Thursday, October 17, 2013


THE SERVITUDES THAT THE HIGH SEAS ARE SUBJECT TO: To read the entire series so far in order of occurrence click here:

File:Berner Iustitia.jpg  As described in our previous installment the "High Seas" are subject to a variety of servitudes , generally administered by the adjacent coastal states. The first and oldest of these servitudes is the right of self defense. Coastal states at war need not wait for their enemies to enter their territorial sea to engage in combat.


  C.C. Hyde, an important commentator on International Law wrote "...a state may endeavor to prevent in times of peace or war, the commission of certain acts by foreign ships or the occupant thereof, at a distance of more than three maritime miles from its coast, without claiming that the place where they occur is a part of its domain..."

  "Although without a sovereign, the high seas is, nevertheless, often times the scene of activities in which a state asserts the right to check or forbid the commission of a particular act. Yet that assertion ...does not necessarily or commonly purport to be a manifestation of dominion over waters, or control over them, but rather an interference with acts sought to be committed thereon."

 Hydes premise is widely accepted in the international community.  A nations right to carry legitimate self defense measures beyond its territorial sea is a recognized rule of international law. Therefore, the warship commander, officer of the deck, even the patrol boat coxswain must know what self defense measures are legitimate under this rule.

  Basically there are two tests for legitimacy. First, the act the coastal state's forces seek to prevent must be a clearly recognizable threat to the security of the state. Second, the measures taken to repel the threat must be reasonable.

 Based on this rule of law, Defensive Sea Areas have been recognized as a special servitude upon the high seas. Defensive Sea Areas parallel the idea of the Air Defense Identification Zones previously described. However , for a Defensive Sea Area to be lawful it can not be established or published in such a way as to deny entry of ships into the area, or in any other way appear to exercise sovereignty over any portion of the high seas.


  The freedom to fish the on the high seas is one of the most ancient provisions of the international maritime law. Yet, fishing has been the most common cause of conflict over ocean areas.  In the second half of the twentieth century the international community experienced a growing awareness that the continuance of this right would require its regulation. This basic concept was first articulated in various international conventions signed in 1958. One of these was the Geneva convention on Fishing and conservation of the Living Resources of the High Seas. Article 1 of this convention expressed this growing consensus in these terms:

"1. All states have a right for their nationals to engage in fishing on the high seas, subject (a) to their treaty obligations, (b) to the interests and rights of coastal states as provided for in this convention; and (c) to the provisions contained in the following articles concerning conservation of the living resources of the high seas"

  Since 1956 no universally accepted global fisheries regulatory scheme has evolved. Nonetheless, the principals embodied in the convention are incorporated in numerous bilateral and multilateral fishing treaties. Most regulation and management of the world's fish stocks is carried out under these treaties. The usual enforcement mechanism is through special purpose control by an adjacent coastal state or group of such states.

 The exception to the growing consensus for limited fisheries management and enforcement zones is a very small number of coastal states which use fisheries enforcement as part of a program to extend their territorial sea out to 200 miles, and China's use of such a ruse to attempt to extend extend its territorial sea and / or EEZ across the length and width of the China Seas and parts of the territorial waters of Japan and the Philippines.


 As a legal concept, the OCS lying beyond the territorial sea, is a form of servitude under the high seas in favor of the adjacent coastal state. The OCS generally consists of the seabed adjacent to the coast, but outside the territorial sea to a depth of 200 meters or beyond that depth to the continental margin.

 The United States proclaimed control of OCS seabed resources in 1945. Other nations quickly followed suit. This control of submerged resources of the OCS was exercised in such a way as not to change or interfere with international surface or air space navigation rights. The U.S. and coastal states following the U.S. lead did not claim an extension of the territorial sea or sovereignty over the waters of the OCS.

 The evolving law of the OCS was first codified in the 1958 Geneva Convention on the Continental Shelf. This convention firmly establishes the principle that the exercise of jurisdiction over the resources of the OCS does not alter the legal status of area waters as high seas. This convention also establishes the right of coastal states to erect surface installations to exploit subsea resources and to establish safety zones up to a distance of 500 meters around such installations and provide  a permanent means for warning of their presence. Installations may not be established in recognized sea lanes.


