applies not only within its own territorial seas and on the high seas, but also in the
territorial seas of another state.
10 It must be noted, however, that dual jurisdiction
may apply to the ship when it is situated in the territorial sea or even internal waters
of a littoral state. In other words, coastal state and flag state jurisdiction may apply
concurrently. For example, if there is a violation of a ship-source pollution provision
under the MARPOL Convention
11 committed in the territorial seas of a coastal state,
the ship may be prosecuted under the law of the coastal state, and also separately
under the law of the flag state which is a party to MARPOL. In this branch of
international law, the concept of double jeopardy is non-existent.
12
In United Kingdom law, prior to the Act of Union, the English Admiralty had
jurisdiction over crimes committed on the high seas as well as in, “all waters below
low water mark where great ships can go”.
13 This jurisdiction continues to apply to
all British ships in relation to crimes committed on board. The Theft Act 1968
applies in such an instance, irrelevant to the fact that s. 36 stipulates that the Act does
not apply to Scotland or Northern Ireland.
14 Without nationality, a ship is not only
unprotected by any law, but it is unable to enter and exit ports for trade or any other
purpose. In the United Kingdom, the master of a ship must first make a declaration of
nationality of the ship to a customs officer before clearance is given for that ship to
proceed to sea.
15 A ship may be detained if it attempts to proceed to sea without
clearance. The consequences of a ship without nationality at sea is evidenced in
Naim Molvan v. Attorney General for Palestine
16 where the flagless vessel Asya was
arrested 100 nautical miles off the Palestinian coast. Forfeiture was ordered by the
Palestinian court regardless of the fact that the vessel was arrested on the high seas.
The Privy Council on appeal concluded that freedom on the high seas does not apply
to a vessel without nationality.
17 Reference was made to the following passage from
Oppenheim’s International Law:
In the interest of order on the open sea, a vessel not sailing under the maritime flag of a State
enjoys no protection whatever, for the freedom of navigation on the open sea is a freedom for
such vessels only as sail under the flag of a state.
18
Whereas nationality is a substantive matter, the procedural device through which
it is conferred and evidenced is ship registration. This is the act of entering the ship in
the public records of the state that confers its nationality. The practice of registration
of ships stems from Roman Law and the maritime codes of the City States of
10 Gaskell et al. (1987), p. 20.
11 International Convention for the Prevention of Pollution from Ships, 1973 and its Protocol of
1978, 12 ILM 1319 (1973), 1340 UNTS 61; 17 ILM 546 (1978).
12 Mukherjee (2019).
13 See Oteri v. The Queen [ 1977] 1 Lloyd’s Rep. 105, at p. 108.
14 Gaskell et al. (1987), p. 20.
15 See United Kingdom Merchant Shipping Act 1995, s. 6(1).
16 The Asya (1947) 81 Ll.L.R 277 (P.C.).
17 Ready (1998), p. 2.
18 Lauterpacht (1955), p. 546.
584
R. Mukherjee
territorial seas of another state.
10 It must be noted, however, that dual jurisdiction
may apply to the ship when it is situated in the territorial sea or even internal waters
of a littoral state. In other words, coastal state and flag state jurisdiction may apply
concurrently. For example, if there is a violation of a ship-source pollution provision
under the MARPOL Convention
11 committed in the territorial seas of a coastal state,
the ship may be prosecuted under the law of the coastal state, and also separately
under the law of the flag state which is a party to MARPOL. In this branch of
international law, the concept of double jeopardy is non-existent.
12
In United Kingdom law, prior to the Act of Union, the English Admiralty had
jurisdiction over crimes committed on the high seas as well as in, “all waters below
low water mark where great ships can go”.
13 This jurisdiction continues to apply to
all British ships in relation to crimes committed on board. The Theft Act 1968
applies in such an instance, irrelevant to the fact that s. 36 stipulates that the Act does
not apply to Scotland or Northern Ireland.
14 Without nationality, a ship is not only
unprotected by any law, but it is unable to enter and exit ports for trade or any other
purpose. In the United Kingdom, the master of a ship must first make a declaration of
nationality of the ship to a customs officer before clearance is given for that ship to
proceed to sea.
15 A ship may be detained if it attempts to proceed to sea without
clearance. The consequences of a ship without nationality at sea is evidenced in
Naim Molvan v. Attorney General for Palestine
16 where the flagless vessel Asya was
arrested 100 nautical miles off the Palestinian coast. Forfeiture was ordered by the
Palestinian court regardless of the fact that the vessel was arrested on the high seas.
The Privy Council on appeal concluded that freedom on the high seas does not apply
to a vessel without nationality.
17 Reference was made to the following passage from
Oppenheim’s International Law:
In the interest of order on the open sea, a vessel not sailing under the maritime flag of a State
enjoys no protection whatever, for the freedom of navigation on the open sea is a freedom for
such vessels only as sail under the flag of a state.
18
Whereas nationality is a substantive matter, the procedural device through which
it is conferred and evidenced is ship registration. This is the act of entering the ship in
the public records of the state that confers its nationality. The practice of registration
of ships stems from Roman Law and the maritime codes of the City States of
10 Gaskell et al. (1987), p. 20.
11 International Convention for the Prevention of Pollution from Ships, 1973 and its Protocol of
1978, 12 ILM 1319 (1973), 1340 UNTS 61; 17 ILM 546 (1978).
12 Mukherjee (2019).
13 See Oteri v. The Queen [ 1977] 1 Lloyd’s Rep. 105, at p. 108.
14 Gaskell et al. (1987), p. 20.
15 See United Kingdom Merchant Shipping Act 1995, s. 6(1).
16 The Asya (1947) 81 Ll.L.R 277 (P.C.).
17 Ready (1998), p. 2.
18 Lauterpacht (1955), p. 546.
584
R. Mukherjee