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«Upholding the Australian Constitution Volume Seventeen Proceedings of the Seventeenth Conference of The Samuel Griffith Society Greenmount Beach Resort, ...»

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Sovereignty over the t e r r i t o r i a l sea is not absolute, but is subject to t h e principles of customary international law. The most significant exception is the r i g h t o f a l l s t a t e s to enjoy innocent passage through other s t a t e s ’ t e r r i t o r i a l seas. Generally, 20 A u s t r a l i a exercises a c l a i m to the t e r r i t o r i a l sea w i t h a breadth of 12 nautical miles. 21 The sovereignty of Archipelagic Islands, s u c h a s the Cocos/Keeling Islands (which are excised under the M i g r a t i o n A c t ) extends to all the waters enclosed by the archipelagic baselines, their bed and sub-soil and airspace above. There is a r i g h t o f innocent passage t h r o u g h a r c h i p e l a g i c w a t e r s. Archipelagic Islands may have designated sea-lanes and air routes through the archipelagic waters in which all states enjoy rights.

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Rights and obligations of coastal states A c o a s t a l s t a t e, i n r e s p e c t i n g t h a t r i g h t o f innocent passage, may a d o p t l a w s and regulations on many aspects of navigation t h r o u g h the t e r r i t o r i a l seas, which m u s t be given due publicity and m u s t be complied w i t h by foreign shipping. The c o a s t a l s t a t e may designate sea-lanes and t r a f f i c s e p a r a t i o n schemes for the regulation of shipping through its territorial seas.

Sovereignty over the territorial sea includes criminal jurisdiction on board foreign ships p a s s i n g t h r o u g h t h e t e r r i t o r i a l s e a. Article 27(2) of UNCLOS I I I enables the c o a s t a l s t a t e to “take any steps a u t h o r i s e d by i t s laws for t h e purpose of a r r e s t or investigation on board a f o r e i g n s h i p ”. The provision t o take “any steps” can be contrasted with subsequent provisions enabling coastal s t a t e s “control” over t h e i r EEZ. Kaye s t a t e s t h a t “the c o a s t a l S t a t e is t o determine for itself what management principles it might wish to apply within its territorial sea, as an exercise of its sovereignty”. 22 Jurisdiction within the territorial sea T h e t e r r i t o r i a l s t a t e h a s j u r i s d i c t i o n over foreign merchant vessels in i n t e r n a l w a t e r s, 23 and over crimes 24 committed on board such vessels. 25 T h i s j u r i s d i c t i o n i s c o n c u r r e n t w i t h t h a t o f t h e f l a g s t a t e. 26 Foreign ships t h a t e n t e r i n d i s t r e s s may not be subject to the jurisdiction of the coastal state. 27 In Wildenhus’s Case, 28 a t r e a t y between the United S t a t e s and Belgium granted each state jurisdiction necessary to maintain order on board merchant vessels located in internal waters. In that case, a murder below decks committed on board a B e l g i a n ship in a U S p o r t w a s enough to found t h a t j u r i s d i c t i o n.

Generally, the jurisdiction of the coastal state is not exercised unless the offence disturbs the peace, dignity or tranquillity of the port.

As O’Connell comments, “a S t a t e h a s the competence under i n t e r n a t i o n a l law to extend its criminal law to any area which is subject to its sovereignty”. 29

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Exclusive Economic Zone Under UNCLOS I I I, c o a s t a l s t a t e s r e t a i n sovereign r i g h t s over the exclusive economic zone, although these sovereign rights l i m i t t h e c l a s s i c a l f r e e d o m s o f t h e H i g h S e a s o f other s t a t e s. P a r t V of UNCLOS I I I creates a specific legal

regime, the Exclusive Economic Zone (EEZ) in which coastal states have:

“Sovereign r i g h t s for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of waters superjacent to the seabed and of the seabed and i t s subsoil, and w i t h r e g a r d t o o t h e r a c t i v i t i e s o f t h e e c o n o m i c e x p l o i t a t i o n a n d e x p l o r a t i o n of the zone, such as t h e p r o d u c t i o n o f energy f r o m t h e w a t e r, currents a n d winds”.

