The Convention on the High Seas

Space law is usually compared to the Law of the Sea. For this new article in Space Legal Issues, let’s have a look at the Law of the Sea, and especially to the Convention on the High Seas of 1958. The treaty was signed on April 29, 1958 and entered into force on September 30, 1962. The Convention on the High Seas was superseded by the Third United Nations Conference on the Law of the Sea (UNCLOS III), which took place between 1973 and 1982 and introduced several new concepts to the law of maritime boundaries including Exclusive Economic Zones.

The Convention on the High Seas is an international treaty (an agreement under international law entered into by actors in international law, namely sovereign states and international organisations) which codifies the rules of international law relating to the high seas, otherwise known as international waters. The terms international waters or trans-boundary waters apply where any of the following types of bodies of water (or their drainage basins) transcend international boundaries: oceans, large marine ecosystems, enclosed or semi-enclosed regional seas and estuaries, rivers, lakes, groundwater systems (aquifers), and wetlands.

International waters do not belong to any State’s jurisdiction, known under the doctrine of “Mare liberum”. States have the right to fishing, navigation, overflight, laying cables and pipelines, as well as scientific research.

The Law of the Sea

Law of the Sea is a body of international law that concerns the principles and rules by which public entities, especially states, interact in maritime matters, including navigational rights, sea mineral rights, and coastal waters jurisdiction. The United Nations Convention on the Law of the Sea (UNCLOS), also called the Law of the Sea Convention or the Law of the Sea treaty, is the international agreement that resulted from the third United Nations Conference on the Law of the Sea (UNCLOS III), which took place between 1973 and 1982; it is generally accepted as a codification of customary international Law of the Sea. Disputes are resolved at the International Tribunal for the Law of the Sea (ITLOS), a court in Hamburg.

International law, also called public international law or law of nations, the body of legal rules, norms, and standards that apply between sovereign states and other entities that are legally recognised as international actors. The term was coined by the English philosopher Jeremy Bentham (February 15, 1748 – June 6, 1832). According to Bentham’s classic definition, international law is “a collection of rules governing relations between states”. It is a mark of how far international law has evolved that this original definition omits individuals and international organisations, two of the most dynamic and vital elements of modern international law.

The Convention on the High Seas

The Convention on the High Seas is divided into thirty-seven articles. Let’s look at some interesting articles of the Convention. We’ll focus on those resembling Outer Space Treaty’s ones: the definition of the “high seas”, freedom of the high seas, “flag state”, warships, assistance to any person found at sea in danger of being lost, piracy and pollution.

Article 1: “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”.

Article 2: “The high seas being open to all nations, no State may validly purport to subject any part of them to its sovereignty. Freedom of the high seas is exercised under the conditions laid down by these articles and by the other rules of international law. 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. These freedoms, and others which are recognized by the general principles of international law, shall be exercised by all States with reasonable regard to the interests of other States in their exercise of the freedom of the high seas”.

Article 3: “1. In order to enjoy the freedom of the seas on equal terms with coastal States, States having no sea coast should have free access to the sea. To this end States situated between the sea and a State having no sea coast shall by common agreement with the latter, and in conformity with existing international conventions, accord: (a) To the State having no sea coast, on a basis of reciprocity, free transit through their territory; and (b) To ships flying the flag of that State treatment equal to that accorded to their own ships, or to the ships of any other States, as regards access to seaports and the use of such ports. 2. States situated between the sea and a State having no sea coast shall settle, by mutual agreement with the latter, and taking into account the rights of the coastal State or State of transit and the special conditions of the State having no sea coast, all matters relating to freedom of transit and equal treatment in ports, in case such States are not already parties to existing international conventions”.

Article 4 concerns the “flag state” and states that “Every State, whether coastal or not, has the right to sail ships under its flag on the high seas”.

Let’s recall that the flag state of a merchant vessel is the jurisdiction under whose laws the vessel is registered or licensed, and is deemed the nationality of the vessel. A merchant vessel must be registered and can only be registered in one jurisdiction, but may change the register in which it is registered. The flag state has the authority and responsibility to enforce regulations over vessels registered under its flag, including those relating to inspection, certification, and issuance of safety and pollution prevention documents. As a ship operates under the laws of its flag state, these laws are applicable if the ship is involved in an admiralty case.

The term “flag of convenience” describes the business practice of registering a merchant ship in a state other than that of the ship’s owners, and flying that state’s civil ensign on the ship. Ships may be registered under flags of convenience to reduce operating costs, to avoid the regulations of or avoid inspection and scrutiny by the owner’s country.

Article 8: “1. Warships on the high seas have complete immunity from the jurisdiction of any State other than the flag State. 2. For the purposes of these articles, the term “warship” means a ship belonging to the naval forces of a State and bearing the external marks distinguishing warships of its nationality, under the command of an officer duly commissioned by the government and whose name appears in the Navy List, and manned by a crew who are under regular naval discipline”.

Article 12: “1. Every State shall require the master of a ship sailing under its flag, insofar as he can do so without serious danger to the ship, the crew or the passengers: (a) To render assistance to any person found at sea in danger of being lost; (b) To proceed with all possible speed to the rescue of persons in distress if informed of their need of assistance, insofar as such action may reasonably be expected of him; (c) After a collision, to render assistance to the other ship, her crew and her passengers and, where possible, to inform the other ship of the name of his own ship, her port of registry and the nearest port at which she will call. 2. Every coastal State shall promote the establishment and maintenance of an adequate and effective search and rescue service regarding safety on and over the sea and — where circumstances so require — by way of mutual regional arrangements cooperate with neighbouring States for this purpose”.

Article 14 states that “All States shall cooperate to the fullest possible extent in the repression of piracy on the high seas or in any other place outside the jurisdiction of any State” and Article 15 enounces that “Piracy consists of any of the following acts: (1) 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 a private aircraft, and directed: (a) On the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft; (b) Against a ship, aircraft, persons or property in a place outside the jurisdiction of any State; (2) 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; (3) Any act of inciting or of intentionally facilitating an act described in subparagraph 1 or subparagraph 2 of this article”.

Finally, Article 24 of the Convention on the High Seas declares that “Every State shall draw up regulations to prevent 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, taking account of existing treaty provisions on the subject” and Article 25 adds that “1. Every State shall take measures to prevent pollution of the seas from the dumping of radioactive waste, taking into account any standards and regulations which may be formulated by the competent international organizations. 2. All States shall cooperate with the competent international organizations in taking measures for the prevention of pollution of the seas or air space above, resulting from any activities with radioactive materials or other harmful agents”.

As a conclusion, we may say that the Convention on the High Seas, which will then be superseded by the Third United Nations Conference on the Law of the Sea (UNCLOS III) in 1982, has many similarities with both the 1959 Antarctic Treaty System (ATS) and both the 1963 Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, and the 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (OST).