Hydrographic surveying in the EEZ: differences and overlaps with marine scientific research

This paper reviews differences and overlaps between hydrographic surveying and marine scientific research in the exclusive economic zone (EEZ), including the concept of military surveying. It concludes that recent trends with technology, the utility of hydrographic data and State practice suggest that hydrographic surveying in the EEZ should be under the jurisdiction of the coastal State. Paradoxically arguments for military surveys in the EEZ being outside coastal State jurisdiction appear stronger than those for hydrographic surveying. The paper offers some guidelines related to the conduct of hydrographic surveying in the EEZ.     

A Chinese Perspective

Regarding the regime of military and intelligence gathering activities in the EEZ, China argues that the freedoms of navigation and overflight in the EEZ have certain restrictions including that the activity must be peaceful and not threaten to use force against the coastal State. This includes military surveys, military maneuvers, and military reconnaissance which are a form of battlefield preparation. These activities are also subject to due regard for the rights of the coastal State. China also argues that there are serious shortcomings regarding the regime of marine scientific research (MSR) in the EEZ and that marine surveys or military surveys carried out by MSR platforms require the consent of the coastal State.     

Fisheries development in Vietnam: A case study in the exclusive economic zone

Pursuant to statement issued by the Government of Vietnam on 12 May 1977, on the territorial sea, the contiguous zone, the exclusive economic zone (EEZ) and the continental shelf of Vietnam, and according to the provisions of the LOS Convention, the EEZ of Vietnam extends principally up to 200 NM from the baseline, and the area of EEZ amounts to about one million square km including the Hoang Sa (Paracel) and Truong Sa (Spratly) Islands [The declaration of the Government of Vietnam on the territorial sea, contiguous zone, exclusive economic zone and continental shelf, Hanoi, 1977]. The establishment of EEZ has significantly changed circumstances for the fisheries sector in Vietnam.Recently, even though the adaptation of new techniques and technologies to the fisheries sector has been somewhat successful and resulted in the limitation of effective exploitation opportunities, sea fishing is still very important to the economy of Vietnam. In fact, fisheries development in Vietnam has the following important objectives, whether pursued in marine or fresh water: foreign exchange earnings; protein for local diets and feeds for live stock; provision of employment. However, a matter of concern is that the outdate fishing methods and uncontrolled fishing are damaging the marine environment and living resources. These problems have been recognized and courses of action have been formulated. A prerequisite condition for resolving this issue is to have a mechanism for synchronized policies which are guaranteed by appropriate macro management. The main purposes of this paper are a review of some aspects of fisheries sector development and management in Vietnam in the light of the new regime of the EEZ, represented in the LOS Convention. An important objective of the paper is the emphasis on the problem of policy-relevant research for fisheries sector management in the future.     

A Korean perspective

The adoption of the EEZ in the 1982 UNCLOS represents the culmination of an effort by some parts of the international community to separate “jurisdiction” over the natural resources in offshore waters from the “sovereignty” manifest in the territorial sea. It is clear that the EEZ is a zone that is neither territorial waters nor wholly high-seas. It is also a zone in which competencies are balanced between the need of coastal States to have sufficient authority to exploit and manage their economic resources and the need of all other States to retain high-seas navigation and communications freedoms and uses related to such freedoms. From South Korea's perspective, the EEZ is a sui generic zone in which military and intelligence activities are limited or not allowed without the consent of the coastal State. This is equally applicable in peace and war. Although several States stress that Article 58 of the 1982 UNCLOS permits such activities, increasing EW and IW capabilities may result in reinterpretation of certain provisions of the 1982 UNCLOS.     

Draft guidelines for military and intelligence gathering activities in the EEZ and their means and manner of implementation and enforcement

Specific voluntary guidelines are proposed for military and intelligence gathering activities in the EEZ. Views on the guidelines range from strong reservations regarding any restrictions on these activities to support for some restrictions. There is general support for the effort to promote mutual understanding and agreement on the rights and obligations of the maritime powers which do not want any rules and coastal States that want some predictability and protection against intimidation. The challenge is to find a practical way of handling these issues. Suggestions are provided regarding requisite specific assurances and the process for implementing and enforcing any such guidelines. State consent and State practice will play a significant role in this process.     

