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Downloaded from Brill.Com09/29/2021 07:26:07AM Via Free Access 200 Telesetsky korean journal of international and comparative law 6 (2018) 199–218 brill.com/kjic U.S. State Practice Taking a Necessary Long-Arm Approach to Maritime Enforcement Anastasia Telesetsky Professor, University of Idaho, USA [email protected] Abstract This article summarizes U.S. State practice in the area of maritime enforcement. Focusing on the activities of the U.S. Coast Guard and the U.S. Navy, the article covers law enforcement for piracy and human trafficking, law enforcement for maritime ter- rorism and weapon trafficking, enforcement against illegal extraction of living marine resources, enforcement to protect the marine environment from pollution, enforce- ment to prevent accidents at sea, customs and illegal immigration enforcement, and drug trafficking enforcement. The article notes that the U.S. approach to maritime enforcement has been a “long-arm” approach ensuring enforcement of U.S. interests spanning oceanic regions. Keywords maritime enforcement – U.S. Coast Guard – piracy – weapon trafficking – prolifera- tion security initiative – marine resource protection – drug trafficking enforcement 1 Introduction Maritime law enforcement is an essential part of national security policy for the United States. In the United States, maritime law enforcement addresses a spectrum of ocean-based threats ranging from terrorism, weapon trafficking, piracy, drug smuggling, trafficking in persons, illegal fishing, and vessel-related crimes. For certain types of national security threats, the United States asserts extraterritorial enforcement powers leading to foreign arrests and seizures of property. © koninklijke brill nv, leiden, 2018 | doi:10.1163/22134484-12340112Downloaded from Brill.com09/29/2021 07:26:07AM via free access 200 Telesetsky This State practice summary offers a brief description of the primary U.S. maritime law enforcement institution – the U.S. Coast Guard – followed by a description of some specific U.S. maritime enforcement laws and policies. While not discussed extensively in this State practice summary, the U.S. Navy is also involved in maritime enforcement efforts including boarding ships sus- pected of trafficking weapons under the Proliferation Security Initiative (psi) and supporting the Coast Guard in drug trafficking interdictions and illegal, unreported, and unregulated (iuu) fishing enforcement.1 The U.S. Navy also coordinates closely with the U.S. Coast Guard on matters that involve migrants at sea. While U.S. maritime enforcement practices are tailored to address very specific problems ranging from weapon proliferation to human trafficking, one theme emerges from an examination of a range of enforcement laws. The success of U.S. maritime enforcement depends on the assertion of long-arm jurisdiction over activities that are often far removed from U.S. waters but that may have impacts on U.S. citizens or U.S. interests. The recurring theme for this article is the long-arm reach of U.S. law beyond U.S. territorial jurisdic- tion to combat global maritime crimes including iuu fishing, piracy, human trafficking, weapon trafficking, and drug trafficking. 2 Roles and Functions of the U.S. Coast Guard The principal and oldest maritime law enforcement agency in the United States with over 225 years of history is the U.S. Coast Guard presently orga- nized within the Department of Homeland Security. The Coast Guard is today a branch of the United States Armed Forces with a long history as a multi- mission government agency.2 The Coast Guard is not limited by the Posse Comitatus Act like the U.S. Army or the U.S. Air Force and has the congres- sional authority to execute U.S. laws.3 While the U.S. Navy is not limited by the Posse Comitatus Act, the Navy is also statutorily prohibited from directly participating in law enforcement activities unless authorized by law.4 The Coast Guard began its service August 4, 1790 when Congress and President George Washington agreed to support the proposal of Alexander 1 See e.g. 10 U.S.C. 279 (Requiring the assignment of Coast Guard personnel to surface naval vessels operating in a drug interdiction area). 2 14 U.S.C. 1. 3 18 U.S.C. 1385. 