Prosecution of maritime terrorists : the role of national courts in ensuring accountability

Maritime security has emerged as a critical legal and political issue in the contemporary world. Terrorism in the maritime domain is a major maritime security issue. Ten out of the 44 major terrorist groups of the world, as identified in the US Department of State’s Country Reports on Terrorism, have maritime terrorism capabilities. Prosecution of maritime terrorists is a politically and legally difficult issue, which may create conflicts of jurisdiction. Prosecution of alleged maritime terrorists is carried out by national courts. There is no international judicial institution for the prosecution of maritime terrorists. International law has therefore anticipated a vital role for national courts in this respect. The international legal framework for combating maritime terrorism has been elaborately examined in existing literature therefore this paper will only highlight the issues regarding the prosecution of maritime terrorists. This paper argues that despite having comprehensive intentional legal framework for the prosecution of maritime terrorists there is still some scopes for conflicts of jurisdiction particularly where two or more States are interested to prosecute the same offender. This existing legal problem has been further aggravated in the post September 11 era. Due to the political and security implications, States may show reluctance in ensuring the international law safeguards of alleged perpetrators in the arrest, detention and prosecution process. Nevertheless, international law has established a comprehensive system for the prosecution of maritime terrorists where national courts is the main forum of ensuring the international law safeguards of alleged perpetrators as well as ensuring the effective prosecution of maritime terrorists thereby playing an instrumental role in establishing a rule based system for combating maritime terrorism. Using two case studies, this paper shows that the role of national courts has become more important in the present era because there may be some situations where no State is interested to initiate proceedings in international forums for vindicating rights of an alleged offender even if there is a clear evidence of violation of international human rights law in the arrest, detention and prosecution process. This paper presents that despite some bottlenecks national courts are actively playing this critical role. Overall, this paper highlights the instrumental role of national courts in the international legal order.

Prosecution of maritime pirates : the national court is dead—long live the national court

Piracy is one of the main maritime security concerns in the contemporary world. The number of piracy incidents is increasing rapidly, which is highly problematic for maritime security. Although international law provides universal jurisdiction for the prosecution of maritime pirates, the actual number of prosecutions is alarmingly low compared to the number of incidents of piracy. Despite many states becoming parties to the relevant international conventions, they are reluctant to establish the necessary legal and institutional frameworks at the national level for the prosecution of pirates. The growing incidences of piracy and the consequential problems associated with prosecuting pirates have created doubts about the adequacy of the current international legal system, which is fully dependent on national courts for the prosecution of pirates. This article examines the possible ways for ensuring the effective prosecution of pirates. Contrary to the different proposals forwarded by researchers in the wake of Somali piracy for the establishment of international judicial institutions for the prosecution of pirates, this article argues that the operationalization of national courts through the proper implementation of relevant international legal instruments within domestic legal systems is the most viable solution. However, this article submits that the operationalization of national courts will not be very successful following the altruistic model of universal adjudicative jurisdiction. A state may enact legislation implementing universal jurisdiction but will not be very interested in prosecuting a pirate in its national court if it has no relation with the piratical incident. Rather, it will be successful if the global community seriously implement the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA Convention), which obligates the states that have some connection with a piratical incident to prosecute pirates in their national courts.

Regulating Multi-National Corporations Through State-Based Laws : Problems with Enforcing Human Rights Under The Alien Tort Statute

Under the Alien Tort Statute United States of America (“America”) Federal Courts have the jurisdiction to hear claims for civil wrongs, committed against non-American citizens, which were perpetrated outside America’s national borders. The operation of this law has confronted American Federal Courts with difficulties on how to manage conflicts between American executive foreign policy and judicial interpretations of international law. Courts began to pass judgment over conduct which was approved by foreign governments. Then in 2005 the American Supreme Court wound back the scope of the Alien Tort Statute. This article will review the problems with the expansion of the Alien Tort Statute and the reasons for its subsequent narrowing.

