Part II - Competing Uses of the Exclusive Economic Zone

As discussed in Part I, after nine years of intensive negotiations, the Third United Nations Conference on the Law of the Sea (Third Conference) concluded a comprehensive United Nations Convention on the Law of the Sea (UNCLOS) that – in so far as verbal formulae can do so – successfully encompassed a series of dedicated compromises into an integral whole package deal.¹ The legal status of the exclusive economic zone (EEZ) proved to be one of the most controversial issues at the Third Conference, and it has continued to be controversial in State practice.² There are various reasons contributing to the disagreements on the competing uses of the zone between different States, and the less-than-definitive language of Part V of UNCLOS is one of them. The provisions of Part V represent a comprehensive version of the EEZ concept and set out the essential juridical configuration of the legal regime, which must be read in line with pertinent provisions of other parts of UNCLOS as well as other relevant rules of international law. But treaty texts, however final and definitive they are intended to be, do not have the last word; that lies with the interpreters and appliers of the regime.

Part II examines in detail how this sui generis legal regime has been implemented in State practice, in particular whether, and to what degree, coastal State rights and jurisdiction have affected the exercise of the freedoms of navigation and overflight and of the laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to these freedoms, in the EEZ. The balance of this regime relies on the continual assessment of the importance of the interests at stake and diligent obedience to the due regard obligation. Subsequent State practice indicates that the balance has shifted slightly in favour of the coastal State’s interests, particularly in connection with its sovereign rights over living resources and jurisdiction for environmental protection. On the other hand, the overall balance has been maintained in that international freedoms of navigation and overflight and of the laying of submarine cables and pipelines in the EEZ have not been seriously, or in most contexts even materially, impaired.

4 The Impact of Coastal State’s Rights on the Navigational Freedoms

After the establishment of the exclusive economic zone (EEZ) regime in the United Nations Convention on the Law of the Sea (UNCLOS),¹ the struggle between the tendency of the coastal State to extend its rights and jurisdiction and the desire of all States to maintain high seas freedoms has continued. In the course of this process, navigational freedoms have been affected to varying degrees by broadened coastal State rights and jurisdiction. In particular, foreign vessels and aircraft are obliged to have due regard for coastal State rights and duties and must observe the laws and regulations established by the coastal State in conformity with UNCLOS and other applicable rules of international law.² There is considerable potential for conflict between the rights and duties of the coastal State and those of other States.³ Since most of the seaborne routes in widespread use for navigation and overflight are within the limit of the EEZ, the manner in which the navigational freedoms are exercised is of vital importance.⁴

This chapter examines how the exercise of a coastal State’s sovereign rights and specific jurisdiction may affect foreign navigation and overflight and other related internationally lawful uses of the sea in the EEZ, both prescriptive and enforcement jurisdiction, and explores the safeguard measures established by UNCLOS to protect these freedoms. The limitations of the navigational freedoms emplaced by the coastal State can only be justified if they are made in accordance with the general principles of the attribution and exercise of rights and jurisdiction in the EEZ. In other words, a coastal State’s claims must be made within the limits of its sovereign rights or specific jurisdiction and must be exercised in good faith and by giving due regard to other States’ navigational freedoms.

This chapter is divided into five main sections. Section 4.1 reviews the scope of the preserved navigational freedoms of all States in the EEZ, including other related internationally lawful uses of the sea, such as those associated with the operation of ships and aircraft. Their non-absolute character and the duty of having due regard to the coastal State’s rights and duties and obeying applicable domestic laws are highlighted. Section 4.2 examines how a coastal State’s sovereign rights over natural resources would affect navigational freedoms. The coastal State has been given broad authority to exercise its sovereign rights, including adopting navigational measures and regulating activities ancillary to fishing. Section 4.3 addresses the impacts caused by the coastal State’s jurisdiction to preserve and protect the marine environment. The coastal State’s jurisdiction is limited to implementing applicable international rules and standards that reflect the predominance of navigational interests over coastal interests. Section 4.4 focuses on the impact of coastal jurisdiction and rights with regard to artificial islands, installations and structures. Although the use of such infrastructure and the surrounding safety zones may restrict navigational freedoms, the coastal State is obliged to act with due diligence and not to unreasonably interfere with international navigation. Section 4.5 discusses the dispute settlement mechanisms that could be used to resolve potential disputes between the coastal State and other States. Of particular interest are the limitations and optional exceptions to the applicability of the compulsory procedures that were included to further ensure a balance of rights and freedoms in the EEZ.

4.1 The Scope of the Navigational Freedoms

Article 58 of UNCLOS guarantees the navigational freedom for all States in the EEZ.⁵ Although it was the intention of some maritime powers during the negotiation that ‘the high-seas freedoms exercised in the zone are qualitatively and quantitatively the same as the traditional high-seas freedoms recognised by international law’, they are nevertheless restricted by several provisions of UNCLOS and other rules of international law.⁶ Only the freedoms that are ‘essentially concerned with international communications’, in particular the freedom of navigation and overflight and other internationally lawful uses related to these freedoms, remain open to all States, but they are subject to important limitations to accommodate the economic interests of the coastal State.⁷

When discussing the scope of navigational freedoms, the first issue is to clarify that they are not limited to any particular category of ships and aircraft. All ships and aircraft registered with all States, including those of military nature and used for other public service, as well as those registered in landlocked countries, have been granted the freedom of navigation and overflight in the EEZ.⁸ This refers to the unrestricted transit of a ship or aircraft through the EEZ of a coastal State en route between two destinations.⁹ UNCLOS used ‘ship’ and ‘vessel’ interchangeably, and offered no definition of either term. According to conventions developed under the auspices of the International Maritime Organisation (IMO), ship ‘means a vessel of any type whatsoever operating in the aquatic environment and includes submersibles, floating craft, floating platforms, Floating Storage Units (FSUs) and Floating Production Storage and Offloading Units (FPSOs)’, but exempts or modifies the application of the floating platforms when they are on location engaged in seabed activities.¹⁰

The second issue is to determine the ‘other internationally lawful uses of the sea related to these freedoms’.¹¹ Article 58 gives an example, ‘such as those associated with the operation of ships, [and] aircraft … and compatible with the other provisions of this Convention’. This example remains vague as to whether such use should be essential to the operation of a ship or aircraft, such as a hydrographic survey that collects data to support navigation, or distantly support their operations, such as the exchange of ballast waters and bunkering, which are occasional activities but not essential. State practice and judicial decisions seem to support a broader interpretation. The exchange of ballast water in the EEZ is discouraged but generally tolerated, especially in areas beyond 50 nautical miles (NM) from the nearest land.¹² The International Tribunal for the Law of the Sea (ITLOS) in both the Norstar case and M/T San Padre Pio case stated that the argument that bunkering activities in the EEZ (not to fishing vessels as confirmed in the Virginia G case) came within the high seas freedom of navigation is plausible.¹³ Furthermore, according to the arbitral tribunal in Arctic Sunrise, protest at sea by ships is also included in the scope of internationally lawful uses of the sea, as it is ‘necessarily exercised in conjunction with freedom of navigation’.¹⁴ There are also ongoing debates and conflicting State practice on whether military manoeuvres and espionage fall within the scope of ‘other internationally lawful uses’.¹⁵

Article 58 guarantees the unhampered navigation by foreign ships and aircraft through the EEZ of the coastal States, while the regulation of navigation and overflight are developed under other international instruments, including the rules and standards adopted by competent international organisations and diplomatic conferences. IMO is the global standard-setting authority for the safety, security and environmental performance of international shipping, and many of its rules and regulations have been universally adopted and implemented.¹⁶ Rules for overflight are mainly contained in the Convention on International Civil Aviation (Chicago Convention) developed under the auspices of the International Civil Aviation Organization.¹⁷ Under the Chicago Convention, the rules of the air apply to the high seas and to the EEZ through cross-reference under UNCLOS Article 58(2).¹⁸

The freedoms of navigation and overflight in the EEZ, like all other high seas freedoms, are subject to a number of limitations. First, the exercise of freedoms of navigation and overflight in the EEZ must be for peaceful purposes.¹⁹ Second, States exercising such freedoms are required to have ‘due regard to the rights and duties of the coastal State and shall comply with the laws and regulations adopted by the coastal State’ in accordance with UNCLOS and other compatible rules of international law.²⁰ Moreover, it can be argued that the general obligation to have ‘due regard’ applies to the interests of other States in their exercise of the recognised freedoms in the EEZ.²¹ The essential element of the due regard obligation is to define the non-absolute character of the right it attached.²² The extent of the ‘regard’ required in each case will depend upon the nature of the rights held by the other State, their importance, the extent of the anticipated impairment, the nature and importance of the activities contemplated by the operations of the State, and the availability of alternative approaches.²³

UNCLOS has, nevertheless, laid down detailed provisions to protect the navigational freedoms as applicable in the EEZ. First, a flag State enjoys exclusive jurisdiction over ships flying its flag navigating in a foreign EEZ except as otherwise authorised.²⁴ Second, warships and ships used only in government non-commercial service have ‘complete immunity from the jurisdiction of any State other than the flag State’ and are specifically exempted from a coastal State’s jurisdiction over environmental protection.²⁵ Moreover, the coastal State is explicitly obliged to ‘have due regard to the rights and duties of other States’ and to ‘act in a manner compatible with provisions of [UNCLOS]’,²⁶ whereby it cannot exercise its rights and jurisdiction in an absolute manner and must refrain from unreasonably interfering with foreign navigation and overflight. Furthermore, it is expressly stated that any disputes concerning an allegation where a coastal State has acted in contravention of the provisions in regard to the navigational freedoms will be subjected to a compulsory dispute procedure.²⁷

The following sections examine how different measures taken by the coastal State in exercising its rights and jurisdiction might affect the exercise of the preserved navigational freedoms in the EEZ.

4.2 Sovereign Rights over Natural Resources and Other Economic Activities

The phrase ‘sovereign rights’, first used in the context of the continental shelf regime, suggests that the coastal State’s rights are exclusive in the sense that although the coastal State does not have sovereignty, it has ‘all rights necessary for and connected with the exploration and exploitation of the natural resources’, including ‘jurisdiction in connexion with the prevention and punishment of violations of the law’.²⁸ The notion of ‘sovereign rights’ must be seen as constituting an extract of the broader concept of sovereignty – the mode of exercise is no different from that exercised by the coastal State within its territorial sea on the development of the natural resources and other economic activities.²⁹

4.2.1 Living Resources³⁰

The EEZ can be regarded as the direct result of developments in the law of the sea concerning coastal State fisheries jurisdiction in adjacent sea areas.³¹ As of 2024, among the 151 listed coastal States, more than 110 States have claimed the full distance of a 200 NM EEZ, subject to delimitation with States with opposite or adjacent coasts, together with another 4 States that have only claimed fisheries zones of various breadths.³² These claimed EEZ regimes encompass approximately 90 per cent of the world’s marine fisheries, which remain a major source of food and a key provider of employment and economic benefits.³³

‘Living resources’ in the EEZ refers to non-sedentary species found in the water column superjacent to the seabed, including all fisheries, marine mammals, highly migratory species, shared and straddling stocks, anadromous and catadromous species and seabirds.³⁴ Sedentary species have been explicitly exempted from the EEZ regime under Article 68 but are subject to the coastal State’s sovereign rights and jurisdiction under the continental shelf regime.³⁵ The different legal basis has certain implications for the scope of rights and obligations possessed by the coastal State.³⁶ First, Article 68 was included for historical reasons, as sedentary species were protected under the continental shelf regime before the establishment of the EEZ and their protection extends to the extended continental shelf.³⁷ Second, the exemption was meant to ensure that the coastal State is not subject to the obligation of giving excess of the surplus to other States where it does not have the capacity to harvest the entire allowable catch.³⁸ Third, the coastal State has no express obligation to conserve and manage sedentary species of the continental shelf in the same way as non-sedentary living resources in the EEZ.³⁹ However, the coastal State may do so in the exercise of its sovereign rights over the continental shelf and to fulfil its obligations under other international law such as the 1992 Convention on Biological Diversity.⁴⁰

Coastal State sovereign rights relate not only to the management of these species and other natural resources but also to their conservation for economic utilisation.⁴¹ These rights, together with certain duties imposed on the coastal State, are further elaborated in Articles 61–73. The coastal State’s sovereign rights encompass two main aspects as listed in Articles 61 and 62 (respectively): conservation and utilisation, with the objective of the conservation measures being to reach the goal of optimum utilisation.⁴² In order to do this, the coastal State must take into account the best available scientific evidence and cooperate with competent international organisations as appropriate, whether sub-regional, regional or global.⁴³ Additionally, States have the sovereign right to exploit their natural resources pursuant to their environmental policies and in accordance with their duty to protect and preserve the marine environment.⁴⁴ This reflects a general principle of international law that States have a legal obligation to promote the conservation and sustainable use of natural resources within the limits of their jurisdiction, including in the EEZ.⁴⁵

It is also acknowledged that, in exercising its sovereign rights over the living resources, the coastal State undertakes a mutual obligation of having ‘due regard’ to the rights and duties of other States in the EEZ.⁴⁶ This general obligation is inserted to balance the rights and interests in the EEZ between the coastal State and other States. It requires that the coastal State must be aware of other States’ interests and give them sufficient consideration when planning or conducting any activities that may affect the exercise of the freedom of navigation and overflight and other related freedoms, and refrain from activities that unreasonably impede the exercise of these freedoms.⁴⁷ The effects imposed on navigational freedoms by coastal conservation and management measures are examined in more detail below.

4.2.1.1 Protection of Marine Species, Habitats and Ecosystem

Coastal States have, based on their sovereign rights, the authority to determine the extent and the limits of conservation and utilisation measures of the living resources in the EEZ.⁴⁸ However, there is a correlative obligation for each coastal State to ‘ensure through proper conservation and management measures that the maintenance of the living resources in the [EEZ] is not endangered by over-exploitation’.⁴⁹ These measures should be designed to ‘maintain or restore populations of harvested species at levels which can produce the maximum sustainable yield, as qualified by relevant environmental and economic factors, including the economic needs of coastal fishing communities’.⁵⁰ It is both a right and an obligation for the coastal State to sustainably manage the natural resources in the EEZ. As subsequent development in the environmental law field has demonstrated, the effective conservation of marine species must also take into account the protection of associated or dependent species, their associated habitats and interlocking ecosystems, and the impacts of climate change and ocean acidification.⁵¹

In circumstances where shipping and other collateral activities may cause considerable damage to spawning grounds or nurseries, the coastal State arguably has a wide margin of discretion to restrict navigation for the purpose of conservation, subject to the fulfilment of its due regard obligation.⁵² These conservation measures may affect foreign vessels navigating through or within the EEZ under two circumstances. First, the coastal State may prescribe navigational measures, primarily through IMO, to regulate the movement of all foreign vessels in order to protect certain marine species or their habitats. Second, the coastal State may prescribe specific regulations towards foreign fishing vessels to protect such exclusive use. In the case where foreign fishing vessels⁵³ are given access to fish the surplus of the allowable catch through agreements or other arrangement with the coastal State, they must comply with the conservation measures established in that State’s coastal laws and regulations.⁵⁴

Vessels may pose various threats to marine lives and habitats, inter alia, pollution including greenhouse gas emissions, aquatic nuisance species transferred through ballast water, and physical damages through grounding and collisions.⁵⁵ Measures that aim to reduce such impacts primarily relate to the use of ships’ routeing systems developed and monitored under the auspices of IMO.⁵⁶ If the coastal State has sufficient reason to believe that the density of traffic is hazardous to the safety of navigation and/or protection of the marine environment in or around a specific area, it may submit a proposal to IMO for approval to adopt ships’ routeing systems.⁵⁷ These systems may be made voluntary or mandatory for ‘all ships, certain categories of ships, or ships carrying certain cargoes’ in the designated sea areas.⁵⁸ The proposed ships’ routeing systems must ‘reasonably be expected to significantly prevent or reduce the risk of pollution or other damage to the marine environment of the area concerned’.⁵⁹ The precise measures will depend upon the particular circumstances it is intended to alleviate, but may include some or all of the following: traffic separation schemes, two-way routes, recommended tracks, areas to be avoided, roundabouts, precautionary areas and deep-water routes.⁶⁰ For instance, in a coral reef area where anchoring is hazardous or could result in unacceptable damage to the marine habitat, the coastal State may establish through IMO a clearly defined no-anchoring area where anchoring is prohibited by all ships or certain classes of ships. In addition, it is very common for a coastal States to establish closed areas during spawning seasons to preserve and improve the spawning of domestic species, and it may be worth considering using similar conservation measures for species found in the EEZ to protect marine habitats.⁶¹

Further, many coastal States are taking various measures to prevent and deter illegal, unreported and unregulated (IUU) fishing in their EEZs, with some regulating the navigation of foreign fishing vessels in their EEZs.⁶² IUU fishing undermines the objective of sustainable use of fisheries, which is considered one of the major threats to coastal State efforts to conserve and manage the living resources in the EEZ and is responsible for the depletion of many fish stocks.⁶³ It has also been identified as one of the main causes of the overfishing that has ‘constrained progress in achieving food security for dependent populations and supporting sustainable livelihoods’ and has indirectly threatened international peace and security.⁶⁴

Costa Rica, for example, requires foreign fishing vessels without fishing permits transiting its EEZ to ‘communicate entry and departure’ to local authorities with information on the characteristics of the vessel, proposed course, place of entry and exit, and time required for passage.⁶⁵ Similar legislation was adopted by Canada whereby ‘no foreign fishing vessel shall enter Canadian fisheries waters for any purpose unless authorized’.⁶⁶ In addition to setting specific regulations for foreign fishing vessels, Maldives extended restrictions to all types of foreign vessels by asserting that ‘no foreign vessels shall enter the [EEZ] of Maldives except with prior authorization from the Government of Maldives in accordance with the laws of Maldives’.⁶⁷ These unilateral domestic laws create obligations for foreign fishing vessels (all vessels, in the case of Maldives) transiting through the EEZ, which effectively places a condition on the freedom of navigation that seems to be contrary to the freedom of navigation preserved in Article 58(1) of UNCLOS.⁶⁸

Ship reporting systems, which are commonly used for monitoring the movement of foreign vessels, must be adopted and implemented through IMO.⁶⁹ The coastal State may propose establishing a ship reporting system in a specific area to address issues relating to ‘the safety and efficiency of navigation and/or to increase the protection of the marine environment’, including marine habitats.⁷⁰ Under a duly established ship reporting system, a foreign vessel may be required to provide its identity, position, course and other related information to the shore-based authority through the automatic identification system, long-range identification and tracking system or other applicable ship reporting systems.⁷¹ The information required should be restricted to that essential for the proper operation of the system.⁷² IMO has approved mandatory ship reporting systems in areas that partially cover an EEZ of a coastal State for navigation safety and environmental protection purposes.⁷³ The coastal State could arguably, through IMO, require foreign fishing vessels to provide identification information upon entering or leaving certain areas of its EEZ based on its sovereign rights over living resources, provided that it has given due regard to a foreign vessel’s right of free navigation.

There are also safeguards to preserve navigational freedoms when the coastal State attempts to adopt protective measures in the EEZ. For example, when delineating ships’ routeing systems, the coastal State must ensure that routes follow existing patterns of traffic flow as closely as possible and should allow optimum use of aids to navigation; when proposing a ship reporting system, the coastal State should limit the requested information to that which is essential to achieving the objectives of the system.⁷⁴ These navigation regulations, when duly adopted through IMO and implemented by the coastal State, could be used to support the protection of living resources and the marine environment in the EEZ.⁷⁵

It is worth noting that State practice and a number of judicial decisions have regarded the conservation and management of living resources as one of the major components of the comprehensive approach to preserving and protecting the marine environment.⁷⁶ ITLOS stated in the Southern Bluefin Tuna cases that ‘the conservation of the living resources of the sea is an element in the protection and preservation of the marine environment’.⁷⁷ This was confirmed in the Fisheries Advisory Opinion in which ITLOS further stated that

the flag State is under an obligation to ensure compliance by vessels flying its flag with the relevant conservation measures concerning living resources enacted by the coastal State for its [EEZ] because, as concluded by the Tribunal, they constitute an integral element in the protection and preservation of the marine environment.⁷⁸

This approach was reconfirmed by the arbitral tribunal in the South China Sea case, where it found China breached its environmental obligations under Article 192 of UNCLOS because of its failure to prevent its fishing vessels from taking turtles and giant clams.⁷⁹ And additionaly by ITLOS in the Climate Change Advisory Opinion, where it observed that ‘the conservation of living resources and marine life, which falls within the general obligation to protect and preserve the marine environment, requires measures that may vary over time depending on the activities involved and the threats to the marine environment’.⁸⁰ Accordingly, the protection of rare and endangered species, as well as vulnerable marine habitats and areas, became the primary basis for the designation of specially protected marine areas in the EEZ under the environmental protection realm, which will be discussed in Section 4.3.2.2.

4.2.1.2 Regulation of Activities Ancillary to Fishing

The categories of coastal regulations listed in Article 62(4) are illustrative rather than exhaustive, as signified by the term ‘inter alia’ in the introduction.⁸¹ The list establishes guidelines for the coastal State to adopt fisheries laws and regulations that are designated to avoid over-exploitation of the resources and to meet the coastal State’s ‘environmental, social and economic goals’.⁸² But it does not clearly define the scope of fishing activities that are subject to regulation by the coastal State. In the 1977 Portuguese law, ‘fishing means the search for, the catch, the harvesting or the utilisations of any living resources’ in the EEZ, as well as activities ‘preparatory to fishing’ or ‘adversely affecting to the exercise of fishing’.⁸³ This broad interpretation is supported by subsequent State practice and judicial decisions, which shows the tendency of the coastal State to regulate a wide array of activities connected with fishing activities.

