Freedom of Navigation
Encyclopedia
Freedom of Navigation is a principle of customary International Law
that, apart from the exceptions provided for in international law, ships flying the flag of any state shall not suffer interference from other states. This right is now also codified as article 87(1)a of the 1982 United Nations Convention on the Law of the Sea
. However, not all UN members (notably the United States of America) have ratified this convention.
, international maritime law
was governed by customs that were sometimes codified as for example in the 14th-century Spanish Consolato del Mare (Customs of the sea). Such customs governed as a practical matter the adjudication of cases about the capture of goods on the high seas by privateer
s in Prize court
s. The rule that can be distilled from the Consolato (and other contemporary codes) is: "enemy goods can be captured on neutral ships and neutral goods are free on board enemy's ships" The first part of this rule implies that neutral shipping is not inviolable in time of war (though the second part implies that goods of neutral owners are), and hence contradicts what we now call "freedom of navigation." This doctrine (which we will refer to as the consolato-rule for short) was long observed by England
(later Great Britain
), France
and Spain
among the major naval powers.
However, starting in the 17th century the Dutch Republic
, then the dominant European carrier, championed a different rule, known as "free ship (makes) free goods." This doctrine stated that even enemy goods (always excepting contraband
) are inviolate in neutral bottoms, though sometimes (not always) the corollary of the rule was that neutral goods carried by enemy ships could be confiscated. The first part of this rule, however, makes neutral ships inviolable and is hence the core of the freedom-of-navigation doctrine. As this doctrine went against international custom, it had to be embodied in bilateral treaties to become part of international law. The earliest example of such a treaty is actually one concluded between king Henry IV of France
and the Ottoman Porte in 1609, though that was followed in 1612 by one between the Porte and the Dutch Republic. Once the Eighty Years' War between Spain and the Dutch Republic had ended (during which Spain defended their claim of sovereignty over the oceans against the Dutch claim of "freeedom of the high seas," as developed in Hugo Grotius
' Mare Liberum
) the two concluded a treaty of commerce in which "free ship, free goods" was enshrined. The Dutch Republic subsequently concluded bilateral treaties with most other European countries, containing the "free ship, free goods" principle, though it sometimes had to use force to obtain this concession, as against England in the Treaty of Breda (1667) and again in the Treaty of Westminster (1674)
. England, however, also held fast to the Consolato-rule in relations with other countries, as did France, until this country in 1744 relented and extended the privilege to the by then resolutely-neutral Dutch.
The Dutch had in this way, by using treaty-law, built up a web of bilateral treaties that, on a reciprocal basis, extended the privilege of "freedom of navigation" to their ships in the many 18th-century European wars in which they remained neutral (serving all belligerents with their shipping services). Great Britain in particular chafed under this arrangement, as she was the dominant naval power in the 18th century and the Dutch privilege undermined the effectiveness of her naval blockades. Matters came to a head during the War of the American Revolution when the Dutch, shielded by the 1674 Anglo-Dutch treaty, supplied both the Americans and the French. The British made extensive use of their "right of search" of Dutch ships and this led to the Affair of Fielding and Bylandt
in which a British naval squadron in peace time arrested a Dutch convoy, despite the objections of its Dutch naval escort.
Soon thereafter the British abrogated the 1674 treaty and that might have meant the death of the "free ship, free goods" doctrine if not empress Catherine II of Russia
had taken up the torch around the same time. In March, 1780 she published a manifesto in which (among other things) she claimed the "free ship, free goods" principle as a fundamental right of neutral states. To defend that principle, she formed the First League of Armed Neutrality
to which the Dutch adhered at the end of the year (which sparked the Fourth Anglo-Dutch War
). The principles from her manifesto were soon adhered to, not only by the members of the League, but by France, Spain and the new American Republic also (though, as belligerents, they could not become members of the League).
