SUPPRESSION OF THE ILLICIT TRAFFIC IN NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ON THE HIGH SEAS: SPANISH CASE LAW

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References

1. On its consideration as delicto iuris gentium, see U. Leanza, "L'evoluzione delle norme internazionali in materia di prevenzione e di repressione del trafico illecito degli stupefacienti in alto mare", in Le droit international a I'heure de sa codification,. Études en l'honneur de Roberto Ago, 4 vol., vol. II, Milano, 1987, 241-279, pp. 260-262. 2. M. Cherif Bassiouni, "The International Narcotics Control Scheme", in M. Cherif Bassiouni (Ed.), International Criminal Law, 3 vol., vol.1. Crimes, New York, 1986, 507-524, pp. 507. 3. In this connection, it should be stressed that, on the one hand, the 1958 Geneva Convention on the High Seas does not address this issue; and, on the other, the texts drafted under the aegis of the United Nations to suppress this illicit traffic in narcotic drugs and psychotropic substances do not include appropriate and sufficient provisions to suppress this traffic on the seas: see the Single Convention on Narcotic Drugs of 30 May 1961, as amended by the Geneva Protocol of 25 March 1972 (BOE 22 April 1966, 26 April and 8 November 1967, and 27 February 1975); and the Convention on Psychotropic Substances of 2I February 1971 (BOE 10 November 1990). See also C.-H. Vignes, "La Convention sur les substances psychotropes", AFDI, vol. XVII (1971), 641-656, pp. 644-656.

4. BOE 14 February 1997. Cursive by the author. 5. T. Treves, "Intervention en haute mer et navires 6trangers", AFDI, vol. XLI (1995), 651-675, p. 653; and L. Lucchini, M. Voelckel, Droit de la mer, 3 ts., t. II, vol. II, Navigation et Piche, Paris, 1996, pp. 148-150. 6. C. Jimenez Piemas, "Competencia territorial del Estado y problemas de aplicaci6n del Derecho del Mar: practica espanola", Anuario IHLADl, vol. 12 (1995), 233-278, p. 268. 7. In this connection, see art. 110 of the Convention, which acknowledges the right of warships of any State to board foreign ships when there are reasonable grounds for suspecting that such ships engage in piracy or the slave trade, odious practices repudiated by international society. As for Spanish diplomatic practice with respect to the right to board foreign vessels on the High Seas in peace time, in order to suppress the slave trade, see J. D. Gonzalez Campos, "El caso del 'Virgen del Refugio' (1864) y el derecho de visita en alta mar", REDI, vol. XXI (1968), 4-36, pp. 26-36. 8. It is worth recalling that the boarding of the Honduran flagship Fidelio, loaded with several tonnes of hashish, by the Italian authorities on the High Seas in 1986, was declared illicit under International Law by the Court of Appeal of Palermo in a judgment of 30 June 1992 affirmed by the supreme appellate tribunal. The Court dismissed the intention to form a general common practice to legitimise State intervention on the High Seas in order to suppress drug trafficking carried out by vessels belonging to other States. The Court considered that international practice in this field was scanty and insufficient, consisting only of precedents relating to the actions of US authorities: See text of the Judgment of the Court ofAppeal of Palermo in Rivista, vol. LXXV ( 1992), pp. 1081-1093, particularly pp. 1090-1001; and T. Scovazzi, "La cattura della nave Fidelio", Id., 1015-1022, pp. 1018-1020.

9. T. Treves, "Codification du droit international et pratique des Etats dans le droit de la mer", R. des C., t. 223 (1990-IV), 9-302, pp. 221-222. 10. See Preamble to the Convention and art. 2.1 in BOE 10 November 1990; and F. Rouchereau, "La Convention des Nations Unies sur le trafic illicite de stupefiants et de substances psychotropes", AFDI, vol. XXXIV (1988), 601-617, pp. 601-602. 11. T. Treves, "Intervention en haute mer et navires 6trangers", loc. cit,., pp. 655-656; and J.-P Queneudec, "Chronique du droit de la met, AFDI, vol XXXIV (1988), 726-734, p. 731. 12. This is therefore a cooperation mechanism built on the basis of respect for the principle of exclusive jurisdiction of the flag State, which remains free to authorise the intervention or not, depending on the information it receives. It can furthermore subject its authorisation to conditions agreed with the requesting party; however, article 17.7 obliges it to respond expeditiously to the requests to determine whether the vessel is entitled to fly the flag and to authorise intervention: see M. I. Lirola Delgado, "La represi6n del trafico ilicito de drogas en alta mar. Cooperacion internacional y practica estatal", ADI, vol XII (1996), 523-576, pp. 533-534.

