Law of the Sea Lecture – Hot Pursuit, Vessel Nationality, High Seas, Fishing & Piracy

Administrative & Pedagogical Announcements

  • Lecturer thanked students for completing the online feedback form (only 4 responses so far).
  • Positive feedback: interactive discussions, quizzes help students keep up, subject matter is enjoyable.
  • Areas for improvement:
    1. Quiz answers released faster – now posted; students should remind lecturer if not available by Wednesday.
    2. Discussing frequently-missed quiz questions in class – class agreed this would help.
    3. Lecture pace sometimes fast – students encouraged to interrupt for clarification; collective confusion likely if one person is lost.
  • Confusing topics flagged by students: straits; ambiguity in international law; maritime zones recap requested.

Quick Review of Maritime Zones

  • Always locate the ship first; jurisdictional rights flow from position.
  • Key zones & coastal‐state rights (non-exhaustive):
    • Internal waters: full sovereignty.
    • Territorial sea 0\text{–}12\ \text{nm}: sovereignty tempered by innocent passage.
    • Contiguous zone 12\text{–}24\ \text{nm}: limited enforcement for customs, immigration, fiscal, sanitary laws.
    • EEZ 0\text{–}200\ \text{nm}: sovereign rights over resources; freedoms of navigation/overflight remain.
    • Continental shelf (legal regime distinct from EEZ): sovereign rights over seabed/exploitation; can extend beyond 200\ \text{nm} per Art 76.
    • High seas: beyond national jurisdiction; freedoms under Art 87.
  • Innocent passage applies only in the territorial sea; not in internal waters or beyond 12 nm.

Hot Pursuit (Art 111 UNCLOS) – Clarifications & Legislative Alignment

Scope & Initiation

  • May begin for violations in the EEZ or on the continental shelf, including safety zones (Art 111(2)).
  • Clarified using the Arctic Sunrise arbitration: Russia had to start pursuit immediately while vessel was in the 500\ \text{m} safety zone; pursuit can also start for continental-shelf infringements outside safety zones.

Small-boat (“ship’s boats”) rule

  • Art 111(1): pursuit can start if any boat from the mother ship is within the relevant zone—metaphor: “if an arm is in the field”.

Domestic Legislation Example – New Zealand Fisheries Act (repealed section)

  • Allowed officers to pursue beyond “NZ fisheries waters” if they had fresh pursuit grounds.
  • Inconsistencies with UNCLOS identified by students:
    1. No explicit bar on entering another state’s territorial sea.
    2. Used common-law term fresh pursuit (ambiguity vs. hot pursuit).
    3. No requirement for audiovisual stop signal.
    4. Seemed to require enforcement vessel also to be within NZ waters, contrary to Art 111(1) proviso.
  • Resulting risk: domestic-law-compliant arrest might breach international law, exposing NZ to state-state claims.

Updated NZ & Australian Maritime Powers Provisions

  • Incorporate:
    • Clear audiovisual/radio order to stop + reasonable efforts to ensure comprehension.
    • Continuous pursuit definition includes hand-off to other state’s ship/aircraft.
    • Pursuit NOT interrupted merely because target is temporarily out of visual range if tracked by radar, satellite, etc.
    • Allows cross-handover under bilateral MOUs (e.g.
      Australia–France around Kerguelen/Herd Islands).

Open Questions

  • Is refuelling pause an “interruption”? Depends on facts; safest practice: maintain aerial surveillance during pause.

Nationality of Vessels & Flag-State Duties

Core Articles

  • Art 91 – State sets conditions for grant of nationality; “genuine link” required.
  • Art 92 – Exclusive flag-state jurisdiction on the high seas; one flag only; no change mid-voyage unless genuine sale / registry shift; dual-flag use ≡ stateless.
  • Art 94 – Flag-state must keep register & exercise effective control (seaworthiness, manning, labour, safety, compliance with IMO/ILO instruments).

Flags of Convenience (FOC) / Open Registers

  • Typical FOC states: Panama, Liberia, Cyprus, Vanuatu.
  • Motivation for shipowners: lower taxes, lax labour standards, cheaper registration, limited enforcement.
  • Motivation for small states: registry fees \rightarrow revenue; often run by private companies (e.g. in London).
  • Critique: weak “genuine link”, limited oversight.

Case Study 1 – M/V Saiga (No. 2) (ITLOS 1999)

  • Facts: bunkering vessel arrested by Guinea seaward of EEZ; flagged to Saint Vincent & the Grenadines (SVG).
  • Guinea argued: provisional registration expired (09 Sep 1997); arrest on 28 Oct; permanent certificate issued 28 Nov \Rightarrow stateless at arrest.
  • Tribunal findings:
    1. SVG domestic law kept registration alive +1 year post-expiry \Rightarrow nationality persisted.
    2. SVG acted continuously as flag state (diplomatic protests etc.).
    3. Genuine-link clause not litigable by third states – Art 91 genuine link is internal to flag state; negotiating history deleted proposed external challenge mechanism.

