Doctrine of Freedom of Seas - Term Paper Example

194244 194244 QUESTION ONE: The law of seas as per the United Nations that came into being in 1973 was followed by many additions, treatise and ratifications. According to the Maritime Law, the salt water all over the globe does not come under the national territory and the governments do not have any administrational authority over them. Maritime Law does not apply to the territorial sea or to the internal waters of a State. It applies only to the high seas that are out of the territorial boundaries. Claim of influential nations that part of the sea belongs to their control, has failed many times. Freedom of the Seas during peace time is open to all the nations and this has no connection with the national sovereignty. In 1609, the celebrated Dutch Jurist Hugo Grotius proposed the Freedom of the Seas that has become an integral part of modern International Law today. By the second half of the 20th century, coastal states had started demanding offshore-fishing rights, exploitation of resources and the conservation responsibility of maritime heritage. In the First United Nations Conference at Geneva in 1958, and the second conference in Geneva, 1960, third conference in Caracas in 1973, later in Geneva and New York, the problem was discussed; but unanimity decision could not be arrived at for a long time. According to some, the earlier doctrine of Freedom of Seas, the Laissez Faire "has been designed specifically to favour the strong countries over the weak countries, the industrialised countries over the poor, and the developed over the developing," Njenga in Payoyo (p.69), because there are inequalities in the traditional law of the sea. Hence it was necessary for the modern doctrine to adjust well with the Doctrine of Coastal State Sovereignty. Countries outside Europe feel that the present law is rather 'Eurocentric' "The idea that beyond the narrow confines of the territorial sea, the Coastal State would retain jurisdiction and control over adjacent resources, living and non-living, as well as all economic activities conducted therein, was realised through the sui generis regime of the Exclusive Economic Zone (EEZ)," (Ibid, p.72). Modern Freedom of the Seas governs unrestricted access to the high seas, beyond the national territory. Initially, it was established by Romans, was challenged by Papal Bull in 16th century, trying hard to divide the oceans between the then naval powers of Portugal and Spain. In the 18th century, the rights over the territorial waters were extended up to 3 miles. During the war, United States argued that neutral ships should be permitted into the territorial waters to carry goods, while military blockade, war planning all affected this law in those unsettled days. When naval power was at its zenith, this law was an important bone of contention. After the French revolution when Britain and France imposed maritime blockade, the matter went to the extent of America declaring war on Britain! During the war, this law was interpreted according to eash country's convenience. "Germany interpreted it as overthrow of British naval supremacy; Great Britain invoked it against the unrestricted use of the submarine by Germany; while the United States appealed to it for the protection of the American commerce against illegal interference by both belligerents" Latane (1919, 161). Now there are arguments that even the modern doctrine is not highly coherent about the resources, findings, wildlife, treasures, heritage and the ownership of all of them. They have been treated on the principle of 'out of sight, out of mind'. "The fact that we have not thought of ocean space and resources in this way is both an error of omission and commission" Orbach, http://www.tos.org/oceanography/issues/issue_archive/issue_pdfs/16_1/16.1_orbach.pdf This Doctrine had been an ambiguous "The rule in International Law, therefore, generally, is that neutral property must not be seized if it is not contraband, or if it is not going to break a blockade. There's the rub. Contraband articles going to the enemy of course are not permitted by the opposing belligerent to reach the other belligerent, and when there is a blockade raiders must keep away. But these two rules have enabled belligerents to get around those other principles that are established. It is that particular question that defines the question of the Freedom of the Seas" Munro (1930). In times of peace, the Doctrine is readily accepted by all the countries in modern days. It is difficult to realise today that it was questioned and unending legal battles were fought over it only decades ago by every power, naval or not. They have the freedom of navigation, freedom of fishing, freedom to lay submarine cables and pipelines, freedom to fly over the high seas. All these freedoms are recognised by the International Law. Article 4 says: "Every State, whether coastal or not, has the right to sail ships under its flag on the high seas." Article 5 [1]: "Ships have the nationality of the State whose flag they are entitled to flyState must effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag." QUESTION 2: As the lawyer of the company, I would advice my client as below: 1. Sunken treasures in the high seas are a matter of litigation and it depends on how the case is presented because there is high prevailing ambiguity in the connected cases, which could be used to the advantage of the company. If the treasure is not within 12, or 24 miles of Spain or Britain, the claim of these States diminishes accordingly. If it is in international waters, the legality of the seizure will be questioned in the Court. If it is in the overseas British territory near Gibralter, Britain too has something to say about the matter as the control of Gibralter has gone from Spain to Britain in 1713. 2. No doubt, Spain has not abandoned the right of her sunken ships; still she has not done anything to salvage them. This could be a point in favour of the company. 3. If Spain cannot establish the nationality of the ship, it will lose its claim. 4. If it is not a warship, the company has the claim as the first person who has found it. 5. If the ship was seized in high sea, that fact could turn the tide in the company's favour. 