International maritime criminal jurisdiction : a Maltese perspective.

Abstract

The thesis examines the exercise of international maritime criminal jurisdiction with respect to crimes perpetrated at sea from a Maltese point of view. Malta is an island State and is particularly vulnerable to the effects of such crimes. Unfortunately, very often, the effects of these illegal activities extend from the sea to the coastal State. This is particularly true in the case of illicit trafficking of narcotic drugs and psychotropic substances, and migrant smuggling. Over the last years, there has been an alarming increased incidence of these crimes. The problem has become so massive that it is causing a considerable strain on the country's police and military forces, as well as contributing to the uncontrollable problem of irregular immigration which our island continually faces. Malta is also susceptible to illegal, unregulated and unreported fishing. The adverse effects of this crime are not only the indirect theft from licensed fishermen, but also severe effects on the sustainability of fish stock, and on the marine ecosystem, in Maltese territorial waters and the Maltese Exclusive Fishing Zone (EFZ). Furthermore, Malta's accession to the EU in 2004 has brought significant changes to the ways in which our 25 nautical mile EFZ is managed. The thesis also examines the EU perspective. The thesis also focuses on the influence of international law, particularly the law of the sea, on domestic legislation. The main international treaty regimes at play are dealt with. These are: The 1982 United Nations Convention on the Law of the Sea, the 1988 United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substance and the Protocol against the Smuggling of Migrants by Land, Sea and Air, devised, inter alia, to deal specifically with the prevention and punishment of crimes at sea. Maltese legislation which has been promulgated to put into effect these international rules, is also examined, with special reference to criminal law. There is an ongoing discussion on the impact of specific provisions of Maltese laws on crimes at sea, such as the Dangerous Drugs Ordinance, the Medical and Kindred Professions Ordinance, the Territorial Waters and Contiguous Zone Act and the Criminal Code. Recognising the problems arising from the distinction between legislative jurisdiction and enforcement jurisdiction, the thesis also addresses the specific problems encountered by the State seeking to enforce the said laws. Maritime jurisdictional issues arise, for example, when coastal States attempt to arrest criminals in zones in which the said State does not enjoy sovereignty, such as the contiguous zone. When can a State exercise jurisdiction over a crime committed on the high seas? Often, it is the nature of the crime itself which may disallow a State from taking action on the high seas. This is particularly true in the case of crimes which are not considered to be universal, such as drug trafficking. Issues such as the difficulty in collection of evidence at sea, for example, result in a low rate of successful prosecutions. The powers which maritime enforcement officers enjoy, as well as the limitations on such powers, ultimately determine whether criminals can be arrested and apprehended at sea. The final part of the thesis examines the main conclusions arrived at throughout the study in the light of possible proposals to improve the implementation and enforcement of the relevant international and Maltese legislation.