Opinion of Advocate General Tesauro delivered on 31 March 1992

1 Original language: Italian.

2 OJ 1986 L 288, p. 1.

3 My italics.

4 OJ 1982 L 378, p. 25.

5 OJ 1986 L 376, p. 7.

6 See the 1958 Geneva Convention on the High Seas, in particular Articles 2 and 6.

7 See the judgment of 7 September 1910 in the Anglo-American case concerning fishing in the northwest Atlantic: UNRIAA, XI, p. 167 et seq.

8 OJ 1987 L 207, p. 1.

9 PICJ, judgment of 7 November 1927, A Series, No 10 p. 25 et seq.

10 In triat regard it should be pointed out that in its judgment in Lotus, the Permanent Court nevertheless reaffirmed the principle according to which apart from certain special cases which are defined by international law, vessels on the high seas are subject to no authority except that of the State whose flag they fly.

11 Judgment of 8 September 1905, Permanent Arbitration Court, Great Britain v France (the Muscat Dhows Case), UNRIAA, XI. 92 et seq.

12 Judgment of 5 January 1935, UNRIAA, III, 1617 et scq.

13 ICJ Opinion of 8 June 1960. Repons 1960, p. 169: ICJ Mémoires, Case on the composition of the Maritime Safety Committee of the IMCO, p. 23.

14 See in particular Articles 58 and 73 of the Montego Bay Convention which must be considered to reflect international customary law.

15 In this regard, it is perhaps worth emphasizing that Portugal's proposal, made at the 1958 Conference, that innocent passage should in general be linked to observance of the cgislation of the coastal State, was rejected (United Nations' Conference on the Law of the Sea, Official Documents, vol. III, Doc. C.1/L.26, p. 236).

16 Bulletin de Lois, 1806, No 126, p. 602 et seq. The subsequent national case-law in this field shows that the principle laid down by the French Council of State has been broadly accepted and applied. See, for example, the national decisions reported in the American Journal of International Law, 1929, Suppl., No 23, p. 323 et seq.; and, more recently, the judgment of 7 February 1974 of the District Court, Naples (Giurisprudenza Italiana, 1974, II, p. 513 et seq.).

17 1953 U. S., 345, 571.

18 Annuaire de l'IDI, 1957, p. 487.

19 Particularly revealing in that regard are the protest notes sent to the United States Government by all the countries concerned (see the American Journal of International Law, 1929, Suppl., cited above, p. 309 et seq.); in those notes it was emphasized in particular that the jurisdiction of the port State should not extend beyond restricting acts which might disturb public order (Belgium) and that it was not lawful to prohibit the transport of alcohol not intended for importation into the United State (Denmark).

20 On that point see Quadri, Diritto Internazionale Pubblico, Naples 1968, p. 744, and Le Navi Private nel Diritto Internazionale, Milan 1935, p. 95; Jessup, The Law of Territorial Waters and Maritime Jurisdiction, New York, 1927, p. 77 et seq.

21 See Article 32 of the draft articles of the International Law Commission on the international responsibility of States, which defines distress as a situation of extreme danger in which the person who has committed the breach of an obligation under international law finds himself when that person has no other means of saving his own life or the lives of those in his care (see in the UN Annuaire de la Commission du Droit International, 1979, II, Part II, p. 149).

22 See on all the literature O'Connell, The International Law of the Sea, Oxford 1984, volume II, p. 853 et seq.

23 See, for example, the precedents cited by De Lapradelle, Politis, Recueil des Arbitrages Internationaux, Paris 1905, I, p. 686 et seq.; and Gidei, Le Droit International Public de la Mer, 1981, vol. II, p. 89 et seq.; finally, more recently, the judgments of 22 April and 9 May 1990 of the Spanish Supreme Court (Contencioso-Administrativo, Sala 3a, Repertońo de Jurisprudencia Aranzade, Nos 3328 and 3807 respectively).