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The Free Sea: The American Fight for Freedom of Navigation. By James Kraska and Raul Pedrozo. Annapolis, Maryland: Naval Institute Press, 2018. Pp. xvii, 395. Index.
Published online by Cambridge University Press: 16 April 2020
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References
1 United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 UNTS 3 (hereinafter UNCLOS).
2 The authors assert that “peacetime freedom of the seas and wartime neutral rights were, for the first time, intermixed” in President Wilson's speech on January 22, 1917 calling for freedom of the seas (p. 85). It is not entirely clear what the intended import of this statement is. The authors readily acknowledge that the principle of the freedom of the seas took root centuries earlier (pp. 4, 272). The Barbary Wars were an effort to defend peacetime freedom of navigation from predation.
3 See Craig Forcese, Destroying the Caroline: The Frontier Raid that Reshaped the Right to War (2018), reviewed by Tom Dannenbaum at 113 AJIL 862 (2019).
4 Their citations are to basic Navy and Defense Department guidance that sets forth and elaborates on the classic self-defense requirements of necessity and proportionality (p. 334 nn. 81–82). See U.S. Navy, The Commander's Handbook on the Law of Naval Operations, NWP 1–14M, at 4–3, para. 4.4.1 (2007); Chairman of the Joint Chiefs of Staff Instruction, Standing Rules of Engagement for US Forces, CJCSI 3121.01B, Enclosure A, at 1–3, para. 4(a) (June 13, 2005).
5 Alabama Claims (U.S./Gr. Brit.), Award (Sept. 14, 1872), 29 RIAA 125 (2012); Rights of Jurisdiction of United States in the Bering's Sea and the Preservation of Fur Seals (U.S./U.K.), Award (Aug. 15, 1893), 28 RIAA 263 (2007). The fact that the fur seal arbitration was not about navigation may in itself account for its exclusion, although the law of the sea at the time did not make the kinds of distinctions between classic high seas freedoms that characterize the mixture of coastal state jurisdiction over resource activities and high seas freedoms of navigation and overflight in the modern regime of the exclusive economic zone.
6 The South China Sea Arbitration (Phil. v. China), PCA Case No. 2013–19, Award (July 12, 2016) (hereinafter South China Sea Award). See Reed, Lucy & Wong, Kenneth, Marine Entitlements in the South China Sea: The Arbitration Between the Philippines and China, 110 AJIL 746 (2016)CrossRefGoogle Scholar; Symposium on the South China Sea Arbitration, 110 AJIL Unbound 263 (2016); see also Agora: The South China Sea, 107 AJIL 95 (2013).
7 This may in part reflect the authors’ negative reaction to certain decisions of the International Court of Justice (ICJ) addressing the use of force, including the Oil Platforms case (p. 222). Oil Platforms (Iran v. U.S.), Judgment, 2003 ICJ Rep. 161 (Nov. 6). UNCLOS was not the basis for the ICJ's jurisdiction in those cases. UNCLOS was however the basis for jurisdiction in the South China Sea arbitration; the award rejected jurisdiction over one of the claims on grounds of the military activities exception to jurisdiction in UNCLOS Article 298. South China Sea Award, supra note 6, para. 1161. See Lori Fisler Damrosch, Military Activities in the UNCLOS Compulsory Dispute Settlement System: Implications of the South China Sea Arbitration for U.S. Ratification of UNCLOS, 110 AJIL Unbound 273 (2016).
8 As identified in the chapter headings: The Gulf of Tonkin Incident (1964), The USS Pueblo Incident (1968), The SS Mayaguez Incident (1975), Gulf of Sidra (1941–89), The Persian Gulf (1980–88), The Black Sea Bumping Incident (1988), and Freedom of Navigation with Chinese Characteristics (2001–Present).
9 Actions taken by the parties in naval war zones declared during the armed conflict that followed Iraq's invasion of Iran in 1980 might be viewed as an exception in some respects (see p. 201).
