MARITIME CONTROL: NATIONAL INTERESTS WITHIN THE CONTEXT OF INTERNATIONAL LAW

INTRODUCTION

For decades, if not centuries, humanity has prided itself in, among other achievements, its ability and indeed right to navigate freely on the vast seas. This right has been consolidated by the development of charters and conventions, generally referred to as international law, which have enhanced trade connectivity and fostered economic growth worldwide. Recent global events, however, have threatened the very foundation of these rights and brought to light a fracture in international law as relates to the free use of international waters. The ongoing Strait of Hormuz and South China Sea disputes illustrate the tensions that surround international law in relation to maritime territory and pose a compelling question: should a State, in the furtherance of national interests, be allowed to impede on the right to freedom of  navigation at the expense of global utility?

The answer may not be so certain. Bearing that in mind, this article seeks to establish the undeniable role of international law in ensuring the right to freedom of navigation on international waterways while attempting to strike a delicate balance between national interests and global utility within the context of international law.

 To achieve said objective, this article sets out in section II to define maritime control and highlight the international rules that govern it. Section III sets out to understand the concepts of national interests, global utility, and answer the question on whether these said interests should be allowed to jeopardise said utility, depending heavily on comparative analysis of the South China Sea and the Strait of Hormuz disputes. Section IV gives recommendations on how the problems this article identifies could be resolved.

MARITIME CONTROL WITHIN THE CONTEXT OF INTERNATIONAL LAW

Oppenheim defined maritime control as the extent to which a State may lawfully exercise dominion and jurisdiction over adjacent seas in accordance with international law[1]. The concept of maritime control is governed by the United Nations Convention on the Law of the Sea (UNCLOS) and though not expressly defined, is implied from the various articles conferring rights on states who fulfil certain conditions to exercise jurisdiction over said maritime territory[2]. This control in modern international law entails 5 zones created by the UNCLOS: the territorial sea, contiguous zone, exclusive economic zone (EEZ), continental shelf and the area, each limiting the ability of a state to exercise jurisdiction over the bordering sea.

The convention defines the territorial sea of a state[3], which is an area not greater than 12 nautical miles off the coastline of a state. It provides for the establishment of a contiguous zone by a state measuring not more than 24 nautical miles from the coastline and granting a state the limited right to exercise jurisdiction with respect to customs, immigration, sanitary and fiscal laws[4]. It also provides for the exclusive economic zones (EEZs) of states[5] which is an area after or adjacent to the territorial waters of a coastal state measuring not more than 200 nautical miles off the coastline and granting the state various rights, especially with regard to exclusive economic exploration and exploitation, creation of artificial islands, research and environmental protection[6]. A continental shelf,  an area measuring not more than 200 nautical miles from the coastline or 350 nautical miles along the natural seabed formation, is also recognised by the convention[7]. States hold full right to research, create artificial islands, explore and exploit natural resources within this shelf, and they need not any form of active occupation or formal declaration to hold claim to the area[8]. The final zone created by UNCLOS is ‘the High Seas’[9], otherwise called ‘international waters’. No state can lay claim to this area[10] and the right of navigation by ships[11] is assured notwithstanding the country of origin[12].

The significance of this Convention cannot be overstated. It has effectively placed a limiter on the extent to which states are able to claim maritime control and exert jurisdiction over the common Seas. However, the rights provided for are also of great importance,  since it is through them that states or entities affiliated to them can carry out their activities freely and safely. The provision of the rights to innocent passage[13] and of navigation[14] by the Convention are of utmost relevance here as they set the foundation for global maritime trade and ensure the safety of vessels from different countries in territorial waters, Straits and the High Seas. By so doing, the interests of states are sufficiently covered by international law, proffering peaceful co-existence and building a system of global order while optimising the ability of each state to use its maritime domain as it sees fit, subject to international law that is.

FREEDOM OF NAVIGATION: NATIONAL INTERESTS AT THE EXPENSE OF GLOBAL UTILITY?

