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<< Return to previous page | House of Representatives Standing Committee on Social Policy and Legal Affairs Navigation: Previous Page | Contents | Next Page Appendix D – Legal Advice10 May 2013 Mr Graham Perrett MP Dear Mr Perrett BACKGROUND 2. The Committee is currently conducting an Inquiry into the arrangements surrounding crimes committed at sea, and has sought confidential legal advice from the Australian Government Solicitor to inform the inquiry. In particular, the Committee has asked for advice on Australia's right to legislate on mandatory measures to improve passenger safety on board passenger ships and its jurisdiction over the reporting and investigation of criminal acts on board ship. 3. As mentioned in your request for advice, s 112 of the Navigation Act 2012 (Navigation Act) confers power to make regulations concerning passenger vessels. Such regulations may apply to both regulated Australian vessels and foreign vessels. However, their application to foreign vessels is limited by s 9 of the Navigation Act, which provides that the master or owner of a foreign vessel does not commit an offence or contravene a civil penalty provision, in relation to the vessel, unless, at the time when the conduct constituting the alleged offence or contravention occurs, the vessel is: 4. Related to this, and with reference to the provisions of the United Nations Convention on the Law of the Sea[1] (UNCLOS), the Committee is seeking advice as to whether:
SUMMARY OF ADVICE 5. The rules of international law on this subject are far from clear. Our conclusions in this advice are based on the application of certain basic principles of international law in a way that in our view is both logical and reasonable. 7. However, we think that there is a substantial risk that the imposition of conditions, and denial of port access for failure to comply with them, would be considered to breach international law if they appear to be aimed at asserting Australian jurisdiction in circumstances where such jurisdiction is not recognised according to the general principles of international law, or at overriding the concurrent jurisdiction of other States (particularly the flag State). (These might be, for example, conditions that would prevent the flag State from investigating offences on board the ship, or that would impose requirements in relation to the investigation of incidents outside
Australia that do not involve Australian nationals.) 8. The imposition of conditions requiring ships to have particular equipment or structural features (eg CCTV, peepholes in cabin doors) or to carry crew with particular training are also likely to be regarded as going beyond what Australia is entitled to require as a condition of port access. 9. If the IMO adopts guidelines on dealing with crimes on ships with broad support of the States members, and particularly if the relevant flag States support their adoption, then there would probably be good arguments that it is reasonable for
Australia to make it a condition of entry to Australian ports that the owners/operators
of a cruise ship have adopted those guidelines as part of the normal practice for the
operation of the vessel, at least for incidents over which Australia has concurrent
jurisdiction. 10. Before imposing conditions of entry to Australian ports, it would be necessary to consider whether doing so is consistent with Australia's obligations under
international trade law, and under treaties containing provisions on port access,
such as the Convention on the international Regime of Marmme Ports (1923
Convention)[2] and bilateral friendship, commerce and navigation treaties. REASONS General principles relating to jurisdiction 11. The questions you have asked raise issues concerning the jurisdiction of States under international law. There are two issues to consider, in relation to a State's jurisdiction under international law: a State's right to impose rules in relation to conduct (prescriptive jurisdiction); and a State's right to enforce its law in the event of a breach of such rules (enforcement jurisdiction).[3] A State that has the power to legislate in relation to particular conduct does not necessarily have a power of enforcement with respect to that conduct. This advice focuses principally on prescriptive jurisdiction. As necessary background to our answer to your specific questions, the general principles relating to jurisdiction under international law are described, very briefly, below. Territorial jurisdiction 12. Under international law, territoriality is the primary basis for jurisdiction. Within its territory, a State may apply and enforce its law in relation to both its own nationals and non-nationals. In general terms, a State has territorial jurisdiction over its internal waters and, subject to an important exception for innocent passage of foreign ships, over its territorial sea. Maritime zones beyond its territorial sea (contiguous zone, exclusive economic zone (EEZ), continental shelf, high seas) are not part of its territory.