Abstract
Developments in law and technology have incremented the cases in which States and people interact at sea and require that clear rules be in place to determine the State that has jurisdiction over a person and the content and extent of this jurisdiction. The chapter illustrates the criteria under international law for establishing such jurisdiction and discusses some issues related to the lack of always clear rules and the complex jurisdictional picture at sea. Functional jurisdiction, territorial jurisdiction and unlawful jurisdiction are in turn discussed. Finally, the chapter concludes that there are numerous rules that permit or mandate the exercise of jurisdiction over a person by a State and that the trend is towards the increase of legal duties to exercise such jurisdiction, so as to serve basic societal interests such as the protection of human rights.
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.
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Notes
- 1.
The obligation of non-refoulement (non-return) is contained in Art. 33 of the 1951 Convention Relating to the Status of Refugees. Similar obligations have been found to exist by interpretation of human rights treaties’ provisions, such as Art. 3 of the 1950 (European) Convention for the Protection of Human Rights and Fundamental Freedoms; for an application of this principle at sea, see ECtHR: Hirsi Jamaa and Others v Italy [GC], 27765/09, Judgment (23 February 2012) (‘Hirsi judgment’), par. 114.
- 2.
Prompt release cases addressed by the ITLOS and involving the release of the crew include ITLOS: Tomimaru (Japan v. Russian Federation), Judgment (6 August 2007) and ITLOS: Juno Trader (Saint Vincent and the Grenadines v Guinea-Bissau), Judgment (18 December 2004).
- 3.
Rigopoulos v Spain, decision of 12 January 1999, application no. 37388/97, Reports of Judgments and Decisions 1999-II. The extent to which the European Court of Human Rights has resorted to law of the sea concepts of jurisdiction in its decisions is analysed by Tavernier, who points out that, while the notion of jurisdiction emerging from the Court’s decisions is autonomous, it is also largely based on the notions to be found in international law and the law of the sea (Tavernier, La Cour européenne des Droits de l’Homme et la Mer, in La mer et son droit: mélanges offerts à Laurent Lucchini et Jean-Pierre Quéneudec (2003) 575–589, at 583). The opposite is also true. The International Tribunal for the Law of the Sea, in particular, has addressed more than once issues of human rights in its decisions concerning provisions of the law of the sea. See the comments by Treves, Human Rights and the Law of the Sea, Berkeley Journal of International Law 28 (2010) 1. This is a topic beyond the scope of this paper and will not be dealt with here.
- 4.
On this topic see Carbone, Conflits de lois en droit maritime, Recueil des Cours 340 (2009) 64.
- 5.
PCIJ: The case of the S.S. “Lotus”, Judgment of 7 September 1927, 19. Mann, The Doctrine of International Jurisdiction Revisited After Twenty Years, Recueil des Cours 186 (1984) 9–115, 20, takes this view but he considers that sovereignty is linked to territory.
- 6.
I consciously avoid speaking of areas beyond national jurisdiction at this point, as this would be a tautology.
- 7.
As Lowe/Staker, Jurisdiction, in International Law, ed. by Evans (3rd ed. 2010) point out, universal jurisdiction is indeed composed of two separate strands, i.e. the wish to punish heinous crimes and the need to assert jurisdiction in cases that otherwise would go unpunished.
- 8.
Tanaka, A Dual Approach to Ocean Governance (2008) 21–25.
- 9.
Gavouneli, Functional Jurisdiction in the Law of the Sea (2007). This is the outcome of the slow process of erosion of the freedom of the seas and the exclusivity of the flag State. Oxman, The Territorial Temptation: A Siren Song at Sea, The American Journal of International Law 100 (2006) 830. O’Connell has written of ‘several scales of jurisdiction’; O’Connell, The International Law of the Sea, vol. 2 (1984) 733.
- 10.
See, respectively, Art. 27 UNCLOS and Art. 105 UNCLOS.
- 11.
Art. 94(2)(g) UNCLOS.
- 12.
Art. 97(1) UNCLOS.
- 13.
Art. 105 UNCLOS.
- 14.
Art. 62(4) UNCLOS, referring to fishers operating in the exclusive economic zone of a State.
- 15.
Art. II(1)(f) MLC.
- 16.
See also Art. 7 Fish Stocks Agreement.
- 17.
Art. 139 UNCLOS.
- 18.
Enforcement jurisdiction however still rests on the traditional principles, as clarified by Art. 8bis(5) SUA Convention.
- 19.
Enforcement jurisdiction can also be exercise by the flag State when the vessel is navigating within the exclusive economic zone of another State. In this case, however, the right of the coastal State needs to be balanced with the rights of the coastal State, as provided under Art. 58(3) UNCLOS.
- 20.
