DR.

RAM MANOHAR LOHIA NATIONAL

LAW UNIVERSITY, LUCKNOW

PUBLIC INTERNATIONAL LAW

FINAL DRAFT

TOPIC: EXCLUSIVE ECONOMIC ZONE

Submitted to- Submitted by-

Mr. Abdullah Nasir Tulika Gupta

Assistant Professor of Law, Roll no.-180101150

Dr. Ram Manohar Lohia National law [Link].B. (Hons.) 2nd year

University, Lucknow IV semester

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 ACKNOWLEDGEMENT

“Words can never convey what deeds have done.”

Writing a project is never a single man’s job. I am overwhelmed in all humbleness and
grateful to acknowledge my depth to all those who have helped me to put ideas, well above
the level of simplicity and into something concrete.

I am very thankful to my law professor Mr. Abdullah Nasir for her valuable help. He was
always there to show the right track when I needed his help. With the help of his valuable
suggestions, guidance and encouragement, I was able to complete this project. I would also
like to thank my friends, who often helped and gave me support at critical junctures during
the making of this project.

I hope you will appreciate the hard work that I have put in this project.

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 TABLE OF CONTENTS

INTRODUCTION......................................................................................................................4

LIMIT OF EXCLUSIVE ECONOMIC ZONE.........................................................................5

RIGHTS AND DUTIES OF COASTAL STATE.....................................................................6

RIGHTS AND DUTIES OF OTHER STATES........................................................................9

RIGHTS OF LANDLOCKED AND GEOGRAPHICALLY DISADVANTAGED STATES

..................................................................................................................................................11

INDIAN POSITION................................................................................................................12

CONCLUSION........................................................................................................................14

REFERENCES.........................................................................................................................15

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 INTRODUCTION

The EEZ was also known as patrimonial sea during its generic phase. Its aim is to secure
resources of the sea, the seabed and the subsoil for the coastal states irrespective of the
variations in the geological or ecological or the economic conditions. The UNCLOS III is the
parent to the concept of EEZ.

Two proposals were given to the Seabed Committee. Under the heading ‘Patrimonial Sea’,
Venezuela, Mexico and Colombia introduced a draft article which was the product of the
Santo Damingo Declaration of 1972, according to which “the coastal state has sovereign
rights over the renewable and non-renewable natural resources which are found in waters, in
the seabed and in the subsoil of an area adjacent to the territorial sea called ‘patrimonial sea’.
The outer limit of the patrimonial sea shall not exceed 200 nautical miles from the applicable
base line”. The second proposal was introduced by Kenya in 1972 which received support by
most of the then Asia’s, Africa’s and South America’s developing nations. India was one
among the chief supporters.1

A few developed countries, however, opposed the concept of EEZ in the Seabed Committee.
The concept of EEZ was opposed especially by Japan and Soviet Union. It was contended
that with the establishment of the concept of EEZ the characteristics of the that part of high
sea in which all the stated had the freedom of fishing, guaranteed by customary international
law and by the Geneva Convention of 1958, would change. The Japanese representative
argued the on ground that establishing EEZ would mean that a few nations had the exclusive
right over the major fishing grounds of the world as the most lucrative fishing grounds were
to be found off the post selective nations. Another argument against EEZ came from Soviet
Union on the ground that in case of non-conservation of biological resources of the sea or
their irrational exploitation by the coastal state, it would lead to non-realisation of the
optional catch.

Finally, the concept of EEZ found its place in the Seabed Committee due to overwhelming
support it received from the developing as well as developed nations as by the time UNCLOS
III assembled at CARCAS in 1974 the opposition to the concept of EEZ faded away. India
along with Mexico, Iceland, Chile, Mauritius and other few nations introduced the proposal
of claiming exclusive right for exploring and exploiting the renewable and the non-renewable
1
UN DOC. A/AC/138/[Link]/SR42.

