CHAPTER TWO RIGHTS AND DUTIES OF COASTAL AND PORT STATES

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Chapter Two
RIGHTS AND DUTIES OF COASTAL AND
PORT STATES
Section
511. Coastal State Authority in Zones of Adjacent Sea
512. Coastal State Sovereignty over Territorial Sea
513. Passage Through Territorial Sea, Straits, and Archipelagic Waters
514. Exclusive Economic Zone
515. Continental Shelf
516. Delimitation of Territorial Sea
517. Delimitation of Exclusive Economic Zone and Continental Shelf
? 511. Coastal State Authority in Zones of Adjacent Sea
Subject to ?? 512-15, a coastal state may exercise
jurisdiction over the following coastal zones:
(a) The territorial sea: a belt of sea that may not
exceed 12 nautical miles, measured from a base-
line that is either the low-water line along the
coast or the seaward limit of the internal waters
of the coastal state or, in the case of an archipe-
lagic state, the seaward limit of the archipelagic
waters;
(b) The contiguous zone: a belt of sea contiguous to
the territorial sea, which may not extend beyond
24 nautical miles from the baseline from which
the breadth of the territorial sea is measured;
(c) The continental shelf: the sea-bed and subsoil of
the submarine areas that extend beyond the
coastal state's territorial sea
(i) throughout the natural prolongation of the
state's land territory to the outer edge of the
continental margin, subject to certain limi-
tations based on geological and geographi-
cal factors; or
(ii) to a distance of 200 nautical miles from the
baseline from which the breadth of the ter-
ritorial sea is measured, where there is no
continental margin off the coast or where
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? 511
Compare Article 77(3) of the LOS Convention with Articles 3, 33,
47, and 57.
e. Internal waters and ports. Internal waters are waters
wholly or largely surrounded by a state's land territory, as well as
sea waters on the landward side of the baseline of the territorial
sea or of the archipelagic waters. 1958 Convention on the Territori-
al Sea and the Contiguous Zone, Article 5(1); LOS Convention,
Articles 8(1) and 50. Under international law, a coastal state's
sovereignty over its land territory extends to its internal waters,
including bays. See Comment f. A state also has complete sover-
eignty over its seaports, but there are special rules for roadsteads
and offshore terminals. 1958 Convention on the Territorial Sea,
Article 9; LOS Convention, Articles 12, 60, 218, and 220.
f Bays. A coastal state may designate a bay as its internal
waters if it has prescribed characteristics. It must be a well-
marked indentation in the coast, not a mere curvature. Its area
must be as large as, or larger than, that of the semicircle whose
diameter is a line drawn across the mouth of the indentation. The
closing line of a bay is drawn between its natural entrance points;
the line may not exceed 24 nautical miles, but a 24-mile line may be
drawn within the bay in such manner as to enclose the maximum
area of water that is possible with a line of that length. 1958
Convention on the Territorial Sea and the Contiguous Zone, Article
7; LOS Convention, Article 10.
In addition, international law recognizes "historic" bays that
have been considered internal waters even though they do not
satisfy criteria for a bay. 1958 Convention on the Territorial Sea
and the Contiguous Zone, Article 7(6); LOS Convention, Article
10(6).
g. Islands. An island is "a naturally formed area of land,
surrounded by water, which is above water at high tide." 1958
Convention on the Territorial Sea and the Contiguous Zone, Article
10(1); LOS Convention, Article 121(1). In this Restatement, the
term "coast" includes not only the shore of the mainland but also of
islands; all islands are entitled to a territorial sea, a contiguous
zone, an exclusive economic zone, and a continental shelf. LOS
Convention, Article 121(2). But rocks that cannot sustain human
habitation or economic life of their own have only a territorial sea
and a contiguous zone, not an exclusive economic zone or a conti-
nental shelf. Id. Article 121(3). See also id. Article 6 with respect
to reefs.
