COMBATING DRUG TRAFFICKING AT SEA

Introduction

Drug trafficking constitutes a worldwide illegal trade encompassing the cultivation, production, distribution, and sale of substances regulated by drug prohibition laws. The United Nations Office on Drugs and Crime (UNODC) diligently monitors and conducts research on the global illicit drug markets, aiming to achieve a more comprehensive comprehension of their operational dynamics, with drug trafficking being a pivotal focus of this research. Additional insights can be accessed in the annual World Drug Report.

Presently, global heroin consumption stands at 340 tons annually, with seizures indicating an annual inflow of 430-450 tons of heroin into the global market. Among this total, approximately 50 tons originate from opium cultivated in Myanmar and the Lao People’s Democratic Republic, while the remaining 380 tons, consisting of heroin and morphine, are exclusively derived from Afghan opium. Afghanistan itself consumes and seizes roughly 5 tons, leaving the substantial remainder of 375 tons to be trafficked worldwide through routes spanning neighboring countries of Afghanistan.

The primary corridors for heroin trafficking are the Balkan and northern routes, serving as conduits connecting Afghanistan to the extensive markets of the Russian Federation and Western Europe. The Balkan route traverses the Islamic Republic of Iran (often via Pakistan), Turkey, Greece, and Bulgaria, extending across South-East Europe into the Western European market, with an annual market valuation approximating $20 billion. Conversely, the northern route predominantly passes through Tajikistan and Kyrgyzstan (or alternately Uzbekistan or Turkmenistan) en route to Kazakhstan and the Russian Federation, accounting for a market size estimated at $13 billion annually. In 2008, global heroin seizures reached an unprecedented 73.7 metric tons, with the

majority of seizures occurring in the Near and Middle East, South-West Asia (constituting 39 percent of the global total), South-East Europe (24 percent), and Western and Central Europe (10 percent). The surge in global heroin seizures between 2006 and 2008 was primarily fueled by escalating seizures in the Islamic Republic of Iran and Turkey. During 2008, these two nations collectively accounted for over half of the world’s heroin seizures, consistently ranking as the highest and second-highest in global seizures for three consecutive years.

In 2007 and 2008, an estimated 16 to 17 million individuals globally reported using cocaine, a figure akin to the global opiate user count. North America claimed more than 40 percent of global cocaine consumption (with an estimated total of approximately 470 tons), while the 27 European Union countries and four European Free Trade Association nations constituted over a quarter of total consumption. These two regions collectively represent over 80 percent of the global cocaine market’s total value, which was estimated at $88 billion in 2008.

For the North American market, cocaine is typically transported from Colombia to Mexico or Central America by sea and subsequently conveyed by land to the United States and Canada. Cocaine destined for Europe is chiefly trafficked by sea, frequently concealed within container shipments.

Although Colombia remains the primary source of cocaine in Europe, direct shipments from Peru and the Plurinational State of Bolivia are more prevalent in the European market compared to the United States.

In the first part of the current dissertation we analyse the legal framework that deals with the phenomenon of drug trafficking at sea; initiating from the broader spectrum of ius generalis that is The 1982 United Nations Convention on the Law of the Sea, we move towards a specific and targeted framework which is

expressed by the creation and ratification of regional treaties that cover the emerging needs of the states – parties to them.

In the second part, we take all the previous legal analysis, and we test its actual application. More particularly, the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances mandates nations to establish strict regulations for confiscating assets linked to drug trafficking, promoting international collaboration in combating the drug trade. This entails criminalizing various drug-related activities and money laundering associated with drug trafficking.

Flag states play a crucial role in preventing drug trafficking via their vessels, guided by non-binding IMO Resolution MSC.228(82), which emphasizes the need for legislation explicitly criminalizing drug trafficking on flagged vessels. The Law of the Sea Convention (LOSC) articulates conditions for boarding suspicious vessels on the high seas, including piracy, statelessness, and reasonable suspicion. Bilateral agreements with the United States enable many flag states to authorize vessel interceptions when drug trafficking is suspected, outlining procedures, safeguards, and jurisdiction for prosecution. Flag states also hold jurisdiction over crimes committed on their flagged vessels, but challenges arise when some lack robust legal frameworks, potentially enabling unchecked drug trafficking activities.

