Why this convention was required.
- Oct 7, 1985, Italian cruise ship Achille Lauro hijacked by 4 armed terrorist.
- With some 100 mostly elderly passengers on board, in Egyptian waters.
- The hijackers demanded that Israel to free 50 Palestinian prisoners.
- To prove their determination, they shot and killed a disabled American tourist, 69-year-old Leon Klinghoffer, and threw his body overboard with his wheelchair.
- After a two-day drama, the Egyptian government, unaware that Klinghoffer had been murdered, provided the hijackers with safe passage in exchange for freeing the ship and its passengers.
- Once the murder had been discovered, US Navy F-14 fighters intercepted an Egypt Air 737 airliner flying the hijackers to freedom in Tunisia and forced it to land in Sicily. The terrorists were taken into custody by Italian authorities, were tried and convicted to long prison terms.
- But Bassam al-Asker, one of the Achille Lauro hijackers, was granted parole in 1991. Ahmad Marrouf al-Assadi, another accomplice, disappeared in 1991 while on parole. Four others, including the mastermind, Abu Abbas, were convicted in absentia and remain at large.
INTERNATIONAL CONVENTION FOR SUPPRESSION OF UNLAWFUL ACTS AGAINST THE SAFETY OF MARITIME NAVIGATION ( ROME , 10 MARCH 1988)
- Done at Rome, 10 March 1988
- Entered into force 1 March 1992
- Duration: The Convention does not set any limits on its duration.
- Number of Parties: 56.
- Depository: International Maritime Organization
- Maintenance of international peace and security and the promotion of friendly relations and cooperation among states.
- Everyone has right to life, liberty and security of person.
- Worldwide escalation of acts of terrorism.
- Unlawful acts against maritime navigation jeopardize safety of persons and property, seriously affects maritime services and undermine the confidence of peoples of world in the safety of maritime navigation.
- Occurrence of such act is a matter of grave concern to the international community as a whole.
- Urgent need to develop international cooperation between states in devising and adopting effective and practical measures for prevention of all unlawful acts against safety of maritime navigation, and the prosecution and punishments of their prepatrators.
Applicability of convention
This Convention applies
- Ship is navigating or is scheduled to navigate into, through or from waters beyond the outer limit of the territorial sea of a single State, or the lateral limits of its territorial sea with adjacent States.
- In cases where the Convention does not apply,also applies when the offender or the alleged offender is found in the territory of a State Party other than as referred.
Jurisdiction in respect of offences
State Party to take necessary measures to establish its jurisdiction over the offences, when the offence is committed:
- Against or on board a ship flying the flag of the State at the time the offence is committed; or
- In the territory of that State, including its territorial sea; or
- By a national of that State.
A State Party may also establish its jurisdiction over any such offence when:
- Committed by a stateless person whose habitual residence is in that State; or
- During its commission a national of that State is seized, threatened, injured or killed; or
- Committed in an attempt to compel that State to do or abstain from doing any act.
Duties & Responsibility of state party in concern with offences and offender as per convention :
- Once state party is satisfied of the circumstances so warrant, any state party in whose territory the offender is present, shall in accordance with its law, take him into custody or take other measures to ensure his presence for such time as is necessary to enable any criminal or extradition proceedings to be instituted.
- Such State shall immediately make a preliminary inquiry into the facts, in accordance with its own legislation.
Any person regarding whom the measures are being taken shall be entitled to:
- Communicate with the nearest appropriate representative of the State of which he is a national or which is otherwise entitled to establish such communication or, if he is a stateless person, the State in the territory of which he has his habitual residence;
- Be visited by a representative of that State.
Jurisdiction in respect of offences
- When a State Party, pursuant to this article, has taken a person into custody, it shall immediately notify the States which have established jurisdiction in accordance with article and, if it considers it advisable, any other interested States, of the fact that such person is in custody and of the circumstances which warrant his detention. The State which makes the preliminary inquiry of this article shall promptly report its findings to the said States and shall indicate whether it intends to exercise jurisdiction.
- State party in the territory of which offender is found and can’t extradite him for whatsoever reasons shall submit the case to competent territory for the purpose of prosecution.
- While being prosecuted, offender to be guaranteed of fair treatment at all stages of proceeding, including enjoyments of all rights and guarantees provided by state in which prosecution is taking.
Duties of states when receiving offender from ships
- Master of a ship of a State Party may deliver to the authorities of any other State Party any person who he has reasonable grounds to believe has committed one of the offences earlier.
- The flag State shall ensure that the master of its ship is obliged, whenever practicable, and if possible before entering the territorial sea of the receiving State carrying on board any person whom the master intends to deliver, to give notification to the authorities of the receiving State of his intention to deliver such person and the therefore.
- The receiving State shall accept the delivery, except where it has grounds to consider that the Convention is not applicable to the acts giving rise to the delivery, and shall proceed in accordance with the provisions of article . Any refusal to accept a delivery shall be accompanied by a statement of the reasons for refusal.
