“The Untouchables”

Organised Crime in International Waters

Admiralty and Maritime Law Seminar

Admiralty Criminal Jurisdiction

• 1. Historically applied only to British ships and British subjects aboard foreign ships.

• 2. Oteri v. Reg (WA, 1976). Larceny of lobster pots 22 miles off the coast held chargeable under the Theft Act (UK) since only English law applied under admiralty jurisdiction.

• 3. Admiralty criminal jurisdiction replaced in Australia by Crimes at Sea Act, 1979 (Cth).

Crimes at Sea Act (now 2000)

• 1. Extends State and Northern Territory criminal law to offshore areas out to 200 miles.

• 2. Beyond 200 miles the criminal law of the Jervis Bay Territory applies to:

• *Australian citizens and Australian ships;• *Foreign ships if their first port of call after the

offence is in Australia.

Relevance of International Law

• 1. International law affords rights of coastal states in offshore areas and imposes certain restraints.

• 2. In particular, international law regulates the exercise of powers of arrest of foreign vessels and persons at sea.

• 3. International law of the sea codified in the UN Convention on the Law of the Sea, 1982 (UNCLOS) to which Australia and 166 other states are parties.

Maritime Zones

• * Territorial Sea (extends to 12 nm from coast)• * Contiguous Zone (a further 12 nm seaward)• * Exclusive Economic Zone (to 200 nm from

coast)• * Continental shelf (to 200 nm or to the natural

geographical limit of the seabed)• * The high seas. (This zone coexists within the

EEZ to the extent not affected by the EEZ regime, and to the ocean beyond 200 nm).

Jurisdiction of coastal states

• 1. Territorial sea. Complete save for right of foreign vessels to innocent passage.

• 2. Contiguous zone. Extended jurisdiction for enforcement of fiscal, immigration, customs and sanitary laws.

• 3. EEZ. Regulation and management of natural resources and preferential access.

• 4. Continental shelf. Exclusive rights to natural resources of seabed to 200 nm.

Enforcement rights within zones

• 1. Territorial sea. Unrestricted except for innocent passage.

• 2. Contiguous Zone. Special rights of control.• 3. EEZ. Specific rights of arrest and

prosecution in respect of violations of natural resources and marine pollution given by UNCLOS, implemented by e.g. Fisheries Management Act, 1991; Whale Protection Act, 1980.

High Seas

• UNCLOS article 110 affirms customary law immunity of vessels on high seas except where they are reasonably suspected of:

• - piracy;• - slave trade;• - displaying no flag or without nationality;• - is in reality of the same nationality as the

enforcement state.

Flags of Convenience

• 1. Popular meaning is of a vessel flying under the flag of a State which has low taxes and/or lax supervision. Nevertheless, such flags are valid under international law.

• 2. Only if satisfying the provisions of UNCLOS article 92 prohibiting the dishonest use of two or more flags “according to convenience” may a vessel be assimilated to a vessel without a nationality.

Special Commonwealth Jurisdictions

• There are special laws applying in offshore areas by Commonwealth legislation in respect of, inter alia:

• - people smuggling; terrorism; crimes against humanity; war crimes; slavery; trafficking in persons.

• These are subject to the four categories of “extended geographical jurisdiction” under the Criminal Code Act, 1995.

Powers of Arrest at Sea

• * Generally governed by article 110 UNCLOS (above) except against Australian vessels.

• * Where justified by special conventions on high seas against foreign vessels Attorney-General’s consent must be obtained so as to ensure that international law is not breached.

• * Often, consent of foreign State must first be obtained, e.g. Crimes (Traffic in Narcotic Drugs) Act, 1990.

“Untouchables”?

• Where a foreign vessel is present on the high seas (including in the Australian EEZ) and is not engaged in any activity related to resources prohibited within the EEZ, boarding, searching, and arrest are not possible except with the permission of the flag State (UNCLOS article 110 above). Australian legislation respects this limitation.

Untouchables (cont’d)

• Article 110 contains an important qualification: “except where acts of interference derive from powers conferred by treaty”.

• A “treaty” may be UNCLOS itself, a formal treaty such a regional fisheries cooperation agreement, or an ad hoc arrangement, eg in relation to immigration.

• Hence it is possible to conclude agreements for the waiver of immunity with a flag State of suspicious vessels.