Application of the Law to the Facts

The M/V Gentlemen Prefer Blondes is a small cargo vessel owned by nationals of the State of Abacus. Its Master and 15 crew have always consisted entirely of Abacus nationals. Nevertheless, the Gentlemen Prefer Blondes is registered under the law of the Sate of Bellus as a ship of Bellus nationality with the right to fly the Bellus’ flag. The Gentlemen Prefer Blondes flies the Bellus’ flag at all times. On the morning of 18 August 2008, the Gentlemen Prefer Blondes entered the territorial seas of your country while en route from Port Bellus to Port Abacus.

Bellus and your nation have both been parties to the United Nations Convention on the Law of the Sea (UNCLOS) since 1994. Your nation’s legislation claims a territorial sea, contiguous zone and Exclusive Economic Zone to the maximum width allowable under UNCLOS.

In addition to its usual complement of Master and crew, the Gentlemen Prefer Blondes was also carrying 30 Bellus nationals. None of these passengers were carrying passports or other official travel documents. Over the past few years, your nation has encountered the problem of illegal immigrants from Bellus arriving by ship, carrying narcotic drugs and landing ashore at remote locations on your coast.

In order to arrive legally in your nation, foreigners must arrive at a designated seaport or airport, and have in their possession a passport containing a valid visa. They must then promptly present themselves at the official; immigration checkpoint located at every designated seaport and airport. Failure to comply with this requirement is a criminal offence. It is also a criminal offence to assist another person to evade this requirement and to perform any act, or assist in the performance of any act, preparatory to the evasion of the requirement.

All importations of narcotic drugs are the subject of the required permissions of your nation. These permissions are enforced by your Border Management Authority in accordance with your domestic legislation and your nation’s international obligations as signatories to the relevant international agreements.

After sunset on 18 August 2008, the Gentlemen Prefer Blondes anchored a few metres away from Danger Island, on its seaward side. Danger Island is an uninhabited rocky outcrop under the territorial jurisdiction of your nation. The landward side of the island is located exactly 12.1 miles from the low-water mark on the nearest part of your nation’s coastline. There are no other islands, rocks, reefs or other land masses in the vicinity, and no harbour works on the nearby coast. Danger Island is about 10 metres in diameter at low tide and is submerged at high tide. It is more than 500 kilometres from any designated seaport or airport. The Border Management Authority maps display Danger Island as generating its own 12-mile territorial sea and a further 12-mile contiguous zone.

After about 25 minutes had passed and it became almost completely dark, the Gentlemen Prefer Blondes lowered several rowboats into the water. At this point, a Border Management surveillance station on the mainland, receives intelligence from a person on board the vessel Gentlemen Prefer Blondes sent by radio a message to the ship’s Master. This message stated that the vessel was in your nation’s territorial

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waters, that it must cease and desist in the lowering of rowboats, and that it must maintain its position pending the arrival and boarding of a Border Management coastal patrol boat.

The Gentlemen Prefer Blondes immediately hauled its rowboats aboard, raised anchor, and proceeded at maximum speed towards the open ocean. The Border Management patrol boat despatched from the mainland lost track of the Gentlemen Prefer Blondes and turned back at 11:00pm on 18 August 2008. By 3:00am 19 August 2008, the Gentlemen Prefer Blondes had reached the high seas, but the passengers had become angry at the Master’s decision to sail away from your nation’s coast. Two passengers produced pistols and threatened to shoot crew members unless the Master turned around the Gentlemen Prefer Blondes and returned to your nation. The Master refused, and a crew member was shot and seriously wounded by one of the two armed passengers who threatened the crew with death if they did not comply. The crew’s radio operator managed to send out a distress signal saying that two armed passengers on board the vessel had shot a crew member, and the radio operator requested immediate medical assistance.

A Border Management patrol boat, which had been on the lookout for the Gentlemen Prefer Blondes, responded to the distress call and arrived on the scene within 15 minutes. A detachment of armed Border Management Officers from the patrol boat boarded the Gentlemen Prefer Blondes without first obtaining permission from the ship’s Master.

