Meaningful exercise of freedom of high sea.

Freedom of high sea is the concept adopted from the book Mare Liberum the meaning of which in English is “the freedom of the sea”; a book by great legal mind, Hugo Grotius. Where the author illustrated that sea is common heritage of mankind. Later, international community adopted the same for high sea with some extension and interpretation. The last compiled result of which is UNCLOS 1982.

Freedom has always been a hot topic for centuries but generally in the context of state and civilian relation. But when the context is changed to High Sea in relation among states regarding the right regime, the subject matter becomes more interesting.

At this point, High Sea must be defined first. According to article 86 of the UNCLOS –III (1982), it said “ .. 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.” To simplify the definition for the purpose of understanding we can say any water body beyond 200 nautical miles from the baseline of any state can be considered as High Sea.

According to the customary international law, high sea is known to be terra nullius and free for all. Furthermore, article 87 of UNCLOS III under the title “Freedom of the high seas” listed few rights mentioning them as freedom, for every coastal and land-locked state, they are;

  1. freedom of navigation;
  2. freedom of overflight;
  3. freedom to lay submarine cable and pipelines, subject to part VI;
  4. freedom to construct artificial islands and other installations permitted under international law, subject to part VI;
  5. freedom of fishing, subject to the conditions laid down in section 2;
  6. freedom of scientific research, subject to part VI and XIII

But the fact is that these rights are not exhaustive, rather high sea is reserved for every peaceful purpose; as per article 88 of UNCLOS III. Now, here the peaceful purpose is not defined specifically, so our legal mind of a prudence man must be applied to justify the proper use of this common heritage of mankind, hence, the implication of the word “Meaningful” paves the way for further discussion on the uses of high seas. The meaning of civilisation, is to live with peace and co-operation, enjoying the personal right but without harming others. It is a subjective matter, it depends on a particular situation. Meaningful can be understood easily by the one of the most used words of law, which is “Reasonable” and it highly depends on the particular situation based on the fact. So, we must be careful during the exercise of our freedom, so that we don’t hurt others, and that care is meaningful to maintain peace and order among the international community.

Freedom comes with duties and responsibilities, freedom doesn’t mean the unprecedented use of the right and this principle is also applicable for the high sea regime as well. Therefore, there are certain exceptions to this freedom that imposed certain obligation to maintain the peaceful relation of the international community.

Meaningful exercise conveys great value to maintain peace and security along with the good use (bon usage) for the public order and social welfare.

UNCLOS III tried to resolve few well-known problem mentioning them in its article with some clear authority given in the hand of the international community.  For example; It is the duty of every state to act against piracy (article 100, UNCLOS) whether by private ship (article 101, UNCLOS) or government ship (article 102)  , any state can impose concurrent jurisdiction if any ship from high sea broadcast unauthorized signal or create interruption to authorized broadcasting and may seize, arrest and prosecute the ship (article 109 and 110 of UNCLOS) , Slave trade is also prohibited by article 110 (b) of UNCLOS, any ship if suspected of illicitly trafficking in narcotic and psychotropic drugs by any state may request the cooperation of other states to suppress such traffic (article 108). States can take measures to avoid major pollution (article 221).

As mentioned earlier, this list is not exhaustive as well, the wide range freedom is also a way to lead a wide range of conflicts where state should use their legal mind in respect of international law. On the other hand, this loophole can be used as a legal shield by big guns. States have to be aware of and consider the interests of other states in using high sea. It is also important that states should abstain them from activities that harm or interrupt other countries. If there is any conflict between countries freedom the important and meaningful one must be prioritised.

Last but not list it is a subjective matter and matter of legal interpretation of specific action taken by any state. For example;

In 1950s United State justified their nuclear test in high sea saying that, it is justified as long as reasonable regard is paid to the interests of other states in their exercise of the freedom of the high seas.[1] And that is a miss use of the freedom of high sea at that time. Though now the peaceful purpose clause is added (article 88, UNCLOS 1982).

Another example of interpretation of international law was presented by France on the matter of search and inspection of 4775 ships asserted a right to check if they are carrying arms to Algeria during the emergency time 1956 -1962. They argued their right to self-defense under article 51 of UN Charter. [2]

Thus we see the freedom of high sea must be use in a meaningful way to avoid conflicts with each other to use the high sea for the common benefit of all.

[1] R.J. DUPUY and D. VIGNES, A handbook on the new law of the sea, volume 1, Martinus Nijhoff, 1991, pp. 397-398.

[2] R.R Churchill and A.V Lowe, The law of the sea, third edition, Mancherster University press, 1983, pp. 217

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Rayhanul Islam

Advocate Rayhanul Islam is the founder and Editor in Chief of Law Help BD. He is also a researcher. Critical thinking is his main focus. He is on a quest to bring positive change to the legal sector of Bangladesh. He promotes legal knowledge and human rights concept to the root level. e-mail: [email protected]

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