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To sum up, our understanding of “peaceful purposes” or “peaceful uses” in the EEZ is as follows.
1. The “peaceful purposes” provision is an explicit legal criterion. Once this criterion is listed in the 1982 UNCLOS, it should have legal effect, that is, the use of sea areas for non-peaceful purposes is illegal.
2. If the “peaceful purpose” provision does not mean “complete non-militarization” and does not prohibit normal navigation and overflight of naval vessels and military aircraft in above the EEZ, then it does obligate States Parties not to engage in“aggressive”activities or undertake activities contrary to the UN Charter.
3. The “peaceful purpose” provision has different legal requirements for the coastal State and other states in different types of waters – the territorial waters, the EEZ and the high seas. The definition of innocent passage in the 1982 UNCLOS defines “peaceful uses” in other sea areas.
4. At present, based upon the rapid technological evolution of military equipment, it is necessary for the international community to clearly prohibit or restrict in the EEZ certain activities which are “non-innocent”, and harmful to the peace, security and good order of the coastal countries.
7. Residual Rights Rule
Article 59 of the 1982 UNCLOS stipulates that in cases where this Convention does not attribute rights or jurisdiction to the coastal State or to other States within the EEZ, and a conflict arises between the interests of the coastal State and any other State or States, the conflict should be resolved on the basis of equity and in the light of all relevant circumstances, taking into account the respective importance of the interests involved to the parties as well as to the international community as a whole. This is the rule of “residual rights”. Reasonable interpretation of this rule is of great significance to the issue of the military use of the EEZ.
However, different conclusions could be reached based on different perspectives. One interpretation is that if the rule of “residual rights” applies to the EEZ regime, then the EEZ regime is not purely a system for distribution of marine natural resources but a comprehensive legal regime which covers a large part of the world ocean and the airspace above it as well as all human activities therein, such as navigation, overflight and military usage. If this is so, then “residual rights” should include “all other rights” which occur in the EEZ and which have not yet been distributed in the present EEZ regime. In this case, then our discussions on the legal issue of the military uses of EEZ should continue within the regime of the EEZ.
Another interpretation is that the rule of “residual rights” does not apply to the improvement of the EEZ regime as a system for distribution of natural resources, but instead is used for resolving future disputes, e.g., military and reconnaissance activities in the EEZ. Then the dispute is not about the EEZ regime itself but rather about certain activities in this sea area. In this case the military and reconnaissance activities in the EEZ and its adjacent air space have nothing to do with the EEZ regime and should be discussed as an issue stemming from “exclusive security zones.”
We hold that when discussing the issue of the military uses of the EEZ through the perspective of residual rights, the following key questions should be addressed. Do “residual rights” refer to “residual rights” under the EEZ regime or “residual rights” which already exist or are newly created for the EEZ? Does the right of military use of the EEZ belong to the former or the latter? Should the issue of military uses of the EEZ be discussed in the EEZ regime or outside of the EEZ regime, such as a coastal State security zone, or a regime of maritime military uses?
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