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], generally accepted, however, as a codification of customary international law of the sea.

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.[2] In turn, that State has the exclusive jurisdiction over the ship in question.[3] Conversely, other States are prohibited from exercising enforcement jurisdiction[4] over a vessel that does not fly their flag.[5]

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.[6] However, the principle is subject to specific exceptions that enable third States to exercise enforcement jurisdiction over vessels that do not fly their flag.

One exception is provided by Article 110 UNCLOS which grants a ‘right of visit’ to States that are not a vessel’s flag State.[7] Under the right of visit, a State may send a designated vessel to visit and inspect a foreign private vessel.[8] The exercise of this right is dependent on there being “reasonable ground for suspecting” that the vessel is engaged in piracy, slavery, unauthorised broadcasting, the vessel is either without nationality or, in reality, of the same nationality as the inspecting State.[9] Whether the right of visit may be carried out using cyber means is unclear and disputed.[10]

However, UNCLOS 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.[11] 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.[12] Very few resolutions have required States to exercise their enforcement jurisdiction over foreign vessels without the flag-State’s consent.[13]

Freedom of navigation[edit | edit source]

Freedom of navigation
Article 87(1) UNCLOS provides a freedom of navigation to ships on the high seas.[14] This freedom also exists in customary international law[15] and other treaties[16].

This gives all States the right to sail ships flying its flag on the high seas[17] and a ship is entitled to exercise its freedom of navigation without being subject to the jurisdiction of a foreign State[18]. In essence, this means that the ship has “the right to traverse the high seas with no or minimal interference from any other State”.[19]

In the Norstar Judgment, the Tribunal made clear that any interference with a ship’s navigation by a foreign State would breach Article 87, including interferences which are not physical.[20] With regards to non-physical interferences, the Tribunal made clear that these interferences did not need to be exercises of enforcement jurisdiction by a non-flag State, nor need to discourage or influence the actions of the vessel of the flag State (known as the ‘chilling effect’), to amount to a breach of Article 87.[21] This suggest that cyber (non-physical) means which are not enforcement actions by a non-flag State can still breach the freedom of navigation granted to vessels on the high seas.

To be legitimate, any interference with a vessels freedom of navigation, can only be one that is provided for in the UNCLOS regime (notably the right of visit[22] and hot pursuit[23]), or provided for in another international treaty,[24] or in customary international law.

Sovereign immunity[edit | edit source]

Sovereign immunity
UNCLOS grants sovereign immunity to specific vessels.

The first class of vessel afforded sovereign immunity are warships, defined as “a ship 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”.[25] Warships are considered “an expression of the sovereignty of the State whose flag it flies”,[26] and are afforded immunity in the internal waters of a third state,[27] in the territorial sea of a third state[28] and on the high seas[29].

Sovereign immunity is also granted to government vessels operated for non-commercial purposes.[30]

Vessels possessing sovereign immunity on the high seas “have complete immunity from the enforcement jurisdiction of any State, other than the flag State”.[31] ‘Complete immunity’ means that sovereign immune vessels cannot be subject “to any act of civil, criminal, or other jurisdiction of another State”, and cannot be subjected to any enforcement measure by a non-flag state.[32] Notably, this prevents a non-flag State from exercising the right of visit.[33] This right enables a non-flag State to justifiably board a vessel which does not possess sovereign immunity, where it has reasonable grounds to suspect the existence of one of five activities[34] which would make the vessel liable to a non-flag State’s jurisdiction.

This complete immunity is applicable in the territorial waters of a coastal state, subject to the requirements that a sovereign immune vessel is to comply with that State’s regulations concerning passage through its waters[35] and that the flag State of the immune vessel will be responsible for any damage that arises from failure to comply with the regulations[36]. Sovereign immunity is also maintained within a foreign State’s internal waters[37] subject to diplomatic clearance, and within archipelagic waters[38].

