CHINA MARITIME STUDIES INSTITUTE 

U.S. NAVAL WAR COLLEGE 

Newport, Rhode Island

Military Activities in the EEZ

www.usnwc.edu/Research---Gaming/China-Maritime-Studies-Institute.aspx

A U.S.-China Dialogue on Security and 

International Law in the Maritime Commons

Peter Dutton, Editor
Naval War College

Newport, Rhode Island 

Center for Naval Warfare Studies 

China Maritime Study No. 7 

December 2010

President, Naval War College

Rear Admiral James P. Wisecup, U.S. Navy

Provost

Amb. Mary Ann Peters

Dean of Naval Warfare Studies

Robert C. Rubel

Director of China Maritime Studies Institute

Dr. Lyle J. Goldstein

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ISSN 1943-0817

ISBN 978-1-884733-82-6


Contents

Introduction, by Peter Dutton ................................................................................ 1

CHAPTER ONE China’s Maritime Rights and Interests.................................15

by Maj. Gen. Peng Guangqian, People’s 

Liberation Army (Ret.)

CHAPTER TWO Coastal State Jurisdiction over Marine Data Collection 

in the Exclusive Economic Zone: U.S. Views.........................23

by Raul (Pete) Pedrozo

CHAPTER THREE Jurisprudential Analysis of the U.S. Navy’s Military 

Surveys in the Exclusive Economic Zones of 

Coastal Countries............................................................37

by Yu Zhirong

CHAPTER FOUR Aerial Reconnaissance by Military Aircraft 

in the Exclusive Economic Zone .................................................49

by Lt. Col. Andrew S. Williams, U.S. Air Force

CHAPTER FIVE The Concept of Marine Scientific Research ...............................65

by Wu Jilu

CHAPTER SIX Resources Rights and Environmental Protection in 

the Exclusive Economic Zone: The Functional Approach 

to Naval Operations.........................................................75

by Cdr. James S. Kraska, JAGC, U.S. Navy

CHAPTER SEVEN Surveys and Research Activities in the EEZ: 

Issues and Prospects.........................................................89

by Xue Guifang (Julia)

CHAPTER EIGHT Playing by or Playing with the Rules of UNCLOS? .............. 107

by Alan M. Wachman

Abbreviations and Definitions............................................................................ 120

About the Contributors..................................................................................... 123

The opinions expressed in this publication are the perspectives of the authors and do 

not necessarily represent the views of the U.S. Department of Defense or any of its 

components or the views of the government of the People’s Republic of China or 

any of its components. 

Peter Dutton

Introduction 

On the wall in the entranceway to the personal offices of the Commander, Pacific 

Fleet, there hangs prominently displayed a life-size portrait of Adm. Chester 

William Nimitz, the legendary architect of the American naval victory in the Pacific 

sixty-five years ago. The painting is specially lit, giving the admiral’s thoughtful gaze a 

lifelike glow as if he were present, judging the decisions and actions of his successors in 

command as these officers find means to preserve regional peace and guard American 

interests. In the painting’s background are the objects of naval war, standing as striking 

reminders of the heavy price in American blood and treasure paid for the nearly three 

generations since then during which the Pacific Ocean has been an American lake. It has 

been this freedom from serious threat that has provided room for American strategic 

and operational maneuver during the Korean conflict, the Vietnam War, and the Cold 

War, that has afforded an avenue for the movement of forces during conflicts in Iraq and 

Afghanistan, the capacity to deter conflict in East Asia, the access needed to assure the 

security of allies and partners, and the ability to provide support to populations devastated by disaster. 

The responsibility to keep peace and find means to secure American interests for future 

generations must weigh heavily on each commander as he passes Nimitz’s gaze, and never more so than today. Change is afoot in the Pacific. The Chinese military is developing 

the capacity to challenge American freedom of action in and around the Yellow Sea, the 

East China Sea, and the South China Sea—China’s “near seas.” China’s naval modernization is efficiently focused on controlling access to these near seas in military crisis. 

For instance, China has long possessed one of the largest arsenals of naval mines in the 

world. Over the last three decades its navy has also developed a capable submarine fleet, 

to challenge the freedom of action of any naval force in the region. More recently, China 

has announced programs to develop antiship ballistic missiles and aircraft carriers and 

has demonstrated the capacity to employ antisatellite weapons and cyber-disruption. In 

short, China is attempting to assemble the technology to challenge the U.S. Navy’s access 

to the western reaches of “its” lake and thereby challenge the political access that American naval power now ensures. 
2 china maritime studies

China has also mobilized its lawyers. Its international-law specialists have become 

adjunct soldiers in China’s legal campaign to challenge the dominant, access-oriented 

norms at sea, especially for military freedoms of navigation in the exclusive economic 

zone. This expanse of waters, known as the EEZ, stretches two hundred nautical miles 

from a coastal state’s shores and collectively constitutes more than a third of all ocean 

space. Because the EEZ is a rich resource zone and a region through which all major 

sea-lanes pass, its space is critical to regional political stability, national resource extraction, and global commerce. For the United States, the world’s EEZs are therefore critical 

regions in which naval power must be brought to bear in support of two fundamental 

sources of stability for the global system: deterrence of international armed conflict and 

suppression of nontraditional threats to commerce and other activities. For China, however, its EEZ and other jurisdictional waters are zones in which outside interference is an 

unwelcome intrusion into domestic security issues, a zone of competition for resources 

with neighboring states that claim overlapping rights, and a region in which national, 

not international, maritime power should dominate. 

These dichotomous perspectives flow from fundamentally different views about regional 

security, and they form the basis of a simmering tension between the Chinese and 

American maritime power. That tension occasionally erupts, such as it did in April 2001 

during the EP-3 incident and in March 2009 during the USNS Impeccable incident. The 

Impeccable incident occurred when a collection of Chinese government and fishing vessels maneuvered in dangerously close quarters around the American survey vessel and 

interfered with the performance of its operations in the South China Sea more than seventy miles off China’s nearest coastline.1

 The EP-3 incident occurred eight years earlier 

in nearly the same location when a Chinese intercept aircraft collided with an American 

patrol plane as it performed routine reconnaissance operations in the airspace over the 

South China Sea.2

This volume is the product of a workshop held in Newport in July 2009 to discuss the 

different perspectives held by the United States and China on the legitimacy of foreign 

military activities in a coastal state’s EEZ. The conference, addressing “The Strategic Implications of Military Activities in the EEZ,” was attended by fifty representatives of the 

American and Chinese policy, military, legal, and academic communities. Its aims were 

to increase mutual understanding of the bases for each state’s perspectives and to add a 

dimension of richness to ongoing talks between the two countries under the framework 

of the Defense Consultative Agreement and the Military Maritime Consultative Agreement. Eight papers from workshop participants are reproduced here; during the two 

days of substantive discussions each attendee also made other significant contributions 

to the success of these objectives. We extend our thanks and gratitude to each of them. 
military activities in the eez 3

The workshop, falling as it did just four months after the confrontation between Chinese 

civilian and government vessels and the USNS Impeccable, produced for American 

participants an extraordinary level of discussion and insight into the Chinese view of its 

security interests and China’s perspective on the protections those security interests are 

guaranteed by international law. The Impeccable incident, like the 2001 EP-3 incident 

before it, focused a spotlight on American survey and intelligence operations in the 

South China Sea as a flash point in the larger dispute between the United States and 

China over the balance of coastal-state and user-state rights in the EEZ. The statements 

of the Chinese government in the aftermath of each of these events, claiming that such 

U.S. naval operations were illegal and threatening to China, demonstrate the sharp differences of perspective over what traditional military activities constitute legitimate uses 

of those waters.

Although the conflict is generally expressed by both Americans and Chinese in terms of 

international law, the friction is not fundamentally about correct legal interpretation of 

international law or of the provisions of the United Nations Convention on the Law of 

the Sea (UNCLOS). Rather, the legal conflict reflects a larger clash between China’s objective of increasing its control over its near seas and the American interest in maintaining the freedoms of navigation on which the stability and security of the global maritime 

commons rely. The language of international law is nonetheless important, because it is 

the primary field of battle chosen by the parties to contest their claims. 

For this perhaps we should all be grateful, since the ongoing friction and occasional 

incidents, tense as they are, are managed and contained by this resort to law rather than 

to force. It is important to observe that despite tension in military-to-military relations, 

the overall bilateral relationship remains one of productive strategic engagement, even if 

strategic cooperation is not entirely achieved. Thus, the dispute about U.S. military operations in China’s near seas has not hampered overall bilateral economic, commercial, 

diplomatic, or even military cooperation (antipiracy operations in the Gulf of Aden and 

United Nations peacekeeping stand as ongoing examples). This should provide all parties reason for optimism that the friction can continue to be managed without escalation 

into larger conflict. That said, the friction remains tactically dangerous. One person—

Chinese pilot Wang Wei, in the EP-3 incident—has already died, and it behooves all 

concerned to develop deeper understandings of the nature and sources of conflict so 

that, where possible, incidents can be avoided until a new modus vivendi for regional 

security can be achieved.

In that regard, the workshop highlighted three fundamental areas of contention between 

the United States and China concerning foreign military activities in East Asian seas. The 

first relates to China’s rather ambiguously based assertion of jurisdiction over almost all 

the waters of the South China Sea, as expressed in the “U-shaped line,” sometimes also 
4 china maritime studies

referred to as the “nine-dashed line” or “Cow’s Tongue” (see figure 1). The second area of 

contention touches the American “third rail” of freedom of naval navigation for military 

purposes. China’s claim that the balance of coastal-state jurisdiction and international 

freedoms for military activities in the EEZ favors the coastal state’s right to limit foreign 

military activities presents, as the American authors in this volume describe, an unacceptable narrowing of traditional navigational freedoms. These divergent perspectives 

formed the core of discussions at the workshop and are the basis for the majority of 

chapters in this volume. The third area of serious debate was the sincerity of the United 

States in its desire to develop a more cooperative maritime relationship with China. 

While many American security experts accept cooperation almost as an article of faith, 

the Chinese participants were agnostic on this point. 

The U-Shaped Line

As Peng Guangqian’s chapter points out, the Chinese have long viewed the Bo Hai Gulf, 

the Yellow Sea, the East China Sea, and the South China Sea—the so-called near seas—as 

regions of geostrategic interest and parts of a great defensive perimeter established on 

land and at sea to protect China’s major population and economic centers along the 

coasts and major rivers. Indeed, in the 1930s China’s Nationalist government formed 

the Land and Water Maps Inspection Committee to address concerns about foreign 

encroachment on Chinese territories, including the foreign forces that occupied islands 

in the South China Sea. The committee reported in 1935 that in the South China Sea 

China’s southernmost territorial feature is the James Bank, which sits about fifty nautical 

miles off the north coast of Borneo, and that China’s maritime boundary should therefore extend south to approximately four degrees north latitude. By 1947, the government 

of the Republic of China had begun to publish maps with a U-shaped dashed line in 

the South China Sea to delineate its maritime boundaries.3

 The Chinese government 

repeated this cartographic feature after the Communist Party came to power in 1949, 

and today it remains on maps published in China and Taiwan. However, no Chinese 

government has ever specified the nature of the claim over the expanse of water and the 

numerous islands, shoals, rocks, and islets contained within the nine dashes of the Ushaped line. Chinese participants at the workshop explained that among Chinese scholars and officials there are four dominant schools of thought as to the line’s meaning, 

none of which is especially favored by the government. However, like layers of a cake, 

each perspective appears intended to build upon and strengthen the others. These four 

schools fall roughly into groups claiming, respectively, that the line denotes sovereignty 

interests, historical rights, jurisdictional rights, or security interests.

A review of relevant Chinese literature reveals the broad outline of the argument made 

by the sovereignty camp. One group of senior Chinese defense analysts, for instance, 
military activities in the eez 5

105° 110° 115° 120°

25°

20°

15°

10°

5°

0°

25°

20°

15°

5°

0°

10°

105° 110° 115° 120°

1:10 600 000

km200 0 200 400 600km

Hainan Dao

CHINA

Dongsha Qundao

LAOS

CAMBODIA

VIETNAM

THAILAND

LAOS

Xisha Qundao

Zhongsha Qundao

PHILIPPINES

SOUTH CHINA SEA

Nansha Qundao

BR N IU E

INDONESIA

MALAYSIA

Taiwan Tao

Figure 1. The U-shaped line formed by the nine dashes reflects China’s claim over the waters and 

islands of the South China Sea. Three types of legal disputes arise from the claim: sovereignty 

disputes related to the island features, disputes over resource jurisdiction in the surrounding 

waters, and disputes over the extent of coastal-state authority to prohibit foreign military 

activities. The latter dispute led to the 2001 EP-3 incident and the 2009 Impeccable incident, each 

of which occurred in China’s EEZ, seventy-five to eighty miles southeast of Hainan Island. (United 

Nations, www.un.org)
6 china maritime studies

describes Chinese offshore interests as “the area extending out from the Chinese mainland coastline between 200 nautical miles (to the east) and 1600 nautical miles (to the 

south),” or roughly to the latitude claimed in the 1935 report. They consider these “sea 

domains under Chinese jurisdiction . . . [as] the overlaying area of China’s national 

sovereignty.”4

 Additionally, the 1992 Law of the People’s Republic of China on the Territorial Sea and Contiguous Zone specifically claims sovereignty over each of the island 

groups in the South China Sea—the Pratas Islands (Dongsha), Paracel Islands (Xisha), 

Macclesfield Bank (Zhongsha), and the Spratly Islands (Nansha). Those who assert that 

the line denotes a claim of sovereignty seem to suggest that since these islands groups are 

claimed as sovereign, the U-shaped line that surrounds them also defines some form of 

sovereignty, perhaps similar to a territorial or archipelagic sea.

The second group views the line as a claim of “historical waters” over which the government has a jurisdictional mandate based on China’s long-standing historical presence in 

and power over the sea.5

 Reference to China’s historical rights can be found in Chinese 

domestic law. The 1998 Law of the People’s Republic of China on the Exclusive Economic Zone and Continental Shelf, for instance, states that legal developments “shall 

not affect the historical rights that the People’s Republic of China enjoys.” More recently, 

Chinese officials have asserted “administrative rights” that stem from these claimed 

historical rights over the South China Sea. In furtherance of the right to administer 

these waters, for instance, on 26 December 2009 the Standing Committee of China’s 

National People’s Congress approved the Law on Island Protection. The legislation assigns to various agencies of the Chinese government broad jurisdictional authority over 

all Chinese-claimed offshore islands, including enhanced administrative oversight for 

uninhabited islands, for the purpose of strengthening ecosystem protection, controlling 

use of natural resources, and promoting sustainable development. This law could be the 

basis for increased activity noted since 1 April 2010 in the South China Sea by the vessels 

of China’s Maritime Surveillance Service, Fisheries Service, Coast Guard, and others.

The third Chinese view is that the U-shaped line reflects an assertion of sovereignty over 

all the islands, rocks, sandbars, coral heads, and other land features the line encompasses 

and accordingly claims whatever associated jurisdiction that international law of the sea 

allows to a coastal state based on its sovereignty over these small bits of land. Indeed, 

China’s 1992 and 1998 laws claim sovereignty over the South China Sea’s island groups 

and then claim a territorial sea, exclusive economic zone, and continental shelf emanating from all of its coastlines. Thus, in combination, these two Chinese laws assert jurisdictional control over nearly the entire South China Sea area within the U-shaped line. 

The fourth perspective is that the U-shaped line reflects China’s long-standing maritime 

security interests in the South China Sea and that these security interests should have 

protection under international law. This perspective is reflected in Xue Guifang’s chapter 
military activities in the eez 7

in her discussion of the differences of perspective on maritime issues between developing and developed states. Developing states, she suggests, “appreciate the importance 

of the ocean to their national security” and therefore seek stricter control over foreign 

military activities off their shores. Yu Zhirong’s chapter also reflects a security-based 

legal perspective when it raises the issue of the proper interpretation of the “peaceful 

purposes” clauses in UNCLOS. Yu asserts that these clauses were meant to do more than 

simply reflect the requirements of the Charter of the United Nations and implies that 

intelligence gathering in the EEZ is a nonpeaceful activity. He states that “if a military 

survey activity is not undertaken for a peaceful purpose it . . . can be completely prohibited.” An example of this perspective can also be found in Chinese literature that asserts, 

“The Navy is just one of the means of protecting our maritime rights and interests . . . 

the primary means should be to rely on the law, on international law, and internal legislation.” To enforce these laws and China’s sovereign interests at sea, “in recent years we 

have started to carry out periodic patrols to safeguard our rights in the East and South 

China Seas.”6

 In this sense, the Chinese appear to see international and domestic law 

as means of establishing Chinese sovereign control over the near seas in support of the 

maritime security buffer discussed in Peng’s chapter. 

Exclusive Economic Zone

The second major aspect of the maritime friction between the United States and China 

in East Asia stems from the divergent perspectives on the proper balance of rights and 

interests in the EEZ between coastal states and user states. This divergence lies at the 

heart of the Impeccable incident and the many similar, less publicized incidents that have 

threatened East Asian maritime stability.

The EEZ was negotiated as a carefully balanced compromise between the interests of 

coastal states in managing and protecting ocean resources and in ensuring high-seas 

freedoms of navigation and overflight, including for military purposes. In the exclusive 

economic zone the coastal state was granted sovereign rights to resources and given 

jurisdiction over several activities, including “marine scientific research.” Perhaps to 

bring together a wide variety of negotiating positions, which are well described by Wu 

Jilu in his chapter, the definition of just what constitutes marine scientific research was 

left unspecified, leaving plenty of room for future legal maneuvering. Not surprisingly, 

therefore, the extent of this particular jurisdictional grant to coastal states has formed 

the narrative of the legal and operational contest between the United States and China 

concerning American naval activities in China’s EEZ. It is also on this specific point that 

Chinese participants at the workshop chose to focus their papers.

In his chapter, Wu Jilu traces the history of oceanographic research as a scientific discipline, reviews the negotiation positions of various states in the lead-up to the final draft 
8 china maritime studies

of UNCLOS, and analyzes the text of the convention itself in order to support his argument that the proper understanding of the jurisdictional grant of authority to coastal 

states to regulate “marine scientific research” is much broader than mere regulatory 

power over resource-related research. Wu concludes that coastal states have regulatory 

power over all research in the EEZ, including hydrographic and military surveys. Xue’s 

chapter picks up this point where Wu leaves it off, describing in detail the Chinese laws 

and regulations that require all “foreign organizations or individuals [to] obtain approval from the competent authorities of the People’s Republic of China for carrying out 

marine scientific research in its exclusive economic zone.” Yu’s chapter acknowledges that 

such laws cannot be directly enforced against American naval vessels, including survey 

vessels, because of their sovereign immune status. But he suggests that the introduction 

of sound into the water by survey vessels can be considered a form of pollution and that 

the burden of proof is on the United States to demonstrate that such activities are not 

harmful. “Responsibility investigations,” as Yu calls them, could be conducted by coastal 

states to show “responsibility” for damage, which he asserts is a different concept from 

immunity “and cannot be conflated” with it.

Other Chinese sources take a similarly dim view of the legal authority for foreign naval 

activities in the waters of their near seas. In a fashion similar to Yu’s argument in his 

chapter that the UNCLOS grant of freedom of navigation through the EEZ does not 

equate to the freedom to perform military operations, some leading Chinese scholars 

assert that in the exclusive economic zone, freedoms of navigation and overflight “do 

not include the freedom to conduct military and reconnaissance activities in the [waters 

or their] superjacent airspace [since such activities] can be considered a use of force or 

a threat to use force against the State.”7

 There have even been recent press reports that 

China is considering domestic legislation that would purport to make illegal all foreign 

surveillance and reconnaissance flights above its exclusive economic zone.8

American representatives to the workshop viewed the Chinese legal perspectives as “misplaced” and without foundation in international law, as Raul Pedrozo’s chapter states. As 

a group, the Americans took a broader approach to military freedoms of navigation in 

and above the EEZ and prepared chapters explaining the lawfulness of U.S. hydrographic 

surveys, military surveys, and aerial reconnaissance and demonstrating the U.S. Navy’s 

compliance with environmental standards.

Pedrozo’s chapter makes the case that the EEZ “was established for the sole purpose of 

giving coastal states greater control over the resources adjacent to their coasts out to 200 

nautical miles.” Accordingly, he concludes, legal protections for “coastal-state security 

interests . . . simply do not exist in the EEZ.” Pedrozo analyzes the balance of rights and 

interests expressed in the EEZ provisions of UNCLOS and concludes that any military 

activity that is lawful on the high seas—including military surveys and surveillance 
military activities in the eez 9

activities—is lawful in the EEZ without the coastal state’s consent. Andrew Williams’s 

chapter extends the discussion of the freedoms of navigation from the waters of the EEZ 

to the airspace above it. Williams reviews the UNCLOS EEZ provisions in light of the 

Chicago Convention on International Civil Aviation and other international law and 

concludes that “the freedom of overflight is one of the important traditional uses of the 

high seas . . . [that] UNCLOS preserves . . . in the EEZ for all aircraft, including military 

aircraft.” James Kraska’s chapter makes the case that a coastal state’s enforcement authority for environmental regulations is quite limited and in any case may not be applied 

against warships, since such vessels enjoy “comprehensive immunity” under UNCLOS. 

Additionally, Kraska points out that the issue raised by Yu of the potential for environmental harm caused by sonar was thoroughly litigated in American courts, which found 

that in forty years of use “there was no documented episode of harm to marine mammals under American jurisdiction caused by the use of sonar.”

Pedrozo’s and Yu’s chapters do contain one important point of convergence: both deprecate the use of the term “international waters” to describe the EEZ. Pedrozo recommends against its use because it is easily misunderstood by coastal states as a rejection of 

their rights and interests in the zone. From Yu’s perspective the term does indeed imply a 

rejection of the coastal state’s interests and jurisdiction in the EEZ, or at least an attempt 

to “evade the concept of the EEZ . . . and deny the coastal countries’ rights.” Yu criticizes 

as “not persuasive” senior American officials who use it to justify U.S. naval activities.

