Criminal Jurisdiction In Territorial Waters
🔹 I. What Are Territorial Waters?
Territorial waters (also called the territorial sea) extend up to 12 nautical miles from the baseline (usually the low-water mark along the coast) of a coastal state, according to the United Nations Convention on the Law of the Sea (UNCLOS).
Within this zone, the coastal state has full sovereignty, including criminal jurisdiction — although certain exceptions apply, especially concerning foreign ships.
🔹 II. Legal Framework for Criminal Jurisdiction
Under UNCLOS (Article 27), a coastal state may not exercise criminal jurisdiction over a foreign ship passing through territorial waters unless:
The consequences of the crime extend to the coastal state.
The crime disturbs the peace of the country or good order of the territorial sea.
The ship’s master or a diplomatic agent of the flag state requests assistance.
Such measures are necessary for the suppression of illicit traffic in narcotic drugs or psychotropic substances.
Note: The ship must be in innocent passage — meaning it's not engaging in activities that threaten the peace or security of the coastal state.
🔹 III. Types of Jurisdiction
Internal Waters: Full criminal jurisdiction (like land territory).
Territorial Waters: Presumptive jurisdiction, limited for foreign vessels in innocent passage.
Contiguous Zone (12-24 nm): Enforcement jurisdiction for customs, fiscal, immigration, and sanitary laws.
High Seas: No state has sovereignty; only flag state jurisdiction applies, except in cases like piracy or stateless vessels.
🔹 IV. Key Case Laws (Explained in Detail)
1. The “Lotus Case” (France v. Turkey), PCIJ (1927)
Facts: A French ship (S.S. Lotus) collided with a Turkish ship on the high seas, killing eight Turkish nationals. Upon arrival in Turkey, the French officer was arrested and prosecuted.
Legal Issue: Could Turkey assert jurisdiction for a crime that occurred on the high seas involving a foreign national and ship?
Held: Yes. The Permanent Court of International Justice ruled that states may exercise jurisdiction unless explicitly prohibited by international law. As no rule prevented Turkey from asserting jurisdiction in this case, it was lawful.
Significance: Though on the high seas, the case is foundational in asserting that jurisdiction is permitted unless explicitly excluded, influencing how jurisdiction is viewed in territorial waters.
2. R v. Keyn (The Franconia Case), UK (1876)
Facts: A German ship collided with a British vessel within 3 miles of the English coast, killing a British passenger. The German captain was prosecuted in England.
Legal Issue: Could British courts assert jurisdiction over a crime committed by a foreign ship within territorial waters?
Held: The court held that British courts had no jurisdiction unless Parliament had explicitly extended it. Customary international law did not give automatic jurisdiction in the absence of statutory authority.
Significance: This case led to the Territorial Waters Jurisdiction Act 1878, clarifying the UK’s jurisdiction in territorial waters, especially over foreign ships.
3. The I’m Alone Case (Canada v. United States), 1935
Facts: The “I’m Alone,” a Canadian ship suspected of smuggling alcohol into the U.S. during Prohibition, was pursued and sunk by the U.S. Coast Guard in the Gulf of Mexico, beyond U.S. territorial waters.
Legal Issue: Was the U.S. justified in exercising enforcement jurisdiction beyond its territorial waters?
Held: The international tribunal ruled that the U.S. violated international law by sinking the ship on the high seas. Though the U.S. had a right to pursue under the doctrine of hot pursuit, the use of force was excessive and unjustified.
Significance: This case reaffirmed that enforcement jurisdiction on the high seas is limited, and underscored the doctrine of hot pursuit—which must begin in territorial waters and be continuous.
4. Enrica Lexie Case (Italy v. India), PCA (2020)
Facts: Two Italian marines aboard the Enrica Lexie, an Italian oil tanker, shot and killed two Indian fishermen off the coast of Kerala, allegedly mistaking them for pirates. The incident occurred about 20.5 nautical miles from the Indian coast.
Legal Issue: Whether India had jurisdiction to prosecute Italian marines for an act committed beyond its territorial sea.
Held: The Permanent Court of Arbitration held that:
India had jurisdiction because the incident occurred in India’s Contiguous Zone where India may enforce laws regarding security.
However, Italy was entitled to exercise criminal jurisdiction over the marines as they were state officials acting in official capacity.
Significance: This case balanced functional immunity of state officials with coastal state rights in the contiguous zone. It’s one of the most important modern cases on maritime jurisdiction.
5. MV Saiga (No. 2) Case (Saint Vincent v. Guinea), ITLOS (1999)
Facts: The MV Saiga, a tanker registered in St. Vincent, was supplying fuel to fishing vessels near Guinea’s EEZ. Guinea intercepted and detained the ship for violating customs laws.
Legal Issue: Could Guinea exercise criminal/enforcement jurisdiction in its Exclusive Economic Zone (EEZ)?
Held: The International Tribunal for the Law of the Sea (ITLOS) held that:
Guinea’s actions were unlawful.
The EEZ is not subject to full sovereignty.
Enforcement in the EEZ is limited to resource management, environmental laws, and fiscal/customs controls, and only as permitted by UNCLOS.
Significance: The case made clear distinctions between sovereignty in territorial waters vs. EEZ, and reinforced the limited jurisdiction in EEZs.
6. The Wildenhus Case (1887), USA
Facts: A murder occurred on a Belgian ship docked in Jersey City, New Jersey. U.S. authorities arrested the accused despite Belgian protests.
Legal Issue: Whether the U.S. had jurisdiction over a foreign ship docked in its port when the crime occurred onboard.
Held: The U.S. Supreme Court upheld the arrest, stating that crimes that disturb public order onshore (even if committed aboard foreign vessels) justify local jurisdiction.
Significance: Reinforced the idea that “disturbance of peace” can trigger jurisdiction of the coastal state, even if the crime occurred within a foreign ship in internal waters.
🔹 V. Summary Table
| Case | Jurisdiction Asserted By | Waters Involved | Outcome | Key Principle |
|---|---|---|---|---|
| Lotus Case | Turkey | High Seas | Allowed | Jurisdiction unless prohibited |
| R v. Keyn | UK | Territorial Waters | Denied | Statute required for jurisdiction |
| I’m Alone | USA | High Seas | Unlawful | Limits to hot pursuit |
| Enrica Lexie | India & Italy | Contiguous Zone | Split | Official immunity vs. coastal rights |
| MV Saiga | Guinea | EEZ | Unlawful | EEZ limits on criminal jurisdiction |
| Wildenhus | USA | Internal Waters | Allowed | Peace disturbance triggers jurisdiction |
🔹 VI. Conclusion
Criminal jurisdiction in territorial waters is a careful balance between:
Sovereignty of the coastal state
Rights of the flag state
International law limitations under UNCLOS
Nature and effect of the crime committed
While a coastal state generally has jurisdiction within 12 nautical miles, exceptions exist, especially involving foreign ships in innocent passage. Each case demonstrates different facets of how courts have interpreted and applied maritime jurisdiction.
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