Maritime Transit and the Regime of the High Seas


(p. 296) 13  Maritime Transit and the Regime of the High Seas

1.  Introduction1

The modern law of the high seas is largely set out in two multilateral treaties, one built substantially on and intended to replace the other, both setting out propositions in ‘all states’ form. The first is the Geneva Convention on the High Seas (GCHS),2 the preamble of which asserts that its articles ‘are generally declaratory of established principles of international law’. Its provisions were substantially co-opted by Part VII (High Seas) of the UN Convention on the Law of the Sea (UNCLOS),3 which, despite the continued non-participation of some states, can for most purposes be taken to reflect the definitive position on the subject.4

The high seas traditionally encompassed all parts of the sea beyond the territorial sea and the internal waters of a state.5 By contrast UNCLOS specifies that the provisions of Part VII ‘apply to all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State’ (Article 86). This invites two observations. First, by(p. 297) no means all coastal states claim an Exclusive Economic Zone (EEZ). Secondly, many high seas freedoms are applicable in the EEZ (Articles 58, 86), and this is also the position in customary international law.6

The regime of the high seas does not apply to international lakes and land-locked seas, which are not open to free navigation except by special agreement. However, seas which are virtually land-locked may acquire the status of high seas: this is so of the Baltic and Black Seas. In such cases much turns on the maintenance of freedom of transit through the straits communicating with other large bodies of sea.7 It is doubtful whether, apart from special agreements on access and other issues, the Baltic and Black Seas would have the status of open seas. The Caspian Sea does not.8

2.  Freedom of the High Seas

(A)  Historical and Jurisprudential Origins

The modern law governing the high seas has its foundation in the rule that the high seas were not open to acquisition by occupation on the part of states individually or collectively: it was res extra commercium or res communis. The emergence of the rule is associated with the rise to dominance of maritime powers and the decline of the influence of states which had favoured closed seas. By the eighteenth century the position had changed completely. Dutch policies had supported freedom of navigation and fishing, and Grotius had written against the Portuguese monopoly of navigation and commerce in the East Indies.9 After the accession of William of Orange to the English throne in 1689, English disputes with Holland over fisheries ceased. By the(p. 298) late eighteenth century the British claim to sovereignty (the King’s Chambers) was obsolete; insistence on the flag ceremony ended in 1805. Also by this time, the cannon-shot rule predominated and claims to large areas of sea faded away.10 In the nineteenth century naval power and commercial interests dictated British, French, and American support for the principle of freedom of the seas. Whatever special interests the principle may have served historically, it commended itself as representing a sensible concept of shared use in circumstances where the level of technology did not threaten the maritime global commons.

Although the freedom of the high seas was described by Gidel as ‘multi-forme et fugace’,11 in truth it is a general principle of international law, a policy or concept from which particular rules may be inferred. But its application to specific problems oft en fails to give precise results. For example, weapons testing, which involves the temporary closure of large areas of ocean, is regarded by some as a legitimate use and by others as a serious denial of the freedom of the seas.12 Gidel regards the concept as essentially negative, in the sense that states are prima facie obliged not to impede vessels under the flag of another state from going about their business on the high seas, and vice versa.13 However, both the substance of the principle and its character as such give rise to certain presumptions which may aid in the resolution of particular problems, and some consideration of its positive content is, therefore, useful. Grotius stated two propositions: first, that the sea could not be the object of private or public appropriation; secondly, that the use of the high seas by one state would leave the medium available for use by another.14 To these propositions it is necessary to add that the general principle applies in time of war or armed conflict as well as time of peace.15 On two occasions the International Court has taken the opportunity to invoke ‘the principle of the freedom of maritime communication’.16

(B)  Unclos and the Freedom of the High Seas

UNCLOS Article 87 Renders the Principle of Freedom of the High Seas As follows:

  1. (p. 299) 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, for both coastal and land-locked States:

    1. (a)  freedom of navigation;

    2. (b)  freedom of overflight;

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

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

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

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

  2. 2.  These freedoms shall be exercised by all States with due regard to 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 [on the sea bed and ocean floor and subsoil thereof].

