THE EXCLUSIVE ECONOMIC ZONE: A HISTORICAL

PERSPECTIVE
S.N. NANDAN

Under Secretary-General, Special Representative of the Secretary-General for the Law of

the Sea. The opinions expressed in this article are those of the author and do not
necessarily represent the views of the United Nations.

"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.

At the Conference on the Law of the Sea, there was only limited support for maintaining
the status quo..."

J.E. Carroz, 19821

1
 Carroz, J.E. 1982. The living resources of the sea. In The management of humanity's
resources: The Law of the Sea. Workshop 1981 organized by The Hague Academy of
International Law and the United Nations University. The Hague, Martinus Nijhoff, pp. 193-
207.

The concept of the exclusive economic zone is an essential element of the "package" of
compromises and trade-offs that constitutes the 1982 Convention on the Law of the Sea. It
is a concept which has received rapid and widespread acceptance in state practice and is
thus now considered by some to be part of customary international law. In this article the
author traces the evolution of the concept of the exclusive economic zone from its origins to
its final form in the Convention, to give an insight into the balance of legal, economic and
political interest that was involved in the development of the final text. The article looks first
at the historical underpinnings of the concept in the Truman proclamations on the
continental shelf and coastal fisheries of 1945, the unilateral declarations of sovereignty by
Chile and Peru in 1947 and the declarations by a number of Arab states in 1949. He then
traces the development of the idea in Latin America, through the Santiago Declaration of
1952 which first proclaimed 200-miles zones off Chile, Ecuador and Peru, the Montevideo
and Lima Declarations of 1970 and the Declaration of Santo Domingo in 1972, which
articulated the notion of the patrimonial sea. The article describes the African and Asian
contributions to the development of the concept of the exclusive economic zone, focusing on
the work of the Asian-African Legal Consultative Committee and the proposals presented by
Kenya, the Yaoundé Conclusions of 1972 and the Addis Ababa Declaration of 1973, before
moving on to the Kenyan draft articles presented to the Sea-bed Committee in 1972. It then
reviews the negotiations at the Third UN Conference on the Law of the Sea on this issue
and the various trends apparent in those negotiations.
In the second part of the article, the author concentrates on the aspects of the exclusive
economic zone relating to the conservation and management of living resources and the
opposing interests of the coastal states and major fishing nations. He reviews a number of
proposals put before the Sea-bed Committee in 1972 and 1973 reflecting changes in the
balancing of these opposing interests as the fishing nations sought to protect their economic
interests and the coastal states to establish their sovereign rights. The article then traces the
development and elaboration of the provisions on conservation and management of living
resources at the Law of the Sea Conference, through the "Main Trends" paper, the work of
the Evensen Group and the Group of 77, to the negotiating texts themselves.

In a third part, the article describes the provisions on the conservation and management of
living resources in the exclusive economic zone as they were finally agreed upon in the
Convention. The author concludes with some general observations on the nature of the
exclusive economic zone, the sovereign rights of coastal states in that zone and the
responsibilities they bear for the management of the living resources of the zone.

INTRODUCTION

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.
 The Law of the Sea, United Nations Convention on the Law of the Sea with Index and Final
2

Act of the Third United Nations Conference on the Law of the Sea, United Nations Sales No.
E.83.V.5 (UN: New York, 1983).

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." 3

3
 Ibid.

HISTORICAL BACKGROUND OF THE EXCLUSIVE ECONOMIC ZONE CONCEPT

The first important assertion of exclusive jurisdiction over marine resources beyond the
territorial sea was made by the United States of America in the Truman Proclamation of 28
September 1945 on the continental shelf.4 The Proclamation states that "having concern for
the urgency of conserving and prudently utilizing its natural resources, the Government of
the United States regards the natural resources of the subsoil and sea-bed of the continental
shelf beneath the high seas but contiguous to the coasts of the United States as
appertaining to the United States, subject to its jurisdiction and control". Concurrently, a
second Proclamation5 was issued with respect to coastal fisheries. This Proclamation states:

"In view of the pressing need for conservation and protection of fishery resources, the
Government of the United States regards it as proper to establish conservation zones in
those areas of the high seas contiguous to the coasts of the United States wherein fishing
activities have been or in the future may be developed and maintained on a substantial
scale. Where such activities have been or shall hereafter be developed and maintained by
its nationals alone, the United States regards it as proper to establish explicitly bounded
conservation zones in which fishing activities shall be subject to the regulation and control of
the United States."

4
 An earlier document, "The Submarine Areas of the Gulf of Paria (Annexation) Order" was
issued in 1942 by the United Kingdom. It appropriated the sea-bed area of the Gulf of Paria
and maintained freedom of navigation. However, the Truman Proclamation contained a
rationale for the continental shelf and must be considered to be the most important, if not the
first, legal instrument dealing with the subject.
Proclamation No. 2667, "Policy of the United States with Respect to the Natural Resources
of the Subsoil and Sea-Bed of the Continental Shelf", 28 September 1945, 10 Fed. Reg.
12303; XIII Bulletin, Dept. of State, No. 327, 30 September 1945, p. 485.

 "Proclamation No. 2668. Policy of the United States with Respect to Coastal Fisheries in
5

Certain Areas of the High Seas". 28 September 1945, 10 Fed. Reg. 12304.

In both Truman Proclamations, the freedom of navigation was maintained.

UNILATERAL DECLARATIONS OF SOVEREIGNITY6

6
 For additional examples of unilateral declarations and bilateral agreements asserting rights
in submarine areas during the 1940s, see Lauterpacht, H. 1950. Sovereignty over
Submarine Areas. British Yearbook of International Law, London, Oxford Univ. Press.
(1951): 379-383.

Chile and Peru. While some of the concepts expressed in the Truman Proclamation found
their way into the Convention, the true parents of the exclusive economic zone concept were
certain Latin American states. In 1947, the declaration made by the President of Chile on 23
June7 and Decree 781 of 1 August8 by the Government of Peru established maritime zones of
200 miles. The Chilean declaration proclaimed national "sovereignty over submarine areas,
regardless of their size or depth, as well as over the adjacent seas extending as far as
necessary to reserve, protect, maintain, and utilize natural resources and wealth". It further
established the demarcation of "protection zones for whaling and deep sea fishery" to extend
to 200 nautical miles from the coasts of Chilean territory.

 Presidential Declaration Concerning Continental Shelf of 23 June 1947, El

7

Mercurio, Santiago de Chile, 29 June 1947.

 Presidential Decree No. 781 of 1 August 1947, El Peruano: Diario Oficial. Vol. 107, No.
8

1983, 11 August 1947.

The source of the "mystical" 200-mile limit has recently been traced by Armanet9. Although
the motivation for the establishment of the zone was economic, Armanet suggests that the
legal precedent was derived from a map in a magazine article discussing the Panama
Declaration of 1939 in which the United Kingdom and the United States agreed to establish
a zone of security and neutrality around the American continents in order to prevent the
resupplying of Axis ships in South American ports. The map showed the width of the
neutrality zone off the Chilean coast to be about 200 miles. This became the basis for the
200-mile limit. In both the Chilean declaration and the Peruvian decree, freedom of
navigation was maintained.