10 The utility of such an additional option was a significant factor in the decision of the United States to press from the outset for inclusion of compulsory jurisdiction as an integral part of UNCLOS. See John R. Stevenson & Oxman, Bernard H., The Preparations for the Law of the Sea Conference, 68 AJIL 1, 31 (1974)Google Scholar.
11 The area of a circle with a radius of twelve nautical miles is 452 square nautical miles, 599 square statute miles, or 1,552 square kilometers. That is nearly twice the total land area of the five boroughs comprising New York City. See U.S. Census Bureau, Quick Facts: New York City, NY, at https://www.census.gov/quickfacts/fact/table/newyorkcitynewyork,US/PST045219.
12 Article 5 of UNCLOS states, “Except where otherwise provided in this Convention, the normal baseline for measuring the breadth of the territorial sea is the low-water line along the coast as marked on large-scale charts officially recognized by the coastal State.” The markings to which Article 5 refers are part of the nautical chart itself, which depicts physical features important for mariners. These markings serve to illustrate the location of a legal baseline where the latter is coterminous with the physical feature shown on the chart.
13 The list of legal baselines that Article 16 of UNCLOS requires be drawn as such on charts of adequate scale or identified by coordinates refers only to straight lines drawn between points on the low-water line. Article 5 is not included in the list.
14 South China Sea Award, supra note 6, paras. 573–76.
15 2016 Digest of United States Practice in International Law 520, 522 (diplomatic note to China, Dec. 28), available at https://www.state.gov/wp-content/uploads/2019/05/2016-Digest-United-States.pdf (hereinafter 2016 Digest); U.S. Department of State, Straight Baseline Claim: China, Limits in the Seas, No. 117, at 8 (1996) (appended to note), available at https://2009-2017.state.gov/documents/organization/57692.pdf.
16 See U.S. Department of State, China: Maritime Claims in the South China Sea, Limits in the Seas, No. 143, at 11, n. 25 (1996), available at https://www.state.gov/wp-content/uploads/2019/10/LIS-143.pdf; see also 2016 Digest, supra note 15, at 522.
17 In response to Australia's submission to the Commission on the Limits of the Continental Shelf, the United States transmitted a diplomatic note to the UN secretary-general on December 3, 2004 recalling Article IV of the Antarctic Treaty and stating that “the United States does not recognize any State's claim to territory in Antarctica and consequently does not recognize any State's rights over the seabed and subsoil of the submarine areas beyond and adjacent to the continent of Antarctica.” See United States Mission to the United Nations, New York, Diplomatic Note, Dec. 3, 2004, available at https://www.un.org/Depts/los/clcs_new/submissions_files/aus04/clcs_03_2004_los_usatext.pdf; Antarctic Treaty Art. 4, Dec. 1, 1959, 12 UST 794, TIAS No. 4780, 402 UNTS 71.
18 Accord Oxman, Bernard H., The Regime of Warships Under the United Nations Convention on the Law of the Sea, 24 Va. J. Int'l L. 809, 845–47 (1984)Google Scholar.
19 President Reagan's 1983 statement on U.S. oceans policy specifies that within the U.S. EEZ “all nations will continue to enjoy the high seas rights and freedoms that are not resource related, including the freedoms of navigation and overflight.” The statement does not, as the authors might be understood to suggest (p. 276), condition U.S. recognition of foreign states’ navigation rights and freedoms off the U.S. coast on their recognition of U.S. rights and freedoms off their coasts. The statement, quoted in the book, asserts that “the United States will recognize the rights of other states in the waters off their coasts, as reflected in [UNCLOS], so long as the rights and freedoms of the United States and others are recognized by such coastal states” (p. 274) (emphasis added). Statement by the President, United States Oceans Policy, 19 Weekly Comp. Pres. Docs. 383 (Mar. 10, 1983).
20 See Oxman, John R. Stevenson & Bernard H., The Future of the United Nations Convention on the Law of the Sea, 88 AJIL 488, 492 n. 7 (1994)Google Scholar (“Geography alone determines that few foreign states need to navigate past the U.S. coast to reach destinations outside the United States.”).