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Legislative Requirements
Law of the Sea - III
HIGH
SEAS
Applicable to all parts of the sea that are not
included in the exclusive economic zone, in the territorial sea or in the
internal waters of a State, or in the archipelagic waters of an archipelagic
State. This does not entail in any reduction of the freedoms enjoyed by all
States in the exclusive economic zone.
Freedom
of the high seas
1. 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 and by other rules of international law. It comprises,
both for coastal and land-locked States:
(a) freedom of navigation;
(b) freedom of over flight;
(c) freedom to lay submarine cables and pipelines,
(d) freedom to construct artificial islands and
other installations permitted under international law,
(e) freedom of fishing,
(f) freedom of scientific research,
2. These freedoms shall be exercised by all States
with due regard for the interests of other States in their exercise of the
freedom of the high seas, and also with due regard for the rights under this
Convention with respect to activities in the Area.
The high seas shall be reserved
for peaceful purposes.
No State may validly purport to
subject any part of the high seas to its sovereignty.
Every State, whether coastal or
land-locked, has the right to sail ships flying its flag on the high seas.
Nationality
of ships
1. Every State shall fix the conditions for the
grant of its nationality to ships, for the registration of ships in its
territory, and for the right to ny its flag. Ships have the nationality of the
State whose flag they are entitled to fly. There must exist a genuine link
between the State and the ship.
2. Every State shall issue to ships to which it has
granted the right to fly its flag, documents to that effect.
Status
of ships
1. Ships shall sail under the flag of one State only
and, save in exceptional cases expressly provided for in international treaties
or in this Convention, shall be subject to its exclusive jurisdiction on the
high seas. A ship may not change its flag during a voyage or while in a port of
call, save in the case of a real transfer of ownership or change of registry.
2. A ship which sails under the flags of two or more
States, using them according to convenience, may not claim any of the
nationalities in question with respect to any other State, and may be
assimilated to a ship without nationality.
Duties
of the flag State
1. Every State shall effectively exercise its jurisdiction
and control in administrative, technical and social matters over ships flying
its flag.
2. In particular every State shall:
(a) maintain a register of ships containing the
names and particulars of ships flying its flag, except those which are excluded
from generally accepted international regulations on account of their small
size;
and (b) assume jurisdiction under its internal law
over each ship flying its nag and its master, officers and crew in respect of
administrative, technical and social matters concerning the ship.
3. Every State shall take such measures for ships
flying its flag as are necessary to ensure safety at sea with regard, to:
(a) the construction, equipment and seaworthiness of
ships;
(b) the manning of ships, labour conditions and the
training of crews, taking into account the applicable international
instruments;
(c) the use of signals, the maintenance of
communications and the prevention of collisions.
4. Such measures shall include those necessary to
ensure:
(a) that each ship, before registration and
thereafter at appropriate intervals, is surveyed by a qualified surveyor of
ships, and has on board such charts, nautical publications and navigational
equipment and instruments as are appropriate for the safe navigation of the
ship;
(b) that each ship is in the charge of a master and
officers who possess appropriate qualifications, in particular in seamanship,
navigation, communications and marine engineering, and that the crew is
appropriate in qualification and numbers for the type, size, machinery and
equipment of the ship;
(c) that the master, officers and, to the extent
appropriate, the crew are fully conversant with and required to observe the
applicable international regulations concerning the safety of life at sea, the
prevention of collisions, the prevention, reduction and control of marine
pollution, and the maintenance of communications by radio.
5. In taking the measures called for in paragraphs 3
and 4 each State is required to conform to generally accepted international
regulations, procedures and practices and to take any steps which may be
necessary to secure their observance.
6. A State which has clear grounds to believe that
proper jurisdiction and control with respect to a ship have not been exercised
may report the facts to the flag State. Upon receiving such a report, the flag
State shall investigate the matter and, if appropriate, take any action
necessary to remedy the situation.
7. Each State shall cause an inquiry to be held by
or before a suitably qualified person or persons into every marine casualty or
incident of navigation on the high seas involving a ship flying its flag and
causing loss of life or serious injury to nationals of another State or serious
damage to ships or installations of another State or to the marine environment.