U.S. Maritime Strategy 

That the Chinese doubt American naval intentions, especially in East Asian waters, 

was a third area of discussion at the workshop. It is a perception that presents a challenge for enhanced bilateral cooperation in the maritime domain as envisioned by the 

“Cooperative Strategy for 21st Century Seapower.” The chairman of the Joint Chiefs of 

Staff, Adm. Michael Mullen, then Chief of Naval Operations, addressed the Seventeenth 

International Seapower Symposium in 2005 and outlined a new maritime strategy for a 

new era. The previous naval strategy had been crafted during the Cold War with a particular adversary in mind. Admiral Mullen charged those who would go on to develop 

the “Cooperative Strategy for 21st Century Seapower” to create for American maritime 

power a long-term vision that had no adversary as its focus but instead would serve as an 

organizing concept to provide maritime order through international partnerships and 

cooperation, deter regional conflict, and secure the seas as a highway for the increasingly 

globalized economy.9

Admiral Mullen saw that there would be a continuing need to support friends and allies 

and reassure them that American military power would be there if they were threatened 

or attacked by another member of the international community. However, he also saw 
10 china maritime studies

that whereas the attack on Pearl Harbor on 7 December 1941 was for the United States 

perhaps the defining moment of the twentieth century, the twenty-first may be defined 

most distinctly by the terrorist attacks on New York and Washington on September 

11, 2001. Accordingly, Admiral Mullen charged maritime strategists to consider how 

best to bring stability and order to the maritime domain in a world perturbed by both 

traditional and nontraditional threats. What followed was a strategy that rests upon five 

propositions: that the security, prosperity, and vital interests of the United States are 

increasingly coupled to those of other nations; that our national interests are best served 

by fostering a peaceful global system comprising interdependent networks of trade, 

finance, information, law, people, and governance; that no one nation has the resources 

required to provide safety and security throughout the entire maritime domain, for 

which reason partnerships of common interest must be formed to counter emerging 

threats; that preventing wars is as important as winning wars; and that maritime force 

can be employed to build confidence and trust among nations through collective security efforts that focus on common threats and mutual interests.

The strategy takes these propositions and articulates two organizing strategic concepts. The first is that defense against nontraditional threats requires “persistent global 

presence.” The strategic imperative driving the requirement for globally distributed 

maritime forces is not primarily threatening activity by other states but disruptive action by nonstate, or nontraditional, threats. Globally distributed forces are conceived as 

“contribut[ing] to homeland defense in depth [by] identifying and neutralizing threats 

as far from our shores as possible.” Additionally, they should foster and sustain cooperative relationships with international maritime partners and prevent or contain local 

disruptions before they impact the global system. However, global dispersal of forces 

relies on legitimate access to all nonsovereign oceanic zones for the purpose of bringing constabulary maritime power to bear. Thus, the stark contrast between Chinese and 

American descriptions in this volume of the legitimacy of naval operations in the EEZ 

presents a serious challenge to the realization of the strategy’s cooperative security 

objectives.

Chinese workshop participants especially challenged the strategy’s second set of organizing principles, which focus on traditional interstate conflict. The strategy requires 

American maritime power to be able to limit regional conflict with forward-deployed, 

decisive maritime power. It requires maintenance of America’s comparative seapower 

advantage in order to deter major-power war and, in time of war, to be prepared to win 

by imposing local sea control, overcoming challenges to access and force entry, and projecting and sustaining power ashore. Chinese participants saw in this language a return 

to “Cold War thinking,” as General Peng puts it in his chapter. They saw it as treating 

China as an unnamed adversary, especially in light of America’s continuing commitment 
military activities in the eez 11

to Taiwanese security and to freedom of navigation for surveys and intelligence gathering in the South China Sea.10

The Implications

The contributions to this volume make clear that the United States and China have 

fundamentally different views of coastal-state authority in the EEZ and that these views 

flow from strategic mistrust and from divergent conceptions of law of the sea and how 

law should serve the interests of order on the oceans. Recent history shows that these 

divergences create friction at sea, sometimes with serious consequences. China’s broad 

claims of jurisdictional protection for security interests in the EEZ are seen by the 

United States as tantamount to claims of sovereignty similar to that which a coastal state 

enjoys in the territorial sea. Indeed, in the eyes of American participants, the formula 

for EEZ passage suggested by Yu Zhirong in his chapter—that the freedom of navigation 

enjoyed by other states is one of mere navigation and not of operation—reflects more 

the innocent-passage regime applicable to territorial seas than the freedoms associated 

with operations on the high seas. As the American authors articulate, such extension of 

coastal-state authority is an unacceptable encroachment on a critical national interest—

a stable maritime order supported by broad freedoms of navigation for naval purposes. 

Hoping to point toward a more productive future maritime relationship, Alan Wachman 

concludes the volume with an essay that sees the friction over military activities in the 

EEZ as reflective of the current state of “mutual insecurity and mistrust” and as a symptom of “the ambition each has of exercising [international] leadership.” In this regard, 

Wachman believes, “both the United States and the PRC understand that there is a single 

international system, but both . . . are struggling to ensure that it reflects values they each 

prefer.” He is even willing to consider that “the controversy concerning UNCLOS may be 

seen as one battle in the Sino-U.S. war for moral primacy and influence over global institutions.” However, he urges each side to attempt to view the dispute through the eyes of 

the other to see more easily the ways in which its policies arouse feelings of insecurity. A 

bilateral compromise is possible, he suggests, only if each side is willing to exercise selfrestraint by choosing not to exercise what it may continue to maintain are its rights. The 

essential ingredient is political will.

Alternatively, Lt. Gen. Ma Xiaotian, deputy chief of the People’s Liberation Army General Staff, suggested in a speech at the Shangri-La Dialogue in Singapore in 2009 that a 

new international consensus is required—neither a Washington nor a Beijing consensus 

per se but a mutual consensus based on “fair and rational mutual relation norms [that] 

. . . give proper consideration to each other’s . . . vital and significant security interests.”11

Perhaps General Ma is correct. It is worth observing, however, that China’s regional 

objectives and activities exist in tension with its own increasing global interests. As a 
12 china maritime studies

rapidly rising economic power, China is one of the primary beneficiaries of the stable 

global system brought about by the American concept of maritime order, which in turn 

is provided in significant part through the cooperative efforts of naval powers large and 

small and is based on a common set of rules and norms guiding the actions of all at sea.

Although Chinese commentators object to the application of these rules and norms 

off China’s coasts, the Chinese have yet to articulate how their approach to achieving 

regional objectives can be reconciled with the imperatives of managing the global maritime system. Such responsibility attends the leadership to which China aspires—and 

clearly, as the Sino-American “dialogue” from the 2010 Shangri-La Dialogue demonstrates, China desires to exercise a leading regional role. As Ma Xiaotian put it, “Maintaining security in the Asia-Pacific region serves China’s interest, and it is also China’s 

responsibility.”12 Ma also made clear that the mistrust that characterizes the military 

relationship between China and the United States has at its core sixty years of American 

support for Taiwan. American policies toward Taiwan are not the topic of this volume, 

but in any case they will almost certainly remain a constant in the evolving formula of 

Sino-American relations. Nonetheless, if cooperation remains a serious American objective, it falls to the United States, which possesses the only global navy, to exercise serious 

leadership by devising ways—political, legal, and operational—to foster in China, with 

the world’s fastest-growing navy, a sufficient sense of security on its own shores to alter 

the tense dynamics of our relationship. If naval cooperation is truly in the interest of 

the United States, it is not enough, as Wachman points out, for Americans to continue 

simply to stand on principle and refuse to accommodate China’s concerns in some 

way. That course of action will only increase tension and undermine the long-sought 

cooperation. Critics may counter that the Chinese do not actually want to cooperate 

and are simply keeping us engaged long enough to grow their naval power to the point 

where they can dictate events in the western Pacific without reference to the U.S. Navy. 

If so, American leaders owe it to future generations to seek the combination of regional 

strength and patient engagement that will dissuade the Chinese from this course. War 

would be a devastating alternative.

Ideally, the wisdom and strategic foresight with which American naval leaders preserved 

order in the Pacific and secured American regional interests for more than sixty-five 

years will be available to this generation of leaders as they seek peaceful adjustments to 

the Asian security dynamics in response to China’s maritime rise. It is to be hoped too 

that Chinese naval leaders will find the same wisdom and will choose to accept the invitation to cooperate with the United States while the opportunity remains open to them. 

While this volume cannot even begin to sketch the outlines of a new security paradigm 

for the Pacific region, its modest ambition is to help each side see more clearly the nature 

of the existing friction. In seeing the nature and source of friction more clearly—even 
military activities in the eez 13

through the lenses of the other’s eyes—perhaps wise minds on both sides will be able to 

divine cooperative paths to peace and security in the Asia-Pacific region for generations 

to come.

1. See Peter Dutton and John Garofano, “China Undermines Maritime Laws,” Far Eastern Economic 

Review (3 April 2009), pp. 44–47. 

2. See Peter Dutton, “Caelum Liberum: Air Defense 

Identification Zones outside Sovereign Airspace,” 

American Journal of International Law 103, no. 4 

(October 2009), pp. 691–709. 

3. Li Jinming and Li Dexia, “The Dotted Line on 

the Chinese Map of the South China Sea: A 

Note,” Ocean Development and International Law

34 (2003), pp. 287–95. For a full treatment of 

this issue, see Peter Dutton, “Through a Chinese 

Lens,” U.S. Naval Institute Proceedings (April 

2010), pp. 24–29.

4. Wang Shumei, Shi Jiazhu, and Xu Mingshun, 

“Carry Out the Historic Mission of the Army and 

Establish the Scientific Concepts of Sea Rights,” 

China Military Science (1 February 2007), pp. 

139–46.

5. “South China Sea: Controversies and Solutions—

Interview with Liu Nanlai,” Beijing Review (4–10 

June 2009).

6. “China’s Maritime Rights and Navy,” World 

Knowledge (Beijing), 1 January 2009.

7. Ren Xiaofeng and Cheng Xizhong, “A Chinese 

Perspective,” Marine Policy 29 (2005), pp. 139–46.

8. Hai Tao, “U.S. Military Makes China’s Adjacent 

Seas Their Backyard,” International Herald 

Leader, 1 September 2009.

9. J. T. Conway, G. Roughead, and T. W. Allen, “A 

Cooperative Strategy for 21st Century Seapower,” 

October 2007, available at www.navy.mil/; repr. 

Naval War College Review 61, no. 1 (Winter 

2008), p. 15, available at www.usnwc.edu/press/. 

10. John Pomfret, “In Chinese Admiral’s Outburst, 

a Lingering Distrust of U.S.,” Washington Post, 8 

June 2010, p. A10.

11. Lt. Gen. Ma Xiaotian, “The Major Powers and 

Asian Security: Cooperation or Conflict?” 

(speech by Deputy Chief of the General Staff, 

People’s Republic of China, before the Second 

Plenary Session of the 8th IISS Security Summit, 

Shangri-La Dialogue, Singapore, 30 May 2009).

12. “China’s National Defense Capability Not to 

Challenge Any Country: Chinese Military Official,” Xinhua, 5 June 2010.

Notes

Maj. Gen. Peng Guangqian, People’s Liberation Army (Ret.)

CHAPTER ONE

China’s Maritime Rights and Interests 

China is a country with not only vast land territory but also a broad sea area. On the 

east side of mainland China and Taiwan Island, China owns five big sea areas from 

north to south, respectively named the Bo Hai Sea, Yellow Sea, East China Sea, South 

China Sea, and the Pacific area east of Taiwan. China’s coastline begins at the mouth 

of the Yalu River in the north and runs to the mouth of the Beilun River in Guangxi 

Autonomous Region in the south, a distance of approximately 18,400 kilometers (about 

11,400 miles). The country has more than 6,500 offshore islands of at least five hundred 

square kilometers (approximately two hundred square miles), and the total area of the 

island territories is 75,400 square kilometers (29,100 square miles). The main islands 

among them include Taiwan Island, the Penghus, the Diaoyu Islands, Hainan Island, the 

South China Sea Islands, Guangdong’s Nan’ao Island, Fujian’s Pingtan Island, Zhejiang’s 

Zhoushan Islands, Shandong’s Long Island, and Liaoning’s Changxing Island.

China’s “Blue Colored” Land

According to the provisions of the 1982 United Nations Convention on the Law of the 

Sea (UNCLOS), China’s “sea territory” includes its territorial waters, the contiguous 

zone, the exclusive economic zone, and the continental shelf, which in total are approximately one-third the size of China’s land territory. China’s sea territory, or “blue-colored 

land,” is an important part of its entire national territory. Although it is different from 

land territory, sea territory is important strategic space for the country in the same way 

as land territory. It is the second cradle of the nation, with several strategic values. 

First, China’s sea area is the initial strategic barrier for homeland security. The coastal 

area was the front line of growth during China’s economic development and the development of Chinese civil society. China’s most developed regions are along the coastline: 

the Bo Hai Sea economic zone, which contains big cities such as Beijing, Tianjin, and 

Tangshan; the Yangtze River triangle economic zone; the Zhu River triangle economic 

zone; the area of Taiwan, Penghu, Jinmen, and Mazu; and Hong Kong and Macao. The 

coastal area also possesses the largest population of any of the country’s regions, the 

highest concentration of high-technology industries, and the most modernized culture. 

If coastal defense were to fall into danger, China’s politically and economically important 
16 china maritime studies

central regions would be exposed to external threats. In the context of modern warfare, 

military skills such as long-range precision strike develop gradually, which makes the 

coastal sea area more and more meaningful for homeland defense as a region providing 

strategic depth and precious early-warning time. In short, the coastal area is the gateway 

for China’s entire national security.

In Chinese modern history, most invasions from powers exterior to China came from 

the sea. During China’s history prior to 1949, China suffered 470 invasions from the sea, 

including seventy large-scale invasions, such as those during the Opium Wars. From 

Dagushan on Liaodong Peninsula to the port of Sanya on Hainan Island, nearly all of 

China’s major harbors, ports, and islands suffered external invasions. Taiwan, Penghu, 

Hong Kong, Jiulong, Macao, Lüshun, Dalian, Weihaiwei, Jiaozhou Bay, and Guangzhou 

Bay were all forcibly ceded or “rented,” becoming springboards and bridgeheads for 

exterior powers to attack China’s inland regions. At the same time, the invaders grabbed 

coastal trading and navigation rights from China. Therefore, an important conclusion to 

be drawn from both history and reality is that China’s coastal area is the linchpin of its 

national security.

Second, China’s sea area is important as a channel and strategic pivot for the country 

to move outward. The Bo Hai Sea, Yellow Sea, East China Sea, and South China Sea are 

connected to each other and possess enormous geostrategic value. While China’s Bo Hai 

Sea is an inland sea, the Yellow Sea, East China Sea, and South China Sea straddle the key 

north–south routes along the marginal seas of the westernmost portions of the North 

Pacific Ocean. These three seas provide openings to the Pacific Ocean, Indian Ocean, the 

Sea of Japan, and the Philippine Sea. China’s southern coastal areas are accessed through 

the North Korea Channel in the northeast, the Bashi and the Ryukyu Islands straits in 

the east, and the straits of Malacca and Sunda in the south. These seas are therefore 

significant pivots for maritime transportation, connecting Northeast Asia with Southeast 

Asia and the Pacific Ocean with the Indian Ocean, and linking Europe, Asia, Africa, and 

Oceania.

The vast sea territory to the east of Taiwan Island is the only sea area over which China 

claims sovereignty and economic rights in the Pacific. These waters have always been 

economically important trading routes. As early as China’s Xi Han dynasty more than 

two thousand years ago, the South China Sea was “the maritime Silk Road,” the golden 

waterway connecting East and West.

When China undertook its “open door” policy beginning in the late 1970s, it began 

striding toward the outside world and building closer relations with other countries. 

The Chinese economy is now increasingly dependent on international trade. As a result 

of the connectivity of the world’s oceans and the low cost of seagoing freight, most of 
military activities in the eez 17

China’s economic trade with other countries is conducted by sea carriage, including the 

import of energy and other strategic resources. China’s seagoing freight represents 40 

percent of its domestic shipment of goods and 95 percent of its foreign trade. China’s 

offshore regions have therefore become a bridge between China and the world and the 

lifeline of China’s external communication, transportation, and trade.

Third, China’s sea area is a treasure trove of the strategic resources necessary for the 

country’s survival and development. It is one of the largest and richest sea areas in the 

world, full of biological resources, energy resources, mineral resources, and seawater 

resources. Indeed, the ocean provides China’s most important source of protein for human consumption. China’s maritime regions contain two billion acres of sea area with a 

depth of thirty meters or less, amounting to a billion acres of Chinese “farmland.” More 

important, the income from one Chinese acre of high-production seawater is equal to 

that from the production of ten acres of Chinese farmland. China’s edible sea salt and 

industrial sea salt production provide 80 percent of the total national salt output, the 

highest percentage of any country in the world. Additionally, Chinese sea areas are a 

primary source of hydrocarbons in the Pacific Ocean. It is estimated that the petroleum 

reserves under traditional Chinese coastal territories in the South China Sea may reach 

twenty or thirty billion tons. Likewise, the natural gas reserves reach several trillion cubic 

meters in one of the four biggest maritime oil and gas fields in the world, sometimes 

called a “second Persian Gulf.” Recently, the world’s biggest field of natural gas hydrates 

(flammable ice) was discovered under the South China Sea, the explored reserve of 

which amounts to about half of China’s total oil and gas resources.

In addition, rich manganese nodule deposits, cobalt, and other mineral resources 

have been found in China’s sea areas, which also contain manganese, nickel, and 

molybdenum—essential raw materials for modern aerospace industrial uses. In recent 

times, China’s resource consumption has kept growing while land resources have been 

simultaneously shrinking, making marine resources incontrovertibly crucial to China’s 

future development. Finally, although China possesses a large sea area, its average length 

of coastline per unit of land area ranks only ninety-fourth in the world. The ratio of 

China’s sea area to land area is less than one-third of the world’s average, and China’s 

average sea area per person is one-tenth of the world’s median level. As such, China is 

also a country that possesses a small sea area. Therefore, every inch of “blue-colored 

territory” is extremely precious to China.

From Inshore Defense to Offshore Defense

On 23 April 1949, the People’s Liberation Army (PLA) crossed the Yangtze River and 

liberated Nanjing. From that point on, the PLA began to build a people’s navy, drawing 

China out of the dilemma of “no defense of the sea.” From the 1950s to the 1970s, China 
18 china maritime studies

suffered from containment and was blockaded by exterior powers. Its power on the sea 

was weak, and the primary mission of China’s navy was to prepare for combat defense 

of inshore waters. Since the 1980s, the Chinese navy has gradually completed a strategic 

transition to offshore defense, along with the growth of China’s maritime interests and 

naval operational capability. In the twenty-first century, in order to combat nontraditional maritime security threats and to meet the challenge of local war in the information age, the Chinese navy, by adhering to the nation’s offshore defensive strategy, has 

strived to develop the capability for cooperating on the open sea, improving her naval 

transformation, and gradually developing a modernized naval force with multiarms 

capability and combat skills for both nuclear and conventional combat operations. The 

Chinese navy’s primary missions are to

• Defend China’s homeland territory and the national security of China’s maritime 

regions by resisting external invasions from the sea

• Protect China’s territorial integrity and unity and prevent any separatist forces from 

splitting the national territory

• Protect the sovereignty of national maritime territories and guarantee the security of 

national waters and their respective islands from invasion 

• Protect national maritime interests and rights and guarantee the security of marine 

resources in China’s lawful exclusive economic zone and continental shelf 

• Defend the security and smooth operation of China’s naval sea-lanes, maritime transportation lanes, and maritime trade lanes and guarantee China’s main artery and 

lifeline from outward threats

• Maintain the stability of Chinese sea areas from piracy, maritime smuggling, illegal 

narcotics trafficking, transnational crime, and maritime terrorism

• Provide support for the fair and peaceful resolution of maritime disputes according 

to international law 

• Participate in peacekeeping operations, based on United Nations resolutions and 

under a UN framework

• Conduct international maritime security discussions and cooperate in the area of 

nontraditional security in order to improve mutual understanding and trust between 

the navies of all countries. 

Although China has made considerable progress in its naval modernization over the 

past several years, the Chinese navy is still a regional naval force, maintaining an activedefense military strategy, taking offshore defense as its substantive characteristic. Three 

main points clarify this strategy. First, the nature of China’s naval force has always been 
military activities in the eez 19

defensive, and the construction of China’s new naval forces will not surpass, in either 

scale or operations, China’s self-defense needs. China will not threaten other countries’ 

legitimate rights and interests or undertake any invasion or expansion of territory from 

the sea. Second, China’s naval forces will undertake operations in China’s offshore waters 

as their main area in which to carry out national defense activities. Since the focus of 

China’s marine interests is offshore waters, the structure and capabilities of China’s naval 

forces will reflect this offshore approach. Nevertheless, China needs to develop certain 

open-sea mobility capabilities and to develop cooperation with others, but it will not 

patrol around the world. It is not necessary for China to do so, nor is China willing to 

compete, or capable of competing, with the United States on the open seas. Third, China 

is active and firm in defending its legitimate rights and interests. This is the most basic 

right and responsibility of a sovereign state. Given the lessons of history, including being 

invaded and divided, China is especially sensitive and firm on issues of sovereignty and 

territorial integrity. The Chinese government and the Chinese people will not compromise any vital interests related to national sovereignty and security. 

The Necessity of Building Mutual Trust between Chinese and American 

Maritime Forces 

Both China and the United States are big powers in the world. One is the biggest 

developing nation, while the other is the biggest developed country. Under the context 

of globalization in the post–Cold War era, the interests between China and the United 

States keep interpenetrating and merging with growing interdependency. China and 

the United States must deal with more and more mutual security threats and security 

demands. Both countries are undertaking more responsibility for maintaining regional 

stability and world peace, while promoting humanity’s civilization and progress. In dealing with issues such as climate change, the international financial crisis, nonproliferation, the security of international waterways, and antiterrorism, China and the United 

States must undertake active, close, and comprehensive security cooperation, including 

maritime security cooperation. The development of Chinese maritime forces increases 

the possibilities for the United States and China to undertake maritime security cooperation and undertake together the responsibility of international security.

The development of Chinese maritime forces is positive for American maritime interests, not a negative or even a zero-sum game. As Hillary Clinton, U.S. secretary of state, 

has stated, “Both sides will make contributions to each other’s development and benefit 

from it.” Nevertheless, Sino-U.S. maritime relations are far behind other, more developed aspects of the bilateral relationship—not only behind both parties’ security needs 

but behind the development of Sino-U.S. relations in other areas. In a word, they are the 
20 china maritime studies

“short board” in bilateral relations.1 The recent friction in China’s exclusive economic 

zone in the South China Sea highlighted this point.

