Study on the Coastal State’s Authority to Regulate Bunkering by Foreign Vessels in its Exclusive Economic Zone

Article 55 of the 1982 United Nations Convention on the Law of the Sea(UNCLOS) provides for the Exclusive Economic Zone(EEZ), a special water zone where the rights of the coastal State overlap with the rights and freedoms of other States. Article 56 of UNCLOS lays down the sovereign rights, jurisdiction, and obligations of the coastal State in the EEZ, and Article 58 stipulates the rights and obligations of other States. Nevertheless, the rights and obligations between the coastal State and other States become uncertain for matters not specifically stipulated in the EEZ. Article 59 of UNCLOS stipulates the basis for resolving conflicts regarding the attribution of rights and jurisdiction in the EEZ, but the wording of the article is very abstract, so the attribution of rights and obligations is still ambiguous. For example, if a foreign vessel conducts a refueling operation while sailing in the EEZ of the coastal State, the legality of this action arises. This article analyzed the EEZ regime in order to study whether the refueling of foreign vessels is related to the freedom of navigation and operation that the coastal State can enjoy in the EEZ and corresponds to other internationally lawful freedoms of use of the sea that are compatible with other provisions of UNCLOS. To this end, it reviewed international case law. The UNCLOS EEZ regime does not provide clear provisions on whether foreign vessels can refuel in the EEZ of the coastal state. Therefore, it is of the view of the author that the legality of refueling should be interpreted by linking the provisions related to the EEZ legal system with other relevant articles of the UNCLOS. The relevant articles refer to Articles 56, 58, and 59 of the UNCLOS, as well as articles related to the high seas regime. In addition, this paper reviewed the Act on the Exercise of Sovereign Rights over Foreign Fisheries, etc. in the Exclusive Economic Zone to confirm the rights and obligations of foreigners and foreign vessels in the EEZ of the coastal state. According to this Act, if a foreigner wishes to engage in fishing activities in the exclusive economic zone of Korea, he or she must obtain permission from the Minister of Oceans and Fisheries for each vessel. The act by a fishing vessel of receiving fuel oil is considered a “fishing activity” under this Act, and thus requires permission from the Minister of Oceans and Fisheries. In addition, relevant laws were reviewed to determine whether the act of refueling at sea by foreign vessels in the EEZ of the coastal state is in violation of laws related to marine pollution prevention. In this regard, the coastal State cannot directly exercise enforcement jurisdiction under the marine pollution prevention laws regarding the refueling of vessels. The act of refueling and supplying fuel at sea for foreign fishing vessels engaged in fishing in the EEZ of the coastal State conflicts with the coastal State’s sovereign right to manage fishery resources, and is subject to the coastal State’s regulation. Since the act of supplying fuel to fishing vessels engaged in fishing in the EEZ of the coastal State is an act regulated by the coastal State, the act of the refueling vessel in this regard is also subject to regulation. Nevertheless, in light of UNCLOS and the position of international case law, it is considered that the act of refueling for vessels other than fishing vessels engaged in fishing in the EEZ of the coastal State is subject to the system of freedom of navigation and operation. The legal nature of foreign fishing vessels that simply navigate without any relation to fishing activities in the EEZ should be considered differently, and the act of navigating in the EEZ without relation to fishing corresponds to the freedom of navigation in the EEZ. This also applies to vessels other than foreign fishing vessels navigating in the EEZ of a coastal state.