1. Law of the Sea: The Compass of Rules
The law of the sea is one of the oldest branches of international law, governing the use of the oceans, the allocation of marine resources, and the safety of navigation. Its primary legal framework, the 1982 United Nations Convention on the Law of the Sea (UNCLOS), divides the oceans into various zones to define the rights and obligations of states. This field of law ensures that maritime commerce, the lifeblood of the global economy, operates on a secure and predictable legal foundation.
2. What are the High Seas?
Under the law of the sea, the high seas are defined as all parts of the mass of saltwater that are not included in the exclusive economic zone, the territorial sea, or the internal waters of a State.
- Core Principle: “Freedom of the High Seas” (Mare Liberum).
- Rights: In this zone, all states enjoy freedoms of navigation, overflight, the laying of submarine cables, and scientific research. However, the law of the sea dictates that these freedoms do not imply a lack of regulation; rather, they are subject to specific international legal conditions.
3. Definition of Merchant Ships and the State/Private Distinction
In the context of the law of the sea, a merchant ship is any vessel engaged in the transport of goods or passengers for commercial gain. A critical distinction exists here:
- Private Merchant Ships: Vessels owned by individuals or private corporations.
- State-Owned Merchant Ships: Vessels owned or operated by a State but used for commercial purposes.
- Legal Distinction: According to the principle of “Restrictive Immunity” in modern law of the sea, there is no difference between state-owned merchant ships and private merchant ships regarding jurisdiction and immunities. Both groups are subject to the same rules on the high seas. Only “government ships operated for non-commercial purposes” (warships, coast guard, etc.) enjoy absolute sovereign immunity.
4. The Basis of Criminal Jurisdiction: The Flag State Principle
The law of the sea establishes that a merchant ship sailing on the high seas is subject to the exclusive criminal jurisdiction of its Flag State. The ship is legally considered a “floating part of the territory” of the state whose flag it flies. Therefore, for any crime committed on board—such as homicide or theft—the authority to arrest and prosecute the offender belongs solely to the courts of the state where the vessel is registered.
5. Exceptions to Criminal Jurisdiction
To protect the collective interests of the international community, the law of the sea provides specific exceptions to the flag state principle, allowing warships of other states to intervene:
A. Piracy
As a violation of jus cogens, piracy is considered a “crime against humanity.” Under the law of the sea, every state has the right to seize a pirate ship on the high seas, arrest the persons on board, and prosecute them in its own courts (Universal Jurisdiction).
B. Slave Trade
The prohibition of the slave trade is a fundamental pillar of the law of the sea. If a warship has reasonable grounds to suspect that a foreign merchant ship is engaged in the slave trade, it has the “Right of Visit” to board and inspect the vessel.
C. Unauthorized Broadcasting
The law of the sea allows for intervention against vessels broadcasting illegal radio or television signals from the high seas. Jurisdiction may be exercised by the flag state, the state of the broadcaster’s nationality, or the state receiving the signals.
D. Stateless Vessels (Ships Without Nationality)
Vessels that do not fly a flag or that fraudulently use multiple flags are not entitled to the protection of any state under the law of the sea. Such vessels are subject to the intervention and jurisdiction of all states.
E. Right of Hot Pursuit
If a merchant ship violates the laws of a coastal state within its sovereign waters and flees to the high seas, the coastal state’s authorities may pursue and capture the vessel on the high seas, provided the pursuit is “hot” and continuous, as defined by the law of the sea.
F. Collisions and Incidents of Navigation
Contrary to older practices, the modern law of the sea (UNCLOS Art. 97) stipulates that in the event of a collision on the high seas, criminal proceedings against the crew can only be initiated by the Flag State or the State of the individual’s nationality.
Conclusion
Order on the high seas depends on the supervisory responsibility of flag states as defined by the law of the sea. However, whether a vessel is a private or a state-owned merchant ship, all are subject to international intervention in cases of grave crimes against humanity. This balance, maintained by the law of the sea, ensures that the oceans remain both free and law-abiding.
Yanıt yok