Jurisdiction Over Vessels

Nationality of Vessels Problem of Registration of Convenience or lack of

registration. All states have the right to register ships.

UNCLOS art. 90. The nationality of a ship is regulated by arts. 91 and 92. Note the Genuine .Link requirement in art. 91.

What is a genuine link? What can a state do if it suspects that a ship flying the flag of State A has no genuine link with State A? Revisit this question after reading The Saiga Case pps.218-234.

Prohibited Activities on the High Seas Prohibited Activities on the High Seas

Read UNCLOS arts. 86-89, 95-110. Art. 97 Read UNCLOS arts. 86-89, 95-110. Art. 97 effectively reverseseffectively reverses The Lotus Case The Lotus Case (France (France v. Turkey) P.C.I.J. (1927) which ruled that at v. Turkey) P.C.I.J. (1927) which ruled that at that time there was no rule of international that time there was no rule of international law which prohibited Turkey from asserting law which prohibited Turkey from asserting jurisdiction over the French officer in charge jurisdiction over the French officer in charge of a French ship which collided with a of a French ship which collided with a Turkish ship on the high seas. (The Turkish Turkish ship on the high seas. (The Turkish ship sank and eight Turkish sailor and ship sank and eight Turkish sailor and passengers were drowned). passengers were drowned).

Prohibited Activities on the High Seas Prohibited Activities on the High Seas continued continued

Certain activities are prohibited on the HS, such as transportation Certain activities are prohibited on the HS, such as transportation of slaves art. 99; piracy arts. 100-107 (note limited definition of of slaves art. 99; piracy arts. 100-107 (note limited definition of piracy art. 101); traffic in drugs art. 108; unauthorized piracy art. 101); traffic in drugs art. 108; unauthorized broadcasting art. 109; sailing an unregistered (stateless) vessel broadcasting art. 109; sailing an unregistered (stateless) vessel art. 92. States may seize pirate ships or pirate aircraft arts. 105, art. 92. States may seize pirate ships or pirate aircraft arts. 105, 107. There is a broad basis for the assertion of jurisdiction over 107. There is a broad basis for the assertion of jurisdiction over pirate broadcasters from the HS, art. 109. For drugs, art 108 only pirate broadcasters from the HS, art. 109. For drugs, art 108 only provides that the flag state may request the cooperation of other provides that the flag state may request the cooperation of other states to suppress trafficking. A “right of visit” for non-flag state states to suppress trafficking. A “right of visit” for non-flag state war ships is provided for in art. 110 in certain circumstances war ships is provided for in art. 110 in certain circumstances (piracy, slave trade, unauthorized broadcasting, ship without (piracy, slave trade, unauthorized broadcasting, ship without nationality or ship with the same nationality as the visiting ship) nationality or ship with the same nationality as the visiting ship) but it is not clear what rights the inspected ship has if its but it is not clear what rights the inspected ship has if its suspicions prove well founded. Can the visiting ship arrest the suspicions prove well founded. Can the visiting ship arrest the vessel and crew and take them back to the visiting ship’s home vessel and crew and take them back to the visiting ship’s home port for prosecution? For what crimes could the arrested ship and port for prosecution? For what crimes could the arrested ship and crew be proscrew be prosecuted?ecuted?

U. S. v. GarciaU. S. v. GarciaU.S. Ct of Appeals 2006U.S. Ct of Appeals 2006

For what crimes had the two defendants been For what crimes had the two defendants been convicted? Where were these crimes committed? convicted? Where were these crimes committed? Where were the defendants arrested? What Where were the defendants arrested? What connection did the defendants, their crimes, or the connection did the defendants, their crimes, or the vessel in which they were sailing have with the vessel in which they were sailing have with the U.S.?U.S.?

What basis of jurisdiction (territorial, nationality, What basis of jurisdiction (territorial, nationality, passive personality, protective or universal) did the passive personality, protective or universal) did the court find justified the U.S. statute which court find justified the U.S. statute which permitted the arrest and trial of the defendants? permitted the arrest and trial of the defendants?

A Coastal State’s Jurisdiction over A Coastal State’s Jurisdiction over Foreign VesselsForeign Vessels

In Ports and Internal Waters: In Ports and Internal Waters: States have the right States have the right to assert jurisdiction over foreign ships in their ports and to assert jurisdiction over foreign ships in their ports and internal waters but often they would rather have the state of internal waters but often they would rather have the state of registration deal with the matter unless it “disturbs the peace registration deal with the matter unless it “disturbs the peace of the port.” What would disturb that “peace”?of the port.” What would disturb that “peace”?

Wildenhus’ CaseWildenhus’ Case, 120 U.S. 1 (1887), 120 U.S. 1 (1887) Why was WildenhusWhy was Wildenhus, , a Belgian national, who allegedly a Belgian national, who allegedly

committed a crime on a Belgian registered ship, subject to committed a crime on a Belgian registered ship, subject to US jurisdiction? Do you think the inhabitants of Jersey City US jurisdiction? Do you think the inhabitants of Jersey City were particularly disturbed by these events? If not, what were particularly disturbed by these events? If not, what method of treaty interpretation was the US court using?method of treaty interpretation was the US court using?

A Coastal State`s Jurisdiction over Foreign Ships In its Territorial Sea

We have already noted a foreign ship’s rights to innocent passage through the territorial sea. Note the limitations on a coastal state’s criminal jurisdiction over foreign ships passing through the territorial sea. UNCLOS art. 27, and the limitations on asserting civil jurisdiction in the territorial sea over foreign ships. art. 28.

