During negotiations for the United Nations Convention on the Law of the Sea (UNCLOS), military activities in another state’s Exclusive Economic Zone (EEZ) were a point of contention. Currently, the issue remains controversial in state practice. UNCLOS attempts to balance the differing interests of coastal and maritime states, but is silent or ambiguous on the legality of military operations in foreign EEZs.
By Jing Geng
On December
10, 1982, in Montego Bay, Jamaica, United Nations Convention on the Law of the Sea (UNCLOS) was presented for signature. Over 115
countries signed that same day.[1] UNCLOS came into force on November 16, 1994,
and has been broadly accepted by the international community.[2]To date, 161
States and the European Union have joined the convention.[3]
Image Attribute: UNCLOS Maritime and Airspace Zones /
Source: Batongbacal and Baviera (2013) via AMTI CSIS
UNCLOS is a
comprehensive treaty that creates a legal regime governing the peaceful use of
the ocean and its resources.[4] UNCLOS provides guidance on various maritime
matters such as pollution, environmental protection, and resources rights.[5] In
many ways, UNCLOS has provided clarity and reliability in the maritime
context,[6] however, it is either silent
Development of Exclusive Economic Zone (EEZ):
In some ways,
the law of the sea has always had a tension between states supporting the
doctrine of an open sea (mare liberum) and states that seek control over a more
closed sea (mare clausum).[9] This struggle has been continuous throughout the
evolution of the law of the sea and many UNCLOS provisions reflect this balance
between coastal state and maritime state interests.[10]
UNCLOS
provides for different maritime zones with varying substantive regimes. For
instance, the coastal state has sovereignty over the territorial sea,[11] which
extends up to 12 nm from the baseline.[12] Foreign warships must follow the
conditions of Article 19 for ‘innocent passage’ if they are to navigate through
the territorial seas of a coastal state.[13] Article 25 permits the coastal state
to protect itself and ‘take the necessary steps in its territorial sea to
prevent passage which is not innocent.’[14] On the other hand, all states equally
enjoy the freedom of navigation and overflight in the high seas,[15] an area beyond
national jurisdiction.[16] Situated between these two substantive regimes is the
EEZ, which is arguably the most complicated of the maritime zones in terms of
regulation and enforcement.[17]
The concept of
an EEZ developed early in the course of negotiations during the third United
Nations Conference on the Law of the Sea (UNCLOS III).[18] Asian and African states
adopted the 1972 Addis Ababa Declaration recognizing the right of a coastal
state to establish an EEZ up to 200 nm in which ‘the coastal state would
exercise permanent sovereignty over all resources without unduly hampering
other legitimate uses of the sea, including freedom of navigation, of
overflight and laying cables and pipelines.’[19] During UNCLOS III, there was
considerable debate regarding the EEZ’s legal status.[20] Maritime powers
maintained that the EEZ should have the traditional freedoms of the high
seas,[21] while coastal states argued for more rights and control over the
zone.[22] The result is an EEZ that is a compromise between the varying
positions.[23]
UNCLOS Article
56 establishes the substantive regime of the EEZ. This maritime zone begins
where the territorial sea ends and is to extend no more than 200 nm from the
baseline.[24] The coastal state has the sovereign rights for the economic
exploitation and exploration of all resources in the EEZ, including, for
instance, energy production.[25] The coastal state also has jurisdiction over
artificial islands and installations, marine scientific research, and the
protection and preservation of the marine environment.[26] In its regulation of
the EEZ, the coastal state is obliged to give ‘due regard’ to the rights and
duties of other states and must act in a ‘manner compatible’ with the
Convention.[27] It is important to note that ‘sovereign rights’
Varying State Interpretations:
Since the
conclusion of UNCLOS in 1982, the general concept of an EEZ and the right for a
coastal state to exercise sovereign rights over economic activity and resources
have become customary international law.[33] However, as a relatively new concept
in international law, the specific scope of rights and responsibilities in the
EEZ is dynamic and ever-evolving.[34] UNCLOS does not clarify the specific issue
of military activities in the EEZ and a major source of contention continues to
