The loosely phrased, and undefined, ‘exclusive flag state jurisdiction’ principle of the United Nations Law of the Sea Convention Article 92, has arguably proved to be a red herring for states and academia, in its being raised as a limiting factor to extra-territorial prescription by non-flag states. This has extended to port state jurisdiction discussions, and was raised by analogy for aircraft, before the European Court of Justice, in relation to the limits of jurisdiction over high seas overflight. This paper argues for a limited scope to the term ‘jurisdiction’ in Article 92. It concludes that far from being a limiting factor, the principle of flag state exclusivity is solely concerned with the enforcement jurisdiction of states on the high seas. The increasing use of port state prescriptive jurisdiction, particularly those practices with extra-territorial effect, provides further evidence that this is the correct interpretation.
Across the board, port states are increasingly interested in the conduct of visiting foreign vessels, prior to, and after, their time at port. Indeed, the role of port states in certain fields has been increasingly highlighted and strengthened by the international community, to the extent that we consider not only port states’ rights, but a general duty, and push for legally binding minimum standards in the exercise of jurisdiction by ‘responsible’ port states.1 The focus of this duty can include extra-territorial resources, and thus elements of extra-territoriality in the state’s prescription.2
However, as the extra-territorial nature of port state prescription expands, what limitations does international law propose, and what limitations are of relevance in port state discussions? Although port states can use flexibility and uncertainty in the scope of jurisdictional rights, such as ‘territorial’ jurisdiction, the limits of port state jurisdiction are further obscured through uncertainty in the law of the sea regime’s general principles. The example examined here is ‘exclusive flag state jurisdiction’ (‘efsj’) on the high seas. Although it is a cornerstone of the law of the sea, the relationship between port state prescription and flag state exclusivity has been raised, but underdeveloped. This article attempts to provide the first theoretical review of that relationship, in order to assess if it is a limiting factor on expansive port state jurisdiction.
After briefly introducing state jurisdiction and the principle of efsj, the article reviews the possibility of efsj limiting extra-territorial port state jurisdiction. This can be seen in the literature and case law. The article then moves on to review the legal scope of ‘exclusive’, and ‘jurisdiction’, to demonstrate its inapplicability as a limitation on port state jurisdiction. efsj, as a matter of at-sea enforcement, is demonstrated through a systematic analysis of the United Nations Convention on the Law of the Sea (losc), state practice and a literature review. This is reaffirmed through an examination of the intertwined losc Article 97 and the freedoms of the sea which efsj was developed to protect. The conclusion then summarises the findings, and highlights the meaning of these results for the future of port state jurisdiction.
In international law a state must have the legal capacity to act, and a legitimate interest in exercising jurisdiction.3 As extensively discussed and defined in the literature, it is evident that three distinct bundles of rights compose the concept of state jurisdiction:
Prescriptive jurisdiction: “to prescribe, i.e., to make its law applicable to the activities, relations, or status of persons, or the interests of persons in things, whether by legislation, by executive act, or order, by administrative rule or recognition, or by determination by a court”.4
Adjudicative jurisdiction: “to adjudicate, i.e., to subject persons or things to the process of its courts or administrative tribunals, whether in civil or in criminal proceedings, whether or not the state is a party to the proceedings”.5
Enforcement jurisdiction: “to enforce or compel compliance or to punish noncompliance with its laws or regulations, whether through the courts or by use of executive, administrative, police, or other nonjudicial action”.6
Each form of state jurisdiction is distinct. They are subject to different tests and differ in scope, through different internationally accepted grounds for establishing ‘sufficient connections’. Legitimate prescriptive jurisdiction may exist for a state in relation to a particular form of conduct, but not for concurrent adjudicative7 or enforcement jurisdiction.8 The valid basis for one form of jurisdiction cannot, in and of itself, justify the existence of another form. This is not to say, however, that each doctrine is completely independent, but simply that each form must be established by its own international legal criteria. For example, a port state’s enforcement jurisdiction for a particular law also depends on its jurisdictional right to first prescribe said law.9 In practice therefore, any limitations on prescription will also operate to limit enforcement.10
For the purposes of this discussion, port state jurisdiction refers to prescriptive jurisdiction enforced against foreign vessels in port.11 Flag state jurisdiction refers to jurisdiction exercised by a state, “whose flag the ship flies and is entitled to do so under unclos”,12 over that said vessel. The concern here is jurisdictional rights, not responsibilities.
