SECURITY AND THE LAW OF THE SEA IN EAST ASIA:
NAVIGATIONAL REGIMES AND EXCLUSIVE ECONOMIC ZONES
by
Sam Bateman
(Paper for SLS and BIICL Symposium on the Law of the Sea,
London, 22-23 March 2005)
Introduction
A strong interplay exists between the law of the sea and security at both the national and
regional levels. The law of the sea provides the legal framework for national rights and
obligations at sea, while it is also an important catalyst for regional security cooperation
and dialogue. A stable maritime regime, under-pinned by agreement on fundamental
principles of the law of the sea, is an important contribution to regional security.
However, the law of the sea can also be a potential source of tension. In the past, it was
largely the preserve of major Western maritime powers but in the last thirty years or so, it
has had to change significantly to meet the needs of newly emergent nations, including
some in East Asia, particularly Indonesia, that have been very active in defining the
contemporary law of the sea.
The basic clash of interests between on the one hand, coastal States wishing to extend and
tighten their jurisdiction over maritime space and on the other, the maritime or user States
seeking to maintain maximum freedoms of navigation, overflight, and scientific research
has important implications for regional security. A coastal or archipelagic State might
justify restrictions on rights and freedoms in its adjacent waters for reasons of national
security. It is concerned about protecting its sovereignty and sovereign rights in these
waters, and in ensuring that foreign vessels and aircraft do not operate in those waters in
a way that might be prejudicial to its security. However, other States, particularly

Dr Sam Bateman is a Professorial Research Fellow at the Centre for Maritime Policy, University of
Wollongong, NSW 2522, Australia (email address: sbateman@uow.edu.au), and currently also a Senior
Fellow and Adviser to the Maritime Security Programme at the Institute of Defence and Strategic Studies
(IDSS) in Singapore (email address: issambateman@ntu.edu.sg).
1
maritime or user States, see any restrictions imposed by a coastal State on navigation,
overflight and research as impacting negatively on their maritime security, particularly
their naval mobility and their ability to undertake defensive operations.
These tensions may become more evident in the future. Major Western navies are
structuring their forces for littoral operations and power projection,1 while regional
navies, including in East Asia, continue to focus on sea denial operations intended to
deny their littoral waters to the forces of a possible adversary. Expeditionary operations
in the littoral waters of other States clearly require maximum freedoms of navigation and
overflight while sea denial is supported by applying restrictions on those freedoms.
Many examples of these conflicts of interest may be found in East Asian waters. They are
apparent both with the implementation of navigational regimes (i.e. innocent passage,
straits transit passage and archipelagic sea lanes passage) and with the interpretation of
rights and duties in the exclusive economic zone (EEZ). This is in large part a
consequence of the maritime geography of East Asia, with the chain of seas along the
coast of East Asia and the off-lying archipelagic chain stretching from Japan through
Taiwan and the Philippines to Indonesia. Large areas of the Western Pacific are enclosed
as EEZ by one country or another, but the limits of maritime jurisdiction in the region are
often uncertain due to the lack of maritime boundaries and problematic claims to straight
territorial sea baselines.2 This complex maritime geography means that there are
numerous “choke points” for shipping and conflicting and overlapping claims to
maritime jurisdiction, as well as major problems in delimiting maritime boundaries. It
also underpins the propensity of most regional countries to exert maximum coastal State
jurisdiction over their adjacent waters.
1
Geoffrey Till provides an excellent contemporary review of how navies, predominantly Western, are
changing to reflect a focus on expeditionary operations in Seapower: a Guide for the Twenty-First Century,
London, Frank Cass, 2004.
2
Victor Prescott and Clive Schofield, “Undelimited Maritime Boundaries of the Asian Rim in the Pacific
Ocean”, Maritime Briefing, Vol.3, No.1, International Boundaries Research Unit, University of Durham,
2001.
2
In many ways the East Asian seas are now the global focus of law of the sea disputes. All
the critical issues with resolving ambiguities in the law of the sea, and the different points of
view on particular jurisdictional issues and the freedoms of navigation and overflight, may
be found in these seas. As a leading American marine policy expert noted some years ago,
“The Asian theater will be critical for shaping state practice in the law of the sea and
determining whether or not the 1982 Convention will really constitute the law in being.”3
This paper identifies key areas of disagreement in the region with the freedoms of
navigation and overflight, including in the EEZ, and discusses some recent incidents
involving these issues. It makes suggestions for cooperation and dialogue to improve the
current situation, and concludes with some thoughts on what might happen in the future.
Navigational Regimes
The 1982 UN Convention on the Law of the Sea (UNCLOS)4 and customary international
law identify three distinct navigational regimes:

innocent passage applying to the territorial sea and archipelagic waters;

transit passage through straits used for international navigation; and

archipelagic sea lanes (ASL) passage through archipelagic waters.
Innocent Passage
Innocent passage is the most restrictive of the passage regimes. It may be suspended in
certain circumstances,5 submarines must travel on the surface and show their flag,6 and
ships are prevented inter alia from operating organic aircraft and must not engage in any
activity that is prejudicial to the peace, good order and security of the coastal State. 7
Innocent passage applies only to ships and there is no associated right of overflight.
