DETERMINATION OF CRIMINAL JURISDICTION BASED ON THE 1982 CONVENTION ON THE LAW OF THE SEA

ABSTRACT

The United Nations Convention on the Law of the Sea signed on December 10, 1982 is regarded as the world’s Constitution of the sea. As an important part of the Convention that concerns the relationships among countries in respect to the preventionand combat against crimes at sea, the rules for delimitation of criminal jurisdiction among countries in general and among coastal States and flag States in particular lay the foundation for determining the obligations of countries involved in handling and penalizing crimes at sea.

АННОТАЦИЯ

Конвенция ООН по Морскому праву, подписанная 10 декабря 1982 г., считается всемирной конституцией моря. Как важная часть Конвенции, которая касается отношений между странами в отношении предотвращения и борьбы с преступлениями на море, правила разграничения уголовной юрисдикции между странами в целом и между прибрежными государствами и государствами флага в частности закладывают основу для определения обязательств стран, участвующих в рассмотрении и наказании преступлений на море.

Keywords: 1982 Convention on the Law of the Sea, criminal jurisdiction, crimes at sea.

Ключевые слова: Конвенция 1982 года по морскому праву, уголовная юрисдикция, преступления на море.

Content:

1. Relevant terms

Criminal jurisdiction

The definition of criminal jurisdiction is not specified in the 1982 Convention on the Law of the Sea, but it can be derived from countries’ practical experience as follow: criminal jurisdiction refers to the right of a country to apply its own laws in detaining, arresting, prosecuting, and trying individuals who commit criminal offenses in accordance with its criminal laws. This right comes from sovereignty and is usually limited within the national territory. For international law of the sea, however, criminal jurisdiction may also arise outside the national territory just like it does within the waters under national sovereignty or in international waters, even in the territorial waters of another nation (for example: the criminal acts of crew on a foreign civil ship crossing the territorial sea but not entering the internal waters of a coastal State may fall under the jurisdiction of such ship’s flag State).

Crimes at sea

Pursuant to the 1982 Convention on the Law of the Sea, a crime at sea can be constituted by any of the following groups of crimes:

- International criminal offences: This group of crimes is stipulated in international treaties namely the 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1949 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, 2004 Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia, 2000 Convention Against Transnational Organized Crime, and so on. This group of crimes is characterized by the transnational (international) nature, which makes it a shared danger to the international community rather than to only one country, hence the need for transnational cooperation in effective prevention and penalization. The 1982 Convention on the Law of the Sea lists the crimes at sea as piracy (Articles 100-107), transport of slaves (Article 99), illicit traffic in narcotic drugs or psychotropic substances (Article 108), and unauthorized broadcasting (Article 109).

- General criminal offenses: These crimes are regulated by the criminal laws of a country, absent of international characteristics (in terms of subject, consequences and location), and by nature not challenging the international legal order and the international community’s interests. Still, the enforcement of justice against this type of crime in many case is impossible or troublesome without the assistance of other countries [7]. There are indeed numerous forms of general criminal of fen seat sea, for instances smuggling, waterway traffic violations, violations of regulations on exploitation of marine resources... Due to the typical mobility of offenders over the territories of many countries, the jurisdiction of countries may overlap. That is why the 1982 Convention on the Law of the Sea specifies certain rules for delimiting the criminal jurisdiction among countries for this type of crime. For example, Article 27 of the Convention provides for which crimes committed in the territorial sea are under the jurisdiction of the coastal State and which are not.

- Crimes related to fishing, environment protection and marine scientific research: These types of crimes are naturally general criminal offenses, which are regulated by the criminal laws of countries. Nevertheless, the 1982 Convention on the Law of the Sea specifies binding regulations on the obligations of countries in prevention and penalization of crimes that infringe the above said activities, because this group of crimes cause huge adverse impacts on the conservation of marine resources, assurance of the legal order in resource exploitation as well as the common interests of the international community.

Whether the 1982 Convention on the Law of the Sea attributes the criminal jurisdiction to a coastal State or the flag State or any State that detects or becomes affected by the crime depends on the itemized acts of crime at sea and the location of crime occurrence.

