INTRODUCTION:

The 1982 conventions defines the high seas as “all parts of the sea that are not
included in the exclusive economic zone, in the territorial sea or in the internal
waters of an archipelagic state.” Under the convention the high seas are open to all
states, whether costal or landlocked, and that the freedom of the high seas is
exercised under the conditions laid down by the convention and other rules of
International law.
THE CONVENTION ON HIGH SEAS:
Article 1 of the 1958 Convention on the High Seas states: "The 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."' With respect to the freedom of the high seas, Article 2
of that Convention states in part: "It comprises, inter alia, both for coastal and non-
coastal States: (1) Freedom of navigation; (2) Freedom of fishing; (3) Freedom to
lay submarine cables and pipelines; (4). Freedom to fly over the high seas."
Article 24 of the High Seas Convention addresses the prevention of pollution of the
seas by the discharge of oil "from ships or pipelines or resulting from the
exploitation and exploration of the seabed and its subsoil." Article 25 addresses the
prevention of pollution of the seas "from the dumping of radioactive waste."
Articles 26 to 29 of the High Seas Convention contain more detailed rules
regarding submarine cables and pipelines, including the duty of the coastal state
not to impede the laying or maintenance of such cables or pipelines on its
continental shelf. Articles 27 and 28 deal with responsibility for the breaking or
injury "of a submarine cable beneath the high seas." Articles 30–37 are about legal
framework, ratification, accession.
Jurisdiction on the high seas

The foundation of the maintenance of order on the high seas has rested upon the
concept of the nationality of the ship, and the consequent jurisdiction of the flag
state over the ship. It is, basically, the flag state that will enforce the rules and
regulations not only of its own municipal law but of international law as well. A
ship without a flag will be deprived of many of the benefits and rights available
under the legal regime of the high seas. Each state is required to elaborate the
conditions necessary for the grant of its nationality to ships, for the registration of
ships in its territory and for the right to fly its flag. The nationality of the ship will
depend upon the flag it flies, but article 91 of the 1982 Convention also stipulates
that there must be a ‘genuine link’ between the state and the ship. This provision,
which reflects ‘a well-established rule of general international law’, was intended
to check the use of flags of convenience operated by states such as Liberia and
Panama which would grant their nationality to ships requesting such because of
low taxation and the lack of application of most wage and social security
agreements. This enabled the ships to operate at very low costs indeed. However,
what precisely the ‘genuine link’ consists of and how one may regulate any abuse
of the provisions of article 5 are unresolved questions.
The International Tribunal for the Law of the Sea in M/V Saiga (No. 2) has
underlined that determination of the criteria and establishment of the procedures
for granting and withdrawing nationality to ships are matters within the exclusive
jurisdiction of the flag state, although disputes concerning such matters may be
subject to the dispute settlement procedures of the 1982 Convention. The question
of the nationality of a ship was a question of fact to be determined on the basis of
evidence adduced by the parties. The conduct of the flag state, ‘at all times
material to the dispute’, was an important consideration in determining the
nationality or registration of a ship. The Tribunal has also confirmed that the
requirement of a genuine link was in order to secure effective implementation of
the duties of the flag state and not to establish criteria by reference to which the
validity of the registration of ships in a flag state may be challenged by other
states. Ships are required to sail under the flag of one state only and are subject to
its exclusive jurisdiction (save in exceptional cases).Where a ship does sail under
the flags of more than one state, according to convenience, it may be treated as a
ship without nationality and will not be able to claim any of the nationalities
concerned. A ship that is stateless, and does not fly a flag, may be boarded and
seized on the high seas. This point was accepted by the Privy Council in the case
of Naim Molvan v. Attorney-General for Palestine, which concerned the seizure
by the British navy of a stateless ship attempting to convey immigrants into
Palestine.

The basic principle relating to jurisdiction on the high seas is that the flag state
alone may exercise such rights over the ship. This was elaborated in
the Lotus case, where it was held that ‘vessels on the high seas are subject to no
authority except that of the state whose flag they fly’. This exclusivity is without
exception regarding warships and ships owned or operated by a state where they
are used only on governmental non-commercial service. Such ships have,
according to articles 95 and 96 of the 1982 Convention, ‘complete immunity from
the jurisdiction of any state other than the flag state’.
Exceptions to the exclusivity of flag-state jurisdiction:
The concept of the freedom of the high seas is limited by the existence of a series
of exceptions.