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resources falling within 200 nautical miles zone. At Geneva session of UNCLOS III in 1975,
the concept was incorporated in the Informal Single Negotiating Text which bestowed the
coastal state with certain rights in an area of the sea which ran beyond the territorial waters,
the breadth of which would not exceed 200 nautical miles. The disadvantaged states and also
neighbouring landlocked nations also would have right over the surplus fisheries. It finally
found place in the UNCLOS of 1982.

LIMIT OF EXCLUSIVE ECONOMIC ZONE

The basic provisions with regards to the legal scheme of EEZ run from Article 55 to Article
75 of the UNCLOS III, 1982. Article 55 defines the zone as: “Specific legal regime of the
exclusive economic zone 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.” 2 Article 57 of the Convention lay
down the breadth of the zone: “Breadth of the exclusive economic zone The exclusive
economic zone shall not extend beyond 200 nautical miles from the baselines from which the
breadth of the territorial sea is measured.”3

INDIAN POSITION

The Indian Maritime Zones Act 1976, also endorses an EEZ of 200 nautical miles. The Act
clearly states that EEZ of India is an area beyond and adjacent to the territorial waters, and
the limit of such zone would be 200 nautical miles from the baseline. 4 It further provides that
the Central Government may, whenever it considers necessary so to do having regard to
international law and state practice, alter, the limit of EEZ of India by issuing notification in
the Official Gazette. It states that to make such an alteration a resolution approving it shall be
passed by both the Houses of Parliament.

2
United Nations Convention on the Law of the Sea 1982, art. 55.
3
United Nations Convention on the Law of the Sea 1982, art. 57.
4
The Indian Maritime Zones Act 1976, sec. 7.

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 RIGHTS AND DUTIES OF COASTAL STATE

EEZ encompasses two kinds of regions:

1. The water column.
2. The seabed and the subsoil beneath the water column.
i. The area in the latter category is called Continental Shelf which in many cases
stretches beyond the 200 nautical miles limit. However, the rights and duties of the
coastal state are limited to the water column and the sea bed beneath the water column
stretching up to 200 nautical miles from the base line.
Article 56 of the UNCLOS 1982 reads as:
“Rights, jurisdiction and duties of the coastal State in the exclusive economic zone

1. In the exclusive economic zone, the coastal State has:

a) 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;
b) jurisdiction as provided for in the relevant provisions of this Convention with regard
to:
i. the establishment and use of artificial islands, installations and structures;
ii. marine scientific research;
iii. (iii) the protection and preservation of the marine environment;

c) other rights and duties provided for in this Convention.

2. In exercising its rights and performing its duties under this Convention in the exclusive
economic zone, the coastal State shall have due regard to the rights and duties of other
States and shall act in a manner compatible with the provisions of this Convention.

3. The rights set out in this article with respect to the seabed and subsoil shall be exercised in
accordance with Part VI.”5

Article 56 points out two kinds of right of the coastal state. Firstly, 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,

5
United Nations Convention on the Law of the Sea 1982, art. 56.

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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. Secondly, other rights
and duties provided for in this convention. Article 56 also confers jurisdiction to the coastal
state concerning: i) the establishment and the use of artificial islands, installation and
structures; ii) marine scientific research; iii) the protection and preservation of marine
environment. It clearly lays down that the coastal state, while exercising its rights and
performing its duties in the EEZ, should have due regard to the rights and duties of other
States and shall act in a manner compatible with the provisions of this Convention.

In Aban Loyd Chiles Offshore Ltd. V. Union of India 6, a question was raised with regards to
whether custom duty under relevant legislation could be imposed in the exclusive economic
zone. The Supreme Court answered in affirmative after considering relevant provisions of
UNCLOS 1982. The court observed: “71. With the adoption of UNCLOS, 1982, the legal
incidents of the high seas have been partly modified. UNCLOS, 1982 is a comprehensive
code on the international law of sea. It codifies and consolidates the traditional law within a
single, unificatory legal framework. It has changed the legal concept of continental shelf and
also introduced a new maritime zone known as exclusive economic zone. Exclusive economic
zone is a new concept having several new features. What is significant for our purpose is that
the coastal State has in its zone only sovereign rights of exploitation of the resources and not
sovereignty in the sense of territoriality or dominium. Exclusiveness attaches to resources
exploitation only but does not incorporate the ownership of title of the coastal State.

