No CrossRef data available.
Article contents
Jurisdiction Over Foreign Merchant Ships in the Territorial Sea: An Analysis of the Geneva Convention on the Law of the Sea*
Published online by Cambridge University Press: 28 March 2017
Extract
The conclusion of the United Nations Conference on the Law of the Sea in 1958 has occasioned many commentaries by authorities on international law. Scant attention, however, has been paid to that part of the Conference dealing with jurisdiction over foreign merchant ships in the territorial sea. This is surprising in view of the centuries-old controversy affecting the interests of a vast number of ship-owners and seafarers. Indeed, the importance of the width of the territorial sea would not have assumed such serious proportions but for the fact that its determination would secure for the coastal states jurisdiction over a specific portion of the sea.
- Type
- Research Article
- Information
- Copyright
- Copyright © American Society of International Law 1961
Footnotes
*
The substance of this study was undertaken at the Hague Academy of International Law by the author in his capacity as a participant of the Center for Studies and Research in International Law and International Relations in August-October, 1959. The author wishes to express his grateful acknowledgment to the Hague Academy as well as the Center’s director, Mr. E. Lauterpacht, for making this study possible. The views expressed herein, however, are the personal views of the author.
References
1 86 nations participated in this Conference in Geneva, from Feb. 24 to April 28, 1958. See Final Act, U.N. Doc. A/Conf. 13/L.58. Four conventions were adopted: (Jouvention on the Territorial Sea and the Contiguous Zone (U.N. Doc. A/Conf. 13/ L.52) ; Convention on the High Seas (U.N. Doc. A/Conf. 13/L.53) ; Convention on Fishing and Conservation of the Living Resources of the High Seas (U.N. Doc. A/Conf. 13/L.54); and Convention on the Continental Shelf (U.N. Doc. A/Conf. 13/L.55) ; reprinted in 52 A.J.I.L. 834-861 (1958).
2 See, for example, Dean, Arthur H., “The Geneva Conference on the Law of the Sea: What Was Accomplished,” 52 A.J.I.L. 607-628 (1958)Google Scholar; Marjorie M. Whiteman, “Conference on the Law of the Sea: Convention on the Continental Shelf,” ibid. 629-659; Max Sørensen, “Law of the Sea,” International Conciliation, No. 520 (November, 1958); Jessup, Philip C., “The United Nations Conference on the Law of the Sea,” 59 Columbia Law Rev. 234-268 (1959)CrossRefGoogle Scholar; SirFitzmaurice, Gerald, “Some Results of the Geneva Conference of the Law of the Sea,” 8 Int. and Comp. Law Q. 73-121 (1959)CrossRefGoogle Scholar; D. H. N. Johnson, “The Preparation of the 1958 Geneva Conference on the Law of the Sea,” ibid. 122-145; “The Geneva Conference on the Law of the Sea,” 13 Year Book of World Affairs 68-94 (1959); Grigory I. Tunkin, “The Geneva Conference on the Law of the Sea,” International Affairs (Moscow, July, 1958), pp. 47-52 ; Loftus Becker, “The Breadth of the Territorial Sea and Fisheries Jurisdiction,” 40 Dept. of State Bulletin 369-374 (1959).
3 The second United Nations Conference on the Law of the Sea, in which 87 nations were represented, met in Geneva from March 16 to April 27, 1960. This conference, like the 1958 Conference, failed to delimit the breadth of the territorial sea. A joint Canadian-United States proposal for a six-mile territorial sea coupled with an additional six-mile fishing zone was narrowly defeated by a vote of 54 in favor, 28 against, and 5 abstentions, which lacked the necessary two-thirds’ majority. For concise and lucid articles on the development and significance of the conference, see Dean, Arthur H., “The Second Geneva Conference on the Law of the Sea,” 54 A.J.I.L. 751 (1960)Google Scholar; François, J. P. A., “Second International Conference on the Law of the Sea,” 6 U.N. Review 12-14 (June, 1960)Google Scholar ; Bowett, D. W., “The Second United Nations Conference on the Law of the Sea,” 9 Int. and Comp. Law Q. 415-436 (1960)CrossRefGoogle Scholar. See also a series of U.N. documents under A/CONF. 19, some of which have been republished as annexes to Official Records; and New York Times, March 18, 1960, p. 51, col. 1; April 27, 1960, p. 1, col. 6; April 28, 1960, p. 20, col. 2.
