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I. Drug Trafficking at Sea: the Case of R. v. Charrington and Others

Published online by Cambridge University Press:  17 January 2008

William Gilmore ,
Colin Warbrick  and
Dominic McGoldrick
William Gilmore
Affiliation:
Faculty of Law, University of Edinburgh.
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Extract

In 1991 the United Kingdom became a Party to the 1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, one of the purposes of which is “to improve international co-operation in the suppression of illicit traffic by sea”.1 Article 17 of that Convention has, as its central purpose, the establishment of international standards, procedures and practices designed to facilitate the obtaining of enforcement jurisdiction whereas Article 4 addresses the closely associated issue of prescriptive jurisdiction.2 The Criminal Justice (International Co-operation) Act 1999 contains a number of provisions of relevance in this latter context. These include the taking of extraterritorial jurisdiction over certain drugs offences taking place on board the vessels of other Convention parties.3

Type
Current Developments: Public International Law
Information
International & Comparative Law Quarterly , Volume 49 , Issue 2 , April 2000 , pp. 477 - 489
Copyright
Copyright © British Institute of International and Comparative Law 2000

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References

1. Preamble. The text is reproduced in (1989) 28 I.L.M. pp.497et seq.Google Scholar

2. See Art.4(1)(b)(ii).

3. 1990, c.5 (UK). See ss.19–21 and Sched.3. See also the Criminal Justice Act 1993, c.36 (UK), s.23.

4. See e.g. Dean and Bolden ] 2 Cr.App.R. 171 where the Court of Appeal subjected Art.17 to a somewhat controversial interpretation.

5. Unreported. But see Real-Tune Transcription of the Stenographic Notes [hereafter Transcript], Day 18, pp.1018–1051.

6. See e.g. Transcript, Day 9, p.324, and Day 15, p.784.

7. See HM Customs & Excise, News Release of 11 Feb. 1999 entitled “Operation Teak: Independent Inquiry”.

8. Inquiry into HM Customs and Excise Aspects of The Simon de Danser Case: Report by Sir Gerald Hosker KCB QC (1999) [hereafter Repor], para.1. It is unclear why those on board were not charged under s.19(2) of the 1990 Act under which there is no requirement to prove that the drugs were bound for the UK. See e.g. R. v. Wagenarr, R. v. Pronk(1996) Times Law Reports 402. Efforts by the Crown to amend the indictment to this effect failed. See Report, para.5. Consequently the issue of the intended destination of the ship assumed major importance. See e.g. Transcript, Day 18, pp.1018, 1022, 1031 and 1051.

9. Transcript, Day 18, p.1018.

10. Subject to analysis in this issue at pp.489–496.

11. Transcript, Day 18, p.1051.

12. It was also the subject of much media interest. See e.g. The Times (London) 5 02 1999, p.3Google Scholar, and The Sunday Telegraph (London) 17 05 1998, p.13.Google Scholar

13. See supra n.8.

14. By accession in Feb. 1996.

15. See generally, United Nations, Commentary on the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988 (1998) [hereafter Commentary], at pp.323–345.Google Scholar

16. Similarly s.20(2)(b) of the 1990 UK Act, as amended, requires the authorisation of the UK.

17. Commentary, p.335.

18. See United Nations, Competent National Authorities under the International Drug Control Treaties (1995), at p.89.Google Scholar

19. The agency listed had become defunct.

20. Transcript, Day 12, p.602.

21. Transcript, Day 18, p.1024.

22. See Report, para.18.

23. See e.g. idem, at paras.13–14.

24. See e.g. Transcript, Day 9, p.319.

25. See e.g. Transcript, Day 15, p.829.

26. See generally, supra n.5.

27. See Vienna Convention on the Law of Treaties, Art.2(1)(a). The framework provided by Art. 17(3) and (4) is clearly intended to result in the creation of relationships between States governed by international law. See e.g. supra nn.15 and 16 and related text Note that under para.6 the flag state may subject its authorisation to conditions. For a view of the nature of the resulting relationship see e.g. Commentary, at p.338. For US judicial authority that even an ad hoc consent from a flag state prior to the conclusion of the 1988 Convention fell within the treaties exception to exclusive flag state jurisdiction contained in Art.6(1) of the 1958 Geneva Convention on the High Seas, see e.g. US v. Green 671 F.2d 46 (1982), at 50–51. But see supra n.4, at pp.182–183.

28. See, e.g., Jennings, R. and Watts, A. (eds.), Oppenheim's International Law (9th ed.: 1992), Vol. 1, pp. 1285–1288.Google Scholar

29. See e.g. (1966) Yearbook of the International Law Commission, Vol.II, at pp.240–242.Google Scholar

30. Vienna Convention, Art.46(2).

31. See e.g. Transcript, Day 11, p.484.

32. See Transcript, Day 18, p.1031.

33. See Report, paras. 9 and 14.

34. Reproduced idem, at para.10.

35. See idem, para.21.

36. See e.g. Transcript, Day 18, p.1026.

37. See Report, para.33.

38. See idem, paras.34–36.

39. See Transcript, Day 18, p.1021. A further issue raised by the defence was whether a request under Art.17 could properly be made when the vessel was not in international waters. This point was conceded by the Crown. See e.g. Transcript, Day 17, p.966. The present writer provided the Hosker inquiry with a contrary view; namely, that properly construed Art.17 did not preclude the making of a request when the target vessel was in the territorial sea or internal waters of a State but that the same Art. only envisaged action pursuant to authorisation being taken in international waters. See Report, para.29.

