Part III - Resolving Conflicts Regarding Unattributed Rights and Jurisdiction in the Exclusive Economic Zone

Overall, the whole package deal of the legal order of the ocean as adopted in the United Nations Convention on the Law of the Sea (UNCLOS) is the result of a trade-off of negotiations and compromises.¹ The sui generis exclusive economic zone (EEZ) legal regime established at the margin between the two distinctive regimes – the territorial sea and the high seas – is an area of compendium rights and duties between the coastal State and other States.² As discussed in Part II, UNCLOS has covered the more obvious uses of the EEZ.³ However, not all potentially relevant rights and jurisdiction have yet been attributed, at least explicitly.

Part III discusses three subjects that UNCLOS has not stipulated specifically as pertaining to either the coastal State or other States, namely military activities, maritime security and underwater archaeological and historical objects. State practice and scholarly writings show different interpretations of whether these three subjects fall under the scope of unattributed rights and jurisdiction in the EEZ, particularly those relating to military activities. Following a strict reading of the provisions of UNCLOS, these three subjects are not automatically associated with either the sovereign rights or jurisdiction granted to the coastal States or the preserved communicational freedoms available to all States. Nevertheless, it is clear that some of the activities relating to these subjects are more clearly affiliated with a specific State than others, such as law enforcement activities over certain threats to maritime security in the EEZ.

By giving these three subjects the status as unattributed rights and jurisdiction in the EEZ, it leaves room for both the coastal State and other States to discuss their attribution based on the general principle applied to this sui generis legal regime: that is, to reserve the rights and jurisdiction over those activities that may affect economic interests to the coastal States while minimising the erosion of the communicational freedoms enjoyed by all States, and to preserve these freedoms for all States insofar as they are compatible with the EEZ. The exercise of these rights and jurisdiction will continue to be guided by the mutual obligation of due regard as explicitly required in both Articles 56(2) and 58(3) of UNCLOS, whereby no State may exercise their rights or freedoms in an absolute manner. The principle of equity and other circumstances as set out in Article 59 will be drawn on when a conflict arises between States on the attribution of rights and jurisdiction over these three subjects.

In the age of globalisation and interdependency, the former primary objective of winning command of the sea has gradually given way to the peaceful and secure use of the ocean by the international community. The implication is that instead of competing for exclusive jurisdiction, the coastal State and other States must recognise the need and right of each other to pursue their interests in the same marine area, and prepare to make compromises if the respective importance of the interests of the other party or the international community outweighs its own interest.

6 Military Activities

Among the rights that have not been explicitly attributed in the exclusive economic zone (EEZ), States disagree in particular on the law governing military activities. On the one hand, although some maritime powers view the United Nations Convention on the Law of the Sea (UNCLOS) as permitting navies to operate in a foreign EEZ essentially the same way as they operate on the high seas, some coastal States argue that different rules apply.¹ On the other hand, it is not clear as to what extent the coastal State can use its EEZ for military purposes, particularly when such use may affect the exercise of freedoms by other States. Moreover, States hold different views on what constitutes military activities. The conflicting interpretations and applications of UNCLOS and customary international law between coastal States and other military-user States have led to a stalemate where both groups believe that their actions are justified and lawful.²

This chapter examines the issue of whether or not the establishment of the 200 nautical miles (NM) EEZ affects the conduct of military activities, and if so, what international rules apply to such activities. Given the lack of clarity of jurisdiction, this analysis applies the two legal doctrines of the attribution and exercise of rights and duties in the EEZ. On the attribution issue, the conduct of military activities in the EEZ is considered an unattributed right such that jurisdiction is assessed on the particular activity within a given circumstance. In exercising such a residual right, the operating State must maintain a peaceful purpose and must have due regard to other States’ rights and duties in using the same maritime zone. This means that, when using the EEZ for military purposes, the coastal State must not impede the freedoms enjoyed by other States, while other States must not impair the sovereign rights and jurisdiction of the coastal State.

This chapter is divided into four sections. Section 6.1 reflects on the history of military uses of the sea, acknowledges the right of all States to conduct military activities on the high seas and identifies the general obligations for conducting peacetime military activities under international law. Section 6.2 discusses military security interests in the EEZ. Although security interests are not explicitly included in Part V of UNCLOS, they nonetheless exist, have been claimed and are protected by both the coastal State and other States from different perspectives. Section 6.3 examines conflicting opinions and practices with regard to the conduct of specific military activities in the EEZ as a means to protect military security interests. The attribution of rights to conduct these activities has provoked conflicts between the operating State and other States, mainly the coastal State. Neither side has any general priority in exercising co-existing rights, but each must act in good faith and give due regard to the other party. Section 6.4 reviews State practice relating to the regulation of military activities at sea and explores a mechanism to build trust and confidence to improve mutual understanding and avoid conflicts.

6.1 Military Uses of the Sea in Peacetime

6.1.1 Freedom of the Seas

The ocean has traditionally been divided into two legal regimes: territorial waters, where the coastal State has sovereignty, and the high seas, which is dominated by the principles of freedom and the exclusivity of flag State jurisdiction.³ The freedom of the high seas, as a rule of customary law as well as treaty law, is a cornerstone of the international law of the sea.⁴ Although its meaning and content have undergone change and refinement over time, the freedom of the high seas has traditionally included the freedom to conduct military activities in times of both peace and war, either defensive or offensive.⁵ In theory, subject to the principle of peaceful purposes, the high seas can be used by all ships and aircraft for activities that are not explicitly prohibited under customary or conventional international law.⁶

Broadly speaking, military uses of the sea embrace a wide and complex range of peacekeeping and wartime activities conducted not only on the water surface and in the column, on the seabed and subsoil but also in superjacent air space, by warships, support vessels, military aircraft and tactical and ballistic missile submarines.⁷ In addition, military uses of the sea include cyber operations conducted from or through cyber infrastructure located in seas, including infrastructure mounted on ships and submarines, aircraft above the seas, offshore installations and through submarine communication cables.⁸ The military uses of the sea serve a variety of purposes for governments.⁹ First, in order to protect a State’s interests at sea, warships and military aircraft commonly conduct manoeuvres at sea to maintain readiness of engagement, with or without weapons testing.¹⁰ Second, duly authorised government entities perform law enforcement duties with respect to activities occurring within their jurisdictional sea areas, over ships flying the same flag on the high seas, and over certain international crimes at sea.¹¹ Third, warships and military aircraft customarily conduct hydrographic surveys and other data-gathering activities through seabed devices or other onboard structures to improve navigational safety and to obtain strategic information about the targeted area.¹² Fourth, States routinely conduct intelligence collection activities or espionage, which may include the use of airborne and ship-based maritime surveillance systems and military devices, installations and structures on the seabed.¹³

Any maritime State, large or small, may use its sea power to secure legitimate uses of ocean space to provide national security, in terms of both self-defence and the capacity to deploy military force overseas for warfare and peaceful purposes.¹⁴ In fact, the use of military force to project power and influence over international relations has long been a traditional weapon in the diplomatic arena – the very term ‘gunboat diplomacy’ confirms the historic use of naval forces as a coercive element in achieving national goals.¹⁵ Therefore, States possessing strong maritime forces have always favoured more liberal legal regimes for the ocean. The United States, for example, has ‘traditionally maintained a strong Navy to preserve the freedom of the seas and to support the global commitments associated with its forward defense strategy’ with the aim to ensure political persuasion, reassure allies, deter political adversaries and influence regional events.¹⁶ These political imperatives have pushed maritime powers to seek the greatest freedom for military uses of the sea when developing the legal regimes of maritime zones.

The freedom to use ocean space for military purposes has never been without challenges and contradictions. The presence of a foreign navy in a nearby sea area is considered to pose a threat to the security and integrity of the coastal State and has provoked conflicts between the coastal State and the operating State.¹⁷ Restrictions on military activities in coastal areas were commonly used in times of crisis and international confrontation. For example, during the Falkland/Malvinas conflict in 1982, the United Kingdom declared a 200 NM maritime exclusion zone around the islands and then replaced it by a total exclusion zone that banned the entry of all Argentine warships, naval auxiliaries and aircraft.¹⁸

Within adjacent sea areas, the competition has always been between the coastal State’s intention to control all military activities for its exclusive use and the desire of other States to freely use the sea for their own or common interests.¹⁹ Over time, the freedom to use the sea for military purposes has been affected by the elongation of the extent of the territorial sea and the creation of various functional jurisdiction zones.

6.1.2 Codification of the Law of Military Uses of the Sea

The development of international law in the twentieth century has witnessed the growth of an international consensus in support of increasing restrictions on the use of force in international relations.²⁰ The broad prohibition on the threat or use of force in the Charter of the United Nations (UN Charter) represents an achievement of profound importance for the strengthening of international law.²¹ This development, although it goes beyond the scope of the codification of the law of the sea, influenced the discussion of military uses of ocean space at the three United Nations Conferences on the Law of the Sea.²²

The historical claims of a coastal State’s sovereign rights over the continental shelf was formalised in the 1958 Convention on the Continental Shelf, and refined in UNCLOS.²³ The law of the sea acknowledges the sovereign rights of coastal States over the continental shelf, including the outer continental shelf that extends beyond 200 NM from the baselines, for the exploration and exploitation of the seabed and its natural resources, while preserving the freedom to lay submarine cables and pipelines for all States.²⁴ The emplacement of military objects on or beneath the seabed floor and subsoil, one of the most important military uses of the sea, is not explicitly permitted or prohibited by these two conventions.²⁵

When the 1958 Convention on the Continental Shelf was being negotiated, India proposed that the continental shelf should not be used by any State for the purpose of building military bases or installations, but this was rejected by thirty-one votes to eighteen.²⁶ Although the final articles did not include an explicit permission, it was believed that, at least in 1958, the traditional high seas freedoms included the right to emplace military installations and devices on or in the seabed of the continental shelf.²⁷ The additional coastal States’ sovereign rights over the continental shelf, as intrusions on the high sea freedoms, are limited to ‘the purpose of exploring it and exploiting its natural resources’ without affecting the legal status of the superjacent waters or airspace above those waters.²⁸ The coastal State’s sovereign rights do not automatically apply to the military field, which remains to be governed by the high seas regime.²⁹ There are, however, limitations on the freedom to use the continental shelf for military purposes. As a traditional high seas freedom, States wishing to emplace weapons, installations and other military devices on the continental shelf are obliged to do so with reasonable regard to the interests of other States in the exercise of their freedom of the high seas.³⁰ Additionally, it can be argued that the use of the continental shelf for military purposes by a foreign State, similar to the laying or maintenance of submarine cables or pipelines, is subject to the coastal State’s right to ‘take reasonable measures for the exploration of the continental shelf and the exploitation of its natural resources’.³¹

The freedom to use the seabed for military purposes is further restricted by the 1971 Seabed Treaty, which came into force in 1972 and has ninety-four State parties.³² The 1971 Seabed Treaty recognises the common interest of humankind to promote the peaceful use of the seabed and the ocean floor, and contributes to the process of general and complete disarmament under strict and effective international control.³³ All State parties are obligated

not to implant or emplace on the seabed and the ocean floor and in the subsoil thereof beyond the [12-mile outer limit] any nuclear weapons or any other types of weapons of mass destruction as well as structures, launching installations or any other facilities specifically designed for storing, testing or using such weapons.³⁴

Nevertheless, the 1971 Seabed Treaty only concerns the prohibition on the use of nuclear weapons and other types of weapons of mass destruction, which were considered to have special verification procedures.³⁵ The freedom to use other, less destructive weapons or military devices on the seabed and ocean floor was not affected by the 1971 Seabed Treaty so long as their use did not interfere with international navigation or other legitimate uses of the ocean.

During the negotiation of the 1971 Seabed Treaty in 1970, the United Nations General Assembly (UNGA) adopted the Declaration of Principles Governing the Seabed and the Ocean Floor (Declaration of Principles).³⁶ The Declaration of Principles explicitly reserves the seabed and the ocean floor and subsoil thereof beyond the limits of national jurisdiction exclusively for peaceful purposes, ‘without prejudice to any measures which have been or may be agreed upon in the context of international negotiations undertaken in the field of disarmament and which have be applicable to a broader area’.³⁷ Although UNCLOS does not contain any provisions on disarmament or arms control in ocean space, the thrust of discussion at the Third United Nations Conference on the Law of the Sea (Third Conference) and the final provisions are premised upon the guidelines established by the Declaration of Principles and the 1971 Seabed Treaty.³⁸

Safeguarding free naval movement was one of the primary motivations of the major maritime powers in negotiating UNCLOS in light of the irreversible trend of extended coastal States’ claims.³⁹ Meanwhile, contrasting proposals were made by Malta and other States at an early stage to include coastal States’ security rights and jurisdiction in the EEZ.⁴⁰ Since it was not possible to reconcile this disagreement, military uses were left out from the formal debate and consequently not expressly addressed in UNCLOS.⁴¹

With the establishment of the EEZ, there is an important difference between the legal regimes of the areas within and beyond the 200 NM limit. As its name indicates, the primary purpose of establishing the EEZ is to maximise the economic benefits of the coastal State in the adjacent sea area. Consequently, the rights over natural resources, including fishing, jurisdiction to construct artificial islands for all purposes and installations or structures for economic purposes, and to conduct marine scientific research in the EEZ, have been drastically curtailed compared to those on the high seas, and are subject to the jurisdiction of the coastal State.⁴² However, the important high seas freedoms for communication have been explicitly preserved. All States enjoy the freedoms of ‘navigation and overflight and of the laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to these freedoms’.⁴³ There was no explicit reference to military activities in the current attribution of rights and freedoms in the EEZ, which veraciously fall under the realm of unattributed rights and duties based on the sui generis character of the EEZ.

On the one hand, the coastal State has sovereign rights and functional jurisdiction in the EEZ, as well as over the continental shelf. These are ‘sovereign rights’ exercised ‘for the purpose of exploring and exploiting, conserving and managing the natural resources’ and ‘jurisdiction’ in respect of certain other specified activities and purposes in conjunction with consequential duties.⁴⁴ Military uses, however, are not automatically included in these sovereign rights and jurisdiction. This is consistent with the drafting history of the provisions concerning the coastal State’s sovereign rights over the continental shelf.⁴⁵

On the other hand, States hold different views with regard to whether the freedom to conduct military activities in a foreign EEZ was automatically included in Article 58(1) during the negotiation of UNCLOS and after its adoption.⁴⁶ The original version of Article 58, which preserves the freedoms for all States in the EEZ, appeared in the 1975 text produced by the Evensen Group, and read as ‘the freedoms of navigation and overflight and of the laying of submarine cables and pipelines and other internationally lawful uses of the sea related to navigation and communication’.⁴⁷ The Castañeda-Vindenes Group replaced ‘navigation and communication’ with ‘these freedoms’ and added ‘such as those associated with the operation of ships, aircraft and submarine cables and pipelines, and compatible with the other provisions of [UNCLOS]’.⁴⁸ Subsequent attempts to limit the scope of the proposed high seas freedoms in the EEZ were not accepted.⁴⁹ The formula proposed by the Castañeda-Vindenes Group was adopted as part of the final text of Article 58(1). The change to ‘related to these freedoms’ considerably clarified and possibly expanded the freedoms preserved in the EEZ.⁵⁰ It has been argued that international law historically considers military activity a lawful use of the high seas associated with the operation of warships and military aircraft exercising the freedoms of navigation and overflight.⁵¹ Therefore, these changes served the intention of preserving the maritime State’s military uses rights in the EEZ and arguably included naval operations under ‘other internationally lawful uses of the sea’.⁵²

However, a number of States made declarations when signing UNCLOS to express their opinion on these controversial aspects of military uses of the sea. Brazil declared that ‘the provisions of the Convention do not authorise other States to carry out in the exclusive economic zone military exercises or manoeuvres, in particular those that imply the use of weapons or explosives, without the consent of the coastal State’.⁵³ Similar declarations and positions are maintained by Bangladesh, Cabo Verde, Ecuador, India, Malaysia, Pakistan, Thailand and Uruguay.⁵⁴ In contrast, other maritime States have expressly rejected such limitations on the traditional freedom of navigation.For example, Germany specifically stated:

[a]ccording to the Convention, the coastal State does not enjoy residual rights in the exclusive economic zone. In particular, the rights and jurisdiction of the coastal State in such zone do not include the rights to obtain notification of military exercises or manoeuvres or to authorize them.⁵⁵

Italy, the Netherlands and the United Kingdom made similar statements.⁵⁶

The question of military uses of the sea touches on political sensitivities and balance of power paradigms that were deliberately avoided during the negotiations at the three UN Conferences on the Law of the Sea. As a result, there is no provision in UNCLOS that clearly states whether the EEZ can be used for military purposes by either the coastal State or other States. The negotiation history and subsequent State practice fail to reveal a unified interpretation of relevant provisions in Part V. Regardless of the attribution of the right to use the EEZ for military purposes, there are certain rules to follow when conducting military activities therein. The general requirement is that the EEZ is reserved for peaceful purposes only, and all States must refrain from any threat or use of force inconsistent with general international law.⁵⁷ In addition, States must have due regard to each other when exercising their legitimate rights and performing their duties.⁵⁸

6.1.3 Obligations in Conducting Peacetime Military Activities

6.1.3.1 The Reservation for Peaceful Purposes/Uses

The concept of peaceful purposes was introduced into the law of the sea by the Declaration of Principles, and repeatedly has been referred to as ‘peaceful uses’ or ‘peaceful purposes’ in the Preamble and various provisions of UNCLOS.⁵⁹ Among these, three provisions are relevant to the EEZ. Article 88 provides that the high seas and, through cross-reference by Article 58(2), the EEZ ‘shall be reserved for peaceful purposes’. Article 240(3) requires that the coastal State give consent for marine scientific research projects in its EEZ that will be conducted by other States ‘exclusively for peaceful purposes’. Finally, Article 301 on ‘peaceful uses of the sea’ is applicable to all aspects of the rights and duties of State parties in the maritime context.

A general debate on the ‘peaceful uses of ocean space: zones of peace and security’ took place at the fourth session of the Third Conference in 1976, which centred on whether military activities in the ocean were permitted.⁶⁰ Many States, including Peru, Ecuador and Madagascar, interpreted ‘peaceful purposes’ as prohibiting all military activities; other States, the United States among them, interpreted it as prohibiting all military activities for aggressive purposes only, but not for the use of military means of communication; a third group argued that the test of whether an activity is ‘peaceful’ depends on whether it is consistent with the UN Charter and other rules of international law.⁶¹ The formulation adopted in UNCLOS Article 301 echoes the view of the third group:

In exercising their rights and performing their duties under this Convention, States Parties shall refrain from any threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the principles of international law embodied in the Charter of the United Nations.

Thus, military activities that are consistent with the principles of international law embodied in the UN Charter, in particular with Article 2(4) and Article 51, are not prima facie prohibited by UNCLOS.⁶²

This interpretation of Article 301 is supported by the fact that numerous provisions of UNCLOS either acknowledge legitimate military activities or enumerate non-acceptable ones.⁶³ Warships and governmental non-commercial ships are not only recognised but are also granted complete immunity from the jurisdiction of any State other than their flag State.⁶⁴ This indicates that, in UNCLOS at least, the use of warships or military aircraft does not equate to non-peaceful purposes.⁶⁵ Moreover, the prohibition of certain military activities that are incompatible with innocent passage within the territorial sea implies that these activities may be permissible in other parts of the sea if not explicitly prohibited.⁶⁶ Furthermore, the optional exclusion of military activities from compulsory judicial settlement is another example indicating the existence, if not the recognition, of military uses of the sea.⁶⁷

Therefore, the requirement of ‘peaceful purposes/uses’ means that the use of ocean space or the purpose of activities conducted therein or thereabove must not involve a threat or use of force against the territorial integrity or political independence of a State, or in any manner inconsistent with the principles of international law embodied in the UN Charter. ‘Peaceful purposes/uses’ per se does not exclusively curb military activities on the high seas or in the EEZ. Therefore, military activities at sea are not prima facie prohibited by UNCLOS. The question thus hinges on what constitutes a ‘threat or use of force’ as codified in Article 301.

6.1.3.2 The Prohibition on the Threat or Use of Force

The phrase ‘threat or use of force’ in UNCLOS Article 301 is drawn from Article 2(4) of the UN Charter to provide an answer to the question of what criteria are required to qualify as ‘peaceful purpose/uses’. Article 2(4) provides that ‘[a]ll Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purpose of the United Nations’. Although not identical, UNCLOS Article 301 echoes the obligation laid down in Article 2(4) of the UN Charter. The replacement of ‘the’ by ‘any’ in front of the phrase ‘threat or use of force’ and the expression of ‘the principles of international law embodied in the [Charter]’ instead of ‘the purposes of the United Nations’ arguably broadens the scope of the ‘threat or use of force’ covered by Article 301.⁶⁸ It would cover all the principles of international law that are embodied in the UN Charter and not simply be limited to the four purposes of the UN identified in the UN Charter.⁶⁹ Subsequent UN resolutions and juridical decisions have contributed to clarifying the legal meaning of the phrase ‘threat or use of force’, although States remain divided on the interpretation of the vital subject of the phrase, and the application of the law varies depending on the facts of the episode itself.⁷⁰

The term ‘use of force’ is relatively clear in referring to armed force used directly or indirectly by a State against another State that excludes ‘political or economic coercion’.⁷¹ Foremost, it prohibits ‘the most serious and dangerous form of the illegal uses of force’ – aggression – ‘being fraught, in the conditions created by the existence of all types of weapons of mass destruction, with the possible threat of world conflict and all its catastrophic consequences’.⁷² Any invasion, attack or other action by the armed forces of a State against the sovereignty, territorial integrity or political independence of another State constitutes prima facie evidence of an act of aggression and falls under the prohibition of the use of force.⁷³ Moreover, as the International Court of Justice (ICJ) stated in the advisory opinion on the Legality of the Threat or Use of Nuclear Weapons, ‘if the envisaged use of force is itself unlawful, the stated readiness to use it would be a threat prohibited under Article 2, paragraph 4’.⁷⁴ Furthermore, the focus is the verb ‘use’ to define the occurrence of the action without a requirement of consequences or the period of how long the force was used.

The term ‘threat of force’ in the context of armed force is disputed, especially when State practice shows a certain tolerance of it.⁷⁵ It has been interpreted that any such ‘threat’ must be closely tied to what the target State perceives as the ‘readiness’ of another State to use armed force, which is ‘a state of extreme aggravation of contradictions, an immediate pre-conflict state’ for an attempt to compel the targeted State to take or not to take certain actions.⁷⁶ In 1994, when ‘Iraqi artillery and tanks were deployed in positions pointing towards and within range of Kuwait, with ammunition at the ready’ on the Iraqi side of the border, this situation was argued at the UN Security Council debate to be a ‘threat to Kuwait and a breach of the provisions of the Charter’.⁷⁷

The meaning of the phrase ‘territorial integrity or political independence’ is also unclear.⁷⁸ The preparatory work for the UN Charter and the ICJ jurisprudence have demonstrated that this phrase was not intended to have a restrictive effect as ‘respect for territorial sovereignty is an essential foundation of international relations’, and international law requires political integrity to be respected.⁷⁹ Some States have used the right of ‘humanitarian intervention’ as a justification to allow the threat or use of force against another State to establish democracy or another preferred political system.⁸⁰ However, such practice is limited in number and support, thus it neither presages nor constitutes a change in the customary law that prohibits intervention.⁸¹ Meanwhile, many States insist that any form of use of armed force, whatever the purpose or duration, violates the prohibition on all use of force against another State.⁸² If there is ambiguity on the interpretation and application of the phrase, the principle of effectiveness should be applied.⁸³ Arguably, it is the targeted State that has the right to claim that it is under such threat.

The alternative qualifier is when the threat or use of force is in any other manner inconsistent with the principles of international law embodied in the UN Charter. The language of Article 301 therefore covers all the principles of international law that are embodied in the Charter. This broad coverage was a compromise between two ideologically diverse groups at the Third Conference, where one side aimed for complete demilitarisation of the sea whereas the other side wanted to have limited application of the prohibition of the use of force.⁸⁴ Among those principles brought in by UNCLOS Article 301, the inherent right of self-defence, as set out in Article 51 of the Charter, ‘is unimpaired and may require adaptation to the new concepts introduced by the Convention’.⁸⁵

In Guyana/Suriname, the arbitral tribunal was of the view that the order given by the Surinamese official by radio to the Guyanese rig ‘constituted an explicit threat that force might be used if the order was not complied with’, based primarily on the testimony of witnesses to the incident that they were convinced of ‘unspecified consequences’.⁸⁶ The tribunal accepted that ‘force may be used in law enforcement activities provided that such force is unavoidable, reasonable and necessary’, but concluded that Suriname’s action ‘seemed more akin to a threat of military action rather than a mere law enforcement activity’.⁸⁷ Since it is ‘illegal for a State to threaten force to secure territory from another State, or to cause it to follow or not follow certain political or economic paths’, the Surinamese threat of the use of force to expel the Guyanese rig from the disputed area breached Article 2(4) of the UN Charter and general international law.⁸⁸

The decision of the arbitral tribunal was criticised for setting a low threshold for determining whether a specific act constitutes the threat of force in violation of Article 2(4).⁸⁹ The order was given by a Surinamese navy vessel to a Guyanese private rig and drill ship operated by CGX, Guyana’s licensee for commercial activities, within an area that was approximately 50 NM from the baseline.⁹⁰ Therefore, such an action cannot be considered as a threat of force directly against the ‘political independence’ of Guyana, the sovereign State. In addition, this incident took place in the disputed area of the continental shelf, where neither Suriname nor Guyana has territorial rights.⁹¹ Hence, the threat given by the Surinamese navy was not against the ‘territorial integrity’ of Guyana. An alternative argument could be that the Surinamese navy’s threat of unspecified consequences was a threat ‘inconsistent with the purposes of the United Nations’, which include the settlement of dispute by peaceful means and therefore violated Article 2(4).⁹² Contrary to the tribunal’s assessment, such a threat should be categorised as a law enforcement activity that violated the safeguards laid down in UNCLOS and general international law whereby ‘the use of force must be avoided as far as possible and, where force is unavoidable, it must not go beyond what is reasonable and necessary in the circumstances’.⁹³

Directly incorporating the obligation under the UN Charter has the effect of emphasising its implementation in the context of the law of the sea. Particularly in view of Article 103 of the UN Charter, obligations under the Charter have the highest priority in the event of a conflict between the obligations of different international agreements.⁹⁴ UNCLOS Article 301 has not introduced any additional obligations beyond Article 2(4) whereby the prohibition of the threat or use of force is limited in international relations.⁹⁵ The ‘threat or use of force’ prohibited in Article 2(4) must be applied restrictively and distinctively from activities that constitute ‘breach of peace’, ‘armed attack’ or mere ‘law enforcement’.⁹⁶ Military activities that do not involve the threat or use of force against the territorial integrity or political independence of another State, or violate the principles of international law recognised in the UN Charter, are not prohibited under Article 301.⁹⁷

6.1.3.3 Obligation of Due Regard

Another limitation on using ocean space for military purposes is that the operating State must have due regard for the interests of other States in exercising their rights and obligations.⁹⁸ More broadly, in fulfilling their reciprocal due regard obligation, States must act in good faith and exercise their rights, jurisdiction and freedoms ‘in a manner which would not constitute an abuse of right’.⁹⁹

The drafting history of the provisions of the EEZ show that early proposals first established the new sovereign rights and jurisdiction of coastal States as intrusions to the high seas freedoms and then made efforts to preserve certain freedoms for all States.¹⁰⁰ As discussed in Chapter 3, the inclusion of a mutual due regard obligation emphasises that both parties’ rights and freedoms are not absolute, but must be exercised in a reasonable and fair way so as not to infringe another State’s freedoms or rights.¹⁰¹ The reciprocal duties of due regard contain both substantive and procedural aspects concerning the actions of both sides.¹⁰² In respect to conducting military activities in the EEZ, the operating State must recognise, consider and balance the legitimate rights and obligations of other States, and act in good faith to consult and negotiate in the event of a conflict.¹⁰³

The reciprocal due regard obligation reflects the basic principle of establishing and maintaining an appropriate balance of rights and freedoms between the coastal State and other States in the EEZ. However, there are no agreed specific criteria for States to measure whether their conduct of military activities has fulfilled the due regard obligation. The question of whether an activity is conducted in accordance with the due regard obligation therefore must be decided on a case-by-case basis by the States involved. In some cases, other relevant provisions will assist with the interpretation of the connotation of the due regard obligation. For example, the coastal State may not establish military artificial islands, installations and structures ‘where interference may be caused to the use of recognised sea lanes essential to international navigation’.¹⁰⁴ Also, one can confidently say that activities of any kind that could cause significant damage to the natural resources being exploited by the coastal State or deny access to the area of such exploitation would be contrary to the due regard obligation.¹⁰⁵

Moreover, it has been argued that the reciprocal obligations of due regard flow also ‘from the States Parties’ obligation to protect and preserve the marine environment, a fundamental principle underlined in Articles 192 and 193 of the Convention’.¹⁰⁶ Although a military entity is exempted from the environmental provisions of UNCLOS, the operating State must adopt appropriate measures, on the basis of not impairing operations or operational capabilities of such entities, to ensure that they act in a manner consistent, so far as is reasonable and practicable, with the environmental provisions.¹⁰⁷ In particular, the operating State has the responsibility to ensure that activities within its jurisdiction or control, including military activities, do not cause damage to the environment of other States.¹⁰⁸

In conclusion, even on the high seas, the freedom to conduct military activities is neither absolute nor static, but is a balanced right that subjects States to the duty of having due regard for the interests of other States and for peaceful purposes.¹⁰⁹ Moreover, States may conclude bilateral or multilateral agreements to regulate conflicting uses of the sea.¹¹⁰ Additional restrictions on the freedom to use ocean spaces for military purposes are predictable according to the legal regime of the specific sea area where such activities take place. States have been conducting military activities for various purposes within their own EEZ and in another State’s EEZ, but the extent to which rights and duties are modified or affected remains a controversial matter.

