Freedom of Navigation, Measures Limiting the Freedom of Navigation, Transit Passage or Innocent Passage - Case Study Example

Explain and critically evaluate the concept of freedom of navigation. How does the law of the sea draw a balance between: a) providing and facilitating free/ innocent passage, and b) imposing restraints on such navigation? Introduction Freedom of navigation is well known principle in the legal regime governing sea space. It is a principle in the international law and the sea law. It emphasis on freedom to traverse the oceans and condemns war fought in oceans. The freedom of navigation is to be violated only in a compulsory international agreement. This principle is one of the pillars of the law of the sea and was at the origins of present international law1. Under this principle, apart from the exceptions under international law, sea vessels flying the flag of any independentstate should not be interfered with by other state. Currently, this right is enshrined as article 87(1) of United Nations Convention of 1982 on the Law of the Sea2. Not all members of UN have endorsed this Convention for example the US has signed, but has not endorsed this UN Convention. The UN Convention on the Law of the Sea is mostly based on the concept of freedom of navigation. Article36, article 58, article 78 and article 87 of Convection make ample reference to freedom of navigation as cited by3. In this perspective, the right of innocent navigation in the territorial sea and via archipelagic waters is specified in articles 17 to 26 and 52 of the UN Convention and the freedom of transit passage in straits used for international navigation is specified in article 38 of the Convention4. These rights mean the same – freedom of movement of ships. What differentiates them is the different influence coastal States may employ on the right of movement. What makes the resulting limitations or restrictions on the freedom of navigation so challenging is that they are carried out multilaterally – by involving competent global organizations, as well as unilaterally or bilaterally. Such restrictions are difficult to harmonize since they have different legal regimes5. In addition, it is their combined effect on the right of innocent passage which should be cause for concern in respect to the legal context established by the UN Convention on the Law of the Sea6. Movements of ships under the UN Convention on the Law of the Sea The UN Convention on the Law of the Sea forms a legal system which is founded on maritime zones. Generally, competences of the States bordering coast decrease as the distance from the coast increases and also these States are less comprehensive as regards navigation than as regards the mining of the natural resources of the ocean7. In addition to zone-based jurisdiction, coastal States may exercise authority over alien ships on the basis of set international norms and practices. For instance, Article 218 of the UN Treaty accords Coastal States jurisdictional authority over ships that are not rooted in the territorial principle8. Coastal States have power to enact legislations and policies concerning navigational safety and vessel-source pollution from alien vessels in their special economic zones-where ships enjoy the freedom of navigation. The jurisdictional competences (legislative and enforcement) of port States are broader within their territorial sea and archipelagic waters, but vessels underanalien flag enjoy the freedom of innocent passage in these maritime zones. As far as State law in the territorial sea is concerned, Nations can be generally classified into four classes as observed by9. The first class comprises of Nations which closely adhered to article 21 of the UN Convention which permits coastal States to enact legislations concerning innocent passage. In the second class include States which claim strict competences over a several matters that differ with article 21 of the UN Convention. The third class are those States which addresses their claims only in a broad way by emphasizing that foreign ship shall adhere to enacted legislations and regulations. The fourth class includes States which either have made no mention of legal jurisdiction in their laws on the territorial sea or have not as yet endorsed any specific laws and regulations. According to10 special laws apply for main global shipping routes through straits used for international navigation even if such straits are within the territorial sea of the Coastal State. The transit passage regime means that navigation is not controlled by the regime regarding innocent passage however by specific regimes which areliberal as regards navigation. The transit passage regime has been depicted asstretching between the right of navigation and innocent passage.Under the transit passage regime, right of navigation and the freedom of overflight exist for ships and aircraft going in their normal mode. Measures taken to provide and facilitate free/ innocent passage Coastal States Article 21of the UN tries to create harmony between the interests of global navigation and the right of port States to control the passage of foreign vessels in the territorial sea. Only a small portion of actions are qualified as not being safeguarded under the concept of innocent passage in article 19 of the UN Convention. Article 19 of the UN Convention ignores some actions from then protection accorded by the concept of innocent passage, while article 21 of the UN Convention opens the possibility for port States to limit further the freedom of navigation11. But, this alternative is limited. Under article 21paragraph 2, of the UNPact, State legislations and regulations shall not apply to the design, building, equipment etc. of foreign vessels unless they give effect to generally agreed international rules and norms12. This is an important limitation regarding the prescriptive authority of coastal Nations. It portrays a simple notion integrated throughout the Convention, viz. to safeguard the integrity of international maritime navigation and to reduce interference from port State jurisdiction13. Article 42 of the UN Convention sets the limits for such port State jurisdiction. States bordering global straits may impose legislations and policies relating to transit passage in respect of the safety of navigation, the control of maritime traffic and the prevention, reduction and control of pollution. Under article 41 of the UN Convention, Nations bordering straits may set sea lanes and traffic separation schemes, provided they follow the global regulations and are submitted to the International Maritime Organization (IMO) for approval. The laws regarding passage via archipelagic sea lanes are same but not entirely identical. However here again the involvement of the IMO is needed under article 53 of the UN Convention14. Measures which may be taken on the basis of particular international tries International treaties which are mostly established under the auspices of the IMO permit port States, including those bordering global straits, to impose further measures for the running and control of global navigation. 