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Our understanding of “freedom of navigation and overflight” and “other international lawful uses of the sea” in the EEZ is as follows:
First, “freedoms of navigation and overflight” in the EEZ are no longer freedoms of the high seas in the traditional sense because: (1) the 1982 UNCLOS has already excluded the EEZ from the high seas; (2) though Article 58 stipulates that other States enjoy some freedoms in the EEZ, at the same time, the Convention explicitly requests that “in exercising their rights and performing their duties under this Convention in EEZ, 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”; (3) the freedoms exercised in the EEZ must not contravene the regime of the EEZ, and (4) the 1982 UNCLOS requests that while exercising high seas freedoms, all States must have due regard for the interests of other States in their exercise of high seas freedoms.
Second, “freedoms of navigation and overflight” in the EEZ does not include the freedom to conduct military and reconnaissance activities in the EEZ and its adjacent airspace. Such activities encroach or infringe on the national security interests of the coastal State, and can be considered as a use of force or a threat to use force against that State. The 1982 UNCLOS clearly states that the EEZ should be used only for peaceful purposes. Military activities in the EEZ violate the principle that in exercising their rights and performing their duties under this Convention, States Parties shall refrain from any threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the principles of international law embodied in the Charter of the United Nations.
Third, the term “other internationally lawful uses of sea” does not include the freedom to conduct military activities in the EEZ of another State. Viewed either from the perspective of the EEZ regime or from the coastal State’s right to protect its own national security interests, coastal States have the right to restrict or even prohibit the activities of foreign military vessels and aircraft in its EEZ. To interpret the “freedoms of navigation and overflight” in the EEZ as the freedoms to conduct military and reconnaissance activities, to perform military deterrence or battlefield preparation, and intelligence gathering, obviously contradicts the lofty spirit and goal of the 1982 UNCLOS, that is “establishing through this convention, with due regard for the sovereignty of all States, a legal order for the seas and oceans which will facilitate international communication, and will promote the peaceful uses of the seas and oceans, the equitable and efficient utilization of their resources, the conservation of their living resources, and the study, protection and preservation of the marine environment.”
5. Peaceful Purposes vs Peaceful Uses
Article 58 of UNCLOS refers to Article 88 and states that the EEZ “shall be reserved for peaceful purposes”. Article 246 quotes from Article 240 and emphasizes that MSR in the EEZ should be conducted “exclusively for peaceful purposes”. Besides these provisions, the term ‘peace’, either alone or together with the terms “security and good order”, appears in various regimes stipulated by the 1982 UNCLOS. The intent is to emphasize the ‘peaceful use of the sea’ or to ‘preserve the sea for peaceful purposes.’ However, except for the regime of the territorial sea, the 1982 UNCLOS does not interpret or further explain the terms ‘peaceful purpose’ and ‘peaceful uses.’ Since the 1982 UNCLOS came into force, there has been a sharp increase in military uses of the EEZ. Thus the meaning of ‘peaceful purpose’ and ‘peaceful use’ have stimulated arguments.
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