Under Secretary-General, Special Representative of the Secretary-General for the Law of the Sea. The opinions expressed in this article are those of the author and do not necessarily represent the views of the United Nations.
"Since the seventeenth century, when the development of seaborne trade and the emergence of powerful maritime nations led to a shift from the notion of closed seas claimed by a few countries to the concept of open seas, the two basic principles of the law of the sea have been that a narrow strip of coastal waters should be under the exclusive sovereignty of the coastal state and that the high seas beyond should be freely accessible to all. These principles were originally intended to satisfy and reconcile the requirements of national security with freedom of trade and navigation. But they were applied to all activities in both areas and ipso facto defined the legal framework within which fishing activities were carried on.
At the Conference on the Law of the Sea, there was only limited support for maintaining the status quo..."
J.E. Carroz, 198211 Carroz, J.E. 1982. The living resources of the sea. In The management of humanity's resources: The Law of the Sea. Workshop 1981 organized by The Hague Academy of International Law and the United Nations University. The Hague, Martinus Nijhoff, pp. 193-207.
The concept of the exclusive economic zone is an essential element of the "package" of compromises and trade-offs that constitutes the 1982 Convention on the Law of the Sea. It is a concept which has received rapid and widespread acceptance in state practice and is thus now considered by some to be part of customary international law. In this article the author traces the evolution of the concept of the exclusive economic zone from its origins to its final form in the Convention, to give an insight into the balance of legal, economic and political interest that was involved in the development of the final text. The article looks first at the historical underpinnings of the concept in the Truman proclamations on the continental shelf and coastal fisheries of 1945, the unilateral declarations of sovereignty by Chile and Peru in 1947 and the declarations by a number of Arab states in 1949. He then traces the development of the idea in Latin America, through the Santiago Declaration of 1952 which first proclaimed 200-miles zones off Chile, Ecuador and Peru, the Montevideo and Lima Declarations of 1970 and the Declaration of Santo Domingo in 1972, which articulated the notion of the patrimonial sea. The article describes the African and Asian contributions to the development of the concept of the exclusive economic zone, focusing on the work of the Asian-African Legal Consultative Committee and the proposals presented by Kenya, the Yaoundé Conclusions of 1972 and the Addis Ababa Declaration of 1973, before moving on to the Kenyan draft articles presented to the Sea-bed Committee in 1972. It then reviews the negotiations at the Third UN Conference on the Law of the Sea on this issue and the various trends apparent in those negotiations.
In the second part of the article, the author concentrates on the aspects of the exclusive economic zone relating to the conservation and management of living resources and the opposing interests of the coastal states and major fishing nations. He reviews a number of proposals put before the Sea-bed Committee in 1972 and 1973 reflecting changes in the balancing of these opposing interests as the fishing nations sought to protect their economic interests and the coastal states to establish their sovereign rights. The article then traces the development and elaboration of the provisions on conservation and management of living resources at the Law of the Sea Conference, through the "Main Trends" paper, the work of the Evensen Group and the Group of 77, to the negotiating texts themselves.
In a third part, the article describes the provisions on the conservation and management of living resources in the exclusive economic zone as they were finally agreed upon in the Convention. The author concludes with some general observations on the nature of the exclusive economic zone, the sovereign rights of coastal states in that zone and the responsibilities they bear for the management of the living resources of the zone.
The concept of the exclusive economic zone is one of the most important pillars of the 1982 Convention on the Law of the Sea. The regime of the exclusive economic zone is perhaps the most complex and multifaceted in the whole Convention. The accommodation of diverse issues contributed substantially to the acceptance of the concept and to the Convention as a whole. The 1982 Convention on the Law of the Sea is often referred to as a package. The metaphor is derived from a decision made during the Third United Nations Conference on the Law of the Sea that the Convention would be adopted in toto, as a "package deal". No single issue would be adopted until all issues were settled. This decision provided an essential mechanism for reconciling the varied interests of the states participating in the Conference. If a state's interests in one issue were not fully satisfied, it could look at the whole package and find other issues where its interests were more fully represented, thereby mitigating the effects of the first. Thus, the Convention became an elaborately-constructed document built on trade-offs, large and small.
The larger package consists of: a twelve-nautical-mile territorial sea; an exclusive economic zone of up to 200 nautical miles in which coastal states have preeminent economic rights and which obviates the need for a territorial sea of 200 nautical miles claimed by some states; extension of the continental shelf regime to the margin, with revenue-sharing obligations beyond the exclusive economic zone; a regime for transit passage through straits used for international navigation and for archipelagic sea-lanes passage; guaranteed access to and from the sea for land-locked states; a regime for the administration and development of the common heritage resources of the international sea-bed area; protection and preservation of the marine environment; and adequate mechanisms for settlement of disputes concerning the interpretation and application of the provisions of the Convention.
Within this larger package are many smaller packages of which the exclusive economic zone is one of the most interesting examples. The provisions contained in articles 55 and 752 reflect an array of interests: the sovereign rights of coastal states to manage the zone in good faith; the regard for the economic interests of third states; regulation of certain activities in the zone, such as marine scientific research, protection and preservation of the marine environment, and the establishment and use of artificial islands, installations and structures; freedom of navigation and overflight; the freedom to lay submarine cables and pipelines; military and strategic uses of the zone; and the issue of residual rights in the zone.
2 The Law of the Sea, United Nations Convention on the Law of the Sea with Index and Final Act of the Third United Nations Conference on the Law of the Sea, United Nations Sales No. E.83.V.5 (UN: New York, 1983).
As of December 1986, out of 142 coastal states at least 70 states have proclaimed exclusive economic zones of 200 miles and about 20 others have established exclusive fishing zones of 200 miles. The rapid and widespread acceptance of the economic zone concept as reflected in national legislation indicates that it has become a permanent feature of modern international law of the sea. What was once a revolutionary idea with few supporters is now considered by some to be a part of customary international law.
Ultimately, one must look at the whole package to understand the mini-packages and why some states would ostensibly "give-up" certain traditional rights that for decades had worked in their favour. In order to appreciate fully the balance of the legal, political and economic interests involved in the negotiations, it is useful to look at the historical context of those interests. This article traces the development of the concept of the exclusive economic zone to its final form in the Convention.
Part V of the United Nations Convention on the Law of the Sea establishes the legal regime of the exclusive economic zone. Article 55 creates the legal regime and distinguishes it from the territorial sea: "The exclusive economic zone is an area beyond and adjacent to the territorial sea, subject to the specific legal regime established in this Part, under which the rights and jurisdiction of the coastal State and the rights and freedoms of other States are governed by the relevant provisions of this Convention." 3
HISTORICAL BACKGROUND OF THE EXCLUSIVE ECONOMIC ZONE CONCEPT
The first important assertion of exclusive jurisdiction over marine resources beyond the territorial sea was made by the United States of America in the Truman Proclamation of 28 September 1945 on the continental shelf.4 The Proclamation states that "having concern for the urgency of conserving and prudently utilizing its natural resources, the Government of the United States regards the natural resources of the subsoil and sea-bed of the continental shelf beneath the high seas but contiguous to the coasts of the United States as appertaining to the United States, subject to its jurisdiction and control". Concurrently, a second Proclamation5 was issued with respect to coastal fisheries. This Proclamation states:
"In view of the pressing need for conservation and protection of fishery resources, the Government of the United States regards it as proper to establish conservation zones in those 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. Where such activities have been or shall hereafter be developed and maintained by its nationals alone, the United States regards it as proper to establish explicitly bounded conservation zones in which fishing activities shall be subject to the regulation and control of the United States."