Let us assume a port state wishes to exercise prescriptive jurisdiction over extra-territorial conduct by a foreign vessel or its crew. Jurisdiction law provides which states could exercise jurisdiction and on what grounds. The right to exercise jurisdiction necessarily also entails the obligation to recognise the rights of other states to exercise jurisdiction. Three options present themselves. First, a port state may use its extensive territorial jurisdiction, and the controversial concept of ‘territorial extension’, to indirectly alter the conduct through regulation of a territorial element, whilst ‘taking into account’ the extra-territorial conduct.13 Alternatively, a port state may rely on an accepted head of extra-territorial jurisdiction, namely another nexus (nationality [active, flag, passive] and protective jurisdiction), universal jurisdiction, or a treaty-based allocation of jurisdiction through consent.14 Finally, a port state may go beyond what is currently acceptable in order to stimulate legal evolution, or simply because its self-interest in regulation is greater than the possible acts of retribution by other states.
However, whilst international law operates to avoid conflict through the allocation of jurisdiction,15 the same could be said of further recognised legal limitations on the exercise of jurisdiction. These limitations provide other scenarios where a state may have prima facie jurisdiction, but the international community has agreed that in a particular legal field, jurisdiction should be further limited to particular states. Limitations may flow from general principles of jurisdiction (such as reasonableness),16 but certainly, and additionally, from various sources of primary obligations (such as the law of the sea).17 Let us consider one limitation to extra-territorial port state jurisdiction that has been raised in jurisprudence and the academic literature, i.e., the exclusive jurisdiction of the flag state on the high seas and, subject to losc Article 56, the exclusive jurisdiction of the flag state in the Exclusive Economic Zones (eez):18 “Ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or in this Convention, shall be subject to its exclusive jurisdiction on the high seas.”19
What is the legal relationship between extra-territorial prescriptive jurisdiction by port states and the principle of efsj on the high seas? More importantly, could they conflict, or are they mutually exclusive? The mere fact that a law is only applied and enforced in port does not answer this question, and one must be careful to distinguish prescription and enforcement.20 “Maritime law enforcement action is premised upon the assertion of jurisdiction over the vessel or aircraft in question. Jurisdiction, in turn, depends upon the nationality, the location, the status, and the activity of the vessel or aircraft over which maritime law enforcement action is contemplated”.21 When the activity and its location refer to the high seas, a possible clash arises, and it is to a few examples we now turn.
The exercise of extra-territorial port state jurisdiction over high seas conduct could be raised in discussions on multiple maritime zones. Port enforcement would occur in internal waters (territory),22 but the prescription would be applicable to the high seas.23 We shall therefore look to efsj being raised as a limitation on non-flag prescription in the high seas generally, and as a limitation specifically applicable to port states.
Apart from the exceptional cases that are expressly provided for in international law (discussed below), vessels on the high seas are exclusively subject to flag state ‘jurisdiction’. The first situation in which efsj presents a difficulty is therefore with an interpretation in accordance with the ordinary meaning of ‘jurisdiction’, and in the context of a treaty that distinguishes between prescriptive and enforcement jurisdiction, when necessary and evident.24 The losc and the Convention on the High Seas (hsc) would thus include prescriptive jurisdiction in that jurisdictional principle. For example, Doris König states:
[O]n the high seas, vessels are subject to the exclusive jurisdiction and control of the flag State. This rule of customary international law is codified in Article 92(1) un Convention on the Law of the Sea. As a rule, other States have no right to exercise prescriptive, enforcement, and adjudicative jurisdiction over foreign ships on the high seas.25
The exceptions of customary and treaty law are contained in those treaty provisions (where the flag state is a state party), or in the losc.26 A similar position can be found in the literature by, e.g., Churchill and Lowe,27 Pozdnakova,28 Ronzitti,29 Hoffmann,30 and McDorman,31 amongst others.32 The principle can also be dealt with in a rather confusing manner, lacking clarity on the ‘jurisdiction’ discussed.33 Whilst other principles of extra-territorial prescriptive jurisdiction are raised, including nationality (Churchill and Lowe)34 and effects/protective jurisdiction (McDorman),35 the principle of efsj is treated as a consideration, whose ‘sanctity’ should be considered, and dispelled, in the case at hand.
