environment. In fact, the ensemble of rights and duties exercisable by coastal states
over their adjacent continental shelves can be broken down to those three categories.
In other words, this work entertains legal questions relating to the exercise by coastal
states of environmental, criminal, and civil jurisdiction, both on the prescriptive and
enforcement levels, over the continental shelf. It should also be borne in mind that it
deals exclusively with territorial jurisdiction of coastal states over maritime zones
adjacent to their shores.
Although UNCLOS mentions no “environmental jurisdiction”, it contains provisions disciplining environmental jurisdiction of coastal states, for instance, on the
EEZ. In accordance with Art. 56 (1) (b) (iii), in that zone the coastal state has
jurisdiction with regard to “the protection and preservation of the marine environment”. That is the case of a provision that awards civil and criminal jurisdiction on
environmental matters to the coastal state. Based on that article, combined with other
provisions of the Convention, coastal states may enact legislation and enforce
domestic measures within their EEZ.
The content of UNCLOS’ jurisdictional clauses is mostly civil, seldom criminal.
One of the few provisions that regulate criminal jurisdiction over a particular
maritime zone is Art. 27 (1), which determines that “the criminal jurisdiction of
the coastal State should not be exercised on board a foreign ship passing through the
territorial sea to arrest any person or to conduct any investigation in connection with
any crime committed on board the ship during its [innocent] passage”, except for a
handful of situations, which enable the coastal state to exercise criminal enforcement
jurisdiction over foreign vessels on transiting on their territorial waters.
Apart from Art. 27, the word “crime” is nowhere else in the Convention, neither is
the phrase “sanction”. The Convention makes scarce references to other vocabulary
that indicate existence of criminal jurisdiction: (i) “wrongful acts” in Art. 22 of
Annex III, concerning the liability of the contractor for any damage arising out of
“wrongful acts” in the conduct of its operations in the Area; (ii), “illicit”, in two
provisions relating to the criminal jurisdiction of coastal states to enforce measures
within their territorial sea against a foreign vessel suspected of illicitly trafficking
narcotic drugs;
45 or the international obligation to “cooperate in the suppression of
illicit traffic of narcotics on the high seas.
46 It follows that UNCLOS is not the most
adequate reference for the discussion of criminal jurisdiction over distinct maritime
zones. That was not the main goal of negotiators and the jurisprudence of the ITLOS
shows how delicate a topic such as criminal jurisdiction on the contiguous zone can
be, as an analysis of the Enrica Lexie case may evidence.
47
45 Art. 27 (1) (d) UNCLOS.
46 Art. 108 (1) UNCLOS.
47 That dispute stems from an incident which occurred on February 15, 2012, approximately 20.5
nautical miles off the West coast of India, thus in the Indian EEZ, involving the M/V Enrica Lexie,
an Italian-flagged tanker, and the ship St. Anthony, of Indian nationality. The incident is complex
and involves the murder of two Indian citizens by two Italian citizens who fired from an Italian
flagged vessel and produced the death effect on an Indian-flagged vessel, in the EEZ of India. The
core of the dispute relates to which party has jurisdiction to trial the Italian marines. The case was
96
4 Sovereignty and Jurisdiction in the Law of the Sea
over their adjacent continental shelves can be broken down to those three categories.
In other words, this work entertains legal questions relating to the exercise by coastal
states of environmental, criminal, and civil jurisdiction, both on the prescriptive and
enforcement levels, over the continental shelf. It should also be borne in mind that it
deals exclusively with territorial jurisdiction of coastal states over maritime zones
adjacent to their shores.
Although UNCLOS mentions no “environmental jurisdiction”, it contains provisions disciplining environmental jurisdiction of coastal states, for instance, on the
EEZ. In accordance with Art. 56 (1) (b) (iii), in that zone the coastal state has
jurisdiction with regard to “the protection and preservation of the marine environment”. That is the case of a provision that awards civil and criminal jurisdiction on
environmental matters to the coastal state. Based on that article, combined with other
provisions of the Convention, coastal states may enact legislation and enforce
domestic measures within their EEZ.
The content of UNCLOS’ jurisdictional clauses is mostly civil, seldom criminal.
One of the few provisions that regulate criminal jurisdiction over a particular
maritime zone is Art. 27 (1), which determines that “the criminal jurisdiction of
the coastal State should not be exercised on board a foreign ship passing through the
territorial sea to arrest any person or to conduct any investigation in connection with
any crime committed on board the ship during its [innocent] passage”, except for a
handful of situations, which enable the coastal state to exercise criminal enforcement
jurisdiction over foreign vessels on transiting on their territorial waters.
Apart from Art. 27, the word “crime” is nowhere else in the Convention, neither is
the phrase “sanction”. The Convention makes scarce references to other vocabulary
that indicate existence of criminal jurisdiction: (i) “wrongful acts” in Art. 22 of
Annex III, concerning the liability of the contractor for any damage arising out of
“wrongful acts” in the conduct of its operations in the Area; (ii), “illicit”, in two
provisions relating to the criminal jurisdiction of coastal states to enforce measures
within their territorial sea against a foreign vessel suspected of illicitly trafficking
narcotic drugs;
45 or the international obligation to “cooperate in the suppression of
illicit traffic of narcotics on the high seas.
46 It follows that UNCLOS is not the most
adequate reference for the discussion of criminal jurisdiction over distinct maritime
zones. That was not the main goal of negotiators and the jurisprudence of the ITLOS
shows how delicate a topic such as criminal jurisdiction on the contiguous zone can
be, as an analysis of the Enrica Lexie case may evidence.
47
45 Art. 27 (1) (d) UNCLOS.
46 Art. 108 (1) UNCLOS.
47 That dispute stems from an incident which occurred on February 15, 2012, approximately 20.5
nautical miles off the West coast of India, thus in the Indian EEZ, involving the M/V Enrica Lexie,
an Italian-flagged tanker, and the ship St. Anthony, of Indian nationality. The incident is complex
and involves the murder of two Indian citizens by two Italian citizens who fired from an Italian
flagged vessel and produced the death effect on an Indian-flagged vessel, in the EEZ of India. The
core of the dispute relates to which party has jurisdiction to trial the Italian marines. The case was
96
4 Sovereignty and Jurisdiction in the Law of the Sea