International Laws Of The Sea – Part 12
Pursuant to the earlier topic of Introduction to Maritime Law in Malaysia, published on 22 February 2021, in the coming series the basis and elements of International Laws of The Sea, will be explored.
Rights and duties of coastal and other states in the EEZ
Rights and duties of coastal states
The 1982 Convention on the Law of the Sea recognises the right of coastal states to jurisdiction over the natural resources, both living and non-living, of the area extending 200 miles out from the baselines.
Coastal states have the right to exploit, develop, manage and conserve all resources – fish or oil, gas or gravel, nodules or sulphur – to be found in the waters, on the ocean floor and in the subsoil of this maritime zone. The main rights and duties of a coastal state in its EEZ are outlined in Article 56 of the 1982 Convention:
Rights, jurisdiction and duties of the coastal State in the exclusive economic zone
1. In the exclusive economic zone, the coastal State has:
- 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;
- jurisdiction as provided for in the relevant provisions of this Convention with regard to:
- the establishment and use of artificial islands, installations and structures;
- marine scientific research;
- the protection and preservation of the marine environment;
- other rights and duties provided for in this Convention.
Coastal states also have the exclusive right to construct, and to authorise and regulate the construction, operation and use of, artificial islands, installations and structures for the purpose of exploiting the natural resources of the EEZ. They have exclusive jurisdiction over such artificial islands, installations and structures, including jurisdiction with regard to customs, fiscal, health, safety and immigration laws and regulations. A coastal state may, where necessary, establish reasonable safety zones around such artificial islands, installations and structures in which it may take appropriate measures to ensure the safety both of navigation and of the artificial islands, installations and structures.
The 1982 Convention makes sure that exclusive rights come with responsibilities and obligations. It contains provisions designed to encourage optimum use of fish stocks without risking depletion through overfishing. Coastal states are required to determine the total allowable catch for each fish species within their EEZ. They are also required to estimate their harvest capacity and determine what they can and cannot harvest themselves. They are obliged to give others access to the surplus of the allowable catch, particularly neighbouring states and land-locked countries.
Certain obligations concerning the prevention of pollution are also imposed on coastal states, as are obligations designed to facilitate marine scientific research in their EEZ. Article 56(2) imposes a general obligation on coastal states to have due regard, in the exercise of their rights, to the rights and duties of other states:
When a coastal state has constructed or authorised the construction of artificial islands, installations and structures, it must give due notice of such construction to other states and sea users. It should also create or establish permanent means of giving warning of their presence.
Article 61 of the Convention outlines the obligations of a coastal state relating to the conservation of the living resources in its EEZ. It reads as follows:
- 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.
Conservation of the living resources
- The coastal State shall determine the allowable catch of the living resources in its exclusive economic zone.
- The coastal State, taking into account the best scientific evidence available to it, shall ensure through proper conservation and management measures that the maintenance of the living resources in the exclusive economic zone is not endangered by over-exploitation. As appropriate, the coastal State and competent international organizations, whether subregional, regional or global, shall cooperate to this end.
- Such measures shall also be designed to maintain or restore populations of harvested species at levels which can produce the maximum sustainable yield, as qualified by relevant environmental and economic factors, including the economic needs of coastal fishing communities and the special requirements of developing States, and taking into account fishing patterns, the interdependence of stocks and any generally recommended international minimum standards, whether subregional, regional or global.
- In taking such measures the coastal State shall take into consideration the effects on species associated with or dependent upon harvested species with a view to maintaining or restoring populations of such associated or dependent species above levels at which their reproduction may become seriously threatened.
- Available scientific information, catch and fishing effort statistics, and other data relevant to the conservation of fish stocks shall be contributed and exchanged on a regular basis through competent international organizations, whether subregional, regional or global, where appropriate and with participation by all States concerned, including States whose nationals are allowed to fish in the exclusive economic zone.
Similarly, Article 62 outlines the obligations of a coastal state concerning the utilisation of the living resources in its EEZ. It reads as follows:
Utilization of the living resources
- The coastal State shall promote the objective of optimum utilization of the living resources in the exclusive economic zone without prejudice to article 61.