13. Art. 17.4 c) of the Convention. 14. F. Rouchereau, "La Convention des Nations Unies contre le trafic illicite de stupefiants...", loc. cit., p. 614; W C. Gilmore, " Drug trafficking by sea. The 1988 United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances", Marine Policy, vol. 15 (1991), 183-192, p. 190. 15. See art. 58.1 of the Conventions on the Law of the Sea and T Treves, "La navigation", in R.-J. Dupuy, D. Vignes (Eds.), Traiti du nouveau droit de la mer, Paris, 1985, 687-808, pp. 690-692. This claim is corroborated by para. 11 of art. 17, according to which the action taken shall take due account of the need not to interfere with or affect the rights and obligations and the exercise of jurisdiction of coastal States in accordance with the International Law of the sea: see W C. Gilmore, "Drug trafficking by sea...", loc. cit, ., pp. 187-188, and T. Treves, "Intervention en haute mer...", loc. cit., pp. 656-657. 16. See art. 3 of the Convention, which establishes that the obligation of the States Parties is to establish as criminal offences a series of activities related to the production and trafficking of narcotic drugs, referring specifically in para. a) i) to the "brokerage, dispatch, dispatch in transit, transport, importation or exportation of any narcotic drug or any psychotropic substance contrary to the provisions of the 1961 Convention, the 1961 Convention as amended or the 1971 Convention". 17. Art. 4.1 a) ii).

18. Art. 4.1 b) ii). 19. See text in RGDIP, vol. 99 (1995), pp. 212-228; and W C. Gilmore, "Narcotics interdiction at sea. The 1995 Council of Europe Agreement", Marine Policy, vol. 20 (1996), 3-14, pp. 3-4. 20. Pursuant to art. 27.3, this Agreement requires three ratifications in order to enter into force, and by 28 March 2000 it had been ratified by Germany, Norway and Cyprus, and will come into force on 1 May 2000. 21. See Preamble, para. 6, and art. 2.2. As an expression of this link between the two texts of the conventions, it should be stressed that participation in the 1995 Agreement is, in principle, restricted to the member States of the Council of Europe which are Parties to the 1988 Convention (art. 27.1 and W C. Gilmore, "Narcotics interdiction...", loc. cit., p. 4). 22. Art. 30.2.

23. Arts. 6 to 8 of the Agreement, and M. I. Lirola Delgado, "La represi6n del trifico de drogas en alta mar loc. cit., pp. 539-541. 24. See art. 7 and art. 21, which lays down the content of the request for authorisation, including, inter alia, the request for confirmation of the vessel's registration, notification of the measures the State intends to adopt and guarantees that these measures could likewise be adopted if the ship were flying its flag. 25. See art. 9, according to which the adoption of these measures may be made subject to conditions that can be established by the flag State in its authorisation (art. 8). 26. Art. 10. 27. Art. 3.2. 28. Arts. 13.1, 14.1 and 2 and W C. Gilmore, "Narcotics interdiction..:', loc.cit., pp. 13-14.

29. In this connection, in recent years (since 1990), Spain has signed cooperation agreements with the former USSR (BOE 23 November 1990), Turkey (BOE 2 December 1991), the United States (BOE 8 April 1993), Venezuela (BOE 27 March 1998), Bolivia (BOE 3 April 1998), Chile (BOE 21 May 1998), Mexico (BOE 26 June 1998), Malta (BOE 30 July 1998), Cuba (BOE 30 December 1998), and Panama (BOE 20 July 1999). 30. The text of the Treaty, in force since 7 May 1994, can be found in BOE 6 May 1994. 31. See M. 1. Lirola Delgado, "La represi6n del trafico ilicito..:', loc. cit., pp. 55cm560. 32. On this point, art. 5. 1 states that the intervention is carried out on behalf of the flag State. This indication has been criticised by some authors, who question its conformity with International Law, since the Treaty does not refer to third States with respect to which the actions of the intervening State should be regarded as being carried out by the flag State: see R. Adam, "La repressione del traffico de droga via mare in un recente trattato italo-spagnolo", La Comunita Intemazionale, vol. XLVIII ( 1992), 348-382, p. 357.

