2.1.1 Preferential Rights to Sedentary Species

Not long after the Dutchman Huge De Grotius published his treatise, Mare Liberum, in 1609, the doctrine of ‘freedom of the seas’ came to be generally accepted as the principle applicable to the high seas for more than three centuries.Footnote ¹ Coastal State sovereignty, in contrast, was limited within a three-mile territorial water belt as commonly adopted since the end of the eighteenth century, with some States claiming different breadths.Footnote ² Consequently, coastal States’ rights did not in general extend beyond the three-mile limit, though there was a consensus favouring the coastal State to reserve the exclusive right to exploit resources of the seabed located beyond and adjacent to its territorial sea.Footnote ³

Even before the doctrine of the three-mile limit was widely established, Britain had extended its right over the resources located on the surface of the seabed. By the Cornwall Submarine Mines Act, the Parliament had, in 1858, committed itself to the position that the seabed below the low-water mark was vested in the Crown ‘as part of the soil and territorial possessions of the Crown’.Footnote ⁴ Without affecting the navigational and fishing rights in the superjacent water and ‘restricted by the silent abandonment of more extended claims’, the property right over sedentary fisheries was not considered inconsistent with the universal right of freedom of the seas, and was declared by Hurst as ‘entitled to be recognized by other States’.Footnote ⁵ Other examples include the claims of pearl and chank fisheries in the Gulf of Mannar and Palk Bay by littoral successive masters, the Irish claim with regard to oyster beds and the claim of the Bey of Tunis respecting sponge banks.Footnote ⁶

The essence of such claims rests on the unique nature of the sedentary fisheries. Oyster, pearl-oyster, chank and sponge fisheries or any other form of sedentary fisheries connected with the bottom of the seabed ‘have always been considered as on a different footing from floating fish’.Footnote ⁷ They have also been compared to ‘crops on land’; that these resources are considered to be the fruit of the seabed, to be harvested by the sovereign of the adjacent land rather than caught like swimming fish.Footnote ⁸ However, the most convincing theory was the principle enunciated by Lord Hall, who claimed the right over seabed resources depended on long and effective possession in order to be valid.Footnote ⁹ It follows that ownership over the seabed can be established and maintained by the coastal State as long as effective occupation continues; the produce obtained from sedentary fisheries that are situated in the soil of the seabed can be owned by the coastal State as a product of the soil.Footnote ¹⁰

The fact that these claims related to certain living resources rather than to the seabed did not retrench their significance. It was acknowledged that sedentary fisheries were an exception to the rule that navigation and fishing on the high seas were free to all alike and ownership can be claimed by the adjacent coastal State where the species are located.Footnote ¹¹ Recognising coastal State preferential rights to sedentary fisheries was the first step in the long chain of development to endorse the exclusive rights over marine resources beyond the limit of territorial waters.

2.1.2 The Bering Sea Fur-Seals Arbitrations

Coastal fisheries are the oldest and most important use of the ocean. Jurisdictional claims over floating fisheries beyond territorial waters, however, were not accepted by international society until the twentieth century.

After purchasing the territory of Alaska from Russia in 1867, the United States unilaterally adopted strict conservation measures toward the fur-seals found there, as they were largely diminished in number and seemed threatened with extinction. These measures included some penal statutes prohibiting all persons from killing seals in the Bering Sea, and all vessels whose crews were found violating such statutes were liable to seizure and forfeiture and the crews liable to fine and imprisonment. The application of these statutes since 1886 involved the seizure of several vessels owned by citizens of Great Britain, which resulted in protests from the British who asserted that such seizures were wholly unjustified under international law because they took place outside the three-mile limit of US territorial waters. The two countries eventually agreed to submit the matter to arbitration by a treaty signed on 29 February 1892.Footnote ¹² The core question that arose before the arbitral tribunal was whether the United States had the right to enforce its domestic laws beyond the three-mile territorial waters.Footnote ¹³

The United States defended its actions on three main grounds: first, it was entitled to claim jurisdiction over the Bering Sea either as successor to Russia in sovereignty over Alaska or in its own right; second, the United States had ‘a right of protection and property in the fur-seals frequenting the Pribilov Islands when found outside the ordinary three-mile limit’; and third, it had the right to protect fur-seals as trustee on behalf of the common interest of all nations.Footnote ¹⁴ The arbitral tribunal first found that Russia never in fact asserted or exercised any exclusive jurisdiction or right beyond the ordinary limit of its territorial waters in the Bering Sea, and neither did Great Britain recognise or concede any such claims. The arbitral tribunal then found that the United States ‘had no right of protection or property in fur-seals frequenting US islands in the Bering Sea when such seals were found outside the limits of the territorial sea’.Footnote ¹⁵ Nevertheless, the arbitral tribunal recognised the necessity to protect and preserve the fur-seals outside the jurisdictional limits in the Bering Sea, and responded to the request of the two parties to lay down concurrent regulations for the United States and Great Britain to apply.Footnote ¹⁶ Those regulations were regarding prohibitions of fishing areas and periods, vessels types, fishing methods and tools, and application scope.Footnote ¹⁷ This award indicated that although the coastal State had no right to claim protective jurisdiction over fisheries beyond its territorial waters, this was not a legal vacuum; rather protection and preservation measures on the high seas could be applied through international agreements with the flag State.

At the end of the eighteenth century, the unilateral property claim over free swimming fisheries beyond the three-mile limit was novel, and there was no legal foundation to support such a claim against the better-established principle of freedom of the seas. As Arbitrator Morgan stated, these questions were ‘to be decided upon the existing state of the law, and finding no existing precedent in the international law, they did not feel warranted in creating one’.Footnote ¹⁸ It was not a surprise when Russia seized a number of British and American vessels for taking fur-seals in the Bering Sea in 1892 that these seizures had been declared illegal by a new arbitral tribunal, ‘since the jurisdiction of the State could not be extended beyond the territorial sea, unless by express convention’.Footnote ¹⁹

It was apparent that States were tempted to make inroads upon the general principle of the freedom of the seas. However, these desires were confronted with the difficulties of breaking the absolute dichotomy of ‘territorial sea’ and ‘high seas’. The increasing awareness of protecting and conserving the living resources in waters adjacent but outside territorial waters created an urge for States to deliberately break the traditional rules to bring about these changes.Footnote ²⁰

2.2.1 State Practice Pre-1930

Driven by the intention to protect the interests of neutrality, defence, surveillance and conservation, coastal States were concerned to extend their jurisdiction over foreign vessels to a broader belt of sea, in some cases upon the high seas adjacent to their territorial waters.Footnote ²¹ However, as the doctrine of the ‘freedom of the seas’ had been so deeply rooted in international law, there was a natural reluctance to admit that the coastal State had the right to do so.Footnote ²² In the absence of a rule of international law fixing a specific extent of coastal State competence over marine areas, States took various measures to meet their own needs.Footnote ²³

Several European States made no claim to a single belt of territorial waters, but instead claimed jurisdictions over different limits of adjacent waters for different purposes.Footnote ²⁴ France, for example, claimed a cannon-shot zone for general and fishing purposes, and jurisdiction up to six miles for neutrality and up to twelve kilometres for customs supervision.Footnote ²⁵ The hypothesis behind these claims was the doctrinal position adopted by La Pradelle that a State’s maritime jurisdiction was merely a ‘bundle of servitudes’ based on a ‘solid juridical principle derived from the inherent quality of being a coastal State’, but which did not amount to sovereignty.Footnote ²⁶ Similar positions can be observed from the practice of Belgium, Greece, Italy, Portugal, Spain and Türkiye, all of which made multiple claims to jurisdictional zones of different widths for different purposes.Footnote ²⁷

For States that explicitly accepted the three-mile limit as the breadth of territorial waters, there were two opposite positions: some States denied the existence of jurisdiction beyond the normal limit of territorial waters, while others insisted on exercising such jurisdiction.

