Is there a Right of Entry into Ports for Ships in Distress?

Em. Prof. Dr. Eduard Somers,

Law School Ghent University
Faculty of Applied Economics University Antwerp
President of the Royal Belgian Marine Society

I. Introduction
1. Under international law, a State exercises sovereignty over its
territory. For coastal States, this right of sovereignty1 may be
restricted by international law as e.g. by the existence of the right of
innocent passage in the territorial sea. The territory of a State
includes land territory, water territory and airspace.
Thus, rivers, canals, lakes falling within the national boundaries of a
State will come under the sovereignty of the State. They belong to
the water territory of the State and are referred to as inland waters.
They also include water areas that are completely landlocked and
that because of their large extent are referred to as "sea", e.g. the
Caspian Sea, the Dead Sea, the Aral Sea2. In addition, the water
territory of a coastal State includes so-called internal waters, i.e.
those waters lying on the landward side of the baseline3 from which
the breadth of the territorial sea and other marine zones are
1
Generally see: S. BESSON, Sovereignty, in Max Planck Encyclopedia of Public International Law
(2011) and the extensive bibliography mentioned there. Also A. CASSESE, International Law, Oxford
University Press, 2005; M. SHAW, International law, Cambridge University Press, 2008; J. CRAWFORD,
Brownlie’s Principles of Public International Law, Oxford University Press, 2019, 431-440.
2
The US Great Lakes, in reality inland seas, also belong to inland waters. The fact that some of these
inland seas are saltwater areas is irrelevant. These inland seas are not considered as marine zones
and they are therefore not subject to the law of the sea.
3
The normal baseline is the low-water line along the coast as marked on large-scale charts officially
recognized by the coastal State (Art. 5 Law of the Sea Convention, further LOSC). In localities where
the coastline is deeply indented and cut into, or if there is a fringe of islands along the coast in its
immediate vicinity, the method of straight baselines joining appropriate points may be employed in
drawing the baseline (art.7 LOSC). Generally see: E. SOMERS, Introduction to the International Law of
the Sea (in Dutch), 2010, 22-23.
determined. Consequently, internal waters are part of the inland
waters of a coastal State. They include all waters from coastal ports,
bays, gulfs and estuaries up to the baseline as well as waters enclosed
by straight baselines. The baseline marks the division between the
part of the State territory subject to the unrestricted sovereignty of
the coastal State and that part of the State territory, the territorial
sea, where sovereignty is subject to restrictions under international
law. Consequently, the legal regime of inland waters, including
internal waters, is almost entirely governed by national law just as it is
for the land territory. Only to a limited extent will rules of the law of
the sea apply4 .
With regard to navigation in internal waters, two main aspects can be
addressed, namely access to internal waters and seaports in
particular and the exercise of jurisdiction over foreign vessels in
internal waters. In both cases, the unrestricted sovereignty of the
coastal State may give rise to difficulties. In this contribution we will
only deal with the issue of access of ships to internal waters,
including seaports, and more in particular with the access of ships in
distress or in need of assistance5.
II. Access to seaports
2. First of all, we should clarify the legal aspects of the concept of
seaport. The Treaty definitions of a seaport do not fully reflect
current reality. For instance, the International Port Statute (Geneva
Convention of 9 December 1923), States that: “All ports which are
normally frequented by sea-going vessels and used for foreign trade
shall be deemed to be maritime ports “ (art.1). This is a restrictive
definition that places military or fishing ports outside the scope of the
4
This mainly with regard to delimitation of low-tide elevations, bays, estuaries, islands... Where the
establishment of a straight baseline has the effect of enclosing as internal waters areas which had
not previously been considered as such, a right of innocent passage shall exist in those waters
( Article 8.2 LOSC)
5
“Ship in need of assistance means a ship in a situation, apart from one requiring rescue of persons
on board, that could give rise to loss of the ship or to an environmental or navigational hazard” IMO
LEG 110/12/1 Annex, page 8, 1.5.1. Generally see J.E. NOYES, Ships in Distress, in R. WOLFRUM (ed.),
The Max Planck Encyclopaedia of Public International Law, Oxford University Press, 2012, 173-178.
Statute. The same applies to ports that are not visited by sea-going
vessels, or those used only for domestic transport. Thus, they are not
subject to the reciprocity rule on access introduced by the
Convention (art.2). However, the required measure of normal
frequency could e.g. also put ports that are not ice-free outside the
Statute. A more useful definition could state that a seaport is the
place where seagoing vessels usually call at to disembark or take on
board cargo, passengers or crew6 .
A distinction should be made with roadsteds, which are usually
coastal, naturally sheltered anchorages without permanent maritime
infrastructure. The Hague Codification Conference of 1930 held that
roadsteds are part of the territorial sea of the coastal State even if
they extend beyond the general limit of the territorial sea, a view
later concurred with by the International Law Commission and also
incorporated in Art 9 1958 Geneva Convention on the territorial sea
and Art 12 LOSC 1982. The underlying motivation for this view is to
ensure the right of innocent passage7 .
III. Right of access
3. As already mentioned, ports fall within the internal waters of the
coastal State8 . This implies that they are entirely under its
sovereignty and in principle subject to its laws. However, treaty
arrangements can nullify or significantly reduce the right of
sovereignty of the coastal State over its ports. The capitular treaties
are a classic historical example of this. As early as the Middle Ages,
Italian trading cities concluded such conventions with Arab rulers. In
the 18th-19th centuries, these agreements were often used by the
maritime powers with respect to territories in Africa and Asia. In the
early 20th century and especially after World War I, these
6
In the so-called "Main Trends", a working document of the Second Commission of UNCLOS III and
prepared at the end of the 1974 Caracas session (Doc. A/Conf.62/C.2/WP.1), a port is defined as: "any
harbour or roadstead normally used for the loading, unloading or anchoring of ships"(Provision 25,
Formula B par.2).
7
If roadsteds were part of internal waters, there would indeed be no right of innocent passage; this
could cause significant problems for international navigation. See E. SOMERS, International Law of
the Sea, 28.
8
Roadsteds are included in the territorial sea even if they extend beyond the limit of territorial waters.
conventions were denounced or declared null and void9 . They
stipulated that foreign ships and cargoes as well as on board persons
were not subject to local law or jurisdiction. The law of the flag State
remained applicable and jurisdiction was exercised by consuls.

Another important example is the status of free ports. Through

international agreements, these ports are given a special status that
largely removes them from coastal State sovereignty. The provisions
on Danzig, Trieste and Tangiers are typical of this10.

The crucial question on the right of access is whether the coastal

State may deny foreign ships access to its seaports. This question has
repeatedly generated controversy in the law of the sea. A "right" of
access for foreign merchant vessels is accepted by some on
customary law grounds, while firmly rejected by others.

In the first instance, it is appropriate to distinguish between access to

inland sea ports and coastal sea ports.

