THE EXCLUSIVE ECONOMIC ZONE

 INTRODUCTION:

Geographers define the sea as a body of saltwater, a definition that considers only the physical characteristics of seawater. In contrast, the legal definition includes other factors. According to international law, different saltwater areas are only considered "the sea" if they are in free and natural communication across the globe.

This communicative space also acts as a reservoir for fish, once considered inexhaustible. Past disputes over maritime law mainly aimed to control this communication for both commercial and strategic purposes.

These concerns have not disappeared but must now be combined with others, spurred by both technological advancements that allow more intensive exploitation of traditional and newly discovered resources and the evolution of international society, leading a majority of states to demand oversight on such exploitation something only a few countries with sufficient technical and financial resources can conduct.

From the 19th century, customary rules were codified and extended through conventions, the first significant one being the Paris Declaration of 1856 on maritime warfare. These rules were later refined, especially during the Second Hague Conference in 1907.

Additionally, since 1945, there has been a rise in the proposal and adoption of international conventions and regulations due to the economic and territorial desires fueled by the intensified exploitation of energy, and especially mineral resources. In 1958, the first United Nations Conference on the Law of the Sea adopted four conventions related to territorial seas, the high seas, fishing and conservation of biological resources on the high seas, and the continental shelf, later supplemented by an optional protocol.

A radical overhaul of maritime law took place in 1967 with the Declaration of Principles Governing the Seabed and Ocean Floor beyond National Jurisdiction Resolution 2749 XXV of December 17, 1970. The third conference met on December 3, 1973, and concluded its work with the signing of the Montego Bay Convention on the Law of the Sea on December 10, 1982.

It would be interesting to study the contribution of this convention, particularly the articles governing the Exclusive Economic Zone EEZ, given the importance of this zone for our country, which actively participated in the development and definitive establishment of what is now known as the Montego Bay Convention.

The global recognition, in the mid-1970s, of the 200 nautical mile Exclusive Economic Zone EEZ is considered one of the most important events in the history of international maritime law. As civilization progressed, states had only controlled a very narrow strip of coastal waters.

I - UNCLOS:

11 - Historical Background:

The concept of freedom of the seas is attributed to the Dutch jurist Hugo Grotius, founder of international law. He introduced the idea that the oceans belong to all states and should be freely accessible to the ships of all countries, without interference, for uses such as navigation and fishing. For self-defense and coastal utility, a territorial zone of 3 to 4 nautical miles was accepted internationally, based on the maximum range of cannons at the time. This legal framework governed relations between states concerning ocean use for the next three and a half centuries.

The push for change, which began to intensify in the mid-20th century, is generally believed to have been sparked by the American presidential proclamations of 1945, known as the "Truman Proclamations." One focused on the continental shelf, declaring the United States’ exclusive right to exploit its natural resources, although the offshore boundary was not defined at that time. The other proclamation announced the United States' intention to establish internationally agreed conservation zones for offshore fish stocks, along with a monitoring concept attributed to coastal states.

Over the centuries, this territorial zone was limited to 3 or 4 nautical miles of territorial waters (or 12 in recent years for some countries). The legal regime of "high seas" and "freedom of the seas" applied to all waters beyond territorial limits. Historically, it was almost overnight that a shift occurred towards a new legal regime in which each coastal state exercised control over a vast area beyond its territorial waters, up to a distance of 200 nautical miles, for economic purposes and personal benefit.

The waters within this 200-mile zone cover nearly 30% of the world’s oceans and seas and contain over 90% of the world's fisheries, amounting to approximately 66 million tons. These waters also include nearly all exploitable underwater oil and gas deposits. After World War II, the concept of the continental shelf, whose outer limits remained undefined, became generally recognized as part of the coastal state’s territory. By the 1970s, the underwater region containing these deposits was already considered part of the adjacent coastal states.

Previously, these waters were part of the high seas, freely navigable under international law, allowing ships to use and exploit them while complying with applicable laws governing their activities. Many people, in the middle of the century, likely assumed that this situation would persist indefinitely, particularly in light of two United Nations Conferences on the Law of the Sea UNCLOS I in 1958 and UNCLOS II in 1960, where the international community failed to agree on extending coastal states' territorial authority globally to even a 12-nautical-mile limit, before the establishment of the Exclusive Economic Zone EEZ.

