This article is written by Abhinav Kumar, a final year student of B.com LLB at the University of petroleum and energy studies, Dehradun. 

Background

The United Nations Office on Drugs and Crime (UNODC)has really been working to protect the worldwide against drugs, organized crime, corruption, and terrorism for more than two decades. By addressing these risks and fostering peace and long-term well-being as deterrents to them, we are committed to achieving health, security, and justice for all. Because the scope of these issues is frequently too large for states to address on their own, the UNODC provides practical help and advocates transnational methods to action. Through our global program and network of field offices, we accomplish this in every corner of the globe.

The Office is dedicated to assisting the Member States in achieving the 2030 Agenda for Sustainable Development, which is centred on the Sustainable Development Goals (SDGs), 2030.

agenda emphasises that the rule of law, equitable, efficient, and humane justice systems, and heal the oriented approaches to drug use are both facilitators and components of sustainable development.

Maritime crime and piracy

Maritime crime puts seafarers’ safety, international trade, and regional stability at risk. Maritime crime can have catastrophic economic consequences because over 90% of global trade is carried out by the sea. Maritime piracy encompasses not just criminal conduct directed towards ships or other maritime facilities, but also the use of the high seas to commit transnational organized crimes such as the trafficking of people or illegal drugs. 

Responding to threats to maritime security 

States are given rights and responsibilities inside each marine zone that allow them to respond to a variety of maritime crimes and other illegal behaviors. In accordance with the coastal State’s authority over these seas, a State’s national criminal law would typically apply to the territorial sea and internal waters. The coastline state’s sovereignty allows it to take action against vessels involved in terrorism, transnational crimes (such as drug trafficking and human smuggling), willful pollution, illegal fishing, and information gathering. The illegal activity would come under Article 27 of the LOSC, and the conduct in issue would only be a breach of foreign-flagged vessels’ right of innocent passage in the maritime boundary. Because warships as well as other state vessels engaged on non-commercial operations are subject to sovereign immunity, the coastal region can only take limited playing time against them.

In the economic zone, the coastal region has the authority to intervene and punish fiscal, immigration, sanitation, and custom offences under certain situations. These rights enable a coastal State to respond to certain marine security risks, such as drug or arms trafficking, which are considered customs offences, and people smuggling, which is considered an immigration violation. Coastal State action against additional marine security risks in the economic zone would be controlled by the rights and obligations that apply to nations in the EEZ and on the high seas.

In the EEZ, the coastal State’s enforcement powers are severely reduced, as the power to enforce its own laws in relation to fisheries and pollutants is specifically handed to the coastal Area. Nations can generally only intervene with vessels that fly their flags on the high seas, limiting the actions they can act to prevent marine security risks. Piracy is one of the rare crimes for which any State has the authority to capture and punish pirates found outside of its high seas.

Instead, a growing number of treaties have been ratified that establish procedures and mechanisms that allow warships to visit foreign-flagged boats and possibly take action over alleged violations under international law. Drug dealing, human trafficking, illicit fisheries, terrorism, and the unlawful transfer of weapons of mass destruction are all covered by these treaties. States have sought modifications to the previous law of the sea in accordance with common concerns about prevention and response to certain marine crimes that have been seen as a danger to the state’s sovereignty.

Maritime security has also been improved by states. Considering that maritime transport carries over 90% of all world commerce, securing the free and safe transportation of these cargoes is critical to States’ financial interests. Significant economic loss as a result of the halting of international shipping represents a critical security concern. To prevent this predicament, states have worked together to identify and mitigate threats to maritime trade, largely through to the International Maritime Organization (IMO), but also on a unilateral basis in some cases.

Making the oceans safer by increasing capabilities to combat maritime crime

Piracy off the coast of East Africa and in the Indian Ocean has disrupted maritime security and international cargo transit. Because piracy prosecutions put a strain on criminal justice systems, UNODC provides legislative review and assistance, as well as support for the police, prosecution, and judiciary. It also provides witness and trial support, trains prosecution, police, maritime authorities, and prison management officers, and builds and refurbishes courts and prisons. As a result, the UNODC assists suspected and convicted pirates in receiving fair justice under the law while also establishing institutions to ensure the long-term sustainability of judicial administration. 

