MILITARY ACTIVITIES IN THE EXCLUSIVE ECONOMIC ZONE

Wolff Heintschel von Heinegg*

Published in: 67 Belgian Review of International Law 45-64 (2014)

1. – INTRODUCTION

The legitimacy and legality of military activities within the Exclusive Economic Zone
(EEZ) of other States 1 has been a contentious issue since the beginning of the
deliberations of the Third United Nations Conference on the Law of the Sea. It continues
to occupy policy makers, naval forces and international lawyers. Hence, it is not
surprising that the subject has been written upon extensively. 2 According to the position
taken here, the law of the sea, in particular the 1982 United Nations Convention on the
Law of the Sea (UNCLOS)3, does not prohibit most military activities within a foreign
EEZ but rather explicitly preserves the right to conduct military operations and to use a
foreign EEZ for a variety of other military purposes. It is important to re-emphasize that
the claims of some coastal States aimed at restricting or prohibiting such activities have
no foundation in the international law of the sea as it stands today. It must be borne in
mind that the benefit of preserving the right of using the sea, including the EEZ of other
States, for military purposes is not limited to power projection or to considerations of a
genuinely defence or security policy character. More than 85 per cent of the World’s
imports and exports are transported via the oceans. There is no national economy,
including that of land-locked States, which is not highly dependent upon the freedom of
navigation and commerce. Merchant shipping is threatened not only by pirates and
terrorists, but also by unlawful governmental measures. Moreover, the seas are used by

* Professor of Public Law, especially Public International Law, European Law and Foreign Constitutional
Law, Europa-Universität Viadrina, Frankfurt (Oder), Germany.
1 This article does not deal with restrictions on innocent passage, transit passage and archipelagic sea

lanes passage or with other excessive maritime claims. For an assessment of such claims see J. Ashley
Roach and Robert W. Smith, Excessive Maritime Claims, passim (3rd ed., Leiden/Boston 2012).
2 Boleslaw A. Boczek, “Peacetime Military Activities in the Exclusive Economic Zone of Third Countries”,

19 Ocean Development and International Law, 445-468, 1988; Robin R. Churchill and A. Vaughan Lowe,
The Law of the Sea, p. 421 et seq. (3rd ed., Manchester 1999); Roach and Smith (supra note 1), p. 379 et seq.;
James Kraska, Maritime Power and the Law of the Sea, p. 221 et seq. (Oxford 2011); Natalie Klein, Maritime
Security and the Law of the Sea, p. 46 et seq. (Oxford 2011); Raul (Pete) Pedrozo, “Military Activities in the
Exclusive Economic Zone: East Asia Focus”, 90 International Law Studies 514-543, 2014; all with further
references.
3 UN Doc. A/CONF.62/121 of 10 December 1982; 1833 UNTS 396; as at 10 October 2014: 166 member

States.
 2

organized crime for smuggling, including drugs, or the illicit transport of migrants and
refugees. Recent incidents in the Mediterranean have shown that the financial profit for
the criminals is considerable, as are the costs involved for the States of destination.
Finally, there is the neglected issue of cyber security at sea. More than 95% of the
World’s data, voice and video traffic travel through submarine communications cables 4,
which must be protected against wilful destruction or other detrimental interferences. 5
All these threats cannot be countered by law enforcement agencies alone. Hence, there is
an undisputable need for the deployment and operation of military forces at sea,
including in the EEZ of third States.

The present article is intended as a modest assessment of the most important legal
issues relevant to military activities in the EEZ of other States. To this end, a short
overview of the various military activities at sea is given, which will be followed by an
equally short summary of the practice of those States that endeavour to restrict or
prohibit foreign military activities in their EEZ. That practice will then be analysed in the
light of UNCLOS. The final section serves as a reminder that, under the law of naval
warfare and neutrality at sea, the exercise of belligerent rights is not limited to the
littoral waters of the parties to an international armed conflict and to the high seas in a
technical sense. Rather, the region of belligerent operations includes the EEZ of neutral
States.

2. – MILITARY ACTIVITIES AT SEA

Military activities at sea range from navigation of warships or aviation of military

aircraft, marine data collection, naval exercises, manoeuvres, demonstrations and sea
basing, to emplacement of military devices, maritime law enforcement operations, other
maritime security operations (including counter-terrorism operations) and the exercise
of belligerent rights at sea. 6 Military activities at sea may be designed to only serve
national interests, but quite often they are undertaken in pursuit of international ends as
well. In view of the wide variety of such activities, it is impossible to apply to them an
all-embracing definition. The common denominator is the ‘military’ character. All these
operations are carried out by military forces, i.e. by members of the regular armed
forces, surface warships, submarines and military aircraft, be they manned or
unmanned. For the purposes of this article, operations conducted by other State ships or
State aircraft operated by the coast guard, customs authorities, fisheries protection
agencies or secret service are excluded from the term ‘military activities’, although they

4 Laurence R. Wrathall, “The Vulnerability of Subsea Infrastructure to Underwater Attack: Legal

Shortcomings and the Way Forward”, 12 San Diego Int’l L.J., 223-261, at 228, 2010-2011. See also Mick P.
Green / Douglas R. Burnett, “Security of International Submarine Cable Infrastructure – Time to Rethink?”,
in: Myron H. Nordquist et al. (eds.), Legal Challenges in Maritime Security, pp. 557-583, at p. 559
(Leiden/Boston 2008).
5 For a recent assessment of the legal issues of the protection of submarine communications cables see

Wolff Heintschel von Heinegg, “Protecting Critical Submarine Cyber Infrastructure: Legal Status and
Protection of Submarine Communications Cables under International Law”, in: Katharina Ziolkowski (ed.),
Peacetime Regime for State Activities in Cyberspace, pp. 291-318 (Tallinn 2013).
6 For an excellent and comprehensive assessment of maritime security operations see James Kraska and

Raul Pedrozo, International Maritime Security Law, passim (Leiden/Boston 2013). With regard to the wide
variety of military activities in foreign EEZ areas see the references supra note 2.
 3

may be considered maritime security operations. The reason for this exclusion is not
only the formal aspect of the non-military character of the respective State organs. It
resides also in the fact that, in most cases, operations by those State organs or agencies
will be limited to the littoral waters, including the EEZ, of their respective State and,
probably with the exception of the secret services, will not extend to the high seas or the
littoral waters, including the EEZ, of another State.

