Abstract

The adoption of the EEZ in the 1982 UNCLOS represents the culmination of an effort by some parts of the international community to separate “jurisdiction” over the natural resources in offshore waters from the “sovereignty” manifest in the territorial sea. It is clear that the EEZ is a zone that is neither territorial waters nor wholly high-seas. It is also a zone in which competencies are balanced between the need of coastal States to have sufficient authority to exploit and manage their economic resources and the need of all other States to retain high-seas navigation and communications freedoms and uses related to such freedoms. From South Korea's perspective, the EEZ is a sui generic zone in which military and intelligence activities are limited or not allowed without the consent of the coastal State. This is equally applicable in peace and war. Although several States stress that Article 58 of the 1982 UNCLOS permits such activities, increasing EW and IW capabilities may result in reinterpretation of certain provisions of the 1982 UNCLOS.

Keywords: EEZ; Key terms; Korean perspective

Article Outline

1. Origins and essence of the EEZs

2. Interpretation and application of key terms

2.1. Freedom of navigation and overflight, other international lawful uses of the sea and due regard

2.2. Peaceful purposes or uses

2.3. Military intelligence-gathering activities

2.4. Hostile intent or acts

2.5. Marine scientific research (MSR) and survey activities

3. Conclusions and recommendations

1. Origins and essence of the EEZs

The inclusion of the concept of the EEZ in the 1982 UNCLOS represented the culmination of a long effort by the international community to separate “jurisdiction” over the natural resources of offshore waters from “sovereignty” in the territorial sea. The coastal State exercises “sovereign rights” over the EEZ for the purpose of exploring and exploiting, managing and conserving its living and non-living resources and “jurisdiction” to the extent provided in the 1982 UNCLOS with regard to the establishment and use of artificial islands, installations and structures having economic purposes, marine scientific research (MSR) with limitations, and the protection and preservation of the marine environment (Table 1). However, it is clear that the EEZ is not part of the territorial regime of the coastal State as are internal waters and the territorial sea. Reinforcing the distinction between the territorial sea and the EEZ is paragraph 2 of Article 58, which states “Articles 88 to 115 [from the High-Seas part of the 1982 UNCLOS] and other pertinent rules of international law apply to the EEZ in so far as they are not incompatible with this Part.” Article 89, which is one of those articles so incorporated into the EEZ Part of the 1982 UNCLOS, states that “No State may validly purport to subject any part of the high-seas to its sovereignty.”

Table 1.

The rights of coastal States

Rights	Territorial sea	Contiguous zone	EEZ	Continental shelf
Sovereignty over living resources	○		○
Sovereignty for exploiting natural resources	○		○	○
Sovereignty over marine scientific research	○		○	○
Preservation of the environment	○		○
Prevention of infringement of customs and immigration laws	○	○
Sovereignty over passage	○
Other	○

Whether one considers the EEZ as part of the high-seas, as some authorities contend, or as an area that is sui generis, as contended by others, it is clear that it is a zone that is neither territorial seas nor wholly high seas. It is a zone in which competencies are balanced between the need of the coastal State to have sufficient authority to exploit and manage its economic resources (Article 56 (1)) and the need of all other States to retain high-seas navigation communications freedoms, and uses related to such freedoms (Article 58 (1)). Nevertheless, by defining the areas that are subject to coastal State sovereignty or the exercise of other forms of jurisdiction, this regime may have a significant effect on the exercise of both belligerents’ and neutrals’ rights during times of armed conflict. The meaning of key terms regarding the EEZ are thus very important.

Generally, the coastal State cannot unduly restrict or impede the exercise of the freedom of navigation in, and overflight of the EEZ. Since all ships and aircraft, including warships and military aircraft, enjoy the high-seas freedoms of navigation and overflight and other internationally lawful uses of the sea related to those freedoms, in and over those waters, the existence of an EEZ in an area of naval operations need not, of itself, be of operational concern to the naval commander.

