Principle of the freedoms of the high seas

1. Evolution of the principle of the freedoms of the seas

The desire to control the seas in order to control navigation and exploit maritime resources probably dates back to the days when the Egyptians first plied the Mediterranean in papyrus rafts. Over the centuries, countries possessing vast ocean-going fleets or small fishing flotillas, husbanding rich fishing grounds close to shore or eyeing distant harvests, have all vied for the control of the seas.

When various missions of exploration or ‘discoveries’ were taking place, Spain and Portugal, the two great maritime powers of the day, were competing for the control of the seas and oceans of the globe. In 1494, two years after Christopher Columbus’s first expedition to America, Pope Alexander VI met with representatives of these two nations and divided the Atlantic Ocean between them. Everything west of the line the Pope drew down the Atlantic belonged to Spain and everything east of it to Portugal. On the basis of this Papal decree, the Pacific and the Gulf of Mexico were claimed by Spain, and Portugal claimed the South Atlantic and the Indian Ocean, effectively dividing the world into two halves.

As other European countries such as the Netherlands, France and Great Britain expanded their maritime power, they began to challenge the division of the world’s seas and oceans between Spain and Portugal. It was around this time that Hugo Grotius published his monograph, Mare Liberum, advocating the freedom of the seas rather than control by a few states. When Britain became more powerful, British authors such as John Selden sought to revive the idea of the closed sea, mare clausum. However, this idea was challenged by other maritime powers and legal scholars of the day. Consequently, the freedom of the high seas was accepted as a cardinal principle of the law of the sea.

Nevertheless, the traditional law of the sea accepted that states could claim some part of the seas beyond their shores as part of their territory, as a zone of protection to be patrolled against smugglers, pirates, warships and other intruders. This came to be known as the territorial sea, and its boundary evolved from the eighteenth century ‘cannon-shot’ rule to a three-mile rule and eventually to a 12-mile rule. Even the right of ‘innocent passage’, a term that is generally recognized to mean passage ‘not prejudicial to the peace, good order or security of the coastal state’, has been accepted so that foreign ships can traverse the waters of the territorial sea of a coastal state. This means that the

law of the sea has protected and preserved one of its original purposes, and one of the five principles of the freedoms of the sea – the freedom of navigation – even in the territorial sea. In this sense, the navigational aspect of the centuries-old principle

2. Freedom of the high seas

Part VII of the 1982 Convention deals with the high seas. According to Article 86, the term ‘high seas’ signifies those parts of the sea that are not included in the exclusive economic zone (EEZ), territorial sea or internal waters of a state, or in the archipelagic waters of an archipelagic state. Article 87 elaborates on the freedoms of the high seas in the following words:

Article 87

Freedom of the high seas

1. The high seas are open to all States, whether coastal or land-locked. Freedom of the high seas is exercised under the conditions laid down by this Convention and by other rules of international law. It comprises, inter alia, both for coastal and land-locked States:

a. freedom of navigation;

b. freedom of overflight;

c. freedom to lay submarine cables and pipelines, subject to Part VI;

d. freedom to construct artificial islands and other installations permitted under international law, subject to Part VI;

e. freedom of fishing, subject to the conditions laid down in section 2;

f. freedom of scientific research, subject to Parts VI and XIII.

2. These freedoms shall be exercised by all States with due regard for the interests of other States in their exercise of the freedom of the high seas, and also with due regard for the rights under this Convention with respect to activities in the Area.

There are a number of other basic features of the high seas, and some of the more significant ones are as follows:

a) The high seas should be reserved for peaceful purposes, albeit that the meaning and scope of the phrase ‘peaceful purposes’ remains controversial in international law.

b) No state may validly purport to subject any part of the high seas to its sovereignty.

c) Every state, whether coastal or land-locked, has the right to sail ships flying its flag on the high seas.

d) All states are entitled to lay submarine cables and pipelines on the bed of the high seas beyond the continental shelf.

3. Rights and duties of states relating to shipping

Since all states have freedom of navigation in the high seas, the 1982 Convention outlines in some detail the rights and duties of states regarding shipping so that the freedoms guaranteed under the Convention can be exercised by all states. Article 91 requires every state to fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory and for the right to fly its flag. Ships have the nationality of the state whose flag they are entitled to fly. However, the Convention stipulates that a genuine link must exist between the state and the ship.

Several cases before the International Tribunal on the Law of the Sea (ITLOS), the main judicial body established by the Convention, have dealt with the issue of nationality of ships, notably the first ever case to come before the Tribunal, the M/V Saiga Case between St Vincent (and the Grenadines) and Guinea.

