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Scenario: Fred and his wife Sue are crossing the Atlantic Ocean on their yacht and are hundreds of miles from the closest nation. They jump into the water for a quick swim, and while in the water, Fred drowns Sue.
Out of confidence, he even live streamed the crime on the internet as he is sure that no jurisdiction can prosecute him since the crime occurred outside of all nations and even outside of a boat that is registered in a nation.
Is he right?
Can someone by prosecuted if they commit a crime outside of all jurisdictions?
This is a tautological question. If they can be prosecuted, then they are by definition subject to the jurisdiction they are being prosecuted under, and if they are outside of all jurisdictions, then there is no jurisdiction they could be prosecuted under.
Also, if they are outside of all jurisdictions, then they cannot possibly commit a crime, because what is or isn't a crime is defined by the laws of a jurisdiction.
So, the question as posed is non-sensical.
The more relevant question is: what, if any, jurisdiction do their actions fall under?
he is sure that no jurisdiction can prosecute him since the crime occurred outside of all nations and even outside of a boat that is registered in a nation.
Is he right?
I will answer from the perspective of Germany. There are at least three different ways in which German penal code could apply here:
§4 StGB says that the StGB (Strafgesetzbuch (federal penal code)) applies on German ships and aircraft. So, if the yacht is registered in Germany, then German penal code applies.
§7,I StGB says that the StGB applies when the victim is a German citizen and the deed is either a crime in the jurisdiction where it occurred or the place where the crime occurred does not have criminal prosecution (this is intended to cover both the scenario from your question, and the scenario where someone commits a crime in a war zone or failed state where there is no functioning prosecution).
§7,II StGB says that the StGB applies when the perpetrator is a German citizen or became a German citizen after the crime.
So, if either the yacht is German, or Sue is German, or Fred is German or later becomes German, then German penal code applies.
Many countries have similar laws.
In general, any country can pass any law it pleases. (Modulo international treaties, but a country can also pass a law to ignore those, if it wants to.) The question is only whether the country a) has the means to enforce those laws, and b) is willing to accept the consequences of passing and/or enforcing those laws.
If France wants to pass a law that says that if a Canadian citizen bumps into a US citizen in Mexico, while a Swedish citizen is watching, then the nearest Icelandic citizen must go to jail in Switzerland, and the Uruguayan army must invade Mexico to apprehend said Icelandic citizen and transport them to Switzerland, they can pass this law. And if this situation actually occurs, then then under French law, the Uruguayan army really is required to invade Mexico and said Icelandic citizen has committed a crime.
It's just that nobody will care. Uruguay will not send its army, Switzerland will not keep a jail cell ready, and Mexico will not prepare to extradite. And France has no desire of dealing with the consequences of itself invading Uruguay in order to force them to enforce the law.
On a more serious note, many countries assume so-called universal jurisdiction over crimes they consider particularly heinous or that they consider to affect humanity as a whole. This means, the country considers certain acts a crime regardless of where they occur, or what the nationalities of the perpetrator and the victim are, or whether they are legal where they occurred. Such crimes commonly include:
Belgium famously has such a law which gained some press when people filed charges against high-ranking members of the US military and the Bush administration after the Abu Ghuraib scandal.
More exactly, nations will not regard places outside of their physical limits as outside of their jurisdictions.
Traditionally, a nation has regarded any ship flying its flag as under its jurisdiction, and a place where it may enforce its laws. More recently, many nations will undertake to enforce laws in cases where their citizens are the victims, or in some cases the perpetrators of crimes even within other nations, and more freely on the high seas outside the physical limits or territorial waters of any country.
Historically, all nations undertook to enforce laws against piracy wherever they might be committed.
Several countries, including the UK and the US, now treat the UN Law of the Sea convention as part of their national law, which defines as piracy: "illegal acts of violence or detention ... against persons or property on board such ship or aircraft" This would include the situation described in the question.
Therefore such actions could and quite likely would be prosecuted by any of several countries, depending on the registry of the vessel and the nationalities of those involved.
18 U.S. Code § 7 provides that:
The term “special maritime and territorial jurisdiction of the United States”, as used in this title, includes:
(1) The high seas, any other waters within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State, and any vessel belonging in whole or in part to the United States or any citizen thereof, or to any corporation created by or under the laws of the United States, or of any State, Territory, District, or possession thereof, when such vessel is within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State.
...
