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What does “freedom of navigation” actually mean?

Freight ship with containers at sea

Freight ship with containers at sea, © www.colourbox.de

29.07.2019 - Article

Germany is the world’s third largest export nation. A sizeable proportion of this international trade is conducted via the oceans. Freedom of navigation is therefore of considerable importance to Germany. But what exactly does it involve?

Freedom of the high seas

The rules and regulations applicable to navigation depend on where a ship finds itself. The United Nations Convention on the Law of the Sea (UNCLOS) of 1982 distinguishes between the territorial sea, an exclusive economic zone and the high seas. In the high seas, vessels of all flags enjoy unrestricted freedom of navigation as one of the freedoms of the high seas. This also applies to an area declared as an exclusive economic zone by a coastal state (breadth of up to 200 nautical miles from the coast in question). Within this zone, however, due regard must be given to the justified use of economic resources by the coastal state.

Innocent passage through the territorial sea and transit through straits

Image of the Strait of Dover from space
Strait of Dover from space© NASA/GSFC/MITI/ERSDAC/JAROS

The territorial sea extends up to 12 nautical miles from a state’s coast. It is part of a coastal state’s territory and thus falls within its jurisdiction. However, by providing for the right to innocent passage, the UN Convention on the Law of the Sea restricts the sovereign rights of coastal states with regard to navigation. Ships of other flag states are thus permitted to pass through the territorial sea without prior authorisation provided they proceed without delay or stopping. A coastal state may adopt regulations relating to the nature of innocent passage, for example designating specific sea lanes with which ships in transit passage must comply.

Straits in which the territorial sea of different coastal states border directly on each other are of special significance here. Many straits are of particular strategic importance to international navigation. Often there are no alternative routes. Therefore the Convention on the Law of the Sea prohibits states bordering straits, regardless of their territorial sea areas, from impeding transit passage through such straits. These states only have limited powers within such areas which allow them to ensure the safety of shipping and to intervene where there is a danger of pollution. This ensures that the freedom of navigation is also upheld to the greatest possible extent in the case of passage through straits which serve international navigation.

Many of the fundamental rules on the freedom of the high seas and innocent passage initially developed under customary international law, i.e. as unwritten but generally accepted rules. Today, however, they are enshrined in writing in the United Nations Convention on the Law of the Sea of 10 December 1982.

Regulatory framework for shipping – the International Maritime Organization (IMO)

Containers on a mega-sized freight ship
Containers on a mega-sized freight ship© dpa

International rules and standards relating to shipping are set by the International Maritime Organization (in short, IMO) based in London. The IMO is a specialised agency of the United Nations with 174 full members and 3 associate members. Germany has been a full member since 1959. In addition to the basic rules for navigation, the IMO also focuses, among other things, on safety on the high seas and environmental protection.

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