A model of this piece was initially featured by the U.S. Naval Battle School’s Stockton Heart for Worldwide Regulation underneath the title, “Rudderless and Adrift: States’ Unwarranted Timidity RespectingStateless Vessels.”
By Andrew Norris
Even though the oceans are extensively used for contraband smuggling, together with narcotics, there’s not a correspondingly strong authorized regime at sea for contending with this downside. Apart from a really restricted coastal State entitlement to ‘forestall’ customs offenses (together with narcotic trafficking) within the contiguous zone, the flag State alone is entitled to train prescriptive, enforcement and adjudicative jurisdiction over its vessels and people aboard them for such offenses in all waters exterior the sovereign waters (i.e. territorial sea and inward) of one other State. UNCLOS Article 108 merely exhorts States to cooperate in combatting narcotics trafficking at sea, and treaties such because the United Nations Conference towards Illicit Site visitors in Narcotic Medication and Psychotropic Substances (hereinafter Vienna Drug Conference), the Jeddah Modification to the Djibouti Code of Conduct, and Caribbean bilateral agreements usually simply present constancy on how such cooperation ought to happen. The Proper of Go to (ROV) per UNCLOS Article 110 is a useful gizmo, however is proscribed to a willpower of vessel nationality solely – jurisdiction over a vessel for any narcotics trafficking offenses stays the only province of the flag State within the case of a correctly flagged vessel.
Particular to the problem of legislation enforcement jurisdiction at sea, Article 4 of the Vienna Drug Conference requires Events to take measures to ascertain jurisdiction over violations of their narcotics prison legal guidelines occurring of their territory or on board a vessel flying their flag. It additionally means that Events take measures (resembling acquiring flag State consent) to ascertain jurisdiction over vessels flying the flag of one other State. What Article 4 doesn’t contact on is the power of States to ascertain and train jurisdiction over vessels with out nationality or these assimilated to vessels with out nationality underneath worldwide legislation (collectively referred to hereinafter for ease of reference as stateless vessels).
Recognizing that the shortcoming to exert maritime legislation enforcement jurisdiction over stateless vessels creates a big hole within the total world effort to fight narcotics trafficking at sea, some nations have prolonged their jurisdictional attain extra robustly over such vessels. For instance, Article 3 (Jurisdiction) of the 1995 Council of Europe’s ‘Settlement on Illicit Site visitors by Sea,’ implementing Article 17 of the Vienna Drug Conference, requires a State Get together to ‘take such measures as could also be needed to ascertain its jurisdiction over the related offences dedicated on board a vessel which is with out nationality, or which is assimilated to a vessel with out nationality underneath worldwide legislation.’ Equally, the U.S. fulfilled its obligations underneath Article 4 of the Vienna Drug Conference by increasing (and routinely exercising) its jurisdictional attain over stateless vessels in its principal maritime narcotics smuggling legislation, the Maritime Drug Regulation Enforcement Act (MDLEA).1
Sadly, such strong jurisdictional postures with respect to stateless vessels engaged in narcotics trafficking at sea are extra the exception than the norm. It’s not fully clear whether or not the failure by many States to extra aggressively assert jurisdiction over stateless vessels is the product of legislative lethargy (it requires affirmative motion by a State to resolve on, undertake, and publicize an enhanced jurisdictional posture) or a mistaken perception {that a} extra strong posture is forbidden by or opposite to worldwide legislation. As demonstrated beneath, this second foundation is legally incorrect, and to the extent nations are failing to undertake a extra strong jurisdictional posture towards stateless vessels primarily based on it, they’re voluntarily and needlessly restraining themselves to the final word good thing about maritime criminals.
Neither Typical legislation, customary worldwide legislation, nor choices of worldwide tribunals forestall a extra strong train of jurisdiction over stateless vessels. The Typical (or treaty) legislation of countries, as embodied in UNCLOS, doesn’t reply the query of the extent of jurisdiction States could train over Stateless vessels. All it says, in Article 92(2), is that ‘[a] ship which sails underneath the flags of two or extra States, utilizing them in line with comfort, could not declare any of the nationalities in query with respect to every other State, and could also be assimilated to a ship with out nationality.’ This provision is unsatisfactory in a number of methods. First, it solely pertains to one in all a number of means by which a vessel will be thought of stateless for jurisdictional functions – it’s fully silent as to different means (e.g. true statelessness, failure to make a declare of nationality). Additionally, it offers no steering in any respect on the final word concern, which is the jurisdictional consequence of a vessel being ‘assimilated to a ship with out nationality.’
