Rudderless and Adrift: States’

Unwarranted Timidity Respecting

Stateless Vessels

Andrew Norris

106 INT’L L. STUD. 101 (2025)

Volume 106 2025

Published by the Stockton Center for International Law

ISSN 2375-2831
Rudderless and Adrift Vol. 106

Rudderless and Adrift: States’

Unwarranted Timidity Respecting
Stateless Vessels

Andrew Norris ∗

CONTENTS

I. Introduction .............................................................................................. 102

II. Vessel Nationality ..................................................................................... 103
III. Vessels Without Nationality.................................................................... 104
A. What is a Vessel Without Nationality?.......................................... 104
B. What is the Jurisdictional Consequence or Significance of a
Vessel Being Without Nationality? ................................................ 105
IV. International Entitlements and Restrictions Related to Vessels
Without Nationality.................................................................................. 107
A. What is the Effect of the Absence of a Rule of International
Law? ................................................................................................... 109
B. Is the More Assertive Approach to Stateless Vessel
Jurisdiction Prohibited by International Law? ............................. 110
C. What Does All This Mean? ............................................................ 113
V. Anticipatory Rebuttal ............................................................................... 114
VI. Conclusion and a Plea .............................................................................. 115

∗ Captain Andrew Norris is a retired U.S. Coast Guard attorney who currently serves
as a maritime legal and regulatory consultant through his business, Tradewind Maritime
Services Inc.
The thoughts and opinions expressed are those of the author and not necessarily those
of the U.S. government, the U.S. Department of the Navy, or the U.S. Naval War College.

101
International Law Studies 2025

I. INTRODUCTION

V essels without nationality, alternately referred to herein as stateless ves-

sels, 1 are considered to be “international pariahs . . . [that] have no interna-
tionally recognized right to navigate freely on the high seas.” 2 Despite this,
many States, intentionally or by default, fail to adequately utilize their enti-
tlement under international law to exercise enforcement jurisdiction over
such vessels and those aboard them in response to their criminal acts. By
doing so, they perpetuate a jurisdictional void at sea that encourages the illicit
activities of transnational organized criminal groups, smugglers, traffickers,
and other purveyors of disorder and lawlessness at sea. Such a cession (or
non-utilization) of a significant jurisdictional entitlement is baffling, consid-
ering the proliferation of national maritime security strategies, regional agree-
ments, and widely subscribed international conventions designed to promote
more effective security at sea. It is especially mystifying in view of the fairly
ubiquitous obligation participating States undertake in such documents or
agreements to increase their jurisdictional reach and overall legal effective-
ness in combatting maritime crime. 3

1. The term “stateless vessel” is commonly used and thus will be used in this article.
However, the technically correct terminology, mirroring the language of the UN Conven-
tion on the Law of the Sea, is “ship (or vessel) without nationality.” United Nations Con-
vention on the Law of the Sea art. 92, Dec. 10, 1982, 1833 U.N.T.S. 397 (hereinafter UN-
CLOS). These terms will be used interchangeably.
2. United States v. Marino-Garcia, 679 F.2d 1373, 1382 (11th Cir. 1982), cert. denied, 458
U.S. 1114 (1983).
3. See, e.g., United Nations Convention Against Illicit Traffic in Narcotic Drugs and
Psychotropic Substances, Dec. 20, 1988, 1582 U.N.T.S. 165 (“Each Party: (a) Shall take such
measures as may be necessary to establish its jurisdiction” over narcotics-related offenses it
has adopted as required by Article 3 of the Convention. Id. art. 4(1). “This Convention does
not exclude the exercise of any criminal jurisdiction established by a Party in accordance
with its domestic law.” Id. art. 4(3)); United Nations Convention Against Transnational Or-
ganized Crime art. 11(2), Nov. 15, 2000, 2225 U.N.T.S. 275 (“Each State Party shall endeav-
our to ensure that any discretionary legal powers under its domestic law relating to the pros-
ecution of persons for offences covered by this Convention are exercised to maximize the
effectiveness of law enforcement measures in respect of those offences and with due regard
to the need to deter the commission of such offences”); Convention for the Suppression of
Unlawful Acts Against the Safety of Maritime Navigation art. 6, Mar. 10, 1988, T.I.A.S. No.
95-306, 1678 U.N.T.S. 221.

