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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 terrorism and weapon trafficking, enforcement against illegal extraction of living marine resources, enforcement to protect the marine environment from pollution, enforcement 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 – proliferation 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.

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 suspected 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 jurisdiction 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 organized 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 congressional 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).

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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 ensuring 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 practices, 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 vessels 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 provided 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 jurisdiction 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. 888 Preserving Coast Guard Mission Performance.

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 203 and those that are “non-homeland security”.15 “Homeland security” missions include protection of U.S. ports and coasts, drug interdiction, and migrant interdiction. “Non-homeland security” missions include marine safety, search and rescue, prosecuting illegal fishing, aids to navigation, oil spill response, and ice-breaking.16 Because Coast Guard enforcement issues often involve the activities of foreign-flagged vessels, the Coast Guard relies on interagency coordination and diplomatic communications to ensure that the sovereignty of foreign states is respected during Coast Guard operations. Where there is no unilateral jurisdiction provided under a U.S. law for the U.S. to exercise jurisdiction, the U.S. will seek consent from flag States or coastal States before commencing operations outside of U.S. waters or involving foreign-flagged vessels.17

3 Law Enforcement Practices

This section summarizes historic and contemporary maritime law enforcement practices in the United States in the areas of piracy, human trafficking, maritime terrorism, weapon trafficking, illegal marine resource extraction, pollution enforcement, safety enforcement, customs enforcement, and immigration enforcement. Most of these practices involve the Coast Guard taking a leading role but some practices such as enforcement against piracy involve multiple agencies working in cooperation.

3.1 Law Enforcement for Piracy The United States recognizes piracy as a crime of universal jurisdiction and law enforcement officials have legal authority to cast their enforcement net wide to capture pirates who have violated the “law of nations”. Piracy is a federal crime and one of the only violations that the U.S. Supreme Court repeatedly has recognized as the type of case that non-nationals may bring in U.S. courts for damages.18

15 U.S. Coast Guard Missions, available at https://www.overview.uscg.mil/Missions/ (Describing 11 missions codified by the 2002 Homeland Security Act and classified as “homeland security” or “non-homeland security” missions). 16 Derek Grimes. et al. (Eds.), 2006 Operational Law Handbook, (Judge Advocate General’s Legal Center and School, 2006) at 516. 17 Id. at 515. 18 18 U.S.C. § 1651 (“Whoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the United States, shall be

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Before the emergence of the modern coast guard, U.S. revenue cutters had orders from the government to capture pirates in U.S. waters. There are many colorful examples of anti-piracy activities from history of the revenue cutters. In 1793, the cutter Diligence captured a pirate vessel in the Chesapeake Bay by driving the pirate boat ashore. In 1819, the crew of the Alabama and Louisiana boarded the pirate vessel Bravo off the southern coast of Florida and took the vessel in hand-to hand combat. In 1820, landing parties from the cutters Alabama and Louisiana destroyed a pirate base on Breton Island, Louisiana as part of a project to combat piracy in the Gulf of Mexico.19 Notably, all of these examples illustrate the revenue cutters undertaking enforcement operations close to the United States. Expanding beyond its early history close to the U.S. shore, the U.S. today actively takes enforcement actions against modern pirates across the globe. The U.S. Navy often with support from the U.S. Coast Guard have been actively involved in fighting piracy around the Horn of Africa, Gulf of Guinea, and in Southeast Asia. While the Navy does not generally participate in law enforcement, there is a statutory exception for combatting piracy. The U.S. criminally prosecutes piracy, which includes not just statutorily defined violations20 but also acts recognized by the international community as constituting piracy.21 As part of its maritime law enforcement against pirates, the U.S. undertakes U.S. prosecutions of individuals supporting acts of piracy even when those individuals may never have entered the high seas.22 In the Shibin case, a U.S. Circuit Court decided that a Somalian negotiator working for a group of pirates violated U.S. piracy laws even though he acted only in Somalia and in Somalian territorial waters. His prosecution was based on the fact that his actions contributed substantially to the facilitation of two high seas piracies. In deciding to prosecute Shibin, the Court observed that international maritime law prosecutions do not require an extradition treaty because an absence

imprisoned for life.”); Alien Tort Statute Act 28 U.S.C. § 1350; Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). 19 United States Revenue Cutter Service (1790–1915), available at http://www.uscglightship sailors.org/started/cutter_svc/RCS-Overview.pdf. 20 18 USCS §§ 1651–1661. 21 United States v. Hasan, 747 F. Supp. 2d 599, 606 (D. VA. E.D.) (2010) (Finding that even though the Somali pirates had not completed an act of robbery against the ship that was covered by the Statute, the international community custom to prohibit violence towards vessels would qualify as general piracy.) 22 United States v. Shibin, 722 F. 3d 233 (4th Cir. 2013).