Piracy:

The most formidable of the exceptions to the exclusive jurisdiction of the flag state
and to the principle of the freedom of the high seas is the concept of piracy. Piracy
is strictly defined in international law and was declared in article 101 of the 1982
Convention to consist of any of the following acts:

(a)Any illegal acts of violence, detention or any act of depredation, committed for
private ends by the crew or the passengers of a private ship or private aircraft and
directed: (i) on the high seas, against another ship or aircraft, or against persons or
property on board such ship or aircraft; (ii) against a ship, aircraft, persons or
property in a place outside the jurisdiction of any state;

(b) Any act of voluntary participation in the operation of a ship or of an aircraft

with knowledge of facts making it a pirate ship or aircraft;

(c) Any act of inciting or of intentionally facilitating an act described in

subparagraph (a) or (b).

The essence of piracy under international law is that it must be committed for
private ends.

The slave trade:

Although piracy may be suppressed by all states, most offences on the high seas
can only be punished in accordance with regulations prescribed by the municipal
legislation of states, even where international law requires such rules to be
established. Article 99 of the 1982 Convention provides that every state shall take
effective measures to prevent and punish the transport of slaves in ships authorized
to fly its flag and to prevent the unlawful use of its flag for that purpose. Any slave
taking refuge on board any ship, whatever its flag, shall ipso facto be free. Under
article 110, warships may board foreign merchant ships where they are reasonably
suspected of engaging in the slave trade; offenders must be handed over to the flag
state for trial.

Unauthorized broadcasting:

Under article 109 of the 1982 Convention, all states are to co-operate in the
suppression of unauthorized broadcasting from the high seas. This is defined to
mean transmission of sound or TV from a ship or installation on the high seas
intended for reception by the general public, contrary to international regulations
but excluding the transmission of distress calls. Any person engaged in such
broadcasting may be prosecuted by the flag state of the ship, the state of registry of
the installation, the state of which the person is a national, any state where the
transmission can be received or any state where authorized radio communication is
suffering interference. Any of the above states having jurisdiction may arrest any
person or ship engaging in unauthorized broadcasting on the high seas and seize
the broadcasting apparatus.

Hot pursuit:

The right of hot pursuit of a foreign ship is a principle designed to ensure that a
vessel which has infringed the rules of a coastal state cannot escape punishment by
fleeing to the high seas. In reality it means that in certain defined circumstances a
coastal state may extend its jurisdiction onto the high seas in order to pursue and
seize a ship which is suspected of infringing its laws.

The right, which has been developing in one form or another since the nineteenth
century, was comprehensively elaborated in article 111 of the 1982 Convention,
building upon article 23 of the High Seas Convention, 1958.
Collisions:

Where ships are involved in collisions on the high seas, article 11 of the High Seas
Convention declares, overruling the decision in the Lotus case, that penal or
disciplinary proceedings may only be taken against the master or other persons in
the service of the ship by the authorities of either the flag state or the state of which
the particular person is a national. It also provides that no arrest or detention of the
ship, even for investigation purposes, can be ordered by other than the authorities
of the flag state. This was reaffirmed in article 97 of the 1982 Convention.

Treaty rights and agreements:

In many cases, states may by treaty permit each other’s warships to exercise
certain powers of visit and search as regards vessels flying the flags of the
signatories to the treaty.337 For example, most of the agreements in the nineteenth
century relating to the suppression of the slave trade provided that warships of the
parties to the agreements could search and sometimes detain vessels suspected of
being involved in the trade, where such vessels were flying the flags of the treaty
states.

Pollution:

Article 24 of the 1958Convention on the High Seas called on states to draw up

regulations to prevent the pollution of the seas by the discharge of oil or the
dumping of radioactive waste, while article 1 of the Convention on the Fishing and
Conservation of the Living Resources of the High Seas, of the same year, declared
that all states had the duty to adopt, or cooperate with other states in adopting, such
measures as may be necessary for the conservation of the living resources of the
high seas. Although these provisions have not proved an unqualified success, they
have been reinforced by an interlocking series of additional agreements covering
the environmental protection of the seas. The International Convention relating to
Intervention on the High Seas in Cases of Oil Pollution Casualties, signed in 1969
and in force as of June 1975, provides that the parties to the Convention may take
measures on the high seas.