Jump to Content Jump to Main Navigation
Max Planck Encyclopedia of Public International Law [MPEPIL]

High Seas

Tullio Treves

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 13 December 2018

High seas — UNCLOS (UN Convention on the Law of the Sea) — Ships / vessels

Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.

A.  Development of Rules

The notion of the high seas took shape when the claims to sovereignty over vast expanses of sea advanced by various powers from the end of the 15th to the 17th century succumbed to the general acceptance of the idea that a State’s sovereignty was limited to a narrow band of sea adjacent to the coast (see also Jurisdiction of States). The century-old controversy between the ideas of mare clausum (Selden) and mare liberum (Grotius), as well as the clash between the interests of the States reached its conclusion during the 18th century with the triumph of the Grotian idea of the freedom of the seas beyond territorial waters (see also Law of the Sea, History of).

The claim to freedom of innocent navigation which had been advanced during the era of mare clausum became restricted in the territorial sea and gave rise to the rule on innocent passage. Beyond the limits of the territorial sea, in what came to be known as the high seas, a more general freedom prevailed, even though navigation was its most important component (Navigation, Freedom of). This freedom was negative in nature as it was the reflection of the absence of territorial sovereignty on the high seas.

The notion of the high seas, together with the freedoms and exceptions applicable therein were codified in the rules of the Geneva Convention on the High Seas of 29 April 1958 (‘High Seas Convention’), which, by and large, still correspond to customary international law. Two important developments have nonetheless occurred since 1958 which modify the relative importance of these rules. First, the spatial dimension of the high seas has shrunk because of the extension of State sovereignty over various areas of the seas and because of the creation of exclusive economic zones (Exclusive Economic Zone; ‘EEZ’): this is clearly reflected in the United Nations Convention on the Law of the Sea of 10 December 1982 (‘UN Convention on the Law of the Sea’; see also Law of the Sea). Second, the development, as a consequence of technological advances, of new activities at sea distinct from navigation and fishing has given a new importance not only to the rules on the preservation of the marine environment, but also to those provisions intended to accommodate different activities on the high seas (Marine Environment, International Protection; Marine Living Resources, International Protection).

B.  The UN Convention on the Law of the Sea and the High Seas

The UN Convention on the Law of the Sea deals with the high seas in Part VII. Section 1 (the general provisions) is not far from the 1958 High Seas Convention. It lists the freedoms of the high seas and sets out rules concerning compatibility between activities and possibilities of interference with foreign ships on the high seas. It also contains rules on the laying of cables and pipelines. Some rules set out in it do not apply exclusively to the high seas. They concern the nationality of ships, the status of ships, and the duties of the flag State (see also Flag of Ships).

Part VII Section 2 UN Convention on the Law of the Sea covers the conservation and management of the living resources of the high seas. It is substantially different from the Geneva 1958 Convention on Fishing and Conservation of the Living Resources of the High Seas. It contains only four articles setting out obligations of co-operation and conservation (see also Co-operation, International Law of). Negotiators at the Third UN Conference on the Law of the Sea of 1973 (Conferences on the Law of the Sea)—more concerned in adopting the new notion of the EEZ and its regime—did not pay much attention to the high seas and in particular to the conservation and management of its resources. However, the fact that coastal States, because of their exclusive rights to the living resources in the exclusive economic and fishery zones (Fishery Zones and Limits), have excluded long-distance fishermen from these zones—in which more than 80% of the world’s fisheries are located—has made fishing in the high seas and the management and conservation of living resources of the high seas, as well as the protection of biodiversity and of the environment in general, the focus of attention of States during the last decade.

C.  Spatial Limits

According to Art. 1 High Seas Convention, ‘[t]he term “high seas” means all parts of the sea that are not included in the territorial sea or in the internal waters of a State’. The situation in current international law is reflected in the UN Convention on the Law of the Sea. Under Art. 86 UN Convention on the Law of the Sea, that avoids defining the high seas, the high seas provisions ‘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’. As archipelagic waters are waters upon which the State that has drawn archipelagic baselines extends its sovereignty, the restriction relating thereto in Art. 86 UN Convention on the Law of the Sea corresponds to the same principle as that governing the territorial sea. As regards the economic zone, coastal States have only those sovereign rights and jurisdiction which are specifically directed to economic exploitation, protection of the environment, and marine research (Marine Scientific Research). The waters corresponding to the EEZ might thus in theory be seen as maintaining their character as high seas, as some States held during the negotiations. The UN Convention on the Law of the Sea sets a different rule, however. Under this rule the EEZ has a specific legal regime that includes the application to it of a specified group of the freedoms of the high seas, but admits no presumption of a residual rule of freedom (Arts 55, 58–59 UN Convention on the Law of the Sea).

