232.
The reference in the draft to the United Nations Convention on the Law of the Sea was not considered appropriate by some delegations as that convention, after its entry into force, might not be binding on all Parties to the present instrument. Divergent views were expressed regarding the use of the expression "high seas" in paragraph 3. Some representatives were in favour of retaining that term while others objected to it and deemed it preferable to rely on the concept of territorial sea or waters. In lieu of the term "high seas" the Group agreed to refer instead to the area "beyond the external limits of the territorial sea", without prejudice to any rights enjoyed by the coastal State seaward of those limits. Some representatives recalled the existence of a contiguous zone in which States had exclusive rights in respect of matters relating to customs, taxation, health and immigration. The Group agreed that the reservation concerning the rights of the coastal State in the new text included that zone. Some representatives expressed reservations with regard to this formulation, in view of the fact that, as signatories of the United Nations Convention on the Law of the Sea, they would construe and implement the provisions of this article in a way compatible with their obligations under that instrument.
233.
The Group approved the proposal made by several representatives that with regard to vessels flying the flag of another Party, the prior consent of the flag State must be given before a vessel may be boarded, searched and seized. In the case of seizure, it was emphasized that this action should be contemplated only if evidence of the vessel being engaged in illicit traffic was discovered. Paragraph 3 was amended to reflect these requirements. In view of the inclusion of the requirement for prior permission, the reference to vessels flying the flag of the boarding State was considered superfluous, as a flag State had jurisdiction over its vessels in the situation envisaged in that paragraph. Similarly, reference to vessels not displaying a flag or markings of registry was unnecessary as the question of prior permission did not arise in such cases. Subparagraphs (a) and (c) were consequently deleted.
234.
It was pointed out that the authority to be designated by each Party, in accordance with paragraph 4, would not necessarily be competent to act upon. requests from another Party, but only to respond to them in an expeditious manner. The wording was amended accordingly. The Group also approved a proposal to amend the second and third sentences of paragraph 4 so as to indicate more precisely at what time the flag State should designate an authority to receive and respond to requests from other Parties for the purposes of paragraph 3, as well as the time limit for the notification of the designation to all other Parties.
235. The Group agreed to amend paragraph 5 so as to cover existing as well as future treaties, whether they be multilateral or bilateral. In conformity with the corresponding deletion made in paragraph 3, the Group agreed to delete subparagraph (a) referring to judicial requirements where the vessel in custody was flying the flag of the boarding State.
236.
The Croup approved a proposal to delete paragraph 6 as the provision which conferred to one Party alone the right to call in question an agreement or arrangement was not in keeping with international practice.
237. In order to emphasize and safeguard the overall interest of the flag State in any action undertaken pursuant to the provisions of the article, the Group agreed to add a new paragraph 6 to the effect that the flag State concerned should be informed of the results of such action.
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