351
Argentinian warship was detained by Ghana following an injunction issued by the
Ghanaian authorities in order to enforce the judgment of a U.S. court. In prescribing
provisional measures, the International Tribunal for the Law of the Sea (ITLOS or
Tribunal) ordered Ghana to release the warship and enable the crew to leave the
port. The Tribunal affirmed that the scope of Art. 32 of the UNCLOS referring to the
immunity of warships is wider and not limited to the territorial sea and stated that,
in accordance with general international law, a warship enjoys immunity, including
in internal waters.
3
Territorial Sea An interesting aspect of recent cases is that, apart from the innocent
passage rule, they have highlighted other limitations to coastal State’s powers in its
territorial sea which derive from Art. 2(3) of the UNCLOS. This article provides
that “the sovereignty over the territorial sea is exercised subject to this Convention
and to other rules of international law”. In the Chagos Marine Protected Area arbitration
4
(the Chagos arbitration) the tribunal interpreted the article on the basis of
the wording and the structure of the text, as well as in the light of the negotiating
history, and concluded that the reference “to other rules of international law” establishes an obligation of the coastal State to exercise its sovereignty under the conditions provided for in these “other rules of international law”. Nevertheless, the
tribunal limits the scope of the obligation of the coastal State to the application of
general rules of international law, since the above reference implies such general
rules of international law and was not intended to create an obligation of compliance with any bilateral commitment undertaken by a State in regard to the territorial
sea. In the case at issue general international law obliges the UK to act in good faith
with respect to Mauritius’ rights in the territorial sea surrounding the Chagos archipelago arising out of the undertakings. According to the tribunal, this obligation
entails at least consultations and a balance of interests and rights, the non-execution
of which results in breaching Art. 2(3).
5
Furthermore, in the South China Sea arbitration the tribunal considered that the
reference of the above article to “other rules of international law” comprises the
preservation of traditional fishing rights in the territorial sea. In particular, the tribunal expressed its agreement to the finding in the Chagos arbitral award as regards
the existence of an obligation of the coastal State to exercise its sovereignty in the
territorial sea subject to “other rules of international law”, and envisaged as such the
rules of international law on the treatment of the vested rights of foreign nationals.
3 ITLOS, “Ara Libertad” (Argentina v. Ghana), Provisional Measures, Order, 15 December 2012,
paras 64 and 95. According to Judges Cot and Wolfrum, the immunity of warships in foreign internal waters, including ports, is a rule of customary law which is not being incorporated in the
Convention; thus the basis of immunity is in general international law and not in the Convention,
Joint separate opinion, para. 43.
4 PCA, Chagos Marine Protected Area (Mauritius v. United Kingdom), Award, 18 March 2015,
paras 514, 516–517.
5 Ibidem, para. 534. Such rules are the prohibition of the abuse of right and the law of State
responsibility.
Discretionary Power of Coastal States and the Control of Its Compliance…
Argentinian warship was detained by Ghana following an injunction issued by the
Ghanaian authorities in order to enforce the judgment of a U.S. court. In prescribing
provisional measures, the International Tribunal for the Law of the Sea (ITLOS or
Tribunal) ordered Ghana to release the warship and enable the crew to leave the
port. The Tribunal affirmed that the scope of Art. 32 of the UNCLOS referring to the
immunity of warships is wider and not limited to the territorial sea and stated that,
in accordance with general international law, a warship enjoys immunity, including
in internal waters.
3
Territorial Sea An interesting aspect of recent cases is that, apart from the innocent
passage rule, they have highlighted other limitations to coastal State’s powers in its
territorial sea which derive from Art. 2(3) of the UNCLOS. This article provides
that “the sovereignty over the territorial sea is exercised subject to this Convention
and to other rules of international law”. In the Chagos Marine Protected Area arbitration
4
(the Chagos arbitration) the tribunal interpreted the article on the basis of
the wording and the structure of the text, as well as in the light of the negotiating
history, and concluded that the reference “to other rules of international law” establishes an obligation of the coastal State to exercise its sovereignty under the conditions provided for in these “other rules of international law”. Nevertheless, the
tribunal limits the scope of the obligation of the coastal State to the application of
general rules of international law, since the above reference implies such general
rules of international law and was not intended to create an obligation of compliance with any bilateral commitment undertaken by a State in regard to the territorial
sea. In the case at issue general international law obliges the UK to act in good faith
with respect to Mauritius’ rights in the territorial sea surrounding the Chagos archipelago arising out of the undertakings. According to the tribunal, this obligation
entails at least consultations and a balance of interests and rights, the non-execution
of which results in breaching Art. 2(3).
5
Furthermore, in the South China Sea arbitration the tribunal considered that the
reference of the above article to “other rules of international law” comprises the
preservation of traditional fishing rights in the territorial sea. In particular, the tribunal expressed its agreement to the finding in the Chagos arbitral award as regards
the existence of an obligation of the coastal State to exercise its sovereignty in the
territorial sea subject to “other rules of international law”, and envisaged as such the
rules of international law on the treatment of the vested rights of foreign nationals.
3 ITLOS, “Ara Libertad” (Argentina v. Ghana), Provisional Measures, Order, 15 December 2012,
paras 64 and 95. According to Judges Cot and Wolfrum, the immunity of warships in foreign internal waters, including ports, is a rule of customary law which is not being incorporated in the
Convention; thus the basis of immunity is in general international law and not in the Convention,
Joint separate opinion, para. 43.
4 PCA, Chagos Marine Protected Area (Mauritius v. United Kingdom), Award, 18 March 2015,
paras 514, 516–517.
5 Ibidem, para. 534. Such rules are the prohibition of the abuse of right and the law of State
responsibility.
Discretionary Power of Coastal States and the Control of Its Compliance…