102
Rudderless and Adrift Vol. 106

This article makes the case that there is no international legal impediment
to any State robustly asserting prescriptive, enforcement, or adjudicative ju-
risdiction over vessels without nationality. It first examines the rules relating
to vessel nationality to demonstrate the strong international preference that
vessels be properly flagged in a particular State. It then examines the phe-
nomenon of vessels without nationality, with a focus on what constitutes
statelessness, and what the contemporary understanding is of the jurisdic-
tional effect of that status. It concludes with a legal analysis, based on the
Lotus principle and a recent U.S. appellate court decision that relied upon it,
of the international entitlements and/or restrictions relating to vessels with-
out nationality. Ultimately, the article’s intent is to demonstrate that there is
no international legal impediment to States taking what is characterized
herein as a more assertive approach to, ultimately, deeming vessels to be
stateless and robustly exercising jurisdiction over such vessels based on that
status.

II. VESSEL NATIONALITY

The granting of nationality to a ship is a matter within the exclusive jurisdic-

tion of the State concerned. 4 Articles 91 and 92 of the United Nations Con-
vention on the Law of the Sea (UNCLOS)5 reflect and incorporate long-
standing international law principles related to granting nationality to vessels
and its effects:

Article 91
Nationality of ships

1. Every State shall fix the conditions for the grant of its nationality to
ships, for the registration of ships in its territory, and for the right to fly its
flag. Ships have the nationality of the State whose flag they are entitled to
fly. There must exist a genuine link between the State and the ship.
2. Every State shall issue to ships to which it has granted the right to
fly its flag documents to that effect.

4. M/V Saiga (St. Vincent v. Guinea), Case No. 1, Judgment of Dec. 4, 1997, ITLOS
Rep. 1997, at 16.
5. UNCLOS, supra note 1, arts. 91, 92.

103
International Law Studies 2025

Article 92
Status of ships

1. Ships shall sail under the flag of one State only . . . . A ship may not
change its flag during a voyage or while in a port of call, save in the case of
a real transfer of ownership or change of registry.

According to the United Nations Office on Drugs and Crime’s Maritime

Crime Manual, 6 the three main reasons why every vessel is expected to have
a nationality are:

First, the flag of a vessel indicates which State has primary responsibility
for implementing the duties set out in UNCLOS, including in article 94,[7]
and in other applicable rules of international law. . . .
....
Second, the flag State also provides the primary jurisdiction applicable to
the vessel and thus not only to the conduct of the vessel, but also to the
conduct of persons on board the vessel. . . .
....
Third, the designation of a flag State provides an appropriate authority to
which requests regarding the vessel can be directed. For example, any re-
quest by warships or other duly authorized vessels to be permitted to board
a vessel flagged by another State in international waters, often referred to
as “flag State authorization”, must be directed to the flag State. 8

III. VESSELS WITHOUT NATIONALITY

A. What is a Vessel Without Nationality?

The Maritime Crime Manual defines “vessel without nationality” as follows:

A vessel that can claim no nationality, that is, a vessel that is not registered
with or entitled to fly the flag of any State. Under UNCLOS article 92(2),
a ship that sails under the flags of two or more States, using them according

6. U.N. OFFICE ON DRUGS AND CRIME, MARITIME CRIME: A MANUAL FOR CRIMINAL
JUSTICE PRACTITIONERS (3d ed. 2020), [Link]
time_crime/GMCP_Maritime_3rd_edition_Ebook.pdf [hereinafter MARITIME CRIME
MANUAL].
7. UNCLOS, supra note 1, art. 94 obliges flag States to “effectively exercise its jurisdic-
tion and control in administrative, technical and social matters over ships flying its flag.”
8. MARITIME CRIME MANUAL, supra note 6, at 180–81.

