Military Activities in the EEZ: Legal Issues - Centre for International ...

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Military Activities in the EEZ: Legal Issues - Centre for International ...

RSIS–OPRF International Conference

28-29 February 2012 Marina Mandarin

Security Environment of the Seas in East Asia

Session 5. Legal Aspects of the EEZ

Military Activities in the EEZ:

Legal Issues

Robert Beckman

Director, Centre for International Law

1


Outline of Presentation

1. Key Provisions of EEZ Regime

2. Military Activities in the EEZ

3. Due Regard Obligation

4. EEZ Activities and UNCLOS Dispute Settlement

5. Conclusions


Part 1

Key Provisions of EEZ Regime


History of EEZ Regime

• Was a result of a compromise at the Third UNCLOS

• Territorialist States wanted a 200 nm territorial sea, subject

to exceptions for rights and freedoms of other States

• Maritime powers wanted the zone to remain high seas,

subject to exceptions for coastal States over resources

• Result was agreement on the EEZ - a new sui generis zone

called a “specific legal regime”


Nature of EEZ Regime

EEZ is a maritime zone beyond and adjacent to the

territorial sea, extending out to 200 nautical miles from the

baselines from which the territorial sea is measured

EEZ is not part of the high seas

EEZ is not subject to the sovereignty of coastal State

EEZ is a specific legal regime in which the rights and

jurisdiction of coastal States and the rights and freedoms of

other States are set out in the Convention


Overview of EEZ Regime

• Article 55 – Specific Legal Regime

• Article 56 - Rights, Jurisdiction & Duties of Coastal States

• Article 58 - Rights and Duties of Other States

• Article 59 – Basis for resolution of conflicts regarding the

Attribution of Rights and Jurisdiction in the EEZ


Article 56 – Rights of Coastal State

In the EEZ, the coastal State has:

(a) sovereign rights for the purpose of exploring and

exploiting, conserving and managing the natural

resources, whether living or non-living, of the waters

superjacent to the seabed and of the seabed and its

subsoil,

and with regard to other activities for the economic

exploitation and exploration of the zone, such as the

production of energy from the water, currents and winds;

(c) other rights and duties provided for in this

Convention.


Article 56 – Jurisdiction of Coastal State

In the EEZ, the coastal State has:

(b) jurisdiction as provided for in the relevant

provisions of this Convention with regard to:

(i) the establishment and use of artificial islands,

installations and structures; [Part VI]

(ii) marine scientific research; [Part XII]

(iii) the protection and preservation of the marine

environment; [Part XII]


Article 56 – Due Regard Obligation

2. In exercising its rights and performing its duties

under this Convention in the EEZ,

the coastal State shall have due regard to the rights

and duties of other States

and shall act in a manner compatible with the

provisions of this Convention.


Article 58 – Rights and Duties Other

States in the EEZ

1. In the EEZ, all States, . . enjoy, subject to the

relevant provisions of this Convention, the freedoms

referred to in article 87 of navigation and overflight

and of the laying of submarine cables and pipelines,

and 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.


Part 2

Military Activities in the EEZ


Article 58 – Position of US on “other

internationally lawful uses”

• Position of the United States – the phrase “other

internationally lawful uses in Article 58(1) .. . was

intended to preserve in the EEZ the freedom to use the

high seas for military purposes


Article 87. Freedom of the High Seas

Article. 87. Freedom of the high seas

1.. . Freedom of the high seas is exercised under the conditions

laid down by this Convention and by other rules of international

law. It comprises, inter alia, both for coastal and land-locked

States:

(a) freedom of navigation;

(b) freedom of overflight; etc

Note: Although Article 87 does not expressly provide that military

activities are included in freedom of high seas, but it is argued that

it was intended to be included ininter alia”


Controversy on “other internationally

lawful uses”

• Some States take the position that not all military activities are

preserved by article 58(1)

