© Springer-Verlag Berlin Heidelberg 2015Jürgen Basedow, Ulrich Magnus and Rüdiger Wolfrum (eds.)The Hamburg Lectures on Maritime Affairs 2011-2013Hamburg Studies on Maritime AffairsInternational Max Planck Research School for Maritime Affairs at the University of Hamburg2810.1007/978-3-642-55104-8_6
Jurisdiction of States over Persons at Sea: Principles, Issues, Consequences
School of Law, University of Glasgow, Glasgow, UK
University of Milano-Bicocca, Milan, Italy
This paper was written while the author was a visitor at the Max Planck Institute for Comparative and International Private Law under the academic exchange scheme with the University of Oxford. Research for this article was funded by the European Commission under action FP7-PEOPLE-2009-IEF. This article reflects only the author’s views.
It is a fact that States increasingly interact with people who are at sea. The reasons are manifold and include the expansion of sea uses, the constant increase in the number of people at sea and the development of technologies that materially allow States to control activities far off from their coasts.
In addition to these reasons, normative changes in the law of the sea have also been instrumental. The exercise of jurisdiction over vessels, once the prerogative of the flag State, is now often attributed to other States, in addition to the State of the flag. The extension of coastal States’ jurisdiction, now codified in the 1982 United Nations Convention on the Law of the Sea (UNCLOS), has allowed coastal States to enforce their rights concerning the exploitation of marine resources, the conduct of marine scientific research and the protection of the environment from 12 to 200 nautical miles from their coasts. Global threats, such as drugs trafficking, piracy and armed robbery at sea and trafficking in weapons of mass destruction, have required States to intervene proactively in order to prevent and control these activities. The increased use of some sea routes by migrants and asylum seekers poses complex obligations to act on States which want to prevent unauthorised entry into their territories and at the same time must abide by basic human rights obligations, including the prohibition of refoulement and the obligation to save life at sea.1
In all these cases and many besides, it is paramount for both States and people involved to know with certainty when jurisdiction can be validly exercised. Enforcement action, in particular, has often led to the interaction of States and people at sea, and the difficulties that have stemmed from such interaction have formed the object of cases submitted to international courts and tribunals. The International Tribunal for the Law of the Sea (ITLOS) has been called upon more than once to order the prompt release of the master and crew of vessels arrested by coastal States, and human rights tribunals, such as the European Court of Human Rights (ECtHR), are called upon to evaluate arrest on the high seas and its compatibility with safeguards provided under human rights treaties.2 Finally, and in a broader perspective, the analysis and discussion of jurisdiction at sea, an area where often there is no territorial basis for the exercise of State powers, may shed light on aspects which are of relevance on land. It should not come as a surprise that human rights courts have made recourse to the notion of jurisdiction contained in law of the sea rules in order to determine the applicability of human rights obligations.3
This article proposes to sketch the legal framework concerning jurisdiction of States over people at sea and to address some critical issues emerging from such examination. After briefly illustrating the complexities of jurisdiction at sea, the chapter will set out the basic principles and rules for determining which State has jurisdiction over persons at sea. This examination will concern rules of public international law allocating jurisdiction among States and will not deal with the jurisdiction of domestic courts to hear cases, except as far as this is a consequence of rules of public international law, nor with issues of solving conflicts of jurisdiction, these being settled by private international law.4 Building on these principles, it will address some critical issues that need to be explored, pointing towards fields where a doctrinal elaboration or a legislative intervention would be desirable. Finally, and since establishing jurisdiction is just the prelude to further rights or obligations, it will briefly present, by way of conclusion, some considerations on the consequences that the existence of jurisdiction has for States.
II. A Complex Jurisdictional Framework
A discussion of jurisdiction at sea needs first to address two preliminary issues: the absence of a generally accepted legal definition of the term ‘jurisdiction’ under public international law and the complex jurisdictional framework that applies at sea.
For the purposes of this paper, ‘jurisdiction’ will be considered to mean the power, which stems directly from sovereignty, to create, apply and enforce rules.5 Jurisdiction can be distinguished according to its type and its basis. There are three types of jurisdiction: legislative (prescriptive), enforcement and adjudicative jurisdiction. Prescriptive jurisdiction is the power to create legally binding rules. Enforcement jurisdiction is the power to enforce these rules and to punish conduct in violation of them. Adjudicative jurisdiction is the power to adjudicate disputes concerning legal rules. The second distinction concerns the principles that provide a basis of jurisdiction. The territorial principle attributes jurisdiction to a State over persons located and activities taking place in its territory. The personal principle attributes jurisdiction to a State over persons that have its nationality, even when these persons are in the territory of another State or in an area over which no State exercises sovereignty.6 The passive personality principle permits States to regulate activities that negatively impact on their nationals. The protective principle permits a State to exercise its jurisdiction in cases when an activity threatens the essential interests of that State. Finally, the universal principle allows States to exercise their jurisdiction with respect to specific acts disregarding location and nationality.7
Further complexities are proper to the legal regime of the sea, which differentiate it from land. Under traditional international law, there is usually one State that has exclusive and general jurisdiction on land: the territorial State. As opposed to this, at sea the distribution of powers and duties among States is based on a dual scheme: territoriality, which varies according to the zone considered, and functionality, which considers the different situations that may request a State to exercise its jurisdiction.8 The UNCLOS thus divides the sea into maritime zones, but it also contains parts dealing with, among others, jurisdiction in respect to navigation, exploitation of living and non-living resources, marine scientific research, and prevention of pollution of the marine environment. As a consequence, jurisdiction at sea is often functional (and thus limited), rather than general.9 Furthermore, it is rarely exclusive and very often the jurisdiction of two or more States coexists, as in the case of the flag State and the coastal State in the latter’s coastal zones. Finally, jurisdiction at sea is not always complete, i.e. does not always demonstrate all three elements that comprise the notion of jurisdiction under international law: legislation, enforcement and adjudication. In many instances, the prescriptive (legislative) jurisdiction of third States on the high seas does not carry with it enforcement jurisdiction, which remains with the flag State.