In January 1985, Canadian authorities refused to grant a licence for fishing in the Gulf of St Lawrence to the French vessel La Bretagne, which was equipped with on-board fish-filleting equipment. French authorities challenged this decision on the basis of a bilateral agreement and submitted the dispute to arbitration.⁸⁴ The arbitral tribunal considered the phrase ‘fishery regulations’ in Canadian law as covering all the rules applicable to fishing activities, taking into consideration future developments, and determined that it refers not only to ‘those setting technical standards for the physical conditions in which the fishing is carried on but also those requiring the completion of certain formalities prior to the performance of these activities’.⁸⁵ Accordingly, coastal States may adopt and enforce laws to regulate all fishing activities to maintain order on fishing grounds as well as to protect and conserve the living resources, albeit subject to UNCLOS (as adopted) and general international law. First, although the list in Article 62(4) is not exhaustive, it does not authorise coastal States to regulate subjects of a different nature other than those described; for example, ‘fishing equipment’ should not be interpreted to include processing equipment that is beyond the ordinary meaning of this term.⁸⁶ Second, the exercise of coastal States’ rights subject to the rule of ‘reasonableness’ requires that the regulations must be proportional to the aim legally pursued and gives reasonable regard to the rights of other States.⁸⁷ Furthermore, such rights are also subject to the rule of ‘relativity’, whereby the prohibition of an activity could only be legislated and enforced if the coastal State can prove that the practice of this activity would inevitably lead to an infringement of the law.⁸⁸

ITLOS had its first opportunity to address the scope of Article 62(4) in the M/V Saiga case, where Guinea arrested a vessel for supplying oil to three fishing vessels in the Guinean EEZ as a violation of its customs law.⁸⁹ During the prompt release phase, ITLOS stated that

it has already been indicated that laws or regulations on bunkering of fishing vessels may arguably be classified as laws or regulations on activities within the scope of the exercise by the coastal State of its sovereign rights to explore, exploit, conserve and manage the living resources in the [EEZ].⁹⁰

But it did not come to a clear conclusion. At the merits phase, ITLOS avoided making any findings on this question by examining a broader question of the application of customs laws in the Guinean EEZ.⁹¹ When denying Guinea’s argument to apply customs laws in the EEZ, ITLOS seems to have applied the same rule of ‘reasonableness’ and ‘relativity’: first, it pointed out that recourse to the principle of ‘public interest’ to apply customs law in the EEZ would entitle a coastal State to prohibit any activities that it considers as affecting its economic interests and would unreasonably curtail the rights of other States; second, there was no evidence showing that Guinea’s ‘essential interests were in grave and imminent peril’ or that the application of the customs laws was the only means to protect those interests.⁹²

In 2011, ITLOS received another case regarding a coastal State’s ability to regulate the passage of foreign vessels through its EEZ based on its assertion of natural resource protection measures. The Panamanian-flagged fuel oil tanker M/V Virginia G was arrested and detained by the maritime authorities of Guinea-Bissau for supplying fuel to four fishing vessels that had initially been authorised to carry out refueling services in Guinea-Bissau’s EEZ through a third local party.⁹³ ITLOS interpreted Article 62(4) as ‘for all activities that may be regulated by a coastal State there must be a direct connection to fishing’, and it observed that ‘such connection to fishing exists for the bunkering of foreign vessels fishing in the [EEZ]’.⁹⁴ It went on to declare that

the regulation by a coastal State of bunkering of foreign vessels fishing in its [EEZ] is among those measures which the coastal State may take in its [EEZ] to conserve and manage its living resources under article 56 of the Convention read together with article 62, paragraph 4, of the Convention. This view is also confirmed by State practice which has developed after the adoption of the Convention.⁹⁵

As mentioned earlier, in the subsequent Norstar case, ITLOS held that bunkering on the high seas came within the high seas freedom of navigation, which it noted also applies in the EEZ under Article 58(1) of UNCLOS.⁹⁶ This suggested that bunkering of ships other than fishing vessels in the EEZ was not subject to coastal State regulation. ITLOS confirmed this finding shortly afterwards in the San Padre Pio case at the provisional measures phase when it observed that Switzerland’s ‘claims that bunkering activities carried out by the M/T San Padre Pio in the EEZ of Nigeria are part of the freedom of navigation and that it has exclusive jurisdiction as flag State with respect to such bunkering activities’ appeared to be ‘plausible’.⁹⁷ ITLOS gave no reasons to support this view other than noting that it took into account the legal arguments of the parties and the evidence available to it. By agreement of the two parties in December 2021, the proceedings of the merits of the San Padre Pio case was discontinued and ITLOS did not have the chance to confirm its provisional view on the merits.⁹⁸

In La Bretagne, the arbitral tribunal did not accept Canada’s claim that it could regulate fish-processing equipment because the prohibition of using on-board filleting equipment was not explicitly included in its national law, and it was not a ‘long-standing policy’, but not because Canada did not have the right to prescribe such regulations.⁹⁹ In M/V Saiga, ITLOS rejected the application of customs law in the EEZ but suggested reclassifying the bunkering of fishing vessels as an activity ancillary to fishing.¹⁰⁰ Later in M/V Virginia G, ITLOS stated expressly that the coastal State has the right to regulate bunkering of foreign vessels fishing in its EEZ as an activity ancillary to fishing.¹⁰¹

There is a tendency for a coastal State to claim jurisdiction over a broad range of activities that may affect its sovereign rights over the living resources in the EEZ. The Canadian Coastal Fisheries Protection Act defines a fishing vessel in a broad scope. It includes the vessel that is used or equipped for fishing; processing or transporting fish; taking, processing or transporting marine plants; provisioning, servicing, repairing or maintaining any vessels of a foreign fishing fleet while at sea; and transhipping fish or marine plants.¹⁰² Whether or not the activity concerned is sufficiently connected to the sovereign rights of the coastal State ought to be decided on a case-by-case basis, taking into account the circumstances under which the activity is conducted and depending on the type of legislation applied by the coastal State.¹⁰³ But such laws need to be compatible with UNCLOS and must not unreasonably impede other States’ freedoms in the EEZ. Compliance with coastal States’ laws and regulations would inevitably increase the burden of foreign vessels traversing these waters; more importantly, violation of these laws could lead to enforcement measures being taken by coastal States.

4.2.2 Non-Living Resources

The coastal State’s ‘sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources’ in the EEZ also cover the non-living resources of the seabed and subsoil as well as the superjacent waters.¹⁰⁴ The indication of non-living resources of ‘the waters superjacent to the seabed’ refers to the various minerals which can be extracted from sea waters.¹⁰⁵ Generally, the reference to ‘conserving and managing’ applies primarily, if not exclusively, to the living resources, and the phrase ‘exploring and exploiting’ is intended to apply to non-living resources.¹⁰⁶

In respect of the non-living resources found on the seabed and of its subsoil, the EEZ overlaps in its entirety with the continental shelf regime within the 200 NM limit from the baseline.¹⁰⁷ Coastal States thus enjoy essentially unrestricted rights in the sense that no one has the right to share these resources even if the coastal State does not undertake such exploration and exploitation.¹⁰⁸ Coastal States also have exclusive right to authorise, use and regulate any means to conduct the exploration and exploitation, including drilling for all purposes and tunnelling.¹⁰⁹ The primary facilities from which exploration and exploitation take place are artificial islands, offshore installations and structures, all of which the coastal State has exclusive right to construct and to authorise and regulate.¹¹⁰

All States, in exercising their freedoms and performing their duties, must have due regard to the rights and duties of the coastal State and must comply with duly adopted domestic laws and regulations.¹¹¹ It would be impossible for coastal States to undertake economic exploration and exploitation of the non-living resources unless other States admit some slight encroachment on high seas freedoms.¹¹² In exercising its sovereign rights over non-living resources, the coastal State undertakes the same obligation to have due regard to other States’ rights and duties and shall not unduly affect their implementation. The use of the infrastructure to support the exploration and exploitation will be the primary concern that may interfere with foreign navigation and overflight, which will be discussed in Section 4.4.

4.2.3 Other Activities for Economic Uses

According to Article 56(1)(a), the coastal State’s sovereign rights also extend to ‘other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds’. The examples are not exhaustive, as indicated by the phrase ‘such as’, and are intended to cover all of the economic activities that may emerge, including the production of solar energy or thermal energy from the ocean, the utilisation of minerals dissolved in marine waters, offshore aquaculture activities, ocean fertilization and other marine geoengineering activities, the exploitation of icebergs as freshwater reservoirs and the desalination of sea water.¹¹³ This provision permits the coastal State to take advantage of technological developments to further its economic interests through any new means to utilise or exploit the natural resources of the EEZ.¹¹⁴ It also, arguably, gives the coastal State jurisdiction over activities affiliated with such emerging uses. The construction and utilisation of the supporting infrastructure to these economic exploitation and exploration activities must be read in conjunction with the coastal State’s jurisdiction over artificial islands, installations and structures that will be discussed in Section 4.4.

Most coastal States have asserted such rights by incorporating Article 56(1) verbatim without specifying these activities.¹¹⁵ It is not entirely clear from such national legislation and subsequent State practice what activities may be included in ‘other activities for the economic exploitation and exploration of the zone’. However, reserving such activities to the coastal State’s rights ultimately prevented them from being classified as unattributed rights, and as such facilitated the determination and attribution of other residual rights of the EEZ under Article 59.¹¹⁶

The exercise of the sovereign rights over these potential economic activities would be subject to the same rules as other economic uses of the EEZ. On the one hand, the coastal State has both legislative and enforcement jurisdiction over these economic activities. On the other hand, while carrying out these economic activities, coastal States are obliged to have due regard to the freedoms of other States and must refrain from activities that cause unreasonable interference with these freedoms.

4.2.4 Enforcement Jurisdiction

Coastal States’ enforcement powers¹¹⁷ came a long way during the negotiation of UNCLOS, as many major long-distance fishing States preferred exclusive flag State enforcement jurisdiction or jurisdiction through regional or international organisations with regard to violations in the EEZ.¹¹⁸ The International Law Commission (ILC) recognised, when it first introduced the term ‘sovereign rights’ into the context of the continental shelf in the 1956 Draft Articles, that enforcement powers must be included to guarantee the exercise of such rights.¹¹⁹ This authorisation is explicitly included in Article 73 of UNCLOS where a foreign vessel is found fishing without a licence, or acting in a way contrary to its licence, or infringing any other applicable laws and regulations in the EEZ, the coastal State may board, inspect, arrest and initiate juridical proceedings as appropriate against the vessel to ensure compliance.¹²⁰ The precondition of the enforcement jurisdiction is that the coastal State has established relevant laws and regulations on fishing that are compatible with UNCLOS.¹²¹ Although coastal States are given broad enforcement jurisdiction as ‘in the exercise of its sovereign rights’ over the living resources, they must act in ‘good faith’ and have ‘due regard to the rights and duties of other States’.¹²²

It is noteworthy that the coastal State does not have explicit enforcement jurisdiction for exploration and exploitation of the non-living resources or other economic activities, in contrast to the clear authorisation for living resources provided in Article 73.¹²³ Nevertheless, the coastal State should have the competence to prevent and punish such violations of foreign vessels based on the extensive scope of its sovereign rights.¹²⁴ This competence is further recognised in Article 111 of UNCLOS where the right of hot pursuit applies to violations of the EEZ or continental shelf laws and regulations.¹²⁵ The coastal State would have the right to take ‘appropriate’ measures to prevent interference with its sovereign rights to non-living resources in the EEZ or on the continental shelf, provided that such measures ‘fulfil the tests of reasonableness, necessity and proportionality’.¹²⁶ There are coastal States that clearly claim enforcement jurisdiction over violations with regard to the exploration and exploitation of non-living resources in the EEZ or on the continental shelf. Canada, for example, applies federal laws ‘on or under any marine installation or structure … attached or anchored to the continental shelf of Canada in connection with the exploration of that shelf or exploitation of its mineral or other non-living resources’.¹²⁷ A Canadian court would have jurisdiction ‘in respect of any such matter involving a federal law’ that arises in the EEZ, and the court may ‘make any order or exercise any power it considers necessary’ in respect of such matter.¹²⁸ The enforcement officer is authorised to exercise the powers to stop, inspect, search and seize any suspected conveyance, on reasonable grounds, to ensure compliance with applicable Canadian laws.¹²⁹

It is significant that the right of hot pursuit applies to violations in the EEZ.¹³⁰ If the coastal State has ‘good reason to believe that the ship has violated the laws and regulations’ applicable in the EEZ, it may approach the ship and verify its flag and other basic information.¹³¹ Hot pursuit may only be commenced when the foreign ship is in the EEZ and refuses to stop voluntarily after being given a visual or auditory signal to do so.¹³² It is not necessary that the order to stop is given when the foreign ship is undertaking the activities that violated the applicable law. As confirmed in the M/V Saiga, the fact that the pursuit commenced after the alleged illegal activity took place was not challenged by either the flag State or ITLOS.¹³³ Hot pursuit must be continuous and uninterrupted in order for it to be continued outside the EEZ, and such right ceases when the foreign ship pursued ‘enters the territorial sea of its own State or of a third State’.¹³⁴ These conditions for the exercise of the right of hot pursuit are ‘cumulative; each of them has to be satisfied for the pursuit to be legitimate under the Convention’.¹³⁵

The term ‘boarding’ implies that coastal authorities may board the vessel and may use force if it is necessary and not in violation of UNCLOS and the Charter of the United Nations.¹³⁶ ‘Inspection’ is normally limited to the examination of various certificates, records or other documents that the vessel is required to carry; further inspection may be undertaken if the circumstances so warrant.¹³⁷ The word ‘arrest’ is used in relation to both the vessel and the crew, signifying the initiation of detention with the purpose of invoking judicial proceedings.¹³⁸ These necessary enforcement procedures must be applied on reasonable grounds and be proportional to the circumstances to ensure that the legal rights of the foreign vessel and the fishers are not unduly interfered with.¹³⁹

The coastal State must apply lawful enforcement measures to board and arrest the foreign vessel, particularly in cases where the use of force was involved. First, these ‘enforcement activities can be exercised only by duly authorized identifiable officials of a coastal State and … their vessels must be clearly marked as being on government service’.¹⁴⁰ Second, enforcement activities should not ‘endanger the safety of navigation or otherwise create any hazard to a vessel, or bring a vessel to an unsafe port or anchorage, or expose the marine environment to an unreasonable risk’.¹⁴¹ Third, although the use of force is not prohibited, it ‘must be avoided as far as possible and, where force is unavoidable, it must not go beyond what is reasonable and necessary under the circumstances. Considerations of humanity must apply in the law of the sea, as they do in other areas of international law’.¹⁴²

The coastal State’s enforcement measures will predictably affect the activities of foreign vessels in the EEZ. In order to minimise the potential impacts and protect the flag State’s jurisdiction, UNCLOS has laid down further safeguards for the exercise of coastal State enforcement jurisdiction. Coastal States are obliged to promptly notify the flag State, through appropriate channels, of the arrest or detention of its vessels, of the actions taken and any subsequently imposed penalties.¹⁴³ It is worth noting that the coastal State is not required to suspend its proceedings to impose penalties if the flag State takes actions, and its right to institute proceedings is not subject to a prosecution period as in the case of vessel-source pollution in the EEZ, which is discussed in Section 4.3.3.

Moreover, a coastal State must promptly release the arrested fishing vessels and their crews upon the posting of reasonable bond or other security.¹⁴⁴ This obligation includes ‘elementary considerations of humanity and due process of law’ as well as ‘a concern for fairness’.¹⁴⁵ The coastal State should, based on its domestic law, determine the reasonable bond or security that is of a financial nature in light of the assessment of relevant factors.¹⁴⁶ In the case where the flag State challenges the release of the detained vessel and crews by the coastal State, it may bring the dispute under a special compulsory procedure known as prompt release as discussed in Section 4.5.¹⁴⁷ The question of release will be dealt with by a court or tribunal that has jurisdiction ‘without prejudice to the merits of any case before the appropriate domestic forum against the vessel, its owner or its crew’.¹⁴⁸

Furthermore, where the violations are established, the coastal State may impose appropriate penalties as applicable in its domestic law based on its sovereign rights in the EEZ.¹⁴⁹ These sanctions are expected to be ‘adequate in severity to be effective in securing compliance and to discourage violations wherever they occur and shall deprive offenders of the benefits accruing from their illegal activities’.¹⁵⁰ ITLOS has confirmed that, ‘in the light of the practice of coastal States on the sanctioning of violations of fishing laws and regulations’, penalties imposed under Article 73(1) may include the confiscation of fishing vessels.¹⁵¹ However, the imposed penalties ‘may not include imprisonment, in the absence of agreements to the contrary by the States concerned, or any other forms of corporal punishment’.¹⁵² Nevertheless, there are around twenty States that apply imprisonment penalties for violations of their EEZ laws.¹⁵³ For example, under Indian law, offences of the EEZ regulations may be punished with imprisonment of up to three years with or without fines.¹⁵⁴ Similar provisions can be found in the EEZ laws of Bangladesh,¹⁵⁵ Barbados,¹⁵⁶ the Philippines¹⁵⁷ and Portugal.¹⁵⁸ These domestic laws have clearly exceeded the enforcement rights permitted under UNCLOS.¹⁵⁹

It is a considerable challenge for many coastal States to maintain effective surveillance and enforcement of vast EEZs, especially for developing States and small islands States.¹⁶⁰ Hence, many States have engaged in increasing co-operation through regional or international fishery management organisations or bodies to share information, conduct joint surveillance or undertake reciprocal enforcement activities.¹⁶¹ In the South Pacific region, for example, seventeen States established the Pacific Islands Forum Fisheries Agency (FFA) in 1979 to provide monitoring, control and surveillance activities, policy and services for members to strengthen national capacity, and regional solidarity to achieve sustainable use of fisheries within their EEZs.¹⁶² The FFA developed a Regional Monitoring, Control and Surveillance Strategy since 2010 and established a Regional Fisheries Surveillance Centre to coordinate the regional efforts to prevent, deter and eliminate IUU fishing in the Pacific with particular emphasis on optimised use of existing and innovative surveillance and enforcement assets from the member States.¹⁶³

The EEZ regime gives coastal States sovereign rights and extensive competence over natural resources. Such powers were deemed necessary to protect the legitimate interests granted to the coastal State, notwithstanding corresponding curtailment of the navigational freedoms of other States. It is inevitable that the freedoms of navigation and overflight will be affected to a certain degree, especially by IMO approved navigational measures and those directly connected with fishing activities. Nevertheless, the coastal State’s sovereign rights in the EEZ are confined to the functional ‘purpose of exploring and exploiting, conserving and managing the natural resources’, which is different from the rigorous term ‘sovereignty’.¹⁶⁴ When exercising its rights and performing its duties, the coastal State must ‘fulfil in good faith’ the mutual obligation of ‘due regard’, and act ‘in a manner which would not constitute an abuse of right’.¹⁶⁵ The exercise of the coastal State’s sovereign rights must be closely related to the purposes for which the EEZ was established and must not cause unreasonable obstruction of other States’ navigational freedoms.

4.3 Jurisdiction to Protect and Preserve the Marine Environment

4.3.1 General Obligation of Environmental Protection

In the wake of increasing concern about the environment, a general obligation of all States, whether coastal or landlocked, to protect and preserve the marine environment has been incorporated in Article 192 of UNCLOS. It is primarily an obligation to diligently prevent and control threats for the irreversible damage that may be caused to the marine environment, echoing the general environmental law principle, namely the precautionary approach.¹⁶⁶ The consensus reached at the Third Conference, the degree of acceptance of UNCLOS and subsequent State practice support the conclusion that the provisions on the protection and preservation of the marine environment represent an agreed codification of existing principles which are now part of customary international law and apply to both Party and non-Party States.¹⁶⁷ UNCLOS remains the only global treaty to address all matters relating to the protection and preservation of the marine environment, which is implemented and complemented by other relevant environmental treaties.¹⁶⁸

The two main elements of the law relating to the protection of the marine environment are the conservation of marine biodiversity and the control of marine pollution, with the former being addressed mainly through fisheries management and conservation and the latter dominating the major provisions in Part XII of UNCLOS.¹⁶⁹ In the EEZ, this general environmental obligation needs to be read in conjunction with the coastal State’s sovereign rights over the living resources and its jurisdiction as provided for in the relevant provisions of UNCLOS. As discussed earlier, conservation of the living resources in the EEZ has been given specific content by Article 61, which ties it to measures coastal States take to establish allowable catches, and conservation should not include a general competence for pollution control in the EEZ.¹⁷⁰

Pollution is defined under UNCLOS as ‘the introduction by man, directly or indirectly, of substances or energy into the marine environment’ that may result in deleterious effects to marine resources or activities.¹⁷¹ This definition is extensive enough to cover any human activity that satisfies these criteria, including shipping.¹⁷² Pollution from ships takes the form of both catastrophic events and chronic pollution from regular operational discharges and can include oil and oily mixtures, noxious liquid substances, sewage, garbage, noxious solid substances, anti-fouling systems, harmful aquatic organisms and pathogens, underwater noise, air pollution and greenhouse gas emissions.¹⁷³ These substances and energy may cause serious or irreversible degradation of the marine environment. It has been recognised that shipping represents a significant contribution to the cumulative pressures that humans are imposing on the marine environment, which affects the harvest from the sea and the maintenance of biodiversity.¹⁷⁴

Both the flag State and the nationality State have the primary responsibility to ensure that the ships flying their flags or under their jurisdiction comply with environmental regulations and standards.¹⁷⁵ Within the EEZ, the coastal State may claim concurrent jurisdiction over a foreign vessel or activity as authorised by UNCLOS and other international law.

