Hastings International and Comparative Law Review


The history of U.S. maritime policy evinces the inexorable relationship between law and politics. The U.S. Freedom of Navigation (FON) program provides an excellent example of this critical relationship. Established in 1979, the FON program seeks to preserve the freedoms of navigation and overflight by sending vessels and aircraft to exercise these navigational rights in areas where coastal states have sought to restrict or prohibit such transit. It combines diplomatic action with operational challenges to assert U.S. rights under international law. The FON program is based upon the principal sources of public international law: (1) customary international law and (2) treaty law. Specifically, the rules governing the development of customary international law and the existence of ambiguous provisions in the 1982 LOS Convention require that the U.S. conduct the FON program to protect its navigational rights. This Study suggests, however, that the U.S. rationale may be criticized on both legal and normative grounds. By examining the formation and development of the FON program, this Study also seeks to acknowledge the compelling relationship between law and politics.