One of the Border Management Officers, Dick Deadly, shot dead a crew member who did not immediately comply with an order to lay face-down on the deck. The remaining crew and passengers, including the two armed passengers, immediately complied.

All of the passengers and crew were searched by the Border Management Officers. Two crew members were found to be in possession of 500g of cocaine, 500g of opium and various items of drug paraphernalia. The two armed passengers were found to be in possession of documents detailing the co-ordinates of the lowering of the rowboats, contact telephone numbers for a known drug cartel and drug testing kits used to ascertain the quality of narcotic substances. A search of the cargo hold of the vessel located two pallets of cocaine, with an estimated weight of 250kgs. There were no markings or other identification documents attached to these pallets.

The Gentlemen Prefer Blondes, with its Master, crew and passengers were taken to the nearest port on your nations’ coast. The Master, surviving crew and the passengers were detained by Border Management Authority Officers.

The Gentlemen Prefer Blondes has been impounded by the Border Management Authority in accordance with your nation’s laws.

The Director-General of your Border Management Authority has asked you to prepare a written advice concerning the legal issues of this incident and the involvement of Border Management Authority Officers.

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Advice

to the

Director General

on the

Legal Issues

imposed by theIncidence on the 18th & 19th of August

2008

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1. Introduction

This advice report is prepared base the incident on the 18 th and 19th of August 2008 that involved our Border Management Authority and Officers and a foreign national cargo vessel. The legal issues of the incident will be analysed in light of both our national law and international law.

This report is structured as follows. The next section provides the analysis of the incident and relevant facts that attracted legal issues and interpretations. Section 3 will discuss the legal issues of the incident on a chronicle basis. The final section will provide concluding advice to the Director General.

2. Analysis of the Incident

The nature of the incident can be broken down into two chronicle stages; the first contact and the second contact; and the territorial jurisdiction and legal matters associated with each contact. Each contact involves our Border Management Authority and a foreign registered vessel.

The nature of the first contact is as follows. On the 18 th of August 2008 a foreign vessel named Gentlemen Prefer Blondes (GPB) stopped and anchored at one of our islands, namely the Danger Island while en route from Port Bellus to Port Abacus. Danger Island is located exactly 12.1 miles from our costal line and submerged at high tide. The vessel raised Bellus’ flag and has 15 crew members and a Master that are of Abacus nationals. On top of this the vessel carries 30 Bellus nationals. Our intelligence provided that these passengers have no passports and other travel documents. After the sunset the vessel lowered several rowboats into the water. This action was interrupted when the ship’s Master learned about the imminent approach of our Border Management petrol boat. The vessel then raised its anchor and sped away at high speed to the open sea. Our patrol boat immediately engaged in the hot pursuit of the GPB until we lost its track and returned back about 11:00pm.

The second contact is at some time after 3:00 am on the 19 th of August when our patrol boat received a distress signal asking for help and medical assistant from the vessel. Immediately our patrol boat responded and reached the vessel within 15 minutes. Our officers claimed aboard without first asking permission of the ship Master and one of our officers shot dead a crew member.

On board the vessel, our officers found 500g of cocaine, 500g of opium and various items of drug paraphernalia belong to two crew members. They also found two pallets of cocaine with an estimated weight of 250kg. The officers further uncovered that two of the passengers possess documents detailing the co-ordinates of lowering the rowboat and contacts of a known drug cartel. There were no markings or other identification documents attached to the two pallets of drug.

After documenting all of the evidences the Officers took the GPB, its Master, crew and passengers to the one of our port near to the incident area.

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3. Legal Issues on the above Facts

3.1 Legal Matters of First Contact

In order to fully comprehend the legal matters associated in the first contact between our Border Management Authority/patrol boat and the GPB the territorial jurisdiction of the Danger Island need to be analysed. The United Nations Convention on Law of the Sea (UNCLOS) provided, in Article 121 (1), that an island is a naturally formed area of land, surrounded by water and is above water at high tide1. Since our nation is a contracting party to the UNCLOS, the Article 121 applies to Danger Island and in turn makes it not an island under according to its provision. This is because Danger Island submerges at high tide. Nevertheless, Danger Island can be classified as Low-tide elevations under Article 13. Paragraph 1 of Article 13 provided that a Low-tide elevation has similar nature to an island but it submerges at high tide2. A low-tide elevation can have its own territorial sea when it situates wholly or partly within 12 nautical miles or territorial sea of the mainland.

