Abstract

Military and intelligence gathering activities in the EEZs will likely become more intensive and intrusive. They will also become more controversial because there is disagreement regarding the regime governing such activities in the EEZ. Dialogue leading to agreed voluntary guidelines for these activities must continue.

Keywords: EEZ; Regimes; Conclusions; Next steps

Military and intelligence gathering activities in the EEZs will likely become more intensive, intrusive, controversial and dangerous. There is agreement that the exercise of the freedom of navigation and overflight in and above EEZs should not interfere with the rights of the coastal State in the EEZ. But there is disagreement regarding interpretations of relevant 1982 UN Convention on the Law of the Sea (UNCLOS) provisions, the means to resolve the disagreements, or if there is a need to do so. Increased dialogue between maritime powers and coastal States is necessary to reach a mutual understanding of key terms with a goal of developing some agreed voluntary guidelines for such activities and the means and manner of implementing them.

The freedom of navigation has been central to the law of the sea for centuries, but recently this freedom has been eroded by significant restrictions. Fishing vessels have been the target of most of the restrictions including the requirement to give notice whenever they wish to pass through the EEZ of certain countries. Oil tankers, especially those with single hulls, are also subject to restrictions. Indeed, any ship with a dangerous cargo must conform to international, regional, and national regulations. And ships carrying ultrahazardous nuclear cargoes have been told by many countries to avoid their EEZs, and these ships have in fact avoided most EEZs. Thus, a new norm of customary international law appears to be emerging that allows coastal States to regulate navigation through their EEZ based on the nature of the ship and its cargo.

More to the point of this volume, the right to engage in military and intelligence gathering activities in the EEZs of other States remains controversial, with groups of countries asserting dramatically opposing views. Countries remain deeply divided over whether the launching of weapons, hydrographic surveying, and surveillance activities in the EEZs of other countries is consonant with international law and in particular, the law of the sea. Moreover, due to a dramatic increase in security concerns, it has become increasingly common for the major maritime powers to stop and board merchant vessels to look for suspect cargoes and “terrorists” anywhere, anytime they choose to do so. Even military vessels, which have immunity from seizure, must nonetheless respect the many rules that have been established to protect the marine environment and the security of coastal populations. It thus appears that the freedom of navigation no longer exists in foreign EEZs to the same extent as on the high seas. Indeed, the balance between navigational freedom and other national interests continues to change, and navigational freedom appears to be becoming less absolute and robust as a result.

A particular case in point is the Proliferation Security Initiative (PSI). The purpose of the PSI proposed and led by the Bush Administration is to prevent elements of weapons of mass destruction from entering or leaving states of proliferation concern. There is a divergence of views regarding whether the proposal involves interdicting vessels and aircraft on the high seas and whether it can be effective within existing international law. The dilemma seems to be that the PSI cannot be fully effective without violating or changing international law to allow interdictions on the high seas and getting key countries to agree to this new regime. Legal and political options to enhance PSI effectiveness include changing existing international law; expanding existing conventions or developing a new one; obtaining a supporting UN Security Council resolution; obtaining NATO endorsement; arguing self-defense; and building a coalition of countries willing to perform such interdictions in or over their territorial seas. However, each of these options has distinct disadvantages regarding its feasibility and effectiveness. Moreover, the PSI is stressing US relations in Asia as each nation weighs the pros and cons of participation.

There is clearly a lack of common understanding with regard to some of the key relevant terms in the 1982 UNCLOS. Particularly contentious terms include “peaceful uses,” “peaceful purpose,” “freedom of navigation and overflight,” “residual rights,” “other internationally lawful uses of the sea,” “installations and structures,” “due regard,” “normal mode,” hostile intent, and abuse of rights. There is thus a wide range of perspectives regarding the regime of military and intelligence gathering activities in the EEZ.

For example, China argues that the freedoms of navigation and overflight in the EEZ have certain restrictions including that the activity must be peaceful and not threaten to use force against the coastal State. Such non-peaceful activities in China's view include military surveys, military maneuvers, and military reconnaissance, which it views as a form of battlefield preparation. In China's view, these activities are also subject to due regard for the rights of the coastal State.