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 205 of an extradition treaty does not limit the court’s jurisdiction over a crime of universal jurisdiction.23 Depending on the nature of the piracy, enforcement sentences can be severe. In 2015, the U.S. courts imposed a life sentence on a Somali pirate who opened fire on a U.S. navy vessel (the uss Ashland) in international waters off Yemen even though the defendant argued that such a sentence violated his constitutional rights to be free of the cruel and unusual punishment of a life sentence.24

3.2 Law Enforcement for Human Trafficking One of the earliest jobs of the revenue cutters was to enforce a prohibition on the slave trade. In 1794, when Congress made it illegal for US citizens to engage in the international slave trade, revenue cutters were ordered to enforce the law. The revenue cutter Governor Jay captured the slave ship Betsy in the Boston Harbour in 1794. This law was subsequently extended to non-U.S. citizens in 1807 who were prohibited from importing slaves. In 1820, Congress declared slave trade as an “act of piracy” subject to prosecution. The revenue cutter Dallas captured the slave ship General Ramirez off the coast of St. Augustine, Florida with 280 Africans aboard.25 The U.S. combats human trafficking which is a form of modern day slav- ery as individuals are smuggled across oceans to perform unpaid or underpaid labor often in unregulated industries such as the sex trade.26 Human trafficking is prohibited in the United States and its waters.27 The U.S. Coast Guard undertakes interdiction exercises and participates in an Executive Interagency Task force to Monitor and Combat Trafficking in Persons. One example of Interagency cooperation is the Caribbean Border Interagency Group. The U.S. is also a party to the Protocol against the Smuggling of Migrants by Land, Sea and Air (“Smuggling Protocol”)28 which implements the United Nations

23 Id . at 244 (Observing that an extradition treaty would only impact on a court’s jurisdiction where the treaty explicitly forecloses the exercise of a court’s jurisdiction). 24 U.S. v. Said, 798 F.3d 182 (4th Cir. 2015). 25 United States Revenue Cutter Service (1790–1915), available at http://www.uscglightship sailors.org/started/cutter_svc/RCS-Overview.pdf. 26 18 U.S.C. §§ 1581–1597. 27 18 U.S.C. § 1587 (1948) (“Whoever, being the captain, master, or commander of any vessel found in any river, port, bay, harbor, or on the high seas within the jurisdiction of the United States, or hovering off the coast thereof, and having on board any person for the purpose of selling such person as a slave, or with intent to land such person for such purpose, shall be fined under this title or imprisoned not more than four years, or both.”). 28 U.N. Treaty Series, vol. 2241, p. 507. Doc. A/55/383; The U.S. became a party on December 3, 2005, U.S.T. 528 (January 1, 2018).

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Convention against Transnational Organized Crime. Under the Smuggling Protocol, non-flag States may intercept a vessel suspected of smuggling people and provide for safe passage of the smuggled individuals to a port of disembarkation.29 The U.S. navy has been recently involved in rescuing migrants who were being trafficked across the Mediterranean in unseaworthy vessels that capsized.30

3.3 Law Enforcement to Combat Maritime Terrorism After the unprecedented attacks by al-Qaeda terrorists on the USS Cole in Aden, Yemen in 2000, the U.S. became increasingly involved in monitoring the oceans for terrorism related activities. Given the real possibility that weapons and other goods intended for terrorist activities might be concealed on board a non-U.S. vessel, the U.S. initiated the Proliferation Security Initiative (psi) in 2003 and invited other States to join it in preventing proliferation of weapons of mass destruction (wmds).31 Subsequently, the U.S. was involved in amend- ing the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (sua Convention) to make it a criminal offense to transport wmds (either “explosive, radioactive material” or “biological, chemical, nuclear” weapons) and related goods by sea.32 Parties to the treaty are permitted to board ships suspected of transporting wmds and related goods after receiving authorization from a flag State.33 The sua Convention as implemented in U.S. law provides for the possibility of extraterritorial enforcement. The “knowing” transport of weapons of mass destruction by a U.S. flagged vessel operating anywhere in the world or on “any vessel within the United States” maritime jurisdiction or on “any vessel outside the United States and on the high seas” is a violation of U.S. law if the materials in question are suspected of being deployed against any U.S. citizen.34 The U.S. understands weapons of mass destruction to include biological agents, chemical weapons, explosive devices, nuclear material, and other radioactive material.35 This broad exercise of jurisdiction is legitimized on the basis of the

29 Id. at Article 8. 30 Associated Press, US Navy Ship Seeks to Disembark Migrants Rescued in the Mediterra- nean, June 15, 2018. 31 Proliferation Security Initiative: Statement of Interdiction Principles, September 4, 2003, available at https://www.state.gov/t/isn/c27726.htm. 32 2005 Protocol to Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, Article 3bis; U.S.T. 530 (Entry into Force March 6, 1995, amended October 14, 2005). 33 Id. at Article 8bis. 34 18 U.S.C. § 2283 (a). 35 18 U.S.C. § 2283 (c).

