Enrica Lexie
UNCLOS confers “exclusive jurisdiction” to the flag State over vessels on the high seas (Article 92), or to the coastal State over artificial islands, installations and structures within its EEZ (Article 60), this effectively means that all other States are generally precluded from exercising their ju- risdiction with respect to the same matters.
In all other cases, however, the age-old question posed by the Lotus court, i.e., whether interna- tional law prohibits what is not expressly permit- ted, or permits what is not expressly prohibited, cannot readily be answered in an area such as the EEZ, where the rights and obligations of States are only partially defined.
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Consider, for instance, Article 33(1) of UNCLOS, which specifically allows a coastal State, within its contiguous zone, to exercise control neces- sary to prevent and punish infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea. Does this rule, by implication, preclude a coastal State from asserting jurisdiction over any crimes committed within the contiguous zone itself?
In its ordinary meaning, the word “control”, as used in Article 33(1) of UNCLOS, implies some physical action, such as stopping and inspecting a ship. In this sense, it is closely related to the coastal State’s enforcement jurisdiction. Absent the permissive rule of Article 33(1) of UNCLOS, it would generally be unlawful for a coastal State to exercise control over a foreign vessel within the contiguous zone. The Lotus Court itself, back in 1927, acknowledged that an act of enforcement on the high seas (e.g., boarding a foreign vessel for the purpose of investigating and taking evi- dence) “would undoubtedly be contrary to inter- national law.” Therefore, the rule of Article 33(1) can be properly understood as a very limited and targeted expansion of the coastal State’s enforce- ment jurisdiction within the contiguous zone, rather than a purported restriction on a coastal State’s general prescriptive jurisdiction.
UNCLOS contains at least one rule, however, that clearly and unmistakably speaks to member States’ prescriptive jurisdiction. Article 62(4) de- fines what type of laws a coastal State may adopt with respect to conservation measures within its EEZ, and requires other member States to com- ply with such laws. Does the existence of this permissive rule then imply that coastal States may not validly adopt other laws relating to acts committed within the EEZ?
Here again, Article 62(4) of UNCLOS must not be read in isolation, but should be placed within the broader context of the EEZ rules. Specifically, Ar- ticle 73(1) of UNCLOS grants coastal States the right to the take such measures, including board- ing, inspection, arrest and judicial proceedings, as may be necessary to ensure compliance with the resource conservation laws and regulations adopted by it in conformity with UNCLOS.
Thus, just as in the case of Article 33(1) of UN- CLOS, the real purpose of Articles 62(4) and 73(1) is to expand the coastal State’s enforcement juris- diction within the EEZ, but in a targeted way, and the limitation in this case is set by restricting the subject matter of the laws that may be enforced by the coastal State within the EEZ. The coastal State may well be entitled to enact other types of laws relating to its EEZ, but such laws clearly can- not be enforced within the EEZ itself, and remain subject to the general principles set out in the Lo- tus case with respect to limitations on enforce- ment jurisdiction, as well as the further specific limitations on enforcement jurisdiction set out in Article 97 of UNCLOS (quoted above).
Finally, the effect of Article 59 of UNCLOS must be considered. Starting from the premise that the application of general criminal statutes to acts committed within the EEZ is not a matter specifically attributed to the coastal State or to other States, Article 59 of UNCLOS now seems to require that this issue be decided on the basis of equity. This is a potentially important departure
ILSA Quarterly » volume 22 » issue 2 » December 2013
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