Freedom of the Seas in the 20th Century
Introduction to Freedom of the Seas in the 20th Century
During World War I, the use of submarines and aircraft demonstrated the inadequacy of international law with respect to freedom of the seas. Virtually all laws and treaties relating to the subject were disregarded as Britain strove to blockade the European continent and Germany attempted to isolate the British from the rest of the world. Interference by Germany in American trade with Britain was one of the causes of the entry of the United States into the war in 1917.
During World War II, the rights of neutrals were largely disregarded by the belligerent powers because of the desperate urgency of both sides to utilize every means of achieving victory and because of the global character of the war. The Charter of the United Nations (1945) included a provision empowering the Security Council to institute partial or total interruptions of sea communications, including blockades, when necessary to maintain or restore international peace or security (article 42).
The United Nations Conference on the Law of the Sea, convened in Geneva in 1958, defined rights of navigation and fishing on the high seas in time of peace. It approved articles defining the continental shelf and innocent passage of foreign ships through territorial waters and straits. Innocent passage was defined as maritime transit that “is not prejudicial to the peace, good order, or security of the coastal State.” Despite protracted discussion over the question of 3 mi, 6 mi, or 12 mi territorial water limits, differences remained unresolved even during the subsequent second Conference on the Law of the Sea in 1960.
The continuing disagreement over the width of territorial waters posed new threats to the freedom of the seas. In 1952 Ecuador, Chile, and Peru extended their claims to 200 nautical mi (370.4 km) and seized many foreign ships engaged in fishing without their permission. Several other nations also began to extend their offshore zones well beyond 12 nautical mi to exercise control over their fish stocks, commercial catches, and natural resources. The increasing number and intensity of international disputes resulting from such unilateral actions, as well as other maritime problems such as rights to exploit newly discovered minerals in the deeper seabed, caused the UN to begin the third Law of the Sea Conference in 1973. In 1977, with the conference still in session, the U.S. extended its fishing zone to 200 nautical mi, limiting fishing within that area to nations that gave reciprocal rights to U.S. fleets. Following this action, many nations established similar 200-mi zones, reaching fishing agreements with other countries by direct negotiation. Ordinary navigation was not restricted in these fishing zones.
A treaty adopted at the 1982 session of the Law of the Sea Conference approved a 12-nautical-mi territorial limit for coastal nations and a 200-nautical-mi “exclusive economic zone,” which includes control over fishing rights, marine environmental protection, and scientific research in that zone. The 1982 convention, in force since 1994, covers the full range of ocean law subjects, including rights on the high seas and rules governing seabed minerals development beyond national jurisdiction. Along with other nations, the United States has endorsed most of these provisions. The United States has not signed this treaty, however, because of its objections to the rules on minerals development in the international seabed. See also Maritime Law.” (1)
Freedom of the Seas and International Maritime Labor Law
The Principle of Freedom of the Seas, a Ship’s Nationality and the Law Governing Labour and Employment Matters on Board
The principle of freedom of the seas is more than just a metaphor to describe the fact that the seas are theoretically an open space without a set of established rules, which are now under the umbrella of various international conventions. The earliest attempts to tame the seas include state appropriation of vessels registered in or otherwise connected with their own territory, meaning that a vessel had taken on the state’s nationality and the obligation to fly its flag. In fact, the introduction of this international obligation runs parallel to the consolidation of the principle of freedom of the seas and oceans in public international law, as this goes hand in hand with international rules that guarantee free circulation and the maintaining of public order at sea—whether it involves decisions about certain events, such as births, deaths or crimes; regulating matters pertaining to the ship itself; or determining behaviour and responsibilities arising from the very fact of being at sea, particularly vis-à-vis third parties. The flag state, therefore, has certain rights over ‘its’ vessels in relation to other states—both on the high seas and in its territorial or inland waters—but it also has certain duties, and it is the combination of these rights and duties that make up the concept of nationality.
According to Article 91(1) of the United Nations Convention on the Law of the Sea (UNCLOS) issued at Montego Bay on 10 December 1982, ‘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 fly 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’. Articles 94 and 217 of UNCLOS describe in detail the different duties that fall within the sphere of state control with respect to ships flying its flag. Prior to this Convention, Articles 5 and 16 of the Geneva Convention on the High Seas of 29 April 1958 already conferred jurisdiction over matters on board to the flag state.
The nature of the relationship between a state and a vessel over which it has jurisdiction has been widely discussed since the ship is just a movable asset. The initial approach was that the vessel was subject to national sovereignty because it was part of the territory of the state to which it belonged. This fiction soon became inconsistent in the face of the principle of freedom of the seas, which establishes that it is not necessary to obtain permission to fly over a ship or sail under it, for example, whereas such permission is necessary when dealing with state territory. The subsequent approach to justifying flag jurisdiction mirrored the relationship between a state and its nationals, highlighting the idea that the same bond is applicable to the relationship between a state and a vessel flying its flag. However, citizens and ships have different rights and duties as holders of a nationality, and so this explanation of flag jurisdiction also became useless and further arguments were put forward to support national sovereignty on vessels.
