1 COASTAL STATES’ JURISDICTION AND CONTROL OVER FOREIGN FLAG SHIPS V. K. Gupta 12 th April 2012

2 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. UNCLOS – treaty obligations and rights of State Parties 4. Questions?

3 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.

4 DEFINITONS -II JURISDICTION: State’s power to exercise authority 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

5 FIVE THEORIES FOUNDING CRIMINAL JURISDICTION - I I. TERRITORIAL JURISDICTION (ALL crime is local in nature) 1. Right to control & protect territory – a 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 competing jurisdictions; 6. Law applies regardless of nationality of accused (S. 2 – IPC); 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 provisions thereof, of which, he shall be guilty within India 8. 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; T he Lotus & Lockerbie cases)

6 PCIJ’s – OBSERVATION IN S. S. LOTUS 1. 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 2. 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”

7 FIVE THEORIES FOUNDING CRIMINAL JURISDICTION - II II. NATIONALITY 1. Oldest basis – Kings had people before territory; 2. State’s right to control behavior of own citizens; 3. CASES: (a: Emperor Kanishka; b: Maersk Dubai; c:Taiwan Trawler) 4. State’s right to determine who are its nationals (complicated when dual citizenship) – CASE OF LORD HAW HAW

8 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

9 FIVE THEORIES FOUNDING CRIMINAL 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 abroad CASES: i) USA v. Benitez; ii) Adolf Eichmann -- Capture & Trial

10 FIVE THEORIES FOUNDING CRIMINAL 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 crime committed abroad 4. 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

11 UNCLOS 1982 INTERNAL WATERS – I Considered assimilated to terrestrial territory – hence exclusive sovereignty. MERCHANT SHIPS: Exclusive competence over criminal acts; No right of innocent passage – (Art. 8.2); Jurisdiction over navigation, fiscal, customs and sanitary matters; However, no interference in internal civil disputes except if otherwise requested (by Master etc.).

12 INTERNAL WATERS – II WAR AND GOVT. SHIPS 1. Art 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. 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 of warships permitted at any given time.

13 TERRITORIAL WATERS – I 1. S. 3 of Territorial Waters Act & Art. 2 of UNCLOS extend Sovereignty to Territorial Waters; 2. Principle limitation on sovereignty – right 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 charges – except for services ( Pilotage through Bosporus and Marmara ); 5. Right to temporarily suspend innocent passage ( Iran suspended Hormuz – pretext Naval Exercises )

14 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

15 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;

16 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);

17 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.

18 EXCLUSIVE ECONOMIC ZONE-I Rights of Coastal State & of Foreign States 1. 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); 2. 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.

19 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.

20 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;

21 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;

22 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 be subject its EXCLUSIVE jurisdiction 2. 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); 3. 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.

23

24 THANK YOU!! QUESTIONS??