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What we are discussing here is not the EEZ regime itself but the military and reconnaissance activities conducted by military vessels and aircraft in the sea area called “EEZ” and the airspace above it. Can these activities be carried out in this sea area? If so, to what extent can these activities be carried out? If so to what extent will coastal countries accept these activities? It seems that we are formulating a “new regime” for maritime military uses in a changing environment. We sincerely hope that this new regime will some contribute to the peace, tranquility and good order in the offshore areas of all coastal States.
8. Due Regards
Article 56 and Article 58 of UNCLOS have respectively stipulated that the coastal States and other States should have due regard for the rights and obligations of other nations when exercising their rights and obligations in line with the Convention. Though the Convention did not clearly explain the term “due regard”, the additional remarks of Article 56 and Article 58 after “due regard” are of significance. The former provides that the coastal State should have due regard to the rights and duties of other States and “shall act in a manner compatible with the provisions of this Convention”, while the latter demands that other States should 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”.
The two “due regards” do not mean that when conflicts arise between the coastal State exercising its rights and another State exercising its freedoms, the two parties have equal rights. This point can be seen from the different ‘qualities’ and ‘quantities’ (nature and extent) of the rights and the freedoms of the two “due regards”.
In its EEZ, the coastal State enjoys sovereign rights of possession, exploration, exploitation, conservation and management of its natural resources, exclusive jurisdiction over the protection and preservation of the marine environment, MSR, and the establishment and use of artificial islands, installations and structures. These rights and jurisdiction form the core part of the EEZ regime. Other States only enjoy the freedoms subject to the regime of the EEZ. To be more specific, the actions of other States should be subject to the sovereign rights and the exclusive jurisdiction of the coastal States. Logically speaking, when resolving conflicts between these two categories of rights, the sovereign rights and exclusive jurisdiction of the coastal States should be considered superior.
The relevant terms used in the provisions of the 1982 UNCLOS also show that the sovereign rights enjoyed by the coastal States are superior. The “sovereign rights” first appeared in the 1958 Geneva Convention on the Continental Shelf, and were used to refer to the rights of the coastal States over their continental shelf. These rights are sovereign, natural, comprehensive and superior to the rights of other States. However, in the balance created by the EEZ regime, the sovereign rights and exclusive jurisdiction enjoyed by the coastal State are restricted by the 1982 UNCLOS and other rules of general international law. But these restrictions do not necessarily degrade the superiority of the rights of the coastal States. Therefore, the 1982 UNCLOS obliges the coastal States and other States to “act in a manner compatible with the provisions of this Convention”, but requires other States to “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 …”.
During the drafting of the 1982 UNCLOS, one scholar concluded that “the breadth of the rights of the coastal States within the EEZ and the sovereign nature of the rights of the coastal States regarding the exploration of the resources within the EEZ, give the coastal States undisputable superiority when conflicts arise between the rights of the coastal States and other states”. Specifically as to between the exercise of the exclusive rights by the coastal State and the enjoyment of navigational freedoms by other states, priority should be given to the coastal States regarding the resolution of the conflict of rights.
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