More than forty thousand merchant ships, and countless number of smaller coastal craft, ply world oceans which comprise nearly seventy percent of the earth’s surface. Each year approximately ten million containers of cargo, containing raw materials to finished goods are transported by seas. The ships are owned by different states, private companies or individuals and manned by mixture of seafarers from different countries, mixed together from various nationalities. These ships are perhaps the most autonomous entities on earth as rule of law allows frequent change of their allegiance or identity by choosing a flag to suit their requirement.
Although merchant ships spend most of their lifetime outside the territorial waters, the current international maritime legal regime is ironically revolved around nationality of the vessel. Every vessel engaged in international trade must register in a country and is subjected to the regulatory control of that country whose flag it flies as per the existing international maritime law. Resultantly, any country has the right to allow a vessel to fly its national flag and to therefore bestow its nationality upon that vessel. When a vessel owner registers a vessel with a nation, the owner agrees to abide by that nation’s law and regulations of that ‘flag state’ in return for protection and the right of its vessel to be of that sovereign state. A system commonly known as “Flags of Convenience” (FOC) has developed, in which commercial vessels register in countries with “open registries” and consequently the ships contain practically no link at all to the flag states in which they are registered.
Freedom of the “High Seas” and the International Legal Regime
Early as the Roman Empire, use of the world’s oceans and maritime laws has operated on unwritten principles of freedom of the seas, which provided unrestricted access for the basic activities such as fishing and travelling. In 1609, Hugo Grotius, a Dutch scholar published “Mare Liberum” (The free Sea or The Freedom of the Seas), in which he codified the generally accepted principles of freedom at sea, giving nations equal and unrestricted access to the oceans and the resources there-in. “Mare Liberum” remained the dominant guiding principles of international maritime law until the beginning of the twentieth century. Following the Second World War, rapid technological developments and the increasing awareness of the finite nature of the ocean resources highlighted the need for bringing together maritime law. This recognition of the need for a uniform international maritime regulatory regime led to the UNCLOS in 1958, UNCLOS II in 1960 and UNCLOS III in 1970. The most recent was adopted by the UN General Assembly in 1982 and became the foremost international agreement regulating the maritime world which entered into force on November 16, 1994.
UNCLOS defines the High Seas as the area of the ocean that falls beyond any one country’s Exclusive...