simultaneously awarded increased jurisdictional rights to coastal states, in comparison to the pre-UNCLOS era, and established ceilings to the exercise of those rights,
as part of what has been called “graduated approach to coastal State intervention”.
77
If, on the one hand, the notion of “progressive jurisdiction” seems quite intuitive,
the same does not hold true to the phrase “functional jurisdiction”, on the other. In
fact, UNCLOS has adopted a multiple zonal approach to the world oceans and
divided them into several maritime zones, each of which regulated by specific sets of
rules and, most importantly, to a progressive (or regressive) territorial jurisdiction
based on the geographical location of each zone. As an example, the territorial sea,
being the sea belt closest to the shore, is under the sovereignty of the coastal state.
There, coastal states are allowed to adopt laws and regulations on varied matters
(prescriptive jurisdiction, such as regulations on the safety of navigation or the
protection of navigational facilities)
78 and to take appropriate measures to enforce
domestic and international legislation.
Adjacent to the 12 nm territorial sea lies the contiguous zone, which has a breadth
of 12 nm and may not extend beyond 24 nm from the baselines.
79 Coastal state
jurisdiction in the contiguous zone is limited to the exercise of control strictly
necessary to prevent and punish infringement of its customs, fiscal, immigration or
sanitary laws. The progressive character of the jurisdictional rights exercisable by
the coastal state in the two aforementioned marine spaces remains clear, as in the
latter (contiguous zone), enforcement jurisdiction exists solely regarding specific
purposes—customs, taxation, immigration, and sanitation. The development of
contiguous zone albeit a complicated one,
80 can be considered already a concession
of maritime states to the long-lasting claims of coastal states for more control over
sensitive issues in distances not so far from the shore, but also not as close as within
the territorial sea.
A similar progressive reduction of jurisdictional rights occurs between the contiguous zone and the EEZ, where the coastal state exercises prescriptive and
enforcement jurisdiction for limited issues provided by UNCLOS. The normative
logic supporting the LOS is, thus, one in which coastal States’ rights progressively
diminish in each successive zone seaward.
81 Concerning the qualifier of “functionality” to jurisdiction, Maria Gavouneli postulates that “functional” means that the
77 Gavouneli (2007), p. 19, on the treaty obligation of coastal states to have due regard to the rights
and duties of other states in the maritime zones under coastal states’ jurisdiction while exercising its
rights under the Convention.
78 Art. 21 (1) (a) to (h) UNCLOS, on the laws and regulations of the coastal State relating to innocent
passage.
79 Art. 33 (1) and (2) UNCLOS, on the contiguous zone.
80 There is some controversy as to the origin of the concept of a contiguous zone, whether it dates
back to the Hovering Acts passed by Great Britain in the eighteenth century or not. See Tanaka
(2012), p. 121. However, codification of the contiguous zone occurred only in 1958, with the
adoption of the Geneva Convention on the Territorial Sea and the Contiguous Zone, UNTS, vol
516, 205.
81 Kreca (2002), p. 1208.
104
4 Sovereignty and Jurisdiction in the Law of the Sea
as part of what has been called “graduated approach to coastal State intervention”.
77
If, on the one hand, the notion of “progressive jurisdiction” seems quite intuitive,
the same does not hold true to the phrase “functional jurisdiction”, on the other. In
fact, UNCLOS has adopted a multiple zonal approach to the world oceans and
divided them into several maritime zones, each of which regulated by specific sets of
rules and, most importantly, to a progressive (or regressive) territorial jurisdiction
based on the geographical location of each zone. As an example, the territorial sea,
being the sea belt closest to the shore, is under the sovereignty of the coastal state.
There, coastal states are allowed to adopt laws and regulations on varied matters
(prescriptive jurisdiction, such as regulations on the safety of navigation or the
protection of navigational facilities)
78 and to take appropriate measures to enforce
domestic and international legislation.
Adjacent to the 12 nm territorial sea lies the contiguous zone, which has a breadth
of 12 nm and may not extend beyond 24 nm from the baselines.
79 Coastal state
jurisdiction in the contiguous zone is limited to the exercise of control strictly
necessary to prevent and punish infringement of its customs, fiscal, immigration or
sanitary laws. The progressive character of the jurisdictional rights exercisable by
the coastal state in the two aforementioned marine spaces remains clear, as in the
latter (contiguous zone), enforcement jurisdiction exists solely regarding specific
purposes—customs, taxation, immigration, and sanitation. The development of
contiguous zone albeit a complicated one,
80 can be considered already a concession
of maritime states to the long-lasting claims of coastal states for more control over
sensitive issues in distances not so far from the shore, but also not as close as within
the territorial sea.
A similar progressive reduction of jurisdictional rights occurs between the contiguous zone and the EEZ, where the coastal state exercises prescriptive and
enforcement jurisdiction for limited issues provided by UNCLOS. The normative
logic supporting the LOS is, thus, one in which coastal States’ rights progressively
diminish in each successive zone seaward.
81 Concerning the qualifier of “functionality” to jurisdiction, Maria Gavouneli postulates that “functional” means that the
77 Gavouneli (2007), p. 19, on the treaty obligation of coastal states to have due regard to the rights
and duties of other states in the maritime zones under coastal states’ jurisdiction while exercising its
rights under the Convention.
78 Art. 21 (1) (a) to (h) UNCLOS, on the laws and regulations of the coastal State relating to innocent
passage.
79 Art. 33 (1) and (2) UNCLOS, on the contiguous zone.
80 There is some controversy as to the origin of the concept of a contiguous zone, whether it dates
back to the Hovering Acts passed by Great Britain in the eighteenth century or not. See Tanaka
(2012), p. 121. However, codification of the contiguous zone occurred only in 1958, with the
adoption of the Geneva Convention on the Territorial Sea and the Contiguous Zone, UNTS, vol
516, 205.
81 Kreca (2002), p. 1208.
104
4 Sovereignty and Jurisdiction in the Law of the Sea