Law of the sea

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Overview[edit | edit source]

Modern law of the sea derives largely from the 1982 United Nations Convention on the Law of the Sea (UNCLOS),[1] which is considered to generally correspond to customary international law.[2]

Flag State jurisdiction[edit | edit source]

Flag State jurisdiction

Pursuant to the law of the sea, a ship has the nationality of the State whose flag it is entitled to fly.[3] In turn, that State has the exclusive jurisdiction over the ship in question while the ship is on the high seas.[4] Conversely, other States are prohibited from exercising enforcement jurisdiction[5] over a vessel that does not fly their flag.[6]

This principle of the exclusive jurisdiction of the flag State is a corollary of the rights enjoyed by vessels on the high seas – notably the freedom of navigation – as it serves to prevent interference by other States on the high seas.[7] However, the principle is subject to specific exceptions which enable third States to exercise enforcement jurisdiction over vessels that do not fly their flag.

One exception is provided by Article 110 of the Law of the Sea Convention,[8] which grants a ‘right of visit’ to States that are not the vessel’s flag State. Under the right of visit, a State may send a designated vessel to visit and inspect a foreign private vessel.[9] The exercise of this right is dependent on there being “reasonable ground for suspecting” that the vessel is engaged in piracy,[10] slavery,[11] or unauthorised broadcasting,[12] or that the vessel is either without nationality or, in reality, of the same nationality as the inspecting State.[13] Whether the right of visit may be carried out using cyber means is unclear and disputed.[14]

However, the Law of the Sea Convention does not represent the totality of the legitimate exceptions to flag State jurisdiction. The ability to exercise enforcement jurisdiction over foreign vessels may also be provided for in other international treaties.[15] Moreover, the United Nations Security Council, acting under Chapter VII of the UN Charter, may pass resolutions that compel member States to engage in enforcement actions at sea, usually with the flag State’s consent.[16] Very few resolutions have required States to exercise their enforcement jurisdiction over foreign vessels without the flag-State’s consent.[17]

Freedom of navigation[edit | edit source]

Freedom of navigation

Article 87(1) UNCLOS provides for the freedom of navigation with respect to ships on the high seas.[18] This freedom is also found in other treaties[19] and in customary international law.[20]

In accordance with the freedom of navigation, every State has the right to sail ships flying its flag on the high seas[21] without being subject to the jurisdiction of other States.[22] In essence, this means that the ship has “the right to traverse the high seas with no or minimal interference from any other State”.[23]

In the Norstar judgment, the International Tribunal for the Law of the Sea (ITLOS) considered that any interference with a ship’s navigation by a foreign State would breach Article 87 UNCLOS,[24] including those acts of interference, which are not physical in nature.[25] According to the Tribunal, non-physical acts of interference may constitute a breach of the freedom of navigation, even if they do not involve enforcement or if they do not produce a ‘chilling effect’ on the flag State.[26] This suggests that non-enforcement cyber operations by non-flag States also qualify as breaches of the freedom of navigation, provided that they impermissibly interfere with navigation of a foreign vessel on the high seas.

To be lawful, any interference with a vessel’s freedom of navigation must be provided for in the UNCLOS regime (notably the right of visit[27] and hot pursuit[28]), in another international treaty,[29] or in customary international law.

Sovereign immunity[edit | edit source]

Sovereign immunity

The Law of the Sea Convention grants sovereign immunity to specific vessels.

The first class of vessels afforded sovereign immunity are warships, defined as “ship[s] belonging to the armed forces of a State bearing the external marks distinguishing such ships of its nationality, under the command of an officer duly commissioned by the government of the State and whose name appears in the appropriate service list or its equivalent, and manned by a crew which is under regular armed forces discipline”.[30] Warships are considered “an expression of the sovereignty of the State whose flag [they] fl[y]”[31], and are afforded immunity in the internal waters of a third State,[32] in the territorial sea of a third State,[33] and on the high seas.[34]

Sovereign immunity is also granted to government vessels operated for non-commercial purposes.[35]

