The Illicit Trafficking of Drugs (Efthymios Papastavridis)
THE ILLICIT TRAFFICKING OF DRUGS
Efthymios Papastavridis
15.1 Introduction
Illicit traffic in narcotic drugs and psychotropic substances has attained great prominence in the last decades of the 20th century and has been the subject of various international legislative and enforcement measures. The most important UN Conventions that are in force concerning the fight against drugs are the following: firstly, the 1961 Single Convention on Narcotics Drugs, which replaced all the previous relevant conventions;1 secondly, the 1971 Convention on Psychotropic Substances, which was established as a companion instrument of the 1961 Convention, since it deals with psychotropic substances next to narcotic drugs;2 lastly, the Vienna Drug Trafficking Convention, which was designed to deal specifically with the growing problem of international trafficking, which the earlier instruments only tackled in a marginal fashion.3 In that Convention, the contracting parties are called upon to criminalize the illicit traffic in narcotic drugs, that is,
the production, manufacture, extraction; preparation, offering, offering for sale, distribution, sale, delivery on any terms whatsoever, brokerage, dispatch, dispatch in transit, transport, importation or exportation of any narcotic drug or any psychotropic substance contrary to the provisions of the 1961 Convention, the 1961 Convention as amended or the 1971 Convention.4
Although a wide variety of methods are utilized by drug traffickers in plying their trade, the use of private and commercial vessels has long been significant. This is particularly the case with drugs such as cocaine, opium, and its derivatives, and cannabis, where transportation from source to consumer country frequently involves passage over ocean areas.5 For example, given its relatively high volume and low cost, the vast majority of marijuana and cocaine entering the US from abroad is said to be transported by private vessels.6 As reported by the UN Office on Drugs and Crime (UNODC),
[f]or the North American market, cocaine is typically transported from Colombia to Mexico or Central America by sea and then onwards by land to the United States and Canada. Cocaine is trafficked to Europe mostly by sea, often in container shipments. Colombia remains the main source of the cocaine found in Europe, but direct shipments from Peru and the Plurinational State of Bolivia are far more common than in the United States market.7
Extremely interesting are the findings for the increase of maritime drug trafficking in Africa. In the 2013 World Drug Report, published by UNODC, it was reported that
given the large quantities of licit substances that make their way across oceans and continents every day, in containers and even small boats, maritime trafficking poses a particularly knotty challenge for the authorities. East and West Africa seem to be gaining in prominence with regard to routes for maritime trafficking. A new maritime route going southwards from Afghanistan via ports in the Islamic Republic of Iran or Pakistan is increasingly being used by traffickers to reach consumer markets through East and West African ports. Since 2009, seizures of heroin have risen sharply in Africa, especially in East Africa, where they increased almost 10-fold.8
Also, the means employed by the drug-traffickers have become highly sophisticated: apart from ‘go-fast’ vessels,9 drug-traffickers in Central America use semi-submersible vessels, which are almost impossible to be properly stopped and visited.10 Such vessels are ‘both difficult for the Coast Guard to detect and easy for crew members, who often prefer losing their cargo to being caught, to sink. At the first sign of the Coast Guard, drug traffickers can quickly sink the vessel and jump into the ocean, which destroys the evidence necessary to prosecute them for a drug offense … ’.11
This traffic by sea has led to various initiatives taken by States most affected, such as the USA and European countries. Central to this has been the policy of interception of vessels not only in the territorial waters of the consumer States, but also on the high seas and even further, in the territorial waters of the source or transit States. This policy has been effectuated either through informal means, that is ad hoc consent of the flag State or of the vessel’s master (consensual boarding), or through bilateral and multilateral treaties, such as the Caribbean ship rider agreements12 and the Vienna Drug Trafficking Convention. Such maritime interceptions can be proven especially effective, albeit they are not very common. According to World Drug Report,
[e]xperience has shown that a maritime seizure is consistently more likely to be larger than a seizure involving transport by road or rail. In fact, although maritime seizures constitute no more than 11 per cent of all cases across all drug categories globally, each maritime seizure was on average almost 30 times larger than seized consignments trafficked by air. Targeted interdiction efforts by the authorities would enable them to seize larger quantities of drugs trafficked by water.13
The purpose of this chapter is to canvass the legal regime governing the fight against illicit trafficking in narcotic drugs by sea. In particular, the chapter will firstly explore the legal bases for drug interdiction operations at sea, both on multilateral and unilateral levels; in more detail, the analysis will commence with the UN Convention on the Law of the Sea, which does, albeit scarcely, provide for the suppression of drug trafficking. Then, the focus will shift to the Vienna Drug Trafficking Convention and the other multilateral instruments, which set out the legal framework for interception operations and for the assertion of enforcement jurisdiction over the relevant crimes. This will be followed by the analysis of the respective bilateral arrangements especially in the Caribbean basin. In addition, all possible justifications under customary law, especially instances of ad hoc consent for drug-trafficking interdiction, will be canvassed.