Of the six freedoms enumerated in Article 87, only freedom of navigation, fishing, the laying of submarine cables and pipelines, and overflight were included in GCHS Article 2. These four freedoms are supported by arbitral jurisprudence and are inherent in many particular rules of law. Freedom of fishing is an assumption at the base of the decision in Anglo-Norwegian Fisheries17 and the awards in the Behring Sea Fisheries arbitrations in 189318 and 1902.19 Both arbitrations arose from attempts to enforce conservation measures on the high seas. In the former case the US had arrested Canadian sealers, and in the latter Russian vessels had arrested American sealers, with the object of preventing the depletion of seal stocks. Both awards rejected claims to enforce conservation measures against foreign vessels on the high seas. In the absence of a treaty, a coastal state could only apply such measures to vessels flying its own flag. Of the questions submitted for decision to the tribunal of 1893 the fift h concerned an issue of general law: ‘Has the United States any right, and if so, what right of protection or property in the fur-seals frequenting the islands of the United States in Behring Sea when such seals are found outside the ordinary three-mile limit?’ The arbitrators found, by a majority, that ‘the United States has not any right of protection or property in the fur-seals frequenting the islands of the United States in Behring Sea, when such seals are found outside the ordinary three-mile limit’.20

UNCLOS Article 86(1) places additional limitations upon high-seas freedoms as compared with the earlier law. The existing freedom to lay submarine pipes and cables(p. 300) and the ‘new’ freedoms to construct artificial islands and other structures and to undertake scientific research are limited by UNCLOS Part VI, governing activities on the continental shelf. The freedom to fish is limited by Part VII, section 2, concerning the conservation and management of living resources on the high seas. In particular, Articles 117 and 118 condition the freedom to fish by requiring states parties to cooperate with other states in taking such measures for their respective nationals as may be necessary for the conservation and management of living resources on the high seas, to the extent of establishing subregional or regional fisheries management organizations to this end.21

UNCLOS Part XI is also relevant, regulating activities on the sea bed and ocean floor and its subsoil beyond the limits of national jurisdiction. It establishes the International Seabed Authority, an international organization through which the states parties to UNCLOS can organize and control seabed activities, with a particular focus on administering resources beneath the sea floor.22

The most significant modification to customary international law arising from by UNCLOS, however, is the emergence of the EEZ as a separate jurisdictional zone claimable by each coastal state as of right.23 The concept of the EEZ only gained traction in the later part of the twentieth century;24 it was not recognized in the third Geneva Convention of 1958, which instead endorsed a coastal state right of pref-erence.25 By 1974, however, when the Third UN Conference on the Law of the Sea (UNCLOS III) opened, it was clear that a majority of especially developing states supported the concept and that all that remained was its full articulation. UNCLOS Part V provides a set of rules which regulate EEZs, and, in Article 57, sets the outer limit of the EEZ at 200nm seaward of the coastal state’s baselines: Article 56 provides for the rights, jurisdiction, and duties of the coastal state in its EEZ. As provided in Article 86, an EEZ does not form part of the high seas, though significant aspects of the regime of the high seas apply to the zone. This is seen primarily in the wording of Article 58(1), which sets out the rights and duties of other states in an EEZ, and preserves for them the freedoms of navigation, overflight, the laying of submarine cables and pipelines, and all other internationally lawful uses of the seas relating to these freedoms. Furthermore, Article 58(2) extends the application of Articles 88 to 115 (the bulk of(p. 301) the general provisions regulating the high seas, with the exception of the additional freedoms of Article 87(1)) to the EEZ to the extent they do not conflict with the provisions of Part V, creating in the process substantial overlap between the two fields.