2. Criminal jurisdiction of the coastal State

The 1982 Convention on the Law of the Sea determines the criminal jurisdiction of a coastal State based on the location of crime occurrence. This jurisdiction is thereby applied differently and descends in the following order: internal waters, territorial sea, contiguous zone, exclusive economic zone and continental shelf of the State. Specifically:

For criminal offences committed in internal waters: The coastal State has absolute discrete sovereignty over its internal waters. Therefore, any criminal offence committed in internal waters may fall under the criminal jurisdiction of the coastal State. In other words, the coastal State has discretion to de tain, arrest, prosecute and try those committing criminal offences in the internal waters of the coastal State. International practice provides that any criminal judicial measure applied to foreign ships or crew on foreign ships shall be properly notified to the diplomatic representative agency and consular agency of the country of the ship’s nationality, who in return would take protective measures against their citizens and ships. It should be noted that this jurisdiction does not apply to military ships and state-owned ships employed for non-commercial purposes of other countries because these ships are entitled to absolute inviolability and judicial immunity.

For criminal offences committed in the territorial sea: The coastal Stateholds full criminal jurisdiction over criminal offences committed in the territorial sea if the ship passes through the territorial sea after leaving internal waters (Clause 2, Article 27) [1]. In case of opposite journey, that is, the ship passes through the territorial sea to commit the criminal offence with or without entering the internal waters, the criminal jurisdiction of the coastal State will be limited, pursuant to Clause 1, Article 27, to only the following 4 circumstances:

- If the consequences of the crime extend to the coastal State;

- If the crime is of a kind to disturb the peace of the country or the good order of the territorial sea;

- If the assistance of the local authorities has been requested by the master of the ship or by a diplomatic agent or consular officer of the flag State; or

- If such measures are necessary for the suppression of illicit traffic in narcotic drugs or psychotropic substances.

The 1982 Convention on the Law of the Sea requires that the coastal State, when exercising criminal jurisdiction in the territorial sea, shall give prior notice of any measures it may take against the ship to the diplomatic representative agency or consular agency of the flag State and take into account the maritime interests, so as to avoid unnecessary damages to the legitimate maritime operations of other countries (Clauses 3, 4, Article 27) [1].

Furthermore, the coastal States have no criminal jurisdiction at all if a foreign ship passes through the territorial sea without entering internal waters and commits a criminal offense before it enters the territorial sea (Clause 5, Article 27) [1]. This is because the criminal offence occurs outside the sovereignty of the State and the jurisdiction therefore falls under the flag State. However, the Convention omits whether the criminal jurisdiction is attributed to the coastal State or not in case a ship passes through the territorial sea to enter internal waters and a criminal offense occurs before it enters the territorial sea. In reality, the likelihood of detention, handling or extradition of offenders who commit criminal offenses abroad while present in the internal waters or territory of the coastal State depends on the cooperation of that State with relevant States.

For criminal offences committed in the contiguous zone: Contiguous zone is an exceptional sea area under the sovereignty of the coastal State. This is the outer sea area adjacent to the territorial sea, which is the "gate way" in to the national territory, so the 1982 Convention on the Law of the Sea provides for guard-natured rights through which the coastal State can "extend" its protection and law enforcement at sea beyond its national territory. It is stipulated in Article 33 of the Convention that:

“In a zone contiguous to its territorial sea, described as the contiguous zone, the coastal State may exercise the control necessary to:

(a) Prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea;

(b) Punish infringement of the above laws and regulations committed within its territory or territorial sea.

Accordingly, if criminal offenses occur within the territory or territorial sea of a coastal State while the offender presents in the contiguous zone, the coastal State may still apply all necessary criminal juridical measures to appropriately penalize the offender.

For criminal offences committed in the exclusive economic zone and continental shelf

As the maritime zones under the sovereign rights of coastal States, exclusive economic zones and continental shelves are subject to both the rights of coastal States and the rights of other States, but economic rights are mostly exclusive to coastal States. The 1982 Convention on the Law of the Sea protects those economic rights by conferring coastal States the jurisdiction to handle issues affecting their economic rights. Thus, as regard to criminal jurisdiction, coastal States have the authority to handle criminal offences only within their exclusive economic zone and continental shelf if such offences are committed by their citizens, on ships flying their flag, or by foreign individuals or ships that violate the Convention’s regulations. Particularly, Point b, Clause 1, Article 56 of the Convention states that coastal States have jurisdiction in accordance with the Convention’s appropriate provisions on:

- Establishment and use of artificial islands, installations and structures;

- Marine scientific research;

- Protection and preservation of the marine environment;

Article 73 specifies that “The coastal State may, in the exercise of its sovereign rights to explore, exploit, conserve and manage the living resources in the exclusive economic zone, take such measures, including boarding, inspection, arrest and judicial proceedings, as may be necessary to ensure compliance with the laws and regulations adopted by it in conformity with this Convention.”