4 As used in this convention, the word “jurisdiction” refers exclusively to the exercise of the judicial and associated functions in contradistinction to the exercises of the legislative or executive jurisdiction. “Judicial jurisdiction” is exercised “ by a formal decision of an officer or body acting judicially.” See American Law Institute, Restatement on “Jurisdiction” (1930), § 76. Accordingly, excluded from the purview of Arts. 19 and 20 are such governmental acts as the levying of charges for services rendered, routine inspection of ships’ papers, the drawing up and enforcement of customs, traffic, sanitary and other regulations by port authorities, etc.
5 See Art. 21. For rules applicable to fishing vessels, government ships operated for non-commercial purposes, and warships, see Arts. 14(5), 22, and 23, respectively. The provisions of Art. 14(5) appear to support the Ecuadorian position that a coastal state has the right to compel foreign fishing vessels engaging in innocent passage to observe such laws and regulations it may make so as to ensure their non-fishing in the territorial sea. See Selak, Charles B. Jr., “Pishing Vessels and the Principle of Innocent Passage,” 48 A.J.I.L. 627-635 (1954)Google Scholar, concerning the U. S.-Ecuadorian fishery dispute.
6 In view of the numerous and oft-conflicting concepts of “innocent passage,” a precise definition is impossible. It is generally agreed, however, that, as a minimum, such passage includes peaceful navigation through the territorial sea without entering internal waters, as well as stopping and anchoring insofar as the same are incidental to ordinary navigation or are rendered necessary by distress or force majeure. See “The Legal Status of the Territorial Sea” in 3 League of Nations, Acts of the Conference for the Codification of International Law 213: Territorial Waters (V. Legal, 1930. V. 16), Art. 3(3) of the Draft. See also 3 Gidel, Le Droit International Public de la Mer 204-291 (1932-34); Smith, The Law and Custom of the Sea 35 et seq. (2nd ed., 1950); Philip C. Jessup, The Law of Territorial Waters and Maritime Jurisdiction 123 (1927); Harvard Research Draft on “The Law of Territorial Waters,” 23 A.J.I.L. Spec. Supp. 241-380 (1929), Arts. 14 and 17 with Comments.
With respect to the question whether innocent passage includes navigation through the territorial sea for the purpose of entering or leaving internal waters, there is no agreement. The Harvard Research Draft (Art. 14, Comment) and Professor Jessup (p. 123), for example, hold that such navigation is excluded from the meaning of “innocent passage,” while the Geneva Convention (Art. 14(2) and (4)) includes such navigation as constituting “innocent passage.”
7 ? The status of ships in the 5th category should have been regulated under Sec. III: Right of Innocent Passage, although neither Art. 19 nor Art. 20 makes any reference to it.
8 Jessup, op. cit. 123.
9 The territorial sea is different from internal (also called interior or national) waters in that the latter are assimilated to the land territory and are not subject to the right of innocent passage by foreign vessels. Art. 8 of the Geneva Convention provides : “For the purpose of delimiting the territorial sea, the outermost permanent harbour works which form an integral part of the harbour system shall be regarded as forming part of the coast.” This definition does not exclude the possibility that a ship can be “in port” while at the same time outside “the outermost permanent harbour works” —hence, in the territorial sea.
See, on the other hand, the view of Colombos (International Law of the Sea 74 (4th ed., 1959)), who defines a “port” as being within the “interior or national waters.”
10 3 L. N. Acts of the Conference 181. See also Art. 30 of the “Règlement sur le régime légal des navires et de leurs équipages dans les ports étrangères,” adopted Ъу the Institute of International Law at its 1898 session at The Hague, 17 Annuaire de Droit International 273 (1898) :
“Par exception, les faits commis à bord des navires dans un port, qui ne constituent que des infractions à la discipline et aux devoirs professionnels du marin, ne relèvent que de la justiee nationale du bord. L’autorité locale doit s’abstenir d’intervenir, à moins que son concours ne soit régulièrement réclamé, ou que le fait ne soit de nature à troubler la tranquillité du port. Même dans ce dernier cas, le juridiction locale ne peut devenir compétente que si le fait constitue, en même temps qu’une infraction disciplinaire; un délit de droit commun.”
11 3 L. N. Acts of the Conference 191.