40. See e.g. Transcript, Day 18, p.1028. For an instance in which similar wording was utilised see supra n.4, at p.174.

41. See Report, para.20(1).

42. See e.g. Transcript, Day 10, p.458.

43. See idem, Day 18, p.1028.

44. Commentary, p.337.

45. Sec idem, at pp.337–338.

46. Published by the Council of Europe under the title Agreement on Illicit Traffic by Sea implementing Article 17 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances and Explanatory Report (1996).

47. It had, at the relevant time, been neither signed nor ratified by Malta.

48. Text kindly provided by HM Customs and Excise. Its terms were, with one minor modification, agreed with the Crown. See Transcript, Day 15, pp.751–752. It was positively viewed by the judge. See idem, Day 18, p.1040.

49. See also para.9 of the opinion.

50. See e.g. Transcript, Day 16, pp.876–879; and. Day 18, p.1044.

51. McDade, P., “The Interim Obligation between Signature and Ratification of a Treaty” (1985) N.I.L.R. p.5, at pp.10–11Google Scholar. See also Sinclair, I., The Vienna Convention on the Law of Treaties (2nd ed.: 1984), at p.43.Google Scholar

52. See e.g. supra n.46, at pp.36–37 relating to Art.2 of the Agreement. For a more detailed summary of the views of the writer see Report, para.30.

53. See Report, para.31.

54. The parties agreed that para.2 of the expert opinion, supra n.48, correctly reflected the meaning of this terminology; namely, navigation upon the high seas and “within the vessel's exclusive economic zone”. But see Commentary, at pp.326–328.

55. See e.g. Report, para.20(2).

56. Transcript, Day 18, p.1025.

57. Report, para.49.

58. Vienna Convention, Art.48(1). See also supra n.29, at pp.243–244.

59. See e.g. Transcript, Day 12, at pp.543–544 and 570–571.

60. Idem, Day 18, p.1027.

61. Idem, at p.1028.

62. See Art.48, Vienna Convention on the Law of Treaties. See also supra n.29, at pp.243–244.

63. On the absence of an obligation to do so, see e.g. supra n.28, at p.1294.

64. See Vienna Convention on the Law of Treaties, Art.69(2). For the background see e.g. supra n.29, at pp.264–265. One defence Counsel raised the possibility of classifying the consent of Malta as having been procured by fraud. See Transcript, Day 15, p.808. In such cases the ground for invalidity must still be invoked. See Vienna Convention Art.49. However, the party whose fraud has occasioned the nullity may not rely on the good faith protection. See Art.69(3).

65. Reproduced in Report, para.10. Authorisation was also sought “\t]o use reasonable force, if necessary…”. For a recent analysis of relevant international rules in this context see the 1 July 1999 judgment of the International Tribunal for the Law of the Sea in The M/V “Saiga” (No. 2) Case, St Vincent and the Grenadines v. Guinea, at paras.153–159. Reproduced in (1999) 38 I.L.M., at pp.1323 et seq.

66. See Transcript, Day 9, at p.324; and Day 15, at p.784.

67. See e.g. idem. Day 18, at pp.1042–1043.

68. See e.g. idem. Day 17, at p.966.

69. See Report, at para.45.

70. See United Nations Conference for the Adoption of a Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1991) [hereafter Official Records], Vol.I, at pp.154–155.Google Scholar

71. See idem, at p.156.

72. See Commentary, at p.333. See also Official Records, Vol.I, at p.157; and Vol.II, at pp.309–314.

73. For the similar approach taken in the Council of Europe Agreement see supra n.46, Art.11(2).

74. Nandan, S. and Rosenne, S. (Eds), United Nations Convention on the Law of the Sea: A Commentary (1995), Vol.III, p.221.Google Scholar

75. See e.g. Oxman, B., “The Regime of Warships Under the United Nations Convention on the Law of the Sea” (1984) 24 Virginia Journal of International Law, p.811, at p.827Google Scholar; and Reuland, R., “The Customary Right of Hot Pursuit onto the High Seas: Annotations to Article 111 of the Law of the Sea Convention” (1993) 33 Virginia Journal of International Law, p.557, at pp.561–564.Google Scholar

76. See Art.110(1)(2) and (5). For the definition of “warship” see Art.29.

77. The latter also includes the use of the word “specially”. See also, Reuland, op. cit., at p.56Z

78. Supra n.74, at p.222.

79. Art.111(4). See also The M/V “Saiga” (No. 2) Case, supra n.65, at paras. 141, 147–148, and 152.

80. See also Art.2(2) of the 1995 Council of Europe Agreement, supra n.46.

81. IX, 2. The text was prepared by UNDCP and published by the UN in 1999. It is said, at p.xii, to be “based on the best practices of a number of countries which have built up considerable expertise in the area of maritime drug law enforcement”.

82. Transcript, Day 15, p.765.

83. See generally, supra n.5.

84. Idem, p.1051.

83. Idem.

86. Idem, p.1050.

87. See e.g. idem, at p.1037.

88. See Report, para.68(2).

89. Idem, para.68(1).

90. Idem, para.71.