3.1 Providing a truly comprehensive and exhaustive zonal approach
The central concept of UNCLOS, which is closely linked to the concept of states, sovereignty and jurisdiction, is, as mentioned above, connected to the question of how to “cut the cake” by defining both the maritime zones, and the connected rights and duties of different actors, and particularly states, within those zones. This concept is by no means a new invention of UNCLOS, its roots go far back to the history of the law of the sea(1) See Treves, “Historical Development of the Law of the Sea”, in Rothwell et.al, (eds.), The International Law of the Sea, 2nd edition, 2015, p. 3 ff. and has, to some extent, already been codified in the law of the sea conventions of 1958.(2) Convention on the Territorial Sea and Contiguous Zone (entry into force: 10 September 1964), Convention on the Continental Shelf (entry into force: 10 June 1964), Convention on the High Seas (entry into force: 30 September 1962) and Convention on Fishing and Conservation of Living Resources of the High Seas (entry into force: 20 March 1966). However, those conventions could not provide a truly comprehensive regulation of the issues at stake. One major gap in the system of regulation by those conventions is, for example, the fact that the Convention on the Territorial Sea and Contiguous Zone does not include a clear limit of the territorial sea. This has led to on-going extension of the territorial sea by some states and a multitude of approaches, ranging from some states keeping a 3 NM limit, to other states going beyond a 12 NM zone.(3) Noyes, “The territorial sea a contiguous zone”, in Rothwell et.al, (eds.), The Oxford Handbook of the Law of the Sea, 2015, p92 f.
On this point, UNCLOS’ approach is to create a clear and exhaustive system for maritime claims, on the one hand by clearly defining which maritime zone can be established, and on the other hand by providing absolute maximums for the width of those zones. This approach is further supported by specific regulation, such as specific rules on the drawing of baselines as a borderline between internal waters and the territorial sea, as well as a base for the width of the outer territorial sea.(4) See Arts. 3 ff., 7 ff. etc.
In this context, a new concept introduced and codified in UNCLOS was the exclusive economic zone. The attempt here was to end the ongoing discussions around rights to and privileges concerning living and non-living resources, by creating an exhaustive system, which takes different interests into account.(5) See Andreone, “The Exclusive Economic Zone”, in Rothwell et.al, (eds.), The Oxford Handbook of the Law of the Sea, 2015, p. 160 ff.
The zonal approach of UNCLOS is comprehensive and exhaustive, in the sense that only those zones defined in UNCLOS can be legally claimed by states under the defined circumstances. That does not, of course, mean that the issue of maritime claims and delineations cannot be at the root of conflicts between states, as clearly indicated by the conflict in the South China Sea.(6) See Feldtmann & Harhoff, Den internationale Havret, in Harhoff et.al., Folkeret, s. 486 ff. However, those conflicts are basically not rooted in uncertainties concerning the system provided by UNCLOS as such, but are rather an issue of interpretation and use (or over-extensive use) of the existing rules.