China attempting to use UNCLOS to bind participants to its interpretation of military activities clause, U.S. should not play along
Traditionally the freedom of the high seas has included the use of the seas for military maneuvers or exercises, including the use of weapons. This freedom – including the freedom to operate in EEZs – was supposed to be incorporated into UNCLOS . But the language in the provisions pertaining to conduct of military activity in EEZs leaves far too much wriggle room for mischief.
For example, China says that foreign warships must obtain its approval before they can do anything but pass through its exclusive economic zone. A Chinese Defense Ministry spokesman, Senior Col. Geng Yansheng, stated in 2010: “We will, in accordance with the demands of international law, respect the freedom of passage of ships or aircraft from relevant countries which are in compliance with international law” (emphasis added). Chinese officials are trying to limit U.S. naval activity in China’s EEZ’s to “passage” from one destination to another.
This means that the Chinese are claiming that heretofore lawful activities(task-force maneuvering, flight operations, military exercises, weapons testing and firing, surveillance and reconnaissance operations and other intelligence-gathering activities, and military marine data collection or military surveys)conducted in EEZs should now be treated as prejudicial to Chinese rights, including China’s duty to protect the marine environment. If these interpretations gain currency, UNCLOS will prove prejudicial to the rights of maritime nations such as the United States. Law should provide clarity, but UNCLOS is unclear as to what military activities are allowed in a country’s EEZ. China is cynically exploiting the law’s vagaries to further its political goals and its desire to project power.
Herein lies a major danger in U.S. ratification of UNCLOS. In adopting, promoting, and acting on new interpretations of international law, China is attempting to upset the status quo and establish new norms of maritime behavior. By signing up to UNCLOS, the United States might unintentionally signal approval of these errant interpretations.