Defining national interests, providing clarity to the concept of global utility and expanding on freedom of navigation are essential to properly tackling the question this article seeks to answer. The absence of a consensus as to the precise definition of national interests has led to varying interpretations and varying means of achieving them. However, this article seeks to define national interests as those components that guarantee a nation’s survival and interests vis-à-vis other nations and states, motivating states to strive for their protection on the international stage[15]. National interests, in most cases, supersede all others as the courts will prioritize the survival of the state over human rights or private interests in appropriate circumstances, citing the decision of the Supreme Court in the Nigerian case of  Dukubo-Asari v FRN[16].

There is no specific definition attributable to the concept of global utility. However, for the purpose of this article, Global utility here implies the optimized networking between firms around the world, where intermediate goods or services are sourced globally to maximize economic efficiency and minimize costs.

Freedom of navigation[17] is a principle of international law based on the assertion that ships flying the flag of other sovereign states shall not suffer interference from other states when in international waters[18]. This article must point out that however similar they may be, freedom of navigation and right to innocent passage[19] are two very different concepts. The right to innocent passage, as provided in UNCLOS, entails a flagged ship’s freedom to transit through the territorial waters of a coastal state without entering the state’s internal waters or emerging from it[20]. By this, it can be reasonably implied that while the right to navigation applies to flagged ships in the High Seas free from the territorial jurisdiction of any state, right to innocent passage applies to flagged vessels traversing through the territorial waters of a state. Hence, the claim of a right to innocent passage by a ship or state implies recognition of that state’s claim to such maritime area as sovereign territory[21]. This right, however, is amplified by international law with respect to traversing through international Straits[22] where the right to transit passage is provided for. This guarantees vessels the right to transit international Straits that may be located within the territorial waters or exclusive economic zones of states, so long as it is continuous and expeditious[23], and this right cannot be suspended[24], unlike the right to innocent passage which can.

Over the years, international law has evolved to put in place compromises between states with conflicting claims, especially regarding maritime territory and jurisdiction[25]. In all these situations, global utility and the strategic interests of the contesting states have been taken into consideration. However, where the problem usually lies is in defining what the national interests of each contesting state is, and this lack of clarity oftentimes means these disputes go on longer than necessary, despite the intervention of international bodies. The question of what should take precedence between the global commons and national interests spelt out by the government of a state never seems to completely disappear, creating a vacuum that needs to be filled by the global judicial apparatus. To this end, this article explores disputes regarding claim to maritime territory and the role international law has played in defining the right of navigation and the claims of each state, with the South China Sea and the Strait of Hormuz as case studies.

THE SOUTH CHINA SEA DISPUTE AS A CASE STUDY

The South China Sea is a body of water that stretches from Southwest to northeast, between latitude 3 degrees south (Karimata Strait) between Sumatra and Kalimantan and the island of Taiwan. A waterway connecting China’s Fukien Peninsula with the northern point of Taiwan, water covers almost four million square kilometers. It serves as the main route for hundreds, if not millions, of ships involved in international import-export trade every day.

China maintains that the South China Sea is a legitimate part of China’s territory because of its historical significance to ancient dynasties[26]. According to Chinese charts, the nine-dash line includes the Paracel and Spratly Islands as part of China’s sovereign territory. China asserts ownership of the islands based on archives dating back more than 2,000 years, including ancient writings and maps used by Chinese fishermen[27]. The Philippines, however, claims the Spratly Islands as part of its territory and accuses China of violating its sovereignty by carrying out fishing activities and land reclamation projects in disputed areas, including the creation of artificial islands. The Philippines opposes China’s claims in the South China Sea, symbolized by the nine-dash line, on the grounds that it violates Philippine sovereignty and International Maritime law[28]. Other parties do exist in this dispute. For instance, Indonesia and Vietnam both claim the some south-western end of the sea as part of their exclusive economic zone(s), but for the purpose of this article, we shall focus on the two main disputants, China and the Philippines. Due to the disputing claims, the Philippines filed a lawsuit against China at the Permanent Court of Arbitration (PCA) in 2015, challenging China’s claim to the sea and inter alia seeking clarity as to whether the Spratly Islands were natural island formations or merely low tide rocks. China refused to recognise the process or participate in it, nonetheless the court carried on with proceedings

