Sangeetha Pulapaka

Since the seventeenth century, when the development of seaborne trade and the emergence of powerful maritime nations led to a shift from the notion of closed seas claimed by a few countries to the concept of open seas, the two basic principles of the law of the sea have been that a narrow strip of coastal waters should be under the exclusive sovereignty of the coastal state and that the high seas beyond should be freely accessible to all. These principles were originally intended to satisfy and reconcile the requirements of national security with freedom of trade and navigation. But they were applied to all activities in both areas and ipso facto defined the legal framework within which fishing activities were carried on.

The concept of the exclusive economic zone is one of the most important pillars of the 1982 Convention on the Law of the Sea. The regime of the exclusive economic zone is perhaps the most complex and multifaceted in the whole Convention. The accommodation of diverse issues contributed substantially to the acceptance of the concept and to the Convention as a whole. The 1982 Convention on the Law of the Sea is often referred to as a package. The metaphor is derived from a decision made during the Third United Nations Conference on the Law of the Sea that the Convention would be adopted in toto, as a "package deal". No single issue would be adopted until all issues were settled. This decision provided an essential mechanism for reconciling the varied interests of the states participating in the Conference. If a state's interests in one issue were not fully satisfied, it could look at the whole package and find other issues where its interests were more fully represented, thereby mitigating the effects of the first. Thus, the Convention became an elaborately-constructed document built on trade-offs, large and small.

The larger package consists of: a twelve-nautical-mile territorial sea; an exclusive economic zone of up to 200 nautical miles in which coastal states have preeminent economic rights and which obviates the need for a territorial sea of 200 nautical miles claimed by some states; extension of the continental shelf regime to the margin, with revenue-sharing obligations beyond the exclusive economic zone; a regime for transit passage through straits used for international navigation and for archipelagic sea-lanes passage; guaranteed access to and from the sea for land-locked states; a regime for the administration and development of the common heritage resources of the international sea-bed area; protection and preservation of the marine environment; and adequate mechanisms for settlement of disputes concerning the interpretation and application of the provisions of the Convention.

Within this larger package are many smaller packages of which the exclusive economic zone is one of the most interesting examples. The provisions contained in articles 55 and 752 reflect an array of interests: the sovereign rights of coastal states to manage the zone in good faith; the regard for the economic interests of third states; regulation of certain activities in the zone, such as marine scientific research, protection and preservation of the marine environment, and the establishment and use of artificial islands, installations and structures; freedom of navigation and overflight; the freedom to lay submarine cables and pipelines; military and strategic uses of the zone; and the issue of residual rights in the zone.

As of December 1986, out of 142 coastal states at least 70 states have proclaimed exclusive economic zones of 200 miles and about 20 others have established exclusive fishing zones of 200 miles. The rapid and widespread acceptance of the economic zone concept as reflected in national legislation indicates that it has become a permanent feature of modern international law of the sea. What was once a revolutionary idea with few supporters is now considered by some to be a part of customary international law.

Ultimately, one must look at the whole package to understand the mini-packages and why some states would ostensibly "give-up" certain traditional rights that for decades had worked in their favour. In order to appreciate fully the balance of the legal, political and economic interests involved in the negotiations, it is useful to look at the historical context of those interests. This article traces the development of the concept of the exclusive economic zone to its final form in the Convention.

Part V of the United Nations Convention on the Law of the Sea establishes the legal regime of the exclusive economic zone. Article 55 creates the legal regime and distinguishes it from the territorial sea: "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.