Hardley Lewin | No defect in Shiprider Agreement

An ‘agreement’ between the Government of Jamaica and the Government of the United States of America concerning cooperation in suppressing illicit maritime drug trafficking’ is the full title of what we have come to commonly refer to as the Shiprider Agreement.

Shipriding, whereby a party may designate law enforcement officials to embark on the law enforcement vessel of the other party for the purposes of carrying out the objectives of the agreement, represent only one element of what constitutes a comprehensive range of programme of cooperation. For ease of reference I shall use the term ‘Shiprider Agreement’.

Jamaica has signed and ratified the various conventions treating with the need for international cooperation in suppressing illicit maritime drug traffic. Of particular relevance is Article 17 of the ‘1988 United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances’, referred to in short as the ‘1988 Convention’. Article 17 of the 1988 Convention is set out in full below, and I draw your attention particularly to paragraph nine as this establishes the basis for entering into an agreement with the United States.

Article 17 – Illicit traffic by sea

1 The parties shall cooperate to the fullest extent possible to suppress illicit traffic by sea, in conformity with the international law of the sea.

2 A party which has reasonable grounds to suspect that a vessel flying its flag or not displaying a flag or marks of registry is engaged in illicit traffic may request the assistance of other parties in suppressing its use for that purpose. The parties so requested shall render such assistance within the means available to them.

3 A party which has reasonable grounds to suspect that a vessel exercising freedom of navigation in accordance with international law, and flying the flag or displaying marks of registry of another party is engaged in illicit traffic may so notify the flag state, request confirmation of registry and, if confirmed, request authorisation from the flag state to take appropriate measures in regard to that vessel.

4 In accordance with paragraph 3 or in accordance with treaties in force between them or in accordance with any agreement or arrangement otherwise reached between those parties, the flag state may authorise the requesting state to, inter alia:

a) board the vessel;

b) search the vessel;

c) if evidence of involvement in illicit traffic is found, take appropriate action with respect to the vessel, persons and cargo on board.

5 Where action is taken pursuant to this article, the parties concerned shall take due account of the need not to endanger the safety of life at sea, the security of the vessel and the cargo or to prejudice the commercial and legal interests of the flag state or any other interested state.

6 The flag state may, consistent with its obligations in paragraph 1 of this article, subject its authorisation to conditions to be mutually agreed between it and the requesting party, including conditions relating to responsibility.

7 For the purposes of paragraphs three and four of this article, a party shall respond expeditiously to a request from another party to determine whether a vessel that is flying its flag is entitled to do so, and to requests for authorisation made pursuant to paragraph three. At the time of becoming a party to this convention, each party shall designate an authority or, when necessary, authorities to receive and respond to such requests. Such designation shall be notified through the secretary general to all other parties within one month of the designation.

8 A party which has taken any action in accordance with this article shall promptly inform the flag state concerned of the results of that action.

9 The parties shall consider entering into bilateral or regional agreements or arrangements to carry out, or to enhance the effectiveness of, the provisions of this article.

10 Action pursuant to paragraph four of this article shall be carried out only by warships or military aircraft, or other ships or aircraft clearly marked and identifiable as being on government service and authorised to that effect.

11 Any action taken in accordance with this article 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.

SHIPRIDER AGREEMENT

After a somewhat roller-coaster period of intense negotiations between Jamaica and the United States, the Shiprider Agreement was signed at Kingston on May 6, 1997 and came into effect at a later date when Jamaica completed its process of legislation through the Maritime Drug Trafficking Suppression Act to give effect to the agreement.

The Shiprider Agreement signed between Jamaica and the United States was a tribute to the negotiating skills of Dr Kenneth Rattray, who led the Jamaican negotiating team, and Captain Ashley Roach, United States Navy (Rtd), who led the US negotiating team. This agreement has formed the basis for subregional and hemispheric wide agreements.

The agreement recognising that there will have to be reviews states that; “The parties shall, on a periodic basis, consult with a view to enhancing the effectiveness of this agreement.” It was clearly envisaged that as the agreement was operationalised over time there will have to be adjustments that may have consequential adjustments to the enabling legislation.

WAIVER OF JURISDICTION

Section 20 (2) of the Maritime Drug Trafficking Suppression Act prior to its amendment, states: “Where pursuant to Section 13, a Jamaican vessel is detained seaward of any state’s territorial sea by a treaty state, the minister may waive Jamaica’s right to exercise jurisdiction over the vessel and authorise the relevant treaty state to enforce its laws against that vessel, its cargo and persons found on board other than Jamaican nationals.” So, jurisdiction could be waived for foreign nationals but not for Jamaicans. The effect, therefore, would be a trial in Jamaica for the Jamaicans and a trial in the treaty state for the non-Jamaicans, assuming a waiver of jurisdiction was granted in relation to the latter group.

