TRANSNATIONAL DIMENSIONS OF MARITIME CRIME

Transcription

1 TRANSNATIONAL DIMENSIONS OF MARITIME CRIME Doug MacKinnon Australian Federal Police, NSW Paper presented at the Transnational Crime Conference convened by the Australian Institute of Criminology in association with the Australian Federal Police and Australian Customs Service and held in Canberra, 9-10 March 2000 This paper is an amended version of the Paper Jurisdiction and the Use of Ships for Crimes at Sea: An Australian Perspective, presented at the Joint meeting of the CSCAP working Groups on Transnational Crime and Maritime Cooperation at University of Wollongong, Wollongong, NSW, Australia

2 Introduction International criminals do not recognise borders and readily violate national sovereignty. Accordingly States are attempting to rely more and more on international and regional law enforcement cooperation to combat criminal enterprise. i International criminals trade in commodities just like other traders. If an illicit product falls by the wayside there is another in reserve to take its place. They exploit opportunities and operate on their own ground, maintaining security and withdrawing when disadvantaged. They use sophisticated means and talented people to obtain information that is then used to plan illegal enterprises. They view their business as a kind of war with law enforcement authorities, attacking legislative and law enforcement weaknesses. Within the broad framework established by the term Transnational Crime are criminal activities connected to the sea which are able to be grouped under the heading of Maritime Crime. At present, maritime crime offences are not subject of a neatly coordinated hierarchy of requirements. Criminal law is perceived as the laws reflecting prohibited conduct such as murder, the traffic in illicit narcotics, piracy, robbery and theft, as well as offences against the person or property. Criminal law is also used to regulate conduct of a type viewed as being quasi-criminal, regulatory or public welfare offences including acts or deeds harmful to the environment such as pollution of the oceans or fishing in prohibited areas. The laws of many of the States in the Asia Pacific Region that deal with these issues can impose criminal liability for such behaviour. It is important to recognise that not only is maritime criminal activity often multi-jurisdictional in nature but also, that most - if not all - illicit activities connected to the sea are shore based. This paper deals with ships and particular criminal activities at sea as well as developments in cooperative and collaborative law enforcement practices and how these may impact on the Region. The first Part of the paper provides an overview of the heads of jurisdiction under international law and the rights and responsibilities of states in respect of maritime zones of jurisdiction. The particular status of vessels and the development of the Port State Regimes are also addressed. For the purposes of this paper, "ship" is defined as a vessel of any type whatsoever not permanently attached to the sea-bed, including dynamically supported craft, submersibles, or any other floating craft. ii The second Part addresses specific types of crime along with the potential for the enhancement of existing frameworks established for crime prevention and enforcement. Of importance is the recognition that the development of international information exchange and intelligence is essential to the enhancing the abilities of States to successfully deter and combat maritime crime. PART I: International Law and Jurisdiction International Law Jurisdiction Concepts Prior to addressing the special status of ships, it is important to review the principal international law concepts that provide the basis for maritime law enforcement activities, these being the jurisdictional bases to both proscribe conduct and to enforce those proscriptions. Under general international law, jurisdiction to proscribe conduct must be premised upon one or more of the following principles: 1. Territorial Principle. This principle recognises that a nation may proscribe conduct in its sovereign territory. Thus Australia may proscribe an act as criminal, ie, possession, use, importation or distribution of narcotics or psychotropic substances, that occurs in Australian territory. This includes the territorial sea. 2

