The basic principle relating to jurisdiction on the high seas which states that vessels on the high seas are subject only to the authority of the flag State is subject to exception, except in the case of warships which are not used for merchant purpose. Still, the concept of the freedom of the high seas is similarly limited by exercise of a series of exceptions.378
Right of Visit
This means the right accorded to warships in customary international law to approach and ascertain the nationality of ships in the high seas. However, the right of approach, to identify vessels, does not automatically incorporate the right to board or visit ships.379 This may be undertaken, in the absence of hostilities between the flag States of the warship and a merchant vessel and in the absence of special treaty providing to the contrary, where the ship is engaged in piracy or the slave trade, or, though flying a
376(1927) PCIJ, Series A, N0.IO 25.; Sellers v Maritime Safety Inspector (1999) 2NZLR 44, 46- 48.
377The equivalent articles are seen in articles 8 and 9 of the Geneva Convention.
378M. N. Shaw, op cit, p.549.
379Ibid.
144 foreign flag or no flag at all, is indeed of the same nationality as the warship or of no nationality.380 However, the warship should always exercise care in such circumstances, since it may be liable to pay compensation for any loss or damage sustained if its suspicions are unfounded and the ship boarded has not committed any act justifying such suspicions.
While commenting on this right to visit by warships, Smith said:
The right of any ship to fly a particular flag must obviously be subject to verification by proper authority, and from this it follows that warships have a general right to verify the nationality of any merchant ship, which they may meet on the high seas.
This „right of approach‟ (verification du pavillon or reconnaissance) is the only qualification under customary law of the general principle which forbids any interference in the time of peace with ships of another nationality upon high seas. Any other act of interference (apart from the repression of piracy) must be justified under powers conferred by treaty.
Provided that the merchant vessel responds by showing her flag, the Captain of the warship is not justified in boarding her or taking any further action, unless there is reasonable ground for suspecting that
380Ibid.
145 she is engaged in piracy or some other improper
activity….381 Piracy
It has been stated that piracy constitutes a strong and formidable exception to the exclusive jurisdiction of the flag State and the principle of the freedom of the high seas.382
Articles 100-107 of the 1982 Convention are the replica of the rules on piracy as contained inArticles 14-21 of the 1958 Convention. In addition to Article 101 of the 1982 Convention which vividly defines piracy, Oppenheim has defined the term in this way,
“piracy, in its original and strict meaning, is every unauthorized act of violence committed by a private vessel on the high seas against another vessel with intent to plunder animofurandi….”383
The essence of or what amounts to piracy under international law is that it must be committed for private ends, that is to say, it is not committed to serve the political purpose of other States. Where a vessel involves in piracy, any and every State may seize such private ship or aircraft whether on the high seas or on terra nullius and arrest the persons and seize the property on board.
Unauthorized Broadcast384
The Convention provides that all States are to co-operate in the suppression of unauthorized broadcasting from the high seas. This unauthorized broadcasting is defined
381Quoted in D. J. Harris, op cit, p.457.
382M. N. Shaw, op cit, p.549.
383D. J. Harris, op cit, p.458.
384J. C.Woodlife, „The Demise of Unauthorized Broadcasting from Ships in International Waters‟(1986) 1 Journal of Estuarine and Coastal Law, 402.
121UNCLOS, Art.109 (1)-(4).
146 as transmission of sound or TV 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. Any person engaged in such broadcasting may be prosecuted by the flag State of the ship, the State of registry of the installation, the State of which the person is a national, any State where the transmission can be reached or any State where authorized radio communication is suffering interference.Any of the above States having
jurisdiction may arrest any person or ship engaging in unauthorized broadcasting on the high seas and seize the broadcasting apparatus.385
Hot Pursuit386
The right of hot pursuit of a foreign ship is a principle in international law designed to ensure that a vessel which has infringed the laws of a coastal State does not evade punishment by fleeing to the high seas. In this circumstance, a coastal State‟s jurisdiction is extended onto the high seas in order to pursue and seize a ship which is reasonably suspected of infringing its laws. The right of hot pursuit is as provided under Article 111 of the 1982 Convention built upon Article 23 of the High Seas Convention, 1958. Hot pursuit may only begin when the pursuing ship has satisfied itself that the ship being pursued or one of its boats is within the limits of internal waters, territorial sea, contiguous zone or economic zone or on the continental shelf of the coastal State, and may only continue in that pursuit outside the territorial sea or such other zones if it is uninterrupted. Where the pursuit commences while the foreign ship is in the continuous
122W. C. Gilmore, „Hot Pursuit: The Case of R v Mills and Others‟ (1995) 44 ICLQ, 949.; N Poulantzas, The
Right of Hot Pursuit in International Law (2nd edn, The Hague: MartinusNjihoff, 2002) cited in M. N. Shaw, op cit, p.551.
147 zone, it may only be undertaken or justified if there has been any form of violation of the rights for the protection of which the zone was established. The right may commence in a similar way from the archipelagic waters. It is however, essential that prior to that chase, a visual or auditory signal to ship has been given at a distance enabling it to be seen or heard by the
foreign ship and pursuit may be undertaken by warships or military aircrafts or by specially
authorized government ships or planes. The right of hot pursuit terminates as soon as the ship pursued has entered the territorial waters of its own or that of a Third State. The International Tribunal for the Law f the Sea (ITLOS) has reiterated that all these conditions as laid down in Article 111 are cumulative; each one of them must be satisfied in order for hot pursuit to be lawful.387
Treaty Rights
States may by treaty allow each other‟s warships to exercise certain powers of visit and search any vessels flying the flags of the signatories to the treaty.388 For instance, most agreements in the last century in relation to suppression of slave trade provided that warships of the parties to such agreements have the powers to search and even detain vessels suspected of being involved in slave trade, provided such vessels were flying the flags of the Treaty States. Under the Convention for the Protection of Submarine Cables (CPSC), 1984 the warships of Contracting States are empowered to stop and search and
387M/V Saiga, supra, pp.143, 194.
388M. N. Shaw, op cit, p.552.
148 ascertain the nationality of merchant ships that were suspected of infringing the terms of the Convention.389