15.2 Multilateral Treaty Law Bases for Interdiction of Drug Trafficking Vessels
15.2.1The United Nations Convention on the Law of the Sea
The point of departure for assessing the legal contours of drug trafficking at sea is necessarily the United Nations Convention on the Law of the Sea 1982 (UNCLOS).14 The UNCLOS scarcely refers to illicit drug trafficking at sea. Indeed, the only explicit authorization to States, in particular coastal States, to enforce their jurisdiction over vessels engaged in drug trafficking is in Article 27 UNCLOS, which sets out that the criminal jurisdiction of the coastal State ‘should not’ be exercised on board a foreign vessel passing through the territorial sea, save only ‘if such measures are necessary for the suppression of illicit traffic in narcotic drugs or psychotropic substances’.15
In addition, given, obviously, that drug trafficking falls under the customs regulations of the coastal State, the latter may also prevent or suppress their infringement both within its contiguous zone. Under Article 33 UNCLOS, the coastal State may exercise the control necessary to: (a) prevent infringement of its customs, fiscal, immigration, or sanitary laws and regulations within its territory or territorial sea; (b) punish infringement of the above laws and regulations committed within its territory or territorial sea.
Accordingly, coastal States may apprehend in the contiguous zone the outward ships that have committed the relevant offence within the territorial sea. Insofar as the inward ships are concerned, there seems to be a watershed difference, which is that typically there has been no violation of the municipal laws of the coastal State.16 Thus, any assertion of jurisdiction, both prescriptive and enforcement, would have to be premised upon other international agreements, such as the Vienna Drug Trafficking Convention, which applies beyond the territorial waters, including the contiguous zone.
Similarly, enforcement powers are granted to coastal States with regard to such activities occurring on artificial islands or other installations pursuant to Article 60 (2) UNCLOS, which states that: ‘[t]he coastal State shall have exclusive jurisdiction over such artificial islands, installations and structures, including jurisdiction with regard to customs, fiscal, health, safety and immigration laws and regulations’.17
On the high seas, there is an explicit provision concerning drug trafficking, namely Article 108 that calls upon States to cooperate in its suppression.18 In more detail, paragraph 1 sets out a general obligation upon all States to cooperate, when the illicit traffic is ‘contrary to international conventions’. This obligation depends on the content of the above-mentioned Drug Conventions, that is, States should cooperate in the enforcement of these particular Conventions. More importantly, Article 108 (1) sets forth an obligation of conduct rather than result.19 On the other hand, paragraph 2 addresses the issue of providing assistance to suppress the traffic in question. Nevertheless, only the State ‘which has reasonable grounds for believing that the ship flying its flag is engaged in illicit traffic’ in such drugs or substances ‘may request the co-operation of other States to suppress such traffic’.20 As Sohn observes, ‘[t]he opposite case of a State asking for cooperation of a State whose ship is suspected of smuggling drugs to other countries is noticeably not mentioned’.21 Consequently, Article 108 falls short of providing any enforcement mechanism to complement the obligation to cooperate enshrined in paragraph 1.