• Some argue that coastal States could oppose military activities

involving weapons that may harm the living resources or the marine

environment or endanger offshore installations, the safety of

navigation or the conduct of scientific research

• Issue is whether coastal State can limit these such military

activities by its laws and regulations, given the limits on its

jurisdiction in article 56


Arts 56 & 73– Jurisdiction of Coastal State

Article 56. In the EEZ, the coastal State has:

(b) jurisdiction as provided for in the relevant provisions of this

Convention with regard to:

(i) the establishment and use of artificial islands,

installations and structures; [Arts. 60, 80, 87, 147, 208,

214, 246, 259]

(ii) marine scientific research; [Arts 87, 238-265, 297]

(iii) the protection and preservation of the marine

environment; [Arts 192-237]

Article 73 gives coastal State jurisdiction to enforce its laws and

regulations on fishing


Article 58(2) – High Seas Rules in EEZ

• Article 58(2) provides that Articles 88 to 115 and other pertinent

rules of international law apply to the EEZ in so far as they are not

incompatible with this Part.

• Note: Articles 88-115 include:

– Art. 88. Reservation of High Seas for Peaceful Purposes

– Art. 92. Exclusive jurisdiction of the flag state

– Art. 95. Immunity of warships

– Arts. 101-109 Piracy regime


Article 58 Limitations – Due Regard and

Laws of Coastal State

3. In exercising their rights and performing their duties

under this Convention in the EEZ, States

shall have due regard to the rights and duties of the

coastal State and

shall comply with the laws and regulations adopted by the

coastal State in accordance with the provisions of this

Convention and other rules of international law in so far

as they are not incompatible with this Part.


Article 87 Limitation – Due Regard for

interests of other States

Article 87. Freedom of the high seas

1. The high seas are open to all States, whether coastal or land-locked.

Freedom of the high seas is exercised under the conditions laid down

by this Convention and by other rules of international law.

It comprises, inter alia, both for coastal and land-locked States:

(a) freedom of navigation;

(b) freedom of overflight; . . .

2. These freedoms shall be exercised by all States with due regard for the

interests of other States in their exercise of the freedom of the high

seas, and also with due regard for the rights under this Convention

with respect to activities in the Area.


Article 88. Peaceful Purposes

• Article 88 provides that: “The high seas shall be reserved for

peaceful purposes.”

• Article 88 applies in the EEZ because of Article 58(2)

• Debates on meaning of peaceful purposes:

1. Prohibits all military activities

2. Prohibits all aggressive military activities

3. Prohibits military activities not consistent with UN Charter and

other obligations under international law


Article 300. Good faith & abuse of rights

• Article 300 states that:

States Parties shall fulfil in good faith the obligations

assumed under this Convention and shall exercise the

rights, jurisdiction and freedoms recognized in this

Convention in a manner which would not constitute an

abuse of right.

• Some observers argue that certain types of military

reconnaissance are an abuse of the rights of navigation

and overflight (or right to engage in military activities)


Summary of Limitations on Military

Activities in the EEZ

1. Must be exercised with due regard to the rights and duties of the

coastal State (but not interests)

2. Must comply with laws and regulations of the coastal State

adopted in accordance with the provisions of the Convention

3. Must be exercised with due regard to the interests of other States

in exercising high seas freedoms in the EEZ (Article 87)

4. Must not be exercised in such a manner that it would constitute

an abuse of rights

5. Must be for peaceful purposes


Part 3

Due Regard Obligation


Controversy over Article 58 – Position of US

State Dept

Military activities, such as anchoring, launching and

landing of aircraft, operating military devices,

intelligence collection, exercises, operations and

conducting military surveys are recognized historic

high seas uses that are preserved by article 58


Controversy over Article 58 –

Position of US State Dept

• Under article 58(1), all States have the right to conduct military

activities within the EEZ,

but may only do so consistently with the obligation to have due

regard to coastal State resource and other rights, as well as the

rights of other States as set forth in the Convention.

• It is the duty of the flag State, not the right of the coastal State,

to enforce this "due regard" obligation.


