rights and duties of other state on eez-los seminar2

7/29/2019 Rights and Duties of Other State on EEZ-Los Seminar2

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Rights and duties of other state on EEZ

Given the expansion of the sovereign rights and jurisdiction of coastal states in the EEZ

achieved by the LOSC there was an awareness of the need to protect the interests of other

states, particularly the major naval powers and states with large merchant and fishing fleets.

Whereas the EFZs claimed by many states prior to the emergence of the EEZ concept at

UNCLOS III interfered only with the high seas freedom to fish and to conduct fisheries

research, the EEZ regime apportioned to coastal states far broader powers that needed to

be tightly circumscribed.

Article 58 is the key provision in Part V that seeks to safeguard the interests of the majormaritime states.

First, in relation to rights, Article 58(1)provides that in the EEZ all states, whether coastal

or landlocked, enjoy the freedoms identified in Article 87 of navigation and overflight, the

laying of submarine cables, and pipelines, and 'other internationally lawful uses of the sea

related to these freedoms'.

Further, Article 58(2) states that several provisions of the LOSC (Articles 88 to 115) relating

to the high seas apply in the EEZ to the extent that they are compatible with Part V. These

provisions go to issues such as the nationality of ships, the duties of flag states, the

immunity of warships, and the suppression of piracy.

Secondly, in respect to the duties of states other than coastal states, Article 58(3)

stipulates that due regard must be had to the rights and duties of the coastal State, and

there must be compliance with the laws and regulations adopted by the coastal State in

conformity with the LOSC.

- A) Navigation and OverflightArticle 58(1) imports into the EEZ regime the high seas freedoms of navigation and

overflight referred to in Article 87.

This means that in the EEZ the navigational and overflight rights accorded to states other

than coastal states are akin to those rights as enjoyed on the high seas, and attempts by

some states parties to the LOSC to limit these rights in the EEZ by defining them as rights of

innocent passage.


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Nonetheless, it is clear that the rights of navigation and overflight in the EEZ are not as

extensive as those exercisable on the high seas given the regulatory powers accorded to

coastal states by Part V.

-Coastal states may stop and search any fishing vessel to ensure compliance with its

fisheries laws adopted in conformity with the Convention, on the proviso that arrested

vessels and their crews are to be released promptly on the posting of a reasonable bond.

-Coastal states may also lawfully pass pollution control legislation consistent with

applicable international standards, and take enforcement action in respect of egregious

breaches.

-It is also possible for coastal state regulation of EEZ fisheries to impose some fetters on

the freedom of navigation by merchant vesselsthrough sensitive marine environments

essential for the health of fisheries such as coral reefs, although no provision in Part V isexplicit on this point. A clearer example of the potential for coastal state jurisdiction to

limit navigational rights in the EEZ is in relation to artificial islands, installations and

structures which will inevitably have some impact on navigation, although Article 60(7)

seeks to limit this by prohibiting the establishment of such facilities within recognised sea

lanes essential to international navigation.

Navigation

Article 58(1) provides that in the EEZ all States enjoy 'the freedoms referred to in article 87

of navigation' and 'other internationally lawful uses of the sea related to' this freedom

compatible with the other provisions of the Convention.

This freedom is subject to a number of limitations.

First, the freedom may possibly be subject to the general limitation governing all freedoms

of the high seas set out in article 87(2) - namely, that these freedoms must be exercised'with due regard for the interests of other States in their exercise of the freedom of the

high seas'.

The uncertainty arises because of the rather oblique and ambiguous reference in article

58(1) to article 87, which is located in Part VII of the convention dealing with the high seas.

Secondly, under article 58(2) freedom of navigation in the EEZ, is subject to the provisions

of articles 88 to 115 of the Convention and other relevant rules of international law which

deal with navigation on the high seas, in so far as they are not incompatible with the

Convention's provisions on the EEZ.


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There are two further limitations on freedom of navigation in the EEZ not explicitly

mentioned in the Convention but which are implicit in its provisions.

First, foreign shipping is subject to the coastal state's powers of pollution control.

Secondly, foreign ships may be affected by the presence of artificial islands and

installations - although, as we have seen such structures may not be placed in 'recognised

sea lanes essential to international navigation'.

Overflight

Article 58 provides that all States enjoy freedom of overflight in the EEZ, and 'other

internationally lawful uses of the sea related to' this freedom compatible with the

provisions of the Convention. This freedom is subject to the first two limitations to which

the freedom of navigation is subject, namely due regard for other States, and articles 88 to

115, etc. (although many of these articles have no application to aircraft).

In addition, the freedom is implicitly subject to two further possible limitations. First, the

coastal State's right to construct artificial islands and installations might effectively

prevent low flying in the vicinity of such structures. Secondly, aircraft are subject to

coastal State's competence to regulate the dumping of waste.

