3.3 Guarding the principle of freedom of navigation
It can be argued that UNCLOS, by codifying the maritime zones approach and thereby cementing coastal states’ claims on sovereignty over considerable parts of the oceans and substantial rights concerning the management and exploitation of the oceans’ resources, does, at least to a certain extent, favour the interest of coastal states. However, as mentioned above, the system of maritime zones defined in UNCLOS tries to balance coastal states’ interests against the interests of others, for example by conserving flag states’ privileges by limiting the coastal state’s criminal jurisdiction over acts committed on foreign flagged vessels in the territorial waters of the coastal state.(1) See Article 27 UNCLOS.
One very central interest which is dominant as a constant counterpart to coastal states’ interests in ruling over maritime spaces, is the principle of the freedom of navigation. This principle, which at its core grants a relatively unlimited right to freely navigate the oceans in a peaceful manner, without intruding on the rights of others. The freedom of navigation is clearly codified in the provisions on innocent passage in territorial waters(2) Articles 17 ff. UNCLOS. and transit passage through international straights.(3) Articles 37 ff. UNCLOS.UNCLOS attempts here to achieve basically two things: firstly, to cement the general right for everybody to freely and peacefully navigate the oceans, even though coastal waters. Secondly, it seeks to clearly define the underlying concepts of “passage” and “innocence” etc.,(4) See for example Articles 18 ff. UNCLOS. and codify a general principle of non-interference by coastal states. This system is only slightly modified in view to specific interests, such as the safety of navigation or the protection of the environment, or of underwater cables or installations. This means that coastal states can only regulate (and enforce) on specific and clearly defined issues connected to the innocent passage.(5) See Articles 21 and 22 UNCLOS, which provide an exhaustive list of possible subjects/objectives. Beyond those specifically codified issues, the principle of non-interference applies.
In conclusion, it can be argued, in relation to the concept of innocent passage etc., that UNCLOS is exhaustive, in the sense that the principle as such cannot be challenged. Conflicts in connection with innocent passage etc. between coastal states and flag states will therefore most likely be rooted in different interpretations of UNCLOS’ provisions, rather than in a lack of regulation as such. This is at least partly due to the fact that UNCLOS uses some general terminology, for example in connection with the coastal state’s right to exercise criminal jurisdiction in cases where “the crime is of a kind to disturb the peace of the country or the good order of the territorial sea”, Art. 27(1)(b) UNCLOS. The question of what is potentially able to “disturb the peace of the country” or “the good order of the territorial sea” might vary, in the view of different coastal states. Thus, wordings like those could be an invitation to further interpretation, leaving the risk of variations in interpretations and state practice.