4.3.2 Prescriptive Jurisdiction

According to Article 56, the coastal State’s environmental jurisdiction is ‘as provided for in the relevant provisions of [UNCLOS]’ contained in Part XII.¹⁷⁶ Coastal States shall take ‘all measures consistent with [UNCLOS] that are necessary’, using ‘the best practicable means at their disposal and in accordance with their capabilities’ to prevent, reduce and control pollution of the marine environment in the EEZ.¹⁷⁷ While taking these environmental regulation measures, the coastal State ‘shall refrain from unjustifiable interference with activities carried out by other States in the exercise of their rights and in pursuance of their duties in conformity with [UNCLOS]’.¹⁷⁸ These requirements are intended to balance environmental protection needs and navigational interests in the EEZ.¹⁷⁹

4.3.2.1 Regulation of Ships and Shipping

Under UNCLOS, jurisdiction over the prevention, reduction and control of vessel-source pollution is divided between the flag State, the coastal State and the port State.¹⁸⁰ The extension of coastal State jurisdiction over foreign ships for environmental issues was one of the innovative features of the EEZ regime, which from very early in the negotiations was linked to the idea of internationally accepted rules.¹⁸¹ This linkage is highlighted through the notion of ‘generally accepted international rules and standards’ which ‘reflected the crux of a delicately weighed balance of power arrived at between coastal states and shipping nations’.¹⁸² Thus, the competence of a coastal State is limited to applying international rules and standards established by the competent international organisation, the IMO, or a general international conference over foreign ships.¹⁸³ The rules of reference also allows State to implement those subsequently adopted or amended international rules and standards.¹⁸⁴ It should be acknowledged that there are no unified criteria to determine which international rules and standards have reached the status of ‘generally accepted’.¹⁸⁵ It could be argued that this reference should not be limited to customary international law or binding agreements, but also include non-binding rules and standards that have been widely followed in State practice.¹⁸⁶ Of particular interest, the resolutions of the IMO Assembly and other main technical bodies are normally adopted by consensus of all 176 IMO Member States and accordingly reflect global agreement.¹⁸⁷ These resolutions often incorporate recommendations on the implementation of technical rules and standards not included in IMO treaties that can be adopted by national legislations to apply to foreign ships.¹⁸⁸ In addition, these resolutions may later be developed into mandatory instruments, either as an amendment to an existing treaty or as an independent treaty.¹⁸⁹

Essentially, vessel-source pollution is caused by either operational (intentional) discharges or accidental (unintentional) discharges.¹⁹⁰ Measures to prevent, reduce and control vessel-source pollution are consequently divided into two categories: rules and standards relating to the characteristics and management of the vessel to reduce and regulate operational discharges; and regulation of the vessel and navigation to prevent and counter accidental discharges.¹⁹¹ Recognising safer ships will reduce vessel-source pollution and lead to cleaner seas means that regulations to improve navigational safety positively contribute to the protection of the marine environment.¹⁹² It is further recognised that ships contribute to air pollution and global emissions of carbon dioxide which are subject to regulations developed under the International Convention for the Prevention of Pollution from Ships (MARPOL).¹⁹³ The coastal State may regulate pollution of the marine environment from or through the atmosphere, applicable to the air space under its sovereignty and to vessels flying its flag or vessels or aircraft of its registry.¹⁹⁴ Therefore, the coastal State may adopt laws to regulate air pollution from foreign ships by giving effect to relevant international rules and standards, but may not regulate air pollution from foreign aircraft in its EEZ.

It is noteworthy that subsequent State practice also granted the coastal State additional rights to locate, mark and remove shipwrecks found in its EEZ if they pose a hazard to navigation or the marine environment.¹⁹⁵ The Nairobi International Convention on the Removal of Wrecks (RWC) was concluded under the auspice of IMO and applies only to the EEZ, or to an equivalent coastal area of up to 200 NM where no EEZ is claimed.¹⁹⁶ The primary responsibility for removing a wreck rests with the registered owner, who is liable for the costs of locating, marking and removing the wreck and is obliged to maintain compulsory insurance or other financial security for such purposes.¹⁹⁷ The coastal State in whose EEZ the wreck is located has been given the status as ‘affected State’ and a number of associated rights, such as determining whether a wreck poses a hazard, setting a deadline for removing the wreck of concern, and removing the wreck if the registered owner fails to meet that deadline.¹⁹⁸ Flag States to the RWC are deemed to have consented to such actions.¹⁹⁹ The preamble and Article 16 of RWC state that it is to be implemented consistently with UNCLOS and does not prejudice rights and obligations under UNCLOS.

The RWC represents a modest extension to the EEZ rights of coastal States bestowed by UNCLOS by expanding the legal basis to protect navigational safety and to prevent marine environmental harm from a wreck. Given the lack of explicit reference in UNCLOS, the rights granted to the coastal State in the RWC can be seen as a specific agreement in line with Article 59, attributing rights in respect of a matter not addressed in UNCLOS.²⁰⁰ The coastal State is given the right to locate, mark and remove wrecks to protect its ‘related interests’ that are directly affected or threatened by a wreck. The ‘related interests’ are connected to the economic uses of the area, including fisheries activities and offshore infrastructures, and the wellbeing of the area concerned, including ‘conservation of marine living resources and of wildlife’.²⁰¹ The exercise of coastal State rights is also guided by the principle of necessity and reasonableness, and giving due regard to the rights of other States.²⁰² The attribution and the exercise of the rights under RWC affirms the two legal doctrines under the EEZ regime of UNCLOS.

There are examples whereby the coastal State goes beyond the existing generally accepted international rules and standards to regulate foreign ships navigating in its EEZ. The conflicting State practice can be observed from the declarations and objections made by States when ratifying the Basel Convention.²⁰³ Colombia, Ecuador, Egypt, India, Mexico, Portugal, Uruguay and Venezuela were of the view that they could require prior notification of all transboundary movements of hazardous wastes across their EEZ, whereas Finland, Germany, Italy, Japan, the Netherlands, Singapore, Sweden, the United Kingdom and the United States were against such a position.²⁰⁴ Moreover, Argentina, Brazil, Chile, Kiribati, Nauru, New Zealand and South Africa all have regulated the movement of nuclear ships or nuclear cargos in their EEZs, which was criticised by Japan, the United Kingdom and the United States on various occasions.²⁰⁵ Ten States in the Pacific region also adopted the Waigani Convention to reduce and eliminate transboundary movements of hazardous and radioactive waste, including in their EEZs.²⁰⁶ It is difficult to reach a definite conclusion on whether the relevant practice is sufficiently widespread and uniform to have given coastal States the right to regulate foreign ships based on the nature of the ship and its cargo.²⁰⁷ These State practices have, nevertheless, promoted the development of both binding and non-binding instruments on the transport of dangerous goods and radioactive materials under the auspice of IMO and the International Atomic Energy Agency.²⁰⁸

Coastal States have been able to advance their unilateral legislation to the status of international rules and standards through appropriate channels. This process was demonstrated by the IMO’s legislative process with regard to double-hull requirement for oil tankers, which was very much dictated by domestic developments in the United States following the Exxon Valdez incident of 1989, and in France, Spain and the European Communities following the sinking of the tankers Erika and Prestige in 1999 and 2002, respectively.²⁰⁹ In particular, as a result of the breakup of the oil tanker Prestige in November 2002, Spain and France unilaterally asserted that they would require information and impose rigorous inspections on single-hull oil tankers in excess of 15 years old passing through their EEZs; if the vessels were found to be unseaworthy, they would be expelled from their EEZs.²¹⁰ This action was joined shortly after by Portugal and Morocco, who urged the European Union to ban large single-hull tankers carrying heavy-grade oil from entering any European port.²¹¹ These unilateral actions exceeded the coastal States’ environmental jurisdiction in their EEZ and generated difficult debates at IMO.²¹² However, over time, these unilateral actions effectively contributed to the acceleration of the gradual phasing-out of single-hull tankers within Europe²¹³ and then worldwide,²¹⁴ changing perceptions and the governing standards for the design and construction of oil tankers.

There are a large number of international conventions and instruments concerning vessel-source pollution that could arguably be considered ‘generally accepted international rules and standards’ and become applicable in the EEZ through domestic legislation.²¹⁵ It can be observed that all of the conventions and instruments are consistent with the jurisdiction allocated between the flag State and coastal State without giving additional right to the coastal State, except the RWC.²¹⁶ Should the coastal State choose to give effect to these rules and standards through its domestic laws, they could be the legal basis to hold the flag State responsible if a pollution incident does occur in the EEZ.

4.3.2.2 Specially Protected Areas

In addition to giving effect to the implementation of generally accepted international rules and standards, the coastal State may adopt, through appropriate channels, special measures to regulate ships and shipping in a particular area within its EEZ in association with various concepts of specially protected areas. The rationale of designating specially protected areas is that the general standards of protection may be inadequate due to the ecological or biological vulnerability of certain marine areas; therefore, a tailored regime with higher protection may be desirable.²¹⁷ The effective use of specially protected areas can contribute to the conservation of biodiversity, the protection of marine habitats and species, and the preservation of the marine environment.²¹⁸

(1) Special Areas under MARPOL

If the discharge of certain harmful substances by ships, even when operating in compliance with generally applicable international standards, becomes unacceptable in a certain area, the coastal State may, through IMO, define such area as a Special Area under the MARPOL annexes, and restrict and monitor the discharge more closely.²¹⁹ A Special Area may be designated within the EEZ and ‘may encompass the maritime zones of several States, or even an entire enclosed or semi-enclosed area’.²²⁰

The IMO is the only competent organisation to approve the designation of a Special Area under MARPOL.²²¹ In the proposal for designation, the coastal State must prove that the proposed area satisfies the detailed criteria of oceanographic conditions, ecological conditions and vessel traffic characteristics.²²² The ecological conditions of the proposed area are directly linked to the subjects that fall under the sovereign rights of the coastal State, such as depleted, threatened or endangered marine species, spawning, breeding and nursery areas and critical habitats for marine resources, including fish stocks.²²³ Other elements, such as threats to amenities, the influence of other sources of pollution and existing management regimes, may also be taken into account.²²⁴

Under the MARPOL annexes, there are four types of Special Areas addressing pollution from oil (ten designated Special Areas), noxious liquid substances (one designated Special Area), sewage (one designated Special Area) and garbage (eight designated Special Areas) and seven designated Emission Control Areas dealing with prevention of air pollution.²²⁵ Many of these designated areas cover marine areas under the EEZ claims of coastal States in the Mediterranean Sea, the Baltic Sea, the North Sea, the Arctic waters, North West European Waters, the Wider Caribbean region, including the Gulf of Mexico and the Caribbean Sea, and North America.²²⁶

The more restrictive discharge requirements of these Special Areas may ‘only become effective when adequate reception facilities are provided for ships in accordance with the provisions of MARPOL 73/78’.²²⁷ Ships navigating in an enforced Special Area must obey such discharge restrictions.

(2) Particularly Sensitive Sea Areas

If the ‘recognized ecological, socio-economic, or scientific attributes’ of an area are such that it ‘may be vulnerable to damage by international shipping activities’, coastal States may designate it through IMO as a ‘Particularly Sensitive Sea Area (PSSA)’, where associated protective measures could be adopted to ‘prevent, reduce, or eliminate the threat or identified vulnerability’.²²⁸ A PSSA can be designated in the EEZ ‘with the view to the adoption of international protective measures regarding pollution and other damage caused by ships’.²²⁹

Coastal States, however, do not have unilateral legislative jurisdiction in the PSSA. Any proposed protective measures must be ‘already available under an existing IMO instrument’, or could be developed within the competence of IMO or pursuant to UNCLOS Article 211(6) concerning special areas.²³⁰ Measures for the designated PSSAs must be adequate and clearly linked with the identified vulnerability of the area, which may include the designation of Special Areas under MARPOL, ships’ routeing and reporting systems, areas to be avoided, pilotage schemes and other vessel traffic management systems.²³¹

There are currently eighteen designated PSSAs worldwide, with many covering marine areas under the EEZ claims of coastal States.²³² For instance, the entire western coasts of the United Kingdom, Ireland, Belgium, France, Spain and Portugal, from the Shetland Islands in the North to Cape S. Vicente in the South, covering large areas of the territorial seas and the EEZs, were designated as a single PSSA in 2004.²³³ In addition to the existing protective measures in this area, including various deep-water routes, areas to be avoided, traffic separation schemes and ships’ routeing measures, a mandatory ship reporting system was adopted for ‘every kind of oil tanker of more than 600 tonnes deadweight’ carrying heavy crude oil, heavy fuel oils, bitumen and tar and their emulsions navigating in this PSSA.²³⁴

(3) Special Areas under Article 211(6)

UNCLOS recognises the coastal State’s right to establish special areas in the EEZ for the purpose of preventing and combatting vessel-source pollution. Where the generally accepted international rules and standards on vessel-source pollution are inadequate to meet the special circumstances, the coastal State may, through IMO, adopt special mandatory measures as ‘required for recognized technical reasons in relation to its oceanographical and ecological conditions, as well as its utilisation or the protection of its resources and the particular character of its traffic’ to a particular, clearly defined area of its EEZ.²³⁵

These additional protective measures seem to have considerable potential to enhance the level of stringency for regulating vessel-source pollution in comparison to the general international rules and standards applicable in the EEZ. Moreover, Article 211(6) provides the necessary prescriptive power for the coastal State to fulfil its general obligation to take measures ‘necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life’.²³⁶ However, as at 2024, no State has established a special area in the EEZ under Article 211(6).²³⁷

One reason for the limited use of Article 211(6) may be that some States consider this provision to not give the coastal State sufficient independence because of the lengthy requirement of obtaining approval from IMO.²³⁸ At the Fourth Session of the Third Conference in 1976, India made a proposal to give coastal States the independent right to establish designated areas in the EEZ ‘in which the coastal States may prohibit or regulate the entry and passage of foreign ships … and take such other measures as it may deem necessary or appropriate for the purpose of … protecting the marine environment’ along with other purposes.²³⁹ After this proposal had been rejected, India proclaimed such rights in its domestic law.²⁴⁰ Similar legislation has been adopted by Bangladesh,²⁴¹ Guyana,²⁴² Nigeria,²⁴³ Pakistan²⁴⁴ and Sri Lanka.²⁴⁵ These claims have given the coastal State wide discretionary power over the designated areas where navigational rights may be threatened. However, the comprehensive authority claimed by these States has drawn criticism to the creeping jurisdiction within the EEZ regime and has put their legitimacy into question.²⁴⁶

Another reason for the limited use of Article 211(6) would be that subsequent State practice has shown a preference to establish other types of specially protected areas. The most commonly used ones are Special Areas under MARPOL and PSSAs, which seem to have served the purpose of protecting special oceanographic and ecological conditions of areas within the EEZ.²⁴⁷

(4) Ice-Covered Areas

Another UNCLOS-authorised special regime for environmental protection purposes in the EEZ is the coastal State’s unilateral prescriptive jurisdiction in ice-covered areas.²⁴⁸ It is recognised that the ‘particularly severe climatic conditions and the presence of ice covering such areas for most of the year create obstructions or exceptional hazards to navigation, and pollution of the marine environment could cause major harm to or irreversible disturbance of the ecological balance’, which makes such areas even more vulnerable to vessel-source pollution.²⁴⁹

In contrast with the general environmental jurisdiction and the special areas under Article 211(6), under Article 234 the coastal State has the right to unilaterally prescribe laws and regulations for ice-covered areas, with no restrictions to implement international rules and standards, nor do they need approval of IMO. Consequently, the coastal State has the competence to determine what type of standard vessels may enter and which sea lanes they must follow in its ice-covered EEZ. One of the uncertain elements of this special authorisation is that there is no general agreement on the definition of ‘the presence of ice covering such areas for most of the year’, which is increasingly challenging due to the impact of climate change and the reduction of ice cover in the polar regions.²⁵⁰

This special authorisation to the coastal State, however, does not alter the fact that the ice-covered areas remain subject to the general EEZ legal regime established by UNCLOS.²⁵¹ And there are safeguards put in place to balance the environmental interests of coastal State in these areas with the navigational interests of all States.²⁵² In such areas, the coastal State is obliged to ensure that these measures are ‘non-discriminatory’ and ‘based on the best available scientific evidence’, and that they ‘have due regard to navigation’.²⁵³

As the negotiating history indicates, Article 234 was negotiated directly among the Arctic littoral States – Canada, the Soviet Union (USSR) and the United States – and was intended to apply primarily to the Arctic.²⁵⁴ Canada, for example, adopted the Arctic Waters Pollution Prevention Act and Arctic Shipping Pollution Prevention Regulations, among others, to ensure that navigation in Arctic waters is conducted in a way to preserve and protect the natural resources of the Canadian Arctic.²⁵⁵ The special regulations include the establishment of shipping safety control zones where special construction, design, equipment and manning (CDEM) standards and requirements apply, and the use of ice navigators and Arctic Pollution Prevention Certificates are mandatory.²⁵⁶

The regulations for navigation in ice-covered areas have been unified through the international rules and standards developed by IMO, particularly the mandatory Polar Code that applies to both the Arctic and the Antarctic.²⁵⁷ The Polar Code covers the full range of CDEM, operational, training, search and rescue, and environmental protection matters relevant to ships operating in the inhospitable polar waters.²⁵⁸ The Polar Code has been made mandatory through amendments to MARPOL and other relevant conventions.²⁵⁹ Despite being without the official title, the Polar Code effectively designated Arctic Waters as a Special Area under MARPOL with special mandatory measures for the prevention of pollution.²⁶⁰ Another contribution of the Polar Code is a generally agreed geographic scope of Arctic Waters, in contrast to the different interpretations of ‘within the limits’ of the EEZ and covered by ice ‘most of the year’ under Article 234.²⁶¹ With the entry into force of the Polar Code in 2017, the three major coastal States in the Arctic – Canada, Russia and the United States – all amended their domestic legislations to enhance their compatibility with these international rules and regulations.²⁶²

In sum, these specially protected areas, once duly designated, must be respected by all applicable vessels navigating through or within these areas. The rationale for giving such competence is to protect the coastal State’s special interests in the EEZ and to assist it in fulfilling its obligation to protect and preserve the marine environment. However, both the designation of the area and the adoption of special protective measures, though initiated by the coastal State, need to be approved by IMO except for ice-covered areas. These procedural requirements confirm the superior status of the generally accepted international rules and standards in relation to environmental protection in the EEZ.

4.3.2.3 Pollution from Seabed Activities and by Dumping

The coastal State’s jurisdiction to protect and preserve the marine environment extends to two further activities, seabed activities including the use of artificial islands, installations and structures subject to national jurisdiction, and dumping. The coastal State has a broader scope of prescriptive jurisdiction over these two activities compared to its jurisdiction over vessel-source pollution.

Most, if not all, seabed activities including the use of artificial islands, installations and structures are connected with the exploration of the seabed and exploitation of its natural resources that are subject to the sovereign right of the coastal State.²⁶³ Within the EEZ, the most common activities are connected with the exploration and exploitation of oil and gas, which may give rise to both intentional and accidental pollution.²⁶⁴ The coastal State also has jurisdiction to prevent, reduce and control pollution from pipelines that are not associated with an activity under its jurisdiction.²⁶⁵ The coastal State is obliged to take all necessary measures to prevent, reduce and control pollution from the offshore activities subject to its jurisdiction with the constraint that such laws, regulations and measures must be ‘no less effective than international rules, standards and recommended practices and procedures’.²⁶⁶ As at 2024, States have not developed any binding international agreement to regulate pollution from these offshore activities.

Dumping within the EEZ is subject to the prior approval of the coastal State, which has the right to permit, regulate and control such dumping after due consideration with other relevant States.²⁶⁷ The laws, regulations and measures adopted by the coastal State must be ‘no less effective in preventing, reducing and controlling such pollution than the global rules and standards’.²⁶⁸ The 1972 London Convention and 1996 London Protocol, which have been accepted by 87 and 53 contracting parties, respectively, are the only global treaties regulating dumping at sea.²⁶⁹

Any foreign ships or aircraft that have obtained approval from the coastal State to engage in seabed activities or dumping in its EEZ are subject to the coastal State’s environmental regulations. Compared with the coastal State’s jurisdiction over vessel-source pollution, the reference to ‘international rules’ and ‘global rules and standards’ is not subject to the requirement that they have been ‘generally accepted’. This arguably widens the scope of the applicable global rules and standards. Nonetheless, the coastal State’s jurisdiction to regulate pollution from seabed activities and dumping is less likely to directly affect the freedom of navigation and overflight in the EEZ. In the event of an accidental pollution incident, such as the 2009 Montara oil spill and the 2010 Deepwater Horizon accident, ships might need to alter their navigation route to avoid an area.²⁷⁰

4.3.3 Enforcement Jurisdiction

It should be acknowledged that the enforcement provision in Article 73 of UNCLOS refers only to the exercise of coastal State’s ‘sovereign rights to explore, exploit, conserve and manage the living resources’. The coastal State’s explicit enforcement jurisdiction²⁷¹ over the protection and preservation of the marine environment is provided in Part XII. Such jurisdiction is framed around the primary subject, namely ships and aircraft, including those flying foreign flags.

It is significant that coastal States are given enforcement jurisdiction over vessel-source pollution in the EEZ. This represents an attempt to respond to the ineffectiveness of a regime based on exclusive flag State enforcement over such an issue.²⁷² Following the limited scope of the prescriptive jurisdiction, the coastal State may only enforce those environmental laws ‘conforming to and giving effect to generally accepted international rules and standards’ established through IMO or general diplomatic conference.²⁷³ Coastal States are given a graded enforcement competence depending on the amount of the discharge and the perceived or anticipated severity of the damage to the marine environment. As clearly stated in Article 111, the right of hot pursuit applies to violations of environmental laws and regulations in the EEZ.²⁷⁴

If the coastal State has ‘clear grounds for believing’ that the vessel has committed a violation of applicable laws and regulations in its EEZ, the first step in exercising enforcement jurisdiction is to require the suspected foreign vessel navigating in the EEZ or the territorial sea to give information about its identity and other relevant information.²⁷⁵ Second, if the vessel has failed to provide such information and the coastal State has ‘clear grounds for believing’ that there is danger of such violation ‘resulting in a substantial discharge causing or threatening significant pollution of the marine environment’, it may conduct physical inspection of the vessel for matters relating to the violation.²⁷⁶ Third, if the inspection leads to ‘clear objective evidence’ that the violation will result in ‘a discharge causing major damage or threat of major damage to the coastline or related interests of the coastal State, or to any resources of its territorial sea or [EEZ]’, the coastal State may, ‘provided that the evidence so warrants, institute proceedings, including detention of the vessel, in accordance with its laws’.²⁷⁷ These enforcement measures apply to violations of ‘applicable international rules and standards for the prevention, reduction and control of pollution from vessels or laws and regulations of that State conforming and giving effect to such rules and standards’.²⁷⁸ The word ‘or’ seems to indicate that the coastal State could exercise enforcement jurisdiction over violations of applicable international rules and standards even if it has not adopted domestic laws to implement them. These would include violations of CDEM standards, discharge and emission control, ships’ routeing systems, other operational practices, as well as protective measures applicable to specially protected areas. The three progressive steps of enforcement measures by the coastal State, each qualified by an increased level of threat to the marine environment, will have an increasing impact on the freedom of navigation if the foreign vessel has committed a violation in the EEZ.