“Sovereign immunity entails inviolability”,[39] thus any interference with the cyber infrastructure, or generally with a vessel that possesses sovereign immunity would be an internationally wrongful act. Though it has been suggested that the cyber infrastructure must be “devoted exclusively to government purposes” to enjoy immunity,[40] the complete immunity afforded to specific vessels by UNCLOS would likely remove this requirement.

It is accepted that any interference with the cyber infrastructure by a third State, on board any vessel that possesses sovereign immunity, will constitute a violation of the sovereignty of the flag State.[41] Interference is here understood to mean any activity that damages the cyber infrastructure or significantly impairs the operation of it.[42]

Sovereign immunity is not absolute and can be lost if there is an international armed conflict.[43]

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. Art 91(1) UNCLOS.
  3. D König, ‘Flag of Ships’ (2009) in Rudiger Wolfrum Max Planck Encyclopedia of Public International Law (OUP) para 25.
  4. 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.
  5. 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”; D König, ‘Flag of Ships’ (2009) Max Planck Encyclopedia of Public International Law, at para 25.
  6. 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.
  7. Art 110(1) UNCLOS. 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 (adopted 10 March 1988, entered into force 1 March 1992) 1678 UNTS 221 (SUA Convention).
  8. Art 110 UNCLOS; 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.
  9. Art 110(1)(a-e) UNCLOS.
  10. Tallinn Manual 2.0, commentary to rule 46, para 10.
  11. 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 1 June 2005, entered into force 5 March 2007).
  12. 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.
  13. 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.
  14. Art 87(1) UNCLOS.
  15. “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).
  16. For example, Convention on the High Seas (adopted 29 April 1958, entered into force 30 September 1962) 450 UNTS 11, article 2(1).
  17. Art 90 UNCLOS.
  18. 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”.
  19. Albert Hoffman, ‘Freedom of Navigation’ in Rudiger Wolfrum Max Planck Encyclopedia of Public International Law (OUP 2011).
  20. M/V “Norstar” judgment, paras 222-223.
  21. M/V “Norstar” judgment, para 224, referred to as a “chilling effect”.
  22. Art 110 UNCLOS.
  23. Art 111 UNCLOS.
  24. M/V “Norstar” judgment, para 224 “…save in exceptional cases expressly provided for in the Convention or in other international treaties…”; Albert Hoffman, ‘Freedom of Navigation’ in Rudiger Wolfrum Max Planck Encyclopaedia of Public International Law (OUP 2011); 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 Convention on the High Seas (adopted 29 April 1958, entered into force 30 September 1962) 450 UNTS 11, Arts 22-23.
  25. Art 29 UNCLOS.
  26. The “ARA Libertad” Case (Argentina v. Ghana) (2012), order of 15 December 2012, ITLOS Reports of Judgments, Advisory Opinions and Orders 2012, 20, para 94.
  27. Ibid, para 95.
  28. Art 32 UNCLOS.
  29. Art 95 UNCLOS.
  30. Art 36 and Art 96 UNCLOS.
  31. Art 95-96 UNCLOS.
  32. Wolff Heintschel von Heinegg, ‘Warships’ (2015) in Rudiger Wolfrum Max Planck Encyclopedia of Public International Law (OUP).
  33. Art 110 UNCLOS.
  34. Art 110(1)(a-e) UNCLOS.
  35. Art 30 UNCLOS.
  36. Art 31 UNCLOS.
  37. Wolff Heintschel von Heinegg, ‘Warships’ (2015) in Rudiger Wolfrum Max Planck Encyclopedia of Public International Law (OUP).
  38. Donald Rothwell and Tim Stephens, The International Law of the Sea (Bloomsbury 2010).
  39. Tallinn Manual 2.0, commentary to rule 5, para 3.
  40. Tallinn Manual 2.0, commentary to rule 5, para 2.
  41. Tallinn Manual 2.0, rule 5; Michael Schmitt ‘Below the Threshold Cyber Operations: The Countermeasures Response Option and International Law’ (2014) 54 Va. J. Int'l L. 697.
  42. Ibid.
  43. Tallinn Manual 2.0, commentary to rule 5, para 6.