The International Law of the Sea: A Treaty for Thee; Customary Law for Me?

[Craig H. Allen is the Judson Falknor Professor of Law at the University of Washington School of Law in Seattle.]

I would like to begin by thanking Opinio Juris for hosting this timely and important debate on the 1982 Law of the Sea Convention (LOSC) and Julian Ku in particular for inviting me to participate.  My small contribution begins with two caveats.  First, this brief post is by no means a comprehensive examination of the Convention, but rather is limited to the commonly-heard assertion that customary law adequately protects U.S. interests, rendering accession to the Convention unnecessary. Second, having closely followed the Convention for more than three decades and in particular the 2004 and 2007 SFRC hearings and the debates they provoked within and beyond the Senate, I have come to believe there are three identifiable audiences out there.  There are the true believers within both the proponent and opponent camps.  Whether by predisposition, deference to the judgment of another or a prior examination of the Convention, these two groups have already irrevocably committed to their positions.  It is the third group, comprising those who will support ratification of treaties that on balance serve national interests and reject those that fail to do so, and are still uncertain where the LOS Convention falls, that I hope to reach.

The arguments in favor of ratification (technically accession) are many and mostly well-informed, though occasionally exaggerated. Although some of the arguments against ratification appear to reflect what I believe is a misunderstanding of the text of the Convention or excessive skepticism regarding the adequacy or efficacy of the 1994 Implementation Agreement in remedying the U.S. objections to the original 1982 Part XI provisions for deep seabed mining, it would be wrong to dismiss all of the objections as unfounded or, as some have done, launch personal attacks against the opponents.  What some might consider bothersome drawbacks or minor flaws in the Convention that the historical record demonstrates were a necessary, if not entirely welcome, quid pro quo to obtain the convention’s benefits, the opponents might reasonably condemn as fatal to the ratification decision, no matter how attractive the quids might be.

The Nothing-to-be Gained Argument

One persistent argument by the Convention’s opponents is not easily dismissed.  It draws on the consistent position of the U.S. government since President Reagan issued the U.S. Oceans Policy Statement in 1983:  that much of the Convention, including its articles on navigation rights and high seas freedoms, reflects customary international law.

The opponents argue that, if that is true, there is nothing to be gained by ratification. We can enjoy the benefits of the LOSC rules we like without a ratification that will bind us to provisions we don’t like. A combination of persistent objections and self-help countermeasures, including prompt diplomatic protests and occasional “freedom of navigation” operational challenges, like those famously employed by the U.S. Sixth Fleet against Libya in the 1980s, might be necessary to ensure the U.S. can continue to enjoy those navigation rights and freedoms, but for the opponents that course of action is preferable to the binding chains of ratification. Although the argument has a good deal of facial appeal, upon closer examination it shapes a course that fails to adequately protect long-term U.S. maritime interests.

The Fallacy of Composition

Putting aside for now the potential consequences of blurring the distinction between broadly ratified convention regimes and customary law for other subject areas of concern (e.g., the 1977 Additional Protocols to the Geneva Conventions and the Rome Statute for the ICC), one might reasonably ask what response such a position might invite from other states that are now parties to the LOSC.  Could they too circumvent the LOSC’s ban on reservations and avoid its compulsory dispute settlement provisions by renouncing the LOSC in favor of customary law? Even if empirically sound, the argument that nothing is to be gained by the United States in ratifying the LOSC, because all of the best parts either codified existing customary law when the Convention was opened for signature or later (i.e., between 1982 and 1994, when it entered into force) ripened into customary law, must be tested against the fallacy of composition.  If that is true for the U.S., wouldn’t it also be true for the 160+ nations that are already parties to the LOSC?  In short, do regimes founded on rules of customary law better serve the national and shared interests than those founded on treaties?

The common understanding of the fallacy of composition is that what might be true for the one is not necessarily true for the many.  If one person in a crowd stands on tiptoes to see better he might be better off, but if everyone does it no one is better off.  The economist John Maynard Keynes referred to the analogous “paradox of thrift,” by which he meant that if one person saves a substantial portion of her earnings she may be better off, but if everyone saved as much it could lead to a recession.

While I admit the point is more theoretical than real, one prominent Convention critic did, in fact, argue last fall that Japan and India should withdraw their support for the LOS Convention. Would U.S. interests be better served if Japan and India joined the U.S. as non-parties?  Should we also encourage Indonesia, Malaysia and the Philippines to renounce?  Would the U.S. be better off if the International Tribunal for the Law of the Sea and the Commission on the Limits of the Continental Shelf were dissolved?