(C)  Jurisdictional Aspects of the High Seas Regime

Although the basal principle of the law of the high seas is that one state cannot interfere with vessels sailing under the flag of another without the consent of the latter, UNCLOS Article 110 provides a number of exceptions, conferring power to stop, search, and even seize foreign vessels as an exercise of a state’s jurisdiction to enforce in certain cases.26 In other cases the parties are obliged only to incorporate the relevant prohibition in their national legislation, and enforcement is left to national courts in respect of the flag vessels and nationals of the forum state. The system of enforcement, whether specified by treaty or custom, rests on co-operation under international law and notably under the national laws of states possessing a maritime flag. Every state is under a duty to fix the conditions for the grant of nationality, 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.27

Insofar as jurisdiction is concerned, UNCLOS Part VII generally reflects customary international law, providing in Articles 88 and 89 respectively that the high seas are reserved for peaceful purposes28 and that no state may subject any part of the high seas to its sovereignty. Article 90 grants every state, coastal or land locked, the right to sail ships flying its flag on the high seas. Article 92(1) provides that ships shall sail under the flag of one state only; subject to certain exceptions, ships are subject to the exclusive jurisdiction of the flag state whilst on the high seas. Article 94 fixes the obligations of states with respect to vessels flying its flag. The right to enjoy the protection of the law balances the responsibility of the flag state for the behaviour of its ships.29

A ship without nationality30 loses the protection of the law with respect to boarding (and potentially seizure) on the high seas.31 However, such ships are not outside the law altogether; their occupants are protected by elementary considerations of humanity.

(p. 302) The seizure of ships by insurgents has created some difficult problems, and the issues have been obscured by a tendency for courts to describe ships under the control of insurgents as pirates. Such ships, it seems, should not be interfered with provided they do not attempt to exercise belligerent rights against foreign vessels and the lives of any ‘neutral’ aliens on board are not threatened.

(D)  Piracy32

Piracy is the principal exception to the freedom of the high seas, and one that has attained a new significance. The dissenting opinion of Judge Moore in the Lotus provides a useful starting-point. He said that

in the case of what is known as piracy by law of nations, there has been conceded a universal jurisdiction, under which the person charged with the offence may be tried and punished by any nation into whose jurisdiction he may come. I say ‘piracy by law of nations’, because the municipal laws of many States denominate and punish as ‘piracy’ numerous acts which do not constitute piracy by law of nations, and which therefore are not of universal cognizance, so as to be punishable by all nations. Piracy by law of nations, in its jurisdictional aspects, is sui generis. Though statutes may provide for its punishment, it is an offence against the law of nations; and as the scene of the pirate’s operations is the high seas, which it is not the right or duty of any nation to police, he is denied the protection of the flag which he may carry, and is treated as an outlaw, as the enemy of all mankind—hostis humani generis—whom any nation may in the interest of all capture and punish.33

The term ‘universal jurisdiction’ refers to the jurisdiction of a state to prescribe conduct occurring extraterritorially without a territorial, national or other internationally recognized nexus, as well as the capacity to enforce that jurisdiction on the high seas.34

(i)  The definition of piracy

The definition of piracy was historically a source of controversy,35 but UNCLOS Article 101 (reflecting almost verbatim GCHS Article 15) represents the existing(p. 303) customary law—or rather, custom has come to reflect it.36 Article 101 provides:

  1. 1.  Piracy consists of any of the following acts:

    1. (a)  any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or passengers of a private ship or private aircraft , and directed:

      1. (i)  on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;

      2. (ii)  against a ship, aircraft, persons or property in a place outside the jurisdiction or any State;

    2. (b)  any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft;

    3. (c)  any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b).

The only innovation here as compared with the pre-1958 understanding of piracy is the reference to aircraft, a sensible application of analogy.37 The essential feature is that the acts must be committed for private ends.38Piracy cannot be committed by warships or other government ships, or government aircraft, except where the crew ‘has mutinied and taken control of the ship or aircraft’ (Article 102). Acts committed on board a ship by the crew and directed against the ship itself or against persons or property on the ship are also not within the definition.39

Article 101(1) confines piracy to acts on the high seas or ‘in a place outside the territorial jurisdiction of any State’. An illegal act of violence or depredation committed against a ship whilst in the territorial sea of a state is not piracy; it is armed robbery, murder or another crime under the municipal law of the territorial state committed at sea.40

Article 105 (replicating GCHS Article 19) provides:

On the high seas, or in any other place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft, or a ship taken by piracy and under the control of pirates, and arrest the persons and seize the property on board. The courts of the State which carried out the seizure may decide upon the penalties to be imposed, and may also determine the action to be taken with regard to the ships, aircraft or property, subject to the rights of third parties acting in good faith.

