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The regime of maritime port access: a relook at contemporary international and United States law.

I. Introduction

The United Nations Law of the Sea Convention of 1982 ("LOS Convention") (1) is one of the most historic and groundbreaking multi-lateral treaties in world history. (2) Seeking to create a new and comprehensive legal regime of the world's oceans, (3) the LOS Convention encompasses nearly every use of the oceans resources. (4) Not only does the LOS Convention codify existing concepts of the ocean law, such as the territorial sea and contiguous zone, it also creates radically new maritime zones; such as the exclusive economic zone, archipelagic waters, and international straits. (5) Accordingly, the LOS Convention provides detailed articles on both the rights and duties of the coastal State, as well as the freedoms and restrictions of ocean-going vessels in each respective maritime zone. (6)

Despite its groundbreaking work, the LOS Convention only superficially deals with the issues of navigational rights in inland waters and ports. Aside from one narrow article regarding the right of innocent passage in internal waters, once considered part of a coastal State's territorial sea, (7) the LOS Convention provides only definitional articles. It defines internal waters as "waters on the landward side of the baseline of the territorial sea," (8) and it defines ports as "the outermost permanent harbour works which form an integral part of the harbour system, regarded as forming part of the coast." (9) Thus, the extent of the LOS Convention is to delineate internal waters and ports from the territorial sea.

At first glimpse, the omission of any port or inland water regime in the LOS Convention appears logical. Internal waters and port access look as if to be two legal constructs beyond the scope and remit of international law of the sea. (10) As Article 2 of the LOS Convention conveys, the sovereignty of a State encompasses both its territory and its inland waters. (11) As such, the legal regime for inland waters (in which ports are included) would logically be governed by a legal regime more akin to the domestic territorial law of a State rather than international law of the sea. (12) However, despite the LOS Convention's apparent omission of inland transit rights, a great body of international law on the scope and right of port access does exist.

This article addresses whether merchant vessels have a legally-based right to enter a maritime port of a foreign country. More precisely, this article will discuss the scope and application of international maritime law, whether based in customary or treaty law, as it applies to the right of foreign-flagged, sea-going vessels to enter ports that reside geographically in the internal waters of another State. (13)

This question has been debated over the years, (14) leading to extremely divergent answers. The authors of the Restatement of the Law (Third), Foreign Relations of the United States ^'Restatement") conclude that a customary right exists in favor of port entry to foreign-flagged vessels. Other authors agree by rationalizing that States are legally obligated to maintain open ports due to the general right and interest in free trade and navigation; however, this conclusion is far from certain. Legal evidence and most modern scholarly commentary on the issue conclude otherwise.

This article examines and clarifies the international regime of port access. In order to adequately address the issue, this article will identify and analyze the specific sources pointed out by the Restatement, as well as other relevant sources. (15) After fully examining all relevant legal sources, the article will conclude that although sea-going ports are presumed to be open to foreign-flagged vessels under customary law and typically remain open in accordance with treaty obligations, no legal obligation exists for States to maintain open ports based on customary international law.

II. THE RESTATEMENT OF THE LAW (THIRD), FOREIGN RELATIONS OF THE UNITED STATES

In answering the question of whether a right exists in customary international law to access foreign ports by merchant vessels, a practitioner or judge is likely to rely upon the Restatement. (16) The authors of the Restatement claim their endeavor is "to express [international] law as it would be pronounced by a disinterested tribunal, whether of the United States or some other national state or an international tribunal." (17) Arguably, this well respected publication reflects a neutral and impartial view of international law. (18)

With respect to the issue of port access, the Restatement provides ample discussion on the subject in its Comments and Reporters' Notes. (19) The Restatement declares that the right of access to foreign ports is reflective of customary international law, (20) asserting that "[i]n general, maritime ports are open to foreign ships on condition of reciprocity...." (21) It does add, however, that a State may deny access "temporarily," and only in "exceptional cases for imperative reasons, such as the security of the state or public health." (22)

The Restatement affirms the conclusion drawn from its predecessor, the Restatement (Second) of Foreign Relations Law of the United States, which states that "[i]n the case of vessels not in military service, the ports of a state are open to their visit without any prior notification, except where the state has expressly provided otherwise." (23) Furthermore, the American Institute of Law concludes that foreign-flagged merchant vessels maintain a general right of access to ports, based on reciprocity, during times of peace. (24)

The Restatement authors base their conclusion on select academic readings, bilateral and multilateral conventions, reports of the Institute of International Law, and legal dicta from one obscure international arbitration tribunal. The Restatement's discussion on the issue of port access would ordinarily be considered as an accurate and proper reading of the law. Moreover, scholarship exists to support the Restatement's assertions. However, other commentaries draw different conclusions and some even criticize the Restatement's reliance on these select sources as oversimplified, misleading, or mistreated. (25)

III. COMMENTARY ON THE RIGHT OF PORT ACCESS

The Restatement draws upon three academic sources to justify the existence of a customary right to port entry. Hyde (26) and Colombos (27) are quoted as supporting this position. (28) Oddly however, the Restatement misrepresents A.V. Lowe. (29) Without explanation, the Restatement selects portions of Lowe's text to insinuate that the author finds that a customary right of port entry exists. (30) The Restatement quotes Lowe as stating '"the ports of a State which are designated for international trade are, in the absence of express provisions to the contrary made by a port State, presumed to be open to the merchant ships of all States,' and they 'should not be closed to foreign merchant ships except when the peace, good order, or security of the coastal State necessitates closure.'" (31) While the author supports the notion that ports of a State are presumed open, he does not advocate a general notion of a right-of-port State access. (32) The Restatement fails to include Lowe's certainty that "customary international law establishes no basis for a right of entry into maritime ports." (33) In other words, according to Lowe, a coastal State may close its ports to foreign shipping whenever it chooses, subject only to a right of entry granted under treaty. (34)

Despite ongoing debate by numerous authors, the Restatement refers to only three publications, grossly misrepresenting one of them, to state a right-of-port entry exists under customary international law within the academic community. However, the Restatements' conclusion is far from settled. In fact, most modern scholarly works conclude that a right-of-port entry does not exist. (35) The following discussion provides a thorough survey of academic writings addressing both sides of the issue of foreign ship port access.

A. COMMENTARY FOR A CUSTOMARY RIGHT OF PORT ACCESS

One school of thought expresses the notion that ports of States are open to foreign merchant vessels as a right. (36) This paradigm has been advocated by numerous scholars, beginning with Grotius in the 17th century. (37)

In 1609, Hugo Grotius published De Mare Liberum, (38) which is considered the founding scholarly work to pronounce the legal doctrine of the freedom of the seas. (39) Grotius contends that oceans are incapable of occupation, thus no State can lay sovereign claim to them. (40) The oceans and seas, he asserts, are free to all nations. (41) An important corollary to his freedom of the seas principle was the notion that no sovereign could deny port access to a foreign merchant ship. (42) Grotius wrote:
   I shall base my argument on the flowing most specific and
   unimpeachable axiom of the Law of Nations, called a primary rule or
   first principle, the spirit of which is self-evident and immutable,
   to wit: Every nation is free to travel to every other nation, and
   to trade with it. (43)


He added, "[i]ndeed the most famous jurists extend its application so far as to deny that any state or any ruler can debar foreigners from having access to their subjects and trading with them." (44) Hence, Grotius articulates a general right of access to foreign ports. (45)

Grotius' beliefs have been adopted by various international law scholars. (46) For example, Colombos asserts that "in time of peace, commercial ports must be left open to international traffic. The liberty of access to ports granted to foreign vessels implies their right to load and unload cargoes; embark and disembark their passengers." (47) He added that the State's sovereign power is not limitless when denying access to its ports; rather, barring foreign ships port use implies "a neglect of the duties of the promotion of international intercourse, navigation and trade which customary international law imposed upon it." (48) Likewise, Hyde states that:
   No civilized State appears to be regarded as having the right to
   isolate itself wholly from the outside world or to remain [fee]
   from all commercial or economic intercourse with it, there would
   seem to be a corresponding obligation imposed upon each maritime
   power not to deprive foreign vessels of commerce of access to all
   of its ports. (49)


Moreover, Cundick maintains that "[j]ust as the high seas freedom of navigation is meaningless if states do not have access to the sea, it is also meaningless if vessels cannot cross the territorial sea of a state to enter the port of a third state which desires to trade with them." (50) In addition, Foulke supports this view by stating that "the case where an independent state will prohibit the entry of mercantile vessels to its ports except in time of war or under some particular temporary circumstances of quarantine etc. would be almost unthinkable." (51) Finally, Wolff articulates a similar belief, noting that "[s]ince nations are bound to facilitate commerce [and] ports tend to facilitate commerce by sea, nations are bound to make ports for the sake of maritime commerce and fortify them, in order that they can be defended against a hostile force, and security thus be furnished to merchants." (52)

Like Grotius, these authors contend that a general right of access is derived through the existence of a right of free trade and intercourse. (53) Moreover, some authors assert the right to port access by virtue of a right of navigation. (54) Finally, others maintain a per se customary international law on the right of port access by foreign vessels. (55)

B. COMMENTARY AGAINST THE CUSTOMARY RIGHT OF PORT ACCESS

Despite the support of the previously mentioned prominent authors, the majority of modern scholars have adopted the opposite position regarding the customary right to port access. (56) This school of thought advances the notion that no general right of port entry exists; but rather, States have the right to deny entry to their ports. (57)

These writers acknowledge that ports should be open for the benefit of trade, intercourse and navigational purposes; however, they claim that these governmental interests do not confer a general right to port entry. For example, Degan maintains that "[t]he general practice of the free access of merchant ships of almost all nations to almost all commercial ports is based upon convenience and economic interest, and in the absence of treaty provisions, it is not based upon any sense of legal obligation." (58) Moreover, Hakapaa writes that "it might be desirable to keep the ports open anytime and anywhere, but from a legal point of view there is hardly any obligation to do so." (59) In addition, Kasoulides states:
   [t]here is general agreement that the commercial interest of states
   and the need for competitiveness and communication have led to the
   present situation under which most of the world's maritime ports
   are open to international trade and traffic. At the same time, it
   is recognized that this is, rather a reflection of a common will
   between sovereign states, and it does not ensue from any customary
   obligations. (60)


While acknowledging an economic need to have ports open to foreign ships, these authors assert that States have the authority to turn away foreign vessels from their ports under the principle of sovereignty attributed to inland waters. (61) The consensus is that littoral States are free to control access to their ports through the exercise of their sovereign control over their inland waters, just as they maintain access to their territorial land. (62)

The vast majority of modern scholars assert that no right to access ports by foreign merchant vessels exists based on customary international law. Therefore, these authors assert that States maintain the right to deny entry of a foreign vessel to its ports by virtue of their sovereignty.

IV. THE 1923 GENEVA CONVENTION ON THE INTERNATIONAL REGIME OF MARITIME PORTS

The primary source cited by those supporting the existence of a general right to port access is the Geneva Convention and the Statute on the International Regime of Maritime Ports of 1923. (63) The 1923 Ports Convention and its attached Statute came into force in 1926 and has subsequently been ratified by only forty States. (64) Despite the low number of maritime States who have ratified the Statute, the Restatement and other advocates purport that this multilateral treaty reflects customary international law. (65) Dupey and Vignes argue that the 1923 Ports Convention "expresses a rule which, apart form certain limitations, is accepted by international practice, since it is tantamount to extending into ports the rule of freedom of the high seas...." (66)

The right of port access is expressed in Articles 1 through 7 of the Statute. Article 2, the most important provision, states:
   [s]ubject to the principle of reciprocity . . . , 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 State whatsoever, in the maritime ports situated under its
   sovereignty or authority, as regards freedom of access to the
   ports, the use of port, and fully enjoyment of the benefits as
   regards navigation and commercial operations which it affords to
   vessels, their cargoes and passengers. (67)


The "equality of treatment" covers facilities of all kinds, such as allocation of berths and loading and unloading facilities, as well as dues and charges levied in the name of the Government, public authorities, concessionaires or undertakings of any kind. (68) Article 2 does not declare an absolute right to port access; rather, the article purports to guarantee "equality of treatment" as applied to "freedom of access to the ports" conditioned on the "principle of reciprocity." (69) The Statute further limits the right to maritime ports "used for foreign trade" and "normally frequented by sea-going vessels," (70) which includes "publicly or privately owned or controlled" vessels, but does not include "warships or vessels performing police or administrative function[s]." (71) Moreover, the Statute does not apply to "the rights and duties of belligerents and neutrals in time of war." The Statute also excludes fishing vessels (73) and those involved in "maritime coasting trade." (74) In addition, the Statute permits a contracting State to deviate from the principle of equal treatment among sea-going vessels "in case of an emergency affecting the safety of the State or the vital interests of the country." (75) However, any such deviation must be "for as short a period as possible," because prescribed obligations and rights "must be observed to the utmost possible extent." (76)

V. ARAMCO ARBITRATION TRIBUNAL DECISION

The principle of port access was deemed customary international law thirty-five years later in the ARAMCO Tribunal Arbitration of 1958 ("Tribunal"). (77) The case involves a narrow interpretation of a contract dispute between the Arabian American Oil Company and the Saudi Arabian government. (78) However, in dicta, the Tribunal announced a general obligation of all littoral States to grant port access to foreign-flagged vessels. (79) The Tribunal proclaimed that "[according to a great principle of public international law, the ports of every State must be open to foreign merchant vessels and can only be closed when the vital interest of the State so require." (80)

The Tribunal recognized a sovereignty interest of a State in controlling its ports. (81) Nevertheless, it rationalized its bold assertion of customary international law by stating that "the territorial sovereignty of the State over its means of communication is not unrestricted. It can only be exercised within the limits of customary international law, of the treaties the State has concluded and the particular undertakings it has assumed." (82)

The Tribunal claimed that this customary right of port entry was derived from Article 16 of the Statute to the 1923 Ports Convention. (83) However, the article does not directly address the issue of port access, but details the authority of a State to deny port entry during specific situations. (84) The Statute permits a contracting State to deviate from the principle of equal treatment among sea-going vessels "in case of an emergency affecting the safety of the State or the vital interests of the country." (85) However, any such deviation must be "for as short a period as possible" because the prescribed obligations and rights "must be observed to the utmost possible extent." (86)

Thus, the Tribunal inferred that the limitation placed on port closures enumerated in Article 16 confers a general right of port entry to foreign ships. (87) Furthermore, the Tribunal conveyed the notion that a State's territorial sovereign control over maritime commerce is not limitless. (88) The Tribunal declared that a State can only exercise its sovereignty within the limits of customary international law, the treaties the State has concluded, and particular undertakings it has assumed. (89) Although Saudi Arabia was not a party to the 1923 Convention, the Tribunal believed that the Saudi Arabian government was restricted in its authority to deny foreign ships access to its ports under customary international law.