Equally unsatisfying when it comes to establishing or defining the worldwide legislation associated to jurisdiction over stateless vessels is State apply. Customary worldwide legislation outcomes from a common and constant apply of States that they observe from a way of authorized obligation. A doctrine or precept that rises to the extent of customary worldwide legislation is binding on States to the identical extent as treaty legislation. Sadly, as comprehensively addressed in Chapter 15 of the United Nations Workplace on Medication and Crime’s Maritime Crime: A Guide for Prison Justice Practitioners (third ed.), ‘there isn’t a settled reply’ in State apply to the scope of jurisdiction {that a} boarding State could assert over a stateless vessel. In line with the Guide, ‘[s]ome States could decide that they’ll, in impact, deal with the vessel as one of many boarding State’s personal nationality’ and as a consequence ‘could declare that it could actually assert the identical jurisdiction over the suspect vessel because it may assert over a vessel of its personal nationality.’ Nonetheless, ‘[o]ther States could also be of the view that the statelessness as such of the vessel doesn’t suffice with the intention to assert jurisdiction over the vessel and the individuals on board. Accordingly, they might assert jurisdiction provided that there’s another jurisdictional hyperlink with the exercise of the vessel or the individuals involved’ – resembling, for instance, an assault on a boarding officer throughout a ROV boarding. Which viewpoint is right is just not the purpose right here. Slightly, the mere indisputable fact that this divergence in apply exists, by definition, means there isn’t a settled customary worldwide legislation that settles the problem.
The consequence of worldwide standard legislation that is still largely silent on the problem of the jurisdictional impact of vessel statelessness, and State apply falling into one in all two divergent camps, is there isn’t a definitive ‘rule of worldwide legislation’ on the problem of stateless vessel jurisdiction. In such a case, the Lotus precept (deriving from Case of the S.S. “Lotus” (Fr. v. Turk.), 1927 P.C.I.J. (Ser. A) No. 10), which is a elementary precept of worldwide legislation, stands for the proposition that ‘[the absence of a definitive rule] leaves [States] a large measure of discretion, which is barely restricted in sure circumstances by prohibitive guidelines. As regards different circumstances, each State stays free to undertake the ideas which it regards as finest and most fitted.’
In different phrases, the main focus within the absence of typically accepted legislation is just not on whether or not worldwide legislation permits a sure motion, however relatively whether or not is prohibits such an motion. Within the absence of such a prohibition, ‘all that may be required of a State is that it shouldn’t overstep the bounds which worldwide legislation locations upon its jurisdiction; inside these limits, its title to train jurisdiction rests in its sovereignty.’
In 2024, the U.S. Ninth Circuit Courtroom of Appeals in United States v. Marin (No.22-50154, selected January 17, 2024) utilized the Lotus precept to uphold a provision of the MDLEA that allows the U.S. to say prescriptive, enforcement, and adjudicative jurisdiction on the idea of statelessness over ‘a vessel aboard which the grasp or particular person in cost makes a declare of registry and for which the claimed nation of registry doesn’t affirmatively and unequivocally assert that the vessel is of its nationality.’ In line with the courtroom, ‘[d]efendants don’t determine a rule of worldwide legislation requiring an oral declare to nationality be rebuttable solely by a denial by the claimed flag state. In actual fact, such a rule may result in the untenable end result that neither the boarding state nor the claimed flag state have jurisdiction over a vessel as long as the claimed flag state doesn’t verify or deny nationality —undermining worldwide legislation’s position of facilitating the “achievement of frequent goals.”’ Since, in line with the Marin courtroom, no worldwide legislation prohibits the precise apply at concern, the U.S.’s train of jurisdiction on this foundation ‘is just not opposite to worldwide legislation underneath the Lotus precept’ and doesn’t ‘overstep the bounds which worldwide legislation locations upon . . . jurisdiction.2
A U.S. courtroom ruling is most definitely not determinative on the problem exterior the USA. Nonetheless, that ruling squarely addressed the worldwide legality of maybe probably the most aggressive of the conditions within the MDLEA that allows the usto train jurisdiction over a vessel on the idea of statelessness, and decided that there was no rule of worldwide legislation forbidding such an train in that state of affairs. Assuming this conclusion is right, utility of the Lotus precept results in a conclusion that the U.S. or every other nation selecting to undertake this explicit method to stateless vessel jurisdiction is free to take action as an train of State sovereignty.
