This post is contributed by Deeksha Prakash, Symbiosis Law School, Hyderabad.

  • The concept of exclusive economic zone appears to have gradually taken shape from the state practice, especially of the Latin American countries, of claiming increased national jurisdiction. It was these countries which for the first time developed the concept of resource-oriented zone beyond the territorial sea.
  • Article 55 defines the specific legal regime of the exclusive economic zone. 
  • It states that the exclusive economic zone is “an area beyond and adjacent to the territorial sea, subject to the specific legal regime established in this part, under which the rights and jurisdiction of the coastal state and the rights and freedoms of other states are governed by the relevant provisions of this convention.”
  • Article 57 provides that this zone shall not extend beyond 200 nautical miles from the baselines from which breadth of the territorial sea is measured.
  • The concept of exclusive economic zone appears to have gradually taken shape from the state practice, especially of the Latin American countries, of claiming increased national jurisdiction.  It was these countries which for the first time developed the concept of resource-oriented zone beyond the territorial sea.

Santiago Declaration(1952)

  • However, more famous than these unilateral initiatives was the trilateral decision in 1952 of Chile, Equador and Peru, who, having no continental shelf along their coasts beyond their territorial sea, instantly decided that such geographical misfortune was not going to prevent them from extending national sovereignty over the resources close to their shores, which in their case meant the total fishing resources in the ocean currents running along their coasts. 
  • Referring to the previous Declarations on the Continental Shelf, these countries proclaimed sovereignty over adjacent waters and underlying sea-bed up to a distance of 200 nautical miles from the baselines of their coast. 

    Contributions of Patrimonial Sea Concept:

The concept of the patrimonial sea made several important contributions which are stated below:

  • It made the 200 mile limit which was originally propounded by the Santiago Declaration (1952) remain untouched though only in the context of the coastal State’s economic jurisdiction area.
  • It attracted the Asian and African countries towards a single and common platform and eventually proved most attractive to the maritime powers.
  • It permitted the states to claim “sovereign” rights over the renewable and non-renewable resources of the patrimonial sea and granted them the right to regulate the conduct of scientific research and the right to prevent pollution of the marine environment within the said area.
  • It gave the area known as the patrimonial sea a status which is quite different from the territorial sea or the high seas.
  • In conformity with North Sea Cases Judgement, it provided enough scope for the continuation of the continental shelf regime in respect of the continental shelf lying beyond the patrimonial sea up to the outer limits of the continental rise.
  • It envisaged regional cooperation in all aspects of oceanic space, including the exploitation of the resources of the sea.
  • The exclusive economic zone (EEZ) being one of the cornerstones of a new law of the sea does not only evidence “the unprecedented peaceful revolution in international law” but also constitutes “the most significant development in the law of the sea since Hugo Grotius wrote his celebrated work titled Mare Liberum.
  • One of the characteristic features of the exclusive economic zone consists in the scope of the coastal state’s rights with regard to natural resources, subsuming all kinds of rights related to economic activities that are connected with the exploitation of both living and non-living resources of the waters as well as of the seabed and its subsoil.
  • This approach constitutes a novelty in the international Law of the Sea, that has always clearly distinguished the legal status of the seabed and its subsoil from the legal regime of waters superjacent to this seabed.  At the same time, the said rights are the most important category of the rights exercised by a coastal state in the exclusive economic zone, and they emphasize the underlying economic, and not political or strategic purpose this zone was established for.  

Regime of Exploitation of Fisheries:

  • The 1982 Convention on the Law of the Sea besides confirming the powers of the coastal state with regard to fishing activities within its territorial sea provides that the coastal state may exercise “sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living of the waters superjacent to the sea-bed and of the sea-bed and its subsoil within its exclusive economic zone.”
  • These sovereign rights however are coupled with three particular duties: The duty of each coastal state to determine the total allowable catch (TAC) concerning the waters under the jurisdiction of the coastal state;’
  • The duty of the state to establish its own fishing capacity;
  • The duty of the coastal state to conclude agreements with the other states of the region for making available to them – in particular to geographically disadvantaged states and the landlocked states whatever surplus remaining after subtracting its fishing capacity from the TAC.

Principle of Optimum Utilization

  • The principle of optimum utilization of the living resources is a device intended to facilitate exploitation of the resources by other states where the coastal state does not have the capacity to harvest them fully.  This necessarily involves four elements.
  • The determination of the harvesting capacity of the coastal state;
  • An obligation on the part of the coastal state to permit other states to take the surplus of allowable catch;
  • The right to lay down the terms and conditions under which other states will be allowed to take the catch.
  • The power to enforce the regulations laid down by the coastal state.

