Can the Law Contribute to Combating Illicit Narcotic Drug Trafficking by Sea? The U.S. Legal Framework and the Extra-Territorial Enforcement Jurisdiction of Coastal States
(2020) Journal for International Trade and Transport Law - Tijdschrift voor Internationale Handel en Transportrecht - Revue de Droit du Commerce International et des Transports. 20(1). p.3-66
This article deals with legal issues related to the fight against drug trafficking by sea, as performed by the Governments of the United States and the western and southern European coastal States. The article specifically addresses how countries try to exercise jurisdiction outside their territory and how national courts deal with the phenomenon of drug trafficking by sea, particularly about cocaine. The author discusses jurisdictional and other problems associated with the extraterritorial exercising of enforcement jurisdiction over stateless vessels and vessels flying a foreign flag in the exercise of free navigation by coastal States on the high seas or in the Exclusive Economic Zone (EEZ) of another State. The author also considers the many challenges associated with the prosecution of alleged criminals, such as due process or ensuring the right to a fair trial and respect for human rights. This study includes legal texts from forty countries, all related to the fight against illegal drug trafficking and other crimes in the maritime domain. Also, this author has analyzed more than fifty judgments in cases where a coastal State has caught alleged drug traffickers outside the territorial waters (decided by competent courts in the United States, Jamaica, Spain, Italy, the Netherlands, and the United Kingdom, with convictions from 1995 until 2017). The study shows that the illegal trading of large amounts of cocaine by sea complies with all conditions as set under customary international law to be considered an international crime. Moreover, it is argued that every coastal State may exercise jurisdiction over such an offence without having to prove a nexus with the coastal State that is concerned, provided that it is a ‘stateless’ ship or that the relevant flag State explicitly consents to the coastal State applying its laws, and so waives its preferential jurisdiction.