Freedom of navigation in the exclusive economic zone: the EU approach

Van Thuy Tran

Under the United Nations Convention on the Law of the Sea adopted in 1982 (UNCLOS),
an exclusive economic zone (EEZ), by way of express proclamation, may extend up to 200 nautical
miles from the baselines used to measure the breadth of the territorial sea (TS). It is situated
between TS and the high seas (see the following example map).

Under the EEZ regime, all States, whether coastal or land-locked, enjoy,
inter alia, freedom of navigation (FN), and other internationally lawful uses of the
sea related to FN, such as those associated with the operation of ships not
incompatible with UNCLOS. However, when exercising FN, States must pay due
regard to the rights and duties of the Coastal States, and shall comply with the laws
and regulations adopted by the coastal States in accordance with the provisions of
UNCLOS and other rules of international law.
In practice, FN in EEZ has, however, been facing a number of challenges,
which include, among others, differences in unilateral interpretation and application
of the relevant provisions of UNCLOS; tendency of coastal States encroaching their
rights and jurisdiction over marine environmental protection, particularly prevention
of vessel-source pollution; unresolved issue of bunkering in EEZ, namely whether it
is an lawful use of the seas associated with the operation of the ships or not; piracy;
maritime and territorial disputes. Those challenges are somehow adversely affecting
FN, particularly in EEZ.
At the EU level, on a proposal of the European Commission, the European
Parliament and the Council adopted the Directive 2005/35/EC on ship-source
pollution and on the introduction of (criminal) penalties for infringements, on 7
September 2005. The instrument applies to discharges of polluting substances from
any ship, regardless of its flag, (with the exception of war ships, naval auxiliary or
non-commercial government ships), in internal waters, the TS, straits used for
international navigation subject to the regime of transit passage, the EEZ, and the
high seas. Infringements committed with intent, recklessly or as a result of serious
negligence are regarded as criminal offences. In international law, it has clearly
gone too far when it provides criminal penalties imposed on the vessels navigating
beyond the outer limit of the territorial seas of the member states.
As a consequence, on the one hand, FN in EEZ enjoyed by vessels of other
States may be highly vulnerable or unreasonably/unnecessarily impeded once the
said instrument is implemented, and thus possibly hurting the image of the EU as a
promoter of the rule of law (international law). On the other hand, the EU and its
member states may face legal proceedings if the affected countries were to decide to
sue them for having allegedly breached their international obligations as States
Parties to UNCLOS or MARPOL.