jurisdiction of foreign ships

8/2/2019 Jurisdiction of Foreign Ships

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COASTAL STATES

JURISDICTION AND

CONTROL OVER FOREIGNFLAG SHIPS

V. K. Gupta12th April 2012


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BRIEF OVERVIEW

1. A few definitions; (Criminal; Civil; Penal; Legislative; Investigative;Adjudicative)

2.

Theories of International CriminalJurisdiction (Especially of Extra Territorial Jurisdictionnot founded onTreaties / UNCLOS ; WhetherJUSTdepends on power of State exercising it)

3.

UNCLOStreaty obligations and rights ofState Parties

4. Questions?


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DEFINITONS -I

1. CRIME /CRIMINAL: Acts / omissions constitutinginsult to public welfare / contemporary moralswhich is PUNISHABLE ONLY BY THE STATE

2. PENAL: Involving / pertaining to punishmentONLY for PRESCRIBED offences

3. CIVIL DISPUTES: Concern wrong committed by

one party on another which is not a crime. Usuallyconcern money disputes, specific performance ordeclaration of rights. May arise out of contract orotherwise.


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DEFINITONS -II

JURISDICTION: States power to exerciseauthority over persons within or without its

territory:

1. LEGISLATIVE: Make laws (within const.

limits)

2.

INVESTIGATIVE: includes arrest, detention,search etc.

3. ADJUCATIVE: To hear and decide;

4. ENFORCEMENT: Investigate; Arrest; Punish


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FIVE THEORIESFOUNDINGCRIMINAL JURISDICTION - I

I. TERRITORIAL JURISDICTION (ALL crime is local in nature)1. Right to control & protect territorya function of Sovereignty;

2. No surprise for the perpetrator;

3. Proximity to place, evidence, witnesses;

4. Better understanding of conflict;

5. If concurrent jurisdiction then no priority between competingjurisdictions;

6. Law applies regardless of nationality of accused (S. 2IPC);7. SECTION 2 Of IPC: Punishment of offences committed within India- Every person shall be liable to

punishment under this Code and not otherwise for every act or omission contrary to the provisionsthereof,of which, he shall be guilty within India

8. HOWEVER, both States have jurisdiction when act committed in territoryof one State has adverse effect in territory of another (Subjective /Objectiveterritoriality or the EffectsPrinciple)

(Concurrent jurisdictions; The Lotus & Lockerbie cases)


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FIVE THEORIESFOUNDINGCRIMINAL JURISDICTION - II

II. NATIONALITY

1. Oldest basisKings had people beforeterritory;

2. States right to control behavior of owncitizens;

3. CASES: (a: Emperor Kanishka; b: Maersk Dubai; c:Taiwan Trawler)

4. States right to determine who are itsnationals (complicated when dualcitizenship)CASE OF LORD HAW HAW


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FIVE THEORIESFOUNDINGCRIMINAL JURISDICTION - III

III. PASSIVE NATIONALITY / PERSOANLITY

(Based on States duty to protect its citizens even when abroad )

1. Crime committed abroad;2. Perpetrator not a citizen

3. But victim a citizen of State claiming

jurisdiction;CASES: i)Mr. Cutting; ii) S.S. Lotus; USA v. Benitez; iii)Aichelle Lauro;

iv)USA v. Yunis / Jordanian Airlner; v) Indian Chief Officer in China

Sea; vi) Cruise Liners & FBI


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FIVE THEORIESFOUNDINGCRIMINAL JURISDICTION - IV

IV. PROTECTIVE PRINCIPLE

1. Crime committed abroad;

2. Neither offender nor victim a national;3. Security or interests of State effected by

crime committed abroadCASES: i) USA v. Benitez; ii) Adolf Eichmann -- Capture & Trial


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FIVE THEORIESFOUNDINGCRIMINAL JURISDICTION - V

V. UNIVERSAL JURISDICTION

1. Crime committed abroad;

2. Neither offender nor victim a national;

3. Security or interests of State also not effected by crimecommitted abroad

4. Jurisdiction claimed on basis crime so serious as to be of

universal concern

CONVENTIONS & CASES: i) 1948 Genocide Convention; ii) 1949 GenevaConvention ON GRAVE BREACHES IN INTERNATIONAL LAW; iii)

Torture convention (1984) ; iv) Augusto Pinochet


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UNCLOS 1982INTERNAL WATERSI

Considered assimilated to terrestrial territoryhence

exclusive sovereignty.

MERCHANT SHIPS:

1. Exclusive competence over criminal acts;

2. No right of innocent passage(Art. 8.2);

3. Jurisdiction over navigation, fiscal, customs and

sanitary matters;4. However, no interference in internal civil disputes

except if otherwise requested (by Master etc.).


