Freedom of navigation

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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.[1] 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.[2] 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.

History[edit]

Development as a Legal Concept[edit]

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 Catalan Consulate of the Sea (Catalan: Consolat de mar; Italian: Consolato del mare; also known in English as the Customs 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 (and other contemporary codes), "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 (later Great Britain), France, and Spain, as major naval powers.[3]

However, as time went on and maritime trade, travel, and conquest by the major European naval powers began extending beyond European waters, new ideas regarding how to govern the maritime realm began to emerge. 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.[4] Other notable supporters of this idea included John Burroughs[5] and William Welwod.[6] 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.[7] 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 (free seas), summarized as "a free ship [makes] free goods." This meant that even enemy goods, always excepting contraband, were inviolate in neutral bottoms (i.e. hulls),[1] 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.[8] 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.[9]

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.[10]

From Concept to Custom to Law[edit]

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 (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.[11]

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 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).[12]

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.[13]

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."[14]

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.[15][16] 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.[17]

The UNCLOS and the modern understanding of freedom of navigation in international law[edit]

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 (UNCLOS). 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.[18] 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.[19]

Freedom of Navigation as formulated in the UNCLOS, was a trade-off between the developed and the developing world. [20] Where the developed world had an interest in a maximum of 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 Economic Exclusive Zones (EEZ). [21] 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 costal state. However, some countries like China requires warships to attain prior authorization before they enter Chinese national waters. [22] 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 were ships can enjoy freedom of navigation. [23]

American Adherence to Freedom of Navigation[edit]

See also United States and the United Nations Convention on the Law of the Sea

As previously noted, American advocacy for freedom of navigation extends as far back as a 1778 treaty with France, enshrining freedom of navigation as a legal custom on a bilateral level. In the 20th century, Woodrow Wilson advocated for freedom of navigation, making it Point 2 of his Fourteen Points (see Freedom of the seas). The US has not ratified the 1982 UNCLOS treaty,[24] but it is a party to the preceding 1958 Convention on the High Seas. Despite its failure to formally ratify UNCLOS, the US now considers UNCLOS to be part of customary international law, and has committed to adhering to and enforcing the law.[25]

Freedom of Navigation Operations (FONOPs)[edit]

FONOPs are closely linked to the concept of freedom of navigation, and in particular to the enforcement of relevant international law and customs regarding freedom of navigation.[26] The drafting of UNCLOS was driven in part by states’ concerns that strong national maritime interests could lead to excessive maritime claims over coastal seas, which could threaten freedom of navigation.[27] FONOPs are a method of enforcing UNCLOS and avoiding these negative outcomes by reinforcing freedom of navigation through practice, using ships to sail through all areas of the sea permitted under UNCLOS, and in particular those areas that states have attempted to close off to free navigation as defined under UNCLOS and international law and custom.[28]

FONOPs are a modern operational reinforcement of a norm that has been strengthening for nearly four hundred years. Freedom of navigation has been thoroughly practiced and refined, and ultimately codified and accepted as international law under UNCLOS, in a legal process that was inclusive and consent-based.[27] FONOPs are outgrowths of this development of international law, based on sovereign equality and international interdependence.

United States Freedom of Navigation Program[edit]

The US Department of Defense defines FONOPs as “operational challenges against excessive maritime claims” through which “the United States demonstrates its resistance to excessive maritime claims.”[29] The United States has an institutionalized FONOPs program called the Freedom of Navigation Program, which undertakes many FONOPs around the world every year. The program publishes annual reports chronicling each year's FONOPs,[30] and a listing of relevant foreign maritime claims.[31]

The United States Freedom of Navigation (FON) program challenges what the U.S. considers to be excessive 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.[32][33] 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.[34]

The American position is somewhat complicated by the fact that the U.S. is not a party to UNCLOS.[35]

U.S. armed forces have conducted FONOPs 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;[36] as well as in strategically important straits (such as Gibraltar, Hormuz, and Malacca).[37]

One of the notable operations conducted as innocent passage and part of Freedom of Navigation program[38] 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.

