I thank my friend and former colleague, Dr Sun Zhen, for inviting me to contribute the foreword for her important book. Dr Sun is a member of a new generation of brilliant young Asian international lawyers. The future is bright for international law in Asia.
The book is important because it discusses one of the most important inventions of the Third United Nations Conference on the Law of the Sea (Third Conference). The concept of the Exclusive Economic Zone (EEZ) is new to international law. The objective of the EEZ is to put an end to the decades-old dispute over fishing rights between the Coastal States and other States. It will be remembered that such a dispute between Iceland and the United Kingdom ended in a shooting war between them.
The EEZ gives Coastal States sovereign rights to the resources in the EEZ. It does not give the Coastal States sovereign rights to the water column.
One of the most difficult issues at the Third Conference was the status of the EEZ. The issue was finally resolved by a small negotiating group, convened and chaired by the leader of the Mexican delegation, Ambassador Castaneda. It came to be known as the Castaneda Group. What did the group agreed upon?
The group agreed on the following:
1. The EEZ is a sui generis zone. It is neither the Territorial Sea nor the High Seas.
2. No State can subject the EEZ to its sovereignty.
3. The international community enjoys the freedoms of navigation, overflight and the laying of submarine cables and pipelines in the EEZs of Coastal States.
4. A second group of rights and freedoms of the international community in the EEZ is qualified and is subject to the compatibility test. Article 58(2) makes Articles 88–115, the basic articles of the High Seas regime, applicable to the EEZ, in so far as they are not incompatible with Part V of the Convention. Part V contains the EEZ. This means that a right of the High Seas – for example, to conduct military exercises – can be carried out in the EEZ if it is not incompatible with the resource rights of the Coastal States. The test is imprecise and has given rise to disagreements. Many Coastal States reject the right of other States to carry out such exercises in their EEZs. The maritime powers insist that the two rights are not incompatible.
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