h. Baseline from which territorial sea is measured. The
normal baseline for measuring the breadth of the territorial sea is
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? 511
the concept of natural prolongation with a specified distance from
the shore. The new definition broadens the area under the jurisdic-
tion of the coastal state by extending it to the entire continental
margin (i.e., the continuation of the land mass until it reaches the
abyssal plain), subject to some limitations where the margin is
unusually large. LOS Convention, Article 76. The new definition
also gives the coastal state authority over the sea-bed to a distance
of 200 nautical miles even if that sea-bed is not the natural
prolongation of the coastal land mass. In that area, the coastal
state has jurisdiction over sea-bed resources both under the doc-
trine of the continental shelf and as one of its rights in the
exclusive economic zone. This complex definition for the continen-
tal shelf has been accepted implicitly by the United States. See the
1983 Oceans Policy Statement, Introductory Note to this Part.
k. Contiguous zone and other special coastal zones. Inter-
national law recognizes special rights for a coastal state to take
measures to enforce specified laws in a zone contiguous to the
territorial sea, extending up to 24 nautical miles from the baselines
from which the breadth of the territorial sea is measured. See this
section, clause (b), and ? 513, Comment f. International law has
not recognized coastal state assertions of special zones to protect
security or environment. As to air defense identification zones
asserted by some states, see ? 521, Reporters' Note 2.
1. Authority of coastal state.
Traditional international law accept-
ed coastal state sovereignty only
over internal waters, ports, historic
bays, and territorial sea, and en-
forcement authority for the coastal
state in a zone contiguous to its
territorial sea. The 1958 Conven-
tion on the Continental Shelf recog-
nized the exclusive jurisdiction of
the coastal state over the sea-bed
resources of the continental shelf.
The LOS Convention added sover-
eignty over archipelagic waters, ex-
tended the definition of the conti-
nental shelf, and gave the coastal
state exclusive rights to resources
and other limited rights in the ex-
clusive economic zone. The authori-
ty of the coastal state in the differ-
ent zones is subject to navigational
and overflight rights of other states
and their right to use the sea for
other purposes lawful under inter-
national law. These rights differ in
the different coastal areas. See
?? 512-15.
2. Internal waters, ports,
roadsteads, and offshore termi-
nals. "Internal waters" include
waters of lakes, rivers, and bays
that are on the landward side of
the baseline of the territorial sea
or of archipelagic waters. For
rivers, this baseline is a straight
line across the mouth of the river
between points on the low-tide
line of its banks. See 1958 Con-
vention on the Territorial Sea and
the Contiguous Zone, Arts. 5 and
13; LOS Convention, Arts. 8-9.
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A "port" is "a place where ships
are in the habit of coming for the
purpose of loading or unloading,
embarking or disembarking." The
Mowe, [1915] P. 1, 2 Lloyds Prize
Cas. 70. According to Article 1 of
the 1923 Statute on the Internation-
al Regime of Maritime Ports, a
"maritime port" is a port that is
"normally frequented by sea-going
vessels and used for foreign trade."
58 L.N.T.S. 285, 301, 2 Hudson, In-
ternational Legislation 1162 (1931).
For the purpose of delimiting the
territorial sea, the outermost per-
manent harbor works that form an
integral part of the harbor system
are regarded as forming part of the
coast, but offshore installations are
not considered permanent harbor
works for this purpose. See 1958
Convention on the Territorial Sea
and the Contiguous Zone, Art. 8;
LOS Convention, Art. 11. The Unit-
ed States Supreme Court has stated
that "harbor works" connote "struc-
tures" and "installations" that are
"part of the land," that in some
sense enclose and shelter the wa-
ters within, and that are "connected
with the coast." Therefore, the
Court held that "dredged channels
leading to ports and harbors" are
not "harbor works." United States
v. Louisiana, 394 U.S. 11, 36-38, 89
S.Ct. 773, 787-789, 22 L.Ed.2d 44
(1969). See also United States v.
California, 432 U.S. 40, 97 S.Ct.