6.2 Military Security in the Exclusive Economic Zone

UNCLOS has established the EEZ as a sui generis zone that is neither subject to coastal State sovereignty nor possessing high seas status.¹¹¹ UNCLOS grants the economic interests exclusively to the coastal State and reserves communication freedoms to all States. Military security interests, in general, are not explicitly attributed to either the coastal State or other States.¹¹² Nonetheless, a diverse group of States have asserted security claims beyond the limit of the territorial sea to varying degrees. Essentially, this phenomenon reflects the fact that maritime space is commonly linked with the concept of global security, which inevitably affects territorial interests.¹¹³

6.2.1 National Security Interests at Sea

Freedom of the seas, especially the free movement of military forces, has come to be regarded as essential for maintaining and advancing the national security interests of States.¹¹⁴ However, national security interests alone are not a solid foundation for seeking to qualify the freedom to use the sea under the jurisdiction of another State for military purposes, as security interests are adjusted according to the changing international environment and are often confronted by the extension of national jurisdiction by the coastal State for security purposes.¹¹⁵ The scope and meaning accorded to the notion of national security at sea – however different according to the coastal State or other States – influence which interests need to be protected and which activities need to be regulated.

States, coastal or landlocked, large or small, use ocean space for a great variety of purposes under many different circumstances.¹¹⁶ The ocean is not only the place for natural resource development but also the centre of sea lanes communication and other human activities, including military activities.¹¹⁷ Ensuring the use of the ocean for military training and planning, manoeuvres, weapons testing or other military operations is essential for maintaining and enhancing the capability of States to protect their security interests at sea.¹¹⁸ Consequently, the adjacent sea areas are of crucial importance to promoting States’ strategic and military interests. For these purposes, States are advancing claims not only to the use of ocean space under their jurisdiction but also to securing effective and efficient access to the ocean space of others, as well as to sharing in the benefits of using the high seas.¹¹⁹

On the one hand, coastal States have concerns in relation to national security interests and the protection of natural resources and the marine environment in the adjacent sea areas and tend to extend their control as far as possible to prevent threats coming from the sea.¹²⁰ This includes placing limitations on foreign military activities in the EEZ.¹²¹ The development of new military technologies has enabled the proliferation of a number of small and medium-sized navies to control their immediate maritime domains, which contributes to an overall trend in which more States are in favour of limiting the freedom of use of the seas.¹²² China, for example, has on various occasions protested and challenged foreign military activities, especially reconnaissance conducted within its EEZ, and asserted that such activities endangered China’s national security interests.¹²³

On the other hand, some States, notably powerful maritime States such as the United States, continue to consider maximising mobility in ocean space to be a fundamental national interest.¹²⁴ These States argue that ensuring a naval power retains the authority for unimpeded access to the global commons will help to prevent the emergence of security threats on and above the ocean, especially in regions where coastal States have insufficient maritime capacity to maintain order without external assistance.¹²⁵ This authority is known as ‘expeditionary sea power’, a military operation ‘to accomplish a specific objective on the periphery or in a foreign country’, which relies on the rapid deployment of naval forces.¹²⁶ This concern reflects the situation in the Horn of Africa, where international authorities have been brought in to assist the coastal States, primarily Somalia, in gathering military forces for preventing and combatting piracy and international terrorists and for providing security and order at sea.¹²⁷

A somewhat mixed set of policies towards security interests at sea shows that most States pursue policies that enhance their national security while simultaneously fighting to limit the strategic capabilities of their opponents. However, no State can, or should, simply assert control in its own maritime neighbourhood by restraining a foreign presence while seeking unlimited and unimpeded access to areas under the jurisdiction of another State. In addition, the race for control may lead to a situation where States are suspicious of each other’s intention in asserting power, and in return seek to accumulate increased power, but not necessarily feel more secure.¹²⁸ Unless there is a self-sustaining process built on mutual understanding, this situation will become a vicious cycle that may provoke unnecessary conflicts, especially in times of political intensity.

It is inevitable that States want to pursue their national security interests at sea, but their approaches to achieving security vary significantly since they have different perspectives on what constitutes their prioritised interests at a given time. Although contributing to ‘the strengthening of peace, security, co-operation and friendly relations among all nations’ is a goal of the codification and progressive development of the law of the sea, security interests have never been clearly recognised in the EEZ under UNCLOS.¹²⁹ However, the recognition of coastal States’ sovereign rights in the EEZ has given them a broader capacity to regulate activities taking place within adjacent sea areas and to prevent threats to their economic interests. It is often in this respect that some coastal States use creative interpretations of their granted rights to incorporate security interests in their EEZ.

6.2.2 Security Claims over the Exclusive Economic Zone

Within the territorial sea, foreign vessels must not act in a manner ‘prejudicial to the peace, good order or security of the coastal State’, but such language was not included in the provisions concerning either the contiguous zone or the EEZ.¹³⁰ The desire to protect sovereignty and national interests has driven some States to become more creative and expansive in their definition and interpretation of national security interests, most frequently beyond the limit of their territorial seas.¹³¹ State practice reveals three main approaches: claiming security interests in the contiguous zone; claiming jurisdiction over military surveys or the use of military structures or installations in the EEZ; and requiring consent for the conduct of military activities in the EEZ, especially military manoeuvres involving the use of weapons or explosives (Table 6.1).

Table 6.1 Security claims over the EEZ

State	Claims
Bangladesh	Consent required for military exercises or manoeuvres, especially with weapons or explosives, in the EEZ or on the continental shelfa
Brazil	Consent required for military exercises and manoeuvres, in particular those involving the use of weapons or explosives; claims exclusive rights to the establishment, operation and use of all types of artificial islands, installations and structures in the EEZ without exception, whatever their nature or purposeb
Myanmar	Claims security interest in the contiguous zone; claims jurisdiction to establish a security area for offshore infrastructure in the EEZc
Cabo Verde	Claims exclusive jurisdiction to any other rights not recognised by third States in the EEZ; claims jurisdiction over all installations and structures of any other nature; prohibits military exercises ‘with weapons’d
Cambodia	Claims security interests in the contiguous zone and control of all foreign activities on the continental shelf irrespective of purposee
China	Enforces security laws in the contiguous zone; requires authorisation for the laying of submarine cables and pipelines on the continental shelf; consent required to conduct any surveying and mapping activities in the EEZf
DPR of Korea	Prohibits any foreign person, vessel or aircraft from installing facilities, taking photographs, investigating or surveying in the EEZg
Ecuador	Claims exclusive right to all types of artificial islands, installations and structures within the 200 NM of its maritime territory; exercises all residual rights and jurisdiction; requires prior notification and authorisation for the entry of any warships, naval auxiliaries or other vessels or aircraft, or ships powered by nuclear energy; requires consent for any military exercises or manoeuvres of any typeh
Egypt	Claims security jurisdiction to a further 6 NM zone beyond and contiguous to the territorial sea; regulates all matters relating to its EEZi
El Salvador	Claims sovereignty and jurisdiction over the sea and its bed and subsoil to a distance of 200 NMj (In the El Salvador v. Honduras case, the ICJ judgment refers to the territorial sea, continental shelf and exclusive economic zone of El Salvadork)
Guyana	Claims exclusive rights and jurisdiction over artificial islands, offshore terminals, installations and other structures and devices for all purposesl
India	Claims security jurisdiction out to 24 NM; requires consent for military exercises or manoeuvers, especially those involving the use of weapons or explosives;m claims right to verify, inspect, remove or destroy any weapon, device, structure, installation or facility which might be implanted or emplaced on or beneath its continental shelf by any other countryn
Indonesia	Broadly defines marine scientific research; claims jurisdiction over any artificial islands or installations or other structures within the EEZo
Iran	Claims jurisdiction over other installations and structures, the laying of submarine cables and pipelines, and any kid of research; prohibits foreign military activities and practices, collection of information in the EEZp
Kenya	Claims jurisdiction over military surveillance installations and any structures; claims the right to regulate passage of warships and the conduct of any military manoeuvres in the EEZq
Libya	Claimed the Gulf of Sidra (Surt) as Libyan internal waters with a closing line measuring approximately 300 NMr
Malaysia	Requires consent to conduct military exercises or manoeuvres, particularly those involving the use of weapons or explosives, in the EEZs
Maldives	Purports to grant ships of all States innocent passage in the EEZ and requires all foreign vessels to attain prior authorisation before entering the EEZt
Mauritius	Applies domestic laws to artificial islands, installations and structures in the EEZ and on the continental shelf as if they were in the territorial sea; claims jurisdiction over the laying of submarine cables and pipelinesu
Mexico	Claims the right to verify, inspect, remove, or destroy any military weapon, structure, installation, device or equipment placed on its continental shelfv
Nicaragua	Claims over all survey activitiesw
Pakistan	Consent required for military exercises and manoeuvres in the EEZx
Peru	Claims sovereignty and jurisdiction up to a distance of 200 NM ‘maritime domain’y
Saudi Arabia	Claims security interests in the contiguous zone; applies security laws over artificial islands, installations and structures in the EEZz
Sudan	Claims security interests to a further distance of 6 NM beyond the territorial seaaa
Syria	Claims security interests in the contiguous zone; requires a permit for the laying of submarine cables and pipelinesbb
Thailand	Requires consent for military exercises in the EEZcc
Uruguay	Claims exclusive jurisdiction over all artificial islands, installations and structures in the EEZ; requires authorisation for foreign military exercises and any other military activity in the EEZdd
Viet Nam	Prohibits any acts against the sovereignty, defence and security of Vietnam in the EEZee
Yemen	Claims security interests in the contiguous zoneff

^a UNCLOS, Declarations and Statements, Bangladesh, Declaration made upon Ratification (27 July 2001), para 1

^b Brazil, Law No. 8617 of 4 January 1993, on the Territorial Sea, the Contiguous Zone, the Exclusive Economic Zone and the Continental Shelf, (1993) 23 LOSB 19, Articles 8–9; UNCLOS, Declarations and Statements, Brazil, Declaration made upon Signature (10 December 1982), para IV; Upon Ratification (22 December 1988), para II

^c Myanmar, Territorial Sea and Maritime Zones Law, 17 July 2017, Articles 18(a), 20(b) www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/Myanmar_MZL_2017.pdf

^d Cabo Verde, Law No. 60/IV/92 Delimiting the Maritime Areas of the Republic of Cape Verde and Revoking Decree-Law No. 126/77 and all Legal Provisions which contravene this Law, (1994) 26 LOSB 26, Article 13(b)(iv); UNCLOS, Declarations and Statements, Cabo Verde, Declaration made upon Signature (10 December 1982) and confirmed upon Ratification (19 August 1987), paras IV–VI

^e People’s Republic of Kampuchea, Decree of the Council of State of 13 July 1982, Articles 4, 6, www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/KHM_1982_Decree.pdf

^f China, Exclusive Economic Zone and Continental Shelf Act (26 June 1998), Article 11, www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/chn_1998_eez_act.pdf; China, Surveying and Mapping Law of the People’s Republic of China, 1 December 2002, Article 7 www.asianlii.org/cn/legis/cen/laws/samlotproc506/

^g Decree by the Central People’s Committee Establishing the Economic Zone of the People’s Democratic Republic of Korea, 21 June 1977 www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/PRK_1977_Decree.pdf

^h UNCLOS, Declarations and Statements, Ecuador, Declaration made upon Ratification (24 September 2012), paras IV(3), X–XI, XVIII

ⁱ Decree concerning the Territorial Waters of the Arab Republic of Egypt of 15 January 1951, as amended by Presidential Decree of 17 February 1958, Article 9 www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/EGY_1958_Decree.pdf; UNCLOS, Declarations and Statements, Egypt, Declarations upon Ratification (26 August 1983).

^j El Salvador, Constitution of 13 December 1983, Article 84 www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/SLV_1983_Constitution.pdf

^k Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), Judgment, ICJ Reports 1992, p. 351, General List No. 75.

^l Guyana, Maritime Boundaries Act, 1977, Act No. 10 of 30 June 1977, Article 16 www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/GUY_1977_Act.pdf

^m India, The Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Acts, 1976, Act No. 80 of 28 May 1976, Articles 5(4)(a), 7(5) www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/IND_1976_Act.pdf; UNCLOS, Declarations and Statements, India, Declaration made upon Ratification (29 June 1995), para (b)

ⁿ 1971 Seabed Treaty, Declaration by India, https://2009-2017.state.gov/documents/organization/74105.pdf (archived content)

^o Indonesia, Act No. 5 of 1983 on the Indonesia Exclusive Economic Zone (18 October 1983), (1986) 7 LOSB 26, 28, Articles 1(c), 6

^p Iran, Act on the Marine Areas of the Islamic Republic of Iran in the Persian Gulf and the Oman Sea, (1993) 24 LOSB 12, 14, Articles 14, 16

^q Kenya, Chapter 371 – The Maritime Zones Act 1989, Articles 1(2), 9(1)(e) www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/KEN_1989_Maritime.pdf

^r Libya, Information Concerning the Jurisdiction of the Gulf of Surt, www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/LBY_1973_Information.pdf

^s UNCLOS, Declarations and Statements, Malaysia, Declaration made upon Ratification (14 October 1996), para 3

^t Maldives, Law No. 32/76 of 5 December 1976 relating to the Navigation and Passage by Foreign Ships and Aircrafts through the Airspace, Territorial Waters and the Economic Zone of the Republic of Maldives, Article 1; Maritime Zones of Maldives Act No. 6/96, Article 14 www.un.org/Depts/los/LEGISLATIONANDTREATIES/STATEFILES/MDV.htm

^u Maiuritius, Maritime Zones Act 2005 (Act No. 2 of 2005), (2006) 62 LOSB 56–57, Articles 16(2), 17(b), 20(2)

^v 1971 Seabed Treaty, Declaration by Mexico, https://2009-2017.state.gov/documents/organization/74105.pdf (archived content)

^w J Ashley Roach, Excessive Maritime Claims (4th ed, Brill 2021) 459

^x UNCLOS, Declarations and Statements, Pakistan, Declaration made upon Ratification (26 February 1997), para (iii)

^y Peru, Peruvian Maritime Dominion Baselines Law, (2007) 64 LOSB 15, Article 1; Maritime Dispute (Peru v. Chile), Judgment, ICJ Reports 2014, p. 3, para 178; ‘Peru’s Agent formally declared on behalf of his Government that “[t]he term ‘maritime domain’ used in [Peru’s] Constitution is applied in a manner consistent with the maritime zones set out in the 1982 Convention”’

^z Saudi Arabia, Translation of Royal Decree No. 6 dated 18/1/1433H, Statute of Maritime Delimitation of the Kingdom of Saudi Arabia (13 December 2011), Articles 11(2), 13(2)(c) www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/SAU_2011_Decree.pdf

^aa Sudan, Territorial Waters and Continental Shelf Act, 1970, Article 9 www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/SDN_1970_Act.pdf

^bb Syria, Law No. 28 of 19 November 2003, (2004) 55 LOSB 16–17, Articles 20, 24(2)

^cc UNCLOS, Declarations and Statements, Thailand, Declaration made upon Ratification (15 May 2011), para I(4)

^dd Uruguay, Act No.17.033 of 20 November 1998 Establishing the Boundaries of the Territorial Sea, the Adjacent Zone, the Exclusive Economic Zone, and the Continental Shelf, Articles 6(A), 8 www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/URY_1998_Act.pdf; UNCLOS, Declarations and Statements, Uruguay, Declaration made upon Signature (10 December 1982), para (D)

^ee Viet Nam, The Law on Vietnamese Sea, Law No. 18/2012/QH13, 21 June 2012, Article 37(1) https://lawnet.vn/en/vb/Law-No-18-2012-QH13-on-Vietnamese-sea-23278.html

^ff Yemen, Act No. 45 of 17 December 1977 Concerning the Territorial Sea, Exclusive Economic Zone, Continental Shelf and Other Marine Areas, Article 12 www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/YEM_1977_Act.pdf

It is notable that some States have retreated from their security claims in the EEZ in association with broader territorial sea claims. Chile, for example, was the first Latin American State to proclaim a 200 NM sovereign maritime zone in 1947, but brought its claims in line with UNCLOS in 1986.¹³² Nicaragua, which once claimed sovereignty and jurisdiction over the adjacent sea to 200 NM that was only open to the innocent passage of foreign merchant vessels, has since adjusted its claims in accordance with UNCLOS.¹³³ The same practice is observed by Liberia and Somalia, which rolled back from a claim of 200 NM territorial sea and established maritime zones according to UNCLOS.¹³⁴

No fewer than thirty coastal States have explicitly sought to apply restrictions to the movement or operations of foreign warships, military aircraft or military devices in the EEZ for the purpose of safeguarding their security interests. These claims have been alleged as being inconsistent with UNCLOS and have been challenged and protested by other States, most notably the United States.¹³⁵ In addition, eleven States made objecting declarations for those coastal States that prohibited foreign military activities in the EEZ without permission. These include Belgium, Finland, Germany, Ireland, Italy, Latvia, the Netherlands, Italy, Sweden, the United Kingdom and the United States, with some arguing that the coastal State’s rights and jurisdiction in the EEZ ‘do not include the rights to obtain notification of military exercises or manoeuvres or to authorize them’.¹³⁶

6.2.3 Protection of Security Interests as a Residual Right in the Exclusive Economic Zone

It is clear that security interests exist in maritime areas and a number of States have claimed security interests in the EEZ without specifying the legal basis for their claims. As discussed earlier, there are different approaches to protecting a State’s security interests in the EEZ. While several coastal States have adopted the position that they have been granted jurisdiction over all military activities to prevent security threats in the EEZ, other States insist that the right to conduct military activities is included in the preserved high seas freedoms.¹³⁷ As both sides argue for their right to claim or prohibit military activities in the EEZ, it is uncertain which side will prevail.¹³⁸ At the debate on ‘peaceful uses of ocean space: zones of peace and security’ in 1976, Madagascar declared that it

could not accept a situation where its sovereignty, independence and security were subordinate to the defence interests of others, and where the rich countries used their technological superiority to weaken further the position of the developing countries in the fields of exploration and exploitation of marine resources and, in particular, in the political and military fields.¹³⁹

Many developing States at the meeting echoed this position. However, this debate did not reach any conclusion on whether military activities should be permitted or prohibited in the EEZ. Nearly half-a-century later, the situation that Madagascar could not accept continues.

A possible solution to resolve these conflicting positions is to treat the protection of security interests, including the core element of asserting the right to conduct military activities, as a residual right in the EEZ given the lack of explicit reference in UNCLOS.¹⁴⁰ The conflict is primarily between the need to conduct certain military activity to achieve the protection of the security interest of one State and the interests of another State. As such, whether a State has the right to conduct certain military activity in a given context is determined in such a way to ensure a balance between different States for protecting their respective interests.¹⁴¹ Among the declarations and statements made by States upon ratification of and accession to UNCLOS, Belgium, Ecuador, Germany, Italy, the Netherlands, Sweden and Uruguay made explicit references to the residual rights in the EEZ that are linked with the right to conduct military activities.¹⁴²

The guidance provided for resolving conflicts of residual rights in UNCLOS Article 59 is that it is to be ‘resolved on the basis of equity and in the light of all the 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’. Article 59 reaffirms the characteristic of the EEZ as a sui generis zone, which provides no presumption in favour of either party, but rather a basis for both sides to argue for rights and jurisdiction over military activities, as discussed in Chapter 3.¹⁴³

Security interests at sea present an overlapping situation where different States can advance their claim over the same military activity for different purposes. The prospect of classifying the protection of security interests in the EEZ as a residual right means that such rights are not automatically assigned to either the coastal State or other States, and the conflict arising from their exercise should be resolved ‘on the basis of equity and in the light of all the relevant circumstances’ within a given context.¹⁴⁴ When reviewing ‘all the relevant circumstances’, one must take into consideration the formula of attributing rights and freedoms between the coastal State and other States. As such, those favouring the coastal State must be adequately associated with their sovereign rights over natural resources and explicitly recognised jurisdiction whereas those favouring other States are closely associated with the recognised freedoms. Exercising the right to conduct military activities for security purposes, as with the exercise of other rights and freedoms, must be for peaceful purpose only and with due regard to other States’ co-existing rights and duties.

6.3 Conflicts Regarding Military Activities in the Exclusive Economic Zone

The lack of specific attribution of the right to protect security interests in the EEZ, crucially the conduct of military activities, has led to controversial interpretations and State practice that has resulted in conflicts. The controversies are focussed on two main issues: whether certain activities can be categorised as military activities, and who has the right to conduct these activities. The discussion here follows the formula set out in Article 59, and more broadly Part V of UNCLOS, concerning the attribution of rights to conduct military activities in the EEZ while taking into consideration the debate over their categorisation from both perspectives. However, it appears to be impossible to give a definitive attribution of the right to conduct military activities in the EEZ given the wide range of activities involved.¹⁴⁵ Four main types of activities can be identified that involve the operation of military vessels, aircraft and devices to analyse the attribution and the exercise of rights between the coastal State and other States.

6.3.1 Navigation, Overflight and Military Manoeuvres

Every State, whether coastal or landlocked, has the right to sail ships and fly aircraft entitled to fly its flag in and above the EEZ.¹⁴⁶ As customarily recognised, the freedom of navigation and overflight has never been absolute, in that it must be exercised for peaceful purposes only and with reasonable regard to the interests of other States in exercising their rights and freedoms, as well as fulfilling other conditions laid down in international law.¹⁴⁷ Such freedoms are subject to further restrictions in the EEZ as they need to be compatible with the sui generis legal regime.¹⁴⁸

The right of all States to navigate a military ship or fly a military aircraft in the EEZ must be exercised for peaceful purposes only. The desire to establish a legal order for the seas that will facilitate international communication and promote peaceful use of the seas is clearly recognised in the Preamble and repeated in various provisions of UNCLOS.¹⁴⁹ As discussed earlier, the ‘peaceful purposes/uses’ obligation does not exclude the simple movement of any military ships or aircraft in the EEZ.¹⁵⁰

In exercising the freedoms of navigation and overflight in the EEZ, States must give due regard to the rights and duties of other States using the same area. In terms of freedoms exercised by a foreign State, it must comply with the laws and regulations adopted by the coastal State in accordance with UNCLOS and other rules of international law.¹⁵¹ However, military entities enjoy immunity from coastal State jurisdiction in the EEZ, especially laws and regulations on the protection and preservation of the marine environment.¹⁵² This immunity is based on the grounds of State sovereignty and the principle of equity, because one State is not to be subjected to the jurisdiction of another.¹⁵³ When a foreign military entity violates a coastal State’s rights and jurisdiction, the coastal State may require the vessel to leave the operational site immediately and the flag State assumes responsibility for any loss or damage resulting from its activities.¹⁵⁴

There is emerging State practice challenging the freedom of navigation for military vessels powered by nuclear sources because of concerns about radioactive ocean contamination.¹⁵⁵ For instance, a nuclear-powered submarine with a 35 megawatt reactor produces about 22.4 grams of mixed fission products daily during operation, which after 100 days of disintegrating at the rate of 14.7 kilocuries, releases the equivalent amount of short-lived isotopes as a 0.42 kiloton atomic bomb.¹⁵⁶ Despite the relatively good safety record of nuclear-powered vessels, there are concerns over irreversible damage to the ocean environment that might be caused by a large amount of radioactive release resulting from either intentional or accidental damage or sinking of such vessels.¹⁵⁷ Numerous States restrict or forbid the movement of nuclear warships in their territorial sea and some have extended these restrictions to the EEZ.¹⁵⁸ However, the fact that nuclear-powered warships pose a potential environmental threat is not sufficient grounds to deprive them of the freedom of navigation in the EEZ. It remains the flag State’s right and obligation to implement the appropriate preventative measures for these vessels.

Traditionally, military exercises and manoeuvres are considered operational activities as part of the freedom of movement and communication on the high seas.¹⁵⁹ However, it is unclear, since the establishment of the EEZ, whether these activities are considered an internationally lawful use of the sea related to the freedom of navigation that are compatible with the EEZ legal regime, or are prohibited as incompatible with the EEZ regime, or are unattributed rights.¹⁶⁰ State practice also shows great divergence on this issue, particularly those manoeuvres involving weapons testing or live fire exercise.¹⁶¹ As stated earlier, upon signing or ratifying UNCLOS, Bangladesh, Brazil, Cabo Verde, Ecuador, India, Malaysia, Pakistan, Thailand and Uruguay explicitly declared that military exercises and manoeuvres, particularly those involving the use of weapons, are not permitted in the EEZ without the consent of the coastal State. Meanwhile, opposing declarations were made by Belgium, Finland, Germany, Italy, Sweden, the Netherlands and the United Kingdom.