(p. 304) The second part of this provision reflects the maxim pirata non mutat dominium: the rightful owner is not deprived of his title by virtue of acts of piracy relating to his goods.41 Seizures on account of piracy may only be carried out by warships or military aircraft, or other government ships or aircraft authorized to that effect (Article 107). Capture may occur in other circumstances as a consequence of acts of self-defence by an intended victim of piratical action.42

Piracy has often been considered to be something of a historical curiosity.43 In the early part of the twenty-first century, however, interference by pirates operating from bases in Somalia with commercial shipping in the Gulf of Aden has become a matter of significant international alarm.44 The human and economic cost of Somali piracy has resulted in a co-ordinated international effort to combat it. Concerns raised before the International Maritime Organisation (IMO) led to a Memorandum of Understanding to combat the problem on an African level.45 UN Security Council Resolution 1816 utilized the powers of Chapter VII of the UN Charter to authorize foreign military incursions by ‘co-operating states’ into Somali territorial waters over an initial six-month period.46 UN Security Council Resolution 1851 went further still, authorizing the use of military force to prosecute land-based operations against pirates.47 A number of those detained for piracy have been handed over for trial in neighbouring states, notably Kenya.48

(ii)  Other illegal acts committed on the high seas

The use of force against foreign vessels on the high seas may be unlawful and yet may not fall within the definition of piracy. From time to time, however, tribunals, governments, and writers have assimilated certain categories of acts to piracy,49 though the definition in UNCLOS Article 101 would now appear to preclude any such extension. The subject as a whole is dominated by the problem of keeping order beyond the territorial jurisdiction of states and, in particular, of maintaining legal controls in respect of those not identifiable with a state on which responsibility may be placed. Thus Hall(p. 305) considered piracy to include acts done ‘by persons not acting under the authority of any politically organized community, notwithstanding that the objects of the persons so acting may be professedly political’.50

(iii)  Actions by insurgents at sea

Ships controlled by insurgents may not, without recognition of belligerency, exercise belligerent rights against the shipping of other states. Forcible interference of this kind is unauthorized by law and may be resisted. It is very doubtful that it is correct to characterize such acts as piracy:51 UNCLOS Article 101(a) covers only acts committed ‘for private ends’.52 However, it may be lawful to punish acts constituting murder, robbery, and so on—carried out ultra vires by insurgents.53 Opinions which favour the treatment of insurgents as such as ‘pirates’ are surely incorrect,54 save perhaps in circumstances where insurgents attack foreign flagged private vessels in international waters, a conclusion reached not only from the plain words of the definition in Article 101, but from the general prohibition in international humanitarian law on attacks upon civilians.55

(iv)  Acts committed with the authority of a lawful government

Illegal attacks on or seizures of innocent merchant ships by warships or government ships result in the responsibility of the flag state, but the offending ships do not become pirate ships. This was the basis for the older practice of privateering, in which a private ship authorized by a belligerent to act in its service, was not treated as piratical, even if acts of violence were committed against neutral ships. In the latter case the belligerent was responsible as principal.56

Guilfoyle’s conclusion is persuasive:

The test of piracy lies not in the pirate’s subjective motivation, but in the lack of public sanction for his or her acts. This is why vessels on military or government service, absent the revolt of the crew, cannot, by definition, be pirate vessels. To claim that a political motive can exclude an act from the definition of piracy is to mistake the applicable concept of ‘public’(p. 306) and ‘private’ acts. The essence of a piratical act is that it neither raises ‘the immunity which pertains to state or governmental acts’ nor engages state responsibility.57

(v)  Politically motivated acts by organized groups

Harassing operations by organized groups deploying forces on the high seas may have political objectives,58and yet be neither connected with insurgency against a particular government nor performed by agents of a lawful government. Ships threatened by such activities may be protected, and yet the aggressors not be regarded as pirates. However certain municipal courts have demonstrated flexibility in attributing private ends to prima facie political acts.59

