High seas. The high seas (open sea) refers to all the waters of the World Ocean that lie beyond the outer limits of the exclusive economic zones. The high seas cannot be subordinated to any sovereignty, but are used by all states as equals.

The legal regime of the high seas is determined by international law, mainly by the provisions of the Convention on the High Seas of 1958 and the United Nations Convention on the Law of the Sea of 1982. Under the 1958 Convention on the High Seas, freedom of the high seas includes:

• freedom of navigation;
• freedom of fishing;
• freedom to lay submarine cables and pipelines;
• freedom to fly over the high seas.

The 1982 Convention expanded the concept of freedom of the high seas to include additionally:

• freedom to erect artificial islands and other installations permitted under international law;
• freedom of scientific research.

All states must exercise these freedoms with due regard for the interests of other states. In other words, freedom of the high seas is not absolute.

Freedom of navigation means that every state, whether or not it has access to the sea, has the right to have ships flying its flag on the high seas.

The basis of the legal regime of navigation on the high seas is the principle of freedom of the high seas, which is one of the universally recognized principles of contemporary international law. It derives from the principle of exclusive jurisdiction of the flag State, according to which any vessel on the high seas is subject to the laws and authorities of only the flag State of which it flies.

Only warships or other vessels and aircraft in government service authorized for that purpose are entitled to interfere with the navigation of a foreign merchant vessel on the high seas.

Moreover, such interference is limited to strictly defined cases:

• On the basis of an international treaty;
• if the ship is engaged in piracy;
• If the ship is engaged in the slave trade;
• if the ship is engaged in unauthorized broadcasting and the flag state of the warship has jurisdiction;
• if the ship has no nationality;
• if the ship is flying a foreign flag or refuses to fly a flag, but the ship is in fact of the same nationality as the ship in question;
• when exercising the right of pursuit.

In all the above cases, a warship may make a verification of a ship’s right to its flag. For this purpose, it may send a dinghy under the command of an officer to the suspected vessel. If, after checking the papers, suspicion remains, he may make further inspection on board that vessel with all due diligence.

If the suspicion proves unfounded and provided that the ship inspected has not committed any act which would justify the suspicion, he shall be compensated for any loss or damage caused.

As regards the possibility of intervention under an international treaty, it can only be carried out provided that the warship or vessel intervening and the ship in respect of which the intervention is carried out are parties to the relevant international treaty.

One of the earliest conventions providing for intervention on the high seas is the North Sea Fisheries Convention of 1882. Its provisions provide for the control of fishing by ships of the navies of participating countries to establish violations of the Convention, as well as the bringing of the offending ship to the port of the flag state and handing over to the competent authorities.

Other international treaties permitting intervention on the high seas include the 1884 International Convention for the Protection of Submarine Cables. Under its provisions, warships and specially authorized ships have the right to stop and inspect any merchant ship, regardless of flag, if it is suspected of violating the Convention. The commanding officer of a warship or special ship may draw up a report in such cases. However, any issues involving violations of the 1884 Convention can only be handled by the judicial institutions of the ship’s flag state.

The repeated cases of pollution on the high seas, which by its scale posed a threat to the coastal state, the international community concern about the growing threat of ecological crisis and other accompanying factors resulted in the International Convention on Intervention on the High Seas in Cases of accidents resulting in oil pollution in 1969, and in 1973 – in the Protocol on intervention on the high seas in cases of pollution with substances other than oil.

According to the 1969 Convention a coastal state has the right in exceptional cases to take on the high seas in relation to a foreign ship all necessary measures to prevent, reduce or eliminate the danger of oil pollution of the sea as a result of a maritime accident. The 1973 Protocol extended the 1969 Convention to cases of pollution or threats thereof by any other hazardous substances.

Intervention can also be carried out on the basis of acts of international organizations, which are established and act on the basis of international treaties. In this regard, the case of the Russian tanker Volgoneft-147, which violated the UN sanctions regime against Iraq, is noteworthy.

On February 2, 2000, the US cruiser Monterey, which was on watch in the Persian Gulf to enforce the Iraqi sanctions regime under UN Security Council Resolution 665, was ordered to intercept the Russian ship. It later transpired that the US reconnaissance satellite picked up the tanker in an Iraqi port and monitored it until it reached the open sea, where the Americans ordered the ship to stop. The Russian sailors refused. American commandos were boarded and the ship was inspected.

