The Legality of Foreign Military Activities in the Exclusive Economic Zone under UNCLOS

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. Coastal states seek to assert increasing control over their maritime zones while maritime states prioritize the freedom of navigation. This article examines the competing views on these issues in the context of the 2009 Impeccable incident between China and the United States that occurred in the South China Sea. The issue of military activities in the EEZ will continue to be a complex subject, without clear definitions in the nature and scope of permissible activity. As state practice evolves, the potential for hostilities is high, particularly in semi-enclosed sea areas such as the South China Sea. This article concludes that states should create dialogues and form agreements to help clarify the contours of military activity in the EEZ, focusing on mutual interests, interdependence, and coexistence rather than perceiving the ocean as a zero-sum resource. Author Affiliations 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). The author would like to thank the Merkourios Editorial Board and Dr. Alex Oude Elferink for his helpful comments on an earlier draft of this article. A rt ic le Merkourios International and European Security Law Vol. 28/74 22


A. The 2009 Impeccable Incident
In March 2009 in the South China Sea, five Chinese vessels surrounded the unarmed USNS Impeccable, a United States ('US') Navy ocean surveillance vessel, and ordered it to leave the area. 1 The Impeccable had been conducting routine seabed mapping and tracking submarines about seventy-five nautical miles (nm) south of China's Hainan Island. 2 Two of the Chinese vessels moved within eight meters of the US ship, forcing it to take collision-avoidance measures. 3The Impeccable withdrew from the area but returned the following day accompanied by a US guided missile destroyer for its protection. 4This incident raised tensions in Sino-American relations as both nations accused the other of violating international law. 5 The Pentagon protested the aggressive 'harassment' of the Chinese vessels while Beijing accused the US ship of illegally operating in China's Exclusive Economic Zone (EEZ). 6This issue is unlikely to be resolved because the two sides fundamentally disagree on what military activities are permissible in another state's EEZ. 7e Impeccable confrontation is a good example of the uncertainty and controversy regarding the legality of military operations in the EEZ.Did the United States have the right to conduct activities in China's claimed EEZ? Was China out of line to require prior notification and permission?What does the United Nations Convention on the Law of the Sea (UNCLOS or the Convention) permit and prohibit in terms of military activities in the EEZ?Unfortunately, the issue of the military uses of the oceans in peacetime raises many contentious questions and very few answers.

B. The Legal Question
This article examines the legal question of whether States may conduct military activities in another State's EEZ under UNCLOS.When, if ever, are such operations permissible?The analysis is limited to the military uses of the oceans in peacetime. 8This article will consider the text of UNCLOS, as well as the varying state practice regarding the issue.Finally, the article addresses the real-world implications of these questions in the context of the continuing tensions in the South China Sea.

A. UNCLOS -A Constitution for the Seas
On December 10, 1982, in Montego Bay, Jamaica, UNCLOS was presented for signature.Over 115 countries signed that same day. 9UNCLOS came into force on November 16, 1994, and has been broadly accepted by the international community. 10To date, 161 States and the European Union have joined the convention. 11CLOS is a comprehensive treaty that creates a legal regime governing the peaceful use of the ocean and its resources. 12NCLOS provides guidance on various maritime matters such as pollution, environmental protection, and resources rights. 13In many ways, UNCLOS has provided clarity and reliability in the maritime context, 14 however, it is either silent

Article
or ambiguous about issues concerning military operations and the use of force in the oceans. 15The Convention does not explicitly regulate military activities in the EEZ or the high seas, though Article 88 requires that 'the high seas shall be reserved for peaceful purposes.' 16

