While the text may be ambiguous the negotiating history of the UNCLOS agreement indicates that it intended to preserve military freedom of navigation
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.
Related argument(s) where this quote is used.
The United States, as authorized by Article 298, would exempt “military activities” from compulsory dispute resolution. Under the Convention, a state party has the exclusive right to determine what constitutes a “military activity.” The U.S. declaration states:Related Quotes:
- US has made clear numerous times that military activities including intelligence gathering would not be subject to dispute resolution
- Article 310 of UNCLOS allows ratifying parties to submit signing statements to clarify their intent
- U.S. signing statements for UNCLOS outlined and clarified seven critical issues for U.S. support
- In prepared signing statements, U.S. has declared an exemption for its military activities from compulsory dispute resolution
- ... and 14 more quote(s)