Freedom of Navigation and Warships[edit]

A particular characteristic of many FONOPs, and in particular American FONOPs, is that they are undertaken by vessels of a national navy. This brings to the fore a hot debate over whether freedom of navigation extends to military vessels.[39] Most notably, Chinese legal scholars and government policymakers argue that the right of freedom of navigation given to civilian vessels in foreign waters does not apply to military vessels.[40][41] Because of this, some countries including China requires warships to attain prior authorization before they enter Chinese national waters. [42] Given such understandings of freedom of navigation, US and other country's FONOPs undertaken with military vessels could be viewed as provocative or even bellicose.[43] Other scholars have pointed out that the UNCLOS does not specifically mention freedom of navigation for warships outside of the high seas but that it has been practice between states to accept military activities at least within the EEZ. [44]

Innocent Passage vs. FONOPs[edit]

The concept of innocent passage in international law and under UNCLOS refers as noted earlier to the right of a vessel to pass through the territorial waters of a foreign state under certain conditions. While related to FONOPs in that both innocent passages and FONOPs involve vessels traversing seas claimed by a foreign state, they differ in that if a vessel claims it is traversing under innocent passage terms, it implies a concession that the vessel is in fact traveling through territorial waters of another state.[45][46] Both innocent passage and FONOPs challenge a state's imposed limitations on freedom of navigation in a maritime area, but innocent passage accepts that the area is within a state's waters, while a FONOP can be used to challenge a state's territorial claim to an area.[47]

Criticism[edit]

There are many critics of FONOPs, with a wide breadth of criticisms regarding the efficacy, bellicosity, and legality of FONOPs. One group of critics argues that FONOPs are unnecessarily risky and lead to escalation.[48] Chinese government responses to American FONOPs in the South China Sea fall under this category of criticism.[49][50] A second group of critics argue that FONOPs are unnecessary, and that states should focus on the protection of their own ships rather than using ship operations to check other states' maritime claims.[51] Still other critics argue that FONOPs are ineffective at their goal of limiting other states' maritime claims.[52][53][54][55]

FONOPs in the South China Sea[edit]

Chinese territorial claims (red line), 2010s[56]

China's claims to large areas of the South China Sea are not recognized by the international community. According to BBC correspondants, the Spratly Islands in the South China Sea could potentially be a major geopolitical flashpoint. China has used land reclamation to expand disputed islands, and has built runways on them.[57]

U.S. FONOPS in the South China Sea[edit]

In 2013 and 2014, the US conducted FONOPs in areas claimed by China, Taiwan, Malaysia, the Philippines, and Vietnam.[57] During the presidency of the Obama administration there was an increase in attention on China and Asia in general leading to the pivot to Asia from 2012. This also was reflected in an increased number of FONOPs in the South China Sea. In 2015 the Obama administration authorized two FONOPs and three FONOPs were authorized in 2016. [58] Two of the FONOPs that got most media coverage was the missions conducted by the USS Lasson in 2015 and USS Wilbur Curtis in 2016.

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 and Paracel archipelagos to underscore the U.S.'s position that the artificial islands constructed by China are located in international waters.[59][60] 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.[61][62][63] 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.[60][64]

In spring 2017, the Trump administration stopped FONOPs in the South China Sea hoping China might increase its pressure on North Korea that is launching missile tests.[65] In summer 2017, it restarted FONOPs.[66] After restarting the FONOPs in the South China Sea the Trump administration has increased the number of FONOPs authorized. Trump authorized six FONOPs in 2017 and five operations in 2018. [67] 2019 saw a record high number of U.S FONOPs in South China Sea with a total of nine operations conducted. [68]

March 2018 also saw the first FONOP with the participation of two U.S warships. [69] On May 27, 2018 the US Navy Arleigh Burke-class destroyer and a Ticonderoga-class cruiser sailed within 12 nautical miles of the Paracel Islands, which are controlled by China. The FONOP came shortly after the Pentagon announced that it would disinvite the Chinese navy for its Rim of the Pacific (RIMPAC) exercise off Hawaii the same summer, which is a US flagship naval exercise. The FONOP was called a “serious infringement on China’s sovereignty by China’s defense ministry.