Vessels possessing sovereign immunity on the high seas “have complete immunity from the jurisdiction of any State other than the flag State”[36]. ‘Complete immunity’ means that sovereign immune vessels cannot be subjected “to any act of civil, criminal, or other jurisdiction of another State”, which includes any enforcement measure by a non-flag State.[37] Notably, this prevents a non-flag State from exercising the right of visit.[38]

This complete immunity is applicable in the territorial waters of a coastal State, subject to the requirements that a sovereign immune vessel must comply with the coastal State’s regulations concerning passage through its waters[39], and that the flag State of the immune vessel must bear responsibility for any damage that arises from its failure to comply with such regulations.[40] Sovereign immunity is also maintained within a foreign State’s internal waters[41] subject to diplomatic clearance, and within archipelagic waters.[42]

Any interference with cyber infrastructure on board a vessel that possesses sovereign immunity constitutes a violation of international law.[43] In this context, the notion of interference includes any activity that damages or significantly impairs the operation of the cyber infrastructure in question.[44]

Sovereign immunity is not absolute and can cease to apply as between States that are parties to an international armed conflict.[45]

Maritime law enforcement[edit | edit source]

Maritime law enforcement

States possess the ability to engage in maritime law enforcement operations across various maritime domains. Maritime law enforcement operations refer to the actions a State can take when exercising their enforcement jurisdiction.

States are accorded rights and duties permitting responses to a range of maritime crimes or other unlawful acts. The extent of these duties is determined by the maritime zone involved.[46] Within its internal waters or territorial sea, a State may enforce its national laws, and exercise enforcement jurisdiction over non-sovereign immune vessels which engage in terrorism, transnational crimes, intentional pollution, illegal fishing, and intelligence gathering.[47]

A State’s authority to exercise its enforcement jurisdiction over non-sovereign immune vessels in its contiguous zone is limited to actions necessary to prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations.[48] Within its own exclusive economic zone, a State has enforcement jurisdiction only over laws concerning fishing and pollution.[49]

The jurisdiction to enforce the laws on the high seas is generally vested in the flag State, which possesses the exclusive jurisdiction over that vessel.[50] However, there are exceptions to this rule, which can enable a State to exercise enforcement jurisdiction over a foreign vessel as part of a maritime law enforcement operation on the high seas. These exceptions can be found within the Law of the Sea Convention,[51] multilateral treaties,[52] bilateral treaties,[53] and UN Security Council Resolutions.[54]

As part of a maritime law enforcement operation, force may be used against foreign vessels.[55] However, forcible measures against foreign vessels at sea can also constitute a use of force under Article 2(4) of the UN Charter,[56] which is applicable in the maritime domain.[57] Therefore, forcible operations at sea must be distinguished as involving either a use of force under Article 2(4) or as being a maritime law enforcement operation.

Whether an operation is classed as law enforcement or military action engaging Article 2(4) is based “primarily on an objective evaluation” considering the relevant circumstances of each case.[58] It has also been held that the relevant question is “whether the dispute itself concerns military activities, rather than whether a [State] has employed its military in some manner in relation to the dispute”.[59] The focus when differentiating between maritime law enforcement activities and uses of force under Article 2(4) is on the objective assessment of the activities involved in any incident.

Whenever force is used in law enforcement operations, certain conditions must be complied with. Any use of force in law enforcement must be used as a last resort and not go beyond what is reasonable and necessary in the circumstances.[60] Prior to using force, any law enforcement operation should have attempted to use a range of actions, including using auditory or visual signals requesting a ship to stop, or firing a shot across the bow.[61] If force is used, “all efforts should be made to ensure that life is not endangered”.[62]

When the vessel concerned possesses sovereign immunity, it is generally considered that any exercise of enforcement jurisdiction against such a vessel will be considered a use of force under Article 2(4) rather than as a law enforcement operation,[63] as States are prohibited from exercising jurisdiction over sovereign immune vessels.[64] It has been held that when military forces of one State, and military and paramilitary forces of another State are arrayed in opposition to each other, this will be considered as a ‘quintessentially military situation’, and not as involving law enforcement.[65]

Whether cyber means can be used in maritime enforcement operations is a point of discussion. It has been recognised that in light of improving technologies, the rules concerning maritime law enforcement operations may need to be reviewed.[66] For example, it is disputed whether the right of visit could be carried out virtually through cyber means.[67]

