PRIVILEGES AND IMMUNITIES OF WARSHIPS
To read the entire series so far in order of occurrence click here: http://americanadmiraltybooks2.blogspot.com/p/the-enduring-principals-of-maritime.htmlPRIVILEGES AND IMMUNITIES OF WAR SHIPS:
Warships, defined as strictly military vessels, have some unique duties imposed upon them by international law and enjoy certain privileges unique to their class. Customary international law and UN charter articles charge warships with the "suppression of piracy and the slave trade". This may sound like something out of the nineteenth century to non-mariners, but seafarers since the 1990s know that piracy in several forms is far from being suppressed and the slave trade is not unheard of in a few parts of world.
(1) SUPPRESSION OF PIRACY:
One major problem with the suppression of piracy is that there is too narrow a definition of piracy in both national and international law. Several hijackings of various cruise ships in the 1960s and 1980s, and the disappearance of the yacht PIRATE LADY illustrated the types of cases complicated by existing narrow definitions of the crime of piracy. In all of these incidents the vessels were forcibly seized by bandits who had embarked peacefully from the shore. The cruise ships were taken over by people posing as passengers. It is likely the yacht PIRATE LADY was taken over by people the crew regarded as guests.
These crimes imposed upon the ship's crew and passengers had all of the consequences of traditional piracy including sudden violent death. Yet these crimes lacked the element of "assailing banditry conducted from a vessel or aircraft and directed against another vessel or aircraft" to qualify the the crime clearly as piracy and invoke the severe repressive measures and universal authority to act authorized by national and international law.
International convention has defined piracy as any of the following acts:
"(1) Any illegal acts of violence, detention, or any act of depredation, committed for private ends by the crew or passengers of a private ship or a private aircraft, and directed :
(a) On the high seas, against another ship or aircraft:
(b) Against a ship, aircraft, persons or property in a place outside the jurisdiction of any state.
(2) Any act of voluntary participation in the operation of a ship or an aircraft with knowledge of facts making it a pirate ship or aircraft.
(3) Any act inciting or intentionally facilitating an act described in sub-paragraph 1 or sub-paragraph 2 of this article. "
Note that the official definition of piracy the assault must originate from another vessel or aircraft. So the pirates getting so much media attention (in 2013) off of Somalia are definitely pirates by anyone's definition. Yet so were the Green Peace operatives who boarded that Russian off shore oil rig, though eventually the piracy charge was reduced. At this writing (2013) as well as when this work was originally penned (1995) there is no shortage of traditional piracy in the form of assailing bandits who attack who attack ships from small craft off of Somalia, in certain straits, and at the entrance to some ports and in certain straits in Latin America and the Far East. However some of the most newsworthy incidents reported in the media as "piracy" were actually instances of "marine terrorism", a crime, along with ship hijacking that benefits from a narrow definition of piracy.
Marine terrorists are not the only group to benefit from this narrow definition of piracy. Many marine insurance policies include the "Inchemaree Clause". This clause, which includes "piracy" as a covered peril has been ruled to exclude from coverage numerous forms of non-assailing banditry. Particularly in the case of stolen recreational craft this clause, coupled with the narrow definition of piracy, often allows insurance companies to avoid payment for stolen boats despite "all risk" policy language on the cover documents. This illustrates that there are political and economic ramifications to the definition of and effective enforcement against piracy. Regardless of the outcome of the discussions over the definition of piracy, the warships of the world are charged with its suppression.
(2) SUPPRESSION OF THE SLAVE TRADE:
The best current information indicates that the sea borne trade in slaves is well suppressed. However, the smuggling of illegal aliens into certain countries at times features many conditions of the slave trade. The worlds warships have the duty to suppress both piracy and the slave trade. In order to carry out this duty , warships have the right of approach.
(3) RIGHT OF APPROACH
The right of approach may be exercised by a warship relative to a merchant vessel at any time in war or peace. The purpose of the right of approach is to allow warships to ascertain the true character of a vessel as being other than a pirate or slaver. within special enforcement zones the right of approach includes observation of other elements of a vessel's character, especially in the case of fishing vessels. In the territorial seas the right of approach covers all elements of a merchant vessel's character of concern to national law. On the high seas however, merchant shipping is not bound to heave to or await the approach of a warship. When a warship contacts a merchant vessel on the high seas, the merchant vessel is bound only to establish her identity and nationality by display of her name and national flag. If a warship stops and boards the merchant man and the action proves unjustifiable, compensation must be paid to the merchant ship owners. Sometimes an apology to the flag state must be made as well. The right of approach on the high seas is codified under International Law for the following circumstances:
(1) A vessel is suspected of piracy
(2) A vessel is suspected of being a slaver
(3) A vessel is flying false colors or refusing to show her flag
(4) A vessel is is suspected of interference with treaty rights
More limited rights of approach exist relative to protection of submarine cables on all parts of the high seas, and in certain parts of the high seas relative to fisheries law enforcement.
TO BE CONTINUED: NEXT WARSHIPS ENTERING TERRITORIAL SEAS, INTERNAL WATERS, AND PORTS
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