Exclusive Economic Zone (EEZ)

25 October 2012 | Article

 

Fr

The Exclusive Economic Zone (ZEE) is one of the major innovations in the law of the sea, and of the UNCLOS in particular.

It was born of a political demand strongly expressed by countries undergoing development, especially African states, which were not prepared to allow the unlimited removal of halieutic resources in the vicinity of their territorial seas (TS). In a context of legal uncertainty (the breadth of the TS had not yet been established in international law), many countries had begun to create territorial seas at considerable distances from their coasts in order to assert their total control of the resources in question.

The EEZ, a formula based on compromise, was recognized by the Conference on the Law of the Sea in 1976: the Convention confirmed the success of this undertaking [1].

The EEZ's legal regime is characterized as follows:

— the EEZ is an area beyond and adjacent to the territorial sea: it can extend to a maximum 200 nautical miles from the baselines.

— within the EEZ, a coastal State enjoys sovereign rights over its natural resources. It can exercise its jurisdiction over certain activities for the purpose, among others, of protecting the environment. But it is also obliged to respect the rights of other States (thanks to the maintenance of certain freedoms laid down by the law of the high seas, such as freedom of navigation).

In the Mediterranean, the greatest distance between opposite States is no more than 400 nautical miles. But apart from this detail regarding breadth, all the characteristics of the EEZ can be applied to it.

The EEZ [2] should be analyzed as a concept with three dimensions: the surface, water column, seabed (and its subsoil). The interconnection of these three elements makes the EEZ particularly complex, a marine area which is, in fact, a unique phenomenon. It is of a functional nature (it does not involve any territorial control, as does the territorial sea) and encompasses three kinds of legal situations: the sovereign rights of the coastal State, its jurisdiction, and freedom for other States.

 

The EEZ and sovereign rights

The coastal State exercises its sovereign rights over the natural resources (living or non-living) in waters superjacent to the seabed and its subsoil. These sovereign rights pertain to exploration, exploitation, conservation and management of these resources.

"Sovereign rights" means rights which are exclusively exercised by the coastal State. It is the only one that can exploit them: no other State may pursue any exploitation without its authorization or as per the terms it may have defined. The coastal State can go as far as deciding not to exploit, or prohibiting the exploitation of, the natural resources of its EEZ.

Sovereign rights are equivalent to sovereignty within a specific field - here, the management of resources -, therefore, a maritime area, as such, escapes the overall sovereignty of the coastal State, which only disposes of the sovereign right to appropriate its natural resources (cf. Jurisdictionalisation).

The economic finality of the EEZ is self-evident, as the coastal State's sovereign rights extend to exploration and exploitation activities for economic purposes. The few examples (production of energy from water, currents and winds) given in the Convention [3] do not cover the entire list of activities placed under the regime of sovereign rights, no more than they indicate that such activities are limited to the field of marine energy.

 

The EEZ and jurisdiction

Two aspects are to be considered with regard to the notion of jurisdiction: firstly, the nature of the powers involved and, secondly, the causes behind the process of jurisdictionalisation. The coastal State's jurisdiction over the EEZ is its empowerment to control activities which make use of the marine environment and which can only be developed in accordance with the conditions it has laid down. However, jurisdiction extends sovereign rights without being merged with them. It can only be exercised on condition that an EEZ has been previously created under the coastal State's national law. This condition regarding creation is absolutely essential; without it, the coastal State does not have an EEZ (whereas it will always have a continental shelf [4]).

Three activities are placed under the State's jurisdiction within the EEZ [5]:

— the creation and use of artificial islands, installations and structures;

— marine scientific research;

— the protection and preservation of the marine environment.

It is indeed within the framework of the EEZ that one can assess the extent of the obligation for cooperation between States with regard to protection and preservation of the marine environment [6] and research [7].

 

The EEZ and the rights of other States

The Convention itself states that the EEZ is subject to a specific legal regime [8]. It is not an inherited marine area like the territorial sea, but effectively an ambivalent area in which other States benefit from certain freedoms applicable to the high sea [9] (freedom of navigation and overflight, freedom to lay submarine cables and pipelines) [10]. The EEZ regime is not "chemically" pure: it goes back and forth and makes explicit reference to the rules of the high sea [11], which also prevail on each occasion when they do not come up against the coastal State's recognized sovereign rights and jurisdiction.

 

Offshoots of the EEZ

While the EEZ has been acknowledged worldwide since 1976, its appearance as an area for jurisdiction in the Mediterranean is a more recent phenomenon which is now developing after a long phase of rejection with regard to jurisdiction. For a long period of time, this refusal took the form of a principle of abstention of a political kind, without any legal basis (cf. Jurisdictionalisation, Delimitation).

Today, however, throughout the entire region, a trend has appeared to create areas which borrow inspiration from the EEZ but do not exercise all the competences related to it. Thus, under the ægis of the UNCLOS and with explicit reference to the EEZ, the following entities have come into being: the Halieutic Protection Zone (HPZ) for Spain (1997), the Ecological Protection Zone (EPZ) for France (2003), followed by Italy. Croatia came up with a synthesis of the two by setting up a Halieutic and Ecological Protection Zone.

However, delimitation can cause a problem when it comes to having these zones evolve into EEZs. In fact, even the overlapping of areas in which coastal States have only so far claimed partial competence - with a consensual view towards fighting pollution or illegal fishing (IUU)* for example - can be the subject of relative consensus or not cause any serious tension. On the other hand, any initiatives to transform these zones into EEZs - in respect of Sovereignty, exclusive exploitation of any hyrdocarbon resources etc. - lead to an imbroglio quite likely, at least at first glance, to make prospects for regional governance somewhat opaque (cf. Jurisdictionalisation, Delimitation, Cooperation…). (Fig.2).

 


[1] UNCLOS, part V.

[2] Articles 55, 56, 57 and 58 of the UNCLOS are a kind of "identity card" for the EEZ.

[3] UNCLOS, article 56.

[4] It was, in fact, an a contrario interpretation of article 77 of the Convention that gave rise to the conclusion that, in order to exist and give sovereign rights to a coastal State, an EEZ must have been created. UNCLOS, article 77 : "The rights of the coastal State over the continental shelf do not depend on any express proclamation".

[5] UNCLOS, article 56.

[6] UNCLOS, part XII, article 192.

[7] UNCLOS, part XIII, in particular from article 246.

[8] UNCLOS, article 55.

[9] UNCLOS, part VII "High Sea".

[10] UNCLOS, article 58.

[11] UNCLOS, articles 88 to 115.


Mediterranean landscape