The flag State and the other State shall co-operate in the conduct of any
inquiry held by that other State into any such marine casualty or incident of
navigation.
Penal jurisdiction in matters of collision
or any other incident of navigation
1. In the event of a collision or any other incident
of navigation concerning a ship on the high seas, involving the penal or
disciplinary responsibility of the master or of any other person in the service
of the ship, no penal or disciplinary proceedings may be instituted against
such person except before the judicial or administrative authorities either of
the flag State or of the State of which such person is a national.
2. In disciplinary matters, the State which has issued
a master’s certificate or a certificate of competence or licence shall alone be
competent, after due legal process, to pronounce the withdrawal of such
certificates, even if the holder is not a national of the State which issued
them.
3. No arrest or detention of the ship, even as a
measure of investigation, shall be ordered by any authorities other than those
of the flag State.
Duty
to render assistance
1. Every State shall require the master of a ship
flying its flag, in so far 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, in so far as
such action may reasonably be expected of him;
(c) after a collision, to render assistance to the
other ship, its crew and its passengers and, where possible, to inform the
other ship of the name of his own ship, its port of registry and the nearest
port at which it will call.
2. Every coastal State shall promote the
establishment, operation 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 co-operate
with neighbouring States for this purpose.
Unauthorized
broadcasting from the high seas
1. All States shall co-operate in the suppression of
unauthorized broadcasting from the high seas.
2. For the purposes of this Convention,
“unauthorized broadcasting” means the transmission of sound radio or television
broadcasts from a ship or installation on the high seas intended for reception
by the general public contrary to international regulations, but excluding the transmission
of distress calls.
3. Any person engaged in unauthorized broadcasting
may be prosecuted before the court of:
(a) the flag State of the ship;
(b) the State of registry of the installation;
(c) the State of which the person is a national;
(d) any State where the transmissions can be
received; or (e) any State where authorized radio communication is suffering
interference.
4. On the high seas, a State may, arrest any person
or ship engaged in unauthorized broadcasting and seize the broadcasting
apparatus.
Breaking
or injury of a submarine cable or pipeline
Every State shall adopt the laws and regulations
necessary to provide that the breaking or injury by a ship flying its flag or
by a person subject to its jurisdiction of a submarine cable beneath the high
seas done wilfully or through culpable negligence, in such a manner as to be
liable to interrupt or obstruct telegraphic or telephonic communications, and
similarly the breaking or injury of a submarine pipeline or high-voltage power
cable, shall be a punishable offence. This provision shall apply also to
conduct calculated or likely to result in such breaking or injury.
However, it shall not apply to any break or injury
caused by persons who acted merely with the legitimate object of saving their
lives or their ships, after having taken all necessary precautions to avoid
such break or injury.
Breaking
or injury by owners of a submarine cable or pipeline of another submarine cable
or pipeline
Every State shall adopt the laws and regulations
necessary to provide that, if persons subject to its jurisdiction who are the
owners of a submarine cable or pipeline beneath the high seas, in laying or
repairing that cable or pipeline, cause a break in or injury to another cable
or pipeline, they shall bear the cost of the repairs.
Indemnity
for loss incurred in avoiding injury to a submarine cable or pipeline
Every State shall adopt the laws and regulations
necessary to ensure that the owners of ships who can prove that they have
sacrificed an anchor, a net or any other fishing gear, in order to avoid
injuring a submarine cable or pipeline, shall be indemnified by the owner of
the cable or pipeline, provided that the owner of the ship has taken all
reasonable precautionary measures beforehand.
Protection and Preservation of the Marine Environment
Coastal States, for the purpose of
enforcement, may in respect of their exclusive economic zones adopt laws and
regulations for the prevention, reduction and control of pollution from vessels
conforming to and giving effect to generally accepted international rules and
standards established through the competent international organization or
general diplomatic conference.