In 1736, the British Parliament adopted the Hovering Acts, ‘by which vessels with certain cargoes on board, destined for British ports, might be seized within four leagues of the British coast’.Footnote ²⁸ But the case of the Petit Jules, a French smuggling vessel seized by the British Revenue about twenty-three miles off the Isle of Wight in 1850, was the last occasion on which Britain exercised jurisdiction beyond the three-mile limit over foreign vessels.Footnote ²⁹ However, there were inconsistent practices respecting the limits of bays, where coastal State jurisdiction extended to a ten-mile-wide diameter measured between headlands.Footnote ³⁰ In 1892, the Fishery Board of Scotland made a by-law closing the Moray Firth and prohibited the use of beam-trawl and otter-trawl by any person for herring fisheries therein. Conviction was obtained and upheld against Danish fisherman Mortensen in 1906, whose violation was found ‘at a point within the Moray Firth, more than three miles from the shore, but to the west of a line drawn from Duncansby Head in Caithness to Rattray Point in Aberdeenshire, that being thereafter found within British Territory’.Footnote ³¹ In general, since mid-nineteenth century, British ‘national policy had been to uphold the three-mile limit, and to protect against and resist the pretension of any foreign country to enforce its own jurisdiction on the sea beyond the three-mile limit’.Footnote ³² The above-discussed Bering Sea Arbitration was one of those examples.

Nevertheless, the steadfast British position was not without exceptions. Traditionally, the strict three-mile jurisdictional competence could be extended in very limited circumstances. It was admitted that the doctrine of ‘constructive presence’ allowed a wider application of the three-mile rule; for self-defence reasons, the British government reserved its right to extend its jurisdiction; and lastly, the doctrine of ‘hot pursuit’ was also recognised within a confined scope.Footnote ³³ Furthermore, as the time drew near to an imminent international law codification conference, Britain softened its position by conditionally agreeing to several extended zones claimed by France and Spain.Footnote ³⁴ In the Schedule of Points circulated in advance of the Hague Conference, the British reply indicated that it was prepared to recognise the extended jurisdiction beyond territorial waters through bilateral or multilateral agreements.Footnote ³⁵

The other tendency among the three-mile territorial sea group was that the coastal State in addition claimed a jurisdictional zone within which at least the exercise of certain rights touching on vital interests was reserved.Footnote ³⁶ A good example was the liquor laws adopted by the United States in 1920s. By the Eighteenth Amendment to the Constitution, the United States prohibited the importation and exportation of intoxicating liquors for beverage purposes and enforced it on both US nationals and foreigners.Footnote ³⁷ Although the US government vigorously maintained the three-mile limit as the extent of territorial waters, it nonetheless seized numerous hovering vessels beyond that limit.Footnote ³⁸ Moreover, Congress passed the Tariff Act in 1922 claiming customs control over all ships, whether bound for US ports or not, within four leagues of the coast.Footnote ³⁹ Other examples include various extended customs zones or policing zones claimed by Argentina, Chile, Ecuador, Egypt, Estonia and Norway.Footnote ⁴⁰

Thus, by the 1900s there was a certain tendency towards endorsing the coastal State’s extended jurisdiction beyond territorial waters with at least a certain enforcement jurisdiction recognised. That tendency had been observed, analysed and finally incorporated into the formal agenda of the 1930 Hague Conference.

2.2.2 Failure to Secure an International Agreement

The First Conference for the Codification of International Law, held at The Hague under the auspices of the League of Nations in 1930, appointed Committee II to study the bases of discussion drawn up by the Preparatory Committee regarding territorial waters.Footnote ⁴¹ Due to wide divergences among delegations, Committee II was unable to reach an agreement in respect of the fundamental question of the breadth of territorial waters, which necessarily affected the results of the examination of other points.Footnote ⁴² The work of Committee II, however, did not go to waste, as it clarified the legal status of the territorial sea and paved the way for continuing development on this issue.

During the discussions of Committee II, it was recognised that ‘international law attributes to each Coastal State sovereignty over a belt of sea round its coasts’ which is essential for protecting the legitimate interests of the coastal State.Footnote ⁴³ It also adopted the term ‘territorial sea’ to describe the belt of sea over which the ‘sovereignty’ extends.Footnote ⁴⁴ Such ‘sovereignty’ was subject to conditions prescribed by international law, and one important condition resulted from the right of innocent passage granted to the vessels of all States.Footnote ⁴⁵ However, ‘outside the one of sovereignty no right of exclusive economic enjoyment may be exercised’.Footnote ⁴⁶

Correspondent with the divergent State practice as discussed above, Committee II was sharply divided on the question of the breadth of territorial sea and the associated question of coastal States’ jurisdiction in adjacent waters.Footnote ⁴⁷ Freedom of navigation was of utter importance to all maritime powers, ‘in their own interests they ought to favour the application of the principle by all possible means’.Footnote ⁴⁸ Consequently, the conciliatory approach of acknowledging a jurisdictional zone beyond territorial waters to achieve wider acceptance of the three-mile rule proposed by the Preparatory Committee was not well received at Committee II.Footnote ⁴⁹ Among those States that favoured an additional jurisdictional zone beyond the territorial sea, the purposes of customs and defence were mostly accepted; only four delegations advocated extension of the scope to include fishing interests, namely Portugal, Belgium, Iceland and Denmark.Footnote ⁵⁰ As a result, the Hague Conference merely adopted a recommendation that recognised the necessity of protecting the various products of the sea in the waters beyond the territorial sea, and affirmed the importance of measures of protection and collaboration to safeguard ‘the riches constituting the common patrimony’.Footnote ⁵¹

When Committee II concluded that it was unable to reach a convention on the territorial sea, the intention was to invite various States to continue exploring the question further and to reconvene a new conference as soon as was opportune.Footnote ⁵² At that time, the idea of certain jurisdictions existing separately from the notion of the territorial sea had emerged but was not widely accepted at the international level. As subsequent State practice showed, the divisions arising from previous claims over the adjacent waters would continue until an acceptable agreement was reached.

2.3.1 The Truman Proclamations

Aware of the necessity for preserving ‘an augmented supply of natural resources’ and conserving near-shore fisheries and acknowledging the inadequacy of the narrow extent of territorial waters for such purposes, the United States took unilateral measures to create new rules.Footnote ⁵³ Two proclamations issued simultaneously by US President Truman on 28 September 1945, the Continental Shelf Proclamation and the Fisheries Proclamation, which opened the door for claims of coastal State jurisdiction over the high seas.Footnote ⁵⁴

The Continental Shelf Proclamation asserted jurisdiction and control over ‘the natural resources of the subsoil and seabed of the continental shelf beneath the high seas but contiguous to the coasts of the [United States]’, as they were regarded as ‘appertaining to’ the coastal State.Footnote ⁵⁵ The United States had adopted the three-mile limit as the breadth of territorial waters and did not show any desire to challenge it before the late 1930s, except by enforcing jurisdiction under the liquor laws adopted during the Prohibition period in the 1920s.Footnote ⁵⁶ Thus, it was admitted from the beginning that this proposal was ‘to evolve new concepts of maritime territorial limits beyond three miles, and of rights to occupy and exploit the surface and subsoil of the open sea’.Footnote ⁵⁷ The United States claimed to base its policy on the propositions that the continental shelf may be regarded as ipso jure appurtenant to its territory on geographic and geomorphological grounds, and that the resources therein were affected by and dependent upon coastal State activities; therefore, it was reasonable for the United States to exercise ‘special jurisdictional and property rights in particular areas of the bed or subsoil of the high seas’, as well as for the purposes of ‘self-protection and as a matter of national defense’.Footnote ⁵⁸

