In October 2023, Seychelles and the European Union (EU) agreed to allow the EU Naval Force to transfer suspected drugs and weapons traffickers in Seychelles waters and on the high seas to Seychelles for prosecution. Similar accords allow EU navies to transfer piracy suspects to Seychelles for trial.

Such bilateral agreements enable countries globally to navigate the unique legal and practical challenges of dealing with drug trafficking at sea. They typically include pre-authorisation to board each other’s vessels on the high seas, and to act 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.

Indicative heroin trafficking pathways along the southern route. (Source: UNODC, Analysis of opiate stamps seized in the Indian Ocean, 2017-2021)

Navies patrolling the Western Indian Ocean’s high seas and eastern Africa’s territorial waters regularly intercept drug trafficking vessels smuggling narcotics, including heroin and methamphetamines, on the southern drug trafficking route (see map). Their crews often cannot provide evidence of their boat’s flag state — usually because owners conceal the vessel’s origin. If vessels lack a discernible flag state and are found to be transporting drugs on the high seas — which fall outside the jurisdiction of any state — navies typically seize and discard the shipment without making any arrests.

Read more in Daily Maverick: Under-policed oceans surrounding Africa a hotbed for transnational criminal activity

Although law enforcement powers against such stateless vessels on the high seas are contested, most agree that countries have limited policing power over them. Even when boats sail through eastern Africa’s territorial waters where governments have jurisdiction, most lack the assets to monitor and intercept them. This allows drug trafficking to proceed uninterrupted, and the same vessel can simply return with another load, hoping to avoid naval patrols.

Jurisdiction claims

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. They argue that because these ships aren’t subject to any state’s control, they can be brought under 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 on the high seas. These navies are better resourced than their regional counterparts and can travel longer distances.

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

Human rights concerns

Limited naval assets and jurisdiction on the high seas aren’t the only concerns. Navies fear potential human rights violations if alleged offenders are returned home. Globally, 35 countries still impose the death penalty for drug-related offences, including Iran and Pakistan, where many drug trafficking vessels destined for eastern Africa originate. Although some of these countries are abolitionists in practice, even returning alleged offenders to a country where they risk being sentenced to death can violate international law.

Considering the historic violations resulting from the war on drugs, safeguarding human rights should be the primary concern of any law enforcement efforts. This not only protects suspects’ rights but ensures procedural integrity.

Growing drug trafficking in the Indian Ocean has caused adjoining states to not only target criminal networks but also address the impact of more 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, as in Mauritius. But the opposite is also true. Sri Lanka for example has reinstated the death penalty for drug-related offences.

When it comes to transnational drug trafficking, punitive domestic policies have global repercussions. They not only fail to mitigate drug trafficking locally but also affect how the problem is dealt with 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 doesn’t 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 these accords to address human rights concerns. Like the Seychelles-EU deal, some arrangements prohibit delivering accused to countries that impose the death penalty.

But how practical are these agreements? An EU naval captain requesting anonymity told the Enact project that although the EU-Seychelles agreement was a positive development, it must be part of a broader strategy. He anticipates many of the challenges the piracy prosecution model faces, 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 make seizures. The massive global supply of narcotics means seizures have a limited impact on the trafficking business model, which can adapt to countermeasures.

The EU naval captain also warned that these agreements would have little impact if they only targeted crew members. They should prioritise thorough investigations to identify the criminal networks orchestrating the trade and remove the vessels from circulation. That 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 succeeds, it could inspire similar agreements between international navies and other African states responding to transnational crimes at sea. DM

Dr Carina Bruwer, Senior Researcher, ENACT, Institute for Security Studies (ISS) Pretoria.

Enact is funded by the European Union and implemented by the Institute for Security Studies in partnership with Interpol and the Global Initiative against Transnational Organized Crime. 

First published by ISS Today.