CSS International Law Solved Paper 2016 Question No 4

What is meant by Freedom of High Seas? Discuss certain restrictions on it by International Law, including the right of Hot Pursuit by the ships of a coastal state on the High Seas.


The seas have historically performed two important functions: first, as a medium of communication, and secondly as a vast reservoir of resources, both living and non-living. Both of these functions have stimulated the development of legal rules.

A series of conferences have been held, which led to the four 1958 Conventions on the Law of the Sea and then to the 1982 Convention on the Law of the Sea. The 1982 Convention contains 320 articles and 9 Annexes.

Freedom of High Seas

The closed seas concept proclaimed by Spain and Portugal in the fifteenth and sixteenth centuries, and supported by the Papal Bulls of 1493 and 1506 dividing the seas of the world between the two powers, was replaced by the notion of the open seas and the concomitant freedom of the high seas during the eighteenth century.

The essence of the freedom of the high seas is that no state may acquire sovereignty over parts of them. This is the general rule, but it is subject to the operation of the doctrines of recognition, acquiescence and prescription, where, by long usage accepted by other nations, certain areas of the high seas bounding on the territorial waters of coastal states may be rendered subject to that state's sovereignty. This was emphasized in the Anglo-Norwegian Fisheries case.

The high seas were defined in Article 1 of the Geneva Convention on the High Seas, 1958 as all parts of the sea that were not included in the territorial sea or in the internal waters of a state. This reflected customary international law, although as a result of developments the definition in article 86 of the 1982 Convention includes: 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.

Article 87 of the 1982 Convention provides that the high seas are open to all states and that the freedom of the high seas is exercised under the conditions laid down in the Convention and by other rules of international law. It includes inter alia the freedoms of navigation, overflight, the laying of submarine cables and pipelines, the construction of artificial islands and other installations permitted under international law, fishing, and the conduct of scientific research.294 Such freedoms are to be exercised with and also with due regard for the rights under the Convention regarding activities in the International Seabed Area.

Australia and New Zealand alleged before the ICJ, in the Nuclear Tests case, that French nuclear testing in the Pacific infringed the principle of the freedom of the seas, but this point was not decided by the Court. Nevertheless, article 88 of the 1982 Convention provides that the high seas shall be reserved for peaceful purposes. Principles that are generally acknowledged to come within article 2 include the freedom to conduct naval exercises on the high seas and the freedom to carry out research studies.