Perspectives On The Residual Rights Of The Exclusive Economic Zone

One of the greatest achievements of the modern law of the sea represented by the United Nations Convention on the Law of the Sea is the creation of the regime of the Exclusive Economic Zone (called EEZ as follows), which has enabled the vast sea areas adjacent to the sea coasts of coastal States become the "household plot" for exploration and exploitation of marine environment and resources, hence realizing the rational allotment and distribution of marine resources among marine States and coastal States. However, since the effectiveness of the Convention, the regime of EEZ has become in the law of the sea the most difficult and complex issue of the widest scope that may lead to the most frequent international disputes. The reasons thereof are that such vast and rich sea area involves the core interests including the sovereignty, security and resource exploration and exploitation of numerous nations and that there are a number of residual rights remained for further discussions.Residual right is the right that the law has not stipulated or forbidden in writing. Since the international law of the sea is dynamic, and is the result of the tradeoff of negotiations, and the compromise and consultation, the United Nations Convention on the Law of the Sea leaves the space and margin when it adjusts and establishes the two different regimes for jurisdiction of the sea areas in terms of enlarging the jurisdiction of the costal States and narrowing the freedom of the high seas, that is, the issue of the so-called residual right becomes the focus of conflicts and disputes arising among States. The establishment of EEZ endows the costal States to enjoy the right of sovereignty for the natural resources and other jurisdiction in the area in question while the third State and other States, subject to relevant provisions, enjoy the freedoms of navigation and overflight and of the laying of submarine cables and pipelines. This specific area is the collection of interest distribution and overlap and residual right between costal States and other States. Law of the sea is a sort of legal order which acquires temporal balance during the course of changes of the law, which aim is to satisfy the common requirements of each State and on the other hand, to satisfy the specific requirements of each State. Therefore, in this newly established area, the mark for rights of sovereignty of costal States and exclusive jurisdiction and freedom of the high sea and rights of other States is not quite certain at the very beginning. Since the 21st Century, a series of conflicts and divergences have arisen in respect of the rights and obligations between costal States and other Sates, which urge the discussion of the residual right in the new area- EEZ.From the history point of the view, the production of residual right always accompanies that of EEZ. When Latin American and African States called for the establishment of EEZ, their intention was to solve the problems of fishing and distribution of living resources. The residual right of fishing and distribution of living resources were written in the Convention as long as the establishment of EEZ, through which the fishing rights of the coastal States are fatherly consolidated. However, this cannot exclude the rights of fishing the remaining quantities in this area for other States, especially for the land-locked and geographically disadvantaged States. The regime of EEZ reserves the traditional right of uses of the sea-navigation right, and other States enjoy the freedom of navigation in this area, subjecting to the provisions of the international laws. Nevertheless, each State has different interpretations on what is international lawful action to safeguard its own interests. The third conference of the law of the sea adopted the manner of consultation instead of vote and after spending ten years the internal balance in certain extend just had been reached. Numerous of rights are unable to be defined clearly and many problems are unable to be involved in a process full of debates and compromises among all parties. Along with the development of the mankind activities on uses of the sea, the residual right in this area incurred accordingly has become more and more obvious; in another word, the development of the residual right is accompanied with that of EEZ and the law of the sea. That how to define and distribute the residual right in further will become a significant problem faced by the international law of the sea.The regime of EEZ can be summarized into three organic compositions: (1) the distribution regime of the rights and interests of the sea within EEZ; (2) the rules for coastal and other States to exercise their rights; (3) the principle for distributing the residual right within EEZ.In accordance with the "distribution regime of right and interest", the rights of coastal and other States are co-existed within EEZ. The coastal States enjoy their sovereign rights over EEZ for the purpose of exploring, exploiting, conserving and managing the natural resources within the zone, and enjoy the jurisdictions over "the establishment and use of artificial islands, installations and structures", "marine scientific research", and "the protection and preservation of the marine environment on the continental shelf, etc.; other States, subject to the relevant provisions of the Convention, enjoy the freedoms of navigation and overflight and of the laying of submarine cables and pipelines and the other lawful uses of the sea related to the