Legal Frameworks for Joint Maritime Law Enforcement Operations: Balancing National Sovereignty with Cooperation in Combating Transnational Crime
1.1 Overview of Joint Maritime Law Enforcement Operations
Joint maritime law enforcement operations (JMLEOs) have been used as a countermeasure against transnational crime over the last century, increasing in popularity due to the perceived easier nature of intercepting criminal activity at sea compared to on land. They are defined in this research as “sustained, coordinated, collaborative law enforcement action by two or more states, involving official representatives of those states, acting on the high seas or in the exclusive economic zone, to prevent, stop, or otherwise address illicit activity, and to apprehend, investigate, and, where warranted, prosecute offenders” (Deflem, 2002). This contemporary definition is a vast extension of what has been previously coined as “ship-rider” agreements, where a state would allow foreign officials to make arrests aboard their flagged vessels in waters of the enforcing state, without actually aiding in such enforcement. The official change in the US from ship-rider agreements to DOJ/DOD led operations evidences a growing commitment to this form of enforcement. Despite increased practice of JMLEOs, few accounts exist and face theoretical debate. It is therefore vital in developing understanding that these operations may be examined in the context of contemporary legal frameworks and hold relevance to Australia, who has engaged in various operations regionally and further.
1.2 Importance of Balancing National Sovereignty and Cooperation
Sovereignty is essentially a state’s supreme and independent political authority. It is a “spatial concept” meaning that it applies to a certain portion of the earth’s surface. The principle of sovereignty is based on the fact that there is no higher international authority and that all states are theoretically equal and independent. Territory is central to sovereignty; any incursion by external actors onto the territory of another state is a violation of that state’s sovereignty. Under the United Nations Convention on the Law of the Sea (UNCLOS), every state has the right to an Exclusive Economic Zone (EEZ) up to 200 nautical miles from its shore. Within this EEZ, a state has “sovereign rights” for the purpose of exploring, exploiting, conserving, and managing natural resources, whether living or non-living. The rights and jurisdiction of states within their territorial seas and EEZ pose limitations to joint law enforcement operations and invoke another state’s interpretation of threat to national sovereignty. As such, to fully understand the implications of sovereignty to joint maritime operations, it is beneficial to identify what constitutes a threat to sovereignty.
Sovereignty is central to a state’s national identity and purpose and underpins the international and domestic power structures. It is a contested concept, partly due to its enigmatic nature and the fact that it is subject to various interpretations and definitions. Contemporary international relations and the dynamic process of globalization have led to suggestions that state sovereignty is under threat and must be shared or pooled. This is ever apparent in contemporary maritime relations, in particular with the issue of combating transnational crime through joint law enforcement maritime operations. It is suggested that sovereignty is a significant obstacle in such operations yet this point warrants closer examination. It is important to begin with an understanding of what sovereignty is and its implications to joint law enforcement operations.
1.3 Significance of Combating Transnational Crime
The United Nations Convention on Transnational Organized Crime defines the term a bit more simply as “offenses that are punishable by a minimum of four years imprisonment, and are committed in more than one state.” It goes on to state that transnational organized crime is “group criminal activity undertaken by three or more persons with the aim of committing one or more serious crimes or offenses to obtain a financial or other material benefit.” This two-part definition addresses the range of general transnational crime and the more specific area of organized crime. It also provides important legal definitions in its article one, which include the aiding and abetting, as well as attempts to commit transnational organized crimes. This Convention was drafted on November 15, 2000, and subsequently signed by a large number of states during a conference in Palermo, Italy. It is considered to be the first comprehensive and global international treaty designed to fight transnational organized crime and is an essential legal framework for its member states. In the international effort to eliminate seeks to help member states eliminate transnational crime. This is a daunting task for many nations, but particularly those that have limited resources and infrastructure. The availability of weapons and technology, mobility and the growth of the global economy have made this type of crime more complex and intense. All of these factors have also created an environment in which transnational crimes have increasing impact on national and regional security, often creating a threat to state sovereignty. In many examples, small island states or developing nations are heavily affected by a relatively small amount of crime such as illegal fishing or smuggling of contraband. These states are then faced with the difficult challenge of enforcing their rights under international law to protect their resources and eliminate said crime which often involved confronting more powerful criminal elements. This dilemma requires the help of other states in terms of resources, intelligence and often includes cooperation with law enforcement agencies of other states for pursuits across national boundaries.
