Freedom of Navigation

Introduction

Freedom of navigation is a fundamental principle of the international law of the sea under which ships enjoy legally protected rights to navigate through maritime areas, subject to the applicable legal regime.

It is not one single unlimited freedom applying identically everywhere. Its scope depends on the maritime zone and the applicable rules of UNCLOS and customary international law.

The principle is particularly important on the:

• high seas;
• exclusive economic zone;
• territorial sea;
• international straits;
• archipelagic waters.

The central idea is:

Navigation Freedom Depends on the Maritime Zone

High Seas → Freedom of Navigation

EEZ → Navigation Freedom + Coastal-State Sovereign Rights

Territorial Sea → Innocent Passage

International Strait → Transit Passage

Archipelagic Waters → Innocent Passage / Archipelagic Sea Lanes Passage

Meaning of Freedom of Navigation

Freedom of navigation means that States have the right to operate and navigate ships in maritime areas where international law recognises such freedom.

It protects international shipping from unjustified interference by other States.

However, the exact scope of navigation rights differs according to the zone.

Therefore, it is incorrect to say:

“All waters outside territorial seas are completely free from coastal-State jurisdiction.”

The EEZ, for example, gives coastal States important sovereign rights and jurisdiction even though other States retain navigation freedoms.

Legal Basis

The principal UNCLOS provisions include:

• Article 58 → Freedoms of navigation and overflight in the EEZ
• Article 87 → Freedom of the high seas
• Article 90 → Right of navigation
• Articles 17–19 → Innocent passage
• Articles 37–44 → Transit passage through international straits
• Articles 52–54 → Passage through archipelagic waters
• Article 89 → No State may subject any part of the high seas to its sovereignty

Freedom of Navigation on the High Seas

Article 87 UNCLOS

The high seas are open to all States.

The freedom of the high seas includes:

• freedom of navigation;
• freedom of overflight;
• freedom to lay submarine cables and pipelines;
• freedom to construct installations permitted by international law;
• freedom of fishing;
• freedom of scientific research.

Freedom of navigation is therefore one of the fundamental freedoms of the high seas.

Article 90 – Right of Navigation

Article 90 provides that:

Every State has the right to sail ships flying its flag on the high seas.

This applies regardless of whether the State is:

• coastal;
• landlocked.

Therefore, a landlocked State can also operate ships on the high seas.

Flag-State Jurisdiction

Freedom of navigation does not mean that ships are subject to no law.

Article 92 UNCLOS

Ships generally sail under the flag of one State and are subject to its jurisdiction on the high seas, subject to recognised exceptions.

This creates the basic principle of:

Flag-State Jurisdiction

The flag State exercises jurisdiction and control over its vessels.

One Ship – One Flag

As a general rule, a ship should not use multiple flags for convenience during a voyage.

A ship using two or more flags according to convenience may be treated as a ship without nationality for relevant purposes.

Duties of the Flag State

Article 94 UNCLOS

The flag State must effectively exercise jurisdiction and control over ships flying its flag in:

• administrative matters;
• technical matters;
• social matters.

It must also take appropriate measures concerning:

• construction;
• equipment;
• seaworthiness;
• manning;
• working conditions;
• communications;
• prevention of collisions.

Therefore:

Freedom of Navigation + Flag-State Responsibility

Freedom of Navigation in the EEZ

The Exclusive Economic Zone is not high seas.

However, Article 58 preserves important freedoms for other States.

These include:

• freedom of navigation;
• freedom of overflight;
• laying submarine cables and pipelines;
• other internationally lawful uses related to these freedoms.

Therefore:

EEZ ≠ Territorial Sea

and:

EEZ ≠ High Seas

It is a special legal regime combining coastal-State rights with important freedoms for other States.

Coastal-State Rights in the EEZ

Under Article 56, the coastal State has:

Sovereign Rights

over:

• living resources;
• non-living resources;
• exploration;
• exploitation;
• conservation;
• management.

It also has jurisdiction regarding:

• artificial islands and installations;
• marine scientific research;
• protection and preservation of the marine environment.

But these rights do not eliminate the navigation freedoms of other States.

Due Regard

Article 58(3)

States exercising freedoms in the EEZ must have:

Due regard

for the rights and duties of the coastal State.

Similarly, the coastal State must exercise its rights with due regard to the rights and duties of other States.