104
Rudderless and Adrift Vol. 106

to convenience, may not claim any of the nationalities in question with re-
spect to any other State and may be assimilated to a ship without national-
ity. 9

In practical terms, a vessel without nationality can take two forms. It can
be a vessel that is truly stateless, that is, not “entitled to fly” the flag of any
State. 10 Alternatively, it can be a vessel that may in fact be entitled to fly the
flag of a State, but due to some legal infraction, it may be “assimilated” to
statelessness. States may have different understandings of how a vessel may
be assimilated to statelessness. Under customary international law, a State
may assimilate a vessel as stateless if its master makes a conflicting claim of
nationality or a claim of nationality that is refuted by the flag State. 11 Ulti-
mately, what constitutes “without nationality” or statelessness is a domestic
determination made by each State, as shaped by international law.

B. What is the Jurisdictional Consequence or Significance of a Vessel Being

Without Nationality?

As elegantly stated in the Maritime Crime Manual, a ship (vessel) without na-
tionality “is the term employed in UNCLOS that brings into play a series of
otherwise unavailable enforcement options.” 12 One such enforcement op-
tion is the right of visit, which is the means by which a vessel reasonably
suspected, inter alia, of being without nationality can be stopped, boarded,
and investigated to the extent necessary to confirm its nationality. 13
Once statelessness (either true statelessness or through assimilation to
statelessness) is confirmed through the domestic mechanisms of a would-be
enforcing State, another significant “otherwise unavailable enforcement op-
tion” arises. This is the ability of that State to assert some level of jurisdiction
over the vessel without having to worry about jurisdictional impediments
that otherwise might exist if the vessel were properly flagged by another

9. Id. at 179.
10. UNCLOS, supra note 1, art. 91.
11. A conflicting claim of nationality may occur, for example, when a vessel flies the
flag of State X but its master makes a verbal claim of nationality of State Y. Flag State
refutation, as the term implies, is when a vessel makes a single claim of nationality that, upon
subsequent inquiry, is refuted or disclaimed by the purported flag State. Recall that under
UNCLOS, supra note 1, art. 91, flag States are required to “issue to ships to which it has
granted the right to fly its flag documents to that effect.”
12. MARITIME CRIME MANUAL, supra note 6, at 183.
13. UNCLOS, supra note 1, art. 110.

105
International Law Studies 2025

State. The principal jurisdictional constraint related to a properly flagged ves-

sel is that such a vessel is subject to the exclusive jurisdiction of its flag State
on the high seas. 14 The absence of a flag State in the case of vessel stateless-
ness (either true or through assimilation) removes this jurisdictional impedi-
ment, and opens the vessel up to exercises of jurisdiction by any State that
wishes to assert jurisdiction.
As to the extent of jurisdiction a State may exert over a stateless vessel,
this is a product of international law and domestic (national) implementation.
On the international law side, according to the Maritime Crime Manual, there
is no settled answer to this question. 15 There are two options: (a) States may
determine that they can treat the vessel as one of the boarding State’s own
nationality and, as a consequence, the boarding State may assert the same
jurisdiction over the suspect vessel as it could assert over a vessel of its own
nationality; (b) States may determine that the statelessness of the vessel does
not suffice to assert jurisdiction over it and the persons on board. Accord-
ingly, they would assert jurisdiction only if there is some other jurisdictional
link with the activity of the vessel or the persons concerned.
In the latter case, absent another jurisdictional link, 16 the vessel would
escape any enforcement or adjudicative consequences for its criminal activi-
ties. 17 This is generally objectionable under the international scheme. As the
Maritime Crime Manual puts it, “[t]he idea that there are ‘jurisdiction-free’ ar-
eas at sea where the conduct of persons and vessels is entirely unregulated is
objectionable under international law and to States.” 18
It is important to note that even if a stateless vessel as a whole may es-
cape the consequences of its crimes under the second theory set out above,
the same may not hold true for the individual crew members. The persons
on board a vessel without nationality have their own personal nationalities.
Their individual States also have potential jurisdictional powers over them—
and also standing in respect of any violation of international law against

14. Id. art. 92(1).

15. See MARITIME CRIME MANUAL, supra note 6, § 15.4.
16. An example of a possible link is when a boarding team member is harmed by a
person on board the suspect vessel during the boarding operation. See id. at 185–86 for a
detailed list of such possible “other jurisdictional links.”
17. This conclusion is driven by the fact that in this hypothetical, the vessel is stateless.
Thus, there is no State that can assert flag State jurisdiction over that vessel.
18. Id. at 182.

