The Exclusive Economic Zone

A Latin American Perspective

Francisco Orrego Vicuna, Francisco Orrego-Vicuna

• Publisher: Routledge
• Year: 2019
• Print ISBN:
  9780367292003
• eBook ISBN:
  9781000301274
• Topic: Politics & International Relations
• Subtopic: International Relations
• Index: Politics & International Relations

Developed and implemented over a period of three decades through legislation and practice in the countries of Latin America, the concept of the Exclusive Economic Zone (EEZ) is the most recent of those incorporated into the body of international law resulting from the Third United Nations Law of the Sea Conference. A distinguished group of Latin Am

1. The Exclusive Economic Zone in a Latin American Perspective: An Introduction

Francisco Orrego Vicuña

One of the concepts most recently incorporated in the structure of international law is that of the Exclusive Economic Zone (EEZ). The foundation of this new institution, which has undergone a long evolutionary process, goes back as far as the earliest claims to national jurisdiction over marine resources of various types. But, the Exclusive Economic Zone is also partly the result of widespread contemporary national practices and of the diplomatic negotiations that have been conducted, concurrently, at the Third United Nations Conference on the Law of the Sea and other regional or global forums.

Precisely because it is a new concept and it springs from a variety of sources, the EEZ has not yet been the object of systematic analysis in the doctrine of international law. The studies published hitherto are few in number and are only just beginning to draw the attention of international academic organizations. Thus, for example, the first provisional report of the International Law Association's International Committee on the Exclusive Economic Zone came before the Montreal session of the conference in 1982.

Since the EEZ is indissolubly linked to Latin American practice, as reflected in national legislation and in existing regional instruments, the Institute of International Studies of the University of Chile deemed it opportune to convene a conference to discuss this topic. Held in October 1981, the conference was attended by distinguished scholars and diplomats from several countries in this region, many of whom had played a direct part in the negotiations of the United Nations Conference on the Law of the Sea. This book assembles the contributions made on that occasion and other studies that it has been thought important to include.

The first point that should be noted relates to the origins of the new concept. All Latin American writers agree that the Exclusive Economic Zone has its roots in the national claims asserted by countries of the region during the late 1940s; the first of these was the Chilean proclamation in 1947, which was followed by other similar instruments and by multilateral agreements dating from 1952. This early Latin American practice is carefully analyzed in the chapters by F. V. García-Amador and Julio César Lupinacci, which together cover more than forty years of Latin American legislation in this field. The subject is of considerable interest in the light of recent arguments suggesting different origins linked to initiatives on the part of other regions.

In addition to the historical approach, the process of creating the EEZ warrants special attention. Latin American writers, like many others throughout the world, are at one in holding that the widespread national practice already current in this respect is explicit enough to constitute a precedent on which an international customary rule can be based. In fact, the legislation of many countries, even though differing in specific approaches or modes of application, is essentially uniform as regards the basic characteristics and purposes of the exercise of national jurisdiction over the maritime space in question. Just as in the case of the continental shelf, this vast legislative movement is representative of an opinio juris in relation to the EEZ. Thus, irrespective of its expression through the Convention on the Law of the Sea, today the existence of a new consuetudinary rule can be affirmed.

At the same time, the evolution of the negotiations conducted through the Conference on the Law of the Sea is important. The analysis presented by Reynaldo Galindo Pohl, who was chairman of the Second Committee during the initial negotiations on the economic zone in the early years of the conference's work, bears valuable witness to the course of its deliberations. This type of contribution is of outstanding importance in view of the fact that almost the entire process of negotiation has been informal, with the result that there is a lack of official records that makes it extremely difficult to reconstitute the propositions and the bases that have paved the way for a compromise solution to each aspect of the problem. It is precisely to the importance of informal negotiations in the quest for a consensus on the law of the sea that Vicente Marotta Rangel refers in his study.

The Chapter by Galindo Pohl points out the basic problems that had to be examined in order to reach an understanding with respect to this new institution and the positions of the principal parties involved in the negotiation. He gives an accurate account of the nature and main characteristics of the compromise that was negotiated.

Similarly, Ambassador Galindo Pohl advances interpretations that are of special interest in view of the incipient discrepancies as to the scope of the provisions of the 1982 convention. These interpretations have the merit of being evolved in the light of the criteria that made the aforesaid compromise possible.

An essential part of this process of accommodation is that relating to the fishing regime within the EEZ and to kindred problems. The interests of the coastal states had to be reconciled with those of countries fishing in distant waters, as well as with the particular situation of the landlocked countries and of those with special geographical characteristics. At the same time, the most important of the different types of fish species needed a differentiated regime in keeping with their particular habits of life and migratory cycles, a necessity that gave rise to diverse regulations in this field. The study by Hugo Caminos, which focuses primarily on the fishing regime, offers an explanation of the different regimes referred to and of their essential, components, facilitating understanding of the compromises that have intervened in the case of fishing.

