COASTAL STATES’
JURISDICTION AND CONTROL
OVER FOREIGN FLAG SHIPS
V. K. Gupta
12th April 2012
1
BRIEF OVERVIEW
1.
A few definitions; (Criminal; Civil; Penal; Legislative; Investigative;
Adjudicative)
2.
Theories of International Criminal
Jurisdiction (Especially of Extra Territorial Jurisdiction – not founded on
Treaties / UNCLOS ; Whether JUST depends on power of State exercising it)
3.
4.
UNCLOS – treaty obligations and rights of
State Parties
Questions?
2
DEFINITONS -I
1.
CRIME /CRIMINAL: Acts / omissions constituting
insult to public welfare / contemporary morals
which is PUNISHABLE ONLY BY THE STATE
2.
PENAL: Involving / pertaining to punishment
ONLY for PRESCRIBED offences
3.
CIVIL DISPUTES: Concern wrong committed by
one party on another which is not a crime. Usually
concern money disputes, specific performance or
declaration of rights. May arise out of contract or
otherwise.
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DEFINITONS -II
JURISDICTION: State’s power to exercise
authority over persons within or without its
territory:
1.
2.
3.
4.
LEGISLATIVE: Make laws (within const. limits)
INVESTIGATIVE: includes arrest, detention,
search etc.
ADJUCATIVE: To hear and decide;
ENFORCEMENT: Investigate; Arrest; Punish
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FIVE THEORIES FOUNDING
CRIMINAL JURISDICTION - I
I. TERRITORIAL JURISDICTION (ALL crime is local in nature)
1.
2.
3.
4.
5.
6.
7.
8.
Right to control & protect territory – a function of Sovereignty;
No surprise for the perpetrator;
Proximity to place, evidence, witnesses;
Better understanding of conflict;
If concurrent jurisdiction – then no priority between competing
jurisdictions;
Law applies regardless of nationality of accused (S. 2 – IPC);
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 provisions
thereof, of which, he shall be guilty within India
HOWEVER, both States have jurisdiction when act committed in territory
of one State has adverse effect in territory of another (Subjective /
Objective territoriality” or the “Effects Principle”)
(Concurrent jurisdictions; The Lotus & Lockerbie cases)
5
PCIJ’s – OBSERVATION IN S. S.
LOTUS
1.
2.
Far from laying down a general prohibition to the effect that
States may not extend the application of their laws and the
jurisdiction of their courts to persons, property and acts
outside their territory, international law leaves them in this
respect a wide measure of discretion which is only limited in
certain cases by prohibitive rules; as regards other cases,
every State remains free to adopt the principles which it
regards as best and most suitable
S. 4(2) OF IPC titled “Extension of Code to extra
territorial offences” and applies to “.. any offence
committed by any person on any ship or aircraft registered
in India wherever it may be”
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FIVE THEORIES FOUNDING
1.
2.
3.
4.
CRIMINAL JURISDICTION - II
II. NATIONALITY
Oldest basis – Kings had people before
territory;
State’s right to control behavior of own
citizens;
CASES: (a: Emperor Kanishka; b: Maersk Dubai; c:Taiwan Trawler)
State’s right to determine who are its
nationals (complicated when dual
citizenship) – CASE OF LORD HAW HAW
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FIVE THEORIES FOUNDING
CRIMINAL JURISDICTION - III
III. PASSIVE NATIONALITY / PERSOANLITY
(Based on State’s 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 THEORIES FOUNDING
CRIMINAL JURISDICTION - IV
1.
2.
3.
IV. PROTECTIVE PRINCIPLE
Crime committed abroad;
Neither offender nor victim a national;
Security or interests of State effected by
crime committed abroad
CASES: i) USA v. Benitez; ii) Adolf Eichmann -- Capture & Trial
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FIVE THEORIES FOUNDING
CRIMINAL JURISDICTION - V
V. UNIVERSAL JURISDICTION
1.
2.
3.
4.
Crime committed abroad;
Neither offender nor victim a national;
Security or interests of State also not effected by crime
committed abroad
Jurisdiction claimed on basis – crime so serious as to be of
universal concern
CONVENTIONS & CASES: i) 1948 Genocide Convention; ii) 1949 Geneva
Convention ON GRAVE BREACHES IN INTERNATIONAL LAW; iii)
Torture convention (1984) ; iv) Augusto Pinochet
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UNCLOS 1982
INTERNAL WATERS – I
Considered assimilated to terrestrial territory – hence
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 WATERS – II
WAR AND GOVT. SHIPS
1.
Art. 32 --Exempt from Coastal State’s 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.




3.
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;
Each State has regulations regarding the duration of stay, the number of
warships permitted at any given time.
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TERRITORIAL WATERS – I
1.
2.
3.
4.
5.
S. 3 of Territorial Waters Act & Art. 2 of UNCLOS
extend Sovereignty to Territorial Waters;
Principle limitation on sovereignty – right of
innocent passage- (subject to legislative control in eight areas);
Coastal State duty to warn others of KNOWN
dangers to navigation (Corfu Channel case).
No levy of charges – except for services (Pilotage
through Bosporus and Marmara);
Right to temporarily suspend innocent passage (1987
-- Iran suspended Hormuz – pretext 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 WATERS – II
CRIMINAL JURISDICTION
(Merchant Ships)
1.
Arrest and investigation NORMALLY
permissible if security / good order of own
State effected (However, see – Maersk
Dubai & 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 WATERS – III
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.
2.
In the EEZ, “..rights and jurisdiction of the coastal
State and the rights and freedoms of other States
are governed by the relevant provisions of this
Convention” (Art 55);
Broadly, Foreign States enjoy all the freedoms that
they do on the High Seas – and freely engage in all
non economic activities. They also have the
freedom 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, and
produce energy from water, currents and winds –
subject to rights of other States.
4.
Artificial Islands do not have the status of natural
islands – thus no territorial sea of their own.
However, Coastal State may establish safety zones
around artificial islands /installations for safety both
of navigation and of the artificial islands /
installations.
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HIGH SEAS-I
1.
Freedom, equality and common heritage of man are
the principles underlying the concept of the high
seas – Hence all States have equal rights
PROVIDED enjoyed with due regard to rights of
others. [The 1962 “QUARNATINE” of Cuba]
2.
High Seas reserved for peaceful purposes only and
no 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 ensure
their safe operation; Penal responsibility of crew in the event
of collision; Require Masters of its ships to render
assistance; EnfPrevent and punish transportation of Slaves;
Prevent and punish piracy and Co-operate in suppressing
traffic in drugs. [Allondra Rainbow]
2.
The rights are: Freedom of navigation; Scientific Research;
Pipelines and Artificial Islands; Right to fish (subject to
restrictions); Right to intervene if own environment
threatened; Right to seize vessels engaged in slavery, piracy
and drug traffic;
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HIGH SEAS-III
UNCLOS provides that:
1.


2.
3.
There MUST a GENUINE LINK between vessel & State;
Vessels may fly the flag of only one State at any given time and be
subject its EXCLUSIVE jurisdiction
In case of collision and “incidents of navigation”, penal or
disciplinary proceedings only by the State of which the
concerned person is a national (Art. 97);
Duty to co-operate with repression of Piracy and traffic in
slavery, drugs and illicit broadcasting. Hence right of war
ships to seize pirate ships.
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THANK YOU!!
QUESTIONS??
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