abovementioned freedoms within EEZ.In accordance with the "rules to exercise right", the coastal and other States shall have due regard to the rights and duties of other States while exercising those of their own. The coastal State shall comply with the regulations of the Convention in handling issues; non-coastal States shall comply with the laws and regulations adopted by the coastal State in accordance with the regulations and rules of the Convention and other international laws without conflicting with the regime of EEZ.In accordance with the "rules of residual right", in cases where a conflict arises between interests of coastal and other States when the rights or jurisdiction of EEZ have not been distributed to any of the States, the conflict should be resolved on the basis of equity and in the light of all the relevant circumstances, taking into account the respective importance of the interests involved to the parties as well as to the international community as a whole.EEZ is a State jurisdiction sea area which is unique as its own with the specific legal status stipulated by the Convention on the Law of the Sea rather than the high sea. Since its effectiveness, the regime of EEZ has become the customary international law observed by all States among the world. Within this area, rights of the coastal and other States are co-existed, each State shall have due regard to other State's rights while exercising those of its own, and other rights and interests which are not stipulated by written rules and implied will be redistributed.Being a result of mutual compromise and a "package deal", the regime of EEZ possesses deficiencies since its establishment. There are no such provisions upon the military use of the sea in the United Nations Convention on the Law of the Sea. Besides, more than twenty years of tremendous changes in international political, economic and military situations lead to many international disputes emerging in the process of the implementation of the regime. The main cause of the disputes is the military activities of navy and air force that the military ships and planes need to pass through EEZ. In recent years, most of marine and air crises happened in the sea area of EEZ is related to this regime.EEZ shall be used for the purpose of peace only. However, this will not exclude the coastal State, in accordance with article 78, from exercising the right to adopt corresponding measures upon the activities, which violate the laws and provisions applicable to EEZ. In the age of modern technology, the quondam main task of winning the command of sea for the navy shall be transferred to keep up with the changes of the new times. It is said that, in the peacetime, the navy's primary task is to play the role of police and provide service and other usage for the government.It is precisely due to the quality defect of the "freedom of navigation and overflight", jurisdiction defect of the "marine scientific research", defect of the "peaceful purpose" and "peaceful usage", defect of the mutual "due regard" mechanism, and of the "residual right" rule existing in EEZ regime so that it leaves legal margin of elastic interpretation and flexible usage in the routine naval activities for relevant States. Therefore, from the ocean State's point of view, the issue of the military use of EEZ in legal is the problem that whether foreign States enjoy the rights to conduct naval and air activities in EEZ and over its air space of the coastal State in peacetime; from the coastal State, it is the problem of whether the coastal State is entitled to restrict and even prohibit these military activities.Basically, military activities in EEZ and over its air space during peacetime can be divided into: navigation and overflight, naval and air military reconnaissance, military survey, and exercises conducted only for passing through EEZ. Almost all States hold consistent approvals on navigation and overflight conducted only for passing through EEZ. However, tremendous differences are existing between the coastal and large marine States on the military purposes of naval and air military reconnaissance, military survey and exercises, etc.. It was demonstrated by the struggle in the Third United Nations Conference on the Law of the Sea and the relationship between "navigation freedom" and "jurisdiction of the coastal States" became the focus of the argument.The regime of EEZ of the Convention on the Law of the Sea is the customary international law and its relevant provisions have same binding force on non-signatory States. EEZ possesses specific legal status, firstly, because that it does not belong to the status of the high sea. As the coastal and other States enjoy different rights and perform different duties in EEZ, neither traditional freedoms of high sea, nor traditional freedoms of high sea for military use is remained in EEZ. This interpretation shall be more in conformity with the inherent spirit of the Convention and the principles of other international laws.The coastal and other States have different rights and restrictions upon the military use in this area, particularly in its water and seabed. As "only for peace purpose" is the common requirement and restriction upon all activities of military use, the coastal State enjoys more rights of military use than that of other States in its EEZ; nevertheless other States will receive multiple restrictions on their military use of EEZ of the coastal State. Therefore, the military use of EEZ shall follow the principles of use for "peace purpose", "non-use of force", coastal