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E. SIRADZE, JURISDICTION OF THE COASTAL STATE OVER THE SHIP OF FOREIGN STATE...
commercial purposes enjoy full immunity from
the jurisdiction of the coastal State. 7 This practice
is not an innovation and reflects well established
norm of the customary law.
Codification of this issue first was initiated
by the Brussels Convention “for the Unification
of Certain Rules Concerning the Immunity
of State-owned Ships” of April 10, 1926.
However, long before in 1873, In Charkiech
case the court established that, irrespective
the fact whether the ship was owned by sovereign
of semi sovereign State of Egypt and
was sailing under the flag of Ottoman Navy,
its detention was not in conflict with the norms
of international law, because in that particular
case the ship was used for commercial shipment.
Namely, in resolution was noted that, if
a sovereign assumes the character of a trade,
and sends a vessel belonging to him to this
country to trade here, he must be considered
to have waived any privilege which might otherwise
attach to the vessel as the property of
the sovereign... 8
Although, the fact that warships and government
ships operated for non-commercial
purposes enjoy immunity from the jurisdiction
of the coastal State, it does not release them
from the obligation to respect and observe the
laws of the coastal State. Otherwise the coastal
State is entitled to require violating ship to leave
internal waters and the territorial sea. Therefore,
the flag State shall bear responsibility for
any caused damage. 9
As regards to merchant marine, in internal
waters the coastal State in relation to them
may control the following: navigation, overflight,
fishing, scientific research, laying of submarine
cables, processing of seabed, protection
of environment.
The majority of these issues are regulated
by the Convention, though only with respect
to the territorial sea and the regime of the internal
waters remained open. Perhaps this is
reasoned also by the fact that, the jurisdiction
of the coastal State is completely extended,
except few exceptions, when the coastal State
limits its sovereignty in favor of the other State
under bilateral agreement. Consequently, the
coastal State in its internal waters may control
the ship of foreign State likewise it would occur
at its land territory. 10
As it is recognized that the internal waters
with their status are equalized to the land territory
of a State, it is obvious that determination
of its status may unlikely be the subject of
any international Convention.
It is general norm that foreign ships do not
have a right of navigation in internal waters.
The issue of entry into the port is more disputable.
In accordance with the customary law
there is no norm which bounds the States to
allow necessary entry to the ships of foreign
States into their ports. 11 On the other hand in
Arbitrary decision of Aramco of 1958 is noted
that following to international law ports of each
country must be open for the ships of other
States and they may be closed only when it is
required by vital interests of the State of port. 12
But in Nicaragua case the same court established
that the State of a port taking into consideration
its sovereignty may regulate accessibility
to the ports. 13 Although, the international
ports of the States is considered to be open
for international navigation of the ships (certainly
this does not refer to military ships), this
rule has not obtained the status of customary
law norm. Each State determines the rule of
entry of the ships into the ports itself independently
or on the basis of bilateral international
agreements. 14
First of all States are entitled to determine
which ship may be granted with the right to
enter into the port and secondly, the State may
close a port for international navigation for
security purposes. In this case it is difficult to
prove whether this is crucial interest of the State
or not.
As stated above, the internal waters are
the part of the territory of a State and consequently
jurisdiction of a coastal State extends
over the ships and their crew entered into the
ports. However, the jurisdiction of a flag State 15
always extends over the ship, which causes
certain collision of norms (or conflict of jurisdictions).
There are two different approaches
with respect to this issue: French and Anglo-
American.
French approach was established in relation
to two American ships “Sally” and
“Newton”, where the fight between the crew
members took place. French court established
that, in case of commitment of crime
in a port on the board of a ship, if it only
violates internal regulations of a ship and
refers to the ship and a crew, local authorities
shall not interfere, unless it has direct
affect on the good order and security of the
port and if request on assistance is received
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