4 An earlier document, "The Submarine Areas of the Gulf of Paria (Annexation) Order" was issued in 1942 by the United Kingdom. It appropriated the sea-bed area of the Gulf of Paria and maintained freedom of navigation. However, the Truman Proclamation contained a rationale for the continental shelf and must be considered to be the most important, if not the first, legal instrument dealing with the subject.
Proclamation No. 2667, "Policy of the United States with Respect to the Natural Resources of the Subsoil and Sea-Bed of the Continental Shelf", 28 September 1945, 10 Fed. Reg. 12303; XIII Bulletin, Dept. of State, No. 327, 30 September 1945, p. 485.
5 "Proclamation No. 2668. Policy of the United States with Respect to Coastal Fisheries in Certain Areas of the High Seas". 28 September 1945, 10 Fed. Reg. 12304.
In both Truman Proclamations, the freedom of navigation was maintained.
UNILATERAL DECLARATIONS OF SOVEREIGNITY6
6 For additional examples of unilateral declarations and bilateral agreements asserting rights in submarine areas during the 1940s, see Lauterpacht, H. 1950. Sovereignty over Submarine Areas. British Yearbook of International Law, London, Oxford Univ. Press. (1951): 379-383.
Chile and Peru. While some of the concepts expressed in the Truman Proclamation found their way into the Convention, the true parents of the exclusive economic zone concept were certain Latin American states. In 1947, the declaration made by the President of Chile on 23 June7 and Decree 781 of 1 August8 by the Government of Peru established maritime zones of 200 miles. The Chilean declaration proclaimed national "sovereignty over submarine areas, regardless of their size or depth, as well as over the adjacent seas extending as far as necessary to reserve, protect, maintain, and utilize natural resources and wealth". It further established the demarcation of "protection zones for whaling and deep sea fishery" to extend to 200 nautical miles from the coasts of Chilean territory.
7 Presidential Declaration Concerning Continental Shelf of 23 June 1947, El Mercurio, Santiago de Chile, 29 June 1947.
8 Presidential Decree No. 781 of 1 August 1947, El Peruano: Diario Oficial. Vol. 107, No. 1983, 11 August 1947.
The source of the "mystical" 200-mile limit has recently been traced by Armanet9. Although the motivation for the establishment of the zone was economic, Armanet suggests that the legal precedent was derived from a map in a magazine article discussing the Panama Declaration of 1939 in which the United Kingdom and the United States agreed to establish a zone of security and neutrality around the American continents in order to prevent the resupplying of Axis ships in South American ports. The map showed the width of the neutrality zone off the Chilean coast to be about 200 miles. This became the basis for the 200-mile limit. In both the Chilean declaration and the Peruvian decree, freedom of navigation was maintained.
9 Armanet, United Nations Conference on the Law of the Sea: The 1974 Caracas Session. AJIL, Vol. 69.
Arab states. The Truman Proclamations had an effect not only in Latin America, but also among certain Arab states. A succession of unilateral declarations were adopted by ten Arab States and emirates within a two-month period in 194910.
10 The dates of adoption of the declarations are as follows: Saudi Arabia, 28 May 1949; Bahrain, 5 June 1949; Qatar, 8 June 1949; Abu Dhabi. 10 June 1949: Kuwait, 12 June 1949; Dubai, 14 June 1949: Sharjah, 16 June 1949; Ras al Khaimah, 17 June 1949; Umm al Qaiwain. 20 June 1949; Ajman, 20 June 1949. From: Dahak, D., 1986. Les Etats Arabes et le Droit de la Mer, Tome 1. Casablanca, Les Editions Maghrébines, p. 123 (In French).
The declarations proclaimed sovereignty particularly over the petroleum resources on the continental shelf; they had in common the following aspects:
- jurisdiction over the sea-bed and subsoil;
- an affirmation of the regime of the high seas, the freedoms of navigation and overflight;
- the use of the expression "submerged lands" rather than "continental shelf"; and
- delimitation effected on the basis of equitable principles.11
11 Ibid., pp. 123-130
Thus, among the above states, there was consensus as early as 1949 on the principle of sovereignty over the natural resources on the "continental shelf".
THE LATIN AMERICAN PERSPECTIVE
The Santiago Declaration. The first international instrument to proclaim a 200-mile limit came into being five years later on 18 August 1952.12 The Santiago Declaration was signed by three Latin American countries that border the South Pacific: Chile, Ecuador and Peru. The Declaration reflects the main driving force behind it which was the desire of those states to develop the resources of their coastal waters. It asserts that "owing to the geological and biological factors affecting the existence, conservation and development of the marine fauna and flora of the waters adjacent to the coasts of the declarant countries, the former extent of the territorial sea and contiguous zone is insufficient to permit of the conservation, development and use of those resources, to which the coastal countries are entitled". Therefore, the three governments "proclaim as a principle of their international maritime policy that each of them possesses sole sovereignty and jurisdiction over the area of sea adjacent to the coast of its own country and extending not less than 200 nautical miles from the said coast". The Declaration also provided for sole sovereignty and jurisdiction over the sea floor and subsoil and maintained the principle of innocent passage through the zone but not, as in the Chilean and Peruvian legislation, freedom of navigation.
12 Declaration on the Maritime Zone. United Nations Legislative Series, ST/LEG/SER.B/6 (United Nations, New York, 1957), pp. 723-724.
At the first and second United Nations Conferences on the Law of the Sea held in Geneva in 1958 and 1960, the principles embodied in the Santiago Declarations garnered little support and left Chile, Ecuador and Peru in an isolated position. However, if states were unwilling to support those ideas in an international political forum, they were not as hesitant at home. Over the decade of the 1960s several other Latin American states established 200-mile maritime zones. By 1970, when the United Nations General Assembly adopted Resolution 2750 (XV) which provided the mandate for the Committee on the Peaceful Uses of the Sea-Bed and the Ocean Floor beyond the Limits of National Jurisdiction to act as the preparatory body for the Third United Nations Conference on the Law of the Sea, nine Latin American states had declared sovereignty and jurisdiction over all waters within 200 miles of their coasts. These states were: Ecuador, Panama, Brazil, Chile, Peru, El Salvador, Argentina and Nicaragua. Although the proclamation of these countries differed, the purpose of establishing a legal framework under which the state conserved and exploited the natural resources within the waters adjacent to its coast was common to all.
The Montevideo and Lima Declarations. The position of the Latin American states was somewhat solidified in two international agreements signed in 1970: the Montevideo Declaration on the Law of the Sea13 and the Declaration of Latin American States on the Law of the Sea (the Lima Declaration)14.
13 The Montevideo Declaration on the Law of the Sea of 8 May 1970. In Lay, S.H., Churchill, R. Nordquist, M., eds. New directions in the Law of the Sea, Documents, Vol. I, (Oceana: Dobbs Ferry, New York, 1973), pp. 235-236.
14 The Declaration of Latin American States on the Law of the Sea (The Lima Declaration) of 8 August 1970. Ibid., pp. 237-239.
