THE LAW OF THE SEA

THE HIGH SEAS - GENERAL

Section: Part VII, Articles 86-120

Full text with footnotes

Beyond the limits of national jurisdiction, the water column and the air space above the oceans are governed by the regime of the high seas. When coastal states have established exclusive economic zones - and that is already (or will in future be) the rule - the high seas are the ocean space beyond the 200 nautical mile limit of this zone.

The high seas are to be open and freely available for use by all states, regardless of their location Their use is to be governed by the principle of equal rights for all . No state may validly purport to subject any part of the high seas to its sovereignty; in agreeing to the Convention, all states acknowledge that these oceans are reserved for peaceful purposes. These are, after all, merely the logical consequences of the Convention's aim to maintain peace, justice, and progress for all people of the world.

Within this context, the regime of the high seas is based on the freedom to use the oceans. In exercising its right of use of the high seas, no state may interfere with the justified and equal interests of other states or act in a manner which would constitute an abuse of the rights recognized by the Convention. States are also to respect the activities on the sea-bed in the Area, which are managed by the Sea-Bed Authority in the interests of mankind as a whole . A similar attitude shall be required from coastal states undertaking activities on the "outer shelf," and the coastal state is to avoid any unjustified interference with the rights of other states.

The Convention establishes freedom of activity in six general fields: (1) navigation, (2) overflight, (3) laying of cables and pipelines, (4) artificial islands and installations, (5) fishing, and (6) marine scientific research. This is not intended as a conclusive list, nor does this listing in any way prejudice possible rights of coastal states.

Freedom of navigation is of utmost importance for all, for the shipping community and naval forces as well as for the fishing industries and marine scientific research. Every state has the right to sail ships and participate in navigation by granting its nationality to vessels which are registered with the state and which fly its flag. Such flag states have the right and duty to exercise their exclusive jurisdiction on ships on the high seas. This includes administrative, technical, social, and pollution matters. Other states are generally excluded from exercising any jurisdiction, e.g., penal, disciplinary, arrest, or detention matters in collision cases, although there are exceptions; furthermore, there are activities generally considered reprehensible (see following pages). Government-owned non-commercial vessels and warships are under no circumstances subject to the jurisdiction of other states.

For the use of artificial installations in and airplanes over the high seas, the Convention provides only regulatory provisions in respect to scientific research and pollution. For these freedoms and those of fishing, cables, and pipelines, see Further Readings.

THE HIGH SEAS

Section: Part VII, Articles 86-120

I.GENERAL PRINCIPLES

(1)Justice and equal rights for all (Preamble) to be exercised in good faith and with no abuse of rights of others (Article 300)

(2)Freedom of all types of activities (Article 87, Paragraph 1) with due regard for the interests of other states

(3)Reserved for peaceful purposes (Article 88)

(4)State sovereignty over any part of the high seas is excluded (Article 89)

II. PARTICULAR FREEDOMS

Reprint from 1988 Edition

List of Freedoms (Article 87)

Regulations governing the high seas

Navigation

Basics

1) Nationality of Vessels; Article 91

2) Vessels in service of international organizations. Article 93,

Annex IX

3) Warships, etc : Articles 95, 96

Jurisdiction

1) Exclusive jurisdiction; flag stage. Article 92

2) Administrative, technical, social; flag state. Article 94, Paragraphs 1-5

3) Collisians on the high seas

- Inquiry each state. Article 94, Paragraph 7; cooperation

with flag state "

- Penal jurisdiction; to this effect, disciplinary, arrest,

detention; flag state. Article 97

4) Pollution; flag state. Articles 192, 194, 211, 217

5) Pollution, port state. Articles 218, 232 (flag state; Article228)

6) International offences; other states, Articles 99-110

Other items: Search and rescue service by coastal states;

Article 98, Paragraph 2; Render assistance; Article 98; Hot

pursuit. Article 111; Civil pollution claims; Article 229

Overflight

Pollution; state of registry. Articles 212, 222

Submarines cables and pipelines

1) Subject to Part VI (Continental Shelf); Article 87

2) General right; Article 112

3) Liability for damage; Articles 113-114; Indemnity for loss

incurred avoiding damage; Article 115

1) In accordance with international law; Article 87

2) Subject to Part VI (Continental Shelf); Article 87

3) For scientific research in general; Articles 258-262; In the

Area; Articles 143, 256

Construction of artificial islands

Articles 116-120

Fishing

1) Subject to Part VI (Continental Shelf); Article 87

2) Subject to Part XIII (Marine Scientific Research); Article 87

3) Scientific research in the Area; Article 143

4) Development and transfer of marine technology; Part XIV

Scientific research

THE FLAG STATE'S OBLIGATIONS FOR MERCHANT VESSELS

Section: Part VII, Articles 86-120

Every state has the right to have a merchant fleet under its flag, and the vessels in this fleet are entitled to use the high seas. But this right is coupled with obligations. As there is no sovereign authority of a state or other agency to maintain law and order on the high seas, there must be some tie to the jurisdiction of a state. According to common international law, which is confirmed by the Convention, the flag state in general exercises exclusive jurisdiction over a vessel on the high seas. The Convention's provisions are part of a complicated network of public international laws, rules, and regulations, but they also represents the general rules which serve as basic principles for the entire network of international public law of the sea.

