As ports are under the territorial sovereignty of the coastal State, that State may regulate
foreign vessel’s entry to its ports. Indeed, the ICJ, in the Nicaragua case, clearly stated: ‘It is
also by virtue of its sovereignty that the coastal State may regulate access to its port.’ One
can say, therefore, that there is no right of entry into ports of foreign States in customary
international law. In this regard, the 1958 Aramco award, which upheld the right of ships
to access to ports under customary international law, does not seem to conform entirely
with State practice.
In fact, it is not uncommon that nuclear-powered ships and ships carrying nuclear or
other noxious substances can enter a port only with the permission of the coastal State.
The coastal State is empowered to establish particular requirements for the entry of foreign
vessels into their ports in order to prevent pollution from vessels in accordance with Article
211(3) of the LOSC. In the case of ships proceeding to internal waters or a call at a port
facility outside internal waters, the coastal State has the right to take the necessary steps to
prevent any breach of the conditions to which admission of those ships to internal waters or
such a call is subject pursuant to Article 25(2). A foreign warship has no automatic right to
enter into internal waters or ports of another State, without diplomatic clearance.
In practice, sea communication would be much disturbed without access to ports. Thus,
many bilateral treaties of ‘Friendship, Commerce and Navigation’ confer rights of entry to
ports for foreign merchant ships. For instance, Article XIX(2) of the 1956 Treaty of
Friendship, Commerce and Navigation between the Netherlands and the United States of
America stipulates: ‘Vessels of either Party shall have liberty . . . to come with their cargoes
to all ports, places and waters of such other Party open to foreign commerce and navigation.’
As for multilateral treaty provisions, Article 2 of the 1923 Geneva Convention and
Statute on the International Regime of Maritime Ports provides:
Subject to the principle of reciprocity and to the reservation set out in the first paragraph of
Article 8, every Contracting State undertakes to grant the vessels of every other Contracting
State equality of treatment with its own vessels, or those of any other States whatsoever, in the
maritime ports situated under its sovereignty or authority, as regards freedom of access to the
port, the use of the port, and the full enjoyment of the benefits as regards navigation and
commercial operations which it affords to vessels, their cargoes and passengers.
It can be presumed that normally the ports of the coastal State are open to merchant vessels
unless otherwise provided.