In international waters, are you beyond the reach of the law?

Dear Straight Dope: I have heard that in international waters you can commit endless crimes with no jurisdiction to prosecute you. Is this true? Do such ungoverned spaces exist? I am in no way interested in going to them, but I know they exist and my friends say they don’t. Please help settle this argument. Michelle

gfactor replies:

Nope, it doesn’t work that way. Freedom of the seas is a fundamental principle of the law, but it only applies to countries. At sea ordinary folks remain subject to at least one nation’s jurisdiction–sometimes more.

Freedom of the seas is often credited to the Dutch jurist Grotius. In the early seventeenth century the Dutch wanted part of the East Indies trade. Several nations, especially Spain and Portugal, claimed control over all the oceans, which prevented the Dutch from reaching foreign ports. The idea that a country could claim control of the sea was called mare clausum (closed sea). Grotius, a pioneer in international law, argued for the right of innocent passage (or navigation) on the high seas. He noted, “the sea is called indifferently the property of no one (res nullius), or a common possession (res communis), or public property (res publica).” Grotius contended that the sea could not be owned, and that no country could deny another country’s ships innocent passage right up to the shoreline.

Grotius didn’t dream up freedom of the seas on his own. He relied on Roman law and the maritime customs of Asian and African countries dating back to “before history was ever recorded,” according to Ram Anand, in his essay, “Freedom of the Seas: Past, Present and Future.” Spanish theologians of the sixteenth century had argued for freedom of the seas as well.

Grotius’s work, Mare Liberum, didn’t make much headway at first. Welwood argued against him in Abridgment of all Sea Lawes (1613). So did Selden in the unoriginally-titled Mare Clausum (1635). Grotius himself changed his mind about it. Anand summarizes:

[N]either Grotius nor Holland were in favour of the freedom of the seas as a principle. . . . as soon as the Dutch defeated the Portuguese and seized the profitable trade of the Spice Islands, they sought to create their own monopoly . . . . Grotius conveniently forgot his freedom of the seas principle propounded in 1609 with such fervour, and went to England in 1613 with a Dutch delegation to argue in favour of a Dutch monopoly of trade . . . . In fact, he was surprised that his own book, published anonymously . . . was being quoted by the British against him.

Nevertheless, the idea of a sea where no vessel could interfere with another one took hold. America fought the War of 1812 partly to vindicate the principle and entered World War I in part because of its violation. Woodrow Wilson relied on it in his Fourteen Points, and Franklin Delano Roosevelt asserted it in 1941. The United States Supreme Court traced the doctrine to “no later than the latter half of the 18th century.”

The notion that freedom of the seas should extend up to the beach never worked out in practice. Fear of smuggling and armed attack led coastal nations to claim control of the water immediately offshore. There was a lot of disagreement about how far out territorial waters extended. According to the Head Department of Navigation and Oceanography of the Russian Federation of Ministry and Defence:

At the beginning of the 18th century, a widespread doctrine proclaimed that “the authority of the coastal nation terminates where she can no longer control it with her weaponry.” From that time, the limit of sovereign authority of the maritime countries over coastal waters has become to limit by a swath, the width of which does not exceed distance of the flight of a cannonball from the shore. The average distance of flight was about 3 miles.

Outside this limit, no country could claim the seas. As we will see, this rule survives today, although the 3-mile limit has been extended.

The 1982 United Nations Convention on the Law of the Sea (LOSC) lays out the current rules. As of April 2006, 149 nations had ratified the LOSC. The U.S. played a major role in the drafting of the LOSC, but then decided not to sign it. Never fear: the rules we’re discussing here apply to the U.S. The U.S. is party to other treaties with similar provisions, has asserted rights available only under the LOSC, and has said that its provisions are part of existing international law. So it’s the best place to start looking for answers.

You asked about ungoverned spaces. Technically they exist–the LOSC calls them the high seas: “No State may validly purport to subject any part of the high seas to its sovereignty.” But that doesn’t mean you can avoid prosecution for crimes committed there.

For one thing, every ship is subject to the jurisdiction of the country whose flag it flies. So are its occupants. And you can’t just pick the flag of a country whose laws are most favorable to you, either. The LOSC says there must be a “genuine link” between the ship and the state. If you want to fly a country’s flag, you have to ask the country’s permission and provide it with your ship’s “name and particulars.”