The flag state's initial obligation is to maintain a registry of all ships entitled to fly its flag and to issue documents to this effect to such ships. As a result of this procedure, the ship has the nationality of the country whose flag it flies. However, states are permitted to grant their nationality to vessels only when there is a "genuine link" between vessel and state, a term not defined by the Convention, but which is to be interpreted as a strong economic tie between nationals of the flag state and the vessel with regard to ownership, management, and manning of the ship. In order to prevent changes of flag for convenience, vessels sailing under the flags of two or more states may be assimilated to a ship without nationality.

Upon registering the vessel, the flag state must ensure that the ship complies with international safety standards. It must exercise its jurisdiction and control in administrative, technical, and social matters over vessels flying its flag. A broad listing of measures to be taken would include construction of equipment, seaworthiness, manning, labour conditions, training of crew, means of communication, prevention of collisions, and regulations and inspections. In taking these measures, the state is obliged to conform to generally accepted international regulations, procedure, and practice, which means for all practical purposes applying IMO (International Maritime Organization) and ILO (International Labour Organization) conventions and standards. Where there are clear grounds for believing that proper Jurisdiction and control are not being exercised over a ship, other states may report the facts to the flag state.

In cases of collision or incident on the high seas involving loss of life or serious injury or serious damage, other states may cause an inquiry to be held, although penal or disciplinary procedures remain basically under the jurisdiction of the flag state as does also the right to arrest or detain vessels in such cases (e.g., for penal or investigative purposes). The flag state and the other state are to co-operate in the conduct of any inquiry. It should be emphasized that the regulations of the Convention do not affect private law and civil claims and rights, e.g., application in court for arrest of a ship arising from a claim for compensation for damages caused by the ship.

Finally, the flag state must require masters of vessels of its nationality to render assistance to any person in danger of being lost or in distress in so far as this can be done without serious danger to his own ship. In the case of involvement in a collision, assistance to the other ship is to be provided.

VESSELS

Section: Part VII, Articles 86-120

Issue

Flag State Obligations - Merchant Vessels

Other Circumstances

Jurisdiction

General

Vessels are subject to exclusive jurisdiction of flag

state on the high seas (Article 92, Paragraph 1)

(For pollution measures in general, see Articles

194, Subparagraph 3(b); 211; 217)

Particular

Hag state required to assume jurisdiction under

its internal law with respect to administrative,

technical, and social matters

Collision incidents on the high seas

- In respect to penal jurisdiction: arrest/

detention flag state (Article 97, Paragraph 3)

- Penal and disciplinary matters exclusive

jurisdiction of flag state (Article 97, Paragraph1)

except: withdrawal of certificates issued by

other states (Article 97, Paragraph 2)

- Inquiry (Administrative jurisdiction)

(Article 94, Paragraph 7)

Except in cases expressly provided

for in international treaties and

this Convention (Article 92,

Paragraph 1; e g , Articles 99-111,

Articles 218 and 221)

- In penal cases, home state can

institute proceedings against its

nationals (Article 97, Paragraph 1)

- Inquiry by other states possible

(Article 94, Paragraph 7)

Administration

Registration

- Fix conditions for grant of nationality

(Article 91, Paragraph 1)

- Maintain a register of ships

(Article 94, Subparagraph 2(a))

- Inspect before registration

(Article 94, Subparagraph 4(a))

- Issue flag documents

(Article 91, Paragraph 2)

Other measures

- Require master to help persons in danger or

distress (Article 98, Subparagraphs l (a-b)) and

assist in collision cases

- Investigate allegations of improper "control

(Article 94, Paragraph 6)

Registration may take place

only where "genuine link"

(Article 91, Paragraph 1)

- Nationality follows flag

(Articlel 91, Paragraph 1)

- "Treatment" as ship without

nationality

(Article 92, Paragraph 2)

Technical

Matters

Flag state measures are to

- Comply with generally accepted

international regulations,

procedure and practice

(Article 94, Paragraph 5)

- Ensure appropriate crew

qualification and numbers of crew

(Article 94, Subparagraph 4(b))

- Ensure that crew is conversant

with and required to observe

international regulations.