IV. Inland seaports and coastal seaports

4. Inland ports are ports situated inland on a natural or artificial

waterway that is connected to the sea (Antwerp, Ghent, London,
Amsterdam, Chicago, etc.). If the waterway in question is an
international river, i.e. a river flooding on the territory of two or more
States or forming the border between them and being navigable to
and from the sea, it should be verified whether a special regime is
conventionally provided for this river (e.g. Scheldt, Rhine, Meuse, St
Lawrence ...) and/or the riparian State is a contracting party to the
Barcelona International Waterways Statute of 20 April 1921. This
statute contains a fundamental prohibition of discrimination

9
See E. VAN BOGAERT, Het internationale havenstatuut (The International Port Statute),
Mededelingen van de Marine Academie, 1976-77, 98.
10
Generally C. MIGAZZI, Les zones franches en droit international public, Revue générale de droit
international public 2021, 541-563.
according to flag and declares first and foremost that navigation on
these waterways must be free (art. 3). This obviously implies free
access to the inland ports located along such a waterway, since
otherwise the principle of free navigation remains without meaning 11.
However, if the waterway is not international in character or the
riparian State is not a contracting party to the Barcelona Waterways
Statute, navigation will be based solely on the internal law of the
riparian State. Consequently, where applicable, no right of free
access to inland ports can be claimed.
5. For coastal seaports, the situation is not so simple. An arbitral
award in the dispute between Saudi Arabia and the "Arabian
American Oil Company" (ARAMCO) over the unilateral annulment of
a petroleum transportation concession, stated :
" 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 interests of the State so require" 12.
Evidently this is a clearly erroneous statement, which certainly cannot
be supported by customary law13 .
The existence of a generally applicable customary legal rule in this
regard remains without evidence. For the coastal State, however, the
right of access has a particular importance for its national economy.
11
Cf. the opinion of the Permanent Court of International Justice of 1927 on the jurisdiction of the
European Danube Commission, Ser. B, no. 14, 66 ; also PCIJ 1929, Ser. A, no.23 (The territorial
jurisdiction of the international commission for the river Oder), in L. GREEN, International Law
Through the Cases, London, Stevens & Sons, 1970, 358. With respect to access into the port of
Antwerp, see the Judgment of the Belgian Court of Cassation of 14 June 2012, http://www.cass.be
(17 September 2012), concl. G. Dubrulle. A critical assessment of this judgment in E. SOMERS,
Internationale handel en het toegangs-en doorvaartrecht in havens, Journal for International Trade
and Transport Law 2015/0, 9-40. Further: E.SOMERS, Juridische context van scheepvaartverkeer op
de Westerschelde: oude wijn in nieuwe vaten? In G.GONSAELES and J. COPPENS (eds.), Met have,
goed en schip over de Schelde, Antwerpen, Maklu, 2012.
12
Aramco, Arbitration Tribunal, 23 August 1958; International Law Reports 1963,212; see also LOWE,
A., The Right of Entry into Maritime Ports in International Law, San Diego Law Review 1977, 598-600.
13
See: A. LOWE, The Right of Entry into Maritime Ports in International Law, San Diego Law Review
1977, 600-618; L. DE LA FAYETTE, Access to Ports in International Law, The International Journal of
Marine and Coastal Law 1996, 15-16; R. CHURCHILL, V. LOWE and A .SANDER, The Law of the Sea ,
Manchester University Press, 2022, 113.
Out of economic necessity, most States have opened their ports to
merchant shipping 14. However, if free access has not been stipulated
by treaty law, the coastal State will be able to regulate access to ports
itself15 .
While there is evidently a presumption that seaports are opened to
international maritime trade, there can be no doubt that this
presumption has most certainly not acquired the status of "right" in
customary international law. As a result of the coastal State's basically
unlimited sovereignty over its internal waters, it has absolute control
over access to its ports16 . The 1982 Law of the Sea Convention
implicitly confirms that coastal States have the right to regulate
access to their internal waters (Art 25.2; Art 211.3 and Art 255).
6. The regulation of access to ports relies mainly on conventions . The
first treaty to be cited in this context is the 1923 Geneva International
Statute of Ports.
On the initiative of the League of Nations, a multilateral convention
on the statute of maritime ports was concluded (Geneva, 9 December
1923). In this convention, the contracting parties undertake to deal
with ships of other contracting parties in their seaports in the same
way as their own ships, both as regards access to the port and the use
of the facilities and the levying of duties and taxes (Art. 2). This
fundamental treaty provision is nevertheless subject to a principle of
14
E. VAN BOGAERT, Mededelingen, 99; also G. GIDEL, Le droit international public de la mer, Paris,
Châteauroux, 1932-1934, II, 50: "La règle demeurant en vigueur dans le droit international général
est celle de la simple présomption de l'ouverture des ports aux navires étrangers, mais non celle de
l'obligation d'ouverture des ports à ces navires".
15
Cf. Khedivial Line, SAE v. Seafarers Int. Union among other, US Court of Appeals, 2nd Cir. 4 May
1960, in International Law Reports (hereafter ILR), vol. 31, 137; as an illustration of this jurisdiction
see, e.g., the Belgian Royal Decree 14 August 1984 establishing the minimum requirements to be met
by certain tankers wishing to call at a Belgian port, Belgisch Staatsblad (hereafter BS) 22 September
1984 (this concerns the implementation of two EC Council directives viz. 79/116, OJ L 33, 8 February
1979, 33 and 79/1034, OJ L 315, 11 December 1979, 16; no longer in force). See also Netherlands
Yearbook of International Law 1983, 312.
16
See the judgment of the International Court of Justice of 27 June 1986 in the Nicaragua case, ICJ
Reports 1986, (Nicaragua/U.S.A.), par.213: “It is also by virtue of its sovereignty that the coastal state
may regulate access to its ports”.
reciprocity: coastal States are free to reserve any rights granted to
States that accord them the same treatment. If a contracting party
fails to comply with the treaty provisions vis-à-vis another contracting
party, the latter will no longer have to respect the prohibition of
discrimination.
The provisions of the Statute, in particular the equal treatment of
sea-going vessels, apply to all sea-going vessels, whether they belong
to private persons or public institutions or the State. However, the
Statute does not apply to maritime coasting trade (Art. 9), warships
or vessels performing police or administrative functions, or, in
general, exercising any kind of public authority, or any other vessels
which for the time being are exclusively employed for the purposes
of the Naval, Military or Air Forces of a State. (Art. 13). Nor is it
applicable to fishing vessels or to their catches (Art. 14).

A number of exceptions are explicitly mentioned in the Statute itself.

The Statute does not affect applicable greater facilities granted by
States to each other. Such facilities may also be negotiated for the
future (art. 20). Nor does it alter treaty obligations relating to trade
in narcotics, women and children or patent rights (art. 17).
Exceptionally and for as limited a time as possible, the provisions may
also be derogated from by general or special measures, when the
security or vital interests of the State are threatened (art. 16). This
article applies e.g. to the entry of nuclear vessels17 , or other vessels
that may pose a danger. Even in a state of emergency, such ships may
validly be denied access to a port18.
17
Art. 17 of the Convention on the Liability of Operators of Nuclear Ships (Brussels, 25 May 1962)
confirms the power of a contracting party to deny nuclear vessels access to its ports. The access of
nuclear merchant vessels will be regulated through bilateral negotiations. See e.g. the Belgian-
American agreement of 19 April 1963, concerning the visit of the nuclear vessel "Savannah" to
Belgian ports, BS 18 July 1964; cf. A. DE WILDE, Nucleaire koopvaardijschepen hebben een
internationaal statuut nodig ( Nuclear merchant vessels need international status) Tijdschrift voor
Diplomatie 1975, 132-137. Just like the United States for the NS Savannah, Germany also concluded a
number of treaties for the access of the NS Otto Hahn, e.g. with Liberia, cf. K. HAKAPAA, Marine
Pollution in International Law, Helsinki, 1981, 165.
18
This may cause major problems in distress situations. To remedy this, the idea of designating
appropriate so-called "places of refuge" has been proposed, cf. Fairplay Shipping Weekly 1982, 5; see
also recital (16) of Directive 2002/59/EC of 27 June 2002 for the establishment of a European
Ultimately, it can be argued that the International Port Statute has
most certainly not introduced the right of free access into the law of
the sea19. The right of access is entirely subject to the principle of
reciprocity. Where reciprocity is not withheld between States, the
benefits of the Statute cannot be invoked. The Port Statute regulates
the conditions of access to a seaport rather than the right of access.
The Statute aims at equal treatment of all ships in foreign ports and
not at proclaiming a general right of access. In addition, the
prohibition of flag discrimination also appears to be relative, as
contracting parties may conclude agreements granting certain flags
more facilities than those provided for in the Statute.