2915, 53 L.Ed.2d 94 (1977), modi-
fied, 449 U.S. 408, 101 S.Ct. 912, 66
L.Ed.2d 619 (1981) (treating certain
artificial extensions as part of the
coastline for baseline purposes).
Compare another proceeding in the
same case, 447 U.S. 1, 100 S.Ct.
1994, 64 L.Ed.2d 681 (1980) (refus-
ing such treatment to a different
type of extension).
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? 511
"Roadsteads" are places at a dis-
tance from the coast that are used
for the loading, unloading, and
anchoring of ships. Even when
they are situated wholly or partly
outside the outer limit of the territo-
rial sea, they are considered part of
the territorial sea for purposes of
the law of the sea. 1958 Conven-
tion on the Territorial Sea and the
Contiguous Zone, Art. 9; LOS Con-
vention, Art. 12. As they are con-
sidered part of the territorial sea
and not of the internal waters, their
delimitation does not influence the
baseline from which the areas of
coastal jurisdiction are measured.
See McDougal and Burke, The Pub-
lic Order of the Oceans 423-27
(1962).
"Offshore terminals" or "deepwa-
ter ports" are "any fixed or floating
man-made structures other than a
vessel, or any group of such struc-
tures, located beyond the territorial
sea . . . and which are used or
intended for use as a port or termi-
nal for the loading or unloading and
further handling of oil for transpor-
tation to any State." Deepwater
Port Act of 1974, as amended, 33
U.S.C. ?? 1501, 1502(10). See Get
Oil Out! Inc. v. Exxon Corp., 586
F.2d 726 (9th Cir. 1978). For United
States agreements with other coun-
tries as to the use of deepwater
ports by foreign ships, see [1978]
Digest of U.S. Practice in Int'l L.
826-27; [1979] id. 1082-83.
A coastal state may establish rea-
sonable safety zones around an off-
shore terminal, in which it may take
reasonable measures to ensure the
safety both of navigation and of the
installations themselves. In deter-
mining the breadth of the safety
zone, the coastal state must take
into account applicable international
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? 512
THE LAW OF THE SEA Pt. V
Comment:
a. Coastal state sovereignty over territorial sea. The rights
of a coastal state in its territorial sea have gradually increased
during the past centuries. Today, international law treats the
territorial sea like land territory, subject only to the right of
passage for foreign vessels. The rights and duties of a state
(? 206) and its jurisdiction (Part IV) are the same in the territorial
sea as in its land territory. Any exploration or exploitation of the
area's resources, whether living or nonliving, whether natural or
man-made (e.g., sunken treasure), whether in the waters, sea-bed, or
subsoil, is subject to the consent of the coastal state. No foreign
aircraft may fly over the territorial sea without the permission of
the coastal state, granted either ad hoc or by a general or bilateral
international agreement. See ? 513, Comment i. Aviation agree-
ments regulating overflight of land territory generally apply also to
the territorial sea. See ? 513, Reporters' Note 6.
The authority of the coastal state in the territorial sea is
subject, however, to the right of innocent passage, to the right of
transit passage through and over certain straits, and to the right of
archipelagic sea lanes passage. See ? 513.
b. United States territorial sea and rights of States. The
federal Government, rather than the States, has "paramount rights
in and power over" the territorial sea, "an incident to which is full
dominion over the resources of the soil under that water area,
including oil." United States v. California, 332 U.S. 19, 38-39, 67
S.Ct. 1658, 1668, 91 L.Ed. 1889 (1947). In 1953, in the Submerged
Lands Act, Congress relinquished to the coastal States the title to
and ownership of submerged lands within a three-mile belt, and up
to nine miles for some States. 43 U.S.C. ? 1301-15. Congress also
"approved and confirmed" the "seaward boundary" of each coastal
State at three miles from its coastal line, subject to the right of
some States to claim a larger historic title. 43 U.S.C. ? 1312.
c. Internal waters and ports. In general, maritime ports are
open to foreign ships on condition of reciprocity, see Reporters'
Note 3, but the coastal state may temporarily suspend access in
exceptional cases for imperative reasons, such as the security of the
state or public health. It may condition entry of a foreign ship into
its internal waters or ports on compliance with its laws and regula-
tions. The coastal state may also exercise jurisdiction to enforce
international standards with respect to some activities that occurred
prior to entry into its ports or internal waters (for example, illegal
discharge of pollutants). LOS Convention, Article 218, see, e.g.,
Lauritzen v. Larsen, 345 U.S. 571, 577, 73 S.Ct. 921, 925, 97 L.Ed.