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INTERNAL WATERSII

WAR AND GOVT. SHIPS

1. Art. 32 --Exempt from Coastal States Civil Jurisdiction - subject to:

Art. 30: Non compliance with laws, State may ask war ship to leave;

Art. 31:Responsibility of flag State for damage caused by warship);

2. No interference if criminal act exclusively between crew-members: When offence committed on board vessel;

If offence committed within conduct of public affairs;

If the delinquent reaches the vessel;

In cases of collision, warships immune from seizure;

3. Each State has regulations regarding the duration of stay, the number ofwarships permitted at any given time.


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TERRITORIAL WATERSI

1. S. 3 of Territorial Waters Act & Art. 2 of UNCLOSextend Sovereignty to Territorial Waters;

2. Principle limitation on sovereigntyright of

innocent passage- (subject to legislative control in eight areas);3. Coastal State duty to warn others of KNOWN

dangers to navigation (Corfu Channel case).

4. No levy of chargesexcept for services (Pilotage

through Bosporus and Marmara);5. Right to temporarily suspend innocent passage (1987

-- Iran suspended Hormuzpretext Naval Exercises)


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CORFU CHANNEL

Corfu Channel not an International Strait any longer because of extension of

limits where High Sea begins and definitions in Arts. 34 & 37


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TERRITORIAL WATERSII

CRIMINAL JURISDICTION

(Merchant Ships)

1. Arrest and investigation NORMALLY

permissible if security / good order of own

State effected (However, seeMaerskDubai & M.C. Ruby)

2. OR if assistance requested by Master,Owner or Accredited Diplomatic Agent;

3. OR if involves narcotics traffic;


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TERRITORIAL WATERSIII

CRIMINAL JURISDICTION

(War Ships)

1. Flag State responsible for Warships, if coastal State

suffers any loss or damage due non-compliance

with the national / international laws (Art. 31);

2. If Warship fails to comply with regulations / act as

directed, coastal State may require it to leave its

territorial sea immediately (Art. 32);


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CONTIGUOUS ZONE

Rights of the Coastal State

1. Perhaps an obsolete concept;

2. Part of the EEZ;

3. Coastal State has the right to PREVENT or

PUNISH infringement of customs, fiscal,immigration or sanitary laws within

territorial sea.


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EXCLUSIVE ECONOMIC ZONE-I

Rights of Coastal State & of Foreign States

1. In the EEZ, ..rights and jurisdiction of the coastalState and the rights and freedoms of other Statesare governed by the relevant provisions of this

Convention (Art 55);

2. Broadly, Foreign States enjoy all the freedoms thatthey do on the High Seasand freely engage in all

non economic activities. They also have thefreedom to lay pipe-lines etc.


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EXCLUSIVE ECONOMIC ZONE-II

Rights of Coastal State & of Foreign States

3. Coastal State has right to explore, exploit,conserve, and manage all natural resources, andproduce energy from water, currents and winds

subject to rights of other States.

4. Artificial Islands do not have the status of naturalislandsthus no territorial sea of their own.

However, Coastal State may establish safety zonesaround artificial islands /installations for safety bothof navigation and of the artificial islands /installations.


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HIGH SEAS-I

1. Freedom, equality and common heritage of man arethe principles underlying the concept of the highseasHence all States have equal rightsPROVIDED enjoyed with due regard to rights of

others. [The 1962 QUARNATINE of Cuba]

2. High Seas reserved for peaceful purposes only andno State may subject any part of the high seas to

its sovereignty;

3. Hence every State has RIGHTS and also DUTIES;


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HIGH SEAS -II

1. The duties are: Granting nationality to its ships and ensuretheir safe operation; Penal responsibility of crew in the eventof collision; Require Masters of its ships to render

assistance; EnfPrevent and punish transportation of Slaves;Prevent and punish piracy and Co-operate in suppressingtraffic in drugs. [Allondra Rainbow]

2. The rights are: Freedom of navigation; Scientific Research;

Pipelines and Artificial Islands; Right to fish (subject torestrictions); Right to intervene if own environmentthreatened; Right to seize vessels engaged in slavery, piracyand drug traffic;


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HIGH SEAS-III

1. UNCLOS provides that: There MUST a GENUINE LINK between vessel & State;

Vessels may fly the flag of only one State at any given time and besubject its EXCLUSIVEjurisdiction

2. In case of collision and incidents of navigation, penal ordisciplinary proceedings only by the State of which theconcerned person is a national (Art. 97);

3. Duty to co-operate with repression of Piracy and traffic inslavery, drugs and illicit broadcasting. Hence right of warships to seize pirate ships.


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THANK YOU!!

QUESTIONS??

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