106
Rudderless and Adrift Vol. 106

them. 19 Thus, theoretically, even if a boarding State declines to exercise ju-

risdiction over a stateless vessel and all those aboard it who are engaged in
criminal activity, that boarding State could individually detain crew members
at the request of their State of nationality and turn them over to that State
for further action in accordance with that State’s national laws.

IV. INTERNATIONAL ENTITLEMENTS AND RESTRICTIONS RELATED

TO VESSELS WITHOUT NATIONALITY

As just discussed, States generally subscribe to two divergent approaches

when it comes to the jurisdictional effect of vessel statelessness. The first
approach is that statelessness subjects the vessel and those aboard it to the
full prescriptive, enforcement, and adjudicative jurisdiction of any State to
the same extent as that State would have over one of its flagged vessels. The
second approach is that there is no such plenary jurisdiction; jurisdiction ex-
ists only to the extent that it is based on something other than the vessel
being stateless. 20 Which approach is correct; or more accurately, is either of
these approaches either compelled or forbidden under the law of nations? 21
The conventional (or treaty) law of nations, as embodied in UNCLOS,
does not answer this question. All it says, in Article 92(2), is that “[a] ship
which sails under the flags of two or more States, using them according to
convenience, may not claim any of the nationalities in question with respect
to any other State, and may be assimilated to a ship without nationality.” This
provision is unsatisfactory in several ways. First, it only relates to one of sev-
eral means by which a vessel can be considered stateless for jurisdictional
purposes; it is entirely silent as to other means. Also, it provides no guidance
at all on the ultimate issue, which is the jurisdictional consequence of a vessel
being “assimilated to a ship without nationality.”
Since treaty law, as embodied in UNCLOS, is unsatisfactory in terms of
the effect of vessel statelessness, perhaps other sources of international law

19. Arguably, the “unity of the vessel” principle would not be in play with respect to a
stateless vessel.
20. For ease of communication purposes, the first approach will be referred to as the
more assertive approach, and the second as the less assertive approach.
21. In fairness, it is not clear whether States falling into the more assertive camp do so
as a matter of conviction, or merely because they have not gone through the process of
adopting the more assertive approach. Adopting the more assertive approach requires an
affirmative invocation of the entitlement under international law, to the extent one exists.
Thus, the less assertive approach is the default position of every State unless and until it
affirmatively acts to avail itself of more assertive entitlements.

107
International Law Studies 2025

are more instructive. Another such source is customary international law,

which focuses not on the language of treaties or other international agree-
ments, but rather on the practice of States. Specifically, the term “customary
international law” refers to international obligations of States resulting from
a general and consistent practice of States that they follow from a sense of
legal obligation. 22 A doctrine or principle that rises to the level of customary
international law is binding on States to the same extent as treaty law. 23 Un-
fortunately, as previously discussed, there does not appear to be consistent
State practice on the issue of the effect of vessel statelessness. Since an ele-
ment of the customary international law formula is missing, it cannot be said
that customary international law either compels or forbids either of the ap-
proaches described above with respect to stateless vessels.
Thus, we are left with international conventional law that is largely silent
on the issue of the jurisdictional effect of vessel statelessness, and divergent
State practice that largely falls into one of two camps: one that is more per-
missive (in terms of jurisdictional entitlements), the other more restrictive.
In short, there is no definitive “rule of international law.” 24 What does this
mean in terms of a State’s legal entitlements, and more precisely, does the
absence of a single accepted rule of international law constrain a State by
requiring it to default to the less assertive option, or does it empower a State
to adopt and utilize the more assertive option if doing so best suits the State’s
purposes? This issue will be examined below.