State enjoying priority, and exercising the rights of self defense and hot pursuit within a necessary limitation.Obviously, navigation of "military detection" in EEZ violates the general rights of the coastal State such as sovereignty and security rights and interests, meantime, it violates the "jurisdiction of marine scientific research" enjoyed by the coastal State in this water area. Therefore, navigation for military detection is not in conformity with the requirements of international laws regarding to the freedom of navigation in EEZ. Since it does not meet the "peace purpose" of international laws and the requirements consent by the coastal State, navigation for military detection can not be regarded as the activity of marine scientific research consistent with the United Nations Convention on the Law of the Sea.It is stipulated in the United Nations on the Law of the Sea that the hot pursuit right is terminated automatically at the moment the ship pursued enters into the territorial sea of its own or of a third State. It is well worth studying that whether such force activity as one State attacks the pursued ship in another State's EEZ without notifying in advance, is in conformity with international laws; whether is to respect the sovereignty and dignity of the coastal State in this sea area; whether is in accordance with the regarding legal regulations of the coastal State. However, in all circumstances the force activity shall be avoided as possible as it can be and the safety of human being shall be assured in best efforts. Additionally, under the international laws, a State shall obtain the prior consent from the government of the coastal State for searching and salvaging wrecks in EEZ of the latter.From the inside of all sorts of causes of divergences of military uses, we can see that whether to recognize the security interests existed in EEZ of the coastal State is the reason that contributed the different interpretations of the "freedoms of navigation and overflight". Meanwhile, many conflicts in recent years have indicated that the "fragile balance" between the coastal and ocean States upon interests in marine security has been broken. A new "balance" is needed in urgent to maintain the peaceful, stable and good order of the sea. It can be inferred from the legal theory that the security interest of EEZ is originated from the inherent right of self-defense of the State and other right derived accordingly, and is the "naturally extended" security interest of the State. These interests are aimed to defense and resist any possible violation, interference, destruction and damage against its national sovereignty, territorial integrity, internal affairs, people's lives and property, and State social order. Therefore, appeared as the activities of naval and air force, law of the sea enforcement and marine management strength in EEZ, these interests combine the functions of the sea defense, law of the sea enforcement and marine management as well. The security right enjoyed by other States in EEZ of the other's is the freedom of passing through. Once exercised on the premise of respecting the national security interests, sovereignty right, and jurisdiction of the coastal State, will such freedom of passing through be safe and secured. Secured refers to not being hindered or interrupted improperly; and safe refers to not being violated by illegal practice and receiving timely rescue under natural disaster.The deep-seated contradiction on whether this sea area can enjoy peaceful, stable and good order lies on how the naval and air force of the coastal and other sates "co-exist" in EEZ. Only the national security interests without being harmed of the coastal State existing in its EEZ is clearly acknowledged, and its priority over the navigation security of other States in this sea area is clarified, can the "freedom of navigation and overflight" of other States is secured and safe. To acknowledge the national security interests of the coastal State in this sea area, and carry out further discussions to find out methods and paths to make these interests realized, requires States of military interest group, and States of marine military interest group and interest group of coastal States to adopt bilateral, regional and even wider consultations and diplomatic negotiations in respects with political, economic, military, legal and diplomatic levels among themselves. Only in this way can the guiding principles of security and military uses in EEZ be designed from the legal point of view and be in conformity with the spirit of equity, ration and justice of the law, and make the security interests balance in EEZ to be established.The application of the PSI in EEZ indicates that within this area, it is the coastal State instead of other States shall assume the primary responsibility of preventing proliferation at sea. From this perspective, the national security interests of the coastal State still take precedence over the navigation rights of other States.As air space always enjoys the same legal status with it's under ground, the space over possesses the same legal status as that of EEZ. The residual right of the space over EEZ belongs to the coastal State. The coastal State enjoys the security interests in the space over its EEZ, while the "freedom of overflight" of other States which may harm the security interests of the coastal State will be restricted. The coastal State can conduct legislation upon the activities that violate the security interests of EEZ. This is the sovereignty right of the coastal State in its