Anthony Aust. Handbook of International Law

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43. See pp. 312 et seq above.

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Most states have a register of ships entitled to fly their flag. A ship has the nationality of the state

whose flag it is entitled to fly. There must be a ‘genuine link’ between the ship and the state (Article

91). Unfortunately, such a link is often tenuous (flag of convenience), and thus the amount of actual

control that the state exercises may be slight. A ship must not sail under more than one flag, or

change its flag during a voyage or while in a port of call, unless it is the result of a real transfer of

ownership or registry. A ship that sails under more than one flag is assimilated to a ship without

nationality (Article 92). If there are reasonable grounds for suspecting that a ship on the high seas

has no nationality, it may be boarded by any warship (Article 110(1)(d)). If the ship is found to be

carrying narcotic drugs destined for the state of the warship, it can probably be arrested and persons

on board prosecuted in that state. If a ship is flying a foreign flag, or refusing to show its flag, and

there are reasonable grounds for suspecting that it is of the same nationality as the warship, the

warship may board it (Article 110(1)(e)). If it is found to be wrongly flying the same flag as the

warship, it may be seized and taken to a port of the flag state for prosecution.

Warships and ships used only on government non-commercial service

The following paragraphs deal only with the law applicable in peacetime Under Article 29, a

warship is:

a ship belonging to the armed forces of a state bearing the external marks distinguishing such ships of its

nationality, under command of an officer duly commissioned by the government of the state and whose

name appears in the appropriate service list or its equivalent, and manned by a crew which is under

regular armed forces discipline.

The ship does not have to be owned by the flag state (note ‘belonging’), provided it fulfils all the

criteria; ships chartered for the purpose of transporting troops and under naval command are

warships.

In peacetime, a warship may carry out various civil duties in support of the government of the flag

state, including enforcing fisheries and anti-pollution laws. On the high seas, a warship is

comparable to a floating piece of territory of the flag state, since it has complete immunity from the

jurisdiction of any other state (Article 95).

This applies also in a

44. State immunity in other cases is not usually absolute: see p. 159 above. State immunity should not be

confused with diplomatic immunity, or ‘diplomatic’ clearance (see p. 318 below).

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foreign EEZ, although whether a warship may test weapons or conduct manoeuvres there is

disputed.

Where there is a right of transit passage through international straits,

this is enjoyed

by all ships, and thus includes warships. In such straits, submarines do not have to navigate on the

surface. But, when in the territorial sea of another state, submarines and other underwater vehicles

must navigate on the surface and show their flag (Article 20). Whether a warship enjoys the right of

innocent passage through the territorial sea is not agreed. Although Russia, the United Kingdom, the

United States and other significant naval powers assert that warships do have that right, some forty

states require prior authorisation. In such cases, this is generally sought and normally granted. If a

warship does not comply with the laws and regulations of the coastal state concerning passage, it can

be required to leave the territorial sea immediately (Article 30). If it does not do so, the coastal state

can use reasonable force to remove it.

Since a state can refuse entry to its ports to a foreign warship, clearance must be sought by the

flag state. This is known as ‘diplomatic’ clearance since it is done through the diplomatic channel.

But, once in the port or other internal waters of the foreign state, the warship continues to enjoy

complete immunity from the jurisdiction of that state. The vessel remains under the exclusive

control of its commander; it may not be entered or persons or property removed from it without his

permission. No criminal or civil proceedings may be taken against the vessel or persons on board.

Subject to any contrary provisions of an applicable visiting forces agreement,

members of the crew

who are on shore on official business are under the exclusive jurisdiction of the flag state, although

they can be forcibly removed to the ship by the local authorities. If ashore on personal business, they

can be arrested, prosecuted or sued like anyone else.

As with warships, foreign governmental ships operated for non-commercial purposes enjoy state

immunity, but determining whether the purpose is non-commercial may not be easy to do. As with

any question of state immunity, the position will depend to a large extent on the precise

circumstances and the law of the state where the question has arisen.

45. See Churchill and Lowe, pp. 426–7.

46. See p. 306 above. Other straits are governed either by the rules applicable to the territorial sea or by

special treaty regimes.

