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New Soviet Legislation on the 200 Mile Economic Zone and Certain Problems of Evolution of Customary Law

Published online by Cambridge University Press:  21 May 2009

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The new 1982 United Nations Convention on the Law of the Sea (hereinafter referred to as the LOS Convention) that lays down a comprehensive framework for contemporary uses of the sea, all of them playing an increasingly important role in international relations and the world's economy, may certainly be considered a major achievement in the history of international law. The Convention accomodates a great variety of political, economic and strategic interests of States in their various uses of the sea and provides a firm basis for avoiding conflicts between these uses. Quoting Arvid Pardo, it is ‘truly a “package deal” containing innumerable bilateral and multilateral political compromises’.

Copyright © T.M.C. Asser Press 1986

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1. United Nations Convention on the Law of the Sea, UN Doc. A/CONF.62/122 (7 October 1982), 21 ILM (1982) p. 1261.

2. Pardo, A., ‘The Convention on the Law of the Sea: A Preliminary Appraisal’, 20 San Diego LR (1983) p. 501Google Scholar.

3. They include: Bahamas, Bahrain, Belize, Cameroon, Cuba, Egypt, Fiji, Gambia, Ghana, Guinea, Iceland, Iraq, Ivory Coast, Jamaica, Mali, Mexico, Philippines, Senegal, Sri Lanka, St. Lucia, Tanzania, Togo, Tunisia and Zambia.

4. From among the United Nations activities that accelerate these processes one should mention the UN major programme on ‘Marine Affairs’ that was included as Chapter 25 in the medium-term plan of the UN for the period 1984–1989. See the Addendum to the Medium-Term Plan for the Period 1984–1989 (Chapter 25, Marine Affairs), General Assembly, Official Records of the Thirty-Seventh Session, Supplement No. 6 A, UN Doc. A/37/6/Add. 1 (New York: United Nations 1984).

5. Cf., Oda, S., ‘Sharing of Ocean Resources – Unresolved Issues in the Law of the Sea’, 3 Journal of International and Comparative Law (1981) p. 4Google Scholar.

6. Cf., Kwiatkowska, B., ‘Hugo Grotius and the Freedom of the Seas’, in Hugo Grotius: 1583–1983, Maastricht Hugo Grotius Colloquium Held at Faculty of Law, University of Limburg on 31 March 1983 (1984) pp. 2431Google Scholar; Nawaz, M.K., ‘The Emergence of the Exclusive Economic Zone: Implications for a New Law of the Sea’, 16 IJIL (1976) p. 481Google Scholar.

7. See President Reagan's Statement on the US Ocean Policy and Proclamation 5030 on the Exclusive Economic Zone of 10 March 1983, 83 Department of State Bulletin (1983) pp. 70–71.

8. The term ‘economic zone’ (EZ) will be used in this comment only with respect to remarks concerning Soviet legislation. In respect of all the others the term ‘exclusive economic zone’ (EEZ), as agreed in the LOS Convention, will be used.

9. See Vedomosti Verkhovnogo Soveta SSSR (Official Gazette of the USSR)(1984) No. 9, item 137, pp. 174180Google Scholar.

10. Texts of national acts and international agreements concerning the 200 mile zones, which are quoted in this article have been reprinted in Lay, S.H. et al. , eds., New Directions in the Law of the Sea, Documents, vols. I–II and IV–XI (1973, 1975, 1977, 1980 and 1981)Google Scholar. For the Decree of the Union of Soviet Socialist Republics on the Economic Zone, see Appendix infra.

11. The EEZ Proclamation of the USA (which during the 1981 UNCLOS III session objected to this formula) does not refer to international law, but provides that the boundary of its EEZ ‘shall be determined by the US and other States concerned in accordance with equitable principles’. Generally on this question, see Hodgson, R.D., ‘The Delimitation of Maritime Boundaries Between Opposite and Adjacent States Through the Economic Zone and Continental Shelf: Selected State Practice’, in Clingan, T.A., ed., The Law of the Sea: State Practice in Zones of Special Jurisdiction, Proceedings of Law of the Sea Institute Thirteenth Annual Conference Held at Mexico City on 15–18 October 1979 (1982) pp. 280316Google Scholar. For comments and discussion on this paper see idem at pp. 317–347.

