Abstract

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U.S. freedom of navigation (FON) operations have recently come under scrutiny with assertions near contested features in the South China Sea. While some question whether they are necessary, there are strong legal and practical imperatives supporting their conduct. FON operations help to ensure that the hard-earned compromises reached during the Third United Nations Conference on the Law of the Sea (1973-1982) are maintained both by word and deed. The Vienna Convention on the Law of Treaties states that “subsequent practice” shall be taken into account in interpreting treaties. If the United States fails to consistently assert is maritime rights under international law, these might be lost over time. Moreover, as a practical matter, rights not used are of little real value.