A principle is therefore suggested which can act as a limitation on otherwise valid non-flag prescription. This creates particular difficulties for incidents involving multiple vessels, flagged to different states, where clearly both cannot have exclusive jurisdiction. One suggestion reads Article 92 as providing exclusive jurisdiction, where one vessel is involved, but, subject to Article 97, allowing the validity of other jurisdictional bases in multiple vessel scenarios.36
The limitation role of flag state exclusivity has been more explicit in works on the general rules of jurisdiction. For example, The Cambridge Companion to International Law points to the disdain of negative conflicts of jurisdiction, to highlight the necessity of extra-territorial principles in areas lacking territorial jurisdiction—for which the high seas qualifies.37 However, after accepting the ‘substantial link’ process of allocating jurisdiction, the authors propose a second examination if:
[A] state’s relation to a set of facts is so close, and its interests involved in it so important, that international law recognises it as the state with by far the closest link and thus endows it with exclusive jurisdiction over the matter. This might explain some of the normative choices made by contemporary international law which provide, for example, for a state’s exclusive jurisdiction as to [. . .] ships flying its flag.38
So Article 92 exclusivity “supersede[s] jurisdiction interests of other international actors”, establishing the flag state as the chief basis.39 Recent work by Geiss and Tams also posits this as the ‘traditional’ normative achievement of the law of the sea.40 Whilst it can certainly be agreed that this conclusion could avoid confusion and insecurity in international relations, and provide some legal certainty to private actors,41 it is argued below that no such exclusivity of prescriptive jurisdiction should be taken from the principle codified in losc. The ‘jurisdiction’ in ‘exclusive flag state jurisdiction’ provides neither a rebuttable presumption of exclusive prescription on the high seas, nor a limitation on otherwise valid extra-territorial prescription, because it is solely concerned with limiting enforcement at sea in the high seas/eez. Whilst the enforcement nature of efsj is noticeable in its exceptions (see below), the unfortunate lack of an explicit reference to enforcement in the wording of Article 92 has misled the above interpretations into including a presumptive limitation on prescriptive jurisdiction—a wide and significant treaty-based departure from general prescriptive jurisdiction—that one would expect to be supported by conclusive practice, if not explicit wording. The lack of evidence for such a presumption should be telling.
efsj as inclusive of prescriptive jurisdiction has similarly led to the doctrine being raised in discussions on port state jurisdiction. The clearest extra-territorial example is losc Article 218, the exceptional and innovative treaty-based jurisdiction over high seas pollution. Subject to the conditions imposed, a port state may exercise limited prescriptive and enforcement jurisdiction over high seas conduct, to which it otherwise does not have a substantial link. Nevertheless, it is also suggested that “the conferral of concurrent enforcement jurisdiction over illegal discharges on the high seas on port States leads to a curtailment of the exclusive jurisdiction of flag States”,42 or more generally that “there are subtle signs that ‘exclusive’ flag state jurisdiction is weakening from port state control”.43 Extra-territorial port state jurisdiction would arguably only have an effect on flag state exclusivity if the latter doctrine included prescriptive exclusivity, as port state jurisdiction is by definition enforced territorially.
Port state jurisdiction has not only been raised as a limitation on exclusivity, or its ‘excessive invocation’,44 but also vice-versa, as limited itself by Article 92.45 The argument that Article 218 not only provides a novel basis of jurisdiction, but also an implicit exhaustive code, presumably presupposes that otherwise exclusivity exists.46 This is later made more explicit: “there is a sanctity to flag State jurisdiction that operates to preclude port State authority over foreign vessels for activities on the high seas or in the waters of other States except in clearly defined circumstances.”47 As supporting evidence, Bodansky states “[d]uring the negotiation of marpol, proposals to allow port state enforcement of discharge violations on the high seas were defeated on the grounds that this would infringe on the flag state’s high seas jurisdiction”.48
More generally, efsj is considered as a possible basis of objection in the literature on residual port state jurisdiction.49 Discussions on emissions control by port states have raised potential objections similar to that of the ataa case (see below). As highlighted by Ringbom:
Opponents of the scheme would argue that a regional ets which covers emissions beyond the territory of the port State(s) challenges those principles. It impinges on the exclusive jurisdiction of non-eu flag States to regulate and enforce CO2 emissions for their ships.50
Ringbom himself concludes that port states are not prevented from implementing requirements that have implications beyond the port state’s territorial jurisdiction, but the question remains whether this principle should even be considered in that balancing. Other authors have balanced the question the other way,51 or raised efsj as a discussion point, before rightfully focusing on the topical developments of psj.52
The possibility of efsj limiting the prescriptive jurisdiction of other states has not been limited to academic discussions. Despite being raised unsuccessfully as an argument before the Permanent Court of International Justice (pcij) in the 1927 SS Lotus case, it continues to be raised before the International Tribunal of the Law of the Sea, the European Court of Justice, and national courts.53 Its sticking power as an issue of contention requires consideration.
In a dispute concerning the collision of two vessels on the high seas, the French Government argued that it alone had exclusive jurisdiction that barred the exercise of objective territorial jurisdiction by the Turkish Government:
[A]rguments advanced by the French Government, other than those considered above, are, in substance, the three following:
[. . .]
