Freedom of Navigation Versus Innocent Passage

The US Navy engages in a practice they refer to as Freedom of Navigation (FoN) exercises as an attempt to enforce international rights as regards the movement of ships on the high seas.  While the term, ‘Freedom of Navigation’ is derived from the UNCLOS treaty (1), UNCLOS defines no such FoN procedure.  Thus, as practiced by the Navy, the procedure has no legal backing and is not a recognized enforcement act.  As such, it has no legal standing and accomplishes nothing from a legal perspective.  What it attempts to accomplish is the normalization and acceptance of the FoN rights related to a specific body of water as granted under UNCLOS.  Legally, there is no need to do this as FoN rights cannot be lost by failure to exercise them.  In a practical sense, the Navy procedure attempts to remind other countries of the FoN rights so as to prevent the acceptance of abridgement of those rights by countries making fraudulent claims to international waters.  The practice is intended to ‘send a message’ disputing the subject country’s fraudulent claim.

The US Navy’s FoN procedure is quite simple.  A ship passes through the disputed area, generally within 12 nm of the associated land. 

This passage is intended to demonstrate the UNCLOS FoN rights.  Ironically, the procedure actually reinforces the disputing country’s fraudulent claim because the procedure actually meets the requirements and definition of Innocent Passage, as described in UNCLOS (2).

Summarized, Innocent Passage is the right of a ship to pass through another country’s territorial waters in an ‘innocent’ manner.  The requirements of the passage are laid out in UNCLOS and, essentially, require that the passing vessel proceed in a continuous and expeditious movement with no prejudicial actions.  Thus, the passing ship cannot stop, land or launch aircraft or boats, use sensors to collect information (spy), exercise weapons, fish, or conduct research.

With this definition in mind, we can see that the Navy’s FoN exercises actually conform to the UNCLOS Innocent Passage definition.  Given that Innocent Passage can ONLY occur within a country’s territorial waters, the FoN can be construed as granting de facto territorial status to the waters in question, thereby reinforcing the disputed country’s territorial claim rather than disputing it!

If the Navy really wanted to dispute the territorial claim, the FoN procedure should be modified to have the passing vessel stop, exercise weapons, launch and recover aircraft, and operate sensors.  That would clearly demonstrate that the ship was NOT engaged in Innocent Passage but was, instead, exercising its Freedom of Navigation in the disputed waters.

Thus, sailing past one of China’s illegal, fraudulent, artificial islands actually reinforces China’s claim of sovereignty rather than disputing it because the passage meets the requirements of Innocent Passage which can only be associated with a valid territorial land mass.  The Navy is unwittingly granting and acknowledging China’s claims!



Discussion points:

1. If FoN doesn't work, what can more effectively accomplish the purpose?
2. How do you evaluate Iran's seizure of our riverine boats and crews in light of the legal requirements of Innocent Passage?
3. Does FoN accomplish anything?
4. Should we be using Innocent Passage to 'tweak' China and Russia's noses?  Before you answer, consider that they've done that to the US in Alaskan waters.
5. Is the actual FoN message, perhaps, that we're too weak willed to contest the Chinese expansion?

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(1)UNCLOS, Part VII High Seas, Section 1. General Provisions, Article 87 Freedom of the High Seas

(2)UNCLOS, Part II Territorial Sea and Contiguous Zone, Section 3. Innocent Passage in the Territorial Sea, Subsection A. Rules Applicable to All Ships, Article 19 Meaning of Innocent Passage