3. – STATES PROHIBITING OR RESTRICTING MILITARY ACTIVITIES IN THEIR EEZ

Although the use of the sea for purely navigational purposes does not seem to pose any
legal problems, some States endeavour to restrict operations of foreign warships not
merely in their territorial sea or, where applicable, their archipelagic waters, but also in
their EEZ. The mere presence of foreign warships and military aircraft is viewed with
suspicion because they are considered a threat or believed to be engaged in activities
detrimental to the respective coastal State’s economic or security interests. In particular,
some coastal States are not prepared to tolerate unauthorized or un-notified naval
manoeuvres and exercises. Similar restrictions and prohibitions are applied to marine
data collection (including surveys) and even to the use of the airspace above the
respective EEZ. Coastal State constraints on foreign military activities in the EEZ have
been summarized as including:7
- “restrictions on ‘non-peaceful uses’ of the EEZ without consent , such as weapons
exercises;
- limitations on military marine data collection (military surveys) and hydrographic
surveys without prior notice and/or prior consent;
- requirements for prior notice and/or consent for transits by nuclear-powered vessels or
ships carrying hazardous and dangerous goods, such as oil, chemicals, noxious liquids,
and radioactive material;
- limiting warship transits to innocent shipping;
- prohibitions of ISR operations (intelligence collection) and photography;
- requiring warships to place weapons in an inoperative position prior to entering the
contiguous zone;
- restrictions on navigation and overflight through the EEZ;
- prohibitions on conducting flight operations (launching and recovery of aircraft) in the
contiguous zone;
- requiring submarines to navigate on the surface and show their flag in the contiguous
zone;
- requirements for prior permission for warships to enter the contiguous zone or EEZ;
- asserting security jurisdiction in the contiguous zone or EEZ;
- application of domestic environmental laws and regulations; and
- requirements that military and other State aircraft file flight plans prior to transiting the
EEZ.”

The following table gives an overview of the claims of 18 coastal States that restrict or
prohibit certain foreign military activities within their EEZ. The respective claims are in
most cases laid down in domestic legislation. 8 For the purposes of this article it suffices,

7Pedrozo (supra note 2), at 524.

8National legislation and regulations on the extent and uses of coastal sea areas are submitted to the
United Nations. An overview is available at:
http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/regionslist.htm. They are periodically
published in: United Nations Division for Ocean Affairs and the Law of the Sea – Office of Legal Affairs, Law
 4

however, to rely on the declarations made by States upon signature or ratification of

UNCLOS9 and on the information provided by the Maritime Claims Reference Manual10
and the excellent publication by Roach and Smith. 11

Table of coastal State claims regarding foreign military activities in their EEZ:12

State Claims
Bangladesh* “The Government of the People's Republic of Bangladesh understands that
the provisions of the Convention do not authorize other States to carry out in
the exclusive economic zone and on the continental shelf military exercise or
manoeuvres, in particular, those involving the use of weapons or explosives,
without the consent of the coastal State.”13
Brazil* “The Brazilian Government understands that the provisions of the Convention
do not authorize 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.”14
Burma Claims “exclusive rights and jurisdiction” for, inter alia, “the convenience of
(Myanmar) shipping or for any other purpose”.15
Cape Verde* “In the exclusive economic zone, the enjoyment of the freedoms of
international communication, in conformity with its definition and with other
relevant provisions of the Convention, excludes any non-peaceful use without
the consent of the coastal State, such as exercises with weapons or other
activities which may affect the rights or interests of the said state; and it also
excludes the threat or use of force against the territorial integrity, political
independence, peace or security of the coastal State.”16
China PR - Claims jurisdiction with regard to security, customs, fiscal, health and
immigration laws and regulations
- Claims all surveying and mapping activities to require approval
- Does not distinguish between marine scientific research and military
surveys
- Does not recognize airspace above the EEZ as international17
Guyana* - Claims jurisdiction in the airspace above the EEZ
- Claims authority to establish sea lanes, traffic separation schemes,
etc., for foreign ships to pass through designated areas18
India* “The Government of the Republic of India understands that the provisions of
the Convention do not authorize other States to carry out in the exclusive
economic zone and on the continental shelf military exercises or manoeuvres,

of the Sea Bulletin, which is also available at:

http://www.un.org/Depts/los/doalos_publications/los_bult.htm (last visited on 16 January 2015).
9 The declarations are available at:

http://www.un.org/Depts/los/convention_agreements/convention_declarations.htm (last visited on 16

January 2015.
10 U.S. Department of Defense Representative for Ocean Policy Affairs, Maritime Claims Reference Manual,

available at: http://www.jag.navy.mil/organization/code_10_mcrm.htm (last visited on 16 January 2015).