Three problems have to be solved to change this abnormal situation. First, the two 

countries need to get past Cold War thinking. Our world is composed of five continents 

and four oceans, so U.S. Navy vessels have enough space for sailing. However, it is hard 

to understand why American surveillance ships showed up off China’s shores, thousands 

of miles from home. The Cold War ended more than twenty years ago, so Cold War 

concepts are already outdated. If the United States, in its strategic thinking, still regards 

China as the substitute of the former Soviet Union or a potential strategic adversary to 

defend against, bilateral military relations will be hard to improve, and bilateral friction 

will continue.2

Second, the two countries need to respect and take into account each other’s key national security interests. Although the legal status of the exclusive economic zone is not 

exactly the same as territorial waters under international law, the exclusive economic 

zone is absolutely not equivalent to the high seas; rather, it is a special area governed by 

the coastal state. At the third summit on the law of the sea, a Canadian representative 

pointed out that “the exclusive economic zone is not only about the issue of resources, 

but also relates to the coastal state’s marine environment and the authority to safeguard 

it.” Both the United Nations and the law of the sea share the same mission: peace.

The American surveillance ship USNS Impeccable did not operate on the high seas. 

Even if it had, according to UNCLOS, “The high seas should be reserved for peaceful 

purposes.”3

 The American surveillance vessel did not conduct general oceanographic 

research. Even if it had, according to UNCLOS articles 246 and 240, this kind of activity should only be undertaken for “peaceful purposes,” as “the primary principle,” and 

consent should be granted by the coastal state six months in advance of the start of the 

operations. 

Respect for sovereignty and jurisdiction is a basic principle of international law. Although UNCLOS has no special article to define clearly the limits of military activities in 

the exclusive economic zones of other countries, the basic legislative purpose and legislative spirit of UNCLOS is that operations may be undertaken “only for peaceful purposes.” Undoubtedly, compared with civilian oceanographic research, all military activities 

in the exclusive economic zone of another country should be undertaken with the highest respect for the coastal state’s jurisdiction. Any military activity that is harmful to the 

coastal state’s sovereignty or security in the exclusive economic zone is illegal and cannot 

be tolerated. To do otherwise would be to mock and blaspheme international law.

It is stated in UNCLOS that other states in the exclusive economic zone of a coastal 

state have freedoms of navigation, overflight, and laying submarine cables and 
military activities in the eez 21

pipelines.However, the same provisions also specify that all states, in the exercise of these 

freedoms, “shall have due regard to the rights and duties of the coastal State and shall 

comply with the laws and regulations adopted by the coastal State in accordance with the 

provisions of [the] Convention and other rules of international law in so far as they are 

not incompatible” with other provisions related to the exclusive economic zone.4

 When 

a vessel navigates in the exclusive economic zone of a coastal state, its actions should 

be “harmless,” undertaken in “good faith” and with “no abuse of rights.” If a military 

surveillance ship conducts military intelligence-gathering activities in another state’s 

exclusive economic zone, it is hard to explain this as friendly behavior that is “harmless” 

and undertaken in “good faith.” Additionally, if the U.S. Navy does not plan to open its 

door for other countries’ surveillance ships to conduct military intelligence-gathering 

operations in the sea areas off Norfolk and Newport, why does not the United States 

allow China the same?

Third, the two countries need to set rules for maritime activities and to undertake SinoAmerican confidence-building mechanisms. In order to avoid accidents on the sea, deal 

effectively with any friction, and prevent escalation of emergencies, it is necessary to set 

the rules for maritime activities and to establish Sino-American confidence-building 

mechanisms as soon as possible.

These mechanisms should at a minimum include the following several points. First, the 

United States and China should build a communication mechanism to provide advance 

notification or prompt reporting of maritime activities in order to avoid any misjudgments. Second, the two countries should build a negotiation framework. We should 

undertake dialogue and discussion about various issues on various levels regularly or 

irregularly, in order to coordinate and resolve problems in military interactions. It is 

more important to hold high-level strategic conversations regularly. Third, China and 

the United States should build restraint mechanisms. Both countries should restrain 

their own behavior, not pushing the envelope intentionally or against the interest of the 

other party. Fourth, we should build cooperation mechanisms. The Chinese and U.S. 

navies have many areas within the field of nontraditional security within which they can 

cooperate, such as the exchange of information, maritime search and rescue, counterpiracy, and antiterrorism. 
22 china maritime studies

Notes

1. Editor’s note: During the conference, General 

Peng elaborated on this point by describing the 

overall U.S.-Chinese relationship as a barrel filled 

with water. Just as water in a barrel can rise only 

to the level of its shortest board, so too is a more 

cooperative overall U.S.-Chinese relationship 

held back by the challenges in military relations 

between the two countries. 

2. Editor’s note: General Peng told a second story to 

elaborate this point. He described a Chinese-style 

house surrounded by a wall with few windows 

and a gated entrance. A home owner who sees a 

man peering in his window suspects him to be a 

thief and treats him accordingly, but a man who 

comes to the front gate and requests the home 

owner to allow him to enter is treated as a friend, 

welcomed in, and offered tea. The reference to 

U.S. surveillance flights and survey operations 

was quite clear. 

3. United Nations, United Nations Convention on 

the Law of the Sea of 10 December 1982, effective 

16 November 1994, art. 301.

4. Ibid., art. 58.
The U.S. Navy Special Mission Program has twenty-five ships that conduct a variety 

of missions in foreign exclusive economic zones (EEZs) and on the high seas, 

including oceanographic surveys, underwater surveillance, hydrographic surveys, missile 

tracking, and acoustic surveys, to name but a few. All of these activities are conducted 

consistently with international law, including the 1982 Law of the Sea Convention 

(UNCLOS), and are not subject to coastal jurisdiction or control in the EEZ.1

 The 

special-mission ships (SMSs) are either U.S. government owned or operated and are 

used only on noncommercial government service; they are therefore entitled to sovereign immunity from coastal-state interference.2

 Most of the SMSs are unarmed vessels 

(except small arms for self-defense) and are operated by civilian crews who work for 

private companies under contract to the Navy’s Military Sealift Command (MSC)—only 

three are manned by MSC civil-service mariners. Technical work and communication 

support are conducted by embarked military personnel and Department of Defense 

civilian technicians. 

China’s assertions that it can regulate SMS survey activities in the EEZ and that SMS 

activities are equivalent to marine scientific research (MSR) and are therefore subject 

to coastal-state jurisdiction are misplaced and have no foundation in international law, 

including the Law of the Sea Convention (LOSC, otherwise UNCLOS). Similarly, China’s 

assertion that SMS activities are inconsistent with the “peaceful purposes” provisions of 

the LOSC (i.e., articles 88, 141, and 301) is also not supported by state practice or the 

plain language of the convention.

Coastal-State Rights and Jurisdiction in the EEZ

The EEZ was created by UNCLOS and was established for the sole purpose of giving 

coastal states greater control over the resources adjacent to their coasts out to two hundred nautical miles. Article 56, which describes the rights, jurisdiction, and duties of the 

coastal state in the EEZ, does not, however, provide for residual coastal-state security 

Raul (Pete) Pedrozo

U.S. Views

Coastal State Jurisdiction over Marine Data Collection 

in the Exclusive Economic Zone 

CHAPTER TWO
24 china maritime studies

interests in the EEZ. In fact, early efforts by a handful of developing nations, like China, 

El Salvador, and Peru, to “territorialize” the EEZ in order to broaden coastal-state authority in the new zone to include residual competences and rights (such as security interests) in article 56 were rejected by the majority of the delegations at the Third United 

Nations Conference on the Law of the Sea (UNCLOS III).3

 What the conference negotiators finally agreed on was articles 55, 56, 58, and 86, which accommodate the various 

competing interests of coastal states and other states in the EEZ. Articles 55, 56, and 86 

make clear that the EEZ is sui generis and that certain high-seas freedoms relating to 

natural resources and MSR do not apply in the EEZ. However, articles 58 and 86 make 

equally clear that all other high-seas freedoms (i.e., non–resource related) and other 

internationally lawful uses of the seas related to those freedoms (e.g., military activities) 

apply seaward of the territorial sea and may be exercised by all states in the EEZ without 

coastal-state notice or consent.4

 In this regard, it is also important to note that China 

did not reserve its position on this issue at the time it ratified the convention in 1996. Of 

the four statements China made at the time of ratification, only one—a requirement for 

prior notice to or consent of the coastal state before warships can transit the territorial 

sea in innocent passage—is related to military activities.5

 China’s current efforts to use 

article 59 to argue that it retains certain residual rights in the EEZ is simply an attempt 

to resurrect the argument it made and lost at UNCLOS III regarding security interests 

in the EEZ. China’s effort to include security interests in the bundle of rights retained by 

the coastal state in the EEZ was rejected at UNCLOS III. Therefore, there is no conflict 

with regard to coastal-state security interests to resolve under article 59—such interests 

simply do not exist in the EEZ. Moreover, even if the mistaken assumption is accepted 

that a coastal state retains residual security rights in the EEZ, since a “freedom” is a 

broader species than a “right” under international law, the high-seas freedoms enjoyed 

by the international community in the EEZ clearly trump any residual rights that coastal 

states may possess in the EEZ.6

The fact that articles 58 and 86 retain much of the “international” character of, and 

preserve most high-seas freedoms in, the EEZ should not be confused, however, as nonrecognition of the EEZ regime. This issue was thoroughly discussed during UNCLOS III, 

as delegations struggled to define the “high seas” in article 86. By the fourth session, the 

emphasis had shifted away from defining the “high seas” and attention focused instead 

on ensuring that the regime of the high seas would apply in the EEZ to the extent it was 

not incompatible with Part V.7

 Discussions during the sixth session resulted in a text 

emphasizing that the high seas constituted a separate maritime zone from the EEZ but 

preserving certain user-state rights and high-seas freedoms in the EEZ.8

 The end result 

of this debate was article 86, the first sentence of which makes clear that the EEZ is a sui 

generis zone that is not part of the high seas. However, the second sentence indicates 
military activities in the eez 25

that nothing in article 86 abridges the “freedoms enjoyed by all States in the exclusive 

economic zone in accordance with article 58.” In other words, any activity that is lawful 

on the high seas, to include military oceanographic survey and surveillance activities, 

can be conducted in the EEZ without coastal-state notice or consent, subject only to the 

rights and jurisdiction conferred on the coastal state by Part V of the convention. So, 

for example, the high-seas freedoms of fishing, constructing artificial islands and other 

installations, and conducting MSR are all subject to coastal-state control in the EEZ. 

However, all other customary international law rights, duties, and freedoms reflected in 

Part VII—for example, navigation, overflight, laying of submarine cables and pipelines, 

hydrographic surveys, military activities (such as surveillance and reconnaissance operations, oceanographic surveys, military exercises, use of weapons, flight operations, etc.), 

immunity of warships and other noncommercial vessels, prohibition of slave trade, 

repression of piracy, suppression of unauthorized broadcasting, suppression of narcotics 

trafficking, approach and visit, rendering assistance, and hot pursuit—may lawfully be 

conducted in the EEZ without coastal-state notice or consent. 

The bottom line is that the final text of article 86 recognizes the existence of the new 

regimes of the EEZ and archipelagic waters, which were previously considered highseas areas, while at the same time retaining the distinction that had previously existed 

between the high seas, on one hand, and the territorial sea and internal waters on the 

other.9

 The term “sovereign rights” was deliberately chosen to make a clear distinction 

between coastal-state rights and jurisdiction in the EEZ and coastal-state authority in 

the territorial sea, where coastal states enjoy a much broader and more comprehensive 

right of “sovereignty.”10 China has argued that the United States is reluctant to recognize 

the existence of the EEZ and continues to refer to the area as “international waters.” Such 

an argument is nonsense. The United States has itself claimed an EEZ consistent with 

the provisions of UNCLOS since 1983.11 It is the largest EEZ in the world, encompassing 

an area over 3.4 million square nautical miles.12 The United States, therefore, has nothing 

to gain and everything to lose by denying the existence of the EEZ. 

American officials should, however, take note that early efforts in 1972 and 1973 to make 

a distinction between waters subject to coastal-state sovereignty (i.e., territorial sea, archipelagic waters, and internal waters) and the high seas by using the term “international 

seas” to define ocean areas not subject to coastal-state sovereignty or jurisdiction were 

rejected by UNCLOS III. Albeit well-intentioned, the U.S. tendency to use the term “international waters” to describe which navigational rights and freedoms apply in the EEZ 

has been misunderstood by China and others to reflect American opposition to the existence of the EEZ. The rejection of this term in 1973 emphasizes the need for the United 

States to refrain from using the term “international waters” when referring to legitimate 

military activities in foreign EEZs, particularly when referring to U.S. military activities 
26 china maritime studies

in China’s claimed EEZ. Continued use of the term “international waters” appears to be 

an attempt by the United States to resurrect the 1970s discussions, clouds the current 

debate on this issue, and allows China to divert attention from the real issues—its illegal 

maritime claims and its unsafe and aggressive tactics when intercepting U.S. ships and 

aircraft engaged in legal activities in and over China’s claimed EEZ. 

Within the EEZ, article 56 provides that the coastal state has sovereign rights for the 

purposes of exploring, exploiting, conserving, and managing the natural resources of the 

zone and with regard to other activities for the economic exploitation and exploration of 

the zone. The coastal state also has jurisdiction limited to the establishment and use of 

artificial islands, installations and structures, MSR, and the protection and preservation 

of the marine environment.

Article 56 does not, however, provide for coastal jurisdiction over survey activities in 

the EEZ. In fact, various provisions of UNCLOS discussed below distinguish between 

research and survey activities. With regard to MSR, China correctly points out that it has 

the authority to regulate MSR in the EEZ. Article 246 of the convention provides that 

MSR in the EEZ and on the continental shelf “shall be conducted with the consent of the 

coastal State.”13 However, article 246 further provides that the coastal state shall normally 

grant its consent for MSR projects by other states in its EEZ or on its continental shelf. 

Consistent with UNCLOS, article 9 of the Law of the People’s Republic of China (PRC) 

on the Exclusive Economic Zone and the Continental Shelf (1998) provides that MSR 

by any international organization, foreign organization, or individual in the EEZ or the 

continental shelf of the PRC “must be subject to the approval of the competent authorities” of the PRC and must conform to the laws and regulations of the PRC.14 Specific 

guidelines for submitting MSR requests for approval by Chinese authorities are contained in the Provisions on the Administration of Foreign-Related Maritime Scientific 

Research.15 Most of these guidelines also appear to be consistent with UNCLOS Part 

XIII, which contains, inter alia, detailed provisions on coastal-state jurisdiction over 

MSR in the territorial sea, in the EEZ, and on the continental shelf.

In 2002 China adopted the Surveying and Mapping Law of the People’s Republic of 

China.16 Although the law is mostly concerned with terrestrial surveying and mapping, 

article 2 provides that all surveying and mapping activities conducted in the domain 

of the PRC “and other sea areas under the jurisdiction” of the PRC “shall comply with 

this Law.” Article 7 requires foreign organizations and individuals that conduct surveying and mapping in the domain of the PRC “and other sea areas under the jurisdiction” 

of the PRC to obtain the approval of the competent administrative department and 

competent department of the armed forces. Failure to obtain prior approval can result in 

a fine of up to 500,000 yuan and expulsion from the country.17 Surveying and mapping 

are broadly defined in article 2 to include “surveying, collection and presentation of the 
military activities in the eez 27

shape, size, spatial location and properties of the natural geographic factors or the manmade facilities on the surface, as well as the activities for processing and providing of the 

obtained data, information and achievements.” 

To the extent that this law purports to regulate hydrographic surveys and U.S. military 

activities in the EEZ, to include military oceanographic surveys and surveillance activities, it is inconsistent with customary international law, state practice, and the plain 

language of UNCLOS.

Categories of Marine Data Collection 

China’s position with regard to coastal-state control over marine data collection in the 

EEZ misses one important point—that marine data collection is much broader than just 

MSR and includes all types of collection activities at sea, including hydrographic surveys 

and military marine data collection (e.g., oceanographic surveys and surveillance activities by SMSs). The use of the term “marine scientific research” was deliberate, intended 

to distinguish MSR from other types of marine data collection that are not resource 

related, such as hydrographic surveys and military marine data collection.18 International law applies different rules to each of these activities, depending on where the activity 

takes place. 

UNCLOS article 56 grants coastal states jurisdiction over MSR in the EEZ, but hydrographic surveys and military marine data collection are not MSR and are therefore not 

subject to coastal-state jurisdiction in the EEZ. In this regard, the Bureau of Oceans 

and International Environmental and Scientific Affairs, the office within the U.S. State 

Department responsible for formulating and implementing American policy with regard 

to the conduct of MSR in waters under American jurisdiction, excludes a number of 

data-collection activities from the scope of MSR, including hydrographic surveys (for 

enhancing the safety of navigation); military activities, including military marine data 

collection; environmental monitoring and assessment of marine pollution pursuant to 

Part XII of UNCLOS; the collection of marine meteorological data and other routine 

ocean observations (including the ocean observation programs of the WMO-IOC 

Joint Technical Commission on Oceanography and Marine Meteorology and the Argo 

program); and activities related to submerged wrecks or objects of an archaeological and 

historical nature.19 Advance consent of the United States to engage in data collection in 

waters subject to U.S. jurisdiction is required only for MSR, and then only if any portion 

of the MSR is conducted

• Within the U.S. territorial seas; or

• Within the U.S. EEZ and involves the study of marine mammals or endangered species; or
28 china maritime studies

• Within the U.S. EEZ and requires taking commercial quantities of marine resources; 

or

• Within the U.S. EEZ and involves contact with the U.S. continental shelf.20

All other data-collection activities, including hydrographic surveys and military marine 

data-collection activities, can be conducted in the U.S. EEZ without advance notice to or 

consent of the United States.

UNCLOS does not define MSR or hydrographic surveys with a great deal of specificity. 

However, MSR may be generally defined as “those activities undertaken in the ocean 

and coastal waters to expand scientific knowledge of the marine environment and its 

processes.”21 It includes physical oceanography, marine chemistry and biology, scientific 

ocean drilling and coring, geological and geophysical research, and other activities with 

scientific purposes. The data collected are normally shared freely with the public and the 

scientific community.

The term hydrographic survey is generally defined as the “obtaining of information for 

the making of navigational charts and safety of navigation.”22 It has been defined by the 

United Nations as “the science of measuring and depicting those parameters necessary 

to describe the precise nature and configuration of the sea-bed and coastal strip, its 

geographical relationship to the land-mass, and the characteristics and dynamics of the 

sea.”23 Hydrographic surveys involve collection of information about water depth, the 

configuration and nature of the natural bottom, the directions and force of currents, 

the heights and times of tides and water stages, and hazards to navigation. The data are 

collected for the purpose of producing nautical charts and similar products to support 

safety of navigation. Hydrographic surveys are, therefore, not the same as MSR, in that 

they include the collection and analysis of different types of data and have at their core a 

fundamentally different purpose. 

Military marine data collection is also not MSR. It refers to marine data collected for 

military, not scientific, purposes. The data collected can be either classified or unclassified and are normally not released to the public or the scientific community unless 

they are unclassified and were collected on the high seas (i.e., beyond the two-hundrednautical-mile EEZ). Military marine data collection can involve oceanographic, marine 

geological and geophysical, chemical, biological, or acoustic data.24

In short, the primary difference between MSR and military marine data collection and 

hydrographic surveys is how the data are used once they are collected. Although the 

means of data collection may be the same as or similar to that used in MSR, and though 

it may be difficult for the coastal state to differentiate between MSR and other datacollection activities, the information obtained during military marine data collection 

or a hydrographic survey is intended for use by the military or to promote safety of 
military activities in the eez 29

navigation, respectively. It may be that China believes the United States is providing data 

collected by its SMSs to Japan to support and bolster the latter’s EEZ and continentalshelf claims in the East China Sea. Or China may believe that data collected in the Yellow 

Sea are being shared with South Korea or that data collected in the South China Sea are 

being shared with the other Spratly claimants to bolster their maritime and continentalshelf claims in the region. However, nothing could be farther from the truth. While some 

of these data may have economic utility, even though they were not collected for that 

purpose, military marine data collected by the U.S. armed forces in foreign EEZs are 

used exclusively for military purposes and to promote safety of navigation and are not 

shared with the general public. Based on these distinctions and the plain language of 

UNCLOS, military marine data collection and hydrographic surveys remain high-seas 

freedoms and may be conducted in foreign EEZs without coastal-state notice or consent, 

consistent with article 58 of UNCLOS.

U.S. Military Marine Data Collection in the EEZ

Military marine data collection by SMSs may be divided into two basic categories—

surveys and surveillance. Both of these missions are lawful military activities that may be 

conducted in the EEZ without coastal-state notice or consent. 

Surveillance Activities

Five ocean-surveillance ships directly support the Navy by using both passive and active 

low-frequency sonar arrays to detect and track submarines. Additionally, these ships 

help provide locating data that promote the navigational safety of various undersea 

platforms. China has argued that such activities pose a threat to its national security and 

are inconsistent with the peaceful-purposes provisions of UNCLOS. China’s position is 

not supported by state practice or a plain reading of the convention.

Intelligence collection is addressed in only one article of UNCLOS—article 19. Foreign 

ships transiting the territorial sea in innocent passage may not engage in “any act aimed 

at collecting information to the prejudice of the defense or security of the coastal state.” 

No similar restriction appears in Part V of the convention regarding the EEZ. Under 

generally accepted principles of international law, any act that is not specifically prohibited in a treaty is permitted.25 Therefore, intelligence collection by SMSs in the EEZ 

without coastal-state consent is implicitly permitted under article 58 of the convention. 

With regard to China’s argument that the peaceful-purposes clauses of UNCLOS make 

it unlawful for states to collect intelligence in and above a coastal state’s EEZ, article 

301 of the convention provides that states 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 
30 china maritime studies

the United Nations.”26 Similar language can be found in article 2(4) of the UN Charter.27

The convention, however, makes a clear distinction between “threat or use of force” 

and other military activities, such as intelligence collection. Article 19(2)(a) mirrors 

the language of articles 39 and 301, providing that ships transiting the territorial sea in 

innocent passage shall not engage in “any threat or use of force against the sovereignty, 

territorial integrity or political independence of the coastal State, or in any other manner in violation of the principles of international law embodied in the Charter of the 

United Nations.” However, because intelligence collection is not considered a “threat or 

use of force,” drafters specifically enumerated additional military activities that would 

be considered a violation of innocent passage in the territorial sea. Articles 19(2)(b)–(f) 

reflect these additional restrictions. Article 19(2)(c), for instance, specifically restricts 

ships transiting the territorial seas in innocent passage from engaging in “any act aimed 

at collecting information to the prejudice of the defense or security of the coastal State.” 

Intelligence collection is therefore not covered by the peaceful-purposes provisions of 

the convention. Rather, beyond the territorial sea it is a lawful, nonaggressive military 

activity that is consistent with UNCLOS and the UN Charter. Intelligence collection can 

therefore be conducted in the EEZ without coastal-state notice or consent.