3 2. Nationality Principle. Irrespective of their location a sovereign state has jurisdiction to proscribe as criminal conduct by its own nationals. 3. Universal Principle. This principle recognises that certain conduct is so heinous and so widely condemned that all nations may both proscribe and punish its occurrence, no matter the nationality of the perpetrator or the place where the offence takes place. Piracy, the slave trade, genocide, grave war crimes and hostage taking are regarded as universal crimes subject to universal jurisdiction. iii 4. Passive Personality Principle. This principle focuses on the nationality of the victim rather than that of the perpetrator. Although disputed by some as a valid basis of jurisdiction, the passive personality concept has been successfully invoked in domestic courts. A case in point is the current litigation over the extradition of former Chilean President Pinochet, from the United Kingdom by Spanish authorities for alleged offences against Spanish citizens in Chile. 5. Protective Principle. Lastly, international law recognises the competency of a nation to proscribe as criminal conduct that may have a significantly adverse impact on its national security or governmental processes. Jurisdiction to Enforce Assuming that a State has jurisdiction to proscribe certain conduct as criminal it is then necessary to establish whether it has the jurisdiction to enforce the laws proscribed. In the maritime environment, this will depend on the nationality, status and location of the ship whose behaviour is questionable. Flag State Jurisdiction Every State has the right to sail ships flying its flag on the high seas. iv Each State is required to fix the conditions for granting its nationality and the right to fly its flag as well as the registration of ships in its territory. There must exist a genuine link between the State and the ship. v Ships are required to sail under one flag vi and are subject to the exclusive jurisdiction of that flag State on the high seas, save in exceptional cases expressly provided for in international treaties or in the Law of the Sea Convention (LOSC). The flag State is required to effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag. Jurisdiction under municipal law must be assumed over each ship flying its flag and its master, officers and crew in respect of administrative, technical and social matters concerning the ship. A State that has granted a ship the right to fly its flag is required to issue the ship with documents to that effect. vii A ship may not change its flag during a voyage or while in a port of call, save in the case of a real transfer of ownership or change of registry. It is important to note that a ship which sails under the flags of two or more States, using them according to convenience, may not claim any of the nationalities in question with respect to any other State, and may be assimilated to a ship without nationality. viii As a stateless vessel such a ship is subject to the jurisdiction of all nations. The law of the sea also considers stateless, vessels that claim no nationality or, display contradictory or inconsistent indicators of nationality, or change flags in mid-voyage. ix States are required to take such measures as are necessary to ensure the safety of the ships carrying their flag. This responsibility relates to the construction, equipment and seaworthiness of ships as well as the manning of ships, labour conditions and the training of crews. If a vessel is reported by another State where there are clear grounds to believe that 3

4 control and jurisdiction has not been properly exercised the flag State is required to investigate and, if appropriate, take any action necessary to remedy the situation. The rules concerning such incidents are predominantly set down in the Conventions of the International Maritime Organization (IMO). States are required to cooperate in the conduct of any inquiry held by another State into any such marine casualty or incident of navigation. x Generally speaking, a State has jurisdiction to enforce its laws against its own flag vessels wherever they may be located. As a matter of comity and respect of foreign sovereignty, enforcement action is ordinarily not undertaken in someone else's internal waters, territorial seas, or archipelagic waters. xi Immunities and other arrangements exist for warships and other government ships operated for non-commercial purposes. Maritime Zones of Jurisdiction The jurisdiction of a coastal State over its maritime zones generally diminishes the further an incident or issue occurs from the coast. The maritime zones as they exist today are Internal Waters, Territorial Sea, Contiguous Zone, EEZ and Continental Shelf. Internal Waters - The waters lying on the landward side of straight territorial sea baselines drawn along irregular parts of the coast are Internal Waters. These include the gulfs or bays whose points of entrance are less than twenty four nautical miles wide, as well as the bays or gulfs which exceed the twenty four nautical miles at their entrance but have been historically regarded as internal. A State exercises full sovereignty over internal waters. Prima facie, a ship, by entering the internal waters of a foreign state (unless in distress and obliged to do so), places itself within the territorial jurisdiction of that state and therefore subject to the operation of its laws and the competence of its courts. xii It also places itself under the protection of the jurisdiction. Territorial sea - The outer limit of the territorial sea is 12 nautical miles (NM) seaward of the baseline. A State has sovereignty over the territorial sea. It may therefore impose comprehensive controls in this area, with the one major exception that it must respect the right of innocent passage of foreign vessels.as a general rule criminal jurisdiction is not exercised on board a foreign ship passing through the territorial sea in order to arrest any person or to conduct any investigation in connection with any crime committed on board the ship during its passage. The exceptions to this are: xiii 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 above provisions do not affect the coastal States rights to take any steps authorised by its laws for the purpose of an arrest or investigation on board a foreign ship passing through the territorial sea after leaving internal waters. In such circumstances, if the master of the vessel requests, authorities must notify a diplomatic agent or consular officer of the flag State before taking any steps, and are to facilitate contact between such agent or officer and the ship s crew. In cases of emergency this notification may be communicated while the measures are being taken. xiv 4

5 Contiguous zone - This is the area between 12 NM and 24 NM seaward of the baseline. In the contiguous zone, the coastal State may take limited enforcement measures in relation to customs, fiscal, sanitary and immigration matters. Exclusive economic zone ('EEZ') - This is the area between the lines 12 NM and 200 NM seaward of the territorial sea baselines. In this area the coastal State has sovereign rights to explore and exploit the living and non-living resources, and a corresponding obligation to protect and conserve the marine environment. It is important to note that the High Seas regime established at Part VII of LOSC (Articles ) and other pertinent rules of international law apply to the EEZ in so far as they are not incompatible to Part V of the convention (EEZ). xv Continental shelf This is the area between 12 NM and 200 NM seaward of the territorial sea baseline (that is, much of the same area as the EEZ) and any areas of physical continental shelf beyond 200 NM. Coastal States have sovereign rights to explore and exploit the living and non-living resources of the shelf as well as a corresponding obligation to protect and conserve the resources of the continental shelf. Right of Visit LOSC establishes the right of visit by a warship on the high seas whereby a warship which encounters a foreign ship, other than a ship entitled to complete immunity, is not justified in boarding it unless there is reasonable ground for suspecting that: (a) (b) (c) (d) (e) the ship is engaged in piracy; the ship is engaged in the slave trade; the ship is engaged in unauthorized broadcasting and the flag State of the warship has jurisdiction under article 109; the ship is without nationality; or though flying a foreign flag or refusing to show its flag, the ship is, in reality, of the same nationality as the warship. The warship or any other duly authorized ships or aircraft clearly marked and identifiable as being on government service may proceed to verify the ship's right to fly its flag by sending a boat under the command of an officer to the suspected ship. If suspicion remains after the documents have been checked, it may proceed to a further examination on board the ship which must be carried out with all possible consideration. If the suspicions prove to be unfounded, and provided that the ship boarded has not committed any act justifying them it is to be compensated for any loss or damage that may have been sustained. These provisions apply mutatis mutandis to military aircraft. xvi Right of hot pursuit 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. It is not necessary that, at the time when the foreign ship within the territorial sea or the contiguous zone receives the order to stop, the 5

6 ship giving the order should likewise be within the territorial sea or the contiguous zone. If the foreign ship is within a contiguous zone the pursuit may only be undertaken if there has been a violation of the rights for the protection of which the zone was established. The right of hot pursuit applies mutatis mutandis to violations in the EEZ or on the continental shelf, including safety zones around continental shelf installations. Hot pursuit is not deemed to have begun unless the pursuing ship has satisfied itself by such practicable means as may be available, that the ship pursued, or one of its boats or other craft working as a team and using the ship pursued as a mother ship, is within the limits of the territorial sea, or, as the case may be, within the contiguous zone or the EEZ or above the continental shelf. The pursuit may only be commenced after a visual or auditory signal to stop has been given at a distance that enables it to be seen or heard by the foreign ship. Hot pursuit may be exercised only by warships or military aircraft, or other ships or aircraft clearly marked and identifiable as being on government service and authorised to that effect. 