It is worth noting that within ice-covered areas the coastal State is given a wide margin of discretion of enforcement jurisdiction, in contrast to its limited competence with regard to specially protected areas established under UNCLOS Article 211(6), MARPOL or the PSSA.²⁷⁹ As indicated in the Canadian Arctic Waters Pollution Prevention Act, a pollution prevention officer may ‘board any ship that is within a shipping safety control zone and conduct such inspections thereof as will enable the officer to determine whether the ship complies with standards prescribed by any regulations’ that are applicable in such a zone and may order the ship to proceed outside the zone on reasonable grounds.²⁸⁰ Violations under the Act are punishable offences, and the suspected person and ship are liable to pay a fine on summary conviction.²⁸¹ However, this broader competence needs to be exercised in accordance with the coastal State’s due regard obligation and the other general requirements applied in the process of enforcement activities, such as acting in a non-discriminatory, reasonable, proportionate and non-abusive manner.²⁸² For example, the coastal State may only take actions based on clear, or at least reasonable, grounds for believing that a foreign vessel has acted in contravention of its applicable laws or regulations and must avoid causing unnecessary interference with the vessel.

In addition to their general enforcement jurisdiction, coastal States also have the right to take and enforce proportionate measures to avoid pollution arising from accidental discharge due to maritime casualties in the EEZ.²⁸³ The supertanker Torrey Canyon, after running aground on rocks outside the territorial sea of the United Kingdom in 1967, caused devastating environmental effects and was eventually bombed by the Royal Navy to avoid further damage.²⁸⁴ At that time, the United Kingdom had no right to intervene with foreign vessels on the high seas, but it claimed to act according to the right of self-protection or self-help under general law, whereby a State, when one of its vital interests is affected or is likely to be affected by certain events, can respond with extreme measures.²⁸⁵ This incident inspired the adoption of the 1969 Intervention Convention, which permitted the coastal State to take actions against foreign vessels on the high seas as ‘may be necessary to prevent, mitigate or eliminate danger to its coastline or related interests from pollution by oil or other substances or the threat thereof, following upon a maritime casualty’.²⁸⁶ This practice has been incorporated into Article 221 of UNCLOS, which permits the coastal State, subject to other rules of international law, to ‘take and enforce measures’ in the EEZ ‘proportionate to the actual or threatened damage’ to avoid pollution or threat of pollution arising from maritime causalities.²⁸⁷

UNCLOS also lays down detailed procedural and other safeguards to ensure that the freedom of navigation in the EEZ is not unduly restricted from enforcement jurisdiction by the coastal State.²⁸⁸ There are general obligations of coastal States to take measures to facilitate proceedings, to exercise their enforcement powers through qualified government entities or officials, to avoid endangering the safety of navigation or human lives, to refrain from discrimination against foreign vessels, to duly notify the flag State and other States concerned, to limit itself to monetary penalties and to be liable for damages arising from improper enforcement measures.²⁸⁹

In addition, there are essential safeguards that reflect the dominant interests of the freedom of navigation over the environmental jurisdiction of the coastal State. Article 226 spells out the main procedures for investigating foreign vessels to minimise unnecessary physical inspection.²⁹⁰ The initial physical inspection provided in Article 220(3) ‘shall be limited to an examination of such certificates, records or other documents as the vessel is required to carry’ by international law.²⁹¹ Further inspection is only permitted when ‘there are clear grounds for believing’ that these documents are misleading or when they are inadequate or invalid.²⁹² Where the violation is confirmed and the vessel is accordingly detained, coastal States are obliged to release it promptly upon the posting of a bond or other financial security.²⁹³ However, if the release of the vessel may pose an unreasonable threat of damage to the marine environment, the coastal State may refuse or make its release conditional upon appropriate repair.²⁹⁴ Additionally, States are required to cooperate to develop detailed investigation procedures to avoid unnecessary inspection of vessels at sea, which is intended to limit the power of coastal States to apply domestic laws.²⁹⁵

Furthermore, Article 228 implies that the disciplinary action imposed by a coastal State in response to a violation relating to vessel-source pollution in its EEZ can be overridden by instituting a flag State proceeding.²⁹⁶ The flag State has the right to request such suspension within six months of the date on which the coastal State instituted the proceedings, and is obliged to disclose its proceedings to the coastal State in due course.²⁹⁷ However, if the violation has caused ‘major damage to the coastal State’ or the flag State has ‘repeatedly disregarded’ its enforcement obligation, the privilege of the flag State does not stand.²⁹⁸ The reference to ‘major damage’ echoes Article 220(6) but has not been elaborated, and it is also not clear what actions would constitute ‘repeatedly disregarded’ behaviour, which leaves ample room for differing interpretations.²⁹⁹ The coastal State is barred from instituting proceedings to impose penalties on foreign vessel if the flag State has taken corresponding charges, or after three years since the violation was committed.³⁰⁰ Article 228 indicates the clear intention to give priority to flag State jurisdiction over vessel-source pollution.³⁰¹

It is recognised that the increasing volume of shipping traffic poses a serious threat to the coastal marine environment and may cause irreversible damage to marine habitats and fragile ecosystems. Consequently, there is growing awareness of the need to prevent, reduce and control vessel-source pollution.³⁰² UNCLOS has, in fact, altered the exclusive jurisdiction of flag States in respect of vessel-source pollution, but the concurrent jurisdiction granted to the coastal State is onerous and retrospective and does not substantially encroach upon international navigation.³⁰³ It has been pointed out that this is the most complex modification to the regime governing the coastal State and other States in the exercise of their rights and jurisdiction.³⁰⁴ Freedom of navigation is further protected by ensuring uniformity of applicable international rules and standards, which are the normal limit of coastal State competence.³⁰⁵ In addition, State practice, although limited, indicates that most coastal States have only made a general claim to environmental jurisdiction in the EEZ and few of them have enacted specific domestic laws, let alone undertaken enforcement actions.³⁰⁶ These situations perhaps reflect the predominance of internationalism over unilateralism and navigational interests over coastal States’ environmental concerns in the EEZ. Nevertheless, the marginal coastal State jurisdiction provides extra protection to its coastal marine environment and may pressure flag States to enhance compliance by their vessels with applicable international rules and standards. As IMO has been pushed by States to adopt initiatives to address vessel-source pollution, coastal States’ prescriptive jurisdiction should gradually expand in the EEZ through the implementation of international rules and standards.³⁰⁷

4.4 Rights and Jurisdiction with Regard to Artificial Islands, Installations and Structures

4.4.1 General Scope of Coastal State Rights

Similar to the regime of protection and preservation of the marine environment, coastal States only have ‘jurisdiction’ to establish and use artificial islands, installations and structures in the EEZ, which is a narrower concept than ‘sovereign rights’.³⁰⁸ The exercise of such jurisdiction is elaborated in Article 60, which addresses it in two formulations. In the first place, coastal States have the ‘exclusive right to construct and to authorize and regulate the construction, operation and use of artificial islands’ and of ‘installations and structures for the purposes provided for in Article 56 and other economic purposes’ or those ‘which may interfere with the exercise of the rights of the coastal State in the zone’.³⁰⁹ In the second place, coastal States have ‘exclusive jurisdiction over such artificial islands, installations and structures, including jurisdiction with regard to customs, fiscal, health, safety and immigration laws and regulations’.³¹⁰ Moreover, the coastal State has jurisdiction over marine scientific research in the EEZ, thus the deployment and use of any type of scientific research installation or equipment are subject to the coastal State’s jurisdiction.³¹¹ Furthermore, as discussed earlier, the coastal State has the jurisdiction to prevent, reduce and control pollution from seabed activities including the use of artificial islands, installations and structures under their jurisdiction.³¹² These rights and jurisdiction apply mutatis mutandis to the artificial islands, installations and structures built in and upon the continental shelf.³¹³

The three categories of infrastructures are broad enough to cover broadcasting facilities, deep-water ports, offshore airports, offshore surveillance structures, seabed drilling platforms and other exploitation facilities, scientific research installations and even almost self-contained industrial towns.³¹⁴ Article 60 distinguishes artificial islands from installations and structures, with the former falling under the exclusive right and jurisdiction of the coastal State while the latter are subject to certain qualifications. However, UNCLOS does not provide any definition of the three terms, which renders the distinction difficult to determine, as an installation or structure could eventually be assimilated into an artificial island.³¹⁵ Except for the common feature of having to be human-made objects, it seems that the main criteria for differentiation the three terms are size and permanency, and possibly the method of construction.³¹⁶

One consequence of the lack of definitions is that the legal status of floating platforms and other structures in the EEZ, which can move by their own power but will become stable once they reach the operation site, is not entirely clear.³¹⁷ At the early stage of the negotiations, Belgium and the United States proposed to exclude floating artificial islands from coastal States jurisdiction because they were ‘theoretically mobile’ and could be ‘treated as vessels’.³¹⁸ This proposal was rejected, as both scientific evidence and State practice support the conclusion that floating structures operate in different ways from ships.³¹⁹ However, the definition of ships adopted in some IMO instruments includes floating platforms except when they are on location engaged in seabed activities.³²⁰ Under Canadian law, at least some floating structures are included in the definition of ‘marine installation or structure’.³²¹ Based on the fact that they are mainly used for economic purposes or scientific research in the EEZ, it is plausible to treat floating structures as artificial islands, installations or structures under Article 60, especially when they become stationary and operate in one particular area.³²²

Although Article 60 limits coastal States’ rights with regard to specific installations and structures, it leaves coastal States with broad discretion to decide the scope of their jurisdiction. When referring to ‘other economic purposes’, in addition to those provided in Article 56, which already includes ‘other activities for the economic exploitation and exploration’, Article 60 indicates that it is ‘a matter that can also influence the assignment of residual rights’ under Article 59.³²³ It has been argued that the exclusion of installations and structures for non-economic purpose from coastal States’ exclusive rights represents a successful effort to exempt installations and structures used for military purposes.³²⁴ However, the coastal State may still argue that such installations or structures ‘may interfere [with] the exercise of’ its rights on a case-by-case basis. This again will affect the interpretation and application of Article 59, as it gives a clear preference for the coastal State to decide which non-economic installations and structures will be subject to its jurisdiction.³²⁵ Therefore, most installations and structures that may possibly be erected within the EEZ, including those used for scientific research projects, are subject to the coastal State’s exclusive authority.³²⁶

Coastal States can exercise ‘exclusive jurisdiction’ over such artificial islands, installations and structures ‘with regard to customs, fiscal, health, safety and immigration laws and regulations’.³²⁷ Consequently, no vessels may load or unload any commodity, currency or person onto these infrastructures without coastal State authorisation. It would thus follow that coastal States should have criminal jurisdiction with regard to offences committed on or against such artificial islands, installations and structures.³²⁸ According to the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf (SUA Platforms Protocol), coastal States may criminalise offences of unlawful seizures or exercises of control over a fixed platform, or performance of violence against a person on board, or any other activities that may endanger its safety.³²⁹ The exclusive jurisdiction is particularly important considering the growing size and capacities of such infrastructure used within the EEZ.

Many States have claimed exclusive right and jurisdiction over artificial islands, installations and structures in the EEZ by incorporating the general scope of Article 56 into their domestic laws, with few of them including the detailed rules of Article 60.³³⁰ It is noteworthy that Brazil,³³¹ Cambodia,³³² Guyana,³³³ India,³³⁴ Indonesia,³³⁵ Myanmar,³³⁶ Pakistan³³⁷ and Sri Lanka³³⁸ have specified that their rights and jurisdiction extend to artificial islands, installations and structures for any purposes. It is also interesting to note that Honduras,³³⁹ Maldives,³⁴⁰ Mauritius,³⁴¹ the Seychelles³⁴² and Vanuatu³⁴³ have retreated from their excessive claims and have amended their domestic laws to be consistent with UNCLOS.

4.4.2 Safety Zones

In order to protect the safety of both navigation and the artificial islands, installations and structures, where necessary, the coastal State may establish reasonable safety zones around such infrastructure and take appropriate measures.³⁴⁴ Coastal States have the independent right to establish these safety zones in contrast to other specially protected areas in the EEZ that have to be approved by IMO. This leaves coastal States broad discretionary power to decide when it is necessary to establish, and how to justify the reasonableness, of the safety zones.

The coastal State’s rights are, nevertheless, subject to a number of constraints. Coastal States must determine the breadth of safety zones ‘taking into account applicable international standards’.³⁴⁵ ‘Taking into account’ is a rather vague requirement and much less demanding than ‘conforming to and giving effect to generally accepted international rules and standards’ used to limit the coastal State’s jurisdiction over vessel-source pollution.³⁴⁶ The designation of safety zones must be ‘reasonably related to the nature and function of the artificial islands, installations or structures’, and the breadth ‘shall not exceed a distance of 500 meters around them, … except as authorised by generally accepted international standards or as recommended by the competent international organization’.³⁴⁷ Where the installations are used for scientific research, the breadth must not exceed a distance of 500 metres with no exceptions.³⁴⁸

Coastal States may ‘take appropriate measures’ to ensure safety of both navigation and the infrastructure within the safety zones ‘in the nature of the enactment of laws or regulations, and of the enforcement of such laws and regulations’.³⁴⁹ Although UNCLOS does not indicate which measures may be considered appropriate, it requires all ships to ‘comply with generally accepted international standards regarding navigation in the vicinity of artificial islands, installations and structures and safety zones’.³⁵⁰ This seems to limit these ‘appropriate measures’ to those adopted by IMO or other international conferences regarding the safety of navigation. These measures may include ships’ routeing systems, ship reporting systems, vessel traffic services, navigational aids, automatic identification systems, long-range identification and tracking system, pilotage and other operational measures for shipping.³⁵¹ Foreign vessels are required to respect the applicable measures, to navigate with caution and, where appropriate, to take precautionary actions when approaching such infrastructure or safety zones.³⁵² It is not completely clear, however, whether the coastal State may extend its entire jurisdiction applicable to the safety zones to include customs, fiscal, health, immigration and environmental regulations.³⁵³

4.4.3 Safeguards

UNCLOS confers extensive authority on coastal States to establish and use artificial islands, installations and structures and safety zones for economic purposes. Given that the existence of these offshore infrastructures will have an impact on the navigational freedoms, it is important that coastal States exercise such rights and jurisdiction in a non-abusive manner and have due regard to other States’ rights and freedoms.³⁵⁴ These general obligations are strengthened by detailed procedural requirements and safeguards, particularly with respect to the preservation of the freedom of navigation. As State practice stands, the height of most offshore infrastructures do not pose a major threat to the freedom of overflight.

First of all, coastal States must give ‘due notice’ of the construction of any artificial islands, installations and structures.³⁵⁵ The ‘due notice’ is only relevant to the ‘construction’ of the infrastructure and serves to notify other States of the intention of the coastal State to begin the construction process.³⁵⁶ The notice should be given in the format of notices to mariners, radio warnings and markings on all appropriate navigational charts.³⁵⁷ It is not clear how far in advance the coastal State should give such notice, but it should be before the actual construction take place. The coastal State is also not under an obligation to consult with other States regarding the impending location or construction of such infrastructure.

Secondly, the construction of such infrastructure and the establishment of the safety zones around them ‘may not be established where interference may be caused to the use of recognized sea lanes essential to international navigation’.³⁵⁸ However, the tentative word ‘may’ indicates that, where necessary, a coastal State could still establish such infrastructure and the safety zones around them, even if interference is caused. Moreover, the rigid requirements of ‘recognized’ and ‘essential’ imply that when normal sea lanes are not recognised as essential to international navigation, or even when there are alternative sea lanes which can be used, interference is permissible. This interpretation of the limited effect of such a requirement is reaffirmed by the more stringent language used in relation to scientific research installations in the EEZ, where they ‘shall not constitute an obstacle to established international shipping routes’.³⁵⁹ In practice, in order to avoid potential interruption to navigation, IMO calls on coastal States to study the pattern of shipping traffic through the intended exploration areas to avoid serious obstruction of sea approaches or shipping routes.³⁶⁰

Thirdly, coastal States must maintain ‘permanent means for giving warning of their presence’.³⁶¹ Installations or equipment used for scientific research in the EEZ must have ‘adequate internationally agreed warning signals to ensure safety at sea’.³⁶² The permanent means are generally implemented by using navigational marks and lights.

Lastly, any abandoned or disused installations or structures

shall be removed to ensure safety of navigation, taking into account any generally accepted international standards established in this regard by the competent international organization. Such removal shall also have due regard to fishing, the protection of the marine environment and the rights and duties of other States.³⁶³

This obligation is different from the strict rule contained in the 1958 Convention on the Continental Shelf whereby ‘any installations which are abandoned or disused must be entirely removed’.³⁶⁴ UNCLOS altered the complete removal requirement and left it to the coastal State (with generally accepted international standards in mind) to determine the extent of the removal of installations and structures in specific circumstances. As the competent international organisation, IMO has adopted guidelines to address these issues.³⁶⁵

The removal of abandoned or disused installations and structures must be based on consideration of ‘any potential effect on safety of surface or subsurface navigation or of other uses of the sea’, any potential effect on the marine environment, and any other advantages or disadvantages that may be caused by such removal.³⁶⁶ If the structure is located in an area where higher traffic volume is anticipated in the future, or in the proximity of designated or customary sea lanes or port access routes, complete removal would be expected.³⁶⁷ If it is located in ‘approaches to or in straits used for international navigation or routes used for international navigation through archipelagic waters, in customary deep-draught sea lanes, or in, or immediately adjacent to, routeing systems’, then it should be entirely removed with no exceptions.³⁶⁸ Also, if the structure is ‘standing in less than 75m (or 100m if it was emplaced on the sea-bed on or after 1 January 1998) of water and weighing less than 4,000 tonnes in air, excluding the deck and superstructure, should be entirely removed’, but it is subject to certain exceptions.³⁶⁹ Such removal, entirely or partially, should be undertaken in the manner so as not to cause ‘significant adverse effects upon navigation or the marine environment’.³⁷⁰

If an abandoned or disused installation or structure has not been entirely removed, a coastal State must give the depth, position and dimensions through appropriate publicity and clearly indicate such on nautical charts.³⁷¹ Coastal States are also required to monitor ‘the accumulation and deterioration of material left on the sea-bed to ensure there is no subsequent adverse impact on navigation, other uses of the sea or the marine environment’.³⁷²

4.4.4 Enforcement Jurisdiction

The counterpart of coastal State’s exclusive right and jurisdiction over artificial islands, specific installations and structures is that other States have the mutual obligation of having due regard to the rights and duties of the coastal State and must comply with duly adopted domestic legislation.³⁷³ The coastal State’s enforcement jurisdiction is trigged when the requirements of hot pursuit are satisfied.³⁷⁴ The coastal State’s jurisdiction to enforce its legislation to implement the SUA Platforms Protocol follows the general enforcement jurisdiction contained in UNCLOS.

Compared with the three progressive steps of enforcement procedures over vessel-source pollution, it is not entirely clear what powers and competence coastal States may exercise following the hot pursuit. It could be argued that the coastal State may undertake boarding, inspection and detention of the suspected foreign vessel following a similar approach to that used for vessel-source pollution if justified by the circumstances.³⁷⁵ Since these alleged violations mainly relate to the safety of navigation, the flag State’s exclusive jurisdiction prevails over that of the coastal State, unless severe damage is caused to the infrastructure. IMO recommends that coastal States should first take actions to notify and provide evidence to the flag State of the infringement, and it is the latter’s responsibility to take appropriate measures to ensure that suitable procedures are brought against the reported vessel.³⁷⁶ This recommendation reflects the strong intention of preserving exclusive flag State jurisdiction over vessels with regard to infringement of safety zones in the EEZ.

In the Arctic Sunrise Arbitration, the tribunal considered that the coastal State may justify ‘some form of preventive action against a vessel’ if the circumstances ‘give rise to a reasonable belief that the vessel may be involved in a terrorist attack on an installation or structure of the coastal State’.³⁷⁷ If the coastal State has ‘reasonable grounds to suspect’ the vessel within the safety zone is engaged in terrorist offences against offshore infrastructure, it may take measures to board, seize and detain the vessel.³⁷⁸

The establishment and use of artificial islands, installations and structures, and the safety zones around them, will inevitably impede the freedom of navigation to some degree.³⁷⁹ The framework proposed by Article 60 attempts to create a balance between the interests of the coastal State and other States. While interference with navigation is predictable, it is to be minimised and must be eliminated once such infrastructure or safety zones no longer serve the primary purpose for which they were originally established.³⁸⁰

4.5 Resolving Disputes Concerning the Navigational Freedoms

The dispute settlement mechanism contained in Part XV of UNCLOS provides further assurance that the delicate equilibrium of rights and duties established between the coastal State and other States will be respected in practice. Like all disputes concerning the interpretation and application of UNCLOS, State parties must settle their disputes concerning the navigational freedoms by any peaceful means chosen by them.³⁸¹ Where no settlement has been reached by the peaceful means of their choice, any party may submit such dispute to the court or tribunal having jurisdiction under UNCLOS Part XV, which are known as compulsory dispute settlement procedures.³⁸² In addition, an UNCLOS court or tribunal may also have jurisdiction over any disputes concerning the interpretation and application of other relevant international agreements related to the purposes of UNCLOS.³⁸³ For example, both the London Protocol and RWC confer the UNCLOS court and tribunal jurisdiction over disputes regarding their interpretation and application.³⁸⁴

There are also special procedures and limitations applicable to disputes concerning the navigational freedoms in the EEZ. Article 297 introduces certain automatic limitations to the application of the compulsory dispute settlement procedures to disputes relating to the uses of the EEZ that resemble the balance between the coastal State and other States.³⁸⁵ Article 297 starts with an assertion of jurisdiction phrased in affirmative terms to include disputes that are subject to the compulsory dispute settlement procedures, and then exempts certain categories of disputes that touch upon important interests of the coastal State.