Problems arise with determining the activities of a ship that are “prejudicial to the peace,
Ed Miles, “U.S. Security Interests in a Post-Cold War World and the Law of the Sea”, paper prepared for
Anton, D., Charney, J., and O'Connell, M.E., Essays in Honor of Louis Henkin, 1997, p.8
4
United Nations Convention on the Law of the Sea, December 10, 1982, U.N. A/CONF.62/122, 1982,
reprinted in the Law of the Sea Official Text of the United Nations Convention on the Law of the Sea with
Annexes and Index, UN Sales No. E.83.V.5, 1983 and 21 I.L.M. 1261, 1982 (referred to in this article as
UNCLOS).
5
UNCLOS Article 24
6
UNCLOS Article 20
7
UNCLOS Article 19
3
3
good or security of the coastal State”.8 With an activity for example, “aimed at collecting
information to the prejudice of the defence or security of the coastal State”,9 there might
be no external indication of such activity from the movements or configuration of a ship.
The coastal State may suspect intelligence collection activities but then has no way of
proving that this is so.
Many countries regard the obligation to allow foreign ships the right of innocent passage
through their territorial sea as a significant limitation on their sovereignty and a potential
threat to their national security. Generally this is the situation in East Asia. This concern
underpins the way in which Japan and South Korea have limited the breadth of their
territorial sea in the vicinity of several international straits through their waters to six
miles10. This leaves a corridor of high seas through these straits. There is thus no right of
transit passage through these straits and foreign vessels are only able to enter the
territorial sea under the more restrictive regime of innocent passage. This means that
submarines, for example, are not able to operate close to shore submerged by claiming
the right of transit passage. If they wish to close the coast inside six miles, they should
surface and show their flag.
The major problem with the innocent passage regime in the region is the requirement of
some coastal and archipelagic States for prior notification or authorization of the innocent
passage of warships. There are over 40 States around the world that have this requirement
and these include the following East Asian countries: Cambodia, China, South Korea,
North Korea, Indonesia, Philippines and Vietnam.11 China specifically stipulated the
requirement in a Declaration on ratifying UNCLOS that included the following
statement:
The People's Republic of China reaffirms that the provisions of the United Nations
Convention on the Law of the Sea concerning innocent passage through the
8
UNCLOS Article 19(2)
UNCLOS Article 19(2)(c)
10
Farhad Talaie, “The Legal Status of the East Asian Straits of Korea (Tsushima) and Cheju: Navigational
Perspective”, Maritime Studies, 99, March/April 1998, pp.13-23.
11
J.A. Roach and R.W. Smith, Excessive Maritime Claims, International Law Studies Vol.66, Newport
R.I., USN War College, 1994, Table 10, pp. 158-159,
9
4
territorial sea shall not prejudice the right of a coastal State to request, in
accordance with its laws and regulations, a foreign State to obtain advance approval
from or give prior notification to the coastal State for the passage of its warships
through the territorial sea of the coastal State.12
A particular problem arises if the warship is conducting the passage purely for the
purpose of demonstrating the right of innocent passage without prior notification or
authorisation as required by the coastal State.13 This might be evident to the coastal State
by virtue of an obvious diversion from the direct navigational route. The coastal State
could well argue then that the diversion was not part of “continuous and expeditious”
passage as required by UNCLOS Article 18(2) and also, that the purpose of the diversion
in itself suggested an activity prejudicial to the security of the coastal State. The diversion
would be potentially captured in the “catch-all” phrase of “any other activity not having a
direct bearing on passage” in UNCLOS Article 19(2)(l).
It might be argued that USN vessels going out of their way to demonstrate a right of
unrestricted passage in the territorial sea of another State under the U.S. Freedom of
Navigation (FON) programme are in fact conducting non-innocent passage.14 While the
U.S. conducted FON operations against the “excessive claims” of 32 countries in FY
2000-2003 (including twelve that required prior notification or authorisation of warship
transit),15 significantly no operations were conducted against claims by China to prior
notification or against Chinese territorial sea straight baseline claims that the U.S. also
12
United Nations, "The Law of the Sea: Declarations and statements with respect to the United Nations
Convention on the Law of the Sea and to the Agreement relating to the Implementation of Part XI of the
United Nations Convention on the Law of the Sea", (United Nations publication, Sales No. E.97.V.3). See
also, Yann-huei Song and Zou Keyuan, “Maritime Legislation of Mainland China and Taiwan:
Developments, Comparison, Implications, and Potential Challenges for the United States”, Ocean
Development & International Law, Vol.31, 2000, p.329; and Zou Keyan, “Innocent Passage for Warships:
The Chinese Doctrine and Practice”, Ocean Development and International Law, Vol.29, 1998, p. 201.
13
U.S. Freedom of Navigation (FON) operations involve naval units transiting disputed areas to avoid
setting the precedent that the international community has adopted what the U.S. perceives as excessive
claims” to maritime jurisdiction.
14
William J. Aceves, “The Freedom of Navigation Program: A Case Study of the Relationship Between
Law and Politics”, Hastings International and Comparative Law Review, Vol.19, No.2, Winter 1996,
p.259-326.
15
U.S. Department of Defense, Freedom of Navigation FY 2000-2003 Operational Assertions,
http://defenselink,mil/policy/isp/fon fy00-03.html (accessed 14 Feb 2005).
5
regards as excessive. Perhaps the risks of a FON operation against China going wrong are
too strong even for the U.S.!
