HUMAN RIGHTS AND MARITIME LAW ENFORCEMENT.

• Author: Wilson, Brian

INTRODUCTION 244 I. THE UNIQUE MARITIME OPERATING ENVIRONMENT 246 II. APPLICABLE HUMAN RIGHTS LAW 250 III. DRUG TRAFFICKING 261 A. Background 261 B. Discussion 263 IV. PIRACY 269 A. Background 269 B. Discussion 270 V. MARITIME MIGRATION 287 A. Background 287 B. Discussion 290 VI. FISHERIES ENFORCEMENT 300 A. Background 300 B. Discussion 301 VII. USE OF FORCE 313 CONCLUSION 316 INTRODUCTION

After German Special Forces rescued mariners aboard a hijacked cargo ship and detained ten suspected pirates, a transfer arrangement was diplomatically brokered with Kenya. (1) In other cases over the past five years, the Dutch Navy transported five suspected Somali pirates to Rotterdam for prosecution and the French Navy interdicted drug traffickers operating off the African coast carrying 3.2 tons of cocaine. (2) In all three instances, courts found that government responses violated the suspects' human rights. (3)

Judges are now ruling on maritime law enforcement (4) issues previously under the sole ambit of government officials and operational commanders. (5) Questions with a potential human rights focus include how long a suspect may be detained aboard a warship, whether a warship is compelled to operate at an accelerated speed when transporting suspects ashore, when lethal force may be employed, and under what circumstances government officials may destroy a vessel.

Courts have repeatedly addressed human rights in the context of economic and social issues, education, civil and political rights, the environment, and in armed conflict. (6) But more than a dozen judicial rulings issued primarily in Europe and Africa following maritime interdictions between 2009 and 2015 (7), signal a new period in jurisprudence. (8) Moreover, even States that do not explicitly use the term "human rights" in national-level court opinions or legislation are now addressing issues related to humane and fair treatment in the context of maritime law enforcement. Because of integrated operations, such as those involving combined task forces, multinational coalitions, bilateral partnering, and ship-rider agreements,'' recent decisions--regardless of location--have relevance across the globe.

The benefits of protecting human rights are well documented and beyond the scope of this Article. (10) Moreover, a question that surfaced in past generations--whether human rights apply on the water--is no longer the salient issue. Rather, courts, governments, and deployed naval forces are now confronting the issue of harmonizing human rights with the inherent challenges of high seas maritime law enforcement interdictions. " It is an urgent issue today not just because of increased judicial attention or because certain terms that have no uniformly, internationally accepted definition are populating bilateral and multinational documents. It is an urgent issue because no consistent approach to harmonizing human rights obligations with operational exigencies necessary in maritime law enforcement exists. (12)

Medvedyev v. France, a European Court of Human Rights case, highlights the struggle of balancing human rights obligations with maritime law enforcement operations. (13) The French government's position in the case, summarized by the Strasbourg court, emphasized that "the unpredictability of navigation and the vastness of the oceans made it impossible to provide in detail for every eventuality when ships were rerouted." (14) A joint partial dissent, however, noted that regardless of operational challenges, the court should not "endorse unnecessary abridgements of fundamental human rights in the fight against [drug trafficking]. Such abridgements add nothing to the efficacy of the battle against narcotics but subtract, substantially, from the battle against the diminution of human rights protection." (15)

The legal, policy, and operational challenges the Grand Chamber addressed in Medvedyev are emblematic of an emerging body of law. This Article examines the application of human rights on the high seas, the ocean's unique operating environment, and the patchwork of rulings following maritime interdictions. The four primary focus areas of this Article--the response to drug trafficking, piracy, maritime migration, and illegal fishing--provide an instructive prism to identify judicial trends and distill common themes. This Article also evaluates whether multilateral instruments, largely developed before expanded maritime law enforcement operations, provide sufficient guidance to address contemporary issues, such as whether a warship detaining a suspect on the high seas must be outfitted with a video link to facilitate secure communications with a public defender. This Article concludes by discussing issues likely to be addressed by policy officials, military commanders, and jurists over the next decade and provides a roadmap for a consistent approach to upholding human rights while ensuring that those who commit criminal acts on the water are held legally accountable.

