Frozen in Time: A Fresh Look at the Law of the Sea and Why the United States Continues to Fight against It
Quicktabs: Citation
Every Chairman of the US Joint Chiefs of Staff has supported UNCLOS since it was originally sent to the Senate for advice and consent in 1994.174 Joining UNCLOS would in no way impede the US military in accomplishing its global objectives or in asserting maritime power. Every commander of the various US combatant forces as well as the Director of National Intelligence has confirmed this claim.175 Additionally, joining UNCLOS would require the military to make no changes to existing policy with respect to the use of oceans.176 In other words, UNCLOS would not adversely affect the US military in any way; in fact, acceding to the Convention would significantly enhance US strategic goals and strengthen US ability to apply maritime power effectively.177
Since UNCLOS would not require any change in US maritime policy, some have argued that there is, therefore, no appreciable benefit to joining the Convention. On the contrary, UNCLOS would equip the US with certain diplomatic tools that would otherwise be unavailable.178 Proponents concede, however, that operationally nothing would change in terms of US Naval procedure.179 Nevertheless, it remains difficult to deny that UNCLOS would provide measurable benefits towards the US Navy's ability to achieve its maritime objectives.180
For example, at one point, the Libyans had a very restrictive interpretation of freedom of the seas as it applied in the Gulf of Libya.181 During this time the United States pursued a policy where it would deliberately sail out into waters, considered by the Libyans, as waters in which they possessed a greater degree of jurisdiction than the United States recognized.182 Such policies involved a considerable amount of risk placed on both the forces undertaking the exercises in question, and on aggravating an already delicate diplomatic situation. Therefore, although the US will always exercise its navigational rights, the tools available within the UNCLOS framework reduce the level of risk inherent in the continual exercise maritime power in order to maintain freedom of navigation.183 Another example of the diplomacy enhancing features UNCLOS is illustrated through China, a UNCLOS State-party, who has drawn widespread criticism for its exaggerated jurisdictional claims with respect to the South China Sea, way beyond that of what is legally afforded to it under UNCLOS.184 However, as it stands today, the United States is placed in quite the diplomatic quagmire, attempting to deter Chinese derogation from UNCLOS principles that itself has failed to formally agree to. Indeed this, along with other similar endeavors have consistently been undermined due to the tenuous diplomatic position of insisting compliance with a legal regime which the US itself is not even a party.185
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