Existing customary international law is sufficient to protect U.S. interests without ratifying UNCLOS
U.S. security interests in the oceans have been adequately protected to date by current U.S. ocean policy and implementing strategy. U.S. reliance on arguments that customary international law, as articulated in the non-deep seabed mining provisions of the 1982 Law of the Sea Convention, and as supplemented by diplomatic protests and assertion of rights under the Freedom of Navigation Program, have served so far to preserve fundamental freedoms of navigation and overflight with acceptable risk, cost and effort.
Quicktabs: Arguments
With regard to freedom of movement: President Reagan’s 1983 Ocean Policy Statement stated that UNCLOS “contains provisions with respect to traditional uses of the oceans which generally confirm existing maritime law and practice . . ..”16 The International Court of Justice reached a similar conclusion in the 1984 Gulf of Maine case, albeit in the context of the continental shelf and EEZ articles, indicating that the Convention’s provisions were reflective of customary international law.17 In short, today, all of the important provisions of UNCLOS dealing with freedom of movement, such as the rights of innocent passage, transit passage, archipelagic sea lanes passage, and high seas freedoms seaward of the territorial sea, are considered by virtually all nations as a reflection of customary international law that is binding on all nations. Both our commercial shipping and military forces have exercised and enjoyed these rights for the past 25 years, during which time the United States has not been a party to UNCLOS. Clearly, the United States does not have to become a party to the Convention to exercise its navigational rights and freedoms worldwide. Iran is the only country that continues to maintain that the right of transit passage through the Strait of Hormuz applies only to State Parties to the Convention. What we need more than membership in another treaty is a coherent national policy that supports freedom of navigation and a strong Navy that can challenge excessive coastal state claims that purport to curtail our freedom of movement and restrict our access to the world’s oceans.
In 1993, the Department of Defense issued an Ocean Policy Review Paper on “the currency and adequacy of U.S. oceans policy, from the strategic standpoint, to support the national defense strategy.” The paper concluded that U.S. national security interests in the oceans have been protected even though the U.S. is not party to UNCLOS:
U.S. security interests in the oceans have been adequately protected to date by current U.S. ocean policy and implementing strategy. U.S. reliance on arguments that customary international law, as articulated in the non-deep seabed mining provisions of the 1982 Law of the Sea Convention, and as supplemented by diplomatic protests and assertion of rights under the Freedom of Navigation Program, have served so far to preserve fundamental freedoms of navigation and overflight with acceptable risk, cost and effort.
Almost 20 years later, there is no evidence that suggests a change in circumstances such that U.S. accession to UNCLOS has become essential to the successful execution of the U.S. Navy’s global mission.
Most of the UNCLOS navigational provisions have long been recognized as customary international law. The convention’s articles on navigation on the high seas (Articles 86–115, generally) and passage through territorial waters (Articles 2–32, generally) were copied almost verbatim from the Convention on the High Seas and the Convention on the Territorial Sea and the Contiguous Zone, both of which were adopted in 1958. The United States is party to both conventions, which are considered to be codifications of widely accepted customary international law.
Similar to other multilateral conventions, such as the Vienna Convention on Diplomatic Relations, UNCLOS is said to “have codified settled customary international law or to have ‘crystallized’ emerging customary international law.” UNCLOS codified customary law relating to navigation on the high seas and through territorial waters and “crystallized” emerging customary law, such as the concepts of “transit passage” through international straits and “archipelagic sea-lanes passage.” As summarized by Defense Department official John McNeill in 1994, UNCLOS “contains a comprehensive codification of long-recognized tenets of customary international law which reflect a fair balance of traditional ocean uses.” In short, the convention’s navigational provisions have attained such a status that all nations—UNCLOS members and nonmembers alike—are expected to adhere to them.
In theory, I agree with Messrs. Cartner and Gold "Commentary in Reply to “Is it Time for the United States to Join the Law of the Sea Convention”." Journal of Maritime Law & Commerce. Vol. 42, No. 1 (January 2011): 49-70. [ More (6 quotes) ] that “customary law . . . is not as good as conventional law” because customary law is subject to change and written words of a treaty should provide more certainty. However, I do question their follow-on conclusions that customary law is “certainly not as efficient in resolving disputes between sovereigns for maintaining global order” and that UNCLOS, “being nearly universal, takes away a great deal of the uncertainty in the application of customary law for all cases.” Although I concur that UNCLOS was a great achievement and that the United States got much of what it wanted in the treaty text, like any other “framework” agreement, it is subject to widely varying interpretation or even misapplication by States Parties. As a result, UNCLOS has unfortunately not had a dispositive calming influence on dispute settlement or pre- vented the continued proliferation of excessive maritime claims.