Transit Passage
The regime of straits’ transit passage gives all ships and aircraft the right to travel through
straits used for international navigation in their normal operational mode on, under or over
the water.16 It has particular significance for naval and air deployments by the U.S. and other
major naval powers. Coastal States adjoining a strait used for international navigation (the
straits’ States) have considerable service responsibilities towards the vessels passing their
shores (e.g. navigational aids, hydrographic charts and other navigational information,
search and rescue services, and marine pollution contingency arrangements) but UNCLOS
makes no provision regarding any form of cost-recovery. Compulsory pilotage schemes
have been considered from time to time as a means of enhancing navigational safety and
cost recovery, but they have not been introduced because refusing access to a strait to a
vessel on the grounds that it would not accept a pilot would amount to hampering transit
passage and be contrary to UNCLOS Article 44 in particular.17
In the past, Malaysia in particular has explored various methods of obtaining financial
contributions from the international shipping community to cover the costs of providing
services for ships passing through Malacca Strait. However, this has not been agreed by
the other littoral States although support is apparent for a higher level of control over
shipping. Indonesia may prefer the compulsory re-routing of larger tankers through the
Lombok Straits.18
16
The principles governing the regime are set out in Section 2 of Part III of the UNCLOS. A more
extensive discussion of transit passage in the region may be found in Sam Bateman, “The Regime of
Straits Transit Passage in the Asia Pacific: Political and Strategic Issues” in Donald Rothwell and Sam
Bateman (eds), Navigational Rights and Freedoms and the New Law of the Sea, The Hague, Martinus
Nijhoff Publishers, 2000, pp. 94-109.
17
Stuart Kaye, The Torres Strait, The Hague, Martinus Nijhoff, 1996, p. 85. The IMO Maritime Safety
Committee at its meeting in December 2004 agreed to a proposal from Australia and Papua New Guinea to
introduce compulsory pilotage for vessels transiting the Torres Strait and the Great Northeast Channel. This
could be an interesting precedent for other international straits.
18
Russell Swinnerton, “A Description of Regional Shipping Routes: Navigational and Operational
Considerations”, Maritime Studies, 87, March-April 1996, pp.10-22.
6
The application of LOSC Article 43, the so-called “burden sharing” article that provides for
cooperation between user States and States bordering a strait on the provision of
navigational and safety aids and the prevention of marine pollution, remains problematic.
User States, other than Japan, have been reluctant to contribute to the costs. However, the
ongoing incidence of piracy and armed attacks on ships in the straits and the threat of
maritime terrorism have focussed attention on the extent to which the principles of Article
43 might be extended to cover the security of shipping. In addition to the costs of providing
for maritime safety and pollution response in the straits, the littoral States are now
challenged to increase their patrol and surveillance activities in the straits against the threats
of piracy and maritime terrorism.
These issues were the focus of a major conference in Kuala Lumpur in October 2004 hosted
by the Maritime Institute of Malaysia (MIMA) on “The Straits of Malacca: Building a
Comprehensive Security Environment”. In opening the conference, the Deputy Prime
Minister of Malaysia, Datuk Seri Najib Razak, stated that “There should be no more free
rides for countries using the Straits of Malacca and user nations must contribute towards the
safety and security of the sea lane”.19 In addition to Japan, the user States that come to mind
in this context include the U.S., China, South Korea and Taiwan. This issue of burden
sharing will be high on the agenda of the high level conference to be organised by the
International Maritime Organization (IMO) in Jakarta, probably in July 2005, to consider
ways and means of enhancing safety, security and environmental protection in the Straits of
Malacca and Singapore.20
Reaching agreement on burden sharing will not be easy. Politics inevitably enter the
debate. Japan rather enjoys its monopoly position as the one user State involved in the
management of the straits, and has been rather less than enthusiastic in the past with
sharing this position with other user States, particularly China. As was demonstrated by
M.K. Megan, “Najib: Free rides in straits must end”, New Straits Times, October 12, 2004, p.8.
93rd Session, IMO Council 15-19 November 2004. The United Nations General Assembly in a resolution
adopted on 10 November 2004 encouraged the Secretary-General of the IMO to continue work on safety
and security in the straits in collaboration with the littoral States and user States.
19
20
7
their reaction in 2004 to the U.S. proposal of the Regional Maritime Security Initiative, 21
both Malaysia and Indonesia are sensitive to any attempt to “internationalize”
management of the Malacca-Singapore Straits that might compromise their sovereignty
and sovereign rights in the area. A number of the papers presented at the Straits of
Malacca conference in Kuala Lumpur last year, showed that the interests of the littoral
States frequently do not coincide.22
Archipelagic Sea Lanes Passage
With the two largest, and most vocal, archipelagic States (i.e. Indonesia and the
Philippines) in the region, the regime of the archipelagic State is of great importance in
East Asia. The archipelagic State exercises full sovereignty over archipelagic waters
qualified only by the regime of ASL passage which allows ships and aircraft of all
nations the right of “continuous, expeditious and unobstructed transit” through
archipelagic waters along and over sea lanes which may be designated by the
archipelagic State.23 If sea lanes are not designated, then the right of ASL passage may be
exercised through the routes normally used for international navigation.24 Outside these
sea lanes, ships of all nations have the right of innocent passage only,25 and there is no
right of overflight.
