(a) General Considerations
Under Article 56(1)(b) of the LOSC, the coastal State possesses jurisdiction over matters other than the exploration and exploitation of marine natural resources, namely (i) the establishment and use of artificial islands, installations and structures, (ii) marine scientific research, and (iii) the protection and preservation of the marine environment. The coastal State also has other rights and duties provided for in this Convention (Article 56(1)(c)). The coastal State jurisdiction with regard to these matters requires some comments.
Concerning the coastal State jurisdiction over artificial islands, Article 60 stipulates:
- In the exclusive economic zone, the coastal State shall have the exclusive right to construct and to authorize and regulate the construction, operation and use of:
(a) artificial islands;
(b) installations and structures for the purposes provided for in article 56 and other economic purposes;
(c) installations and structures which may interfere with the exercise of the rights of the coastal State in the zone. - The coastal State shall have exclusive jurisdiction over such artificial islands, installations and structures, including jurisdiction with regard to customs, fiscal, health, safety and immigration laws and regulations.
Under Article 60(1), the coastal State’s exclusive right with regard to artificial islands is not bound to any specific purpose, while installations and structures must serve for specific purposes provided for in Article 60(1)(b) and (c).
At the same time, the rights of the coastal State on this matter are subject to certain obligations. Under Article 60(3), due notice must be given of the construction of such artificial islands, installations and structures, and permanent means for giving warning of their presence must be maintained and any installations or structures which are abandoned or disused shall be removed to ensure safety of navigation, taking into account any generally accepted international standards established in this regard by the competent international organisation, i.e. the IMO. In this regard, the IMO adopted a set of guidelines and standards. Despite the use of the word ‘shall’, it can be considered that there is no absolute duty to entirely remove abandoned or disused installations and structures under
Article 60(3). In fact, the last sentence of this provision stipulates:
Appropriate publicity shall be given to the depth, position and dimensions of any installations or structures not entirely removed.
Under Article 60(7), the coastal State may not establish artificial islands, installations and structures and the safety zones around them ‘where interference may be caused to the use of recognized sea lanes essential to international navigation’.
It is clear that the coastal State has exclusive jurisdiction, including both legislative and enforcement jurisdiction, over installations and structures for economic purposes by virtue of Article 60. On the other hand, a question arises of whether or not the coastal State also has the jurisdiction to authorise and regulate the construction and use of installations and structures for non-economic purposes, such as military purposes. State practice is not uniform on this particular matter. When ratifying the LOSC, Brazil, Cape Verde and Uruguay made declarations claiming that the coastal State has the exclusive right to authorise and regulate the construction and use of all kinds of installations and structures, without exception, whatever their nature or purpose. By contrast, when ratifying the LOSC, Germany, Italy, the Netherlands and the United Kingdom declared that the coastal State enjoys the right to authorise, construct, operate and use only those installations and structures which have economic purposes. While this is a debatable issue, the preferable view appears to be that a dispute falls within the scope of Article 59 because the LOSC does not explicitly attribute rights or jurisdiction in this matter to a coastal State or to other States.
As noted, Article 56(1)(b)(ii) of the LOSC makes clear that the coastal State has jurisdiction with regard to marine scientific research in the EEZ. In relation to this, Article 246(1) stipulates:
Coastal States, in the exercise of their jurisdiction, have the right to regulate, authorize and conduct marine scientific research in their exclusive economic zone and on their continental shelf in accordance with the relevant provisions of this Convention.
Marine scientific research in the EEZ and on the continental shelf is to be conducted with the consent of the coastal State in conformity with Article 246(2).
It is clear from Article 56(1)(b)(iii) that in the EEZ, the coastal State has legislative and enforcement jurisdiction with regard to the protection and preservation of the marine environment. Further to this, Articles 210(1) and 211(5) provide legislative jurisdiction of the coastal State concerning the regulation of dumping and vessel-source pollution. Moreover, Articles 210(2) and 220 contain enforcement jurisdiction of the coastal State with regard to the regulation of dumping and ship-borne pollution.
(b) Legality of Bunkering in the EEZ of Third States
A particular issue which arises in this context concerns the legality of bunkering in an EEZ of a foreign State. The LOSC contains no explicit provision on this subject. This issue was, for the first time in the ITLOS jurisprudence, raised in the 1999 M/V ‘Saiga’ (No. 2) case between Saint Vincent and the Grenadines and Guinea. The M/V ‘Saiga’ is a tank vessel flying the flag of Saint Vincent and the Grenadines. On 28 October 1997, the Saiga, awaiting the arrival of fishing vessels to which it was to supply gas oil, was arrested by Guinean authorities in its EEZ on the ground that the Saiga violated Law L/94/007 by importing gas oil into the customs radius of Guinea. Criminal proceedings were subsequently instituted by the Guinean authorities against the Master of the Saiga, and the Tribunal of First Instance in Conakry, the Guinean capital, found the Master guilty as charged and imposed on him a fine. A central question in this case was whether Guinea was entitled to apply its customs law in its EEZ. In this regard, ITLOS held that, while the coastal State has jurisdiction to apply customs laws and regulations in respect of artificial islands, installations and structures in the EEZ pursuant to Article 60(2) of the LOSC, the Convention does not empower a coastal State to apply its customs laws in respect of any other parts of the EEZ not mentioned in that provision.
A similar dispute was subsequently raised in the 2014 M/V Virginia G case between Panama and Guinea-Bissau. On 20 August 2009, the M/V Virginia G, an oil tanker flying the flag of Panama, supplied gas oil to fishing vessels flying the flag of Mauritania in the EEZ of Guinea-Bissau. On 21 August 2009, the M/V Virginia G was arrested by the Guinea-Bissau authorities and the tanker, along with its gear, equipment and products on board, was confiscated. Panama instituted arbitral proceedings against Guinea-Bissau pursuant to Annex VII of the LOSC in a dispute concerning the M/V Virginia G. Later the dispute was transferred to ITLOS. The central question to be addressed by ITLOS was whether Guinea-Bissau, in the exercise of its sovereign rights in respect of the conservation and management of natural resources in its EEZ, had the competence to regulate bunkering of foreign vessels fishing in this zone. In this regard, ITLOS took the view that the regulation by a coastal State of the 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 LOSC, read together with Article 62(4) of the Convention. According to ITLOS, the coastal State’s jurisdiction over bunkering of foreign vessels fishing in its EEZ derives from the sovereign rights of that State to explore, exploit, conserve and manage natural resources. ITLOS also added that the coastal State does not have such competence with regard to other bunkering activities, unless otherwise determined in accordance with the LOSC.