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. xvii PART II: Ships and Transnational Crime Ships and Drug Trafficking Regionally, law enforcement agencies attempt to attack the supply base of illicit drugs, whilst on the demand side, campaigns against drug abuse by health authorities attempt to reduce drug consumption. The methods used for the trafficking of narcotics are diverse and limited only to the ingenuity of the criminals involved with the enterprise. Major drug importations are achieved by sea through: secretion in the structure of shipping containers; secretion in containerised goods; secretion in vessel compartments; concealment in trawler cargo; concealment in coastal traders or yachts; transfers at sea from mother ships to trawlers; detachable containers trailed by vessels; crew or accomplices bringing commodities ashore; and the throwing of the narcotics overboard for local trawler or yacht recovery. Illicit drug traffickers use vessels registered with States that offer a convenient register. Often the traffickers wait outside the territorial jurisdiction for the arrival of their accomplices from the coastal State jurisdiction. They then transfer the goods to the accomplice vessel in order that the final stage of the importation can be effected. The mother ship remains on the High Seas coming nowhere near the Coastal States Territorial Sea or Contiguous Zone. They believe that they are safe, but this can change. 6

7 International Arrangements Maritime Drug Enforcement The High Seas are subject of Part VII of the 1982 Law of the Sea Convention (LOSC). Article 108 allows for action to be taken by States in respect of the illicit traffic in narcotic drugs or psychotropic substances. xviii Most States including those offering a "Flag of Convenience" register are also signatories to the UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, The importance of this Convention to law enforcement cannot be understated. It provides the means by which States can take enforcement action in international waters. xix The ability to act on the High Seas in cooperation with flag States to suppress the traffic of illicit drugs has the potential to be a major deterrent to traffickers. For this Convention to be effective, and it is in the Region s interest, it must be supported by a capacity to act effectively and a capability to communicate efficiently with authorising flag States when the need arises. Simple and effective procedures should be developed. Article 17 of the UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances provides the framework, in the absence of treaties, under which States may act when confronted by the traffic of illicit drugs on the High Seas. There is a need to go beyond this framework and enter into bilateral and multilateral agreements, particularly with States that operate convenient registers. xx Fraud and Ships Charter party fraud is common place, particularly in third world and Asian countries. This form of fraud is a simple low risk way to turn a quick profit. A shop front office is established and the criminals hire a charter vessel often for a nominal fee. Cheap cargo space is advertised with fees being collected in advance. The vessel is loaded and sails off with legitimately documented cargo. The shop front is immediately closed and the criminals disappear with their advance fee. The nature of the charter industry is such that it consists of many small players over many countries and is difficult to police. Manufacturers and forwarders are looking for the best deals and do not necessarily conduct adequate background checks. The cheapest price may not always be the best. xxi Cargo deviations, common in the 1980s, continue in the region today. Old ships take on legitimate cargo and do not arrive at the nominated destination. Instead they appear elsewhere. The cargo is sold and the vessel scuttled or re-registered. This type of crime occurs all over the world. Cargo theft on its own often targets particular containers with high value cargo. There is concern in Southeast Asia about phantom ships (vessels with false identities). A ship is registered with false information about tonnages, dimensions, previous owners and registration names. Officials do not always run a check of the details or they are corrupt. xxii The owners of phantom ships are usually shelf companies. The ships may be purchased legally or hijacked. Cargoes are obtained through agents offering cheap rates. They may also operate legitimately for a while until a valuable cargo is obtained, and then the operation is executed swiftly and without warning. Once the crime is detected the owners and crew disappear. Some crews of Indonesian origin have been consistently involved in this activity. Criminals are obtaining phantom ships and using them to smuggle illegal immigrants to other States. The use of phantom ships makes it very difficult to trace the organisers of these lucrative schemes. A recognised source for phantom ships is piracy. 7

