The High Seas

Article 88. The high seas shall be reserved for peaceful purposes.

Article 89. No State may validly purport to subject any part of the high seas to its sovereignty.

Flag State jurisdiction

If nobody is sovereign, somebody must have jurisdiction, and the answer is the flag.

Article 90. Every State, whether coastal or land-locked, has the right to sail ships flying its flag on the high seas. That is why a landlocked State can have a merchant fleet.

Article 91(1). Every State shall fix the conditions for the grant of its nationality to ships, for their registration, and for the right to fly its flag. Ships have the nationality of the State whose flag they are entitled to fly. There must exist a genuine link between the State and the ship.

That genuine link is the maritime cousin of the doctrine in [Nationality], and the Convention states it without saying what follows if it is absent, which is the flag of convenience problem below.

Article 92(1). Ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or in the 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. Article 92(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 sets out the duties of the flag State: it shall effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag, maintain a register, and assume jurisdiction under its internal law over the master, officers and crew in respect of administrative, technical and social matters, together with duties as to seaworthiness, manning, labour conditions, signals, communications and the prevention of collisions.

Article 97, met in [State Jurisdiction], is the exception to the Lotus result: in the event of a collision or any other incident of navigation on the high seas involving the penal or disciplinary responsibility of the master or another person in the service of the ship, no penal or disciplinary proceedings may be instituted except before the authorities of the flag State or the State of which the person is a national.

Piracy

The oldest exception to exclusive flag State jurisdiction and the classic instance of universal jurisdiction.

Article 100. All States shall cooperate to the fullest possible extent in the repression of piracy on the high seas or in any other place outside the jurisdiction of any State.

Article 101. Piracy consists of:

(a) 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 (i) on the high seas, against another ship or aircraft, or against persons or property on board, or (ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;

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

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

Four elements are worth isolating, because problem questions turn on them.

For private ends. An attack for political ends is not piracy under the Convention. That is why terrorism at sea had to be dealt with by a separate treaty.

Two ships. The acts must be directed by the crew or passengers of one ship against another ship. A mutiny or a hijack by people already on board is not piracy, though article 102 brings in a warship or government ship whose crew has mutinied and taken control.

On the high seas or in a place outside the jurisdiction of any State. An identical attack inside the territorial sea is armed robbery under the coastal State's law, not piracy.

A private ship or aircraft. A warship acting as such is not a pirate.

Article 105. 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.

Article 106 makes a State liable to the flag State for any loss or damage caused by a seizure made without adequate grounds, and article 107 confines seizure to warships, military aircraft, or other ships or aircraft clearly marked and identifiable as being on government service and authorised to that effect.

Immunities, assistance, and the pirate ship itself

Article 95. Warships on the high seas have complete immunity from the jurisdiction of any State other than the flag State. Article 96 gives the same complete immunity to ships owned or operated by a State and used only on government non-commercial service. Those two provisions are why the right of visit in article 110 is expressed as applying to a foreign ship other than one entitled to complete immunity under articles 95 and 96.

Article 93 preserves the position of ships employed on the official service of the United Nations, its specialised agencies or the International Atomic Energy Agency and flying their flag.

Article 98, duty to render assistance. Every State shall require the master of a ship flying its flag, in so far as he can do so without serious danger to the ship, the crew or the passengers, to render assistance to any person found at sea in danger of being lost, to proceed with all possible speed to the rescue of persons in distress if informed of their need of assistance, and after a collision to render assistance to the other ship, its crew and passengers. Every coastal State shall promote the establishment and maintenance of an adequate and effective search and rescue service. It is the oldest humanitarian obligation in the law of the sea and the one most often invoked today.

Article 103 defines a pirate ship or aircraft as one intended by the persons in dominant control to be used for committing an act referred to in article 101, or which has been used to commit such an act while it remains under their control. Article 104 provides that a ship or aircraft may retain its nationality although it has become a pirate ship or aircraft, retention or loss being determined by the law of the State from which the nationality was derived.