The effect of the Fisheries Proclamation was to assert ‘the policy of establishing conservation zones for the protection of fishery resources’ in certain areas of the high seas contiguous to the coasts of the United States ‘wherein fishing activities have been or in the future may be developed and maintained on a substantial scale’.Footnote ⁵⁹ The United States reserved exclusive regulation and control over such conservation zones where fishing activities were conducted by its nationals only, while establishing and applying joint regulation and control in areas where fishing activities were conducted by nationals of other States.Footnote ⁶⁰ Bearing in mind previous failed claims over the Bering Sea fur-seals discussed above, the Fisheries Proclamation was asserted on ‘the premise that reasonable and just bases for the exercise of jurisdiction over the fisheries of an area of the high seas in the vicinity of the coasts of a state’ exist.Footnote ⁶¹ It not only recognised the right of other States to establish conservation zones off their coasts on a reciprocal basis, but also explicitly ensured that the high seas status of the areas in which such zones were established and freedom of navigation were in no way affected.Footnote ⁶²

In order to prevent protests from other States, the United States conducted international consultations with twelve foreign governments whose interests might be affected before the proclamations were made.Footnote ⁶³ For the Fisheries Proclamation in particular, the United States emphasised that it had no intention of extending the breadth of territorial waters or excluding foreign nationals, but rather was establishing clearly defined conservation zones in areas of the high seas contiguous to the coasts for conservation and protection purposes.Footnote ⁶⁴ Iceland and Cuba gave definitive replies regarding the Fisheries Proclamation; the British reluctantly accepted the Fisheries Proclamation, but welcomed the Continental Shelf Proclamation; Canada did not reply due to an imminent election, but from earlier dealings and the special relationship with the United States, it would likely have accepted the Fisheries Proclamation.Footnote ⁶⁵ Therefore, although such proclamations were clearly tantamount to an infringement of the existing general freedom of the high seas, they were not met by widespread protests.

Other factors contributed to the success of the Truman Proclamations. As technology advanced, methods of industrial-scale fishing developed progressively, resulting in more intensified exploitation, which caused a rapid depletion of certain marine resources, such as tuna, salmon and whales in the Pacific.Footnote ⁶⁶ In contrast, under the then international law, coastal State competence was limited to a narrow belt of territorial waters, which precluded coastal States from excluding foreign fishing vessels from the waters further offshore. Moreover, with modern technological progress, the utilisation of submarine areas for oil wells and mines was already practicable in the 1940s. The need for a basis for the extension of jurisdiction for a reasonable distance beyond territorial waters was accordingly recognised by coastal States.Footnote ⁶⁷ Furthermore, far away from the European battlefield, the United States was able to develop its national economy, science and technology, thereby building up its strength to take the lead in post-war reconstruction.Footnote ⁶⁸ As a result, when these two ground-breaking proclamations were published, they were generally accepted and widely followed.Footnote ⁶⁹

2.3.2 Latin American Practice

Unlike their moderate precedent, the maritime claims made by Latin American States following the Truman Proclamations were more ambitious. With the end of the Second World War, Latin American States were facing resumed competition from industrial-scale fishing and whaling by foreign fleets in the South Pacific Ocean and the Antarctic Zone.Footnote ⁷⁰ In addition, the geographical fact that a deep abyss along the west coast of South America causes the seabed to plunge abruptly before it rises to an offshore plateau, made the ordinary doctrine of the continental shelf irrelevant to some States.Footnote ⁷¹ In searching for alternative protections, some of the national decrees and proclamations attempted to claim sovereignty over the continental shelf and the superjacent waters to a minimum distance of 200 nautical miles (NM) measured from the baselines.Footnote ⁷²

As an immediate successor, the Mexican Presidential Declaration in 1945 laid claim to ‘the whole of the continental platform or shelf adjoining its coastline and to each and all of the natural resources existing there, whether known or unknown’ based on the grounds that the land forming the continental plateau rests on the continental shelf that ‘clearly forms an integral part of the continental countries’.Footnote ⁷³ With regard to fishing resources, with which the coastal State has been ‘endowed by nature’, their protection ‘should consist in the extension of control and supervision by the State to the places and zones … irrespective of their distance from the coast’.Footnote ⁷⁴ Mexico claimed exclusive rights over the fisheries resources and incorporated the continental shelf into its territory, rather than merely claiming jurisdiction and control of the natural resources therein. Nonetheless, it still recognised the lawful rights of third parties on a reciprocal basis and preserved the freedom of navigation.Footnote ⁷⁵

In order to protect the offshore fisheries effectively, Chile took the initiative in proclaiming a 200 NM sovereign maritime zone by Presidential Declaration in 1947, which was immediately followed by Peruvian Presidential Decree No. 781.Footnote ⁷⁶ Both Chile and Peru asserted ‘national sovereignty’, or (in the language of the Peruvian Decree) ‘national sovereignty and jurisdiction’, over the continental shelf and the adjacent seas, regardless of depth, for preserving, protecting and exploiting the natural resources.Footnote ⁷⁷ By virtue of these proclamations, coastal protection and control over the adjacent seas were immediately extended to a distance of 200 NM measured from the coastlines without affecting ‘the rights of free navigation on the high seas’.Footnote ⁷⁸ This single comprehensive claim of sovereignty over the continental shelf and its superjacent waters clearly went beyond the scope of the Truman Proclamations.Footnote ⁷⁹ Nevertheless, similar claims beyond the limit of the territorial waters were declared by Argentina, Costa Rica, Cuba, El Salvador, Honduras, Iceland, Nicaragua, Panama, and Saudi Arabia.Footnote ⁸⁰

In order to consolidate their positions with respect to the new 200 NM maritime zone, Chile, Ecuador and Peru, all countries which had no continual continental shelf, signed a joint Declaration on the Maritime Zone in 1952 (Santiago Declaration) to claim sole right based on distance.Footnote ⁸¹ They declared that each State ‘possesses exclusive sovereignty and jurisdiction over the sea along the coasts of their respective countries to a minimum distance of 200 nautical miles from the coasts’, including ‘the seabed and the subsoil thereof’.Footnote ⁸² There were controversial interpretations with regard to the character of the ‘maritime zone’ established by this Santiago Declaration. Although it used the phrase ‘exclusive sovereignty and jurisdiction’, the purpose of establishing such zones was solely for ‘the conservation, development and exploitation of these resources, to which the coastal countries are entitled’.Footnote ⁸³ In addition, the Santiago Declaration allowed ‘innocent and inoffensive passage through the area indicated for ships of all nations’, which was different from the preserved freedom of navigation beyond the limit of the territorial sea made in their individual national decrees.Footnote ⁸⁴ This supports the assumption that the Santiago Declaration was proposing a special maritime zone that incorporates exclusive rights over all resources found in this area, with limited recognition for the freedom of navigation that is inoffensive to such economic purposes.Footnote ⁸⁵

The Latin American practices appeared to diverge significantly in scope and character from the Truman Proclamations, in particular with regard to the claims of sovereignty and jurisdiction to a 200 NM maritime zone. These unilateral claims, as well as the first international instrument in this respect, the Santiago Declaration, served as the foundation for subsequent developments in the international law of the sea and constituted a major source of inspiration for the concept of the EEZ.Footnote ⁸⁶

2.4.1 The 1958 and 1960 Law of the Sea Conferences

The trend of extending coastal State jurisdiction up to a 200-mile maritime zone, which emerged and developed after the Second World War, gained little support at both the First and Second United Nations Conferences on the Law of the Sea, held in Geneva in 1958 and 1960 respectively.Footnote ⁸⁷