The concept of freedom of the seas began to erode rapidly from that point, as multiple countries claimed the same rights over resources within their coastal reach, some extending to 200 nautical miles. There was a growing awareness of the concentration of ocean resources both biological and non-biological within a vast area beyond coastal waters, which could be exploited for economic profit. Some argued that these biological resources, mainly found in shallow waters on the continental shelf, should belong to adjacent coastal states, much like the already accepted principle for continental shelf minerals and hydrocarbons. At the same time, it became evident that these biological resources, while renewable if managed well, were just as perishable as non-biological underwater resources without proper management.

Fishing techniques also advanced remarkably since World War II. Gigantic factory trawlers equipped with fish-detecting sonars and increasingly sophisticated fishing equipment roamed the oceans, often thousands of miles from their home ports, exerting unprecedented pressure on fish stocks. This increased global catches, directly impacting regions traditionally dependent on coastal biological resources. The international fisheries management organizations established after the war gained a reputation for inefficacy in reducing catches to sustainable levels due to two primary factors:

• Competition among member states over catch quotas for their fleets.
• A lack of willingness and inability to enforce the agreed limits and regulations.

Ships operating far from the authorities of their flag state and the operators focused solely on maximizing profits from future catches created increasing concerns among coastal countries.

Developing coastal countries were even more worried about losing their food resources and any hope for future prosperity from the exploitation and export of their coastal resources. Eventually, these countries realized the need for sovereign control over all offshore fishing activities for conservation and management purposes. This policy was argued to benefit all states.

Efforts to expand territorial authority over coastal waters for resource exploitation, including both water columns and underwater resources, faced opposition and were entangled with other ocean-related issues. The integrative process initiated by the Truman Proclamations raised concerns in various countries, including the United States, which had initiated this process.

Many countries defended conflicting interests. States with distant-water fishing fleets faced losing traditional access to resources vital to their economies. The United States and Russia, for example, wanted to retain access to distant fish stocks while benefiting from extending their offshore territories rich in fish stocks. Other states, such as Portugal and Spain, relied on distant fisheries in the North Atlantic and off the coast of West Africa rather than their limited coastal resources.

In addition to financial, economic, and other stakes, developing countries realized that developed countries were creating technologies that allowed them to increase offshore exploitation activities for hydrocarbons and minerals far beyond their shores. This exploitation would eventually reach the deep seabed, which, if unclaimed by coastal states and developed-country corporations, would be accessible to all as the "common heritage of mankind." It was evident that the longer seabed exploitation issues remained unresolved, the greater the control developed countries would exert over resources that belonged to developing nations.

Developed countries had their own concerns. Even states seeking to extend their sovereignty over offshore waters and exploit the continental shelf, and beyond, expressed reservations about unchecked coastal boundary expansion. Concerns centered on the potential erosion of the fundamental rule of freedom of navigation, particularly through straits. Lastly, ocean pollution by oil tankers prompted coastal countries to advocate for the right to protect coastal waters and biological resources against potential hazards from these vessels.

By the 1960s, it was widely recognized that the various issues were too interlinked to be resolved in isolation. This realization led to the need for a comprehensive framework of new ocean regulations. The United Nations convened the third United Nations Conference on the Law of the Sea in 1973 to draft this codification. It took the Conference ten years to finalize the 1982 United Nations Convention on the Law of the Sea UNCLOS.

The international acceptance of the EEZ project prompted numerous coastal states worldwide to extend their territorial waters to 200 nautical miles and declare that these waters would be governed by the rules established by the Conference.

12- Contribution:

Since the establishment of the Exclusive Economic Zone (EEZ) by the United Nations Convention on the Law of the Sea in 1982, coastal states have held significant sovereign rights over this maritime area, which extends beyond territorial seas up to 200 nautical miles. These rights cover economic activities related to marine resources fishing, oil, gas, energy production, artificial islands, platforms, marine scientific research and also allow the coastal state to protect the marine environment.

The convention made a substantial contribution to international maritime law by introducing the concept of the Exclusive Economic Zone. It aimed to regulate the exploration and exploitation of resources in seabed areas beyond national jurisdiction. Unlike previous instruments, the convention emphasizes the need to promote and provide developing countries with technical assistance in matters related to the law of the sea.

The worldwide recognition, in the mid-1970s, of the 200 nautical mile Exclusive Economic Zone (EEZ) is considered one of the most significant events in the history of international maritime law. Throughout history, states only had control over a very narrow band of coastal waters.