EEZ, and the solution direction provided by the development of the international norms for these residual rights. Practices of other States provide legislation reference for China to safeguard its own security interests in EEZ.What debated on the Third Conference on the Law of the Sea between coastal and flag States is how the coastal State exercises its jurisdiction upon the marine pollution in EEZ. Tradeoff provisions were agreed on the conference at the end. From provisions of the Convention, the jurisdiction of protecting the marine environment in EEZ is distributed to the tripartite sides of flag, coastal and port State, however, the Convention imposed a number of restrictions on the jurisdiction of the coastal State related to the interests, and the tripartite sides have not reached a balance so far on jurisdiction. Meanwhile, many of the provisions are only regulations of principle with many vague areas still being remained. Therefore, the jurisdiction of marine pollution protection in EEZ is attributed to the residual rights of EEZ.From the history of the jurisdiction of marine pollution protection in EEZ and its developing trends, the jurisdiction of the coastal State keeps enlarged while those of the flag State keeps reduced in series of international agreements of marine pollution protection, which demonstrated the expanding trend of the jurisdiction of the coastal State. Convention on the Law of the Sea stipulated that the coastal State, for the purpose of preventing pollutions caused by various pollution sources, shall consider the rules and standards agreed internationally, and the practices and procedures recommended when develops its domestic legal regulations. Nevertheless, there are no specific contents of so-called "international rules and standards" and "competent international organization" to be fixed or explained clearly in the Convention of the Law of the Sea."International rules and standards" need to be validated by "competent international organization or general diplomatic conference" to become "international rules and standards accepted generally" or "applicable international rules and standards" so that to ensure the rules and standards will be international, uniform and stable. "Applicable international rules and standards" do not exclude the rules and standards stipulated in regional conventions joined by relating parties or bilateral treaties. It shall be acknowledged that accepted by relating parties is the premise of applicable. Besides, we can tell the "competent international organization" from each of the key working areas organized by the United Nations specific agencies or intergovernmental organizations and its achievement, and different pollution sources.On implementing the laws and regulations to prevent, reduce and control ships to pollute the marine environment, Convention on the Law of the Sea, in accordance with situations of the pollution sources, the place of acting, the consequence of environment damage, and the attitude of the polluter, stipulates a so-called "package" agreement, i.e. the coastal, port and flag State is entitled to exercise their own rights respectively to treat ships violated regulations, but the flag State takes preference on ships violated general regulations to a certain extent, which demonstrates the jurisdiction of the flag, coastal and port State stipulated by the Convention is unequal, the jurisdiction of the flag State actually overrides the jurisdiction of other States. Such stipulation fully reflects the interests of large marine States which will damage the interests of the coastal States to a large extent. Although the Convention on the Law of the Sea endows flag States with high level of jurisdiction, many flag States of the world have not really been in managing the ships that registered in their country or flying their flags effectively, especially some open-registry countries, i.e. the so-called countries of "convenient flag". In fact, one-third of the ships of the world are in the situation of lacking administration and control from the flag States, which brings great troubles to EEZ and the navigation safe at the high sea. It is quite often that the ships of "convenient flag" are out of jurisdiction when problems emerged.Jurisdiction of the coastal State, being stipulated by the Convention on the Law of the Sea, has been further developed both in scope and degree. On jurisdiction scope, it is extended from "territorial sea" to "territorial sea or EEZ"; on jurisdiction degree, the coastal State so far shall make no standards higher than those of the international convention on ship-induced oil pollution, ship design, ship construction, staff allocation and equipment on the ship in EEZ, and ships violated regulations can only be treated by the coastal State when it is docked at the port of the coastal State. However, in the cases where the standards set by the international convention are not sufficient to protect the marine environment in the accident-prone water area of the coastal State and other special interests, the coastal State is entitled to develop compulsory measures with higher standards in its "special area". Meanwhile, the jurisdiction of the port State has been recognized to some extent at the time received a lot of restrictions.Regarding to preventing the pollution by ship accidents, some provisions of general principle has been made in the United Nations Convention on the Law of the Sea in 1982, while no directive regulations are involved in other conventions. Therefore, the scope of jurisdiction over ship-induced pollution