The Interpretation and Application of the Freedom of Navigation and Flag State Jurisdiction in the M/V “Norstar” and the M/T “San Padre Pio” Cases

2021 ◽  
Vol 9 (1) ◽  
pp. 108-118
Author(s):  
Vasco Becker-Weinberg
Keyword(s):  
Flag State ◽  
Freedom Of Navigation ◽  
High Seas

Abstract The M/V “Norstar” and the M/T “San Padre Pio” cases raise important questions regarding the interpretation and application of the freedom of navigation and the principle of exclusive flag State jurisdiction, namely if the latter prohibits the exercise of prescriptive jurisdiction on the high seas by non-flag States. One of the exceptional aspects of the M/V “Norstar” case is the Joint Dissenting Opinion (JDO) by seven judges underlining a distinctive view regarding the interpretation of the freedom of navigation and the principle of exclusive flag State jurisdiction. Subsequent to the M/V “Norstar” case, the M/T “San Padre Pio” case was submitted and bares relevance for the clarification on some of the key matters addressed in the Judgment and the JDO in the M/V “Norstar” case. This article highlights the different views of the Judgment and the JDO and examines the relation with the M/T “San Padre Pio” case.

scholarly journals The MV “Norstar” Case (Panama v. Italy)

2020 ◽  
Vol 114 (1) ◽  
pp. 116-123
Author(s):  
Cameron Miles
Keyword(s):  
Law Of The Sea ◽  
International Tribunal ◽  
The Law ◽  
State Rights ◽  
Flag State ◽  
The Way ◽  
Freedom Of Navigation ◽  
High Seas

In the MV “Norstar” Case (Norstar Case), the International Tribunal for the Law of the Sea (ITLOS) produced two reasoned decisions. In the first, the Tribunal established jurisdiction over the relevant dispute and the admissibility of Panama's claims. In the second, it found that Italy had violated Panama's right to freedom of navigation on the high seas. In the latter decision, the Tribunal relied on an expansive understanding of flag state jurisdiction—prompting a vociferous joint dissent by seven of its twenty-three judges. The majority's understanding of the jurisdictional exclusivity of the flag state as extending to prescriptive as well as enforcement jurisdiction is a significant expansion of flag state rights—and will have a corresponding impact on the way that shipping is regulated internationally.

The Respect of Other States’ Rights (Freedom of Navigation and Other Rights and Freedoms Set Out in the LOSC) as a Limitation to the Military Uses of the EEZ by Third States

2019 ◽  
Vol 34 (1) ◽  
pp. 117-127
Author(s):  
Geneviève Bastid Burdeau
Keyword(s):  
Coastal State ◽  
The Military ◽  
Freedom Of Navigation ◽  
High Seas

Abstract Due regard appears as the key notion to articulate rights recognized by the LOSC to coastal states in their EEZ and the rights of third states. Little attention is paid by the LOSC to the relations between third states conducting activities in the EEZ of a coastal state apart from the laying of cables. Third states enjoy all freedoms of the high seas compatible with the rights expressly granted to the coastal state. Although no specific provision regulates the relations between third states in the use of these rights, it is argued that the obligation of due regard prevailing in the high seas under Article 87(2) should also apply between third states in the EEZ of a coastal state. However, for military activities not listed in Article 87(1), the answer is uncertain due to the opposite views of states concerning such activities by third states in their EEZ.

The Principle of Exclusive Flag State Jurisdiction

2020 ◽  
Vol 5 (2) ◽  
pp. 330-347
Author(s):  
Chris Whomersley
Keyword(s):  
Human Rights ◽  
State Control ◽  
Maritime Safety ◽  
Exclusive Jurisdiction ◽  
Judicial Decisions ◽  
Multiple Challenges ◽  
International Instruments ◽  
Flag State ◽  
Port State Control ◽  
High Seas

Abstract The principle that a ship is subject to the exclusive jurisdiction of the flag State on the high seas is firmly established. But given the prevalence of open registries and the multiple challenges in the maritime sphere, such as maritime safety, the popularity of cruise holidays, the promotion of human rights for those working at sea, and the need to combat iuu fishing, is it any longer tenable to slavishly follow the principle? International instruments and judicial decisions have emphasised the responsibilities of flag States. But States have also increasingly turned to other mechanisms, especially port State control, to deal with the various problems.

