Border crossing and imo antiterrorist measures
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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)

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Border crossing and IMO antiterrorist measures

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Border crossing and imo antiterrorist measures

Border crossing and IMO antiterrorist measures

Legal aspects


Border crossing at sea

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

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

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

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 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

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

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

Facultative jurisdictionart.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

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

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

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

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

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 8 bis

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

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

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

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


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