Despite claims that the ship had been loaded in an Iranian port, an analysis of the oil products showed that they were of Iraqi origin. The situation was exacerbated by the fact that the cargo was accompanied by an Iraqi naval officer. The Russian vessel was detained and escorted to the Omani port of Muscat.

According to Article 24 of the UN Charter, the Security Council has primary responsibility for the maintenance of international peace and security, with UN Member States agreeing that the Security Council acts on their behalf in carrying out its duties under this responsibility. Under Article 42, the Security Council is authorized to take such action as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockades, and other operations carried out by, inter alia, naval forces of UN members. Security Council Resolution 665 of 25 August 1990 was adopted at the 2938th meeting by 13 votes to none, with two abstentions (Cuba and Yemen). Paragraph 1 of the said resolution provided, inter alia, for measures under the control of the Security Council to “stop all maritime vessels proceeding in either direction in order to inspect and verify their cargo and ports of destination and ensure strict implementation with regard to such vessels of the provisions set forth in Resolution No. 661 (1990)”. This latter resolution imposed economic sanctions on Iraq.

Thus, from the standpoint of international law, the actions of the U.S. Navy appear legitimate.

Piracy as a ground for intervention. The plague of piracy, which seemed to have passed into oblivion, suddenly in the 1980s began to spread rapidly across the seas and oceans, and so far nothing can stop it. Modern merchant ships and cargoes worth millions of dollars are a target for pirates. Statistics confirm that piracy today is a real threat to maritime security.

In ancient times, pirates were declared “enemies of the human race” and “must be hanged first in the hands of whom they come. Until the second half of the twentieth century there was no multilateral international agreement in which states gave a universally accepted definition of piracy and coordinated the fight against it.

These issues were regulated mainly by the legislation of individual states and customary norms that had developed over the centuries.

Pursuant to Article 101 of the 1982 United Nations Convention on the Law of the Sea, piracy is any of the following acts:

(a) any unlawful act of violence, detention, or any depredation committed for personal purposes by the crew of a private ship or a private aircraft and directed

On the high seas against another vessel or against persons or property aboard it;
against a ship, persons or property in a place outside the jurisdiction of any State;
(b) any act of voluntary participation in the use of a ship in the knowledge of the circumstances on which the ship is a pirate ship;

c) any act of inciting or of intentionally facilitating an act described in subparagraphs (a) and (b).

Pirate attacks, when committed by a warship or government ship whose crew has mutinied and seized control of that ship or vessel, shall be equated with acts committed by a privately owned vessel.

The 1982 UN Convention on the Law of the Sea obligates all states to cooperate to the fullest extent possible in suppressing piracy.

On the high seas, any State may seize a pirate ship or aircraft, or a ship or aircraft seized by pirate activity and in the power of pirates, arrest the persons therein and seize the property on the ship or aircraft. The judicial authorities of the State which has carried out such seizure may order the imposition of penalties and determine what measures shall be taken with respect to such vessels, aircraft or property, without violating the rights of third parties acting in good faith. In other words, universal jurisdiction is exercised in this case.

Russian criminal law contains a provision on liability for acts of piracy. Thus, article 227 of the Criminal Code, “Piracy”, states that an attack on a ship or a vessel with the aim of seizing property, carried out with the use or threat of violence, is punishable by deprivation of liberty for a term of five to 10 years. The same act committed repeatedly or with the use of weapons or objects used as weapons shall be punished by imprisonment for a term of eight to twelve years with confiscation of property. If the acts are committed by an organized group, or if they result in an imprudent death or other grave consequences, they shall be punished by imprisonment of 10 to 15 years with confiscation of property.

Consequently, in the case of the seizure of a pirate ship by Russian military vessels or vessels of non-commercial state service, criminal prosecution of the perpetrators of such acts will be carried out in accordance with the Criminal Code of the Russian Federation. At the same time Article 227 of the Criminal Code of the Russian Federation does not specify its scope, which means that an attack on a sea or river vessel will be considered piracy, even if it is in a port of the state, which is completely wrong. After all, here will not be exercised universal jurisdiction, but only the jurisdiction of the coastal state, and such an attack will not be piracy, but an act of maritime robbery, punishable only by that state.

