NATIONAL SOVEREIGNTY AND "WAIVERS

1. Premise on the Sovereignty of Waters

Since ancient times, it has been a concern for states to protect their "maritime" territories, given that, unlike their terrestrial geography, they have been more vulnerable to the presence of foreign vessels. However, history also indicates that hegemonic powers throughout time have advocated the doctrine of the "free seas," according to which seas could not be subject to appropriation because they were not susceptible to occupation like land.

This doctrine began to be challenged in the 18th century when the principle was established that the sea adjacent to a country's coast falls under its sovereignty. The extent of this strip has varied over time, starting with an initial rule that fixed it at three nautical miles, known as the "cannon-shot rule," up to the current 200 miles. Today, major international treaties recognize the sovereignty of states over their contiguous waters, with differing criteria ranging from 12 to 200 miles.

As a consequence of recognizing national sovereignty over territorial waters, two significant rules emerged in the majority of countries: a) The principle that territorial waters are reserved for vessels flying the national flag. b) The criterion that these vessels must predominantly or entirely be manned by national crew members.

The considerations expressed provide context for the complaint outlined below.

2. Law 17,033 of 20/11/1998: The Defense of Maritime Sovereignty The defense of our country's sovereignty over its territorial sea has been recognized through successive laws, culminating in the current Law 17,033 of 20/11/1998, which establishes three zones of maritime sovereignty: a) Twelve nautical miles corresponding to the width of the Republic's territorial sea (Article 1). b) A second zone from twelve to twenty-four nautical miles, in which the Republic shall adopt measures to prevent violations of its customs, fiscal, immigration, or sanitary laws and regulations that may occur in its territory or territorial sea and to penalize violations of those laws and regulations committed in its territory or territorial sea (Article 3). c) Finally, an exclusive economic zone of the Republic is established, extending from the outer limit of the territorial sea to a distance of two hundred nautical miles (Article 4).

Article 2 of the law states that within the twelve-mile strip of the territorial sea (a), the right of innocent passage for vessels of all states will be recognized, provided it is conducted in accordance with the United Nations Convention on the Law of the Sea of December 10, 1982 (hereinafter "the Convention"), other international law norms, and the laws and regulations issued by the Republic as a coastal state.

With respect to the 200-nautical-mile zone, Article 5 establishes that the Republic has sovereign rights in the exclusive economic zone for the purposes of exploration, exploitation, conservation, and management of natural resources, both living and non-living, in the waters above the seabed, the seabed itself, and its subsoil, as well as concerning other activities aimed at the economic exploration and exploitation of the zone, such as the production of energy derived from water, currents, and winds.

3. Law No. 12,091 of January 5, 1954 For over seven decades, our country's policy has clearly established that the sovereignty of its territorial waters is complemented by the requirement that ships flying the national flag and crews consisting of Uruguayan citizens, whether natural or legal, work and operate within this territory.

Thus, in January 1954, Law No. 12,091 was enacted, establishing two clear principles on this matter: a) Coastal navigation is reserved for vessels flying the national flag (Article 1). b) Coastal navigation must reserve a certain percentage of positions for natural or legal Uruguayan citizens (Article 4), a rule inspired by Article 53 of the Constitution: "Labor is under the special protection of the law. Every inhabitant of the Republic, without prejudice to their freedom, has the duty to apply their intellectual or physical energies in a way that benefits the community, which will seek to provide citizens with the opportunity to earn their livelihood through the development of economic activity."

As with any rule, there are exceptions. Article 309 of Law No. 14,106 of March 14, 1973 (Budget Law) added the following provision to Article 1 of Law No. 12,091: "The Executive Power may authorize, exceptionally, the use of foreign-flagged vessels in these operations when no nationally-flagged vessels are available."

The law establishes two requirements: a) The exceptional nature of the authorization ("may authorize exceptionally…"); and b) The unavailability of nationally-flagged vessels.

