Freedom of the seas

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Freedom of the seas [1] is a principle in the law of the sea. It stresses freedom to navigate the oceans. It also disapproves of war fought in water. The freedom is to be breached only in a necessary international agreement.

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Freedom of the Seas, World War II US poster "Freedom of Seas is in Your Hands" - NARA - 514332.jpg
Freedom of the Seas, World War II US poster

This principle was one of U.S. President Woodrow Wilson's Fourteen Points proposed during the First World War. In his speech to the Congress, the president said:

Absolute freedom of navigation upon the seas, outside territorial waters, alike in peace and in war, except as the seas may be closed in whole or in part by international action for the enforcement of international covenants.

The United States' allies Britain and France were opposed to this point, as the United Kingdom was also a considerable naval power at the time. As with Wilson's other points, freedom of the seas was rejected by the German government.

Today, the concept of "freedom of the seas" can be found in the United Nations Convention on the Law of the Sea under Article 87(1) which states: "the high seas are open to all states, whether coastal or land-locked". Article 87(1) (a) to (f) gives a non-exhaustive list of freedoms including navigation, overflight, the laying of submarine cables, building artificial islands, fishing and scientific research.

Historical background

Between the end of the 15th century up until the 17th century various powers claimed sovereignty over parts of the sea. In 1609, Dutch jurist and philosopher Hugo Grotius wrote what is considered the foundation of international legal doctrine regarding the seas and oceans  – Mare Liberum , a Latin title that translates to "freedom of the seas". [2] The Grotian concept of "freedom of the sea" was only accepted after a century long debate between Grotius' ideas and John Selden 's. [3]

While it is generally assumed that Grotius first propounded the principle of freedom of the seas, countries in the Indian Ocean and other Asian seas accepted the right of unobstructed navigation long before Grotius wrote his De Jure Praedae (On the Law of Spoils) in the year of 1604. Previously, in the 16th century, Spanish theologian Francisco de Vitoria postulated the idea of freedom of the seas in a more rudimentary fashion under the principles of jus gentium . [4]

During World War II, nations started to expand and claim many resources and water territories all over their surrounding coasts. There were four international treaties meticulously drafted in the late 1950s and onto the 1970s, but the issues were not resolved between nations until 1982 when the United Nations Convention on the Law of the Sea was introduced.

UNCLOS is a Law of the Sea treaty: an agreement of rights and responsibilities of nations and their use of the world's ocean with guidelines of trade, environment, and the management of marine and open seas resources. UNCLOS replaced the four international treaties drafted in the late 1950s through 1970s. As of 2013, 165 countries and the European Union have joined the convention.

High seas and registration

According to international law, Article 92 of the convention which describes ships shall sail under the flag of one state only and, save in exceptional cases expressly provided for in international treaties or in this convention, shall be subject to its exclusive jurisdiction on the high seas; [5] however, when a ship is involved in certain criminal acts, such as piracy, [6] any nation can exercise jurisdiction under the doctrine of universal jurisdiction. High seas were defined as any part of the sea that was not either territorial sea or internal waters, territorial waters and exclusive economic zones. Article 88 of the 1982 Convention states that the high seas shall be reserved for peaceful purposes. Many countries engage in military maneuvers and the testing of conventional weapons and nuclear weapons on the high seas. [7] [8] In order to deliver the right punishment to the right person or state, ships must be registered to a country to show proof of ownership. [9] The owner of the vessel sometimes prefers to pay the lower registration fees by picking countries such as Panama, Bermuda, Italy, Malta and the Netherlands. According to Cruise Lines International Association, 90% of commercial vessels calling on U.S. ports fly foreign flags. [10] To avoid the high cost with more rules and regulations, ships and tankers sometime prefer lower cost registration with a lower standard of inspection and regulation by picking a country that exercises less control over their registered ships, [11] though many ships are owned by individuals or companies in another country (most commonly Japan and Greece) under a system called "flag of convenience". Registering a ship in Panama means that the ship is governed by the maritime rules of Panama rather than the ship owner's country. Ship owners do this because Panama has low taxes and fewer labor and safety regulations than most other countries. Ship owners can make their staff work longer hours in less safe environments, and therefore maximize their profits. Other countries, including Liberia, Cyprus and the Bahamas also offer flags of convenience, but Panama has the most ships registered under the scheme. Ships registered with the US will cost more, and the employee wages will be even higher. [10] Freedom of the seas allows a ship to move freely on the ocean as long as it follows international law.

Trade opportunities

From the Vikings to the European, Central Asia, Africa and North and South America, trade has served an important role in history, and has been a key factor of a growing economy. Trade transfers the ownership of goods from one person or entity to another by getting a product or service in exchange from the buyer. When a ship sets sail, there may be many ports waiting for it to bring goods from all over the world for trade and sale. Free trade opening up markets to foreign suppliers increases competition. Without free trade, domestic companies may have enjoyed monopolies or oligopolies that enabled them to keep prices well above marginal costs. Trade liberalization will undermine that market power. [12]

The Merchant Marine Act of 1920, also known as the Jones Act (46 USC § 883) is a maritime law that controls coastal trade within the United States and determines which ships may lawfully engage in that trade and the rules under which they must operate. [13] The act is in place to protect jobs for US citizens and its people working at U.S. ports, and on U.S. vessels. Many vessels around the globe sail under many different flags, and have different crews from different parts of the world where the pay rate is much lower than the U.S.[ citation needed ] The Jones Act protects the Americans' jobs and restricts coastwise transportation of passengers. 46 USC § 12108 additionally restricts the use of foreign vessels to commercially catch or transport fish in U.S. waters.

