which case the coastal State may exercise its right of self-defence under international
law. Where no such provocation or infringement of the coastal States rights occur, it
would be against UNCLOS to deny foreign warships the right of immunity when
they are navigating in internal waters or when they call at a port.
40 The coastal State
cannot even intervene if the matters on hand concern crew members of a warship and
has no direct effect upon the coastal State when an offence is committed on the
vessel.
Even though the general right of immunity exists under UNCLOS, the coastal
State may provide regulations and guidance as to the duration of stay of warships in
internal waters as well as conditions for stay within the internal waters. The consent
of the coastal State is thus necessary for the entry of a warship into internal waters.
41
Where a warship infringes the laws of the coastal State as provided for under
UNCLOS, the coastal State may require it to leave its “territory” immediately
42 and
when the warship fails to do so, in the view of some writers
43 the coastal State may
use the necessary force to compel it to do so. This is however not provided for under
UNCLOS. One can only infer from the guiding principles underpinning the development of the Convention that the position of Churchill and Lowe is in accord with
international law. The issue that arises is what kind or amount of force is justifiable
and whether it can be exercised regardless of the might of the State infringing the
laws of the coastal State.
2.10 Criminal Jurisdiction of the Coastal State
In order to assume criminal jurisdiction, the effects doctrine must be applicable
i.e. the effects of the crime committed should affect the coastal State or its national.
The circumstances under which the Coastal State may invoke jurisdiction include:
(1) If the crime committed on board the ship would affect peace good order and
security of the coastal State.
(2) If assurance of the local authorities have been requested by the Master or a
Consul of the flag State.
(3) Illicit trafficking of narcotics drugs or psychotropic substances.
44
40 Naya International Treaties; The case of NML Capital Limited Vs the Republic of Argentina.
41 Barcelona Convention and Statute on the Regime of Navigable Waterways of International
Concern; Convention and Statute on the International Regime of Maritime Ports 1923.
42 UNCLOS Article 30.
43 Churchill and Lowe (1988).
44 UNCLOS Article 27.
508
E. K. Mbiah
law. Where no such provocation or infringement of the coastal States rights occur, it
would be against UNCLOS to deny foreign warships the right of immunity when
they are navigating in internal waters or when they call at a port.
40 The coastal State
cannot even intervene if the matters on hand concern crew members of a warship and
has no direct effect upon the coastal State when an offence is committed on the
vessel.
Even though the general right of immunity exists under UNCLOS, the coastal
State may provide regulations and guidance as to the duration of stay of warships in
internal waters as well as conditions for stay within the internal waters. The consent
of the coastal State is thus necessary for the entry of a warship into internal waters.
41
Where a warship infringes the laws of the coastal State as provided for under
UNCLOS, the coastal State may require it to leave its “territory” immediately
42 and
when the warship fails to do so, in the view of some writers
43 the coastal State may
use the necessary force to compel it to do so. This is however not provided for under
UNCLOS. One can only infer from the guiding principles underpinning the development of the Convention that the position of Churchill and Lowe is in accord with
international law. The issue that arises is what kind or amount of force is justifiable
and whether it can be exercised regardless of the might of the State infringing the
laws of the coastal State.
2.10 Criminal Jurisdiction of the Coastal State
In order to assume criminal jurisdiction, the effects doctrine must be applicable
i.e. the effects of the crime committed should affect the coastal State or its national.
The circumstances under which the Coastal State may invoke jurisdiction include:
(1) If the crime committed on board the ship would affect peace good order and
security of the coastal State.
(2) If assurance of the local authorities have been requested by the Master or a
Consul of the flag State.
(3) Illicit trafficking of narcotics drugs or psychotropic substances.
44
40 Naya International Treaties; The case of NML Capital Limited Vs the Republic of Argentina.
41 Barcelona Convention and Statute on the Regime of Navigable Waterways of International
Concern; Convention and Statute on the International Regime of Maritime Ports 1923.
42 UNCLOS Article 30.
43 Churchill and Lowe (1988).
44 UNCLOS Article 27.
508
E. K. Mbiah