Exceptions to the Exclusive Jurisdiction of the Flag State on the law of the sea and customary international law

(1): The Right of Visit

(a) General Considerations
The principle of the exclusive jurisdiction of the flag State applies to warships as well as ships used only on government non-commercial service without any exception. This is clear from Articles 95 and 96 of the LOSC. On the other hand, private ships are subject to two types of exception.
The first exception involves the right of visit. The right of visit is exercised by a warship or a military aircraft in order to intercept foreign vessels on the high seas pursuant to Article 110 In essence, the right of visit seeks to reinforce an international order on the high seas.
The second exception concerns the right of hot pursuit. The hot pursuit of a foreign ship may be undertaken by the competent authorities of the coastal State by virtue of Article 111. As the Annex VII Arbitral Tribunal stated in the Arctic Sunrise Arbitration, the right of hot pursuit serves to prevent foreign ships that have violated the laws and regulations of a coastal State from evading responsibility by fleeing to the high seas. In so doing, the right of hot pursuit seeks to safeguard the interests of coastal States. It will be appropriate to commence our consideration with the right of visit.
The right of visit is provided in Article 110(1) of the LOSC as follows:
Except where acts of interference derive from powers conferred by treaty, a warship which encounters on the high seas a foreign ship, other than a ship entitled to complete immunity in accordance with articles 95 and 96, is not justified in boarding it unless there is reasonable ground for suspecting that:
(a) the ship is engaged in piracy;
(b) the ship is engaged in the slave trade;
(c) the ship is engaged in unauthorized broadcasting and the flag State of the warship has jurisdiction under article 109;
(d) the ship is without nationality; or
(e) though flying a foreign flag or refusing to show its flag, the ship is, in reality, of the same nationality as the warship.

Article 110(1) distinguishes two cases where the foreign warship or the military aircraft may exercise the right of visit.
The first is the case where acts of interference derive from powers conferred by specific treaties. In those cases, only the States Parties to relevant conventions are entitled to exercise the right of visit on vessels flying the flag of other States Parties. In fact, some fishery treaties allow a State Party to board and inspect vessels of other Parties on the high seas.
The second case involves the right of visit with respect to activities of foreign vessels enumerated in Article 110(1). In this case, the warship or military aircraft may send a boat under the command of an officer to the suspected ship in order to verify the ship’s right to fly its flag. If suspicion remains after the documents have been checked, it may proceed to a further examination on board the ship (Article 110(2)). If the suspicions prove to be unfounded, however, it shall be compensated for any loss or damage that may have been sustained pursuant to Article 110(3). Next, the exceptions listed in Article 110(1) must be briefly examined.

(b) Piracy
The suppression of piracy is a well-established exception to the exclusive jurisdiction of the flag State. Under customary law and Article 105 of the LOSC, every State may seize a pirate ship or aircraft and arrest suspected pirates. This exception seeks to safeguard the common interest of the international community as a whole in protecting the freedom of navigation and human life. The international law of piracy will be discussed in the context of maritime

