Freedom of High Sea

What is High Sea?
What is Freedom of High Sea?
Legal Status of Freedom of High Sea.

High Sea

High sea is a term of international and maritime law; the open ocean, not part of the exclusive economic zone, territorial sea or internal waters of any state.

According to Professor Melquiades Gamboa

"High seas refers to all parts of the sea not included in the territorial sea or in the internal waters of a state. Being the common property of all nations, no portion of the high seas can be appropriated by any state (but see continental shelf) and no state may subject any part of them to its sovereignty."

The term was institutionalized by the United Nations in the 1982 United Nations Convention on the Law of the Sea, also known as UNCLOS.

According to Article 86 of United Nations Convention on the Law of the Sea (UNCLOS) III

The  provisions  of  this  Part  apply  to  all  parts  of  the  sea  that  are  not included  in  the  exclusive  economic  zone,  in  the  territorial  sea  or  in  the internal waters of a State, or in the archipelagic waters of an archipelagic State.  This article does not entail any abridgement of the freedoms enjoyed by all States in the exclusive economic zone in accordance with article 58.

Freedom of High Sea

In 1609, Dutch jurist and philosopy Hugo Grotius wrote what is considered the foundation of the international legal doctrine regarding the seas and oceans – Mare Liberum, a Latin title that translates to "freedom of the seas". While it is generally assumed that Grotius first propounded the principle of freedom of the seas, countries in the Indian Ocean and other Asian seas accepted the right of unobstructed navigation long before Grotius wrote his De Jure Praedae (On the Law of Spoils) in the year of 1604. Previously, in the 16th century, Spanish theologian Francisco de Vitoria postulated the idea of freedom of the seas in a more rudimentary fashion under the principles of jus gentium.

During World War II, nations started to expand and claim many resources and water territories all over their surrounding coasts. There were four international treaties meticulously drafted in the late 1950s and onto the 1970s, but the issues were not resolved between nations until 1982 when the United Nations Convention on the Law of the Sea was introduced.

Legal Status of Freedom of High Sea

Freedom of the high seas

According to Article 87(1) of United Nations Convention on the Law of the Sea (UNCLOS) III

The high seas are open to all States, whether coastal or land-locked. Freedom of the high seas is exercised under the conditions laid down by this Convention and by other rules of international law.  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 international law, 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.


Right of navigation

According to Article 90 of United Nations Convention on the Law of the Sea (UNCLOS) III

Every State, whether coastal or land-locked, has the right to sail ships flying its flag on the high seas.


Right to lay submarine cables and pipelines

According to Article 112 of United Nations Convention on the Law of the Sea (UNCLOS) III

1. All States are entitled to lay submarine cables and pipelines on the bed of the high seas beyond the continental shelf.

2. Article 79, paragraph 5, applies to such cables and pipelines.


Right to fish on the high seas

According to Article 116 of United Nations Convention on the Law of the Sea (UNCLOS) III

All States have the right for their nationals to engage in fishing on the high seas subject to:

(a)   their treaty obligations;

(b)  the  rights  and  duties  as  well  as  the  interests  of  coastal  States provided for, inter alia, in article 63, paragraph 2, and articles 64 to 67; and

(c)   the provisions of this section.