Transnational crime is defined as “planned or realized illegal activity that transcends national borders, and is often organized and coordinated.” A general understanding of this concept would be activities that range from illegal immigration, arms smuggling, smuggling and trafficking of goods including a wide range of contraband, and even people, as well as piracy and environmental terrorism. All of these activities are violations of national laws, but have a serious impact on the stability and security of states and regions.
2. Legal Frameworks for Joint Maritime Law Enforcement Operations
For centuries, law enforcement operations were confined within the boundaries of nation states. But modern day law enforcement agencies now operate beyond their shores as a result of increased globalization which has in turn resulted in the increase in transnational criminal activities. With respect to joint maritime law enforcement operations, Andy (2005, p. 101) defines it as “the co-operative enforcement, i.e. the performance of an enforcement function within the area under the jurisdiction of another party to the agreement”. Thus it is clear that joint maritime law enforcement operations involve a degree of intervention into a foreign jurisdiction and consequently a limitation on the sovereignty of that foreign state. The focus of this paper will be to explore the extent to which national sovereignty is infringed upon in joint maritime law enforcement operations and the legal frameworks which regulate these activities. This paper asserts that sovereignty has been compromised to varying degrees dependent upon the nature of the activity and that the frameworks which exist have been developed with the co-operation of states in mind.
The use of joint maritime law enforcement operations for the purposes of combating transnational crime has become an attractive option for states who recognize that the effectiveness of such operations far exceeds that of individual state action. Joint operations provide for a pooling and sharing of resources between states which will be more cost effective i.e. less burdensome on the taxpayer. This can range from the use of equipment to the allocation of human resources and in some cases the exchange of intelligence and information. The effectiveness of such operations is thus far greater than that of individual state action and will often result in greater prevention and enforcement outcomes. Eng (1997, p. 181) cites the example of US coast guard operations which in the mid 1990s were making significant interdictions of marijuana traffic from Jamaica. Through a joint operation called ‘Operation Gateway’ Jamaican authorities were convinced to take similar action in their own waters resulting in substantial prevention displacement for US operations.
2.1 International Conventions and Treaties
It is the international conventions and treaties negotiated by sovereign states which represent the highest order legal framework for cooperative action in the task of combating transnational crime. At best, they are likely to embody principles and rules which in time will filter into domestic legal frameworks. However, the negotiation and subsequent practice of treaty obligations will always be influenced by the prevailing international context. Treaty provisions do not operate in a political vacuum and widespread deviation from a principle established in a convention may indicate a shift in opinio juris as to customary international law.
The negotiation of international treaties is a task which is typically undertaken by executive organs of government rather than a legislature. An increasingly common practice is to involve private external actors in the negotiation of such agreements, particularly in regulatory areas. Treaty negotiations on the environment are the best examples of association with NGOs to develop expertise and guide state delegations on treaty text. The negotiation process, which is essentially intergovernmental, may potentially facilitate a common understanding between relevant executive agencies in participating states as to the application of a treaty and to cooperative enforcement arrangements.
International conventions and treaties are the most formal and high profile method by which states seek to agree cooperative mechanisms with others. They are typically negotiated over a number of years and are often deliberately constructed to allow states to opt in or out of particular commitments. The process of negotiation of rules is likely to influence domestic law of negotiating states as a means of ensuring consistency between international obligations and national law. The nature of the commitment made will depend on the wording of the particular treaty and there are well recognized principles of treaty interpretation as to the legal obligations which a state is undertaking.
