Topic: Explain and critically evaluate the concept of “freedom of navigation”

Prepared by: Nadir Gürpınar

Table of Content:

1. INTRODUCTION...........................................................................................................4

2. HISTORICAL ORIGIN OF THE FREEDOM OF NAVIGATION................................4

3. THE CONCEPT OF FREEDOM OF NAVIGATION.....................................................4

4. THE COASTAL STATE JURISDICTION....................................................................5

4.1. Internal Waters...........................................................................................................5

4.2. Territorial Seas...........................................................................................................6

4.3. Contiguous Zone........................................................................................................6

5. NAVIGATION IN TERRITORIAL SEA......................................................................6

5.1. Innocent Passage.....................................................................................................6

5.2. Straits.......................................................................................................................7

5.3. Transit Passage........................................................................................................7

6. THE HIGH SEAS...........................................................................................................7

7. INTERNATIONAL MARITIME EVENTS..................................................................8

7.1. The Corfu Channel Case........................................................................................8

7.2. Critical Approach on Incidents.............................................................................8

8. CONCLUSION..................................................................................................................9

9. BIBLIOGRAPHY.............................................................................................................10

1. INTRODUCTION:

This work will examine the concept of freedom of navigation in the territorial sea and in the high seas. The ideas supported with the United Nations Convention on the Law of the Sea (UNCLOS) articles which explain the concepts effectively. The importance of coastal jurisdiction will be explained, there are three different stages which are internal waters, territorial sea and contiguous zone. Also the concepts of innocent passage, straits and the transit passage have a major importance and explain navigation in territorial seas. The critical approach will effectively prove the importance of maritime events in policy making with specific examples such as Erica.

2. HISTORICAL ORIGIN OF THE FREEDOM OF NAVIGATION

Freedom of navigation, as a concept first appeared when the maritime powers laid claim to the sovereignty of the seas. It may be seen in the numerous treaties which approve the idea of innocent navigation on the territorial waters. The treaty of London of 18-24 August 1604 between Spain and England formed one example of them (Dupuy, R.J. & Vignes, D. 1991).

Arguably, this idea composed the form of negative rule; the reason of this explained that the sovereign power of a state does not extend beyond a limited area of the sea. The most famous example of this situation was expressed by the 1927 judgement concerning the case of the steamship Lotus (France v Turkey). The court held that “the principle of the freedom of the seas.... was nothing other than that of the absence of any territorial sovereignty upon the high seas” (Dupuy, R.J. & Vignes, D. 1991).

In the 20th century the rule of free ship makes free goods which rejects the argument that enemy ships makes enemy goods (in Paris declaration respecting Maritime Law, 1856) become a part of the law of the sea. It is also part in the United Nation Convention on the Law of the sea (1982). (Wendel, P., 2007).

3. THE CONCEPT OF FREEDOM OF NAVIGATION

There is no freedom above the law. Thinking about the definition of freedom, it expresses the choices, decisions and ideas of individuals which they are able to make within the context of an established legal order. Freedom of navigation is, according to UNCLOS 1982, Art 87 (1)(b): “... freedom of the high seas is exercised under the conditions laid down by this convention and by other rules of international law. It comprises, inter alia, both for coastal and land-lock states: (a) freedom of navigation” (U.N., 2009).

Although freedom of navigation explained with positive wording, it is obvious that the freedom is limited by obligations provided by international law. Also, in Art 90 of UNCLOS 1982, “Every State, whether coastal or land-locked, has the right to sail ships flying its flag on the high seas” (U.N., 2009) which defines the right to navigation as the right of every state. This article underlines the link between the freedom of navigation and the right to fly a flag and stated that “every state”. The question rise with this statement that which state has right to sail ships flying its flag on the high seas coastal or land-locked (Blanco, B.A., 2007).

UNCLOS 1982, Art. 92 (2) created another issue about the freedom of navigation. A “ship which sails under the flags of two or more States, using them according to convenience” (U.N., 2009) is treated in the same way as a ship without nationality. On 2 March 1948 the vessel Asya was arrested on the high seas by a British warship. At that time, they flew the Turkish flag without having the appropriate papers; afterwards they flew the Zionist flag (the flag of a state not in existence at that time). According to the Privy Council Asya could not claim any protection of any state nor could any state claim that any principle of international law was broken by her seizure. These ideas are confirmed by the UNCLOS 1982, Art.92 (Dupuy, R.J. & Vignes, D. 1991).

4. THE COASTAL STATE JURISDICTION
A coastal state enjoys sovereignty within its territorial sea, this sovereignty is contained in a different number of ways. Because of this, it is important to consider jurisdiction with internal waters, territorial sea and contiguous zone.

4.1. Internal Waters

Internal waters best explained in the UNCLOS 1982, Art.8 (1): “waters on the landward side of the baseline of the territorial sea form part of the internal waters of the State” (U.N., 2009).

A coastal state is free to prohibit or impose conditions upon entry into internal waters containing ports. Many international conventions have statements which require states to prevent unseaworthy vessels from entering ports as a matter of international law (Evans, M.D. ed., 2006 p.630).