More importantly, drug trafficking is missing from the list of the proscribed activities for which the right of visit on the high seas is acknowledged under Article 110 of the UNCLOS. This Article sets forth that the right to board and search a vessel on the high seas is accorded to warships against only those foreign-flagged vessels reasonably suspected of having engaged in certain proscribed activities. These activities are: a) piracy, b) slave trading, c) unauthorized broadcasting, d) absence of nationality of the ship, or e) though flying a foreign flag or refusing to show its flag, the ship is in reality of the same nationality as the warship.22
On the face of this provision, the only relevant heading under Article 110 of UNCLOS is the ‘absence of nationality’, since none of the other grounds, that is, piracy, slave trade, unauthorized broadcasting, and the same nationality would be applicable. Many drug traffickers operate in unregistered, stateless vessels, in which case Article 110 (1) (d) of UNCLOS applies. It is pursuant to this provision that warships or other duly authorized vessels of any State may exercise the right of visit on these vessels.
However, it is submitted that the right to visit stateless vessels does not ipso jure entail the right to seize the illicit cargo or exert any further enforcement jurisdiction over the persons on board the vessel. It is the view of the present author that the boarding States would have to rely on some positive basis of jurisdiction to exercise jurisdiction over persons and property on these vessels, since the statelessness itself would fall short of according them such jurisdiction. In any event, it would be in keeping with both the statelessness of the vessel and the nature of the illicit cargo aboard the delinquent vessel that the boarding State should have the right to escort the vessel to its ports and forfeit the illicit drugs cargo, as well as the vessel, provided, of course, that no other State makes any claim of nationality.23 It must be stressed here that on the face of Article 91 (1) of UNCLOS, the registration of the vessel is not a sine qua non prerequisite for the claim of nationality and thus an unregistered vessel—often a small sailing boat—may have the right to sail under the flag of a State and eventually be subject to its jurisdiction.24 If no relevant provision or any jurisdictional nexus grants the forum State jurisdiction to punish the master or the crew members, the State of nationality of the offenders should punish them in accordance with the well-established principle of nationality.25
This distinction between jurisdiction over the vessel and over the persons on board was also maintained before the Italian courts in the Fidelio case. In 1986 Italian naval units seized the Honduran vessel Fidelio on the high seas about eighty nm off the coast of Italy. Neither the captain nor any of the eleven crew members had Italian nationality and the Fidelio had not entered Italian territorial waters in any phase of the pursuit. In the proceeding brought against the drug smugglers, both the Tribunal and the Court of Appeal of Palermo held that Italian criminal jurisdiction could not apply to actions taking place beyond the territorial sea, and declared that Italian courts lacked jurisdiction in the matter.26 The Court of Cassation (decision of 1 February 1993) confirmed this and the twelve accused persons were released, even though they were smuggling six tons of cannabis. The drugs, by contrast, were confiscated and destroyed under the relevant provisions of the Italian legislation. This legislation applied in respect of the cargo (in rem), but not in respect of the persons on board (in personam).27
However, there is a case in which the statelessness of the vessel suffices not only for the boarding but also for the assertion of jurisdiction per se; this is the case of submersible or semi-submersible vessels, according to the Drug Trafficking Vessel Interdiction Act (DTVIA), adopted by the US Congress in 2008.28 The DTVIA purports to address the practical difficulties posed by the use of such vessels by criminalizing the operation of a submersible or semi-submersible vessel without nationality and with the intent to evade detection. Unlike other relevant laws, the DTVIA does not use a vessel’s statelessness solely as a jurisdictional hook, but makes the operation of a stateless vessel a key component of the substantive crime it proscribes.29 In United States v Ibarguen-Mosquera, the Eleventh Circuit upheld the DTVIA without noting any significant difference between the jurisdictional requirements of the DTVIA and of previous laws: in the words of the Court, ‘international law permits any nation to subject stateless vessels on the high seas to its jurisdiction … Jurisdiction exists solely as a consequence of the vessel’s status as stateless’.30 Notwithstanding this case, there is no warrant for such reading of statelessness as a separate and independent head of jurisdiction under international law.
