Freedom of navigation
|Freedom of navigation|
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.
- Law of the Sea Convention, Part VII, Art 87 (1).
- For example, the Geneva Convention on the High Seas (entered into force 30th September 1962) 450 UNTS 11, article 2(1).
- “Union of Soviet Socialist Republics-United States: Joint Statement with Attached Uniform Interpretation of Rules of International Law Governing Innocent Passage” (1989) 28 International Legal Materials 1444 (The Jackson Hole Statement).
- Law of the Sea Convention, Part VII, Art 90.
- M/V “Norstar” judgment, para 216 “Freedom of navigation would be illusory if a ship – a principal means for the exercise of the freedom of navigation – could be subject to the jurisdiction of other States on the high seas”.
- Albert Hoffman, ‘Freedom of Navigation’ in Rudiger Wolfrum Max Planck Encyclopaedia of Public International Law (OUP 2011) para 22.
- M/V “Norstar” judgment, para 222.
- M/V “Norstar” judgment, para 223.
- M/V “Norstar” judgment, para 224, referred to as a “chilling effect”.
- Law of the Sea Convention, Part VII, Art 110.
- Law of the Sea Convention, Part VII, Art 111.
- M/V “Norstar” judgment, para 224 “…save in exceptional cases expressly provided for in the Convention or in other international treaties…”; Y Tanaka, ‘Navigational Rights and Freedoms’ (2015) in Donald Rothwell, Alex Oude Elfernik, Karen Scott and Tim Stephens The Oxford Handbook of the Law of the Sea (OUP 2015) 556; see also Geneva Convention on the High Seas (entered into force 30th September 1962) 450 UNTS 11, Arts 22-23.