1254 (1953). In principle, the coastal state may exercise jurisdiction
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Ch. 2 COASTAL AND PORT STATES ? 512
with respect to a ship in port and over activities on board such ship,
but in practice coastal states usually have little interest in exercis-
ing jurisdiction over such activities, except when the peace of the
port is disturbed. See Reporters' Note 5. With respect to war-
ships, see ? 513, Comment h.
1. Coastal state sovereignty
over territorial sea. Early in the
20th century, the status of the terri-
torial sea was still debated, some
seeing it as part of the high seas
with only a few specific rights con-
ceded to the coastal states. The
sovereignty of the coastal state in
the territorial sea was later accept-
ed as customary international law
and confirmed in the 1958 Conven-
tion on the Territorial Sea and the
Contiguous Zone, Arts. 1 and 2.
See also LOS Convention, Art. 2.
2. United States territorial sea
and rights of States. In 1947, the
Supreme Court held that the three-
mile belt of the territorial sea was
"in the domain of the Nation" and
that, in consequence, the United
States was "possessed of para-
mount rights in, and full dominion
and power over, the lands, minerals
and other things" underlying the
sea to the extent of three nautical
miles measured from the low-water
mark on the coast or from the outer
limit of inland waters; and that the
coastal States had "no title thereto
or property interest therein." Unit-
ed States v. California, 332 U.S. 19,
67 S.Ct. 1658, 91 L.Ed. 1889 (1947);
see also United States v. Louisiana,
339 U.S. 699, 70 S.Ct. 914, 94 L.Ed.
1216 (1950); United States v. Texas,
339 U.S. 707, 70 S.Ct. 918, 94 L.Ed.
1221. The Submerged Lands Act of
1953 ceded to the coastal States all
the property rights of the United
States in submerged lands within
the three-mile belt (and up to nine
miles in the Gulf of Mexico to
States able to establish a historic
title to such broader area). The Act
vested in the States "the right and
power to manage, administer, lease,
develop and use" the submerged
land and natural resources of the
ceded area, "all in accordance with
applicable State law." The United
States retained, however, "powers
of regulation and control of said
lands and navigable waters for the
constitutional purposes of com-
merce, navigation, national defense,
and international affairs." 43
U.S.C. ? 1301-15. For disputes be-
tween the United States and several
coastal States with respect to the
boundary between the inland waters
and the territorial sea, see ? 511,
Reporters' Note 3.
The States have long applied their
laws to activities in the territorial
sea, and State courts have adjudi-
cated disputes arising from activi-
ties there. The decision in United
States v. California did not purport
to modify the State's authority in
those respects; the Submerged
Lands Act in fact affirmed and ap-
proved the area as being within
"the seaward boundary of each
original coastal State." But an as-
sertion of a wider territorial sea by
the United States (as would be per-
missible under ? 511(a) and Article
3 of the LOS Convention; but see
? 511, Comment d) would not itself
give rights in the additional zone to
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the adjacent States. Unless Con-
gress determined otherwise, the
zone between three and twelve
miles would be under the exclusive
authority of the Federal Govern-
ment.
3. Access to ports. It has been
said that, as no civilized state has
"the right to isolate itself wholly
from the outside world," there is "a
corresponding obligation imposed
upon each maritime power not to
deprive foreign vessels of commerce
of access to all of its ports." 1
Hyde, International Law Chiefly as
Interpreted and Applied by the
United States 581 (2d ed. 1945).
