'Do As I Do, Not As I Say' - Navigational freedom and the Law of the Sea Convention

Abstract

The 1982 United Nations Convention on the Law of the Sea (LOSC) might be rightly characterised as a world charter for maritime governance. One key area where there has been ongoing dispute in the context of military activities in maritime zones is the issue of navigational rights and obligations relating to warships. This has found particular expression in the realm of the innocent passage regime through a coastal State’s territorial sea and activities that may be conducted by warships within a coastal State’s archipelagic waters and exclusive economic zone (EEZ). This chapter examines these issues in view of the provisions of the LOSC and explore the background context under which the relevant LOSC provisions were agreed. It is contended that methodologies advanced by the International Law Commission (ILC) to discern relevant State practice do assist in drawing conclusions concerning both the interpretation of treaty provisions as well as parallel rights and obligations under customary international law.