The origins and principles of Freedom of the Seas

Freedom of the seas was not a new concept when it was ultimately codified in international law in the 19th century. Freedom of navigation, laying of undersea cables and pipelines, and fishing are all recognised under Freedom of the Seas. International law has increasingly evolved to recognise and allow for the need for greater security, maritime protections and conservation areas, and access to major trade routes.

The inaugural 1958 United Nations Conference on the Law of the Sea (UNCLOS) in Geneva was mired in conflicting agendas, with states battling over what constituted territorial sea areas belonging to sovereign nations. Two more conferences took place in 1960 and 1973, failing to come to clear and comprehensive resolutions. However, between 1973 and 1982, UNCLOS clarified the international treaty providing comprehensive legislation around maritime activities. UNCLOS (also known as the Law of the Sea Convention or the Law of the Sea Treaty) has been ratified by 169 states and the European Union as of October 2024.  Under Article 87(1) of UNCLOS, it states: “the high seas are open to all states, whether coastal or land-locked”, permitting freedoms including the laying of submarine cables, overflight and navigation, building artificial islands, fishing, and scientific research.

LSJ sought the expertise of Donald R Rothwell, Professor of International Law at the ANU College of Law. His research has a specific focus on law of the sea, law of the polar regions, and implementation of international law within Australia. Rothwell has authored, co-authored or co-edited 28 books including Islands and International Law (2022), The International Law of the Sea 3rd Edition (2023) and The Oxford Handbook of the Law of the Sea (2015).

He says, “Freedom of the seas originally encompassed absolute freedoms to engage in multiple activities of which navigation and fishing were the most significant. As the law of the sea has developed and evolved, those freedoms have become subject to more and more constraints. By way of example, the freedom of navigation does not extend to the freedom of ships to pollute. The freedom of fish is now subject to very extensive constraints such that even on the high seas fishing can be subject to certain forms of regulation.”

Exclusive Economic Zones (EEZs)

Fundamentally, the concept of an exclusive economic zone (EEZ) was determined as a means of resolving disputes between countries over issues such as fishing, conducting scientific research, flyover rights, security breaches and laying of undersea pipes. Coastal states hold sovereign jurisdiction within boundary waters. Within the EEZ area, up to 200 nautical miles (one nautical mile is internationally defined as 1.852 kilometres) from their coastlines, the coastal nation has sole rights over all natural resources, but foreign nations have the freedom of navigation and overflight, subject to the regulation of the coastal states. Foreign states are also free to lay submarine pipes and cables.

Where countries cannot agree on the boundaries of their EEZ – 370 km from the baseline or coastal shore – either the International Court of Justice or an arbitration tribunal makes a determination. Larger coastal territories claim significant territory as a result of EEZs, with the US claiming one of the biggest at approximately 11.7 square kilometres. China has been in numerous disputes over its boundaries, especially with Japan in regard to lucrative natural gas resources and fishing, and the US in relation to conducting military reconnaissance activities in the Chinese EEZ. Any area outside of the EEZs is considered the high seas, governed by maritime law.

Rothwell explains, “The EEZ extends from the 12M to the 200M limit and is an area of coastal state jurisdiction and resource management. The freedom of navigation extends over the EEZ. Foreign ships can therefore pass over the EEZ without interference. Multiple treaties apply in the EEZ such as those dealing with marine pollution and, of course, fishing.”

Australia’s Maritime Jurisdiction

According to Geoscience Australia, the Australian continent covers about 7.7 million square kilometres.

The territories of Australia include 12,000 islands inclusive of the Australian Antarctic Territory, Christmas Island, the Cocos (Keeling) Islands, Heard and McDonald Islands, Norfolk Island, the Coral Sea Islands and Ashmore and Cartier Islands. UNCLOS has allowed Australia jurisdiction over tracts of the ocean and seafloor that surround those islands.

Australia has an EEZ that extends beyond the 12 nautical mile territorial sea to a distance of 200 nautical miles in most places. The EEZ gives jurisdiction over a marine area of some 10 million square kilometres. In some places, Australia’s continental margin extends further out than the 200 nautical mile limit.

For those seeking the most recent maps detailing Australia’s maritime jurisdiction, Geoscience Australia provides online and print maps providing a schematic view of Australia’s maritime zones, and a series of 28 electronic maps which depict Australia’s Maritime Jurisdiction.

The maps are a collaborative effort with the Attorney General’s Department and the Department of Foreign Affairs and Trade (DFAT) to illustrate Australia’s maritime limits in accordance with international treaties.

The most recent maps result from maritime limits and zones are derived from the Australian Maritime Boundaries (2014) digital data. The maps were also modified as a result of the treaty between Australia and the Democratic Republic of Timor-Leste establishing their maritime boundaries in the Timor Sea, which came into force in August 2019. The treaty establishes permanent maritime boundaries between the two countries and a stable legal framework for the development of gas and oil resources in the Timor Sea.

