Navigating between Scylla and Charybdis : international law, maritime security and freedom of navigation

Abstract

There has been longstanding friction between international law and international security, with the Law of the Sea being no exception. Where once, states had wide latitude to utilise freedom of the seas to engage in commerce and colonialism, such freedom is now more restricted. While freedom of navigation is imperative for global commerce, the question arises as to how such freedom can be best protected from insecurity. The research question therefore is to determine whether the tension between maritime security and freedom of navigation can be reconciled. To answer this question, this paper will analyse the legal and security framework of maritime security and freedom of navigation. Through this analyisis, the author will suggest a mechanism whereby maritime security can be improved to protect the freedom of navigation of seafaring states without compromising the sovereignty of coastal states. The Law of the Sea’s interaction with maritime security is vital in this area, particularly in relation to maritime terrorism. Relevant aspects of international law such as the UN Convention on the Law of the Sea, Convention on the Suppression of Unlawful Acts against the Safety of Maritime Navigation and the International Ship and Port Facility Security Code are reviewed. The conclusion is that absolute freedom of the seas is impractical, and regulation and enforcement are vital to ensure the safe enjoyment of freedom of navigation. Notably, supporting state maritime patrols is a key method of protecting freedom of navigation from maritime insecurity while preventing the erosion of state sovereignty.