The LOS Convention does not men-
tion a right of access of ships to
foreign ports, but the customary
law on the subject, as reflect in a
number of international agree-
ments, has been confirmed by at
least one international decision.
Thus, the Statute on the Interna-
tional Regime of Maritime Ports of
1923, confirmed the freedom of ac-
cess to maritime ports by foreign
vessels on condition of reciprocity;
but it allows the coastal state "in
exceptional cases, and for as short a
period as possible," to deviate from
this provision by measures which
that state "is obliged to take in case
of an emergency affecting the safe-
ty of the state or the vital interest
of the country." 58 L.N.T.S. 285,
301, 305; 2 Hudson, International
Legislation 1162 (1931). Although
this Statute has been ratified by
less than 30 states and the United
States is not a party to it, the Stat-
ute has been accepted as reflecting
a customary rule of international
law. An arbitral tribunal, relying
on this Statute, stated that
"[a]ccording to a great principle of
international law, ports of every
State must be open to foreign
merchant vessels and can only be
closed when the vital interests of a
State so require." Saudi Arabia v.
Arabian American Oil Company
(ARAMCO), Award of August 23,
1958, 27 Int'l L.Rep. 117, 212 (1963).
The Institute of International
Law has considered this issue in
1898, 1928, and 1957, and each time,
after a heated discussion, it af-
firmed the right of access to ports,
subject to various conditions. In
1898, the Institute agreed that, as a
general rule, access to ports "is pre-
sumed to be free to foreign ships,"
except when a state, "for reasons of
which it is sole judge," declares its
ports, or some of them, closed
"when the safety of the State or the
interest of the public health justifies
the order," or when it refuses en-
trance to ships of a particular na-
tion "as an act of just reprisal."
Resolutions of the Institute of In-
ternational Law 144 (J. Scott ed.
1916). In 1928, the Institute stated
that, as a general rule, access to
ports "is open to foreign vessels,"
but, as an exception and for a term
as limited as possible, "a state may
suspend this access by particular or
general measures which it is obliged
to take in case of serious events
touching the safety of the state or
the public health"; it also confirmed
the exception in case of reprisals.
Institut de Droit International, Tab-
leau General des Resolutions, 1873-
1956, at 102 (Wehberg ed. 1957); 22
Am.J.Int'l L. 844, 847 (1928). In
1957, the Institute distinguished be-
tween internal waters and ports,
and pointed out that a coastal state
may deny access to internal waters,
"[s]ubject to the rights of passage
sanctioned either by usage or by
treaty," but should abstain from de-
nying such access to foreign com-
mercial vessels "save where in ex-
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Ch. 2 COASTAL AND PORT STATES
ceptional cases this denial of access States and Belgium, Brussels, 1961,
is imposed by imperative reasons." provides that "[v]essels of either
On the other hand, the Institute de- Contracting Party shall have liber-
clared that "it is consistent with ty, on equal terms with vessels of
general practice of States to permit the other Party and on equal terms
free access to ports and harbors by with vessels of any third country, to
such vessels." [1957] 2 Annuaire come with their cargoes to all ports,
de l'Institut de Droit International places and waters of such other
485-86. For discussion, see id. 171, Party open to foreign commerce
180, 194-98, 202-09, 212-22, 253-67; and navigation. Such vessels and
for the text of the 1957 resolution, cargoes shall in the ports, places
see also 52 Am.J.Int'l L. 103 (1958). and waters of such other Party be
It seems, therefore, that it is now accorded in all respects national
generally accepted that "in time of treatment and most-favored-nation
peace, commercial ports must be treatment." Art. 13, 14 U.S.T.
left open to international traffic," 1284, T.I.A.S. No. 5432, 480 U.N.