72. It is a concept of restricted sovereignty linked to the resources sense sans the incidents of
territoriality. This is so because, in other respects, the status of the waters in this area as a
part of the high seas is specifically recognized and retained in the Convention.

73. In the exclusive economic zone, the coastal State has exclusive right to exploit for
economic purposes like constructing artificial islands or other platforms or drilling rigs for
oil and mineral exploration and other purposes like fishing, scientific research, etc but the
same is subject to the navigation and over-freight rights of non-coastal States.”

UNCLOS 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 EEZ cannot pursue a policy of inaction with respect to
its living resources. Thus, the coastal state must ensure that the resource is not endangered by

6
Aban Loyd Chiles Offshore Ltd. v. Union of India, (2000) 11 SCC 439.

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over-exploitation and it must do this through proper conservation and management. 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.7

7
United Nations Convention on the Law of the Sea 1982, art. 61 cl. 2.

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 RIGHTS AND DUTIES OF OTHER STATES

The rights and duties of other States in the EEZ are set out in Article 58 of UNCLOS. Of the
four high seas freedoms specifically mentioned in the 1958 High Seas Convention, fishing
now comes within the jurisdiction of the coastal State. The remaining freedoms of navigation,
overflight and laying of submarine cables and pipelines are recognized in the EEZ, although
subject to greater limitations than the high sea freedoms. Article 58 provides that in the EEZ
all States enjoy:

“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
these freedoms, such as those associated with the operation of ships, aircraft and submarine
cables and pipelines, and compatible with the other provisions of this Convention”8

The phrase beginning with “other internationally lawful uses of the sea” was subject to much
negotiation at the Third United Nations Conference leading to the adoption of UNCLOS.
Like article 87, it does not expressly mention military activities or survey activities, but the
naval powers maintain that the language was intended to ensure that traditional freedoms of
the seas in article 87 were preserved in the EEZ.9

Paragraph 3 of article 58 provides that other States have two duties when exercising their
rights in the EEZ. First, they have a “due regard” obligation similar to that of coastal States.
In exercising their rights in the EEZ, other States must have due regard to the rights and
duties of the coastal State in the EEZ. They need not have due regard to the interests of the
coastal State, only to the rights and duties, which are limited to rights to the natural resources
and other economic activities. Thus, there is no obligation on other States to give due regard
to the security interests of the coastal State in its EEZ.

Second, other States must comply with the laws and regulations adopted by the coastal State,
but only such laws that are in accordance with the provisions of the Convention and other
rules of international law, and only in so far as they are not incompatible with the UNCLOS
provisions on the EEZ. Therefore, if a coastal State adopts laws and regulations on matters

8
United Nations Convention on the Law of the Sea 1982, art. 58 cl. 1.
9
George V. Galdorisi and Alan Kaufman, “Military Activities in the Exclusive Economic Zone: Preventing
Uncertainty and Defusing Conflict,” California Western International Law Journal 32 (2001-2002): 253 – 302,
272.

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over which it does not have jurisdiction under UNCLOS, there is no obligation on other
States to comply with such laws and regulations.

RESIDUAL RIGHTS AND JURISDICTION

Article 59 addresses matters not specifically attributed to coastal States or other States:

“Article 59. Basis for the resolution of conflicts regarding the attribution of rights and
jurisdiction in the exclusive economic zone.

