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How free is the freedom of navigation, right to sail?

Indonesian Navy acted appropriately and lawfully in its recent response to a Chinese Coast Guard vessel spotted sailing in its waters off Natuna.

Andreas Aditya Salim (The Jakarta Post)

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Wed, January 25, 2023 Published on Jan. 24, 2023 Published on 2023-01-24T15:51:31+07:00

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A Chinese coast guard vessel draws alongside Indonesian Navy ship KRI Usman Harun as the latter moves to intercept Chinese fishing boats in Indonesia’s Exclusive Economic Zone (EEZ) in the North Natuna Sea on November 1, 2020.

T

he year 2022 concluded with a great achievement in the law of the sea, namely an agreement on an exclusive economic zone (EEZ) boundary between Indonesia and Vietnam. Unfortunately, while the international communities are celebrating it, the excitement has been tainted by the maneuvers of the China Coast Guard (CCG).

We, the Indonesia Ocean Justice Initiative, learned that the CCG 5901, the biggest ship of the CCG, was maneuvering in the North Natuna Sea close to the Tuna Block from Dec. 30, 2022 to Jan. 10, 2023. One could argue that this movement by the CCG was merely exercising its right to navigate freely in the EEZ of another state.

However, careful examination of the United Nations Convention on the Law of the Sea (UNCLOS) shows us a different line of argument.

UNCLOS stipulates that ship of all states enjoy the right to sail in the EEZ of another state.

However, it was never the drafters’ intention to place no limitations on this freedom of navigation.

First, navigation means sailing in a particular direction, not the right to sail back and forth and stop for no reason in the vicinity of a coastal state’s vital offshore project located within that state’s EEZ.

Legally speaking, it is true that unlike innocent passage and transit passage, UNCLOS is silent on the meaning of the freedom of navigation. In the absence of textual clarity, interpretations might come into play.