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“effects principle” where a State can act to protect its own territorial interests and the “protective principle” where a party can protect its state interests. Any violation is punished by the possibility of both a fine and imprisonment “for any term of years or for life.”36 The Proliferation Security Initiative and the sua Convention operate in tandem in the United States to protect the U.S. from being a target of maritime terrorism and from being the recipient of certain materials that could be used in a land-based terrorism attack. The principles of the psi call on States to cooperate on communicating information of suspicious activity,37 inspect suspect vessels under their jurisdiction,38 and give serious consideration to consenting to a boarding where a vessel is suspected of transporting wmds.39 One hundred and three States have agreed to participate in the psi voluntary framework and some of these States engage in joint maritime exercises and expert meetings to address non-proliferation. On the basis of relationship built under the psi framework, the U.S. has concluded nine bilateral ship-boarding agreements with the Bahamas, Belize, Croatia, Cyprus, Liberia, Malta, Marshall Islands, Mongolia, and Panama. Several of these States are countries with large commercial ship registries. These reciprocal agreements allow for the boarding of vessels suspected of carrying weapons of mass destruction that are either flagged to or registered as a bareboat charter to one of the parties of an agreement.40 All of these agreements reflect an effort to extraterritorially extend U.S. capacity for enforcement jurisdiction to combat potential terrorism acts. While a partner State can deny permission to board and search a vessel, a partner State may also authorize boarding and search by the U.S. security forces and allow for the U.S. to exercise jurisdiction. Use of force is possible under these agreements “in strict accordance with the applicable laws and policies of the Party conducting the boarding and with applicable international law.”41

36 Id. 37 Proliferation Security Initiative: Statement of Interdiction Principles, September 4, 2003, Principle 2. 38 Id. at Principle 4(b) and (d). 39 Id. at Principle 4(c). 40 See e.g. Proliferation Security Initiative Ship Boarding Agreement with Malta (signed March 15, 2007) (entered into force December 19, 2007), available at https://2009–2017 .state.gov/t/isn/trty/81883.htm. 41 Id .

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3.4 Enforcement against Illegal Extraction of Living Marine Resources The noaa Fisheries Office of Law Enforcement (ole) with the support of the Coast Guard enforces domestic laws and international treaties to protect fisheries over 3.36 million square miles of ocean and over 95,000 miles of U.S. coastline. To assist the noaa Fisheries ole with its work, the federal government has signed 28 joint enforcement agreements that permit U.S. states and U.S. territories to enforce federal law. The primary laws enforced by the office include the Magnuson-Stevens Fishery Conservation and Management Act,42 Marine Mammal Protection Act,43 Endangered Species Act,44 and the Lacey Act.45 The Coast Guard is the chief agency responsible for ensuring that foreign fishing vessels do not operate illegally in waters under U.S. jurisdiction. The Coast Guard has seized vessels and detained crew illegally fishing in U.S. waters without authorization. Focused on border regions, the Coast Guard is a major player in enforcing U.S. fisheries laws in areas such as the Gulf of Mexico.46 The Coast Guard is also the chief agency for enforcing international treaties that the U.S. is a party to both inside and outside of U.S. waters. For example, the Coast Guard enforces the 1992 ban on fishing with drift nets on the high seas. In 2000 and after a 1000 mile chase, the Coast Guard intercepted on the high seas the foreign-flagged Arctic Wind that had been towing a five mile long drift net through Alaskan and high seas waters.47 The Coast Guard when it operated as the Revenue Cutter Service also took unilateral measures to protect marine resources that were threatened by the overexploitation. Charged with ending pelagic seal hunting and protecting seal herds in the Pribilof Islands, from 1874 to 1913, the Revenue Cutter Service regularly undertook successful anti-poaching missions.48

42 16 U.S.C. § 1801 et. seq. 43 16 U.S.C. § 1361 et. seq. 44 16 U.S.C. § 1531 et. seq. 45 16 U.S.C. § 3371 et. seq. 46 Coast Guard News, Coast Guard interdicts lancha crew illegally fishing in U.S. (September 17, 2017) (Describing how the Coast Guard has detected 144 lanchas [small Mexican fishing vessels] and interdicted 31 of the vessels found north of the U.S./Mexico Maritime Border since October 1, 2016.) 47 Roberto Suro, Fishing Boat Held After Chase, the washington post, May 11, 2000, available at https://www.washingtonpost.com/archive/politics/2000/05/11/fishing-boat-held -after-chase/48958212-98a6-4aea-94d2-17f394d6dd6e/?utm_term=.5b9a43d9a5c3. 48 Coast Guard News, A Legacy of Maritime Law Enforcement, December 4, 2007, available at http://coastguardnews.com/a-legacy-of-maritime-law-enforcement/2007/12/04/.