Indonesia
Indonesia’s proposal to designate three North/South ASLs in the early 1990s led to detailed
21
The Regional Maritime Security Initiative (RMSI) was launched by the U.S. in May 2004 with the
intention of establishing a cooperative regime for maritime security in the Malacca Straits but at least
initially, it was perceived as heavy-handed and insensitive by Malaysia and Indonesia. Major elements of
the RMSI include increased situational awareness, information sharing, a decision-making architecture and
interagency cooperation. For a fuller description of the RMSI see: ADM Tom Fargo USN, Commander,
US Pacific Command, Address to MILOPS Conference in Victoria, British Columbia, 3 May 2004, pp. 3-5
(available on website at: http://www.pacom.mil/speeches/sst2004/040503milops.shtml)
22
See in particular, Professor Dr. Hasjim Djalal, “The Malacca-Singapore Straits Issue”, Paper presented to
conference on “The Straits of Malacca: Building a Comprehensive Security Environment”, Kuala Lumpur,
11-13 October 2004.
23
UNCLOS Article 53
24
UNCLOS Article 53(12)
25
UNCLOS Article 52(1)
8
analysis and discussion at the IMO,26 as well as bilateral discussions between Indonesia and
interested user States, particularly the U.S. and Australia.27 This activity culminated in IMO
approval of the “General Provisions on the Adoption, Designation and Substitution of
Archipelagic Sea Lanes” (GPASL).28 The concept of partial designation of sea lanes is not
in line with UNCLOS Article 53 that requires the archipelagic State to designate all normal
routes used for international navigation. While the interests of user States are protected
through still having access to other routes, there was an outstanding onus on Indonesia to
complete the designation process. This has now been addressed by Indonesian with the
promulgation of Indonesian Government Regulation No.37/2002.29 This regulation
legislates for the three North/South ASLs but does not make clear whether this is a complete
or partial designation of sea lanes. While the regulation does not necessarily exclude the
designation of further ASLs, it does imply that for the time being the right of ASL passage is
only available in the designated ASLs and that only innocent passage will apply elsewhere
in Indonesia’s archipelagic waters.
The main vexed issue with the designation of Indonesian ASLs is the availability of an
East/West sea lane through the archipelago via the Java Sea, and linking the three
North/South lanes. The user States, Australia in particular with the regular movement of
both merchant vessels and warships through the archipelago from Northwest Australia to
Southeast Asia, have been concerned that this ASL should be declared. However,
declaration of this sea lane has steadfastly been resisted by Indonesia, mainly due to
environmental and security sensitivities with the Java Sea.
C. Johnson, “A Rite of Passage: The IMO Consideration of the Indonesian Archipelagic Sea-Lanes
Submission”, The International Journal of Marine and Coastal Law, Vol.15, No.3, August 2000, pp. 317332.
27
Robin Warner, “Implementing the Archipelagic Regime in the International maritime Organization” in
Rothwell and Bateman, Navigational Rights and Freedoms and the New Law of the Sea, pp. 170-171.
28
Indonesia’s proposal to designate three North/South archipelagic sea lanes (ASLs) and the General
Provisions on the Adoption, Designation and Substitution of Archipelagic Sea Lanes (GPASL) were
adopted at the 69th meeting of the IMO’s Maritime Safety Committee (MSC) in May 1998. GPASL form
part of the IMO Ships Routeing Publication.
29
Indonesian Government Regulation No. 37/2002, Relating to Rights and Obligations of Foreign Ships
and Aircraft when exercising Rights of Archipelagic Sea Lane Passage via the Established Archipelagic
Sea Lanes, enacted by the President of the Republic of Indonesia in Jakarta, June 28, 2002.
26
9
Philippines
The Philippines is now investigating implementation of the ASL passage regime in its
archipelago. Its situation will likely prove even more difficult than that for Indonesia. There
are four main reasons for this. First, the Philippines generally took a stronger and more
inflexible position than Indonesia at the Third UN Conference on the Law of the Sea
(UNCLOS III) on archipelagic State rights and associated passage regimes.30 During
UNCLOS III, the Philippines consistently argued that the right of innocent passage in
archipelagic waters could not be the same as it was in the territorial sea,31 and that its
archipelagic waters are in effect internal waters.32 Additionally, the Philippine delegate
intervened on several occasions during the negotiations on GPASL at the IMO to indicate
that the Indonesian approach should not represent a precedent for future ASL designations
by the IMO.33
Secondly, the Philippine archipelago is more complex than the Indonesian one with more
scattered islands and reefs and less well-defined shipping channels.34 It will be harder to
follow the same process as adopted for Indonesian ASLs with precise determination of the
geographical limits of sea lanes. The Philippines has a complex network of inter-island
shipping routes with a high incidence of major shipping disasters. Possible ASLs will cross
through areas where there are extensive subsistence and commercial fishing operations.35
There are serious concerns about the state of the marine environment of the Philippines.36
The dangers of ship-sourced marine pollution are likely to lead the Philippines to assert
Samuel Soriano, “Negotiating History of the Archipelagic Passage” in Maribel B. Aquilos, “Issue Focus:
Designation of Sea Lanes in the Philippines, Ocean Law and Policy Series, Vol.1, No.1, Jan-June 1997, p.
68.
