Coast guards and other maritime law enforcement agencies (LEA) are authorised by public mandate to enforce law and order at sea, to represent national jurisdiction and to protect individual human rights. Whilst this authorisation is a fundamental pillar of a fair trial, most seagoing ships are privately operated vessels that lack the privilege of exercising jurisdiction. There are 108,787 non-governmental ships (as of June 2024, according to the United Nations Conference on Trade and Development, UNCTAD) compared to 3,026 naval ships (as of 2024, according to the World Directory of Modern Military Warships) and additional coast guard vessels. These critical issues of preventing judicial violations of human rights and ensuring compliance with rule of law standards on non-government ships are often neglected.
Law enforcement rights and powers of investigation, prosecution, and justice are typically considered internal affairs of a State. However, the differing reach and availability of LEAs between land and sea necessitate a reflection from an international law perspective. On land, law enforcement officials are usually in close proximity to the scene of a crime or other unlawful act, allowing them to control investigations and uphold the principles of a fair trial. In contrast, the vast distances on the high seas, outside territorial waters, and the absence of LEAs make it imperative to address the responsibilities and authorisations for upholding jurisdiction on non-government ships in international waters. This discrepancy highlights the need for a robust international legal framework to ensure the protection of human rights and the rule of law at sea.
The Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA Convention) and the International Ship and Port Facility Security Code (ISPS Code) address unlawful acts against the safety of navigation and port security. The United Nations Convention on the Law of the Sea (UNCLOS) provides a framework for law enforcement against ships. Given the evolution of a ship master’s authority and powers over the last century, it is high time to discuss violence at sea and analyse law enforcement on ships in the absence of LEAs. This examination is essential to ensure the effective protection of maritime safety and security, as well as the upholding of human rights and rule of law standards in international waters.
Protection at Sea
For centuries, the role of a ship’s master was inseparably linked to disciplinary control and navigational accountability. The master was responsible for the ship, the people, and the property on board, serving as the absolute legal authority at sea. Empowered to investigate, preserve evidence, deprive rights, and enforce the law, the master embodied the concept of maritime jurisdiction. However, this traditional model is no longer adequate for modern maritime activities, which require a more nuanced and comprehensive approach to law enforcement and jurisdiction at sea.
With the widespread recognition of the principles of the rule of law in the 20th century, flag States have regulated disciplinary matters on board ships, addressing issues related to the vessel, its personnel, and its cargo. However, matters concerning the protection of jurisdiction and due judicial representation have often been neglected. Legislators have concentrated legal authority within the judiciary, yet they have not adequately regulated the competencies needed for judicial assistance at sea. This oversight has created gaps in the enforcement and protection of legal rights in the maritime context.
Provisions on detention, confinement and restraint for protecting the safety and security of ships, personnel, and cargo can be found in various maritime laws. For instance, such provisions are outlined in Article 169 of the Malta Merchant Shipping Act, Section 811(b) of the Marshall Islands Maritime Act, Article 132 of the Bahamas Merchant Shipping Act, Chapter 5 of the Antigua & Barbuda Merchant Shipping Act, and Section 121 of the German Maritime Labour Act. A master is empowered to enforce lawful orders related to the navigation of the ship and the preservation of good order on board. This authority enables the master to take all necessary measures and issue orders to maintain the integrity of the ship, protect individuals and cargo, prevent impairment, and resolve any disruptions.
Regulatory Need
A master’s orders have a distinctive and immediate effect to remedy impairments or prevent situations of immediate impairment. An incident on a ship that harms the vessel, persons, or property also impairs the legal order of the flag State.
Determining a violation of the law and restoring the integrity of the legal order is the distinctive judiciary function of courts and their qualified representatives, such as judges, prosecutors, and police officers. They ensure that the principles of justice are upheld within the framework of the rule of law, including the application of repressive measures throughout investigations and the preservation of evidence. The results of their efforts only become visible long after the incident.
In fact, one State has regulated violence on a ship: with the Cruise Vessels Safety and Security Act (CVSSA) of 2010, the USA introduced public law enforcement competence on cruise ships sailing in its territorial waters. However, this regulation is flawed due to discriminatory concerns, as criminal offences and violence against persons on non-governmental ships other than passenger ships under US jurisdiction are not addressed.
