A Project Report on

Exclusive Economic Zone and its Importance in

International Law

Project submitted to:

Mr. Mohd. Atif Khan

(Faculty of Public International Law)

Project Submitted by:

Prashant Kerketta

Semester IV, Section B

Roll no. 119

Submitted on:

31.11.2018

Hidayatullah National Law University, Naya Raipur Chhattisgarh.

 Declaration

I hereby declare that the project work entitled “Exclusive Economic Zone and its
Importance in International Law” submitted to Hidayatullah National Law University,
Raipur, is record of an original work done by me under the able guidance of Mr. Mohd.
Atif Khan, Faculty of Public International Law, HNLU, Raipur.

Prashant Kerketta

Semester- IV

Section B

Roll no-119

2
 Acknowledgements

I feel highly elated to work on the topic “Exclusive Economic Zone and its Importance in
International Law”

The practical realization of this project has obligated the assistance of many persons. I
express my deepest regard and gratitude for Mr. Mohd. Atif Khan, Faculty of Public
International Law.

His consistent supervision, constant inspiration and invaluable guidance has been of
immense help in understanding and carrying out the nuances of the project report.

I would like to thank my family and friends without whose support and encouragement,
this project would not have been a reality.

I take this opportunity to also thank the University and the Vice Chancellor for providing
extensive database resources in the Library and through Internet.

Some printing errors might have crept in, which are deeply regretted. I would be grateful
to receive comments and suggestions to further improve this project report.

Prashant Kerketta

Semester- IV

Section B

Roll no-119

3
 Table of Contents
Declaration .......................................................................................................................... 2
Acknowledgements ............................................................................................................. 3
Abbreviations & Acronyms ................................................................................................ 5
Introduction ......................................................................................................................... 6
Objectives ........................................................................................................................... 7
Scope of Study .................................................................................................................... 7
Research Methodology ....................................................................................................... 7
Sources of Data ................................................................................................................... 7
Tools of data collection ....................................................................................................... 7
Organization of study.......................................................................................................... 7
Part I- Key Concepts of the EEZ ........................................................................................ 8
Fundamentals of the Exclusive Economic Zone ............Error! Bookmark not defined.
Specific Legal Regime ...................................................Error! Bookmark not defined.
Breadth of Exclusive Economic Zone ...........................Error! Bookmark not defined.
Rights, Jurisdiction and Obligations of Coastal States in the EEZError! Bookmark
not defined.
Rights and Duties of Other States in the EEZ................Error! Bookmark not defined.
Part II-Comparison between continental shelf and EEZ....Error! Bookmark not defined.
Part II-Indian Position on EEZ: .........................................Error! Bookmark not defined.
Conclusion .........................................................................Error! Bookmark not defined.
References ..........................................................................Error! Bookmark not defined.
Bibliography ..................................................................Error! Bookmark not defined.
Webioliography..............................................................Error! Bookmark not defined.

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 Abbreviations & Acronyms

1. UNCLOS United Nations Convention on Law of Sea

2. EEZ Excusive Economic Zone

5
 I. Introduction

UNBORN PERSON: He is one who is not in existence as of now or who will come into
existence in future at any time or who is in the womb of the mother. He is basically, a
person not yet born.

RIGHTS OF UNBORN:

 According to the Vienna Convention on the Law of Treaties, the rule regarding
the protection of life before birth could be considered as 'jus cogens' (final norm
of general international law).
 According to Fleming and Hains: "The right to life of all human beings has the
nature of an intransgressible norm already contained in the Universal Declaration
of Human Rights 1948, the International Covenant on Civil and Political Rights
1966 and the Declaration of the Rights of the Child 1959. Under international
law, the unborn child is protected.
 Explicit protection is extended to the unborn child in the International Covenant
on Civil and Political Rights 1966, and in the Convention on the Prevention and
Punishment of the Crime of Genocide 1948.
 The text (of the Universal Declaration of Human Rights 1948) clearly states that
everyone has the right to life, and that what is meant by everyone is 'every
member of the human family' - that is all human beings. Here is the nub of the
matter."

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 Objectives
The Specific Objectives of the research work are-

 To study the key concepts of Exclusive Economic Zone?

 To know the comparison between Continental Shelf and EEZ?
 To know the Indian position on EEZ?