The South China Sea territorial dispute between the Philippines and China was resolved by the Permanent Court of Arbitration (PCA) on July 12, 2016. China’s extensive maritime claims in the South China Sea are not permitted under international law, according to a PCA study. Here are some highlights from the PCA decision between the Philippines and China[29]:

▪ The PCA argued that China has no legal basis for such expansive maritime territorial claims . According to the PCA, China has no reason to claim an EEZ or continental shelf in the area around the Spratly Islands.

▪ Based on their physical characteristics, the PCA also determined that several features that China claims as islands do not meet the criteria set by UNCLOS[30]. Neither the EEZ nor the continental shelf can be formed by objects such as coral reefs or uninhabitable rocks.

▪ The PCA concluded that certain Chinese efforts to convert land features into artificial islands did not result in the acquisition of additional sovereign rights over those areas. The Philippines believes that China’s reclamation and development of several Spratly Islands is a violation of their EEZ rights to utilize natural resources.

▪ Regarding the Philippines’ right to free navigation in the South China Sea, the PCA also emphasized that China has violated this right. China was found to be unlawfully blocking Philippine vessels from engaging in fishing and exploration within the Philippines’ EEZ[31]

The impact of this ruling is highly significant. By its implication, a vast majority of the South China Sea is legally recognised as international waters and is subject to the right of navigation. Beckman, commenting on the award, stated that many of the claims in the South China Sea are inconsistent with UNCLOS, and if accepted, would undermine the regime of freedom of navigation[32]. Klein adds that the South China Sea dispute highlights the ongoing importance of the law of the sea in maintaining freedom of navigation and overflight, particularly in contested maritime zones[33]. This case serves as a locus classicus of sorts for the interpretation of right of navigation and the extent to which national interests, as defined by the government of a state, can be upheld as against international law and global commons.  It provides what seems to be a clear answer to the question this article set out to tackle: whether a state, in furtherance of national interests, should be allowed to impede on the right of navigation to the detriment of global utility.

But another question comes to mind as a result: What if the maritime territory in question is, unlike the one earlier discussed, the territory of a state, for instance, a Strait? The result may be different and freedom of navigation may not be applicable. To address this question, this article explores circumstances surrounding the Strait of Hormuz and the legal provisions applicable in its case.

THE STRAIT OF HORMUZ SAGA AS A CASE STUDY

A Strait, as defined by UNCLOS, is a narrow water body used for international navigation between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone[34]. As this article highlighted earlier, the right to transit passage, which is very similar to freedom of navigation, is applicable in this instance [35]. The Strait of Hormuz is a narrow waterway between the Persian Gulf and the Gulf of Oman with its north coast bordering Iran and its south coast bordering Oman. It accounts for 20% of global oil & gas shipping.

Following the recent Iran war[36], Iran effectively blocked all transit through the strait for some time, before opening it up to selective flagged ships[37], claiming the Strait of Hormuz is part of its territorial waters and since its national interests were threatened by the US and Israel, it had every right to do so. It claims that since part of the strait is its territory, the right to innocent passage, not transit passage, applies[38]. The American perspective, however, is that the Strait is an international Strait by definition, relying on UNCLOS[39], hence Iran holds no claim to it and the right to transit passage is enforceable.

According to UNCLOS, bordering states cannot impede on the right of transit passage[40] or impose fees on vessel for passage[41], the fact that the strait may be part of sovereign territory notwithstanding. The American position that international Straits are basically international waters and that no country can claim it is not necessarily true, this article asserts, relying on  Article 34(1) which recognizes the fact that most Straits fall within the territorial waters of certain states. However, Article 34(2) limits the ability of a state to exercise jurisdiction over said maritime territory to the provisions of the Convention, meaning that International Straits, though not technically international waters, operate as such by virtue of international law.