 Rights of the Coastal State:
Article 56 identifies the types of rights of the coastal states: a) sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the sea-bed, subsoil, and the superjacent waters, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water currents and winds and

b) other rights and duties provided for in this convention.  The same provision vests jurisdiction in the coastal state with regard to

i) the establishment and use of artificial islands, installations, and structures;

ii) marine scientific research and

iii) the protection and preservation of the marine environment.  It further states that in exercising its rights and performing its duties in the exclusive economic zone, the coastal state should have due regard to the rights and duties of other states and should act in a manner compatible with the provisions of the Convention.

Rights of Other  States:

  • In the exclusives economic zone, all states, whether coastal or land-locked enjoy subject to the relevant provisions of this convention, the freedoms referred to in article 87 of navigation and overflight and of the laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to these freedoms, such as those associated with the operation of ships, aircraft and submarine cables and pipelines, and compatible with the other provisions of this convention.
  • Articles 88 to 115 and other pertinent rules of international law apply to the exclusive economic zone in so far as they are not incompatible with this part.
  • In exercising their rights and performing their duties under this Convention in the exclusive economic zone, States shall have due regard to the rights and duties of the coastal state and shall comply with the laws and regulations adopted by the coastal state in accordance with the provisions of this convention and other rules of international law in so far as they are not incompatible with this part.

   Residual Rights– While attributing specific rights and jurisdiction to the coastal state and other states in the exclusive economic zone, the Draft Convention does realise that it is impossible to enumerate all rights which states could claim in that zone.  Article 59 indicates the basis for the resolution of conflicts which might arise in this regard. 

It provides: In a case where this convention does not attribute rights or jurisdiction to the coastal state or to other states within the exclusive economic zone, and a conflict arises between the interest of the coastal state and any other state or states, the conflict should be resolved on the basis of equity and in the light of all relevant circumstances, taking into account the respective importance of the interests involved to the parties as well as to the international community as a whole.

Land-locked and Geographically Disadvantaged States

  • Articles 69 and 70 deal with the right of access of the land-locked states and states with special geographical characteristics, respectively, to the living resources of the exclusive economic zones of other states in the sub-region or region. The right given to these categories of states being the same, the issues involved are the same, and these we shall consider after indicating the definition of states with special geographical characteristics.
  • Paragraph 1 of Article 69 of the 1982 Convention establishes that land-locked states shall have the right to participate, on an equitable basis, in the exploitation of an appropriate part of the surplus of the living resources of the exclusive economic zone of coastal states of the same “region or sub-region”, taking into account the relevant economic and geographical circumstances of all states concerned and in conformity with the provisions of this article and of articles 61 and 62.
  • The “terms and modalities” of participation by the concerned states will have to be established through bilateral, sub-regional or regional agreements.  While establishing the regime of participation, the states shall take into account, inter alia:
  • the need to avoid effects detrimental to the fishery interests of the coastal state;
  • the quantum of participation by the land-locked state under similar agreements in the fisheries of the economic zones of other coastal states;
  • the quantum of participation by other land-locked states and the geographically disadvantaged states in the fisheries of the coastal states and the need to avoid overburdening of any single coastal State or a part of it; and
  • the nutritional needs of the populations of the respective states   Article 124(1)(a) of the 1982 Convention defy a “land-locked state” as meaning “a state which has no sea coast”. 
  • Thus the test is not whether a state has “access” to the sea but whether it abuts on the sea.  The distinction between the two is very real.  For instance, Paraguay has access to the sea through a river but has no sea coast of its own.  Under the above definition, Paraguay is a land-locked state.

Paragraph 2 of the article 70 defines the geographically disadvantaged states as follows: For the purposes of the convention, states with special geographical characteristics means coastal states, including states bordering enclosed or semi-enclosed seas, whose geographical situation makes them dependent upon the exploitation of the living resources of the exclusive economic zones of other states in the sub-region or region for adequate supplies of fish for the nutritional purposes of their populations or parts thereof, and coastal states which can claim no exclusive economic zones of their own.

Species Approach

  • Article 66 which also deals with a special type of fish – the anadromous species – postulates legal norms which are an exception to the general rule that every coastal state shall have exclusive right to take conservation measures with regard to fishing resources within its exclusive economic zone. 
  • The essence of this article is that the coastal state in whose rivers anadromous stocks originate shall have the primary interest in and responsibility for such stocks. 
  • As corollaries to this principle, it is laid down that the state of origin shall ensure the conservation of migratory species, shall cooperate in minimizing economic dislocation in other states fishing those stocks, before establishing total allowable catches.
  • Article 67 which also deals with another special type of fish, known as the catadromous species, enunciates a principle that is an exception to the general rule, laid down in Articles 61 and 62. 
  • The responsibility for the management of the species is entrusted to the coastal state in whose waters this fish spends the greater part of its life.  The same article also stipulates that the harvesting of species shall be conducted only in waters of the state which has the responsibility for the management of species.

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