accidents of the coastal State needs to be further confirmed, especially to confirm whether the coastal State is entitled to obtain the report and information of the ship violated the rules before its pollution drained. Whether they are solved or not, these issues will be very important and beneficial for the coastal State to take emergency measures preventing damages on its national interests and serious threats by the pollution after a ship accident.Although only provisions of principle on controlling the pollution caused by ships to dump waste are written in the Convention on the Law of the Sea, yet which still confirms the jurisdiction of the coastal State over pollution protection in EEZ, so that the jurisdiction of the coastal State is enlarged and the coastal State is entitled to take measures.Regarding to the jurisdiction on marine pollution protection, on the one hand, some provisions of the Convention are vague and difficult to be executed; on the other hand, the Convention emphasizes too much of the role of the flag State to the extent that sufficient recognition can not be offered to the joint jurisdiction of the coastal and port State and practical effects are difficult to be reached. Therefore, although the United Nations Convention on the Law of the Sea in 1982 has demonstrated the development trends from sole jurisdiction of the flag State to comprehensive jurisdiction of flag, coastal and port State on the issue of jurisdiction over prevention of ship-induced pollution, yet the development of this issue has not ended so far, and numbers of the provisions existing in the international conventions need to be further improved, and the jurisdictions of the flag, coastal and port State has not reached a balance.Provisions on jurisdiction of marine pollution protection in the Convention are mainly demonstrated in two aspects of stipulating and executing the legal rules and regulations to protect against pollution. One of the important methods to settle the jurisdiction conflict is in the domestic legislation and legal practice of each State. In the event that a jurisdiction conflict emerged, the settlement shall follow the principle of equity, justification, in favor of promoting international exchange, and protecting the lawful rights and interests of the both parties. China shall also focus on adapting the fact of tripartite co-existence within the jurisdiction of marine pollution protection, and strengthen its jurisdiction of marine environment protection from the tripartite respects of coastal, flag and port State.How to interpret and distribute the residual right of EEZ will become the major problem faced by the regime of EEZ and the law of the sea. It should be pointed out that the residual rights in the law of the sea shall belong to all mankind, and every sovereign State and its people of the world, instead of being attributed to certain super power or large marine State. This is the meaning due contained within the legal theory.The biggest difference between the rights of EEZ and the inherent rights of continental shelf enjoyed by the coastal State attributed to such that the former is established through legal claim or declaration by the coastal State, therefore, how the coastal State claims its rights which are not explained in existing laws will be the main method to distribute the residual right.Faced with numerous issues on the residual right of EEZ, all States are adopting all kinds of military, diplomatic, legal measures, etc. seeking the maximum of their own interests. Established on the basis of coordination and balance, original intention of legislating the regime of EEZ is to enlarge the jurisdiction of the coastal State so that to safeguard its natural resources and other interests, maintaining the interests of third world States. However, other States ceaselessly obtain their own interests from the vague legislation interpretation of the regime of EEZ because this area has reduced the freedom of the high sea, which not only violates the original intention of the legislation of EEZ, but also provides no help with solving the issues of residual right.Endless conflicts and contradictions emerged in EEZ indicate that distribution of the residual right is pressing for the settlement. To reach a new balance between the duties and rights of EEZ is not only a problem needs to be developed in practice, but also a problem needs to be solved gradually by the international community to reform the existing regimes, the States of marine military interest group and the interest group of coastal States, and large marine States and coastal States to take bilateral, regional and even more broad consultations and diplomatic negotiations among themselves on the basis of equity and in the light of all the relevant circumstances, taking into account the respective importance of the interests involved to the parties as well as to the international community as a whole.Of course, law of the sea and the regime of EEZ is still in the process of development, the residual right of EEZ and contradictions and conflicts arisen accordingly will become more and more obvious along with the deepening and development of the mankind activities of using the sea. How to redistribute these rights which are not explained by the existing laws requires each State and the international community to keep on developing and improving the regime of EEZ and the law of the sea in practice, meanwhile, the duties and rights of each State in EEZ will reach a new balance through consultations and negotiations of a new round legislation.