Navigational Freedom: The Most Critical Common Heritage
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The rule of law matters. Law serves to provide clear expectations as to juris- dictional boundaries and national rights and obligations so necessary for co- operative relations, economic life, and more broadly, human creativity. Thus, we need to know the breadth of the territorial sea, who manages coastal stocks of fish, the rules for straits transit and a myriad of other rules to func- tion cooperatively in the oceans. If some states claim three nautical miles for the territorial sea and others two hundred nautical miles, we simply do not know the basic rules. But of even greater importance, the rule of law serves as a check on power. An oceans space driven by out-of-control national claims and a “might makes right” credo can neither serve community com- mon interests nor restrain conflict. The Law of the Sea Convention is a re- markable achievement in the rule of law—providing both stability and a check on power.
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These important provisions for navigational freedom are of the utmost importance in protecting global trade, one of the core mechanisms for global economic growth, and for lessening the risks of conflict involving efforts to assert jurisdiction over warships and other vessels entitled to sovereign im- munity. For “zone-locked” states, the absence of these navigational freedoms would mean losing access to the oceans as though the state were land- locked. Indeed, without the clear legal recognition of these fundaments of navigational freedom, UNCLOS would not have been possible. Sadly, however, the international community must be diligent in combating the challenges to navigational freedom that still exist. These include:
- Aberrant and vague “area” claims such as the old “Libyan Line of Death,” the Chilean “Mar Presencial,” China’s “nine-dashed-line” and North Korea’s 50-mile security zone claim;
- Excessive straight baseline claims;
- Excessive claims concerning innocent passage in the territorial sea; particularly claims concerning consent or notification for warships; claims which have never been accepted as part of oceans law and which have been jointly rebutted by the United States and Russia in the Jackson Hole Statement of September 23, 1989;
- llegal claims asserting ship construction or operation standards for transit through the territorial sea or the economic zone which have not previously been adopted through the IMO mechanism; and
- Claims limiting full high seas navigational freedoms in the exclusive economic zone.
For the most part aberrant and vague area claims and claims beyond permissible limits for the territorial sea and economic zone seem to be slowly re- ceding as the Convention takes greater hold each and every year. The more concerning problems for the future likely relate to the “character” of each of these zonal areas in UNCLOS. We must not permit gradual encroachments to roll back the core UNCLOS compromise of extended coastal state resource rights in return for full navigational freedom in the EEZ and straits transit rights through, over, and under straits used for international navigation.
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The United States will at some point fully adhere to the Convention. Every oceans industry interest in the United States supports the Convention, from the oil majors to the environmentalists. Indeed, the only opposition is ideologically based, rather than interest based, and even then is senseless un- less rooted in inaccuracies about the Convention. In the meantime, the United States accepts the normative provisions of the Convention as cus- tomary international law, and the United States Navy has one of the best records in the world in careful compliance.