Changing Perspectives on the High Seas Freedom of Navigation?

1 Montego Bay, 10 December 1982; 1833 United Nations Treaty Series (hereinafter UNTS) 3.

2 Convention on the High Seas, Geneva, 29 April 1958; 450 UNTS 11.

3 The equivalent in the High Seas Convention, supra n 2, is in the first sentence of Art 2.

4 PT Fenn Jr, ‘Justinian and the Freedom of the Sea’, (1925) 19 American Journal of International Law 716 at 716 and original sources there cited.

5 Though this postdates Grotius, to whom the modern doctrine of freedom of navigation is attributed, he was willing to concede that the impossibility of occupation of the sea, on which he based his reasoning, did not extend to certain narrow bodies of water in the immediate vicinity of the coast such as bays or straits: H Grotius, The Freedom of the Seas Or the Right Which Belongs to the Dutch to Take Part in the East Indian Trade (translated by R van Deman Magoffin) (New York: Carnegie Endowment for International Peace, 1916) at 31 and 37.

6 L Cannon, ‘Public Perception Seems Split in Its Perception of Reagan’, The Washington Post, 12 July 1982 at 3; the remark was made at the 29 June 1982 meeting of the National Security Council at which the decision that the US would not sign UNCLOS was taken.

7 Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of America), Judgment, ICJ Reports 1984, p 246 at 312 (para 157).

8 Supra n 2, Art 1.

9 Supra n 1, Art 86.

10 The most prominent examples are the International Convention on Load Lines (London, 5 April 1966), 640 UNTS 133; the International Convention on Tonnage Measurement of Ships (London, 23 June 1969), 1291 UNTS 3; the International Convention Relating to Intervention on the High Seas in the case of Oil Pollution Casualties (Brussels, 29 November 1969), 970 UNTS 211; the Convention on the International Regulations for Preventing Collisions at Sea (London, 20 October 1972), 1050 UNTS 16; the International Convention for the Safety of Life at Sea (London, 1 November 1974), 1184 UNTS 3; and the International Convention on Maritime Search and Rescue (Hamburg, 27 April 1979), 1456 UNTS 221.

11 The exact wording is ‘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…’, the equivalent phrase in the last sentence of Art 2 of the High Seas Convention, supra n 2, was the slightly weaker ‘reasonable regard’. D Anderson, ‘Freedoms of the High Seas in the Modern Law of the Sea’, in D Freestone, R Barnes and DM Ong (eds), The Law of the Sea: Progress and Prospects (Oxford University Press, 2006), 327 at 332 denies that there is any difference in meaning between the two phrases, but if that is the case it is not clear why the negotiators of UNCLOS thought fit to change the wording. The author has usually been able to convince his students otherwise by drawing their attention to the signs placed at several points on the perimeter of the University of Southampton’s Highfield campus, enjoining cyclists to proceed with ‘due regard for the safety of pedestrians’, and inviting them to consider whether as pedestrians they would feel safer if ‘due’ were to be changed to ‘reasonable’.

12 Supra n 1, Art 92(1).

13 Supra n 2, Art 6(1).

14 [1999] 2 NZLR 44.

15 Ibid, at 46.

16 Ibid, at 48–49.

17 Ibid, at 46.

18 Ibid, at 57. UNCLOS was not, however, among the conventions declared for the purposes of s 5(b) of the Act under the Maritime Transport Act (Conventions) Order 1994 (NZ) (SR 1994/273), cl 2 and Schedule.

19 Ibid, at 46–47.

20 Ibid, at 48.

21 Ibid.

22 Ibid, at 57.

23 Ibid, at 54.

24 By analogy with the hot pursuit exception to the flag State rule in UNCLOS Art 111, however, a pursuit for the offence in question, begun and maintained under the right conditions, could culminate in stopping the Nimbus in the territorial sea on the way out – though not on the way back in some months later.

25 Ports are taken to be internal waters because they lie landward of the baseline from which the breadth of the territorial sea is measured (UNCLOS, supra n 1, Art 8(1)), the outermost permanent harbour works forming part of the baseline (ibid, Art 11).

26 The locus classicus in this respect is the statement of the ICJ in Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Merits, Judgment, ICJ Reports 1986, p 14 at 111 (para 213): ‘It is … by virtue of its sovereignty that the coastal State may regulate access to its ports’.

27 See Regulation 13F of Annex I to the International Convention for the Prevention of Pollution from Ships (London, 2 November 1973; 1340 UNTS 61), inserted by Resolution MEPC.52(32) adopted on 6 March 1992 and in force since 6 July 1993, reproduced at 1733 UNTS 385.

28 46 USC s 3703a, inserted by s 4115 of the Act (PL 101-380). See also Patterson v Bark Eudora (1903) 190 US 169 at 178, where the US Supreme Court said per Brewer J that ‘the implied consent to permit [foreign merchant vessels] to enter our harbors may be withdrawn, and if this implied consent may be wholly withdrawn, it may be extended upon such terms and conditions as the government sees fit to impose’.

29 Supra n 10 (last item).

30 Sellers v Maritime Safety Inspector, supra n 14, at 59.

31 Ibid, at 62.

32 Ibid.

33 Ibid, at 61.

34 Ibid, at 62.

35 P Myburgh, ‘Shipping Law’, [1999] New Zealand Law Review 387 at 398.

36 Brussels, 10 May 1952; 439 UNTS 193.

37 Owners of the motor vessel Erkowit v Owners of the ship Jade; Owners of cargo lately laden on board the motor vessel Erkowit v Owners of the ship Eschersheim [1976] 1 All ER 920 at 924 per Lord Diplock.

38 Sellers v Maritime Safety Inspector, supra n 14, at 60; the Court also considered and rejected two other possible interpretations that would avoid the Director’s powers in s 21 conflicting with international law: exclusion of foreign pleasure craft from the scope of the section, or limitation of the section’s spatial application so as not to extend to the high seas: at 59–60.

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