12 Ibid. 196.
13 58 L. N. Treaty Series 276; 22 A.J.I.L. Supp. 69-82 (1928).
14 3 L. N. Acts of the Conference 212.
15 See discussion under Criminal Jurisdiction and Civil Jurisdiction below.
16 Report of the International Law Commission Covering the Work of Its Eighth Session (1956), U.N. General Assembly, 11th Sess., Official Records, Supp. No. 9 (A/3159); 51 A.J.I.L. 154 (1957). The Commentary to Art. 20 (p. 64) reads: “In the case of a ship lying in the territorial sea, the jurisdiction of the coastal State should be regulated by the State’s own municipal law. Such jurisdiction is more extensive than in the case of ships which are simply passing through the territorial sea along the coast. This applies also to ships which have called at a port or left a navigable waterway in the coastal State; the fact that a ship has moored in a port and had contact with the land, taken on passengers, etc., increases the coastal State’s powers in this respect.” (Emphasis supplied.)
17 See similar provisions in the Observations on Art. 8 of the Draft Report of the First Sub-Committee of the Hague Codification Conference of 1930, in 3 L. N. Acts of Conference 205.
18 See, for example, Ecuador, Code of Criminal Procedure (1955 ed.), Art. 3(5), U.N. Leg. Ser., Laws and Regulations on the Regime of the Territorial Sea 335-336 (hereinafter referred to as U.N.L.S.) ; Denmark, Order No. 290 of Nov. 15, 1932, concerning prosecution in respect of offenses committed on board foreign vessels in Danish territory, Lovtidende A, July-December, 1932, No. 54, Nov. 21, 1932, p. 1867, U.N.L.S. 335; Cuba, Code of Social Defense, April 4, 1936, L. Jiménez de Asúa and F. Carsi Zaearés, Códigos Penales Iberoamericanos (1946), Vol. I, pp. 856-858, Art. 7(B), U.N.L.S. 334; France, Avis du Conseil d’Etat du 20 novembre 1806, 5 Bulletin des Lois 602 (3e série), U.N.L.S. 336-337; Italy, Instructions of the Minister of the Interior to police officials, April 4, 1867, cited in Prospero Fedozzi, “Des Délits à Bord des Navires Marchands dans les Eaux Territoriales Etrangères,” 4 Rev. gén. de Droit int. pub. 211 (1897) ; Japan, Regulation concerning the function of judicial police officials (Instruction of the Chief of the Criminal Affairs Bureau, Ministry of Justice), December, 1923, Art. 132, U.N.L.S. 343.
19 See, for example, the cases of The Sally and The Newton (France), 5 Bulletin des Lois 602 (3e série); The Aïbissola (Italy), Il Diritto Marittimo (1931), 1929-30 Annual Digest 105; The Forsattning (France), 17 Rev. de Lég. et Jurispr. 143 (1843) ; Due Sorelle (Tunisia, France), 30 Journal Clunet 162; The Godfrey (Palermo, Italy), cited in Fedozzi, “Des Délits à Bord des Navires Marchands dans les Eaux Territoriales Etrangères,” 4 Rev. gén. de Droit int. pub. 211 (1897) ; Le Ministère public o. Gennaro Pastore et Consorts (Belgium), 1883 Pasicrisie Belge, II, 122; Seamen of the Merchant Ship Amphitrite v. The Captain, Gamboni Mazzitelli (Chile), 2 Revista de derecho y jurispr. II, sec. 2, p. 159 (1904).
