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UNCLOS

Due to the international nature of shipping, it may be difficult to report crime, and to get the crime properly investigated. Determining which state has jurisdiction is the first step, some key points and definitions are set out below:

UNCLOS – The United Nations Convention on the Law of the Sea is an international treaty which was adopted and signed in 1982. It defines the rights and responsibilities of nations with respect to their use of the world’s oceans and the extent of their jurisdiction over coastal waters. 167 states have ratified UNCLOS but it is worth noting that the USA has not.

Flag State – All merchant ships must be registered with a sovereign state. The ship is then bound to fly the flag of that state, and to abide by its laws and regulations. It is the duty of the flag state to enforce law on vessels which fly their flag.

Coastal State – The sovereignty of a Coastal State extends beyond its land to an adjacent belt of sea, described as the territorial sea. The territorial waters of a country extend 12 miles from the coast. The Coastal State can also enforce certain laws in waters extending a further 12 miles from the territorial sea (the Contiguous Zone).

Port State – The state where the ship is docked or anchored. The Port State is able to exercise its authority over ships that visit its ports.

Flags of Convenience – a “Flag of Convenience” ship is one that is registered to a state to which it has no connection, for financial benefit or to take advantage of less stringent regulations.

High Seas – Any waters that are not under the jurisdiction of another state. For crimes on the high seas (e.g. sexual assault) the Flag State jurisdiction will apply.

The general rule is that the master/owner should report alleged or discovered serious crimes to the Flag State and the law enforcement authorities of the other potentially interested States, including the law-enforcement authorities of the first port of call and appropriate state if the alleged crime is committed in other territorial waters. It is to be hoped that the various authorities will co-operate as necessary, however this is not always the case.  

Article 27 of UNCLOS provides that the criminal jurisdiction of a coastal state should not be exercised to arrest any person or conduct any investigation in connection with any crime committed on a foreign ship passing through its territorial sea. Some exceptions apply to this and significantly one of these is if the assistance of the local authorities has been requested by the master of the ship.

However, the decision to deviate to a port that will assume jurisdiction cannot be taken lightly and there will be a number of factors the Master will have to consider before making this decision.

A potential problem in relying on the Flag State is that it may well not have the resources or capabilities to board the vessel at a foreign port and conduct an investigation. This will apply particularly in the case of flag of convenience jurisdictions.

The issue is further complicated by the fact that the victim may be from a country unconnected to the flag state or the next port of call, and the alleged perpetrator from yet another jurisdiction. This will likely introduce practical problems in bringing the alleged perpetrator to justice.

There may be instances where a state will enforce its jurisdiction even if the crime in question is perpetrated outside its waters e.g. the FBI will investigate a crime where the perpetrator or victim is a US national, AND the ship is en-route to or from a US Port.

The US based Rape, Abuse & Incest National Network (RAINN) has a particularly informative guide for victims of sexual assault on board US Cruise Ships, which clearly explains the US position.

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