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In 2016, the United States became a party to the Agreement on Port State Measures to Prevent, Deter, and Eliminate iuu Fishing.49 Parties to the agreement are obliged to designate ports where fish can be offloaded and to undertake port inspections of vessels suspected of iuu fishing or fishing related activity supporting iuu fishing. The U.S. has implemented the treaty into domestic law.50 The Coast Guard and noaa are responsible for ensuring enforcement of the Port State Measures Act.51 Penalties for failing to comply include fines, forfeiture of convicted vessel including its gear and its fish cargo, and possible criminal penalties for illegal acts committed knowingly.52 While the Coast Guard is not involved in enforcing foreign laws as part of its mission to protect against illegal harvesting, the enforcement of the Lacey Act through Department of Justice prosecutions is notable as another example of the reach of the long arm of U.S. enforcement law. Under this Statute, both U.S. citizens and foreign nationals attempting to trade illegal fish products in the U.S. may be prosecuted not just for violating U.S. fisheries laws but fisheries laws from other States.53 For example, two fishermen were fined $100,000 and put on probation for five years for violations of the Lacey Act resulting from falsifying records on landing permits for halibut worth $23,000.54

3.5 Enforcement to Protect the Marine Environment from Spills The Coast Guard is an on-scene coordinator for oil and chemical spills in U.S. marine waters. In addition to executing clean up plans, the Coast Guard is responsible for monitoring of oil and chemical discharge from vessels and plat- forms, enforcing ballast water regulations, and ensuring that commercial vessels operating within U.S. waters meet U.S. environmental safety standards.55 The Coast Guard has the power to issue civil and criminal penalties for marine polluters as part of its enforcement powers.56 After the catastrophic Exxon Valdez spill released 11 million gallons of crude oil into Prince William Sound in Alaska, Congress extended the Coast Guard’s enforcement powers under the Oil Pollution Act of 1990 to include enforcing a standard of double-hulling in

49 Agreement on Port State Measures to prevent, deter and eliminate illegal, unreported and unregulated fishing, Rome, 2009, U.N.T.S. 54133, (entered into force June 5, 2016). 50 16 U.S.C. §§ 7401–7409. 51 16 U.S.C. § 7407 (Referencing 16 U.S.C. § 1861(a)). 52 Id. at 7407(b), (c), and (d). 53 16 U.S.C § 3371–3378 (One of the U.S.’s oldest federal wildlife protection laws). 54 Annual Report Fiscal Year 2016, U.S. Department of Commerce, noaa Fisheries, Office of Law Enforcement. 55 Diana Sherbs, The Long Blue Line: The Coast Guard’s Environmental Protection Mission, coast guard compass, September 21, 2017. 56 33 U.S.C. §§ 2701–2761.

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U.S. waters that was not yet universal in the global tanker fleets.57 Enforcement of these standards became one of the Coast Guard’s largest enforcement missions. The Coast Guard administers the Oil Spill Liability Trust Fund that allows for the payment of up to $1 billion per incident for oil removal and uncompen- sated damages.

3.6 Enforcement Efforts to Prevent Accidents or Collision at Sea The U.S. is a party to the 1972 Convention on the International Regulations for Preventing Collisions at Sea (colreg). The Convention has been codified into U.S. law.58 The Coast Guard has created implementing regulations.59 The Coast Guard is responsible for enforcing the Rules of the Road against all public and private vessels subject to the jurisdiction of the US while upon the high seas and any vessels operating on waters subject to the jurisdiction of the U.S.60 The U.S. mandates compliance with the colreg by U.S. flagged vessels operating in the territorial waters of a foreign State unless there is a conflict between foreign law and the Convention.61 The United States Code includes a variety of other vessel-related crimes that would be subject to maritime law enforcement to prevent accidents or collisions at sea. For example, an owner of a vessel may not destroy his vessel and no other person may conspire to destroy a vessel on the high seas or within the United States with the intent of collecting insurance proceeds.62 No person may intentionally cause damage to a ship that is likely to impair safe navigation.63 On the basis of implementing U.S. obligations under the Convention for Suppression of Unlawful Acts Against Maritime Navigation (sua Convention), the U.S. has the authority to assert law enforcement jurisdiction over non- nationals alleged to have committed certain violent acts at sea that endanger the safe navigation of a ship. In 2008, the United States brought a case against the former cook of a Seychelles flagged vessel who murdered the captain and first mate of the Taiwanese owned Full Means II in international waters off the

57 46 U.S.C. § 3703a. 58 33 U.S.C. §§ 1601–1608. 59 33 U.S.C. § 1607; 33 C.F.R. Part 81 and 82; Department of Homeland Security, U.S. Coast Guard, Navigation Rules and Regulation Handbook (2014), available at https:// navcen.uscg.gov/pdf/navRules/navrules.pdf. 60 33 U.S.C. § 1603. 61 33 U.S.C. § 1604(b). 62 18 U.S.C. § 2271–2272. 63 18 U.S.C. § 2280.