Cables, pipelines and the fisheries of the high seas

Article 112 gives all States the right to lay submarine cables and pipelines on the bed of the high seas beyond the continental shelf. Article 113 requires every State to make it a punishable offence for a ship flying its flag or a person subject to its jurisdiction wilfully or through culpable negligence to break or injure a submarine cable or a submarine pipeline in a way liable to interrupt or obstruct communications. Article 114 requires each State to provide that owners of a cable or pipeline who, in laying or repairing it, cause a break or injury to another shall bear the cost of the repairs. Article 115 requires each State to ensure that shipowners who can prove they sacrificed an anchor, a net or other fishing gear to avoid injuring a cable or pipeline are indemnified by its owner, provided they took all reasonable precautionary measures beforehand.

Article 116 gives all States the right for their nationals to fish on the high seas, subject to their treaty obligations, the rights and duties and interests of coastal States provided for in articles 63(2) and 64 to 67, and the provisions of the section. Article 117 imposes on all States 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. Article 118 requires States to cooperate with each other in conservation and management, and States whose nationals exploit identical resources, or different resources in the same area, to enter into negotiations with a view to taking the necessary measures and, as appropriate, to cooperate in establishing subregional or regional fisheries organisations. Article 119 governs the determination of the allowable catch and other conservation measures, requiring the best scientific evidence available and non-discrimination in form or in fact against the fishermen of any State. Article 120 applies article 65, on marine mammals, to the high seas.

Read articles 116 to 120 together and the freedom of fishing looks very different from a freedom. It is a right qualified by treaty obligations, by coastal State interests, and by duties to conserve, to cooperate and to negotiate. Whether those duties have been enough is the criticism at the end of this chapter.

The other exceptions

Article 99, slaves. Every State shall take effective measures to prevent and punish the transport of slaves in ships authorised to fly its flag, and any slave taking refuge on board any ship, whatever its flag, shall ipso facto be free.

Article 108, illicit traffic in narcotic drugs; article 109, unauthorised broadcasting from the high seas.

Article 110, the right of visit. Except where acts of interference derive from powers conferred by treaty, a warship which encounters a foreign ship on the high seas is not justified in boarding it unless there is reasonable ground for suspecting that:

(a) the ship is engaged in piracy; (b) the ship is engaged in the slave trade; (c) the ship is engaged in unauthorized broadcasting and the flag State of the warship has jurisdiction under article 109; (d) the ship is without nationality; or (e) though flying a foreign flag or refusing to show its flag, the ship is in reality of the same nationality as the warship.

If the suspicions prove unfounded and the boarded ship has not committed any act justifying them, it must be compensated for any loss or damage.

Article 111, hot pursuit. The hot pursuit of a foreign ship may be undertaken when the competent authorities of the coastal State have good reason to believe that the ship has violated the laws and regulations of that State. The conditions are strict and are examined constantly.

It must begin inside. 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, and may be continued outside only if the pursuit has not been interrupted. Where the ship is in the contiguous zone, pursuit may be undertaken only for a violation of the rights for the protection of which the zone was established, and the article extends the same scheme to the exclusive economic zone and the continental shelf for violations of the laws applicable there.

A signal must be given. Pursuit may only be commenced after a visual or auditory signal to stop has been given at a distance enabling it to be seen or heard by the foreign ship.

It must be continuous. The right ceases as soon as the ship pursued enters the territorial sea of its own State or of a third State, and it stops if the pursuit is interrupted.

Only public vessels may pursue, and a State is liable for loss or damage where a ship is stopped or arrested outside the territorial sea in circumstances which do not justify hot pursuit.

Land-locked States: Part X

Article 87 opens the high seas to all States, whether coastal or land-locked, and article 90 gives every State the right to sail ships flying its flag. Neither is worth anything to a State with no coast unless it can reach the sea, and Part X of the Convention, articles 124 to 132, is what supplies that.