8 Piracy The Oceans and the Law of the Sea Report of the Secretary-General, United Nations of October 1998 identified that the continuing increase in acts of piracy and armed robbery against ships and the increasing violence of the attacks are a matter of great concern to the shipping industry. The seriousness of the problems has been brought to the attention of a number of forums, notably IMO, the Meeting of States Parties to UNCLOS and the General Assembly of the United Nations. The increase in the number of incidents, in particular considering that a great number go unreported, and the violence of some attacks require urgent attention. The paucity of trained personnel, the scarcity of modern equipment, the obsolescence of much national legislation, as well as the weak maritime law enforcement capability of many States have rendered them unable to deal with crimes at sea. xxiii The offence of Piracy in international law provides the means to fill the vacuum over aspects of criminal behaviour, at sea that are beyond the limits of a State s territorial jurisdiction. The duty for all States to cooperate in the repression of piracy on the high seas or in any other place outside the jurisdiction of any State is established at Article 100 of LOSC. Piracy includes any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed against another ship or aircraft, or against persons or property on the high seas or in a place outside the jurisdiction of any State. Further, any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft and any act of inciting or of intentionally facilitating conduct of the type mentioned above also constitutes piracy. xxiv The retention or loss of nationality of a pirate ship or aircraft is subject to the law of the State from which its nationality was derived. xxv 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. xxvi A seizure on account of piracy may be carried out only by warships or military aircraft, or other ships or aircraft clearly marked and identifiable as being on government service and authorized to that effect. xxvii 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. xxviii Daring piracy attacks continue to be a relatively common event whilst a ship is under way. Crews are tied up, or worse, with the attacked vessel becoming a major shipping hazard. Murder often accompanies piracy. Piracy success rate is better than 25% and the cost is high in terms of theft, damage, insurance and compensation. Piracy frequently occurs in the South China Sea, Straits of Malacca, Singapore, Indonesia, West Africa, and in the seas adjacent to the Philippines. Most acts of a piratical nature that occur in Southeast Asia, however, take place in territorial waters. xxix Sea robbery frequently occurs whilst a vessel is in port. Gangs of armed criminals board a target vessel and open selected containers of valuable cargo. In some ports little help is available from shore based law enforcement agencies. In many cases there must be complicity with persons who have good knowledge of the cargoes. Batam Arrest The organised and transnational nature of piracy was recently highlighted when MT PULAU MAS a DWT 399 ton tanker and crew were detained in Batam, in November 1998, following an Indonesian intelligence driven operation. The ship is believed to have been a piracy operations centre with items seized including, handcuffs, masks, immigration stamps, ships 8

9 stamps and cartons of different coloured paint. Documents were found that were ready to be used on newly hijacked vessels. On the 26 August 1999 an Indonesian court jailed a Singaporean for six years. He was accused of masterminding a series of piratical attacks on shipping in local seas, as well as being responsible for the hijacking of tankers in the Malacca and Singapore Straits. Indonesian authorities assert the network operated from China, Hong Kong, Philippines and Malaysia. Six of the 21 incidents investigated by the authorities were acknowledged as having involved the syndicate. The ships, including tankers, and their cargoes were sold in China where the head of the syndicate is said to be. xxx Cheung Son Attack Modern piracy is violent, bloody and ruthless. It is made all the more fearsome because its victims know they are alone and defenceless. In late 1999, one Indonesian and 37 Chinese were tried in Shanwei, China, accused of being part of a pirate gang that murdered the 23- strong crew of the Cheung Son. The Cheung Son, a Hong Kong flagged bulk carrier, carrying a cargo of furnace slag, was hijacked as it sailed in the Taiwan Strait. The ship was the last of three vessels attacked by a pirate group between September and November The court heard that the ship used by the gang to attack the other vessels was formerly a border defence and customs vessel hired under a government contract from one of the accused. Dressed as Customs and public security officers, the