Towards a Declaration on "Navigational Rights" in the Sea-Lanes of the Asia-Pacific
Amer, Ramses, Contemporary Southeast Asia
As part of the overall process of implementing confidence-building measures (CBMs) in the Asia-Pacific region much attention has been devoted to maritime security and the need to expand and strengthen inter-state co-operation in that domain. This focus on maritime security recognizes "freedom of navigation" and other "navigational rights" as fundamental principles but has failed to properly define the terms and identify their possible contribution as CBMs in their own right. This article aims to bring these issues to the centre of attention, by investigating the rationale for the formulation of a Declaration on "navigational rights" in the sea-lanes of the Asia-Pacific(1) as a CBM.
The article is divided into three sections. The first section is devoted to examining the relevant navigational regimes according to the 1982 United Nations Convention on the Law of the Sea (UNCLOS) and how the provisions of UNCLOS might be interpreted in order to establish a definition of navigational rights which can be applied in practice. In the second section, the degree of international acceptance of navigational rights, as provided for under UNCLOS, is outlined, with a focus on the countries within the Asia-Pacific and the multilateral fora in the region, such as the Council for Security Cooperation in the Asia-Pacific (CSCAP) and the Workshops on Managing Potential Conflicts in the South China Sea. The third section discusses the advantages and problems associated with a possible declaration of "navigational rights" in the region and its contribution as a CBM within the region's overall security processes. Much of the discussion centres on the attitude towards navigational and maritime issues as expressed in declarations by the Association of Southeast Asian Nations (ASEAN), CSCAP and the Workshops on Managing Potential Conflicts in the South China Sea.
Defining "Freedom of Navigation" and "Navigational Rights": Provisions of UNCLOS
As a starting point in the search for a definition of "freedom of navigation" the text of UNCLOS will be used, originating from Article 2 of the 1958 Geneva convention, applying to the high seas. UNCLOS confirms the right of freedom of navigation on the high seas in Part VII, Section 1, Article 87.(2) Freedom of navigation is also referred to in other parts of UNCLOS but is not explicitly defined, although by implication UNCLOS adopts the definition in the 1958 Geneva convention. UNCLOS also contains sections dealing with navigation through different kinds of water areas. It is necessary to examine the three regime types of innocent passage, transit passage and archipelagic sea-lanes passage that may apply to sea-lanes in the Asia-Pacific, and to identify the navigational rights associated with each of these.
Part II, Section 3 of UNCLOS is devoted to "Innocent Passage in the Territorial Sea" and in Article 17 it is stated that "Subject to the Convention, ships of all states ... enjoy the right of innocent passage through the territorial sea".(3) In Article 18, the term "passage" is defined as the means of navigation through the territorial sea for either of two purposes: first, "traversing that sea without entering internal waters or calling at a roadstead or port facility outside internal waters", and second, "proceeding to or from internal waters or calling at such roadstead or port facility". Furthermore, the passage has to be "continuous" and "expeditious".(4) Article 19 states that to qualify as "innocent", the passage should not be "prejudicial" to the "peace, good order or security of the coastal state": in practice this applies to any activity not having a "direct" bearing on passage, among them military actions, fishing and environmental pollution.(5) Article 21 spells out the right of coastal states to adopt laws and regulations relating to innocent passage through the territorial sea.(6) However, According to Article 24, the coastal state shall not hamper innocent passage through the territorial seas and shall not impose requirements on foreign ships which in practice would deny or impair the right of innocent passage, or discriminate against ships from any particular state. …