Rendimiento Académico: Factores que inciden en los niveles de logro

Where foreign ships are in passage through the territorial sea, the coastal State may only exercise its criminal Jurisdiction in relation to the arrest of any person or the investigation of any matter connected with a crime committed on board ship in defined situations. Such situations are as enumerated in Article 27 (1) of the 1982 Convention on the Law of the Sea, which reaffirms Article 19 (1) of the 1958 Convention on Territorial Sea, Stating as follows:

a. if the consequences of the crime extend to coastal State; or

201J. McNair in Anglo-Norwegian Fisheries Case(1951) ICJ Reports pp.116, 160. The Beagle Channel Case(1977)HMSO;52 ILR p.93.

202M. N. Shaw, op cit.

84 b. if the crime is of a kind likely to disturb the peace of

the country or the good order of territorial sea; or c. if the assistance of the local authorities has been

requested by the master of the ship or by a diplomatic agent or consular officer of the country of the flag State; or

d. if such measures are necessary for the suppression of illicit traffic in narcotic drugs or psychotropic substances.²⁰³

However, if the ship is passing through the territorial sea having left the internal waters of the coastal State, then the coastal State may act in any manner prescribed/authorized by its laws for the purpose of an arrest or investigation on board foreign ship and is not restricted by the terms of Article 27 (1). On the contrary however the authorities of the coastal State

cannot act in a case on board a foreign ship proceeding from a foreign port, passing through the territorial sea to arrest any person or to conduct any investigation in connection with any crime where the crime in question was committed before the ship entered the territorial sea, provided the ship is also not entering or has not entered internal waters. Pursuant to Article 28 of the 1982 Convention, the coastal State should not stop or divert a foreign ship passing through its territorial sea for the purpose of exercising civil jurisdiction in relation to any person on board ship, nor levy execution against or arrest the ship, unless and until obligations are involved which were assumed or incurred

203The latter phrase was added by Article 27 (d) of the 1982 Convention.

85 by the ship itself in the course of, or for the purpose of, its voyage through waters of the coastal State, or unless the ship is passing through the territorial sea on its way from internal waters.²⁰⁴

As it relates to warships and other government ships operated for noncommercial purposes, they are immune from the jurisdiction of the coastal State as articulated in Article 27 (1) of the 1982 Convention. However, they may be required to leave the territorial sea immediately for any act in breach of the rules governing passage and the flag State will bear international responsibility in cases of loss or damage resulting from such act of breach.

i. Vessels in Ports

There has been a form of nagging question as to whether there exists an unhindered access of vessels to foreign ports. It has been argued that, as no civilized State has the right to isolate itself wholly from the outside world, there seems to be a corresponding obligation imposed upon each maritime power not to deprive foreign vessels of commerce access to all of its ports.²⁰⁵The argument in support of right of access of ships to foreign ports was based on the idea of an obligation to promote international commerce and free communication, as well as the idea that without free access to foreign ports, freedom of navigation would be meaningless.

It seems today that there is a clear customary international law right of entry into foreign ports by ships in distress in order to save human life. A ship does not however enjoy an absolute right to enter foreign ports or internal waters in order to save its cargo, where human life is not at risk, or if the gravity of the ship‟s situation is outweighed by

204M. N. Shaw, op cit, pp.511-12.

205L.Henkinet al, op cit, p.1272.

86 the probability, degree and kind of harm to the coastal State that would arise were the ship allowed to enter. It appears to be a well settled rule of customary international law that a ship entering a foreign port by reason of force majeure or distress may claim as of right entire immunity from the local jurisdiction. Example, when the ship was driven by storm, carried in by mutineers, or sought refuge for repairs or provisioning. In that case, port State should not take advantage of its necessity. In the words of A V Lowe,²⁰⁶ “all merchant ships in distress have a right to enter the ports of a foreign State. This right is grounded on humanitarian consideration” and comes as a matter of grace.The Convention does not however, mention the right of access of ships to foreign ports, but the customary law on the subject matter includes a number of international agreements and has been confirmed by at least one international decision.²⁰⁷

The trend used to be that in time of peace, commercial ports must be left open to international traffic, and that the liberty of access to ports granted to foreign vessels implies their rights to load and unload their cargos; embark and disembark their passenger. Although it has been argued that they were no precedents showing that the law of nations accorded an unrestricted right of access to harbours by vessels of all nations,²⁰⁸ it seemed then that the ports of a State which were designated for international trade were in the absence of any express provisions to the contrary made by a port State, presumed to be open to the merchant ships except when the peace, good order, or security of the coastal State necessitated closure.²⁰⁹

206„The Right of Entry into Maritime Ports in International Law‟ (1977) San Diego L. Rev. 597,610.

