After all, the murder you just committed took place not in any country’s sovereign territory but a metal tube hurtling 11,000 metres over international waters – a legal no-man’s land where no one nation can claim jurisdiction. You have, for all intents and purposes, committed the perfect crime.
…or have you? While pop culture would have us believe that the skies and the high seas are a lawless grey zone where one can commit all manner of heinous crimes without repercussions, the reality is far more complicated and, ultimately, rather disappointing. So please put down your weapons, hit lists, and sketches of the world’s most badass pirate ship as we dive into the fascinating world of international law, extraterritorial jurisdiction, and crime outside of sovereign territory.
Ever since humans began sailing the world’s oceans, tension has existed between two basic desires: that of nations to defend their sovereign territory, and that of merchant ships to sail the high seas unmolested. In order to reconcile these competing interests, over the years a series of international maritime laws have been developed based on the principles of mare liberum, or “freedom of the seas”. First formally outlined in 1608 by Dutch jurist Hugo Grotius, these laws were most recently codified in 1982 by the third United Nations Convention on the Law of the Sea or UNCLOS III. At its most basic, the principle of mare liberum holds that a nation only has sovereign jurisdiction over those waters it can practically police – that is, all lakes, rivers and other bodies of water contained within its borders and a narrow strip of ocean extending a certain distance from its coastline – what are known as territorial waters. At first, this limit was set at three nautical miles – equivalent to 1.51 statute miles or 1.85 kilometres – this being the maximum range that cannon of the era could fire with any accuracy. In more recent years this limit has been extended to 12 nautical miles, so that today only the Kingdom of Jordan and a few British Overseas Territories like Gibraltar still use the old 3-mile limit – while certain countries, including the United States, set the boundary of their territorial waters at 24 nautical miles from shore. But wherever the boundary is set, vessels passing through a nation’s internal and territorial waters are subject at all times to that nation’s laws.
In addition to territorial waters, UNCLOS III grants each nation a further 12-mile area known as the contiguous zone. A nation may stop, search, and detain any vessel in the contiguous zone engaging in activities which currently or may soon threaten said nation’s security or violate its customs, immigration, or environmental laws such as espionage, smuggling, piracy, or illegal dumping. For this reason, the contiguous zone is also sometimes referred to as the hot pursuit zone. Coastal nations which depend on maritime natural resources such as fishing or oil and gas extraction are further granted a further area known as the exclusive economic zone, defined as the area 200 nautical miles beyond the contiguous zone or the extent of that nation’s portion of the continental shelf – whichever is greater. Within this zone, a nation may stop, search, and detain vessels infringing on its fishing or mineral rights, but must grant all others free passage.
While these rules might seem straightforward, given the complex nature of the earth’s geography, conflicts and exceptions will inevitably arise. For example, in nations made up of multiple islands like Indonesia the Philippines, the 12-mile territorial zones of each island will often overlap, meaning that under the conventional definition, all passages within the archipelago would be classified as internal waters, subject to that nation’s full sovereignty and jurisdiction. However, blocking access to these waters and forcing all vessels to sail around the archipelago would overly disrupt freedom of international shipping. Therefore, international maritime law recognizes the principle of innocent passage – the freedom of a vessel to pass through a nation’s internal waters so long as it not carrying weapons or other military equipment, engaged in fishing or mineral extraction, or any other activities in violation of said nation’s security, resource rights, or laws. By international agreement, several other internal waterways have also been declared international shipping routes, including the Danish Straits between the Atlantic Ocean and the Baltic Sea, the Dardanelles and Bosphorus Straits between the Mediterranean and Black Seas, and the Danube River, which connects Germany, Croatia, Austria, Slovakia, Hungary, Serbia, and Moldova to the Black Sea.