Appendixes[edit | edit source]

See also[edit | edit source]

Notes and references[edit | edit source]

  1. ↑ United Nations Convention on the Law of the Sea, (adopted 10 December 1982, entered into force 1 November 1994), 1833 UNTS 397
  2. ↑ Tullio Treves, ‘Law of the Sea’ in Rüdiger Wolfrum (ed) Max Planck Encyclopedia of Public International Law (OUP 2008-, updated April 2011) para 59 (concluding that ‘there is a presumption that the provisions of the Convention correspond to customary law’).
  3. ↑ Law of the Sea Convention, Art 91(1).
  4. ↑ Law of the Sea Convention, Art 92(1). See also Doris König, ‘Flag of Ships’ in Rüdiger Wolfrum (ed) Max Planck Encyclopedia of Public International Law (OUP 2008-, updated April 2009) para 25.
  5. ↑ Enforcement jurisdiction refers to the authority of a State to secure compliance with legal rules. Restatement (Fourth) of the Foreign Relations Law of the United States (ALI 2018) § 401.
  6. ↑ The Case of the S.S. “Lotus” (Judgment No. 9) (1927) PCIJ Series A No 10, “It is certainly true that – apart from certain special cases which are defined by international law – vessels on the high seas are subject to no authority except that of the State whose flag they fly… no State may exercise any kind of jurisdiction over foreign vessels upon them”; see also M/V “Norstar” judgment (Panama v Italy) (2019) 25 ITLOS (herein referred to as the M/V “Norstar” Judgment), para 216 ”…save in exceptional cases, no State may exercise jurisdiction over a foreign ship on the high seas”; Doris König, ‘Flag of Ships’ in Rüdiger Wolfrum (ed) Max Planck Encyclopedia of Public International Law (OUP 2008-, updated April 2009) para 25.
  7. ↑ Y Tanaka, ‘Navigational Rights and Freedoms’ in (2015) in Donald Rothwell, Alex Oude Elfernik, Karen Scott and Tim Stephens The Oxford Handbook of the Law of the Sea (OUP 2015) 556.
  8. ↑ Law of the Sea Convention, Art 110 (1); the Convention makes clear that other exceptions contained in separate treaties can also exist, see for example the exceptions outlined in Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (entered into force 1 March 1992) 1678 UNTS 221 (SUA Convention).
  9. ↑ Law of the Sea Convention, Part VII, Art 110; Douglas Guilfoyle ‘The High Seas’ (2015) in Donald Rothwell, Alex Oude Elfernik, Karen Scott and Tim Stephens The Oxford Handbook of the Law of the Sea (OUP 2015) 220.
  10. ↑ Law of the Sea Convention, Part VII, Art 110 (1) (a).
  11. ↑ Law of the Sea Convention, Part VII, Art 110 (1) (b).
  12. ↑ Law of the Sea Convention, Part VII, Art 110 (1) (c).
  13. ↑ Law of the Sea Convention, Part VII, Art 110 (1) (d-e).
  14. ↑ Tallinn Manual 2.0, commentary to rule 46, para 10.
  15. ↑ Douglas Guilfoyle ‘The High Seas’ (2015) in Donald Rothwell, Alex Oude Elfernik, Karen Scott and Tim Stephens The Oxford Handbook of the Law of the Sea (OUP 2015) 219. See, e.g., the ship boarding arrangements between the US and other States as part of the Proliferation Security Initiatives, such as the Agreement between the Government of the United States of America and the Government of the Republic of Croatia concerning cooperation to suppress the proliferation of weapons of mass destruction, their delivery systems, and related materials (signed June 1 2005, entered into force 5 March 2007).
  16. ↑ See for example, UNSC Res 665 (14 August 1990) UN Doc S/Res/665; UNSC Res 2292 (14 June 2016) UN Doc S/Res/2292.
  17. ↑ See for example, UNSC Res 665 (25th August 1990) UN Doc S/Res/665. See also Craig H Allen, “The Peacetime Right of Approach and Visit and Effective Security Council Sanctions Enforcement at Sea” (2019) 95 INT’L L. STUD 400, 406.
