Exceptions To The Exclusivity of Flag-State Jurisdiction

Exceptions to the exclusivity of flag-state jurisdiction
The concept of the freedom of the high seas is limited by the existence of a series
of exceptions.
Piracy
The most formidable of the exceptions to the exclusive jurisdiction of the flag state
and to the principle of the freedom of the high seas is the concept of piracy. Piracy
is strictly defined in international law and was declared in article 101 of the 1982
Convention to consist of any of the following acts:
(a)Any illegal acts of violence, detention or any act of depredation, committed for
private ends by the crew or the passengers of a private ship or private aircraft and
directed: (i) on the high seas, against another ship or aircraft, or against persons or
property on board such ship or aircraft; (ii) against a ship, aircraft, persons or
property in a place outside the jurisdiction of any state;
(b) Any act of voluntary participation in the operation of a ship or of an aircraft

with knowledge of facts making it a pirate ship or aircraft;
(c) Any act of inciting or of intentionally facilitating an act described in

subparagraph (a) or (b).
The essence of piracy under international law is that it must be committed for
private ends.
The slave trade
Although piracy may be suppressed by all states, most offences on the high seas
can only be punished in accordance with regulations prescribed by the municipal
legislation of states, even where international law requires such rules to be
established. Article 99 of the 1982 Convention provides that every state shall take
effective measures to prevent and punish the transport of slaves in ships authorized
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. Under
article 110, warships may board foreign merchant ships where they are reasonably
suspected of engaging in the slave trade; offenders must be handed over to the flag
state for trial.
Unauthorized broadcasting
Under article 109 of the 1982 Convention, all states are to co-operate in the
suppression of unauthorized broadcasting from the high seas. This is defined to
mean transmission of sound or TV from a ship or installation on the high seas
intended for reception by the general public, contrary to international regulations
but excluding the transmission of distress calls. Any person engaged in such
broadcasting may be prosecuted by the flag state of the ship, the state of registry of
the installation, the state of which the person is a national, any state where the
transmission can be received or any state where authorized radio communication is
suffering interference. Any of the above states having jurisdiction may arrest any
person or ship engaging in unauthorized broadcasting on the high seas and seize
the broadcasting apparatus.
Hot pursuit
The right of hot pursuit of a foreign ship is a principle designed to ensure that a
vessel which has infringed the rules of a coastal state cannot escape punishment by
fleeing to the high seas. In reality it means that in certain defined circumstances a
coastal state may extend its jurisdiction onto the high seas in order to pursue and
seize a ship which is suspected of infringing its laws.
The right, which has been developing in one form or another since the nineteenth
century, was comprehensively elaborated in article 111 of the 1982 Convention,
building upon article 23 of the High Seas Convention, 1958.
Collisions
Where ships are involved in collisions on the high seas, article 11 of the High Seas
Convention declares, overruling the decision in the Lotus case, that penal or
disciplinary proceedings may only be taken against the master or other persons in
the service of the ship by the authorities of either the flag state or the state of which
the particular person is a national. It also provides that no arrest or detention of the
ship, even for investigation purposes, can be ordered by other than the authorities
of the flag state. This was reaffirmed in article 97 of the 1982 Convention.
Treaty rights and agreements
In many cases, states may by treaty permit each other’s warships to exercise
certain powers of visit and search as regards vessels flying the flags of the
signatories to the treaty.337 For example, most of the agreements in the nineteenth
century relating to the suppression of the slave trade provided that warships of the
parties to the agreements could search and sometimes detain vessels suspected of
being involved in the trade, where such vessels were flying the flags of the treaty
states.
Pollution
Article 24 of the 1958Convention on the High Seas called on states to draw up

regulations to prevent the pollution of the seas by the discharge of oil or the
dumping of radioactive waste, while article 1 of the Convention on the Fishing and
Conservation of the Living Resources of the High Seas, of the same year, declared
that all states had the duty to adopt, or cooperate with other states in adopting, such
measures as may be necessary for the conservation of the living resources of the
high seas. Although these provisions have not proved an unqualified success, they
have been reinforced by an interlocking series of additional agreements covering
the environmental protection of the seas. The International Convention relating to
Intervention on the High Seas in Cases of Oil Pollution Casualties, signed in 1969
and in force as of June 1975, provides that the parties to the Convention may take
measures on the high seas.

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Exceptions to the exclusivity of flag-state jurisdiction

(b) Any act of voluntary participation in the operation of a ship or of an aircraft

(c) Any act of inciting or of intentionally facilitating an act described in

The slave trade

Treaty rights and agreements

Article 24 of the 1958Convention on the High Seas called on states to draw up

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