On December 2015, Panama in accordance with Article 287 of the United Nations Convention on the Law of the Sea (UNCLOS), invoked a case against Italy in relation to “the arrest and detention by Italy of M/V Norstar,” an oil tanker that flew its flag. [1] It requested the International Tribunal of the Law of the Sea (ITLOS) to determine whether Italy, by arresting the M/V Norstar [2], had infringed on the rights of Panama under Article 87 of UNCLOS. Italy defended that its arrest was for probative purposes as their investigations had revealed “that the M/V Norstar was involved in the business of selling the fuel purchased in Italy in exemption of tax duties to a clientele of Italian and other EU leisure boats in the international waters off the coasts of the Italian city of Sanremo.” [3] However, on 10th April 2019, the court ruled that Italy had indeed violated the freedom of the high seas of Panama by detaining the vessel, and the case was closed with Italy compensating for the M/V Norstar that was scrapped in 2015, after not being recovered by the Inter Marine & Co AS in 2003. [4]
Tanker (vessel). Photo by Daniel Norris on Unsplash.
The M/V Norstar Case was not the first time that a court had mediated on a dispute with regards to jurisdictional rights; however, it was unprecedented in that it is the first case wherein Article 87, the freedom of the high seas, was involved in direct contention, and Article 92, the exclusive flag state jurisdiction, was addressed to such length and detail. In the process, the Tribunal observed the details of exclusive flag state jurisdiction extensively. At first glance, the case may be applauded for contributing to the expansion of UNCLOS, however, the Tribunal has been critiqued by scholars as having implicitly ruled for the freedom of the high seas over prescriptive jurisdiction, a natural right of States under international law.
Prescriptive jurisdiction, or legislative jurisdiction, has long been an established concept in international law. It is one of the ways in which a state can make an impact upon people, property or circumstances. According to the American law Institute, prescriptive jurisdiction is “to prescribe, i.e., to make its law applicable to the activities, relations, or status of persons, or the interests of persons in things, whether by legislation, by executive act, or order, by administrative rule or recognition, or by determination by a court.” [5] Because different states have different laws, the criteria to adjudicate or enforce jurisdiction may differ; however, the international standard for legislative jurisdiction is simple yet complex: it is to have ‘sufficient or reasonable connections.’
The extent of prescriptive jurisdiction has been vague, and at times, abused in order to claim jurisdiction on issues, especially that of criminal – the prime issue of jurisdictional conflict. According to Malcolm Shaw and Arron Honniball, this has, nevertheless, been justified by numerous principles under international law: the territorial principle, the effects doctrine, the nationality principle, the passive personality principle, the protective principle, and the universality principle. [6] Among these principles, the territorial principle has been an indisputable and exclusive claim to jurisdiction as enforcement within one’s borders is closely related to the sovereignty of a state. Hence, it has been the practice for prescriptive jurisdiction to not require justification to be enforced as long as it is not prohibited by international law, especially when the extraterritorial conduct can be made connections to a crime committed in a state’s territory – whether it may be per subjective or objective territorial principle.
In the Lotus Case, for example, the Permanent Court of International Justice (PCIJ) was asked to deal with the question of whether international law prohibited Turkey from exercising its prescriptive jurisdiction over the French Lieutenant Demons who had, as a result of the collision of the French steamer Lotus and Turkish collier Boz-Kourt, convicted manslaughter by killing eight Turkish sailors and passengers. France protested that Turkey had no claim to Lieutenant Demons as “breaches of navigation regulations fall exclusively within the jurisdiction of the State under whose flag the vessel sails.” [7] However, in the judgments of the Lotus Case, where the Court examined the nature of territorial sovereignty in relation to criminal acts, it noted that a state cannot exercise its jurisdiction outside its borders unless international law permits it, and that “the territoriality of criminal law, therefore, is not an absolute principle of international law and by no means coincides with territorial sovereignty.” [8] The Court ruled that Turkey, within the meaning of Article 15 of the Convention of Lausanne on July 24th, 1923, “respecting conditions of residence and business and jurisdiction,” had “not acted in conflict with the principles of international law” as “no rule of international law in regard to collision cases to the effect that criminal proceedings are exclusively within the jurisdiction of the State whose flag is flown” existed at the time of the procedures. [9]
Returning to the recently settled M/V Norstar Case according to Italy, the activities conducted by the M/V Norstar took place mainly within “the contiguous vigilance zone,” just outside the territorial seas of Italy, France and Spain, engaging in in the so-called “offshore bunkering.” [10] However, the act of bunkering had been previously ruled in the M/V Saiga (No.2) and the M/V Virginia G that it fell under the freedom of the high seas. [11] The only difference with the M/V Norstar was that in these two cases, the act of bunkering was related with fishing in the EEZs of Guinea and Guinea-Bissau, whereas the M/V Norstar dealt with bunkering related to pleasure in international waters. As a result, though the activities of the Norstar took place within the EEZ, it was ruled that per Article 58 (1), the M/V Norstar was still protected by the principle of exclusive flag state jurisdiction as stipulated in Article 92 (1), and therefore, the rights of the freedom of the high seas (Article 87) continued to apply.