(c) Slave Trade
From the early nineteenth century, a large number of international treaties have been concluded with regard to the abolition and suppression of the slave trade. On 2 July 1890, the General Act for the Repression of African Slave Trade was adopted by the Anti-Slavery Conference held in Brussels. The General Act was signed and ratified by seventeen States. The General Acts provided the reciprocal right of visit, of search and of seizure of vessels whose tonnage is less than 500 tons in the limited zone, namely, the Indian Ocean and the Red Sea.
In 1926, the Slavery Convention was adopted by the Assembly of the League of Nations and signed by the representatives of thirty-six States. In 1956, the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery was adopted. Unlike the 1890 General Act, those conventions do not provide the right of visit, search and seizure.
However, the right of visit was revived in Article 23 of the Convention on the High Seas and Article 110 of the LOSC. One can say that the right of visit to a ship that is engaged in the slave trade represents customary law. In the case of the suppression of the slave trade, it is generally considered that enforcement jurisdiction beyond the right of visit is limited to the flag State. Under Article 99, every State is obliged to take effective measures to prevent and punish the transport of slaves in ships authorised to fly its flag and to prevent the unlawful use of its flag for that purpose. Any slave taking refuge on board any ship, whatever its flag, shall ipso facto be free.
A contemporary issue that may arise in this context is whether or not Article 110(1)(b) can apply to interception of human trafficking on the high seas. It would appear that the definition of slavery under the 1926 Slavery Convention no longer corresponds with contemporary forms of human trafficking. This notwithstanding, there may be some scope for arguing that the concept of ‘slaves’ should be interpreted in a contemporary evolutionary perspective since, as the Universal Declaration of Human Rights states, slavery and the slave trade shall be prohibited in all their forms. In fact, with a view to intensifying national and international efforts towards the abolition of slavery, the slave trade and practices similar to slavery, the Supplementary Convention of 1956 added four forms of ‘a person of servile status’: (i) debt bondage, (ii) serfdom, (iii) forced marriage and the trafficking of women, and (iv) the trafficking and exploitation of children under the age of eighteen years. Further, the 2005 Council of Europe Convention on Acting against Trafficking in Human Beings states that ‘trafficking in human beings may result in slavery for victims’. Thus it may not be unreasonable to consider that some forms of human trafficking may qualify as ‘slavery’ in a contemporary perspective. If this is the case, theoretically at least, Article 110(1)(b) of the LOSC may afford the legal basis for the right of visit on the high seas upon vessels reasonably suspected of engaging in human trafficking that could be considered as slave trade in the contemporary meaning of the term.

(d) Unauthorised Broadcasting
The Geneva Convention on the High Seas contains no rule with regard to the repression of unauthorised broadcasting. In the early 1960s, however, unauthorised broadcasting from the high seas became a matter of concern particularly in Europe. Unauthorised broadcasting may create various problems, such as electrical interference with licensed broadcasts and frequencies used for distress calls, copyright of broadcast materials and taxation. Thus, in 1965, the European Agreement for the Prevention of Broadcasting Transmitted from Stations Outside National Territories was adopted under the auspices of the European Council. Under Article 3 of the 1965 Agreement, each Contracting Party shall punish their nationals who have committed or assisted unauthorised broadcasting on its territory, ships or aircraft, or outside national territories on any ships, aircraft or any other floating or airborne object. Each Contracting Party shall also punish non-nationals who, on its territory, ships or aircraft, or on board any floating or airborne object under its jurisdiction, have committed or assisted unauthorised broadcasting. Thus the 1965 Agreement did not depart from the principle of the exclusive jurisdiction of the flag State.
However, the LOSC allows non-flag States to exercise jurisdiction over unauthorised broadcasting. Under Article 109(2) of the LOSC, ‘unauthorised broadcasting’ means ‘the transmission of sound radio or television broadcasts from a ship or installation on the high seas intended for reception by the general public contrary to international regulation, but excluding the transmission of distress calls’. All States are required to cooperate in the suppression of unauthorised broadcasting from the high seas in accordance with Article 109(1). Under Article 109(3), any person engaged in unauthorised broadcasting may be prosecuted before courts of the following:
(a) the flag State of the ship;
(b) the State of registry of the installation;
(c) the State of which the person is a national;
(d) any State where the transmissions can be received; or
(e) any State where authorised radio communication is suffering interference. On the high seas, a State having jurisdiction in accordance with paragraph 3 may, in conformity with Article 110, arrest any person or ship engaged in unauthorised broadcasting and seize the broadcasting apparatus pursuant to Article 109(4). Thus, unlike in the case of piracy, Article 109 does not set out a universal jurisdiction with regard to the suppression of unauthorised broadcasting.

