Malta’s EEZ still to be declared as Freedom Flotilla attack sparks security concerns

Malta’s Exclusive Economic Zone beyond its territorial waters has not yet been designated, nearly two years after parliament passed a law to make this possible.

The Maltese government has yet to issue a legal notice identifying the extent of the EEZ with government sources saying a decision is expected once the locations of renewable energy infrastructure are identified.

The EEZ is a maritime zone beyond a country’s territorial waters where a coastal state has special rights to explore, exploit, and manage natural resources.

Last week, Prime Minister Robert Abela categorically denied that the alleged drone attack on a Gaza-bound aid ship, part of the Freedom Flotilla, at Hurd Bank had occurred in Malta’s EEZ.

However, this was only because the extent of Malta’s EEZ has not yet been defined—despite Hurd Bank, a significant bunkering zone to the east of Malta, being repeatedly earmarked for inclusion.

Government sources have also confirmed that the designation of the EEZ will entail security obligations. “While the EEZ does not entail the same kind of sovereignty as territorial waters, one cannot simply leave major economic infrastructure unprotected,” a source told MaltaToday. 

Determining the extent of Malta’s EEZ

In July 2023, the Maltese parliament—with cross-party support—approved the enabling act to facilitate the definition and management of the EEZ. This legislative step also allowed government to issue international calls for projects within the EEZ, particularly in the energy sector.

Addressing parliament in 2023, Finance Minister Clyde Caruana had referred to the potential establishment of an EEZ in waters between 12 and 25 nautical miles from Malta’s shores. The zone—which coincides with the country’s Fisheries Management Zone and encompasses 7,500sq.km—does not include areas of the continental shelf further offshore that are contested by Tunisia, Libya, and Italy.

However, this does not mean that the entire area will be designated as an EEZ. Individual EEZs within this broader zone may be declared depending on the specific projects being considered.

This could technically include Hurd’s Bank, where the alleged drone attack took place, although government sources indicated that a final decision has not yet been taken on whether the EEZ will include all or only part of the waters around Hurd’s Bank.

In 2022, a preliminary market consultation by the government had identified a 900sq.km zone of shallow waters around Hurd’s Bank, and a 6,500sq.km belt around the island, as two areas where it intends to issue concessions to private companies for the production of renewable energy, the production and storage of hydrogen, fish farming, and the establishment of “artificial islands.”

A map published by the Maltese government when it presented legislation in parliament to allow the creation of an exclusive economic zone. The area in red, marked as EEZ 1 includes Hurd Bank, where the drone attack on an aid ship took place.

MaltaToday is informed that the government is awaiting the conclusion of the selection process for proposed wind farms beyond the country’s territorial waters before defining the extent of Malta’s EEZ.

One major consideration is that Hurd’s Bank is currently used as a bunkering area where cargo ships drop anchor and take on supplies. In 2021, the Malta Maritime Forum proposed that Hurd’s Bank should be assigned exclusively for shipping purposes—marine traffic and anchorages—under the control of the Maltese authorities.

However, red flags have also been raised about illegal or suspicious activities, including the use of the site for the refuelling of Russian ships. In its reaction to the alleged drone attack, the Nationalist Party has called on the government to improve intelligence gathering, surveillance, and control over what happens in the sea near Hurd’s Bank.

Military activity in EEZ

The legal regime of the EEZ is established in the UN Convention on the Law of the Sea (LOSC), designed to balance the freedoms of the high seas with the economic interests of coastal states. 

According to LOSC Article 58(1), all states enjoy in the EEZ the freedom of navigation and overflight, including “other internationally lawful uses of the sea” related to this freedom. 

The USA interprets this to include the right to carry out military exercises and intelligence gathering by foreign powers in the EEZs declared by other states. The US often conducts military operations in EEZs of other countries without seeking permission. However, other coastal states like China, India, and Brazil argue that foreign military activities require consent, especially if they involve surveillance or live-fire exercises.

China’s Ministry of Foreign Affairs has argued that US surveillance flights for the purpose of overt intelligence collection within China’s EEZ “undermine the international peace and security” of the EEZ and, therefore, constitute a violation of international law. The US view is that any activity that occurs in international airspace should be treated as legal unless it involves hostilities against another state, and therefore, the use of passive systems to collect information from an area not subject to national jurisdiction is entirely peaceful and lawful.

One major incident involving military skirmishes in China’s EEZ occurred in 2001 when a US Navy intelligence aircraft was conducting a surveillance flight in international airspace off Hainan Island, which is within China’s EEZ but outside its territorial waters. A Chinese F-8 fighter jet intercepted the US plane. During this encounter, the Chinese jet collided with the US plane, crashed, and its pilot was killed.

The US plane made an emergency landing on Hainan Island without Chinese permission, and the crew was detained. China claimed that the US surveillance flight was a violation of its sovereign rights in its EEZ and demanded an apology. The US argued that it was exercising freedom of overflight in international airspace and that UNCLOS does not prohibit military surveillance in the EEZ. The issue was resolved following a carefully worded diplomatic letter of ‘regret’ from the US, which led to the release of the US crew.

Western countries have also found themselves on the receiving end of suspicious military activities by other powers in their EEZs. Recent North Sea tensions involved suspected Russian espionage in European EEZs. In 2023, Denmark, Norway, and the Netherlands probed unusual activity near pipelines and wind farms. Allegedly, Russian vessels mapped infrastructure under civilian cover. However, in EEZs, such acts raised the alarm over hybrid threats and led to increased NATO surveillance.