ITLOS: M/V “Saiga” (no. 2) (Saint Vincent and the Grenadines v Guinea), Judgment (1 July 1999), par. 106. It is worth noting that a similar view has been adopted also by human rights judicial and quasi-judicial bodies, e.g. ECtHR, Banković and Others v Belgium and 16 Other Contracting States, application n. 52207/99, decision (Grand Chamber) of 12 December 2001, par. 73; Inter-American Commission of Human Rights on the merits of case 10.675, Report Nº 51/96 (the Haitian Centre for Human Rights case).
- 21.
E.g. Art. 5 European Convention on Human Rights. The issue was raised in the ECtHR: Medvedyev and Others v France, Judgment [GC] of 29 March 2010 (Medvedyev judgment).
- 22.
Klein, Maritime Security and the Law of the Sea (2011) 103.
- 23.
ECJ: Salemink [GC], C-347/10, Judgment (17 January 2012). The case concerned the applicability of European Union legislation on social security to a person employed on a platform on the Dutch continental shelf.
- 24.
The extent and limits to enforcement jurisdiction in the territorial sea are discussed in Shearer, Problems of Jurisdiction and Law Enforcement Against Delinquent Vessels’, International & Comparative Law Quarterly 35 (1986) 320.
- 25.
Regulation 19, International Convention for the Safety of Life at Sea, 1974 (SOLAS).
- 26.
Art. 6, International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 (MARPOL).
- 27.
Art. V(4) MLC.
- 28.
Art. 218(1) UNCLOS.
- 29.
Regulation 5.2.2 MLC.
- 30.
Stringer/Simmons/Coulston, Not in New Zealand’s Waters, surely? Labour and Human Rights Abuses aboard Foreign Fishing Vessels (2011).
- 31.
Report of the Ministerial Inquiry into the use and operation of Foreign Charter Vessels (2012), available at http://www.fish.govt.nz/NR/rdonlyres/1CD50F2C-5F55-481D-A3CB-9A7EC25CBE54/0/2012foreignchartervesselsreport.pdf (last visited on 30 March 2013).
- 32.
Ministry for Primary Industries, Briefing on the management of Foreign Charter Vessels in New Zealand, 4 February 2013, available at http://www.fish.govt.nz/NR/rdonlyres/25D4468F-1F4B-4F7A-92EB-4DE3691279C5/0/B12458forrelease.pdf (last visited on 30 March 2013).
- 33.
Art. 220(2) and Art. 19(2)(h) UNCLOS.
- 34.
The two are clearly distinguished by the European Court of Human Rights in its treatment of the Al-Saadoon case; Al-Saadoon and Mufdhi v United Kingdom, application n. 61498/08, admissibility decision, 30 June 2009, par. 87–88.
- 35.
In the Xhavara case, concerning the sinking on the high seas of an Albanian vessel engaged in migrant smuggling, the Kater I Rades, as a result of the collision with the Italian navy vessel Sibilla, the ECtHR considered that persons on board the Kater I Rades were brought within the jurisdiction of Italy as a consequence of the collision caused by the Italian vessel; ECtHR: Xhavara and other v Italy and Albania, Decision of 11 January 2001, par. 1. Nor is physical contact between the two vessels a requirement. In the Women on Waves case, the ECtHR addressed in the merits phase the (unlawful) de facto jurisdiction exercised by a Portuguese navy vessel over a Dutch vessel navigating outside the territorial waters of Portugal. The fact that the Court did not raise the issue of its jurisdiction at the preliminary stage, implies that there was jurisdiction of Portugal (and therefore of the ECtHR) despite the fact that the two vessels had not had any contact; ECtHR: Women on Waves and Others v. Portugal, Judgment of 3 February 2009, par. 43.
- 36.
Following a period of uncertainty due to contradictory pronouncements, recent decisions have settled the issue. See the decision of the European Court of Human Rights in the Al-Saadoon case, par. 88 and Al-Skeini and others v the United Kingdom, application no. 55721/07, Judgment of 7 July 2011, par. 136. For a different perspective see Milanovic, Extraterritorial Application of Human Rights Treaties (2011) 53.
- 37.
Art. 105 UNCLOS.
- 38.
Art. 27 (2) UNCLOS.
- 39.
Art. 33 (1) UNCLOS.
- 40.
Art. 73 (1) UNCLOS.
- 41.
Art. 97 (1) UNCLOS.
- 42.
Art. 94 (1) UNCLOS.
- 43.
This is not always the case, as the ‘left-to-die boat’ case has proved: Lives lost in the Mediterranean Sea: Who is responsible?, report to the Parliamentary Assembly of the Council of Europe, 5 April 2012, available at http://assembly.coe.int/ASP/XRef/X2H-DW-XSL.asp?fileid=18095&lang=EN (last visited on 30 March 2013).
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Papanicolopulu, I. (2015). Jurisdiction of States over Persons at Sea: Principles, Issues, Consequences. In: Basedow, J., Magnus, U., Wolfrum, R. (eds) The Hamburg Lectures on Maritime Affairs 2011-2013. Hamburg Studies on Maritime Affairs, vol 28. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-55104-8_6
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