 Armanet, United Nations Conference on the Law of the Sea: The 1974 Caracas Session.
9

AJIL, Vol. 69.

Arab states. The Truman Proclamations had an effect not only in Latin America, but also
among certain Arab states. A succession of unilateral declarations were adopted by ten Arab
States and emirates within a two-month period in 194910.

 The dates of adoption of the declarations are as follows: Saudi Arabia, 28 May 1949;
10

Bahrain, 5 June 1949; Qatar, 8 June 1949; Abu Dhabi. 10 June 1949: Kuwait, 12 June 1949;
Dubai, 14 June 1949: Sharjah, 16 June 1949; Ras al Khaimah, 17 June 1949; Umm al
Qaiwain. 20 June 1949; Ajman, 20 June 1949. From: Dahak, D., 1986. Les Etats Arabes et
le Droit de la Mer, Tome 1. Casablanca, Les Editions Maghrébines, p. 123 (In French).

The declarations proclaimed sovereignty particularly over the petroleum resources on the
continental shelf; they had in common the following aspects:

- jurisdiction over the sea-bed and subsoil;

- an affirmation of the regime of the high seas, the freedoms of navigation and overflight;
- the use of the expression "submerged lands" rather than "continental shelf"; and
- delimitation effected on the basis of equitable principles.11

 Ibid., pp. 123-130

11

Thus, among the above states, there was consensus as early as 1949 on the principle of
sovereignty over the natural resources on the "continental shelf".

THE LATIN AMERICAN PERSPECTIVE

The Santiago Declaration. The first international instrument to proclaim a 200-mile limit

came into being five years later on 18 August 1952.12 The Santiago Declaration was signed
by three Latin American countries that border the South Pacific: Chile, Ecuador and Peru.
The Declaration reflects the main driving force behind it which was the desire of those states
to develop the resources of their coastal waters. It asserts that "owing to the geological and
biological factors affecting the existence, conservation and development of the marine fauna
and flora of the waters adjacent to the coasts of the declarant countries, the former extent of
the territorial sea and contiguous zone is insufficient to permit of the conservation,
development and use of those resources, to which the coastal countries are entitled".
Therefore, the three governments "proclaim as a principle of their international maritime
policy that each of them possesses sole sovereignty and jurisdiction over the area of sea
adjacent to the coast of its own country and extending not less than 200 nautical miles from
the said coast". The Declaration also provided for sole sovereignty and jurisdiction over the
sea floor and subsoil and maintained the principle of innocent passage through the zone but
not, as in the Chilean and Peruvian legislation, freedom of navigation.

 Declaration on the Maritime Zone. United Nations Legislative Series, ST/LEG/SER.B/6

12

(United Nations, New York, 1957), pp. 723-724.

At the first and second United Nations Conferences on the Law of the Sea held in Geneva in
1958 and 1960, the principles embodied in the Santiago Declarations garnered little support
and left Chile, Ecuador and Peru in an isolated position. However, if states were unwilling to
support those ideas in an international political forum, they were not as hesitant at home.
Over the decade of the 1960s several other Latin American states established 200-mile
maritime zones. By 1970, when the United Nations General Assembly adopted Resolution
2750 (XV) which provided the mandate for the Committee on the Peaceful Uses of the Sea-
Bed and the Ocean Floor beyond the Limits of National Jurisdiction to act as the preparatory
body for the Third United Nations Conference on the Law of the Sea, nine Latin American
states had declared sovereignty and jurisdiction over all waters within 200 miles of their
coasts. These states were: Ecuador, Panama, Brazil, Chile, Peru, El Salvador, Argentina
and Nicaragua. Although the proclamation of these countries differed, the purpose of
establishing a legal framework under which the state conserved and exploited the natural
resources within the waters adjacent to its coast was common to all.

The Montevideo and Lima Declarations. The position of the Latin American states was
somewhat solidified in two international agreements signed in 1970: the Montevideo
Declaration on the Law of the Sea13 and the Declaration of Latin American States on the Law
of the Sea (the Lima Declaration)14.

 The Montevideo Declaration on the Law of the Sea of 8 May 1970. In Lay, S.H., Churchill,
13

R. Nordquist, M., eds. New directions in the Law of the Sea, Documents, Vol. I, (Oceana:
Dobbs Ferry, New York, 1973), pp. 235-236.

 The Declaration of Latin American States on the Law of the Sea (The Lima Declaration) of
14

8 August 1970. Ibid., pp. 237-239.

The Montevideo Declaration came about as the result of a request by the Secretary-General
of the United Nations to states to present their views regarding the convening of a new
United Nations Conference on the Law of the Sea. The twenty-fourth Session of the General
Assembly, in Resolution 2574A (15 December 1969), recommended that a broad survey be
made concerning revision of the regimes of the high seas, the continental shelf, the territorial
sea, the contiguous zone, conservation of the living resources of the high seas, and
particularly, an internationally-accepted definition of the area beyond the limits of national
jurisdiction.

As a result, the Government of Uruguay held, in Montevideo, a meeting with the other Latin
American states that had declared sovereignty over waters within a 200-mile limit, for the
purpose of coordinating their position. The nine previously-mentioned Latin American states
met and approved the Montevideo Declaration.

The Montevideo Declaration contains, inter alia, two basic principles:

 The right of coastal states to avail themselves of the national resources of the sea adjacent
to their coasts and the sea-bed and subsoil thereof in order to promote the maximum
development of their economies and to raise the standard of living of their peoples; and

 The right to establish the limits of their maritime sovereignty and jurisdiction in accordance
with their geographical characteristics and with the factors governing the existence of marine
resources and the need for their rational utilization.

The Declaration also maintained freedom of navigation and overflight by ships and aircraft of
all nations in areas under their maritime sovereignty and jurisdiction.

During the Montevideo meeting, Peru proposed a second meeting of all Latin American
states to be held in Lima in August 1970. Twenty states attended the Lima meeting and the
resulting Declaration was approved by fourteen states (the nine signatories of the
Montevideo Declaration plus Colombia, the Dominican Republic, Guatemala, Honduras and
Mexico).

The Lima Declaration reiterates the principles of the Montevideo Declaration with two
additional concepts included:

 the right of the coastal state to prevent contamination of the waters and other dangerous
and harmful effects that may result from the use, exploration or exploitation of the area
adjacent to its coast; and

 the right of the coastal state to authorize, supervise and participate in all scientific research
activities that may be carried out in the maritime zone, subject to its sovereignty and
jurisdiction, and to be informed of the findings and the results or such research.
Thus, by 1970, a majority of Latin American states had accepted a generally-defined
concept of resource jurisdiction over an extended area of coastal sea. The limits of the zone
and the exact nature of the zone were still to be given precision, but the basic elements were
clearly apparent. Rooted in economic interests, the Latin American coastal states had
asserted sovereignty over maritime areas vastly greater than any previously claimed.

There were also indications at the Lima meeting of what would eventually become an
important issue during the Third United Nations Conference on the Law of the Sea -
accommodation of the interests of land-locked states. Bolivia and Paraguay cast negative
votes in protest at the failure to provide for geographically disadvantaged states.