safety, collision, pollution,

radio communication

(Article 94, Subparagraph 4(c))

Required to ensure

- Construction, equipment, seaworthiness,

manning, training of crew, use of signals,

maintenance of communication, collision

prevention

(Article 94, Paragraph 3)

- Inspection at intervals

(Article 94, Subparagraph 4(a))

- Charts, nautical publications, navigational

equipment is on board

(Article 94, Subparagraph 4(a))

Social

Matters

- Labour conditions (Article 94, Paragraph 3)

WARSHIPS, etc.: Immunity (Articles 89-90), Pollution (Articles 236, 304)

VESSELS OF UNITED NATIONS, etc. Article 93

INTERNATIONAL JURISDICTION

Section: Part VII, Articles 86-120

The exclusive jurisdiction of the flag state is not absolute. There are several exceptions by which other states are granted in varying degrees a share of legislative or enforcement jurisdiction with the flag state. This sharing of jurisdiction is related in four cases to offences and in two cases to the nationality of vessels. These provisions are not derived from a common structure, although some of them are of ancient origin.

Only two basic principles in these provisions find some general application. One is that the states are required to co-operate in the repression of the offences of piracy, illicit drug trade, and unauthorized broadcasting; co-operation is not, on the other hand, expected for the prevention of transport of slaves. Secondly, warships and other vessels and aircraft clearly on government service have a right of visit on foreign vessels suspected of involvement in piracy, the slave trade, or unauthorized broadcasting. Government vessels also have a right of visit on vessels without nationality (important in the case of vessels which sail under the flags of two or more states ) and on vessels of apparently the same nationality as the government ship, even though flying a different flag or refusing to show any flag at all, in reality a question of flag state jurisdiction. In the case of ships involved in illicit drug trade, the jurisdiction of the flag state remains in this respect unchallenged. But the flag state may request co-operation from another state, including the conducting of a visit on board.

The jurisdiction of other states on foreign vessels as granted in the right to visit by duly authorized government vessels is limited to cases of suspicion of certain activities (piracy, slave trade, unauthorized broadcasting, sailing without nationality, practicing deception with regard to nationality); the boarding vessel may verify the right of the ship to fly the flag. by checking its documents and, if suspicion remains, proceed to a further investigation. Only in cases of piracy and unauthorized broadcasting are the rights of other states considerably extended. It is significant that the definition of piracy presumes the involvement of at least two vessels, a pirate vessel and a victim vessel, thus excluding hijacking as it has been practiced in recent years from being treated as piracy. Piracy is the only case in which every state's official vessels may carry out a seizure and the state exercises full jurisdiction with regard to penalties to be imposed and action to be taken. Actions of arrest and seizure due to unauthorized broadcasting, on the other hand, may be carried out only by states affected by unlawful broadcasting.

HOT PURSUIT

Section: Part VII, Articles 86-120

The right of hot pursuit has developed of itself. It allows an official vessel to extend the sovereignty of the coastal state beyond the territorial sea by maintaining an uninterrupted chase of a fleeing merchant vessel. The pursuing vessel must be authorized to make arrests. Hot pursuit may commence when the coastal state has good reason to believe that the foreign vessel has violated the state's laws and regulations and the vessel has disobeyed a clear order to stop. The chase must begin within the limits of the territorial sea or, where relevant rights have been violated, in zones further out. The right of hot pursuit ceases when the chase is interrupted or the vessel reaches the territorial sea of its own state or a third state.

SPECIAL JURISDICTION ON THE HIGH SEAS

Section: Part VII, Articles 86-120

I. ARTICLES 99-110

Activity

General

"Right to Visit" (Article 110)

Slave trade

(Article 99)

Hag state shall take measures to prevent

Piracy

(Article 100-107)

- Piracy

Illegal acts of crew or passenger or support

of such for private ends by or on commercial

or official vessels against another vessel

(Articles 101-103)

- Seizure by official vessels (Article 107)

- Retention-or loss of nationality (Article 104)

- Jurisdiction of state seizing vessel (Article 105)

- Liability for unjustified seizure (Article 106)

All states co-operate in repression of piracy

(Article 100)

- Any warship has right

to board

- Must be reasonable

grounds

- Action which can be taken:

1) Verify the right ship to

fly flag

2) Document check

3) If suspicion remains,

inspection of ship

- Compensation for loss

or damage if unjustified

- Applicable for official

aircraft and vessels

(Article 110,

Paragraphs 4 and 5)

Vessels without nationality, e.g.. Article 92, Paragraph 2

Unauthorized

broadcasting

(Article 109)

Arrest of person and vessel and seizure of

broadcasting apparatus; prosecution by state with jurisdiction for boarding

Boarding only by state

affected by undertaking

(Article 109, Paragraph 3)

Refusal to show

flag (Article 110)

Boarding only by warship

which in reality same

nationality as boarded ship

Illicit traffic in narcotic drugs or psychotropic substances (Article 108)

- All states must co-operate in repression

- Flag state may request co-operation from

other states in suspicious cases

No boarding

II. ARTICLE 111: HOT PURSUIT

Principles:

1) By vessels or aircraft in government service.