12. This relates, e.g., to the legislation and fishery agreements concluded by Canada, the EEC, Japan, Poland, Portugal, Norway and the USA. As regards the developing States, whereas so far only a few of them (including, e.g., Cuba, Gambia or Mexico) follow in their practice the Convention's rules, it may be anticipated in the author's view (and among others on the basis of assistance being provided to those countries by the EEZ Programme of FAO), that practice will increasingly evolve so as to conform to the fishery provisions of the Convention. For details see Fleischer, C.A., ‘The Exclusive Economic Zone under the Convention Regime and in State Practice’, in Koers, A.W. and Oxman, B.H., eds., The 1982 Convention on the Law of the Sea, Proceedings of the Law of the Sea Institute Seventeenth Annual Conference Held at Oslo, Norway on 13–16 July 1983 (1984) pp. 253285Google Scholar.

13. It may be mentioned that before the enactment of the 1984 Decree of the USSR, some Soviet authors regarded Art. 66, para. 2 which formulates the duty of the State of origin to consult other States while establishing TAC, as contradicting Arts. 61–62 which provide for the discretionary right of the coastal State to determine TAC in its economic zone; however, other authors maintain that there is no contradiction between the abovementioned articles, for the duty of consultation applies merely to establishing TAC in the areas beyond the economic zone. See Podstavkin, M.S., ‘Ekonomicheskaia zona v sovremennom mezhdunarodnom morskom pravie, problemy sokhranenia i racionalnogo ispolzovania zhivykh resursov’ (Economic Zone in the Contemporary International Law of the Sea, Problems of Preservation and Rational Use of Living Resources), Sovetskii Ezhegodnik Mezhdunarodnogo Prava 1982 (1983) pp. 117118Google Scholar.

14. For details see Copes, P., ‘The Law of the Sea and Management of Anadromous Fish Stocks’, 7 Ocean Development and International Law Journal (1977) p. 236 et seq.Google Scholar

15. The concern of these States was already reflected by their drafts submitted during the preparations for, as well as in the course of, UNCLOS III. The most extreme proposals advocating the prohibition of fishing both within and beyond the EEZ except as authorized by the State of origin, have advanced, among others, Canada's Working Paper on the Special Case of Salmon – the Most Important Anadromous Species of 1974, UN Doc. A/CONF.62/C.2/L.81, and the USA Draft Articles for a Chapter on the Economic Zone and the Continental Shelf (Art. 18) of 1974, UN Doc. A/CONF.62/C.2/L.47. More moderate claims were presented by, e.g., Japan's Draft Article on Anadromous Species of 1974, UN Doc. A/CONF.62/C.2/L.46 and Draft Articles on the Economic Zone (Art. 20) submitted in 1974 by Bulgaria, Byelorussian SSR, East Germany, Poland, Ukrainian SSR and the USSR, UN Doc. A/CONF.62/C.2/L.38.

16. This relates, e.g., to sections 2(b)(l), 102(2) and 202(a)(4) and (b) of the American FCMA as well as to Article 12 of the Japanese Law on Provisional Measures Relating to the Fishing Zone of 1977. For details of FCMA's provisions see, in particular, Burke, W.T., ‘U.S. Fishery Management and the New Law of the Sea”, 76 AJIL (1982), pp. 4546Google Scholar.

17. This relates, e.g., to Article II, paragraph 1 of the Agreement Concerning Fisheries off the Coasts of the United States concluded in 1976 with the USSR and to Article VI of the analogous Agreement concluded in 1977 with Japan, as well as to Article III of the Agreement on Mutual Fishery Relations concluded in 1976 between Canada and the USSR.

18. Cf., supra n.15.

19. For details of this question, see Peters, P. et al. , ‘Removal of Installations in the Exclusive Economic Zone’, Report of the Netherlands Branch of International Law Association (ILA) (7 10 1983)Google Scholar. This report has been submitted by the EEZ Committee of the Netherlands Branch at the ILA International Committee on the EEZ at the sixty-first Annual Conference of the ILA held in Paris, on 26 August — 1 September 1984. The Conference approved this report and requested the ILA to make it available to the international organizations concerned with this subject. See Peters, P. et al. , ‘Removal of Installations in the Exclusive Economic Zone”, 15 NYIL (1984) pp. 167207Google Scholar.

20. This relates, e.g., to Art. 7(c) of the 1976 Act Relating to the Economic Zone of Norway; Art. 4 II of the 1976 Act of Mexico Regulating the Provisions of Paragraph 8 of Art. 27 of the Political Constitution Concerning the Exclusive Economic Zone; Art. 7 para. 4(b) of the 1976 Act of India on Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones; Art. 6 para. 2(b) of the 1976 Act of Pakistan on Territorial Waters and Maritime Zones; Art. 27(c) of the 1977 Act of New Zealand on Territorial Sea and Exclusive Economic Zone and Art. 7(c) of the 1977 Act of Portugal.

