AN OVERVIEW OF FREEDOM OF THE HIGH SEAS

BY HEMANT CHAUDHRY

LEGAL INTERN, HK LAW OFFICES

ABSTRACT

The idea of the freedom of the high seas has been a focal issue in an assortment of international clashes. In the sixteenth and seventeenth centuries, the Dutch and British didn’t acknowledge the authority of the Portuguese and Spanish over huge parts of the sea. In the seventeenth century a genuine clash emerged between the Dutch and the British concerning the understanding of the freedom of seas. In the eighteenth and nineteenth hundreds of years, nonetheless, the standard of the freedom of seas acquired general acknowledgment alongside the possibility that each coastal State ought to be qualified for practice its sovereignty over a restricted belt of the sea nearby its coasts.[1] During the 1800s there were two significant patterns. The first being the developing significance of freedom of high seas in view of the industrial revolution, the second being Great Britain’s incomparability over the seas. 

INTRODUCTION

To comprehend the legal parts of the freedom of high seas, it is necessary to deal at any rate as a rule terms with the distinctive present-day and likely uses of the seas. As the principle of the freedom of seas has just an orientation on the high seas the following inquiry which is to be talked about is the meaning of the great seas. The third and most significant issue which merits thought is the nature and extent of the freedom of the high seas. Freedom of seas is a principle in the International law and sea. It stresses freedom to explore the seas. It additionally dislikes war battled in water. The freedom is to be penetrated uniquely in a vital international agreement. 

The United States’ partners Britain and France were against this point, as the United Kingdom was likewise an extensive maritime force at that point. Likewise with Wilson’s different focuses, freedom of seas was dismissed by the German government. Today, the principle of “freedom of seas” can be found in the United Nations Convention on the Law of the Sea under Article 87(1) which expresses: “the high seas are open to all states, whether coastal or land-locked”. Article 87(1)[2] (a) to (f) gives a non-thorough list of freedoms including navigation, overflight, the laying of submarine cables, building artificial islands, fishing and scientific research. This list was not intended to be the most important thing in the world of the freedom of seas. This is a result of a few reasons; similar to the way that sea innovation is continually creating and changing, so it is difficult to predict what the use of the high seas will look like sometime later.[3] Another reason is that states cannot control the activities of other states at the high seas, so its users are free to do as they please, barring some restrictive rules.[4]

FREEDOM OF THE HIGH SEAS

Article 87(1)[5] talks about the various freedom of the high seas. The high seas are open to all States, whether coastal or land-locked. Freedom of the high seas is exercised under the conditions laid down by this Convention and by other rules of international law. It comprises, inter alia, both for coastal and land-locked States: 

(a) freedom of navigation;

(b) freedom of overflight; 

(c) freedom to lay submarine cables and pipelines, subject to Part VI; 

(d) freedom to construct artificial islands and other installations permitted under international law, subject to Part VI; 

(e) freedom of fishing, subject to the conditions laid down in section 2; 

(f) freedom of scientific research, subject to Parts VI and XIII.

1) Freedom of Navigation

The freedom of navigation has for clear reasons been a vital one for quite a while. It is referenced in the overall Article 87, yet in addition in article 90, which declares that each state (coastal or land-locked) has the right to sail ships flying its flag on the high seas. This freedom applies to a wide range of vessels, be it merchant ships, ships in public service, warships or some other kind of ship. Neither is it pertinent what the force source is, it very well may be an engine, thermal power or the wind. As referenced previously, land-locked states can enjoy this freedom also. This was acknowledged in International law as ahead of schedule as 1919 in the Versailles Treaty.[6] Practicably a vessel has the identity of the state where it is registered. It is up to the actual states to choose in their homegrown enactment on the conditions that apply while allowing a vessel their nationality. Be that as it may, there must regardless be a certified connection between the state and the vessel. This bond conveys with it certain rights and commitments for both the vessel and the state.

2) Freedom of Fishing

The freedom of fishing is there under Article 116[7], which says that all states have the right for their nationals to take part in fishing on the high seas. The article promptly proceeds to specify that this right isn’t absolute, yet is indeed confined. Note that by far most of fishing happens inside 200 miles from the coastline, and accordingly fall outside the extent of the law relevant to the high seas. Notwithstanding, there are some fish stocks that live in the high seas, for in any event a piece of their life cycle. Various states have voluntarily limited their passageway, since this freedom obviously benefitted those states with the right development and capital most. In those districts where fishing isn’t confined, overfishing much of the time occurs. States are under an obligation to take the imperative measures to screen and manage the living resources of the high seas. Such measures should not separate at all against fishers of a particular state. To achieve this states are resolved to participate. This commitment of cooperation is extremely questionable. 

There have been a couple of issues with fishing at the high seas, amazingly the maltreatment of riding stocks, the usage of large scale extension driftnets and free-riding. Certain driftnets used during the 1980s were moreover called ‘walls of death’, since the target fish were caught, yet furthermore various types of fish, marine very much developed animals and birds. Such fishing quickly ended up being vivaciously bad and incited a blacklist by various affiliations. This has incited an extensive decrease in the activity, yet sadly enough not a total annihilation. Another issue overall fishery has been defied with is free-riding.

