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c. The exercise by other States of the freedoms of navigation and overflight should not interfere with the rights of the coastal State with regard to its establishment and use of artificial islands, installations and structures in its EEZ.
This statement is deceptively straight forward. The rights of the coastal State regarding artificial islands, installations and structures in the EEZ are provided by Article 60.
Article 60 (Artificial islands, installations and structures in the exclusive economic zone).
"1. 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.
2. 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.
3. Due notice must be given of the construction of such artificial islands, installations or structures, and permanent means for giving warning of their presence must be maintained. 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 organization. Such removal shall also have due regard to fishing, the protection of the marine environment and the rights and duties of other States. Appropriate publicity shall be given to the depth, position and dimensions of any installations or structures not entirely removed.
4. A coastal State may, where necessary, establish reasonable safety zones around such artificial islands, installations and structures in which it may take appropriate measures to ensure the safety both of navigation and of the artificial islands, installations and structures.
5. The breadth of the safety zones shall be determined by the coastal State, taking into account applicable international standards. Such zones shall be designed to ensure that they are reasonably related to the nature and function of the artificial islands, installations or structures, and shall not exceed a distance of 500 meters around them, measured from each point of their outer edge, except as authorized by generally accepted international standards or as recommended by the competent international organization. Due notice shall be given of the extent of safety zones.
6. All ships must respect these safety zones and shall comply with generally accepted international standards regarding navigation in the vicinity of artificial islands, installations, structures and safety zones.
7. Artificial islands, installations and structures and 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.
8. Artificial islands, installations and structures do not possess the status of islands. They have no territorial sea of their own, and their presence does not affect the delimitation of the territorial sea, the exclusive economic zone or the continental shelf."
However, there may be disagreement regarding military installations and structures102. At an early stage of UNCLOS III, a number of delegations, particularly those from Africa, made proposals calling for the coastal State's exclusive right to authorize the construction of all artificial islands, installations and structures for any purpose, and particularly military installations and devices, in the EEZ. These proposals were not adopted, and the Evensen Group text, which is close to the final text of Article 60, emerged in 1975. A further effort by Brazil, Peru and Uruguay to reverse the trend failed103.
Upon signature and/or ratification of the Convention, Brazil, Cape Verde and Uruguay made declarations recording their understanding that the coastal State has the exclusive right to authorize and regulate the construction and use of all types of installations and structures for any purpose104. Several States, including Guyana, Honduras, India, Indonesia, Maldives, Mauritius, Myanmar, Pakistan, Philippines, Seychelles, Sri Lanka, Vanuatu and Yemen, have enacted domestic legislation containing provisions of similar effect105. Against such declarations, Germany, Italy and the Netherlands declared that the right of the coastal State is only with respect to those installations and structures which are provided for in Article 60106. Thus in the views of these and other maritime States, the coastal State has exclusive jurisdiction and the right to construct and to authorize and regulate the construction, operation and the use of installations and structures only if they are for resource, MSR or environmental purposes or if they may interfere with the exercise of the right of the coastal State in the EEZ. Hence, the maritime user States argue that they have the right to place military installations and structures in the coastal State's EEZ as long as they do not interfere with the exercise of the coastal State's rights.
Addressing the question of sonar surveillance systems, some commentators support the position of these maritime States on some other grounds. Thus, Boczek argues that such systems are "devices107" and not "installations", which is a narrower concept and therefore not among those objects which the coastal State has the exclusive right to construct or operate in its EEZ108. Similarly, de Muralt points out that the 1958 Geneva Convention on the Continental Shelf provided for "installations and other devices", whereas the LOS Convention uses the less comprehensive term "structures", and hence one could interpret that devices which are not "structures", such as a listening apparatus, would fall outside the limitations contained in Article 60109.
It seems difficult to draw firm conclusions in support of these interpretations of "devices", "installations" and "structures", since none of them are defined in the Convention, and moreover the term "device" is used without consistency throughout the Convention110. Since many States maintain their strong position on this issue, no general agreement is possible on the definitive interpretation of the provisions of Article 60 with regard to devices, installations and structures attached to the seabed in the EEZ. In the spirit of the purpose of the Guidelines, it is suggested that foreign States should refrain from placing military installations, structures and devices in a coastal State's EEZ.
102. The following is extracted from Hayashi, supra n. 4, pp. 131-132.
103. Nordquist, supra n. 5, pp. 576-579 and 581.
104. UN Division for Ocean Affairs and the Law of the Sea, The Law of the Sea: Declarations and statements with respect to the United Nations Convention on the Law of the Sea and to the Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, United Nations, 1997, pp. 4, 5, 18 and 45.
105. A.V. Lowe, Some legal problems arising from the use of the sea for military purposes, Marine Policy, v. 10, 1986, p. 180.
106. UN Division for Ocean Affairs and the Law of the Sea, supra n. 104, pp. 12, 29 and 35.
107. "Device" is not referred to in the 1982 UNCLOS Article 60, but it is generally understood that "device" is a broader and more general concept than "installation". See Articles 145(a) and 209(2), which refer to "installations, pipelines and other devices" and "installations, structures and other devices", respectively.
108. Boczek, supra n. 37, p. 453.
109. R.W.G. Muralt, The military aspects of the new Law of the Sea Convention, Netherlands Law Review, v. 32, 1985, p.94.
110. See the 1982 UNCLOS Articles 19(2), 145(a), 194(3), 194(3), 209(2), and 274(b).
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