A US destroyer, USS Benfold, in the Taiwan Strait. Photo: US Navy

A recent article for the Center for International Maritime Security (CIMSEC) and The Maritime Executive by former senior US Navy lawyer Raul (Pete) Pedrozo restates his and the United States’ interpretation of the relevant international law. But no matter how many times they do so, saying it does not necessarily make it acceptable to all other states. 

The article refers amply to the UN Convention on the Law of the Sea. But the US is not a party to UNCLOS. Although the US claims to abide by most of its provisions, it and China have different interpretations of key terms and clauses. Moreover, the exclusive economic zone (EEZ) and its regime were created de nouveau by UNCLOS. The EEZ is sui generis and neither “high seas” nor “international waters.” 

China and many other countries argue that the Convention is a series of package deals and that non-ratifiers like the US are not entitled to the “benefits” of particular tradeoffs while eschewing their part of the bargain.  

They contend, for example, that interpretation of key terms in the Convention relevant to freedom of navigation, such as “other internationally lawful uses of the sea,” “abuse of rights,” “due regard,” “peaceful use/purpose,” are evolving rapidly through state practice and that non-ratifiers like the US do not have the legitimacy to interpret them to their advantage, let alone unilaterally enforce their interpretations with warships and warplanes.

Pedrozo’s piece refers to UNCLOS Articles 58 and 87, but conveniently neglects to mention the obligation to pay due regard to the rights and duties of the coastal state. Despite the article’s assertion, freedom of navigation in the EEZ is qualified by the “due regard” clause.

More specifically, the Pedrozo article’s list of “freedoms” in China’s EEZ in the Taiwan Strait includes ISR (intelligence, surveillance, reconnaissance) operations; launching and recovery of devices; weapons exercises; and military marine data collection and naval oceanographic surveys.

Because of the “due regard” provision, such “freedoms” depend on what specifically the warship or warplane is doing. For example, if it is undertaking cyber or electronic warfare (EW), this may be viewed as a threat or use of force – not allowed by the UN Charter, let alone UNCLOS.

Indeed, the US views some cyber and EW attacks this way. It has agreed to a new clause in the Australia, New Zealand, United States Security Treaty (ANZUS) that gives “cyberattacks the same weight” as missile or bomb attacks or physical invasions. So if the cyber and EW activities of the warships and warplanes in the EEZ constitute an “attack,” then what they are doing is illegal. 

Particularly relevant are active SIGINT (signals intelligence) activities conducted from aircraft and ships, some of which are deliberately provocative, intending to generate programmed responses. Other SIGINT activities intercept naval radar and emitters, enabling them to locate, identify and track (and thus plan electronic or missile attacks against) surface ships and submarines. 

Still others may interfere with communication and computer systems. These activities may involve far greater interference with the communication and defense systems of the targeted coastal state than any traditionally passive intelligence gathering activities conducted from outside national territory. China thinks that some such activities are not consonant with UNCLOS. 

Another relevant question is whether such intelligence activities can be deemed inherently hostile to the security interest of the coastal state so as to make it impossible or difficult for the state conducting the intelligence activities to respect either the “peaceful purposes” limitation or the “due regard” limitation. 

 The UNCLOS negotiators apparently tried to satisfy both sides in this debate by making the relevant provisions ambiguous.

The CIMSEC article assumes that military surveys are not subject to the prior-consent regime for marine scientific research. But this argument can be put to rest by a plain reading of UNCLOS Article 258. 

It provides that “the deployment and use of any type of scientific research installation or equipment in any area of the marine environment shall be subject to the same conditions as are prescribed in this Convention for the conduct of marine scientific research in any such area.” 

It seems difficult to avoid the conclusion that the deployment of such equipment in a foreign EEZ requires the consent of the coastal state. 

Simple naval transit and maneuvers are part of the freedom of navigation. But China may argue that extended tests of weapons, such as laying of depth charges, launching torpedoes, live-fire exercises or the covert laying of arms within an EEZ, violate the duty to pay “due regard” to the rights and duties of the coastal state, especially their duty to protect the environment including its fish and mammals. 

Moreover, the legality of military maneuvers and missile exercises that temporarily prevent other states from using part of their EEZ remains unresolved. 

Consider the US reaction if China were repeatedly to undertake such activities in the US EEZ off its west or east coast or in the Gulf of Mexico. While it might not legally object, it surely would consider this provocative, monitor them closely, even harass the assets undertaking the activities and plan “countermeasures” in the event of an attack.

The Convention provides that in cases where it does not specifically attribute rights or jurisdiction to the coastal or other states within the EEZ, any dispute between the states parties should 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). 

So the question may become: Which is more equitable or more valuable to the international community, the right to spy, “prepare the battlefield” and threaten, or the right to ban such activities in one’s EEZ?

We probably will never know the definitive legal answer because the US is not a party to UNCLOS and can neither avail itself of, or be subjected to, its dispute settlement mechanisms. This may be one reason the US has to resort to gunboat diplomacy to assert its interpretations.

Such disputes imply that certain UNCLOS provisions formulated in a very different political and technological era must be interpreted in the light of these new circumstances – or renegotiated. 

Any such negotiations – with a weakened US, a hostile Russia and a rising China – would likely have very different results than before when the US and the Soviet Union joined diplomatic forces to strongly influence the freedom of navigation provisions in favor of maritime powers.

This is perhaps why the article beats the drum of the past hoping that those interpretations of these provisions will be static. But as international law evolves, this may be whistling by the graveyard of such legal theories.

Mark Valencia

Mark J Valencia is an internationally recognized maritime policy analyst, political commentator and consultant focused on Asia. Most recently he was a visiting senior scholar at China’s National Institute for South China Sea Studies and continues to be an adjunct senior scholar with the Institute. Valencia has published some 15 books and more than 100 peer-reviewed journal articles.