|8 of 13|
|Full Text + Links|
|·Full Size Images|
|PDF (163 K)|
|Save as Citation Alert|
An Indian perspective
E-7/11, Vasant Vihar, New Delhi 110 057, India
Available online 24 November 2004.
The 1982 UNCLOS does not curb military activities in foreign EEZs. By specifically prohibiting certain activities in the territorial sea, it follows that such activities are permissible outside of it. Thus, the “peaceful purposes” clause is only a policy goal. However, due to new threats and technological advances, the authority, capability and jurisdiction of coastal States is being enhanced. Thus guidelines are needed to avoid certain contradictions.
Keywords: EEZ regime; Key terms; An Indian perspective
The adoption of the 1982 UNCLOS and its coming into force on 16th November 1994 constitute significant turning points in the maritime history of the world. Among the many innovative and delicately balanced provisions of the Convention is the concept of the EEZ. The concept is primarily resource-oriented and was an attempt to formulate a new jurisdictional zone, dictated by the change in the geography of international law making and the bewildering impact of modern technology. Indeed, the EEZ regime attempted to accommodate two competing interests: the interest of coastal States for greater control over their offshore resources versus the perceived need of maritime powers to maintain their traditional freedom of action in waters beyond the territorial sea. Article 56 of the 1982 UNCLOS specifies the rights and duties of the coastal States, Article 58 deals with the rights and duties of other States in the EEZ and Article 59 touches upon the residual rights in the zone. The rapid spread of national legislation unilaterally establishing the EEZ, in many cases even before the Convention was adopted, testified to the universal recognition of this institution in the law of the sea.
To one who participated in the negotiations, the recent incidents and controversy regarding navigation rights and the limits on foreign military and intelligence gathering activities in the EEZ are not surprising. The Convention bristles with ambiguities and uncertainties which can and do generate international disputes. During the Third UN Conference on the Law of the Sea the major maritime powers chose not to face the problems squarely and instead evaded the issues. But these problems remain. Many of the delegates to the Conference had, at several stages of the negotiations in the Second Committee, felt that such issues would emerge, and that the world seemed to be moving towards a period of regulatory uncertainty. This was particularly germane when negotiations were conducted on the passage of foreign warships through the territorial sea; the nature of the EEZ; and the “peaceful purposes” clauses of the Convention.
Relatively little attention was given to passage of foreign warships through the territorial sea in the Fourth session of the Conference because of the perceived vehement opposition of the major maritime powers. Two formal amendments were moved at the concluding session; one by the delegation of Gabon proposing the inclusion in the Convention of a requirement of prior authorization and notification for the passage of foreign warships through the territorial waters of a coastal State. The second proposal was co-sponsored by 30 states and proposed the addition of the word “security” after the word “immigration” in paragraph 1(h) of Article 21 of the Convention. There was no doubt in the minds of the delegations present that if either of the two amendments had been put to a formal vote, it would have received the requisite majority for adoption. However, using behind the scenes diplomacy, the major maritime powers were able to prevent a formal vote on the two amendments. Indeed, the proposals were later withdrawn by the sponsors on the condition that the President of the Conference would make the following statement as part of the record of the Conference.
Almost all the sponsors of the 30-nation Article 21 amendment have made qualifying statements when signing or ratifying the Convention, arrogating to themselves the right to adopt measures to safeguard their security interests, and citing as authority the above-quoted statement of the President.
Although sponsors of the amendment (A/CONF.62/L.117) had proposed it with a view to clarify the text of the convention, in response to the President's appeal, they had agreed not to press for a vote, without prejudice to the right of coastal States to safeguard their security interests in accordance with Articles 19 and 25 of the convention.
The debate on the nature of the EEZ elicited deep interest, virtually acquiring an almost mystical political aspect identified with the national aspirations of many States, coastal and non-coastal, developing and developed. One major group, the “territorialists”, envisioned the zone as an extension of national jurisdiction in which the coastal States would enjoy sovereignty with certain limitations. In contrast, the maritime powers led by the United States and the then Soviet Union wanted the zone to remain part of the high seas with some rights and privileges being granted to coastal States over offshore resources. The impasse was finally resolved by a representative 15-State Negotiating Group headed by the Mexican delegate, Ambassador Castaneda, that characterized the EEZ as neither high seas nor territorial sea but as a zone “sui generis”. This was first incorporated in the Informal Composite Negotiating Text (ICNT) and later in the Convention.