Nevertheless, as a principle of international law (apart from treaty law) "free ship, free goods" was soon again overturned by the practice of both sides in the French Revolutionary Wars
of the turn of the 19th century. For instance, in the jurisprudence of the American courts of the early 19th-century, the Consolato-principle was universally applied in cases not covered by treaties. On the other hand, the U.S. government made it a steadfast practice to enshrine the "free ship, free goods" principle in the treaties of amity and commerce it concluded with other countries (starting with the 1778 one with France and the 1782 one with the Dutch Republic). In other words, the American view (following the British practice) was that at that time Consolato was customary international law, which however, could be superseded by treaty law on a bilateral basis. The U.S., however, earnestly strove for the substitution of Consolato by "free ship" in customary law also.
This happy state of affairs came about when Great Britain finally gave up its resistance to the principles, first formulated by empress Catherine in 1780, and acquiesced in the 1856 Paris Declaration Respecting Maritime Law, which enshrined "free ship makes free goods," while rejecting "enemy ship makes enemy goods." The Declaration was signed by the major powers (except the U.S.A., ironically) and soon adhered to by most other powers. The new rule (a combination of the "best" parts of Consolato and "free ship") became:"A neutral flag covers enemy's goods (except contraband); neutral goods are not liable to seizure under the enemy's flag."
In the 20th century this new principle became part of the broader body of laws of the sea currently embodied in the United Nations Convention on the Law of the Sea
, as President Woodrow Wilson
advocated in point 2 of his Fourteen Points
(see Freedom of the seas
). The United States has not ratified the 1982 treaty, though it is a party to the preceding 1958 Convention on the High Seas
. As the reason for non-ratification is not related to the principle of freedom of navigation, which the U.S. now considers to be part of customary international law, this does not imply that the U.S. does not consider itself bound by the principle.
' Freedom of Navigation program challenges territorial claims on the world's oceans and airspace that are considered excessive by the United States, using diplomatic protests and/or by interference. The United States position is an insistence that all nations must obey the international law of the sea as stated by the UN Law of the Sea Convention, though the United States has yet to ratify the treaty. Some coastal states make claims that the United States see as inconsistent with international law, which, if unchallenged, would limit navigational freedoms of the vessels and aircraft of the U.S. and other countries.
On several occasions, U.S. armed forces have conducted operations in areas claimed by other countries, such as naval operations
in the Gulf of Sidra
in the 1980s. Throughout the years U.S. forces have been performing "Freedom of Navigation" operations in the Straits of Gibraltar, Strait of Hormuz
, Straits of Malacca, the Indonesian Archipelago, the Black Sea
, and occasionally the Canadian Arctic.
One of the notable operations conducted as part of Freedom of Navigation program was performed by USS Yorktown
, during which, on February 12, 1988 she was "nudged" by Soviet frigate Bezzavetny in an attempt to divert the vessel out of Soviet-claimed territorial waters; some observers have called the event "the last incident of the Cold War."
International law
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...
that, apart from the exceptions provided for in international law, ships flying the flag of any state shall not suffer interference from other states. This right is now also codified as article 87(1)a of the 1982 United Nations Convention on the Law of the Sea
United Nations Convention on the Law of the Sea
The United Nations Convention on the Law of the Sea , also called the Law of the Sea Convention or the Law of the Sea treaty, is the international agreement that resulted from the third United Nations Conference on the Law of the Sea , which took place from 1973 through 1982...
. However, not all UN members (notably the United States of America) have ratified this convention.
History
Up to the early modern ageEarly modern period
In history, the early modern period of modern history follows the late Middle Ages. Although the chronological limits of the period are open to debate, the timeframe spans the period after the late portion of the Middle Ages through the beginning of the Age of Revolutions...
