2.12 Concluding Remarks
It is clear from the discussion above that the hitherto free seas concept very much
unfettered in the realm of the maritime commons has yielded largely and indeed
positively to a fettered regime reflective of the commons as a common heritage of
mankind. In the years leading to the enunciation of UNCLOS, the freedom of the
seas reigned supreme. It is however clear that with the coming into force of the
UNCLOS, the powers of the coastal State have increased even though the freedom of
navigation which is the paramount reason for the assertion of freedom of the seas has
been largely maintained. This was at the heart of the delicate balance that the Third
UN Conference on the Law of the Sea sought to achieve.
Now the coastal State has substantial powers with respect to an increased space of
territorial sea and limited rights over a 200 nautical mile stretch including rights over
the resources in its continental shelf. The coastal State’s powers to legislate with
respect to certain areas of the sea, to assume jurisdiction and to exercise responsibility for pollution is now immense. While the coastal State’s powers in this regard
has increased, there nevertheless is established by the convention a fair balance
between rights and responsibilities as well as the need to keep the seas open for
navigation, the laying of sub-marine cables and marine scientific research. This
complements the extensive rights of all states, Landlocked, geographically disadvantaged or otherwise provided by the regime of the high seas.
3 The Flag State
3.1 Preliminary Observations
As stated by one commentator:
Symbols are sacred things, and one of the chief that every man holds dear is the national flag.
Deep down in our nature is the strong emotion that swells the heart and brings the tear and
makes us follow the flag and die around it rather than let it fall into the hands of an enemy.
This is no new emotion, no growth of a few generations, but an inheritance from ages before
history began.
51
From very early times, the flag, a symbol of nationhood, has served as a means of
identity for ships and has thus provided them with their nationality. It is from that
nation which provides it nationality that—it derives its legal status, for it is bound by
laws of that nation with respect to its registration and operations. As with individuals, so is the ship, once it takes on the nationality of the state of registry. Nationality
comes with rights and responsibilities as pointed out by the ICJ in the Nottebohm
Case. The Court in that case reasoned that “[N]-tionality is a legal bond having its
51 Gordon (1915).
510
E. K. Mbiah
It is clear from the discussion above that the hitherto free seas concept very much
unfettered in the realm of the maritime commons has yielded largely and indeed
positively to a fettered regime reflective of the commons as a common heritage of
mankind. In the years leading to the enunciation of UNCLOS, the freedom of the
seas reigned supreme. It is however clear that with the coming into force of the
UNCLOS, the powers of the coastal State have increased even though the freedom of
navigation which is the paramount reason for the assertion of freedom of the seas has
been largely maintained. This was at the heart of the delicate balance that the Third
UN Conference on the Law of the Sea sought to achieve.
Now the coastal State has substantial powers with respect to an increased space of
territorial sea and limited rights over a 200 nautical mile stretch including rights over
the resources in its continental shelf. The coastal State’s powers to legislate with
respect to certain areas of the sea, to assume jurisdiction and to exercise responsibility for pollution is now immense. While the coastal State’s powers in this regard
has increased, there nevertheless is established by the convention a fair balance
between rights and responsibilities as well as the need to keep the seas open for
navigation, the laying of sub-marine cables and marine scientific research. This
complements the extensive rights of all states, Landlocked, geographically disadvantaged or otherwise provided by the regime of the high seas.
3 The Flag State
3.1 Preliminary Observations
As stated by one commentator:
Symbols are sacred things, and one of the chief that every man holds dear is the national flag.
Deep down in our nature is the strong emotion that swells the heart and brings the tear and
makes us follow the flag and die around it rather than let it fall into the hands of an enemy.
This is no new emotion, no growth of a few generations, but an inheritance from ages before
history began.
51
From very early times, the flag, a symbol of nationhood, has served as a means of
identity for ships and has thus provided them with their nationality. It is from that
nation which provides it nationality that—it derives its legal status, for it is bound by
laws of that nation with respect to its registration and operations. As with individuals, so is the ship, once it takes on the nationality of the state of registry. Nationality
comes with rights and responsibilities as pointed out by the ICJ in the Nottebohm
Case. The Court in that case reasoned that “[N]-tionality is a legal bond having its
51 Gordon (1915).
510
E. K. Mbiah