2) Clear visual or auditory signal to stop must be given.

3) Pursuit must not be interrupted.

4) Right of hot pursuit ceases by reason of

a) Interruption;

b) Vessel reaching territorial sea of flag state or other state.

5) Hot pursuit must begin in zone where the vessel violated applicable coastal state law

- In internal waters and territorial sea - at the latest in the territorial sea

- Violation of customs, fiscal, immigration, and sanitary law (Article 33) applicable for continuous zone - at the latest in contiguous zone (also for exclusive economic zone and continental shelf).

6) Liability for unjustified measures.

SUBMARINE CABLES AND PIPELINES

Section: Part VII, Articles 86-120

The freedom to lay submarine cables and pipelines on the bed of the high seas beyond the continental shelf is guaranteed, but states must have due regard for cables and pipelines already in position. The provisions serve to protect such installations and require states to implement laws and regulations as follows:

1) Injury or obstruction of installations done wilfully, through culpable negligence, or intentionally are to be treated as punishable offences, unless the act was committed in a distress situation;

2) Cable or pipeline owners who, in laying or repairing that cable or pipeline, cause damage to or break another cable or pipeline are to bear the costs of repair;

3) Owners of cables or pipelines are to indemnify owners of ships who have sacrificed equipment in order to avoid damage to a cable or pipeline.

FISHERIES ON THE HIGH SEAS

Section: Part VII, Articles 86-120

Until the middle of this century, the traditional international law of fisheries provided for a territorial sea of three nautical miles and the remainder of the oceans, the high seas, for which there was freedom of fishing. Although the Convention retains freedom of fishing on the high seas, the results are considerably different.

Of greatest impact is the fact that the coastal states have the right to establish an exclusive economic zone which extends for 200 nautical miles from the coast within which they have fishing rights. About 90% of the commercially exploitable fish stocks can be found in such zones if they are universally established.

Consequently, the Convention requires measures for the high seas supplementary to those for the exclusive economic zone. These measures can be summarized as conservation measures implemented by the state for its nationals and measures for co-operation between the states for conservation and management of resources in the high seas. The guidelines, which apply for determining allowable catch and establishing conservation measures, are similar to those for the coastal states in their exclusive economic zones; furthermore, such measures must avoid the discrimination of fishermen of any other state. States must also have due regard for stocks and species which move from coastal state zones to the high seas and back and consider whether these stocks are subject to coastal state conservation and management measures . In particular, coastal states and states concerned with fishing on the high seas are to co-operate in respect to highly migratory species listed in Annex I.

The limited resources of the high seas, together with the various measures to be taken, make it essential to reach a balance between the conflicting principles of freedom of fishing and cooperative conservation and management of the resources of the high seas. The Convention provides for the establishment of subregional or regional fisheries organizations to achieve this end.

FREEDOM OF FISHING

Section: Part VII, Articles 86-120

ARTICLE 87, SUBPARAGRAPH 1(e)

subject to

Article 117

-As necessary for the

conservation of living

resources

-In conservation and

management

-Negotiations between

states where nationals

exploit identical or

different living resources

in the same area

-Establish subregional or

regional organizations

Article 119, Paragraph 2

-Exchange data with states

concerned

Articles 120, 65

-States together with

international organizations

Article 64, Annex I

-Co-operation between flag

state and coastal state in

respect to highly

migratory species

Article 119

In determining the

allowable catch (alone or

with other states) and

establishing other

conservation measures the

the states are

use the best scientific to

evidence

- consider relevant factors

maintaining and

restoring populations of

stocks

- take due regard for

developing countries

take into account

international standards,

whether subregional,

regional, or global

- avoid serious treat to

species

- exchange data and

information

- avoid in form or fact

discrimination of

fisherman from other

other states

Article 120, 65

- May restrict the

exploitation of marine

mammals more strictly

the provided by

Convention

Article 63, Paragraph 2

- States concerned are to

seek, either directly or

trhough organizations, to

agree upon the measures

necessary for the

conservation of these

stocks in the adjacentArticle 118

area (here: high seas)

Articles 65-67

- Marine mammals

Article 65

- Anadromous stocks

Article 66

- Catadromous species

Article 67

Article 64, Annex I

- Co-operation required in

respect to highly

migratory species