Where the international rules and
standards are inadequate to meet special circumstances and coastal States have
reasonable grounds for believing that a particular, clearly defined area of
their respective exclusive economic zones is an area where the adoption of
special mandatory measures for the prevention of pollution from vessels is required
for recognized technical reasons in relation to its oceanographical and
ecological conditions, as well as its utilization or the protection of its
resources and the particular character of its traffic, the coastal States,
after appropriate consultations through the competent international
organization with any other States concerned, may, for that area, adopt laws
and regulations for the prevention, reduction and control of pollution from
vessels implementing such international rules and standards or navigational
practices as are made applicable, for special areas.
Such additional laws and regulations may
relate to discharges or navigational practices but shall not require foreign
vessels to observe design, construction, manning or equipment standards other
than generally accepted international rules and standards;
Enforcement
by flag States
States shall ensure compliance by vessels
flying their flag or of their registry with applicable international rules and
standards, for the prevention, reduction and control of pollution of the marine
environment from vessels and shall accordingly adopt laws and regulations and
take other measures necessary for their implementation. Flag States shall
provide for the effective enforcement of such rules, standards, laws and
regulations, irrespective of where a violation occurs.
States shall, in particular, take
appropriate measures in order to ensure that vessels flying their flag or of
their registry are prohibited from sailing, until they can proceed to sea in
compliance with the requirements of the international rules and standards,
including requirements in respect of design, construction, equipment and
manning of vessels.
States shall ensure that vessels flying
their flag or of their registry carry on board certificates required by and
issued pursuant to international rules and standards. States shall ensure that
vessels flying their flag are periodically inspected in order to verify that
such certificates are in conformity with the actual condition of the vessels.
These certificates shall be accepted by other States as evidence of the
condition of the vessels and shall be regarded as having the same force as
certificates issued by them, unless there are clear grounds for believing that
the condition of the vessel does not correspond substantially with the
particulars of the certificates.
If a vessel commits a violation of rules
and standards the flag State, shall provide for immediate investigation and
where appropriate institute proceedings in respect of the alleged violation
irrespective of where the violation occurred or where the pollution caused by
such violation has occurred or has been spotted.
Flag States conducting an investigation of
the violation may request the assistance of any other State whose co-operation
could be useful in clarifying the circumstances of the case.
States shall, at the written request of
any State, investigate any violation alleged to have been committed by vessels
flying their flag.
Flag States shall promptly inform the
requesting State and the competent international organization of the action
taken and its outcome.
Penalties provided for by the laws and
regulations of States for vessels flying their flag shall be adequate in
severity to discourage violations wherever they occur.
Enforcement
by port States
When a vessel is voluntarily within a port
or at an off-shore terminal of a State, that State may undertake
investigations and, where the evidence so warrants, institute proceedings in
respect of any discharge from that vessel outside the internal waters,
territorial sea or exclusive economic zone of that State in violation of
applicable international rules and regulations.
No proceedings shall be instituted in
respect of a discharge violation in the internal waters, territorial sea or
exclusive economic zone of another State unless requested by that State, the
flag State, or a State damaged or threatened by the discharge violation, or
unless the violation has caused or is likely to cause pollution in the internal
waters, territorial sea or exclusive economic zone of the State conducting the
investigations.
When a vessel is voluntarily within a port
or at an off-shore terminal of a State, that State shall, as far as
practicable, comply with requests from any State for investigation of a
discharge violation, believed to have occurred in, caused, or threatened damage
to the internal waters, territorial sea or exclusive economic zone of the
requesting State. It shall likewise, as far as practicable comply with requests
from the flag State for investigation of such a violation, irrespective of
where the violation occurred.
The records of the investigation carried
out by a port State pursuant to this article shall be transmitted upon request
to the flag State or to the coastal State. Any proceedings instituted by the
port State on the basis of such an investigation may, be suspended at the
request of the coastal State when the violation has occurred within its
internal waters, territorial sea or exclusive economic zone. The evidence and
records of the case, together with any bond or other financial security posted
with the authorities of the port State, shall in that event be transmitted to
the coastal State. Such transmittal shall preclude the continuation of
proceedings in the port State
Measures
relating to seaworthiness of vessels to avoid pollution
States which, upon request or on their own
initiative, have ascertained that a vessel within one of their ports or at one
of their off-shore terminals is in violation of applicable international rules
and standards relating to seaworthiness of vessels and thereby threatens damage
to the marine environment shall, as far as practicable, take administrative
measures to prevent the vessel from sailing. Such States may permit the vessel to
proceed only to the nearest appropriate repair yard and, upon removal of the
causes of the violation, shall permit the vessel to continue immediately.
