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.