Another ground for intervention on the high seas is the suspicion that a ship is engaged in the slave trade. In modern times, when the slave trade at sea has faded into oblivion, the indicated ground for intervention is more a tribute to history and is hardly of practical interest for analysis.

Unauthorized broadcasting from the high seas is the transmission, in violation of international rules, of sound, radio or television programs from a ship or installation on the high seas intended for reception by the public, excluding distress signals.

Although under Article 109 of the 1982 Convention all states shall cooperate in suppressing unauthorized broadcasting from the high seas, intervention in case of unauthorized broadcasting is limited to a certain circle. Such states may be:

The flag state of the vessel;
the state of registration of the installation;
The State of nationality of the person making the unauthorized broadcast;
The state where the transmissions may be received;
The State whose authorized communication is being interfered with.
It should be noted that any of the above states has the right to arrest the person or vessel engaged in unauthorized broadcasting and to confiscate the transmitting equipment.

Interference on the high seas may also be carried out against a vessel that has no nationality, or if the vessel is flying a foreign flag or refuses to fly a flag, but in fact the vessel has the same nationality as the inspecting ship. It is noteworthy that in both cases, if the suspicion proves valid, the ship, for obvious reasons, can no longer be subject to the principle of exclusive jurisdiction of the flag State.

One of the oldest institutes of international maritime law – the right of hot pursuit – provides that a ship which has committed an offence in foreign internal waters, territorial sea or contiguous zone (only for cases for which contiguous zone is established) may be pursued on the high seas, seized and taken to a port for action in accordance with the law of the State in whose waters the offence was committed. This provision was enshrined in the 1958 Convention on the High Seas. The 1982 Convention expanded the areas in which prosecution can be initiated to include archipelagic waters and the exclusive economic zone.

In addition, the 1982 Convention extended the right of pursuit to foreign ships violating the laws and regulations of the coastal state with respect to the continental shelf, including the safety zones around installations on it.

Pursuit can be carried out only in connection with violation of laws and rules established in a particular maritime space. Thus, if a foreign ship is in the contiguous zone, prosecution may be initiated only for a violation of the rights for the protection of which that zone has been established.

Pursuit may be commenced only after the signal to stop, whether visual or audible, has been given, from a distance allowing the foreign vessel to see or hear the signal.

Related to the issue of the initial moment of pursuit is the so-called doctrine of the implied presence of a vessel within a maritime space, according to which, for example, if a vessel is on the high seas but communicates with the shore by means of boats, it is considered to be in the internal waters of the coastal State, with all the ensuing consequences.

The most typical case of application of this doctrine was the decision of the Russian authorities in 1888 in the case of the Canadian schooner “Araunah” detained outside territorial waters in the Bering Sea.

Although the schooner was on the high seas, its crew were hunting for seals half a mile off the Russian coast. The vessel was seized and confiscated in accordance with Russian law.

Similar practices have been followed by other states. Thus, in 1922 the Massachusetts court ruled that the U.S. authorities lawfully detained the British vessel Grace Ruby. The ship was out of the territorial sea, four miles from shore, but its crew members were illegally transporting smuggled liquor to shore using dinghies.

A prerequisite for hot pursuit on the high seas is that the pursuit must be continuous. The pursuing ship may not stop pursuit and then resume it on the high seas. Continuity of pursuit should not be understood in the sense that the pursuing ship must keep the offending ship in sight at all times. It is important that the loss of contact with the intruder (visual, radar) would not be excessively long and the distance would be significant, making it impossible to detain the vessel.

Continuity of pursuit also does not exclude replacement of one pursuing ship or aircraft by another.

Finally, pursuit must cease as soon as the pursued ship enters the territorial sea of its own or a third State.

The case of Panama’s “Imia” is the most typical of the recent practice of Russian authorities in exercising the right of pursuit.

During the night of 25-26 December, 1996, the Panamanian freighter “Imia”, which was in the outer roads of Novorossiysk port being under arrest, broke its anchor under the cover of night and tried to sail to the high seas. Pilot-officer of Novorossiysk Port Administration ship traffic service detected unauthorized vessel’s movement on the radar display and inquired about its intentions. The vessel’s captain explained his actions by his desire to change anchorage, but the actual movement of the vessel indicated that it was leaving for the open sea. The pilot-operator informed the border guards.