On September 30, 2018, the USS Decatur was undertaking a FONOP near the Gaven and Johnson Reefs in the Spratly Islands when a Chinese destroyer, the Lanzhou, approached to within 41 meters of the USS Decatur, in what the US Navy termed “a series of increasingly aggressive maneuvers”[70] This forced the Decatur to maneuver to avoid a collision.

In December 2018 China deployed naval forces to warn off the USS Chancellorsville while it made a FONOP around the Paracel Islands without approval of the Chinese government. “The Southern Theatre Command organized navy and air forces to monitor the US vessel, and gave warning for it to leave,” a statement by the Southern Theatre Command said in response to the U.S FONOP. [71] The Statement also called for the U.S to properly manage its navy and air fleet to avoid miscalculations.

The U.S FONOPs has continued into 2020. The U.S Navy conducted its first FONOP in 2020 on January 25 by sending the littoral combat ship Montgomery past Chinese claims in the Spratly Islands. [72] During the FONOP China sent two fighter-bombers scrambling overhead to intimate the USS Montgomery, according to Chinese state media. The January 25 patrol was officially aimed at China, Taiwan and Vietnam. Specifically, the Navy challenged the notion that innocent passage through claimed territorial waters requires previous notification.

In April 28, 2020 the Japan-based guided-missile destroyer USS Barry conducted a freedom of navigation operation in the vicinity of Paracel Island chain off Vietnam. [73] The PLA's Southern Theatre Command claimed its forces forced the USS Barry out of disputed Spratly Islands waters; a US Navy spokesman denied that Barry had been ejected by the PLA and stated "all interactions that occurred were in accordance with maritime norms". [74] The operation was carried out during the Covid-19 pandemic which have seen accusation from both Beijing and Washington accusing each other of trying to take more military control over the South China Sea during the pandemic. The operation done by the USS Barry was followed up the next day on the 29 of April with a FONOP around the Spratly Islands done by USS Bunker Hill. This was the first time the U.S conducted two FONOPs within two days [75] [76]. The back-to-back missions has been seen by some has a new U.S strategy under the Pentagon slogan “strategic predictability, operation unpredictability”. After the FONOP by USS Bunker Hill a spokesperson from the U.S 7th fleet responsible for carrying out the operations said: "The United States will fly, sail, and operate wherever international law allows -- regardless of the location of excessive maritime claims and regardless of current events,"

FONOPs done by non U.S actors in South China Sea[edit]

In 2015 Australia confirmed that it had been conducting "routine" FONOP flights over disputed territory in the South China Sea.[57]

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.[77]

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[78] announced that their ships would sail through the South China Sea to continue to uphold the collective right to freedom of navigation.[77] 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.[77]

The Royal Navy also conducted what is believed to be a FONOP with the HMS Albion, a 22,000-ton amphibious transport dock, in late August of 2018 in the waters near the Paracel islands. The FONOP conducted by the HMS Albion’s was a unlike many U.S FONOPs a traditional assertion of freedom of navigation on the high seas. [79] [80]. Beijing denounced the HMS Albion mission because it sailed within its territorial waters around the Paracels without seeking prior approval. A spokesperson from the Royal Navy said that “HMS Albion exercised her rights for freedom of navigation in full compliance with international law and norms.”. The British FONOP has been seen by commentators as a signal that the Royal Navy is likely to be a regular party patrolling the South China Sea.

Chinese view of FONOPs in South China Sea[edit]

China views FONOPs in the South China Sea, and particularly those undertaken with military vessels, as provocative,[81] as they assert that freedom of navigation does not apply to military vessels within foreign EEZ’s and territorial waters.[82] China also claims that FONOPs violate Chinese law, including the “Law of the People’s Republic of China on the Territorial Sea and the Contiguous Zone” and the “Declaration of the Government of the People’s Republic of China on the Baselines of the Territorial Sea”.[83] The Chinese Navy and Coast Guard often shadow foreign vessels on FONOPs.[84]

See also[edit]

Notes[edit]

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.