The Tribunal cites Guggenheim's Traite de Droit International Public to bolster its landmark proclamation. Guggenheim, in his 1953 publication, wrote that:
   Seaports are . .. integral parts of the territory of the State.
   They belong to its maritime ways. Nevertheless, customary
   international law, bilateral treaties, as well as the Statute on
   the Regulation of Ports of December 9, 1923 . . . limit
   considerably the territorial sovereignty of the State. Seaports are
   in principle open to the foreign commercial vessels and may be
   closed only when the vital interest of the State so require. (90)


However, modern scholars are quick to note that his unambiguous language does not fashion a customary right of port access free from State restrictions. (91) La Fayette and Lowe noted that Guggenheim's sources did not support the notion that States are legally obligated to open their ports. (92) Moreover, both authors further point out that Guggenheim himself later refuted any notion of a general right of ports access by foreign vessels. (93) Therefore, the Tribunal's decision of 1958 was based on deficient and scant sources, (94) and is criticized as being far-reaching, erroneously expansive, and altogether misguided. (95) In fact, the following two cases, decided by the International Court of Justice, demonstrate that the Tribunal's pronouncement does not in fact reflect a conclusive customary law.

VI. DECISIONS OF THE INTERNATIONAL COURT OF JUSTICE

There are two cases decided by the International Court of Justice ("ICJ") that are relevant to the issue of port access--the North Sea Continental Shelf Cases (96) and the Case Concerning Military and Paramilitary Activities in and against Nicaragua. (97) The former establishes the principle of when treaty law may become customary international law, thus implicitly nullifying the ARAMCO Tribunal's cursory language. (98) The latter case explicitly invalidates the ARAMCO Tribunal's dicta, which argued that a coastal State has the sovereign right to restrict access to its ports. (99)

The Restatement mentions neither the North Sea Continental Shelf nor the Military and Paramilitary Activities cases in the sections dealing with "Access to Ports;" however, it does recognize and cite these cases in other sections. (100) Again, the authors of the Restatement ignore the assumptions and conclusions that validate a States' sovereign right to control access to its ports. (101)

A. NORTH SEA CONTINENTAL SHELF CASES

In North Sea Continental Shelf, the ICJ had to decide whether Article 6(2) of the Convention on the Continental Shelf, (102) which codified the equidistance rule, (103) was binding on the Federal Republic of Germany. (104) Since Germany had not ratified the Convention on the Continental Shelf, and thus was not "contractually bound" in the traditional sense, the ICJ had to determine whether this specific treaty provision had become part of international customary law. (105) Accordingly, today the North Sea Continental Shelf is deemed a model case for analyzing how international conventions, or provisions within it, crystallize into customary law.

In doing so, the ICJ reflected on the drafters' intent in adopting Article 6, in particular whether the equidistance principle was to be adopted on an "experimental basis" or to be codified as an existing international customary rule. (106) The Court concluded the former, considering Article 6 in respect to Articles 1 through 3. (107) The ICJ noted that State parties can make reservations to Article 6, but cannot with Articles 1 through 3, which are widely held to reflect customary law at the time of the treaty's inception. (108)

The ICJ next examined whether Article 6 had "come into being since the Convention, partly because of its own impact, [or] partly on the basis of subsequent State practice." (109) The ICJ noted that such occurrences indicate "one of the recognized methods by which new rules of customary international law may be formed." (110) Contrary to traditional notions, the ICJ announced that international custom develops "without the passage of any considerable period of time." (111) Therefore, significant participation among State actors "might suffice [in and] of itself to establish a customary rule. (112)

However, the ICJ concluded that the equidistance principle did not developed into customary international law. The ICJ was disinclined to construe actions taken by a few States as representative of a general international sense of obligation to some customary norm. (113) Moreover, the ICJ was unwilling to bestow a rule of international law prior to the emergence of opino juris. (114) UA Thus, the ICJ rightfully concluded that the equidistance principle had not yet created a new customary rule of law binding States "which have never, and do not, become parties to the Convention." (115)

The ARAMCO Tribunal summarily found that Article 16 of the Treaty had crystallized into customary international law. (116) However, the Tribunal did not present any evidence, barring one academic source, to support this proposition. (117) Applying the North Sea Continental Shelf principles and analysis to the 1923 Ports Convention shows that this convention does not reflect existing customary law at the time of its inception nor subsequent to its entry. When the 1923 Port Convention was drafted, there were twenty-five States signatories to the Treaty. (118) Today, forty States have formally adopted it. (119) Although the Treaty includes some important maritime countries, like Great Britain, it does not include the United States, China, Russia, or Japan. In fact, no current State practice has emerged to signal that a right of port entry exists. (120) Indeed, maritime States, in particular the United States to be discussed infra, have declared and defended their right to deny port access to foreign ships.

Looking also at the preamble and text of the 1923 Port Convention, the Treaty does not reflect an existing international custom as to port access. (121) The preamble states that the intention of the Treaty is to ensure "in the fullest measure possible . .. [the] freedom of communications ... by guaranteeing in the maritime ports under [the] sovereignty or authority [of the Parties] and for [the] purposes of the international trade equality of treatment between the ships of all the contracting states, their cargoes and passengers." (122) More importantly, Articles 2 and 8 of the Treaty do not confer an absolute right of port entry to foreign-flagged ships, but limits their right based on a condition of reciprocity. (123)

Arguably, the Treaty only intended to regulate the treatment of sea-going vessels while in a foreign port. The drafters were more interested in securing the equal treatment of foreign merchant vessels in a maritime port rather than creating a right of port entry. Thus, it is unlikely that the 1923 Ports Convention created the "potentially norm-creating character" necessary to create or transform a treaty provision into a customary rule of law.

B. CASE CONCERNING MILITARY AND PARAMILITARY ACTIVITIES IN AND AGAINST NICARAGUA

By inference to the conditions and analysis in North Sea Continental Shelf it appears that that the ARAMCO Tribunal's conclusion regarding the 1923 Port Convention as a reflection of a customary right or port entry was mistaken. However, the ICJ directly contradicts and invalidates the ARAMCO Tribunal's assertion regarding access to maritime ports in Military and Paramilitary Activities.

The ICJ directly addressed the issue of port access in the Military and Paramilitary Activities. (125) The principle of port access was evaluated on two separate factual circumstances. In the first instance, United States agents planted maritime mines in Nicaraguan ports, which denied access to foreign vessels.126 In the second, the United States applied an economic embargo on Nicaragua, preventing Nicaraguan flagged vessels from entering United States ports. (127)

The majority of judges concluded that the United States had infringed on Nicaragua's sovereignty, thus violating international law. (128) By mining the ports of Nicaragua, the justices confirmed that the United States had contravened Nicaragua's ability to control its ports and entry to them by foreign ships. (129)

The ICJ judgment concluded that only a sovereign country has the right to determine whether to allow access to its ports by foreign-flagged ships. (130) The ICJ insisted that the basic legal concept of sovereignty, as expressed in Article 2(1) of the United Nations Charter, (131) extends to internal waters of a State. The ICJ declared that "[t]he basic legal concept of State sovereignty in customary international law . . . extends to the internal waters and territorial sea of every State." (132)

The ICJ extended a State's sovereignty over their internal waters, including its ports. Since internal waters are assimilated to a State's territory and ports are included in the internal waters, a foreign ship does not have an inherent right under customary international law to access a port of another country without permission. Therefore, the ICJ does not recognize a customary right of maritime port entry for foreign vessels. (133)

As to the second point, the ICJ concluded that the United States, through a trade embargo, could not prevent access by Nicaraguan flagged ships to its own ports. (134) However, the ICJ's decision was premised on the fact that the United States entered into a bilateral treaty with Nicaragua to permit access of her vessels. (135) The justices remarked that the bilateral treaty mandated that both Nicaragua and the United States grant open access to their ports for navigation and trade. (136) While the ICJ accepted the notion that the United States could abrogate its treaty obligation, it could not do so before providing a one year's notice of termination as specified in the treaty. (137) The ICJ stated that "[t]he freedom of Nicaraguan vessels, under [the bilateral treaty], 'to come with their cargoes to all ports, places and waters' of the United States could not... be interfered with during that period of notice, let alone terminated abruptly by the declaration of an embargo." (138)

Thus, the Court concluded that the United States restriction on port entry of Nicaraguan vessels, via a trade embargo, violated a specific provision of the bilateral treaty. (139) The logical deduction is that absent the bilateral agreement between the two countries, the United States would have been free, as a sovereign State, to deny access to Nicaraguan flagged vessels to United States maritime ports. (140)

VII. RESOLUTIONS AND REPORTS BY INTERNATIONAL ORGANIZATIONS

The Restatement cites two international organizations in its discussion of maritime ports. The first is the Institute of International Law and the second is the United Nations Conference on Trade and Development. As with its other sources, the authors of the Restatement either misinterpret the reports produced by these organizations or altogether circumvent relevant application of these sources as they pertain to the right of port entry.

A. INSTITUTE OF INTERNATIONAL LAW

The Restatement cites the work of the Institute of International Law ("Institute") as conclusive proof of a customary right to port entry. (141) The Institute, meeting in 1898, 1928, and 1957, "affirmed the right of access to ports, subject to various conditions." (142) However, the literature on the Institute's conclusions, as noted infra, is far from certain.

At its first session at The Hague in 1898, the Institute adopted a resolution stating, as a tenet of international law, that the access to maritime ports "is presumed to be free to foreign ships." (143) However, the body allowed exceptions to this general rule "when the safety of the State or the interest of the public health justifies the order," or "as an act of just reprisal." (144) Moreover, the Institute accepted the legal reality that the State is the "sole judge" in deciding when it wishes to declare its ports closed. (145)

Thus, in 1898, the Institute acknowledged that there is only a presumption that ports are open. (146) However, it did not recognize a legal obligation to keep maritime ports open. (147) In addition, the Institute fully recognized that port entry is conditioned on the principle of reciprocity and limited to express exceptions determined by the State itself. (148)

At Stockholm in 1928, the Institute raised its "presumption" of access to ports to a "general rule." (149) In other words, the Institute resolution decreed that access to ports "is open to foreign vessels." (150)

Although the Institute reconfirmed the notion of the right of reprisals, it limited the State's ability to deny access in other circumstances. (151) It concluded that a State may temporally suspend access for as short a period as possible in cases of "serious events" on issues involving the safety or public heath of the State. (152) In short, the Institute, in 1928, took the position that ports are open by rule to foreign-flagged vessels and may only be suspended for a limited time in cases involving serious emergencies or reprisals. However, more contemporaneous writers view the work of the 1928 Institute as "progressive solutions" and "ahead of present day practice." (153) Thus, the conclusions drawn in 1928 were not considered to reflect customary law of the time, but rather an aspiration to be achieved by the world community of States. (154)

In 1957, in Amsterdam, the Institute revisited the issue of the right of port entry; (155) rather then settling the issue, however, it further complicated the matter. In the preamble to the 1957 Resolution, the Institute expressed that "it is consistent with general practice of States to permit free access to ports and harbors by such vessels." (156) However, in Article II, the Institute declared "[s]ubject to the rights of passage sanctioned either by usage or by treaty, a coastal State may deny access to its internal waters to foreign ships." (157) The wording and textual position of these expressions has created much confusion.