31
Barbara Kwiatkowska and Etty R. Agoes, Archipelagic State Regime in the Light of the 1982 UNCLOS
and State Practice, Netherlands Cooperation with Indonesia in Legal Matters, Bandung: ICLOS, UNPAD,
April, 1991, p.19.
32
Tomas Aquino, “Implications of Sea Lanes Designation on Safety of Navigation and Sovereignty Issues”
in Aquilos, “Designation of Sea Lanes in the Philippines”, p.15.
33
Warner, “Implementing the Archipelagic Regime”, note 41, p. 187.
34
Jay Batongbacal, “The Philippines’ Right to Designate Sea Lanes in Its Archipelagic Waters Under
International Law” in ibid, p.108.
35
Marciano Antoneo F. Carreon III, “Implications of the Designation of Sea Lanes on the Fisheries Sector”
in ibid., pp.34-35.
36
Miguel D. Fortes, “Marine Scientific Research in the Philippines: Status, Problems and Prospects” in
Sam Bateman and Stephen Bates (eds), The Seas Unite: Maritime Cooperation in the Asia Pacific Region,
Canberra Papers on Strategy and Defence No 118, Strategic and Defence Studies Centre, Australian
National University, Spring 1996, pp. 122-128
30
10
strict controls over the passage of shipping through its archipelago.
Thirdly, the Philippine archipelago sits astride major shipping routes between the Americas
and southern China and Southeast Asia, as well as between northern Australia and the
Lombok Strait and Northeast Asia. The narrowness of some of the straits involved
highlights the difficulties that will be encountered in developing axis lines and applying the
ten per cent rule in UNCLOS Article 53(5).37
Lastly, there is the major political problem in the Philippines with the Treaty of Paris limits
(the so-called “picture frame” territorial sea around the Philippine archipelago). On signing
UNCLOS, the Philippines made a declaration that such signing did not affect the sovereign
rights of the Philippines under the Treaty of Paris,38 and that “the concept of archipelagic
waters is similar to the concept of internal waters under the Constitution of the
Philippines”.39 The Treaty of Paris limits are locked into Philippine public policy. It is
unlikely that any Philippine politician or Minister would propose a change to this situation.
Normal Mode
Ships and aircraft exercising the right of transit passage are required to “refrain from any
activities other than those incident to their normal modes of continuous and expeditious
transit”.40 Similarly, ASL passage means the exercise “of the rights of navigation and
overflight in the normal mode”.41 The interpretation of the normal mode has the potential
to become a vexed issue. It seems well accepted that the normal mode of transit for
submarines is submerged, but the types of operation that might be conducted by transiting
ships and aircraft seem more problematic. What are the limits for example on the
defensive screens, evasive tactics, air cover, etc that might be used by a naval task force
exercising the right of ASL passage? Indonesian Government Regulation No. 37/2002
declares that “when exercising right of Archipelagic Sea Lane Passage, foreign military
Batongbacal, “The Philippines’ Right to Designate Sea Lanes”, pp. 101-102.
Signed by Spain and the U.S. on 10 December 1898. This is the basis of the “picture frame” claim to
territorial sea
39
United Nations, "The Law of the Sea: Declarations and statements with respect to the United Nations
Convention on the Law of the Sea, note 12 above.
40
UNCLOS Article 39(1)(c)
41
UNCLOS Article 53(3)
37
38
11
and warships must not conduct military exercises or exercise any type of weapons with
ammunition”42 However, the maritime powers would view exercising as part of the
normal mode of warship transit.
Incidents have already occurred involving protests by Indonesia against certain activities
conducted by transiting warships of other countries. One issue arises from the
requirement for aircraft associated with the naval task force exercising the right of ASL
passage to remain within the designated sea lane and not to deviate more than 25 nautical
miles to either side of the axis line during passage. Thus, for example, an aircraft should
not “cross deck” from a ship in one sea lane to another ship in another sea lane if the
flight involved moving outside sea lanes.
These problems with determining limits on the flight operations that may be conducted
by ships on ASL passage led to an incident in July 2003, involving aircraft from the USS
Carl Vinson.43 Two Indonesian F-16Bs intercepted five F/A 18 Hornets from the Carl
Vinson in the Java Sea northwest of Bawean Island off the North coast of Bali. The
aircraft jammed each others’ electronics. Indonesia claimed the Hornets were in
Indonesian airspace. This was certainly the case, and it also seems likely that the aircraft
were beyond 25 nautical miles of the ASL axis line of the route of the Carl Vinson.
Exclusive Economic Zone
As established under UNCLOS, the EEZ is a zone of shared rights and responsibilities.
However, it has also become “a zone of tension between coastal State control and
maritime State use of the sea”.44 A coastal State has sovereign rights for the purpose of
exploiting, conserving and managing the living and non-living resources of the EEZ and
jurisdiction, as provided for in relevant provisions of UNCLOS, in relation to the
establishment of artificial islands, installations and structures; marine scientific research;
42
Indonesian Government Regulation No. 37/2002 Article 4(4).
“Indonesian F-16s Intercept US Hornets”, Angkasa online, 11 August 2003, http:///www.angkasaonline.com/13/11/english/english1.htm (accessed 4/9/2004).
44
George V. Galdorisi and Kevin R. Vienna, Beyond the Law of the Sea – New Directions for U.S. Oceans
Policy, Westport, Praeger, 1997, p.257.