References[edit]

  1. ^ Dupuy and Vignes, p. 836
  2. ^ ‌Oscar Chinn Case, 1934. Permanent Court of International Justice (ser. A/B) no.63, p.83.
  3. ^ Atherley-Jones, pp. 284–285
  4. ^ Selden, John, Nedham, Marchamont, and Howell, James. Mare Clausum: The Right and Dominion of the Sea in Two Books. Printed for Andrew Kembe and Edward Thomas, 1663.
  5. ^ Borough, John, Sir, -1643. (1720). An historical account of the royal fishery of Great Britain : or The sovereignty of the British seas proved by records, history, and the municipal laws of the kingdom : also a particular relation concerning the inestimable riches and commodities of the British seas. Printed for E. Curll in Fleet-street. OCLC 62422883.CS1 maint: multiple names: authors list (link)
  6. ^ Welwod, William. An Abridgement of All Sea-lawes : Gathered Forth of All Writtings and Monuments, Which Are to Be Found among Any People or Nation, upon the Coasts of the Great Ocean and Mediterranean Sea (Reprod.) / by William Welwod,... Printed by Humfrey Louves (London), 1613.
  7. ^ O’Connell, D.P. “The Law of the Sea.” Journal of the Royal Society of Arts 124, no. 5239 (1976): 367-79. www.jstor.org/stable/41372335.
  8. ^ Grotius, Hugo, 1583-1645. (2009). Mare liberum, 1609-2009. Brill. ISBN 9789047430452. OCLC 699521347.CS1 maint: multiple names: authors list (link)
  9. ^ Wolfrum, Rüdiger. “The Freedom of Navigation: Modern Challenges Seen from a Historical Perspective” in Castillo, Lilian del, and Caminos, Hugo, eds. 2015. Law of the Sea, from Grotius to the International Tribunal for the Law of the Sea: From Grotius to the International Tribunal for the Law of the Sea. Leiden: BRILL.
  10. ^ Scovazzi, Tullio. “The Origin of the Theory of Sovereignty of the Sea” in Castillo, Lilian del, and Caminos, Hugo, eds. 2015. Law of the Sea, from Grotius to the International Tribunal for the Law of the Sea: From Grotius to the International Tribunal for the Law of the Sea. Leiden: BRILL.
  11. ^ Atherley-Jones, pp. 286–287
  12. ^ Atherley-Jones, pp. 288–289
  13. ^ Atherley-Jones, pp. 283–284
  14. ^ Atherley-Jones, p. 298
  15. ^ Rothwell, Donald, Kaye, Stuart, Akhtarkhavari, Afshin, and Davis, Ruth. "Law of the Sea." In International Law, 501-55. Cambridge: Cambridge University Press, 2010.
  16. ^ Shaw, Malcolm N. "The Law of the Sea." In International Law, 490-571. Cambridge: Cambridge University Press, 2003.
  17. ^ Pinto, M.C.W. “Hugo Grotius and the Law of the Sea” in Castillo, Lilian del, and Caminos, Hugo, eds. 2015. Law of the Sea, from Grotius to the International Tribunal for the Law of the Sea. Leiden: BRILL.
  18. ^ UN General Assembly, Convention on the Law of the Sea, 10 December 1982.
  19. ^ Pardo, A. "The Convention on the Law of the Sea: A Preliminary Appraisal." San Diego Law Review 20, no. 3 (1983): 489-504.
  20. ^ Wirth, Christian. “Whose ‘Freedom of Navigation’? Australia, China, the United States and the Making of Order in the ‘Indo-Pacific.’” The Pacific Review 32.4 (2019): 475–504.
  21. ^ Gill, Munraj. “The Issue of Freedom of Navigation in the Asia-Pacific Region: The Rights and the Interest of Costal States and Practices.” The Journal of Defence and Security 7.1 (2016): 66–III. Web.
  22. ^ Gill, Munraj. “The Issue of Freedom of Navigation in the Asia-Pacific Region: The Rights and the Interest of Costal States and Practices.” The Journal of Defence and Security 7.1 (2016): 66–III.
  23. ^ (Freund, Eleanor & Facini, Andrew. “Freedom of navigation in the South China Sea: A practical guide”. Belfer Center for Science and International Affairs, Harvard Kennedy School. (2017)
  24. ^ Robertson, Horace B. Jr. “The 1982 United Nations Convention on the Law of the Sea: An Historical Perspective on Prospects for US Accession” in Carsten, Michael D., ed. International Law and Military Operations. Newport, R.I: Naval War College, 2008.
