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That Sinking Feeling: Stateless Ships, Universal Jurisdiction, and the Drug Trafficking Vessel Interdiction Act

Written by  Allyson Bennett

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Congress passed the Drug Trafficking Vessel Interdiction Act (DTVIA)  in 2008 to address a new tool employed by drug traffickers to transport illicit drugs worldwide: the self-propelled submersible vessel (SPSS). According to one congressman, at any particular moment more than one hundred of these vessels are destined for the United States, and each can carry large amounts of drugs.  One SPSS vessel intercepted by the Coast Guard, for example, contained seven tons of cocaine, worth $187 million.  SPSS vessels pose new problems for law enforcement. They are both difficult for the Coast Guard to detect and easy for crewmembers, who often prefer losing their cargo to being caught, to sink. At the first sign of the Coast Guard, drug traffickers can quickly sink the vessel and jump into the ocean, which destroys the evidence necessary to prosecute them for a drug offense and forces the Coast Guard to undertake rescue operations.

The DTVIA responds to these practical difficulties by criminalizing the operation of a submersible or semi-submersible vessel without nationality and with the intent to evade detection.  The U.S. Court of Appeals for the Eleventh Circuit, the only Circuit to have heard a challenge to the DTVIA as of April 1, 2012, has treated the law as an extension of its predecessors,  the Marijuana on the High Seas Act (MHSA)  and the Maritime Drug Law Enforcement Act (MDLEA).  The previous laws made it criminal for individuals to possess drugs with the intent to distribute while on board a “vessel subject to the jurisdiction of the United States,” which was defined to include vessels without nationality.  Courts upheld these earlier laws on the theory that, under customary and treaty international law, all states can exercise jurisdiction over stateless vessels on the high seas solely because of their status as stateless.  The Eleventh Circuit, however, seemed not to realize that stateless vessels played a different role under the DTVIA than they had had in the MHSA and MDLEA.  Unlike these laws, the DTVIA does not use a vessel’s statelessness solely as a jurisdictional hook. Instead, the DTVIA makes the operation of a stateless vessel a key component of the substantive crime it proscribes.

This Note argues that the DTVIA’s dual treatment of stateless vessels blurs the distinction between claiming jurisdiction over stateless vessels because they are stateless and treating the operation of a vessel without nationality as a universal crime. While customary and treaty international law may authorize the former, it does not, and should not, authorize the latter. The use of vessels without nationality does not pose the same threat to the international community as currently recognized universal crimes. Furthermore, making the operation of a stateless vessel a universal crime would affect other areas of international law, like refugee law, in significant and troubling ways.

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