Defending Freedom of the Seas

July 07, 2020
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June was National Ocean Month for the United States, a time to reflect on the economic, national security, and environmental impacts of the world’s oceans on our country.  Throughout our nation's history, the oceans have served to protect our shores and facilitate our economic prosperity.  Because our national identity, wealth, and security are so inextricably linked to the oceans, safeguarding the freedom of the seas has been a long-standing imperative for the United States.  Protecting it, as well as its guarantee under customary international law, is as important today as it was in the early days of the Republic.

In a 1941 fireside chat, President Franklin D. Roosevelt assured the American people, “Generation after generation, America has battled for the general policy of the freedom of the seas.”  Presidents from both parties have reaffirmed this policy into the modern era.  The current National Security Strategy and National Defense Strategy identify open and free access to common domains as critical to the United States’ national security, but freedom of the seas affects all nations. 

The term, “freedom of the seas,” includes all of the rights, freedoms, and internationally lawful uses of the sea and airspace (including for military ships and aircraft) reflected in international law.  All of these rights, freedoms, and lawful uses of the seas are enshrined in the 1982 Law of the Sea Convention (LOSC).  This treaty contains a clear and comprehensive set of rules applicable across a global domain and is vital to stabilizing the economic and security interests of all countries, whether or not they have a coastline. 

Navigation rights and freedoms are guaranteed to all States under international law, but they are still threatened by countries that refuse to abide by the law and try to infringe on those rights and freedoms.  Some countries invoke national laws, regulations, or pronouncements that unlawfully attempt to restrict the exercise of these rights and freedoms.  Left unchallenged, these excessive maritime claims undermine international law—particularly in contested areas like the South China Sea, where the People’s Republic of China (PRC) is also depriving other nations of access to natural resources both marine life and fossil fuels.

Contrary to PRC talking points, routine regional patrols planned and conducted consistent with international law do not increase the risk of miscalculation and conflict; rather, it is the unlawful restriction of navigation rights and freedoms that heightens tensions at sea.  The PRC has mischaracterized America’s dedication to freedom of the seas as unnecessarily provocative and aggressive, warning that the United States’ freedom of navigation voyages were prone to cause “unexpected incidents.”  Following USS Mustin’s lawful freedom of navigation voyage through the South China Sea in May of this year, the PRC lashed out, accusing the United States of violating Chinese sovereignty and raising regional security risks.  The British Government faced similar censure when HMS Albion lawfully sailed through the Paracel Islands in 2018.  The PRC’s characterization of the purpose and intent of freedom of navigation voyages is not only misplaced, but it also seeks to redirect attention away from the PRC’s excessive maritime claims, several of which an international tribunal, regarding the Philippines' maritime claims, roundly rejected in 2016.  

Recognizing the importance of defending international law, as well as of peace and international order for the benefit of all countries, the United States has sustained for more than 40 years a robust Freedom of Navigation Program.  The program has two parts: U.S. Department of State outreach to protest unlawful restrictions on navigation rights and freedoms and U.S. Department of Defense freedom of navigation operations (FONOPs).  The latter involves sailing or flying in compliance with international law but in a way that challenges unlawful restrictions on navigation rights and freedoms.  FONOPs are routinely executed as peaceful, objective protests against these unlawful restrictions and do not address competing territorial sovereignty claims or maritime boundary disputes.

The U.S. Department of Defense conducts FONOPs in full conformity with international law and impartiality, regularity, and transparency around the globe.  The Freedom of Navigation Program is country-agnostic and has challenged unlawful restrictions on navigation rights and freedoms made by allies, partners, adversaries, and competitors.  In Fiscal Year 2019, the U.S. Department of Defense challenged the unlawful restrictions of more than 20 countries, often multiple times.  The U.S. Department of Defense also submits an annual report to Congress documenting FONOPs and makes those reports publicly available on the Department’s website. 

The United States is not alone in recognizing and acting on the importance of defending international law.  Many nations share our viewpoint, including some whose unlawful restrictions the United States has challenged.  We welcome and encourage other States to take a proactive and continuing role in upholding the international law of the sea by publicly protesting unlawful restrictions on navigation rights and freedoms through diplomatic channels, conducting FONOPs when feasible, or by other appropriate legal means within their capabilities.  Our rule-of-law message to offending States is more compelling when delivered, and demonstrated, in unison.

The freedom of the seas should matter to all countries—even those without maritime borders—who benefit from the economic and security dividends of upholding international law.  Countries that continue to assert the primacy of their unlawful maritime restrictions undermine the rights and freedoms that benefit all.  So long as they do, the United States will continue to champion the international law of the sea through our Freedom of Navigation Program.

David F. Lasseter is the Deputy Assistant Secretary of Defense for Countering Weapons of Mass Destruction and oversees Oceans Policy for the U.S. Department of Defense.

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