State practice supports this conclusion.28 Since the end of World War II, surveillance and 

reconnaissance operations (aerial, surface, and subsurface) beyond the territorial sea of 

another nation have become a matter of routine. Today, many nations, including China, 

engage in such activities on a routine basis. During the height of the Cold War, it was 

not uncommon for U.S. and NATO ships departing port to be met by a Soviet surveillance ship (AGI) at the outer edge of the territorial sea. Such activities were acceptable 

so long as the Soviet AGIs complied with their obligations under the 1972 International 

Regulations for Preventing Collisions at Sea (COLREGS) and the U.S.-USSR Prevention 

of Incidents on and over the High Seas agreement (INCSEA).29 The United States and its 

NATO allies responded to these activities with great tolerance. For example, in February 1974 a Soviet reconnaissance aircraft that was conducting a surveillance mission off 

the coast of Alaska ran low on fuel and had to make an emergency landing at Gambell 

Airfield in Alaska.30 The crew remained overnight and was provided space heaters and 

food by the American personnel. The plane was refueled the next day and allowed to 

depart without further incident. Similarly, in March 1994 a Russian surveillance aircraft 

monitoring a NATO antisubmarine warfare exercise ran low on fuel and made an emergency landing at Thule Air Base in Greenland.31 Again, the crew was fed and the aircraft 

was refueled and allowed to depart without further delay. In short, reconnaissance and 

surveillance activities at sea and in the air beyond the twelve-mile limit are nothing new 

and are well understood. What is new today is the aggressive, unprofessional action being taken by Chinese ships and aircraft conducting the intercepts.
military activities in the eez 31

Chinese ships and aircraft, in particular, are increasingly operating in foreign EEZs 

throughout the Asia-Pacific region as China continues to develop a blue-water naval 

capability and expand its submarine fleet. As an example, in 2003, the Japanese government recorded six incursions into Japanese waters by Chinese naval vessels that 

were surveying “subsea routes for Chinese submarines to enter the Pacific”; two of the 

territorial-sea violations were by Chinese submarines near Kagoshima.32 The number 

of Chinese incursions jumped to thirty-four in 2004.33 Similarly, Chinese research ships 

have increased their operations in Japan’s EEZ;34 in addition, PLAN submarines are deploying farther from the Chinese coast to conduct survey and reconnaissance missions.35

Other examples of increased Chinese military incursions in foreign EEZs, including 

survey and surveillance activities, include

• On 12 November 2003, a People’s Liberation Army Navy (PLAN) Ming-class submarine was spotted by a Japan Maritime Self-Defense Force (JMSDF) P-3C twentyfive miles east of Kyūshū Island. The submarine transited the Osumi Strait between 

Kyūshū and Tanega-Shima. Chinese officials indicated that the submarine had been 

engaged in “routine maritime training” at the time.36

• On 6 July 2004, a Chinese naval survey vessel was spotted within Japan’s EEZ by a 

JMSDF P-3C. When asked to explain the presence of the ship in Japan’s EEZ, Chinese 

officials indicated that the “ship was engaged in military activities, thus obviating the 

need for [prior] notification” to the Japanese government.37

• On 12 July 2004, a Japanese coast guard P-3C spotted a Chinese maritime research 

vessel in Japan’s claimed EEZ south-southwest of Okinotori Island.38

• On 13 July 2004, the Xiangyanghong (9), a Chinese government research vessel, was 

spotted conducting survey operations within Japan’s EEZ by a Japanese coast guard 

cutter.39

• On 20 July 2004, the PLAN ship Dongce (226) was spotted taking soundings in Japan’s 

EEZ.40

• On 21 July 2004, the Xiangyanghong (9) was again spotted in the Japanese claimed 

EEZ, southwest of Okinodaito Island, conducting oceanographic surveys and mapping the ocean floor.41

• From 6 to 9 August 2004, the PLAN survey ship Nandiao (411) was spotted conducting operations in Japan’s EEZ.42

• On 10 November 2004, a PLAN Han-class submarine spent two hours submerged in 

Japanese territorial waters. Chinese officials indicated that the submarine was on a 

training mission and had entered the Japanese territorial sea for “technical 
32 china maritime studies

reasons.”43 The submarine is believed to have first deployed to waters near the U.S. 

territory of Guam before transiting to Japan.44

• On 26 October 2006, a Chinese Song submarine shadowed the USS Kitty Hawk (CV 

63) and surfaced about five miles from the carrier. The Kitty Hawk battle group was 

conducting routine exercises in the vicinity of Okinawa.45

• In October 2008, two Chinese submarines were detected conducting underwater surveillance of the USS George Washington (CVN 73) off the coast of South Korea.46

• On 11 June 2009, a Chinese submarine collided with the towed sonar array of USS 

John S. McCain (DDG 56) off the Philippine coast approximately 144 nautical miles 

from Subic Bay.47 

China has argued that its military activities in the East China Sea have occurred in areas 

that are in dispute with Japan and that Japan, therefore, cannot accuse China of encroaching on its EEZ, because the two countries have yet to delimit their EEZ boundaries.48 If that is true, however, the United States could also argue that it is not encroaching 

on China’s EEZ in the East China Sea because the area is in dispute with Japan, or in 

the South China Sea because of the overlapping claims by the five other Spratly Islands 

claimants. A similar argument could be made in any EEZ area claimed by China using 

its illegal straight baselines, none of which are recognized by the United States. If China 

wishes to rely on this argument, it must be prepared to accept reciprocal arguments by 

the United States and Japan in all of these contested waters.

Military Oceanographic Surveys

The Navy operates six multipurpose oceanographic survey ships that perform acoustic, 

biological, physical, and geophysical surveys to enhance its information on the marine 

environment. These ships use multibeam, wide-angle, precision sonar systems that allow them to chart broad areas of the ocean floor. A seventh oceanographic survey ship 

collects in coastal regions around the world data that are used to improve technology in 

undersea warfare, enemy ship detection, and charting of the world’s coastlines. These 

vessels do not engage in MSR. Data collected by these ships are used exclusively by the 

U.S. armed forces for military purposes.

Restrictions on Marine Data Collection

Various provisions of UNCLOS place restrictions on marine data collection. However, 

these provisions also clearly distinguish between research activities, on the one hand, 

and survey activities, on the other. Article 19(2)(j) provides that carrying out “research 

or survey activities” is inconsistent with innocent passage through the territorial sea. 

Similarly, article 40 provides that ships engaged in transit passage, “including marine 
military activities in the eez 33

scientific research and hydrographic survey ships, may not carry out any research or survey activities without the prior authorization of the States bordering straits.” The same 

restrictions apply to ships engaged in archipelagic sea-lanes passage (article 54) or ships 

transiting archipelagic waters in innocent passage (article 52). Article 56, on the other 

hand, grants coastal states jurisdiction in the EEZ only over MSR—survey activities are 

not mentioned in article 56. Similarly, Part XIII of the convention applies only to MSR, 

not to other “survey” activities.

Based on these provisions, it is clear that coastal-state consent is required for MSR and 

survey activities in the territorial sea and archipelagic waters, as well as for MSR and 

survey activities in international straits and archipelagic sea-lanes. Coastal-state consent 

is required for MSR in the EEZ. It is equally clear, however, that coastal-state consent is 

not required for survey activities, including hydrographic and military oceanographic 

surveys, in the EEZ. These activities remain high-seas freedoms that may be exercised 

freely in the EEZ, without coastal-state interference, consistent with UNCLOS article 58. 

China’s position on the legality of military activities in the EEZ, including oceanographic 

surveys and surveillance activities, clearly represents the minority view. Of the 192 member states of the United Nations, only sixteen support China’s position—twenty-three, 

if one counts the seven nations that claim territorial seas in excess of twelve nautical 

miles.49 Of these twenty-three nations, despite the fact that American SMSs have charted 

over three-fourths of the world’s coastlines, only China has operationally interfered 

with U.S. military marine data-collection activities in the EEZ.50 State practice therefore 

clearly supports the American position that military activities that are consistent with 

the UN Charter may be conducted in the EEZ without prior notice to, or consent of, the 

coastal state. 

Conclusion 

The EEZ encompasses nearly 38 percent of the world’s oceans, an expanse that twentyfive years ago was considered to be high seas. If the PRC argument that military activities 

in general and military marine data collection in particular are prohibited in the EEZ 

without coastal-state consent were to become generally accepted, SMSs would be denied 

access to all of the South China Sea, the Yellow Sea, the East China Sea, the Sea of Japan, 

the Philippine Sea, the Sea of Okhotsk, the Caribbean Sea, the North Sea, the Baltic Sea, 

the Mediterranean Sea, the Gulf of Aden, the Red Sea, the Persian Gulf, most of Oceania, 

and large swaths of the Indian Ocean. Such a result was clearly not envisioned during 

the UNCLOS negotiations and would never have been accepted by the maritime powers. 

As noted above, China’s attempt to assert more security jurisdiction was specifically 

rejected during the UNCLOS negotiations. The position accepted by the overwhelming 
34 china maritime studies

majority of the delegations present at UNCLOS III was clearly articulated by the American delegation in 1983:

All States continue to enjoy in the [EEZ] traditional high seas freedoms of navigation and 

overflight and the laying of submarine cables and pipelines, and other internationally 

lawful uses of the sea related to those freedoms, which remain qualitatively and quantitatively the same as those freedoms when exercised seaward of the zone. Military operations, 

exercises and activities have always been regarded as internationally lawful uses of the sea. 

The right to conduct such activities will continue to be enjoyed by all States in the exclusive 

economic zone.51

China can therefore expect the United States to continue to conduct oceanographic 

surveys and surveillance activities in any state’s EEZ, including China’s, without prior 

notice or consent. 

1. United Nations [hereafter UN], United Nations 

Convention on the Law of the Sea of 10 December 

1982, effective 16 November 1994 [hereafter 

UNCLOS], arts. 56, 58, and 87.

2. Ibid., art. 96.

3. Myron H. Nordquist, ed. in chief, Satya N. 

Nandan and Shabtai Rosenne, gen. eds., United 

Nations Convention on the Law of the Sea 1982: 

A Commentary (Herndon, Va.: Brill, 1993), vol. 2 

[hereafter Commentary, vol. 2], pp. 529–30.

4. Myron H. Nordquist, ed. in chief, Satya N. 

Nandan and Shabtai Rosenne, gen. eds., United 

Nations Convention on the Law of the Sea 1982: 

A Commentary (Herndon, Va.: Brill, 1993), vol. 3 

[hereafter Commentary, vol. 3], pp. 60–71.

5. “Oceans and Law of the Sea,” United Nations,

www.un.org/. 

6. Sir Robert Jennings and Sir Arthur Watts, eds., 

Oppenheim’s International Law (London: Longman, 1992), vol. 1, pp. 802–803, para. 342.

7. Commentary, vol. 3, pp. 63–65.

8. Ibid., pp. 67–68.

9. Ibid., p. 69.

10. UNCLOS, art. 2; Commentary, vol. 2, pp. 531–44.

11. Proclamation No. 5030, 48 Fed. Reg. 10605 (10 

March 1983), available at www.reagan.utexas 

.edu/. 

12. Wikipedia.org, s.v. “Exclusive Economic Zone: 

United States.” 

13. Of note, the LOSC makes a distinction between 

coastal-state jurisdiction over MSR in the territorial sea (article 245) and that in the EEZ/

continental shelf (article 246). Coastal-state 

jurisdiction over MSR is more expansive in the 

territorial sea, where the coastal state, in the 

exercise of its sovereignty, has the “exclusive right 

to regulate, authorize and conduct” MSR. 

14. “Laws of the People’s Republic of China: Law of 

the People’s Republic of China on the Exclusive 

Economic Zone and the Continental Shelf,” 

Asian Legal Information Institute, www.asianlii 

.org/; Collection of the Sea Laws and Regulations 

of the People’s Republic of China, 3rd ed. (Beijing: 

State Oceanic Administration, 2001).

15. “Laws of the People’s Republic of China: Provisions on the Administration of Foreign-Related 

Maritime Scientific Research,” Asian Legal Information Institute, www.asianlii.org/. 

16. “Surveying and Mapping Law of the People’s 

Republic of China,” Asian Legal Information 

Institute, www/asianlii.org/cn/legis/cen/laws/

samlotproc506/; Collection of the Sea Laws and 

Regulations of the People’s Republic of China.

17. Surveying and Mapping Law of the People’s 

Republic of China, art. 51.

18. In accord is UNCLOS, arts. 19(2)(j), 40, 54, 

87(1)(f), and Part XIII.

19. “Marine Scientific Research Authorizations,” U.S. 

Department of State, www.state.gov/. 

20. Ibid. 

21. J. Ashley Roach and Robert W. Smith, United 

States Responses to Excessive Maritime Claims,

2nd ed. (The Hague: Martinus Nijhoff, 1996), 

p. 425. In accord is A. Soons, Marine Scientific 

Research and the Law of the Sea (Deventer, Neth.: 

Kluwer, 1982), p. 124.

Notes
military activities in the eez 35

22. Roach and Smith, United States Responses to 

Excessive Maritime Claims, p. 426.

23. UN, Consolidated Glossary of Technical Terms 

Used in the United Nations Convention on the 

Law of the Sea (New York: UN Office for Ocean 

Affairs and the Law of the Sea, 1989), definition 

40, s.v. “The Law of the Sea: Baselines.” 

24. Roach and Smith, United States Responses to 

Excessive Maritime Claims, p. 427.

25. S.S. Lotus (Fr. v. Turk.), 1927 PCIJ (ser. A), No. 

10, at 18 (Sept. 7); Legality of the Threat or Use 

of Nuclear Weapons, Advisory Opinion, 1996 ICJ 

REP. 226, 238, para. 20 (July 8).

26. Identical language is found in article 39 of the 

convention.

27. Art. 2(4) provides: “All 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 Purposes of 

the United Nations.”

28. See Raul Pedrozo, “Close Encounters at Sea: The 

USNS Impeccable Incident,” Naval War College 

Review 62, no. 3 (Summer 2009), pp. 101–11, and 

Peter A. Dutton, “Caelum Liberam: Air Defense 

Identification Zones outside Sovereign Airspace,” 

American Journal of International Law 103 (2009). 

29. COLREGS: International Regulations for 

Preventing Collisions at Sea, 1972, 1050 UNTS 

16, 1143 UNTS 346, 28 UST, TIAS no. 8587. 

INCSEA: Agreement with the United States on the 

Prevention of Incidents on and over the High Seas,

25 May 1972, 23 UST 1168, TIAS no. 7379, 852 

UNTS 151, as amended by the Protocol of May 

22, 1973, 24 UST 1063, TIAS no. 7624, and by the 

1998 exchange of diplomatic notes. 

30. U.S. Defense Dept., “DoD News Transcript, 

Secretary Rumsfeld Briefs on EP-3 Collision, Apr. 

13, 2001—2:00 p.m. EDT,” Defenselink.mil. 

31. Ibid. 

32. John J. Tkacik, Jr., China’s New Challenge to the 

U.S.-Japan Alliance, WebMemo 533 (Washington, D.C.: Heritage Foundation, 13 July 2004), 

www.heritage.org/.

33. See Peter A. Dutton, “International Law and the 

November 2004 ‘Han Incident,’” Asian Security

2, no. 2 (2006), p. 96; Peter Dutton, Scouting, 

Signaling, and Gatekeeping: Chinese Naval Operations in Japanese Waters and the International 

Law Implications, China Maritime Studies 2 

(Newport, R.I.: Naval War College Press, 2009). 

34. James J. Przystup, Japan-China Relations: Not 

the Best of Times (Washington, D.C.: Institute 

for National Strategic Studies, National Defense 

Univ., n.d.), available at csis.org/. 

35. Bernard D. Cole, “Beijing’s Strategy of Sea 

Denial,” China Brief (Jamestown Foundation) 6, 

no. 23 (9 May 2007), www.jamestown.org/; Sean 

Alfano, “Chinese Sub Came Close to U.S. Ships,” 

CBSNews.com, 14 November 2006.

36. “Hot Spot: East China Sea,” Sinodefence.com.

37. Tkacik, China’s New Challenge to the U.S.-Japan 

Alliance; Przystup, Japan-China Relations.

38. Przystup, Japan-China Relations.

39. Tkacik, China’s New Challenge to the U.S.-Japan 

Alliance.

40. Przystup, Japan-China Relations.

41. Ibid.; “Hot Spot: East China Sea.”

42. Przystup, Japan-China Relations.

43. “Hot Spot: East China Sea”; Dutton, “International Law and the November 2004 ‘Han 

Incident,’” p. 96. 

44. “China Sub Stalked U.S. Fleet,” Washington 

Times, 13 November 2006; Dutton, “International Law and the November 2004 ‘Han Incident,’” 

p. 96. 

45. “China Sub Stalked U.S. Fleet”; Cole, “Beijing’s 

Strategy of Sea Denial”; Alfano, “Chinese Sub 

Came Close to U.S. Ships.”

46. “Chinese Nuke Sub Spotted by Japanese 

Tracking USS George Washington near Korea,” 

WorldTribune.com, 11 November 2008. 

47. Barbara Starr, “Sub Collides with Sonar Array 

Towed by U.S. Navy Ship,” CNN.com, 12 June 

2009; David Carter and Erik Slavin, “USS McCain arrives at Sasebo after Suffering Damage to 

Sonar Array,” Stars and Stripes, 17 June 2009. 

48. Ji Guoxing, “The Legality of the ‘Impeccable Incident,’” China Security (World Security Institute) 

5, no. 2 (Spring 2009), p. 18, www.chinasecurity 

.us/. 

49. The sixteen nations that with China purport to 

restrict military activities in the EEZ are Bangladesh, Brazil, Burma, Cape Verde, India, Indonesia, Iran, Kenya, Malaysia, Maldives, Mauritius, 

North Korea, Pakistan, the Philippines, Portugal, 

and Uruguay. The seven nations claiming territorial seas in excess of twelve nautical miles are 

Benin, Republic of the Congo, Ecuador, Liberia, 

Peru, Somalia, and Togo. All of these nations—

except Togo, which claims a thirty-nautical-mile 

territorial sea—claim a two-hundred-nauticalmile territorial sea. U.S. Defense Dept., Maritime 

Claims Reference Manual, DOD 2005.1-M, www 

.dtic.mil/. 

50. For SMSs, “United States Navy Fact File: Oceanographic Survey Ships—T-AGS,” Navy.mil. 
36 china maritime studies

51. UN, Official Records of the Third U.N. Conference 

on the Law of the Sea, vol. 17, Plenary Meetings,

Doc.A/CONF.62/WS/37 and ADD.1 and 2 (New 

York: n.d.), p. 243 [emphasis added].
Yu Zhirong

Jurisprudential Analysis of the U.S. Navy’s Military Surveys 

in the Exclusive Economic Zones of Coastal Countries

CHAPTER THREE

Since the beginning of the twenty-first century, the U.S. Navy has constantly sent 

ships of all kinds to the national sea waters of many coastal countries to perform 

military surveys.1

 This has provoked strong repercussions and deep concerns among the 

countries in whose waters the surveys are performed and has drawn close scrutiny from 

the international community as well. With the passage of time, the U.S. Navy has carried 

out more and more frequent military surveys in coastal countries’ exclusive economic 

zones that involve wider regions and longer periods. The coastal countries have sent 

ships or airplanes to warn the U.S. naval ships verbally against approaching or sent 

diplomatic notes to ask for reasonable explanations, but the efforts have had little effect, 

and the U.S. Navy has continued to carry out what it calls military survey activities.2

Therefore, it is common to see confrontations or even friction between the U.S. side and 

the coastal countries concerned, which later gives rise to hype in the press and to public 

outcry. This has greatly affected normal bilateral ties between the nations.

For instance, regarding the USNS Impeccable incident that occurred in the South China 

Sea in part of China’s exclusive economic zone, China and the United States have quite 

different understandings concerning the incident to date. Top U.S. military officers, 

including Admiral Michael Mullen, chairman of the Joint Chiefs of Staff, defended the 

Impeccable’s activities.3

 Mullen said that exclusive economic zones extend to two hundred nautical miles and every state has the right to enter them. He added that Impeccable

was carrying out activities in “international waters,” which in his view was quite in line 

with international law.4

Huang Xueping, the spokesman from China’s Ministry of National Defense, refuted 

Mullen’s argument. He said the U.S. surveillance ships conducted illegal surveys in China’s exclusive economic zone without obtaining prior permission from the Chinese side, 

which went against relevant regulations provided in the United Nations Convention on 

the Law of the Sea (UNCLOS), the Law on the Exclusive Economic Zone and the Continental Shelf of the People’s Republic of China, and the Provisions of the People’s Republic of China on the Administration of Foreign-Related Maritime Scientific Research.5
38 china maritime studies

This shows that the Chinese side differs from the U.S. side concerning its perspectives on 

the correct law governing the incident.

More than arousing significant attention from the military circles of both sides, the 

Impeccable incident caused a stir between top Chinese and U.S. leaders. Foreign ministers from both countries held special talks on the issue. U.S. Secretary of State Hillary 

Clinton said that U.S.-Chinese military relations are expected to strengthen to ensure 

that no unpredictable consequences result from such incidents.6

 Regarding the Impeccable incident, President Obama stressed in his talks with Foreign Minister Yang Jiechi 

on 12 March 2009 that the U.S.-Chinese military dialogues need to be improved either 

in level or in frequency to prevent such incidents from recurring.7

 It can be seen that top 

government officials from both sides have very positive attitudes and expect no more 

such unhappy incidents. But goodwill does not necessarily lead to good results. 

The USNS Victorious incident, which was similar in nature to the Impeccable incident, 

occurred in the Yellow Sea in May 2009.8

 Why did the common understanding reached 

between the two sides go up in smoke? High-level officials hoped this kind of incident 

would not happen again, but it happened again within two months. And why did such 

an incident recur and will perhaps continue to occur? The major reason lies in the fact 

that neither the U.S. side, nor the Chinese side, nor the international community has 

conducted an in-depth jurisprudential analysis according to international law of the sea 

of the U.S. Navy’s so-called military surveys in the exclusive economic zones of coastal 

countries. Additionally, no fair, impartial understanding or opinion has been expressed 

based on correct, objective, and scientific definitions of the activity. Though both Chinese and U.S. top officials show positive attitudes toward the development of solutions 

and some level of agreement has been reached, jurisprudential assessments of the nature 

of such incidents remain at a very basic level of understanding. Discussions on the topic 

will definitely result in a variety of views. Therefore, it is time to launch a round of extensive and in-depth discussion in the academic world on foreign ships’ military surveys 

in coastal countries’ exclusive economic zones.