Case Study 2 – Grand Prince Prompt-Release (ITLOS 2001)

  • Facts: Fishing vessel Grand Prince arrested by France in EEZ of Kerguelen Islands (French Southern Ocean).
  • Initially Belize-flagged; Belize MFA notified France of immediate deletion from registry for repeat fisheries violations (Jan); months later private registry tried to reinstate to aid litigation.
  • Tribunal: nationality ceased at deletion; inconsistent Belize actions affirmed loss; unlike Saiga, Belize law lacked automatic continuation; result: prompt-release application dismissed.

High Seas – Nature & Freedoms

Basic Principles

  • High seas = all parts of ocean beyond EEZ/territorial claims; cannot be subjected to sovereignty (Art 89).
  • Reserved for peaceful purposes (Art 88) – navies still lawful under UN Charter self-defence.
  • Any state (even landlocked) may fly a flag (Art 90).

Freedoms (Art 87):

  1. Navigation.
  2. Overflight.
  3. Laying submarine cables/pipelines.
  4. Constructing artificial islands/structures.
  5. Fishing.
  6. Scientific research.
    All subject to “due regard” for others and for activities in “the Area” (deep seabed).

Fishing on the High Seas – Built-in Constraints

  • Art 116: right to fish limited by
    a. treaty obligations;
    b. duties to cooperate with coastal states (straddling / highly migratory stocks – Arts 63, 64);
    c. other UNCLOS provisions.
  • Art 117: flag states must adopt conservation measures.
  • Art 118: obligation to cooperate \rightarrow basis for Regional Fisheries Management Organisations (RFMOs).
  • Maximum Sustainable Yield (MSY) requirement (Art 119(1)(a)) applies to high-seas stocks.
  • Art 120: special protection for marine mammals (can set stricter rules).

Duty to Render Assistance (Art 98)

  • Codifies maritime “humanity” principle: every master, insofar as feasible without serious danger, must assist persons in distress.
  • Supported by IMO SAR Convention – coastal states allocate search-and-rescue regions (NZ’s region huge: Pacific Islands \rightarrow Antarctica).

Right of Visit (Art 110)

Warships may board a foreign ship on the high seas only if reasonable suspicion of:

  1. Piracy.
  2. Slave trade.
  3. Unauthorised broadcasting.
  4. Statelessness (no nationality).
  5. “Disguised nationality” – ship actually of same nationality as warship despite contrary flag.

Visit ≠ automatic enforcement; must look to specific provisions for seizure/jurisdiction.

Piracy – Definition & Jurisdiction

Art 101 Elements

“Any illegal acts of violence, detention, or depredation, committed for private ends, by crew or passengers of a private ship/aircraft, directed:
a) on the high seas or in a place outside any state jurisdiction against another ship/aircraft; or
b) against persons/property on board such ship/aircraft; plus facilitation/attempt.

  • High seas / EEZ only; incidents in territorial sea = armed robbery at sea (coastal-state criminal jurisdiction).
  • Universal jurisdiction (Art 105): any state may seize pirate ship and prosecute domestically.

Illustrative Incidents

  • Achille Lauro (1985) – cruise ship hijacked by PLO members already on board; not piracy (no “one ship against another”).
  • Sirius Star (2008) – VLCC captured by Somali pirates attacking from skiffs; classic piracy (private ends, violence, two ships, high seas).

Sea Shepherd Hypothetical – Are Activists or Japan “Pirates”?

Actions alleged: throwing butyric acid, boarding Japanese catcher, intentional ramming, Japanese water-cannons/LRAD, claim of gunshots.

Analytical hurdles:

  1. Private ends? Conservationists claim public environmental purpose \Rightarrow debate whether “private ends” = non-governmental vs. pecuniary.
  2. Two-ship requirement – ramming fits; boarding from same vessel may not (akin to Achille Lauro).
  3. Illegality – depends on flag-state & international safety laws.
  4. Japanese research fleet may be state ships \Rightarrow cannot be pirates (needs private ship).
  5. Consequential stakes: labelling piracy triggers universal enforcement powers; tribunals cautious.

Key Take-Home Points & Exam Triggers

  • Always start with location of vessel \rightarrow triggers applicable zone rules.
  • Hot pursuit: scrupulous compliance with Art 111 procedural steps (immediate, continuous, signal to stop, cease at foreign territorial sea).
  • Vessel nationality: certificate expiry ≠ automatic loss; look at flag-state law & conduct; third states cannot invalidate nationality by alleging no genuine link.
  • Flags of convenience pose oversight challenges; still enjoy exclusive high-seas jurisdiction.
  • High-seas freedoms exist but not absolute; conservation duties & due regard temper them.
  • Piracy definition narrow; universal jurisdiction powerful but must satisfy private ends + two-ship + high seas criteria.