Illicit activities in maritime areas are growing in complexity, posing risks to human life, regional economies, and global security. Addressing these challenges demands a holistic approach involving coordinated actions at sea and on land to combat unlawful maritime actions and address their underlying reasons. This entails strengthening maritime security, enforcing applicable legal structures, enhancing law enforcement capabilities, and fostering an environment conducive to long-term prosperity.

A

International Legal Framework for the Fight Against Illegal Drug Trafficking at Sea

Chapter 1

The 1982 United Nations Convention on the Law of the Sea (Articles 27, 108)

Articles 27 and 108 of the 1982 United Nations Convention on the Law of the Sea provide a crucial framework for addressing complex matters in the realm of maritime law, ensuring responsible management of maritime affairs, and promoting international cooperation.

Article 27, deals with the criminal jurisdiction exercised on board foreign ships in the territorial sea of a coastal state. It is instrumental in clarifying the rights and responsibilities of coastal states when it comes to prosecuting criminal offenses committed on foreign vessels within their territorial seas. This article allocates the competence to coastal states to assert their jurisdiction and take legal actions against various offenses, such as acts that threaten their peace, good order, or security. It ensures that coastal states have the authority to maintain law and order within their territorial seas while respecting the rights and freedoms of innocent passage guaranteed by UNCLOS. By outlining these competences, Article 27 helps prevent jurisdictional conflicts and fosters cooperative relationships among coastal states and foreign vessel operators.

On the other hand, Article 108, focuses on combating the illicit traffic in narcotic drugs or psychotropic substances through the medium of the high seas. This article emphasizes the need for effective international cooperation and coordination among states to address the global challenge of drug trafficking by sea. It allocates competences related to the suppression of illicit drug trafficking on the high seas to states and international organizations, emphasizing the importance of collective efforts in this endeavor. By doing so, Article 108 underscores the

significance of shared competences among states to combat transnational crimes effectively. It promotes collaboration in intelligence-sharing, interdiction operations, and prosecution of individuals involved in drug trafficking, ultimately contributing to international security and stability.Having examined the general framework provided by UNCLOS, we now turn to the regional legal responses specifically designed to tackle the modern complexities of maritime drug trafficking.

1.a. The exercise of criminal jurisdiction over matters onboard the vessel – Article 27 LOSC

1.a.a. Territorial Sea

In every maritime zone, States are acquitted of rights, jurisdiction and duties which endeavor them to respond towards every unlawful act that potentially may take place. In territorial sea and internal waters State’s sovereignty applies; this means that the coastal state may take action against vessels engaging in transnational crimes for example drug or even human trafficking, and people smuggling, or illegal fishing, pollution, and intelligence gathering.

Regarding jurisdiction of the coastal state in territorial sea, Article 2(3) of the LOSC emphasizes the point that the coastal State’s ‘sovereignty over the territorial sea is exercised subject to this Convention and to other rules of international law’.

Sovereignty, in short, requires coastal States to observe duties and to balance their rights in the territorial sea with those of other States and the international community. This balance may most often be apparent with respect to enforcement jurisdiction; that is, a coastal State’s competence to prescribe laws is in most respects plenary, but enforcement of those laws in the territorial sea will be limited if enforcement would impinge on certain rights of other States.

A coastal State may exercise extensive legislative jurisdiction over merchant vessels in the territorial sea, even when they

are in innocent passage as well as administrative jurisdiction (eg creating sea lanes and traffic separation schemes) and enforcement jurisdiction.

On the other hand, a coastal State lacks enforcement jurisdiction over foreign warships and other government vessels operated for non-commercial purposes. Those ships are immune from boarding, arrest, detention, or the institution of proceedings although warships violating coastal State laws concerning passage through the territorial sea may be required to leave immediately, if they refuse a request to comply with such laws.

Articles 27 and 28 of the LOSC, concerning the exercise of criminal and civil jurisdiction on board merchant vessels in the territorial sea, leave the limits on coastal State enforcement jurisdiction imprecise. In many cases, the State ‘should not’ arrest foreign flag vessels or those on board, or conduct investigations on board. This phrasing, while technically permitting a coastal State to enforce its laws, recognizes that coastal States’ legal systems vary considerably, and that contextual application of jurisdictional competence is appropriate For example, enforcement is reasonable if actions on board a vessel ‘disturb the peace of’ the coastal State.

As for enforcement, the Convention permits coastal State investigation when there are ‘clear grounds for believing’ a vessel navigating in the territorial sea has violated coastal State or

international environmental measures, and authorizes proceedings against (including detention of) such vessels, subject to safeguards specified in Articles 223–233 of the LOSC The coastal State ‘shall’ exercise prescriptive jurisdiction to prevent pollution by dumping, and national laws concerning dumping ‘shall be no less effective’ than any global rules.