pirates boarded the ship and tied up the mainland Chinese crew, who 10 days after the pirates attacked the ship, were beaten to death, tied to rocks and then thrown overboard. Several bodies were later washed ashore or recovered in fishermen's nets. It is believed the vessel was sold twice after the attack its whereabouts are still believed to be unknown. The pirates were convicted with thirteen, including the Indonesian being executed for their crimes in February It is important to note that cooperation between Indonesia, Malaysia and Singapore and through ASEAN was seen as having significantly reduced the incidence of piracy and sea robbery in the Malacca and Singapore Straits. This was recognised by the Inter Sessional Group (ISG) on Confidence Building Measures (CBMs) of the Asian Regional Forum (ARF). The ISG also observed that onshore policing combined with maritime police action in territorial waters were the most effective weapons against piracy and sea robbery. xxxi Terrorism at Sea In March 1992 the IMO Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation 1988 came into force. xxxii The purpose of the Convention is to ensure that action can be taken against persons committing offences against ships. Offences include the seizure of ships by force, acts of violence against persons on ships and the placing of devices onboard that are likely to damage or destroy a ship. The Convention requires States parties to make the identified offences punishable under their domestic laws and requires them to extradite and submit for prosecution offenders found within their jurisdiction. There are now 42 Contracting States to the Convention and 38 Contracting States to the Protocol. xxxiii China is the only East Asian Party to the Convention. This relatively low level of participation in the Region would seem to be a pity as the potential application of the convention to acts of sea robbery and ship hijacking would provide those responsible for law enforcement with an appropriate tool. At the same time it would likely be a strong crime prevention initiative as those responsible for such criminal behaviour would be confronted by a stronger and ideally more effective legal regime. xxxiv 9

10 Ships and Marine Pollution In its public dimension international law is concerned with the interrelationship of States and often focuses on the regulation and control of global industries. Marine pollution was of little consequence in international relations until the second half of this century. Incidents of marine oil pollution like the Torrey Canyon, Amoco Cadiz and Exxon Valdez oil spills have been catalysts for change in the manner in which the world community deals with such events. Regimes have been developed to aid in the prevention of pollution and the enforcement of international maritime agreements. These regimes have significantly increased a States right to exercise jurisdiction over foreign flagged vessels within its EEZ and in some instances, on the high seas. There has also been an increase in the responsibility of States for the establishment of prevention and enforcement practices and procedures in accordance with international conventions. Port State Control Jurisdiction (PSC) Developments in the PSC regime have been an important element in international efforts to manage the problem of substandard ships. It involves the inspection by officers of a national maritime authority of foreign vessels visiting the State s ports to ensure compliance with international maritime safety and marine pollution conventions. xxxv It is based on the rule of international law, according to which a State exercises full jurisdictional powers within its internal waters and has the right to deny access to such waters. It supplements the primary responsibility of the flag State for ensuring the compliance of ships flying its flag with relevant international conventions. This regime is an important area of regional maritime cooperation. An Asia-Pacific Memorandum of Understanding (MOU) on PSC has been signed by seventeen countries providing for regional cooperation in ship inspections, development and maintenance of a regional database and agreement on target inspection rates for foreign ships visiting the ports of participating countries. xxxvi An effective system of PSC covering East Asian waters means unsafe or sub-standard ships will find it difficult to trade in the region. Working in tandem with other regional and global cooperative law enforcement initiatives and arrangements PSC would likely have a flow on effect in countering piracy, the hijacking of ships, phantom ships, the trafficking in humans and drug trafficking. Conclusion Maritime crime is a unifying theme that affords an opportunity to deal more effectively with the fragmentation in approach of current law enforcement efforts against such crime, by expanding on existing regimes as well as developing strategic and tactical objectives based on cooperative law enforcement and crime prevention. The enhancement of existing domestic and international regimes provides an opportunity to be more effective in the fight against maritime crime. 10

