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:<tnl Lm'1!(' and 1\()wI'rful IInl ions ahl iI) s will state or contrary to existing law. This is r!'lain thl' ('npacity to defend 11"'ir own as it :::hould be, from onr point of vicw interests through pl'rsml~iw dil'lomalit', as naval officers, for without such a economic or militury pressures. The right, the operations of naval forces entire thrust of the development in would be greatly hampcred, while com­ human society of a rule of law appli­ mercial opemtions might become eco­ cable to individuals and states alike has nomically impossible. been to provide protection for the w('ak Although we must be concerned by against the depredations of the strong. any reduction of the freedom of the I\lost of the recent developments seas, there arc reasonable grounds for have been directly attributable to the encouraging the continued development accelerating pace of technological of the international 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.