Right Of Visit Research Articles

TRATAMENTO DE PRESAS NO PRESÍDIO FEMININO DE TUBARÃO – SC: ATENDIMENTO ÀS REGRAS DE BANGKOK, À LEI DE EXECUÇÃO PENAL E AO RELATÓRIO 2015 DO MECANISMO NACIONAL DE PREVENÇÃO E COMBATE À TORTURA

A pesquisa avalia se o Presídio Feminino de Tubarão - SC atende aos parâmetros internacionais de tratamento de presas definidos nas Regras de Bangkok (ONU), aos padrões da Lei de Execução Penal (LEP) e aos pontos negativos do Relatório de 2015 do Mecanismo Nacional de Prevenção e Combate à Tortura (MNPCT), da Secretaria de Direitos Humanos da Presidência da República. Trata-se de estudo de caso, cuja pesquisa, de nível exploratório, teve abordagem pelo método quantitativo e método de procedimento comparativo. O estudo foi realizado no Presídio mencionado, com 50 presas (condenadas e provisórias) e 19 funcionários. Os resultados indicam que a maioria das regras é atendida pelo Presídio. Houve evolução no atendimento dessas regras desde o Relatório do MNPCT, especialmente nas questões referentes à estrutura física e ao tratamento das presas. Esse atendimento aos padrões não é completo, pois das Regras de Bangkok não são cumpridas aquelas que se referem à exposição à mídia, à consulta da presa sobre as visitas, ao direito de visita íntima e à estrutura de berçário para acompanhamento dos primeiros meses de vida de filhos; da LEP, as relativas ao acesso ao ensino e ao trabalho; e do Relatório do MNPCT, as referentes ao cheiro forte nas celas e a ausência de camas para todas as presas. Conclui-se que a percepção de presas e funcionários do Presídio Feminino de Tubarão apresenta poucos pontos de desrespeito às Regras de Bangkok e à LEP, bem como indica evolução quanto aos pontos negativos apontados no Relatório MNPCT/2015.

TERRORIST THREAT ON THE HIGH SEAS ANALYSIS OF SOME ASPECTS OF THE RIGHT OF VISIT AND SELF-DEFENCE

Vessels of all sizes can be used in a number of ways by terrorists, they can utilize a vessel as a means, a weapon, a bomb, or as a disruption tool. When a terrorist attack happens, it is already too late, hence the critical importance for the international community to take timely, accurate and efficientex ante factosteps.Counter-terrorism measures implemented on the high seas to prevent maritime terrorist attacks from occurring are possible but limited by the international law and notably the law of the sea. To some extent, the law of the sea limits counter-terrorism efforts. On the high seas, enforcement measures against terrorists or terrorist-related activities on board foreign vessels are restricted by the principle of exclusivity of flag State jurisdiction (a). Nevertheless, the application of the principle can be derogated from by the right of visit which provides for, under certain conditions, some leeway to States in their fight against maritime terrorism (b). it is difficult to justify interdiction operations carried out in order to counter terrorist threats on the high seas by the right of self-defence. The first reason relates to the differences in rationale and legal regime between the force deployed during interdiction operations and the one used in self-defence (a); the second reason concerns the existence or not of a right of anticipatory self-defence (b).

Authorizations for maritime law enforcement operations

AbstractAlthough there are areas of uncertainty and overlap, authorizations for maritime law enforcement operations are beholden to a different regime from that which governs the conduct of armed conflict at sea. This article seeks to briefly describe five regularly employed authorizations for maritime law enforcement operations at sea: flag State consent, agreed pre-authorization, coastal State jurisdiction, UN Security Council resolutions, and the right of visit.

The Slave Trade and the Right of Visit Under the Law of the Sea Convention: Exploitation in the Fishing Industry in New Zealand and Thailand

AbstractSevere exploitation of vulnerable persons is occurring in fishing industries globally. An overview of exploitation in New Zealand and Thailand highlights the incentive for states to downplay exploitation and underpins the appeal of a right of visit, which is provided for under the Law of the Sea Convention in regards to the slave trade. Although reported as forced labour, debt bondage, or human trafficking, an examination of international jurisprudence reveals that current practices likely amount to slavery; primarily due to the inherent vulnerability of persons at sea. Two persuasive cases, Kunarac and Tang, provide guidance on interpreting the definition of slavery, particularly “the powers attaching to the rights of ownership”. The operation of a right of visit is considered against the law of the sea regime, as are the implications in the light of international attempts to control IUU fishing.