(e) Ship Without Nationality
While the situation in which a vessel loses its nationality may be rare, stateless vessels exist in reality. At least two possible situations can be identified.
First, under Article 92(2) of the LOSC, a ship which sails under the flags of two or more States as a matter of convenience may be ‘assimilated to a ship without nationality’, namely a stateless ship. Such a ship may not claim any of the nationalities in question with respect to any other State.
Second, a ship may become stateless if its flag State revokes the registration of the vessel because of the continued violation of the laws of the flag State. A ship may also become stateless if the ship revokes its registration of its own accord for some reasons and does not acquire another nationality.
A ship without nationality is without protection under customary law. Thus Article 110 (1) and (2) of the LOSC empowers a warship or a military aircraft to visit and verify the ship’s right to fly its flag where there is a reasonable ground to suspect that the ship is without nationality. Yet the LOSC is silent on the legal consequences of being a stateless vessel. On the basis of the practice of the United States, O’Connell argued that when a ship loses its nationality, its status becomes a question for the municipal law of the owners, and that law is likely to regulate the ship. In this regard, care should be taken in noting that the national State of the individual on the stateless vessel enjoys diplomatic protection.
A more appropriate interpretation seems to be that some jurisdictional nexus between a stateless vessel and an interdicting State is needed to justify seizure of the vessel. In any case, it seems clear at least that, unlike in the case of piracy, the LOSC does not provide universal jurisdiction over a stateless vessel.

(f ) Ships With Suspicious Nationality
Concerning ships with suspicious nationality, Article 110(1)(e) provides that a warship or a military aircraft may visit and verify the ship’s right to fly its flag where there is a reasonable ground for suspecting that a ship, though flying a foreign flag or refusing to show its flag, is of the same nationality as the warship in reality. It is universally recognised that warships of every State may seize, and bring to a port of their own for punishment, any foreign vessel sailing under the same flag as the inspecting warship without any authorisation.