33. Such actions, of which the flag State should be informed before they are adopted, if possible, or immediately after being performed, include the possibility of pursuit and boarding of the vessel, verification of documents and questioning of persons found on board; and, if there are still grounded suspictions that the vessel and/or the persons found on board are involved in illicit activities, the ship may be inspected and any drugs found seized, and the persons implicated arrested and the vessel escorted to the nearest suitable port (art. 5.2). 34. Specifically, "possession with a view to the distribution, transport, transfer, deposit, sale, manufacture or processing of narcotic drugs or psychotropic substances as defined in the international instruments that bind the Parties"; attempts, aiding and abetting and concealment are likewise punishable. 35. Art. 4.2. 36. See sups 1.B). 37. For this purpose, art. 6.2 of the Treaty establishes the obligation of the flag State to examine the request in good faith, bearing in mind differentcriteria when adopting its decision, such as the site of seizure, ease of access to evidence and the nationality and residence of those implicated, as these criteria may be conducive to waiver of jurisdiction in favour of the intervening State. In this connection, it is interesting to point out that the flag State has a period of 60 days from receipt of the request to notify of its decision, on the understanding that failure to answer within this period indicates waiver of jurisdiction (art. 6.4). The possibility of waiver is also included in the 1995 Council of Europe Agreement, though the latter establishes a period of 14 days. 38. In this connection, it is interesting to underline the important results of the bilateral cooperation recently carried out by the United States, a major naval power, with the Caribbean States, which are a key transit zone for drugs from South America on their way to the United States - a third of the drugs that are smuggled into the US cross the Caribbean area - and Europe. These results translate specifically into the adoption of treaties that develop and improve on the provisions of art. 17 of the 1988 United Nations Convention. One such instrument that is worthy of mention owing to its importance is the 9 November 1991

Agreement with Venezuela and its Protocol of 23 July 1997 regulating the action of one Party with respect to the other's flagships, after obtaining authorisation from the flag State, which should be given within just 2 hours (arts. 2 and 4: text provided by the US Department of State). The US has likewise concluded cooperation agreements with Jamaica, on 2 May 1997, and Barbados, on 25 June 1997, which furthermore include the establishment and implementation of assistance programmes and joint operations by the Parties in order to suppress illicit maritime traffic in drugs (arts. 5-12 and arts. 3-4, respectively: text provided by the US Department of State). Both texts, in force since 1998, were negotiated shortly before the Bridgetown (Bati�ados) Summit which brought together the US and fifteen Caribbean States on 10 May 1997 and ended in the adoption of a Declaration of "Partnership for Prosperity and Security in the Caribbean" and an Action Plan that expressly addresses the need to enhance cooperation to combat illicit traffic in drugs in the Caribbean area: ILM, vol. XXXVI (1997), pp. 792-806. 39. See Ar. Rep. J. 1987, n. 1550, pp. 2390-2402. 40. See art. 6.1 of the 1958 Geneva Convention on the High Seas and art. 92.1 of the 1982 Convention on the Law of the Sea, which establish the subjection of vessels on the High Seas to the exclusive jurisdiction oftheflag State; and arts. 4 and 5. l.b) of the 1988 United Nations Convention against the illicit Traffic of Narcotic Drugs and Psychotropic Substances, which refer to the adoption of measures by the States Parties to establish their jurisdiction with respect to the offences envisaged in the Convention, and to authorise the seizure of substances of this kind. The competence of Spanish jurisdiction in these cases is based on art. 23.4.f) of the Ley Orgdnica del Poder Judicial (Organic Law on Judicial Power, LOPJ) which adopts the principle of universality in connection with the suppression of the offences established by Spanish criminal law of illicit traffic in narcotic drugs and psychotropic substances. 41. In this connection, the Judgment of the Supreme Court states: "Nor can the search of the vessel on which the cocaine was found be considered null and void. The evidentiary facts establish that the vessel 'Rand' was not flying any flag... In this case it was not necessary to request any authorisation to board the vessel from the flag State ... because it was not sailing with any flag or with any documents relating to any State whatsoever and, furthermore, the persons on board the ship were Spanish nationals...". (Ar. Rep. J.