The Declaration of Santo Domingo. The Declaration of Santo Domingo of 9 June 197215 is

one of the immediate precursors of the exclusive economic zone. A subregional conference,
"The Special Conference of the Caribbean Countries on Problems of the Sea", was attended
by 15 Caribbean states: Barbados, Colombia, Costa Rica, Dominican Republic, Guatemala,
Haiti, Honduras, Jamaica, Mexico, Nicaragua, Panama, Trinidad and Tobago and
Venezuela. El Salvador and Guyana attended as observers. It was the Santo Domingo
Declaration that brought the concept of the patrimonial sea into focus. The section entitled
"Patrimonial Sea" repeated some elements previously stated in the Montevideo and Lima
Declarations, but was much more precise about making a distinction between the territorial
sea and the patrimonial sea. The patrimonial sea was described as follows:

 The coastal state has sovereign rights over the renewable and non-renewable natural
resources which are found in the waters, in the sea-bed and in the subsoil of an area
adjacent to the territorial sea called patrimonial sea.

 The coastal state has the duty to promote, and the right to regulate, the conduct of
scientific research within the patrimonial sea, as well as the right to adopt the necessary
measures to prevent marine pollution and to ensure its sovereignty over the resources of the
area.

 The breadth of this zone should be the subject of an international agreement, preferably of
a world-wide scope. The whole of the area of both the territorial sea and the patrimonial sea,
taking into account geographic circumstances, should not exceed a maximum of 200
nautical miles.

 The delimitation of this zone between two or more states should be carried out in
accordance with the peaceful procedures stipulated in the Charter of the United Nations.

 In this zone, ships and aircraft of all states, whether coastal state or not, should enjoy the
right of freedom of navigation and overflight with no restrictions, other than those resulting
from the exercise by the coastal state of its rights within the area. Subject only to these
limitations, there will also be freedom for laying of submarine cables and pipelines.

 The Declaration of Santo Domingo of 9 June 1972. Ibid., pp. 247-249.

15

In the patrimonial sea concept, the main emphasis was placed on economic jurisdiction. The
coastal state has "sovereign rights over the renewable and non-renewable resources", not
over the patrimonial sea itself. In making this distinction, however, a rift was created among
the Latin American states dividing them into two groups: the territorialists and the
patrimonialists.
One additional legislative contribution to the evolution of the exclusive economic zone
concept in the Latin American region was the Resolution of 9 February 1973 adopted by the
Inter-American Juridical Committee16. The document is interesting in several respects, not
the least of which is that it appears to be an effort to close the gap between the territorialists
and the patrimonialists. The result, however, is a return to the imprecise language with
regard to sovereignty and jurisdiction similar to that of the Montevideo and Lima
Declarations. The Resolution states: "... sovereignty or jurisdiction of a coastal State extends
beyond its territory and its internal waters to an area of sea adjacent to its coasts to a
maximum distance of 200 nautical miles, as well as to the airspace above and the bed and
subsoil of that sea". It includes other features that appeared in the Santo Domingo
Declaration such as the right of the coastal state to make regulations governing scientific
research activities and for the purpose of preventing, reducing or eliminating the damage of
pollution to the marine environment. A last significant element of the Resolution was the
inclusion of a statement on the position of land-locked states, granting them participation in
the exploitation of living resources within the zone that extends from the twelve-mile limit to
the limit of 200 nautical miles. Among other participate in all scientific research activities
ultimately resolved in the United Nations Conference, the question of the rights of land-
locked states was one of the most important. The inclusion in the Resolution of text on this
issue further supports the attempt to reconcile the different points of view among the Latin
American states.

 12 ILM, 1972, pp. 711-713.

16

THE AFRICAN AND ASIAN PERSPECTIVE

The Asian-African Legal Consultative Committee. The Latin American states were not
working in isolation in the early 1970s on the development of new principles governing the
Law of the Sea. At the Montevideo meeting, measures were taken to make contact with
countries in Asia and Africa. Simultaneously, the Asian-African Legal Consultative
Committee (AALCC) agreed at its 1970 meeting to include the subject of the Law of the Sea
on the agenda of its 1971 meeting in Colombo. The Colombo meeting was attended by
observers from Argentina, Brazil, Ecuador and Peru. The report of the Subcommittee on the
Law of the Sea states that "the Sub-Committee, with the exception of a very few delegations,
considered that at the present time any State would be entitled, under international law, to
claim a territorial sea of twelve miles from the appropriate baseline. The majority of
delegations indicated that a State had the right to economic exploitation of the resources in
the waters adjacent to the territorial sea in a zone, the maximum breadth of which should be
subject to negotiation. Most delegations felt able to accept twelve miles as the breadth of the
territorial sea, while supporting, in principle, the right of a coastal State to claim exclusive
jurisdiction over an adjacent zone for economic purposes".17 At the Colombo session, the
AALCC set up a Working Group, in addition to the Sub-Committee, composed of delegates
from Ceylon, India, Indonesia, Japan, Kenya and Malaysia. The importance of this group,
and particularly the role of Kenya, became apparent at the thirteenth Session of the AALCC
in 1972.

 Report of the Sub-Committee on the Law of the Sea by the Asian-African Consultative
17

Committee, Colombo, 18-27 January 1971.

At this meeting, a working paper prepared by Kenya, was presented on "The Exclusive
Economic Zone Concept". The paper attempted to define the important features of the new
concept in terms of the rights and obligations of both the coastal state and the international
community. The rationale for the emergence of the exclusive economic zone concept was
clearly stated: the "present regime of the high seas benefits only the developed
countries...".18 The developed countries, because of their advanced technologies, were able
to engage in distant-water fishing activities wherever and whenever they chose to do so. At
the same time, developing countries were often incapable of exploiting the resources in
waters closely adjacent to their own coasts much less in waters great distances away.
Therefore, a tendency had grown among developing countries to extend their territorial seas
up to 200 miles in an effort to compensate for their technologically disadvantaged position.
This tendency, in turn, created a concern among the major maritime nations that extensions
of sovereignty would have a negative effect on traditional freedoms of navigation and
overflight. The exclusive economic zone concept was put forward as a compromise solution
to these conflicting concerns.

 Report of The Thirteenth Session of the Asian-African Consultative Committee, Lagos, 18-
18

25 January 1972.

The working paper contained ideas which would be submitted by Kenya to the Sea-Bed
Committee later that year in the form of draft articles. The draft articles were based on an
approach which gave the coastal state sovereign rights and the exercise of exclusive
jurisdiction over living and non-living resources and over the prevention and control of
pollution in an economic zone which would not exceed 200 nautical miles. The freedoms of
navigation, overflight and the laying of submarine cables and pipelines were recognized as
well as the possibility of access by other states to the resources of the zone.