Due Regard Obligation

•Is a procedural duty on both coastal States and other States to take

into consideration each other’s legitimate rights under UNCLOS

•Is “an express recognition of the general need for the

accommodation of uses” and involves a “balancing” of the rights,

jurisdiction and duties of the coastal State with the rights and duties

of other States in the EEZ


Due Regard Obligation

•Can argue that due regard obligation means that

neither the rights of coastal States or other States are

absolute

•Coastal State has no power to prohibit activities

•User State has no right to act unilaterally

•Due regard obligation is a procedural obligation which

requires the two States to consult each other and

negotiate in good faith


Controversy over Article 58 – Query

over “due regard” obligation

• Does due regard obligation in article 58 require the user

State to consult and negotiate with the coastal State or

other States before conducting military or survey

activities in its EEZ ?

• Consult coastal State if the particular use is a threat to the

resource rights or other rights of coastal State in EEZ

• Consult other States if the use is threat to the interests of

other States in exercising high seas freedoms in the EEZ


Part 4

EEZ Activities and

UNCLOS Dispute Settlement


UNCLOS Part XV

• General Principle is that any dispute between States Parties

over the interpretation or application of any provision in the

Convention is subject to the system of compulsory binding

dispute settlement (CBDS) in section 2 of Part XV

• Because the provision on the EEZ was controversial, it was

specifically provided in Article 297(1) that certain categories of

disputes relating to the sovereign rights of the coastal State in

its EEZ would be subject to section 2


Article 297(1)

• 1. Disputes concerning the interpretation or

application of this Convention with regard to the

exercise by a coastal State of its sovereign rights or

jurisdiction provided for in this Convention shall be

subject to the procedures provided for in section 2 in

the following cases:


Article 297(1)(a)

• (a) when it is alleged that a coastal State has acted in

contravention of the provisions of this Convention in

regard to the freedoms and rights of navigation,

overflight or the laying of submarine cables and

pipelines, or in regard to other internationally lawful

uses of the sea specified in article 58;


Article 297(1)(b)

• (b) when it is alleged that a State in exercising the

aforementioned freedoms, rights or uses has acted in

contravention of this Convention or of laws or

regulations adopted by the coastal State in

conformity with this Convention and other rules of

international law not incompatible with this

Convention; or


Dispute Settlement & Military

Activities

Article 298 – Optional exceptions to the system of

compulsory binding dispute settlement

• States may declare that they do not accept the

dispute settlement procedures with respect to the

following categories of disputes:

• disputes concerning military activities, including

military activities by government vessels and

aircraft engaged in non-commercial service, . . .


Declarations under Article 298

• Russian Federation – Declaration under 298 upon ratification

(12 March 1997)

• United Kingdom – Declaration upon accession

(7 April 2003)

• Republic of Korea – Declaration made after ratification

(18 April 2006)

• China - Declaration under 298 made after ratification

(25 August 2006)


Option for other States ?

• States parties that have not made declarations under article

298 could provoke a “dispute” on military activities in the EEZ

and invoke the compulsory binding dispute settlement system

in UNCLOS

• An arbitral or judicial decision would strictly speaking be

binding only on the parties to the dispute, but the decision

would carry great weight as an “authoritative interpretation” of

UNCLOS


ITLOS Advisory Opinion?

• Is it possible to request an ITLOS advisory opinion on legal

issues concerning military activities in the EEZ?

• Article 138 of the Rules of the Tribunal provides that the Tribunal

may give an advisory opinion on a legal question if an

international agreement related to the purposes of the

Convention specifically provides for the submission to the

Tribunal of a request for an advisory opinion.


Part 5

Conclusions


General Conclusions

1. Article 58 was intended to preserve the right to conduct

military activities in the EEZ

2. There is no agreement on what limitations there are on States

when conducting military activities in the EEZ

3. It can be argued that the “due regard” obligation imposes a

limit on user States to consult and negotiate

4. Although it is unlikely that any major power would be willing

to take the issue to dispute settlement under UNCLOS, it may

be possible for other States to either invoke the CBDS system

or request an Advisory Opinion

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