Flag State Jurisdiction On The High Seas International Law Essay

Flag State Jurisdiction On The High Seas transnational truth EssayThis essay pull up stakes focus on the globally recognized right of savoury following and the rights and duties that lay upon the coastal avers pursuing channelizes (pursuing aircrafts leave behind not be included here). Since name 23 of the geneva traffic pattern on the High Seas (1958) has been revised into phrase 111 unite Nations Convention on the Law of the Sea, the following text will in that respectfore mainly refer to the latter convention. It is important to notice that both conventions reflect multinational customary integrity in this argona. This gives the conditions that ar set up in the conventions a wider significance, since not tho the enounces that hold in adopted the conventions are bound by the right of heatable avocation kingdomd there.The focus will be on the following questions What is the nature of warm interest group and what are the international legal conditions that keep to be set up in aim to consummation it? What is the objective of the right of hot pursual? To answer the latter question, the focal point will be on what power the hot chase representually fill since it at first sight could be seen as a way for the coastal state to extend their reign and jurisdiction to include foreign channelises on the risque seas, something that in world(a) is supposed to be reserved to the sag state. glowing pastime is not the only exception to the thole state principle. As will be seen below, piracy, slave trade, unauthorized broadcasting and major(ip) pollution incidents are other examples of exceptions to the flag state principle, but, given the limited scope of this essay, there would not be much said about each exception if all of them were included in this essay.1.2. purpose and desireThe purpose of this essay is to clarify the international recognized conditions for a state to exercise the relatively extensive right of hot followin g and to critically examine the objectives of this right. Since this is a rather far-reaching right, being a derogation from the general rule prohibiting any interference by a state with non-national ventures on the tall seas, it is important to examine the original objectives behind hot pursuit and what function it presentually fills. Since this is a rather far-reaching right that is limiting the jurisdiction of the flag state on the senior broad(prenominal) seas (and in a way therefore also affect the granting immunity of the high seas),The essay will have the following disposition First, the emancipation of the high seas will be described in short to deceaseher with the principle of flag state jurisdiction (section 2), to give a qualified background to the reader. Thereafter, the circumstances which serve as prerequisites for the exercise of hot pursuit will be examined.2. Jurisdiction on the high seas2.1. The freedom of the high seas an overview invariably since the ei ghteenth century the high seas1have been open to all states, with no state able to claim reign over any part of it. This concept, called the freedom of the high seas, was developed as opposed to the closed seas-principle which was claimed by Portugal and Spain in the fifteenth and sixteenth centuries, leading to a division of the seas of the world between the 2 powers in 1506.2However, the high seas are nowadays subject to res communis and the general rule is that states cannot in principle control the activities and the whereabouts of other states on the high seas.3The freedom of the high seas has been traditionally established in customary international impartiality but the first draft of codification was formulated in the Resolution on the Laws of Maritime Jurisdiction by the outside(a) Law Association in 1926, which declared that no state whitethorn claim any right of sovereignty over any portion of the high seas or place any obstacle to the free and full use of the high sea s4. The principle of the freedom of the high seas was eventually also declared in the Geneva Convention on the High Seas (1958) as well as in the 1982 United Nations Convention on the Law of the Sea (the first hereinafter referred to as GCHS and the latter as UNCLOS). These conventions clarified international customary law and made it easier to comprehend. Some articles in the conventions will be brought into light in the text below in order to give a clear and fuller view of the subjects presented.Some of the key-principles regarding the high seas are stated in article 2 GCHS and article 87 and 89 UNCLOS, which affirm that the high seas are open to all states and that no state may validly purport to subject any part of them to its sovereignty. Further more than, article 87 UNCLOS states that the freedom of the high seas includes inter alia the freedoms of sailing, overflight, laying of submarine cables or pipelines, the construction of coloured islands and other installations pe rmitted under international law, fishing and scientific research. However, these freedoms are to be exercised with due regard for the interests of other states and for the rights under the convention with respect to