United States v. Salad

908 F. Supp. 2d 730, 2012 WL 6097444, 2012 U.S. Dist. LEXIS 175387
District Court, E.D. Virginia·Decided November 30, 2012·No. Criminal No. 2:11cr34·Published·Cited by 2 cases

Opinion

MEMORANDUM ORDER

REBECCA BEACH SMITH, Chief Judge.

This matter comes before the court upon the Defendants’ Joint Motion to Dismiss Counts 16, 17, 18, 19, 22, 23, 24, and 25 and • Memorandum in Support (“Motion”), ECF No. 504, filed on September 17, 2012. The United States opposed the Motion in its Consolidated Response (“Response”), filed on October 17, 2012. The Defendants filed a Reply (“Reply”), ECF No. 531, on November 1, 2012, and the matter is now ripe for review.

I. MOTION AND ARGUMENT

The Motion challenges the court’s jurisdiction over two sets of charges: four counts of Murder Within the Special Maritime and Territorial Jurisdiction of the United States, in violation of 18 U.S.C. § 1111 (Counts Sixteen through Nineteen); and four counts of Use, Carry, Brandish, and Discharge of a Firearm During a Crime of Violence Causing Death, in violation of 18 U.S.C. § 924(c) and (j) (Counts Twenty-Two through Twenty-Five). The parties agree that the alleged offenses took place on board the sailing vessel Quest, when that vessel was at sea approximately forty miles from the coast of Somalia. See Mot. at 2; Resp. at 140.

The Defendants’ argument is twofold. First, the Defendants attempt to demonstrate that Congress lacks constitutional authority to define and punish alleged acts that “took place within the territory of Somalia” by foreign individuals “on a pirate vessel.” Mot. at 3. In support of this argument, the Defendants attempt to prove that Somalia’s territorial sea extends 200 nautical miles from its coast. Second, the Defendants, “[ajssuming arguendo that the Court has prescriptive jurisdiction over the Capital Defendants,” challenge the basis of statutory authorization for extraterritorial application of § 1111 and § 924 “in the territorial sea of Somalia.” Mot. at 13.

The United States opposes the Motion. In its Response, the United States challenges the “single invalid premise” that undergirds the Defendants’ arguments: the claim that Somali territory extends 200 nautical miles beyond the coast. Resp. at 137.

'll. LAW AND ANALYSIS

A. Scope of Somalia’s Territorial Sea and the Exercise of Jurisdiction Therein

The court first addresses the argument that these offenses took place in the territorial sea of Somalia, because most of the [733]*733Motion depends on the resolution of this question.

1. United Nations Convention on the Law of the Sea

The United Nations Convention on the Law of the Sea (“UNCLOS”) limits a nation’s territorial sea to twelve nautical miles. United Nations Convention on the Law of the Sea art. 3, Dec. 10, 1982, 1833 U.N.T.S. 397.1 More than 160 countries have ratified UNCLOS, although the United States is not among them. See Chronological Lists of Ratifications of, Accessions and Successions to the Convention and the Related Agreements as at 07 November 2012, http://www.un.org/Deptsfios/ reference-files/ chronological_lists_of_ratifications.htm. The government of Somalia ratified UNCLOS in July, 1989. Id. In 1972, prior to ratification, Somalia had enacted a law claiming a 200-mile territorial sea. See Mot. at 5 & Ex. 1. Somalia has declined to repeal that law. Mot. at 5; Resp. at 142.

The United States takes the position that Somalia’s ratification of UNCLOS “supersedes” the 1972 law. Resp. at 142. The Defendants concede that the Somali law contradicts the provisions of UNC-LOS. See Mot. at 5-6. However, they claim that, because the United States has not ratified UNCLOS, the United States has no “standing” to rely on its terms. Mot. at 6-7; Reply at 4.

According to the Defendants, “Somalia has, repeatedly and stubbornly, continued to assert a 200 mile territorial sea.” Reply at 2. The Defendants, repeatedly and stubbornly, insist that such assertions compel this court to recognize a 200-mile territorial sea. They do not. Whether Somalia has adjusted its domestic law to comply with its duties as a signatory to UNCLOS is a question far removed from the substance of this case.2 See Mot. at 4-5; Reply at 2. Nor is it relevant that the United States has not ratified UNCLOS. Mot. at 6; see also United States v. Alaska, 503 U.S. 569, 588 n. 10, 112 S.Ct. 1606, 118 L.Ed.2d 222 (1992). This case does not involve a treaty dispute between the governments of the United States and Somalia. The United States does not seek, as the Defendants suggest, “to demand [UNCLOS] to be suspended.” See Reply at 4. On the contrary, the government’s argument is entirely in line with the provisions of UNCLOS and its description of Somalia’s territorial sea. UNCLOS, by its terms, limits signatories to a maximum territorial sea of twelve nautical miles.

The Defendants finally argue that the UNCLOS provisions on piracy, contained in the section concerning the high seas, “only appl[y] to parts of the sea that are not included in the exclusive economic zone.” Mot. at 16; see also supra note 1. The Defendants incorrectly read those provisions in isolation from other articles [734]*734of the Convention. UNCLOS provides that the articles pertaining to the high seas, including piracy, “apply to the exclusive economic zone in so far as they are not incompatible with this part.” UNC-LOS art. 58(2); see also Geiss & Petrig, supra note 1, at 64 n. 293.

2. Customary International Law

Regardless of the binding effect of UNCLOS itself, the government alternatively argues that the twelve-mile limit represents customary international law, and, accordingly, defines the outermost boundary of Somalia’s sovereign territory. Resp. at 143-46. Customary international law comprises “those rules that States universally abide by, or accede to, out of a sense of legal obligation and mutual concern.” Flores v. S. Peru Copper Corp., 414 F.3d 233, 248 (2d Cir.2003). A treaty can constitute evidence of customary international law “if an overwhelming majority of States have ratified the treaty, and those States uniformly and consistently act in accordance with its principles.” Id. at 256. As this court has noted, “with the exception of its deep seabed mining provisions, the United States has consistently accepted UNCLOS as customary international law for more than 25 years.” United States v. Hasan, 747 F.Supp.2d 599, 635 (E.D.Va.2010).

The Defendants insist that the United States cannot resort to customary international law, both because the twelve-mile limit is not “part of the customary international law,” Mot. at 6-7, and because United States officers have criticized customary international law as “not reliable,” Reply at 5.3 The Defendants’ arguments are unpersuasive. Customary international law may be less attractive than binding treaty law for purposes of national security and international business transactions, but it does not follow from this assumption that customary international law is altogether unreliable. See, e.g., United States v. Dire,

United States v. Salad, 908 F. Supp. 2d 730, 2012 WL 6097444, 2012 U.S. Dist. LEXIS 175387 (E.D. Va. 2012).

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