Since the U.S. Naval Ship Bowditch carried out its survey in China’s Yellow Sea in 2001, 

activities that were considered by the Chinese side to be unlawful U.S. naval incursions 

into China’s exclusive economic zone, the author has conducted studies on the so-called 

military surveys carried out by maritime powers. The author has reviewed press releases, 

government statements, actual marine military surveys of the countries concerned, and 

related information. The author has conducted an in-depth analysis of these materials 

and then developed unique ideas based on international law of the sea, particularly the 

coastal countries’ two “sovereign rights” and three “exclusive jurisdictions” described 

in UNCLOS.9

 Additionally, the author has two favorable experiences useful for studies 

and discussions of the said issue. First, the author has frequently participated in cruises 
military activities in the eez 39

undertaken by China’s surveillance organizations to observe military surveys conducted by U.S. naval ships in China’s sea areas and obtained a large number of firsthand 

materials. This has helped increase the author’s perceptual understanding, thus greatly 

reducing the role of imagination or guesswork in analysis and making the author’s 

conclusions more objective, correct, and in line with the facts. Second, on 26 April 2001, 

the writer led a team to go on board R/V Roger Revelle, a U.S.-operated ship that carried 

out marine scientific research in China’s sea areas with prior permission from the Chinese side.10 This has helped improve the writer’s knowledge and understanding toward 

marine scientific research and of the relationship between marine scientific research and 

military surveys.

At present, the Chinese side and U.S. side still hold different opinions on military survey 

activities carried out by foreign ships in sea areas under the jurisdiction of coastal 

countries. The differences mainly involve three aspects: different understandings of the 

law governing the areas under the jurisdiction of coastal countries; different perspectives 

on the nature of military surveys; and different ideas about ways of addressing military 

surveys.

Jurisprudential Analysis of the U.S. Navy’s Claim to Be Operating in 

“International Waters” 

Every time a Chinese marine surveillance ship or airplane has found a U.S. naval ship 

operating in China’s sea areas and asked for an explanation of its activities, the U.S. ship 

always replies that it is a U.S. naval ship that enjoys the right of immunity and that it is 

carrying out military surveys in “international waters.” Admiral Mullen also claimed, as 

noted above, in the wake of the Impeccable incident in the South China Sea, that exclusive economic zones extend out to two hundred nautical miles and every country has the 

right to enter them. He further claimed that Impeccable was operating in international 

waters and therefore did not break any international laws. So it can be concluded that 

the U.S. naval operations in coastal countries’ exclusive economic zones are carefully 

planned, or at least involve great efforts to study such international law of the sea as 

UNCLOS. The U.S. Navy called the coastal countries’ exclusive economic zones, in which 

their ships were carrying out military surveys, “international waters” but did not publicly 

explain what the term “international waters” means. This suggests that the U.S. Navy’s 

intent is clearly to evade the concept of the exclusive economic zone as explicitly stipulated in UNCLOS and thus to deny the coastal countries’ rights under the convention.

It is widely known that the law of the sea as reflected in UNCLOS was shaped following fifteen sessions of eleven general meetings that spanned a whole decade and 

that UNCLOS was the result of discussion and compromise among over 150 states, 

including the United States.11 Its provisions have been recognized and accepted by 
40 china maritime studies

an overwhelming majority of the countries across the world and have been taken as 

the common code of a new maritime order.12 The system of exclusive economic zones 

is particularly well known and accepted worldwide. Though the United States has not 

acceded to UNCLOS, it has the responsibility and obligation to observe all of its provisions. International law of the sea certainly requires the development of practices by 

all states that will help enrich and improve the law itself, and the law requires further 

development as well, but no practices are lawful if they go against or even conflict with 

the fundamental rules of UNCLOS. The convention classifies the whole ocean into 

numerous regions: internal waters (article 8), territorial seas (articles 2, 3), contiguous 

zones (article 33), exclusive economic zones (article 55), continental shelves (article 

76), the high seas (article 86), and international seabed areas (article 1[1]). No “international waters” can be found in UNCLOS, and the only term that is even a little close 

to the phrase “international waters” is “strait used for international navigation” (article 

37). The latter, however, definitely has no relationship with the former concerning the 

locations in which the U.S. military surveys are conducted. Since 2001, the U.S. naval 

ships’ military survey operations discovered by Chinese marine surveillance airplanes or 

ships have all been carried out in waters within the Chinese exclusive economic zone; the 

closest location was only twenty-four nautical miles from China’s territorial-sea baseline. 

Therefore, the U.S. argument that the coastal countries’ exclusive economic zones are 

“international waters” is only a lame excuse for its attempt to evade the coastal countries’ 

rights of jurisdictional competency.

The U.S. perspective is in apparent conflict with the provisions under UNCLOS and 

is unconvincing from a jurisprudential perspective. The United States, as a maritime 

power, has the obligation to help improve the legal system of the exclusive economic 

zone through its practice. But it brazenly replaced the “exclusive economic zone” with 

“international waters,” ignoring or denying the rights of jurisdictional competency of 

the coastal states and even depriving them of the rights they deserve, which is not advisable at all. As a matter of fact, it is ironic that the United States denies the existence of exclusive economic zones, for the existence of the exclusive economic zone and continental 

shelf systems have their roots in the U.S. practices, specifically the two “declarations on 

marine policies” released by President Truman on 28 September 1945 to protect fishery 

resources and the oil resources under the continental seabed.13 These U.S. maritime 

policies were not only significant advancements in American domestic legislation but 

pushed forward the development of international law of the sea as well.

In fact, the U.S. Navy’s position is very clear that the authority of UNCLOS will not be 

shaken even if exclusive economic zones are defined as “international waters,” which is 

only an excuse for avoiding the coastal states’ inspection of its illegal actions. Admiral 

Mullen’s explanation was self-contradictory and weak. He claimed first that Impeccable
military activities in the eez 41

was in international waters and acting in accordance with international laws. He then 

stated that any country has the right to enter the exclusive economic zone of another 

country, an area that extends two hundred nautical miles from the coastline. He stressed 

the legality of military surveys. My views are very definite: international waters do not 

exist in UNCLOS and are not generally accepted. The American policy of conducting 

unauthorized military surveys in sea areas under the jurisdiction of another coastal state 

should be scrutinized for its illegality. So how can Admiral Mullen say these operations 

are completely in accordance with international law? Moreover, the statements that 

the exclusive economic zone is two hundred nautical miles wide and that any country 

has the right to access are, taken separately, true. The exclusive economic zone is free 

for navigation, overflight, and laying seabed cables.14 However, the activities of the 

U.S. Navy’s military survey ship do not belong to the categories mentioned above. An 

investigation of the activities of Impeccable as it undertook military surveys in China’s 

exclusive economic zone determined that the U.S. ship displayed at the mainmast the 

ball-diamond-ball operations signal during the day and shined the red-white-red operations signal light at night indicating that it was restricted in maneuvering, undertaking 

operations instead of merely navigating.15 So Admiral Mullen’s explanation is selfcontradictory, lacks a serious legal basis, and is not persuasive. His excuses make no contribution to proving the lawfulness of the U.S. military ship’s military survey operations 

in waters under the jurisdiction of coastal states but completely expose the illegality of 

the vessel’s conduct. 

Jurisprudential Analysis of the Nature of Military Surveys

One of China’s concerns about military surveys is that they cause pollution to the ocean 

environment. In at least one such case, the Chinese Ministry of Foreign Affairs raised 

this concern to the American government. Specifically, on 20 September 2006, the 

Ministry of Foreign Affairs of the People’s Republic of China issued a note to the U.S. 

embassy in China that on 8 August of the same year, China’s sea surveillance aircraft and 

ships observed four American navy ships undertaking military surveys in waters under 

Chinese jurisdiction in the East China Sea without authorization from the Chinese 

government, seriously infringing upon the ocean rights and interests of China as the 

relevant coastal country, and requested reasonable explanations from the American 

ambassador. The ambassador promised to give feedback after getting information. As 

had been done after the USNS Impeccable incident occurred on 5 March 2009 in an area 

under Chinese jurisdiction in the South China Sea, China’s Foreign Ministry spokesperson Ma Zhaoxu said that the U.S. Navy ship’s unauthorized access into waters in the 

East China Sea under the jurisdiction of China for the purpose of undertaking military 

surveys violated UNCLOS and China’s laws.16
42 china maritime studies

In his remarks, Ma pointed out that there is a jurisprudential basis available to conclude that the U.S. military ship’s unauthorized operations to perform military surveys 

in waters under the jurisdiction of China is illegal. According to UNCLOS, “‘pollution 

of the marine environment’ means the introduction by man, directly or indirectly, of 

substances or energy into the marine environment, including estuaries, which results or 

is likely to result in such deleterious effects as harm to living resources and marine life, 

hazards to human health, hindrance to marine activities, including fishing and other 

legitimate uses of the sea, impairment of quality for use of sea water and reduction of 

amenities.”17 USNS Impeccable is a catamaran with an operating speed of four to six 

knots, hanging or burning operational and signal lights in the mainmast when operating, with a shielded cable at the aft end of the vessel, and a survey sensor tied at the cable 

tip.18 The ship does not issue navigation notices concerning its random operation areas, 

sometimes navigating on the sea routes and sometimes among fisheries. This is sufficient to conclude that military survey operations by the U.S. Navy’s sea surveillance ship 

constitute pollution of the marine environment.

Additionally, the definition of pollution of the marine environment in UNCLOS 

favors the coastal states in its general description. “The introduction by man, directly 

or indirectly, of substances or energy into the marine environment” quite matches the 

operations mode of USNS Impeccable, which introduces a shielded cable into the sea 

and emits sound waves in order to investigate underwater targets, conduct surveys, 

undertake instrument experiments, or investigate the ocean’s environment.19 If the 

United States argues that military surveys do not cause such deleterious effects as harm 

to living resources and marine life, hazards to human health, impairment of quality for 

use of seawater, and reduction of amenities, the United States must undertake the onus

probandi and provide a persuasive explanation to the satisfaction of the coastal state. 

Once the U.S. Navy ship’s military survey is defined as pollution of the marine environment, unless the surveys can otherwise be exempted from the definition of pollution of 

the marine environment, the coastal states may make claims against the United States 

for pollution of the marine environment, in addition to diplomatic negotiations in accordance with relevant regulations in UNCLOS. This is my understanding of the point 

made by China’s Foreign Ministry Spokesman Ma that the military surveys conducted 

by the U.S. Navy’s surveillance ship violated relevant UNCLOS provisions. 

The media reported that the USNS Impeccable used water hoses to warn off the Chinese 

fishing boats during the March incident;20 in May USNS Victorious did the same, using 

the excuse that the close maneuvering of the Chinese vessels hindered the Victorious’s 

operations.21 The United States said that the Chinese operations reflect “an intentional 

and dangerous strategy” and that the “Chinese actions are not professional.”22 However, 

the jurisprudential analysis above clearly indicates that the U.S. Navy’s ships entered 
military activities in the eez 43

into Chinese waters to perform a military survey without approval or authorization, 

seized the sea route, occupied the fishery and seriously hindered the fishermen’s normal 

fishing operation, and caused pollution to the marine environment, all of which are 

self-evidently illegal activities. When their fishery was occupied and their legal interests 

and rights were seriously infringed, it was unavoidable that the fishermen responded as 

necessary. However, the U.S. Navy’s ships caused the incidents and should accept fundamental responsibility for them. The United States should realize that it has breached 

the provisions of UNCLOS and should take timely corrective actions by following the 

provisions of UNCLOS and stopping any illegal activities. The United States should not 

blame the Chinese fishing boats. Instead, it should apologize to Chinese fishermen and 

guarantee that no similar mistakes will occur in the future. It should also compensate 

the loss incurred by the Chinese fishermen, if necessary. 

In addition to concerns about environmental pollution caused by military surveys, a second concern relates to the definition of “marine science.” At present, UNCLOS and the 

laws and regulations of coastal countries fail to define clearly what constitutes marine 

scientific research and fail to define clearly what military survey activities are permissible. The U.S. Navy does not attempt to define marine scientific research in a way that 

favors its country. Instead, it differentiates its activities from marine scientific research by 

labeling them military survey activities and thereby attempts to evade the jurisdiction of 

coastal countries.

Over many years devoted to the practice of marine management, the author has conducted substantial research and study of international maritime law. Thus, the author 

has profound knowledge of the term “marine scientific research” and defines it as 

follows: 

• Marine scientific research involves the use of various vessels to investigate the marine 

environment or to survey the marine environment, in specific waters and at a specific 

time, by means of modern scientific and technical approaches, including academic 

study and the study of integrated applications of the information collected.

• The “military survey activities” that U.S. Navy vessels conduct in waters under the 

jurisdiction of coastal countries bear no essential differences from marine scientific 

research in working form or content. Thus, the so-called military survey activities are 

completely subsumed under the category of study called marine scientific research. 

It is therefore an illegal activity to conduct military survey activities in the exclusive 

economic zone of a coastal country without its approval. This conclusion may seem arbitrary, but actually it is much to the point, fully reflecting the objective facts. If military 

survey activities do have any obvious differences from marine scientific research, the 

differences mainly lie, seemingly, in the different attributes of the vehicles and vessels 
44 china maritime studies

used. So-called military survey activities generally use military vessels. Of course, it is 

not essential to identify whether the activities undertaken fall within the category of 

marine scientific research, the definition of which bears no relation to the attributes 

of the vessels performing it. At present, not a single law or regulation clearly specifies 

that marine environmental investigations and survey operations using military vessels 

are military survey activities or that the military survey activities do not fall under the 

category of marine scientific research and thus are not subject to the coastal-state laws 

and regulations. 

By contrast, the author, in his experience in marine management, has observed typical 

cases in which U.S. naval vessels conducted marine scientific research, offering powerful 

support to the idea that military survey activities do indeed fall within the study category 

of marine scientific research and thus are subject to the provisions of UNCLOS and the 

laws and regulations of the coastal states. On 26 April 2001, the author was ordered to 

board and inspect R/V Roger Revelle, a U.S. maritime research vessel, which performed 

acoustic tomography tests in the shallow waters of the East China Sea in collaboration 

with the Chinese Academy of Sciences and operated from Shanghai. Although the vessel was marked “Scripps Institution of Oceanography, University of California,” it was 

owned by the U.S. Navy, and its use had to be approved by the U.S. Navy.23

R/V Roger Revelle is therefore typical of U.S. Navy research vessels, and the studies it 

conducted were also typical of military survey activities. The vessel’s activities were 

approved before it arrived and operated in waters under the jurisdiction of China. All 

its activities during this research period were subject to the provisions of UNCLOS and 

China’s laws and regulations on marine scientific research and to Chinese management. 

This proves again that even though R/V Roger Revelle is a military vessel, the marine 

environmental investigations or marine environmental surveys it made were military 

survey activities and that the argument holding they do not belong to the category of 

marine scientific research is wrong. It is improper to categorize and name marine environmental investigations or marine environmental surveys conducted by military vessels 

as military survey activities. The argument that purposely excludes such activities from 

the study category of marine scientific research in order to evade the legal constraints 

imposed by coastal states is also inappropriate. Any country has the right to advance 

explanations of the law that favor its own interests, but it cannot break the principles 

and tenets of UNCLOS and act inconsistently with them.

Clarification of Several Vague Topics

One vague topic that needs clarification is the “peaceful purposes” principle. In the 

above section the author presented his view that military survey activities are in fact 

within the category of marine scientific research, based on his experience in the practice 
military activities in the eez 45

of marine management, and enumerated typical examples. A question remains, however. 

Although UNCLOS fails to define the study of marine scientific research, it establishes 

general principles. For instance, it establishes that the study of marine scientific research 

shall be undertaken for peaceful purposes.24 That is to say, if a military survey activity is not undertaken for a peaceful purpose, it does not meet the criteria for the study 

of marine scientific research and thus can be completely prohibited. However, to date, 

not a single U.S. official or military authority has ever stated in public that its military 

survey activities made in the exclusive economic zone of the coastal countries are made 

for nonpeaceful purposes. This offers powerful support for the idea that military survey 

activities are within the category of marine scientific research. Of course, it cannot be 

excluded that the military survey activities could be deliberately explained as having the 

purpose of preparing for future war and are not for a peaceful purpose, thus making 

them at odds with UNCLOS. In this case, the nature of the issue would change completely. It would no longer be an issue of the law; it would turn into an issue of national 

defense, and coastal countries could seek solutions from a political perspective. With a 

powerful enemy in front of it, a country will make war preparations and will use force to 

crack down on military survey activities made by foreign vessels that raise a threat to its 

national security.

In addition, some people may ask a sharp and astonishing question concerning the 

concept of sovereign immunity. So far, the vessels that have entered the waters under the 

jurisdiction of coastal countries and conducted military survey activities have all been 

military vessels in the service of the U.S. Navy with sovereign immunity. Then, why are 

their activities considered illegal? If these people who put forward the question are not 

deliberately trying to confound right and wrong or call white as black, they must have a 

problem understanding international law of the sea. The sovereign immunity of military 

vessels means that even though a military vessel with immunity has undertaken illegal 

conduct, the concerned coastal country has no right to board and inspect it and the 

coastal state can only negotiate a diplomatic resolution. But a proper understanding of 

the facts based on a “responsibility investigation,” conducted according to legal procedures, reveals that immunity and the findings of an investigation into illegal conduct 

and responsibility are two different concepts and cannot be conflated. When the vessels 

and planes of China’s Marine Surveillance Force communicate with the U.S. vessels at 

sea, the U.S. vessels always first say, “This is U.S. naval vessel XXX with sovereign immunity.” In fact, their announcement of immunity makes no sense except to show their 

guilty conscience.

A third area that needs clarification concerns the rights and obligations under UNCLOS 

of nonsignatory states. There are also some people who may paradoxically propose that 

since the United States has not acceded to UNCLOS, it is not subject to the provisions of 
46 china maritime studies

UNCLOS. This perspective suggests that even though a U.S. naval vessel intrudes in the 

exclusive economic zone of a coastal country and undertakes military survey activities, 

which is at odds with the provisions of UNCLOS and violates the laws of the coastal 

country, it can be free from investigation into its legal responsibility just because the 

United States is not a state party. This is a perspective based in ignorance. As a treaty, 

UNCLOS, which now has more than 150 states parties, was concluded after long-term 

preparations, discussions, and compromises that included U.S. participation. Its provisions have become universally accepted law for the purpose of safeguarding the new 

maritime order. In consequence, both the signatory states and nonsignatory states must 

follow and abide by its provisions. Of course, all countries have the responsibility and 

obligation to enrich and improve the meaning of UNCLOS through state practice, but 

they cannot violate the convention’s elementary principles and tenets. They can offer explanations in favor of their own interests, but they cannot argue irrationally or resort to 

force to justify illegal conduct. Fortunately, U.S. high officials have stated that the United 

States will respect and abide by the regulations of UNCLOS, although it is still not a state 

party. As a result, the above worry is unnecessary.

Conclusion

In summary, when U.S. naval vessels enter the exclusive economic zone of coastal 

countries and undertake military survey activities, their actions should be considered 

within the category of marine scientific research and must therefore be subject to the 

relevant regulations of UNCLOS and the laws and regulations of the coastal country. 

Military survey activities undertaken without approval are illegal conduct and shall 

be investigated for legal responsibility. It violates the regulations of UNCLOS that 

the oceanic surveillance vessels of the U.S. Navy enter waters under the jurisdiction 

of coastal countries and boldly conduct survey activities, which also result in marine 

environmental pollution. Once the illegal fact is confirmed, the United States should 

take legal responsibility and pay compensation for its pollution of the marine environment. If the state undertaking the survey activities does not accept the existence of 

pollution as an effect of its operations, it must provide convincing proof. Although 

the United States is not a state party of UNCLOS, it must abide by the common rules 

recognized by most countries in the world. Every country can advance explanations of 

the provisions of UNCLOS that favor its own interests, but the explanations and innovation must not violate the convention’s principles and tenets or be at odds with it. The 

U.S. forces insist that their military survey activities are undertaken in “international 

waters.” They take this perspective with the goal of evading the jurisdiction of coastal 

countries. In fact, the U.S. forces are penny-wise and pound-foolish. Their speech and 

conduct have violated China’s maritime rights and interests. Moreover, they ignore 
military activities in the eez 47

and deny in public the exclusive-economic-zone system, which is universally recognized by countries around the world. They have violated the regulations of UNCLOS 

and go against the international community. This significantly affects the U.S. image as 

a civilized maritime power and also spoils the outstanding contributions that President 

Truman made for the establishment of the exclusive-economic-zone system sixty-five 

years ago.

If the United States desires to conduct marine scientific research in the exclusive 

economic zone of a coastal country, the best way is to first apply to the coastal country 

concerned and then to conduct the study after approval is given, just as in the case of 

the R/V Roger Revelle. In addition, another easy and feasible way forward is to conduct 

the study jointly with the coastal country, which avoids unwanted cases of maritime 

confrontation and conflict between the two parties and fully eases the differences and 

contradictions concerning the correct understanding of international maritime law.

Additional references are UN Convention on the 

Law of the Sea (New York: Ocean, 1996); Sun 

Shuxian, ed. in chief, Collection of Legal Theoretical Bases for Marine Administrative Implementation, State Volume (New York: Ocean, 2007); and 

Lu Shouben, General Theory on Marine Management (New York: Ocean, 1997).

1. U.S. Navy Dept., “Special Mission,” U.S. Navy’s 

Military Sealift Command, 2008, p. 4, www.msc 

.navy.mil/.

2. See, e.g., Mark Oliva, “Before EP-3, China Turned 

Away U.S. Research Ship in International Waters,” 

Stars and Stripes, 20 May 2001.

3. See, e.g., the comments of then–Commander, 

Pacific Command, Adm. Timothy Keating, in 

Donna Miles, “More Work Needed in Military Relationship with China, Admiral Says,” 

American Forces Press Service, 19 March 2009, 

available at www.defenselink.mil/.

4. The Pentagon released a statement on 9 March 

2009 that five Chinese vessels “shadowed and 

aggressively maneuvered in dangerously close 

proximity to USNS Impeccable, in an apparent coordinated effort to harass the U.S. ocean 

surveillance ship while it was conducting routine 

operations in international waters.” “Pentagon 

Says Chinese Vessels Harassed U.S. Ship,” 9 

March 2009, CNN.com.

5. United Nations [hereafter UN], United Nations 

Convention on the Law of the Sea of 10 December 

1982, effective 16 November 1994 [hereafter 

UNCLOS], arts. 56, 58, and 87; Collection of the 

Sea Laws and Regulations of the People’s Republic 

of China, 3rd ed. (Beijing: State Oceanic Administration, 2001), pp. 210–15, and for Administration of Foreign-Related Maritime Scientific 

Research, pp. 328–33.

6. U.S. State Dept., “Remarks of Hillary Rodham 

Clinton after Her Meeting with Chinese Foreign 

Minister Yang Jiechi,” 11 March 2009, www.state 

.gov/.