The Montevideo Declaration came about as the result of a request by the Secretary-General of the United Nations to states to present their views regarding the convening of a new United Nations Conference on the Law of the Sea. The twenty-fourth Session of the General Assembly, in Resolution 2574A (15 December 1969), recommended that a broad survey be made concerning revision of the regimes of the high seas, the continental shelf, the territorial sea, the contiguous zone, conservation of the living resources of the high seas, and particularly, an internationally-accepted definition of the area beyond the limits of national jurisdiction.
As a result, the Government of Uruguay held, in Montevideo, a meeting with the other Latin American states that had declared sovereignty over waters within a 200-mile limit, for the purpose of coordinating their position. The nine previously-mentioned Latin American states met and approved the Montevideo Declaration.
The Montevideo Declaration contains, inter alia, two basic principles:
· The right of coastal states to avail themselves of the national resources of the sea adjacent to their coasts and the sea-bed and subsoil thereof in order to promote the maximum development of their economies and to raise the standard of living of their peoples; and
· The right to establish the limits of their maritime sovereignty and jurisdiction in accordance with their geographical characteristics and with the factors governing the existence of marine resources and the need for their rational utilization.
The Declaration also maintained freedom of navigation and overflight by ships and aircraft of all nations in areas under their maritime sovereignty and jurisdiction.
During the Montevideo meeting, Peru proposed a second meeting of all Latin American states to be held in Lima in August 1970. Twenty states attended the Lima meeting and the resulting Declaration was approved by fourteen states (the nine signatories of the Montevideo Declaration plus Colombia, the Dominican Republic, Guatemala, Honduras and Mexico).
The Lima Declaration reiterates the principles of the Montevideo Declaration with two additional concepts included:
· the right of the coastal state to prevent contamination of the waters and other dangerous and harmful effects that may result from the use, exploration or exploitation of the area adjacent to its coast; and
· the right of the coastal state to authorize, supervise and participate in all scientific research activities that may be carried out in the maritime zone, subject to its sovereignty and jurisdiction, and to be informed of the findings and the results or such research.
Thus, by 1970, a majority of Latin American states had accepted a generally-defined concept of resource jurisdiction over an extended area of coastal sea. The limits of the zone and the exact nature of the zone were still to be given precision, but the basic elements were clearly apparent. Rooted in economic interests, the Latin American coastal states had asserted sovereignty over maritime areas vastly greater than any previously claimed.
There were also indications at the Lima meeting of what would eventually become an important issue during the Third United Nations Conference on the Law of the Sea - accommodation of the interests of land-locked states. Bolivia and Paraguay cast negative votes in protest at the failure to provide for geographically disadvantaged states.
The Declaration of Santo Domingo. The Declaration of Santo Domingo of 9 June 197215 is one of the immediate precursors of the exclusive economic zone. A subregional conference, "The Special Conference of the Caribbean Countries on Problems of the Sea", was attended by 15 Caribbean states: Barbados, Colombia, Costa Rica, Dominican Republic, Guatemala, Haiti, Honduras, Jamaica, Mexico, Nicaragua, Panama, Trinidad and Tobago and Venezuela. El Salvador and Guyana attended as observers. It was the Santo Domingo Declaration that brought the concept of the patrimonial sea into focus. The section entitled "Patrimonial Sea" repeated some elements previously stated in the Montevideo and Lima Declarations, but was much more precise about making a distinction between the territorial sea and the patrimonial sea. The patrimonial sea was described as follows:
· The coastal state has sovereign rights over the renewable and non-renewable natural resources which are found in the waters, in the sea-bed and in the subsoil of an area adjacent to the territorial sea called patrimonial sea.
· The coastal state has the duty to promote, and the right to regulate, the conduct of scientific research within the patrimonial sea, as well as the right to adopt the necessary measures to prevent marine pollution and to ensure its sovereignty over the resources of the area.
· The breadth of this zone should be the subject of an international agreement, preferably of a world-wide scope. The whole of the area of both the territorial sea and the patrimonial sea, taking into account geographic circumstances, should not exceed a maximum of 200 nautical miles.
· The delimitation of this zone between two or more states should be carried out in accordance with the peaceful procedures stipulated in the Charter of the United Nations.
· In this zone, ships and aircraft of all states, whether coastal state or not, should enjoy the right of freedom of navigation and overflight with no restrictions, other than those resulting from the exercise by the coastal state of its rights within the area. Subject only to these limitations, there will also be freedom for laying of submarine cables and pipelines.15 The Declaration of Santo Domingo of 9 June 1972. Ibid., pp. 247-249.
In the patrimonial sea concept, the main emphasis was placed on economic jurisdiction. The coastal state has "sovereign rights over the renewable and non-renewable resources", not over the patrimonial sea itself. In making this distinction, however, a rift was created among the Latin American states dividing them into two groups: the territorialists and the patrimonialists.
One additional legislative contribution to the evolution of the exclusive economic zone concept in the Latin American region was the Resolution of 9 February 1973 adopted by the Inter-American Juridical Committee16. The document is interesting in several respects, not the least of which is that it appears to be an effort to close the gap between the territorialists and the patrimonialists. The result, however, is a return to the imprecise language with regard to sovereignty and jurisdiction similar to that of the Montevideo and Lima Declarations. The Resolution states: "... sovereignty or jurisdiction of a coastal State extends beyond its territory and its internal waters to an area of sea adjacent to its coasts to a maximum distance of 200 nautical miles, as well as to the airspace above and the bed and subsoil of that sea". It includes other features that appeared in the Santo Domingo Declaration such as the right of the coastal state to make regulations governing scientific research activities and for the purpose of preventing, reducing or eliminating the damage of pollution to the marine environment. A last significant element of the Resolution was the inclusion of a statement on the position of land-locked states, granting them participation in the exploitation of living resources within the zone that extends from the twelve-mile limit to the limit of 200 nautical miles. Among other participate in all scientific research activities ultimately resolved in the United Nations Conference, the question of the rights of land-locked states was one of the most important. The inclusion in the Resolution of text on this issue further supports the attempt to reconcile the different points of view among the Latin American states.
16 12 ILM, 1972, pp. 711-713.
THE AFRICAN AND ASIAN PERSPECTIVE
The Asian-African Legal Consultative Committee. The Latin American states were not working in isolation in the early 1970s on the development of new principles governing the Law of the Sea. At the Montevideo meeting, measures were taken to make contact with countries in Asia and Africa. Simultaneously, the Asian-African Legal Consultative Committee (AALCC) agreed at its 1970 meeting to include the subject of the Law of the Sea on the agenda of its 1971 meeting in Colombo. The Colombo meeting was attended by observers from Argentina, Brazil, Ecuador and Peru. The report of the Subcommittee on the Law of the Sea states that "the Sub-Committee, with the exception of a very few delegations, considered that at the present time any State would be entitled, under international law, to claim a territorial sea of twelve miles from the appropriate baseline. The majority of delegations indicated that a State had the right to economic exploitation of the resources in the waters adjacent to the territorial sea in a zone, the maximum breadth of which should be subject to negotiation. Most delegations felt able to accept twelve miles as the breadth of the territorial sea, while supporting, in principle, the right of a coastal State to claim exclusive jurisdiction over an adjacent zone for economic purposes".17 At the Colombo session, the AALCC set up a Working Group, in addition to the Sub-Committee, composed of delegates from Ceylon, India, Indonesia, Japan, Kenya and Malaysia. The importance of this group, and particularly the role of Kenya, became apparent at the thirteenth Session of the AALCC in 1972.