For merchant vessels not in innocent passage, the coastal State has full jurisdictional competence, even if it does not fully exercise it.

Passage through the territorial sea, which normally ‘shall be continuous and expeditious’, includes stopping ‘for the purpose of rendering assistance to persons, ships or aircraft in danger or distress’. Warships may have a right of ‘assistance entry’ into the territorial sea without permission, to provide emergency help to those in distress at sea, if the location of the distress is ‘reasonably well known’.

According to Article 18 of LOSC:

1. Passage means navigation through the territorial sea for the purpose of:

(a) Traversing that sea without entering internal waters or calling at a road stead or port facility outside internal waters; or

(b) Proceeding to or from internal waters or a call at such road stead

2. Passage shall be continuous and expeditious. However, passage includes stopping and anchoring, but only in so far as the same are incidental to ordinary navigation or are rendered necessary by force majeure or distress or for the purpose of rendering assistance to persons, ships or aircraft in danger or distress.

So, for instance a case where drugs or psychotropic substances are being loaded or unloaded into a vessel or to the land or from one ship to another one, falls clearly under art. 19, (2) (g) LOSC which stipulates that it is prejudicial to the peace, good order or security of a state to load and unload any commodity, currency or person

contrary to the customs, fiscal, immigration or sanitary laws and regulations of the coastal state.

In many national legislations, it is considered illegal according to customs and sanitary laws to load and unload drugs and psychotropic substances. If so, we cannot speak about an innocent passage anymore, so a coastal state may stop these activities by taking appropriate measures by having full jurisdiction over the vessel.

As mentioned above, the coastal state has full jurisdiction over vessels traversing its waters let alone vessels engaged in illegal activities. Such measures could include boarding, searching, arrest, and seizing of a vessel involved in illegal drug trafficking. Additionally, the competent authorities may also break up any place or container when the keys are withheld or unavailable, sanction or arrest (a part of) the crew on board of the vessel and engage in many other forms of sanctions.

The coastal State possesses civil and criminal jurisdiction over vessels from other States, except sovereign immune vessels, when they are in the process of innocent passage through its territorial sea.

Before the legal application, it is important to contextualize the notion of sovereignty itself within international law discourse. In popular usage ‘sovereignty’ is often understood as having complete and exclusive authority, setting it apart from ‘jurisdiction.’ However, it’s important to recognize that sovereignty is constrained by the rights and responsibilities prescribed by international law for independent states. The International Law Commission (ILC), during its preparations for UNCLOS I, observed that although ‘the rights of the coastal State over the territorial sea do not differ in nature from the rights of sovereignty which the State exercises over other parts of its territory,’ the exercise of sovereignty over the territorial sea must adhere to international law provisions. Article 2(3) of the LOSC underscores this notion: the coastal State’s ‘sovereignty over the territorial sea is exercised subject to this Convention and to other rules of international law.’ Even when coastal State rights on sensitive issues are explicitly labeled as ‘exclusive,’ such as in the

case of marine scientific researchCoastal State discretion is not without limits. If a coastal State permits marine scientific research in its territorial sea, such authorization should not unreasonably disrupt the rights of other States, such as the right to engage in innocent passage. Additionally, general principles of international law, such as good faith and the prevention of abusive practices, remain applicablein these scenarios.

In essence, sovereignty entails that coastal States must uphold certain responsibilities and strike a balance between their rights within the territorial sea and the rights of other States and the global community. This equilibrium is often most evident in the context of enforcement jurisdiction. While a coastal State’s authority to establish laws is generally extensive, the enforcement of those laws within the territorial sea is circumscribed when such enforcement would encroach upon the rights of other States, such as the immunities granted to warships. In sum, Shearer’s observation from 1986 remains relevant: there is no automatic presumption in favor of resolving claims of coastal State jurisdiction in the territorial sea solely in favor of the coastal State’s rights.

Article 27 of United Nations Convention on the Law of the Sea, 1982 governs the exercise of criminal jurisdiction irrespective

of whether the vessel is engaged in innocent passage. This can be categorized into three types of passage: lateral passage, inward passage, and outward passage. In the case of lateral passage, coastal States should generally refrain from exercising jurisdiction over activities onboard a ship during innocent passage. However, exceptions outlined in Article 27(1) apply, which include situations where the committed crimes have consequences affecting the coastal State, where crimes disrupt the peace or order of the

territorial sea, requests for assistance, or measures to combat illicit drug trafficking.