47. Cf. p. 300 above.

48. See p. 174 above.

49. See generally Oppenheim, pp. 1167–70.

50. See pp. 171-2 above.

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Land-locked and geographically disadvantaged states

A state with no sea coast is land-locked. There are forty-two such states, varying from the small but

rich (Switzerland), to the large but poor (Ethiopia). But both have fleets of merchant ships, which

enjoy the same rights in the territorial waters, contiguous zones and EEZs of other states, and

freedom of navigation on the high seas as all other states. Land-locked states may also exercise the

freedom to fish, conduct scientific research, overfly outside territorial waters, and lay cables and

pipelines, but not construct artificial islands or other offshore installations (Article 87). Land-locked

states do have freedom of transit through states that lie between them and the sea for the passage of

persons, goods and means of transport, subject to agreements with the transit states (Article 125).

Special, complex and somewhat limited provisions are made for land-locked states, and

geographically disadvantaged states, to have access to marine resources.

Fishing

Fishing is a large and vitally important industry. The rules governing it vary depending on whether

the fishing takes place in internal waters or the territorial sea, in an EEZ or an exclusive fishing zone

(EFZ), or on the high seas.

In internal waters and the territorial sea

Since both the internal waters and the territorial sea of a state are part of its territory, fishing vessels

of other states have no right to fish there without the agreement of the coastal state. Such agreements

are rare, the most celebrated being the Common Fisheries Policy of the European Community.

Under this scheme, fishing vessels registered in one member state have, subject to the detailed rules

laid down by the Community, the right to fish in the territorial seas of the other member states. This

right does not extend to the overseas territories of member states.

In EEZs (and EFZs)

Although within its EEZ a coastal state has sovereign rights over the fish stocks, it has an

international duty to conserve those stocks. The coastal

51. Churchill and Lowe, pp. 435–40.

52. If a state does not wish to declare an EEZ as such, it may establish an exclusive fishing zone (EFZ) for

the regulation of fishing up to 200 nautical miles from its coast, as the UK has done.

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state will therefore determine, usually on a seasonal or annual basis, how much of each species may

be caught in its EEZ (in fisheries jargon, the total allowable catch, or TAC). When its own

fishermen cannot take all the TAC, the coastal state has a duty to allow other states to fish for it in

its EEZ. But the coastal state has a large degree of discretion in calculating the TAC and as to who

should be given access to any surplus. Many bilateral agreements have been concluded to allow for

access, subject to reciprocal treatment, payments or licence conditions. Since the member states of

the European Community, having transferred competence to it with regard to the conservation and

management of sea fishing resources, the relevant rules are adopted by the Community – although

enforced by the member states – and it is the Community which negotiates (by means of the

European Commission) and concludes agreements on fishing in the EEZs of third states or within

competent international organisations.

If a foreign fishing vessel is suspected of breaching the regulations of the coastal state governing

fishing in its EEZ, the state may enforce them by boarding, inspecting and arresting the vessel and

subsequent prosecution (Article 73). The flag state must be promptly notified of an arrest, and the

vessel and crew released promptly once a reasonable bond or other security has been lodged.

Penalties for breaches of regulations must not include imprisonment. If there is a dispute between

the detaining state and the flag state about the detention, it can be submitted to an international court

or tribunal (Article 292).

Force may be used against a fishing vessel only if in the particular

circumstances it is reasonable and proportionate.

On the high seas

The Convention has little to say about fishing on the high seas. Article 116 states that all states have

the right for their nationals to fish on the high

53. Statement by the EC on signature of UNCLOS: see UN Multilateral Treaties, Ch. .6,

‘Declarations’; UKTS (1999) 179.

54. See Case No. 2, The M/V Saiga (No. 2) (St. Vincent and the Grenadines v. Guinea), decided by the

International Tribunal for the Law of the Sea, ILM (1998) 364 and 1202; 110 ILR 736; www.itlos.org; and

Case No. 8, The Grand Prince (Belize v. France), 125 ILR 272. In Case No. 11, The Volga (Russia v.

Australia), ITLOS decided in 2002 that Articles 73(2) and 292 did not permit the inclusion of non-financial

conditions in a security to obtain release of the vessel.

