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The “Magda Maria” and Customary Law at Sea - a case note*

Published online by Cambridge University Press:  07 July 2009

H. Meijers  and
R.C.R. Siekmann
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Extract

On Sunday 26 July 1981, “Radio Paradise” made experimental transmissions in Dutch and intended for reception by the general public in the Netherlands, without having obtained permission from the appropriate Dutch authorities. The transmissions were carried out from a ship off the Dutch coast, outside territorial waters. It was announced that regular broadcasts to the Netherlands would begin shortly afterwards.

Type
Articles
Information
Netherlands Yearbook of International Law , Volume 13 , December 1982 , pp. 143 - 156
Copyright
Copyright © T.M.C. Asser Press 1982

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References

1. Act of 11 January 1904, Stb. 1904 No. 7, Art. 3septies was inserted by the Act of 23 January 1974, Stb. 1974 No. 25, in implementation of the European Agreement of the prevention of broadcasts transmitted from stations outside national territories, Strasbourg, 22 January 1965, Trb. 1965 No. 92.

2. International Convention for the safety of life at sea, London, 17 June 1960, Trb. 1961 No. 84, and London, 1 November 1974, Trb. 1976 No. 157.

3. See supra, n. 1.

4. Aanh. Hand. II 1981 No. 228 p. 443.

5. RvdW 1981 No. 133. The Compania Naviera Panlieve S.A. appealed against this Judgment to the Amsterdam Court of Appeal on 15 September 1981.

6. The owner of the “Magda Maria” appealed against this decision to the Supreme Court. Note: in case giving rise to a complaint of the kind at hand, appeal lies directly to the Supreme Court.

6a. See for the full text infra pp. 381–391.

7. The quoted Article wrongly speaks of ‘inter-regional law’ – what is that? The drafters probably had in mind regional law, in particular the international law in the European “region”. Since this action was concerned with a Panamanian ship, it was to be decided not by European law, but by worldwide international law (the “law of nations”). Therefore, the judgment does not refer to the European Agreement for the prevention of broadcasts transmitted from stations outside national territories (Trb. 1965, No. 92), which any way does not mention seizure or any other enforcement measures. Panama could have, but did not, become a party to this Agreement.

8. The Court apparently assumed that the Netherlands has no “Exclusive Economic Zone” (EEZ); there is no reference to the EEZ concept in the judgment. If the 1981 Draft Convention on the Law of the Sea is followed – as it was by the Court – a coastal State may, under Article 58 (2) of the Draft, apply, inter alia. Article 109 which prohibits “unauthorized broadcasting” on the high seas in the EEZ. An Exclusive Economic Zone can only exist where it has been established by the coastal state, as the Court will have considered, and no such act has been performed by the Netherlands.

8a. . See infra pp. 149

9. For these Radio Regulations, see Trb. 1961 No. 115.

10. For the Convention establishing the International Telecommunication Union, see Trb. 1974 No. 198.

11. Trb. 1959 No. 124.

12. The Judgment continues: “For literature, the Court refers in this connection to Meijers, H., Fasen van volkenrechtsvorming, p. 24 et seqGoogle Scholar. and p. 30 et seq.”. For the English translation of the text referred to by the Court, see 9 NYIL (1978) (“How is International Law Made?”), p. 19 et seq. en p. 23 et seq.

13. See, inter alia, Haucke, , Piratensender auf See (München, 1969), p. 131Google Scholar et seq. and p. 185, and the literature referred to there; Meijers, H., The Nationality of Ships (Nijhoff, The Hague, 1967), p. 317.Google Scholar

14. See supra.

15. Third Conference on the Law of the Sea; Draft Convention on the Law of the Sea, UN/Doc. A/Conf. 62/L. 78. The reference in the fourth section of the quoted EEC proposal to “Article 22 below” was replaced by: “in conformity with Article 110”.

16. For a detailed explanation of this statement, see Meijers, H., Nationality, Chapter V, para. 2 (pp. 309–23)Google Scholar. As fas as “statelessness' is concerned, nothing has been changed by the Conference on the Law of the Sea. The Convention-text merely provides in Article 110 that visit and search of stateless ships is lawful, which in no way prohibits more far-reaching acts (bringing into port and seizure) with respect to this category of ship.

17. For the “Lucky Star” case, see n. 13 supra.

18. For a detailed explanation of this statement, see Meijers, H., Nationality, pp. 179–87Google Scholar. Meijers' discussion of false flags is based on the text of Article 6 (2) of the Convention on the High Seas, of 1958, which is adopted unchanged in the second section of Article 92 of the Convention-text.

19. It appears from the information available that the right to fly a Lebanese flag had been withdrawn by the Lebanese Government before the Danish intervention.

20. Third United Nations Conference on the Law of the Sea, Rules of Procedure (12 July 1974) - UN/Doc. A/Conf. 62/30/Rev. 1.

21. See p. 17 of the UN/Doc. referred to in n. 20 supra. The UN Gen. Assembly recommended the “Rules” at its 2169th meeting on 16 November 1973; Cf., UN Yearbook (1973) p. 42.

22. See para. 6 of the “Introduction” to the Rules of Procedure at p. VIII of UN/Doc. A/Conf. 62/30/Rev. 1.

23. For majority votes, see Rule 39.1. Rule 38 reads: “Each State represented at the Conference shall have one vote”.

24. Article 10 of the Vienna Convention on the Law of Treaties says: “The text of a treaty is established as authentic and definitive: (a) by such procedure as may be provided for in the text or agreed upon by the States participating in its drawing up; (b) failing such procedure, by the signature, signature ad referendum or initialling by the representatives of those States of the text of the treaty or of the Final Act of a conference incorporating the text”.

In the Convention, signature is accepted as a means of establishing the text, ne varietur.

25. Continental Shelf Case, ICJ Reports 1969, p. 43.

26. This term is used in Rule 37 (1) of the Conference Rules of Procedure.

27. If the Convention-text becomes binding treaty law, disputes arising from the application of Article 109 (“Unauthorized broadcasting”) will effectively be submitted to binding international judicial settlement or to international arbitration. See Part XV (“Settlement of Disputes”) of the Draft.

28. A US representative at the Conference, B.H. Oxman, has written: “Any assessment of the benefits and costs of the Convention will have to give considerable weight to the dispute settlement provisions”, “The Third UN Conference on the Law of the Sea: The Ninth Session (1980)”, in 75 AJIL (1981), p. 243.Google Scholar

29. See H. Meijers, “Stages”, passim.

30. Haucke, op.cit., p. 85.

31. According to Haucke, op.cit., p. 132.