However, the Tribunal, in doing so, disregarded the conflict of jurisdiction which derived from the issue of whether Italy, who claimed that they had ‘reasonable connections’ to the M/V Norstar to issue an arrest warrant, had the right to apply prescriptive jurisdiction on M/V Norstar or not. In the M/V Norstar Case, theoretically, under the principle of objective territorial jurisdiction, Italy did have extraterritorial prescriptive jurisdiction over Norstar as the Public Prosecutor at the Court of Savona issuance of the arrest warrant involved suspected criminal activities of the M/V Norstar and the Rossmare International S.A.S.. Nevertheless, the issue was never addressed as the court glossed over the prescriptive jurisdictional rights by claiming that the principle of exclusive flag state jurisdiction “prohibits not only the exercise of enforcement jurisdiction on the high seas by States other than the flag State but also the extension of their prescriptive jurisdiction to lawful activities conducted by foreign ships on the high seas” and that “article 87 may still be applicable and be breached if a State extends its criminal and customs laws extraterritoriality to activities of foreign ships on the high seas and criminalizes them.” [12] Furthermore, the Tribunal claimed that unless the activities involve the activities under shared jurisdiction of the states – those that fall under the universal jurisdiction such as slavery, piracy, unauthorized broadcasting, and transport of drugs – no state can prescribe jurisdiction.
Resultantly, following the Lotus Case, it has become the norm to permit states to act as long as its actions do not come into conflict with the law. Thus, numerous states adopted rules so as to extend their jurisdictions beyond their territorial border, and drafted Article 11(1) of the High Seas Convention 1958, and subsequently Article 92 (1) of UNCLOS, stating that “Ships shall sail under the flag of one State only and... shall be subject to its exclusive jurisdiction on the high seas,” emphasizing that only the flag state or the state of which the alleged offender was a national has jurisdiction over sailors regarding incidents occurring on the high seas.[13] Perhaps resultantly, in the cases of the M/V Saiga (No.2), M/V Virgina G and M/V Norstar, the Courts emphasized the freedom of states over prescriptive jurisdiction.
However, in the ongoing conflict of the Enrica Lexie, there are signs of return to the Lotus Case. In the Enrica Lexie Arbitration, while Italy argues that India’s arrest and detention of the Italian marines on an Italian flagged vessel for killing two Indian fishermen on an Indian vessel was unlawful, and that it interfered with the freedom of navigation and exclusive flag state jurisdiction under Article 92 of the Convention, India claims jurisdiction as the flag state of St. Antony, the victimized vessel, and the victim state per the subjective territorial principle. Nonetheless, the ITLOS’s provisional measures in the Enrica Lexie Incident had Italy and India “both suspend all court proceedings” but did not decide as to whether the arrested marines would be released or not, emphasizing the rights claimed by India, contradicting the M/V Norstar Case that prioritized the freedom of states. [14]
International law continues to evolve, and interpretations have adapted to the changing times. Though as to how the Arbitration Tribunal will rule on the ongoing Enrica Lexie Arbitration is still questionable, whether the court rules for Italy or India, the validity of the dissenting opinions provided in the Lotus Case may be put into question. The M/V Norstar Case had ruled for the freedom of the high seas over prescriptive jurisdiction in contrast to the Lotus Case. Now, whether the trends of establishing freedom over jurisdiction will continue is yet to be seen in the Enrica Lexie Arbitration, and because of the vagueness of the connection of prescriptive jurisdiction, questions as to how international law will be interpreted to address future cases of criminal issues on the high seas will be something to look forward to.
***The views expressed herein do not necessarily represent the opinions of JTMS or Yonsei Institute for North Korean Studies
References:
[1] M/V “Norstar” (Panama v. Italy), Case No. 25, Judgment of April 10, 2019, para. 1, https://www.itlos.org/fileadmin/itlos/documents/cases/case_no.25/Judgment/C25_Judgment_10.04.pdf [hereinafter M/V Norstar].
[2] The M/V Norstar was a vessel registered under Panama, belonging to that of the Norwegian shipping company, Inter Marine & Co AS, and chartered to a Maltese-registered company, Nor Maritime Bunker.
[3] M/V Norstar, para. 70.
[4] M/V Norstar.
[5] American Law Institute, Restatement (Third) Foreign Relations Law of the United States (1987) at § 401(a).
[6] Malcolm Shaw, “Chapter 12: Jurisdiction,” International Law, Cambridge: Cambridge University Press (2008), 652-686.; Arron N. Honniball, “The Exclusive Jurisdiction of Flag States: A Limitation on Pro-active Port States?” The International Journal of marine and Coastal Law 31 (2016), 499-530.
[7] The Case of the S.S. “Lotus” (France v. Turkey), PCIJ, Series A-No. 10, Collection of Judgments of September 7, 1927, p. 13, https://www.icj-cij.org/files/permanent-court-of-international-justice/serie_A/A_10/30_Lotus_Arret.pdf [hereinafter Lotus].
[8] Lotus, p. 20.
[9] Lotus, p. 32, 30.
[10] M/V Norstar, para. 73.
[11] M/V “Virginia G” (Panama/Guinea-Bissau), Case No. 19, Judgment of April 14, 2014, https://www.itlos.org/fileadmin/ itlos/documents/cases/case_no.19/judgment_published/C19_ judgment_140414.pdf.
[12] M/V Norstar, para. 226.
[13] UNCLOS Art.92
[14] The “Enrica Lexie” Incident (Italy v. India), Case No. 24, Order of 24 August 2015, para. 141, https://www.itlos.org/fileadmin/itlos/documents/cases/case_no.24_prov_meas/24_published_texts/2015_24_Ord_24_Aug_2015-E.pdf.