SECOND EDITION MARITIME CRIME: A MANUAL FOR CRIMINAL JUSTICE PRACTITIONERS JUSTICE JUSTICE PRACTITIONERS MARITIME CRIME: A MANUAL FOR CRIMINAL FOR MANUAL A CRIME: MARITIME AST GUARD CO GLOBAL MARITIME CRIME PROGRAMME UNITED NATIONS OFFICE ON DRUGS AND CRIME Vienna Maritime Crime: A Manual for Criminal Justice Practitioners Global Maritime Crime Programme UNITED NATIONS Vienna, 2019 © United Nations, June 2019. All rights reserved, worldwide. The designations employed and the presentation of material in this publication do not imply the expression of any opinion whatsoever on the part of the Secretariat of the United Nations concerning the legal status of any country, territory, city or area, or of its authorities, or concerning the delimitation of its frontiers or boundaries. Publishing production: English, Publishing and Library Section, United Nations Office at Vienna. PREFACE The Global Maritime Crime Programme (GMCP) of the United Nations Office on Drugs and Crime (UNODC) provides Member States with technical support to tackle the full range of transnational maritime crime. This Manual underpins that technical support. It is used both as a training tool in the capacity-building work carried out by the Programme, and as a guide for criminal justice practitioners working on maritime cases. The second edition of the Manual contains an examination of a number of maritime crimes in detail for the first time, including the smuggling of migrants, terrorism, fuel theft and kidnap for ransom. The Manual also includes a new chapter on human rights at sea and new annexes, printed as separate publications, on the legal issues surrounding floating armouries and on the use of force by privately contracted security companies. We hope you find the Manual of use in your work. Alan Cole Head, Global Maritime Crime Programme iii ACKNOWLEDGEMENTS This Manual was prepared for the United Nations Office on Drugs and Crime (UNODC) with significant contributions of the following academic experts: Robert McLaughlin, Sofia Galani and Ian Ralby as principal contributors, with invaluable input and feedback from Henri Fouche; Douglas Guilfoyle; Wolff Heintschel von Heinegg; Yurika Ishii; Patricia Jimenez Kwast; Ali Kamal-Deen; Stuart Kaye; Natalie Klein; David Letts; Cameron Moore; Efthymios Papastavridis; Donald Rothwell; Tim Stephens and Andrey Todorov. Sincere thanks to experts from our Member States and colleagues from UNODC, the International Maritime Organization and the Division for Ocean Affairs and the Law of the Sea who participated in the lively chapter reviews at our two expert review meetings or provided comments to the Manual electronically. The group effort was not only enjoyable but has produced a great, practical product. iv CONTENTS Preface iii Part I. Introduction and background 1 1. What law applies at sea? 1 2. How maritime zones are measured 15 3. Maritime zones and powers: internal waters, territorial sea and archipelagic waters 25 4. Maritime zones and powers: contiguous zone, exclusive economic zone and high seas 37 Part II. General principles 49 5. Maritime law enforcement 49 6. Human rights in the maritime domain 69 7. Conducting boarding, search and seizure operations 83 8. Searching for and collecting evidence at sea 97 Part III. Some specific activities of maritime law enforcement 109 9. The maritime crime of piracy 109 10. Kidnapping and hostage-taking at sea 123 11. Maritime terrorism offences 131 12. The maritime crime of illicit traffic in narcotic drugs and psychotropic substances by sea 143 13. Smuggling of migrants by sea 153 14. Illicit oil and fuel activities in the maritime domain 165 v Part I. Introduction and background Chapter 1 What law applies at sea?at sea? KEY POINTS 1. There is an extensive legal regime that covers conduct upon the oceans. 2. There are many treaties and customary international law rules that apply to conduct at sea. 3. The centrepiece of this regime is the United Nations Convention on the Law of the Sea of 1982, which, along with customary international law, governs conduct at sea. 4. It is vital that maritime law enforcement agencies know what laws their State has passed in order to make international law applicable: (a) Within their State’s maritime zones, (b) To people and vessels of their State, and (c) In some circumstances, to vessels without nationality, so as to enable their State to engage in maritime law enforcement and prosecutions in relation to breaches of those laws. 5. A flag State generally has exclusive jurisdiction over a vessel flying its flag. However, there are exceptions to this rule, which in some circumstances allow another State to exercise jurisdiction over that vessel or people, things and conduct in that vessel. 