(2) International law recognizes the exclusive jurisdiction of the State whose flag is flown as regards everything which occurs on board a ship on the high seas.54
In general, the pcij’s reasoning on the right to extra-territorial prescriptive jurisdiction may now be dubious, whereby, unless restricted by a prohibitive rule, extra-territorial prescriptive jurisdiction is exercised as a matter of discretion.55 But it surely remains the correct approach to be applied to limitations on otherwise valid jurisdiction. Whilst one cannot presume a right that will infringe on the rights of other states (extra-territorial prescriptive jurisdiction), one may presume that, once established, that right is fully exercisable, subject only to explicit rules of limitation. After all, “limitation on sovereignty cannot be presumed”.56
Two distinct rights must therefore be demonstrable: that flag states have a right to jurisdiction, and that this is exclusive, to the prohibition of all others. Whilst this could be demonstrated in regards to enforcement on the high seas, the French Government failed to demonstrate such a limitation on prescription. The conclusion thus remains applicable that:
Apart from certain special cases which are defined by international law-vessels on the high seas are subject to no authority except that of the State whose flag they fly [. . .] But it by no means follows that a State can never in its own territory exercise jurisdiction over acts which have occurred on board a foreign ship on the high seas [. . .] This conclusion could only be overcome if it were shown that there was a rule of customary international law which, going further than the principle stated above, established the exclusive jurisdiction of the State whose flag was flown.57
The pcij used a similar approach to reject the existence of a specific rule on exclusivity in regard to collisions.58 Whilst this may have been overturned in the specific case of collisions and ‘incidents of navigation’,59 in regard to other situations the reasoning on limitations remains true.60 A valid prescriptive basis is equally valid on the high seas as any other part of the earth.
The question of which state should exercise jurisdiction over maritime incidents continues to play out in international tribunals, as demonstrated by the ongoing Enrica Lexie dispute. Here Italian ‘armed forces’ personnel, on board an Italian vessel as part of a counter-piracy contingent, shot and killed two Indian fishermen ‘some’ 20.5 nautical miles (nm) off the Indian coast.61 Both India and Italy claimed concurrent jurisdiction, with a further dispute on whether the Italian vessel was “by ruse or coercion” persuaded to go to Kochi port (i.e., whether extra-territorial enforcement jurisdiction was exercised by India).62
Before the Indian Supreme Court, the representative of the Italian marines and government appears to have unsuccessfully relied on an overly broad interpretation of Article 97 which would have included homicides in “incidents of navigation”.63 To this mix was added flag state exclusivity, although without elaboration. Referring to the overruling practice that followed Lotus,64 this had:
overruled the application of the principles of concurrent jurisdiction over marine collisions. Mr. Salve urged that a reading of Article 91, 92, 94 and 97 of unclos clearly establishes that any principle of concurrent jurisdiction that may have been recognised as a principle of Public International Law stands displaced by the express provisions of unclos.65
In its claim before the itlos for provisional measures, Italy claimed India had breached the losc by arresting and detaining the vessel, interfering with Italy’s freedom of navigation and exercising jurisdiction over the incident “notwithstanding Italy’s exclusive jurisdiction”.66 Primary reliance is placed on its ‘exclusive’ jurisdiction, with Article 97 also still raised. The host of losc Articles apparently breached by India, as per Italy’s claim, includes Article 92 on the exclusive jurisdiction of flag states.67 Unlike in Lotus, where France tried to claim exclusive prescriptive jurisdiction, Italy appears to be arguing that the exercise of enforcement by India has been limited by the losc, with only Italy having the right to take enforcement against extra-territorial crimes.68 This is not just exclusive enforcement jurisdiction on the high seas, but in relation to the high seas.69 This implies practical prescriptive exclusivity. At the time of the arrest, detention and commencement of criminal proceedings against the Italian marines, the vessel was in the port and therefore the territory of India. Nevertheless, Italy claimed:
By arresting, detaining, and exercising criminal jurisdiction over the Italian Marines, India violated and continues to violate Italy’s right of exclusive jurisdiction to entertain criminal proceedings in connection with the Enrica Lexie incident and against the Italian Marines contrary inter alia to Article 92 of unclos. The principle of exclusive jurisdiction of the flag State is derived inter alia from Articles 276, 56, 94, 97(1) and 97(3) of unclos.70
As a ruling on provisional measures, the itlos order essentially repeats the different positions before concluding that there is a dispute on the interpretation and application of the losc.71 As in the Indian Supreme Court case, reliance on Article 97 appears to be questionable, as it is rejected in the separate/dissenting opinions.72 On the question of primary or exclusive jurisdiction, the correct interpretation of Article 92 as only referring to enforcement jurisdiction on the high seas would support the Indian position.73 Barring facts covered by express provisions, losc Part vii is silent on settling concurrent high seas jurisdictional claims enforced outside the high seas.74 This is left to general international law—which apart from a loosely formulated test of reasonableness also appears open to state discretion/cooperation.75
The European Court of Justice (ecj) adopted a position on efsj which incorporates prescriptive jurisdiction, most notably in the Poulsen decision.76 The relevant question raised was whether a technical fisheries measure in a European Council regulation could be applied to nationals of a European Member State aboard a foreign-(Panama)flagged vessel, or to the vessel itself whilst on the high seas. Whilst proposing the ‘unlimited’ jurisdiction of port states for territorial or coastal zone violations, the disputed provision would not be applicable to foreign vessels on the high seas, as “in principle such a vessel is there only governed by the law of the flag”.77 Despite the discussion, no evidence or reasoning for such an interpretation of the efsj principle is presented.