  18. ↑ Law of the Sea Convention, Part VII, Art 87 (1).
  19. ↑ For example, the Geneva Convention on the High Seas (entered into force 30th September 1962) 450 UNTS 11, article 2(1).
  20. ↑ “Union of Soviet Socialist Republics-United States: Joint Statement with Attached Uniform Interpretation of Rules of International Law Governing Innocent Passage” (1989) 28 International Legal Materials 1444 (The Jackson Hole Statement).
  21. ↑ Law of the Sea Convention, Part VII, Art 90.
  22. ↑ M/V “Norstar” judgment, para 216 “Freedom of navigation would be illusory if a ship – a principal means for the exercise of the freedom of navigation – could be subject to the jurisdiction of other States on the high seas”.
  23. ↑ Albert Hoffman, ‘Freedom of Navigation’ in Rudiger Wolfrum Max Planck Encyclopaedia of Public International Law (OUP 2011) para 22.
  24. ↑ M/V “Norstar” judgment, para 222.
  25. ↑ M/V “Norstar” judgment, para 223.
  26. ↑ M/V “Norstar” judgment, para 224, referred to as a “chilling effect”.
  27. ↑ Law of the Sea Convention, Part VII, Art 110.
  28. ↑ Law of the Sea Convention, Part VII, Art 111.
  29. ↑ M/V “Norstar” judgment, para 224 “…save in exceptional cases expressly provided for in the Convention or in other international treaties…”; Y Tanaka, ‘Navigational Rights and Freedoms’ (2015) in Donald Rothwell, Alex Oude Elfernik, Karen Scott and Tim Stephens The Oxford Handbook of the Law of the Sea (OUP 2015) 556; see also Geneva Convention on the High Seas (entered into force 30th September 1962) 450 UNTS 11, Arts 22-23.
  30. ↑ Law of the Sea Convention, Part VII, Art 29.
  31. ↑ The “Ara Libertad” Case (Argentina v. Ghana) (2012) ITLOS 20, para 94.
  32. ↑ The “Ara Libertad” Case (Argentina v. Ghana) (2012) ITLOS 20, para 95.
  33. ↑ Law of the Sea Convention, Part VII, Art 32.
  34. ↑ Law of the Sea Convention, Part VII, Art 95.
  35. ↑ Law of the Sea Convention, Part VII, Art 96.
  36. ↑ Law of the Sea Convention, Part VII, Art 95-96.
  37. ↑ Wolff Heintschel von Heinegg, ‘Warships’ (2015) in Rüdiger Wolfrum (ed) Max Planck Encyclopedia of Public International Law (OUP 2008-, updated October 2015).
  38. ↑ Law of the Sea Convention, Part VII, Art 110(1) (excepting ships ‘entitled to complete immunity’).
  39. ↑ Law of the Sea Convention, Part VII, Art 30.
  40. ↑ Law of the Sea Convention, Part VII, Art 31.
  41. ↑ Wolff Heintschel von Heinegg, ‘Warships’ (2015) in Rüdiger Wolfrum (ed) Max Planck Encyclopedia of Public International Law (OUP 2008-, updated October 2015).
  42. ↑ Donald Rothwell and Tim Stephens, The International Law of the Sea (Bloomsbury 2010).
  43. ↑ Tallinn Manual 2.0, rule 5; Michael Schmitt ‘Below the Threshold Cyber Operations: The Countermeasures Response Option and International Law’ (2014) 54 Virginia Journal of International Law 697.
  44. ↑ Ibid.
  45. ↑ Tallinn Manual 2.0, commentary to rule 5, para 6.
  46. ↑ Natalie Klein ‘Maritime Security’ in Donald Rothwell, Alex Oude Elfernik, Karen Scott and Tim Stephens (eds), The Oxford Handbook of the Law of the Sea (OUP 2015) 586.
  47. ↑ Natalie Klein ‘Maritime Security’ in Donald Rothwell, Alex Oude Elfernik, Karen Scott and Tim Stephens (eds), The Oxford Handbook of the Law of the Sea (OUP 2015) 586.
  48. ↑ Law of the Sea Convention, Part VII, Article 33.
  49. ↑ Law of the Sea Convention, Part VII, Article 73.
