Freedom of navigation

These customs were developed and employed in local jurisprudence, often cases in prize courts regarding the capture of goods on the high seas by privateers.

This legal custom, which hereafter will be referred to as the consolato rule, was long observed by England (later Great Britain), France, and Spain, as major naval powers.

[6] In the larger geopolitical context, mare clausum was backed by the major naval and colonial powers of the day, including Spain and Portugal.

[7] By quite literally closing off access to the seas using their naval muscle, these states would profit handsomely from the growing maritime trade routes and foreign colonies.

This would represent not only a change in law, but also a fundamental shift in the perception of the maritime realm as something not to be owned, as land is, but rather as a shared resource.

[9] As the dominant naval powers of Spain and Portugal weakened, and international trade increased, Grotius’ mare liberum concept would come to be the accepted custom governing sovereignty at sea.

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 "freedom 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.

England, however, also held fast to the consolato rule in relations with other countries, as did France, until in 1744 it relented and extended the privilege to the neutral Dutch.

[11] The Dutch eventually established a web of bilateral treaties that extended the privilege of "freedom of navigation" to their ships through much of Europe.

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).

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.

[13] That state of affairs came about when 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" and rejecting "enemy ship makes enemy goods."

"[14] While the concept as a whole became accepted international custom and law, the practice and implementation of freedom of navigation would during these years be developed through local jurisprudence and political decision-making.

However, over time through local governance and jurisprudence a general agreement emerged that territorial waters would extend three leagues or three miles from the shoreline.

The right of innocent passage allows ships to travel in other countries' territorial seas if it is not prejudicial to the peace, good order or security of the coastal state.

Freedom of navigation has been thoroughly practiced and refined, and ultimately codified and accepted as international law under UNCLOS, in a legal process that was inclusive and consent-based.

The FON Program since 1979 has highlighted the navigation provisions of the LOS Convention to further the recognition of the vital national need to protect maritime rights throughout the world.

The FON Program operates on a triple track, involving not only diplomatic representations and operational assertions by U.S. military units, but also bilateral and multilateral consultations with other governments in an effort to promote maritime stability and consistency with international law, stressing the need for and obligation of all States to adhere to the customary international law rules and practices reflected in the LOS Convention.[33]U.S.

armed forces have conducted FONOPs in areas claimed by other countries but considered by the U.S. to be international waters, such as naval operations in the Gulf of Sidra in the 1980s;[34] as well as in strategically important straits (such as Gibraltar, Hormuz, and Malacca).

[41] Other scholars have pointed out that the UNCLOS does not specifically mention freedom of navigation for warships outside of the high seas but that it has been practice between states to accept military activities at least within the EEZ.

[42] The concept of innocent passage in international law and under UNCLOS refers as noted earlier to the right of a vessel to pass through the territorial waters of a foreign state under certain conditions.

In May 2015, the Wall Street Journal reported that the “US Navy regularly conducts freedom of navigation transits in the region ... [but] has yet to receive explicit authorization from the administration to do so within 12 nautical miles of the artificial islands”.

[58] On May 13, 2015 Senator Bob Corker mentioned the Wall Street Journal article while questioning Assistant Secretary of Defense for Asian and Pacific Security Affairs David B. Shear about piloting a boat within 12 nautical miles of one of the artificial islands and asked Shear directly: “Are we actually going to do that?” [59] At the start of October 2015, the US Department of Defense made it clear that a FONOP within 12 nautical miles of one of China’s artificial islands was “not a question of if, but when”,[60] and by mid-October 2015, US officials said the FONOP was expected "within days".

In December 2018 China deployed naval forces to warn off the USS Chancellorsville while it made a FONOP around the Paracel Islands without approval of the Chinese government.

The U.S. Navy conducted its first FONOP in 2020 on January 25 by sending the littoral combat ship USS Montgomery past Chinese claims in the Spratly Islands.

[77] On April 28, 2020, the Japan-based guided-missile destroyer USS Barry conducted a freedom of navigation operation in the vicinity of Paracel Island chain off Vietnam.

[82] In April 2018, three Australian naval vessels transited the South China Sea towards Vietnam and, along the way, met a 'robust' challenge from the Chinese navy.

At the June 2018 Shangri-La Dialogue, ministers from France and the UK jointly[83] announced that their ships would sail through the South China Sea to continue to uphold the collective right to freedom of navigation.

[82] The Royal Navy also conducted what is believed to be a FONOP with HMS Albion, a 22,000-ton amphibious transport dock, in late August 2018 in the waters near the Paracel Islands.

A spokesperson from the Royal Navy said that "HMS Albion exercised her rights for freedom of navigation in full compliance with international law and norms.