Territorial jurisdiction of the U.S. does not exist on the outer continental shelf or in superjacent waters.

Author:Paust, Jordan J.
 
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This essay addresses the question regarding whether U.S. territorial jurisdiction exists over an outer continental shelf of the United States or in superjacent waters. In particular, this essay will revisit 18 U.S.C. [section] 7(3) to consider whether the special territorial jurisdiction addressed therein can reach alleged criminal conduct on the continental shelf or in superjacent waters beyond a U.S. territorial sea. (1) The essay will also address whether other federal legislation concerning the outer continental shelf can provide federal criminal jurisdiction regarding conduct occurring on the outer continental shelf or in superjacent waters.

As documented in a prior essay on non-extraterritoriality of the "special territorial jurisdiction" of the United States addressed in 18 U.S.C. [section] 7(3), subsection 3 cannot rightly be applied to alleged criminal acts committed in foreign state territory. (2) There are several reasons why [section] 7(3) cannot be extraterritorial and reach conduct in foreign territory or anywhere else outside the borders of the United States and its territorial seas. First, the express focus and plain meaning of the subsection concerns "territorial jurisdiction of the United States." (3) Second, the legislative history of the precursor to [section] 7(3) clearly addressed territorially and geographically limited jurisdiction with respect to federal lands within the borders of the United States. (4) Third, "territorial jurisdiction" has a special meaning under international law that precludes an extraterritorial reach of U.S. "territorial jurisdiction" to lands beyond the territorial borders of the United States and its territorial seas. (5) Fourth, [section] 7(3), as any federal statute, must be interpreted consistently with international law (6) and treaty-based and customary international law do not permit an extraterritorial reach of U.S. "territorial jurisdiction." Fifth, as the Supreme Court has often demanded, unless a contrary intent is clearly expressed by Congress, "legislation is meant to apply only within the territorial jurisdiction of the United States." (7)

The essay also noted that in 1996 Congress, "consistent with international law, chose to expand the territorially limited jurisdiction in [section] 7(3) by expressly recognizing that the twelve nautical mile territorial sea of the United States 'is part of the United States' 'for purposes of Federal criminal jurisdiction.'" (8) As others have rightly affirmed, subject to certain rights of innocent or transit passage, "the coastal state has the same sovereignty over its territorial sea and over the air space, seabed and subsoil thereof, as it has with respect to its land territory." (9) However, the submerged lands within the territorial sea, over which the United States has sovereignty and limited territorial jurisdiction, are not the same lands as those that are part of a continental shelf beyond the twelve nautical mile territorial sea.

As is well known, under treaty-based and customary international law a continental shelf cannot provide the United States "territorial jurisdiction." The Convention on the Continental Shelf recognizes limited rights of the United States over a relevant continental shelf, rights that are merely for particular economic and resource-related purposes: "The coastal State exercises over the continental shelf sovereign rights for the purpose of exploring and exploiting its natural resources." (10) The same language is found in Article 77(1) of the United Nations Convention in the Law of the Sea. (11) Article 3 of the Convention on the Continental Shelf adds: "The rights of the coastal State over the continental shelf do not affect the legal status of the waters as high seas, or that of the superjacent airspace above those waters." (12) For these reasons, writers have stressed that:

The coastal state has sovereign rights over the continental shelf for the purpose of exploring and exploiting its natural resources ... The coastal state does not have sovereign rights over the continental shelf for purposes other than the exploration and exploitation of its natural resources. Treasure Salvors, Inc. v. Unidentified Wrecked and Abandoned Sailing Vessel, 569 F.2d 330 (5th Cir. 1978) ... The rights of the coastal state over the continental shelf do not affect the legal status of the superjacent waters and airspace. (13) Therefore, under treaty-based and customary international law the shelf is not the equivalent of sovereign U.S. territory within its borders or territorial seas and there are no sovereign rights with respect to the shelf "for purposes other than ... exploration and exploitation of ... natural resources." (14) As recognized in a Fifth Circuit case, the United Nations International Law Commission was "unwilling to accept the sovereignty of the coastal state over the seabed and subsoil of the continental shelf' and, as a result, a relevant wreck was "not situated on lands owned or controlled by the United States." (15) Further, the court noted that the International Law Commission "rejected any claim to sovereignty or jurisdiction over the superjacent waters" (16) and found that the continental shelf was decidedly "beyond the limits of territorial jurisdiction." (17) In addition, federal district courts have affirmed that "rights that the United States enjoys in its EEZ [Exclusive Economic Zone] and continental shelf are 'functional in character, limited to specific activities,'" (18) and that "[a]ll countries recognize that a coastal state possesses sovereignty or territorial jurisdiction within" its territorial sea. (19) "However, such sovereignty does not extend past this ... limit." (20)

More generally, under international law a state has "territorial jurisdiction" over the land within its borders and its territorial sea. (21) Waters "[o]utside the territorial sea are the high seas" (22) and are waters outside U.S. territorial jurisdiction.

Importantly, with respect to proper interpretation of 18 U.S.C. [section] 7(3), Supreme Court cases have long required that federal statutes be interpreted consistently with relevant international law if at all possible. (23) "[B]ecause courts must construe federal statutes consistently with international law if at all possible, and under international law it would not be lawful for the United States to assert 'territorial jurisdiction of the United States' over" lands outside its borders and territorial seas, such as the continental shelf, "[section] 7(3) must be construed accordingly." (24)...

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