The Commentary Of The Freedom Of The High Sea

THE COMMENTARY OF THE FREEDOM OF THE HIGH SEAS INTRODUCTION The beginning of regulation of the high seas can be founded in the Geneva Conventions (The High Seas Convention) which it results from United Nations Conferences of The Law of The Sea at 24 February – 2 April 1958. In article 1 of the Geneva Conventions 1958 gave interpretation of the high seas which stated: “the term high seas mean all parts of the sea that are not included in the territorial sea or in the internal waters of a state”. The Convention 1958 also gave four examples of the freedom of the high seas: the freedom of navigation, fishing, laying of submarine cables and pipelines, and over flight. However, The Geneva Convention is not invalid, because there is a new convention that United Nations Conventions of Law of Sea 1982. The conventions of law of sea 1982 in article 86 provided for meaning of the high sea that: the provisions of this part apply to 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. This is different meaning of the high sea in The High Seas Convention 1958 and the Convention of law of sea 1982. The High Seas Convention determined the high seas are 3 miles from territorial water. Whereas The Convention of law of sea 1982 stated that the high seas starts form outer lines of exclusive economic zone meaning that it is started from 200 miles which is measured from the baselines. FREEDOM OF THE HIGH SEA Article 87 stated that the high seas are open to all States, whether coastal or landlocked. All State can enjoy freedom of the high seas, such as: a) Freedom of navigation; b) Freedom of over flight; c) Freedom to lay submarine cables and pipelines d) Freedom to construct artificial and other installations permitted under international law; e) Freedom of fishing; f) Freedom of scientific research.

Freedom of the high seas must observe of interest of the other states in implementing it, because implementation of freedom of the high seas have peaceful purpose and State cannot implement full sovereignty in the high seas which have stated in the UNCLOS article 88 which stated that “The high seas shall be reserved for peaceful purposes” and article 89 stated that: “No State may validly purport to subject any part of the high seas to its sovereignty”. Every ship which is passage in the high seas must show of the nationality, because they have genuine link between ship and State. If the ship which sails under the flags of two or more States using flag of convenience may be assimilated to a ship without nationality. From the concept of freedom of the high seas which is explained above, we can be divided into two groups for applying in the high seas. First group relates to freedom of use of the high seas and the second group is the exceptions of the exclusiveness of flag state jurisdiction. The kids of freedom of the high seas are freedom of navigation, freedom of over Freedom of over flight, Freedom to lay submarine cables and pipelines, Freedom to construct artificial and other installations permitted under international law, Freedom of fishing, and Freedom of scientific research. Whereas the exceptions of the exclusiveness of flag state jurisdiction are piracy, unauthorized broadcasting, slave trading, drug trafficking, ship of uncertain nationality, stateless ships, hot pursuit and constructive presence and major pollution incidents. The principles in the high seas are regulated in article 87 United Nation Convention on The Law of The Sea. The principles are freedom meaning that every state either coastal states, archipelagic states or land lock states can enjoy in the high seas. However, the freedom is not mean freedom without bind or regulation. It means that if the states want to explore or to fish in the high seas, they must join regional agreement with states which are close to the high seas. The provisions which

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international organization are article 63, 64, 116 and 120 the law of the sea convention. Article 63 have mean that the coastal state or state fishing must conduct ensure the conservation and development of such stocks through appropriate sub regional or regional organizations.

Article 64 stated that The coastal State and

other State whose nationals fish in the region for the highly migratory species listed

in Annex I shall co-operate directly or through appropriate international organization with a view to ensuring conservation and promoting the objective of optimum utilization of such species throughout the region, both within and beyond the exclusive economic zone. In regions for which no appropriate international organization exists, the costal State and other States whose nationals harvest these species in the region shall co-operate to establish such and organization and participate in its work. It means that shall there is regional convention to implement these provisions. In article 116 also regulates it where all States have right for their nationals to engage in fishing on the high seas subject to their treaty obligations, the rights and duties as well as the interest of coastal States provided for, inter alia, in article 63, paragraph 2,and articles 64 to 67. For example, Indonesia fisherman fishes in the India Ocean, They cannot do it, because until now, Indonesia has not join The Regional Convention yet.

