Foreign Relations of the United States, 1981–1988, Volume XLI, Global Issues II

200. National Security Decision Directive 265¹

Washington, March 16, 1987

FREEDOM OF NAVIGATION PROGRAM (C)

Since March 1979, the United States has successfully conducted a Freedom of Navigation (FON) program to protect U.S. navigation, overflight, and related interests on and over the seas against excessive maritime claims. (U)

Policy

In July 1982, the United States announced that it would not sign the Law of the Sea Convention because of several problems in the Convention’s deep seabed mining provisions. The United States does, however, support the provisions of the Law of the Sea Convention governing traditional uses of the oceans which generally confirm existing maritime law and practice and fairly balance the interests of all states. (U)

General U.S. policy on the Law of the Sea is contained in NSDD–83 (U.S. Oceans Policy, Law of the Sea, and Exclusive Economic Zone) and the public Presidential statement of March 10, 1983.² Two important aspects of those documents pertain to U.S. policy on freedom of navigation and are reflected below. (C)

First, the United States is prepared to accept and act in accordance with the balance of interests relating to traditional uses of the oceans—such as navigation and overflight. In this respect, the United States will recognize the rights of other states in the waters off their coasts, as reflected in the Convention, so long as the rights and freedoms of the United States and others under international law are recognized by such coastal states. (U)

Second, the United States will exercise and assert its navigation and overflight rights and freedoms on a worldwide basis in a manner that is consistent with the balance of interests reflected in the Convention. The United States will not, however, acquiesce in unilateral acts of other states designed to restrict the rights and freedoms of the international community in navigation and overflight and other related high seas uses. (U)

Categories of Excessive Maritime Claims

U.S. interests are to be protected against the following categories of excessive maritime claims:

1. Those historic bay/historic water claims not recognized by the United States. (U)

2. Those territorial sea baseline claims not drawn in conformance with the customary international law reflected in the Law of the Sea (LOS) Convention. (U)

3. Those territorial sea claims not exceeding twelve nautical miles in breadth that:

a. overlap straits used for international navigation and do not permit transit passage in conformance with the customary international law reflected in the LOS Convention, including submerged transit of submarines, overflight of military aircraft, and surface transit of warships/naval auxiliaries, without prior notification or authorization, and including transit in a manner of deployment consistent with the security of the forces involved; or

b. contain requirements for advance notification or authorization for innocent passage of warships/naval auxiliaries or apply discriminatory requirements to such vessels; or

c. apply special requirements, not recognized by international law, for innocent passage of nuclear-powered warships (NPW) or warships/naval auxiliaries carrying nuclear weapons or specific cargoes. (U)

4. Territorial sea claims in excess of twelve nautical miles. (U)

5. Other claims to jurisdiction over maritime areas in excess of twelve nautical miles, such as security zones, that purport to restrict non-resource related high seas freedoms. (U)

6. Those archipelagic claims that either:

a. do not permit archipelagic sea lanes passage in conformance with the customary international law reflected in the LOS Convention, including submerged passage of submarines, overflight of military aircraft, and surface transit of warships/naval auxiliaries, without prior notification or authorization, and including transit in a manner of deployment consistent with the security of the forces involved; or

b. are otherwise not in conformance with the customary international law reflected in the LOS Convention. (U)

Program Guidance

The Department of Defense will plan and administer the program under the following procedures:

• The Department of Defense will submit in advance to the Department of State and the Assistant to the President for National Security Affairs a proposed schedule for asserting U.S. rights against the following categories of excessive claims: unrecognized historic claims (paragraph 1 above), nonconforming baselines (paragraph 2 above), and territorial sea claims of twelve nautical miles or less which contain special requirements not recognized by international law (paragraphs 3.b and 3.c above). Objections to the schedule by the Department of State will be resolved by the Assistant to the President for National Security Affairs. After a reasonable number of assertions of U.S. rights against an excessive claim in any of these categories, on the recommendations of the Departments of State and Defense, the Assistant to the President for National Security Affairs may determine that advance scheduling to assert rights against these claims will no longer be required. (C)

• Except for navigation in and over international straits (including their approaches) and archipelagic sea lanes passage, when any assertion of rights against an excessive claim will result in entry into a politically sensitive area (PSA), the Department of State and the Assistant to the President for National Security Affairs will be notified of such operations prior to execution by the Department of Defense. The Department of State is responsible, in consultation with the Department of Defense, for maintaining an up-to-date list of politically-sensitive areas. (C)

• International straits (paragraph 3.a. above) and archipelagic sea lanes (paragraph 6.a. above) will be used by both military ships and aircraft freely and frequently as directed by the Department of Defense. No prior approval or PSA notification of such transits is required. (C)

• The Department of Defense will routinely assert U.S. rights against territorial sea claims, other claims to jurisdiction over maritime areas in excess of twelve nautical miles, and archipelagic claims not in conformance with the LOS Convention, (paragraphs 4, 5, and 6.b. above). No prior approval of such operations is required, although PSA operations require prior notification. (C)

• A Table summarizing the above guidance is attached as Tab 1 to this NSDD.³ (U)

• The Department of State will advise the Department of Defense and the Assistant to the President for National Security Affairs if any transient political factors in a littoral country which is not a politically sensitive area make it inadvisable for a limited time to conduct an operation under this program. (C)

• The Department of State will continue to protest in diplomatic channels the excessive claims of littoral countries. (U)

• In planning proposals for Freedom of Navigation operations which require prior interagency approval, the Department of Defense should consider the possible impact of frequent challenges upon bilateral political relations between the affected littoral nations and the United States. (C)

• Where possible, we should strive for a balanced challenge program which contests the excessive claims or illegal regimes of allied or friendly states, inimical powers, and neutral states alike. In sensitive areas, the FON program should be structured to avoid conveying the impression that the United States favors one country over another. (C)

• Special emphasis should be given to challenging claims which have no record of prior challenge. (C)

Ronald Reagan

1. Source: Reagan Library, Executive Secretariat, NSC: NSDD Records, NSDD 265 [Freedom of Navigation Program (FON)]. Confidential.
2. See Document 196.
3. Attached but not printed.