The identical conclusion would apply to every other method not particularly prohibited by worldwide legislation. In actual fact, it may be argued that in view of the invitation, if not mandate, on States to develop their jurisdictional attain as a central part of the worldwide scheme to cooperatively deal with the scourge of narcotics trafficking at sea, the failure by States to avail themselves of mechanisms not prohibited to them by worldwide legislation is a self-inflicted infirmity that weakens the worldwide dedication to good order at sea and unnecessarily cedes authorized ‘area’ at sea to would-be traffickers and different purveyors of maritime dysfunction.
The underside line is that States ought to make clear the extent and parameters of their jurisdiction over stateless vessels of their home legal guidelines. In doing so, they need to be part of the States that, in line with the UNODC, ‘decide that they’ll, in impact, deal with the vessel as one of many boarding State’s personal nationality’ and as a consequence ‘could declare that it could actually assert the identical jurisdiction over the suspect vessel because it may assert over a vessel of its personal nationality.’ There isn’t a authorized bar to them doing so, and failure to take action merely weakens their very own maritime legislation enforcement energy and the general world scheme to deal with issues at sea. And eventually, although the main focus of this evaluation is on narcotics trafficking, that’s merely for illustrative functions. There isn’t a motive in any respect that nations couldn’t equally lengthen their jurisdictional attain over stateless vessels for every other forms of maritime crimes or issues, topic to every other authorized limitations which may exist.3
Andrew Norris, J.D., is a retired U.S. Coast Guard captain who at the moment works as a authorized and regulatory advisor by way of his enterprise, Tradewind Maritime Companies Inc. In 2024, he has supported the United Nations Workplace on Medication and Crime of their maritime capability constructing packages within the Pacific Ocean and Indian Oceans East areas. He additionally helps U.S. Protection Assist of Civilian Companies (DSCA) capability constructing packages in associate nations. He’s a founding father of the Maritime Safety and Governance Employees Course on the U.S. Naval Battle School, a resident 5-month course for worldwide officers targeted on maritime actions and missions wanting battle. His principal space of latest focus is on fostering collaboration and system enhancements by judges, prosecutors, and enforcers to raised obtain a profitable ‘authorized end’ in maritime legislation enforcement circumstances.
References
1 Title 46 U.S. Code Chapter 705
2 There have been some worldwide courtroom rulings that decision into query the continued vitality of the Lotus precept within the jurisdictional context. Nonetheless, these circumstances associated to jurisdiction over common crimes (resembling battle crimes or piracy), which, being worldwide crimes, can’t by definition be the topic of differential state jurisdictional interpretations. That isn’t so with respect to non-universal crimes like narcotics smuggling; the 1988 Vienna Conference, for instance, acknowledges the competency of States to craft prison prohibitions and their jurisdictional attain, even because it offers tips on the forms of prison actions such legal guidelines ought to deal with. It’s the creator’s view – to not point out that of the U.S. Ninth Circuit – that the Lotus precept, rooted as it’s in State sovereignty, is alive and properly within the context of jurisdiction over non-universal crimes, together with narcotics enforcement.
3 For instance, the U.S. adopts the MDLEA’s jurisdictional scheme over stateless vessels in its principal fisheries enforcement legislation. See 16 U.S.C. 1802(49). That is in accord with exhortations by, e.g., the Indian Ocean Tuna Fee or the Western and Central Pacific Fisheries Fee (WCPFC) that nations ‘take all needed measures, together with enacting home laws if acceptable, to forestall vessels with out nationality from undermining conservation and administration measures’ adopted to preserve and shield coated fish shares. Conservation and Administration Measure 2009-09, WCPFC.
Featured Picture: Gulf of Oman (Aug. 30, 2022) Luggage of unlawful narcotics sit on the deck of a fishing vessel interdicted by U.S. Coast Guard quick response cutter USCGC Glen Harris (WPC 1144) within the Gulf of Oman. (U.S. Coast Guard photograph)