43
12
and the protection and preservation of the marine environment.45 Other States also have
rights and duties in the EEZ related to freedoms of navigation and overflight and of the
laying of submarine cables and pipelines, and other internationally lawful uses of the sea
related to those freedoms.46 In exercising their rights and duties in an EEZ, coastal States
are required to have due regard to the rights and duties of other States47 and vice versa48.
The U.S. considers that the EEZ regime “does not permit the coastal State to limit
traditional non-resources related, high seas activities in this EEZ, such as task force
manoeuvring, flight operations, military exercises, telecommunications and space
activities, intelligence and surveillance activities marine data collection, and weapons’
testing and firing.”49 The U.S. insists on the freedom of military activities in the EEZ out
of concern that their naval and air access and mobility could be severely restricted by any
global trend towards “thickening jurisdiction” over the EEZ. The ability to conduct
military activities in the EEZ, including military surveying and intelligence collection, is
justified on the basis that they are part of the normal high seas freedoms of navigation
and overflight that are available in an EEZ under UNCLOS. However, some coastal
states, including Bangladesh, Malaysia, India and Pakistan, contend that other States
cannot carry out military exercises or manoeuvres in or over their EEZ without their
consent. The concern of these States is that uninvited military activities could threaten
their national security or undermine their resource sovereignty.
Research and Surveying
Different opinions exist as to whether coastal State jurisdiction extends to activities in the
EEZ such as hydrographic surveying and collection of other marine environmental data
that is not resource-related or is not done for scientific purposes.50 While UNCLOS
established a clear regime for marine scientific research, there is no specific provision in
45
UNCLOS Article 56(1)
UNCLOS Article 58(1)
47
UNCLOS Article 56(2)
48
UNCLOS Article 58(3)
49
Walter F. Doran, “An Operational Commander’s Perspective on the 1982 LOS Convention”, The
International Journal of Marine and Coastal Law, Vol.10, No.3, 1995, p.341.
50
For a more extensive discussion of these issues see Sam Bateman, “Hydrographic surveying in the EEZ:
differences and overlaps with marine scientific research”, Marine Policy, 29 (2005), pp. 163-174.
46
13
UNCLOS for hydrographic surveying. Some coastal States require consent with respect
to hydrographic surveys conducted in their EEZ by other States, while it is the opinion of
other States that hydrographic surveys can be conducted freely in the EEZ. The U.S.
regards military surveying as similar to hydrographic surveying and thus part of the high
seas freedoms of navigation and overflight and other international lawful uses of the sea
related to those freedoms, and conducted with due regard to the rights and duties of the
coastal State.51 Likewise intelligence collection by ships and aircraft in the EEZ is
regarded as being outside the jurisdiction of the coastal State.
The U.S. claims that while coastal State consent must be obtained in order to conduct
marine scientific research in its EEZ, the coastal State cannot regulate hydrographic
surveys or military surveys conducted beyond its territorial sea, nor can it require
notification of such activities.52 Similarly, the United Kingdom regards what it calls
military data gathering (MDG) as a fundamental high seas freedom available in the
EEZ.53 But other States, including China, have specifically claimed that hydrographic
surveys might only be conducted in their EEZs with their consent.54
In December 2002, China announced that it had enacted a new law explicitly requiring
Chinese approval of all survey and mapping activities in China’s EEZ and stating that
unapproved ocean-survey activity will be subject to fines and confiscation of equipment
and data.55 This law was a direct result of China’s concern over the U.S. “spy plane”
51
Council for Security Cooperation in the Asia Pacific (CSCAP), The Practice of the Law of the Sea in the
Asia Pacific, CSCAP Memorandum No.6, December 2002 (available on website at www.cscap.org),
footnote 3, p.3.
52
However, the U.S. does not assert the right of jurisdiction over marine scientific research within its EEZ
but recognizes the right of other countries to assert that right. This was because of the U.S. interest in
encouraging marine scientific research and avoiding any unnecessary burden. President’s Ocean Policy
Statement, 10 March 1983, as quoted in A.R. Thomas and James C. Duncan (eds), Annotated Supplement
to the Commander’s Handbook on the Law of Naval Operations, International Law Studies Vol. 73, Naval
War College, Newport, Rhode Island, 1999, p.44.
53
Email dated 21 Nov 2003 from Mr. Chris Carleton, Head, Law of the Sea Division, United Kingdom
Hydrographic Office.
54
Ship and Ocean Foundation (SOF) and East-West Center (EWC), The Regime of the Exclusive Economic
Zone: Issues and Responses, A Report of the Tokyo Meeting, 19-20 February 2003, Honolulu, East-West
Center, 2003, p.7.
55
Ibid., p.39.
14
incident off Hainan in 2001, and more recent incidents involving U.S. “military survey”
ships operating in China’s EEZ.
Military surveys are activities undertaken in the ocean and coastal waters involving
marine data collection (whether or not classified) for military purposes. The data
collected is not normally made available to the public. Such data is important, even
essential, for effective submarine operations, anti-submarine warfare (ASW), mine
warfare and mine countermeasures (MCM), particularly in waters such as the South and
East China Seas where oceanographic and underwater acoustic conditions vary widely
from one area to another with uneven bottom topography, fast tidal streams and a
relatively high level of marine life.