Besides Article 27 in relation to drug trafficking in the territorial waters and the limited application of Articles 33 and 60 (2), UNCLOS falls short of according broad powers of enforcement in this regard. On the high seas, the absence of nationality of a vessel seems to be the only relevant legal justification for interdicting drug trafficking vessels under UNCLOS. That said, it should be recalled that in accordance with Articles 92 and 110 of UNCLOS, such interference may also be authorized pursuant to a treaty. Indeed, there have been numerous bilateral agreements as well as a few multilateral treaties, which have granted such authorization to State parties with respect to drug trafficking.
15.2.2The 1988 Vienna Drug Trafficking Convention
The most important multilateral instrument in this regard is the Vienna Drug Trafficking Convention, which contains provisions specifically directed to traffic at sea, including the right to board the vessels of other State parties engaged in illicit drug traffic. This Convention had been the outcome of protracted negotiations between States and various UN bodies since 1982.31 In respect of the right to board the vessel, Article 17 (3) reads as follows:
A Party which has reasonable grounds to suspect that a vessel exercising the freedom of navigation in accordance with international law and flying the flag or displaying marks of registry of another Party is engaged in illicit traffic may so notify the flag State, request confirmation of registry and, if confirmed, request authorisation from the flag State to take appropriate measures in regard to that vessel …
This provision should be scrutinized in relation both to Article 17 as a whole, entitled ‘illicit traffic by sea’ and to other key provisions of the Vienna Drug Trafficking Convention, with which it is inextricably linked. For example, while the focus of the Article in question is on facilitating the exercise of enforcement jurisdiction in relation to suspect vessels, the overall effectiveness of the scheme is contingent upon the possession by States of appropriate prescriptive jurisdiction, which is accorded by Article 4.32
The first and most significant remark is that Article 17 (3) requires the explicit ‘authorisation’ of the flag State, a word which was included after lengthy informal consultations. As it is pointed out in the travaux préparatoires, this word was deliberately used to ‘stress the positive nature of the decision and of the action which the flag State in the exercise of its sovereignty was to take with regard to the vessel. It is entirely within the discretion of that State to decide whether to allow another party to act against its vessel’.33 Apart from the need for the explicit authorization, the requesting party has, first, to notify the flag State, then, request confirmation of the registry, and lastly request the authorization. This provision should be read in conjunction with paragraph 4, which stipulates that ‘the flag State may authorize the requesting State to inter alia: a) board the vessel, b) search the vessel and c) if evidence of involvement in illicit traffic is found, take appropriate action with respect to the vessel, persons and cargo on board’.34 What logically flows from these provisions is that the consent of the flag State is necessary for any measure taken against the vessel and the authorization by the latter State should exist with respect to each process individually, that is, the boarding, search, and detention of the vessel.
In addition, Article 17 addresses a number of issues, which are instrumental to the application of the provision in question. For example, there is the requirement for each Party to designate an authority to receive and respond to requests (para. 7).35 While it is for each State party to determine the appropriate location for the designated national authority and the powers and functions to be entrusted, the need for it to be in a position to respond effectively and expeditiously to incoming requests is even more important here, in light of the often-difficult operational environment presented by open ocean areas. Notwithstanding this pragmatic need for flexibility and efficiency, there should always be certain guarantees that the process will not be abused and competent State agents will give the authorization.