- The flag State shall ensure that the master of its ship is obliged to furnish the authorities of the receiving State with the evidence in the master’s possession which pertains to the alleged offence.
- A receiving State which has accepted the delivery of offender request the flag State to accept delivery of that person. If the flag State declines a request, it shall furnish the receiving State with a statement of the reasons therefore.
Other responsibility of the state party :
- To have greatest measure of assistance among them in criminal proceeding against offences including assistance in obtaining evidence.
- Mutual assistance among state party in conformity with any treaty or in such absence with national law.
State party to cooperate in prevention of such offences
- Taking all practicable measures to prevent offences in their territory.
- Exchanging information of such preventive measures in accordance with their national law.
•On 7 April 2002, an incident occurred on board a Panamanian flag vessel, M/V Tajima crewed by six Japanese and eighteen Filipinos. It was suspected that a Japanese second officer was killed by two Philippine seafarers on board the vessel which was traveling on the high seas.
•In the above situation, the Republic of Panama, as the flag State, was the only State that could exercise its criminal jurisdiction over the vessel. Neither Japan nor the Philippines could exercise their criminal jurisdictions in relation to such suspected murders on board the vessel flying the flag of another State, due to the absence of appropriate provisions in their respective domestic laws.
•On 12 April 2002, the Tajima, with two suspects kept in custody by the captain in his capacity, called at the Himeji Port located near Osaka and unloaded its cargo. Although the vessel was scheduled to depart on 14 April 2002, the operating company, and others concerned, adjusted its schedule because of their concern about the safety of its navigation with two murder suspects on board. The vessel was compelled to prolong its anchoring at Himeji Port until the suspects would be disembarked.
•About a month later, on 14 May 2002, following the official request from the Government of the Republic of Panama, the Government of Japan (the Japan Coast Guard) detained the two suspects temporarily, in accordance with the Japanese Law of Extradition. On 15 May 2002 at last the vessel departed for the next destination.
•Thus, for more than one month, the vessel was compelled to stay at the port and the captain was obliged to keep in custody the two suspects in the vessel in his capacity. The stability and constancy of maritime transport were negatively affected. The incident further caused actual great economic loss to the shipping company due to the suspension of operation of the vessel.
Point of Issue
Generally, the captain of a vessel is empowered to conduct any investigation in connection with any crime committed on board the vessel during passage. However, if the captain detains a suspect, he/she would be compelled to continue the navigation with any suspects detained on board, which would endanger the safety of navigation caused by the nature of the suspects, the structure of the vessel or the contents of the cargo. The captain will have difficulties, either physical or legal, in delivering such suspects for their detention by the States concerned, as follows.
Detention by the flag State
According to the United Nations Convention on the Law of the Sea (UNCLOS), every State has the right to sail ships flying its flag on the high seas (Article 90), and those ships shall sail under the flag of one State only and shall be subject to its exclusive jurisdiction on the high seas (Article 92, paragraph 1).
However, if an incident on board a ship occurred geographically far from the territory of its flag State, it would be physically difficult for the flag State to take any steps according to the right to exercise its criminal jurisdiction over the incident irrespective of the position of the ship, either on the high seas or in the third State’s territorial sea.
Detention by the State of nationality of the victim or suspect
(i) If the State of the suspect’s nationality has a penal code that does not extend its jurisdiction over its nationals who committed crimes outside its territory and if the State of the victim’s nationality has a penal code that does not extend its jurisdiction over the crimes whose victim is its national, neither of these States are entitled to exercise criminal jurisdiction over such crimes.
(ii) Even when the former’s penal code covers crimes committed by its national outside the country or when the latter’s penal code covers the crimes whose victim is its national, these States would not be able to extend their criminal jurisdiction if they were physically far from the vessel in question, as is the case for the flag State above mentioned in paragraph (a).
Measures taken by a port State
(i) According to the UNCLOS (Article 27, paragraph 5), except for the cases of the enforcement jurisdiction of a port State with regard to the protection of the marine environment and of the enforcement jurisdiction with regard to fishing in the EEZ vested in the coastal State, the coastal State (port State) may not take any steps on board a foreign ship passing through the territorial sea to arrest any person or to conduct any investigation in connection with any crime committed before the ship entered the territorial sea, if the ship, proceeding from a foreign port, is only passing through the territorial sea without entering internal waters.
(ii) This provision leads us to presume that, when a foreign ship with suspects on board is in the internal water including, inter alia, when it is anchoring at the port, the coastal State (port State) could exercise the criminal jurisdiction in connection with crimes committed in the high seas on board such ship, if the coastal State (port State) has national legislation that extends its jurisdiction over the criminal acts concerned committed outside its territory.
In addition, the UNCLOS allows the coastal State (port State) to exercise the criminal jurisdiction (arrest the suspects, for example) on board a foreign ship passing through its territorial sea when the master of the ship (captain) or the diplomatic agent or consular officer of the flag State requests the assistance of the local authorities (Article 27, paragraph 1, see paragraph 3, below).
(iii) However, a coastal State (port State) is not obliged to take temporary custody of a suspect even if the captain of the ship so requested.