MARITIME INTERNATIONAL LAW Part 6

THE RIGHTS AND DUTIES OF STATES:

 For parts 1-5 scroll down

 Nation states, then, are the authors, actors under, and subjects of International Law. The rights and duties of states are:

Equality:

 Regardless of the size of its territory or population , each state enjoys equal access to international courts and organs of arbitration. Equality also means an equal voice relative to the the creation , codification, or restriction of rights and duties of states. Equality also refers to independence in its domestic affairs. A state may generally rely on its sovereignty in dealing with its own nationals. However, states that act in a manner to shock international standards of humanity invite intervention.

 The right of independence in domestic affairs is tempered by international standards of individual human rights.  Genocide, "ethnic cleansing", and the dispossession of groups within a state invite response by the international community by intervention.

Independence in Foreign Affairs

 A state may decide for itself the type and extent of diplomatic relations it engages in with other states. The existence of an isolated state like Japan before Admiral Perry's visit is almost unthinkable today. It is entirely up to the individual state to determine its own foreign affairs. Each state has the inherent right to enter into treaties. the only limit on this right of soverignity is that the state may not enter a treaty whose provisions are contrary to International Law or violate treaties the state is bound to follow.

Continued Existence and Self Defense:

 The law-abiding state is entitled to continued existence. This implies the right of self defense.

   Self defense is not restricted to merely repelling attack. Other actions such as an arms build up in response to similar actions by an unfriendly sovereign are inherent in the right of self defense. However, "preventative war" is illegal. This must be carefully considered by states considering "preemptive strikes". The differences between "preventative war" and a "preemptive strike" are real. A state must make its case before and after the event.

Diplomatic and Consular Roles: 

 All sovereign states have the "right of legation"

  The right of legation refers to a state's right to send representatives to attend to their interests in other states, and to receive comparable representatives of other states. In the ancient world, legations or diplomatic missions were exchanged at times. The practice we observe in the modern world of permanent legations in foreign countries is of relatively recent vintage. It was not a very widespread practice until the latter years of the 19th century. Today it is a virtually indispensable norm.

 Under the right of legation a state may exchange a variety of representatives. The representatives most commonly referred to in this context are diplomatic agents and consuls. 

 Diplomatic agents form the personnel of the diplomatic mission. The functions of the diplomatic missions include:

-Representing the sending state in the receiving state

-Protecting the sending state's interest

-Negotiating with the government of the receiving state

-Lawfully observing and reporting conditions in the receiving state

-Promoting friendly relations.

By contrast consuls are not diplomatic agents. Consuls are agents in the interest of the sending state's commerce, industry, and navigation. Consular agents need not be citizens of the sending or authorizing state. In a number of U.S. ports "honorary consuls" are local attorneys.

 United States Naval officers and Coast Guard officers may be called upon to perform consular functions in foreign ports when there is no other U.S. consular agent.

 Military and naval officers may also serves as military attaches. As such they are part of the diplomatic mission. The primary duty of the military attache is the lawful collection of information of military value. Additionally, he or she may have ceremonial or honorary duties assigned by t he head of mission. The military attache occasionally may be charged with protecting the rights of U.S. servicemen subjected to trial by a foreign court. Such situations are usually the subject of "status of forces' agreements.

 To a large extent , the military attache and his staff may enjoy the privileges and immunities of diplomatic agents. The privileges and immunities of diplomatic agents are much more extensive than the privileges and immunities normally extended to other military personnel  on foreign soil under "Status of Forces" agreements.

The privileges and immunities of diplomatic agents include:

Freedom of Transit: the right to transit the territory of a third party to reach the nation wher ethe mission is located.

Inviolability of Person: protection from personal assault, interference or arrest.

Inviolability of Domicile: protection of their residence from search and seizure.

Jurisdictional Immunities: protection from civil suits, witness duties, and criminal prosecution.

Exemption from taxes and customs duties.

  The privileges and immunities of diplomatic agents apply without exception to the Chief of Mission. Generally the mission staff and their families are entitled to the same immunities as the Chief of Mission; however, practices vary from state to state and are largely based on reciprocity.

 By contrast, consular officers with commercial duties are usually guided in their mission not by traditional diplomatic functions recognized in International Law but by the domestic law of the sending state. generally, the exchange of consuls is provided for in a bilateral treaty of commerce and navigation or a bilateral consular treaty or convention.

 By U.S.domestic law, our consuls are authorized to receive the protests and declarations of ship masters, crews, passengers, and merchants who are U.S. citizens.  U.S. consuls abroad are also charged with the care of American merchant ships stranded in their district and the relief of distressed American merchant seamen. To this end, U.S. consular officers, including naval officers acting in that capacity, may require masters of American merchant ships to return such seamen to the U.S. at no charge though the seaman may be required to work during passage. Consular officers, including naval officers acting in that capacity , may require U.s. masters of U.S. Merchant ships sold abroad to pay the crew's passage back to the United States. Consular officers, including naval officers acting in that capacity, are vested with the usual powers of a Notary Public.

 It is important that junior naval and Coast Guard officers be familiar with consular duties because the Senior Officer Present Afloat (SOPA) may act as a consular officer when a regular consular officer is not present. This power is most often exercised in its notarial functions for a warship's own crew members with problems that require the authentication of documents. The most junior officer may find himself SOPA on a warship during peace time port visits if liable to duty as in-port Officer of the Deck.

 An exemplary senior yeoman afloat will keep a formulary of  typical U.S. notorial forms of attestation , bills of sale, powers of attorney, and affidavit formats to fulfill these needs. the notarial authority of commissioned officers is also recognized by statute in a number of U.S. states. This can provide a great savings, morale boost and convenience for crewmen.

 Crew morale and emergency considerations aside, the SOPA occasionally may have to perform the commercial functions of a consular agent. This is especially true when working closely with merchant -manned sea lift forces. Naval officers are well -advised to acquaint themselves with the guidelines for consular officers found in the U.S. State Department's FOREIGN AFFAIRS MANUAL.

CONCLUSION:

 In a maritime context, sovereignty is a primary concept of International law. It is the authority to impose custom duties and entrance and clearance requirements for merchant ships. Sovereignty is the underlying principle guiding the the privileges and immunities of warships and the duties and obligations of merchant ships. The naval professional is charged with projecting, protecting, and defending the concept of sovereignty of his own and allied nations and protecting the world's commons.

To be continued : Next the laws of territory and the commons


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