To exemplify this, suffice it to refer to the Regina v Charrington and others case (1999), in which the British Crown Court granted a stay, because the boarding, search, and seizure of the vessel in question pursuant to Article 17 of the Vienna Drug Trafficking Convention were mala fides, thus unlawful, as was the subsequent taking of the boat to the United Kingdom.36 It was considered, amongst others, that the boarding was authorized by an inappropriate authority, since the British official, who claimed to have telephoned the office of the Attorney-General of Malta, that is, the designated authority under the laws of Malta for Article 17 (7) purposes, was unable to produce evidence to the satisfaction of the Court that such contact had been made. This judgment demonstrates how significant the written form of the authorization is for reasons of legal certainty and due process.
Article 17 is primarily concerned with making detailed provisions for procedures designed to allow State parties to exercise enforcement jurisdiction on the basis of flag State consent. Nevertheless, this Article hinges its application and effectiveness upon the existence of the respective prescriptive jurisdiction, which is the function of Article 4. This Article, the scope of which is confined to the most serious international drug trafficking offences specified in Article 3, commences by requiring State parties to establish jurisdiction over any such offences committed in its territory or on board its vessels. Interestingly, however, in spite of precedents,37 the Vienna Drug Trafficking Convention fails to require the States to establish jurisdiction over offences committed by their nationals38 as well as over the offences committed on board a vessel concerning which that State has been authorized to take appropriate measures pursuant to Article 17 (3). The assertion of legislative jurisdiction in these cases was made an option under Article 4 (1) (b) (i) and (ii) and it is reported that relatively few States have established such jurisdiction.39 As a result, there could be a case where a State party will be authorized to seize the suspect vessel on the high seas by the flag State, yet it will lack the requisite jurisdiction to seize the cargo and try the offenders in its courts. Undoubtedly, this lack of mandatory establishment of jurisdiction undermines the effective application of Article 17.
In addition, neither the latter provision, nor Article 4 address the issue of which State’s jurisdiction would apply in the case of the boarding of a vessel of another State party. What can be logically inferred from Article 17 (4), which requires the explicit authorization of the flag State for all the relevant measures, is that it is the flag State which enjoys primary jurisdiction. Nevertheless, it may delegate the relevant jurisdictional competence to the boarding State, which assumes concurrent jurisdiction over the persons and the cargo on board. It is regrettable, however, that while concurrent claims to jurisdiction will inevitably arise within this context, and Vienna Drug Trafficking Convention does not seek to solve the problem of what priority to give to such competing assertions.40
15.2.3 The 1995 Council of Europe Agreement
The shortcomings of the Vienna Drug Trafficking Convention were in the regional context to a certain extent mitigated by the 1995 Council of Europe Agreement (hereinafter the ‘1995 CoE Agreement’).41 Article 17 (9) of the Vienna Drug Trafficking Convention calls for the establishment of bilateral and regional arrangements to enhance the effectiveness of the provisions of Article 17. Such an arrangement is the 1995 CoE Agreement that supplements and strengthens the relevant treaty framework in the European context, consisting, besides the Vienna Drugs Convention, of few bilateral treaties.42 The final 1995 CoE Agreement is intimately connected to the 1988 Convention, since Article 17 and other relevant provisions acted as a constant frame of reference for the drafters.43
As a result, following Article 17, parties to the 1995 CoE Agreement undertake to cooperate to the fullest extent possible to interdict narcotics trafficking at sea. Action towards this end is envisaged in respect of private and commercial vessels located beyond the territorial sea of any State44 and includes the right of visit of vessels flying the flag of another State party, which has given its explicit authorization to this end. It was agreed from the outset that, as with the Vienna Drug Trafficking Convention, action of this kind would be firmly based on the concept of authorization of the flag State, as well as that there is no obligation for a flag State to respond affirmatively to a request for authorization.45