activities in the field of honor (meaning the International Seabed Area5). Worth noting is also that the high seas are reserved for peaceful purposes (article 88, UNCLOS).2.2. Flag state jurisdictionThus, the high seas have relatively far-reaching freedoms for all states, but there mustiness merely be some kind of maintenance of order and jurisdiction so that these freedoms do not get violated and used in a wrongful way by any state and so that wrongful acts on the high seas do not go unpunished. The main rule is that the state which has granted to a channel the right to sail under its flag (the flag state) has the exclusive right to exercise legislative and enforcement jurisdiction over its sends on the high seas.6It is accordingly the flag state that enforces the rules and regulations of its own municipal law as well as international law.7The general principle that the flag state alone may exercise jurisdictional rights over its ships was elaborated in the Lotus-case (1927) where the Permanent Court of International nicety held that vessels on the high seas are subject to no authority except that of the state whose flag they fly8.9The flag state-principle is nowadays also stipulated in article 92 UNCLOS (and article 6 GCHS), where it is stated that ships must sail under the flag of one state only and that they will, as a general rule, be subject to that states exclusive jurisdiction on the high seas. Each state sets up its conditions for the grant of its nationality to ships, for registration of ships and for the right to fly its flag. This was declared by the International Tribunal for the Law of the Sea in the M/V Saiga (No.2) case, where one concluded that the determination of the criteria and procedures for granting and withdrawing nati onality to ships are parts of the flag states exclusive jurisdiction.10The nationality of the ship depends accordingly upon the flag the ship flies, but there must be a accepted link between the state and the ship.11The requirement of a genuine link was intended to counter the use of flags of convenience (often operated by states much(prenominal) as Liberia and Panama) where states grant their nationality to ships looking for favorable taxation and work- and social agreements.12However, if a ship sails under the flags of more than one state according to convenience, the ship does not have any nationality in a juridical point of view and may therefore be boarded and secured on the high seas by any state. This is to be compared with ships that do have a flag, which (as a general rule) only can be boarded and seized by its own flag state on the high seas.13Worth mentioning is that there are also some duties and responsibilities attached to the flag state jurisdiction, such as the ob ligation to legislate to make it an offense to break or injure submarine cables and pipelines under the high seas. Furthermore, the flag state also has to stand for compensation in case such an umbrage occurs and to adopt and enforce legislation dealing with assistance to ships in distress in compliance with international duties regarding safety at sea.14When it comes to warships and ships owned or operated by a state where they are used only on political non-commercial service, the exclusivity of the flag state-principle is applicable without exception. As can be read in articles 95 and 96, UNCLOS, those ships have comp allowe immunity from the jurisdiction of other states than its flag state.15Though, the principle of flag state jurisdiction on the high seas is not absolute. It is subject to some exceptions in which third states may share enforcement or legislative jurisdiction (or both) together with the flag state. In the following, the focus will be on the exception of hot p ursuit, but some other exceptions worth mentioning are piracy, unauthorized broadcasting, slave trade, drug trafficking and major pollution incidents.16The right of hot pursuit is however different from the other exceptions to the flag state principle, since the right of hot pursuit derives from jurisdiction under the territorial reserve (+ EEZ and Continental shelf?) principle whereas enforcement related to slave trade and piracy (for example) derives from jurisdiction based on the universality principle.173. Hot pursuit an exception to flag state jurisdiction3.1. Historical background and objectiveWhen a foreign ship has infringed the rules of a costal state, the right of hot pursuit makes it possible for the state to travel along and seize the ship outside its territorial sea in order to ensure that the ship does not escape punishment by fleeing to the high seas. This principle limits the freedom of the high seas and represents an exception to the exclusive jurisdiction of the flag state on the high seas, since it makes it possible for the coastal state to follow and seize a ship registered in other(prenominal) flag state and in this way extend its jurisdiction onto the high seas.18The right of hot pursuit is an act of necessity which is institutionalized and restricted by state practice. It emerged in its present form in Anglo-American practice in the first half of the nineteenth century.19In England there was an old rule of