Article 18 of the UNCLOS provides our nation, as a costal state the right to exercise our sovereignty beyond our land territory. It provided that our nation can claim territorial sea of 12 nautical miles, measured from the baselines. The International Court of Justice (ICJ) provided that the baselines from which the breadth of the territorial sea is to be measured is the low-water mark of the coast3. The distance of 12 nautical miles is equivalent to 22.224 km4. The application of this provision makes the landward side of Danger Island as part of the mainland’s territorial sea. This is because it has distance, from the low-water mark of our nation nearest costal line, of 12.1 miles, which equivalent to 19.473 km5. Since the breadth between the low-water line of Danger Island and the low-water mark of the mainland is within 12 nautical miles, Danger Island has its own territorial sea as well. Moreover, since the diameter of Danger Island is 10 metres a small extent of the seaward side of the Island is also fall within territorial sea of the mainland as well. Hence, the coordinates where the GPB anchored is within our territorial sea.

At this point the vessel has not yet beach any of our national law and international law. This is because the pass through of the GPB in our territorial sea is sanctioned by Article 17 of UNCLOS ‘Right of Innocent Passage’. Moreover, Article 18 allows the vessel to stop and anchor as well if it is to assist persons, ships or aircraft in dangers or distress. However, Article 19 provided that the right of innocent of passage is prevailed as long as the passing vessel poses no harm to the peace, good order or security of the coastal State. Paragraph 2 of this Article provided activities that lead to prejudicial of the peace, good order or security. One of the indicated activities, Sub-paragraph (g), is loading or unloading of any commodity, currency or person contrary to the customs, fiscal, immigration or sanitary laws and regulations of the coastal state. These provisions make the action of the GPB in stopping and anchoring without 1 UNCLOS Article 121: http://www.lawofthesea.net/Konvencija/part8.text2 UNCLOS Articles 13: http//www.lawofthesea.net/konvencijia/part2.txt; 3 Triggs, International law: Contemporary Principles and Practices, Chapter 6, 2006; UNCLOS Articles 3-5: http//www.lawofthesea.net/konvencijia/part2.txt; 4 http://www.google.com.au/search?hl=en&q=12+nautical+miles&meta=5 http://www.google.com.au/search?hl=en&q=12+miles&btnG=Search&meta=

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purpose to assist other people and ships in danger is a breach of UNCLOS. In addition, the action of lowering the rowboats breaches both UNCLOS and our national law, particularly the immigration law. This assumed that the intention of lowering of the rowboats is to unload the 30 Bellus nationals and to bring them into our country illegally.

The hot pursuit that carried out by our patrol boat is sanctioned under Article 1116. This is because the pursuit has the legitimate characteristics provided by the provision. First, our patrol boat engages in the pursuit immediately when the GPB sped toward the high sea. Second, the pursuit was started from our territorial sea (established above). Third, our pursuit began after our patrol boat radios the vessel to maintain its position pending the arrival and boarding of our Officers. Lastly, the pursuit the GPB was carried out with our clearly marked coastal patrol boat.

3.2 Legal Matters of the Second Contact

The second contact was at High seas; a territory that opens to all States, whether landlocked or coastal7. At High seas a State or vessel has among other things a freedom of navigation, freedom of overflight and freedom of fishing. These freedoms are exercisable subjected to other provisions of UNCLOS and other international law. At the High seas the flag State has exclusive jurisdiction over a vessel that flies its flag. The Permanent Court of International Justice’s (PCIJ) decision on Lotus case provided that vessels on High seas are subject to no authority except that of the state whose flag they fly8. This provided that only the state of Bellus has exclusive jurisdiction over the GPB. Nevertheless, there are three exceptions to the freedom of High seas and exclusive flag State jurisdiction. The exceptions are the suppression of the act of piracy, the enforcement of Article 17 of Vienna Convention on Illicit Traffic in Narcotic Drug and Psychotropic Substances (CITNDPS) and the power of hot pursuit as discussed above9.