China took military action and lodged protests over the “hydrographic survey” operations
by the USNS Bowditch (AGS-21) in 2000 and again in 2002.56 According to a
spokesman for the Military Sealift Command, Far East, “USNS Bowditch was gathering
hydrographic acoustic performance data in international waters around the Yellow
Sea”.57 Similarly in March 2001, India lodged protests with the United States and the
United Kingdom over violations of its EEZ by military survey ships.58 The ships involved
were the Bowditch and HMS Scott. The Bowditch was detected in India’s EEZ off
Nicobar Island and was reportedly carrying out oceanographic surveying. 59 After having
been sighted in India’s EEZ in the Arabian Sea, the Scott indicated it was conducting
military surveys and declined to provide any further information. 60 While classified as a
hydrographic ship and manned by a naval crew, Scott is understood to be the Royal Naval
vessel that is frequently engaged in hydrographic and oceanographic surveys in support
of submarine operations.
Lieutenant Commander Mike Studeman, “Pacific faces Crisis in Intel Analysis”, USN Institute
Proceedings, January 2003, p. 66.
57
Mark Oliva, “Before EP-3, China turned away U.S. research ship in international waters”.
http://ww2.pstripes.osd.mil/01/may01/ed052001d.html (accessed 12/10/2003)
58
The ships involved were the USNS Bowditch and HMS Scott, SANDNet weekly Update, March 14, 2001
(http://www.nautilus.org/sand/Updates2001/V2N11.html) (accessed 12/10/2003)
59
Captain George V, Galdorisi, USN(ret) and Commander Alan G. Kaufman, JAGC, USN, “Military
Activities in the Exclusive Economic Zone: Preventing Uncertainty and Defusing Conflict”, Californian
Western International Law Journal, Vol. 32, 2002, p.294.
60
Ibid., pp.294-295.
56
15
International law is clear on most issues associated with the conduct of marine scientific
research and hydrographic surveying. These activities require the prior authorization of
the relevant coastal State in internal waters, the territorial sea (including by ships
exercising the right of transit passage) and archipelagic waters (including by ships
exercising the right of archipelagic sea lanes [ASL] passage). 61 All States have the
“freedom of scientific research” on the high seas subject to Parts VI and XIII of
UNCLOS dealing with the continental shelf and the international regime for marine
scientific research respectively. Hydrographic surveying is listed along with marine
scientific research as an activity under the jurisdiction of the coastal State in the territorial
sea,62 and as a prohibited activity during innocent63 and transit64 passage but there is no
reference to hydrographic surveying elsewhere in UNCLOS.
Part XIII of UNCLOS provides that coastal States have the exclusive right to regulate,
authorize and conduct marine scientific research in their EEZ and on their continental
shelf. It then establishes an implied consent regime65 that allows other States and
competent international organizations to proceed with a scientific research project in the
EEZ or on the continental shelf under certain circumstances even though the consent of
the coastal State may not have been forthcoming. In normal circumstances, the coastal
State shall grant its consent to research projects carried out for peaceful purposes in order
to increase scientific knowledge of the marine environment (sometimes characterised as
‘pure’ scientific research).66 The coastal State is to ensure that such consent will not be
delayed or denied unreasonably although there are several specific situations under which
the coastal State may withhold consent (including when such research is of direct
significance to the exploration and exploitation of natural resources, both living and nonliving).67
61
UNCLOS Articles 19(2)(j), 21(1)9g), 40, 54 and 245
UNCLOS Article 21(1)(g)
63
UNCLOS Article 19(2)(j)
64
UNCLOS Article 40
65
UNCLOS Articles 246-252
66
UNCLOS Article 246(3)
67
UNCLOS Article 246(5).
62
16
This consent regime for research in an EEZ is controversial and unevenly interpreted by
the international community. There has been some reluctance by researching States to
resort to implied consent and go ahead with their research without the formal approval of
the coastal State. On the other hand, some coastal States have failed to grant consent in
circumstances when it might reasonably have been expected68 or have applied extra
restrictions on marine scientific research in the EEZ beyond those required by the
UNCLOS regime.69
The increased focus of the U.S. Navy and other Western navies on littoral operations
suggests that disputes over rights and duties in the EEZ are going to become more
significant in the future. Virtually by definition, littoral operations must be in the EEZ of
one country or another. Successful operations in the littoral depend heavily on good
oceanographic and hydrographic knowledge of the coastal environment, particularly for
submarine operations, anti-submarine warfare (ASW), mine laying, Mine countermeasures (MCM) and amphibious operations. A coastal State might well argue that it
gains some security by restricting the availability of knowledge on its coastal
environment, including its EEZ.
Submarine numbers are growing in the region. Setting aside the decommissioning of large
numbers of Russian Pacific Fleet submarines, the number of submarines in East Asia has
increased from about 116 nine years ago to about 148 active at present with another 39 or so
vessels building or planned.70 The reasons for increased submarine numbers are not hard to
find. Defence budgets are growing quickly and submarines are a potent and attractive
weapon system. They can fire torpedoes, launch missiles, lay mines, detect other
submarines, land covert parties and conduct secretive surveillance and intelligence
operations. They are a classic force multiplier requiring a disproportionate response from an
adversary.
J. Ashley Roach, “Marine Scientific Research and the New Law of the Sea’, Ocean Development and
International Law, Vol. 27, 1996, pp. 59-72.