20 See, for example, the following treaties or consular conventions : Japan-Belgium, 1896 (88 Brit, and For. State Papers 410), Art. 11; U. S.-Germany, 1923 (U. S. Treaty Series, No. 725), Art. 23; Italy-Czechoslovakia, 1924 (34 League of Nations Treaty Series (hereinafter referred to as L.N.T.S.) 105), Art. 21; Germany-Soviet Union, 1925 (53 L.N.T.S. 165), Art. 25; Germany-Estonia, 1925 (51 L.N.T.S. 264), Art. 21; France-Poland, 1925 (73 L.N.T.S. 265), Art. 25; U. S.-Finland, 1934 (152 L.N.T.S. 45), Art. 25; U. S.-Costa Rica, 1948 (70 United Nations Treaty Series (hereinafter referred to as U.N.T.S.) 27), Art. 10; Philippines-Spain, 1948 (70 U.N.T.S. 143), Art. 15; Greece-Lebanon, 1948 (87 U.N.T.S. 381), Art. 27; U. S.-Ireland, 1950 (222 U.N.T.S. 107), Art. 23(2); U. S.-U. K., 1951 (165 U.N.T.S. 121), Art. 22(2); U. K.-Norway, 1951 (Norway, St. pap. No. 47 (1951)), Art. 27 (2); U.K.-France, 1951 (Cmd. 8457 (France)), Art. 40(2); U. K.-Sweden, 1952 (202 U.N.T.S. 157), Art. 27(2); U. K.Greece, 1953 (191 U.N.T.S. 151), Art. 28(2) ; U. K.-Mexico, 1954 (Cmd. 9162 (Mexico)), Art. 29(2); U. K.-Italy, 1954 (Cmd. 9193 (Italy)), Art. 29(2); France-Sweden, 1955 (mimeographed text from the French Embassy, Washington), Art. 37; U. K.-Federal Republic of Germany, 1956 (Cmd. 5 (Germany)), Art. 32(2).
21 3 L. N. Acts of the Conference 212-217.
22 The expression “ne tombent pas” was used in Art. 7 of the Projet de règlement relatif á la Mer Territoriale, 33 Annuaire 100 (1927, I). See also the use of the words “sont, comme tels, en dehors” in Art. 6 of the 1894 Eègles sur la définition et le régime de la mer territoriale, 13 Annuaire 329 (1894-95).
23 See the U. S. amendment to Basis of Discussion No. 22, 3 L. N. Acts of the Conference 196.
24 U.N. Doc. A/Conf. 13/C.1/L.41.
25 U.N. Doc. A/Conf. 13/C.1/L.42.
26 See the two preceding notes.
27 3 U.N. Conference on the Law of the Sea 119 (A/Conf. 13/39).
28 Ibid, at 124.
29 Ibid, at 125.
30 Ibid, at 119.
31 Ibid, at 125.
32 Ibid.
33 Ibid, at 117, 125; 2 ibid. 66 (A/Conf. 13/38).
34 For an analysis and comparison of these two doctrines and their impact on state practices, see, generally, C. John Colombos, International Law of the Sea 277-287 (4th ed., 1959) ; Herbert W. Briggs, The Law of Nations 349-354 (2nd ed., 1952) ; Philip C. Jessup, The Law of Territorial Waters and Maritime Jurisdiction, Ch. 3 (1927) ; 1 Hyde, International Law 735-743; 2 Hackworth, Digest of International Law 208-242 (1941) ; 2 Gidel, Le Droit International Public de la Mer 165-252 (1932-34) ; Joseph Imbart Latour, La Mer Territoriale 281-306 (1889).
It should be noted that the Harvard Research Draft on “The Legal Position and Functions of Consuls” (26 A.J.I.L. Supp. 281 (1932)) leans towards the U. S. position. Art. 11(g) proposes that consuls be authorized “to adjust matters pertaining to the internal order and discipline of such vessels, including differences between members of the crew pertaining to wages and the execution of contracts related thereto, to the extent that the authorities of the receiving state do not exercise jurisdiction.” (Emphasis supplied.)
With respect to the practice of Latin American states, there is no uniformity. Some states, indeed, adopt the Anglo-American as well as the French approaches simultaneously. The majority of them, however, adhere to the continental approach. Thus, the “Bustamante Code” of the Convention on Private International Law, signed at the Sixth International Conference of American States in Havana, 1928 (86 L.N.T.S. 120; 22 A.J.I.L. Spec. Supp. 273-327 (1928)) provides that “The obligations of the officers and seamen and the internal order of the vessel are subject to the law of the flag” (Art. 281), and that the penal laws of the coastal state are inapplicable with respect to “offences committed in territorial waters or in the national air, on foreign merchant vessels or aircraft, if they have no relation with the country and its inhabitants and do not disturb its tranquillity” (Art. 301). This convention was ratified by fifteen Latin American states up to September, 1956.