2.1.1 UNCLOS (United Nations Convention on the Law of the Sea)
2.1.2 SUA Convention (Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation)
2.1.3 UNTOC (United Nations Convention against Transnational Organized Crime)
2.2 Regional Agreements and Initiatives
Regional agreements and initiatives have proved to be the most popular way of pursuing cooperative legal arrangements in the maritime arena, reflecting a number of obstacles in using the global model. In particular, problems in reconciling various and often competing national interests both within and outside the convention environment. Regional agreements are also more flexible than conventions. They can be tailored to the precise needs of a particular group of states and can be more easily amended or updated. The concept is not, however, limited to a formal written agreement as studied in public international law. Various initiatives may be classified as customary law and/or soft law as they do not always constitute a formal agreement but represent a pattern of state practice or a set of guiding principles. These also embrace cooperation both post and pre-convention in the form of drafting or lobbying for an agreement, initiative, or convention. Therefore, the best means to understand cooperative initiatives in the maritime law enforcement within the next part.
2.2.1 ASEAN Regional Forum (ARF)
2.2.2 Western Indian Ocean Counter-Piracy Initiative (WIO-CPI)
2.2.3 Caribbean Regional Maritime Agreement (CariMAC)
3. Challenges in Balancing National Sovereignty and Cooperation
Maritime law enforcement operations that are jointly conducted by two or more coastal states against the flow of transnational activities connected with organized crime have become a topic of increasing interest and importance in the international community. Close cooperation between states in controlling and suppressing criminal activities implicates exercise of their enforcement authority against persons, goods or vessels. Before embarking on such cooperative enforcement activities, states will naturally seek to ensure that the commitments and actions of others are in compliance with international and domestic law. For this reason, it is always the legal framework and its constraints that will be an important focus for consideration by government decision-makers and their law of the sea and maritime affairs advisers.
The term “joint maritime law enforcement operations” is used here to denote activities by governmental vessels or boarding teams in a zone beyond the territorial sea, which involve, in carrying out a specific operation, the exercise of enforcement powers by personnel from two or more states aboard the vessels or aircraft of one of them. It will be noted, however, that the term has been used with varying meanings and in this respect is not yet an accurately defined concept in law of the sea or maritime law enforcement practice.
3.1 Jurisdictional Issues and Legal Framework Harmonization
The next section provides a concise introduction to the complexities of jurisdictional issues and legal framework harmonization, providing a political and theoretical background which serves to highlight both the importance and difficulties of the issues discussed. Recent events have enshrined the understanding amongst regional states that piracy and armed robbery against ships are not only a threat to the safety of seafarers and shipping on the high seas; they are also a threat to national, regional, and international security. The taking of hostages from ships (occurring currently in the waters off the coast of Somalia) and the kidnap and ransom of high-profile individuals (such as the seizure of the Saudi supertanker the Sirius Star) have propelled maritime crime to a level necessitating coordinated law enforcement operations designed to prevent, combat, and suppress the incidences of transnational crime. These operations will invariably have to build upon traditional methods based on national law enforcement jurisdiction with a view to conducting operations both within and beyond national jurisdiction on the high seas and in straits and EEZs.
The events of September 11, 2001, and the subsequent ‘war on terrorism’ have led to significant changes in domestic legislation amongst many states enabling law enforcement authorities to conduct investigations, intelligence gathering, and operations for the prevention of a wider range of crimes with a focus on terrorism and transnational crime. The issue of law enforcement on the high seas has been brought to the forefront of political agendas by some states and law enforcement agencies clamoring for increased use of naval military assets and a broadening of law enforcement jurisdiction. This is evident in recent legislative proposals by some coastal states to increase their jurisdiction over foreign vessels in areas such as the boarding and searching of ships, and the taking of suspects and evidence. With respect to military assets, some states have already engaged in bilateral agreements and combined military operations in the war on terrorism and transnational crime. An example is the PSI which is a US-led initiative aimed at stopping the trafficking of WMD, delivery systems, and related materials through voluntary arrangements amongst states and existing legal authorities available under international law. The PSI has already conducted several successful exercises involving real-time intelligence gathering and tracking of vessels suspected of carrying illegal weapons or material.
