Drug trafficking at sea: no longer a crime of universal jurisdiction before US Courts?

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Once again, a new maritime drug smuggling case raises interesting questions of international law and its implications for national prosecutions.

Back in 2010 I blogged on Medvedyev: a European Court of Human Rights case finding that an ad hoc agreement between France and Cambodia was an insufficient legal basis for France to prosecute drug smuggler. The agreement for France to board the vessel and assume jurisdiction over the offences discovered was concluded by diplomatic note and valid at international law, but it was a defective basis of jurisdiction in European human rights law because (inter alia) it lacked a required quality of “foreseeability”. (That is, the Cambodian nationals in question could not have predicted they would become subject to French law).

In more recent developments, I am grateful to Ilias Bantekas for drawing to my attention the US Court of Appeals (11th Circuit) decision in US v Bellaizac-Hurtado (6 November 2012).

In this case, acting under treaty authorisation, a US Coast Guard vessel was patrolling in the Panamanian territorial sea. It encountered a suspect drug smuggling vessel. The crew fled ashore and, amusingly, hid in the jungle. Meanwhile, 760 kg of cocaine was discovered aboard their vessel. Pamana waived jurisdiction to allow the US to prosecute the case under Art. IX(2) of the US-Panama Supplementary Arrangement on US Coast Guard Assistance 2002.

In my view, the waiver of jurisdiction in favour of another State prosecuting an offence, as commonly contemplated in US bilateral drug interdiction treaties, is perfectly legal as a matter of international law. The question is whether the US then has a valid claim to jurisdiction over the offence in such cases.

The US has, historically, invoked the objective territorial jurisdiction principle in such cases and asserted jurisdiction to prosecute conspiracies abroad to import controlled substances (e.g. US v. Postal 589 F.2d 862, 885 (1979)).

So far, and so long as you can suggest narcotics are destined for the US, so good. However, US practice has since extended to prosecuting drug smugglers where there is limited evidence their destination was the US.

Relevant US statute law does not require proof of destination, but makes possession with intent to distribute an offence on vessels subject to the jurisdiction of the US. A vessel might become subject to the jurisdiction of the US because it is stateless,* or where jurisdiction is waived in favour of the US under a treaty arrangement.

But does the US Congress have the power to pass such a law? It has constitutional power to the power to define and punish: ‘piracies’, ‘felonies committed on the high seas’ and ‘offenses against the law of nations’. As this wasn’t piracy or conduct on the high seas – is drug smuggling an ‘offense against the law of nations’?

The 11th Circuit says ‘no’ and therefore relevant provisions of the US Maritime Drug Law Enforcement Act.

As a matter of US Constitutional law it held the phrase ‘law of nations’ to be limited to customary international law. While historically US courts have been prepared to accept that drug smuggling is a crime at customary international law based on its universal condemnation and relevant treaty practice – it’s always been a thin argument. I think it would be very hard to come up with much State practice (outside the US at least) involving narcotics prosecutions lacking any ordinary jurisdictional nexus with the prosecuting State. So, on the narrow question it posed itself, I’d say the 11th Circuit is right.

I can’t imagine US government law enforcement agencies will be very happy with the result, however.

I leave it to those more knowledgeable of US Constitutional law to suggest if a different view might have been possible. (I presume re-interpreting ‘the law of nations’ to include treaty law would be a step too far.)

As a side-bar I note the case (inadvertently?) weighs into the piracy debate by suggesting that piracy is limited to ‘robbery on the high seas’. For my views on that old canard, see the post over here.

* Contrary to the position in some civil law systems and much academic commentary, some common-law case law asserts States have jurisdiction over stateless vessels by the mere fact of their being stateless and without any other jurisdictional link to the prosecuting state being necessary.

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Martin Holterman says

November 22, 2012

What the US court said was that drug trafficking was not "an offence against the law of nations" in the sense of being a crime under ICL. This matters because this removes the right of Congress to make drug trafficking punishable under the last part of art. I(8)(10) of the US Constitution. However, Congress may still enact statutes to go after drug trafficking on the High Seas. (In this case the alleged crime was committed in the territorial waters of Panama, which ruled out the High Seas clause.)

Akis Papastavridis says

November 24, 2012

Thanks, Douglas, for flagging up this case. It is certainly a very interesting one, and it seems to run contrary to many other cases of the US courts that even accept the universal jurisdiction character of drug trafficking (e.g. United States v. Salcedo-Ibarra, 2009).
Leaving aside the constitutional dimension of the case, it seems that the Court fundamentally misreads the North Sea Continental Shelf case, especially as regards the creation of custom through a treaty. The prohibition of llicit trafficking in narcotic drugs is of ‘fundamentally norm creating character’, it has been criminalised by the overwhelming majority of the members of international community, which have enforced such laws and therefore widespread practice does exist, while there is certainly strong opinio juris sive necessitatis. In addition, singling out ‘specially affected States’ in this regard is totally misleading, since all States may be affected by drug trafficking. Also, it is noteworthy that it quotes eminent authors, such as Cassese and Kontorovich, to substantiate the argument that there is no international custom; however, what these authors do is simply arguing against the status of drug trafficking as a crime subject to universal jurisdiction and not as customary law.It remains to be seen whether this judgment will be upheld in other judgments of the same or other Circuits.