11 Roach and Smith (supra note 1). See also U.S. Department of Defense, Freedom of Navigation (FON)

Report for Fiscal Year (FY) 2013 (Washington, D.C., 6 March 2014).
12 States marked with * are parties to UNCLOS.
13 Declaration made upon ratification on 27 July 2001. See also Roach and Smith (supra note 1), p. 383.
14 Declaration made upon signature on 10 December 1982. An identical declaration was made upon

ratification on 22 December 1988. See also Roach and Smith (supra note 1), p. 379 et seq.
15 Roach and Smith (supra note 1), p. 171
16 Declaration made upon signature on 10 December 1982 and confirmed upon ratification on 19 August

1987.
17 Roach and Smith (supra note 1), p. 384 et seq.
18 Roach and Smith (supra note 1), p. 172.
 5

in particular those involving the use of weapons or explosives without the

consent of the coastal State.”19
Iran Claims the right to prohibit “foreign military activities and practices,
collection of information and any other activity inconsistent with the rights
and interests" of Iran in the EEZ20
Kenya* Claims the right to regulate passage of warships and military exercises in EEZ,
but does not set forth any regulation21
Korea DR Claims a security zone of 50nm and prohibits taking of photographs and
Surveys22
Malaysia* “The Malaysian Government also understands that the provisions of the
Convention do not authorize other States to carry out military exercises or
manoeuvres, in particular those involving the use of weapons or explosives in
the exclusive economic zone without the consent of the coastal State.”23
Maldives* Requires “all foreign vessels” to obtain prior permission prior to entry into
EEZ24
Pakistan* “It is the understanding of the Government of the Islamic Republic of Pakistan
that the provisions of the Convention on the Law of the Sea do not in any way
authorize the carrying out in the exclusive economic zone and in the
continental shelf of any coastal State military exercises or manoeuvres by
other States, in particular where the use of weapons or explosives is involved,
without the consent of the coastal State concerned.”25
Freedom of navigation and overflight is recognized but foreign state aircraft
must file flight plans with civil aviation authority26
Syria Claims security jurisdiction in contiguous zone27
Thailand* “The Government of the Kingdom of Thailand understands that, in the
exclusive economic zone, enjoyment of the freedom of navigation in
accordance with relevant provisions of the Convention excludes any non-
peaceful use without the consent of the coastal State, in particular, military
exercises or other activities which may affect the rights or interests of the
coastal State; and it also excludes the threat or use of force against the
territorial integrity, political independence, peace or security of the coastal
State.”28
Uruguay* “In the exclusive economic zone, enjoyment of the freedom of international
communication in accordance with the way it is defined and in accordance
with other relevant provisions of the Convention excludes any non-peaceful
use without the consent of the coastal State - for instance, military exercises
or other activities which may affect the rights or interests of that State; and it
also excludes the threat or use of force against the territorial integrity,
political independence, peace or security of the coastal State.”29
Venezuela No formal claims, but challenging presence of foreign warships and military
aircraft30
Viet Nam* Prohibits any act against the sovereignty, defence and security of Viet Nam31

19 Declaration made upon ratification on 29 June 1995. See also Roach and Smith (supra note 1), p. 172.
20 Roach and Smith (supra note 1), p. 382 et seq.
21 Maritime Claims Reference Manual (supra note 9).
22 Roach and Smith (supra note 1), p. 132; Maritime Claims Reference Manual (supra note 9). See also

Pedrozo (supra note 2), at 539 et seq.

23 Declaration made upon ratification on 14 October 1996.
24 Roach and Smith (supra note 1), p. 407 et seq.
25 Declaration made upon ratification on 26 February 1997. See also Roach and Smith (supra note 1), p.

172.
26 Maritime Claims Reference Manual (supra note 9).
27 Roach and Smith (supra note 1), p. 21.
28 Declaration made on 15 May 2011. See also Roach and Smith (supra note 1), p. 390 et seq.
29 Declaration made upon signature on 10 December 1982 and confirmed upon ratification on the same

date. See also Roach and Smith (supra note 1), p. 380.
30 Roach and Smith (supra note 1), p. 352.
31 Maritime Claims Reference Manual (supra note 9).
 6

It may be added that several States claim a territorial sea of 200 nm (Benin, Ecuador, El
Salvador, Peru and Somalia)32 or of 30 nm (Togo).33 These States obviously limit foreign
ships, including warships, to innocent passage, which excludes any of the activities
enumerated in Article 19 (2) UNCLOS, such as military exercises (Art. 19(2)(b)) or
survey activities (Art. 19(2)(j)). According to Article 20 UNCLOS, submarines and other
underwater vehicles would be required to navigate on the surface and to show their flag.
The airspace above would qualify as national airspace that may be entered with prior
consent only.34 Claims of a 200 nm territorial sea are unfounded and in clear violation of
Article 3 UNCLOS and of corresponding customary international law, but are
nonetheless relevant for present purposes since they implicitly restrict or prohibit
foreign military activities in the sea area that would otherwise, and subject to a
proclamation, constitute the EEZ of the respective coastal State. It follows that the total
number of States restricting or prohibiting military activities off their coasts up to 200
nm from their baselines would amount to 24. It is, however, far from clear whether the
excessive claims to a 200 nm territorial sea are in fact maintained (e.g. in the case of
Somalia) or whether the coastal States are indeed determined to enforce them vis-à-vis
foreign warships and military aircraft.

Before assessing the compatibility of the claims referred to with UNCLOS, a short
remark on Air Defence Identification Zones (ADIZ)35 is appropriate because, at first
glance, they seem to unduly interfere with freedom of aviation in international airspace.
If an ADIZ has been established, foreign aircraft are required to identify themselves and
to submit to certain conditions and procedures. If necessary, they may be intercepted.
This applies only to aircraft that seek entry into the national airspace of the State having
established the ADIZ. The establishment of an ADIZ is a customary right. 36 An ADIZ does
not violate the obligation under Article 5 of the 1944 Chicago Convention 37 to grant non-
scheduled flights (as distinguished from scheduled flights) the right to fly over the
territory of a State party. The purpose of an ADIZ is to verify the character and further
details of aircraft that wish to enter national airspace. It is not a prohibition or denial of
the right granted by Article 5 of the Chicago Convention because it does not require
aircraft on non-scheduled flights to obtain a prior permission. And even if it were
considered a conditional prohibition or an indirect requirement of obtaining prior
permission, it would qualify as a customary exception to Article 5. It is important to bear
in mind that, under an ADIZ, foreign aircraft may not be subjected to the said conditions
and procedures, if they do not intend to enter national airspace. Hence, the 2013 Chinese
ADIZ requiring aircraft to report flight plans and to identify themselves although not
seeking entry into Chinese national airspace, is in excess of what is permissible under
customary international law and, thus an undue infringement on the freedom of aviation
in international airspace. 38

32 Roach and Smith (supra note 1), p. 144 et seq.

33 Roach and Smith (supra note 1), p. 146.
34 It is important to note that El Salvador and Peru do not limit the rights of navigation and overflight.
35 See, inter alia, J. Ashley Roach, “Air Defence Identification Zones”, in: Max Planck Encyclopedia of

International Law – online.

