The Exclusive Economic Zone

(b) jurisdiction as provided for in the Convention with regard to the establishment and use of artificial islands, installations and structures, marine scientific research, and the protection and preservation of the marine environment;

(c) other rights and duties provided for in the Convention.

Article 56(2) requires the coastal State, in exercising its rights and performing its duties, to have due regard to the rights and duties of other States and to act in a manner compatible with the Convention.

Sovereign rights, not sovereignty. This is the distinction the whole chapter turns on. Sovereignty is general and covers everything; sovereign rights are a defined bundle for a defined purpose. A State has sovereignty over its territorial sea and sovereign rights over the resources of its exclusive economic zone, and the difference decides whether a foreign warship may exercise there, whether a foreign ship may be boarded, and whose criminal law applies.

What other States keep: article 58

Article 58(1). In the exclusive economic zone all States, whether coastal or land-locked, enjoy, subject to the relevant provisions of the Convention, the freedoms referred to in article 87 of navigation and overflight and of the laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to those freedoms, such as those associated with the operation of ships, aircraft and submarine cables and pipelines.

Article 58(3) requires those States, in exercising their rights, to have due regard to the rights and duties of the coastal State and to comply with the laws and regulations it has adopted in accordance with the Convention.

So navigation through the zone is free. A foreign ship sailing across another State's exclusive economic zone is doing what article 58 permits, and the coastal State may not stop it merely for being there.

The fisheries scheme: articles 61 to 73

The heart of the zone in practice, and the part MU's textbooks treat at length.

Article 61, conservation. The coastal State shall determine the allowable catch of the living resources in its zone, and shall ensure through proper conservation and management measures, taking into account the best scientific evidence available to it, that the maintenance of the living resources is not endangered by over-exploitation.

Article 62, utilisation. The coastal State shall promote the objective of optimum utilisation without prejudice to article 61, and shall determine its capacity to harvest the living resources of the zone. Where it does not have the capacity to harvest the entire allowable catch, it shall give other States access to the surplus, by agreements or other arrangements, taking into account all relevant factors.

Article 62(4) requires nationals of other States fishing in the zone to comply with the conservation measures and other terms of the coastal State's laws, which may cover licensing, quotas, seasons, gear, the reporting of catch, research programmes, observers and the landing of catch.

Articles 63 to 68 deal with particular species: stocks occurring within the zones of two or more States or both within a zone and beyond it, highly migratory species in article 64, marine mammals in article 65, anadromous stocks such as salmon in article 66, catadromous species such as eels in article 67, and sedentary species in article 68, which are governed by the continental shelf regime instead.

Articles 69 and 70. Land-locked States and geographically disadvantaged States shall have the right to participate, on an equitable basis, in the exploitation of an appropriate part of the surplus of the living resources of the exclusive economic zones of coastal States of the same subregion or region, taking into account the relevant economic and geographical circumstances. Article 71 makes articles 69 and 70 inapplicable to a coastal State whose economy is overwhelmingly dependent on the exploitation of the living resources of its zone. Article 72 restricts the transfer of the rights so granted.

Article 73, enforcement. The coastal State may take such measures as may be necessary to ensure compliance, including boarding, inspection, arrest and judicial proceedings. Arrested vessels and their crews shall be promptly released on the posting of reasonable bond or other security. Coastal State penalties for violations of fisheries laws in the zone may not include imprisonment, in the absence of agreement to the contrary by the States concerned, or any other form of corporal punishment. And in cases of arrest or detention the coastal State shall promptly notify the flag State.

Article 73 is the provision that most often decides a problem question, because it grants a real enforcement power and then limits the penalty.

Artificial islands: article 60

Article 60(1). In the exclusive economic zone the coastal State has the exclusive right to construct and to authorise and regulate the construction, operation and use of artificial islands, and of installations and structures for the purposes provided for in article 56 and other economic purposes, and of installations and structures which may interfere with the exercise of its rights in the zone.

Article 60(8) is the limit already met in [Acquisition of State Territory]: artificial islands, installations and structures do not possess the status of islands, they have no territorial sea of their own, and their presence does not affect the delimitation of the territorial sea, the exclusive economic zone or the continental shelf.

Article 75 requires the outer limit lines of the exclusive economic zone and the lines of delimitation drawn in accordance with article 74 to be shown on charts of a scale adequate for ascertaining their position, or replaced by lists of geographical coordinates, and requires the coastal State to give them due publicity and to deposit a copy with the Secretary-General of the United Nations. It is the publicity requirement that makes the zone's limits knowable to the ships that must respect them.