55. See The I’m Alone, 1935 (7 ILR 203), The Red Crusader, 1962 (35 ILR 485), The M/V Saiga (No. 2)

(Note 55 above), para. 156, and Article 22(1)(f) of the Fish Stocks Agreement (n. 58 below).

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seas, subject to (a) treaty obligations, (b) the rights of coastal states in respect of straddling stocks

and highly migratory species (see below), and (c) the duty to take measures, either nationally or in

co-operation with other states, to conserve fish stocks. This duty is elaborated somewhat by the

general principles in Articles 118–119, but co-operation depends on the effectiveness of regional

fisheries commissions for the conservation and management of marine living resources.

Shared and straddling stocks and highly migratory species

Fish are notorious for not respecting territorial limits. A species will often migrate between two

EEZs (‘shared stocks’) or between one or more EEZs and the high seas (‘straddling stocks’). When

two or more EEZs share the same stock or an associated stock, the states have an obligation to seek

agreement on measures to ensure the conservation and development of the stock (Article 63(1)).

There are several agreements for this purpose under which TACs are agreed annually on a bilateral

or a multilateral (regional fisheries commission) basis.

The most important highly migratory species of fish is tuna. Article 64 of the Convention and the

Straddling and Highly Migratory Fish Stocks Agreement 1995

together provide that, where the

species is found in an EEZ, the coastal state and other states fishing in the EEZ or on the high seas

beyond it have a duty to co-operate in the conservation and management of the species.

Other highly migratory species include anadromous species, such as salmon, which spawn in

fresh water before migrating to the sea (Article 66), and catadromous species, such as eels, which do

the opposite (Article 67), and marine mammals.

Sedentary species

Sedentary species, as defined in Article 77(4), include molluscs, such as oysters, but there is doubt

whether lobsters and crabs are included.

Sedentary species are part of the natural resources of the

continental

56. See pp. 333-6 below.

57. 2167 UNTS 3 (No. 37924); ILM (1995) 1542; UKTS (2004) 19. Its full title is thirty-seven words long.

It is more usually known as the Fish Stocks Agreement or the Straddling Stocks Agreement. It entered into

force on 11 December 2001.

58. See Churchill and Lowe, pp. 285 and 320.

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shelf and the coastal state has no duty to conserve them or allow foreign fishermen to harvest them.

Whales and other marine mammals

A coastal state is allowed by Article 65 to prohibit, limit or regulate the exploitation of marine

mammals, such as whales and seals, in its EEZ more strictly than the Convention provides for other

living resources. The International Whaling Commission (IWC) regulates whaling in all waters, but

its measures apply only to its members, who can opt out of them. (For details on fisheries

commissions and the IWC, see pp. 333 below.)

Wrecks

There is a lack of control over wrecks outside the territorial sea, although a wreck in the contiguous

zone is assimilated to one found in the territorial sea, and the coastal state can require its approval to

remove it. The rights of the owners of the wreck and the law of salvage

are unaffected (Article

303). But the coastal state has no jurisdiction over wrecked ships of foreign states or their nationals

in the EEZ or on the continental shelf. The IMO is currently developing a convention on the removal

of wrecks for consideration at a diplomatic conference, perhaps in 2006 but quite possibly later.

Underwater cultural heritage

Concern has been expressed at the need to protect certain prominent wrecks and their contents lying

on the seabed. The liner Titanic is the most prominent example. The ferry Estonia, which sank in the

Baltic Sea in 1994, is the subject of a treaty between Estonia, Finland and Sweden (to which other

states can accede)

to protect the wreck, in particular

59. When compensation is payable for assisting a ship in danger or saving it or its cargo. See now the

IMO International Convention on Salvage 1989 (www.imo.org or UKTS (1996) 93), which entered into

force in 1996 and now has forty-seven parties representing 36.33 per cent of world tonnage. It is intended

to replace the Brussels Convention 1910 (UKTS (1913) 4; 212 CTS 187). The 1989 Convention goes

further in providing that a salvager can be paid for preventing or minimising pollution even if it was

unable to save the ship.

60. 1890 UNTS 176 (No. 32189); with Additional Protocol 1996, UKTS (1999) 74, the United Kingdom

having acceded.