Stephen Vasciannie | Shiprider agreement should safeguard Jamaica’s national self-respect

Some of the main aspects of Jamaica’s relationship with the United States of America within the Caribbean Sea are governed by the Agreement Concerning Cooperation in Suppressing Illicit Maritime Drug Trafficking between both countries.

This treaty, often called the Jamaica/USA Shiprider Agreement, entered into force on March 10, 1998. Certain amendments were publicly made to the original Shiprider Agreement by a protocol, which entered into force on February 6, 2004. I refer, in this presentation, to the original agreement and the 2004 Protocol together as the “Shiprider Agreement”.

The Shiprider Agreement was prompted in large part by the American desire to apply its superior police powers, maritime prowess and technological advancement in the fight against drug trafficking in the Caribbean Sea. In this regard, it was openly acknowledged that Jamaica and other Caribbean countries needed American assistance to minimize the flow of illicit drugs from South America through the Caribbean Sea and on to North America and to Europe.

Nor was the flow of drugs through the Caribbean Sea the only problem. Caribbean States, generally small and economically underdeveloped, faced the risk of “state capture” by powerful cartels, and, by the 1990s, had emerged as significant transshipment bases and areas in which the fight for drug turf was markedly on the increase.

CONVENTION ON DRUGS

Against the broad background of the perilous impact of drug trafficking on both the USA and the Caribbean, various Shiprider Agreements were concluded between individual Caribbean States on the one hand, and the USA, on the other. All of these bilateral agreements have sought to give substance and effect to the 1988 United Nations Convention on the Illicit Traffic in Narcotic Drugs and Psychotropic Substances, a major treaty that requires all states parties to co-operate in tackling drug problems on sea and land. One hundred ninety two states are party to the 1988 UN Convention, out of about 193 possibilities, amounting to nearly universal support for anti-drug initiatives in international law.

International efforts to combat the flow of drugs by sea should also be understood against the background of the 1982 United Nations Convention on the Law of the Sea, another major treaty this time with approximately 170 states parties. The 1982 Convention defines the main areas of the sea that may be claimed by states and sets out the rules governing these different areas. Most of these rules have been incorporated in the various Shiprider Agreements completed by Caribbean states. For those who are inclined to argue that International Law is an ineffective sham, I note in passing that the Law of the Sea Convention, as followed by states, affects our import-loving lives every day and everywhere.

NOT ALL THE SAME

Not all Caribbean Shiprider Agreements are the same. The US sought uniformity relying on a text it had prepared. The general US approach was accepted by most CARICOM members, without major objections, but there was some degree of resistance by Jamaica and Barbados essentially on the basis that certain draft provisions were inimical to national sovereignty.

In the case of Jamaica, the Shiprider arrangement, as eventually settled by 2004, contemplates that a Jamaican marine officer (a Shiprider) may travel on an American naval vessel in Jamaican waters and in areas beyond Jamaican waters. If the American vessel comes upon a suspect foreign or Jamaican ship in certain parts of the sea, the Jamaican official may be entitled to authorize the US law enforcement officials to stop and search that ship. In other parts of the sea, the Jamaican will not be authorized to allow the Americans to stop and search the foreign ship.

In very sharp summary form, the Jamaican Shiprider may authorize American searches of foreign ships for drugs when the foreign ships are in the following zones of the sea subject to Jamaican jurisdiction: Jamaica’s internal waters, its archipelagic waters, territorial sea and contiguous zone. The Jamaican Shiprider may also authorize the search of Jamaican ships in the foregoing zones, as well as those Jamaican ships in the country’s exclusive economic zone and on the high seas.

NO SHIPRIDER?

So, then, the Americans may search foreign ships in defined waters associated with Jamaica with express permission coming from the Jamaican Shiprider. But what if there is no Jamaican Shiprider on the American ship to give permission? May the Americans go ahead and search a Jamaican ship or a foreign ship in any Jamaican zones, just so?

The short answer is no. In order to undertake searches of suspect vessels in the Jamaican waters or of Jamaican ships, absent a Jamaican Shiprider, the Americans need to obtain permission from a Jamaican Central Authority through telephonic contact. In this way, Jamaican sovereign authority over its waters and over its ships is respected by the US.

USE OF FORCE

Another important question arising under the Jamaican Shiprider Agreement concerns the use of force in carrying out maritime operations. On this issue, Article 3 of the Agreement under the heading of “shipboarding” is directly relevant. Article 3, paragraph 6, indicates that in cases of boarding and seizures, law enforcement officials (in this case, the Americans in all likelihood) “shall avoid the use of force in any way”. This rule is then made subject to three exceptions.

First, force may be used in self-defence. Second, it may be used to compel a suspect vessel to stop if the vessel ignores “standard warnings”. And, third, force may be used to maintain order on the suspect vessel in detention, to prevent the destruction of evidence and to bar attempts to escape by the vessel detained.

Article 3(7) elaborates on the preceding paragraph by noting that law enforcement officers “may carry small arms and shall only discharge them when it is not possible to apply less extreme measures”. It adds that when firearms are discharged, there shall be prior authorization for this by the flag state, save where warning shots are fired or delivered in self-defence. Finally, Article 3(8) stipulates that whenever force is used including firearms, at all times “it shall be the minimum reasonably necessary and proportional in the circumstances”.

These provisions, therefore, seriously curtail the use of force, although they do not prohibit it entirely.

SELF-DEFENCE

In light of recent developments in the Caribbean Sea, Jamaicans may today be legitimately concerned about whether we have the full picture concerning the use of force rules applicable in the Jamaican Shiprider Agreement. We know that, at least in theory, the rules are applicable on the basis of reciprocity. But are there new protocols or quietly enforced agreements between Jamaica and the US concerning the use of force that remain beyond public knowledge?

Jamaica and the US reportedly amended some of the protocols under the Shiprider Agreement in 2021. In keeping with principles of democratic governance and the rule of law, we should by now have been told what the amended rules say – especially if they apply to the use of force in Jamaican waters or against Jamaican ships. The Shiprider Agreement is valuable in the fight against drug trafficking, but we should be careful to ensure that its terms and conditions continue to respect good order and Jamaica’s national self-respect.

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