The Yaoundé Conclusions. In June of 1972, almost concurrently with the Santo Domingo
meeting of Caribbean states, 16 African states met at a regional seminar on the Law of the
Sea in Yaoundé, Cameroon. The "Conclusions"19 adopted unanimously by the 16
participating states are comparable to the proposals of the Lima Declaration.
Recommendation I states that "African States have equally the right to establish beyond the
territorial sea, an economic zone over which they will have exclusive jurisdiction and national
exploitation of the living resources of the sea and their conservation for the primary benefit of
their people and their respective economies, and for the purpose of the prevention and
control of pollution". With regard to biological resources of the sea, it recommends that
African states extend "sovereignty over all the resources of the high seas adjacent to their
territorial sea within an economic zone to be established, and which will include at least the
continental shelf". The recommendation did not define the exact breadth of the zone
because of disagreement between coastal and land-locked states. The Yaoundé
Conclusions are significant because they were the first comprehensive effort by the African
states to put together a regional position.

 Conclusions in the General Report of the African States Regional Seminar on the Law of
19

the Sea, held at Yaoundé, 20-30 June 1972. United Nations Legislative

Series, ST/LEG/SER.B/16, p. 601.

The Addis Ababa Declaration. The position of the African states was given further authority
with the adoption of the Declaration of the Organization of African Unity on the "Issues of the
Law of the Sea" of 2 July 1973.20 Familiar principles were reiterated in the Declaration similar
to the Kenyan proposals in the AALCC. One modification to the Kenyan proposals was the
inclusion of scientific research as being subject to the jurisdiction of the coastal state. Other
principles included: the right of each coastal state to establish an exclusive economic zone
beyond its territorial sea, the limits of which would not exceed 200 nautical miles, measured
from the baselines establishing the territorial sea; permanent sovereignty over all the living
and mineral resources in that zone; the right of the coastal state to manage that zone without
undue interference with other legitimate uses of the sea, such as freedom of navigation,
overflight and laying of cables and pipelines; the recognition of the right of land-locked and
other disadvantaged countries to share in the exploitation of living resources of neighbouring
economic zones on the same basis as the nationals of the coastal states.
  UNCLOSOR, Vol. III, p. 63-65.
20

The apparent unanimity among the African states, as evidenced by widespread support for
the above-mentioned documents, should not obscure the fact that with regard to the
exclusive economic zone, just as with the Latin American states, different positions were
taken on the nature of the zone. These differences would become more apparent in the
debates held in the Third United Nations Conference on the Law of the Sea. The general
concept, however, had been firmly established and it was left to the international community
as a whole to define the zone precisely and to make it universally acceptable.

THE SEA-BED COMMITTEE 1971-73

Pursuant to Resolution 2340 (XXII) of 18 December 1967,21 the United Nations established

an "Ad Hoc Committee to Study the Peaceful Uses of the Sea-Bed and Ocean Floor beyond
the Limits of National Jurisdiction" consisting of 35 states. The Committee recommended the
establishment of a Standing Committee, and by Resolution 2467 (XXIII) of 21 December
196822, a permanent "Committee on the Peaceful Uses of the Sea-Bed and the Ocean Floor
beyond the Limits of National Jurisdiction", consisting of 42 states was established. The next
significant legislative action took place in 1970 at the Twenty-fifth Session of the General
Assembly with the adoption of two resolutions:23 Resolution 2749 (XXV) containing the
"Declaration of Principles Governing the Sea-Bed and the Ocean Floor, and the Subsoil
Thereof, beyond the Limits of National Jurisdiction" and Resolution 2750C (XXV) which
called for the convening of a new Conference on the Law of the Sea in 1973.

 GAOR/RES, Twenty-Second Session, Supp. No. 16 (A/6716), pp. 14-15.

21

 GAOR/RES, Twenty-Third Session, Supp. No 18 (A/7218) p. 15.

22

 GAOR/RES, Twenty-Fifth Session, Supp. No. 28 (A/8028) pp. 24, 260

23

The Sea-Bed Committee held its first session in March 1971 and decided, in preparation for
the future Conference, to delegate to its Sub-Committee II the task of preparing a
comprehensive list of subjects and issues relating to the Law of the Sea, including those
concerning the regimes of the high seas, the continental shelf, the territorial sea (including its
breadth and the question of international straits), the contiguous zone, fishing and
conservation of the living resources of the high seas (including the question of preferential
rights of coastal states), and to prepare draft articles on those topics.

As we have seen from the brief history of the exclusive economic zone concept outlined
above, discussions in regional fora were taking place at the same time as the Sea-Bed
Committee was doing its work.

Thus, in the Sea-Bed Committee in the years 1971-73, those same ideas evolving outside
the United Nations were evident even though initially no formal proposals were made.

In 1972, the Kenyan delegation submitted "Draft Articles on Exclusive Economic

Concept".24 The Kenyan proposals reflected a concept of the zone very similar to that of the
patrimonial sea. The zone was primarily functional rather than territorial. The draft articles
stated that "all States have the right to establish an economic zone beyond the territorial sea
for the primary benefit of their peoples and their respective economies in which they shall
exercise sovereign rights over natural resources for the purpose of exploration and
exploitation". Further, "... the State may establish special regulations within its economic
zone for: (a) Exclusive exploration and exploitation of non-renewable resources; (b)
Exclusive or preferential exploitation of renewable resources; (c) Protection and
conservation of the renewable resources; (d) Control, prevention and elimination of pollution
of the marine environment; and (e) Scientific research".

 GAOR, Sea-Bed Comm., Twenty-Seventh Session, Supp. No. 21 (A/8721), pp. 180-182.

24

The coastal state would permit exploitation of living resources within the zone by
"neighbouring developing land-locked, near land-locked and countries with a small shelf".
The limits of the zone would be fixed but, in any case, would not exceed 200 nautical miles
and the establishment of the zone would be without prejudice to the exercise of the
freedoms of navigation, overflight and the laying of submarine cables and pipelines.

Up to this point, this article has described events taking place solely in the developing
countries. The economic zone concept was clearly of developing country origin, initiated by a
few Latin American states, refined by Caribbean states and defined explicitly by the African
states. In this evolution, the coastal states began to accommodate the interests of the group
of land-locked states. The third important group of states was the distant-water fishing
states. This group began to make itself heard in the Sea-Bed Committee through
documentation submitted to Subcommittee II. One immediately notices that the
preoccupation in the texts of the developed countries was with fishing, since the 1958
Convention on the Continental Shelf had already dealt with non-living resources. Underlying
the preoccupation with fishing was the matter of ensuring that the strategic use of the zone
was in no way curtailed and that the traditional freedoms of the high seas for non-resource
related activities were preserved. The issue in the Sea-Bed Committee quickly became
clear: would the rights of the coastal states in the economic zone be exclusive sovereign
rights or preferential fishing rights. Preferential rights were favoured by states wanting to
avoid establishment of the zone. Those documents supporting preferential rights are marked
by the introduction into the debate of detailed provisions which would limit the powers of the
coastal states in specific ways through conservation principles and would establish special
regimes for certain species of fish. The debate continued through the 1973 session, setting
the stage for the Third United Nations Conference on the Law of the Sea in 1974.

THE THIRD UNITED NATIONS CONFERENCE ON THE LAW OF THE SEA

The Third United Nations Conference on the Law of the Sea began its work on 3 December
1973. Three main committees were established. Maritime areas subject to national
jurisdiction and the high seas, including the territorial sea, continental shelf, the exclusive
economic zone and the regime of straits used for international navigation were assigned to
the Second Committee. At the second session in the summer of 1974, the Second
Committee produced the "Main Trends" paper, the purpose of which was to reflect the main
trends which had emerged from the proposals submitted either to the Sea-Bed Committee or
to the Conference25.

