Turning back the clock on UNCLOS
20 Aug 2015|
Turning back the clock

With a large part of the Western Pacific comprising the exclusive economic zone (EEZ) of one country or another, it’s a real concern that the US appears not to accept some aspects of the EEZ regime as established by the 1982 UN Convention on the Law of the Sea (UNCLOS).

The Congressional Research Service (CRS) in Washington earlier this month produced a report entitled Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China: Issues for Congress. While this provides a useful overview of the US position with regard to territorial disputes in the East and South China Seas, its review of EEZ issues doesn’t acknowledge important aspects of the EEZ regime.

The CRS report fails to provide a complete description of the EEZ regime. It states that ‘a country’s EEZ includes waters extending up to 200 nautical miles from its land territory. Coastal states have the right under the United Nations Convention on the Law of the Sea (UNCLOS) to regulate foreign economic activities in their own EEZs’.

This is insufficient in two respects: firstly where a country uses either archipelagic or territorial sea straight baselines, an EEZ may extend further than ‘200 nautical miles from its land territory.’ Secondly it fails to acknowledge that coastal states also have jurisdiction in their EEZs over marine scientific research and the protection and preservation of the marine environment. Importantly the CRS report doesn’t acknowledge that under UNCLOS states exercising their high seas freedoms in another country’s EEZ should do so with ‘due regard’ to the rights and duties of that country.

By not recognising these qualifications and repeatedly referring to the EEZ as ‘international waters’, the CRS report effectively turns the clock back to the US position prior to UNCLOS. In negotiating UNCLOS, the US argued that the EEZ was an extension inwards of the high seas while many coastal states viewed the EEZ as an extension outwards of their territorial sea. The compromise saw the EEZ established as a zone sui generis—neither high seas nor territorial sea subject to its own legal regime that includes the issues of baselines and jurisdiction mentioned above.

The major difference between the US and China over EEZ issues is China’s claim that it has a right to regulate the activities of foreign military forces operating within China’s EEZ. Other countries in the region, including Cambodia, India, Malaysia, North Korea, Thailand, and Vietnam, share China’s position. Although Japan doesn’t formally claim restrictions, it has over the years taken action against North Korean ‘spy ships’ in its EEZ.

Incidents over the years between US and Chinese ships haven’t involved military operations generally, but rather US survey or surveillance ships. Surveillance, including intelligence collection, can be argued to be a high seas freedom available in an EEZ, but ‘military surveys’ are more problematic because they involve marine scientific research. All marine data collected in an EEZ has potential economic value to the coastal State and is relevant to its rights and duties. However, the US argues that because scientific data collected by its research ships is only for military purposes, military surveys don’t come within the jurisdiction of the coastal State.

The ‘due regard’ consideration is an important potential limitation on military activities that might be conducted in another country’s EEZ, particularly in the context of a coastal state’s resource rights and its obligation to protect the marine environment. If, for example, military activities were conducted by a foreign navy in a marine protected area established by the coastal State in its EEZ, or in an area of high fishing activity, this would be without ‘due regard’ to the coastal state’s rights and duties.

In an effort to reduce the risks of misunderstandings and provide some guidance about what constitutes having ‘due regard’ and what does not, the Ocean Policy Research Foundation (OPRF) has produced Principles for Building Confidence and Security in the Exclusive Economic Zones of the ASIA-PACIFIC. It acknowledges a general right of foreign states to conduct military activities, including surveillance, in the EEZ of another state, but goes on to provide some guidelines on what activities wouldn’t have due regard to the coastal state’s rights and duties.

Another important issue is that the seas of East Asia all come within the scope of the special regime for enclosed and semi–enclosed seas established by Part IX of UNCLOS. Under this regime, countries bordering such seas have an obligation to cooperate in their management, particularly with regard to managing living resources, marine scientific research and environmental protection.

The US initially opposed this regime during negotiations on UNCLOS because it could allow bordering states to introduce arrangements restricting other states from exercising high seas freedoms in these seas. Washington rarely, if ever, acknowledges this regime, and provides little assistance to bordering countries in managing their regional seas. When Washington talks about regional maritime cooperation, it’s mainly about naval/military cooperation.

The risk of serious incidents occurring in the region will continue while the US turns back the clock on the EEZ regime and refuses to acknowledge restrictions on military activities within another country’s EEZ in a more open way.

Washington should consider supporting the OPRF Principles, stop talking about EEZs as ‘international waters’, and provide more help to regional countries in fulfilling their obligations under UNCLOS Part IX. Practical measures could include the US allowing Chinese observers onboard its vessels when conducting military surveys within China’s EEZ.