In cases where this Convention does not attribute rights or jurisdiction to the coastal State or
to other States within the exclusive economic zone, and a conflict arises between the interests
of the coastal State and any other State or States, the conflict should be resolved on the basis
of equity and in the light of all the relevant circumstances, taking into account the respective
importance of the interests involved to the parties as well as to the international community
as a whole.”10

Several points should be noted about this provision. First, it acknowledges that there may be
rights or jurisdiction in the EEZ attributed to neither the coastal State or other States in the
EEZ. Second, it reinforces the sui generis nature of the EEZ regime. If there are rights that
are not covered by the rights of either the coastal State or the rights of other States, there is no
presumption in favour of either the coastal State or other States. 11 Each case will have to be
decided in view of the circumstances of the case and taking into account the criteria in Article
59.12 Third, the Article does not refer to any specific procedure for resolution of the conflict,
however, it has been suggested that it includes both negotiations as well as recourse to the
dispute settlement procedures in Part XV.13

10
United Nations Convention on the Law of the Sea 1982, art. 59.
11
Churchill and Lowe, The Law of the Sea, 176.
12
The Virginia Commentary states that “Given the functional nature of the exclusive economic zone, where
economic interests are the principal concern, this formula would favour the coastal State. On issues not
involving the exploration for and exploitation of resources, where conflicts arise, the interests of other States or
of the international community as a whole are to be taken into consideration:” See Satya N. Nandan and Shabtai
Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, Volume II (United
States, 1993), 569.
13
Churchill and Lowe note that essentially, Article 59 “means that there must first be an attempt at settlement by
consensual means: if this is unsuccessful, the dispute must be referred to one of the judicial bodies listed in
article 287, unless the dispute relates to military activities and one of the parties has made a declaration under
article 298 exempting itself and settling such disputes by compulsory third-party means:” See Churchill and
Low, The Law of the Sea, 176. Similarly, the Virginia Commentary also notes that the stipulation in Article 59
for conflicts on the rights and jurisdiction of States in the EEZ to be resolved on the basis of equity and in light
of all relevant circumstances “serves as a guide for the diplomatic settlement of ‘conflicts’ as much as for the
judicial settlement of disputes.” See Nandan and Rosenne, United Nations Convention on the Law of the Sea
1982: A Commentary, Volume II, 569.

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 RIGHTS OF LANDLOCKED AND GEOGRAPHICALLY DISADVANTAGED
STATES

With respect to the newly emerged concept of Exclusive Economic Zone [EEZ], the
landlocked and the geographically disadvantaged states urged to engage, on equal and non-
discriminatory basis, exploration and exploitation of both living and non-living resources of
the area of the sea regarded as EEZ of the neighbouring coastal states. 14 This demand was
based on conceiving continental shelf as a natural prolongation of not only the coastal state
but of land mass as a whole. With regards to living resources of the EEZ, Article 69 grants
landlocked states a right to participate “on an equitable basis” in the exploration and
exploitation of the living resources of EEZ of the coastal sates of the same region or same
sub-region. However, this right is not absolute and is limited by certain requirements and
conditions. Thus, it exists only in relation to an ‘appropriate part’ of the surplus of living
resources as ascertained by the coastal state, with only exception given to developing
landlocked states.15 Furthermore, the exercise of right of landlocked states in relation to
fisheries is contingent upon additional agreements with the coastal state concerned. The terms
and modalities of such participation must be acceded through bilateral, sub-regional or
regional agreements taking into account the need to avoid effects detrimental to fishing
communities or fishing industries of the coastal State, the extent to which the land-locked
State is participating or is entitled to participate under existing bilateral, sub-regional or
regional agreements in the exploitation of living resources, the extent to which other land-
locked States and geographically disadvantaged States are participating in the exploitation of
the living resources and the consequent need to avoid a particular burden for any single
coastal State or a part of it, the nutritional needs of the populations of the respective States.16

14
Tuerk and Hafner, “The Landlocked Countries and UNCLOS” (note 8), p.62.
15
L.C. Caflisch, “Fishing Rights of Landlocked and Geographically Disadvantaged States in Exclusive
Economic Zone”, p. 41.
16
United Nations Convention on the Law of the Sea 1982, art. 69 cl. 2.

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 INDIAN POSITION

Constitutional Position

The parliament amended article 297 in 1976 through 40 th Constitutional Amendment Act.
The unamended article read:

“All lands, minerals and other things of value underlying the ocean within the territorial
waters, or the continental shelf of India shall vest in the Union and be held for the purposes
of the Union.”