fresh pursuit where the role of the pursuer was played by a mere individual, unlike todays hot pursuit where the pursuer must be played by a person in his official capacity or by a member of a authentic authority (see below).20The principle has now been recognized in international customary law for a long time. The Im alone-case, 1935, can lead as an example, where it was stated that warships or legions aircrafts of a state are allowed to engage in hot pursuit if a foreign ship has violated that states laws within its congenita l irrigate or territorial sea and to make an arrest on the high seas.21The Hague Codification of 1930 served as an evidence of general recognition of the right of hot pursuit by states when it provided the basis for the draft article adopted by the International Law Commission which later on became article 23 of the Geneva Convention on the High Seas of 1958.22The objective of the right of hot pursuit is to make it possible for states that are exposed to delicts made by non-national ships to bring the escaping traumatizeers before its jurisdiction. In this way the high seas may not provide a safe haven for ships having committed a delict within a states maritime jurisdictional zones. Hot pursuit could be seen as contrary to the exclusive principle of flag state jurisdiction on the high seas, but seen in the light of the high seas, it is not reckless to conclude that the right of hot pursuit is in accord with the objective of order on the high seas.23Moreover, the right of hot pur suit has a preventive function derived from the psychological effect of the increased disciplinary rights that the violated coastal state is entitled to. The psychological effect is not to be underestimated since it could prevent wrongdoers to undertake illegal activity, knowing that they may be prosecute, arrested and punished by the authorities of the state whose laws have been violated.24Pursuit onto the high seas does not offend the territorial sovereignty of any state and it involves no intrusion into foreign rule since there is no sovereign to the high seas, except the state of the flag. To let the flag state principle stand in the way for effective administration of justice when a ship has committed a delict in another states juridical maritime zones has been seen as disproportionate, hence hot pursuit has become an international right for coastal states, regardless of the flag of the ship. Furthermore, the right of hot pursuit is a right of necessity since the coastal state would not be able to enforce its laws and regulations against fleeing ships without being able to pursue them.253.2. Legal statusAs mentioned above (section 2.1.), the right of hot pursuit was codified and recognized by states in the Hague Codification in 1930, which led to the development of article 23 of the Geneva Convention on the High Seas (1958). The provisions on hot pursuit in article 23 GCHS was thereafter essentially reproduced in article 111 of the United Nations Convention on the Law of the Sea (1982), comprising the new developments in the international law of the sea, such as the generated rights followed by the establishment of the new jurisdictional zones of the Continental shelf and the exclusive economic zone.26Since article 111 UNCLOS is a renewed definition of the right of hot pursuit, it is the definition stated in UNCLOS that is the most updated and will be in focus below.Article 111 UNCLOS has the title Right of hot pursuit and contains eight paragraphs, in c omparison to article 23 GCHS which only has seven paragraphs. (See the addition for the full and exact wording of article 111 UNCLOS). Article 111 declares the coastal states right to engage in hot pursuit and lays down a number of additive conditions under which this right may be exercised. These conditions have been set up in order to eliminate abuse and incorrect exercise of hot pursuit by the coastal states, such as situations where the wrong ship is pursued by accident. The specific conditions are also of great importance when it comes to upholding the freedom of navigation on the high seas and to ensure that the coastal state have enough evidentiary material to support a hot pursuit before exercise it.274. International conditions and the nature of hot pursuit4.1. General conditions (ta bort?)The International Tribunal for the Law of the Sea has emphasized that the conditions laid down in article 111 UNCLOS are cumulative, which means that each one of them has to be fulfi lled in order for the hot pursuit to be lawful.28The basis for the exercise of hot pursuit is undertake in paragraph 1 of article 111 UNCLOS which notes that such pursuit may be undertaken when the authorities of the coastal state have good designer to accept that the foreign ship has violated its laws and regulations. The violation must be made within one of the costal states maritime zones, such as its internal waters, archipelagic waters, territorial sea, exclusive economic zone or its continental shelf. Furthermore, the laws and regulations that were violated must have been enacted in accordance with international law.29Thus, article 111 UNCLOS makes it possible to pursue a foreign