2.1 The high seas freedoms
UNCLOS Part VII lays down provisions governing the use and protection of the high seas. Article 87(1) provides that ‘[t]he high seas are open to all States, whether coastal or land-locked’ and that the ‘[f]reedom of the high seas is exercised under the conditions laid down by’ UNCLOS and ‘by other rules of international law’. The freedoms of the high seas include the freedom of navigation, of overflight, to lay submarine cables and pipelines, and to construct artificial islands and other installations, as well as freedom of fishing, and freedom of scientific research.(1) Robin Churchill, Vaughan Lowe and Amy Sander, The Law of the Sea (4th edition, Manchester University Press 2022), 375, point out that freedoms of the high seas cannot be exhaustively listed, since States cannot control the activities of other States and their vessels on the high seas and new ocean technologies are constantly developing.
The high seas freedoms are not absolute and unconditional. Article 87(2) provides that the high seas freedoms ‘shall be exercised by all States with due regard for the interests of other States in their exercise of the freedom of the high seas, and also with due regard for the rights’ with respect to activities in the Area (Part XI). Seen in light of other UNCLOS provisions, notably Part XII Protection of the marine environment, it is obvious that States exercising freedoms of the high seas may be subject to existing rules of international law not expressly mentioned in Part VII. They may also be subject to post-UNCLOS legal developments, resulting in further conditions being imposed on the high seas’ freedoms.
Living marine resources of the water column beyond the EEZ as well as sedentary species beyond the continental shelf or Extended Continental Shelf are regulated by the regime of the high seas.(2) UNCLOS (n 2) Articles 87 and 116. While no State may claim sovereignty over the high seas(3) Ibid., Article 89. and the Area,(4) Ibid., Article 137. living marine resources of the high seas are considered by some States as being res communis (property of the community of States).(5) See Tore Henriksen, ‘Revisiting the Freedom of Fishing and Legal Obligations on States Not Party to Regional Fisheries Management Organizations’ (2009) 40 Ocean Development and International Law 80-96, 86. Since all States are granted equal access to the living resources of the high seas, fish stocks, especially low productivity species, are prone to depletion and the ‘tragedy of the commons’.(6) Margaret E Banyan, ‘Tragedy of the Commons’ (2020), Encyclopædia Britannica Online; FAO (2009), Deep-sea Fisheries in the High Seas: Ensuring sustainable use of marine resources and the protection of vulnerable ecosystems, <FAO Fisheries and Aquaculture Department - Deep-sea Fisheries in the High Seas: Ensuring sustainable use of marine resources and the protection of vulnerable marine ecosystems>. However, by contrast to mineral resources of the Area governed by the principle of the Common Heritage of Mankind (Part XI UNCLOS), the high seas regime does not envisage equitable benefit sharing of marine resources and does not establish any institutional frameworks or bodies to govern the marine resources of the high seas as a common resource.(7) UNCLOS Article 118 imposes a duty on States whose nationals are engaged in high seas fisheries to cooperate for the purposes of management and conservation of stocks.
UNCLOS grants a special role to the “competent international organization”, through which States establish “international rules and standards to prevent, reduce and control pollution of the marine environment from vessels” that are necessary to fulfil States’ obligations under UNCLOS.(8) UNCLOS (n 2) Article 211. The IMO performs these obligations by adopting international conventions and developing non-binding recommendations for States within maritime safety and environmental protection. As discussed further, flag States are given the principal responsibility for ensuring the safe conditions and environmentally responsible operation of vessels sailing under their flag.