Article 92 stipulates the status of ships as follows:

Article 92

Status of ships

1. Ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or in this Convention, shall be subject to its exclusive jurisdiction on the high seas. A ship may not change its flag during a voyage or while in a port of call, save in the case of a real transfer of ownership or change of registry.

2. A ship which sails under the flags of two or more States, using them according to convenience, may not claim any of the nationalities in question with respect to any other State, and may be assimilated to a ship without nationality.

Article 94 outlines the duties of states regarding ships flying their flag:

Article 94

Duties of the flag State

1. Every State shall effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag.

2. In particular every State shall:

a. maintain a register of ships containing the names and particulars of ships flying its flag, except those which are excluded from generally accepted international regulations on account of their small size; and

b. assume jurisdiction under its internal law over each ship flying its flag and its master, officers and crew in respect of administrative, technical and social matters concerning the ship.

3. Every State shall take such measures for ships flying its flag as are necessary to ensure safety at sea with regard, inter alia, to:

a. the construction, equipment and seaworthiness of ships;

b. the manning of ships, labour conditions and the training of crews, taking into account the applicable international instruments;

c. the use of signals, the maintenance of communications and the prevention of collisions.

4. Such measures shall include those necessary to ensure:

a. that each ship, before registration and thereafter at appropriate intervals, is surveyed by a qualified surveyor of ships, and has on board such charts, nautical publications and navigational equipment and instruments as are appropriate for the safe navigation of the ship;

b. that each ship is in the charge of a master and officers who possess appropriate qualifications, in particular in seamanship, navigation, communications and marine engineering, and that the crew is appropriate in qualification and numbers for the type, size, machinery and equipment of the ship;

c. that the master, officers and, to the extent appropriate, the crew are fully conversant with and required to observe the applicable international regulations concerning the safety of life at sea, the prevention of collisions, the prevention, reduction and control of marine pollution, and the maintenance of communications by radio.

5. In taking the measures called for in paragraphs 3 and 4 each State is required to conform to generally accepted international regulations, procedures and practices and to take any steps which may be necessary to secure their observance.

6. A State which has clear grounds to believe that proper jurisdiction and control with respect to a ship have not been exercised may report the facts to the flag State. Upon receiving such a report, the flag State shall investigate the matter and, if appropriate, take any action necessary to remedy the situation.

7. Each State shall cause an inquiry to be held by or before a suitably qualified person or persons into every marine casualty or incident of navigation on the high seas involving a ship flying its flag and causing loss of life or serious injury to nationals of another State or serious damage to ships or installations of another State or to the marine environment. The flag State and the other State shall cooperate in the conduct of any inquiry held by that other State into any such marine casualty or incident of navigation.

4. Controlling piracy

Piracy is one of the major problems that ships encounter in the high seas. Piracy is an old problem and the law on piracy has evolved along with the freedom of the high seas. Piracy consists of any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed on the high seas against another ship or aircraft, or against persons or property on board such ship or aircraft, or against a ship, aircraft, persons or property in a place outside the jurisdiction of any state.

Article 105 of the Convention allows every state to seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board, if it is on the high seas or in any other place outside the jurisdiction of any state.

5. Right of hot pursuit

The law of the sea has traditionally acknowledged the right of hot pursuit of foreign ships by coastal states. The hot pursuit of a foreign ship may be undertaken by a coastal state when the competent authorities of that state have good reason to believe that the ship has violated the laws and regulations of that state.

There are a number of conditions that have to be met when exercising such pursuit. For a start, such pursuit must be commenced when the foreign ship or one of its boats is within the internal waters, the archipelagic waters, the territorial sea or the contiguous zone of the pursuing state. It may only be continued outside the territorial sea or the contiguous zone if the pursuit has not been interrupted.

The right of hot pursuit applies mutatis mutandis to violations in the EEZ or on the continental shelf, including safety zones around continental shelf installations, of the laws and regulations of the coastal state applicable in accordance with the Convention to the EEZ or the continental shelf, including such safety zones.

The right of hot pursuit is mainly to pursue ships in the high seas or the EEZs of other states. It must be stopped as soon as the ship pursued enters the territorial sea of its own flag state or of a third state. Hot pursuit is not deemed to have begun unless the pursuing ship has satisfied itself by such practicable means as may be available that the ship pursued, or one of its boats or other craft working as a team and using the ship pursued as a mother ship, is within the limits of the territorial sea, or, as the case may be, within the contiguous zone or the EEZ or above the continental shelf.’

The pursuit may only be commenced after a visual or auditory signal to stop has been given at a distance that enables it to be seen or heard by the foreign ship. Finally, the right of hot pursuit may be exercised only by warships or military aircraft, or other ships or aircraft clearly marked and identifiable as being on government service and authorised to that effect. Legal issues related inter alia to the provisions on hot pursuit have arisen in cases before the ITLOS, for example, the ‘Volga’ Case between the Russian Federation and Australia.