69
Galdorisi and Vienna, Beyond the Law of the Sea, p. 164.
70
Sam Bateman, ”More submarines, more incidents”, Asia-Pacific Defence Reporter, July/August 2004,
pp. 18-22.
68
17
The proliferation of submarines in the region is likely to lead to increased oceanographic
and ASW research. There is also a high risk of “intruder” submarine incidents in the future
as submarines increase in number and regional ASW capabilities improve. All this suggests
that in the future, regional countries will be paying even greater attention to what is
happening in their EEZ, and to their jurisdiction within that zone.
Issues with the EEZ and the responses of different countries have been the subject of a
series of meetings over the last two years co-sponsored by the Institute for Ocean Policy,
Ship and Ocean Foundation of Japan and the East-West Center in Honolulu. Meetings
have been held in Bali (June 2002), Tokyo (February 2003), Honolulu (December 2003)
and Shanghai (October 2004). These meetings have facilitated Track Two discussion of
the different interpretations of rights and duties in the EEZ that have emerged in the
region in recent years. The meeting organisers hope to derive a set of guidelines that will
be put forward for Track One consideration perhaps in the ASEAN Regional Forum
(ARF) or elsewhere.
Way Ahead
A common regional understanding of aspects of the law of the sea where uncertainty
exists, including coastal state rights in the EEZ and aspects of the straits transit passage
regime, would constitute an important maritime confidence and security building
measure (MCSBM) in East Asia.71 While differences on navigational issues do not
usually cause problems, they can become dangerous when tensions exist, and any
measures at all that would have the effect of limiting the scope for disputation would be
advantageous. A Korean scholar has observed that the need for “a commonly accepted
interpretation is more acute in this part of the world than in any other region, mainly
because the practice of the major aspects of ocean use diverges substantially among the
Sam Bateman, “Maritime Confidence and Security Building Measures in the Asian Pacific Region and
the Law of the Sea” in James Crawford and Donald R Rothwell (eds) The Law of the Sea in the Asian
Pacific Region, Dordrecht, Martinus Nijhoff, 1995, p. 233. The CSCAP Maritime Cooperation is now
developing a prospective CSCAP Memorandum on a common understanding of particular law of the sea
issues in the Asia Pacific
71
18
coastal states of the region”.72 In pursuance of a better regional understanding of the
issues discussed in this paper, the Maritime Security Cooperation Working Group of the
Council for Security Cooperation in the Asia-Pacific (CSCAP) has produced a
monograph on the practice of the law of the sea in the Asia-Pacific, which identifies areas
where differences exist and facilitates better understanding of the different positions of
States.73
The maritime geography of East Asia is complex and there is high and growing shipping
traffic in the region, particularly along the “steel highway” between Southeast and
Northeast Asia. The free flow of shipping is essential to the regional economy but law of
the sea disputes, including different interpretations of the rights and duties of a coastal
State in its adjacent waters, have the potential to disrupt that flow. Instead of looking at
the various regimes in a segmented way (e.g. transit passage and ASL passage), there
might be merit in taking a holistic view of the need to ensure a consistent approach to
navigation through the East Asian seas rather than one that depends on the vagaries of
individual coastal and archipelagic States. Certainly there would seem to be a need for
some consistency between the two large and adjacent archipelagic States, Indonesia and
the Philippines, but so far there has no attempt to pursue this association, even as a
minimum to link the ASL architecture of the two countries.
Conclusion
Since UNCLOS entered into force in 1994, it has become clear that navigational rights and
freedoms in the new law of the sea are not quite as clear as the drafters of the Convention
intended them to be. Despite the long history of the freedom of navigation and the efforts
made in UNCLOS to preserve traditional freedoms, coastal States, particularly in East Asia,
are introducing new regulations that restrict navigational rights and freedoms in their
adjacent waters.
Jin-Hyun Paik, “”Enhancing Maritime Security in Asia” in Dalchoong Kim and Jing-Hoon Lee (eds),
Comprehensive Security – Conceptions and Realities in Asia, Seoul, Yonsei University Press, 2000, p. 101.
73
CSCAP, The Practice of the Law of the Sea in the Asia-Pacific, CSCAP Memorandum No.6, December
2002 (available on website at www.cscap.org)
72
19
The basic clash of interests with the law of the sea is still that between coastal State
control, and the freedoms and rights sought by the maritime and user States. Despite the
framework for ameliorating these differences provided by UNCLOS, there is still an
inexorable march towards greater coastal State control. This is particularly the case in the
seas of East Asia.
These trends are unlikely to be reversed. There have been expectations that China, as it
grows in stature as a maritime power, could shift its position from that of a coastal State
to that of a maritime State seeking maximum freedoms under the law of the sea. In my
opinion, however, this is unlikely. China’s position on these law of the sea issues is well
entrenched. Rather than shifting its position, China is much more likely to continue with
its existing policies, or even to further strengthen them. Furthermore, there is emerging
common ground on law of the sea issues between China, Japan and India, as the three
major Asian powers on which the future security of the region so much depends. Japan’s
position in the past on these issues has been rather equivocal, but after recent incidents
with North Korean “spy ships” and Chinese submarines and oceanographic research
vessels in its adjacent waters, Japan appears to be coming down more firmly on the side
of coastal State “creeping jurisdiction”.
20