Not surprisingly, the Restatement takes the view that the Institute in 1957 affirmed the notion of a general right of port access by distinguishing ports from internal waters. (158) In other words, the Restatement interprets the textual organization of the 1957 Resolution to imply that while a foreign ship has a right to enter a port, it does not have an expanded right to transit beyond a port to the internal waters of a State (e.g. rivers, bays, lakes, etc.). (159)

Other authors take a contrary view, asserting that the 1957 Institute confirms no right of port entry and a State has the authority and right to deny port access. (160) These authors believe that the Institute is expressing what is "desirable" or "progressive" in the preamble, namely that maritime States should maintain open ports, facilitate international maritime commerce, and refrain from denying access to foreign ships. (161) At the same time, these scholars assert that the text of the resolution reflects what is generally accepted as international law discerned from actual State practice; specifically, that a State has a right, absent a treaty obligation, to refuse port entry to foreign ships. (162)

One scholarly work takes the view that the 1957 session left the law concerning the right to port entry unclear and ambiguous. (163) By "declaring" as a "general practice" that States "permit free access to ports," while at the same time "desiring" States abstain from "denying access to their internal waters," even though they have a right to do so, only leads to an unequivocal conclusion. (164) Thus, the Institute's findings are at best inconclusive, and at worst confusing. However, the general consensus is that the Institute's findings do not affirm a right of port access by foreign vessels as stated in the Restatement.

B. UNITED NATIONS CONFERENCE ON TRADE AND DEVELOPMENT

In 1975, the Secretariat of the United Nations Conference on Trade and Development presented a report involving access and treatment of foreign vessels in ports under international law. (165) The study bases its findings on the examination of the 1923 Ports Convention, other multilateral conventions, nearly 100 bilateral treaties, and feedback from State delegates to a questionnaire. (166)

The report concluded that the 1923 Ports Convention does not explicitly provide a customary right of port entry to sea-going vessels. (167) The Secretariat noted that a small number of States had ratified or acceded to the convention. (168) In addition, the report found that the major maritime powers and many newly recognized countries had not ratified the treaty. (169) Specifically, the report did not affirm:
   (i) that a right of access exists for all merchant ships that come
   to a port with a lawful purpose, regardless of their nationality or
   ownership and prior or subsequent port of call; (ii) the type of
   ports for which access is granted; (iii) the type of vessels for
   which access is granted; (iv) the circumstances in which access can
   be denied; and (v) the procedures governing access. (170)


The Secretariat's report acknowledged that open ports are beneficial to a State's trade and commerce interest. (171) However, it maintained no legal obligation under customary law for States to keep their ports open. (172) The report further concluded that "the very existence of the Convention and bilateral treaty clauses on the subject showed that countries still deemed it necessary to stipulate, via treaty, that access was granted to their ports." (173)

Again, the Restatement's use of this source is puzzling. The authors of the Restatement cite the UNCTAD Secretariat Reports; however, the Reports are only referenced in relation to the legal implications arising from the presence of merchant ships within foreign ports. (174) Inexplicably, the Restatement avoids any reference or mention to the Secretariat's findings with respect to access to these ports.

While UNCTAD was addressing the issue of port State access, the International Maritime Organization ("IMO") began reviewing the issue of international port regime. In 1974, the IMO placed the issue on its agenda after the U.S.S.R. submitted a draft of the "Convention on the Regime of Vessels in Foreign Ports" for consideration and possible adoption. (175) Article 3 of the draft asserted that "the Coastal State shall have the exclusive right to declare the ports under its sovereignty or jurisdiction open to the entry of foreign vessels and to regulate such entry." (176) As a non-signatory of the 1923 Ports Convention, the Soviets wanted to make clear that they had the right to deny access to its ports under the principle of State sovereignty. (177)

After some preliminary work by the international body, the Legal Committee, during its thirty-first session in 1976, began a comprehensive review of the issue. (179) During this session, the Legal Committee considered the draft convention submitted by the U.S.S.R and the work of UNCTAD, (180) as well as reviewing the comments and views from government delegates submitted to the IMO Secretariat. (181) The views of the member States spanned the entire spectrum, from full support of a convention on ports regimes, (182) to the need for further study on the issue, (183) to outright opposition to the draft, (184) to the view that there was no reason for a new treaty on the subject. (185) The consensus of the latter view believed that the issue was adequately addressed by the 1923 Ports Convention, bilateral agreements, and customary international law. (186) Moreover, although the IMO tabled the issue of a new port State regime convention, a general consensus was reached that the 1923 Ports Convention, and its provision of port State access, had not crystallized to the level of customary international law. (187) In essence, member States tacitly approved the right of a coastal State to deny access to its ports.

The Restatement simply omits the work of the IMO on this subject. Although the authors of the Restatement cite the importance of the IMO in its introductory note and subsequent sections, (188) there is no mention of the international organization in its section dealing with port access.

VIII. INTERNATIONAL TREATIES RELATING TO TRADE, NAVIGATION, MARITIME SAFETY

The Restatement and other authors assert the belief that numerous provisions in bilateral and multilateral treaties confirm the existence of a customary rule of law, thus conferring a right of access to foreign ports. (189) The numerous bilateral treaties of "Friendship, Commerce, and Navigation" ("FCN treaties") are often cited. These treaties are historically considered to be some of the most recognizable and common international instruments known in international relations customs. (190) In fact, these treaties now number in the hundreds. (191) The purpose of FCN treaties is to "describe a basic accord fixing the ground-rules governing day-to-day intercourse between two countries, designate the medium par excellence through which nations have sought in a general settlement to secure reciprocal respect for their normal interests abroad, according to agreed rules of law." (192)

In the scope of international shipping, FCN treaties have the practical effect of providing the right of port entry to foreign ships and precluding foreign-flagged discrimination while in such ports. (193) One of many examples is the FCN treaty between the United States and Greece, providing that:
   Vessels of either Party shall have liberty, on equal terms with
   vessels of the other Party and on equal terms with vessels of any
   third country, to come with their cargoes to all ports, places and
   waters of such other Party open to foreign commerce and navigation.
   Such vessels and cargoes shall in all respects be accorded national
   treatment and most-favored nation treatment within the ports,
   places and waters of such other Party. (194)


A second source cited is the General Agreement of Tariff and Trade ("GATT"), (195) administered by the World Trade Organization. Article V, entitled "Freedom of Transit," provides:
   There shall be freedom of transit through the territory of each
   contracting party, via the routes most convenient for international
   transit, for traffic in transit to or from the territory of other
   contracting parties. No distinction shall be made which is based on
   the flag of vessels, the place of origin, departure, entry, exit or
   destination, or on any circumstances relating to the ownership of
   goods, of vessels or of other means of transport. (196)


This provision has been noted as placing a legal obligation on littoral States to not unduly interfere or discriminate with the shipment of goods by a foreign flag vessel to their ports. (197) Thus, the right of States to close their maritime ports, under this provision, is limited by the obligation to provide free transit to foreign shipping. (198)

However, as noted earlier, the Restatement attempts to overstate or embellish the importance of its sources. These international treaties do not recognize an absolute right of port entry. Even with the "port access" provisions noted in FCN treaties and GATT, States are not restricted from asserting their sovereign control over their ports. (199) Rather, the FCN treaties provide for State authorities to deny entry to foreign vessels "necessary to fulfill the obligations of a Party for the maintenance or restoration of international peace and security, or necessary to protect its essential security interests." (200) GATT provides a similar security provision, authorizing a littoral State to take action when "necessary for the protection of its essential security interest, taken in time of war [or] in pursuance of its obligation under the United Nations Charter for the maintenance of international peace and security." (201) Both the FCN treaties (202) and GATT (203) provide additional exceptions for trafficking of nuclear materials and arms. GATT also provides exceptions to promote conservation. (204)

Nevertheless, these bilateral and multilateral conventions (including the 1923 Ports Convention discussed supra) confer some legal right of port entry to foreign vessels. (205) While no right of port access under customary international law exists, most States enjoy a right to enter flagged merchant vessels into foreign ports under treaty law. (206)

Thus, the issue of port access and customary international law comes full circle. Although there is not a customary right of port access, a plethora of treaties have instilled the right as a matter of fact. This raises the question as to whether these bilateral and multilateral agreements have served to confer a customary right to port access. Admittedly, a series of treaty provisions which a substantial number of States have acceded to may be assumed as extremely persuasive evidence of customary international law. (207) Not surprisingly, the Restatement (and a minority of other writers) takes the view that the multiple treaties with parallel provisions clearly establish a customary right to port entry. (208) However, this fact alone is not sufficient to emphatically declare the existence of a customary international law. (209) Rather, most modern commentaries agree that a customary right of port entry has not been crystallized from these conventions. (210)

More broadly, most academics do not support the notion that it is reasonable to assume, from similar provisions in several international conventions, a created rule of customary law. (211) As one commentary stated, "the great number of similar treaty provisions proves that no such rule of customary law exists . .. [i]f it did exist, there would be no need for the rule to be repeatedly confirmed by treaty provisions." (212) Another author affirms that "the very existence of these agreements granting a free right of access confirms that states believe that no such right exists in customary international law." (213)

This conclusion is further deduced by the existence of other maritime treaties and conventions relating to the issues of safety and pollution as it affects port entry. (214) Coastal States have expressed or implied authority to deny port entrance to a foreign ship if it does not comply with relevant provisions of the 1974 Safety of Life at Sea Convention ("SOLAS") (215) or the 1973 Convention for the Prevention of Pollution from ships (216) and its 1978 Protocol ("MARPOL"). (217) Likewise, other conventions have expressed the State's authority to deny access to its ports. The 1962 Convention on the Liability of Operators of Nuclear-Powered Ships provides that a Contracting State has the right, "under international law[,] to deny access to its waters and harbours to nuclear ships licensed by another Contracting State, even when it has formally complied with all the provisions" of the Convention. (218) Moreover, the South Pacific Nuclear Free Zone Treaty states that, "each Party in the exercise of its sovereign rights remains free to decide for itself whether to allow visits of foreign ships ... to its ports." (219) Thus, it is difficult to contend that there is a customary right of port entry based on the existence of multiple provisions within treaty law affording such a right, in the face of numerous maritime conventions acknowledging the right of a State to deny port entrance to foreign-flagged vessels.

IX. UNITED NATIONS CONVENTION OF THE LAW OF THE SEA OF 1982

The Restatement states that the LOS Convention "does not mention a right of access of ships to foreign ports." (220) While it may be true that there is no direct reference to the right of port entry, the LOS Convention reveals some implied rules on the right of port access to foreign ports. (221)

Article 2(1) of the LOS Convention states that, "[t]he sovereignty of a coastal State extends, beyond its land territory and internal waters ... to an adjacent belt of sea, described as the territorial sea." (222) Thus, this article confers the same "sovereignty" rights over "internal waters" as it does to "territorial land." Article 2(3) further notes that only the "sovereignty over the territorial sea" is limited by provisions in LOS Convention and other rules of international law. (223) It makes no explicit limitations in matters concerning the inland waters.

Article 8(1) delineates inland waters from territorial sea by recognizing that "waters on the landward side of the baseline of the territorial sea form part of the internal waters of the State." (224) Under Article 11, ports are assumed to be part of inland waters. (225) Under Article 11, entitled "Ports" in the English version of the text, the term "port" is not explicitly defined. (226) The primary purpose for Article 11 is to differentiate permanent harbor works from offshore installations and artificial islands in the construction of baselines. (227) Nevertheless, the Article states that for demarcating purposes, "the outermost permanent harbour works which form an integral part of the harbour system are regarded as forming part of the coast." (228) It follows from this provision that ports are logically included within the internal waters of the littoral State. (229)

Under Article 8(2), the drafters of the LOS Convention acknowledged a right of innocent passage in internal waters in limited circumstances where "the establishment of a straight baseline . . . has the effect of enclosing an internal waters area which had not previously been considered as such." (230) This express authority of innocent passage under a limited exception in internal waters logically implies that no such right of innocent passage exists in other parts of a State's internal waters, including its ports. (231)

Based on Articles 2, 8, and 11, the LOS Convention's primary purpose is to delineate internal waters from the territorial sea. However, these provisions when read together, imply that inland waters, including ports, are fully assimilated to a State's territory. (232) As such, the LOS Convention implies, "just as the State is in principle free to deal with land territory, so [too] should [it] be free to deal with its internal waters as it chooses and for this reason those waters have not been made the subject of detailed] regulation in any of the Conventions on the Law of the Sea." (233)

One author, O'Connell, supports the notion that a right of port entry may exist under Article 18 of the LOS Convention. (234) Article 18 defines "passage" (235) as the "continuous and expeditious" navigation through the territorial sea for the purpose of either "traversing that sea without entering internal waters or calling at a roadstead or port facility outside internal waters" or "proceeding to or from internal waters or a call at such roadstead or port facility." (236)

According to O'Connell, "the inclusion of passage to and from ports in internal waters is intended to reflect the supposition that there are rules of international law reflecting freedom of access to ports, and that the coastal state would not be free to deny ships transit rights for the purpose of access." (237) In other words, O'Connell asserts that this provision suggests there are rules in international law regarding the right of port entry by foreign-flagged ships. (238) However, this position is not reflected in other scholarly writing. Conversely, Lowe contends that "[t]he right of innocent passage through the territorial sea has been extended to ships making for internal waters; however, innocent passage does not necessary entail a right to enter those waters." (239)

