Enrica Lexie
from the Lotus Principle, in that future courts may now be required to balance the equities when more than one State wishes to assert its juris- diction within the EEZ in connection with a non- attributed matter.
Article 59 is not likely to have much of an impact with respect to the assertion of enforcement ju- risdiction within the EEZ, as this subject is more or less fully covered by general rules regard- ing the exercise of jurisdiction on board vessels (which belongs to the flag State, subject to spe- cific exceptions) and on artificial islands, installa- tions and structures (which belongs to the coastal State). For the assertion of prescriptive jurisdic- tion, however, where conflicts between two or more States are far more likely to occur, Article 59 may well require courts in the future to evaluate existing theories of extraterritoriality on the basis of equitable principles and to balance the inter- ests of two or more States, rather than applying default rules such as the Lotus Principle, which clearly favors the State that acts first in exercising its jurisdiction.
Conclusion
In cases like Lotus, which involve penal and ad- ministrative jurisdiction over the master and crew of vessels in situations involving collisions and other incidents of navigation in the EEZ or on the high seas, Article 97 of UNCLOS has fundamen- tally altered the application of the Lotus Principle, and exclusive jurisdiction in such cases now be- longs to the flag state of the responsible vessel.
In cases where Article 97 of UNCLOS does not apply, however, the basic analysis set out in the Lotus case remains relevant. Nevertheless, Ar- ticle 59 of UNCLOS may now require courts to go beyond the basic application of the Lotus Prin- ciple and balance the relevant equities where the underlying incident occurs in the EEZ and more than one State has the apparent right to assert its prescriptive jurisdiction.
. ILSA Quarterly » volume 22 » issue 2 » December 2013
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TO BROADEN HORIZONS
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