On the affirmed jurisdiction, it has been explicitly stated that disputes concerning the interpretation or application of provisions relating the navigational freedoms are subject to the compulsory dispute settlement procedures of Part XV.³⁸⁶ This includes both when the coastal State allegedly has acted in contravention of the relevant provisions and when other States allegedly have acted in contravention of the relevant provisions of UNCLOS and duly adopted national laws and regulations.³⁸⁷ In both M/V Saiga (No.2) and the Arctic Sunrise Arbitration, the applicants relied on Article 297(1) on matters relating to the freedom of navigation in the EEZ.³⁸⁸

In addition, the compulsory jurisdiction extends to disputes relating to when the coastal State allegedly acted in contravention of specified international rules and standards for the protection and preservation of the marine environment that are applicable to it.³⁸⁹ This ensures that other States may challenge the coastal State’s exercise of its environmental jurisdiction within the EEZ, including disputes relating to the contravention of rules and standards found in IMO instruments such as MARPOL or the London Convention.³⁹⁰ In the Chagos Marine Protected Area Arbitration, the arbitral tribunal accepted jurisdiction based on the argument that the dispute in respect of the marine protected area (MPA) established by the United Kingdom relates to the preservation of the marine environment that falls under Article 297(1)(c).³⁹¹

It should be acknowledged that the list contained in Article 297(1) does not restrict an ITLOS court or tribunal from considering disputes concerning the exercise of sovereign rights and jurisdiction in other cases.³⁹² It would have rendered the following limitations to jurisdiction redundant if the ITLOS court or tribunal could only consider three types of cases relating to the exercise of sovereign rights and jurisdiction. Where a dispute concerns the interpretation or application of relevant provisions of the EEZ, and provided that the dispute is not subject to the express limitations set out in Article 297(2) and (3), jurisdiction for compulsory dispute settlement flows from the general provisions of Article 288(1).³⁹³

On the relevant limitations to jurisdiction, Article 297(3)(a) first confirms that disputes concerning the interpretation and application of the provisions with regard to fisheries shall be subject to compulsory dispute settlement procedures, then exempts certain categories of disputes in the EEZ. Coastal States are not obliged to accept the submission to such settlement procedures for disputes

relating to its sovereign rights with respect to the living resources in the [EEZ] or their exercise, including its discretionary powers for determining the allowable catch, its harvesting capacity, the allocation of surpluses to other States and the terms and conditions established in its conservation and management laws and regulations.³⁹⁴

These disputes may be submitted to conciliation at the request of any party to the dispute if no settlement has been reached through other peaceful means chosen by the parties.³⁹⁵ Article 298(1)(b) further permits the coastal State to opt out of the compulsory dispute settlement procedures with respect to ‘disputes concerning law enforcement activities in regard to the exercise of sovereign rights or jurisdiction excluded from the jurisdiction of a court or tribunal’ under Article 297(3). However, the coastal State’s enforcement jurisdiction of its sovereign rights with respect to other economic activities and non-living resources falls outside the limitations of Article 297(3)(a) and therefore is subject to the compulsory dispute settlement procedures.³⁹⁶

The effect of Articles 297(3)(a) and 298(1)(b), is not, however, to exclude all disputes relating to fisheries in the EEZ from the compulsory mechanism.³⁹⁷ Disputes relating to fisheries that are not connected to sovereign rights granted to coastal States or their exercise are not exempted. For example, a dispute concerning the legality of imprisonment penalty for violations of fisheries laws in the EEZ could not be automatically excluded from the compulsory dispute settlement procedures.³⁹⁸ When the implementation of conservation measures of the living resources unduly impair navigational freedoms, other States may also challenge the coastal State’s actions.

In practice, a dispute often involves multiple elements of the rights and duties of the State parties involved. Therefore, how to characterise a dispute could play a crucial role in the application of the compulsory dispute settlement procedures. The Chagos Marine Protected Area Arbitration between Mauritius and the United Kingdom illustrates this point whereby the arbitral tribunal examined the ‘far from clear’ relationship between Article 297 paragraph 1 on the affirmation of jurisdiction and paragraph 3 on the limitations to jurisdiction.³⁹⁹ The dispute relating to the establishment of a MPA around the Chagos Archipelago by the United Kingdom could cover both the marine environment and the coastal State’s sovereign rights over the living resources and their exercise in the EEZ. After an examination of the scope of the MPA and the rights invoked by Mauritius, the arbitral tribunal came to the conclusion that the MPA reflected ‘environmental concerns that extend well beyond the management of fisheries’ and that the submission of Mauritius could not ‘be excluded entirely by the exception from jurisdiction set out in Article 297(3)(a)’.⁴⁰⁰ The arbitral tribunal considered that the dispute ‘relates to the preservation of the marine environment and that Mauritius has alleged a violation of international rules and standards in this area’, therefore the dispute is subject to the compulsory dispute settlement procedures asserted under Article 297(1)(c).⁴⁰¹

The application of Article 297 is subject to an additional safeguard, contained in Article 294, which restricts an UNCLOS court or tribunal from considering relevant disputes under certain circumstances. Article 294 permits a party to seek a preliminary determination, or by initiative of the court or tribunal to determine, in advance of other stages in the procedure concerning a dispute referred to in Article 297, as to ‘whether the claim constitutes an abuse of legal process or whether prima facie it is well founded’.⁴⁰² If the claim constitutes an abuse of legal process or is prima facie unfounded, the court or tribunal should take no further action in the case.⁴⁰³ The preliminary proceedings under Article 294 are independent from the general right of any party to a dispute to make preliminary objections to the jurisdiction of an UNCLOS court or tribunal.⁴⁰⁴ Under the Rules of ITLOS, there are two provisions designed to implement these two specific procedures, namely preliminary proceedings and preliminary objections.⁴⁰⁵ Objections to the jurisdiction of ITLOS based on Article 297 may also be dealt with under the more general procedure contained in preliminary objections which covers ‘[a]ny objection to the jurisdiction of the Tribunal or to the admissibility of the application’.⁴⁰⁶

In addition to the affirmed jurisdiction in Article 297, Arctic 292 establishes that the prompt release requirement is subject to a special compulsory dispute settlement procedure.⁴⁰⁷ Where it is alleged that the coastal State has not complied with the relevant provisions for ‘the prompt release of the vessel or its crew upon the posting of a reasonable bond or other financial security, the question of release from detention’ may be submitted to ITLOS unless the parties have agreed otherwise.⁴⁰⁸ Therefore, the right to bring a dispute before a court or tribunal about the detention of a foreign vessel is restricted to the cases expressly provided for in UNCLOS with respect to the enforcement of the living resources and environmental regulations.⁴⁰⁹ The application for release may be made only by or on behalf of the flag State invoking its independent rights under UNCLOS, and the court or tribunal shall deal only with the question of release without prejudice to the merits of any case before the relevant domestic forum.⁴¹⁰ These obligations and proceedings are included to balance the interests of the detaining coastal State against that of the flag State in order to avoid an excessive detention of its vessels.⁴¹¹ Up until 2024, 10 out of 30 contentious cases brought to ITLOS since it was established in 1996 were related to prompt release.⁴¹² These cases have assisted in establishing the procedures and requirements of prompt release, particularly the criteria for assessing the reasonableness of bonds or other financial security, and providing judicial remedies for flag States to avoid unreasonable detention of their vessels.⁴¹³

In sum, disputes concerning the basic navigational freedoms and the protection of the marine environment in the EEZ retain the complete protection of the compulsory dispute settlement procedures provided in Part XV. The main limitations to compulsory jurisdiction are disputes concerning the sovereign right and discretion of the coastal State over living resources and their exercise, which generally do not have a direct bearing on the exercise of the navigational freedoms.

4.6 Modified Freedoms in the Exclusive Economic Zone

Navigational freedoms have been a central concept of the law of the sea for hundreds of years, albeit increasing restrictions have more recently been imposed on them with the expansion of coastal State’s rights.⁴¹⁴ The survey in this chapter illustrates that it is unavoidable that navigational freedoms be curtailed to some degree so as to accommodate coastal States’ sovereign rights and jurisdiction in the EEZ as compared to the traditional high seas freedoms.⁴¹⁵

As far as the economic utilisation of the zone is concerned, particularly with respect to the living resources, the balance of the EEZ generally supports accepting a ‘shift of emphasis in favour of the coastal State’.⁴¹⁶ State practice has also developed to allow coastal State to regulate navigation through their EEZs under certain circumstances based on their interactions with the exercise of the coastal State’s sovereign rights and jurisdiction.⁴¹⁷ This is particularly noticeable with respect to activities that can be considered as ancillary to fishing and navigational regulations developed under the auspice of IMO to protect living resources or the marine environment.

Important safeguards have been introduced to protect the international community’s interest to continue using the EEZ for navigation and overflight. This is highlighted through the limitations to coastal State jurisdiction over foreign vessels, including due process at IMO, generally accepted international rules and standards, the due regard obligation, non-abuse of rights, restricted enforcement powers and other safeguards. Moreover, disputes concerning the exercise of navigational freedoms are subject to compulsory dispute settlement procedures, where both the coastal State and other States may submit their allegation to an UNCLOS court or tribunal.

The international law of the sea is in a period of reassessment and transition with regard to how to maintain a balance between protecting the essential navigational freedoms and the expansion of the rights of coastal States.⁴¹⁸ The fact that the coastal State is given expanded concurrent jurisdiction in relation to foreign vessels means that certain restraints on the navigational freedoms are acceptable, but such development is not enough to entirely alter the jurisdictional framework of the EEZ established under UNCLOS.⁴¹⁹ The less than definitive language of Part V, on the positive side, has given both sides sufficient flexibility to find a dynamic balance.

It is important to acknowledge that the tension between navigational freedoms and coastal interests will continues to exist within the framework of this sui generis regime, with occasional developments trending to advantage either the coastal State or other States. In most cases, the tension can be managed if both sides respect the attribution of rights and duties, and exercise their due regard obligations diligently. It is also important that disputes relating to the basic navigational freedoms are subject to the compulsory dispute settlement procedures. Among other implications, the juridical process could contribute to legal certainty on some crucial provisions to prevent potential conflicts. This is illustrated by the contribution made by ITLOS in making a firm statement that, while the coastal State has the right to regulate bunkering of fishing vessels in its EEZ, the bunkering of non-fishing vessels falls within the freedom of navigation.⁴²⁰

5 Coastal State Rights and the Freedom of the Laying of Submarine Cables and Pipelines

Submarine cables and pipelines laid on the seabed remain the foundation of the global communications network and the offshore energy transportation system that facilitate the increasing globalisation and interconnectedness of the world.¹ International law seeks to strengthen these systems by, inter alia, preserving the freedom to lay submarine cables and pipelines in the exclusive economic zone (EEZ).² Legal issues concerning submarine cables and pipelines are also guided by the two legal doctrines of the allocation and exercise of rights and freedoms in the EEZ. Coastal States are obligated not to impede such freedom relating to the realm of communications and transportation, except for exercising their sovereign rights and other authorised jurisdiction as permitted under international law.³ Both the coastal State and the operating State undertake the mutual obligation of having due regard to each other’s rights and duties when exercising their rights and freedoms with regard to activities related to submarine cables and pipelines. Considering that the coastal State has sovereign rights over activities for the economic exploitation and exploration of the EEZ, and jurisdiction over the use of offshore infrastructures, it can be expected that the primary subjects of the freedom to lay submarine cables and pipelines are those not associated with activities that are under the coastal State’s jurisdiction.

The legal framework of submarine cables and pipelines established in the United Nations Convention on the Law of the Sea (UNCLOS), however, appears to be under increasing pressure in the EEZ.⁴ The challenges are coming from two directions. First, there is a growing trend among some coastal States to exceed the jurisdictional limits recognised by UNCLOS relating to submarine cables and pipelines in their EEZs; second, submarine cables and pipelines are subjected to challenges, as well as undue interference and damage, posed by competing uses of ocean space by both the coastal State and other user States, as well as intentional damages.⁵

This chapter addresses issues relating to the freedom to lay submarine cable and pipelines in the EEZ, as well as mechanisms for their protection. It is divided into five sections. Section 5.1 provides a brief overview of submarine cables and pipelines. Section 5.2 discusses the legal framework on submarine cables and pipelines as laid down in UNCLOS with the aim to clarify the scope of the freedom to lay them in the EEZ. Section 5.3 examines the limitations imposed by law and State practice relating to this freedom, particularly the scope of coastal States’ rights and jurisdiction. Section 5.4 explores the means to protect submarine cables and pipelines provided under international law and as developed by State practice, with an emphasis on the potential active role of the coastal State in complying with the legal framework and regulating competing uses in the EEZ. Section 5.5 discusses the dispute settlement mechanisms that could be used to resolve potential disputes between the coastal State and the operating State.

5.1 Basic Facts about Submarine Cables and Pipelines

By function, there are two main types of submarine cables: submarine fibre-optic cables used to transmit data communications traffic; and submarine power cables used to transmit electricity.⁶ Submarine fibre-optic cables, based on the type of data transmitted, can be further divided into telecommunication cables, scientific research cables and military cables.⁷ Submarine cables are designed for underwater use and are usually laid on or buried under the seabed. The first submarine communication cable – a copper-based telegraph cable – was laid across the English Channel from Dover to Calais in 1851. Subsequently, submarine cable technology evolved through several distinct phases: the submarine telegraph cable in the mid- to late 1800s, the transoceanic telephone cable in the mid-1950s and then the lightweight fibre-optic submarine cable, which has been used since the 1980s.⁸ Modern submarine cables are small in size. The typical deep-ocean fibre-optic cables are 17–22 millimetres (mm) in diameter without protective armour and up to 50 mm with armour; the power cables, comprising solid copper conductor cores, insulation and armouring, are normally between 70 and 150 mm and can be up to 300 mm in diameter.⁹

Broadband communications through submarine fibre-optic cables have become critically important to the world economy and to the security of all States. Today, more than 95 per cent of the world’s international telecommunications are provided by submarine fibre-optic cables, including services such as the internet, e-mail, phones and internet banking, as well as support for offshore platforms, military activities and marine scientific research.¹⁰ As the world continues to consume ever-increasing amounts of data, driven by the demand for cloud services and mobile technology like 5G, the demand for submarine fibre-optic cables will continue to increase.¹¹ Between 1991 and 2021, the submarine telecommunication industry invested approximately 50.7 billion USD to build more than 1.3 million route kilometres (km) of cables, which is an annual average investment of 1.6 billion USD, and 41,600 km of deployed systems.¹² During the COVID-19 pandemic, the sharp increase in demand on remote communications demonstrated beyond doubt the crucial role that submarine telecommunication cables play in connecting the world.¹³

Submarine power cables supply offshore installations and islands with electrical power, and are used as transmission cables to connect power grids between countries.¹⁴ The first underwater power cable was laid across the Isar River in Germany in 1811 and has since been widely used in the North Sea and Baltic Sea, among other regions.¹⁵ The advancement in power cable technology has enabled more ambitious cable projects with increased capacity across great ocean distances and depths between States, including between continents.¹⁶ It is estimated that around 25 per cent of electricity travels to the United Kingdom via power cables, and that figure ‘is rapidly expanding’.¹⁷ In 2021, the United Kingdom and Norway completed the world’s longest existing interconnector, which costs about 2 billion Euros and stretches 720 km across the North Sea.¹⁸ As the global demand for energy interconnection and offshore wind power development continues to increase, there is a potential market for energy transmission of greater distances using submarine power cables.¹⁹

In recent years, as the importance of submarine cables to world economies and States has grown exponentially, damages to them from natural disasters, fishing and shipping activities, as well as intentional harm have increased considerably.²⁰ Major disruptions to the submarine communication network, as exemplified by the 2006 Hengchun subsea earthquake that damaged nine cables and disrupted international communications for up to seven weeks, has demonstrated the need for increased protection of submarine cables and for the rapid repair of damaged cables.²¹ In 2010, the United Nations General Assembly (UNGA) recognised for the first time the critical importance of fibre-optic submarine cables to ‘the global economy and the national security of all States’ and that such cables are susceptible to accidental and intentional damages and called for States to take measures to protect them.²²

Submarine pipelines refers to a pipeline that lies beneath the ocean that is ‘used or intended to be used for the conveyance of gas (including natural gas), petroleum, oil, water, or any other mineral, liquid, or substance; and includes all fittings, pumps, tanks, appurtenances, or appliances used in connection with a pipeline’.²³ Submarine pipelines in the EEZ can be divided into three types: intra-field pipelines that connect a well and the offshore platform, export pipelines that transport the gas and oil from the field to land, and transport pipelines that are not linked with an operating field.²⁴ The first commercial submarine pipeline was constructed in 1954, and was a 250-mm-diameter concrete-coated gas pipeline of 16 km in length, installed at a depth of 4–10 metres in the Gulf of Mexico.²⁵ Modern submarine pipeline inventory comprises rigid (steel) pipelines and flexible flowlines, which vary in diameter from 50 mm to 1,400 mm.²⁶ Submarine transport pipelines are located predominantly around the Mediterranean, the Baltic and North Seas, with many having been built after 2000.²⁷ Pipelines provide a safe and cost-effective method for transporting natural resources, particularly natural gas.²⁸ It is expected that the demand for submarine pipelines will continue to grow, driven by the global consumption of energy and the advancement of technologies to extract natural resources from the ocean floor at greater distances from land.²⁹

Like submarine cables, offshore pipelines are susceptible to both natural and human hazards, including intentional harm.³⁰ Notably, since pipelines are linked to the exploitation and transportation of natural resources, damage to pipelines has the potential to cause serious pollution of the marine environment. Due to these environmental concerns, as well as the linkage to the exploration and exploitation of non-living resources, certain aspects of the laws and regulations with regard to the laying and protecting of pipelines are different from those of submarine cables. The following discussion will begin with a review of the historical development of the legal framework and discuss the scope of the freedom to lay submarine cables and pipelines and their protection under the law of the sea.

5.2 The Legal Framework of Submarine Cables and Pipelines

5.2.1 The Freedom to Lay Submarine Cables and Pipelines

When submarine telegraph cables began to be laid across the seabed during the 1850s, coastal States’ rights were generally limited to the three-mile territorial waters, with the rest of the vast ocean being freely used by all States.³¹ It was in every State’s interest that international communications should be developed as quickly and smoothly as possible.³² As a result, under the general realm of the freedom of the high seas, some States asserted the right to lay submarine cables with minimum resistance from other States.³³

The first international agreement addressing submarine cables was the 1884 Paris Convention for the Protection of Submarine Telegraph Cables (1884 Paris Convention), which ‘applies outside territorial waters to all legally established submarine cables landed on the territories, colonies or possessions of one or more of the High Contracting Parties’.³⁴ It focused mainly on the preservation and protection of submarine cables, including for post-construction purposes such as liability for damage and compensation for anchors and fishing gear sacrificed to avoid damaging the cables.³⁵ The 1884 Paris Convention seems to assume that the cables laid between the contracting parties crossing their territorial waters are ‘legally established’ without explicitly recognising the right of States to freely lay submarine cables on the seabed beneath the high seas.³⁶ The 1884 Paris Convention was later supplemented by a resolution for the guidance of the trawling industry adopted at the London Conference of 1913.³⁷ It is still in force for those States that are not parties to any of the subsequent international conventions. It is worth noting that the 2012 United Nations Secretary-General Report on the Oceans and Law of the Sea expressed the view that the 1884 Paris Convention as amended is ‘relevant’ with regard to ‘the transmission and transport of the renewable energy produced’ at sea.³⁸ It can be interpreted that the principle to protect and preserve telecommunication cables can be extended to include high-voltage power cables and pipelines beneath the high seas, which is consistent with the development of the law.³⁹

The regulation of submarine cables was well developed by the time it became necessary and technically possible to lay pipelines for transporting petroleum or gas products across the ocean in the 1950s.⁴⁰ Their similarities to submarine cables made it inevitable that pipelines should share the same legal regime.⁴¹ Therefore, much of the international law relating to offshore pipelines, including the freedom to lay, penalties and liability for damage, and compensation for sacrificed anchors and fishing gear, has been drawn by analogy from the long-established framework for submarine cables.⁴² The legal frameworks of submarine cables, including power cables, and pipelines were officially combined after widespread support at the International Law Commission (ILC) session in 1956, and the freedom to lay submarine cables and pipelines on the high seas was included in the Draft Articles Concerning the Law of the Sea (ILC Draft Articles).⁴³

Both the 1958 Convention on the High Seas and 1958 Convention on the Continental Self contain provisions on the freedom to lay submarine cables and pipelines and their protection, which were based largely on the ILC Draft Articles.⁴⁴ It was recognised that all States enjoy the freedom to lay submarine cables and pipelines on the seabed of the high seas and, except for taking ‘reasonable measures for the exploration of the continental shelf and the exploitation of its natural resources, the coastal State may not impede the laying or maintenance of submarine cables or pipelines on the continental shelf’.⁴⁵ The ILC in 1951 suggested that the coastal State ‘may not exclude’ the establishment and maintenance of submarine cables by other States, which was changed to ‘may not prevent’ in 1953 and to ‘may not impede’ in 1956, which suggests a positive statement in favour of the freedom to lay submarine cables and pipelines on the continental shelf.⁴⁶

With the establishment of the EEZ in UNCLOS, the freedom to lay submarine cables and pipelines, as one of the high sea freedoms for communications and connectivity, was explicitly preserved in Article 58 as a right of all States. The expression ‘all States’ should be interpreted as including nationals and private entities of the States that are in fact laying submarine cables and pipelines.⁴⁷ Moreover, the term ‘other internationally lawful uses of the sea related to these freedoms’ includes all other activities associated with the operation of such cables and pipelines.⁴⁸ In order to clarify what these associated activities are, it is important to understand the process of how these cables and pipelines are operated. Since these operational procedures are similar between submarine cables and pipelines, they will be described by using the example of telecommunication cable operations.⁴⁹

When planning a cable route, the first step is to undertake a desktop study to design an optimal route based on available data, then a hydrographic ship will conduct a route survey to investigate detailed seabed and environmental conditions before confirming the route.⁵⁰ After the cables and other components are manufactured and tested on land, they will be loaded on a highly specialised cable ship that supports the laying of the cables.⁵¹ In the event of a fault or damage, the submarine cable has to be retrieved from the seabed so that a replacement section can be spliced and re-laid in by the cable ship.⁵² At the end of service, the cable can be reused for other purposes, salvaged or left on the seabed.⁵³ Essentially, the associated activities include all of those spanning across the life cycle of the cable, including the design and survey of routes, manufacture and assembly, laying and installation, inspection, maintenance, repair and salvage.⁵⁴

An important distinction must be made with regard to submarine cables used for marine scientific research, including specific purpose-built systems and those incorporating sensors in or attached to the repeaters of fibre-optic telecommunication cable systems.⁵⁵ States and competent international organisations that intend to lay scientific research cables in the EEZ and on the continental shelf must apply for a permit and comply with the conditions laid down by the coastal State and international law.⁵⁶ The coastal State should, under normal circumstances, grant such consent.⁵⁷ However, the legal distinction becomes blurry regarding the anticipated dual-purpose submarine cables, known as Science Monitoring And Reliable Telecommunications (SMART) cables, an initiative led by a Joint Task Force sponsored by three United Nations agencies.⁵⁸ Recognising the advantages of the global submarine fibre-optic network, SMART cables are expected to integrate sensors into future undersea telecommunications cables, creating the potential for seafloor-based global ocean observing systems for climate monitoring and disaster warning at a modest incremental cost.⁵⁹

The first major SMART project was established in 2021 by Portugal and linked mainland Portugal, the Azores and Madeira, equipping the cable ring with environmental seismic detection.⁶⁰ The use of SMART cables has raised questions concerning the interpretation and application of the legal frameworks of marine scientific research and the laying of submarine cables in the EEZ.⁶¹ The major difference would be whether the laying of SMART cables is subject to the consent of the coastal State or falls under the freedom available to all States. Given the lack of a definition of marine scientific research in UNCLOS, States hold different interpretations of whether ocean observing systems fall under the scope of marine scientific research.⁶² The Argo programme, operated under the Global Ocean Observing System (GOOS), collects information from inside the ocean using a fleet of close to 4,000 active floats that drift with the ocean currents and move up and down between the surface and mid-water level.⁶³ The Argo Guidelines acknowledge that the coastal State must be informed in advance, through appropriate channels, of the deployment of any float that may enter its EEZ, and may request the implementer to withhold the public release of sensitive date obtained within the EEZ.⁶⁴ This is a compromise position that acknowledges neither that the ocean observing Argo programme is a marine scientific research activity nor a high seas freedom. By analogy, the coastal State could request certain notification or permission from the deployment of a SMART cable within its EEZ. The SMART cable does not fit neatly under the rubric of either marine scientific research or freedom to lay submarine cables; its legal status needs to be clarified by subsequent State practice. Nevertheless, it needs to be acknowledged that all scientific cables are subject to other provisions on submarine cables in UNCLOS, particularly those relating to their protection.