B. Development of the 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). 17This 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. 18CLOS provides for different maritime zones with varying substantive regimes.For instance, the coastal state has sovereignty over the territorial sea, 19 which extends up to 12 nm from the baseline. 20Foreign warships must follow the conditions of Article 19 for 'innocent passage' if they are to navigate through the territorial seas of a coastal state. 21Article 25 permits the coastal state to protect itself and 'take the necessary steps in its territorial sea to prevent passage which is not innocent.' 22On the other hand, all states equally enjoy the freedom of navigation and overflight in the high seas, 23 an area beyond national jurisdiction. 24Situated between these two substantive regimes is the EEZ, which is arguably the most complicated of the maritime zones in terms of regulation and enforcement. 25e 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). 26Asian 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.' 27During UNCLOS III, there was considerable debate regarding the EEZ's legal status. 28aritime powers maintained that the EEZ should have the traditional freedoms of the high seas, 29 while coastal states argued for more rights and control over the zone. 30The result is an EEZ that is a compromise between the varying positions. 31CLOS 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. 32The coastal state has the sovereign rights for the economic exploitation and exploration of all resources in the EEZ, including, for instance, energy production. 33The coastal state also has jurisdiction over artificial islands and installations, marine scientific research, and the protection and preservation of the marine environment. 34In 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. 35 does not mean sovereignty. 36Other states enjoy freedoms in the EEZ similar to those of the high seas, such as navigation and overflight. 37Article 58 outlines the rights and duties of other states in the EEZ and mandates a similar obligation upon maritime states to have 'due regard' to the rights and duties of the coastal state. 38Thus, articles 56 and 58 strike a balance between the interests of the coastal states, and the right to the freedom of navigation of all other states.The cross-reference to Articles 88 to 115 in Article 58 applies certain high seas provisions to the EEZ, so long as they are compatible with this regime. 39Therefore, Article 58(2) envisions that other states may need to engage in certain non-economic, high-seas activities in the EEZ, such as hot pursuit, counter-piracy efforts, assistance and rescue missions, and the suppression of drug trafficking. 40

C. 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. 41However, as a relatively new concept in international law, the specific scope of rights and responsibilities in the EEZ is dynamic and ever-evolving. 42UNCLOS 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. 43ome maritime powers support unfettered military activity in the EEZ by emphasizing the freedom of navigation. 44onversely, some coastal states object to military activity in their EEZ by expressing concern for their national security and their resource sovereignty. 45This 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.' 46 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. 47nce UNCLOS is meant to be a comprehensive 'package deal', states may not make reservations or exceptions to the Convention. 48Otherwise, parties to the treaty could effectively opt out of their convention obligations. 49Under 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.' 50 Some states have exercised their Article 310 right by making declarations on the issue of military activities in the EEZ. 51For 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. 52In their declarations, these states require consent before a foreign ship may conduct military activities. 53To illustrate, Brazil  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. 54ates 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. 55For 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. 56ese declarations demonstrate the sharp disagreement and variance in interpretation regarding the legality of conducting military activities in the EEZ of another country. 57spite 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. 58For 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.' 59The ICJ's findings in the Corfu Channel case were influential in the development of the law of the sea in the UNCLOS conferences. 60This finding is crucial since the freedom of navigation is the foundation for military operations at sea. 61 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[…]. 62fortunately, the issue of military activities in the EEZ remains ambiguous and unsettled.

D. 'For Peaceful Purposes'
UNCLOS repeatedly emphasizes that various maritime activities should be conducted 'for peaceful purposes.' 63Both the Preamble and Article 301, for instance, reinforce the peaceful uses of the oceans. 64Article 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. 65though some states have interpreted Article 301 to prohibit foreign military activities in the EEZ, 66 it does not follow that military activities are inherently non-peaceful.While Article 88, for example, reserves the high seas for peaceful purposes, 67 military maneuvers and exercises have traditionally been considered compatible with the freedom of the high seas. 68

E. '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. 69These 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. 70For 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. 71What 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. 72In 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.' 73 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.