Australia’s Offshore Constitutional Settlement

The Commonwealth, the states, and the Northern Territory have agreed upon an arrangement called the ‘Offshore Constitutional Settlement’, in respect of Commonwealth, State and Northern Territory jurisdiction in the waters to the edge of the territorial sea.

The agreement stems from negotiations following the 1975 High Court determination in the Seas and Submerged Lands Case that the Commonwealth has sovereignty over waters to the edge of the territorial sea, including the seabed beneath these waters.

Consequently, the Commonwealth and the states undertook negotiations resulting in the Offshore Constitutional Settlement’ which deals with Commonwealth and state jurisdiction in the waters to the edge of the territorial sea. According to the Attorney General’s department, “The settlement also includes arrangements on managing oil, gas and other seabed minerals, the Great Barrier Reef Marine Park, other marine parks, historic shipwrecks, shipping, marine pollution and fishing. In general, the states have responsibility for areas up to three nautical miles from the territorial sea baseline, which are termed ‘coastal waters’.

“The settlement is not set out in one single document but is found in the legislation that implements it. The legislation generally extends the arrangements to the Northern Territory.”

The suite of legislation linked to the Settlement include the Sea and Submerged Lands Act 1973, Coastal Waters (State Powers) Act 1980, Coastal Waters (State Title) Act 1980, Coastal Waters (Northern Territory Powers) Act 1980, and the Coastal Waters (Northern Territory Title) Act 1980.

As recently as 2023, one major flaw in international maritime law was addressed: if everyone has access to the high seas, but nobody owns it, then who is responsible for care of its biodiversity? The UN High Seas Treaty was passed in March 2023 – officially known as the International legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction.

This treaty enables the creation of a network of marine protected areas for the purpose of protecting, preserving, restoring and maintaining biodiversity and ecosystems in alignment with the UN campaign to protect 30 per cent of the ocean by 2030.

The treaty also requires countries to conduct Environmental Impact Assessments (EIAs) on planned marine activities (such as deep sea mining or laying cables) before they are authorised.

Contested EEZs in the South China Sea

China has steadily been building and militarising artificial islands in the interests of increasing its EEZs. While other Asian nations have been doing the same in retaliation, their claim on the South China Sea remains a mere fraction of China’s.

According to the Asia Maritime Transparency Initiative, an initiative of the Washington-based Center for Strategic and International Studies (CSIS), China presently has 20 outposts in the Paracel Islands, 7 in the Spratlys, and it maintains control of Scarborough Shoal, which it seized in 2012. China has been dredging and artificial island-building in the Spratlys since 2013, creating 3,200 acres of additional land.

Rothwell says, “The Philippines contested China’s artificial island-building through dispute resolution under the Convention. China refused to accept the 2016 decision, which ruled in favour of the Philippines. There has been no evident change in China’s behaviour following that decision. However, countries like the US and Australia refuse to accept the legitimacy of China’s position, and especially China’s building of artificial islands as having changed the geographical dynamics of the region. For example, artificial islands cannot generate a maritime zone such as a territorial sea and accordingly cannot be the basis for the regulation of navigation adjacent to an artificial island.”

FONOPs send mixed messages

Rothwell says, “The US is not a party to the Convention, but asserts that the Convention is part of customary international law. That position has merit, but it is not totally without controversy. My view is that much of the Convention does reflect customary international law, but not all parts. By not being a party to the Convention, the US is exempt from the compulsory dispute resolution provisions of the Convention.”

In April this year, Kim Heriot-Darragh, Research and Policy Fellow at the Perth USAsia Centre wrote for the Lowy Institute that “The Freedom of Navigation Operations (FONOPs) program run by the US Department of Defense has become a symbol of China-US naval competition and of the West’s advocacy for a rules-based order. Operational assertions are thrust into the limelight whenever China responds to one. And barely any US statement goes by without reference to freedom of navigation and global norms.

“That’s a problem. FONOPs were only ever meant to uphold narrow principles with select audiences in mind. Those principles uphold the right of all navies to operate in the world’s waters unimpeded.”

Of the public and media perception of these operations, Heriot-Darragh supposed, “When America reaches out to touch their maritime zones from the other side of the world, it can appear targeted – not routine.”

“Indo-Pacific states have good historic reasons to be cautious about external powers. Their perceptions of US foreign and strategic policy are shaped by their strong focus on practical issues – as well as diverse cultural assumptions about law’s role in strategy and national power. Advocating a rules-based order requires clarity about exactly what rules America is promoting – and a willingness to consider whether the message is landing with important audiences.

“FONOPs should be about more than ticking legal boxes. They are an opportunity for America to persuade, not just assert.”