7. “The President Meets with Chinese Foreign Minister Yang Jiechi,” White House Blog, 12 March 

2009, www.whitehouse.gov/.

8. David Morgan, “U.S. Says Chinese Fishing Vessels 

Confront Navy Ship,” Reuters, 5 May 2009, www 

.reuters.com/.

9. UNCLOS, art. 56. 

10. See, e.g., Steven Ramp, “Asian Seas International 

Acoustics Experiment (ASIAEX),” Naval Postgraduate School Research 10, no. 2 (June 2000), 

pp. 14–16.

11. On the history of the development of UNCLOS, 

see R. R. Churchill and A. V. Lowe, The Law of the 

Sea, 3rd ed. (Manchester, U.K.: Manchester Univ. 

Press, 1999), pp. 13–22.

12. As of 1 October 2009, 159 countries have ratified 

or acceded to UNCLOS. United Nations, www 

.un.org/.

13. The Truman Proclamation on the Continental 

Shelf (No. 2667, 28 September 1945) and The 

Truman Proclamation on Fisheries (No. 2668, 28 

September 1945), available in Lawrence Juda, 

Ocean Space Rights: Developing U.S. Policy (New 

York: Praeger, 1975), apps. A and B, respectively.

Notes
48 china maritime studies

14. See UNCLOS, art. 58.

15. See International Regulations for Preventing Collisions at Sea (COLREGS), rule 27(b)(i) and (ii), 

in Craig H. Allen, Farwell’s Rules of the Nautical 

Road, 8th ed. (Annapolis, Md.: Naval Institute 

Press, 2005), pp. 559–60.

16. Xiong Zhengyan and Hou Lijun, “Foreign 

Ministry Spokesman: US Navy Surveillance Ship 

‘Impeccable’ Violated International Law; China 

Made Solemn Representations,” Xinhua, 10 

March 2009.

17. UNCLOS, art. 1(4).

18. For specifications of USNS Impeccable, see www 

.msc.navy.mil/. For its operations, see Barry 

Hirayama, “USNS Impeccable Deploys Passive 

Sonar While Underway,” Navy News Service, 7 

March 2006, available at www.navy.mil/.

19. See, e.g., the U.S. Navy website’s description of 

the Military Sealift Command’s Special Mission Program at www.msc.navy.mil/PM2/. The 

description states, “Five ocean surveillance ships 

[including USNS Impeccable] directly support 

the Navy by using both passive and active low 

frequency sonar arrays to detect and track undersea threats.”

20. “Pentagon Says Chinese Vessels Harassed U.S. 

Ship.”

21. “U.S. Ship in Yellow Sea Standoff with Chinese 

Vessels,” South China Morning Post, 6 May 2009. 

22. “Chinese Vessels Harassed Unarmed USNS 

Impeccable,” Los Angeles Times, 9 March 2009.

23. See, e.g., the description of the vessel’s ownership 

at the website of the California Cooperative 

Oceanic Fisheries Investigation, a partnership of 

the California Department of Fish and Game, the 

National Oceanic and Atmospheric Administration, and the Scripps Institute of Oceanography. 

It describes R/V Roger Revelle as “a 274-foot (83 

meter) AGOR 24–class research ship operated 

by the Scripps Institution of Oceanography, a 

graduate division of the University of California, 

San Diego, . . . [with] title held by U.S. Navy 

[and] operated [by] agreement with Office of 

Naval Research.” California Cooperative Oceanic 

Fisheries Investigation, www.calcofi.org/.

24. UNCLOS, art. 240(a).
Lt. Col. Andrew S. Williams, U.S. Air Force

Aerial Reconnaissance by Military Aircraft in the 

Exclusive Economic Zone 

CHAPTER FOUR

The United Nations Convention on the Law of the Sea (UNCLOS) created a new 

zone—the exclusive economic zone (EEZ)—with its own legal regime.1

 Although 

prior to the completion of the convention in 1982 some states had already claimed twohundred-nautical-mile exclusive fishery zones, the EEZ as such had not previously been 

recognized in international law. As the history of the development of the EEZ demonstrates, the zone’s legal regime seeks to balance the rights and interests of the coastal state 

with the rights and interests of all other states in the EEZ. The coastal state’s rights and 

duties relate to preservation and exploitation of the natural resources in the EEZ (arts. 

56, 60–73). The rights of all other states in the EEZ relate to the traditional uses of the 

high seas (art. 58). 

The freedom of overflight is one of the important traditional uses of the high seas mentioned in UNCLOS. UNCLOS preserves this right of overflight in the EEZ for all aircraft, 

including military aircraft. Article 58(1) of UNCLOS states:

In the exclusive economic zone, all States, whether coastal or landlocked, enjoy, subject 

to the relevant provisions of this Convention, the freedoms referred to in article 87 of 

navigation and overflight . . . and other internationally lawful uses of the sea related to 

these freedoms, such as those associated with the operation of ships and aircraft . . . , and 

compatible with the other provisions of this Convention. 

The cross-reference to article 87 makes clear that the freedom of overflight in the EEZ 

is the same as it is over the high seas. The phrase “and other internationally lawful uses 

of the sea related to these freedoms” means that there are other, unspecified freedoms in 

addition to the ones listed in article 58(1). This latter phrase makes clear that the right 

of overflight is not limited to mere transit over the EEZ but that aircraft may perform 

operations previously permitted under international law. 

Under UNCLOS, all aircraft also enjoy the right of transit passage over international 

straits and archipelagic sea-lanes.2

 Such passage is available for travel “between one 

part of the high seas or an exclusive economic zone and another part of the high seas 

or an exclusive economic zone” (arts. 38[2], 53[3]).3

 UNCLOS specifically requires 

military aircraft to comply with certain safety measures during transit passage, thereby 
50 china maritime studies

confirming that military aircraft enjoy the right of transit passage in addition to the 

right of overflight in the EEZ (arts. 39[3], 54). 

Moreover, UNCLOS specifically authorizes certain military activities in the EEZ. Article 

58(2) makes a general cross-reference to articles 88–115, stating that those high seas provisions and “other pertinent rules of international law apply to the exclusive economic 

zone in so far as they are not incompatible with this Part.” Some cross-referenced provisions describe the rights, duties, and immunities of warships and military aircraft. For 

example, military aircraft may exercise the right of visit and the right of hot pursuit over 

the high seas (arts. 110–11). The cross-reference to these provisions in article 58(2) indicates that military aircraft may exercise these same rights in the EEZ. Hence, UNCLOS 

sanctions at least some types of foreign military activity in the EEZ. Article 56(2) would 

encompass foreign military activity when it requires the coastal state to have due regard 

for the rights and duties of other states in its EEZ. 

UNCLOS thus expressly authorizes the presence of military aircraft in the EEZ and it 

expressly allows certain military operations in the EEZ, just as it does in the airspace 

over the high seas. The remaining issue is whether aerial reconnaissance of coastal-state 

activities by foreign military aircraft remains a permitted use of the airspace above the 

EEZ under international law.

Due Regard for Coastal-State Interests

Although UNCLOS preserves in the EEZ the freedom of overflight and other internationally lawful uses of the seas related to the operation of aircraft, there are at least two 

limitations on this freedom. The first is found in article 58(3), which requires states to 

show due regard for the rights and interests of the coastal state. Article 58(3) states:

In exercising their rights and performing their duties under this Convention in the exclusive economic zone, States shall have due regard to the rights and duties of the coastal State 

and shall comply with the laws and regulations adopted by the coastal State in accordance 

with the provisions of this Convention and other rules of international law in so far as they 

are not incompatible with this Part. 

This provision means, at a minimum, that foreign military activity in the EEZ may not 

unduly interfere with the rights and interests of the coastal state in the marine environment and its natural resources. Examples of military activities that would run afoul of 

this provision include weapons exercises that cause significant damage to a valuable 

resource being exploited by the coastal state, that deny access to traditional fishing 

grounds, or that create hazards to commercial fishing.4

The second limitation is stated in article 56(1)(b)(ii), which confers jurisdiction on the 

coastal state to regulate marine scientific research in the EEZ.5

 Even with this limitation, 
military activities in the eez 51

intelligence-gathering activities of a military nature are not prohibited, since they would 

not affect the marine environment or resources. Hydrographic surveys, for example, are 

not subject to coastal-state regulation.6

 These two limitations on the high-seas freedom 

of overflight provide the essential differences between the legal regimes of the EEZ and 

the high seas. In all other senses, the EEZ remains a portion of the high seas for purposes 

of the freedoms of overflight.

Nonetheless, some argue that the “due regard” clause of article 58(3) also means that 

states must have due regard for the security interests of the coastal state and that, for 

this reason, no aerial reconnaissance of the coastal state may be conducted in the EEZ.7

UNCLOS addresses the security interests of coastal states by specifying the rights and 

duties they enjoy in distinct and successive maritime zones that emanate seaward from 

their land territories. Coastal states enjoy the highest degree of legally protected security 

interests in the zone closest to their land territory—the territorial sea—and fewer legally 

protected security rights in the outer zones. UNCLOS expanded the breadth of the 

territorial sea to a distance of twelve nautical miles. Most states previously recognized 

territorial seas of only three nautical miles, prompting some states during the negotiations to express concern that three nautical miles was no longer adequate for their 

security;8

 this is especially the case in the age of airpower, where the edge of the territorial sea marks the limits of its national airspace.9

 Even in the contiguous zone the coastal 

state’s jurisdiction is limited in the convention to only four specific areas: customs, fiscal, 

immigration, and sanitary laws. Opposition to extending contiguous zone rights to cover 

security interests reflected concern during the negotiations “that security zones represent 

a particular threat to the freedom of navigation.”10 Because the contiguous zone is not 

part of the territorial sea, the high-seas freedom of overflight for military aircraft that 

applies in the EEZ is also applicable in the contiguous zone.11

States may establish air-defense identification zones (ADIZs) beyond national airspace; 

however, ADIZs are merely a reporting and identification regime for aircraft bound for 

coastal and island states. Although there are no relevant provisions in UNCLOS, ADIZs 

are recognized under customary international law and state practice and are legally 

justified on the basis that a state has the right to establish reasonable conditions of entry 

into its national airspace. Accordingly, an aircraft approaching national airspace may be 

required to identify itself while in international airspace as a condition of entry approval. 

Were a state to attempt to require all aircraft penetrating an ADIZ to comply with ADIZ 

procedures, whether or not the aircraft intended to enter national airspace, such regulations would violate international freedoms of navigation and could be ignored. International law does not recognize the right of a coastal state to apply its ADIZ procedures 

to foreign aircraft in such circumstances. Accordingly, military aircraft not intending 

to enter national airspace need not identify themselves or otherwise comply with ADIZ 
52 china maritime studies

procedures established by other nations.12 International law does not recognize the right 

of coastal states to exclude or regulate the activities of foreign military aircraft in areas 

outside their national airspace.

Chinese scholars have tried to assert “security interests” as a protected coastal-state interest in the EEZ, even though earlier efforts to have such interests included in UNCLOS 

failed.13 In particular, they have tried to prohibit military exercises, weapons practice, 

and maneuvers in the EEZ. These efforts have been operationally challenged. Yet it is 

noteworthy that the negotiating history of UNCLOS does not record any specific objection to aerial surveillance or reconnaissance of the coastal state in the EEZ.14

The EEZ and ICAO 

China’s arguments in favor of a coastal state’s right to curtail international military freedoms in the airspace above the EEZ have been considered and rejected by the community of states. With the introduction of a new legal regime in the EEZ, Brazil requested 

that the International Civil Aviation Organization (ICAO) examine the EEZ’s impact 

on international air law and consider treating the EEZ the same as national airspace 

with respect to overflight.15 ICAO is a specialized United Nations (UN) agency created 

by the Chicago Convention on International Civil Aviation and is designed to promote 

the safety of air navigation.16 Its executive body—the ICAO Council—has exclusive and 

plenary authority to adopt international standards, known as “Rules of the Air,” for flight 

over the high seas.17

Before UNCLOS was negotiated, the world’s airspace was generally classified as either 

national (that over the state’s land areas and territorial waters) or international (that over 

areas traditionally considered high seas). This classic division of the world’s airspace 

is reflected in the Chicago Convention, within which each state is granted complete 

and exclusive sovereignty over its territorial airspace but by which over “the high seas” 

(which now includes the EEZ) civil aircraft are subject to the Rules of the Air adopted by 

ICAO.18

The Rules of the Air apply to all international civil aviation, without exception.19 The 

binding nature of these rules over the high seas is derived from article 12 of the Chicago 

Convention: “Over the high seas, the rules in force shall be those established under this 

Convention.”20 If a civil aircraft cannot comply with ICAO standards, the aircraft may 

not legally fly over the high seas. Moreover, every state has an international obligation 

“to insure the prosecution of all persons violating the regulations applicable.”21 In the 

words of Professor Michael Milde, “It is a unique feature in international law-making 

that an executive body of an international organization can legislate . . . with binding 
military activities in the eez 53

effect for all 156 [now 190] contracting States with respect to the Rules of the Air applicable over the high seas which cover some 70 percent of the surface of the earth.”22 

Brazil’s request in effect sought to remove ICAO’s jurisdiction to legislate binding Rules 

of the Air for the airspace above the EEZ, which previously had been a portion of the 

high seas. In evaluating Brazil’s request, ICAO had to determine whether for purposes 

of the Rules of the Air the EEZ is still part of the high seas (with new additional rights of 

the coastal state relating to the natural resources) or a jurisdictional zone of the coastal 

state (that retains high-seas freedoms but would be subject to substantial coastal-state 

regulation, much like the innocent-passage regime). If it is the former, ICAO retains 

exclusive jurisdiction to legislate Rules of the Air. If it is the latter, national laws and 

regulations would apply in the EEZ. 

The ICAO Legal Committee directed the ICAO Secretariat in 1983 to prepare a detailed 

study to consider the possible impact of UNCLOS on the application of the Chicago 

Convention and other international air law instruments. The results of this study were 

published in 1987 and reached an important conclusion with respect to the airspace 

above the EEZ.23 The study declared:

19.4 Exclusive economic zone: full freedom of navigation and overflight is to be enjoyed by 

all States and the coastal States cannot impose their aeronautical laws and regulations in 

that zone; for greater certainty about the general legal status of the EEZ, it would appear 

desirable if the ICAO member States were to reach a consensus and accept an interpretative determination that, for the purpose of the Chicago Convention, its Annexes and other 

international air law instruments, the exclusive economic zone is deemed to have the same 

legal status as the high seas and any reference in these instruments to the high seas should 

be deemed to encompass the exclusive economic zone.24

 The desired consensus with respect to the legal status of the EEZ’s airspace was instantly 

reached, in practice if not in a formal declaration. The study’s results have not been challenged, disputed, or superseded. ICAO did not further pursue the matter, and the study’s 

results inform ICAO’s governance to this day. ICAO’s jurisdiction to legislate Rules of 

the Air over all areas previously considered high seas, to include the EEZ, continues 

unabated. Coastal states remain without authority to subject foreign civil aircraft transiting the EEZ to their domestic air regulations as they could do for civil aircraft flying over 

their territory.25 For its part, ICAO continues to employ the term “high seas” when referring to the airspace above the EEZ.26 In this sense, the EEZ has the same legal status as 

the high seas. Although ICAO’s competence in the EEZ is limited to prescribing Rules of 

the Air for civil aircraft, its conclusion as to the EEZ’s legal status as a portion of the high 

seas is also consistent with state practice with regard to the treatment of military aircraft 

in this same airspace. 
54 china maritime studies

International law applies this same division of the world’s airspace to military aircraft. 

The Chicago Convention contains two provisions applicable to military aircraft. The 

first concerns national airspace, whereby the military aircraft are prohibited from entering another state’s territorial airspace without special authorization or diplomatic clearance.27 The second deals generally with international airspace, in which military aircraft 

must exercise due regard for the safety of navigation of civil aircraft.28 The Chicago 

Convention does not otherwise regulate military aircraft.29

UNCLOS Contributions to the Treatment of Military Aircraft

UNCLOS’s treatment of military aircraft in international airspace is not only consistent 

with the Chicago Convention’s treatment of these aircraft but makes several important 

contributions to international law. First, UNCLOS confirms that military aircraft enjoy 

sovereign immunity.30 The only other multilateral treaty to recognize expressly the 

sovereign immunity of military aircraft was the 1919 Paris Convention, which provides 

that military aircraft are entitled to “the privileges which are customarily accorded to 

foreign ships of war.”31 Because this provision was not carried forward in the Chicago 

Convention, Professor John Cobbs Cooper, the chairman of the committee that drafted 

and reported article 3 of the Chicago Convention, stated: “It is felt that the rule stated in 

the Paris Convention that aircraft engaged in military services should, in the absence of 

stipulation to the contrary, be given the privileges of foreign warships when in national 

port is sound and may be considered as still part of international air law even though 

not restated in the Chicago Convention.”32 UNCLOS thus reaffirms the customary law 

concerning the privileges and immunities of military aircraft.

Second, UNCLOS recognizes that military aircraft enjoy certain constabulary powers in 

the EEZ and over the high seas, such as the rights of visit and of hot pursuit.33 Military 

aircraft play an important role in ensuring the public order of the oceans. 

Third, UNCLOS expressly reaffirms that all aircraft, including military aircraft, enjoy the 

freedom of overflight in international airspace, a general principle of international law 

that was only implied in the Chicago Convention.34 In national airspace, military aircraft 

likewise enjoy the right of transit passage over international straits and archipelagic sealanes, the same as civil aircraft.35 Transit passage over international straits or archipelagic 

sea-lanes is treated as similar to passage through international airspace, in that civil 

aircraft must comply with ICAO Rules of the Air, while military aircraft need only monitor certain emergency radio frequencies and have due regard for the safety of navigation 

of other aircraft. 

Fourth, UNCLOS requires all aircraft to have due regard for the safety of navigation of 

all other aircraft.36 The Chicago Convention requires only that military aircraft exercise 
military activities in the eez 55

due regard for the safety of navigation of civil aircraft.37 It does not require military 

aircraft of one state to have due regard for the safety of military aircraft of other states. 

Thus, under UNCLOS, a coastal state may dispatch military aircraft to shadow foreign 

military aircraft approaching its territorial airspace for the purpose of safeguarding 

national security;38 however, it is also clear that the coastal state must not endanger the 

foreign military aircraft, except in self-defense. To endanger another state’s military aircraft would be contrary to the coastal state’s obligation to have due regard for the rights 

and duties of the foreign state in the EEZ.

The ICAO Manual on Military Activities

Shortly after publishing the study on the EEZ’s impact on international air law, ICAO in 

1990 published the Manual Concerning Safety Measures Relating to Military Activities Potentially Hazardous to Civil Aircraft Operations.39 Since ICAO does not have authority to 

regulate the activities of military aircraft, the guidance material is advisory in nature—

that is, not binding on any state.40 However, its key assumptions are especially noteworthy, because the manual was developed by the ICAO Secretariat with the assistance of an 

air navigation study group consisting of both civil air traffic services and military experts 

from seven contracting states and three international organizations.41

The guidance material carries forward the traditional air-law perspective on the two 

types of airspace. The manual calls for the coordination of military activities with the 

appropriate air traffic services authorities “whether over the territory of a State or over 

the high seas,” with no mention of the EEZ.42 The manual provides that coordination 

of military activities should be effected “whether the military and the ATS [air traffic 

services] authorities belong to the same or different states.”43

This latter stipulation reflects ICAO’s recognition that military activities may occur in 

areas outside of the coastal state’s territory, where the coastal state provides air traffic and flight services for international civil aviation. Such services are usually part of 

a flight information region (FIR). FIRs are allocated to coastal states by ICAO for the 

safety of civil aviation and encompass both national and international airspace. FIRs 

often extend to the airspace beyond the territorial sea and into the EEZ. 

The manual further anticipates that military activities may be carried out in the FIR 

of a coastal state without the coastal state’s consent. The manual advises that military 

activities in international airspace administered by the coastal state should be coordinated “even if the States whose military organization and ATS authorities concerned 

find themselves temporarily in diplomatic disagreement.”44 This last statement confirms 

ICAO’s understanding that the coastal state’s consent is not required.
56 china maritime studies

If direct coordination with the appropriate ATS authorities via aeronautical or diplomatic channels is not possible, the coordination should be effected with the assistance 

of the appropriate regional office of ICAO or the ATS authorities of another state.45 The 

manual suggests that the state whose military organization is planning the potentially 

hazardous activities should initiate the coordination process with the appropriate ATS 

authorities:

For example, a naval force of State A, operating in the FIR of (friendly) State B, plans a 

potentially hazardous activity in the FIR of State C and States A and B agree through prior 

arrangements, the ATS authority of State B may coordinate the potentially hazardous activity directly with the ATS authority of State C. The ATS authority will be able to provide 

information and assistance in achieving coordination with all appropriate ATS authorities 

and ATS units and to give advice as to the impact which the planned activity is likely to 

have on civil aircraft operations in the area.46

The implication of the manual’s example is clear—international law permits military 

activities to be conducted in a FIR administered by a foreign state even when those 

activities are unwelcome. The EEZ is an area within the FIR where military activities can 

be conducted without the coastal state’s consent. The legal regime of the airspace over 

the EEZ remains what it was before the EEZ was created—international airspace. 

Finally, although military aircraft enjoy the high-seas freedom to fly in the EEZ, the 

manual does identify military activities that could pose a threat to civil aircraft and that 

should be coordinated with ATS authorities.47 Aerial reconnaissance and surveillance 

were not included in this list. Accordingly, there is no duty to notify a coastal state of 

upcoming surveillance and reconnaissance flights in a FIR beyond its national airspace.

UNIDIR on Aerial Reconnaissance

In 1990, after UNCLOS was opened for signature and ICAO had published the results 

of its study on the legal status of the EEZ’s airspace, the UN Institute for Disarmament Research (UNIDIR) published a document in which the UN agency expressed 

the view that aerial reconnaissance conducted in international airspace—or “peripheral 

reconnaissance”—is legally permissible:

There is nothing illegal per se in aerial reconnaissance. In time of peace its legality depends 

upon whether it is being conducted in national or international airspace. If reconnaissance 

aircraft of State A is flying in international airspace, at no time entering the territorial 

airspace of State B whose territory it is photographing or otherwise monitoring, then State 

A commits no offense. This is termed “peripheral reconnaissance.” In contrast, should 

the aircraft of State A stray into the territorial airspace of State B, although it performs the 

same act, its locus converts this into an illegal activity, provided it has not obtained the 

prior consent of State B. The latter is termed “penetrative reconnaissance.”48
military activities in the eez 57

UNIDIR cited two incidents in 1960 to support its views about “peripheral” and 

“penetrative” reconnaissance. The first incident concerned a U-2 aircraft shot down in 

1960 deep in Soviet airspace. The Soviet Union captured the U-2 pilot and convicted 

him of espionage. The United States did not deny that the U-2 pilot had violated Soviet 

airspace, and it did not protest the Soviet prosecution of its pilot. 

