Since the time of Hugo Grotius, the author of Mare Liberum, which literally means “The Sea is Open to All Nations”, has this principle been adopted as part of international law on the seas. From thereon, freedom of navigation has been accepted as open to all nations.
But the freedom of navigation invoked by the US navy in Asian waters is a different case.
The nexus of the law enunciated by Grotius centers on the freedom of navigation and the sharing of resources found therein. Freedom of navigation has to emphasize the free passage of vessels over certain bodies of water as in the now hotly contested South China Sea, a passageway from the Pacific to the Indian Ocean and vice versa, among others.
Adjacent states have their territorial waters measured up to 12 nautical miles from the shoreline. Yet several bodies of water have been acknowledged as important waterways. They overlap the 12-mile limit, and are man-made like the Suez Canal of Egypt that links the Mediterranean Sea and the Red Sea onward to the Indian Atlantic Ocean; and the Panama Canal, a narrow passageway connecting the Pacific to the Atlantic Oceans. Because of the necessity to trade and navigation, these two canals have been “internationalized” or permanently made open to all ships regardless of the type and the flag they carry.
Due to peculiarities over some bodies of water, the Law of the Sea was adjusted to allow freedom of navigation and facilitate trade in some areas without infringing on the sovereignty of states. Geographical width, size and depthless littoral states have to adjust their territorial waters to allow foreign vessels to pass through that portion of the waterway applying the “right innocent passage” or through an international convention to allow foreign vessels, usually men of war with specific classification and tonnage like aircraft carriers, to pass thought the Straits of Bosporus. Vessels coming from Aegean could pass through the Sea of Marmara onward to the Black Sea to reach countries like Russia and Ukraine. This agreement is known as the Montreux Convention of 1937.
Other instances are the Strait of Hormuz and the Taiwan Straits. All ships that pass through these narrow straits are in fact crossing a body of water less than the 12-mile limit. The Strait of Hormuz is separated by Iran on the north and Oman and the United Arab Emirates to the south. Navigating to the Persian Gulf is like entering a cul-de-suc. There is no outlet except to return and pass through that narrow entry point called Strait of Hormuz.
That portion of the 12-mile limit claimed by Taiwan belongs to China, as Taiwan is its province
The strait is so narrow that it overlaps other’s territorial waters. Littoral states cannot wholly stretch their territorial waters without infringing the other’s boundary. Besides, vessels from countries like Iraq and Saudi Arabia will be affected once Iran decides to choke the Strait to prevent US naval ships or any ship that may join in imposing oil embargo on Iran.
In the Taiwan Straits, a body of water separating the island of Taiwan from the Chinese mainland is a narrow but open passageway. Strictly speaking, the waterway is wholly a territorial water of China. That portion of the 12-mile limit claimed by Taiwan belongs to China, as Taiwan is its province. Besides, the narrow strait provides no space for foreign vessels, such as the US navy, to pass and claim it as an international waterway.
Moreover, the freedom of navigation invoked by the US navy cannot apply in this instance. Any ship passing through it without permission would be violating China’s territorial waters. Only under exceptional circumstances are foreign vessels allowed to pass like wanting to evade typhoon or is in distress. If commercial and civilian ships are allowed at times to pass, usually it is with the approval of the host country.
The act of the US navy to deliberately pass through the narrow strait is to provoke China into war. It carries the usual trademark of US national security adviser John Bolton, a notorious “chickenhawk” who savours the idea of tightening the screw on countries opposed to US policies.
At this point, we have to clarify that freedom of navigation is automatically limited if foreign ships alien to area are, in fact, engaged in routine naval patrol. Such is different from innocent passage where civilian ships can invoke their right to freedom of navigation taking their passage as only incidental or one that cannot be avoided.
On the other hand, foreign naval ships, which are fully armed carrying out regular patrol in the area are opposed by littoral states much that they are often engaged in prohibited activities like engaging in espionage and monitoring activities of ships and aircrafts leaving to and from the ports indicating that their presence has nothing to do with freedom of navigation.
Their constant presence is seen more as a provocation like what the US Seventh Fleet is doing in the Taiwan Straits and in the South China Sea. It contributes to heighten the tension between China and the US.
The author, a Manila-based political analyst and columnist with The Manila Standard, is author of Labor-Only Contracting in a "Cabo" Economy.