This supposition, that there is no right of port access, is also confirmed in the legislative history of Article 255 of the LOS Convention. Article 255 addresses the subject of marine scientific research vessels, which provides:
   States shall endeavor to adopt reasonable rules, regulations and
   procedures to promote and facilitate marine scientific research
   conducted in accordance with this convention beyond their
   territorial sea and, as appropriate, to facilitate, subject to the
   provisions of their laws and regulations ... access to their
   harbours ... for marine scientific research vessels ... (240)


This provision was adopted in lieu of an earlier submission which stated:
   Coastal States in the interest of international co-operation and in
   order to facilitate the conduct of marine scientific research shall
   take measures, including legislative ones, to simplify the
   procedures for entering their ports and internal waters by ships
   conducting scientific research in accordance with this Convention.
   (241)


The implication behind the latter provision (and similar revisions) is that there was a right of access to ports and internal waters for foreign vessels. (242) The dropping of the text obligating States to simplify its procedures for allowing research vessels to enter its ports occurred after strong opposition to such a presupposition. (243) Opposition stemmed largely from the belief that such a proposal infringed on State sovereignty. (244) The inference behind the final codified version of Article 255 is that States were unwilling to concede that there was a right of port access. (245) Rather, the drafters of Article 255 favored the use of bilateral, regional, or multilateral treaties in order to facilitate entry, rather than to provide a general right thereby obligating States to provide port access. (246)

X. CONDITIONS OF PORT ENTRY

In contrast to the differing opinions on the right of port access, there appears to be a general consensus that a State may prescribe and enforce conditions for entry into its ports. This view is even supported by the Restatement, which states that a State "may condition entry of a foreign ship into its internal waters or ports on compliance with its laws and regulations." (247) Moreover, it provides that "[a] coastal state can condition the entry of foreign ships into its ports on compliance with specified laws and regulations." (248) This view is shared almost unanimously, even by those who support the existence of an absolute right of port entry. (249) In addition, the ICJ endorsed this stance by stating that "[i]t is also by virtue of its sovereignty that the coastal State may regulate access to its ports." (250)

The principle that a State can prescribe rules to a foreign ship as a condition of port entry exists in several provisions on the LOS Convention. Article 25 expressly confers the right of a State to regulate access to its internal waters and ports while a ship is in its territorial seas. (251) Article 25(2) specifies that:
   In the case of ships proceeding to internal waters or a call at a
   port facility outside internal waters, the coastal state also 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. (252)


There can be little doubt that this provision entitles a State to make entry subject to specified conditions. (253) The LOS Convention further recognizes the right to condition port entry under Article 211. (254) Article 211(3) provides:
   States which establish particular requirements for the prevention,
   reduction, and control of pollution of the marine environment as a
   condition for the entry of foreign vessels into their ports or
   internal waters . . . shall give due publicity to such requirements
   and shall communicate them to the competent international
   organization. (255)


Thus, in addition to the general text of Article 25, Article 211 grants express and unambiguous authority to restrict port access in order to prevent or manage marine pollution.

Other multilateral treaties also place special conditions on maritime vessels that enter a port. For example, MARPOL provides that "if a Party denies a foreign ship entry to the port ... or takes any action against such ship for the reason that the ship does not comply with the provisions of the present Convention ..." (256) The 1954 Convention for the Prevention of Pollution of the Sea by Oil, also specifies that "if any Contracting Government has clear ground for believing ... that the tanker does not comply with Annex C, it may deny access to [its] ports ..." (257) Further, SOLAS grants specific authority to littoral States to restrict port entry if sea-going vessels do not comply with the relevant vessel safety provisions of the Convention. (258)

Although it is well settled that a State may prescribe regulations conditioning port access supported by an international treaty provision, the type, extent, and manner of unilateral State requirements is unclear. Some authors support the position that a State may arbitrarily deny access to its ports; Hydeman and Berman contend that "absent agreement, each State has absolute control over access to internal waters, even to the point of arbitrary exclusions." (259) McDougal and Burke echo the notion that a State has an absolute authority to deny foreign vessels into its ports, "even [if it is] arbitrary exclusion." (260) Admittedly, Article 25(2) does not imply any limitations on the conditions which a State may require. (261) However, other commentaries take the view that there are limits that a State may impose under international law.

Scholars advocating a limitation of a State's ability to set conditions of port entry base their opinion on the principle of "abuse of rights." For example, Churchill and Lowe argue that "[i]t is, however, possible that closures or conditions of access which are patently unreasonable or discriminatory might be held to amount to an abus de droit, for which the coastal State might be internationally responsible even if there were no right of entry to the port." (262)

The LOS Convention endorses the international legal principle of abuse of rights. Article 300, entitled "Good Faith and Abuse of Rights," proclaims that "States Parties shall fulfill in good faith the obligations assumed under this Convention and shall exercise the rights, jurisdiction and freedoms recognized in this Convention in a manner which would not constitute an abuse of right." (263)

Although not defined in the LOS Convention, the doctrine of abuse of rights "has long been accepted in theory as a principle of international law," (264) which presupposes limits to the sovereign rights of the State. (265) There are generally four grounds recognized as an abuse of one's international rights: (1) acting in bad faith; (2) acting for an improper purpose; (3) taking into account irrelevant factors while discounting relevant factors; and (4) acting unreasonable. (266)

Thus, while a State does have an extensive right to regulate access to its maritime ports, when exercising those rights, the State is not without limits. (267) In short, a State may not impose conditions of port entry that (1) improperly interfere with another State's right under international maritime treaty or law; (2) is absent of a nexus with a proper purpose (such as maritime safety, marine environment or port security); (3) wrongfully discriminates towards certain flagged vessels; or (4) is blatantly arbitrary and unjustifiable.

XI. UNITED STATES LAW AND PRACTICE

With the principles of port access and conditions of port entry under international law in mind, we turn next to examine the United States port entry regime. Similar to international law, the United States endorsed a liberal port access regime early in its history. However, over the years, the United States has implemented a web of port State regulations.

A. EARLY DIPLOMATIC HISTORY

Early United States diplomatic statements insinuated a right of port entry. In 1816, Secretary of State James Monroe wished to allay the concerns of the Spanish government with regards to access to United States ports. In a correspondence to the Spanish foreign minister, Secretary Monroe asserted:
   [i]t is consistent with the just principles, as it is with the
   interests, of the United States to receive the vessels of all
   countries into their ports, to whatever party belonging, and under
   whatever flag sailing, pirates excepted, requiring of them only the
   payment of the duties, and obedience of the laws while under their
   jurisdiction, without adverting to the question they had committed
   any violation of the allegiance or laws obligatory on them in the
   countries to which they belonged, either in assuming such flag, or
   in any other respect. (268)


Over three decades later, in 1852, the United States reiterated this notion of liberal port access to the Spanish government. However, this time America protested the decision of Spanish authorities to deny the entrance of a United States flagged ship into Cuba because one of its officers had published a book in the United States that was critical of the Spanish government. In protesting the decision, acting Secretary of State Charles M. Conrad wrote:
   [y]ou will state that this government does not question the right
   of every nation to prescribe the conditions on which the vessels of
   other nations may be admitted into her ports. That, nevertheless,
   those conditions ought not to conflict with the received usages
   which regulate the commercial intercourse between civilized
   nations. That those usages are well known and long established, and
   no nation can disregard them without giving just cause of complaint
   to all other nations whose interest would be affected by their
   violation.

   That the circumstances of an officer of a vessel having published,
   in his own country, matters offensive to a foreign government does
   not, according to those usages, furnish a sufficient cause for
   excluding such vessel from the ports of the latter.... (269)


In essence, the United States position up until at least the mid-19th century was that absent an accepted international norm, a State may not deny port entry to foreign ships. (270) However, this position was apparently reversed during the United States Prohibition Era, when the United States began applying United States liquor laws to foreign ships while in its ports. (271)

B. UNITED STATES CASE LAW

The notion of open and accessible ports was first incorporated into American law by Chief Justice John Marshall's 1812 opinion in The Schooner Exchange. (272) While first acknowledging that "the jurisdiction of the nation within its own territory is necessarily exclusive and absolute," (273) Justice Marshal went on to recognize that there are limits to a nation's jurisdictional sovereignty based upon international comity. (274)

The Court narrowly held in The Schooner Exchange that a foreign warship entering a United States port during peacetime is immune from United States court jurisdiction. (275) Thus, the Court noted that over the years, States have agreed to curtail their absolute sovereign authority. (276) Marshall further noted that States have restrained their sovereign control over port access by expressing that "without treaty, the ports of a nation are open to private and public ships of a friendly power (emphasis added)." (277) However, he also noted that foreign merchant vessels "owe temporary and local allegiance" and are "amenable to the jurisdiction of the country" once in their port. (278) Thus, The Schooner Exchange progressed from an absolute right to a qualified right of foreign ships to enter United States ports.

Nearly a century later, the Supreme Court discussed the right of foreign merchant vessels to enter United States ports in Patterson v. Bank Eudora. (279) The Court noted "the implied consent to permit [foreign vessels] to enter our harbors may be withdrawn, and if this implied consent may be wholly withdrawn it may be extended upon such terms and conditions as the government sees fit to impose." (280) Thus, Patterson upheld a port-State's authority to dictate port entry conditions on foreign merchant ships. (281)

This position was affirmed in Strathearn Steamship Company v. Dillon, where the Supreme Court held that "it was for this Government to determine upon what terms and conditions vessels of other countries might be permitted to enter our harbours, to impose conditions upon the shipment of sailors in our own ports, and make them applicable to foreign as well as domestic vessels." (282) Once again in 1953, the Supreme Court in Lauritzen v. Larsen reaffirmed the right of the United States to "condition access to our ports by foreign owned vessels upon submission to any liabilities it may consider good American policy to exact." (283)

The right of the United States to deny entry of foreign merchant vessels was also addressed in two circuit court cases. In Khedivial Line v. Seafarers' International Union, a United Arab owned merchant ship was denied access to the port of New York. (284) The plaintiff sought injunctive relief and damages based on, among other reasons, an international right to port access. (285) The Second Circuit held that an unrestricted access to United States ports was not a right based on international law. (286) The court articulated that:
   [p]laintiff concedes there is no treaty between the United States
   and the United Arab Republic granting the latter's vessels free
   access to United States ports. Plaintiff has presented no
   precedents or arguments to show either that the law of nations
   accords an unrestricted right of access to harbors by vessels of
   all nations or that, if it does, this is a right of the foreign
   national rather than solely of the nation. In any event the law of
   nations would not require more than comity to the ships of a
   foreign nation, and here the very cause of the picketing is a
   harassment of American shinrjing and seamen by the United Arab
   Republic that is not denied. (287)


In sum, the court noted that, absent a treaty provision, there is no customary right to port entry. (288)

In Canadian Transport Company v. United States, the D.C. Circuit Court considered whether the Coast Guard had overstepped its authority when it denied access to a Canadian owned Singapore-flagged vessel into the port of Norfolk. (289) The basis for the Coast Guard's denial was predicated on the fact that the masters and officers of the vessels were Polish nationals (i.e. from a communists bloc State) and thus posed a risk to national security; therefore the denial was made pursuant to classified regulations. (290)

The court found that the unpublished regulations were valid under United States law, but remanded the case on the issue of whether the Coast Guard's decision was arbitrary. (291) In essence, the court acknowledged that the United States has the sovereign right to deny access to foreign vessels, but preserved the principle of "equality of treatment" of foreign vessels; in that any denial of port entry must not be unjustified or random.

C. APPLICATION OF THE UNITED STATES' PORT ENTRY REGIME

Today, the United States interprets the LOS Convention to reaffirm the plenary authority to set conditions of port entry on all foreign merchant vessels. The current position of the United States is "[s]ubject to ancient customs regarding the entry of ships in danger or distress (force majeure) and the exception noted below [LOSC Article 8(2)], the Convention does not limit the right of the coastal State to restrict entry into or transit through its internal waters, port entry, imports or immigration." (292) Furthermore, the United States asserts that "a port State has the right to refuse to permit foreign ships from entering, or remaining within its internal waters." (293)

1. UNITED STATES COAST GUARD

With this prevailing view on port State authority, the United States has promulgated an extensive array of maritime laws and regulations regulating foreign vessel access to American ports. Often these laws and regulations are implemented and enforced by the United States Coast Guard.

The United States Coast Guard is the lead federal agency responsible for regulating United States port operations. (294) Congress has promulgated several laws in Titles 33, 46 and 50 of the United States Code that comprehensively provide for the safety and security of United States ports and internal waterways by regulating commercial shipping traffic. The most significant laws in regards to foreign merchant vessel access will be discussed.