A. The Impeccable Incident Revisited
Now that we have reviewed the relevant law, it is time to return to the Impeccable incident and examine the law in practice.China has ratified UNCLOS but the US has only signed it. 74As a non-party to the Convention, the US argues that the provisions are considered customary international law. 75After the confrontation between the US navy ship and the five Chinese vessels, the Pentagon protested by stating: We believe firmly that what that naval ship was doing in those international waters is not only fully consistent with international law, it is common practice.And we hope that the Chinese would behave in a similar way, that is, according to international law. 76spokesman from the Chinese Foreign Ministry responded: [T]he USNS Impeccable conducted activities in China's special economic zone in the South China Sea without China's permission […].We demand that the United States put an immediate stop to related activities and take effective measures to prevent similar acts from happening. 77ficials from both sides rejected each other's legal arguments. 78China argues that the military activities of the Impeccable are an 'abuse of rights' under Article 300 79 and that they constituted a non-peaceful threat of the use of force prohibited under Article 301. 80The 'abuse of rights' argument is meant to protest the United States' allegedly arbitrary use of China's EEZ. 81n the other hand, the United States continues to assert a 'complete right to unilateral, unlimited naval operations in foreign EEZs.' 82 What is legally permissible in the EEZ is most likely somewhere between these extremes.
It is difficult to comment on the legality of the Impeccable in China's claimed EEZ without knowing the exact circumstances of what the vessel was doing there.According to the US Navy's Military Sealift Command website, the Impeccable is an ocean surveillance ship that 'directly support[s] the Navy by using both passive and active low frequency sonar arrays to detect and track undersea threats.' 83 Much to China's irritation, the United States will most likely continue to assert the freedom of navigation and point to military activities in the EEZ as legitimate, non-resource related, and posing no direct threat to the coastal state. 84Meanwhile, China relies on Article 301 and demands that the United States respect its legal interests and security concerns. 85Ultimately it appears that the two nations remain markedly divergent in their interpretation of whether peacetime military activities such as what the Impeccable was engaged in are a threat to the territorial integrity or political independence of the coastal state.

B. The Difficulty in Discerning State Practice
In light of the ambiguity of treaty obligations under UNCLOS regarding military operations in the EEZ, it is useful to consult customary international law.However, state practice regarding such activity is as diverse as states themselves. 86Although all states possess sovereign equality under the UN Charter, states have differing, and at times conflicting, interests and various factors influence their perspective regarding military operations in the EEZ.For instance, a fledgling coastal state without a strong navy may not prioritize the freedom of navigation as much as a state with an advanced military would.In fact, The struggle to define the EEZ is a political tug-of-war involving a large number of states with dissimilar history, unequal resources, and different maritime interests.This diversity engenders an acute sensitivity about relative rights and privileges, and negotiations tend to end up being viewed through the lens of a zero-sum perspective. 87cording to some commentators, there is no reason why economic and military activities cannot coexist in a maritime zone. 88Nevertheless, as military technology continues to advance, 89 less developed states continue to make greater claims in the EEZ. 90As state practice regarding military operations in the EEZ continues to evolve in a dynamic system, national practice is inconsistent and remains in dispute. 91In many ways, the legal status of the EEZ will continue to develop through the interaction of competing interests and 'claim and counterclaim.' 92

C. The Way Forward
With such limited guidance from the text of UNCLOS and from state practice, what is the way forward for determining the scope of permissible military activity in the EEZ?Furthermore, what can be done to prevent hostilities and other incidents at sea? Seeking clarity from tribunals will be difficult since Article 298 has an opt-out clause where many states may exclude disputes regarding military activities from compulsory dispute resolution. 93In fact, many states have taken advantage of this option. 94It will be difficult to look for an authoritative legal interpretation regarding military activities in the EEZ if such a dispute is not presented before the ICJ or the International Tribunal for the Law of the Sea. 95Thus, the question of whether naval operations are permissible within the EEZ of a coastal state remains unclear.
Aside from dispute settlement, states could gain clarity regarding military activity in the EEZ from bilateral or regional arrangements.Such dialogue could promote clarity and potentially help preempt conflict. 96For instance, the former Soviet Union and the United States adopted a 'Joint Statement' providing for uniform interpretation of the right of innocent passage in the territorial sea. 97In the East China Sea, China and Japan have developed bilateral regimes for 'conflict avoidance' regarding fisheries and marine scientific research. 98These agreements may not resolve every issue, but they do certainly offer more clarity and could provide mechanisms to deal with situations where the law is uncertain.Another option would be to form regional agreements.In the 1990s, Indonesia used Association of Southeast Asian Nations as a venue for hosting informal talks aimed at conflict resolution and management in the South China Sea. 99Thus, individual states as well as regional organizations may have a role in clarifying the legality of military operations in the EEZ.There is the risk of regional diversification in state practice and interpretation; nevertheless, such arrangements could contribute to increased certainty regarding military uses of the oceans.These multi-state dialogues are particularly crucial at the moment as tensions continue to escalate in the South China Sea region. 100

