oa Comparative and International Law Journal of Southern Africa - Freedom of navigation: an unfair competition with the economic objectives of the exclusive economic zones of African states
This article sets out to demonstrate that to construe freedom of navigation under the Law of the Sea Convention (LOSC) without due regard to the dynamics of the concept of the freedom of the seas, creates an unfair competition between the economic objectives of the Exclusive Economic Zones (EEZ) and the concept of freedom of navigation. The dynamism of the concept of the freedom of the seas here means the ability of the concept to accommodate the international community's changing use of the seas. The LOSC has set the framework within which navigation can contribute to the real economic objectives of the EEZ. In this context, navigation need only be viewed as an element or component of the broader EEZ concept, rather than as a rigid institution or part of an immutable system. A narrow interpretation of the concept of freedom of navigation would emphasise the element of freedom to the exclusion of the element of function. It would justify the exclusivity of navigation by reference to the element of freedom. This interpretation ignores the dynamic aspect of the freedom and prevents navigation fulfillinf its potential for benefiting states which are, for economic reasons, incapable of exercising the freedom. The prime example in this regard would, of course, be the states in Africa. The article argues that because freedom of navigation has ceased to be common to all, it has lost its substratum.
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