Continued from last week
The development of the concept of the exclusive economic zone has, to some extent, confused the issue, since under article 56 of the 1982 Convention, the coastal state has sovereign rights over all the natural resources of its exclusive economic zone, including the seabed resources, although claims with regard to the economic zone, in contrast to the continental shelf, need to be specifically made. It is also possible that the geographical extent of the shelf may be different from that of the 200-mile economic zone.
Similarly, in the case of the continental shelf, while the 1982 Convention gives all coastal state 200 miles on the basis of a distance criterion irrespective of the question of natural prolongation of its land territory under the sea, nevertheless, it makes provision that in respect of the exploitation of the non-living resources of the continental shelf beyond 200 miles, payments and contributions have to be made to the Seabed Authority, which shall distribute them to the state parties to the Convention on the basis of equitable sharing criteria, taking into account the interests and needs of developing states particularly the least developed and landlocked among them.
Continental Shelf of Sri Lanka
The Continental shelf of Sri Lanka is taken to mean the natural prolongation of the territory of Sri Lanka, under the sea and includes the shelf proper, the slope and the rise, constituting what is termed continental margin. Sri Lanka’s Maritime Zones Law of 1976 which defines continental shelf was modeled on the corresponding provisions of the Basic Negotiating Text of the Third UN Conference on the Law of the Sea.
Instead of the definition as set out in the 1958 Convention, it states that the Continental Shelf of Sri Lanka shall comprise ‘(a) the seabed and the subsoil of the submarine areas that extend beyond the territorial sea of Sri Lanka throughout the natural prolongation of the land territory of Sri Lanka to the outer edge of the continental margin or to a distance of 200 nautical miles from the baseline from which the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance’.
So that in the Sri Lanka definition, the exploitability criterion has been done away with, as also the 200 metre depth, which related only to the continental shelf. Instead, there is a reference to the continental margin or a distance criterion of 200 nautical miles where the continental margin does not extend up to that limit. This, however, would not be applicable to some sectors of the continental margin of Sri Lanka which in the Eastern and Southeastern coasts, extends far beyond 200 nautical miles. It was this factor which has militated towards the specific method of delimitation, which is to be applied to Sri Lanka’s continental shelf in the Bay of Bengal, under ‘Statement of Understanding’ which is part of the final Act attached to the 1982 Convention.
While the Sri Lanka legislation on the continental shelf contains the main features of the new definition, the final form of this definition as set out in article 76 of the UN Convention contains a much more detailed formulation of the natural prolongation concept, and is further combined with an additional distance and sediment thickness criterion. While the basic constituents of the definition have remained constant and paragraph 1 of 1976 is almost verbatim the same as the definition in the Maritime Zones Law, it has been explained and qualified in paragraphs 2-8 of the same article.
The continental margin is defined as comprising the submerged prolongation of the land mass of the coastal state and consists of the seabed and subsoil of the shelf, the slope and the rise. However, its full scope is restricted by the provisions of paragraphs 4 to 6. Paragraph 4 sets out a distance and sediment thickness criterion so that the extent is determined by the thickness of the sediment at a particular point, i.e. where ‘the thickness of sedimentary rock is at least 1 percent of the shortest distance from such point to the foot of the continental slope’, so that, for example, a state wishing to claim an area of 100 kilometres from the base of its slope must have not less than one kilometre of sediment thickness at this point. But as some states had very wide margins, it was thought necessary to have a cut off point which is fixed at 350 nautical miles, vide paragraph 5. Paragraph 7 provides that the outer limits shall be delineated by strait lines not exceeding 60 nautical miles connecting fixed points.
This definition incorporates what was called the Irish proposal advanced by a group of countries at the Conference, known as “Margineers’ for the reason that they had wide margins. The Soviet Union and some of the socialist countries thought that this could lead to a creeping jurisdiction, and hence a limit of 350 miles was proposed by them and this incorporated into the final draft. Hence the final definition in which exploitability finds no place includes a minimum distance of 200 miles which is irrespective of the extent of the continental margin itself, as expressly stated in paragraph 1 and is, therefore, not based on the theory of natural prolongation but on a distance criterion.
Together with this, there is also the natural prolongation criterion which is calculated on the Irish formula which is, however, is once again qualified by a limit of 350 miles, which is an arbitrary limitation, based on a pre-determined distance from the coast. The 200 mile minimum as stated earlier also overlaps with the Exclusive Economic Zone. So that up to 200 miles both regimes would operate, but beyond that limit and up to 350 miles, only the continental shelf regime would be operative. However, in the case of Sri Lanka, due to the unique geomorphological features of her seabed in the region of the Bay of Bengal, a special method of delimitation has been provided for, in which the 350 mile cut off point is not operative, so that Sri Lanka’s continental shelf in this region when finally delimited could extend beyond 350 miles.
Exclusive Economic Zone
Article 55 of the 1982 Convention provides that the exclusive economic zone is an area beyond and adjacent to the territorial sea subject to the specific legal regime established under the Convention.
Under article 56, the coastal state in the economic zone has inter alia:
‘(a) sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living (see also articles 61-9) 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 with regard to (i) the architecture and use of artificial islands, installations and structures, (ii) marine scientific research (see. Further Part xiii of the 1982 Convention (iii) the protection and reservation of the marine environment.
