Vienna International Centre, P.O. Box 500, A-1400 Vienna, Austria Tel: (+43-1) 26060-0, Fax: (+43-1) 26060-5866, www.unodc.org PRACTICAL GUIDE – FOR COMPETENT NATIONAL AUTHORITIES PRACTICAL GUIDE for competent national authorities under article 17 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988 Printed in Austria V.03-87812–January 2004–200 UNITED NATIONS OFFICE ON DRUGS AND CRIME Vienna PRACTICAL GUIDE for competent national authorities under article 17 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988 UNITED NATIONS New York, 2004 The designations employed and the presentation of the material in this publi- cation 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 the delimitation of any frontiers or boundaries. iii CONTENTS Page Part one. The Competent National Authority I. INTRODUCTION . 1 II. THE 1988 CONVENTION APPROACH TO MARITIME COOPERATION . 3 III. ESTABLISHING THE APPROPRIATE DOMESTIC LEGISLATIVE FRAMEWORK . 7 IV. THE COMPETENT NATIONAL AUTHORITY . 11 Establishment of the competent national authority . 11 The 1988 Convention . 11 Location of the competent national authority . 11 Foundation in domestic law . 13 The competent national authority in practice . 14 Receiving requests . 14 Responding to requests . 21 Outgoing requests . 25 Special considerations: vessels without nationality and own-flag vessels . 26 Possible additional responsibilities . 28 Part two. Annexes I. Summary of the Practical Guide . 33 II. Model form of request . 45 III. Model form of response . 47 IV. Model form of report on action taken . 49 V. Glossary . 51 VI. United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988 (Extracts) . 55 VII. Commentary on the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988 (Extracts) . 61 VIII. United Nations Convention on the Law of the Sea of 1982 (Extracts) . 125 IX. Maritime Drug Law Enforcement Training Guide (Extracts) . 129 X. Examples of bilateral and multilateral agreements . 133 XI. Constructive presence, hot pursuit and use of force (Samples of recent judicial guidance) . 175 PART ONE The Competent National Authority 1 I. INTRODUCTION The present Practical Guide has been prepared pursuant to Commission on Narcotic Drugs1 resolution 44/6 to assist competent national authorities responsible for formulating and/or responding to requests under article 17 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 19882 (the 1988 Convention). A series of annexes has been included in the Guide, with the aim of providing step-by-step guidance on practical implementation, legal background and reference material. Among these are a summary of the Guide (annex I), model forms (annexes II, III and IV), a glossary of terminology (annex V) and relevant extracts from the 1988 Convention and its Commentary,3 as well as from the United Nations Convention on the Law of the Sea of 19824 (annexes VI, VII and VIII). In addition, examples of bilateral and multilateral agreements on cooperation in combating illicit drug traffic by sea (annex X), as well as examples of recent judicial decisions (annex XI), have been included as reference material. Annexes X and XI have not been translated. Under article 17 of the United Nations Convention,5 parties are required, inter alia, to “cooperate to the fullest extent possible to suppress illicit traffic by sea, in conformity with the international law of the sea”. This mandate is consistent with article 1086 of the United Nations Convention on the Law of the Sea of 1982,7 which requires States to “cooperate in the suppression of illicit traffic in narcotic drugs and psychotropic substances engaged in by ships on the high seas 1Terms that appear for the first time in bold are defined in the glossary contained in annex V. 2Official Records of the United Nations Conference for the Adoption of a Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, Vienna, 25 November-20 December 1988, vol. I (United Nations publication, Sales No. E.94.XI.5). 3Commentary on the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988 (United Nations publication, Sales No. E.98.XI.5). 4Official Records of the Third United Nations Conference on the Law of the Sea, vol. XVII (United Nations publication, Sales No. E.84.V.3). 5The full text of article 17 of the 1988 Convention is reproduced in annex VI. 6The full text of article 108 of the Convention on the Law of the Sea is included in annex VIII. 7Not all Parties to the 1988 Convention are Parties also to the Convention on the Law of the Sea (1982). Participation in the latter, however, is not required for Parties to fully implement the provisions of article 17 of the 1988 Convention. References to the Convention on the Law of the Sea are included in the Guide as a resource for competent national authorities that may find them useful. 