2. THE PORTS AND WATERWAYS SAFETY ACT

The Coast Guard has statutory responsibility under the Ports and Waterways Safety Act of 1972 ("PWSA") to regulate the access of foreign vessels to United States ports. (295) Among other things, the PWSA promotes the protection of ports, vessels, waterfront structures, and bridges over navigable waters from damage, destruction or environmental harm. (296) Section 1223 of the PWSA provides the Coast Guard with the authority to establish, operate, and maintain vessel traffic services in ports and waterways which are subject to high shipping traffic. (297) This section also authorizes the Coast Guard to designate which vessels must comply with the vessel traffic service, as well as to require such vessels carry the necessary navigational, communication, and electronic equipment for participation in the VTS system. (298) Under Coast Guard regulations, the Captain of the Port ("COTP") (299) may regulate the specific time of entry or departure, establish vessels size and draft limitations, and restrict vessel operations, anchorage and movement. (300)

The PWSA authorizes the COTP to establish maritime "safety zones" to prevent damage or destruction by controlling access to a certain fixed geographical sector or an area surrounding a transiting vessel. (301) Implemented under Title 33 of the Code of Federal Regulation, a safety zone is defined as "a water area, shore area, or water and shore area to which, for safety or environmental purposes, access is limited to authorized persons, vehicles, or vessels." (302) Once promulgated, no vessel may enter a safety zone unless authorized by the COTP. (303)

Under Section 1226 of the PWSA, the COTP may establish an anti-terrorism "security zone," defined as "an area of land, water, or land and water ... for such time as is necessary to prevent damage or injury to any vessel or waterfront facility, to safeguard ports, harbors, territories, or waters of the United States ..." (304) The purpose of the security zone is to prevent terrorist acts in ports and waterfront areas by controlling the port access of all vessels.

In addition to the ability to promulgate and enforce safety and security zones, which apply to all vessels, the Coast Guard has delegated the authority to the COTP pursuant to the PWSA to issue orders to a specific vessel. (305) These COTP orders, implemented in 33 C.F.R. [section] 160, may include directives to restrict or stop vessel operations, require specific vessel action to be taken, detain the vessels in port, or deny a vessel port entry. (306) Unlike the safety and security zone, the COTP may not issue an order to all vessels or a class of vessels. Rather, the COTP may only issue vessel-specific orders if one of three conditions are met: (1) the COTP must have reasonable cause to believe that a particular vessel is not in compliance with a federal law, federal regulation, or international treaty; (2) the COTP determines that the vessel does not satisfy the conditions for vessel operations or the transfer of its cargo; or (3) the COTP feels that the particular order is justified due to a temporary situation, such as weather, sea conditions, port traffic congestion, a hazardous situation, or a vessel condition. (307)

The PWSA also provides specific rules on the conditions of port entrance. Pursuant to Section 1228 of the PWSA, the Coast Guard may deny port entry to a particular vessel if the vessel is unsafe, it creates a threat to the marine environment, it fails to comply with regulations regarding safe vessel operations, it illegally discharges oil or other hazardous material, it does not comply with VTS procedures, it is not properly manned, or it does not have a licensed deck watch officer fluent in English. (308)

3. THE ESPIONAGE AND MAGNUSON ACT

Section 191 of Title 50 of the United States Code gives the Coast Guard additional authority to regulate port access of foreign vessels. Section 191 encompasses two lengthy (and unnumbered) paragraphs enacted at different points in United States history. The first paragraph is referred to as the Espionage Act. (309) The second paragraph is known as the Magnuson Act. (310) Both of these provisions provide the Coast Guard with greater authority to control international shipping during periods where the national security of the United States is endangered.

The Espionage Act, enacted in 1917 during World War I, (311) authorizes the President to issue rules and regulations "governing the anchorage and movement of any vessel foreign or domestic, in the territorial waters of the United States." (312) Moreover, it authorizes the inspection of vessels, the placing of guards on vessels, and, if necessary, taking full possession and control of vessels, including the right to remove the ship's officers and crew. (313) However, this authority is only activated upon a Presidential Proclamation or Executive Order declaring that "a national emergency exists by reason of actual or threatened war, insurrection, or invasion, or disturbance or threatened disturbance of the international relations of the

United States," or when the United States Attorney General concludes that "an actual or anticipated mass migration of aliens" requires a "immediate Federal Response." (314) Once initiated, the authority of the Espionage Act is quite expansive and extensive, allowing for the promulgation of broad and sweeping regulations to control the movement of vessels entering United States ports. (315)

The Magnuson Act, enacted in 1950 during the nascent years of the Cold War, (316) authorizes broad authority to the Executive branch upon a finding by the President that "the security of the United States is endangered by reason of actual or threatened war, or invasion, or insurrection, or subversive activity, or of disturbances or threatened disturbances of the international relations of the United States." (317) Similar to the Espionage Act, the Magnuson Act authorizes the President to promulgate rules and regulations to control the "anchorage and movement" of ships; (318) however, the Magnuson text only targets "foreign-flag vessels in the territorial waters of the United States," thereby specifically excluding United States flag vessels from its application. (319) Conversely, the Magnuson Act is more expansive than the Espionage Act, allowing the President to issue regulations "to safeguard against destruction, loss, or injury from sabotage or other subversive acts, accidents, or other causes of similar nature, vessels, harbors, ports, and waterfront facilities in the United States and all territory and water, continental or insular, subject to the jurisdiction of the United States." (320)

Shortly after the codification of the Magnuson Act, President Truman issued Executive Order 10,173, stating that "the security of the United States is endangered by reason of subversive activity." (321) Based on this Executive Order finding, the President ordered the promulgation of regulations to safeguard "vessels, harbors, ports, and waterfront territory" from sabotage or other subversive acts. (322) Since 1950, presidential administrations have modified Executive Order 10,173; in 2002, President George Bush signed an amendment to the Executive Order to reflect the modern transnational war on terrorism. (323)

Implemented regulations under the Magnuson Act are codified in 33 C.F.R. Part 6. Like the PWSA, the regulations in Part 6 provide the COTP with broad authority that includes both safety and security zones. (324) In addition, Part 6 provides the COTP with wide latitude to inspect and search, at any time, any vessel in United States jurisdictional waters; and if required, to take possession or control of any vessels if necessary to "secure such vessel from damage or injury, or to prevent damage or injury to any vessel or waterfront facility or waters of the United States, or to secure the observance of right and obligations of the United States." (325)

4. THE COAST GUARD'S PORT STATE CONTROL PROGRAM

Under its statutory and regulatory authority, the Coast Guard has implemented comprehensive and systematic port state entry control measures. (326) Under the Port State Control Program, founded in 1994 and upgraded over the years, the Coast Guard closely scrutinizes foreign-flagged vessels as they enter United States ports. (327)

Under the program, the Coast Guard requires that foreign-flagged vessels provide a 96-hour advance notice of arrival ("ANOA") to the National Vessel Movement Center prior to entering United States ports. (328) Failure to comply with this requirement may lead the Coast Guard to prevent entry into United States ports. Once an ANOA is received, the Coast Guard scrutinizes the entering vessels using a three-prong "Risk-Based Decision Making" ("RBDM") method to determine the level of threat, risk, or hazard each vessel poses. (329)

The RBDM method encompasses three "Compliance Verification Examination Matrices." (330) These three matrices are used to prioritize which foreign-flagged vessels the Coast Guard will board and inspect. (331) The first matrix, entitled "Foreign Vessels Port Security Targeting Matrix," is utilized to determine the security threat of the specific entering vessel. (332) The second matrix, the "International Ship and Port Facility Security Code and Maritime Transportation Security Act Compliance Targeting Matrix," is used to ascertain whether an entering vessel is in compliance with international and national security standards. (333) Lastly, the "Port State Control Safety and Environmental Protection Compliance Targeting Matrix" evaluates whether the foreign-flagged ships are in compliance with safety and environmental standards. (334)

In 2005, 7,850 foreign-flagged vessels made 62,818 port calls in the United States. (335) These three matrices were used to ascertain the appropriate risk level and corresponding State action for each inbound vessel. (336) Out of over 60,000 port calls, the Coast Guard conducted 10,430 safety inspections and 9,117 security exams, resulting in 127 detentions and 51 major control actions. (337) Thus, these matrices ensure that foreign-flagged vessels posing a higher security threat or risk of noncompliance are scrutinized with greater intensity and inspected more frequently than lower threat and risk vessels. (338)

XII. CONCLUSION

One of the basic tenets of the law of the sea is that the oceans are free to all States. (339) From this cardinal principle derives the principle of freedom of navigation. (340) The Restatement rightly recognizes this notion, stating that "[f]or centuries, the freedom of ships from control or interference by ships of other states has been jealously safeguarded." (341) In turn, the concept of freedom of navigation grants each sovereign State the inherent right to confer upon a vessel the right to fly its flag in the world's oceans and seas. As such, the deep-rooted legal precept of "exclusive flag-state jurisdiction" remains a central and overriding theme in the international law of the sea, which is the notion that vessels are subject to the exclusive jurisdiction of the flag State when transiting the high seas. (342) International law provides a coastal State limited jurisdictional authority over foreign-flag vessels transiting the world's oceans.

In stark contrast to the exclusive flag-State jurisdiction on the high seas, a coastal State has broad authority to impose requirements on foreign-flagged vessels calling on its ports, which includes placing unilateral conditions on port entry or even denying port access all together. Although some scholarship, including the Restatement, and legal dicta exist to support a contrary view, the general rule under international law is that there is no legal right of port entry by foreign-flagged vessels unless expressly or implicitly consented to by the host State. Moreover, international and domestic United States law makes it perfectly clear that the States have the authority to prescribe and enforce conditions on port entry.

Thus, the rights and limits of maritime port access under international and United States domestic law can be summarized as follows: (1) There is no general right of port access under customary international law; (2) The right of port access is, however, largely conferred by international treaty law, national legislation, or special permission; (3) Maritime ports, absent any other law to the contrary, are presumed to be open to foreign-flagged vessels; (4) A State may close its maritime ports temporarily on instances that affect the vital interests of the State, such as security, public health, or safety; (5) A State may prescribe conditions of port entry so long as they are reasonable and do not rise to the level that would constitute an abuse of rights; (6) A State may deny access to a specific foreign-flagged vessel or group of vessels pursuant to a specific treaty provision, for reasons of security and safety interest, or as an act of reprisal; and (7) A State must follow the principle of non-discrimination when providing access to its maritime ports and denial of port entry must not be on an arbitrary basis.

Vasilios Tasikas is a Lieutenant in the United States Coast Guard. At the time this article was written, he was assigned as the Advanced Operational Law Studies Fellow at the Center for Law and Military Operations (CLAMO) in Charlottesville, Virginia. His present assignment is in Newport, Rhode Island.

(1.) United Nations Convention on the Law of the Sea, opened for signature Dec. 6, 1982, 1833 U.N.T.S. 397, reprinted in 21 I.L.M. 1261 (1982) [hereinafter LOS Convention].

(2.) See John Norton Moore, The Regime of Straits and the Third United Nations Conference on the Law of the Sea, 74 Am. J. Int'l L. 77 (1980).

(3.) See Dale G. Stephens, The Impact of the 1982 Law of the Sea Convention on the Conduct of Peacetime Naval/Military Operations, 29 Cal. W. INT'L L.J. 283 (1999).

(4.) See Hugo Caminos & Michael R. Molitor, Progressive Development of International Law and the Package Deal, 79 Am. J. Int'l L. 871 (1985).

(5.) LOS Convention, supra note 1.

(6.) Id.

(7.) LOS Convention, supra note 1, art. 8(2). See also Articles 218-219 (authorizing a State to "institute proceedings in respect of any discharge" from a vessel voluntarily in its ports in violation with applicable international rules).

(8.) LOS Convention, supra note 1, art. 8(1).

(9.) LOS Convention, supra note 1, art. 11.

(10.) See Paroula Naskou, The Status of Internal Waters in International Law, in 7 Thesaurus Acroasium, The Law of the Sea 483 (1977). See also Horace B. Robertson, Jr., The Law of the Sea, in National Security Law 721 (John Norton Moore & Robert F. Turner eds., 2nd ed. 2005).

(11.) LOS Convention, supra note 1, art. 2(1).

(12.) See Rainer Lagoni, Internal Waters, in 11 Encyclopedia of Public International Law 153 (Bernhardt ed., 1989).

(13.) This article will not discuss the issue of "deepwater ports," which are located outside a State's inland waters. A deepwater port is "any fixed or floating manmade structure other than a vessel, or any group of such structures, that are located beyond State seaward boundaries and that are used or intended for use as a port or terminal for the transportation, storage, or further handling of oil or natural gas . . ." 33 U.S.C.S. [section] 1502(9)(A) (West 2005). Rules of port entry and typical rules on port jurisdiction do not apply to deepwater ports, which consists of offshore installations not connected with the coast or linked with it by other means, such as causeways, conveyer belts or pipelines.

(14.) George C. Kasoulides, Port State Control and Jurisdiction: Evolution of the Port State Regime 2 (1993).

(15.) These sources include a full array of academic commentary, interpretations of several treaty provisions, decisions by international entities, and the United Nations Convention on the Law of the Sea.

(16.) See Restatement (Third) of the Foreign Relations Law of the United States, at 4 (1987); see also Stephen C. McCaffrey, The Restatement's Treatment of Sources and Evidence of International Law, in Commentaries on the Restatement (Third) of the Foreign Relations Law of the United States, at 2 (1993) ("[I]ts impact may be even greater than that of the Restatements of other subjects, due to the relative lack of familiarity of the American bench and bar with international law. The likelihood that lawyers in the United States will rely upon the Restatement (Third), coupled with the increasing frequency with which practice in this country assumes a transnational dimension, makes this particularly important Restatement.").

(17.) Restatement (Third) of the Foreign Relations Law of the United States, at XI (1987) ("The Introductory Notes, the rules of law in black letter type, and the Comments [in the Restatement] express the views of the [American Law Institute]. As noted ... the Institute has sought to express the law as it would be pronounced by a disinterested tribunal, whether of the United States or some other national state or an international tribunal. The Reporters' Notes, on the other hand, reflect the views of the Reporters and describe the legal sources that they have considered relevant.").