22. See, e.g., Jordan J. Paust, Customary International Law: Its Nature, Sources and Status as
Law of the United States, 12 MICHIGAN JOURNAL OF INTERNATIONAL LAW 59, 61 (1990)
(“customary international law actually has two primary components which must generally
be conjoined: (1) patterns of practice or behavior, and (2) patterns of legal expectation,
‘acceptance’ as law, or opinio juris”).
23. Id. at 64 & n.14.
24. While it is true that other sources of international law exist, they are not as useful
in examining whether there is a “rule” of international law applicable to all States. For ex-
ample, opinions of international courts and tribunals, though extraordinarily powerful
sources of international law, are limited only to the States involved in any particular pro-
ceeding. See, e.g., UNCLOS, supra note 1, art. 296 (“Any decision rendered by a court or
tribunal having jurisdiction [over a dispute between States Parties concerning the interpre-
tation or application of UNCLOS] . . . . shall have no binding force except between the
parties and in respect of that particular dispute.”).

108
Rudderless and Adrift Vol. 106

A. What is the Effect of the Absence of a Rule of International Law?

In the seminal Lotus case, the issue that was presented was whether a State
(Turkey) could exercise jurisdiction over a foreign (French) vessel, the Lotus,
and those aboard it following a collision that occurred on the high seas be-
tween that vessel and a Turkish vessel, or whether such jurisdiction resided
exclusively with the flag State (France). 25 A “fundamental” principle the Per-
manent Court of International Justice was confronted with, which became
the focal point of its analysis, was whether, as the French contended, “the
Turkish Courts, in order to have jurisdiction, should be able to point to some
title to jurisdiction recognized by international law in favour of Turkey,” or
whether, as the Turkish contended, international law “allows Turkey juris-
diction whenever such jurisdiction does not come into conflict with a prin-
ciple of international law.” 26 After examining general international law, the
Court ultimately concluded that “the contention of the French Government
to the effect that Turkey must in each case be able to cite a rule of interna-
tional law authorizing her to exercise jurisdiction, is opposed to . . . generally
accepted international law.” 27 Instead, the focus of the inquiry was on
“whether or not under international law there is a principle which would
have prohibited Turkey, in the circumstances of the case,” from exercising
jurisdiction as it did. 28 The Court’s underlying rationale was stated thusly:

[The absence of a definitive rule] leaves [States] a wide measure of discre-

tion, which is only limited in certain cases by prohibitive rules; as regards
other cases, every State remains free to adopt the principles which it regards
as best and most suitable. This discretion left to States by international law
explains the great variety of rules which they have been able to adopt with-
out objections or complaints on the part of other States . . . . In these cir-
cumstances all that can be required of a State is that it should not overstep
the limits which international law places upon its jurisdiction; within these
limits, its title to exercise jurisdiction rests in its sovereignty. 29

25. S.S. Lotus (Fr. v. Turk.), Judgment, 1927 P.C.I.J. (ser. A) No. 10 (Sept. 7). The
Turkish vessel, the Boz-Kourt, sank and eight Turkish nationals were killed. The Permanent
Court of International Justice stated the issue thusly: “whether or not there exists a rule of
international law limiting the freedom of States to extend the criminal jurisdiction of their
courts to a situation uniting the circumstances of the present case.” Id. at 21.
26. Id. at 18.
27. Id. at 19.
28. Id. at 21.
29. Id. at 19.

109
International Law Studies 2025

In short, the case stands for the proposition that States are free to do
what they want as long as there is no “rule of international law limiting the
freedom of [the State]” to act as it desires. 30 This principle, the Lotus princi-
ple, has endured and evolved into a foundational principle of international
law.

B. Is the More Assertive Approach to Stateless Vessel Jurisdiction Prohibited by

International Law?

The United States utilizes an assertive approach, which will be analyzed be-
low. This is not to suggest that the U.S. approach is the “best” approach;
each State has to decide for itself what works best for it. The purpose of
analyzing the U.S.’s approach will be to demonstrate just what an assertive
jurisdictional approach looks like, and then ultimately to consider whether
such an approach is illegal under international law.

