II
Conditions on Entry of Foreign-Flag Vessels
into US Ports to Promote Maritime Security
William D. Baumgartner and John T. Oliver*
Executive Summary
One of the most important engines driving global economic development
and progress in recent years is the freedom to engage in seaborne trade
throughout the world. Relatively unhindered access to the world's ports is avitally
important component of the recent story of global economic success. At the same
time, the grave threats that international terrorists and rogue States pose to global
order give rise to overriding maritime security concerns among port States, factors
which argue strongly against amaritime open-door policy. Other vital concerns,
including illegal immigration, drug trafficking, unsafe oil tankers, illegal fishing
and other threats to the marine environment, and violation of customs and trade
laws, are also prompting port States to take actions that impose conditions on port
entry, to exercise greater jurisdiction in port and even to restrict traditional free-
doms of navigation in coastal waters.
As ageneral rule, international law presumes that the ports of every State should
be open to all commercial vessels. However, if aState considers that one or more
important interests require closure, necessitate imposing conditions on entry or
exit, or dictate the exercise of greater jurisdiction over foreign vessels in port,
*Rear Admiral William D. Baumgartner, US Coast Guard and Captain John T. Oliver, JAGC,
United States Navy (Ret.).
Conditions on Entry of Foreign-Flag Vessels into US Ports
international law generally permits the port State to do so. Aport State may restrict
the port entry of all foreign vessels, subject only to any rights of entry clearly
granted under an applicable treaty and those vessels in distress due to force majeure.
At the same time, international law presumes that the port State will restrict access
to foreign commercial vessels or impose sanctions upon those that enter port, even
those designed to promote important maritime goals, which are reasonably related
to ensuring the safe, secure and appropriate entry or departure of the vessel on the
occasion in question.
As afundamental policy goal, all States must cooperate to develop and imple-
ment efficient and effective conditions on port entry to ensure the security of the
port State and the international commercial system. Unreasonably restrictive con-
ditions would have adeleterious effect on global trade and the world's economy.
Ineffective conditions on entry, such as faulty procedures to screen ships and their
cargoes, could result in asecurity breakdown and adevastating terrorist attack on a
port city. Such adisaster would render virtually inconsequential the debate over re-
strictions on port entry to achieve political, environmental, navigational safety, law
enforcement or other worthwhile goals. Even so, international lawyers and policy-
makers in the United States and elsewhere must seek to ensure that access to the
ports of the world is fundamentally free, and restricted only on conditions directly,
effectively and reasonably related to the significant interests of the port State and
the world community at large.
This article discusses general principles of international and domestic law gov-
erning the condition of port entry as abasis for regulating foreign vessels entering
ports, with an emphasis on maritime security. It also considers the policy conse-
quences of imposing legally permissible restrictions or requirements that could
have the practical effect of infringing unreasonably on maritime commerce, or
which would lead to concerns in the international community and which might re-
sult in diplomatic protests and political objections. The goal of the article is to de-
velop an analytical structure that would encourage arational review of any
proposed conditions on entry to ports to help ensure that any such requirements
are legal, acceptable, reasonable and wise. In apost-9/11 world that remains de-
pendent on international trade for economic prosperity, achieving an effective,
balanced, legal and workable port-entry regime is avitally important goal.
/. Introduction and Competing Policy Interests
As ageneral rule, international law presumes that the ports of every State should be
open to all commercial vessels seeking to call on them. As Professors McDougal
and Burke observed forty-five years ago: "The chief function of ports for the coastal
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William D. Baumgartner and John T. Oliver
state is in provision of cheap and easy access to the oceans and to the rest of the
world [T]he availability of good harbors . . . remains apriceless national asset." 1
Every modern State has ageneral obligation to engage in commercial intercourse
with other States and, absent an important reason, none should deny foreign com-
mercial vessels reciprocal access to its ports.2
In amuch-quoted (yet often- criticized) statement, an arbitral tribunal observed
in the Aramco case in 1958, "According to agreat 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."3In his widely respected
treatise, Dr. C.J. Colombos wrote that "in time of peace, commercial ports must be
left open to international traffic," and that the "liberty of access to ports granted to
foreign vessels implies their right to load and unload their cargoes; embark and dis-
embark their passengers."4The Third Restatement of the Foreign Relations Law of
the United States summarizes the legal principle as follows: "In general, maritime
ports are open to foreign ships on condition of reciprocity, . . . but the coastal State
may temporarily suspend access in exceptional cases for imperative reasons "5
At the same time, each port State has the sovereign right to deny entry and to es-
tablish reasonable conditions related to access to its internal waters, harbors,
roadsteads and ports. 6Indeed, apart from certain pronouncements, there is little
actual support for the broad statement that ports can only be closed for "vital inter-
ests" or "imperative reasons" as afundamental principle of customary interna-
tional law.7The 1982 United Nations Convention on the Law of the Sea (1982 LOS
Convention) 8"contains no restriction on the right of astate to establish port entry
requirements ...."9Article 25, entitled "Rights of protection of the coastal State,"
provides: "In the case of ships proceeding to internal waters or acall at aport facil-
ity outside internal waters, the coastal State ...has the right to take the necessary
steps to prevent any breach of the conditions to which admission of those ships to
internal waters or such acall is subject." 10 While the United States signed the "Part XI
Agreement," which incorporates almost all of the 1982 LOS Conventions in 1994,
the United States Senate has not yet ratified or acceded to it. Even so, the United
States has long considered the navigation-related principles contained in the 1982
LOS Convention to reflect customary international law, binding on all States. 1 ]
After carefully examining the relevant authorities cited in support of such a
right-of-port-entry principle in the Aramco case, Professor A.V. Lowe concluded
that international law does not so severely restrict the authority of aport State to
close aport or impose conditions on entry. 12 He convincingly distinguished be-
tween aright of entry and a. presumption of entry, concluding that "the ports of a
State which are designated for international trade are, in the absence of express
provisions to the contrary made by aport State, presumed to be open to the
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