MarIus

2.4.1 Overview

Beyond the limits of the territorial sea, the ship is subject to the exclusive jurisdiction of the flag State.(1) UNCLOS art. 92. UNCLOS art. 92 states that ships shall be subject to the flag State’s exclusive jurisdiction on the “high seas”.(2) UNCLOS art. 92. The high seas include “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”.(3) UNCLOS art. 86 (1).

The exclusive economic zone is an “area beyond and adjacent to the territorial sea”, extending up to 200 nautical miles “from the baselines from which the territorial sea is measured”.(4) UNCLOS arts. 55 and 57. The continental shelf is the “seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance”.(5) UNCLOS art. 76 (1). This means that the waters above the continental shelf may be part of either the exclusive economic zone or the high seas.

According to UNCLOS art. 58 (2), “[a]rticles 88 to 115 and other pertinent rules of international law apply to the exclusive economic zone in so far as they are not incompatible with [the Convention’s part V]”, which contains specific provisions relating to the exclusive economic zone. Accordingly, the main principle of exclusive flag State jurisdiction applies, both on the high seas above the continental shelf and in the exclusive economic zone.

Meanwhile, the coastal State does have sovereign rights for the purpose of exploring and exploiting natural resources in the exclusive economic zone and on the continental shelf.(6) UNCLOS arts. 56 and 77. These sovereign rights can form the basis of regulations that can enable the imposition of national wage and working conditions on board foreign-flagged ships in the exclusive economic zone and on the continental shelf, without exercising jurisdiction over these ships.

2.4.2 Exclusive flag State jurisdiction

There is some discussion in legal literature as to whether the exclusivity of flag State jurisdiction according to art. 92 applies to both legislative and enforcement jurisdiction, or only to enforcement jurisdiction.(7) See e.g. Hoffmann, Albert J. “Navigation, Freedom of” in Max Planck Encyclopedia of Public International Law, Rüdiger Wolfrum (ed.), Oxford Public International Law, 2011, para. 22, arguing the former; and Douglas Guilfoyle, «Article 92», in United Nations Convention on the Law of the Sea A Commentary, Alexander Proelss (ed.), München: Verlag C. H. Beck oHG, 2017, pp. 700–704, p. 700–702, arguing the latter. The provision’s context in the Convention may lend support to the interpretation that it is limited to enforcement jurisdiction only, as all the exceptions to art. 92 contained in the Convention concern enforcement jurisdiction.(8) See e.g. UNCLOS art. 110 on the right of visit of warships and art. 111 on the right of hot pursuit. The background for and considerations behind the provision also support such an interpretation, as the freedom of navigation of the high seas is not threatened by several States having concurrent legislative jurisdiction over the same ship.(9) Guilfoyle (2017) p. 702. This discussion is, however, by no means settled.(10) See the International Tribunal for the Law of the Sea’s (ITLOS) judgment in the M/V “Norstar” Case (Panama v. Italy), 10 April 2019, No. 25, para. 225, where the ITLOS states that the principle of exclusive flag State jurisdiction “prohibits not only the exercise of enforcement jurisdiction on the high seas by States other than the flag State but also the extension of their prescriptive jurisdiction to lawful activities conducted by foreign ships on the high seas”.

2.4.3 Sovereign rights of the coastal State

In the exclusive economic zone, UNCLOS art. 56 (1) a) provides that the coastal State has “sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the sea-bed and of the sea-bed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds”.(11) UNCLOS art. 56 (1) a). The list of purposes is not exhaustive, and the reference to “other activities” is so worded as to give the coastal State jurisdiction over other economically relevant uses of the exclusive economic zone as well, when made possible through technological developments.(12) Alexander Proelss «Article 56» in United Nations Convention on the Law of the Sea A Commentary, Alexander Proelss (ed.), München: Verlag C. H. Beck oHG, 2017, pp. 418–437, p. 428; Churchill and Lowe (1999) p. 167; Rothwell and Stephens (2016) p. 93.

On the continental shelf, UNCLOS art. 77 (1) provides that the coastal State “exercises […] sovereign rights for the purpose of exploring it and exploiting its natural resources”.(13) UNCLOS art. 77 (1). Maggio points out that the coastal State’s “sovereign rights” under art. 77 are limited to the purpose of exploring and exploiting the continental shelf’s natural resources.(14) Amber Rose Maggio, «Article 77» in United Nations Convention on the Law of the Sea A Commentary, Alexander Proelss (ed.), München: Verlag C. H. Beck oHG, 2017, pp. 604–614, p. 606, with further references.A similar understanding is expressed in the preparatory works of the Norwegian Seabed Minerals Act.(15) Act of 22 March 2019 no. 7 relating to mineral activities on the Norwegian continental shelf (Seabed Minerals Act). Here, it is stated that “[t]he law of the sea gives the coastal State access to exercise jurisdiction on the continental shelf limited by what is necessary for the purposes for which the coastal State has sovereign rights or which has a special connection to the exercise of these rights”.(16) Prop.106 L (2017–2018) p. 18 [translated by the author]. One can therefore probably conclude that coastal State jurisdiction pursuant to Article 77 is limited to activities that are necessary for or have a special connection to the exploration or exploitation of natural resources on the continental shelf.(17) An example of legislation taking such a limitation into account is Canada’s Coasting Trade Act (S.C. 1992, c. 31) section 2 (1), which stipulates that in order for activity over or transport to and from the continental shelf to be subject to the Act, it must be related to the exploration, exploitation or transportation of the mineral or non-living natural resources of the continental shelf of Canada.

The coastal State’s sovereign rights in the exclusive economic zone and on the continental shelf entail that the coastal State, in principle, is free to impose as a condition for the activities mentioned above that licensees provide their employees with wage and working conditions in accordance with certain standards, and that they require the same of their subcontractors. Still, the coastal State must exercise its rights with due regard to the rights and freedoms of other States.(18) UNCLOS arts. 56 (2) and 78. See also art. 300. This includes, inter alia, the exclusive flag State jurisdiction under art. 92 and the freedom of navigation under art. 87.(19) Cf. UNCLOS art. 58 (1) and (2).

By regulating licensees involved in resource exploration and exploitation in the exclusive economic zone and on the continental shelf, the coastal State will be able to secure national wage and working conditions on board foreign-flagged ships in the exclusive economic zone and on the continental shelf, without exercising jurisdiction over these ships. Such regulation may therefore be used to impose national wage and working conditions on board foreign-flagged ships, while still being compatible with the rights and freedoms of other States, such as the principle of exclusive flag State jurisdiction, in any of its interpretations, and the freedom of navigation on the high seas.