In cases of alleged offenses on a cruise ship, the provisions of the CVSSA abandon the presumption of innocence in favour of unconditionally safeguarding a potential victim on board. It is speculative to assume that the adoption of the CVSSA is primarily a lobbying accomplishment to protect cruise lines from litigation or other legal risks related to sexual offenses and violence. The CVSSA does little to improve the concept of exercising jurisdiction at sea. Nonetheless, it is commendable that US lawmakers have recognised the need for adequate judicial representation at sea. It is important to recognise that masters are not qualified to represent the jurisdiction of a flag State in the same way that a police officer is. The CVSSA, amending Chapter 35 of US Code 46, addresses this deficiency by certifying certain crew members as qualified augmentees to LEAs on cruise ships in US territorial waters.
Statutory Gap
Available figures underline the practical significance of this theoretical concern: there are 108,787 non-governmental ships (as of 06/24, UNCTAD), employing 1,892,720 seafarers (as of 10/21, International Chamber of Shipping, ICS). Ships are workplace for approximately 27,000,000 fishermen (11/21, UK Parliament) and serve as an annual leisure resort for 31,700,000 cruise passengers (04/24, Cruise Lines International Association, CLIA). The total number of people at sea is greater than the population of Italy. According to CVSSA crime statistics from the US Department of Transportation in 2023, over 42 sexual offences per 100,000 people were attributed to one cruise company alone. This number is higher than US national average (40 per 100,000) or New York City (28 per 100,000). No merchant or fishing vessel and no cruise ship outside the CVSSA, has due judiciary representation or competence on board.
Without regulating the due representation of jurisdiction on board, every repressive order in support of law enforcement allows for two mutually exclusive interpretations of accountability:
(1) If an authorised but unregulated master issues repressive orders in pursuit of the legal order, he would represent the jurisdiction in own rights and could be called a “Judicial Master”. His powers would be equivalent to those of a judge, a prosecutor and police officer combined. All his reports and evidence would be used in court without adherence to legal standards.
(2) Conversely, if an unauthorised and unregulated master issues repressive orders for any purpose, he is acting as a private individual and the legality of all his acts is at least doubtful. He could be described as a “Criminal Master” and would permanently expose himself to the risk of prosecution.
Either way, the principle of a fair trial under the rule of law suffers the gravest consequence.
Justice Dilemma
The rule of international law balances national sovereignty over legislation with the fundamental right of a fair trial. There are no direct provisions in international law that would allow intervention to regulate the modern role and responsibilities of a master in the context of law enforcement instruments within national legislation.
Article 94(2) UNCLOS presents a path out of this dilemma and offers the interpretation that, based on the wording “in particular,” States may be encouraged to regulate the competences for judicial representation on non-governmental ships. The dynamic nature of maritime reality underscores this consideration, and the wording “in particular” in Article 94(2) acknowledges unknown future matters and the corresponding need for common legal standards. Critics might argue that Article 94(2) is exhaustive and point out that jurisdictional affairs are not explicitly mentioned in the article. They might also contend that the virtue of national sovereignty over legislation is non-negotiable in interpreting “in particular.” However, these critics overlook the changes in judicial representation in modern shipping and the exercise of State power and legal values. In today’s world, UNCLOS would likely have considered fair trial principles a matter of international legal significance.
US lawmakers have recognised this dilemma and passed the CVSSA. However, its discriminatory reach means that law enforcement within the scope of US jurisdiction is not exercised equally for all seafarers, fishermen, and people at sea. Worse, with the US’s dominance over international cruise procedures, the US standard cruise practice, privileged by CVSSA and therefore simplified, signals to the global cruise market that repressive law enforcement procedures are feasible, irrespective of the qualified prerequisites of the CVSSA.
Proposition
The chances of flag States enacting domestic legislation and the international community addressing the matter are just as slim. Nevertheless, the International Maritime Organisation, as the guardian of UNCLOS and Article 94, could take the initiative and develop best management practices of law enforcement assistance. This would ensure legal protection for all fishermen, seafarers and other people at sea, and eventually providing a reliable framework of conduct for all masters in command.
Philippe Hermes, who qualified as an attorney at law in 2008, is the Director of Téthys Naval in Brussels. He is a renowned expert in international maritime law, admiralty law, and shipping law, with a particular focus on the legal frameworks governing law enforcement at sea. As a certified security provider, Philippe contributes his expertise to international organisations and non-governmental organisations, specialising in regimes of law enforcement, security, and human rights in cross-border and cross-sectorial contexts.