See also

Related Research Articles

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Admiralty law or maritime law is a body of law that governs nautical issues and private maritime disputes. Admiralty law consists of both domestic law on maritime activities, and private international law governing the relationships between private parties operating or using ocean-going ships. While each legal jurisdiction usually has its own legislation governing maritime matters, the international nature of the topic and the need for uniformity has, since 1900, led to considerable international maritime law developments, including numerous multilateral treaties.

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The International Convention for the Prevention of Pollution from Ships, 1973 as modified by the Protocol of 1978, or "MARPOL 73/78" is one of the most important international marine environmental conventions. It was developed by the International Maritime Organization with an objective to minimize pollution of the oceans and seas, including dumping, oil and air pollution.

<span class="mw-page-title-main">International waters</span> Water outside of national jurisdiction

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<span class="mw-page-title-main">Flag of convenience</span> Registering a ship in a foreign country

Flag of convenience (FOC) is a business practice whereby a ship's owners register a merchant ship in a ship register of a country other than that of the ship's owners, and the ship flies the civil ensign of that country, called the flag state. The term is often used pejoratively, and although common, the practice is sometimes regarded as contentious.

<span class="mw-page-title-main">Territorial waters</span> Coastal waters that are part of a sovereign states sovereign territory

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Innocent passage is a concept in the law of the sea that allows for a vessel to pass through the territorial sea of another state, subject to certain restrictions. The United Nations Convention on the Law of the Sea Article 19 defines innocent passage as:

  1. Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State. Such passage shall take place in conformity with this Convention and with other rules of international law.
  2. Passage of a foreign ship shall be considered to be prejudicial to the peace, good order or security of the coastal State if in the territorial sea it engages in any of the following activities:
<span class="mw-page-title-main">Flag state</span> Jurisdiction where a merchant vessel is registered

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<i>Mare Liberum</i> Book by Hugo Grotius

Mare Liberum is a book in Latin on international law written by the Dutch jurist and philosopher Hugo Grotius, first published in 1609. In The Free Sea, Grotius formulated the new principle that the sea was international territory and all nations were free to use it for seafaring trade. The disputation was directed towards the Portuguese Mare clausum policy and their claim of monopoly on the East Indian Trade.

Transit passage is a concept of the law of the sea, which allows a vessel or aircraft the freedom of navigation or overflight solely for the purpose of continuous and expeditious transit of a strait between one part of the high seas or exclusive economic zone and another. The requirement of continuous and expeditious transit does not preclude passage through the strait for the purpose of entering, leaving or returning from a state bordering the strait, subject to the conditions of entry to that state. The transit passage may be exercised regardless of the nationality (flag) of the ship, its form of ownership, the merchant or government status of a ship or warship, the private or government status of an aircraft.

Ship registration is the process by which a ship is documented and given the nationality of the country to which the ship has been documented. The nationality allows a ship to travel internationally as it is proof of ownership of the vessel.

An archipelagic state is an island country that consists of one or more archipelago. The designation is legally defined by the United Nations Convention on the Law of the Sea of 1982. The Bahamas, Fiji, Indonesia, Papua New Guinea, and the Philippines are the five original sovereign states that obtained approval in the UNCLOS signed in Montego Bay, Jamaica on 10 December 1982 and qualified as the archipelagic states.

International piracy law is international law that is meant to protect against piracy. Throughout history and legal precedents, pirates have been defined as hostis humani generis, Latin for "the enemy of all mankind". The United Nations has codified much of the law in the United Nations Convention on the Law of the Sea (UNCLOS), which defines different types of piracy and ways to combat it.

An international strait is a narrow natural waterway connecting two parts of the high seas or exclusive economic zones, used for international navigation. Per the United Nations Convention on the Law of the Sea (UNCLOS), a transit passage regime prevails in such straits for both ships and aircraft with few exceptions, even when the territorial waters of bordering country or countries overlap. Worldwide, more than 200 straits might satisfy the criteria of an international strait. Notable international straits include the Bosporus and Dardanelles, Strait of Magellan, Strait of Gibraltar, Strait of Dover, Danish straits and the Strait of Hormuz.

References

  1. ↑ (Latin : mare liberum, lit. "free sea")
  2. ↑ Urbina, Ian (July 31, 2015). "Protecting the Untamed Seas (Published 2015)". The New York Times. Retrieved November 2, 2020.
  3. ↑ Trullio Treves,  High Seas , Max Planck Foundation for International Peace and the Rule of Law (2009).
  4. ↑ Arthur Nussbaum (1947). A concise history of the law of nations. Macmillan Co. p. 62.
  5. ↑ UNCLOS article 92(1)
  6. ↑ UNCLOS article 105
  7. ↑ UNCLOS article 88(1)
  8. ↑ See Trinity (nuclear test) and Ivy Mike.
  9. ↑ "A Guide to Ship Registration" (PDF). Maritime New Zealand. September 30, 2010. Archived from the original (PDF) on October 21, 2019. Retrieved December 12, 2012.
  10. 1 2 "Why are cruise ships registered in foreign countries?". Special for USA TODAY. January 8, 2013. Retrieved December 12, 2012.
  11. ↑ Epps, V. International Law, (2009) pg. 247
  12. ↑ "A short tour of economic theory". The Economist. A survey of world trade. Retrieved April 22, 2014.
  13. ↑ "THE JONES ACT". Mike Vaughn, Attorney at Law. Archived from the original on June 9, 2019. Retrieved April 22, 2014.

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