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The corresponding article drafted by Sub-Committee II of the 1930 Conference contained a second paragraph reading:
"The coastal State may not, however, apply these rules or regulations in such a manner as to discriminate between foreign vessels of different nationalities, nor, save in matters relating to fishing and shooting, between national vessels and foreign vessels."
By omitting this paragraph, the Commission did not mean to imply that it does not contain a general rule valid in international law. Nevertheless, the Commission considers that certain cases may occur in which special rights granted by one State to another specified State may be fully justified by the special relationship between those two States; in the absence of treaty provisions to the contrary, the grant of such rights cannot be invoked by other States as a ground for claiming similar treatment. The Commission prefers, therefore, that this question should continue to be governed by the general rules of law.
CHARGES TO BE LEVIED UPON FOREIGN VESSELS
1. No charge may be levied upon foreign vessels by reason only of their passage through the territorial sea.
2. Charges may only be levied upon a foreign vessel passing through the territorial sea as payment for specific services rendered to the vessel.
The object of this article is to exclude any charges in respect of general services to navigation (light or conservancy dues) and to allow payment to be demanded only for special services rendered to the vessel (pilotage, towage, etc.). The article states the international law now in force.
As a general rule these charges are applicable on a footing of equality. For reasons analogous to those given for the omission of a second paragraph from article 21, the Commission did not reproduce the words "these charges shall be levied without discrimination" which occurred in the corresponding article drafted by the 1930 Conference.
ARREST ON BOARD A FOREIGN VESSEL
1. A coastal State may not take any steps on board a foreign vessel passing through the territorial sea to arrest any person or to conduct any investigation by reason of any crime committed on board the vessel during its passage, save only in the following cases:
(a) If the consequences of the crime extend beyond the vessel; or (b) If the crime is of a kind to disturb the peace of the country or the good order of the territorial sea; or
(c) If the assistance of the local authorities has been requested by
the captain of the vessel or by the consul of the country whose flag the vessel flies.
2. The above provisions do not affect the right of the coastal State to take any steps authorized by its laws for the purpose of an arrest or investigation on board a foreign vessel lying in its territorial sea, or passing through the territorial sea after leaving the inland waters.
3. The local authorities shall in all cases pay due regard to the interests of navigation when making an arrest on board a vessel.
This article enumerates the cases in which the coastal State may stop a foreign vessel passing through its territorial sea for the purpose of arresting persons or conducting an investigation in connexion with a criminal offence committed on board the vessel during that particular passage. In such a case a conflict of interest occurs: on the one hand, there are the interests of shipping which should suffer as little interference as possible; and on the other there are the interests of the coastal State which wishes to enforce its criminal law throughout its territory. Without prejudice to the coastal State's power to hand the offenders over to its tribunals (if it can arrest them), its power to arrest persons on board ships which are merely passing through the territorial sea may only be exercised in the cases expressly enumerated in the article.
The coastal State has no authority to stop a foreign vessel passing through the territorial sea, without entering inland waters, merely because some person happens to be on board who is wanted by the judicial authorities of that State in connexion with some punishable act committed elsewhere than on board the ship. A fortiori, a request for extradition addressed to the coastal State by reason of an offence committed abroad cannot be considered as a valid reason for stopping the vessel.
In the case of a vessel lying in the territorial sea, the jurisdiction of the coastal State will be regulated by the State's own municipal law and will necessarily be more extensive than in the case of vessels which are simply passing through the territorial sea along the coast. The same observation applies to vessels which have been in one of the ports or navigable waterways of the coastal State; if, for instance, a vessel anchored in a port, or had contact with the land, or took on passengers, the powers of the coastal State would be greater. The coastal State, however, must always do its utmost to interfere as little as possible with navigation. The inconvenience caused to navigation by the stopping of a large liner outward bound in order to arrest a person alleged to have committed some minor offence on land can scarcely be regarded as of less importance than the interest which the State may have in securing the arrest of the offender. Similarly, the judicial authorities of the coastal State should, as far as possible, refrain from arresting any of the officers or crew of the vessel if their absence would make it impossible for the voyage to continue.
Accordingly, the proposed article does not attempt to solve conflicts of jurisdiction between the coastal State and the flag State in the matter of criminal law, nor does it in any way prejudice their respective rights. The Commission realizes that it would be desirable to codify the law relating to these matters. It appreciates that it is important to determine what tribunal is competent to deal with any criminal proceedings to which collisions in the territorial sea may give rise. The fact that, in keeping with the example of the 1930 Conference, the Commission nevertheless did not formulate express rules concerning this matter, is to be explained by the consideration that in this very broad field the Commission's task must inevitably be limited. Again, the Commission did not deal with the matter of collisions because, since 1952, a convention relating to the subject has been in existence and this convention has not yet been ratified by a considerable number of States; the convention in question is entitled "International Convention for the Unification of Certain Rules relating to Penal Jurisdiction in Matters of Collisions or other Incidents of Navigation" and was signed at Brussels on 10 May 1952.1 The Commission proposes, however, to study this topic later.