[4] Nationality jurisdiction 13. International law also recognises other secondary bases of jurisdiction, apart from territoriality. The most generally accepted is nationality. A State has prescriptive jurisdiction over its nationals when they are abroad, but does not have enforcement jurisdiction in another State's territory. Prescriptive jurisdiction on the basis of nationality is concurrent with the primary jurisdiction of the territorial State. Therefore, China, for example, may impose laws that apply to the conduct of Chinese nationals while they are in Australia, but cannot enforce those laws against its nationals while they are in Australian territory. Australian law will also apply to the conduct in question, concurrently with Chinese law. Jurisdiction other than territorial and nationality jurisdiction 14. Generally, a State does not have prescriptive jurisdiction over persons who are not its nationals and who are not within its territory. However, there are some circumstances where such jurisdiction is recognised.[5] Arguable grounds for jurisdiction include the 'protective security' principle (jurisdiction over extra-territorial acts of non-nationals to protect the State's vital security interests, territorial integrity or political independence[6]); the 'passive personality' principle (jurisdiction over a non-national in relation to acts taking place outside the State if those acts harm a national of the State[7]); and cases of 'universal jurisdiction' In relation to a limited number of crimes such as piracy.[8] However, the scope of most of these further bases for jurisdiction remains uncertain. 15. This advice does not deal with the extent to which Australia can or should assert extraterritorial jurisdiction on any of these bases. We point out that any decision to do so needs to take account of the government's view of the current state of international law on the Issue, and a broad range of related considerations. These include that Australia's assertion of a particular basis of jurisdiction in one context may make it difficult for Australia to object to other States asserting similar jurisdiction over Australian nationals on Australian vessels or in Australian territory in a similar or different context. We note that the Crimes at Sea Act 2000[9] and the Criminal Code[10]require the Attorney-General's consent to prosecutions of foreign nationals for extra-territorial offences, which provides a means of avoiding an exercise of jurisdiction that may be excessive in the particular circumstances. Law of the sea and questions of jurisdiction 17. A fundamental concept is flag State jurisdiction. Flag State jurisdiction can be regarded as a form of nationality jurisdiction.[11] The flag of a ship establishes its nationality.[12] Article 92(1) of UNCLOS states that, on the high seas, where no State has territorial jurisdiction, the flag State has exclusive jurisdiction over the vessel. However, other States may have concurrent jurisdiction in relation to persons on board the vessel. In relation to the conduct of a national of one State who is on a ship flagged to another State, both States have prescriptive jurisdiction, but Churchill and Lowe note that 'the expectation is that in this case of concurrent jurisdiction it is the flag State whose jurisdiction has primacy (see, eg, [UNCLOS], art 94)'.[13] 18. In general terms, the flag State is responsible for the vessels flying its flag, and it is subject to a many obligations under international law in relation to those vessels. Article 94 of UNCLOS sets out 'duties of the flag State', including:
Territorial sea 20. Where a foreign ship is engaged in innocent passage, under art 21(1) of UNCLOS the coastal State has rights to regulate that passage in respect of various matters, such as the safety of navigation and the regulation of maritime traffic, protection of the environment of the coastal State, and prevention of infringement of fisheries laws, and customs, fiscal, immigration or sanitary laws, [17] provided the laws are nondiscriminatory and do not have the practical effect of denying or impairing the right of innocent passage.[18] (Failure to comply with an applicable law of the coastal State does not necessarily render passage non-innocent.) However, art 21(2) provides:
21. Of particular relevance to your question is the rule set out in art 25(2) of UNCLOS that, in the case of ships proceeding to a port or other internal waters, the coastal State has the right to take in the territorial sea the necessary steps to prevent any breach of the conditions to which their entry is subject. Therefore, the coastal State can, for example, take steps in the territorial sea to prevent a foreign vessel from entering port if it does not comply with conditions for entry. 22. With regard to offences committed by a person who is on board a foreign vessel in the territorial sea, art 27 of UNCLOS sets out the general principle that the criminaljurisdiction of the coastal State should not be exercised on board a foreign ship, except in certain specified situations. Article 27 provides:
23. A State's internal waters, including its ports, are part of its territory, over which it has territorial jurisdiction, as it has over its land territory. It therefore has jurisdiction over vessels in its ports and persons on those vessels. However, the flag States of the vessels also have jurisdiction over them. 24. Oppenheim describes the situation of foreign flag ships in ports as follows:
19. Accordingly, matters relating solely to the 'internal economy' of a foreign flag ship in port tend to be left to the authority of the flag State. Churchill and Lowe summarise general international practice as follows:
