Freedom of Navigation: Where to Go When the Political Agenda Overshadows Legal Substance

In: Cooperation and Engagement in the Asia-Pacific Region


This paper outlines the perspectives of the United States and China in the South China Sea dispute, including their divergent legal interpretations on navigation regimes associated with the concept of freedom of navigation, and discusses the relationship between military activity and freedom of navigation. The debate on the legitimacy of military activities in a foreign country’s Exclusive Economic Zone reflects the competing interests of two groups, the user States and the coastal States inspired by the doctrine of Mare Liberum and Mare Clausum respectively. This paper compares the US Freedom of Navigation Operation Program (fonop) practice in the South China Sea and the Arctic. It raises a question: is the legal substance and function of freedom of navigation lost in translation when it has become a central point of major power competition and an instrumental role in broader strategic debates?


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