and that the "liberty of access to T.S. 149. See also [1957] 2 An-
ports granted to foreign vessels im- nuaire de l'Institut de Droit Interna-
plies their right to load and unload tional 209, 216 (according to Paul de
their cargoes; embark and disem- La Pradelle, "the many conventions
bark their passengers." Colombos, on commerce and navigation which
The International Law of the Sea provide for [access to ports] have
176 (6th ed. 1967). But see Khediv- established a rule of customary
ial Line, S.A.E. v. Seafarers' Inter- law," but others contended that all
national Union, 278 F.2d 49, 52 (2d these treaty provisions would have
Cir.1960) (plaintiff presented no been superfluous if this right of ac-
precedents showing that "the law of cess were based on customary law).
nations accords an unrestricted The parties to the Convention on
right of access to harbors by ves- the Facilitation of International
sels of all nations"); Lowe, "The Maritime Traffic, London, April 9,
Right of Entry into Maritime Ports 1965, agreed to adopt "all appropri-
in International Law," 14 San Diego ate measures to facilitate and expe-
L.Rev. 597, 622 (1977) ("the ports of dite international maritime traffic
a State which are designated for and to prevent unnecessary delays
international trade are, in the ab- to ships [in port] and to persons and
sence of express provisions to the property on board." Art. 1, and
contrary made by a port State, pre- Annex, para. 2.12, 18 U.S.T. 411,
sumed to be open to the merchant T.I.A.S. No. 6251, 591 U.N.T.S. 265.
ships of all States," and they See also ? 501, Reporters' Note 3.
"should not be closed to foreign States may impose, however, spe-
merchant ships except when the
good order, or security of the cial restrictions on certain catego-
peace, coastal State necessitates closure"). ries of ships. For instance, the Con-
vention on the Liability of
The general principle of open Operators of Nuclear-Powered
ports is confirmed by many bilateral Ships, Brussels, 1962, provides that
agreements. For instance, the nothing in that Convention "shall
Treaty of Friendship, Establishment affect any right which a Con-
and Navigation between the United tracting State may have under in-
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 THE LAW OF THE SEA
Pt
V
.
ternational law to deny access to its as well as overflight rights have to
waters and harbours to nuclear be specifically conferred. See
ships licensed by another Con- ? 513, Comment i.
tracting State
e
? 512
,
ven when it has for-
mally complied with all the provi-
sions" of that Convention. Art.
XVII, 57 Am.J.Int'l L. 268 (1963).
See also Reporters' Note 1. In
1985, New Zealand denied to United
States nuclear ships access to its
Ports. See 21 Weekly Comp.Pres.
Does. 147 (1985). A directive of the
Council of the European Economic
Community regulates the entry into
Community ports of oil, gas, and
chemical tankers, Dec. 21, 1978, 22
O.J. Eur.Comm. (No. L. 33) 33
(1979); amended Dec. 11, 1979, id.
(No. L. 315) 16 (1979). Access to
ports by other categories of vessels
(e.g., fishing vessels) may also be
subject to various restrictions.
A coastal state can condition the
entry of foreign ships into its ports
on compliance with specified laws
and regulations. This jurisdiction
to prescribe may extend even to
4. Access to United States
coastal waters and ports. The
marine pollution provisions of the
Clean Water Act of 1977 were en-
acted in part as a result of naviga-
tion accidents, such as that of the
tanker Argo Merchant, which
caused considerable damage to the
marine environment. The Act pro-
hibited discharge of oil or hazardous
substances into or upon the waters
of the contiguous zone established
by the United States pursuant to
Article 24 of the 1958 Convention on
the Territorial Sea and the Contigu-
ous Zone, or in other waters where
activities "may affect natural re-
sources belonging to, appertaining
to, or under the exclusive manage-
ment authority of the United States
(including resources under the
Magnuson Fishery Conservation
and Management Act)" (16 U.S.C.