At its first session in 1949, the International Law Commission (ILC) incorporated the high seas and the territorial waters as topics whose codification were considered as ‘necessary or desirable’.Footnote ⁸⁸ The Chairman observed the emerging State practice of establishing reserved zones for the preservation of fisheries that may affect ‘the sea approaches to various territories’ in spite of ‘the time-honoured principle of the freedom of the high seas’.Footnote ⁸⁹ The ILC’s work accumulated into a draft of Articles Concerning the Law of the Sea adopted in 1956 (ILC Draft Articles), comprising 73 articles dealing with territorial waters and high seas (including high seas fisheries), as well as the continental shelf.Footnote ⁹⁰

At the ILC, the idea of endorsing a separate exclusive fishery right to the coastal State beyond the territorial sea limit was strongly resisted, while the freedom of fishing was explicitly preserved.Footnote ⁹¹ Nevertheless, the concept of the continental shelf was accepted. It was defined as ‘the seabed and subsoil of the submarine areas adjacent to the coast but outside the area of the territorial sea, to a depth of 200 meters or, beyond that limit, to where the depth of the superjacent waters admits of the exploitation’, where the coastal State had ‘sovereign rights for the purpose of exploring and exploiting its natural resources’.Footnote ⁹² It was also confirmed that the sovereign rights ‘over the continental shelf do not affect the legal status of the superjacent waters as high seas’.Footnote ⁹³ The ILC Draft Articles demonstrated the tension between the coastal State claims and the freedom of the seas in the 1950s, which denied the previous proclamations of sovereignty and exclusive jurisdiction made by Latin American States and paved the way for the 1958 First Geneva Conference.

Among the four Conventions adopted at the 1958 First Geneva Conference, there was no recognition of a separate jurisdictional zone for fishery interests. The Territorial Sea and the Contiguous Zone Convention adopted a 12-mile contiguous zone as an independent regime of the territorial sea, where the coastal State has enforcement jurisdiction to prevent and punish ‘infringement of its customs, fiscal, immigration or sanitary regulations within its territory or territorial sea’.Footnote ⁹⁴ This provision signified that the contiguous zone was unrelated to fisheries. In addition, the High Seas Convention defined the high seas as ‘all parts of the sea that are not included in the territorial sea or in the internal waters of a state’, plainly declaring that the water column of the contiguous zone and above the continental shelf has the same legal status as the high seas.Footnote ⁹⁵ Therefore, within the contiguous zone ‘no state may validly purport to subject any part of them to its sovereignty’, thereby preserving the freedoms of navigation and fishing.Footnote ⁹⁶ Nevertheless, the Fisheries Convention recognised that the coastal State has ‘a special interest in the maintenance of the productivity of the living resources in any area of the high seas adjacent to its territorial sea’ and that it could ‘adopt unilateral measures of conservation’ to this end when fulfilling the requirements of prior consultation, urgent need, scientific support and non-discrimination.Footnote ⁹⁷ Though this ‘special interest’ was significantly different from the extensive claims made by some Latin American States, it was the first modification of the freedom of fishing on the high seas and to some degree paved the way for extended coastal State jurisdiction over fisheries beyond the territorial sea.

In contrast, the emerging doctrine of the continental shelf had matured to be accepted on the international level and provided a victory for those seeking extended coastal State competence. The Continental Shelf Convention recognised the coastal State’s sovereign rights over the continental shelf ‘for the purpose of exploring it and exploiting its natural resources’, including ‘the mineral and other non-living resources of the seabed and subsoil together with living organisms belonging to sedentary species’.Footnote ⁹⁸ Moreover, such rights ‘do not affect the legal status of the superjacent waters as high seas’, which undoubtedly did not constitute the right as one of ‘sovereignty’.Footnote ⁹⁹

It is noteworthy that the 1958 First Geneva Conference took a tentative move to recognise certain rights of the coastal State beyond the territorial sea, but State practice was not yet mature enough to reach a consensus except for on the matter of the continental shelf. As the 1958 First Geneva Conference adjourned, there was a general understanding that there should be a second law of the sea conference to continue to work on the two unsolved questions, namely, the breadth of the territorial sea and the extent of the exclusive fisheries jurisdiction beyond the territorial sea.Footnote ¹⁰⁰ Most proposals received at the 1960 Second Geneva Conference envisaged a narrow breadth of the territorial sea accompanied by a narrow fishery zone that was beyond and adjacent to the territorial sea, ‘coupled with a phasing out of foreign fishing activity’ therein.Footnote ¹⁰¹ One notable proposal was a so-called six-and-six formula co-sponsored by the United States and Canada that proposed a six-mile territorial sea with a further six-mile fishing zone where the coastal State ‘shall have the same rights in respect of fishing and exploitation of the living resources of the sea as it has in its territorial sea’.Footnote ¹⁰² However, this proposal fell one vote short of the two-thirds majority necessary for adoption.Footnote ¹⁰³

It is clear that, after the Second World War, State practice took a shift towards the acceptance of extended coastal State rights over the maritime areas beyond and adjacent to the territorial sea, in particular the recognition of the doctrine of the continental shelf. Although exclusive fisheries jurisdiction beyond the territorial sea was not accepted, neither was the 200-mile single maritime zone claimed by the Latin American States. The work of the two Geneva Conferences was decisive for the development of the law of the sea in the period thereafter.

2.4.2 Post-Geneva Developments

The law of the sea was developed in the broader context of the international relations that witnessed the political, social and economic changes after the Second World War. One of the most decisive events has been the disintegration of the colonial empires and the birth of scores of a large number of new States that carry with them a legacy of resentment over their past status and a host of issues relating to their development.Footnote ¹⁰⁴ In seeking to establish their national identity on the international stage, these new States were eager to embrace the ideas of the sovereignty and equality of States, and to support the right of permanent sovereignty over natural resources.Footnote ¹⁰⁵ Their needs are manifested in the issues of national claims over natural resources in the adjacent maritime areas that came to shape the legal order for the ocean.Footnote ¹⁰⁶

Following the two Geneva Conferences, there was a renewed trend of coastal States to extend their claims of the breadth of the territorial sea or over specific rights or jurisdiction in the areas beyond the territorial sea.Footnote ¹⁰⁷ For most coastal States that were actively engaged in this process, the primary drive was to preserve their fishing rights from the growing interests of distant-water fishing States.Footnote ¹⁰⁸ A few notable practices emerged in this period. First, States quickly adopted the practice of extending the breadth of their territorial sea to 12 NM.Footnote ¹⁰⁹ Second, in the absence of general rules regulating fishery rights, States’ claims diverged between a 12-mile fishery zone up to 200-mile fishery zone, with numerous different breadths in between, for the purpose of asserting fisheries jurisdiction or other extensive rights.Footnote ¹¹⁰ Third, States concluded bilateral and multilateral instruments to secure recognition of their claims.

In Europe, there were emerging attempts to increase fisheries jurisdiction beyond the territorial sea. The inconsistent national practice, however, had led to the arrest of a number of fishing vessels and provoked conflicts among several States with some of the disputes been brought to the International Court of Justice (ICJ). In 1964, twelve European States signed a Fisheries Convention, inter alia, providing that each ‘coastal State has the exclusive right to fish and exclusive jurisdiction in matters of fisheries within the belt of six miles measured from the baseline of its territorial sea’, and reserving the right to fish to only the coastal State and certain habitual fishing contracting parties in the belt between six and twelve miles from the baseline.Footnote ¹¹¹ This was an effort to reconcile the desire of coastal States to extend their jurisdiction over a greater portion of the sea but still preserve the fishing rights of other interested States on a regional level.