2. Interpretation and application of key terms

The emergence of a “new” peacetime regime for the oceans, with the expansion of existing zones subject to national jurisdiction and the creation of new zones also subject to the same or similar forms of jurisdiction, has created problems in the adaptation of the traditional rules of military activities or armed conflict at sea to these new developments. However, the geographic and operational factors that determine the nature and scope of military activities in time of peace or armed conflict, and, in particular, the relationships between belligerent and neutral forces, make it uncertain as to whether such mechanical application of prior rules to new or expanded areas of national jurisdiction serves the best interests of either neutrals or belligerents, let alone the humanitarian objectives of the rules. Massive expansions of waters that are denied to belligerents for hostile intent or acts and for which neutral States have burdensome duties of surveillance and control are likely to increase beyond belligerents” powers to resist the temptation to violate such waters and to overtax the capabilities of neutral States to enforce their duties within them. The result may well be increased tension between neutral and belligerent States with the consequent danger of widening the area of conflict and drawing neutral States into it.

2.1. Freedom of navigation and overflight, other international lawful uses of the sea and due regard

It is broadly understood that other States have freedom of navigation and overflight in and over the EEZ on the basis of the non-absolute nature of such freedom. Article 58(1) describes these high-seas freedoms as follows:

In the exclusive economic zone, all States, whether coastal or land-locked, enjoy, subject to the relevant provisions of this Convention, the freedoms referred to in Article 87 of navigation and overflight and of the laying of submarine cables and pipelines, and 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.

As the United States Ambassador to the UNCLOS III and a former Secretary of Defense, Elliot Richardson, was more sensitive than most delegates to the naval dimension of the problem, which deserved special attention. Although his arguments were particularly concerned with the needs of the United States, they were also relevant to all other countries with an interest in deploying warships at some distance from their own coastlines. He stated the freedom of navigation as follows:

In the group which negotiated this language it was understood that the freedoms in question ... must be qualitatively and quantitatively the same as the traditional high-seas freedoms recognized by international law; they must be qualitatively the same in the sense that the nature and extent of the right is the same as the traditional high-seas freedoms; they must be quantitatively the same in the sense that the included uses of the sea must embrace a range no less complete and allow for future uses no less inclusive than traditional high-seas freedoms.

Except for the freedom of fishing, freedom of scientific research, and freedom to construct artificial islands and other installations, which are related to the exploration and exploitation of the resources of the EEZ, most coastal States consider that the EEZs navigational freedoms are identical to those enumerated in Article 87 as applicable in the high seas. Although Article 58 is not open-ended, as is Article 87 in which the enumeration of high-seas freedoms is preceded by the term inter alia, the addition of the phrase “and 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” in Article 58 seems to serve the same purpose. The balance between the rights of coastal States and other States in the EEZ is also reflected in the paragraphs of Articles 56 and 58 which require both coastal States (Article 56(2)) and other States (Article 58(3)) to have “due regard” to the rights and duties of other States and coastal States, respectively.

There are disagreements with regard to freedom of navigation and overflight relating to certain military activities or exercises in the EEZ. This discrepancy stems from disagreement over what kind of activities constitute “navigation and overflight.” Some argue that freedom of navigation and overflight is covered by “other internationally lawful uses of the sea” in Article 58(1). However, the exercise of freedom of navigation and overflight must not: (1) interfere with or endanger the sovereign right of the coastal State [Article 56(1)(a), 62, 77 and Part XII], (2) involve MSR without the consent of the coastal State, or in violation of the other provisions of the 1982 UNCLOS [Article 56(1)(b), 246(2) and Part XIII], (3) interfere with the rights of the coastal State with regard to the establishment and use of artificial islands, installations and structures [Article 56(1)(b), 60 and 80], and (4) involve activities that constitute a threat or use of force in a manner inconsistent with the UN Charter [Article 301].

But it is also generally agreed that freedoms referred to in Article 87 include the high-seas freedoms of navigation and overflight, and internationally lawful uses of the sea related to such high-seas freedom, including military operations. The following five categories are “other internationally lawful uses of the sea” related to such freedoms: (1) military maneuvers, (2) uses of devices, installations and structures that are attached to the seabed, (3) military intelligence gathering activities, (4) use of expendable marine instruments, and (5) survey activities.

But there is some disagreement regarding these categories. Although warships, in principle, enjoy the freedom to carry out their military missions in foreign EEZs, they have three obligations: (1) the duty to refrain from the unlawful threat or use of force, (2) the duty to have “due regard” to the rights of others to use the sea, and (3) the duty to observe applicable obligations under other treaties or rules of international law. The same requirements apply in the EEZ with the addition of an obligation to have “due regard to the rights and duties of the coastal State” in the EEZ.