3) Freedom to lay submarine cables and pipelines

For this specific freedom, Article 112[8] is the principle important provision. The freedom additionally applies to the EEZ, as Article 58 of a similar deal shows us. Archipelagic states need to regard existing submarine cables and pipelines in their archipelagic waters. They likewise can’t reject works for support or substitution; however they reserve the option to be informed of such works in advance.[9]

This freedom has been in global law for a long while. There was at that point a show on submarine message and phone links in 1884, which just applies to the zone outside of the territorial zone and in peacetime.[10] International and domestic law about submarine cables and pipelines has to a great extent been founded on this show, in light of the similarities among pipelines and links. This is likewise why those two have reliably been managed together. There are, nonetheless, some significant contrasts among links and pipelines, similar to the way that pipelines can conceivably cause marine pollution.

4) Freedom of overflight

The freedom of overflight is generally associated with air law and less to sea law. More detailed rules about this were not made by sea law, out of a longing not to infringe on air law’s domain. It was not the intention of any of the law of the sea conventions to settle matters identified with air law.[11]

The convention essentially expresses that the airspace over the high seas is available to airplanes of all states for serene purposes. The rule that states can’t subject pieces of the great seas to their power obviously applies to the airspace over the high seas also. On account of overflight, this isn’t total. This is a limitation on the freedom of overflight.

5) Freedom of Scientific Research

This freedom is portrayed in Articles 238 to 257 of the convention, which expresses that each state has the option to lead marine scientific research, additionally in the waters past the restrictions of the Exclusive Economic Zone. The convention doesn’t offer a meaning of sea life logical research.[12] Research associated with the continental shelf anyway is held for the beach coastal state.[13] This infers that if the continental shelf goes beyond 200 nautical miles, this freedom doesn’t matter to that specific part of the high seas. 

Concerning the Area, all states and International Organizations have to one side to lead logical examination. This is the seabed and the earth beyond the coastal state’s jurisdiction. This research should be possible by the International Seabed Authority, who can likewise make contracts in such manner. Regardless, it must be directed for quiet purposes and the advantage of humankind overall.[14]

6) Freedom to construct artificial islands and other installations

First we need to build up what precisely is meant by ‘artificial islands’. The most part acknowledged definition is that an artificial island is a development encircled by the ocean, that isn’t an island or a boat. States are allowed to build such articles, yet this opportunity isn’t without its impediments. For a certain something, the International Seabed Authority’s consent is required if the establishment is made with the end goal of investigating or misusing assets that are important for humankind’s regular heritage. The vast majority of these developments are to be found in coastal waters, which implies they fall under the jurisdiction of the coastal state. This is just legitimate, since they are generally used to investigate or abuse the normal assets of the continental shelf or the EEZ, similar to gas and oil. Yet, there are likewise fake islands that are utilized for reasons for a logical, military or segment nature. 

CONCLUSION

The current system of the high oceans is the final product of a long development, beginning with the Ancient Greeks. The mare liberum principle won out eventually because of the requirement with the expectation of complimentary shipping lanes all throughout the planet and was classified in the twentieth century in the Geneva Convention and later in the United Nations Convention on the Law of the Sea. The latter incorporates a non-exhaustive list of freedoms of the seas. Different freedoms have become perceived throughout the long term, like performing military moves. In any case, as a result of an assortment of reasons, it has been considered significant to limit these freedoms somewhat. Some broad limitations incorporate the sensible use rule and the rule that the seas must be utilized for peaceful purposes. Other than this class of constraints, there are likewise those that are explicit to a specific freedom. 


[1] Alison Reppy, The Grotian Doctrine of the Freedom of the Seas Reappraised, 1950, Frodham Law Review, Volume 19, Issue 3

[2] United Nations Convention on the Law of the Sea, 10th December 1982

[3] R.R. CHURCHILL and A.V. LOWE, The Law of the Sea, Manchester, Manchester University Press ND, 1988  

[4] R.R. CHURCHILL and A.V. LOWE, The Law of the Sea, Manchester, Manchester University Press ND, 1999  

[5] Supra

[6] Treaty of Versailles, Versailles, 28th June, 1919

[7] United Nations Convention on the Law of the Sea, 10th December 1982

[8] Supra

[9] Article 51(2), United Nations Convention on the Law of the Sea, 10th December 1982

[10] Convention for the Protection of Submarine Telegraph Cables, Paris, 14 March 1884  

[11] K. HAILBRONNER, Freedom of the air and the Convention on the Law of the Sea, 1983, American Journal of international Law, Volume 77, Issue 3  

[12] J.C.F. WANG, Handbook on Ocean Politics & Law, Greenwood Press, Westport, 1992  

[13] Article 246, United Nations Convention on the Law of the Sea, 10th December 1982

[14] Article 143, United Nations Convention on the Law of the Sea, 10th December 1982

Published by meghachaturvedi

Associate Partner, H.K. Law Offices

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