The idea that there is no jurisdiction on the high seas comes from confusion about the meaning of jurisdiction. Jurisdiction describes the limits of the legal power of a nation (international lawyers call them States) to make (prescriptive jurisdiction), apply (adjudicative jurisdiction), and enforce (enforcement jurisdiction) rules of conduct. One basis of jurisdiction is territory–a State can make and enforce laws in its own territory. The confusion arises from the assumption that this is the only basis of jurisdiction. It isn’t. There are five:

(1) The territorial principle, which we’ve already covered.

The other categories are forms of extraterritorial jurisdiction:

(2) The nationality principle, also sometimes called the active personality principle. That’s the one involved where ships are concerned. LOSC says, “Ships have the nationality of the State whose flag they are entitled to fly.” The nationality principle says that states have the right to regulate the conduct of their nationals. One example of this principle at work is section 4 of the Indian Penal Code, which says, “The provisions of this Code apply also to any offence committed by (1) any citizen of India in any place without and beyond India; (2) any person on any ship or aircraft registered in India wherever it may be.” Another example is the U.S.’s application of its civil rights laws to Americans employed abroad by American employers.

(3) The passive personality principle, which is jurisdiction based on the nationality of those injured by the conduct. This kind of jurisdiction is controversial. An example is 18 USC §7, a statute by which the U.S. asserts jurisdiction "[a]ny place outside the jurisdiction of any nation with respect to an offense . . . against a national of the United States.”

(4) The protective principle. According to Amnesty International:

National law in most states permits courts to exercise jurisdiction over conduct by persons abroad which harms the national–particularly the security–interests of the forum state in violation of its own national criminal law (protective or security principle or compétence réelle ou compétence du protection). This principle has been used to prosecute national security offences; currency offences; counterfeiting currency, stamps, seals and emblems; desecration of flags; economic crimes; forgery, fraud or perjury in connection with official documents, such as passports and visas; immigration offences and political offences.

(5) Universal jurisdiction. According to Henry Kissinger, “the doctrine of universal jurisdiction asserts that some crimes are so heinous that their perpetrators should not escape justice by invoking doctrines of sovereign immunity or the sacrosanct nature of national frontiers.” Under the relevant treaties, any State can board a ship on the high seas if the ship is suspected of piracy, transporting slaves, or broadcasting illegally. A ship and its occupants can be arrested for piracy and illegal broadcasting by a warship of any State. For other crimes, the arresting State must get the consent or assistance of the flag state. Also, a ship that flies two flags (flags of convenience) or a ship flying no flag may be visited for further inquiry by any State’s ships. Ships without flags, and those that fly flags of convenience are subject to the jurisdiction of any State. While some scholars disagree, national courts have upheld convictions based on such arrests.

Territory still plays a big part in the law of the sea. States’ territorial claims have expanded considerably since the 18th century. Two hundred miles offshore (when I say mile, I mean the nautical mile, which is 6076 feet, or 1.150779 statute miles) is the limit of a State’s potential exclusive economic zone. I say potential because States must claim the territory they want within this limit, and not all of them do so. In this zone the State has some exclusive rights to exploration and resources. However, other States’ ships have a right of innocent passage through the EEZ, just as Grotius argued.

The next territorial boundary marks the State’s potential contiguous zone, which extends 24 miles offshore. Within this zone, a coastal state can stop and inspect vessels and act to punish (or prevent) violations of its laws within its territory or territorial waters. The contiguous zone solves a vexing problem. As Malcolm Evans describes it:

Traditionally, where the territorial sea ends, the high seas began and the laws of the coastal State no longer apply. However, policing maritime zones is no easy matter and, unlike land boundaries, they are simple to cross. It would therefore be easy for vessels to commit offences within the territorial sea but to evade arrest by moving just a little further seaward. The answer is to permit coastal States to arrest vessels outside their territorial seas in connection with offences that either have been committed or which it is suspected are going to be committed within their territorial sea.

In 1999 President Clinton extended the U.S.’s contiguous zone from 12 to 24 miles.

The potential territorial sea extends 12 miles off the coast. Here the State has territorial jurisdiction, but only up to a point–the right of innocent passage still applies. The LOSC says:

1. 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, save only in the following cases: (a) if the consequences of the crime extend to the coastal State; (b) if the crime is of a kind to disturb the peace of the country or the good order of the territorial sea; (c) if the assistance of the local authorities has been requested by the master of the ship or by a diplomatic agent or consular officer of the flag State; or (d) if such measures are necessary for the suppression of illicit traffic in narcotic drugs or psychotropic substances.

