Military Activities in the Exclusive Economic Zone: Preventing Uncertainty and Defusing Conflict
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It is difficult to overstate the extent to which this Convention has become more than a Treaty and has become, instead, an international state of mind. It created new international law, codifying much of what had become customary law of the sea, and established new norms in the negotiation of multilateral, international treaty agreements. For many emerging nations, it was the first major international treaty negotiation that they had ever participated in. According to former United Nations Secretary-General Javier Perez de Cuellar, the 1982 United Nations Convention on the Law of the Sea embodies the will of an overwhelming majority of nations from all parts of the world, at different levels of development, and having diverse geographical characteristics.8
[ Page 301 ]
To the extent the United States continues to have a need for unrestricted, legal access for its naval forces up to the territorial waters of all the countries of the world, we believe it should continue to use vehicles such as the Freedom of Navigation Program to assert these rights, but should also supplement this with other arrangements and understandings with foreign security partners. 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.
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In Working with Other Nations, a U.S. Navy strategy white-paper, Navy strategists suggest that multi-lateral, combined naval operations with friendly nations is the preferable way to further political, economic, and se- curity objectives in an economically and politically interdependent world.261 United States national security continues to require forward naval presence to ensure that information, capital, raw material, and manufactured goods flow freely across borders and oceans.262 One way to secure forward naval presence in foreign EEZs without contention and confrontation is by "establishing relations with security partners in peacetime before the onset of a crisis."263 A useful legal tool in support of this strategy is to create consensus on the law through multi-lateral cooperation and agreement.264
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A number of States, in ratifying the Convention, have chosen to declare that they do not accept procedures for disputes concerning military activities. As of October 16, 2001, those States include Cape Verde, Chile, France, It- aly, Portugal, the Russian Federation, Ukraine, and Tunisia."258 Others, such as India, Pakistan and The United Kingdom, have reserved judgment, per- haps waiting to make a declaration if and when the issue presents itself.259
Given the language of Article 298, and the concomitant proclivity on the part of maritime nations---especially the United States, which is not yet even a party to the Convention-to treat their naval vessels as sovereign entities ex- empt from the normal obligations of commercial vessels plying the seas, it is highly probable that these maritime nations would invoke Article 298 in every case.260 Thus, when disputes arise regarding the military activities of a flag State in the EEZ of a coastal State, it is extraordinarily unlikely that the flag state would submit to the dispute resolution mechanisms of the Convention.