Critique of the Nothing-to-be Gained Argument

Few would deny that in 2012 much of the Convention reflects customary international law, enforceable by and against nations that are not a party to the Convention (like Colombia, Ecuador, Iran, North Korea, Peru, Turkey and the U.S.).  At the same time, however, key nations — both parties and non-parties to the Convention — might well contest claims that a customary law rule on a particular issue exists or, if it does exist, that the customary law rule is identical to the rule appearing in the Convention, particularly where the 1982 rule differs significantly from the 1958 conventions. If both nations are party to the 1982 LOSC, the Convention rule applies (and, if the U.S. were a party, we might then see the Senate’s proposed LOSC “understandings” put to the test). If, however, one or both of the contesting nations are not parties to the LOSC, the existence of a rule and the specific provisions and outer contours of that rule might well be disputed.  Moreover, a state-party to the LOSC (like China) might argue that, whatever the conventional rule, it is a persistent objector to any putative customary law analogue to the conventional rule vis-à-vis non-parties.

A recent workshop convened by the U.S. Naval War College to examine the legal regime applicable to unmanned marine vehicle systems repeatedly confronted the choice of law question.  Are unmanned surface and undersea vehicles “vessels” under the law of the sea?  Do they enjoy the same navigation rights as vessels?  Do naval UMVs enjoy sovereign immunity? Must they adhere to the 1972 Collision Regulations (COLREGS) Convention?  From the U.S. point of view, the inquiry must begin with the question whether the relevant rule is provided by a treaty or customary law.  If the applicable rules are those in the 1982 LOS Convention, the 1958 Geneva Conventions on the High Seas and/or Territorial Sea and Contiguous Zone (which the U.S. has not renounced) or the COLREGS, the Vienna Convention provides an ordered framework for interpretation.  If, however, the rules are to be derived from customary law, what state practice is relevant to proving the status and content of any rule of CIL?

The Convention reduces, but doesn’t wholly eliminate, the indeterminacy inherent in customary law.  The Convention also provides greater stability and predictability. Here it should be noted that the LOS Convention’s articles can only be amended through an elaborate process that, by design, provides the kind of stability the U.S. has long sought in the maritime domain.  By contrast, customary law rules evolve by the practice of nations asserting, acceding to or persistently objecting to new norms, thus introducing unwelcome uncertainty into the nation’s maritime affairs. Moreover, as Edwin Williamson, President George H.W. Bush’s State Department Legal Advisor noted, the history of customary international law “reflects a steady deterioration of the freedom of the seas to the detriment of the essential rights of maritime nations, such as the U.S.”

Ironically, some of the Convention opponents have, in the past, questioned the existence or binding nature of customary international law, characterizing it as amorphous and arguing that it might be nothing more than a reflection of a coincidence of state interest.  And one well-known LOSC critic writing in an earlier Policy Review piece worried that customary international law today evolves “spontaneously.”  If true, one wonders about the wisdom of relying on such an uncertain and unpredictable source to safeguard the naval mobility and maritime commerce so vital to the United States.

As Senators in the “third group” weigh the potential benefits and costs of accession, prudence counsels that they critically assess the “nothing-to-be-gained” argument. That assessment begins with a challenge to those who offer it as a ground for rejecting the Convention to be clear whether they truly believe in the existence and efficacy of customary law, and in particular a body of customary law that mirrors all of the beneficial provisions in the Convention that the U.S. could take advantage of as a party.  Such questioning will help identify those Convention opponents who use the customary law argument disingenuously, to mask their real preference for an approach to the oceans that rejects both conventional and customary international law.   That was not the position President Reagan asserted in the 1983 Oceans Policy Statement, which announced that:

… the United States will recognize the rights of other States in the waters off their coasts, as reflected in the Convention, so long as the rights and freedoms of the United States and others under international law are recognized by such coastal States. (emphasis added)

It went on to warn that the U.S. was prepared to take the necessary measure to enforce its rights and freedoms under international law:

…the United States will exercise and assert its navigation and overflight rights and freedoms on a worldwide basis in a manner that is consistent with the balance of interests reflected in the Convention

The United States will not, however, acquiesce in unilateral acts of other States designed to restrict the rights and freedoms of the international community in navigation and overflight and other related high seas uses.

On Balance, Which Rule Set Better Protects U.S. Maritime Interests?

Those who believe the costs of ratification outweigh the benefits, because most of the benefits are already provided by customary law, might want to consider the global state of affairs that would unfold if the 160+ nations that are already a party to the Convention—including the critical straits states—chose to follow the U.S. lead and eschew adherence to a meticulously drafted convention in favor of malleable customary law rules.  While the Convention’s 320 articles and 9 annexes are not always a model of precision, one can certainly question whether the Convention ambiguities the opponents point to are any clearer under the corresponding customary law and whether rule stability is better served by a conventional regime or the practice of 160+ states.

In the end, I confess that my views on the Convention are largely shaped by my years in the Coast Guard and sea service on maritime patrol cutters spanning nearly two decades.  As a mariner and maritime law enforcement officer, I developed a strong preference for codified rules over a mere coincidence of interests that arguably evolves spontaneously to produce only amorphous rules.  Nearly two decades in the classroom after coming ashore have not lessened my concern for the need for clarity and predictability in the law for the benefit of those who operate on, under and over the sea.