(18.) See McCaffrey, supra note 19.

(19.) Restatement (Third) of the Foreign Relations Law of the United States [section] 512 (section 512 deals with coastal state sovereignty over territorial sea; stating, "[s]ubject to the right to [innocent passage], the coastal state has the same sovereignty over its territorial sea ... as it has in respect of its land territory.").

(20.) Id. at cmt. c.

(21.) Id.

(22.) Id.

(23.) Restatement (Second) of the Foreign Relations Law of the United States [section] 50 cmt. a (1965).

(24.) Restatement (Third) of the Foreign Relations Law of the United States [section] 512 cmt. c (1987).

(25.) See W. T. Burke, Customary Law of the Sea: Advocacy or Disinterested Scholarship?, 14 Yale J. Int'l L. 508, 527 (1989). See also Kenneth R. Simmonds, Law of the Sea, in Commentaries on the Restatement (Third) of the Foreign Relations Law of the United States 161 (1993).

(26.) 1 Charles C. Hyde, International Law Chiefly as Interpreted and Applied by the United States 581 (2d ed., rev. 1945).

(27.) C. John Colombos, The International Law of the Sea 176 (6th ed. 1967).

(28.) Restatement (Third) of the Foreign Relations Law of the United States [section] 512 Reporters' Notes 3 (1987).

(29.) A.V. Lowe, The Right of Entry into Maritime Ports in International Law, 14 San Diego L. Rev. 587, 622 (1977) cited in Restatement (Third) of the Foreign Relations Law of the United States [section] 512 Reporters' Notes 3 (1987). See also Burke, supra note 30, at 520-21.

(30.) See Burke, supra note 30, at 520-21.

(31.) Restatement (Third) of the Foreign Relations Law of the United States [section] 512 Reporters' Notes 3 (1987) (citing Lowe, supra note 34, at 622) (the Restatement oddly includes Lowe's seemingly supporting text after a "but see" signal, which further may confuse the reader as to Lowe's views on the right of port access). See Burke, supra note 30, at 520-21 n.46 (arguing that a "more forthright approach would simply have been to note that Lowe's conclusions do not affirm a right of access to ports").

(32.) Lowe, supra note 34, at 621.

(33.) Id.

(34.) Id.

(35.) See Kasoulides, supra note 14, at 2; Myres S. McDougal & William T. Burke, The Public Order of the Oceans: A Contemporary International Law of the Sea 107 (1962); Louise de La Fayette, Access to Ports in International Law, 11 Int'l J. Marine & Coastal L. 1, 11 (1996); V. D. Degan, Internal Waters, 17 Neth. Y.B. of Int'l L. 3, 15 (1986).

(36.) See Kasoulides, supra note 14, at 2; McDougal & Burke, supra note 39, at 105-07; La Fayette, supra note 39, at 11; Degan, supra note 39, at 15.

(37.) See Kasoulides, supra note 14, at 2; McDougal & Burke, supra note 39, at 103-04.

(38.) Hugo Grotius, The Freedom of the Seas, (Ralph Van Deman Magoffin trans., James Brown Scott ed., Oxford Univ. Press 1916) (1609).

(39.) C.G. Roelofsen, Grotius and International Law, in Grotius Reader 3, 14 (L.E. Van Holk & C.G. Reolofsen eds., 1983).

(40.) Id. at 10.

(41.) Id.

(42.) Grotius, supra note 42, at 7-8.

(43.) Id. at 7.

(44.) Id. at 8.

(45.) See Thomas Clingan, The Law of the Sea: Ocean Law and Policy 76 (1994) ("Hugo Grotius, for example, took the position that no sovereign could bar foreigners from having access to ports"); McDougal & Burke, supra note 39, at 103-04 (1962) (Grotius asserted that "even the sovereign of the land territory could not forbid the access of foreign vessels to local ports").

(46.) See Kasoulides, supra note 14, at 2; McDougal & Burke, supra note 39, at 103.

(47.) Colombos, supra note 32, at 160.

(48.) Id.; see also Clingan, supra note 49, at 76-77 (endorsing Colombos' position and citing the Restatement).

(49.) Hyde, supra note 31, at 581.

(50.) R. Palmer Cundick, International Straits: The Right of Access, 5 Ga. J. Int'l & Comp. L. 107, 115 (1975).

(51.) R. R. Foulke, A Treatise on International Law 383 (1920).

(52.) 2 Christian Wolff, Jus Gentium Methodo Scientifica Pertractatum 115 (1764), cited in Lowe, supra note 34, at 616.

(53.) See Lee M. Hydeman & William H. Berman, International Control of Nuclear Maritime Activities 131 (1960); see also Lowe, supra note 34, at 616.

(54.) De Lapradelle, 23 Annuaire De L'Institute De Droit International 111 (1910) (presumes that a right of access to ports is derived from the freedom of navigation on the high seas). See also Colombos, supra note 32, at 129. A similar argument was put forth by Netherlands and United Kingdom delegations at the First United Nations Conference on the Law of the Sea. UN Doc. A/CONF.13/L.52 (1958). The Netherlands delegate asserted, "it is insufficient to declare the high seas open to traffic without also guaranteeing the right into seaports." Id. Likewise, the UK representative stated that, "passage was not impeded in waters which were essential to maritime communications. The main purpose of any maritime voyage was, after all, to arrive at a port of destination." Id.

(55.) 4 Rouseau, Droit International Public 287-88 (1980); Fauchille, Traite De Droit International Public 1019 (1925) cited in Hydeman & Berman, supra note 57, at 132; Laun, Le Regime International Des Ports, 15 Haugue Recueil (1926) cited in Degan, supra note 39, at 14; Carnazza-Armari, Traite de Droit International Public En Temps De Paix 74, cited in McDougal & Burke, supra note 39, at 104-05; see also Louis B. Sohn & Kristen Gustafson, The Law of the Sea in a Nutshell 79-80 (1984).

(56.) See Kasoulides, supra note 14, at 4; McDougal & Burke, supra note 39, at 103-08. La Fayette, supra note 39, at 11.

(57.) See La Fayette, supra note 39, at 12.

(58.) Degan, supra note 39, at 12.

(59.) K. Hakapaa, Marine Pollution in International Law: Material Obligations and Jurisdiction 163 (1981).

(60.) Kasoulides, supra note 14, at 4-5.

(61.) See 1 Aaron L. Shalowitz, Shore and Sea Boundaries 23 (1962) ("the common legal feature of all inland waters is the complete sovereignty which a nation exercises over them, the same as it exercises over its land. This sovereignty includes the right of exclusion of foreign vessels"); McDougal & Burke, supra note 39, at 107 ("coastal state has full authority over access to ports and is competent to exercise it, virtually at will, to exclude entry by foreign vessels"); La Fayette, supra note 39, at 22 ("the power of a state to control access to its ports derives from its territorial sovereignty and limitations on sovereignty are not to be presumed").

(62.) See Justin S. C. Mellor, Missing the Boat: The Legal and Practical Problems of the Prevention of Maritime Terrorism, 18 Am. U. Int'l L. Rev. 341, 391 (2002).

(63.) The Geneva Convention and Statute on the International Regime of Maritime Ports, Dec. 9, 1923, 58 L.N.T.S. 285, reprinted in 22 Am J. Int'l L. 69-82 (1928) [hereinafter 1923 Ports Convention]. The original signatories to the 1923 Geneva Convention include: the British Empire (with New Zealand and India), Germany, Belgium, Bulgaria, Brazil, Chili, Denmark, Spain, Estonia, Greece, Hungary, Italy, Japan, Lithuania, Norway, Netherlands, Salvador, the Kingdom of Serbia, Croats & Slovenes, Siam, Sweden, Switzerland, Czechoslovakia, and Uruguay.

(64.) Since its inception the following countries have ratified the 1923 Ports Convention: Antigua and Barbuda, Australia, Austria, Belgium, Burkina Faso, Cote d'Ivoire Croatia, Cypress, Czech Republic, Denmark, Estonia, Fiji, France, Great Britain, Germany, Greece, Hungary, India, Iraq, Italy, Japan, Madagascar, Malaysia, Malta, Marshal Islands, Mauritius, Mexico, Monaco, Morocco, Netherlands, New Zealand, Nigeria, Norway, Slovakia, Sweden, Switzerland, Trinidad and Tobago, Vanuatu, Yugoslavia,, Zimbabwe; the following countries are signatories but have yet to ratify the conventions: Brazil, Bulgaria, Chile, Lithuania, Panama, El Salvador, Spain, Uruguay. United Nations Treaty Collection Web Site, available at http://untreaty.un.Org/sample/EnglishInternetBible/partII/treaty-20.htm#Nl (last visited Jan. 24, 2006).

(65.) See Restatement (Third) of the Foreign Relations Law of the United States [section] 512 Reporter's Notes 3 (1987); Rene-Jean Dupuy & Daniel Vignes, A Handbook on the New Law of the Sea 252 (1991); Sohn & Gustafson, supra note 59, at 79-80.

(66.) Dupuy & Vignes, supra note 69, at 252.

(67.) 1923 Ports Convention, supra note 67, art. 2.

(68.) Id.

(69.) Id.

(70.) 1923 Ports Convention, supra note 67, art. 1.

(71.) Id. at art. 13.

(72.) Id. at art. 18.

(73.) Id. at art. 14.

(74.) Id. at art. 9.

(75.) Id. at art. 16.

(76.) Id.

(77.) Saudi Arabia v. Arabian American Oil Co. Arbitration (1958) (Sauser-Hall, Badawi/Hassan, Habachi, Arb.), reprinted in 27 International Law Reports 117 (1963) [hereinafter ARAMCO Arbitration Tribunal].

(78.) Id.

(79.) Id. at 212.

(80.) Id.

(81.) Id.

(82.) Saudi Arabia v. Arabian American Oil Co. Arbitration (1958) (Sauser-Hall, Badawi/Hassan, Habachi, Arb.), reprinted in 27 International Law Reports 117, 212 (1963) [hereinafter ARAMCO Arbitration Tribunal].

(83.) Id.

(84.) 1923 Ports Convention, supra note 67, art 16.

(85.) Id.

(86.) Id.

(87.) See Lowe, supra note 34, at 605.

(88.) ARAMCO Arbitration Tribunal, supra note 81, at 212.

(89.) Id.

(90.) P. Guggenheim, Traite de Droit International Public 419 (1953).

(91.) La Fayette, supra note 39, at 16; Lowe, supra note 34, at 601-04.

(92.) Id.

(93.) Id.

(94.) Compare Orinoco Steamship Co. Arbitration (recognizing a State's "right to open and close, as a sovereign of its own territory, certain harbors, ports, and rivers" by virtue of "the very existence of the Government") and Poggioli Arbitration (stating "that it was within [the States] police power to close [the port]" and "the power of the government must be regarded as plenary and the reasons for its exercise beyond question"), cited in J.H. Ralston, The Law and Procedure of International Tribunals 305-06 (1926).

(95.) See R. R. Churchill & A.V. Lowe, The Law of the Sea 61 (3d ed. 1999); Kasoulides, supra note 14, at 2; La Fayette, supra note 39, at 12; Lowe, supra note 34, at 601-04.

(96.) North Sea Continental Shelf (Germany v. Denmark, Germany v. Netherlands) 1969 I.C.J. 3 (Feb. 20) [hereinafter North Sea Continental Shelf].

(97.) Military and Paramilitary Activities (Nicaragua v. United States), 1986 I.C.J. 14 (Jun. 27) [hereinafter Military and Paramilitary Activities].

(98.) North Sea Continental Shelf, supra note 100.

(99.) Military and Paramilitary Activities, supra note 101.

(100.) For references concerning the North Sea Continental Shelf, see Restatement (Third) of the Foreign Relations Law of the United States [section][section] 102, 103,201, 325, 511, 515, 517, 902 (1987); for references concerning Military and Paramilitary Activities, see Restatement (Third) of the Foreign Relations Law of the United States [section][section] 903,905.

(101.) See Burke, supra note 30, at 508. But see Jurisdiction of the European Commission of the Danube Case, Advisory Opinion, 1927 P.C.I.J. (ser. B) No. 14. (the Court stated that based on treaty obligations there is "freedom of movement for vessels going to and from the sea and this also extends to ships coming into or leaving a port."); Oscar Chinn Judgment, 1934 P.C.I.J. (ser. A/B) No. 63 (the Court concluded that "[according to the conception universally accepted, the freedom of navigation referred to by the [Germain-en-Laye] Convention comprises freedom of movement for vessels, freedom to enter ports, and to make use of the plants and docks, to load an unload goods and transport goods and passengers").

(102.) Convention on the Continental Shelf, Apr. 29, 1958, 15 U.S.T. 471, 499 U.N.T.S. 311.

(103.) The technical and legal aspects of the continental shelf are beyond the scope of this article and not necessary to the discussion on customary law formation through treaty provisions. All the same, the ICJ defined an "equidistance line" as "[o]ne which leaves to each of the parties concerned all those portions of the continental shelf that are nearer to a point on its own coast than they are to any point on the coast of the other party. An equidistance line may consist either of a 'median' line between 'opposite' States, or of a 'lateral' line between 'adjacent' States." North Sea Continental Shelf, supra note 100, at 17.

