On 10 November 2003, customs officers boarded a pleasure vessel called the Lady Sunshine which was in the French territorial sea. At their request, Marco X, the engineering officer, opened the safe in the aft cabin, in which customs officials noted the presence of several handgun magazines, for which no proof of regular importation was produced. A complete search of the boat revealed 2,200 cartridges for first category weapons. Marco X was indicted on the count of offences against the legislation on weapons.

Marco X appealed, arguing that it follows from the provisions of art 21 of UNCLOS that, in the event of innocent passage within the meaning of arts 17, 18 and 19 of the same Convention of a vessel in the territorial sea, the coastal State has the power to exercise control with a view to preventing infringements of its customs, fiscal and sanitary laws and regulations, but only as long as such laws and regulations have been made by it under this provision, that is to say, in so far as they relate to the innocent passage in its territorial sea. The Court of Appeal admitted that the passage of the Lady Sunshine was an innocent passage, that is to say a continuous and rapid passage through the territorial sea without entry into internal waters and not relating to any activities likely to endanger the peace, good order or security of the coastal State. None of the acts exhaustively listed in art 19 were levelled against him. The Court confined itself to targeting in an abstract and general manner infringements of fiscal and sanitary customs laws and regulations, without specifying whether these laws and regulations were relating to innocent passage, and thus did not legally justify its decision with regard to UNCLOS.

Article 27.5 of UNCLOS provides that the coastal State may not take any steps on board a foreign ship passing through the territorial sea to arrest any person or to conduct any investigation in connection with any crime committed before the ship entered the territorial sea, if the ship, proceeding from a foreign port, is only passing through the territorial sea without entering internal waters. It appears that these circumstances were met. The judgment under appeal, which nevertheless retained the competence of the French courts, violated the aforementioned provision.

Article 27.3 of UNCLOS provides that the coastal State shall, if the master so requests, notify a diplomatic agent or consular officer of the flag State before taking any steps, and shall facilitate contact between such agent or officer and the ship's crew. This is a substantive prior formality. The Investigating Chamber, having implicitly but necessarily recognised that this substantive formality had not been completed by the Customs officers prior to their operations, disregarded the combined provisions of art 27.3 of the Convention and arts 171 and 172 of the Code of Criminal Procedure.

Held: Appeal dismissed.

The judgment states that the right of innocent passage of ships through the territorial sea, as defined in art 18 of UNCLOS, does not preclude the exercise by the coastal State of the control necessary to prevent infringements of its customs, fiscal, health or immigration laws and regulations. The Judges add that the control of the Lady Sunshine was first carried out on an application of art 62 of the Customs Code, and that the discovery of the handguns then authorised Customs officials to search the vessel. The Court notes that it does not appear that the master of the Lady Sunshine made a request that the measures taken following the control be notified to a diplomatic agent or to a consular officer of the flag State of the vessel.

Article 62 of the Customs Code makes it possible to prevent infringements of customs and fiscal laws and regulations within the meaning of art 21.1.h of UNCLOS. The control carried out on board the ship with a view to investigating customs fraud does not constitute an arrest or an act of investigation following a criminal offence committed before the vessel entered the territorial sea within the meaning of art 27.5 of the Convention. Moreover, no provision requires that the master of the vessel be informed of the option offered to the master by art 27.3 of the Convention.

Articles 1, 19 and 21 of UNCLOS do not provide any derogation from the rules that govern the territorial jurisdiction of French criminal courts.