36 Roach rightly refers to the fact that the “unilateral claims have not been objected to” and that “it may be

presumed that the right to declare an ADIZ is now recognized as a right under customary international
law”, although there “are no treaty provisions governing the establishment or operation of ADIZs per se.
See Roach (supra note 35), MN 5.
37 Convention on International Civil Aviation, Chicago, 7 December 1944, 15 UNTS 295.
38 Roach (supra note 35), MN 13.
 7

4. – UNCLOS PROVISIONS

The EEZ is a sea area sui generis, which must be distinguished from the territorial sea
and from the high seas. 39 The coastal State enjoys certain ‘sovereign rights’ – as
distinguished from ‘sovereignty’ – and a degree of jurisdiction that are functionally
limited to the purposes enumerated in Article 56 (1) UNCLOS (viz. the exploration and
exploitation of natural resources; the operation of artificial islands; marine scientific
research, and; the protection of the marine environment) . The rights and duties of other
States in the EEZ are regulated predominantly in Article 58 UNCLOS. According to the
position taken here, the legal framework of the EEZ as established and developed by
UNCLOS reflects customary international law and, therefore, it is binding upon States
that have not yet ratified, or acceded to, the Convention. 40

Crucially, Article 58 (2) UNCLOS provides that “Articles 88 to 115 and other pertinent
rules of international law apply to the exclusive economic zone in so far as they are not
incompatible with this Part.”

It follows first that the peaceful uses clause of Article 88 UNCLOS must be observed in
the EEZ as in the high seas, both by the coastal State and by other States. Despite
allegations to the contrary by some of the States listed above, the “determination of
whether an activity is ‘peaceful’ is to be made under Article 2 (4) of the UN Charter.”41
This means that a military activity in a foreign EEZ would be in breach of the clause, if it
qualified as an unjustifiable threat or use of force. While any activity based upon a
decision by the UN Security Council under Chapter VII UN Charter or on the inherent
right of individual or collective self-defence under Article 51 UN Charter would be
permissible, this might not hold true for naval manoeuvres, exercises and
demonstrations, which may be perceived of as a threat of force. 42 However, the mere
fact that a State deploys its naval forces to the EEZ of another State with a view to
projecting its sea power to the respective coastline or sea area is, as such, not sufficient
to qualify as a prohibited threat of unlawful force. Military manoeuvres and exercises,
even if perceived of as a ‘show of force’ by the coastal State cannot be considered a
threat of force either because they lack the necessary element of coercion. It may be
recalled that, in the Nicaragua Case, the International Court of Justice ruled that U.S.
naval manoeuvres near the Nicaraguan borders, “in the circumstances in which they

39 This follows from Article 55 UNCLOS (“specific legal regime”). See, inter alia, Dolliver Nelson, “Exclusive
Economic Zone”, in: Max Planck Encyclopedia of International Law - online, para. 14; Pedrozo (supra note
2), at 518.
40 See International Court of Justice, Case concerning the Continental Shelf (Libyan Arab Jamahiriya/Malta),

Judgment of 3 June 1985, ICJ Reports 13, 33, para. 34: “It is in the Court’s view incontestable that […] the
institution of the exclusive economic zone […] is shown by the practice of States to have become part of
customary law.” It may be added that States not party to UNCLOS, like the U.S. or Venezuela, have
proclaimed an EEZ.
41 Kraska (supra note 2), p. 257. See also Pedrozo (supra note 2), at 534.
42 See, inter alia, Dale Stephens and Tristan Skousgaard, “Naval Demonstrations and Manoeuvres”, in: Max

Planck Encyclopedia of International Law - online, para. 10 et seq.

 8

were held, [did not constitute] on the part of the United States a breach, as against
Nicaragua, of the principle forbidding recourse to the threat or use of force.” 43

Second, the reference, in Article 58 (2) UNCLOS, to the general provisions governing the
use of the high seas enshrined in Articles 88 to 115 proves that, according to the
Convention, the legality of certain military activities in a foreign EEZ has been expressly
recognized. In particular, it follows that the provisions on the rights of warships (and
other State ships) to interfere with foreign vessels applicable to the high seas also apply
in the EEZ. Any activity in a foreign EEZ that can be based upon Article 110 UNCLOS
(right of visit) or on the provisions on piracy (Articles 100-107, in particular Article 105
UNCLOS), actions against slave trade (Article 99 UNCLOS) or on the suppression of
unauthorized broadcasting (Article 109 UNCLOS) is therefore lawful without any need
for prior authorization by the coastal State. The same holds true for the capture of a
vessel that has been pursued in accordance with Article 111 UNCLOS (‘hot pursuit’). The
obligation, under Article 108 (1) UNCLOS, to cooperate in the suppression of illicit traffic
in narcotic drugs and psychotropic substances applies to the high seas and, through
Article 58 (2) UNCLOS, to the EEZ. The rights conferred upon States by the 1988
Convention 44 can be exercised in a foreign EEZ and there is no requirement of a prior
authorization by the coastal State either, unless the coastal State has rights beyond the
outer limit of the territorial sea (e.g., hot pursuit or exercise of contiguous zone
jurisdiction).45
Accordingly, UNCLOS itself expressly recognizes the legality of certain military activities
in the EEZ of another State. 46

Third, the fact that, by the reference to Articles 88 to 115, only certain military activities
are expressly recognized may not be misunderstood as excluding a contrario other
military activities, such as manoeuvres, exercises, warning zones47 or the emplacement
of military devices in the EEZ.48 Indeed, as seen, Article 58 (2) UNCLOS also refers to
“other pertinent rules of international law” that apply within the EEZ, i.e. in particular
customary international law. In this context it has been rightly stated that “before the
Conference, it was generally accepted that the freedoms of movement and
communication included activities that were ancillary to the exercise of said freedoms.
Thus not only was the freedom of navigation of warships recognized, but so were other
related activities such as the holding of military exercises. There is no evidence that this
position under customary law has changed.”49 Hence, military activities that have since
long been recognized under customary international law have not been derogated by
UNCLOS but preserved by the reference to “other pertinent rules of international law”,
provided they do not unduly interfere with the functionally limited rights enjoyed by the
coastal State.

