6 Maritime Counter-Proliferation of Weapons …
99
their passage on the high seas, has a right and an obligation to regulate them for
maritime safety (Arts. 90 and 94). To guarantee the freedom of navigation as a
significant component of the order of the high seas, the flag state has the sole power
to exercise jurisdiction to ships on the high seas, and this has been considered the
most appropriate system. This is because it is reasonable that laws and regulations
of a particular state should be applied to events for ships sailing on various seas.
This idea is called as the principle of the flag state and ships sail under the flag of
only one state and are subject to its exclusive jurisdiction on the high seas (Art. 92,
para. 1).
10 Accordingly, the principle of flag state is based on the freedom of the high
seas, especially on the freedom of navigation in the contemporary context, which is
different from the idea in the past that regarded ships as a ‘floating territory’.
11
Subsequently, if a government ship exercises its jurisdiction over a foreign ship
without authorisation of its flag state, this is a violation against the freedom of the
high seas. Problems arise because of the size of the high seas, and large sections have
no territorial jurisdiction of any state. This then means that the control of the flag
state is insufficient for regulating ships engaged in unlawful acts of piracy, the slave
trade, and unauthorised broadcasting. To fill this gap, warships are exceptionally
justified in boarding a foreign ship as a right of visit, if there is reasonable ground
for suspecting unlawful acts (Art. 110, para. 1)
12 :
(a) the ship is engaged in piracy,
(b) the ship is engaged in the slave trade,
(c) the ship is engaged in unauthorized broadcasting,
(d) the ship is without nationality,
(e) the ship is, in reality, of the same nationality as the warship.
A warship can also proceed to verify the ship’s right to fly its flag. If suspicion
remains after the ship’s documents have been verified, it may proceed to a further
examination on board the ship (para. 2). Additionally, in the case that the suspicion
proves to be unfounded, and provided that the ship boarded has not committed any act
to justify the acts of the warship, the ship will be compensated for any loss or damage
that may have been sustained (para. 3). Thus, the right of visit can be formulated as
a maritime police activity to determine unlawful acts of ships on the high seas by
verifying if the flag ship is flying with its correct nationality.
13
The interests of the navigation of ships on the high seas are strictly protected to
the extent that a foreign warship cannot enjoy the right of visit to foreign ships, and,
even if allowed, it can exercise its control only over the limited matters mentioned
10 Ibid., pp. 152–153.
11 J. Tsuruta, “Revised SUA Convention and its Implementation in Japan—With Reference to
‘Ship Inspection Procedure’ and ‘Transport of WMD and its Material’ (Kaisei SUA Joyaku To
Sono Nihon Niokeru Jisshi—‘Senpaku Kensa Tetsuzuki’ To ‘Tairyo Hakai Heiki Tou No Yuso’ Ni
Chakumokushite’)”, T. Kuribayashi and T. Sugihara (eds.), The Law of the Sea and Japan (Nihon
Niokeru Kaiyoho No Shuyo Kadai), p. 134 (in Japanese).
12 Japan Maritime Promotion Center and Study Group of International Maritime Matters, supra note
6, pp. 90–91.
13 Tanaka, supra note 9, pp. 159–160.
99
their passage on the high seas, has a right and an obligation to regulate them for
maritime safety (Arts. 90 and 94). To guarantee the freedom of navigation as a
significant component of the order of the high seas, the flag state has the sole power
to exercise jurisdiction to ships on the high seas, and this has been considered the
most appropriate system. This is because it is reasonable that laws and regulations
of a particular state should be applied to events for ships sailing on various seas.
This idea is called as the principle of the flag state and ships sail under the flag of
only one state and are subject to its exclusive jurisdiction on the high seas (Art. 92,
para. 1).
10 Accordingly, the principle of flag state is based on the freedom of the high
seas, especially on the freedom of navigation in the contemporary context, which is
different from the idea in the past that regarded ships as a ‘floating territory’.
11
Subsequently, if a government ship exercises its jurisdiction over a foreign ship
without authorisation of its flag state, this is a violation against the freedom of the
high seas. Problems arise because of the size of the high seas, and large sections have
no territorial jurisdiction of any state. This then means that the control of the flag
state is insufficient for regulating ships engaged in unlawful acts of piracy, the slave
trade, and unauthorised broadcasting. To fill this gap, warships are exceptionally
justified in boarding a foreign ship as a right of visit, if there is reasonable ground
for suspecting unlawful acts (Art. 110, para. 1)
12 :
(a) the ship is engaged in piracy,
(b) the ship is engaged in the slave trade,
(c) the ship is engaged in unauthorized broadcasting,
(d) the ship is without nationality,
(e) the ship is, in reality, of the same nationality as the warship.
A warship can also proceed to verify the ship’s right to fly its flag. If suspicion
remains after the ship’s documents have been verified, it may proceed to a further
examination on board the ship (para. 2). Additionally, in the case that the suspicion
proves to be unfounded, and provided that the ship boarded has not committed any act
to justify the acts of the warship, the ship will be compensated for any loss or damage
that may have been sustained (para. 3). Thus, the right of visit can be formulated as
a maritime police activity to determine unlawful acts of ships on the high seas by
verifying if the flag ship is flying with its correct nationality.
13
The interests of the navigation of ships on the high seas are strictly protected to
the extent that a foreign warship cannot enjoy the right of visit to foreign ships, and,
even if allowed, it can exercise its control only over the limited matters mentioned
10 Ibid., pp. 152–153.
11 J. Tsuruta, “Revised SUA Convention and its Implementation in Japan—With Reference to
‘Ship Inspection Procedure’ and ‘Transport of WMD and its Material’ (Kaisei SUA Joyaku To
Sono Nihon Niokeru Jisshi—‘Senpaku Kensa Tetsuzuki’ To ‘Tairyo Hakai Heiki Tou No Yuso’ Ni
Chakumokushite’)”, T. Kuribayashi and T. Sugihara (eds.), The Law of the Sea and Japan (Nihon
Niokeru Kaiyoho No Shuyo Kadai), p. 134 (in Japanese).
12 Japan Maritime Promotion Center and Study Group of International Maritime Matters, supra note
6, pp. 90–91.
13 Tanaka, supra note 9, pp. 159–160.