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Court Watch

tive security under Security Council authority. The Security Council has “authorized the use of ‘all necessary means’ to prevent piracy, especial- ly in Somalian waters. A nation is justified in us- ing self-defense to rescue or protect its citizens abroad.

UNCLOS provides that the capturing nation has jurisdiction over the pirates. Here, the American flag on the Quest indicates the vessel’s Ameri- can nationality. Shibin and his crew’s attack on the vessel is therefore treated as an attack on the U.S. directly. American law provides that a person who attacks the U.S. directly can be tried and convicted under the jurisdiction of American courts of law.


The United States’ exercise of jurisdiction ap- pears to conflict with other international obliga- tions, such as the Memorandum of Understand- ing (MOU), a bilateral agreement between the United States and Kenya signed on January 16, 2009. The MOU provides universal jurisdiction on Kenyan Courts over non-nationals for hijacking and robbery committed on the high seas, includ- ing in Somalian waters. During trial, Shibin con- tends that the U.S. violated the SUA Convention and the Convention against Hostages because even under U.S. law, it is not settled if universal jurisdiction covers conduct which extends beyond piracy. Shibin also contends that the U.S. violated its SUA Convention and Convention Against Hos- tages obligations by failing to formally extradite him.

The U.S. District Court for the Eastern District of Virginia upheld U.S. jurisdiction over Shibin. The Court concluded that domestic law gave the U.S. courts jurisdiction to try and convict Shibin for crimes extending beyond piracy because the crimes were committed on a U.S. flagged vessel. While on the vessel, Shibin’s crimes would be seen as being committed in the U.S., against U.S. citizens, on a vessel where U.S. law applies.

The court also concluded that the SUA Conven-

tion does not mandate extradition as the only means of lawfully turning Shibin over to the U.S., and further, the Convention Against Hostages does not say that extradition must precede pros- ecution. There remains, however, a concern of human rights and due process violations in rela- tion to prejudice against foreign defendants.

*Submitted by Tia Haywood

India Supreme Court Disqualifies Convicted Lawmakers

On July 10, 2013, the Supreme Court of India ruled that elected representatives that had been con- victed of offences carrying a jail term of at least two years must vacate their office and cannot run in future elections. Disqualification takes effect from the date of conviction and continues for a period of six years after release. The ruling strikes down Section 8(4) of the Representation of the People Act (RPA), deeming it unconstitutional. This provision previously gave convicted elected representatives three months’ time for appeal and allowed them to remain in office if they had a pending appeal. The appeals process can last for years in India’s slow and backlogged legal sys- tem, and the average criminal case spans about 15 years. The ruling affects elected representa- tives that are convicted in the future but does not affect elected representatives that had appeals pending prior to the Court’s decision.

The ruling represents a major step towards mak- ing Indian politics less corrupt. Indian politics have been plagued by corruption scandals, including those involving mobile phone licenses, coalfields, and the Commonwealth Games in New Delhi. More than 150 Members of Parliament (MPs) in the lower House of Parliament are facing crimi- nal charges. Of those, fifteen MPs face a murder charge. Other charges include rape, kidnapping, and corruption. Approximately 1,460 lawmakers are facing criminal charges.

ILSA Quarterly » volume 22 » issue 1 » October 2013

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