Border crossing and IMO antiterrorist measures

1. Border crossing and IMO antiterrorist measures Legal aspects

2. 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.

3. 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)

4. 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.

5. 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.

6. 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.

7. 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

8. 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

9. 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

10. 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

11. 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

12. 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.

13. 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

14. 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

15. 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.

16. 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

17. 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 .

18. 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