7. This explains, in part, the large number of bilateral agreements still

concluded in relation to ports. These agreements confirm the
absence of a generally recognised right of free access as they
explicitly regulate the right of access and equal treatment between
the parties20 . Moreover, such treaties often state that equal
treatment is limited to ports open to trade and navigation. The right
to determine which ports are opened is widely recognised and
confirmed in State practice. This obviously implies that these ports

monitoring, control and information system, OJ L 208, 5.8.2002, p. 10–27. See more in particular the
IMO resolution A 23/Res.949 5 March 2004, (paras 3.12 and 3.13) introducing the concept of ports of
refuge (also infra footnote 44) and the EU Operational Guidelines on Places of Refuge (2015) which
supplement the IMO Guidelines for EU Member States.
19
Cf. R.K. GARDINER, International Law, Pearson Education Ltd, 2003, 408-409
20
Cf. the Navigation Agreements between the BLEU and the USSR of 17 November 1972(BS 28 March
1974), art. 5; between the BLEU and Côte d'Ivoire of 25 November 1977(BS 20 December 1979;
Additional Protocol 28 September 1999, BS 5 June 2002), art. 6; also the Navigation Agreement
between the BLEU and Mali of 7 October 1998(BS 16 May 2002); the Navigation Agreement of 5
March 1981 between Belgium and Zaire(BS 21 October 1987); the Navigation Agreement of 24
February 1976 between the BLEU and Bulgaria( BS 2 February 1982); the Shipping Agreement of 14
September 1979 between the BLEU and the then GDR(BS 15 October 1981); the Agreement of 17
May 1979 between the BLEU and Algeria (BS 19 November 1982); the Agreement of 20 April 1975
between Belgium and the People's Republic of China (BS 24 July 1980); the Agreement of 13 August
1963 between the BLEU and Paraguay (BS 23 February 1967). the BLEU and Senegal (1 December
1982, BS 12 October 2001),Mali (7 August 1984, BS 17 July 1987), Togo (19 October 1984, BS 19
November 1987). They also show that flag discrimination was not completely eliminated. The
inclusion of the MFN clause is a striking example of this; see E. VAN BOGAERT, Mededelingen, 102-
104.
can also be closed 21. Especially in times of international tension,
seaports that are normally open may be closed by the coastal State22.
International case law clearly shows that a State may close its ports in
case of armed conflict, insurrection or for reasons of self-
preservation. This can also be inferred, inter alia, from the provisions
of Articles 14 and 16(3) of the 1958 Geneva convention on the
territorial sea and Article 25(2) and (3) of the 1982 LOSC. Indeed, a
coastal State may suspend passage through its territorial sea if it is
not innocent in nature, in other words poses a danger to the peace,
good order or security of the coastal State. A fortiori, access to ports
may also be refused where appropriate. However, closure of
seaports that are normally open will have to be announced in good
time, failing which the coastal State may be liable for compensation23.
Military ports will, as a rule, be off limits to merchant ships.

8. Moreover, several multilateral conventions confirm, explicitly or

not, the right of the coastal State to ban ships from its internal waters.
It suffices here to refer to the SOLAS Convention (Chapter I), the
1954 OILPOL Convention (Article VIbis,4 1971 amendments), the
Convention on the Liability of Operators of Nuclear Ships (Brussels,
25 May 1962, Article 17), the MARPOL Convention (Article 5(3)),
among others. Art.16 of the Directive 2009/16/EC of the European
Parliament and of the Council of 23 April 2009 on port State control
(recast) provides measures for the refusal of access to ports of the
Member States for certain ships24.

21
This was explicitly included in the Regulation of 22 January 1929 on the Policing of Navigation in
Coastal Waters and Coastal Ports, BS 22 February 1929; the current Coastal Regulations are less
explicit, RD 4 August 1981 containing Police and Navigation Regulations for the Belgian Territorial Sea,
Ports and Beaches of the Belgian Coast, BS 1 September 1981, as amended several times.
22
E. VAN BOGAERT, Mededelingen, 106-110.
23
Cf. the Portendick case, in A. DE LAPRADELLE, and N. POLITIS, Recueil des arbitrages internationaux,
Paris, Pédone, 1905, I, 512 ff..; the case of the port of Buenos Aires, ibidem, II, 637 ff.; the Martini
case, ”RIAA”, X, 667; the case of the Orinoco Steamship Company, in J.B. SCOTT., Les travaux de la
cour permanente d'arbitrage de La Haye, New York, Oxford Univ. Press, 1921, 239 ff. It should be
noted that in the case of closure due to self-preservation, the claim for damages is usually rejected.

24
OJ L 131, 28 May 2009, p. 57–100. Similarly Directive 2002/59/EC establishing a European
monitoring, control and information system of 27 June 2002.
The London Convention for the Facilitation of International Maritime
Traffic (9 April 1965)as amended, is a rather technical convention
whose main purpose is to facilitate maritime traffic by minimising the
procedures, formalities and documents required for entry to, stay in,
and exit from ports by international seagoing vessels . Implicitly, this
convention confirms that coastal States can regulate navigation to
and from their ports.
Art. 23(3) of the U.N. Straddling Fish Stocks Convention 1995 also
provides a regulatory power for coastal States regarding access to
their internal waters:

"States may adopt regulations empowering the relevant national

authorities to prohibit landings and transshipments where it has been
established that the catch has been taken in a manner which
undermines the effectiveness of subregional, regional or global
conservation and management measures on the high seas."25
The 1958 Geneva Convention on the High Seas also includes a basic
provision on access to ports. Based on the principle of freedom of
the high seas, non-coastal States should also be granted free access
to the sea. To this end, coastal States should, in common agreement
with non-coastal States on the basis of reciprocity, grant free passage
and transit over their territory to land-locked States. They should
also permit to vessels flying the flag of a non-coastal State treatment
equal to that allowed to their own vessels, or to the vessels of any
other State, as regards access and use of seaports. Nevertheless, this
provision does not imply a general right of access, as it is applicable
only to so-called "land-locked States".
The fundamental provisions of the Convention on the High Seas are
restated and elaborated in the "Convention on Transit Trade of
25
United Nations Convention on Straddling Fish Stocks and Highly Migratory Fish Stocks, text in
International Legal Materials 1995, 1567(1542); the convention entered into force on 11 December
2001. See: R.G. RAYFUSE, Non-Flag State Enforcement in High Seas Fisheries, Leiden, M. Nijhoff, 2004.
Landlocked States" (New York 8 July 1965, BS 2 June 1970)26 as well as
in Part X of the 1982 LOSC.
9. State practice27 shows, inter alia, that States deny access to their
ports for various reasons. Grounds that have been invoked amount to
protection of public health and safety28 as in the case of ships carrying
explosives or ships carrying dangerous cargoes or still if those on
board have contracted infectious diseases. Measures were also taken
to protect the marine environment as in the OILPOL and MARPOL
conventions29 . Finally, measures were issued for the protection of
navigation in case of substandard ships and ships presenting special
risks (e.g. nuclear ships)30 .
10. A review of legal doctrine also shows that a large majority of the
doctrine firmly supports the view that States can regulate and,
consequently, prohibit access to their internal waters31 .
26
United Nations, Treaty Series , vol. 597, p. 3.
27
See J.B. MOORE, Digest of International Law, Washington, 1906, II, 269-272.
28
Ships that do not possess the “International Ship Security Certificate” can be refused entry into the
ports of the contracting parties of the ISPS Code.
29
Also Canadian Arctic Waters Pollution Prevention Act 1970; Royal Decree (hereafter RD) 14
Augustus 1984 laying down minimum requirements with which certain tankers wishing to call at a
Belgian port must comply, BS 22 September 1984 (this concerns the implementation of two EC
Council Directives namely 79/116, OJ L 33, 8 February 1979, 33 and 79/1034, OJ L 315, 11 December
1979, 16; both directives are no longer in force). Also Regulation (EC) 1726/2003, OJ L 249, 1 on
banning single-hull oil tankers from EU Member States' ports.
30
For an overview of State practice: L. DE LA FAYETTE, Access to Ports in International Law, in The
International Journal of Marine and Coastal Law 1996, 4-9; also G. KASOULIDES, Vessels in Distress.
"Safe Havens" for Crippled Tankers, Marine Policy 1987, 22, note 125; D.P. O’CONNELL, The
International Law of the Sea, Oxford, Clarendon Press, 1982-84, II, 848.
31
See among others the report of the UNCTAD secretariat: Economic Cooperation in Merchant
Shipping. Treatment of Foreign Merchant Vessels in Ports, UN DOC.TD/BC.4 ,9 September 1975.
Generally see: R. CHURCHILL, V. LOWE and A .SANDER, The Law of the Sea , Manchester University
Press, 2022, 112-115; further: G. GIDEL, Le droit international public de la mer, Paris, Chateauroux,
1932-34,50; J.P.A. FRANÇOIS, Handboek van het volkenrecht, Zwolle, Tjeenk Willink,1949,906; H.W.
BRIGGS, The Law of Nations, New York, Appleton Century Crofts, 1952, 348; L.N. HYDEMAN and W.H.
BERMAN, International Control of Nuclear Maritime Activities, Ann Arbor, University of Michigan,
1960, 130-142; M.S. MCDOUGAL and W.T.BURKE, The Public Order of the Oceans ,New Haven and
London, Yale University Press, 1962,93; P. REUTER, Droit international public, Paris, Presses
Universitaires de France, 1976, 312; D.P. O'CONNELL, The International Law of the Sea Oxford,
Clarendon Press, 1984, vol. 2, 848; R.-J. DUPUY and D. VIGNES, Traité du Nouveau Droit de La
Mer ,Paris / Bruxelles, Economica/Bruylant, 1985,780; V.D. DEGAN, Internal Waters, Netherlands
Yearbook of International Law 1986, 3; NGUYEN QUOC DINH, P. DALLIER and A. PELLET, Droit
Notwithstanding previous dissenting views, the Institut de droit
international admitted in a 1957 resolution that foreign vessels could
be refused access to internal waters 32.
By now it has become clear that in the absence of a positive treaty
provision, no right of free access to a foreign seaport can be claimed.
A State, as a sovereign legal entity, can always decide entirely
autonomously whether or not its ports will receive foreign merchant
vessels. Only treaty obligations can limit its powers. In practice,
however, there will be a presumption that international merchant
ports are open to all flags unless explicitly derogated from.
V. Right of access for ships in distress or ships in need of assistance
Much of the legal literature is undaunted in its view that ships in
distress33 have a right of access to a port at all times or under certain
conditions34. However, it is appropriate to subject these assertions to
a somewhat deeper examination.

international public, Paris, LGDJ, 1987,970 ; R.-J. DUPUY and D. VIGNES, A Handbook of the New Law
of the Sea ,Dordrecht, Martinus Nijhoff, 1991, vol. 2, 940; R. BERNHARDT, Encyclopaedia of Public
International Law, Amsterdam/New York/Oxford, North Holland Publishing Company, vol. II, 264; J.
COMBACU and S. SUR, Droit international public, Paris, Montchrestien, 2001,461 ; A. AUST,
Handbook of International Law, Cambridge University Press, 2010, 280; J. KLABBERS, International
Law, Cambridge University Press, 2013, 237; E.J. MOLENAAR , Port and Coastal States, in D.
ROTHWELL, A. OUDE ELFERINK, K. SCOTT and T. STEPHENS (Eds), The Oxford Handbook of the Law of
the Sea, Oxford University Press, 2015, 283-284. Generally see: V. TASIKAS, The Regime of Maritime
Port Access: a Relook at Contemporary International and United States Law, 5 Loy.Mar.L.J. 1(2007);
P. VINCENT, Droit de la mer, Brussel, Larcier, 2008,37.
Contra: C. ROUSSEAU, Droit international public, Paris, Sirey, 1980, IV, 342-343 ; C.J COLOMBOS,
International Law of the Sea, London, Longmans, 1967.
32
See Institut de droit international, Annuaire 1957, II, 474; K. HAKAPAA, Marine Pollution in
International Law, 163-164.
33
On the concept of ships in distress see: A-M. DE ZAYAS, Ships in Distress, in Encyclopaedia of Public
International Law, Amsterdam, Elsevier, 2000, IV, 399; J.E. NOYES, Ships in Distress, in R. WOLFRUM
(ed.), The Max Planck Encyclopaedia of Public International Law, Oxford University Press, 2012, 173-
178.
34
The port State may e.g. require a financial guarantee. Cf. Raad van State (Ned.) 10 April 1995 (ms
Long Lin), Schip en Schade 1995, no 96; E. VAN HOOYDONK, Some Remarks on Financial Securities
Imposed by Public Authorities on Casualty Ships as a Condition for Entry into Ports, in M.
HUYBRECHTS, E. VAN HOOYDONK and C. DIERYCK, Marine Insurance at the Turn of the Millennium,
Antwerp, Intersentia, 2000, vol. 2, 117-136. Only with respect to persons on board: P. VINCENT,
op.cit., 38; A. AUST, op.cit., 280; J. KLABBERS, op.cit., 237.
11. Clearly, a right of access for ships in distress is not explicitly found
in multilateral conventions; not even in the 1923 Port Statute. On the
absence of a specific rule in this Port Statute, contracting parties
considered that this right was absolute and self-evident and therefore
there was no reason to include a positive rule in the treaty 35. In
support of this contention, two statements by members of the
Belgian and Dutch delegations respectively at the 1923 diplomatic
conference are cited36 . However, it does not appear that this was also
the common opinion of the majority of the represented treaty
parties. To conclude solely on the basis of these two statements that
the 1923 diplomatic conference was convinced that the right of
access is absolute and evident seems at least premature. Restrictions
on the right of sovereignty, including access to internal waters and
ports, including ships in distress, cannot be presumed. They must be
clearly evidenced by accepted national or international norms and
these are not at hand37 . On the contrary, the London Salvage 1989
Convention accepts that contracting parties may regulate and decide
on access to ports for ships in distress in the course of salvage
operations(art.11)38 . The Convention does not affect the right of the
35
E. VAN HOOYDONK, ibidem,127.
36
Also in L. LUCCHINI, L. and M. VOELCKEL, Droit de la mer, II, 296.
37
National standards regulating access for ships in distress confirm, inter alia, that there is no general
international standard on which the right of access for ships in distress can be based; see e.g. the
Belgian Act 20 January 1999 for the protection of the marine environment in sea areas under the
jurisdiction of Belgium, BS 12 March 1999 (ed.2). Art. 23.1 does not automatically give the master of
a ship in distress the right to call at a Belgian port; this Act is replaced by the Act 11 December 2022
for the protection of the marine environment and organising marine spatial planning in the Belgian
marine areas BS 16 December 2022, see art.36 and 37 ; further e.g. art. 3 and 9 of the French decree
22 July 1977 and art. 5 of the French decree 6 February 1985, cf. J.P. QUENEUDEC, Chronique du droit
de la mer, Annuaire français de droit international 1985,783-789. For an overview of national
legislation, see CMI Yearbook 2002, 123-125 which clearly shows that states reserve the right to
decide for themselves whether access is granted and, if so, under what conditions. A "Schedule of
casualty experience" prepared by CMI similarly shows that coastal States decide for themselves
whether and under what conditions ships in distress are admitted. This again shows that there is no
(enforceable) right of access for ships in distress de lege lata, CMI Yearbook 2002, 139-142.
38
"A State Party shall, whenever regulating or deciding, upon matters relating to salvage operations
such as admittance to ports of vessels in distress or the provision of facilities to salvors, take into
account the need for co-operation between salvors, other interested parties and public authorities in
order to ensure the efficient and successful performance of salvage operations, for the purpose of
saving life or property in danger as well as preventing damage to the environment in general." The
coastal State to take measures for the protection of the coast against
pollution in accordance with generally recognised principles of
international law, including the right to issue directives for salvage
operations(art.9). These are clear positive legal norms that allow the
coastal State to regulate and therefore, if necessary, deny access to
ships in distress39 . If States are willing to accept as a general norm of
international law that ships in distress are given a right of access to
ports, it seems appropriate to elaborate a multilateral convention to
that effect40 . Without such a convention there is de lege lata no right
of access even for ships in distress, at least not supported on treaty
grounds 41.
12. Is there then perhaps a general customary legal rule giving ships
in distress a right to enter internal waters, i.e. ports? Numerous
authors plainly argue that such a rule is recognised as a norm in
international law. However, it seems that these are rather statements
de lege ferenda since they are in no way supported by arguments de
jure. It is not because authors repeat each other42 that this is
requirement in the OPRC 1990 Convention for the preparation of an "Oil Pollution Response
Contingency Plan" does not in itself imply that ships in distress must be given access to internal
waters. cf. CMI Yearbook 2002, 121.
39