When laying submarine cables and pipelines, States must have due regard to those already in position and must not prejudice the possibilities of repairing the existing ones.⁶⁵ In addition, when exercising such freedom, States must have due regard to the rights and duties of other States, particularly the coastal State in the EEZ and on the continental shelf, and must comply with applicable domestic laws and regulations, as well as reasonable measures and other applicable conditions adopted by the coastal State.⁶⁶ Furthermore, the laying of submarine pipelines is subject to the coastal State’s right to take reasonable measures to prevent, reduce and control pollution, and to give consent to the delineation of the course.⁶⁷

5.2.2 The Protection of Submarine Cables and Pipelines

The first international law on submarine cables, the 1884 Paris Convention, was developed to protect submarine telegraph cables.⁶⁸ It requires contracting parties to provide proper safety measures for the track of the cable and its dimensions, to punish those responsible for intentional damage to a cable, to provide for civil liability for accidental damage to a cable, and to provide compensation for ships that suffered a loss in order to avoid injuring a cable.⁶⁹ Notably, the 1884 Paris Convention prescribes obligations, including observing navigational rules and maintaining distance, for other marine activities such as fishing to avoid interfering with the operations of a cable ship and damaging a cable.⁷⁰

Much of the protective provisions in the 1884 Paris Convention were incorporated and extended to the protection to power cables and pipelines in the ILC Draft Articles.⁷¹ However, the ILC Draft Articles omitted the specific obligations for ships to observe navigational rules and to maintain an appropriate distance from the cable ship and buoys. The only reference to other marine activities is an obligation for States to ‘regulate trawling so as to ensure that all the fishing gear used shall be so constructed and maintained as to reduce to the minimum any danger of fouling submarine cables or pipelines’.⁷² The ILC stated that the omission of the matter of collisions was dealt with by the adoption of the 1952 International Convention for the Unification of Certain Rules Relating to Penal Jurisdiction in Matters of Collisions or Other Incidents of Navigation, and further acknowledged that damage to a submarine cable or a pipeline ‘may be regarded as an “incident of navigation”’.⁷³

The Convention on the High Seas inherited the obligations for States, through domestic legislation, to punish those responsible for intentional damage to a cable or pipeline, to provide for civil liability for accidental damage to a cable or pipeline, and to provide compensation for ships that suffer a loss in order to avoid injuring a cable or pipeline.⁷⁴ Albeit, it deleted the specific reference to any marine activities except for obligating States to ensure that ships under their flag comply with navigational rules to ensure safety at sea.⁷⁵

Under UNCLOS, all States are required to protect submarine cables and pipelines as established under the high seas regime that applies to the EEZ by cross-reference in Article 58(2). The protections provided are in line with the three categories as developed in previous conventions, namely intentional damage, accidental damage and indemnity for loss.⁷⁶ It is notable that UNCLOS extends punishable breaking and injury of a submarine cable and pipeline to include ‘conduct calculated or likely to result in such breaking or injury’ that goes beyond results-based damage.⁷⁷ This language was introduced by the informal consultative group on the high seas to address the specific ‘concerns with fishing vessels anchoring to pipelines in the North Sea and with exploration by researchers around cables,’ an issue which remains alive today.⁷⁸

The legal framework of the freedom to lay submarine cables and pipelines along with other associated activities, as well as the obligation to protect them, has been maintained in the EEZ. With increasing demands to accommodate the economic interests of coastal States, as well as the need to effectively protect submarine cables and pipelines, the freedom to lay submarine cables and pipelines is subject to specified limitations in the EEZ compared with on the high seas. In particular, the laying of pipelines is subject to coastal States’ regulation of environmental protection and control of delineation of the course, which brings into doubt its classification as a preserved freedom.⁷⁹

5.3 Limitations on the Freedom to Lay Submarine Cables and Pipelines

5.3.1 Reasonable Measures Taken by the Coastal State

Consistent with the legal doctrine for allocating uses in the EEZ, without impeding the laying or maintenance of submarine cables and pipelines, coastal States may take ‘reasonable measures for the exploration of the continental shelf, the exploitation of its natural resources and the prevention, reduction and control of pollution from pipelines’.⁸⁰ However, it is unspecified as to what ‘reasonable measures’ a coastal State could take and to what extent such measures might affect the freedom of the laying of submarine cables and pipelines.⁸¹

5.3.1.1 Exploration and Exploitation Considerations

Many States have recognised the freedom of all States to lay submarine cables and pipelines in their EEZs by incorporating Article 58(1) in their domestic legislation.⁸² With respect to a coastal State’s right over natural resources and the continental shelf, it can be argued that measures that impose restrictions to avoid damage to fishing grounds or significant marine habitats, or restrictions on the laying of such cables and pipelines in areas designated for the exploitation of oil, gas or other mineral resources, would be considered reasonable.⁸³ Pipelines, particularly those associated with an operational field, are closely linked with the exploration of the seabed and the exploitation of the natural resources that are usually subject to tighter regulations on delineation and pollution by the coastal State. However, there is some inconsistent State practice with regard to activities associated with the use of submarine cables, such as requiring permission for survey, laying, maintenance and repair activities.⁸⁴

One of the reasons for some States to require a permit for cable survey activities is that they consider the survey to be part of marine scientific research activity over which they have jurisdiction. There are no provisions in UNCLOS that define marine scientific research, nor are there provisions specifically governing survey activities in the EEZ or on the continental shelf.⁸⁵ Because of the lack of clarity in UNCLOS, State practice varies with regard to survey activities in the EEZ. Some States consider survey activities as part of the freedoms confirmed in Article 58(1), while others argue that such activities are a form of marine scientific research and therefore subject to the coastal State’s consent as provided for in Articles 56(1)(b)(ii) and 246 of UNCLOS.⁸⁶ For example, China has claimed jurisdiction over surveys in the EEZ, whereby foreign organisations or individuals that wish to undertake surveying and mapping must obtain approval from local authorities and observe relevant Chinese laws and regulations.⁸⁷

It goes beyond the scope of this chapter to discuss the historical and contemporary debates on the definition and scope of marine scientific research and survey.⁸⁸ Rather it follows the legal doctrine of allocating uses in the EEZ by examining the purpose of the cable route survey. As discussed earlier, the survey is an integral part of the operations of submarine cables given its essential role in determining the delineation of the route and design of installation procedures and protection strategies.⁸⁹ Hence, the cable route survey is closely linked with the need to facilitate international communications rather than direct economic benefit to the coastal State. Even if some States argue that a survey in general is a form of applied science,⁹⁰ the cable route survey could be exempted from coastal State jurisdiction because it is an ancillary activity, a lawful use of sea associated with the laying of submarine cables.

Another reason for some States to require a permit for cable survey activities is the concern that data obtained through the survey might be relevant to the exploitation of the seabed and its natural resources.⁹¹ It is important to understand what data is collected during the survey to distinguish a cable route survey from a survey for natural resources. The main purpose of the cable route survey is to understand the hydrographic and geologic conditions of the pertinent region before laying a submarine cable. The survey ship usually employs a range of technologies to collect data along a narrow strip of seabed, typically ranging from 500 to 1,000 metres in shallow water and three times the water depth in deep water.⁹² The cable route survey usually contains data components of bathymetry, seabed imagery, high-resolution seismic reflection profiling, seabed soils, submarine geology, electronic burial and plow assessment, and oceanography.⁹³ From a technical perspective, a cable route survey uses similar techniques and collects some of the same data as in surveys for exploration of natural resources.⁹⁴ However, the limited scanned area and data, both in terms of the width of the area and the depth of the seabed, determine that the data collected during a cable route survey is not sufficient to discover, evaluate or exploit economic resources on the seabed.⁹⁵ In other words, the cable route survey is not designed to perform systematic investigations into and study of the marine environment, but is merely to establish facts and provide information to confirm or amend the preliminary data for cable installation.

In addition, some coastal States, notably China,⁹⁶ India⁹⁷ and Seychelles,⁹⁸ require permits for foreign vessels or nationals to undertake submarine cable laying, maintenance and repair activities in their EEZs.⁹⁹ The permission requirements for operational activities vary from State to State and range from straightforward application to highly complex with different associated conditions. These conditions includes a combination of annual fees, security checks for crew, a list of the nationalities of the crew, registration documents for the vessel, requirements for an on-board security officer or observer, pre-approved locations and a copy of the survey data and reports.¹⁰⁰ These conditions of permission can cause significant delays in cable operations and, in the case of repair activities, may lead to multiple cable failures and increased loss of revenue.¹⁰¹ The situation will be even more complicated if the fault location is uncertain or if it spans the EEZ of more than one State or is in a disputed sea area.¹⁰² If the attribution of jurisdiction over survey activity in the EEZ is unclear, the requirement of attaining permission to conduct the laying, maintenance or repair work on submarine cables is inconsistent with UNCLOS. Article 79(2) specifically states that ‘the coastal State may not impede the laying or maintenance of such cables’ (emphasis added). Additionally, the 2011 UNGA Resolution on the Oceans and the Law of the Sea clearly recognised the importance for States to act in conformity with UNCLOS with regard to the maintenance, including the repair, of submarine cables.¹⁰³

Considering that the EEZ is for all intents and purposes a resource zone, the ‘reasonable measures’ taken by the coastal States must be closely linked to the exploration of the continental shelf or the exploitation of its natural resources and must be proportionate.¹⁰⁴ A measure would be unreasonable if it rendered the laying of a submarine cable or pipeline impossible or if it disproportionately increased the cost of laying them or is of a discriminatory character.¹⁰⁵ The practice of some State to require a permit for cable route survey, laying, maintenance and repair can hardly be justified as a reasonable measure or the execution of the due regard obligation. Alternatively, in order to reduce tension, the operating State may, as fulfilling its due regard obligation in good faith, provide the coastal State with notification of the purpose, route, timing and work plan of the cable operation activities.¹⁰⁶ The coastal State may require permits as a reasonable measure for pipeline operations in a direct link to its right over pollution control measures and the delineation of pipeline courses.

5.3.1.2 Environmental Considerations

Compared to the regime applicable to submarine cables, pipelines are subject to coastal States’ jurisdiction over pollution control in the EEZ. This jurisdiction was only introduced during the negotiation of UNCLOS, as it did not exist in the 1958 Geneva Conventions.¹⁰⁷ Article 79(2) of UNCLOS specifies that the freedom of laying pipelines be subject to a coastal States’ right to take ‘reasonable measures … for the prevention, reduction and control of pollution from pipelines’. This also gives the coastal State jurisdiction over transiting pipelines, often owned and operated by a foreign entity, that do not land on its coast or connect to its offshore operational fields. The exercise of this jurisdiction should be consistent with the rules established in Article 56 and Part XII Articles 208 and 214 with regard to pollution in connection with seabed activities that are subject to national jurisdiction, where such measures ‘shall be no less effective than international rules, standards and recommended practices and procedures’.¹⁰⁸ It is important to point out that, unlike the international shipping regulations that have been developed under the auspice of the International Maritime Organization (IMO), States have not adopted any binding international rules and regulations for the use and operation of submarine pipelines.¹⁰⁹

Coastal States must ensure that these pollution prevention and control measures meet the requirements of ‘reasonableness’ and the ‘due regard’ obligation in such a way as not to impede the laying or maintenance of pipelines. The German legislation on the continental shelf offers an example of such reasonable measures. Other States, through private entities, that intend to install and operate a transiting pipeline must seek authorisation from the German government, which may only be denied ‘where there is reason to fear a danger to human life or health or to material property, or a threat to overriding public interests, which cannot be prevented or removed by means of conditions or restrictions’.¹¹⁰ It further defines ‘a threat to overriding public interests’ to include activities hindering or impairing German rights on the continental shelf, causing pollution of the sea or threatening the security of Germany.¹¹¹ Other than these specified considerations, the German authority may not withhold its permission for the laying of pipelines on its continental shelf.

The environmental considerations for issuing permission for the laying of pipelines may also be affected by geopolitical situations and the broader economic context. The first Nord Stream twin pipeline system provides Europe with approximately 55 billion cubic metres of natural gas per year for at least 50 years from Russia through two 1,224-km offshore pipelines passing by the territorial sea and/or EEZ of Russia, Finland, Sweden, Denmark and Germany.¹¹² The operators provided an extensive 2,585-page environmental impact assessment (EIA) report to the relevant coastal States on the environmental impacts of the construction, operation and decommissioning of the pipelines justifying that the design and routeing of the pipelines are safe and environmentally sound.¹¹³ It took the operators five years after the announcement of the project to secure all the permits to begin construction in 2010, and the two pipelines have been in operation since 2011 and 2012, respectively.¹¹⁴ A new Nord Stream 2 project, with two more pipelines that possess the same capacity, was proposed to run roughly parallel to the existing Nord Stream pipeline, and construction was completed by September 2021 at an estimated cost of 11 billion Euros.¹¹⁵ The operators went through a similar process to obtain permits from the five coastal States and consulted with the other coastal States of the Baltic Sea.¹¹⁶ However, despite meeting the legal requirements of obtaining permits from the coastal States to build the Nord Stream 2 pipeline, the project has been put on hold due to the change in geopolitics, most notably the relationship between Europe and Russia.¹¹⁷

Article 79(2) of UNCLOS limits a coastal State’s right to taking reasonable measures for pollution control to submarine pipelines. The omission of submarine cables, however, cannot be interpreted such that they are completely exempted from environmental protection considerations. When exercising the freedom to lay submarine cables, States must have due regard to the coastal State’s rights and duties in the EEZ, including its rights to conserve and manage natural resources, and its jurisdiction and obligation to protect and preserve the marine environment.¹¹⁸ The laying and use of submarine cables inevitably interact with the marine environment to varying degrees at different phases. For example, route surveys employ instruments that produce acoustic pulses that might affect marine mammals; the laying of cables requires mechanical plowing into the seabed for burial in shallow waters; cables laid on the surface of the seabed will interact with water, sediment and marine biota; and electromagnetic fields generated by power cables may have an impact on the marine environment.¹¹⁹ Existing research and studies are not conclusive on the environmental impacts, particularly the cumulative impacts, that cables have on the marine environment through their lifespan. Nonetheless, the cable industry has lobbied that any threats are not detrimental to the marine environment.¹²⁰

The operating State has the primary responsibility to address the environmental impacts of the laying and use of submarine cables. It has the general obligation to protect and preserve the marine environment, among which is to ensure that activities under its jurisdiction or control do not cause damage by pollution to other States and their environment, to monitor and to assess the environmental impact.¹²¹ However, the decision to monitor the risk of pollution and to conduct an EIA is at the discretion of the operating State, such that only when it has ‘reasonable grounds for believing’ that the planned activities ‘may cause substantial pollution of or significant and harmful changes to the marine environment’, it is obligated to conduct an EIA.¹²² The coastal State has limited ground to challenge or influence the operating State’s assessment and monitoring of cable operations, particularly for transiting cables in the EEZ.

The balance of environmental concerns over submarine cables will fall back on the mutual due regard obligations. The fulfilment of the due regard obligations should be determinate by the circumstances and by the nature of those rights.¹²³ It could be argued that if the proposed cable operation occurs within an existing specially protected area or a critical marine habitat, the operating State should consult the coastal State in good faith in the laying of cables to minimise the risks to the marine environment. The coastal State, on the other hand, could arguably introduce restrictive measures on cable operations in such special marine areas in the EEZ.¹²⁴ For example, the United Kingdom sought to control the routing of a new cable system from entering a special conservation area, and the United States restricted access to a designated critical habitat area to protect the leatherback sea turtle.¹²⁵

The right of the coastal State to adopt and apply these reasonable measures must meet the requirements imposed by other provisions of UNCLOS. First, these measures must be ‘reasonable’ as they must be kept within the limits of respect for the law and implemented impartially so as to ‘not infringe or result in any unjustifiable interference with’ the freedom of other States to lay submarine cables and pipelines.¹²⁶ Second, the coastal State must recognise such freedom and must have due regard for their interests to exercise this freedom.¹²⁷ Third, the coastal State must exercise its rights in a manner so as not to ‘constitute an abuse of right’.¹²⁸ Hence, these measures should not amount to a right for a coastal State to require a permit or payment as a condition for other States to conduct operational activities related to the submarine cables in its EEZ. Where there is a dispute on the scope and application of measures adopted by the coastal State, the coastal State and the operating State should consult with one another in good faith to resolve their dispute before seeking settlement through other peaceful means.¹²⁹

5.3.2 Delineation of the Course of Submarine Cables and Pipelines

Careful route planning is essential for effective laying and protection of submarine cables and pipelines. Planning must take into account all current and proposed marine activities, especially fishing and the exploitation of natural resources, and all relevant natural and cultural seabed features in the pertinent region in order to determine the most appropriate route.¹³⁰ The coastal State’s jurisdiction over the delineation of the course of submarine cables and pipelines are different, with the latter falling under its jurisdiction.

The coastal State’s jurisdiction to regulate the delineation of the course of pipelines was only introduced in Article 79(3) of UNCLOS.¹³¹ This authorisation also gives coastal States rights over the delineation of transiting pipelines that do not land on their coast or connected with any offshore platforms under their jurisdiction. The extended coastal State jurisdiction was introduced by States that were in favour of restricted freedom to lay pipelines on their continental shelf, notably China and Denmark.¹³² The Danish proposal provided that, considering the significant difference between the laying of submarine cables and the laying of pipelines, the laying of pipelines across the continental shelf/EEZ should be subject to the coastal State’s consent.¹³³ This Danish position was used in the negotiations with Norway relating to the delineation of a transiting gas pipeline across its continental shelf in the 1970s. The Ekofisk-Emden pipeline carries natural gas from the Ekofisk field on the Norwegian continental shelf in the North Sea to the operations plant at Emden in Germany, of which approximately 50 km passes through the Danish continental shelf.¹³⁴ Denmark granted permission for the construction and operation of such a pipeline on the condition that the pipeline was buried to a depth of one metre along the entire length.¹³⁵ Moreover, Denmark established a safety zone of 100 metres on each side of the pipeline in which fishing and anchoring were prohibited.¹³⁶

As far as submarine cables are concerned, the intention of granting coastal States jurisdiction over the delineation of the laying of their course was implied in the ILC Draft Articles. Commenting on a coastal State’s ‘right to take reasonable measures for the exploration of the continental shelf and the exploitation of its natural resources’, the ILC stated that Article 61(2) was added to ‘make it quite clear that the coastal State is obliged to permit the laying of cables and pipelines … but that it may impose conditions as to the route to be followed, in order to prevent undue interference with the exploitation of the natural resources of the seabed and subsoil’.¹³⁷ The comments to Article 70, which only dealt with submarine cables, repeated the statement that the coastal State ‘may impose conditions concerning the route to be followed’.¹³⁸ These comments clearly illustrate that the coastal State’s right to take ‘reasonable measures’ could include imposing conditions on the route of submarine cables.

