Freedom of Navigation program is not a long-term viable solution to address excessive claims
The United States can assert its navigational rights at any point on the globe, but it cannot be assured of a local superiority of forces simultaneously at every location of potential maritime dispute. Moreover, obvious practicality compels restraint—against both allies and potential adversaries—over maritime disputes. Even the peaceful and non-confrontational Freedom of Navigation (FON) program may present diplomatic costs and pose risks inherent in physical challenges,
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Suggestions that somehow our maritime interests can be asserted solely through robust naval power are not relevant to the real world. The overwhelming majority of ocean disputes do not involve enemies or issues that warrant military action. As Admiral Patrick Walsh testified at our first hearing in 2007"Statement of Admiral Patrick M. Walsh: Accession to the 1982 Law of the Sea Convention and Ratification of the 1994 Agreement Amending Part XI of the Law of the Sea Convention ." Testimony before the Senate Foreign Relations Committee, September 27, 2007. [ More (4 quotes) ]: "Many of the partners that we have in the Global War on Terror who have put life, limb, and national treasure on the line are some of the same ones where we have disagreements on what they view as their economic zone or their environmental laws. It does not seem to me to be wise to now conduct Freedom of Navigation operations against those very partners that are in our headquarters trying to pursue a more difficult challenge ahead of us, a Global War on Terror." Even a mythical 1,000 ship U.S. Navy could not patrol every strait, protect every economic interest, or assert every navigational right. Attempting to do so would be prohibitively expensive and destructively confrontational.
A fourth reason arguing for the importance of the Convention to our national security equation is the growing political and military costs of the U.S. Freedom of Navigation Program in the face of new excessive maritime claims by an increasing number of states. This program, initiated in 1979 by the Carter Administration, and continued by the Reagan, Bush, and Clinton Administrations, combines diplomatic action and operational assertion of our navigational rights to discourage state claims inconsistent with13 international law as reflected in the Convention. On the diplomatic front, the U.S. State Department protests maritime claims that are inconsistent with international law. Since the inception of this program, well over 100 such protests have been filed by the United14 States. Over the same time period, U.S. military ships and aircraft have exercised navigational rights and freedoms in all oceans against excessive claims of more than 5015 countries with numerous operational assertions every year. Clearly, the scope of this program alone makes it highly desirable for the United States to decrease the number of contentious ocean issues. Moreover, the political costs and military risks of such unilat- eral actions have been high in the past and can only increase in a changing world order.
If appropriately resourced by the combatant commanders, the Freedom of Navigation program is effective, but it is not a panacea. The United States can assert its navigational rights at any point on the globe, but it cannot be assured of a local superiority of forces simultaneously at every location of potential maritime dispute. Moreover, obvious practicality compels restraint—against both allies and potential adversaries—over maritime disputes. Even the peaceful and non-confrontational FON program may present diplomatic costs and pose risks inherent in physical challenges,148 as was displayed by the Black Sea bumping incident in February 1988. In 1996, the National Intelligence Council concluded that in some cases the costs, disadvantages, or risks of physically challenging excessive claims might be greater than the benefits.149 Of course, coastal states understand this calculus and will try to manipulate it to their advantage since they have an incentive to compel the inter- national community to acquiesce in their excessive maritime claims.