Having established the position of the law, this article makes a informed assertion that indeed, national interests should never be allowed to impede the right to navigation in all its forms to the detriment of global commons. A position otherwise would degrade the value of international law and promote destabilisation across the globe. The essence of international law is to promote justice, thereby fostering growth and connectedness. A construing of its provisions that erases such consideration is fundamentally wrong at best, this article posits. As Seller eloquently puts it, “the purpose of international law is to advance and maintain justice and that it only has value to the extent that it actually does advance and maintain justice in fact”.[42]

RECOMMENDATIONS

Having established the necessity of freedom of navigation to the global commons, as well as the position of the international law regarding the vague national interests of states exemplified in the case studies earlier examined, this article seeks to make two recommendations regarding the future of the freedom of navigation globally

ADHERENCE TO INTERNATIONAL LAW

This article asserts that for the benefit of justice and global utility, international law should be adhered to by all states. The of hostility of China in the South China Sea despite the PCA 2016 award and Iran’s continuous attempts to leverage the Strait of Hormuz for its interests are contrary to the provisions of International law and should be halted at once in the interest of the global community.

CREATION OF EFFECTIVE MECHANISMS FOR THE ENFORCEMENT OF SAID LAW

There’s no point creating laws if proper enforcement mechanisms are not available to ensure compliance. Existing enforcement mechanisms of international law are too decentralized and ineffective. States should be willing to come together to institute multinational forces or standard agencies specifically for handling enforcement of such laws, including international maritime law.

DIPLOMACY AS THE BACKBONE

International law is a product of diplomacy, and diplomacy entails compromises among in order to foster collective interests. So far, it has made remarkable achievements in the promotion of human rights and economic growth among nations. Hostilities, however, erupt where diplomacy is absent, hence undermining a fundamental goal of international law, which is to promote peace among the nations of the world. States should, therefore, attempt to settle disputes and reach compromises that would benefit all concerned and the global community at large.

CONCLUSION

Freedom of navigation is an essential feature of the modern global economy and one of the many benefits of international law. However, the interests of individual states, oftentimes unclear, tend to interfere with this right, at the expense of global utility. In an era of globalisation, such interests must never be seen to overtake those of the international community, and international law must be seen to uphold this principle. A conception otherwise risks reflecting hegemony rather than global justice[43]

REFERENCE(S):

CASES

Dokubo-Asari v Federal Republic of Nigeria (2006) NWLR (Pt. 1048) 320 (SC)

Corfu Channel Case (United Kingdom v Albania) (Merits) [1949] ICJ Rep 4

The South China Sea Arbitration (Philippines v China) (Award, 12 July 2016) PCA Case No 2013-19

STATUTE/CONVENTION

United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3

OTHER AUTHORITIES

Lassa Oppenheim, International Law: A Treatise (Vol I, Longmans Green 1905).

Piri, ‘Vital National Interests and International Law’ (2025)

Wikipedia https://en.wikipedia.org/freedom-of-navigation Assessed 15 April 2026

 C.C. Situmorang, Joko Setiyono ‘Dispute analysis of the South China Sea based on an International Legal Perspective’ (International Journal of Law,2024) Vol 10 pg 194-197

  JN Mak, ‘The Law of the Sea after UNCLOS: Implications for the South China Sea Disputes’ in Asnani Usman and Rizal Sukma (eds), Konflik Laut China Selatan: Tantangan Bagi ASEAN (Centre for Strategic and International Studies (CSIS) 1997)

Robert Beckman, ‘The UN Convention on the Law of the Sea and the Maritime Disputes in the South China Sea’ (2013) 107 American Journal of International Law 142.

Natalie Klein, Maritime Security and the Law of the Sea (OUP 2011).