Because coastal State jurisdiction is limited, even in its territorial waters, the flag State’s laws still apply aboard its ships. U.S. courts adjudicate crimes committed aboard ships flying U.S. flags, even if the crime was committed in foreign territorial waters.

In the territorial waters of the United States, ships can be subject to the jurisdiction of individual U.S. states, too. Under federal law: “The seaward boundary of each original coastal State is approved and confirmed as a line three geographical miles distant from its coast line or, in the case of the Great Lakes, to the international boundary.” In Skiriotes v. State Of Florida, 313 U.S. 69 (1941), the United States Supreme Court held that within the three-mile limit, "[w]hen its action does not conflict with federal legislation, the sovereign authority of the State over the conduct of its citizens upon the high seas is analogous to the sovereign authority of the United States over its citizens in like circumstances.” At the time, the U.S.’s territorial sea was three miles wide, so the states had the same territorial jurisdiction as the federal government. In 1988, President Reagan extended the U.S.’s territorial sea to 12 miles. The states’ territory was left at the three mile mark. For historical reasons, Texas and Florida’s claims in the Gulf of Mexico are three marine leagues, which is about nine miles.

Individual U.S. states can apply their laws to their citizens aboard U.S. flag ships, even in foreign territorial waters. In State v. Jack (2005) the Alaska Supreme Court upheld Alaska’s right to prosecute the defendant for a sexual assault committed on the Alaska state ferry while it was in Canadian territorial waters. The court based its decision on the power of a sovereign state to regulate its citizens (the nationality principle) and the effects doctrine (an application of the territorial principle when conduct outside the state has effects within it).

The right of innocent passage ends at the coastline of the State–you need permission to enter the State’s internal waters. Once there, ships and their passengers are subject to all of the State’s laws.

Even on the high seas, a foreign flag vessel isn’t completely exempt from the jurisdiction of other States–vessels are subject to ”visit” and arrest under certain circumstances. LOSC also provides a right of hot pursuit. According to Article 111,

The hot pursuit of a foreign ship may be undertaken when the competent authorities of the coastal State have good reason to believe that the ship has violated the laws and regulations of that State. Such pursuit must be commenced when the foreign ship or one of its boats is within the internal waters, the archipelagic waters, the territorial sea or the contiguous zone of the pursuing State, and may only be continued outside the territorial sea or the contiguous zone if the pursuit has not been interrupted.

As a nod to the territorial principle, “The right of hot pursuit ceases as soon as the ship pursued enters the territorial sea of its own State or of a third State.” States can also agree to permit another state to arrest vessels flying their flags.

Even if none of these exceptions apply, U.S. courts have held that arrest in violation of international law doesn’t necessarily bar prosecution. For example, in United States v. Postal, the defendants were U.S. nationals arrested on board a vessel registered in the Grand Cayman Islands, 16 miles from shore (which at the time was the high seas). The United States Court of Appeals for the Fifth Circuit found that though the arrest violated the Convention on the High Seas (1958), the treaty violation didn’t impair the court’s jurisdiction. The Court of Appeals for the Third Circuit followed suit in 2002. So on the high seas not only are you not beyond the reach of any nation, sometimes you’re with the reach of two.

References

Anand, Ram, “Freedom of the Seas: Past, Present, and Future,” reprinted in Caminos, Hugo, ed., Law of the Sea (2001)

Bryant, Dennis, The U.S. Territorial Sea and Other Lines in the Water, Holland & Knight, November 14, 1997: http://www.hklaw.com/Publications/OtherPublication.asp?ArticleID=81

Churchill, R. and Lowe, A., The Law of the Sea (1999)

CIA World FactBook, Field Listing – Maritime claims (listing of most States’ maritime jurisdictional claims): http://www.cia.gov/cia/publications/factbook/fields/2106.html

Evans, Malcolm, “The Law of the Sea,” in International Law, (Malcolm Evans, ed., 2003)

Grotius, Hugo, The Freedom of the Seas, or the Right Which Belongs to the Dutch to Take Part in the East Indian Trade (1608) (Ralph Van Deman Magoffin, transl., 1916): http://oll.libertyfund.org/Texts/Grotius0110/FreedomOfSeas/HTMLs/0049_Pt03_English.html

Head Department of Navigation and Oceanography of the Russian Federation of Ministry and Defence, untitled web page available at:http://www.oceansatlas.com/unatlas/about/internationalcooperationdrs/seemore2.html; (tracing ancient history of maritime claims and their resolution)

