Lately, there has been a recurring argument presented by defendants involved in MDLEA prosecutions. In short, the argument asserts that foreign states have exclusive jurisdiction over criminal activity in their exclusive economic zone (EEZ) and thus, U.S. courts lack jurisdiction to hear cases where the criminal conduct—i.e. the MDLEA violation—occurred in that foreign state’s EEZ. We looked at a recent decision from the Southern District of Florida (SDFL) were the court concluded that the “high seas” is defined as “all waters seaward of any nation’s twelve-mile territorial sea limit, including EEZs.” Well, now Judge Besosa in the District of Puerto Rico has issued a very similar ruling in U.S. v. Mariani-Romero, et al., No. 22-313 (FAB), 2022 WL 20184569 (D.P.R. June 22, 2023)1Westlaw currently has the date of this decision as June 22, 2022, but, that date is an error. As detailed on the GOVINFO.GOV, the decision was actually issued on June 22, 2023, which is also evidenced by the fact that the Judge Besosa cited to a recent case we summarized, United States v. Iona De Jesús, Case No. 22-20473, 2023 U.S. Dist. LEXIS 103411, at *7-8 (S.D. Fla. May 4, 2023) (“A vessel outside the recognized 12-mile limit of a nation’s territorial seas is a ‘vessel located within international waters’ subject to the United States’ jurisdiction under the MDLEA.”).
Judge Besosa’s ruling is simple. After summarizing caselaw demonstrating the constitutionality of the MDLEA and the conduct it prohibits, he states that, “[t]he term ‘high seas’ includes the EEZ of the Dominican Republic.” Id. (citations omitted) Since the defendants were interdicted in Dominican Republic’s EEZ—110 nautical miles southeast of Isla Beata, DR—the court has jurisdiction to hear the case under the MDLEA as a vessel without nationality in international waters. As such, the defendant’s motion to dismiss was denied.
Although not cited by the court, I believe Judge Besosa’s ruling is also supported by the language in President Regan’s Proclamation 5030, which declared the establishment of the United States’ EEZ. Proclamation 5030 states that United States’ EEZ “remains an area beyond the territory and territorial sea of the United States in which all States enjoy the high seas freedoms of navigation, overflight, the laying of submarine cables and pipelines, and other internationally lawful uses of the sea.” In other words, the high seas start seaward of the United State’s territorial seas (TS). Assuming that Proclamation 5030 echoes customary international law, it makes sense that the only waters a nation state has exclusive jurisdiction over is their territorial seas (and, of course, internal waters).
Additionally, this point is further supported by the bilateral agreement between the U.S. and Dominican Republic concerning counter-drug operations (1995), which states at paragraph 11 that, “[i]n all cases arising in Dominican waters or concerning Dominican flag vessels seaward of any nation’s territorial sea the Government of the Dominican Republic shall have the primary right to exercise jurisdiction over a detained vessel and/or persons on board (including seizure forfeiture, arrest, and prosecution), provided, however, that the Government of the Dominican Republic may, subject to its constitution and the laws, waive its primary right to exercise jurisdiction and authorize the enforcement of United States law against the vessel and/or persons on board.” The treaty clearly acknowledges that DR only has exclusive jurisdiction over detained vessels in Dominican waters (i.e. its TS) and Dominican flagged vessels outside other nation’s TS.
The full decision can be found here.
- 1Westlaw currently has the date of this decision as June 22, 2022, but, that date is an error. As detailed on the GOVINFO.GOV, the decision was actually issued on June 22, 2023, which is also evidenced by the fact that the Judge Besosa cited to a recent case we summarized, United States v. Iona De Jesús, Case No. 22-20473, 2023 U.S. Dist. LEXIS 103411, at *7-8 (S.D. Fla. May 4, 2023) (“A vessel outside the recognized 12-mile limit of a nation’s territorial seas is a ‘vessel located within international waters’ subject to the United States’ jurisdiction under the MDLEA.”).