3. Criminal jurisdiction of the flag State

In addition to provisions on the criminal jurisdiction of the coastal State, the 1982 Convention on the Law of the Sea also repeats recognition of the flag State’s jurisdiction over certain types of criminal offences committed on sea areas, out of consideration for the sovereign relationship between the State and the ships of its nationality (flying its flag). The absolute criminal jurisdiction of the flag State is first of all applied to ships on international seas, but in some cases, the flag State may have criminal jurisdiction when its ships are on the seas under the sovereignty or sovereign rights of other States.

For criminal offences committed on international seas: pursuant to Article 92 of the 1982 Convention on the Law of the Sea, ships sailing under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or in this Convention, shall be subject to its exclusive jurisdiction on the high seas. It is also stated in Article 97 of the Convention that: “In the case of a collision or any other incident of navigation concerning a ship on the high seas, involving the penal or disciplinary responsibility of the master or of any other person in the service of the ship, no penal or disciplinary proceedings may be instituted against such person except before the judicial or administrative authorities either of the flag State or of the State of which such person is a national”. Thus, all criminal offences committed on ships on international seas fall under the jurisdiction of the flag State. Even in cases where this jurisdiction may be shared with States (e.g. the States of which the offender is a national), the Convention always gives priority to the flag State.

For criminal offences committed in the sea areas under the sovereignty or sovereign rights of other States: Notwithstanding the absence of direct regulations on the jurisdiction of the flag State over criminal offences in these sea areas, the Convention, by limiting the jurisdiction of the coastal State to certain criminal offences in the territorial sea, contiguous zone, exclusive economic zone and continental shelf, implicitly recognizes that except for criminal offences under the criminal jurisdiction of the coastal State, any other criminal offences committed in these sea areas will be under the jurisdiction of the flag State, for the sake of the flag State’s sovereignty over its registered ships bearing its nationality. For example, under Clause 1, Article 27 of the Convention, if a criminal offence occurs on board a foreign ship in the territorial sea and falls under none of the four circumstances where the jurisdiction of the coastal State applies, then the jurisdiction to handle the case must be attributed to the flag State, not the coastal State.

4. Criminal jurisdiction of any State

Beside regulating the criminal jurisdiction of the coastal States and flag States, the 1982 Convention on the Law of the Sea also extends the criminal jurisdiction of all States over international criminal offenses on the high seas. As discussed above, the danger posed by international crimes affects the international community as a whole rather than just one country, hence the need for cooperation of all States in effectively preventing and penalize crimes. The 1982 Convention on the Law of the Sea outlines four groups of international crimes: transport of slaves (human trafficking), piracy, illicit traffic in narcotic drugs or psychotropic substances and unauthorized broad casting. This lays the basis for determination of every country’s obligations in preventing and criminally handling those committing the said crimes.

- For transport of slaves:

Article 99 of the Convention specifies that “Every State shall take effective measures to prevent and punish the transport of slaves in ships authorized to fly its flag and to prevent the unlawful use of its flag for that purpose”. Accordingly, the responsibility for preventing and punishing this type of crime lies first of all with the flag State. On the other hand, Article 110 of the Convention allows the warships of any State, if finding grounds to suspect a ship of another State to commit this act, to examine and arrest the offenders. This points out that the exercise of criminal jurisdiction over this crime must be based on the tight coordination of all States through the surveillance of warships on the high seas.

- For piracy

Since old times, piracy has always been a severe threat to the safety of lives, properties and means of transport at sea, especially in the current context where international maritime transport plays a key and decisive role in global trade. To effectively handle and penalize this crime, Article 105 of the 1982 Convention on the Law of the Sea states that: “On the high seas, or in any other place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board. The courts of the State which carried out the seizure may decide upon the penalties to be imposed, and may also determine the action to be taken with regard to the ships, aircraft or property, subject to the rights of third parties acting in good faith”. It can be observed that the Convention attributes a broad range of criminal jurisdiction over this type of crime, not only to the flag State of the offending ship, the State of which the offender is a national, but also any country that detects and arrests the offending persons and means.

- For illicit traffic in narcotic drugs or psychotropic substances

Drug crime is a dangerous crime going beyond the national borders, seriously affecting the health and well-being of people as well as the economic, social and political issues of countries. Therefore, suppression and penalization of drug crimes require a close cooperation among countries. It is stipulated in Article 180 of the 1982 Convention on the Law of the Sea that: "All States shall cooperate in the suppression of illicit traffic in narcotic drugs and psychotropic substances engaged in by ships on the high seas contrary to international conventions." The surveillance, inspection and detention of ships suspected of illegally transporting narcotic drugs or psychotropic substances are carried out by warships and ships being on public service of countries (Clause 1, Article 110) [1]. Any State that detects and arrests individuals and ships illegally transporting narcotic drugs or psychotropic substances shall also have the authority to handle and penalize such crime in accordance with its national criminal laws, unless parties have entered into quid pro quo agreement upon extradition of drug criminals.