21. Stevenson, J.R. and Oxman, B.H., ‘The Third United Nations Conference on the Law of the Sea: The 1975 Geneva Session’, 69 AJIL (1975) p. 777Google Scholar.

22. Treves, T., ‘Military Installations, Structures and Devices on the Seabed’, 74 AJIL (1980) p. 841Google Scholar.

23. In this context it may be mentioned that the Soviet authors attach particular importance to the establishment of general criteria and guidelines to assist States in ascertaining the nature of marine scientific research, as provided for by Art. 251 of the LOS Convention. Cf., e.g., Kosinskaia, T.K., ‘Rezhim morskikh nauchnykh issledovanii v ekonomischeskoi zone’ (Regime of Marine Scientific Research in the Economic Zone), Sovetskii Ezhegodnik Mezhdunarodnogo Prava 1982 (1983) pp. 127130Google Scholar.

24. See, in particular, Soons, A.H.A., Marine Scientific Research and the Law of the Sea (1982) pp. 262267Google Scholar.

25. The freedom to construct artificial islands and other installations was never so much at stake as the freedom of marine scientific research. See idem at pp. 47–55.

26. This solution was proposed by Art. 5 of the 1974 Draft of socialist States quoted supra n.15.

27. This solution was proposed by the Draft Articles on Marine Scientific Research (Art. 6) submitted in 1975 by Beylorussian SSR, Bulgaria, Czechoslovakia, East Germany, Hungary, Mongolia, Poland, Ukrainian SSR and the USSR, UN Doc. A/CONF.62/C.3/L.26.

28. As a result, the ‘partial consent and notification regime’ that was embodied in Arts. 15–22 of the 1975 Informal Single Negotiating Text/Part III, has been replaced by ‘full consent regime’ in Arts. 58–65 of the 1976 Revised Single Negotiating Text/Part III and, with certain changes, in all the following versions of the negotiating texts and Draft Convention. As Ganz suggests, the chances of maintaining freedom of scientific research in the EEZ have been, in all likelihood, significantly diminished in connection with an action undertaken in 1975 by ‘Glomar Explorer’. See Ganz, D.L., ‘The United Nations and the Law of the Sea’, 26 ICLQ (1977) p. 28Google Scholar. Cf., also, Rubin, A.P., ‘Sunken Soviet Submarine and Central Intelligence, Law of Property and the Agency’, 69 AJIL (1975) pp. 855858Google Scholar. In addition, some other authors indicate that the USSR changed its position in order to gain the support of developing States for its proposals submitted in Committee I of UNCLOS III. Cf., e.g., Kimball, L., ‘UNCLOS: Frustration Continues’, 1 Marine Policy (1977) p. 81Google Scholar.

29. As it does, for example, in relation to the optimum utilization of its living resources, which according to Article 5 of the 1984 Decree is to be effected, ‘when appropriate, in co-operation with the competent international organizations’.

30. See also, e.g., Art. 27(b) of the Act of New Zealand, Art. 7(a) of the Act of Norway and Art. 7(a) of the Act of Portugal quoted supran. 20. It seems worth mentioning that several developing States (according to their position taken during UNCLOS III) claim, in their legislation, exclusive jurisdiction and the right to enact such regulations in this respect as they may deem necessary. This relates, e.g., to the 1976 Acts of India (Art. 7, paras. 4(d) and 6) and of Pakistan (Art. 6, paras. 2(d) and 4) quoted supra n. 20, as well as to the 1974 Act of Bangladesh on Territorial Waters and Maritime Zones (Arts. 8 and 9, para. 2(e)); the 1976 Maritime Zones Law of Sri Lanka (Art. 7); the 1977 Maritime Boundaries Act of Guyana (Arts. 16(d) and 18); and the 1977 Act of the Seychelles (Art. 9).

31. According to the US Proclamation:

‘Without prejudice to the sovereign rights and jurisdiction of the United States, the Exclusive Economic Zone remains an area beyond the territory and territorial sea of the United States in which all States enjoy the high seas freedoms of navigation, overflight, the laying of submarine cables and pipelines, and other internationally lawful uses of the sea’.

At the same time, the President declared in his Statement that:

‘In this respect, the United States will recognize the rights of other States in the waters off their coasts, as reflected in the convention, so long as the rights and freedoms of the United States and others under international law are recognized by such coastal States’.