(7) Any place outside the jurisdiction of any nation with respect to an offense by or against a national of the United States.
(8) To the extent permitted by international law, any foreign vessel during a voyage having a scheduled departure from or arrival in the United States with respect to an offense committed by or against a national of the United States.
This US DOJ page says:
Among the offenses within the special maritime and territorial jurisdiction of the United States are the crimes of murder, manslaughter, maiming, kidnapping, rape, assault, and robbery. Pursuant to 18 U.S.C. § 7(1) there is also jurisdiction over such offenses when they are committed on the high seas or any other waters within the admiralty and maritime jurisdiction of the United States that is out of the jurisdiction of any particular state. See JM 9-20.000 et seq.
The page "Maritime Offenses" from the law offices of Trombley and Hanes says:
The Federal government also exercises jurisdiction over certain maritime offenses. There is Federal jurisdiction for offenses committed on American vessels in the territorial waters, harbors and inland waterways of foreign nations. See United States v. Flores, 289 U.S. 137 (1933).
...
A number of Title 18 sections specifically declare certain conduct to be a Federal crime if committed “within the special maritime and territorial jurisdiction of the United States.” See, e.g., murder, 18 U.S.C. § 1111. In some instances, the Assimilative Crimes Act, 18 U.S.C. § 13, is also applicable. See also, 15 U.S.C. § 1175; 15 U.S.C. § 1243; 16 U.S.C. § 3372.
18 U.S. Code § 1111 (b) provides that:
(b) Within the special maritime and territorial jurisdiction of the United States,
Whoever is guilty of murder in the first degree shall be punished by death or by imprisonment for life;
Whoever is guilty of murder in the second degree, shall be imprisoned for any term of years or for life.
The Britannica Article on "Piracy" says:
Because piracy has been regarded as an offense against the law of nations, the public vessels of any state have been permitted to seize a pirate ship, to bring it into port, to try the crew (regardless of their nationality or domicile), and, if they are found guilty, to punish them and to confiscate the ship.
The UN page on Piracy says:
The 1982 United Nations Convention on the Law of the Sea (UNCLOS) provides the framework for the repression of piracy under international law, in particular in its articles 100 to 107 and 110. The Security Council has repeatedly reaffirmed “that international law, as reflected in the United Nations Convention on the Law of the Sea of 10 December 1982 (‘The Convention’), sets out the legal framework applicable to combating piracy and armed robbery at sea, as well as other ocean activities” (Security Council resolution 1897 (2009), adopted on 30 November 2009). Article 100 of UNCLOS provides that “[a]ll States shall cooperate to the fullest possible extent in the repression of piracy on the high seas or in any other place outside the jurisdiction of any State.” The General Assembly has also repeatedly encouraged States to cooperate to address piracy and armed robbery at sea in its resolutions on oceans and the law of the sea. For example, in its resolution 64/71 of 4 December 2009, the General Assembly recognized “the crucial role of international cooperation at the global, regional, subregional and bilateral levels in combating, in accordance with international law, threats to maritime security, including piracy”.
The UK Piracy Act of 1837 defined as a crime:
Whosoever, with intent to commit or at the time of or immediately before or immediately after committing the crime of piracy in respect of any ship or vessel, shall assault, with intent to murder, any person being on board of or belonging to such ship or vessel, or shall stab, cut, or wound any such person, or unlawfully do any act by which the life of such person may be endangered, shall be guilty of felony...
The more modern UK law, the Merchant Shipping and Maritime Security Act of 1997 embodies the UN law of the Sea convention, including its article 101, which says:
Piracy consists of any of the following acts:
(a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed—
(a) (i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft; (a) (ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;
The thing is: there is nothing to prevent a sovereign state from making laws whatever it wishes (subject to international agreements/treaties/conventions it signed, if any, and the extent it is prepared to flout those).
A country could make a law that assumes jurisdiction over whatever wherever — be it international waters, Mars, Alpha Centauri or even just blatantly some other country's territory. Of course it will have limited means of enforcing such laws. But should Fred ever happen to enter its domain of influence (be it its territory physically, or anything that it can impose sanctions upon), Fred will taste it all.
If you are on a boat, you are in the jurisdiction of the boat's registered country or the country. If it is not registered, the law of the owner's country applies.
If you are off a boat, you are a citizen of your country and it has jurisdiction over you.
No spot of permanently dry land known to mankind does not belong to any country.
