‘Do As I Do, Not As I Say’ – navigational freedom and the Law of the Sea Convention

Abstract

The Law of the Sea Convention (LOSC) was always an ambitious project. Representing a ‘package deal’ that sought to reconcile the deeply contrasting views of coastal States on the one hand and ocean-going States on the other, it was always going to be a compromise. Such compromise manifested itself in ambiguous language and the ambition of a perennial theme of ‘balance’ throughout the Convention. Recognizing the pitfalls of this structure, the drafters did seek to ameliorate potential tension by including within the Convention architecture for a compulsory dispute settlement system. Despite this overture, the large exemption accorded to military and naval activities from compulsory dispute procedures meant that reconciliation of views in this critical area needed to rely upon State practice to resolve lingering uncertainties rather than adjudicated settlement. To this end, it will be argued that there has emerged in the Asia-Pacific region over the last 20 or so years a growing convergence of attitude as to the nature of maritime navigational rights and obligations. One that does accord navigational freedom a great priority over asserted coastal State security rights. Such consensus may be located in an examination of State practice that is principally manifested in what States do, rather than in what they say. Such an assertion necessarily implicates broader theories of international law and how to value actions and reactions of States. This Chapter will argue that, despite some significant outliers, there is emerging a growing convergence of practice relating to warship navigational rights under the LOSC within the Asia-Pacific region. States may not reflect such practice in positive statements, but their actual actions and even conscious acquiescence, is sufficient to inform legal meaning.