?? 1801 et seq.), i.e., within 2nn
er-
nal affairs of the ship. See Patter- territorial troSea. ba331ine J. tC.
son v. Bark Eudora, 190 U.S. 169, ? 1321(a)(9) and (b)(1) and (3). Fn-
178, 23 S.Ct. 821, 824, 47 L.Ed. 1002 forcement authority under this Act
(1903) (prohibiting prepayment of was limited, however, to the waters
seamen's wages by certain foreign of the 12-mile contiguous zone. Id.
vessels). See ? 513, Comment c. ? 1321(m).
More recently, coastal state jurisdic-
tion has been expanded to allow the Jurisdiction within the 200 mile
state to take steps in the territorial zone was reasserted by the Port
sea necessary to prevent any breach U.S.C. andTanker ? 1221, wSafetyhich Act de efin neded8,th he
of the conditions imposed by the e
state on ships proceeding to its in- marine environment subject to the
terna] waters or to a port facility Act as including not only the navi-
outside these waters. See 1958 gable waters of the United States
Convention on the Territorial Sea but also "the waters and fishery
and the Contiguous Zone, Art. 16(2); resources of any area over which
LOS Convention, Art. 25. the United States asserts exclusive
shanaement authority," as
The principles governing interna- we
lleas "the seabed and subsoil of
tional aviation differ from those the Outer Continental Shelf of the
governing shipping; landing rights United States, the resources thereof
some matters relating to the int
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? 512
ship voluntarily enters a port, it be-
comes subject to the jurisdiction of
the coastal state. Cunard S.S. Co.
v. Mellon, 262 U.S. 100, 124, 43 S.Ct.
504, 507, 67 L.Ed. 894 (1923); Benz
v. Compania Naviera Hidalgo, S.A.,
353 U.S. 138, 142, 77 S.Ct. 699, 1
L.Ed.2d 709 (1957). See ? 502,
Comment d.
The coastal state "may out of
considerations of public policy
choose to forego the exertion of its
jurisdiction or to exert the same in
only a limited way, but this is a
matter resting solely within its dis-
cretion." Cunard S.S. Co. v. Mellon,
supra, at 124, 43 S.Ct. at 507. As
was pointed out in Wildenhus's
Case, from experience it was found
long ago that "it would be benefi-
cial to commerce if the local govern-
ment would abstain from interfer-
ing with the internal discipline of
the ship, and the general regulation
of the rights and duties of the of-
ficers and crew toward the vessel or
among themselves." Therefore, it
became generally understood that
"all matters of discipline and all
things done on board which affected
only the vessel or those belonging
to her, and did not involve the peace
or dignity of the country, or the
tranquillity of the port, should be
left by the local government to be
dealt with by the authorities of the
nation to which the vessel be-
longed." 120 U.S. 1, 12, 7 S.Ct. 385,
387, 30 L.Ed. 565 (1887), reiterated
in Lauritzen v. Larsen, 345 U.S. 571,
585-86, 73 S.Ct. 921, 930, 97 L.Ed.
1254 (1953). On the other hand, "if
crimes are committed on board of a
character to disturb the peace and
tranquillity of the country to which
the vessel has been brought, the
offenders have never by comity or
usage been entitled to any exemp-
tion from the operation of the local
laws for their punishment, if the
local tribunals see fit to assert their
authority." Wildenhus's Case, su-
pra, at 12, 7 S.Ct. at 387 (United
States law was applied to murder
committed on board a foreign ship
in a United States port).
Jurisdiction over foreign vessels
in port is frequently limited by bilat-
eral agreement. See, e.g., United
States-United Kingdom Consular
Convention, 1951, Art. 22, 3 U.S.T.
3426, T.I.A.S. No. 2494, 165 U.N.
T.S. 121.
The authority of the coastal state
generally applies to ships "voluntar-
ily in port," not to ships driven to
take refuge in a port by force
majeure or other necessity. See
Kate A. Hoff Claim (United States
v. Mexico, 1929), 4 R.Int'l Arb.
Awards 444 (1951); but see Cushin
and Lewis v. The King, [1935] Can.