1. The U.S. Approach

The Maritime Drug Law Enforcement Act (MDLEA) is the principal U.S.
law that criminalizes the drug trade at sea. 31 In terms of prescriptive, enforce-
ment, and adjudicative jurisdiction, the law is made applicable to “vessels
subject to the jurisdiction of the United States,” which under the act includes
vessels without nationality and vessels assimilated to a vessel without nation-
ality. 32 The act goes on to define a vessel without nationality as including:

(A) a vessel aboard which the master or individual in charge makes a

claim of registry that is denied by the nation whose registry is claimed;

(B) a vessel aboard which the master or individual in charge fails, on

request of an officer of the United States authorized to enforce applicable
provisions of United States law, to make a claim of nationality or registry
for that vessel;

(C) a vessel aboard which the master or individual in charge makes a

claim of registry and for which the claimed nation of registry does not af-
firmatively and unequivocally assert that the vessel is of its nationality; and

30. Id. at 21.

31. In its current form, it resides at 46 U.S.C. ch. 705.
32. 46 U.S.C. § 70502(c).

110
Rudderless and Adrift Vol. 106

(D) a vessel aboard which no individual, on request of an officer of the

United States authorized to enforce applicable provisions of United States
law, claims to be the master or is identified as the individual in charge, and
that has no other claim of nationality or registry [as recognized in the
MDLEA]. 33

It should be noted that the United States specifically amended its juris-
dictional scheme as set out above to make it more assertive following its
ratification of the 1988 Vienna Drug Convention, Article 4 of which, as pre-
viously discussed, requires signatory States to amend their jurisdictional laws
as necessary to enhance the convention’s effectiveness. 34 However, lest it be
contended that the United States is only more jurisdictionally assertive in the
narcotics trafficking context, it should be noted that the United States has
also adopted the exact same jurisdictional formula in its fishery enforcement
laws with respect to non-U.S. vessels, thus demonstrating that the United
States is dedicated to this jurisdictional scheme and convinced of its lawful-
ness under international law. 35

2. Is the U.S. Approach Illegal Under International Law?

In 2024, the U.S. Court of Appeals for the Ninth Circuit in United States v.
Marin applied the Lotus principle to uphold the U.S.’s utilization of the more
assertive jurisdictional scheme in the MDLEA. 36 In that case,

33. 46 U.S.C. § 70502(d)(1). Recognized means of claiming nationality for purposes of

this law are: (1) possession on board the vessel and production of documents evidencing
the vessel’s nationality; (2) flying its State’s ensign or flag; or (3) a verbal claim of nationality
or registry by the master or individual in charge of the vessel. 46 U.S.C. § 70502(e).
34. See treaties cited, supra note 3, and accompanying text.
35. 16 U.S.C. § 1802(49) defines the term “vessel subject to the jurisdiction of the
United States” for purposes of that law as having “the same meaning such term has in
section 70502(c) of title 46.” Interestingly, the United States is not alone in its apparent
belief that stateless fishing vessels can be the subject of enforcement jurisdiction. See Indian
Ocean Tuna Comm’n [IOTC], On Vessels Without Nationality, Res. 16/05, ¶ 3, IOTC Circ.
2016-54 (May 31, 2016), [Link]
lar_2016-054_-_CMMs_adopted_in_2016E.pdf (“Contracting Parties (Members) and Co-
operating Non-Contracting Parties (CNCPs) are encouraged to take effective action in ac-
cordance with international law, including, where appropriate, enforcement action, against vessels with-
out nationality that are engaging, or have engaged, in fishing or fishing related activities in the
[Indian Ocean Tuna Commission’s] area of competence . . . .” Id. (emphasis added)).
36. United States v. Marin, 90 F.4th 1235 (9th Cir. Jan. 17, 2024).

111
International Law Studies 2025

Defendants were arrested after the U.S. Coast Guard interdicted their ‘go-
fast’ speedboat, which was carrying at least 1,000 kilograms of cocaine, on
the high seas off the coast of Ecuador. The vessel carried no nationality
flag, but [two vessel occupants, including Marin] made a verbal claim of
Ecuadorian nationality for the vessel. The Ecuadorian government, how-
ever, neither confirmed nor denied nationality. The United States treated
the vessel as stateless (i.e. without nationality) and exercised jurisdiction. 37

The defense in that case conceded that international law allows States to ex-
ercise jurisdiction over stateless vessels. Their challenge related to the issue
of whether the vessel was stateless at all; specifically, whether subsection (C)
of § 70502(d) of the MDLEA (the claimed State of registry does not affirm-
atively and unequivocally assert that the vessel is of its nationality) was a
lawful basis for the United States’ assertion of jurisdiction in this case. 38 The
defense argued that this provision of law violated a “rule of international
law” that an oral claim to nationality constitutes a prima facie showing of
nationality, which can only be rebutted by a denial—rather than merely a
failure to confirm or deny—by the claimed flag State.
In response to this contention, the court opined that