The spatial limits of the high seas are variable in time. They depend on State action concerning the limits of the territorial seas and the institution of archipelagic waters and of EEZs. As regards the waters adjacent to Antarctica, the States Parties to the Antarctic Treaty ([signed 1 December 1959, entered into force 23 June 1961]; 402 UNTS 71) have agreed not to assert new claims of territorial sovereignty, nor to enlarge existing ones. This precludes the institution of EEZs. Since the old claims which may extend to sea areas are suspended in their effect by the Antarctic Treaty, as long as the Antarctic Treaty is in force all waters adjacent to the Antarctic are either high seas or should be assimilated to the high seas.

The exercise by the coastal State of sovereign rights on the continental shelf is without prejudice to the nature of the superjacent waters as high seas. When an EEZ has been proclaimed, this concerns, however, only the waters above the part of the continental shelf outside the 200-nautical-mile limit. Similarly, unless an EEZ has been created, the institution of a contiguous zone on waters beyond the limits of the territorial sea does not influence the nature of these waters as high seas. The fact that the seabed beyond national jurisdiction has been proclaimed the common heritage of mankind, and that under the UN Convention on the Law of the Sea it is under the regime of the international seabed area, also will not influence the status of the superjacent waters as high seas (Art. 135 UN Convention on the Law of the Sea).

It may be questioned whether the notion of high seas includes the seabed and subsoil. That the high seas are defined by the absence of territorial sovereignty or jurisdiction yields an answer in the affirmative, which is not changed by the existence of sovereign rights on the continental shelf or by the regime of the international seabed area. These rights and the regime are specifically aimed at the exploration and exploitation of resources and consequently do not impinge on the residuary freedom of all States as regards other activities on the seabed.

D.  Freedom of the High Seas

10  Article 87 (1) UN Convention on the Law of the Sea sets forth a list of freedoms of the high seas. It comprises freedom of navigation; overflight; laying submarine cables and pipelines; constructing artificial islands, installations, and structures; fishing; and scientific research. While the freedoms to construct artificial islands and installations, of fishing, and of scientific research do not apply in the EEZ, the other freedoms mentioned, according to Art. 58 (1) UN Convention on the Law of the Sea, apply also to this zone, even though the freedom of laying cables and pipelines on the continental shelf is subject to limitations in Art. 79 UN Convention on the Law of the Sea. In stating that ‘the freedoms referred to in article 87 of navigation and overflight and of the laying of submarine cables and pipelines’ apply also in the EEZ, Art. 58 (1) UN Convention on the Law of the Sea adds the mention of

other internationally lawful uses of the sea related to these freedoms, such as those associated with the operation of ships, aircraft and submarine cables and pipelines, and compatible with the other provisions of this Convention.

This sentence was introduced to make a limited and not entirely clear opening to include freedom to conduct military activities or some of them in the EEZs.

11  The list in Art. 87 (1) UN Convention on the Law of the Sea is, as the similar one in Art. 2 High Seas Convention, non-exhaustive, as it is introduced by the expression ‘inter alia’. This has the consequence that, on the high seas, the presumption is that the rule of freedom applies not only to activities mentioned in Art. 87 UN Convention on the Law of the Sea, but also to new or unnamed activities.

12  The exercise of the freedoms of the high seas presupposes that States engage in activities on the high seas through objects linked to them by a particular connection. These objects are ships, and the connection is the flying of the States’ flag. The international legal rule, drawn from the high seas being a space in which no sovereignty extends and in which States engage in activities through ships flying their flag, provides that States have the right to claim non-interference with their ships by other States on the high seas so that the flag State, in principle, has the monopoly of the exercise of sovereign power on its ships. This is the essence of the freedom of the high seas.

13  This rule is reinforced by two corollaries. The first is that ‘[n]o State may validly purport to subject any part of the high seas to its sovereignty’ (Art. 89 UN Convention on the Law of the Sea). The second is that the rule on high seas freedom makes no distinction between coastal and land-locked States. This aspect is linked to the right of land-locked States to have ships flying their flag—a right clearly recognized since the Declaration Recognising the Right to a Flag of States Having No Sea-Coast of 20 April 1921.