Scope of Study
The Research work covers mainly the concept of EEZ, its comparison with Continental
shelf, and the Indian position.

Research Methodology
This Research Project is Descriptive in nature as it uses descriptive language for the
explanation of various topics and subjects discussed in this project.

Sources of Data
Secondary data has been mostly used in the making of this research project, which
includes scholarly articles and books.

Tools of data collection

The data so used in the making of this Research work has been collected mainly from
scholarly articles and books pertaining to the subject.

Organization of study
The Research Work has been divided into Parts, which are further divided into Sub-parts.

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II. TRANSFER OF PROPERTY TO UNBORN

A child in its mother’s womb is for many purposes regarded by a legal fiction as already
born, in accordance with the maxim nasciturus pro jam nato habetur; which means that
the legal capacity of the natus is sometimes determined by referring back to a time when
he was still nasciturus (unborn). Thus, in the law of property, there is a fiction that a child
en ventre sa mere is a person in being a life chosen to form part of the period in the rule
against perpetuities.

 TRANSFER OF PROPERTY ACT – SECTION 13

Where, on a transfer of property, an interest therein is created for the benefit of a person
not in existence at the date of the transfer, subject to a prior interest created by the same
transfer, the interest created for the benefit of such person shall not take effect, unless it
extends to the whole of the remaining interest of the transferor in the property. Sec 13
TPA

 Prior Interest: Prior interest is not affected by reason of the subsequent interest
being rendered void by this rule. It is neither enlarged or extinguished (Mohamed
Shah v. Official Trustee of Bengal, 190936 CAL 431).
 Limited Interest: Limited interest cannot be created for the benefit of an unborn
person even though it is subject to a prior interest in favor of a living person.

Illustration –

A transfers property of which he is the owner to B in trust for A and his intended wife
successively for their lives, and, after the death of the survivor, for the eldest son of the
intended marriage for life, and after his death for A's second son. The interest so created
for the benefit of the eldest son does not take effect, because it does not extend to the
whole of A's remaining interest in the property. ( T. Subramania Nadar v. T.
varadharajan, AIR 2003 mad 364 at p. 368)

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III. PRE-REQUISITES FOR A VALID TRANSFER
OF PROPERTY TO AN UNBORN PERSON

i) No transfer: The transfer of property can be done by way of trusts but not directly. In
the absence of trust the property must be created in favor of a living person and then to
the minor.
ii) Prior Interest: Life interest can be enjoyed by person(s) until the unborn comes into
existence.

iii) Before the death of last life estate holder: The unborn person must come into
existence before the death of the last life estate holder. It is not necessary that he should
be born, even if he is in the mother’s womb that is enough. A child en ventre sa mere is
equal to child in essence meaning a child in the mother’s womb is equal to a child in
existence.

iv) Immediate transfer of rights: All the rights should vest in the unborn child as soon as
he comes into existence. He will the absolute owner of the property vested in him.
The pertinent fact here is that the transfer can be made to an unborn person but not to the
issue of an unborn person. Where the gift made in favor of the unborn grand children was
not in respect of the whole interest in the property, the gift was held to be a valid
document
In the case of Isaac Nissim Silas v. Official trustee of Bengal, A.I.R 1957, Cal 118, the
trust was a family trust created for the benefit of settlor and his wife, his two sons and
their children to be born. At the date of the trust the settlor’s family consisted of his wife
and his three children. The trust deed provided that the trustee after making provisions for
meeting the necessary expenses, the property will remain in lifetime of settlor, thereafter
to his wife, thereafter to his three sons in equal shares. Remainder in favor of the sons
children that may be born and remain alive at a certain period subject to certain
restrictions. The legality of the gift made in favor of the grandsons was questioned. It was
held that the trust in favor of the grand-children in deed of trust was void.

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IV. ORIGINS

The origin of rule against perpetuity stems from the days of feudal England as far back as
in 1682 from the case of Duke of Norfolk's, wherein, Henry (the 22nd Earl of Arundel),
tried to create a shifting executory limitation in a way that one of his titles would pass to
his eldest son (who was mentally deficient) and thereafter to his second son, and another
title would pass to his second son and thereafter, to his fourth son. The estate plan also
included provisions for shifting the titles many generations later, if certain conditions
were to occur. It was held by the House of Lords that such a shifting condition could not
exist indefinitely and that the tying up of property too long beyond the lives of people
living at the time was wrong. The concept of trying to control the use and disposition of
property beyond the grave was often referred to as control by the "dead hand". The rule
against perpetuity, in England, was later codified in the form of the Perpetuities and
Accumulations Act, 1964.