This creates a balance:

Coastal State Rights

Navigation Rights of Other States

↓

Due Regard

Military Navigation in the EEZ

One of the most debated issues in the law of the sea concerns military activities in the EEZ.

UNCLOS does not expressly contain a single provision saying:

“Military ships have an unrestricted right to conduct all military activities in every EEZ.”

State practice differs concerning the extent to which military exercises, surveillance and intelligence-gathering activities may be conducted without coastal-State consent.

Therefore, the issue should be approached carefully through:

• Articles 56 and 58;
• due regard;
• applicable customary international law;
• relevant State practice;
• specific circumstances of the activity.

Freedom of Navigation vs Freedom of Overflight

These are related but separate freedoms.

Freedom of Navigation

Concerns:

Ships

Freedom of Overflight

Concerns:

Aircraft

Both are expressly recognised on the high seas under Article 87 and in the EEZ under Article 58.

Territorial Sea

Freedom of navigation in the territorial sea is more limited.

The coastal State exercises sovereignty over:

• water;
• airspace;
• seabed;
• subsoil.

However, foreign ships enjoy:

Right of Innocent Passage

under Article 17.

Innocent Passage

Passage is innocent when it is not prejudicial to the:

• peace;
• good order;
• security

of the coastal State.

Thus:

Territorial Sea = Sovereignty + Innocent Passage

It is not the same as the freedom of navigation on the high seas.

Non-Innocent Passage

Article 19 identifies activities that may make passage non-innocent.

Examples include:

• threat or use of force;
• weapons exercises;
• intelligence gathering;
• certain fishing activities;
• serious pollution;
• research or survey activities;
• interference with communications.

Therefore, the right of passage is subject to the conduct of the vessel.

Submarines

The treatment of submarines differs according to the passage regime.

Territorial Sea – Innocent Passage

Submarines must generally:

Navigate on the surface + show their flag

International Strait – Transit Passage

Submarines may:

Navigate in their normal mode

including submerged navigation.

High Seas

Submarines enjoy freedom of navigation subject to applicable international law.

International Straits

International straits have a special navigation regime.

Articles 37–44 UNCLOS

Where the transit-passage regime applies:

Transit Passage

is available to:

• ships;
• aircraft.

It includes:

• navigation;
• overflight.

Transit Passage

The passage must be:

Continuous and Expeditious

The right cannot be treated as an unrestricted right to carry out unrelated activities.

Ships and aircraft must comply with the duties under Article 39.

Transit Passage Cannot Be Suspended

Article 44

States bordering straits must not:

• hamper transit passage;
• suspend transit passage.

This is one of the strongest protections for international navigation.

Archipelagic Waters

Archipelagic States have another special regime.

Article 53

Archipelagic sea lanes passage applies through designated or applicable sea lanes/routes.

It protects:

• ships;
• aircraft.

Like transit passage, it requires:

Continuous and Expeditious Passage

Three Major Navigation Regimes

High Seas

Freedom of Navigation

↓

Territorial Sea

Innocent Passage

↓

International Strait

Transit Passage

↓

Archipelagic Waters

Archipelagic Sea Lanes Passage

This is one of the easiest ways to organise the topic for examinations.

Freedom of Navigation and Internal Waters

Internal waters are generally subject to the strongest coastal-State control.

As a general rule, there is:

No general right of innocent passage

in internal waters.

An important exception exists under Article 8(2) where the drawing of a straight baseline has newly enclosed waters that were not previously regarded as internal waters.

Freedom of Navigation and Contiguous Zone

The contiguous zone extends up to 24 nautical miles from the baseline.

The coastal State has limited enforcement powers concerning:

• customs;
• fiscal matters;
• immigration;
• sanitary laws.

It does not have full sovereignty over the zone.

Navigation therefore remains generally available, subject to the applicable international legal regime.

Freedom of Navigation and Continental Shelf

The continental shelf concerns primarily:

• seabed;
• subsoil;
• natural resources.

Under Article 78, the rights of the coastal State over the continental shelf do not affect the legal status of the superjacent waters or airspace.

Therefore, continental-shelf rights do not automatically give the coastal State control over navigation in the water column.

Important Formula

Continental Shelf → Seabed/Subsoil

Navigation → Water Column

Freedom of Navigation and High Seas Freedoms

Article 87 establishes the broader principle of high-seas freedoms.