11 i McFarlane, John. 'Transnational Crime and National Security, a paper presented to the Crime and Australian National Security seminar jointly sponsored by the Australian Defence Studies Centre and the AFP, ADFA, Canberra, 1 December ii Article 1, Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation 1988, (Rome), entered into force iii Grunawaldt R.J., "Law Enforcement: United States Navy/ Coast Guard Cooperation in the War on Drugs at Sea, in Doug MacKinnon and Dick Sherwood (eds), Policing Australia s Offshore Zones; Problems and Prospects, Wollongong Papers on Maritime Policy No. 9, (1997) pp iv Article 90, United Nations Convention on the Law of the Sea 1982 (LOSC), entered into force on 16 November v Article 90 LOSC. vi Save in exceptional cases expressly provided for in international treaties or LOSC. vii Article91, LOSC. viii Article92, LOSC. ix Grunawaldt R.J., op.cit p. 6. x Article 94 LOSC. xi Grunawaldt J. loc.cit. p.5. xii D.W. Greig, 1976, p.287, International Law, Second Edition, Butterworths, London. xiii Article 27 LOSC. xiv Article 27(3) LOSC. xv Article58, LOSC, Rights and duties of other States in the exclusive economic zone 1. In the exclusive economic zone, all States, whether coastal or land-locked, enjoy, subject to the relevant provisions of this Convention, the freedoms referred to in article 87 of navigation and overflight and of the laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to these freedoms, such as those associated with the operation of ships, aircraft and submarine cables and pipelines, and compatible with the other provisions of this Convention. 2. Articles 88 to 115 and other pertinent rules of international law apply to the exclusive economic zone in so far as they are not incompatible with this Part. 3. In exercising their rights and performing their duties under this Convention in the exclusive economic zone, States shall have due regard to the rights and duties of the coastal State and shall comply with the laws and regulations adopted by the coastal State in accordance with the provisions of this Convention and other rules of international law in so far as they are not incompatible with this Part. xvi Article 110 LOSC. xvii Article 111, LOSC. xviii Article 108: Illicit traffic in narcotic drugs or psychotropic substances. LOSC: 1. All States shall co-operate in the suppression of illicit traffic in narcotic drugs and psychotropic substances engaged in by ships on the high seas contrary to international conventions. 2. Any State which has reasonable grounds for believing that a ship flying its flag is engaged in illicit traffic in narcotic drugs or psychotropic substances may request the co-operation of other States to suppress such traffic. xix Article 17: Illicit traffic by sea. UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances: 1. The Parties shall co-operate to the fullest extent possible to suppress illicit traffic by sea, in conformity with the international law of the sea. 2. A Party which has reasonable grounds to suspect that a vessel flying its flag or not displaying a flag or marks of registry is engaged in illicit traffic may request the assistance of other Parties in suppressing its use for that purpose. The Parties so requested shall render such assistance within the means available to them. 3. A Party which has reasonable grounds to suspect that a vessel exercising freedom of navigation in accordance with international law and flying the nag or displaying marks of registry of another Party is engaged in illicit traffic may so notify the flag State, request confirmation of registry and, if confirmed, request authorisation from the flag State to take appropriate measures in regard to that vessel. 4. In accordance with paragraph 3 or in accordance with treaties in force between them or in accordance with any agreement or arrangement otherwise reached between those Parties, the flag Slate may authorise the requesting State to, inter alia: (a) Board the vessel (b) Search the vessel (c) If evidence of involvement in illicit traffic is found, take appropriate action with respect to the vessel, persons and cargo on board. 5. Where action is taken pursuant to this article, the Parties concerned shall take due account of the need not to endanger the safety of life at sea, the security of the vessel and the cargo or to prejudice the commercial and legal interests of the flag State or any other interested State. 11