The first of these took into account a shipowner’s nationality and looked at its correlation with the nationality of the vessel itself. This correlation is rare nowadays, given that the success of open registries specifically relies on the relaxing of the requirement for shipowners to be nationals of the states their vessel are registered with; therefore, state sovereignty over shipowners cannot be extended to their ships.8 The second argument departed from the English practice of conferring the status of a legal person on a ship.9 However, this treatment was only granted for the purpose of taking legal action against the ship, i.e., placing the vessel in the position of a defendant, or rather deeming it an object that might be subject to attachment, so the fiction was only useful to sustain admiralty jurisdiction in rem.
All in all, the conclusion to be drawn is that a ship’s nationality is a sui generis construction.10 While the inappropriateness of the term nationality to describe the link between flag state and ship has already been remarked on, it is also acknowledged that the term has played the key role of supporting the connection between a ship and a particular state.11 In any event, this bond between a state and a vessel flying its flag—supported by international conventions as well as international customary law—remains as a counterbalance to the principle of freedom of the seas.
The fact that jurisdiction over a ship is ‘allocated’ to a specific state justifies the application of the state’s own national laws to the vessel, as well as the fact that jurisdiction over matters related to it be granted to the master and officers of the vessel as legitimate representatives of the power on board.13 Prior to the proliferation of open registries, such power could only be exercised by flag state nationals, which is to say that the captain and the officers had to be holders of the nationality in question.14 In fact, this rule is only meaningful in the framework of the current structure of international labour markets, whereas in a less globalised world crew members typically shared their vessel’s nationality, which in turn was also the shipowner’s nationality as a rule.
This situation is only currently maintained in closed registries, which still require strong connections between vessel and flag state, sometimes including the requirement for the ship to be built on the flag state’s own shores.
In contrast, a ship without a flag is a pirate ship and is not subject to any law or jurisdiction. By the same token, any vessel can only fly one flag,16 and the respective state takes responsibility for its actions. Against this background, flag states’ interest in knowing which ships are flying their flags—for which registration is generally mandatory—becomes obvious. For similar reasons, flag states also have an interest in specifying seafarers’ and fishermen’s training and professional qualifications and overseeing crew members’ employment contracts. In addition to determining working and living conditions on board a ship, the flag state intervenes very early on in sailors’ training activities for military purposes. This practice shows that it is the law of the flag that holds sway on board, including in aspects such as living and working conditions,17 except for in specific events with implications going beyond the ship itself, occurring in waters subject to the jurisdiction of a coastal state or involving more than one ship.
The fact that a ship is subject to the jurisdiction of the flag state determines not only which law governs on board but also the need to accept international responsibilities regarding the ship, meaning that it has to comply with both international and national laws as passed by the state in question, while the vessel benefits from the state’s protection, including on issues such as repatriation of the crew irrespective of their nationality.19
The principle of freedom of the seas is not an absolute but a relative principle: states have specific rights and duties in relation to specific areas. According to Article 2 of UNCLOS, coastal state territory includes territorial waters within what is known as the contiguous zone. State sovereignty here is limited, however, since it can only be exercised in accordance with public international law provisions, which impose the right of innocent passage, for example.
In this regard, the coastal state is not allowed to use the fact that a ship is sailing through its territorial waters to exercise civil jurisdiction over the people on board and the ship itself by adopting precautionary or arrest measures, ‘save only in respect of obligations or liabilities assumed or incurred by the ship itself in the course or for the purpose of its voyage through the waters of the coastal State’.
Public international law allocates other areas beyond the coastline to coastal states: the exclusive economic zone and the continental shelf. In both areas, sovereignty is much more limited than in the territorial sea. Within the exclusive economic zone, jurisdiction is limited to the construction and use of artificial islands and other facilities and structures, marine scientific research, the protection and preservation of the marine environment and other rights and duties provided for in Article 56 of UNCLOS. State sovereignty over the continental shelf is used only for the purposes of exploring and exploiting natural resources in accordance with Article 77 of UNCLOS. Coastal states’ jurisdiction specifically covers offshore oil rigs as well as other facilities for the exploiting of mineral resources. The exploiting of fish stocks is more complex due to sustainability issues and is subject to fishing quotas. With regard to the ship’s internal affairs, however, the flag jurisdiction is applicable in accordance with Article 94 of UNCLOS.
Source: Piñeiro L.C. (2015) International Maritime Labour Law. Hamburg Studies on Maritime Affairs (International Max Planck Research School for Maritime Affairs at the University of Hamburg), vol 34. Springer, Berlin, Heidelberg
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