 UNCLOSOR, Vol. III, pp. 107-142.

25

The Uruguayan delegate, Lupinacci, has described the three basic trends that had taken
form by the 1974 session of the Conference. He states: "The territorialist trend, starting from
the postulate of the 200-mile territorial seas, gradually accepted restrictions to the jurisdiction
of coastal states, beyond the first 12 miles, until it reached the point of recognizing, in the
remaining 188-mile belt, the freedoms of sovereignty for the sake of international
cooperation..."

Another trend was at first called preferentialist, because it recognized only preferential rights
of the coastal states beyond the territorial sea in respect of the exploitation of living
resources; its point of departure was, therefore, the recognition of certain special rights or a
projection of specialized powers of the coastal States in areas of the high seas contiguous to
the territorial waters... The final trend was zonist within which the patrimonialist attitude was
subsumed and which presupposed the creation of a new juridical institution to regulate a
maritime space possessing characteristics of its own and therefore not forming part either of
the territorial waters or of the high seas.26

 Lupinacci, J.C. 1984, The legal status of the Exclusive Economic Zone in the 1982
26

Convention on the Law of the Sea. In Orrego Vicuña, F., ed. The exclusive economic zone,
a Latin American perspective. Boulder, Colorado. Westview Press.

As we have seen, the evolution of the exclusive economic zone concept took place in the
developing world. The effort to protect the living resources of nearby coastal waters resulted
in a concept which defined the rights of the coastal state. The reaction of the major fishing
nations was to impose obligations through resource management schemes, rather than to
challenge the concept itself. In the following section, we shall examine how those
compromise solutions were reached by examining the evolution of the fisheries regime.

THE CONSERVATION AND MANAGEMENT OF LIVING RESOURCES

It is no accident that seven of the 21 articles of Part V of the Convention deal with living
resources. Faced with the prospect of coastal states cutting off or severely limiting access to
fish, the major fishing nations began to make proposals that would limit the powers of the
coastal state. These proposals were introduced as early as 1971 in the Sea-Bed Committee.
The United States of America in a set of draft fisheries articles,27 favoured a "species"
approach to coastal state jurisdiction over fisheries. Also proposed was a kind of "trusteeship
zone" which would be under coastal state supervision. The Union of Soviet Socialist
Republics, however, favoured "preferential rights" over fisheries for the coastal state.28

 GAOR, Sea-Bed Comm., Twenty-Sixth Session, Supp. No. 21, (A/8421), pp. 241-245. cf.
27

"Revised Draft Fisheries Article", submitted by the United States, GAOR, Sea-Bed
Comm., Twenty-Seventh Session, Supp. No. 21 (A/8721), pp. 175-179.

 GAOR, Sea-Bed Comm., Twenty-Seventh Session, Supp. No. 21 (A/8721), pp. 158-161.

28

The United States, in its draft fisheries articles, suggested several principles which
eventually found a home in the final Convention provisions. Among the conservation
principles put forth was that "allowable catch and other conservation measures shall be
established which are designed, on the basis of the best evidence available, to maintain or
restore the maximum sustainable yield, taking into account relevant environmental and
economic factors". Under this scheme, the coastal state could allocate to itself whatever
percentage it was capable of harvesting of the allowable catch of a given fish stock in the
waters adjacent to its territorial sea. The articles also distinguished between coastal and
anadromous species and highly migratory species. The above scheme for management of
fisheries resources is an important component of the compromise solutions eventually
reached between the territorialists and the major fishing nations.

SEA-BED COMMITTEE

It is useful to look at various documents submitted by the fishing nations to the Sea-Bed
Committee in 1972; in these documents can be traced the sources of the duties and
obligations imposed on the coastal states in the 1982 Convention. Several documents are of
particular interest because they contain suggestions that reflect variations in the positions
taken by the fishing nations in an effort to protect their economic interests. Brief summaries
of these documents follow.
1972

(a) Draft articles on fishing by the USSR.29 The Soviet draft articles reflect an approach
based on preferential rights granted to the coastal state with regard to fishing in the areas of
the high seas adjacent to the coasts of developing countries. In the "Explanatory Note"
accompanying the USSR document, a rationale for the proposed allocation of stocks is given
as follows:

"Of course, in solving the problem of fishing the legitimate interests of the peoples of other
States to use the fishery resources of the world oceans should not be overlooked. It is our
view that, should the stocks of fish not taken by a coastal State perish without being used by
other States, it would be an unjustifiable waste of valuable food resources so necessary to
mankind. The Soviet draft basic provisions for the article on fishing provide that the part of
the stocks of fish which is not reserved by a developing coastal State can be taken by other
States without detriment to the reproduction of the stocks of fish."

29
 Ibid.

Thus, the argument that many developing coastal states would not be able to utilize the
stocks fully and, consequently, would not be able to benefit fully from the establishment of
the economic zone, was made early on in the Sea-Bed Committee deliberations. This
principle of optimum utilization, along with maximum sustainable yield and allowable catch,
would become the subject of negotiation as the work progressed in the Conference.

(b) Working paper by Canada.30 Canada outlined a functional approach to fisheries

management which viewed such management as forming part of a broader concept of
management of the marine environment as a whole. The paper states that it is necessary to
differentiate between various groups of species with a view to identifying the types of regime
that would be most appropriate in each case. Four categories were identified: sedentary
species, coastal species, anadromous species and wide-ranging species. The paper also
stressed the special interest in and responsibility for the conservation of the living resources
of the sea adjacent to the coastal state's shore and that it should have the authority required
to manage those resources in a manner consistent with its special interest and responsibility,
as well as preferential rights in the harvest of such resources.

30 
Ibid., pp. 164-174.

On the subject of allocation, it was pointed out that if an appropriate formula were not
worked out, some states would be able to compete more effectively than others and, in
extreme cases, one or two participants would be able to appropriate most of the catch to
themselves.

Another important subject was that of access. The Canadian paper proposed controlled
access to a fishery to ensure that no more than the maximum biological yield would be
taken. The basic objective was that fisheries would be exploited so that the difference
between value of the yield and cost of obtaining the yield is at a minimum. This is achieved
by fishing at or slightly below the maximum sustainable yield.

(c) Revised draft fisheries articles by the United States.31 The US draft fisheries articles have
already been briefly mentioned above. In addition to the proposals already described, Article
V on "Utilization and Allocation" specified the basic principles for coastal and anadromous
species: the coastal state may reserve to its flag vessels that portion of the allowable catch
they can harvest; the coastal states shall provide access to other states, under reasonable
conditions, to that portion of the resources not fully utilized by its vessels on the basis of the
following priorities:

 States that have traditionally fished for a resource (subject to certain conditions);
 Other states in the region, particularly land-locked states; and
 All states, without discrimination among them.

 Ibid., pp. 175-179.

