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Published online by Cambridge University Press: 21 May 2009
Of all the four Conventions the second Convention conforms most nearly with existing customary law and its contents are, at the same time, the most varied of them all. They comprise, in fact, all the traditional solutions to the various problems to which the regime of the high seas has, through the centuries, given rise. They almost form an extract from the many textbooks of public international law dealing with the high seas and there is hardly an element of surprise or novelty in them.
42 Comp. the general part of this paper, p. 4, note 3.
43 Costa Rica in the mean-time withdrew from the group.
44 Nottebohm Case (Liechtenstein v. Guatemala) (Second phase): Judgment of April 6th, 1955: I.C.J. Reports 1955, p. 4.Google Scholar
45 Compare the amendments successively tabled by the delegations of France (A/Conf.13/C.2/L.6), Brazil (C.2/L.11, with Rev. 1). Jugoslavia (C.2/L.16), the Netherlands (C.2/L.22, with Corr. 1, 2 and 3), Italy (C.2/L.28, with Corr. 1 and 2), German Federal Republic (C.2/L.39), Spain (C.2/L.60), the United Kingdom (C.2/L.86) and again France (C.2/L.93).
46 Except, of course, by the delegations of the countries directly concerned, see: Liberia (C.2/L.12, with Rev. 1) and Panama (C.2/L.104).
47 Publications P.C.I.J., series A, No. 10. This ruling was already set aside by the Brussels Conference which in 1952 dealt with the subject of penal jurisdiction in matter of collision or other incidents of navigation (Convention of May 10, 1952).
48 A few remarks may suffice to show this. Article 21, designating the State organs which only may carry out a seizure on account of piracy, should logically have preceded the provisions of Articles 19 (on subsequent criminal prosecution) and 20 (on liability for damages in case of established unjustified seizure).— Whereas the definition of specified illegal acts as piracy in Article 15 contains as an essential element their being committed for private ends by the crew or the passengers of a private ship or a private aircraft, the introductory words of Article 16, dealing with other possible delinquents, seem to have forgotten that element.
49 Article 22 does not take into account all these variants. See below and footnote 51.
50 “On the high seas, or in any other place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft, or a ship taken by piracy and under the control of pirates, and arrest the persons and seize the property on board. The courts of the State which carried out the seizure may decide upon the penalties to be imposed, and may also determine the action to be taken with regard to the ship, aircraft or property, subject to the rights of third parties acting in good faith (my italics, J.H.W.V.).”
51 What about control exercised by a military aircraft, or by other ships or aircraft on government service authorized to the effect—Article 21—, what about a warship or other government ship whose crew has mutinied, and which is suspected of being engaged in piracy—Article 16—and what about action against a suspected pirate aircraft, either above the high seas or “in a place outside the jurisdiction of any State”—Article 15 (1)?
52 It deals with “hot pursuit” only in its paragraphs 1–5 and, in a sense, in paragraph 7. Sandwiched between these two sets of provisions is a paragraph 6, dealing with something quite different (escort of a ship, arrested within the jurisdiction of a State, to a port ofthat State across a portion of the high seas).— Para. 3, dealing with the beginning of the pursuit after para. 2, dealing with its termination, makes an unclear distinction between pursuit “not deemed to have begun unless…” and “pursuit which may only be commenced”. Etc. The Netherlands delegation tried in vain to redraft the Article by an amendment (A/Conf.13/C.2/L.98).
53 A Mexican amendment (A/Conf.13/C.2/L.4), with a Peruvian sub-amendment (A/Conf.13/C.2/L.35), intended to allow hot pursuit also from a fishery zone in the high seas in which the coastal State has a special interest, was rightly rejected.
54 The text of Article 14 continues by saying “according to the law of that State”, as if a fishing vessel of State A could possibly have the nationality of that State according to the law of State B or to—non existing—general customary rules of international law.
55 The term “area adjacent to the territorial sea” cannot be identical with “contiguous zone”, since no express provision concerning delimitation would then have been necessary.
56 Third States are obliged to do this not later than seven months after the date at which the original measures were notified to the Secretary-General of the Food and Agricultural Organization. This would again seem to be a somewhat pointless provision, as it may very well happen that fishing vessels of third States engage in fishing in the area concerned only after expiry of the seven months' term.
57 The requirements which must be fulfilled are the following:
(a) that there is a need for urgent application of conservation measures in the light of the existing knowledge of the fishery;
(b) that the measures adopted are based on appropriate scientific findings;
(c) that such measures do not discriminate in form or in fact against foreign fishermen.
58 Whereas para. 2 of Article 57 of the I.L.C. draft gave the parties a period of three months from the date of the request for arbitration to name any member, after expiry of which only, the other party could make a request for their appointment by the Secretary-General, and the latter could begin his consultations, para. 5 surprisingly prescribed that the commission should “in all cases be constituted within three months from the date of the original (?) request”.
59 Article 9, para. 2, states this only for the case of appointment by the Secretary-General and does not state the same about the appointment by agreement between the parties. But what sense would para. 3 (“Any State party to the proceedings under these articles shall have the right to name one of its nationals … etc.”, as further quoted in the text above) have, if this requirement of impartiality in the members of the commission did not equally apply to the latter variant of appointment?
60 This provision is notoriously inadequate because it only provides that the Security Conseil may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment of the Court.
61 Compare the general part of this paper, p. 6 and note 9.
62 This South-African initiative carried the day over similar Ecuadorian proposals (A/Conf.13/C.3/L.89 and A/Conf.13/L.42), which were more stringent.
63 To the exclusion of wrecks at the bottom of the sea, being no “resources”. In this sense already the I.L.C.
64 This definition originated from a joint amendment of the delegations of Australia, Ceylon, the Malay Federation, India, Norway and the United Kingdom (A/Conf.13/C.4/L.36) which ended by expressly eliminating crustacea and swimming species from the definition. The definition itself was adopted, but the final words, inserted by Committee IV, were in the event struck out by the Plenary.
65 Burma and Jugoslavia, seconded by Iceland and Peru, defended inclusion of “bottom fish” in the sedentary species.