17 Report of the Sub-Committee on the Law of the Sea by the Asian-African Consultative Committee, Colombo, 18-27 January 1971.
At this meeting, a working paper prepared by Kenya, was presented on "The Exclusive Economic Zone Concept". The paper attempted to define the important features of the new concept in terms of the rights and obligations of both the coastal state and the international community. The rationale for the emergence of the exclusive economic zone concept was clearly stated: the "present regime of the high seas benefits only the developed countries...".18 The developed countries, because of their advanced technologies, were able to engage in distant-water fishing activities wherever and whenever they chose to do so. At the same time, developing countries were often incapable of exploiting the resources in waters closely adjacent to their own coasts much less in waters great distances away. Therefore, a tendency had grown among developing countries to extend their territorial seas up to 200 miles in an effort to compensate for their technologically disadvantaged position. This tendency, in turn, created a concern among the major maritime nations that extensions of sovereignty would have a negative effect on traditional freedoms of navigation and overflight. The exclusive economic zone concept was put forward as a compromise solution to these conflicting concerns.
18 Report of The Thirteenth Session of the Asian-African Consultative Committee, Lagos, 18-25 January 1972.
The working paper contained ideas which would be submitted by Kenya to the Sea-Bed Committee later that year in the form of draft articles. The draft articles were based on an approach which gave the coastal state sovereign rights and the exercise of exclusive jurisdiction over living and non-living resources and over the prevention and control of pollution in an economic zone which would not exceed 200 nautical miles. The freedoms of navigation, overflight and the laying of submarine cables and pipelines were recognized as well as the possibility of access by other states to the resources of the zone.
The Yaoundé Conclusions. In June of 1972, almost concurrently with the Santo Domingo meeting of Caribbean states, 16 African states met at a regional seminar on the Law of the Sea in Yaoundé, Cameroon. The "Conclusions"19 adopted unanimously by the 16 participating states are comparable to the proposals of the Lima Declaration. Recommendation I states that "African States have equally the right to establish beyond the territorial sea, an economic zone over which they will have exclusive jurisdiction and national exploitation of the living resources of the sea and their conservation for the primary benefit of their people and their respective economies, and for the purpose of the prevention and control of pollution". With regard to biological resources of the sea, it recommends that African states extend "sovereignty over all the resources of the high seas adjacent to their territorial sea within an economic zone to be established, and which will include at least the continental shelf". The recommendation did not define the exact breadth of the zone because of disagreement between coastal and land-locked states. The Yaoundé Conclusions are significant because they were the first comprehensive effort by the African states to put together a regional position.
19 Conclusions in the General Report of the African States Regional Seminar on the Law of the Sea, held at Yaoundé, 20-30 June 1972. United Nations Legislative Series, ST/LEG/SER.B/16, p. 601.
The Addis Ababa Declaration. The position of the African states was given further authority with the adoption of the Declaration of the Organization of African Unity on the "Issues of the Law of the Sea" of 2 July 1973.20 Familiar principles were reiterated in the Declaration similar to the Kenyan proposals in the AALCC. One modification to the Kenyan proposals was the inclusion of scientific research as being subject to the jurisdiction of the coastal state. Other principles included: the right of each coastal state to establish an exclusive economic zone beyond its territorial sea, the limits of which would not exceed 200 nautical miles, measured from the baselines establishing the territorial sea; permanent sovereignty over all the living and mineral resources in that zone; the right of the coastal state to manage that zone without undue interference with other legitimate uses of the sea, such as freedom of navigation, overflight and laying of cables and pipelines; the recognition of the right of land-locked and other disadvantaged countries to share in the exploitation of living resources of neighbouring economic zones on the same basis as the nationals of the coastal states.
20 UNCLOSOR, Vol. III, p. 63-65.
The apparent unanimity among the African states, as evidenced by widespread support for the above-mentioned documents, should not obscure the fact that with regard to the exclusive economic zone, just as with the Latin American states, different positions were taken on the nature of the zone. These differences would become more apparent in the debates held in the Third United Nations Conference on the Law of the Sea. The general concept, however, had been firmly established and it was left to the international community as a whole to define the zone precisely and to make it universally acceptable.
THE SEA-BED COMMITTEE 1971-73
Pursuant to Resolution 2340 (XXII) of 18 December 1967,21 the United Nations established an "Ad Hoc Committee to Study the Peaceful Uses of the Sea-Bed and Ocean Floor beyond the Limits of National Jurisdiction" consisting of 35 states. The Committee recommended the establishment of a Standing Committee, and by Resolution 2467 (XXIII) of 21 December 196822, a permanent "Committee on the Peaceful Uses of the Sea-Bed and the Ocean Floor beyond the Limits of National Jurisdiction", consisting of 42 states was established. The next significant legislative action took place in 1970 at the Twenty-fifth Session of the General Assembly with the adoption of two resolutions:23 Resolution 2749 (XXV) containing the "Declaration of Principles Governing the Sea-Bed and the Ocean Floor, and the Subsoil Thereof, beyond the Limits of National Jurisdiction" and Resolution 2750C (XXV) which called for the convening of a new Conference on the Law of the Sea in 1973.
21 GAOR/RES, Twenty-Second Session, Supp. No. 16 (A/6716), pp. 14-15.
22 GAOR/RES, Twenty-Third Session, Supp. No 18 (A/7218) p. 15.
23 GAOR/RES, Twenty-Fifth Session, Supp. No. 28 (A/8028) pp. 24, 260
The Sea-Bed Committee held its first session in March 1971 and decided, in preparation for the future Conference, to delegate to its Sub-Committee II the task of preparing a comprehensive list of subjects and issues relating to the Law of the Sea, including those concerning the regimes of the high seas, the continental shelf, the territorial sea (including its breadth and the question of international straits), the contiguous zone, fishing and conservation of the living resources of the high seas (including the question of preferential rights of coastal states), and to prepare draft articles on those topics.
As we have seen from the brief history of the exclusive economic zone concept outlined above, discussions in regional fora were taking place at the same time as the Sea-Bed Committee was doing its work.
Thus, in the Sea-Bed Committee in the years 1971-73, those same ideas evolving outside the United Nations were evident even though initially no formal proposals were made.
In 1972, the Kenyan delegation submitted "Draft Articles on Exclusive Economic Concept".24 The Kenyan proposals reflected a concept of the zone very similar to that of the patrimonial sea. The zone was primarily functional rather than territorial. The draft articles stated that "all States have the right to establish an economic zone beyond the territorial sea for the primary benefit of their peoples and their respective economies in which they shall exercise sovereign rights over natural resources for the purpose of exploration and exploitation". Further, "... the State may establish special regulations within its economic zone for: (a) Exclusive exploration and exploitation of non-renewable resources; (b) Exclusive or preferential exploitation of renewable resources; (c) Protection and conservation of the renewable resources; (d) Control, prevention and elimination of pollution of the marine environment; and (e) Scientific research".
24 GAOR, Sea-Bed Comm., Twenty-Seventh Session, Supp. No. 21 (A/8721), pp. 180-182.
The coastal state would permit exploitation of living resources within the zone by "neighbouring developing land-locked, near land-locked and countries with a small shelf". The limits of the zone would be fixed but, in any case, would not exceed 200 nautical miles and the establishment of the zone would be without prejudice to the exercise of the freedoms of navigation, overflight and the laying of submarine cables and pipelines.
