Freedom of navigation

Definition
 {| class="wikitable mw-collapsible" style="background-color:#ffffcc;" ! scope="col" style="background-color:#ffffaa;"| Freedom of navigation Article 87(1) UNCLOS provides for the freedom of navigation with respect to ships on the high seas. This freedom is also found in other treaties and in customary international law.

In accordance with the freedom of navigation, every State has the right to sail ships flying its flag on the high seas without being subject to the jurisdiction of other States. In essence, this means that the ship has “the right to traverse the high seas with no or minimal interference from any other State”.

In the Norstar judgment, the International Tribunal for the Law of the Sea (ITLOS) considered that any interference with a ship’s navigation by a foreign State would breach Article 87 UNCLOS, including those acts of interference, which are not physical in nature. According to the Tribunal, non-physical acts of interference may constitute a breach of the freedom of navigation, even if they do not involve enforcement or if they do not produce a ‘chilling effect’ on the flag State. This suggests that non-enforcement cyber operations by non-flag States also qualify as breaches of the freedom of navigation, provided that they impermissibly interfere with navigation of a foreign vessel on the high seas.

To be lawful, any interference with a vessel’s freedom of navigation must be provided for in the UNCLOS regime (notably the right of visit and hot pursuit ), in another international treaty, or in customary international law.