Lifelines: Canada's East Coast Fisheries

Law Of The Sea – The Exclusive Economic Zone

B. Applebaum, BA LLM


The Third United Nations Conference on the Law of the Sea and the Development of UNCLOS

10. The pressures for extended coastal State jurisdiction for resource exploitation for both water column and undersea resources did not develop unopposed, or isolated from other ocean-related issues and concerns. The steady process of enclosure that followed the Truman Proclamations produced concerns among a variety of countries, not least the U.S. which had started this process going. A great many States had interests that conflicted with this development. States with fleets that were fishing off the coasts of other countries, some that had fished in these areas for centuries, some that were new participants, faced the prospect of losing access to the resources that sustained these fleets and the home economies that they served. There was internal confusion for some of these States. The U.S. and Russia were examples of States that wanted to keep their traditional access to distant fish stocks, but stood to benefit from extensions off their own coasts over very large fish stocks. The situation was simpler for other States, like Portugal and Spain, whose coastal resources were negligible compared with their catches in other areas, primarily in the North Atlantic and off West Africa. Apart from the fisheries issues, developing States became increasingly aware that developed States were creating the technology that would allow them to expand their undersea hydrocarbon and mineral exploitation increasingly further from their shores into areas, arguably not part of their continental shelves and, at some point, certainly deep seabed that, if left unappropriated by coastal States and by the wealthy corporations of developed States, would remain open to all States as "the common heritage of mankind".[8] It was clear that the longer the various undersea exploitation issues remained unresolved the more encroachments there would be by developed States establishing claims that would, in some sense, rob the developing States of potential wealth they believed should be shared with them.

11. The developed States had their own particular concerns. Even those that wanted to extend their own jurisdiction over the water column off their coasts, and exploit the subsea area to the farthest possible reaches they could claim on their continental shelves, and beyond, worried that in the absence of an internationally agreed regime of comprehensive rules a hodge-podge of extensions following no agreed pattern would destabilize what had been a very stable system for international use of the seas. They worried, in particular, that this destabilization would lead to erosions of the fundamentally important high seas rule of freedom of navigation, particularly through a number of international straits crucially important for commerce and the movement of naval vessels. Finally there was the increasing problem of oceanic pollution from giant oil tanker vessels, expelling oily water ballast at sea, or leaking, or foundering. Coastal interests wanted coastal States to have the right to protect the waters and living resources off their coasts from the dangers created by these vessels; economic and commercial interests were concerned to ensure unimpeded delivery of the fuel necessary for their economies.

12. By the 1960s there was a general comprehension that the interrelationship of the various issues was such that they could not be dealt with piecemeal, or in isolation from each other. They had to be dealt with all together in a comprehensive new constitution for the oceans. It was to develop this constitution that the United Nations convened the 3rd United Nations Conference on the Law of the Sea, which commenced in 1973.

13. The Conference took 10 years to produce the 1982 United Nations Convention on the Law of the Sea, commonly referred to as UNCLOS. However its effect regarding the EEZ was much more rapid. By the end of the Conference's first substantive session in 1974 a draft set of rules for the EEZ had been developed, for future incorporation into the overall Convention. International acceptance of this draft set of rules for the EEZ, and for the EEZ itself, was assumed to have taken place. This proved to be the catalyst for unilateral action by coastal States worldwide, extending their jurisdictions to 200 nautical miles and announcing that the waters encompassed would be governed by the draft rules which had emerged from the Conference. State practice, one of the normal sources of customary international law, had never before developed so quickly, and in that particular way. Legal experts referred to the phenomenon as something quite new, called "instant international law".

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