12 6. The flag State may, consistent with its obligations in paragraph 1 of this article, subject its authorization to conditions to be mutually agreed between it and the requesting Party, including conditions relating to responsibility. 7. For the purposes of paragraphs 3 and 4 of this article a Party shall respond expeditiously to a request from another Party to determine whether a vessel that is flying its flag is entitled to do so, and to requests for authorisation made pursuant to paragraph 3. At the time of becoming a Party to this Convention, each Party shall designate an authority or, when necessary, authorities to receive and respond to such requests. Such designation shall be notified through the Secretary General to all other Parties within one month of the designation. 8. A Party which has taken any action in accordance with this article shall promptly inform the flag State concerned of the results of that action. 9. The Parties shall consider entering into bilateral or regional agreements or arrangements to carry out, or to enhance the effectiveness of, the provisions of this article. 10. Action pursuant to paragraph 4 of this article shall be carried out only by warships or military aircraft, or other ships or aircraft clearly marked and identifiable as being on government service and authorized to that effect. 11. Any action taken in accordance with this article shall take due account of the need not to interfere with or affect the rights and obligations and the exercise of jurisdiction of coastal States in accordance with the international law of the sea. xx NOTE: It was most recently underscored by the General Assembly in resolution S-20/4 on "Measures to enhance international cooperation to counter the world drug problem", which the Assembly adopted at its twentieth special session devoted to combating the world drug problem (8-10 June 1998). Part C (Measures to promote judicial cooperation), section VI of the resolution, addresses "illicit traffic by sea" and recommends that States, inter alia, negotiate and implement bilateral and multilateral agreements to enhance cooperation in combating the illicit drug traffic by sea in accordance with article 17 of the 1988 Convention; promote regional cooperation in maritime drug law enforcement by means of bilateral and regional meetings; cooperate with other States through multilateral training seminars; and promote common maritime law enforcement procedures through the use of the maritime drug law enforcement training guide of the United Nations International Drug Control Programme (UNDCP). In the same resolution, the General Assembly also recommended that States review communication channels and procedures between competent authorities to facilitate coordination and cooperation to ensure rapid responses and decisions, and provide training to law enforcement personnel in maritime drug law enforcement, including the identification and surveillance of suspicious vessels, procedures for boarding, searching techniques and drug identification. --(Extract from -Report of the Secretary-General, Oceans and the law of the sea, A/53/456, Agenda item 38 (a), Fifty-third session, United Nations General Assembly, 5 October 1998.) xxi Doug MacKinnon and Paul Schwerdt, The Risk and Threats of Criminal Activity in Australia s Offshore Zones, in Doug MacKinnon and Dick Sherwood (eds), Policing Australia s Offshore Zones; Problems and Prospects, Wollongong Papers on Maritime Policy No. 9, (1997) p.65. xxii Various consulates including the Panamanian Consulates in Hong Kong and Bangkok and the Honduran Consulate in Singapore have allegedly issued false registration certificates. xxiii Report of the Secretary-General, Oceans and the law of the sea, A/53/456, Agenda item 38 (a),fifty-third session, United Nations General Assembly, 5 October xxiv Article 101, LOSC. xxv Article 104, LOSC. xxvi Article 105, LOSC. xxvii Article 107, LOSC. xxviii Article 105, LOSC. xxix P. Chalk, Contemporary Maritime Piracy in Southeast Asia. xxx Piracy and Armed Robbery against Ships. Report for the Period 1 January 30 September 1999, ICC International Maritime Bureau, 15 October xxxi Co-Chairmen's Summary Report of the Meetings of the ARF Intersessional Support Group on Confidence Building Measures held in Bandar Seri Begawan, Brunei Darussalam on 4-6 November 1997 and in Sydney, Australia on 4-6 March xxxii This Convention has been extended by Protocol to also cover fixed oil and gas platforms such as those used for offshore exploration and exploitation. xxxiii Data received from Legal Branch, Treaties Secretariat, Foreign Affairs and Trade, Canberra, Australia. 4 November xxxiv Sam Bateman and Doug MacKinnon, The Role of Port States to Suppress Acts of Piracy in their Waters, presented at the Third International Meeting on Piracy and Phantom Ships, Kuala Lumpur, 1-2 June

13 xxxv For comprehensive information on this regime see; Kasoulides G.C., Port State Control and Jurisdiction; Evolution of the Port State Regime, Martinus Nijhoff Publishers, Dordrecht, The Netherlands, xxxvi Tokyo MOU : The Maritime Authorities of; Australia New Zealand Canada Papua New Guinea People's Republic of China Philippines Fiji Russian Federation Hong Kong, China Republic of Singapore Indonesia Solomon Islands Japan Thailand Republic of Korea Republic of Vanuatu Malaysia Socialist Republic of Vietnam 13