 The view of the United Nations is that the deep seabeds are "the common heritage of mankind". Thus this subsea realm beyond the Continental shelves is squarely in the international commons. Unfortunately, at this writing, the precise boundary between the continental shelves and the deep seabeds is not yet legally defined. Nonetheless, the international community has agreed to certain points about the region and codified these into international conventions and U.N. resolutions. The Chief Points of agreement are:

1. The deep seabeds are part of the "commons". All nations have rights to the resources of the deep seabeds including non-coastal states.

2. No weapons of mass destruction may be placed on the seafloor beyond the 12 miles from a coastal state's shoreline.

3. The deep seabeds are not subject to appropriation by any means by states or persons, natural or juridical nor may any sovereign rights be exercised over any part of the deep seabeds.

4. No state or person, natural or juridical, may claim, exercise or acquire rights with respect to the deep sea beds or its resources that are incompatible with an international regime to be established by the United Nations and the principles of the U.N resolution on the seabeds of December 1970.

5. All activities regarding the exploration and the exploitation of the resources of the deep seabed and other related activities shall be governed by the international regime to be established by the U.N.

6. The deep sea beds shall be open to use exclusively for peaceful purposes by all states, including non coastal states in accordance with the international regime to be established by the U.N.

7. all states shall conduct such activities as are now feasible in the deep seabeds in full accordance with the principals of the UN resolution of December 1070 and applicable rules of international law.

8. The exploration and exploitation of the deep seabeds shall be carried out for the benefit of mankind as a whole, including the non-coastal states, giving particular consideration to the interests and needs of the developing countries.

9. On the basis of the principles of the UN declaration of December 1970, an international regime shall be created applying to the deep seabed and its resources. This regime is to be established by international treaty of a "universal character generally agreed upon".  The regime when established will will be charged with providing for the "safe development" and "rational management" of the deep seabeds and their resources and "for expanding 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".

10. The UN resolution of December 1970 requires states to "promote international co-operation in scientific research exclusively for peaceful purposes."  However, "no such activity shall form the legal basis for any claims with respect to any part of the area (deep seabeds) or its resources."

11. The UN resolution of December 1970 requires states to take appropriate measures for and cooperate in the adoption and implementation of international rules, standards, and procedures for the prevention of pollution and environmental damage to the deep seabeds or adjacent coastal areas, and for the protection and conservation of the natural resources, flora, and fauna of the marine environment.

12. The UN resolution of December 1970 requires states engaged in deep seabed activities to "pay due regard to the rights and legitimate interests of coastal states in the region of such activities, as well as of all other states, which may be effected by such activities. Consultations shall be maintained with the coastal states concerned with respect to activities relating to the exploration of the area and the exploitation of its resources with a view to avoiding infringement of such rights and interests.

13. The UN resolution of December 1970 states that nothing in the resolution shall affect:
      " (a) The legal status of waters superjacent to the area or that of the air space above these waters:
         (b) The rights of coastal states with respect to measures to prevent, mitigate or eliminate grave and imminent danger to their coastline or related interests from pollution or threat thereof resulting from, or from other hazardous occurrences caused by any activities in the area, subject to the international regime to be established."

14. This resolution requires states undertaking activities on the deep seabeds to take responsibility to ensure "that activities in the area, including those relating to its resources whether undertaken by governmental agencies, or non-governmental entities or persons under its jurisdiction or acting on its behalf, shall be carried out in conformity with the international regime to be established". The same responsibility applies to international organizations and their members for activities undertaken by such organizations or on their behalf. Damage caused by such activities shall entail liability.

15. Finally, the UN resolution on the deep seabeds requires that disputes over activities on the deep seabeds be resolved by measures outlined in Article 33 of the UN charter and "such procedures for settling disputes as may be agreed upon in the international regime established."

 So then, while a complete regime of international law for the deep seabeds has not been developed at this writing (October 2013) enduring principles of deep seabed law are emerging. The already identifiable principles of deep seabed law are emerging. The already identifiable principles of deep seabed law inform potential deep sea mining interest that caution is in order before capitalizing major projects. Clearly, international royalty and licensing arrangements lie in the future. Projects started before these arrangements are in place could be penalized. Naval weapons planners may assume that the deep seabeds are not eligible sites for weapons installments.


