Peer reviewed analysis from world leading experts

The US is undermining its claims to navigational rights in other's EEZs

Reading Time: 4 mins
The USS Guardian, a U.S. Navy minesweeper, is seen at the Vicinity of South Islet in Tubbataha Reefs in a marine protected area of the Philippines in the Sulu Sea, 18 January 2013 (Photo: Armed Forces of the Philippines/Reuter)

In Brief

The United States has long maintained that freedom of navigation for warships in foreign 200-nautical-mile-wide exclusive economic zones (EEZs) is essentially absolute. But the United States is undermining its own position by placing restrictions on its own military’s activities — and presumably those of foreign militaries—in its own EEZ.

Share

  • A
  • A
  • A

Share

  • A
  • A
  • A

China along with many other countries disagree with the claim that freedom of navigation in EEZs is absolute, and have placed restrictions on the activities of foreign warships and aircrafts in their EEZ. Military activities in EEZs were a controversial issue during negotiations over the 1982 UN Convention on the Law of the Sea (UNCLOS) and continue to be so in state practice. Some coastal states contend that other states cannot carry out military exercises or manoeuvers in or over their EEZ without their consent. These states include Bangladesh, Brazil, Cape Verde, India, Pakistan, Malaysia, Myanmar, Uruguay and even the US ally, Thailand.

This is an extreme position that is strongly protested and often tested by the United States and other maritime powers. A milder but still contentious aspect of this debate is whether or not coastal states like China have the right to limit foreign military activities in their own EEZs if they present a threat to the marine environment, among other reasons.

For the United States’ to impose restrictions on military activities in its own EEZ would be contrary to its position that freedom of navigation for warships and warplanes in foreign EEZs cannot be restricted. But that is exactly what has happened.

The United States has designated a protected habitat encompassing 17,500 square miles of water around Hawaii — extending well into its EEZ — to protect the local false killer whale population. The habitat must be ‘free of anthropogenic noise that would significantly impair the value of the habitat’ for false killer whale use or occupancy’. This presumably includes the use of explosives and potentially damaging sonar. This is a significant signpost in the long-standing debate over freedom of navigation, both in the United States and globally.

This is not the first designation of protected areas on environmental grounds that restricts freedom of navigation in EEZs, and it won’t be the last. In 2013, a federal judge sided with environmental groups in their lawsuit against the US government. The environmental groups accused navy training exercises off the West Coast involving sonar of being harmful to endangered whales, dolphins and other protected marine mammals. Under a negotiated agreement, the US Navy will no longer carry out these tests, training exercises or set off explosives in specified habitats around the Hawaiian Islands and southern California.

The United States has a total of 14 national marine protected areas encompassing nearly 800,000 square miles. Much of that territory lies is in its EEZ and includes sensitive marine ecosystems in waters off American Samoa, Hawaii, California and Texas. Designation as a protected area does not automatically prohibit military activities. But some protected areas do ban activities that disturb marine mammals, seabirds and sea turtles. In some cases, this can even include the operation of aircraft over certain zones.

Restrictions on military activities in EEZs to protect the environment is a legal trend—at least in the United States —and may serve as a precedent and model for other countries, including China. Environmental groups say mid-frequency sonar used by the US Navy has been linked to fatal mass strandings of marine mammals around the world, including in the Bahamas, Greece, the Canary Islands and Spain.

Yet the United States continues to assert its expansive interpretation of freedom of navigation and conduct its intelligence, surveillance and reconnaissance missions in other countries’ EEZs, despite protests from countries such as China that these activities may be violating its domestic laws regarding, among other issues, the protection of its environment. These countries also claim that such activities do not pay ‘due regard’ to the rights and duties of the coastal state as required by UNCLOS, especially the duty to protect the environment.

The United States vigorously protests in word and deed these attempts to limit freedom of navigation. But when military activities involve live firing, explosives or sonar that may interfere with or damage mammals and fisheries, the balance of interests established by UNCLOS Article 59 likely weighs in favour of the coastal state. The coastal state can easily justify its right and responsibility to manage its resources and protect its marine environment. The user state would have the more difficult task of explaining why its operations have to be conducted within that particular EEZ, and not on the high seas or within its own EEZ.

Mark J Valencia is Adjunct Senior Scholar at the National Institute for South China Sea Studies.

This article originally appeared here in the IPP Review.

One response to “The US is undermining its claims to navigational rights in other’s EEZs”

  1. Mark J Valencia, the author of The US is Undermining its Claims to Navigational Rights in Other’s EEZs, couldn’t be further from the truth – not just in the article – but the title of the article itself.

    As Mr. Valencia correctly points out, the United Nations Convention on the Law of the Sea (UNCLOS) does indeed allow a state to exercise sovereign rights for the exploration and exploitation, conservation and management of the living and nonliving resources in its Exclusive Economic Zone (EEZ). What Mr. Valencia does not point out, however, is that in many instances China has forcefully attempted to compel compliance with its interpretation of this aspect of UNCLOS, regardless of what the vessel was doing in its EEZ. Further, China claims that any foreign military vessel operating in its EEZ must provide notification and receive approval before operating in China’s EEZ – again, regardless of what the vessel will do.

    More important – and beyond the hypothetical, theoretical, and multiple interpretations of UNCLOS as discussed in the paragraph above – are the actions of the U.S. and China. China’s PLA Navy has operated in U.S. EEZ waters without following rules it insists other countries follow when operating in its EEZ, such as notifying and receiving approval ahead of time. Additionally – and unlike China – I am unaware of any instance in which the U.S. has used force against any foreign vessel in its EEZ other than when the foreign vessel was exploiting natural resources.

    Finally, the author writes that this protection of habitat extends “well into its EEZ,” (my italics) when it would have been just as easy to characterize the habitat as extending “within its EEZ.” Whether the habitat extends “well into” or “within” its EEZ, it’s still within the limits delineated by UNCLOS.

Support Quality Analysis

Donate
The East Asia Forum office is based in Australia and EAF acknowledges the First Peoples of this land — in Canberra the Ngunnawal and Ngambri people — and recognises their continuous connection to culture, community and Country.

Article printed from East Asia Forum (https://www.eastasiaforum.org)

Copyright ©2024 East Asia Forum. All rights reserved.