The concept of “lawfare” has been defined by US General Dunlap as “the strategy of using or misusing law as a substitute for international military measures to achieve an operational objective”. In the maritime field, it implies the misinterpretation and misapplication of international law of the sea and especially the principle of freedom of navigation.
In the last decades, the Eastern Mediterranean Sea has been a center of real conflicts and tensions, which had for consequence the misapplication of the rule of law in order to serve national interest.
How States’ practices jeopardize the primacy of the principle of Freedom of Navigation and which remedies exist to ensure its rightful application linked to the international order?
The prominence of the principle of freedom of navigation in the Law of the Sea
Initially defined by international customary law, the principle of freedom of navigation and the right of innocent passage were codified in 1984 in the United Nation Convention on the Law of the Sea (UNCLOS).
Every vessel, regardless its flag and its nature, is free to sail the high sea and the economic exclusive zone (EEZ). The principle of innocent passage within territorial waters enables to conciliate between the principle of Freedom of Navigation and coastal State Sovereignty.
The misuse of the Law of the Sea for national interests
The Eastern Mediterranean Sea is the stage of multiple maritime boundaries overlaps. National interpretations, misuses of International Law and the lack of bilateral agreements lead to increasing diplomatic and maritime tensions within the area. Two types of practices can be highlighted. First, the distortion of the Law of the Sea in order to extend national maritime domain. Secondly, the alteration of the legal framework applicable to a specific maritime area.
In 1973, Libya former Head of State, Colonel Gaddafi, unilaterally declared the Gulf of Sidra as internal waters and thus under Libya full sovereignty. This decision did not only enabled the extension of the country maritime boundaries, it also subjected the entrance in the Gulf to national authorization.
Libyan authorities warned that any vessel crossing the so-called “line of death” without prior authorization would be destroyed. Despite the political evolution in Libya, this maritime boundary is still in place in 2022 even though it is a breach of the principle of navigation and the right of innocent passage as defined by customary international law and UNCLOS (art 17, 57 and 87).
More recently, Turkish government proclaimed its rights over the continental shelf in the Aegean Sea, in opposition to Greek and Cypriot claims. Despite not being a contracting State of UNCLOS, Ankara’s decision is in conflict with customary international law, which provides that the continental shelf delimitation should be “the object of agreement between the States concerned”.
Moreover, in several occasions, Turkish warships while escorting research vessels in an unbounded EEZ, conducted “shadow operations” on foreign vessels. This behavior reflects a will to hamper the exercise of Freedom of Navigation for vessels transiting in this area in contradiction with customary international law and UNCLOS.
The exercise of Freedom of Navigation as a safeguard
The best remedy to ensure the application of the principle of navigation is to keep sailing within the contested areas. Such practices will not only demonstrate the non-recognition of the maritime boundaries unilaterally settled but will also assert the primacy of international Law of the Sea.
As a mean to face increasing tensions in the Eastern Mediterranean Sea, North Atlantic Treaty Organization (NATO) has been deploying warship through the operation Sea Guardian. Its purpose is to maintain maritime safety and security within the area, but also to conduct Freedom of Navigation Operations if necessary.
The US Navy FONOPS program established since 1979 enables the deployment of assets within contested maritime boundaries. In the 1980’s, following the qualification of the Gulf of Sidra as internal waters, US navy Carrier Strike Groups were sent to ensure the application of principle of navigation within the area.
As an example, the French Navy amongst others promotes the principle of Freedom of Navigation through the deployment of its fleet in every ocean and sea. In January 2022, French frigates Provence and Auvergne have been deployed in the Eastern Mediterranean Sea as a display of France‘s will to exercise and highlight this freedom.
These deployments have a determined purpose, to demonstrate the primacy and the importance of the rightful application of the Law of the Sea main provisions: the right for every vessel to exercise their right of innocent passage and to navigate within the high sea including EEZ.