By Commander Trevor Rush
U.S. Navy

Those who study international law know that state practice is critical to the development of customary international law. Sufficient actions (or inactions) by states can lead to a situation in which international law will support that which it once would not because it has become “customary.” As a Navy lawyer, I am extremely interested in state practice concerning the law of the sea. Within that body of law, there are two areas of state practice that are seemingly more in tension with each other as we move further into the 21st century. The first area is the exercise of the freedom to navigate the world’s oceans. Freedom of navigation supports global prosperity. More than 80 percent of the world’s trade travels by water. Such freedom is also crucial for U.S. national security. Not just for naval warships, but equally so for commercial shipping. The U.S. relies on non-governmental maritime shipping to meet two-thirds of U.S. global sealift requirements. For this and many other reasons, the United States has been concerned for centuries with keeping the oceans open for trade and commerce.

Competing with our interest in navigational freedoms is our state practice in protecting and preserving our vast shoreline, our continental shelf, and our Exclusive Economic Zone (EEZ). Marine environmental law has expanded dramatically over the last several decades in response to valid national and international threats to the global marine environment. An international legal framework for the preservation of the marine environment was established in the 1982 United Nations Convention on the Law of the Sea (UNCLOS). The convention created a coherent universal regime that protected the marine environment while promoting the freedom of navigation. [Author’s note: Though not party to UNCLOS, we have observed the majority of its provisions as customary. The United States must join UNCLOS to maintain our leadership on the international oceans stage and to better use the tools of international law and diplomacy to challenge those nations which seek to restrict freedoms outside of the international law of the sea framework.] UNCLOS has successfully curbed much unilateral protectionism, but the balance between the coastal and maritime states has not remained static. The ability of ships to freely transit the oceans is beginning to erode and deteriorate. Today, it sometimes seems a coastal state need only make a straight-faced argument that foreign ships have the potential to impact their coastal marine environment to gain the requisite international blessing to bar ships from large swaths of ocean, or to control the ships’ movements and operations. This practice has shaped the law such that I believe the greatest threat to navigational freedoms on the ocean is not another nation’s military, but rather over-reaching environmental protectionism and the related “lawfare” that comes with it.

I do not dispute that states have an obligation to protect and preserve the marine environment. As stated by President Obama, “We have a stewardship responsibility to maintain healthy, resilient, and sustainable oceans, coasts, and Great Lakes resources for the benefit of this and future generations.” However, the displacement of high seas freedoms by international environmental regulations should be proportionate to the threat. Today’s shipping can largely claim to be safe, secure, and environmentally friendly. The true threat is from land-based activities, which are the source of 80 percent of ocean pollution. This includes municipal, industrial and agricultural wastes and run-off, as well as the atmospheric deposition of pollutants from power generation, heavy industry, automobiles, etc.

Unfortunately, the land-based threat to the marine environment falls on individual states to control, since it is their sovereign right to pollute their own territory, and states are always extremely reluctant to surrender any sovereignty. Conversely, the authority to control ship-based pollution is an area where there can be an expansion of state sovereignty, which states are generally happy to pursue. Thus, there is a perverse incentive in marine environmental protection to ignore the crux of the problem, while at the same time using the legitimacy of environmental regulation as the perfect vehicle to expand coastal state sovereignty. International opponents of navigational freedom are attracted to marine environmental protection for that very reason.

Strong leadership is required to curb this coastal state power grab. That leadership begins first at home with domestic policy. Unfortunately, our domestic oceans practice has often been fragmented, disjointed, and not in line with our foreign policy. Reform has been pursued for decades. The latest effort began in June 2009, when President Obama established the U.S. Interagency Ocean Policy Task Force to develop recommendations for a national oceans policy, including a framework for policy coordination and an implementation strategy. The Task Force issued an interim report in September (available online) and will finalize its work in December.

The Task Force’s interim report was duly focused on domestic policy, but only briefly mentioned foreign policy concerns including that “our national security interests are tightly linked to navigational rights and freedoms.” Hopefully, when the Task Force issues its framework for coastal and marine spatial planning in December, it will include the guiding principle that our marine environmental protection regimes should be science-based, should not exceed what is minimally necessary to achieve the desired protection, and must protect navigational freedoms.

It is possible to achieve our environment goals while preserving the freedom to navigate. Oceans governance must be viewed as larger than environmental policy, and policymakers must pursue both interagency and international consensus. Failure to take such an approach will cause us to fall far short of the ability to deal with the interconnected ocean and coastal challenges facing the nation, including not only science and technology, environmental, and international matters, but the many other economic, social, and technical issues specifically related to the management of marine resources. U.S. domestic practice will shape the development of an international ocean legal regime that is on the verge of coastal state dominance. Addressing the future threats to freedom posed by coastal states requires transforming our oceans policymaking. You can be sure the world will be watching to see what our state practice will be.

Commander Trevor Rush serves in the United States Navy as a Judge Advocate. He received his LL.M. from the University of Virginia School of Law in 2008 and is currently assigned as an associate professor in the International and Operational Law Department at the Judge Advocate General’s Legal Center and School. The views expressed in this article are those of the author and do not reflect the official policy or position of the United States Navy, the Department of Defense, or the United States Government.