Faculty of Law
States rights and obligations in case of illegal drug
trafficking by the sea
Master thesis in Law of the Sea … August 2014
Table of Content
1.2 Sources and methods of the thesis
1.3Structure of the work
2. Illegal drug trafficking by the sea as crime that has international character
2.2 Types of the crimes in international law
2.3 Illegal drug trafficking by the sea and its elements
3. Flag State rights and obligations in case of illegal drug trafficking by the sea
3.3 Nationality of the vessel
3.4 Actions of the flag State to prevent illegal drug trafficking
3.5 Actions of the flag State when the crime is committed
4. Coastal State jurisdiction over the foreign vessels involved in illegal drug trafficking...... 15
4.2 Territorial Sea and Innocent passage regime
4.3. Contiguous Zone
4.4 Right of Hot Pursuit
4.5 Jurisdiction over the vessels involved in illegal drug trafficking in areas beyond Territorial Sea and Contiguous zone
5. Third States rights and obligations in case of illegal drug trafficking by the sea.................. 24
5.2 Rights and obligations of the third States in case of illegal drug trafficking by the sea.... 24
5.3 Rights and obligations of the third States under the special agreements
1 1. Introduction
1.1 Introduction Nowadays modern society is faced with growing problem of drug abuse. According to the United Nations World Drug Report in 2012 between 162 or 3,5 % and 324 million or 7,0 % of the world community tried drugs at least once. From 16 till 39 millions of people take drugs regularly. There are 12,7 millions of people injecting drugs, and this also raises other serious problems like HIV and hepatitis C. 1 All this data shows that it is necessary for the States to take actions. It is really important for each country to make an effective system of measures against drug abuse. But at the same time, on the international level there should be established legal instruments on States actions against transnational crimes, connected with drug abuse.
One of these crimes is illegal transportation of drugs by the sea areas.
Illegal drug trafficking by the sea is a dangerous and complicated crime for prosecution.
From the one hand world trade has to be over States control in order to prevent that crime. Also all the people on board the ship are obliged to be over the restriction of the States for the same reason. So, illegal drug trafficking destroy social and economic communication between States.
From the other hand, if the drugs are transferred from one country to another, it is quite complicated for the State to prosecute that crime because the criminals, evidence, witness and other are located in different countries, within the jurisdiction of different States. Also in a process of drug transportation different maritime areas can be used. In each of the zone States have different volume of rights and obligations.
So, it is really important to identify which rights and obligations States have in case of illegal drug trafficking by the sea. This explains the choice of topic of the thesis “States rights and obligations in case of illegal drug trafficking by the sea”.
The reason of the topic choice is determined by the problematic content of the crime – illicit drug traffic by the sea.
The main legal question in the thesis is the following: Which actions are different States competent to take in case of illegal drug trafficking by the sea?
In order to answer the main legal question it is necessary to describe some subquestions.
1 World Drug Report of United Nations Office on Drugs and Crime, 2014.
https://www.unodc.org/documents/wdr2014/World_Drug_Report_2014_web.pdf, 08.08.14, p. IX.
2 Firstly it is important to identify what is meant by the notion of illegal drug trafficking by the sea, its main features, characteristics and place in the system of international unlawful acts.
Secondly, it is necessary to find out the obligations of the flag State in respect of its vessels involved in illegal drug trafficking and what actions it is competent to take. As far as the flag State exercises jurisdiction over its vessels it should take actions in case of illegal activity.
Also, crime can be committed in maritime areas with jurisdiction of the coastal State.
So, thirdly, it is necessary to identify what are the obligations of the coastal State in respect of foreign flagged vessels involved in illegal drug trafficking in its maritime zones and what measures it may take.
Fourthly, what measures may third states take in case of illegal drug trafficking in the high seas and in the EEZ?
1.2 Sources and methods of the thesis Illegal drug trafficking by the sea as a crime has a variety of sources. There are different levels of sources: from global international documents and customary international law to regional, bilateral also some non-legally binding instruments and national legislation.
Two main legal sources could be defined. There are the 1982 UN Law of the Sea Convention (LOSC) and the 1988 UN Convention against Illicit Drug Traffic in Narcotic Drugs and Psychotropic Substances. One of the methodological challenges was the relationship between the two documents.
LOSC is the main legal source in law of the sea. But at the same time it gives general guidance on illegal drug trafficking by the sea. States are required to cooperate in case of illegal drug trafficking and States are entitled to a request for the help.2 But it doesn’t give a detailed description of measures to deal with vessels, involved in illegal drug trafficking and other problems. LOSC says about the regime of the flag and coastal State jurisdiction over the vessels. So, in case of absence of the regulation, other legal sources should be used.
UN Convention against Illicit Drug Trafficking in Narcotic Drugs and Psychotropic Substances 1988 is also an important source. The Convention includes the definition of the illegal drug trafficking, its main characteristics and also defines the main features of illegal drug trafficking by the sea.
2 United Nation Law of the Sea Convention 1982, Montego Bay 10 December, (1982). Article 108.
3 So, that is the relationship between two of these documents, and the question is and how these documents should be used.
In my view, UN Law of the Sea Convention and UN Convention against Illicit Drug Traffic in Narcotic Drugs and Psychotropic Substances should be applied together. In some provisions these two documents repeat each other. For instance both of them say about the duty to cooperate in case of illegal drug trafficking by the sea. But in some cases one of the conventions regulates particular issues in a broader scope than the other one. So, according to that both conventions should be used.