Article 105 of UNCLOS provided that a state may use its warships or military aircraft to 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. Article 101 defines the act of piracy to include violence action or detention committed for private purpose by the crew or passengers of a private ship against persons or property on board of the ship and the incident takes place at High seas. This definition would engulf the incident happened on the GPB that involved two armed passengers shot and seriously wounded one of the crew members and threaten them with death if the Master refuse to turn back the GPB as an act of piracy. This inturns lifted the exclusive jurisdictional power of the flag state over the GPB and allows any state to intercept, stop and seize the GPB.

6 UNCLOS Article 111: http//www.lawofthesea.net/konvencijia/part7.txt7 UNCLOS Article 87: http//www.lawofthesea.net/konvencijia/part7.txt8 Triggs, International law: Contemporary Principles and Practices, Chapter 6, 20069 Triggs, International law: Contemporary Principles and Practices, Chapter 6, 2006; Article 17 of Vienna Convention on Illicit Traffic in Narcotic Drug and Psychotropic Substances

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Article 17 of CITNDPS provided, subject to certain conditions that any state can aboard, search and take appropriate actions regarding to a vessel, its passengers and cargo on board at High seas. The conditions that need to be met are that the target vessel must involve in illicit trafficking of narcotic drugs and psychotropic substances. In addition, there should be reasonable grounds to suspect that the vessel in concerned engages in trafficking narcotic drug illegally and a permission to intercept, search and suppress the activities should be first granted by the flag state10. Paragraph 5 provided that any state invoked this provision shall take necessary measures to avoid endanger the safety of life at sea, the security of the vessel and the cargo.

The combination of Articles 105 of UNCLOS and 17 of CITNDPS provide the legal ground for our Officers to aboard and search the GPB. This is assumed that our intelligence pick up that the GPB is illegally trafficking narcotic drug as was found on board. This is even so when there isn’t any prior permission granted by the State of Bellus as because our Officers are responding to the distress signal as well as invoking the above provisions. Moreover, our Officers are within our legal right to detain the crew, GPB’s Master and passengers in light that they have breached our immigration, trafficking of narcotic and criminal laws. The decisions of Lotus and Congo v Belgium cases provide the legal ground11. It provided that the pursued State needs to share power with the flag state in prosecuting the offenders. However, in the act of ‘agents for the international community’ and when the offender doesn’t hold official office then cooperation with flag state is not required12. Nevertheless, our Officers should have taken reasonable care to avoid endanger of life. Hence, the action of Dick Deadly poses legal consequence to our nation and Authority.

4. Advice

The incident at the first contact does not pose any legal consequence to our nation and Border Management Authority. All actions taken by our patrol boat and Officers are within the boundary of UNLOS. On the other hand the GPB and its crew and passengers have breached Article 17 of UNCLOS and our national immigration law by lowering the rowboats into our territorial seas and assisting illegal immigrants to enter our country.

The incident at the second contact poses legal consequence to our nation and particularly our Border Management Authority. The actions associated with the claiming aboard, searching and detaining the GPB, its crew, Master and passengers are sanctioned by UNCLOS and CITNDPS and other legal principles. Nevertheless, we should cooperate with the States involved in prosecuting of the offenders. Lastly, our Officers have failed to ensure the safety of life of the crew, passengers and the Master on board of the GPB. At this end, our nation breaches the CITNDPS, where we are one of the signatories to the Convention.10 UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 198811 France V Turkey, PCIJ Reports, Series A, No 10; Arrest Warrant of 11 April 2000 (Congo V Belgium) case, ILJ Report 2001, 3, para 50 and 5112 France V Turkey, PCIJ Reports, Series A, No 10; Arrest Warrant of 11 April 2000 (Congo V Belgium) case, ILJ Report 2001, 3, para 50 and 51

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