239

FREEDOM OF THE SEAS

Ephraim P. Holmes

The concept of freedom of thc seas is time to Lime, challenged the basic con­ long rootcd in man's usc of the sea!; for cept. tradc and commercc. TIJ(! ahility of lIIen Much of this body of law has evolved freely to use the scas as a n'liahlc through the individual actions of states, communications link has becn "~'ienlial while in recent years more formal codi­ to thc developmcnt of an economieally fication has been undertaken through and politically interdependent modern the use of multilateral conventions and world. treaties. Whatever the source, the gen­ Freedom of the seas means that all eral thrust of the movement has been states have a basic right to use the seas aimed at limiting or regulating the uni­ in support of their national and interna­ lateral claims of states which have tional aims. Howcver, this docs not attempted to impose broad controls mcan an unrestricted usagc, without over the free usc of the seas by all who n'~ard for the interests of neighbors and wish to do so. Thus, it appears that the trading partncrs. On the contrary, since community of nations has long recog­ the ('arli('st till1l's, limited restrielion on nized that the general interests of the tlw Us(~ of th,' s,'as has Iwen ~"I\I'rally group would best be served by pre­ 111""'1' It,d liS n"(,,,~..'ary hy tIll! 1'0111- serving this basic right. lI1J1nity of nations. For ,''\(all1plt'. nation" Today, we may be thankful that have tended to asscrt specific restrictive these early efforts have been largely measures on the usc of seas adjacent to successful. The modcrn world is an their national coastlines. These measures economically interdependent entity, have be(:n aSIH:rtmi for rl:asons of flf:­ whose prosperity and security is hased eurity, economics, or other national on seaborne commerce and whose unity interm,ts. is sustained by the threadlike sealanl!s Ilowcver, the hasie priJl(:iple that the which crisscross our global charts. 8Cas arc and should be frec for the usc Although freedom of the seas is vital of all has not been substantially to global commercial operations, it is abridged. In fact, for the last 400 years absolutely essential for the efficient a growing body of internaLionallaw has operation of naval forces in peacetime. been developed, principally in order to All navies must be concerned with any deal with those issues which have, from move to limit the movement of naval 240 forces by the extension of controls over which declares the existence of a broad the high seas, for those forces must be territorial sea thereby imposes duties on able to steam when and where the itself as well as claiming privi"~ges. If tlu: support of national and comrnerdal extl:nt of territorial HI!a dairneu is he­ interests requires them to go. yond the ability of the stale to control, In this respect, the gradual evolution it is possible that otlwr nations mip;ht of rules for the free usc of the seas has usc the urea for lIlounting aggression included the development of the right against a third state, thus compromising of innocent passage in order to facilitate thc neutrality of the original declarer. the usc of the seas for both commercial Such considcrations arc relatively and naval interests. As a practical mat­ minor, however, when compared to the ter, the term "innocent passage" is implications to a small maritime state of subject to varied interpretations within any meaningful erosion of the general the maritime community. Basically, right to free usc of the seas. In the final however, passage of vessels through ter­ analysis, a workable and consistent legal ritorial seas is considered innoecnt so regime for the hip;h sl~as is of grcutl~st long ;1$ no acts arc cOlllmitted which ar!' bl'llI'fit 10 IIII' smnlh·sl. wI'nkl'sl slnh·s. prejndicial to the ~l'eurity of thl' l'oa:law of the sea. This change which has characterized the last is so despite the probability that addi­ few decades. In earlier times, political tional restrictions on the uses of the seas and technical events moved at a pace might be included. Some have claimed which allowed for the rational develop­ that evcnts of reccnt times have threat­ ment of theories on international rela­ ened seriously to erode the concept of tions and law consistent with the univer­ freedom of the seas. There have been sal desire of men for peaceful inter­ precedent-setting unilateral actions by action with their fellows. But now, some nations in pursuit of their own events frequently seem to outstrip the national interests which have had the ability of precedent and practice to cffect of challenging the righ t of all build rational and ordered guidelines for stntcs to the frce usc of the seas. TheRe international conduct. A tendency is