Naval Arms Race – Military activities in the Exclusive Economic Zone

Download:

– UN Study on the Naval Arms Race (Report of the General Secretary – Sept. 17, 1985)
From UN Site From CVD

– Military Activities in the Exclusive Economic Zone: Preveting uncertainty and defusing conflict (George V. Galdorisi & Alan G. Kaufman – 2001)
From California Western School of Law From CVD

– Military Activities in the Exclusive Economic Zone: Preveting uncertainty and defusing conflict (Hyun Soo-Kim)
From US Naval War College From CVD

Rule of Law Committee for the Ocean

India, Malaysia and the Law of the Sea in the Indo-Pacific

As China invests in the Indian Ocean, builds port facilities and begins basing ships in Djibouti and, possibly, Gwadar (Pakistan), India is showing greater concern for naval activities in the region. India’s easternmost territory, the Andaman and Nicobar islands on the Andaman Sea, along with Malaysia, Indonesia, and Thailand, border the eastern gateway to the Indian Ocean by way of the Strait of Malacca, bringing special attention to the region at this time.
East Indian Ocean: Crossroad of the Indo-Pacific
When a new naval power enters a region there may be efforts to restrict foreign naval activities, so it was encouraging to see that on April 1st, 2018, the Prime Ministers of India and Malaysia issued a “Joint Statement on 60th Anniversary of India-Malaysia Diplomatic Relations.” Among the 68 paragraphs was one specifically addressing their commitment to the UN Convention on the Law of the Sea.

64. The two Leaders reiterated their commitment to respecting freedom of navigation and over flight, and unimpeded lawful commerce, based on the principles of international law, as reflected notably in the United Nations Convention on the Law of the Sea (UNCLOS) 1982. They urged all parties to resolve disputes through peaceful means without resorting to threat or use of force and exercise self-restraint in the conduct of activities, and avoid unilateral actions that raise tensions, and they emphasized that all parties should show utmost respect to the UNCLOS 1982, which establishes the international legal order of the seas and oceans;

source of the Joint Statement: <http://www.mea.gov.in/bilateral-documents.htm?dtl/28297/Joint_Statement_on_60th_Anniversary_of_IndiaMalaysia_Diplomatic_Relations>

As positive as that sounds, it is important to address how these countries viewed the Convention when they ratified it, and a source of insight is found in the declarations made at the time of ratification. While these declarations have largely been left unimplemented, they leave some uncertainties, not just for the region, but for supporters of the Convention in the United States in making the case for US accession to the Convention.

In its declarations, India included this provision:

(b) The Government of the Republic of India understands that the provisions of the Convention do not authorize other States to carry out in the exclusive economic zone and on the continental shelf military exercises or manoeuvres, in particular those involving the use of weapons or explosives without the consent of the coastal State.”

Malaysia made a similar declaration:

3. The Malaysian Government also understands that the provisions of the Convention do not authorize other States to carry out military exercises or manoeuvres, in particular those involving the use of weapon or explosives in the exclusive economic zone without the consent of the coastal state.

Similar declarations were made by other Indian Ocean coastal states, including:

Bangladesh:

1.    The Government of the People’s Republic of Bangladesh understands that the provisions of the Convention do not authorise other States to carry out in the exclusive economic zone and on the continental shelf military exercise or manoeuvres, in particular, those involving the use of weapons or explosives, without the consent of the coastal State.

Pakistan:

iii) It is the understanding of the Government of the Islamic Republic of Pakistan that the provisions of the Convention on the Law of the Sea do not in any way authorize the carrying out in the Exclusive Economic Zone and in the Continental Shelf of any coastal State military exercises or manoeuvres by other States, in particular where the use of weapons or explosives are involved, without the consent of the coastal State concerned.”

and Thailand:

4.    The Government of the Kingdom of Thailand understands that, in the exclusive economic zone, enjoyment of the freedom of navigation in accordance with relevant provisions of the Convention excludes any non-peaceful use without the consent of the coastal State, in particular, military exercises or other activities which may affect the rights or interests of the coastal State; and it also excludes the threat or use of force against the territorial integrity, political independence, peace or security of the coastal State.

Several countries in other regions that have made similar declarations include Brazil, Ecuador, Uruguay and Cape Verde. Other states, including Germany, Italy, the Netherlands and the United Kingdom, made declarations denying this interpretation of the Convention.