14  The basic rule on the freedom of the high seas is subject to a complex system of exceptions, which may be divided into three groups. The first includes rules permitting various forms of interference with the activities conducted under a State’s flag on the high seas (see paras 15–29 below). The second includes rules for the accommodation of activities conducted by different States on the high seas (see paras 30–39 below). The third includes obligations concerning especially the rational management of the living resources and the protection of the marine environment of the high seas (see paras 40–42 below).

E.  Rul]es on Interference

1.  Means, Forms, Subjects

15  According to customary international law, interference with the exercise of high seas freedoms is reserved to warships and to State aircraft and also, under Arts 107, 110, and 111 UN Convention on the Law of the Sea to ‘other ships or aircraft clearly marked and identifiable as being on Government service and authorized to that effect’. Moreover, warships (Art. 95 UN Convention on the Law of the Sea), as well as ‘[s]hips owned or operated by a State and used only on government non-commercial service’ (Art. 96 UN Convention on the Law of the Sea; State Ships) have complete immunity from the jurisdiction of any State other than the flag State (see also State Immunity). Thus, the exercise of the freedom of the high seas through those ships cannot be interfered with by other States.

16  International law specifies and regulates some forms of interference. One of these forms of interference is the right of visit, which consists in the right to board a ship for the purpose of verifying its right to fly its flag and which may include examinations on board beyond the checking of documents (Art. 110 UN Convention on the Law of the Sea; Ships, Visit and Search). The rules on other forms of interference such as seizure or arrest are less detailed and open the way to a variety of interpretations, which may depend on maritime practice and domestic legal systems. Other forms of interference are even less specific and left to the interplay of the coastal State’s discretion and other principles of international law: the ‘control’ coastal States may exercise in the contiguous zone is an example.

17  The States entitled to interfere with the exercise of high seas freedoms by other States range from all States, when the rules permitting interference protect fundamental interests of the international community, to a specific State, when the interest protected—although fundamental enough to allow for an exception to the exercise of high seas freedoms—is restricted to a single State, as in the case of hot pursuit.

2.  Cases of Interference under General International Law

18  According to general international law, all States are entitled to exercise the right of visit on the high seas regarding ships engaged in piracy or in slave trade (Slavery). Article 22 High Seas Convention adds to these the case of the ship that, though flying a foreign flag or refusing to show its flag, is in fact of the same nationality as a warship. Article 110 (1) (d) UN Convention on the Law of the Sea adds further the case of a ship without nationality. In the latter two cases interference is not an exception in the same sense as in the former two: it depends on the fact that there is no State that can claim the right of non-interference against other States.

19  Only in the case of piracy a stronger measure of interference—seizure—is permitted to all States (Art. 105 UN Convention on the Law of the Sea). With regard to ships engaged in slave trade, enforcement rights beyond that of visit are limited to the flag State under the relevant international conventions: the Slavery Convention ([adopted 25 September 1926, entered into force 9 March 1927] 60 LNTS 253) and the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery ([adopted 7 September 1956, entered into force 30 April 1957] 266 UNTS 3).

20  Article 109 UN Convention on the Law of the Sea adds the case of ships engaged in unauthorized broadcasts from the high seas (Pirate Broadcasting). In this case not only is the right of visit granted on the high seas, but also that of arresting ships and individuals and of seizing apparatus. These rights are nonetheless restricted to the States directly affected. It is uncertain whether these rules already fully correspond to customary law.

21  The need of the coastal State to protect its coastline from imminent danger of pollution has given rise to the right of taking and enforcing measures beyond the territorial sea in cases of threatened or actual damage to the coastline caused by a maritime casualty. This rule crystallized with the Torrey Canyon incident in 1967 and was codified in the International Convention relating to Intervention of the High Seas in Cases of Oil Pollution Casualties of 29 November 1969 and in Art. 221 UN Convention on the Law of the Sea. It may be argued whether this is an independent rule or the consequence of principles such as self-defence or necessity.

22  In other cases, the coastal State may interfere with the exercise of high seas freedoms by other States in order to protect its interest in the observance of its laws and regulations. These are the cases of the control exercised in the contiguous zone and the right of hot pursuit.