actions, although cause for concern by developing to assert claims now, in the general maritime community, arc at order to reserve privileges for the future. least deservirig of our ~"ympathetie con­ l\lany of these decisions have, of neces­ siderations, for all nations should and sity, heen madc without appropriate wiII act in support of their own best regard for future implications, interests. (Jowever, the problem often It is manifestly true that we exist becomes that of accurately perceiving today in a world far different from that one's own best interest, both for the of our fathers. It is a world shrunken as long term and for the moment. much by advances in communications For example, a small maritime state and transport as by the advent of 241

intercontinental weaponry. It is no percen t seaborne. In 1966 the seaborne small wonder that the historic definition trade of the United States alone was of the width of the territorial sea as that valued at over $:30 billion, and this distance within range of a cannonhall figure will continue to inercase. Clearly, now seems incOlI!;istcnt with thc tinwt<. then, we should neither he blinded by Granted, the hasis of this rule is archaic, ~I'eeulation on possihle new uses of the hut the il-mile territorial sea is thc only seas nor forgetful of till: proven :lIId rule which has been universally acceptcd increasing value of the oceans as high­ and thus provides the only basis for ways. developing a new and more meaningful The interdependence which has been modern rule. Questioning of an existing fostered in modern society, principally rule is quite acceptable, for this is how through seaborne cultural and trade the regime of law matures and becomes links, now dictates that no one state can more useful; and such questioning is to make unilateral reductions in the area of he expected, particulary in light of the seas availahle for the usc of all today '5 c1umging world. without vitally affi:cting the well-heing For I'xmupll', in the last del'i11le, the mill ~I'eurity of 1I1most all other stlltes. minds of nwn have heen stimlliuted to For that rcason, as well as to prevent, high excitenll'nt by visions of new possi­ wherever possible, points of friction bilities for the exploitation of the rr­ hl'lwcen nations, it is nccessary thut wc sources of the sea and the seabed. The look to the possibilities of improving advancement of technology, combined the existing rules for thc use of the sea. with the prolifcration of states who I have pointed out that a growing must look incrclIsingly seaward for body of international law has bcen foocl, minerals, and jobs for their cx­ formulated in support of the concept of panding populations, has made it man­ freedom of the seas. The American datory for all of us to gct on with the philosopher, Henry Ward Beecher, once task of using the ocean and its resources said that "Laws ... arc constantly to the fullest practical extent. tending to gravitate. [or become un­ Although the imagination of man­ balanced] Like clocks, they must be kind has bcen sparked by prospective occasionally cleaned ••• and sct to true new uses for the seas, it must not be time." Perhaps now is the time for us to forgollen that the most valuable im­ investigate to what degree the laws of mediate and futurc use of the oceans is the sea have become unbalanccd and thcir historic utility as an economical their need to be set III step with the means of transport and communica­ times. tions. International law, as you know, is The development of swift, efficicnt, based on two principal sources. First, and spectacular mcans of air transport customary international law-that is, the may seem to some to have reduced the practices of stales-forms precedents on value of the seas as a medium of which to build rules of conducl. commercial intercourse. The opposite is Secondly, convcntional intcrnalional true. Reliable estimates predict that law-formal agreements or trealics world seaborne trade will double every among nations-providcs wrillen guide­ 20 years for the foreseeable future. The lines for specific situations. world's present total freight costs are Prccedents becomc highly valued ancl ('stimated to be between $12 and $15 reliable sources for the rules of conduct hillion per year. Air transported cargoes between nations if based on principles now constitute less than 3 percent of of mutuality and reciprocity. 