- For unauthorized broadcasting

Pursuant to Paragraph 2, Article 109, “unauthorized broadcasting” means the transmission of sound radio or television broadcasts from a ship orinstallation on the high seas intended for reception by the general publiccontrary to international regulations, but excluding the transmission of distress calls. All States shall cooperate in the suppression of unauthorized broadcasting from the high seas.”Unauthorized broadcasting can be employed for propaganda purposes that compromise the sovereignty and security of countries, interfere with the receiving, broadcasting and transmitting systems of countries or disseminate false information that endangers the maritime and aviation order and safety as well as any other economic and social sectors. That is why the 1982 Convention on the Law of the Sea provides for an extensive range of criminal jurisdiction against unauthorized broadcasting, which extends to the courts of any country involved in the unauthorized broadcasting. Particularly, Clause 3, Article 109 states that:

“Any person engaged in unauthorized broadcasting may beprosecuted before the court of:

(a) The flag State of the ship;

(b) The State of registry of the installation;

(c) The State of which the person is a national;

(d) Any State where the transmissions can be received; or

(e) Any State where authorized radio communication is suffering interference.”

Clause 4 of the same Article also stipulates that if unauthorized broadcasting is conducted on the high seas, warships of any country have the right to examine and arrest. Accordingly, the State having carried out the arrest may proceed to exercise the right to prosecute and try the case in accordance with Clause 3 above.

Conclusion

- For 40 years after its signing and nearly 30 years in force, the 1982 Convention on the Law of the Sea has affirmed its momentous role as the legal foundation for all ocean-related issues on the global scale. As regard to the prevention and struggle against crimes at sea, the Convention provides rules for the strict delimitation of criminal jurisdiction to "empower" countries in judgement and penalization of all types of crimes at sea. Nonetheless, the Convention’s provisions on criminal jurisdiction are quite general with a lack of explicitness in some important aspects, which makes room for potential conflicts over criminal jurisdiction among countries (For example, determination of the flag State’s criminal jurisdiction over a ship present in the sea areas of another State). For this challenge to be resolved, countries need to promote cooperation and enter into bilateral or regional multilateral international treaties that concretize the Convention’s provisions applicable to specific cases arising out of their relations.

- It is undeniable that the development of 1982 Convention on the Law of the Sea as the world’s Constitution of the sea has turned international law of the sea into an independent branch of law that holds a critical position in the international legal system. The provisions of the Convention in general and regulations on criminal jurisdiction over crimes at sea in particular have effectively contributed to the prevention and combat against crimes at sea, thereby boosting the assurance of order, peace and security of this planet, 70% of which is covered by seas and oceans. In tandem with the development of science and technology, the escalated exploitation and use of marine resources for mankind’s socio-economic development ambitions, as well as the complex movements of various types of crimes at sea, the maritime relationship among countries will certainly reach new levels of complexity. This requires every State that looks forward to assuring and maintaining sustainable development, peace and stability, to respect and fully comply with the provisions of the 1982 Convention on the Law of the Sea./.

References:

1. 1982 United Nations Convention on the Law of the Sea// URL: https://www.unclos.org/  (Date of request 19.01.2025);
2. 1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances// URL: https://www.unodc.org/pdf/convention_1988_en.pdf  (Date of request 19.01.2025);
3. 2011 Law on Human Trafficking Prevention and Combat// URL: https://www.warnathgroup.com/wp-content/uploads/2024/09/F-1429920306_VNM91653-Eng.pdf   (Date of request 19.01.2025);
4. Circular No. 19/2013/TT-BTTTT dated December 02, 2013 on Frequencies for emergency services, safety services, search and rescue at sea and in civil aviation// URL: https://luatminhkhue.vn/en/circular-no-19-2013-tt-bldtbxh.aspx  (Date of request 19.01.2025);
5. Council of Europe Convention on Action against Trafficking in Human Beings 2005// URL: https://rm.coe.int/168008371d  (Date of request 19.01.2025)
6. Faculty of Criminal Legislation - Ho Chi Minh City University of Law (2020), Vietnam’s Criminal Legislation Textbook - Crimes, Hong Duc Publishing House, Ho Chi Minh City.
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