- The coastal State shall determine its capacity to harvest the living resources of the exclusive economic zone. Where the coastal State does not have the capacity to harvest the entire allowable catch, it shall, through agreements or other arrangements and pursuant to the terms, conditions, laws and regulations referred to in paragraph 4, give other States access to the surplus of the allowable catch, having particular regard to the provisions of articles 69 and 70, especially in relation to the developing States mentioned therein.
- In giving access to other States to its exclusive economic zone under this article, the coastal State shall take into account all relevant factors, including, inter alia, the significance of the living resources of the area to the economy of the coastal State concerned and its other national interests, the provisions of articles 69 and 70, the requirements of developing States in the subregion or region in harvesting part of the surplus and the need to minimize economic dislocation in States whose nationals have habitually fished in the zone or which have made substantial efforts in research and identification of stocks.
- Nationals of other States fishing in the exclusive economic zone shall comply with the conservation measures and with the other terms and conditions established in the laws and regulations of the coastal State. These laws and regulations shall be consistent with this Convention and may relate, inter alia, to the following:
- licensing of fishermen, fishing vessels and equipment, including payment of fees and other forms of remuneration, which, in the case of developing coastal States, may consist of adequate compensation in the field of financing, equipment and technology relating to the fishing industry;
- determining the species which may be caught, and fixing quotas of catch, whether in relation to particular stocks or groups of stocks or catch per vessel over a period of time or to the catch by nationals of any State during a specified period;
- regulating seasons and areas of fishing, the types, sizes and amount of gear, and the types, sizes and number of fishing vessels that may be used;
- fixing the age and size of fish and other species that may be caught;
- specifying information required of fishing vessels, including catch and effort statistics and vessel position reports;
- requiring, under the authorization and control of the coastal State, the conduct of specified fisheries research programmes and regulating the conduct of such research, including the sampling of catches, disposition of samples and reporting of associated scientific data;
- the placing of observers or trainees on board such vessels by the coastal State;
- the landing of all or any part of the catch by such vessels in the ports of the coastal State;
- terms and conditions relating to joint ventures or other cooperative arrangements;
- requirements for the training of personnel and the transfer of fisheries technology, including enhancement of the coastal State’s capability of undertaking fisheries research;
- enforcement procedures.
- Coastal States shall give due notice of conservation and management laws and regulations.
2. The ‘Hoshinmaru’ Case
This case is of some interest with regard to the activities of other states in the EEZ of a coastal state, and to the nature of the collaboration that may exist between states regarding the exploitation of the living resources of the EEZ.
On 6 August 2007 in The ‘Hoshinmaru’ Case (Japan v Russian Federation), Prompt Release, the International Tribunal for the Law of the Sea (ITLOS) ordered Russia to release the Japanese-owned vessel the Hoshinmaru in exchange for a bond of 10 million Russian rubles (US$393,000).
Russia had granted the Hoshinmaru a licence for salmon and trout fishing from 15 May to 31 July 2007 in three areas of its exclusive economic zone. When the Hoshinmaru was fishing in one of those areas on 1 June 2007, a Russian patrol boat ordered it to stop. A Russian inspection team which boarded and inspected the Hoshinmaru alleged that it had caught sockeye salmon instead of chum salmon, in violation of Russian law, and decided to detain the Hoshinmaru and its crew.
Japan filed an application with ITLOS against the Russian Federation on 6 July 2007, asking the Tribunal to order Russia to release the Hoshinmaru and its crew. In its request Japan claimed that the Russian Federation had failed to comply with Articles 73 and 292 of the 1982 Convention regarding the prompt release of a vessel or its crew upon the posting of a bond or other reasonable security. For its part, Russia requested that the Tribunal declare Japan’s application inadmissible.
The Tribunal held that it had jurisdiction pursuant to Article 292 of the 1982 Convention (prompt release of vessels and crews) and remarked that the dispute between the parties turned on the reasonableness of the bond. Accordingly, the Tribunal found that the bond which Russia had sought to impose was unreasonable because it was based upon the maximum penalties that could be imposed as well as the confiscation of the Hoshinmaru, which the Tribunal found unwarranted given the circumstances of the case.
