Exercise of jurisdiction over foreign ships situated in the internal waters

As stated, the internal waters encompass all waters on the landward side of the baseline from which the breath of the territorial sea is measured/[1] According to Article 2(1) UNCLOS, coastal states enjoy full sovereignty over their internal waters. This was confirmed to also be valid under customary international law by the ICJ in its Nicaragua judgment where it held that ‘[t]he basic legal concept of State sovereignty in customary international law ... extends to the internal waters ... of every State’.[2] [3] Therefore, if a foreign ship voluntarily enters the internal waters of a state, it places itself under the territorial sovereignty of that state and is thus, as a matter of principle, subject to all of its laws/1 That said, notwithstanding the rule, mentioned earlier, according to which enforcement jurisdiction generally follows prescriptive jurisdiction, there is still a certain degree of controversy regarding the question whether and to what extent coastal states may exercise their enforcement jurisdiction over foreign ships situated in their internal waters. While some scholars take the position that coastal states may not exercise their jurisdiction over foreign ships unless the peace and good order of the port is affected, other sources argue that no restriction to the jurisdiction of the coastal state exists, but that, as a matter of comity, the coastal state may simply choose to not exercise its jurisdiction over the foreign ship.[4] [5] [6] [7] [8] It is submitted that the latter view better reflects the attitude of states concerning this issued3 and that Article 27(2) UNCLOS also supports this view. This provision empowers the coastal state to take enforcement measures in its territorial sea against a foreign ship after it has left the internal waters of that state. However, if the coastal state is entitled to exercise enforcement jurisdiction in the territorial sea after the ship has left its internal waters, the state must a fortiori be competent to take the same enforcement measures within its internal waters against the foreign ship.44 In any case, the issue addressed here is one of minor practical relevance since states have concluded numerous similar bilateral agreements prescribing the circumstances under which the coastal state may exercise its criminal enforcement jurisdiction over a foreign ship flying the flag of the other party. These agreements uniformly stipulate that the coastal state will not exercise its jurisdiction over foreign ships if only the internal discipline of the ship is concerned, but that it will enforce its laws and regulations in cases (1) where the offence affects its vital interests, (2) when the intervention of the coastal state is requested by the master of the ship, or the consul of the flag state respectively, (3) when a crew member with a nationality different to the flag state is involved, or (4) when the offence committed is of serious character or of a certain gravity^5 It can thus be concluded that, unless an international treaty provides otherwise, coastal states are generally entitled to interdict foreign ships present in their internal waters to enforce their criminal laws.46

Since the coastal state exercises full sovereignty over its ports and internal waters, states other than the coastal state may not interdict ships in the internal waters of the coastal state, not even those flying the flag of the interdicting state, unless the coastal state has given its consent to the interdiction.

  • [1] Cf. Art. 8(1) UNCLOS.
  • [2] Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America)(Merits), Judgment of 27 June 1986, ICJ Rep. 1986, p. 14, at para. 212.
  • [3] Yang, Jurisdiction of the Coastal State, cited in note 28 above, p. 83; Robin R. Churchill and VaughanA. Lowe, The Law of the Sea, 3rd edn, Manchester, Manchester University Press, 1999, p. 65; McDougaland Burke, The Public Order of the Oceans, cited in note 13 above, p. 156.
  • [4] See US Supreme Court, Mali v Keeper of the Common Jail (Wildenhus’s Case), 120 US 1, 12 (1887);Spector v Norwegian Cruise Line Ltd., 545 US 119, 127 (2005). For further reading cf. Yang, Jurisdiction ofthe Coastal State, cited in note 28 above, pp. 90-92; Yoshifumi Tanaka, The International Law of the Sea,2nd edn, Cambridge, CUP, 2015, p. 79ff.
  • [5] For example, §153c(1) No. 2 of the German Code of Criminal Procedure (Strafprozessordnung)stipulates that the public prosecutor may forgo the prosecution when the criminal act was committedwithin the territory of Germany (‘Inland’) by an alien aboard a foreign ship.
  • [6] Vladimir D. Degan, ‘Internal waters’, (1986) 17 Netherlands Yearbook of International Law, 3, p. 25.
  • [7] Tanaka, The International Law of the Sea, cited in note 42 above, p. 80; Churchill and Lowe, The Lawof the Sea, cited in note 41 above, p. 66ff. seem to share this view when stating that ‘[d]espite any difference between the theoretical bases of French and Anglo-American practice, it is clear that the practice ofthese States, and of States in general, is remarkably consistent’.
  • [8] Rudiger Wolfrum, ‘Freedom of navigation: new challenges’, in Myron H. Nordquist, Tommy T. B.Koh, and John Norton Moore (eds), Freedoms of the Sea, Passage Rights and the 1982 Law of the SeaConvention, Leiden, Brill, 2009, p. 79, p. 90.
 
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