 POSITION IN INDIA

Before the Transfer of Property Act, 1882, there was practically no law as to real
property or, as to personal property, in India. A few points had been covered by
regulations, and the Acts, which were repealed either wholly or in part by Section 2 of the
Transfer of Property Act but for the rest of the law, the Courts, in the absence of any
statutory provision, adopted the English law as the rule of justice equity and good
conscience. This was not satisfactory, for the rules of English law were not always
applicable to social conditions in India, and the case law became confused and
conflicting. To remedy this state of affairs, a Commission was appointed in England to
prepare a Code of substantive law for India, and the Transfer of Property Act, though
drafted in 1870, was the last of these drafts to become law.

By the private laws of Hindus and Mahomedans dispositions of property in favor of

unborn persons could not be made, but no such embargo on anticipatory benevolence
attached to the private laws of other communities, including Christians, Parsis and Jews,
to whom English law was applied, to the extent that estates tail could be created as seen

10
 in the Modes of Conveying Land Act, 1854. The Indian Succession Act, 1865, was the
first Act, which curtailed the right of the other communities to dispose of property by will
to unborn persons, by modifying the English law, but so far as the transfer of property
inter vivos was concerned, English law continued to be applied to the other communities,
until the passing of the Transfer of Property Act in 1882, and by statutes of 1914, 1916
and 1921. Hindu private law, which prohibited any disposition in favor of an unborn
person, was amended so as to bring into operation the two groups of sections concerning
dispositions in favor of unborn persons contained respectively in the Indian Succession
Act, 1865, and the Transfer of Property Act, 1882.

V. RULE AGAINST PERPETUITY

 Section 14 of TPA provides that:

"No transfer of property can operate to create an interest which is to take effect after
the life time of one or more persons living at the date of such transfer, and the
minority of some person who shall be in existence at the expiration of that period, and
to whom, if he attains full age, the interest created is to belong."

ANALYSIS

 The TPA does not permit transfer of property directly in favor of an unborn
person. Thus, in order to transfer a property for the benefit of a person unborn on
the date of the transfer, it is imperative that the property must first be transferred
in favor of some other person living on the date of transfer. In other words, the
property must vest in some person between the date of the transfer and the coming
into existence of the unborn person since property cannot be transferred directly

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 in favor of an unborn person. In other words, the interest of the unborn person
must, in every case, be preceded by a prior interest.
 Further, where an interest is created in favor of an unborn person on a transfer of
property, such interest in favor of the unborn person shall take effect only if it
extends to the whole of the remaining interest of the transferor in the property,
thereby making it impossible to confer an estate for life on an unborn person. In
other words, the interest in favor of the unborn person shall constitute the entire
remaining interest. The underlying principle in section 13 is that a person
disposing of property to another shall not fetter the free disposition of that
property in the hands of more than one generation.
 Section 13 does not prohibit successive interests (limited by time or otherwise)
being created in favor of several persons living at the time of the transfer. What is
prohibited under section 13 is the grant of interest, limited by time or otherwise,
to an unborn person.
 Further, Section 14 of TPA provides that where an interest is created for the
benefit of an unborn person (in accordance with the provisions of section 13),
such interest shall not take effect if the interest is to vest in such unborn
person after the life time of one or more persons living on the date of the transfer
(i.e. the person in whose favor the prior interest is created as required under
section 13) and the minority of such unborn person. In other words, the interest
created for the benefit of an unborn person shall take effect only if the interest is
to vest in such unborn person before he attains the age of eighteen years.
 Section 14 further provides that the unborn person, in whose favor the interest is
created, must have come into existence on or before the expiry of the life or lives
of the person(s) in whose favor the prior interest is created as required under
section 13.

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 EXTENT OF PERPETUITY PERIOD

Position in India – Life or any number of lives in being + period of gestation + minority
period of the unborn beneficiary.

English Law – Life or lives in being +period of gestation +minority period.