43 International Court of Justice, Case concerning Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. United States of America), Judgment of 27 June 1986, ICJ Reports, 14, 118, para.
227, 1986.
44 United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, Vienna,

20 December 1988, 1582 UNTS 95.

45 For the responses to the Declaration by Brazil, according to which prior authorization is required, see

Roach and Smith (supra note 1), p. 392 et seq.

46 See also Kraska (supra note 2), p. 245; Pedrozo (supra note 2), at 517 et seq.
47 See Eduard Somers, “Warning Zones at Sea”, in: Max Planck Encyclopedia of International Law – online.
48 See Kraska (supra note 2), p. 279 et seq.
49 David J. Attard, The Exclusive Economic Zone in International Law, p. 86 (Oxford 1987).
 9

Nor have the claims referred to above contributed to the emergence of a new rule of
customary international law according to which the coastal State would be entitled to
limit or prohibit foreign military activities in its EEZ. Even if the practice of those coastal
States claiming a territorial sea in excess of 12 nm were factored in, the practice of 24
coastal States is hardly sufficient to qualify as a ‘general’ or sufficiently uniform practice
that could contribute to the emergence of a (new) rule of customary international law.
Moreover, those claims have not remained without objections. For instance, upon
accession to UNCLOS, the Federal Republic of Germany declared: “According 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.”50 Similar declarations were deposited by Italy51, the Netherlands52 and
the United Kingdom.53 The U.S. has persistently protested against those claims and
challenged them under its Freedom of Navigation Programme.54 Finally, it has been
rightly observed that “numerous states conduct military exercises and operations in
foreign EEZs, including Australia, Russia, China and Japan.”55 Hence, it is safe to conclude
that according to “other pertinent rules of international law” and, thus, according to
UNCLOS, military activities continue to be lawful in a foreign EEZ and that there is no
requirement for a prior authorization by the coastal State, unless those activities impede
upon, or are contrary to, the exclusive sovereign right or the jurisdiction the coastal
State enjoys according to UNCLOS.

Some coastal States have taken the view that they have, in their EEZ, ‘residual rights’
because, according to them, military activities have not been expressly regulated in
UNCLOS. Upon signature and ratification of UNCLOS Cape Verde declared: “The
regulations of the uses or activities which are not expressly provided for in the
Convention but are related to the sovereign rights and to the jurisdiction of the coastal
State in its exclusive economic zone falls within the competence of the said State,
provided that such regulation does not hinder the enjoyment of the freedoms of
international communication which are recognized to other States.” 56 A similar

50 Federal Republic of Germany, Declaration made upon accession on 14 October 1994.

51 Italy, Declaration made upon signature on 7 December 1984 and confirmed upon ratification on 13
January 1995: “According 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 right to obtain notification of military exercises or manoeuvres or to authorize them.”
52 Kingdom of the Netherlands, Declaration made upon ratification on 28 June 1996: “The Convention does

not authorize the coastal State to prohibit military exercises in its exclusive economic zone. The rights of
the coastal State in its exclusive economic zone are listed in article 56 of the Convention, and no such
authority is given to the coastal State. In the exclusive economic zone all States enjoy the freedoms of
navigation and overflight, subject to the relevant provisions of the Convention.”
53 United Kingdom of Great Britain and Northern Ireland, Declaration made upon accession on 25 July

1997: “The United Kingdom considers that declarations and statements not in conformity with articles
309 and 310 include, inter alia, the following: […] those which are not in conformity with the provisions of
the Convention relating to the exclusive economic zone or the continental shelf, including those which
claim coastal state jurisdiction over all installations and structures in the exclusive economic zone or on
the continental shelf, and those which purport to require consent for exercises or manoeuvres (including
weapons exercises) in those areas”.
54 For the U.S. protests and assertions see Roach and Smith (supra note 1), pp. 144 et seq., 154 et seq., 169

et seq., 380 et seq.

55 Kraska (supra note 2), p. 269.
56 Cape Verde, Declaration made upon signature on 10 December 1982 and confirmed upon ratification on

19 August 1987.
 10

declaration was made by Uruguay.57 Germany58 and Italy59 rejected the claim of residual
rights as well as the Netherlands that declared: “The coastal state does not enjoy
residual rights in the exclusive economic zone. The rights of the coastal state in its
exclusive economic zone are listed in article 56 of the Convention, and cannot be
extended unilaterally.”60 In view of the fact that military activities “were accounted for in
the negotiations as part of freedom of navigation and other internationally lawful uses of
the sea”61, they can under no circumstances be considered as ‘residual rights’ exclusively
appertaining to the coastal State.

For the same reason it is doubtful whether the conflict resolution clause of Article 59
UNCLOS is indeed a tool for solving the conflict between claims of ‘residual rights’ and
claims of a right to conduct military activities in a foreign EEZ.62 Of course, Article 59
UNCLOS is meant to provide “some guideline or criterion to settle disputes that might
arise out of concurrent uses of the sea within the exclusive economic zone, that is by the
presence of competitive rights between the coastal State and the other States”.63 Still,
according to its wording, that provision is applicable only “in cases where the
Convention does not attribute rights or jurisdiction to the coastal State or to other States
within exclusive economic zone”. As seen, the right to conduct military activities in a
foreign EEZ has been recognized in the Convention by the reference, in Article 58 (2)
UNCLOS, to “other pertinent rules of international law”.

