Malta gets ready to declare an Exclusive Economic Zone

Author: Peter Grima

Malta has started the legislative process for the establishment of an exclusive economic zone (‘EEZ’) following the enactment of the Exclusive Economic Zone Act of 2021, Chapter 625 of the Laws of Malta (the ‘Act’). The primary objectives of this Act are to make provision for the establishment of an EEZ or parts thereof, environment protection areas and other ancillary matters thereto, as well as to extend jurisdictional rights for the water column beyond the territorial waters in accordance with the international law provisions of the 1982 United Nations Convention on the Law of the Sea (‘UNCLOS’).

The establishment of an EEZ gives coastal States limited jurisdiction within that maritime area, as well as special rights over the natural resources therein, but for a state to enjoy these rights, it must first proclaim that it has established an EEZ. Accordingly, the Act serves as a clear precursor that the Government of Malta intends to shortly establish an EEZ within the Mediterranean. The Act transposes the applicable provisions of UNCLOS into Maltese law and empowers the Prime Minister of Malta to establish an EEZ, wherein Malta will enjoy sovereign rights to explore and exploit, conserve, and manage the natural resources in the EEZ waters, its seabed and underlying sub-soil, and other activities for the exploration and exploitation of any EEZ established. Malta would also enjoy jurisdictional rights in any declared EEZ with regards to artificial islands, installations and structures, marine scientific research and the protection and preservation of the marine environment therein.

The Act seeks to create a harmonized approach to the implementation of the rights thereunder and those found in the Continental Shelf Act (Chapter 535 of the Laws of Malta) and Fisheries Conservation and Management Act (Chapter 425 of the Laws of Malta). In addition to this, the Act also empowers the Prime Minister of Malta to establish an Environmental Protection Zone (‘EPZ’), wherein the Government of Malta would have jurisdiction to protect and preserve the marine environment.

In accordance with the Territorial Waters and Contiguous Zone Act, Malta enjoys a 12 nautical mile territorial sea limit from its baselines. It also enjoys a 24 nautical mile contiguous zone from its baselines and since 1971 has benefitted from an Exclusive Fishing Zone (EFZ) that extends up to 25 nautical miles from its baselines. However, despite the enactment of the Act, to date Malta has not yet proclaimed the establishment of an EEZ that would extend Malta’s rights over its coastal waters and therefore it is unclear how large the EEZ would be. The Government of Malta will consequently need to assess the delimitation of a Maltese EEZ, an exercise that will reportedly be carried out soon, while taking into consideration the rights of neighbouring States in the region.

Geography permitting, Article 57 of UNCLOS stipulates that the maximum limit of the EEZ is established at 200 nautical miles from the ‘baselines from which the breadth of the territorial sea is measured’. Malta’s location at the centre of the Mediterranean, bounded by Italy and Libya to its North and South and Tunisia and Greece to its West and East respectively, has rendered the 200m criterion impossible due to overlapping claims where no two States are more than 400 nautical miles apart (in the case of Italy the distance is under 100km).

Notwithstanding the fact that the extent of the EEZ is presently unknown, and given the rights therein, it is reasonable to expect that the EEZ would extend to at least 24 nautical miles from Malta’s baselines (and thus cover all of Malta’s existing maritime boundaries). In such a scenario the Maltese EEZ could also cover Malta’s principal offshore anchorage area, known as Hurd’s Bank, which lies just outside of the 12 nautical mile territorial sea limit (the largest area is located at approximately 13 nautical miles up to 16 nautical miles from the nearest baseline).  As a result, Hurds Bank could be absorbed by Malta’s EEZ and in addition to the obvious claims to natural resources (whether living or non-living), such unilateral action may also have implications upon shipping activities regularly conducted at Hurd’s Bank.

Implementation of the Act is still at embryonic stage, yet the proclamation of an EEZ sets down the intentions of the Government of Malta to increase its rights and jurisdiction over the waters adjacent to its territorial sea. Indeed Article 5 of the Act provides that the Government of Malta shall enjoy certain rights over fisheries, natural resources, artificial islands, and energy projects (principally offshore wind and solar) in the EEZ. Given the shallow waters at Hurd’s bank, the declaration of an EEZ encompassing this anchorage area would be encouraging and would open up the possibility for the development of offshore energy structures, such as offshore wind or solar farms, exploitation of natural resources on the seabed and underlying sub-soil, as well as jurisdiction to protect and preserve the marine environment within that area.

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