Kissinger, Henry, “The Pitfalls of Universal Jurisdiction: Risking Judicial Tyranny,” Foreign Affairs, July/August 2001: http://www.foreignaffairs.org/20010701faessay4996/henry-a-kissinger/the-pitfalls-of-universal-j urisdiction.html

Molvan v. Attorney-General for Palestine (The Asya), [1948] A.C. 351 (stateless vessel subject to jurisdiction)

Reagan, Ronald, Statement on United States Oceans Policy, March 10, 1983: http://www.reagan.utexas.edu/archives/speeches/1983/31083c.htm;

Skiriotes v. Florida, 313 U.S. 69 (1941) (states have criminal maritime jurisdiction to the three-mile limit): http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?friend=nytimes&court=us&vol=313& amp;invol=69

State v. Jack, 125 P.3d 311, 2006 A.M.C. 206 (Alaska 2005) (Alaska had criminal jurisdiction over sexual assault committed aboard ferry operating in Canadian waters)

Stewart, Robert, Our Ocean Planet: Oceanography in the 21st Century–an Online Textbook (work in progress, rev. 2006): http://oceanworld.tamu.edu/resources/oceanography-book/coastalzone.htm

The United Nations Convention on the Law of the Sea (A Historical Perspective), United Nations: http://www.un.org/Depts/los/convention_agreements/convention_historical_perspective.htm

United State v. Best, 304 F.3d 308 (3d Cir. 2002) (approving prosecution of foreign national seized on foreign flag ship outside the territorial waters of the United States): http://vls.law.vill.edu/Locator/3d /Sept2002/014321.pdf

United States v. Conroy, 589 F.2d 1258 (5th Cir. 1979) (upholding conviction where defendants were arrested on American vessel in Haitian waters)

United States v. DeLeon, 270 F.3d 90 (1st Cir. 2001) (arrest and prosecution for attempted immigration violation in international waters were based on United State’s effects jurisdiction despite lack of authorization in relevant treaty): http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=1st&navby=case&no=002372

United States v. Flores, 289 U.S. 137 (1933) (United States had jurisdiction to prosecute murder committed aboard American vessel in Belgian territory): http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=289&invol=137

United States v. Louisiana, 363 U.S. 1 (explaining the basis for Texas and Florida”s claims in Gulf of Mexico) final decree, 364 U.S. 502 (1960): http://www.justia.us/us/364/502/case.html

United States v. Maine, 475 U.S. 89 (1986) (part of Nantucket Sound was United States territorial waters and part was high seas; rejecting Massachusetts’ claim that it was part of the state’s internal waters based on claim of “ancient title” because Massachusetts did not effectively occupy the territory before the freedom of the high seas became a part of international law): http://www.justia.us/us/475/89/case.html

United States v. Marino-Garcia, 679 F.2d 1373 (11th Cir. 1982) (upholding arrest of stateless vessel found 300 miles from Florida).

United States v. One Big Six Wheel, 166 F.3d 498 (2d Cir. 1999): http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=2nd&navby=case&no=986028 (Congress did not intend to extend the three-mile limit for gambling cruises under the Gambling Ship Act)

United States v. Postal, 589 F.2d 862, 874 (5th Cir. 1979)

United States v. Rodgers, 150 U.S. 249 (1893) (United States had jurisdiction to prosecute assault committed on ship bearing its flag despite fact that assault occurred in Canadian waters): http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=150&invol=249

United States v. Suerte, 291 F.3d 366 (5th Cir. 2002) (Due process does not require a nexus between foreign citizen and US where flag state has consented or waived objection to the enforcement of United States law by the United States): http://laws.lp.findlaw.com/5th/0120626c r0.htm

“Vice President Al Gore Announces New Action To Help Protect And Preserve U.S. Shores And Oceans: Extension of Federal Enforcement Zone in U.S. Coastal Waters Will Help Prevent Violations of Environmental, Customs, or Immigration Laws,” press release (September 2 1999): http://clinton4.nara.gov/CEQ/990902a.html

Wildenhus’s Case, 120 U.S. 1 (1887) (United States had jurisdiction to prosecute stabbing committed aboard Belgian steamship docked at port of New Jersey): http://www.justia.us/us/120/1/case.html

gfactor

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In international waters, are you beyond the reach of the law?

A STAFF REPORT FROM THE STRAIGHT DOPE SCIENCE ADVISORY BOARD