32. See, e.g., the 1976 Acts of Norway (Arts. 2 and 7(c)) and Mexico (Art. 5) quoted supra n. 20, as well as Art. 3 of the 1977 Act of Cuba Concerning the Establishment of An Economic Zone; Art. 15 of the 1977 Act of Democratic Yemen Concerning the Territorial Sea, Exclusive Economic Zone, Continental Shelf and Other Marine Areas; and Art. 6 of the 1977 Act of the Dominican Republic on the Territorial Sea, Contiguous Zone, Exclusive Economic Zone and Continental Shelf. It may be noted that, for example, Guatemala recognizes other internationally lawful uses of the sea relating to navigation and communication ‘subject to the participation of a representative of the Government’. See Art. 4 of the 1976 Decree of Guatemala Concerning the Breadth of the Territorial Sea and the Establishment of An Exclusive Economic Zone. Besides, few States omit the freedom of the laying of submarine cables and pipelines in their legislation. This relates, for example, to the 1976 Acts of India (Art. 7, para. 8) and Pakistan (Art. 6, para. 6) quoted supra n. 20, to the 1977 Acts of Guyana (Art. 20) and the Seychelles (Art. 7, para. 6) quoted supra n. 30, as well as to the 1977 Territorial Sea and Maritime Zones Law of Burma (Art. 19).

33. For details of this concept, see, e.g., Fleischer, C.A., ‘The Right to a 200-Mile Exclusive Economic Zone or a Special Fishery Zone’, 14 San Diego LR (1977) pp. 567570Google Scholar. In her 1979 doctoral dissertation on The Legal Status of the 200 Mile Economic Zone pp. 335–348 (typescript of which is available at the Polish Institute of International Affairs in Warsaw), the present author adhered to the concept of limited and modified high seas status of the EEZ. Cf., also Kwiatkowska-Czechowska, B., ‘Medunarodni prvani rezim ekonomske zone od 200 milja’ (International Legal Status of the 200 Mile Economic Zone), 32 Medunarodni Problemi (1980) pp. 120128Google Scholar.

34. See, e.g., Movchan, A.P., ‘Konvencia OON po morskomu prave – vklad v progressivnoe razvitie mezhdunardognogo prava’ (The UN Convention on the Law of the Sea: A Contribution to the Progressive Development of International Law), Sovetskii Ezhegodnik Mezhdunarodnogo Prava 1982 (1983) pp. 5456Google Scholar; Podstavkin, , loc.cit., n.13, pp. 108111Google Scholar.

35. O'Connell, D.P., The International Law of the Sea, vol. 1 (1982) p. 578Google Scholar.

36. The amount of the fine to be imposed in cases of such violations corresponds to the former levels of not exceeding 10,000 roubles in the administrative, and not exceeding 100,000 roubles in the judicial proceedings.

37. Extavour, W.C., The Exclusive Economic Zone, A Study of the Evolution and Progressive Development of the International Law of the Sea (1981) p. 301Google Scholar. It should be noted that although published in 1981, this book was written in 1976–1977 and consequently recent State practice is only dealt with in general conclusions and prospects. A similar view is expressed by Anderson, A.S., ‘The Fishery Conservation and Management Act of 1976: Structure and Function of a Contiguous Economic Zone’, 12 Texas ILJ (1977) pp. 349351Google Scholar; Ibler, V., ‘The Changing Law of the Sea as Affecting the Adriatic’, 20 GYIL (1977) p. 188Google Scholar and Phillips, J.C., ‘The Exclusive Economic Zone as a Concept in International Law’, 26 ICLQ (1977) p. 585Google Scholar.

38. The present author defended this view for the first time in June 1979, in her doctoral dissertation referred to supra n.33, at pp. 64–69. Cf., also Kwiatkowska-Czechowska, , loc.cit., n.33, pp. 119120Google Scholar.