207R v. Flahaut(1935) 2DLR, 685. It was held inter alia in this case that there is a clear customary law right of entry into ports by ships in distress in order to preserve human life.

208Khedivial line, S.A.E.v Seafarers’ International Union (2d Cir. 1960) 278 F. 2d 49, 52.

209L. Henkinet al, op cit. It should be noted however, that a port State has right underinternational law to deny access to its waters and harbours to certain categories of ships such as nuclear shipslicensed by another State.

87 Gradually, coastal States powers increased so they can condition the right of entry into their ports by foreign ships on compliance with specified laws and regulations. In the Nicaragua (Merit) Case²¹⁰the ICJ stated that “by virtue of its sovereignty… a coastal State may regulate access to its ports”. In the recent years, the jurisdiction of the coastal State has

been expanded to allow the State, with respect to ships proceeding to its internal waters or calling at a port facility even outside internal waters, to take steps in the territorial sea necessary to prevent any breach of the conditions to which admission of those ships to internal waters or a call at such facility is subject.²¹¹

b. Jurisdiction of the Flag State

The flag State may exercise jurisdiction to prescribe, to adjudicate, and to enforce by non-

judicial means with respect to the ship or any conduct that takes place on the ship.

Confusion may however arise with respect to who exercises jurisdiction in a case where jurisdiction over an offence committed on a foreign vessel is asserted by the sovereignty in whose waters it was lying at the time of its commission, since for some purposes, the jurisdiction may be regarded as concurrent, in that the courts of either sovereignty may try the offense. There has not been entire agreement among nations or writers on international law as to which sovereignty should yield to the other when the jurisdiction is asserted by both flag State and the State in whose waters the offense is committed.²¹²

210Nicaragua v United States(1986) ICJ Reports p.14 at 111.

211The UNCLOS, Art.25 and the 1958 Convention on Territorial Sea and Contiguous Zone, Art.16 (2).

212L.Henkinet al, op cit, p.1285.

88 In the Wildenhus‟s Case,²¹³ the United States, while indicating its position with respect to the above question stated that at least in the case of major crimes, affecting the peace and tranquility of the port, the jurisdiction asserted by the sovereignty of the port must prevail over that of the vessel.

The United State eventually noted however, that the doctrine as enunciated in the above case does not impinge on that laid down in United States v Rodgers²¹⁴ to the effect that the United States may define and punish offences committed by its own citizens on its own vessels while within foreign waters where the local sovereign has not asserted its Jurisdiction. It therefore seems acceptable generally that, in the absence of any controlling treaty provisions, and any assertion of Jurisdiction by the territorial sovereign, it becomes the duty of the flag State to apply to offences committed by its citizens on vessels flying its flag, its own statutes, and interpret same in the light of recognized principles of international law.

In United States v Reagan,²¹⁵ the defendant was accused of killing a fellow seaman on an American vessel in a German harbour. The Court stated inter alia:

Since there is no „controlling treaty provision‟ the resolution of the question before us turns upon whether there has been „any assertion of jurisdiction by the territorial sovereign,‟ it is our view that there was no „assertion of jurisdiction‟ by Germany and,

213(1887) 120 US I, 7 S. Ct. 385, 30 L. Ed. 565.

214(1893)150 US 249, 14 S. Ct. 109, 37 L. Ed. 1071<supreme.justia.com…united states v Reagan-232 us 37> accessed on 31 January 2014.

215(6^th Cir. 1971) 453 F. 2d 165as cited in L. Henkinet al, op cit, p.1286.

89 therefore, that the district court was not without

jurisdiction.

3.4.2Determination of National Jurisdiction in Relation to International Jurisdiction