ARREST OF VESSELS FOR THE PURPOSE OF EXERCISING CIVIL
1. A coastal State may not arrest or divert a foreign vessel passing through the territorial sea for the purpose of exercising civil jurisdiction in relation to a person on board the vessel. A coastal State may not levy execution against or arrest the vessel for the purpose of any civil proceedings save only in respect of obligations or liabilities incurred by the vessel itself in the course or for the purpose of its voyage through the waters of the coastal State.
2. The above provisions are without prejudice to the right of the coastal State in accordance with its laws to levy execution against, or to arrest, a foreign vessel in the inland waters of the State or lying in the territorial sea, or passing through the territorial sea after leaving the inland waters of the State, for the purpose of any civil proceedings.
In this article the Commission adopted a rule analogous to that governing the exercise of criminal jurisdiction. A vessel which is only navigating the territorial sea without touching the inland waters of the coastal State may in no circumstances be stopped for the purpose of exercising civil jurisdiction in relation to any person on board or of levying execution against or arresting the vessel itself, except as a result of events occurring in the waters of the coastal State during the
1 This convention (Cmd. 8954), to which the United States is not a party, came into effect Nov. 20, 1955, and has been ratified or adhered to by Burma, Costa Rica, Egypt, France, Haiti, Spain, Switzerland, Vatican City, Viet-Nam, and Yugoslavia.
voyage in question, as for example, a collision, salvage, etc., or in respect of obligations incurred for the purpose of the voyage.
The article does not attempt to provide a general solution for conflicts of jurisdiction in private law between the coastal State and the flag State. Questions of this kind will have to be settled in accordance with the general principles of private international law and cannot be dealt with by the Commission at this stage of its work. Hence, questions of competence with regard to liability under civil law for collisions in the territorial sea are not covered by this article. Two conventions materially affecting questions of civil jurisdiction were drawn up at the Brussels Conference referred to in the comment to the previous article, namely, the International Convention on Certain Rules concerning Civil Jurisdiction in Matters of Collision and the International Convention for the Unification of Certain Rules relating to the Arrest of Sea-going Ships,2 both dated 10 May 1952. The sole purpose of the article adopted by the Commission is to prohibit the arrest of a foreign vessel passing through the territorial sea for the purpose of exercising civil jurisdiction, except in certain clearly defined
GOVERNMENT VESSELS OPERATED FOR COMMERCIAL PURPOSES
The rules contained in the preceding articles of this chapter shall also apply to Government vessels operated for commercial purposes.
The Commission followed the rules of the Brussels Convention of 1926 concerning the immunity of State-owned vessels; it considers that these rules follow the preponderant practice of States, and has therefore formulated this article accordingly.
SECTION B: WARSHIPS
1. Save in exceptional circumstances, warships shall have the right of innocent passage through the territorial sea without previous authorization or notification.
2. The coastal State has the right to regulate the conditions of such passage. It may prohibit such passage in the circumstances envisaged in article 20.
1 This convention (Cmd. 8954), to which the United States is not a party, came into effect Sept. 14, 1955, and has been ratified or adhered to by Costa Rica, Egypt, Spain, Switzerland, Vatican City, and Yugoslavia.
This convention (Cmd. 8954), to which the United States is not a party, came into effect Feb. 24, 1956, and has been ratified or adhered to by Costa Rica, Egypt, Haiti, Spain, Switzerland, and Vatican City.
Convention of Apr. 10, 1926; League of Nations Treaty Series, vol. 176, pp.
3. Submarines shall navigate on the surface.
4. There must be no interference with the passage of warships through straits used for international navigation between two parts of the high seas.
To state that the coastal State will authorize the innocent passage of foreign warships through its territorial sea is but to recognize the existing practice. The above provision is also in conformity with the practice which, without laying down any strict and absolute rule, leaves to the State the power, in exceptional cases, to prohibit the passage of foreign warships through its territorial sea. Hence the coastal State has the right to regulate the conditions of passage. In this respect the terms of article 20, relating to merchantmen, also apply to warships.
The right of passage does not imply that warships are entitled, without special authorization, to stop or anchor in the territorial sea. The Commission did not consider it necessary to insert an express stipulation to this effect for article 17, paragraph 3, applies equally to warships.
The Commission took the view that passage should be granted to warships without prior authorization or notification. Some members of the Commission held however that, under the international law in force, the passage of foreign warships through the territorial sea was a mere concession and hence subject to the consent of the coastal State.
The right of the coastal State to restrict passage is more limited in the case of passage through straits. The International Court of Justice in its judgment of 9 April 1949 in the Corfu Channel case1 says:
"It is, in the opinion of the Court, generally recognized and in accordance with international custom that States in time of peace have a right to send their warships through straits used for international navigation beween two parts of the high seas without the previous authorization of a coastal State, provided that the passage is innocent. Unless otherwise prescribed in an international convention, there is no right for a coastal State to prohibit such passage through straits in time of peace."
In inserting paragraph 4, the Commission relied on that judgment.
NON-OBSERVANCE OF THE REGULATIONS
1. Warships shall be bound, when passing through the territorial sea, to respect the laws and regulations of the coastal State.
2. If any warship does not comply with the regulations of the coastal State and disregards any request for compliance which may be brought to its notice, the coastal State may require the warship to leave the territorial sea.
1 International Court of Justice Reports, 1949, pp. 4 ff.