subject: Israeli Jurisdiction on the high seas and Courts Jurisdiction over the Marmara incident [print this page] Israeli Jurisdiction on the high seas and Courts Jurisdiction over the Marmara incident
Whether or not Israeli Military Forces actions last week over International Water were justified depends largely on International Maritime Law.
Freedom over Int'l water was a dream of Dutch legal scholar, in is work Mare Liberum. He argued, "the sea is called indifferently the property of no one (res nullius), or a common possession (res communis), or public property (res publica)." Grotius contended that the sea could not be owned, and that no country could deny another country's ships innocent passage right up to the shoreline
In modern times, policing maritime zones allows a coastal States to arrest vessels outside their territorial seas in connection with offences that either has been committed or which it is suspected are going to be committed within their territorial sea.
According to Amnesty International:
National law in most states permits States to exercise jurisdiction over conduct by persons abroad which harms the national--particularly the security--interests of the forum state in violation of its own national criminal law (protective or security principle or comptence relle ou comptence du protection). This principle has been used to prosecute national security offences; currency offences; counterfeiting currency, stamps, seals and emblems; desecration of flags; economic crimes; forgery, fraud or perjury in connection with official documents, such as passports and visas. Article25
Rights of protection of the coastal State
1. The coastal State may take the necessary steps in its territorial sea to prevent passage which is not innocent.
2. In the case of ships proceeding to internal waters or a call at a port facility outside internal waters, the coastal State also has the right to take the necessary steps to prevent any breach of the conditions to which admission of those ships to internal waters or such a call is subject.
3. The coastal State may, without discrimination in form or in fact among foreign ships, suspend temporarily in specified areas of its territorial sea the innocent passage of foreign ships if such suspension is essential for the protection of its security, including weapons exercises. Such suspension shall take effect only after having been duly published.
The 1982 United Nations Convention on the Law of the Sea (LOSC) lays out the current rules. As of April 2006, 149 nations had ratified the LOSC. The U.S. played a major role in the drafting of the LOSC, but then decided not to sign it. Never fear: the rules we're discussing here apply to the U.S. The U.S. is party to other treaties with similar provisions, has asserted rights available only under the LOSC, and has said that its provisions are part of existing international law. So it's the best place to start looking for answers.
You asked about ungoverned spaces. Technically they exist--the LOSC calls them the high seas: "No State may validly purport to subject any part of the high seas to its sovereignty." But that doesn't mean you can avoid prosecution for crimes committed there.
For one thing, every ship is subject to the jurisdiction of the country whose flag it flies. So are its occupants. And you can't just pick the flag of a country whose laws are most favorable to you, either. The LOSC says there must be a "genuine link" between the ship and the state. Furthermore, you have to ask the country's permission and provide it with your ship's "name and particulars."
The idea that there is no jurisdiction on the high seas comes from confusion about the meaning of jurisdiction. Jurisdiction describes the limits of the legal power of a nation (international lawyers call them States) to make (prescriptive jurisdiction), apply (adjudicative jurisdiction), and enforce (enforcement jurisdiction) rules of conduct. One basis of jurisdiction is territory--a State can make and enforce laws in its own territory. The confusion arises from the assumption that this is the only basis of jurisdiction. It isn't. There are others:
(1) The territorial principle, which we've already covered.
The other categories are forms of extraterritorial jurisdiction:
(2) The nationality principle, also sometimes called the active personality principle. That's the one involved where ships are concerned. LOSC says, "Ships have the nationality of the State whose flag they are entitled to fly." The nationality principle says that states have the right to regulate the conduct of their nationals. One example of this principle at work is section 4 of the Indian Penal Code, which says, "The provisions of this Code apply also to any offence committed by (1) any citizen of India in any place without and beyond India; (2) any person on any ship or aircraft registered in India wherever it may be." Another example is the U.S.'s application of its civil rights laws to Americans employed abroad by American employers.
(3) The protective principle. According to Amnesty International:
National law in most states permits courts to exercise jurisdiction over conduct by persons abroad which harms the national--particularly the security--interests of the forum state in violation of its own national criminal law (protective or security principle or comptence relle ou comptence du protection). This principle has been used to prosecute national security offences; currency offences; counterfeiting currency, stamps, seals and emblems; desecration of flags; economic crimes; forgery, fraud or perjury in connection with official documents, such as passports and visas; immigration offences and political offences.
The potential territorial sea extends 12 miles off the coast. Here the State has territorial jurisdiction, but only up to a point--the right of innocent passage still applies. The LOSC says:
Because coastal State jurisdiction is limited, even in its territorial waters, the flag State's laws still apply aboard its ships. Even on the high seas, a foreign flag vessel isn't completely exempt from the jurisdiction of other States--vessels are subject to ''visit'' and arrest under certain circumstances. LOSC also provides a right of hot pursuit. According to Article 111,
The hot pursuit of a foreign ship may be undertaken when the competent authorities of the coastal State have good reason to believe that the ship has violated the laws and regulations of that State. Such pursuit must be commenced when the foreign ship or one of its boats is within the internal waters, the archipelagic waters, the territorial sea or the contiguous zone of the pursuing State, and may only be continued outside the territorial sea or the contiguous zone if the pursuit has not been interrupted.
As a nod to the territorial principle, "The right of hot pursuit ceases as soon as the ship pursued enters the territorial sea of its own State or of a third State." States can also agree to permit another state to arrest vessels flying their flags.
As in most legal disputes each sides blames the other for acting improperly. Clearly, to determine whether the soldiers and the passengers in the ships acted legally, a complete and through investigation and legal analysis must conducted on macro and micro level of each of every act of all parties involved. This will be bring to light whether both parties act within international law. And who is legally accountable for death of the passengers and the injuries to the soldiers.