40
See N. GASKELL, The 1989 Salvage Convention and the Lloyd’s Open form (LOF)Salvage Agreement
1990, Tulane Maritime Law Journal 1991,20; E. VAN HOOYDONK, op.cit., 132. In 2005 the Comité
maritime international prepared a draft instrument that was submitted to the IMO Legal Committee
which decided that there was at that time no need for a draft convention on places of refuge. Further
attempts in later years to bring this on the IMO agenda were not successful. See: CMI Yearbook 2003,
2004, 2005 and 2006. The draft instrument went so far to oblige coastal States to allow access for
ships in distress eventually taking into account certain conditions. Generally with respect to places of
refuge: I. VON GADOW-STEPHANI, Der Zugang zur Nothäfen und sonstigen Notliegeplätzen für
Schiffe in Seenot, Berlin, Springer, 2005; E. VAN HOOYDONK, Places of Refuge. International Law and
the CMI Draft Convention, London, Lloyd’s List, 2009; A.P. Morrison, Places of Refuge for Ships in
Distress, Brill/Nijhoff, 2012.
41
Although the 1982 LOSC introduces a general obligation to protect and preserve the marine
environment (Article 192), it is also difficult to assume from this that a general right of access is thus
created for the benefit of ships in distress. Even if a vessel in distress presents a threat to the marine
environment, access to internal waters will not necessarily remedy this. If pollution were to occur, it
would probably not be advisable for it to take place in internal waters. They are, of course, also part
of the marine environment.
42
MCDOUGAL & BURKE, op.cit., 110; NGUYEN QUOC DINH et al., op. cit., 1106; V. LOWE, The United
Kingdom and the Law of the Sea, in T. TREVES, The Law of the Sea. The European Union and Its
Member States, The Hague, Martinus Nijhoff,1997, 524; E. BECKERT and G. BREUER , Öffentliches
necessarily proof of a customary legal norm any more than the ruling
of a national court or an ad hoc arbitration43 .
It is noteworthy that all authors advocating a right of access for ships
in distress rely on -a limited number of- cases that have occurred in
the past. Therefore, while it may seem acceptable that in the 19th,
early 20th century, customary legal grounds could be invoked in this
regard to grant access to ports to ships in distress, this is certainly no
longer the case in the current state of international law. Taking into
account the state of navigation at the time, it is understandable that
on the basis of humanitarian considerations it was attempted to
prioritise a general principle. Ships were much smaller, carried no
inherently dangerous cargoes and posed no threat to the marine
environment of the coastal State whose internal waters they could
call at44. The potential magnitude of risks to coastal States was much
Seerecht, Berlin, W. De Gruyter, 1991, 138; L. DE LA FAYETTE, op.cit.,1; D.P. O'CONNELL, op.cit, II, 627-
629; L. HYDEMAN and W. BERMAN, op.cit., 153-162; K. HAKAPAA, op.cit, 167; L. LUCCHINI and M.
VOELCKEL, op.cit., II, 295-299 who believe that this is "un droit fort ancien" but themselves cite a
number of examples from state practice indicating the opposite; G. KASOULIDES, Vessels in Distress.
"Safe Havens" for Crippled Tankers, Marine Policy 1987, 184; also A. E. CHIRCOP, The Customary Law
of Refuge for Ships in Distress in A.E. CHIRCOP and O LINDEN (Eds), Places of Refuge for Ships:
Emerging Environmental Concerns of a Maritime Custom, 2006, 185-189; L.B. SOHN, K.G. JURAS, J.E.
NOYES & E. FRANCKX, Law of the Sea in a Nutshell, West Publishing, 2010, 187 stating however:”
Current State practice indicates that the right of entrance to ships in distress is not absolute; entrance
may be conditioned or refused…” ; A.P. MORRISON, Places of Refuge for Ships in Distress, Brill/Nijhoff,
2012, 78-126; R. CHURCHILL, V. LOWE and A .SANDER, The Law of the Sea , Manchester University
Press, 2022, 115; Y. TANAKA, The International Law of the Sea, Cambridge University Press, 2023, 105-
107. This author states that “it is debatable whether there is widespread and uniform State practice,
along with opinio juris, which may change the rule at this stage” (p. 106). The view taken by Tanaka is
therefore quite confusing, on the one hand maintaining that there is “a long established rule of
customary international law” whilst on the other hand stating that the necessary State practice to
that end, is lacking seems at least not very consistent; similarly E.J. MOLENAAR, op.cit., 284.
43
Especially in Anglo-American doctrine, the Rebecca Case (1929) is put forward as evidence for the
existence of "the long-established right of entry into a foreign port by vessels in distress", E.D.
BROWN, The International Law of the Sea, Aldershot, Dartmouth,1994, vol. I, 39. For the Rebecca
Case see: R.I.A.A., IV, 444 (2 April 1929). However, this is a decision of the Mexican-American General
Claims Commission dealing with the right to immunity of a ship that has entered a foreign port in
distress; see also: Ann. Dig. 1929-1930,129.
44
According to Assistant Professor Dr. Susanna Münch Miranda from Lisbon Nova University,
Portuguese authorities in the 18th century, obliged Portuguese overseas ports to accept ships in
distress; oral communication at the Congress on the 300 year commemoration of the Ostend
Company, Ostend 23rd November 2023.
more minute in nature and coastal States could deal with them
relatively easily on their own. This is certainly no longer the post-
World War II state of affairs. Tremendous technological development
has led to a significant increase in total tonnage in merchant shipping
and the entry into service of new ship types and larger vessels45 .
Both cargo and bunker fuel can inherently cause serious
(environmental) risks should they end up in the sea. Coastal States
are in many cases no longer able to cope on their own with hazards
arising from a ship emergency. Potentially catastrophic damage to the
coastal marine environment can be caused by oil tankers as well as
ships carrying hazardous cargoes such as nuclear products, toxic
waste or bulk chemicals46 . Under such circumstances, it is not
reasonable to expect that a ship in distress could invoke a right - i.e.
enforceable - to enter a port. In order to avert a serious and
immediate danger to both terrestrial and marine coastal
environments, States may regulate or even prohibit the entry of ships
in distress. Some may base this on the self-help principle47 , possibly
emergency law or the right to self-preservation can also be invoked .
However, even ardent adepts of the right of access for ships in
distress accept that it is not absolute and that a balancing of the
interests of ship and coastal State is necessary. If the interests of the
ship do not outweigh those of the coastal State, access may be
denied48 . In my view, this theory of balancing interests clearly goes in
the right direction but also does not contribute anything to the
45
See among other E. GOLD, World Shipping: a Global Industry in Transition, Ocean Yearbook
vol.15,2001, 271-277.
46
D. DEVINE, Ships in Distress. A Judicial Contribution from the South-Atlantic, Marine Policy 1996,
229.
47
E.g. D. DEVINE, op.cit. ,230.
48
L. HYDEMAN and W. BERMAN, op.cit., 157; M. MCDOUGAL and W. BURKE, op.cit., 110; A. DE ZAYAS,
Ships in Distress, Encyclopedia of Public International Law, Amsterdam, Elsevier,2000, IV, 399; H.
MEIJERS, note under Hoge Raad 7 February 1986 (ms Attican Unity), Nederlandse Jurisprudentie
1986, 1838; R. CHURCHILL, V. LOWE and A .SANDER, op.cit, 115 pointing out that measures must be
taken to save lives before access can be denied; K. HAKAPAA, op.cit., 168; see also Raad van State
(Ned.) 10 April 1995 (ms Long Lin), Schip en Schade 1995, no. 96; Chapter 26 Bonn Agreement
Manual under the Bonn Agreement of 13 September 1983. Also: E. SOMERS, Marine Pollution and
the Right of Entry in Maritime Ports for Ships in Distress, in M. FAURE and HAN LIXIN, Marine
Pollution in China, US and Europe, chapter three, 2010, Kluwer Law International.
formulation of a general right of access for ships in distress.
Consequently, even on the basis of this consideration, it cannot be
concluded that there would be a general rule granting a right of
access to ships in distress49 .
13. Moreover, IMO's Guide Lines 2003 on 'places of refuge' distinctly
mention that if admission is sought by a ship in distress or in need of
assistance to a 'place of refuge' "...there is no obligation for the
coastal State to grant it, but the coastal State should weigh all the
factors and risks in a balance and give shelter whenever reasonably
possible" and further: " In the light of the outcome of the assessment
provided for above, the coastal State should decide to allow or refuse
admittance, coupled where necessary, with practical requirements"50.
Again, therefore, the right of decision lies with the coastal State and
no general right of access is withheld. In the absence of positive law
arguments, including customary legal arguments, it seems inevitable
to conclude that there is no international norm in law from which a
right of access to ports for ships in distress can be derived.
Customary international law results from a general and consistent
practice of States that they follow from a sense of legal obligation. If
such practice is not general and consistent, as is clearly shown in
Contra: E. VAN HOOYDONK, op.cit., 128 who states that: "To close off all seas and ports as soon as
one smells danger, thereby implementing the result of a so-called balance of interests, clearly is not
what international law on ships in distress intends"; also: E. VAN HOOYDONK, The Obligation to offer
a Place of Refuge to a Ship in Distress, Lloyd’s Maritime and Commercial Law Quarterly 2004, 347-
374.
49
The distinction made between situations involving the lives of persons on board and those where
the risk to vessel and/or cargo is purely economic in nature, as made by the Irish High Court of
Admiralty in the M/V Toledo case (1995) cannot be decisive since the persons on board can relatively
easily be rescued through helicopter operations, mentioned by TANAKA, op. cit. 105.
50
A 23/Res.949 5 March 2004, (paras 3.12 and 3.13). The Guidelines are under revision which will be
approved at the 2023 session of the General Assembly. The text of the revision as proposed by the
MSC and the Legal Committee does not change the decision making on granting access to a port of
refuge; the coastal State still finally decides through a so-called national competent authority
whether access is allowed or not: “When permission to access a place of refuge is requested, there is
no obligation for the CA to grant it…”, LEG 110/12/1 23 December 2022, Annex 8. On 25 July 2023
the Fremantle Highway, a burned-out car carrier in the North Sea was towed to a port of refuge cf.
https://www.tradewindsnews.com (10/11/2023)
State practice (see infra), how can it be maintained that there exists
such a rule of customary law nowadays?
14. On the other hand, State practice here too provides a series of
examples where coastal States have refused access of ships in distress
to internal waters in general and to ports in particular on a variety of
grounds . The most recent and salient cases are undoubtedly the
cases of the Erika51 , of the Tampa52, the Prestige53 and the Castor54.
Also the problems encountered by MSC Flaminia after a fire broke out
on board mid July 2012 whilst the ship was on her way in the Atlantic
Ocean from the US port of Charleston towards Antwerp (Belgium),
were illustrative of the unwillingness of several European coastal
States to allow entry into their internal waters and provide a place of
refuge55.
A rather extreme case arose with the Polish general cargo ship
“Stanislas Dubois” in 1981. The ship collided in the North Sea off the