It is a matter of fact that States routinely conduct military exercises and manoeuvres at sea, including in their own EEZ and in foreign EEZs, as well as on the high seas, either individually or jointly with the participation of the coastal State and a third State.¹⁶² These exercises, including missile testing and launching weapons and planes from an aircraft carriers or other warships, are important for military forces to test their strategic deployment and fighting skills in a broad range of scenarios, including evolving crisis and conflict situations.¹⁶³ For example, the North Atlantic Treaty Organization (NATO) routinely conducts large-scale military training and exercises.¹⁶⁴ NATO regularly deploys maritime forces in the Baltic Sea in order to exhibit forward presence, maintain a credible and capable defensive capability, and contribute to operational coherence among allied naval forces to support greater regional security and stability.¹⁶⁵

The coastal State, when conducting military exercises and manoeuvres within its EEZ, must have due regard to the rights and duties of other States and must maintain peaceful purposes. UNCLOS is silent on whether the coastal State may close a certain sea area to navigation for such activities, in contrast to the explicit reference to the right to suspend innocent passage temporarily ‘for the protection of its security, including weapons exercise’.¹⁶⁶ It may be argued that the coastal State could close a specified area within its EEZ for military exercises and manoeuvres provided that such closure has been duly published and is not impeding normal passage routes used for international navigation and overflight. NATO allies, for example, have used the Baltic Sea and the region surrounding it as a maritime training ground for over five decades. Known as the Baltic Operations (BALTOPS), the annual military exercise is aimed at delivering high-end training across the entire spectrum of naval warfare.¹⁶⁷

Military exercises and manoeuvres conducted in the EEZ by a foreign State are likely to be challenged by the coastal State, particularly if such activities involve the use of weapons, and/or take place in disputed areas, and/or during periods of political tension. Numerous examples exist. The military exercises jointly conducted by the United States and South Korea were often denounced by the Democratic People’s Republic of Korea as ‘an irresponsible and dangerous action’ and a ‘rehearsal for war’, which they responded to with threats of nuclear war.¹⁶⁸ China has firmly protested the annual joint military exercise between the Philippines and the United States, known as ‘Balikatan’ (shoulder-to-shoulder), and asserts that such activities have raised the risk of armed confrontation over the disputed South China Sea.¹⁶⁹ Such protests concerning foreign military activities are also common in the Baltic Sea, the Black Sea and the Mediterranean Sea, particularly in relation to the tension between NATO and Russia. Both Latvia and Sweden protested Russia’s missile tests and military drills in the Baltic Sea in 2018 and 2020, respectively.¹⁷⁰ With an acceleration of tension between Türkiye and Greece over their long-standing dispute concerning maritime rights and natural resources in 2020, both sides brought in allies to conduct military exercises and drills with the intention to demonstrate strength, and issued protests over the other side’s activities.¹⁷¹ Despite these ongoing challenges by the coastal States, the ICJ concluded in Nicaragua (Merits) that the conduct of military manoeuvres closer to a coastal State’s border is not in breach of ‘the principle of forbidding recourse to the threat or use of force’.¹⁷²

The operating State, either the coastal State or a foreign State, is obligated to adopt appropriate measures to ensure that its military entities act in a manner consistent with the environmental protection and preservation provisions in UNCLOS.¹⁷³ Such measures must not impair operations or operational capabilities of such entities and must be reasonable and practicable.¹⁷⁴ Such measures may include the assessment of environmental impacts and subsequent communication with potentially affected States.¹⁷⁵ However, the vague language and general obligation leaves a coastal State little to no means to challenge foreign military activity based on environmental obligations. Likewise, it would be difficult for any foreign State to challenge a coastal State’s military activity conducted in its own EEZ on the basis of environmental obligation.

In summary, warships and military aircraft of all States enjoy the freedom of navigation and overflight in the EEZ, including the freedom to conduct military manoeuvres despite the lack of consensus in relation to their legalities among States.¹⁷⁶ As long as these activities are conducted consistent with the due regard obligation and peaceful purposes, they are not prohibited in principle.¹⁷⁷ Up until a certain point, foreign military presence and exercises are to be tolerated in the EEZ of a coastal State. In the problematic situation where weapons are used, there are a range of factors that would be applicable in determining whether their use fulfils these requirements, particularly the due regard obligation. These would include whether such use causes undue restriction on the freedoms of navigation and overflight, or causes harm to natural resources. The operating State must ensure that it fulfils these obligations and assumes responsibility if such exercises damage the rights and jurisdiction of the coastal State, or the freedoms of other States. In order to reduce tension, it would be a good practice for the operating State to give notice to the coastal State or other interested States and provide information of what, when and where such military exercises will take place. Moreover, given the circumstances and by the nature of the rights that could be affected by the military exercise, the operating State should initiate a certain level of consultation with the rights-holding State to fulfil their due regard obligation.¹⁷⁸

6.3.2 Espionage, Intelligence Gathering and Surveillance

States have advanced the need to acquire knowledge of maritime areas, mainly through intelligence gathering activities, to make decisions about their national defence strategies.¹⁷⁹ There is no general rule in international law that prohibits or limits activities of intelligence gathering beyond the limit of the territorial sea.¹⁸⁰ Despite different interpretations on the legality of military intelligence gathering in the EEZ, in practice, States have tolerated such activities for a long time.¹⁸¹ Peacetime military intelligence gathering, also known as reconnaissance or espionage, is principally conducted by space-based, airborne, ship-based and seabed-attached maritime surveillance systems, including cyber infrastructure.¹⁸² Although peacetime military intelligence gathering does not per se violate international law, the method by which it is carried out might do so.

Satellite-based reconnaissance was initiated by the United States in 1958 to spy on the Union of Soviet Socialist Republics (USSR) and its allies.¹⁸³ The Galactic Radiation and Background satellite system, the first satellite system for signal surveillance, detected radar as it passed within the line of sight of a transmitting radar system; it then beamed down the radar signals it intercepted to a network of ground stations and transferred them to magnetic tape, which was then taken by courier to the United States for analysis.¹⁸⁴ The technology of the Galactic Radiation and Background satellite system is now obsolete, but conducting electronic surveillance from orbit continues to be a primary technique.¹⁸⁵ Except in cases that use artificial islands, installations and structures for on-land stationing, conducting satellite-based reconnaissance in another State’s EEZ is less likely to interfere with the coastal State’s sovereign rights or jurisdiction.

Airborne surveillance systems are operated by military aircraft that collect both signal and electronic intelligence, which has the advantage of providing regular, real-time surveillance of the electromagnetic emissions in important parts of the spectrum that are undetectable from ground sites.¹⁸⁶ Traditional manned aircraft can intercept and record the emissions of radar and other radio/electronic systems, as well as signals of computer-to-computer data traffic, and even phone traffic, to map air defence networks, airfields and missile batteries for target planning purposes.¹⁸⁷ The advanced airborne facility involves unmanned aerial vehicles, which can be launched outside the EEZ on a pre-programmed mission without the launching ship or aircraft actually entering the zone itself.¹⁸⁸ Since the coastal State’s jurisdiction in the airspace above the EEZ is limited to activities for the economic exploitation and exploration of the zone, such as the production of energy from wind, it would be difficult to challenge foreign airborne surveillance unless it interferes with these economic activities.¹⁸⁹

Likewise, military surveillance ships are widely used to collect intelligence at sea. For example, the United States maintains six ocean surveillance ships as part of the twenty-one ships under the Military Sealift Command’s Special Mission programme,¹⁹⁰ which routinely collects intelligence on the high seas and in foreign EEZs, despite diplomatic protests from China, India, Brazil and other States.¹⁹¹ The surveillance ships conduct a variety of missions, including collecting signal and electronic intelligence; monitoring naval exercises, communications, or combatant surveillance; monitoring the movement of ballistic missile–carrying submarines; and using passive and active low-frequency sonar arrays to detect and track undersea threats.¹⁹² Some of the detection techniques used by the surveillance ships – high-powered sonar arrays, for example – may disorient or injure whales and other marine mammals,¹⁹³ which arguably could interfere with the coastal State’s sovereign rights to explore, conserve and manage such resources.

There have been increasing concerns regarding the legitimacy of certain highly advanced technologies used in intelligence gathering and surveillance. Particularly relevant in this context are active signals intelligence activities, some of which are deliberately provocative and are intended to generate responses from the targeted coastal State, while others may involve intercepting naval radar and emitters to locate, identify and track surface ships in the targeted areas.¹⁹⁴ These activities do not have a direct impact on natural resources and appear to cause far greater interference with communication and defence systems of the targeted State. These highly provocative activities may cause or exacerbate conflicts, since many coastal States consider them hostile and incompatible with the peaceful purposes obligation.¹⁹⁵

The lack of legal clarity in relation to espionage, intelligence gathering and surveillance in the EEZ has been problematic, especially in situations where such activities are conducted in a foreign EEZ.¹⁹⁶ Alongside the firm position held by the United States, the United Kingdom also considers the airspace above the EEZ as international airspace, in which military aircraft of another State may lawfully fly ‘for the purpose of surveillance and observation of activities within that other state’s national airspace or territory’.¹⁹⁷ China, on the other hand, constantly challenges unauthorised foreign intelligence-gathering and surveillance activities in its EEZ.¹⁹⁸ China recognises that all States enjoy ‘the freedom of navigation and overflight and of laying submarine cables and pipelines, and shall enjoy other legal and practical marine benefits associated with these freedoms’ within the Chinese EEZ.¹⁹⁹ However, the phrase ‘other legal and practical marine benefits associated with these freedoms’ is different from the expression of ‘other internationally lawful uses of the sea related to these freedoms’ used in UNCLOS Article 58(1). The phrase in the Chinese law only equals the expression of ‘such as those associated with the operation of ships, aircraft and submarine cables and pipelines’ that was used to exemplify ‘other internationally lawful uses’.²⁰⁰ This language would narrow the scope of the associated freedoms enjoyed by other States, which is arguably intended to restrict foreign military activities in China’s EEZ.

The debate over foreign intelligence-gathering activities was highlighted in April 2001 when a US Navy EP-3 surveillance plane collided with a Chinese F-8 fighter jet approximately 70 NM southeast of Hainan Island, killing the Chinese pilot and making a forced landing at Lingshui Military Airport.²⁰¹ The Chinese view was that the intelligence collected could be used for hostile purposes and such activity went far beyond the scope of overflight and abused such a freedom, breaching the due regard obligation and peaceful purposes, which constituted an infringement upon China’s sovereignty.²⁰² The United States claimed it was engaging in a traditional military activity over international waters, which was legally permissible and conducted with due regard of China’s rights as a coastal State.²⁰³ It is generally recognised that the airspace above the EEZ is governed by the ‘specific legal regime’ as established in UNCLOS, which is different from the international space asserted by the United States.²⁰⁴ Thus, the United States military plane flying above the Chinese EEZ must fulfil the obligation of operating for peaceful purposes and have due regard to the rights and duties of China.²⁰⁵ However, the mere assertion that performing reconnaissance in the EEZ constitutes an abuse of the right of overflight seems too weak to support China’s position of prohibiting the entrance of US aircraft altogether. The Chinese position is further weakened by its own increased surveillance activities in the East and South China Sea, particularly around disputed islands with Japan, as well as observing a US missile defence test off Alaska in 2017 and 2021.²⁰⁶

There have been many incidents involving coastal States and foreign surveillance ships in Asian waters. In December 2001, the Japanese Coast Guard chased an alleged North Korean spy ship out of its EEZ using at least twenty-five vessels and fourteen aircraft, attacking and eventually sinking the suspected ship in China’s EEZ, killing the fifteen crewmembers on board.²⁰⁷ The United States and China continue to have confrontations in the Yellow Sea, the East China Sea and the South China Sea, with China challenging the activities of US surveillance ships. Most notably, on 8 March 2009, five Chinese vessels surrounded the USNS Impeccable approximately seventy-five miles south of Hainan Island in the South China Sea and forced it to stop operating and leave the area.²⁰⁸ The United States made a formal complaint, labelling the Chinese actions as reckless, unprofessional and unlawful; China responded that Impeccable had illegally engaged in intelligence data gathering and was in violation of Chinese domestic law and international law.²⁰⁹ Given the ongoing tension around disputed islands in the East and South China Seas and the battle for maritime dominance between China and the United States in the Asia-Pacific region, the suspicion over foreign military surveillance activities will continue to provoke conflicts among the coastal State and operating States.²¹⁰

The need to obtain intelligence in the EEZ seems even more important for the coastal State based on its security concerns. Coastal States are also not prohibited from conducting espionage, intelligence-gathering and surveillance activities in their EEZs provided that they are not impeding the freedoms of navigation and overflight and such activities are for peaceful purposes. In addition to the often secret espionage activities, coastal States are increasingly using air defence identification zones (ADIZ) and maritime identification zones to obtain information that could further complicate the debate on military intelligence gathering and surveillance activities in the EEZ.²¹¹ These coastal surveillance regulations should have limited impacts on foreign military aircraft and ships, since they should be exempted given their immunity status. However, there has been some questionable State practice on the applicable regulations that were adopted with an aim to limit foreign espionage activities. China, for example, requires all aircraft entering the East China Sea ADIZ to submit flight plans and maintain communications through radio and radar, and will assert necessary armed response to non-compliant aircraft.²¹²

Unlike in the territorial sea, where ‘any act aimed at collecting information to the prejudice of defence or security of the coastal States’ is forbidden, such activities are not specifically outlawed in the EEZ.²¹³ Despite the ongoing debates, both the coastal State and other States have been conducting espionage, intelligence-gathering and surveillance activities in the EEZ. In general, these activities have the essential feature that the data generated are used for military purposes only and are not released to the public. It is often accepted that the operating State has the right to determine if a certain activity is of military nature and for military purposes, with other States having less means to question this categorisation.²¹⁴ The coastal State, for instance, would have to accept that the data allegedly collected for military purposes does not have direct economic value and would not impede the normal exercise of its sovereign rights and jurisdiction. Nevertheless, the increasing sophistication of surveillance capabilities has put the appropriate balance between the coastal State and the operating State to a test, as the security interests recognised and protected in the territorial sea or even the territory of the coastal State may be infringed upon without the offender physically entering these areas.²¹⁵ However, until the right to protect security interests is recognised in the EEZ, the coastal State does not have a strong legal position to challenge the legality of intelligence gathering and surveillance by a foreign State, other than the vague mutual due regard obligation and the prohibition on the threat or use of force.

6.3.3 Military Survey and Research

The military survey is another type of military activity that has been routinely conducted in the EEZ irrespective of the controversy over its legitimacy.²¹⁶ It is closely related to the hydrographic survey, oceanographic survey and marine scientific research activities. UNCLOS has relatively clear rules on jurisdiction over marine scientific research in the EEZ, but since it does not provide definitions for any of these activities, States employ differing interpretations that may confuse the attribution of jurisdiction over a specific activity. Thus, there is often disagreement over whether surveys are a marine scientific research activity, and whether military surveys and research should be exempted from coastal State jurisdiction.

Marine scientific research, in general, refers to ‘any study or related experimental work designed to increase man’s knowledge of the marine environment’ that falls under coastal State jurisdiction in the EEZ.²¹⁷ Hydrographic survey is defined by the International Hydrographic Organization as

[a] SURVEY having for its principal purpose the determination of DATA relating to bodies of water. A hydrographic survey may consist of the determination of one or several of the following classes of DATA: DEPTH of water; configuration and NATURE OF THE BOTTOM; directions and force of CURRENTS; HEIGHTS and TIMES of TIDES and water stages; and location of topographic features and fixed objects for survey and navigation purposes (emphasis in the original).²¹⁸

Oceanographic survey is defined as ‘[a] study or examination of any physical, chemical, biological, geological or geophysical condition in the OCEAN, or any part of it. An expedition to gather DATA, samples or information to conduct such studies or examination’ (emphasis in the original).²¹⁹

The 1958 Convention on the Continental Shelf distinguished between ‘purely scientific research into the physical or biological characteristics of the continental shelf’ and other resource-oriented research.²²⁰ The former refers to activities that are solely intended to increase human knowledge about the ocean with the results made internationally available, regardless of their subsequent application, while the latter refers to those undertaken primarily for specific practical purposes, commonly known as applied scientific research.²²¹ The coastal State may not normally withhold its consent for pure scientific research, but may reserve authorisation over applied scientific research.²²²

UNCLOS does not distinguish survey from scientific research, but various articles refer to research and survey activities separately, and Part XIII deals solely with marine scientific research.²²³ A close reading of the provisions shows that the separation only occurs in the context of special passage regimes, including innocent passage, transit passage and archipelagic sea lanes passage, to ensure such passage is ‘continuous and expeditious’.²²⁴ It is unclear why survey activities have been singled out in these provisions, but State practice remains divided on whether UNCLOS established a separate legal regime for surveying.²²⁵

UNCLOS nevertheless implies its acceptance of the different treatment between pure and applied scientific research as adopted in the 1958 Convention on the Continental Shelf. It requires that coastal States should normally ‘grant their consent for marine scientific research projects’ in their EEZs or on their continental shelves to be carried out ‘in order to increase scientific knowledge of the marine environment for the benefit of all mankind’, emphasising the right to reserve consent for projects for any specific practical purposes.²²⁶ Surveys, both hydrographic and oceanographic, serve the purpose of obtaining knowledge of the condition of the waters and the seabed. Some survey activities also employ the same methods and equipment as scientific research, in particular oceanographic sampling, mid-water and ocean floor parameters, launch and recovery of hydrographic survey launches or other scientific packages, including the handling, monitoring and servicing of remotely operated vehicles.²²⁷ Hence, surveys in general should be considered part of the broader scope of marine scientific research as a type of applied scientific research. However, certain specific survey activities may be exempted from coastal State jurisdiction if they can be assimilated to other preserved freedoms, such as cable surveys, which are regarded as activities associated with the operation of submarine cables.²²⁸ Jurisdiction over hydrographic and oceanographic surveys is more controversial because they provide vital information to determine the geographical features of the seabed that facilitates the exploration and exploitation of natural resources, which are of great concern for coastal States’ economic interests.²²⁹

The US Navy has adopted the definition of military survey as

activities undertaken in territorial seas, archipelagic waters, straits for navigation, the EEZ, high seas and on the continental shelf involving marine data collection (whether or not classified) for military purposes (not normally available to the general public or scientific community). Military surveys can include oceanographic, hydrographic, marine geological, geophysical, chemical, biological, acoustic and related data.²³⁰

Most of these activities can be classified under the category of hydrographic survey, subordinate to a broader definition of marine scientific research.²³¹ The key element that the US Navy uses to differentiate military surveys from marine scientific research is the ‘military purposes’ whereby data is not made available to the public.²³² The information generated during a military survey is essential for ‘effective submarine operations, anti-submarine warfare, mine warfare and mine countermeasures’, particularly in waters where ‘oceanographic and underwater acoustic conditions vary widely with uneven bottom topography, fast tidal streams and a relatively high level of marine life’.²³³ Similar to the data collected by intelligence gathering and surveillance activities, a military survey provides the operating State important knowledge to make decisions about their defence strategies.

The United States routinely conducts military surveys and research seaward of foreign territorial seas and has continued to do so since the establishment of the EEZ.²³⁴ It has also clearly stated that hydrographic surveys and military surveys are not marine scientific research.²³⁵ The US Navy has eight ships dedicated to surveying and research. Two are general-purpose oceanographic research vessels that are manned by contracted commercial crews.²³⁶ It also maintains six oceanographic survey ships as part of the twenty-one ships under the Military Sealift Command’s Special Mission programme.²³⁷ These survey ships perform acoustic, biological, physical and geophysical surveys using multi-beam, wide-angle, precision sonar systems that are the same as used for hydrographic surveys to collect data on the ocean environment.²³⁸ However, the United States insists that these naval operations are required not to be combined with marine scientific research activities.²³⁹

In contrast, both China and India take the position that military hydrographic surveys fall under the scope of marine scientific research that is subject to the coastal State’s jurisdiction in the EEZ.²⁴⁰ China requires foreign organisations or individuals that wish to conduct such activities in its EEZ to obtain approval from the competent authorities and observe the provisions of relevant Chinese laws, administrative rules and regulations.²⁴¹ This requirement would forbid any foreign entity from conducting military surveys without explicit consent from the Chinese government. China has frequently confronted US military survey and research ships in its EEZ. For example, in September 2009, USNS Bowditch was confronted and followed by Chinese patrol planes and vessels in the Yellow Sea while doing oceanographic surveys, which led to a collision between a Chinese fishing vessel and Bowditch that damaged its sonar system.²⁴² India also has restricted foreign military activities in its EEZ.²⁴³ It challenged the USNS Bowditch for conducting military surveys in its EEZ in 2004, with India claiming that ‘the warship gathered data that could reveal much military information on the ocean environment, including identifying possible underground nuclear facilities and submarines. Such data helps reorient technology in undersea warfare and enemy ship detection’.²⁴⁴

There is no general consensus in relation to military surveys and research in the EEZ.²⁴⁵ It could be argued that surveys are a type of marine scientific research that should be regulated by the coastal State in the EEZ except those that can be exempted. The crucial issue is whether military surveys and research should be exempted from coastal State jurisdiction due to their military purpose. The data collected could be used to support the safety of navigation, increase the knowledge of the marine environment for economic purposes, or assist with warfare planning. In practice, the coastal State cannot be certain of the type and purpose of the survey or research that military entities are conducting in its EEZ, which tends to raise suspicions and provoke conflicts.²⁴⁶ The coastal State may only challenge such activities if they violate its sovereign rights over natural resources or jurisdiction over marine scientific research, but they lack a legal basis to challenge such vessels for constituting a threat to its security interests.

Due to the highly political nature and sensitivity of the data collected, it seems unlikely that disputes on this matter will be easily resolved between States or settled by international courts and tribunals in the near future.²⁴⁷ It would help to ease tensions if the operating State obeyed the due regard obligation and refrained from collecting data vital to the coastal State’s economic interests and gave assurances through notification of the survey time and location. The operating State may also release the data collected, wholly or partially, after a period of time when the secrecy is no longer needed. In particular, if the military research can ‘increase scientific knowledge of the marine environment for the benefit of all mankind’, the research data should be made available to the public.²⁴⁸

6.3.4 Military Installations, Structures and Other Devices

Many maritime powers have deployed various military devices, installations and structures in and onto the ocean floor, including the seabed of foreign EEZs, that play a significant role in military uses of the sea.²⁴⁹ These objects can be placed on the seabed directly, or through storage and other facilities, including submarines, submarine cables, platforms or installations fixed onto the seabed.²⁵⁰ Examples of these objects include undersea data centres, espionage equipment, sonar monitoring and surveillance systems, navigation aids for submarines and warships, armed mines and other weapon systems.²⁵¹ Given the lack of explicit attribution of the right to deploy military objects in the EEZ, the attribution and exercise of such a right should follow the rules established in Article 59 of UNCLOS and the obligations of exercising co-existing rights. Each type of military object will be discussed below to determine whether they are more closely associated with the communication freedoms under Article 58, or with the sovereign rights and jurisdiction of the coastal State, particularly its jurisdiction over ‘installations and structures’ under Article 60.

Submarines and other warships deploy listening equipment and other detection and communication devices to monitor the positions, movement and numbers of submarines or other military forces in the targeted area.²⁵² They are essential components of anti-submarine warfare, which dates back to the First World War when ‘the British effectively used listening devices (hydrophones) and aircraft to detect German U-boats, and depth charges and mines to sink them’.²⁵³ The continental slope is an ideal area to place anti-submarine warfare sonar devices, as they can pick up sounds at a greater distance over the deep seabed, and the advancement of technology over the past five decades provides a high degree of accuracy.²⁵⁴ These data provide important information to assist with targeting and navigation, as well as scouting another State’s military capability and movements, which could be essential in avoiding surprise attacks.²⁵⁵ It seems that these monitoring and surveillance devices are more closely associated with the operation of ships than the exploration and exploitation of natural resources. States often argue that the use of such devices is essential to protect their security interests, but many of them still challenge the deployment of these devices by a foreign State within their EEZ or on their continental shelf.

States are also deploying various expendable marine instruments to collect data about the water column for a variety of purposes, including modelling global warming and other hydrologic changes, locating natural resources and monitoring the movement of submarines and other naval operations.²⁵⁶ Both warships and scientific research ships routinely deploy expendable instruments into the ocean, with an estimated deployment of millions of such instruments worldwide between the 1960s and 1990s.²⁵⁷ Underwater explosions or disposal of unwanted explosives at sea can have harmful effects on marine living creatures and the environment due to the shock waves and release of toxic chemicals.²⁵⁸ When such expendable instruments are used as part of a marine scientific research project in the EEZ, they must be authorised by the coastal State.²⁵⁹ Given that their use is mainly for navigation and survey purposes, military forces of all States may deploy such instruments in the EEZ. Their use must observe the obligations set out in UNCLOS for military activities at sea. In particular, the use of expendable instruments in the EEZ must not interfere with the exercise of another States’ rights and duties, including the coastal State’s sovereign rights and jurisdiction.²⁶⁰ The operating State should also adopt appropriate measures to ensure that their normal uses are consistent, as far as is reasonable and practicable, with environmental protection and preservation requirements.²⁶¹

States have traditionally deployed armed mines and other weapon systems on the seabed. The 1971 Seabed Treaty prohibits the emplacement of nuclear weapons and other weapons of mass destruction and of installations specially designed to store, test or use them on the seabed beyond 12 miles from shore.²⁶² But the treaty is silent on other conventional weapons. It could be argued that, in peacetime, the emplacement of weapons on the continental shelf by both the coastal State and other States is not in full compliance with the peaceful purposes obligation except for legitimate self-defence as recognised by the UN Charter.²⁶³ In addition, deploying weapon systems by a foreign State in a nearby marine area poses direct threats to a coastal State’s security interests, along with the possibility of causing irreparable damage to the marine environment, and interferes with the exercise of the rights and freedoms by other States in the EEZ.²⁶⁴

Submarine cables, including the repeaters, could also be used for military purposes.²⁶⁵ The military may build, purchase or lease a submarine fibre optic cable for a variety of purposes, including telecommunications, acoustic monitoring and bilateral communications.²⁶⁶ The US Navy, for example, maintains two cable laying/repair ships to transport, deploy, retrieve and repair undersea cables.²⁶⁷ Moreover, the military could use a purpose-built submarine or unmanned underwater vehicle to physically tap communication cables in order to collect, alter or jam any traffic transmitted through them, particularly in relation to cyber operations.²⁶⁸ Furthermore, as technology develops, the military could build undersea data centres associated with or without a submarine cable.²⁶⁹ The freedom to lay submarine cables, including uses associated with the operation of cables, should apply to military cables.²⁷⁰ Tapping operations of submarine cables in the EEZ do not constitute a violation of the rights of the coastal State unless they interfere with the exploration and exploitation of the seabed and its natural resources.²⁷¹ The establishment of military undersea data centres, either an installation or structure, by a foreign State in the EEZ would be questionable if it interferes with exercise of the rights of the coastal State.²⁷²

It is relevant to clarify the scope of a coastal State’s jurisdiction under Article 60 over the use of installations and structures in the EEZ.²⁷³ The coastal State’s ‘exclusive right to construct and to authorize and regulate the construction, operation and use of’ installations and structures is limited to those ‘for the purposes provided for in Article 56 and other economic purposes’ and those that ‘may interfere with the exercise of the rights of the coastal State in the zone’.²⁷⁴ Apart from resource-related activities, these economic purposes include ‘other activities for the economic exploration and exploitation of the zone, such as the production of energy from the water, currents and winds’, marine scientific research, and the protection and preservation of the marine environment.²⁷⁵ A plain reading of this provision may lead to the conclusion that the use of military objects on the seabed, which generally are not for resource-related purposes, is exempted from the exclusive right of the coastal State. However, a coastal State may find legitimate grounds to challenge the use of foreign military installations or structures if they interfere with the exercise of its rights and jurisdiction in the EEZ. The extension to potential interference expands and strengthens the legal basis for the coastal State to challenge the deployment of these military objects.²⁷⁶

Under the 1958 Convention on the Continental Shelf, the coastal State is entitled to construct and maintain or operate on the continental shelf ‘installations and other devices’ necessary for the exploration and exploitation of its natural resources.²⁷⁷ Under UNCLOS, the language was changed to ‘installations and structures’ and the term ‘devices’ is used separately elsewhere.²⁷⁸ This distinction indicates that the two terms have a different connotation. The term ‘devices’²⁷⁹ refers to objects that operate in certain mechanical or chemical ways or have attributes permitting their use for the performance of certain tasks, while the term ‘structures’²⁸⁰ refers only to those lacking operative characteristics or functional attributes.²⁸¹ The term ‘structures’ is a narrower concept than ‘devices’.²⁸² This interpretation is confirmed in Article 209, where the two terms are phrased as ‘vessels, installations, structures and other devices’, indicating that the term ‘devices’ includes ‘structures’.²⁸³ Consequently, ‘devices’ that cannot be considered as ‘structures’ are not objects that fall under the exclusive rights and jurisdiction of the coastal State.²⁸⁴

Under contemporary international law, it is arguable that any State can use the ocean floor of the EEZ and the continental shelf to deploy and service military devices, installations and structures that do not fall under the jurisdiction of the coastal State, even with the contrary argument from a coastal State that is often backed by political objections.²⁸⁵ Nevertheless, the uses of these military objects must fulfil important obligations. First, such uses of the seabed must be for peaceful purposes only, and weapons systems should not be deployed unless for legitimate self-defence purposes. Second, the operating State must comply with the due regard obligation, whereby there should not be any unreasonable interruption to the exercise of rights and freedoms of other States, particularly those of the coastal State. However, there is a considerable difference between the operating State fulfilling its obligations and the coastal State forbidding these activities, as the latter denies such uses as a freedom.

