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Taking to Water (2)

Convention on the Continental Shelf

Another international convention with significance for offshore broadcasting was the Convention on the Continental Shelf, agreed at Geneva between April and October 1958. This Convention provided for coastal states to exercise sovereignty over the sea bed adjacent to their coastline for the purpose of exploring and exploiting its natural resources, particularly oil and gas deposits.

In 1964 the Dutch Government became the first (and only) country to invoke the provisions of this Convention specifically for the purpose of outlawing an offshore broadcasting station - Radio Nordzee and TV Noordzee from the REM Island. (Coincidentally in the same year the British Government gave effect to the Convention and introduced the Continental Shelf Act enabling it to exercise exploration  rights in the North Sea for gas and oil deposits, but never used its provisions to outlaw offshore broadcasters.)

Piracy

There is one further aspect of international law relevant to offshore broadcasting and that is the question of piracy. ‘Pirate Radio’ is a title frequently attributed to offshore broadcasters, but for reasons different from those envisaged by the international legislators, nevertheless the issue has become confused over the years.

The offshore stations were originally given this title for two reasons - firstly because they allegedly 'pirated' the airwaves and did not broadcast on a frequency allocated under international agreements. Secondly they allegedly  'pirated' the material they broadcast and generally did not pay copyright or performance fees for the use of such pre-recorded music. In addition for newspaper headline writers the term 'pirate radio' successfully conjured up all the imagery of a group of swashbuckling, dare-devil people openly challenging the 'established' system and, being outside the law of a particular state, apparently remaining immune from prosecution.

This swashbuckling pirate image was at first accepted and even encouraged by the stations - it helped generate interest and  media attention as well as cultivating a somewhat romanticised picture in the minds of listeners. However, once their future became threatened by the introduction of legislation and with allegations (largely unsubstantiated) of interference being caused by the unauthorised use of frequencies then the stations largely backed away from the use of the term 'pirate radio'. Unfortunately the label had stuck and the anarchic behaviour of some people involved in operating offshore stations only served to reinforce the relevance of the title. As various governments introduced or strengthened legislation to ban offshore radio newspaper headline writers had a field day with contrived pirate imagery.

However, away from the world of tabloid headline writers the meaning of real piracy is defined in international law by the Convention on the High Seas and has some very serious and specific offences attaching to it.

The Convention defines piracy as:-

 "(a) any illegal act of violence, detention or depredation committed for private ends (i.e. acts done without authorisation from the government of any state), by the crew or passengers of a private ship (or aircraft) and directed on the high seas against another ship or aircraft or against persons or property on board such ship or aircraft or against a ship, aircraft, persons or property in a place outside the jurisdiction of any state;

 (b) any act of voluntary participation in the operation of a ship or aircraft knowing it to be a pirate ship or aircraft (a ship or aircraft  is considered a pirate if it is intended by the persons in control to be used for any of the acts which constitute piracy);

 (c) any act of inciting or intentionally facilitating an act as described in paragraphs (a) or (b)."

The Convention also permits a state to seize a pirate ship or aircraft and the property on board using warships, military aircraft or other duly authorised vessels on government service.

It can clearly be seen from this that offshore radio broadcasting is not a pirate activity in the true sense of the international declaration - had it been then stations would have been liable to boarding and seizure, even outside territorial waters, by warships of whatever state chose to act and the whole phenomenon of offshore broadcasting would probably have lasted just a few days.

Hot Pursuit and Boarding

' Hot pursuit' of a foreign ship on the high seas may be undertaken only when the authorities of a coastal state have a good reason to believe that the ship has violated the laws of that state. Pursuit must be commenced when the foreign ship, or one of its boats, is within either internal waters, territorial waters or the contiguous zone of the pursuing state. If the foreign ship is in the contiguous zone hot pursuit may only be undertaken if there has been a violation of one of the rights for which the zone was created i.e. customs, fiscal, immigration or sanitary regulations.

A warship which encounters a foreign merchant ship on the high seas is not justified in boarding her, except in one or more of the following circumstances:-   

  (a) with the consent of the state whose flag the ship is flying;

  (b) where there is reasonable ground for suspecting the ship is engaged in piracy or the slave trade, or  

  (c) despite the flag it is flying the ship is in reality of the same nationality as the warship.  

A warship may, however, interfere with a merchant ship which is either not flying a flag at all or is flying one of no recognised state - two very important provisions which were invoked at different times during the history of offshore broadcasting.

Flag States and Flags of Convenience  

A ship may sail in international waters only under the flag of one state and is subject to the exclusive jurisdiction of that state. This is the reason why almost all shipborne offshore radio stations flew the flag of a country which was nowhere near the area they were broadcasting to or from and they generally found a flag state whose rules of inspection were not as rigidly enforced as those of other nations.

These so called Flag States (for example Panama, Honduras or Liberia) operated such lax rules in order to attract to their register as many ships as possible and consequently secure large incomes from the registration fees payable by ship owners. Offshore broadcasters generally had to ensure that their transmitting equipment was located in the hold of their ships so that, particularly in the case of Panama, they could be legally classed as cargo and not broadcasting  equipment.

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