The territorial scope of the port state jurisdiction is limited to internal waters. An international element of port state jurisdiction comes together with flag state jurisdiction in order to prohibit and correct deficiencies on board. The changes in port state jurisdiction have caused changes in the flag state’s right to freedom of navigation. Traditionally this right was unregulated until the sixties. As a result obligations were imposed upon flag states and freedom of navigation has become more regulated and costly because of international safety and antipollution treaties. As in the case of coastal state jurisdiction, port state jurisdiction is not a customary law it is a treaty law and it regulated and restricted in the treaties (Evans, M.D. ed., 2006 p.630).

4.2. Territorial Seas

According to Art.3 of the UNCLOS 1982: “ Every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention” (U.N., 2009). The interests of the sovereign territory include the territorial sea; however, foreign ships are allowed innocent passage within it. Sovereignty includes the airspace over and seabed below (Wallace, R.M. & Ortega, O.M., 2009 p. 154-155).
4.3. Contiguous Zone

Under the 1958 Geneva Convention, A coastal state may claim the high seas zone which not exceeding 12 miles from the territorial sea baselines. Although the statues of the contiguous zone remain in the high seas, the coastal state control is to protect its customs, fiscal, immigration or sanitary regulation within its territorial sea.

According to the Article 33 of the UNCLOS 1982: “the contiguous zone may not extend beyond 24 nautical miles from the baselines from which the breadth of the territorial sea is measured”(Wallace, R.M. & Ortega, O.M., 2009 p.166-167).

5. NAVIGATION IN TERRITORIAL SEA

5.1. Innocent Passage

All states ships enjoy the right of innocent passage through the territorial seas of coastal states. Art.18 of the 1982 Convention which gave the detailed information upon the accepted customary international law and definition of “passage”: “passage means navigation through the territorial sea” (U.N., 2009).

According to the Article 19 (1) of the 1982 Convention innocent passage is defined in a very general way as that which “is not prejudicial to the peace, good order or security of the coastal State. Such passage shall take place in conformity with this Convention and with other rules of international law” (U.N., 2009). Innocent passage is a concept used in admiralty law which accepts the idea that vessels can pass through the territorial waters of another state with certain restrictions. The 1982 convention makes non-innocent the passage of any vessel which engages in fishing (Wallace, R.M. & Ortega, O.M., 2009 p.162).

5.2. Straits

Straits are used for international navigation between one part of the high seas and another part of the high seas, or the territorial sea of a foreign state (Wallace, R.M. & Ortega, O.M., 2009 p.165).

5.3. Transit Passage
Law of the sea which is accepted for a vessel in accordance with UNCLOS III of the freedom of navigation, allow the “Innocent passage” of all vessels including warships through the whole straight and not just the territorial sea of the coastal states.
The international trade exchange and security have the legal regime of transit passage in the most important straits (Wallace, R.M. & Ortega, O.M., 2009 p.166).

6. THE HIGH SEAS:
Articles 86 of UNCLOS 1982, explain that the high seas are all parts of the sea that are not included in the territorial sea or in the internal waters of a state. In brief “waters not included in the EEZ, the archipelagic waters of an archipelagic state, the territorial waters or internal waters of a state, constitute the high seas” (U.N., 2009).
The freedom of the high seas, which may be exercised by both coastal and non-coastal states, are the freedom of navigation, the freedom of fishing, the freedom to lay submarine cables and pipelines and the freedom of over flight.
Article 90 of UNCLOS 1982: include the right of navigation on the high seas it state that “Every state, whether coastal or land-locked, has the right to sail ships flying its flag on the high seas (Wallace, R.M. & Ortega, O.M., 2009 p.167).

7. INTERNATIONAL MARITIME EVENTS:

7.1. Corfu Channel Case: (U.K. & Albania) International Court of Justice (ICJ) Report, judgement of 25 March 1948, p.3-4
According to the ICJ web page, The Corfu Channel Case occurred on October 22nd 1946 with an incident of “two British destroyers struck mines in Albanian territorial waters in the Corfu Channel”. Two UK ships suffer damage, including loss of life.
In this case two important questions rise, first question is about responsibility, is Albania responsible for the incidents? The court answers that Albania was responsible by 11 votes against 5. The second question: is the action of U.K. in violation of international law? The court declared by 14 votes against 2 that the United Kingdom did not violate Albanian sovereignty on November 12th /13th (ICJ rep. 1949).
In this case channel statues are determined under the customary law as an international strait. The innocent passage which straits connecting one part of the high seas with another and which route is used as an international navigation. Even though the event occurred within internal waters, it is a right of innocent passage through international straits.
Art.17, 18, 19 of UNCLOS 1982, use for explaining the case in respect to the innocent passage. According to the ICJ the Corfu Channel Case concluded that “warships were entitled to exercise a right of innocent passage through straits used for international navigation and that coastal states were not entitled to suspend innocent passage within such straits for any form of ship” (ICJ rep 1949, p.4) & (Evans, M.D. ed., 2006 p.632).

