Maritime Crime: a Manual for Criminal Justice Practictioners
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Maritime Crime: A Manual for Criminal Justice Practictioners 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 New York, 2017 © United Nations, March 2017. 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. ACKNOWLEDGEMENTS This Manual was prepared for the United Nations Office on Drugs and Crime (UNODC) by Dr. Robert McLaughlin, a consultant engaged by the UNODC Global Maritime Crime Programme. Contributing to the development of the Manual were: William Anderson, UNODC Siri Bjune, UNODC Alan Cole, UNODC Phillip Drew, Australian National University Anthony Francis Tissa Fernando, Court of Appeal of Seychelles Douglas Guilfoyle, Monash University Wolff Heintschel von Heinegg, Public Law (International Law, European Law and ForeignConstitutional Law) Foundation, European University Viadrina Patricia Jimenez Kwast, University of Oxford Ali Kamal-Deen, CEMLAWS Africa Stuart Kaye, University of Wollongong Benoit Le Goaziou, UNODC David Letts, Australian National University Patrick J McGuire, United States. Coast Guard Andrew McLaughlin, UNODC Kaitlin Meredith, UNODC Cameron Moore, University of New England Izegaegbe Francis Omiunu Nigerian Maritime Administration and Safety Agency Efthymios Papastavridis, University of Oxford Wayne Clay Raabe, Narcotic and Dangerous Drug Section, Criminal Division, United States Department of Justice Donald Rothwell, Australian National University Giuseppe Sernia, UNODC Eric Promar Steinmyller, Shipping (Geneva) Security Operation Manager, Commissaire des armées (Marine) Tim Stephens, University of Sydney Gunnar Stolsvik, Norwegian national advisory group against organized fisheries crime Gisela Vieira, International Maritime Organization Mark Wallbridge, UNODC Brian Steven Wilson, Global Maritime Operational Threat Response (MOTR) Coordination Center, United States Department of Homeland Security Pauline Wilson, UNODC iii 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. Based around the globe, the staff of the Programme provide support in the fight against armed robbery at sea, piracy the smuggling of migrants by sea, fisheries crime, maritime drug trafficking and smuggling that funds terrorism. This Manual brings together the material that GMCP staff have been using to explain the legal framework that underpins UNODC work in the area of maritime crime. It sets out the legal regime that governs the various maritime zones and the legal basis for tackling some of the most serious maritime crimes. Finally, it provides advice on effective boarding, searching and evidence collection on vessels at sea. The Manual will be used as a training tool in capacity-building work carried out by GMCP, as well as serving as a useful guide for everyday criminal justice practitioners. UNODC hopes that all criminal justice professionals, including prosecutors, investigators and those who enforce the law at sea, will find the Manual a valuable resource. Alan Cole Head, Global Maritime Crime Programme v CONTENTS Preface iii 1. What law applies at sea? 1 2. How maritime zones are measured 15 Maritime zones and powers: internal waters, territorial sea 3. and archipelagic waters 25 Maritime zones and powers: contiguous zone, exclusive economic 4. zone and high seas 37 5. Maritime law enforcement 49 6. The maritime crime of piracy 69 The maritime crime of illicit traffic in narcotic drugs and psychotropic 7. substances by sea 83 8. Conducting boarding, search and seizure operations 93 9. Searching for and collecting evidence at sea 107 vii 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.