For our purposes, however, what we are interested in is the area beyond a nation’s territorial waters, continuous zone, and exclusive economic zone – the area known variously as mare liberum, the high seas, or international waters, over which, according to international maritime law, no nation may claim sovereignty or legal jurisdiction. But before you invite your romantic rival on a spontaneous deep-sea fishing trip exactly 225 nautical miles offshore, it is important to point out that while mare liberum is commonly understood to mean that the high seas belong to no one, the more accurate interpretation is that they belong to everyone. This effectively means that any crime committed on the high seas is a crime against the principle of the mare librum and thus the global community as a whole – and that any nation can intervene to stop or prosecute said crime.
To understand what all this means, imagine for a moment that you’ve decided to live out your childhood dream of becoming a pirate. You cash in your life savings, buy a ship, hire a crew of scurvy sea dogs, hoist the Jolly Roger, and set sail for a life of plunder on the high seas. If you commit an act of piracy, smuggling, or other crime within a nation’s internal or territorial waters or its contiguous zone, you will of course be subject to that nation’s laws and all the attendant penalties. Being a smart pirate, however, you carefully limit your boarding and pillaging to the high seas, far outside the jurisdiction of any sovereign nation. This means you’re home free, right? Alas, no, for according to the principle of Port State Jurisdiction, the last port you sailed from – or the next port you sail into – will have legal jurisdiction over any criminal act committed on the high seas. “Aha!” I hear you say. “Then I just won’t put into port! I’ll stay safely in International Waters, resupplying myself via small boat or seaplane! Surely nobody can touch me now!” Again, no, for while the waters you are floating on belong to no one nation, the vessel you are sailing in most certainly does. According to international maritime law, all vessels must be registered in some sovereign territory and are thus subject to the laws of that territory – a principle known as flag state jurisdiction. Thus, if your pirate ship is registered in the UK, any crimes you commit can be prosecuted under UK law, no matter where on earth they are committed. In order to cut down on costs, many shipping companies will register their vessels in nations with laxer labour and tax laws, a practice known as flying a flag of convenience. This is why nearly 40% of commercial vessels operating today are registered in Panama, Liberia, and the Marshall Islands.
“Fine!” I hear you say. “Then I won’t fly any flag other than my beloved Jolly Roger! Let’s see them stop me now!” Once again, you are out of luck, for under international maritime law an unregistered vessel not flying any flag is automatically deemed suspicious, and is subject to search and detainment by vessels of any nation that happen to be passing by. And if you happen to engage in activities which violate international law, such as slavery, torture, crimes against humanity, war crimes, genocide, illegal broadcasting and – yes – piracy, then you will be subject to Universal Jurisdiction, which grants any nation the right to try and prosecute such crimes. Currently, 163 of the 193 UN member states are able to:
“…exercise universal jurisdiction over one or more crimes under international law, either as such crimes or as ordinary crimes under national law.”
And if for some reason the nation which detains you chooses not to try your case, then in most cases your nation of citizenship will be more than happy to oblige. According to the principle of extraterritorial jurisdiction, a nation’s legal jurisdiction may be extended beyond its sovereign territory if a) a crime is committed outside its territory but has effects within its borders; b) the crime violates international law according to the principle of Universal Jurisdiction; and c) the crime is committed by one of its own citizens. But before you run off to renounce your citizenship, destroy all your personal records, and burn off your fingerprints in order to become an ungovernable international man of mystery, just know that if the somehow your citizenship cannot be determined, then you will likely be handed off to your victims’ country of origin. While it pains us here at Today I Found Out to crush your dreams of freedom and adventure on the high seas, the disappointing truth is that no matter how vast or lawless the oceans might appear, thanks to international maritime law there is no place on earth where you can commit crimes with impunity. So you’d be better off hanging up the eyepatch and sticking to your dull day job in Accounts Receivable; at least that has a dental plan.
“But Simon!” you are now yelling at the screen. “What about the skies? Surely nobody can police those!” Alas, the news for any would-be sky pirates is just as bleak as for their water-bound cousins, for according to international law, the boundaries of territorial and international waters are not limited to the surface of the ocean but also extend downward to the ocean floor and upwards to the edge of outer space, which is itself treated more or less like international waters. This means that no, you can’t get around international maritime law by operating a pirate submarine, and that crime aboard an aircraft or spacecraft is dealt with in much same way as crime aboard a regular surface vessel.