be whether maritime states may unilaterally conduct certain military operations
in the EEZ of the coastal state without permission.[35] Some maritime powers
support unfettered military activity in the EEZ by emphasizing the freedom of
navigation.[36] Conversely, some coastal states object to military activity in
their EEZ by expressing concern for their national security and their resource
sovereignty.[37] This divergence in perspective regarding the legality of foreign
military activities in the EEZ is partly due to varying interpretations of Article
58, which permits maritime states to engage in ‘other internationally lawful
uses of the sea related to these freedoms, such as those associated with the
operation of ships, aircraft and submarine cables and pipelines, and compatible
with the other provisions of this Convention.’[38] Thus, nations such as the
United States perceive this provision to permit naval operations in the EEZ as
an activity ‘associated with the operation of ships’ and more generally, as
protected within the scope of the freedom of navigation.[39]
Since UNCLOS
is meant to be a comprehensive ‘package deal’, states may not make reservations
or exceptions to the Convention.[40] Otherwise, parties to the treaty could
effectively opt out of their convention obligations.[41] Under Article 310,
States retain the right to make declarations, though such statements are
illegitimate if they ‘purport to exclude or to modify the legal effect of the
provisions of this Convention in their application to that State.’[42] Some
states have exercised their Article 310 right by making declarations on the
issue of military activities in the EEZ.[43] For instance, Brazil, Bangladesh,
Cape Verde, Malaysia, India, and Pakistan have all expressed concern over the
ability of foreign military vessels to engage in certain activities within the
EEZ.[44] In their declarations, these states require consent before a foreign
ship may conduct military activities.[45] To illustrate, Brazil declared in 1988:
The Brazilian
Government understands that the provisions of the Convention do not authorize
other States to carry out military exercises or manoeuvres, in particular those
involving the use of weapons or explosives, in the exclusive economic zone
without the consent of the coastal State.[46]
States such as
Italy, Germany, the Netherlands and the United Kingdom have protested these
interpretations as unduly restrictive on navigational freedoms and as
inconsistent with Article 310 and UNCLOS.[47] For example, the Netherlands
declared in 1996:
The Convention does not authorize the
coastal State to prohibit military exercises in its exclusive economic zone.
The rights of the coastal State in its exclusive economic zone are listed in
article 56 of the Convention, and no such authority is given to the coastal
State. In the exclusive economic zone all States enjoy the freedoms of
navigation and overflight, subject to the relevant provisions of the
Convention.[48]
These
declarations demonstrate the sharp disagreement and variance in interpretation
regarding the legality of conducting military activities in the EEZ of another
country.[49]
Despite the
ambiguity in the language of UNCLOS and the divergence in interpretation of the
text, there is some evidence that the Convention did not intend to broadly
exclude peacetime military operations in the EEZ.[50] For instance, the 1949
International Court of Justice (ICJ) Corfu Channel decision refers to the
freedom of navigation of warships in peacetime as a ‘general and
well-recognized principle.’[51] The ICJ’s findings in the Corfu Channel case were
influential in the development of the law of the sea in the UNCLOS
conferences.[52] This finding is crucial since the freedom of navigation is the
foundation for military operations at sea.[53] However, the Court’s decision did
not specify the scope of the rights included in the freedom of navigation of
warships. During UNCLOS III, the President of the Conference, Tommy T.B. Koh,
commented on the question of military activities in the EEZ by stating in 1984:
The solution in the Convention text is very
complicated. Nowhere is it clearly stated whether a third state may or may not
conduct military activities in the exclusive economic zone of a coastal state.
But, it was the general understanding that the text we negotiated and agreed
upon would permit such activities to be conducted. I therefore would disagree
with the statement made in Montego Bay by Brazil, in December 1982, that a
third state may not conduct military activities in Brazil’s exclusive economic
zone[…].[54]
Unfortunately,
the issue of military activities in the EEZ remains ambiguous and unsettled.