Islands and rocks: article 121

Article 121(1). An island is a naturally formed area of land, surrounded by water, which is above water at high tide.

Article 121(2). Except as provided in paragraph 3, the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf of an island are determined in accordance with the provisions of the Convention applicable to other land territory.

Article 121(3). Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.

That paragraph is worth more than most articles in the Convention. A feature that is an island generates a full two-hundred-mile zone and a shelf; a feature that is a rock within paragraph 3 generates a territorial sea and a contiguous zone and nothing more. The difference between the two can be hundreds of thousands of square kilometres of ocean, and the Convention gives no definition of "sustain human habitation or economic life of their own".

India's zone

Section 7 of the Maritime Zones Act 1976. The exclusive economic zone of India is an area beyond and adjacent to the territorial waters, the limit of which is two hundred nautical miles from the baseline referred to in section 3(2).

The section vests in India sovereign rights for the exploration, exploitation, conservation and management of the natural resources, living and non-living, of the zone, exclusive rights and jurisdiction for the construction, maintenance or operation of artificial islands, offshore terminals, installations and other structures and devices, exclusive jurisdiction to authorise, regulate and control scientific research, exclusive jurisdiction to preserve and protect the marine environment and to prevent and control marine pollution, and such other rights as are recognised by international law.

A worked example

A trawler of State GG is found fishing 120 miles off State HH's coast, without a licence. Its master resists boarding. State HH arrests the vessel, jails the master for six months and confiscates the catch. State GG protests. Separately, a State GG warship conducts a military exercise 150 miles off the same coast, and a State GG research vessel takes seabed samples at 90 miles.

The fishing. Article 56(1)(a) gives State HH sovereign rights for exploring, exploiting, conserving and managing the living resources of the zone, and article 62(4) requires nationals of other States fishing there to comply with its licensing and other terms. Fishing without a licence is a breach.

The boarding and arrest. Article 73(1) permits boarding, inspection, arrest and judicial proceedings as may be necessary to ensure compliance.

The six months' imprisonment. Unlawful. Article 73(3) provides that coastal State penalties for violations of fisheries laws in the exclusive economic zone may not include imprisonment, in the absence of agreement to the contrary by the States concerned, or any other form of corporal punishment.

The continued detention of the vessel. Article 73(2) requires prompt release of arrested vessels and their crews on the posting of reasonable bond or other security. And article 73(4) requires State HH to notify State GG promptly of the arrest and of any penalties.

The military exercise at 150 miles. Contested, and the answer should say so. Article 58(1) preserves the freedoms of navigation and overflight and other internationally lawful uses of the sea related to those freedoms, and the maritime powers read that as covering military activities. A number of coastal States, India among those that have made declarations on the point, read article 56 and the due regard obligation in article 58(3) as requiring consent for military exercises in the zone. The Convention does not resolve it.

The research vessel at 90 miles. Not contested. Article 56(1)(b) gives the coastal State jurisdiction with regard to marine scientific research, and Part XIII requires the consent of the coastal State for research in its zone and on its shelf. Taking seabed samples without consent is a breach.

Change one fact: the feature State HH measures from is a bare rock two miles long with no fresh water. Then article 121(3) may decide everything: rocks which cannot sustain human habitation or economic life of their own have no exclusive economic zone or continental shelf, so there may be no zone at 120 miles at all.

Distinctions table

What it does NOT mean

The zone is not territory and the coastal State is not sovereign there. Article 56 gives sovereign rights and defined jurisdiction, and article 58 preserves the freedoms of navigation, overflight and cable-laying for everybody.

The coastal State does not own the fish absolutely. Articles 61 and 62 require it to set an allowable catch, to pursue optimum utilisation, and to give other States access to the surplus it cannot harvest.

Imprisonment is not available for fisheries offences in the zone, absent agreement to the contrary: article 73(3).

An artificial island is not an island. Article 60(8): no status as an island, no territorial sea, no effect on delimitation.

Not every above-water feature generates a zone. Article 121(3) denies an exclusive economic zone and a continental shelf to rocks which cannot sustain human habitation or economic life of their own.

Limits and criticism

Article 121(3) is undefined and decides enormous claims. Whether a feature can sustain human habitation or economic life of its own is the most valuable question in the modern law of the sea and the Convention says nothing about how to answer it.

Military activities in the zone are unresolved. The Convention was drafted around the disagreement rather than through it, and the declarations States have filed under article 310 record two incompatible readings of the same text.

The surplus obligation is soft. The coastal State determines its own allowable catch and its own harvesting capacity, so it decides whether there is any surplus at all, and articles 69 and 70 give land-locked and geographically disadvantaged States a right to a share of something the coastal State can define out of existence.