'l'hat is, international world trade, while trade in the precedents are based on mutual bulk raw materials remains almost 100 interests and recognize that any other 242 state has the right to reciprocate with times, to presume the cxistcncc of the practice established by the state circumstanccs where premature uni­ setting the precedent. The uscfulneHs of laternl action hy a state could deprive it prccedents is further enhanced if they of all futurc advantage from as yet describe the consistent prnetic,!S of mogt unr('vealed technology or p()liti,~al ('ir­ states. Such {'onsisteney of praetic,~, l:lIIm;tance and therehy limit ils ol'tiong. however, is difficult to estnblish oVl'r n For this reason, if for no other, it sm:ms bricf period of time, particularly if the that all mcmbers of the community of diverse and competitive interests of nations can best protect their interests states are in a condition of flux during through encouragement of formal, that period. This is the situation today. rcasoned agreements on somc of the Competition and diversity of interest most pressing questions now affecting have never been at such a peak as thry the freedom of the scas. have over the last dccade, and the The Geneva Conferenccs on the Law current, confused stntus of the legnl of the Sea in 195B and 1960 made rcgime of the sem; reflects thr timps. substantial gains in restating historic BI'cnusr of the npl'nrpnt growing prineipl('g mill in :tpproaI'hinp: IIt'W con­ unrdinbility of pr('eedenl as a basis for ccpts more :t)lproprillt(: to tlw timcs. future nctions, it mny b(' that the world Ypt, morc rcmains to he dOIll~ to regu­ community must now look morc to the larizc state practiecs whilc al the &\lUr. formulation of conventions and treatics timc prcserving freedom of the seas. as the best means of reestablishing order Points which arc in growing necd of within the legal regime of the seas. clarification include: Certainly, we must consider possible 1. A general agrecment on thc width courses of action along this line. of the tcrritorial sea which updates the Of course, because trcaties and con­ existing rule and which provides for the ventions opcrnte to limit future action specific protection of the interests of by signatory states as well as to define individual states as well as the general their privileges, they are very difficult to intcrests of thc world community in thc draw up. This difficulty is increased prescrvation of the wide high seas to the when the specific future intercsts of maximum extent possible. slatcs are unforcsccahle, nnd it mny be 2. A clear definition of till! rights of for this reason that we should hope that all nations to free access through multi­ such conventions or attempts at codifi­ national straits and bays. cation be as simple and as conceptual as 3. Elimination of the existing am­ possible. However, it is clear that the biguity affecting the definition of the broad interests of all maritime states can Continental Shelf. The existing conv!'n­ be well served by rcnsoned analysis of tion specifies the 200-meler line hu t thc problems affecting the freedom of also adds "or to the limit of exploit­ the gcns. In my mind they will he well ability." Despite the further test of servcd if they tend only to statc prin­ "adjacency," the real possibility for ciples rathcr thnn detailed regulations. successful exploitation of seabed re­ For those who mny bclievc thnt uni­ sources at depths well in excess of 200 Internl actions by states in this area are meters makes further clarification neces­ feasible and sufficient for now, I suggest sary. that they consider all aspects of such 4. Establishment of basic interna­ actions. In U1any cages, the Ilnilntc(al tional criteria for nlltional fishing rights actions of a state can bccome just as in the contiguous zones. binding on its own future options as a When we consider the new vistas formal multilateral treaty. Further, it is opened by technology and the resulting not unrcasonable, in thesc changing absence of appropriate historical prac- 243 tices, together with the intensifying rr:sult. No navy. can operate in a peace­ competition among nations for oceanic tillle environment wiLhout the guaran­ resourcr:s, we cannot afford to dday. teed frnedolll of manr:uver provided by Ohj('etively c1rnwn, inclusively oriented thr: concl'pt of frel'doll1 of the sr:as. inll'rtIulionul ugre('ments ur(' needed, TI\II~, it SI'I'III~ dl'ar that tlw futum and needed now. c11'veiol'lIIl'nl of the law of the seu must It is clear thut, in spile of tltcse hI! squardy hused on long-standing pn:­ compelling considcrationll which hring Cl'pts arising from the doctrine of free­ an air of urgency to the nced for dom of the seas. It may well be that the enlarged codification of the law of the specific dimensions of the sca available sea, iL will be extremely diffieulL to for the free usc of all will be reduced construct a convenLion covering ull from that of today, but the general these points. Further, if agrcement is to concept must remain the keysLone of be rea~hed on these matters, there will world maritime activity. have to