In 2014, the UNODC’s GMCP provided training, legislative advice, institutional reform, suspect defense lawyers, and logistical support for trials to help the criminal justice systems in Kenya, Mauritius, Seychelles, and Tanzania deter, prosecute, and detain those accused of piracy and maritime crime. For example, in Seychelles, a new program to boost police communication capacity – a considerable task given the country’s unique topography – was launched in 2014, with the construction of three new radio towers and the distribution of radios for police cars. As part of its ongoing support for Kenyan prisons, Detainees in Kamiti, Nyeri, Nakuru, and Shimola Tewa prisons would benefit from the service, which will be employed in vocational training efforts. Meanwhile, UNODC aid to Tanzania included support upgrades at Ukonga Prison, including the construction of a wing devoted to pirate detainees. In Mauritius, work on a new courthouse outside of the capital, Port Louis, has begun, reducing the time it takes to transport detainees from the central prison to the new high-security prison in Melrose. Somalia’s maritime law enforcement capabilities have also been improved thanks to the GMCP’s Horn of Africa initiative.

In 2014 one of the key achievements in this area was the deployment of six dedicated maritime mentors embedded in local maritime law enforcement agencies, providing hands-on training and technical assistance. Additionally, UNODC’s Hostage Support Programme continued in 2014 to work to help that taken hostage and advocate for their safe release, as well as provided medical care and facilitated the departure of several released hostages. In 2014, a total of 71 hostages were directly helped, including the 11 surviving crew of the MV Albedo, hijacked in November 2010. 

The GMCP’s Piracy Prisoner Transfer Programme was created to address the absence of secure prison facilities, which has been identified as a major impediment to holding pirates accountable. Since then, the Programme has trained hundreds of detention officers, supplied detainees with vocational training, and enabled the transfer of nearly 100 pirate prisoners convicted and sentenced in Seychelles to serve out their terms in Somaliland and Puntland.

Legal sources

We must also consider the presence of hundreds of regional and bilateral agreements in addition to the mere international conventions. The rights and obligations of signatory countries are frequently expanded by these accords. The Council of Europe’s 1995 Agreement on Illicit Traffic by Sea, which implements Article 17 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, and the 2003 Agreement between the Governments of the United States of America and the Republic of Guatemala concerning the Cooperation in Narcotic Drugs and Psychotropic Substances are two examples of important regional and bilateral agreements the water and the air Of addition, there are numerous more important regional and bilateral agreements addressing the illegal trafficking of narcotics by sea and other modes of transportation.

Finally, the international community employs non-legally binding instruments. For example, an IMO Regulation on the Revised Prevention strategies and Control of Drugs, Psychotropic Substances, and Precursor Chemicals Smuggling aboard Ships Engaged in International Maritime Traffic exists. Despite the fact that some international legal instruments are not legally obligatory, they can provide guidance on best practices in the event of illegal drug trafficking.

The legal framework

Traditionally, piracy has been defined as “any illegal violent act by a maritime vessel on the high seas with the aim to pillage (animo furandi).” The Geneva Convention on the High Seas of 1958 and the UNCLOS, which should be regarded declarative on customary international law, restricted this broad concept.

The United Nations Convention on the Law of the Sea (UNCLOS) defined piracy as “any unlawful violence or detention, or any act of depredation, perpetrated for private objectives by the crew or passengers of a private ship.” as well as directed:

1. in combat with another ship on the high seas.
2. against a ship, aircraft, person, or goods in a location outside of any State’s authority.

When it comes to the fight against piracy, these have traditionally been known and legislated that those on board a pirate ship may be captured by the capturing vessel. Those people could be prosecuted in any jurisdiction and face the consequences of that state’s rules (Article 105 LOSC). Each maritime trade state’s jurists and thinkers have accepted the legality of global piracy jurisdiction for centuries. 

Drug smuggling through maritime has constitutional aspects.

The crime of illegal drug trafficking by sea must be identified in order to determine the punishment and guilt of those engaged. The specifics and features are frequently spelled out in greater depth in national legislation. In the following paragraphs of this master’s dissertation, we will just cover the general constitutional aspects that are necessary to understand this type of crime. 