The problem that has been of most lively concern to the Latin American countries in regard to the Exclusive Economic Zone has undubitably been that of its legal status. The long-standing discussions as to whether the jurisdiction exercised by a coastal state over its adjacent seas is (1) a type of specialized projection of its powers, or (2) a manifestation of its territorial sovereignty, identical with or similar to its sovereignty over the territorial sea, have continued to crop up in relation to the legal status of the EEZ. These differences arose at the outset among the members of the Permanent Commission of the South Pacific; Chile was decidedly in favor of the first approach; Ecuador leaned towards the second; while Peru adopted special modalities that revealed a preference for the latter.

The same situation recurred at a more universal level in the negotiations of the Conference on the Law of the Sea. Although the so-called territorialist group did not carry too much weight in these proceedings, it did prove influential enough to demand various accommodation formulas. The most serious source of conflict, however, was the discrepancy between the criterion of the coastal states and that of the maritime powers with regard to the specific provisions of the part of the convention on the Exclusive Economic Zone and to others of a kindred nature. This dispute accounts for the substantive compromise that was effected.

Imaginative as were the approaches adopted in the convention to overcome the existing problems, they leave room for arguments on behalf of each of the two criteria, which in the near future will undoubtedly be reflected in conflicting interpretations. These have, in fact, already begun to rear their heads. The distinction drawn in this instrument between "sovereign rights," "jurisdiction", and "other rights and duties" obviously makes for gradation of the significance of the powers attributed to the coastal state in the maritime space under discussion, but it does not in itself settle the question of legal status. The position is much the same in respect to the subtle play of cross references with the articles relating to the high seas, which is another of the mechanisms designed for this purpose; for while it reaffirms some of the freedoms proper to the latter space, it makes no difference to the nature of the powers that the coastal state has authority to exercise.

The formula on residual rights contained in Article 59 of the convention is characterized by a balanced approach that aims at avoiding prejudgments on the question of the legal status of the EEZ and at the same time seeks to facilitate the settlement of any disputes that may arise. Perhaps one of the most important of the issues that have bearing on this matter of legal status is to be found in the sphere of the provisions for the peaceful settlement of disputes and the complicated set of exceptions and counter-exceptions appearing therein. From the study by María Teresa Infante, which looks at the problem from this angle, it can be seen that these provisions adequately safeguard the discretional powers of the coastal state.

A point of view that is shared by several authors is that the Exclusive Economic Zone can be described as a maritime space sui generis, different from the territorial sea and from the high seas although taking elements from both to combine them within a new institution. Similar efforts had been previously made in Latin America, particularly on the basis of the conceptual formulation referring to a patrimonial sea. These approaches are interesting in that they account for the modalities and characteristics of the Exclusive Economic Zone, but they too fail to solve the problem of the fundamental conflicts between one conception and the other, which are still in evidence. Probably this scenario will remain unchanged for a long time, until jurisprudence and other processes of refinement of international norms come to shed light on the real significance and scope of the provisions and concepts concerned.

This debate has been of particular importance in Latin America's case, both because of the role that this region has played in the negotiations of the Conference on the Law of the Sea and because of the characteristics of several countries' legislation. In many instances, these characteristics display contradictions or changes of direction. On other occasions different approaches have been tried out, such as that of describing the zone in terms of a territorial sea, subject, however, to regimes different from those traditionally applied. Be that as it may, the fact is that the controversy has not died down but, on the contrary, has been exacerbated in recent years, in some cases creating difficulties In connection with the signature and ratification of the new convention.

Several of the studies contained in this book take as their theme the question of the legal status of the Exclusive Economic Zone from a Latin American standpoint. Apart from the contribution by Galindo Pohl, which is concerned particularly with the process of forming a consensus, this subject is also dealt with in the chapters by Julio César Lupinacci and Alfonso Arias Schreiber. The former study is based mainly on an analysis of Latin American legislation and practice at the regional level, reviewing at the same time the negotiation of the Conference on the Law of the Sea, while the second pays particularly detailed attention to the arguments that have been adduced in this juridical and diplomatic debate. These approaches, together with other pertinent views existing in Latin America, constitute and adequate panorama of regional opinion.

The Exclusive Economic Zone involves many other questions, ranging from those of its delimitation to those of its relation with the regime of the continental shelf and including problems relating to installations of various types. These other angles have not been dealt with in the chapters in this book, whose object is rather to identify the concept of the Exclusive Economic Zone in the light of its significance in international law.

The material assembled in this book will serve to highlight, from one point of view, the wealth of intellectual discussion that has accumulated around this new institution. Perhaps the book's greatest merit lies in its testimony to the experience and farsightedness of many of those who are contributing to the birth of a new concept in contemporary international law.