  25. ^ Clingan, Thomas A. "Freedom of Navigation in a Post-UNCLOS III Environment." Law and Contemporary Problems 46, no. 2 (1983): 107-23.
  26. ^ Galdorisi, G. (1996). The United States freedom of navigation program: A bridge for international compliance with the 1982 United Nations convention on the law of the sea? Ocean Development & International Law, 27(4), 399-408.
  27. ^ a b Kraska, James, and Pedrozo, Raul A. International Maritime Security Law. Leiden: Martinus Nijhoff Publishers, 2013.
  28. ^ Aceves, William Joseph. 1990. "The Freedom of Navigation Program: A Study on the Relationship between Law and Strategy." Order No. EP60087, University of Southern California. https://search.proquest.com/docview/1643255666.
  29. ^ United States Department of Defense. 2018. “Department of Defense Report to Congress Annual Freedom of Navigation Report Background.” https://policy.defense.gov/Portals/11/Documents/FY18%20DoD%20Annual%20FON%20Report%20(final).pdf?ver=2019-03-19-103517-010.
  30. ^ "Under Secretary of Defense for Policy > OUSDP Offices > FON". policy.defense.gov. Archived from the original on May 31, 2019. Retrieved May 31, 2019.
  31. ^ "Maritime Claims Reference Manual | U.S. Navy JAG Corps". www.jag.navy.mil. Archived from the original on May 31, 2019. Retrieved May 31, 2019.
  32. ^ "President's Statement on Advancing U.S. Interests in the World's Oceans". Archived from the original on August 14, 2011. Retrieved August 28, 2017.
  33. ^ Joint Statement of the U.S.-ASEAN Special Leaders’ Summit: Sunnylands Declaration Archived January 18, 2017, at the Wayback Machine, 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) ...
  34. ^ Maritime Security and Navigation, United States Department of State (accessed October 3, 2016).
  35. ^ Etzioni, Amitai (2016). "Freedom of Navigation Assertions: The United States as the World's Policeman". Armed Forces & Society. 42 (3): 501–517. doi:10.1177/0095327X15599635.
  36. ^ James Gerstrenzang, U.S. Navy Ends Maneuvers in Gulf of Sidra Archived October 5, 2016, at the Wayback Machine, Los Angeles times (March 28, 1986).
  37. ^ Nilufer Oral, Transit Passage Rights in the Strait of Hormuz and Iran's Threats to Block the Passage of Oil Tankers Archived October 5, 2016, at the Wayback Machine, Insights, Vol. 16, American Society of International Law (May 3, 2012).
  38. ^ 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.
  39. ^ Colin, Sébastian. "China, the US, and the Law of the Sea." China Perspectives no. 2 (2016): 57-62.
  40. ^ Jing Geng. "The Legality of Foreign Military Activities in the Exclusive Economic Zone under UNCLOS." Utrecht Journal of International and European Law 28, no. 74 (2012): 22-30.
  41. ^ Hsiao, Anne Hsiu-An. "China and the South China Sea "Lawfare"." Issues and Studies 52, no. 2 (06, 2016): 1-42.
  42. ^ Gill, Munraj. “The Issue of Freedom of Navigation in the Asia-Pacific Region: The Rights and the Interest of Costal States and Practices.” The Journal of Defence and Security 7.1 (2016): 66–III.
  43. ^ "China's Atypical Response To US Navy FONOPS May Be a Message to Trump Administration". USNI News. October 3, 2018. Archived from the original on May 31, 2019. Retrieved May 31, 2019.
  44. ^ Houck, James W. & Anderson, Nicole M. “The United States, China, and Freedom of Navigation in the South China Sea. (The Legal Challenges of Globalization: A View from the Heartland).” Washington University Global Studies Law Review 13.3 (2014): n. page.
  45. ^ Diplomat, Joseph A. Bosco, The. "Are Freedom of Navigation Operations and Innocent Passage Really the Same?". The Diplomat. Archived from the original on May 31, 2019. Retrieved May 31, 2019.