For instance, if a crew member on a vessel flagged under State A were to assault another crew member while transiting through the territorial sea of coastal State B during innocent passage, primary jurisdiction for investigating and addressing the assault remains with State A. This is because the assault occurred entirely within the vessel and did not impact the coastal State. Neither the vessel’s master nor State A sought assistance from coastal State B. Similarly, while both flag State A and coastal State B may have laws concerning the qualifications of ship engineers, the vessel’s transit under State A’s flag through coastal State B’s territorial sea does not change the engineer qualification requirements set by State A. However, if a vessel from State A were transporting cocaine destined for coastal State B’s territory, coastal State B could board the vessel and assert jurisdiction without State A’s consent in waters where it has the authority to do so, as this action is explicitly authorized under UNCLOS and customary international law.

Regarding inward passage, jurisdiction may not be exercised by the coastal State if the offense occurred before the ship entered its territorial sea.

In contrast, coastal States have broader jurisdictional rights over foreign vessels engaged in outward-bound passage, allowing them to enforce criminal laws against vessels departing from internal waters without significant restrictions.

1.a.b. Contiguous Zone

Within the contiguous zone, which is a narrow belt of water lying seaward of the territorial sea, a coastal State may act under certain circumstances in order and to enforce its customs, fiscal, immigration, and sanitary laws (F.I.S.C.) against foreign flag vessels and to prevent and punish offenses related to those areas.

Both Article 24(1) of the CTSCZ(which expressly characterizes the contiguous zone as ‘a zone of the high seas) and Article 33(1) of the LOSC provide that, in a zone contiguous to and beyond its territorial sea, a 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’. As Shearer has summarized, subsection (a) ‘applies to inward-bound ships and is anticipatory or preventive in character’, while subsection (b), ‘applying to outward-bound ships, gives more extensive power, and is analogous to’—though not subject to all the constraints associated with—hot pursuit.

Those capabilities allow a Coastal State to respond against security threats for instance drug trafficking as forms of violations of F.I.S.C laws. Regarding maritime security areas not touching upon F.I.S.C they can be governed according to the rights and duties that States have within the High Seas and EEZ.

A coastal State only has enforcement jurisdiction in the contiguous zone by providing for coastal State jurisdiction to regulate the removal of archaeological and historical objects from the seabed of its contiguous zone (‘the great advances in the speed and construction of modern ships’ arguably made it sensible to extend

coastal State enforcement jurisdiction to a contiguous zone broader than 12 nm.) The Coastal State has also Enforcement Jurisdiction in matters of F.I.S.C.

Some have argued that the coastal State has authority to exercise limited legislative jurisdiction (Limited prescriptive jurisdiction) in the contiguous zone, with respect for example to transshipment operations affecting customs, fiscal, sanitary, or immigration matters with respect to the prevention of such incidents.

The following clarification should be made here: when foreign ships enter the Contiguous Zone, no violation of the relevant legislation of the coastal state has yet taken place, which is why Article 33 speaks of prevention. Therefore, the measures taken by the coastal State should not include arrest, or any other coercive measures, but only the interception of the ship, the inspection of the cargo and the prevention of the ship’s entry into the territorial sea; the fact is that recently many States have been exercising repressive measures within the Contiguous Zone in cases of illegal immigration. Arrest will be possible if it is authorised by the relevant legislation or if permission has been granted by the flag State. On the contrary, if the ship is leaving the territorial sea and therefore the relevant legislation has already been violated, then the coastal state has the right to repress, i.e. the right to arrest and exercise full enforcement jurisdiction. Having clarified the extent of enforcement jurisdiction in the contiguous zone, we must now evaluate whether drug trafficking qualifies as an F.I.S.C.-related offense under Article 33.

Considering all these drug trafficking in the Contiguous Zone, it could not be included as form of infringement of fiscal, immigration, sanitary, or customary laws. According to article 33 of LOSC a State is able to take both preventive and punitive measures which means that if a coastal state knows that a vessel involved in illegal drug trafficking will enter its territorial sea or territory, the coastal state may take preventive measures. For instance the vessel may be asked to leave the contiguous zone or even a potential entrance to the territorial sea may be forbidden. Additionally, coastal state authorities may approach the vessel to ask information about its identity.

