With respect to the claims of hot pursuit by Guinea, the Tribunal found that
Guinea had stopped and arrested the m.v. Saiga in circumstances which did not
justify the right of hot pursuit in accordance with the convention. On the issue of the
use of force, the Tribunal was of the view that Guinea had used excessive force
during the arrest endangering human life and violated the rights of Saint Vincent and
the Grenadines under international law.
The Tribunal further noted that “although the law of the sea convention does not
contain express provisions on the use of force in the arrest of a ship, international law
which is applicable by virtue of Article 293 of the Convention requires that the use of
force must be avoided as far as possible and, where force is unavoidable, it must not
go beyond what is reasonable and necessary in the circumstances”. The Tribunal
also found that the coastal State had jurisdiction to apply its customs laws in its EEZ
only in respect of artificial Islands, installations and structures
36 and not “in respect
of any other parts of the Exclusive Economic Zone. . . .”
37
2.8 Ports
The regime of ports is not spelt out in UNCLOS in respect of the powers of the
coastal State. Article 11 provides for ports as part of the delimitation of the territorial
sea. For the purpose of delimiting the territorial sea, the outermost permanent
harbour works which form an integral part of the harbour system are regarded as
forming Installations and artificial Islands and shall not be considered as permanent
harbour works. In effect therefore UNCLOS does not make specific provisions with
respect issues of entry into port by foreign ships. This may be due to the fact that a
great majority of coastal States with ports are party
38 to the convention on maritime
ports.
Thus, entry into ports is by reciprocity with the conditions set out with respect to
internal waters and territorial seas applicable.
2.9 Regime of Warships
Article 32 of UNCLOS provides for immunities of warships and other government
ships operated for non-commercial purposes. The only exceptions to this rule would
be instances in which the warship exhibits a hostile and confrontational posture,
39 in
36 UNCLOS Article 60(2).
37 ITLOS Ruling, para. 127.
38 Nigeria and Ghana are parties to the Convention and Statute on the International Regime of
Maritime Ports [Article 2] 1923 Dec 9, 1923 LNTS 202; The Navigable Waterways Convention.
39 Corfu Channel case.
Coastal, Flag and Port State Jurisdictions: Powers and Other. . .
507
Guinea had stopped and arrested the m.v. Saiga in circumstances which did not
justify the right of hot pursuit in accordance with the convention. On the issue of the
use of force, the Tribunal was of the view that Guinea had used excessive force
during the arrest endangering human life and violated the rights of Saint Vincent and
the Grenadines under international law.
The Tribunal further noted that “although the law of the sea convention does not
contain express provisions on the use of force in the arrest of a ship, international law
which is applicable by virtue of Article 293 of the Convention requires that the use of
force must be avoided as far as possible and, where force is unavoidable, it must not
go beyond what is reasonable and necessary in the circumstances”. The Tribunal
also found that the coastal State had jurisdiction to apply its customs laws in its EEZ
only in respect of artificial Islands, installations and structures
36 and not “in respect
of any other parts of the Exclusive Economic Zone. . . .”
37
2.8 Ports
The regime of ports is not spelt out in UNCLOS in respect of the powers of the
coastal State. Article 11 provides for ports as part of the delimitation of the territorial
sea. For the purpose of delimiting the territorial sea, the outermost permanent
harbour works which form an integral part of the harbour system are regarded as
forming Installations and artificial Islands and shall not be considered as permanent
harbour works. In effect therefore UNCLOS does not make specific provisions with
respect issues of entry into port by foreign ships. This may be due to the fact that a
great majority of coastal States with ports are party
38 to the convention on maritime
ports.
Thus, entry into ports is by reciprocity with the conditions set out with respect to
internal waters and territorial seas applicable.
2.9 Regime of Warships
Article 32 of UNCLOS provides for immunities of warships and other government
ships operated for non-commercial purposes. The only exceptions to this rule would
be instances in which the warship exhibits a hostile and confrontational posture,
39 in
36 UNCLOS Article 60(2).
37 ITLOS Ruling, para. 127.
38 Nigeria and Ghana are parties to the Convention and Statute on the International Regime of
Maritime Ports [Article 2] 1923 Dec 9, 1923 LNTS 202; The Navigable Waterways Convention.
39 Corfu Channel case.
Coastal, Flag and Port State Jurisdictions: Powers and Other. . .
507