 OTHER RELEVANT PROVISIONS

 Sections 113 and 114 of Indian Succession Act, 1925: Sections 113 and 114 of
the ISA are almost identical to sections 13 and 14, respectively, of TPA. The main
difference between the provisions under the ISA and the provisions under TPA is
that the former deals with bequests which take effect only on the death of the
testator while the latter relate to transfer of property inter vivos. Section 13 of
TPA controls Section 113 of ISA and both of them are to be read together, as
opined by the Apex Court in Raj Bajrang Bahadur Singh vs. Thakurain
Bakhtraj Kuer (AIR 1953 Supreme Court 7). It was further observed by the
Court that:

"It is quite true that no interest could be created in favor of an unborn person but
when the gift is made to a class or series of persons, some of whom are in existence
and some are not, it does not fail in its entirety; it is valid with regard to the persons
who are in existence at the time of the testator's death and is invalid as to the rest."

 EXPLANATION

 The effect of these Rules is that a transfer/ gift can be made to an unborn person
subject to the following conditions: (i) that the transfer/ gift shall be of the whole
of the remaining interest of the transferor/ testator in the thing transferred/
bequeathed and not of a limited interest; and (ii) that the vesting is not postponed
beyond the life in being and the minority of the unborn person.

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 In simple terms, while section 13 of TPA lays down the mechanism for transfer of
property for the benefit of unborn person and "what property" is required to be
ultimately transferred in favor of an unborn person in order to validate such
transfer, section 14 of TPA provides the "maximum period as to when" such
property can be vested upon such unborn person.
 Section 14 of TPA supplements section 13 of TPA and thus, it is pertinent to note
that when an interest in any property is intended to be transferred in favor of an
unborn person, sections 13 and 14 of TPA are required to be read together and the
provisions contained thereunder are required to be duly complied with, in order to
give effect to the intended transfer in favor of such unborn person.

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VI. DIFFERENCE BETWEEN INDIAN AND ENGLISH LAW

1) The minority period in India is 18 years whereas it is 21 years under English law.

2) The period of gestation should be an actual period under Indian Law but it is a gross
period under English law.

3) Under Indian law, property should be given absolutely to the unborn person whereas in
English law, need not be absolutely given.

4) The unborn person must come into existence before the death of the last life estate
holder as per Indian law whereas he must come into existence within 21 years of the
death of the last life estate holder in case of English law.

 EXCEPTIONS

1) Transfer for public benefit: Where property is transferred for the benefit of the people
in general, then it is not void under this rule. e.g. for the advancement of knowledge,
religion, health, commerce or anything beneficial to mankind.

2) Covenants of Redemption: This rule does not offend the covenants of redemption in
mortgage.

3) Personal Agreements: Agreements that do not create any interest in the property are
not affected by this rule. This rule applies only to transfers where there is transfer of
interest.

4) Pre-emption: In this there is an option of purchasing a land and there’s no question of

any kind of interest in the property, so this rule does not apply.

5) Perpetual Lease: It is not applicable to the contracts of perpetual renewal of leases.

This rule is not applicable to mortgages because there is no creation of future interest.

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VII. CASE LAWS

1. GIRJISH DUTT AND OTHERS V. DATA DIN AND OTHERS

The plaintiffs in the suit were Data Din, Sitla Din, Sheo Mangal and Bindeshari Prasad.
They brought the suit for possession of certain plots in the village of Purabayum in the
district of Partabgarh. The defendants were Girjish Dutt, Rajendra.

Facts-

One Mt. Sugga was the absolute owner of the property in suit. On 15th January 1919, she
executed a deed of gift transferring the property in the first place to Mt. Ram Kali, the
daughter of Data Din, who was a son of her real brother. Mt. Ram Kali remained in
possession during her life. On her death a dispute arose between Data Din, plaintiff 1, the
father, and Girjish Dutt, defendant 1, the husband of Mt. Ram Kali. Data Din transferred
some of his interest to the three other plaintiffs, who joined him in instituting the suit.
Girjish Dutt also transferred half of the property to his brother Rajendra Dutt, defendant
2. The plaintiffs' case was that the gift in favor of Mt. Ram Kali was of a life interest
only, and that under the terms of the gift, the property passed on her death to her father
Data Din. The defendants on the other hand contended that Mt. Ram Kali was an absolute
owner of the property transferred to her under the gift, and therefore the property on her
death devolved on her husband, defendant 1. They also contended in the alternative that if
the gift in favor of Mt. Ram Kali was not absolute, even then the gift over in favor of
Data Din was void by reason of the provisions of Ss. 13 and 16, TPA.