While the 1995 CoE Agreement draws significantly from the paradigm of the Vienna Drug Trafficking Convention, its merit lies not only in that it addresses some of the already observed weaknesses of the latter Convention, but also in that it espouses practices, which are more prevalent in the realm of bilateral agreements. Firstly, it is of great practical significance that it requires rather than merely permits, as does the Vienna Drug Trafficking Convention, the extension of prescriptive criminal jurisdiction to relevant offences taking place on board both the flag vessels of other parties and stateless ships.46 Especially with respect to vessels without nationality, it is worth recalling that Article 17 (2) of the Vienna Drug Trafficking Convention only makes provision for States to request assistance in suppressing the use of such vessels in illicit traffic without making any reference to legislative jurisdiction in this regard. Conversely, Article 3 (3) of the Agreement requires each participating State ‘to take such measures as may be necessary to establish its jurisdiction over the relevant offences on board a vessel without nationality’.47
Furthermore, it is certainly noteworthy that while as a consequence of the approach adopted in Article 3 the boarding State and the flag State will possess concurrent jurisdiction over the relevant offences, it was decided even within the Pompidou Group to follow the approach adopted in some bilateral treaties, that is in such circumstances the rights of the flag State should be accorded priority.48 Hence, the so-called ‘preferential jurisdiction’ was recognized, which in the words of Article 1 (b) means that ‘in relation to a flag State…the right to exercise its jurisdiction on a priority basis, to the exclusion of the exercise of the other State’s jurisdiction over the offence’.49
In the European context, there is also is an inter-governmental working group or taskforce comprising seven EU Member States: Spain, France, Ireland, Italy, the Netherlands, Portugal, and the UK, which is called Maritime Analysis and Operation Centre—Narcotics (MAOC-N) and aims to tackle maritime drug smuggling in Europe.50 The mission of MAOC-N is to enhance intelligence and coordinate police action on the high seas, with a view to intercepting vessels carrying cocaine and cannabis. Naval and law-enforcement bodies (police, customs) participate in MAOC-N, although the latter leads the operations. This notwithstanding, there is no standing treaty giving boarding powers to Member States, while MAOC-N falls short of being an international organization per se.
15.2.4The 2003 Caribbean Agreement
Another regional arrangement to be regarded is the Agreement Concerning Co-operation in Suppressing Illicit Maritime and Air Trafficking in Narcotic Drugs and Psychotropic Substances in the Caribbean Area, concluded on 10 April 2003, at San José, Costa Rica and entered into force on 18 September 2008.51 This Agreement may be said to have emerged from the extensive practical experience of the States and territories of the region, which has also materialized in an extensive network of bilateral agreements in respect of drug trafficking. In addition, it has been significantly influenced by the special geographical circumstances of the Caribbean basin. It is observed that the existence, for example, of a series of navigational ‘choke’ points has a direct relevance to the increased drug trafficking in the region as well as to the difficulties that law enforcement operations face therein.
This Agreement, like the 1995 CoE Agreement in the European region, purports to enhance the effectiveness of Article 17 of the Vienna Drug Trafficking Convention in the Caribbean basin; however, it is far more innovative and ambitious than the latter, since it is based less on the Vienna Drug Trafficking Convention and more on the bilateral arrangements already in place in the region. Accordingly, this instrument contains detailed provisions concerning law enforcement operations of all State Parties in and over the territorial waters of the contracting States (Arts 11–15); a zone of coastal State sovereignty beyond the ratione loci reach both of the Vienna Drug Trafficking Convention and of the 1995 CoE Agreement.52 It directly addresses issues arising in illicit trafficking by air and regulates in some detail assistance by aircraft for the suppression of illicit traffic in zones of coastal State jurisdiction, issues on which the aforementioned treaties are largely silent. By virtue of Articles 11 and 13 (6), however, the previous authorization of the coastal State is a prerequisite for such operations, which, in any event, are subject to the authority of the coastal State and should be carried out by, or under the direction of, its law enforcement authorities.53