However, high-seas freedom does not mean:

“No rules apply.”

Ships remain subject to:

• flag-State jurisdiction;
• UNCLOS;
• applicable treaties;
• customary international law.

Special exceptions also permit other States to exercise limited jurisdiction in situations recognised by international law.

Exceptions to Exclusive Flag-State Jurisdiction

Although flag-State jurisdiction is the general rule, UNCLOS recognises important exceptions.

These include situations involving:

• piracy;
• slave trade;
• unauthorised broadcasting;
• stateless vessels in specified circumstances;
• right of visit under Article 110;
• hot pursuit under Article 111.

Piracy

Articles 100–107

All States have a duty to cooperate in repressing piracy on the high seas and in places outside the jurisdiction of any State.

A warship may seize a pirate ship in accordance with UNCLOS.

The State whose courts exercise jurisdiction may determine penalties and action regarding the ship and property.

This is an important exception to ordinary flag-State jurisdiction.

Right of Visit

Article 110

A warship may exercise a right of visit when it has reasonable grounds to suspect that a foreign ship is involved in certain prohibited activities, including:

• piracy;
• slave trade;
• unauthorised broadcasting;
• certain cases involving absence of nationality;
• situations of false nationality in the circumstances specified by UNCLOS.

The right is exceptional and must be exercised according to international law.

Hot Pursuit

Article 111

Hot pursuit permits a coastal State to continue pursuit of a foreign ship beyond the territorial sea or other maritime zone in certain circumstances.

The pursuit must satisfy strict conditions.

It is another example showing that:

Freedom of Navigation ≠ Absolute Immunity from Enforcement

Freedom of Navigation and Environmental Protection

Freedom of navigation must coexist with the obligation to protect the marine environment.

UNCLOS Part XII establishes obligations concerning:

• prevention of marine pollution;
• preservation of marine ecosystems;
• cooperation;
• pollution from vessels.

Navigation rights cannot therefore be understood independently from environmental obligations.

Freedom of Navigation and Maritime Safety

International navigation also operates within rules designed to protect:

• life at sea;
• shipping;
• collision prevention;
• navigational safety;
• marine environment.

International instruments such as the SOLAS Convention and COLREGs complement the UNCLOS framework.

Freedom of Navigation Operations

The phrase Freedom of Navigation Operations (FONOPs) is used particularly in modern State practice to describe operations intended to challenge what a State considers to be excessive maritime claims.

A FONOP may involve a State sending naval vessels through an area where another State claims restrictions that the operating State considers inconsistent with international law.

The legal principle underlying such operations is distinct from the general legal right of freedom of navigation.

Important Distinction

Freedom of Navigation

→ International legal principle

FONOP

→ State practice/operation intended, among other things, to assert or protect navigation rights

FONOPs and UNCLOS

FONOPs can concern claims involving:

• excessive territorial-sea restrictions;
• unlawful restrictions in the EEZ;
• excessive straight baselines;
• excessive maritime zones;
• restrictions on navigation through international straits.

The legality of a particular operation depends on:

• the maritime zone;
• the exact claim being challenged;
• the conduct of the operating vessel;
• applicable international law.

Freedom of Navigation and Warships

Warships are ships of States and enjoy navigation rights under the applicable maritime regime.

However, the legal treatment of warships can differ depending on whether they are:

• in internal waters;
• territorial sea;
• international strait;
• EEZ;
• high seas.

Therefore, simply identifying a vessel as a warship does not answer every jurisdictional question.

Freedom of Navigation and Sovereignty

The central principle can be expressed as:

Navigation Rights Are Zone-Specific

The coastal State has:

Maximum sovereignty → Internal waters

Sovereignty subject to passage → Territorial sea

Limited sovereign rights + navigation freedoms → EEZ

Seabed rights + navigation in superjacent waters → Continental shelf

International freedoms → High seas

Maritime Zones and Navigation

Maritime Zone	Position of Navigation
Internal waters	Generally strongest coastal-State control
Territorial sea	Innocent passage
Contiguous zone	Navigation generally continues; limited coastal enforcement
EEZ	Freedom of navigation subject to due regard and coastal-State rights
Continental shelf	Shelf rights do not generally control navigation in superjacent waters
High seas	Freedom of navigation
International straits	Transit passage where applicable
Archipelagic waters	Innocent passage + archipelagic sea lanes passage where applicable