Flag Verification on the High Seas: Understanding Requirements for Masters and Commanders

Operational reporting from the Middle East indicates that the exercise by warships of a right of visit on the high seas, in order to verify the flag of the boarded vessel, is an important part of contemporary maritime enforcement operations. However, this reliance on ‘flag verification boardings,’ pursuant to Article 110 of the United Nations Convention on the Law of the Sea 1982, challenges the proper balance of law enforcement authority against the traditional freedom of navigation. It is therefore necessary to establish clearly for both civilian masters and warship commanders where the evidentiary threshold for reasonable doubt as to the nationality of vessels lies, so as to justify non-consensual visit and search by a foreign warship. This article makes an objective, evidence-based assessment of the threshold, concluding with a caution against over-stretching the right of visit to accommodate law enforcement purposes not envisaged in the drafting of Article 110.

Efthymios Papastavridis. The Interception of Vessels on the High Seas, Contemporary Challenges to the Legal Order of the Oceans

Many are the threats that challenge the security of the oceans today. Piracy, which was thought to be relegated to history and adventure books (and films), has re-appeared and threatens human lives but also, cynically more importantly for states, the safe transport of goods. The seas provide the main route for trade in goods worldwide. Their security is an imperative for a globalized economy. In the 2008 Report on Oceans and the Law of the Sea, the UN Secretary General identified seven specific threats to maritime security: (1) piracy and armed robbery; (2) terrorist acts against shipping, offshore installations, and other maritime interests; (3) illicit trafficking in arms and weapons of mass destruction (WMD); (4) illicit trafficking in narcotic drugs and psychotropic substances; (5) smuggling and trafficking of persons at sea; (6) illegal, unreported, and unregulated (IUU) fishing; and (7) international and unlawful damage to the marine environment. The law of the sea, and in particular the 1982 Law of the Sea Convention (UNCLOS),2 does not specifically deal with maritime security. It nevertheless provides for some instruments in order to manage and counter those threats on the high seas and to limit the otherwise guaranteed freedom of navigation. In particular the right of visit (Article 110 UNCLOS)3 is the core legal basis for any enforcement activity performed, unilaterally or multilaterally, on the high seas. The right to visit is the legal basis for any interception of vessels on the high seas or interdiction programme. It consists of an exception to the exclusive jurisdiction of the flag state on the high seas (Article 92 UNCLOS) and the related principle of non-interference. The analytical study of interceptions of vessels on the high seas, performed for preventing or repressing the above-mentioned threats, is the object of the book under review

Israel’s Seizure of the Gaza-Bound Flotilla: Applicable Laws and Legality

The present working paper analyzes the applicable laws and legality of Israel’s naval blockade on Gaza and of the enforcement of that blockade through the seizure of a number of vessels, notably the Mavi Marmara, on May 31, 2010. It includes a comparison between that analysis and the analysis of the just-released (September 27, 2010) Report of the international fact-finding mission to investigate violations of international law, including international humanitarian and human rights law, resulting from the Israeli attacks on the flotilla of ships carrying humanitarian assistance. This three-member mission was chaired by Judge Karl T. Hudson-Phillips, Q.C., retired Judge of the International Criminal Court and former Attorney General of Trinidad and Tobago. Its mission was established by the UN Human Rights Council in resolution 14/1 of 2 June 2010. Suggestions are made about questions of law to which two remaining panels or commissions of inquiry may wish to give special attention. One such question is whether or not a belligerent right of visit of vessels for purposes of arms interdiction requires a naval blockade first to be in place. A second question meriting further attention is how to think about the interaction of personal rights of self-defence of both the passengers aboard the ships and the soldiers ordered to seize the ships, in terms of the analysis of the necessity and proportionality of specific actions taken by Israeli soldiers. A third question is whether, without addressing the matter in any detail, the Hudson-Phillips report unhelpfully blurred the jus in bello right of visit within the laws of war and the jus ad bellum right of states to self-defence. The first of these two other commissions is the four-member Panel of Inquiry established by UN Secretary-General Ban Ki-moon, with the support of the UN Security Council; that panel is chaired by the former Prime Minister of New Zealand, Geoffrey Palmer, and vice-chaired by the former President of Colombia, Alvaro Uribe, and also includes panel members from Israel and Turkey. The second is Israel’s own “Public Commission to Examine the Maritime Incident of 31 May 2010” chaired by retired Israeli Supreme Court justice, Judge Jacob Terkul, and including as non-voting observers Northern Ireland’s former First Minister, Lord William David Trimble, and a former Judge Advocate General for Canada, Brigadier General (retired) Ken Watkin.