The

similar case is that the fisherman also cannot fish at the South Pacific Ocean. It means that all states must join within The Regional Conventions. This regulate is not restriction freedom of the high seas. Otherwise that it has aim to conservation and development of such stocks. Freedom of navigation and freedom of over flight are not seriously problems as long as the ship shows nationality of ships. Regulation of nationality of ships is regulated in article 90 – 96 of law of sea conventions. One ships of state must have one flag of State only. It means that ships cannot have one or more flag of state as long as sail in the high seas. Because it has influence of navigate in order not to be confuse of other ships. Thus, ships flying its flag have duty are maintain a register of ships, assume jurisdiction under its internal law and ensure safety at sea with regard to the construction, equipment and seaworthiness of ships, the manning of ships, labor conditions and the training of crews, taking into account the applicable internationals instruments, the use of signals, the maintenance of communications and the prevention of collisions. (Article 94 LOSC). Therefore, every state have right of navigation. The right of navigation besides in the high seas also it has in the territorial water zone which is called innocent passage. It is different rule when the ship navigates through internal water and high seas. In the internal water, the ship must passage continuously and expeditious. Whereas in the high seas, the ship can passage for free but it must subject to article 94 the law of the sea convention.

The second group is concern the exceptions of the exclusiveness of flag state jurisdiction. It means that the exclusiveness of the flag State’s jurisdiction is not absolute. It admits of several exceptions such as piracy, unauthorized broadcasting, slave trading, drug trafficking, ship of uncertain nationality, stateless ships, hot pursuit and constructive presence and major pollution incidents. The

exception

arose as prevention of abuse of freedom in the high seas. Every State or everyone which sail in the high seas can act anything in the high seas. Therefore, All State must save security in the high seas. The first exception is piracy which every State has responsible and to act against piracy. Piracy includes any illegal act of violence, detention or depredation committed for private ends by the crew or passengers of private ship against another ship or persons or property on board it, on (or over) the high seas. The definition of piracy can be read completely in article 101 Law of the Sea Convention which states that: (a) Any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed: (i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft; (ii) against a ship, aircraft, person or property in a place outside the jurisdiction of any State; (a) Any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft; (b) Any act inciting or of intentionally facilitating an act described in sub paragraph (a) or (b). For example according to the International Maritime Bureau (IMB) in 2004, piracy is occurred in the water of Southeast Asia which a total 43 crew members were kidnapped by pirates, of which 36 were taken hostage in the straits of Malacca.1 It means piracy did not happen in the high seas but it can be happened in Straits or other zone of maritime which pirate likes do it.

1 Kwa Chong Guan and John K. Skogan, ed. Maritime Security in Southeast Asia. Routledge New York. US p. 62

Piracy can be acted by ship or aircraft or both of them, so long it remains under the control of the pirate. Article 103 state completely that “A ship aircraft is considered a pirate ship or aircraft if it is intended by the persons dominant control to be used for purpose of committing one of the acts referred to in article 101. The same applies if the ship or aircraft has been used to commit any such acts, so long it remains under the control of the persons guilty of that act.” Besides that in the high seas can be happened terrorism. We often hear the terrorism discourse. Terrorist can do all everything want to do it. We must remember September 11 where the terrorist act terror through airplane. In the event, many people death as terror. Thus, Can terrorism happen in the high seas? Terrorism can happen in the everywhere. Although terrorism course is not regulated by International law, however, terrorism course has been to be discourse in the world. Therefore every state should increase maritime security and co-operate against piracy, terrorism, illicit traffic in narcotic drugs or psychotropic substances and unauthorized broadcasting in the high seas. In any other place outside the jurisdiction of any State may seize a pirate ship or aircraft, or ship or aircraft taken by piracy and under the control of pirates.

THE JURISDICTION OF STATE IN HIGH SEAS Article 94 UNCLOS 1982 stated that: “Every State shall effectively its jurisdiction and control in administrative, technical and social matter over ships flying its flag”. In other hand, every state have duty and responsibility toward administrative of its ship.

In particular every States shall: maintain a register of ship containing the

names and particular of ships flying its flag, except those which excluded from generally accepted international regulations on account of their small size; and assume jurisdiction under its internal law over each ship flying its flag and its master, officers and crew in respect of administrative, technical and social matters concerning the ship. In the high seas, warships and ships owned or operated by State and used only on government non-commercial have immunity from the jurisdiction of any State other than the flag State. We can read article 95 and 96 The Law of Sea Convention which states that “Warship on the high seas have complete immunity

from the jurisdiction of any State other than the flag State” and “Ships owned or operated by a State and used only on government non-commercial service shall, on the high seas, have complete immunity from the jurisdiction of any State other than the flag State. Conclusion 1. The mean of the freedom of the high seas is that all states can do all activities, however they must subject to the International conventions and Regional agreements. These regulations have aim to protect to the high seas from maritime pollution, terrorism, and so on. 2. Every state must cooperate against piracy and terrorism in the high seas. 3. Every state should act and ensure conservation in the maritime.