In sketching the legal framework, it will thus be necessary not only to ask whether a State has jurisdiction over a person at sea, but also what sort of jurisdiction this is – legislative, enforcement, or adjudicative – and whether it is general or, conversely, functional and therefore limited to a specific subject matter.
III. The Legal Framework Concerning Jurisdiction Over Persons at Sea
There is no general rule of public international law or the law of the sea that permits one to determine the State having jurisdiction over a person at sea. As a consequence, it is necessary to look for specific rules that attribute – directly or indirectly – jurisdiction to a State over a person.
1. Direct Attribution of Jurisdiction Over the Person
In a few instances, provisions in the UNCLOS or in other law of the sea treaties link a State and a person, directly attributing jurisdiction over this person to a specific State. The relevant provisions either mention the word “jurisdiction”, as in the case of Art. 94(2)(b) UNCLOS or refer to the act that constitutes an exercise of jurisdiction, e.g. ‘adopt laws’ or ‘arrest’.10 While provisions generally referring to a ‘person’, such as Art. 98(1)(a) UNCLOS, should be considered as applying to any human being, there are some rules that specify, ratione personae or ratione materiae, the type and content of the State’s powers.
In limiting jurisdiction ratione materiae, norms may refer to the ‘master and the crew’,11 the master or ‘any other person in the service of the ship’,12 ‘pirates’,13 or ‘fishers’.14 In all these cases, the persons mentioned are certainly under the jurisdiction of the State or States referred to in the relevant rules. In some instances, relevant treaties provide definitions. Thus, the 2006 Maritime Labour Convention (MLC) defines ‘seafarer’ as ‘any person who is employed or engaged or works in any capacity on board a ship to which this Convention applies’,15 and the 2007 Work in Fishing Convention (C188) provides that ‘fisher means every person employed or engaged in any capacity or carrying out an occupation on board any fishing vessel, including persons working on board who are paid on the basis of a share of the catch but excluding pilots, naval personnel, other persons in the permanent service of a government, shore-based persons carrying out work aboard a fishing vessel and fisheries observers’. In other cases, although no definition is provided, the meaning of a specific term can be deduced from the context. The term ‘pirate’ used in Art. 105 UNCLOS, for example, can only mean a person in dominant control of a vessel (Art. 103 UNCLOS) used for the activities mentioned in Art. 101 UNCLOS. In the absence of a definition or of other rules that may point to the meaning of a specific term, interpretation may become more difficult. In these cases, reference to other treaties may provide useful, albeit not binding, guidance. For example, the MLC definition of ‘seafarer’ can be used to determine who is part of the ‘crew’, as employed in Art. 94 UNCLOS.
Norms attributing jurisdiction over a person may also specify the power of a State functionally. For example, Art. 97(1) UNCLOS attributes ‘penal’ and ‘disciplinary’ jurisdiction over the master and the crew in the event of a collision, while Art. 109(3) UNCLOS provides for adjudicatory jurisdiction in the case of unauthorised broadcasting from the high seas. In other cases, a provision may provide for a particular mechanism, without specifying the theoretical basis for the exercise of such power. Regulation 5.2.2 MLC provides that ‘[e]ach Member shall ensure that seafarers on ships calling at a port in the Member’s territory who allege a breach of the requirements of this Convention (including seafarers’ rights) have the right to report such a complaint in order to facilitate a prompt and practical means of redress’. While it is clear that the port State may exercise jurisdiction, it is uncertain whether this is legislative, enforcement or adjudicative jurisdiction.
A number of criteria are used for the purposes of attributing jurisdiction over persons. The flag of the vessel is a widely used criterion. In addition to the two already mentioned provisions concerning collisions and unauthorised broadcasting from the high seas, the nationality criterion is used for linking persons with States with respect to fishing on the high seas, exploitation of resources of the International Seabed Area, illegal drug trafficking and offences against the safety of maritime navigation. Under Art. 117 UNCLOS, nationality is the main criterion for establishing jurisdiction over fishers on the high seas.16 With respect to activities in the International Seabed Area, the State of nationality has legislative and enforcement jurisdiction concerning liability and compensation with respect to any physical or juridical person that either engages in activities therein or controls a company that does so.17 Nationality also constitutes one of the multiple bases for the exercise of jurisdiction under Art. 4(1)(b)(i) of the 1988 UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988 Vienna Convention). In this case, legislative and adjudicatory jurisdiction can be exercised with respect to acts committed anywhere, while enforcement is still limited by the traditional rules of law of the sea, as Art. 17 makes clear. While the 1988 Vienna Convention allows, but does not mandate, nationality to be used as a basis for jurisdiction against persons committing crimes, under Art. 6(1)(c) of the 2005 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA Convention), states parties are obliged to establish legislative and adjudicatory jurisdiction over their nationals who commit any of the offences against the safety of navigation addressed in the treaty.18