The Freedom of Navigation Principle
During the seventeenth century, at the time when international maritime law as we know it was being formulated, a dispute between the adherents of Mare clausum - most importantly the Englishman Selder - and those of Mare liberum, forcefully upheld by the Dutchman Grotius, finally ended in victory for the latter. The outcome was to have important consequences for maritime transport in the centuries that followed.
The principle espoused by Grotius informs the main tenets of the commercial and military (and, in times gone by, colonial) systems, which are primarily based on the idea that navigation consists of states being able to make use of the seas for their purposes. In international maritime law, this concept of navigation has been translated into a delineation of maritime zones in order to resolve the fundamental conflict of interests between maritime powers and coastal states. As a criterion, this is generally accepted, though there may be disagreement over boundaries. The continuation of this form of maritime dominion from 1600 until the present day has led, on the one hand, to the emergence and consolidation of the absolute and inviolable principle of freedom of the high seas and, on the other, to the sovereignty of coastal states over the adjacent zones, except in cases of hot pursuit or innocent passage.
The codification of international maritime law, which began during the second half of the last century, has largely upheld the precepts of customary law in regulating dominion over the sea. As part of this continuing process, the Third United Nations Conference on the Law of the Sea opened in Montego Bay in 1982, at a time when maritime interests were in a state of considerable flux. This was due both to the emergence of new states following decolonization and to new ways of exploiting the sea and its biological and mineral resources. The clash of interests was therefore no longer between maritime and coastal states, but between industrialized and non-industrialized countries, themselves subdivided into countries with highly developed coastal areas and those with restricted access to the sea. The newly established countries not yet equipped with effective navies, in trying to find outlets to the sea or seeking to exploit the marine resources over the widest possible offshore area, were not particularly disposed to uphold the inviolable principle of Mare liberum, which interfered with their ambitions to extend their economic zones out to sea. Nor did they have any particular interest in extending or maintaining the sovereign rights of the coastal states. In the search for new sources of wealth from the sea, the latter wished to delimit territorial waters on the basis of productiveness rather than extent. As a result, sovereign rights now have a more practical application, and this has altered what they stand for.
This new concept underlies the United Nations Convention on the Law of the Sea, also known as the Montego Bay Convention, which was signed on 10 December 1982 and entered into force on 16 November 1994. By the end of 1995 the convention had been signed by 158 countries, including the European Community and 14 Community countries - the exception being the United Kingdom - but not the USA. It has been ratified by 82 countries. On 13 June 1996, only five Community countries had ratified. These were Germany, Greece, Italy, Austria and Sweden.
The Montego Bay Convention regulates the various uses of the sea, of which those related to the exploitation of biological and mineral resources are probably the most politically sensitive. With regard to freedom of navigation, the major difficulty is delimiting the territorial sea and contiguous zones.
International law in the seventeenth century fixed the limit at three nautical miles, according to the principle of usque ad arma ruant, in other words on the basis of the range, at the time, of a cannon-shot from the shore. It amounted to the recognition of military might as a criterion for defining sovereignty. This definition is still recognized by all states, though many have tried to extend their sovereignty. Nor was the Montego Bay Convention any more successful in eliciting agreement on extending territorial waters. Article 3 therefore contains the following compromise: that every state has the right to extend its own territorial sea to up to 12 nautical miles from the Baseline. This compromise is not watertight in so far as the rule cannot be imposed on states that were not party to the convention, among them the United States, and which are claiming freedom of navigation up to the three-mile limit.
The Contiguous Zone was introduced into international law through the 1958 Geneva Convention. Article 24 defines the contiguous zone as a zone of the high seas contiguous to its territorial sea, in which the coastal state may exercise the control necessary to prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations. Article 33 extended the contiguous zone from 12 to 24 miles, as a logical consequence of extending the territorial sea to the same distance. Inside the contiguous zone, the authorities of the coastal state have the power to ensure that there is no infringement of its laws, as mentioned above. Provision is made for punishing infringements of the above laws and regulations committed within its territory or territorial sea. In other words, inside this maritime zone, and within the limits indicated above, the laws of the coastal state override those of the flag state.
Outside the contiguous zone, and leaving aside the other maritime zones over which the coastal state has rights that do not interfere with navigation, there is the high sea, where certain activities may be carried out in accordance with customary international law and that laid down in the international conventions. In international law, therefore, the high sea has legal standing only as a place for carrying out subjective activities: it has never had an independent legal status. In other words, it is only through the activities carried out at sea, which are themselves regulated by laws, that the high sea has any legal standing.
As a result, the sea is exempt from territorial sovereignty, but not from legal sovereignty, because of the powers which states, through their national authorities, exercise over the activities carried out there by their own citizens. The fact that seafarers are citizens of a particular state overcomes the problem of territorial sovereignty, since the principle that all human activity is legally regulated can be applied to the high seas.
With regard to navigation, the notion that a ship belongs to a legal system is given practical form in the flag principle. According to this principle, ships are subject to the law of the state whose flag they fly. The process of registration enables ships to be identified. They are listed in a register which is held by the state in accordance with its own internal law. Registration invests in the state a responsibility for ensuring that ships obey its laws, which must be in keeping with international law. To this end, it can employ the services of its navy and naval auxiliaries. A state's jurisdiction over its ships has been defined as the power of policing on the high seas. This power can also be exercised in respect of ships registered in other countries either on the basis of customary law or under the relevant conventions (especially as regards fisheries), or in the context of a unilateral claim by a state to protect its own legitimate interests.
The right of recognition - warships can request any ship to identify itself - and the right of hot pursuit have been established by usage and partially codified and can be exercised, at least in contiguous zones. The conventions have also extended the right to exercise control where particular conditions or circumstances obtain, generally for the purposes of preventing or suppressing particularly unpleasant crimes. Finally, unilateral claims will usually be contested in the courts of the flag state. It is, however, becoming customary to extend the use of controls provided for in the international rules of war to certain internal disputes.