Article 124, the definitions. A land-locked State means a State which has no sea-coast. A transit State means a State, with or without a sea-coast, situated between a land-locked State and the sea, through whose territory traffic in transit passes. Traffic in transit means the transit of persons, baggage, goods and means of transport across the territory of one or more transit States, with or without trans-shipment, warehousing, breaking bulk or change in the mode of transport, when the passage is only a portion of a complete journey which begins or terminates within the territory of the land-locked State. Means of transport means railway rolling stock, sea, lake and river craft and road vehicles, and, where local conditions so require, porters and pack animals; and the two States may by agreement add pipelines and gas lines and other means.

Article 125, the right. Land-locked States shall have the right of access to and from the sea for the purpose of exercising the rights provided for in this Convention, including those relating to the freedom of the high seas and the common heritage of mankind, and to that end shall enjoy freedom of transit through the territory of transit States by all means of transport.

Article 125(2) is the qualification that matters. The terms and modalities for exercising freedom of transit shall be agreed between the land-locked State and the transit State through bilateral, subregional or regional agreements. And article 125(3) preserves the transit State's position: in the exercise of its full sovereignty over its territory it has the right to take all measures necessary to ensure that the rights and facilities in this Part shall in no way infringe its legitimate interests.

So the right is real and its exercise is negotiated. A land-locked State has a right of access under article 125(1); how that access works is a matter for agreement under 125(2); and the transit State keeps its sovereignty under 125(3).

Article 126, no most-favoured-nation claim. The Convention's provisions, and special agreements on access, establishing rights and facilities on account of the special geographical position of land-locked States, are excluded from the application of the most-favoured-nation clause. That prevents a coastal State with a trade agreement from claiming the transit facilities granted to a neighbour that has no coast, and it should be set beside article I of GATT in [General Principles of International Trade Law], which the exclusion is written against.

Articles 127 to 131, the facilities. Traffic in transit shall not be subject to any customs duties, taxes or other charges except charges levied for specific services rendered, and means of transport in transit shall not be subject to taxes or charges higher than those levied for the use of the transit State's own means of transport (article 127). Free zones or other customs facilities may be provided at ports of entry and exit by agreement (article 128). The States concerned shall cooperate in constructing and improving means of transport where none exist or where existing means are inadequate (article 129), and shall take measures to avoid or eliminate delays or other difficulties of a technical nature in traffic in transit and cooperate towards their expeditious elimination (article 130). And ships flying the flag of land-locked States shall enjoy treatment equal to that accorded to other foreign ships in maritime ports (article 131).

Article 132. The Convention does not entail the withdrawal of transit facilities greater than those it provides which are agreed or granted, nor preclude the grant of greater facilities in future.

Why this belongs in a law course and not in a geography one. Part X is the answer to the question a land-locked State asks about every other Part of the Convention: the freedoms of the high seas, the fisheries, and the common heritage of mankind in [The Common Heritage of Mankind] are all declared to be open to it, and they reach it only through somebody else's territory. Nepal, Bhutan, Afghanistan, Laos and some forty other States are in that position, and the two Indian neighbours among them exercise their access through India under bilateral treaties of transit, which is exactly the machinery article 125(2) contemplates.

A worked example

A cargo ship registered in State JJ, whose register requires no connection with the State and whose owner is a company in State KK, is boarded by a warship of State LL 400 miles from land. The boarding party finds nothing. Later the same ship's crew attack a passing yacht and steal its cargo. Two days after that it is detected fishing inside State MM's exclusive economic zone, flees when signalled, and is caught 150 miles out to sea.

Was the first boarding lawful? Only if article 110 permitted it. A warship may board a foreign ship on the high seas only where there is reasonable ground for suspecting piracy, the slave trade, unauthorised broadcasting where the warship's flag State has jurisdiction under article 109, that the ship is without nationality, or that it is in reality of the same nationality as the warship. If none applied, State LL must compensate for any loss or damage caused, article 110 saying so in terms.

Is the flag of convenience a problem? Article 91 requires a genuine link between the State and the ship, and article 94 requires the flag State to exercise effective jurisdiction and control. But nothing in the Convention lets another State treat the ship as stateless merely because the link is thin, and that gap is the standing criticism of the regime. Article 92(2) deals only with a ship sailing under two flags according to convenience, which may be assimilated to a ship without nationality.