During the negotiation of the Convention on the Continental Self, Venezuela stated that it was ‘prepared to recognize the right of States to lay cables on the continental shelf, but considered that prior consultation with the coastal State and its consent were essential’.¹³⁹ Further,

if the coastal State had the right to take reasonable measures for the exploitation of the continental shelf, it obviously had the right to make regulations on the laying of submarine cables on the continental shelf. In that way, the coastal State could protect the interests of States if a conflict arose regarding exploitation and the laying of submarine cables.¹⁴⁰

Venezuela’s proposal of inserting the phrase ‘and to its right to make regulations … concerning the routes to be followed,’ however, was rejected by 22 votes to 18, with 15 abstentions.¹⁴¹ Therefore, the Convention on the Continental Self only recognised the coastal State’s right to take ‘reasonable measures for the exploration of the continental shelf and the exploitation of its natural resources’ without specifying delineation of the course of submarine cables and pipelines.¹⁴² The negotiation records show that the delegations had different understandings of whether or not the right to take ‘reasonable measures’ included adopting regulations concerning cable and pipeline routes.¹⁴³

Before the Third United Nations Conference on the Law of the Sea, China proposed to the Sea-Bed Committee that ‘[t]he delineation of the course for laying submarine cables and pipelines on the continental shelf by a foreign State is subject to the consent of the coastal State’.¹⁴⁴ However, this proposal was never incorporated into the negotiation text.¹⁴⁵ Article 79 of UNCLOS was adopted based on the text drafted by the Evensen Group that the right to take ‘reasonable measures’ provided the coastal State with an explicit right to give consent to the delineation of the course of pipelines.¹⁴⁶ Nevertheless, even without explicit authorisation under UNCLOS, subsequent national legislation of Cabo Verde,¹⁴⁷ China,¹⁴⁸ Guyana,¹⁴⁹ Grenada,¹⁵⁰ India,¹⁵¹ Malaysia,¹⁵² Mauritius,¹⁵³ Pakistan,¹⁵⁴ Poland,¹⁵⁵ Portugal,¹⁵⁶ Saint Kitts and Nevis,¹⁵⁷ Saint Lucia,¹⁵⁸ São Tomé and Príncipe,¹⁵⁹ Syria,¹⁶⁰ Russia¹⁶¹ and Trinidad and Tobago¹⁶² extended the coastal State’s right to require consent to the delineation of the course for the laying of submarine cables in their EEZ.¹⁶³

Article 79(3) indicates that the delineation of the course for the submarine cables in the EEZ is not subject to the consent of the coastal State. However, the interpretation of ‘reasonable measures’ included in Article 79(2) seems to provide that the coastal State can place certain requirements on the laying of submarine cables, albeit such measures may not equal the requirement of consent for the delineation of the course. Coastal States may arguably require notification or pre-consultation regarding the proposed cable route, particularly in relation to its rights over natural resources and the protection of the marine environment, and as per the reciprocal due regard obligation of the operating State. It is also in the best interest of the cable operator to obtain all relevant information of the pertinent region to avoid potential conflicts with the coastal State’s existing and planned exploration and exploitation activities when designing the route for a submarine cable. In case of a conflict – for example, where the route of a proposed submarine cable would interfere with the potential exploitation of an oil field – the coastal State and the operating State should consult with each other in good faith. It is arguable that the outcome would likely be a re-routeing of the cable to give priority to the sovereign rights of the coastal State, but the coastal State should not rely on potential interference with its rights in an abusive manner.¹⁶⁴

5.3.3 Regulations of Specific Submarine Cables and Pipelines

Article 79(4) of UNCLOS gives coastal States additional rights and jurisdiction over two specific types of submarine cables and pipelines laid in its EEZ. The coastal State has the right to fix any conditions necessary relating to the laying of submarine cables and pipelines that enter its territory or territorial sea, and it has jurisdiction over those used in connection with the exploration and exploitation of the continental shelf and its natural resources, as well as the operation of artificial islands, installations and structures.¹⁶⁵

With respect to cables and pipelines that enter the territory or territorial sea, the first unclarified issue is where these conditions apply. If a submarine cable or pipeline were to be constructed between different States, or from offshore infrastructure to the coast, it would typically transit the EEZ or continental shelf, where the coastal State has sovereign rights, to the territorial sea or territory, where it has sovereignty.¹⁶⁶ Since a coastal State’s rights over submarine cables and pipelines within its territory and territorial sea has been explicitly articulated in other provisions of UNCLOS, the authorisation in Article 79(4) is not merely repetitive.¹⁶⁷ The terminology used to supplement the coastal State’s right is ‘conditions’, which imply much less authority than ‘sovereignty’. The conditions are attachments to the coastal State’s right to issue permits to lay cables and pipelines in the territorial sea. In addition, the fact that this authorisation is placed in Article 79 under the continental shelf regime suggests that it applies to this ocean area and within the EEZ.¹⁶⁸ Therefore, the additional conditions imposed by coastal States would apply to the sections, either the entire section or selected segment closer to the outer limit of the territorial sea, of the submarine cables and pipelines that lie on its continental shelf or within the EEZ. After the submarine cables and pipelines physically enter the territory or territorial sea of the coastal State, the more rigorous rules, which are a concomitant of sovereignty, would apply.

The second issue is the scope of these conditions. A guiding point could be that the scope is reasonable and proportionate, whereas the conditions themselves should be linked to protecting the sovereignty of the coastal State in the territorial sea and should not render the laying of cables and pipelines impractical. These conditions arguably may include pre-consultation on the delineation of the course for the laying of cables, burial requirements or other protective measures, and requirements to minimise interference with other marine activities. It is not clear whether such conditions may include levies or other charges. The Spanish Supreme Court, for example, decided that the Spanish Ministry of the Environment was not entitled to impose a fee on submarine telecommunication cables beyond Spain’s territorial sea.¹⁶⁹

With respect to the second category of cables and pipelines, UNCLOS confirms that the coastal State’s jurisdiction over these infrastructures extends to the connected cables, notably power cables, and pipelines.¹⁷⁰ First, this would make such submarine cables subject to the coastal State’s right to adopt and enforce laws and regulations ‘to prevent, reduce and control pollution of the marine environment arising from or in connection with seabed activities subject to their jurisdiction and from artificial islands, installations and structures under their jurisdiction’.¹⁷¹ Second, it could be argued that the coastal State has the right to lay, authorise and regulate the laying, operation, maintenance and repair of such cables and pipelines connected to infrastructure, as well as regulate relevant matters on customs, fiscal, health, safety and immigration.¹⁷²

The wording in Article 79(4) seems to suggest that the specific cables and pipelines are in supporting positions to infrastructure that is under the jurisdiction of the coastal State. It does not, however, include infrastructure that can be constructed or used to support the operation of cables and pipelines. It has been acknowledged that submarine cables and pipelines per se are not considered installations and structures that are under the jurisdiction of the coastal State,¹⁷³ but the operating State may arguably construct or use artificial islands, installations or structures to support their laying, operation or protection, or have a standalone purpose such as the establishment of underwater database installations.¹⁷⁴ Under Article 60, the coastal State has ‘exclusive right to construct and to authorize and regulate the construction, operation and use of’ artificial islands and installations and structures for economic purposes and those may interfere with the exercise of its rights. However, it is not clear whether it is the coastal State or the operating State that has to decide whether such use is for economic purposes or may interfere with the exercise of the coastal State’s rights. While subject to debate and different State practices, given its potential interference with the marine environment and the jurisdiction of the coastal State, the operating State should be obliged to consult, if not apply for permission, to use permanently established infrastructure associated with submarine cables and pipelines.

Article 79(4) provides the coastal State with additional competence beyond the ‘right to take reasonable measures’ over these specific cables and pipelines.¹⁷⁵ The intention is to make it clear that the obligation of coastal States not to impede the laying or maintenance of submarine cables and pipelines on the continental shelf or in the EEZ will not affect the more intensified rights generated from their sovereignty over their territory and territorial sea and sovereign rights over the EEZ and the continental shelf.

5.3.4 Due Regard Obligation and Other Limitations

A general limitation on the freedom to lay submarine cables and pipelines is the ‘due regard’ obligation found in the regimes of the EEZ, the continental shelf and the high seas.¹⁷⁶ The operating State, when laying submarine cables and pipelines in the EEZ and on the continental shelf, is required to have due regard to both the coastal State and other user States as regards their rights and duties in the same marine area. Although the term ‘due regard’, together with ‘reasonable regard’, is repeatedly used in UNCLOS, there is no agreed definition of it.¹⁷⁷ As discussed in Chapter 3, due regard indicates not only a duty to refrain from activities that unreasonably interfere with the exercise of other internationally lawful uses of the same area but also a positive duty to consider the actual rights and interests involved in any given circumstance and aims to achieve a balance between parties.¹⁷⁸

As discussed earlier, State practice is not consistent concerning, inter alia, the interpretation and application of the law on whether the coastal State may regulate cable survey and other operational activities, the delineation of cable routes and the environmental consideration of submarine cables. Based on the due regard obligation, the operating State is expected to take into consideration the rights and jurisdiction of the coastal State as specified in Articles 56 and 79 while laying and operating submarine cables. It could be argued that the operating State should provide the coastal State with information through notification or consultation about the planned activities to avoid misunderstandings or conflicts. However, this obligation by no means gives the coastal State a right to require a permit. It would be for a court or tribunal to decide whether the operating State has fulfilled the due regard obligation in case of a dispute.

In addition, when laying submarine cables or pipelines, the operating State must have due regard to cables or pipelines already in position, and must not prejudice the possibilities of repairing existing ones.¹⁷⁹ This obligation aims to resolve potential conflicts between proposed cables and pipelines and those already in position by giving priority to the latter. This is strengthened by the general obligation contained in Articles 78(2) and 87(2), where the freedom to lay submarine cables and pipelines must be exercised with due regard for further interests of other States and their internationally lawful uses of the sea area.¹⁸⁰

A less-addressed issue relating to the laying of submarine cables and pipelines is the end of service arrangement. The design and commercial life of a submarine fibre-optic cable system is typically twenty to twenty-five years, and between forty and sixty-five years for power cables, with the possibility of further life extensions.¹⁸¹ For pipelines associated with an operational platform, the commercial lifespan is between twenty and thirty years.¹⁸² There is no general obligation under the law of the sea to remove cables and pipelines that are abandoned, decommissioned or out of service.¹⁸³ Those that are connected with the use of installations or structures should be removed to ensure the safety of navigation, while having due regard to fishing, the protection of the marine environment and the rights and duties of other States.¹⁸⁴

In practice, it is the cable or pipeline owners who decide on removal, unless the coastal State provides a valid jurisdictional basis for requiring such removal of the sections laid in its EEZ.¹⁸⁵ The jurisdictional basis can be found under the coastal State’s right to take reasonable measures and the specific jurisdiction over certain cables or pipelines.¹⁸⁶ If the cables and pipelines in question have the potential to interfere with the coastal State’s right to explore or exploit the continental shelf and its natural resources, or pose a threat to the marine environment, the coastal State may take measures to request such removal. The coastal State may also require the removal of cables and pipelines that enter its territorial sea and territory, are constructed or used in connection with the exploration and exploitation of the continental shelf and its resources, or with the operation of artificial islands, installations and structures under its jurisdiction. Moreover, the coastal State may make the removal of abandoned or disused pipelines a condition when giving consent to the delineation of the course of such pipelines.¹⁸⁷ However, the coastal State may at times find it less straightforward to establish such a jurisdictional basis, particularly with regard to submarine telecommunication cables and transiting pipelines.¹⁸⁸

There has been some practice of changing decommissioned telecommunication cables into scientific cables for various research purposes, or recovering for repurposing and recycling purposes.¹⁸⁹ These cables would normally change owners as they cease to be part of the telecommunications industry and are subsequently removed from charts or marked as out of service. Cable owners may also choose to salvage out-of-service cables for their scrap value. The International Cable Protection Committee (ICPC) recommends cable owners, when deciding whether or not to remove out-of-use cables, consider any potential effects on the safety of navigation or other marine uses, the effects on the marine environment, and the costs, benefits and technical feasibility associated with the removal of such cables.¹⁹⁰ Between 2013 and 2023, around 113 submarine telecommunications cable systems with a combined length of 257,000 kilometres of cable have been taken out of service.¹⁹¹ It has been estimated that 85 cable systems are expected to reach their end of service by 2028 with an additional 53 expected by 2032.¹⁹²

The current practice of decommissioning submarine pipelines is often associated with the decommissioning of offshore platforms. The United Kingdom, for example, requires a comprehensive assessment of all relevant factors, including decommissioning options, before making a decision on a case-by-case basis for any removal or partial removal of a pipeline on the continental shelf.¹⁹³ Although estimates vary, it is likely that between 2013 and 2022, it will cost more than 10 billion Pounds to decommission the end-of-life offshore oil and gas platforms on the continental shelf of the United Kingdom.¹⁹⁴ Among the common practices in the United Kingdom, trenched and buried pipelines are often decommissioned in situ whereas surface laid pipelines are returned to shore for reuse, recycling or disposal.¹⁹⁵

There are different interpretations of whether pure abandonment of submarine cables and pipelines, where no new use is intended, could be considered dumping. Under UNCLOS, ‘deliberate disposal’ of ‘man-made structures at sea’ fall within the definition of ‘dumping’.¹⁹⁶ The 1996 London Protocol further clarified this definition whereby the abandonment or toppling at site of ‘man-made structures at sea’ such as submarine cables and pipelines for ‘the sole purpose of deliberate disposal’ is considered dumping.¹⁹⁷ Such dumping could be permitted should the State party consider that this is consistent with the objective and obligation to protect and preserve the marine environment.¹⁹⁸ The regional practice of the North-East Atlantic through the OSPAR Convention presents another side of the argument.¹⁹⁹ Dumping is defined to include ‘any deliberate disposal in the maritime area of … offshore pipelines’, but it does not include ‘the leaving wholly or partly in place of a … disused offshore pipeline, provided that any such operation takes place in accordance with any relevant provision of the Convention and with other relevant international law’.²⁰⁰ Industry practice has shown a tendency to not classify the abandonment of cables or pipelines as dumping to avoid regulation by the coastal State.²⁰¹ It is worth noting that a cable or pipeline that is decommissioned or out of service does not change ownership rights, responsibilities and obligations under international law.²⁰² Hence, the owners remain liable for claims by coastal States for pollution from pipelines and claims for sacrificed fishing gear or anchors in avoiding injury to a cable or pipeline.²⁰³ It can also be argued that the owner should make the information on abandoned or out-of-service cables and pipelines available to other marine users and mark them on nautical charts.²⁰⁴ The limited examples of decommissioning cables and pipelines during the past few decades have not been sufficient to establish any customary practices.²⁰⁵

The freedom to lay submarine cables and pipelines has been expressly preserved in the EEZ. The exercise of such a freedom is, however, subject to a number of explicit limitations, most notably from the coastal State. The limitations imposed by the coastal State must meet its due regard obligation and must not amount to any infringement or unjustifiable interference with the laying of such cables and pipelines. Nevertheless, as State practice indicates, the growing interest of coastal States in preserving natural resources and protecting the marine environment in the EEZ, particularly by some unilateral excessive claims for permits for cable operations, have, to varying degrees, eroded this preserved freedom.

5.4 Protecting Submarine Cables and Pipelines

The fact that the EEZ is a multifunctional zone means that the freedom to lay submarine cables and pipelines needs to co-exist with other uses of the same area.²⁰⁶ With the increase in competing uses in the EEZ, submarine cables and pipelines often have been interfered with or damaged by other marine uses, particularly in water depths less than 1,000 metres. For example, the laying, maintenance and repairing activities by the cable-laying ship often are interrupted by fishing vessels or other marine activities, and cables and pipelines are also at risk of being damaged by ship anchoring, fish trawling, dredging, dumping, sand extraction, oil or gas exploitation and other offshore activities.²⁰⁷ Natural effects, including submarine earthquakes, density currents and waves, tsunami, hurricanes and volcanic activities, may also dislocate, break or bury cables or pipelines.²⁰⁸ Moreover, there are growing concerns that critical submarine cables and pipelines might be subject to security threats from intentional harm for varying purposes.²⁰⁹

Unlike the territorial sea, where the coastal State has the right to adopt laws and regulations to protect submarine cables and pipelines,²¹⁰ the coastal State has neither the right nor the obligation to protect those laid in its EEZ beyond regulating activities under its jurisdiction, particularly with regard to transiting cables and pipelines. Nevertheless, there is an emerging trend for all States to treat fibre-optic submarine cables as ‘critical communications infrastructure’ that deserves stronger protection and to take effective measures to promote their safety and security in accordance with international law.²¹¹

5.4.1 Protecting Operational Activities Ancillary to the Laying of Submarine Cables and Pipelines

The surveying, laying, maintenance and repair of submarine cables and pipelines require a ship to physically operate on site. These specialised ships are often limited in speed and are at risk of being interfered with by other marine activities, especially fishing.²¹² Neither the 1958 Geneva Conventions nor UNCLOS have any provisions offering special protection to these ships, such as authorising the use of floating safety zones around ships engaged in cable or pipeline operations or requiring other vessels to keep a minimum distance away from such ships. Nevertheless, all vessels must obey the international navigation rules and regulations to enhance maritime safety, including ‘the use of signals, the maintenance of communications and the prevention of collisions’.²¹³

Insofar as submarine cables are concerned, the 1884 Paris Convention contains requirements for other vessels to maintain a minimum distance from cable ships or buoys. Under Article V, cable ships that are engaged in laying or repair operations are required to exhibit signals that are agreed among contracting member States, while ‘other vessels which see them, or are able to see them, shall withdraw to or keep beyond a distance of one nautical mile at least from the ship in question, so as not to interfere with her operations’ and must keep the fishing gear and nets at the same distance. Article VI further states that vessels which see, or are able to see, the buoys showing the position of a cable that is being laid, is broken or out of order, must keep a minimum distance of one-quarter nautical mile and must keep their fishing nets and gear at the same distance. However, the 1884 Paris Convention is limited in efficacy because it only has thirty-six parties, and there is no clear evidence showing that its rules have gained the status of customary international law binding on all States.²¹⁴

With respect to the international rules on navigation, the 1972 Convention on the International Regulations for Preventing Collisions at Sea (COLREG) is the main international agreement with 164 contracting States representing approximately 98.91 per cent of the gross tonnage of the world’s merchant fleet.²¹⁵ These rules are applicable to ‘all vessels upon the high seas and in all waters connected therewith navigable by seagoing vessels’ regardless of its size, including the EEZ.²¹⁶ COLREG provides that ‘a vessel engaged in laying, servicing, or picking up a … submarine cable or pipeline’ is considered a ‘vessel restricted in her ability to manoeuvre … and is therefore unable to keep out of the way of another vessel’.²¹⁷ A vessel that is restricted in her ability to manoeuvre is required to exhibit specific visual and sound signals to warn other vessels so they are aware of its operations.²¹⁸ Other vessels, including power-driven vessels, sailing vessels, and fishing vessels, must ‘keep out of the way’ of the vessel restricted in its ability to manoeuvre.²¹⁹ In contrast to the 1884 Pairs Convention, which specifies the minimum distance between other ships and the cable ship, COLREG does not provide clarification on the meaning of ‘keep out of the way’.

The practical issue is that, even though vessels engaged in cable or pipeline operations strictly comply with the COLREG rules, other vessels often ignore them, especially when the operations are taking place near a fishing ground.²²⁰ The United States and Marshall Islands, supported by other States, unsuccessfully attempted to introduce specific distance requirements for the phrase ‘keep out of the way’ in the relevant rules of COLREG.²²¹ The main opposing argument for introducing specific distance requirements is that as a goal-based standard, the responsibility for interpretation and application of the requirement to ‘keep out of the way’ is a matter for a mariner to decide under the circumstances, and a strict distance requirement might not be practical in narrow waterways.²²² When encountering a ship engaged in cable or pipeline operations, mariners may choose the most effective manner to keep out of the way by shifting course, keeping a distance or reducing speed. The basic requirement is to ensure that the cable or pipeline ship is not interrupted, and hence reduce the chance of a collision.

The flag State has the primary duty to take all necessary measures for ships flying its flag to ensure safety at sea, including ‘the use of signals, the maintenance of communications and the prevention of collisions’.²²³ Since most marine activities in the EEZ, particularly fishing, involve coastal vessels, it is important for the coastal State to enforce navigation rules with due diligence. Such measures taken by the flag State include enforcing penal jurisdiction in matters of collision or any other incident of navigation.²²⁴ The phrase ‘incident of navigation’ has been interpreted as including ‘damage to a submarine telegraph, telephone or high-voltage power cable or to a pipeline’.²²⁵ This jurisdiction over navigation rules is complementary to the jurisdiction provided to States regarding the breaking or injury to submarine cables and pipelines discussed below.

5.4.2 Protecting Submarine Cables and Pipelines from Competing Uses

Submarine cables and pipelines are exposed to natural and human hazards in all water depths. Generally speaking, submarine cables are more vulnerable than pipelines. The breaking strength of modern submarine cables of 17–50 mm in diameter ranges from only a few tonnes to more than 40 tonnes.²²⁶ In contrast, a pipeline of up to 550 mm in diameter will not be damaged by trawling activities, even without burial.²²⁷ However, managing the risks related to these threats is equally important for maintaining the integrity and efficiency of submarine cable and pipeline systems. On average, there are approximately 200 submarine cable faults worldwide every year, and the average cost of a single repair is between 1 million and more than 3 million USD, and the loss of revenue and costs of using alternative satellite communication are often higher.²²⁸ Although less frequent, interruptions to offshore pipelines pose serious threats to the marine environment if the damage leads to a rupture. There are various ways to protect submarine cables and pipelines from damage, ranging from calculated route planning, to burial and other measures to increase the safety of the cables and pipelines, to providing incentive measures to avoid damage, and to promoting collaboration among different maritime users.²²⁹

5.4.2.1 Burial of Submarine Cables and Pipelines

Submarine cables and pipelines have the potential to be interrupted by other marine activities operated on or near the seabed. Approximately 65–75 per cent of all submarine cable failures recorded between 1959 and 2000 were caused by fishing and shipping activities within water depths shallower than 200 metres.²³⁰ A study of pipeline incidents in the North Sea between 1971 and 2001 showed that among 65 incidents reported that resulted in a leakage, 17 per cent were related to anchoring and 14 per cent were caused by trawling.²³¹

In order to reduce potential conflicts with other marine activities, submarine cables and pipelines are often buried to a certain depth (from 1 metre and exceptionally up to 10 metres), according to the type of cable and pipeline involved and the seabed conditions, in areas up to approximately 2,000 metres water depth.²³² However, even with the latest technology, there are areas of the seabed where burial is either impractical or impossible, for example in rugged rocky areas or zones of high sediment mobility. The cable industry has introduced other forms of protection including the use of covers of rocks, concrete mattresses and steel or plastic conduits where practical and environmentally sound.²³³

5.4.2.2 Designation of Protection Zones

In order to minimise the threats of human activities to submarine cables and pipelines, some coastal States impose restrictions on the conduct of activities in areas where cables and pipelines are at risk. The proposal to establish ‘safety zones’ that preclude anchoring and trawling within 250 metres of each side of a submarine pipeline was rejected by the ILC in 1956, as it was considered impractical and ‘would constitute a further encroachment on the freedom of navigation and fishing and that it is consequently unjustified’.²³⁴ Instead, the ILC Draft Articles required States to take the necessary measures to punish deliberate and negligent breaking or injuring of submarine cables and pipelines beneath the high seas,²³⁵ a provision which was later included in both the Convention on the High Seas and UNCLOS.