Today, excessive maritime claims continue to proliferate, particularly in the area of straight baselines and coastal state jurisdiction in the EEZ. Although the international community has witnessed a decline in the num- ber of excessive territorial sea claims (only nine remain today) , there are still three States Parties to the Convention that continue to claim a territorial sea in excess of 12 nm, even though UNCLOS Article 3 specifically and clearly limits the breadth of the territorial sea to 12 nm.22 In addition, over 40 nations restrict the right of innocent passage for warships in one way or another, even though efforts during The Third United Nations Conference on the Law of the Sea (UNCLOS III) to provide coastal states such authority failed to achieve majority support. Furthermore, the plain language of Article 17 specifically states “ships of all States . . . enjoy the right of inno- cent passage.”23 Although all of these illegal claims have been the subject of diplomatic protests or operational challenges by the United States, U.S. accession to UNCLOS will not cause these nations to rollback these excessive claims.
Those who support UNCLOS, in partic- ular the U.S. Navy, argue that it is essentially a deal: The U.S. gets valuable legal rights of navigation in return for ceding to the ISA some regulatory powers that, since the 1994 agreement, are economically modest and politically unthreatening.
An obvious retort to this is that the U.S. already enjoys navigation and other rights under customary international law and earlier conventions. We gain nothing new by signing the treaty. The Navy responds that we would be on stronger ground in assert- ing our rights against challenge if we were supported by ITLOS (the International Tribunal for the Law of the Sea) in Ham- burg. But signatories to UNCLOS are bound to respect our rights under customary law anyway. Small powers are unlikely to challenge those rights. If a great power were to do so, the U.S. Navy is the only force capable of enforcing them. And that is so whether or not we are signatories to UNCLOS.
The principal argument in favor of ratification seems to rest on the assumption that the world needs a comprehensive treaty to clarify and unify the law of the sea; that the alternative is chaos. In my opinion, this argument for ratification is overstated. The legal result of not ratifying the UNCLOS is not chaos in the law of the sea; it is the continued development of that dynamic body of law. Indeed, in areas of changing values and technology our own common law works best without codification.
Sometimes certainty is the highest interest of law-makers. With regard to the law of the sea, however, the fate of the four United Nations Law of the Sea Conventions coming out of Geneva in 1958 is pertinent evidence that other factors that influence the behavior of states can be more important than certainty. The United States ratified all four of those Conventions in 1961 and first violated them when we extended our exclusive fisheries zones to twelve miles in 1966. If the law raises certainty to a higher position than is tolerable in light of those factors favoring change, change occurs nonetheless and the law is degraded.
Supporters note that many of the treaty's "freedom of the seas" provisions favor U.S. interests. But the United States already receives the benefits of these provisions because, as Negroponte and England acknowledged, they are "already widely accepted in practice." They maintain that ratifying the convention would nonetheless provide "welcome legal certainty." In recent years, however, the United States has not received much legal certainty from international tribunals dominated by non-American judges, and what it has received has not been very welcome. There is little reason to expect different results from these tribunals.
President Bush invokes a different rationale for ratifying the convention, arguing that it would "give the United States a seat at the table when the rights that are vital to our interests are debated and interpreted." What this really means is that American views of the law of the sea, even on issues related to national security, could be outvoted by a majority in an international forum. How can this make us safer?
The United Nations did not invent the law of the sea. There has been a law of the sea in effect for many centuries. When Spanish and Portuguese explorers first charted new sea routes to the Americas and Asia, their governments imagined that they could lay claim to all the ocean vastness in between. Successful challenges by new maritime powers, especially Britain and Holland, soon established the principle that the high seas should be open to all. In the early 17th century, the Dutch jurist Hugo Grotius published an extremely learned treatise which summed up the new approach in a catchy phrase: “freedom of the seas.” To secure freedom on the seas, there had to be rules applicable to most situations that also acknowledged—and thereby constrained—necessary exceptions. These rules were developed over centuries in a process of mutual accommodation—and occasional challenge by war at sea—among major maritime powers. Nearly all of this law was “customary law,” meaning that it reflected actual practice among maritime states—including particular agreements among particular states—without being set down in any formal document.