The vessel did not respond to demands to stop, transmitted from the shore by radio and searchlight signals. The pursuit was begun by a border guard ship. Catching up with the ship and making sure the captain’s intentions had not changed – the ship continued sailing out to the open sea and did not contact them, the border guard opened warning fire. But that did not stop the boat either. After that, the border guards started shooting to kill the bow of the ship. The “Imia” immediately went adrift and negotiations began. The captain refused to return to port, and his further actions defied logical explanation: the ship set sail again and began to head out into the open sea.

The border guards were again forced to open fire to kill.

Only then did the captain comply with the border guards’ demands and, under their escort, the offending vessel was returned to port.

The actions of the border guards were deemed lawful.

The investigation showed that the captain was aware of the consequences of his actions, but hoped the ship could escape, as the Maltese timber boat “Elbilly-1” had done shortly before, which during stormy weather “escaped” from the outer roads of Novorossiysk without passing through customs and border formalities. The ship was pursued as far as the Turkish territorial sea, but was unsuccessful. The ship got away.

In recent years, practice shows that only shoot-to-kill attempts to stop pursuit have stopped the intruders.

In all cases, use of fire by Russian border guards is considered justified under international law and the only way to stop the violator.

The provisions of Article 108 of the 1982 Convention, which establishes that States shall cooperate in suppressing drug trafficking and any State that has reasonable grounds to believe that a vessel flying its flag is engaged in illicit trafficking in drugs or psychotropic substances may ask other States to cooperate in suppressing such illicit trafficking, should be considered very weak and vague and require at least clarification. It would seem that if there is every reason to believe that a ship is engaged in trafficking in narcotics and psychotropic substances, that circumstance should be grounds for intervention on the high seas. In today’s context, where non-medical use of, widespread trade in and smuggling of narcotic drugs have become a global disaster, tougher and more determined international action is needed to combat this scourge.

International Seabed Area (Area). Modern technology makes it possible to extract minerals not only on the continental shelf, but also beyond it at great depths.

The 1982 United Nations Convention on the Law of the Sea (Part XI) regulates the legal regime of the seabed beyond the limits of national jurisdiction, which in accordance with Article 1 is called the Area.

The Area and its resources are the common heritage of mankind.

No State may claim or exercise sovereignty or sovereign rights over any part of the Area and its resources, nor may any State, person or entity appropriate any part thereof.

No such claim or exercise of sovereignty or sovereign rights and no such appropriation shall be recognized.

All rights in the resources of the Area shall belong to all mankind, on whose behalf the Authority acts. These resources are not subject to alienation. Minerals produced in the Area may, however, be alienated, but only in accordance with the provisions of the 1982 Convention and the rules, regulations and procedures of the Authority.

Activities in the Area shall be carried out for the benefit of mankind as a whole, irrespective of the geographical location of States and peoples which have not attained full independence or other status of self-government recognized by the United Nations.

The Authority shall ensure the equitable distribution of financial and other economic benefits derived from activities in the Area on a nondiscriminatory basis.

The Area shall be open for exclusively peaceful purposes by all States, whether coastal or landlocked.

Activities in the Area shall be organized, carried out and controlled by the Authority on behalf of all mankind.

All States parties to the 1982 Convention are ipso facto members of the Authority. The seat of the Authority is Jamaica. The Authority may establish such regional centers or offices as it deems necessary for the performance of its functions. An Assembly, a Council and a Secretariat are established as the principal organs of the Authority.

The Assembly is composed of all members of the Authority. Each member has one representative in the Assembly. The Assembly shall meet in regular annual sessions and in special sessions which the Assembly may decide to convene or which may be convened by the Secretary-General at the request of the Council or a majority of the members of the Authority.

A majority of the members of the Assembly shall constitute a quorum. Each member of the Assembly shall have one vote.

The Council shall consist of 36 members of the Authority elected by the Assembly. The Council shall exercise its functions at the seat of the Authority and shall meet as often as the affairs of the Authority may require, but not less frequently than three per year. A majority of the members of the Council shall constitute a quorum. Each member of the Council shall have one vote.

The Council shall be the executive body of the Authority. The Board shall have the power to determine what specific policies the Authority should pursue on any matter or issue within the Authority’s jurisdiction.