 Freedom of scientific research on the high seas is a freedom of custom and tradition. At this writing , freedom of scientific research is not addressed by an effective international convention. This right has been strained in the second half of the twentieth century. Some coastal states have discouraged scientific research by non-nationals by a variety of methods within disputed areas in the territorial seas and the OCS. The driving motive for these actions appears to be concerns of the coastal states over development of ocean resources in areas adjacent to their clear jurisdictions while an international regime for the regulation of such development remains indistinct. United States policy has been to work towards codification and assurance of the right to perform scientific research.


  All signatory nations were required to draft regulations to prevent pollution of the seas by discharge of oil from ships and pipelines by Articles 24 and 25 of the 1958 Geneva High Seas Convention. One response of the U.S. to the problem and the convention mandate was the Water Quality Control act of 1970. More recently, in response to the EXXON VALDEZ accident, the U.S. has passed the Oil Pollution Act of 1990, referred to in maritime trade journals as "OPA 90".

 Of these two significant anti -pollution acts OPA 90 has the most profound effect on international law. OPA 90 establishes a 60 mile pollution enforcement zone off the U.S. coast and requires U.S. Coast Guard enforcement of certain anti-pollution requirements even on foreign ships engaged in innocent passage. This particular provision of OPA 90 appears to be in conflict with past U.S. policy positions on the law of the sea. The U.S. has objected to and refused to sign international conventions that clearly gave coastal states control over pollution by ships not flying their national flag in adjacent international waters.  Since 1958, international debate on the issue of how best to control ocean pollution has not settled the issue of whether ocean pollution control beyond the territorial seas should be enforced by an international agency or by granting special authority to adjacent coastal states. The absence of a formal agreement has led to unilateral action by numerous coastal states over U.S. objections.

 The United States , by enforcing OPA 90, now joins the group of states who claim special anti pollution authority on parts of the high seas. The net result will prove interesting both for the U.S. Coast Guard and U.S. Navy afloat commanders. U.S. Coast Guard forces attempting to enforce OPA 90 in the 60 mile pollution enforcement zone may encounter resistance by ships of states not recognizing such controls. such states will be able to argue that the law itself is inconsistent with past U.S. policy on the issue.

 Naval Commanders conducting exercises such as underway replenishment within someone's pollution control zone may find themselves facing coastal state enforcement vessels claiming a right to inspect. These vessels may also attempt to order the U.S. Naval vessels out of the zone so long as transfer of fuels or lubricants is in progress. Naval commanders refusal to cease the activity and leave the area based on freedom of the seas arguments will ring hollow in the face of OPA 90. Many coastal states claim pollution enforcement zones in excess of 60 miles. For example Canada has claimed a 100 mile Pollution Enforcement Zone since 1970.
 Now in fact few of these potential negative effects have happened after nearly two decades of OPA 90 enforcement and over 40 years of Canadian enforcement of a 100 mile pollution control zone. We believe that the lack of incidents and objections stems from enforcement policies and naval operational policies. Plain and simply the U.S. and Canada seem to limit enforcement t0 cases of probable cause such as ships in the zone with obvious overboard discharges. Few if any ships truly on "innocent passage" have been delayed by pollution enforcement actions. U.S. Navy ships engaged in replenishment at sea operations have generally either confined these activities ti places outside national declared pollution control zones or have been exercising with the actual forces of the adjacent coastal state.  The issues are still there and still unresolved but the conflicting incidents are few and far between.

 Given the failure to establish an effective international ocean pollution control system, the trend in customary international law appears to be toward greater acceptance of pollution control by adjacent coastal states. This development has the potential to dramatically affect where and how underway replenishment operations can take place and even the construction standards for certain naval auxiliaries such as fleet oilers.

 The enduring principles of maritime international law relative to pollution control at this writing appear to be:

        1. Agreement that pollution on the high seas must be controlled.

        2. A growing tolerance for control by special adjacent coastal state authority.

        3. The problems created by adjacent coastal state control relative to other freedom of the seas issues will fuel a drive towards formal codification of these controls.

To be continued: Next other high seas issues.
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