This is equally applicable in times of both peace and war. Indeed, the juridical nature of the zone does not change with the transition from peace to war. There is thus no basis for concluding that, other than the duty to have “due regard” to the rights of the coastal State for the exploitation of the economic resources of the zone, the conduct of hostilities by belligerent States in the EEZ of a neutral State is subject to greater restraints than is their conduct on the high-seas. And, there is clearly no basis for concluding from the terms of the 1982 UNCLOS that the EEZ is to be equated to the territorial sea insofar as the application of the rules of neutrality are concerned.

Nevertheless, there have been suggestions from States and in the literature that some States regard the regime of the EEZ as encompassing the rights of coastal States to control military operations in the EEZ. In addition to such assertions concerning military maneuvers in the EEZ, Brazil also requested the Legal Committee of the International Civil Aviation Organization (ICAO) to hold that the rules of overflight of the EEZ were the same as for those over land territory and the territorial sea. The Legal Committee rejected this request, concluding that such a position was totally incompatible with the provisions of the 1982 UNCLOS, which equate the EEZ with the high-seas insofar as freedom of overflight is concerned. Thus the EEZ may be equated to the high-seas insofar as the application of the law of neutrality is concerned. However, the provisions of the 1982 UNCLOS do not specifically authorize other States to carry out military exercises or maneuvers within the EEZ, particularly when these activities involve the use of weapons or explosives, without the prior knowledge and consent of the coastal State.

2.2. Peaceful purposes or uses

There is obviously some room for disagreement as to the precise status of “military exclusion.” Some argue that the EEZ regime does not allow States to hold weapons tests within the EEZs of other States. However, the prevailing view to date—though it could change—is that States have the right to all the traditional high-seas uses except where those uses are explicitly prohibited by international law. All this makes Article 88 (Reservation of the High Seas for Peaceful Purposes) sound like abstract rhetoric. The EEZ, of course, is not “high-seas,” and this leads to a contradiction in the 1982 UNCLOS, because it could be argued that the 1982 UNCLOS has strengthened the duty to maintain the peaceful uses of the oceans in those areas designated “high-seas” as opposed to those designated EEZ. There is no specific commitment to “peaceful purposes” in the latter. This distinction was presumably not intentional on the part of the framers of the 1982 UNCLOS.

The controversy over the peaceful uses or purposes clause has been mainly whether and where it includes prohibition or limitation of all military activities, or if not, what kind of military activities are prohibited. During the UNCLOS III negotiations, the United States and the Soviet Union avoided specific discussion of the limitation of military activities. After the adoption of the 1982 UNLCOS, the United States officially confirmed that the 1982 UNCLOS does not prohibit military activities consistent with international law. It may be concluded that the peaceful uses or purposes clauses prohibit only those activities that threaten or use force, which is inconsistent with the UN Charter. This also applies to MSR; indeed nothing in the Convention excludes the application of Articles 88 and 301 to MSR.

2.3. Military intelligence-gathering activities

According to the 1982 UNCLOS, the freedom of navigation, overflight and laying of submarine cables exists in the EEZ. However, the Treaty and international law specify at the same time that the rights of the coastal State should be taken into account. But intelligence-gathering activities have been regarded as part of the exercise of freedom of the high-seas (Article 58(1)) by all major maritime powers, such as the United States and France. They have generally been undertaken without protest from the coastal State, until they became excessively provocative.

There are two different views on such activities. One is that the 1982 UNCLOS permits the use of the ocean in a somewhat comprehensive manner. In particular, Article 58(1) contains a context that is not repeated in Article 87–115, and one may argue that intelligence-gathering activities are allowed if they do not affect the marine environment or resources. Another view is that there is no specific article in the 1982 UNCLOS that permits military intelligence-gathering activities in the EEZ. In particular, many countries that have weak maritime forces, such as Brazil, Malaysia, Pakistan, and Uruguay, hold that the 1982 UNCLOS does not authorize military activities in the EEZ, especially the use of explosives. These different interpretations stem from contrasting legal views: one argues that what is not expressly prohibited is permitted, and the other what is not expressly permitted is not allowed.

Accordingly, military and intelligence-gathering activities are facing increasing scrutiny particularly given the increasing EW capabilities and related IW technologies. The 1982 UNCLOS does not specifically include these new actions as “other internationally lawful uses of the sea” related to the “freedom of navigation and overflight.” Any new initiative to change or reinterpret the provisions of the 1982 UNCLOS should consider these new EW and IW technologies.