3.  Treaty-Based Cases of Interference

23  Various treaties provide for further cases of interference. These include bilateral treaties concluded principally by the United States of America with other States to combat liquor smuggling during the prohibition era, and, more recently, to fight the smuggling of narcotic drugs and psychotropic substances. In some of these treaties the parties reciprocally permit each other to board and inspect ships flying the other’s flag. Some bilateral and multilateral agreements on fisheries also contain similar provisions (Fisheries Agreements). The most notable is the 1995 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (‘Fish Stocks Agreement’; Straddling and Highly Migratory Fish Stocks), which permits a State Party to a regional fisheries management organization or arrangement to board and inspect on the high seas fishing vessels flying the flag of a State Party to the Fish Stocks Agreement, even though not a party to the relevant regional organization or arrangement (Art. 21 Fish Stocks Agreement). These agreements may be seen as implementing the general obligation of co-operation among States in repressing illicit traffic of narcotics and of rationally exploiting the living resources of the high seas (see also Fisheries, High Seas).

4.  Recent Confirmation of the Pre-Eminent Role of the Flag State

24  The monopoly of the flag State as regards enforcement activities on the high seas seems confirmed by that the above mentioned exceptions are few, and, outside the field of fisheries, limited to bilateral agreements. Moreover, recent attempts to introduce exceptions at the multilateral level have failed to obtain the necessary support. All that has been accepted are provisions to make the consent of the flag State easier and more expeditious. One may quote Art. 17 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances ([adopted 19 December 1988, entered into force 11 November 1990] 28 ILM 497), as well as the 1995 Council of Europe Agreement on Illicit Traffic by Sea, Implementing Article 17 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances ([opened for signature 31 January 1995, entered into force 1 May 2000] CETS No 156). Similar provisions are to be found in Arts 8 and 9 Protocol against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention against Transnational Organized Crime ([adopted 15 November 2000, entered into force 28 January 2004] GAOR 55th Session Supp 49, 65). It may also be recalled that the negotiations for amending the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (‘SUA Convention’) were concluded with the adoption of the Protocol of 2005 to the SUA Convention, which confirms the exclusive right of the flag State to authorize boarding and enforcement on the high seas, while introducing procedures aimed at facilitating such authorization. An agreement by France and Spain to escort out of their EEZs single-hull tankers considered dangerous was indicated by the UN Secretary-General in the Oceans and the Law of the Sea: Report of the Secretary-General (UN Doc A/58/65) as ‘not in conformity’ with Art. 58 UN Convention on the Law of the Sea (at para. 57). Even bilateral agreements concluded by the United States of America in the framework of the Proliferation Security Initiative (PSI), although introducing in some cases a form of tacit authorization in case a short time-limit after the request has elapsed, do not derogate the basic principle.

25  It is noteworthy that, notwithstanding the current concerns relating to drug trafficking, smuggling of migrants, transport of weapons of mass destruction, and navigation of substandard ships, the monopoly of the flag State, although under attack, has been confirmed by recent practice.

5.  Interference on Foreign Ships on the High Seas as a Countermeasure or as Self-Defence

26  Recent scholarly writings have put forward the idea that non-compliance with obligations set out for the protection of collective interests in multilateral treaties and in UN Security Council resolutions adopted under Chapter VII UN Charter, justify that States Parties to the relevant treaty board and inspect the delinquent ships and possibly arrest and perform other enforcement action. Such action would be a countermeasure in respect of the wrongful act committed by another State Party by not complying with its obligation of co-operation and conservation and of effectively controlling the fishing vessel flying its flag, or for non-compliance with binding decisions of the UN Security Council. The examples given concern obligations of co-operation for the conservation of the living resources of the high seas and of controlling effectively fishing vessels flying their flag set out in Arts 116 to 120 UN Convention on the Law of the Sea, in the FSA, and in regional fisheries agreements, as well as obligations set out in UN Security Council Resolutions 1373 (2001) of 28 September 2001 and 1540 (2004) of 28 April 2004 on terrorism and on weapons of mass destruction. The applicability of this view to a specific case depends on whether the State or States invoking the right to enact countermeasures to justify interference with foreign flag ships on the high seas can be considered as ‘specially affected’ by the non-compliance, and on whether the prohibition of the use of force comes into play (Use of Force, Prohibition of).