IV. Conclusion
Military activities in the EEZ were a point of contention during UNCLOS III negotiations, and remain 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.Coastal states seek to assert increasing control over their maritime zones while maritime states prioritize the freedom of navigation.Military activity that is permissible will depend on many variables and the circumstances.Galdoresi and Kaufman (n 29) 301: 'A sufficiently dense network of such arrangements and understandings, followed by consistent practice, will ensure the vitality of customary norms.In the end, it is our view that this is an approach that will ensure the best balance among an ongoing network of lawful naval and military activities, stable international law, freedom of navigation for ocean-going commerce, and is an approach that will protect interests common to all in an internationally interdependent world.' The issue of military activities in the EEZ will continue to be a complex subject, without clear definitions in the nature and scope of permissible activity.As state practice evolves, the potential for hostilities is high, particularly in semi-enclosed sea areas such as the South China Sea.States should create dialogues and form agreements to help clarify the contours of military activity in the EEZ.They should focus on mutual interests, interdependence, and coexistence rather than perceiving the ocean as a zero-sum resource. 1022 Galdoresi and Kaufman (n 29) 300: 'A stable system of international law is good for trade, and a strong Navy, able to evenhandedly defend legal entitlements by its presence at sea, is good for a stable system of international law.The cooperative approach is the preferable approach.' 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.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.
' 71 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.76 JR Crook (ed), 'United States Protests Chinese Interference with US Naval Vessel, Vows Continued Operations' in Contemporary Practice of the United States Relating to International Law (2009) 103 Am J Int'l L 325, 351.See also US Department of Defense, 'DoD News Briefing with Geoff Morrell from the Pentagon' (11 March 2009) <http://www.defense.gov/Transcripts/Transcript.aspx?TranscriptID=4369> accessed 31 January 2012.
Maritime states cannot engage in naval activities without constraint, and coastal states should not unilaterally revoke certain high-seas freedoms.Both the coastal state and the maritime state should have mutual respect and 'due regard' for one another.10190Galdoresiand Kaufman (n 29) 288: 'It is often the less developed countries that make the strongest claims, seeking to use the law to achieve the exclusion and control they cannot yet ensure with weapons and technology.' See also Meyer (n 30) 250: 'The number of extended claims of jurisdiction is growing as developing countries claim greater rights to the exploitation of the ocean and demand a larger say in ocean affairs.The US historical approach to navigation and overflight has little meaning to this community of nations whose independence from colonial rule has been gained only within the past twenty years.From their perspective, repeated incursions into their waters by US naval forces, demonstrating freedom of navigation rights, could be seen as superpower "bullying."'91 Galdoresi and Kaufman (n 29) 285-86: 'National practice and legislation is varied and inconsistent in the implementation of the detailed EEZ mechanisms, and so does not provide a rule for naval operations […].State declaratory practice reflects a continuing effort by coastal States to retain control of coastal waters by legal exclusion-whether by claims of sovereignty, or extensive regulatory jurisdiction, or some combination amounting to quasi-sovereignty.'The Politics of the South China Sea: Territoriality and International Law' (2003) 34 Security Dialogue 7, 10 <http://community.middlebury.edu/~scs/docs/Burgess,%20Politics%20of%20the%20South%20China%20Sea-Territoriality%20and%20.pdf>accessed 30 January 2012.100 See eg, O Saleem, 'The Spratly Islands Dispute: China Defines the New Millenium' (1999) 15 Am U Int'l L Rev 527.101