On Freedom of Navigation

Amidst the present difficulties in transmitting knowledge from one generation of educated people to the next, one principle that seems to have been mislaid is freedom of navigation. This has been laid bare by commentary on the recent Anglo-American operations in the Red Sea against the Houthis. Hence, it is worth offering a short explanation of freedom of navigation: what it is, its history prior to its modern codified universalisation and its defences up to the present.

Before its codification by the United Nations, freedom of navigation was part of customary international law, by its nature quite distinct from how modern international law is established and enforced. It originated in the Dutch Republic’s rule of mare liberum (free seas), coined by influential Dutch jurist Hugo Grotius in 1609, which considered neutral ships and their goods inviolable on the high seas. Naturally, this could benefit trading powers like the Dutch, but came into competition with competing Consolato customs. These were named after the Aragonese Consulate of the Sea, both a body to administer maritime law and a collection of maritime ordinances codified since at least 1494. These rules determined neutral ships could be attacked in times of war to seize enemy goods, but even on enemy ships neutral goods could not be taken. By the seventeenth century, Consolato was often paired with the concept of mare clausum (closed sea), coined in 1635 by English jurist John Selden, which held that areas of the sea could be entirely closed off from foreign shipping. Both principles were supported by the major naval powers of the day, including England, France and Spain.

As was the case with a number of pivotal concepts in European history, mare liberum was often fought for over the course of the seventeenth and eighteenth centuries, first by the Dutch alone but later by the nascent American Republic and the Russian Empire as a right of neutral states. The cause of freedom of navigation was greatly assisted during this period by the Dutch victory in the Eighty Years’ War against Spain, as well as the later decline of Spain and Portugal as dominant powers who had attempted to apply mare clausum to the New World’s seas. Another conceptual innovation emerged to resolve some discrepancies between the rival customs in 1702, as Dutch jurist Cornelius van Bynkershoek formulated that maritime dominion corresponded with the distance coastal cannons could effectively protect it; the range of the most advanced cannon at the time was three nautical miles. Beyond the Dutch, naval powers still employed the Consolato principle into the nineteenth century against other countries, especially during major conflicts, but this could be superseded in treaties by freedom of navigation. Ultimately, this became the case for all European powers at the end of the Crimean War in the 1856 Declaration of Paris Respecting Maritime Law, which synthesised the two customs into a rule that enemy goods were covered by a neutral flag whilst neutral goods could not be seized on enemy ships. Arguably, this built upon the Congress of Vienna’s grant of freedom of navigation to key European rivers, which constituted multiple states’ new borders and economic arteries, at the end of the Napoleonic Wars in 1815. The exceptions to the rule outlined by the 1856 declaration were effective blockade and contraband, whereas privateering (in other words, state-sanctioned piracy) was confirmed to be abolished. As Europe proceeded to dominate the world in the nineteenth century, so too did the inviolability of neutral commercial shipping and their freedom to navigate the seas as their juridically innocent business permitted.

Of course, the growth of freedom of navigation did not result in the disappearance of piracy, nor pirate states. For instance, the United States, Sweden and Sicily fought wars against the Barbary corsairs in the early nineteenth century to ensure the freedom of their merchant ships from ransom and enslavement in the Mediterranean, despite only Sicily possessing an obvious interest in the region. In recent weeks, the Houthis have proven themselves to be another such pirate state through their rather indiscriminate attacks on commercial shipping in the Red Sea. In response, Britain and America (with support from several other countries) have attempted to neutralise this threat to freedom of navigation under Operation Prosperity Guardian. In theory, this should be the least controversial Middle Eastern intervention conducted during this century thus far, since the Houthis are plainly violating the neutrality of benign ships under neutral flags. At the time of writing, there is no hint from the intervening powers of the neoconservative adventurism which defined the wars in Iraq and Afghanistan, nor strong intentions to impose changes on Houthi internal affairs beyond the immediate issue at hand. In practice, the war in Israel has entirely toxified any discourse surrounding events in the Red Sea. Instead of realism, one witnesses what is allegedly another instalment of the clash of civilisations. Whatever the merits of Samuel Huntington’s thesis of contemporary world affairs, such hyperbolic reactions to events in the Red Sea overestimate their significance.

If America did not exist, it would be in India or China’s interest to assert freedom of navigation in the region due to its foundational importance to the global economy. Readers should bear in mind that the principle has only a tangential relationship to a nation’s trade policy. Although freedom of navigation is a precondition of free trade, it does not determine the extent to which a ship’s goods are impeded from accessing markets at port, only that the international movement of goods can occur without undue harassment. Perhaps a handful of countries at most could be expected to subsist today to a reasonable standard without substantial trade, an interesting notion in itself but beyond the scope of this article. Likewise, most, if not all, nations lack the naval strength to forcibly guarantee the security of their commercial shipping worldwide, given the sheer volume and frequency of post-containerisation international trade. This means freedom of navigation ought not only to be remembered by readers, but as a matter of historical preference and present necessity defended into the future.

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