High seas

Question 1

Montego Bay, Art. 87, 89, 90

Answer 1

1. The high seas are open to all States, whether coastal or landlocked:
   The freedoms of the high seas comprise, inter alia:
   - freedom of navigation
   - freedom of overflight
   - freedom to lay submarine cables and pipelines
   - freedom to create artificial islands and other installations authorized under international law
   - freedom of scientific research
   - freedom of fishing
2. These freedoms shall be exercised by all States with due regard for the interests of other States in their exercise of the freedoms of the high seas

Art. 89
No State may validly purport to subject any part of the high seas to its sovereignity

HIGH SEAS= RES COMMUNIS

Art. 91
Every State, whether coastal or land-locked, has the right to sail ships flying its flag on the high seas

Question 2

Montego Bay, Art. 91, 92, 94, 105

Answer 2

Art. 91
Every State shall fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory and for the right to fly its flag. Ships have the nationality of the State whose flag they are entitled to fly. There must a genuine link between the State and the ship

Art. 92
Ships shall sail under the flag of one State only and, save in exceptional cases…shall be subject to its exclusive jurisdiction on the high seas

Art. 94
Every State shall effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag.
PROBLEM OF FLAGS OF CONVENIENCE.

EXCEPTION= PIRACY
In customary international law= any act of violence committed by a private ship against another ship on the high seas animo furandi (= for depredation)
Pirate= hostis humani generis (enemy of humankind)– universal jurisdiction
UNIVERSAL JURISDICTION GRANTED BY ART. 105
On the high seas, or in any other place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board.

Question 3

Montego Bay, Art. 111

Answer 3

1. The hot pursuit of a foreign ship may be undertaken when the competent authorities of the coastal State have good reason to believe that the ship has violated the laws and regulations of that State. Such pursuit must be commenced when the foreign ship or one of its boats is within the internal waters,… the territorial sea or the contiguous zone of the pursuing State, and may only be continued outside the territorial sea or the contiguous zone if the pursuit has not been interrupted. It is not necessary that, at the time when the foreign ship within the territorial sea or the contiguous zone receives the order to stop, the ship giving the order should likewise be within the territorial sea of the contiguous zone
   
   2. The right of hot pursuit shall apply mutatis mutandis to violations in the exclusive economic zone or on the continental shelf…of the laws and regulations of the coastal State applicable…to the exclusive economic zone or the continental shelf
   3. The right of hot pursuit ceases as sson as the ship pursued enters the territorial sea of its own State or of a third State
   4. Hot pursuit is not deemed to have begun unless the pursuing ship has satisfied itself by such pacticable means as may be available that the ship pursued or one of its boats or other craft working as a team and using the ship pursued as a mother ship is within the limits of the territorial sea, or, as the case may be, within the contiguous zone of the exlusive economic zone or above the continental shelf (= constructive presence). The pursuit may only be commenced after a visual or auditory signal to stop has been given at a distance which enables it to be seen or heard by the foreign ship.

Question 4

Montego Bay, Art. 110 right of visit

Answer 4

RIGHT OF VISIT

1. Except where acts of interference derive from powers conferred by treaty, a warship which encounters on the high seas a foreign ship…is not justified in boarding it unless there are is reasonable ground for suspecting that:
   a. the ship is engaged in piracy
   b. the ship is engaged in slave trade
   c. the ship is engaged in unauthorized broadcasting and the flag State of the warship has jurisdiction
   d. the ship is without nationality
   e. through flying a foreign flag or refusing to show its flag, the ship is, in reality, of the same nationality as the warship
   
   2. In the cases provided in paragraph 1, the warship may proceed to verify the ship’s right to fly its flag. To this end, it may send a boat under the command of an officer to the suspected ship. If suspicion remains after the documents have been checked, it may proceed to a further examination on board the ship, which must be carried out with all possible consideration
   3. If the suspicions prove to be unfounded, and provided that the ship boarded has not committed any act justifying them, it shall be compensanted for any loss or damage that may have been sustained

Question 5

The deep seabed

Answer 5

THE DEEP SEABED– THE AREA
The deep seabed entails exhaustible natural resources
UNGA’s declaration: beyond national jurisdiction: the seabed and ocean floor, and the subsoil thereof, beyond the limits of national jurisdiction, as well as the resources of the area, are the common heritage of mankind (= customary international law)

DEEP SEABED AS COMMON HERITAGE OF HUMANKIND
9. On the basis of the principles of this Declaration, an international régime applying to the Area and its resources and including appropriate international machinery to give effect to its provisions shall be established by an international treaty of universal character, generally agreed upon. The régime development and rational management opportunities in the use thereof, and ensure the equitable sharing by States in the benefits derived therefrom, taking into particular consideration the interests, and needs of the developing countries, whether land-locked or coastal.

PART XI OF THE TREATY HAS BEEN REJECTED BY THE US; AGREEMENT RELATING TO THE IMPLEMENTATION OF PART XI OF THE UNCLOS HAS BEEN CONCLUDED, BUT THE US IS STILL OUT.
The problem before was that the provisions were too much favourable to developing States.

PART XI
INTERNATIONAL SEABED AUTHORITY:
- Assembly
- Council
- Secretariat
- Enterprise
Resource exploitation: States parties (or companies sponsored by them) may explore and find a site (mineral deposit):
- 1/2 will be mined by the State/ sponsores private operators; 1/2 will be mined by the Enterprise (initially in joint ventures with operators)