To begin, I’ll discuss the entity of the offence. The object of a crime is the lawful interests and rights that have been violated by the perpetrated crime. The lives and health of people, the safety of navigation, regular social and economic relations between nations, and the security of navigation at marine will all be the targets of the crime of illegal drug trafficking by water.

Second, we must determine the crime’s objective component. This refers to the various sorts and methods of criminal activity. The following strategies are utilized in the criminal act of drug trafficking by sea: the crew, passengers, or cargo of a boat transferring narcotic drugs or illegal drugs from the shore cargo, drug transfers from sailboats to territorial waters or internal waters, or narcotics drug or psychotropic substance transfers from one ship to another on the high seas (perhaps with the help of airplanes).

Lastly, we must consider the crime’s subject or mental element. That refers to the interrelationship between the crime is actually the subject and the crime committed by the subject. Passengers, crew members, transportation company personnel, and the recipient or sender of commodities are all prospective topics when it comes to drug trafficking. A direct intent to conduct a crime and an indirectly intent to commit a crime can be distinguished based on the interaction between those elements and the crime executed.

Maritime Security’s Emerging Challenges

What would be considered marine security threats in the next years will undoubtedly evolve. In this context, Edwin D Dickinson published an Article in 1925 titled “Is Piracy a Crime?” Despite this, piracy is still an issue for international commerce, and it’s possible that if pirates gain access to better technologies, their threat may grow. While excellence is difficult to make, there are a few indicators of vulnerabilities that could become more serious marine security concerns in the ahead. This section goes over the various hazards that may occur as a result of technological advances, new marine uses, and climate conditions. The focus then moves to the understudied topic of the human aspect, as well as the numerous territorial questions that occur and remain unresolved. 

Maritime security threats are often evolving

Technological developments will undoubtedly have an effect on how countries view marine safety. States may believe that using technologies launched from the water to gain more information about their coastline border control activities, forces, and technology weakens their defenses. In addition, more emphasis has been put on gathering communication and signals espionage, which might be used only for digital or informational warfare. Over The use of surveillance aircraft (drones) conducting government surveillance programs may cause a flight to be reconsidered.

A second aspect is that States will be enabled to use technological advances to strengthen their marine security and be better able to identify and react to crimes and other criminal conduct occurring across their borders. Palau, a Pacific island country, has always been the focus of a trial project that involved the use of unmanned aircraft to boost observation in its wide EEZagainst illegal logging. Rules regulating pursuit, the right of access, and the practice of enforcement jurisdiction may need to be brought up to date new information obtained and shared through technological advances.

Another impact of technology on marine defense could be the increasing complexity of illegal activities, as offenders get access to various methods and techniques to carry out their actions while evading capture. Security precautions must be used in the development of trackers, like those envisioned for the LRIT Regulation and the Ip Surveillance Network, to ensuring that only State officials, not illegal organizations, have access to that information.

Submarines have also been discovered for drug trade activities in Latin America and the Caribbean, indicating that global criminal organizations are shifting to new methods of travel for sea smuggling. Submarines are much more commonly deployed by governments as elements of their naval vessels, and regulating submarine movement, particularly in coastal waters, are predicated on the premise that submarines really aren’t individually owned and operated. Although submarines are required to operate on the top for territorial waters in maritime borders, there is no such need for maritime delimitation. Will it need to be revisited in the case of submarines that aren’t covered by state sovereignty?

As States become aware of conditions or even other situations that risk the security and very well of their people, the definition of maritime security risks may increase. At the moment, willful and intentional environmental damage is regarded as a marine safety threat, and it’s possible that some other forms of harm to the environment will be recognized in the same way. Caused by human activity damage to the marine environment may grow more serious in the future, posing a greater threat to the nation’s security. Climatic change’s effects on the marine environment might force governments to follow significant measures to safeguard their marine and territorial interest 5 Illegalities of fisheries 

Though some attempts to commercial behavior regulation are ineffective, choices about what is and is not criminalized are inherently political. The consequences of crime as an inadequate starting place for understanding dangerous behavior by the strong, especially nations and organizations, have long been discussed in criminology (Schwendinger and Schwendinger 1970). How can crime be an impartial, uncontentious starting point for aberrant consumer behavior if the privileged may manipulate the law? The abduction of Oleg Naydenov using fishing ships in Senegal was the first unlawful incident.