(104.) North Sea Continental Shelf, supra note 100, at 17.

(105.) Id. at 25.

(106.) Id. at 38.

(107.) Id. at 108-09.

(108.) North Sea Continental Shelf, supra note 100, at 108-109.

(109.) Id. at 41.

(110.) Id.

(111.) Id. at 42.

(112.) Id.

(113.) Id. at 42-44.

(114.) Id. at 41.

(115.) North Sea Continental Shelf, supra note 100, at 41.

(116.) ARAMCO Arbitration Tribunal, supra note 81, at 212.

(117.) Id.

(118.) See supra text accompanying note 67.

(119.) See supra note 68.

(120.) See La Fayette, supra note 39, at 2.

(121.) 1923 Ports Convention, supra note 67, at preamble.

(122.) Id.

(123.) Id. arts. 2, 8.

(124.) North Sea Continental Shelf, supra note 100, at 42.

(125.) Military and Paramilitary Activities, supra note 101.

(126.) Id. at 111-12.

(127.) Military and Paramilitary Activities, supra note 101, at 138-42.

(128.) Id. at 111-12.

(129.) Id.

(130.) Id.

(131.) U.N. Charter art. 2, para. 1.

(132.) Military and Paramilitary Activities, supra note 101, at 111.

(133.) Id.

(134.) Id. at 138-42.

(135.) Id.

(136.) Id. at 140.

(137.) Id.

(138.) Military and Paramilitary Activities, supra note 101, at 140.

(139.) Id.

(140.) Id.

(141.) Restatement (Third) of the Foreign Relations Law of the United States [section] 512 Reporters' Notes 3 (1987).

(142.) Id.

(143.) Resolution on the Status of Ships and their Crews in Foreign Ports in Time of Peace and in Time of War, Aug. 23, 1898, art. 3, reprinted in resolutions of the institute of International Law: Dealing with the Law of Nations 143-56 (J. Scott ed. 1916) [hereinafter 1898 Hague Resolution].

(144.) Resolution on the Status of Ships and their Crews in Foreign Ports in Time of Peace and in Time of War, Aug. 23, 1898, art. 3, reprinted in resolutions of the institute of International Law: Dealing with the Law of Nations 143-56 (J. Scott ed. 1916) [hereinafter 1898 Hague Resolution].

(145.) Id.

(146.) See Gidel, Le Droit International Public De La Mer 39 (1932).

(147.) Id.

(148.) 1898 Hague Resolution, supra note 149.

(149.) Resolution Adopted by the Institute of International Law at its Session of Stockholm, Aug. 28, 1928, art. 3, reprinted in James Brown Scott, The Institute of International Law, 22 Am. J. Int'l L. 844-51 (1928) [hereinafter 1928 Stockholm Resolution].

(150.) Id.

(151.) Id.

(152.) Id. (like the 1898 Hague Resolution, the 1928 Stockholm Resolution also stated that "[t]his power is not excluded by the existence of treaty provision guaranteeing in a general way free access to the said ports or anchorages").

(153.) Gidel, supra note 152, at 41.

(154.) Id.

(155.) Resolution Adopted by the Institute of International Law at its Session of Amsterdam, Sep. 27, 1957, reprinted in Institut De Droit International 5-9 (1992) [hereinafter 1957 Amsterdam Resolution].

(156.) Resolution Adopted by the Institute of International Law at its Session of Amsterdam, Sep. 27, 1957, reprinted in Institut De Droit International 5-9 (1992) [hereinafter 1957 Amsterdam Resolution] at preamble.

(157.) Id. art. II.

(158.) Restatement (Third) of the Foreign Relations Law of the United States [section] 512 cmt. c & Reporters' Notes 3 (1987).

(159.) Id.

(160.) See La Fayette, supra note 39, at 10; Lowe, supra note 34, at 602; Burke, supra note 30, at 527.

(161.) Degan, supra note 39, at 18-19.

(162.) Id.

(163.) Dupuy & Vignes, supra note 69, at 505-06.

(164.) Dupuy & Vignes, supra note 69, at 505 n.15.

(165.) Economic Cooperation in Merchant Shipping--Treatment of Foreign Merchant Vessels in Ports, UNCTAD/TD/B/C.4/136 (Sep. 9, 1975); see also Churchill & Lowe, supra note 99, at 62 n.7; Kasoulides, supra note 14, at 10 n.57.

(166.) Economic Cooperation in Merchant Shipping--Treatment of Foreign Merchant Vessels in Ports, UNCTAD/TD/B/C.4/136 (Sep. 9, 1975).

(167.) Id.

(168.) Id.

(169.) Id.

(170.) Id.

(171.) Id.

(172.) Id.

(173.) Economic Cooperation in Merchant Shipping--Treatment of Foreign Merchant Vessels in Ports, UNCTAD/TD/B/C.4/136 (Sep. 9, 1975).

(174.) Restatement (Third) of the Foreign Relations Law of the United States [section] 512 Reporters' Notes 5 (1987).

(175.) Inter-Governmental Maritime Consultive Org. [IMCO], Proposal on an International Convention on the Regime of Vessels in Foreign Ports, IMCO Doc. C/XXXIII/14/1 (1974).

(176.) Id. art. 3.

(177.) Id.

(178.) See IMCO, Consideration of Recommendations to the Council on Possible Work on a Convention on the Regime of Vessels in Foreign Ports, IMCO Doc. XXVI/2 (1974).

(179.) IMCO, Report of the Legal Committee on the Work of its Thirty-first Session, IMCO Doc. XXXI/7 (1976).

(180.) IMCO, Report of the Legal Committee on the Work of its Thirty-first Session, IMCO Doc. XXXI/7 (1976).

(181.) IMCO, Consideration of Future Work on a Convention on the Regime of Vessels in Foreign Ports, IMCO Doc. XXXI/3, Annex 1 (1976).

(182.) Id. (Poland's delegation submitted that "[t]he establishing of the rules concerning legal status of vessels in foreign ports in a multilateral convention seems to be appropriate.").

(183.) IMCO, Consideration of Future Work on a Convention on the Regime of Vessels in Foreign Ports, IMCO Doc. XXXI/3, Annex I (1976). (Austria's delegation stated that "[t]he elaboration of a draft agreement.. . would be appreciated .. . since this [ ] [ ] matter has [ ] [ ] not been sufficiently settled by multilateral agreements."); (Norway's delegation thought the document "forms a good basis for further discussion on the matter.").

(184.) Id. (China's delegation submitted that "[i]t is obvious that this is an outrageous infringement to the sovereign rights of the coastal States, and is absolutely unacceptable to any State that treasures its national sovereignty. Therefore, the Chinese Government resolutely opposes this proposal of the U.S.S.R. and resolutely opposes to take the above-mentioned draft convention as a basis for discussion.").

(185.) Id. (Denmark's delegation states that it "does not see any urgency to deal with the proposal at this stage."); (France's delegation states that "[i]t is premature to draw up a convention at the present stage."); (The Netherlands' delegation submitted that "existing regulations, such as the Geneva Convention on the International Regime of Maritime Ports, 1923, the bilateral agreements and rules and usages of international law which are in force, satisfactorily guarantee the position.").

(186.) Id.; See also IMCO, Report of the Legal Committee on the Work of its Thirty-first Session, IMCO Doc. XXXI/7 (1976).

(187.) IMCO, Report of the Legal Committee on the Work of its Thirty-first Session, IMCO Doc. XXXI/7 (1976).

(188.) Restatement (Third) of the Foreign Relations Law of the United States Introductory Note, [section][section] 502, 513, 603 (1987).

(189.) Restatement (Third) of the Foreign Relations Law of the United States [section] 512 Reporters' Notes 5 (1987) {citing Albert de La Pradelle, "the many conventions on commerce and navigation which provide for [access to ports] have established a rule of customary law." (citation omitted)); see also Sohn & Gustafson, supra note 59, at 80.

(190.) Herman Walker, Jr., Modern Treaties of Friendship, Commerce and Navigation, 42 Minn. L. Rev. 805 (1957-58).

(191.) Churchill & Lowe, supra note 99, at 63.

(192.) Walker, supra note 196.

(193.) Id.

(194.) Treaty on Friendship, Commerce and Navigation, U.S.-Greece, art. XXI, para. 4, Oct. 13, 1951, 5 U.S.T. 1829 [hereinafter US-Greece FCN Treaty].

(195.) General Agreement on Tariffs and Trade, Oct. 30, 1947, 61 Stat. A-5, 55 U.N.T.S. 188 [hereinafter GATT].

(196.) General Agreement on Tariffs and Trade, Oct. 30, 1947, 61 Stat. A-5, 55 U.N.T.S. 188 [hereinafter GATT], para. 2.

(197.) Ted L. McDorman, Regional Port State Control Agreements: Some Issues of International Law, 5 Ocean & Coastal L.J. 207, 220 (2000).

(198.) Churchill & Lowe, supra note 99, at 63-64. Churchill & Lowe also cite the European Community Treaty as implying that there is a right of access to member State ports based on the principles of non-discrimination, free-movement of goods, and reciprocity. Id. See also Convention on the Facilitation of International Maritime Traffic, art. 1, Apr. 9, 1965, 18 U.S.T. 411, 591 U.N.T.S. 265 (mandating that all parties adopt "all appropriate measures to facilitate and expedite international maritime traffic and prevent unnecessary delays to ships [in ports] and to person and property on board").

(199.) See Mellor, supra note 66, at 394-98; McDorman, supra note 203, at 219-23.

(200.) US-Greece FCN Treaty, supra note 200, art. XXIII, para. d.

(201.) GATT, supra note 201, art. XXI.

(202.) US-Greece FCN Treaty, supra note 200, art. XXIII.

(203.) GATT, supra note 201, art. XXI.

(204.) Id. art. XX.

(205.) See Churchill & Lowe, supra note 99, at 63.

(206.) See Churchill & Lowe, supra note 99, at 63-64.

(207.) R.R. Baxter, Multilateral Treaties as Evidence of Customary International Law, 41 Brit. Y.B. of Int'l L. 275, 278 (1968).

(208.) Restatement (Third) of the Foreign Relations Law of the United States [section] 512 Reporters' Notes 5 (1987) {citing Albert de La Pradelle, "the many conventions on commerce and navigation which provide for [access] [to] [ports] have established a rule of customary law." (citation omitted)); See also Sohn & Gustafson, supra note 59, at 80.

(209.) See North Sea Continental Shelf, supra note 100, at 41.

(210.) See McDougal & Burke, supra note 39, at 110.

(211.) Kasoulides, supra note 14, at 8.

(212.) B.K.J. Vitanyi, "The Regime of Navigation of International Waterways, Part I: The Beneficiaries of the Right of Navigation, 5 Neth. Y.B. of Int'l L. 11, 166 (1974). Vitanyi classifies those identical or similar treaty provisions that are repeatedly adopted in string of bilateral treaties and those where they are adopted in a succession of multilateral treaties. He concludes that "in the former case the constant recurrence of the provision can be attributed to a lack of conviction, on the part of the Contracting Parties, that the action or abstention provided for is required under the common law of international relations. Quite different is the situation where a rule is repeatedly included in comprehensive collective treaties which have legal effect not only with respect to parties but also to third states." Id.

(213.) La Fayette, supra note 39, at 4.

(214.) See Kasoulides, supra note 14, at 19; La Fayette, supra note 39, at 4-5. But see Convention and Statute on the Regime of International Waterways, Apr. 20, 1921, 7 L.N.T.S. 35 (interpreted to grant a limited right of access to maritime ports); Hydeman & Berman, supra note 57, at 139 n.48 (citing Gidel, Le Droit International Public De La Mer 39 (1932); Fauchille, Traite De Droit International Public 1019 (1925)).

(215.) International Convention for the Safety of Life at Sea, Nov. 1, 1974, 32 U.S.T. 47, 184 U.N.T.S. 276 [hereinafter SOLAS].

(216.) International Convention for the Prevention of Pollution from Ships, Nov. 2, 1973, 1340 U.N.T.S. 184.

(217.) The Protocol of 1978 Relating to the International Convention for the Prevention of Pollution from Ships, Feb. 17, 1978, 1340 U.N.T.S. 61 [hereinafter MARPOL].

(218.) Convention on the Liability of Operators of Nuclear-Powered Ships, art. XVII, May 25, 1962, reprinted in 57 Am. J. Int'l L. 268 (1963).

(219.) South Pacific Nuclear Free Zone Treaty (Treaty of Rarotonga), art. 5, para. 2, Aug. 6, 1985, 24 ILM 1440.

(220.) Restatement (Third) of the Foreign Relations Law of the United States [section] 512 Reporters' Notes 3 (1987).

(221.) See La Fayette, supra note 39, at 3.

(222.) LOS Convention, supra note 1, art. 2, para. 1.

(223.) Id. para. 3.

(224.) Id. art. 8, para. 1.

(225.) Id. art. 11.

