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Some Legal Aspects of Pirate Broadcasting in the North Sea
Published online by Cambridge University Press: 21 May 2009
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The phenomenon of a pirate radio station operating from a ship strategically anchored on the high seas is graphic testimony to man's irrepressible ingenuity as well as to the truism that a legal norm can never anticipate every possible contingency.
The circumstances are remarkable in that in order to evade the prohibitions of a municipal legal system, individuals have sought shelter under the protective umbrella of international law, confident that the states concerned, particularly the United Kingdom and the Netherlands, would acknowledge the inviolability of their activities.
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References
1. Inter alia, prohibitions against unlicensed broadcasting, sponsored programmes, and the use of material which infringes copyright. Violation of international law is also involved, for example, the use of, and interference with, wavelength frequencies already allocated under international agreement.
2. As opposed to the Scandinavian states, who acted promptly against pirate stations operating in the Baltic: see Hunnings. Pirate Broadcasting in European Waters (1965) 14 I.C.L.Q,. p. 410, 417–20.Google Scholar
3. The European Agreement for the Prevention of Broadcasts Transmitted from Stations outside National Territories, drawn up by the Council of Europe and opened for signature on January 20th, 1965 in Strasbourg. Cmnd. 2616. It is examined below, p. 17.
4. This is a strong possibility in view of the acute lack of Parliamentary time experienced by the present government.
5. House of Lords Debates. Vol. 258 C. 1378.Google Scholar
6. For a closely documented presentation of the problem, see Hunnings, , op. cit.Google Scholar
7. The following references can be found in Hansard:
House of Commons Debates: (1961) Vol. 637. c. 19: 135 (1964). Vols. 688.Google Scholar
c. 167: v. 692. c. 784: v. 693. c. 105: 225: v. 694. c. 143: v. 695. c. 36: 90: 128: 142: 182: 894: v. 696. c. 50: 116: 200: v. 697. c. 184: v. 698. c. 209: 288: v. 699. c. 49. House of Lords Debates: (1964) Vol. 258. c. 419: 1363: v. 259 c. 1086.
The following references appeared in The Times: (1961)Google Scholar. Feb. 15th: 18th: (1964) April 2nd: 4th: 8th: May 14th: November 11th: See also, The Sunday Times, 04 12th, 1964Google Scholar: The Observer, 29th 03, 1964Google Scholar: 17th January, 1965.
8. For example, the manipulation of such devices as incorporation and flagregistration.
9. See Art. 38. Statute of the International Court of Justice: Schwarzenberger, : International Law, as applied by International Courts and Tribunals, Vol. 1. p. 31, 36–7.Google Scholar
10. See the fascinating account of how pressure groups operate in a parliamentary democracy by ProfessorWilson, H. H.: Pressure Group: the campaign for commercial television. (1961).Google Scholar
11. Radio Caroline claims an audience of 12 million: Radio Veronica, 5 million. Profits from advertising revenue are high: see Thomas, , Competition in Radio, 1965Google Scholar, a pamphlet put out by the Institute of Economic Affairs.
12. Consideration of pirate radio or television stations operating from fixed structures on the high seas is excluded: see. ProfessorFrançois, J. P. A.: L'Ile de la R.E.M., this Review, 1965 p. 113.Google Scholar
13. Indeed the I.T.U. has been no more successful in regulating the aspects of (1) content of programmes, cf. The International Convention on the Use of Broadcasting in time of Peace. 1936. Hudson, . International Legislation, vii. p. 409Google Scholar. (2) passage of radio waves through foreign territory. Here, state sovereignty is the natural springboard, with the result that no state is obliged to admit the passage of such waves under international law. This proposition is strengthened analogously by the reference in the section of the Chicago Convention on International Civil Aviation, 1944, concerned with air navigation, to “the complete and exclusive sovereignty over the airspace” above the territory of “every state” (Art. I). Oppenheim contends that the tempering but nebulous conception of abuse of rights might be applicable to both situations, above. Vol. I. p. 462, 530.