Finally, it should be noted that the authorization established in the second paragraph of Article 1 of Law No. 12,091 was delegated by the Executive Power to the National Naval Prefecture (Resolution 751/006).

4. Law No. 18,498 of June 12, 2009 This law is essential to reference because Article 2 specifies how the crews of national merchant vessels must be composed. The law states: "(Crew Composition). - The crew of national merchant vessels shall be composed as follows: A) Ninety percent (90%) of the officers, including captain, chief engineer, and radiotelegraph operator, must be natural or legal Uruguayan citizens. B) No less than ninety percent (90%) of the rest of the crew must be natural or legal Uruguayan citizens."

The law complements and expands upon what Law No. 12,091 already expressed regarding the requirement for national crews on national vessels, providing precise percentages.

It should be clarified that, regarding Article 2 of this law, the National Naval Prefecture has stated: "Regarding the crews of foreign-flagged vessels that operate under the authorization of the National Naval Prefecture pursuant to Law No. 12,091, they are not required to comply with Article 2 of Law No. 18,498 because it is the flag state that determines the composition of its crew, and the law is clear that this requirement applies to national merchant marine vessels" (Note PRENA 108/23 of October 18, 2023, addressed to the Maritime Interunion).

We will revisit this point in the "Conclusions" chapter.

5. Law No. 19,078 of May 3, 2013 In alignment with the principle that maritime labor should be reserved for national crew members, Law No. 19,078 of May 3, 2013, was enacted, titled "Modification of the procedure for calls for bids on national or binational works or by national and international agreements." The law states in its sole article:

For calls for bids on national or binational works or by national and international agreements within the jurisdictional and territorial waters of the Oriental Republic of Uruguay, conducted by public bodies or decentralized entities, all interested companies meeting the requirements specified in the tender documents or the agreement resulting from the corresponding international conventions may participate.

The awardee required to use dredges of any type and support vessels for the work to be performed must register their vessels in accordance with Law No. 16,387 of June 27, 1993, making Law No. 12,091 of January 5, 1954, and its regulatory decree applicable.

The vessel registration requirement mentioned in the previous paragraph shall not apply when the execution of the contracted work has a duration of up to fifteen months, extendable by up to three additional months, is declared by the Executive Power as necessary for achieving the objectives of the national logistics system's development, and fulfills the condition that 90% of the officers and 90% of the crew are natural or legal Uruguayan citizens.

However, in this latter case, through an agreement between the most representative organization of workers in the sector and the awardee company, alternative quotas of natural or legal Uruguayan citizens different from those specified in the preceding paragraph may be agreed upon. This agreement must be ratified before the National Directorate of Labor of the Ministry of Labor and Social Security, failing which it will be nullified. Under such circumstances, the awardee may maintain its flag of origin.

The crews referred to in the previous paragraph are those stipulated in Group 13, Subgroup 9 of the Wage Councils (*).

This law therefore establishes a specific exception to the rule of requiring national vessel registration for operation in our waters: the Executive Power may declare that national registration is not required for vessels in cases deemed necessary to achieve the objectives of the national logistics system's development. This exception has a time limit: 15 months, which can be extended by an additional 3 months (paragraph 3). However, the same paragraph 3 stipulates that the foreign company granted the authorization must meet "the condition that 90% of the officers and 90% of the crew are natural or legal Uruguayan citizens" (paragraph 3).

In other words, the text of the law balances the possibility of foreign-flagged vessels operating in territorial waters with the reasonable counterweight of having a substantial proportion of national (natural or legal) citizens among the crew.

6. The So-Called "Waivers" As noted earlier, Article 309 of Law No. 14,106 of March 14, 1973, added a provision to Article 1 of Law No. 12,091, empowering the Executive Power to authorize "as an exception" the use of foreign-flagged vessels when nationally-flagged vessels are unavailable. In turn, the Executive Power delegated this authority to the National Naval Prefecture through Resolution 751/006.