That aircraft in the skies are treated similarly to ships at sea should really come as no surprise. After all, the addition of the third dimension changes almost nothing legally-speaking. Aircraft, like ships, are required to be registered in a sovereign nation, travel between airports located within sovereign nations, and carry passengers who, under the principle of extraterritorial jurisdiction, are subject to the legal jurisdiction of their home countries. Thus, all the old principles of international maritime law still apply. Nonetheless, international agreements have been drafted to cover the particulars of crime aboard commercial aircraft, the most recent being the UN Convention on Offences and Certain Other Acts Committed On Board Aircraft, signed in Tokyo in 1963. According to Article 4 of the convention, any crime committed aboard a commercial flight falls under the jurisdiction of the nation in which the aircraft is registered, and:
“A Contracting State which is not the State of registration may not interfere with an aircraft in flight in order to exercise its criminal jurisdiction over an offence committed on board except in the following cases:
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the offence has effect on the territory of such State;
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the offence has been committed by or against a national or permanent resident of such State;
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the offence is against the security of such State;
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the offence consists of a breach of any rules and regulations relating to the flight or manoeuvre of aircraft in force in such State;
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The exercise of jurisdiction is necessary to ensure the observance of any obligation of such State under a multilateral international agreement.”
Articles 5-10 of the convention also state that ultimate legal authority aboard an aircraft in flight is held by the aircraft’s commander, who:
“…when he had reasonable grounds to believe that a person has committed, or is about to commit, on board the aircraft, an offence or act contemplated in Article 1, paragraph 1, impose upon such person reasonable measures including restraint which are necessary:
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to protect the safety of the aircraft, or of persons or property therein; or
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to maintain good order and discipline on board; or
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to enable him to deliver such person to competent authorities or to disembark him in accordance with the provisions of this Chapter.”
In extreme circumstances such as a terrorist hijacking, the convention further extends these powers to anyone aboard the aircraft including passengers, who are permitted to take reasonable measures to prevent the commission of a crime without having to ask permission or face legal repercussions.
However, the provisions of the Tokyo Convention only apply when an aircraft crosses international borders or flies over international waters, with the aircraft considered to be “in flight”:
“…from the moment when power is applied for the purpose of take-off until the moment when the landing run ends.”
Outside of this period, and for domestic flights taking place entirely within the borders of the aircraft’s State of registration, crimes committed aboard an aircraft fall under the legal jurisdiction of said state, with the prosecution of aerial crimes varying from nation to nation. In the United States, for example, under the 1974 Anti-Hijacking Act the commission of a crime aboard an aircraft in flight over U.S. territory is a federal offence, covered under Title 49 of the U.S. Code of Federal Regulations and prosecuted under the authority of the Federal Aviation Authority or FAA. The only exception is when an aircraft is on the ground prior with its doors still open, in which case jurisdiction passes to the U.S. state in which the aircraft is located. As federal crimes are subject to strict sentencing guidelines, this means that committing a crime aboard an airliner can net you a much harsher sentence than committing the same crime on the ground. So if you’re planning to steal some duty-free liquor, do it at the airport.