Other general rights of enforcement
Article 73 of the 1982 Convention deals with general enforcement of laws and regulations of the coastal state. It gives wide powers to the coastal state in the exercise of its sovereign rights to explore, exploit, conserve and manage the living resources in the exclusive economic zone. A coastal state may take such measures, including boarding, inspection, arrest and judicial proceedings, as may be necessary to ensure compliance with the laws and regulations adopted by it in conformity with the Convention. It should promptly release arrested vessels and their crews upon the posting of a reasonable bond or other security. In cases of arrest or detention of foreign vessels, the coastal state must promptly notify the flag state, through appropriate channels, of the action taken and of any penalties subsequently imposed. However, coastal state penalties for violations of fisheries laws and regulations in the exclusive economic zone should not include imprisonment or any other form of corporal punishment.
Rights and duties of other states in the EEZ of a coastal state
The status of the EEZ is different from that of the territorial sea. The 1982 Convention accords economic rights to coastal states in their EEZ, but not full sovereign rights. Accordingly, other states enjoy the freedoms of the high seas in the EEZ of a coastal state. Article 58(1) of the Convention states:
Article 58Rights and duties of other States in the exclusive economic zone1. In the exclusive economic zone, all States, whether coastal or land-locked, enjoy, subject to the relevant provisions of this Convention, 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.
This article also imposes certain duties on other states. In exercising their rights and performing their duties under the 1982 Convention in the EEZ, other states should have due regard to the rights and duties of the coastal state, and comply with the laws and regulations adopted by the coastal state in accordance with the provisions of the Convention and other rules of international law.
Rights and duties of land-locked and geographically disadvantaged states
Unlike in the territorial sea and the continental shelf, the 1982 Convention provides for a regime of rights for land-locked and geographically disadvantaged states in the EEZ of a coastal state.
- Land-locked states
Much of the areas that now come under the EEZ were once part of the high seas where all states, both coastal and land-locked, enjoyed the freedoms of the high seas. By appropriating a vast area of the high seas for themselves, the coastal states denied land-locked states the rights they had in the high seas prior to the introduction of the EEZ. Hence, the 1982 Convention includes some provisions designed to allow land-locked states certain limited access to the fisheries resources of the EEZs of coastal states of the same region or subregion. The main provisions concerning such access to fisheries resources are contained in Article 69 of the Convention:
Right of land-locked States
- Land-locked States shall have the right to participate, on an equitable basis, in the exploitation of an appropriate part of the surplus of the living resources of the exclusive economic zones of coastal States of the same subregion or region, taking into account the relevant economic and geographical circumstances of all the States concerned and in conformity with the provisions of this article and of articles 61 and 62.
- The terms and modalities of such participation shall be established by the States concerned through bilateral, subregional or regional agreements taking into account, inter alia:
- the need to avoid effects detrimental to fishing communities or fishing industries of the coastal State;
- the extent to which the land-locked State, in accordance with the provisions of this article, is participating or is entitled to participate under existing bilateral, subregional or regional agreements in the exploitation of living resources of the exclusive economic zones of other coastal States;
- the extent to which other land-locked States and geographically disadvantaged States are participating in the exploitation of the living resources of the exclusive economic zone of the coastal State 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.
- When the harvesting capacity of a coastal State approaches a point which would enable it to harvest the entire allowable catch of the living resources in its exclusive economic zone, the coastal State and other States concerned shall cooperate in the establishment of equitable arrangements on a bilateral, subregional or regional basis to allow for participation of developing land-locked States of the same subregion or region in the exploitation of the living resources of the exclusive economic zones of coastal States of the subregion or region, as may be appropriate in the circumstances and on terms satisfactory to all parties. In the implementation of this provision the factors mentioned in paragraph 2 shall also be taken into account.
- Developed land-locked States shall, under the provisions of this article, be entitled to participate in the exploitation of living resources only in the exclusive economic zones of developed coastal States of the same subregion or region having regard to the extent to which the coastal State, in giving access to other States to the living resources of its exclusive economic zone, has taken into account the need to minimize detrimental effects on fishing communities and economic dislocation in States whose nationals have habitually fished in the zone.