(2): The Right of Hot Pursuit
Hot pursuit is the legitimate chase of a foreign vessel on the high seas following a violation of the law of the pursuing State committed by the vessel within the marine spaces under the pursuing State’s jurisdiction. The right of hot pursuit seems to be, to a considerable extent, a product of Anglo-Saxon jurisprudence. Indeed, the right was clearly recognised in the North case of 1906. Presently the right of hot pursuit is enshrined in both Article 23 of the Geneva Convention on the High Seas and Article 111 of the LOSC. The right of hot pursuit is subject to several requirements.
(i) The hot pursuit must be undertaken by warships or military aircraft, or other ships or aircraft clearly marked and identifiable as being on government service and authorised to that effect in accordance with Article 111(5).
(ii) The hot pursuit of a foreign ship may be undertaken when the competent authorities of the coastal State have good reason to believe that the ship has violated the laws and regulations of that State. It follows that the alleged illicit conduct of the foreign ship is crucial. If the foreign ship is within a contiguous zone, the pursuit may only be undertaken if there has been a violation of the rights for the protection of which the zone was established, that is to say, customs, fiscal, immigration or sanitary laws (Article 111(1)).
A controversial issue is whether attempted offences give rise to a right of hot pursuit. In drafting Article 23 of the Geneva Convention on the High Seas, which is essentially equivalent to Article 111(1) of the LOSC, Brazil proposed to the ILC that the draft Article should refer to an offence which was about to be committed. In this regard, the ILC seemed to consider that the suggestion was already implied in the text. Hence it can be argued that the right of hot pursuit is exercisable with regard to attempted offences.
(iii) Since, in essence, hot pursuit is a temporary extension of the coastal State’s jurisdiction onto the high seas, the pursuit must be commenced when the foreign ship or one of its boats is within the internal waters, the archipelagic waters, the territorial sea or the contiguous zone of the pursuing State pursuant to Article 111(1). The right of hot pursuit is to apply mutatis mutandis to violations of the laws and regulations of the coastal State in the EEZ or on the continental shelf, including safety zones around continental shelf installations in accordance with Article 111(2).
(iv) The pursuit may only be commenced after a visual or auditory signal to stop has been given at a distance which enables it to be seen or heard by the foreign ship in conformity with Article 111(4). This requirement is a replica of Article 23(3) of the TSC. In this regard,
the ILC took the view that the words ‘visual or auditory signal’ exclude signals given at a great distance and transmitted by wireless. In this connection, the use of radio signals was at issue in the R. v Mills and Others case of 1995. In light of the development of modern technology, Judge Devonshire at Croydon Crown Court ruled that the transmission of the
radio signals complied with the preconditions of the Convention on the High Seas concerning the right of hot pursuit. Furthermore, the Annex VII Arbitral Tribunal in the 2015 Arctic Sunrise Arbitration held that the parameters of the right of hot pursuit must be interpreted in the light of their object purpose, having regard to the modern use of technology, and that VHF messages presently constitute the standard means of communication between ships at sea and can fulfil the function of informing the pursued ship.
(v) The pursuit must be hot and continuous. Article 111(1) makes clear that hot pursuit may only be continued outside the territorial sea or the contiguous zone if the pursuit has not been terminated’. The aircraft giving the order to stop must itself actively pursue the ship until a ship or another aircraft of the coastal State arrives to take over the pursuit, unless the aircraft is itself able to arrest the ship pursuant to Article 111(6)(b). It is also recognised that hot pursuit can be transferred between ships, although there is no explicit provision on this particular matter. The requirement of continuous pursuit was at issue in the Arctic Sunrise Arbitration. In this case, a question was raised regarding whether the Arctic Sunrise, a vessel flying the flag of the Netherlands and chartered by Greenpeace International in order to protest against the Russian offshore oil platform located in the Pechora Sea within the EEZ of Russia, was continuously pursued by the Russian Coast Guard vessel Ladoga. In this regard, the Annex VII Arbitral Tribunal found that the pursuit of the Arctic Sunrise by the Russian Coast Guard vessel was interrupted and that therefore one of the necessary conditions set out in Article 111 for a lawful exercise of the right of hot pursuit was not met.
(vi) The right of hot pursuit ceases as soon as the ship pursued enters the territorial sea of its own State or of a third State pursuant to Article 111(3), since pursuit in the territorial sea of another State would violate the territorial sovereignty of that State. It would follow that hot pursuit may continue in the EEZ of a third State. Where the hot pursuit was unjustified, compensation shall be paid for any loss or damage that may have been sustained thereby under Article 111(8). According to ITLOS, the conditions for the exercise of the right of hot pursuit under this provision are cumulative, and each of them has to be satisfied for the pursuit to be legitimate under the LOSC.
The right of hot pursuit raises at least three issues that need further consideration. The first issue relates to the validity of hot pursuit that involves ships in pursuit from two or more coastal States. Examples of so-called ‘multilateral hot pursuit’ can be found in the Southern Ocean. In 2001, the Togo-registered South Tomi was pursued from Australia’s EEZ by the Australian-flagged Southern Supporter. After a fourteen-day chase covering a distance of 3,300 nautical miles, the South Tomi was finally apprehended by Australian personnel with the aid of two South African vessels. In 2003, after a twenty-day hot pursuit, covering 3,900 nautical miles, the Uruguayan-flagged fishing vessel Viarsa 1 was apprehended by the Southern Supporter with the aid of South African- and United Kingdomflagged vessels. Considering that these pursuits satisfied the conditions of hot pursuit and officials of the coastal State that initiated the pursuit could formally apprehend the suspected vessels, one can say that the multilateral hot pursuits in the cases of the South Tomi and Viarsa 1 were not at variance with Article 111 of the LOSC. Later, in 2003, Australia and France concluded a bilateral treaty which is applicable in the Southern Ocean. Article 3(3) of this treaty allows each Party to request assistance from the other Party when engaged in a hot pursuit. Article 4 of the 2003 Treaty allows a vessel or other craft authorised by one of the Parties to continue hot pursuit through the territorial sea of the other Party under certain conditions.