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 211 coast of Hawaii after the captain demoted the cook to a deckhand.64 The Coast Guard intercepted the ship 60 miles off Hawaii and arrested Mr. Lei Shi for violent acts that had endangered safe navigation.65 He was sentenced to 36 years in prison and his appeal failed because the court observed that 18 U.S.C. § 2280 implemented the U.S. obligations under the sua convention and any party to the convention could prosecute an act violating the convention.66

3.7 Customs and Illegal Immigration Enforcement The Coast Guard has long been involved with customs efforts in its historic role as the Cutter Service. As Alexander Hamilton wrote to the commanding officers of the Revenue Cutters in his capacity as Secretary of the Treasury, “Revenue Cutter officers are considered officers of the Customs…. You have examination authority, and it will be your duty to seize vessels and goods, when appropriate, for violation of Revenue laws.”67 The Revenue Cutters, the forerunners of the Coast Guard were charged by Congress in 1862 with interdicting illegal migrants.68 The contemporary Coast Guard continues these two missions as part of its homeland security strategies in cooperation with the U.S. Customs and Border Patrol and the Immigration and Customs Enforcement group. The Coast Guard is expected to enforce U.S. immigration policy by interdicting unauthorized migrants as far from the shores of the U.S. as possible.69 As the Coast Guard indicated in its Western Hemisphere Strategy, “As a lead Federal agency for maritime law enforcement, the Coast Guard prioritizes secure borders that protect our Nation from those who would enter illegally by sea.”70 The Coast Guard’s missions are a combination of law enforcement and search and rescue humanitarian missions because many of the unauthorized migrants are found in unseaworthy and dangerous vessels. Based on Office of Legal Counsel opinions, the Coast Guard has taken the position that migrants interdicted in international waters, territorial waters, and internal waters are not necessarily entitled to protection under the Refugee Convention.71

64 U.S. v. Shi, 396 F. Supp. 2d 1132 (D. Haw. 2005). 65 18 U.S.C. § 2280. 66 U.S. v. Shi, 525 F.3d 709 (9th Cir. 2008). 67 Doctrine for the U.S. Coast Guard, supra note 7. 68 Act of 19 February 1862 (12 Stat. L., 340, 341). 69 See e.g. Executive Order 12807, May 24, 1992, 57 Fed. Reg. 23133 (June 1, 1992). 70 U.S. Coast Guard Western Hemisphere Strategy, (September 2014) at 11, available at http://www.overview.uscg.mil/Portals/6/Documents/PDF/CG_West_Hemisphere_ Strategy.pdf?ver=2016-10-13-123053-130. 71 Rights of Aliens Found in US Internal Waters, Memorandum from Office of Legal Coun- sel, US Department of Justice (November 21, 1996); Immigration Consequences of

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3.8 Drug-Trafficking Enforcement In 1890, the Cutter Service performed its first drug seizure when a vessel in the Straits of Juan de Fuca near off the coast of Washington state seized opium from a U.S. flagged steamer.72 In the 1920s, the Coast Guard’s maritime law enforcement missions included apprehending liquor smuggling that was out- lawed during Prohibition.73 Interdiction of illegal narcotics continues to be a major activity for the U.S. Coast Guard. More recently the Coast Guard has been involved in interdiction efforts to prevent illegal narcotics from even reaching the U.S. coastline. The Coast Guard has been involved in a search and seizures on vessels including the largest seizure in history of a Panamanian- flagged vessel 20 kilometers of the coast of Isla de Colba, Panama carrying 42,845 of cocaine74 Even though in the early history of the United States, there was no explicit statutory authority for the Coast Guard to seize U.S. domestic vessels on the high seas for violations of the law, Justice Brandeis and Justice Holmes, two of America’s leading jurists, concluded that the Coast Guard can be inferred to have implied authority to seize American vessels as part of its police duties.75 The U.S. Congress later explicitly provided that the Coast Guard had authority to board American vessels on the high seas on the basis of suspected customs and narcotics violations.76 Later courts decided that the U.S. can also conduct drug enforcement activities against U.S. ships in foreign waters as long as there is no violation of sovereignty of the foreign state.77

Undocumented Aliens’ Arrival in United States Territorial Waters, Memorandum from Office of Legal Counsel, US Department of Justice (October 13, 1993). 72 A Legacy of Maritime Law Enforcement, supra note 48. 73 Id. (Detailing the “Rum War’s most “spectacular seizure” and the most dangerous seizure). 74 Id. 75 Maul v. United States, 274 U.S. 501, 512 (1927). 76 14 U.S.C § 89(a) (“The Coast Guard may make inquiries, examinations, inspections, searchers, seizures and arrests upon the high seas and waters over which the United States has jurisdiction, for the prevention, detection and suppression of violations of laws of the United States … When from such inquiries, examination, inspection, or search it appears that a breach of the laws of the United States rendering a person liable to arrest is being, or has been committed, by any person, such person shall be arrested…; or, if it shall appear that breach of the laws of the United States has been committed so as to render such vessel, or the merchandise, or any part thereof, on board of, or brought into the United States by, such vessel, liable to forfeiture … such vessel or such merchandise, or both, shall be seized.”). 77 United States v. Conroy and Walker, 589 F.2d 1258 (5th Cir. 1979) (Finding that the US Coast Guard could board a vessel that was in Haitian waters particularly because the Haitian government gave oral and written confirmation to allow Coast Guard pursuit into Hai- tian waters. Defendants argued that their Fourth Amendment rights to be protected from