31

(d) Working paper by Australia and New Zealand.32  The Australian-New Zealand paper on
"Principles for Fisheries Regime" contained many of the same ideas presented in previous
proposals. The paper proposed the establishment of a coastal fishery resources zone where
the coastal state would have exclusive jurisdiction over the living resources of the sea in an
adequately wide zone of the high seas adjacent to its territorial sea. It was noted that the
fishery zone proposed could be incorporated into an economic zone concept covering all
resources, living and nonliving. The proposal further included, inter alia, coastal state
responsibility: to provide proper management and utilization of the living resources within its
zone, using specific methods for regulation such as licensing, limitation on gear, size of fish,
etc.; to determine the total allowable catch; and to allow access to foreign fishing up to the
level of allowable catch on an equitable basis and without discrimination. The working paper
has been seen as an effort to reconcile the territorialists and the preferentialists.

 Ibid., pp. 183-187.

32

(e) Proposals by Japan.33 The "Proposals for a regime of fisheries on the high seas" set forth
a list of preferential rights for coastal states, particularly developing coastal states, in relation
to distant-water fishing of other states in areas adjacent to the territorial sea. With regard to
allocation of resources, the document reads:

"Preferential rights shall entitle a developing coastal State annually to an allocation of

resources that corresponds to its harvesting capacity; the rate of growth of the fishing
capacity of that developing coastal State shall be duly taken into account to the extent that it
is able to catch a major portion of the allowable catch. They shall entitle a developed coastal
State to an allocation of resources necessary for the maintenance of its locally conducted
small-scale coastal fishery; the interests of traditionally established fisheries of other States
shall be duly taken into account in determining the part of the allowable catch thus
reserved..."

 Ibid., pp. 188-196.

33

In summary, then, by the end of 1972 the major issues had been voiced in one way or
another through the submission of various proposals. Subsumed under the larger battle of
exclusive sovereign rights versus preferential fishing rights the basic rules of the fisheries
regime were still to be debated. It was clear, and would become clearer in the following year,
that those rules would deal with the following issues: (i) allowable catch; (ii) determination of
harvesting capacity; (iii) utilization of living resources; and (iv) access to surplus.

1973

During the 1973 sessions of the Sea-Bed Committee, most of the proposals made were on
the legal status of the economic zone. With regard to fisheries, only four proposals were
submitted. They dealt with sovereign rights of coastal states for the exploration, exploitation,
conservation and management of living resources, international responsibilities of coastal
states, cooperation between coastal states and appropriate regional and global
organizations, and the rights of coastal states to establish regulations regarding fishing
activities and conservation programmes.

Some of the main points of the proposals made are summarized in the following section.

(a) Working paper by the United States.34 The United States pursued its species approach to
fisheries management through a paper entitled "Special considerations regarding the
management of anadromous fishes and highly migratory oceanic fishes", which presented a
rather detailed discussion of fishery management and exploitation based on the biological
nature of anadromous and highly migratory species. With regard to tuna, the United States
argued that international management of the fishery for conservation purposes was required
because of their occurrence in and beyond multiple national jurisdictions and because they
are fished by nationals of several countries.

 GAOR, Sea-Bed Comm., Vol. III, Twenty-Eighth Session, Supp. No. 21, (A 9021), pp. 11-
34

19.

(b) Draft articles on fishing by Zaire.35 The draft articles submitted by Zaire dealt primarily
with preferential treatment among neighbouring developing states in economic zones for the
exploitation of living resources and the rights of geographically disadvantaged states.

 Ibid., pp. 114-115.

35

(c) Draft articles on fisheries in national and international zones in ocean space by Ecuador,
Panama and Peru.36 The proposals contained in the paper submitted by Ecuador, Panama
and Peru were based on the idea that the sovereignty, and therefore jurisdiction, of the
coastal state extended to the area adjacent to its coasts and to the resources of the sea, the
sea-bed and the subsoil up to a distance of 200 nautical miles measured from the
appropriate baselines. The right of the coastal state to regulate and exploit the living
resources within that area was thus a consequence of the exercise of its sovereignty, from
which it could not be disassociated.

 Ibid., pp. 107-109.

36

(d) Draft articles on fisheries by Canada, India, Kenya and Sri Lanka.37 The aforementioned
proposal by Kenya on the exclusive economic zone made no specific mention of coastal
state obligations with regard to fishing. In the draft articles on fishing, of which Kenya was
one of the co-sponsors, it is noted that "the substance of this proposal is complementary to
the concept of the exclusive economic zone and should be considered a part thereof". The
articles are an elaboration of the Kenyan exclusive economic zone proposal and contain
very similar language in some provisions. The substance of the proposal is that the coastal
state has a right to establish an exclusive fishery zone in which a coastal state shall enjoy
preferential rights to the resources and may reserve for its nationals a portion of the
allowable catch corresponding to its harvesting capacity. With regard to highly migratory
species that range outside the zone, regulations would be made by an authority designated
by the Conference on the Law of the Sea. However, it is also stated that regulations may be
made on a regional basis for the exploration, exploitation, conservation and development of
living resources outside the limits of the zone where those resources are of limited migratory
habits and thus breed, feed and survive on other resources of the region. An article on
anadromous species was left blank.

 Ibid., pp. 82-84.

37
THE THIRD UNITED NATIONS CONFERENCE ON THE LAW OF THE SEA

1974

The first substantive session of the Third United Nations Conference on the Law of the Sea
was held in Caracas from 20 June to 29 August 1974. As previously mentioned, the
Chairman of Committee II produced a summary of the proposals before the Committee
entitled "Main Trends",38 which reflected the main proposals presented in the form of draft
articles on substantive issues. Variants on substantive issues were presented in an
organized fashion.

 UNCLOSOR, Vol. III, pp. 107-142.

38

The central issue remained the nature and content of the exclusive economic zone since, by
this time, the exclusive economic zone concept itself, in one form or another, had been
proposed by over 100 countries. With respect to fisheries, Stevenson and Oxman39 have
noted three main approaches. "One is complete exclusivity with no coastal state duties.
Another is the US approach, which couples exclusive coastal state regulation with
conservation and full utilization duties, and special treatment for anadromous species and
highly migratory species. A third emphasizes the role of regional organizations."

 Stevenson, J.R. and Oxman, B.H. 1975. The Third United Nations Conference on the Law
39

of the Sea: The 1974 Caracas Session. AJIL, Vol. 69

1975

(a) Group of Juridical Experts. Whereas the "Main Trends" paper laid out alternatives in an
organized fashion, the 1975 session of the Conference saw the emergence of the informal
Single Negotiating Text (SNT) which formed the basis for negotiations at the fourth session
in 1976.

The spring of 1975 also saw an informal text prepared by Jens Evensen of Norway as
Chairman of a Group of Juridical Experts,40 the so-called "Evensen Group" on the economic
zone. The group was composed of about 40 participants from all regions and interest
groups, acting in their personal capacities.

 The Economic Zone, 24 April 1975. In Platzoder, R. ed. The Third United Nations

40

Conference on the Law of the Sea: Documents, Vol. IV, (Oceana: Dobbs Ferry, New York,
1983) pp. 209-217.