More extensive claims emerged in Latin America, where States had extended their jurisdiction over the adjacent seas to distances greater than 12 miles. Brazil, for instance, extended its territorial sea to 200 NM, while granting ships of all other nations the right of innocent passage.Footnote ¹¹² Similar claims to a 200-mile jurisdictional zone were made by Ecuador,Footnote ¹¹³ El Salvador,Footnote ¹¹⁴ NicaraguaFootnote ¹¹⁵ and Panama.Footnote ¹¹⁶ Among the 200 miles claimants, Uruguay established two well-distinguished legal regimes in this zone. By Decree 604/969 and the Fisheries Act Law No. 13833, both adopted on 3 December 1969, Uruguay extended its territorial sea to 200 miles: within the inner zone of 12 miles, it reserved the exclusive right to exploit the natural resources, and ships of all nations enjoyed the right of innocent passage; in the remaining 188 miles, the freedom of navigation and overflight were retained and fishing activities were permitted under certain conditions.Footnote ¹¹⁷ This regime served as an example of the functional approach to claim maritime jurisdiction, and it became the closest approximation to the nascent concept of the EEZ.

The claimant States supplemented their unilateral claims by a series of regional declarations to consolidate their positions in response to the movement within the United Nations towards the convocation of a third law of the sea conference.Footnote ¹¹⁸ The States involved in this revival were mainly newly independent developing countries of Latin America, Africa and Asia. For the Latin American States, this was an inevitable phase in the continuous process of evolution of their unilateral claims, while most newly independent States in Africa and Asia were making their first contribution to the development of international law that could meet their special needs and even form part of a new international economic order.Footnote ¹¹⁹

The Latin American States consolidated their positions on the 200-mile zone in two multilateral declarations adopted in 1970. The first meeting, attended by nine States that claimed a 200-mile zone, unanimously adopted the Montevideo Declaration.Footnote ¹²⁰ The subsequent meeting was intended to embrace all the States of the Latin America and Caribbean regions, with the aim of co-ordinating a common position based on the maritime policy agreed upon at the previous meeting, and 14 of the 20 participating States signed the Lima Declaration.Footnote ¹²¹ Both Declarations recognised the ‘geographical, economic and social link between the sea, the land, and man who inhabits it’, expressed concern over the ‘abusive practice in the extraction of marine resources’ and the ‘disturbance of the ecological balance’, and affirmed that each coastal State has the sovereign right over its natural resources.Footnote ¹²² Accordingly, the coastal State had the right to establish the limits of its maritime sovereignty or jurisdiction in accordance with reasonable criteria, to take control of the marine resources within, and to exercise other jurisdiction without prejudice to the freedom of navigation and overflight enjoyed by all States.Footnote ¹²³ The Declarations endowed the coastal State with the right to decide its maritime jurisdiction limit – not to seek sovereignty for the sake of territorial expansion, but to accomplish the need to protect and utilise the natural resources for its own economic benefit.

The 200-mile maritime zone was refined in the Santo Domingo Declaration by a number of Caribbean States as the ‘patrimonial sea’, extending to a maximum of 200 NM, in which the coastal State had ‘sovereign rights over the renewable and non-renewable natural resources, which are found in the waters, in the seabed and in the subsoil’, instead of sovereignty over the sea itself.Footnote ¹²⁴ Freedom of navigation, overflight and the laying of submarine cables and pipelines of all States were recognised ‘with no restrictions other than those resulting from the exercise by the Coastal State of its rights within the area’.Footnote ¹²⁵ The concept of ‘patrimonial sea’ was one of the immediate precursors of the EEZ, in the sense that it emphasised the economic interests of the coastal State over the natural resources, rather than the extension of jurisdiction for territorial purposes, while maintaining respect for the high seas freedoms of all other States.Footnote ¹²⁶

The newly independent States in Africa also faced a serious threat to their offshore fisheries due to over-exploitation by foreign distant-water fishing fleets, which brought them closer to the Latin American practice of protecting such natural resources.Footnote ¹²⁷ Inspired by their participation in the Lima Conference, State members of the Asian-African Legal Consultative Committee included the subject of the law of the sea on the agenda for the 1971 Colombo session that set up a working group to consider related issues.Footnote ¹²⁸ At the 1972 Lagos session, Kenya presented a working paper on ‘the Exclusive Economic Zone Concept’, which attempted to safeguard the coastal State’s economic interests without interfering unduly in other States’ legitimate interests in navigation.Footnote ¹²⁹ This concept embodied a relatively narrow belt of territorial sea of 12 miles, supplemented by the exclusive right of coastal States for economic purposes in a wider zone up to a maximum distance of 200 NM from the baselines.Footnote ¹³⁰ This proposal received widespread support within the meeting, and encouraged States to explore this pattern further.Footnote ¹³¹

A unified position on this economic zone was presented in the final Report of the African States Regional Seminar on the Law of the Sea in 1972.Footnote ¹³² This Report acknowledged that the coastal State has the right to determine the limits of its maritime jurisdiction, where it has the right to establish beyond the 12 NM territorial sea an economic zone over which it will have an exclusive jurisdiction for the exploitation of the living resources and pollution control, while other States enjoy the freedom of navigation, overflight and the laying of submarine cables and pipelines.Footnote ¹³³

The EEZ concept was further strengthened by the Declaration of the Organization of African Unity on the Issues of the Law of the Sea (OAU Declaration) as the general position of the African States at the newly convened conference on the law of the sea.Footnote ¹³⁴ The OAU Declaration recognised ‘the right of each coastal State to establish an [EEZ] beyond their territorial seas whose limits shall not exceed 200[NM]’, within which it ‘shall exercise permanent sovereignty over all the living and mineral resources and shall manage the zone without undue interference with the other legitimate uses of the sea, namely, freedom of navigation, overflight and laying of cables and pipelines’.Footnote ¹³⁵ The OAU Declaration was incorporated into a proposal entitled Draft Articles on Exclusive Economic Zone and presented to the Sea-Bed Committee in 1973.Footnote ¹³⁶

3.1.1 Codification History

Despite the absence of a general rule of international law fixing the maximum breadth of the territorial sea or the limit of coastal State jurisdiction over fisheries, it was largely the concern over deep seabed mining that triggered the convocation of a new law of the sea conference.Footnote ³ Initiated by a Maltese proposal, the United Nations General Assembly (UNGA) established the ad hoc Committee on the Peaceful Uses of the Sea-Bed and the Ocean Floor beyond the Limits of National Jurisdiction (Sea-Bed Committee) in 1968, consisting of 42 member States to study all related issues.Footnote ⁴ In 1970, the UNGA decided by Resolution 2759 C (XXV) to convene the Third United Nations Conference on the Law of the Sea in 1973 and instructed the Sea-Bed Committee to act as the preparatory body for the Third Conference.Footnote ⁵ The issues of coastal States’ rights and jurisdiction over the natural resources in areas beyond the territorial sea were assigned to Sub-Committee II under Item 6: Exclusive Economic Zone beyond the Territorial Sea and Item 7: Coastal State Preferential Rights or other Non-Exclusive Jurisdiction over Resources beyond the Territorial Sea.Footnote ⁶

During the consideration of substantive issues in the 1972 session of the Sea-Bed Committee, developing countries seeking exclusive rights over living and non-living resources widely supported the concept of the 200-mile economic zone, while developed States favoured only the preferential rights of the coastal State to fisheries to an adequate distance beyond the territorial sea.Footnote ⁷ Controversy with regard to different approaches continued in the 1973 session with a proliferation of proposals for a 200-mile zone.Footnote ⁸ However, the landlocked and geographically disadvantaged States (LL/GDS), which were also developing States, formed another group that resisted the approach of an additional maritime zone under the coastal States’ jurisdiction, asserted their position of seeking access to and from the sea, and sought to participate in resource exploitation in the proposed area.Footnote ⁹ Therefore, when the Third Conference commenced its first session in 1973, the positions of States and groups of States in respect to an economic zone beyond the territorial sea were interrelated, overlapping and sometimes conflicting.Footnote ¹⁰