Illegalities of fisheries 

The global conflict over illicit fisheries fails to distinguish between offenses perpetrated by powerful people and those committed by coastal people. Many acts by nations and organizations that harm the environment, maritime lifestyles, or impoverished people’s food security are also not criminalized, and country regulations regulating fisheries vary. Several actions are only lightly regulated, while others have been criminalized despite the fact that they ought to not. Local fishermen in Kenya are prohibited from catching fish using spearguns, based on the (unverifiable) belief that all this affects marine life. In global statistics on fishing vessels, such operations were grouped all together. However, Kenya, like all other states, licenses a wide range of commercial fisheries that have a considerably harsher effect on ocean environments, such as applications-based ships that take endangered sea species, such as shark species, which trade is unregulated worldwide.

The perfect storm of unlawful activity in the fisheries has been revealed by fishery crime

Fisheries crime is a complex issue that includes a wide range of crimes, particularly criminal acts, perpetrated at any stage along the supply chain, from the marine environment to the end consumer device. Whenever it comes to law enforcement efforts, the global aspect of fishery crime is critical from a jurisdictional standpoint. The nationality of the fisheries (who could be of many nations and are commonly hired by crime gangs due to their experience of the open seas), for example, might contribute to the transnational aspect of a fisheries activity and capacity to cross the border unnoticed) the flag of the vessels the regions in which the maritime crime is committed or Take place where even the vessels dock and where the cargo is unloaded, for instance, in the Exclusive Economic Zones of coastal Cities or on the international waters. Offenders engaged in maritime crime may be conducted in a range of unlawful operations, include fishing vessels, transit of marine life, fraud, laundering, and documentation, tax, and immigration frauds, among many others.

Regardless of the fact that fisheries piracy is frequently multinational and organized, these have greatly helped attention in the international society precisely because it is not well recognized as a criminal. As a consequence, there is a gap in the law enforcement system’s response. There is indeed a greater need to detect those who commit predicate crimes on the sea and those who profit from such international organized criminal activities. The latter players should be the focus of successful prosecutions, with the goal of ensuring that criminal operations stop, their funds are confiscated, benefits are collected, and appropriate severe punishments are enforced.

Environmental, social, and economic consequences of fishing crime are significant. Illegal logging on a large scale reduces precious fish species, putting the poorest and most vulnerable countries’ maritime sustainability and nutritional lives at risk. It also depletes nations of financial issues while providing unlawful operations with a competitive advantage, creating unfair economic conditions, and driving law-abiding enterprises out from the marketplace.

Earlier, the United Nations Office on Drugs and Crime (UNODC), as well as other organization, had also reported on the illegal usage of fishing vessels. Transshipments, for instance, are a typical tactic employed by drug smugglers in West Africa to shift the load from one fishing or container ship to another. In the meantime, there have also been reports of fishing boats that are used to transport immigrants and firearms. 

Given the under-researched and complex nature of the linked illegal activity, as well as that it’s ever modus operandi, estimating the scope of the world’s economic crime and the revenue lost as a result is a challenging endeavor that is likely to be wrong. To show the diverse techniques, scope, and economic importance of money laundering, it is much more appropriate to utilize several instances.

Unlawful lobster harvesting in interchange for forerunners for illegal drugs, explosive devices trafficking in link with catching fish (in Tanzania), identity theft and water contamination in connection with fishing vessels on the international waters of the Southern Ocean, or killing and dangers of serious bodily harm in relation with potential fraud inside the industry (in a Somalia case). The $22.5 million compensation order issued to South Africa as a result of the famed Bengis case is a good example of the massive economic lost value due to fishery piracy and

Illegal fishing of live reef fish for food, attractive reef fish, and corals is estimated to cost over $850 million on average annually across East Asia and the Pacific, according to one region estimate. 

