(i) navigation and overflight.
(ii) freedom to lay sub-marine cables and pipelines
(iii) to construct artificial Islands and other installations permitted under international law,
(iv) to fish and
(v) to engage in marine scientific research.
In the spirit of the high seas being the common heritage of mankind, UNCLOS
provides that the high seas “shall be reserved for peaceful purposes.”
22 In effect, “no
State may validly purport to subject any part of the high seas to its sovereignty”
23
Within the framework of the common heritage and freedom of the seas, “every State
whether coastal or landlocked, has the right to sail ships flying its flag on the high
seas.
24 This provision establishes the right to navigation on the high seas by all States
and with that establishes the very important concept of exclusive jurisdiction of the
flag State on the high seas.
The jurisdictional reach of the coastal State does not extend to the high seas
except where there is a criminal act committed by a national of the coastal State in
which case the coastal State may exercise jurisdiction concurrently with the flag
State. Thus, if an offence is committed on board a vessel, it is the flag state which has
jurisdiction to institute proceedings. Article 97 provides that “no arrest or detention
of the ship even as a measure of investigation shall be ordered by any authorities
other than those of the flag State”. Even though the exclusive jurisdiction of the flag
State is entrenched in international maritime law, there are exceptions that would
enable the coastal State have jurisdiction in offences committed on the High Seas.
The coastal State would have jurisdiction if it has reasonable grounds to suspect that
a vessel is engaged in piracy (hostis humanis generis), slave trade, unauthorized
broadcasting or if it has reasonable suspicion that the vessel is without nationality.
25
Furthermore, by virtue of Article 111 of UNCLOS the coastal State, where it has
good reason to believe that a ship has violated the laws and regulations of the coastal
State may engage in hot pursuit. It is however important to note that the hot pursuit
may only be undertaken when the foreign ship is within the territorial sea or
contiguous zone of the coastal State and may continue outside of those waters if
the pursuit is uninterrupted. The coastal State may also exercise the right of hot
pursuit in the exclusive economic zone mutatis mutandis. On the high seas, there is
freedom of navigation for all vessels subject only to the exclusive jurisdiction of flag
State.
26 In recent times, some countries have had cause to report to the International
Maritime Organization (IMO) incidences of flag theft whereby vessels not registered
under their jurisdiction have been using their flags. IMO is thus taking steps to curb
this creeping menace.
22 UNCLOS Article 88.
23 UNCLOS Article 89.
24 UNCLOS Article 90.
25 UNCLOS Article 120.
26 UNCLOS Article 87.
Coastal, Flag and Port State Jurisdictions: Powers and Other. . .
503
(ii) freedom to lay sub-marine cables and pipelines
(iii) to construct artificial Islands and other installations permitted under international law,
(iv) to fish and
(v) to engage in marine scientific research.
In the spirit of the high seas being the common heritage of mankind, UNCLOS
provides that the high seas “shall be reserved for peaceful purposes.”
22 In effect, “no
State may validly purport to subject any part of the high seas to its sovereignty”
23
Within the framework of the common heritage and freedom of the seas, “every State
whether coastal or landlocked, has the right to sail ships flying its flag on the high
seas.
24 This provision establishes the right to navigation on the high seas by all States
and with that establishes the very important concept of exclusive jurisdiction of the
flag State on the high seas.
The jurisdictional reach of the coastal State does not extend to the high seas
except where there is a criminal act committed by a national of the coastal State in
which case the coastal State may exercise jurisdiction concurrently with the flag
State. Thus, if an offence is committed on board a vessel, it is the flag state which has
jurisdiction to institute proceedings. Article 97 provides that “no arrest or detention
of the ship even as a measure of investigation shall be ordered by any authorities
other than those of the flag State”. Even though the exclusive jurisdiction of the flag
State is entrenched in international maritime law, there are exceptions that would
enable the coastal State have jurisdiction in offences committed on the High Seas.
The coastal State would have jurisdiction if it has reasonable grounds to suspect that
a vessel is engaged in piracy (hostis humanis generis), slave trade, unauthorized
broadcasting or if it has reasonable suspicion that the vessel is without nationality.
25
Furthermore, by virtue of Article 111 of UNCLOS the coastal State, where it has
good reason to believe that a ship has violated the laws and regulations of the coastal
State may engage in hot pursuit. It is however important to note that the hot pursuit
may only be undertaken when the foreign ship is within the territorial sea or
contiguous zone of the coastal State and may continue outside of those waters if
the pursuit is uninterrupted. The coastal State may also exercise the right of hot
pursuit in the exclusive economic zone mutatis mutandis. On the high seas, there is
freedom of navigation for all vessels subject only to the exclusive jurisdiction of flag
State.
26 In recent times, some countries have had cause to report to the International
Maritime Organization (IMO) incidences of flag theft whereby vessels not registered
under their jurisdiction have been using their flags. IMO is thus taking steps to curb
this creeping menace.
22 UNCLOS Article 88.
23 UNCLOS Article 89.
24 UNCLOS Article 90.
25 UNCLOS Article 120.
26 UNCLOS Article 87.
Coastal, Flag and Port State Jurisdictions: Powers and Other. . .
503