Freedom of navigation
Freedom of navigation is a principle of law of the sea that ships flying the flag of any sovereign state shall not suffer interference from other states when in international waters, apart from the exceptions provided for in international law. In the realm of international law, it has been defined as “freedom of movement for vessels, freedom to enter ports and to make use of plant and docks, to load and unload goods and to transport goods and passengers". This right is now also codified as Article 87a of the 1982 United Nations Convention on the Law of the Sea.
History
Development as a legal concept
Freedom of navigation as a legal and normative concept has developed only relatively recently. Until the early modern period, international maritime law was governed by customs that differed across countries’ legal systems and were only sometimes codified, as for example in the 14th-century Crown of Aragon Consulate of the Sea. These customs were developed and employed in local jurisprudence, often cases in prize courts regarding the capture of goods on the high seas by privateers. Under the Consolato customs, "enemy goods can be captured on neutral ships and neutral goods are free on board enemy's ships." This established a framework under which neutral shipping was not inviolable in time of war, meaning navies were free to attack ships of any nation on the open seas, however the goods belonging to neutral countries on those ships, even if they were enemy ships, were not to be taken. This legal custom, which hereafter will be referred to as the consolato rule, was long observed by England, France, and Spain, as major naval powers.New theories about how to run the maritime world, however, started to emerge as time went on and maritime trade, travel, and conquest by the great European naval forces began to stretch beyond of European waterways.Two main schools of thought emerged in the 17th century. The first, championed most famously by John Selden, promoted the concept of mare clausum, which held that states could limit or even close off seas or maritime areas to access by any or all foreign ships, just as areas of land could be owned by a state, limiting foreign activity there. Other notable supporters of this idea included John Burroughs and William Welwod. In the larger geopolitical context, mare clausum was backed by the major naval and colonial powers of the day, including Spain and Portugal. As these powers extended their reach to the New World and across Africa and Asia, they wished to consolidate control over their new empires and access to trade and resources there by denying other countries access to the sea routes leading to these areas. By quite literally closing off access to the seas using their naval muscle, these states would profit handsomely from the growing maritime trade routes and foreign colonies.
Meanwhile, the Dutch Republic, the dominant European trade carrier, championed a different rule, known as mare liberum , summarized as "a free ship free goods." This meant that even enemy goods, always excepting contraband, were inviolate in neutral bottoms, making neutral ships off-limits for attack on the high seas. For the Dutch Republic, this was essential in order to secure the safety and viability of their extensive trade network. This concept was coined by Hugo Grotius, a Dutch jurist and a founding father of international law. Grotius advocated for a shift in maritime norms that would make the high seas free for transport and shipping, regardless of the country of origin of the ship. This would represent not only a change in law, but also a fundamental shift in the perception of the maritime realm as something not to be owned, as land is, but rather as a shared resource. Behind this concept is a liberal view of sovereign equality, in which all states have equal access to the high seas, and a view of an interdependent world connected by the sea.
As the dominant naval powers of Spain and Portugal weakened, and international trade increased, Grotius’ mare liberum concept would come to be the accepted custom governing sovereignty at sea.
From concept to custom to law
Freedom of navigation came to be embodied in bilateral treaties to become part of what would today be called international law. The earliest example of such a treaty is one concluded between King Henry IV of France and the Ottoman Porte in 1609, followed in 1612 by one between the Porte and the Dutch Republic. Once the Eighty Years' War between Spain and the Dutch Republic had ended during which Spain defended their claim of sovereignty over the oceans against the Dutch claim of "freedom of the high seas," as developed in Hugo Grotius' Mare Liberum, the two concluded a treaty of commerce in which "free ship, free goods" was enshrined. The Dutch Republic subsequently concluded bilateral treaties with most other European countries, containing the "free ship, free goods" principle, sometimes resorting to the use of force to obtain that concession, as against England in the Treaty of Breda and again in the Treaty of Westminster. England, however, also held fast to the consolato rule in relations with other countries, as did France, until in 1744 it relented and extended the privilege to the neutral Dutch.The Dutch eventually established a web of bilateral treaties that extended the privilege of "freedom of navigation" to their ships through much of Europe. During the many 18th-century European wars they remained neutral, serving all belligerents with their shipping services. Great Britain, in particular, chafed under the arrangement, as it was the dominant naval power in the 18th century, and the Dutch privilege undermined the effectiveness of its naval blockades. Matters came to a head during the American Revolutionary War, when the Dutch, shielded by the 1674 Anglo-Dutch treaty, supplied both the Americans and the French. The British made extensive use of their "right of search" of Dutch ships, which led to the affair of Fielding and Bylandt in which a Royal Navy squadron detained a Dutch merchant convoy.