39. See, e.g., Anand, R.P., ‘The Politics of a New Legal Order for Fisheries’, 11 Ocean Development and International Law Journal (1982) p. 283CrossRefGoogle Scholar; Separate Opinion of de Aréchaga, Judge J., in Continental Shelf case (Tunisia v Libyan Arab Jamahiriya) ICJ Rep. (1982) p. 115 para. 54Google Scholar ; Burke, W.T., ‘Exclusive Fisheries Zones and Freedom of Navigation’, 20 San Diego LR (1983) pp. 601606Google Scholar; O'Connell, , op.cit., n.35, p. 574Google Scholar; McDorman, al., ‘The Gulf of Main Boundary. Dropping Anchor or Setting a Course?’, 9 Marine Policy (1985) p. 94Google Scholar; Fitzmaurice-Lachs, M., ‘The Legal Regime of the Baltic Sea Fisheries’, 29 NILR (1982) pp. 231232Google Scholar; Fleischer, , loc.cit., n.12, pp. 245253Google Scholar; Góralczyk, W., ‘Nowe prawo morza’ (New Law of the Sea), Panstwo i Prawo No. 8–9 (1979), p. 49Google Scholar; Hudson, C., ‘Fishery and Economic Zones as Customary International Law’, 17 San Diego LR (1980) pp. 673688Google Scholar; Koers, A.W., ‘The United Nations Convention on the Law of the Sea: An Overview’, in Hey, E. and Koers, A.W., eds., The International Law of the Sea, Issues of Implementation in Indonesia, Proceedings of a Seminar at Jakarta on 22–27 August 1983 (1984) pp. 2325Google Scholar; Lee, L.T., ‘The Law of the Sea Convention and Third States’, 77 AJIL (1983) pp. 561567Google Scholar; Macrae, L.M., ‘Customary International Law and the United Nations Law of the Sea Treaty’, 13 California Western ILJ (1983) p. 219Google Scholar; Oda, , loc.cit., n.5, p. 8Google Scholar and his dissenting opinion in ICJ Rep. (1982) pp. 170–171 and 214–215; Oxman, B.H., ‘An Analysis of the Exclusive Economic Zone as Formulated in the Informal Composite Negotiating Text’, in op.cit., n.ll, at p. 58Google Scholar and ‘Customary International Law in the Absence of Widespread Ratification of the UN Convention on the Law of the Sea’, in op.cit., n.12, at pp. 668–680; Pierce, G.A.B., ‘Selective Adoption of the New Law of the Sea: The United States Proclaims its Exclusive Economic Zone’, 23 VJIL (1983) pp. 581601Google Scholar; Riesenfeld, S.A., ‘Comment to Article by T.T.B. Koh, The Third United Nations Conference on the Law of the Sea: What Was Accomplished?’, 46 Law and Contemporary Problems (1983) pp. 1415CrossRefGoogle Scholar.

40. ICJ Rep. (1982) p. 74, para. 100.

41. See, e.g., Riesenfeld, loc.cit., n.39.

42. Delimitation of the Maritime Boundary in the Gulf of Maine Area case (Canada v United States of America), ICJ Rep. (1984) p. 265 para. 19. It is worth noting that this is the first case where delimitation relates both to the continental shelf and the exclusive fishery zone, with the delimitation being by a single boundary. See idem p. 267 para. 26.

43. Idem p. 294, para. 94.

44. Case Concerning the Continental Shelf (Libyan Arab Jamahiriya/Malta), ICJ Rep. (1985) p. 33 para. 34

45. Akehurst, M., A Modern Introduction to International Law (1982) pp. 270272Google Scholar; Flemming, B., ‘Customary International Law and the Law of the Sea: A New Dynamic”, in op.cit., n.12 at p. 532Google Scholar; Grolin, J., ‘The Future of the Law of the Sea: Consequences of a Non-Treaty or Non-Universal Treaty Situation’, 13 Ocean Development and International Law Journal (1983) pp. 89CrossRefGoogle Scholar; Scovazzi, T., ‘Implications of the New Law of the Sea for the Mediterranean’, 5 Marine Policy (1981) p. 303CrossRefGoogle Scholar.

46. See ‘First (Preliminary) Report of the Committee on the Exclusive Economic Zone”, para. 9, in Report of the Sixtieth Conference of the International Law Association Held at Montreal, Canada on 29 August—4 September 1982 (1983) p. 305.

47. Soons, , op.cit., n.24, p. 266Google Scholar.

48. See Kovalev, F., ‘Ekonomischeskaia zona i ee pravovoi status’ (The Economic Zone and Its Legal Status), Mezhdunarodnaia Zhizn no. 1 (1979) p. 64Google Scholar; Movchan, , loc.cit., n.34, p. 56Google Scholar; Lazarev, M., ‘The Sea Economic Zone – An Important Problem of the “Package”’, 17 IJIL (1977) pp. 209215Google Scholar; and the comments of Zakharov, A. and Kolosovski, I., in op.cit., n.12, at pp. 364368Google Scholar.

