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Allegedly, in February 2007, some 100 nautical miles northeast of the Madeira Archipelago, Portuguese frogmen boarded the Spanish-flagged yacht Blaus VII and found 3 Greek sailors and 1500 kilograms of cocaine on board. Today, the aforementioned yacht is called NRP Zarco and is used to teach naval cadets how to sail. Under what legal framework did the Portuguese Navy board and seize the yacht? Was it under the UNCLOS?

What I found

Allegedly, after the seizure in early 2007, the yacht was owned by the Autonomous Region of Madeira, which, in mid 2014, transferred the ownership of the yacht to the Ministry of Defense in exchange for a 17th century fortress in Madeira that was owned by the Portuguese Navy at the time. However, why did the Autonomous Region of Madeira have the right to seize the yacht? How is this not an instance of state-sponsored piracy?

The yacht

In case you are wondering what the yacht looks like, it is approximately 74 feet long. When new, it must have cost some 2-3 million EUR2023.

NRP Zarco Source

References

Related

Rodrigo de Azevedo
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    It's not piracy because it's state-sponsored. It's the same distinction that separates capital punishment from murder. – bdb484 Aug 21 '23 at 02:07
  • @bdb484 Yes, but executing "capital punishment" outside one's territory is a bit delicate. The question pertains also to how "100 miles off the Madeira Archipelago" is under Portugal's jurisdiction. Perhaps, with Spain's permission, Portugal can board Spanish-flagged ships anywhere except in another country's territorial waters. – Rodrigo de Azevedo Aug 21 '23 at 06:57
  • @bdb484 My wording was not exactly fortunate. I am not claiming that the boarding and seizing was state-sponsored piracy because I assume that the Portuguese Navy acted under a legal framework. Thus, when boarding the yacht, the yacht's crew must have been informed that the boarding was authorized by law XYZ. I wonder what that XYZ is. Hence, this question. – Rodrigo de Azevedo Aug 21 '23 at 08:33

1 Answers1

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The Navy is allowed to board and detain a ship under the United Nations Convention on the Law of the Sea, Article 108, which tasks all states to fight narcotics trafficking. This article gives the primary task to do so to the ship's nation. However, as another nation, to board a ship under the Spanish flag, the convention demands only cooperation with Spanish law enforcement. In Europe, a request to assist in naval law enforcement is routinely given, especially in drug enforcement cases. In fact, Spain and Portugal both are founding members of Maritime Analysis and Operations Centre (Narcotics), which is a task force dedicated to hunting drug trafficking vessels. It is very likely that the operation was coordinated via MAOC(N), using Portuguese assets to execute the operation.

Article 108

Illicit traffic in narcotic drugs or psychotropic substances

  1. All States shall cooperate in the suppression of illicit traffic in narcotic drugs and psychotropic substances engaged in by ships on the high seas contrary to international conventions.

  2. Any State which has reasonable grounds for believing that a ship flying its flag is engaged in illicit traffic in narcotic drugs or psychotropic substances may request the cooperation of other States to suppress such traffic.

As far as news reported, the ship hoisted the Spanish flag, such as Funchal News.

In either case, after they boarded the ship, the police detained the ship in Portugal for a crime that was committed in Portugal - the crew had allegedly been selling their cargo there on a previous trip. The case about the ship was heard in Funchal in the Madeira region, by a Madeira court. As a result of that case, the ship was duly seized as an implement of drug trafficking and became government property of the court's region - which is the Madeira region.

A 13 de Abril de 2009, o "Blaus VII" foi declarado «perdido a favor do Estado» por decisão transitada em julgado do Tribunal de Vara Mista do Funchal, passando o veleiro a constituir parte do património da Região Autónoma da Madeira.source

On the 13th of April 2009, the "Blaus VII" was declared "lost to the State" by a final and unappealable decision of the Mixed Court of Funchal, with the sailboat becoming part of the heritage of the Autonomous Region of Madeira.

The Laws that allowed them to take ownership were also recited in the Funchal News article above: Lei nº 130/99, de 21 de Agosto, art. 145º, al. Decreto Legislativo Regional nº 25/2002/M, de 23 de Dezembro and decreto-lei nº 31/85, de 23 de Janeiro were part of the seizing process.

