INTERNATIONAL CRIMINAL LAW OF THE SEA
4.1
INTRODUCTION: THE LAW OF THE SEA
Before we set out to explore maritime crime it is useful to remember the sources of the
law of the sea, namely customary law and treaty law. Most of the former has been
codified in the 1982 United Nations Convention on the Law of the Sea (UNCLOS), as
well as its precursor, the 1958 Geneva Conventions. Other treaties, however, both
bilateral and multilateral, address issues relating to the seas. States have certain rights
and duties regarding the seas, depending on the maritime belt under consideration.
UNCLOS clearly sets out the various maritime belts. The measurement of maritime
belts seawards commences from what are known as baselines. UNCLOS provides for
two types of baselines, normal and straight. Where a coastline is not heavily indented,
the officially recognised low water mark point represents the normal baseline, and
thus the starting point for measuring the breadth of the various maritime belts. In the
case of indented coastlines, the method of drawing straight lines between points on
the coast or at sea may be used. The territorial sea may extend up to 12 nautical miles
seaward from the baselines, whereas all waters landward from the baselines are
considered internal waters. States retain sovereignty in both internal waters and
territorial sea but there is an obligation to grant a right of ‘innocent passage’ in the
latter, provided that such passage is not detrimental to the security of the coastal State.
UNCLOS also introduced a regime for archipelagic States, that is States made up of a
group of closely spaced islands, such as Indonesia. For those States, the territorial sea
is a 12 mile zone extending from a line drawn joining the outermost points of the
outermost islands of the group that are in close proximity to each other. The waters
between the islands are declared archipelagic waters, where ships of all States enjoy
the right of innocent passage. As regards international straits, the regime of ‘transit
passage’ retains the international status of the straits and gives naval powers the right
to unimpeded navigation and overflight. In all matters other than transient navigation,
straits are considered territorial waters. Coastal States are also empowered to
implement certain rights in an area beyond the territorial sea, extending 24 nautical
miles from their baselines, for the purpose of preventing certain violations and
enforcing police powers. This area, known as the ‘contiguous zone’, may be used to
curtail offenders violating the laws of the coastal State within its territory or its territorial
sea. The exclusive economic zone (EEZ) extends up to 200 nautical miles from the
baselines. The coastal State retains sovereign rights but not sovereignty in the EEZ.
The continental shelf comprises the seabed and its subsoil that extend beyond the
limits of the territorial sea throughout the natural prolongation of the coastal State’s
land territory to the outer edge of the continental margin, or to a distance of 200 miles
from the baselines, where the outer edge of the continental margin does not extend up
to that distance. In cases where the continental margin extends further than 200 miles,
States may claim a continental shelf up to 350 miles from the baseline or 100 miles
from the 2,500 metre depth isobath. The coastal State possesses exclusive rights of
exploration and exploitation of the continental shelf’s natural resources. The rights of
the coastal State over the continental shelf do not affect the legal status of the superjacent
International Criminal Law
94
waters or of the air space above those waters. Finally, the high seas are open to all
States and for a number of purposes, such as navigation, overflight, laying of submarine
cables and fishing, subject to certain restrictions. The international seabed, too, is not
subject to the sovereignty of any State, and is part of the ‘common heritage of mankind’.
In this chapter we examine the crimes of piracy
jure gentium,
mutiny, damage to
submarine cables, unauthorised broadcasting and the right of hot pursuit—although
the last relates to enforcement, it was included in this chapter for reasons of coherency.
Maritime crime is also explored in other chapters, especially those dealing with
jurisdictional issues (Chapter 7), the transport of slaves and the smuggling of migrants
on the high seas by organised criminal groups (Chapters 5 and 3), as well as the
transport of illicit narcotic substances (Chapter 3).
4.2
PIRACY
JURE GENTIUM
To those who believe that sea piracy is a romantic remnant of past centuries, it may
come as a surprise to discover that the International Maritime Organisation’s (IMO)
statistics on piracy and armed robbery at sea from 1984 to 31 December 1999 reported
1,751 known incidents.
1
The areas that are currently most affected by piratical attacks
are: the Far East, in particular the South China Sea and the Malacca Strait;
2
South
America and the Caribbean; the Indian Ocean; and West and East Africa. The increase
in piracy can be explained on several grounds, such as the need for small crews on
large technologically advanced vessels, which renders them vulnerable, lack of
adequate diplomatic representation where vessels fly flags of convenience, and poor
countries with large coastlines not being able to afford adequate patrol of their
territorial waters, let alone the adjacent high seas.
Contemporary pirates can be classified into two categories: first, those who operate
on a small scale, interested either in the possessions of the crew (the captain usually
keeps a substantial amount of money for payroll, maintenance and port fees), or
various equipment on board the vessel. The majority of such pirates operate when
ships are anchored in, or pass through, territorial waters. The second category
involves well organised groups whose operations go far beyond random attacks at
sea. Organised piracy aims either at the cargo of merchant vessels or the vessel itself.
When ships are stolen in this way they are repainted, renamed and reregistered.
Temporary registration certificates may be obtained through consulate offices,
whether by bribery or presentation of false documents, or both. The pirates will
then look for a shipping agent with a letter of credit that has almost expired and will
offer the services of their ship, upon which the ship is loaded and the shipper receives
the bill of lading. The pirates then sail to a different destination than the one specified
on the bill of lading. There they may unload the cargo to an accomplice, or an
unsuspecting buyer, and change the temporary registration certificate again. Low
1
Reports on Acts of Piracy and Armed Robbery Against Ships,
First Quarterly Report (JanuaryMarch 2000),
IMO Doc MSC/Circ 944 (1 April 2000), p 1; see International Chamber of Commerce (ICC),
Piracy and
Armed Robbery Against Ships: 2002 Annual Report,
2002, London: ICC, which recorded an increase in
incidents from 253 in the first nine months of 2001 to 271 for the corresponding period in 2002.
2
T Arbuckle, ‘Scourge of Piracy Returns to Southeast Asia’, 29
Jane’s International Defence Review
(1996), 26.
Chapter 4: International Criminal Law of the Sea
95
freight rates and financial recession has created an upsurge in organised piracy in
South East Asia, not only in the form of attacks against merchant vessels, but also in
defrauding insurance companies through acts of piracy against ships owned by
criminal groups such as the Chinese Triads.
3
Contemporary organised piracy is also
believed to be heavily involved in the illicit traffic of narcotic drugs and arms, while
reports indicate that corruption in a number of countries is responsible for both the
lack of prosecutions and enforcement, as well as for facilitating the disposal of stolen
vessels and cargo.
4
Do'stlaringiz bilan baham: |