Given the attitude of some States, such as Brazil, to military activities in their EEZs, there

may also be some uncertainty about the use of the EEZ by foreign military aircraft for the

purpose of military exercises.

There is one further matter of importance about which there is also uncertainty, and that

is the rules of the air which apply to aircraft in the EEZ. Under Article 12 of the Convention

on International Civil Aviation 1944, aircraft over the 'high seas' must comply with the Rules

of the Air laid down by the International Civil Aviation Organization (ICAO).

Over a State's territory and territorial sea, however, aircraft must comply with that State's

regulations, which may diverge from ICAO rules (art. 38 of the 1944 Convention).

-WITH REGARD TO BOTH NAVIGATION AND OVERFLIGHT

i. Environmental Security

Part V permits the freedom of navigation to be curtailed in regulating marine pollution.


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However, since the conclusion of the LOSC there has been some creeping of jurisdiction

with several states relying on the environmental jurisdiction they possess in the EEZ to

object to the passage by foreign vessels carrying ultra-hazardous cargoes, particularly

nuclear materials in transit to power plants, reprocessing facilities or to repositories for

disposal.

Some states assert that the risk of environmental harm is so great that they are entitled not

only to be notified of planned voyages of vessels carrying such cargoes (a right of 'prior

notification'), but may even deny passage through their EEZs (a right of 'prior informed

consent').

Voyages carrying nuclear materials between Europe and Japan since the 1990s have

provoked significant controversy, with states including Argentina, Chile, Antigua and

Barbuda, Colombia, the Dominican Republic, New Zealand, South Africa and Mauritius

claiming a right to exclude these vessels from their territorial seas and also their EEZs.

The capacity of coastal states unilaterally to regulate the transport of oil within their EEZs

consistent with the LOSC has also been a point of contention. Following the break up of the

oil tanker Prestige off the coast of Spain in November 2002, which resulted in substantial

damage along the French, Portuguese and Spanish coastlines, these three states established

new controls requiring oil tankers to give advance notice before travelling through their

EEZS' and allowing for spot inspections in their EEZs of single-hull tankers more than 15

years old, and summary expulsion from these waters if found on inspection to be

unseaworthy. As these measures were, at the time, stricter than the international standardsset under the auspices of the IMO they were not consistent with the requirements of Article

211 of the LOSC.

The difficulty for those states seeking notice of shipments of certain dangerous substances,

or which reserve the right to exclude particular vessels carrying these materials, is that Part

V contains no provision that allows coastal states to regulate the transport of goods per se.

Accordingly, foreign vessels carrying hazardous materials appear entitled to navigate freely

in the EEZ.

It is relevant here that Article 23 clearly permits such voyage within the territorial sea,

subject to special obligations to 'carry documents and observe special precautionary

measures established for such ships by international agreements'. Despite the silence of

Part V on the subject, it would be curious if the same rights afforded in the territorial sea

were not also applicable in the EEZ. Alternatively, it may be argued that Part V should be

read as far as possible consistently with Part XII which allows (and indeed requires)

coastal states to protect the marine environment within their EEZs.

Several states have also argued that rules and principles of international environmental law

have application in this context, as seen in New Zealand's invocation of the precautionary


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principle to contest the legality of shipments of nuclear cargoes by Japanese vessels

through New Zealand's EEZ.

ii. Military Security

Since the conclusion of the LOSC there has been a growing body of practice indicating the

willingness of coastal states to interfere with navigational rights and freedoms on grounds

of maritime security, particularly since the 2001 terrorist attacks in the United States.

One of the more dramatic illustrations of this practice look place six months prior to those

events, when a United States Navy EP-3 reconnaissance aircraft collided with a Chinese F-8

fighter aircraft that had intercepted the EP-3 in China's EEZ, around 70 nm south-east of

China's Hainan Island. The Chinese pilot died when his aircraft crashed into the sea;

however the EP-3 managed to make a distress landing at a Chinese military base on Hainan.

The Chinese government detained the aircraft and its crew, and contended that the United

States had abused the rights of overflight in the EEZ and failed to have 'due regard to the

rights and duties' of China as the coastal state, as required by Article 58(3) of the LOSC.

China specifically asserted a right to interfere with EEZ overflight by foreign aircraft posing a

threat to the natural security of China. This incident raised the issue as to the effect of

Article 58, which applies high seas navigational and overflight rights in the EEZ.

The EEZ regime does not expressly authorise foreign states to carry out surveillance or

other military activities such as military exercises or weapons testing, but neither does it

prohibit such uses of the EEZ.