Up to this point, this article has described events taking place solely in the developing countries. The economic zone concept was clearly of developing country origin, initiated by a few Latin American states, refined by Caribbean states and defined explicitly by the African states. In this evolution, the coastal states began to accommodate the interests of the group of land-locked states. The third important group of states was the distant-water fishing states. This group began to make itself heard in the Sea-Bed Committee through documentation submitted to Subcommittee II. One immediately notices that the preoccupation in the texts of the developed countries was with fishing, since the 1958 Convention on the Continental Shelf had already dealt with non-living resources. Underlying the preoccupation with fishing was the matter of ensuring that the strategic use of the zone was in no way curtailed and that the traditional freedoms of the high seas for non-resource related activities were preserved. The issue in the Sea-Bed Committee quickly became clear: would the rights of the coastal states in the economic zone be exclusive sovereign rights or preferential fishing rights. Preferential rights were favoured by states wanting to avoid establishment of the zone. Those documents supporting preferential rights are marked by the introduction into the debate of detailed provisions which would limit the powers of the coastal states in specific ways through conservation principles and would establish special regimes for certain species of fish. The debate continued through the 1973 session, setting the stage for the Third United Nations Conference on the Law of the Sea in 1974.
THE THIRD UNITED NATIONS CONFERENCE ON THE LAW OF THE SEA
The Third United Nations Conference on the Law of the Sea began its work on 3 December 1973. Three main committees were established. Maritime areas subject to national jurisdiction and the high seas, including the territorial sea, continental shelf, the exclusive economic zone and the regime of straits used for international navigation were assigned to the Second Committee. At the second session in the summer of 1974, the Second Committee produced the "Main Trends" paper, the purpose of which was to reflect the main trends which had emerged from the proposals submitted either to the Sea-Bed Committee or to the Conference25.
25 UNCLOSOR, Vol. III, pp. 107-142.
The Uruguayan delegate, Lupinacci, has described the three basic trends that had taken form by the 1974 session of the Conference. He states: "The territorialist trend, starting from the postulate of the 200-mile territorial seas, gradually accepted restrictions to the jurisdiction of coastal states, beyond the first 12 miles, until it reached the point of recognizing, in the remaining 188-mile belt, the freedoms of sovereignty for the sake of international cooperation..."
Another trend was at first called preferentialist, because it recognized only preferential rights of the coastal states beyond the territorial sea in respect of the exploitation of living resources; its point of departure was, therefore, the recognition of certain special rights or a projection of specialized powers of the coastal States in areas of the high seas contiguous to the territorial waters... The final trend was zonist within which the patrimonialist attitude was subsumed and which presupposed the creation of a new juridical institution to regulate a maritime space possessing characteristics of its own and therefore not forming part either of the territorial waters or of the high seas.26
26 Lupinacci, J.C. 1984, The legal status of the Exclusive Economic Zone in the 1982 Convention on the Law of the Sea. In Orrego Vicuña, F., ed. The exclusive economic zone, a Latin American perspective. Boulder, Colorado. Westview Press.
As we have seen, the evolution of the exclusive economic zone concept took place in the developing world. The effort to protect the living resources of nearby coastal waters resulted in a concept which defined the rights of the coastal state. The reaction of the major fishing nations was to impose obligations through resource management schemes, rather than to challenge the concept itself. In the following section, we shall examine how those compromise solutions were reached by examining the evolution of the fisheries regime.
THE CONSERVATION AND MANAGEMENT OF LIVING RESOURCES
It is no accident that seven of the 21 articles of Part V of the Convention deal with living resources. Faced with the prospect of coastal states cutting off or severely limiting access to fish, the major fishing nations began to make proposals that would limit the powers of the coastal state. These proposals were introduced as early as 1971 in the Sea-Bed Committee. The United States of America in a set of draft fisheries articles,27 favoured a "species" approach to coastal state jurisdiction over fisheries. Also proposed was a kind of "trusteeship zone" which would be under coastal state supervision. The Union of Soviet Socialist Republics, however, favoured "preferential rights" over fisheries for the coastal state.28
27 GAOR, Sea-Bed Comm., Twenty-Sixth Session, Supp. No. 21, (A/8421), pp. 241-245. cf. "Revised Draft Fisheries Article", submitted by the United States, GAOR, Sea-Bed Comm., Twenty-Seventh Session, Supp. No. 21 (A/8721), pp. 175-179.
28 GAOR, Sea-Bed Comm., Twenty-Seventh Session, Supp. No. 21 (A/8721), pp. 158-161.
The United States, in its draft fisheries articles, suggested several principles which eventually found a home in the final Convention provisions. Among the conservation principles put forth was that "allowable catch and other conservation measures shall be established which are designed, on the basis of the best evidence available, to maintain or restore the maximum sustainable yield, taking into account relevant environmental and economic factors". Under this scheme, the coastal state could allocate to itself whatever percentage it was capable of harvesting of the allowable catch of a given fish stock in the waters adjacent to its territorial sea. The articles also distinguished between coastal and anadromous species and highly migratory species. The above scheme for management of fisheries resources is an important component of the compromise solutions eventually reached between the territorialists and the major fishing nations.
It is useful to look at various documents submitted by the fishing nations to the Sea-Bed Committee in 1972; in these documents can be traced the sources of the duties and obligations imposed on the coastal states in the 1982 Convention. Several documents are of particular interest because they contain suggestions that reflect variations in the positions taken by the fishing nations in an effort to protect their economic interests. Brief summaries of these documents follow.
(a) Draft articles on fishing by the USSR.29 The Soviet draft articles reflect an approach based on preferential rights granted to the coastal state with regard to fishing in the areas of the high seas adjacent to the coasts of developing countries. In the "Explanatory Note" accompanying the USSR document, a rationale for the proposed allocation of stocks is given as follows:
"Of course, in solving the problem of fishing the legitimate interests of the peoples of other States to use the fishery resources of the world oceans should not be overlooked. It is our view that, should the stocks of fish not taken by a coastal State perish without being used by other States, it would be an unjustifiable waste of valuable food resources so necessary to mankind. The Soviet draft basic provisions for the article on fishing provide that the part of the stocks of fish which is not reserved by a developing coastal State can be taken by other States without detriment to the reproduction of the stocks of fish."
Thus, the argument that many developing coastal states would not be able to utilize the stocks fully and, consequently, would not be able to benefit fully from the establishment of the economic zone, was made early on in the Sea-Bed Committee deliberations. This principle of optimum utilization, along with maximum sustainable yield and allowable catch, would become the subject of negotiation as the work progressed in the Conference.
(b) Working paper by Canada.30 Canada outlined a functional approach to fisheries management which viewed such management as forming part of a broader concept of management of the marine environment as a whole. The paper states that it is necessary to differentiate between various groups of species with a view to identifying the types of regime that would be most appropriate in each case. Four categories were identified: sedentary species, coastal species, anadromous species and wide-ranging species. The paper also stressed the special interest in and responsibility for the conservation of the living resources of the sea adjacent to the coastal state's shore and that it should have the authority required to manage those resources in a manner consistent with its special interest and responsibility, as well as preferential rights in the harvest of such resources.
30 Ibid., pp. 164-174.
On the subject of allocation, it was pointed out that if an appropriate formula were not worked out, some states would be able to compete more effectively than others and, in extreme cases, one or two participants would be able to appropriate most of the catch to themselves.