Finally, the issue of the legality of marine data collection in foreign EEZs must be
addressed. According to Article 56 (1) (b) UNCLOS, the coastal State has, in its EEZ,
jurisdiction with regard to, inter alia, marine scientific research, as provided for in Part
XIII (Articles 238 to 265 UNCLOS).64 UNCLOS does not define the term ‘marine scientific
research’ (MSR), but it may be concluded from Article 243 UNCLOS that it refers to
“those activities undertaken in ocean space to expand scientific knowledge of the marine
environment and its processes.”65 A systematic interpretation of the different UNCLOS
provisions leads to the conclusion that MSR must be distinguished from ‘survey
activities’. 66 Accordingly, MSR does not include hydrographic surveys 67 , including
military surveys, or operational oceanography. 68 Military surveys in foreign EEZs have
been conducted by numerous States, including Russia, Japan, Australia, South Africa, the
United Kingdom, China and NATO.69 They cannot be considered MSR and they are not

57 Uruguay, Declaration made upon signature and ratification on 10 December 1982.

58 Federal Republic of Germany, Declaration made upon accession on 14 October 1994 (supra note 50).
59 Italy, Declaration made upon signature on 7 December 1984 and confirmed upon ratification on 13

January 1995 (supra note 51).

60 Netherlands, Declaration upon ratification on 28 June 1996.
61 Kraska (supra note 2), p. 278. See also Barbara Kwiatkowska, The 200 Mile Exclusive Economic Zone in

the New Law of the Sea, p. 229 (Dordrecht/Boston/London 1989).

62 Nelson (supra note 39), para. 19.
63 Jorge Castañeda, “Negotiations on the Exclusive Economic Zone at the Third United Nations Conference

on the Law of the Sea”, in: Jerzy Makarczyk (ed.), Essays in International Law in Honour of Judge Manfred
Lachs, pp. 605–23, at 615 (The Hague 1984).
64 For a general assessment see Tullio Treves, “Marine Scientific Research”, in: Max Planck Encyclopedia of

International Law – online.

65 George Walker (gen. ed.), Definitions for the Law of the Sea, p. 241 (Leiden/Boston 2012).
66 See Articles 19 (2)(j), 21 (1)(g) and 40 UNCLOS. See also Roach and Smith (supra note 1), p. 435.
67 For the importance of hydrographic surveys and nautical charting, including electronic charting, see

UNGA resolution A/RES/66/231 of 24 December 2011.

68 For an in-depth analysis of the different forms of marine data collection and for further references see

Roach and Smith (supra note 1), p. 413 et seq. See also Pedrozo (supra note 2), at 525 et seq.
69 See the references by Kraska (supra note 2), p. 270 et seq.
 11

covered by the jurisdiction enjoyed by the coastal State in accordance with Article 56
(1)(b)(ii) UNCLOS. Rather, the any form of marine data collection that is not covered by
the term ‘MSR’ is a right granted under ‘other pertinent rules of international law’, which
may neither be impeded nor interfered with by the coastal State. 70

It follows from the foregoing that, with respect to the EEZ, as the US Senate Foreign
Relations Committee put it, “all States enjoy high seas freedoms of navigation and all
other internationally lawful uses of the sea related to these freedoms, including, inter
alia, military activities, such as anchoring, launching and landing of aircraft and other
military devices, launching and recovering water-borne craft, operating military devices,
intelligence collection, surveillance and reconnaissance activities, exercises, operations,
and conducting military surveys.”71 The 18 States claiming a right to limit or restrict,
within their EEZ, foreign military activities are, therefore, in breach of UNCLOS and the
corresponding rules of customary international law.

In this context, it is interesting to note that the camp of States restricting or prohibiting,
within their EEZ, foreign military activities might lose on of its most important
members. According to Pedrozo, there are “some indications that China may be re-
evaluating its position as it develops a more robust blue-water capability. There is
growing evidence that China has been engaged in military activities, to include ISR and
military marine data collection, in the American, Vietnamese, Philippine and Japanese
EEZs without notice or consent.” 72

According to Article 58 (3) UNCLOS, the exercise of the aforementioned rights, i.e. the
conduct of military activities in foreign EEZs, is subject to the obligation to “have due
regard to the rights and duties of the coastal State”. This means that the States exercising
these rights “must inter alia be aware of and consider the rights and duties of the coastal
State in its EEZ. Other States must balance their rights and duties against the rights and
duties of the coastal State in its EEZ.”73 It must be borne in mind, however, that the due
regard principle applies both ways because, according to Article 56 (3) UNCLOS, it
likewise obliges the coastal to “be aware of and consider the rights and duties of other
States in its EEZ. The coastal State must balance its rights and duties against the rights
and duties of other States in its EEZ.”74

5. – LAW OF NAVAL WARFARE AND MARITIME NEUTRALITY

The major treaties on the law of naval warfare and maritime neutrality 75 were
concluded at times when coastal States were limited to a 3 nm territorial sea. They long

70 See Klein (supra note 2), p. 217 et seq.

71 U.S. Senate Foreign Relations Committee, Resolutions (2004 and 2007), quoted by Roach and Smith
(supra note 1), p. 381. See also Kraska (supra note 2), p. 253 et seq.; Pedrozo (supra note 2), at 518 et seq.;
Klein (supra note 2), p. 43 et seq., 211 et seq.
72 Pedrozo (supra note 2), at 541. See also Department of the Secretary of Defense, Annual Report to

Congress: Military and Security Developments Involving the People’s Republic of China, p. 37 (Washington,
D.C., 2014).
73 Walker (supra note 65), p. 180.
74 Walker (supra note 65), p. 180. See also Kraska (supra note 2), p. 261 et seq.
75 Declaration Respecting Maritime Law, Paris, 16 April 1856. Hague Conventions of 18 October 1907: No.