27  The imposition of ‘quarantines’ or of ‘exclusion’ zones in situations of tension or conflict, involving the possibility of excluding navigation of foreign vessels, have been justified invoking the notion of self-defence. This justification has, however, raised controversy.

6.  Interference in Marine Protected Areas on the High Seas

28  Groups of States may agree to establish on the high seas (and in EEZs where, as mentioned, certain freedoms of the high seas apply), marine protected areas (‘MPAs’), in order to protect the environment. MPAs have recently been indicated as very useful tools to protect vulnerable marine ecosystems. While the contracting parties to the instruments establishing the MPA agree to limitations of the freedoms they enjoy on the high seas, which may also include the possibility for other contracting parties to interfere with navigation of their ships, interference with ships of third States on the high seas would be contrary to international law and is normally excluded through a reference to international law, for instance Art. 28 (2) Protocol concerning Specially Protected Areas and Biological Diversity in the Mediterranean ([adopted 10 June 1995, entered in force 12 December 1999] [1999] OJ L322/3). As regards the parts of MPAs established in EEZs, the possibility of interference of the coastal State in the exercise of its duty to protect the environment must be reconciled on the basis of the ‘due regard rule’ (see paras 31–36 below) with the freedom of navigation of the flag State.

7.  Port State Jurisdiction for Violations on the High Seas

29  Once a ship has voluntarily entered in a port, the port State may exercise jurisdiction on it (Port State Jurisdiction). This is a consequence of the port State’s right to admit or exclude foreign vessels from its port. Under Art. 218 UN Convention on the Law of the Sea the port State may exercise enforcement activities such as investigations and institution of proceedings, as regards discharges from a foreign flag vessel voluntarily present in its port for discharges in violation of applicable international rules and standards committed, inter alia, on the high seas. Even though it does not bind the port State to exercise this power, this rule is a relevant indication of concern that, as regards violations on the high seas, enforcement by the flag State may not be always available or sufficient. While the UN Convention on the Law of the Sea has no parallel provision for enforcement by the port State of rules concerning fishery violations on the high seas, the Food and Agriculture Organization of the United Nations (FAO) has adopted in 2004 a Model Scheme on Port State Measures to Combat Illegal, Unreported and Unregulated Fishing (FAO Rome 2007). Under this non-binding instrument, the use of ports for landing, transshipping, or processing of fish should be denied if the flag State is not a member or a co-operating party to the competent regional fishery management organization, or has a record of illegal unreported and unregulated fishing, unless ‘the vessel can establish that the catch was taken in a manner consistent with the relevant conservation and management measures’ (para. 2.5 Model Scheme on Port State Measures to Combat Illegal, Unreported and Unregulated Fishing), a very significant reversal of the burden of proof. Moreover, the port State should carry out inspections by duly qualified inspectors, extending to all areas of the fishing vessel, and enjoying the full co-operation of the master. The FAO, with the endorsement of the UN General Assembly, has started, in 2007, the negotiation process to adopt a binding instrument developing the basic principles of the Model Scheme on Port States Measures to Combat Illegal, Unreported and Unregulated Fishing.

F.  Accommodation of Activities

1.  General Aspects

30  Various rules set out criteria for accommodating the exercise of the freedoms of the high seas by different States or the exercise of these freedoms with activities conducted under the UN Convention on the Law of the Sea on the continental shelf as well as in the international seabed area. Some of these rules do not seek to give priority to one activity over another, but rather to ensure, as far as possible, the coexistence of different activities. Other rules indicate a preference for one activity over another, while at the same time setting out specific conditions to be met for the preference to be applicable. The general rules apply not only when the specific ones are inapplicable: they may be used for interpreting the specific rules on the basis of their general purpose of ensuring coexistence. Conversely, from the specific rules a general principle can be drawn: the need to safeguard human life at sea. Also the principle of Art. 88 UN Convention on the Law of the Sea according to which ‘the high seas shall be reserved for peaceful purposes’ can be seen as a general rule on accommodation of activities, even though it would seem to add little to Art. 2 (4) UN Charter.

2.  Accommodation of High Seas Freedoms

31  The general rule is contained in Art. 2 High Seas Convention and in Art. 87 (2) UN Convention on the Law of the Sea. According to the latter, the freedoms of the high seas ‘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 principle underlying this rule is that the exercise of one freedom is the limit to the exercise of the others. No preferences are given and the coexistence of the various activities has to be sought through the necessary accommodations. The solution that best ensures the respect of all competing interests has to be preferred, taking into account the principle of safeguarding life at sea.