Several States have taken the initiative to establish protective zones in which certain activities are prohibited or restricted to protect submarine cables or pipelines.²³⁶ New Zealand, for example, has claimed the right to establish protected areas in the EEZ to regulate potentially harmful activities to submarine cables and pipelines.²³⁷ Fishing operations and anchoring are generally prohibited within these protected areas, and both the owner and the master of a ship who commit an offence are liable for monetary penalties.²³⁸ However, this legislation has limited effects on foreign nationals or foreign ships in the EEZ, since it only applies to a person on board or by means of a New Zealand ship, and by a New Zealand citizen on board or by means of a foreign ship.²³⁹ Australia separated submarine cables from pipelines and adopted protection zones for the former.²⁴⁰ In 2007, Australia declared three submarine cable protection zones, two off the coast of Sydney and one off the coast of Perth, which stretch up to 50 NM into its EEZ.²⁴¹ Within these zones, certain activities are prohibited, including bottom trawling, demersal gill net fishing, sand mining and dumping, and other activities are restricted, such as line fishing and constructing or maintaining navigational aids and installations.²⁴² Engaging in conduct that contravenes a prohibition or restriction in the protected zone is a punishable offence, subject to monetary penalties and imprisonment.²⁴³ Similar to the New Zealand law, the application of the Australian legislation, despite being applicable to activities within the EEZ, exempts foreign nationals and foreign ships.²⁴⁴

While international law provides a sufficient basis for cable protection zones within the territorial sea,²⁴⁵ there is no equivalent clear norm with respect to either the EEZ or the continental shelf, and certainly not for the high seas. The establishment of protection zones of submarine cables and pipelines within their EEZs by Australia and New Zealand is not without controversy.²⁴⁶ However, since both States established these protection zones for cables or pipelines landed on their shore, and restricted their application to activities done by nationals and national ships in the EEZ, it should not impede the exercise of the freedom to lay submarine cables and pipelines by other States. These unilateral actions may be seen as good practice to protect submarine cables and pipelines from competing uses, and can rectify a legal gap in their protection in the EEZ.

The coastal State may adopt navigation rules that apply to foreign ships in certain parts of the EEZ if it can justify them within the current legal framework. For example, through IMO, the coastal State may adopt ships’ routeing systems, in particular precautionary areas and no-anchoring areas, within its EEZ if it can justify that damage to submarine cables and pipelines poses a danger to the safety of navigation or causes pollution to the marine environment.²⁴⁷ When discussing the flag State’s jurisdiction over collisions on the high seas, the ILC recognised that ‘damage to a submarine … cable or to a pipeline may be regarded as an “incident of navigation”’.²⁴⁸ Hence, the coastal State may argue that the existence of submarine cables and pipelines in converging areas forms an unfavourable condition to navigation, where certain marine activities need to be carried out with great caution or need to be avoided completely.²⁴⁹ In the case of pipelines, the intention of protecting the marine environment could be another reason for the coastal State to propose a routeing system.²⁵⁰ The implementation of navigation rules in specific risk areas could reduce potential damage to submarine cables and pipelines in the EEZ.

5.4.2.3 Collaboration between Marine Users

Another measure that could promote effective protection of submarine cables and pipelines is to enhance collaboration between industries and between operators within the same industry. This requires coordination in planning and routing and cooperation in the protection, maintenance and repair of cables and pipelines in areas of multiple marine uses. Moreover, there is an appeal for States to adopt laws and regulations, as well as establish a dedicated government agency or department, to coordinate all competing marine uses to minimise external interruptions of submarine cables and pipelines.

The operating State undertakes the obligation to have ‘due regard to cables or pipelines already in position,’ particularly to the possibility to repair them, when laying new ones.²⁵¹ Under Article 114 of UNCLOS, all States are further obligated to adopt laws and regulations to provide that the owners of a submarine cable or pipeline who, in laying or repairing their cable or pipeline, break or injure an existing one are liable for the cost of the repairs. The combination of the obligation to avoid damages and to provide civil liability by the owner fills the gap to cover both accidental and incidental damage to existing cables and pipelines. However, the owner’s liability is limited to bearing ‘the cost of the repairs’ that excludes the cost of alternative uses and any profit loss incurred as a result of the damage, or the cost associated with restoration of the marine environment.²⁵² This liability was first included in the 1884 Paris Convention, which provides that where ‘the owner of a cable who, on laying or repairing his own cable, breaks or injures another cable, must bear the cost of repairing the breakage or injury’.²⁵³ This phrase seemed to be broadened when it was considered by the ILC, which obliged the owner who caused such damage to ‘bear the cost,’ implying the cost of all collateral damage.²⁵⁴ The phrase was changed back to ‘the cost of repairing’ in the Convention on the High Seas based on a Danish proposal²⁵⁵ and was maintained in UNCLOS. Nevertheless, the cable or pipeline owner responsible for such a damage may be liable for economic or other consequential loss under the tort law of the relevant State.²⁵⁶

Moreover, Article 115 of UNCLOS requires all States to adopt laws and regulations concerning the indemnification by the owner of a submarine cable or pipeline to the owner of a ship who was forced to sacrifice an anchor, a net or any other fishing gear in order to avoid injuring a submarine cable or pipeline. The claim for indemnity is conditioned on the shipowner taking ‘all reasonable precautionary measures beforehand’ and being able to prove that they have suffered a loss to avoid injury to the cable or pipeline.²⁵⁷ This is in line with the ILC’s statement that ‘compensation cannot be claimed if there has been any negligence on the part of the ship’.²⁵⁸ Guaranteeing the indemnification of the shipowner’s sacrifice encourages the shipowner to choose to protect submarine cables and pipelines in case of an emergency.

UNCLOS does not specify what precautionary measures need to be taken or what procedures are required to make the indemnity claim, but such a claim should be balanced against the obligation of all ships to avoid damaging submarine cables and pipelines in the first place.²⁵⁹ In the case of submarine cables and fishing, the ICPC has published detailed guidance on how to avoid catching a cable, including improving communication between the cable industry and fishers.²⁶⁰ The premise for fishers to avoid catching a cable is to know where it is and to act with caution to prevent disrupting it.²⁶¹ Hence, access to updated submarine cable and pipeline charts and electronic data services, which rely on the information provided by the cable and pipeline industries, is essential. Claim procedures, including the standard of proof, are to be decided by the applicable municipal law system.²⁶² The procedure provided in the 1884 Paris Convention could provide some guidance:

[I]n order to establish a claim to such compensation, a statement, supported by the evidence of the crew, should, whenever possible, be drawn up immediately after the occurrence; and the master must, within 24 hours after his return to or next putting into port, make a declaration to the proper authorities.²⁶³

Increasingly, coastal States are using marine spatial planning as a tool to proactively plan activities in maritime waters under national jurisdiction to coordinate the expanding range of conflicts of maritime uses.²⁶⁴ For example, Germany developed maritime spatial plans for its EEZ in the North Sea and the Baltic Sea in 2009 that were revised in 2021 following an extensive process that included national and international consultations.²⁶⁵ The German plans contain provisions aimed at coordinating the individual uses and functions of shipping, the exploitation of resources, laying of submarine cables and pipelines, marine scientific research, wind power production, fisheries and mariculture, as well as protection of the marine environment.²⁶⁶ Similar State practice can be observed in other European countries in their surrounding seas,²⁶⁷ in Canada regarding the area of the Scotian Shelf²⁶⁸ and in South Africa, which divides its EEZ into western, eastern and southern marine areas and the Prince Edward Islands, for which statutory marine spatial plans are to be developed.²⁶⁹

It also worth emphasising the importance of international cooperation in protecting submarine cables and pipelines. The submarine cable industry, through the ICPC, has for more than half a century provided a forum for government administrations and private entities to work on relevant technical, legal and environmental issues.²⁷⁰ There is also emerging regional cooperation in Europe to promote marine safety and protect cable installations²⁷¹ and in Southeast Asia to promote good practices to reduce conflicts between the coastal State and the operating State, and to protect submarine cables and pipelines from competing uses and intentional damage.²⁷²

In addition to the protective measures taken by the industry, States can play an active role in protecting submarine cables and pipelines from competing uses. This includes implementing legislation to provide clear legal obligations for operators to avoid damage to submarine cables and pipelines, to impose civil liabilities on those who have caused accidental and incidental damages, and to offer indemnification to those operators who suffered a loss to avoid damaging such cables and pipelines. It is worth noting that since most of the competing uses in the EEZ are conducted by locals, it is particularly important for the coastal State to diligently exercise these rights over its nationals and ships flying its flag.

5.4.3 Protecting Submarine Cables and Pipelines from Intentional Damage

All States are required to adopt laws and regulations to ensure that it is a punishable offence for their ships or nationals that wilfully, or through culpable negligence, break or injure a submarine cable or pipeline beneath the high seas or in the EEZ.²⁷³ The history of this obligation in UNCLOS Article 113 can be traced to Article II of the 1884 Paris Convention, which formed the basis for Article 27 of the Convention on the High Seas. UNCLOS extended the scope of States’ jurisdiction to include conduct that is ‘calculated or likely to result in’ the breaking or injury of a submarine cable or pipeline, excluding actions taken by the persons who were acting merely with the purpose of saving their lives or their ship, after having taken all necessary precautions to avoid such break or injury.²⁷⁴ As a result, the intention or attempt to break or injure a cable or pipeline associated with such conduct is also a punishable offence, even without the conduct resulting in an actual break or injury.²⁷⁵

Both acts that result in damage and are likely to result in damage are punishable only when performed ‘wilfully or through culpable negligence’.²⁷⁶ However, Article 113 does not specify which party bears the burden of proof. According to general criminal procedures, the prosecution is responsible for proving all the essential elements to justify the crime charged.²⁷⁷ Therefore, the ship or person involved will not be punished unless the prosecution can prove, prima facie, that their acts were performed with wilful intent or culpable negligence. The interpretation of what constitutes wilful intent or negligence is largely a decision of domestic courts, and State practices vary. Under Australian law, for instance, it is an offence ‘if the person engages in conduct, and the conduct results in damages to a submarine cable’, but the penalty is lighter when ‘the person is negligent as to the fact that the conduct results in that damage’.²⁷⁸ This legislation disregards whether or not the person was ‘wilful’ when engaged in such conduct but focuses on actual damage, and the offender is subjected to a lighter punishment if proven ‘negligent’. It also excludes conduct that is ‘calculated or likely to result in’ such damages.

Article 113 of UNCLOS in effect obligates States to adopt legislation for an offence by their nationals, including ships flying their flags, for activities that may have occurred outside of their territorial jurisdiction.²⁷⁹ By limiting the jurisdictional basis to nationality and registration, Article 113 did not create universal jurisdiction over such an offence.²⁸⁰ However, it is not difficult to anticipate the insufficiency of the implementation of such jurisdiction. States are reluctant to adopt legislation for offences committed outside their territories, and for those that have legislated, enforcement is very limited.²⁸¹ This situation is even more worrying when it comes to States with open registration that lack both the willingness and capacity to enforce such legislation for the large fleet. It worth noting that the 1884 Paris Convention provided State parties a right of visit over other parties’ vessels suspected of offences of the Convention and obliged such States to report offences to the State has jurisdiction.²⁸² This police power was omitted from both the Convention on the High Seas and UNCLOS.²⁸³

The coastal State has the same obligation to punish intentional damage to submarine cables and pipelines by its nationals and ships flying its flag. However, it has no straightforward jurisdiction over damage to such cables and pipelines caused by foreign nationals or ships in its EEZ. Coastal State jurisdiction over suspected foreign ships may only be established on its sovereign rights or specific jurisdiction claimed in the EEZ. For instance, if the damaged cable or pipeline was ‘used in connection with the exploration of its continental shelf or exploitation of its resources’, the coastal State could exercise jurisdiction over the foreign ship that caused such damage.²⁸⁴ Further, if the damage resulted in pollution from a pipeline, the coastal State may assert jurisdiction over the foreign ship for the protection and preservation of the marine environment.²⁸⁵ However, such claims could be challenged, since coastal State jurisdiction over foreign vessels in the EEZ is limited to ‘pollution from vessels’.²⁸⁶ Pollution caused by a collision between a vessel and a pipeline, which could be considered incident of navigation, would, prima facie, remain under the jurisdiction of the flag State, and the coastal State may only assert concurrent jurisdiction.

There has been increasing discussion about the security issues associated with intentional damage to submarine cables and pipelines.²⁸⁷ Submarine communication cables are susceptible to being physically tapped, for instance by purpose-built submarines, whereas the data transmitted through them can be collected, altered or jammed.²⁸⁸ In response to an incident of stolen cable and an optical amplifier by Vietnamese vessels in 2007, arguments were made to treat the incident as piracy under international law because it was an ‘act of depredation’ committed for private end by a private ships against ‘property in a place outside the jurisdiction of any State’.²⁸⁹ In September 2022, three out of the four pipelines of the Nord Stream and Nord Stream 2 were torn open by explosives and released over 220,000 tonnes of methane into the atmosphere.²⁹⁰ The damaged pipelines were located on the seabed of the EEZs of Denmark and Sweden where both States have limited jurisdiction over these transiting pipelines.²⁹¹ While Denmark, Germany, Sweden and Russia all initiated investigations over the alleged acts of sabotage against the Nord Stream pipelines, with Russia been isolated from the collaboration among the other three States, it remains unclear how to categorise such intentional damage under international law.²⁹² There has been discussion on whether or not the act of attacking submarine communication cables or pipelines amounts to an armed attack such that the affected State could invoke the right of self-defence to use force.²⁹³ Moreover, it is questionable whether the attack on this infrastructure could be treated as an international crime, including maritime terrorism, if it was done for the purpose of intimidating a population, or compelling a government or an international organisation to act in a certain way or to abstain from any act.²⁹⁴ With respect to submarine cables, the Global Maritime Crime Programme lead by the United Nations Office on Drugs and Crime has been developing a framework to assist States in ensuring the protection and resilience of submarine cables within their maritime zones.²⁹⁵ Another potential channel to address crimes against submarine cables or pipelines is to incorporate such offences under the international agreements on the suppression of unlawful acts against the safety of maritime navigation, or fixed platforms located on the continental shelf.²⁹⁶

The laying and operation of submarine cables and pipelines need to be protected even at the expense of putting certain limitations on other marine uses. The need for protection is expected to continue, because most nations are increasingly dependent on submarine fibre-optic cables for international communications and on pipelines for transporting offshore and inland resources. Although UNCLOS requires States to develop domestic legislation related to the protection of submarine cables and pipelines, many States still have not done so.²⁹⁷ It is particularly important for the coastal State to adopt and enforce effective measures because its nationals and ships conduct most of the competing uses in the EEZ.

5.5 Resolving Disputes Concerning the Laying of Submarine Cables and Pipelines

As one of the preserved freedoms in the EEZ, it is essential that disputes on the interpretation and application of provisions on the laying of submarine cables and pipelines be subject to the compulsory dispute settlement procedures under UNCLOS.²⁹⁸ When it is alleged that either a coastal State or the operating State has acted in contravention of the provisions relating to their respective rights and duties in relation to the laying of submarine cables and pipelines, the other party may initiate the dispute settlement procedures where the parties have reached no agreement.²⁹⁹

The practical issue is that, under the international law of the sea, States are the right holders that normally delegate the exercise of the freedom to lay submarine cables and pipelines to corporations or other private entities through the link of nationality or registration.³⁰⁰ These corporations and private entities are precluded from using the dispute settlement procedures under UNCLOS, which are only open to State parties.³⁰¹ Hence, the difficulty lies both in how to identify which State has a legitimate stand and in how to provide it with sufficient incentives to initiate procedures on behalf of these private actors. For example, international submarine cables and pipelines are usually owned by a large consortium of companies incorporated in different States, and the suppliers, operators and end users could be located in many different countries and territories.³⁰² Determining which States may represent the cable or pipeline for a particular case can be challenging. As demonstrated in the above-mentioned Nord Stream incidents, both pipeline systems are operated by an independent consortium, based in Switzerland, of multiple companies, among which the Russian State–owned Gazprom Group company holds over 50 per cent of the shares.³⁰³ Nearly two years after the incidents, there is no public report indicating that Switzerland, as the State where the consortiums are registered, has taken any action.³⁰⁴

The challenge of lack of State-level representation is particularly evident in the case of submarine fibre-optic cables. Take, for example, the case where the coastal State requires a permit for repair work of a transiting fibre-optic cable that is located in its EEZ, which prima facie is inconsistent with the rights and jurisdiction of the coastal State over such cables. Under normal practice, the cable owner, a large consortium, would charter a specialised cable ship to undertake the repair work, whose flag State is usually not the same as the national State of the cable owner. It may be more straightforward if the flag State of the cable ship could challenge the coastal State’s requirement of permission. However, the flag State of the cable ship often does not have the political will or interest to challenge a coastal State on behalf of the cable owner.³⁰⁵ The cable owner, which often consists of multiple telecom or content companies from different States and territories that co-own the cable system’s capacity and operate the cable system according to a commercial agreement, can hardly avail itself of a representing State for the dispute settlement procedures.³⁰⁶ Submarine cables are, unlike ships, neither registered under any flag nor operated under the auspice of any international organisation or agency.³⁰⁷ Should States be willing to establish a formal registration process for international fibre-optic cables, it would provide legal clarity as to which State may represent the cable operator’s and owner’s interest when a coastal State has acted in contravention of the provisions concerning the freedom of the laying of submarine cables in the EEZ.

Apart from disputes directly related to the coastal State’s conduct, submarine cables and pipelines may face challenges from competing uses and intentional damage. These cases are often resolved at the domestic level through procedures between the two private parties over commercial claims, or through procedures brought by a government agency to prosecute intentional damage. Only when such cases exhaust local remedies and do not resolve the dispute may the claimant State bring an international claim over its counterpart under UNCLOS or other relevant fora.

The parties to the dispute have the right to decide which procedure applies to the settlement of their dispute.³⁰⁸ Both parties could accept the same procedure, or go to arbitration if they cannot agree on the procedure.³⁰⁹ A court or arbitral tribunal would clarify the interpretation and application of a number of provisions, including the scope of the reasonable measures and conditions that could be taken by the coastal State, and the due regard obligation that could be invoked by both parties under various scenarios. The court or tribunal, when finding jurisdiction prima facie, may prescribe appropriate provisional measures to preserve the respective rights of the parties or to prevent serious harm to the marine environment.³¹⁰ As of 2024, no State has pursued dispute settlement procedures under UNCLOS relating to the freedom of the laying of submarine cables or pipelines.

5.6 Conclusion

With the increasing demand for submarine cables and pipelines worldwide, it is critically important to preserve the freedom of the laying of such cables and pipelines and to protect their operation and use. The exercise of such freedom in the EEZ, however, is under growing pressure to accommodate the coastal State’s sovereign rights and jurisdiction, as well the challenges and threats posed by competing uses and intentional damage.

In terms of the legal framework, the freedom to lay submarine cables, in theory, has been well preserved in the EEZ, with limited interference from the coastal State in taking reasonable measures for the exploration and exploitation of the seabed and its natural resources. It is notable that submarine pipelines are subject to additional regulation by the coastal State compared to submarine cables. The delineation of the course of a pipeline is subject to the coastal State’s consent, and the laying of pipeline is subject to its jurisdiction over pollution control. This is mainly because the use of pipelines is often associated with the exploitation of natural resources or offshore infrastructures, and it is well known that materials transported by pipelines have the potential to cause harm to the marine environment. Hence, the freedom to lay pipelines in the EEZ is further restricted compared with submarine cables to give priority to the sovereign rights and jurisdiction granted to the coastal State.

In terms of State practice, some coastal States have made excessive claims over activities related to the laying of submarine cables and pipelines in the EEZ, particularly with regard to communication cables. Many of these excessive claims were based on the coastal State’s broad interpretation of its sovereign rights and jurisdiction. States exercising the freedom to lay submarine cables and pipelines are required under UNCLOS to give due regard to the coastal State’s rights and to comply with their laws, but this does not give the coastal State the right to decide how such an obligation is undertaken or to adopt laws and regulations contrary to UNCLOS. The excessive coastal State claims, particularly with regard to permits for cable operations and the delineation of cable routes, may not only erode the freedom to lay submarine cables but may also interfere with the freedom of navigation. This constitutes a threat to the delicate balance of rights and duties in the EEZ. A possible solution is for these coastal States to retreat from excessive claims that are inconsistent with UNCLOS and to act with due regard to other State’s rights and duties. The operating State could facilitate the transition of such coastal State practice by voluntarily providing information and consultation to ensure that their operations will not interfere with the coastal State’s exercise of its sovereign rights or jurisdiction.

It needs to be emphasised that the coastal State can play an important role in protecting the safety and security of submarine cables and pipelines in the EEZ. In addition to the obligation to have due regard to the exercise of such freedom, the coastal State has an interest in protecting these cables and pipelines in light of their importance to global communications and energy security, particularly if such cables and pipelines are landed on its coast. The coastal State should actively fulfil its duty to adopt the laws and regulations necessary to punish those who damage a cable or pipeline wilfully or through culpable negligence, impose civil liability for damages caused by non-criminal acts, and provide indemnity for loss incurred to avoid injury to the cable or pipeline. Moreover, the coastal State should diligently regulate competing uses by its nationals and ships flying its flag, and promote cooperation between different marine uses to avoid unnecessary interference with submarine cables and pipelines.