An examination of the sentencing remarks of Indigenous and non-Indigenous criminal defendants in South Australia’s Higher Courts

Recent Australian research on Indigenous sentencing primarily explores whether disparities in sentencing outcomes exist. Little is known about how judges perceive or refer to Indigenous defendants and their histories, and how they interpret the circumstances of Indigenous defendants in justifying their sentencing decisions. Drawing on the ‘focal concerns’ approach, this study presents a narrative analysis of a sample of judges’ sentencing remarks for Indigenous and non-Indigenous criminal defendants convicted in South Australia’s Higher Courts. The analysis found that the sentencing stories of Indigenous and non-Indigenous offenders differed in ways that possibly reduced assessments of blameworthiness and risk for Indigenous defendants.

Rights versus reality : the difficulty of providing 'access to English' in Queensland courts

This project reviewed the success of the Aboriginal English in the Courts booklet which was published by the Department of Justice and Attorney-General in 2000, with a view to improving access to the courts for speakers of Aboriginal English in Queensland. Surveys and interview were conducted with judges, magistrates, prosecutors, legal aid lawyers and courts registry staff. The feedback from the research has shown that the handbook has had little impact on ‘access to English’ in Queensland courts. The problems relate to the tension between protecting the rights of the accused under an adversarial system and legitimately introducing the issues of language uncertainty to the court in a non-prejudicial manner. In addition, the interviews have brought to light emerging language issues in remote communities that cannot be remedied under existing language policy mechanisms, such as the provision of interpreters or friends of court.

Sentencing and public confidence : results from a national Australian survey on public opinions towards sentencing

This paper examines the critical issue of public confidence in sentencing, and presents findings from Phase I of an Australia-wide sentencing and public confidence project. Phase I comprised a nationally representative telephone survey of 6005 participants. The majority of respondents expressed high levels of punitiveness and were dissatisfied with sentences imposed by the courts. Despite this, many were strongly supportive of the use of alternatives to imprisonment for a range of offences. These nuanced views raise questions regarding the efficacy of gauging public opinion using opinion poll style questions; indeed the expected outcome from this first phase of the four phase sentencing and public confidence project. The following phases of this project, reported on elsewhere, examined the effects of various interventions on the robustness and nature of these views initially expressed in a standard ‘top of the head’ opinion poll.

Educational accountability tests, social and legal inclusion approaches to discrimination for students with disability : a national case study from Australia

The UN Convention on the Rights of Persons with Disability (CRPD) promotes equal and full participation by children in education. Equity of educational access for all students, including students with disability, free from discrimination, is the first stated national goal of Australian education (MCEETYA 2008). Australian federal disability discrimination law, the Disability Discrimination Act 1992 (DDA), follows the Convention, with the federal Disability Standards for Education 2005 (DSE) enacting specific requirements for education. This article discusses equity of processes for inclusion of students with disability in Australian educational accountability testing, including international tests in which many countries participate. The conclusion drawn is that equitable inclusion of students with disability in current Australian educational accountability testing in not occurring from a social perspective and is not in principle compliant with law. However, given the reluctance of courts to intervene in education matters and the uncertainty of an outcome in any court consideration, the discussion shows that equitable inclusion in accountability systems is available through policy change rather than expensive, and possibly unsuccessful, legal challenges.

Bail and remand for young people in Australia : a national research project

Funded and endorsed by the Australasian Juvenile Justice Administrators, this is one of the first national scale research reports into the bail and remand practices for young Australians. A young person can be placed in custody on remand (ie refused bail) after being arrested by police in relation to a suspected criminal offence, before entering a plea, while awaiting trial, during trial or awaiting sentence. Although custodial remand plays an important role in Western criminal justice systems, minimising the unnecessary use of remand is important given the obligations Australia has under several UN instruments to use, as a last resort, youth detention of any kind. This research identifies trends in the use of custodial remand and explores the factors that influence its use for young people nationally and in each of Australia’s jurisdictions.

The pragmatic approach : the myriad gene patents before the Australian courts

The Full Court of the Federal Court of Australia in D'Arcy v Myriad Genetics [2014] FCAFC 115 recently upheld the validity of Myriad Genetics' Australian BRCA1 gene patent over isolated DNA sequences.