The second incident occurred two months after the first incident. A Soviet fighter shot 

down an RB-47 reconnaissance aircraft over the Barents Sea in international airspace. 

The United States strenuously protested the shoot-down, noting that the RB-47 aircraft 

had at all times remained outside the territorial sea of the Soviet Union and arguing 

that its destruction was a clear breach of international law. The Soviet Union implicitly 

admitted its error by expeditiously repatriating the survivors without charging them 

with espionage, even though the RB-47 had flown close to its territory and was conducting military reconnaissance.49 The distinguishing feature of this last incident was the 

aircraft’s presence in international airspace. 

Although the legal views expressed by UNIDIR do not bind UN member states, these 

views have persuasive value in that they accurately reflect the prior acceptance within the 

international community of “peripheral reconnaissance” as a lawful use of the sea. The 

aircraft’s presence in international airspace determines whether its activities are legally 

permitted.

In this way, aerial reconnaissance in the EEZ is like space-based reconnaissance and 

surveillance. Although space-based reconnaissance and surveillance may be directed at 

the surface of the earth, the right to conduct them is generally accepted. Such activity 

originates in outer space, an area that is beyond the sovereignty of any state and is open 

for use by all states. Just as outer space is not subject to national appropriation by claim 

of sovereignty, “no state may validly purport to subject any part of the high seas to its 

sovereignty,” a provision that applies equally to the EEZ by virtue of article 58(2) of 

UNCLOS.50

The Debate over “Peaceful Purposes”

Some critics nevertheless oppose aerial reconnaissance in the EEZ by calling for a 

complete demilitarization of the seas.51 These critics usually cite four provisions in 

UNCLOS—articles 19, 58, 88, and 301. 

Article 19(2) of UNCLOS lists activities prohibited during “innocent passage” by ships 

in the coastal state’s territorial sea. One such activity is “any act aimed at collecting information to the prejudice of the defence or security of the coastal State.”52 The critics stress 

that under UNCLOS collecting information on a coastal state in its territorial sea can be 
58 china maritime studies

prejudicial to the peace, good order, and security of the coastal state, thus rendering a 

ship’s passage in the territorial sea as not “innocent.” 

Additionally, article 88 of UNCLOS provides that “the high seas shall be reserved for 

peaceful purposes.” Article 58(2) incorporates by reference this provision into the EEZ’s 

legal regime. Finally, article 301 concerns the peaceful uses of the seas: “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.”

In citing these provisions, the critics reason that “an activity considered to violate innocent passage in the territorial sea cannot be considered to be a ‘peaceful activity’ in 

the EEZ.”53 These critics argue that intelligence gathering, no matter where it occurs, is 

prejudicial to the coastal state’s security, because it constitutes a threat or use of force 

against the coastal state. They conclude that UNCLOS prohibits aerial reconnaissance in 

the EEZ.

The difficulty with this logic, however, is that it would lead to the complete demilitarization of the seas, as some critics acknowledge.54 The peaceful-purposes clauses do not 

impose any blanket restrictions on military activities at sea. The term “peaceful purposes” is not defined anywhere. Intelligence-gathering activities have historically constituted 

one of the traditional uses of the sea and until recently were undertaken without protest 

from coastal states. Many states have flown aerial reconnaissance missions in the EEZ, 

including China and Russia.55

The Real Meaning of “Peaceful Purposes” 

Article 301 of UNCLOS provides the most plausible explanation of what is meant by 

“peaceful purposes.” Article 301 was clearly inspired by article 2(4) of the UN Charter, 

repeating verbatim the latter’s ban on the threat or use of force.56 It should be noted, 

however, that the UN Charter does not prohibit just any threat or use of force.57 It must 

be a threat or use of force against the territorial integrity or political independence of a 

state or otherwise be inconsistent with the principles of international law embodied in 

the charter. 

For example, the concentration of naval forces in the EEZ of another state accompanied by certain political demands against that state would violate the UN Charter. A 

coastal state could consider foreign military maneuvers in its EEZ a threat of force, if 

the maneuvers were conducted in an atmosphere of high political tension and accompanied by tacit or overt demands.58 The point is that the threat or use of force must be 

accompanied by a coercive intent to intimidate the other state into taking or not taking 

certain action, and the threat must be directed against the territorial integrity or political 
military activities in the eez 59

independence of that state in a manner inconsistent with the UN Charter.59 It is difficult 

to understand how aerial reconnaissance by an unarmed military aircraft in international airspace would on its own constitute a threat or use of force in violation of the UN 

Charter. State practice reveals a high degree of tolerance toward mere reconnaissance or 

surveillance of the coastal state from international airspace. 

Misapplication of the Innocent-Passage Regime

The critics’ argument misapplies the innocent-passage regime to aircraft. Innocent passage is available only to ships, not to aircraft. No aircraft of any type—state or civil—

can claim a customary right of “innocent passage” through any part of another state’s 

national airspace, except for transit passage over international straits and archipelagic 

sea-lanes. Civil aircraft fly over, and land in, the territory of other states only because a 

privilege is conferred by the Chicago Convention or other treaty.60 The privilege to fly 

over another state or land in its territory may be suspended in time of armed conflict 

or national emergency.61 When an aircraft makes an unwelcome intrusion into national 

airspace, the mere violation of national airspace may be viewed as a direct threat to 

the state’s security, especially when the destructive power of a nuclear weapon or other 

weapon of mass destruction potentially on board an aircraft is taken into consideration. 

The coastal state cannot always know whether the aerial intrusion is deliberate and with 

illicit intent or innocent and essentially harmless. On the other hand, an aircraft’s mere 

flight in international airspace does not in itself constitute a threat to the coastal state. 

Moreover, the critics’ argument ignores the territorial sea’s proximity to the coastal 

state as well as the legal distinctions in UNCLOS between the various zones emanating 

outward from the territory. To appreciate this distinction, one need only consider other 

activities that are also expressly proscribed during innocent passage in the territorial 

sea—such as the launching, landing, or taking on board of aircraft on a ship. Yet this 

activity is lawful when done outside the territorial sea or during transit passage over international straits or archipelagic sea-lanes. In fact, military aircraft may fly in formation 

during transit passage. The exclusion of certain activities from the territorial sea—the 

zone closest to a coastal state—suggests that these activities are permitted elsewhere. 

Otherwise, UNCLOS would flatly prohibit these activities no matter where they occur. 

Aerial Reconnaissance of Coastal States Promotes International Peace and 

Security

Information about the coastal state collected from the EEZ can apprise neighbors and 

interested states about the coastal state’s ambitions or potential to threaten the region or 

beyond. Additionally, the UN Security Council, which is responsible for maintaining international peace and security, does not have its own intelligence service. It depends on 
60 china maritime studies

information it receives from UN member states. Yet new threats to international peace 

and security continue to arise, including from a number of coastal states, especially 

states that are secretive and closed. 

Recent examples of coastal states with programs that pose grave concern to other 

states include the Democratic People’s Republic of Korea and the Islamic Republic of 

Iran. North Korea recently conducted a second nuclear test in defiance of UN Security 

Council resolutions.62 This test came shortly after North Korea launched from within 

its territory a long-range rocket, also in defiance of UN Security Council resolutions.63

Additionally, the Islamic Republic of Iran is reportedly developing a nuclear weapons 

program and is itself the subject of several UN Security Council resolutions.64

Without reliable information, the UN Security Council cannot reach agreement on appropriate and effective collective action to respond to threats. Through aerial reconnaissance, the international community may refine its strategic assessment of a country and 

acquire a better understanding of the threat it may pose. The collection of intelligence 

can protect against surprise attack and reduce tension. 

Conclusion

UNCLOS preserves in the EEZ the right of overflight as well as other “internationally 

lawful uses of the sea” related to the operation of aircraft. Historically, aerial reconnaissance constituted an internationally lawful use of the sea. In this respect, UNCLOS 

makes important contributions to international law by clarifying the treatment of 

military aircraft in international airspace. UNCLOS confirms that military aircraft enjoy 

sovereign immunity, and it recognizes the right of military aircraft to enter into another 

state’s EEZ and to exercise rights and duties within it—in particular, the rights of visit 

and hot pursuit. UNCLOS requires coastal states to exercise due regard for the rights and 

duties of other states in the EEZ. 

Other states must likewise have due regard for the rights and duties of the coastal state 

in the EEZ. However, the coastal state’s rights, duties, and jurisdiction in the EEZ relate 

solely to the natural resources and the maritime environment. UNCLOS does not 

identify the security interests of the coastal state in the EEZ as a legitimate area for legal 

protection and does not favor the security interests of the coastal state over the security 

interests of other states in the EEZ. 

Because UNCLOS created a new legal regime, ICAO examined the potential impact 

of UNCLOS on air-law instruments—in particular, the Chicago Convention. ICAO 

determined that for purposes of international civil aviation the legal status of the EEZ’s 

airspace remains essentially the same as it was before UNCLOS was negotiated, and it 
military activities in the eez 61

concluded that no coastal state may impose its aeronautical regulations in the EEZ on 

international civil aviation. 

ICAO continues to refer in its publications to only two kinds of airspace: territorial 

airspace and airspace “over the high seas.” ICAO has also published recommendations 

on the coordination that should occur between a state’s military authorities and the 

coastal state’s ATS authorities when the coastal state administers the FIR where military 

activities occur. This coordination should occur even if the two states are in temporary 

diplomatic disagreement but is not necessary for reconnaissance and surveillance. 

Aside from the “due regard” provisions relating to the EEZ’s natural resources, the only 

limitation imposed by UNCLOS on military activities is that they be peaceful—that 

they not violate the UN Charter’s prohibition against the threat or use of force against 

a state’s political independence or territorial integrity. Although aerial reconnaissance 

may be unwelcome, intelligence gathering in the EEZ involves neither the threat nor the 

use of force prohibited by the UN Charter. In fact, aerial reconnaissance can be vital to 

international peace and security. 

The author expresses appreciation to Mr. Edward 

Monihan, Lt. Col. Duane Thompson, Squadron 

Leader Catherine Wallis (Royal Australian Air 

Force), and Squadron Leader Allan Steele (Royal 

Air Force) for their insights and comments.

1. United Nations [hereafter UN], United Nations 

Convention on the Law of the Sea of 10 December 

1982, effective 16 November 1994 [hereafter 

UNCLOS], art. 55.

2. Ibid., art. 38(1) (international straits), art. 53(2)

(archipelagic sea-lanes).

3. Ibid., arts. 38(2), 53(3).

4. Moritaka Hayashi, “Military and Intelligence 

Gathering Activities in the EEZ: Definition of 

Key Terms,” Marine Policy 29 (2005), p. 133.

5. UNCLOS, art. 246(1).

6. See ibid. at art. 19(1)(g) (permitting the coastal 

state to regulate marine scientific research [MSR] 

and hydrographic surveys during innocent passage); art. 40 (same for transit passage); but see 

art. 56(1)(b)(ii) (permitting the coastal state to 

regulate MSR without any mention of hydrographic surveys).

7. “Spokesman Zhu Bangzao Gives Full Account of 

the Collision between US and Chinese Military 

Planes,” Ministry of Foreign Affairs of the People’s 

Republic of China, 4 April 2001, www.fmprc.gov 

.cn/.

8. R. R. Churchill and A. V. Lowe, The Law of the 

Sea, 3rd ed. (Manchester, U.K.: Manchester Univ. 

Press, 1999), p. 138.

9. See the text accompanying notes 30–31 below.

10. Churchill and Lowe, Law of the Sea, p. 138. 

11. Myron H. Nordquist, ed. in chief, Satya N. 

Nandan and Shabtai Rosenne, gen. eds., United 

Nations Convention on the Law of the Sea 1982: 

A Commentary (Herndon, Va.: Brill, 1993), vol. 2 

[hereafter Commentary, vol. 2], p. 267. 

12. For the American position on ADIZ, see U.S. 

Defense Dept., Use of Airspace by U.S. Military 

Aircraft and Firings over the High Seas, DODD 

4540.1 (Washington, D.C.: 28 March 2007), 

paras. 4.1 and 6.4, available at www.dtic.mil/.

13. See Commentary, vol. 2, pp. 521–44.

14. According to one scholar, the sole reference to 

intelligence gathering as a form of objectionable 

military activity is contained not in a published 

declaration on signature or ratification of the 

convention but in legislation of Iran of 1993 that 

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.” Ivan Shearer, “Military Activities in the Exclusive Economic Zone: 

The Case of Aerial Surveillance,” Ocean Yearbook

17 (2003), p. 556 (citations omitted).

Notes
62 china maritime studies

15. See UN Docs. ICAO/C-WP/8077, 1 October 

1985, pp. 9–10, and ICAO/LE 4/41-84/33, 1984, 

pp. 17–20; Hayashi, “Military and Intelligence 

Gathering Activities in the EEZ,” p. 127; Duk-ki 

Kim, “A Korean Perspective,” Marine Policy 29 

(2005), p. 159; and Barbara Kwaitkowska, “Military Uses in the EEZ: A Reply,” Marine Policy 11 

(1987), pp. 249–50.

16. Convention on International Civil Aviation,

7 December 1944, 15 UNTS 295, TIAS 1591 

[hereafter Chicago Convention]. The Chicago 

Convention has been ratified by 190 states, nearly 

the entire international community. See International Civil Aviation Organization, www.icao.int/.

17. International Civil Aviation Organization [hereafter ICAO], International Standards, Rules of the 

Air, Annex 2 to the Convention on International 

Civil Aviation, 9th ed., July 1990. 

18. See ibid., art. 12.

19. See ibid., arts. 12, 37. Additionally, every state 

should comply in its territory with ICAO standards to the “highest practicable degree” (ibid., 

art. 37). Of course, this obligation depends on 

the state’s ability to do so. Some states lack the 

resources, the technology, or the expertise to 

comply with certain standards. When a regulation is beyond the power of a state to comply 

with it, international law does not require the 

state to do the impossible—or, as it is said, ultra 

posse nemo tenetur. If a state “finds it impracticable to comply in all respects with any such 

international standards or procedure,” it must 

file a “difference” with ICAO, notifying it of “the 

differences between its own practice and that 

established by the international standard”; ICAO 

will then notify all other states of this difference. 

Over the high seas, however, states may not file 

differences or deviate from the Rules of the Air. 

20. Ibid., art. 12.

21. Ibid.

22. Michael Milde, “Interception of Civil Aircraft vs. 

Misuse of Civil Aviation (Background of Amendment 27 to Annex 2),” Annals of Air and Space 

Law 11 (1986), p. 106.

23. Consideration of the Report of the Rapporteur on 

“United Nations Convention on the Law of the 

Sea—Implications, If Any, for the Application of 

the Chicago Convention, Its Annexes and Other International Air Law Instruments,” ICAO Doc. No.: 

LC/26/WP/5-1, 4 February 1987, reproduced in 

International Organizations and the Law of the 

Sea Documentary Yearbook 3 (1987), p. 243.

24. Ibid., para. 19.4.

25. See Chicago Convention, art. 11 (air regulations); 

art. 35 (cargo restrictions); art. 3bis(b) (right to 

order aircraft flying over territory to land for 

inspection); art. 5 (right to require landing of 

aircraft in nonscheduled service).

26. The ICAO use of the phrase “over the high seas” 

to describe the airspace over areas traditionally 

considered high seas, including the EEZ, can lead 

to confusion. Although “international airspace” 

does not appear in UNCLOS or in any air-law 

instrument, the term may be useful in referring 

to airspace outside of national airspace where all 

states enjoy the freedom of overflight. 

27. Chicago Convention, art. 3(c).

28. Ibid., art. 3(d), art. 3bis.

29. Ibid., art. 3(a).

30. UNCLOS, art. 42(5) (addressing international responsibility of state of registry for loss or damage 

caused by aircraft entitled to sovereign immunity 

during transit passage); art. 236 (like warships, 

military and other governmental aircraft are 

expressly immune from provisions regarding 

the protection and preservation of the marine 

environment).

31. Convention Relating to the Regulation of Aerial 

Navigation, 13 October 1919, 297 LNTS 173 

(1922), art. 32.

32. John Cobb Cooper, “A Study on the Legal Status 

of Aircraft,” in Explorations in Aerospace Law,

ed. Ivan A. Vlasic (Montreal: McGill Univ. Press, 

1968), p. 243. 

33. See UNCLOS, art. 58(2) (“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”); arts. 

99–107 (repression of piracy); art. 108 (illicit 

traffic in narcotic drugs); art. 109 (unauthorized 

broadcasting); art. 110 (right of visit); art. 111 

(right of hot pursuit); and art. 224 (exercise of 

powers of enforcement). It is noteworthy that the 

right of hot pursuit ceases only when the ship 

pursued enters the territorial sea of its own state 

or of a third state (UNCLOS, art. 111[3]), not 

when it enters the EEZ of its own or a third state.

34. Ibid., art. 58(1).

35. Ibid., art. 38(1). UNCLOS requires military aircraft in transit passage to monitor continuously 

certain emergency radio frequencies to ensure 

the safety of navigation of other aircraft in those 

straits or sea-lanes. Military aircraft are obligated 

to possess this capability if they operate in straits 

or sea-lanes; ibid., art. 39(3)(b) and art. 54. (Article 39 applies, mutatis mutandis, to archipelagic 

sea-lanes passage.)

36. Ibid., art. 87(2), art. 58 (applying in the EEZ the 

freedom of overflight referred to in article 87).

37. Chicago Convention, art. 3(d).
military activities in the eez 63

38. See Bi Guifang and Xiong Xuyuan, “A Legal 

Analysis of the Establishment of Air Defense 

Identification Zones,” in “Social Sciences,” special 

issue, Journal of Ocean University of China, no. 

6 (2007), p. 39 (defending “normal” military 

exercises by Chinese warplanes and warships 

within the Japanese ADIZ against criticism by 

the Japanese).

39. Doc. 9554-AN/932 (first edition, 1990).

40. Ibid., para. 1.2.

41. Ibid., foreword.

42. Ibid., para. 2.16.1 [emphasis added], para. 3.1 

[phrase repeated].

43. Ibid., para. 3.1.

44. Ibid., para. 3.4 [emphasis added].

45. Ibid., para. 3.4.

46. Ibid., para. 3.5.

47. These military activities are “a) practice firing or 

testing of any weapon air-to-air, air-to-surface, 

surface-to-air or surface-to-surface in an area or 

in a manner that could affect civil air traffic; b) 

certain military aircraft operations such as air 

displays, training exercises, and the intentional 

dropping of objects or of paratroopers; c) launch 

and recovery of space vehicles; and d) operations 

in areas of conflict, or the potential for armed 

conflict, when such operations include a potential threat to civil air traffic.” Ibid., para. 3.2. 

48. Allen V. Banner, Andrew J. Young, and Keith 

W. Hall, Aerial Reconnaissance for Verification 

of Arms Limitation Agreements: An Introduction (New York: UN Institute for Disarmament 

Research, 1990) [hereafter UNIDIR], p. 19 

(footnotes omitted), citing with approval F. Fedele, “Overflight by Military Aircraft in Time of 

Peace,” The United States Air Force Judge Advocate 

General’s Corps Law Review 9, no. 5 (1967), p. 8.

49. UNIDIR, p. 20; Fedele, “Overflight by Military 

Aircraft in Time of Peace,” p. 21.

50. UNCLOS, art. 89.

51. See, e.g., Li Guang-Yi, “On Legal Issues Associated with the Military Usage of Exclusive 

Economic Zone,” Journal of Xi’an Politics Institute

18, no. 2 (April 2005), p. 57 (“the substantial 

spirit of the ‘for peaceful purposes only’ principle 

is complete demilitarization”).

52. UNCLOS, art. 19(2)(c).

53. See, e.g., Ji Guoxing, “The Legality of the Impeccable Incident,” China Security 5, no. 2 (Spring 

2009), p. 19.

54. See, e.g., Li Guang-Yi, “On Legal Issues Associated with the Military Usage of Exclusive 

Economic Zone.”

55. For China, Hayashi, “Military and Intelligence 

Gathering Activities in the EEZ,” p. 135; Bi 

Guifang and Xiong Xuyuan, “Legal Analysis of 

the Establishment of Air Defense Identification 

Zones”; Ji Guoxing, “Legality of the Impeccable

Incident,” pp. 19–20 (defending the right of 

transit passage by Chinese warships through the 

Tsugaru and Tsushima Straits into the Japanese 

EEZ).

For Russia, Michael Evans, “Russian ‘Spy’ Planes 

Put RAF on Cold War Alert,” Times (London), 

10 May 2007, www.timesonline.co.uk/; Christian 

Neef, “Why Is Moscow Risking a New Cold War?” 

Der Spiegel, www.spiegel.de/.

56. B. Oxman, “The Regime of Warships under the 

United Nations Convention on the Law of the 

Sea,” Virginia Journal of International Law 24 

(1984), p. 832. 

57. See Raul Pedrozo, “Military Activities in and over 

the Exclusive Economic Zone,” in Freedom of 

Seas, Passage Rights and the 1982 Law of the Sea 

Convention, ed. M. H. Nordquist, Tommy Koh, 

and John Norton Moore (The Hague: Martinus 

Nijhoff, 2009), p. 241 (“UNCLOS Article 19 

makes a clear distinction between a ‘threat or 

use of force against the sovereignty, territorial 

integrity or political independence of the coastal 

State’ and ‘any act aimed at collecting information to the prejudice of the defense or security of 

the coastal State.’ Both are prohibited in the territorial sea for ships engaged in innocent passage, 

but they are clearly distinct and independent 

activities”).

58. Hayashi, “Military and Intelligence Gathering 

Activities in the EEZ,” p. 126.

59. Ibid., p. 136.

60. For civil aircraft on nonscheduled international 

air service, see Chicago Convention, art. 5. For 

civil aircraft on scheduled international air 

services, see Chicago Convention, art. 6, and 

International Air Services Transit Agreement, 

signed at Chicago on 7 December 1944, available 

at www.icao.int/icao/en/leb/transit.pdf. 

61. Chicago Convention, art. 89. The coastal state 

may also suspend “innocent passage” in peacetime for a variety of reasons, to include weapons 

exercises; UNCLOS, art. 25(3).

62. “North Korea Claims to Conduct 2nd Nuclear 

Test,” New York Times, 25 May 2009.

63. UN SCOR S/RES/1874 (2009). 

64. See UN SCOR S/RES/1737 (2007), UN SCOR S/

RES/1747 (2007), and UN SCOR S/RES/1803 

(2008).