The text prepared by Evensen on his personal responsibility was not a negotiated text, and
several participants expressed reservations to formulations contained therein. It comprised
15 articles divided into two categories: general provisions (articles 1-4) and living resources
(articles 5-15). Articles 1-4 included coastal states' sovereign rights and jurisdiction over
economic activities, extension of the zone to 200 miles, the rights of third states to enjoy the
freedoms of navigation and overflight, the laying of submarine cables and pipelines and
other internationally lawful uses of the sea related to navigation and communication, and the
exclusive rights of coastal states regarding construction, operation and use of artificial
islands, installations and structures, including the right to establish safety zones around
them.

Articles 5 and 6 elaborated the obligations of coastal states, in exercising their sovereign
rights, to ensure through proper management and conservation measures that the living
resources are not endangered by over-exploitation. With regard to allowable catch, the
coastal state is required to maintain populations at levels which can produce the maximum
sustainable yield. The coastal state shall also promote the objective of optimum utilization
and give other states access to that part of the allowable catch which it does not have the
capacity to harvest. Fishing by third states shall comply with regulations established by the
coastal state relating to licensing, quotas of catch, times and areas of fishing, etc.

Article 7 enjoined states to cooperate in seeking to elaborate standards and guidelines for
conservation and rational utilization of living resources directly or within the framework of
appropriate international fisheries organizations. It also addressed the issue of cooperation
with regard to the conservation of straddling stocks where they occur within the economic
zones of two or more coastal states, and where they occur both within the economic zone
and in an area beyond and adjacent to the zone.

Article 8 covered non-prejudicial treatment of neighbouring states. Article 9 called for

negotiations on access to the living resources on an equitable basis with adjoining
geographically disadvantaged states and, in some cases, the granting of preferential rights,
and article 10 gave to land-locked states access to participate in the exploitation of living
resources on an equitable basis. Article 11 prohibited transfer of rights without coastal state
consent. Articles 12-14 dealt with highly migratory species and anadromous and
catadromous species, although the highly migratory species article was left blank as the
regime was still under discussion. Article 15 dealt with enforcement.

(b) Working paper on the exclusive economic zone by the Group of 77. The work of the
Evensen group brought a reaction from the Group of 77, particularly among the extreme
territorialists, to give the economic zone a stronger coastal state orientation, and a reaction
from the land-locked and geographically disadvantaged states to increase their efforts
toward gaining access to neighbouring coastal state fishing grounds.

"The Working Paper on the Exclusive Economic Zone" transmitted to the Chairman of the
Second Committee by the Chairman of the Group of 7741 strongly reiterated the position of
the land-locked and geographically disadvantaged states. In its eight articles, there is not a
single article dealing with a fisheries regime. The absence of articles on fisheries reflects the
territorialist nature of the zone as described through the declared rights of coastal states.
Article 2 proposes "sovereign rights" for the purpose of exploring, exploiting, conserving and
managing the natural resources, whether renewable or non-renewable, of the water column,
the sea-bed and subsoil, as well as with regard to other economic activities, such as the
production of energy from the water, currents and winds. The article goes on to claim that
the coastal state has "jurisdiction" with respect to regulation, control and preservation of the
marine environment including pollution control and abatement and, finally, the coastal state
has "exclusive jurisdiction" over scientific research and the establishment and use of artificial
islands, installations, structures and other devices, customs, fiscal, health, public order and
immigration.

 Working Paper on the Exclusive Economic Zone. 1 May 1975. Ibid., pp. 227-230.
41

(c) The Single Negotiating Text. In April 1975, the Informal Consultative Group of the Whole
on the Economic Zone was established by the Second Committee.42 At its first meeting, the
Chairman stated that "the coastal State's sovereign rights with respect to renewable and
non-renewable resources in the economic zone is no longer a matter of controversy".43 The
Group then proceeded to consider how other interests might be accommodated in the zone
and what was the extent of those interests. The issues mentioned and discussed were: other
economic activities in the zone, coastal state's rights or jurisdiction over scientific research,
artificial islands and installations, the freedoms of navigation and overflight and the laying of
submarine cables and pipelines. The working paper used in the discussions was the "Main
Trends" paper and the Group continually referred to what delegations thought should be
included in the single text which at this point was seen to be emerging. Delegations spoke in
their representative capacities as well as on behalf of the major interest groups whose views
had to be accommodated in any viable and broadly acceptable text. It was as a result of the
discussions in this broad-based forum that the political balance that was eventually reflected
in the Single Negotiating Text was synthesized. The Single Negotiating Text had to be based
on two important premises: the first was a balance among the competing interests within the
exclusive economic zone, and the second was the extent and nature of the zone in the
overall context of the wider package of the Convention as a whole.

 UNCLOSOR, Vol. IV, p. 196.

42

 Statement of S. Nandan (Fiji), Chairman, from "Informal Notes of the Secretariat of the
43

Second Committee", First Meeting of Informal Consultative Group on Economic Zone, 24

April 1975.

The wording of the SNT on the exclusive economic zone is almost identical to that contained
in the 1982 Convention signifying in retrospect that the battle over the coastal states' rights
in respect of the natural resources of the oceans adjacent to their territorial seas was over.
There were still, however, certain matters which needed to be clarified. These related to: the
issue of residual rights in the exclusive economic zone; the rights of land-locked and
geographically disadvantaged states to the resources of the zones of their neighbouring
states; and the question of peaceful settlement of disputes arising out of the exercise of
sovereign rights by the coastal states in the zone. Thus, although the Conference would
continue for six more years, the debate on the control of fisheries and the mineral resources
of the exclusive economic zone was essentially over.

The issue of "residual rights" not attributed specifically to the coastal state or to a third state
needed to be certified in order to take into account future activities, such as uses of the sea
not yet discovered, or certain strategic uses not yet contemplated in the Convention but
traditionally practised as part of high seas freedoms. The issue was resolved on the basis of
a proposal by Mexico in a small informal group known as the "Castañeda-Vindenes
Group".44 A new provision was added establishing that the exclusive economic zone had
a sui generis legal status, and therefore did not form part of the territorial sea nor of the high
seas, and could not be assimilated in either. In addition, the definition of the high seas in the
SNT was also clarified to provide the reassurance that the freedoms enjoyed by third states
in respect of non-resource-related activities in the exclusive economic zone were not
abridged. In case of any conflicts in respect of rights not specifically attributed to coastal
states or to other states, the issue should be resolved on the basis of equity, taking into
account the respective importance of the interests involved to the parties themselves, as well
as to the international community as a whole. Given the functional nature of the exclusive
economic zone, the general assumption would be that where economic interests were
concerned, equity would favour the coastal states. On issues involving non-resource uses,
the interests of third states or the international community would presumably be
predominant.

 This private group was composed of Australia, Brazil, Bulgaria, Canada, Egypt, India,
44

Kenya, Mexico, Nigeria, Norway, Peru, United Kingdom, United States, Singapore, USSR,
Tanzania and Venezuela. It was chaired jointly by Ambassadors Castaneda (Mexico) and
Vindenes (Norway).

The issue of the rights of neighbouring land-locked and geographically disadvantaged states
in the exclusive economic zone was the subject of protracted negotiations in Negotiating
Group 4 of the Conference.45 The agreement reached in that Group formed the basis for
Articles 69, 70, 71 and 72 of the Convention.