6.3.5 Remarks on Conflicting Practices

The preceding discussion demonstrates that, even though there is no clear attribution of jurisdiction over military activities in the EEZ, both coastal States and other States routinely conduct such activities. The key controversies are that States have different interpretations of whether a foreign State may conduct certain military activities in the EEZ of another State, and what kind of restrictions are placed on the operating State.

The resolution of conflicts regarding the conduct of military activities in the EEZ should follow the formula provided by Article 59. Certain foreign military activities would be restricted to give priority to the coastal State’s economic interests in the EEZ.²⁸⁶ For example, foreign military activities must not involve the exploration and exploitation of natural resources in the EEZ, nor can they unduly interfere with the exercise of the EEZ-related rights of the coastal State.²⁸⁷ Military manoeuvres, especially those that involve the use of weapons, should be balanced with the coastal State’s sovereign rights either through notification or consultation. However, military activities that do not interfere with the coastal State’s sovereign rights can be carried out by all States. These activities include military navigation and overflight, espionage, intelligence gathering, surveillance, military survey and the use of military devices.

The exercise of the right to conduct all peacetime military activities, by both the coastal State and other States, must fulfil the reciprocal due regard obligation to other States. Military activities that have a severe impact on natural resources or cause irreparable damage to the marine environment could be considered as violating the coastal State’s rights and jurisdiction.²⁸⁸ For example, if foreign military manoeuvres and ballistic exercises take place in a fishing area, or in close proximity to an active offshore oil platform, or as near as 13 NM from the coast, the coastal State may oppose or impose certain requirements.²⁸⁹ In turn, the coastal State should not conduct any military activities that unduly impair the freedoms of navigation and overflight, the laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to these freedoms.

In cases where the coastal State determines that the foreign warship or military aircraft has abused its rights in the EEZ, the coastal State, even though it cannot exercise enforcement jurisdiction, may require the departure of foreign military entities from this maritime area.²⁹⁰ In addition, if the alleged wrongful act has caused any loss or damage to the coastal State, the flag State must bear international responsibility for such wrongdoings.²⁹¹ In cases where the foreign State asserts that its freedoms have been affected by the coastal State’s conduct of a military activity, it may challenge such conduct initially through diplomatic channels. States must be cautious as to what measures are used against another State’s warship or military aircraft. As a warship is ‘an expression of the sovereignty of the State whose flag it flies’, ‘any action affecting the immunity of warships is capable of causing serious harm to the dignity and sovereignty of a State’ and hence ‘imping[e] on the maintenance of international peace and security’.²⁹²

It is noteworthy that disputes concerning military activities are optional exceptions to the compulsory third-party dispute settlement procedures established by UNCLOS. Upon signing, ratifying or acceding to UNCLOS, or at any time thereafter, any State may declare in writing that it does not accept the compulsory procedures with respect to ‘disputes concerning military activities, including military activities by government vessels and aircraft engaged in non-commercial service’.²⁹³ As of 2024, twenty-four States have made declarations to exclude themselves from the compulsory procedures with regard to this exception.²⁹⁴ Moreover, the United States holds the opinion that, under Article 298(1)(b), each State party has the exclusive right to determine whether its activities are or were ‘military activities’ and that such determinations are not subject to review.²⁹⁵ The distinction between certain military activities and non-military activities, particularly survey, research and law enforcement activities has blurred considerably. The distinctive feature of a military activity is based ‘primarily on an objective evaluation of the nature of the activities in question, taking into account the relevant circumstances in each case’.²⁹⁶ Given the political nature of disputes concerning military activities, it is not very likely that this kind of dispute will soon come before an international tribunal. It is highly recommended that States reconcile their differences through mutual understanding and confidence-building measures to avoid escalation of disputes over military activities in the EEZ.

6.4 International Efforts to Reconcile Conflicts over Military Activities

6.4.1 Agreements to Prevent Incidents at Sea

As political tensions kept rising during the Cold War, the USSR concluded a number of bilateral agreements with Western maritime powers to prevent incidents between their military entities at sea beyond the limit of the territorial sea.²⁹⁷ These agreements were formulated to reduce misunderstanding between the parties and to promote safety at sea for all interested States.

In order to prevent the accidental outbreak of nuclear war in light of several close incidents between naval forces in the 1960s, the United States and the USSR concluded the 1972 Agreement on Prevention of Incidents on and over the High Seas (US-USSR Agreement), which came into force on the same day.²⁹⁸ The US-USSR Agreement obligates the parties to ‘take measures to instruct commanding officers of their respective ships to observe strictly the letter and spirit of the International Regulations for Preventing Collision at Sea’ and the principles with respect to conducting operations at sea as recognised in the 1958 Convention on the High Seas.²⁹⁹ Specifically, it provides detailed guidelines for preventing accidents on the high seas while conducting naval operations.³⁰⁰ In an amendment made by an exchange of notes between the two States in 1998, the US-USSR Agreement applies to ‘waters outside the limits of the territorial sea’.³⁰¹ Consequently, these operational guidelines are applicable to both parties’ navies, where each is operating in the other’s EEZ.

The USSR concluded similar bilateral agreements for the purpose of reducing provocative or risky behaviour of armed forces and military aircraft beyond the limit of the territorial sea with the United Kingdom in 1986,³⁰² with Germany in 1988³⁰³ and with France, Canada and Italy in 1989³⁰⁴ (USSR Prevention of Incidents at Sea Agreements). It is notable that all of these agreements have adopted practical measures to assist the State parties in fulfilling their obligations, including the requirements for an annual meeting to review the implementation of the terms, and the use of mutually agreed special signals for communication or marks to be used by the ships and aircraft.³⁰⁵

The USSR Prevention of Incidents at Sea Agreements suggest that, at least among contracting parties, all States have an unfettered right to conduct weapons exercises, naval manoeuvres and other military activities beyond the territorial sea, including in a foreign EEZ. Moreover, it is important for States to exchange information and clarify their intentions when conducting military activities, not out of a legal obligation of general international law but for good faith, political and security purposes, in order to promote mutual trust and avoid misunderstandings and thus reduce the chance of potential conflicts.

Since the end of the Cold War, China has been a consistent challenger to the military activities conducted by the United States within its EEZ through operational means.³⁰⁶ By ‘recognizing the need to promote common understanding regarding activities undertaken by their respective maritime and air forces when operating in accordance with international law, including the principles and regimes reflected in the [UNCLOS]’, the United States and China concluded the Agreement on Establishing a Consultation Mechanism to Strengthen Military Maritime Safety in 1998 (US-China Agreement).³⁰⁷ It establishes a stable channel for consultations between the two States consisting of three mechanisms, namely annual meetings, working groups of subject matter experts and special meetings for consulting on specific matters.³⁰⁸ The US-China Agreement has played a momentous role in dealing with incidents between the two States. For instance, the two sides held several special meetings in Beijing after the April 2001 collision discussed earlier in the chapter, which led to an agreement on compensation, the release of the crew and the return of the EP-3 plane, resolving this incident without causing serious setbacks to the relationship between the United States and China.³⁰⁹ In 2014, the two States signed two memoranda of understanding (MOUs) establishing voluntary confidence-building measures intended to manage risk, enhance mutual understanding and avoid miscalculation between the two militaries: the Notification of Major Military Activities MOU and the Rules of Behavior for Safety of Air and Maritime Encounters MOU.³¹⁰ The actual value of the US-China Agreement and MOUs, however, might not have been fully realised, since it has not prevented conflicts from arising.³¹¹ In particular, the bilateral dialogue has been interrupted by the tension in the South China Sea and the Taiwan Strait where both sides blame the other State of provoking actions that threat the stability of the region.³¹²

It is noteworthy that an agreement to prevent an escalation of tensions between militaries at sea would have more influence if it was agreed to and obeyed by many State parties. In 2014, at the Western Pacific Naval Symposium, a series of biennial meetings of Pacific nations to discuss naval matters, naval chiefs of twenty-one States adopted a non-binding Code for Unplanned Encounters at Sea (CUES) that has been subsequently amended.³¹³ CUES is a set of rules-of-the-road standardising safety protocols, basic communications and basic manoeuvring at sea for ships and aircraft to avoid misjudgement, misunderstanding and mismanoeuvring among navies.³¹⁴ Despite of its non-binding nature, CUES may contribute to the improvement of good order at sea and prevent accidental conflicts should the navies follow these rules.

Given that the most controversial practice is between the coastal State that seeks to halt foreign military operations in its EEZ and other States that continue to conduct them, a bilateral agreement or arrangement to prevent conflicts and avoid escalatory events seems necessary and appropriate. An agreement to avoid accidents is one of the confidence-building mechanisms that enhances mutual knowledge and understanding of military activities at sea between the State parties, consequently reducing the possibility of conflict by accident, miscalculation, or failure of communication.³¹⁵ These practices provide a functional framework for States to pay mutual respect to military uses of the sea, and should be implemented effectively and efficiently.

6.4.2 Regional Disarmament Efforts

The international community is moving steadily towards peace and security, including global nuclear non-proliferation and disarmament through strengthening political and legal frameworks.³¹⁶ Global disarmament efforts affect the general acceptance and use of weapons at sea. States have adopted a number of regional arrangements and treaties that indicate their support for limiting the use of weapons at sea, particularly nuclear weapons, weapons of mass destruction and other strategic weapons.³¹⁷ These regional frameworks not only apply to the territorial sea and the EEZ of the State parties but also extend to the high seas. These agreements should be compatible with UNCLOS without affecting the enjoyment of rights or the performance of obligations by States but, nevertheless, may to varying degrees affect the conduct of military activities involving nuclear-armed warships.³¹⁸

The Antarctic Treaty was adopted in 1959 with the aim to reserve the Antarctic for peaceful purposes only and to promote scientific research.³¹⁹ It covers the area south of 60° South latitude, within which State parties shall prohibit ‘any measures of a military nature, such as the establishment of military bases and fortifications, the carrying out of military maneuvers, as well as the testing of any type of weapons’.³²⁰ The demilitarisation of the Antarctic has eliminated potential armed conflicts or military incidents arising from the complex territorial disputes in the region.³²¹ By acceding to the Antarctic Treaty, State parties agreed to abolish the military use of the treaty area, including their frozen maritime zone claims.³²² The Antarctic Treaty remains in force indefinitely, and as of 2024 has twenty-nine Consultative Parties and another twenty-eight Non-Consultative Parties that have no decision-making power.³²³

The efforts of the littoral States to establish the Indian Ocean as a zone of peace date back to the 1970s as a response to the military rivalry between the United Kingdom, the United States and the USSR in the region.³²⁴ This led to the adoption of UNGA Resolution 2832 (1971), which recognises this movement and declared the Indian Ocean, together with the air space above and the sea floor subjacent thereto, to be a ‘zone of peace’.³²⁵ It called on all superpowers to enter into immediate consultations with the littoral States with a view to ‘halting the further escalation and expansion of their military presence’ and to remove ‘all bases, military installations and logistical supply facilities, the disposition of nuclear weapons and weapons of mass destruction and any manifestation of great Power military presence’ from the region.³²⁶ It also called on States to make efforts to establish ‘a system of universal collective security without military alliances and strengthening international security through regional and other co-operation’.³²⁷ The Ad Hoc Committee on the Indian Ocean was established in 1972 to study the implications of Resolution 2832 (1971).³²⁸ However, these efforts did not stop the steady escalation of the arms race and the competitive military presence in the region.³²⁹ On the contrary, the United States established a military base on the atoll of Diego Garcia, a British Indian Ocean Territory, in 1971 and maintains its presence to date.³³⁰ Due to the non-participation of many military powers (especially France, the United Kingdom and the United States), the Ad Hoc Committee was not been able to embark on any discussions on practical measures to implement the declaration of a ‘zone of peace’ in the Indian Ocean.³³¹ In recent years, given the changes in the political environment and security priorities in the region, the Ad Hoc Committee has discussed changing its mandate to address non-traditional maritime threats and challenges and continued to call for all permanent members of the Security Council and the major maritime users of the Indian Ocean to support its work.³³²

States have also adopted several regional treaties that, broadly stated, prohibit the testing, use, manufacture, production or acquisition of nuclear weapons through establishing nuclear-free zones and nuclear weapon–free zones covering parts of Latin America and the Caribbean, the South Pacific, Southeast Asia, Africa and Central Asia.³³³ For example, in the wake of the Cuban Missile Crisis in 1967, twenty-one Latin American States signed the multilateral Treaty for the Prohibition of Nuclear Weapons in Latin America (Treaty of Tlatelolco).³³⁴ All State parties undertake the obligation to prohibit and prevent in their respective territories, including the territorial sea, the testing, use, manufacture, production, acquisition or any form of possession by any means whatsoever of any nuclear weapons.³³⁵ Through Additional Protocol II, all five nuclear weapon States have committed themselves to respect the status of the nuclear-free zone and not use or threaten to use nuclear weapons against any State parties to the Treaty of Tlatelolco.³³⁶ This Treaty created the first nuclear weapon–free zone, which promoted the development of nuclear non-proliferation within this region and beyond, and served as a model for four other nuclear weapon–free zones in the South Pacific (1985), Southeast Asia (1995), Africa (1996) and Central Asia (2006).³³⁷ These zones have been recognised as contributing to ‘the security of members of such zones, to the prevention of the proliferation of nuclear weapons and to the goals of general and complete disarmament’.³³⁸

In summary, States’ efforts to regulate military activities at the international level are limited to establishing guidelines to prevent misunderstandings and promote co-operation, and the only agreed prohibition is with regard to the use of nuclear weapons on a regional basis that are largely restricted to areas under the sovereignty of the contracting parties. This confirms that not only is there no general prohibition on conducting military activities in the EEZ under international law³³⁹ but also that States are unable to develop precise legal obligations to regulate such uses. In order to prevent further conflicts at sea, States must take further steps to build mutual trust, including the adoption of good practices for military activities at sea, especially in regions where such activities are most frequently challenged.

6.5 The Way Forward

States regularly conduct a wide range of military activities at sea to protect their respective security interests. The proposal to include coastal State security interests in the EEZ was raised but rejected during the Third Conference, as was the proposal to include military activities as a preserved freedom for all States. As a result, UNCLOS intentionally left military issues out of the EEZ regime. Moreover, the optional exceptions in the dispute settlement mechanism make it possible for States to exempt any disputes concerning military activities from compulsory adjudication. Given the absence of clear attribution of jurisdiction, the right to conduct an activity with military elements falls under the residual rights provisions in the EEZ and the resolution of associated conflicts following the formula contained in Article 59 and the general principles of attributing and exercising rights and duties in this sui generis regime.

Conflicts with regard to military activities in the EEZ need to be resolved on ‘the basis of equity and in the light of all the 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’.³⁴⁰ The formula provided by Article 59 gives no priority to either the coastal State or other States. According to the general rules of attributing rights and duties in the EEZ, it is recognised that the EEZ was established to reserve vital economic interests to the coastal States. Hence, when a military activity concerns economic interests, the priority is inevitably vested with the coastal State; when it is closely associated with the operation of ships or aircraft without impairing the coastal State’s economic interests, the priority is granted to the operating State.³⁴¹ According to the general rules of exercising co-existing rights in the EEZ, the operating State must ensure military activity is conducted for peaceful purpose only and must have due regard to the rights and obligations of other States.³⁴² As a result, most military activities are tolerated within the EEZ and only in limited circumstance may they be legally challenged. For example, the coastal State may challenge a foreign military activity in its EEZ if it harms its sovereign rights to natural resources, whereas a non-coastal State may challenge the coastal State’s military activity if it unduly impedes its exercise of the freedoms of navigation or overflight.

The international legal system, including the law of the sea, develops in parallel with the changing demands of States. There are certain developments in the international arena that may influence the law on military uses of the sea. The first is the changing balance of power among States in the international arena over the last half century. Fundamentally, the rules of military uses of ocean space serve the military interests of the States that have the capability to utilise them.³⁴³ Emerging maritime States such as China, India and Brazil, which had previously strongly opposed and challenged these rules, have now gained the capability to use them. For example, the Chinese navy started to conduct military intelligence collection operations in the EEZ of the United States in 2012, and is in the process of expanding its global presence and influence.³⁴⁴ As these emerging States put increasing emphasis on their security interests at sea, they face the dilemma of restricting foreign military activities in the adjacent area of their coast on the one hand while seeking free and open access to other States’ EEZs for military purposes on the other.

Secondly, there has been an international movement of disarmament and non-proliferation of nuclear weapons, and the promotion of confidence-building measures to facilitate collaboration among States rather than reinforcing their separation, showing the universal need for peace management and demilitarisation of the ocean.³⁴⁵ However, the momentum built after the Cold War is under increasing pressure with the breakout of the war between the Russian Federation and Ukraine, the growing assentation of the Democratic People’s Republic of Korea, as well as the mounting tension between China and the United States in the South China Sea and the Strait of and Taiwan.

Thirdly, military forces have been given increasingly diverse functions at sea, including law enforcement, disaster relief assistance, escorting civilian vessels through dangerous areas and engaging in international co-operation programmes in foreign EEZs.³⁴⁶ While these activities will increase the presence of military forces in foreign EEZs, they may not necessarily cause tension with the coastal States, since they primarily have a civilian purpose.

States will continue to use the EEZ for military purposes despite different interpretations and practices on its legality. It is in the interests of all States to find a balance between maximising their individual maritime rights and jurisdiction in adjacent maritime areas and maintaining the common interest of all States to use the multi-functional EEZ.³⁴⁷ Subject to observing the peaceful purpose requirement, States could avoid conflicts if both sides obeyed the mutual due regard obligation in good faith and refrained from provoking activities that raise tensions with concerned States. For many of the coastal States that frequently challenge foreign military activities in their EEZs, which challenges are determined from a pure coastal State perspective, might gradually change when their navies are capable of conducting the same activities in a foreign EEZ.

Given the political sensitivity of military activities and the lack of clear legal framework, States will maintain different interpretations of the legitimacy of certain military activities in a given situation. Further, States should not take an all-or-nothing approach, whereby all military activities are either subject to the prior consent of the coastal State or subject to an absolute right of all States without any form of prior notification and consultation with the coastal State.³⁴⁸ This is an approach that both the rules to attribute residual rights and the reciprocal due regard obligations were apparently designed to prevent. To avert destabilising incidents, it is important for States to take the necessary measures to improve mutual understanding and build trust and confidence in order to increase stability, international peace and security at sea.

7 Maritime Security

Security interests at sea have traditionally related to military interests and naval power.¹ While this remains fundamental to the security of States, there is an increasing urgency to address other diverse security threats in and from the maritime domain by non-State actors.² Non-military or non-traditional maritime security goes back to early maritime history under the rubrics of piracy and barratry, but now includes illegal immigrants; maritime terrorism; people, weapon and drug trafficking; information security; and environmental security, among others.³

The right to protect maritime security is not explicitly included in the exclusive economic zone (EEZ) regime, albeit the United Nations Convention on the Law of the Sea (UNCLOS) addresses the specific threats to maritime security in some way or another.⁴ From the perspective of resolving conflicts regarding maritime security interests, based on the criteria provided in Article 59 and the general rules of attributing rights and duties in the EEZ, States could assert jurisdiction over activities that are related to their endowed rights or freedoms in this sui generis zone, or are otherwise provided by international instruments. The claims of jurisdiction over maritime security in the EEZ by different States often overlap and sometimes compete with one another. This is because States have both shared interests in maintaining the security of navigation and other communication rights, as well as competing interests in protecting their respective priorities. From the perspective of exercising the right to protect maritime security interests, the general rules of exercising co-existing rights and duties continue to apply with regard to measures to address threats to maritime security. In the case where different States share concurrent jurisdiction over certain threats to maritime security, they are required to respect each other’s rights and duties and are expected to cooperate to promote mutual security.

This chapter examines the current and emerging State practice in respect of preventing and combatting maritime security threats, it discusses the respective interests involved in attributing specific rights and jurisdiction and explores the rules for States in exercising them. It is divided into four sections. Section 7.1 discusses the concept of maritime security and the security interests as shown in the EEZ. The protection of maritime security in the EEZ refers to the right of States to address various threats to their legitimate rights and interests as recognised in this zone. Section 7.2 reviews the current international legal framework for combatting specific threats to maritime security. In the attribution of jurisdiction, it remains the flag State that has exclusive jurisdiction over vessels flying its flag, but other States share concurrent jurisdiction over certain international crimes or have been granted authorisation in international agreements to deal with such threats. Section 7.3 explores the implementation by coastal States of measures, including self-help measures, to protect their maritime security interests in the EEZ. There are limited mechanisms under the current international legal framework for the coastal State to effectively combat imminent threats to maritime security in its EEZ, which are often of a transnational nature. Section 7.4 examines the regional and international efforts to combat threats to maritime security and discusses an emerging practice of protecting collective security interests to promote collaboration between States to meet the jurisdiction gap.

7.1 The Concept of Maritime Security

7.1.1 Defining Maritime Security

The very word ‘security’ is a commonly used term in international relations that does not have a clear definition.⁵ Although it may have different meanings in different contexts, ‘security’ may simply be understood as an emotive term referring to ‘a sense of safety and hence freedom from fear’.⁶ Security in the maritime context is closely linked with what may be called ‘territorial security’, indicating that activities at sea may impinge on actions taken on land.⁷ Maritime security refers to a condition in which the maritime rights and interests of a State, recognised by international law, are free from harm or danger from the threat of direct attack and other crimes at sea.⁸ Following the decrease in direct military confrontations after the Second World War and the expansion of the security agenda in the twenty-first century, the term ‘maritime security’ is often used to describe the non-military dimension of security at sea, namely counter-piracy, counter-terrorism, all sorts of counter-trafficking activities and other crimes at sea.⁹

Maritime security is often refered to as a buzzword that enables international cooperation on actions absent a consensus on its definition.¹⁰ As such, maritime security could be analysed through its relations to others terms, the aspects of security of a particular State and how such threats to security have been addressed in practice.¹¹ Such a conceptual framework proposes to analyse specific threats to a particular State’s maritime security based on its relations with national security, economic development, the marine environment and human resilience.¹² This framework analysis methodology concurs with the approach adopted in the 2008 United Nations Secretary-General’s Report on Oceans and the Law of the Sea (2008 UN SG Report) and the approaches taken by many States to define their maritime security strategies.

The 2008 UN SG Report, recognising that there is no universally accepted definition of the concept of maritime security and that it can only be analysed in relation to the context and users, identified seven specific activities that are commonly perceived as threats to maritime security.¹³ The seven categories of activities include piracy and armed robbery against ships; terrorist attacks on vessels, offshore installations and the people and property on board; illicit trafficking in arms and weapons of mass destruction (WMD); illicit trafficking of drugs and psychotropic substances; smuggling and human trafficking; illegal, unreported and unregulated (IUU) fishing; and intentional and unlawful harm to the marine environment.¹⁴

Another comprehensive example is the 2014 European Union Maritime Security Strategy (EUMSS), which conceptualises maritime security as ‘a state of affairs of the global maritime domain, in which international law and national law are enforced, freedom of navigation is guaranteed and citizens, infrastructure, transport, the environment and marine resources are protected’.¹⁵ EUMSS further defines the strategic maritime security interests of the European Union and its Member States, and then identifies a list of risks and threats to those interests, before articulating how to strengthen the responses to such risks and threats.¹⁶ In addition to the seven specific activities identified in the 2008 UN SG Report, EUMSS’s list includes the threat or use of force, maritime disputes, threats to freedom of navigation, natural or human-made disasters including climate change, and illegal pillage of archaeological objects.¹⁷

Both lists cover various threats to the safety of navigation, national defense strategies, the marine environment, law enforcement activities, fishing and other maritime issues, but this list is not exhaustive. Other harmful acts occurring at sea may also threaten the security of a State’s territory, economy, environment and society. For example, with the development of operational technology and automatic vessels, cyber security is a growing concern of maritime security.¹⁸ Cyber operations could directly target the vessel or network systems within a coastal State, or cyber means could be used to facilitate threats to maritime security.¹⁹ The importance of submarine cables and pipelines to international communications and energy supply may warrant further review of the effectiveness of regulations concerning potential threats to the operation and protection of cables and pipelines lying on the ocean floor.²⁰

To discuss maritime security in the EEZ, it is important to first identify which State is the right holder, the security interests of the State that need to be protected and then the means to address existing or potential threats to these interests. Since the Cold War, the security paradigm has undergone a shift from conventional and military interests to non-conventional and non-military interests.²¹ Security interests have expanded to include political, economic, societal and ecological concerns that focus on development rights and go beyond the basic needs of survival.²² As a result, threats to maritime security extend to any events or processes that lead to significant damage to the rights and interests of the coastal State as well as other user States.

7.1.2 Maritime Security in the EEZ

UNCLOS provides for the peaceful use of the sea by setting out a delicately balanced legal framework to accommodate the maritime activities of States.²³ However, there is no provision in UNCLOS that has particular relevance for assessing maritime security in general in the EEZ. Commonly perceived threats to maritime security, including piracy, terrorism, transnational crimes, marine pollution and marine resource management, are all correlative to the EEZ. Therefore, within the EEZ, any State whose legitimate interests are threatened is of relevance when addressing threats to maritime security.

From the perspective of threats to maritime security, there are two sets of States’ interests to be protected in the EEZ. On the one hand, all States share a collective interest in promoting the safety of navigation, securing the unobstructed transportation of goods and passengers, improving the quality of the marine environment, preventing crimes at sea and maintaining the sustainability of marine resources.²⁴ All these collective interests are the concern of maritime user States in general. States that undertakes activities in the EEZ of another State have the right to ensure that their nationals or entities are not threatened or harmed. On the other hand, the coastal State has an individual interest in ensuring that its adjacent sea area is not used in a way that could jeopardise its territorial integrity or political independence, or endanger its rights or jurisdiction in the EEZ as recognised by international law.

Protecting lawful maritime interests from imminent threats is different from asserting a special security right in the EEZ. The attempt to assert such a right beyond the territorial sea was rejected by the International Law Commission (ILC) in 1956, where

[i]t considered that the extreme vagueness of the term “security” would open the way for abuses and that the granting of such rights was not necessary. … In so far as measures of self-defence against an imminent and direct threat to the security of the State are concerned, the Commission refers to the general principles of international law and the Charter of the United Nations.²⁵

By excluding security interests in the EEZ, it avoided granting the coastal State unbridled discretion, as its determination of a security threat could be unilateral and subjective. This statement did not preclude the coastal State from protecting its security interests from specific threats, which could be addressed according to the rules of general international law.

In addition, protecting non-traditional maritime security interests in the EEZ is different from the practice, as has been used during armed conflicts at sea, of asserting various maritime security zones and maritime exclusion zones.²⁶ A security/exclusion zone,

also referred to as a military area, barred area, war zone, or operational zone, is an area of water and superjacent air space in which a party to an armed conflict purports to exercise control and to which it denies access to ships and aircraft without permission.²⁷

It explicitly interferes with the freedom of navigation and overflight of other States. The non-traditional security interests in the EEZ relate to the protection of the normal rights of transit and economic exploitation. Moreover, within a security/exclusion zone, the primary responsibility for maintaining security rests with navies. Protecting non-traditional maritime security (in which not only shipping but the entire maritime system is at risk) involves a collective effort of multiple agencies, such as coast guards, marine police forces, customs and immigration organisations, intelligence agencies, port authorities, other law enforcement authorities and commercial entities throughout the maritime sector.²⁸

Therefore, combatting threats to maritime security in the EEZ refers to the protection of navigation, overflight, economic exploration and exploitation, the marine environment and other lawful uses from piracy, terrorist acts and other international crimes at sea, in which all States’ interests are correlated. The right to address these threats to maritime security, however, is limited based on the legal framework provided by UNCLOS and other international instruments. In addition, States may take significantly different positions with regards to threat perception, the seriousness of a particular threat and the countermeasures necessary to address it. To effectively prevent and combat threats to maritime security in the EEZ, States are expected to exercise their rights in good faith and with due regard to other States’ interests, and to cooperate and coordinate with respect to threats that endanger the collective interests of all maritime user States.

