by CopperLine » Sat Jan 26, 2008 11:22 pm
Let's take a different example to illustrate.
A ship 'Spirit of Piratis', registered in the Bahamas but owned by a Swiss company, regularly carries a cargo of urea (owned by a French company) from Basra (Iraq) to Malta. The 'Spirit of Piratis' is a single hulled vessel, and the urea is in crystalline form. Following a number of accidents involving single hulled vessels, the government of Malta passes a law which prohibits such vessels entering any port in Malta. The government of Iraq is not bothered about single hulled vessels using its ports. The government of Bahamas also does not allow single hulled vessels in its ports, but it is only interested in the registration market for single hulled vessels. Switzerland is landlocked (yes you heard it here first) and has no law at all on single hulled vessels. Each of those states is exercising its sovereign right to enact and implement municipal law, in this case about the lawful use of ports.
Following Malta's change of law, the 'Spirit of Piratis' continues to ply its trade in urea shipment from Basra but now wants to shift its destination to Cyprus. The government of Cyprus (RoC) allows single hulled vessels to use its ports. But the government of the TRNC prohibits the use of its ports to single hulled vessels.
Can the owners/operators of 'Spirit of Piratis' take action against RoC's prohibiting of use of Famagusta port using international law ? No. Because there isn't any international law dealing with this issue. Can the owners/operators of 'Spirit of Piratis' take action against prohibiting use of Famagusta port using Cyprus national law on ports ? Yes, through the RoC courts (the problem remains of course that the RoC cannot practically enforce the Cyprus court judgement in the TRNC).
Now reverse the example : RoC prohibits single hulled vessels and TRNC allows them use of Cyprus ports. Remember we're dealing with municipal laws about shipping safety (and not customary international law about recognition). So now the 'Spirit of Piratis' is able to ship between Basra and Famagusta. Can the RoC take action against the owners/operators of 'Spirit of Piratis' for using Famagusta port using international maritime law ? Still the answer is no because there isn't any international law dealing with this issue. Can the RoC take action against the owners/operators of 'Spirit of Piratis' for using Famagusta port using Cyprus national law on ports ? Yes, if the owner/operators are within the jurisdiction of RoC. But in the scenario I've just painted - fairly typical in the shipping world - none of the key parties are within RoC jurisdiction.
So the question is what else or what more can RoC do to enforce its own national laws beyond its own jurisdiction ? Again, remember that the 'Spirit of Piratis' has not violated the municipal port laws of Iraq, Malta, Bahamas, etc, just those of RoC. There's no case to be heard in any of these other jurisdictions. We've already established that there is no international law on this matter, so RoC can't go to an international maritime tribunal. So all that is left, as far as I can see, is for RoC to attempt to have a judgment of a Cypriot court be enforced in one or more of the jurisdictions of the major interested parties i.e, Bahamas, Switzerland, etc.
And here we jump to the importance of the Orams Cyprus property case. Can a judgement of a RoC court (relating to a breach of Cyprus municipal law by an action taking place within Cyprus) be enforced in another jurisdiction, in the Orams' case in England & Wales ? And the English court's answer ? No.
Now it might turn out that a French court would say 'yes', or that another English court in a different case might also say 'yes'. I suspect that both of these scenarios are unlikely, though not impossible. But the fact remains that (a) there is no international law or court which covers the use of ports and (b) the enforcement of municipal law in other national jurisdictions, EU notwithstanding, is extremely difficult to do.
Finally in relation to this, ask yourself this question : why are extradition laws still so important ? Because although still very difficult and complex it remains easier to bring an accused from outside your own jurisdiction to within your jurisdiction than it is to take your laws outside into another's jurisdiction.
Last edited by
CopperLine on Sat Jan 26, 2008 11:27 pm, edited 2 times in total.