2 Practical Guide for Competent National Authorities contrary to international conventions”. Both Conventions thus recog- nize the need for effective international cooperation and coordination among States in combating illicit traffic of drugs by sea and obligate parties to take appropriate action. This need has been repeatedly emphasized by the Commission on Narcotic Drugs and was further stressed by the United Nations General Assembly at its twentieth special session, devoted to countering the world drug problem together, at which resolution S-20/4 C of 10 June 1998 on measures to promote judicial cooperation was adopted. Section VI of that resolution contains specific recommendations to counter illicit traffic of drugs by sea. Over the last decade, the United Nations International Drug Control Programme (UNDCP)8 has endeavoured to support and foster international cooperation in this respect. The Commission on Narcotic Drugs, by its resolution 9 (XXXVII), requested the Executive Director of the Programme to establish and convene a Working Group on Maritime Cooperation. The Working Group met in Vienna in September 1994 and February 1995 (see E/CN.7/1995/13) and recom- mended that UNDCP should develop a training guide for law enforce- ment officers. The recommendation was later endorsed by the Commission in its resolution 8 (XXXVIII) and the Training Guide was prepared and has now been widely disseminated. Relevant extracts from the Guide are reproduced in annex IX for ease of reference. Subsequent to the publication of the law enforcement Training Guide, UNDCP, in cooperation with interested Governments, convened an informal, open-ended working group on maritime cooperation (Vienna, 5-8 December 2000). Among the objectives of that meeting were to take stock of progress achieved to date, to assess the remaining challenges and to identify further concrete measures to strengthen inter- national cooperation (see UNDCP/2000/MAR.3). In the light of the report of the meeting, the Commission, in its resolution 44/6, requested UNDCP to provide technical assistance and suggested that such assistance might include: “The development of a user-friendly reference training guide to assist parties making requests and competent authorities who have the responsibility to receive and respond to requests under article 17 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988, bearing in mind the need to avoid undue effects on licit trade.” The present Practical Guide has been prepared on the basis of that request. 8Now fully integrated in the United Nations Office on Drugs and Crime (UNODC). 3 II. THE 1988 CONVENTION APPROACH TO MARITIME COOPERATION Because of the physical and technical difficulties inherent in interdiction of illicit maritime trafficking, shipment by sea allows large volumes of drugs to be transported at less risk for the traffickers. Drug traffickers have long resorted to the use of private and commercial vessels. In fact, sea-going craft appear to be the preferred means for illicit traffic in cocaine and are also widely used for cannabis. Maritime trafficking involves two distinct modus operandi: traffic in containers and traffic inside vessels built and used to hide drugs. In the first case, the owner, captain and crew of the vessel are generally not aware of the trafficking, while in the second case they actively participate in it. Measures to combat these types of trafficking differ. In the case of vessels carrying containers, most control measures can and must (save in highly exceptional circumstances) be taken in ports, since inspection of cargo and containers at sea is not generally feasible. In the second case, the traffickers may avoid established ports, requiring law enforce- ment measures to be carried out at sea. In this context, considerations of geography and of law enforcement practicality may result in the need to carry out counter-operations in maritime zones beyond the territorial sea. In spite of the obvious impact of drug smuggling by sea, interna- tional law in the past offered few specific provisions to regulate its sup- pression. Consequently, for the lawful interdiction of drug traffickers at sea beyond the territorial sea, States have been obliged to rely on hot pursuit and general criminal law enforcement concepts such as con- structive presence, which have been codified in article 111 of the Convention on the Law of the Sea and before that in article 23 of the 1958 Geneva Convention on the High Seas. It was only with the adoption of the 1988 Convention, and in par- ticular article 17 thereof, that real advances were made in providing guidelines for international cooperation in the interdiction of vessels 4 Practical Guide for Competent National Authorities trafficking outside the territorial sea of a State.