7.2 Legal Framework to Address Maritime Security Threats

This section provides a brief overview of existing international law that applies to the different threats to maritime security in the EEZ. At the outset of this chapter, the meaning of maritime security was posited as a condition in which the maritime rights and interests of a State, in the context of national security, economic development, the marine environment and human resilience, are free from harm or danger from threats at sea. The most commonly addressed harmful acts are those identified by the 2008 UNSG’s Report. Given the extensive literature on these threats, definition of various terms, the factual situation or the level of threats posed by these threats in different regions will not be discussed in detail here. Rather, the focus is on identifying the key international instruments that address these threats, and discussing the attribution of jurisdiction between States. A more comprehensive list of relevant international instruments is illustrated in the Annex to this chapter (Table 7.1).

7.2.1 International Instruments and Marine Security Threats

The first category of threat is pirate activities that endanger the safety and welfare of seafarers, disrupt navigation and commerce, and cause financial losses to ship and cargo owners.²⁹ The international law of piracy developed gradually throughout the nineteenth century and was codified in Articles 14–22 of the 1958 High Seas Convention, and almost literally restated in Articles 100–107 and 110 of UNCLOS.³⁰ These provisions apply to the EEZ by reference of Article 58(2). Pirates are criminals subject to universal jurisdiction because their acts pose a threat to all States and their interests in the freedom of navigation.³¹ As pirates are outlawed, ships that are engaged in piratical activities are denied the protection of the flag State whereby any State may capture them on the high seas and in the EEZ and punish them.³² It is not only a ‘long established right’ but also a duty for States to ‘cooperate to the fullest possible extent in the repression of piracy’.³³

The second category of threat is terrorist acts that endanger the safety of seafarers, the security of ports, offshore facilities, the ship, the people and property on board and other maritime interests.³⁴ While the definition of terrorism, including in the maritime context, has never been free from controversy, there is an extensive body of law applicable to specific terrorist acts that threaten security at sea.³⁵ Unlike piracy that is under universal jurisdiction, the right to address a vessel suspected of terrorism is not permitted in the absence of the flag State’s consent.³⁶ A State other than the flag State, including a coastal State, may only assert the right for intervention to respond to maritime terrorism concerns based on the jurisdictional links provided by international conventions or bilateral agreements, or by the authorisation of the United Nations Security Council (UNSC).³⁷

The third category of threat is the illicit trafficking of arms and WMD, particularly for its interlinkage with other violence and crimes at sea.³⁸ There are several international instruments to suppress and regulate the illicit trafficking or transfer of certain arms and weapons, including through the maritime domain.³⁹ In addition to strengthening flag State and port State controls, States have also concluded bilateral agreements, including ship-boarding agreements, to provide a treaty basis for the right of visit of vessels reasonably suspected of being engaged in illicit trafficking of arms and WMD material.⁴⁰ However, the main challenge to addressing this threat is that there is no widespread consensus among States as to the inherent illegality of possession or trade in conventional arms and WMD material, particularly a common interpretation of the standards for import, export and transfer assessment.⁴¹

The forth category of threat is illicit trafficking in narcotic drugs and psychotropic substances. Approximately 70 per cent of illicit drugs seized are confiscated either during or after transportation by sea.⁴² The flag State has the primary obligation, as well as exclusive jurisdiction, to act against drug trafficking on board its vessels.⁴³ The authority available to States to act against a foreign-flagged vessel suspected of drug trafficking in the EEZ is limited, however. Despite calling for full cooperation between States to suppress drug trafficking on the high seas, UNCLOS fell short on granting States the right of visit over ships suspected of drug trafficking unless the ship is without nationality.⁴⁴ States subsequently adopted international conventions, regional and bilateral agreements to facilitate enforcement related to drug trafficking by sea, particularly with respect to requesting flag State consent to take appropriate measures against a suspected vessel.⁴⁵

The fifth category of threat is human trafficking and migrant smuggling, which usually entails considerable risk to human life and human rights, and poses serious challenges to border and immigration control.⁴⁶ The international legal framework that applies to such threats is multifaceted and includes international human rights law, refugee law, criminal law, immigration law and the law of the sea.⁴⁷ UNCLOS requires the flag State to exercise effective control over ships flying its flag, including taking appropriate measures to prevent criminal acts at sea. Subsequent international agreements have developed procedures for State parties to request authorisation from the flag State to board, search or take other actions against a vessel that is suspected of being engaged in the smuggling of persons.⁴⁸ Some academic literature and State practice treat human trafficking as a modern version of the traditional ‘slave trade’ or ‘practices similar to slavery’.⁴⁹ This interpretation would put human trafficking under the universal jurisdiction as recognised in UNCLOS, whereby every State has the right of visit for any vessel suspected of engaging in human trafficking on the high seas and in the EEZ.⁵⁰

The sixth category of threat is IUU fishing, which threatens marine biodiversity, food security and the social and economic development of the coastal State.⁵¹ Unlike the previous five types of threats, the coastal State is accorded explicit right and jurisdiction to enforce its laws relating to fisheries in the EEZ under UNCLOS.⁵² The greater challenge to the coastal State’s fishery jurisdiction concerns the conservation and management of highly migratory species and straddling stocks that are threatened by IUU fishing on the high seas.⁵³ There is still a reliance on the flag State, and increasingly the port State, to take the necessary actions to ensure the concerned vessel complies with the rules and legislation intended to protect living resources on the high seas.⁵⁴

The seventh category of threat is the intentional and unlawful damage to the marine environment that may harm marine life, damage marine habitats and the ecosystem and affect the social and economic interests of the coastal State.⁵⁵ While it remains open how to assess which intentional breach of environmental law may amount to a threat to maritime security, the coastal State has enforcement jurisdiction over vessel-source pollution and dumping in the EEZ.⁵⁶ However, the coastal State’s enforcement jurisdiction is limited to giving effect to generally accepted international rules and standards, and remains supplementary to the exclusive flag State jurisdiction. Moreover, the damages to the marine environment could arise beyond the scope of vessel-source pollution. For example, the sea could be used to traffick protected species of wild marine fauna and flora, which contributes to the extinction of endangered marine species.⁵⁷ There has also been increasing concern over sea shipments of highly radioactive or other ultra-hazardous materials and the risk they pose of causing irreversible damage to the marine environment.⁵⁸ Given the nexus between climate change impacts, ocean acidification, marine life, social vulnerabilities and the occurrence of maritime criminality, there is a growing recognition of a link between climate change effects and threats to maritime security.⁵⁹

7.2.2 Remarks on Attribution of Jurisdiction

In sum, States have established a comprehensive legal framework to address specific threats to maritime security. However, the current international legal framework for preventing and combatting maritime security threats reveals an overwhelming reliance on exclusive flag State jurisdiction in areas beyond the territorial sea.⁶⁰ The nationality nexus remains the primary foundation for States to assert jurisdiction over unlawful acts at sea irrespective of where the activities took place. The role of the coastal State in the EEZ for combatting threats to maritime security has been effectively marginalised in most scenarios as it has been set against that of the flag State.⁶¹

From the coastal State’s perspective, there are two approaches to enhance the effectiveness of the maritime security international legal framework. First, the coastal State must maximise its opportunities to exercise jurisdiction, to the extent allowed under international law, over suspected offenders in order to protect its maritime security in the EEZ. Second, efforts should be made towards strengthening cooperation and coordination with flag States in responding to maritime security threats, both on bilateral and multilateral levels.

UNCLOS and other international conventions provide for the legislative and enforcement jurisdiction of coastal States with respect to some specific threats to maritime security such as piracy, unlawful acts against the safety of navigation, IUU fishing and vessel-source pollution. Coastal States need to take actions to exercise such jurisdiction. Using piracy as an example, international law allows for States to exercise universal jurisdiction but does not demand it.⁶² It is up to individual States to domesticise piracy acts under their national laws, exercise enforcement jurisdiction and decide whether to put suspects on trial, to extradite them for prosecution by another State, or not to undertake judicial procedures at all.⁶³ It can be observed that many coastal States have not exercised the legislative jurisdiction to criminalise piracy under their domestic law, let alone exercise enforcement jurisdiction over suspected pirate ships.⁶⁴

The coastal State may also seek consent from the flag State, through multilateral and bilateral agreements, to exercise concurrent jurisdiction over certain illegal activities in its EEZ, such as smuggling of drugs and trafficking of arms or people. When considering such a request for consent, the flag State should be mindful of its due regard obligation to the rights and duties of the coastal State in the EEZ.⁶⁵ In other words, the flag State must recognise the coastal State’s interests in combatting various maritime security threats and act with due diligence when considering the coastal State’s request for boarding suspect vessels flying its flag.

Therefore, both the flag State and the coastal State may exercise enforcement jurisdiction over specific threats to maritime security by officials or by warships and military aircraft, or other entities clearly marked and identified as being on government service in the EEZ.⁶⁶ However, States maintain different positions on whether a foreign State can exercise enforcement jurisdiction in the EEZ of a coastal State and what measures the operating State may take.⁶⁷ Besides obeying the general obligations of peaceful purposes and due regard for exercising a co-existing right, the operating State must follow the safeguard measures that are part of law enforcement activities, principally in relation to the use of force.⁶⁸

Many international conventions and non-binding resolutions or guidelines adopted by major international bodies call on all States to cooperate and coordinate to prevent and combat maritime security threats. Such cooperation and coordination should extend on two levels. The first level is between different States, including bilateral cooperation between a coastal State and a flag State, and recognises that threats to maritime security that occurred in a particular EEZ can cause damage to multilateral interest holders. The second level recognises the interconnections between different unlawful activities, such as illicit trafficking of arms to support pirate or terrorist acts, which requires that different enforcement agencies coordinate their responses and actions. In the end, it is in everyone’s best interest that the relevant States explore the necessary measures to maintain a secure ocean space for all user States and actors.

7.3 Coastal State Implementation under the Current Legal Framework

The recognition of the coastal State’s sovereign rights in the EEZ gives it broad capacity to regulate the economic activities taking place within its EEZ but does not award it jurisdiction over security interests in general. The coastal State’s capability to defend and protect its recognised interests in the EEZ must be exercised in line with the rights and jurisdiction to which they attach. Under the current legal framework, the coastal State can strengthen its ability to combat maritime security threats through two types of actions: enhanced awareness of the situation within the maritime domain through gaining information of the sea area, and improved response capacity, including exercise enforcement jurisdiction.

7.3.1 Maritime Domain Awareness

A critical element for the coastal State in protecting maritime security is to obtain the necessary information at its disposal to take preventative and responsive actions. In the aftermath of 9/11, States have increasingly demanded comprehensive knowledge of their coastal maritime areas, especially with regard to information on vessels, their cargoes and crews for the protection of their maritime security,⁶⁹ as well as for the purposes of search and rescue and disaster relief. This trend has led to the development of a policy framework of maritime domain awareness (MDA).

The United States considers the secure use of the world ocean a fundamental element of its territorial safety and economic security. It established a Maritime Security Policy Coordinating Committee to oversee the development of the National Strategy for Maritime Security and eight supporting implementation plans to better integrate efforts to address maritime threats.⁷⁰ It redefined the concept of MDA, which emerged from the US Coast Guard in the late 1990s, in the National Plan to Achieve MDA as ‘the effective understanding of anything associated with the maritime domain that could impact the security, safety, economy, or environment of the United States’.⁷¹ This concept is further exemplified by the definition of maritime domain, which comprises ‘all areas and things of, on, under, relating to, adjacent to, or bordering on a sea, ocean, or other navigable waterway, including all maritime related activities, infrastructure, people, cargo, and vessels and other conveyances’.⁷² Thus, the United States seeks to obtain knowledge of all activities occurring at sea, including all maritime areas under its jurisdiction, and arguably beyond.

Other countries and international organisations have further developed the policy of MDA with similar definitions and formats.⁷³ Australia, for example, adopted the same concept as the United States but defines its maritime domain as ‘[t]he series of jurisdictional zones that surrounds the coast of a State. It includes territorial seas and the EEZ’.⁷⁴ Canada considers MDA to mean

having true and timely information about everything on, under, related to, adjacent to, or bordering a sea, ocean or other navigable waterway. This includes all related activities, infrastructure, people, cargo, vessels, or other means of transport. For marine security, it means being aware of anything in the marine domain that could threaten Canada’s national security.⁷⁵

The International Civil Aviation Organization (ICAO) and the International Maritime Organization (IMO) also accepted the US definition of MDA for the purpose of search-and-rescue operations.⁷⁶

MDA is essentially an enabler for the formulation and implementation of maritime policy. In practice, achieving MDA depends on three steps. First, collecting a comprehensive set of data of all relevant activities at sea from all agencies, partners and stakeholders; second, analysing the data and information in such a way to identify trends and anomalies, including potential threats; and third, reacting in a timely manner to address identified suspected activities, including law enforcement activities.⁷⁷

One critical component to achieving MDA is to obtain timely and adequate information within the respective maritime domain. Facilitating data collection and information sharing for the purpose of MDA requires cooperation and coordination not only among domestic government departments but also with the private sector, as well as regional and international partners.⁷⁸ The United States, for example, established a National MDA Implementation Team to provide a forum for inter-agency coordination of each MDA implementation action to ensure they are consistent with other component plans of the National Strategy for Maritime Security.⁷⁹ At the international level, the United States promotes global maritime partnerships to expand MDA capabilities globally and enhance regional enforcement capacities through information sharing, cooperation and capacity-building.⁸⁰

The coastal State needs to establish a comprehensive MDA policy to achieve maritime security, including in the EEZ. The coastal State should utilise various information sources and technologies to seek information about activities in its maritime domain, to coordinate with relevant partners and international organisations to share information, and to reach agreements with major flag States to promote accountability.⁸¹

7.3.2 Means to Collect Information

It is essential for coastal States to have accurate and sufficient information at their disposal in order to take proper measures to address maritime security threats.⁸² UNCLOS and other international instruments provide the coastal State with a number of tools and channels to collect pertinent information on foreign vessels navigating within the EEZ. Moreover, some coastal States take unilateral actions to require data of the vessels traversing their EEZs, with or without entering their ports or other offshore terminals.

Requesting information to monitor the movement of vessels is by no means a new phenomenon in the maritime field. The coastal State may adopt, under the auspice of IMO, several commonly used systems to monitor vessels in the EEZ for safety and security purposes.

Where the volume of traffic, level of navigational risk or environmental considerations justify, the coastal States may adopt, through IMO, ship reporting systems in a clearly defined area.⁸³ A reporting system may be mandatory for all vessels, or certain types of vessels, or vessels with certain cargoes.⁸⁴ On entering such areas, vessels subject to reporting are required to provide information essential to achieving the objectives of the reporting system, including the vessel’s name, call sign, IMO identification number, position and other supplementary information, if appropriately requested.⁸⁵ It is also possible, if the circumstances justify, for the coastal State to adopt such reporting systems through IMO as a special mandatory measure for the prevention of pollution from vessels within a special area of its EEZ.⁸⁶

In an amendment to Chapter V of SOLAS in 2000, ‘ships of 300 gross tonnage and upwards engaged on international voyages and cargo ships of 500 gross tonnage and upwards not engaged on international voyages and passenger ships irrespective of size’ were required to be fitted with an automatic identification system (AIS) no later than 31 December 2004.⁸⁷ AIS is a shipboard very high-frequency (VHF) radio broadcast system, standardised by the International Telecommunication Union, that allows automatic exchange of navigation and other vessel information between appropriately equipped aircraft or shore stations and other vessels.⁸⁸ The information provided by AIS includes the ship’s identity, type, position, course, speed, navigational status and other voyage- and safety-related information.⁸⁹ Although AIS was initially a tool to promote navigational safety, it also facilitates the coastal State’s ability to identify vessels navigating in adjacent areas, assist in tracking target vessels and enhance situation awareness.⁹⁰

There have been growing concerns over the security of AIS data due to its open access by all appropriately equipped transponders and publication on the World Wide Web, both of which may be exploited by organised crime.⁹¹ Another limitation is that the typical range of AIS transmissions at sea is nominally 20 NM, with further coverage dependent on the use of repeater stations.⁹² Since 2008, IMO has been considering the use of improved satellite detection of AIS in order to continue tracking vessels when they are out of range of coastal stations.⁹³ Norway, for instance, launched its first satellite AIS in 2010 and has full operational capability with an unprecedented ability to monitor ship traffic on a global scale.⁹⁴

Another ship monitoring system is the satellite-based Long-Range Identification and Tracking (LRIT) System, adopted in a 2006 amendment to Chapter V of SOLAS, which enables the global identification and tracking of ships.⁹⁵ LRIT applies to passenger ships and cargo ships (including high-speed craft) of and above 300 gross tonnage that are engaged on international voyages and mobile offshore drilling units.⁹⁶ Ships that have been fitted with AIS and operate exclusively within ‘an area within the radio telephone coverage of at least one VHF coast station in which continuous DSC (Digital Selective Calling) alerting is available’ are exempted from this regulation.⁹⁷ The LRIT system consists of

the shipborne LRIT information transmitting equipment, the Communications Service Provider(s), the Application Service Provider(s), LRIT Data Center(s), including any related Vessel Monitoring System(s), the LRIT Data Distribution Plan and the International LRIT Data Exchange.⁹⁸

Subject vessels are required to automatically transmit their identity, position (latitude and longitude) and the date and time of the position provided.⁹⁹

Each contracting State must nominate a data centre to which ships flying its flag may transmit LRIT information, and all contracting governments may request the information through the established national or participating regional or cooperative LRIT data centres using the International LRIT Data Exchange system.¹⁰⁰ A coastal State may receive the information about foreign ships under two circumstances: first, when the ships have communicated an intent to enter a port facility or a place under its jurisdiction irrespective of where such ships may be located; second, when the ships are navigating within a distance not exceeding 1,000 NM of its coast, provided that under both circumstances the ships are not located within the waters landward of the baselines of another contracting State.¹⁰¹ The LRIT operates under a private data centre that only releases the information about a specific vessel to a contracting government, who must bear all costs associated with any information it receives.¹⁰²

States may also adopt a specific ship monitoring system on a regional level. Member States of the European Union, Norway and Iceland established a vessel traffic monitoring and information system, SafeSeaNet, in 2002 to enhance the safety and efficiency of navigation and to improve the response of coastal States to potential threats to their maritime security.¹⁰³ SafeSeaNet requires all vessels of and above 300 gross tonnage bound for a port of participating States to notify the port authority with general information about the vessel, its voyage and persons on board at least 24 hours in advance, or at the time it leaves the previous port.¹⁰⁴ Vessels carrying dangerous or polluting goods, irrespective of their size, must notify the port authority at the latest at the moment of departure, giving detailed information of the cargo, as well as the foregoing general information.¹⁰⁵ Participating States are required to monitor and take all necessary and appropriate measures to ensure that all duly established maritime systems, including ship reporting systems, AIS, vessel traffic services, ships’ routeing systems and voyage data recorder systems, are being observed.¹⁰⁶ Participating States may also exchange computerised data on the ship and the dangerous or polluting goods on board for the purpose of maritime security and the protection of the marine environment.¹⁰⁷

At the national level, Australia, with a total estimated coastline length of 59,681 kilometres, has been investing heavily to protect the civil maritime security, safety, economy and environment interests associated with Australia’s maritime domain.¹⁰⁸ It proposed a Maritime Identification Zone of up to 1,000 NM from its coast in 2004, which was reformulated to the Australian Maritime Identification System in 2005 following a torrent of criticism from neighbouring States.¹⁰⁹ After more than a decade of operation, the system was consolidated into the Modernised Australian Ship Tracking and Reporting System (MASTREP), which came into force in 2016.¹¹⁰ MASTREP implements Australia’s treaty obligations under both SOLAS and the International Convention on Maritime Search and Rescue that apply to the Australian search and rescue region, including the high seas.¹¹¹ Within the MASTREP area, position reports are mandatory for all Australian-flagged vessels and foreign vessels that are transiting between Australian ports.¹¹² All vessels navigating within the MASTREP area are required to report a marine incident, and to submit special reports involving the carriage of dangerous goods, harmful substances and marine pollutants as set out by IMO regulations.¹¹³

Similar to the establishment of maritime identification zones, some coastal States have adopted an air defence identification zone (ADIZ) in the airspace over their EEZs. Initially, an ADIZ was a military concept adopted by the United States after the Second World War and was reconsidered after the 9/11 attack when threats from the air re-emerged as a great concern.¹¹⁴ The ICAO defines an ADIZ as ‘[s]pecial designated airspace of defined dimensions within which aircraft are required to comply with special identification and/or reporting procedures additional to those related to the provision of air traffic services’.¹¹⁵ Currently, more than twenty States have established an ADIZ beyond the limit of the territorial sea extending to various breadths, including Bangladesh, Canada, China, India, Japan, Pakistan, the Philippines, the United Kingdom and the United States.¹¹⁶ The regulations adopted in these identification zones vary from State to State, but most include a request for information to identify the aircraft for security purposes.¹¹⁷ Although there is no explicit authorisation for the establishment of the ADIZ over the airspace beyond the territorial sea under UNCLOS, such practice is not necessarily inconsistent with existing international law.¹¹⁸ There is controversy around what type of information the coastal State is seeking and whether the subject aircraft is bound for the territorial airspace of the coastal State.¹¹⁹

These tools and channels to collect information about ships and aircraft in the EEZ, although mainly developed for navigation safety and search and rescue purposes, have the potential to provide valuable knowledge to enhance MDA and protect maritime security. The coastal State is encouraged to use these available tools and channels to enhance maritime awareness for its security purposes in accordance with international law. It is worth noting that, although coastal States are entitled to request information of foreign vessels entering their EEZs, they are not entitled to any additional direct enforcement jurisdiction over non-compliance with such requests except for notifying the flag State, and may take action when the ship enters its port.

7.3.3 Law Enforcement, Right of Hot Pursuit and Right of Visit

The basic principle of the high seas freedoms remains that the vessels sail under the exclusive jurisdiction of the flag State without interruption, with the exceptions conferred by UNCLOS and general international law that other States share legislative or/and enforcement jurisdiction under certain circumstances.¹²⁰ The coastal State has the right to prescribe and enforce certain laws and regulations for foreign vessels in the EEZ, supported by the right of hot pursuit.¹²¹ The right of visit is an exceptional power of all States that challenges the exclusive jurisdiction of the flag State for certain international crimes on the high seas and in the EEZ for the benefit of the international community.¹²²

The coastal State’s authority to carry out law enforcement power rests in its exercise of sovereign rights and jurisdiction over the EEZ.¹²³ The coastal State has the power, in exercising its sovereign rights, to ‘explore, exploit, conserve and manage the living resourses’ in the EEZ, to ‘take such measures, including boarding, inspection, arrest and judicial proceedings, as may be necessary to ensure compliance’ with its laws.¹²⁴ Such enforcement jurisdiction could apply to suspected terrorist acts, IUU fishing¹²⁵ and other criminal matters affecting the economic resources and economic exploitation of the zone. Where there are clear grounds for believing that a vessel navigating in the EEZ has intentionally polluted the marine environment, causing major damage or threat of major damage to the environment or its resources, the coastal State may take enforcement measures against the suspected vessel.¹²⁶ Although the coastal State has not been given explicit enforcement jurisdiction over non-living resources, artificial islands, installations and structures, it could be argued that such a right is implicit in connection with the prevention and punishment of violations of the law.¹²⁷ Hence, if a coastal vessel or offshore infrastructure was under violent attack in the EEZ, such as from pirates, terrorists or smugglers, the coastal State can take enforcement measures to protect its maritime security based on protective jurisdiction.¹²⁸

Where the coastal State has good reason to believe that a foreign vessel, when within the EEZ, has violated that State’s applicable laws and regulations, it may continue pursuit of the vessel outside the EEZ if the vessel ignored the visual or auditory signal to stop and tried to escape.¹²⁹ The requirement of a signal to stop must be interpreted in light of modern use of technology to include radio broadcast, VHF messages and potentially maritime autonomous vehicles.¹³⁰ Such pursuit must be commenced when the vessel or one of its boats is within the EEZ of the pursuing State, may only be continued outside the EEZ if the pursuit has not been interrupted and ends as the vessel enters the territorial sea of its flag State or a third State.¹³¹ State practice appears to support the idea that hot pursuit by relay may be conducted by multiple vessels of the coastal State, and may even be continued or concluded with the assistance of vessels of a third State.¹³² The vessel under pursuit may be stopped, arrested and escorted to a port of the coastal State for inquiries and proceedings if the circumstances justify.¹³³ The right of hot pursuit is deemed necessary to enable coastal jurisdiction to be efficiently exercised.¹³⁴

UNCLOS also provides the coastal State the right of visit over foreign merchant vessels in the EEZ if they are suspected of being engaged in piracy, the slave trade, unauthorised broadcasting or being without nationality.¹³⁵ Under these circumstances, the coastal State may proceed to verify the vessel’s flag, and if suspicion remains, it may proceed to a further examination on board the vessel.¹³⁶ As technology advances, it has been argued that the right of visit could be carried out virtually using cyber means.¹³⁷ However, the right of visit is not automatically followed by the right of seizure.¹³⁸ The coastal State is authorised to seize the foreign vessel only in cases of piracy based on universal jurisdiction, and unauthorised broadcasting if that State has a connection with the person or ship or is affected by such activity.¹³⁹ In the other three circumstances, UNCLOS is silent on seizure. In most cases, the coastal State that has conducted an onboard examination and found incriminating evidence may only report the facts to the flag State and leave it in the latter’s hands to exercise enforcement jurisdiction.¹⁴⁰

In respect of addressing maritime security threats, there are several lex specialis treaties providing the coastal State the jurisdiction, or the right to request authorisation, to interdict a suspect foreign vessel in its EEZ. For example, a coastal State that is a party to the SUA Convention and Protocol may claim concurrent jurisdiction over a number of unlawful acts based on the nationality of the victim, the nationality or the habitual residence of the perpetrator, when it is the target of the act, or when the perpetrator is present within its territorial jurisdiction.¹⁴¹ Under the 1988 UN Narcotics Convention, the 2000 Migrants Smuggling Protocol and the 2016 IMO Interim Measures, a contracting State with reasonable suspicions that the foreign vessel is engaged in a violation may request permission from the flag State to board, search the suspected vessel and take appropriate actions.¹⁴²

Moreover, flag State consent ship interdiction is widely used in WMD-related non-proliferation operations.¹⁴³ The most notable example is the Proliferation Security Initiative (PSI) launched by the United States in 2003.¹⁴⁴ States participating in PSI are required to take actions to board and search vessels flying their flag in ‘their internal waters or territorial seas, or areas beyond the territorial seas of any other State’ that are suspected of carrying WMD, and to consider authorising other States to board, search and seize their vessels with reasonable suspicion.¹⁴⁵ By 2024, PSI had developed into a global security regime with 113 participating countries on six continents.¹⁴⁶ PSI is further strengthened by eleven bilateral ship boarding agreements, under which either one of the parties can request the other to authorise the boarding, search and possible detention of the vessel and its cargo.¹⁴⁷ There are also practices in some bilateral treaties to arrange a ‘ship-rider’ on board the other party’s law enforcement vessel to provide on-the-spot consent to the interdiction of vessels flying its flag and to exercise the flag State’s enforcement jurisdiction.¹⁴⁸

The coastal State must not discriminate in form or in fact against foreign-flagged vessels and must respect safeguards measures when exercising enforcement jurisdiction.¹⁴⁹ When taking enforcement measures, the coastal State must ensure the safety and humane treatment of the persons on board, take due account of the need not to endanger the security of the vessel or its cargo, and not prejudice the commercial or legal interests of the flag State or any other interested parties.¹⁵⁰ In all circumstances, force must be avoided and may only be used in a way proportionate and necessary according to the specific circumstances.¹⁵¹ When using direct force, all efforts must be made to ensure that human life is not endangered, and the level and type of force must be proportionate to the targeted ship, where use of force with an intention to sink the vessel is not acceptable.¹⁵² Further, where the suspicions upon boarding prove to be unfounded or when the enforcement measures are proven unlawful or ‘exceed those reasonably required in the light of available information’, the coastal State shall be liable for damage or losses arising from such measures.¹⁵³

With respect to enforcement of fishery laws and pollution regulations, the coastal State should promptly release the arrested vessel and its crew upon the posting of bond, and take reasonable efforts to avoid unduly detaining or delaying the vessel.¹⁵⁴ The coastal State should only impose monetary penalties for these two types of violations by a foreign-flagged vessel, and should promptly notify the flag State of the actions taken.¹⁵⁵ Subject to justifications, the coastal State should suspend its proceedings to impose penalties in respect of pollution violations if the flag State takes action to impose penalties of the corresponding charges within six months.¹⁵⁶

Regardless of the imminent alleged threats coming from the sea, the international law of the sea offers limited means for the coastal State to achieve maritime security in the EEZ.¹⁵⁷ The collection of information is considered a passive activity, and it has limited enforcement jurisdiction over suspected activities by foreign-flagged vessels. The coastal State must be prepared to cooperate with the flag State in combatting, suppressing and investigating suspected threats at sea. In fact, when coping with multifaceted threats to maritime security, which have a strong transboundary influence, all States must take collaborative approaches to be effective and to reduce the risk of long-term or irreversible adverse effects on human life and the maritime environment.