Conclusions,regime building and the way forward

Military intelligence gathering activities in the EEZs are becoming more controversial and more dangerous due to increasing and changing demands for technical intelligence; robust weapons and electronic warfare; and widespread development of information warfare capabilities. There is agreement that freedom of navigation and overflight should not interfere with the coastal state's right to protect and manage its EEZ resources and environment. But there is considerable disagreement on the meaning of some key 1982 UNCLOS language, the means of resolving these disagreements, or whether there is a need to do so. Each alternative approach to resolving these disagreements has its advantages and disadvantages. Needed now is a common understanding of terminology and guidelines for military and intelligence gathering activities in the EEZ. What is being proposed is regime building, a process which has its own conditions for, and constraints to, success. Foremost among the conditions for success is the recognition of the necessity of co-operation, and agreement on its form such as the SUA Convention, or ocean management, which may have a spillover effect to enhanced multilateral security. Given the constraints, a loose blueprint for the way forward can be constructed in which the continuity of this informal dialogue plays a major role. Specific next steps include fact finding regarding previous incidents; production of a glossary of definitions of critical terms; categorization of activities in the EEZ as to which are allowed and not allowed; the manner of implementation of coastal states’ rights; the means and manner of enforcement of any agreed rules; and specific suggestions for policy.     

Report of the Tokyo meeting and progress to date

Military and intelligence gathering activities will likely become more intensive, intrusive, controversial and dangerous. Regarding the regime covering these activities, there is general agreement that the exercise of the freedom of navigation and overflight in and above Exclusive Economic Zones (EEZs) should not interfere with the rights of the coastal State in the EEZ. But there is disagreement regarding interpretations of relevant 1982 UNCLOS provisions, the means to resolve the disagreements, or if there is even a need to do so. Increased dialogue between maritime powers and coastal States is necessary to reach a mutual understanding of key terms with a goal of developing some agreed voluntary guidelines for such activities and the means and manner of implementing them.     

Introduction: military and intelligence gathering activities in the exclusive economic zones: consensus and disagreement II

Maritime issues have risen to the forefront of current security concerns. In particular, military and intelligence gathering activities in foreign exclusive economic zones (EEZ) remain controversial. Exacerbating factors include advancing military and intelligence technology, a growing dialectic between coastal States and maritime powers, and new threats like terrorism and weapons of mass destruction. The Honolulu Meeting was part of a Dialogue series on these issues. Topics covered included a summary of the Tokyo Meeting; recent incidents and developments; different perspectives; the proliferation security initiative; implications for the EEZ regime; key terms: range of interpretation; hydrographic surveys and scientific research: differences, overlaps and implications; draft guidelines for military and intelligence gathering in the EEZ; means and manner of implementation and enforcement of any agreed rules; and conclusions and the way forward.     

The US freedom of navigation program preserving the law of the sea

The 1982 United Nations Convention on the Law of the Sea prescribed extensive rules of behavior for the international community in the oceanic regime. Some of the most important provisions of the Convention are those regarding the freedom of navigation and overflight in various maritime zones, i.e. territorial seas, international straits, archipelagos, exclusive economic zones and the high seas.While most coastal nations are complying with the navigation and overflight provisos of the Convention, some are not. Where excessive maritime claims exist, the US has evolved an ambitious Freedom of Navigation (FON) Program which challenges these excessive claims. This Program was initiated under the Carter Administration in 1979 and has continued, unabated, ever since.As the international community prepares for the day when the 1982 Convention becomes universally-recognized international law, there are likely to be periodic excessive maritime claims. In cases where the Convention's dispute settlement provisos fail to resolve excessive claims, the community of nations may find it useful to use the US FON Program as an example for the enforcement of maritime rules.     