“For Peaceful” Purposes:
UNCLOS
repeatedly emphasizes that various maritime activities should be conducted ‘for
peaceful purposes.’[55] Both the Preamble and Article 301, for instance,
reinforce the peaceful uses of the oceans.[56] Article 301 for ‘Peaceful uses of
the seas’ echoes Article 2(4) of the United Nations Charter by stating:
In exercising their rights and performing
their duties under this Convention, States Parties shall refrain from any
threat or use of force against the territorial integrity or political
independence of any State, or in any other manner inconsistent with the
principles of international law embodied in the Charter of the United
Nations.[57]
Although some
states have interpreted Article 301 to prohibit foreign military activities in
the EEZ,[58] it does not follow that military activities are inherently
non-peaceful. While Article 88, for example, reserves the high seas for
peaceful purposes,[59] military maneuvers and exercises have traditionally been considered
compatible with the freedom of the high seas.[60]
Due Regard’ for Rights and Duties
In tandem,
Articles 56 and 58 mandate that coastal and maritime states shall mutually
respect each other’s rights and duties in the EEZ.[61] These articles are meant
to balance the interests of various states in the EEZ. However, ‘due regard’ is
not defined in the Convention and is open to interpretation.[62] For instance,
proponents of the legality of military activities in the EEZ argue that such
actions do not interfere with the economic activity of a nation and thus cannot
be regulated by the coastal state.[63] What regard is due will inevitably depend
on the circumstances, for instance, a military vessel conducting weapons tests
may need to take measures to ensure the safety of maritime navigation in the
vicinity.[64] In cases where the extent of a state’s legal rights in the EEZ is
uncertain, Article 59 provides that the conflict in interests ‘should be
resolved on the basis of equity and in the light of all the relevant
circumstances, taking into account the respective importance of the interests
involved to the parties as well as to the international community as a
whole.’[65] Thus, circumstances matter and the implication is that there are many
variables in determining whether certain military activities are permissible in
the EEZ of a state, such as the scope and nature of the activity, the proximity
of the vessel to the coastal state, and the impact on the marine environment.
About The Author:
Jing Geng, Utrecht
University School of Law, LL.M. Candidate Public International Law (2012);
Washington University School of Law, J.D. (2011); Washington University College
of Arts & Sciences, B.A. Psychology (2008).
Publication Details:
This article is an excerpt from a technical paper, titled “The Legality of Foreign Military Activities in the Exclusive Economic Zone under UNCLOS” published at Merkourios 2012 – Volume 28/Issue 74, Article, pp. 22-30. URN: NBN:NL:UI:10-1-112848 ISSN: 0927-460X URL: www.merkourios.org Publisher: Igitur, Utrecht Publishing & Archiving Services Copyright: this work has been licensed by the Creative Commons Attribution License (3.0)
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References:
[1] JA Duff,
‘The United States and the Law of the Sea Convention: Sliding Back from
Accession and Ratification’ (2005) 11 Ocean and Coastal LJ 1, 6.
[2] United
Nations Convention on the Law of the Sea – Current Status accessed
30 January 2012.
[3] United Nations
Convention on the Law of the Sea – Current Status (n 10).
[4] United
Nations Convention on the Law of the Sea, 10 December 1982, 1833 UNTS 397
Overview and full text accessed
30 January 2012.
[5] DG
Stephens, ‘The Impact of the 1982 Law of the Sea Convention on the Conduct of
Peacetime Naval/Military Operations’ (1998) 29 Cal W Int’l LJ 283.
[6] ibid.
[7] ibid.
[8] M Lehto,
‘Restrictions on Military Activities in the Baltic Sea – A Basis for a Regional
Regime?’ (1991) 2 Finnish YB Int’l L 38, 45; see also art 88 United Nations
Convention on the Law of the Sea (UNCLOS) 10 December 1982, 1833 UNTS 397.
[9] CE Pirtle,
‘Military Uses of Ocean Space and the Law of the Sea in the New Millennium’
(2000) 31 Ocean Dev and Int’l L 7, 11.