32  This rule has been invoked, inter alia, to justify claims to protracted or permanent uses of portions of the high seas, for example, for the purpose of conducting weapons and missile launching exercises or nuclear tests (see also Nuclear Tests Cases), or constructing and operating port facilities beyond the limit of the territorial sea (the ‘super-ports’, now included in the coastal States’ rights in the EEZ).

33  A specific application of the general compatibility rule to scientific research including the high seas is found in Art. 240 UN Convention on the Law of the Sea. It states that marine scientific research shall not ‘unjustifiably interfere’ with other legitimate uses of the sea and that it ‘shall be duly respected in the course of such uses’ (Art. 240 (c) UN Convention on the Law of the Sea). The Ad Hoc Open-ended Informal Working Group set up by the UN General Assembly to study the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction in its second session in 2008 underlined the need to ensure compatibility of research with the protection of the environment and to adopt a precautionary approach in such research, and that extraction activities be conducted ‘in a sustainable manner’ (Joint Statement of the Co-Chairpersons of the Ad Hoc Open-ended Informal Working Group to Study Issues relating to the Conservation and Sustainable Use of Marine Biological Diversity beyond Areas of National Jurisdiction (16 May 2008) UN Doc A/63/79 Annex, para. 33).

34  Many specific rules concern accommodation of the exercise of the freedom of navigation by various States. In general they set forth flag State obligations which are contained in both the High Seas Convention and the UN Convention on the Law of the Sea and in instruments adopted within the framework of the International Maritime Organization (IMO) and the International Labour Organization (ILO). They concern safety of navigation, especially as regards construction, equipment, seaworthiness, and manning of ships; labour conditions on board; the use of signals; maintenance of communications; and avoidance of collisions. Under the High Seas Convention and the UN Convention on the Law of the Sea, States, in taking measures on these matters, must conform to ‘generally accepted international regulations, procedures and practices’ (Art. 94 (5) UN Convention on the Law of the Sea).

35  Thus the High Seas Convention and the UN Convention on the Law of the Sea make at least the main principles contained in the most widely ratified conventions applicable also to non-parties. Moreover, Art. 94 UN Convention on the Law of the Sea sets a group of substantive minimum requirements with which all States must comply as regards safety of navigation.

36  As regards accommodation of the exercise of various freedoms of the high seas by different States, the specific rules are few. Article 261 UN Convention on the Law of the Sea seems to give preference to the exercise of freedom of navigation over the freedom of scientific research, though only as regards deployment of scientific installations and equipment in established shipping routes. Also Rule 18 Convention on the International Regulations for Preventing Collisions at Sea ([signed 20 October 1972, entered into force 15 July 1977] 1050 UNTS 17) though aiming mostly at establishing priorities among various forms of navigation, indirectly sets priorities between various other freedoms of the high seas (see also Collisions at Sea).

3.  Accommodation in Relation to the Continental Shelf

37  According to Art. 78 (2) UN Convention on the Law of the Sea

[t]he exercise of the rights of the coastal State over the continental shelf must not infringe or result in any unjustifiable interference with navigation and other rights and freedoms of other States.

This general rule aims at ensuring coexistence of the various uses. However, it seems to include a slight preference for the freedoms of the high seas.

38  The most interesting specific rules concern installations on the continental shelf and their accommodation with the exercise of high seas freedoms. Article 60 UN Convention on the Law of the Sea, applicable to the continental shelf through Art. 80 UN Convention on the Law of the Sea, gives priority to navigation by prohibiting the establishment on the continental shelf of installations which may interfere with the use of recognized sea lanes essential to international navigation, while other provisions of the same article, especially those on removal of abandoned installations, seek to ensure coexistence of the exercise of the high seas freedoms and of the coastal States’ sovereign rights.