2.4. Hostile intent or acts

The term “hostile intent or hostile acts” is not used in the 1982 UNCLOS. The “Standing Rules of Engagement for US Forces” defines a “hostile act” as an attack or other use of force by a foreign force or terrorist unit (organization or individual) against the United States…,” and “hostile intent” as the threat of imminent use of force by a foreign force or terrorist unit (organization or individual) against the United States… .” Hostile actions by naval forces may be conducted in, on or over: (1) the land territory, (2) the territorial sea and internal waters, (3) the EEZ and continental shelf, (4) the archipelagic waters of belligerent States, (5) the high seas, and (6) the EEZ and the continental shelf of neutral States. In addition, parties to the conflict are encouraged to agree that no hostile actions will be conducted in marine areas containing rare or fragile ecosystems, or the habitat of depleted, threatened or endangered species or other forms of marine life.

However, China considers certain actions in its EEZ as hostile intent or acts, e.g., (1) military reconnaissance activities, which are interpreted as an electronic invasion and a threat to the coastal State, (2) navigation of military vessels or flying of aircraft across the path of the coastal State's vessels or aircraft, (3) carrying out military activities or deploying forces, (4) carrying out close observation or simulated attack, and (5) entrance of a submarine into the EEZ or their carrying out of a simulated attack therein without permission of the coastal State. Some of these positions, such as the prohibition of navigation of submarines are inconsistent with the 1982 UNCLOS.

2.5. Marine scientific research (MSR) and survey activities

Coastal States may regulate MSR conducted in the oceans, including in the EEZ and on the continental shelf under their jurisdiction. MSR includes activities undertaken in the ocean and coastal waters to expand knowledge of the marine environment for peaceful purposes, and includes oceanography, marine biology, and geological/geophysical surveying, as well as other activities with scientific purpose.

There are two kinds of survey activities: hydrographic surveys and military surveys. The purpose of a hydrographic survey is to obtain information in coastal or relatively shallow areas for the purpose of making navigational charts and similar products to enhance the safety of navigation. A hydrographic survey may include measurements of the depth of the water, configuration and nature of the sea bottom, direction and force of currents, heights and times of tides, and hazards to navigation. The purpose of military surveys is to collect marine data for military purposes. A military survey may include collection of oceanographic, marine geological, geophysical, chemical, biological, acoustic, and related data. Although the coastal State cannot regulate hydrographic surveys or military surveys conducted beyond its territorial sea, nor can it require advance notification of such activities, coastal State consent must be obtained in order to conduct MSR in its EEZ.

3. Conclusions and recommendations

Subject to the duty of impartiality, and under such regulations as it may establish, a neutral State may, without jeopardizing its neutrality, permit “innocent passage” through its territorial sea, and where applicable, its archipelagic waters, by warships and prizes of belligerent States. For the purpose of exercising the right of innocent passage, the warship or prize may employ pilots of the neutral State. Belligerent warships and military aircraft may exercise the right of transit passage through neutral international straits and archipelagic sea-lane passage through neutral archipelagic waters. While within neutral waters comprising an international strait or an archipelagic sealane, belligerent naval forces cannot carry out any hostile acts.

Subject to other applicable rules of the laws of peacetime or armed conflict at sea, hostile operations by naval forces may be conducted on the high seas. For this purpose, the high-seas exclude the EEZ and the waters and airspace above the continental shelf. The provisions of the 1982 UNCLOS do not clearly permit other States to carry out military exercises or maneuvers in the EEZ.

When naval forces conduct hostile operations within the EEZ or the waters and airspace above the continental shelf of a neutral State, the belligerent States shall have “due regard” for the rights and duties of the coastal State for the exploitation of the economic resources of the EEZ and the continental shelf. They shall, in particular, respect the neutral State's artificial islands, installations, structures, and safety zones. Within neutral waters, hostile acts by belligerent forces are prohibited. A neutral State may exercise such surveillance and enforcement measures, including military surveys, to prevent violation of its neutral waters by belligerent forces. Hostile acts include: (1) attack or seizure of enemy warships or military aircraft, (2) laying of mines, (3) search or capture, (4) detention of a prize or establishment of a prize court, and (5) use as a base of operations. A neutral State should be able or willing to enforce its neutral obligations with respect to hostile military activities by belligerent naval forces within its neutral waters, and the opposing belligerent may use such force as is necessary within such neutral waters to protect its own forces and to terminate the violation of neutral waters.

These are my personal views and do not represent the views of the Republic of Korea Navy or Government.
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