(226.) See 2 United Nations Convention on the Law of the Sea: A Commentary 122 (Myron H. Nordquist et al. eds., 1991) [hereinafter Nordquist (vol. 2)]. The U.N., in a separate report, has defined "port" as "a place provided with various installations, terminals and facilities for loading and discharging cargo or passengers." United Nations for Ocean Affairs and the Law of the Sea, Baselines: An Examination of the Relevant Provision of the United Nations Convention on the Law of the Sea, Appendix 1 (Glossary of Technical Terms), 47 (1989).

(227.) See Nordquist (vol. 2), supra note 232, at 121.

(228.) LOS Convention, supra note 1, art. 11.

(229.) See Naskou, supra note 10, at 483; Lagoni, supra note 12, at 153.

(230.) LOS Convention, supra note 1, art. 8, para. 2.

(231.) See Churchill & Lowe, supra note 99, at 61.

(232.) See Churchill & Lowe, supra note 99, at 60-61.

(233.) See id. at 61.

(234.) 1 D. P. O'Connell, The International Law of the Sea, 269 (I. A. Shearer ed., Clarendon Press 1984).

(235.) LOS Convention, supra note 1, art. 18.

(236.) Id. Article 18 derives from Article 14 of the 1958 Convention on the Territorial Sea and Contiguous Zone, which does not include any provision regarding "roadstead or port facility outside internal waters." Article 14(2) of the 1958 TSC Convention provides that: "[p]assage means navigation through the territorial sea for the purposes either of traversing that sea without entering its waters, or of proceeding to internal waters, or for making for the high seas from internal waters." Convention on the Territorial Sea and Contiguous Zone, Apr. 29, 1958, 15 U.S.T. 1609, 516 U.N.T.S. 205 [hereinafter TSC Convention].

(237.) O'Connell, supra note 240, at 269.

(238.) Id.

(239.) Lowe, supra note 34, at 610.

(240.) LOS Convention, supra note 1, art. 255.

(241.) 4 United Nations Convention on the Law of the Sea: A Commentary 599 (Myron H. Nordquist et al. eds., 1991) [hereinafter Nordquist (vol. 4)].

(242.) See id.; see also Dupuy & Vignes, supra note 69, at 941-42.

(243.) See Nordquist (vol. 4), supra note 247, at 599; see also Dupuy & Vignes, supra note 69, at 941-42.

(244.) Id.

(245.) Id.

(246.) Id.

(247.) Restatement (Third) of the Foreign Relations Law of the United States [section] 512 cmt. c (1987).

(248.) Id. at Reporters' Note 3.

(249.) See Kasoulides, supra note 14, at 4; Churchill & Lowe, supra note 99, at 62.

(250.) Military and Paramilitary Activities, supra note 101, at 111.

(251.) LOS Convention, supra note 1, art. 25.

(252.) Id. at para. 2; see also TSC Convention, supra note 242, art. 16, para. 2.

(253.) Dupuy & Vignes, supra note 69, at 941.

(254.) LOS Convention, supra note 1, art. 211.

(255.) Id. para. 3.

(256.) MARPOL, supra note 223, art. 5, para. 3.

(257.) Convention for the Prevention of Pollution of the Sea by Oil, art. VI, May 12, 1954, 327 U.N.T.S. 3, 1958 U.K.T.S. 56.

(259.) SAS, supra note 221, chap. 20, sec. 2, para. 1. Hydeman & Berman, supra note 57, at 133.

(260.) McDougal & Burke, supra note 39, at 551.

(261.) LOS Convention, supra note 1, art. 25, para. 2.

(262.) Churchill & Lowe, rapra note 99, at 63.

(263.) LOS Convention, supra note 1, art. 300.

(264.) G. D. S. Taylor, The Content of the Rule Against Abuse of Rights in International Law, 46 British Y.B. of Int'l L. 322 (1972-73); see also H. Lauterpacht, The Function of Law in the International Community (1933).

(265.) Taylor, supra note 271, at 322.

(266.) Id. at 326; see also A. C. Kiss, L'Abus De Droit en Droit International 184-87 (1953) (discussing three categories of abuse of rights: interfering with the rights and powers of another State, use of power without properly conferred authority, and discretionary acts that are unjustifiable or arbitrary in manner).

(267.) See Anglo-Norwegian Fisheries Case (U.K. v. Nor.), 1951 I.C.J. 116 (Dec. 18), at 152 ("[t]he principle, formerly correct, in the days of absolute sovereignty, is on longer so at the present day; the sovereignty of States is henceforth limited . . ."). But see Lowe, supra note 34, at 620 (arguing that "no limitation obliging States to admit foreign merchant ships to their ports was established in [customary] international law").

(268.) John B. Moore, 2 A Digest of International Law 269 (1906) (statement was made January 19, 1816 to Spanish Foreign Minister, Chev. De Onis).

(269.) Id. (this statement was made to Mr. Barringer on Oct. 28, 1852).

(270.) See Lowe, supra note 34, at 611.

(271.) In reply to the British government, who utilized the U.S. 1852 position to protest the application of liquor laws on British vessels while in American ports, the United States maintained that it "did not admit that the case which arose in 1852 forms a serviceable precedent in the present day situation." H.G. Chilton to Lord Curzon, Public Record Office, London (Aug. 2 1923) cited in Lowe, supra note 34, at 611. For a general background in U.S. prohibition era maritime law, see Phillip C. Jessup, The Law of Territorial Waters and Maritime Jurisdiction (1927).

(272.) The Schooner Exchange v. McFadden, 11 U.S. (7 Cranch) 116 (1812) (in 1810, the Exchange, a merchant ship owned by two U.S. citizens, was seized off the American coast by a French naval warship pursuant to general orders issued by Napoleon Bonaparte. In 1811, the Exchange, now a converted French warship sailed into the port of Philadelphia out of "necessity, and not voluntarily" to avoid bad weather. Once in Philadelphia, the original owners brought an in rem liable action for recovery of the ship).

(273.) Id. at 136.

(274.) Id. "Comity" has been defined as . . . "the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws." Hilton v. Guyot, 159 U.S. 113, 163-64 (1895).

(275.) The Schooner Exchange, 11 U.S. (7 Cranch) at 145-46.

(276.) Id. at 136.

(277.) Id. The Court also stated that "[ujnless closed by local law[,] the ports of a friendly nation are considered as open to the public ships of all powers with which it is at peace." Id. at 141.

(278.) The Schooner Exchange, 11 U.S. (7 Cranch) at 144.

(279.) Patterson v. Bark Eudora, 190 U.S. 169 (1903).

(280.) Id. at 178.

(281.) Id.

(282.) Strathearn Steamship Co. v. Dillon, 252 U.S. 348, 356 (1920); see also Cunard Steamship Co. v. Mellon, 262 U.S. 100, 124 (1923).

(283.) Lauritzen v. Larsen, 345 U.S. 571, 592 (1953).

(284.) Khedivial Line v. Seafarers' Int'l Union, S.A.E., 278 F.2d 49, (2d Cir. 1960).

(285.) Id.

(286.) Id. at 52.

(287.) Khedivial Line v. Seafarers' Int'l Union, S.A.E., 278 F.2d 49, (2d Cir. 1960).

(288.) Id.

(289.) Canadian Transp. Co. v. United States, 663 F.2d 1081, (D.C. Cir. 1980).

(290.) Id. at 1083.

(291.) Id. at 1091.

(292.) Message from the President of the United States Transmitting the United Nations Law of the Sea of 1982, S. Treaty Doc. No. 103-39, at 14 (1994) [hereinafter S. Treaty Doc. No. 103-39].

(293.) Message from the President of the United States Transmitting the United Nations Law of the Sea of 1982, S. Treaty Doc. No. 103-39, at 14 (1994) [hereinafter S. Treaty Doc. No. 103-39].

(294.) Henry S. Marcus et al., Federal Port Policy in the United States 139(1976).

(295.) Ports and Waterways Safety Act of 1972, 33 U.S.C. [section][section] 1221-1236 (1994).

(296.) See Craig H. Allen, Federalism in the Era of International Standards: Federal and State Government Regulation of Merchant Vessels in the United States (Part II), 29 J. Mar. L. & COM. 565,595 (1998).

(297.) 33 U.S.C. [section] 1223 (1994).

(298.) Id.

(299.) 33 C.F.R. [section][section] 1.01- 30 (2007). "Captains of the Port. . . enforce within their respective areas port safety and security and marine environmental protection regulations, including, without limitation, regulations for the protection and security of vessels, harbors, and waterfront facilities; anchorages; security zones; safety zones; regulated navigation areas; deepwater ports; water pollution; and ports and waterways safety." Id.

(300.) See 33 C.F.R [section][section] 160.101-115 (2007); 33 C.F.R. [section][section] 161.1-60 (2007); 33 C.F.R. [section][section] 1.01-30 (2007); 33 C.F.R. [section] 160.5 (2007).

(301.) 33 U.S.C. [section] 1225 (1994).

(302.) 33 C.F.R. [section] 165.20(2007).

(303.) Id. [section] 165.23.

(304.) 33 U.S.C. [section] 1226(1994).

(305.) 33 C.F.R. [section] 160(2007).

(306.) Id.

(307.) 33 C.F.R. [section] 160.111 (2007).

(308.) 33 U.S.C. [section] 1228 (1994). The Port and Waterway Safety Act also provides the authority for mandating a pre-arrival notice for all U.S. and foreign-flagged vessels. 33. U.S.C. [section] 1223(a)(5) (1994)). Under 33 C.F.R. Part 160, the Coast Guard now requires all vessels 300 gross tons or greater in international transit to provide a 96-hour advance order of arrival to the National Vessel Movement Center. 33 C.F.R. [section] 160.T208 (2007). Information in the 96-hour notice must include, among other things, a list of crew, passengers, and any hazardous cargo. Id.

(309.) 50 U.S.C. [section] 191 (2007).

(310.) Id.

(311.) Act of June 15, 1917, Pub. L. No. 65-24, 40 Stat. 217-31 (codified as amended in 50 U.S.C. [section] 191).

(312.) 50 U.S.C. [section] 191 (2007).

(313.) Id.

(314.) 50 U.S.C. [section] 191 (2007).

(315.) Id.; See Commander Gary Filicetti and Lieutenant John Luce, The Posse Comitatus Act: Setting the Record Straight on 124 Years of Mischief and Misunderstanding Before Any More Damage is Done, 175 Mil. L. Rev. 86, 129-32 (2003) (according to the authors, the authority of the Espionage Act has been invoked three times in U.S. history: World War I, World War II and 1996 following the shooting of two "Brothers to the Rescue" airplanes by the Cuban military).

(316.) Act of Aug. 9, 1950, 64 Stat. 427 (codified at 50 U.S.C. [section] 191).

(317.) 50 U.S.C. [section] 191 (2007).

(318.) Id.

(319.) Id.

(320.) Id.

(321.) Exec. Order No. 10,173, 3 C.F.R. 357 (1949-1953).

(322.) Id.

(323.) Exec. Order: Further Amending Executive Order 10,173, as Amended , Prescribing Regulations Relating to the Safeguarding of Vessels, Harbors, Ports, and Waterfront Facilities of the United States (Aug. 21, 2002) (amending 33 C.F.R. part 6).

(324.) 33 C.F.R. part 6 (2007).

(325.) 33 C.F.R. [section] 6.04-7 (2007).

(326.) 2005 U.S. Coast Guard Ann. Rep., available at http://www.uscg.mil/hq/g-m/pscweb/annualReport05.pdf.

(327.) 2004 U.S. Coast Guard Ann. Rep., available at http://www.uscg.mil/hq/g-m/pscweb/annual Report04.pdf.

(328.) 33 C.F.R. [section] 160.T208 (2007); 33 C.F.R. [section] 160.206 (2007).

(329.) Risk-Based Decision-Making, COMMANDANT INSTRUCTION 16010.3 available at http://www.uscg.mil/hq/g-m/risk/RBDM_files/comdtinstl60103PDF.pdf; see also ISPS/MTSA Compliance Targeting Matrix, available at http://www.uscg.mil/hq/g- m/pscweb/ISPS-MTSA.htm.

(330.) Risk-Based Decision-Making, COMMANDANT INSTRUCTION 16010.3 available at http://www.uscg.mil/hq/g-rn/risk/RBDM_files/comdtinstl60103PDF.p(lf; see also ISPS/MTSA Compliance Targeting Matrix, available at http://www.uscg.mil/hq/g-m/pscweb/ISPS-MTSA.htm.

(331.) Id.

(332.) Id.

(333.) Id.

(334.) Id.

(335.) 2005 U.S. Coast Guard Ann. Rep., supra note 334, at 2-3.

(336.) Id.

(337.) Id. The Coast Guard defines "major action" as " a control measure (detention, denial of entry, or expulsion) imposed by the U.S. upon a foreign vessel when clear ground exists indicating that a ship is not in compliance with the requirement of SOLAS Chapter XI, or part A of the ISPS Code."". at 5.

(338.) See Rachael B. Bralliar, Protecting U.S. Ports with Layered Security Measures for Container Ships, 185 Mil. L. Rev. 1 (2005) (comprehensive review of U.S. port security measures involving container ships).

(339.) LOS Convention, supra note 1, art. 92, para. 1.

(340.) Id. at art. 87.

(341.) Restatement (Third) of the Foreign Relations Law of the United States [section] 512 Reporters' Notes 3 (1987).

(342.) LOS Convention, supra note 1, art. 92, para. 1.
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