7.4 International Efforts to Enhance Maritime Security

7.4.1 Maritime Security as Collective Security

The preamble of UNCLOS recognises that ‘the problems of ocean space are closely interrelated and need to be considered as a whole’ and that the legal framework ‘achieved in this Convention will contribute to the strengthening of peace, security, cooperation and friendly relations among all nations’.¹⁵⁸ Efforts to enhance maritime security in the EEZ not only protect the security interests of a specific coastal State but also contribute to the secure use of ocean space for all States. Consequently, as has been persuasively asserted by the UN Secretary-General, since ‘all States share in the benefits of safer and more secure oceans, they also share in the responsibility for addressing major threats and challenges to maritime security’.¹⁵⁹ The shared interests and responsibilities provide a platform for different States to cooperate to ensure that appropriate measures are taken to maintain a secure maritime environment.

The spirit of cooperation is particularly relevant between the coastal State and the flag State of a vessel suspected of engaging in unlawful activities in the EEZ. Under the maritime security threats scenario, conflicting interests between the coastal State and other States are minimised. As discussed earlier, there has been an increase in State practice to provide coastal States with the ability to monitor the movement of ships in their EEZs at the expense of the flag State relinquishing relevant information. The acknowledgement of the common interest in sharing information and providing concurrent jurisdiction is a reflection of ‘the collective concerns generated from the varied maritime security threats that are currently recognized’.¹⁶⁰

Maritime security is characterised by its complex and cross-cutting nature, comprising multiple different but often related threats and incorporating themes of law enforcement, criminal justice, economic development and environmental protection.¹⁶¹ This complexity implies that narrow or isolated responses to maritime security, such as one State addressing only one threat at a time, are unlikely to succeed and may even prove counterproductive.¹⁶² To achieve collective maritime security means that responses often need to take place across and outside the maritime boundaries of States, with cooperation among multiple stakeholders.¹⁶³

At the same time, maritime security concerns differ across States and regions. Some maritime security threats transcend maritime boundaries and hence are internationally shared, such as piracy and smuggling of drugs or WMD. Other issues, such as terrorist attacks or human trafficking, may be targeted to certain States or regions. Moreover, the level of priority attached to maritime security issues of the same State or region can vary widely at different times. Hence, individual States or regions may have unique and distinct security concerns that co-exist with collective maritime security, which gives them different perspectives when it comes to identifying priorities and allocating resources.¹⁶⁴

In addition, States have different enforcement competences that directly affect their ability to maintain effective jurisdiction over vessels flying their flag and provide adequate surveillance over the maritime domain under their jurisdiction. The cause of the threats to maritime security, especially piracy, terrorism, human smuggling and trafficking, may be rooted in severe domestic turmoil, poverty, infectious diseases and environmental degradation.¹⁶⁵ Affected States frequently lack the capability and resources to maintain order at sea, let alone the ability to implement maritime security measures. This lack of security often results in the disruption of marine activities that are needed in order to improve the domestic situation.¹⁶⁶ These factors feed into one another creating a deadly cycle that leaves the EEZ of these coastal States even more vulnerable.

Given the complexities of maritime security, the international community should adopt a multi-level cooperative framework to respond to various threats while taking into consideration three characteristics. First, threats to maritime security are often interconnected and interdependent of one another, so the responses should involve a range of stakeholders to enhance cooperation and coordination. Second, most maritime security issues need to be addressed with measures on land, which requires support and capacity-building for the affected States. Third, the cross-jurisdictional nature of most maritime security threats requires cooperation transcending maritime boundaries at various levels of governance.¹⁶⁷ To this end, States are expected to cooperate at both the global and regional levels to identify a common discourse and shared view regarding common threats, in particular to remedy the inadequacy of an individual State’s competence to address specific security concerns. International organisations, including the UN and IMO, and regional organisations, such as the African Union and the Association of Southeast Asian Nations (ASEAN), can play an important role in enhancing maritime security cooperation, particularly with respect to sharing information, resources and expertise needed for law enforcement activities and building capacity and mutual trust.¹⁶⁸

7.4.2 Operations under the Authorisation of the Security Council

Efforts to secure greater law enforcement powers for the coastal State in relation to maritime security threats beyond the territorial sea have largely been resisted because of the preference accorded to upholding exclusive flag State jurisdiction over vessels. Besides seeking flag State authorisation through international conventions and bilateral agreements, another critical source of rights for intervention to respond to certain imminent maritime security threats comes from the UNSC.¹⁶⁹ The role of the UNSC in the law of sea has significantly evolved since the end of the Cold War and again after the 9/11 terrorist attacks on the United States.¹⁷⁰ The UNSC has primary responsibility for the maintenance of international peace and security and it may authorise various enforcement actions to deal with breaches of the peace, threats to the peace or acts of aggression, with or without the use of armed force.¹⁷¹ These measures include sanctions, embargoes, demonstrations, blockades and other operations by air or sea forces of Member States, which may completely or partially interrupt sea communications.¹⁷²

Resolutions adopted by the UNSC to enforce prescribed measures are legally binding on the Member States of the UN under the collective security system.¹⁷³ Naval forces of Member States, on call from the UNSC, undertake to make available ‘armed forces, assistance, and facilities, including rights of passage’ to implement these peacekeeping operations at sea.¹⁷⁴ The relevant maritime operations carried out by Member States are primarily in relation to the enforcement of economic sanctions, arms and export embargos, preventing and combatting piracy or terrorism, and proliferation of WMD, where their warships and military aircraft are authorised to halt and inspect international shipping.¹⁷⁵

For example, the potential threat of the development or proliferation of illegal nuclear weapons and ballistic missiles by the Democratic People’s Republic of Korea (North Korea) has long been a serious concern of the UNSC.¹⁷⁶ The UNSC has repeatedly affirmed that the proliferation of nuclear, chemical and biological weapons and their means of delivery constitute a threat to international peace and security, and that the actions taken by North Korea pose a danger to ‘peace and stability in the region and beyond’.¹⁷⁷ Resolution 1874 (2009) called on all Member States to not only take action against their own flagged vessels, but also to ‘inspect vessels, with the consent of the flag State, on the high seas, if they have information that provides reasonable grounds to believe’ that the vessel was carrying prohibited cargo.¹⁷⁸ This effectively gives all States enforcement jurisdiction, with flag State consent, over suspected vessels engaged in illicit trafficking of nuclear, chemical and biological weapons and related materials in the EEZ. The UNSC authorisation of maritime interdiction of cargo vessels has been reinforced in subsequent resolutions and numerous Member States have submitted reports on their implementation of these measures.¹⁷⁹

Protracted internal conflict and the absence of an effective government since the early 1990s led to a situation where pirates could operate without hindrance in the waters around Somalia.¹⁸⁰ The situation continued to decline in the early 2000s, interrupting major shipping routes in the Western Indian Ocean, the Gulf of Aden and the Red Sea.¹⁸¹ The situation in and around Somalia was identified as ‘a threat to international peace and security in the region’ by the UNSC in Resolution 1816 (2008).¹⁸² The UNSC subsequently issued a series of ad hoc resolutions encouraging a package of measures for certain prescribed times aimed at repressing Somali piracy. The intention was to fill some of the gaps in the current international legal framework relating to piracy by expanding enforcement jurisdiction and encouraging cooperation among States to enhance their ability to combat Somali piracy. Naval vessels and military aircraft of Member States were encouraged to ‘increase and coordinate their efforts to deter acts of piracy and armed robbery at sea in cooperation with the Transitional Federal Government (TFG)’, and these vessels were authorised to ‘enter the territorial waters of Somalia’ for this purpose.¹⁸³

The international community responded by undertaking naval operations to deter pirates and to ensure the safety of sea lane communications and international navigation. These operations have been coordinated by the North Atlantic Treaty Organization (NATO) Operations Allied Protector and Ocean Shield, the EU Naval Force counter-piracy mission (Operation Atalanta) and the Combined Maritime Forces’ Combined Task Force 151, in addition to several countries that have deployed naval ships and military aircraft in the region to patrol and escort merchant ships.¹⁸⁴ As a means to tackle the enforcement challenges, all States and regional organisations fighting piracy off the coast of Somalia were invited to conclude ‘shiprider’ agreements with countries prepared to prosecute pirates, particularly regional States, in order to facilitate investigation and prosecution of those captured while undertaking suspected pirate attacks.¹⁸⁵ In addition, the UNSC resolutions repeatedly called for States to take domestic legislative measures to criminalise piracy and armed robbery at sea, and to prosecute captured or transferred suspected offenders.¹⁸⁶ These counter-piracy measures have been renewed on an annual basis since they were initially authorised in Resolutions 1846 (2008) and 1851 (2008).¹⁸⁷ Moreover, the UNSC collaborated with the African Union and the federal government of Somalia to establish and support the work of the African Union Mission in Somalia (AMISOM), which was established in 2007. AMISOM was reconfigured into the African Union Transition Mission in Somalia (ATMIS) in 2022 and takes a comprehensive approach to addressing the domestic challenges and building long-lasting peace and stability in Somalia.¹⁸⁸

Notably, although the powers endowed to the UNSC under Chapter VII of the UN Charter are ‘extremely far-reaching and subject to very few express limitations’,¹⁸⁹ its exercise of these powers in regard to both North Korea and Somalia have been rather cautious. In both cases, it was the determination that the specific situations constituted a threat to international peace and security in the region that triggered the prescription of enforcement authorisation from the UNSC.¹⁹⁰ When prescribing specific enforcement measures, the resolutions required the States exercising such measures to also obtain authorisation from the flag State when boarding suspected vessels or from the TFG for entering the territorial waters of Somalia. Hence, the UNSC authorisations do not alter the legal framework under UNCLOS and international law.

7.4.3 Collective Regional Approach to Maritime Security

A regional approach is a common theme in international relations that can promote beneficial cooperation under the framework of ‘collective self-reliance’ and provide institutional mechanisms in various fields for the development and growth of regional State entities, including for issues relating to regional security.¹⁹¹ Regional cooperation is also promoted in UNCLOS, principally in regard to the conservation of living resources, the protection of the marine environment, and the development and transfer of marine scientific technology.¹⁹² In practice, regional solutions have also been advocated as a possible solution to address threats to maritime security, in particular in relation to piracy.¹⁹³ Collective measures taken at a regional level would avoid the traditional jurisdictional competition between coastal States and other States in the EEZ and promote cooperation in sharing of information, building capacity and conducting joint enforcement activities among all participating States. Several collective regional approaches to maritime security promoted by States in Africa and Asia are examined below. The discussion focuses on the multi-level cooperative framework fostered in both regions that crosses maritime boundaries among States, as well as different threats to maritime security. The selected frameworks share the features of a formal multilateral instrument adopted by the participating States, a coordinating body and having taken practical measures to fulfil its mandates.

The first example is the collective response to piracy off Somalia. In 2009, under the auspice of IMO, twenty regional States, out of twenty-one eligible States, adopted the Djibouti Code of Conduct (Djibouti COC).¹⁹⁴ The purpose of the Djibouti COC is, consistent with the participating States’ capacities and applicable laws, to promote regional cooperation to the fullest possible extent, thereby enhancing their effectiveness in the prevention, interdiction, prosecution and punishment of those individuals suspected of engaging in piracy and armed robbery at sea.¹⁹⁵ With support from IMO and the international community, the cooperative framework of the Djibouti COC consists of four thematic pillars: sharing information and raising MDA; enhancing national legislation; delivering national and regional training; and building counter-piracy capacity.¹⁹⁶

Following the successful repression of Somalia pirates, States in the region adopted the 2017 Jeddah Amendment to the Djibouti COC, extending its scope to cover other threats to maritime security, including trafficking in arms and drugs, illegal trade in wildlife, human trafficking and smuggling, illegal dumping of toxic waste and IUU fishing.¹⁹⁷ The implementation of the Jeddah Amendment is delivered under a governance framework comprised of a Steering Committee, a Working Group on Information Sharing and a Working Group on Capacity Building Coordination.¹⁹⁸ Two noticeable developments following adoption of the Jeddah Amendment are the commitment of participating States to establish multi-agency, multidisciplinary national maritime security and facilitation committees, and the increased cooperation with relevant States to coordinate activities to facilitate rescue, interdiction, investigation and prosecution of suspected illegal activities.¹⁹⁹

In response to the increasing threats of piracy, armed robbery against ships and other illicit maritime activities in the Gulf of Guinea, the Economic Community of Central African States, the Economic Community of West African States and the Gulf of Guinea Commission, with the assistance of IMO, adopted the Yaoundé Code of Conduct (Yaoundé COC) in 2013.²⁰⁰ Modelled after the Djibouti COC, the Yaoundé COC sets out another comprehensive regional strategy and framework concerning the prevention and repression of piracy, terrorism, illegal arms and drug trafficking, human trafficking and smuggling, marine pollution, IUU fishing and other transnational organised crime in the maritime domain of West and Central Africa.²⁰¹ Under the Yaoundé COC, signatory States set up the Interregional Coordination Centre, the Regional Centre for Maritime Security of West Africa and the Regional Centre for Maritime Security of Central Africa to facilitate information sharing and coordination.²⁰² The work of the three regional centres is supported by five zone-based Multinational Maritime Coordination Centres that oversee nineteen national Maritime Operations Centres.²⁰³ Similar to the Djibouti COC, the Yaoundé COC is a non-binding instrument that relies on the goodwill of the signatory States to implement these commitments and measures to address maritime security threats.²⁰⁴

The development of both regional approaches to maritime security is aligned with the increasing emphasis on the blue economy in Africa, which recognises the financial costs of unlawful activities at sea.²⁰⁵ In 2016, Member States of the African Union adopted the Charter on Maritime Security and Safety and Development in Africa (Lomé Charter) under the auspice of the 2050 Africa’s Integrated Maritime Strategy.²⁰⁶ The Lomé Charter covers the prevention and control of all transnational crimes at sea, all measures to prevent or minimise navigational accidents and all measures for the sustainable development of natural resources.²⁰⁷ By emphasising social economic measures and developing the blue economy as a means to increase State parties’ capacities, the Lomé Charter attempts to reconcile the traditional approach of restrictions to counter maritime instability with human developmental aspects.²⁰⁸

The range of maritime security challenges within the Southeast Asian region includes terrorism, illicit trafficking of weapons, drug trafficking, people smuggling, piracy, environmental deterioration and IUU fishing.²⁰⁹ These challenges affect some of the busiest shipping lanes in the Straits of Malacca and Singapore, through the archipelagic waters of Indonesia and the Philippines, and in and around the South China Sea.²¹⁰ Maintaining the safe passage of international commercial trade lanes through this region is essential – not just to the coastal States but also to the global economy.²¹¹ The increasing number of incidents in this region and the transnational nature of these threats call for concerted efforts among the regional States and other States to combat these threats effectively.²¹² Collective measures to promote maritime security in Asia on an organisational basis are taken under the auspices of ASEAN, which is an important diplomatic and legal forum to ‘foster cooperation in the furtherance of the cause of peace, harmony, and stability in the region’ and ‘achieve regional prosperity and security’.²¹³ These measures can be viewed both from within the ASEAN framework and those developed by ASEAN as a block with external partners.

ASEAN mechanisms to address issues relating to maritime security are both comprehensive and fragmented.²¹⁴ From the institutional perspective, maritime security is mainly dealt with under one of the three ASEAN community pillars, the Political-Security Community, in accordance with the principle of comprehensive security.²¹⁵ Within the Community, various sectoral ministerial bodies have mandates to address certain issues relating to maritime security including the ASEAN Ministerial Meeting on Transnational Crime, ASEAN Defence Ministers Meeting, ASEAN Ministers/Attorneys-General Meeting of the Central Authorities on Mutual Legal Assistance in Criminal Matters and the ASEAN Ministerial Meeting on Drug Matters.²¹⁶ Each of these ministerial bodies may have under its purview the relevant senior officials and subsidiary bodies to undertake its functions. From the policy perspective, ASEAN has developed numerous non-binding declarations, statements, plan of actions and work plans, guidelines and terms of references that directly or indirectly address maritime security issues.²¹⁷ There are also a number of binding instruments, including the 2004 Treaty on Mutual Legal Assistance in Criminal Matters, the 2007 ASEAN Convention on Counter Terrorism, and the 2015 ASEAN Convention Against Trafficking in Persons, Especially Women and Children.²¹⁸

Recognising that national and regional efforts alone will not be suffice in effectively dealing with maritime security threats, Member States of ASEAN have cooperated closely with dialogue partners and regional and international organisations.²¹⁹ In 1993, the ASEAN Regional Forum (ARF) was established as a consultative Asia-Pacific Forum for promoting open dialogue on political and security cooperation in the region.²²⁰ In 2008, the Inter-Sessional Meeting on Maritime Security was established under the ambit of ARF as a dedicated platform to discuss maritime security.²²¹ Maritime security issues have also been considered under the auspices of the ASEAN Plus Three Cooperation since 1997,²²² the East Asia Summit established in 2005²²³ and the Expanded ASEAN Maritime Forum established in 2012.²²⁴

ASEAN functions in an ‘ASEAN way’, upholding the practice of intense dialogues and exhaustive consultations to generate consensus among participating States on contentious issues facing the region whereby votes and binding instruments are uncommon.²²⁵ The priority areas of cooperation on maritime security are centred on building confidence and trust, sharing information and developing capacities through training and joint exercises. Although cooperation measures among ASEAN members and with external partners show progress in terms of practical security cooperation, they remain largely dialogue-based and are far from achieving collective regional maritime security.²²⁶

These regional approaches will provide a platform under which the regional States and the international community can cooperate and coordinate their efforts to prevent and suppress maritime security threats through increasing the capacity of the countries, enhancing effective border controls and promoting information sharing. The key characteristics for a functional regional governance system are the existence of political goodwill, shared concern of a common threat, the availability of rule-based regulation, the commitment of resources of cooperation and the expected gain from coordinated cooperation.²²⁷

Increasingly, States recognise that they have shared interests and responsibilities to ensure the security of the uses of sea areas. There is a growing willingness among States to develop bilateral and multilateral cooperative measures to combat threats to maritime security. As the above discussion illustrates, these actions remain within the legal framework of UNCLOS in exercising enforcement jurisdiction over maritime security threats in the EEZ. The most influential mechanism to promote collective maritime security is the establishment of international and regional resolutions to improve cooperation that facilitates the exchange and sharing of information, sustained capacity-building in the affected States and the commitment to take concrete operations to promote the granting of flag State authorisation.

7.5 The Way Forward

Ensuring open and protected ocean space and sea routes is critical for international trade and access to natural resources. In addition to the traditional concerns of sea power balance and the legal framework governing the ocean, maritime security measures need to recognise the interconnectivity of multifaceted threats and different stakeholders, the novel forms of governance and order at sea and the promotion of competence and capacity-building.²²⁸

As a general proposition established under UNCLOS, the rights and jurisdiction of a coastal State over its maritime zones diminishes with the greater distance of the zone from its coast. In the EEZ, the coastal State’s intent to extend and tighten its jurisdiction over maritime security threats once again clashes with other States’ efforts to maximise the freedoms of navigation and overflight. However, there are two important features with regard to maritime security that have potential implications for the attribution of the rights to protect maritime security interests in the EEZ. First, all States share an interest in maintaining the security of navigation and other communication rights where the divergence between coastal State and other States blurs. Hence, there is a tendency to share concurrent jurisdiction over certain activities through international instruments or under the authorisation of the UNSC. Second, although interdicting suspicious vessels far from the coast may be the most effective way to protect the coastal State’s maritime security, it remains a restricted approach. This is further complicated by the incapability or reluctance of some States to undertake effective measures within the vast area of the EEZ, which highlights the importance for States to cooperate and collaborate, in particular on regional basis, to this end.

UNCLOS continues to play an important role in shaping the contemporary international legal framework for ensuring maritime security.²²⁹ Although UNCLOS does not explicitly attribute rights or jurisdiction over the protection of maritime security in the EEZ, it is fairly clear on the allocation and exercise of jurisdiction over various threats to maritime security. Current developments show an emerging willingness by States to develop new rules directed towards specific threats, including efforts to establish jurisdiction through multilateral agreements and for coastal States to obtain comprehensive information under the framework of the MDA. However, apart from some procedural steps to promptly obtain a flag State’s consent to take action against a foreign vessel under certain conditions, there is no obvious deviation from the principle of exclusive flag State jurisdiction in the EEZ.²³⁰ The fact that the flag State maintains exclusive jurisdiction requires that the coastal State recognises the existence of such enforcement rights in its EEZ and does not unreasonably impede its implementation. Where the flag State is unable or unwilling to exercise such enforcement power over certain maritime security threats that are of concern to the coastal State, it should cooperate with the coastal State to effectively combat such threats.

There is also an emerging trend for States to cooperate at the international and regional levels to address maritime security threats. While ad hoc operations are well suited as a short-term solution for a particular threat, a comprehensive approach and multilateral cooperation are the only means to effectively address the root causes of the maritime security phenomena. This is particularly true in situations where the relevant State lacks capacity to prevent and combat certain imminent threats in areas under its jurisdiction and the situation threatens the peace and security of a region or even the international community. State practice in both Asia and Africa has shown that regional efforts improve information and resources sharing, enhance capacity-building and enforcement techniques of the coastal State and, in some situations, allow third States, with the consent of the flag State, to exercise a degree of authority over foreign vessels in the EEZ.

With regard to maritime security in the EEZ, the coastal State is gaining prescriptive jurisdiction to promote awareness and readiness in order to prevent potential threats. Although the flag State retains exclusive enforcement jurisdiction, there is an increasing tendency for them to relinquish it under treaty obligations or through authorisations under the UNSC. Finally, all States are required to cooperate to protect the interests of the international community as a whole. The rules of international law that address maritime security threats are in a state of transition, but the UNCLOS system and subsequent special international agreements and regional measures are flexible enough to face these new challenges.²³¹

8 Underwater Archaeological and Historical Objects

8.1 Introduction

Underwater archaeological and historical objects refer to materials and remains lying on or in the seabed that have the potential to yield information and knowledge about natural and historical existence of human civilisation.¹ These include submerged sites and structures of remains of a prehistoric settlement, wreck sites and wreckage of ships, aircraft and spacecraft along with the items contained therein, and their archaeological and natural context.² In particular of shipwrecks, the estimation is that until the nineteenth century, almost 5 per cent of all seagoing ships were lost every year because of bad weather, incidents of navigation, maritime crimes, naval battles or other events.³ These shipwrecks and sites are known as a ‘time capsule’, meaning that everything may well be as it was when it disappeared beneath the water’s surface, loaded with irreplaceable information about the history of humankind.⁴

Land-based archaeology is a vintage academic science, but maritime or underwater archaeology only became an ‘independent’ or ‘specialised’ subject by the end of the 1960s due to the growing awareness of the significance of shipwrecks and other forms of underwater cultural heritage (UCH).⁵ This was made possible through innovations in marine technology, in particular the aqualung, which permitted and generalised scuba diving, and the application of remote sensing and underwater robotics.⁶ Access to underwater archaeological and historical objects had a twofold impact: scientific discovery of historical vestiges and, at the same time, information that could be used for purposes such as commercial exploitation. In addition, the growing human utilisation of the ocean and its resources increasingly threatens the existence of these objects, deliberately or otherwise.⁷ Moreover, these objects are vulnerable to changes of the marine environment, such as natural disasters, global warming, acidification and water pollution.

The international law to protect underwater archaeological and historical objects, however, has remained underdeveloped to adequately regulate human activities in the interests of their preservation. The 1982 United Nations Convention on the Law of the Sea (UNLCOS) refers to these objects twice.⁸ While Article 149 relates only to those archaeological and historical objects located in the Area, Article 303 lays down a general obligation for all States to protect such objects found at sea with a particular focus on the contiguous zone. However, UNCLOS does not define any specific rules relating to such objects found on the continental shelf or in the exclusive economic zone (EEZ), that is, the space located between the external limit of the contiguous zone and the limit of the Area.⁹ In this regard, UNCLOS left a legal vacuum that would threaten the protection of these objects, as it emphasises the principle of flag State jurisdiction and the freedom of the high seas, which could easily lead to a first-come-first-served approach.¹⁰

On a positive note, the international law of the sea, including the implementation of UNCLOS, is not static, but evolves through State practice and subsequent agreements. Certain threats to the majority of underwater archaeological and historical objects have been addressed by the United Nations Organization for Education, Science and Culture (UNESCO), particularly through the 2001 Convention on the Protection of Underwater Cultural Heritage (CPUCH).¹¹ The CPUCH, without altering the jurisdictional framework of maritime zones established by UNCLOS, institutes an international State cooperation scheme based on information sharing and cooperative protection.¹² Of particular interest to the EEZ, the coastal State has been granted a special role as a Coordinating State for the protection of UCH found in the EEZ and on the continental shelf on behalf of State parties as a whole.¹³

This chapter analyses and discusses the jurisdiction over activities that are pertinent to the archaeological and historical objects found in the EEZ. In Section 8.2, the development of the legal framework to protect these objects under UNCLOS and the CPUCH is reviewed, together with an interpretation of how these objects are defined under each treaty. The jurisdictional arrangements over activities that may affect the protection of these objects found in the EEZ is then analysed in Section 8.3. Special attention is given to the relevant provisions of the CPUCH, which somewhat clarifies the role of the coastal State in protecting UCH in the EEZ. This is followed by a discussion in Section 8.4 of the legal procedures that could be invoked to settle disputes relating to these objects.