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The U.S. Coast Guard operates under two laws to conduct drug interdictions of non-U.S. flagged vessels. The Drug Trafficking Vessel Interdiction Act of 2008 provides that “whoever knowingly operates, or attempts or conspires to operate, by any means, or embarks in any submersible vessel or semi- submersible vessel that is without nationality and that is navigating or has navigated into, through, or from waters beyond the outer limit of the territorial sea of a single country or a lateral limit of that country’s territorial sea with an adjacent country, with the intent to evade detection, shall be fined under this title, imprisoned not more than 15 years, or both.”78 This law was passed to deter smugglers who were using self-propelled semi-submersible vessel, some of which were capable of travelling up to 3000 miles without refueling, to deliver drugs to other vessels that would transport them to land. Almost all of these semi-submersible vessels are “stateless” and responsible for at least 32% of all cocaine trafficking from Columbia to the United States.79 Extraterritorial reach under this law by U.S. agents is essential if this law was to be effective. Recent cases have enforced this act. For example, in U.S. v Saac,80 defendants were convicted after being found on a stateless semi-submersible in international waters. Most historical enforcement activity has taken place under the Maritime Drug Law Enforcement Act (mdlea) that extended U.S. jurisdiction to any vessels with a connection to the United States plus “any foreign vessels on the high seas” and any vessels operating within waters characterized as territorial seas under the Law of the Sea Convention, as long as there is consent from the flag State.81 This act was deemed to be within the powers of Congress pursu- ant to Article i, Sec. 8 § 10 of the Constitution to “define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations”.82 The constitutionality of this act has been recently challenged in the appellate case U.S. v. Bellaizac-Hurtado where the Panamanian law enforcement arrested Colombian citizens in the territorial sea of Panama for drug trafficking and transported them to the US for prosecution under the mdlea.83 In this decision, the 11th Circuit decided that the act violated U.S. constitutional

unreasonable searches was violated but the court disagreed in light of legislative history of Coast Guard powers.). 78 18 USC § 2285. 79 Douglas Kash and Eli White, “A New Law Encounters the Semi-submersible Smuggling Threat” FBI Law Enforcement Bulletin (March 2010). 80 U.S. v Saac, 632 F.3d 1203 (11th Cir.2011). 81 46 U.S.C. § 70502(c)(1)(C). 82 U.S. Constitution, Article i. 83 U.S. v. Bellaizac-Hurtado, 700 F. 3d 1245 (11th Cir. 2012).

korean journal of international and comparativeDownloaded law from6 (2018) Brill.com09/29/2021 199–218 07:26:07AM via free access 214 Telesetsky law because the arrest did not take place on the “high seas”. The court’s decision arguably reflected a lack of deference to the Panamanian authorities who acted under a bilateral drug interdiction treaty between the United States and Panama designed to mutually protect both States from drug trafficking activities. Since this decision, the Maritime Drug Law Enforcement Act has only been applied to activities in waters that would be classified as international waters.84 The U.S. Coast Guard has worked around the hurdle presented by the Bellaizac-Hurtado case. In a recent mdlea case, United States v. Mosquera- Murillo, Colombian defendants were convicted under the mdlea even though they were not on board the vessel when it was interdicted.85 On June 19, 2012, the U.S. Coast Guard intercepted a go-fast drug trafficking vessel called the “Mistby” on the high seas, approximately 70 nautical miles Southeast of Punta Mariato, Panama. While Colombian defendants were not on board the boat at the time of the boat seizure, they were charged with a violation of the Maritime Drug Law Enforcement Act an offense that carries a mandatory minimum sentence of ten years of incarceration and a maximum penalty of life imprisonment. In this case, the mdlea was triggered by Colombia consenting under its 1997 Narcotic Drugs Shiprider Agreement Between the U.S. and Colombia. The U.S. Coast Guard’s drug interdictions are often the product of interagency cooperation especially with the Navy. For example in 2016, the U.S. Coast Guard seized a narco-submarine carrying 5,600 pounds of cocaine across the Pacific Ocean after it had been spotted by a U.S. Navy patrol aircraft.86

4 Bilateral and Multilateral Cooperation and Challenges

In addition to the Proliferation Security Initiative agreements described ear- lier, the U.S. has a number of bilateral boarding agreements focused on the protection of living marine resources.87 In 2016, the U.S. was involved in

84 See e.g. U.S. v. Macia, 654 Fed. Appx. 457 (11th Cir. 2016) (Prosecuting Ecuadorian drug traffickers on a “stateless boat 206 nautical miles off the Galapagos Islands). 85 United States v. Mosquera-Murillo 153 F. Supp. 3d 130 (D.C. Dist. Court December 14, 2015). 86 Christopher Woody, Watch the US Coast Guard seize a narco sub laden with more than 5,600 pounds of cocaine, November 1, 2016, (Describing how 80% of the illegal drugs that reach the U.S. market are brought by maritime routes with 30% brought by narco-subs). Available at https://www.businessinsider.com/us-coast-guard-seize-narco-submarine -cocaine-pacific-ocean-2016-10#tkSb3p8BmWLhqrSM.99. 87 In 2016, there were agreements with the Peoples’ Republic of China, Bahamas, Palau, Micronesia, Marshall Islands, Kiribati, Tonga, Cook Islands, Tuvalu, Samoa, the North Atlantic Fisheries Organisation, Senegal, Cape Verde, Sierra Leone, Gambia, US/CA