ship onto the high seas, but with respect of international law and the principle of state sovereignty, the pursuit must cease as before long as the ship enters the territorial sea of its own flag state or any other state. Otherwise, the pursuit would end up in a violation of another states soverei gnty.304.2. Involved vesselsAs can be seen in article 111 (5) UNCLOS, the coastal state may only exercise hot pursuit through the use of certain ships and aircraft having a connection to the governmental authority of the state. Warships and military aircrafts, together with other specially authorized government ships or aircrafts which are clearly marked and identifiable as such, are the only vessels that are required to exercise the pursuit.31This limitation to vessels vested with governmental authority ensures that the pursuing state cannot avoid its state responsibility for actions made by its pursuing ships acting on behalf of the coastal state. It is not the specific authority to pursue that is of importance it is rather the general authority of applying laws and to take necessary measures in this regard. This guarantees the responsibility of a state for the actions made by its ships operating under the government. A states official connection to military aircrafts or warships needs not to be manifested since this connection is self-evident, thus, other pursuing vessels need to be specifically authorized by the state to exercise these measures.32 commercial message ships in government service as well as private ships are subject to the jurisdiction of the coastal state and can be pursued if there is good reason to believe that a violation of the laws have been made. However, it is not in accordance with international law to exercise hot pursuit against other states warships. These, together with other non-commercial ships operating under a foreign government, are generally immune from the jurisdiction of any state other than the flag state. Although these ships are excepted from a coastal states right of hot pursuit, this does obviously not mean that they do not have to follow the laws and regulations of the coastal state. The only immunity warships enjoy is the immunity from enforcement jurisdiction of the coastal state, so the flag state might have to a nswer for the violation made by one of its governmental ships. Furthermore, the coastal state may pursue and arrest warships and non-commercial ships in foreign government service in self-defense.334.3. OffencesThe right of hot pursuit arises whenever the offending ship has violated a law which has been validly enacted for the purpose of the zone where the offensive activity has occurred34. In order to be entitled to hot pursuit, the coastal state has to have good reason to believe that the foreign ship has made such an offence, or as it is stated in article 111 (1) UNCLOS violated the laws and regulations of that State35. The article states no predefined offences, so what kind of offences does this actually refer to? There is in fact no limit of how severe the delict must be in order to entitle the state to hot pursuit. The coastal state is entitled to undertake hot pursuit as soon as any local law or regulation has been violated, no matter how trivial. The wording in article 111 UNCLOS allows hot pursuit whenever a law has been violated, no matter what the character of the offence is.36There has been a view that the right of hot pursuit should arise only in respect of certain kinds of offences which could be considered as quasi-international offences (such as security offences), but the predominant view at the time of the Geneva Conference was that there should be no catalogue restricting the right of hot pursuit to offences of a certain character.37The seriousness of the offence should however be taken into account by the coastal state before starting a pursuit, so that the freedom of navigation is not hindered for small fry offences.38This would otherwise root in a disproportionate exercise of power.39Furthermore, international comity and goodwill can be seen as important reasons why a coastal state should not exercise in response to trivial offences. Naturally, this principle of comity does not lawfully bind the coastal state to behave in a certain w ay, since it is not a principle under international law. In general, states are however anxious to submit to this principle of comity, since it is in their own best interest to show respect to other sovereign states. A state that does not act hospitably to other states and pursues their ships without good reason may be subject to the same abuse when its own merchant fleet navigates in other states territorial seas. Except taking comity into account, states decision to exercise hot pursuit is also based on the practical reality that states are not seeming to find minor offenders worth the trouble of pursuit. Besides, ships guilty of trivial offences are unlikely to risk the dangers of flight in the hope of avoiding arrest for a minor delicts. Although such flight could indicate that the ship has been engaged in a delict that is much less trivial than the coastal state first suspected.40The nature of the offence entitling