1997, u. 1550, Fifth Legal Ground, p. 2394). 42. The Audiencia Nacional specifically states: "... pursuant to art. 5 of the Geneva Convention (and in accordance with art.91 of the UN Convention) the nationality of the vessel should be determined by that of the State whose flag it is flying. And that nationality could not be ascertained externally because ... it lowered the Colombian flag as soon as it left Colombian jurisdictional waters; and because it did not display any other signs of identity other than the name 'Bongo', which did not figure in the international registers.... On the basis of lack of knowledge of the nationality, inspection of the vessel ... is provided for in art. 17 of the 1988 Convention (and in arts. 108 and 110 of the 1982 Convention)": Judgment 9 July 1993 (Criminal Division, Section 1), n. 27/93, Sixth Legal Ground, pp. 15-16. 43. See Ar. Rep. J. 1995, n. 6959, pp. 9316-9317, particularly the First Legal Ground, and the commentary by C.E Fernandez Beistegui, in REDI, vol. XLVIII (1996), pp. 179-183. 44. Nonetheless, the vessel previously possessed a Danish flag and, when officials of the Customs Surveillance Service made the seizure, it was loaded with over 1,300 kg of very pure cocaine, was not flying a flag, displayed a different name (Wm�guarc�, and lacked the minimum documents required on board. 45. Judgment ofthe AudenciaNacional, 28 July 1995, n. 33/95 (Criminal Division, Section 1). 46. Ar. Rep. J. 1998, n. 1746, pp. 2709-2712, particularly the Second Legal Ground, pp. 2711-2712. 47. See BOE 14 March 1997, Sup. (Judge: Julio D. Gonzalez Campos).

48. Art. 6 of the Geneva Canvention and art. 92 of the Comention on the Law of the Sea. 49. See supm 1.A). 50. See supm 1.B). 51. See Third Legal Ground, para. B. In this case, the written record of diplomatic confirmation from the Embassy of Panama in Madrid is a particularly significant data bearing in mind that in the aforementioned judgments of the Supreme Court, permission from the flag State to board, search and arrest a foreign vessel on the High Seas had always been granted verbally, or else the only record of such permission was through references from the Spanish authorities (Cases involving the vessel Martere, Judgment of 28 February 1998, and the Grisu, Judgment of 2 October 1995).

52. See Judgments ofthe Supreme Court, 21 July 1987, First Legal Ground (Ar. Rep. J. 1987, n. 5603, p. 5318) and 10 February 1997, Fifth Legal Ground (Ar. Rep. J. 1997, n. 1550, p. 2394). 53. C. Jimenez Piernas, "Competencia territorial del Estado y problemas de aplicacion del Derecho del Mar...", loc. cit., pp. 245-248. With regard to the criminal liability of the individuals implicated in these activities, it should be pointed out that the illicit traffic in narcotic drugs was established in art. 25 of the Draft Code of Crimes against the Peace and Security of Mankind provisionally approved in 1991 by the International Law Commission at first reading (ILC Yearbook 1991-H (Part 2), para. 176). Nonetheless, the final text approved by the Commission in 1996 (UN Doc. A/51/10, pp. 15-129), contains no references to the consideration of these activities among the offences regulated by the new Code. In addition, of the cases of offences over which the International Criminal Court recently set up by the Statute of Rome is to exercise its jurisdiction, offences relating to the illicit traffic in narcotic drugs and psychotropic substances are not included, though they are referred to in the scope of the Draft Statute drawn up by the ILC in 1994 (art. 20.4.e) and Annex): see ILCYearbook 1994-11 (Part 2), para. 91, and ILM, vol. XXXVII (1998), pp. 999-1069.

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