  50. ↑ M/V “Norstar” judgment (Panama v Italy) (2019) 25 ITLOS, para 216 ”…save in exceptional cases, no State may exercise jurisdiction over a foreign ship on the high seas”; Doris König, ‘Flag of Ships’ in Rüdiger Wolfrum (ed) Max Planck Encyclopedia of Public International Law (OUP 2008-, updated April 2009); Douglas Guilfoyle ‘The High Seas’ (2015) in Donald Rothwell, Alex Oude Elfernik, Karen Scott and Tim Stephens The Oxford Handbook of the Law of the Sea (OUP 2015).
  51. ↑ Law of the Sea Convention, Part VII, Art 110 – 111.
  52. ↑ See for example the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (entered into force 1 March 1992) 1678 UNTS 221 (SUA Convention).
  53. ↑ See the ship boarding arrangements between the US and other States as part of the Proliferation Security Initiatives, eg Agreement between the Government of the United States of America and the Government of the Republic of Croatia Concerning Cooperation to Suppress the Proliferation of Weapons of Mass Destruction, their Delivery Systems, and Related Materials (Signed June 1 2005, entered into force March 5, 2007).
  54. ↑ See for example, UNSC Res 665 (14 August 1990) UN Doc S/Res/665.
  55. ↑ Patricia Kwast, ‘Maritime Law Enforcement and the Use of Force: Reflections on the Categorisation of Forcible Action at Sea in the Light of the Guyana/Suriname Award’ (2008) 13 Journal of Conflict and Security Law; The M/V Saiga Case (No 2) (Saint Vincent and the Grenadines v Guinea) ITLOS (Judgment 1999) (hereinafter referred to as the M/V Saiga Case) para 155; Case Concerning the Detention of Three Ukrainian Naval Vessels (Ukraine vs the Russian Federation) (Order for Provisional Measures 2019) ITLOS 26.
  56. ↑ Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS 16, Art 2(4); Patricia Kwast, ‘Maritime Law Enforcement and the Use of Force: Reflections on the Categorisation of Forcible Action at Sea in the Light of the Guyana/Suriname Award’ (2008) 13 Journal of Conflict and Security Law, 58.
  57. ↑ Oil Platforms (Islamic Republic of Iran v United States of America) (Judgment) 2003 ICJ Rep 161; Patricia Kwast, ‘Maritime Law Enforcement and the Use of Force: Reflections on the Categorisation of Forcible Action at Sea in the Light of the Guyana/Suriname Award’ (2008) 13 Journal of Conflict and Security Law page 59; Law of the Sea Convention, Part VII, Art 301.
  58. ↑ Case Concerning the Detention of Three Ukrainian Naval Vessels (Ukraine vs the Russian Federation) (Order for Provisional Measures 2019) ITLOS 26, para 66.
  59. ↑ South China Sea Arbitration (The Republic of the Philipines and the Peoples Republic of China) (Award of the 12th July 2016) PCA Case No 2013-19 (herein referred to as the South China Sea Arbitration), para 1158.
  60. ↑ The M/V Saiga Case, para 155.
  61. ↑ The M/V Saiga Case, para 156.
  62. ↑ The M/V Saiga Case, para 156.
  63. ↑ Patricia Kwast, ‘Maritime Law Enforcement and the Use of Force: Reflections on the Categorisation of Forcible Action at Sea in the Light of the Guyana/Suriname Award’ (2008) 13 Journal of Conflict and Security Law, 85; Natalie Klein, Maritime Security and the Law of the Sea (OUP 2012) 65.
  64. ↑ Law of the Sea Convention, Part VII, Art 95-96; Wolff Heintschel von Heinegg, ‘Warships’ (2015) in Rüdiger Wolfrum (ed) Max Planck Encyclopedia of Public International Law (OUP 2008-, updated October 2015).
  65. ↑ The South China Sea Arbitration, para 1161.
  66. ↑ Natalie Klein ‘Maritime Security’ (2015) in Donald Rothwell, Alex Oude Elfernik, Karen Scott and Tim Stephens The Oxford Handbook of the Law of the Sea (OUP 2015).
  67. ↑ Tallinn Manual 2.0, commentary to rule 46, para 10.

Bibliography and further reading[edit | edit source]

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