Hiding in the Hulls: Attacking the Practice of High Seas Murder of Stowaways through Expanded Criminal Jurisdiction[dagger]

I. Introduction The increased transnational commerce and mobility of recent years have introduced new challenges-both practical and legal-to the shipping industry. Although international organizations, corporations, and governments have attempted to solve many of these problems through conventions, internal regulation of corporate behavior, and bilateral or multilateral governmental agreements, many of the most crucial areas are left untouched. Like the sea itself, vast amounts of territory remain uncharted and unreachable. High seas criminal activity, and in particular the mistreatment and killing of stowaways, figures within this area. The most egregious illustration of the law's inability to effectively combat high seas crime, perhaps, is an incident that resulted in the deaths of four Romanian stowaways.1 In March 1996, several Filipino crew members on the Maersk Dubai witnessed the murder of two stowaways.2 Two months later, the crew saw the violence repeated, at a level more brutal than the first.3 Anxious to stop the killings and return to the predictable life aboard a cargo ship, four witnesses denounced the murders and presented enough evidence to Canadian officials to detain seven of the ship's officers allegedly responsible for the violence.4 Despite Canada's advantageous position to swiftly render justice-having custody of the suspects, access to witnesses and evidence, and a strong, independent judiciary-the fact that the crime scene was miles off shore frustrated the possibility of trial in Canadian court.5 Pursuant to the United Nations Convention on the Law of the Sea (UNCLOS), a ship is subject to the exclusive jurisdiction of the nation's flag under which it sails,6 which in the Dubai's case was Taiwan. Additionally, Canada could not properly claim the power to prosecute under the traditional bases of jurisdiction.7 A judge on the Nova Scotia Supreme Court derailed Romania's efforts to extradite the suspects,8 and as a result, Canada released the suspects to return home to Taiwan.9 Three years after the first murders occurred, Taiwan indicted the ship's captain on counts of negligence and dropped all charges against the remaining officers.10 As of this writing, no individual had yet been held responsible for the crimes. Far from being settled, the Dubai case lingers as an international injustice and raises innumerable questions as to the strength and scope of the rule of law on the high seas. Canada's hands were tied at a defining moment in the development of the case. Should the scene be repeated, it is doubtful that proceedings would get so far as an extradition hearing.11 Canada was unable to protect the interest of the victims, witnesses, or society at large. Further, the Dubai incident is not unique.12 Indeed, high seas crime has figured significantly in discussions of the United Nations International Maritime Organization.13 Although prosecutions have been successful in select cases,14 a nation's ability to obtain jurisdiction is far from secure and often depends on creative application of relevant legal principles or fortuitous fact scenarios. An expanded notion of jurisdiction would allow for consistency in the handling of high seas crimes and would assist enforcement and deterrence efforts. This Note advocates increased protection against crimes committed on the high seas, particularly murder and physical assault of stowaways. It focuses primarily on the incidents aboard the Maersk Dubai because the case offers a strong and compelling fact pattern from which to explore some of the more interesting and complicated legal constraints surrounding domestic prosecution of high seas crimes. Part II gives an introduction to the facts of the Dubai murders and provides a deeper understanding of the legal context within which Canada was operating. Part III evaluates current attempts to gain jurisdiction over high seas crimes. Part IV presents a basic definition of universal jurisdiction and explores its possible application to incidents like the Dubai murders. …

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