6. Rights and duties of states regarding the conservation and management of the living resources of the high seas

One of the freedoms of the high seas available to all states is the freedom of fishing. Of course, like any other freedom it is not unfettered. There are a number of limitations and qualifications to it imposed by various international treaties. One of these concerns the rights and duties of states regarding the conservation and management of the living resources of the high seas.

Although the high seas areas located beyond the 200-mile EEZ are not rich in fisheries resources, the freedom of fishing on the high seas is a significant freedom of all states, whether coastal or land-locked. To make this freedom meaningful and ensure that its exercise produces no detrimental impact on the fisheries resources of the EEZs of coastal states, the 1982 Convention accords certain rights to coastal states and imposes duties relating to the conservation and management of the living resources of the high seas.

Article 116 proclaims that all states have the right to fish on the high seas. Article 117 states that they also have a duty:

All States have the duty to take, or to cooperate with other states in taking, such measures for their respective nationals as may be necessary for the conservation of the living resources of the high seas.

Similarly, Article 118 outlines a duty of cooperation of states in the conservation and management of living resources. Those states whose nationals exploit identical living resources, or different living resources in the same area, are required to enter into negotiations with a view to taking the measures necessary for the conservation of the living resources concerned. They also are required, as appropriate, to cooperate to establish subregional or regional fisheries organisations to this end. With regard to the conservation of the living resources of the high seas, Article 119 provides as follows:

Article 119

Conservation of the living resources of the high seas

1. In determining the allowable catch and establishing other conservation measures for the living resources in the high seas,States shall:

a. take measures which are designed, on the best scientific evidence available to the States concerned, to maintain or restore populations of harvested species at levels which can produce the maximum sustainable yield, as qualified by relevant environmental and economic factors, including the special requirements of developing States, and taking into account fishing patterns, the interdependence of stocks and any generally recommended international minimum standards, whether subregional, regional or global;

b. take into consideration the effects on species associated with or dependent upon harvested species with a view to maintaining or restoring populations of such associated or dependent species above levels at which their reproduction may become seriously threatened.

2. Available scientific information, catch and fishing effort statistics, and other data relevant to the conservation of fish stocks shall be contributed and exchanged on a regular basis through competent international organisations, whether subregional, regional or global, where appropriate and with participation by all States concerned.

3. States concerned shall ensure that conservation measures and their implementation do not discriminate in form or in fact against the fishermen of any State.

7. Straddling and highly migratory fish stocks

An Agreement for the implementation of the provisions of the 1982 Convention relating to the conservation and management of straddling and highly migratory fish stocks was concluded in 1995. This Agreement is an elaboration of the provisions of the 1982 Convention and is designed to implement Articles 63 and 64 and some other sections of Part VII of the Convention. Straddling fish stocks are those that straddle the boundary of a state’s EEZ and the high seas, while highly migratory fish stocks are those that generally roam over large distances and may be found in numerous EEZ jurisdictions and the high seas.

The 1995 Agreement:

a) emphasises the special role of regional fisheries management organisations in the conservation and management of straddling fish stocks and highly migratory fish stocks

b) elaborates upon the obligation of states to cooperate in the conservation and management of straddling fish stocks and highly migratory fish stocks

c) imposes a duty upon states not to authorise vessels to fish for such fish stocks unless the state is party to, or cooperates with, any subregional or regional fisheries management organisation or arrangement which has competence to establish conservation and management measures for the stock concerned.

The aim of the agreement is to encourage and empower the arrangements of regional fisheries organisations to control illegal fishing within high seas areas found in regional or subregional seas.

8. Other international instruments

There are a number of other international instruments that have dealt with the issues concerning the management and conservation of the living resources of the high seas. For instance, the United Nations Conference on Environment and Development (UNCED) held in Rio de Janeiro, Brazil, from 3 to 14 June 1992 included a section (Section C) entitled ‘Sustainable Use and Conservation of Marine Living Resources of the High Seas’, in which it was pointed out that management of high seas fisheries, including the adoption, monitoring and enforcement of effective conservation measures, was inadequate in many areas and that some resources were over-utilised.

It further noted that:

There are problems of unregulated fishing, overcapitalization, excessive fleet size, vessel reflagging to escape controls, insufficiently selective gear, unreliable databases and lack of sufficient cooperation between States. Actions by States whose nationals and vessels fish on the high seas, as well as cooperation at the bilateral, sub-regional, regional and global levels, is essential particularly for highly migratory species and straddling stocks.

