Sovereign immunity
Definition[edit | edit source]
| Sovereign immunity |
|---|
 The Law of the Sea Convention grants sovereign immunity to specific vessels. The first class of vessels afforded sovereign immunity are warships, defined as “ship[s] belonging to the armed forces of a State bearing the external marks distinguishing such ships of its nationality, under the command of an officer duly commissioned by the government of the State and whose name appears in the appropriate service list or its equivalent, and manned by a crew which is under regular armed forces discipline”.[1] Warships are considered “an expression of the sovereignty of the State whose flag [they] fl[y]”[2], and are afforded immunity in the internal waters of a third State,[3] in the territorial sea of a third State,[4] and on the high seas.[5] Sovereign immunity is also granted to government vessels operated for non-commercial purposes.[6] Vessels possessing sovereign immunity on the high seas “have complete immunity from the jurisdiction of any State other than the flag State”[7]. ‘Complete immunity’ means that sovereign immune vessels cannot be subjected “to any act of civil, criminal, or other jurisdiction of another State”, which includes any enforcement measure by a non-flag State.[8] Notably, this prevents a non-flag State from exercising the right of visit.[9] This complete immunity is applicable in the territorial waters of a coastal State, subject to the requirements that a sovereign immune vessel must comply with the coastal State’s regulations concerning passage through its waters[10], and that the flag State of the immune vessel must bear responsibility for any damage that arises from its failure to comply with such regulations.[11] Sovereign immunity is also maintained within a foreign State’s internal waters[12] subject to diplomatic clearance, and within archipelagic waters.[13] Any interference with cyber infrastructure on board a vessel that possesses sovereign immunity constitutes a violation of international law.[14] In this context, the notion of interference includes any activity that damages or significantly impairs the operation of the cyber infrastructure in question.[15] Sovereign immunity is not absolute and can cease to apply as between States that are parties to an international armed conflict.[16] |
Appendixes[edit | edit source]
See also[edit | edit source]
Notes and references[edit | edit source]
- ↑ Law of the Sea Convention, Part VII, Art 29.
- ↑ The “Ara Libertad” Case (Argentina v. Ghana) (2012) ITLOS 20, para 94.
- ↑ The “Ara Libertad” Case (Argentina v. Ghana) (2012) ITLOS 20, para 95.
- ↑ Law of the Sea Convention, Part VII, Art 32.
- ↑ Law of the Sea Convention, Part VII, Art 95.
- ↑ Law of the Sea Convention, Part VII, Art 96.
- ↑ Law of the Sea Convention, Part VII, Art 95-96.
- ↑ Wolff Heintschel von Heinegg, ‘Warships’ (2015) in Rüdiger Wolfrum (ed) Max Planck Encyclopedia of Public International Law (OUP 2008-, updated October 2015).
- ↑ Law of the Sea Convention, Part VII, Art 110(1) (excepting ships ‘entitled to complete immunity’).
- ↑ Law of the Sea Convention, Part VII, Art 30.
- ↑ Law of the Sea Convention, Part VII, Art 31.
- ↑ Wolff Heintschel von Heinegg, ‘Warships’ (2015) in Rüdiger Wolfrum (ed) Max Planck Encyclopedia of Public International Law (OUP 2008-, updated October 2015).
- ↑ Donald Rothwell and Tim Stephens, The International Law of the Sea (Bloomsbury 2010).
- ↑ Tallinn Manual 2.0, rule 5; Michael Schmitt ‘Below the Threshold Cyber Operations: The Countermeasures Response Option and International Law’ (2014) 54 Virginia Journal of International Law 697.
- ↑ Ibid.
- ↑ Tallinn Manual 2.0, commentary to rule 5, para 6.