Another innovative feature, which has been directly drawn from the bilateral treaties, is the already discussed ‘ship-rider’ institution, that is, each Party is required to designate law enforcement officials to embark on the vessels of other Parties in order to facilitate the timely provision of authorizations and the exercise of relevant national law enforcement powers within zones of jurisdiction of the former Party (Art. 9). Under this provision, such law enforcement officials, when duly authorized, may enforce the laws of the designating Party both in the waters of that Party or seaward of such waters, ‘in the exercise of the right of hot pursuit or otherwise in accordance with international law’, such as in the proper exercise of contiguous zone jurisdiction. In addition, they may authorize the entry of the vessel on which they are embarked into the territorial sea of the designating Party and authorize the conduct of counter-drug patrols and boarding of suspect vessels therein. Given the obvious complexity of such arrangements from a formal legal perspective, Article 9 (4) clarifies that when enforcement action is conducted pursuant to the authority of the embarked law enforcement officials, any search, seizure, detention, or use of force shall be carried out by such officials.54
Furthermore, even in relation to subject areas common to the 1995 CoE Agreement or the Vienna Drug Trafficking Convention, namely the authorization to visit suspect vessels on the high seas, the Caribbean Agreement significantly departs from the latter treaties. In stark contrast to the requirement of explicit authorization prior to the visit of a vessel of another State Party, Article 16 of the Agreement under scrutiny stipulates that ‘when law enforcement officials of one Party encounter a suspect vessel claiming the nationality of another Party located seaward of any State’s territorial sea, this Agreement constitutes the authorization by the claimed flag State Party to board and search the suspect vessel, its cargo and question the persons found on board … ’.55 In other words, the ratification by the flag State of the Agreement itself constitutes henceforth an a priori and ipso facto authorization for every case of boarding on the high seas. This certainly enjoys the merit of expediency and efficiency, since there is no need for the intervening State to contact the flag State and request authorization prior to boarding, which might jeopardize the success of the operation in case of a delayed response, taking also into account the operational problems posed by the use of so-called ‘go-fast’ boats.56 This is also in keeping with the overall philosophy of flexibility and practicality reflected in the text as a whole.57
Although this a priori authorization is the rule, the parties, mindful of the fact that such a radical departure from past multilateral treaty might pose policy, legal, or other difficulties for some States, provided in the Agreement for two additional alternatives: State Parties can either opt for the express authorization model of the Vienna Drug Trafficking Convention (Art. 16 (2)), or the implied or tacit authorization model (Art. 16 (3)). Under the paragraph 3 option, authorization is deemed to have been granted by the flag State if there is no response to an oral request for verification of the nationality or the requested Party can neither confirm nor deny nationality within the four hour time frame envisaged in Article 6 (4).58 Both options are available to State parties upon signing or ratifying the Agreement or any time thereafter by notifying the Depositary (Costa Rica); a notification that can be withdrawn at any time.59 It is also of relevance to note here that the boarding and search of a suspect vessel under Article 16 ‘is governed by the laws of the boarding Party’ (para. 8).
Like the 1995 CoE Agreement, Article 24 makes clear that in all cases of vessels subject to law enforcement operations seaward of the territorial sea, the flag State retains what is designated as ‘primary’ or ‘preferential’ jurisdiction over the detained vessel, cargo and the persons on board. When, however, the vessels are detained in the territorial waters of a State party, the coastal State has primary jurisdiction. Given that it is preferential and not exclusive, the flag or the coastal State respectively may waive the jurisdiction in favour of the intervening Party. A prerequisite to this would be that both States have prescriptive jurisdiction in respect of the relevant offences. In contemplation of this, Article 23, similarly to the 1995 CoE Agreement and contrary to the Vienna Drug Trafficking Convention, provides for the compulsory establishment of jurisdiction in respect of offences on own flag vessels, on vessels without nationality and on board the vessels of other Parties when located seaward of the territorial sea of any State. Given the mandatory nature of these jurisdictional provisions, all Parties should ensure that the relevant legislation would apply in all of the above circumstances.