Jurisdiction for crimes committed at sea

Here is an interesting piece which I lifted from the website of Australian parliament  (https://www.aph.gov.au)   with respect to crimes committed at sea. I just replaced Australia with the word State.

Enforcement jurisdiction is the ability of a country to legally arrest, try, or convict  an individual for a breach of its laws.

Crimes committed at sea present a ‘dynamic legal scenario’ where international law recognizes a multitude of domestic jurisdictions existing concurrently. At all times, a ship is subject to the domestic laws of the country in which it is registered, but it can also be within the territorial jurisdiction of another country whilst transiting its waters and in its ports, and thereby subject to that second country’s laws. Further, where a citizen is involved in a criminal offence, either as an alleged perpetrator or as a victim, their country of citizenship is recognized under international law as also having jurisdiction to investigate and prosecute the crime. A criminal act committed on board will therefore often lead to potentially competing jurisdictional claims

Enforcement jurisdiction under international law

A country will only be entitled to prosecute a crime (exercising enforcement jurisdiction) if it has recognized  grounds to claim jurisdiction over the event in international law, and its domestic law expressly asserts that jurisdiction.

As a matter of general international law, a country may invoke jurisdiction – and apply its domestic laws and enforce sanctions for criminal conduct – in a variety of circumstances, including:

a.           - where criminal conduct occurs within their territory (territorial principle);

b.       -     where one of their citizens is involved (for example, as either a victim or perpetrator) in the crime (nationality principle and the passive personality principle);

c.              where the conduct is so heinous and so widely condemned that all nations proscribe and punish its occurrence (for example, piracy, genocide and hostage taking) (universal principle);

d.            where the criminal conduct has a significantly adverse impact on its national security or governmental process (protective principle).

United Nations Convention on the Law of the Sea 1982 (UNCLOS)

The international rules and principles governing the regulation of ocean space are captured by UNCLOS. UNCLOS accords countries with specific jurisdictional zones and corresponding rights in ocean space adjacent to their territory. Territorial jurisdiction operates like concentric circles, ranging from full territorial sovereignty within internal waters, to almost no sovereign rights on the high seas. These maritime zones are measured from the Territorial Sea Baseline (TSB), the low-water line along the coast.

Under UNCLOS, the zones in which a state  can exercise its territorial jurisdiction can be classified in the following order (with diminishing capacity to enforce domestic law the further out from the TSB):

a.        Internal waters (all waters landward of the TSB);

b.       Territorial sea (12 nautical miles (nm) from the TSB)

c.       Contiguous zone (from 12nm to 24nm from the TSB);

d.       Exclusive economic zone (no further than 200nm from the TSB);

e.       Continental shelf; and

f.        High seas.

High seas, or ‘international waters’, are ‘open to all States, whether coastal or land-locked’. International waters are considered to be outside the territorial jurisdiction of any country. However, in limited circumstances, the state  may exercise extra-territorial jurisdiction.

Territorial jurisdiction

 There are two categories of territorial jurisdiction that would allow a country to enforce its criminal laws against an alleged criminal act committed whilst at sea: Port State jurisdiction and Coastal State jurisdiction. Jurisdiction beyond these two categories – in the ‘contiguous zone’ and the ‘exclusive economic zone’ – is severely limited.

Port state jurisdiction

 If a criminal act occurred when the ship is in internal waters (all waters landward of the TSB) having visited a port or about to visit a port, or when the ship has departed the port and is now in the territorial sea of the state(12nm from the TSB), then the state can claim jurisdiction over the alleged criminal offence, provided that the relevant criminal legislation expresses its extra-territorial application.

Coastal state jurisdiction

Under limited circumstances, a coastal State may exercise its territorial jurisdiction if the ship is not visiting a port of that State but is travelling through its territorial sea (out to 12 nm from the TSB).

 UNCLOS provides that a State may only exercise this type of jurisdiction where:

1.       - The ‘consequences’ of the crime extends to the coastal State;

2.       - Is of a kind to disturb the peace of the State or the good order of the State’s territorial sea; 

 I     - if the assistance of the State is requested by the Master of the Ship; or

3.       - The matter involves the specific case of the illicit traffic of narcotic drugs.

Jurisdiction based on the nationality of the accused or victim

A  state    may claim jurisdiction under general international law where its  citizen is either an accused or a victim of the alleged crime. These are understood as the nationality principle and the passive personality principle respectively. International law provides that when a criminal act is committed by its citizen, the latter’s  state has the power to prosecute that citizen according to its domestic laws no matter where the crime took place The passive personality principle provides for the state  to prosecute crimes committed against its own citizens outside its territory under certain circumstances.

Flag state jurisdiction

Under UNCLOS,  the flag state (the country in which the ship is registered) has primary responsibility over its ship, including criminal jurisdiction, even when the ship is outside the flag state’s territorial waters. A general principle is that the internal operation of a ship which is regulated by the laws of a foreign state on an ongoing basis, as ships move around the world and the general law that the flag state has primacy of jurisdiction on the high seas.

However, given that vessels are generally flagged in distant states, flag states’ ability to play an active role in investigations and/or prosecutions can be extremely limited.