Freedom of navigation
Definition[edit | edit source]
| Freedom of navigation |
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 Article 87(1) UNCLOS provides for the freedom of navigation with respect to ships on the high seas.[1] This freedom is also found in other treaties[2] and in customary international law.[3] In accordance with the freedom of navigation, every State has the right to sail ships flying its flag on the high seas[4] without being subject to the jurisdiction of other States.[5] In essence, this means that the ship has “the right to traverse the high seas with no or minimal interference from any other State”.[6] 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,[7] including those acts of interference, which are not physical in nature.[8] 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.[9] 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[10] and hot pursuit[11]), in another international treaty,[12] or in customary international law. |
Appendixes[edit | edit source]
See also[edit | edit source]
Notes and references[edit | edit source]
- ↑ 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.