MEDVEDYEV AND OTHERS v. FRANCE JUDGMENT
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perspective. The Montego Bay Convention well illustrated the signatory
States’ aim of “cohabitation” in what belonged to all and yet to none, by
strictly defining the conditions in which a State could interfere with another
State’s sovereignty by having a naval vessel inspect a ship flying a foreign
flag. And although Cambodia was not a party to the Vienna Convention, the
agreement which that sovereign State had given by diplomatic note had
been self-sufficient with regard to the principles of public international law
and the law of the sea. The diplomatic note of 7 June 2002 had authorised
the stopping of the ship and all “its consequences”, as confirmed by the
Cambodian authorities in their note of 9 September 2008. In such
circumstances the agreement concerned had provided a legal basis for the
rerouting of the Winner and its crew.
55. The Government submitted in addition that the agreement concerned
had been fully in compliance with the requirements of public international
law. The damage caused by drug trafficking in democratic societies
explained why Article 108 of the Montego Bay Convention of 1982, the
Vienna Convention of 1988 and the Council of Europe Agreement of
31 January 1995 all provided for the requisite cooperation between States to
put a stop to the traffic. As the sea could be a “safe haven” (see Öcalan,
cited above, § 88) for traffickers, international law had provided for the flag
State to be able to delegate its power to combat this type of crime. The
Government further noted that in Rigopoulos v. Spain ((dec.), no. 37388/97,
ECHR 1999-II), the Court had found that the verbal agreement given to
Spain by Panama had been sufficient to make the operations lawful under
public international law.
56. With regard to domestic law, the Government contested the
Chamber’s analysis, pointing out that according to the Court’s case-law it
was first and foremost for the domestic authorities to interpret and apply
their country’s law, especially when, as in this case, what was in question
was not the substance of the law but its scope. They submitted that in any
event the Investigation Division had not based its findings solely on
Article 17 of the Vienna Convention, but also on the general provisions of
Law no. 94-589 of 15 July 1994, which empowered commanders of naval
vessels responsible for surveillance at sea to carry out, or have carried out
“inspection and coercion measures”. They accordingly considered that that
part of the law had provided a legal basis for the measures complained of,
because the ship was suspected of drug trafficking and because it had been
flying no flag, had refused to identify itself and had responded aggressively
by making dangerous manoeuvres.
57. The Government set great store by two factors. First, a State not
party to a convention could, by special agreement, in given circumstances,
consent to the application of provisions of the convention concerned, and
the French courts had thus been able to find that French law should apply.