, international maritime law
Admiralty law
Admiralty law is a distinct body of law which governs maritime questions and offenses. It is a body of both domestic law governing maritime activities, and private international law governing the relationships between private entities which operate vessels on the oceans...
was governed by customs that were sometimes codified as for example in the 14th-century Spanish Consolato del Mare (Customs of the sea). Such customs governed as a practical matter the adjudication of cases about the capture of goods on the high seas by privateer
Privateer
A privateer is a private person or ship authorized by a government by letters of marque to attack foreign shipping during wartime. Privateering was a way of mobilizing armed ships and sailors without having to spend public money or commit naval officers...
s in Prize court
Prize court
A prize court is a court authorized to consider whether or not a ship has been lawfully captured or seized in time of war or under the terms of the seizing ship's letters of marque and reprisal...
s. The rule that can be distilled from the Consolato (and other contemporary codes) is: "enemy goods can be captured on neutral ships and neutral goods are free on board enemy's ships" The first part of this rule implies that neutral shipping is not inviolable in time of war (though the second part implies that goods of neutral owners are), and hence contradicts what we now call "freedom of navigation." This doctrine (which we will refer to as the consolato-rule for short) was long observed by England
England
England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...
(later Great Britain
Kingdom of Great Britain
The former Kingdom of Great Britain, sometimes described as the 'United Kingdom of Great Britain', That the Two Kingdoms of Scotland and England, shall upon the 1st May next ensuing the date hereof, and forever after, be United into One Kingdom by the Name of GREAT BRITAIN. was a sovereign...
), France
France
The French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan France...
and Spain
Spain
Spain , officially the Kingdom of Spain languages]] under the European Charter for Regional or Minority Languages. In each of these, Spain's official name is as follows:;;;;;;), is a country and member state of the European Union located in southwestern Europe on the Iberian Peninsula...
among the major naval powers.
However, starting in the 17th century the Dutch Republic
Dutch Republic
The Dutch Republic — officially known as the Republic of the Seven United Netherlands , the Republic of the United Netherlands, or the Republic of the Seven United Provinces — was a republic in Europe existing from 1581 to 1795, preceding the Batavian Republic and ultimately...
, then the dominant European carrier, championed a different rule, known as "free ship (makes) free goods." This doctrine stated that even enemy goods (always excepting contraband
Contraband
The word contraband, reported in English since 1529, from Medieval French contrebande "a smuggling," denotes any item which, relating to its nature, is illegal to be possessed or sold....
) are inviolate in neutral bottoms, though sometimes (not always) the corollary of the rule was that neutral goods carried by enemy ships could be confiscated. The first part of this rule, however, makes neutral ships inviolable and is hence the core of the freedom-of-navigation doctrine. As this doctrine went against international custom, it had to be embodied in bilateral treaties to become part of international law. The earliest example of such a treaty is actually one concluded between king Henry IV of France
Henry IV of France
Henry IV , Henri-Quatre, was King of France from 1589 to 1610 and King of Navarre from 1572 to 1610. He was the first monarch of the Bourbon branch of the Capetian dynasty in France....
and the Ottoman Porte in 1609, though that was followed in 1612 by one between the Porte and the Dutch Republic. Once the Eighty Years' War between Spain and the Dutch Republic had ended (during which Spain defended their claim of sovereignty over the oceans against the Dutch claim of "freeedom of the high seas," as developed in Hugo Grotius
Hugo Grotius
Hugo Grotius , also known as Huig de Groot, Hugo Grocio or Hugo de Groot, was a jurist in the Dutch Republic. With Francisco de Vitoria and Alberico Gentili he laid the foundations for international law, based on natural law...
' Mare Liberum
Mare Liberum
Mare Liberum is a book in Latin on international law written by the Dutch jurist and philosopher Hugo Grotius. In The Free Sea, Grotius formulated the new principle that the sea was international territory and all nations were free to use it for seafaring trade...
) the two concluded a treaty of commerce in which "free ship, free goods" was enshrined. The Dutch Republic subsequently concluded bilateral treaties with most other European countries, containing the "free ship, free goods" principle, though it sometimes had to use force to obtain this concession, as against England in the Treaty of Breda (1667) and again in the Treaty of Westminster (1674)
Treaty of Westminster (1674)
The Treaty of Westminster of 1674 was the peace treaty that ended the Third Anglo-Dutch War. Signed by the Netherlands and England, it provided for the return of the colony of New Netherland to England and renewed the Treaty of Breda of 1667...
. England, however, also held fast to the Consolato-rule in relations with other countries, as did France, until this country in 1744 relented and extended the privilege to the by then resolutely-neutral Dutch.
