COMPARE
Opponents of UNCLOS claim that the United States should not become a party because the United States already enjoys the benefits of UNCLOS through customary law and, therefore, should not unnecessarily incur the treaty's burdens. However, this ignores the fact that customary law can change and can also be influenced by how parties to UNCLOS decide to interpret its provisions.
- Relying on customary international law to preserve freedom of navigation is not timely enough of a response for commercial interests
- Customary international law is no longer viable because of the increasing number of excessive claims
- While the risks to the US from its non-party status may have been negligible, this is no guarantee that this will continue
- China and other counties are reinterpreting customary international law to detriment of the U.S.
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VERSUS
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.
- Empirically, UNCLOS has been no more effective than customary international law at reducing excessive claims and maritime conflict
- Even as a non-party to UNCLOS, US navigational rights have been protected for decades through customary international law
- Ratification of UNCLOS would trade existing stability provided by customary international law for rule by tribunals
- Customary international law already protects U.S. navigation rights
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