Freedom of navigation

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Freedom of navigation (FON), is a principle of customary international law that, apart from the exceptions provided for in international law, ships flying the flag of any sovereign state shall not suffer interference from other states.[1] This right is now also codified as article 87(1)a of the 1982 United Nations Convention on the Law of the Sea. However, not all UN member states have ratified the convention; notably, the United States has signed, but not ratified the convention.

History[edit]

Until the early modern period, international maritime law was governed by customs that were sometimes codified: as for example in the 14th-century Catalan Consulate of the Sea (Catalan: Consolat de mar; Italian: Consolato del mare; also known in English as the Customs of the Sea). Such customs governed cases in prize courts about the capture of goods on the high seas by privateers. This rule can be distilled from the Consolato (and other contemporary codes): "enemy goods can be captured on neutral ships and neutral goods are free on board enemy's ships." The first part of the rule implies that neutral shipping is not inviolable in time of war, but the second part implies that goods of neutral owners are. The former contradicts what is now called "freedom of navigation." The doctrine, which will be referred to as the consolato rule for short, was long observed by England (later Great Britain), France, and Spain, as major naval powers.[2]

However, beginning in the 17th century, the Dutch Republic, the dominant European carrier, championed a different rule, known as "a free ship [makes] free goods." This meant that even enemy goods, always excepting contraband, were inviolate in neutral bottoms,[3] but sometimes the corollary of the rule was that neutral goods carried by enemy ships could be confiscated. The first part of the rule, however, makes neutral ships inviolable and so is the core of the freedom-of-navigation doctrine.

As the doctrine went against international custom, it had to be embodied in bilateral treaties to become part of international law. The earliest example of such a treaty is actually one concluded between king Henry IV of France and the Ottoman Porte in 1609, but that was 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, but it sometimes had to use force to obtain that concession, as against England in the Treaty of Breda (1667) and again in the Treaty of Westminster (1674). England, however, also held fast to the consolato rule in relations with other countries, as did France, until it country in 1744 relented and extended the privilege to the neutral Dutch.[4]

The Dutch had so, by using treaty law, built up a web of bilateral treaties that on a reciprocal basis extended the privilege of "freedom of navigation" to their ships in the many 18th-century European wars in which 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 War of the American Revolution, 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 by which a British naval squadron, in peacetime, arrested a Dutch convoy despite the objections of its Dutch naval escort.

Soon afterward, the British abrogated the 1674 treaty, which might have meant the death 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 (among other things) 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 (which sparked the Fourth Anglo-Dutch War). 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 (even if, as belligerents, they could not become members of the League).[5]

Nevertheless, as a principle of international law (apart from treaty 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 (starting with the 1778 one with France and the 1782 one with the Dutch Republic).

In other words, the American view (following the British practice) 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.[6]

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 (except the US, ironically) and it was soon adhered to by most other powers. The new rule (a combination of the "best" parts of Consolato and "free ship") became that a "neutral flag covers enemy's goods (except contraband); neutral goods are not liable to seizure under the enemy's flag."[7]

In the 20th century, the new principle became part of the broader body of laws of the sea currently embodied in the United Nations Convention on the Law of the Sea, as Woodrow Wilson advocated in Point 2 of his Fourteen Points (see Freedom of the seas). The US has not ratified the 1982 treaty, but it is a party to the preceding 1958 Convention on the High Seas. As the reason for nonratification is not related to the principle of freedom of navigation, which the US now considers to be part of customary international law, it does not imply that the US does not consider itself bound by the principle.

United States "Freedom of Navigation" program[edit]

The United States Freedom of Navigation program challenges territorial claims on the world's oceans and airspace using diplomatic protests and/or by challenge. The country's position is to insist that all nations must obey the international law of the sea, as stated by the UN Law of the Sea Convention.[8]

On several occasions, US armed forces have conducted operations in areas claimed by other countries but are international waters, such as naval operations in the Gulf of Sidra in the 1980s. Throughout the years, US forces have been performing "Freedom of Navigation" operations in the Straits of Gibraltar, Strait of Hormuz, Straits of Malacca, and the Indonesian Archipelago, the Black Sea under the name 'Silver Fox',.[9]

One of the notable operations conducted as part of Freedom of Navigation program[10] was performed by USS Yorktown, during which, on February 12, 1988 she was "nudged" by Soviet frigate Bezzavetny in an attempt to divert the vessel out of Soviet-claimed territorial waters; some observers[who?] have called the event "the last incident of the Cold War before the Soviet Union collapsed."[citation needed]

In 2014, China Youth Daily called the American program an infringement of China's "rights" to "reclaim" the South China Sea and East China Sea, two large bodies of waters that are considered international waters.[11]

From October 2015, the US has been conducing FON Operations (FONOP) approximately every three months near the artificial islands China has created in the disputed Spratly archipelago.[12] Destroyers USS Lassen, USS Wilbur Curtis, and USS William P. Lawrence have each sailed within 12 nautical miles of reclaimed-land islands in the Great Wall of Sand to reiterate the US's claim that China is building islands in are international waters.[13]

See also[edit]

References[edit]

  1. ^ Dupuy and Vignes, p. 836
  2. ^ Atherley-Jones, pp. 284–285
  3. ^ The exception of contraband implies that the inviolability of neutral ships was never absolute, as the principle still admitted the right of visit and Search by belligerents.
  4. ^ Atherley-Jones, pp. 286–287
  5. ^ Atherley-Jones, pp. 288–289
  6. ^ Atherley-Jones, pp. 283–284
  7. ^ Atherley-Jones, p. 298
  8. ^ President's Statement on Advancing U.S. Interests in the World's Oceans
  9. ^ http://download.cabledrum.net/wikileaks_archive/oc/2474/557.pdf
  10. ^ Campbell, "USS Caron’s Black Sea Scrape Furthered International Law, National Interest", THE VIRGINIAS-PILOT AND THE LEDGER STAR", June 12, 1988, at C3, col. 1.
  11. ^ "US program challenges Beijing's South China Sea claims". www.wantchinatimes.com. WantChinaTimes.com. 11 February 2014. Retrieved 11 February 2014. 
  12. ^ "China furious after US Navy destroyer passes disputed islands in S. China Sea". www.rt.com. RT.com. 27 October 2015. Retrieved 30 October 2015. 
  13. ^ "US Navy carries out third FONOP in South China Sea". The Interpreter. owy Institute for International Policy. 10 May 2016. Retrieved 11 May 2016. 

Sources[edit]

  • Atherley-Jones, L.A., Bellot, H.H.L. (1907) Commerce in War. Methuen & co.[1]
  • Dupuy, R.J., Vignes, D. (1991) A handbook on the new law of the sea. Martinus Nijhoff Publishers, ISBN 0-7923-1063-2

External links[edit]