  46. ^ Rothwell, Donald R.; Bateman, W. S. Walter Samuel Grono (2000-11-14). Navigational Rights and Freedoms, and the New Law of the Sea. Martinus Nijhoff Publishers. ISBN 9041114998.
  47. ^ Diplomat, Jonathan G. Odom, The. "FONOPs to Preserve the Right of Innocent Passage?". The Diplomat. Archived from the original on May 31, 2019. Retrieved May 31, 2019.
  48. ^ Valencia, Mark J. "South China Sea: Some Recent Analyses Lack Balance". National Institute for South China Sea Studies. Archived from the original on May 31, 2019. Retrieved May 31, 2019.
  49. ^ Swaine, Michael D. 2010. “China’s Assertive Behavior—Part One: On ‘Core Interests.’” Carnegie Endowment for International Peace. November 15, 2010. https://carnegieendowment.org/2010/11/15/china-s-assertive-behavior-part-one-on-core-interests-pub-41937.
  50. ^ Press, Christopher Bodeen, The Associated (January 7, 2019). "After latest FONOP, China fires 'stern complaints' at US". Navy Times. Retrieved May 31, 2019.
  51. ^ Hawkins, William R. "Strategy and "Freedom of Navigation"." The National Interest, no. 12 (1988): 48-56.
  52. ^ Poling, Zack Cooper, Gregory. "America's Freedom of Navigation Operations Are Lost at Sea". Foreign Policy. Archived from the original on May 31, 2019. Retrieved May 31, 2019.
  53. ^ Holmes, James (February 23, 2019). "Are Freedom of Navigation Operations in East Asia Enough?". The National Interest. Archived from the original on May 31, 2019. Retrieved May 31, 2019.
  54. ^ Diplomat, Mark J. Valencia, The. "US FONOPs in the South China Sea: Intent, Effectiveness, and Necessity". The Diplomat. Archived from the original on May 31, 2019. Retrieved May 31, 2019.
  55. ^ "We've Seen This Movie Before: The Latest U.S. "Innocent Passage" Freedom of Navigation Operation in the South China Sea". Lawfare. May 11, 2016. Archived from the original on May 31, 2019. Retrieved May 31, 2019.
  56. ^ http://news.bbcimg.co.uk/media/images/48951000/gif/_48951920_south_china-sea_1_466.gif
  57. ^ a b c "Australia in South China Sea flights". BBC News. December 15, 2015. Retrieved May 30, 2020.
  58. ^ Larter, David B. “In challenging China’s claims in the South China Sea, the US navy is getting more assertive”. Defense News. (2020): https://www.defensenews.com/naval/2020/02/05/in-challenging-chinas-claims-in-the-south-china-sea-the-us-navy-is-getting-more-assertive/
  59. ^ Michael Green, Bonnie Glaser & Gregory Poling, The U.S. Asserts Freedom of Navigation in the South China Sea Archived October 5, 2016, at the Wayback Machine, Asia Maritime Transparency Initiative/Center for Strategic and International Studies (October 27, 2015).
  60. ^ a b "US Navy carries out third FONOP in South China Sea". The Interpreter. Lowy Institute for International Policy. May 10, 2016. Archived from the original on May 11, 2016. Retrieved May 11, 2016.
  61. ^ Andrea Shalal & David Brunnstrom, U.S. Navy destroyer nears islands built by China in South China Sea Archived July 3, 2017, at the Wayback Machine, Reuters (October 26, 2015).
  62. ^ Angry China shadows U.S. warship near man-made islands Archived May 29, 2017, at the Wayback Machine, (October 28, 2015).
  63. ^ China says US warship's Spratly islands passage 'illegal' Archived February 19, 2019, at the Wayback Machine, BBC News (October 27, 2015).
  64. ^ Nick Bisley, We should think carefully about an Australian FONOP in the South China Sea Archived October 5, 2016, at the Wayback Machine, The Interpreter, Lowy Institute for International Policy (February 4, 2016).
  65. ^ FAZ.net
  66. ^ 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 Archived August 12, 2017, at the Wayback Machine
  67. ^ Larter, David B. “In challenging China’s claims in the South China Sea, the US navy is getting more assertive”. Defense News. (2020): https://www.defensenews.com/naval/2020/02/05/in-challenging-chinas-claims-in-the-south-china-sea-the-us-navy-is-getting-more-assertive/