14. The I.T.U. is a specialised agency of the United Nations, enjoying a near universal membership. Its present constitution is enshrined in the International Telecommunication Convention signed at Geneva in 1959, which came into force on Jan. 1st, 1961. An accessible text of the Constitution and Regulations of the Union can be found in Peaslee, , International Governmental Organisations, Constitutional Documents (Revised 2nd Ed.) volume 2. p. 1397et seq.Google Scholar
14. It is also provided that Regulations, supplementing the Convention, shall have the same force and duration as the Convention itself, and shall be binding on all member states (Art. 14). Art. 44 permits members to convene regional conferences, conclude regional agreements and create regional organisations. A European Broadcasting Union was set up in 1933.
15. Two of the Union's main purposes are set out in Art. 4: first, the allocation of the radio frequency spectrum and registration of radio frequency assignments in order to avoid harmful interference between radio stations of different countries. Second, the promotion of measures for ensuring the safety of life. The former function is entrusted to an organ of the Union, the International Frequency Registration Board. (Art. 12) Frequencies in Europe were allocated by the E.B.U. in 1948, under the so-called Copenhagen plan. It should be noted that Radio Luxembourg, the apotheosis of commercial broadcasting, is quite respectable and operates by virtue of its allocated frequency under the 1948 Plan, (although apparently using power in excess of that specified in the agreement).
16. Of course, only a small part of the Convention is directly concerned with radio communication; we are not interested in telegraphy, telephony, or radio-astronomy. Broadcasting service is defined as “a radio communication service in which the transmissions are intended for direct reception by the general public.”
17. An important provision is Art. 21: any telecommunication stations established or operated by members, or by private operating agencies authorised by such members, and engaged in international services or which are capable of causing harmful interference to the radio services of other states, must observe any Regulations annexed to the Convention. By the Geneva Radio Regulations 1959, members must ensure that all radio stations under their jurisdiction “are operated in such a manner as not to result in harmful interference to the radio services or communications of other I.T.U. members … which operate in accordance with the provisions of the Radio Regulations. (Art. 47 (1)) Further, no transmitting station may be installed or operated by a private person or by any enterprise, without a licence issued by the government of the country to which the station in question is subject. (Reg. 725). The United Kingdom Wireless and Telegraphy Act 1949, closely follows this pattern of national control.
18. Thus the United Kingdom legislation, supra, is limited in its area of application to the United Kingdom and its territorial sea. However, s. 6. expressly extends the provisions of the Act to any British sea-going ship, registered in the United Kingdom, wherever it might be—a form of quasi-territorial sovereignty.
19. The history of these and subsequent stations is admirably traced by Lord Aberdare in Debates, H. L.. Vol. 258. c. 1363–82Google Scholar. In fact the idea of a floating radio station was envisaged nearly 20 years ago: Wilson, op. cit. p. 136, who cites a newspaper report of June 2nd, 1946 to the effect that an American company was proposing to beam commercial radio broadcasts to the U.K. from 3 Danish owned ships.
20. Regulation 422.
21. Recommendation No. 16.
22. See the information circulated by the Secretary-General of the I.T.U. naming those states who had adopted such measures; they are set out in Hansard Vol. 695. c. 128–130.
23. Belgium, France and Czechoslovakia. The argument that the U.K. is thereby internationally responsible for the acts of private individuals, on the grounds for instance, that it has failed to exercise due diligence in preventing its nationals from provisioning and supplying the pirate vessels, would fail in limine; see. Mcnair, . Law of Treaties (1961) 2nd Ed. p. 550.Google Scholar
24. For details, see Hansard H. C; Debates No. 651, c. 34–5.
25. Geneva Convention on the High Seas, 1958. Art. 2.Google Scholar
26. Boczek, . Flags of Convenience. An International Legal Study, 1962. pp. 92–3.Google Scholar
27. Mcdougal, and Burke, . The Public Order of the Oceans, 1962. p. 1085.Google Scholar
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30. See especially, Arts. 5, 10, and 12.
31. Oppenheim, , op. cit. pp. 595–6.Google Scholar
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33. Mcdougal, and Burke, , op. cit. p. 1081.Google Scholar
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35. (1948) A.C. 351. This was an appeal from the Supreme Court of Palestine, which had dismissed an appeal from the decision of the trialjudge.
36. op. cit. p. 368.Google Scholar
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38. ibid.
39. cf. Green, . The Geneva Conventions and the Law of the Sea, 12 Current Legal Problems (1959) p. 224, at p. 236.Google Scholar
40. Preamble.
41. Art. 6 (2). A ship sailing under the flags of more than one state, using them according to convenience, may be assimilated to a ship without nationality.