The international legal framework for marine spatial planning

Increasing demand for ocean resources, both living and non-living, have already lead to loss of biodiversity, habitat depletion and irreversible damage to the marine environment. Furthermore, introduction of new kinds of sea uses, spatial extension of ongoing sea uses and the need to better protect and conserve the marine biological diversity will result in increasing conflicts among the various users, as well as between the users and the environment. Marine spatial planning as a process to allocate space for specific uses can help to avoid user conflicts, to improve the management of marine spatial claims, and to sustain an ecosystem-based management of ocean and seas. This article explores the rights and duties towards exploitation and protection of the marine environment under the jurisdiction of coastal states as reflected in two important global conventions, the United Nations Convention on the Law of the Sea and the Convention on Biological Diversity. Both Conventions provide the main legal framework for marine spatial planning that have to be taken into account in planning at the regional and national level.     

Quantitative analysis for maritime delimitation: Reassessing the Bay of Bengal delimitation between Bangladesh and Myanmar

This article examines technical aspects of the maritime boundary dispute between Bangladesh and Myanmar (the ‘Bay of Bengal case’). This dispute was the first maritime delimitation determined by the International Tribunal for the Law of the Sea (ITLOS). The 2012 decision was also the first time that a maritime boundary for the seabed and subsoil of the Exclusive Economic Zone (EEZ) and the extended continental shelf (ECS) was determined by international adjudication. This was also therefore the first time that detailed technical quantification of seabed areas within the EEZ and ECS was needed for achieving an equitable division of these maritime zones in an international forum. Following review of the principles of maritime delimitation on which the ITLOS reached its determination, this article analyzes the legal status and delimitation effect of St. Martin's Island. Concerning the question of whether the legal regimes of the EEZ and continental shelf should be treated differently in a single delimitation line, although the ITLOS determined that the legal regimes should not be distinguished in the present case, a different approach is proposed for future cases. The article identifies how quantitative modelling can be used to achieve an equitable boundary and proposes a model to adjust provisional equidistance lines in accordance with the complex geophysical rules prescribed for the outer limits of the ECS in Article 76 of the United Nations Law of the Sea Convention (LOSC).     

The arrest of ships in maritime zones beyond internal waters in Belgian maritime law

Opportunities may arise to arrest a ship in maritime zones beyond internal waters, e.g. in the territorial sea and the exclusive economic zone (EEZ). This paper examines the possibilities for arrest in those areas on the basis of jurisdiction ratione loci and ratione materiae. Under Belgian law the territorial sea is not part of the State's territory; accordingly, the Belgian Judicial Code does not provide for an attachment judge nor a bailiff to have jurisdiction in this area and a fortiori in the EEZ. The law of April 22, 1999 solved the problem of territorial jurisdiction in this respect. As far as a ship's arrest in the EEZ is concerned, it is not clear whether the United Nations Law of the Sea Convention (articles 73 and 220) combined with the requirement of a maritime claim, allows for an arrest at all.     

Identification of ‘High Risk Vessels’ in coastal waters

The development of criteria for the identification of ‘High Risk Vessels’ (HRV) in European waters would allow coastal States to monitor the movements of ships posing significant risk to their interests. However, the pro-active monitoring by coastal States can only be carried out in compliance with the requirements of international law of the sea and with the framework of rights and duties of coastal States established in the UN Convention on the Law of the Sea. This paper proposes ‘HRV’ criteria on the basis of technical standards and rules widely accepted by States through Port State Control Agreements, thus providing a legal basis for the monitoring of ‘HRV’ by coastal States.     

The exclusive economic zone and economic development in the Pacific island countries

The exclusive economic zone (EEZ) became accepted internationally in the 1970s. This transferred resource wealth to the coastal states establishing such zones. The history of the EEZ is reviewed, and its impact on the economic development of the Pacific island states considered. The growth performance and the tuna fishery development of these states are reviewed and possible causes of limited success discussed. The use of trust funds to increase the resource wealth of the Pacific island states is briefly considered.     

Fishery provisions of the ICNT: Part 2

In the second of two articles analysing the fishery provisions of the ICNT/Rev 2, the author concentrates on unresolved legal problems of the world's marine fisheries. Difficulties associated with MSY and OSY, TAC, surplus, coastal state control over the EEZ, high-seas fishing, anadromous species, land-locked and geographically disadvantaged states, and sedentary species are discussed, and an assessment is made of the ICNT's attempt to ensure a more equitable distribution of world fishery resources.     