The term "waiver" precisely refers to the authorizations granted by the National Naval Prefecture—under delegated powers from Resolution 751/006—for foreign ships to operate in national waters. As foreign-flagged vessels, they can recruit seafarers from their own flag state or from any other nationality, as indicated in Note PRENA 108/23 of October 18, 2023, cited in Section 4 of this text.

This situation is permitted under national laws but—as stated—only as an exception, as stipulated in the aforementioned Article 309 of Law No. 14,106. The principle, established by Law No. 12,091, remains that activities in territorial waters are reserved for vessels flying the national flag, which, under Law No. 18,498, must be crewed by the percentages of Uruguayan seafarers specified therein. To circumvent the principle, exceptions of a legal nature can only be established, such as those in Law No. 19,078 or exceptional authorizations. However, in the Uruguayan case, the exception has undermined all rules or principles, as will be highlighted below.

7. Reliable Data on Waivers In response to a request from a representative of the Maritime Interunion (Dr. Alvaro Lamas), who sought public access to information regarding the number of exceptions to the National Flag ("waivers") and the duration of authorized operations during the period 2022–2024, the National Naval Prefecture provided Note No. 128 of September 10, 2024, which is appended as Attachment 1. A simple reading of the note is striking due to its scope: during the period January 10, 2022, to August 22, 2024, the National Naval Prefecture granted 231 authorizations or waivers to vessels flying various flags.

Today, dozens of ships operate in our waters under flags from diverse countries such as Liberia, Luxembourg, Portugal, Marshall Islands, Malta, Singapore, Bangladesh, Mauritius, Panama, Denmark, Cyprus, and others. The national maritime area—which should be reserved for vessels flying the national flag and for national workers or predominantly national workers—has become the workplace for hundreds of foreign workers, relegating Uruguayan workers to unemployment.

Our Maritime Interunion has quantified the impact of these "exceptions" on the employment of national crew members, as detailed in Attachment 2. This attachment indicates, for each authorization, the duration of days the vessel was authorized, the number of operational hours, the number of crew members, and the total hours worked by the crew. The data recorded in Attachment 2 yield the following results for the period January 2022 to August 2024: a) Total duration of authorized days: 20,382 b) Total duration of operational hours: 489,168 c) Total hours of work performed: 4,891,680 d) Total number of worker positions: 4,060

These numbers clearly demonstrate that maritime labor has been "foreignized" and that millions of work hours—in the brief period from January 2022 to August 2024—were performed by foreign workers, severely disrupting the principle that national workers should work on vessels operating in territorial waters.

7. Conclusions The data provided in Attachment 1 (derived from a genuine and direct source, Note No. 108 of September 10, 2024, from the National Naval Prefecture) and the quantification of lost work hours for national crew members detailed in Attachment 2 show that our country has ceded the sovereignty of maritime operations in its waters to foreign-flagged vessels. The rule that prevails in all countries—and in ours, under Law No. 12,091—that navigation in national waters is reserved for vessels flying the flag of the sovereign country of the maritime territory, is now nullified in Uruguay.

The daily authorizations granted to foreign vessels have transformed our maritime domain into a workplace for convenience flags from other countries, depriving national crew members—trained in our educational institutions (Naval School and UTU's Superior Technical Maritime School)—of their right to work in national waters.

The authorizations granted by the National Naval Prefecture have effectively established a "second registry" or a registry of convenience flags in our territorial waters, where vessels from any country can operate with their own crew, taking jobs from national workers and relegating them to unemployment.

We believe the current situation not only relegates trained national workers from our schools to unemployment but is so severe that it marks the loss of national sovereignty over our waters, which have become operational territory for vessels from any country in the world.

This is a national problem that must be urgently addressed by national authorities, social actors, and organizations linked to maritime activities. Until that happens, we will continue to increasingly alienate our maritime sovereignty.