Analyzing Organized Crime :1

Challenges to seizing drugs at sea in the Indian Ocean

Warships from the Combined Maritime Forces (CMF) Task Force 150 (CTF 150) have seized in excess of 2,000 kg of heroin being trafficked in dhows via the Indian Ocean. African’s highest drug seizure ever - and 130kg by a Canadian warship on 7 April. In 2013, warships operating with CTF 150 seized more than 2,000 kg of heroin being shipped via the Indian Ocean. The heroin appears to be of Afghan origin, and is generally of high purity.

One major route appear to be via dhow from the Makran Coast into East Africa – Tanzania, for example, is clearly a point of entry, and the Tanzanian authorities have also made a number of major seizures over the past year. There are also other Indian Ocean routes – into South East Asia, for example, and via containers as well – Sri Lanka seized 36 kg of heroin hidden in a shipping container.

As the land trafficking routes out of Afghanistan become more difficult, it is likely that the maritime route will continue to grow. This is a concern for a range of reasons, not least of which is that the Taliban is assessed to have derived around US$133 million from the narcotics trade in 2011 – approximately one-third of its funding. This funding source is expected to increase as the Afghan opium crop has grown in 2012 and 2013. The likelihood of increased traffic by sea is thus very high, and carries with it a number of complications - ranging from the link to terrorist financing, through to the capacity of existing law to assist in interdicting these cargoes.

It is upon this latter issue that this short brief concentrates.

The law – in its current state - is of some use, but not a lot. In accordance with the Law of the Sea Convention 1982, as generally paralleled in customary international law, a warship (or other state vessel such as a marine police vessel) can board a vessel outside the territorial seas of any state if it has reasonable grounds for suspecting that the vessel is engaged in a very limited number of activities (such as piracy, or being a stateless vessel – Article 110). However, trafficking in drugs is not one of those grounds. The Law of the Sea Convention 1982 specifically mandates that ‘all States shall co-operate in the suppression of illicit traffic in narcotic drugs and psychotropic substances engaged in by ships on the high seas contrary to international conventions’ (Article 108). But this permission does not allow for boarding vessels flying the flag of another state, even on suspicion of drug trafficking, without the consent of that flag state. This can present a major impediment to a ‘legal finish’ (such as seizure of the dhow, and/or prosecution of the crew) where there is no adequately responsive mechanism for seeking that permission. The 1988 Vienna Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances has an article specifically related to maritime drug interdictions (Article 17), but this does not alter the fundamental rule regarding the requirement for flag state consent to board. Thus unless there is a streamlined process for asking for, and receiving, Iranian or Pakistani consent to board suspected drug trafficking dhows claiming their nationality, the capacity of international maritime law enforcement agents to take any high seas enforcement action is extremely limited.

One exception to this requirement for requesting flag state consent is where the dhow appears to be stateless, or unflagged. The Law of the Sea allows for warships or other maritime law enforcement vessels to board suspected unflagged vessels. It is under this head of power that CTF 150, for example, has been able to board suspected unflagged vessels in the Indian Ocean, in order to check their nationality. It is drugs discovered during this process, primarily, that have been seized and disposed of by CTF 150 units. However, without a further authorisation, most states are understandably unwilling to assert any additional jurisdiction over these vessels beyond such seizures. The dhows, consequently, are then often simply sent on their way.

For the foreseeable future, the high seas maritime law enforcement response to the Indian Ocean heroin route is likely to remain focussed upon seizures from unflagged dhows. There are possibilities for a wider response, but each requires both a champion and an assertion of political will. One option, for example, is for interested states and international organisations to talk with Iranian and Pakistani authorities about a streamlined system for requesting and receiving flag state consent to board suspected drug trafficking dhows claiming their respective nationalities. Given the plain fact that more extended forms of legal finish - such as sharing evidence for prosecutions - will likely run up against a range of legal issues, grasping this nettle could, at the very least, facilitate seizures from a wider pool of suspect vessels. Another option – perhaps leveraging off existing UN Security Council resolutions and conventions regarding terrorist financing – might be to create an appropriate authorisation for extended seizure operations against vessels suspected of facilitating Taliban funding via their involvement in the Indian Ocean heroin route. This may open up some options for third state prosecutions, for example. A third option – challenging in terms of co-ordination and available enforcement assets, but worth considering – is to facilitate greater information sharing between and amongst concerned states, so that interdictions can be made by coastal states at the point of departure or entry. Yet even this option carries with it a number of legal hurdles to be negotiated, such as understandings as to the uses to which shared information will be put, and the possible consequence of prosecutions where death penalties may be an option.

Perhaps we simply need to accept these constraints, and remain focused on the partial solution we currently have in terms of seizures from unflagged dhows. But if our aim is to reduce the attraction of this Indian Ocean trafficking route, this status quo response will not serve the purpose.