Those who point to the freedom with which the U.S. Navy, in particular, has roamed the seas, and to the success of the Freedom of Navigation Program, miss many of the nuances of the way in which the Navy uses the seas. The United States takes extraordi- nary measures to ply the oceans responsibly. There have only been a small number of incidents of violence involving U.S. forces because we are very selective about when and where we choose to challenge excessive maritime claims.59 Naval commanders are given extensive guidance, primarily in The Commander's Handbook on the Law of Naval Operations60, regarding their rights and duties, and they are enjoined to respect the rights of coastal states to ocean areas under their purview. Additionally, they are charged specifically to provide advance notice and reporting if they are entering into  areas in which an international incident is likely.61 Where a Freedom of Navigation challenge of an illegal maritime claim is deemed appropriate, this challenge is not del- egated to the local commander, but must be thoroughly reviewed by higher authority before any Freedom of Navigation operation can take place.62 These factors have the practical effect of placing real-world limitations on U.S. operations—limits that would not exist if illegal claims were rolled back to conform with the Law of the Sea Convention.63
Regardless of the outcome of contention on, over, or under the oceans, as the world's most influential maritime power and leader of the de facto maritime coalition, oceanic conflict is ultimately unhelpful to the United States. The deaths of Libyan pilots as the result of United States protest of excessive maritime claims should be as upsetting to the United States as the death of an American airman in 1992 when the aircraft he was flying in was shot at by a Peruvian fighter aircraft 175 miles from the coast of Peru.64 Both incidents reflect a breakdown of the rule of law for the oceans and are ultimately bad for the United States.
One method the United States has adopted to deal with state claims inconsistent with international law as reflected in the Convention is the Freedom of Navigation (FON) Program. Initiated in 1979 and continued by every administration since then, this program combines diplomatic action and operational assertion of our navigation rights to discourage state claims inconsistent with international law as reflected in the Convention. But the political, economic, and military costs of this program are not trivial, and for a Navy stretched thin to meet its urgent operational commitments, every freedom of naviga- tion challenge comes with an opportunity cost somewhere else—to say nothing of the risks to the Sailors on those ships. This was put forcefully by then-CNO Vern Clark in a letter to the Senate Armed Services Committee:
For the many years we’ve remained outside the Convention, we’ve asked our young men and women to conduct operations, sometimes at great risk, to challenge the exces- sive maritime claims of other states. Joining the Law of the Sea Convention will let our people know that, when they’re operating in defense of this nation, far from our shores, they have the backing and the authority of widely recognized law to look to, rather than depending only upon the threat or use of force.
The tense showdown between the United States People’s Republic of China over the collision between a Chinese fighter and a Navy EP-3 aircraft—an event that occurred in China’s exclusive economic zone—is but one indication of the risks described by Admiral Clark. sufficient for US to secure its naval rights The tense showdown between the United States and the
These excessive claims are cause for particular concern because they cover the full spectrum of maritime possibilities and because they are being made by the full spectrum of the community of nations. For example:
- Argentina, Italy, Panama, and Russia have historic bay claims that do not comply with international norms.
- Canada, China, Costa Rica, North Korea, Portugal, Vietnam, and others have sig- nificant excessive baseline claims.
- Cape Verde, Indonesia, and the Philippines have sought to impose restrictions on archipelagic sea lanes passage not contemplated by the 1982 Convention.
- China, Djibouti, Egypt, Indonesia, North Korea, Pakistan, and the Philippines have articulated various nonconforming restrictions on innocent passage.
- Argentina, Canada, Italy, Spain, and others have sought to impose restrictions on straits used for international navigation.
- Brazil, Ecuador, and Peru have restrictions on aircraft overflight in their exclusive economic zones inconsistent with the convention.
- Cape Verde, Finland, Iran, Sweden, and others have declared warships to be sub- ject to special coastal state regulation.34
This is just a sampling of excessive maritime claims, but the diversity of types of claims and the character and numbers of nations involved suggest that continuous U.S. challenges to these will require substantial effort. The financial and diplomatic costs, as well as the overall risks associated with the use of such forces, are likely to be substan- tially higher in the absence of a specific, binding treaty, and the long-term effectiveness of challenge programs remains doubtful in the view of some commentators.35 Many of the nations making claims that the United States considers excessive assert that the convention is a legal contract, the rights and benefits of which are not necessarily available to non-parties. The continual counter-assertion by the United States that these rights and benefits are embodied in customary international law may be difficult to sustain. The situation may well have been summed up best by Rear Admiral Schachte: "The political costs and military risks of the Freedom of Navigation Program may well increase in the changing world order."36
The critics also show little understanding of the realities of asserting the rule of law in the world's oceans. They seemingly contend that the United States can protect its interests by shooting its way around the oceans rather than developing a stable and favorable legal regime, defensible with force if necessary, that provides a legal basis for naval and air operations. The United States simply cannot shoot its way to acceptable resolutions of oceans disputes with Canada, Chile, Brazil, India, Italy and other democracies. Nor is it realistic to ignore the effects of law and international agreements in our interactions with others. It is hubris to believe that the United States can disregard the law without consequences, as it creates scenarios where other nations follow suit, thus compromising interests on both sides. Ironically, at a time when the president of the United States is urging others toward the rule of law as a foreign policy interest, the critics voice only disdain for that principle.
