The Legal Efficacy of Freedom of Navigation Assertions

• Author: Dale Stephens
• Position: Legal Officer in the Royal Australian Navy
• Pages: 235-256

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The Legal Efficacy

of Freedom of Navigation Assertions

Dale Stephens1

The 1982 Law of the Sea Convention2(1982 LOS Convention) is aquintessen-

tial product of the modernist period. The emphasis of the 1982 LOS Conven-

tion is decidedly communitarian and its content is fully influenced by an evolved

institutionalization of process. It is thus typical of the co-operative pragmatism of

current approaches to international law.3The interaction of sovereign interests in

exploiting and utilizing the sea and its resources are "managed" within its frame-

work, and potential conflicts concerning such rights are intended to be resolved

through emphatic utilization of dispute settlement mechanisms which will pay "due

regard" to the sovereign participants.4The 1982 LOS Convention continues the cod-

ification process of its antecedents, especially the 1958 Conventions,5though it sets a

"progressive" course with the inclusion ofnew concepts hitherto not recognized un-

der the law including, in particular, the archipelagic concept as ajuridical entity.

Given the holistic character of the 1982 LOS Convention, it is ironic, although

not surprising, that security issues are not directly tackled. When it comes to such

issues, the potential for a clash of sovereignty, or at least conceptions of the doc-

trinal substance of sovereignty, is likely. It is within this context that questions con-

cerning the efficacy of freedom of navigation rights are, naturally, most

pronounced. The United States, anotable absentee6from the Convention, is the

most significant proponent of exercising navigational freedom through use of its

The Legal Efficacy ofFreedom ofNavigation Assertions

naval and air forces. This has been driven from ameasured agenda to ensure that it

is instrumental in creating advantageous customary norms.7Additionally, the US

Freedom of Navigation Program is designed to influence interpretations of ambig-

uous provisions of the 1982 LOS Convention as awhole. In this latter respect espe-

cially, the concerns of the United States are shared by anumber of other maritime

powers who have either commenced their own navigational assertion programs8

or have otherwise relied upon US practice.9

It is acritical time for preserving international navigational freedom. The in-

creasing ratification of and accession to the 1982 LOS Convention means that nav-

igational regimes are being established that will have apermanent impact upon

political and strategic realities. The "game" is not necessarily being played accord-

ing to established rules by many coastal States. There are discordant voices in op-

position to maritime State strategies and the stakes for all remain impossibly high,

thus the need for precise and resolute action. Naval and air forces remain at the

forefront of this critical campaign and are the principal instruments for ensuring

effective and peaceful resolution of these threats.

The Freedom of Navigation Program which was first authorized by the United

States Government in the late 1970s has been criticized in both legal and normative

terms. 10 Arguments have been rendered which criticize the legal efficacy of the

program and question the apparent provocative nature of such assertions as un-

necessary exercises of hegemonic power projection. Moreover, such criticism con-

tends that the preservation of navigational freedom can be more effectively

achieved through other, less invasive, means. 11 Indeed these arguments suggest

that the exercise of the operational assertions may offend general principles of in-

ternational law concerning "abuse of rights." 12 It is contended that such arguments

are misplaced and that the freedom of navigation assertions undertaken by the

United States and others do provide the most effective means of preserving the bal-

ance of interests reflected in the legal architecture of the 1982 LOS Convention.

The current cacophony of claims made by some coastal States collectively to limit

navigational freedom is strident in both frequency and depth. In this dynamic

world of strategic norm creation and suppression, it is contended that navigational

assertions are an essential means of addressing these suspect claims. More criti-

cally, such assertions are undertaken in concert with the jurisprudence ofthe Inter-

national Court of Justice that has repeatedly endorsed the principle of navigational

freedom and recognized the legitimacy of asserting such rights. This paper argues

for the continued maintenance of the Freedom of Navigation Program as an essen-

tial means of preserving the integrity of the 1982 LOS Convention and seeks to

demonstrate the risks involved in failing to be vigilant to contrary strategies de-

signed to limit the freedoms so desperately won.

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