The Four Freedoms of the High Seas

The Four Freedoms of the High Seas

The Convention on the High Seas, adopted at the Geneva Conference in April 1958, defined the positive aspect of the freedom of the seas by recognizing four fundamental freedoms, as follows:

• Freedom of navigation.
• Freedom of fishing.
• Freedom to lay submarine cables and pipelines.
• Freedom of overflight above the high seas.

The Convention expressly states that these freedoms directly derive from the general principle of the freedom of the seas.

Freedom to Lay Submarine Cables and Pipelines

It should be noted that, as emphasized in the final sentence of Article 2 of the Convention, the enumeration of these four freedoms is not exhaustive.

The International Law Commission clarified in its commentary accompanying the draft articles that it did not intend to provide a comprehensive and exclusive definition of the freedoms of the high seas.

The principle of the freedom of the seas may encompass additional freedoms, such as the freedom to conduct scientific research and the freedom to explore or exploit major marine resources. However, with respect to the freedom to conduct nuclear tests at sea, the International Law Commission refrained from addressing this controversial issue to avoid interference with the work of the scientific committee established by the United Nations on 3 December 1955 for this purpose.

During the negotiations of the Geneva Conference, several States requested clarification of the scope and content of the four freedoms of the high seas. Consequently, the Second Committee of the Conference adopted a proposal submitted by the United Kingdom as a supplement to Article 2.

This supplementary sentence provides that these freedoms, as well as other freedoms compatible with the general principles of international law, shall be exercised by all States with due regard for the interests of other States in the exercise of the freedom of the seas.

By incorporating this provision, the principle of equality in the use of the seas, which constitutes one of the core elements of the broader principle of the freedom of the seas, was formally introduced into positive international law.

The Right of Communication and Navigation

Article 4 of the Geneva Convention recognizes the right of all coastal and landlocked States to sail ships flying their flag on the high seas. Among the four freedoms, this right is of primary importance, as the exercise of the other freedoms depends on it.

The freedom of navigation is not limited to coastal States. Landlocked States that lack direct access to the sea, as well as intergovernmental and international organizations, may also benefit from this right.

Regarding vessels belonging to international organizations, a complex legal issue arises. Generally, a vessel flying the flag of a State falls under the judicial jurisdiction of that State. However, international organizations do not possess the attributes of a sovereign State and lack independent judicial systems.

To address this issue, several solutions have been proposed. One approach suggests that vessels flying the flag of the United Nations or another international organization should sail under two flags: one, the flag of the international organization, and the other, the flag of a member State whose laws would apply to the vessel and confer jurisdiction on that State. Another proposal involves the Secretary-General of the United Nations concluding special agreements with one or more member States for jurisdictional purposes.

Nevertheless, neither the International Law Commission nor the Geneva Conference expressed a definitive position on this matter. As a result, vessels flying the flag of the United Nations have remained in a legally uncertain position, as they have not been clearly subject to any specific national jurisdiction.

Freedom of Fishing

According to a longstanding practice dating back to Grotius, freedom of fishing has been regarded as an inherent element of the general principle of the freedom of the seas.

The recognition of freedom of fishing as one of the four fundamental freedoms in the Geneva Convention, based on a proposal by the International Law Commission, codified and confirmed a right that had long been accepted under customary international law.

However, an important point warrants note. Certain maritime States, led by the United Kingdom, consider freedom of fishing inseparable from freedom of the seas, viewing the two as inherently connected. Other States, particularly those in South America, dispute this view and question whether there is a direct causal relationship between freedom of the seas and freedom of fishing.

These differing perspectives were extensively reflected both in the deliberations of the International Law Commission and the Geneva Conference, as well as in the written observations submitted by States in response to the Commission’s draft articles.

Freedom to Lay Submarine Cables and Oil Pipelines

The freedom to lay submarine cables and oil pipelines is expressly provided for in paragraph three of Article 2 of the Geneva Convention on the High Seas. This freedom has not given rise to significant legal controversy. Since the mid-nineteenth century, the international community has implicitly or explicitly accepted the right of all States to lay cables and pipelines on the seabed freely.

Freedom of Overflight Above the High Seas

The inclusion of the freedom of overflight, which is more commonly associated with air law, in a maritime law convention may appear unusual. However, the International Law Commission and the Geneva Conference were justified in including it among the freedoms of the high seas, as maritime law and air law are closely interconnected in many respects.

The Commission’s report clarifies that the freedom of overflight above the high seas is explicitly mentioned because it directly derives from the principle of the freedom of the seas. Nevertheless, although it established this principle in Article 2, paragraph 4, of the Geneva Convention, the Commission refrained from addressing detailed aspects of this freedom to avoid encroaching on the domain of air law.

Frequently Asked Questions About the Four Freedoms of the High Seas