On the other hand, the Treaty on International Penal Law, signed at Montevideo in 1940 (8 Hudson, International Legislation 482 (1938-41)) provides: “Crimes committed on board vessels other than vessels of war shall be tried and punished by the judges or tribunals, and according to the laws of the State in whose territorial waters a given vessel was located at the time when such a crime was committed.” (Art. 10.) This treaty, until December, 1955, was ratified only by Uruguay and thus not in force. It was, however, signed by six other Latin American states, among which Bolivia, Brazil, and Peru were also signatory Powers to the “Bustamante Code”! Likewise, the treaty concerning international criminal law signed at Montevideo in 1889 (18 Martens, Nouveau Recueil General de Traites 433 (2eme serie)) states: “If an offence is committed on board a merchant vessel, the offender shall be tried and punished in conformity with the law of the State in the territorial waters of which the vessel was lying at the time of the offence.” (Art. II.) This treaty has been ratified by Argentina, Bolivia, Paraguay, Peru, and Uruguay, among which Bolivia and Peru were also signatory Powers to the “Bustamante Code” !
35 See Jessup, The Law of Territorial Waters 192 ; Colombos, International Law of the Sea 286.
36 Art. 11 provides :
“1. In the event of a collision or of any other incident of navigation concerning a ship on the high seas, involving the penal or disciplinary responsibility of the master or of any other person in the service of the ship, no penal or disciplinary proceedings may be instituted against such person except before the judicial or administrative authorities either of the flag State or of the State of which such person is a national.
“2. In disciplinary matters, the State which has issued a master’s certificate or a certificate of competence or licence shall alone be competent, after due legal process, to pronounce the withdrawal of such certificates, even if the holder is not a national of the State which issued them.
“3. No arrest or detention of a ship, even as a measure of investigation, shall be ordered by any authorities other than those of the flag State.”
37 The Commentary to Art. 21(2) of the I.L.C. draft, as well as the observations on Art. 9 (2nd sentence) of the Hague Convention (3 L.N. Acts of the Conference 215), upon which Art. 20(2) of the Geneva Convention was modeled, specifically mentioned “collision” as a situation to be covered by these articles.
38 United Kingdom, Parl. Papers, 1952-53, Vol. XXIX, Cmd. 8954 ; 53 A. J.I.L. 536 (1959).
39 Ibid. 532.
40 120 U. S. 1 (1887). See also The State v. Dave Johnson Plazen, Costa Rica, Court of Cassation (1928), 1927-28 Annual Digest, Case 99.
41 21 Stat. 123.
42 It should be noted that even French courts are occasionally inclined toward adopting “moral disturbance” as test of jurisdiction. Thus, in the case of The Tempest, 1 Dalloz 88 (1859), an American officer killed one sailor and wounded another on board the American ship in the port of Havre. The officer gave himself up to the French authorities for protection against attempted lynching by American sailors who rioted on shore. The lower court commenced criminal prosecution against him, claiming jurisdiction on the grounds that the American consul did not seek jurisdiction, that the officer gave himself up, and that the ensuing disturbance required French actions. The officer’s appeal for annulment of the decree on the ground that the court was incompetent was rejected by the Court of Cassation, which held: “It is a principle of international law that each state has sovereign jurisdiction throughout the extent of all its territory.” Conceding that foreign merchantmen could not be subjected to the territorial jurisdiction except when the interests of the local state are involved, the Court nevertheless said that each state was interested in the repression of crimes committed in its ports, not only by foreign crew members against outsiders, but even where only the crew was involved. In the latter case, the local authorities would be concerned “when the act is of a nature to compromise the tranquillity of the port, or when the intervention of the local authority is requested, or when the act constitutes a common crime of such gravity as not to permit any nation to leave it unpunished.” (Emphasis supplied.) Though a mere dictum, the last proviso, according to Professor Jessup, “has apparently been fully accepted in France,” thus marking “an extension of the earlier doctrine, implying that no actual disturbance is necessary if the crime is sufficiently heinous.” The Law of Territorial Waters and Maritime Jurisdiction 148.
43 6 El Foro 194; Hudson, Cases on International Law 630 (1929).
44 See also People v. Wong Cheng, 46 Philippine E. 729 (1922), in which the Philippine Supreme Court ruled that opium-smoking on board a foreign vessel anchored in the port of Manila constituted a breach of public order. In an earlier decision, U. S. v. Look Chaw, 18 Philippine B. 573 (1911), however, the Court said that mere possession of opium on board a foreign vessel in the territorial sea did not constitute such a breach.
45 The Pakistani Delegation specifically mentioned Art. 19(1) (a) in this connection, although Art. 19(1) (b) could conceivably have covered this situation also.
