Open sea - what is it? Definition and concept according to international law

2024 Author: Henry Conors | [email protected]. Last modified: 2024-02-12 02:39

The turbulent time of great geographical discoveries and colonial conquests by European powers called for the emergence of new legal doctrines that would serve as a serious justification for resolving controversial issues that arose when the interests of two or more states clashed. The long-awaited response to the needs of navigation was the formed legal principles, of which the "high seas" is considered the most important. This concept was first introduced in the 17th century by the Dutch scientist Hugo Grotius (Hugo de Groot). And as I. V. Lukshin correctly noted later, in the future it acquired a comprehensive character and freedom of navigation is still based on it.

The concept of "open sea"

The boundless expanses of seas and oceans, which originate beyond the outer boundaries of territorial waters and economic regions, are commonly referred to as the "high seas". Despite the fact that certain parts of these expanses of water have different legal regimes, they are endowed with an equal legal status: these territories are not subject to the sovereignty of any state. The release of the high seas from the influence of the sovereignty of an individual country or group of states was an important part of the historical process, which was accompanied by the recognition of the right of every people to freely use the neutral space.

Thus, the high seas are parts of the sea (the oceans) that are in common use by all states on the basis of their complete equality. The exploitation of the high seas is based on the generally accepted postulate that no state has the right to establish its rule on the territories of the high seas and the airspace above them.

From history

The formation of the concept of "freedom of the sea" outside the coastal zone is determined by the XV-XVIII centuries, when the struggle between the two feudal powers that divided the sea between themselves - Spain and Portugal, with the states that took the first steps of capitalist production - England, France began, and later Holland. At this time, the arguments for the concept of freedom of the high seas were developed. The deepest substantiation of this idea was given to the Dutch figure and lawyer Hugh de Groot in the brochure The Free Sea (1609). Later, the Swiss scientist E. Vattel managed to develop the teachings of the Dutch lawyer in the publication "The Law of Nations" (1758).

The affirmation of the principle of freedom of the high seas in international law is a consequence of the need for countries in economic ties, the search for new markets and sources of raw materials. Final ratification of thisposition occurred towards the end of the 18th century. Neutral countries that suffered during the fighting on the seas and suffered serious economic losses came out in favor of ensuring freedom of navigation. Their interests were clearly justified in the Russian declaration of 1780 addressed to France, England and Madrid. In it, the Russian government, setting out the foundations of freedom of navigation and trade in the sea, announced the right of neutral countries to apply appropriate protection in case of violation of these foundations.

At the beginning of the 19th century, the principle of freedom of the sea was recognized by almost all states. It should be noted that Great Britain, which often claimed complete dominance in open waters, was a serious obstacle to its global assertion.

International legal principles

The legal status of the high seas in the 20th century was first formulated at the 1958 Geneva Conference. In Article 2 of the international treaty concluded following the meetings of the participating countries, it was proclaimed that in the waters of the high seas, all states equally have the right to freedom of navigation, flights, fishing, the unhindered extraction of natural resources and the laying of routes for underwater communication cables and pipelines.. It was also stressed that no state could have any claim to parts of the high seas. This presentation required elaboration, since the states could not reach full agreement on the legal status of certain parts of the high seas.

At the UN conference onthe Law of the Sea of 1982, the states managed to reach agreement on a number of controversial issues, after which the Final Act was signed. The adopted Convention emphasized that the freedom to use the high seas is realized only in accordance with the established norms of international law. Free use itself follows from the position of a reasonable combination of certain types of activities of states, in which they must take into account the possible interests of other participants in the use of the high seas.

In the current realities, the principle of freedom of the high seas is the right legal support against the attempts of coastal states to expand their sovereignty to maritime spaces beyond the established limits of territorial waters.

International Seabed Area

The 1982 UN Convention on the Law of the Sea also included provisions for the international seabed area, which in the past was an integral part of the high seas. The opened up opportunities for the exploitation of the bottom led to the need to discuss the issue of its special regulation. The term "area" means the bottom of the seas and oceans, their subsoil beyond the boundaries of influence of national jurisdiction. The Charter of the United Nations and other norms of international law have determined that operations carried out on the seabed should not affect the legal status of the waters of the high seas above the seabed or the airspace above them.

The seabed area, like the high seas, is the common heritage of mankind,consequently, all spaces of the bottom and all its bowels belong to the whole human society. Therefore, developing States are fully en titled to a portion of the income earned by other States from the exploitation of seabed mineral resources. No country may claim or exercise sovereignty over any particular part of the area or its resources, nor may it appropriate any part of it. Only an authorized intergovernmental seabed organization can enter into agreements with states or certain companies wishing to conduct activities in the area, and it also ensures the control of these activities in accordance with the concluded agreement.

Legal status of a ship on the high seas

Freedom of navigation defines that any state, whether coastal or landlocked, has the right to have ships under its flag sail on the high seas. The ship will have the nationality of the country whose flag it is en titled to fly. This means that every ship plying the waters of the high seas must have the flag of the country of its registration or an international organization. The conditions and procedure for granting a flag to a ship and its right to fly this flag are not the subject of international legal regulation and are related to the internal competence of the state, where they are registered with the appropriate documents.

Provision of a flag is not a formal act and in accordance with internationallaw imposes certain responsibilities on the state. In particular, it implies an active real connection between the state and the ship itself. It is also the responsibility of the state to exercise technical, administrative and social control over ships flying its flag. A ship is deprived of the opportunity to seek the protection of any state or international organization in case of need, if it sailed under different flags or without a flag at all.

Right to Intervene

If a ship engaged in illegal activities is on the high seas, in this case the 1958 and 1982 Conventions provide for the intervention of warships, which have the right to inspect a ship with a foreign flag in open waters if there is reason to believe that it practices piracy, slave trade, unauthorized radio and television broadcasting, or stop a ship exercising the right of prosecution. Intervention is also envisaged in situations where the ship does not have a flag raised or it uses the flag of a country other than its own, or has the same nationality as a warship, but at the same time avoids hoisting the flag. In addition, the act of interference is allowed on the basis of established international treaties.

It should be added that military ships and ships in public service have full immunity on the high seas from the authority of any state, except for the flag state.

Piracy and armed robbery

Piracy on the high seas is not a section of history that has sunk into oblivion, but a problem that is currently quite worrying the world community, and all issues related to it and armed robbery at sea are of particular relevance. First of all, the severity of this problem is cultivated by the active activity of pirates in different parts of the world, but it is even more aggravated by the fact that piracy has become associated with such illegal acts as international terrorism, smuggling of weapons and drugs, and other dangerous elements.

The 1982 Convention made a significant contribution to the fight against piracy, at which it was proclaimed that the waters of the high seas are neutral and reserved only for peaceful purposes. It approved the right of a warship of any state to interrupt the voyage of a vessel suspected of robbery. A warship has the power to detain pirate ships and carry out all operations provided for by the provisions of this Convention.

Conclusion

The high seas are territories with an international regime, located outside the territorial sea, on which the sovereignty of any state does not apply. They are also defined as territories belonging to all. These spaces cannot be subject to national appropriation, and are available for exploration and exploitation by all states of the earth, in accordance with the norms of international law. In other words, this means that the open sea in the modern worldavailable to the ship of any state that has the full right to freely move through the sea, where no one will interfere with it, detain or harass it without legitimate grounds.