Seizure of vessels

Seizure: A sovereign right?

Ruby Hassan, Assistant Vice President, Claims at Norwegian marine insurer Skuld explains the complex international law surrounding the seizure of vessels

The Togo flagged tanker, Noor One, was found to be smuggling more than two tonnes of heroin into Greece. The ship was detained and all 11 crew members were arrested.

Photo courtesy Hellenic Coast Guard.

An extensive regime of laws applies in relation to activities which take place in, over and under the sea. The way in which jurisdiction is bordered at sea is by designating certain maritime zones in which coastal states have certain rights and by retaining the concept of sovereign jurisdiction of vessels in the form of flag state jurisdiction. Some are universal and apply to all states. Some are regionally applied by geographic region and some are bilaterally applied to two states which have agreed to the laws. While there are the state’s own laws, the United Nations Convention on the Law of the Sea 1982 (UNCLOS) has been sufficiently accepted to be considered customary international law and therefore binding even on states which are not signatories.

Although states also have some jurisdiction beyond the territorial sea, there are caveats to be applied. UNCLOS

outlines three maritime zones in which coastal states exercise full sovereignty: 1. Internal waters: All waters on the landward side of the coastal state’s baselines, including areas or ports or roadsteads; 2. Territorial seas: All waters measured seaward from the baselines out to a maximum of 12 nm; and, 3. Archipelagic waters: All waters inside the special set of baselines drawn to connect the outer islands of an archipelagic state.

MARITIME LAW ENFORCEMENT

Freedom of navigation is considered a vital principle of international law. UNCLOS provides that ships of all states enjoy the right of innocent passage through the territorial sea, or transit passage through a strait used for international navigation. Seizure of a vessel which is enjoying these rights would be unlawful as a matter of international law. Whether coastal or landlocked, states can be affected by the impact of threats posed at sea or international waters such as piracy and armed robbery, terrorism, drug trafficking and trafficking in nuclear materials and firearms, human trafficking and migrant smuggling, waste trafficking and illegal activities in the fisheries sector. Successful prosecution of illegal conduct in the maritime domain can only take place when the prosecuting state can factually establish the location of such conduct within a given zone to ensure that the prosecuting state can legally exercise its domestic jurisdiction over the conduct in question.

CRIME OF PIRACY

Piracy is any illegal act of violence or detention on the high seas (ie outside the 12nm limit) committed for private ends - robbery occurring within the 12nm limit is treated as a crime of robbery under the laws of the coastal state. The maritime crime of piracy exists independently in customary international law, essentially empowering all states regardless of whether they have ratified UNCLOS. Article 105 of UNCLOS specifies that every state may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates and arrest the persons and seize the property on board, whether the incident took place on the high seas, or in any other place outside the jurisdiction of any state.

The courts of the state that carried out the seizure may also decide upon the penalties to be imposed, and to determine the action to be taken.

The prohibitions on the crimes of piracy attained jus cogens status, establishing a duty on all states to cooperate towards their eradication. Given this status, international law permits the seizure by any state of any ship on the high seas reasonably suspected of being a pirate, or of engaging in the crime of piracy. Like any interference with the freedom of navigation on the high seas, this right is limited, and applies only to clearly marked warships in the service of the government of a state.

SMUGGLING ILLEGAL NARCOTICS

Article 108 of UNCLOS places an obligation on all states to cooperate in the suppression of illicit traffic in narcotic drugs and psychotropic substances by sea. Several other multilateral treaties, such as the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988, also contain provisions relating to illicit traffic in drugs by sea. However, the obligation does not permit the boarding of vessels of a foreign-flag, even on suspicion of drug trafficking, without flag state consent. Essentially, the flag state has preferential jurisdiction over any relevant offence committed on board its vessel.

If, however, the suspect vessel enters national waters of the coastal state, action can be enforced based on the coastal state’s own territorial jurisdiction.

One exception to this requirement for requesting flag state consent is where the vessel appears to be stateless or unflagged. Thereafter, it shall be for that state to assert jurisdiction and determine what actions are appropriate over any relevant offences which may have been committed by any persons on board the vessel if such action is authorised in that state party’s national law.

Where the intervening state has reasonable grounds to

“Freedom of navigation is considered a vital principle of international law. UNCLOS provides that ships of all states enjoy the right of innocent passage through the territorial sea, or transit passage through a strait used for international navigation.”

Ruby Hassan, Skuld

suspect that a vessel, which is flying the flag or displaying the marks of registry of another state, or bears any other indications of nationality, is engaged in or being used for the commission of a relevant offence, the intervening state may request the authorization of the flag state to stop and board the vessel in waters beyond the territorial sea of any state. It may also take some or all of the other actions specified in the Agreement on Illicit Traffic by Sea.

If the flag state grants the request, such authorization may be subject to conditions or limitations, which may require that the flag state’s express authorization be given before any specified steps are taken by the intervening state.

THE OBSCURE REALITY

Since July 2019, a record number of ships have been detained upon arrival in Mexican ports (in particular, Altamira and Ensenada ports), with the ports of departure usually from Ecuador, Colombia or Panama, and where illegal narcotics have been found on board. In addition to the detention of ships, some crew were also arrested. Article 194, Fraction II of the Mexican Federal Code of Criminal procedure dictates that wherever anyone is accused of a drug related offense, they must remain in prison for the duration of the investigations, pre-trial and trial detention, even if innocent.

In Mexico, one of the most common instruments implemented against the assets of crime is asset forfeiture. The legal concept developed in Mexico is “extinction of domain”, which was incorporated into the constitutional reform of Article 22, as well as the Federal Law on Extinction of Domain enacted in May 2009, with the aim of hitting crime “where it hurts the most—their money”.

It is a legal hybrid between civil assets forfeiture and criminal assets forfeiture because it has been interpreted by the Federal Courts as a civil procedure against an asset involved in a crime but requires a criminal proceeding against the owner.

However, for the extinction of domain to proceed, even when a legal proceeding against the owner is required, it is only necessary to prove that the asset was linked to the crime. There is no onus to prove the owner’s guilt or obtain a criminal sentence. Furthermore, the burden of proof rests on the owner to demonstrate the legal status or “innocence” of the asset.

In 2014, the Togo flagged tanker, Noor One, was found to be smuggling more than two tonnes of heroin into Greece. The ship was detained in the port of Eleusis, and all 11 crew members were arrested. The heroin was found by the Greek authorities in two hiding places.

The Noor One had received the drugs at sea between Oman and Pakistan. The ship was later confiscated by the state and three auction attempts were made with a starting price of €60,000, all of which were unsuccessful. In a surprise twist ending, the vessel was later returned to its owners.

In 2007, the Cayman Islands flagged B Atlantic was used in an unsuccessful attempt to export 132 kg of cocaine from Venezuela, which had been strapped ten metres below the waterline. The crew was arrested immediately, and the ship was confiscated by the Venezuelan authorities under the strict Venezuelan Anti-Drug Laws.

Eventually, the master and second officer were sentenced to nine years in prison for complicity in drug trafficking and the ship was detained by the Venezuelan courts. The ship was subject to a provision in the Venezuelan Anti-Drug laws, that the property, including ships employed to commit the investigated offence, will in all cases be seized as a preventative measure and that when there is a final and definitive judgment, an order will be made to confiscate the property.

Article 105 of UNCLOS specifies that every state may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates and arrest the persons and seize the property on board, whether the incident took place on the high seas, or in any other place outside the jurisdiction of any state.