The Dutch had in this way, by using treaty-law, built up a web of bilateral treaties that, on a reciprocal basis, extended the privilege of "freedom of navigation" to their ships in the many 18th-century European wars in which they remained neutral (serving all belligerents with their shipping services). Great Britain in particular chafed under this arrangement, as she was the dominant naval power in the 18th century and the Dutch privilege undermined the effectiveness of her naval blockades. Matters came to a head during the War of the American Revolution when the Dutch, shielded by the 1674 Anglo-Dutch treaty, supplied both the Americans and the French. The British made extensive use of their "right of search" of Dutch ships and this led to the Affair of Fielding and Bylandt
Affair of Fielding and Bylandt
The Affair of Fielding and Bylandt refers to a brief naval engagement off the Isle of Wight on 31 December 1779 between a Royal Navy squadron, commanded by Commodore Charles Fielding, and a naval squadron of the Dutch Republic, commanded by rear-admiral Lodewijk van Bylandt, escorting a Dutch convoy...
in which a British naval squadron in peace time arrested a Dutch convoy, despite the objections of its Dutch naval escort.
Soon thereafter the British abrogated the 1674 treaty and that might have meant the death of the "free ship, free goods" doctrine if not empress Catherine II of Russia
Catherine II of Russia
Catherine II, also known as Catherine the Great , Empress of Russia, was born in Stettin, Pomerania, Prussia on as Sophie Friederike Auguste von Anhalt-Zerbst-Dornburg...
had taken up the torch around the same time. In March, 1780 she published a manifesto in which (among other things) she claimed the "free ship, free goods" principle as a fundamental right of neutral states. To defend that principle, she formed the First League of Armed Neutrality
First League of Armed Neutrality
The first League of Armed Neutrality was an alliance of European naval powers between 1780 and 1783 which was intended to protect neutral shipping against the British Royal Navy's wartime policy of unlimited search of neutral shipping for French contraband...
to which the Dutch adhered at the end of the year (which sparked the Fourth Anglo-Dutch War
Fourth Anglo-Dutch War
The Fourth Anglo–Dutch War was a conflict between the Kingdom of Great Britain and the Dutch Republic. The war, tangentially related to the American Revolutionary War, broke out over British and Dutch disagreements on the legality and conduct of Dutch trade with Britain's enemies in that...
). The principles from her manifesto were soon adhered to, not only by the members of the League, but by France, Spain and the new American Republic also (though, as belligerents, they could not become members of the League).
Nevertheless, as a principle of international law (apart from treaty law) "free ship, free goods" was soon again overturned by the practice of both sides in the French Revolutionary Wars
French Revolutionary Wars
The French Revolutionary Wars were a series of major conflicts, from 1792 until 1802, fought between the French Revolutionary government and several European states...
of the turn of the 19th century. For instance, in the jurisprudence of the American courts of the early 19th-century, the Consolato-principle was universally applied in cases not covered by treaties. On the other hand, the U.S. government made it a steadfast practice to enshrine the "free ship, free goods" principle in the treaties of amity and commerce it concluded with other countries (starting with the 1778 one with France and the 1782 one with the Dutch Republic). In other words, the American view (following the British practice) was that at that time Consolato was customary international law, which however, could be superseded by treaty law on a bilateral basis. The U.S., however, earnestly strove for the substitution of Consolato by "free ship" in customary law also.
This happy state of affairs came about when Great Britain finally gave up its resistance to the principles, first formulated by empress Catherine in 1780, and acquiesced in the 1856 Paris Declaration Respecting Maritime Law, which enshrined "free ship makes free goods," while rejecting "enemy ship makes enemy goods." The Declaration was signed by the major powers (except the U.S.A., ironically) and soon adhered to by most other powers. The new rule (a combination of the "best" parts of Consolato and "free ship") became:"A neutral flag covers enemy's goods (except contraband); neutral goods are not liable to seizure under the enemy's flag."