Several more states made declarations claiming the right of coastal states to request or require prior notification of innocent passage of warships through the territorial sea.

The convention itself make no mention of such a prior notification requirement. The Convention explicitly states that reservations to the Convention can be made only in instances specifically identified in the Convention and that declarations cannot exclude or modify the legal effect of the Convention:

Article 309
Reservations and exceptions

No reservations or exceptions may be made to this Convention unless expressly permitted by other articles of this Convention.

Article 310
Declarations and statements

Article 309 does not preclude a State, when signing, ratifying or acceding to this Convention, from making declarations or statements, however phrased or named, with a view, inter alia, to the harmonization of its laws and regulations with the provisions of this Convention, provided that such declarations or statements do not purport to exclude or to modify the legal effect of the provisions of this Convention in their application to that State.

Freedom of Navigation and Operations in the EEZ

In 1983, while the negotiation of the LOS Convention was fresh in mind, the UN General Assembly mandated a study on the “Naval Arms Race.” In 1985, the Secretary General forward the report of the group of experts as UN document A/40/535 dated17 September 1985. The group of experts comprised members from Indonesia, France, China, Gabon, Austria, Sweden and the Netherlands.

The Secretary General introduced the report:

The present study was carried out by a group of qualified governmental experts appointed by the Secretary-General pursuant to General Assembly resolution 38/188 G of 20 December 1983. In that resolution the General Assembly requested a comprehensive study on the naval arms race with a view to analysing the possible implications for international security, for the freedom of the high seas, for international shipping routes and for the exploitation of marine resources, thereby facilitating the identification of possible areas for disarmament and confidence-building measures.

The report of the Group of Experts addresses activities in the EEZ in paragraphs 204 to 214. The comments may be summarized as follows:

The Convention states that the high seas provisions in Articles 88 to 115 apply to the EEZ except where they are incompatible to the EEZ provisions, effectively applying high seas freedoms to the EEZ except in instances dealing with management and conservation of natural resources.

Article 58
Rights and duties of other States in the exclusive economic zone

1. In the exclusive economic zone, all States, whether coastal or land-locked, 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.

2. Articles 88 to 115 and other pertinent rules of international law apply to the exclusive economic zone in so far as they are not incompatible with this Part.

3. In exercising their rights and performing their duties under this Convention in the exclusive economic zone, 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 59
Basis for the resolution of conflicts
regarding the attribution of rights and jurisdiction

In the exclusive economic zone in cases where this Convention does not attribute rights or jurisdiction to the coastal State or to other States within the exclusive economic zone, and a conflict arises between the interests of the coastal State and any other State or States, the conflict should be resolved on the basis of equity and in the light of all the relevant circumstances, taking into account the respective importance of the interests involved to the parties as well as to the international community as a whole.

In cases where neither coastal nor seagoing states have primary competence, and since article 58, paragraph 2 effectively integrated high seas rights into the EEZ provisions, paragraph 3 of article 58 provides guidance for resolution. This could be pursued through consultations and through regional agreements, either directly or through the IMO, that clarify regional responsibilities and freedoms and would be binding upon signatories. Two articles included by reference in Article 58 provide direction:

Article 88
Reservation of the high seas for peaceful purposes

The high seas shall be reserved for peaceful purposes.

Article 89
Invalidity of claims of sovereignty over the high seas

No State may validly purport to subject any part of the high seas to its sovereignty.

Warships are given additional protection by the Convention with regard to application of environmental regulations by coastal states:

Article 236
Sovereign immunity

The provisions of this Convention regarding the protection and preservation of the marine environment do not apply to any warship, naval auxiliary, other vessels or aircraft owned or operated by a State and used, for the time being, only on government non-commercial service. However, each State shall ensure, by the adoption of appropriate measures not impairing operations or operational capabilities of such vessels or aircraft owned or operated by it, that such vessels or aircraft act in a manner consistent, so far as is reasonable and practicable, with this Convention.

Since this precludes unilateral action on environmental grounds against warships in the EEZ, the case for negotiation of regional agreements, codes of conduct or other agreements that address environmental and conservation interests in regional EEZs appears more appropriate than unilateral attempts to restrict freedom of navigation (or overflight) in the EEZ.

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