- The above provisions are without prejudice to arrangements agreed upon in subregions or regions where the coastal States may grant to land-locked States of the same subregion or region equal or preferential rights for the exploitation of the living resources in the exclusive economic zones.
- Geographically disadvantaged states
There is a further group of states known as geographically disadvantaged states because, although they have a coastline, they get very little benefit from the seas off their coast, for a number of reasons.
Some such states have a small coastline compared to the size of the country, and others are situated in such a position that they hardly get any sea areas as their own EEZ. Although they are coastal states in name, they did not stand to benefit as much as other coastal states when the scramble for the seas was underway during UNCLOS III.
According to Article 70(2) of the 1982 Convention, ‘geographically disadvantaged states’ means:
coastal states, including states bordering enclosed or semi-enclosed seas, whose geographical situation makes them dependent upon the exploitation of the living resources of the exclusive economic zones of other states in the subregion or region for adequate supplies of fish for the nutritional purposes of their populations or parts thereof, and coastal states which can claim no exclusive economic zones of their own.
In response to concerns raised by such states, the 1982 Convention contains certain provisions designed to allow them limited access to the resources of the EEZs of other coastal states of the same region or subregion. Article 70 deals with such access:
Right of geographically disadvantaged States
- Geographically disadvantaged States shall have the right to participate, on an equitable basis, in the exploitation of an appropriate part of the surplus of the living resources of the exclusive economic zones of coastal States of the same subregion or region, taking into account the relevant economic and geographical circumstances of all the States concerned and in conformity with the provisions of this article and of articles 61 and 62.
- The terms and modalities of such participation shall be established by the States concerned through bilateral, subregional or regional agreements taking into account, inter alia:
- the extent to which the geographically disadvantaged State, in accordance with the provisions of this article, is participating or is entitled to participate under existing bilateral, subregional or regional agreements in the exploitation of living resources of the exclusive economic zones of other coastal States;
- the extent to which other geographically disadvantaged States and land-locked States are participating in the exploitation of the living resources of the exclusive economic zone of the coastal State 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.
- When the harvesting capacity of a coastal State approaches a point which would enable it to harvest the entire allowable catch of the living resources in its exclusive economic zone, the coastal State and other States concerned shall cooperate in the establishment of equitable arrangements on a bilateral, subregional or regional basis to allow for participation of developing geographically disadvantaged States of the same subregion or region in the exploitation of the living resources of the exclusive economic zones of coastal States of the subregion or region, as may be appropriate in the circumstances and on terms satisfactory to all parties. In the implementation of this provision the factors mentioned in paragraph 3 shall also be taken into account.
- Developed geographically disadvantaged States shall, under the provisions of this article, be entitled to participate in the exploitation of living resources only in the exclusive economic zones of developed coastal States of the same subregion or region having regard to the extent to which the coastal State, in giving access to other States to the living resources of its exclusive economic zone, has taken into account the need to minimize detrimental effects on fishing communities and economic dislocation in States whose nationals have habitually fished in the zone.
- The above provisions are without prejudice to arrangements agreed upon in subregions or regions where the coastal States may grant to geographically disadvantaged States of the same subregion or region equal or preferential rights for the exploitation of the living resources in the exclusive economic zones.
- Land-locked states
Jurisdiction and powers relating to the protection of the marine environment
The powers of coastal states concerning the protection of the marine environment are outlined in Part XII of the 1982 Convention.
There are six main sources of ocean pollution addressed in the Convention:
- land-based and coastal activities
- continental-shelf drilling
- potential seabed mining
- ocean dumping
- vessel-source pollution
- pollution from or through the atmosphere.
The Convention seeks to address these sources of pollution by stipulating the fundamental obligation of all states to protect and preserve the marine environment, and by urging all states to cooperate on a global and regional basis in formulating rules and standards and otherwise take measures for the same purpose. Of course, coastal states are fully empowered to enforce their national standards and anti-pollution measures within their territorial sea. They also are entitled to take measures in the contiguous zone designed, inter alia, to control pollution.