51
This Maltese-flagged tanker was refused entry to Saint Nazaire due to risk of serious marine
pollution after repeatedly declaring it to be in distress. After the crew abandoned the ship, it sank on
14 December 1999. See: J. LE CORRE, Chronique d'un désastre annoncé, Rennes, Ed. Apogée, 2000 ; J.
LE CORRE, Mers noires, Rennes, Ed. Apogée, 2001; O. CACHARD, Un demandeur peut-il obtenir du
droit communautaire ce que le droit maritime lui interdit de demander?, Le droit maritime français
2008, 712-719 ; E. SOMERS and G. GONSAELES, The Consequences of the Sinking of the m/s Erika in
European Waters: towards a Total Loss for International Shipping Law?, 2010 Journal of Maritime
Law and Commerce, 57-83.
52
The MV Tampa, a Norwegian-flagged RoRo and container ship managed to rescue 438 refugees
from an Indonesian wooden ship 158 miles from the Indonesian mainland and 85 miles north of
Australia's Christmas Island on 26 August 2001. Access to the Flying Fish Cove port was denied by the
Australian authorities, although several of the people on board had serious health problems.
Notwithstanding there was a clear emergency on board, the ship was denied entry to the port. The
refugees were eventually transferred to Nauru by an Australian warship. See: Fairplay Shipping
Weekly 8 August 2002; M. WHITE, M.V. Tampa and Christmas Island Incident, August 2001, BIMCO
Review, October 2001.
53
On 13 November 2002, the Prestige, a 26-year-old single-hull oil tanker sailing under the flag of the
Bahamas, with 77,000 tonnes of heavy fuel oil on board, strikes leak off the coast of Galicia. On 19
November, the tanker broke up, sinking, 270 km off the Spanish coast. Thousands of tonnes of heavy
fuel oil spilled into the sea, polluting large parts of the Spanish and French Atlantic coast.
54
Late December 2000-early January 2001, the Castor incident unfolded, resulting in the damaged
fully laden tanker being towed around the Mediterranean Sea for over a month before a place could
be found where a successful lightering operation could be carried out. See:
https://www.imo.org/en/OurWork/Safety/Pages/PlacesOfRefuge.aspx (10/11/2023)
55
Fairplay 9 May 2013.
Dutch island of Texel creating a large hole leading to the flooding of
two cargo holds which contained dangerous goods vulnerable to
explosion. As there was a serious risk of explosion the ship was not
allowed to enter neither any Dutch port, nor any other EC port. After
negotiations, the Dutch authorities ordered the ship to be sunk. She
was finally scuttled at a depth of 72 metres at a position 90 n.m.
north west of Texel on April 9,198156.
It is clear that the decision of a coastal State whether or not to admit
a ship in distress to its ports is a policy decision taken under pressure
of circumstances and weighing interests on an ad hoc basis57 . In this
context, States may unilaterally or in concert (cf. 1983 Bonn
Agreement, as amended) prescribe some practical arrangements for
making such policy decisions58. The Belgian Act of 27 July 2011 on
the competent authority for the accommodation of ships in need of
assistance (transforming the applicable EU Directives) was
deactivated by the Act of 8 May 2019 introducing the Belgian
Maritime Code. Book 2, Title 7, chapter 4 of the Code refers to places
of refuge and provides that the competent authority (the Governor
of the province of West-Flanders) decides on the acceptance of a ship
in a place of refuge (art.2.7.4.7).

