Jus navigandi, technically understood as the right of navigation, constitutes a fundamental prerogative within the scope of Public International Law and Maritime Law, embodying the right of vessels to transit through waters under the jurisdiction of sovereign States or on the high seas, under the aegis of the principles of freedom of navigation and free trade.
Concept and Legal Foundation
Jus navigandi is not limited to a mere faculty of physical movement; it is a complex legal institution that regulates the circulation of goods and people through aquatic spaces. Its legal nature lies in the exercise of a classic freedom of International Law, harmonized with state sovereignty. From the perspective of Maritime Law, the institution is based on the need to facilitate global trade, serving as the backbone of the Law of the Sea, as codified by the 1982 United Nations Convention on the Law of the Sea (UNCLOS).
Historical Origin and Evolution
The genesis of jus navigandi dates back to Hugo Grotius' doctrine of Mare Liberum (1609), which challenged the claims of absolute sovereignty over the oceans defended by colonial powers. The historical evolution transitions from the "closed sea" view to the "free sea" regime, culminating in the current structure of UNCLOS, which establishes distinct maritime zones (territorial sea, contiguous zone, exclusive economic zone, and high seas), each with specific gradations for the exercise of the right of navigation.
Legal Provisions and Normative Structure
In the Brazilian legal system, jus navigandi finds support in the following provisions:
- 1988 Federal Constitution: Article 20, item VI, establishes that the territorial sea is an asset of the Union, while Article 21, item XVIII, grants the Union the competence to plan and promote permanent defense against calamities, and Article 22, item X, the exclusive competence to legislate on the regime of ports and navigation.
- United Nations Convention on the Law of the Sea (UNCLOS/1982): Internalized by Decree No. 1,530/1995, which guarantees the right of "innocent passage" through the territorial sea (Art. 17).
- Law No. 9,537/1997 (LESTA): Provides for the safety of waterborne traffic in waters under national jurisdiction, regulating the practical exercise of navigation.
Practical Application and Jurisprudence
The application of jus navigandi is frequently debated in the Supreme Federal Court (STF) in constitutional review proceedings and actions involving sovereignty over the Continental Shelf. The consolidated understanding is that the right of innocent passage is not absolute and may be restricted for reasons of national security, environmental protection, or customs regulation, provided that proportionality and non-discrimination are observed.
In the scope of contemporary jurisprudence, Brazilian courts have reinforced the primacy of navigation safety, according to precedents of the Superior Court of Justice (STJ) in cases of civil liability for environmental damage resulting from maritime transport activities, where the exercise of jus navigandi does not exempt the shipowner from the obligations of full reparation (polluter-pays principle).
Related Principles and Doctrinal Divergences
Jus navigandi is closely related to the principles of freedom of trade and access to ports. Doctrinally, there is tension between the "sovereigntist" current, which advocates for greater state control over traffic in contiguous zones, and the "internationalist" current, which advocates for maximum fluidity in maritime transit for economic purposes. The current interpretation leans towards harmonization, where the exercise of the right of navigation is conditioned upon compliance with safety and marine environmental protection standards.
Contemporary Relevance
Currently, jus navigandi assumes strategic relevance in light of the exploration of energy resources on the Brazilian equatorial margin and the need to regulate traffic on autonomous navigation routes. The practical impact lies in the constant updating of the Maritime Authority's (Brazilian Navy) regulations to ensure that the right of navigation does not become a vector for transnational illicit activities, maintaining the balance between the fluidity of foreign trade and the safeguarding of state sovereignty.
Legal and Jurisprudential References
- BRAZIL. Constitution of the Federative Republic of Brazil of 1988.
- BRAZIL. Decree No. 1,530, of June 22, 1995 (Promulgates UNCLOS).
- BRAZIL. Law No. 9,537, of December 11, 1997 (LESTA).
- BRAZIL. Superior Court of Justice. Precedents on maritime civil liability and territorial sovereignty.
- GROTIUS, Hugo. Mare Liberum. 1609.