6. This Manual examines legal considerations in maritime law enforcement. As such, it does not address the use of force in relation to contested claims at sea, the law of armed conflict or other national defence operations. KEY TERMS INTERNATIONAL LAW: The rules and other norms, both written and unwritten, that govern legal relations between States. International law includes many rules and other norms that relate to the rights and obligations that States have or may claim in relation to maritime law enforcement. TREATY/CONVENTION: An international agreement concluded between two or more States which binds those States to act in a particular way, to relate with each other in a particular way and/or to manage competing claims and other issues between them through a particular process. These agreements are in written form and are governed by international law. CUSTOMARY INTERNATIONAL LAW: International obligations arising from established State practice which bind States in their conduct and relations and are not reduced to a written instrument. States abide by these legal obligations because they consider themselves legally obliged to do so. Such customary rules can sometimes be difficult to identify, and States differ as to which rules meet the requirements of being customary international law. IMPLEMENTATION IN NATIONAL LAW: For an international rule to be actionable within a State, or useable by that State’s agents (such as navies, coastguards and marine police) as an authorization or source of power, it needs to be incorporated into that State’s own national law. For some States, this is automatic; for example, a new treaty becomes part of the State’s national legislation upon signature and ratification. For other States, a further act of “domestication” is required, such as passing a new law or regulation which incorporates that international rule into national law. These approaches are often called the “monist” and the “dualist” system, respectively. MARITIME CRIME: Conduct which is perpetrated wholly or partly at sea and is prohibited under applicable national and international law. 4 MARITIME CRIME: A MANUAL FOR CRIMINAL JUSTICE PRACTITIONERS INTRODUCTION 1.1 Why is it important for law to As a result, it is vital to have rules that govern how apply at sea? States manage resources, control crime and relate with one another at sea. However, these rules can still create There is an extensive regime of laws that applies in jurisdictional difficulties for States because at sea, relation to activities which take place in, over and jurisdiction is not always as complete, and the hierar- under the sea. Some of these rules are universal and chy of jurisdiction is not always as clear, as is generally therefore apply to all States; some are regional and the case in land territory. On land there is, at least in apply to a limited number of States in a certain geo- theory, always a clearly superior jurisdiction—that of graphic region; some are bilateral and apply only to the sovereign territorial State. the two States which have agreed to the laws. It is Consequently, the way in which jurisdiction is important to have such rules governing conduct and delimited at sea is by designating certain maritime relationships at sea for many reasons: First, the idea zones in which coastal States have certain rights and of a lawless space at sea (or in any other region) is by retaining the concept of sovereign jurisdiction over against the interests of States, and thus a system of vessels in the form of flag State jurisdiction. laws applicable at sea has emerged to ensure account- ability for proscribed conduct regardless of where 1.2 International legal regimes it occurs. that apply at sea Another reason is that State interests often interact at sea, for example when ships of different States Treaties. Many treaties apply at sea and in relation to collide or a national from one State harms a national the sea. The United Nations Convention on the Law from another State aboard a ship, and it is important of the Sea of 1982 (UNCLOS) is considered to be the to have rules which describe how to manage these fundamental expression of the rules governing general jurisdictional conflicts and crossovers. relationships and jurisdictions at sea. In effect, it is a A third reason is that the seas are divided into “constitution” for the sea. various zones in which States have different, and Other treaties deal with issues that are not specifi- sometimes competing, sets of rights, powers and obli- cally “maritime” in nature, but which can apply both gations. Rules are necessary in order to allocate and at sea and on land. For example, many of the pro- describe the rights, powers and obligations of States in visions in the Rome Statute of the International these zones. Criminal Court apply equally to conduct perpetrated Yet another reason is that the use of the seas as a at sea and on land. Sometimes the way in which a means of transport and the exploitation of some com- general treaty rule is applied at sea requires some mon resources are considered to be rights available to adjustment or a slightly different understanding, pre- all States.