Where do illegal, unreported, and unregulated fishing actually occur

Off the west coast Of Africa, the situation is particularly dire. IUU fishing is estimated to account for 40% of all fish captured in this area, which is the largest rate anywhere else in the globe. This is a disaster for the continent’s fish populations, which are already significantly weakened. Some IUU boats fish immediately off the coast, often as close as one km from the coastline, because they are sure that they’ll never face any inspections or penalties from fisheries control officials. In regions of the Pacific, there is a similar situation. According to Indonesian specialists, tracking IUU boats across the nation’s archipelago is extremely difficult. 

The unlawful capture is also large, averaging 1.5 million tonnes each year. The Arafura Sea, that located in both Australia and Indonesia, has been severely impacted as well. The Western Central Pacific Ocean, behind West Africa, has the highest percentage of IUU fishing in the world. IUU fishing accounted for 34% of the overall harvest in the Pacific Region. In the Northwest Pacific Ocean, particularly the West Bering Sea, a similar trend has been observed. Russia and China are the primary perpetrators of IUU fishing, accounting for 33% of all catches. Although data for the Southwestern Atlantic is sketchy, experts estimate that Illegal logging accounts for approximately 32 percent of all fishing inside the region. 

Though a more effective method would be to create a global organization dedicated to spreading awareness in the segment of IUU fisheries, such as by launching a custom-made site or database to collect data regarding Fishing that could be searched by anybody, which include liability insurance providers. The shipping industry has followed a better step to prevent piracy and robberies at the water by establishing the International Marine Bureau Piracy Reports Unit in Malaysia, which promptly detects any trend or swings in piracy and armed robbery tendencies and warns all involved parties, and keeps track of piracy locations on an electronic device 4:9 Donations are the only source of funding for the Center. There’s really no reason why a comparable campaign to combat IUU fishing couldn’t be launched. The successful implementation of this program would necessitate a constant and regular flow of data to complete the data. 

Significant steps have been taken to combat illegal, unreported, and unregulated fishing

The registration to fish is examined. The flag country’s operation permit for the ship is included, as well as details as to who is allowed to run the vessel.

Their fishing license has been verified. This document contains specific details on the ship’s legal fishing activity, such as the kinds of fish, timings, places, and quantities.

Their certificate for catching fish is examined. This report contains details about the current capture, such as where and when it was caught.

An electronic version of the log is inspected. On a regular basis, the ship’s captain must report where and when the fish was collected, and also the quantity captured distinct species groupings (fish as well as other marine fauna) are harmed to differing degrees by IUU fishing, as seen in this comparative analysis. According to one study, Fishing primarily targeted demersal fishes from 2000 to 2003. (i.e. those which live and feed on or near the bottom of the sea). For each species, the figure depicts illicit and undisclosed harvest as a percent of declared capture.

Pollution of the seabed that isn’t lawful 

“Every year, merchant ships dump up to 810,000 tonnes of oil waste into the deep ocean, both purposefully and unlawfully. As a result, waterbed population numbers are declining, ecosystems for slow-moving shellfish including such oysters, shellfish, as well as mussels are being contaminated, and fish, if it is not brutally murdered by the oil’s harmful toxins, reducing their power to reproduce, begin producing deformed offspring, or produce much more harmful substances after ingesting the oil. Individually, mammals, crocodiles, or amphibians with native habitats near or in ocean areas either drown or perish from consuming species contaminated by oily excrement. 

The harm that illegal oil disposal poses to the maritime environment and the entire ecosystem’s biodiversity is adequately described in this small paragraph. Cargo ship pollutants account for around 12% of all marine pollution, and this is strictly regulated on a global scale. Oil lobbying shells are responsible for a large part of this contamination. To avoid being detected, ships frequently unlawfully dump their oily wastes outside any port, flags, or coastline State’s jurisdictional seas, over regular trade routes, or at midnight in an area where recent oil mishaps have occurred. The rationale for the pollutants’ selection of these sites and dates was simple.

Polluters assume that by polluting even in a specific jurisdiction, they would evade identification and penalties. Second, offenders might avoid discovery by combining the oily trash with accident leftovers that have already accumulated on the surface of the ocean via normal trade routes. Finally, dumping oily trash at nighttime makes it difficult for several countries to distinguish between oil sheens mostly on the surface of the ocean and the polluting vessels.

