Freedom of navigation
Updated: 2011-11-17 08:05
By Lu Yang (China Daily)
The law of the sea has no bearing on disputes over maritime sovereignty and jurisdiction over certain sea areas
Recently, freedom of navigation in the South China Sea has often been talked about in the media. Few people, however, have taken the trouble to explore its original meaning.
In fact, freedom of navigation is not a label that can be used randomly. It is a legal rule, which was established centuries ago based on economic, social and political demands and circumstances.
The oceans, which cover 70 percent of the Earth's surface, are important channels of communication for peoples on different continents. Therefore, the idea that the oceans must be kept open and free reflects the simple desire of human beings to communicate and trade with one another. In 1609, Hugo Grotius, a Dutch jurist who is known as "the father of international law", published his book Mare Liberum (The Free Sea), which formulated the notion of the freedom of the seas. He developed this idea into a legal principle. According to his view, everyone had a right under international law to sail freely and trade with others. Grotius' doctrine was in support of Dutch trade with East India via sea routes. Britain was the Netherlands' main maritime rival and a counter "closed sea" theory was proposed by the Englishman John Seldon. However, Grotius was the winner of this debate, as freedom of the seas finally became a universally recognized legal principle, as it went hand in hand with key words such as communication, trade and peace, and was inseparable from being fair and open, and was in the interests of human society as a whole.
As oceans have become more utilized by people, the principle of freedom of navigation has been developed in international law. The 1982 United Nations Convention on the Law of the Sea (UNCLOS) successfully codifies the legal rules governing freedom of navigation and stipulates in Article 90 that: "Every State, whether coastal or land-locked, has the right to sail ships flying its flag on the high seas". UNCLOS also states in Article 87 that "freedom of the high seas is exercised under the conditions laid down by this Convention and by other rules of international law" and "these freedoms shall be exercised by all States with due regard for the interests of other States in their exercise of the freedom of the high seas". These provisions indicate clearly that freedom of navigation has evolved from an abstract concept and absolute norm into a body of specific rules with certain conditions under international law.
In accordance with the current international law of the sea, freedom of navigation is mainly applicable to the high seas and Exclusive Economic Zones of coastal states. However, the world hasn't forgotten to accommodate passage through other ocean spaces. Thus the rule of "innocent passage" was adopted with regard to the territorial seas of coastal states and "transit passage" for straits used for international navigation. These three principles together guarantee the navigational rights of all states. Since 2005, the United Nations General Assembly resolutions on oceans and the law of the sea by repeatedly using exactly the same text call upon states to ensure freedom of navigation, the safety of navigation and the rights of transit passage and innocent passage. This demonstrates that freedom of navigation has obtained broad, consistent and ever-lasting consensus among the international community.
Freedom of navigation is essentially a right of an independent and open nature, which means that exercising the right of freedom of navigation does not generate, nor depends upon, any other right. As Grotius wisely declared, "no man is ignorant that a ship passing the seas leaveth no more right than the way thereof." Therefore, freedom of navigation has no bearing on disputes among countries concerning maritime sovereignty, sovereign rights and jurisdiction over certain sea areas. Any attempt to force a connection between these two issues will only restrict freedom of navigation and undermine its independent and open nature.
However, even as a legal rule, freedom of navigation does not operate in a vacuum and it has inevitably encountered problems in its application. For example, the Proliferation Security Initiative, which was sponsored by the United States and other countries, is challenged by some countries on the grounds that the initiative contravenes UNCLOS, in particular its provisions relating to freedom of navigation and the right of innocent passage. Compulsory pilotage, exercised by some countries in their straits, is also questioned by some countries for its non-conformity with the provisions of UNCLOS regarding transit passage in the straits used for international navigation.
Of course, the above controversies are far from overthrowing the principle of freedom of navigation itself. In reality, the challenges to freedom of navigation come from those specific problems affecting safety of navigation. One category consists of technical problems, including maritime accidents and pollution incidents that block shipping lanes. Another category consists of non-traditional security threats, including piracy, armed robbery against ships and terrorist activities on the sea. The most fundamental and effective way to safeguard freedom of navigation is to enhance cooperation in these fields.
The international legal regime governing maritime safety is already in place, with the International Maritime Organization playing a central role that is widely recognized by the international community. At the regional level, many effective cooperation initiatives have also been carried out, such as the Cooperative Mechanism for the Straits of Malacca, initiated by Singapore, Malaysia and Indonesia, and the Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia. There is no doubt efforts in these fields can be strengthened.
It can be concluded then, that freedom of navigation consists of a complete and mature set of international legal rules, which have already obtained universal acceptance, and has nothing to do with disputes over maritime sovereignty and jurisdiction. Also, efforts to maintain freedom of navigation shall be cooperation in the technical and non-traditional security areas.
When people talk about freedom of navigation in the South China Sea, they always connect freedom of navigation with the South China Sea disputes. Freedom of navigation has even become grounds for some countries to call for "establishing rules" by "a multilateral mechanism" to "regulate" the conducts of certain states. It is questionable whether the purpose of this idea is to maintain or to restrain freedom of navigation. Or are there some other motives?
The author is a Beijing-based
scholar of international relations.
(China Daily 11/17/2011 page10)