Freedom of Navigation: A Lost Legal Doctrine

The HMS Albion, a 22,000-ton amphibious British warship carrying a contingent of Royal Marines, was reported to have exercised its “freedom of navigation” rights as it passed near the Paracel Islands on August 31, 2018. This happened when Albion was on its way to Ho Chi Minh City, where it docked after a deployment in and around Japan. China condemned Britain of engaging in “provocation” and dispatched a frigate and two helicopters to challenge the British vessel. Both sides remained calm during the encounter.

The operation of Albion seems to send a responding signal to what the British Defense Minister vowed in the annual Shangri La security dialogue in June this year, backing US-led efforts to challenge China in the disputed South China Sea. Both the French and British defense ministers indicated that their navy ships will conduct “freedom of navigation” operations (FONOPs) in the region.

France and the UK are not the only two extra-regional states whose South China Sea policy is tied up to “freedom of navigation.” Australia is a staunch advocate of freedom of navigation and overflight and is supportive, but not openly involved in joint FONOPs-related activities so far. Despite the open support for the US FONOPs, Japanese Prime Minister Shinzo Abe has explicitly stated that the Japanese Maritime Self Defense Force will not be directly engaged in FONOPs. Freedom of navigation and overflight in the South China Sea has always been of significance to India, but it has not shown any intention so far for a joint FONOP called upon by the United States.

Freedom of navigation (FoN) is one of the oldest and most recognized principles in the legal regime governing ocean space. The 1982 United Nations Convention on the Law of the Sea (UNCLOS) makes ample reference to the freedom of navigation for example in many of its provisions. 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. What distinguishes the FoN in the different zones of the sea is the different influence or limitations that coastal states may exercise on the freedom of movement. Paragraph 2 of UNCLOS Article 87 provides that the freedoms on the high sea shall be excised by all states with due regard for the interest of other states in the exercise of the freedom of the high sea. The limitations to the high sea freedom of navigation apply also in the Exclusive Economic Zones (EEZ) regime.

The sovereign rights granted to coastal states in the EEZ brought about the possibility of conflicts with the community interest of navigation. Hence, UNCLOS provides for an “interlocking web of relationships” between the coastal states. Some coastal states require prior notification or permission for foreign warships when exercising innocent passage in their territorial seas. Some coastal states apply restrictions on activities of intelligence, surveillance, and reconnaissance in their EEZs. Some contend that other states cannot carry out military exercises or maneuvers in or over their EEZs without their consent.

Additional limitations in the EEZs may include or be relevant to “incompatible uses,” “priority between competing uses,” “residual rights,” “naval maneuvers,” “Coastal State’s laws and regulations,” “protection and preservation of the marine environment,” “ice-covered areas,” “pollution from vessels and sovereign immunity,” and “marine scientific research.” Some maritime powers such as the United States insist on the freedom of military activities in the EEZs out of concern that their naval and air access and mobility could be severely restricted by the global EEZ enclosure movement. The preservation of military activities in EEZs will continue to be of paramount importance to the U.S. and is a source of continuing friction with coastal states that seek to expand their authority in their EEZs.

Both China and the United States view freedom of navigation as vital to their national interests but differ in defining the proper exercise of that freedom in at least two ways. First, they disagree on whether certain types of military activities in coastal states’ EEZs fall within the scope of freedom of navigation. The categories of military activities which have proven controversial include those that will potentially impact the marine environment and those which could be categorized as marine scientific research and require prior permission from coastal states. Second, while China and the United States do not contest the existence of a right of “innocent passage” in territorial seas under UNCLOS, they differ on the specific rights of “warships.” The United States believes that warships enjoy the same right to innocent passage as commercial vessels, while China mandates in its domestic law that flag states of warships exercising innocent passage must obtain prior permission. These disagreements hardly belong to the United States and China alone: the US view is shared by the majority of UNCLOS signatories, but China’s is held by approximately 27 other states. China has also codified its own interpretation through domestic law.

Scholars have been very serious in dealing with the divergent legal interpretations mentioned above. The Ocean Policy Research Institute (formerly the Ocean Policy Research Foundation) organized a series of international conference “Regime of the Exclusive Economic Zone — Issues and Responses” four times from 2003 to 2005, inviting experts to make guidelines on navigation and overflight in the EEZs. At the final conference, participants adopted a proposal entitledGuidelines for Navigation and Overflight in the Exclusive Economic Zone as the result. However, the participants did not reach a consensus that the Guidelines should be sent out to the policy makers of the countries involved for their consideration. Considering seven years have elapsed since the Guidelines was published and the security environment of the seas in East Asia have drastically changed, OPRF organized a two-year study project for the review of the Guidelines in 2012 and 2013. As the result, the Principles for Building Confidence and Security in the Exclusive Economic Zones of the Asia-Pacific were drawn up by the participants of the project.

However, with more and more actions taken by extra-regional states in the name of FoN, including the recent case of the HMS Albion, the focus of the public debate on FoN has been shifted from its legal implications to a broader geopolitical discourse. The reason that freedom of navigation or freedom of the seas has become a central point of major power contention and regional concern is not, as we have seen, because the actors’ differing legal interpretations are new. Rather, it is because a more powerful China now has the capabilities to match the alternative view it has long held, and UNCLOS gives us an appropriate vocabulary with which to describe the resultant changes that are taking place in the maritime domain.

In the years to come, freedom of navigation and freedom of the seas will almost certainly remain touchstone principles in Asia — but this will not be because coastal and user states are grappling with competing UNCLOS interpretations. Rather, it will be because the question of what constitutes the high seas and who has access to them have become paramount geostrategic questions of the 21st century. Hence, a question has to be asked: Is the legal substance and function of freedom of navigation lost in translation when it has become a central point of major power competition and an instrumental role in broader strategic debates?