The 1982 Convention has accorded coastal states jurisdiction for the protection and preservation of the marine environment of their EEZ, allowing them to control, prevent and reduce marine pollution from various sources. With regard to the control of marine pollution from foreign vessels, coastal states are allowed to exercise jurisdiction only for the enforcement of laws and regulations adopted in accordance with the Convention or for ‘generally accepted international rules and standards’, which basically means rules and standards adopted through the competent international organisations, such as the International Maritime Organization (IMO).With regard to vessel-source pollution, the 1982 Convention stipulates that it is the duty of the flag state – the state where a ship is registered and whose flag it flies – to enforce the rules adopted for the control of marine pollution from vessels, irrespective of where a violation occurs. This duty imposed on flag states serves as a safeguard for the enforcement of laws on marine pollution wherever it may take place, including on the high seas.
Another mechanism devised by the 1982 Convention for the control of pollution is the enforcement powers granted to the port state – the state where a ship is destined. Such powers are helpful in enforcing treaty obligations dealing with shipping standards, marine safety and pollution prevention, not only under the Convention but also under other international treaties dealing with marine pollution. In other words, the port state can enforce any type of international rules or national regulations adopted in accordance with the Convention. It may also require vessels visiting its port to observe international rules as a condition for the entry of foreign vessels into its ports or internal waters or for a call at its offshore terminals. Such wide powers granted by the Convention to port states have already contributed to the strengthening of international standards designed to control marine pollution from vessels.
Jurisdiction and powers to control the conduct of marine scientific research
The powers of coastal states to conduct and control marine scientific research are outlined in Part XIII of the 1982 Convention. When the breadth of the territorial sea was extended to 12 miles, and the 200-mile EEZ was established, the area open to unrestricted scientific research was circumscribed. Major research states, mainly the developed states, expressed their concern that the area open to all states for marine scientific research was being pushed seaward by 200 miles. However, developing states had also become wary of the possibility of scientific expeditions being used as a cover for intelligence gathering or economic gain, particularly in relatively uncharted areas, since scientific research was yielding knowledge of potential economic significance for the technologically advanced states. (It should be remembered that much of the negotiation during UNCLOS III took place during the height of the Cold War.) While developing states demanded ‘prior consent’ of a coastal state to all scientific research on the continental shelf and within its EEZ, the developed states offered to give coastal states ‘prior notification’ of research projects to be carried out on the continental shelf and within the EEZ, and to share any data pertinent to offshore resources.
The 1982 Convention seeks to strike a balance between the rights of coastal states and major research states by permitting certain activities relating to marine scientific research in the EEZ of a coastal state. The provisions of the Convention concerning marine scientific research represent a concession on the part of both developed and developing states. A coastal state’s jurisdiction and discretion within its territorial sea remains absolute. So far as the EEZ and the continental shelf are concerned, the coastal state must give its prior consent. Nevertheless, such consent for research for peaceful purposes is supposed to be granted ‘in normal circumstances’. According to the Convention, coastal state responses to requests for permission must not be ‘delayed or denied unreasonably’, except in limited specific circumstances identified in the Convention. The absence of a response on the part of a coastal state within six months of the date of the request is deemed to constitute consent. Provisions such as this were intended to circumvent the long bureaucratic delays and frequent burdensome differences in coastal state regulations.
The aim of these provisions of the 1982 Convention was to ensure that no unnecessary limitation was imposed by coastal states on marine scientific research, a traditional high seas freedom enjoyed by all states. The negotiating states did not wish to adversely affect the advancement of science, nor deny its potential benefits to all nations in fields such as weather forecasting and the study of the effects of ocean currents and the natural forces at work on the ocean floor. Today, marine scientific research plays a vital role in monitoring not only weather systems, but also global climate change and its impact on marine life, and the 1982 Convention has safeguarded such research.
Delimitation of the EEZ
The principle of equitable solution is the primary rule applicable in delimiting the EEZ between states with opposite or adjacent coasts. What is an equitable solution will vary from one case to another depending on various geographical, historical and other special circumstances existing between the states concerned.
Article 74 of the 1982 Convention requires the coastal states concerned to effect the delimitation of their EEZ by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution. If no agreement can be reached between them then the 1982 Convention requires them to refer the matter to the dispute settlement mechanism provided for in Part XV of the Convention.