13- Outstanding Issues

When UNCLOS was adopted and ready to be signed and ratified in 1982, it was welcomed by the international community as a monumental new code governing international relations concerning the oceans. However, two major issues remained unresolved; it was acknowledged that these had not been adequately addressed by the Convention and would likely require extended negotiations in an appropriate setting.

13.1- Exploration and Exploitation of Natural Resources in the Deep Seabed

The global regime envisioned by UNCLOS for this purpose satisfied many states but was deemed unacceptable by most developed countries, including the United States and several Western European countries. These countries, led by the United States, had the financial and technical resources to engage in deep-sea exploration and exploitation. They strongly argued that the seabed regime outlined in UNCLOS should not include provisions protecting or compensating private enterprises capable of resource exploration and exploitation. They also argued that large scale resource exploitation would not be feasible if developed countries were bound by the Convention as it stood. Consequently, negotiations continued, though not in a crisis climate, as deep-sea exploitation was not expected to be economically feasible for many years.

13.2- The Problem of High Seas Fishing:

The absence of a crisis climate did not apply to another significant issue: the high seas fishing of stocks originating within an EEZ. While the EEZ adequately covers many coastal fish stocks globally, it leaves important stocks exposed to the open-access rules governing high seas fishing. These stocks either straddle the EEZ or consist of large migratory fish species that exit the EEZ boundaries. This issue has since become a concern for many states, though still relatively few coastal states.

Although the vulnerability of fish straddling the 200-mile zone and migratory species to high seas fishing was recognized to some extent during UNCLOS negotiations, the extent of this vulnerability was only fully realized after a period of EEZ implementation. During this time, coastal state fishing fleets gradually replaced foreign fleets within established EEZs. Before the EEZ, most coastal species fishing was concentrated within areas well within 200 nautical miles, where fish were abundant, close to facilities like repair and supply ports, crew rest facilities, and storm shelters. When distant fleets found they could achieve satisfactory catches outside the 200 mile zone, particularly of fish that straddle the zone or large migratory species previously caught within the EEZ, it led to:

• Overfishing of key species,
• Further depletion of stocks,
• Increased international conflicts,
• Greater international efforts to address these issues.

Other types of fishing problems persisted after UNCLOS adoption or worsened in more limited situations. Although UNCLOS provisions protected salmon from high seas fishing, salmon still faced competitive pressures from various coastal state fishers as they migrated to their spawning rivers. Despite initial optimism, after coastal states implemented fishing control measures within their waters, the EEZ itself excluding the issue of fish straddling zones and migratory species did not fully meet expectations. In some cases, pressure from foreign fleets to maximize their catches was replaced by coastal state fleet pressures, frustrating conservation efforts. In other cases, coastal states faced various other issues. It is reasonable to assume these were implementation issues rather than inherent problems with the legal structure of the EEZ, which provides a framework within which any coastal state's fisheries manager, given the necessary political authority, commitment, and energy, could create the anticipated benefits of the EEZ.

13.3- Special Case: Right of Pursuit:

The right of pursuit may only be exercised following violations of the coastal state's laws and regulations and in accordance with the status of the Exclusive Economic Zone, as stipulated by the Montego Bay Convention, including safety zones around installations. Pursuit ceases once the pursued vessel enters the territorial sea of the state it belongs to or another state.

Pursuit can only commence once it has been established that the pursued vessel or one of its craft is engaged in illegal activities in the EEZ. Pursuit may only begin after a signal ordering the offending vessel to stop has been issued, either visually or audibly, at a perceivable distance.

The right of pursuit may only be exercised by warships or military aircraft, or by other vessels or aircraft bearing clear external markings indicating they are on public service duty and authorized to do so, per Article 111 of the convention.

II- Exclusive Economic Zone (EEZ)

The EEZ concept is part of a much broader framework, a comprehensive structure for contemporary maritime use. However, virtually all sections of UNCLOS relate to the EEZ.

Part V, titled Exclusive Economic Zone, is the section of UNCLOS that addresses the EEZ. It contains a series of delicately balanced compromises resulting from fifteen years of negotiations, first conducted by the United Nations Seabed Committee and later at the third United Nations Conference on the Law of the Sea. Within the EEZ, or the waters within 200 nautical miles beyond the territorial sea, all states retain certain high seas rights relating to navigation and communications. The coastal state exercises not sovereignty, but sovereign rights over all natural resources. The coastal state also possesses the necessary authority to exercise these rights and protect the environment, including the right to arrest foreign vessels violating its laws under the authority conferred by the Convention.