Additionally, the Advocate General applied an even wider interpretation of efsj, limiting legislation with an extra-territorial effect on high seas conduct. In a similar manner to the ecj, a “prohibition must be imposed by the flag State, whose legislation is exclusively applicable to the activities of the vessel on the high seas”.78 However, the retention on board of fish caught on the high seas is so intimately linked to the high seas fishing itself, that rules prohibiting the retention on board whilst crossing the coastal state maritime zones, or entering the port, would also be prohibited.79
Although not in a case on the law of the sea, this argument resurfaced, by analogy, in the ataa case, where an emissions trading scheme (ets) would apply to all flights arriving or departing in the European Union (eu) territory.80 Thus it could take into account emissions throughout the flight, including over the high seas. The claimants suggested, by analogy to vessels, that “aircraft overflying the high seas are subject to the exclusive jurisdiction of the country in which they are registered, save as expressly provided for by international law”.81 Given that this ets would have been enforced in the eu territory, this claim must have rested on an interpretation of exclusive prescriptive jurisdiction. Although the Advocate General rejected this argument for lack of evidence, (indeed Germany, France, the uk and Norway all disputed such a principle for aircraft in customary law), the Advocate General accepted this exclusivity insofar as vessels are concerned.82 The clear distinction in treatment between ships and aircraft in the codified law of the sea led the Advocate General to dismiss efsj as irrelevant for customary aviation law. The ecj, in one paragraph, took a similar approach, referring to Poulsen.83 Although not explicit on whether it was discussing enforcement or prescription, the fact that no high seas enforcement is at issue, and the positive reference to Poulsen, suggest the ecj was including prescription in its discussion. Otherwise, the distinction between an infringement of efsj and the question of a customary basis to exercise jurisdiction makes little sense.
In the port state literature, the case of Sellers v Maritime Safety Inspector84 has received great attention. Briefly summarized, unilateral radio and emergency equipment conditions were imposed on vessels (including foreign-flagged vessels) departing from port for any place “outside” New Zealand.85 The Court of Appeal quashed the conviction of Mr Sellers for a failure to comply, as, amongst others, the construction, design, equipment and manning (cdem) standards legislation was “to have an effect on the high seas”, contrary to efsj. This is not only extra-territorial prescription being prohibited, but extra-territorial effects prescription. The decision has been heavily criticised for its interpretation of losc Articles 25, 211, and the territorial nature of the port state jurisdiction.86 But critique has not focused on the Court’s understanding of efsj,87 which, as is evident below, is also arguably incorrect.
As can be seen, attempts to grapple with the question of port state extra-territoriality and the efsj principle raise various jurisdictional questions. These can be grouped into three general inquiries:
- Does efsj operate as a legal limitation on the prescriptive jurisdiction of ports, or is it a historical preference for only flag states extending their laws to vessels on the high seas, and thus a matter of waning comity?
- From the flag state perspective, are their rights being ‘diluted’, ‘eroded’ or subjected to ‘creeping’ jurisdiction by port states, as some suggest, or, again, is it only the facts on the ground that are changing as more states exercise concurrent jurisdiction?
- The international community as a whole, and not just flag states, have a stake in the balance of interests, and jurisdictional balance that is established by the losc.88 As port states push the boundaries of what is ‘territorial’, are they straining the boundaries of the law of the sea, with the division of maritime zones and distinct jurisdictional principles, such as flag state exclusivity?
The essence of these theoretical debates rests on the content of ‘exclusive flag state jurisdiction’. As will now be seen, one interpretation removes the troubles alluded to, and it is suggested that the principle is restrictively discussed in future literature—particularly in relation to port states where it has little or no relevance.
As demonstrated, efsj has been suggested in a number of scenarios as being a legal limitation on otherwise valid state jurisdiction in connection with activity on the high seas. Discussions on port state jurisdiction have not escaped this trend. This part argues that the efsj principle is solely concerned with enforcement jurisdiction exercised on the high seas (and in the eez, as applicable). When restrictively interpreted, which as a limitation on state jurisdiction and sovereignty it should be,89 the principle appears to be a red herring for the jurisprudence and literature on maritime jurisdiction. It neither entails exclusive prescriptive jurisdiction for the flag state (France: SS Lotus), nor exclusive flag state enforcement jurisdiction in relation to (as opposed to on) the high seas (Italy: Enrica Lexie). We review the conditions ‘exclusive’ and ‘jurisdiction’, in turn, to reach as accurate an interpretation of efsj as possible.