4.  Accommodation in the International Seabed Area

39  The UN Convention on the Law of the Sea contains general rules on compatibility between exploration and exploitation ‘activities in the Area’ (Art. 87 (2) UN Convention on the Law of the Sea) and other ‘activities in the marine environment’ (Art. 147 (1) and (3) UN Convention on the Law of the Sea), corresponding by and large to the general rule of compatibility considered above. Though the rule is similar, under the UN Convention on the Law of the Sea ‘activities in the Area’ are not high seas freedoms and it might be argued, that, because they are conducted on behalf of mankind, they should be given preference over high seas freedoms, at least in some cases. Under general international law this point is, however, widely disputed. The laws on seabed mining beyond the limits of national jurisdiction enacted by some industrialized countries between 1980 and 1985 contain rules on accommodation close to those on the accommodation of the high seas freedoms in the High Seas Convention. Article 147 (2) UN Convention on the Law of the Sea also contains some specific rules aimed at obtaining compatibility of installations used for deep seabed mining and the high seas freedoms such as navigation and fishing.

G.  Conservation and Management of the Living Resources

40  The provisions on the conservation and management of the living resources of the high seas in Arts 116 to 120 UN Convention on the Law of the Sea give a broad indication on how the freedom of fishing on the high seas should be exercised with a view to conserve and manage rationally such resources. The duty to adopt conservation measures applicable to the ships flying their flag (the UN Convention on the Law of the Sea speaks of ‘nationals’) and to co-operate with other States fishing in the same area or exploiting the same resources are set out in Arts 117 and 118 UN Convention on the Law of the Sea. Article 119 UN Convention on the Law of the Sea prescribes the application of the criteria of maximum sustainable yield and of the use of the best scientific evidence available, and the consideration of effects on associated or dependent species.

41  The strong pressure exercised on the high seas fisheries resources since entry into force of the UN Convention on the Law of the Sea and the clear trend towards overfishing these resources have made a more severe and detailed regulation of high seas fishing a high priority. Important instruments have been concluded: the FAO Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas of 1993 states the principle that high seas fishing requires the authorization of the flag State, and indicates requirements for such authorization; the 1995 Fish Stocks Agreement introduces the ecosystem and the precautionary approaches in high seas management. Under the Fish Stocks Agreement particular importance is given to the role of regional fisheries management organizations or arrangements (‘RFMO/As’). The agreements mentioned are, however, not sufficient, as the parties to the agreements are not numerous enough and because RFMO/As sometimes have limited competences, do not include as parties all the States active in the relevant fisheries, and—although their number is expanding—do not cover all high seas areas. UNGA Resolutions on fisheries (especially UNGA Resolution 59/25 of 17 November 2004 [GAOR 59th Session Supp 49 vol 1, 30] and UNGA Resolution 61/105 of 8 December 2006 [GAOR 61st Session Supp 49 vol 1, 53]), have stressed as priorities for development of new rules: deep-sea fisheries on the high seas, in particular as regards the protection of vulnerable marine ecosystems and of biodiversity; criteria for assessing flag State performance; and port State enforcement. The FAO, as mentioned, has started negotiations on port State enforcement and is developing guidelines on deep-sea fisheries and will probably begin work on flag State performance. The establishment of MPAs is also seen as an important instrument for protecting biodiversity (see para. 28 above).

42  The 2006 Review Conference on the Fish Stocks Agreement has encouraged States to recognize that the general principles of the Fish Stocks Agreement, especially the ecosystem and the precautionary approaches, apply also to high seas fish stocks different from those—the straddling and the highly migratory ones—to which the Fish Stocks Agreement applies. This expansion of the scope of the approach taken by the Fish Stocks Agreement to the ‘discrete’ high seas fish stocks has been endorsed by the UN General Assembly.

H.  Development of Rules

43  Under Art. 11 High Seas Convention and Art. 97 UN Convention on the Law of the Sea, only the authorities of the flag State or of the State of the nationality of a person whose responsibility is involved have criminal and disciplinary jurisdiction over collisions or navigation incidents on the high seas. These provisions confirm those of the International Convention for the Unification of Certain Rules relating to Penal Jurisdiction in Matters of Collision or Other Incidents of Navigation ([signed 10 May 1952, entered into force 20 November 1955] 439 UNTS 233). They run counter to the judgment in the Lotus Case (The ‘Lotus’ [France v Turkey] PCIJ Series A No 10; Lotus, The), according to which international law provides no limit to the criminal jurisdiction of States deriving from the place of the offence or from the nationality of the persons involved. As regards arrest and detention of ships involved in collisions, jurisdiction belongs to the flag State only (Art. 97 (3) UN Convention on the Law of the Sea).

Select Bibliography

Select Documents