scholarly journals One Fish, Two Fish, Few Fish, No Fish:  Regional Fisheries Management Organisations, IUU Fishing and  High Seas Fisheries Management

2021 ◽  
Author(s):  
◽  
Aaron Irving
Keyword(s):  
Fisheries Management ◽  
International Community ◽  
Fisheries Resources ◽  
Iuu Fishing ◽  
State Compliance ◽  
State Of Affairs ◽  
The Right ◽  
The Unclos ◽  
Flag State ◽  
High Seas

<p>The World's fisheries are in a desperate state, they have been utilised to a point where a majority of the fisheries resources are fully exploited. In addition to overfishing, the responsibility of the sad state of affairs of the world's High Seas' fish stocks can be put down to inefficient management. The high seas fisheries regime is dominated by two powerful, tried, tested and consented to norms: the principle of freedom of fishing on the high seas and the principle of exclusive flag state jurisdiction over flagged vessels on the high seas. These Grotius norms (unintentionally) obstruct effective and meaningful high seas fisheries management, and have enabled unscrupulous states and actors to take advantage of the lacunae created by the UNCLOS High Seas fisheries framework and engage in IUU fishing which has resulted in a tragedy of the high seas commons. Furthermore these norms have a 'hobbling' effect on RFMOS and coastal states alike, and leave them almost powerless to ensure flag-state compliance with their sustainable fishing measures without the consent of the flag state, and totally unable to enforce its measures directly on that flagged vessel. Thus in the absence of an express reference to the superiority of coastal state rights over those of high seas fishing states, freedom of high seas fishing prevails. However the international community armed with weaker UNCLOS obligations of conservation and co-operation and have fought the good fight, and in lightening speed have constructed a normative framework that is additional to but consistent and complimentary with the UNCLOS regime. With the use of port state measures, voluntary instruments that codify responsible fisheries practice, surveillance and the denial of the right to land IUU fish – the fight is gradually beginning to turn in favour of the international community.</p>

scholarly journals FRANCE AND THE RIGHT OF INTERVENTION ON THE HIGH SEAS

1995 ◽  
Vol 1995 (1) ◽  
pp. 719-720
Author(s):  
Jean-François Levy
Keyword(s):  
International Law ◽  
Direct Action ◽  
The Right ◽  
Flag State ◽  
High Seas

ABSTRACT Over 20 years, France has developed a system for making the best use of the right to intervene in case of a pollution threat established in accordance with international law. A single authority—the Préfet Maritime—has been established for each of the three coasts of France. Once it has been recognized that a ship may pose a pollution threat to the shoreline, even if the ship is on the high seas, the Préfet may act to either persuade the captain or shipowner to take necessary measures (such as arranging for a tow) to prevent an accident, or to take direct action himself as required. So far, persuasion, sometimes through a ship's flag state embassy, has proved to be sufficient in every case.

Enforcement of High Seas Fisheries Agreements: Observation and Inspection under the Convention on the Conservation of Antarctic Marine Living Resources

1998 ◽  
Vol 13 (4) ◽  
pp. 579-605 ◽  
Author(s):  
Rosemary Rayfuse
Keyword(s):  
Fish Stocks ◽  
Antarctic Marine ◽  
Flag State ◽  
High Seas

AbstractReliance on exclusive flag state jurisdiction has proved ineffective in enforcing high seas fisheries agreements. The 1995 UN Fish Stocks Agreement provides for other methods of enforcement to be developed with regional fisheries organisations and arrangements to enhance and supplement flag state enforcement. One particular method referred to is that of boarding and inspection. Prior to 1995 the Convention on Conservation of Antarctic Marine Living Resources was one of the few agreements providing for establishment of a boarding and inspection scheme. This article examines the development and implementation of the CCAMLR system. It critically appraises the system and provides suggestions for improvement. In doing so, the article attempts to demonstrate the precedential value of the CCAMLR experience to programmes established or under consideration by other high seas fisheries organisations and arrangements

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