Accordingly, in paragraph 17.52(e) it was recommended that:

States should convene, as soon as possible, an intergovernmental conference under the United Nations auspices, taking into account relevant activities at the sub-regional, regional and global levels, with a view to promoting effective implementation of the provisions of the United Nations Convention on the Law of the Sea on straddling fish stocks and highly migratory fish stocks.

It was hoped that the Conference would identify and assess existing problems related to the conservation and management of such fish stocks, consider means of improving cooperation on fisheries among states and formulate appropriate recommendations. UNCED also called on states to take effective action to deter reflagging of vessels by their nationals as a means of avoiding compliance with applicable conservation and management rules for fishing activities on the high seas.

i) FAO Compliance Agreement

This matter had also been taken up by the UN’s Food and Agriculture Organization (FAO) Technical Consultation on High Seas Fishing in September 1992, while at the 102nd session of the FAO Council, the Council:

“agreed that the issue of reflagging of fishing vessels into flags of convenience to avoid compliance with agreed conservation and management measures… should be addressed immediately by FAO, with a view to finding a solution which could be implemented in the near future.”

The FAO was requested to formulate an agreement and, between 1991 and 1993, one was negotiated under Article XIV of the FAO Constitution. The FAO Compliance Agreement was adopted by the FAO Conference on 24 November 1993 by resolution 15/93, and then opened for acceptance. In accordance with Article XI.1, the Agreement entered into force on 24 April 2003, the date of receipt by the Director-General of the 25th instrument of acceptance.

ii) Code of Conduct for Responsible Fisheries

The FAO Compliance Agreement and the UN Fish Stocks Agreement have been supplemented by the Code of Conduct for Responsible Fisheries, which is a voluntary instrument adopted by the FAO Conference in Resolution 4 of 1995. Unlike the other two agreements referred to, as the Code is voluntary, no specific action by states is required for it to take effect. These three instruments provide the framework for future actions concerning fisheries, particularly as regards high seas fishing.

It is clearly outlined both in the preamble and in the definition of ‘international conservation and management measures’ of the FAO Compliance Agreement that its provisions are intended to be consistent with ‘international law as reflected in the United Nations Convention on the Law of the Sea’.

9. Threats to freedoms of the high seas

The age-old freedoms of the high seas have come under pressure in the recent past due to the increasing encroachment of coastal state control within the high seas area, relying on the need to control illegal fishing, marine environmental protection, control of illegal immigration and more recently, post 9/11, maritime security concerns. For instance, states such as Australia have taken far-reaching maritime security initiatives designed to regulate such activities. Piracy incidents are also reported to be on the increase in different parts of the seas.

Both traditional and modern forms of human activity are posing an unprecedented threat to the freedoms of the high seas, especially the freedom of navigation. Some of these new threats or challenges to freedoms of the high seas are threatening to disturb the balance that was achieved between the ever-expanding claims of coastal state control of the seas and the need to preserve the freedoms of the high seas during the UNCLOS III negotiations.

i) Growth in piracy off the coast of Somalia

Growth in piracy off the coast of Somalia in recent years has galvanized states into action. Several have sent naval vessels to patrol the Gulf of Aden in an effort to protect international commercial shipping. The UN Security Council has passed a series of resolutions giving naval forces patrolling the area legal authority to pursue pirates not only in the high seas but also within Somali waters and territory. A number of Somali pirates have been apprehended and prosecuted before courts around the globe and some of them have been convicted and given a prison sentence.

In a related development, the UK government, the EU and a number of other countries entered into an agreement with the Kenyan government to permit sea robbers captured by the Royal Navy to be tried in Kenyan courts. However, Kenya later unilaterally terminated the agreements with the EU and many other countries, committing itself to try captured Somali pirates in its courts in defiance of diplomatic pressure from Western powers. In a statement dated 30 September 2010, the Kenyan Ministry of Foreign Affairs said that these agreements would effectively terminate that day.

ii) First European trial of alleged Somali pirates

The first European trial of alleged Somali pirates took place in the Netherlands in May 2010. Five Somali men were accused of attempting to hijack a cargo ship registered in the Netherlands Antilles. They were arrested in the Gulf of Aden in 2009 when their high-speed boat was intercepted by a Danish frigate. The men were tried in Rotterdam district court, and were convicted and sentenced to five years in prison. Several other piracy cases have since been tried in the European courts.

iii) Somali pirates before US court

In November 2010 a US court sentenced a Somali man to 30 years in jail for attacking a US warship off the coast of Somalia. The sentence was handed down at a federal court in Norfolk, Virginia. That same month, a Norfolk jury convicted five Somalis of acts of piracy for attacking the frigate USS Nicholas. These developments demonstrate that the USA will hold pirates accountable in US courtrooms.

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