be substantial adjusLment by How then can the demands of many nations, large and smull, from modl'rn soeieLy be reconciled wiLh a I'0~itions which Lhey now appcur to doctrine rooted in antiquiLy? hold. I do noL h!:lh:vc Lhes!: clemands arc Is it po~sihle thul Lite de~ircs of the inconsistenL or unaLlainable. In every ,,'orid communiLy for tlte retention of case where unilateral state nction has the concept of freedom of the seas been taken to erode the coneepL of might be inconsi!'LenL wiLh the growing freedom of the seas based on economic necessiLy for full exploitaLion of ocean reasons, an equally good ease may be resources? I bclieve not. made for compensating economic ad­ It appears Lo me Lhat if reasonable vantage to be gained from reversion to order is to be maintained in the usc of elaims of lesser dimension. For example, the oceans, then the fundamenLal con­ world shipping schedules and routes cept of freedom of the seas will provide which are not constrained hy broad the only essential basis upon which Lo territorial sea claims are certainly more continue to build Lhat order. It is clear economical and do return broad bene­ thaL the extreme opposite case, where fits to all. Also, an unwarranted exten­ I:aeh naLion mighL stake ouL unilaLeral sion of national responsibility ovcr claims to vasL ocean areas limited only ocean areas too large to police can by their ability Lo apply naLional power impose burdens on a state, burdens to enforce the claim, can lead only to which it may grow unwilling to bear in chaos, internaLional conflicL, and gross exchange for the benefits originally injustice Lo the weaker naLions. The foreseen. In other words, there appear I,:ss-dcveloped staLes of the world would to be inherent pressures toward sclf­ he douhly handicapped in such a free­ regulation built into the concept of for-all arrnngcmenL. NoL only arc Lhey freedom of the seas. Fj."om time to time, in more urgenL need of the resources of these stabilizing tendencies are slow in the sea in order to solve immediate and coming into operation. However, in the pressing problems of economics and absence of deliberate obstruction, they population, Lhey are also the least able, will operate; to elect an opposite course technologically speaking, to carry out of action is destabilizing and inevitably un efficienL exploitation of whatever contrary both to the interests of individ­ resourcl'S migh L hc (!onceded to Llwm. ual states and the community of na­ From an exclusively military, or tions. naval, poinL of view, any general aban­ Gentlemen, I have pointed out some donment of the concept of freedom of serious points of potential conflict the seas can have only one ultimate among nations, and I suggest that it is 244 not enough for us as naval officers to gional or internutional nuval convoca­ merely take note of them and then pass tions. on to problems more easily solved. Second, we should remain alert to Because of our shared heritage as profes­ detect the implications of advancing sional seamen, we should be beLler ahle marine technology as it may have an to call forward the spirit of mutual effect on freedom of the seas. understanding and cooperation needed Third, we should take whatever in­ than others whose training and profes­ dividual action we are able to encourage sional experience are based solely on the promotion of international conven­ political or diplomatic careers. The old tions which will continue the work of seaman's maxim, "one hand for yourself codifying the law of the sell, keeping and one hand for the ship" seems always in mind the view that the key­ appropriatcly parallel to the situation stone of such codes must be freedom of we face today. In the matter of freedom the seas. of the seas, our countries and our world Finally, we should beware of prac­ order each demand a hand from us if tices or declarations which promote they are to weather the squalls on the unreasoned exclusiveness without suffi­ horizon. cient regard to widcly shared interests. I suggest that there are several ae­ In conclusion, I would like to express tions we should undertake. First, we my belief that institutions such llS the should keep open the channels for Naval \V ar College llnd convocations exchange of ideas which we will estab­ such as this symposium can be of lish here this week. Perhaps you will immense value not only in promoting consider in your seminars toduy the mutual understanding through rellsoned proposition that these dialogs may be discussions, but also in helping each of continued in the future-perhaps by a us to recognize the fine balance between system of "committees of correspon­ national and international interests and dence," perhaps through regular re- their effect on freedom of the seas. ----\f1----