Freedom of Navigation vs Innocent Passage

Freedom of Navigation	Innocent Passage
Broad principle	Specific passage regime
Especially important on high seas	Territorial sea
Not limited to “innocent” conduct in the same way	Passage must be innocent
High seas navigation is a freedom	Coastal-State sovereignty continues
EEZ navigation also protected	Article 17
Zone-specific	Zone-specific

Freedom of Navigation vs Transit Passage

Freedom of Navigation	Transit Passage
Broad principle	Specific legal regime
High seas/EEZ	Qualifying international straits
Article 87/58	Article 38
Navigation	Navigation + overflight
General high-seas/EEZ framework	Continuous and expeditious transit
Depends on zone	Cannot be suspended under Article 44

Freedom of Navigation vs Archipelagic Sea Lanes Passage

Freedom of Navigation	Archipelagic Sea Lanes Passage
General principle	Special Part IV regime
High seas/EEZ particularly relevant	Archipelagic waters
Article 87/58	Article 53
Navigation rights	Navigation + overflight
Depends on maritime zone	Continuous and expeditious passage

Important Case: S.S. Lotus

S.S. Lotus (France v Turkey)

The Permanent Court of International Justice considered jurisdiction following a collision on the high seas.

The case is important for the development of principles concerning:

• jurisdiction at sea;
• flag-State jurisdiction;
• freedom of the seas;
• limits on coastal-State jurisdiction.

It remains a foundational case in the history of the international law of the sea.

Important Case: Corfu Channel

Corfu Channel (United Kingdom v Albania)

The ICJ considered navigation through the Corfu Channel, an international waterway.

The case is particularly important for:

• international straits;
• passage of warships;
• maritime safety;
• State responsibility.

Examination Point

Corfu Channel → International straits + navigation + State responsibility

Important Case: M/V Saiga (No. 2)

The M/V Saiga (No. 2) case before the International Tribunal for the Law of the Sea is important for:

• freedom of navigation;
• jurisdiction;
• EEZ;
• enforcement powers.

It illustrates the need to distinguish coastal-State enforcement rights from the rights of other States under UNCLOS.

Important Case: South China Sea Arbitration

Philippines v China

The South China Sea Arbitration addressed numerous questions concerning:

• maritime entitlements;
• EEZ rights;
• islands and rocks;
• traditional rights;
• environmental obligations.

The award is particularly useful for understanding the relationship between coastal-State maritime claims and the rights of other States under UNCLOS.

Freedom of Navigation and Maritime Claims

A State cannot create maritime restrictions merely by making a unilateral claim.

The legality of a restriction depends on:

• UNCLOS;
• customary international law;
• applicable treaties;
• the geographical zone;
• the nature of the claimed jurisdiction.

Therefore:

Claim ≠ Automatically Valid Jurisdiction

Key Principles

Principle of Zone-Specific Rights

Navigation rights vary according to the maritime zone.

Principle of Flag-State Jurisdiction

Ships on the high seas are generally subject to the jurisdiction of their flag State.

Principle of Coastal-State Sovereignty

Territorial seas remain under coastal-State sovereignty, subject to passage rights.

Principle of Due Regard

EEZ rights must be exercised with due regard to the rights of other States.

Principle of International Navigation

Qualifying international straits receive special protection through transit passage.

Principle of Non-Sovereignty of High Seas

No State may claim sovereignty over the high seas.

Common Examination Mistakes

Mistake 1: Freedom of Navigation Exists Everywhere in the Same Form

Incorrect.

The applicable maritime zone determines the scope of navigation rights.

Mistake 2: EEZ Is the Same as High Seas

Incorrect.

The EEZ is a special zone in which the coastal State has sovereign rights and jurisdiction over specified matters.

Mistake 3: Territorial Sea Has Complete Freedom of Navigation

Incorrect.

Foreign ships have the specific right of innocent passage.

Mistake 4: Aircraft Have Innocent Passage

Incorrect.

Aircraft are covered by the transit-passage regime in qualifying international straits.

Mistake 5: Transit Passage and Innocent Passage Are Identical

Incorrect.

Transit passage is broader and includes overflight.

Mistake 6: Freedom of Navigation Means No Coastal-State Jurisdiction

Incorrect.

