Are the High Seas a Criminal Paradise?
Over the last few weeks, NSA whistleblower Edward Snowden has applied for political asylum in some two dozen countries. Some nations turned him down for what he says were political reasons and others declined based on technicalities, but at least a few have granted him an invitation. Couldn’t a fugitive like that just kiss all us landlubbers goodbye, though, and live as a free man in international waters instead?
Not unless he’s a cartoon supervillain. Despite what spy novels and action movies would have us believe, international waters (aka trans-boundary waters or the high seas) are not a lawless free-for-all where The Man can’t hassle you over your monkey knife fights. They’re freer than countries’ territorial waters in the sense that no country can claim sovereignty over them, according to the United Nations Convention on the Law of the Sea (UNCLOS), but that doesn’t mean that countries can’t apply their laws or jurisdiction to events or people out there.
The Law of the Sea
Under UNCLOS, “every State shall effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag.” So a fugitive in a ship is still subject to the laws and regulations of whatever country the vessel is registered to.
The United States can also assert jurisdiction in international waters in certain situations by other means. The U.S. Code allows the federal government to exercise “Special Maritime and Territorial Jurisdiction” over…
…any island, rock, or key containing deposits of guano, which may, at the discretion of the President, be considered as appertaining to the United States.
…any place outside the jurisdiction of any nation with respect to an offense by or against a national of the United States.
…to the extent permitted by international law, any foreign vessel during a voyage having a scheduled departure from or arrival in the United States with respect to an offense committed by or against a national of the United States.
International law also generally recognizes a country’s assertion to jurisdiction outside its territory if…
…the offense occurs in one country but has effects on another.
…the offender is a citizen of the prosecuting state.
…the offense threatens the vital interests of the prosecuting state.
…the victim is a citizen of the prosecuting state.
…the offense is universally condemned by the international community (piracy, slave trafficking or terrorism, for examples).
When the President can decide that whatever bat poop–covered rock your hideout is on belongs to the U.S. and then send the law after you, the high seas don’t seem like such a safe bet anymore. Of course, if a fugitive is on a boat flying a foreign flag in international waters, the U.S. might be less likely to violate the jurisdiction of that country to avoid a diplomatic mess. But that’s still not a guarantee for a fugitive’s freedom. The U.S. has a long history of “extraordinary or irregular,” the capture and transfer of criminal fugitives or suspects outside of normal means, and sometimes in violation of international law and foreign sovereignty. If the FBI or CIA will slip into another country to nab someone, they’ll probably get over any qualms they have about storming a foreign boat to do the same.