Article 55 provides that the zone starts from the outer limit of the territorial sea, but by article 57, shall not extend beyond 200 nautical miles from the baselines from which the breadth of territorial sea is measured. Accordingly in reality, the zone itself would be no more than 188 nautical miles where the territorial sea was 12 nautical miles but rather more where the territorial sea of the coastal state was less than 12 miles. Where the relevant waters between neighbouring states are less than 400 miles, delimitation becomes necessary. Islands generate economic zones unless they consist of no more than rocks which cannot sustain human habitation.
In view of the practice of many states in accepting at one time or another a 12 – mile exclusive fishing zone, either for themselves or for some other states, it seems clear that there has already emerged an international rule to that effect. Indeed, the International Court in the Fisheries Jurisdiction Cases, stated that the concept of the fishing zone, the area in which a state may claim exclusive jurisdiction independently of its territorial sea for this purpose, had crystallised as customary law in recent years and specially since the 1960 Geneva Conference, and that ‘the extension of that fishing zone up to a 12- mile limit from the baselines appears now to be generally accepted. That much is clear, but the question was whether the international law recognised such a zone in excess of 12- miles.
This zone (See, A.P. O Connell, International Law of the Sea, E.D. Brown, International Law of the Sea,) has developed out of earlier, more tentative claims, particularly relating to fishing zones and as a result of developments in the negotiating processes leading to the 1982 Convention. It marks a compromise between those states seeking a 200- mile territorial sea and those wishing a more restricted system of coastal state power.
Article 58 lays down the rights and duties of other states in the exclusive economic zone. These are basically the high seas freedom of navigation, overflight and laying of submarine cables and pipelines. It is also provided that in exercising their rights and performing their duties, states should have due regard to the rights, duties and laws of the coastal state.
In cases of conflict over the attribution of rights and jurisdiction in the zone, the resolution is to be on the basis of equity and in the light of all the relevant circumstances. Article 60(2) provides that in the exclusive economic zone, the coastal state has jurisdiction to apply customs law and regulations in respect of artificial islands, installations and structures.
A wide variety of states have in the last four decades claimed exclusive economic zones of 200 miles. A number of states that have not made such a claim have proclaimed fishing zones. (The Hydrographic Department of the Royal Navy noted that as of January 1, 2002, 52 states and territory had proclaimed fishery zones of varying breadths upto 200 – miles.
In 1976, Sri Lanka under the Maritime Zones Law of 1976, provided for the establishment of an Exclusive Economic Zone adjacent to the territorial sea, the limits of which were to be proclaimed by the President. By the maritime zones proclamation, it was declared that the Exclusive Economic Zone of Sri Lanka shall extend to a distance of 200 miles from the baselines from, which territorial sea is measured.
The Eastern and Southern boundaries of Sri Lanka as there was no intervening land masses to the Exclusive Economic Zone have been drawn up to its full extent of 200 nautical miles. But in respect of the Western and Northern Coasts, the presence of the Indian subcontinent and of Maldives Islands towards the South West, has made it necessary to delimit the seas in this area by agreement.
The delimitation of the exclusive economic zone between India and Sri Lanka is provided for in the Boundary Agreement of 1976. The Boundary Agreement of 1974 in its title states ‘the boundary in historic waters’ and hence there is no mention of exclusive economic zone in this treaty, although mention is made of ‘the waters, the islands, continental shelf and sub soil thereof’, over which each country shall have sovereignty and exclusive control.
The 1976 Treaty on the boundary in the Gulf of Mannar and the Bay of Bengal, demarcates not only the historic waters but also demarcates the exclusive economic zones of the two countries. Article V of the agreement specifically provides that ‘each country shall have sovereign rights and exclusive jurisdiction over the continental shelf and the exclusive economic zone as well as over the resources, whether living or non- living on its side of the aforesaid boundary.
The contiguous zone
The idea of a contiguous zone (i.e. a zone bordering upon the territorial sea) was virtually formulated as an authoritative and consistent doctrine in the 1930s by the French writer – Gidel. And it appeared in the Convention on the Territorial Sea.
Article 24 declared that:
‘In a zone of the high seas contiguous to its territorial sea, the coastal state may exercise the control necessary to”
(a) Prevent infringement of its customs, fiscal, immigration, or sanitary regulations within its territorial or territorial sea.
(b) Punish infringement of the above regulations committed within its territory or territorial sea.
Thus, such contiguous zones were clearly differentiated from claims to full sovereignty as parts of the territorial sea by being referred to as part of the high seas over which the coastal state may exercise particular rights. Unlike the territorial sea, which is automatically attached to the land territory of the state, contiguous zones have to be specifically claimed.
Historically, some states have claimed to exercise certain rights over particular zones of the high seas. This has involved some diminution of the principle of freedom of the high seas as the jurisdiction of the coastal state has been extended into areas of the high seas contiguous to the territorial sea, albeit for defined purposes only. Such restricted jurisdiction zones have been established or asserted for a number of reasons: for example, to prevent infringement of customs, immigration or sanitary laws of the coastal state or to conserve fishing stocks in a particular area or to enable the coastal state to have exclusive or principal rights to the resources of the proclaimed zone.
In each case, they enable the coastal state to protect what it regards as its vital or important interests without having to extend the boundaries of its territorial sea further into the high seas. It is thus a compromise between the interests of the coastal state and the interests of other maritime nations seeking to maintain the status of the high seas and it marks a balance of completing claims. The extension of rights beyond the territorial sea has, however, been seen not only in the context of preventing in the infringement of particular domestic laws.
To be continued next week