Under Article 57, this EEZ is not to extend beyond 200 nautical miles from

the baselines. With regard to the M i g r a t i o n A c t, Article 73(1) enables a state:

“In the exercise of i t s sovereign r i g h t s to explore, exploit, conserve a n d manage the living resources in the exclusive economic zone, take such measures, including boarding, inspection, arrest and j u d i c i a l proceedings, a s may be necessary to ensure compliance w i t h the laws adopted in compliance with this convention”.

Shearer suggests that coastal States merely have preferential rights to the

fish stocks within the EEZ. Article 58(2) applies:

“……Articles 88 to 115 35 and other pertinent rules of i n t e r n a t i o n a l law t o the exclusive economic zone in so far as they are not compatible with this part”.

Commentators have suggested t h a t t h e d e t a i l e d a n d specific a r t i c u l a t i o n of enforcement powers of a coastal state contained in P a r t V o f UNCLOS I I I i s markedly d i s t i n c t from s i m i l a r, more general powers contained elsewhere in UNCLOS III. 36 Australian maritime zones The Commonwealth’s sovereignty w i t h regard to the t e r r i t o r i a l sea w a s proclaimed by s. 6 of the Seas and Submerged Lands Act 1973. A u s t r a l i a exercises a claim to twelve nautical miles of territorial sea. The Commonwealth has claimed a contiguous zone beyond the territorial sea. Similarly, Australian sovereignty over the contiguous zones and an Exclusive Economic Zone have also been claimed by subordinate regulation. 37 These legislative enactments have effectively adopted the i n t e r n a t i o n a l conventions signed by A u s t r a l i a i n t o domestic law.

The c o a s t a l state does have sovereign rights to the resources w i t h i n t h e t e r r i t o r i a l sea; however, i t s a b i l i t y to enforce i t s r i g h t s w i t h i n the EEZ i s r e s t r i c t e d to the conservation of the m a r i n e environment. Arguably, vessels stopped and boarded for M i g r a t i o n Act offences in the EEZ are under t h e jurisdiction of the flag state and not subject to the jurisdiction of the coastal s t a t e. 38 Generally speaking, the laws of the flag state apply in relation to ships, and except in certain circumstances, only the flag state can exercise jurisdiction in relation to ships entitled to fly the flag of that state (Article 92, UNCLOS III).

It has been argued that coastal state jurisdiction over the high seas would not recognise the operation of A u s t r a l i a ’ s c u s t o m s a n d m i g r a t i o n l a w s w i t h i n the EEZ. 39 Therefore, the establishment of jurisdiction beyond the territorial sea is essential for the enforcement of c o a s t a l s t a t e laws upon vessels of flagged states operating within the EEZ and adjacent high seas.

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Commonwealth P a r l i a m e n t m u s t r a t i f y an i n t e r n a t i o n a l t r e a t y before i t can operate domestically. A d d i t i o n a l l y, c u s t o m a r y i n t e r n a t i o n a l law is not obliged to be followed unless r a t i f i e d by d o m e s t i c l e g i s l a t i o n. 51 As Shearer h a s s t a t e d, Australia must ensure that it carefully and selectively adopts international law into d o m e s t i c l a w to “ g u a r d a g a i n s t the danger of … h a s t y incorporation of international law to the possible prejudice of the beneficial development of t h e common law of Australia”. 52 There is a general presumption of law that Parliament would not intend a s t a t u t e t o b e inconsistent w i t h t h e e s t a b l i s h e d rules of i n t e r n a t i o n a l law a n d comity of nations. In Chhu Kkeng L i m v. M i n i s t e r for I m m i g r a t i o n, Local Government and Ethnic Affairs, 53 the High Court favoured the construction of a Commonwealth statute which accorded with the obligations of Australia under an international treaty.

