5.1 The Continental Shelf and the EEZ: Parallelism
and Integration
In the new law of the sea, the origins of the EEZ dates back to the wide variety of
fisheries zones established by the Latin American states in the late 1940s and 1950s,
mostly as a response to the 1945 Truman Proclamations.
1 At the time, despite
international community’s resistance to the suggested notion of “exclusive fisheries
zone”,
2 the idea of a maritime zone where coastal states could explore and exploit
natural resources with exclusivity gained momentum.
3 The speed with which
the concept gathered support was portrayed by Judge Oda, to whom “throughout
the history of international law, scarcely any other major concept has ever stood at
the threshold of acceptance within such a short period”.
4 Perhaps due to that
rapidness, questions abounded as to whether the EEZ regime came to life at the
expenses of the continental shelf or the high seas.
The EEZ embodies a maritime space for which a tailor-cut regime had to be
designed, in order to conciliate opposing interests of coastal and flag states. The
creation of this zone occurred in a time when a simple and reducing dichotomic view
of the oceans (sovereignty/non-sovereignty) was questioned by coastal states worldwide. A new demand was on the negotiating table: to shift from a dichotomic to a
trichotomous structure of the law of the sea, i.e. to a scheme of sovereignty/semisovereignty/non-sovereignty over a plurality of zones.
5 The semi-sovereignty level
was inserted in the new law of the sea upon the creation and codification of the EEZ,
a hybrid zone where the coastal state does not exercise full sovereignty but only
1 One hypothesis for the provenance of the celebrated 200-nm limit was the adoption of this distance
in a map in a paper 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-nm limit. See Ben-Yami (2017) Available at: http://www.worldfishing.net/
news101/Comment/ben-yami/the-200-mile-limits-origin. Accessed 08 April 2020.
2 Maria Gavouneli mentions the “the proliferation of ‘fisheries zones’, ‘pollution-protection zones’
or ‘ecological-protection zones’”, a phenomenon that contributed to the cacophony surrounding the
EEZ. In those zones, coastal states have opted for “different combinations of jurisdictional powers”,
in different distances from the baselines. See Gavouneli (2007), p. 92.
3 It could also be claimed that the term EEZ could be per se misleading, as coastal states would not
enjoy “exclusive”, but rather “preferential” rights over the natural resources therein. An illustration
of that would be Art. 61 of the Convention and the idea of a “total allowable catch” within the zone.
This is, however, courtliness and would relate solely to the fisheries’ aspect of the Zone. To the
contrary, the expression “sovereign rights” over the EEZ suggests that the coastal state enjoys
exclusiveness, and not preferential rights over natural resources of the zone, including conservation
and protection of marine resources, an authority that the states exercises on an exclusive, not
preferential basis. For a similar view, see Beckman and Davenport (2012), p. 7.
4 ICJ Case Concerning the Continental Shelf (Tunisia/Libya), Judgement of 24 February 1982,
dissenting opinion of Judge Shigeru Oda, ICJ Rep. 1982, para. 120.
5 Kreca (2002), p. 1215.
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5 Jurisdictional Intersections Between the Continental Shelf and Other Maritime. . .
and Integration
In the new law of the sea, the origins of the EEZ dates back to the wide variety of
fisheries zones established by the Latin American states in the late 1940s and 1950s,
mostly as a response to the 1945 Truman Proclamations.
1 At the time, despite
international community’s resistance to the suggested notion of “exclusive fisheries
zone”,
2 the idea of a maritime zone where coastal states could explore and exploit
natural resources with exclusivity gained momentum.
3 The speed with which
the concept gathered support was portrayed by Judge Oda, to whom “throughout
the history of international law, scarcely any other major concept has ever stood at
the threshold of acceptance within such a short period”.
4 Perhaps due to that
rapidness, questions abounded as to whether the EEZ regime came to life at the
expenses of the continental shelf or the high seas.
The EEZ embodies a maritime space for which a tailor-cut regime had to be
designed, in order to conciliate opposing interests of coastal and flag states. The
creation of this zone occurred in a time when a simple and reducing dichotomic view
of the oceans (sovereignty/non-sovereignty) was questioned by coastal states worldwide. A new demand was on the negotiating table: to shift from a dichotomic to a
trichotomous structure of the law of the sea, i.e. to a scheme of sovereignty/semisovereignty/non-sovereignty over a plurality of zones.
5 The semi-sovereignty level
was inserted in the new law of the sea upon the creation and codification of the EEZ,
a hybrid zone where the coastal state does not exercise full sovereignty but only
1 One hypothesis for the provenance of the celebrated 200-nm limit was the adoption of this distance
in a map in a paper 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-nm limit. See Ben-Yami (2017) Available at: http://www.worldfishing.net/
news101/Comment/ben-yami/the-200-mile-limits-origin. Accessed 08 April 2020.
2 Maria Gavouneli mentions the “the proliferation of ‘fisheries zones’, ‘pollution-protection zones’
or ‘ecological-protection zones’”, a phenomenon that contributed to the cacophony surrounding the
EEZ. In those zones, coastal states have opted for “different combinations of jurisdictional powers”,
in different distances from the baselines. See Gavouneli (2007), p. 92.
3 It could also be claimed that the term EEZ could be per se misleading, as coastal states would not
enjoy “exclusive”, but rather “preferential” rights over the natural resources therein. An illustration
of that would be Art. 61 of the Convention and the idea of a “total allowable catch” within the zone.
This is, however, courtliness and would relate solely to the fisheries’ aspect of the Zone. To the
contrary, the expression “sovereign rights” over the EEZ suggests that the coastal state enjoys
exclusiveness, and not preferential rights over natural resources of the zone, including conservation
and protection of marine resources, an authority that the states exercises on an exclusive, not
preferential basis. For a similar view, see Beckman and Davenport (2012), p. 7.
4 ICJ Case Concerning the Continental Shelf (Tunisia/Libya), Judgement of 24 February 1982,
dissenting opinion of Judge Shigeru Oda, ICJ Rep. 1982, para. 120.
5 Kreca (2002), p. 1215.
110
5 Jurisdictional Intersections Between the Continental Shelf and Other Maritime. . .