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96 boardings for alleged violations of illegal fishing. Twenty of these boardings found violation.88 The U.S. also has concluded a number of bilateral treaties particularly with Caribbean, Central American, and South Americans states to combat drug trafficking. As of 2017, the U.S. had 40 maritime counterdrug bilateral agreements in place.89 Under the 2014 U.S. Counter Piracy and Maritime Security Action Plan, the United States seeks to collaborate with other States, international organizations, regional organizations, industry organizations, and non-governmental organizations to improve enforcement efforts against pirates particularly in the Horn of Africa and Gulf of Guinea region.90 In the Horn of Africa region, U.S. Navy and Coast Guard forces provide an “interdiction-capable presence” designed to respond to pirate attacks and terminate piracy acts.91 Under its global plan, the U.S. intends to strengthen its prosecutions of “piracy-related criminal enterprises” including groups and individuals who provide financing or other negotiations. This requires U.S. maritime enforcement efforts to reach across traditional maritime zones to land-based activities. For example, in the Horn of Africa region, the U.S. acting under the authority of the UN Security Council has prioritized the dismantling of shore-based pirate bases “to the full- est extent permitted by U.S. and international law.”92 Law enforcement capacity is weak in a number of areas where piracy is common. To address inadequate maritime law enforcement, the U.S. has been underwriting an African Maritime Law Enforcement Partnership to improve capacity in the region to support various States to respond to piracy and other maritime crimes.93 Under this partnership, the U.S. has transferred former

Albacore, Western Central Pacific Fisheries Commission, Nauru, Inter-American Tropical Tuna Commission, and Vanuatu. 88 Jay Caputo, Council Brief, May 2017, available at http://www.nmfs.noaa.gov/sfa/manage ment/councils/ccc/2017/may/tab-m-uscg-presentation.pdf. 89 U.S. Department of State, March 2017 International Narcotics Control Strategy Report, Vol. 1, at 45. (One of the earliest treaties that the U.S. concluded was a 1981 U.S.-UK agreement permitting the U.S. to search UK vessels for drugs destined for unlawful importa- tion into the United States. If drugs were found, a vessel could be seized and potentially forfeited.) 90 U.S. Counter Piracy and Maritime Security Action Plan, available at https://www.state .gov/t/pm/rls/othr/misc/255332.htm. 91 Id . at Annex A-Framework for Combating Piracy and Enhancing Maritime Security off the Horn of Africa. 92 Id. 93 African Maritime Law Enforcement Partnership. As of 2014, maritime security had been strengthened off the coast of Senegal, The Gambia, and Cabo Verde. Future projects are intended for priority regions including Ghana, Togo, Benin, and Nigeria.

korean journal of international and comparativeDownloaded law from6 (2018) Brill.com09/29/2021 199–218 07:26:07AM via free access 216 Telesetsky coast guard ships to African States to assist with their counter-piracy efforts.94 As part of this effort, a joint U.S. Navy and Ghanaian navy force worked together in February 2016 to locate, identify, and seize a pirated vessel that was transiting the Ghanaian exclusive economic zone.95 The challenge with this type of cooperation is the need for governments to recognize that these types of regional security relationships require long-term investments by states that have not just the surplus equipment but also the human resources to transfer enforcement skills. The Coast Guard has some presence in each of the world’s oceans. As part of its maritime enforcement presence, the Coast Guard also has a number of permanent international units. Based in Manama, Bahrain, Patrol Forces Southwest Asia is the Coast Guard’s largest international unit outside of the U.S. with six cutters operating to support maritime security objectives. The Coast Guard also operates two other groups called “Activities Europe” and “Activities Far East.” The “Activities Europe” group also known as acteur emerged in the 1960s in London to contribute to coordinate Long Range Navigation stations in Europe.96 acteur’s role in Long-Range Navigation diminished in the 1990s and the organization moved to the Netherlands where it conducts regional maritime inspections across Europe and Africa as well as maritime security initiatives particularly off the coast of Africa.97 The Coast Guard’s International Port Security Liaison Officers under the U.S. Maritime Transportation Security Act implement the International Maritime Organization’s “International Ship and Port Facility Code.” (ispf)98 In cooperation with port States who have not fully implemented the ispf, the U.S. assists other states with improving port