The High Court has clarified the circumstances in which that presumption can be used to i n t e r p r e t domestic legislation. Generally, there m u s t be some ambiguity within the legislation which would provide recourse to international l a w t o a s s i s t w i t h s t a t u t o r y i n t e r p r e t a t i o n. 54 However, recourse to international law to assist in the construction of domestic law is not required if the statute expresses a c l e a r i n t e n t i o n which is contrary to i n t e r n a t i o n a l law. 55 F u r t h e r, there is no requirement in the Constitution that the Commonwealth’s legislative power is confined w i t h i n the l i m i t s of A u s t r a l i a ’ s legislative competence a s recognised by international law. Therefore, our constitutional system limits full review by A u s t r a l i a n courts in determining whether domestic legislation h a s breached international law. 56 A l t h o u g h t h e r e i s a s t r o n g p r e s u m p t i o n in the common law a g a i n s t t h e e x t r a - t e r r i t o r i a l operation of law ( e x t r a t e r r i t o r i u m jusdicenti impune non p a r e t u r : “the sentence of those a d j u d i c a t i n g o u t s i d e t h e i r j u r i s d i c t i o n can be disobeyed w i t h i m p u n i t y ” ), the A u s t r a l i a n P a r l i a m e n t is sovereign a n d expresses the will of the Australian people within the democracy. 57 Australia’s sovereignty, as espoused by the application of the M i g r a t i o n A c t to the Islands excised from the migration zone, is within prerogative power. 58 As

the President of this Society wisely stated in the 2000 Proceedings:

“Some c o m m e n t a t o r s say t h a t the increasing inter-dependence of t h e nations of the world, and the need for Australia to relate to other nations, have made i t necessary for us to t r a n s f e r some of our sovereignty to t h e United Nations. It is true that we cannot live in isolation. It does not follow t h a t we should allow remote C o m m i t t e e s to decide w h a t r i g h t s t h e inhabitants of Australia should have. The decisions they have so far made do not convince us that they have more wisdom than our own processes can provide”. 59

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seizing and disposing of the drugs. However, there would be no jurisdiction to a r r e s t or charge the persons involved w i t h a t t e m p t i n g to c o m m i t a n offence against Australian law, since no offence would have occurred within Australia’s territory or territorial sea”.

P a r a g r a p h 42: “However, if there h a s been a contravention of c u s t o m s, fiscal, immigration or sanitary law, and the ship is leaving Australia after having been used in the contravention, t h e r e i s j u r i s d i c t i o n to a r r e s t t h e persons on board, since the coastal state may exercise the control necessary to punish infringements of customs, fiscal, sanitary and immigration laws which have occurred within its territory or territorial sea”.

34. Shearer, loc. cit., (1986); McLauchlin, C o a s t a l S t a t e U s e o f F o r c e i n t h e E E Z Under the Law of the Sea Convention ( 1 9 9 9 ), 1 8 ( 1 ) U n i v e r s i t y o f T a s m a n i a Law Review, 11; O’Connell, op. cit. ; Churchill, Lowe, op. cit..

35. U N C L O S I I I, which incorporates provisions s u c h a s A r t 8 8 : “ N o s t a t e m a y validly purport to subject any part of the high seas to its sovereignty”; Art 94: “Duties of flag states”; Art 111: “Right of hot pursuit”.

36. Kriwoken, Haward, VanderZwaag, Davis, Oceans Law and Policy in the PostUNCED Era: Australian and Canadian P e r s p e c t i v e s (1996), Kluwer L a w International, London, at 59 – 69.

37. Commonwealth Gazette S290, 1 August, 1994 (proclamation 29 July, 1994), incorporated into the Seas and Submerged Lands Act 1973, ss. 10B and 13B.

38. McLauchlin, op. cit., at 14 - 16.

39. Ibid.; Shearer (1995), op. cit. ; Donaghue, Sovereignty and International Law (1995), 17 Adelaide Law Review, 213: 1. No jurisdiction as an offence is yet t o t a k e p l a c e i n t h e t e r r i t o r i a l s e a. 2. Duty to prevent r a t h e r t h a n b o a r d and a r r e s t. 3. No internationally recognised exception to the doctrine of freedom of the seas and flag state jurisdiction.