the state of hot pursuit is related to the competency to enact laws for the different maritime zones. In the territorial sea this competence is unlimited (except for the right of unsophisticated passage), but regarding the contiguous zone or other zones of extraterritorial jurisdiction, the states competence to make acts offences is restricted since these are zones of limited jurisdiction. The right of hot pursuit arises when an offence has been made within one of these zones, but it is provided that the offence is made against laws which international law allows to be enacted for the purposes of that zone.41Article 111 (1) UNCLOS sets up the condition that a state must have good reason to believe that a ship has violated the states laws and regulations. This good reason standard prevents states from pursuing a foreign ship entirely based on the suggestion that an offence has been made by it. However, this condition does not require that the coastal state has actual knowledge of an offence. The proper rendition of this good reason condition lies somewhere between suspicion and actual knowledge of an offence. In regard to this, the mere flight of a vessel could be sufficient to justify hot pursuit, since it could give the state a suspicion that the ship is trying to flee from the consequences of an offence made by it. Even though the state originally lacked good reason to believe that the ship had made an offence, this suspicious behavior could be enough to live up to the good reason standard.42Offences that are not attributed to the foreign vessel itself do not lay ground for hot pursuit, for example when an offence is committed by a passenger. The coastal states jurisdiction is towards the ship only, the passengers and crew remain under the jurisdiction of the flag state as long as their actions are not attributable to the ship itself. Robert C. Reuland states that the delict must have been committed under the color of the ships authority43in order to give rise to hot pursuit. Finally, when it comes to offences, one c an conclude that there are two main conditions that have to be fulfilled in order to give right to hot pursuit first, the state must have good reason to believe that an offence has been committed and second, the offence must be attributable to the ship itself.444.4. Commencement and cessationArticle 111 (1) UNCLOS states from which maritime zones a state may commence hot pursuit under international law namely when the foreign ship (or one of its boats) is within the pursuing states internal waters, archipelagic waters, territorial sea or contiguous zone.45It is only when the offence is committed within one of these zones that the coastal state may undertake hot pursuit. However, in comparison to article 23 GCHS, article 111 (2) UNCLOS is more extensive and stipulates that the right applies mutatis mutandis to violations of legislation applicable to the exclusive economic zone or the continental shelf (including safety zones around continental shelf installations).46The right to begi n hot pursuit while the foreign ship is within the contiguous zone is limited to the enforcement of certain rights, that is to say if there has been a violation of the rights for the protection of which the zone was established.47Robert C. Reuland mentions that although a states legislative jurisdiction within the contiguous zone may not be limited to the four purposes set out in both sea conventions, such laws should nevertheless be limited to the protection of the states territory and territorial sea. It follows that hot pursuit may not be commenced from the contiguous zone for violations of laws that do not reasonably comport with the littoral states legislative competence with respect to this zone.48. Whether pursuit may start while the ship is in the continental shelf or in the exclusive economic zone is more directly an aspect of the question whether the violation was made against legislation relation to these zones, than in the case of the contiguous zone. The offence is more directly related to the governance of the zone.49The state may enact laws consistent with the sovereign rights in these zones, for example relating to protection of fisheries etc in the case of the exclusive economic zone. Similarly, the violation of any law enacted by the coastal state that is consistent with the states sovereign rights over the continental shelf may give rise to the right of hot pursuit.50The right of hot pursuit ceases as soon as the pursued ship enters the territorial waters of its own or a third state.51To continue therein would result in a violation of that states sovereignty and that is accordingly offending international law.52This general rule may however be put aside where hot pursuit in another states territorial sea is permitted by treaty.53It is important to mention that the general rule of cessation at the territorial sea of another state does not apply to other maritime zones beyond the territorial sea, so the pursuing state may actually pursue the foreign ship into the exclusive economic zone or even the contiguous zone of another state. Such zones are to be considered as high seas when it comes to hot purs