Exch. 103, [1933-34] Ann. Dig. 207
("putting into port under constraint
does not carry any legal right to
exemption from local law or local
jurisdiction"). See also statement
by Secretary Webster, August 1,
1842, 2 Moore, Digest of Interna-
tional Law 353, 354 (1906).
For a study of the treatment by
different states of foreign merchant
vessels in port, see reports by the
UNCTAD Secretariat, U.N.Docs.
TD/B/C.4/136 (1975) and TD/B/
C.4/158 (1977).
6. Warships and other govern-
ment ships operated for noncom-
mercial purposes. A warship
(? 501, Reporters' Note 1) in a for-
eign port must comply with the
laws and regulations of the coastal
state relating to navigation and
safety. See LOS Convention, Art.
21(1) and (4); see also Harvard Re-
search in International Law, The
Law of Territorial Waters, 23 Am.J.
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Int'l L. Spec. Supp. 328 (1929). For
an example of such legislation, see
the Spanish order of March 23,
1958, Art. 6, U.N. Legislative Se-
ries, National Legislation and Trea-
ties Relating to the Law of the Sea
145, 148 (U.N. Pub. ST/LEG/
SER.B/19) (1980). If any such ship
does not comply with port regula-
tions, the flag state is international-
ly responsible for any damage
caused, and the ship may be re-
quired to leave the port. See LOS
Convention, Arts. 30-31.
The coastal state has no jurisdic-
tion over offenses committed on
board foreign warships or other
government ships operated for non-
commercial purposes. See Busta-
mante Code of Private International
Law, Havana, 1928, Art. 300, 86
L.N.T.S. 111, 4 Hudson, Internation-
al Legislation 2279, 2323 (1931).
(The United States is not a party to
this instrument.) Under interna-
tional law, government-owned ves-
sels not used for commercial pur-
poses enjoy immunity from arrest,
attachment, or execution. See
? 457, Reporters' Note 7. But
there is no immunity for a foreign
public vessel from a maritime lien
based upon a commercial activity of
the foreign state. See ? 455(4) and
Reporters' Note 3 thereto.
7. Additional jurisdiction to
adjudicate by port state. Tradi-
tionally, except for cases within
general admiralty jurisdiction, a
port state's jurisdiction to adjudi-
cate claims against foreign ships
was ordinarily limited to activities
by or on board a ship navigating or
at anchor in a port. In the 1970s,
several international agreements re-
lating to marine pollution broadened
the jurisdiction of the port state to
allow that state to deal with viola-
? 512
tions of international environmental
regulations that occurred on the
high seas or in the waters of anoth-
er state. This allows a state to
inspect any ship stopping at one of
its ports to determine whether it
has committed an environmental vi-
olation anywhere in the world, and
to report the results of the inspec-
tion to the flag state. Thus, port
jurisdiction has been enlarged from
a limited jurisdiction to a general
jurisdiction for all port states. See
?? 603-604; see also M'Gonigle and
Zacher, Pollution, Politics and Inter-
national Law 231-34, 249-51 (1979).
Maritime states objected to a
coastal state's stopping a ship pass-
ing through coastal waters, because
the cost of stopping a large tanker
was considered very high, but they
were willing to accept investigative
and judicial proceedings conducted
while the ship was loading or unload-
ing in a port. It was also agreed
that the ship itself must be permit-
ted to proceed upon posting a bond
or other appropriate security, and
that only monetary penalties may be
imposed, except in the case of a will-
ful and serious act of pollution in the
territorial sea. The compromise has
been codified in Arts. 218, 228, and
230 of the LOS Convention. See al-
so ? 514, Comment i.
A European agreement of 1982
established common standards for
port state control. See ? 603, Re-
porters' Note 2. The UNCTAD Sec-
retariat concluded that there did not
appear to be any evidence that such
control was being used to discrimi-
nate against ships of any particular
flag state. UNCTAD Secretariat,
International Maritime Legislation:
Treatment of Merchant Vessels in
Ports at Regional Level, U.N. Doc.
TD/B/C.4/275, at 11 (1984).
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