Defendants do not identify a rule of international law requiring an oral

claim to nationality be rebuttable only by a denial by the claimed flag state.
In fact, such a rule could lead to the untenable result that neither the board-
ing state nor the claimed flag state have jurisdiction over a vessel so long
as the claimed flag state does not confirm or deny nationality—undermin-
ing international law’s role of facilitating the “achievement of common
aims.” 39

Since no international law addresses whether a State may consider a vessel

to be without nationality and exercise jurisdiction under such circumstances,
“doing so is not contrary to international law under the Lotus principle.” 40
Ultimately, the court determined that that it had no reason to conclude that
the U.S.’s exercise of jurisdiction in that case under the more assertive ap-
proach as manifested in the MDLEA “overstep[ped] the limits which inter-
national law places upon ․ . . jurisdiction.” 41

37. Id. at 1237.

38. Id. at 1242.
39. Id. at 1243 (footnotes omitted).
40. Id. at 1242.
41. Id. (quoting Lotus, supra note 25, at 19).

112
Rudderless and Adrift Vol. 106

C. What Does All This Mean?

A U.S. court ruling is not determinative on the issue outside the United
States. However, that ruling squarely addressed the international legality of
the more assertive approach as manifested in U.S. law and determined that
there was no rule of international law forbidding the exercise of jurisdiction
at sea under this approach. Assuming this conclusion is correct, application
of the Lotus principle would lead to a conclusion that States are free to adopt
that approach to the extent they desire. Furthermore, in doing so, those
States will not be acting in contravention of any principle of international
law. Thus, as long as the rationale of the U.S. court isn’t rejected as nonsen-
sical, its analysis and rationale provide powerful support to a State that
chooses to adopt a more assertive approach to jurisdiction at sea.
In addition, U.S. practice provides strong support as well. One State’s
practice, to be sure, does not equate to the consistent and widespread prac-
tice of States sufficient to constitute a binding principle of international law.
However, the U.S. jurisdictional practice has been more assertive for decades
without any significant objections or complaints. If anything, U.S. practice
has become even more assertive as time has passed and gaps in the enforce-
ment scheme have been revealed. 42 In fact, many of the States that may be
particularly aggrieved by the United States’ more assertive approach to juris-
diction over stateless vessels have signed bilateral agreements with the
United States that, in some cases, incorporate some of the very practices that
the United States has unilaterally effected in its MDLEA. 43 The fact that the-
ory (application of the Lotus principle) and practice (the United States’ long-

42. The United States has made stateless vessels subject to its law enforcement juris-
diction for narcotics offenses since 1980. See Act to Facilitate Increased Enforcement by the
Coast Guard of Laws Relating to the Importation of Controlled Substances, Pub. L. No.
96-350, § 3, 94 Stat. 1159, 1160 (1980). The definition of “vessel without nationality”
evolved over the years, with the provision that was challenged in the Marin case not being
added until 1996. See Act to Authorize Appropriations for the United States Coast Guard,
Pub. L. 104-324, § 1138, 110 Stat. 3901, 3988 (1996).
43. For example, the Agreement Between the Government of the United States of
America and the Government of the Republic of Costa Rica Concerning Cooperation to
Suppress Illicit Traffic, in force since 1999, provides that “Operations to suppress illicit
traffic pursuant to this Agreement shall be carried out only against suspect vessels and air-
craft, including vessels and aircraft without nationality, and vessels assimilated to vessels
without nationality.” Agreement Concerning Cooperation to Suppress Illicit Traffic, Costa
Rica-U.S., pt. VII(1), Dec. 1, 1998, T.I.A.S. 13005.

113
International Law Studies 2025

standing utilization of the more assertive approach without serious chal-

lenge) align should give comfort to other States wishing to adopt a more
assertive approach to jurisdiction at sea over stateless vessels that such an
approach is legal under international law. Or at least that such an approach
is not illegal—which equates to the same thing.

