The Exclusive Economic Zone: A Brief Outline
Readers from the fishing industry will be well aware that Article 57 of the 1982 UN Convention on the Law of the Sea provides that a coastal state may claim an Exclusive Economic Zone (EEZ) of up to 200 nautical miles, the main significance of which is that the coastal state is thereby given exclusive sovereign rights over fisheries in that area (but also jurisdiction in relation to artificial structures, marine scientific research and environmental preservation and protection).
But what exactly are these sovereign rights in relation to fisheries? Very briefly, the coastal state is given sole discretion in setting the allowable catch (Article 61(1)), but must ensure through proper conservation and management measures that the fisheries are not endangered by over-exploitation, taking into account the best scientific evidence available (Article 61(2)), while, at the same time, aiming towards their optimum utilisation (Article 62(1)).
However, the coastal state is not given a complete carte blanche. Article 63 of the Convention makes clear that that where the same stock or stocks of associated species occur within the exclusive economic zones of two or more coastal states, these states shall seek, either directly or through appropriate sub-regional or regional organisations, to agree upon the measures necessary to coordinate and ensure the conservation and development of such stocks. Consequently, whatever post-Brexit deal the UK and the EU initially reach, the two parties will have a continuing dialogue in relation to fisheries. Similar provisions regarding co-operation also apply in relation to highly migratory species.
Needless to say, nationals of other states must comply with the conservation measures and with the other terms and conditions the coastal state has set for its EEZ and Article 73 of the Convention provides that a coastal state may take such measures as may be necessary to ensure compliance with the laws and regulations adopted by it, including boarding, inspection, arrest and judicial proceedings. In cases of arrest or detention of foreign vessels, the coastal state must promptly notify the flag state of the action taken and of penalties subsequently imposed. However, coastal state penalties for violations of fisheries laws and regulations in the EEZ may not (in the absence of agreement to the contrary by the states concerned) include imprisonment.
Finally, a coastal state is in principle required to give access to other states to its fisheries if it has insufficient capacity to harvest the allowable catch it has set, with particular regard to landlocked, geographically disadvantaged and least developed states. In practice however this right of access is extremely unlikely to be enforceable, as coastal states’ decisions in determining the allowable catch, the extent of harvesting capacity and the allocation of surpluses are excluded from the compulsory dispute settlement procedures in Part XV of the Convention.