The second issue involves the validity of the doctrine of constructive presence. This doctrine allows the coastal State to arrest foreign ships which remain on the high seas but commit an offence within the territorial sea or the EEZ by using their boats. The doctrine of constructive presence may operate with the right of hot pursuit. In this regard, a classical case is the Tenyu Maru case of 1910. The Japanese schooner, the Tenyu Maru, laid off from shore about 11.5 miles off the Pribilof seal islands and sent her boats out hunting seals. On 9 July 1909, the US revenue cutter discovered two boats within about 1.5 miles of the shores of Otter Island. The cutter captured a boat within the 3-mile limit from shore and the other after crossing the 3-mile line. The Tenyu Maru, together with her captain and crew, was conveyed by the cutter to Dutch Harbour, Alaska. In this case, District Judge Overfield considered: ‘The schooner was therefore just as much “engaged in” killing the seals, under the statutes, when the small boat was captured within the three-mile limit on July 9th as though she had been standing within the zone at the time, in the absence of any evidence showing extenuating circumstances.’ Thus, the Tenyu Maru was forfeited to the United States.
The doctrine of constructive presence seems to be implicitly recognised in Article 23(3) of the Convention on the High Seas and Article 111(4) of the LOSC. However, it appears that the validity of extensive constructive presence needs further consideration. While simple constructive presence involves the case where the ship’s own boats are used to establish the nexus, extensive constructive presence concerns the case where other boats are used.
The doctrine of extensive constructive presence was upheld in R. v Mills and Others. The Poseidon, a ship registered in Saint Vincent and the Grenadines, transferred 3.25 tons of cannabis to a British-registered fishing trawler, the Delvan, on the high seas. The Delvan had set out from Cork in the Republic of Ireland for this purpose. The Delvan headed to the United Kingdom and, later, it arrived in the south-coast port of Littlehampton. The cargo was unloaded there but the shore party was arrested shortly thereafter. Next, the Poseidon was arrested by the British task force on the high seas. A question arose of whether the relationship between the Poseidon and the Delvan was such as to satisfy the requirements set out in Article 23(3) of the Convention on the High Seas, namely teamwork and the existence of a mother-ship relationship. On this issue, Judge Devonshire took the view that there was the existence of a mother-ship relationship.
The third issue to be addressed involves the use of force in the exercise of the right of hot pursuit. An often-quoted case on this matter is the I’m Alone case. The I’m Alone, which was a British ship of Canadian registry, engaged in smuggling liquor into the United States.
The vessel was sighted within one hour’s sailing time from the United States by the coastguard cutter, the Wolcott. As the I’m Alone refused to stop, the Wolcott pursued the vessel onto the high seas. Still in hot pursuit, another revenue cutter, the Dexter, joined the pursuit and, on 22 March 1929, the I’m Alone was sunk on the high seas in the Gulf of Mexico by the revenue cutter. The Joint Interim Report of the Commissioners of 1933 stated:
If sinking should occur incidentally, as a result of the exercise of necessary and reasonable force for such purpose [of effecting the objects of boarding, searching, seizing and bringing into port the suspected vessel], the pursuing vessel might be entirely blameless.
In light of the circumstances in this case, however, the Commissioners considered that the admittedly intentional sinking of the suspected vessel was not justified by anything in the 1924 Convention between the United States of America and Great Britain to Aid in the Prevention of the Smuggling of Intoxicating Liquors into the United States. Finally, in the Joint Final Report of 1935, the Commissioners found that the sinking of the vessel was not justified by the 1924 Convention or by any principle of international law.
More recently, the use of force in hot pursuit was in issue in the M/V ‘Saiga’ (No. 2) case. In this case, ITLOS held:
The normal practice used to stop a ship at sea is first to give an auditory or visual signal to stop, using internationally recognized signals. Where this does not succeed, a variety of actions may be taken, including the firing of shots across the bows of the ship. It is only after the appropriate actions fail that the pursuing vessel may, as a last resort, use force. In this case, the Guinean officers fired at the Saiga with live ammunition indiscriminately.
As a consequence, considerable damage was done to the ship and, more seriously, caused severe injuries to two of the persons on board. Thus ITLOS ruled that Guinea used excessive force and endangered human life before and after boarding the Saiga, and thereby violated the rights of Saint Vincent and the Grenadines under international law.
Those precedents suggest that the use of force is a last resort and must be necessary and reasonable. In this regard, Article 22(1)(f ) of the 1995 Fish Stocks Agreement requires that the inspecting State shall ensure that its duly authorised inspectors:
avoid the use of force except when and to the degree necessary to ensure the safety of the inspectors and where the inspectors are obstructed in the execution of their duties. The degree of force used shall not exceed that reasonably required in the circumstances. Likewise, Article 9 of the 2005 SUA Convention provides: ‘Any use of force pursuant to this article shall not exceed the minimum degree of force which is necessary and reasonable in the circumstance.’

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