Soon afterward, the North ministry abrogated the 1674 treaty, which might have meant the end of the "free ship, free goods" doctrine, but Empress Catherine II of Russia had taken up the torch around the same time. In March 1780, she published a manifesto in which she claimed the "free ship, free goods" principle, as a fundamental right of neutral states. To defend that principle, she formed the First League of Armed Neutrality to which the Dutch adhered at the end of the year. The principles from her manifesto were soon adhered to by the members of the League and by France, Spain and the new American Republic also.
Nevertheless, as a principle of international law "free ship, free goods" was soon again overturned by the practice of both sides in the French Revolutionary Wars of the turn of the 19th century. For instance, in the jurisprudence of the American courts of the early 19th-century, the consolato principle was universally applied in cases not covered by treaties. On the other hand, the US government made it a steadfast practice to enshrine the "free ship, free goods" principle in the treaties of amity and commerce it concluded with other countries.
In other words, the American view was that at that time consolato was customary international law, which, however, could be superseded by treaty law on a bilateral basis. The US, however, earnestly strove for the substitution of consolato by "free ship" in customary law also.
That state of affairs came about when Britain finally gave up its resistance to the principles, first formulated by Empress Catherine in 1780, and acquiesced in the 1856 Paris Declaration Respecting Maritime Law, which enshrined "free ship makes free goods" and rejecting "enemy ship makes enemy goods." The Declaration was signed by the major powers and it was soon adhered to by most other powers. The new rule became that a "neutral flag covers enemy's goods ; neutral goods are not liable to seizure under the enemy's flag."
While the concept as a whole became accepted international custom and law, the practice and implementation of freedom of navigation would during these years be developed through local jurisprudence and political decision-making. While local jurisprudence differed, usually a consensus view emerged over time. A key example is the issue of territorial waters. While there was agreement that a certain expanse of the seas from a state's shorelines would be under stricter state control than the high seas, the exact distance this control would extend from the shoreline was debated. However, over time through local governance and jurisprudence a general agreement emerged that territorial waters would extend three leagues or three miles from the shoreline. This norm- and custom-formation continued for centuries within the frame of mare liberum.
The UNCLOS and the modern understanding of freedom of navigation in international law
This culminated in 1982, when freedom of navigation became part of the broader body of laws of the sea currently embodied in the United Nations Convention on the Law of the Sea. Article 87 of this convention explicitly codifies this concept, stating “The high seas are open to all States, whether coastal or land-locked” and lists “freedom of navigation” as the first of several rights for all states on the high seas. The drafting of UNCLOS clearly was in line with Grotius’ ideas of sovereign equality and international interdependence. All states were given a voice in the drafting of the convention, and the convention only came into effect with the consent and ratification of the party states. Implementation of UNCLOS connects the party states together across the shared space of the high seas.Freedom of navigation as formulated in the UNCLOS, was a trade-off between the developed and the developing world. Where the developed world had an interest in maximizing their freedom to sail and explore the seas, the developing world wanted to protect their offshore resources and their independence. In other words, it was a conflict between understanding the seas through the principle of mare liberum that asserts the oceans to be open to all nations or mare clausum that advocates that the seas should be under the sovereignty of a state. The UNCLOS upheld freedom of navigation on the high seas but also invented different zones of sovereignty that limited the rules of foreign ships in these waters with concepts like internal waters and exclusive economic zones. Additionally, navigation rights of warships were guaranteed on the high seas with complete immunity from the jurisdiction of any state other than the flag state.
The UNCLOS introduced a number of legal concepts that allowed freedom of navigation within and outside of the maritime jurisdictions of countries. These are right of innocent passage, right of transit passage, right of archipelagic sea lanes passage and freedom of the high seas. The right of innocent passage allows ships to travel in other countries' territorial seas if it is not prejudicial to the peace, good order or security of the coastal state. However, some countries like China requires warships to attain prior authorization before they enter Chinese national waters. Transit passage refers to passage through straits used for international navigation between one part of the high seas or an EEZ and another with more relaxed criteria for passage. The passage must be continuous and expeditious transit of the strait. With archipelagic sea lanes passage archipelagic states may provide sea-lanes and air-routes passage though their waters where ships can enjoy freedom of navigation.