Another important subject was that of access. The Canadian paper proposed controlled access to a fishery to ensure that no more than the maximum biological yield would be taken. The basic objective was that fisheries would be exploited so that the difference between value of the yield and cost of obtaining the yield is at a minimum. This is achieved by fishing at or slightly below the maximum sustainable yield.
(c) Revised draft fisheries articles by the United States.31 The US draft fisheries articles have already been briefly mentioned above. In addition to the proposals already described, Article V on "Utilization and Allocation" specified the basic principles for coastal and anadromous species: the coastal state may reserve to its flag vessels that portion of the allowable catch they can harvest; the coastal states shall provide access to other states, under reasonable conditions, to that portion of the resources not fully utilized by its vessels on the basis of the following priorities:
· States that have traditionally fished for a resource (subject to certain conditions);
· Other states in the region, particularly land-locked states; and
· All states, without discrimination among them.
31 Ibid., pp. 175-179.
(d) Working paper by Australia and New Zealand.32 The Australian-New Zealand paper on "Principles for Fisheries Regime" contained many of the same ideas presented in previous proposals. The paper proposed the establishment of a coastal fishery resources zone where the coastal state would have exclusive jurisdiction over the living resources of the sea in an adequately wide zone of the high seas adjacent to its territorial sea. It was noted that the fishery zone proposed could be incorporated into an economic zone concept covering all resources, living and nonliving. The proposal further included, inter alia, coastal state responsibility: to provide proper management and utilization of the living resources within its zone, using specific methods for regulation such as licensing, limitation on gear, size of fish, etc.; to determine the total allowable catch; and to allow access to foreign fishing up to the level of allowable catch on an equitable basis and without discrimination. The working paper has been seen as an effort to reconcile the territorialists and the preferentialists.
32 Ibid., pp. 183-187.
(e) Proposals by Japan.33 The "Proposals for a regime of fisheries on the high seas" set forth a list of preferential rights for coastal states, particularly developing coastal states, in relation to distant-water fishing of other states in areas adjacent to the territorial sea. With regard to allocation of resources, the document reads:
"Preferential rights shall entitle a developing coastal State annually to an allocation of resources that corresponds to its harvesting capacity; the rate of growth of the fishing capacity of that developing coastal State shall be duly taken into account to the extent that it is able to catch a major portion of the allowable catch. They shall entitle a developed coastal State to an allocation of resources necessary for the maintenance of its locally conducted small-scale coastal fishery; the interests of traditionally established fisheries of other States shall be duly taken into account in determining the part of the allowable catch thus reserved..."
33 Ibid., pp. 188-196.
In summary, then, by the end of 1972 the major issues had been voiced in one way or another through the submission of various proposals. Subsumed under the larger battle of exclusive sovereign rights versus preferential fishing rights the basic rules of the fisheries regime were still to be debated. It was clear, and would become clearer in the following year, that those rules would deal with the following issues: (i) allowable catch; (ii) determination of harvesting capacity; (iii) utilization of living resources; and (iv) access to surplus.
During the 1973 sessions of the Sea-Bed Committee, most of the proposals made were on the legal status of the economic zone. With regard to fisheries, only four proposals were submitted. They dealt with sovereign rights of coastal states for the exploration, exploitation, conservation and management of living resources, international responsibilities of coastal states, cooperation between coastal states and appropriate regional and global organizations, and the rights of coastal states to establish regulations regarding fishing activities and conservation programmes.
Some of the main points of the proposals made are summarized in the following section.
(a) Working paper by the United States.34 The United States pursued its species approach to fisheries management through a paper entitled "Special considerations regarding the management of anadromous fishes and highly migratory oceanic fishes", which presented a rather detailed discussion of fishery management and exploitation based on the biological nature of anadromous and highly migratory species. With regard to tuna, the United States argued that international management of the fishery for conservation purposes was required because of their occurrence in and beyond multiple national jurisdictions and because they are fished by nationals of several countries.
34 GAOR, Sea-Bed Comm., Vol. III, Twenty-Eighth Session, Supp. No. 21, (A 9021), pp. 11-19.
(b) Draft articles on fishing by Zaire.35 The draft articles submitted by Zaire dealt primarily with preferential treatment among neighbouring developing states in economic zones for the exploitation of living resources and the rights of geographically disadvantaged states.
35 Ibid., pp. 114-115.
(c) Draft articles on fisheries in national and international zones in ocean space by Ecuador, Panama and Peru.36 The proposals contained in the paper submitted by Ecuador, Panama and Peru were based on the idea that the sovereignty, and therefore jurisdiction, of the coastal state extended to the area adjacent to its coasts and to the resources of the sea, the sea-bed and the subsoil up to a distance of 200 nautical miles measured from the appropriate baselines. The right of the coastal state to regulate and exploit the living resources within that area was thus a consequence of the exercise of its sovereignty, from which it could not be disassociated.
36 Ibid., pp. 107-109.
(d) Draft articles on fisheries by Canada, India, Kenya and Sri Lanka.37 The aforementioned proposal by Kenya on the exclusive economic zone made no specific mention of coastal state obligations with regard to fishing. In the draft articles on fishing, of which Kenya was one of the co-sponsors, it is noted that "the substance of this proposal is complementary to the concept of the exclusive economic zone and should be considered a part thereof". The articles are an elaboration of the Kenyan exclusive economic zone proposal and contain very similar language in some provisions. The substance of the proposal is that the coastal state has a right to establish an exclusive fishery zone in which a coastal state shall enjoy preferential rights to the resources and may reserve for its nationals a portion of the allowable catch corresponding to its harvesting capacity. With regard to highly migratory species that range outside the zone, regulations would be made by an authority designated by the Conference on the Law of the Sea. However, it is also stated that regulations may be made on a regional basis for the exploration, exploitation, conservation and development of living resources outside the limits of the zone where those resources are of limited migratory habits and thus breed, feed and survive on other resources of the region. An article on anadromous species was left blank.
37 Ibid., pp. 82-84.
THE THIRD UNITED NATIONS CONFERENCE ON THE LAW OF THE SEA
The first substantive session of the Third United Nations Conference on the Law of the Sea was held in Caracas from 20 June to 29 August 1974. As previously mentioned, the Chairman of Committee II produced a summary of the proposals before the Committee entitled "Main Trends",38 which reflected the main proposals presented in the form of draft articles on substantive issues. Variants on substantive issues were presented in an organized fashion.
38 UNCLOSOR, Vol. III, pp. 107-142.
The central issue remained the nature and content of the exclusive economic zone since, by this time, the exclusive economic zone concept itself, in one form or another, had been proposed by over 100 countries. With respect to fisheries, Stevenson and Oxman39 have noted three main approaches. "One is complete exclusivity with no coastal state duties. Another is the US approach, which couples exclusive coastal state regulation with conservation and full utilization duties, and special treatment for anadromous species and highly migratory species. A third emphasizes the role of regional organizations."
39 Stevenson, J.R. and Oxman, B.H. 1975. The Third United Nations Conference on the Law of the Sea: The 1974 Caracas Session. AJIL, Vol. 69
(a) Group of Juridical Experts. Whereas the "Main Trends" paper laid out alternatives in an organized fashion, the 1975 session of the Conference saw the emergence of the informal Single Negotiating Text (SNT) which formed the basis for negotiations at the fourth session in 1976.