Some states have nonetheless also maintained that weapons testing cannot lawfully be

carried out in the EEZ.

However, it is significant that the freedoms set out in Article 87 are referred to as main

examples of high seas freedoms, rather than the only such freedoms. Moreover, thesefreedoms are to be exercised subject to conditions set not only by the LOSC but also 'other

rules of international law'.

The only express condition set down in Articles 58(3) and 87(2) is the vague stipulation that

foreign states must have 'due regard' to the rights and duties of coastal states and other

states. And the reference in Article 87 to 'other rules of international law' would seem to

suggest that general international law can be turned to in determining the legitimate uses to

which the high seas and the EEZ may be put. As such there would be a dear prohibition on

the carrying out of activities in the EEZ that constituted a threat or use of force contrary to

the United Nations Charter.


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On the other side of the coin is the issue whether coastal states may assert any kind of

security jurisdiction in the EEZ.

Many states have done so, prohibiting not only military exercises, manoeuvres

(maneuvers) and weapons testing, but also seeking to restrict navigation and overflight in

the EEZ more generally in the interests of national security such as to prevent the

proliferation of weapons of mass destruction (WMD).

Other states have sought to impose lesser restrictions. An example is the Australian

Maritime Identification System announced in 2004, under which Australian authorities seek

information from vessels making for Australian ports when entering a 'Maritime

Identification Zone' 1000 mn from an Australian coastline, and all vessels, except day

recreational vessels, entering the Australian EEZ. The stated purpose of the system is to

enhance the quality of maritime surveillance and protect the resource and national security

interests of Australia.

Information sought from vessels entering the EEZ for the purposes of fisheries protection

is likely to be regarded as consistent with Part V given the broad powers given to coastal

states over marine living resources in the EEZ.

However, as the information is sought from all vessels, and not only fishing vessels, this

raises the question of whether the system interferes with the rights of other states in the

EEZ, contrary to Article 58.

The mere request for information is unlikely to amount to such an infringement; however

an attempt to prevent passage by a ship that has refused to provide such information would

be, unless the vessel concerned is reasonably suspected to be intending to violate valid

coastal state laws relating to marine resources, or pollution. One argument that has been

made in favour of the legality of the monitoring of all vessels in the EEZ is that it may be an

assertion of an unattributed right consistent with Article 59 if directed to suppressing

activities such as terrorism, which could legitimately be regarded as an issue of importance

to the international community as a whole.

- B. Submarine Cables and PipelinesIn addition to navigation and overflight rights, Article 58(1) also refers to the rights of

other states to lay submarine cables and pipelines in the EEZs of coastal states.

These rights are elaborated in several provisions of Part VII concerning the exercise of such

rights on the high seas, to which Article 58(2) cross-refers. As a result, flag states must take


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responsibility to ensure that their vessels and nationals do not willfully, or through

culpable negligence, break or injure a cable or pipeline.

The laying of a submarine cable or pipeline within the EEZ also necessarily brings into

application the continental shelf regime as such infrastructure is laid on the seafloor.

There is in Article 76(3) a pertinent restriction on the freedom in Article 58(1) to lay cables

and pipelines, in that the course that this infrastructure may follow is made subject to the

consent of the coastal state.

Thus it can be said that, all States enjoy the freedom of laying submarine cables and

pipelines in the EEZ, and 'other internationally lawful uses of the sea related to' this

freedom compatible with the other provisions of the Convention.

This freedom is subject to the first two limitations to which the freedom of navigation is

subject, namely due consideration for the interests of other States and articles 88 to 115

of the Convention.

While many of these articles have no application to cables and pipelines, articles 112 to 115

are specifically concerned with them, dealing principally with the question of their being

broken or damaged.

In addition, there is a further explicit limitation contained in article 79. Although this

article is in the part of the Law of the Sea Convention dealing with the continental shelf, it

must also apply to the EEZ, since the sea bed of the EEZ consists of the continental shelf.

Article 79(3) provides that 'the delineation of the course for the laying of pipelines (but not

cables) is subject to the consent of the Coastal State.

Article 79(4) empowers the coastal state to lay down conditions for cables and pipelines

entering its territorial sea, and to establish its jurisdiction over cables and pipelines

constructed on or used in connection with the exploration and exploitation of its continental

shelf or the operations of artificial islands and installments under its jurisdiction.

Furthermore, two states -Cape Verde and Sao Tome e Principe - purport to make the layingof both cables and pipelines as such, rather than simply the delineation of the course of

pipelines, subject to their prior consent.

In conclusion, the effect of the above provisions is that the rights of other

states to navigate, overfly and lay cables and pipelines in a coastal states EEZ

are less extensive than their corresponding rights on the high seas.

rights and duties of other state on eez-los seminar2

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