From an Indian perspective, 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, it views the “peaceful purposes” clause of the 1982 UNCLOS as only a goal. However, due to new threats and technological advances, it acknowledges that the authority, capability and jurisdiction of coastal States are being enhanced. Thus, it believes that guidelines are needed to avoid certain contradictions between the new trend and the status quo.

From a Russian perspective, definitions of terminology are key to the application of the law of the sea. Definitions of a term can be determined from its generic characteristics and specific differences. Using this method, military hydrographic surveys are not a threat of use of force. From a Korean perspective, the EEZ is a sui generic zone in which military and intelligence activities are allowed with some restrictions, including no threat or use of force, due regard to the rights of other States, and observation of treaties and other rules of international law. This is equally applicable in peace and war. However, increasing EW and IW capabilities may eventually result in reinterpretation of certain provisions of the 1982 UNCLOS.

There are significant differences as well as overlaps between hydrographic surveying and marine scientific research in the EEZ, including military surveying. Recent trends in technology, the use of hydrographic data and State practice suggest that hydrographic surveying in the EEZ should be under the jurisdiction of the coastal State. Paradoxically, arguments for military surveys in the EEZ being outside coastal State jurisdiction appear stronger than those for hydrographic surveying.

To avoid unnecessary incidents and conflict, specific guidelines are proposed for military and intelligence gathering activities in the EEZ. Views on these proposed guidelines range from strong reservations regarding any restrictions on these activities to support for some restrictions. The maritime powers want maximum flexibility for their naval fleets, whereas coastal States want some predictability and protection against intimidation. Nevertheless, there is general support for the effort to promote mutual understanding and agreement on the rights and obligations of both maritime powers and coastal States. The challenge is to find a practical way of handling these issues. Suggestions are provided regarding requisite specific assurances and the process for implementing and enforcing any such guidelines. State consent and State practice will inevitably play a significant role in this process.

There are two possible reasons for the variation in State implementation of the 1982 UNCLOS on the EEZ. One is misinterpretation, and where this exists it can be corrected through “education”. The other is an apparent widespread desire to modify the current regime of the EEZ for a variety of reasons. In some instances, such as the matter of underwater cultural heritage, clarifications or further development of applicable international law would be in order. A study of “creep” would be useful, including that regarding marine environmental protection rules on the high seas, and their enforcement. But immediate attention should be paid to “interim arrangements” which may be necessary in regard to military activities in foreign EEZs.

There seem to be two ways forward. One is to continue the discussion within the context of the EEZ regime with the objective of improving it. The other is to discuss the military uses of the sea within and outside of the EEZ and to put forward new guidelines regarding maritime activities in peace time.

A follow-on activity should be to see what new needs and demands can be accommodated, whether as an expression of existing international law as evidenced by widespread practice, or its incipient development. At the very least, this survey would be instructive as to how countries think the EEZ regime could be improved to address modern challenges. Thereafter, possible changes can be addressed under Article 313 and 314 of the 1982 UNCLOS as well as the UNICPOL process.

There are several specific suggestions for future work.

• There is a need to study and prepare a list of WMD chemicals and biological agents that have dual use. This would be particularly useful to developing countries in relation to the PSI.

• The Dialog process should be continued and bilateral arrangements between the parties concerned should be encouraged as preventive diplomacy.

• Particular areas where problems might arise need to be delineated.

• There is a need for follow-up and continuity in this effort. The next meeting should consider an inventory of all international legal instruments having a bearing on the regime of the EEZ and be combined with the conclusions of the study on the interpretation of terms. The participants should consider the feasibility of incorporating in the proposed guidelines the rules and recommended procedures relating to compliance with the implementation and enforcement of international rules. The proposed guidelines could be considered to coincide with the 10th Anniversary of entry into force of UNCLOS on November 16, 2004.

• In the South China Sea workshop process, at the end of the meeting statements were issued that were a guideline for the next meeting. At the moment the public is not aware of the issues being discussed in this dialogue so a statement should be issued to the public after the next meeting so it will be aware and supportive of this effort.

• The proposed guidelines need to be discussed further. Building confidence takes time. We must view this as a continuing process.

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