2. The Origins of the Concept of an Exclusive Economic Zone: Latin American Practice and Legislation

— F. V. García-Amador

In examining the Exclusive Economic Zone (EEZ) as provided for in Part V of the 1982 Convention on the Law of the Sea, one must bear in mind three fundamental aspects of this maritime area: the resources that are the object of exploration, conservation, and exploitation or development; the legal nature of the extended competences that are the zone's fundamental characteristic; and the area to be included in such a zone. It is of great Importance to distinguish among these aspects in order to determine how the EEZ has been taking shape. Indeed, in distinguishing among the three aspects mentioned, the historical roots and antecedents of the zone do not always coincide. As this chapter will show, until the essential constituents of the EEZ came together in a new maritime space--and this is what happened in the case of the 200-mile "maritime zone" claimed by the Latin American countries bordering on the South Pacific-- the relevant historical roots and antecedents lay scattered in various claims and proposals that differed as to the aims and objects, the legal nature, and the size envisaged for the zone.

Early Claims to Living Resources

The EEZ's earliest antecedents with regard to living resources are the claim to the so-called sedentary fisheries; the claim to the right of "ownership and protection" over the seals and other resources of the Bering Sea; and the claim to a certain area in Moray Firth.

The Claim to the So-called Sedentary Fisheries

Centuries before the appearance of the doctrine of the continental shelf, the area where these fisheries are based, a consensus already existed favoring the right of a coastal state to reserve unto itself the exploitation of the resources of the sea bed located beyond that state's territorial waters. Claims to the living resources of the sea bed date much earlier and are more numerous than those to mineral resources.¹ Some examples include the claims of Ceylon and Australia with regard to pearl fisheries, French and Italian claims with regard to Mediterranean coral, and the claim of the Bey of Tunis with regard to sponge banks.²

What is the essential nature of such claims to living resources? The answer is to be found in Emerich de Vattel's famous and oft-cited statement: "Who doubts that the pearl fisheries of Bahrein and Ceylon can legally be owned?" As R. Young has indicated, the prevailing view is that these are cases of the right of exclusive exploitation or utilisation, since these resources are considered to be the fruit of the sea bed and are thus to be harvested, unlike free-swimming fish that can only be caught.³ It is clear, then, that in these cases the claim relates to specific resources rather than to a maritime zone.

This, of course, does not provide grounds for underestimating the importance of the fact that, from the earliest times, coastal states have been acknowledged to "own" some of these living resources of the sea bed. Consequently, in studying the EEZ from an historical perspective, it is of special significance that the EEZ was the first claim to living resources to merit the acquiescence or consent of the international community, thus establishing the first exception to the principle of the freedom of the seas in relation to the right of fishing in the high seas.

The Right of “Ownership and Protection” over the Seals of Bering Sea

On the grounds that the species in question was commonly found on its territory or in its territorial waters, the United States unilaterally adopted strict conservation measures toward seals without fixing the extent of the territory over which these measures would apply. The application of these measures in 1886 and 1887 to several British Columbian schooners resulted in Great Britain's protesting against this action on the grounds that the ships in question had been seized outside the three-mile limit of the United States' territorial sea. Eventually, the two countries agreed to submit the matter to arbitration, by the treaty of February 29, 1892.

Of the five points submitted to the arbitration tribunal for its decision, the last has a direct bearing o...

Table of contents

• Cover
• Half Title
• Series Page
• Title
• Copyright
• Contents
• 1 THE EXCLUSIVE ECONOMIC ZONE IN A LATIN AMERICAN PERSPECTIVE: AN INTRODUCTION
• 2 THE ORIGINS OF THE CONCEPT OF AN EXCLUSIVE ECONOMIC ZONE: LATIN AMERICAN PRACTICE AND LEGISLATION
• 3 THE ECONOMIC INTEREST UNDERLYING THE FIRST DECLARATION ON A MARITIME ZONE
• 4 THE EXCLUSIVE ECONOMIC ZONE IN THE LIGHT OF NEGOTIATIONS OF THE THIRD UNITED NATIONS CONFERENCE ON THE LAW OF THE SEA
• 5 THE ROLE OF INFORMAL NEGOTIATIONS IN THE SEARCH FOR A CONSENSUS ON THE LAW OF THE SEA
• 6 THE LEGAL STATUS OF THE EXCLUSIVE ECONOMIC ZONE IN THE 1982 CONVENTION ON THE LAW OF THE SEA
• 7 THE EXCLUSIVE ECONOMIC ZONE: ITS LEGAL NATURE AND THE PROBLEM OP MILITARY USES
• 8 THE REGIME OF FISHERIES IN THE EXCLUSIVE ECONOMIC ZONE
• 9 THE SETTLEMENT OF DISPUTES REGARDING THE LAW OF THE SEA AND ITS BEARING ON THE LEGAL NATURE OF THE EXCLUSIVE ECONOMIC ZONE
• Contributors
• Index
• About the Book and Editor