Laws like the Tokyo Convention and the Anti-Hijacking Act did much to resolve the legal ambiguity that plagued the airline industry in the years prior to their introduction – an ambiguity that is perfectly summed up by the 1949 case of United States vs. Cordova. On August 2, 1948, a brawl broke out between two passengers aboard a Douglas DC-4 airliner bound from San Juan, Puerto Rico to New York City. The passengers in question had been drinking heavily since the flight began and had gotten into an argument over a missing bottle of rum. When the pilot and a flight attendant attempted to break up the fight, however, they were assaulted by one of the brawling passengers – one Mr. Cordova – who bit the pilot and struck the flight attendant. The crew eventually managed to lock up Cordova in a rear compartment and, once the plane had landed, delivered him into the custody of the New York District. As the assault had taken place over international waters, well outside the jurisdiction of the State of New York, the case was brought before a federal court. However, at the time, U.S. Federal Law did not recognize an aircraft in flight as a “vessel” under international maritime law. Nor did it include any provisions for extending Federal jurisdiction to crimes committed over international waters. In light of these legal gaps, the presiding judge refused to prosecute the case, and Mr. Cordova walked away a free man. If the same case were tried today, under Title 49 the FAA would be able to claim complete jurisdiction over the case on the grounds that a) the aircraft was registered in the United States, b) the flight both originated from and terminated at an airport on U.S. territory, and c) as a resident of Puerto Rico, Mr. Cordova was, according to the Nationality Act of 1940, a U.S. Citizen. So to all you would-be D.B. Coopers out there, just know that when it comes to federal and international law, the sky is definitely not the limit.
But if, after hearing all that, you are still dead-set on committing the perfect crime, then for once I have good news for you! Thanks to a loophole in the U.S. Constitution and some ambiguously drawn state boundaries, there exists a 50-square-mile section of Yellowstone National Park where one could theoretically commit any crime and get away with it. But that is a subject for a whole other video.
Expand for References
Gottlieb, Michael, Who Has Jurisdiction for Crimes Committed at Sea? 2017, https://broward-criminal-lawyer.com/jurisdiction-crimes-committed-sea/
Rampton, Mike, What Can You Actually Get Away With in International Waters? Shortlist, January 3, 2019, https://www.shortlist.com/news/international-waters-law-boats-sea
Till, Geoffrey, The Freedom of the Seas: Why it Matters, Corbett Centre, King’s College London, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/207175/Why_it_matters.pdf
Universal Jurisdiction, International Justice Resource Center, https://ijrcenter.org/cases-before-national-courts/domestic-exercise-of-universal-jurisdiction/
Can You Really Commit Crimes in international Eaters and Get Away With It? Science & technology News, September 9, 2018, https://www.technology.org/2018/09/09/can-you-really-commit-crimes-in-the-international-waters-and-get-away-with-it/
Rafferty, John, Are There Laws on the High Seas? Encyclopedia Brittanica, https://www.britannica.com/story/are-there-laws-on-the-high-seas
Canadian Criminal Code C-46 s.77, https://ift.tt/K1TpMQS
If a Crime is Committed on an Airplane in Flight, Where is the Suspect Tried? Quora, May 3, 2022, https://www.quora.com/If-a-crime-is-committed-on-an-airplane-in-flight-where-is-the-suspect-tried
Crimes on Planes, Justia, https://www.justia.com/aviation/crimes-on-planes/
Cheslaw, Louis, What Happens When a Law is Broken on a Plane, CN Traveller, July 8, 2019, https://ift.tt/fAXUbPI
Convention on Offences and Certain Other Acts Committed on Board Aircraft, https://www.mcgill.ca/iasl/files/iasl/tokyo1963.pdf
United States v. Cordova et al, Court Listener, March 17, 1950, https://www.courtlistener.com/opinion/2597411/united-states-v-cordova/
Overview of Offenses, Jurisdiction, and Penalties for Crimes Committed on Board Flights, Eisner Gorin LLP, https://www.thefederalcriminalattorneys.com/aircraft-in-flight
Extraterritorial Jurisdiction, National Action Plans on Business and Human Rights, https://globalnaps.org/issue/extraterritorial-jurisdiction/
Godwin, Andrew, Extraterritoriality, China Business Law Journal, August 20, 2021, https://law.asia/extraterritoriality/
UN Convention on Offences and Certain Other Acts Committed On Board Aircraft, https://ift.tt/08HxPeg
The post What Happens if You Commit a Crime Aboard an Aircraft or in International Waters? appeared first on Today I Found Out.
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