15. Particularly in the last decade, some coastal States are confronted
with a multitude of attempts by asylum seekers coming from
overseas in often very poor transport means. In many cases human
rights NGO’s ships resulted in rescuing these people on the high seas
trying to disembark them subsequently in ports nearby. This practice
was and still is frequently occurring in the Mediterranean Sea where
56
See the decision of the President of the Rotterdam tribunal of 5 April 1981 in Schip en Schade
191,94.
57
The importance of a safe haven for ships in distress was recognised by North Sea countries under
the Bonn Agreement of 13 September 1983 on cooperation in combating pollution of the North Sea
by oil and other harmful substances,
58
See e.g. https://www.emsa.europa.eu/we-do/safety/places-of-refuge.html; (10/11/2023) also
European Maritime Safety Agency (EMSA) 5th PoR TTX report 2022. Further Fairplay 14 April 2011,
22, reporting on the possibility for Spanish harbour masters to deny entry into Spanish ports for
foreign flagged ships.
vessels were trying to enter a port in order to land a great number of
asylum seekers. Italian ports59 have been involved in many occasions,
leading sometimes to flat out refusal of the authorities to allow such
ships to enter the port60. Quite often, ships had to be diverted to
other countries which were willing to accept these ships in the end.
(e.g. Spain). Several NGO’s as well as other human rights
organisations alleged that there was a duty for the coastal State to
accept these ships that often found themselves in a difficult situation
given the great numbers of persons on board in often deplorable
condition both physically and mentally. As such, the master of the
ship considered his ship to be in a situation of distress and called
upon the coastal State authorities for a right of entry. Under current
Italian law shipmasters are obliged to call at a port for disembarkation
assigned by the authorities even if such a port can be considerably far
away from the actual place of rescue. According to the Italian
government it establishes clear and precise rules of conduct for
Search and Rescue activities at sea operated by private foreign ships
that make interventions in foreign areas or on the high seas.
As argued before, neither treaty law nor customary international law
requires States to provide such a right of entry and to let these
rescued persons disembark onto their territory61. Although an
assisting ship may serve as a temporary place of safety, there is no
actual duty for States to disembark the persons rescued. In other
words, a State can refuse disembarkation onto its own territory or
make this dependent on certain conditions62.
If States would accept a responsibility to disembark persons in the
long term, this responsibility should definitely not be linked to the

59
In 2022, 105,129 people reached Italy through dangerous sea routes (12/11/2023).
60
See e.g. the fate of the ships Aquarius and Lifeline, involved in rescue operations in the
Mediterranean Sea. In June 2018 the authorities in Italy and Malta refused to give access into their
ports notwithstanding the presence of over 600 migrants on board, RGDIP 2018, 984.
61
J. Coppens and E. Somers , Towards New Rules on Disembarkation of persons Rescued at Sea ?, The
International Journal of Marine and Coastal Law 25 (2010) 377–403.
62
G.S. Goodwin-Gill, The Refugee in International Law , Clarendon Press, Oxford, 1996, 157.
duty to rescue people in distress. Therefore, the closest port that can
be regarded as a place of safety would be the best choice for both the
seafarers and the persons rescued63.
16. The problem of disembarking asylum seekers from ships involved
in search and rescue operations clearly shows a dichotomy between
a moral duty and a legal right. At present, the moral duty to allow
asylum seekers to disembark when in a situation of distress is
overridden by legal rules and regulations emanating from the coastal
State’s sovereignty over its State territory. Disembarkation of persons
—and especially migrants—rescued at sea is certainly a very sensitive
issue, because States simply do not have a legally binding duty to
grant these people access to their territory.
Strictly speaking, NGO ships that are intendedly involved in rescue
operations as in the Mediterranean Sea, are themselves not
necessarily to be considered as ships in distress. A difference can be
made between the ship as a means of transport on the one hand and
some of the persons on board, namely asylum seekers that can be in
distress because of the state they are in. So long as the ship is not
itself in danger of perishing and it is in good condition, than the ship
cannot be considered to be in distress. If the situation on board
becomes dangerous for the proper handling of the ship then of
course a genuine distress situation may arise. In recent practice
however this has not been the case given the good condition of the
rescue vessels involved and the professional actions taken by the
crew.
Ultimately, we can say that there are neither customary nor general
treaty norms within international law that allow concluding that, in
the current state of legal development, a right of access for ships in
distress exists. That such a right may have been asserted in previous
centuries is not denied but, in the absence of applicable treaties,
63
J. Coppens and E. Somers , Towards New Rules on Disembarkation of persons Rescued at Sea ?, The
International Journal of Marine and Coastal Law 25 (2010) , 403.
States are not inclined to concede their sovereign prerogatives .
Moreover, State practice provides clear counter-indications to the
existence of a customary rule of law on the matter.
17. Much of the confusion in legal doctrine seems to result from the
amalgamation of two separate issues, notably the right of access for
ships in distress with the immunity that such ships enjoy in ports once
they have been granted, explicitly or implicitly, access. In the latter
case, however, there is an indisputable rule that has been applied in
both State practice and case law. Ships seeking refuge in the internal
waters of a foreign State as a result of an emergency or force majeure
are not subject to local jurisdiction. Consequently, they enjoy a
privileged position and exemption from the legal provisions normally
applicable to voluntary calls in internal waters, e.g. the rules on
incrimination, arrest, forfeiture, import duties and taxes, etc. Of
course, this does not concern immunity in respect of all local laws
and regulations. Navigation regulations remain perfectly applicable.
The general rule has been repeatedly confirmed in English, French, US
and Canadian case law64 .
Of course, it must be a bona fide emergency or case of force majeure.
Proving a real distress at sea is a factual matter and falls to the party
invoking it65. A definition of force majeure and distress is found in the
commentary on Article 17 of the Harvard Research Draft on Territorial
Waters (1929). It stipulates that distress includes: damage to the hull
or machinery and shortage of fuel or provisions. It is clear that the
cause cannot be attributed to insufficient precautions before the start