15assert that these measures may be taken unilaterally or in conjunction with the IMO. This system is still in the development phase and some ambiguity exists in this regard. Among various global treaties having a bearing on port State jurisdiction over alien shipping in the territorial sea, four contain measures that allow for the adoption of rules and standards applicable to foreign vessels. These treaties include the International Regulations for Preventing Collisions at Sea of 1972, the International Convention for the Prevention of Pollution from Ships of 1973, the International Convention for the Safety of Life at Sea of 1974 and the Basel Convention on the Control of Trans boundary Movements of Hazardous Wastes and their Disposal 198916. Sea vessels’ routing are controlled by Regulation V/10 contained in SOLAS, which was adopted in 1994. From the text, it is clear that on one side, the regulation tries to stress the role of the IMO in the formation ofcompulsoryvessels’ routing and, on the other side, it allows, although indirectly, the coastal States to establish these routing systems alone. This is useful when the systems are positioned within the territorial sea. Nations are not under anyduty to submit the formation of such systems in the territorial sea to the IMO for approvalhoweverthey may do so. This is according to article 22 of the UN Convention. Security Measures at seaspace Multilateral agreements Protocol14 of 2005 to the Rome Convention 15 is the most recent legislation which may, provide the framework for limiting the freedom of navigation in the future. The Protocol presents a new article, (article 8b) regarding the process to be adhered by State Party who wishes to board a ship flying the flag of a foreign State Party, outside the territorial sea of any State, when the wishing Party has sound grounds to suspect that the vessel or an individual on board the sea vessel is, has been, or is about to be, engaged in the commission of an crime under the UN Convention. The approval and support of the flag State is needed before such boarding can take place. Such approval may be made in general or on an ad hoc manner. Bilateral arrangements The multilaterally adopted provisions against the maritime shipment of weapons of mass destruction (WMD) are being enhanced by provisions having a bilateral basis, such as the Proliferation Security Initiative (PSI). It is the goal of the PSI “to veto the transfer or shipment ofWMD, their delivery systems, and associated materials to and from states and non-state actors of proliferation concern”17. Intercepting vessels suspected of transporting WMD without the consent of the flag State introduces the question of the compatibility of such action with the sea legislations, at least as a matter of principle. Under the UN Convention, the competence to capture a ship is determined on where such action is carried on. As long as the capture of a ship under a flag different from the capturing Nation is carried on in the internal waters of and by the port State concerned, such interception cannot be argued from the perspective of the law of the sea. Under article 25 of the UN Convention, Port States may take action on passage which is not innocent. The provisions of the UN Convention regarding innocent passage are to be taken as usual international law. Under article 19 of the UN Convention, passage is considered not innocent if it is “prejudicial to the peace, good order or security of the coastal State”; the actions which shall be established to be prejudicial to the peace, order or security are contained in article 19 of the UN Convention. Article 19 of the UN Convention ignores the port State’s restricting the exercise of passage with the aim tosafeguard theinterest of the community of Nations. Even though article 21 of the UN Convention affords the coastal State the power to endorse legislations and policies according to international law, this competence is restricted. None of the concerns which may be controlled on that basis would cover the mere transit of WMD. It is worth to note that in this context the transfer of nuclear materials is, under article 23 of the UN Convention, not against the principle of innocent passage18. The Security Council S/RES/1540 provides that the proliferation of WMD constitutes a threat to global peace. Even if it is agreed that the Security Council may employ such quasi-judicial authority, this does not make the transit of such substance non-innocent. The legal regime concerning international straits introduces special problems, given the improved status of global navigation. There is special jurisdictional association between a flag State and one of its ships on the high seas based intraditional international law. In the Lotus suit, the Court of International Justice (CIJ) stated that “vessels on the high seas are subject to no authority except that of the State whose flag they fly”19. Article 92 of the UN Convention codifies this opinion. Measures taken in the face of the threat of terrorism may lead to a short-termrestriction of the freedom of navigation. A number of Security Council resolutions, especially S/RES/1373 of 200120, constitute international law guideline for maritime interception carried out by several naval units in the Indian Ocean and off the Somali’s coast. Conclusion In nut shell, measures having the impact of or even geared toward limiting the freedom of navigation, transit passage or innocent passage are being taken multilaterally. It is true that the goals pursued are at least in principle – legal ones. Yet, there are several concerns. It is important to establish whether the IMO or the Security Council have strong legal foundation for acting as lawyers, a role they exercise de facto in many cases discussed in this paper. At moment, these limitations may still be bearable. However, if this trend continues and there are clear signs that it will – there is need for review in future. Bibliography Booth K, “Law, Force and Diplomacy at Sea”. (London: George Allen & Unwin 1985). Coil A, “International Law and U.S. Foreign Policy: Present Challenges and Opportunities”. (The Washington Quarterly 1988). Dupuy R and D Vignes, “A handbook on the new law of the sea”. (Martinus Nijhoff Publishers 1991). Jones S, “The Logic of International Relations”. Boston: Little, Brown & Company 1985). Harlow B, “Mission Impossible? Preservation of U.S. Maritime Freedoms”. (University of Washington 1985). Hoyle B, “Benefits of Not Participating in the Treaty, the United States without the Law of the Sea Treaty: Opportunities and Costs”. (Wakefield, Rhode Island: Times Press 1983). Laursen F, “Superpower at Sea”. (New York: Praeger Publishers 1983). Sanger C, “Ordering the Oceans”. (Toronto: University of Toronto Press 1987). Koh T, “Negotiating a New World Order for the Sea”. (Virginia Journal of International Law 1984). Spadi G, “The Bridge on the Strait of Messina: ‘Lowering’ the Right of Innocent Passage?” (International and Comparative Law Quarterly 2001, vol. 50). Read More