In a short decision, the Court of Appeals for the Eleventh Circuit held that agreements (often called “Bilateral Agreements) between the United States and foreign states/nations are sufficient to establish how a foreign nation can consent and waive objections to jurisdiction under the MDLEA.
In United States v. Zapata, the USCG interdicted a sailing vessel named El Senor de los Vientos in international waters off the coast of Colombia. During right-to-visit questioning, the master of the vessel made a verbal claim of Panamanian registry. USCG thereafter contacted the Republic of Panama to confirm or deny the vessel’s registry as required under the Salas-Becker Agreement.2 After some back and forth between Panama and the USCG for approximately ten (10) hours, Panama granted authorization. Once the USCG officers boarded the vessel, they found over four hundred kilograms of cocaine.
The defendants were brought to the U.S. for prosecution under the MDLEA, and after trial, defendant Zapata appealed her conviction arguing that the Salas-Becker Agreement is insufficient to confer jurisdiction over the vessel because it was only an “arrangement” that is not authorized by Congress like a treaty.
The Eleventh Circuit did not agree with Zapata’s argument. More specifically, pursuant to 46 U.S.C. § 70502(c)(2)(A), a foreign nation can consent or waive objection “by radio, telephone, or similar oral or electronic means.” And the method by which the two nations communicate can be articulated in an agreement:
Because the MDLEA does not state how a foreign nation will give its consent or waive its objection, see 42 U.S.C. § 70502(c)(1)(C), the United States can enter into an agreement with a foreign nation, either by formal or informal means, that addresses how the foreign nation can consent and waive objections to jurisdiction. Here, Panama and the United States reached an informal binding agreement that allows Panama to consent and waive its objections to jurisdiction. Therefore, the United States properly exercised jurisdiction over the vessel by following the requirements of the Salas-Becker Agreement.
The Eleventh Circuit also noted that the United States jurisdiction was conclusively proven, under the Salas-Becker Agreement, because the U.S. Secretary of State issued its certification detailing the process between the two nations.
United States v. Zapata, No. 20-10385, 2021 WL 4947103, at *2 (11th Cir. Oct. 25, 2021).
- The formal name is the Supplementary Arrangement Between the Government of the United States of America and the Government of the Republic of Panama to the Arrangement Between the Government of the United States of America and the Government of Panama for Support and Assistance from the United States Coast Guard for the National Maritime Service of the Ministry of Government and Justice.
- The formal name is the Supplementary Arrangement Between the Government of the United States of America and the Government of the Republic of Panama to the Arrangement Between the Government of the United States of America and the Government of Panama for Support and Assistance from the United States Coast Guard for the National Maritime Service of the Ministry of Government and Justice.