In October 2016, approximately 140-180 nm northeast of the Galapagos Islands of Ecuador, a military patrol aircraft (MPA) observed a suspected go-fast vessel (GFV) jettisoning packages of suspected contraband overboard. The United States Coast Guard (USCG) arrived at the marked jettison field and its officers recovered 21 bales of cocaine. The USCG officers arrested the GFV and the defendant on board, and seized the rest of cocaine onboard the vessel. The US filed a superseding information charging the defendant with possession of cocaine with intent to distribute, in violation of the Maritime Drug Law Enforcement Act (MDLEA).

The defendant filed a motion to dismiss and argued that he was not captured on the high seas, but within Ecuador’s exclusive economic zone (EEZ), and therefore MDLEA was unconstitutional as applied to him. He relied on the definition of 'high seas' from the United Nations Convention on the Law of the Sea 1982 (UNCLOS) and the statements Ecuador made when it acceded to UNCLOS in 2012, which declared that the Ecuadorian State exercises sovereignty and jurisdiction over the 200 nautical miles that comprise the territorial sea and the EEZ.

Held: Motion denied.

UNCLOS defines certain sea areas and the rights of use in those areas. Those areas include the territorial sea, the EEZ and the high seas. Admittedly, UNCLOS defines high seas as starting after 200 nautical miles. But the court was not persuaded that it should adopt such a definition. First, almost all of the high seas provisions in part 7 of UNCLOS apply equally to the EEZ. The broad grant of rights to other states in the EEZ is consistent with the limited rights that UNCLOS grants to the coastal state in the zone. A coastal state like Ecuador does not have full sovereignty over its EEZ. UNCLOS limits a coastal state’s rights in the EEZ to economic exploration and exploitation and grants it jurisdiction to conduct marine scientific research and protect and preserve the marine environment. Thus, the court declined to adopt UNCLOS’s definition of 'high seas', but instead, defined high seas as the waters beyond 12 nautical miles from the coast.

In addition, Ecuador’s claim of sovereignty and jurisdiction extending to 200 nautical miles did not alter the court’s decision. First, it is not clear that Ecuador’s declaration seeks to modify the limits of UNCLOS in any meaningful way relevant in this case. While the declaration states that Ecuador 'exercises sovereignty and jurisdiction over the 200 nautical miles' comprising the territorial sea and EEZ, the declaration acknowledges that the territorial sea extends 12 nautical miles and that Ecuador has certain limited rights in the EEZ. Even if the court construed the declaration as an assertion of sovereignty to a 200 nautical mile territorial sea, the United States does not recognise such a declaration. Furthermore, when Ecuador acceded to UNCLOS in 2012, it made a 'clear international commitment to a territorial sea of no more than twelve nautical miles'. And, as noted by the many countries that objected to Ecuador’s declaration, UNCLOS prohibits signatories from selectively opting out of its provisions. Ecuador’s territorial sea extends to 12 nautical miles and the high seas begin seaward of that boundary.

Therefore, the MDLEA is constitutional as applied to the defendant because he was captured on the high seas. The high seas begin after the 12 nautical mile territorial sea, not after a country’s EEZ. Therefore, the defendant’s motion to dismiss is denied.