Editorial | Of power and sovereignty

The suggestion by a three-member panel of federal appeal judges that America’s almost unlimited assertion of its right to arrest alleged foreign drug traffickers on the high seas and try them in US courts is unconstitutional, will likely have implications beyond Washington’s anti-narcotics regime.

The matter, it seems to this newspaper, will reprise questions about the validity of the US extraterritorial application of other laws, among them the Helms-Burton Act, under which foreign companies can be penalised for doing business with, or in Cuba, especially if they use property that once belonged to Americans in pre-revolutionary Cuba.

The judges’ observation will probably also refocus attention on the controversial shiprider pacts that America has with a slew of countries, and ought to be a reminder to our Government that it hasn’t yet shared with Jamaicans the upgraded shiprider protocols it concluded with Washington a year ago. These agreements allow American vessels to engage in “hot pursuit” of suspected drug traffickers in a partner country’s territorial waters. The US Coast Guard is, however, often accused of not playing by the rules and of arbitrary treatment of people it nabs.

The immediate case has to do with two Costa Ricans, José Reyes-Valdivia and Jeffri Dávila-Reyes, whose boat was intercepted and boarded by a US coast guard vessel in the western Caribbean Sea in October 2015, about 30 nautical miles southeast of the Colombia-owned island of San Andres.

The Americans claimed that when Reyes-Valdivia, Dávila-Reyes and a third man became aware of the presence of the US patrol vessel, they began throwing packages and fuel drums overboard. The trio subsequently declared their nationality and the boat’s registration to be Costa Rican, but had no documentation to prove the claim.

The Americans contacted the Costa Rican authorities but received neither confirmation nor denial of the boat’s registration. It was on that basis, the US Coast Guard officers claimed, that under the provisions of America’s Maritime Drug Law Enforcement Act (MDLEA), they concluded that the vessel was without nationality, and therefore open to being boarded and searched. No contraband was found, but tests showed traces of cocaine.

AGREED TO PLEaD GUILTY

When the court rejected the claim by Reyes-Valdivia and Dávila-Reyes that the MDLEA was unconstitutional, the men agreed to a plea deal in which they would plead guilty to one count of possession of, with intent to distribute, five kilogrammes or more of cocaine. They also undertook to waive their right to appeal if the court sentenced them in accordance with the recommendations of the plea agreement.

Nonetheless, Reyes-Valdivia and Dávila-Reyes appealed to the Court of Appeal for the First Circuit, which rejected Dávila-Reyes’ claim of a breach of his plea agreement, but accepted Reyes-Valdivia had grounds on which to argue that the waiver clause in his plea deal was no longer enforceable. The court, however, exercised its discretion not to enforce Dávila-Reyes’ waiver, accepting that they had raised significant constitutional arguments with respect to their claim that in relation to the scope and reach of MDLEA, Congress had exceeded its authority under Article 1 of the US constitution as well as the due-process clause. “Nor do appellants’ guilty pleas foreclose their right to challenge the constitutionality of the MDLEA,” the court ruled.

Ultimately, however, the court upheld the convictions, but primarily on the basis that it had to apply the First District’s existing precedent with regard to how it interpreted the “protective principle” in international law in MDLEA cases. The court, however, didn’t reject the constitutional challenges to the law, but argued that the matter would have to be argued before the full court.

Said the court in a ruling written by Justice Kermit Lipez: “Under governing First Circuit precedent, the protective principle of international law permitted the United States to arrest and prosecute appellants even if, as they claim, their vessel possessed Costa Rican nationality. Their (the appellants’) argument seeking to change that precedent must be presented to the court en banc.” The full court has 11 justices, but with one seat being vacant.

However, in a separate argument Justice Lipez left no question of the panel’s (Lepiz, Jeffrey Howard, O. Rogeriee Tompson) doubt that the protective principle in international law – which permits a country to punish extraterritorial acts that threaten its security of critical interests of the state – has been badly applied with respect to the MDLEA.

Said the judge: “A close review of the cases in which we have considered the protective principle reveals that our court’s approach to the doctrine rests on shaky footing. I describe that precedent below, explaining why its vulnerabilities warrant en banc reconsideration of our application of the principle, under the MDLEA, to drug trafficking aboard vessels in international waters.”

SECURITY RISKS

For instance, Justice Lepiz pointed out, the security risks, as declared by Congress in MDLEA, were “not expressly limited to drug activity with a demonstrated impact on, or nexus to, the United States”.

“Rather, the broadly worded statement would on its face include within its scope drug trafficking aboard a vessel halfway around the world, without any showing that those drugs were headed toward the United States or would otherwise affect the United States or its citizens,” he said.

Neither were drug trafficking offences the kind of matters, the court noted, to which universal jurisdiction would normally apply.

Added Justice Lepiz: “Although appellants’ challenge to their prosecution under the MDLEA founders on the First Circuit’s current approach to the protective principle, there is a compelling argument that our approach is neither deeply considered nor faithful to the international law foundation on which it must rest. The need for our country to respect the sovereignty of other nations is reason enough to warrant careful re-examination of our precedent.” Therefore, should Reyes-Valdivia and Dávila-Reyes petition for an en banc hearing on the constitutional questions, Justice Lepiz said, “I urge my colleagues to grant it without hesitation or delay”.

America’s leadership in applying sanctions against Russia for its invasion of Ukraine may, at this time, limit enthusiasm for Justice Lepiz’s call. Yet, the principles he raises are fundamental and should be embraced: respecting other countries’ sovereignty. Which is the underlying issue in Ukraine.