2.2 Coastal State jurisdiction in internal waters and navigational rights of foreign merchant ships
Internal waters are part of the water area on the landward side of the baseline of the territorial sea of the Coastal State.(1) UNCLOS, supra note 11, Article 8. As the name suggests, internal waters are waters enclosed within the territory of the Coastal States, where the Coastal States exercise their full sovereign rights as recognised by international law.(2) E.K. Mbiah, ”Coastal, Flag and Port State Jurisdictions: Powers and Other Considerations Under UNCLOS,“ in Maritime Law in Motion (Cham: Springer International Publishing, 2020), p. 497, accessed September 30, 2023, https://doi-org.ezproxy.uio.no/10.1007/978-3-030-31749-2_23. Full sovereignty implies the supreme power of the Coastal States – independence in external affairs and supremacy in internal affairs.(3) Jacobsen, supra note 29, pp. 23-24.
Considering jurisdiction, under public international law it generally refers to the legal competence of Coastal States to affect the conduct of others through prescriptive (regulatory or “law-making”) and enforcement measures.(4) Haijiang Yang, Jurisdiction of the Coastal State over Foreign Merchant Ships in Internal Waters and the Territorial Sea (Berlin, Heidelberg: Springer Berlin Heidelberg, 2006), pp. 35-40, accessed September 29, 2023, https://doi.org/10.1007/3-540-33192-1. Under the UNCLOS framework, prescriptive jurisdiction refers to the authority vested in Coastal States to prescribe laws and regulations pertaining to activities conducted within their marine zones.(5)Ibid. Thus, Article 2(1) of UNCLOS acknowledges the Coastal State unrestricted legislative competence within internal waters(6) UNCLOS, supra note 11, Article 2(1). – each state possesses the power to establish conditions for navigation, pilotage, fishing, and other activities that are binding for all domestic and foreign vessels.(7) The Fridtjof Nansen Institute. FNI Report 3/2006 on Coastal State Jurisdiction and Vessel Source Pollution, pp. 15-18. Available on: https://www.fni.no/getfile.php/131705-1469868985/Filer/Publikasjoner/FNI-R0306.pdf. Accessed October 13, 2023. Respectively, there is no requirement to acknowledge the right of innocent passage of foreign ships and the subsequent navigational freedoms, unless there are specific circumstances that warrant an exception.(8) James Kraska, ”The Regimes of the Law of the Sea,” in Maritime Power and the Law of the Sea: Expeditionary Operations in World Politics (Oxford Academic, 2011), p. 114, accessed October 1, 2023, https://doi.org/10.1093/acprof:oso/9780199773381.003.0003. This implies that foreign vessels can only access the internal waters of the Coastal States upon obtaining their consent, and any state possesses the prerogative to entirely prohibit the entry of foreign vessels into its internal waters.(9)Ibid.
Enforcement jurisdiction pertains to the power to enforce rules and initiate legal proceedings through adjudication in courts or by the competent administrative bodies of a State.(10) Yang, supra note 35. So, the Coastal States may not only prescribe laws but also enforce them by executive or adjudicative means against foreign merchant ships as well as the crew members, passengers, and goods aboard.(11) Anne Bardin, ”Coastal State's Jurisdiction over Foreign Vessels,“ Pace International Law Review 14 (1) (2002): pp. 30-31, accessed September 20, 2023, https://doi.org/10.58948/2331-3536.1188. In instances of non-compliance, the Coastal States retain the prerogative to conduct inspections on vessels operating within their internal waters(12) UNCLOS, supra note 11, Article 220(1), 226, 218., as well as possess the authority to detain vessels that are found to be in contravention of said laws, and may impose penalties, fines, or sanctions upon the vessels or individuals involved.(13)Ibid.
Nevertheless, the exercise of jurisdiction in internal waters is not unlimited and is subject to limitations imposed by international law. Coastal States as a corollary, also have a duty not to allow their internal waters to be used for acts impairing the rights of other States(14) Yang, supra note 35, pp. 47-48., as reinforced by the “checks and balances” framework outlined in Article 211(1,3).(15) UNCLOS, supra note 11, Article 211(1,3). This framework necessitates that the laws and regulations implemented by Coastal States to protect the environment and prevent pollution from vessels be communicated to competent international maritime organization (hereinafter “IMO”) and should align with generally applicable international rules and standards (hereinafter “GAIRAS”) enshrined in IMO conventions.(16) Myron H. Nordquist, Satya N. Nandan, and James Kraska, eds, UNCLOS 1982 Commentary (Leiden, The Netherlands: Brill | Nijhoff, 2012), pp. 802, 806, 844-845, accessed October 2, 2023, https://doi-org.ezproxy.uio.no/10.1163/9789004215627.