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29 Ind. Int'l & Comp. L. Rev. 1 (2019)

handle is hein.journals/iicl29 and id is 1 raw text is: 






  Indiana Int'l & Comp. Law Review

Volume 29                         Number 1                                2019


                              ARTICLES


 OPERATIONAL DIPLOMACY: JURISDICTION CERTIFICATION
     AND THE MARITIME DRUG LAW ENFORCEMENT ACT


                               JUSTIN S. DANIEL*


                               INTRODUCTION
    The Maritime Drug Law Enforcement Act (MDLEA)' is America's premier
statute for enforcing maritime counterdrug laws beyond the United States'
territorial sea, and supports the United States' commitments under the 1988
United Nations Convention against Illicit Traffic in Narcotic Drugs and
Psychotropic Substances (1988 Convention).2 The Act employs a series of
interlocking provisions that facilitate a diplomatic process between U.S.
agencies-principally the U.S. Coast Guard and the U.S. Department of
State-with their counterpart agencies in foreign states to establish U.S.
jurisdiction over foreign-flagged and stateless vessels and their crews.3 Central
to MDLEA prosecutions is a jurisdiction certification-provided for by the Act
and executed in each case by the State Department in cooperation with the Coast
Guard-that documents this diplomatic engagement and is used to establish
jurisdiction in U.S. courts.
    Defendants in MDLEA prosecutions have repeatedly challenged jurisdiction
certifications on a number of grounds, and courts have generally, though not


      * Lieutenant, United States Coast Guard. The author is assigned to the Office of Maritime
and International Law, U.S. Coast Guard Headquarters, in Washington, D.C. The views expressed
herein are his own and do not represent the views of the Coast Guard, the Department of Homeland
Security, or any other component of the United States government. I would like to thank the editors
of the Indiana International and Comparative Law Review for their diligent work on, and insightful
edits to, this Article.
      1. Maritime Drug Law Enforcement Act, 46 U.S.C. §§ 70501-70507 (2012).
      2. United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic
Substances, Dec. 19, 1988, 1582 U.N.T.S. 95 [hereinafter 1988 Convention].
      3. United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S.
397. Under the fundamental law of the sea principle of exclusive flag state jurisdiction,
enforcement action against a vessel on the high seas can only be taken by that vessel's flag state,
subject to limited exceptions. Id. at Article 92. Vessels that attempt to fly multiple flags can be
treated as without nationality and subject to the jurisdiction of any nation. Id. Each state is
responsible to fix the conditions for the grant of its nationality to ships.., and for the right to fly
its flag. Id. at Article 91.


http://doi.org/10. 18060/7909.0063

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