40. Ss 184A(5), 184B(1), C u s t o m s A c t 1901; ss 245B(5), 245C(1), M i g r a t i o n A c t 1958.

41. Polyukhovitch v. Commonwealth (1991) 172 CLR 501, at 605 per Deane J, at 635-6 per Dawson J.

42. Fishwick v. Cleland (1960) 106 CLR 186. There is no requirement in t h e Constitution that the Commonwealth’s legislative power is confined within the l i m i t s of A u s t r a l i a ’ s legislative competence a s recognised by i n t e r n a t i o n a l law: H o r t a v. Commonwealth (1994) 181 CLR 183 a t 188-9, per Mason C J, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh J J.

H o w e v e r, t h i s i s i n d i r e c t c o n t r a s t t o t h e pacta sunt sevanda (agreements are binding) principle prescribed by Art 2 (2) of the C h a r t e r o f t h e U n i t e d N a t i o n s, a s a m e n d e d ( i n c l u d i n g t h e I n t e r n a t i o n a l Court of Justice), (done at San Francisco, 26 June, 1945), in force 24 October, 1945; and Art 26 of the Vienna Convention on the Law of Treaties (done at Vienna, 23 M a y, 1 9 6 9 ), entry into force for Australia and generally, 27 January, 1980.

43. Polyukhovich v. Commonwealth, loc. cit., at 599 per Deane J. The nexus can be defined between the state and the subject of the law by considering t h e t e r r i t o r i a l, n a t i o n a l i t y, protective, universality and passive personality

principles; for more detail see Reicher (ed.), Australian International Law:

C a s e s a n d M a t e r i a l s (1995), The Law Book Company, Sydney, at 244-6.

44. The c r i t e r i a f o r e s t a b l i s h i n g a v a l i d n e x u s are discussed by Triggs. They are: (1) the t e r r i t o r i a l principle, which applies when an offence occurs within the territory of the prosecuting state; (2) the nationality principle, which applies when the offender is a national of the prosecuting state; (3) the protective principle, which is exercised where a n e x t r a - t e r r i t o r i a l a c t threatens the integrity of the prosecuting state; (4) the passive personality principle, which applies where the victim of the offence is a national of the prosecuting s t a t e ; and (5) universality principle, which p e r m i t s t h e exercise of jurisdiction by a state in respect of criminal acts committed by non-nationals, where the accuser’s a t t a c k upon i n t e r n a t i o n a l order is of common concern to all mankind. Triggs, A u s t r a l i a War Crimes Trials: A M o r a l N e c e s s i t y o r a L e g a l M i n e f i e l d ? (1988), 16 Melbourne University Law Review, 382, cited in Reicher (ed.), op. cit., at 244-245.

45. L i a n g s i r i p r a s e r t v. U n i t e d S t a t e s [1991] 1 AC 225, at 251.

46. Davis v. Commonwealth (1988) 166 CLR 79 at 111.

47. “An act of the executive as a matter of policy performed in the course of its r e l a t i o n s h i p w i t h a n o t h e r S t a t e, including i t s r e l a t i o n s w i t h t h e s u b j e c t s of that State … is an act of State”: Wade, Act of State in English Law: Its Relations w i t h International L a w (1934), 15 B r i t i s h Yearbook of International Law 98, at 103.

48. Coe v. Commonwealth (1979) 24 ALR 118 a t 128, per Gibbs J; H o r t a v.

Commonwealth (1994) 123 ALR 1 a t 6 a n d 9; found t h e c h a r a c t e r of t h e actions and decisions made by the government were not j u s t i c i a b l e ; t h e court held i t was unnecessary to answer the question of actions being justiciable; per Mason C J, Brennan, Deane, Dawson, Toohey, Gaudron, and McHugh J J.

49. Bradley v. Commonwealth (1973) 128 CLR 557.

50. Mason, The Relationship Between International Law and National Law, and i t s A p p l i c a t i o n i n N a t i o n a l C o u r t s (1992), 18 C o m m o n w e a l t h L a w B u l l e t i n 750, at 750.

51. Kartinyeri v. Commonwealth (1998) 195 CLR 337, at 384-5 per Gummow and Hayne J J.

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