Law of the Sea Treaty Concept of Freedom of Navigation (Research Paper Sample)

LAW OF THE SEA TREATY CONCEPT OF FREEDOMOF NAVIGATION
By:
Presented to:
Date:
Law of the Sea Treaty Concept of Freedom of Navigation
How the Law Balances Free Passage and Restraint Imposition
Freedom to navigate is an international policy that envisages liberty in the oceans and disapproves any hostility or war in the ocean. The policy was first contained in the high seas convention of 1958 that assured high seas freedom to navigate, fish, laying of submarine cables and pipelines within the oceans. It then with another convention of 1960 got a replacement with Sea Treaty law, formally called the "Third UN Convention on the Sea law" in 1982 (Ridenour, 2006). The extent of this freedom is widespread as it allowed construction of artificial islands and facilitated the expedition of scientific research. Article 90 of this act specifically defines the right to navigation the right of every "state" to sail ships carrying its flag on the oceans and seas (Ridenour, 2006). It is, consequently, in the public domain that the freedom of navigation is the right of the state rather than an individual.
The 1982 Sea law convention’s objective was to establish with due regard of the sovereignty of all states, a legal act for seas and oceans to facilitate global communication. Further, the aim was also to promote harmonious use of sea resources efficiently equitable and proper conservation. Despite the fact that Treaty had hailed immense achievements in the area of international sea law, it has also had its due share of condemnation. Occasionally the treaty has been questioned of its reliance upon traditional national legislation to execute its stipulations (Smith II, 1976). The challenge was on instilling its mandate due to reliance on the national legislature to set laws, for instance; the pollution provisions restrain its power to command adherence. Whereas the advantage of such a format is that it allows the national autonomy, its flaw is that nation may not view such legislation as a priority (Smith II, 1976). The freedom of navigation has been contested in some countries that have shown enthusiasm to justify certain violations that have happened abroad. Such signals of weak domestic enforcement and regulation have led to the materialization of flags of convenience states.
Politically, the treaty has witnessed challenges by some countries especially the United States that remained un-ratified to the treaty. The US has maintained that the profit sharing provisions related to deep seabed mining is an antithetical to values of free-market capitalism. Those who support the acceptance in the US hold that ratification will help cast aside customary law and in its place codify the autonomy of navigation rights to necessitate best possible maneuver of the navy. On the hand, those who oppose belief that ratification will infringe on US sovereignty since each party is subject to a superior international oversight (Ridenour, 2006).
In early 20th century, the regulation governing operations in the sea were exclusively customary laws. Their basis essentially was on the concept of autonomy and exclusive flag state authority over ships on the high seas. However, many developments relating to high seas followed this era and have witnessed meetings over sea navigation. One such development is the 1958 convention. It stated that all sections of the ocean that are not incorporated in the exclusive economic zone, in the regional sea or the internal waters of countries are great sea conventions (Marine Insight, 2011).
The first treaty is the momentous reduction in the area of the high seas that has led to a significant increase of the sea limit of coastal nations. The second was the Geneva Convention, which even though considered having many omissions regarding the confines of national jurisdiction brought transparency and certainty to the law. The third agreement contains detailed regulation of activities that ought to take place on the high seas that way orienting the growth of through the adoption of international conventions. The fourth is the UN Conference on the management of the sea that came into force in November 1994 whose Endeavour is to revise the agreements on high seas.
Ever since the inception of the agreement in 1958, there have been instances of conflict between nations over the innocent passage by foreign warships about unacceptable environmental risk. The objective of the United Nations Convention on the Law of the Sea targeted on making an outline of rules concerning states' rights and obligations in the territorial sea, continental shelf, and high seas. However, the modern-day international conventions focus mainly not on a particular region but the uses of the sea such as fishing, transport, navigation, and pollution (Ridenour, 2006). These new agreements put more consideration on the economic aspect that the early treaty. The growth in technology and increasing pursuit for resources have multiplied and intensified the uses of the seas, with increased potential for conflict. The emancipation to navigation has opened commerce and trade across the world. The seabed is no longer just a regional landmark but a source of commercial mileage.
The liberty to navigate meant an unrestricted state operation at high sea. However, you will notice that article 89(1) provides a partial explanation of how seas are "open to all states." The treaty needs to define the word ‘freedom’ in order to preserve the interests of others in the international society. In a draft of article 27 of the International Court of Justice (ICJ), there is grant for nation’s abstinence from any actions that might influence the use of navigation areas by other countries or member states (Icj-cij.org, 1973). The rules envisaged that the freedom of anything on the high seas is used by all countries while keeping practical regard to the concern of other nations in their application of the freedom of the high seas.
One case law on the application of this principle is the 1987 trial at the International Court of Justice (ICJ) in the Fisheries Administration lawsuit between United Kingdom and Iceland. Under the statute then in force, the Iceland enjoyed privileged fishing rights in the pertinent part of the high seas (Icj-cij.org, 1973). As per the 1958 Geneva Convention article 2 on high seas, the principle of practical concern for welfare of another nation need to be adhered. Therefore, the treaty required that both the Iceland and the United Kingdom show regard to each other interest and in extension to other states’ interest in sea resources. Because the Iceland had not ratified the Geneva Convention, application of customary law the court’s ruling was used. The decision reached that both countries ought to negotiate reasonably under mutual agreement for an equitable solution of their differences keeping in mind the interest of other states (Smith II, 1976).
The law of the sea has maintained to illicit and enjoyed mixed reception since the states’ interests have not yet yielded one unified response. Further, the needs of the countries for greater control of resources have not complemented the objective of the maritime interest for sustained in commercial undertaking on the sea. The liberty to navigate has employed two conflicting principles: first one being freedom from sovereignty of any state, and the other has been the freedom of navigation and commerce both in peace and war. The recognition, sustenance and expansion of Sovereignty, have been a critical consideration for shaping the perspective behind territorial waters as some countries feel they will lose their independence in ratifying standard sea laws (Smith II, 1976). Such strong beliefs and stands have made it difficult to pursue permanent resolution to conflicts. Free shipment and innocent passage standings though internationally renowned maritime rights present several challenges.
Such complexities come into play when some states are dissatisfied with innocent passage because of the alleged weakness to its operation. More often, they then proceed to modify or even completely change this freedom into the broader right of the free shipment through certain territorial waters in the international straits in disregard of other states (Smith II, 1976). Other nations emphasize that until an agreement is reached on the extent of expanded fishing rights, navigation, and exploitation of seedbed resource, no modification or evaluation of rights can take place. The controversies facing the free navigation and innocent passage are the stalemate the sea laws enforcers’ encounter in trying to promote safe sea operation.
Considering all these deadlocks above, how then does the law of sea strike a balance between providing facilitation of free passage and impose restraints on violators of the navigation laws? The balance is not yet achieved. However, there is an ongoing contemporary process of reassessment and the efforts to reach an accommodation to agree to both innocent passage and free navigation exercise. The Conventions Nations law of the sea conference without misunderstanding is undertaking it (Smith II, 1976). As with free passage, and its terms are firmly in the international law, and its existence is owed to sustain freedom of navigation on the sea that way promoting commerce. It is also the result of the enforcers’ effort to allow coastal states or littoral states a right to pursue policies of territory sovereignty.
In circumstances where coastal land standards are regarded by the international law as excessive an abridgement to rights of innocent passage, a more reasonable general criteria is applied. That is whenever a conflict arises over the validity of state standards, and a balancing point has to be struck. It is between promoting the international requi...