A central strand of the discussion in this chapter is premised on the argument that the subject of underwater archaeological and historical objects falls under the unattributed rights and jurisdiction in the EEZ.¹⁴ With this understanding, all States have the right to undertake activities relating to the archaeological and historical objects found in the EEZ. In addition to the due regard obligation, the exercise of such a right must not breach the acting State’s obligation to protect such objects and those obligations it undertook as a State party to the CPUCH. Given the lack of specific provisions in UNCLOS addressing the issues relating to these objects found in the EEZ, the provisions of CPUCH on the protection of UCH in the EEZ can be considered an agreement substantiating the rules codified in UNCLOS Article 59.¹⁵

8.2 Overview of the Legal Framework

8.2.1 Historical Development

Beginning in the 1950s, modern technological advances allowed the discovery and recovery of archaeological and historical objects from the marine environment. At the time, international law was not clear on who had the right to explore these objects or allocate their property rights.¹⁶ States had adopted national legislation to regulate certain activities of their nationals to provide protection of these objects from intentional human interference.¹⁷ The issue of these objects did not receive any special attention during the First and Second United Nations Conference on the Law of the Sea and was only discussed at the Third Conference towards the end of the negotiation process.¹⁸ This resulted in only one provision, Article 303, which was incorporated in the Part XVI ‘General Provisions’ that applies to all maritime zones, with the intention to avoid upsetting the specific jurisdictional balance adopted in various maritime zones.¹⁹

The negotiation history of Article 303 of UNCLOS has been well described in the literature and can be summarised as follows.²⁰ The provision originated in a proposal submitted by Greece, with revisions and support by other States, that the sovereign rights of the coastal State in respect of both the continental shelf and the EEZ be extended to include rights regarding the discovery and salvage of any ‘object of purely archaeological or historical nature on the seabed and subsoil’.²¹ This proposal met with strong opposition from other maritime States, namely, the United States, the United Kingdom and the Netherlands, which feared the creeping jurisdiction of the coastal State in the EEZ and on the continental shelf. Instead, the United States proposed to include a general duty of all States to protect archaeological and historical objects found in the marine environment. Ultimately, the US proposal was adopted after much debate on the basis that it was ‘closer to a compromise than any of the others’ presented.²²

Article 303 has four paragraphs, with one declaring the general duties to protect and cooperate to protect objects of an archaeological and historical nature found at sea, one giving coastal States a limited jurisdictional right to control traffic in such objects up to the outer limit of their contiguous zone when declared, and two disclaimer provisions of relevant rights holder and other international agreements. Activities directed at these objects, or activities that might incidentally affect them, between the outer limit of the contiguous zone and the Area were not regulated but rather subordinated to the rights and duties related to the exploration and exploitation of the EEZ and the continental shelf.

The legal framework for protecting underwater archaeological and historical objects created under UNCLOS has been harshly criticised as complicated and incomplete.²³ Several historical conditions contributed to this legal gap. During the 1970s, recognition of marine archaeology as an independent scientific discipline was still limited, and it was not considered marine scientific research during the Third Conference, as it does not involve the study of the natural marine environment.²⁴ These objects were seen by some lead negotiating States as commodities and were thus subject to appropriation, the law of finds and/or salvage, and trade with commercial values. Additionally, the risks and threats to these objects were not perceived the same in the 1970s as they are today.

Subsequent development on using legal tools to protect underwater archaeological and historical objects was mainly driven by concerned States of the Mediterranean Sea through proceedings at the European level. Notable instruments adopted by the Council of Europe include the Roper Report and Recommendation 848, a 1985 draft European Convention on the Protection of the Underwater Cultural Heritage and the 1992 revised European Convention on the Protection of the Archaeological Heritage.²⁵ These initiatives made vital contributions to the evolution of international law in the field. They demonstrated that there were political recognition and commitment, certainly within Europe, to develop a treaty framework to afford protection to UCH. Additionally, the debates and draft provisions showed that acceptable compromises could be reached on areas of contention such as the definition and criteria of UCH, jurisdictional attribution over certain activities targeted at these objects beyond the outer limit of the contiguous zone, and the scientific standards of archaeology and conservation.²⁶

The protection of UCH has also been the subject of discussion and initiatives in other forums. A notable example of the legal instruments is the 1993 Draft Convention on the Protection of the Underwater Cultural Heritage produced by the International Law Association (ILA).²⁷ The ILA Draft Convention had been taken up by UNESCO, along with other instruments and conventions, as a basis to develop an international agreement on this subject.²⁸ There was considerable political commitment during the negotiation process of the CPUCH to find acceptable compromises on the core areas of contention. Mirroring the process at the Third Conference, the main tension remained between the coastal States arguing for broader jurisdiction within certain maritime zones to adequately protect the UCH and the maritime powers resisting the pressure for coastal States to be given such direct jurisdiction.²⁹ A consensus could not be reached on a number of key provisions, and the negotiations concluded with a majority vote to adopt the CPUCH in 2001. Several maritime powers rejected the draft convention over concerns about two particular issues. First, they regarded the regulatory framework established for the continental shelf and EEZ as prejudicial, or at least potentially, to the ‘package deal’ and jurisdictional balance enshrined in UNCLOS; second, they were dissatisfied with the treatment of sunken State vessels including warships.³⁰

The CPUCH was negotiated for the main purpose of solving the caveats left unresolved by UNCLOS and creating a new international legal regime for the protection of UCH according to generally accepted scientific standards.³¹ It focuses on how State parties can regulate human activities that could affect UCH in different maritime zones rather than on the objects themselves. Therefore, the regulatory regime established by CPUCH is heavily reliant on flag State jurisdiction and cooperation. The wide participation of and implementation by State parties are crucial for the regime to be fully functional and effective. Major historical maritime powers such as Spain, Portugal, Italy and Tunisia are parties and there are an increasing number of Latin American States (where a lot of UCH lies) have also ratified. Non-State parties including Australia, Canada, China, Germany, Greece, Russia, the Netherlands, the United Kingdom, the United States and Türkiye generally support the principles and standards of the CPUCH.³² It is, nevertheless, the most complete and up-to-date regulation of activities directed at or incidentally affecting UCH in continental and marine waters and has seventy-seven State parties worldwide as of July 2024.³³

The CPUCH was the culmination of an evolutionary process in the development of international law in the field of UCH protection taking place over more than four decades.³⁴ From the perspective of the scope of application, the CPUCH only covers certain archaeological and historical objects – the broader term used by UNCLOS – that meet its criteria and have been under water for at least 100 years.³⁵ From the perspective of the hierarchy relationship between these two instruments, both UNCLOS and CPUCH provide that it is subject to the other, which is a rather paradoxical situation.³⁶ An attempt to resolve this deadlock could be to apply the general principles of law according to which the special rules prevail over the general rules (lex specialis derogates from legi generali), and the later treaty relating to the same subject matter suspends the earlier treaty among the same State parties.³⁷ In this regard, among State parties to both treaties, the interpretation and implementation of Articles 149 and 303 of UNCLOS should follow, insofar as they are compatible with the basic principles of UNCLOS, the more specific and later CPUCH regime. Article 3 of CPUCH guarantees that all the UNCLOS provisions other than those two specifically related to the UCH are unaffected.

8.2.2 Objects of Archaeological and Historical Nature

In the practice of heritage law, the definitions of subject matter often include two types of criteria. One is the ‘definitional criteria’ that sets out the type of subject matter capable of being afforded protection by the legislation, and the other is the ‘selection criteria’ that limits the scope of the definition by reference to some value, or is indicative of value, which determines what is to be protected in fact.³⁸ This approach to defining the subject matter has been employed by both UNCLOS and CPCUH.

Both Articles 149 and 303 of UNCLOS used the same phrase, ‘objects of an archaeological and historical nature’, to define their subject matter. The word ‘objects’ describes the subject matter that is capable of being covered, and the phrase ‘of an archaeological and historical nature’ describe the value that these objects must possess in order to be covered in fact. However, UNCLOS did not define any of the terms used. Under the general rules of treaty interpretation, each term must be interpreted in good faith in accordance with its ordinary meaning in the context in which it is found and in light of the treaty’s object and purpose, taking into account any subsequent agreements, practice and other relevant rules of international law.³⁹

It should be noted that the ‘objects of an archaeological and historical nature’ were clearly excluded from the notion of ‘resources’ as used in UNCLOS.⁴⁰ In its commentary on a draft article describing the coastal State’s sovereign right over the continental shelf, the International Law Commission (ILC) declared that ‘[i]t is clearly understood that the rights in question do not cover objects such as wrecked ships and their cargoes (including bullion) lying on the seabed or covered by the sand of the subsoil’.⁴¹ This firm statement made it clear that the ILC was of the view that shipwrecks were not included within the sovereign rights of the coastal State on the continental shelf, which was ‘for the purpose of exploring and exploiting its natural resources’.⁴² In light of the ILC’s early pronouncement, it became generally accepted that the sovereign rights of coastal States over natural resources on the continental shelf and in the EEZ, as codified in UNCLOS, could not be interpreted as extending to shipwrecks.⁴³

As to the ‘definitional criteria’, the ordinary meaning of the term ‘object’ is a material thing that can been seen and touched, and is generally associated with a thing that is movable. It may at first appear questionable whether something that was originally a fixed, immovable site or structure can qualify as an object. In light of the object and purpose of Articles 149 and 303, the context of the term as found therein, and taking into account the travaux préparatoires, there is no doubt that a broad interpretation was intended that would encompass sites, fixed structures and shipwrecks.⁴⁴ A distinction between the subject matter of the two provisions can be observed in that Article 149 explicitly applies to ‘all objects of an archaeological and historical nature’, whereas Article 303 applies to such objects generally and does not refer to ‘all’.

In order to fall within the scope of Articles 149 and 303, objects must be ‘of an archaeological and historical nature’. This phrase represents the ‘selection criteria’. Although the words ‘archaeological and historical’ are frequently used to describe the subject matter of protective legislation, it seems that no consideration was given to definitions at the Third Conference.⁴⁵ The adjectives ‘archaeological and historical’ imply objects of antiquity rather than those of more recent origin, and the value of these objects is evident by their association to humankind.⁴⁶ The key challenge and difficulty to applying the selection criterion used in Articles 149 and 303 is the question of time, that is, how to define the age of the object or a date prior to which such object be considered ‘archaeological and historical’. Commentators and national legislation have adopted different thresholds for protection of these objects. It has been argued that, given the negotiation history was heavily influenced by the practice and approaches of the Mediterranean States, this phrase should be interpreted as covering only things that are ‘many hundreds of years old’ and was not intended to apply to ‘modern objects whatever their historical interest’.⁴⁷ However, State practice and scholarly opinions have evolved to interpret ‘archaeological and historical’ to include objects of more recent origin, and there is no evidence that objects are limited to things that are centuries old.⁴⁸

The CPUCH adopted the term ‘UCH’ to define the subject matter. It refers to ‘all traces of human existence having a cultural, historical or archaeological character which have been partially or totally under water, periodically or continuously, for at least 100 years’.⁴⁹ This is followed by a list of examples and two specific exclusions from the scope of application of the CPUCH, namely pipelines and cables and other operational installations.⁵⁰ The ‘definitional criteria’ require that the subject matter be ‘all traces of human existence’, whereas the ‘selection criteria’ is limited to those ‘having a cultural, historical or archaeological character’ and having been under water for more than 100 years.⁵¹ The fact that the subject matter must represent a trace of human existence, or form part of the context for such traces, excludes natural materials such as sediments, peat and fossilised fauna and flora dating from prehistoric times that are not directly associated with evidence of human existence.⁵² Moreover, this definition gives no further indication of how significant the subject matter should be or how to assess its value. The threshold of having been under water for more than 100 years defines its value on the one hand and excludes the remains of cultural, historical and archaeological significance that fall outside its protective regime on the other hand.⁵³

It is clear that UNCLOS covers a much broader scope of subject matter than the CPUCH, as the more precise definition of UCH only forms part of the archaeological and historical objects found at sea. Thus, despite the fact that the term itself is commonly used in practice, the definition of UCH under the CPUCH cannot be used to interpret the term used in Articles 149 and 303 of UNCLOS.⁵⁴ Subsequent analyses and discussions will follow the general interpretation and scope of objects of an archaeological and historical nature as defined under UNCLOS, and will highlight the additional rights attributed to State parties over UCH under the CPUCH.

8.2.3 The Duties to Protect Archaeological and Historical Objects Found at Sea

Article 303 is located in Part XVI ‘General Provisions’ of UNCLOS. With the exception of paragraph 2, which relates specifically to the contiguous zone, it applies generally and is not geographically restricted. The effect of this is that the duties on States in paragraph 1 apply to all maritime areas, including the EEZ, as do the provisions for the rights of identifiable owners, the law of salvage, other international agreements and additional matters set out in paragraphs 3 and 4.

Under Article 303(1), States have two very general duties to protect and cooperate to protect all archaeological and historical objects found at sea. It does not require that the State should have an interest in or be in any way relevant to the objects of concern; the duties apply generally irrespective of the origins of the objects.⁵⁵ These duties are not without vagueness due to the lack of precision in their content.⁵⁶ States have broad discretion to decide on the means to protect these subjects, albeit such protection cannot be considered a basis for any State to claim jurisdiction over the area where these objects are found. This limitation was clear from the negotiation history such that Article 303 is a compromise resulting from major maritime powers’ concern for avoiding any further erosion of the high seas freedoms.⁵⁷ Nevertheless, the duty to protect has some legal consequences. For example, States should take all necessary measures, including legislative, administrative and enforcement measures, necessary to protect these objects. More importantly, a State that knowingly allows its nationals or ships flying its flag to damage or destroy objects of archaeological and historical nature could be held responsible for an internationally wrongful act.⁵⁸

While it is established that States have a duty to cooperate for the protection of underwater archaeological and historical objects, the extent that they are required to do so is not clear, as cooperation can mean different things in different contexts.⁵⁹ The duty to cooperate is a duty of concuct and can be seen as implying a duty to act in good faith in pursuing the protection of these objects, and in taking into account the positions of the other relevant States.⁶⁰ States are expected to implement this duty to cooperate through subsequent regional and international initiatives to effectively protect these objects.

As the name indicates, the objectives of the CPUCH are to ‘ensure and strengthen the protection of [UCH]’, and State parties assume the duty to cooperate to this end.⁶¹ State parties are obligated, individually or jointly, to take all appropriate measures using ‘the best practice means at their disposal and in accordance with their capabilities’ in conformity with the CPUCH and international law to protect UCH.⁶² State parties are further encouraged to develop bilateral, regional or other multilateral agreements to protect UCH.⁶³ The CPUCH also explicitly states that ‘[a]ll States Parties have a responsibility to protect [UCH]’ in the EEZ and on the continental shelf.⁶⁴ The CPUCH could be considered a subsequent agreement that clarifies the general duties to protect UCH, particularly through the establishment of a cooperation mechanism among relevant States that will be discussed below.

Paragraph 2 of UNCLOS Article 303 gives the coastal State limited competence in respect of the removal of underwater archaeological and historical objects found in the contiguous zone. With respect to the rest of the EEZ, the coastal State is afforded no rights in respect of these objects, and its rights and duties over activities that might affect these objects will be governed by relevant provisions of UNCLOS and general international law. However, the precise nature of the jurisdictional competence afforded to coastal States by paragraph 2 is far from clear.⁶⁵ The exercise of this right is conditioned on the coastal State proclaiming a contiguous zone up to 24 nautical miles (NM) from the baselines.⁶⁶ The coastal State’s right is based on a presumption and a legal fiction, which assumes that its customs, fiscal, immigration or sanitary laws and regulations would be infringed with the unauthorised removal of archaeological and historical objects from such zone.⁶⁷ If understood literally, the legal basis for the coastal State to take action is not the domestic legislation on the protection of these objects. Moreover, the coastal State’s right is only triggered with the actual and detected removal of such objects from the contiguous zone. It is not clear whether such a right would extend to take actions against activities that cause other damage to these objects in situ. The lack of clarity of this coastal State right is, in part, because of the negotiation history where some maritime powers, notably the United States, the United Kingdom and the Netherlands, wished to avoid a formal extension of coastal State jurisdiction over these objects beyond the limit of the territorial sea.⁶⁸

In the 2022 Nicaragua v Colombia case, the International Court of Justice (ICJ) had the opportunity to examine the legal status and scope of Article 303(2). Colombia is not a party to UNCLOS but adopted national legislation to protect cultural heritage in the declared 24 NM ‘integral contiguous zone’ based on the claim that both Articles 33(1) and 303(2) reflect customary international law.⁶⁹ The ICJ, after considering State practice and other legal developments in this field, accepted Colombia’s argument and declared that under customary law, Colombia is ‘entitled to a contiguous zone’, and ‘it includes the power of control with respect to archaeological and historical objects’ found therein.⁷⁰ Although provided with no further content, the statement of ‘power of control’ is broader than merely ‘control traffic in such objects’ in case of a ‘removal from the seabed’ from the contiguous zone. The ICJ’s declaration of the customary law status of Article 303(2) and the expanded interpretation of the coastal State’s right could serve as a legal basis for coastal States to control activities affecting these objects in the contiguous zone. The ICJ’s interpretation reflects the development of the law by the CPUCH and State practice.

The coastal State’s right relating to the UCH in the contiguous zone has been, to some extent, clarified and expanded by the CPUCH.⁷¹ Rather than referring to the ‘removal’ of these objects from the seabed, State parties have been granted the right to regulate and authorise activities directed at UCH within their contiguous zones.⁷² Although the wording goes quite far from Article 303(2) of UNCLOS, CPUCH has acknowledged that this provision is ‘without prejudice to’ and ‘in accordance’ with UNCLOS.⁷³ This article could be understood from two perspectives. CPUCH has a relatively narrow focus on UCH, which is only part of the archaeological and historical objects covered by UNCLOS. In addition, CPUCH is a later developed and more specialised law. Therefore, it would modify the rights and obligations between States that are parties to both treaties, whereas legal matters that fall outside of these two perspectives will continue to be governed by UNCLOS.⁷⁴ It is worth noting that there is a strong trend of State practice to adopt an expanded interpretation of the coastal State right in relation to archaeological and historical objects found in the contiguous zone as recognised by the ICJ in the Nicaragua v Colombia case.⁷⁵ Several States – Mauritius, South Africa, and some from the Mediterranean Sea region – have established a 24 NM ‘archaeological zone’ or ‘cultural heritage/protection zone’ with the aim to protect UCH.⁷⁶

Paragraph 3 of Article 303 protects ‘the rights of identifiable owners, the law of salvage or other rules of admiralty, or laws and practices with respect to cultural exchanges’. As a non-prejudice clause, it allows the application of private law and admiralty law, including salvage law, to underwater archaeological and historical objects found at sea. This paragraph also fails to provide precise definitions of the terminology used and has the potential to further weaken the general duties to protect these objects.

The tension between ownership rights and the protection of these objects has been a constant challenge in the field of cultural heritage law.⁷⁷ Likewise for Article 303(3), neither the negotiation history nor the paragraph explains who are the ‘identifiable owners’, how ownership established and whether ownership could be transferred through salvage or through abandonment after being submerged.⁷⁸ It would be clear that the ownership referred to here is in a private law context compared with the terms of ‘the preferential rights of the State or country of origin, or the State of cultural origin, or the State of historical and archaeological origin’ as used in Article 149 of UNCLOS. Article 303(3) does not address the relationship between the rights of the identifiable owner and the rights that could be recognised by salvors, if any, and the preferential rights of other States.

The implications of the phrase ‘the law of salvage and other rules of admiralty’ differ between countries. The law of salvage is essentially a matter of private law that governs relationships between private parties. In many national laws, the law of salvage is related to the service to recover property lost at sea that has a value to be salvaged.⁷⁹ But some common law jurisdictions, such as the United States, have interpreted salvage law to cover treasure salvage, and applied admiralty law in an extra-territorial manner to grant salvors and finders rights over wrecks and properties found at sea, wherever they are located.⁸⁰ Should this approach be commonly adopted, the protection phrase in Article 303(3) could function as an active encouragement to the unregulated recovery of underwater archaeological and historical objects.⁸¹ The International Convention on Salvage, in contrast, allows its State parties to make reservations to exclude its application ‘when the property involved is maritime cultural property of prehistoric, archaeological or historic interest and is situated on the sea-bed’.⁸²

It has been argued that the duty to protect underwater archaeological and historical objects could be carried out using the law of salvage, provided that the operation is consistent with the public interest as reflected in the scientific rules of recovery and the international standards of conservation and curation.⁸³ As a negotiated compromise, the CPUCH did not ban the application of the law of salvage or law of finds to UCH but eliminated its undesirable effects. In addition to declaring that UCH should not be commercially exploited, the CPUCH provides that activities relating to UCH may only be subject to the law of salvage or law of finds if it is authorised by the competent authorities, in full conformity with the CPUCH, and ensures that any recovery of UCH receives maximum protection.⁸⁴

Finally, Article 303(4) protects in another non-prejudice clause ‘other international agreements and rules of international law regarding the protection of objects of an archaeological and historical nature’. The intention of this clause is not to affect, for example, existing agreements such as the 1972 Agreement between Australia and the Netherlands on Old Dutch Shipwrecks located in Australian waters, or other similar agreements to be concluded.⁸⁵ Among possible subsequent agreements, the CPUCH, which began to be negotiated at UNESCO when UNCLOS entered into force, has become the most influential multilateral agreement for the protection of UCH.

The most glaring problem with the application of the general duties to protect underwater archaeological and historic objects under UNCLOS is the geographical ‘gap’ in the provisions they afford. This gap relates to the EEZ and continental shelf beyond the contiguous zone to the outer limit of the juridical continental shelf that forms the boundary with the Area. As a result, activities affecting these objects, deliberately or incidentally, are governed by the general rules of UNCLOS. But archaeological research and protection do not fall directly within the purposes for which ‘sovereign rights’ are granted to the coastal State as set forth in UNCLOS. In essence, subject to the undefined general duties to protect these objects, the obligations of due regard and non-abuse of rights, it is the flag State that has the competence to control these activities.⁸⁶ Presumably, in the course of time, this gap in law will be dealt with by the competent international organisation, in particular UNESCO, and by State practice.⁸⁷

8.2.4 State Cooperation Mechanism under the Convention on the Protection of Underwater Cultural Heritage

Developed by UNESCO, the CPUCH is the international community’s response to the inadequacy of the international legal protections and to concerns about the increasing incidence of commercial exploitation of shipwrecks and other UCH. It is the product of thirteen years of preparatory work at different levels at UNESCO, including four years of formal negotiations.⁸⁸ Its purpose is to afford a comprehensive legal regime for protecting UCH in all maritime zones for the benefit of the whole of humanity.⁸⁹ The CPUCH embodies a form of scientific cooperation built around three main ideas. First, the performance of any activity directed at the UCH must follow widely recognised scientific standards; second, any commercial approach to UCH must be avoided; and third, it creates a cooperation mechanism among the State parties to protect the UCH.⁹⁰ At the core of the CPUCH is a complex regime that enables State parties, individually and collectively as appropriate, to regulate activities in international waters. It develops the twofold duties to protect and to cooperate to protect underwater archaeological and historical objects mandated in Article 303(1) UNCLOS. For the purpose of this chapter, the discussion will focus on the State cooperation mechanism applicable in the EEZ, including the contiguous zone.

As discussed earlier, the CPUCH has clarified and expanded the right and jurisdiction given to coastal States with respect to the protection of UCH found in the contiguous zone. In the contiguous zone, where declared, State parties may ‘regulate and authorize’ activities directed at UCH, and in so doing require these activities to be taken in accordance with internationally accepted archaeological principles and standards of behaviour.⁹¹ State parties also assume the obligation to implement other relevant provisions of the CPUCH. For example, when authorising and regulating such activities, there should be a presumption in favour of preservation in situ until such time as intervention is justified for scientific or protective purposes.⁹²

At the heart of the CPUCH are the provisions with respect to the protection of UCH in the EEZ and on the continental shelf, which to some extent fills the legal gap left by UNCLOS.⁹³ Articles 9 and 10 of the CPUCH establish a complex cooperation mechanism that involves a reporting and notification procedure, as well as the taking of various forms of protective actions by relevant States parties, acting alone and in concert. In attempting to create a formula to accommodate the competing interests of different States, Articles 9 and 10 incorporate a number of constructive ambiguities and accord a special role to a ‘Coordinating State’, which may or may not be the coastal State.⁹⁴

The State cooperation mechanism, as a compromise achieved in the CPUCH, involves the participation of all the States linked to the heritage. The mechanism is achieved through the coordination by the ‘Coordinating State’, normally the coastal State in whose EEZ or on whose continental shelf the UCH is located unless otherwise decided.⁹⁵ Any State party may declare, through diplomatic channels, to the State party in whose EEZ or on whose continental shelf the UCH is located ‘its interest in being consulted on how to ensure the effective protection of that [UCH]’ and assume the role as one of the ‘interested State Parties’.⁹⁶ However, the interest must be based on ‘a verifiable link, especially a cultural, historical, or archaeological link, to the [UCH] concerned’ and supported by relevant evidence and documentation.⁹⁷ This cooperation mechanism may entail the performance of preliminary research, the authorisation of archaeological activities to prevent undesirable activities and regulate desirable ones, and/or the adoption of urgent and preventive measures.⁹⁸ The three-step procedure – reporting, consultations and urgent measures – can be summarised as follows.

State parties to the CPUCH have the obligation to follow the reporting and notification requirements laid out in Article 9. Primarily, State parties are required to ensure their nationals or vessels flying their flags report any discoveries or intentions to engage in activities directed at UCH in their EEZs or on their continental shelves. They are further required to ensure that their nationals or vessels flying their flags report such discoveries or activities in the EEZ or on the continental shelf of another State party to them or to that State party. The relevant State party is then requested to notify the Director-General of UNESCO of such reported discoveries or activities, who then will promptly make such information available to all State parties. Upon receiving such information, any State party may declare to the State party in whose EEZ or on whose continental shelf the UCH is located its interest to be consulted.

Under Article 10 of the CPUCH, the State party in whose EEZ or on whose continental shelf the UCH is located will assume the role as ‘Coordinating State’ to coordinate the consultation process with all other interested State parties on how best to protect the UCH. If the coastal State does not wish to assume the role as Coordinating State, the role will be jointly appointed by other interested State parties. The Coordinating State shall implement the protective measures that have been agreed to by the consulting States, and shall issue all necessary authorisations for these measures in conformity with the rules concerning activities directed at the UCH.⁹⁹ These provisions are consistent with the general duties under UNCLOS to protect UCH and cooperate for that purpose and do not upset the delicate jurisdictional balance between different States in the EEZ.

Article 10(4) further authorises the Coordinating State to take all practical measures and/or issue any necessary authorisation to prevent any immediate danger to UCH arising from human activities or any other cause, including looting. Such urgent measures could be taken prior to the consultation process with all other interested State parties. Moreover, the Coordinating State may request assistance from other State parties in taking the urgent measures to protect the UCH. This authorisation, however, has generated debates on whether it gives the Coordinating State unchecked power to take any measures, not excluding the use of force, on the pretext of protecting the UCH in the EEZ.¹⁰⁰ As such, the immediate paragraph states that the Coordinating State shall act ‘on behalf of the States parties as a whole and not in its own interest’, and any coordinating action ‘shall not in itself constitute a basis for the assertion of any preferential or jurisdictional rights not provided for in international law, including the [UNCLOS]’.¹⁰¹ This statement should constitute a bar to any creeping jurisdiction temptation.

In addition to this three-step procedure to facilitate cooperation, State parties have a general duty to cooperate to protect the UCH under the CPUCH. State parties are required to cooperate and assist each other in the protection and management of UCH, including, ‘where practicable, collaborating in the investigation, excavation, documentation, conservation, study and presentation of such heritage’.¹⁰² In order to prevent secrecy and unregulated activities directed at UCH, each State party undertakes to share information with other State parties about the ‘discovery of heritage, location of heritage, heritage excavated or recovered contrary to this Convention or otherwise in violation of international law, pertinent scientific methodology and technology, and legal developments relating to such heritage’.¹⁰³

In 2021–2022, the State cooperation mechanism under the CPUCH was activated for the first time with respect to an archaeological site on the Skerki Bank, a geological featured between Sicily and Tunisia hosting numerous wrecks from Phoenician times to the Second World War, with Tunisia acting as the Coordinating State and the participation of seven interested State parties.¹⁰⁴ A Coordinating Committee, composed of the eight State parties, has been established to support the initiative with each State represented by a designated focal point. The Coordination Committee is responsible for developing strategies and action plans to achieve the objectives of the initiative. Researchers from the eight States collaborated to carry out an international underwater archaeological mission on the Skerki Bank in 2022 that led to the discovery of three new shipwrecks and the retrieval of relevant archaeological information.¹⁰⁵ The establishment of this cooperation mechanism represents a real opportunity for the Mediterranean States to protect an archaeological site beyond the limit of their territorial waters.

