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1. Introduction
The United Nations Convention on the Law of the Sea (UNCLOS or the Convention)1 contains an implicit requirement that states proclaim an exclusive economic zone (EEZ) in order to establish the zone and their entitlement to it. Despite this requirement, the law and legal literature have paid little regard to the legal nature of the act of proclamation. Even sources of legal scholarship that refer to ‘proclamation’ usually consider the act as a given, without questioning its legal nature or apparatus.
This article seeks to shed some light on the ignored aspect of the entitlement of coastal states to an EEZ and its acquisition. Its main argument is that there is a lacuna in international law, both in UNCLOS and in international adjudication, regarding the definition of proclamation of an EEZ, its legal status and its apparatus, which until now international adjudication has either ignored or misinterpreted. A further argument, which also relates to the lack of interest in the act, is that state practice with regard to proclamation has developed largely without reference to international judicial decisions.
Arguably this has implications for the rights and obligations of coastal states in this zone, and for international adjudication in respect of the zone. For example, ignoring the requirement of proclamation may raise doubts as to the competence of judicial institutions to settle disputes over the zone.
It could be claimed that this lacuna means that judicial bodies do not regard the proclamation as necessary and that the requirement of a proclamation is a dead letter. However, the requirement continues to exist and remain relevant through state practice and scholarship. It maintains validity as customary law, which is more explicit than UNCLOS, as will be elaborated below. Other sources of international law also suggest it is still relevant today. Raising awareness of the lacuna might serve future parties to international maritime disputes.
For the purpose of the article, the term ‘entitlement’ refers to the competence to claim title to maritime zones and the right to exercise jurisdiction in these zones.2 In some cases ‘entitlement’ requires prior action in establishing the zone, as in the case of the EEZ, before exercising jurisdiction; in other cases there is no need for such prior action.3