VI Relating to the Status of Enemy Merchant Ships at the Outbreak of Hostilities; No. VII Relating to the
Conversion of Merchant Ships into War-Ships; No. VIII Relative to the Laying of Automatic Submarine
Contact Mines; No. IX Concerning Bombardment by Naval Forces in Time of War; No. XI Relative to Certain
 12

predated the recognition of coastal States’ functional jurisidiction over the EEZ. Hence,
those treaties naturally lack provisions regulating the conduct of hostilities within the
EEZ. However, UNCLOS has had a considerable impact on the customary rules and
principles applicable to international armed conflicts at sea. The law of naval warfare
and maritime neutrality as it currently stands has been identified in two private drafts:
the San Remo Manual prepared under the auspices of the International Institute of
Humanitarian Law in San Remo, Italy76, and the Helsinki Principles adopted by the
International Law Association. 77 The provisions of the San Remo Manual and of the
Helsinki Principles, in particular those dealing with the geographical scope of
applicability and the protection of neutral sea areas, have been recognized in national
military manuals. 78 It is, therefore, safe to assume that they can broadly? be referred to
as reflecting customary international law on the issue.

The San Remo Manual and the Helsinki Principles are based on the premise that the law
of the sea has not resulted in an absolute demilitarization of the world’s oceans and that
there is no prohibition of the exercise of belligerent rights in times of an international
armed conflict at sea. Efforts aiming at demilitarization met with the strong opposition
of the predominantly western sea powers. 79 Hence, for the time being, military
operations at sea – whether in times of peace or in times of international armed conflict
– continue to be lawful even if they will by necessity have an impact on the uses of the
sea by neutral States and innocent shipping and aviation.

According to the San Remo Manual,

“[…] hostile actions by naval forces may be conducted in, on or over:

(a) the territorial sea and internal waters, the land territories, the exclusive economic
zone and continental shelf and, where applicable, the archipelagic waters of
belligerent States;
(b) the high seas; and
(c) subject to paragraphs 34 and 35, the exclusive economic zone and the continental
shelf of neutral States.”80

Restrictions with Regard to the Exercise of the Right of Capture in Naval War; No. XIII Concerning the
Rights and Duties of Neutral Powers in Naval War. Procés-verbal relating to the Rules of Submarine
Warfare Set Forth in Part IV of the Treaty of London of 22 April 1930, London, 6 November 1936. Geneva
Convention for the Amelioration of the Conditions of Wounded, Sick and Shipwrecked Members of Armed
Forces at Sea, 12 August 1949.
76 Louise Doswald-Beck (ed.), San Remo Manual on International Law Applicable to Armed Conflicts at Sea,

Cambridge 1995.
77 International Law Association, Helsinki Principles on the Law of Maritime Neutrality, Final Report of the

Committee on Maritime Neutrality, International Law Association, Report of the 68 th Conference, 496 et
seq. (Taipei 1998).
78 See Office of the Chief of Naval Operations, U.S. Dept. of the Navy, The Commander’s Handbook on the

Law of Naval Operations (Edition July 2007, Naval Warfare Pub. No. NWP 1-14M); UK Ministry of Defence,
The Manual of the Law of Armed Conflict (Oxford 2004); Germany, Federal Ministry of Defence, Law of
Armed Conflict Manual, Joint Service Regulation (ZDv 15/2) (May 2013); Canada, Office of the Judge
Advocate General, Law of Armed Conflict at the Operational and Tactical Levels (2011).
79 See Rüdiger Wolfrum, “Restricting the Use of the Sea to Peaceful Purposes, Demilitarization in Being?”,

24 German Yearbook of International Law, 200-241, 1981; Tullio Treves, “La notion d’utilisation des
espaces marines à fins exclusivement pacifiques dans le nouveau droit de la mer”, 26 Annuaire Français
de Droit International, 687-699, 1980.
80 San Remo Manual (supra note 76), para. 10.
 13

The same approach underlies the Helsinki Principles, which similarly affirm the
principal legality of hostilities in the high seas and in the EEZ of neutral States. 81 The
military manuals of the United Kingdom82, the U.S.83, Canada84 and Germany85 also
include the EEZ of neutral States into the ‘areas of naval warfare’. Neutral sea areas are
excluded and inviolable only insofar as the “internal waters, territorial sea, and, where
applicable, the archipelagic waters of neutral States” are concerned.86

The fact that the EEZ of neutral States is not excluded from the sea areas in which the
exercise of belligerent rights are prohibited may not be misunderstood as a carte
blanche for belligerents at sea. According to the San Remo Manual, belligerents are
under a general obligation to have due regard to the rights and duties of the neutral
coastal State and they are under a specific obligation, if they lay naval mines in the EEZ
of a neutral State. Paragraph 34 of the San Remo Manual provides:

“If hostile actions are conducted within the exclusive economic zone or on the
continental shelf of a neutral State, belligerent States shall, in addition to observing the
other applicable rules of the law of armed conflict at sea, have due regard for the rights
and duties of the coastal State, inter alia, for the exploration and exploitation of the
economic resources of the exclusive economic zone and the continental shelf and the
protection and preservation of the marine environment. They shall, in particular, have
due regard for artificial islands, installations, structures and safety zones established by
neutral States in the exclusive economic zone and on the continental shelf.”

Paragraph 35 of the San Remo Manual provides:

“If a belligerent considers it necessary to lay mines in the exclusive economic zone or the
continental shelf of a neutral State, the belligerent shall notify that State, and shall
ensure, inter alia, that the size of the minefield and the type of mines used do not
endanger artificial islands, installations and structures, nor interfere with access thereto,
and shall avoid so far a practicable interference with the exploration or exploitation of
the zone by the neutral State. Due regard shall also be given to the protection and
preservation of the marine environment.”