Underpinning the entire treaty framework is the principle that State parties must cooperate in the protection of UCH. The all-important cooperation mechanism the CPUCH creates for the EEZ and the continental shelf is dependent upon State parties sharing information and taking collaborative and coordinated actions. In accordance with international law and UNCLOS, regulation by maritime zone allows the CPUCH to facilitate and improve cooperation between State parties. The CPUCH establishes sufficient firewalls against any kind of creeping jurisdiction that deviates from the jurisdictional framework set up by UNCLOS. The only provision that goes beyond what was explicitly declared by UNCLOS is with respect to the contiguous zone in which State parties may regulate and authorise activities directed at UCH.¹⁰⁶ This provision is still in line with the objective of Article 303(2) of UNCLOS as acknowledged by the ICJ in the Nicaragua v Colombia case, which gives the coastal State ‘the power of control with respect to archaeological and historical objects’, and it was unchallenged and generally accepted by States that negotiated the CPUCH.¹⁰⁷ Any of the acts or activities undertaken on the basis of the CPUCH cannot be used as a legal argument to expand, reinforce or dispute current jurisdictional or sovereign rights as recognised by UNCLOS.¹⁰⁸

8.3 Rights and Jurisdiction over Activities Affecting Archaeological and Historical Objects

The key objective of the legal framework relating to underwater archaeological and historical objects is to provide adequate protection. Central to this framework is for States to regulate activities that affect these objects to ensure that they are not unduly interfered with or damaged. As acknowledged in the earlier discussion, such objects found in the EEZ or on the continental shelf are not natural resources but are human-made resources. Considering the sovereign rights and jurisdiction attributed to the coastal State under UNCLOS, jurisdiction relating to these objects is not automatically attributed to the coastal State. Likewise, they do not fall under the high seas freedoms that have been explicitly preserved for all States in the EEZ. Thus, when a conflict on the attribution and exercise of rights and jurisdiction over these objects arises, it must be resolved based on the principles of Article 59 of UNCLOS and other rules of international law.

The nationality principle is a well-established principle of jurisdiction under international law, and as such, its utilisation by any flag State over its own nationals and ships flying its flag to protect underwater archaeological and historical objects is not a matter of controversy.¹⁰⁹ When a conflict arises between a coastal State and another State with respect to activities affecting these objects in the EEZ, all the relevant factors need to be weighed on a case-by-case basis. The relevant factors would include whether these activities interfere with the exercise of the rights and fulfilment of duties of the relevant States, the duties of all States – the international community – to protect these objects, any subsequent agreement that is applicable to both States, and whether there is a verifiable link between the objects and any State.¹¹⁰ The two legal doctrines that guide the attribution and exercise of rights and freedoms in the EEZ could provide some guidance.¹¹¹ Where the dispute relates to the exploration and exploitation of natural resources, it should probably be resolved in favour of the coastal State; where it relates to the communication freedoms, then the interests of other States – or the international community as a whole – would be favoured. The exercise of such rights and jurisdiction must also follow the due regard obligation and not constitute an abuse of rights.

In order to discuss jurisdictional issues over the activities carried out by a non-national, an important distinction should be made between two forms of activities affecting these objects: those that are ‘directed at’ them and those ‘incidentally affecting’ them. This distinction is only explicitly recognised and defined by the CPUCH for the benefit of UCH.¹¹² UNCLOS only refers to ‘traffic in such objects’ once in Article 303(2), which is an activity directed at these objects. Jurisdiction over other activities that may affect these objects can only be discussed in the general jurisdictional framework under the international law and UNCLOS. The CPUCH limits both activities to those that may ‘physically disturb or otherwise damage’ UCH.¹¹³ It primarily focuses on controlling activities directed at UCH to ensure that they are undertaken in accordance with the archaeological benchmark standards.

8.3.1 Activities Directed at Underwater Archaeological and Historical Objects

Broadly speaking, activities directed at underwater archaeological and historical objects can be defined to mean human activities having these objects as their primary target. It would also be reasonable to add the requirement that these activities should have the potential to, directly or incidentally, physically disturb or otherwise damage these objects. If the activities have no impact on these objects, it would not be justifiable to put a restriction on the conduct of these human activities.¹¹⁴ Activities that have those objects as the main target commonly involve the search for, exploration of, recording of and extraction and removal of items of the object, such as artefacts from shipwrecks.

The coastal State, through its role as the flag State, has the right to regulate and authorise activities directed at the archaeological and historical objects found in its EEZ or on its continental shelf by its nationals and vessels flying its flag. While this right is not explicitly stated in UNCLOS, it could be assumed through the nationality principle, the exclusive flag State jurisdiction over ships and the general duty to protect these objects.¹¹⁵ The CPUCH also requires that State parties to ‘take all practicable measures to ensure that their nationals and vessels flying their flag do not engage in any activity directed at [UCH] in a manner not in conformity with this Convention’.¹¹⁶ This flag State right, in principle, will apply to activities conducted by its nationals in the EEZ of another State and other maritime zones. Therefore, it is primarily the flag State jurisdiction that is applicable to these activities conducted in the EEZ and on the continental shelf provided that the exercise of such right has due regard to the rights and duties of the coastal State and complies with the applicable laws and regulations adopted by the coastal State.¹¹⁷

States have been using the nationality principle to collectively protect archaeological and historical sites found outside of the limits of national jurisdiction. Since its discovery in 1985, the wreck of the Titanic, lying more than 300 miles off the coast of Newfoundland, has been the subject of numerous expeditions that have led to the recovery of thousands of artefacts.¹¹⁸ Puzzled by the lack of clear international regulations and protection, and concerned about the ongoing activities at the site and its deteriorating condition, the United Kingdom and the United States, together with France and Canada, negotiated the Agreement concerning the Shipwrecked Vessel RMS Titanic (Titanic Agreement) in 2003 that will afford the wreck some specific legal protection.¹¹⁹ The Titanic Agreement refers specifically to the relevance of Article 303 of UNCLOS and establishes a protective scheme based on the exercise by State parties of the nationality and territorial principles of jurisdiction.¹²⁰ Another example is the multilateral agreement between Finland, Estonia and Sweden regarding the protection of the passenger ferry M/S Estonia, which sank on the Finnish continental shelf in 1994.¹²¹ State parties to this agreement assume the right to criminalise activities by their nationals that disturb the peace of the resting place of more than 800 victims of the disaster.¹²²

In addition to flag State jurisdiction over activities directed at the archaeological and historical objects, the coastal State has the right to regulate the ‘removal’ of these objects from the contiguous zone.¹²³ This right has been expanded by the CPUCH to the right to regulate and authorise activities directed at UCH by State parties, and by the ICJ to include the power of control with respect to archaeological and historical objects.¹²⁴ Moreover, a number of factors could warrant concurrent jurisdiction of non-flag States in the EEZ or on the continental shelf. The first category of factors includes some of these activities, which, although directed at the underwater archaeological and historical objects, may actually affect the exercise of other rights and jurisdiction by different States. The second category comprises the rights and jurisdiction provided by subsequent agreements, primarily the CPUCH.

The discovery and exploration activities directed at archaeological and historical objects involve the use of acoustic and magnetic remote sensing devices to explore the ocean floor that are often referred to as survey operations.¹²⁵ These devices include side-scan and bathymetric sonar systems to identify seabed protrusions and indentations, sub-bottom profilers to provide cross-sectional analyses of the sub-sea strata to enable identification of material buried in sediment, and magnetometers to locate ferrous material.¹²⁶ Technology development has revolutionised the field of shipwreck search and recovery, and the mapping of the seafloor. For example, marine archaeologists have discovered thousands of wrecks, ranging from Roman and Phoenician vessels to German U-boats and modern fishing vessels, and identified and mapped the layout of the submerged Bronze Age city of Pavlopetri and the Ice Age Scandinavian Mesolithic dwelling remains, graves and fishing structures.¹²⁷ The devices and technology employed for surveying these objects are almost identical to those used in hydrographic survey that deals with the measurement and description of the physical features of the ocean.¹²⁸ The data collected through these operations, depending on the objectives and devices employed, could reveal important information to be used for navigation, exploration and exploitation of the seabed and its natural resources, environmental protection and management, marine science and maritime boundary delimitation.¹²⁹ The survey operations could potentially affect the sovereign rights and jurisdiction attributed to the coastal State in the EEZ and on the continental shelf. However, the question of whether or not survey operations of any kind, including those targeted at underwater archaeological and historical objects, constitute marine scientific research is itself controversial and has been subject to much debate.¹³⁰

Activities directed at archaeological and historical objects could also involve the use of equipment constituting an ‘installation’ or ‘structure’. Under UNCLOS, the coastal State has exclusive right to construct and to authorise and regulate the construction, operation and use of installations and structures either for economic purposes or if such structures interfere with the exercise of its rights in the EEZ or on the continental shelf.¹³¹ Although national and international laws have repeatedly called for protection of these objects and tried to prevent the commercialisation of them, it is unavoidable that some of these activities would be commercially driven, such as treasure hunting and looting. It is unclear whether this type of commercial exploitation would constitute the ‘economic purposes’ as used in UNCLOS, particularly given that these objects are not considered natural resources. However, it would be less controversial for the coastal State to claim jurisdiction if the installation or structure is located in a fishing ground or near an offshore oil platform. In addition, if the installation or structure is located in a busy shipping lane or in other ways interferes with navigation, it may potentially affect the freedom of navigation enjoyed by all States.

Exploration and excavation activities may also involve ‘drilling’ on the continental shelf. UNCLOS has granted the coastal State the exclusive right to authorise and regulate drilling on the continental shelf for all purposes.¹³² Although the term ‘drilling’ is not defined by UNCLOS, the ordinary meaning could encompass digging or blowing, the use of prop-wash deflectors and other similar devices, and perhaps even the use of explosives.¹³³ It would be plausible that the excavation and other activities directed at underwater archaeological and historical objects be subject to the coastal State’s jurisdiction if they probe or otherwise disturb the seabed of the continental shelf.¹³⁴ The use of drilling is further subject to the duty of having due regard to the sovereign rights and jurisdiction of the coastal State. Moreover, the use of drilling should also have due regard to other uses of the seabed, such as the laying of submarine cables and pipelines by all States.¹³⁵

Another potential interference of other rights by the activities directed at underwater archaeological and historical objects relates to the natural marine environment. This close relationship has been acknowledged by the CPUCH when defining UCH and referring to environmental precaution and mitigation considerations.¹³⁶ Underwater archaeology and the natural marine environment, particularly marine life, are closely related, and such objects can be of considerable ecological value.¹³⁷ For example, some objects may have become an artificial reef or be embedded in a fragile marine environment. In some cases, though, the object may be a potential or actual hazard for the marine environment. For example, a large number of sunken warships during the two world wars carried bunker or cargo oils, mercury, munitions, or other poisonous or noxious cargos.¹³⁸ Therefore, any interference with or recovery of such materials from an object will almost inevitably disturb or damage the environment of both the water column and the seabed to varying degrees.¹³⁹ Even though the coastal State’s jurisdiction to protect and preserve the marine environment is limited and may not directly include those activities, it could make a strong claim for their potential interference with the exercise of its sovereign rights over natural resources.¹⁴⁰

It is apparent from the preceding discussion that the coastal State may find legal basis, albeit slim and indirect, to claim concurrent jurisdiction over certain activities directed at archaeological and historical objects found in its EEZ or on the continental shelf if they interfere with its sovereign rights and jurisdiction. A potential, and rather controversial, remedy to this situation would be treating certain activities as marine scientific research that is subject to coastal State jurisdiction in the EEZ and on the continental shelf. The generally accepted position is that marine archaeological activities do not qualify as marine scientific research on the basis that they are directed at the human-made objects rather than the natural environment.¹⁴¹ However, it is arguable that an increasingly common precursor to direct intervention – the use of scientific methodologies – is directed at the seabed and subsoil that are components of the natural marine environment. Importantly, in some cases the data gathered could be of direct significance for the exploration and exploitation of natural resources. As such, these activities may have a significant influence on the sovereign rights and jurisdiction of the coastal State in the EEZ and on the continental shelf. Giving the coastal State rights over certain activities has the advantage of avoiding potential destabilisation of these objects and their natural context, and possible interference in its sovereign rights and jurisdiction.¹⁴²

A second category of concurrent rights and jurisdiction provided by the CPUCH to its State parties is applicable to the UCH. The CPUCH focuses on addressing undesirable threats, such as treasure hunting and other unregulated activities, and regulating the authorised activities targeted at the UCH. State parties are obligated to ensure that any activity directed at UCH is undertaken in accordance with internationally accepted archaeological principles and standards of behaviour.¹⁴³ The fundamental archaeological principle requires that preservation in situ should be the first management option for any UCH, and that activities should be authorised only when justified for scientific or protective purposes.¹⁴⁴

Under the CPUCH, the coastal State in whose EEZ or on whose continental shelf the UCH is located has been given ‘the right to prohibit or authorize any activity directed at such heritage to prevent interference with its sovereign rights or jurisdiction as provided for by international law including the [UNCLOS]’.¹⁴⁵ In addition, the coastal State is required to take measures to prohibit the use of artificial islands, installations and structures under its jurisdiction in the EEZ or on the continental shelf in support of any activity directed at UCH that is not in conformity with the CPUCH.¹⁴⁶ These authorisations echo those under UNCLOS whereby the coastal State may establish jurisdiction over activities directed at UCH that have the potential to affect its sovereign rights and jurisdiction. The CPUCH provides State parties with a concrete basis for taking actions to prevent activities directed at UCH from damaging natural resources that is unlikely to be challenged by any another State.¹⁴⁷

As discussed earlier, under the State cooperation mechanism, the CPUCH creates the roles of Coordinating State, generally the coastal State in whose EEZ or on whose continental shelf the UCH is located, and interested State parties that collectively regulate activities directed at UCH. As such, the coastal State could assume, against another State party, the right to require a non-national or master of a foreign flagged vessel to report to it the discovery or activity directed at UCH in its EEZ or on its continental shelf.¹⁴⁸ Moreover, the coastal State, acting as the Coordinating State, may ‘take all practicable measures’ to prevent any immediate danger to UCH arising from human activities, including those undertaken by a foreign national or vessel.¹⁴⁹

It should be noted that some States assert unilateral jurisdiction over certain archaeological and historical objects found in their EEZs or on their continental shelves, particularly with respect to the contiguous zone.¹⁵⁰ The United States has a well-established national system to afford legal protection to historical, cultural and archaeological resources at sea. The United States adopted the National Marine Sanctuaries Act in 1972, supported by other laws and regulations, that provides for the designation of areas of the marine environment as ‘national marine sanctuaries’ to 200 NM offshore, including heritage sites.¹⁵¹ Activities in each sanctuary are governed by a tailor-made set of regulations that are designed to protect the sanctuary’s particular ‘historical’, ‘cultural’ and ‘archaeological’ resources, and activities that involve the removal of or injury to such resources and any alteration of the seabed are prohibited.¹⁵² As of 2024, the network includes a system of sixteen national marine sanctuaries and the Papahānaumokuākea and Rose Atoll marine national monuments.¹⁵³

8.3.2 Activities Incidentally Affecting Underwater Archaeological and Historical Objects

There is no doubt that human activities may inadvertently cause serious damage and destruction to archaeological and historical objects, even when not directed at them. In particular, activities that have physical contact with the seabed, such as bottom trawling, dredging, dumping, seabed mining, the laying of submarine cables and pipelines, and the construction of wind farms, fixed offshore platforms and other installations, can all have a negative impact on these objects.

The duties to protect and cooperate to protect underwater archaeological and historical objects under UNCLOS have legal implications for all States. As such, all States, including the coastal State, are obligated to take the necessary measures to protect these objects from risks caused by activities undertaken by their own nationals and vessels. However, it is unclear whether the duties to protect these objects would automatically trump the right of other uses of the ocean in circumstances where the existing objects come into conflict with these activities. The CPUCH further strengthened this obligation by requiring all State parties to ‘use the best practicable means at its disposal to prevent or mitigate any adverse effects that might arise from activities under its jurisdiction incidentally affecting [UCH]’.¹⁵⁴ However, it did not define what constitute ‘best practicable means at its disposal’ and left it to each individual State party to decide.¹⁵⁵ Among State parties to the CPUCH, it would be plausible to argue that the State of concern should consult the Coordinating State before conducting any activities that might incidentally affect UCH in the EEZ or on the continental shelf.¹⁵⁶

Shipwrecks, by virtue of their number and physical mass, are the main constituent of underwater archaeological and historical objects, and some have the potential to pose a hazard to navigation in the EEZ.¹⁵⁷ The legal framework that facilitates State intervention is not straightforward when the shipwreck lays in the EEZ. UNCLOS made no reference to the safety of navigation and shipwrecks in general. The flag State, whose vessel could be affected, may not have the immediate right to remove the wreck, since such operations might affect the seabed. The coastal State, even if it has the knowledge of such a hazard to navigation in its EEZ, is not obligated to give appropriate publicity to such dangers, as is required in its territorial sea, let alone a duty to remove the hazard.¹⁵⁸ Moreover, unless the shipwreck poses a threat to cause marine pollution, the coastal State does not have a strong legal basis to take action either. Nevertheless, the coastal State may inform other mariners of such navigational hazards based on good intentions and its due regard obligation to the freedom of navigation. It is worth noting that the coastal State has been given the right to remove or have removed, at the shipowner’s expense, a wreck that poses a hazard to navigation under the 2007 Wreck Removal Convention.¹⁵⁹ The Wreck Removal Convention imposes the primary responsibility for the removal of a hazardous wreck on the shipowner and is created to address more contemporary wrecks.¹⁶⁰ It makes no reference to wrecks that predate the entry into force of the Convention, and it is not entirely clear whether it applies to wrecks of archaeological and historical nature.¹⁶¹

The existence of certain archaeological and historical objects may also pose an obstacle to the development of the seabed in the EEZ. The State that undertakes such development, mainly the coastal State, would have the discretion to find a balance between its duties to protect these objects and its right to explore and exploit the natural resources, to use artificial islands, installations and structures, or to lay submarine cables and pipelines. This balance could only be assessed on a case-by-case basis. Given its sovereign rights over the exploration and exploitation of natural resources, the coastal State would be in a position to decide how these activities should be carried out.¹⁶² Imposing any conditions deriving from the intention to protect these objects, nevertheless, must be balanced with its due regard obligation to the rights of other States. For example, the Danton, a battleship dating from the First World War, was discovered in 2008 by the Fugro geosciences company during a survey for the Galsi gas pipeline project between Algeria and Italy.¹⁶³ Upon confirming its identity, the flag State, France, asked for the site to be protected and requested that the pipeline be redirected 100 yards.¹⁶⁴ A Swedish wooden warship wreck, scuttled in 1715 in the Bay of Greifswald in Germany, was excavated in 2009 to make way for the Nord Stream gas pipeline constructed between Russia and Germany.¹⁶⁵

State parties to the CPUCH are obligated to report discoveries by any national or vessel undertaking activities in the EEZ and on the continental shelf, not just by those who intend to engage in activities directed at UCH.¹⁶⁶ Such report of a discovery will trigger the procedures set out in Articles 9 and 10 relating to notification, consultation and protection, as well as the procedures for relevant States to assume the role as Coordinating State and interested State parties.¹⁶⁷ There are now a number of States, including Australia, China, Greece and Norway, that require their nationals to report, and to provide subsequent treatment, of UCH discovered incidentally during any offshore operation.¹⁶⁸ The imposition of this reporting obligation could bring these UCH to the relevant States’ attention and offer them the opportunity to provide effective means to prevent or mitigate inadvertent damage during these development activities.

The coastal State may also designate, through the International Maritime Organization (IMO), a Particular Sensitive Sea Area (PSSA) to protect the archaeological and historical objects found in its EEZ or on its continental shelf.¹⁶⁹ A PSSA is ‘an area that needs special protection through action by IMO because of its significance for recognized ecological, socio-economic, or scientific attributes where such attributes may be vulnerable to damage by international shipping activities’.¹⁷⁰ The presence of ‘significant historical and archaeological sites’ would qualify the social, cultural and economic criteria that is required for such designation and justify appropriate associated protective measures for the area.¹⁷¹ The United States, for example, has designated the cultural heritage Papahānaumokuākea Marine National Monument (North-western Hawaiian Islands or NWHI) as a PSSA through IMO.¹⁷² On justifying the social, cultural and economic criteria, it was highlighted that the NWHI is rich in historical and archaeological heritage resources that are rare, representative of broad themes of maritime history, and a testimony to the uniqueness of Pacific seafaring history.¹⁷³ It should be noted that the establishment of PSSAs for their historical and/or archaeological significance would need to be examined within the context of the general duties to protect these objects under Article 303 of UNCLOS, and the regulations under the CPUCH. And the associated protective measures are designed to prevent damage to these objects by international shipping activities.

These potentially negative impacts on the archaeological and historical objects are expected to grow with the intensive use of the EEZ and the continental shelf for human activities. The central role in avoiding and minimising these impacts rests with the relevant national and flag States. In most situations, it is the coastal State that shares such a role. Should the coastal State have relevant information and knowledge of the presence of these objects in its EEZ or on its continental shelf, it could employ holistic marine control procedures, including marine spatial planning and environmental impact assessment, to manage other potential competing activities.¹⁷⁴

8.4 Settlement of Disputes

It is apparent from the preceding discussion that there are plenty of opportunities for disputes to arise between States relating to the underwater archaeological and historical objects found in the EEZ or on the continental shelf. For example, disputes could arise concerning the interpretation and application of whether a certain State has breached the general duties to protect and cooperate to protect these objects, whether the coastal State may exercise enforcement jurisdiction over a foreign vessel that caused pollution due to treasure salvage activities, or whether the coastal State could deny consent to the delineation of a foreign pipeline to avoid damaging a heritage shipwreck. Given the differences between UNCLOS and the CPUCH on coastal State rights in the contiguous zone, and more generally the inconsistent State practices and interpretations, there could be disputes concerning the relationship between these two treaties and whether any of their provisions are considered customary law.

As a matter of general international law, and the provisions of UNCLOS, States are obligated to settle disputes between them by peaceful means.¹⁷⁵ For disputes concerning the interpretation or application of UNCLOS, State parties may choose to accept the jurisdiction of the International Tribunal for the Law of the Sea (ITLOS), the International Court of Justice, an Annex VII arbitral tribunal or a special Annex VIII arbitral tribunal.¹⁷⁶ If a State does not make a choice of procedures, it is deemed to have accepted the Annex VII arbitration.¹⁷⁷ The dispute settlement system is fundamentally consensual in the sense that State parties to the dispute could choose the means and procedures by agreements.¹⁷⁸ Under UNCLOS, this system is reinforced by a compulsory dispute settlement procedure when the State parties to the dispute cannot reach settlement by recourse to the means of their choice.¹⁷⁹ In this case, any party to the dispute may submit their dispute to the same procedure as accepted by both parties, or to Annex VII arbitration.¹⁸⁰

To date, there are two international cases included claims relating to underwater archaeological and historical objects. ITLOS recognised, indirectly through accepting the Respondent’s action to invoke domestic law, the exclusive right of the coastal State over the UCH located in its internal waters and the territorial sea in the M/V Louisa case.¹⁸¹ ICJ declared the customary law status of Article 303(2) and expended its interpretation of coastal States’ right over these objects to reflect the development by the CPUCH and State practice.¹⁸²

CPUCH also requires State parties to settle their disputes concerning its interpretation or application through peaceful means of their own choice.¹⁸³ When a dispute arises, State parties to the dispute shall negotiate in good faith before submitting it to mediation by UNESCO by agreement, or, if it cannot be thus settled, to the provisions set out in Part XV of UNCLOS, to be applied mutatis mutandis, whether or not the parties to the dispute are also a party to UNCLOS.¹⁸⁴ A State party to CPUCH, even if it is not a party to UNCLOS, may use the same procedure established by UNCLOS to declare which court or tribunal jurisdiction it accepts.¹⁸⁵

Part XV clearly stated that the UNCLOS court or tribunal shall ‘have jurisdiction over any dispute concerning the interpretation or application of an international agreement related to the purposes of this Convention, which is submitted to it in accordance with the agreement’.¹⁸⁶ The incorporation of the dispute settlement procedures under UNCLOS into the provision made by CPUCH for dispute settlement could be controversial. It effectively obliges States that are not party to UNCLOS to be subject to its dispute settlement mechanism. States are often reluctant to accept compulsory dispute settlement mechanisms before the dispute arises. This potential implication for States that are not party to UNCLOS may affect their consideration to ratify the CPUCH. Indeed, both Türkiye and Venezuela voted against the CPUCH citing this concern.¹⁸⁷

8.5 Conclusion

Underwater archaeological and historical objects were not genuinely considered when the law of the sea was negotiated and codified at the Third Conference. This was largely due to the lack of understanding of underwater archaeology as a scientific discipline, as well as the underestimated value of and threats to these objects. The drafting history and final wording of Article 303 bears witness to the limited scope ultimately accepted. During the past few decades, the international scientific community, with the support of a number of interested States, insisted on the need to delineate a new legal canvas to adequately protect underwater cultural heritage for the benefit of all humankind. In 2001, a new legal regime was established by CPUCH, completing and resolving some of the legal gaps left by UNCLOS.

UNCLOS set out the general duties of all States to protect and cooperate to protect archaeological and historical objects found at sea, but provided no details on how States should fulfil such duties. The CPUCH provides some clarifications with respect to the rights and jurisdiction over UCH found in the EEZ or on the continental shelf. First, it explicitly stated that the coastal State may regulate and authorise activities directed at UCH in the contiguous zone, going beyond the scope recognised by UNCLOS.¹⁸⁸ Second, it clearly recognised that the activities directed at UCH found in the EEZ or on the continental shelf could have the potential to affect the sovereign rights and jurisdiction of the coastal State, and gave the coastal State the right to prohibit or authorise such activities.¹⁸⁹ Third, it created the role of the Coordinating State that gives the coastal State a potentially prominent role in respect of UCH in the EEZ or on the continental shelf, such as taking all practical measures to prevent immediate threats to UCH.¹⁹⁰ Nevertheless, both legal frameworks place their reliance on the nationality principle of jurisdiction, which means the support of flag States, particularly the handful that have deepwater technological capability, is absolutely crucial if the framework is to succeed in fulfilling its primary objective to protect these objects.

CPUCH shows neutrality regarding any ‘creeping jurisdiction’ temptation that may arise when interpreting, evoking or applying its provisions.¹⁹¹ Except in regards to the contiguous zone, it is hard to argue that any provisions of the CPUCH could be used to support any excessive claim. Moreover, Article 59 of UNCLOS may help to bolster the legitimacy of the role afforded by the CPUCH to the coastal State as the Coordinating State for CUH found in the EEZ or on the continental shelf. The goal of the CPUCH is to protect underwater heritage by ensuring that all activities directed at UCH are undertaken in accordance with benchmark archaeological standards. The coastal State, when fulfilling the role of a Coordinating State, acts on behalf of the State parties as a whole and represents the collective interests of the international community.¹⁹²

State practice during the past four decades shows that many coastal States have been expanding their rights over the contiguous zone by adding legislative powers to protect underwater heritage, a practice that generally has been accepted.¹⁹³ Nonetheless, extending this jurisdiction beyond the outer limit of the contiguous zone, as several States have done, is not yet supported by general State practice.¹⁹⁴ However, the coastal State, based on the connection and potential impacts on is sovereign rights and jurisdiction, as well as fulfilling its general duties to protect, may find legal basis to claim concurrent jurisdiction over certain activities that affect the archaeological and historical objects found in its EEZ or on the continental shelf.