[10] ibid.
[11] Subject to
the right of innocent passage and transit passage of foreign vessels. See
UNCLOS, Arts 17 and 38 respectively.
[12] UNCLOS, Art
3.
[13] UNCLOS, Art
19.
[14] UNCLOS, Art
25.
[15] UNCLOS, Art
87.
[16] UNCLOS, Art
89.
[17] See eg, DR
Rothwell and T Stephens, The International Law of the Sea (Hart Publishing,
Portland 2010) 428.
[18] S Mahmoudi,
‘Foreign Military Activities in the Swedish Economic Zone’ (1996) 11 Int’l J
Marine and Coastal L 365, 366.
[19] ibid 367.
[20] ibid 366.
‘Since the advent of the EEZ in 1971 there has been contrast in the views of
different states about the legal status of the zone, the balance of rights and
duties, and particularly about the exercise of the so-called residual rights
i.e. the rights which are not expressly attributed in the convention either to
the coastal state or the flag state. It is not surprising, therefore, that the
relevant provisions in the 1982 LOS Convention are not interpreted uniformly.’
[21] GV
Galdoresi and AG Kaufman, ‘Military Activities in the Exclusive Economic Zone:
Preventing Uncertainty and Defusing Conflict’ (2001) 32 Cal W Int’l LJ 253,
254, ‘It is not a part of the high seas, although high-seas-like freedom exists
there with respect to navigation. EEZ claims extract approximately 30 to 36 per
cent of the world’s oceans from waters traditionally considered high seas.’
[22] Commander
JC Meyer, USN, ‘The Impact of the Exclusive Economic Zone on Naval Operations’
(1992) 40 Navak L Rev 241.
[23] ibid 241.
[24] UNCLOS, Art
57.
[25] UNCLOS, Art
56.
[26] UNCLOS, Art
56.
[27] UNCLOS, Art
56.
[28] Pirtle (n
17) 30.
[29] Lehto (n
16) 48.
[30] UNCLOS, Art
58.
[31] UNCLOS, Art
58(2).
[32] JM Van
Dyke, ‘Military ships and planes operating in the exclusive economic zone of
another country’ (2004) 28 Marine Policy 29, 36.
[33] Galdoresi
and Kaufman (n 29) 285.
[34] ibid 254.
[35] Rothwell
and Stephens (n 25) 284.
[36] See eg, the
United States Navy’s Freedom of Navigation Program as described in WJ Aceves,
‘The Freedom of Navigation Program: A Study of the Relationship Between Law and
Politics’ (1995) 19 Hastings Int’l & Comp L Rev 259.
[37] M Valencia,
‘Intelligence Gathering, the South China Sea, and the Law of the Sea’
(Nautilius Institute, 30 August 2011) accessed
30 January 2012. See also MJ Valencia and Y Amae, ‘Regime Building in the East
China Sea’ (2003) 34 Ocean Dev and Int’l L 189.
[38] UNCLOS, Art
58(1).
[39] Y Song,
‘The PRC’s Peacetime Military Activities in Taiwan’s EEZ: A Question of
Legality’ (2001) 16 Int’l J Marine and Coastal L 625, 635, ‘Specifically, the
U.S. interprets UNCLOS Art 58(1) to permit “military activities such as task
force maneuvering, flight operations, military exercises, naval survey,
information gathering, and weapons testing and firing.”’ ibid 636.
[40] UNCLOS, Art
309.
[41] Van Dyke (n
40) 30.
[42] UNCLOS, Art
310.
[43] UNCLOS, Art
310 for ‘Declarations and statements’, ‘Article 309 does not preclude a State,
when signing, ratifying or acceding to this Convention, from making
declarations or statements, however phrased or named, with a view, inter alia,
to the harmonization of its laws and regulations with the provisions of this
Convention, provided that such declarations or statements do not purport to
exclude or to modify the legal effect of the provisions of this Convention in
their application to that State.