The contention urged on behalf of the defendants was that the gift of a life interest to the
unborn daughters of Mt. Ram Kali was void under the provisions of S. 13, T. P. Act, and
that the gift over to the first plaintiff was consequently void under S. 16 of the same Act,
because he was to take after or on the failure of the daughters.

The learned Subordinate Judge held that the gift conveyed to Mt. Ram Kali only a life
interest, and that the gift over to plaintiff 1 was not void because it was not dependent on
the gift to the daughters, but was an alternative and independent gift.

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Girjish Dutt and Rajendra instituted the appeal in the High court.

The main questions which have been raised in arguments were:

(1) Whether the gift to Mt. Ram Kali was an absolute gift or not,

(2) Whether the plaintiffs' case falls under the provisions of Ss. 13 and 16, TPA.

The high court was of the opinion that the conclusion to be drawn from the deed as a
whole must inevitably be that the gift to Mt. Ram Kali was not an absolute gift, but a gift
only of a life interest.

S. 13, TPA runs as follows:

Where, on a transfer of property, an interest therein is created for the benefit of person
not in existence at the date of the transfer, subject to a prior interest created by the same
transfer, the interest created for the benefit of such person shall not take effect, unless it
extends to the whole of the remaining interest of the transferor in the property.

It is clear that the gift over in favor of the sons or grandsons of Mt. Ram Kali was not in
any sense void, and it was a transfer of an absolute interest but on the other hand, the gift
over to the daughters of Mt. Ram Kali, who were not born at the time of the transfer, was
void because the transfer of the interest to them was subject to the prior interest created
by the same transfer in favor of Mt. Ram Kali, and it was a transfer which did not extend
to the whole of the remaining interest of the transferor in the property, since it was
intended merely to be a life interest.

Where by reason of any of the rules contained in S. 13.......an interest created for the
benefit of a person......fails in regard to such person.......any interest created in the same
transaction and intended to take effect after or upon failure of such prior interest also
fails.

The question referred by the Division Bench for decision to the Full Bench was:

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Whether, in the circumstances set forth in our order, the gift over to Data Din under the
deed executed by Mt. Sugga in favor of Mt. Ram Kali is void having regard to the
provisions of Ss. 13 and 16, T. P. Act.

Following were contention taken into consideration. The relevant portion of the deed of
gift relating to the gift over runs as follows:

“If on her (Ram Kali's) death there be any male descendants, 'whether born of son or
daughter, he will be the absolute owner of the property, and if Mt. Ram Kali may have
only daughters, thay shall have no power of transfer. If, God forbid, there may not be any
issue of Mt. Ram Kali, whether male or female, living at the time of her death, the gifted
property shall not in any way devolve upon her husband or his family, but it shall go to
Data Din, father of Mt. Ram Kali, if he be then alive, and if Data Din be not alive, then
the person who may be living of the line of Data Din at that time would get it.”

The intention of the donor clearly was that Data Din should get the property only in ease
the gift in favor of the male-descendants and the daughters of Ram Kali failed. The case
therefore seems to be fully covered by the words upon failure of such prior interest. If the
taking effect of the subsequent interest is dependent upon the failure of a prior interest
which satisfied the other requirements of the section 16, we fail to see any escape from
the rule laid down therein that such subsequent interest must also fail. As we have held
that the other requirements of the section are satisfied, and we are further of opinion that
the gift in favor of Data Din was dependent upon the failure of the prior interest in favor
of the daughters, the result is that the gift in favor of Data Din must also fail.

Thus issue referred by the division bench to the full bench was given an affirmative
answer.

