A Shift From Rights to Responsibilities in the EEZ

Should Coastal States Re-Evaluate Their Commitment to the 1982 United Nations Convention on the Law of the Sea?

Many coastal states rely on the resources of their seas, the adjoining seas and the high seas to supply the basic needs of their people. The historic use of the seas and the effect of zonal claims on these uses are a major factor for these states.

Continental shelf claims have tended to dominate the attention of the coastal states to the detriment of the responsibilities expected of coastal states who have ratified the Law of the Sea Convention (LOSC). A look at the rights and the responsibilities of a coastal state in its exclusive economic zone (EEZ) is pertinent.

EEZ

The EEZ shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured. The benefits to the coastal state of this zone are related to the exploration, preservation and exploitation of all resources, whether mobile or sedentary, renewable or non-renewable. Most of the rights reserved for other states are concerned with either navigation or communications.

For a coastal state to be able to successfully administer an EEZ, the extent of the zone should be established. The outer limits of the zone are calculated to a maximum of 200 nautical miles from the baselines of the coastal state. It is not practical to claim these zones and expect a master of a vessel to know where the outer limits of the zones are if the coordinates of the limits of the EEZ are not provided by the coastal state. The extent of the EEZ should be given due publicity if the coastal state is to be able to exercise its rights and fulfill its responsibilities, and the depiction of any boundary should be such that it is practical for any user.

Chart showing the extent of coastal states’ maritime zones with coordinates of the outer limits.

Under the LOSC, a baseline could be one of the following: the low- water line or the normal baseline, straight baseline, closing line of bays or archipelagic baseline.

Straight lines may be used to close bays and to replace the low- water line as the normal baseline. Lateral and median-line boundaries, between littoral or opposite states, should also be finalised.

(Above) Straight baselines that follow the general direction of the coast around Ireland.

(Right) Equidistant method commonly used for the determination of lateral boundaries.

Enforceable Laws

Laws that are enforceable by the coastal state include those governing pollution, seaworthiness of vessels, local crimes and civil liabilities. To undertake an assessment of the responsibilities within an EEZ, it is necessary to consider some responsibilities in other zones that impact an EEZ.

Resources

Coastal states have the rights to natural resources in the EEZ. The resources that can be found in the zones are varied and include fish, gas, oil and other hydrocarbons.

However, both the sea and the seabed contain far more than the obvious, and mud, clays, oozes, manganese nodules, polymctallic sulphides and energy sources are factors that should be considered. For a coastal state to be aware of these assets, significant research has to be undertaken by a coastal state or on its behalf.

After territorial integrity, the second most important consideration of a coastal state is usually the exploitation and possible depletion of the resources of the adjoining seas. This includes the technological developments that have made it possible for greater use to be made of the resources found in the sea, whether close to a coast or in and under the high seas.

The coastal state is obligated to promote the utilisation of living resources. This infers that the optimum harvest should be made. And, if for some reason, the coastal state is unwilling or unable to achieve this optimum level of harvesting, it should then make some of these stocks available to landlocked states in the region to harvest.

Marine Scientific Research

Marine scientific research is not defined in the LOSC, but can be accepted to mean any type of research survey or investigation undertaken in marine areas. Marine scientific research is necessary for the exploration, exploitation and protection of resources and the environment, particularly the environment in which the resources are found. The research will include bathymetry, oceanology, oceanography, marine geoscience and precise positioning accuracy.

The determination of the existence and extent of resources could be expensive, so the research to undertake and establish this information would have to be prioritised.

In the EEZ, coastal states have sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, and any related marine scientific research.

The LOSC has a number of general provisions which apply. They include that marine scientific research shall be conducted exclusively for peaceful purposes, shall be conducted with appropriate scientific methods and means compatible with this convention, shall not unjustifiably interfere with other legitimate uses of the sea compatible with this convention and shall be duly respected in the course of such use, and shall be conducted in compliance with all relevant regulations adopted in conformity with this convention, including those for the protection and preservation of the marine environment.

Coastal states are also expected to consent to marine scientific research by other states and international organisations providing, certain conditions are met. These include that the research is not related to the exploration or exploitation of the living or non- living resources in the region, and that the research does not involve drilling on the continental shelf, the use of explosives, the use of harmful substances or the construction, operation or use of artificial islands, installations or structures. Information related to projects to be undertaken in an area have to be provided to the coastal state. The information relates to the nature and objective of the project; the methods and means, including the names, tonnage, type and class of vessels and equipment to be used; the precise geographical area; the dates of first arrival or deployment of vessels or equipment and the final departure date; the sponsoring institute (its director and person in charge’s names); and the extent to which the coastal state may participate in the project.

If any of this information is inaccurate or not forthcoming, or if there is any other outstanding information, it could be grounds to deny consent. Other provisions include that the coastal state may designate specific areas where exploration will shortly commence and, therefore, decline consent. The coastal state may also undertake projects with international organisations.

Navigation and Communications

The traditional rights of innocent passage and freedom of navigation has been codified in the LOSC, but there has been a marked increase in the rights of a coastal state in that it is now able to exert its jurisdiction beyond the 12-nautical-mile territorial sea for the protection of its environment and its resources.

The provision of maritime safety information and the requirement that the coastal state has to manage activities, such as the laying of pipelines or the erection of structures on the seabed in all zones, is an important responsibility of a coastal state. The coastal state has the sole right to construct or authorise the construction of installations and artificial islands in its EEZ. It also has exclusive jurisdiction over its own structures and jurisdiction for customs, fiscal, health, safety and immigration over all structures. Due notice must be given of the construction of such installations, and they should have a permanent means of warning mariners of their presence. Safety zones may also be declared around the structures. While shipping is expected to take the necessary steps to avoid the structures, it is beholden on the coastal state that, where possible, these structures are not erected in recognised international sea lanes.

