Evidence: Recently Added
What is at stake is nothing less than the United States’ position as the world’s leading maritime power. Clearly, U.S. refusal to ratify this Convention, widely regarded as one of the most important international agreements ever negotiated, raises fundamental questions regarding not only the future of legal regimes applicable to the world’s oceans, but also U.S. leadership in promoting international law and order. This, in turn, makes the United States little more than an outsider looking in at the most comprehensive maritime treaty ever written and perhaps most perniciously, unable to propose any future amendments and less able to effectively counter other states’ proposed changes in treaty law that would be disadvantageous to the United States.6
In his remarks soon after assuming the post of Chief of Naval Operations, Admiral Mullen challenged the Navy “not to accept the status quo.” On the 25th anniversary of the signing of the Law of the Sea Convention, the Navy and its Sea Service partners must take an even more prominent leadership role in mustering public support for this treaty—support so overwhelming that the Senate will be motivated to bring it to a floor vote. To do anything less would be to forgo a viable path to stability and safety at sea and cede the world’s oceans to uncertainty and anarchy.
Moreover, numerous states question the United States’ very right to enforce navigational freedoms conferred by the Convention when it is not party to it. It is likely that U.S. accession would decrease the number of state claims inconsistent with international law and also decrease the number of freedom of navigation challenges the Navy would have to conduct.
The global demands on the Navy and Coast Guard come at a time when the size of the nation’s Fleets has shrunk to unprecedented low levels. As fewer and fewer U.S. ships are available to support U.S. and coalition interests worldwide, it is more imperative than ever that these ships be able to exercise the rights of innocent passage, transit passage, and archipelagic sea lanes passage without asking prior permission or providing prior notification to coastal states. Equally important is the right of warships to operate freely and conduct military activities in the exclusive economic zones of all nations. These are rights that are being increasingly challenged by coastal nations.
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
Additionally, two commissions, the National Commission on Oceans Policy and the Pew Oceans Commission, have argued in the strongest possible terms for U.S. ratification. The first, chaired by former-CNO Admiral James Watkins, in its 20 September 2004 report, An Ocean Blueprint for the 21st Century, unanimously recommended adoption and concluded: “Time is of the essence if the United States is to maintain its leadership role in ocean and coastal activities.” The presidential response to the report reflected the ongoing support of the executive branch—and especially the current administration—that “As a matter of national security, economic self-interest, and international leadership, the Bush administration is strongly committed to U.S. accession to the UN Convention on the Law of the Sea.”3
Yet proponents of U.S. accession to UNCLOS maintain that the United States cannot fully benefit from these navigational rights unless it is a party to the convention, which “provides” and “preserves” these rights. This is simply incorrect. The United States enjoys the same navigational rights as UNCLOS parties enjoy.
At the December 1982 final plenary meeting of the Third United Nations Conference on the Law of the Sea, some nations took the opposite position, contending that any nation that chose not to join the convention would forgo all of these rights. On March 8, 1983, the United States, exercising its right to reply, expressly rejected that position:
Some speakers discussed the legal question of the rights and duties of States which do not become party to the Convention adopted by the Conference. Some of these speakers alleged that such States must either accept the provisions of the Convention as a “package deal” or forgo all of the rights referred to in the Convention. This supposed election is without foundation or precedent in international law. It is a basic principle of law that parties may not, by agreement among themselves, impair the rights of third parties or their obligations to third parties. Neither the Conference nor the States indicating an intention to become parties to the Convention have been granted global legislative power....
The United States will continue to exercise its rights and fulfil its duties in a manner consistent with international law, including those aspects of the Convention which either codify customary international law or refine and elaborate concepts which represent an accommodation of the interests of all States and form part of international law.
In sum, it is not essential or even necessary for the United States to accede to UNCLOS to benefit from the certainty and stability provided by its navigational provisions. Those provisions either codify customary international law that existed well before the convention was adopted in 1982 or “refine and elaborate” navigational rights that are now almost universally accepted as binding international law.
One way to determine the extent to which UNCLOS’s navigational provisions have achieved the status of binding international law is to study the behavior of nations. Behavior in conformity with the convention—known as “state practice”—is additional evidence that its navigational provisions reflect international law. Indications that a state is acting in conformity with international law may be found in states’ “legislation, the decisions of their courts, and the statements of their official government and diplomatic representatives.” A nation’s inaction regarding a particular navigational provision may also be viewed as state practice because it can be deemed to be acquiescence. The consistent practice of states—maritime states, coastal states, UNCLOS members, and nonmembers—indicates that the UNCLOS navigational provisions are almost universally accepted law. The Restatement of the Law, Third, of the Foreign Relations Law of the United States notes:
[B]y express or tacit agreement accompanied by consistent practice, the United States, and states generally, have accepted the substantive provisions of the Convention, other than those addressing deep sea-bed mining, as statements of customary law binding upon them apart from the Convention.
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 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.