46 3 U.N. Conference on the Law of the Sea 81.
47 See statement made by the British Delegation, ibid, at 116.
48 By the Norwegian Delegation, ibid.
49 By the Turkish Delegation, ibid.
50 By the Norwegian Delegation, ibid.
51 By the Norwegian Delegation, ibid.
52 The lack of enthusiasm for the Pakistani amendment was reflected in the large number of abstentions in the vote taken in the First Committee: 33 to 8, with 30 abstentions (ibid, at 117). Par. 1 of Art. 19, as amended, however, was adopted by a vote of 64 to 0, with 7 abstentions (ibid.), and Art. 19 as a whole, as amended, was adopted at the Plenary Session by a vote of 80 to none (2 ibid. 66).
53 Ibid, at 116.
54 U.N. Doc. A/Conf. 13/C.1/L.33.
55 3 U.N. Conference on the Law of the Sea 117.
56 See, for example, 1 Oppenheim-Lauterpacht, International Law 838 (8th ed., 1955) ; Stuart, Graham H., American Diplomatic and Consular Practice 312-321 (2nd ed., 1952)Google Scholar ; Julius I. Puente, The Foreign Consul 59-67 (1926) ; Ferdinand de Cussy, Eèglements Consulaires 20-23 (1851) ; 4 Hackworth, Digest of International Law 877- 947; Lee, Luke T., Consular Law and Practice, Ch. 8 (London: Stevens and Sons, 1961)Google Scholar.
57 See the note from the Polish Government to the British Ambassador, Sir Donald St. Clair Grainer, dated May 16, 1949, text in Polski Instytut Spraw Międzynarodowych, Zbiór Dokumentów, 1949, No. 5, pp. 365-78, especially p. 373.
58 See the reply from the British Government to Ambassador Michałowski of Poland, dated June 7, 1949, text ibid., No. 8, pp. 698-725, especially pp. 704-705.
59 United Kingdom, General Instructions to His Majesty’s Consular Officers (1949), Sec. XXIII-6.
60 Canada, Department of External Affairs, Instructions for the Guidance of Officers Performing Consular Duties (with amendments up to March 12, 1951), Sec. XXIII-53.
61 185 L.N.T.S. 303, Art. 26(4).
62 Austria, Eegierungsvorlage, 39 der Beilagen zu den stenographischen Protokollen des Nationalrates IX. GP. (9.9. 1959), Art. 28. Similar provisions requiring that consuls be informed of any impending investigation, arrest, or seizure of property on board vessels of the sending state by authorities of the receiving state may be found in the following consular conventions: U. S.-Ireland 1950, Art. 23(3); U. K.-Norway, 1951, Art. 27(3); U. K.-France, 1951, Art. 40(3); U. K.-Sweden, 1952, Art. 27(3); U. K.-Greeee, 1953, Art. 28(3); U. K.-Mexico, 1954, Art. 29(3); U. K.-Italy, 1954, Art. 29(3) ; Prance-Italy, 1955 (mimeographed text from the French Embassy, Washington), Art. 36; U. K.-Federal Republic of Germany, 1956, Art. 32(5); Australia-Greece, 1956 (Australia, Treaty Series, 1956, No. 5, invoking U. K.-Greeee, 1953) ; Poland-German Democratic Republic, 1957 (340 U.N.T.S., No. 4862), Art. 26(3); and Hungary-German Democratic Republic, 1957 (Hungarian Gazette, No. 51 (June 8, 1958), Art. 20(2).
63 See 2 Hackworth, Digest of International Law 224-228, 641-642 ; 1 Hyde, International Law 746-749 ; 2 Moore, Digest of International Law 855-883 ; Colombos, International Law of the Sea 248-249; 2 Gidel, Le Droit International Public de la Mer 181-200.
On Oct. 14, 1959, the 6th Committee of the U.N. General Assembly adopted by a roll-call vote of 63 to 1, with 12 abstentions, a proposal of El Salvador (U.N. Doc. A/0.6/L.443) requesting the International Law Commission to codify international law relating to the right of asylum “as soon as it considers it advisable.” A draft declaration on the right of asylum, originally proposed by Trance, was adopted by the U.N. Commission on Human Rights on March 15, 1960, by a vote of 12 to 0, with 3 abstentions. The U.N. Economic and Social Council, at its 30th Session, approved the draft declaration for transmission to the General Assembly for consideration at its 15th Session. 7 U.N. Review 29, 83 (1960).