As for the method of achieving an equitable solution, in some cases, such as the ‘Jan Mayen’ Case, the ICJ has adopted the formula of a median line between opposite coastal states. In other cases, such as Qatar v Bahrain and Cameroon v Nigeria, it has reaffirmed its preference for the adoption of the equidistance principle as the basic rule governing the delimitation of the maritime boundaries between states.
However, the ICJ has taken into account special circumstances such as the lengths of the relevant coasts of the coastal states in reaching its decision on the delimitation of maritime boundaries.
New cases on maritime delimitation
There have been a couple of major judgments delivered by the international courts and tribunals in the recent past concerning the development in the international law of maritime boundary delimitation.
These judgments have sought to bring clarity to jurisprudence addressing delimitation of a state’s maritime entitlements located beyond 200 nautical miles from the state’s coastal baselines.
In a string of recent disputes involving maritime jurisdiction in the Bay of Bengal, the Caribbean Sea and the Pacific Ocean, international courts and tribunals – including the ICJ, the International Tribunal for the Law of the Sea (ITLOS) and an arbitral tribunal constituted under Annex VII of the 1982 Convention – have addressed the unique and critical issues arising in such delimitations.
The 2012 judgment by ITLOS in Bangladesh/Myanmar and the 2014 award by the Annex VII tribunal in Bangladesh v India explained that it was unnecessary to wait for CLCS recommendations before delimiting the continental shelf beyond 200 miles in the Bay of Bengal.
A slightly different approach was taken by the ICJ in the 2012 judgment in Nicaragua v Colombia, which declined to delimit any maritime spaces beyond 200 miles from Nicaragua’s coast.
- Maritime dispute in the Caribbean Sea
The ICJ rendered a judgment in November 2012 in a maritime dispute between Colombia and Nicaragua over the sovereignty of a number of islands in the western Caribbean. In doing so, the Court unanimously fixed the course of the single maritime boundary between the two countries largely based on a simplified weighted line favouring Nicaragua.
- Maritime boundary between Peru and Chile
In 2008, Peru filed an application at the ICJ claiming that its southern maritime boundary with Chile had not been formally delimited and asking the Court to undertake the task of delimitation using the equidistance method. In response, Chile took the position that the maritime boundary between the two states had been established in 1952. The Court issued its Judgment on 27 January 2014, finding that an all-purpose maritime boundary existed between the two states along a horizontal parallel starting at Boundary Marker No. 1 and extending to 80 nautical miles.
- Maritime delimitation in the Black Sea
In February 2009 the ICJ delivered its judgment in another major case: Maritime Delimitation in the Black Sea (Romania v Ukraine), an action instituted by Romania against Ukraine in 2004, regarding the delimitation of the continental shelf and the exclusive economic zones of Romania and Ukraine in the Black Sea. While the judgment draws an equitable line between both parties, Romania got a larger part of the disputed area. However, Ukraine has claimed that almost all of the oil and gas reserves are concentrated in the part of the continental shelf going to Ukraine; its president is reported to have regarded the ruling as ‘just and final’.
- Maritime boundary dispute between Ghana and Cote d’Ivoire
On 23 September 2017, the Special Chamber of ITLOS delivered its judgment in the Dispute Concerning Delimitation of the Maritime Boundary Between Ghana and Côte d’Ivoire in the Atlantic Ocean (Ghana/Côte d’Ivoire). It was in 2014 that Ghana and Côte d’Ivoire had agreed to submit the dispute concerning their maritime boundary to an ITLOS Special Chamber. The Special Chamber ruling largely in Ghana’s favor created a definitive single maritime boundary for the territorial sea, the exclusive economic zone and the continental shelf within and beyond 200 nautical miles.
- Barents Sea
In June 2011 the Russian Federation and Norway reached a deal to divide up their share of the Barents Sea into two equal areas. The deal is the result of decades of negotiations between the two countries. It is expected to allow companies to explore for oil and gas in the 68,000-square-mile area.
- Maritime dispute in the Caribbean Sea
Other contentious claims and counterclaims
The following claims and counterclaims relate to some of the hot spots in the North Pole.
