Territorial waters: Waters adjacent to the territory of a state may be either national or territorial. Territorial waters lie within a definite maritime zone or belt adjacent to a state’s territory.
National waters: National or interior waters consist on internal ports, rivers, lakes, canals, gulfs, bays, and harbors etc.
Maritime belt: The maritime belt is that part of the sea, which is under the sway (power, authority, dominance, influence, control) of the littoral (beach, coast) states.
There is considerable unanimity of opinion that the open sea cannot be state property and only such part as stated above of the sea would be the state property of the littoral states.
Marginal belt: Territorial waters are also termed as “marginal belt” over which the littoral state has completed territorial sovereignty.
Territorial sea: The International Law Commission of UN has expressed a preference for the term “Territorial Sea” over “Territorial Waters” for the maritime belt of coastal waters, because the latter term may include inland waters.
Extent of jurisdiction over Territorial Waters: The extent of jurisdiction over territorial water has not been specifically determined. The customary rules and the jurists prescribes the extent of jurisdiction as follows:
1. Range of cannon shot: Bynker Shoek published his work, (Essay on Sovereignty over the Sea), in which he adopted the rule that the littoral state could dominate only such width of coastal water as by within range of cannon shot from shore batteries; and the territorial sovereignty extends as far as the power of arms carries.
2. Three miles limit: The three mile limit was suggested by France in certain eighteenth century negotiation with demand as a compromise between the cannon shot rule and the Scandinavian measured belt.
3. Universally accepted rule: The three mile rule is so universally accepted as a minimum that one may safely postulate (assume, suppose, presume) a customary rule of International Law that the recognized minimum breadth or width of the maritime belt is three miles.
4. Grotius: Grotius introduced the principle of limiting the dominion to the distance to which protection could reach it from the shore.
5. According to Valtel: Valtel observed that in general the dominion of the state over the neighboring sea extended as far as her safety rendered it necessary and her power was able to assert it.
6. English law: Great Britain by enacting S. 7 of the Territorial Waters Jurisdiction Act, 1879, also prescribed the width of the belt as one maritime league, i.e., three geographical miles from the low water mark and extended the jurisdiction of English Court over offences committed in the territorial waters.
7. Sea convention adopted by the law of Sea Conference, 1982, signed by 117 countries: The convention provides for a twelve nautical (naval) miles territorial sea in which a coastal state can exercise its sovereign power with few exceptions. But foreign vessels would be allowed “innocent passage” through these waters for purposes of peaceful navigation.
8. International conference on the law of sea held in Geneva in March 1958, the consensus (agreement) of opinion approved to be to prescribe the breadth of territorial width to six miles.
Rights of the coastal state over the territorial sea: The coastal state’s sovereignty over the territorial sea includes the following rights:
1. An exclusive right to fish, and to exploit the resources of the seabed and subsoil of the territorial sea.
2. Exclusive enjoyment of the air space above the territorial sea, unlike ship, foreign aircraft have no right to innocent passage.
3. The coastal state’s ships have the exclusive right to transport goods and passengers from one part of the coastal state to another.
4. If the coastal state is neutral in time of war, belligerent (hostile) states may not fight, or capture merchant ships, in the coastal state’s territorial sea.
5. The coastal state may enact regulations concerning navigation, health, customs duties, and immigration, which foreign ships must obey.
6. The coastal state has certain powers of arrest over merchant ships exercising a right of innocent passage, and over persons on board such ships.
Pirates (sea robber) are enemies of mankind: A pirate is an enemy of the whole human race “hostis humani genris”. He is outlawed (unlawful, illegal, prohibited, and wrong) by the law of all nations, his act being one directed against the whole body of civilized states.
Molley: Molley defines a pirate as a sea thief who to enrich himself either by surprise or open face sets upon merchants or other traders by seas.
Kenny: Piracy is any armed violence at sea which is not a lawful act of war.
Moore’s “Digest of International Law”: A pirate is defined as one who without legal authority from any state, attacks a ship with intention to appropriate what belongs to it.
Story: Robbery or forcible depredation (stealing, theft) upon the sea is piracy.
L. Oppenheim: Piracy, in its original and strict meaning, is a very unauthorized act of violence committed by a private vessel on the open sea against another vessel with intent to plunder (robbery or theft).
If the members of the crew revolt and convert the ship, and the goods thereon, to their own use, they are considered to be pirates, although they have not committed an act of violence against another ship.
If unauthorized acts of violence, such as murder of persons on board the attacked vessel, or destruction of goods thereon, are committed on the open sea without intent to plunder, such acts are in practice considered to be piratical.
Object of piracy: The object of piracy is any public or private vessel, or the person or the goods thereon, whilst on the open sea. In the regular case of piracy the pirate wants to make booty, it is the cargo of the attacked vessel, which is the centre of his interest, and he might free the vessel and the crew after having appropriated the cargo.
Piracy according to the International Law Commission: Piracy consists of an illegal act of violence, detention, or any act of depredation, committed for private ends by those aboard (on board, loaded, shipped) a private ship or private aircraft, and directs either on the High Sea, against a ship or persons or property thereon, or, in the territory or waters of nature of terra nullius.
Essential ingredients of piracy: The essential ingredients of an act of piracy are:
1. It is an act performed by a person sailing the High Sea.
2. Such an act is without the authority or commission of any state.
3. Actual robbery is not an essential element in the crime of piracy; frustrated attempt to commit robbery is equally piracy jure gentium.
4. Such act of robbery is committed by a private vessel against another vessel or by the mutinous (rebellious, seditious) crew against their-own vessel.
5. The essence of piracy consists in the pursuit of pirate, as contrasted with public, ends.
Universal jurisdiction: Piracy subject to universal jurisdiction is one, which comes under the jurisdiction of all states wherever it is committed.
It is treated as a delict jure gentium and all the states are to apprehend and punish the offenders.
Protection of flag state: By this conduct, the pirate is deemed automatically to lose the protection of his flag state and any privileges due to him virtue of his nationality.
Piratical acts authorized by a government: Professor Hyde maintains that “national authorization of the commission of piratical acts would not free pirates from their intentionally illegal aspects.”
Right of visit and seizure of pirate ship: All warships (aircraft carrier) are entitled to visit a vessel deemed to be piratical for the purpose of ascertaining her true character.
Ownership of property in piracy: A robbery by piracy does not deprive the rightful owner of his property, which has to be restored to him when recaptured.
UN contention (contest, struggle) on the Law of Seas, 1982: Article 102 of the convention lays down that the act of piracy committed by a warship, government ship, or government aircraft, whose crew has mutinied (revolt, sedition) and taken control of the ship or aircraft are assimilated (amalgamated) to acts committed by a private ship or aircraft.
Right to arrest pirates and seize pirate ship: Article 105 further provides that 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.
Decision by the Court in good faith: 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 ships, aircraft, or property, subject to the rights of third parties acting in good faith.
Article 105, further provides that where the seizure of a ship or aircraft on suspicion of piracy has been effected without adequate grounds, the state making the seizure shall be liable to the state the nationality of which is possessed by the ship or aircraft for any loss or damage caused by the seizure.
Article 107 states that a seizure on account of piracy may only be carried out by warships or military aircraft or other ships or aircraft clearly marked and identifiable as being a government service and authorized to that effect.
|