Rockall and the limits of national jurisdiction of the UK: Part 2

Part 1 of this article, published in the July issue of Marine Policy, contained the first in a four-section examination of the Rockall question. Section I presented a survey of the law governing the delimitation of the continental shelf, the EEZ, and exclusive fishing zones, thus providing a background for sections II–IV, which constitute Part 2. In this Part, the author examines the geography and geology of the Rockall sector and the claims made by the UK, Ireland and Denmark, before drawing conclusions from the whole article.     

Thailand and the 1982 law of the sea convention

This article considers Thailand's problems with the 1982 LOS Convention, especially the exclusive economic zones. Despite the disadvantages, it recommends that Thailand should ratify the Convention.     

The contribution of fisheries access agreements to flag State responsibility

On 2 April 2015, the International Tribunal for the Law of the Sea (ITLOS) rendered an advisory opinion in which it held that Articles 58(3), 62(4), 94(2), 192 of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) laid down a responsibility of flag States for fishing activities undertaken by private actors in the Exclusive Economic Zones (EEZs) of coastal States. In interpreting these provisions of UNCLOS, the ITLOS made reference to specific clauses in fisheries access agreements (FAAs) concluded by coastal States and flag States. This article examines in more detail the contribution of FAAs to the concept of flag State responsibility. It will first offer a brief discussion of the framework for fisheries access under national jurisdiction provided by UNCLOS and will then take a closer look at how certain provisions contained in FAAs have contributed –and could contribute in the future– to the concept of flag State responsibility in international fisheries law. The article concludes that FAAs have contributed significantly to the development of the concept of flag State responsibility for fishing activities in the past and may do so to a more limited extent in the future.     

Rights based fishing on the high seas: Is it possible?

The high seas fisheries are troubled by overcapacity and lax enforcement of management rules. The idea has emerged that these problems could be dealt with by property rights solutions such as ITQs. Such management tools only emerged after the 200-mile EEZ was established. This made it possible to apply the sovereign state's legislative, enforcement and judiciary apparatus to regulate fisheries. It is argued that without the EEZ such solutions would have been unlikely to emerge, and that a further extension of the EEZ is necessary to apply rights-based regulations to high seas fisheries. The current management regime of high seas fisheries lacks the necessary enforcement apparatus, which makes it necessary to apply trade sanctions, port measures and blacklisting to support regulations of high seas fisheries. It is argued that such measures are likely to be the second best, compared to further extending coastal state jurisdiction. Finally a bioeconomic model is applied to analyze potential gains from cooperation in high seas fisheries.     

Australian practice in respect of the continental shelf beyond 200 nautical miles

Australia׳s remote location and position on the vast Indo-Australian plate mean that possesses one of the largest continental shelf areas in the world. The criteria in Article 76 of the United Nations Convention on the Law of the Sea permit the claiming on continental shelf to 200 nautical miles from territorial sea baselines, and if certain criteria are met based on the configuration and content of the seabed, to distances beyond. During the negotiations at UNCLOS III, Australia was a strong proponent of this extended shelf regime, as it was likely to have large areas beyond 200 nautical miles. Article 76 provides for a number of requirements to be met for a coastal State to assert sovereign rights over areas of continental shelf beyond 200 nautical miles, including a ten year deadline from becoming a party. This placed a disproportionate burden upon Australia, as it faced the same ten year time frame to lodge data with the Commission on the Limits on the Continental Shelf (CLCS) as other States with much smaller areas in issue. Australia also chose not to rely upon measures agreed between State parties to effectively extend this deadline, and to limit the requirements to be met within it. This paper looks at how Australian authorities approached the difficult task, while maintaining the standards required for data by the CLCS, and how the task was ultimately implemented. It also examines how the extended continental shelf arrangements interacted with the rest of Australia׳s law of the sea practice and maritime boundaries with other States. For example, after the entry into force of the Convention, Australia negotiated two maritime boundaries with neighbouring States that each explicitly dealt with areas beyond 200 nautical miles. It concludes with consideration of what issues remain unresolved in respect of the Australian continental shelf beyond 200 nautical miles. The paper will conclude at how Australia׳s implementation has raised new issues with neighbouring States, including an unresolved dispute in the South Pacific Ocean.