Freedom of Navigation under Public International Law and the Law of the Sea

Freedom of navigation is a fundamental principle enshrined in international maritime law, particularly under the United Nations Convention on the Law of the Sea (UNCLOS). This principle is vital for the regulation of global maritime trade, security, and cooperation. Below is a meticulous exploration of the Freedom of Navigation under the context of Public International Law and the Law of the Sea.

I. Legal Basis for Freedom of Navigation

UNCLOS (United Nations Convention on the Law of the Sea)
- UNCLOS is the primary international treaty that governs the law of the sea, including the rights and duties of states concerning navigation, resource use, and maritime zones.
- Article 87 of UNCLOS explicitly provides for the freedom of navigation as a component of the "freedom of the high seas."
- This freedom is available to all states, coastal or land-locked, and includes:
  1. Freedom of navigation
  2. Freedom of overflight
  3. Freedom to lay submarine cables and pipelines
  4. Freedom to construct artificial islands
  5. Freedom of fishing
  6. Freedom of scientific research
Customary International Law
- Even prior to the codification of UNCLOS, freedom of navigation was recognized as a customary international law principle, deeply rooted in state practice and opinio juris.
- Maritime nations, both historically and in contemporary practice, have upheld the right of ships flying any state's flag to freely traverse the high seas without unjustifiable interference by other states.

II. Scope and Limitations

Freedom of Navigation in Different Maritime Zones
- The right to freedom of navigation applies differently in various maritime zones recognized by UNCLOS:
  1. Territorial Sea (up to 12 nautical miles from the baseline)
    - Coastal states have sovereignty over their territorial sea, but this sovereignty is limited by the right of innocent passage for foreign vessels. Innocent passage (UNCLOS Articles 17-32) must be continuous, expeditious, and not prejudicial to the peace, good order, or security of the coastal state.
  2. Contiguous Zone (up to 24 nautical miles)
    - In this zone, the coastal state may exercise limited control to prevent or punish violations of its customs, fiscal, immigration, or sanitary laws, but the principle of freedom of navigation remains intact.
  3. Exclusive Economic Zone (EEZ, up to 200 nautical miles)
    - The coastal state has sovereign rights over natural resources in the EEZ, but other states enjoy the freedom of navigation, overflight, and the laying of submarine cables and pipelines (Article 58).
  4. High Seas (beyond 200 nautical miles)
    - Freedom of navigation on the high seas is virtually unrestricted, except for specific prohibitions (e.g., piracy, slavery, illicit trafficking).
  5. Archipelagic Waters
    - Archipelagic states (e.g., the Philippines) are allowed to regulate navigation within their archipelagic waters, but must respect the right of archipelagic sea lanes passage, which permits continuous and expeditious navigation through routes designated by the archipelagic state.
Innocent Passage vs. Freedom of Navigation
- In territorial seas, foreign ships enjoy the right of innocent passage, which requires that navigation be non-threatening and not involve activities such as weapons exercises, espionage, or pollution.
- On the high seas and EEZ, however, freedom of navigation is broader, allowing for uninterrupted movement as long as it does not infringe upon other lawful uses or threaten public order.
Limitations to Freedom of Navigation
- While UNCLOS affirms the freedom of navigation, it also recognizes legitimate restrictions imposed by international law or treaties:
  - Environmental Protection: Coastal states may adopt laws and regulations concerning pollution from ships within their territorial waters (Article 21).
  - Security: Coastal states can enact laws in the territorial sea for matters of defense, security, and public order (Articles 19-25).
  - Piracy and Unlawful Activities: States may exercise jurisdiction over vessels engaging in piracy, human trafficking, and unauthorized broadcasting on the high seas (Articles 100-107).

III. Key Jurisprudence and State Practice

Military Activities and Freedom of Navigation
- Some states, such as the United States, assert that military activities, including naval maneuvers and surveillance, are permitted as part of freedom of navigation in the EEZ. This view has been contested by certain coastal states, notably China, which claims that foreign military activities in the EEZ are inconsistent with its sovereign rights over natural resources.
- International tribunals and legal scholars generally support the view that military navigation, when non-threatening and non-prejudicial to the coastal state's rights, is protected under the principle of freedom of navigation in the EEZ.
- Freedom of Navigation Operations (FONOPs): The United States conducts FONOPs to challenge what it perceives as excessive maritime claims by states that undermine navigational freedoms guaranteed under international law.
South China Sea Dispute
- The dispute over freedom of navigation in the South China Sea, particularly concerning the overlapping claims of China and the Philippines, among others, has been a focal point of international concern.
- In the 2016 Arbitral Award (Philippines v. China), the tribunal upheld the principle of freedom of navigation, declaring that China’s extensive claims based on the "nine-dash line" have no legal basis under UNCLOS. It emphasized that states cannot interfere with the lawful use of EEZs and high seas for navigation and other purposes.
International Case Law
- Corfu Channel Case (1949): This early International Court of Justice (ICJ) case underscored the importance of freedom of navigation and found Albania liable for damages after its waters posed a threat to international shipping.
- Nicaragua v. United States (1986): The ICJ ruled that the mining of Nicaraguan harbors by the United States violated Nicaragua's sovereignty and breached its right to innocent passage.

IV. Philippine Perspective on Freedom of Navigation

Geopolitical Context
- As an archipelagic state, the Philippines has a strategic interest in both maintaining the security of its waters and ensuring the free flow of maritime trade and navigation, particularly in the South China Sea.
- The Philippines has consistently affirmed its commitment to freedom of navigation, as evidenced by its reliance on UNCLOS mechanisms to resolve territorial and maritime disputes, especially through its engagement in the 2016 Arbitral Award.
- The Philippine Navy and Coast Guard work to enforce maritime laws and protect navigational freedoms, particularly in disputed areas like the West Philippine Sea.
Challenges
- The Philippines faces significant challenges in enforcing freedom of navigation due to competing maritime claims in the South China Sea, particularly from China. In response, the Philippines has relied on diplomatic and legal avenues, in coordination with international allies, to safeguard its navigational rights and maritime claims.

V. Conclusion

Freedom of navigation is a cornerstone of the Law of the Sea and international maritime law. It ensures that vessels of all states can traverse maritime zones, from territorial seas to the high seas, subject to certain limitations that protect the sovereignty, security, and environmental interests of coastal states. For the Philippines, as both a coastal and archipelagic nation, freedom of navigation is crucial not only for economic security but also for maintaining stability in contested waters like the South China Sea. The continuous observance and defense of this principle are vital to upholding international order and maritime cooperation.