42. Arts. 22 (1), 23, and 19 respectively.
43. The Virginius Incident, (1873). 2 Moore: 967Google Scholar; The Mary Lowell. 1879Google Scholar, Moore 3 Int. Arb. 2972. These cases now have to be seen in the context of the limitations on the use efforce under the U.N. Charter. For discussion of seizures within the Contiguous zone, see infra, p. 375.
44. The Marianna Flora (1826) 24 U.S. (11 Wheat.)Google ScholarSmith, I.. The Law and Custom of the Sea, 1959. 3rd Ed. p. 64.Google Scholar
45. The right is closely circumscribed so as to prevent abuse: Art. 22 (2), (3).
46. See the commentary to the Report of the International Law Commission, 1956, p. 29Google Scholar. Even a pirate vessel retains its nationality unless forfeited under the municipal law of the flag-state. (Art. 8). Contra, Oppenheim, , op. cit. p. 616.Google Scholar
47. The text of Art. 22 (1). (c) reads: though flying a foreign flag or refusing to show its flag, the ship is, in reality, of the same nationality as the warship.
48. The Muscat Dhows Case (1905)Google ScholarScott, I., Hague Court Reports, 93, 96.Google Scholar
49. This is evidenced by a long-established practice among maritime states: U.N.L.S. Nationality of Ships (1955). Supplement (1959). This is not the place to discuss the so-called “genuine link” theory, extrapolated from The Nottebohn Case (1955) I.C.J. Reports p. 4Google Scholar., and abstrusely incorporated into Art. 5 of the High Seas Convention. For searching analysis and criticism, see Mcdougal, and Burke, op. cit. Ch. 8.Google Scholar
50. Schwarzenberger, , op. cit. p. 415.Google Scholar
51. The classic reference work is Temperley, 's Merchant Shipping Acts, 6th Ed. (1963).Google Scholar
52. S. 76. See The Polzeath (1916) p. 241 (C.A.).Google Scholar
53. S. 2 (1), (2).
54. Giles, and Chorley, . Shipping Law (5th Ed.) p. 8.Google Scholar
55. After Panama had withdrawn registration from the pirate station ship Caroline, a Ministry of Transport official is reported to have said that this action did not affect the position. The ship was not a British ship and there was no sanction which could be brought against her for not being registered. The Times, April 8th, 1964.
56. S72. This refers, inter alia, to concealment of British or assumption of foreign character (S70); provisions as to masters and seamen (S266). For these purposes a ship owned by British subjects but registered in a foreign country, is regarded as a British ship: Chartered Mercantile Bank of India v. Netherlands India Steam Navigation Co. (1883) L.R 10 Q.B.D. 521 at pp. 535–6.Google Scholar
57. Giles, and Chorley, . op. cit. p. 9.Google Scholar
58. cf. Van Zwanenberg, . Interference with ships on the high seas. 10. I.C.L. (1961) p. 785, at p. 786Google Scholar. Semble, such a seizure would fall within the terms Art. 22 (1) (c) supra.
59. Every one of the pirate radio ships, though outside the territorial sea, is within the contiguous zone.
60. For a scholarly account of its development in English and American law, see. Masterson, . Jurisdiction in Marginal Seas (1929).Google Scholar
61. See the classic judgment of SirScott, William in The Le Louis (1817) 2 Dods. 210, 246Google Scholar. The case concerned the right of an English cutter to capture on the high seas in time of peace, a French vessel carrying on the slave trade.
62. Marshall, C. J. in Church v. Hubbart 6. U.S. (2 Cranch) 187Google Scholar. Here, the Supreme Court upheld for the purposes of an insurance policy, the right of Portugal to enforce a trading monopoly with its colony of Brazil against an American ship on the high seas, whilst hovering about 5 miles off the Brazilian coast.
63. For a contemporary analysis of these policies see, Mcdougal, and Burke, op. cit. Ch.6.Google Scholar
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65. see, U.N.L.S. High Seas, op. cit.
66. Art. 24 (1). In a zone of the high seas contiguous to its territorial sea, the coastal state may exercise the control necessary to:
(a) prevent infringement of its customs, fiscal, immigration or sanitary regulations within its territory or territorial sea.
