Law of the sea: Difference between revisions

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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.<ref>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).</ref> 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.<ref>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.</ref> Very few resolutions have required States to exercise their enforcement jurisdiction over foreign vessels without the flag-State’s consent.<ref>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. </ref>
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.<ref>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).</ref> 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.<ref>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.</ref> Very few resolutions have required States to exercise their enforcement jurisdiction over foreign vessels without the flag-State’s consent.<ref>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. </ref>
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== Freedom of navigation ==
{| class="wikitable mw-collapsible"
![[Law of the sea#Freedom of navigation|Freedom of navigation]]
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|Article 87(1) UNCLOS provides a freedom of navigation to ships on the high seas<ref>UNCLOS, Part VII, Art 87 (1).</ref>. This freedom also exists in customary international law<ref>“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).</ref> and other treaties<ref>For example, ''Convention on the High Seas'' (adopted 29 April 1958, entered into force 30 September 1962) 450 UNTS 11, article 2(1).</ref>.

This gives all States the right to sail ships flying its flag on the high seas<ref>UNCLOS, Part VII, Art 90.</ref> and a ship is entitled to exercise its freedom of navigation without being subject to the jurisdiction of a foreign State<ref>''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”.</ref>. In essence, this means that the ship has “the right to traverse the high seas with no or minimal interference from any other State”<ref>Albert Hoffman, ‘Freedom of Navigation’ in Rudiger Wolfrum ''Max Planck Encyclopaedia of Public International Law'' (OUP 2011).</ref>.

In the Norstar Judgment, the Tribunal made clear that any interference with a ship’s navigation by a foreign State would breach Article 87<ref>''M/V “Norstar” judgment'', para 222.</ref>, including interferences which are not physical<ref>''M/V “Norstar” judgment'', para 223.</ref>. 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<ref>''M/V “Norstar” judgment'', para 224, referred to as a “chilling effect”.</ref>. 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<ref>UNCLOS, Part VII, Art 110.</ref> and hot pursuit<ref>UNCLOS, Part VII, Art 111.</ref>), or provided for in another international treaty<ref>''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 Geneva Convention on the High Seas (entered into force 30<sup>th</sup> September 1962) 450 UNTS 11, Arts 22-23.</ref>, or in customary international law.
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Revision as of 12:59, 29 July 2020

Overview

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

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,[7] which grants a ‘right of visit’ to States that are not a vessel’s flag State. 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,[9][slavery,[10] or unauthorised broadcasting,[11] or that the vessel is either without nationality or, in reality, of the same nationality as the inspecting State[12]. Whether the right of visit may be carried out using cyber means is unclear and disputed.[13]

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.[14] 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.[15] Very few resolutions have required States to exercise their enforcement jurisdiction over foreign vessels without the flag-State’s consent.[16]

Freedom of navigation

Freedom of navigation
Article 87(1) UNCLOS provides a freedom of navigation to ships on the high seas[17]. This freedom also exists in customary international law[18] and other treaties[19].

This gives all States the right to sail ships flying its flag on the high seas[20] and a ship is entitled to exercise its freedom of navigation without being subject to the jurisdiction of a foreign State[21]. In essence, this means that the ship has “the right to traverse the high seas with no or minimal interference from any other State”[22].

In the Norstar Judgment, the Tribunal made clear that any interference with a ship’s navigation by a foreign State would breach Article 87[23], including interferences which are not physical[24]. 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[25]. 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[26] and hot pursuit[27]), or provided for in another international treaty[28], or in customary international law.

Appendixes

See also

Notes and references

  1. ↑ United Nations Convention on the Law of the Sea, (adopted 10 December 1982, entered into force 1 November 1994), 1833 UNTS 397
  2. ↑ UNCLOS, Art 91(1).
  3. ↑ D König, ‘Flag of Ships’ (2009) in Rudiger Wolfrum Max Planck Encyclopaedia 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 Encyclopaedia 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. ↑ UNCLOS, 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 (adopted 10 March 1988, entered into force 1 March 1992) 1678 UNTS 221 (SUA Convention).
  8. ↑ UNCLOS, 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.
  9. ↑ UNCLOS, Part VII, Art 110 (1) (a).
  10. ↑ UNCLOS, Part VII, Art 110 (1) (b).
  11. ↑ UNCLOS, Part VII, Art 110 (1) (c).
  12. ↑ UNCLOS, Part VII, Art 110 (1) (d-e).
  13. ↑ Tallinn Manual 2.0, commentary to rule 46, para 10.
  14. ↑ 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).
  15. ↑ 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.
  16. ↑ 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.
  17. ↑ UNCLOS, Part VII, Art 87 (1).
  18. ↑ “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).
  19. ↑ For example, Convention on the High Seas (adopted 29 April 1958, entered into force 30 September 1962) 450 UNTS 11, article 2(1).
  20. ↑ UNCLOS, Part VII, Art 90.
  21. ↑ 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”.
  22. ↑ Albert Hoffman, ‘Freedom of Navigation’ in Rudiger Wolfrum Max Planck Encyclopaedia of Public International Law (OUP 2011).
  23. ↑ M/V “Norstar” judgment, para 222.
  24. ↑ M/V “Norstar” judgment, para 223.
  25. ↑ M/V “Norstar” judgment, para 224, referred to as a “chilling effect”.
  26. ↑ UNCLOS, Part VII, Art 110.
  27. ↑ UNCLOS, Part VII, Art 111.
  28. ↑ 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 Geneva Convention on the High Seas (entered into force 30th September 1962) 450 UNTS 11, Arts 22-23.
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