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Volume 5

April 2009

Number 1

Abroad Thoughts from Home

with Ian Townsend-Gault
Director of the Centre for Asian Legal Studies
Faculty of Law, University of British Columbia
Vancouver, Canada

Hardly Impeccable Behaviour:
Confrontations between Foreign Ships and Coastal States in the EEZ

By Ian Townsend-Gault and Dr. Clive Schofield

[This article was commissioned by the British Broadcasting Corporation, and appears, in the Vietnamese language, on the Vietnam web pages of bbc.co.uk.]

The Impeccable Incident
On March 9 of this year, it was reported that there had been an incident in the South China Sea involving a number of Chinese civilian and naval vessels and a single ship from the US Navy, the USS Impeccable. Of particular concern was the last in a series of incidents which saw one Chinese vessel coming within 25 feet of the Impeccable which, being unarmed, sprayed the Chinese vessel with its fire hoses as a warning for it to keep clear. Those Chinese vessels made it plain that they wished the US ship to "leave the area". These represent worrying developments. Who is in the right?

This latest confrontation reportedly took place approximately 75 miles south of Hainan Island, well beyond China's territorial waters, but within its 200 nautical mile exclusive economic zone (EEZ). The US position is that the Impeccable was engaged in peaceful activities on the high seas: there has not been an official Chinese reaction to the incident. So the question is simply this: what right does China or any state have to control shipping in its EEZ, and what rights do vessels from other states have in that area?

The Law of the Sea
The rules of the road (or sea) relating to maritime jurisdictional claims who can-and can't-do what in the exclusive economic zone are found in an international treaty called the United Nations Convention on the Law of the Sea of 1982. China has signed and ratified the Convention and so is bound by its terms. The United States is not (yet) a party to this widely accepted multilateral treaty (boasting 157 State Parties) but nonetheless conducts its maritime policies squarely on the basis of the Convention and supports the EEZ concept. But do China and the US have the same understanding as to the interpretation of rules set out in the Convention? The Impeccable incident indicates strongly that they do not. To understand why this is the case, a little history is in order.

Up to the middle of last century, coastal state jurisdiction over the oceans was restricted to sovereignty over a narrow belt of coastal waters called the territorial sea. Indeed, the breadth of the territorial sea generally did not exceed three nautical miles from the coast in line with what was called the 'canon shot rule' - that is the distance offshore that shore artillery could reach (though it is worth noting that Scandinavian claims to a four mile territorial sea stemmed from claims that they possessed superior canon!). Beyond these restricted coastal territorial seas lay the high seas under the jurisdiction of no nation and this scenario ensured global freedom of navigation. At that time, therefore, coastal states did not exercise marine jurisdiction of any kind (with the exception of ships flying their flag) beyond the limits of the territorial sea. This meant that fishing, and any other activity, was unregulated so far as international law was concerned. A coastal state could control the activities of its own fishers (and other nationals engaged in other activities), but had no power over the citizens of any other state.

Creeping coastal state jurisdiction
Wind forward to the mid-twentieth century and a number of developments, notably the realistic possibility of the exploitation of offshore oil and gas resources, decolonisation and the emergence of numerous developing countries, led to increasing pressures from coastal states for increased access to and control over valuable marine resources off their coasts. This in turn led to a phenomenon termed "creeping coastal state jurisdiction" with coastal states claiming more and more rights to ocean spaces further and further offshore.

Ironically for the present debate, this trend can in large part be traced back to US President Harry Truman's 1945 declaration that the United States would exert jurisdiction over the petroleum resources of seabed areas contiguous to the US but beyond the limit of its territorial sea. The US lead was swiftly followed by the world in general and by the 1970s there was growing consensus among states in favour of coastal state rights over the resources not only contained in the seabed rights but also jurisdiction over fisheries resources out to 200 nautical miles.

The Law of the Sea Convention was essentially designed to bring order to the oceans and to codify clear rules to which all states could make claims to maritime jurisdiction. In many ways the Convention has been a tremendous success. A key achievement of the Convention was the definition of clear spatial limits to national maritime claims. Thus the breadth of the territorial sea was set at 12 nautical miles - something that had persistently eluded previous efforts at codification. Another major achievement was the introduction of the exclusive economic zone (EEZ).

The EEZ Transforms the Oceans
The Convention therefore lays down a vital framework that largely halted "creeping coastal state jurisdiction" at least as far as the geographic extent of maritime claims is concerned. That being said, the transformation of the Oceans wrought by EEZ claims is astonishing. EEZs encompass 147km million or around 41 per cent of the world ocean - an area roughly equivalent to area of land territory on the surfact of the Earth. This enormous extension of maritime claims out to 200 nautical miles offshore and beyond (in the case of certain continental shelf areas) has meant a proliferation in the number of potential maritime boundaries around the world and an allied increase in the number of overlapping maritime claims and disputes. A new form of "creeping coastal state jurisdiction" has, however, arisen - states are increasingly claiming additional rights within their EEZs, eroding the high seas freedoms within them and essentially trying to transform their EEZs into 200 nautical mile territorial seas. The Impeccable incident is a recent manifestation of this trend.

In This Issue

Pirates Not of the Caribbean
Dr. Clive Schofield

Easter 2009: Somalia Gets Death, But No Resurrection
Editorial by C.G. Bateman

Literary Voices
Contributions from C.H. Allen Clark and George Moore

An African's Perspective: The UN in Somalia
Environmental Consultant and Somalian Citizen Aweis Issa reports on the Situation on the Ground in Somalia

Balancing rights and duties in the EEZ
The EEZ represents a balance between competing interests. Coastal state desires for increased control over offshore resources were accommodated. Under the EEZ regime coastal states are granted sovereign rights to exploit the resources found therein (together with some notable obligations in terms of the conservation and management of those resources and the marine environment). The introduction of the EEZ regime, combined with extensive continental shelf claims, has led to a tremendous increase in the scope of maritime claims and represents the largest reallocation of resource rights, from international to national regimes, of the twentieth century. Indeed, in 1984 the United Nations estimated that 87 per cent of the world's known submarine oil deposits and 90 per cent of marine fish and shellfish were caught within 200 nautical miles of the coast.