Is the attack on the yacht piracy? Test each element of article 101(a). Illegal acts of violence or depredation: yes. For private ends: yes, if it was robbery rather than a political act. By the crew of a private ship: yes. Directed against another ship on the high seas: yes. So it is piracy, every State may seize under article 105, and the courts of the seizing State may decide the penalties.

Who may prosecute? Any State that seizes, and it need not be the flag State, the victims' State or the State where the yacht was registered. That is universal jurisdiction, and article 105 is its clearest statutory expression.

Was the pursuit from State MM's exclusive economic zone lawful? Under article 111 it may be, provided State MM's authorities had good reason to believe the ship had violated laws applicable in the zone, the pursuit was commenced while the ship was within the zone, a visual or auditory signal to stop was given at a distance enabling it to be seen or heard, the pursuit was continuous and uninterrupted, and it was conducted by a warship or other authorised government vessel. It would have ceased at once had the ship entered the territorial sea of its own State or of a third State.

Change one fact: the attack on the yacht happened six miles from State MM's coast. Then it is not piracy at all, because article 101 requires the acts to be directed on the high seas or in a place outside the jurisdiction of any State. It is armed robbery within State MM's territorial sea, and State MM's own law governs.

Distinctions table

What it does NOT mean

The high seas are not lawless. Article 92 subjects every ship to the exclusive jurisdiction of its flag State, and article 94 imposes real duties on that State.

Freedom of fishing is not unlimited. Article 87(1)(e) makes it subject to the conditions in section 2, which impose conservation duties.

A political attack at sea is not piracy under article 101, because the acts must be committed for private ends.

A hijack from within is not piracy, because two ships are required, subject to article 102 on mutinied warships and government ships.

Hot pursuit cannot begin on the high seas. It must be commenced while the ship is within the pursuing State's internal waters, archipelagic waters, territorial sea, contiguous zone or, for the relevant violations, its exclusive economic zone or continental shelf.

Limits and criticism

The genuine link has no sanction. Article 91 requires it and the Convention says nothing about the consequences of its absence, so open registries persist and flag States that cannot or will not exercise the article 94 duties continue to confer nationality. It is the largest single gap in the Part.

The definition of piracy is too narrow for modern conditions. The private ends requirement excludes politically motivated attacks, and the two-ship requirement excludes hijacks from within, so the acts that most alarm States are outside article 101 and had to be addressed by a separate convention on unlawful acts against the safety of maritime navigation.

Freedom of fishing has been the ruin of the fisheries it protects. A freedom exercised by everyone with no one able to exclude anyone is the classic tragedy of the commons, and the Convention's answer, duties to cooperate and to conserve, depends on agreements that are hard to reach and harder to enforce.

Quick revision

Article 86: the high seas are all parts of the sea not in the exclusive economic zone, territorial sea, internal waters or archipelagic waters. A residual definition.

Article 87: open to all States, coastal or land-locked; freedoms of navigation, overflight, cables and pipelines, artificial islands, fishing and scientific research, inter alia, each subject to other Parts, and exercised with due regard for other States.

Article 88: reserved for peaceful purposes. Article 89: no State may validly purport to subject any part to its sovereignty.

Article 90 right of navigation; 91 nationality of ships and the genuine link; 92 one flag only and exclusive flag State jurisdiction, with a two-flagged ship assimilated to one without nationality; 94 duties of the flag State; 97 penal jurisdiction after a collision confined to the flag State or the State of nationality.

Piracy: 100 duty to cooperate; 101 illegal violence, detention or depredation, for private ends, by a private ship, directed against another ship on the high seas or outside any State's jurisdiction, plus voluntary participation and incitement; 102 mutinied warships; 105 every State may seize and the courts of the seizing State may decide the penalties; 106 liability for seizure without adequate grounds; 107 only warships and authorised government vessels may seize.

Article 99 slaves, and any slave taking refuge on board any ship is ipso facto free; 108 drugs; 109 unauthorised broadcasting.