The spring of 1975 also saw an informal text prepared by Jens Evensen of Norway as Chairman of a Group of Juridical Experts,40 the so-called "Evensen Group" on the economic zone. The group was composed of about 40 participants from all regions and interest groups, acting in their personal capacities.
40 The Economic Zone, 24 April 1975. In Platzoder, R. ed. The Third United Nations Conference on the Law of the Sea: Documents, Vol. IV, (Oceana: Dobbs Ferry, New York, 1983) pp. 209-217.
The text prepared by Evensen on his personal responsibility was not a negotiated text, and several participants expressed reservations to formulations contained therein. It comprised 15 articles divided into two categories: general provisions (articles 1-4) and living resources (articles 5-15). Articles 1-4 included coastal states' sovereign rights and jurisdiction over economic activities, extension of the zone to 200 miles, the rights of third states to enjoy the freedoms of navigation and overflight, the laying of submarine cables and pipelines and other internationally lawful uses of the sea related to navigation and communication, and the exclusive rights of coastal states regarding construction, operation and use of artificial islands, installations and structures, including the right to establish safety zones around them.
Articles 5 and 6 elaborated the obligations of coastal states, in exercising their sovereign rights, to ensure through proper management and conservation measures that the living resources are not endangered by over-exploitation. With regard to allowable catch, the coastal state is required to maintain populations at levels which can produce the maximum sustainable yield. The coastal state shall also promote the objective of optimum utilization and give other states access to that part of the allowable catch which it does not have the capacity to harvest. Fishing by third states shall comply with regulations established by the coastal state relating to licensing, quotas of catch, times and areas of fishing, etc.
Article 7 enjoined states to cooperate in seeking to elaborate standards and guidelines for conservation and rational utilization of living resources directly or within the framework of appropriate international fisheries organizations. It also addressed the issue of cooperation with regard to the conservation of straddling stocks where they occur within the economic zones of two or more coastal states, and where they occur both within the economic zone and in an area beyond and adjacent to the zone.
Article 8 covered non-prejudicial treatment of neighbouring states. Article 9 called for negotiations on access to the living resources on an equitable basis with adjoining geographically disadvantaged states and, in some cases, the granting of preferential rights, and article 10 gave to land-locked states access to participate in the exploitation of living resources on an equitable basis. Article 11 prohibited transfer of rights without coastal state consent. Articles 12-14 dealt with highly migratory species and anadromous and catadromous species, although the highly migratory species article was left blank as the regime was still under discussion. Article 15 dealt with enforcement.
(b) Working paper on the exclusive economic zone by the Group of 77. The work of the Evensen group brought a reaction from the Group of 77, particularly among the extreme territorialists, to give the economic zone a stronger coastal state orientation, and a reaction from the land-locked and geographically disadvantaged states to increase their efforts toward gaining access to neighbouring coastal state fishing grounds.
"The Working Paper on the Exclusive Economic Zone" transmitted to the Chairman of the Second Committee by the Chairman of the Group of 7741 strongly reiterated the position of the land-locked and geographically disadvantaged states. In its eight articles, there is not a single article dealing with a fisheries regime. The absence of articles on fisheries reflects the territorialist nature of the zone as described through the declared rights of coastal states. Article 2 proposes "sovereign rights" for the purpose of exploring, exploiting, conserving and managing the natural resources, whether renewable or non-renewable, of the water column, the sea-bed and subsoil, as well as with regard to other economic activities, such as the production of energy from the water, currents and winds. The article goes on to claim that the coastal state has "jurisdiction" with respect to regulation, control and preservation of the marine environment including pollution control and abatement and, finally, the coastal state has "exclusive jurisdiction" over scientific research and the establishment and use of artificial islands, installations, structures and other devices, customs, fiscal, health, public order and immigration.
41 Working Paper on the Exclusive Economic Zone. 1 May 1975. Ibid., pp. 227-230.
(c) The Single Negotiating Text. In April 1975, the Informal Consultative Group of the Whole on the Economic Zone was established by the Second Committee.42 At its first meeting, the Chairman stated that "the coastal State's sovereign rights with respect to renewable and non-renewable resources in the economic zone is no longer a matter of controversy".43 The Group then proceeded to consider how other interests might be accommodated in the zone and what was the extent of those interests. The issues mentioned and discussed were: other economic activities in the zone, coastal state's rights or jurisdiction over scientific research, artificial islands and installations, the freedoms of navigation and overflight and the laying of submarine cables and pipelines. The working paper used in the discussions was the "Main Trends" paper and the Group continually referred to what delegations thought should be included in the single text which at this point was seen to be emerging. Delegations spoke in their representative capacities as well as on behalf of the major interest groups whose views had to be accommodated in any viable and broadly acceptable text. It was as a result of the discussions in this broad-based forum that the political balance that was eventually reflected in the Single Negotiating Text was synthesized. The Single Negotiating Text had to be based on two important premises: the first was a balance among the competing interests within the exclusive economic zone, and the second was the extent and nature of the zone in the overall context of the wider package of the Convention as a whole.
42 UNCLOSOR, Vol. IV, p. 196.
43 Statement of S. Nandan (Fiji), Chairman, from "Informal Notes of the Secretariat of the Second Committee", First Meeting of Informal Consultative Group on Economic Zone, 24 April 1975.
The wording of the SNT on the exclusive economic zone is almost identical to that contained in the 1982 Convention signifying in retrospect that the battle over the coastal states' rights in respect of the natural resources of the oceans adjacent to their territorial seas was over. There were still, however, certain matters which needed to be clarified. These related to: the issue of residual rights in the exclusive economic zone; the rights of land-locked and geographically disadvantaged states to the resources of the zones of their neighbouring states; and the question of peaceful settlement of disputes arising out of the exercise of sovereign rights by the coastal states in the zone. Thus, although the Conference would continue for six more years, the debate on the control of fisheries and the mineral resources of the exclusive economic zone was essentially over.
The issue of "residual rights" not attributed specifically to the coastal state or to a third state needed to be certified in order to take into account future activities, such as uses of the sea not yet discovered, or certain strategic uses not yet contemplated in the Convention but traditionally practised as part of high seas freedoms. The issue was resolved on the basis of a proposal by Mexico in a small informal group known as the "Castañeda-Vindenes Group".44 A new provision was added establishing that the exclusive economic zone had a sui generis legal status, and therefore did not form part of the territorial sea nor of the high seas, and could not be assimilated in either. In addition, the definition of the high seas in the SNT was also clarified to provide the reassurance that the freedoms enjoyed by third states in respect of non-resource-related activities in the exclusive economic zone were not abridged. In case of any conflicts in respect of rights not specifically attributed to coastal states or to other states, the issue should be resolved on the basis of equity, taking into account the respective importance of the interests involved to the parties themselves, as well as to the international community as a whole. Given the functional nature of the exclusive economic zone, the general assumption would be that where economic interests were concerned, equity would favour the coastal states. On issues involving non-resource uses, the interests of third states or the international community would presumably be predominant.
44 This private group was composed of Australia, Brazil, Bulgaria, Canada, Egypt, India, Kenya, Mexico, Nigeria, Norway, Peru, United Kingdom, United States, Singapore, USSR, Tanzania and Venezuela. It was chaired jointly by Ambassadors Castaneda (Mexico) and Vindenes (Norway).
