Is the Freedom of Navigation Living its Last Days?
The Law of the Sea is built on a fundamental principle: the freedom of navigation. Already implemented in the Roman law through the idea of “commune omnium“, it was especially theorized by Hugo Grotius in 1609 in his famous book “de mare liberum“, written to defend Dutch commercial interests. Criticized by the maritime powers of the 17th century (Spain, Portugal, and United Kingdom), this principle is nowadays one of the pillars of the public order of the seas. However, the technological developments that allow us to go further and further in the exploitation of the seabed, the increasing globalization of trade by sea, the intensifying ecological threats and a creeping territorialisation of the oceans, are questioning this fundamental principle today.
UNCLOS is a real tool for preserving freedom of navigation
The United Nations Convention on the Law of the Sea (UNCLOS), signed in Montego Bay in 1982, contains a number of principles that seems to be sufficient to preserve the freedom of the seas, which is precisely defined in international waters (freedom of navigation, overflight, etc.).
In territorial waters, it limits derogations to the right of innocent passage. In order to enhance freedom of navigation in restricted waters, it also creates the right of innocent passage in archipelagic states and the right of transit passage through straits. Moreover, the many conventions adopted since 1982 to deal with transnational crime issues at sea are respectful of such principle of freedom of navigation as they require the flag State’s approval before boarding a ship on the high seas.
Towards the monopolisation of maritime areas
In order to satisfy their own strategic interests, some states promote their own interpretation of the law of the sea. Whether it is Russia in the Arctic or Turkey in the Eastern Mediterranean, they interpret UNCLOS to extend their sovereignty over disputed areas, in order to better control trade flows and access to energy resources.
Others even go so far as to adopt completely revisionist postures on the law of the sea. In 2018, China protested against French frigate “Vendémiaire”’s passage through its territorial waters (near the strait of Taiwan). China invoked a lack of authorisation, even though such rule is not included in the Law of the Sea.
Moreover, some States do not hesitate to engage in a show of force to support their very own interpretations of the Montego Bay Convention, in particular in order to deny foreign navies access to a maritime zone.
In November 2018, the Russian navy boarded three Ukrainian ships in the Kerch Strait to deny them access to the Sea of Azov. Such attitudes also exist in the South China Sea, through large-scale exercises conducted by the Chinese navy in disputed areas, or through the use of paramilitary militias (the People’s Armed Forces Maritime Militia) to assert sovereignty over disputed islets. For instance, the Philippines accused China of leading an incursion of more than 200 paramilitary boats on the 7th March 2021 around Whitsun Reef, near the island of Palawan.
Maintaining vigilance on the effectiveness of freedom of navigation
More than ever, such threatening attitudes require offensive actions to reaffirm the strength of freedom-of-navigation. The FONOPS program (freedom of navigation operations) conducted by the United States in the South China Sea meets this need and should be extended to other maritime areas.
Also, the EMASoH (European-led Maritime Awareness in the Strait of Hormuz) initiative launched in 2020 in reaction to multiple attacks against oil tankers in the Arabian Gulf, constitutes a firm response to aggressive attitudes towards freedom of navigation. The military operation AGENOR, pertaining to the initiative, involves 9 European countries including France.
However, beyond this vigilance at sea, States must promote the freedom of navigation principle within diplomatic bodies. In this respect, it is important to ensure that the current discussion on the United Nations treaty to preserve marine biodiversity beyond areas under national jurisdiction (BBNJ), and aimed in particular at creating marine protected areas on the high seas, does not ultimately result in a further infringement of a principle that should above all be preserved.