  68. ^ Power, John. “US freedom of navigation patrols in the South China Sea hit record high in 2019”. South China Morning Post. (2020): https://www.scmp.com/week-asia/politics/article/3048967/us-freedom-navigation-patrols-south-china-sea-hit-record-high
  69. ^ Naval Today. “US warships sail near Chinese-claimed Paracel Islands in South China Sea”. (2018): https://navaltoday.com/2018/05/28/us-warships-sail-near-chinese-claimed-paracel-islands-in-south-china-sea/
  70. ^ "Destroyer USS Decatur Has Close Encounter With Chinese Warship". USNI News. October 1, 2018. Archived from the original on May 31, 2019. Retrieved May 31, 2019.
  71. ^ Ng, Teddy. “Chinese navy sent to confront USS Chancellorsville in latest South China Sea stand-off”. South China Morning Post. (2018): https://www.scmp.com/news/china/military/article/2175916/chinese-navy-sent-confront-uss-chancellorsville-latest-south
  72. ^ Larter, David B. “In challenging China’s claims in the South China Sea, the US navy is getting more assertive”. Defense News. (2020): https://www.defensenews.com/naval/2020/02/05/in-challenging-chinas-claims-in-the-south-china-sea-the-us-navy-is-getting-more-assertive/
  73. ^ LaGrone, Sam. “China Says PLA Scrambled Aircraft, Ships to “Expel” U.S. Warships from South China Sea Island Chain“. USNI News. (2020): https://news.usni.org/2020/04/28/china-says-pla-scrambled-aircraft-ships-to-expel-u-s-warship-from-south-china-sea-island-chain
  74. ^ Zhao, Christina (April 29, 2020). "Navy sends second ship into disputed waters after China claims it scrambled jets to expel U.S. destroyer". Newsweek. Archived from the original on April 30, 2020. Retrieved April 30, 2020.
  75. ^ Lendon, Brad. “US Navy stages back-to back challenges to Beijing’s South China Sea claims. CNN. (2020): https://edition.cnn.com/2020/04/30/asia/south-china-sea-us-navy-freedom-of-navigation-intl-hnk/index.html
  76. ^ LaGrone, Sam. “USS Bunker Hill Conducts 2an South China Sea Freedom of Navigation Operation This Week”. USNI News. (2020): https://news.usni.org/2020/04/29/uss-bunker-hill-conducts-2nd-south-china-sea-freedom-of-navigation-operation-this-week
  77. ^ a b c Choong, William. "South China Sea: bringing power to bear". IISS. IISS. Archived from the original on June 25, 2018. Retrieved June 5, 2018.
  78. ^ "France, UK announce South China Sea freedom of navigation operations". NavalToday. NavalToday. June 6, 2018. Archived from the original on June 25, 2018. Retrieved June 25, 2018.
  79. ^ Luc, Tuan Anh. “Are France and the UK Here to Stay in the South China Sea?”. The Diplomat. (2018): https://thediplomat.com/2018/09/are-france-and-the-uk-here-to-stay-in-the-south-china-sea/
  80. ^ Hemmings, John. “Charting Britain’s Moves in the South China Sea”. RUSI.org. (2019): https://rusi.org/commentary/charting-britain’s-moves-south-china-sea
  81. ^ Keyuan, Zou. "Navigation in the South China Sea:Why Still an Issue?" The International Journal of Marine and Coastal Law 32, no. 2 (2017): 243-67.
  82. ^ "China’s Territorial and Maritime Disputes in the South and East China Seas:: What Role for International Law?" In China's Global Engagement: Cooperation, Competition, and Influence in the 21st Century, 235. Washington, D.C.: Brookings Institution Press, 2017.
  83. ^ "How China Can Resolve the FONOP Deadlock in the South China Sea". Asia Maritime Transparency Initiative. March 1, 2019. Archived from the original on April 2, 2019. Retrieved May 31, 2019.
  84. ^ "Chinese navy confronts US warship in South China Sea". South China Morning Post. December 1, 2018. Archived from the original on May 31, 2019. Retrieved May 31, 2019.

Sources[edit]

  • Atherley-Jones, L.A., Bellot, H.H.L. (1907) Commerce in War. Methuen & co.[2]
  • 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]