In the 20th century this new principle became part of the broader body of laws of the sea currently embodied in the United Nations Convention on the Law of the Sea
United Nations Convention on the Law of the Sea
The United Nations Convention on the Law of the Sea , also called the Law of the Sea Convention or the Law of the Sea treaty, is the international agreement that resulted from the third United Nations Conference on the Law of the Sea , which took place from 1973 through 1982...
, as President Woodrow Wilson
Woodrow Wilson
Thomas Woodrow Wilson was the 28th President of the United States, from 1913 to 1921. A leader of the Progressive Movement, he served as President of Princeton University from 1902 to 1910, and then as the Governor of New Jersey from 1911 to 1913...
advocated in point 2 of his Fourteen Points
Fourteen Points
The Fourteen Points was a speech given by United States President Woodrow Wilson to a joint session of Congress on January 8, 1918. The address was intended to assure the country that the Great War was being fought for a moral cause and for postwar peace in Europe...
(see Freedom of the seas
Freedom of the seas
Freedom of the seas is a principle in the international law and law of the sea. It stresses freedom to navigate the oceans. It also disapproves of war fought in water. The freedom is to be breached only in a necessary international agreement....
). The United States has not ratified the 1982 treaty, though it is a party to the preceding 1958 Convention on the High Seas
Convention on the High Seas
The Convention on the High Seas is an international treaty created to codify the rules of international law relating to the high seas, otherwise known as international waters. The treaty was one of four agreed upon at the first United Nations Convention on the Law of the Sea...
. As the reason for non-ratification is not related to the principle of freedom of navigation, which the U.S. now considers to be part of customary international law, this does not imply that the U.S. does not consider itself bound by the principle.
United States "Freedom of Navigation" Program
The United StatesUnited States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
' Freedom of Navigation program challenges territorial claims on the world's oceans and airspace that are considered excessive by the United States, using diplomatic protests and/or by interference. The United States position is an insistence that all nations must obey the international law of the sea as stated by the UN Law of the Sea Convention, though the United States has yet to ratify the treaty. Some coastal states make claims that the United States see as inconsistent with international law, which, if unchallenged, would limit navigational freedoms of the vessels and aircraft of the U.S. and other countries.
On several occasions, U.S. armed forces have conducted operations in areas claimed by other countries, such as naval operations
Action in the Gulf of Sidra (1986)
In the Action in the Gulf of Sidra, the United States Navy deployed aircraft carrier groups in the disputed Gulf of Sidra in the Mediterranean Sea. Libya claimed that the entire Gulf was their territory, at 32° 30' N, with an exclusive fishing zone. Libyan leader Muammar al-Gaddafi asserted this...
in the Gulf of Sidra
Gulf of Sidra
Gulf of Sidra is a body of water in the Mediterranean Sea on the northern coast of Libya; it is also known as Gulf of Sirte or the Great Sirte or Greater Syrtis .- Geography :The Gulf of Sidra has been a major centre for tuna fishing in the Mediterranean for centuries...
in the 1980s. Throughout the years U.S. forces have been performing "Freedom of Navigation" operations in the Straits of Gibraltar, Strait of Hormuz
Strait of Hormuz
The Strait of Hormuz is a narrow, strategically important waterway between the Gulf of Oman in the southeast and the Persian Gulf. On the north coast is Iran and on the south coast is the United Arab Emirates and Musandam, an exclave of Oman....
, Straits of Malacca, the Indonesian Archipelago, the Black Sea
Black Sea
The Black Sea is bounded by Europe, Anatolia and the Caucasus and is ultimately connected to the Atlantic Ocean via the Mediterranean and the Aegean seas and various straits. The Bosphorus strait connects it to the Sea of Marmara, and the strait of the Dardanelles connects that sea to the Aegean...
, and occasionally the Canadian Arctic.
One of the notable operations conducted as part of Freedom of Navigation program was performed by USS Yorktown
USS Yorktown (CG-48)
USS Yorktown was a in the United States Navy from 1984 to 2004, named for the American Revolutionary War Battle of Yorktown.-History:...
, during which, on February 12, 1988 she was "nudged" by Soviet frigate Bezzavetny in an attempt to divert the vessel out of Soviet-claimed territorial waters; some observers have called the event "the last incident of the Cold War."