Article 92 is not the only ‘exclusive’ jurisdiction provided for in the losc. Coastal states are also granted exclusive jurisdiction in relation to artificial islands, installations and structures.90 Clearly, ‘exclusive’ certainly provides primacy, to the effect that the ‘exclusive’ state shall have the right to apply its jurisdiction, to the detriment of any other state who might have had the right to concurrent jurisdiction. In regard to Article 92, the qualification “save in exceptional cases expressly provided for in international treaties or in this Convention”, means that this rule of primacy operates as a rebuttable presumption. Therefore, flag state jurisdiction shall apply as a limitation on another’s jurisdiction, unless one of the ‘exceptional cases’ applies, or the state can establish that a new exception has emerged. As Rayfuse highlights, the “burden of establishing such contrary rules or exceptions will, however, be high”.91
As a limitation, it is theoretically possible that a relationship could be established between extra-territorial port state jurisdiction rights, and flag state exclusivity limitations. However, due to the scope of ‘jurisdiction’ in Article 92, it is suggested that no such relationship exists, and it is here that differing interpretations arise.
“A reading of the Convention on the High Seas in its pristine, black-letter absolutism would be seriously misleading with respect to the balance actually provided in international law for allocation of the competence to apply authority.”92
The treaty articles on efsj are not only misleading in respect of the lack of reference to customary law exceptions (MacDougal and Burke), but also through their use of the term ‘jurisdiction’ without qualification or definition. Jurisdiction terminology is used throughout international law, often for different purposes and with different meanings.93 If you accept this paper’s position, this is so even in the losc, where the unrefined term ‘jurisdiction’, as a flag state duty, is wider than exclusive jurisdiction as a right (because Article 94(3)–(4) entails prescriptive duties, whilst Article 92 only entails enforcement exclusivity). It is likely that suggestions that efsj includes prescriptive exclusivity, or that the mere extra-territorial prescription by port states will weaken flag state exclusivity, are based on an absolute interpretation of Article 92.
However, as is convincingly covered and stated by arguably the majority in academia, the ‘jurisdiction’ of exclusive jurisdiction concerns enforcement jurisdiction only.94 Several authors are explicit in this regard.95 For others, it can be implicitly taken from the way in which they discuss the exceptions, as exceptions to a prohibition on the exercise of extra-territorial enforcement.96 This is also recognisable in case law, such as the Arctic Sunrise Arbitration, although not explicit.97 Article 92 is simply silent on non-flag state prescription.98
If one looks beyond the wording of Article 92, to the zonal system of Part vii, it is evident that efsj is solely concerned with enforcement. Article 92 refers to the exceptions “expressly provided for”, but in the losc these are exceptions of an enforcement nature, notably Articles 105 (piracy), 109(4) (unauthorized broadcasting), 110 (right of visit, in respect of defined activities), 111 (hot pursuit), 221 (maritime casualties or “related” acts, reasonably expected to result in major harmful consequences), and 220(3–6) (various degrees of eez pollution).99 In the fisheries context, additional examples may be found in the Fish Stocks Agreement, Articles 21 and 22.100 As treaty-based rights to high seas enforcement, these are expressly provided for as such.101 This is in notable contrast to non-flag jurisdiction in relation to, but not enforced upon, the high seas, such as port states in Article 23, which have a right to jurisdiction under customary international law, and expressly not the losc.102
By way of example, the primacy of enforcement in these principles is evident when one reviews the hot pursuit exception, which provides for extended coastal state enforcement jurisdiction onto the high seas. Unlike other examples of non-flag jurisdiction, it provides no right of high seas prescription (which the other exceptions presuppose).103 Hot pursuit is established on the basis of violation(s) of territorial, or quasi-territorial, or functionally proscribed laws that are applicable to maritime zones under national jurisdiction. It is an ‘exceptional’, and clearly defined, right of enforcement on the high seas. As an exception to exclusive flag state enforcement, it extinguishes at the boundaries of exclusive flag state enforcement jurisdiction, i.e., foreign territorial waters.104 If flag state enforcement flows from its sovereignty,105 and non-flag enforcement from consent, a flag state cannot provide a jurisdictional right exception greater than its own authority, and thus clearly cannot provide for non-flag enforcement in foreign territorial waters, where it has itself no enforcement rights.
