Close Encounters at Sea: The USNS Impeccable Incident
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Nothing in UNCLOS or state practice changes the right of military forces of all nations to conduct military activities in the exclusive economic zone without coastal-state notice or consent. The EEZ was not created to regulate military ac- tivities. Proposals during the Third UN Conference on the Law of the Sea (UNCLOS III) to include residual coastal-state security interest rights in the EEZ were considered and rejected.9 UNCLOS article 56 makes clear that coastal states have limited sovereign rights in the EEZ for the purpose of exploring, exploiting, conserving, and managing the natural resources of the zone and with regard to other activities for the economic exploitation and exploration of the zone. The coastal state also has limited jurisdiction with regard to the establishment and use of artificial islands, installations, and structures, marine scientific research, and the protection and preservation of the marine environment. In exercising its rights and performing its duties in the EEZ, the coastal state is to have due regard to the rights and duties of other states and act in a manner compati- ble with the provisions of UNCLOS.
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As previously discussed, coastal states lack security interests in the EEZ. Nothing in UNCLOS supports the PRC position. Similarly, the Chinese position that the freedom of overflight reflected in UNCLOS article 58 is a narrow right, including only the right to transit the airspace above the EEZ, is not supported by UNCLOS, other international agreements, or state practice. On the contrary, the negotiating history of UNCLOS and state practice before, during, and after UNCLOS support the conclusion that freedoms of navigation and overflight in the EEZ are broad freedoms; it is coastal-state rights in the EEZ that are narrowly limited. As we have seen, UNCLOS article 58 is quite clear: all states enjoy the freedoms of navigation and overflight and other internationally lawful uses of the seas related to these freedoms, such as those associated with the operation of ships and aircraft. Long-standing state practice supports the position that surveillance and reconnaissance operations conducted in international airspace be- yond the twelve-nautical-mile territorial sea are lawful activities. Since the end of World War II, surveillance and reconnaissance operations in international airspace have become a matter of routine. Many nations, including the PRC, en- gage in such activities on a routine basis. Moreover, as previously discussed, UNCLOS article 19.2(c) prohibits intelligence-gathering activities by ships en- gaged in innocent passage through the territorial sea—as noted above, no simi- lar prohibition is contained in part V of UNCLOS, and therefore, surveillance and reconnaissance activities are permitted in the EEZ. The PRC has an obliga- tion under UNCLOS article 56 to exercise its limited resource-related rights in the EEZ with due regard for the rights of other states to engage in lawful military activities, including surveillance and reconnaissance operations, in the zone.
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The proliferation of excessive coastal-state restrictions on military activities in the exclusive economic zone should be a growing concern to all maritime nations. Such restrictions are inconsistent with the 1982 UN Convention on the Law of the Sea and customary international law, and they erode the balance of interests that was carefully crafted during the nine-year negotiations that led to the adoption of UNCLOS. All nations must remain engaged, both domestically and internationally, in preserving operational flexibility and ensuring that the balance of interests reflected in UNCLOS is not eroded any further. The bottom line is that while UNCLOS grants coastal states sovereign rights for the purpose of exploring, exploiting, conserving, and managing the natural resources in the EEZs, it does not authorize them to interfere with legitimate military activities, which include much more than just navigation and overflight. Accordingly, U.S. warships, military aircraft and other sovereign immune ships and aircraft will continue to exercise their rights and freedoms in foreign EEZs, including China’s, in accordance with international law.