The UNCLOS Part XII on the “Protection and Preservation of the Marine Environment” effectively defines the legal framework for combating ship pollutants. Apart from the UNCLOS, the majority of cargo ship contamination is regulated through conventions signed underneath the aegis of the International Maritime Organization (IMO). The first one is the International Convention for the Prevention of Pollution (MARPOL 1973/78), which focuses on pollution prevention. Another important IMO Convention is the 1990 International Convention on Oil Pollution Preparedness, Response, and Cooperation (OPRC), which governs ship pollutant response.

The International Convention on Civil Liability for Bunker Pollution Damage should really be consulted when it comes to fuel oil and liability problems. The Convention focuses on legal responsibility and was enacted to assure that individuals who suffered damage as a result of oil spillage once it is transported as fuels in ships’ tanks receive proper, fast, and appropriate compensation. Damages committed on the territories of States Parties, particularly territorial seas, and in their respective economies, are covered by the Agreement. 

The Bunkers Convention (Convention on Civil Liability for Bunker Oil Harm) is a stand-alone treaty that only addresses marine pollution. It’s also based on the 1969 International Convention on Civil Liability for Oil Pollution Damage, which mandates that a ship’s legal owner hold mandatory insurance coverage.

Besides these conventions, no other agreement tackles the global crime of oil discharge. But legal provisions can provide the state involved judicial power. The U.S Government Act to Prevent Pollution from Ships is indeed an instance (APPS). That gives US officials the power to charge ship owners, managers, and members of the crew with criminal acts. Those people could be charged with a state Class D offense, which carries a penalty of up to six years in prison and a fine of up to US$ 250,000 for just a person and US$ 500,000 for such a corporation. Furthermore, if the alleged perpetrators are found to be guilty, this Act allows the judiciary to award nearly half of any fine to anyone who provided information that would lead to a conviction.

Conclusion

States and multinational entities face several difficulties in countering transnational organized crime at marine. This really is due to the fact that organized crime at the ship is a multi-faceted issue covering a wide range of illegal activities as well as numerous main problems in a domestic environment. While enforcing laws at sea, there may be complications. Global forces without any explicit mission or understanding about how to deal with sensitive issues such as collecting evidence, testimony, or human rights may be involved in these operations. Navy ships frequently have distinct Laws of War that limit the actions required to combat transnational crime at sea. The marine unit participating in Data is meaningless Mission Atalanta off the Somali coast, for instance, will not be authorised to participate in a migrants smuggling ring.

he most of the difficulties are found in establishing sovereignty over transnational organized crime at the water and maintaining effective coordination amongst diverse State institutions. Collaboration between relevant international institutions and the establishment of much more Mutual Legal Assistance (MLA) or extradited agreements could help address this. Throughout the combat over organized crime at sea, it is critical to ratify multilateral trading agreements and harmonies domestic laws. 

The meaning of this paper’s conclusion is self-evident: to tackle IUU fishing, a comprehensive analysis is proposed. This strategy can and must include expressly preventing insurance companies from giving liability coverage to persons who engage in IUU fishing on a daily basis. It would not totally eradicate IUU fishing, as fishing vessels with no prior record of IUU fishing could get engaged in these kinds of activities after receiving risk insurance coverage. Frequent perpetrators, on the other hand, will find it more difficult to get liability insurance due to enhanced consistency in interpretation of and revisions to relevant legislation, Improved clarification in the interpretation of and revisions to relevant legislation, on the other hand, will make it increasingly challenging for repeat offenders to acquire insurance coverage quickly and without qualifying, limiting their ability to operate.

References 

• http://10.1093/law/9780198715481.003.0026 
• https://www.jstor.org/stable/10.13169/statecrime.4.2.0175 
• https://www.jstor.org/stable/827765 
• https://www.unodc.org/documents/organized-crime/GPTOC/Issue_Paper__TOC_at_Sea.pdf 
• www.unodc.org 
• https://www.jstor.org/stable/20078637 

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