64 U.N. Doc. A/Conf. 13/C.1/L.20.
65 U.N. Doc. A/Conf. 13/C.1/L.37.
66 Page 63.
67 3 L.N. Acts of the Conference 215.
68 The vote in the First Committee was 50 to 5, with 18 abstentions. See 3 U.N. Conference on the Law of the Sea 117. For the vote at the Plenary Session, see note 52 above.
69 Ibid, at 116.
It may be noted that the Turkish position at the Geneva Conference was consistent with its stand taken in The Lotus case (P.C.I.J., Series A, No. 10). In this case, the Permanent Court of International Justice, by a close vote of 7 to 6, affirmed Turkey’s right to exercise criminal jurisdiction over a French merchant marine officer who was charged with manslaughter in connection with a collision between a French and a Turkish ship on the high sea. However, under the 1952 Brussels Convention for the Unification of Certain Rules relating to Penal Jurisdiction in Matters of Collision or Other Incidents (note 38 above, Arts. 1 and 2), the exercise of criminal jurisdiction over collision cases on the high sea has been reserved to the flag state. Under the Geneva Convention on the High Seas (Art. 11(1)), such jurisdiction may alternatively be exercised by the state of which the person involved is a national.
70 3 U.N. Conference on the Law of the Sea 81.
71 See Commentary (1) to Art. 21 of the I.L.C. draft, p. 65; Observations on Art. 9 of the Hague Convention, in 3 L.N. Acts of the Conference 215.
72 Ibid. 205.
73 Department of State, Arbitration Series, No. 6, American and Panamanian Claims Arbitration, under the Conventions of July 28, 1926, and Dec. 17, 1932, Report of Bert L. Hunt, Agent for the United States (1934), p. 765 et seq. See also description of this case and comments by Jessup and Edwin M. Borchard in 27 A.J.I.L. 747-750 (1933), and 29 A.J.I.L. 103-104 (1935), respectively.
74 38 Can. Sup. Ct. 303, 311.
75 Commenting on the Geneva Conference, Professor Jessup said: “At present it seems safe to say that it was a successful conference and that irrespective of the fate of some of the conventions, the Conference achieved enough clarification and wide enough measure of agreement to have justified the very considerable effort.” “The United Nations Conference on the Law of the Sea,” 59 Columbia Law Rev. 234 (1959).
76 Mr. Arthur Dean, Chairman of the United States Delegation to the conference, considered the four conventions adopted at Geneva as encompassing “a surprisingly large area of agreement.” “The Geneva Conference on the Law of the Sea: What Was Accomplished,” 52 A.J.I.L. 607 (1958).
77 Professor Max Sørensen, Chairman of the Danish Delegation, concluded: “The law of the sea as it stands today is in many respects more certain and definite than it was before the Geneva Conference. . . . Nobody who studies the four conventions with an unprejudiced mind can fail to be favorably impressed by the wide range of subjects regulated.” “Law of the Sea,” International Conciliation, No. 520 (November, 1958), p. 253.
78 Sir Gerald Fitzmaurice, deputy leader of the United Kingdom Delegation, commented that “From the point of view of the codification of international law, the Conference and its results must be regarded as something of a landmark.” “Some Results of the Geneva Conference on the Law of the Sea,” 8 Int. and Comp. Law Q. 74 (1959).
79 The Soviet delegate, Professor Grigory I. Tunkin, praised the conventions as “undoubtedly an important step forward in the development of international law and its codification.” “The Geneva Conference on the Law of the Sea,” International Affairs (Moscow, July, 1958), p. 52.
80 Commenting on the narcotics clause, Sir Gerald Fitzmaurice wrote:
“This addition was morally impossible to object to, but it is none the less technically unfortunate. It does not reflect current international practice, and does not have the same features as are common to the other cases.” “Some Results of the Geneva Conference on the Law of the Sea,” loc. cit., p. 105.
81 3 U.N. Conference on the Law of the Sea 117. Par. 2 of Art. 19, as amended, was adopted by 68 votes to none, with 4 abstentions (ibid.). See note 52 above, for the vote on the whole of Art. 19, as amended.
82 U.N. Doc. A/Conf. 13/C.1/L.41.