The High Seas, and the Duties of a Flag State

In one line

Beyond every zone the sea belongs to nobody and is open to everybody, and the only State that can control a ship there is the State whose flag it flies.

In exam wording: Part VII of the United Nations Convention on the Law of the Sea 1982 applies to all parts of the sea not included in the exclusive economic zone, the territorial sea or internal waters, or in archipelagic waters; article 87 states the freedoms of the high seas; article 89 provides that no State may validly purport to subject any part of the high seas to its sovereignty; and articles 91 to 94 establish the nationality of ships, the exclusive jurisdiction of the flag State and the duties of the flag State with respect to administrative, technical and social matters.

The provisions

Article 86: application. Part VII applies 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. The article does not entail any abridgement of the freedoms enjoyed by all States in the exclusive economic zone under article 58.

Article 87: freedom of the high seas. The high seas are open to all States, whether coastal or land-locked. The freedom 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 laid down in section 2; and
• freedom of scientific research, subject to Parts VI and XIII.

Paragraph 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 the Convention with respect to activities in the Area.

The word "inter alia" matters: the list is not exhaustive.

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.

Article 90: every State, whether coastal or land-locked, has the right to sail ships flying its flag on the high seas.

Article 91: nationality of ships. Every State shall 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. There must exist a genuine link between the State and the ship.

Article 92: status of ships. 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. 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.