Coastal states were not, however, granted full sovereignty over the EEZ. Beyond these specific and essentially resource-oriented rights for coastal states the traditional high seas freedoms, including those relating to navigation and communications, remain intact within EEZs. This met the interests of those states interested in ensuring that the seaborne trade vital to the world economy continued unfettered as well as the security interests of the maritime powers (including those of both the US and Soviet Union at the time).

Thus, the basic rule is that the coastal state has absolute rights to control the exploration for and exploitation of living and nonliving resources of the sea, seabed and its subsoil within the EEZ. It has rights for other economic purposes such as the generation of energy from wind, tides, and current. It can also control marine scientific research there. But it has no right to control foreign naval or merchant shipping, unless it interferes with the exercise of EEZ rights. In particular, Articles 58 and 87 of the Convention provide that all foreign states (i.e. including non-parties like the US) enjoy the right of freedom of navigation and overflight, and of the laying of submarine cables and pipelines in the EEZ, as well as "other internationally lawful uses of the sea related to these freedoms." However, in exercising these rights, foreign vessels must have "due regard" for the rights and duties of the coastal state. Thus, a balance between competing interests was achieved.

Application to the Impeccable Incident
The fact that the Impeccable was trailing sonar arrays (and we know that this equipment was deployed because the US Navy published a photograph of personnel on a Chinese trawler attempting to cut it), indicates that it was engaged in surveying work of some sort. This might have been hydrographic research-mapping the seabed-or surveying for obstacles to underwater navigation. So the question now becomes: are foreign vessels, particularly foreign naval vessels, entitled to conduct surveying in the exclusive economic zone of another state? Further, were the activities of Impeccable being conducted without the necessary due regard for China's rights and obligations?

The first point to make is that "marine hydrographic surveying", as an activity, is clearly recognized by the Law of the Sea Convention. It is quite distinct from marine scientific research on one hand, and the exploration for resources on the other. In practical terms, there is the potential for a blurring of the boundary between these three activities, but the point is, they are envisaged as being quite distinct by the convention. Part two of the Convention, dealing with the territorial sea and contiguous zone, is quite clear that activities such as marine scientific research and hydrographic surveying are subject to the complete jurisdiction of the coastal state within the territorial sea. But part five of the Convention, on the EEZ, provides that the coastal state can regulate marine scientific research, but makes no mention whatever of hydrographic surveying. This silence is significant.

Some have argued that since hydrographic surveying is not declared to be a right of any and all ships, it is up to the coastal state to regulate it. In light of the historical development of the law of the sea traced above, coupled with the delicate balancing of rights and interests in the EEZ regime established under the Law of the Sea Convention, we cannot agree.

With this background in mind, it should follow that any activity such as hydrographic surveying, which is not expressly declared to be within the jurisdiction of the coastal state, remains one of the freedom of the seas. It is not necessary for the Law of the Sea Convention to provide that any country has the right to engage in hydrographic surveying in the EEZs of other states. That right already existed. This is the right the United States is asserting in this incident.

With regard to the question of "due regard" it is worth emphasising that this is in fact a double edged sword. While foreign vessels are to have due regard for coastal state rights, so too are coastal states to have due regard for the rights of vessels of the international community engaged in activities falling within the broad category of "other internationally lawful uses of the sea" within claimed EEZs. Conducting hydrographic surveying falls squarely within this definition and it is difficult to discern an adverse impact of this activity on the part of the US vessel on China's resource-related rights within its EEZ.

It is of course possible for the international community to develop rules of customary international law-law based on state practice-to the effect that hydrographic surveying in the exclusive economic zone comes within the jurisdiction of the appropriate coastal state. China is not the only country that seeks to assert this form of jurisdiction. But there is significant resistance to this on the part of a number of countries-the United States is by no means alone. Given the entrenched positions, it seems unlikely that there will be a generally accepted rule of customary international law extending state jurisdiction to covering activities such as those being undertaken by the Impeccable. But this is not to say that international law is neutral on this issue.

As we said above, there is an existing right, derived from the ancient notion of the freedom of the seas. China, and likeminded states, are trying to change the status quo. But until they succeed, the status quo remains.

It follows, therefore, that the only justification for Chinese harassment of the American vessel would be if it had been engaged in activities over which China has sovereign rights, or in marine scientific research. Since China has yet to comment officially on this incident, it is impossible to know whether the American vessel is being accused of violating China's rights. But if the whole incident arose from China's desire to keep its 200 nautical mile limit clear of foreign warships, then it was acting beyond its rights at international law.

China's ill-advised return to creeping coastal state jurisdiction
Indeed, China may have picked the wrong country with whom to have this confrontation. The United States has always been a staunch defender of what it sees as the freedom of navigation, and has adopted attitudes which have put it at odds with archipelagic countries like Indonesia and Japan. The US held out against the 200 nautical mile limit for many years, changing its mind and declaring its own exclusive economic zone only after it was clear that the coastal states of the world had accepted the concept and it was here to stay. Upholders of the rule of international law would say that if China has something to complain about, it should make its reasons clear. There is no sign that the international community as a whole is in favour of broadening a coastal state's rights to control foreign vessels in the exclusive economic zone. Given China's interest in expanding its naval activities, this isn't in the interests of China either.

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