Il "controllo preventivo" nella zona contigua

According to Article 33, para. 1, a), of the United Nations Convention on the Law of the Sea, in a zone contiguous to its territorial sea the coastal State may exercise the control necessary to prevent infringement of its customs, fiscal, immigration or sanitary laws within its territory or territorial sea. The nature of such preventive power has always been controversial, the most debated issue being whether it implies legislative as opposed to mere enforcement jurisdiction. This study aims at clarifying the nature of preventive control in the contiguous zone, as well as the requirements and limits of its exercise. It argues that « control » in Article 33 only refers to material or executive measures, which can be coercive (right of visit) but only preventive in character. Such measures must have a domestic legal basis and can be exercised only if a contiguous zone has been established. States whose contiguous zones overlap can exercise them concurrently. Coercive measures aimed at punishment (such as the seizure of the ship and arrest of the crew) are precluded, unless the coastal State has prescriptive jurisdiction over the conduct on the basis of a customary rule separate from the limited power of control codified in Article 33. It is argued that, as regards conduct in the contiguous zone having no other connection with the coastal State than its territorial destination, such rule exists at present only in the field of customs, on the basis of a longstanding practice renewed under the Montego Bay regime especially in the fight against drug trafficking.