6. Company is permitted legally to carry on the salvaging operation and it is entitled to do so. 7. Shifting the treasure was within the jurisdiction of the company as it is an abandoned treasure hunt. Treasures found in the sea are tricky matters. A company that owns the ship, which finds the treasure, should know about the ownership of such a treasure. Sunken treasure in the high seas creates ownership problems and the company that has found it cannot claim ownership outright. According to Article 2 of Convention on the High Seas, High seas are open to all nations, and any ship can venture into any part of the high seas. Article 2 says: "Freedom of the high seas is exercised under the conditions laid down by these articles and by the other rules of international law. It comprises, inter alia, both for coastal and non-coastal States" Geneva Convention on the High Seas, http://www.oceanlaw.net/texts/genevahs.htm According to Article 11 [1]: ".no penal or disciplinary proceedings may be instituted against such persons except before the judicial or administrative authorities either of the flag State or of the State of which such person is a national." And [3] states: "No arrest or detention of the ship, even as a measure of investigation, shall be ordered by any authorities other than those of the flag State." Article 20 Where the seizure of a ship or aircraft on suspicion of piracy has been affected without adequate grounds, the State making the seizure shall be liable to the State the nationality of which is possessed by the ship or aircraft, for any loss or damage caused by the seizure. Article 23: 7. Where a ship has been stopped or arrested on the high seas in circumstances which do not justify the exercise of the right of hot pursuit, it shall be compensated for any loss or damage that may have been thereby sustained. All the above laws will work in favour of the company. QUESTION 3 Odyssey can try to get exclusive rights on the site of the treasure, which is undisclosed till now, and the site contains the valuable cargo in the sunken merchant ship of perhaps seventeenth century. If properly presented and argued, the court can grant such rights. About the coins found in that place, the company has been tight-lipped and has not mentioned anything either to the media or to the court. But rumours are rife. Still type of the coins or the denomination or the country to which they had belonged too is unknown. The nearest country to the treasure seems to be Spain, which also believes that the sunken ship is Spanish. A ship abandoned or sunk in the high seas has no owners and taken from that point of view, it is difficult for Spain to establish its ownership, unless it is a war grave, in which case the parent country can still have a hold on that ship, as the internationally recognised successor, irrespective of where is lies now. Law of salvage and law of finds are governed by the longstanding maritime traditions that are accepted internationally. Unless it is a wartime participant, any other ship is considered to be an abandoned, sunken cargo in the high seas and the first person, who happens to see the wreckage, will be its owner and in that case, Odyssey becomes the owner of this ship. Territorial sovereignty could be claimed by the coastal states only within 12 miles. Still, within the 24 mile limit, it is possible for the coastal states to impose certain regulations, claim underwater artefacts of historical, archaeological and environmental importance. Actually speaking they have territorial rights only for 12 miles. Beyond 24 mile limit, they do not have any right at all, formal or informal. Hence, it is not easy for Spain to establish that the property belonged to it. It also does not have authority to grant or deny ownership to anyone per se. Usually the Law of Salvage is being ignored for a long time now. many conventions have undertaken to protect the cultural heritage and this includes the sunken ship beyond 100 years and they proposed such artefacts to be maintained as common heritage of humanity. In this case, conventions cannot interfere because they are not effective because they are not yet ratified by all the nations. There is a very strong chance of the company getting 80% share of the booty initially and 50% later. There is also another old law that says that any treasure within 200 miles of the coast could be claimed by the coastal state. This could be contested. If this law could be applied here, then the company could be guilty of removing the treasure and sending it to USA1. The sole applicable jurisdiction is that of the Flag State. Article 6: "Ships shall sail under the flag of one State only save in exceptional cases expressly provided for in international treaties or in those articles and shall be subject to its exclusive jurisdiction". So only the Flag state exercises the quasi-judicial jurisdiction2 Article 303 (1): "Duty to protect objects of an archaeological and historical nature and to co-operate therefore" "However article 303 (1) cannot form the legal basis for claims to any part of the high seas" Strate (1995, 224), because it does not specify the measures to be taken, and the language is vague. Spain has not declared this as one of the abandoned ships, presuming that it belongs to Spain3. Article 303 (3): "Reservation of the rights of the identifiable owners the law of salvage and other rules of admiralty, and laws and practices with respect to cultural exchanges." This can "only be read to mean that whatever law is applicable, it should not abolish the rights of the identifiable owners, the law of salvage and the laws and practices with respect to cultural exchanges" (ibid)4. QUESTION 3 Priorities of the company are: 1. Claiming legal damage from Spain for seizing the ship without proper warning, entering the ship without permission, arresting the captain of the ship and making him spend the night in the prison. "Today, Article 23 of the Geneva Convention on the high seas in paras. 5, 6 and 7 contains only the following sentences regarding the final stage and termination of hot pursuit: 'to arrest the ship', 'an arrest on high seas', 'a ship arrested..and escorted to a port of that State for the purpose of an enquiry before the competent authorities', 'where a ship has been stopped or arrested on the high seas'" Poulantzas (2002, p.234). 