[44] See
generally United Nations Convention on the Law of the Sea: Declarations and
Statements accessed
30 January 2012.
[45] UNCLOS
Declarations and Statements (n 52).
[46] Brazil
(1988), UNCLOS Declarations and Statements (n 52).
[47] UNCLOS
Declarations and Statements (n 52).
[48] The
Netherlands (1996), UNCLOS Declarations and Statements (n 52).
[49] Van Dyke (n
40) 29.
[50] Van Dyke (n
40) 31.
[51] Case
concerning Corfu Channel (United Kingdom v Albania) [1949] ICJ Rep 4.
[52] Rothwell
and Stephens (n 25) 267-68: ‘The ICJ’s finding that the freedom of navigation
was enjoyed by warships in peacetime was subsequently reflected in
deliberations at UNCLOS I and III and in both the Geneva Conventions and the
LOSC […]. That it was considered a general principle further elevates its
significance and needs to be taken into account when interpreting the
international law of the sea concerning navigation by warships.’
[53] ibid 267.
[54] Van Dyke (n
40) 31.
[55] Rothwell
and Stephens (n 25) 266: ‘This is reflected not only in Article 301, but is
restated in numerous provisions throughout the convention including that the
high seas are reserved for peaceful purposes (LOSC, Art 88), that the use of
the Area is exclusively for peaceful purposes (LOSC, Art 141), and that marine
scientific research is to be carried out exclusively for peaceful purposes
(LOSC, Art 240). Consistent with these articles and the Preamble, the
convention also emphasizes that passage in the territorial sea which is
‘prejudicial to the peace’ is inconsistent with the LOSC and coastal states may
respond accordingly (LOSC, Art 19).’
[56] UNCLOS (n
16) Preamble: ‘Recognizing the desirability of establishing through this
Convention, with due regard for the sovereignty of all States, a legal order
for the seas and oceans which will facilitate international communication, and
will promote the peaceful uses of the seas and oceans, the equitable and
efficient utilization of their resources, the conservation of their living
resources, and the study, protection and
preservation of the marine environment.’
[57] UNCLOS (n
16) Art 301. See also Art 2(4) United Nations, Charter of the United Nations
(24 October 1945) 1 UNTS XVI.
[58] UNCLOS
Declaration and Statements (n 52).
[59] UNCLOS (n
16) art 88.
[60] Valencia (n
45). See also Francesco Francioni, ‘Peacetime Use of Force, Military
Activities, and the New Law of the Sea’ (1985) 18 Cornell Int’l LJ 203, 222:
‘The term ‘peaceful purposes’ did not, of course, preclude military activities
generally. The United States had consistently held that the conduct of military
activities for peaceful purposes was in full accord with the Charter of the
United Nations and with the principles of international law. Any specific
limitation on military activities would require the negotiation of a detailed
arms control agreement.’
[61] UNCLOS (n
17) Arts 56 and 58.
[62] Galdoresi
and Kaufman, (n 29) 273: ‘As agreed upon, however, with residual rights
unassigned and the issue left in the balance, and with each side required to
exercise its rights in the EEZ with due regard for the rights of the other, the
regime appeared ambiguous. These provisions left any undefined rights
unassigned, and gave no hint as to how to weigh the balance in settling any
dispute over such assignment. Moreover, these provisions, while requiring ‘due
regard,’ did not define just what regard is due, leaving that difficult and
dangerous question on the table, with the answer very much dependent upon the
eye of the beholder.’
[63] Meyer (n
30) 246: ‘[A]rticle 58’s stipulation that states “shall comply with the laws
and regulations adopted by the coastal State” in its EEZ, relates to activities
for which the coastal state exercises sovereign rights and jurisdiction under
the provisions of part V of the 1982 Convention relative to the EEZ. Those
activities are economic in nature and are not applicable to the conduct of
warships in the coastal state’s EEZ.’
[64] Rothwell
and Stephens (n 25) 280.
[65] UNCLOS (n
16) Art 59
