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· The second way is to directly graft the elaborated rule of “peaceful uses” to certain regimes. For example, the Convention grafts the regime of innocent passage on to the regime of straits used for international navigation and archipelagic sealanes passage, thereby carrying the principle of “peaceful uses” of the sea along with it. Article 39 stipulates that ships and aircraft, while exercising the right of transit passage, shave have the obligation to “refrain from any threat or use of force against the sovereignty, territorial integrity or political independence of States bordering the strait, or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations.” Article 45 directly applies the regime of innocent passage in straits used for international navigation. Articles 52, 53 and 54 apply the regime of innocent passage and the regime of transit passage in archipelagic waters and archipelagic sealanes passage.
· The third way is to emphasize “peaceful uses” of the sea in general terms only but without specific criteria. For example, Article 301 only mentions “peaceful use” of the sea in general terms and stipulates 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”. Article 58 refers to the provisions of Article 88 and stipulates that “the high seas shall be reserved for peaceful purposes”. Article 141 stipulates “the Area shall be open to use exclusively for peaceful purposes by all States”. Article 240 provides that “MSR shall be conducted exclusively for peaceful purposes”.
The dispute focuses on the meaning of “peaceful use” of EEZ. The activities causing such disputes are mainly military surveys, military maneuvers, military reconnaissance activities and other activities not having a direct bearing on passage or overflight conducted by foreign military vessels and aircraft in the EEZ and in the air space above it. The coastal countries hold that these activities are encroachments on their national security because they are an electronic prelude to invasion and thus a threat to use force, and therefore a non “peaceful use” of the sea.
How do scholars of international law view this issue? There are three scholarly interpretations of this principle. The first interpretation is that “peaceful use” of the EEZ does not prohibit military activities conducted in a general way, and that the exclusive use of the high seas for “peaceful purpose” only means that all States using the high seas bear the obligation of non-aggressive uses. Another view based on modern international law is that the presence of navy forces in the sea area under of the jurisdiction of a State, just as any other naval operations of a State beyond its national territory, may or may not be legal. Their activities must be in accord with the generally recognized principles of modern international law and the UN Charter or they could contravene these principles and thus be illegal. The third interpretation is that the provision regarding “peaceful use” of the sea is purely academic without any practical meaning.
In defining the regime of innocent passage, the 1982 UNCLOS has already interpreted “peaceful uses” of the sea. As naval weapon systems evolve, non-innocent passage activities as stipulated by the 1982 UNCLOS are increasingly conducted in the EEZ. If current international law indicates that the activities carried out in the territorial waters of the coastal State are prejudicial to the peace of the coastal State, then the same activities carried out in the EEZ, are also prejudicial to the peace, good order and security of the coastal State, and thus should be considered “non-peaceful” and be prohibited.
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