Jurisdictional Tensions: Divergent Judicial Approaches to Conflicts between UNCLOS and National Public Law Policies

• Pages: 1-18

LEX PORTUS VOL 11 ISS 2 2025

ISSN 2524-101X

eISSN 2617-541X

DOI 10.62821/lp11201

Jurisdictional Tensions: Divergent Judicial

Approaches to Conicts between UNCLOS

and National Public Law Policies

Viacheslav Tuliakov*, Oksana Stepanenko**

*Doctor of Law, Professor, ESIC University (S/N, Cam. Valdenigriales, Pozuelo de Alarcón, Spain) https://orcid.org/0000-0002-2716-7244

**Doctor of Law, Associate Professor, National University Odesa Law Academy (23, Fontanska Doroha St., Odesa, U kraine)

https://orcid.org/0000-0003-4677-9868

ABSTRACT

This article examines the intricate jurisdic tional tensions arising from the interplay between

the United Nations Convention on the Law of the Sea (UNCLOS) and national public law policies.

Focusing on the interpretative approaches of the European Court of Human Rights (ECHR), the

European Court of Justice (ECJ), and the International Court of Justice (ICJ), the study identies

a fundamental conict between coastal states’ exercise of public enforcement powers and

the navigational freedoms and jurisdictional limitations established under UNCLOS. Through

comprehensive analysis of pertinent case law, the research elucidates distinct jurisprudential

methodologies reecting varying institutional priorities and normative frameworks. The ECHR

consistently applies a human rights-centric approach, eectively subordinating maritime

jurisdictional claims to human rights standards, while the ICJ emphasizes state sovereignty and

strict treaty interpretation in resolving jurisdictional disputes. These divergent approaches pose

signicant challenges for coastal states striving to align their criminal enforcement activities

with potentially conicting international legal obligations. The study further explores emerging

harmonization eorts, including the integration of explicit human rights safeguards into

maritime enforcement protocols, the development of specialized judicial review mechanisms,

and the adoption of interpretive guidance addressing both UNCLOS compliance and human

rights obligations. Additionally, the research analyzes how the United Nations Convention

against Transnational Organized Crime framework introduces further complexity to maritime

enforcement, particularly concerning migrant smuggling and human tracking operations. The

article concludes that reconciling these tensions necessitates sophisticated legal frameworks

and institutional innovations capable of accommodating both the jurisdictional boundaries

established by UNCLOS and the human rights obligations enforced by various international

tribunals while addressing transnational crime suppression obligations.

CITATION

Tuliakov, V., & Stepanenko, O.

(2025). Jurisdictional Tensions:

Divergent Judicial Approaches

to Conicts between UNCLOS

and National Public Law

Policies. Lex Portus, 11(2), 7–24.

https://doi.org/10.62821/lp11201

KEYWORDS

maritime law, UNCLOS, public

law jurisdiction, human rights,

European Cour t of Human Rights,

International Court of Justice,

jurisdictional tensions, migration,

transnational crime, maritime

enforcement

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Introduction

The intersection of international maritime law and national public law jurisdictions

represents a complex and contentious area within contemporary international legal discourse.

As coastal states increasingly asser t public law jurisdiction in maritime domains, particularly

in response to transnational threats such as human tracking, drug smuggling, and irregular

migration, fundamental tensions have emerged between state sovereignty and international

legal regimes. These tensions are especially pronounced in the relationship between the

United Nations Convention on the Law of the Sea (UNCLOS) and the enforcement powers

exercised by coastal states.

UNCLOS, often referred to as the “constitution for the oceans,” establishes a comprehensive

legal framework delineating maritime zones and allocating jurisdictional competencies among

states. The Convention carefully balances coastal states’ interests in maintaining territorial

integrity and security with the international community’s interest in preserving navigational

8LEX PORTUS VOL 11 ISS 2 2025

freedoms. Article 2 grants coastal states sovereignty over their territorial sea, while

Article27 specically addresses public law jurisdiction on foreign ships, limiting it to specic

circumstances to protect navigational rights. However, these provisions frequently conict

with national constitutional laws asserting broader jurisdiction over oenses committed

within territorial waters and beyond. This jurisdictional friction has been addressed by various

international tribunals, including the European Court of Human Rights (ECHR), the European

Court of Justice (ECJ), and the International Court of Justice (ICJ), each applying distinct

interpretative approaches reective of their institutional mandates and normative priorities.

The resulting jurisprudence reveals not merely technical legal disagreements but fundamental

dierences in conceptualizing the relationship between state sovereignty, individual rights,

and international obligations.

The signicance of these jurisdictional tensions extends beyond academic interest. For

coastal states endeavoring to combat maritime deviance while fullling international legal

obligations, navigating the complex and sometimes contradictory requirements of UNCLOS,

human rights law, and transnational crime conventions presents practical challenges directly

impacting enforcement strategies and operational protocols. Similarly, for individuals

subjected to maritime enforcement actions, these jurisdictional questions can determine the

applicability of fundamental rights protections and the availability of legal remedies.

This article aims to analyze the divergent approaches adopted by the ECHR, ECJ, and ICJ in

addressing contradictions between UNCLOS and national public law policies, with particular

focus on how each tribunal balances competing legal principles. By examining key judgments

and identifying patterns in jurisprudential reasoning, the research seeks to contribute a more

coherent understanding of this complex legal landscape and identify potential pathways

toward reconciling these competing imperatives.

Background

The relationship between international law and domestic constitutional orders remains

one of the most challenging aspects of contemporary jurisprudence. Domestic and regional

courts increasingly serve as gatekeepers, determining the extent to which international

legal obligations can penetrate national legal systems without compromising fundamental

constitutional principles. In Kadi and Al Barakaat International Foundation v. Council of the

European Union and Commission of the European Communities (2008), the European Court

of Justice (ECJ) delivered a groundbreaking judgment that fundamentally altered the

relationship between EU law and international obligations under the UN Charter (Joined

Cases C-402/05 P and C-415/05 P, 2008). The case arose when Yassin Abdullah Kadi and the

Al Barakaat International Foundation challenged EU regulations that implemented UN

Security Council sanctions freezing their assets without prior notice or judicial review. The

ECJ’s reasoning centered on the principle of constitutional identity and the autonomy of

the EU legal order. The Court held that even UN Security Council resolutions, despite their

binding nature under international law, must comply with fundamental rights as protected

by EU law when implemented within the European Union’s legal framework. The Court

declared: “The obligations imposed by an international agreement cannot have the eect

of prejudicing the constitutional principles of the EC Treaty, which include the principle

that all Community acts must respect fundamental rights” (para. 285). This was not an act

of deance against international law, but rather a reassertion of the EU’s constitutional

identity and its commitment to fundamental rights protection. The Court emphasized that

while it respects the UN Charter’s objectives, the EU cannot abdicate its responsibility to

ensure that fundamental rights are protected within its own legal order. The Kadi decision