Part V focuses on biological resources. It provides detailed rules that the coastal state must follow to ensure resource conservation and permit access to vessels from other countries if the coastal state cannot capture the maximum sustainable levels it has set as a safe limit.

Specific regimes apply to different types of resources, including stocks that cross the EEZ boundary and those that cross maritime borders between states. Examples include large migratory fish species e.g., tuna, marine mammals, anadromous species e.g., salmon, catadromous species e.g., eels, and sedentary species e.g., scallops. Part V also includes provisions on the access rights of landlocked and “geographically disadvantaged” countries, coastal state law enforcement, and the delimitation of maritime boundaries between coastal states.

2.1 NOTION:

As a result of an uneven compromise, the concept of the Exclusive Economic Zone (EEZ) largely satisfies the recommendations of coastal states. These states exercise their sovereign rights over economic matters in extensive marine areas adjacent to their territorial seas.

The concept of the EEZ gradually emerged from somewhat confusing national and international practices. It became established as a compromise and a substitute for the idea of extending territorial seas to 200 miles, a notion that major powers rejected. The history of this diplomatic struggle is exemplary, as it reflects all the tensions of modern international society, aiming to achieve better global organization and a fairer economic order.

Part V of the United Nations Convention on the Law of the Sea UNCLOS, held in Montego Bay, indirectly defines the concept of the EEZ through the "special legal regime" that governs it Article 55. This regime applies to waters, seabeds, and their subsoils. Due to state practices, the EEZ concept has acquired customary value. It quickly became widespread and no longer faces objections. In its ruling on February 24, 1982, the International Court of Justice (ICJ) considered the EEZ as part of "modern international law."

2.2 DELIMITATION

Extending up to 200 miles from baseline lines Article 57, the EEZ presents formidable delimitation challenges. The authors of the 1982 convention adopted the rule that EEZ delimitation between adjacent or opposing states should be done by agreement in accordance with international law, following Article 38 of the ICJ Statute, to reach an equitable solution.

2.3 LEGAL REGIME

Developed countries only accepted sacrificing certain fishing resources mainly to prevent excessive extensions of territorial seas and severe restrictions on freedom of navigation. The balance between the navigation regime and the coastal state's sovereign rights over EEZ resources constitutes the uniqueness of this zone’s status. This legal regime is exclusively functional and includes rights and jurisdictional titles for the coastal state, as well as rights and freedoms for other states.

All states enjoy extensive freedoms in the EEZ, as enumerated in Article 58 of the UNCLOS, including freedom of navigation, overflight, and laying cables and pipelines. The coastal state may investigate, inspect, or divert a vessel only as necessary to enforce regulations in specific areas:

• Resource exploitation in the zone (Article 73)
• Environmental protection (Article 220)
• Resource exploration and exploitation

Article 56 of the convention distinguishes the sovereign rights of the coastal state over the EEZ from its jurisdiction, which is exercised according to convention provisions concerning:

• The establishment and use of artificial islands, installations, and structures
• Marine scientific research
• Marine environment protection and preservation

Sovereign rights include: For the purposes of exploration and exploitation, conservation, and management of natural resources, biological or non-biological, of the waters above the seabed, the seabed, and its subsoil, and regarding other activities aimed at economic exploration and exploitation of the Zone, such as energy production from water, currents, and winds.

A major part of Part V addresses fisheries issues. The coastal state independently sets authorized fish catch volumes within its economic zone (Article 61) and regulates fisheries (Article 62). Two main issues arise:

• Access rights for third countries to avoid resource waste
• Fish stock management

To address these issues, Articles 69 and 70 outline measures for landlocked states and geographically disadvantaged states. This reflects the theory of compensatory inequality. Article 62 sets priorities for a coastal state with a resource surplus that considers negotiating with third countries.

Regarding fish stock management, the coastal state must take appropriate measures to prevent over-exploitation (Article 61), possibly in cooperation with interested states and appropriate international organizations .

VI- CONCLUSION:

The United Nations Convention on the Law of the Sea was adopted on April 30, 1982, after more than a decade of negotiations. It has made a significant contribution to international maritime law, setting a generally accepted limit of 12 miles for territorial seas, thereby resolving a long-standing issue. It introduced the concept of the Exclusive Economic Zone, which, according to many, is already part of customary international law. Since then, the EEZ has been the cornerstone of the convention, establishing a balance between the economic interests of coastal states, especially developing states, and the maritime and strategic interests of other states.