49. Movchan, loc.cit., n.34.

50. The confusion surrounding the concept of sources is already apparent in the use of the term ‘sources’, e.g., D'Amato, A., The Concept of Custom in International Law (1971) p. 268Google Scholar concludes that ‘because of the confusion resulting from its use, the term “evidence”, along with the term “sources”, is best relegated to the domain of counterproductive terminology’; and Bos, M., A Methodology of International Law (1984) pp. 4849Google Scholar proposes to replace the term ‘sources’ by the expression ‘recognized manifestations of law’. The latter are defined by Bos at idem p. 56, as ‘the phenomena which in a given legal order one is allowed to invoke in order to legitimize a reasoning alleged to be a legal one”. Cf., also, Bos, M., ‘The Recognized Manifestations of International Law: A New Theory of “Sources”’, 20 GYIL (1977) p. 15Google Scholar.

51. See Bos, M., ‘Legal Archetypes and the Normative Concept of Law as Main Factors in the Defining and Development of International Law’, 23 NILR (1976) pp. 7187Google Scholar; his Will and Order in the Nation-State System, Observations on Positivism and Positive International Law’, 29 NILR (1982) pp. 331Google Scholar; and A Methodology of International Law, op.cit., n.50

52. E.g., Bos proposed a replacement of the traditional sources by the so-called ‘Recognized Manifestations of International Law’ (cf., supra n.49), that depend on the ‘Normative Concept of Law’ prevailing in international relations. The Recognized Manifestations of International Law are either written (treaties, certain decisions of international organizations and certain judicial decisions) or unwritten (custom and general principles of law recognized by civilized nations). Additionally, Bos distinguishes certain ‘Alleged Manifestations of International Law’ (doctrine, the work of the UN International Law Commission, the resolutions of the UN General Assembly and unilateral acts), see A Methodology of International Law, op.cit., n.50 pp. 48–94 and Bos, , loc.cit., n.50 pp. 976Google Scholar together with his The Hierarchy Among the Recognized Manifestations (“Sources”) of International Law’, 25 NILR (1978) pp. 334344Google Scholar. See also, Van Hoof, G.J.H., Rethinking the Sources of International Law (1983)Google Scholar; Weil, P., ‘Towards Relative Normativity in International Law’, 77 AJIL (1983) pp. 413442Google Scholar. For details of the Soviet approach to the formation of the norms of international law through treaties representing an express agreement and customs representing an implied (tacit) agreement between States, as well as through certain auxiliary means, see, in particular, Ttinkin, G.I., Droit International Public, Problèmes Théoriques (1965) pp. 63127Google Scholar.

53. On the divergence of opinions (including those of D'Amato, and of adherents to the socalled ‘instant customary law’ and others), see A Methodology of International Law, op.cit., n.50 at pp. 62–68. For details of the Soviet approach to custom, see Tunkin, , op.cit., n.52, pp 76100 and pp. 128–139Google Scholar, and also Danilenko, G.M., ‘Proces sozdania obychnykh norm w mezhdunarodnom prave’ (Customary Rule Formation Process in Contemporary International Law), Sovetskii Ezhegodnik Mezhdunarodnogo Prava 1982 (1983) pp. 151170Google Scholar. Cf., remarks on particularities of the Soviet approach made by Akehurst, , op.cit., n.45, pp. 3132Google Scholar.

54. Oxman, ‘An Analysis of the Exclusive Economic Zone’, loc.cit., n.39.

55. See Flemming, , loc.cit., n.45, p. 502Google Scholar.

56. See A Methodology of International Law, op.cit., n.50, p. 224.

57. It seems worth mentioning that this may be regarded as reflecting general preference for a treaty as a principal source of international law, that still exists in Soviet doctrine. Cf., Korobova, M.A., ‘Obshchii mnogostronnyi dogovor, mezhdunarodnyi obychai i ne uchastvuiushchye v dogovore gosudarstva’ (General Multilateral Treaty, International Custom and States Non-Parties to the Treaty), Sovetskii Ezhegodnik Mezhdunarodnogo Prava 1981 (1982) p. 93Google Scholar.

58. See the North Sea Continental Shelf cases, ICJ Rep. (1969) p. 43 para. 74.

59. See Alexander, L.M., ‘The Ocean Enclosure Movement: Inventory and Prospect’, 20 San Diego LR (1983) p. 570Google Scholar and Appendix, Tables 2 and 3, at pp. 592–593. It should be noted that in the North Sea Continental Shelf cases the Court stated that State practice has to include that of ‘States whose interests are especially affected’, see supra n.58. According to Soviet authors, the proof of generality of practice requires the establishment of a number of actively acting States, enabling them to ascertain that the practice is so wide that it cannot affect the interests of all States of the international community and that, therefore, their acquiescence means consent. Furthermore, States whose interests are especially affected should participate in such practice. See Danilenko, , loc.cit., n.53, p. 164Google Scholar.