2. Establishing the change of direction that the ship was seized, even though earlier a high sea search was mentioned. 3. Establishment of using high speed vessels, warships, completely armed force against the ship even though it was neither a pirate ship nor a slave trafficking one. 4. Staking the claim on the treasure. 5. If that does not work, staking the claim on as high a percentage as possible. 6. Denying all the wrong doing in the Court of Law. The ship cannot be seized on high sea unless the seizing authority can prove that it had evidence that the 'ship was engaged in piracy, or slave trade, or refused to show its flag, or it is the same nationality as the seizing power'. In this case none of these could be shown. The Odyssey feels that the boarding was illegal and had to be complied with because the civil guard threatened use of force against them. Spain will say that it has not abandoned its ownership and other rights and the sunken vessels still belong to the Kingdom of Spain. Company can claim that the operation of salvage did not come under the jurisdiction of Spain. "The Kingdom of Spain further affirms and restates that arrest, recovery, or other unauthorized disturbance or recovery by Odyssey Marine Exploration of property of the Kingdom of Spain is not authorized, and the Kingdom of Spain reserves all rights and remedies arising from such activities." http://www.reuters.com/article/domesticNews/idUSN3045872320070530 QUESTION 4 There are many ways of establishing the above claims. The Company has to produce its legal permit given by the court for salvaging operation, which will support its action of shifting the treasure. Company should not disclose the place of the treasure as far as possible. It should be able to stand by its claim that the treasure was in the high seas, and hence, no country can stake a claim. The company should not divulge the details about the coins and their origin. There is another question on ethical and moral grounds and that demands the answer for the question that from where the treasure was taken. Did spain or any other country plundered it from one of the colonies Spain has appalling record of plundering and looting, especially in Latin America. The company should demand that Spain should establish that the treasure was not a snatched one, but there was a completely ethical story about its origin. The company has to go through all the details and see if there is any kind of proof that Spain had, after all abandoned its sunken ships. United Nations 2001 convention regarding underwater cultural treasures and sunken heritage was ratified, unfortunately only by 15 countries and still remains inapplicable. The nationality of the ship is crucial for the Spanish claim, especially if the company insists that they are not sure about the originality of the coins. Odyssey can file complains regarding its claim on the independently salvaged wreck of seafloor site. Spanish Government will definitely challenge the ownership. From the stock exchange front the company might have already been more than adequately benefitted. Archaeology cannot be used as an issue in this case. Anyway the legal tangle will take years. It is difficult to establish a possible offence against a possible Spanish historic heritage. There could be a possible British claim because some believe that it is a British ship carrying Spanish treasures that sank in the seventeenth century and according to the coin expert, it might have been found near the English Cornish coast. This ambiguity could be used in favour of the company. There could be connection to the ancient law called Sovereign Prerogative according to which if an antiquity is discovered it belongs to the sovereign, but it might not apply here as the place the antiquity was found was not under the jurisdiction of US. "On any occasion where there is a maritime lien or other charge on the ship, then an action in rem may be brought in the Admiralty Court and that shep arrested," Hill (2003, p.103)5. The company has a very tight claim either fully or partially on the treasure. Spain has committed a mistake by seizing the vessel in high seas, which is legally wrong according to the international law. Spain will be unable to establish the ship identity beyond doubt. Spain will also be unable to convince the morally qualified source of the coins, even though this point is legally unnecessary. If the company can take advantage of the incoherence inherent in the International Maritime law, there is no doubt that it will win the case. Spain will be shown in very poor light if the company can establish that it was chased and seized under threat of using force in the high seas. The law of salvage is not yet clear and the company can take advantage of it. Company will be at least given a very high percentage of the booty. But if Spain can establish the identity of the ship beyond doubt, can give proper origins of the treasure and also establish that the ship behaved erratically and it was not in high seas when it was seized, and the captain behaved unreasonably, then the company might find it difficult to fight its case. But all these points will be difficult for Spain to establish. BIBLIOGRAPHY 1. Hill, Christopher (2003), Maritime Law, LLP, London. 2. Latane, John H. (1919), 'The Freedom of the Seas', Annals of the American Academy of Political and Social Science, Vol. 84, International Reconstruction. (Jul., 1919), pp. 161-170. 3. Munro, H.F., The Empire Club of Canada Speeches 1930 (Toronto, Canada: The Empire Club of Canada, 1931) pp. 23-35 4. Poulantzas, Nicholas M. (2002), The Right of Hot Pursuit in International Law, Kluwer Law International, London. 5. Popoyo, Peter, B. (1997), Cries of the Sea, The Hague, Boston. 6. Strate, Anastasia (1995), The protection of the underwater cultural heritage, The Hague, M. Nijhoff Publishers. ONLINE RESOURCES 1. http://www.tos.org/oceanography/issues/issue_archive/issue_pdfs/16_1/16.1_orbach.pdf 2. http://www.oceanlaw.net/texts/genevahs.htm 3. http://www.danziger.com/Art+Auction_2004_jun.htm 4. http://www.reuters.com/article/domesticNews/idUSN3045872320070530 5. Read More