What is more, this exclusivity only extends to the exercise of non-flag state enforcement, when exercised on the high seas.106 Port states could therefore by definition not raise any legal relationship with efsj, whether prescribing or enforcing.107 The exclusivity principle attaches to the location of the vessel, and is therefore not only limited spatially (high seas), but temporally (when sailing ‘on’ the high seas). In contrast, the exercise of enforcement jurisdiction is spatially and temporally defined, for the purposes of analysing state enforcement jurisdiction, by the enforcement action (port state measures exercised in the internal waters), at the time of enforcement (when the vessel is located in internal waters). The location of the prohibited conduct by the vessel is irrelevant for the purposes of enforcement jurisdiction.
Thus the port state could exercise extra-territorial prescription, such as provided by Article 218, and be prohibited from taking any enforcement measures against the vessel whilst it is on the high seas. However, once in the port state territory, the efsj principle no longer applies, and enforcement can occur. This is why, strictly speaking, extra-territorial port state jurisdiction, of a residual, or Article 218 based nature, should not be treated as an ‘exception’ to flag state exclusivity.108 This was captured by Rayfuse in her work on non-flag state enforcement, and the distinction of port state enforcement from other direct enforcement actions on the high seas.109
This conclusion is supported by the losc, and other treaties, which implicitly, or explicitly suggest extra-territorial prescriptive jurisdiction on the high seas in addition to any high seas enforcement exceptions.110 If efsj were to include prescription, the wording, ‘persons subject to its jurisdiction’, when discussing prescriptive jurisdiction over damage to submarine cables and pipelines, could hardly be seen as an explicit ‘exception’.111 Subsequent practice would include the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (sua), which, by placing legislative obligations on state parties, implies prescriptive jurisdiction in relation to high seas conduct.112 This includes passive personality (6(2)(b)), nationality (6(1)(c)) and protective jurisdiction (6(2)(c)), whilst safeguarding exclusive high seas flag state enforcement.113 Another example could be the psma, which calls on states to “use all available jurisdiction in accordance with international law” to combat iuu fishing.114
Finally, undisputed state practice, prescribing laws for vessels or crew, including on the high seas, has followed suit.115 It is subsequent practice involving at-sea enforcement that is viewed as novel exceptions.116 When the issue has been raised in discussions at international organisations, a restrictive interpretation of efsj is applied. This can be seen in a Japanese submission before the Legal Committee of the International Maritime Organization, where a lack of domestic legislation was the discussion point of inadequate responses to high seas crimes committed aboard foreign-flagged vessels.117 A right to prescriptive jurisdiction is presupposed, and the proposal considers whether enforcement obligations should be imposed on non-flag states, notably port and coastal states.118
Unlike the efsj exceptions discussed above, which grant enforcement jurisdiction, losc Article 97 limits enforcement jurisdiction in relation to collisions and ‘incidents of navigation’ on the high seas.119 As it is not concerned with at-sea enforcement, it is not an exception to efsj, but rather demonstrates the position of extra-territorial prescription (in relation to high seas conduct), territorially enforced. It thus provides supporting evidence for two reasons.
First, although Article 97(1) explicitly discusses nationality (i.e., non-flag state) jurisdiction, this is as a limitation on other non-flag states, and not as an exception to Article 92; “no penal or disciplinary proceedings may be instituted against such person except before [. . .]”.120 If efsj included prescriptive jurisdiction, Article 97 would be superfluous, as no such right would exist for other states in the first place. If it was otherwise, surely Article 97 would be framed as a right, consistent with the other provisions of Part vii.
Second, Article 97 confirms that Article 92 is solely concerned with enforcement jurisdiction exercised on the high seas. In Article 97(3) a limitation is imposed on territorial enforcement, in relation to high seas conduct: “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”.121 Again, this would be superfluous if efsj already limited prescriptive jurisdiction, or territorial enforcement in relation to the high seas. It therefore implies that in cases not related to collisions or other incidents of navigation, non-flag states are not subject to additional limitations under Articles 97 or 92.
Once codified, the customary principle of efsj has had a steady and uniform history.122 The International Law Commission (ilc) Draft Articles, Articles 30–31, ‘Status of ships’ and ‘Ships sailing under two flags’,123 became a single Article 6 with the 1958 hsc. losc Article 92 followed, with minimal alteration.124
Whereas the Draft Articles themselves do not provide further guidance,125 this consistent drafting history, and in particular its commentary, emphasizes the role of efsj, and the freedoms of the seas, as the two interlinked and foundational principles of the high seas regime. Part vii is a functional regime, focused on “global navigation and communication” in Section 1, and on natural resources with Section 2.126 Apart from Article 117, all provisions discussed above are found in Section 1 and thus the central focus of efsj is the protection of the freedoms for all states. As Poland submitted in 1955, before discussing enforcement exceptions, “[f]rom the principle of freedom of the seas it follows that only the state to which a given ship belongs has the right to extend its jurisdiction over it on the high seas”.127 This is reiterated in the ilc Commentary; “The absence of any authority over ships sailing the high seas would lead to chaos. One of the essential adjuncts to the principle of the freedom of the seas is that a ship must fly the flag of a single State and that it is subject to the jurisdiction of that State”.128
The ilc Commentary similarly points to at-sea enforcement exceptions.129 Clearly, unrestricted enforcement on the high seas, where no territorial state has exclusive enforcement jurisdiction, would have seriously undermined the exercise of such freedoms. In the interests of the international community, enforcement jurisdiction has been vested exclusively with the flag state, subject to internationally recognised exceptions. But, assuming this is not exhaustive, is there anything in this rationale of efsj to suggest that exclusive jurisdiction extends beyond non-flag enforcement on the high seas?
