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The illicit trafficking of narcotics by sea

Looking Into The International And National Laws

Published : Saturday, 27 April, 2019 at 12:00 AM  Count : 765
Jobaira Nasrin Khan

Though Bangladesh is a signatory to several international conventions and there is a separate statute to control the illicit trafficking of drugs but still, we are not perfectly immune. Being a signatory to international conventions and treaties, Bangladesh is indentured to embrace those accordingly to control over narcotic and psychotropic substances. Moreover, the Narcotics Control Act, 2018 which has been implemented repealing the 1990s to control over narcotics' supply, reduce demand, misuse, smuggling throughout Bangladesh.

United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988
Article 17 of the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988 throws light on the rulings over illicit traffic by sea and powers of coastal States. If a Party which has prudent expositions to presume that a vessel whether flying its flag or marks of registry or not or the vessel exercising freedom of navigation in accordance with international law flying flag or displaying registry marks of another Party is involved in illegitimate traffic may request other Parties for cooperation in the former case and in the later occurrence, to notify the flag State and request confirmation of registry and the Parties so asked for shall provide such facilitation in all possible way.

Additionally, For the latter case the flag State may authorize the requesting State to board and search the vessel and if the evidence in regard to illicit traffic is found then to take appropriate actions. This action shall be executed only by warships, military aircraft, any ships or aircraft distinctly marked and identifiable as being on authorized government service.

However, the Party taking actions is required not to put in jeopardy the safeness of life at sea, the security of the cargo and vessel or to distort the legal and commercial concern of the flag or the interested State.  
There is special provision with regard to coastal States that is the actions taken in conformity with Article 17 shall not interfere or affect the rights and obligations and the exercise of jurisdiction of coastal States in accordance with the UNCLOS.

Single Convention on Narcotic Drug, 1961
In consonance with Single Convention on Narcotic Drug, 1961 (Article 35) and Convention on Psychotropic Substances, 1971 (Article 21) the Parties are expected, having bearing their constitutional, legal and administrative systems, to shape plans at the national level and allocate apt agency for confirmation of prevention and repressive action against illicit traffic. It has been also imbued the parties to aid each other for the campaign and cooperate with competent international organizations.

Under Article 35 of the 1961's convention, the Parties are instructed to furnish information, within their borders, relating to impermissible drug activity, cultivation, production, manufacture and trafficking to the Board and the Commission through the Secretary-General.

United Nations Convention on the Law of the Sea 1982
So now on the high seas, according to article 108 of the UNCLOS, contrary to international conventions, all States are obliged to corporate in the suppression of illegal traffic in narcotic and psychotic substances and also if there's plausible ground that a ship flying its flag is engaged in illicit traffic may request the other States for coaction. Moreover, generally the criminal jurisdiction of the coastal State should not be exercised on board a foreign ship passing through the territorial sea to arrest any person or to conduct any investigation in connection with any crime committed on board the ship during its passage, according to article 27 of the UNCLOS save only if such measures are necessary for the suppression of illicit traffic in narcotic drugs or psychotropic substances.

The Narcotics Control Act, 2018
The Narcotics Control Act, 2018, specifically here there is no sole or exclusive provision with regard to the illicit trafficking of narcotic substances by sea but certain provisions are actually can be pertinent with this issue of trafficking by sea.

In accordance with section 23 of the Act, there is an utterance of the petty officer of the coast guard who has the power to search any place without a warrant. Apparently, with the reference of the petty officer, it can be noted that premises of sea are included though there is no direct utterance of 'vessel' as a searching field.
As stated in Article 14 of the 1971's convention and in Article 32 of the 1961's convention, the international freight by ships of qualified drugs for first-aid or emergency purposes shall not be interpreted to be import, export or passage through a country. Likewise, a provision under section 9(5) of the Act defines the same ruling that if the drug is determined by government and notification of the Gazette then the provisions of the Act shall not be applicable on it.

In addition, under section 35 of the Act it has been discussed that during any control delivery and undercover operation some functions should be followed like to enter or leave any vehicle, to supply or procure any vehicle for narcotics, according to the circumstances apply legitimate power for entry and search vehicle, set up a tracking device on any vehicle. Now as in line with section 2(21) of the Act 'vehicle' also includes vessels so section 35 can be applied with regard to trafficking by sea.

Upgrading in transportation technology and communication system, especially nowadays through the sea, has assisted the progress of smuggling of narcotics and psychotropic substances worldwide. In Bangladesh, if the national or international laws and regulations are not practised in an effective way, then we can never be free from the curse of the drugs. And our young generation will be the cardinal victim of its bane.
Jobaira Nasrin Khan is a student of law at BRAC University

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