The principle of the freedom of the high seas was established in the early nineteenth century.This principle has two meanings. First, the freedom of the high seas means that the high seas are free from nationaljurisdiction. In this regard, Article 89 of the LOSC makes clear that ‘[n]o State may validlypurport to subject any part of the high seas to its sovereignty'.Second, the freedom of the high seas means the freedom of activities there. This is acorollary of the fact that the high seas are free from the national jurisdiction of any State.Consequently, each and every State has an equal right to enjoy the freedom to use the highseas in conformity with international law. In this regard, Article 87(1) provides:The high seas are open to all States, whether coastal or land-locked. Freedom of the high seas isexercised under the conditions laid down by this Convention and by other rules of internationallaw. It comprises, inter alia, both for coastal and land-locked States:(a) Freedom of navigation;(b) Freedom of overflight;(c) Freedom to lay submarine cables and pipelines, subject to Part VI;(d) Freedom to construct artificial islands and other installations permitted under internationallaw, subject to Part VI;(e) Freedom of fishing, subject to the conditions laid down in section 2;(f ) Freedom of scientific research, subject to Parts VI and XIII.This provision calls for six brief comments.First, the term ‘inter alia' suggests that the freedom of the high seas may comprise otherfreedoms which are not provided for in Article 87(1). Yet it is unclear what activities mayfall within the category of other freedoms of the high seas. In particular, a sensitive issuearises with regard to the legality of military activities on the high seas. While Article 88 ofthe LOSC provides that the high seas shall be reserved for peaceful purposes, it is generallyconsidered that this provision does not prohibit naval manoeuvres and conventionalweapons testing on the high seas. However, Article 301 explicitly prohibits militaryactivities which are contrary to the UN Charter, by providing that:In exercising their rights and performing their duties under this Convention, States Parties shallrefrain from any threat or use of force against the territorial integrity or political independenceof any State, or in any other manner inconsistent with the principles of international lawembodied in the Charter of the United Nations.Second, as explained in the previous chapter, freedom to construct artificial islands andfreedom of scientific research may be qualified by the coastal State jurisdiction in superjacentwaters of the continental shelf beyond 200 nautical miles. It would follow that thesix freedoms fully apply only to the high seas as superjacent waters of the Area. Third, as ITLOS stated in the M/V ‘Louisa' case, the freedom of navigation does not give avessel ‘a right to leave the port and gain access to the high seas notwithstanding itsdetention in the context of legal proceedings against it'. Fourth, an issue arises of whether protest at sea using vessels can be regarded as aninternationally lawful use of the sea. In this regard, Annex VII Arbitral Tribunal, in theArctic Sunrise…
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