The issue of the rights of neighbouring land-locked and geographically disadvantaged states in the exclusive economic zone was the subject of protracted negotiations in Negotiating Group 4 of the Conference.45 The agreement reached in that Group formed the basis for Articles 69, 70, 71 and 72 of the Convention.
45 Negotiating Group 4, chaired by S.N. Nandan (Fiji), was one of the seven negotiating groups established by the Conference to resolve the outstanding hard-core issues at that time.
The question of peaceful settlement of disputes arising from the exercise of sovereign rights by the coastal state in the exclusive economic zone was the subject of discussions in Negotiating Group 5 of the Conference.46 The rules that emerged from the agreement reached in that Group were incorporated in Article 297(3) of the Convention.
46 Chaired by C. Stavropoulos (Greece).
In any analysis of the development of the concept of the exclusive economic zone, it would be apparent that much of its content is based on preexisting ideas. The notion of "sovereign rights" over natural resources was already contained in the 1958 Convention on the Continental Shelf. It was expanded to cover living and non-living resources of the exclusive economic zone. The inspiration for the regime for installations and artificial islands and the establishment of safety zones around them is to be found in that same Convention. The "consent regime" for marine scientific research in the exclusive economic zone is also based on the Continental Shelf Convention. As regards fisheries provisions, in particular those relating to their conservation and management, many useful proposals were listed in the "Main Trends" paper. Proposals from the United States, Japan, the USSR and Canada, among others, contributed substantially to provisions in the Convention on this aspect, even though they were made in the context of preferential fishing rights of coastal states. Those proposals became the starting point for filling out the concept of the exclusive economic zone, with obvious adjustments to take into account the emerging political and juridical nature of rights and interests in the zone, as reflected eventually in the SNT. The specific regimes for anadromous and catadromous species were based on Canadian and New Zealand proposals, respectively. The article on highly migratory species was originally proposed in the Group of 77 by Papua New Guinea on behalf of the small "Oceania Group" consisting of southwestern Pacific states.
THE EXCLUSIVE ECONOMIC ZONE REGIME, 1982 CONVENTION
The regime gives to coastal states sovereign rights over the natural resources and control of resources-related activities in the zone, while preserving for the international community the freedoms of navigation, overflight and the laying of submarine cables and pipelines.
Coastal states have sovereign rights for the purpose of exploring and exploiting, conserving and managing the living resources of the exclusive economic zone (Article 56). The provisions relating to non-living resources are subsumed in the continental shelf provisions, although jurisdiction over the part of the continental shelf which lies within the exclusive economic zone is not dependent on geophysical considerations. With respect to living resources, the coastal state has broad regulatory and management powers. The coastal state, however, must ensure that the resource is not endangered by over-exploitation and it must do this through proper conservation and management (Article 61). Such measures must be designed to ensure that the populations of harvested species are maintained or restored at levels which can produce the maximum sustainable yield as qualified by relevant environmental and economic factors (Article 61).
Coastal states also have the obligation to promote the objective of optimum utilization of the living resources. The coastal state is obliged to assess the allowable catch and to determine its own capacity to harvest the resources. If it does not have the capacity to harvest the entire allowable catch, it must give other states access to the surplus (Article 62).
Land-locked and geographically disadvantaged states have the right to participate, on an equitable basis, in the exploitation of an appropriate part of the surplus of the living resources subject to arrangements with the coastal state involved (Articles 69 and 70).
There are special provisions for straddling stocks (Article 63), anadromous species (Article 66), catadromous species (Article 67), sedentary species (Article 68) and marine mammals (Article 65). With respect to highly migratory species, the coastal state and other states whose nationals fish in the region shall cooperate directly or through appropriate international organizations with a view to ensuring conservation and promoting the objective of optimum utilization of such species, both within and beyond the exclusive economic zone (Article 64).
In exercising its sovereign rights, the coastal state is empowered to take a wide range of enforcement measures such as boarding, inspection, arrest and judicial proceedings (Article 73).
Finally, a description of the regime would not be complete without mentioning the subject of dispute settlement as it is detailed in Article 297(3). With regard to fisheries disputes concerning the interpretation or application of Convention provisions, they are to be settled by a binding form of dispute settlement. However, coastal states are not obliged to submit disputes relating to the exercise of sovereign rights with respect to living resources in the exclusive economic zone to any form of compulsory dispute settlement procedures. The issues under this exception include the coastal state's discretionary powers for determining allowable catch, its harvesting capacity, the allocation of surpluses to other states and the terms and conditions established in its conservation and management laws and regulations.
However, a coastal state would be obliged to submit to conciliation certain specific disputes - those arising from an allegation that:
(i) a coastal state has manifestly failed to comply with its obligations to ensure through proper conservation and management measures that the maintenance of the living resources in the exclusive economic zone is not seriously endangered;
(ii) a coastal state has arbitrarily refused to determine, at the request of another state, the allowable catch and its capacity to harvest living resources with respect to stocks which that other state is interested in fishing; or
(iii) a coastal state has arbitrarily refused to allocate to any state, under Articles 62, 69 and 70 and under the terms and conditions established by the coastal state consistent with the Convention, the whole or part of the surplus it has declared to exist.
The exercise of the coastal state's discretionary power is protected by the fact that the conciliation commission shall not substitute its discretion for that of the coastal state.
The merging of ideas from diverse origins is readily apparent in the Convention. The basic premise upon which the Convention rests is that there is a balance of rights and obligations. The history of the economic zone concept and the fisheries regime illustrate in particular this basic premise.
SOME GENERAL OBSERVATIONS ON THE EXCLUSIVE ECONOMIC ZONE
It is not possible in this article to provide a full commentary on the texts of the provisions on the exclusive economic zone in the Convention. However, the following general observations on the regime might be made:
· 1. The regime for the exclusive economic zone is sui generis. Under it the coastal states and other states have specific competences. The legal regime of the exclusive economic zone is thus different from those of the territorial sea and the high seas. It is a zone which incorporates certain characteristics of both regimes but belongs to neither. The zone represents a politico-legal compromise and its various elements constitute a complete unit whose structural harmony and functional balance will be destroyed if it were to be assimilated into any pre-existing concept.
· 2. In the exclusive economic zone a coastal state has been given sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources. In exercising its rights and performing its duties under the Convention, the coastal state is obliged to have due regard to the rights and duties of other states and to act in a manner compatible with the Convention (Article 56). The coastal state has been given considerable discretion in the management of the zone; however, the Convention also imposes specific management responsibilities on the coastal state, especially as concerns the living resources of the zone. In the light of these management responsibilities, a coastal state which has claimed an exclusive economic zone cannot pursue a policy of inaction with respect to its living resources.
· 3. The Convention refers to specific matters which a coastal state should take into account in the management of the zone. It contains provisions requiring a state to enter into agreements with other states, either bilaterally, subregionally or regionally. These references in some cases serve to highlight the interests of other states in the zone or to create preferences in their favour and they were essential elements in the compromises which made the concept of the exclusive economic zone generally acceptable. They now require to be implemented in good faith by all concerned.
The regime of the exclusive economic zone is clearly a revolutionary legal concept which evolved very quickly. In about a 30-year time span, an ocean regime has emerged from many diverse ideas and interests and has found universal acceptance establishing the unlikely proposition that the whole is greater than the sum of its parts.