4 10 U.S.C. 275 (Restricting direct participation by military personnel in civilian search and seizure activities). korean journal of international and comparativeDownloaded law from 6 (2018) Brill.com09/29/2021 199–218 07:26:07AM via free access U.S. State Practice 201 Hamilton who was then Secretary of the Treasury for a service of cutters to act as the “revenue-marine” or the “revenue service”.5 Hamilton’s proposal for the new nation was to have a fleet of ten cutters that would be capable of ensur- ing that shipping tariffs would not be avoided, protecting ships from pirates, and preventing smuggling. Notably, the emphasis in these early years was on detecting and preventing economic crimes as the United States faced tremen- dous economic vulnerability. Of particular importance in the earliest years of the Coast Guard was the ability of Commanding Offices on the Revenue Cutters to board and search vessels for contraband. As Alexander Hamilton wrote in 1791: Revenue Cutter officers are considered officers of the Customs. The Act [1790 Tariff Act] gives you the authority to demand manifests and search vessels, but your capacity as officers of the Customs gives you some addi- tional powers and duties. You have examination authority, and it will be your duty to seize vessels and goods, when appropriate, for violation of Revenue laws. All your authority comes from law, however, and you shall not act where you do not have clear authority.6 As described below in sections detailing maritime law enforcement prac- tices, the Coast Guard’s missions have expanded over time beyond revenue violations and customs enforcement to include responsibilities for maritime enforcement, national security, and general safety at sea. The modern Coast Guard came into being with the merger of five independent federal agencies including the U.S. Revenue Cutter Service, the U.S. Life-Saving Service, the U.S. Lighthouse Service, Bureau of Navigation, and the Steamboat Inspection Service.7 From its modest 18th century fleet of 10 cutters, the Coast Guard today has approximately 23 cutters8 as well as hundreds of boats, and aircraft that 5 United State Coast Guard Historian’s Office, Timeline 1700s–1800s, available at http://www .history.uscg.mil/Complete-Time-Line/Time-Line-1700-1800/(Coast Guard Timeline). 6 Alexander Hamilton, Letter of Instruction to the Commanding Officers of the Revenue Cut- ters, Treasury Department (June 4, 1791) in Doctrine for the Coast Guard, U.S. Coast Guard Publication 1 (February 2014) at 105. 7 Doctrine for the Coast Guard, U.S. Coast Guard Publication 1. (February 2014) at 1. 8 A cutter is defined by the Coast Guard as a vessel 65 feet or longer. The Coast Guard’s 420 foot and 399 foot icebreakers are classified as part of the cutter fleet as well as river tenders and a harbor tug. U.S. Coast Guard, Office of Cutter Forces, available at http://www.dco.uscg.mil/Our-Organization/Assistant-Commandant-for-Capability-CG-7/ Office-of-Cutter-Forces-CG-751/Coast-Guard-Cutter-Fleet/. korean journal of international and comparativeDownloaded law from6 (2018) Brill.com09/29/2021 199–218 07:26:07AM via free access 202 Telesetsky are used for various missions. The Coast Guard is a sizable organization with almost 88,000 individuals supporting the services’ missions.9 Approximately 41,000 individuals are active duty, 7,000 are part-time reserve members, 8,500 are civilians, and 31,000 are volunteers. The Coast Guard’s operations are divided into two general geographical regions: the Atlantic and the Pacific. The Atlantic region is sub-divided into 5 regions with major district offices in Boston, Massachusetts; Washington D.C.; Portsmouth, Virginia; Miami, Florida; Cleveland, Ohio; and New Orleans, Louisiana. The Pacific region is sub-divided into four districts including with district offices in Seattle, Washington; Alameda, California; Honolulu, Hawaii, and Juneau, Alaska. After the merger of the Revenue Cutter Service with the Life Saving Service in 1915, Congress passed a broad range of legislation that authorizes Coast Guard enforcement activities. Congress authorized the Coast Guard to “enforce or assist in the enforcement of all applicable Federal laws on, under, and over the high seas and waters subject to the jurisdiction of the United States.”10 More specifically, Congress has authorized the Coast Guard to board and inspect ves- sels subject to U.S. jurisdiction both within U.S. waters and on the high seas.11 The Coast Guard may undertake a boarding exercise as part of the enforcement of U.S. customs laws.12 The 2002 Marine Transportation Security Act has pro- vided further enforcement powers to the Coast Guard including the creation of Maritime Safety and Security Teams as fast deployment enforcement units.13 The Coast Guard is actively involved in enforcement activities covering a range of subject matters and Federal Laws including: (1) National security; (2) Drug interdiction; (3) Migrant Interdiction; (4) Fisheries Law Enforcement; and (5) Marine Environmental Protection.14 Since the Coast Guard became part of the Department of Homeland Security, the Coast Guard leadership distinguishes between its missions that are “homeland security” missions 9 United States Coast Guard, Workforce available at http://www.overview.uscg.mil/ Workforce/. 10 14 U.S.C. § 2 (1). 11 14 U.S.C. § 89 (“The Coast Guard may make inquiries, examinations, inspections, searches, seizures, and arrests upon the high seas and waters over which the United States has juris- diction for the prevention, detection, and suppression of violations of laws of the United States.”). 12 Id. 13 46 U.S.C. § 70106. 14 2002 Homeland Security Act, P.L. 107–296 (Nov. 25, 2002) Sec.
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