At the first substantive session of the Third Conference in Caracas in 1974, the concept of an economic zone, with specific attribution of rights between the coastal State and other States, was virtually accepted.Footnote ¹¹ In fact, the formula of a 12 nautical miles (NM) territorial sea and an economic zone to a maximum distance of 200 NM was the most ‘acceptable accommodation for those who favored extending coastal control over resources beyond the territorial sea but were opposed to any extension of national territorial sovereignty’.Footnote ¹² The real issue was how to clarify the juridical status of the zone. Major maritime States sought to characterise the zone as part of the high seas, assigning only resource-related rights to coastal States; some developing States sought to characterise it as territorial sea, with no more than navigational and related rights granted to other States; and a third grouping intended to create a new legal regime that formed neither part of the highs seas nor of the territorial sea.Footnote ¹³

The negotiations under Sub-Committee II were assisted by an informal working group of juridical experts, known as the Evensen Group after its chairperson Minister Jens Evensen of Norway, to resolve the competing politics and interests of various States and groups of States with respect to the EEZ.Footnote ¹⁴ Before the third session in 1975, the Evensen Group produced a cohesive set of draft articles on this zone. The draft articles proposed to give the coastal State sovereign rights and jurisdiction for economic purposes, to reserve to all States the fundamental navigational freedoms and to require both parties to observe the due regard obligation when exercising their rights and performing their duties.Footnote ¹⁵ However, this proposal was rejected by the Group of 77 and the LL/GDS Group mainly because it failed to meet their specific needs and because it reflected a strong coastal State orientation by reserving to it sovereign rights over the resources.Footnote ¹⁶ The draft articles of the Evensen Proposal were incorporated into the Informal Single Negotiation Text (ISNT) Part II, under the title ‘The Exclusive Economic Zone’, adopted at the third session.Footnote ¹⁷ Essentially, it consolidated the general balance of competing interests between different States within the new maritime zone and established the extent and character of the zone.Footnote ¹⁸

ISNT Part II had been discussed on an ‘article-by-article’ basis under ‘a rule of silence’ and revised during the fourth session in 1976 into the Revised Single Negotiating Text (RSNT) Part II.Footnote ¹⁹ There was a general agreement on the concept and breadth of the EEZ, but delegates remained divided with regard to the definition and status of the zone.Footnote ²⁰ In the RSNT, the Chairman of Sub-Committee II stated that ‘an accommodation could be found’ and no changes to the text should be made to avoid upsetting the balance implicit in the ISNT, and he further declared that ‘nor is there any doubt that the [EEZ] is neither the high seas nor the territorial sea. It is a zone sui generis’.Footnote ²¹ This approach was in line with the third grouping of the State negotiation positions, that of treating the economic zone as a separate maritime zone that contained no presumption in favour of either coastal States or other user States.

During the fifth session in 1976, the President of the Third Conference ‘identified as a key issue the question of the definition and status of the [EEZ]’ where ‘a compromise must be reached’, and noted the purpose of Negotiating Group No. 1 within Sub-Committee II was to ‘consider the questions of the legal status of the [EEZ] and of the rights and duties of the coastal State and other States in that zone’.Footnote ²² However, no practical results were achieved, and the issue was eventually resolved through the work of a private group with 17 delegations formed at the sixth session in 1977, known as the Castañeda-Vindenes Group.Footnote ²³ The Castañeda-Vindenes Group produced a comprehensive draft of articles to address the outstanding issues of the economic zone that reinforced the sovereign rights of coastal States and clarified the relative freedoms preserved for other States, emphasised the mutual obligation of due regard and suggested the inclusion of ‘a new provision setting out the specific legal regime of the [EEZ]’.Footnote ²⁴ The draft articles produced by the Castañeda-Vindenes Group provided a better basis for further negotiations and were integrated into the Informal Composite Negotiating Text (ICNT) Part V, along with the progress made on other maritime regimes at the Third Conference as a whole.Footnote ²⁵ By then, a negotiated draft article recognising the sui generis legal status of the EEZ made its first appearance at the Third Conference, which was retained in subsequent revised texts and adopted in Part V of UNCLOS.Footnote ²⁶

3.1.2 A Sui Generis Functional Zone

A mini-package deal was achieved among the negotiated provisions on the EEZ, with a core provision that defines the legal status of the new economic zone. Article 55 of UNCLOS defined the EEZ as ‘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’.Footnote ²⁷ This provision was paralleled by Article 86, a definition of the high seas that excluded its application to the EEZ.Footnote ²⁸ Article 55 decisively rules out the possibility that the new maritime zone be assimilated into either the territorial sea or the high seas, and confirmed the sui generis status of the EEZ as a new legal regime of the law of the sea.Footnote ²⁹

The EEZ shares the feature of a functional zone with those that have been established before, such as the fishery zone and the contiguous zone, where the coastal State exercises certain specialised powers in a maritime area beyond the territorial sea.Footnote ³⁰ But these previous zones differ in not affecting the high seas status where rights that were not attributed to the coastal States are continually enjoyed by all other States.Footnote ³¹ For example, the coastal State’s right to exercise control to prevent and punish certain infringements in the contiguous zone is an exceptional power restricted in scope, a necessary extension of its enforcement jurisdiction in the territory or the territorial sea.Footnote ³² The contiguous zone and the EEZ, although overlapping in the geographical aspect, are two distinctive regimes whereby the coastal State may exercise different powers therein.Footnote ³³

The EEZ is also different from the continental shelf, which derived from the idea of the innateness of State sovereignty over the land extension to the submarine terrain. The coastal State’s rights over the continental shelf are exclusive in the sense that if it does not explore the continental shelf or exploit its natural resources, no one may undertake these activities without its express consent.Footnote ³⁴ In contrast, the establishment of the EEZ is optional, and its existence depends on an actual claim made by the coastal State.Footnote ³⁵ Where the coastal State chooses not to claim an EEZ, the water column above its continental shelf continues to be the high seas. When claimed, the EEZ co-exists with the contiguous zone out to 24 NM and with the continental shelf to the maximum of 200 NM from the baselines from which the breadth of the territorial sea is measured.Footnote ³⁶

The EEZ breaks the dichotomy between the territorial sea and the high seas. It grants the coastal State sovereign rights over the natural resources and specified jurisdiction, preserves the right of communication to all States, and recognises the right of LL/GDS to participate in the exploitation of an appropriate part of the surplus of the living resources.Footnote ³⁷ Additionally, it clearly recognises the existence of residual rights and declares that such rights will not be automatically attributed to either the coastal State, based on the territorial sea presumption, or to other States, based on the high seas presumption.Footnote ³⁸ In this sui generis zone, States’ rights and duties are attributed and exercised in a balanced manner where no one enjoys absolute authority but must give due regard to the rights and duties of others.

The functional character of the EEZ is concisely reaffirmed by international jurisprudence. For example, in the 2001 Qatar v. Bahrain, the International Court of Justice (ICJ) stated that ‘[m]ore to the north … the delimitation to be carried out will be one between the continental shelf and [EEZ] belonging to each of the Parties, areas in which States have only sovereign rights and functional jurisdiction’.Footnote ³⁹ In the 2006 Barbados v. Trinidad and Tobago, both parties recognised that the EEZ is ‘an optional elected zone’ where the coastal State possesses only sovereign rights.Footnote ⁴⁰ These statements confirmed that the EEZ is a specific legal regime where coastal States only have sovereign rights and functional jurisdiction.

