Normally the civil jurisdiction of the coastal State is not exercised in connection with disputes of a private nature arising between members of the crew. In relation to criminal jurisdiction, international lawyers have been accustomed to contrasting the Anglo-American position with the French position.
According to the Anglo-American position, the coastal State has complete jurisdiction over foreign vessels in its ports. Nonetheless, as a matter of comity, the coastal State may refrain from exercising its jurisdiction over those vessels. This position was echoed by the United States Supreme Court in the 1887 Wildenhus case. In this case, the US Supreme Court took the view that ‘by comity’, all matters of discipline and all things done on board which affected only the vessel should be dealt with by authorities of the nation to which the vessel belonged.
According to the French position, the coastal State has in law no jurisdiction over purely internal affairs on foreign vessels in its ports. This position derived from the opinion of the French Conseil d’Etat in the Sally and Newton cases in 1806. These two cases involved two American ships in French ports. In both cases, one member of the crew assaulted another.
The Conseil d’Etat declared that local jurisdiction did not apply to matters of internal discipline or offences by members of a crew, unless the peace and good order of the port were affected, or the local authorities were asked for assistance. As aptly pointed out by Gidel, however, the opinion of the Conseil d’Etat of 1806 did not completely deny the territorial jurisdiction of the coastal State over offences committed on board foreign ships in French ports. The opinion merely declared that the coastal State would not exercise its jurisdiction in certain cases. In fact, a French court, in the 1859 Tempest case, held that homicide of a fellow crew member compromised the peace of the port, and therefore brought the ship under local jurisdiction. As a matter of practice, therefore, the points of difference between the two positions appear to be minimal.
In modern practice, the scope of criminal jurisdiction of the coastal State over foreign merchant ships is provided by specific consular conventions. Recent State practice seems to be generally consistent on the following matters.
(i) Foreign ships entering a port are subject to the sovereignty of the coastal State and that State has criminal jurisdiction over them. However, the coastal State does not exercise criminal jurisdiction over matters involving solely the internal discipline of the ship.
(ii) The coastal State will exercise criminal jurisdiction in the following cases:
(a) when an offence caused on board the ship affects or is likely to affect the peace and order or the tranquility of the port or on land, or its interests are engaged,
(b) when its intervention is requested by the captain, or the consul of the flag State of the vessel,
(c) when a non-crew member is involved,
(d) when an offence caused on board the ship is of a serious character, usually punishable by a sentence of imprisonment for more than a few years,
(e) when matters which do not concern solely the ‘internal economy’ of a foreign ship, such as pollution and pilotage, are involved.
(iii) It is solely the coastal State which may determine the existence of a situation as described above.
A particular issue that arises in this context concerns the immunity of foreign warships in internal waters. The key provision in this matter is Article 32 of the LOSC:
With such exceptions as are contained in subsection A and in articles 30 and 31, nothing in this Convention affects the immunities of warships and other government ships operated for noncommercial purposes.
The question of interest here is whether this provision is applicable to internal waters. The 2012 ARA Libertad case shed some light on this subject. A pivotal issue of this case relates to the legality of Ghana’s detention of the ARA Libertad, a frigate of Argentina, in its port.
In this case, ITLOS noted that the geographical scope of Article 32 was not specified. According to the Tribunal, although Article 32 is included in Part II of the Convention entitled ‘Territorial Sea and Contiguous Zone’, some of the provisions in this Part may be applicable to all maritime areas, as in the case of the definition of warships provided for in LOSC Article 29. Thus the Tribunal unanimously prescribed the provisional measure that ordered Ghana to forthwith and unconditionally release the frigate ARA Libertad.
Members of the crew ashore on duty or official mission are immune from the local jurisdiction, when committing breaches of local law. Members of the crew committing breaches of local law when ashore on leave and recovering the ship are also immune from the local jurisdiction. It is debatable whether political asylum may be granted on board in positive international law. However, it seems beyond doubt that slaves on board shall be free because slavery is prohibited in international law. In this respect, Article 13 of the Geneva Convention on the High Seas and Article 99 of the LOSC explicitly hold that: ‘Any slave taking refuge on board any ship, whatever its flag, shall ipso facto be free.’