Quick revision

Article 55: a specific legal regime, neither territorial sea nor high seas. Article 57: not beyond 200 nautical miles from the baselines.

Article 56(1): sovereign rights to explore, exploit, conserve and manage the natural resources, living and non-living, of the waters, seabed and subsoil, and other economic activities; jurisdiction over artificial islands, marine scientific research and protection of the marine environment. 56(2): due regard to other States.

Article 58: all States keep the article 87 freedoms of navigation, overflight and cable-laying, with due regard to the coastal State.

Fisheries: 61 allowable catch and conservation; 62 optimum utilisation, harvesting capacity and access to the surplus; 63 to 68 shared, highly migratory, mammals, anadromous, catadromous and sedentary species; 69 and 70 land-locked and geographically disadvantaged States; 73 enforcement, with prompt release on bond and no imprisonment absent agreement.

Article 60: exclusive right over artificial islands; 60(8) they are not islands and have no territorial sea.

Article 121: an island is a naturally formed area of land above water at high tide and generates all zones; 121(3), rocks which cannot sustain human habitation or economic life of their own have no exclusive economic zone or continental shelf.

India: section 7 of the Maritime Zones Act 1976, two hundred nautical miles.

Test yourself

1. What rights does a coastal State have in its exclusive economic zone?

Under article 56(1) it has sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone such as the production of energy from the water, currents and winds. It also has jurisdiction with regard to artificial islands, installations and structures, marine scientific research, and the protection and preservation of the marine environment, together with the other rights and duties the Convention provides. Article 56(2) requires it to have due regard to the rights and duties of other States.

2. Distinguish sovereign rights from sovereignty.

Sovereignty is general: within its territory, including the territorial sea, a State may do everything a State may do, subject only to limits international law imposes such as innocent passage. Sovereign rights are a defined bundle conferred for a defined purpose: in the exclusive economic zone the coastal State has rights over resources and jurisdiction over three listed matters, and nothing else. The consequence is that foreign navigation and overflight in the zone are free under article 58, whereas in the territorial sea they are permitted only as innocent passage and overflight not at all.

3. May a coastal State imprison a foreign fisherman caught poaching in its exclusive economic zone?

No, absent agreement to the contrary between the States concerned. Article 73(1) permits it to board, inspect, arrest and institute judicial proceedings as necessary to ensure compliance. But article 73(3) provides that coastal State penalties for violations of fisheries laws and regulations in the exclusive economic zone may not include imprisonment, in the absence of agreement to the contrary by the States concerned, or any other form of corporal punishment. Article 73(2) additionally requires prompt release of arrested vessels and crews on posting reasonable bond, and article 73(4) requires prompt notification of the flag State.

4. Must the coastal State share the fish?

To a degree. Article 61 obliges it to determine the allowable catch and to ensure by proper conservation and management measures, taking account of the best scientific evidence available to it, that the living resources are not endangered by over-exploitation. Article 62 obliges it to promote optimum utilisation, to determine its own capacity to harvest, and, where it does not have the capacity to harvest the entire allowable catch, to give other States access to the surplus by agreements or other arrangements. Articles 69 and 70 give land-locked and geographically disadvantaged States of the same subregion or region a right to participate on an equitable basis in an appropriate part of that surplus, subject to article 71's exception for States overwhelmingly dependent on their own zone. The obligation is real and soft, because the coastal State sets both the allowable catch and its own capacity, and so decides whether a surplus exists.

5. What is the difference between an island and a rock, and why does it matter?

Article 121(1) defines an island as a naturally formed area of land, surrounded by water, which is above water at high tide, and article 121(2) gives an island the same zones as other land territory. Article 121(3) provides that rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf, so such a feature generates a territorial sea and a contiguous zone only. The difference matters because a single feature classified as an island can generate an exclusive economic zone of well over 400,000 square kilometres, and the Convention offers no guidance at all on what sustaining human habitation or economic life of its own means.

6. Are foreign military exercises lawful in another State's exclusive economic zone?

The Convention does not answer it, and the honest examination answer says so. The maritime powers rely on article 58(1), which preserves the freedoms referred to in article 87 of navigation and overflight and other internationally lawful uses of the sea related to those freedoms, and read military activities as among them. A number of coastal States, including several that filed declarations under article 310, rely on article 56 and on the duty of due regard in article 58(3) to argue that military exercises require the coastal State's consent. Both readings are available on the text, the disagreement was known at UNCLOS III, and the Convention was drafted around it rather than through it.