(b) punish infringement of the above regulations committed within its territory or territorial sea.
(2). The contiguous zone may not extend beyond 12 miles from the baseline from which the breadth of the territorial sea is measured.
67. Oda. The concept of the contiguous zone, 11 I.C.L.Q, (1962), p. 131. Mcdougal, and Burke, , op. cit. p. 620.Google Scholar
68. Mcdougal, and Burke, , op. cit. Ch. 6Google Scholar. The interests are listed under the headings of security, power, wealth, well-being and rectitude.
69. Indeed, surprise has been expressed that direct preventive action has not been taken against floating pirate radio stations. Mcdougal, and Burke, , op. cit. p. 595.Google Scholar
70. Even though registration was fraudulently obtained. The Mary Lowell, op. cit.
71. See The I'm Alone (1933–1935) 3 R.I.A.A. 1609Google Scholar. (British ship, registered in Canada, but defacto owned, controlled and managed by U.S. citizens, unlawfully sunk by U.S. patrol vessel).
72. The Maty Lowell, op. cit.
73. Morgenstern. Judicial practice and the supremacy of international law. 27 B.Y.B.I.L. (1950) p. 42.
74. This distinction in meaning has been aptly described as jurisfaction and jurisaction respectively. Cheng. 12 Current Legal Problems (1959) pp. 181–186.Google Scholar
75. The Lotus case (1927) P.C.I.J. A. 10Google Scholar. That is, a state may extend the application of its laws to persons or property outside its territory, subject only to the requirement that its own interests require protection. This is the so-called protective principle.
76. This proposition is illustrated by cases involving the apprehension of persons, (often alleged fugitives from justice) on the territory of one state by agents of another state. Such action is violative of state sovereignty. The breach of international law resulting from the abduction of Adolf Eichmann from Argentina by Israeli agents was subsequently waived by agreement between the two states concerned.
77. (1876) 2 Ex. D. 63.
78. The decision was reversed by the Territorial Waters Jurisdiction Act 1878.
79. Per Cockburn, C. J. in R v. Keyn, op. cit. at p. 208.Google Scholar
80. See R v. Martin (1956) 2 All.E.R. 86Google Scholar cf. R v. Naylor (1961) a All.E.R. 932.Google Scholar
81. i.e. in the sense of extra-territorial legislative competence.
82. i.e. contrary to jurisdiction in its sense of the actual administration or enforcement of law.
83. Naim Malvan v. The Attorney General for Palestine, op. cit. cf. R v. Garrett (1917) 81 L.J. (K.B.) 894Google Scholar. It will be remembered that Eichmann raised the plea that the Israeli court had no jurisdiction by reason of the unlawful manner in which his presence before it was secured. The Court rejected this plea, relying on a series of Anglo-American decisions, mostly concerned with the arrest of fugitive criminals. But it has been pointed out that in none of the British decisions had there been a violation of international law, as opposed to a breach of some foreign municipal law. O'Higgins. Unlawful seizure and irregular extradition. 36 B.Y.B.I.L. (1960) p. 280 et seq.
84. Morgenstern. Jurisdiction in seizures effected in violation of international law. 29 B.Y.B.I.L. (1952) p. 265, especially at pp. 277–81. American courts have drawn a distinction between seizures in violation of treaty, where jurisdiction will be refused, and seizures in violation of international customary law, where jurisdiction will be taken. Dickinson, 28. A.J.I.L. (1934) p. 231Google Scholar: Harvard, Research. 29 A.J.I.L. (1935) Suppl. p. 622.Google Scholar
85. The writer's view is that such action is not contrary to international law (supra).
86. Generally, it is immaterial in civil proceedings involving delictual, contractual or proprietary rights, that the cause of action arose outside the jurisdiction or that the defendant is an alien. Jurisdiction is invariably dependent on the presence of the defendant within the jurisdiction, see Dicey, 's Conflict of Laws, 7th Ed.Google Scholar, Rule 25. However, a British subject (or an alien) who commits a criminal offence outside the jurisdiction, cannot be tried under English law in the absence of a statutory provision to the contrary, 10 Halsbury's Laws. (3rd Ed.) p. 324Google Scholaret seq. See also, Hanbury. The territorial limits of criminal jurisdiction. Grotius Society, Vol. 37. (1952) p. 171Google Scholar; Williams, . Venue and ambit in criminal law. 81 L.Q.R. p. 276.Google Scholar
87. Supra p. 2. As opposed to proceedings against the vessel itself; see, The Merchant Shipping Act 1894, S. 2 (3)—detention of British owned but unregistered ship; The wireless and Telegraphy Act 1949, SS. 1, 6,—confiscation of unlicensed wireless apparatus within the United Kingdom and adjacent territorial waters.