These provisions have been adopted in the Canadian manual.87 The Helsinki Principles88
and the military manuals of the United Kingdom89 and Germany90 only recognize a
general obligation to have due regard to the rights and duties of a neutral State in its
EEZ. The U.S. Manual does not seem to recognize a belligerent duty to pay due regard to
neutral EEZ rights and duties. It merely states that a “neutral State’s EEZ is equivalent to

81 Helsinki Principles (supra note 77), para. 4.

82 UK Manual (supra note 78), para. 13.6
83 NWP 1-14M (supra note 78), para. 7.3.8.
84 Canadian Manual (supra note 78), para. 804.
85 German Manual (supra note 78), para. 1014.
86 San Remo Manual (supra note 76), para. 14; Helsinki Principles (supra note 77), para. 1.4; NWP 1-14M

(supra note 78), paras. 7.3.1 – 7.3.7; Canadian Manual (supra note 78), para. 805; German Manual (supra
note 78), para. 1214; UK Manual (supra note 78), para. 13.7.
87 Canadian Manual (supra note 78), paras. 821 and 822.
88 Helsinki Principles (supra note 77), para. 4.
89 UK Manual (supra note 78), para. 31.21. According to the UK Manual, the due regard obligation also

applies vis-à-vis “vessels engaged in shipping”. Moreover, it provides that “belligerents shall also take care
to avoid damage to cables and pipelines laid on the seabed which do not exclusively serve other
belligerents.”
90 German Manual (supra note 78), para. 1014.
 14

the high seas in terms of belligerent rights to conduct hostilities therein.” 91 It is,
however, doubtful whether the U.S. has thus abandoned the due regard obligation in
times of an international armed conflict at sea. In this context it may be recalled that the
due regard principle also applies in the high seas. 92 Hence, the assimilation of a neutral
EEZ with the high seas does not necessarily mean that the U.S. is not prepared to
observe the principle in the course of armed hostilities at sea.

In principle, the obligation of belligerents to have due regard to the rights and duties of
the coastal State operates in the same manner as it does in times of peace. Accordingly,
belligerents must be aware of the rights and duties of neutral States in their EEZs and
they must balance their rights and duties under the law of naval warfare and neutrality
at sea against the neutral States rights and duties in their EEZ. This, however, does not
mean that the outcome of the required balancing of competing interests will be the same
as in peacetime. Belligerent rights include the destruction of lawful targets as well as
prize measures, which may be taken against enemy and neutral merchant vessels and
civil aircraft.93 The belligerents are entitled to take, within the confines of the applicable
law, all measures necessary to neutralize the enemy. Accordingly, belligerent rights will
in most instances prevail over the EEZ rights and duties of neutral coastal States, if they
result in, or are reasonably expected to offer, a (definite) military advantage as against
the respective enemy.

6. – CONCLUDING REMARKS

Preserving and, if necessary, enforcing the right to conduct military activities in the EEZ
of other States lies in the interest not only of the big maritime powers but eventually of
all States, including those that are highly suspicious vis-à-vis foreign military activities in
their EEZs and that endeavour to restrict or even prohibit such activities.

The European Union has – finally – understood the importance of maritime security. The
2014 Maritime Security Strategy 94 identifies the maritime security interests of the EU
and its member States and the maritime security risks and threats. The EU’s maritime
security interests include the “preservation of peace” and “freedom of navigation” and
the “protection of economic interests” (p. 6 et seq.). The EU is determined to “actively
contribute to strengthening security of the global maritime domain by preventing and
responding to maritime risks and threats” (p. 8), to improve maritime awareness,
surveillance and information sharing (p. 11 et seq.) and to enhance its capacity for

91 NWP 1-14M (supra note 78), para. 7.3.8.

92 San Remo Manual (supra note 76), paras. 36 and 37; Helsinki Principles (supra note 77), para. 3.1.
93 For a short overview of belligerent rights at sea see Wolff Heintschel von Heinegg, “Maritime Warfare”,

in: Andrew Clapham and Paola Gaeta (eds.), The Oxford Handbook of International Law in Armed Conflict,
p. 145-182 (Oxford 2014). See also Robert W. Tucker, The Law of War and Neutrality at Sea (Washington,
D.C. 1957); C. John Colombos, The International Law of the Sea, p. 477 et seq. (6th ed., London 1967); Eric
Castrén, The Present Law of War and Neutrality, p. 241 et seq., 492 et seq. (Helsinki 1954); Lassa
Oppenheim, International Law Vol. II, p. 457 et seq., 768 et seq. (7th ed. by Hersch Lauterpacht, London
1952); Charles Rousseau, Le Droit des Conflits Armés, p. 213 et seq., 409 et seq. (Paris 1983); Daniel P.
O’Connell, The International Law of the Sea, Vol. II, p. 1094 et seq. (ed. by Ivan A. Shearer, Oxford1984).
94 Council of the European Union, European Union Maritime Security Strategy, adopted by the Council

(General Affairs) on 24 June 2014, 11205/14, available at:

http://register.consilium.europa.eu/doc/srv?l=EN&f=ST%2011205%202014%20INIT (last visited on 18
January 2015).
 15

conflict prevention and crisis response (p. 13 et seq.). In sum, the EU has decided to
enhance its role “as a global actor and security provider” in the maritime domain (p. 6).
These aims can only be achieved, if the EU and its member States are globally visible as
an actor that is in fact capable of countering the identified risks and threats. For these
purposes, the EU and its member States will by necessity have to show presence not
only in the sea areas neighbouring the EU or in the high seas. It is likewise necessary to
deploy naval forces to the EEZ of other States. Capacity building and the improvement of
maritime domain awareness require naval manoeuvres and exercises as well as the
collection of marine and other data in distant sea areas. Hence, the preservation of the
freedom to conduct military activities in a foreign EEZ is a conditio sine qua non for an
effective implementation of the EU Maritime Security Strategy.

It has been rightly observed by Kraska that “both state practice and the legal rules and
associated jurisprudence surrounding military activities on the high seas as well as in
the EEZ are quite well settled. What actually is proving difficult is keeping it that way, as
opportunistic academics, activists, and government officials manufacture legal theory
and create new policy in an effort to destabilize the liberal order in the EEZ.” 95 It may be
added that the issue of military activities is far too important to be sacrificed on the altar
of appeasement politics.

95 Kraska (supra note 2), p. 222.