Whither The Freedom of Navigation in the Exclusive Economic Zone: A Jurisdictional Analysis of Legislative and Enforcement Measures by States of the Pacific Islands Forum

Sammanfattning: Focusing on the EEZ, this study shows that whilst scholars have alluded to the possibility of disappearing rights of navigation in the EEZ, the issue is usually addressed in the context of a territorial tug-of-war. Here both sides are arguing for the same thing, namely, that the EEZ is unique and cannot be subsumed under the context of the territorial sea or the high sea. Yet, the fact that the issue of limits is fundamental to the disagreement leads this study to determine that resolving this tension lies in defining the limits of jurisdiction exercisable within the zone by the coastal state and the state in charge of the navigating vessel. The issue is one of jurisdiction over access and its relationship with jurisdiction over resources. This study examines the nature of sovereign rights and application of jurisdiction in the EEZ in the light of traditional international legal principles relating to territory, jurisdiction, sovereignty and sovereign rights. As well as examining any entitlements thereof from the perspective of both sides, this study will argue that the key to clarification lies in the examination of the jurisdictional possibilities present in the governance of the EEZ. This enquiry into jurisdictional possibilities then necessitates an approach that examines authoritative decisions addressing state concerns. Therefore, an assessment of jurisdictional measures by the state parties of the Pacific Islands Forum will feature to determine extant state practice. In arguing for a move beyond a fixation in sovereignty, this study introduces the possibility of assumed jurisdiction by third parties such as the port state through regional and sub-regional action. It then will argue for its development as the basis for the continued recognition of a fundamental aspect of the law of the sea, namely, the freedom of navigation, without which the LOSC treaty risks unravelling or redundancy. The individual chapters reveal a number of core themes such as resource rights and access rights; the sovereignty and sovereign rights debate from an EEZ perspective; the tensions between sovereign rights in relation to resources and ocean usage for navigation. Mindful of contributions from Pacific Islands Forum states to the Law of the Sea regime, the utility of the concept of jurisdiction in international law and its application in the study of the EEZ will be highlighted. If the nature of international law process is that of generality in the light of differing claims and issues, identifying and categorising areas of divergence whist highlighting models that might lead to some generality is beneficial to further research in this field as our oceans are interconnected. These chapters in highlighting concomitance or divergences in state practice whilst propose reasons for the same, will conclude that the future development of the law of the sea in the light of the importance of the EEZ is dependent on a clarification of jurisdictional measures in this zone and an adaptation of old rules of access in light of new alternatives to governance.