2. SOPHER V. ADMINISTRATOR GENERAL OF BENGAL

In the case of Sopher v Administrator General of Bengal a testator directed that his
property was to be divided after the death of his wife into as many parts as there shall be
children of his, living at his death or who shall have pre-deceased leaving issue living at

18
his death. The income of each share was to be paid to each child for life and thereafter to
the grand-children until they attained the age of 18, when alone the grand-children were
to be absolutely entitled to the property. The bequest to the grand-children was held to be
void by Privy Council as it was hit by sec.113 of the Indian Succession Act which
corresponds to sec.13 of Transfer of property Act. Their Lordships of the Privy Council
observed that: “ If under a bequest in the circumstances mentioned in sec.113, there was a
possibility of the interest given to the beneficiary being defeated either by a contingency
or by a clause of a defeasance, the beneficiary under the later bequest did not receive the
interest bequeathed in the same unfettered form as that in which the testator held it and
that the bequest to him did not therefore, comprise the whole of the remaining interest of
testator in the thing bequeathed.

3. ARDESHIR V. DADABHOY

In Ardeshir V Dadabhoy’s case, D was a settler who made a settlement. According to the
terms of settlement, D was to get during life; one-third each was to go to his sons A and
R. After D’s death, the trust property was to be divided into two equal parts. The net
income of each property was to be given to A and R for life and after their death to the
son’s of each absolutely. If A and R were each to pre-decease D without male issue, the
trust property went to the settler absolutely. The settler then took power to revoke or vary
the settlement in whole or in part of his own benefit. It was held that R’s son who was not
born either at the date of settlement or his death did not take any vested interest and the
gift to him was invalid. A’s son who was alive at these dates did not also take a vested
interest.

4. FRAMROZE DADABHOY MADON V. TEHMINA

Tehmina settled a sum of Rs. 47,000, representing the proceeds of sale of diverse
investments, made on her behalf by her father, Dadabhoy Sorabji Madon, upon trusts in
favor of herself, for life, and after her decease and subject to a power of appointment,
exercisable by will or codicil only, amongst her issue born during her lifetime; in trust for
all her children who being sons, "shall attain the age of 18 or being daughters shall attain
that age or marry under that age in equal shares." In default of issue there is a general

19
power of appointment with regard to part only of the trust funds to be exercised by will or
codicil, and, "subject to the foregoing trusts and powers"; the trustees are to hold the trust
funds in trust for the said Dadabhoy Sorabji Madon, his heirs, executors and assigns.

These arrangements, in favor of the issue of Bai Tehmina, have been held by the learned
Judge to be void by reason of Section 13 of the Transfer of Property Act, 1882, as have
also the subsequent trusts, with the result that a declaration has been made that there is a
resulting trust of the settled funds in favor of the settlor.

In coming to that conclusion the learned Judge held that the case of Sopher v.
Administrator General, Bengal , which is a decision of the Privy Council upon the trusts
of a will, declared to be void under Section 113 of the Indian Succession Act, 1925,
applied, and he followed a decision of Mr. Justice Blagden in the case of Ardeshir Baria
v. Dadabhoy Baria (1944) 47 Bom. L.R. 287, who also applied Sopher's case to the trusts
of a settlement. It was held by the Lordships that the decision in the Sopher’s case could
not be applied to the trusts of a settlement which were transfer inter-vivos. It was held
that the words ‘extend to the whole of remaining interest of the transferor in the property’
in sec.13 of the Transfer of Property Act were directed to the extent of the subject-matter
and to the absolute nature of the estate conferred and not to the certainty of vesting.

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REFERENCES

STATUTES

 Transfer of Property Act, 1882

 Indian Succession Act, 1925

CASES

 Girish Dutt V. Data Din AIR 1934 Oudh 34

 Ardeshir v Dadabhoy AIR 1945 Bom 395
 Sopher V Administrator General of Bengal AIR 1944 PC67
 Framroz Dadabhoy v Tahmina 49 Bom L.R.882
 Isaac Nissim Silas v. Official trustee of Bengal, AIR 1957 cal. 118
 T. Subramania Nadar v. T. varadharajan, AIR 2003 mad 364

BOOKS

 Dr. Avtar Singh, Transfer of Property Act, 2nd ed. 2009, Universal Law
Publishing Co.

 Dr. G.C.Bharuka, mulla transfer of property act 1882,10th ed., 2006, Lexis Nexis
Butterworths.
 G.P. Tripathi, Transfer of property Act, 1882, 17th ed. 2011, Central Law
Publication, Allahabad.
 Institutes of Roman Law, Translated by Ledlie. Second edition, XXII, 639.
Oxford, 1901.

OTHER SOURCES

 http://www.life.org.nz/abortion/abortionlegalkeyissues/rightsunbornchild/

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