(vi)  Unrestricted submarine warfare

The term ‘piracy’ has been employed on occasion to describe acts by ships acting on the orders of a recognized government ‘which are in gross breach of International Law and which show a criminal disregard of human life’.60 By the 1937 Nyon Agreement61 eight states agreed on collective measures ‘against piratical acts by submarines’ with regard to attacks on merchant ships in the Mediterranean during the Spanish Civil War, in effect creating an early species of naval exclusion zone.62 The acts were stated to be ‘acts contrary to the most elementary dictates of humanity which should be justly treated as acts of piracy’. The word ‘piracy’, however, was used purely for rhetorical effect and nothing in the Convention dealt with individual criminal liability.

(E)  Other Exceptions to the Principle of The Freedom of the High Seas

(i)  The right of approach in time of peace63

To maintain order on the high seas, it is necessary to provide for an approach by warships in order to verify the identity and nationality of ships. Such a right of approach(p. 307) (droit d’approche;enquéte ou vérification du pavillon;reconnaissance) is recognized by customary law, though it is not mentioned expressly in UNCLOS Part VII. The right of approach exists in all circumstances, but does not extend to the actual examination of papers or seizure of the vessel.

(ii)  Visit, search, and seizure in time of peace64

There is no general power of police exercisable over foreign merchant ships on the high seas, and the occasions on which ships can be visited and seized by warships in time of peace are limited.65 Early British and American jurisprudence refused to admit a right of visit in the case of ships suspected of taking part in the slave-trade,66 and, apart from piracy, the right could only exist on the basis of treaty or if a ship refused to show its flag.

The legal regime of high-seas freedom has met with a number of threats. Apart from attempts to extend the concept of piracy, claims to a right of self-defence on the high seas constitute another source of instability. A further source of confusion lies in the definition of the right of approach or verification of flag. It was realized that the right of visit could be abused and that there must be reasonable ground for suspicion, for example a refusal by a ship to hoist a flag.67

This has been codified in UNCLOS Article 110,68 which provides as follows:

  1. 1.  Except where acts of interference derive from powers conferred by treaty, a warship which encounters on the high seas a foreign ship, other than a ship entitled to complete immunity in accordance with articles 95 and 96, is not justified in boarding it unless there is a reasonable ground for suspecting that:

    1. (a)  the ship is engaged in piracy;

    2. (b)  the ship is engaged in the slave trade;

    3. (c)  the ship is engaged in unauthorized broadcasting, and the flag state of the warship has jurisdiction under article 109;

    4. (d)  the ship is without nationality;

    5. (e)  though flying a foreign flag or refusing to show its flag, the ship is, in reality, of the same nationality as the warship.

(p. 308) The modalities of the exercise of jurisdiction over foreign ships on the high seas are spelt out in Article 110(2) to (5).

Despite the broad range of circumstances in which a warship may exercise the right of visit on the high seas, UNCLOS appears to limit the circumstances in which seizure may occur, expressly providing for such a right only with respect to pirate ships under Article 105 and ships engaged in unauthorized broadcasting under Article 109(4). A right of search and seizure with respect to the slave trade operates under a separate sui generis set of treaty obligations.69 In an even more restrictive vein, UNCLOS Article 108(1) provides that states must co-operate in the suppression of the trafficking of narcotics and illicit drugs on the high seas, but does not expressly provide a right of seizure, or even a right of visit.

The matter is most complicated when considering stateless vessels. Article 110(1)(d) provides a right of visit but is silent on seizure. Guilfoyle identifies two schools of practice.70 The first, adopted by the US and in certain circumstances the UK, is that a stateless vessel enjoys the protection of no state, and as such may be subject to the jurisdiction of any.71 The second is that some further jurisdictional nexus is required to convert a right of visit into a right of seizure, a position more consistent with existing treaty practice.