64
PH. JESSUP, The Law of Territorial Waters and Maritime Jurisdiction, New York, Jennings Co, 1929,
194-208; C. J. COLOMBOS, op.cit, 329 and the jurisprudence cited there; J. CASTEL, International
Law: Chiefly as Interpreted and Applied in Canada, Toronto, Butterworth,1976, 574ff; RGDIP 1986,
667; also J.E. NOYES, Ships in Distress, in R. WOLFRUM (ed.), The Max Planck Encyclopaedia of Public
International Law, Oxford University Press, 2012, 173-178.
65
See D. DEVINE, op.cit., 234 following a discussion of the case of Merk and Djakimah v. the Queen
(1992), Court of Appeal for St Helena, South Africa. Also J.-U. SCHRODER, Dealing with Risk and
Uncertainty: How to Improve the Basis for Decisions about Granting Refuge to Ships in Need of
Assistance, Ocean Yearbook, 2006, 595-622.
of the voyage66. Force majeure includes mutiny or acts of pirates67. A
similar view can be found in case law68. However, even in an objective
case of necessity or force majeure, the coastal State will not grant
immunity to a ship that has entered its internal waters or ports if it is
itself involved in illegal activities such as piracy, slave69 and human
trafficking, illegal arms trafficking, drug trafficking or smuggling 70 .
VI. Conclusion
18. This contribution is aiming to shed light on a disputed aspect of
major importance for navigation within the law of the sea. The
question whether ships in distress or in need of assistance have a
general right of entry into the internal waters of a coastal State and in
particular in a port of such State, has generally been answered in the
positive by a majority of legal doctrine. This contribution does not
share that view with respect to the present situation in international
navigation. In order to speak of a general right of entry, meaning
therefore an enforceable right, there must exist a convincing rule of
law applicable within the international community of sovereign
States. Such rule could be found in a written source of law, basically in
conventions or compulsory decisions of international organisations
66
"Where a ship is the cause of its own distress it need not expect any jurisdictional immunities", D.
DEVINE, ibidem, 234; the fact that a ship enters a port under its own power is not necessarily
evidence that it would not be in a state of distress, cf. The Rebecca (supra).
67
AJIL 1929, Suppl., 299-300. Also U.S. Coast Guard Marine Safety Manual, Vol VI, chapter 1, in CMI
Yearbook 2002, 146. The SAR Convention of 27 April 1979 clarifies the notion of “Distress phrase” as
“A situation wherein there is a reasonable certainty that a person, a vessel or other craft is
threatened by grave and imminent danger and requires immediate assistance” Annex, Chapter 1,
1.3.13.
68
See e.g. Rex v. Flahaut, Ann. Dig. 1938-1940, 165. Further : The May v. the King, Ann. Dig. 1931-32,
154-156; US v. Sullivan et al., Ann. Dig. 1919-1942 (vol. 11), 127-130; The Eleanor (1809) in K.
SIMMONDS, Cases on the Law of the Sea, New York, Oceana, I, 125; also CASTEL, 574-585; G.
KNIGHT, H. CHIU, and L. SOHN, The International Law of the Sea. Cases, Documents and Readings,
Londen, 1991, 273-276.
69
In a number of cases decided by the Mixed Claims Commission established by the Anglo-American
Treaty of 8 February 1853 on ships involved in slave trade, the United States upheld exemption from
the application of local laws on the liberation of slaves. See the cases of the Comet, the Encounter,
the Enterprise , the Hermosa and the Creole (1855), J.B. MOORE, A Digest of International Law,
Washington, 1906,II, 350-361.
70
See, e.g., the Silver Sea case (20 February 1986). This ship was involved in arms trafficking when it
had to call at the port of Brest due to bad weather conditions, RGDIP 1986, 667-668.
such as e.g. the International Maritime Organisation. At least since
the 20th century such written sources of a legal obligation providing a
right of access for ships in distress do not exist. There is no
multilateral convention available where such a right is upheld, not
even in the Geneva Port Statute of 1923. That is most probably also
the underlying reason why States have regulated navigation and entry
into their ports on a bilateral basis. Actually this is quite reasonable
given the fact that sovereign States do not like to be bound by legal
rules that they have not accepted themselves and they surely refrain
from being legally bound by unilateral decisions of other States. This
contribution has demonstrated that conventions do not provide a
general right of entry for ships in distress or in need of assistance.
19. Of course conventions are not the single source of international
law or of the law of the sea. Eventually a general right of entry for
ships in distress or in need of assistance might be found in
international customary law. A rule of customary international law is
the result of a general and consistent practice of States that they
follow from a sense of legal obligation (opinio juris). Therefore a
general and consistent State practice is a constitutional condition for
the creation of a rule of customary law. Failing such general and
consistent State practice there can be no rule of customary law.
Undoubtedly, during the 18th and 19th century and probably part of
the 20th century there was a convincing State practice to conclude
that, in those days, a general right of entry did exist for ships in
distress. However during the later 20th and 21st century State practice
has dramatically changed course due to overwhelming developments
in navigation endangering the ecological and even economic situation
of coastal States. Present day State practice clearly shows that coastal
States are first and foremost concerned about their own interests and
whenever these are under pressure by ships in distress seeking
shelter into their ports, they either flatly refuse entry or make it
conditional. That shows that States finally decides for themselves
whether or not to allow access for ships in distress. Even the
introduction of places of refuge does not alter the position of coastal
States as far as deciding on providing access or not. An eventual
threat of loss of life of persons on board is nowadays relatively easily
countered by very performant rescue systems , in particular the use
of helicopters.
20. Whether shipping in general and shipowners, crew members or
the entire maritime industry in particular regrets this development, it
does not change anything in the way that coastal States act on this. At
present the only convincing course to take in order to make sure that
there would be a general and enforceable right of entry, would be the
conclusion of a multilateral convention. The initiatives taken by the
CMI in this respect deserve honest appreciation. However, in practice
it has been demonstrated time and again that the international
community of States is not ready to accept such a restriction of its
individual States’ sovereign jurisdiction. So long as there does not
exist an enforceable rule of law obliging coastal States to provide a
right of access to ships in distress, such general right cannot be
invoked against coastal States. Finally this boils down to the fact that
such a right of access depends on the goodwill of coastal States
whether we like it or not.