2.4 Coastal State jurisdiction in EEZ and navigational freedoms of foreign merchant ships
The EEZ is an area beyond and adjacent to the territorial waters that shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial waters is measured.(1)Ibid., Article 55, 57. The EEZ is distinct from both the notion of sovereignty prevailing in the territorial and internal waters and the principle of freedom that defines the high seas.(2) Gemma Andreone, “The Exclusive Economic Zone,” in The Oxford Handbook of the Law of the Sea (Oxford: Oxford University Press, 2015), pp. 162-166. Rather, the legal framework governing the EEZ is established by the allocation and equitable distribution of rights between the Coastal State and other states, as outlined in UNCLOS.(3)Ibid., pp. 165-166.
The key UNCLOS provisions regarding the sovereign rights, obligations, and jurisdiction of Coastal States in the EEZ are Articles 56 and 58.(4) UNCLOS, supra note 11, Article 56, 58. The first paragraph of Article 56 provides that in the EEZ, the Coastal States have sovereign rights that are primarily aimed at ensuring conditions for conducting economic activities, such as the exploration and exploitation of marine resources (limitation ratione materiae).(5)Ibid., Article 56. In this context, it is important to differentiate the notion of sovereign rights from territorial sovereignty, which implies complete autonomy and independence. Jurisdictional powers of Coastal States are more limited within the EEZ, as they do not enjoy sovereignty but only certain sovereign rights.
It should be noted that, pursuant to UNCLOS Art. 56(1)(b)(iii), Coastal States have jurisdiction over “protection and preservation of the marine environment”.(6)Ibid. Nevertheless, their prescriptive jurisdiction is limited, as Coastal States are only permitted to enact laws and regulations that comply with GAIRAS and are subject to IMO oversight.(7)Ibid., Article 211(5).Nordquist, eds., supra note 47, p. 814. This provision guarantees that national legislation will not exceed or contradict international standards.
In line with UNCLOS Article 58 within the EEZ, other States possess freedoms akin to those of the high seas.(8) UNCLOS, supra note 11, Article 58. Nevertheless, free navigation in the EEZ is not a right that a state may exercise without considering the interests of other states (due regard obligation). In essence, it can be inferred that when a state exercises its right to free navigation, it incurs a responsibility towards other states that are also using this right or other lawful freedoms of the seas.(9) Thuy Van Tran, Freedom of Navigation in the Exclusive Economic Zone: An EU Approach (Cambridge: Cambridge Scholars Publishing, 2022), pp. 2-3. Thus, freedom of navigation can be classified as not an absolute under UNCLOS. It is broader in scope than the right of innocent passage in the territorial waters but deemed more conditional than the freedom of navigation in the high seas.(10)Ibid. In contrast to the high seas, the freedom of navigation in the EEZ can be categorised as subject to the Coastal State jurisdiction.(11) Yoshifumi Tanaka, “Navigational Rights and Freedoms,” in The Oxford Handbook of the Law of the Sea (Oxford: Oxford University Press, 2015), p. 554.
In essence, it can be stated that when a merchant ship is lawfully traversing the EEZ and adhering to the laws established by the Coastal States in accordance with UNCLOS Article 56, such as those pertaining to the protection and preservation of the marine environment, it is expected that Coastal States should refrain from impeding or obstructing the exercise of freedom of navigation by requiring notification or seeking permission or consent from the Coastal State.(12) Pete Pedrozo, “Maintaining Freedom of Navigation and Overflight in the Exclusive Economic Zone and on the High Seas,” Indonesian Journal of International Law 17 (4) (2020): pp. 479-480, accessed October 19, 2023, https://doi.org/10.17304/ijil.vol17.4.796. It is argued that the imposition of stringent regulations on navigation within the EEZ for environmental purposes is in direct violation of international law, unless the exception specified in UNCLOS Article 211(6) is applied.(13) Spadi, supra note 61, pp. 296-297.
Moreover, Coastal State enforcement jurisdiction within the EEZ is limited. Coastal States are entitled to require information from ships only when “clear grounds”(14) UNCLOS, supra note 11, Article 220(3). indicate that international or national rules and standards for the prevention, reduction, and control of pollution from vessels have been violated.(15) Ringbom, supra note 50, pp. 222-224. Physical inspections are only permitted when “clear grounds” indicate that such violations resulted in “a substantial discharge” or threatened “significant pollution of the marine environment”(16) UNCLOS, supra note 11, Article 220(5)., and when the vessel did not provide the Coastal State requested information or the information given “manifestly” differs.(17) Ringbom, supra note 50, pp. 222-224. Institution of proceedings or detention of vessels is only permitted if ”clear objective evidence”(18) UNCLOS, supra note 11, Article 220(6). shows that such violations caused or threatened to cause “major damage to the coastline or related interests of the Coastal State”.(19) Ringbom, supra note 50, pp. 222-224.