3.2 Political Considerations and National Interests
The topic that is frequently brought up in the discussions pertaining to joint maritime law enforcement operations but often gets pushed aside behind the more concrete challenges of jurisdiction and resource allocation is the impact of political concerns and the promotion of national interests. Political climate is the product of its history and in the modern era many states have disputes with their neighbors over boundary delimitation or exclusive economic zones. Products of past imperial pursuits, many nations feel that their historical rights in areas around the world are being encroached upon (transnational-crim/conf0201). While the issue of historical rights is distinct issue from that of national interests, in the political climate historical rights will usually come up in to the equation when a state is deciding what it is prepared to compromise in terms of its national interests. Exclusive economic zones (or EEZ) are areas of sea which a state has special rights regarding the exploration and use of marine resources including energy production from water and wind. EEZ regimes were introduced after the 1982 United Nations Convention on the Law of the Sea (UNCLOS) and have been a boon to law enforcement trying to find a more clear legal basis for action against various maritime based crimes. EEZ Regimes have also complicated matters of cooperation between states and have led to issues of states being unwilling to allow foreign law enforcement agencies to take investigative or enforcement action in their EEZ (transnational-crim/ppt051).
3.3 Resource Allocation and Coordination
Asset allocation will be difficult to achieve without the development of some form of centralized control body. States are unlikely to commit the use of their assets without some guarantee that they will be used effectively and to their own national interests. However, the establishment of a centralized control body may be viewed as an infringement upon state sovereignty as the control body will need to use some form of coercion upon states to commit their assets to central control. A further reservation about asset allocation is the use of national military assets for what appears to be law enforcement. This blurring of lines may require further clarification of law enforcement immunity and the relationship between military and law enforcement actions.
Different enhancements to cooperative initiatives will require different types of resources. For example, measures aimed at developing new legal frameworks are likely to require secondment of legal experts and political negotiation. A cooperative response to a specific transnational crime event such as drug smuggling may require a more immediate and physical allocation of resources. Military and law enforcement personnel are likely to view law enforcement in the maritime environment as an extension of work in a domestic environment and will expect similar protection with law evolving tactics towards Coast Guard and law enforcement operations. These personnel are likely to be opposed to operational secondment with multilateral forces due to concerns about status protection and lack of familiarity with the new legal regimes.
The ability of littoral states to effectively combat transnational crime through cooperative mechanisms will be greatly influenced by the allocation and coordination of resources. Resource allocation will be a contentious issue for many developing nations who will view the proposition of sharing costly assets and technology as furthering the interests of developed nations. Developed states will be unlikely to commit resources without retaining some degree of control over their use. However, uncoordinated resource allocation by individual states in response to specific threats could duplicate assets and lead to inefficiencies. This, in turn, could lead to criticism of the legal enforcement regime itself if it is perceived as a costly venture with little payoff.
4. Best Practices and Case Studies
The best practices and case studies form the most important part in determination of an effective legal framework for enhancing cooperation among states in combating transnational organized crime on the high seas. This has the advantage of being able to critically examine and question the various legal frameworks in light of real-life situations and practical experiences. The basis of this examination is the current literature on joint maritime law enforcement operations and analysis of the UN Convention on the Law of the Sea (UNCLOS) and how it may provide legal basis for such operations. This is used to set the foundation for looking at the legal frameworks in practice and how successful they have been. Due to constraints on the size of this paper, it has not been possible to cover all successful models. A selection has been made to look at what are considered the most successful cases. In order to fairly examine each case, critical analysis has been used, with the aim of finding out what factors contributed to the success and what the drawbacks were. This allows for greater understanding of where changes need to be made to the legal frameworks in order to better facilitate joint maritime law enforcement operations.
