The Legality of Foreign Military Activities in the Exclusive Economic Zone under UNCLOS
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.3 The Impeccable withdrew from the area but returned the following day accompanied by a US guided missile destroyer for its protection.4 This 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).6 This issue is unlikely to be resolved because the two sides fundamentally disagree on what military activities are permissible in another state’s EEZ.7
The 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.
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.86 Although 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.87
According to some commentators, there is no reason why economic and military activities cannot coexist in a maritime zone.88 Nevertheless, as military technology continues to advance,89 less developed states continue to make greater claims in the EEZ.90 As state practice regarding military operations in the EEZ continues to evolve in a dynamic system, national practice is inconsistent and remains in dispute.91 In many ways, the legal status of the EEZ will continue to develop through the interaction of competing interests and ‘claim and counterclaim.92
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.96 For 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.97 In the East China Sea, China and Japan have developed bilateral regimes for ‘conflict avoidance’ regarding fisheries and marine scientific research.98 These 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.99 Thus, 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
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.84 Meanwhile, China relies on Article 301 and demands that the United States respect its legal interests and security concerns.85 Ultimately 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.
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.58 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.’59 The ICJ’s findings in the Corfu Channel case were influential in the development of the law of the sea in the UNCLOS conferences.60 This 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[...].62
Unfortunately, the issue of military activities in the EEZ remains ambiguous and unsettled.
Since UNCLOS is meant to be a comprehensive ‘package deal’, states may not make reservations or exceptions to the Convention.48 Otherwise, parties to the treaty could effectively opt out of their convention obligations.49 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.’50 Some states have exercised their Article 310 right by making declarations on the issue of military activities in the EEZ.51 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.52 In their declarations, these states require consent before a foreign ship may conduct military activities.53 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.54
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.55 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.56
These declarations demonstrate the sharp disagreement and variance in interpretation regarding the legality of conducting military activities in the EEZ of another country.57
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.41 However, as a relatively new concept in international law, the specific scope of rights and responsibilities in the EEZ is dynamic and ever-evolving.42 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.43 Some maritime powers support unfettered military activity in the EEZ by emphasizing the freedom of navigation.44 Conversely, some coastal states object to military activity in their EEZ by expressing concern for their national security and their resource sovereignty.45 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.’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.47