Wednesday, October 16, 2013



File:Berner Iustitia.jpg   To read the entire series so far in order of occurrence click here:


  The "high seas" is a term used to connote "international waters", or the "free seas" as distinguished from the territorial sea. Simply stated, the "high seas" are that portion of the oceans free of the sovereignty of any one state. in such areas all nations may navigate, fish (subject to certain conventions), lay submarine cables and pipelines, undertake scientific research, and over fly, with the exception of ADZs (Aircraft Defense Zones). The high seas are part of the "commons", that portion of the globe (and perhaps solar system) that is viewed as the common inheritance of mankind as opposed to the property of any state.

 The commons, at this writing, appears to include the high seas, the deep seabed, the atmosphere (as distinguished from the air space); possibly the Antarctic continent (subject to unresolved territorial claims); and recently (by international convention), the moon circling the earth.

 To place the high seas in the commons and to enumerate certain "freedoms of the seas" is not to say that the high seas are not and cannot become subject to international controls. Nothing precludes the family of nations from establishing conventions for the proper uses, or the creation of a comprehensive legal order over any of the commons. At this writing, there are many conventions in force and a strong and continuing movement towards a comprehensive legal order over the high seas. some of the most enduring principles of the high seas legal order are:

1. The mariner must know where the boundary between the high seas and the territorial sea of a coastal state is claimed.

 It is at this claimed interface between the high seas and the territorial seas where the mariner must move with extreme caution.  At this boundary, control shifts from customary international law and written international convention to the national law of the adjacent coastal state. The most vexing problem with this interface at the moment is the occasional lack of agreement about exactly where it is. The international community settled on 12 miles form a base line established along or parallel to the adjacent coastal state's coast line in the United Nations Convention on the  Law of the Sea (UNCLOS). But not all nations have signed aboard UNCLOS, and the convention dealt with situations such as nations facing each other across narrow arms of the sea less than 24 miles wide by requiring negotiation or binding arbitration if negotiation didn't work. In many areas of the world these potentially contentious territorial limits are still being worked out. In other areas some nations can't seem to make the distinction between the controls one may assert under the limited servitudes granted to adjacent coastal states under concepts like migratory fish conventions, Exclusive Economic Zones and Outer Continental Shelf Conventions and exercise patrols in such a way as to interfere with the legitimate freedoms of the seas applicable to the shipping of all nations within these servitude zones.

 U.S. policy is to influence international law in the direction of relatively narrow territorial sea and to deal with other regulatory needs of coastal states through more limited means. all U.S. mariners must know their mission when approaching the claimed boundary of a coastal state. If a coastal state's claimed boundary lies beyond the narrow band that the U.S. recognizes, a naval unit may have to enter the claimed zone against the will of the coastal state. The U.S. Navy did this routinely to demonstrate the illegality of Qaddafi's "Zone of Death" off of Libya in the 1980s. By contrast a merchant vessel would be entitled to innocent passage through the area even if the claim were ultimately recognized. a commercial fishing vessel fishing in the zone without permission of the coastal state would invite seizure. However, seeking permission to enter from the coastal state might invite U.S. sanctions against the U.S. fishing vessel owner. Thus the mariner needs to know where the boundary claimed by each coastal state is located and how the claim may affect what is recognized or tolerated relative to a given vessel's purpose or mission. Today, most problems are encountered with those states claiming over a 12 mile width to their territorial seas or treating their servitude areas as if they were territorial seas. Those claiming more than 12 miles are now a bit of a rarity while the second problem is growing with China, a very powerful nation being the worse violator, and being ineffectively challenged at the time of this writing.

2. Special purpose servitudes exist on the high seas and must be respected. 

   U.S. policy is that regulatory needs of coastal states on the high seas can be met through special and limited controls. such controls deal with issues such as pollution, customs enforcement, and fisheries management. These controls are viewed as legitimate servitudes upon the commons when:

     a. They do not materially interfere with traditional surface navigation rights
     b. enforcement measures are only undertaken with "probable cause"
     c. Limited regulation is based on legitimate protective efforts for the commons and not as an extension or manifestation of claimed soverignity over any part of the high seas. Typically such special-purpose servitudes include;


TO BE CONTINUED: Next a more in depth look at these servitudes.


No comments:

Post a Comment