60. For instance, according to an evaluation made in 1983 by Carroz and Savini, the number of international agreements regulating fishing in the 200 mile zones amounted to 285. See Carroz, J. and Savini, M., ‘The Practice of Coastal States Regarding Foreign Access to Fishery Resources’, in FAO Fisheries Report, UN Doc. No. 293 (1983) pp. 4372Google Scholar.

61. See, e.g., the preamble to the 1982 Nauru Agreement Concerning Cooperation in the Management of Fisheries of Common Interest which was concluded by seven Western Pacific States, reprinted ibid at p. 206.

62. For instance, in 1980 the French Court of Appeal in Rennes declared in the Crujeiras Tome case (concerning fishing by Spain in the French EEZ) that freedom of fishing under the 1958 Geneva Convention has been abrogated by a new international custom on the economic zone which evolved from general practice on the 200 mile economic or exclusive fishery zones. The text of this judgment was reprinted in 87 RGDIP (1983) p. 465.

63. ICJ Rep. (1982) p. 228 para. 120. It may be mentioned that examples of the particularly quick emergence of the rules of customary law are to be found in outer space law, which rapidly developed after the first artificial satellite was launched in 1957.

64. See Fisheries Jurisdiction case, ICJ Rep. (1974) p. 23 para. 52

65. For instance, Articles 61 and 62 of the Convention that relate to conservation and utilization of the EEZ's living resources did not undergo any substantial change after their first formulation in the 1975 Informal Single Negotiating Text. This may be invoked, in the author's view, as one of the arguments in support of the thesis that the developing countries, whose legislation does not lay down the detailed rules contained in these articles, will not circumvent an intent of these provisions in their practice. Cf., also supra n.12.

66. See supra n.43.

67. It seems worth noting that, according to Soviet doctrine, assertion of the emergence of customary law requires the practice of States having different political, economic and legal systems and of States from various geographical regions. Cf., Danilenko, , loc.cit., n.53, p. 164Google Scholar and Tunkin, , op.cit., n.52, p. 87Google Scholar.

68. See Movchan, , loc.cit., n.34, pp. 4546Google Scholar.

69. See Naumov, L.E., ‘Svoboda sudokhodstva rybolovnykh sudov v ekonomicheskikh i rybolovnykh zonakh’ (Freedom of Navigation of Fishing Ships in Economic and Fishing Zones), Sovetskii Ezhegodnik Mezhdunarodnogo Prava 1982 (1983) p. 141Google Scholar.

70. See supra n.48.

71. See, e.g., Extavour, , op.cit., n.37, p. 304Google Scholar.

72. Rao, P. Sreenivasa, ‘Public Order of Oceans: Problems and Prospects’, 17 IJIL (1977) p. 222Google Scholar. Cf., also, O'Connell, , op.cit., n.35, p. 574Google Scholar.

73. As indicated by Bos, in A Methodology of International Law, op.cit., n.50, p. 228Google Scholar, although the emphasis in proving custom often falls on practice, ‘one should not overlook the fact that a proved practice may legitimately give rise to a presumption as to the opinio juris’. See also his detailed remarks on practice as proof of opinio juris, idem, at pp. 236–241. Similarly, according to Akehurst, , op.cit., n.45, p. 29Google Scholar, who observes, that ‘the modern tendency is not to look for direct evidence of a state's psychological convictions, but to infer opinio juris indirectly from the actual behaviour of states’.

74. Cf., Miles, E., ‘The Structure and Effects of the Decision Process in the Seabed Committee and the Third United Nations Conference on the Law of the Sea’, 31 International Organization (1977) p. 187Google Scholar. See also, de Aréchaga, supra n.39.

75. See Danilenko, , loc.cit., n.53, pp. 153 and 160Google Scholar.

76. In particular, Székely argued that:

‘Mexico may substantiate the existence of the consensus as a source of rights and duties by stating that, even when it is true that such consensus was not embodied in any sort of written agreement, the international community is in no way limited to express its opinio juris in a conventional form. The argument may be put forward that the consensus on the EEZ is embodied, since Caracas, in a customary rule of international law, since virtually all members of the international communitygave their support to establish it’.

Székely, A., ‘Mexico's Unilateral Claim to a 200 Mile Exclusive Economic Zone: Its International Significance”, 4 Ocean Development and International Law Journal (1977) p. 201CrossRefGoogle Scholar.