Article 29717 as of today reads as:

1. “All lands, minerals and other things of value underlying the ocean within the
territorial waters, or the continental shelf, or the exclusive economic zone, of India
shall vest in the Union and be held for the purposes of the Union.
2. All other resources of the exclusive economic zone of India shall also vest in the
Union and be held for the purposes of the Union
3. The limits of the territorial waters, the continental shelf, the exclusive economic zone,
and other maritime zones, of India shall be such as may be specified, from time to
time, by or under any law made by Parliament.”

The amended article entrusts in the Union of India, the resources falling within its Exclusive
Economic Zone. This is in harmony with the provision of UNCLOS which gives sovereign
over the resources within EEZ to the coastal state.

Rights of India

The rights of India with respect to its EEZ are contained in section 7 sub-section 4 of the
Maritime Zones Act, 1976. Clause (a) of sub-section 4 corelate with Article 56(I)(a) of the
UNCLOS. Clause (b) of sub-section 4 corelate with Article 56(I)(b)(i) and 60(I) of
UNCLOS. Likewise, clause (c) of sub-section 4 on scientific research is in harmony with
Article 56(I)(b)(ii) of UNCLOS. However, clause (c) of sub-section 4 appears to deviate, in
some respect from UNCLOS when it confers on the Union exclusive jurisdiction to preserve
and protect the marine environment and to prevent and control marine pollution. It is
pertinent to remark here that this provision represents the stand taken by the developing

17
The Constitution of India 1950, art. 297.

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costal states in UNCLOS III. UNCLOS does not concede exclusive jurisdiction to the coastal
state in respect of marine pollution. However, the Convention recognises the jurisdiction of
the coastal state in this regard to the extent indicated relevant provisions.

Sub-section 6 of section 7 of the Act contains the concept of designated areas in the EEZ and
empowers the Central Government to declare any area designated area, UNCLOS does not
contain concept of designated area either in EEZ or in continental shelf. However, the
Convention allows the coastal state to establish reasonable safety zones, not exceeding the
breadth specified therein, around artificial islands, installations, and structures with EEZ and
the continental shelf, in which it may take appropriate measures to ensure safety of both
navigation and artificial islands, installations and structures.18 The Convention also provides
for the establishment of safety zones around scientific research installation. 19 In special
circumstances, the Convention permits the coastal state to designate a special area in EEZ
wherein it could take special mandatory measures for the prevention of pollution from
vessels.20

The Maritime Zones of India (Regulation of Fishing by Foreign Vessels) Act, 1981

It is pertinent to mention that in addition to Maritime Zones Act, 1976 India has also enacted
the Maritime Zones of India (Regulation of Fishing by Foreign Vessels) Act, 1981. The Act
provides for the regulation of fishing by foreign vessels in the Maritime Zones of India which
have been defined, for the purpose of the Act, as the territorial waters of India and EEZ of
India.

18
United Nations Convention on the Law of the Sea 1982, art. 6o.
19
United Nations Convention on the Law of the Sea 1982, art. 260.
20
United Nations Convention on the Law of the Sea 1982, art. 211.

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 CONCLUSION

It is fair to say that the EEZ has withstood the test of time fairly well. It is not a perfect
regime and there will of course be areas which could have been addressed in a more
comprehensive manner. Challenges or issues are inevitable but, in many instances, may be
welcomed, as they highlight areas that should be supplemented and facilitate the progressive
development of the law. As illustrated above, in most cases, UNCLOS has provided for
mechanisms to meet such challenges. The problem often does not lie with the UNCLOS
provisions themselves but with the failure or inability of States to implement or utilize these
mechanisms or interpret UNCLOS in a manner that was intended. The type of
mechanism/tool suitable to meet such challenges will depend on the nature of the challenge
and the particular circumstances of the case.

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 REFERENCES

 [Link]
 [Link]
article=1418&context=faculty_scholarship
 Zou, Kenyuan, “The Belt and Road Initiative and Law of Sea”, p. 190-191.
 [Link]
 Singh, Gurdip. “International Law”, ed. 3, p.376-394.

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