The vast expanses of the sea, the complexity of the maritime transportation system, the immense volume of cargo transferred at each port, and the limited capacity for inspections of cargo creates opportunity for criminals.
Seaborne trade in the maritime realm follows a defined set of “sea lines of communication” based on currents and weather. Because of the robustness of shipping and mass amounts of cargo moved, traffickers utilize the same shipping industry routes with great effect. Shipping and sea lanes tend to offer anonymity for criminals, whereas their activities can be hidden behind legitimate industries. Criminal activity, especially illicit trade in narcotics, humans, and weapons, has become so extensive that it is difficult according to various studies to rule out implications of states and corporations in the criminal enterprise.
Individuals from various nationalities, followed by multiple vessels flagged to different states, adds the UN Drug Trade Report 2019, are used in the networks which transit the waters of various states and call at different ports before reaching their final destination. Despite the abundance of laws designed to combat illicit trafficking and an apparent impetus to stop specific types of crime, government’s remains only marginally successful in preventing the global flow of illegal goods due to the overwhelming volume and complexity of the markets for illicit trade. Working in tandem, the maritime forces nevertheless have made successful efforts to disrupt the illicit supply chains as a result of sea-based security operations; cooperation and collaboration between law enforcement organizations.
Nevertheless, legal complexity arises as the high seas “fall outside the jurisdiction of any single state” under the United National Convention on the Law of the Sea (UNCLOS). The ocean space is to be collectively policed by all states governed by principles of Freedom of navigation. Piracy and the illicit trafficking of narcotics, humans, and weapons comprise the main varieties of transnational crime. UNCLOS addresses these matter of concern in the realm of the sea, where various articles provide guidance in order to curb or limit the threats.
Article 110 expounds the customary rule that warships may “approach and visit” on the high seas “any ship that is suspected of piracy, human trafficking, unauthorized broadcasting; and is without nationality”; or, “is flying a foreign flag or refusing to show its flag.” Article 111 addresses the right of “hot pursuit”, allowing warships of one state to follow a vessel through the different maritime zones of the ship if based on “reasonable grounds,” it is suspected of illegal activity.
UNCLOS under Article 108 empowers states to cooperate and offer assistance to suppress drug trafficking by other state-flagged vessels. Traditionally, drug traffickers used overland routes, but since last two decades, they have shifted transportation into the “Indo-Pacific Ocean”. The majority of this trafficking has proliferated in the littoral regions, and often within territorial waters.
In the latter years, advancement in technologies, providing for larger ships have allowed traffickers to move further into the sea to capitalize “blue water” areas, outside the 12-nautical mile mark and at times further than the 200-mile Exclusive Economic Zone (EEZ) of any country. It is a documented fact that U.S. is the world’s largest consumer of illegal drugs, also according to various studies the source and transit zones of drug trafficking between South America and the U.S despite high patrols on the border.
Piracy has been one of the most ancient forms of maritime crime that is treated rigorously under the provisions of UNCLOS. Article 101 defines piracy as “any illegal act of violence or detention, any act of depredation, committed for private ends by the crew or passengers of a private ship or private aircraft on the high seas against another ship or aircraft, outside the jurisdiction of any state.” The latter parts highlights an important aspect that piracy is a type of transnational crime conducted by non-state actors in international waters. Article 105 of UNCLOS grants every state the authority to seize any vessel, associated property and to arrest any persons engaged in piracy. Domestic courts of the state conducting the seizure have the mandate prosecute the pirates under domestic law and determine what to do with the vessels; however, to date the courts remain inadequate or unsupported in many places.
Piracy became a security issue of international concern since the last decade and half, primarily in the Horn of Africa, Gulf of Aden, and the Red Sea largely due to weak patrolling and sea blindness by the littoral states of the region. However, to an extent order at sea has been maintained with the presence Combined Task Force-151(CTF-151), focused on counter-piracy, and Combined Task Force-150 (CTF-150) to combat illicit activities at sea. Supported by several U.N. Security Council Resolutions, these task forces have “engaged with regional partners to build capacity and improve capabilities to protect global maritime commerce and secure freedom of navigation.”
Piracy in the Asia-Pacific remains a matter of concern, however most of the incidents are underreported and those reported are of such small scale that they cloud the assessment of major piracy events. In the region, although piracy has been contained in the eastern region of Africa whereas it has proliferated in the western Africa around the Gulf of Guinea. This subject-matter experts conclude is a result of an increased trafficking in narcotics from Latin America, along with the various other illicit elements involving illegal fishing and human trafficking.
The increased in piracy is a reminder for states that piracy remains a persistent and widespread challenge to maritime security. The recent activities in Somalia and Yemen foreshadow a resurgence of piracy in the region, encouraged by trafficking of light weapons and small arms, along with non-state actor’s unprecedented access to ship monitoring, tracking devices, and use of unmanned systems and long range communications.
United Nations Convention on the Law of the Sea (UNCLOS) identifies only certain types of transnational crime that affect maritime security, but there are many varieties and combinations of criminal activity that affect security and safety from the high seas to internal waters. Domestic laws however need be brought in line with international law, and cooperative partnerships between the states, law enforcement, and militaries to combat illicit activity needs to transcend the morass of politics that are often a hurdle in the way of more comprehensive legal regimes. It is recommended that information and intelligence sharing, along with TTPs (tactics, techniques, and procedures) need to be employed by the maritime forces to ensure freedom of the seas.
UNCLOS provides a strong framework and multilateral efforts to deter criminal activity at sea for a more secure, safer operating environment for all. However, it is the difficulty in effective prosecution and applying of an equitable punishment to the culprits, involved in piracy, human trafficking and illicit drugs that must serve as a reminder to all states that much awaits for an all-inclusive solution.
Zaeem Hassan Mehmood/MD