The act of boarding, even when ‘reasonable ground’ for boarding exists, is a privilege, and under UNCLOS Article 107, if no act justifying the suspicions has been committed by the ship boarded, there is strict liability, and the flag state of the warship must compensate for ‘any loss or damage’.72 In its commentary the ILC stated that the severe penalty ‘seems justified in order to prevent the right of visit being abused’.73

(iii)  The right of self-defence

The claim to visit and seize vessels on the high seas may take the form of a ‘security zone’, a ‘defence zone’, or a ‘neutrality zone’; the legality of these zones has been considered in chapter 11. Quite apart from claims to contiguous and other zones, however, some states have asserted a right to detain vessels on the ground of security or self-defence.74 Nevertheless the legal basis of such a right, in the absence of an attack on other shipping by the vessel sought to be detained, is lacking. In the present context(p. 309) it is significant that the ILC, and the majority of states, do not accept the legality of security zones and that states are unlikely to regard an ambulatory exercise of a right of (anticipatory) self-defence with any favour.75 Similarly, UNCLOS Part VII contains no express right of self-defence.

(iv)  Blockade and contraband

In time of war the exercise of belligerent rights will be justified and may take the form of a blockade of the enemy’s ports and coast. Enforcement may take place on the high seas adjoining the coast, and neutral merchant ships may be confiscated if they attempt to break the blockade. The right of visit, search, and capture may be exercised against neutral ships or aircraft carrying contraband or engaged in acts of non-neutral service.76 Self-evidently, a blockade which is illegal under international law will not support a right of visit, search, and capture. A controversial example of the right of visit, search, and capture in order to preserve the integrity of a blockade occurred in relation to the Mavi Marmara,77 a passenger vessel carrying humanitarian aid and construction materials which attempted to breach the Israeli–Egyptian blockade of the Gaza Strip in May 2010. The matter was complicated in that Hamas, the target of the blockade, was a non-state actor and the blockade was in aid of a non-international armed conflict.78 Whilst still on the high seas, the flotilla was intercepted by the Israeli Navy, and boarded by Israeli commandos, resulting in the deaths of nine civilians and injury to several dozen more. Several Israeli soldiers were also injured. An investigation by a UN Human Rights Commission fact-finding mission concluded that as the blockade itself was illegal under international law due to the humanitarian crisis that had developed in Gaza, so too was Israel’s visit, search, and capture of the Mavi Marmara79 and that, even if the blockade could be considered legal, the disproportionate force exercised by Israeli forces rendered its exercise of the right unlawful.80 In contrast, the Palmer Report, commissioned by the United Nations Secretary-General, concluded that the blockade was lawful but the use of force excessive.81

(p. 310) (v)  The right of hot pursuit82

Although a state may not, with certain exceptions, enforce its laws on the high seas, it may continue on the high seas a pursuit validly commenced in the territorial sea or contiguous zone (or by extension the EEZ) and if it apprehends the suspect vessel, may arrest it on the high seas. The right of hot pursuit, and its rationale, was expressed by Hall as follows:

The reason for the permission seems to be that pursuit under these circumstances is a continuation of an act of jurisdiction which has been begun, or which but for the accident of immediate escape would have been begun, within the territory itself, and that it is necessary to permit it in order to enable the territorial jurisdiction to be efficiently exercised.83

This statement remains a neat encapsulation of the concept, despite its considerable geographical extension beyond the territorial sea.

In its present form hot pursuit had appeared in Anglo-American practice in the first half of the nineteenth century, but it was not until the Hague Codification Conference of 1930 that there was sufficient evidence of general recognition by states. This provided the basis for the draft article adopted by the ILC,84 which, with some amendment, became GCHS Article 23, now UNCLOS Article 111(1).85 Hot pursuit may be undertaken when the authorities of the coastal state have good reason to believe that a foreign ship has violated applicable laws and regulations of that state. Such pursuit must be commenced when the 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 and may only be continued outside that zone if the pursuit has not been interrupted.