Enforcement
by coastal States
When a vessel is voluntarily within a port
or at an off-shore terminal of a State, that State may, institute proceedings
in respect of any violation of its laws and regulations adopted in accordance
with this Convention or applicable international rules and standards for the
prevention, reduction and control of pollution from vessels when the violation
has occurred within the territorial sea or the exclusive economic zone of that
State.
Where there are clear grounds for
believing that a vessel navigating in the territorial sea of a State has,
during its passage therein, violated laws and regulations of that State adopted
in accordance with this Convention or applicable international rules and
standards for the prevention, reduction and control of pollution from vessels,
that State, may undertake physical inspection of the vessel relating to the
violation and may, where the evidence so warrants, institute proceedings,
including detention of the vessel, in accordance with its laws.
Where there are clear grounds for
believing that a vessel navigating in the exclusive economic zone or the
territorial sea of a State has, in the exclusive economic zone, committed a
violation of applicable international rules and standards for the prevention,
reduction and control of pollution from vessels or laws and regulations of that
State conforming and giving effect to such rules and standards, that State may
require the vessel to give information regarding its identity and port of
registry, its last and its next port of call and other relevant information
required to establish whether a violation has occurred.
States shall adopt laws and regulations
and take other measures so that vessels flying their flag comply with requests
for information.
Where there are clear grounds for
believing that a vessel navigating in the exclusive economic zone or the
territorial sea of a State has, committed a violation resulting in a
substantial discharge causing or threatening significant pollution of the
marine environment, that State may undertake physical inspection of the vessel
for matters relating to the violation if the vessel has refused to give
information or if the information supplied by the vessel is manifestly at
variance with the evident factual situation and if the circumstances of the
case justify such inspection.
Where there is clear objective evidence
that a vessel navigating in the exclusive economic zone or the territorial sea
of a State has, committed a violation resulting in a discharge causing major
damage or threat of major damage to the coastline or related interests of the
coastal State, or to any resources of its territorial sea or exclusive economic
zone, that State may, institute proceedings, including detention of the vessel,
in accordance with its laws.
Whenever appropriate procedures have been
established, whereby compliance with requirements for bonding or other
appropriate financial security has been assured, the coastal State if bound by
such procedures shall allow the vessel to proceed.
Measures
to avoid pollution arising from maritime casualties
It is the right of States, pursuant to
international law, both customary and conventional, to take and enforce
measures beyond the territorial sea proportionate to the actual or threatened
damage to protect their coastline or related interests, including fishing, from
pollution or threat of pollution following upon a maritime casualty or acts
relating to such a casualty, which may reasonably be expected to result in
major harmful consequences.
“maritime
casualty” means a collision of vessels, stranding or other
incident of navigation, or other occurrence on board a vessel or external to it
resulting in material damage or imminent threat of material damage to a vessel
or cargo
UNCLOS shall prevail, as between States
Parties, over the Geneva Conventions on the Law of the Sea of
This shall not alter the rights and
obligations of States Parties which arise from other agreements compatible with
this Convention and which do not affect the enjoyment by other States Parties
of their rights or the performance of their obligations under this Convention.
Two or more States Parties may conclude
agreements modifying or suspending the operation of provisions of this
Convention, applicable solely to the relations between them, provided
that such agreements do not relate to a provision derogation from which
is incompatible with the effective execution of the object and purpose of
this Convention, and provided further that such agreements shall not
affect the application of the basic principles embodied herein, and that
the provisions of such agreements do not affect the enjoyment by
other States Parties of their rights or the performance of their
obligations under this Convention.
This article does not affect international
agreements expressly permitted or preserved by other articles of this
Convention.