1. THE UNIQUE MARITIME OPERATING ENVIRONMENT

   The oceans are geographically, jurisdictionally, and operationally distinctive. The maritime space includes concepts such as "flag state," "port state," "coastal state," zones or areas such as the "territorial sea," "contiguous zone," "exclusive economic zone" (EEZ), and the "high seas." The authoritative instrument for maritime issues is the United Nations Convention on the Law of the Sea (LOS Convention). (16) Other relevant treaties in maritime law enforcement operations include, inter alia, the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (Vienna Drug Convention), (17) the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA Convention), (18) and its Protocol. (19)

   A key maritime law enforcement concept is the general principle of exclusive flag state jurisdiction, which provides that vessels sail under one country's flag, and are subject to the exclusive jurisdiction of that country. (20) Generally, only the flag state may take enforcement action on the high seas against a vessel under its registry. The concept of exclusive flag state jurisdiction is widely recognized, though it is more accurately characterized as "quasi-exclusive" (21) in view of authorities that could support a maritime law enforcement boarding of a foreign-flagged vessel on the high seas or the exercise of jurisdiction. (22)

   Authorities that could support boarding a foreign-flagged vessel include, among others:

   a flag State's prior consent; a flag State's favorable reply to a boarding request; a bilateral or regional agreement or treaty; a United Nations Security Council Resolution (U.N.S.C. Resolution); a master's consent; a condition of port entry; or where reasonable grounds exist for suspecting that the ship is engaged in piracy, slave trade, unauthorized broadcasting, or is without nationality. (23) Exceptions to the "quasi-exclusive" principle of flag state jurisdiction (separate from boarding authorities) include: crimes of universal jurisdiction, such as piracy; actions taken under the authority of a U.N. Security Council resolution; and when a flag state waives jurisdiction and permits another state to exercise jurisdiction over the ship. (24)

   Freedom of the seas (25) is a fundamental element of the unique maritime environment. (26) Consistent with the quasi-general principle of exclusive state jurisdiction, vessels are largely free from interference on the high seas (27)--seaward of the twelve nautical mile territorial sea. Legitimate shipping depends upon this freedom to annually move millions of containers along with tons of cargo and goods. (28) Criminals and transnational criminal organizations (TCOs) also exploit the freedom inherent in this operating space to transit anonymously, carry illicit cargo, and conduct attacks at sea.

   To combat illicit high seas activity, maritime law enforcement could employ multiple distinct, intersecting, and complementary lines of effort: Action prior to an interdiction, right of approach/boarding, detention, and the assertion of jurisdiction.

   Acquiring information that supports situational awareness prior to a boarding is a key enabler of effective maritime law enforcement. Such capabilities may include "radar, photo, audio and video monitoring... [that supports the interception of] radio and cellular phone communications, maybe e-mails...."

   A maritime interdiction is fundamentally different from operations on land and includes unique environmental factors--such as unpredictable weather and sea state conditions--as well as other distinctive operational considerations. "Weather is more punishing on the open water because it comes from above and below," according to a mariner, adding that severe weather on the high seas is similar to "experiencing an earthquake and a hurricane at the same time." (30) Issues for a boarding officer operating in this challenging environment could include safely inspecting containers on a moving platform, ensuring connectivity while on a vessel of interest, as well as inspecting the ship's crew, its cargo, and potentially, the vessel itself. Interdictions present yet another layer of complexity if cargo, such as cocaine, is jettisoned, or if the vessel is scuttled or intentionally set on fire. Though uncommon, maritime law enforcement officers have been killed and seriously injured during boardings. (31)

   Other maritime law enforcement challenges include the frequent lack of back-up support and the ability of suspect vessels to evade detection because of their profile, low radar signature, or nighttime operations. Even after addressing operational (and potentially significant logistical, materiel, and medical) issues, legal considerations include: Resolving jurisdictional issues; ensuring an evidentiary chain of custody on a platform that may not have a secure storage space; obtaining witness...