Abstract
During negotiations for the United Nations Convention on the Law of the Sea (UNCLOS), military activities in another state's Exclusive Economic Zone (EEZ) were a point of contention. Currently, the issue remains controversial in state practice. UNCLOS attempts to balance the differing interests of coastal and maritime states, but is silent or ambiguous on the legality of military operations in foreign EEZs. Coastal states seek to assert increasing control over their maritime zones while maritime states prioritize the freedom of navigation. This article examines the competing views on these issues in the context of the 2009 Impeccable incident between China and the United States that occurred in the South China Sea. The issue of military activities in the EEZ will continue to be a complex subject, without clear definitions in the nature and scope of permissible activity. As state practice evolves, the potential for hostilities is high, particularly in semi-enclosed sea areas such as the South China Sea. This article concludes that states should create dialogues and form agreements to help clarify the contours of military activity in the EEZ, focusing on mutual interests, interdependence, and coexistence rather than perceiving the ocean as a zero-sum resource.
Highlights
Coastal states seek to assert increasing control over their maritime zones while maritime states prioritize the freedom of navigation
The law of the sea has always had a tension between states supporting the doctrine of an open sea and states that seek control over a more closed sea.17. This struggle has been continuous throughout the evolution of the law of the sea and many UNCLOS provisions reflect this balance between coastal state and maritime state interests
It will be difficult to look for an authoritative legal interpretation regarding military activities in the Exclusive Economic Zone (EEZ) if such a dispute is not presented before the International Court of Justice (ICJ) or the International Tribunal for the Law of the Sea
Summary
In March 2009 in the South China Sea, five Chinese vessels surrounded the unarmed USNS Impeccable, a United States (‘US’) Navy ocean surveillance vessel, and ordered it to leave the area. The Impeccable had been conducting routine seabed mapping and tracking submarines about seventy-five nautical miles (nm) south of China’s Hainan Island. Two of the Chinese vessels moved within eight meters of the US ship, forcing it to take collision-avoidance measures. The Impeccable withdrew from the area but returned the following day accompanied by a US guided missile destroyer for its protection. This incident raised tensions in Sino-American relations as both nations accused the other of violating international law. The Pentagon protested the aggressive ‘harassment’ of the Chinese vessels while Beijing accused the US ship of illegally operating in China’s Exclusive Economic Zone (EEZ). This issue is unlikely to be resolved because the two sides fundamentally disagree on what military activities are permissible in another state’s EEZ.. The Impeccable withdrew from the area but returned the following day accompanied by a US guided missile destroyer for its protection.. The Impeccable withdrew from the area but returned the following day accompanied by a US guided missile destroyer for its protection.4 This incident raised tensions in Sino-American relations as both nations accused the other of violating international law.. The Pentagon protested the aggressive ‘harassment’ of the Chinese vessels while Beijing accused the US ship of illegally operating in China’s Exclusive Economic Zone (EEZ).. The Pentagon protested the aggressive ‘harassment’ of the Chinese vessels while Beijing accused the US ship of illegally operating in China’s Exclusive Economic Zone (EEZ).6 This issue is unlikely to be resolved because the two sides fundamentally disagree on what military activities are permissible in another state’s EEZ.. Did the United States have the right to conduct activities in China’s claimed EEZ? Was China out of line to require prior notification and permission? What does the United Nations Convention on the Law of the Sea (UNCLOS or the Convention) permit and prohibit in terms of military activities in the EEZ? the issue of the military uses of the oceans in peacetime raises many contentious questions and very few answers
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