- Russian claim to the North Pole
In 2007 it was reported that a team of Russian scientists on board the atomic icebreaker Rossiya had arrived at the North Pole and planted a national flag on the seabed. The flag was reported to symbolize Moscow’s claim that the area is part of Russia on the basis that the geological structure of the bottom of the North Pole is the same as the continental shelf off its shores. Russia seemed to be claiming that the Lomonosov Ridge is geologically the same as the Eurasian continental shelf which extends outwards from Siberia. However, the problem for Russia is that a similar argument can be made by the other Arctic nations. Indeed, Moscow’s claim is disputed by the four other Arctic nations: the USA, Canada, Norway and Denmark.
Although the 1982 Convention on the Law of the Sea allows for a continental shelf which is longer than 200 miles in certain cases, Russia will have to persuade the Commission on the Limits of the Continental Shelf that its claims about the outer limits of the continental shelf in the Arctic are valid. Russia submitted its claim to the Commission in 2001, but was told to submit a revised version since the available data were not sufficient to support it. Once a revised version is submitted, the Commission will determine how much territory the big five Arctic seabed claimants – Canada, Russia, the USA, Denmark and Norway – will be able to claim for oil exploration and other uses.
In the meantime, the Russian government issued a national directive asserting claims over large sections of the Arctic Ocean. Subsequently, in 2009, the EU Commission published a report entitled ‘The European Union and the Arctic Region’, heralding the development of a systematic EU Arctic policy.
- Denmark claimed the North Pole
When making its submission to the Commission on the Limits of the Continental Shelf in December 2014, Denmark stated that the area surrounding the North Pole is connected to the continental shelf of Greenland, a Danish autonomous territory.
Canada and Russia have already made competing claims of their own sovereignty over the energy-rich Arctic territory. The focus of the dispute is the Lomonosov Ridge, a 1,800 km-long (1,120 mile-long) underwater mountain range that splits the Arctic in two.
As mentioned above, each country has to submit a claim within 10 years of ratifying the 1982 Convention on the Law of the Sea. Both Norway and Russia have already done so while Canada has indicated that it will. The USA has yet to ratify the Convention.
- ‘Ocean-grabbing’ as serious a threat as ‘land-grabbing’
Criticising the recent attempts at ocean-grabbing by states, the UN Special Rapporteur on the right to food stated in his report to the UN General Assembly on 30 October 2012 that ‘ocean-grabbing’ was posing a threat to food security, and called upon states and international organisations to halt the depletion of fish stocks and take urgent steps to protect, sustain and share the benefits of fisheries and marine environments. The UN rapporteur was critical of the access agreements that harm small-scale fishers. He added that unreported catch, incursions into protected waters and the diversion of resources away from local populations can be as serious a threat as ‘land-grabbing’.
- Russian claim to the North Pole
Summary and conclusions
The EEZs are the richest areas of the seas in terms both of the fisheries stock and of the existence of mineral resources. This is because phytoplankton is the basic food of fish, and phytoplankton pastures lie within 200 miles of the continental masses. The world’s richest areas in mineral resources also lie within 200 miles of the coasts of coastal states. It is thought that about 87 per cent of all known and estimated hydrocarbon reserves under the sea, and 99 per cent of the world’s fisheries, fall under some national jurisdiction in the form of the territorial sea, the EEZs or the continental shelf.
Most coastal states have benefited a great deal by the introduction of the concept of the EEZ. Nations with long coastlines and archipelagic states have acquired the greatest areas under the EEZ regime, becoming the greatest beneficiaries of the EEZ regime of the 1982 Convention. Examples of such major beneficiaries include large nations with long coastlines such as the USA, France, Indonesia, New Zealand, Australia and the Russian Federation, and small nations with many islands such as the Maldives and the Philippines.
In addition to defining the rights and duties of coastal states and other states in the EEZ, the 1982 Convention also outlines the principles concerning the delimitation of the EEZ between adjacent and opposite coastal states. Accordingly, the delimitation of the EEZ should be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution. If no agreement can be reached within a reasonable period of time, the states concerned are required to resort to the detailed procedures provided for in Part XV of the 1982 Convention, which deals with the dispute settlement mechanism.
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This article is written by our Principal Associate, Chakaravarthi
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