Elizabeth Mendelhall ‘Strait of Hormuz: Why the US and Iran are sailing in very different legal waters’ (2026) https://theconversation.com/strait-of-hormuz-why-the-us-and-iran-are-sailing-in-very-different-legal-waters-280557?utm_medium=article_clipboard_share&utm_source=theconversation.com Assessed 16 April 2026

One Big Reason Ships And Insurers Are Unwilling to Risk the Strait of Hormuz’ (CNBC,2026) https://www.cnbc.com/2026/03/09/one-big-reason-ships-and-insurers-are-unwilling-to-risk-strait-of-hormuz.html  Assessed 13 April 2026

Mortimer Sellers, ‘The Purpose of International Law is Justice-and International Law Has No Value Until It Does So’ (Scholar Works@University of Baltimore School of Law, 2017) https://scholarworks.law.ubalt.edu/all_fac

[1] Lassa Oppenheim, International Law: A Treatise (Vol I, Longmans Green 1905).

[2] Articles 1, 2, 3, 8   United Nations Convention on the Law of the Sea (UNCLOS) 1982

[3] Article 3 UNCLOS 1982

[4] Article 33

[5] Article 55

[6] Articles 55-60

[7] Article 76

[8] Article 77

[9] Article 86

[10] Article 89

[11] Article 90

[12] Article 91

[13] Article 17

[14] Article 90

[15] H. Piri,   ‘Vital National Interests and International Law’   (2025)

[16]  (2006) NWLR (Pt. 1048) 320 (SC)

[17] Article 87

[18] Wikipedia https://en.wikipedia.org/freedom-of-navigation Assessed 15 April 2026

[19] Article 17

[20]  Kari Hakapää ‘Innocent passage’  Max Planck Encyclopaedia for Public International Law(MPEIL); Oxford Public International Law 2013 https://opil.ouplaw.com/2013/innocent-passage Assessed 14 April 2026

[21] Peter Walker,  ‘What is Innocent Passage?’ ‘Role of International Law and Evolving Ocean Law’ International Law Studies  Vol 61

[22] Article 38

[23] Article 38(2)

[24] Article 44

[25] For instance, the Corfu Channel Case (United Kingdom v Albania) (Merits)(1949) ICJ Rep 4

[26]C.C. Situmorang, Joko Setiyono ‘Dispute analysis of the South China Sea based on an International Legal Perspective’ (International Journal of Law,2024) Vol 10 pg 194-197

[27] JN Mak, ‘The Law of the Sea after UNCLOS: Implications for the South China Sea Disputes’ in Asnani Usman and Rizal Sukma (eds), Konflik Laut China Selatan: Tantangan Bagi ASEAN (Centre for Strategic and International Studies (CSIS) 1997)

[28] Ibid

[29] The South China Sea Arbitration (Philippines v China) (Award, 12 July 2016) PCA Case No 2013-19

[30] Article 121

[31] 4. Ibid.28

[32] Robert Beckman, ‘The UN Convention on the Law of the Sea and the Maritime Disputes in the South China Sea’ (2013) 107 American Journal of International Law 142.

[33] Natalie Klein, Maritime Security and the Law of the Sea (OUP 2011).

[34] Article 37

[35] Ibid 22

[36] 2026 US Special Combat Operation “Epic Fury”

[37]‘One Big Reason Ships And Insurers Are Unwilling to Risk the Strait of Hormuz’ (CNBC,2026) https://www.cnbc.com/2026/03/09/one-big-reason-ships-and-insurers-are-unwilling-to-risk-strait-of-hormuz.html  Assessed 13 April 2026

[38] Elizabeth Mendelhall ‘Strait of Hormuz: Why the US and Iran are sailing in very different legal waters’ (2026) https://theconversation.com/strait-of-hormuz-why-the-us-and-iran-are-sailing-in-very-different-legal-waters-280557?utm_medium=article_clipboard_share&utm_source=theconversation.com Assessed 16 April 2026

[39] Ibid.22

[40] Ibid.44

[41] Article 42(2)

[42] Mortimer Sellers, ‘The Purpose of International Law is Justice-and International Law Has No Value Until It Does So’ (Scholar Works@University of Baltimore School of Law, 2017) https://scholarworks.law.ubalt.edu/all_fac

[43] Juan Pablo Scarfi ‘Should International Law Reflect the Values of the International Community? ‘(OUP Blog, 2017) https://blog.oup.com/2017/04/iinternationallaw-values-community/ Assessed 16 April 2026