Freedom of navigation
Freedom of navigation (FON) is a principle of customary international law that ships flying the flag of any sovereign state shall not suffer interference from other states, apart from the exceptions provided for in international law. This right is now also codified as article 87(1)a of the 1982 United Nations Convention on the Law of the Sea. Not all UN member states have ratified the convention; notably, the United States has signed, but not ratified the convention. However, the § United States enforces the practice; see below.
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 hereafter 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.
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 (i.e. hulls), 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 in 1744 it relented and extended the privilege to the neutral Dutch.
The Dutch had also, by using treaty law, built up a web of bilateral treaties that extended the privilege of "freedom of navigation" to their ships. 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 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).
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.
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) 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."
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 (1982), 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.
The United States Freedom of Navigation (FON) program challenges territorial claims on the world's oceans and airspace. The position of the United States is that all nations must obey the international law of the sea, as codified in the United Nations Convention on the Law of the Sea. The U.S. Department of State writes:
U.S. policy since 1983 provides that the United States will exercise and assert its navigation and overflight rights and freedoms on a worldwide basis in a manner that is consistent with the balance of interests reflected in the Law of the Sea (LOS) Convention. The United States will not, however, acquiesce in unilateral acts of other states designed to restrict the rights and freedoms of the international community in navigation and overflight and other related high seas uses. The FON Program since 1979 has highlighted the navigation provisions of the LOS Convention to further the recognition of the vital national need to protect maritime rights throughout the world. The FON Program operates on a triple track, involving not only diplomatic representations and operational assertions by U.S. military units, but also bilateral and multilateral consultations with other governments in an effort to promote maritime stability and consistency with international law, stressing the need for and obligation of all States to adhere to the customary international law rules and practices reflected in the LOS Convention.
The American position is somewhat complicated by the fact that the U.S. is not a party to UNCLOS.
U.S. armed forces have conducted FON operations in areas claimed by other countries but considered by the U.S. to be international waters, such as naval operations in the Gulf of Sidra in the 1980s; as well as in strategically important straits (such as Gibraltar, Hormuz, and Malacca).
One of the notable operations conducted as innocent passage and part of Freedom of Navigation program was performed by USS Yorktown, during which, on February 12, 1988 she was "nudged" by Soviet frigate Bezzavetnyy in an attempt to divert the vessel out of Soviet territorial waters.
South China Sea
Beginning in October 2015, as part of the U.S. FON Operations (FONOP) program, U.S. Navy ships have patrolled near the artificial islands China has created in the disputed Spratly archipelago to underscore the U.S.'s position that the artificial islands constructed by China are located in international waters. The guided-missile destroyer USS Lassen sailed within 12 nautical miles of reclaimed-land islands (the so-called "Great Wall of Sand") in October 2015. Two other U.S. ships have followed: the USS Wilbur Curtis sailed within 12 nautical miles of Triton Island in the Paracel Islands in January 2016, and the USS William P. Lawrence came within 12 nautical miles of Fiery Cross Reef in the Spratly Islands in May 2016.
In spring 2017, the Trump administration stopped FON in the South China Sea hoping China might increase its pressure on North Korea that is launching missile tests. In summer 2017, it restarted FON Operations.
In May 2017, Japan sent its Izumo helicopter carrier and two destroyers, the Inazuma and the Suzutsuki on a three-month tour of the South China Sea,where they conducted exercises with the Kuroshio. This was Japan’s biggest foray into the region since the Second World War.
In April 2018, three Australian naval vessels transited the South China Sea towards Vietnam and, along the way, met a ‘robust’ challenge from the Chinese navy.
At the June 2018 Shangri-La Dialogue, ministers from France and the UK jointly announced that their ships would sail through the South China Sea to continue to uphold the collective right to freedom of navigation. The announcement came after the UK and France announced separately in July 2017 and May 2018 respectively that they would increase their involvement in the South China Sea.
- Innocent passage
- Code for Unplanned Encounters at Sea
- Danube River Conference of 1948
- FONOPs during the Obama Administration
- Freedoms of the air
- 1.^ 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.
- Dupuy and Vignes, p. 836
- Atherley-Jones, pp. 284–285
- Atherley-Jones, pp. 286–287
- Atherley-Jones, pp. 288–289
- Atherley-Jones, pp. 283–284
- Atherley-Jones, p. 298
- President's Statement on Advancing U.S. Interests in the World's Oceans
- Joint Statement of the U.S.-ASEAN Special Leaders’ Summit: Sunnylands Declaration, White House Office of the Press Secretary (February 16, 2016): "Shared commitment to ...ensuring maritime security and safety, including the rights of freedom of navigation and overflight and other lawful uses of the seas, and unimpeded lawful maritime commerce as described in the 1982 UN Convention on the Law of the Sea (UNCLOS) ...
- Maritime Security and Navigation, United States Department of State (accessed October 3, 2016).
- Etzioni, Amitai (2016). ""Freedom of Navigation Assertions: The United States as the World's Policeman". Armed Forces & Society. 42 (3): 501–517.
- James Gerstrenzang, U.S. Navy Ends Maneuvers in Gulf of Sidra, Los Angeles times (March 28, 1986).
- Nilufer Oral, Transit Passage Rights in the Strait of Hormuz and Iran's Threats to Block the Passage of Oil Tankers, Insights, Vol. 16, American Society of International Law (May 3, 2012).
- 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.
- Michael Green, Bonnie Glaser & Gregory Poling, The U.S. Asserts Freedom of Navigation in the South China Sea, Asia Maritime Transparency Initiative/Center for Strategic and International Studies (October 27, 2015).
- "US Navy carries out third FONOP in South China Sea". The Interpreter. Lowy Institute for International Policy. May 10, 2016.
- Andrea Shalal & David Brunnstrom, U.S. Navy destroyer nears islands built by China in South China Sea, Reuters (October 26, 2015).
- Angry China shadows U.S. warship near man-made islands, (October 28, 2015).
- China says US warship's Spratly islands passage 'illegal', BBC News (October 27, 2015).
- Nick Bisley, We should think carefully about an Australian FONOP in the South China Sea, The Interpreter, Lowy Institute for International Policy (February 4, 2016).
- washingtonpost.com / AP 10 August 2017: Navy official says US warship has carried out freedom of navigation operation near China-held island in South China Sea
- Choong, William. "South China Sea: bringing power to bear". IISS. IISS. Retrieved 5 June 2018.
- "France, UK announce South China Sea freedom of navigation operations". NavalToday. NavalToday. June 6, 2018.
- Atherley-Jones, L.A., Bellot, H.H.L. (1907) Commerce in War. Methuen & co.
- Dupuy, R.J., Vignes, D. (1991) A handbook on the new law of the sea. Martinus Nijhoff Publishers, ISBN 0-7923-1063-2