45
 Negotiating Group 4, chaired by S.N. Nandan (Fiji), was one of the seven negotiating
groups established by the Conference to resolve the outstanding hard-core issues at that
time.

The question of peaceful settlement of disputes arising from the exercise of sovereign rights
by the coastal state in the exclusive economic zone was the subject of discussions in
Negotiating Group 5 of the Conference.46 The rules that emerged from the agreement
reached in that Group were incorporated in Article 297(3) of the Convention.

 Chaired by C. Stavropoulos (Greece).

46

In any analysis of the development of the concept of the exclusive economic zone, it would
be apparent that much of its content is based on preexisting ideas. The notion of "sovereign
rights" over natural resources was already contained in the 1958 Convention on the
Continental Shelf. It was expanded to cover living and non-living resources of the exclusive
economic zone. The inspiration for the regime for installations and artificial islands and the
establishment of safety zones around them is to be found in that same Convention. The
"consent regime" for marine scientific research in the exclusive economic zone is also based
on the Continental Shelf Convention. As regards fisheries provisions, in particular those
relating to their conservation and management, many useful proposals were listed in the
"Main Trends" paper. Proposals from the United States, Japan, the USSR and Canada,
among others, contributed substantially to provisions in the Convention on this aspect, even
though they were made in the context of preferential fishing rights of coastal states. Those
proposals became the starting point for filling out the concept of the exclusive economic
zone, with obvious adjustments to take into account the emerging political and juridical
nature of rights and interests in the zone, as reflected eventually in the SNT. The specific
regimes for anadromous and catadromous species were based on Canadian and New
Zealand proposals, respectively. The article on highly migratory species was originally
proposed in the Group of 77 by Papua New Guinea on behalf of the small "Oceania Group"
consisting of southwestern Pacific states.

THE EXCLUSIVE ECONOMIC ZONE REGIME, 1982 CONVENTION

The regime gives to coastal states sovereign rights over the natural resources and control of
resources-related activities in the zone, while preserving for the international community the
freedoms of navigation, overflight and the laying of submarine cables and pipelines.

Coastal states have sovereign rights for the purpose of exploring and exploiting, conserving
and managing the living resources of the exclusive economic zone (Article 56). The
provisions relating to non-living resources are subsumed in the continental shelf provisions,
although jurisdiction over the part of the continental shelf which lies within the exclusive
economic zone is not dependent on geophysical considerations. With respect to living
resources, the coastal state has broad regulatory and management powers. The coastal
state, however, must ensure that the resource is not endangered by over-exploitation and it
must do this through proper conservation and management (Article 61). 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 (Article 61).

Coastal states also have the obligation to promote the objective of optimum utilization of the
living resources. The coastal state is obliged to assess the allowable catch and to determine
its own capacity to harvest the resources. If it does not have the capacity to harvest the
entire allowable catch, it must give other states access to the surplus (Article 62).

Land-locked and geographically disadvantaged states have the right to participate, on an

equitable basis, in the exploitation of an appropriate part of the surplus of the living
resources subject to arrangements with the coastal state involved (Articles 69 and 70).

There are special provisions for straddling stocks (Article 63), anadromous species (Article
66), catadromous species (Article 67), sedentary species (Article 68) and marine mammals
(Article 65). With respect to highly migratory species, the coastal state and other states
whose nationals fish in the region shall cooperate directly or through appropriate
international organizations with a view to ensuring conservation and promoting the objective
of optimum utilization of such species, both within and beyond the exclusive economic zone
(Article 64).

In exercising its sovereign rights, the coastal state is empowered to take a wide range of
enforcement measures such as boarding, inspection, arrest and judicial proceedings (Article
73).

Finally, a description of the regime would not be complete without mentioning the subject of
dispute settlement as it is detailed in Article 297(3). With regard to fisheries disputes
concerning the interpretation or application of Convention provisions, they are to be settled
by a binding form of dispute settlement. However, coastal states are not obliged to submit
disputes relating to the exercise of sovereign rights with respect to living resources in the
exclusive economic zone to any form of compulsory dispute settlement procedures. The
issues under this exception include the coastal state's discretionary powers for determining
allowable catch, its harvesting capacity, the allocation of surpluses to other states and the
terms and conditions established in its conservation and management laws and regulations.

However, a coastal state would be obliged to submit to conciliation certain specific disputes -
those arising from an allegation that:

(i) a coastal state has manifestly failed to comply with its obligations to ensure through
proper conservation and management measures that the maintenance of the living
resources in the exclusive economic zone is not seriously endangered;

(ii) a coastal state has arbitrarily refused to determine, at the request of another state, the
allowable catch and its capacity to harvest living resources with respect to stocks which that
other state is interested in fishing; or

(iii) a coastal state has arbitrarily refused to allocate to any state, under Articles 62, 69 and
70 and under the terms and conditions established by the coastal state consistent with the
Convention, the whole or part of the surplus it has declared to exist.

The exercise of the coastal state's discretionary power is protected by the fact that the
conciliation commission shall not substitute its discretion for that of the coastal state.

The merging of ideas from diverse origins is readily apparent in the Convention. The basic
premise upon which the Convention rests is that there is a balance of rights and obligations.
The history of the economic zone concept and the fisheries regime illustrate in particular this
basic premise.

SOME GENERAL OBSERVATIONS ON THE EXCLUSIVE ECONOMIC ZONE

It is not possible in this article to provide a full commentary on the texts of the provisions on
the exclusive economic zone in the Convention. However, the following general observations
on the regime might be made:

 1. The regime for the exclusive economic zone is sui generis. Under it the coastal states
and other states have specific competences. The legal regime of the exclusive economic
zone is thus different from those of the territorial sea and the high seas. It is a zone which
incorporates certain characteristics of both regimes but belongs to neither. The zone
represents a politico-legal compromise and its various elements constitute a complete unit
whose structural harmony and functional balance will be destroyed if it were to be
assimilated into any pre-existing concept.

 2. In the exclusive economic zone a coastal state has been given sovereign rights for the
purpose of exploring and exploiting, conserving and managing the natural resources. In
exercising its rights and performing its duties under the Convention, the coastal state is
obliged to have due regard to the rights and duties of other states and to act in a manner
compatible with the Convention (Article 56). The coastal state has been given considerable
discretion in the management of the zone; however, the Convention 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 exclusive economic zone cannot pursue a policy of inaction with
respect to its living resources.

 3. The Convention refers to specific matters which a coastal state should take into account
in the management of the zone. It contains provisions requiring a state to enter into
agreements with other states, either bilaterally, subregionally or regionally. These references
in some cases serve to highlight the interests of other states in the zone or to create
preferences in their favour and they were essential elements in the compromises which
made the concept of the exclusive economic zone generally acceptable. They now require to
be implemented in good faith by all concerned.

The regime of the exclusive economic zone is clearly a revolutionary legal concept which
evolved very quickly. In about a 30-year time span, an ocean regime has emerged from
many diverse ideas and interests and has found universal acceptance establishing the
unlikely proposition that the whole is greater than the sum of its parts.