The Right of Visit on the High Seas in a Theoretical Perspective: Mare Liberum versus Mare Clausum Revisited

AbstractThe present article discusses the historical and theoretical parameters of the right of visit on the high seas. This right is considered the most significant exception to the fundamental principle of the freedom of the high seas, which is conceptualized mainly as of a negative nature, namely as ‘the prohibition of interference in peacetime by ships flying one national flag with ships flying the flag of other nationalities’. This prohibition is arguably challenged by the recent extensive practice of interdiction of vessels on the high seas to counter threats such as international terrorism and transnational organized crime at sea. Accordingly, the historical claims to the freedom of the seas and the celebrated controversy between mare liberum and mare clausum are canvassed. Drawing valuable insights from this historical survey, it is possible to revisit this controversy and ascertain the role of interference on the high seas in the legal order of the oceans of the twenty-first century. It is posited that the rationales behind the contemporary right of visit reflect the old-fashioned mare clausum arguments and that they fall under three general categories, namely the maintenance of international peace and security, the protection of the bon usage of the oceans, and the maintenance of welfare and ordre public of the states and of international society.

Les visites pastorales dans le diocèse de Cambrai

L. Trénard, Pastoral visits in the Cambrai Diocese. Reports of pastoral visits stored in the departmental or municipal diocesan records are submitted to a thorough inventory leading to a coded repertory of the key-notions they contain. For the pre- and post-concordat periods, paper slips, some descriptive, others coded, are established and permit the exploitation of all information bearing on the conditions of the visits, the geographical and human milieu, the parish churches, the ecclesiastical personnel, the religious communities, the cult, teaching and relief, the parishioners, the dissenters, the non-catholics. Such an initiative is an incentive to original research and proves fruitful. The Cambrai diocese immediately followed all the prescriptions of the Council of Trent dealing with the frequency, the clauses and the content of the questionnaire. Thus, purity of the doctrine and of its teaching, regularity in the partaking of Sacraments, preservation of morals were the object of a special care. These visits sometimes raise difficulties : the right of visit is disputed to the bishop in the royal chapters, the Cambrai chapter tries to keep its privileges. The day following the visit, an order is issued to remedy the noted failures. Thus the questionnaire preparatory tothevisit, the reports of the visits and the orders add up to form a body of documents of the highest interest as regards history. The Cambrai region, owing to its international situation, often was the site of diplomatic meetings. After the "paix des Dames", it is the treaty of Câteau-Cambrésis which was diversely interpreted, but which corresponds to a stage in the relations between crowns and religions.

The British Right of Search and the African Slave Trade

r rHE 11istoric controversy between Great Britain and tlle United States over visit and search in connection with the , African slave trade has been said to have come to an end lefinitisely in 1858. American historians have agreed in giving credit to Bucllanan and his secretary of state, Lewis Cass, for compelling, or at least inducing Great Britain to relinquish her claim.1 The English llistorianS Professor A. P. Newton, also accepts this date, though averring that the controversy was concluded because the British government was itself convinced, as the result of an inquiry of its own, tllat visit and search had no basis of legality.2 Nevertheless, the diplotnatic correspondence reveals that the controversy was far from being terminated in 1858. While it never again became a matter of public discussion, it continued to be a live issue between the two goarernments until the end of the Buchanan administration. TIle American Civil War put an end to it forever. Food for controversy was supplied by the British attempt to (llaw a distinction between a right of search and a right of visit to verify, by inspection of papersS the nationality of a vessel. Maintenance of this distinction seemed to the British government essential to tlle success of its antislave trade crusade in view of the well-known abuse by slaving vessels of national flags. The abuse of the American flag was particularly extensive because tlle United States alone among the great maritime states had steadfastly refused to negotiate a mutual right of search treaty.3