The turbulent times of the great geographical discoveries and colonial conquests of the European powers demanded the need for the emergence of new legal doctrines that would serve as a serious justification for resolving controversial issues that arose in the clash of interests of two or more states. The long-awaited response to the needs of navigation was formed legal principles, of which the “high sea” is considered the most important. This concept was first introduced in the 17th century by the Dutch scientist Hugo Grotius (Hugo de Grootu). And, as I.V. Lukshin later correctly noted, in the future it acquired a comprehensive character and freedom of navigation is still based on it.
The concept of "open sea"
The vast expanses of the seas and oceans that originate beyond the external borders of territorial waters and economic regions are commonly called the “open sea”. Despite the fact that certain sections of these water open spaces have different legal regimes, they are endowed with equal legal status: these territories are not subject to the sovereignty of any state. The liberation of the open sea from the influence of the sovereignty of an individual country or group of states was an important part of the historical process, which was accompanied by the recognition of the right for each people to freely use neutral space.
Thus, the open sea is the parts of the sea (oceans) that are in common use of all states on the basis of their full equality. The operation of the high seas is based on the adoption of a generally accepted postulate stating that no state has the right to establish its rule on the territories of the high seas and the airspace above them.
From the history
The formation of the concept of “freedom of the sea” outside the coastal zone was determined by the XV-XVIII centuries, when a struggle ensued between two feudal powers that divided the sea open spaces among themselves - Spain and Portugal, with the states that took the first steps of capitalist production - England, France, later Holland. At this time, arguments were developed for the concept of high seas freedom. The most profound substantiation of this idea was given by the Dutch leader and lawyer Hugo de Groot in the brochure “Free Sea” (1609). Later, the Swiss scientist E. Wattel managed to develop the teachings of the Dutch lawyer in the publication “The Law of the Nations” (1758).
The adoption of the principle of freedom of the high seas in international law is a consequence of the need for countries in economic relations, the search for new markets and sources of raw materials. The final ratification of this provision occurred at the end of the XVIII century. Neutral countries that suffered during the fighting on the seas and suffered serious economic losses, advocated for freedom of navigation. Their interests were clearly substantiated in the Russian declaration of 1780 addressed to France, England and Madrid. In it, the Russian government, laying down the foundations of the freedom of navigation and trade in the open sea, announced the right of neutral countries to apply appropriate protection in violation of these foundations.
At the beginning of the 19th century, the principle of freedom of the sea was recognized by almost all states. It should be noted that a serious obstacle to its global adoption was Great Britain, which often claimed complete supremacy in open waters.
International legal principles
The legal status of the open sea in the 20th century was first formulated at the 1958 Geneva Conference. In article 2 of the international treaty concluded following the meetings of the participating countries, it was proclaimed that in the waters of the open sea all states equally have the right to freedom of navigation, flights, fishing, to unhindered extraction of natural resources and laying routes of submarine communication cables and pipelines . It was also emphasized that no state can have any claims to certain parts of the high seas. This statement required elaboration, since the states could not come to a full agreement on the legal status of certain parts of the high seas.
At the 1982 UN Conference on the Law of the Sea, states were able to reach agreement on a number of contentious issues, after which the Final Act was signed. The adopted Convention emphasized that freedom of use of the high seas is realized only in accordance with established norms of international law. Free use itself follows from the provision of the reasonable combination of certain types of activities of states, in which they should take into account the possible interests of the other participants in the use of the high seas.
In existing realities, the principle of freedom of the high seas is a reliable legal provision against attempts by coastal states to extend their sovereignty to sea spaces beyond the established limits of territorial waters.
International Seabed Area
The 1982 UN Convention on the Law of the Sea also saw provisions for the international seabed area, which in the past had been an integral part of the open sea. Opportunities for exploitation of the bottom have opened up, which necessitated discussion of the issue of its special regulation. The term "region" means the bottom of the seas and oceans, their bowels beyond the boundaries of national jurisdiction. The UN Charter and other rules of international law decided that operations carried out in the seabed should not concern the legal status of high seas over the bottom or airspace above them.
The seabed area, like the open sea, is the common heritage of mankind, therefore, all the spaces of the bottom and all its bowels belong to the entire human society. Therefore, developing countries have every right to a part of the income earned by other states in the development of the mineral resources of the seabed. No country can claim to exercise sovereignty and exercise it in relation to any particular part of the region or its resources, and also has no right to appropriate any part of it. Only an authorized intergovernmental organization on the seabed can enter into agreements with states or certain companies wishing to conduct activities in this area, and it also ensures control of these activities in accordance with the concluded agreement.
Legal status of a ship on the high seas
Freedom of navigation determines that any state, both in the coastal zone and not having access to the sea, has the right to have ships flying its flag sail on the high seas. The vessel will have the nationality of the country whose flag it is entitled to fly. This means that every ship plowing the waters of the open sea must have the flag of its country of registration or international organization. The conditions and procedure for providing a flag to a ship and its right to fly this flag are not subject to international legal regulation and are related to the internal competence of the state, where they are registered with the proper documents.
The presentation of the flag is not a formal act and, in accordance with international law, imposes a certain responsibility on the state. In particular, it implies a valid real relationship between the state and the ship itself. It is also the duty of the state to exercise technical, administrative and social control over vessels flying its flag. The ship is deprived of the opportunity to seek protection of any state or international organization in case of need, if its navigation was carried out under different flags or without a flag at all.
Right to intervene
If a vessel engaged in illegal activities is located on the high seas, in this case the 1958 and 1982 Conventions provide for the intervention of warships, which have the right in open waters to inspect a vessel with a foreign flag, if there is reason to believe that it practices piracy, the slave trade, unauthorized radio and television broadcasting or stopping the ship, exercising the right of prosecution. Intervention is also provided for in situations where the vessel does not have a flag raised or uses the flag of a country other than its own, or has the same nationality as a warship, but avoids raising the flag. In addition, an act of interference is permitted on the basis of established international treaties.
It should be added that military ships and vessels in the public service have full integrity on the high seas from the competence of a state, excluding only the flag state.
Piracy and armed robbery
Piracy on the high seas is not a section of history that has sunk into oblivion, but a problem that currently worries the world community quite a lot, and all issues related to it and armed robbery at sea are of particular relevance. First of all, the severity of this problem is cultivated by the active activity of pirates in different parts of the world, but it is even more aggravated by the fact that piracy has become associated with such unlawful acts as international terrorism, smuggling of weapons and drugs, and other dangerous elements.
A significant contribution to the fight against pirate crime was made by the 1982 Convention, which proclaimed that the waters of the high seas are neutral and reserved only for peaceful purposes. She affirmed the right of a warship of any state to interrupt the navigation of a ship suspected of robbery. A warship has the power to detain pirate ships and carry out all operations provided for by the provisions of this Convention.
Conclusion
Open sea spaces are territories with an international regime, located outside the territorial sea, on which the sovereignty of a state does not apply. They are also defined as territories belonging to all. These spaces cannot be subject to national assignment, and are accessible for exploration and exploitation by all states of the earth, in accordance with international law. In other words, this means that the open sea in the modern world is accessible to a ship of any state that has every right to freely move through the open sea, where no one will interfere with it, detain it or harass it without any legitimate reason.