The Madeira government then had the choice to auction the ship off or use it for government operations or otherwise dispose of it. As a result, the Region of Madeira signed a cooperation with the Navy to handle the ship's maintenance. As their property, they then transferred the ship to the Navy in July 2014 in exchange for that fort, constituting a sale to dispose of their legal property to acquire the land of a historic landmark

Trish
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  • I assume that the yacht was not in Madeira's territorial waters when it was boarded. If so, is that relevant? Could the Portuguese Navy board the yacht anywhere in the world outside territorial waters provided that the Government of Spain approved it? – Rodrigo de Azevedo Aug 20 '23 at 13:45
  • Frankly, I do not understand how seizing a yacht helps "in the suppression of illicit traffic in narcotic drugs and psychotropic substances". I understand why the cocaine was seized, but why seize the yacht? Why not return the yacht to its owners, say, after they leave prison? – Rodrigo de Azevedo Aug 20 '23 at 13:54
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    @RodrigodeAzevedo The yacht was likely a "proceeds of crime", and not some random item. Take a look at things like Freezing and Confiscation of Criminal Proceeds – Peter M Aug 20 '23 at 13:58
  • @PeterM However, "likely" is not very similar to "beyond reasonable doubt". Perhaps it was proven in court that the yacht had been bought using ill-gotten funds. Perhaps not. – Rodrigo de Azevedo Aug 20 '23 at 14:00
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    @RodrigodeAzevedo I haven't looked into the details of the case, so I say "likely" to mean that it was highly probably that the court found the yacht to be a "proceeds of crime". Such confiscations are common and legal, but without research I can't make an absolute statement. – Peter M Aug 20 '23 at 14:04
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    The yacht may or may not have been a proceed of crime, but it clearly was a means of crime. – o.m. Aug 20 '23 at 17:27
  • @o.m. I do not feel sorry for the smugglers. They knew what they were getting themselves into. I am concerned about judges getting too piratical. – Rodrigo de Azevedo Aug 20 '23 at 17:32
  • @RodrigodeAzevedo As said, such seizures are quite common in other areas as well. If you're caught in an illegal car race or at excessive speeds, many countries will also seize your car, as a way to prevent another similar crime (at least until you've saved enough for a new expensive car) – PMF Aug 20 '23 at 19:54
  • @PMF Indeed. However, when the authorities seize an automobile, the automobile is not driving 100 miles off the coast. Suppose that the Portuguese Navy parks its frigates some 100 miles off the coast of Colombia and boards all yachts it is allowed to board. Whenever narcotics are found, the yacht is seized. Would such a quasi-piratical operation even be legal? It sounds so ridiculous! I assume that the Portuguese Navy could board the aforementioned yacht because it was in the Portuguese EEZ or something of the sort. – Rodrigo de Azevedo Aug 20 '23 at 20:22
  • @RodrigodeAzevedo Have a read of the history of Operation Atalanta. Its pretty much exactly that in the red sea. https://en.wikipedia.org/wiki/Operation_Atalanta – user1937198 Aug 20 '23 at 23:27
  • Portugal has previously deployed 2 of their frigates to that operation. – user1937198 Aug 20 '23 at 23:34
  • Or even more literally, a case of the US Coast Guard doing exactly that sort of seizure off the coast of Guatemala: https://archive.ph/20130205073059/http://www.uscgnews.com/go/doc/786/226303/U-S-Coast-Guard-Navy-seize-7-tons-of-cocaine They maintain regular patrols in that region. – user1937198 Aug 20 '23 at 23:44
  • @user1937198 Atalanta was a multinational operation. Also, it was a bit of a "non-profit" operation. In contrast, imagine what would happen if countries figured out they could cut their navies' budgets by 10% and encourage the navies to finance themselves via "state-sanctioned piracy" by hunting and seizing yachts. The game-theoretic implications of such competition are potentially serious. – Rodrigo de Azevedo Aug 24 '23 at 20:49
  • And what does the EU have to say about the red sea? Are you saying that it's significantly different if Spain was to send a boat as well. – user1937198 Aug 24 '23 at 21:05
  • @user1937198 Somalia was a failed state. If Somalia cannot protect its waters, then others can. Any oil tankers from Saudi Arabia to Europe should pass through Aden. The goal was to create a public good, rather than engage in competitive "piracy". Arguably, it would have been cheaper to hire the Somali pirates themselves to provide security. – Rodrigo de Azevedo Aug 24 '23 at 21:21