7.2. Critical Approach on Incidents:

According to the IMO web page, the Exxon Valdez disaster in March 1989 was the largest crude spill up to that time, in United State waters. After that disaster U.S. constitutes its oil pollution Act of 1990 (OPA 90), making it obligatory for all tankers entering U.S. ports to have double hulls. At the same time IMO also composed 1992 “double hull” amendments which entered into force in July 1993. The Erika, which is a 25 years old single hulled tanker, caused a major spill of 15,000 tonnes of heavy fuel oil on the 12th December 1999. As a result of this disaster, a proposal was given to the MEPC to accelerate the process of removal of single hulled tankers from use in the 1992 MARPOL amendments. The prestige tanker disaster in 2002 called for further changes to the MARPOL 78/79. In a critical perspective, these three incidents prove that the maritime incidents are an important factor in shaping maritime policies. Incidents involving one flag state and affecting the people, assets or environment of another have lead to the creation of a robust international legal framework that should prevent navigation by substandard vessels.

On the security issues, piracy was one of the important international threats at sea where there is universal jurisdiction. The concept of piracy is best explained in UNCLOS 1982, Art. 101. To prevent this problem “the 24th Assembly adopted a resolution on piracy and armed robbery against ships in waters off the coast of Somalia, to bring to the attention of the United Nations Security Council (UNSC)” (IMO, 2005). The co-operation occurs between Somalia and the United Nations on piracy issues. Combating piracy is a very good example to show multi-government co-operation on the international stage. On the issue of piracy, the Japanese government changed the policy of its naval self defence force to allow its vessels to patrol the Straits of Malacca (Muttaqien, M., 2007).

8. CONCLUSION:

As a conclusion, the right of the flag state to freedom of navigation is arranged under the internationally regulated rules. Freedom of the seas is becoming less free with the introduction of more international agreements such as UNCLOS. Additionally, sovereignty of the territorial waters is being restricted by those same rules and agreements. This in turn should lead to safer navigation and a reduction from the threat of piracy.

Word Count: 1.990 (excluding titles & repeated references)

Bibliography:

1. Blanco, B. A., 2007. Freedom of Navigation: An outdated concept, [online]. Available at: http://www.iflos.org/media/8890/blanco-bazan%20lecture.pdf [Accessed 13 November 2009]

2. Dupuy, R.J., & Vignes, D. 1991. A Handbook on International Organizations [e-book] Martinus Nijhoff publishers, ISBN: 0-7923-1063-2 Available at:http://books.google.com.tr/books?id=MyPO3-yUe5AC&pg=PA1255&lpg=PA1255&dq=Dupuy,+R.J.,+Vignes,+D.+(1991)+A+handbook+on+the+new+law+of+the+sea.+Martinus+Nijhoff+Publishers,+ISBN+0792310632&source=bl&ots=y7LkGL95hp&sig=GPLQH9bXeCoUWr-0H2Cg03plq6g&hl=tr&ei=1Mj-SvaECJH34AanydjuCw&sa=X&oi=book_result&ct=result&resnum=1&ved=0CAgQ6AEwAA#v=onepage&q=&f=false [Accessed 15 November 2009]

3. Evans, M.D ed., 2006.International Law. 2nd ed. Oxford press. pg.154-178.

4. International Court of Justice, 2009. Corfu Channel case.[online] Available at: http://www.icj-cij.org/docket/index.php?p1=3&p2=3&k=cd&case=1 [Accessed 15 November 2009]

5. International Maritime Organization, 2002. Prevention of pollution by oil. [online] Available at: http://www.imo.org/environment/mainframe.asp?topic_id=231 [Accessed 10 November 2009]

6. International Maritime Organization, 2005. IMO Assembly calls for action on piracy off Somalia. [online] Available at: http://www.imo.org/newsroom/mainframe.asp?topic_id=1018&doc_id=5428 [Accessed 13 November 2009]

7. Muttaqien, M., 2007. Japan in the Global “War on Terrorism” Available at: http://journal.unair.ac.id/filerPDF/global6%20mt.pdf [Accessed 23 November 2009]

8. United Nations, 2009. United Nations Convention on the Law of the sea [online] Available at: http://www.un.org/Depts/los/convention_agreements/texts/unclos/closindx.htm [Accessed 10 November 2009]

9. Wallace,R. M. M. & Ortega, O. M., 2009. International Law. 6th ed. London: Sweet & Maxwell.

10. Wendel, P., 2007, State Responsibility for Interferences with the freedom of navigation in public International Law, [online] Available at: http://books.google.com.tr/books?id=kmHs5igGI-wC&pg=PT24&lpg=PT24&dq=20th+century+the+freedom+of+navigation&source=bl&ots=ce_MuI4oRX&sig=_vie7PIEv1FIILFMCltTp_aZzso&hl=tr&ei=oeQJS6WdEoT84AaO1ZnHCw&sa=X&oi=book_result&ct=result&resnum=3&ved=0CBMQ6AEwAg#v=onepage&q=20th%20century%20the%20freedom%20of%20navigation&f=false [Accessed 20 November 2009]