The struggle to define the EEZ was a political tug of war involving a large number of States with dissimilar history, unequal resources and different maritime interests. This diversity engendered acute sensitivity about relative rights and privileges and negotiations tended to be a zero sum game. However, as suggested by Ambassador Galindo Pohl, a representative of Colombia and Chairman of the Second Committee at the Third session (1975),
This “variety of laws” is especially pronounced on issues involving naval or military activities in the EEZ.
the fact is that inoffensive and very abstract language leads its drafters to drawing a veil over the thorniest issues thus leaving them open to a variety of interpretations.
No mention of “peaceful purposes” can be found in the Geneva Conventions of 1958. The 1982 Convention adopted this principle in scattered provisions dealing with the high seas, the EEZ and the seabed. The most important “peaceful use” provision is Article 88 which reserves the high seas for peaceful purposes. Article 58 applies this general provision to the EEZ in so far as it is compatible with its legal regime. Under a slightly different formulation of “peaceful purposes”, the same principle applies to the use of the seabed beyond the limits of national jurisdiction. Finally, Article 301 in Part XVI of the Convention, clarifies the meaning of peaceful uses (or purposes), seemingly inspired by Article 2(4) of the UN Charter.
But the text of the 1982 Convention does not specifically address the question of conduct of naval activities in foreign EEZs and several States have seized on this perceived omission to take positions that restrict such activities. Article 58 of the 1982 UNCLOS which deals with the freedoms and rights that remain unaffected by the establishment of the EEZ, represents a compromise between the two opposing perspectives—one equating the EEZ with the high seas for purposes other than resource-exploitation, and the other, favoring extension of the functional jurisdiction of coastal States. These rights and freedoms are identified in part by reference to Article 87 which concerns “freedoms of the high seas” and in part made explicit by Article 58 itself, which safeguards, “navigation and overflight… laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to those freedoms such as those associated with the operation of ships, aircraft and submarines and compatible with the other provisions of the Convention”.
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 manner inconsistent with the principles of international law embodied in the charter of the United Nations.
Apart from spelling out freedom of navigation in the EEZ and superjacent airspace, Article 87 does not clarify which foreign naval or military activities are lawful in the EEZ. Controversial activities include naval maneuvers, live weapons tests, the gathering of strategic information by intelligence ships or airplanes, launching, landing and taking on board aircraft or any other military equipment or device. As the question of naval maneuvers was never explicitly discussed, both the coastal States and other States attempted to construe the Convention as supporting their own national interests. As a result, sharp differences emerged on the nature of this zone and the rights of other States therein. Thus, Brazil, Uruguay and Cape Verde persistently maintained that the provisions of Articles 56–60 of the Convention did not authorize other States to carry out in foreign EEZs, military exercises and maneuvers or other military activities involving the use of weapons or explosives without the coastal State's consent. The maritime states, on the contrary, emphasized that the latter portion of Article 58(1), “such as those associated with the operation of ships…. compatible with the other provisions of the Convention”, had been included at their insistence since in their interpretation, it implied the legality of naval maneuvers in a foreign EEZ as an activity associated with the operation of ships and aircraft. The cross-reference to Article 87 made it clear that other States’ freedoms in the EEZ were the same as those on the high seas. In addition, Article 58 makes a general cross-reference to Articles 88–115 and other pertinent rules of international law as applying to the EEZ. Included in this cross-reference is also Article 89, which prohibits subjection of any part of the high seas to any state's sovereignty and implies that the EEZ as well cannot be validly subjected to such sovereignty.
However, the freedom of navigation may, under certain circumstances, be subjected to two explicit limitations:
(a) The general principle of “due regard” to the interests of other States by Article 87(2) which is cross referenced in Article 58(3).
(b) The coastal State's power of pollution control or by the presence of artificial islands or other structures emplaced by the State, although these islands, installations and structures may not be established where interference may be caused to the use of recognized sea lanes essential to international navigation.
It is futile to engage in speculation as to whether naval maneuvers and operational exercises within a foreign EEZ are permissible. In the view of maritime powers, the right to naval maneuvers in the EEZ is implied in the freedom of navigation and overflight. Vigorously opposing the position taken by some of the Latin American states, the United States took the position that
This position was later confirmed by Ambassador T.B. Koh, the President of the Conference in a workshop held in January 1984 in Honolulu to whit
it 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 treaty.