1.b. Illicit traffic in narcotic drugs or psychotropic substances – Article 108 LOSC

Moving from general enforcement capabilities to treaty evolution, we now consider how international law has gradually expanded its response to maritime drug trafficking.

The fight against illicit drugs trafficking by sea, at an international level has been and remains an on-going issue that needs to be faced. It is interesting however to examine the legislative developments and innovations in this field.

International legal control of dangerous drugs was consolidated and updated in the Single Convention on Narcotic Drugs, 1961, and amended by the 1972 Protocol of New York. It represents the foundation of the current system of drug control. It came into force on the 13th of December 1964 but encountered a great deal of confrontation before it was finally adopted.

The 1982 LOSC, not only contains a provision similar to that found in the 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone above referred to, but goes a step further in that it contains specific provisions dealing with illicit traffic on the high seas. It is hardly surprising that the Montego Bay Convention is often seen as expressing much of the current perception of what constitutes the international law as regards issues of relevance concerning illicit traffic by sea. At the same time, some have criticized it on account of the fact that despite the obligation on States to co-operate in suppressing that trade, few powers exist in the case of ships suspected of illicitly trafficking in drugs. All that is allowed, these commentators maintain, is that States, with reasonable grounds for suspecting that their own ships are engaged in the trade, may request the co-operation of other states in suppressing the traffic, although presumably there is an implication that other states should normally accede to such a request.

According to Article 108 LOSC - Illicit traffic in narcotic drugs or psychotropic substances: 1. All States shall cooperate in the suppression of illicit traffic in narcotic drugs and psychotropic substances engaged in by ships on the high seas contrary to international conventions. 2. Any State which has reasonable grounds for believing that a ship flying its flag is engaged in illicit traffic in narcotic drugs or psychotropic substances may request the cooperation of other States to suppress such traffic.

It is mandatory for all the signatory countries to cooperate for the suppression of the illicit traffic of drugs and psychotropic substances. Additionally, if a signatory country has a reasonable suspicion that a ship with its flag is engaged in illegal drug trafficking, that state may ask other states to cooperate.

Article 108 incorporates the general law of the sea relevant aspects of the international control of traffic in narcotic drugs and psychotic substances. The first paragraph sets out a general obligation for all states to cooperate in order to combat and suppress “illicit traffic in narcotic drugs” that is “contrary to international conventions”. The second paragraph provides a rationale for cooperation among states by establishing that a state may request the cooperation of others states if it has “reasonable grounds for believing that a ship flying its flag is engaged in illicit traffic in narcotic drugs or psychotropic substances”.

With regards to cooperation, the Enrica Lexie incident might help us shed some light on the interpretation of cooperation among states. In the Arabian Sea on February 15, 2012, an incident occurred involving two Indian fishermen being shot aboard the fishing vessel «St Antony,» allegedly by two Italian marines on the Italian oil tanker «Enrica Lexie.» This incident unfolded approximately 20.5 nautical miles off the coast of Kerala, India, after which the Italian tanker continued its journey for nearly three hours. The Indian Coast Guard intervened about 59 nautical

miles away, directing the Italian vessel to the nearby Indian port of Kochi, where the

Italian marines were apprehended and charged with murder under Section 302 of the Indian Penal Code. The issue of jurisdiction in this case sparked a dispute between Italy and India, with Italy pursuing provisional orders from the International Tribunal for the Law of the Sea to halt Indian prosecutions and secure the release of the detained marines, pending a determination by the UNCLOS Arbitral Tribunal on which nation holds jurisdiction over the matter. The culmination of the conflict arrived at The Hague in 2016, marked by the initial public hearing of the Arbitral Tribunal. Subsequently, the Arbitral Decision, referred to as the Award, was issued on May 21, 2020, and later published with amendments on August 10, 2020.

Italy’s primary contentions when submitting the request and notifying the Indian government of Italian contentions, were as follows:

a. India has contravened and continues to contravene international law by asserting and exercising authority over the Enrica Lexie and the Italian Marines concerning the Enrica Lexie episode. b) India has breached its duty under the Conventionto cooperate in repression of piracy.

However, the Tribunal noted that, prior to delving into the assessment of Italy’s argument concerning the Marines’ immunity from Indian criminal jurisdiction, in essence, the core of Italy’s claim, it must first ascertain whether it holds jurisdiction over Italy’s claim.