94 Cambiaso Risso Group, West Africa Piracy Case Highlights U.S. Capacity Building Efforts, March 15, 2016, noting that the Nigerian special forces were able to recapture a vessel from pirates 300 miles off the coast of Nigeria through a combination of information provided by other maritime law enforcement partners including Ghana, Togo, and Benin and the ability to deploy a former U.S. coast guard cutter that had been donated to Nige- ria to support regional enforcement efforts. Available at http://www.cambiasorisso.com/ west-africa-piracy-case-highlights-u-s-capacity-building-efforts/. 95 United States Navy, Ghana, US Conclude Africa Maritime Law Enforcement Operations, February 16, 2016, available at http://www.navy.mil/submit/display.asp?story_id=93125. 96 United States Coast Guard Atlantic Area, Activities Europe, Unit History, available at http://www.atlanticarea.uscg.mil/Atlantic-Area/Units/Area-Units/Activities-Europe/ Unit-History/. 97 United States Coast Guard Atlantic Area, Activities Europe, Area of Responsibility, available at http://www.atlanticarea.uscg.mil/Atlantic-Area/Units/Area-Units/Activities -Europe/Area-of-Responsibility/. 98 33 C.F.R. §§ 101–107.

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 217 security efforts designed to combat terrorism and prevent economic crimes including illegal trade in goods. The U.S. Coast Guard has been engaged in the Asia-Pacific region for almost seventy years. In 1947, the Coast Guard supported General Douglas MacArthur in his role as Supreme Commander of the Allied Forces in establishing the Japanese Maritime Safety Agency that later became the Japan Coast Guard. In the 1970s until the early 1980s, the Coast Guard had marine inspection offices in Kobe, Japan; Yokohoma, Japan; and Singapore to inspect U.S. flagged Asia- based vessels for compliance with safety standards and foreign-flagged tankers destined for U.S. ports. Created in 1994, Activities Far East also known as feact or Far East Marine Inspection Office is based in Yokota, Japan and focuses on maritime safety and security within the Asian-Pacific region. feact continues the work of former Coast Guard offices including undertaking marine inspections of U.S. flagged commercial vessels and conducting port state inspections of high-risk vessels such as oil and chemical tankers destined for U.S. ports. In addition, feact like the acteur group assists with the implementation of the isps by facilitating bilateral information exchange with 47 states and territories in the region.99 The U.S. Coast Guard and U.S. Navy have also been partnering since 2013 with a number of South Pacific nations in the Oceania Maritime Security Initiative. Under this Initiative, U.S. Coast Guard law enforcement officers partner with national maritime law enforcement officers on board U.S. navy ships crossing national eezs in order to conduct at-sea boardings of vessels suspected of iuu fishing or other transnational crimes. These joint missions undertake joint law enforcement with the nine Pacific island States that have ship rider agreements with the U.S.100

5 Some Final Thoughts on the Long-Arm of U.S. Maritime Enforcement Law

This brief summary of State practice highlights the significant role played by the U.S. Coast Guard as well as the U.S. Navy in enforcing laws across the

99 U.S. Coast Guard, Pacific Area Home, feact, Core Mission Set, available at http://www .pacificarea.uscg.mil/Our-Organization/District-14/D14-Units/Activities-Far-East -FEACT/FEACT-Core-Mission-Set/. 100 Scott Carr, Coast Guard, Navy Complete Joint Fisheries Patrol in Oceania, Promote Re- gional Stability, December 20, 2016, available at http://www.pacom.mil/Media/News/ News-Article-View/Article/1035124/coast-guard-navy-complete-joint-fisheries-patrol-in -oceania-promote-regional-st/.

korean journal of international and comparativeDownloaded law from6 (2018) Brill.com09/29/2021 199–218 07:26:07AM via free access 218 Telesetsky oceans. Given the nature of global crimes, the ability to enforce criminal laws across maritime zones is essential to combat drug trafficking, piracy, iuu fishing, and other significant crimes with a nexus to the ocean. While there are certain constitutional limitations to the reach of U.S. maritime enforcement, the examples of state practice described above suggest a concerted effort on the part of the United States. and particularly the U.S. Coast Guard to be able to extend its jurisdictional reach to prevent criminal activity that could impact the United States. The success of these long-arm efforts depends increasingly on fostering good relationships with other States enabling agreements such as the ship rider agreements or the sharing of critical intelligence. Because maritime enforcement actions are an integral part of U.S. border security, the U.S. will continue to seek legal avenues for extending its reach across oceans to tackle the illegal trafficking of weapons, drugs, fish and people. In order to facilitate this work, the U.S. is likely to continue investing in efforts to create bilateral and multilateral treaties authorizing joint enforcement efforts. To improve its enforcement capacities, the Coast Guard continues to pursue efforts to support the U.S. membership in the U.N. Convention on the Law of the Sea. As the Coast Guard leadership commented in its ten-year Western Hemisphere Strategy, “U.S. accession to the Convention would strengthen, enhance, and facilitate the Coast Guard’s ability to protect those on the sea, protect the Nation from threats by the sea, and protect the sea itself.”101 In spite of the U.S. security interests, congressional politics continues to interfere with the United States’ ability to more fully collaborate with other coastal nations in achieving the Coast Guard’s aims for secure nations, prosperous markets, and thriving oceans.102

101 U.S. Coast Guard Western Hemisphere Strategy, supra note 70 at 51. 102 Id. at 55.

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