The LOSC provides the right to lay and maintain cables and pipelines in the EEZ. This empowers the coastal state to prevent and control pollution from these pipelines without impeding the laying thereof. In the EEZ, other states laying cables and pipelines may not infringe on the rights of the coastal state.

Archipelagic states are obligated to provide acceptable sea lanes through their archipelagic waters. If an archipelagic state is to enjoy the privileges of its status, it will be obliged to ensure that it in turn provide the required support to the vessels passing through its waters.

Freedom of Navigation

Freedom of navigation is defined as the high seas being open to all nations, and that no state may validly purport to subject any part of them to its sovereignty. Freedom of navigation is passage outside of territorial waters and has always been regarded as a right in international customary law. It imposes no restriction on the vessel except that it should not be engaged in either piracy or slave trading, and the vessel may not participate in research, exploration or exploitation in the EEZ of a coastal state without that state’s permission.

Pollution

The sea is being used, to an evergreater extent, fo\r world transportation, and there is the ever-increasing threat of pollution. Pollution is a major peace-time marine hazard. It can take the form of oil pollution from a maritime casualty, from land- based sources, from nuclear or noxious waste disposal or transportation, or the dumping of material damaging to the environment.

The EOSC defines pollution of the marine environment and dumping as the introduction by man, directly or indirectly, of substances or energy into the marine environment, including estuaries, which result, or is likely to result, in such deleterious effects as harm to living resources and marine life. Other definitions included are hazards to human health, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of quality for use of sea water and reduction of amenities.

Coastal states have traditionally used the seas and oceans for the disposal of wastes. Little thought was given to the possibility that the oceans were incapable of accommodating the waste. The LOSC requires that a coastal state prevents, reduces and controls pollution of the marine environment from land-based pollution, dumping by both local and foreign parties or pollution from the atmosphere. It is also possible for pollution to occur from other sources, such as activities on the seabed, marine scientific research, the introduction of foreign species, seabed mining and the manner of mining waste disposal.

The coastal state must cooperate with the competent international organisations to establish international rules and regulations to prevent collisions at sea and other damage to vessels that could result in pollution. Routing schemes designed to minimise the threat of collisions are encouraged in the LOSC. Collisions or standings could cause oil, noxious or harmful substances to be lost into the sea. Coastal states are also required to prevent pollution from vessels flying their flag other states’ waters in accordance with international conventions.

Sources of Marine Pollution

The pollution that should be prevented in accordance with the LOSC includes the release of toxic, harmful or noxious waste; the pollution from vessels, deliberately or as a result of accidents and collisions; the pollution from installations, structures and devices used for exploration or exploitation; and the pollution from any other installation, structure or device capable of polluting the marine environment.

Pollution from submarine cables and pipelines usually occurs as a result of an accident. A pipeline can be damaged by trawling, anchoring of vessels and oil rigs, seabed mining and other seabed activities. Pipelines are subject to wear and tear, and poor maintenance could also result in pollution occurring.

The coastal state should adopt laws and regulations within its area of jurisdiction to prevent the pollution from artificial islands, any installation or structure erected to explore or exploit marine resources and any other structure erected in the EEZ or on the continental shelf. Dumping is regarded internationally as being different to the pollution that is caused by shipping, as it is an act for which a trip by a vessel may have been specifically arranged. Of particular concern to coastal states is the disposal, by dumping, of radioactive waste and matter. While states have adopted legislation to prevent this type of dumping, and to control the passage of vessels carrying hazardous material, the major concern is still the threat of accidents to vessels transporting the material.

The LOSC article 216 makes provisions for the enforcement of laws relating to dumping in the various zones and areas. It states that the coastal state will be responsible for enforcement in its zones and on its continental shelf, that the flag state will be responsible for enforcement on the aircraft and vessels of its registry, and that any state, in regard to the loading of wastes and other matter in its territory and at its installations, is not obliged to institute proceedings when another state has done so in accordance with article 211.

In the event of a maritime casualty occurring, even beyond the territorial waters of the state, a state may take whatever actions are necessary to prevent the pollution of its zones or coastline. The state is expected to conduct the necessary inspections while the vessels are in port, and to prevent their sailing if it is considered that a risk of pollution exists. Coastal states may require a vessel in transit to provide information on its identity, port of registry and its last and next port of call if there is evidence that it has been responsible for pollution in that state’s territorial waters or EEZ. If the vessel refuses to provide the information, the coastal state has the right to inspect the vessel and, if there is evidence to substantiate the claim, the vessel may be detained and proceedings initiated against it. A coastal state may adopt laws and regulations to prevent, reduce and control pollution of the marine environment through the airspace under their sovereignty.

Where a vessel is considered by the competent officers of a state to be unseaworthy and a possible pollution threat to the interests of the coastal state, it may prevent the vessel from sailing to any destination except a convenient shipyard or repair quay. When the necessary repairs have been affected, the vessel should then be allowed to proceed.

It is possible, therefore, for some coastal states to enjoy the benefits of the resources of a large maritime area, which they may have claimed as an EEZ. At the same time, the coastal state has to assume all the responsibilities related to the area claimed and do everything in its power to protect the resources both for itself and for the international community.

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By RAdm. Neil Guy

Consultant

Cape Town, South Africa

RMm. Neil Guy had led a long career in surveying and international law, and has had sea-going commands. He was a director of the International Hydrographic Bureau in Monaco. At present, Guy is the the coordinator for a maritime project in the western Indian Ocean.

Copyright Compass Publications, Inc. Aug 2005