Enrica Lexie
within UNCLOS. Indeed, if a collision identical to the one involving the Lotus and Boz-Kourt were to occur today on the high seas, a court would most likely find in favor of France. This result is dictated by the clear wording of Article 97 of UN- CLOS, which acts as a conventional restriction upon Turkey’s independence – a restriction of the very type that the Lotus court, in 1927, looked for but could not find.
By contrast, the Enrica Lexie case cannot be so easily resolved because the allegedly criminal conduct in that case (i.e., the use of a firearm) does not fit neatly within the ambit of Article 97 of UNCLOS, which applies only to collisions and “other incident[s] of navigation” involving ships on the high seas (or, by extension, within the EEZ).
UNCLOS and the Lotus Principle
But if Article 97 of UNCLOS does not resolve the Enrica Lexie case, then what rules apply? Can we simply revert to the Lotus Principle and conclude that India is free to assert its prescriptive criminal jurisdiction over the matter in the absence of any international prohibition to the contrary? Unfortu- nately, the answer is not so simple, as it is nec- essary first to consider the extent to which the Lotus Principle is still relevant in a post-UNCLOS world.
An interesting feature of the EEZ regime is the fact that it is almost entirely framed in terms of permissive rules rather than prohibitions. Within the EEZ, “coastal States” are granted certain “sovereign rights” (Article 56(1)(a)), “jurisdiction” (Article 56(1)(b)), “exclusive rights” and “exclu- sive jurisdiction” (Article 60(1)), while “all States” enjoy enumerated “freedoms” (Article 58). For instance, coastal States “shall determine” al- lowable catches and related resource conserva- tion measures within their EEZ (Article 61), and “may,” in the exercise of their sovereign rights, take measures necessary to ensure compliance with laws and regulations adopted in conformity
with UNCLOS (Article 73).
By contrast, the list of obligations within the EEZ is much shorter. Apart from the clear prohibition of Article 97 (quoted above), UNCLOS provides that States other than the coastal State “shall comply” with the conservation and management laws enacted by the coastal State (Article 62), and all States must show “due regard” for the rights and obligations of other States (Articles 56(2) and 58(3)).
Significantly, Article 59 of UNCLOS provides its own rule for resolving conflicts regarding the at- tribution of rights and jurisdiction within the EEZ:
In cases where this Convention does not attribute rights or jurisdiction to the coastal State or to other States within the exclu- sive economic zone, and a conflict arises between the interests of the coastal State and any other State or States, the conflict should be resolved on the basis of equity and in the light of all the relevant circum- stances, taking into account the respective importance of the interests involved to the parties as well as to the international com- munity as a whole.
If restrictions upon the independence of States cannot be presumed (as the Lotus Principle teach- es), one might ask: What purpose is served by defining the EEZ regime almost entirely in terms of permissive rules rather than binding prohibi- tions? And why would a rule such as Article 59 of UNCLOS be needed if States indeed remained free to do what is not specifically proscribed by international law?
In a very limited class of cases, the manner in which a permissive rule is framed clearly implies a prohibition with respect to all other States. Thus, when UNCLOS confers “sovereign rights” on coastal States over natural resources within their EEZ (Article 56) or their continental shelf (Article 77), this strongly implies an absence of rights with respect to all other States. Similarly, when
ILSA Quarterly » volume 22 » issue 2 » December 2013
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