4.1 Successful Models of Joint Maritime Law Enforcement Operations
The 1977 Scheme of Malaysia, Indonesia, and Singapore to conduct coordinated sea patrols in the Malacca Straits. This Scheme was aimed primarily at combating piracy and armed robbery against ships (ReCAAP, 2011: 41). This relatively simple agreement created an effective method to enforce the law in a narrow international strait, by providing a legal framework to hold perpetrators accountable and ensuring that evidence of crimes can be effectively documented and presented in a court of law. These are key requirements of successful enforcement for any crime; however, they had been largely unattainable for crimes at sea due to complex issues with jurisdiction and evidence collection. The success of the Tripartite Scheme led to the 2004 coordinated sea patrols known as “Eyes in Outer Space”. These patrols were launched by Indonesia, Malaysia, Singapore, and Thailand and aimed to achieve aerial surveillance of the common maritime areas of these participating states (Cartwright et al, 2006: 291). This was an innovative step using technology to provide evidence and surveillance of crimes at sea, in a common area immune from any charges of entering to gather intelligence. This initiative, while having since suffered from several interruptions, maintains a strong example of effective cooperation in the enforcement of state-based jurisdiction in areas of joint or shared sovereignty.
Joint maritime law enforcement operations have become increasingly necessary in combating various forms of transnational crime. The movement of these illegal flows at sea necessitates effective regulation and control (Williams, 2008: 3). In terms of fisheries violations, organized immigrant smuggling, and drug trafficking, the combined jurisdiction areas on the high seas or international straits provide a channel for criminals to escape detection or prosecution by using the threat of moving incidents into an adjacent jurisdiction to deter law enforcement action by that nation (Valencia et al, 2009: 229). The above characteristics of transnational crime give clear rationale as to why such operations must be conducted in a moving away from traditional approaches of state-based jurisdiction and towards more effective cooperation and collective enforcement at sea. The following examples show the creation of successive efforts to break from the traditional paradigm and the movement of enforcement from a state-based activity towards more effective cooperation and allocation of shared resources.
4.1.1 Operation Atalanta: Combating Piracy off the Coast of Somalia
4.1.2 Joint Interagency Task Force South (JIATF-S): Countering Drug Trafficking in the Caribbean Sea
4.1.3 Operation Martillo: Disrupting Transnational Criminal Networks in the Eastern Pacific
4.2 Lessons Learned and Recommendations for Future Cooperation
A related lesson learned is that operations with a legal capacity are better able to impact the broader criminal justice system. The general consensus of practitioners involved in maritime counterdrug operations is that if the only strategy is to catch and convict drug traffickers, the occasional successful prosecution has little impact. In some respects, it may even be counterproductive as it can lead to the increased use of violence by drug traffickers who perceive a higher risk of getting caught. Operations aimed at building cases against high-level targets and kingpins with a view to their eventual prosecution are able to have a greater impact, but in order to do this effectively, it is necessary to have a much higher level of integration with the broader criminal justice system. One attorney involved in a training operation in the Pacific had this to say about law enforcement agencies attempting to develop a legal capacity:
The first lesson learned is that the impact is greater when maritime operations are focused on the interdiction of the proceeds of crime, rather than the more traditional seizure of drugs or other contraband. Although it is difficult to change the mindset of law enforcement agencies that want to show tangible results to their political leaders, the long-term impact on the criminal organizations is much greater if their assets are seized, and it has the added advantage of being more visible to the public. Proceeds-focused operations have been shown to achieve results across a number of different crime types, as evidenced by the experience of the Australian-led operation in the Solomon Islands, or the series of operations conducted by a number of Western states in the Caribbean, which were aimed at disrupting the cocaine trade between South and Central America and Europe.
