The USA see it differently, UNCLOS 82 succeeded 58 in their view. US courts held that to be true in US vs Postal.
In its efforts to enforce economic sanctions against Iran and Venezuela, the United States is straining the boundaries of traditionally accepted state behavior in some of the world’s busiest shipping lanes. It is walking a tightrope.
www.lawfareblog.com
Globally, UNCLOS has subsumed the 1958 Convention as the international law of the sea, though it is unratified by the United States. In law of the sea disputes, the Supreme Court and
multiple circuits hold that U.S. law incorporates UNCLOS only to the extent that it reflects customary international law. This leaves the 1958 Convention as controlling in U.S. courts. However, despite the U.S’s ratification of the 1958 Convention, courts considering it must still confront whether the relevant treaty provisions are “
self-executing.” This distinction, which has
perennially fuzzy edges, is instrumental to determining whether courts have jurisdiction to hear
treaty law claims. Self-executing treaty provisions are those that can
operate without implementing legislation. U.S. courts generally
regard such provisions as equivalent to federal statutes when the treaty clearly
authorizes executive action in “pursuance of its provisions” and where
existing legislation is adequate to enforce the treaty provision. Provisions that are not self-executing may create international commitments but are not binding federal law absent associated implementing legislation. The vast majority of treaty provisions are non-self-executing.
U.S. courts maintain that their jurisdictional bounds are exclusively constitutional or statutory and that customary international law is insufficient to restrict their authority on the high seas absent Congress
explicitly abdicating jurisdiction. The U.S. Court of Appeals for the Fifth Circuit tackled self-execution of 1958 Convention Article 6—curtailing jurisdiction over foreign vessels in international waters—in
United States v. Postal, which involved a drug-runner seized in the southern Caribbean. The Postal court found Article 6 not to be self-executing and therefore that it could not restrict the jurisdiction of U.S. courts. More broadly, international law defenses to U.S. jurisdiction generally fail unless the court holds the treaty provision to be truly self-executing or the claimant can prove the court is statutorily precluded from exercising jurisdiction in their specific scenario. While courts tend to uphold the principle of restricting the extraterritorial application of U.S. law, they are willing to distinguish
applications of the protective principle, granting U.S. courts high seas jurisdiction over offenses committed in violation of United States criminal law. That Postal and its progeny give the U.S. government remarkable latitude to justify extraterritorial jurisdiction on the high seas creates enormous friction with both the 1958 Convention and UNCLOS.