Page 83 - Law of Peace, Volume ,

Pam 27-161-1

(4) Passgeis innocent so long as it is not prejudicial to the peace, good
according to the circumstances of the particular case.Their action in so order or security of the coastal State. Such passage shall take place in
' doing is not to be regarded as indicative of any requirement of public in- conformity with these articles and with other rules of international law.
ternational law. 172
(5) Passage of foreign fishing vessels shall not be considered innocent
b. After the court has decided to retain a case for deci- if they do not observe such laws and regulations as the coastal State may
sion, whether in the exercise of its sound discretion or in make and publish in order to prevent these vessels from fishing in the
compliance with legislative mandate, it must decide territorial sea.
whether the forum's jurisdiction to prescribe shall be (6) Submarines are required to navigate on the surface and to show
their flag.
deemed to have been exercised so that United States law Art. 15. (1) The costal State must not hamper innocent passage
applies to the issue presented. 173 In the Kate A. Hoff through the territorial sea.
claim, the General Claims Commission 174 hearing this (2) The coastal State is required to give appropriate publicity to any
claim spoke to the degree of jurisdiction to be exercised dangers to navigation, of which it has knowledge, within its territorial
over a merchant vessel forced into internal waters by a sea.
superior force. Art. 16. (1) The coastal State may take the necessary steps in its ter-
ritorial sea to prevent passage which is not innocent.
The enlightened principle of comity which exempts a merchant (2) In the caseof ships proceeding to internal waters, the coastal State
vessel, at least to a certain extent, from the operation of local laws has shall also have the right to take the necessary steps to prevent any
been generally stated to apply to vessels forced into port by storm, or breach of the conditions to which admission of those ships to those
compelled to seek refuge for vital repairs or for provisioning, or carried waters is subject.
into port by mutineers. It has also been asserted in defense of a charge of (3) Subject to the provisions of paragraph 4, the coastal State may,
attempted [breach] of blockade. It was asserted by as early a writer as without discrimination amongst foreign ships, suspend temporarily in
Vattel. sWed areas of its territorial sea the innocent passage of foreign ships
4-18. Foreign Vessels in the Territorial Sea: The Right if such suspension is essential for the protection of its security. Such
suspension shall take effect only after having been duly published.
of Innocent Passage. a. General.
(4) There shall be no suspension of the innocent passage of foreign
The right of innocent passage seems to be the result of an attempt to ships through straits which are used for international navigation be-
reconcile the freedom of ocean navigation with the theory of territorial tween one part of the high seas and another part of the high seas or the
waters. While recognizing the necessity of granting to littoral states a territorial sea of a foreign State.
zone of waters along the coast, the family of nations was unwilling to Art. 17. Foreign ships exercising the right of innocent passage shall
prejudice the newly gained freedom of the seas. As a general principle, comply with the laws and regulations enacted by the coastal State in con-
the right of innocent passage requires no supporting argument or cita- formity with these articles and other rules of international law and, in
tion of authority; it is firmly established in international law. 175 particular, with such laws and regulations relating to transport and
Codified norms applicable to foreign vessels in the ter- navigation. 176
Sub-section B. Rules applicable to merchant ships
ritorial sea and the right of innocent passage follow. Art. 18. (1) No charge may be levied upon foreign ships by reason
b. Convention on the territorial sea and the contiguous only of their passage through the temtorial sea. . . .
zone. Art. 19. (1) The criminal j-ction of the coastal State should not
be exercised on board a foreign ship passing through the territorial sea to
Geneva, April 28, 1958 arrest any person or to conduct any investigation in comexion with any
15 U.S.T. 1606, T.I.A.S. 5639, 516 U.N.T.S. 205 crime committed on board the ship during its passage, save only the
SECTION 111. RIGHT OF INNOCENTPASSAGE
following cases:
Sub-section A. Rules applicable to all ships (a) If the consequences of the-crime extend to the coastal State; or
Art. 14. (1) Subject to the provisions of these articles, ships of all (b) If the crime is of a kind to disturb the peace of the country or
States, whether coastal or not, shall enjoy the right of innocent passage the good order of the territorial sea; or
through the territorial sea. (c) If the assistance of the local authorities has been requested by
(2) Passage means navigation through the territorial sea for the pur- the captain of the ship or by the consul of the country whose flag the
pose either of traversing that sea without entering internal waters, or of ship flies; or
proceeding to internal waters, or of making for the high seas from inter- (d) If it is neceswy for the suppression of illicit traffic in narcotic
nal waters. dm3.
(3) Passage includes stopping and anchoring, but only in so far as the (2) The above provisions do not affect the right of the coastal State to
same are incidental to ordinary navigation or are rendered necessary by take any steps authorized by its laws for the purpose of an arrest or in-
force mqieure or by distress. vestigation on board a foreign ship passing through the territorial sea
after leaving internal waters.
--
172. I. Hyde, International Law 742-43 (2d rev. ed. 1945). On the (3) In the cases provided for in paragraphs 1 and 2 of this article, the
application of the doctrine of forum non conveniens in litigation involv- coastal State shall, if the captain so requests, advise the consular
ing foreign merchant vessels and seamen, see The Estes, 109 F. 216 authority of the flag State before taking any steps, and shall facilitate
(191 1); Bickel, The Doctrine of Forum Non Conveniens as Applied in the contact between such authority and the ship's crew. In cases of
Federal Courts in Matters of Admiralty, 35 Cornel L. Q. 12 (1949). emergency this notification may be communicated whiie the measures
173. See, e.g., McCulloch v. Sociedad Nacional de Marineros de are beii taken. . . .
Honduras, 372 U.S. 10,83 S.Ct. 671,9 L.Ed.2d 547 (1963); Lauritzen (5) The coastal State may not take any steps on board a foreign ship
v. Larson, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254 (1953). passing through the temtorial sea to arrest any person or to conduct any
174. United States v. Mexico, 4 U.N. R.I.A.A. 444. investigation in comexion with any crime committed before the ship
175. P. Jessup, The Law of Territorial Waters and Maritime Juris-
diction 120 (1927) (hereinafter cited as P. Jessup, Territorial Waters). 176. On the question of the coastal state's duty to publicize dangers
See also Franklin, The Law of the Sea: Some Recent Developmen&, to navigation, compare the Conventions requirement of actual
[1959-601 NAVAL WAR COLLEGE INTERNATIONAL knowledge of such dangers with the conditions laid down in the Corfu
LAW STUDIES
127-56. Channel case, [I9491 I.C.J. 4.