The Right of Hot PursuitThe Right of Hot Pursuit Normally foreign registered vessels are not subject to the coastal state’s Normally foreign registered vessels are not subject to the coastal state’s

powers of arrest except in the few circumstances that we have studied, but powers of arrest except in the few circumstances that we have studied, but the right of hot pursuit varies this rule in limited circumstances and allows the the right of hot pursuit varies this rule in limited circumstances and allows the coastal state’s police vessels (in the US, the Coast Guard) to chase foreign coastal state’s police vessels (in the US, the Coast Guard) to chase foreign vessels even over the high seas and arrest them, provided the detailed vessels even over the high seas and arrest them, provided the detailed

requirements of UNCLOS art. 111 have been met.requirements of UNCLOS art. 111 have been met. Read UNCLOS art. Read UNCLOS art. 111111

Note: 1) The fugitive ship must have violated the laws applicable Note: 1) The fugitive ship must have violated the laws applicable to the pursuing state’s internal waters or coastal zones (Territorial to the pursuing state’s internal waters or coastal zones (Territorial Sea, Contiguous Zone, Exclusive Economic Zone or Continental Sea, Contiguous Zone, Exclusive Economic Zone or Continental Shelf). 2) The chase must start when the fugitive ship is located Shelf). 2) The chase must start when the fugitive ship is located in the zone where it had violated the laws of the coastal state. 3) in the zone where it had violated the laws of the coastal state. 3) The chase must not be interrupted. 4) The pursuing state must The chase must not be interrupted. 4) The pursuing state must give an auditory or visual signal to the fugitive ship to stop. give an auditory or visual signal to the fugitive ship to stop.

The Saiga Case The Saiga Case (St. Vincent and the (St. Vincent and the Grenadines v. Guinea) 1999 ITLOS No.2Grenadines v. Guinea) 1999 ITLOS No.2

Map of West AfricaMap of West Africa

Map of GuineaMap of Guinea

The Saiga Case The Saiga Case continued continued

What actions gave rise to this case? What actions gave rise to this case? What persuaded the Tribunal that the nationality of the What persuaded the Tribunal that the nationality of the Saiga Saiga was was

St. V & G?St. V & G? Why did the Tribunal conclude that Guinea could not refuse to Why did the Tribunal conclude that Guinea could not refuse to

recognize the right of the recognize the right of the Saiga Saiga to fly the flag of St. V. & G. even if to fly the flag of St. V. & G. even if there had been no genuine link between the ship and St. V & G?there had been no genuine link between the ship and St. V & G?

Guinea argued that “necessity” permitted her to extend her Guinea argued that “necessity” permitted her to extend her customs zone to the EEZ. What did she mean? Why was her customs zone to the EEZ. What did she mean? Why was her argument not successful? Does the Tribunal seem to suggest that argument not successful? Does the Tribunal seem to suggest that customs laws can be enforced in the Contiguous Zone? Is this customs laws can be enforced in the Contiguous Zone? Is this correct? correct?

The Court permitted St V & G to represent the claims of all The Court permitted St V & G to represent the claims of all persons with an interest in the persons with an interest in the Saiga,Saiga, including the crew, even including the crew, even though none of them was a national of St. V & G. Why?though none of them was a national of St. V & G. Why?

Saiga CaseSaiga Case continued continued

Why was Guinea’s claim to have exercised the right of hot Why was Guinea’s claim to have exercised the right of hot pursuit of the pursuit of the Saiga Saiga rejected? rejected?

Why was Guinea’s use of force to arrest the Why was Guinea’s use of force to arrest the SaigaSaiga and the and the crew considered illegal?crew considered illegal?

The Tribunal had ordered the prompt release (art. 73(2) & The Tribunal had ordered the prompt release (art. 73(2) & 292) of the ship on Dec 4, 1997 but the ship was not 292) of the ship on Dec 4, 1997 but the ship was not released until Feb. 28, 1998. Why was this delay not released until Feb. 28, 1998. Why was this delay not considered a violation of the judgment?considered a violation of the judgment?

Guinea was required to pay reparations for injury to the Guinea was required to pay reparations for injury to the crew, damages to the ship, and financial losses of the ship crew, damages to the ship, and financial losses of the ship owners and cargo owners. What reparations did St. V & G owners and cargo owners. What reparations did St. V & G receive? receive?

Fishing on the High SeasFishing on the High SeasConservation and Management of Living Resources Conservation and Management of Living Resources

The high seas are open to the ships of all states, The high seas are open to the ships of all states, UNCLOS art. 87(1). Fishing, which is open to all UNCLOS art. 87(1). Fishing, which is open to all states on the high seas, is now subject to the states on the high seas, is now subject to the obligation to practice management and obligation to practice management and conservation of the resources of the high seas, conservation of the resources of the high seas, arts. 116-120. Certain species of fish and sea arts. 116-120. Certain species of fish and sea mammals are also given special protections, arts. mammals are also given special protections, arts. 63(2); 64; 65; 66; 67. There are also many bi-63(2); 64; 65; 66; 67. There are also many bi-lateral, regional and multi-lateral treaties dealing lateral, regional and multi-lateral treaties dealing with various aspects of conservation.with various aspects of conservation.

Problem p. 236Problem p. 236

Please read the problem on p. 236 and Please read the problem on p. 236 and answer questions 1 and 2 on pps. 236-237.answer questions 1 and 2 on pps. 236-237.