专属经济区军事利用的法律问题：中国的视角
Legal Issues Regarding Military and Intelligence Gathering Activities in the EEZ and Adjacent Air Space: A Chinese Perspective
Ren Xiaofeng
【摘要】Abstract: Regarding the regime of military and intelligence gathering activities in the EEZ, China argues that the freedoms of navigation and overflight in the EEZ have certain restrictions including that the activity must be peaceful and not threaten to use force against the coastal State. This includes military surveys, military maneruvers, and military reconnaissance which are a form of battlefield preparation. These activities are also subject to due regard for the rights of the coastal State. It also argues that there are serious shortcomings regarding the regime of MSR in the EEZ and the marine surveys or military surveys carried out by MSR platforms require the consent of the coastal State.
【全文】
There is a stark dichotomy of views on these issues. Some maritime experts persistently maintain that conducting military and intelligence gathering activities in the EEZ and its airspace is an exercise of freedom of navigation and overflight on the high seas and “other internationally lawful uses of the sea” related to this freedom as provided in the 1982 UNCLOS. Moreover, they argue that the activities are conducted for “peaceful purposes” and therefore do not violate international laws. However, many developing coastal States insist that these activities are an abuse of “freedom of navigation and overflight” and “other internationally lawful uses of the sea,” and are “non-peaceful”, having encroached on the national security interests of the coastal States. They argue that these activities undermine the peace, tranquility and good legal order in their EEZs and thus violate their sovereign rights and exclusive jurisdiction. The legal principles on which various parties base their views are essentially the same, but their conclusions are completely different. Therefore, it is necessary to clarify and resolve the legal issues surrounding such activities through an examination of the basic concepts of the EEZ regime.
However, based on international discussions and practices, the EEZ regime has shortcomings which can be linked to unclear and different concepts of the regime. The basic concepts in the EEZ regime that are most disputed include the specific legal regime, sovereign rights and exclusive jurisdiction, due regard, freedom of navigation and overflight, peaceful purposes, marine scientific research (MSR), and other internationally lawful uses of the sea related to these freedom.
The preamble of the 1982 UNCLOS states that the States Parties to this Convention realize that “the problems of ocean space are closely interrelated and need to be considered as a whole”. Also, when we interpret these basic concepts, we should bear in mind that the 1982 UNCLOS is “pieced together and consists of” various parts produced by different working groups. Thus we should interpret the treaty according to the general rules for such treaty interpretation, i.e., “in good faith”, “in accordance with the ordinary meaning given to the terms,” and “in the light of its object and purpose.”
1. The Specific Legal Regime
Article 55 of the 1982 UNCLOS stipulates that the EEZ is “subject to the specific legal regime established in this Part, under which the rights and jurisdiction of the coastal State and the rights and freedoms of other States are governed by the relevant provisions of this Convention”. The key components of this specific legal regime include: Articles 56, 57, 58, 59 and 74. But Article 57 and Article 74 stipulate the principles of delimitation of the EEZ between States with opposite or adjacent coasts. All the other articles stipulate the quality and the quantity of the rights and obligations enjoyed by coastal States and other States in this area. Article 56 states that the coastal State “has sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources” and exclusive jurisdiction as provided for in the relevant provisions of this convention with regard to “certain issues”. Article 58 states that “all States enjoy, subject to the relevant provisions of this convention, the freedoms referred to in Article 87 of “navigation and overflight” and “other internationally lawful uses of the sea related to these freedoms”. This Article also stipulates that “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”. Article 59 established the “basis for the resolution of conflicts regarding attribution of rights and jurisdiction in the exclusive economic zone”, that is, the so-called “residual rights rule”.