Also it is really important to mention the relationship between global and regional /bilateral agreements. It is necessary because often these agreements expand the rights and obligations of the States. For instance there are few regional and bilateral agreements, which are also really important. Examples of these documents could be Agreement between Hellenic Republic and the Republic of Turkey on cooperation of the Ministry of Public Order of the Hellenic Republic and the Ministry of Foreign Affairs of the Republic of Turkey on combating crime, especially terrorism, organized crime, illicit drug trafficking and illegal immigration, Agreement between the Government of the Republic of Trinidad and Tobago and the Government of the United States of America concerning maritime counter-drug operations, Agreement between the government of the United States of America and the Government of the Republic of Guatemala concerning cooperation to supress illlicit traffic in narcotic drugs and psychotropic substances by the sea and air, The 1995 Council of Europe Agreement.
Other source could be non-legally binding instruments. For instance IMO Resolution MSC.228(82) on Revised Guidelines for the Prevention and Suppression of the Smuggling of Drugs, Psychotropic Substances and Precursor Chemicals on Ships Engaged in International Maritime Traffic. It covers issues of the preventative and other actions in case of illegal drug traffikcing by the sea. Even if a document is non legally-binding it can still be used, as far as it shows a good practice of the actions, which should be done.
However in a process of working on the thesis doctrinal sources have been used as well.
1.3 Structure of the work As the topic of the international criminal acts is quite complicated thesis have an extensive structure. Firstly it is necessary to identify the definition of the crime - illegal drug trafficking by the sea and its place in the system of international unlawful acts (chapter 2). For the purpose of knowing which actions could be done about illegal drug trafficking by the sea 4 rights and obligations of the flag and coastal State should be identified (chapters 3,4,5). Also sometimes States other than flag and coastal States can take measures about the crime (chapter 6).
Following structure makes it possible to see the problems and all the issues arising with them from the different sides and get independent results.
5 2. Illegal drug trafficking by the sea as crime that has international character
2.1 Introduction In the global world it is becoming more important for all States to cooperate, because the problems of the modern society could not be solved by the actions of only one State. One of the ways of this cooperation, and one of the more important is cooperation to prevent and stop and prevent illegal activity.
There are different types of crimes within international law, but all of them cause damage to life, health and a normal relationship between States. It is more important for the States to cooperate against international crimes because such crimes concern the rights and interests of several countries in the same time.
So, the main legal question for this part is: What is qualified as illegal drug trafficking by the sea?
In this part I am going to try to answer this question.
2.2 Types of the crimes in international law There are two types of crimes within the modern international law: international crimes and crimes that have international character.3 Firstly, the international crimes or “core crimes” 4 are the ones that encroach on the rights and interests of all society. And the responsibility for committing such kind of crimes is posted by whole community. These crimes are: crimes against humanity, war crimes and crimes against peace.
Secondly, the crimes that have international character also described as transnational crimes5. This type of crimes is established in international conventions, and their object is to ensure peace, safety, and normal relationship between States, lives and health of people. 6 Crimes that have international character cause damage not for the whole community, but for more than one State. They include: piracy, illegal drug trafficking, human trafficking, slavery, terrorism, etc. Transnational crimes are quite dangerous because the criminals, evidence, witnesses are located in different countries, so it makes it difficult to investigate it.
These crimes could be defined though the following principles:
3 Kalamkayan. Inernational law: lecturies. Moskow, Eksmo, 2009. P.290.
4 Robert Cryer, Hakan Friman, Darryl Robinson, Elizabeth Wilmshurst, An Introduction to International Criminal Law and Procedure, Cambridge University Press, 2014. P. 329.
5 Ibid. P.329.
6 Kalamkayan. Inernational law: lecturies. Moskow, Eksmo, 2009. С.290.
6 Responsibility for the crime is posted on the person, not on the government.
Objects of the crime - normal relationship between States, international cooperation, human rights and others.
Offences are established in national legislation, but based on international rules.7 One of the crimes, that has international character is illegal drug trafficking.8 One of the ways to commit that crime is using sea areas to transfer the drugs.
2.3 Illegal drug trafficking by the sea and its elements It is important to determine what is illegal drug trafficking by the sea as a crime (crime – here and after)?
According to the UN Convention against Illicit Drug Traffic in Narcotic Drugs and Psychotropic Substances all States should take measures to establish criminal offence for the
“production, manufacture, preparation, extraction, cultivation”9 – means the process of making drugs, using deferent ways and also preparing for that, in business scale or for private usage;
“offering, offering for sale, sale”10 – means actions to make other person use the drugs with or without payment;
“distribution, delivery, dispatch, dispatch in transit, transport, importation or exportation”11 – means any acts of transferring the drugs in or outside the country;
“possession, purchase”12 – personal usage or getting;
Organization of the drug-making process, action for pushing someone to make illegal trafficking.
For better understanding of the sense of the crime and its main characteristics it is necessary to identify its corpus delicti.
First of all it is necessary to indentify object of the crime, which means the rights and legal interests violated by the crime. For illegal drug trafficking by the sea object will be a normal relationship between States, economic and social connection, lives and health of people, safety of navigation.
7 Panov V.P. Communication between States against international criminal acts. Moscow, Urist, 1993. P.160.
8 Kalamkayan. Inernational law: lecturies. Moskow, Eksmo, 2009. С.290.
9 UN Convention against Illicit Drug Traffic in Narcotic Drugs and Psychotropic Substances, Article 3(a)(i) 10 Ibid.
12 Ibid. Article 3(a)(ii).