Distinct conclusions that emerged from the negotiations included the following.
nowhere is it clearly stated whether a third State may or may not conduct military activities in the EEZ of a coastal State. But it was the general understanding that the text of the convention we negotiated and agreed upon would permit such activities to be conducted.
• Despite the ambiguities and their potential for conflict, the Convention does not curb military activities in foreign EEZs and the high seas. The origin and the background of UNCLOS III demonstrates that securing freedom of military uses of the oceans was a primary, albeit not openly articulated, motivation of the maritime powers, and any restrictive interpretation of the EEZ would pose a serious threat to the mobility of their navies in peace time, which would be totally unacceptable to the maritime powers.
• As regards the “peaceful purposes” clause, the general consensus was that the use of this expression in the preamble and other articles of the Convention does not connote imposition of any legal obligation to use the oceans only for non-military purposes. It only projects a policy goal for the future and Article 301 merely echoes the UN Charter without adding anything new to existing state obligations beyond the otherwise pre-emptory rule of international law banning the threat or use of force.
• Article 298(b) of the 1982 UNCLOS allows an exception to the compulsory settlement of disputes that may arise in law enforcement actions from military activities and the use of force. By permitting this exception, the Convention clearly acknowledges the special status of military activities and the use of force by government ships.
• Article 19 of the 1982 UNCLOS which regulates the passage of warships through foreign territorial waters, contains a detailed list of activities which are incompatible with the notion of innocent passage. Among them are typical military operations such as the conduct of exercises and practice with weapons, and launching, landing or taking on board any aircraft. If these and other operations are excluded by a special clause when a foreign ship transits through the territorial sea, it must logically follow that such operations are permissible beyond the territorial sea.
• It was on the understanding that modifications introduced in Article 58 by the Informal Composite Negotiating Text (ICNT) allowed enough latitude of interpretation to include the right to conduct naval activities in a foreign EEZ that the maritime powers, particularly the United States and then Soviet Union agreed to Article 59 dealing with residual rights.
With this background, we can examine some recent incidents in the context of the EEZ regime. One case is that of the collision between a United States surveillance plane and a Chinese jet fighter over China's EEZ in April 2001. The sources of conflict in that case were the purpose of the reconnaissance flights, the interpretation of national sovereignty, and the handling of public diplomacy. The United States contended that its aircraft was enjoying the freedom of overflight. China's contention was that such freedom cannot be absolute, to the point of endangering its security. Based on Article 87 of the Convention which expressly recognizes the freedom of overflight in the air space above the EEZ, the United States stand was well founded. Obviously, this incident arose out of a regular state practice of surveillance undertaken by some States to which other countries object. China had a right to identify the plane, but because there was no allegation that the plane was violating China's economic or environmental rights, an inspection would not normally have been justified.
Another case relates to the pursuit and engagement by the Japanese Coast Guard of a suspected North Korean boat in Japan's EEZ. If the mystery boat was violating Japan's economic or environmental rights, then Japan clearly had a right to inspect it. However, there would be no such right if the vessel was merely engaged in freedom of navigation. Any judgment on the action taken by the Japanese authorities would hinge on the nature of the activity involved. A third case was the protest by Vietnam against live fire exercises by China in Vietnam's claimed EEZ. The conduct of live naval exercises in a foreign EEZ is a permissible use assuming due regard is paid to the interests of the coastal State.
However, it is not usually so easy to draw definitive conclusions regarding military uses of the EEZ. While the institution of the EEZ has become an established fact and a rule of customary international law, the precise scope of the rights of the coastal or other States in the zone remain to be defined. This definition will be a result of the interplay of the competing interests of coastal Third World states and the maritime powers supporting the traditional freedoms of the sea. The language of the 1982 Convention—a result of the unarticulated compromise on the military uses of the EEZ between the strategic and military concerns of the maritime nations and the economic concerns of the Third World—is flexible and ambiguous, raising the crucial question of whether the EEZ regime is stable or, as many have predicted, creeping in the direction of total coastal control. No clear trend has yet emerged. However, the following conclusions can be drawn.