I am not fully up to speed with the circumstances giving rise to the Maritime Drug Trafficking (Suppression) (Amendment) Act 2016 which grants the minister the power to waive Jamaica’s right to exercise jurisdiction over Jamaican nationals who are detained on a Jamaican vessel by the law enforcement authorities of a treaty state seaward of any state’s territorial sea. The amendment includes certain provisions for consideration when deliberating on whether to grant a waiver of jurisdiction or not. Let me state that I have no issues with the amendment and I think it is a necessary improvement to the legislation.

THE PROBLEM

I have no issue with the Shiprider Agreement, the principal act giving effect to the agreement or the 2016 amendment. So why are we having these challenges, as evidenced by the recent cases with the five fishermen from Trelawny and the Lady Lawla. The defects in these cases have to be placed squarely at the feet of those charged with the decision whether to grant a waiver or not. Though I am not in possession of all the facts, I have sufficient experience to determine that I would not have recommended the granting of a waiver of jurisdiction in these two cases. There were other remedies.

The Jamaica Defence Force (JDF) Coast Guard could have been directed in both cases to dispatch a vessel, rendezvous with the United States Coast Guard vessel, and take control of the vessel, crew and evidence. This has happened many times in the past, and yes, there have been some defects in presenting a successful prosecution. The US authorities must share some blame for these defects when witnesses are not made available or the evidence handed over does not meet the standard required. The solution to these defects cannot be the handing over of our citizens, especially in circumstances where time and space allow for other remedies, but work to fix the defects in prosecutorial submissions.

OPERATIONAL CONSIDERATIONS

Our decision-makers seem not to understand the dynamics of maritime operations and the need for expeditious decision-making. Coast Guard vessels are not designed to hold detainees. There are no facilities built into the ships and the crews are faced with the challenge of doing the best they can when required to detain persons. From the reporting, the five fishermen from Trelawny were held for 32 days on several US Coast Guard ships. When I heard this story, I was deeply troubled because I could not conceive of any circumstances that could give rise to this excessively long period of detention, knowing as I do what the conditions would be like.

To my horror, I was advised that it took 25 days for the Jamaican officials to communicate their decision granting a waiver of jurisdiction, after the request was made. Assuming this to be true, and I have no reason to doubt its accuracy, the Government of Jamaica is responsible for 25 of the 32 days that its citizens spent in detention on the decks of a number of US Coast Guard vessels. The men were passed to a relieving ship every occasion the vessel detaining them had to leave station. Did the Jamaican authorities not know of the conditions under which the men were detained on-board? Maritime counter-drug operations are dynamic events requiring expeditious responses to requests. Any act or omission in the decision-making process will have consequences and there is a person or persons responsible for those consequences. When the Shiprider Agreement came into force, the authority of the central authority was delegated to me in my capacity as commanding officer, JDF Coast Guard. It was made clear to me that in exercising the delegated powers, if I said ‘yeah’ when I should have said ‘nay’, or ‘nay’ when I said ‘yeah”, I would be held responsible.

Regarding the destruction of the vessel Lady Lawla, I am unfamiliar with what seems to be a new standard procedure adopted by the US Coast Guard. I am familiar with a practice where the seized vessel, crew and contraband would be taken to the closest port under US jurisdiction. I cannot figure out why this action was not taken. The task of taking the seized vessel to port is slow and laborious and messes up the seizing vessels programme, but that is par for the course.

Removing the crew from the Lady Lawla and leaving the vessel abandoned and adrift would constitute a hazard to navigation. The US Coast Guard would have an obligation to remove such a hazard. I am still trying to rationalise the process by which you deliberately create a hazard, and then proceed to eliminate that hazard by the most extreme means.

NEXT STEPS

As I stated before, I cannot find any defect in the Shiprider Agreement or the enabling legislation as amended. If the parties wish, there is no harm in conducting a periodic review. I suggest that the following actions be taken by the Government of Jamaica:

• Do not grant any further waiver of jurisdiction except in very exceptional cases and where other remedies are not feasible.

• Arrange for expeditious trial of cases that come about as a consequence of the agreement.

• Discuss and agree on protocols with the United States regarding handling of evidence, handover of evidence and the quality of evidence.

• Arrange and agree protocols for remote presentation of evidence by US law enforcement officials.

• Insist on a thorough investigation and a report on the allegations made by the Jamaicans held by the US Coast Guard.

If there is some political, economic or other overriding factor that would prevent the Government of Jamaica from confidently proceeding along the lines suggested, then the public should be told.

- Rear Admiral (Rtd) Hardley Lewin is a former commissioner of police and former chief of staff of the Jamaica Defence Force.