The assertion that the US can enjoy all of the rights enjoyed afforded to State Parties without itself actually becoming a signatory rests on an illusory interpretation of how customary international law is applied. Customary international law, along with treaties, are the only two sources of international law considered to be binding.186 Customary international law is formed by the convergence of two fundamental elements: State practice (usus) and the corresponding views of States that a particular norm exists (opinio juris).187
Taking into account how customary international law is formed, consider opponents' reliance on a Department of Defense Ocean Policy Review Paper from 1993,188 expressing that the Department of Defense's Freedom of Navigations Program was actively preserving the fundamental freedoms of navigation and over-flight.189 However, from 2007-2012, the number of countries the United States has challenged under this same program has tripled.190 This manifestly indicates a change in State practice and, thus arguably, a change in customary international law. Continuing to rely on an over twenty-year-old policy paper is doctrinally antithetical to customary international law and severely inadequate for preserving US maritime interests. Therefore, from a national security perspective, UNCLOS is now a more important legal regime than it was a few decades ago.191 Continued dependence on hard power and gunboat diplomacy is not a sustainable option for US foreign policy going forward.192
I also believe, Mr. Chairman, that it is short-sighted to argue that, if the customary law system somehow breaks down, the United States, as the world’s pre-eminent naval power, wouldn’t have any trouble enforcing it. Clearly, our Navy could engage in such an effort. However, enforcing our navigational rights against every coastal nation in the event the Convention and customary law systems collapse would be very costly, both politically and economically. Moreover, it would divert our forces from their primary missions, including the long-term global war on terrorism. Excessive coastal nation claims are the primary threat to our navigational freedoms. Those claims can spread like a contagious virus, as they did in the 20th Century. The added legal security we get from a binding treaty permits us to use our military forces and diminishing resources more efficiently and effectively by concentrating on their primary missions.
U.S. adherence to the Convention is not necessary because navigational freedoms are not threatened (and the only guarantee of free passage on the seas is the power of the U.S. Navy).
- It is not true that our navigational freedoms are not threatened. There are more than one hundred illegal, excessive claims affecting vital navigational and overflight rights and freedoms.
- The United States has utilized diplomatic and operational challenges to resist the excessive maritime claims of other countries that interfere with U.S. navigational rights under customary international law as reflected in the Convention. But these operations entail a certain amount of risk – e.g., the Black Sea bumping incident with the former Soviet Union in 1988.
- Being a party to the Convention would significantly enhance our efforts to roll back these claims by, among other things, putting the United States in a far stronger position to assert our rights and affording us additional methods of resolving conflict.
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The author argues that U.S. Freedom of Navigation Operations (FONOPs) in East Asia are increasingly provocative and prone to accidents and they could lead to "a long, drawn-out crisis that, even if it stops short of war, would prove highly disruptive to U.S. efforts to cooperate with China on areas of great import."
[ More ]The author argues that U.S. shows of force in the South China Seas through freedom of navigation operations are counterproductive and risk turning our allies against us. Instead the author argues a diplomatic approach would be more proportional and "seems to be sufficient for other nations, including maritime powers whose rights the U.S. claims to be protecting."
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