19 Nov National Sovereignty in the Face of Transnational Crime in the Maritime Domain: Evolving Challenges and the Support of the United Nations Convention on the Law of the Sea
By,
Rear Admiral Leonardo Quijarro Santibáñez, MSc – Guest senior analyst, MSI²
Coastal States, particularly in the Pacific as an area of interest for countries whose coasts are washed by this ocean, not only have the legal validity but also the inescapable obligation to act against illicit trafficking (drugs, weapons, people), under the protection of the United Nations Convention on the Law of the Sea (UNCLOS/CONVEMAR) and other related international treaties. The actions of States are fully justified in the territorial sea and the contiguous zone (Article 33, preventive jurisdiction). In the Exclusive Economic Zone and on the high seas, authority is based on cooperation (Article 108) and on the Right of Visit against stateless vessels (Article 110). The validity of such action requires strict observance of limits: acting on the basis of “reasonable grounds to suspect,” proportionality, and the fostering of regional cooperation, ensuring that freedom of navigation is not synonymous with impunity.
Introduction
The Pacific Ocean, vast and strategically vital from the geopolitical perspective of the 21st century, is not only the largest body of water on the planet and a global economic engine; it is also, regrettably, one of the main highways of transnational organized crime. The trafficking of drugs, weapons, and people, often facilitated by the sheer immensity of the maritime space itself, represents a direct threat not only to the internal security of coastal States but also to the integrity of the public international law system.
In this context, a question of paramount importance arises for the defense and sovereignty of nations such as Chile, Peru, Ecuador, or Mexico: do coastal States have a solid legal basis and an inescapable responsibility, in accordance with the United Nations Convention on the Law of the Sea (UNCLOS/CONVEMAR), to intercept and sanction vessels engaged in illicit activities beyond their territorial sea?
The answer, although nuanced by the complex architecture of UNCLOS, is a resounding yes. Nevertheless, such action must be carried out with strict adherence to the rules of the Convention, balancing the imperative of security with the fundamental principle of freedom of navigation.
I. The Nature of the Threat and the Imperative to Act
The illicit trafficking that proliferates in the Pacific is not a mere administrative infraction; it is an attack on human security. Drug trafficking destabilizes economies and corrupts institutions; arms trafficking fuels internal conflicts; and human trafficking constitutes the gravest violation of human rights. These crimes, committed by vessels flying flags of convenience or sailing without a flag (stateless), or by fast craft crewed by members of the same criminal organizations, exploit the central dichotomy of UNCLOS: the tension between the sovereignty of coastal States and the exclusive jurisdiction of the flag State on the high seas.
For Pacific coastal States, inaction is not a viable option. Omission implies not only allowing the commission of crimes that will ultimately affect their coasts, but also failing to fulfill a primary duty to protect their citizens and their national interests. It is here that UNCLOS, far from being an obstacle, reveals itself as an instrument of sovereign defense.
II. Jurisdiction by Maritime Zones: From Full Control to Preventive Surveillance
UNCLOS establishes a tiered jurisdictional regime that is key to understanding the validity of coastal State action:
A. Territorial Sea (Up to 12 Nautical Miles)
Within 12 nautical miles, the coastal State exercises full sovereignty, comparable to its action in land spaces, limited only by the right of “innocent passage.” A vessel engaged in drug, weapons, or human trafficking in the territorial sea automatically loses its “innocent” status. The maritime authority has full validity and responsibility to detain, arrest, and prosecute those responsible.
B. Contiguous Zone (From 12 to 24 Nautical Miles)
The true first line of defense is the contiguous zone. Article 33 of UNCLOS is explicit: it authorizes the coastal State to take the necessary control measures to prevent and punish infringements of its customs, fiscal, immigration, or sanitary laws and regulations committed or about to be committed in its territory or territorial sea.
Drug and human trafficking fall directly under fiscal laws (entry of illicit goods) and immigration laws. This article allows for preventive jurisdiction. A suspect vessel entering within 24 miles, measured from the coast, may be intercepted on reasonable suspicion that its illicit activity will have repercussions in the territorial sea or territory of the State. The validity of action in this zone is therefore a matter of anticipation and self-defense.
C. Exclusive Economic Zone (EEZ) (From 24 to 200 Nautical Miles)
The EEZ is the most contentious zone. Here, the coastal State exercises sovereign rights for the purpose of exploring and exploiting resources (living and non-living) and jurisdiction for the protection of the marine environment. However, the freedoms of navigation and overflight characteristic of the high seas are maintained for all States.
Theoretically, illicit activities not related to biological resources do not automatically confer criminal enforcement jurisdiction on the coastal State. Nonetheless, UNCLOS offers a powerful avenue for action through specific articles:
- Article 108 (Illicit Traffic in Narcotic Drugs and Psychotropic Substances): This article is fundamental. While it requires all States to cooperate in the suppression of illicit drug trafficking, it also establishes that a State which has reasonable grounds to believe that a vessel flying its flag is engaged in such trafficking may request the cooperation of other States. Crucially, drug trafficking has been recognized through international practice as an activity that threatens the sovereign rights of the coastal State, and has justified the conclusion of bilateral agreements allowing for the right of visit and concurrent jurisdiction or transfer of jurisdiction in the EEZ.