Article 110, right of visit: boarding only on reasonable ground for suspecting piracy, slave trade, unauthorised broadcasting, statelessness, or that the ship is really of the warship's nationality; compensation if the suspicions were unfounded.

Article 111, hot pursuit: good reason to believe; must begin while the ship is within internal, archipelagic, territorial or contiguous waters, or the zone or shelf for the relevant violations; a signal to stop first; continuous and uninterrupted; ceases on entry into the territorial sea of its own or a third State; only public vessels may pursue.

Test yourself

1. What are the freedoms of the high seas?

Article 87(1) provides that the high seas are open to all States, whether coastal or land-locked, and that freedom of the high seas comprises, inter alia, freedom of navigation, freedom of overflight, freedom to lay submarine cables and pipelines subject to Part VI, freedom to construct artificial islands and other installations permitted under international law subject to Part VI, freedom of fishing subject to the conditions in section 2, and freedom of scientific research subject to Parts VI and XIII. Article 87(2) requires them to be exercised with due regard for the interests of other States and for the rights relating to activities in the Area. The list is not exhaustive and every one of the last four is expressly qualified.

2. Who has jurisdiction over a ship on the high seas?

Its flag State, exclusively. Article 92(1) provides that ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or in the Convention, shall be subject to its exclusive jurisdiction on the high seas. Article 91 provides that ships have the nationality of the State whose flag they are entitled to fly and requires a genuine link between the State and the ship, and article 94 imposes on the flag State the duty effectively to exercise its jurisdiction and control in administrative, technical and social matters.

3. Define piracy and identify the elements that most often defeat a charge.

Article 101 defines piracy as 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 aircraft and directed, on the high seas, against another ship or aircraft or persons or property on board, or against a ship, aircraft, persons or property in a place outside the jurisdiction of any State, together with voluntary participation in the operation of a pirate ship with knowledge and any act of inciting or intentionally facilitating such acts. The elements that most often defeat a charge are the requirement that the acts be for private ends, which excludes politically motivated attacks, the requirement of two ships, which excludes a hijack or mutiny by those already on board subject to article 102, and the requirement that the acts occur on the high seas or outside any State's jurisdiction, which excludes an identical attack in a territorial sea.

4. Who may seize a pirate ship and who may try the pirates?

Article 105 provides that 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, and that the courts of the State which carried out the seizure may decide upon the penalties to be imposed and the action to be taken with regard to the ships and property, subject to the rights of third parties acting in good faith. Article 107 confines the seizure to warships, military aircraft, or other ships and aircraft clearly marked and identifiable as being on government service and authorised to that effect, and article 106 makes a State liable to the flag State for loss or damage caused by a seizure made without adequate grounds.

5. State the conditions of hot pursuit.

The coastal State's competent authorities must have good reason to believe the foreign ship has violated its laws and regulations. The pursuit must be commenced while the ship or one of its boats is within the internal waters, archipelagic waters, territorial sea or contiguous zone of the pursuing State, and, for violations of the laws applicable there, within its exclusive economic zone or on its continental shelf; where the ship is in the contiguous zone the pursuit must be for a violation of the rights the zone protects. A visual or auditory signal to stop must first be given at a distance enabling it to be seen or heard. The pursuit must be continuous and uninterrupted, and it ceases as soon as the ship enters the territorial sea of its own State or of a third State. Only warships or military aircraft, or other authorised government ships or aircraft, may pursue, and the State is liable for loss or damage where a ship is stopped or arrested outside the territorial sea in circumstances which do not justify hot pursuit.

6. What is the flag of convenience problem?

Article 91 provides that every State fixes the conditions for granting its nationality to ships and that there must exist a genuine link between the State and the ship, and article 94 requires the flag State to exercise effective jurisdiction and control over ships flying its flag. Some States operate open registries requiring no real connection and exercise little supervision, so ships sail under flags whose States cannot or will not perform the article 94 duties. The Convention creates no sanction: it does not say that another State may treat such a ship as stateless, and article 92(2) permits that only where a ship sails under two or more flags according to convenience. The consequence is that the one jurisdiction the high seas regime relies on is, for a significant part of the world fleet, nominal.