20. The Anglo-American position (which as far as we are aware is shared by Australia) is that this non-exercise of jurisdiction over the internal economy of ships in port is a matter of the voluntary non-exercise of jurisdiction - a rule of comity, rather than a rule of internationallaw.[21] However, some countries may take the view that, as a matter of international law, the port State has no jurisdiction over the purely internal affairs of foreign ships.[22] In any case, Churchill and Lowe note that the practice of refraining from exercising such jurisdiction is 'remarkably consistent'.[23] Control over entry into ports Whether foreign ships have a right of access to ports 27. In support of their view, Churchill and Lowe note that:
28. They point out that there Is a long-standing rule that States have the right to nominate which of their ports are open to international trade, and that 'it is generally admitted that a State may close even its international ports to protect its vital interests without thereby violating customary international law, and it would be difficult to establish that any interests invoked by a State were Inadequate to justify closure'. They add:
29. The International Court of Justice appears to have recognised such a right In the Nicaragua case when it noted that: It is also by virtue of its sovereignty [over its internal waters] that the coastal State may regulate access to its ports.[29] 30. Although UNCLOS does not specifically provide that a coastal State has the right to impose conditions on entry into its ports, some of its provisions assume that this is the case. In particular, as we have mentioned, art 25(2) allows the coastal State to take measures in the territorial sea in relation to ships proceeding to its internal waters to 'prevent any breach of the conditions to which admission of those ships to internal waters ... is subject'. In addition, art 211 requires States which establish requirements for the prevention, reduction and control of pollution of the marine environment 'as a condition for the entry of foreign vessels into their ports or internal waters' to give due publicity to tho~e requirements and communicate them to the competent international organisation. 31. In our view, foreign ships do not have a right under customary international law or UNCLOS to enter a State's ports, except where the ship is in distress.[30] It seems clear that, as a matter of general principle, a State can impose conditions for entry into its ports.[31] However, there is little guidance, either in treaties or in the academic literature, about the sorts of conditions of access which would be permitted. 32. Rothwell and Stephens in The international law of the sea, [32] state:
33. This would also suggest that they consider that the right of a coastal State to impose conditions on access to a port is also limited. However, they note examples of States having, on a non-discriminatory basis, barred port access to certain types of vessels, notably Australia's prohibition on access by foreign whaling vessels in the absence of written permisslon,[34] and New Zealand's ban on nuclear powered ships. 34. Churchill and Lowe, while taking the view that conditions can be imposed, state that:
35. The existence and scope of the principle of abus de droit (abuse of right) in international law is not clear. Oppenheim describes it as follows:
36. Article 300 of UNCLOS arguably recognises the existence of such a doctrine as part of International law by providing:
37. Akehurst argues that the exercise of legislative jurisdiction 'can give rise to genuine examples of abuse of rights - the State has a right to legislate and acts illegally only because it abuses that right'.[37] One situation in which he suggested that abuse would occur was 'if legislation is aimed at advancing the interests of the legislating State illegitimately at the expense of other States'. Akehurst provided the following example:
38. Whether conditions imposed on port entry could potentially be considered to be an abuse of right, or a failure to act in good faith, or otherwise to go beyond what is permissible, would of course depend on the nature of the conditions In question. In our view, if conditions imposed by Australia appear to be aimed at supplanting the jurisdiction of the flag State in situations where the flag State has primary jurisdiction the flag State may consider the imposition of conditions to be an abuse of right or otherwise impermissible. This risk would be greater if the conditions imposed requirements in situations where Australia has no reasonable claim to even concurrent jurisdiction. We discuss this issue further later in this advice. Treaty provisions requiring (equal) access to ports 40. Australia is a party to the 1923 Convention and therefore, any restrictions imposed on a vessel flying the flag of another party to the 1923 Convention,[39] would have to be consistent with its obligations under that Convention. Churchill and Lowe refer to this Convention as providing 'for a reciprocal right of access to, and equality of treatment within, maritime ports'. However, at first sight, we think it can be argued that the relevant provision - art 2 of the Statute attached to the Convention - does not provide for a right of access, but only imposes an obligation of nondiscrimination on the port State. It provides, in part:
41. (The reservation in art 8 is that if one party gives notice that it does not consider that another party is applying equality of treatment to the first party's vessels, cargo and passengers, the first party can suspend the benefit of equality of treatment in its own ports for any vessel of the second party.) 42. To provide a confident interpretation of the extent of the obligation under art 2 of the 1923 Convention it would be necessary to consider such matters as the circumstances of the conclusion of the Convention, and any subsequent agreement or subsequent practice regarding its interpretation and application. 43. Further, bilateral treaties of 'friendship, commerce and navigation' commonly deal with entry to ports. Australia succeeded to a large number of such treaties concluded by the United Kingdom. We have not examined all of these, either to interpret them or to establish whether they are still in force. However, on the basis of a very brief examination, it appears that most could be interpreted as providing, like the 1923 Convention, that ships of one party are to be treated no Jess favourably than ships of the other party in relation to access to that other party's ports, rather than providing a positive right of access. Nonetheless, Australia's obligations under all of these treaties will need to be considered if it is proposed to impose conditions on entry into ports by foreign cruise ships. Free trade agreements/GATS 45. In addition, a number of Australia's free trade agreements include provisions on trade in services. We have not sought to establish whether the imposition of conditions on port entry for passenger vessels would potentially breach any of these agreements - this is a complex issue, and the answer would probably depend on the particular conditions imposed " but it is a matter that would need to be considered before any such measure was adopted. Potential effect of non-discrimination provisions 46. A central issue in relation to international trade obligations, if any, would probably be whether measures were discriminatory, as between service providers of different foreign States (contrary to most favoured nation requirements) or as between foreign providers and Australian providers (contrary to national treatment requirements). We have also noted earlier in this advice a number of treaties which provide, probably not for free access to Australian ports, but for non-discriminatory access. We point out that the general effect of multiple non-discrimination requirements is that the most favourable treatment that Australia must give to any one State is likely to be the treatment that must be given to all of the States with which Australia has relevant treaty relations. 47. We also note that it can not necessarily be assumed that, because the same conditions apply on their face to Australian ships[40] and to all foreign ships, there is no discrimination. Particularly in the context of international trade law, the practical effect of the requirements on service providers of different nationalities needs to be considered. Conclusions with regard to Australia's right to impose conditions on port entry for cruise ships 48. As discussed above, we consider that Australia does have a general right to impose non-discriminatory conditions for entry to its ports on foreign cruise ships. However, that right is probably subject to some limitations. At least, it is probable that other States would take that view. As we have indicated, however, there is very little guidance as to what conditions are acceptable, and which are not. 49. We think that there is a substantial risk that the imposition of conditions, and denial of port access for failure to comply with them, would be considered to breach international law if the conditions appear to be aimed at asserting Australian jurisdiction In circumstances where such jurisdiction is not recognised according to the general principles of international law, or at overriding the concurrent jurisdiction of other States (particularly the flag State). so. In our view, conditions that are not particularly onerous, that are related to matters in relation to which Australia has jurisdiction and do not interfere with other States' jurisdiction could probably be imposed consistently with international law. Such conditions would include, for example, that the master or shipowner undertakes to inform Australian authorities of alleged offences in relation to which Australia has jurisdiction. It may also be possible to impose some conditions relating to the preservation of evidence and the standard of investigation of offences in relation to which Australia has jurisdiction, provided these do not interfere with the concurrent jurisdiction of other States, and notably the jurisdiction of the flag State. Conditions that would impede the flag State in carrying out its own investigation according to its own laws would in our view also run a substantial risk of being considered contrary to international law. 51. A condition requiring Australian authorities to be notified of incidents on board in relation to which Australia has no claim to criminal jurisdiction, and which do not otherwise involve Australian nationals or Australian interests, would also run a significant risk of being considered contrary to international Jaw, in our view. 52. Requiring ships to have on board and operate CCTV monitoring systems as a means of deterring crime and obtaining evidence throughout their voyage, in our view, is likely to be regarded as going beyond what Australia is entitled to require as a condition of port access. As we have mentioned, UNCLOS expressly provides that the coastal State cannot regulate ships in innocent passage in the territorial sea in relation to 'the design, construction, manning or equipment of foreign ships unless they are giving effect to generally accepted international rules or standards'. While