III. The Mandate of Cooperation and the Right of Visit
International norms make applicable in the EEZ certain rules of the high seas regarding the duties and rights of visit, search, and boarding. In this way, Pacific coastal States have two powerful legal tools that interrelate:
A. The Path of Article 108 and Bilateral Agreements
Article 108 of UNCLOS establishes the duty of cooperation to suppress illicit drug trafficking. In practice, this translates into the proliferation of Boarding and Follow-up Agreements (Shiprider Agreements) between coastal States and, principally, countries such as the United States. These agreements allow personnel from the coastal State to board vessels in the EEZ or on the high seas, sometimes even transferring jurisdiction over the pursuit to the cooperating foreign force. The validity of such action is based here on prior sovereign consent, which eliminates objections based on the jurisdiction of the flag State.
B. The Right of Visit (Article 110)
Article 110 allows warships to board a foreign vessel on the high seas if there are reasonable grounds to suspect that the vessel is engaged in piracy, the slave trade, unauthorized broadcasting, or, crucially, is without nationality (a stateless vessel).
Most major illicit trafficking operations use vessels without a flag or flying flags that evade responsibility, as well as fast boats, semi-submersibles, and even mini-submarines. When a coastal State, through intelligence, determines that a vessel is stateless, the right of visit is fully activated on the high seas. In such a case, the vessel falls under the jurisdiction of the State conducting the boarding, providing Pacific countries with a powerful legal tool against the most dangerous vectors of crime.
Although UNCLOS does not explicitly include drug or arms trafficking in the exhaustive list of Article 110, other instruments do, such as the 1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988 Vienna Convention), in its Article 17. This enables the evolution of customary international law and State practice to extend the principle of universal jurisdiction or “common interest” to combat threats of this magnitude, especially when dealing with stateless vessels for which no State assumes responsibility.
IV. The Inescapable Responsibility and the Limits of Action
UNCLOS not only confers rights; it also imposes responsibilities and duties. The validity of coastal State action is subject to strict adherence to its rules:
A. The Principle of Due Regard
Any measure adopted, even in the EEZ, must respect the rights of other States, especially freedom of navigation. Disruption of legitimate maritime traffic must be exceptional and minimal.
B. Hot Pursuit
If the pursuit of a vessel begins in internal waters, the territorial sea, or the contiguous zone following a clear violation, it may be continued onto the high seas (Article 111). However, the pursuit must be uninterrupted and will cease if the vessel enters the territorial sea of another State. Coastal States must ensure flawless traceability of such action in order to avoid international responsibility.
C. Liability for Loss or Damage
Article 110 establishes that if the suspicions that prompted the boarding prove unfounded, the boarded vessel must be compensated for any loss or damage it may have suffered. This imposes on coastal States the responsibility to act on the basis of “reasonable grounds” and robust intelligence.
D. The Use of Force
The armed forces or maritime services of coastal States may only use force as a last resort and must have clear rules that allow them to fulfill their mission in accordance with the principles of necessity and proportionality, and with a view to avoiding endangering human life. However, as these are illicit activities, States are obliged to suppress them, whether due to obligations undertaken in international treaties or under domestic law.
From the aspects outlined above arises the imperative need for States to develop and maintain effective Maritime Domain Awareness, understood as the effective understanding of all activities and elements related to the maritime domain that could impact protection, security, the economy, or the marine environment. This will entail the development of technical and military capabilities, or the implementation of agreements with countries that can provide supporting capabilities to achieve this goal.
V. Conclusions: Toward Integrated Maritime Security
- The validity and responsibility of Pacific coastal States to act against vessels engaged in illicit activities constitute a legal and geopolitical imperative. UNCLOS offers a robust, albeit sometimes diffuse, framework that enables such action, particularly through Article 33 (Contiguous Zone) and Article 108 (Drug Trafficking).
- The real challenge does not lie in the absence of rights, but in the capacity and political will of States to exercise them effectively and in a coordinated manner.
- Pacific States must invest in capabilities, both in material means and trained human resources, to achieve Maritime Domain Awareness that allows them to act and document the “reasonable grounds” that justify their actions.
- The Pacific requires a network of bilateral and multilateral agreements (boarding agreements, real-time information-sharing) that can overcome the jurisdictional limitations of the EEZ and the high seas, establishing cooperation as the norm, as required by Article 108. Organizations such as the Permanent Commission of the South Pacific (CPPS) must serve as vehicles for this legal and operational harmonization.
- Ultimately, the Pacific must cease to be a haven for criminals. Coastal States not only have the right, but also the solemn responsibility to exercise, actively and in strict accordance with the law, the prerogatives that UNCLOS grants them, to ensure that freedom of the seas is not confused with impunity. Maritime sovereignty in the 21st century is measured not only by the possession of territory, but by the effective capacity to defend its limits and interests against every threat that sails through its waters.
References
International Maritime Organization. (n.d.). Maritime Domain Awareness. https://www.imo.org/en/ourwork/security/pages/maritime-domain-awareness.aspx
García, F. (2025, September 16). ¿Ataque sin precedentes? Breve análisis y perspectiva. Estrategia. https://www.diarioestrategia.cl/texto-diario/mostrar/5428821/ataque-precedentes-breve-analisis-perspectiva
Morales, S. (n.d.). Geopolítica de los mares y océanos. Cuadernos de Estrategia, 224. Instituto Español de Estudios Estratégicos. https://www.defensa.gob.es/ceseden/-/cuaderno-de-estrategia-224
United Nations. (1982). United Nations Convention on the Law of the Sea. https://www.un.org/depts/los/convention_agreements/texts/unclos/convemar_es.pdf
United Nations. (1988). United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988 Vienna Convention). https://www.unodc.org/pdf/convention_1988_es.pdf
The opinions expressed in this article are those of the author and do not necessarily reflect the views of the Miami Strategic Intelligence Institute (MSI²).