88. For example, a prosecution under the Merchandise Marks Act 1887. Here, the so-called objective territorial principle of jurisdiction, which applies to offences commenced outside, but producing harmful effects inside a state's territory, might be suitably invoked. The principle is recognised in several British decisions. See R v. Coombes (1785) 1 Leach 388Google Scholar. R v. Oliphant [1905] 2 K.B. 67Google Scholar. R v. Godfrey [1923] 1 K.B. 24.Google Scholar
89. For example, an action for infringement of performing rights in sound recordings under the Copyright Act 1956. Where, if at all, does the infringement take place? The owner of the copyright must show, in an action for infringement, that a “restricted act”—such as ‘broadcasting the recording’—has been done by the defendant, in relation to the protected work, ‘in the United Kingdom’. (S. 1. (1), (2) and S. 12. (4), (5).). By S. 14 (10), a sound broadcast is deemed to be made from the place from which the sounds are broadcast. Semble, these provisions identify the locus of infringement with the place from which the broadcast emanates and thus the pirate radio stations have not done the restricted act ‘in the United Kingdom.’
90. See Halsbury's Laws (3rd. Ed.) Vol. 7. pp. 279–82Google Scholar; Wade. Act of state in English law—its relations with international law. 15 B.Y.B.I.L. (1934) p. 98; McNair, . International Law Opinions. Vol. 1. pp. 111–17.Google Scholar
91. Buron v. Denman (1848) 2 Ex. 167.Google Scholar
92. Walker v. Baird [1892] A.C. 491Google Scholar; Johnstone v. Pedlar [1921] 2.A.C. 262.Google Scholar
93. For example, mattere relating to the making of peace and war. The leading judicial exposition is that of Fletcher-Moulton, L. J. in Salaman v. Secretary of State for India [1906] 1 K.B. 613 at pp. 639–41.Google Scholar
94. The term is not used in this sense in the United Kingdom. Aliter the United States. For a recent cause celèbre see, Banco Nacional de Cuba v. Sabbatino (1964) 376 U.S. 398.Google Scholar
95. But only if its owners were aliens, supra, note 91.
96. Hereafter referred to as the Agreement. It will enter into force, one month after the date of the third ratification or acceptance.
97. So far the following states have signed. Belgium, Denmark, France, Greece, Luxembourg, Italy, Sweden, and the United Kingdom.
98. Recommendation 422, 29th January 1965.
99. Supra p. 369.
100. Apart from Luxembourg, all the signatories operate a state monopoly free of advertising.
101. See Thompson op. cit. note 11. The difference of opinion between Committee and Assembly is readily explained by their governmental and nongovernmental character respectively.
102. Art. 4 (b) permits a Contracting Party to apply the Agreement to broadcasting stations installed or maintained on objects affixed to or supported by the bed of the sea. The Assembly attached to its resolution, supra, a recommendation that a Protocol or separate Convention should make its application compulsory instead of optional.
103. Art. 1. There is no indication whether the Agreement is employing the definitions contained in the I.T.U. Conventions, but presumably ‘broadcasting stations’ excludes television stations.
104. The United Kingdom representative added a declaration to the effect that references to broadcasting stations in Art. 2 include not merely the broadcasting apparatus but also the ship or other base on which the station is established.
105. Art. 4 (a).
106. The United Kingdom declaration also stated that its legislation would be directed at supplies in bulk, for example, diesel oil, and not at sales of goods which would not be material to the continued operation of the broadcasting station, for instance, the sale of a packet of cigarettes on shore to a crew member of a pirate radio ship.
107. Art. 6.
108. That is, presumably, terra nullius as well as the high seas.
109. Presumably this includes nationals of a Non-Contracting Party.
110. That is, in the sense of extra-territorial legislative competence.
111. See the Lotus case, op. cit. note 75.