The establishment of the EEZ was considered the most significant outcome of the Third Conference.Footnote ⁴¹ It first needs to be acknowledged that the codification of the EEZ was only achieved within the broader context of the Third Conference that negotiated all subjects and issues as a package deal.Footnote ⁴² Bearing in mind the subjects and issues are interrelated, the package deal approach allowed States to weigh their interests and make compromises and trade-offs in order to secure their core interests. The acceptance of the provisions on the EEZ as a whole was reached in the context of satisfactory outcomes on the limit of the territorial sea, the navigational issues in straits used for international navigation and archipelagic waters, the access and transit rights of LL/GDS and the continental shelf.Footnote ⁴³ Secondly, within the mini-package deal of the EEZ, a delicate balance is maintained by its functional character. As a sui generis zone, the rights and freedoms are attributed between the coastal State and other States following a general principle and their exercise are guided by a mutual mandatory due regard obligation. The balance between the sovereign rights and jurisdiction of coastal States and the freedoms of all State in the EEZ is maintained in a dynamic manner and needs to be assessed in a given situation.Footnote ⁴⁴

3.2.1 The Attribution of Rights and Freedoms

3.2.2 The Exercise of Rights and Freedoms

Both Articles 56 and 58 contain an obligation that the acting State, while exercising its rights and performing its duties, ‘shall have due regard to the rights and duties’ of the other party. For the coastal State, the obligation extends to ‘shall act’ in a manner compatible with UNCLOS, and for the other State, they ‘shall comply with’ the laws and regulations duly adopted by the coastal State.Footnote ⁶⁶ Additionally, all activities taking place in the EEZ must comply with the general obligations of use of the sea, including acting in good faith and non-abuse of rights, and for peaceful purposes.Footnote ⁶⁷

3.2.3 Resolving Conflicts Regarding Residual Rights

Recognising that the EEZ is a sui generis zone in which not all uses of the zone could be clearly attributed to either the coastal State or other States, Article 59 was introduced to provide a formula to resolve conflicts regarding the attribution of residual rights and jurisdiction in the EEZ.Footnote ⁹⁸ Article 59 requires that ‘the conflict should be resolved on the basis of equity and in the light of all the 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’. This formula is often considered to be the main evidence of the sui generis character of the EEZ and the cornerstone of the construction of the EEZ legal regime.Footnote ⁹⁹ It represents the ultimate exposition that UNCLOS does not attribute the residual rights to either the coastal State or the other State, but rather each case, as it arises, will have to be decided on its own merits on the basis of the criteria set out in Article 59.Footnote ¹⁰⁰

If interpreted strictly, Article 59 may only be applicable in situations where UNCLOS does not attribute rights or jurisdiction, hence referring to uses that cannot be assimilated to any attributed uses of the EEZ.Footnote ¹⁰¹ Taken together, Articles 56 and 58 constitute the essence of the regime of the EEZ, and it is clear that most of the conventional uses have been covered.Footnote ¹⁰² However, there may be new uses of the sea resulting from future scientific and technological developments. More importantly, it could be argued that the formula and criteria contained in Article 59 could be used to resolve conflicts regarding various uses or activities that have not been explicitly included in Part V. Thus, Article 59 may play a role in resolving conflict regarding the conduct of military activities, the use of installations and structures that are not for the purpose of the exercise of coastal State rights, ship wrecks, the recovery of archaeological and historical objects, the designation of traffic separation schemes and other activities to enhance maritime safety, pure marine scientific research and the promotion of maritime security.Footnote ¹⁰³

In contrast to the due regard obligation that is guided towards the ‘rights and duties’ of the counter State, Article 59 applies to a conflict that arises between the ‘interests’ of the coastal State and any other State or States, and the resolution involves taking into account the respective importance of the ‘interests’ involved to the parties. The negotiation history does not illustrate a particular discussion on why the term ‘interests’ was chosen. ‘Interests’ is a more general term that could be used to include any activities or connections with something that affects the State, especially if it may benefit from them in some way that invokes its willingness to protect them. The interests of a State could be grouped into political, security, historical, economic, social and cultural perspectives, and a certain activity may involve multiple perspectives of interests.

Article 59 is the only provision in UNCLOS that directly refers to ‘“equity” in a normative text for the resolution of conflicts regarding the attribution of rights and jurisdiction in the [EEZ]’.Footnote ¹⁰⁴ However, the meaning of the term ‘equity’ is not clear.Footnote ¹⁰⁵ The term has been interpreted by the ICJ as ‘a matter of abstract justice’Footnote ¹⁰⁶ and ‘a general principle directly applicable as law’Footnote ¹⁰⁷ as opposed to the phrase ‘equitable principles’, which are ‘actual rules of law’ based on ‘a foundation of very general precepts of justice and faith’.Footnote ¹⁰⁸ Thus ‘equity’, when used as an independent basis of decision, must be understood in the light of the circumstances peculiar to the case in question in order to fulfil the requirements of justice to a given dispute.Footnote ¹⁰⁹ The application of ‘equity’ as a basis to resolve conflicts calls for the consideration of fairness, reasonableness and individualised justice that is specific to that conflict.Footnote ¹¹⁰

In Article 59, the norm of ‘equity’ is qualified by substantive criteria for finding the most appropriate solution, among which are the assessment of ‘all the relevant circumstances’ and ‘the respective importance of the interests’ for the parties involved and for the international community.Footnote ¹¹¹ This assessment should take into consideration the parallel existence of the reciprocal due regard obligation and the general principle of attributing rights and freedoms laid down in Articles 56 and 58.Footnote ¹¹² As such, as a precondition, there is no general presumption in favour of either the coastal State or any other State in a specific circumstance. It is reasonable to argue that, since all the resource and economic originated rights are exclusively attributed to the coastal State, the Article 59 formula would tend to favour the coastal State if the rights and jurisdiction in dispute are of economic interests or concern, and would tend to favour the interests of other States or the international community if the issue does not involve the exercise of resource rights.Footnote ¹¹³

It is noteworthy that States hold different interpretations of the formula adopted in Article 59. For example, Ecuador declared that ‘it has the exclusive right to regulate uses or activities not expressly provided for in the Convention (residual rights and jurisdiction) that relate to its rights within the 200 nautical miles, as well as any future expansion of the said rights’.Footnote ¹¹⁴ Both Cabo Verde and Uruguay claimed jurisdiction over ‘the uses and activities not provided for expressly’ but are related to the sovereign rights and jurisdiction of the coastal State.Footnote ¹¹⁵ Some States, notably Belgium, Germany, Italy, the Netherlands, Sweden and the United Kingdom, refute arguments that the coastal State enjoys other residual rights in the EEZ.Footnote ¹¹⁶

Article 59 is a due-regard-type provision that can be considered ‘a skillful diplomatic device which tries to reconcile opposing positions by means of an elastic formulation’.Footnote ¹¹⁷ It has been described as ‘surely the most loosely worded [provision] of the entire Convention’ and can only be clarified through subsequent State practice.Footnote ¹¹⁸ In circumstances where a conflict arises regarding the attribution of rights or jurisdiction in the EEZ, the parties must attempt to reach a solution based on the criteria provided under Article 59. If this is unsuccessful, then they may resolve such dispute using the dispute settlement procedures provided in Part XV of UNCLOS. Third-party adjudication will be critical to determining the normative content of Article 59 and thus the limits of the rights and duties of any specific State in the EEZ.Footnote ¹¹⁹

