Under Article 110[1] of UNCLOS warships can on the high seas board another
vessel if that vessel is without nationality or failing to show its flag. A vessel can also
not change its flag during a voyage or at a port unless it has carried out a transfer of
ownership or has been re-registered in an appropriate registry.
27
The Judicial Committee of the Privy Council in the case of the m.v. Asya, a ship
with illegal immigrants on board was sighted by a British naval vessel outside
Palestinian territorial waters while it was flying no flag. The ship was escorted to a
Palestinian port where an application for forfeiture of the ship was granted by the
District Court of Haifa. The decision was upheld by the Supreme Court of Palestine
whereupon the owner appealed to the Privy Council. In determining whether the
forfeiture of the vessel to the state of Palestine was lawful, the Privy Council stated
per Lord Simonds: “To satisfy this test the appellant has invoked the doctrine which
is called “the freedom of the open sea” alleging that under the shield of that—
doctrine the Asya was entitled to, whatever the mission, the right to sail the open sea
off the coast of Palestine. Their Lordships cannot assent to the proposition that any
such right, unqualified by place or circumstance, is established by International law”.
They add “For the freedom of the open sea, whatever those words may connote, is a
freedom of ships which fly and are entitled to fly the flag of a State which is within
the comity of nations. The Asya did not satisfy these elementary conditions. No
question of comity nor of any breach of international law can arise if there is no state
under whose flag the vessel sails”.
Where a coastal State or for that matter any state grants its flag to a vessel, the
vessel assumes its nationality and hence there must be a genuine link between the
flag State and the vessel.
28 As indicated earlier, the coastal State’s right of hot pursuit
for infringement of its laws ceases when the vessel being pursued enters into the
territorial waters of another state. International law frowns upon use of excessive
force during hot pursuit as pointed out in the case of The I’ m Alone. Here a British
ship registered in Canada but which was controlled and managed by citizens of the
United States was sunk by the U.S Coast Guard. The ship which was suspected of
smuggling liquor into the United States was ordered to stop outside U.S territorial
waters of 3 nautical miles but declined. The I’ m Alone was then pursued by the
Walcott and after two days joined by the Dexter which eventually fired shots into the
hull and sunk the I’ m Alone leading to the death of one crew member while the rest
were rescued.
Upon adjudication under an Agreement between Canada and the U.S the tribunal
ruled that the sinking was illegal and the US was directed to pay damages to Canada.
27 The Asya case, cited as Naim Molvan v. Attorney-General for Palestine (Asya Case), 1948 App
Cas 351 (P. C.), 81 LI. L. Rep. 277.
28 UNCLOS Article 91. It is however not clear what is meant by “genuine link” as the Convention
does not explain it. See also the United Nations Convention on Conditions for the Registration of
Ships 1986 which incidentally did not garner sufficient ratifications to enable its entry into force.
504
E. K. Mbiah
vessel if that vessel is without nationality or failing to show its flag. A vessel can also
not change its flag during a voyage or at a port unless it has carried out a transfer of
ownership or has been re-registered in an appropriate registry.
27
The Judicial Committee of the Privy Council in the case of the m.v. Asya, a ship
with illegal immigrants on board was sighted by a British naval vessel outside
Palestinian territorial waters while it was flying no flag. The ship was escorted to a
Palestinian port where an application for forfeiture of the ship was granted by the
District Court of Haifa. The decision was upheld by the Supreme Court of Palestine
whereupon the owner appealed to the Privy Council. In determining whether the
forfeiture of the vessel to the state of Palestine was lawful, the Privy Council stated
per Lord Simonds: “To satisfy this test the appellant has invoked the doctrine which
is called “the freedom of the open sea” alleging that under the shield of that—
doctrine the Asya was entitled to, whatever the mission, the right to sail the open sea
off the coast of Palestine. Their Lordships cannot assent to the proposition that any
such right, unqualified by place or circumstance, is established by International law”.
They add “For the freedom of the open sea, whatever those words may connote, is a
freedom of ships which fly and are entitled to fly the flag of a State which is within
the comity of nations. The Asya did not satisfy these elementary conditions. No
question of comity nor of any breach of international law can arise if there is no state
under whose flag the vessel sails”.
Where a coastal State or for that matter any state grants its flag to a vessel, the
vessel assumes its nationality and hence there must be a genuine link between the
flag State and the vessel.
28 As indicated earlier, the coastal State’s right of hot pursuit
for infringement of its laws ceases when the vessel being pursued enters into the
territorial waters of another state. International law frowns upon use of excessive
force during hot pursuit as pointed out in the case of The I’ m Alone. Here a British
ship registered in Canada but which was controlled and managed by citizens of the
United States was sunk by the U.S Coast Guard. The ship which was suspected of
smuggling liquor into the United States was ordered to stop outside U.S territorial
waters of 3 nautical miles but declined. The I’ m Alone was then pursued by the
Walcott and after two days joined by the Dexter which eventually fired shots into the
hull and sunk the I’ m Alone leading to the death of one crew member while the rest
were rescued.
Upon adjudication under an Agreement between Canada and the U.S the tribunal
ruled that the sinking was illegal and the US was directed to pay damages to Canada.
27 The Asya case, cited as Naim Molvan v. Attorney-General for Palestine (Asya Case), 1948 App
Cas 351 (P. C.), 81 LI. L. Rep. 277.
28 UNCLOS Article 91. It is however not clear what is meant by “genuine link” as the Convention
does not explain it. See also the United Nations Convention on Conditions for the Registration of
Ships 1986 which incidentally did not garner sufficient ratifications to enable its entry into force.
504
E. K. Mbiah