Current Development in Oceanography
Volume 1, Issue 2, Pages 129 - 152
(August 2010)
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AN AVOIDABLE MARITIME CONFLICT: DISPUTES REGARDING MILITARY ACTIVITIES IN THE EXCLUSIVE ECONOMIC ZONE
Brian Wilson
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Abstract:
The most important swath of water on earth is the Exclusive Economic Zone (EEZ). Approximately 36 percent of the world’s oceans are in the 200-nm EEZs, 75 percent of the population lives within 100 miles of a coast and more than half of the known oil reserves are located there. It is also the most likely area for maritime engagements, including piratical attacks and terrorist strikes. An unfortunate category of confrontations in the EEZ have occurred, not from criminals or terrorists, but as a result of varying interpretations of the provisions of the 1982 United Nations Convention on the Law of the Sea. The EP-3 and USNS IMPECCABLE incidents between the People’s Republic of China and the United States underscore the gravity of this relatively new, deadly and entirely avoidable issue.
At least seventeen states have claimed a 200-mile territorial sea or passed legislation regarding their ability to restrict transits and activities in the EEZ. In part, those states and some in academia have contended that LOS Convention terms are ambiguous at best and can be fairly interpreted to provide coastal states with sovereignty-not just sovereign rights-in the EEZ. Even without sovereignty, which they claim they have, sovereign rights provide a security interest and with that security interest comes the legal, political and military authority to dictate what occurs in the EEZ and who transits or operates there.
The position that China, among others, advances regarding sovereignty in the EEZ was debated, discussed, and rejected over the course of nine years of LOS negotiations. Views which disregard negotiating history or creatively parse LOS articles undermine the Convention’s authoritative force by stoking uncertainty and jeopardizing the sea-lanes of communication. This is not a conflict that was inevitable: While the Convention may not be a model of precision, the EEZ provisions are sufficiently clear.
Attempts to reconcile the two views through the development of special understandings, terms of agreement or an amendment to the Convention are misplaced. Such efforts would create more challenges and uncertainty than they purport to solve, as dispositive guidance currently exists. State-to-state discussions and not operational confrontations are the most effective immediate way forward to address these disputes. The long-term solution for maritime stability is civility, communication and respect for the rule of law. |
| Keywords and phrases: law of the sea convention, exclusive economic zone, EEZ, territorial sea, excessive maritime claim, high seas freedoms, freedom of navigation, FON, oceans policy. |
| Communicated by Hyo Choi |
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