The Exclusive Economic Zone(EEZ) is an area beyond and adjacent to the territorial sea, and is subject to the specific legal regime under Article 55 of the United Nations Convention on the Law of the Sea(UNCLOS) which allows a sovereign right and jurisdiction for the coastal states.
The content derived from the judgment of the S.S. Lotus case(France v. Turkey) of 1927 on high seas collision was legislated as in Article 97 (1) "In the event of a collision or any other incident of navigation concerning a ship on the high seas, involving the penal or disciplinary responsibility of the master or of any other person in the service of the ship, no penal or disciplinary proceedings may be instituted against such person except before the judicial or administrative authorities either of the flag State or of the State of which such person is a national" of the UNCLOS. As a result, the criminal jurisdiction of coastal states over marine accidents occurred in the EEZ has not been allowed to some extents.
In this paper, it presents the necessity of domestic legal grounds and legislative measures to protect our people and a marine environment through exercising of criminal jurisdiction over the marine accidents occurred in the EEZ. For this purpose, this study reviews a basis of exercising of criminal jurisdiction and the significances and legal characters of each maritime zone under the UNCLOS and provisions related to the EEZ in domestic legal system. In addition, this study discusses a problems and improvement measures related to the application of criminal jurisdiction in the EEZ through reviewing the cases of ship accidents and suggests the improvement measures as below.
Flag state doctrine under Article 97 (1) of the UNCLOS is an extended concept of the territorial principle and has a positive function to ensure a free navigation of ships. On the contrary, a criminal jurisdiction involving the penal or disciplinary responsibility of the master or of any other person in the service of the ship was given to the flag state of the ship and the State of which such person is a national, and this jurisdictional mechanism brings about a adverse effects which could not protect coastal states and affected states. This study on the criminal jurisdiction in the EEZ is to protect the people and property of coastal states and affected states by reviewing relevant laws and regulations as the EEZ is a special zone.
Through this study, the scope, standards and supplements of Article 97 (1) of the UNCLOS has been firstly reviewed, and suggests a improvement measure to solve the Flag of Convenience problem related with exercising criminal jurisdiction. In addition, it finds ways to apply domestic laws to foreigners and makes efforts to exercise Passive Nationality Principle by reviewing foreign legislation, or to make legislation for protection of fishermen by way of applicating of national criminal jurisdiction.