77. See Hudson, , loc.cit., n.39, pp. 681685Google Scholar.

78. Text reprinted in 8 ILM (1969) p. 679. This principle may be exemplified by the provisions of the 1958 Geneva Convention on the Continental Shelf, that — as stated by the International Court of Justice — partly codify customary law and thus bind all States, and partly progressively develop international law and thus bind only State parties to this Convention. See ICJ Rep. (1969) pp. 39–41.

79. See, e.g., Bos, , A Methodology of International Law, op.cit., n.50, pp. 67 and 229–230Google Scholar; Charney, J.I., ‘The United States and the Law of the Sea After UNCLOS III – The Impact of General International Law’, 46 Law and Contemporary Problems (1983) pp. 3839CrossRefGoogle Scholar; Lee, loc.cit., n.39; Weil, , loc.cit., n.52, pp. 439440Google Scholar.

80. See, e.g., Danilenko, , loc.cit., n.53, pp 160162Google Scholar and Korobova, , loc.cit., n.57, pp. 9697Google Scholar.

81. The main condition required under that theory, as advanced on the basis of the North Sea Continental Shelf judgment, is a very widespread and representative participation of States, including those whose interests were especially affected, in a given convention. For a critical examination of that theory see, in particular, Bos, , A Methodology of International Law, op.cit., n.50, pp. 252255Google Scholar; Danilenko, loc.cit., n.53; and Weil, , loc.cit., n.52 pp. 434436Google Scholar. It may be mentioned that, e.g., Weil who seriously doubts — as the other authors do — whether the abovementioned judgment bears the construction placed upon it by that theory, warns that in future one ‘may encounter the application of the same reasoning to this or that provision of the new Convention on the Law of the Sea, even before its entry into force — and a fortiori after’ (idem p. 436), and Bos points out that ‘in the North Sea Continental Shelf cases the International Court made it abundantly clear that it held custom to be a matter of practice and opinion juris…’ (idem p. 255).

82. See, e.g., Movchan, , loc.cit., n.34, pp. 46, 49Google Scholar.

83. See supra n.48.

84. See, in particular, the statement by Peru (on behalf of the Group of 77) and by the USSR (on behalf of the Group of Eastern European States) at the 1982 Montego Bay session of UNCLOS III, UN Doc. A/CONF.62/SR.183, pp. 3–4. Also in their statements delivered at the 1983 meeting of the Preparatory Commission, the Group of Eastern European States, the USSR and the Group of 77 firmly condemned the EEZ Proclamation of the USA as evidencing the United States' selective approach to the Convention and its attempt to utilize individual provisons of the Convention in order to obtain unilateral advantages for itself. The texts of these statements were reprinted in Law of the Sea Bulletin no. 1 (September 1983) pp. 83–87.

85. See, e.g., Movchan, , loc.cit., n.34, p. 51 et seq.Google Scholar, and Naumov, , loc.cit., n.69, p. 133Google Scholar. While, however, considering the problem of the customary nature of the EEZ, the Soviet authors indicate that one cannot ‘dismember the Convention into parts’ and say that ‘this here is an old rule, nothing but a repetition of customary law, and there is a new rule, which is not even taken into consideration’. See Kolosovski, , in op.cit., n.12, p. 367Google Scholar.

86. See supra n.84.

87. As regards the views of the authors from Eastern European States, see Góralczyk, loc.cit., n.39; Kwiatkowska-Czechowska, loc.cit., n.33; and a comment by Symonides, J., in Dupuy, R.J.., The Management of Humanity's Resources: The Law of the Sea, Workshop, The Hague, 29–31 October 1981 (1982) p. 298Google Scholar. As regards the views of the authors from the developing States, see Anand, loc.cit., n.39; comments of Hingorani, and Cukwurah, Oye, in Report of the Sixtieth Conference of the ILA, op.cit., n.46, pp. 321322Google Scholar; and a comment of Djalal, H., The Law of the Sea, op.cit., n.ll, p. 513Google Scholar.

88. See, e.g., Koers, loc.cit., n.39; Lee, , loc.cit., n.39, pp. 566567Google Scholar; Malone, J.L., ‘Freedom and Opportunity: Foundation for a Dynamic Oceans Policy’, 84 Dept. of State Bull. No. 2093 (1984) p. 77Google Scholar.

89. Lee, , loc.cit., n.39, p. 568Google Scholar.

90. Idem p. 567.

91. Koers, , loc.cit., n.39, p. 23Google Scholar.