Border crossing and IMO antiterrorist measures

Legal aspects

Border crossing at sea

progressive, coexistent with flag with coastal and port State jurisdiction

territorial scope: internal waters/territorial sea/beyond the territorial sea (high seas)

EEZ = high seas in cases of criminal prevention and punishment.

IMO measures and border crossing

ISPS Code: flag State bound to port and port State, irrespective of where the ship may be.

SUA: prosecution and punishment of crimes in navigation towards, and across, international waters (internal and territorial waters if ship bound cross to high seas)

SUA regulations

Offences outside the scope of “piracy” Establishment of multiple jurisdiction for

prosecution or extradition Obligation to prosecute or extradite the

alleged offender. Obligation to prevent the alleged

offender from escaping prosecution. Adequate punishment boarding of foreign ships beyond the TS.

Offences regulated by SUA

Crimes committed on board or against a ship endangering or likely to endanger safety of navigation: unlawful seizure/ violence against a person/damage or destruction to ship or cargo

Ships used as weapons to intimidate population or compel governments to do, or abstain from doing, any act

illicit transport of biological and chemical weapons, or weapons of mass destruction intended to be used for unlawful acts.

Transport of fissionable or dual use material not under IAEA safeguards

Death or injury in connection with the above.

Piracy or terrorism?

Piracy (UNCLOS): high seas/universal jurisdiction/ private ends as exclusive motivation

Terrorism (SUA): navigation towards high seas and in the high seas/multiple jurisdiction/”terrorist” motivation not exclusive.

Jurisdiction

Piracy: any State has the right to prosecution and punishment

Other offences (SUA) several, but not all States can claim rights to prosecute and punish.

SUA offences: State jurisdiction is regulated by treaty law

Compulsory jurisdiction (arts. 6. 1 and 4)

A State Party must establish jurisdiction: As Flag State (offences on board of

ships flying its flag) Offences committed in its territory

(including its TS) Offences committed by its nationals Any case of no extradition of alleged

offenders being in its territory

Facultative jurisdiction art.6, 2)

A State Party may establish jurisdiction in the following cases:

Alleged offender is a stateless persons living in its territory

Its nationals have been threatened, sized, injured or killed

Offence committed in order to compel that State to do, or abstaining from doing, any act

First step: delivery (SUA article 8)

Masters should deliver alleged offender to any other State Party (receiving State)

If possible masters should notify receiving States in advance of the intention to deliver

Masters should furnish receiving States with evidence of the offence allegedly committed.

The receiving State should accept delivery of the alleged offender.

The only reason to refuse acceptance is the non-application of the Convention to the alleged offender

A written statement for refusal must be provided

Initiation of proceedings (article 7)

A State Party is obliged to: take alleged offenders into custody, no

matter where they may have committed the offence

make a preliminary inquiry notify States which have established

jurisdiction, indicate its findings and whether it intends to prosecute or extradite

notify State of nationality of the alleged offender and allow visit by a representative

Beyond the territorial sea

PIRACY: Ships engaged in piracy can be bordered and seized by any ship

Other crimes: ships where crimes are prepared and committed can only be intercepted by ships in public service flying their same flag.

SUA boarding provisions

Terrorist crimes, if not subject to universal jurisdiction, justify some interference with the exclusive jurisdiction of flag States.

Aim of interference: to prevent or stop commission of terrorist crimes

Boarding: aims and meaning Brings terrorism closer to piracy as

“crime against humanity” Widens the right of States to prevent

and punish terrorist acts Expands criminal prevention beyond the

TS high seas within a concrete legal

framework of prevention of unlawful acts

Boarding provisions (art 8bis)

Scope of application: seawards of TS Justification is imminence of an offence (about

to be committed, being committed or has been committed).

the flag State is entitled to give or refuse its consent

flag State jurisdiction is preserved throughout the proceedings.

SUA regulate safeguards to preserve human rights law and safety of ship and its cargo.

EXTRADITION (Art.11)

SUA offences must be included in all extradition treaties in force in any SUA State Party

If there is no extradition treaty, the SUA party which has taken the alleged offender into custody may use the SUA as the legal basis for extradition

In case of requests for extradition emanating from several States, SUA does not establish a priority

However, the interests and responsibilities of the flag State should be paid due regard

Modalities of extradition (arts. 11 bis and ter)

Political offence or political motivation exemption does not apply. This means that the political motivations to commit an offence cannot be considered as reason for exemption from prosecution or extradition.

Extradition can be denied if the requesting State intends to punish a person on account of race, religion, nationality, ethnic origin, political opinion or gender .

Domestic legislation required to implement the treaty

Criminal codes, bills, etc. should ensure that all offences should be made punishable in accordance with domestic law taking into account their grave nature (art.5)

Domestic law should regulate liability of legal entities for offences committed by persons responsible for management or control (art. 5bis)

Domestic law should ensure the taking into custody of the alleged offender and preliminary inquiry into facts