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 in “inter 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