Eyeing huge economic potential in the coming years, not just for fisheries but also from artificial islands, wind farms, solar farms, wave-generated electricity and revenue from shipping movements, Malta has started a process that will lead to the declaration of an exclusive economic zone in the central Mediterranean.
This has the potential of extending Malta’s responsibilities by as much as 71,446 square kilometres beyond its territorial waters.
By doing this, will Malta be going far beyond the original intention and aims of the International Law of the Sea? This law was intended to protect the common heritage of mankind rather than to derive economic benefit from it.
Undoubtedly, any declaration we make will have to emerge from a cautious and well-studied exercise. We must have the capacity to monitor any areas that fall within the zone.
The United Nations Convention on the Law of the Sea, 1982, has been the main international agreement related to maritime issues for 40 years. It gives states jurisdictional rights and duties. However, specific rules and regulations apply to exclusive economic zones and they differ substantially from those pertaining to other areas.
Article 56 of the Law of the Sea establishes sovereign rights for the purpose of exploring, exploiting, conserving and managing natural resources related to economic concerns. But the rights and duties that relate to a state’s declared exclusive economic zone are somewhat of a grey area (excuse the pun) under international law. The legal regime is most ambiguous and its interpretation depends on other factors.
For instance, Article 60 gives the coastal state an exclusive right to construct artificial islands, structures and installations and to authorise and regulate this activity. It also gives the coastal state exclusive jurisdiction with regard to customs, fiscal matters, health, safety and immigration.
The same paragraph gives it the right to establish reasonable areas of safety to a maximum of 500 metres beyond the zone. However, it has not yet been established whether the coastal state also has jurisdiction over this 500-metre zone.
This became an issue when, in September 2013, Greenpeace activists went to the Arctic to protest against the oil industry. They were arrested by the Russian authorities even though there is no international legal regime that empowers the coastal state to do so.
In an exclusive economic zone, a coastal state enjoys sovereign rights of exploration, exploitation, conservation and management. The provisions of the convention concerning these zones reflect a compromise among signatory states with competing interests.
We must have the capacity to monitor any areas that fall within the zone- Mark Said
A balance is meant to be struck between the resource interest of the coastal state in its offshore waters and the interests of states that want to make sure any declaration of economic zone exclusivity does not encroach unduly on the traditional freedom of the high seas.
A declaration by Malta could easily tread on treacherous waters considering the many coastal states that border the Mediterranean Sea around the Maltese islands. There could be considerable problems of enforcement because of the physical and economic costs involved.
An exclusive economic zone is not defined only by distance. It more broadly refers to the activities performed in the zone and the sovereign rights of the coastal state.
Not all states have the capability of enforcing such laws and this would affect their sovereignty over the zone. One instance was the case of piracy in Somalia, where a naval task force operated in its exclusive economic zone of a few years ago.
The main problems I envisage in terms of Malta’s bid relate to three aspects: determination of the zone’s extent, the jurisdiction over it (rights and duties) and activities performed within it.
Determination is a national and unilateral activity but Malta will eventually have to determine the limits with other states (northern and southern ones).
These will have to be established through agreements and, where this is not achieved, by special courts or tribunals, which would resolve the dispute or, at least, manage the conflict.
The establishment of control and enforcement procedures in the exclusive economic zone is a determining factor in preventing unsafe practices, environmental pollution and illegal activities. These might include illegal fishing, piracy, terrorism, slavery, smuggling and the trafficking of drugs, among others.
Control procedures could involve boarding and inspection routines. Paragraph 3 of Article 110 of UNCLOS (Rights of Visit) restricts the control exercised by coastal states over activities. Only when there are reasonable grounds for suspecting some specific illegal activity do the coastal states have the right to visit.
An important consideration is that, within the zone, any conflicts that might arise could arise again in the future.
An exclusive economic zone is moderately exclusive in comparison with the exclusivity of a state’s territory. Certainly, having sovereign rights over specific issues is not the same as enjoying sovereignty.
That means the term “exclusive” is not measurable because there are only two possibilities: exclusive or not exclusive. Malta’s exclusive economic zone may, after all, not be that exclusive.
If the rights to be acquired by Malta under the law of the sea are to mean anything, then effective policing of the zone and proper management of its resources would be imperative.