• Neither the coastal States nor the maritime powers have a compelling reason to precipitate a clash over EEZ rights at this time. Most of the disputes that have arisen so far have been motivated by political considerations implicit in the policy of the coastal State. In the future, the possibility of disputes concerning naval maneuvers and other military activities conducted in the EEZ of a coastal State could be avoided or reduced if the State conducting military activities showed ‘reasonable regard’ for the interests of the coastal States and other countries.
• The introduction of new technology and new uses of the seas has led to certain claims of jurisdiction over activities in, or areas of, what have traditionally been high seas. This jurisdiction is narrowly drawn and is not exclusive, but it is an attribute of an economic zone. New threats include WMD and the smuggling of drugs and humans which indeed require extension of control beyond the territorial sea. Thus, the authority, capability and jurisdiction of coastal States are being enhanced to meet these new threats.
• There will thus be increasing pressure to enhance the authority of the coastal State to board and stop vessels on the high seas or in their EEZs to ensure that they are not indulging in any nefarious activities to the detriment of the State. Bilateral and regional arrangements that permit boarding, inspection and seizure of ships suspected of unlawful trafficking in drugs may be used, and are becoming common in the Western hemisphere.
• Regional or sub-regional co-operation is developing to combat the menace of violence at sea. Although the authority of the flag State is maintained, there is increasing co-operation in the inspection of ships, including fishing vessels, and in patrols in various maritime zones. Examples of such co-operation are the port State control arrangements in various regions, the 1995 UN Agreement on Highly Migratory and Straddling Fish Stocks, the Agreement between Japan and Russia on co-operation in the detention of suspicious ships, and in the fight against drugs, arms and sea food smuggling.
• In principle, the “peaceful purposes” clauses in the 1982 UNCLOS do not impair the exercise of sea power in its conventional naval forms. States remain free to use the sea for navigation of their fleets, including submarines. States also remain free to use the sea for military maneuvers, testing and firing of conventional weapons, and emplacement of military devices. Only when military activities come into conflict with peaceful uses, must the former yield to the latter.
• States must observe utmost good faith in their mutual dealings and eschew double standards. Some States condemn certain activities in their maritime zones while engaging in the same activities in other States’ waters. Guidelines are needed to avoid these contradictions. Perhaps there is indeed a need to have guidelines for the conduct of military activities in foreign EEZs, like the “rules of the road” for the mariners.
• Some sort of monitoring mechanism is also necessary to ensure compliance with the provisions of the Convention, once a State has ratified it. In the absence of an organization like the IMO, this task should devolve on the Law of the Sea Secretariat of the United Nations.
• To preserve the broad consensus reflected in the 1982 UNCLOS, it is important that it be universally supported, especially by the United States and other major maritime powers. It is in their interest to preserve their navigational rights around the world. A situation where some important states are not party to the Convention can only lead to a fragmentation of the Law of the Sea and erosion of those parts of the Convention on which a broad measure of consensus was achieved. The result could be a return to the instability and disorder which precipitated the very convening of the Third UN Conference on the Law of the Sea. The United States has been lodging written protests and acting against excessive maritime claims of other nations including creeping EEZ jurisdiction under its Freedom of Navigation Program. But the legal impact of these protests is called into question because the United States has neither the legal nor moral authority to ask others to respect an instrument to which it is not a party. Thus it is hoped that the United States will soon ratify the Convention. By not being a party, the United States is limiting its options, and is losing the opportunity for coordinated action with Convention members to exert diplomatic pressure on other States to adhere to the Convention.
The development of international law often results in the modification of established rules by reference to new interests and needs. The extent of that modification is determined by the relative importance of the needs and interests involved. International law evolves continuously in the light of new situations. Implicit in this process is the continuing appraisal which makes possible both the formulation of appropriate standards and their practical application. As Benjamin N. Cardozo aptly said:
The inn that shelters for the night is not the journey's end. The law, like the traveler, must be ready for the morrow. It must have a principle of growth.
Volume 29, Issue 2 , March 2005, Pages 147-151
Military and Intelligence Gathering Activities in the Exclusive E conomic Zone: Consensus and Disagreement II
|8 of 13|
|Copyright © 2005 Elsevier B.V. All rights reserved. ScienceDirect® is a registered trademark of Elsevier B.V.|