Enforcement jurisdiction on the high seas

Abstract

The law of the sea is constantly evolving and so are maritime threats. The freedom of navigation on the high seas has brought about the need for increased international maritime security. It is of common interest for States to suppress these threats. This does not come without its challenges, especially on the high seas due to well-known problems surrounding jurisdictional rules. The principle of exclusive flag State jurisdiction alone is not enough to suppress maritime threats on the high seas. For this reason, assistance from non-flag States is necessary. To effectively defeat these threats, the allocation of enforcement jurisdiction to non-flag States is crucial. UNCLOS does not provide any guidance on the how non-flag States may acquire such jurisdiction and falls short of tackling some maritime threats effectively. Consequently, when an interdiction operation on the high seas in times of peace is carried out, issues of enforcement jurisdiction surface. This dissertation addresses the issue of enforcement jurisdiction in response to two major maritime security threats specifically, these being drug trafficking and migrant smuggling. A comparative analysis between the multilateral, regional and bilateral legal instruments surrounding these two maritime threats is performed. The findings of this study show that the duty to cooperate is essential in order to establish a more effective legal framework to combat these crimes. Through the analysis carried out, it is evident there are more effective legal instruments in the realm of drug trafficking when compared to those pertaining to migrant smuggling. The results of this study are highlighted in great detail towards the end of this dissertation. To conclude, a number of points suggesting possible ways forward are presented.