Coastal States retain jurisdictional rights depending on the maritime zone.

Mistake 7: Freedom of Navigation Means No Flag-State Jurisdiction

Incorrect.

Flag-State jurisdiction remains central on the high seas.

Mistake 8: FONOPs Are the Same Thing as Freedom of Navigation

Incorrect.

Freedom of navigation is an international legal principle; FONOPs are particular State operations.

Mistake 9: Continental Shelf Gives Control Over Navigation

Incorrect.

Article 78 preserves the legal status of the superjacent waters and airspace.

Mistake 10: High Seas Are Unregulated

Incorrect.

High-seas navigation is governed by UNCLOS, customary international law and other applicable international rules.

Quick Revision

• Freedom of navigation is a fundamental principle of the law of the sea.
• It is zone-specific.
• Article 87 → freedom of navigation on high seas.
• Article 90 → right of navigation.
• Article 92 → flag-State principle.
• Article 94 → flag-State duties.
• Article 58 → navigation freedom in EEZ.
• EEZ navigation is subject to due regard.
• Territorial sea → innocent passage.
• Article 17 → right of innocent passage.
• Article 19 → meaning of innocent passage.
• International straits → transit passage.
• Article 38 → transit passage.
• Transit passage → ships + aircraft.
• Submarines may remain submerged during transit passage.
• Article 44 → transit passage cannot be hampered or suspended.
• Archipelagic waters → special passage regime.
• Article 53 → archipelagic sea lanes passage.
• Archipelagic sea lanes passage → ships + aircraft.
• Internal waters → generally no general innocent passage.
• Continental shelf → seabed/subsoil rights; does not generally control navigation in superjacent waters.
• Article 89 → no sovereignty over high seas.
• Piracy → Articles 100–107.
• Right of visit → Article 110.
• Hot pursuit → Article 111.
• Environmental obligations → Part XII.
• FONOPs → State operations asserting/challenging maritime claims.
• S.S. Lotus → jurisdiction and freedom of the seas
• Corfu Channel → international straits and navigation
• M/V Saiga (No. 2) → EEZ/enforcement/navigation
• South China Sea Arbitration → maritime entitlements and UNCLOS
• Central principle:

Freedom of Navigation ≠ Unlimited Freedom

One-Line Memory Trick

“87 – 58 – 17 – 38 – 53”

87 → High Seas

58 → EEZ

17 → Innocent Passage

38 → Transit Passage

53 → Archipelagic Sea Lanes Passage

And:

“High Seas = Freedom; Territorial Sea = Innocent; Strait = Transit; Archipelagic Waters = Sea Lanes.”

Final Navigation Formula

Maritime Zone → Applicable Navigation Regime

Internal Waters

→ Coastal-State control

↓

Territorial Sea

→ Innocent Passage

↓

International Strait

→ Transit Passage

↓

EEZ

→ Freedom of Navigation + Due Regard

↓

High Seas

→ Freedom of Navigation

↓

Archipelagic Waters

→ Innocent Passage + Archipelagic Sea Lanes Passage

Conclusion

Freedom of navigation is one of the foundational principles of international maritime law, but its scope cannot be understood as a single unrestricted right applicable to every part of the ocean.

UNCLOS creates different legal regimes for different maritime zones. On the high seas, Article 87 recognises freedom of navigation as a fundamental freedom available to all States. In the EEZ, Article 58 preserves navigation and overflight freedoms while requiring due regard for the sovereign rights and jurisdiction of the coastal State.

In the territorial sea, navigation is primarily exercised through the more limited right of innocent passage. In qualifying international straits, the stronger regime of transit passage applies, protecting both ships and aircraft and allowing submarines to navigate in their normal mode. In archipelagic waters, Article 53 provides the special regime of archipelagic sea lanes passage.

The fundamental balance is therefore:

Freedom of Navigation + Coastal-State Rights

Neither principle can be understood in isolation.

For examinations, the most important provisions are:

87 – 58 – 17 – 38 – 53

87 → High Seas

58 → EEZ

17 → Innocent Passage

38 → Transit Passage

53 → Archipelagic Sea Lanes Passage

The most important cases include S.S. Lotus, Corfu Channel, M/V Saiga (No. 2) and the South China Sea Arbitration.

Ultimately:

Freedom of Navigation is not freedom from international law; it is a freedom protected and regulated by international law.