3.2.4 Settlement of Disputes

Historically, international disputes have been settled through diplomatic efforts, economic sanctions or by force, and only submitted to third-party processes with the expressed consent of the State parties involved.Footnote ¹²⁰ UNCLOS is one of the few international conventions that provide mandatory jurisdiction entailing binding decisions for disputes arising from its interpretation and application.Footnote ¹²¹ This has been hailed ‘as one of the most significant developments in dispute settlement in international law’.Footnote ¹²² The achievement has, nonetheless, been somewhat undercut by the embedded exceptions and limitations to the compulsory procedure, in particular with regard to those relating to the EEZ.Footnote ¹²³

At an early stage of the negotiations during the Third Conference, it was recognised that the dispute resolution system would only be acceptable on the condition that certain issues be excluded from the obligation to submit to a compulsory procedure entailing binding decisions.Footnote ¹²⁴ Moreover, the controversy relating to the exercise of the coastal States’ sovereign rights in the EEZ was one of the ‘hard-core’ issues in the negotiation of the dispute settlement procedures.Footnote ¹²⁵ The compromise achieved in UNCLOS is that disputes relating to the coastal State’s ‘sovereign right or jurisdiction’ in the EEZ are ipso facto excluded from the compulsory dispute settlement procedures and disputes relating to the freedoms of navigation, overflight and the laying of submarine cables and pipelines are subject to compulsory procedures.Footnote ¹²⁶ Such a formula essentially reflects the delicate balance between the rights and freedoms of the coastal State and other States in the EEZ.

The choice of forum follows the general provisions whereby the dispute will be submitted to the same procedure chosen by both parties, otherwise to arbitration in accordance with Annex VII, unless otherwise agreed.Footnote ¹²⁷ The introduction of arbitral tribunals as the default compulsory procedure, where the composition of the tribunal is determined in consultation with the parties, presumably gives parties more confidence in using the compulsory third-party dispute settlement.Footnote ¹²⁸ Such flexibility as to the choices of fora and the priority of consent of the parties mirrors States’ general position toward dispute settlement, and serves to narrow down the scope of compulsory procedures.Footnote ¹²⁹

The core to the comprised formula is articulated in Article 297. It first acknowledges that three types of disputes concerning the interpretation or application of the EEZ regime with regard to the exercise of a coastal State’s rights and jurisdiction are subject to compulsory procedures. Not only may the coastal State confront other States’ wrongful use of the preserved freedoms, but Article 297 also enables other States to challenge the actions of the coastal State if they have unduly affected the exercise of preserved freedoms in the EEZ.Footnote ¹³⁰ In addition, the coastal State’s actions to implement and enforce specified international rules and standards for the protection and preservation of the marine environment may also be challenged.Footnote ¹³¹

Article 297 further states that disputes concerning the interpretation and application of relevant provisions relating to marine scientific research and fisheries shall be subject to the compulsory procedures except in certain cases. In the case of marine scientific research, the exercise by the coastal State of a right or discretion to grant or withhold consent, or a decision by the coastal State to order suspension or cessation of a research project in its EEZ, is exempted.Footnote ¹³² In the case of fisheries, disputes relating to the coastal State’s sovereign rights with respect to the living resources in the EEZ or their exercise’ are exempted.Footnote ¹³³ Only in limited cases, where there is alleged manifest non-compliance with UNCLOS or abuse of a right by the coastal State, and the parties cannot reach a settlement, may the dispute be submitted to conciliation.Footnote ¹³⁴ The scope of the exemption for fisheries has been interpreted to be narrow and closely linked with the utilisation and management of the living resources rather than excluding all disputes concerning living resources.Footnote ¹³⁵

It is important to recognise that the enumerated types of cases in Article 297 do not restrict a court or tribunal from considering disputes concerning the coastal State’s exercise of sovereign rights and jurisdiction in other cases. Where a dispute concerns ‘the interpretation or application’ of relevant provisions of UNCLOS, and ‘provided that none of the express exceptions to jurisdiction set out in Article 297(2) and 297(3) are applicable, jurisdiction for the compulsory settlement of the dispute flows from Article 288(1)’.Footnote ¹³⁶ Although it is recognised that certain sovereign rights and exclusive jurisdiction of the coastal States in the EEZ are not to be questioned by a third party, the manner of their exercise ‘should be [justiciable] before an appropriate forum’ to avoid unreasonable interference with the jus communicationis of other States.Footnote ¹³⁷

Additionally, Article 298 gives all States the right to make optional exceptions to the compulsory dispute settlement procedure by unilateral declaration.Footnote ¹³⁸ In relation to the exercise of rights and duties in the EEZ, States may declare that they do not accept compulsory jurisdiction regarding disputes concerning military activities, disputes concerning coastal State’s law enforcement activities over living resources and marine scientific research, and disputes in respect of which the United Nations Security Council is exercising its assigned functions.Footnote ¹³⁹ Consequently, the coastal State further secures sole discretion over a number of important uses of the EEZ. With an effective declaration under Article 298, the coastal State may argue that disputes of whether military activities or security matters fall under attributed rights or residual rights (and in the latter case, how to attribute such rights) are exempted from the compulsory third-party settlement procedures. It is likely that such an argument would be successful. However, a complication may arise when the exception relates to law enforcement powers of the coastal State, as this may clash with the freedom of navigation of other States.Footnote ¹⁴⁰ The coastal State is given explicit enforcement jurisdiction over living resources in the EEZ and is entitled to board, inspect, arrest and institute judicial proceedings against a suspected foreign vessel.Footnote ¹⁴¹ The exercise of such powers has a direct impact on the freedom of navigation and disputes relating to the interference of freedom of navigation are explicitly included under Article 297. UNCLOS does not provide a direct solution on how to harmonise conflicts between Articles 297 and 298, but it would seem there is support for the view that navigation disputes are included under the compulsory procedures, since the exceptions to law enforcement activities are only optional and should be interpreted narrowly.Footnote ¹⁴²

In order to limit the impact of coastal States’ enforcement jurisdiction over foreign vessels in the EEZ, coastal States are obligated to promptly release arrested vessels and their crews for violations of laws and regulations with regard to fishery or environmental protection upon the posting of reasonable bond or other security.Footnote ¹⁴³ If the detaining State fails to comply with prompt release procedures, the flag State may submit such a dispute to any mutually agreed court or tribunal, or to ITLOS, unless otherwise agreed.Footnote ¹⁴⁴ The court or tribunal will ‘deal only with the question of release, without prejudice to the merits of any case before the appropriate domestic forum against the vessel, its owner or its crew’.Footnote ¹⁴⁵ Although prompt release is an independent procedure, the issue of detention is ‘inevitably linked with the content of the rules and regulations of the coastal State concerning the fisheries in its [EEZ], and the way in which these rules are enforced’.Footnote ¹⁴⁶ This requires that the court or tribunal must exercise ‘restraint’ in examining these interlinked merits to the extent that is necessary for it to reach a decision on the question of release.Footnote ¹⁴⁷

The elaborate system for the settlement of disputes is at the heart of the UNCLOS package deal to provide some assurance that the delicate equilibrium of rights and duties established in the Convention will be respected in practice.Footnote ¹⁴⁸ Within the sui generis EEZ system, where there is no explicit order of priorities between the rights of the coastal State and those of other States, a compulsory dispute settlement scheme entailing binding decisions is ‘an important procedural guarantee for maintaining a proper balance’.Footnote ¹⁴⁹ The dispute settlement procedures as applicable to the EEZ essentially reflect the compromise of power achieved in the substantive provisions of Part V. On the one hand, issues that touch on the interests of all States, namely navigational freedoms and marine environmental protection, are subject to compulsory procedures entailing binding decisions. On the other hand, the establishment of the EEZ regime itself ‘signals a prevalent trend in favour of coastal State authority over the traditional mare liberum system’, which resulted in the exclusion of a range of coastal State discretions from the compulsory third-party processes.Footnote ¹⁵⁰