Article 111(2) applies the right of hot pursuit mutatis mutandis to violations of the laws of the territorial state in the EEZ or the continental shelf, including safety zones around continental shelf installations. Under Article 111(3) the right of hot pursuit is exhausted as soon as the ship pursued enters the territorial waters of another state, whether or not the flag state. Article 111(4) stipulates the conditions under which hot pursuit may commence, requiring the pursuing ship to confirm that the pursued ship—or any craft using the pursued ship as a mother ship—is within its territorial waters, contiguous zone or EEZ before giving chase. It further requires that a visual or auditory signal to stop (the proverbial ‘shot across the bow’) is given prior to commencing pursuit.86 Under Article 111(5) only military or clearly identifiable government ships or aircraft are capable of giving hot pursuit. Under Article 111(8), if it turns out(p. 311) that the right of hot pursuit has been exercised mistakenly, the ship and its owners must be compensated for loss or damage which may have resulted.

(F)  Restrictions by Treaty

Treaties conferring powers of visit and capture beyond those permitted by customary law relate to a variety of subject-matter. Great Britain was a party to numerous bilateral treaties after 1815 concerning repression of the slave-trade; in 1841 the Treaty of London87 provided that warships with special warrants could search, detain, or send for trial suspected merchant ships flying the flags of contracting states. The General Act for the Repression of the Slave Trade of 1890 provided for a limited right of search of suspected vessels in a defined zone.88 The General Act was in major part abrogated as between parties to the Treaty of St Germain-en-Laye,89 and the Slavery Conventions of 192690 and 195691 do not provide for visit, search, and seizure: a right of visit is provided for, however, in GCHS Article 23 and UNCLOS Article 110. Mutual powers of visit and search are conferred by bilateral treaties the parties to which are concerned to conserve fish stocks, to control smuggling, or to repress certain aspects of the trade in arms.92

The Convention for the Protection of Submarine Cables of 1884, Article 10, confers the right to stop and verify the nationality of merchant ships suspected of breach of the treaty.93 GCHS Articles 26 to 29 do not refer to such a right, but it was not intended to supersede the Convention of 1884; the same is true of UNCLOS Article 311(2). States have also been willing to agree by treaty on the mutual exercise of hot pursuit.94

3.  Jurisdiction Over Ships on the High Seas

(A)  The Decision in the Lotus

UNCLOS affirms the general principle enunciated by the Permanent Court in the Lotus:

Vessels on the high seas are subject to no authority except that of the State whose flag they fly. In virtue of the principle of the freedom of the seas, that is to say, the absence of any(p. 312) territorial sovereignty upon the high seas, no State may exercise any kind of jurisdiction over foreign vessels upon them.95

Thus UNCLOS Article 92(1) provides that ‘[s]hips shall sail under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or in these articles, shall be subject to its exclusive jurisdiction on the high seas’.96 Article 97(1) provides:

In the event of a collision or of any other incident of navigation concerning a ship on the high seas, involving the penal or disciplinary responsibility of the master or of any other person in the service of the ship, no penal or disciplinary proceedings may be instituted against such persons except before the judicial or administrative authorities either of the flag State or of the State of which such person is a national.

This provision negatives the decision in the Lotus that there could be concurrent penal jurisdiction in respect of collisions on the high seas. In its commentary on the relevant draft article, the ILC commented:

This judgement, which was carried by the President’s casting vote after an equal vote of six to six, was very strongly criticized and caused serious disquiet in international maritime circles. A diplomatic conference held at Brussels in 1952 disagreed with the conclusions of the judgement. The Commission concurred…It did so with the object of protecting ships and their crews from the risk of penal proceedings before foreign courts in the event of collision on the high seas, since such proceedings may constitute an intolerable interference with international navigation.97

(B)  Jurisdiction Over Oil Pollution Casualties

States may claim special zones of jurisdiction over areas of high seas adjacent to their coasts in order to regulate activities of various kinds: the contiguous zone is an example. But new problems requiring regulation may arise. When the Torrey Canyon, registered in Liberia, ran aground off the Cornish coast in 1967 and lost some 60,000 tons of oil, the British government ordered that the wreck be bombed, aft er salvage attempts had failed. Even so, British and French coasts received serious pollution. Such remedial action may be justified on the ground of necessity (but not of self-defence).98 This led to the conclusion of an International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties.99 The use of protective measures is now recognized by UNCLOS Article 221(1), which preserves the right of states ‘to(p. 313) take and enforce measures beyond the territorial sea proportionate to the actual or threatened damage to protect their coast line or related interests, including fishing, from pollution or threat of pollution following upon a maritime casualty…which may reasonably be expected to result in major harmful consequences’.100

