11 Mar 2024

Drug trafficking / Can EU-Seychelles accord curb Indian Ocean drug trade?

Bilateral agreements are one way to target drug trafficking at sea and to safeguard suspects’ human rights.

In October 2023, Seychelles and the European Union (EU) concluded an agreement allowing navies from the EU Naval Force to transfer suspected drug and weapon traffickers in Seychelles waters and on the high seas to Seychelles for prosecution. Similar bilateral agreements allow EU navies to transfer piracy suspects to Seychelles for prosecution.

Such bilateral agreements enable states globally to navigate the unique legal and practical challenges of responding to drug trafficking at sea. They typically include pre-authorisation to board each other’s vessels on the high seas, and to take steps on each other’s behalf if drug trafficking is encountered. Examples include agreements between European states, and between the United States (US) and Central and South American states.

States should avoid using these agreements to rubber-stamp human rights obligations and to effect seizures

Navies patrolling the Western Indian Ocean’s high seas and eastern Africa’s territorial waters regularly intercept drug trafficking vessels transporting narcotics, including heroin and methamphetamines, as they travel via the southern drug trafficking route. The route stretches from South Asia past Africa’s eastern coast and onward to multiple consumer countries.

Indicative heroin trafficking routes along the southern route

Indicative heroin trafficking routes along the southern route

Source: United Nations Office on Drugs and Crime, Analysis of opiate stamps seized in the Indian Ocean 2017-2021.

Crew members of trafficking vessels often cannot provide evidence of their vessel’s flag state – usually because owners actively conceal the vessel’s origin. If these vessels lack a discernible flag state and are found to be transporting drugs on the high seas, the part of the ocean that falls outside the jurisdiction of any state, navies typically seize and discard the shipment without effecting arrests.

Although law enforcement powers against such stateless vessels on the high seas are contested, most agree that states are afforded limited law enforcement power over these vessels when encountered in areas beyond national jurisdiction. Even when vessels are sailing through eastern Africa’s territorial waters, most have limited assets to monitor and intercept them. This fails to disrupt drug trafficking logistics, and the same vessel can simply return with another load hoping to avoid naval patrols.

There are, however, a few countries, like Seychelles, the US and Council of Europe member states, that claim jurisdiction over stateless drug trafficking vessels on the high seas. This is based on the argument that because these vessels are not subject to any state’s control, they can be subjected to the jurisdiction of the boarding state.

While eastern African coastal states focus on seizures in their national waters, international navies, typically from the global north, concentrate their efforts on the high seas. These navies are better resourced than their regional counterparts and can travel longer distances.

To counter the growing Indian Ocean drug trade, Sri Lanka reinstated the death penalty for drug-related offences

The Combined Maritime Forces (CMF) Task Force 150, an international naval coalition, is the primary entity responding to drug trafficking on the region’s high seas. France, Australia, the US, Kenya, Seychelles and Djibouti are among the participating countries. The CMF also coordinates patrols with the EU Naval Force’s Operation Atalanta, whose counter-piracy mandate was expanded in 2022 to include crimes like drug trafficking.

But limited naval assets and jurisdiction applicable to drug trafficking on the high seas are not navies’ only concerns. Even if any navy was entitled to board, seize and arrest foreign or stateless vessels and crews on these seas, navies fear potential human rights violations if offenders are returned home. This is because 35 countries globally still impose the death penalty for drug-related offences. This includes countries like Iran and Pakistan, where many drug trafficking vessels destined for eastern Africa originate.

Although some of these countries are abolitionists in practice, even returning offenders to a country where they risk being sentenced to death can violate international human rights obligations.

Considering the historic violations resulting from the war on drugs, safeguarding human rights should indeed be the primary concern of any law enforcement efforts. This serves not only to protect suspects’ human rights but also to ensure procedural integrity.

Countries that still impose the death penalty for drug-related offences

Countries that still impose the death penalty for drug-related offences

Source: Harm Reduction International

Growing drug trafficking in the Indian Ocean has caused adjoining states to revisit their drug policies to not only target criminal networks, but also to address the impact of increased drugs moving through the region. Some of these efforts reflect policy reforms that are evolving from a focus on law enforcement to prioritising human rights and the harms caused by the drug trade. Mauritius is an example of this.

But the opposite is also true. For example, in response to the growing Indian Ocean drug trade, Sri Lanka reinstated the death penalty for drug-related offences.

Therefore, when it comes to transnational drug trafficking, punitive domestic drug policies have global repercussions. These not only fail to mitigate drug trafficking locally but also impact how drug trafficking is responded to internationally. Human rights concerns are now often prioritised over arrests when foreign criminal networks are caught moving drugs on board stateless vessels on the high seas.

However, this legal lacuna does not have to leave responding states between the devil and the deep blue sea. In addition to entering into bilateral agreements to overcome jurisdictional challenges, states use bilateral agreements to address human rights concerns. Like the Seychelles-EU agreement, some of these agreements prohibit delivering accused to countries that impose the death penalty.

But how practical are these agreements? An EU naval captain who requested anonymity told ENACT that although the EU-Seychelles agreement was a positive development, it must be part of a broader strategy, since drug trafficking was not an isolated issue but an entrenched structural problem.

Crew members of trafficking vessels often can’t provide evidence of their vessel’s flag state

He anticipates many of the challenges faced by the piracy prosecution model, including limited naval assets, gathering evidence for prosecutions and logistical difficulties when transferring suspects. Warships can take days to deliver suspects to countries and return to their patrol area – impeding their availability for other missions.

States should also guard against using these agreements to rubber-stamp human rights obligations and to effect seizures. Due to the massive global supply of narcotics, seizures have a limited impact on the trafficking business model, which can be adapted to countermeasures.

The EU naval captain also warned that if these agreements only targeted crew members, they would have little impact. Instead, they should prioritise thorough investigations to identify criminal network members orchestrating the trade and remove the vessels from circulation. Achieving this would not only improve the criminal justice response to drug trafficking at sea, but could also prevent other human rights abuses related to drug trafficking.

If the EU-Seychelles agreement is successful, it could inspire similar agreements between international navies and other African states responding to transnational crimes at sea.

Dr Carina Bruwer, Senior Researcher, ENACT

Image: U.S. Naval Forces Central Command


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