V. ANTICIPATORY REBUTTAL

Some commentators have seized upon dicta in the International Court of

Justice’s Arrest Warrants case that Lotus “represents the high water-mark of
laissez-faire in international relations and an era that has been significantly
overtaken by other tendencies” to argue that the Lotus principle is no longer
valid in jurisdictional determinations. 44 Were this argument correct, the
Ninth Circuit opinion and this article’s contentions generally would be ne-
gated; proponents of a more assertive approach to jurisdiction at sea would
have to rely upon explicit grants of authority under international law on
which to base their approach—grants that, admittedly, do not exist. Fortu-
nately, these arguments are not correct for the following reasons:

(1) The focus of the Arrest Warrants case was on a State’s assertion of
universal jurisdiction, which, due to its universal nature, is subject to strin-
gent limitations on when it can be exercised. 45 Thus, principles enunciated
in that case are inapposite to exercises of jurisdiction in other-than-universal
cases.

(2) The Lotus case was cited and applied as a governing legal principle by
both the majority and the dissent in both the M/V Norstar (2019) 46 and En-
rique Lexie (2020) 47 cases, thus demonstrating its continued validity and, in-
deed, centrality in maritime international law cases.

44. Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), Judgment, 2002 I.C.J.
3, 78, ¶ 51 (Feb. 14) (separate opinion by Higgins, Kooijmans & Buergenthal, Js.).
45. For example, note the very stringent definition of piracy in UNCLOS, supra note 1,
art. 101, that must be satisfied before a State can exercise universal jurisdiction over pirates
and acts of piracy per UNCLOS Article 105.
46. M/V “Norstar” (Pan. v. It.), Case No. 25, Judgment of Apr. 10, 2019, ITLOS Rep.
2018–2019, at 10.
47. “Enrica Lexie” Incident (It. v. India), Case No. 2015-28, Award (Perm. Ct. Arb.
2020).

114
Rudderless and Adrift Vol. 106

(3) Contemporary academic analysis, based on the M/V Norstar and En-
rique Lexie cases, is that “for good reason . . . the Lotus decision is integral to
our discussions on the international law of jurisdiction.” 48

For these reasons, to play off a famous Mark Twain quip, the reports of
Lotus’ death are greatly exaggerated—in fact, the case and its seminal princi-
ple remains alive and well, as does the rationale of the Ninth Circuit in Marin
and the exhortations contained in this article. 49

VI. CONCLUSION AND A PLEA

As this analysis has shown, application of the Lotus principle—a bedrock of

international law—demonstrates that there is no impediment to a State
adopting a more assertive posture towards jurisdiction over vessels without
nationality (and those aboard them). Such a more assertive approach is fully
in line with widely subscribed international conventions that exhort States to
expand their jurisdictional reach at sea. Accompanying the legal rationale for
taking a more assertive stance is a purely practical one—why would a State
choose to effectively grant immunity and impunity to transnational orga-
nized criminals and other purveyors of disorder and insecurity at sea who
(not surprisingly) choose to forego the expense, hassle, and visibility that
comes with subjecting themselves to a flag State?
Ideally, readers will take comfort in the realization that a more assertive
jurisdictional stance is not only encouraged, but is entirely permissible. If
they do so and, as a result, convince lawmakers in their countries to demon-
strate the necessary will to adopt a more vigorous jurisdictional stance to-
ward stateless vessels, then that will strengthen the enforcement regime at
sea to the ultimate benefit of all (except the criminals).

48. Máté Csernus, Might Contain Traces of Lotus: The Limits of Exclusive Flag State Jurisdic-
tion in the Norstar and the Enrica Lexie Cases, 36 LEIDEN JOURNAL OF INTERNATIONAL LAW
947, 969 (2023).
49. Reportedly, upon seeing an (obviously inaccurate) obituary of himself, Twain is said
to have joked “the reports of my death are greatly exaggerated.” Emily Petsko, Reports of
Mark Twain’s Quote About His Own Death Are Greatly Exaggerated, MENTAL FLOSS (May 15,
2023), [Link]
ark-twains-death-are-greatly-exaggerated.

115