UNCLOS as Customary Law: Legal Constraint and Strategic Instrument in U.S. Maritime Policy
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Abstract
It is imperative to ensure stability and security within maritime matters. Further, it is imperative that the
United States embrace the tenets of UNCLOS. Although it has not ratified it, the United States of America has
observed UNCLOS’ legal framework, relying on its principles to ensure its Indo-Pacific alliance network (i.e., the
QUAD and AUKUS agreements) and to conduct FONOPs, such as the annual military exercise Talisman Sabre.
This essay argues that the United States treats the United Nations Convention on the Law of the Sea as binding
customary law: a benchmark to legally structure FONOPs and alliance-based maritime security. The adherence to UNCLOS illustrates international law to be a strategic instrument and a constraining framework in the United
States’ deterrence strategy, such as with U.S.-China great-power competition. In doing so, the United States would
be a stronger ally in the Indo-Pacific, assuaging the fears of allies such as Australia, Japan, and South Korea.
Furthermore, UNCLOS represents a key component of American deterrence: by upholding freedom of navigation
and sovereignty, China would be deterred from becoming more aggressive towards Taiwan, preventing a potential
military invasion or blockade.
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