this restriction relates to restrictions on innocent passage in the territorial sea, a condition of port entry that required ships to have a particular equipment- CCTV monitoring systems- while they were in the territorial sea heading to or from a port might be considered to be an attempt to overcome this limitation on the coastal State's rights by indirect means. This objection might be reduced if such a condition were limited to requiring the CCTV to be installed and in operation only while the ship is in port. However, even such a requirement might well raise objections from other States. As we have discussed above, the normal international practice is for States to refrain from regulating the internal economy of foreign ships in their ports. Australia's view is that this is a matter of comity, rather than a legal requirement, but even so a departure from that practice may well raise objections from other States. 53. The same arguments as apply to requiring CCTV also probably apply to conditions relating to the manning of the ship, Including that the ship carry crew with particular training, and requirements concerning the structure of the ship (such as high railings to deter suicide and reduce the risk of accident, and peepholes for cabin doors). 54. We think that there would be a significant risk In seeking to impose a condition that would require, as a condition of entry, that foreign ships adopt practices dictated by Australia in relation to the preservation of evidence and investigation of crimes on board wherever the ship is in the world, and whatever the nationality of the persons involved. This could be regarded as an attempt to supplant the jurisdiction of the flag State, which is recognised under customary international law, and by art 94 of UNCLOS. 55. However, the IMO currently has under consideration draft Guidelines on dealing with crimes on ships, which were approved by the Legal Committee at its 1 OOth session, 15 to 19 April 2013. The draft guidelines, which focus on what can practically be carried out on board a ship to preserve and/or collect evidence and protect persons affected by serious crimes, until such time that the relevant law enforcement authorities commence an investigation, will be submitted to the IMO Assembly 28th session, in November 2013, along with an associated draft resolution, for consideration with a view to adoption.[41] We note however that we have not seen the content of the draft guidelines.) If the guidelines are adopted by the IMO with broad support of the States members, and particularly if the relevant flag States support their adoption, then there would probably be good arguments that it is reasonable for Australia to make it a condition of entry to Australian ports that the owners/operators of a cruise ship have adopted those guidelines as part of the normal practice for the operation of the vessel. However, whether Australia could reasonably deny port access to a cruise ship on the basis that its crew had failed to follow the guidelines in a case in which Australia had no jurisdiction would be subject to doubt. 56. Generally, the adoption of draft guidelines in the IMO with broad support would increase the likelihood that any conditions reflecting those guidelines imposed by Australia would be regarded as reasonable, particularly by the States that had supported their adoption. Similarly other international practice, such as the adoption of requirements by a large number of other States for cruise liners operating In their ports or under their flag, would increase the likelihood that such requirements would be regarded as reasonable as conditions of port entry. Also, if the cruise industry generally adopts particular practices, conditions requiring the application of those practices are less likely to be objected to by other States, at least if Australia does not appear to be attempting to displace other States' jurisdiction. 57. We point out that there is a particular risk of other States regarding conditions of port access as unacceptable if those conditions would require the master or crew to breach the Jaw of the flag State, which applies on board the ship. For example, requiring monitoring by CCTV and possibly other steps to secure evidence, and requirements to notify Australian authorities of incidents and the identity of persons involved, might breach applicable privacy laws or other laws such as protecting the identity of the alleged victims of sexual offences or the identity of alleged offenders. 58. As already mentioned, it would need to be considered whether any conditions are consistent with Australia's obligations under treaties dealing with port access and free trade. Agreement of the flag State/owners and operators 59. We point out that objections on the basis of interference with other States' jurisdiction would be avoided if the States concerned agreed to the conditions in question. Also, voluntary arrangements with the owners or operators of cruise ships, assuming that they did not breach the law or otherwise deny the legitimate jurisdictional claims of other States, and assuming they did not result in discrimination between ships of different nationalities, would not appear to create difficulties under international law. 60. Mr Robert Orr QC, Chief General Counsel, has read and agrees with this advice. 61. Please Jet us know if we can be of further assistance.
Yours sincerely Navigation: Previous Page | Contents | Next Page |
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