(C)  Unauthorized Broadcasting101

The Council of Europe sponsored the conclusion in 1965 of an Agreement for the Prevention of Broadcasts Transmitted from Stations outside National Territories.102 The Convention focuses on acts supporting ‘pirate’ broadcasting committed within the national jurisdiction of states parties and does not authorize interference with foreign ships, aircraft, or nationals. By contrast UNCLOS provides for broad bases of jurisdiction and powers of arrest in respect of ‘the transmission of sound radio or television broadcasts from a ship or installation on the high seas intended for reception by the general public contrary to international regulations, but excluding the transmission of distress calls’ (Articles 109 to 110).103

(D)  Drug Interdiction

In respect of certain varieties of transnational crime, sui generis treaty regimes provide states with high-seas boarding rights.104 One of these is the interdiction of drug traffickers.105 Whilst UNCLOS Article 27(1)(d) provides a coastal state with jurisdiction over a foreign ship suspected of carrying illicit narcotics within its territorial sea, waiting for drug runners to enter the territorial sea before exercising a right of arrest may not be practicable. Article 108(1) provides a minor exhortation to states to co-operate in suppressing the trafficking of illicit narcotics on the high seas. Article 108(2), however, provides only that any state ‘with reasonable grounds for believing’ that a vessel sailing under its own flag is engaged in the trafficking of illicit narcotics ‘may request’ the co-operation of other states, leaving unaddressed the (much more likely) situation in which a state suspects a ship sailing under the flag of another state to be carrying such substances.106

(p. 314) In this respect UNCLOS is supplemented by the UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (Narcotics Convention).107 Article 17(1) requires states parties to co-operate to the fullest extent possible to suppress the carriage of drugs by sea, in conformity with the law of the sea.108Article 17(2) and (3) provides that a party with ‘reasonable grounds’ to suspect that a vessel flying the flag of another party and ‘exercising freedom of navigation’ may request ‘confirmation of registry and…authorization to take appropriate measures’.109 If consent is granted, Article 17(4) provides that the flag state may authorize the inquiring state to board and search the vessel and take appropriate action.110 The inclusion of the words ‘exercising freedom of navigation’ in Article 17(3) arguably encompasses all vessels outside territorial waters, including in the EEZ.111

(E)  Migrant Smuggling

Migrant smuggling is the unlawful movement of persons with a view to evading immigration control;112 it frequently involves maritime transport often in hazardous conditions. As defined by the Migrant Smuggling Protocol, it involves the procurement of a person’s entry into a state ‘of which the person is not a national or permanent resident’ for personal gain without complying with municipal migration laws.113

The Migrant Smuggling Protocol principally provides for the criminalization of the movement of persons across international borders (Articles 3 and 6), but also includes high seas interdiction provisions based on Article 17 of the Narcotics Convention. Article 7 of the Protocol provides that ‘States Parties shall cooperate to the fullest extent possible to prevent and suppress the smuggling of migrants by sea, in accordance with the international law of the sea’. Article 8(2) permits a state party with a reasonable suspicion that a ship flying the flag of another state party is smuggling migrants to request the permission of the flag state to take appropriate measures, in response to which the flag state may authorize boarding, search or seizure as it sees fit.114 Article 8(5) expressly preserves the jurisdiction of the flag state. Where the(p. 315) vessel in question appears stateless, Article 8(7) allows the interdicting state to board and search the vessel if there are reasonable grounds to suspect that it is engaged in migrant smuggling. If evidence confirming the suspicion is found, the interdicting state may take appropriate measures in accordance with relevant international and municipal law. This perpetuates the ambiguity regarding the exercise of prescriptive and enforcement jurisdiction over stateless vessels.115

Unlike the Narcotics Convention, however, the Protocol does not expressly permit the interdicting state to exercise prescriptive jurisdiction over an intercepted vessel. The jurisdiction of the flag state will prevail unless it permits the interdicting state to prosecute.116

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