When one looks to the freedoms, their scope only rationalises a limitation on non-flag state high seas enforcement. To go further would require evidence that the freedoms contained in Article 87 extended beyond enjoyment on the high seas maritime zone. Yet the itlos has consistently ruled to the contrary, stating that Articles 87 and 90 only apply on the high seas.130 In the port state context, the freedoms provide no “right to leave the port and gain access to the high seas”.131 Indeed quite the opposite is true. A lack of extra-territorial prescription applicable to the high seas, and enforced, e.g., by port states, has been raised as having ‘negative effects’ on the global maritime transport sector, i.e., the sector such freedoms are supposed to benefit in the interests of all.132
Therefore, although sufficient evidence exists for the conferral of absolute jurisdiction on flag states, and, subject to recognised exceptions, an exclusive right to enforcement on the high seas, no rationale is found for the interpretations of efsj proposed in the first half. It would, after all, be on the state additionally claiming exclusive prescription and/or exclusive territorial enforcement in regard to the high seas to demonstrate that such a limitation on the jurisdiction of other states existed.
“While international lawyers often employ the term ‘jurisdiction,’ and most of them have an inkling of what it means, defining jurisdiction is hardly self-evident”.133
The difficulty, and resulting dangers, are two-fold when discussing the relationship between concurrent jurisdictions. This has been witnessed with ‘exclusive flag state jurisdiction’, and its staying power as a relevant factor for consideration in limitations to port state extra-territoriality, or the evolutionary effects of increasing port state practice. This is despite the pcij’s dismissal of the issue in this context, some 88 years ago.
So what does efsj mean for port states? Apart from the very restricted exceptions of Article 97, and cases of immunity,134 there is no formal conflict of laws. The port is left with almost unlimited legal discretion by the losc. Unlike coastal states, which in return for jurisdictional rights had to accept significant jurisdictional limitations, for the benefit of flag states and the broader international community, port states look to general principles of jurisdiction for power. Should ports be able to squeeze regulation into the loosely defined principles of jurisdiction, a flag state will find no solace in raising efsj.
And what does port state jurisdiction mean for flag state jurisdiction? Talk of efsj in this context is a red herring, and for the sake of legal clarity should be avoided. As a distinct legal principle, inapplicable in the port state context, it is unhelpful to raise this as being weakened by psj, or to weaken extra-territorial psj. The increase in concurrency of jurisdiction will not be felt in the international law discussed, but rather factually in the flag-port power balance, and in the lives of vessel operators.135 The historical presumption that only flag state law applies will be eroded, as port states decide to dispense with previous considerations of comity, and to regulate extra-territorial conduct and increase their influence on behaviour around the globe.
Perhaps it is rather peculiar to write an article on port state jurisdiction and efsj that argues that we need not discuss port state jurisdiction and efsj together. But it is hoped that by doing so others will not fall into the same difficulties experienced by the author in trying to reconcile mutually exclusive legal principles. Better clarity is required on both fronts. Discussions of efsj should be more restrictively applied. It appears that no limitation on the prescriptive jurisdiction of other states is inferred, and no limitation on the exercise of territorial enforcement is inferred—no matter what the high seas nature of the act is, or the actor’s flag state. Port state literature needs equal clarity, not raising a legal term which is largely irrelevant and perhaps over-emphasising the innovative effects of expansive port state jurisdiction. If one cannot look to this losc limitation as a jurisdictional ‘brake’, the true debate is much more fundamental: what is the scope of the jurisdictional rights of the port state in the first place, and what limitations could a flag state raise when challenging perceived abusive territorial jurisdiction?
International Law Commission, ‘Articles Concerning the Law of the Sea with Commentaries’, Yearbook Of The International Law Commission, 1956, Vol. ii 265–301, at pp. 279–280, available at http://legal.un.org/ilc/texts/instruments/english/commentaries/8_1_8_2_1956.pdf, accessed 30 May 2016.