Wu Jilu

CHAPTER FIVE

The Concept of Marine Scientific Research 

The United Nations Convention on the Law of the Sea (UNCLOS) does not permit 

other states to conduct marine scientific research in the exclusive economic zone 

(EEZ) without the permission of the coastal state. However, UNCLOS does not define 

“marine scientific research” or some related terms, such as “hydrographic survey” or 

“military survey.” The United States maintains that hydrographic and military surveys 

do not relate to coastal-state resources and are not for scientific purposes and are therefore high-seas freedoms retained by all states in the EEZ therefore outside the jurisdiction of coastal states.1

 China holds the view that hydrographic surveying is part of 

marine scientific research and has specific laws governing both marine scientific research 

and hydrographic surveying.2

 To understand which position reflects the current state of 

international law, it is necessary to analyze the concept of “marine scientific research” 

(MSR) and related terms.

The History of Marine Scientific Research as a Scientific Concept

As a scientific discipline, MSR, or oceanography, developed over the past 150 years or 

so. The first significant step in this development was the cruise of the British research 

vessel HMS Challenger in 1872–76.3

 The ship, a corvette-type military vessel, departed 

Portsmouth, England, on 21 December 1872 and traveled for more than three years 

circumnavigating the globe and studying the scientific characteristics of the ocean. During the voyage, HMS Challenger visited every continent, including Antarctica, allowing 

scientists to take depth soundings, collect deep-sea water, take sea-bottom and biological 

samples, investigate deepwater motion, and measure temperatures at all depths and in 

all the world’s oceans.4

 It was on this expedition that the existence of manganese nodules 

on the deep-sea bed was first noted. The results from the expedition were staggering and 

filled fifty volumes, leading to increased scientific study of the oceans and to the use of 

the terms “marine science” and “oceanic research” as scientific disciplines. Oceanography 

as a modern science is generally considered to have begun with the cruise of HMS Challenger, which set the pattern for all expeditions for the next fifty years. 

The major scientific emphasis of HMS Challenger’s cruise was on marine biology, and 

in this field significant progress was made during the early days of marine scientific 
66 china maritime studies

research. After this initial period, the emphasis of MSR shifted gradually from biological to physical oceanography.5

 World War II marked the beginning of “postmodern” 

oceanography, and after the war oceanography grew rapidly.6

 There are three factors that 

contributed to this rapid growth. The first and probably the most important factor was a 

boost in terms of technology and knowledge enhancement caused by military necessity. 

The second was the need to satisfy the world’s growing requirements for resource extraction from the oceans, maritime transportation, and naval strategy. The third factor was 

the increase in scientific capacity itself.7

 The emphasis during the postwar period has 

been on geological and geographical studies. In recent years, global climate change and 

the environmental problems of the oceans have strengthened the position of oceanography as an interdisciplinary science. Valuable input has come from an unlikely source—

previously classified data from military observations and systematic surveys that are now 

available to the general public.8

U.S. oceanography grew rapidly after World War II, and in the years immediately after 

the war the Office of Naval Research (ONR), which was established in 1946, provided 

most of the support and much of the leadership. The Bureau of Ships and other naval 

operations groups supplied significant funds for a variety of research activities related 

to their military mission, but ONR funded research activities at the Scripps and Woods 

Hole institutes and thereby fostered a broader research agenda.9

 One federal report for 

fiscal year 1969 shows that the U.S. Navy’s contractual oceanographic program was 40 

percent larger than the program of the National Science Foundation. Another report 

shows them essentially equal. The current structure of the science of oceanography—

which involves an interdisciplinary grouping of marine physicists, biologists, engineers, 

chemists, and geologists—was largely created by the U.S. Navy to meet its specific 

needs.10 During the past century, and especially since World War II, the major provider 

of technological capabilities was the U.S. Navy, resulting in a long and distinguished list 

of scientific accomplishments derived from Navy-developed instruments and technologies.11 The development of oceanography in the United States grew in large part as a 

result of increased national security interests, with the U.S. Navy taking overall responsibility for marine scientific research and supporting extensive scientific investigations to 

provide a more complete understanding of the ocean environment.12

Marine scientific research in China lags behind that in the United States. Nonetheless, 

at an early stage of the development of marine surveys and marine scientific research as 

scientific disciplines, the Chinese navy played an important role. In 1953, the Chinese 

navy headquarters and other departments set up China’s first ocean-wave observatory, in Qingdao.13 In 1956, the navy compiled a tide table of China.14 In July 1957 the 

Chinese navy and the Chinese Academy of Sciences, with other government agencies 

and academic institutes, began to carry out multivessel, simultaneous observations in 
military activities in the eez 67

the Bo Hai Sea and the northwestern Yellow Sea over the period of one year, which was 

the beginning of China’s large-scale comprehensive marine survey program.15 Before 

1964, China’s marine survey and scientific research was conducted under the guidance 

of the Marine Group in the State Science and Technology Commission, organized and 

implemented by the navy.16 In 1964, China established the National Bureau of Oceanography (which was later translated as “the State Oceanic Administration”), whose 

principal function was to organize marine surveys. Initially, the State Oceanic Administration was under the People’s Liberation Army Navy until it was returned to control of 

the State Science Commission in 1980. The results of marine scientific research in China 

have been widely used in resource development and protection, enhance the safety of 

maritime navigation, protect national security, and support military activities at sea. 

Recalling the history of the development of marine scientific research, the broad disciplines it encompasses, and the many purposes for which it was undertaken, marine 

scientific research or oceanography, generally speaking, can be defined as any study or 

related experimental work designed to increase humankind’s knowledge of the marine environment. As a discipline it consists of a number of subdisciplines, which are 

concerned respectively with the physical, chemical, biological, geological, and other 

features of the oceans. The many purposes for which marine scientific research can be 

undertaken include protection of maritime safety, the study of marine living and nonliving resources, and support to military activities at sea. Thus, the purpose for which 

the oceanographic research is undertaken cannot be used as the basis for determining 

whether an activity constitutes marine scientific research for the purposes of UNCLOS, 

nor does the publication or nonpublication of research results determine whether specific research falls within the UNCLOS definition.

Defining Marine Scientific Research 

In the 1950s, the Geneva Convention on the Continental Shelf introduced the concept of 

“fundamental oceanographic research” as distinct from marine exploration for resources:17

The exploration of the continental shelf and the exploitation of its natural resources must 

not result in . . . any interference with fundamental oceanographic or other scientific 

research carried out with the intention of open publication. . . . [Art. 5(1)] 

[Additionally, the] consent of the coastal state shall be obtained in respect of any research 

concerning the continental shelf and undertaken there. Nevertheless, the coastal state shall 

not normally withhold its consent if the request is submitted by a qualified institution 

with a view to purely scientific research into the physical or biological characteristics of the 

continental shelf, subject to the proviso that the coastal State shall have the right, if it so 

desires, to participate or to be represented in the research, and that in any event the results 

shall be published. [Art. 5(8)] 
68 china maritime studies

After the 1970s, the term “marine scientific research” began to earn currency in the 

debates of the United Nations Conference on the Law of the Sea, and the final draft of 

UNCLOS adopted the term, without defining it, to provide coastal-state jurisdiction to 

regulate the conduct of non-resource-related oceanographic research in the exclusive 

economic zone.18

The Ad Hoc Committee to Study the Peaceful Uses of the Sea-Bed and the Ocean Floor 

beyond the Limits of National Jurisdiction held three sessions in 1968. In the course 

of its work reference was made to the increasing role of marine science and technology in the exploration and exploitation of the seabed. Some members of the committee 

pointed out that a distinction should be made between fundamental, or pure, scientific 

research and resource-oriented, or applied, research.19 The distinction between “fundamental” (or “pure” or “basic”) scientific research and “applied” scientific research was 

the source of major conflict at these sessions. The proponents of this distinction insisted 

that fundamental research in the EEZ be carried out in accordance with the principle of 

the freedom of scientific investigation on the high seas. The opposing view was that it 

would be extremely difficult to draw distinctions between the various kinds of research, 

since any data acquired from scientific investigations could be used for commercial or 

other practical purposes.20 In the course of the debates in the following years, it proved 

extremely difficult to develop a consensus definition of marine scientific research. The 

emphasis in the discussions shifted from the development of distinctive criteria to the 

development of rules to govern the conduct of such research. 

Still, three official proposals discussed the definition of marine scientific research. A 

Canadian working paper defined marine scientific research and its objectives: 

2. Marine scientific research is any study, whether fundamental or applied, intended to 

increase knowledge about the marine environment, including all its resources and living 

organisms, and embraces all related scientific activity.

3. The objectives of marine scientific research include achievement of a level of understanding which allows accurate assessment and prediction of oceanic processes and 

provide the basis for the development of a management policy which will ensure that the 

quality and resources of the marine environment are not impaired, and for the rational use 

of this environment, in the service of human welfare, international equity and economic 

progress, and in the interest of peace and international cooperation among States.21

Four Eastern European states jointly proposed that MSR could be defined as follows:

Scientific research in the world ocean means any fundamental or applied research and 

related experimental work, conducted by States and their juridical and physical persons, as 

well as by international organizations, which does not aim directly at industrial exploitation but is designed to obtain knowledge of all aspects of the natural processes and 

phenomena occurring in ocean space, on the seabed and in the subsoil thereof, which is 

necessary for the peaceful activity of States for the further development of navigation and 
military activities in the eez 69

other forms of utilization of the sea and also utilization of the air space above the world 

ocean.22

Finally, article I of a proposal submitted by Malta read, “In these articles the term 

scientific research means any systematic investigation, whether fundamental or applied, 

and related experimental work the primary aim of which is to increase knowledge of the 

marine environment for peaceful purposes.”23

The Working Group on Marine Scientific Research and Transfer of Technology produced a text containing a draft definition of marine scientific research: “Marine scientific 

research is any study and related experimental work, excluding industrial exploration 

and other activities aimed at the direct exploitation of marine resources, designed to 

increase mankind’s scientific knowledge of the marine environment and conducted for 

peaceful purposes.”24

It should be noted that the above definitions of marine scientific research contain elements indicating the nature and objectives of the research activity, in order to distinguish marine scientific research from resource exploration.25 But two proposals submitted during the third session of the conference (UNCLOS III, 1975) did not contain an 

indication of the nature of the research. The definition in the proposal submitted by 

a group of nine Eastern European states reads, “Marine scientific research means any 

study of, or related experimental work in, the marine environment that is designed to 

increase man’s knowledge and is conducted for peaceful purposes.”26

Colombia, El Salvador, Mexico, and Nigeria submitted the following draft: “For the 

purpose of this Convention, marine scientific research means any study and related experimental work conducted in the marine environment designed to increase mankind’s 

knowledge thereof.”27

It seems that the term “marine scientific research” as defined in these two texts included 

not only research activities unrelated to resource exploration but also research activities 

related to resource exploration. However, both proposals made a distinction between 

these two categories of marine scientific research in their substantive provisions. According to these provisions different rules would apply to the two kinds of research. As 

a result, the problem of establishing criteria to define the scope of scientific research 

activities to which the substantive provisions would apply was shifted from the discussions on the definitional article to the discussions on the substantive provisions. At the 

fourth session of the conference (spring 1976), consensus was reached to abandon the 

definition of marine scientific research—at least not to consider the question for the 

time being.28 Consequently, the definition was absent from the final text of UNCLOS 

and remains absent today.
70 china maritime studies

Marine Scientific Research in UNCLOS

UNCLOS does not contain a definition of marine scientific research because there was 

a consensus at the conference that the substantive provisions of the convention clearly 

establish the meaning intended, making a definition of the term unnecessary.29 Examining the substantive provisions related to marine scientific research in the various regimes 

established by UNCLOS, it can be found that the activities that can be regarded as marine scientific research vary in the various maritime zones established by the convention, 

although the term might otherwise seem to have a clear ordinary meaning, as discussed 

above.

Under the regime of the high seas, the term “marine scientific research” can be understood in a general sense. According to article 87, scientific research is one of the six 

fundamental freedoms that can be exercised under the conditions laid down by 

UNCLOS and by other rules of international law.30 The marine scientific research activities within the high seas can be either fundamental or applied. The results can be used 

either for civilian purposes or for military activities. The research can either have no 

direct links with resource development and environmental protection, or it can have as 

its main objective the protection of the marine environment or marine-resource exploration and development. The only exception is that scientific research on the high seas 

cannot be related to the development of the resources of the continental shelf beyond a 

coastal state’s exclusive economic zone.31

The “Area” regime is a new system established under the convention to regulate mineral 

resource development activities on the seabed of the high seas so as to protect these 

resources as the “common heritage of mankind.”32 The provisions of UNCLOS Part IX 

dealing with the Area (i.e., the seabed under the high seas) seem to have as their main 

purpose the regulation of the activities of states in investigating, researching, and developing the resources in the Area. How to protect the environment in the Area while states 

carry out the development of its resources has recently become an important issue.

The meaning of research and the activities under the jurisdiction of coastal states are 

also different, depending on the maritime zone. In the territorial sea, the general meaning of research is used in UNCLOS, which specifies that research and survey activities 

are a violation of the innocent-passage regime in the territorial sea.33 Hydrographic 

surveys and military surveys for the safety of navigation can be seen as applied scientific 

research.

In the EEZ regime, coastal states exercise sovereign rights over exploration, development, 

conservation, and management of marine resources and exercise jurisdiction over marine environmental protection and marine scientific research.34 It is very clear that in the 

exclusive economic zone, the convention treats activities related to resource development 
military activities in the eez 71

and environmental protection separately from marine scientific research, which is in 

sharp contrast with the convention’s approach to the issue in the high seas and the Area. 

Thus, within the EEZ research activities directly related to resource development and environmental protection are not marine scientific research. All remaining activities, including hydrographic and military survey activities, are therefore considered part of marine scientific research, subject to the jurisdiction of the coastal state.

Since in the relevant provisions of the EEZ regime survey activities were not distinguished from marine scientific research, Sam Bateman concludes that “marine scientific 

research, hydrographic surveying and military surveys all overlap to some extent. Some 

so-called military surveys, particularly military oceanographic research, are virtually the 

same as marine scientific research.”35

As for intelligence collection, if the collection is limited to the activities of warships, 

submarines, etc., of the coastal states in order to increase understanding of their performance and to activities and not directly related to the marine environment research, it 

cannot be considered marine scientific research. However, that is a problem beyond the 

scope of this paper.

Conclusion

Although UNCLOS does not fully and finally define marine scientific research, such 

activities are generally divided into fundamental research and applied scientific research. 

Having examined the relevant provisions of UNCLOS, we can find that marine scientific 

research has different usages depending on whether it is directly related to the activities 

of resource exploration and development and of environmental protection. 

Under the regime of high seas, the term “marine scientific research” has its most expansive meaning. In the Area, the main purpose of marine scientific research activities 

is exploration and development of the resources of the Area and the protection of the 

environment of the Area. In the territorial seas, marine scientific research can be seen as 

fundamental research that is different from hydrographic survey.

Under the regimes of the exclusive economic zone and the continental shelf, the exploration, development, conservation, and management of marine resources are considered 

to be the sovereign right of coastal states, and the coastal states exercise jurisdiction over 

marine environmental protection and marine scientific research activities. Here, marine 

survey and research activities directly related to resource development and environmental protection are not considered marine scientific research. As for the hydrographic and 

military surveys in the exclusive economic zone, they are within the scope of activities 

over which the coastal state has the right to exercise jurisdiction, because they fall under 

the definition of marine scientific research for those zones.
72 china maritime studies

1. J. A. Roach and R. W. Smith, Excessive Maritime 

Claims, International Law Studies 66 (Newport, 

R.I.: Naval War College, 1994), p. 247; U.S. Navy 

Dept., The Commander’s Handbook on the Law 

of Naval Operations, Naval Warfare Publication 

(NWP) 1-14M (Washington, D.C.: 1995), sec. 

2.4.2.2.

2. See Zou Keyuan, China’s Marine Legal System 

and the Law of the Sea (Leiden, Neth.: Martinus 

Nijhoff, 2005), pp. 280–83.

3. A complete set of the reports of HMS Challenger’s voyage can be found at eScholarship: 

University of California, escholarship.org/. 

4. Florian H. Th. Wegelein, Marine Scientific 

Research: The Operation and Status of Research 

Vessels and Other Platforms in International Law

(Leiden, Neth.: Martinus Nijhoff, 2005), pp. 

22–24.

5. Alfred H. A. Soons, Marine Scientific Research 

and the Law of the Sea (Dordrecht, Neth.: Kluwer 

Academic, 1982), p. 13.

6. Ocean Studies Board, National Research Council, 

50 Years of Ocean Discovery: National Science 

Foundation 1950–2000 (Washington, D.C.: 

National Academies Press, 2000), p. 107.

7. Wegelein, Marine Scientific Research, pp. 25–26.

8. Ibid., p. 35. “A significant amount of previously 

classified ocean data collected on the high seas 

has been made public and the multiagency 

MEDEA group will continue to bridge the 

national security and civil communities for access to classified environmental data. Releasable 

unclassified data and products are routinely 

made available to the civil sector.” See: “Department of Defense Meeting of the Commission on 

Ocean Policy, November 14, 2001,” United States 

Commission on Ocean Policy, p. 2, oceancommission

.gov/.

9. Ocean Studies Board, 50 Years of Ocean Discovery,

p. 3.

10. Ibid., p. 8.

11. Ibid., p. 131. These instruments and technologies include SWATH bathymetric sonar, laser 

line-scan optical sensors, the global positioning 

satellite system, ocean bottom seismometers, 

seagoing fluxgate total-field magnetometers, 

Alvin and Flip, acoustic Doppler current meters, 

bioluminescence sensors, and long-term mooring technologies.

12. Ibid., p. 201.

13. Luo Yuru and Zeng Chengkui, eds., Marine 

Affairs of Contemporary China [in Chinese] 

(Beijing: China Social Science, 1985), p. 84.

14. Ibid., p. 90.

15. Ibid., p. 38.

16. Ibid., p. 20.

17. Convention on the Continental Shelf, concluded 

29 April 1958, available at untreaty.un.org/. 

18. Adopted in UNCLOS, art. 56. Montserrat GorinaYsern, An International Regime for Marine 

Scientific Research (Ardsley, N.Y.: Transnational, 

2003).

19. Myron H. Nordquist, ed. in chief, Satya N. 

Nandan and Shabtai Rosenne, gen. eds., United 

Nations Convention on the Law of the Sea 1982: 

A Commentary (Dordrecht, Neth.: Martinus 

Nijhoff, 1991), vol. 4, p. 430.

20. Ibid., p. 433.

21. Ibid., p. 441.

22. Ibid.

23. Ibid., p. 442.

24. A/CONF.62/C.3/L.17.

25. Soons, Marine Scientific Research and the Law of 

the Sea, p. 124.

26. A/CONF.62/C.3/L.26.

27. A/CONF.62/C.3/L.29.

28. Soons, Marine Scientific Research and the Law of 

the Sea, p. 123.

29. Ibid., p. 124.

30. UNCLOS, art. 87(1)(f).

31. See, e.g., ibid., arts. 77(1) and 81.

32. Ibid., Part IX, and especially art. 136.

33. Ibid., art. 19(2)(j). “Hydrographic surveys” are 

generally made to obtain information for the 

making of navigational charts and the safety of 

navigation and include determination of one or 

more of several classes of data in coastal or relatively shallow areas—depth of water, configuration and nature of the natural bottom, direction 

and force of currents, heights and times of tides 

and water stages, and hazards of navigation—for 

the production of nautical charts and similar 

products to support safety of navigation. “Military surveys” refers to activities conducted in the 

ocean and coastal waters involving marine data 

collection (whether or not classified) for military 

purposes and can include oceanographic, marine 

geological, geophysical, chemical, biological, 

Notes
military activities in the eez 73

and acoustic data. Equipment used can include 

Fathometers, swath bottom mappers, side-scan 

sonars, bottom-grab and coring systems, current 

meters, and profilers. Moritaka Hayashi, “Military and Intelligence Gathering Activities in the 

EEZ: Definition of Key Terms,” Marine Policy 29 

(2005), p. 131.

34. UNCLOS, art. 56(1).

35. Sam Bateman, “Hydrographic Surveying in the 

EEZ: Differences and Overlaps with Marine 

Scientific Research,” Marine Policy 29 (2005), p. 

174.

The 1982 United Nations Convention on the Law of the Sea (UNCLOS) is perhaps 

the most comprehensive environmental treaty ever adopted.1

 As an umbrella or 

framework treaty, UNCLOS contains broad guidelines for addressing preservation of the 

marine environment. During its negotiation, the United States and other states sought 

to create a treaty that would promote preservation of the marine environment without 

impairing legitimate ocean activities, and this objective was accomplished.2

 Nevertheless, 

the enforcement rights demanded by some coastal states in the exclusive economic zone 

(EEZ) raised the specter of the creation of national lakes, where no foreign-flagged maritime activity could occur without the permission of the coastal state. Before the negotiation of UNCLOS struck a balance between coastal-state and user-state interests, creeping 

jurisdiction threatened to upend completely the existing global system of marine 

transportation. Some feared that such a jurisdictional change could effectively terminate 

world maritime commerce, especially if the world’s coastal states began to enforce widely 

divergent rules or demand the payment of some form of compensation, tribute, or rent 

by foreign-flagged vessels to transit through their offshore waters.3

A workable balance, however, was reached. UNCLOS obligates states parties to take 

measures necessary to protect and preserve fragile marine ecosystems;4

 it also, however, 

provides that the International Maritime Organization (IMO) may “establish rules and 

standards to prevent and control pollution of the marine environment from vessels.”5

States have a general obligation to act through the IMO or a general diplomatic conference to establish international rules and standards regarding vessel-source pollution and 

to reexamine them from time to time as necessary.6

 More specifically, UNCLOS provides 

that in cases in which generally accepted standards are inadequate to protect the environment, member states may work through the IMO to obtain consensus and approval 

for special measures to control vessel-source pollution within the EEZ.7

Some UNCLOS provisions are to be read as directly operative, immediately applicable, 

and complementary to other IMO instruments. For example, the provisions on 

Cdr. James Kraska, JAGC, U.S. Navy

The Functional Approach to Naval Operations

Resources Rights and Environmental Protection in the 

Exclusive Economic Zone 

CHAPTER SIX
76 china maritime studies

navigational rights and freedoms are complete and should be implemented by all states 

as operative provisions. The individual articles contain specific rules that are binding on states and require no additional implementing authority. Similarly, some of the 

environmental provisions of the convention contain operative language as well. The 

provisions contained in article 226 on investigation of foreign vessels, for example, may 

be compared with regulations in article 5 of MARPOL 73/78. Both articles indicate how 

certificates should be inspected and what measures are to be taken when vessels do not 

have proper certificates.8

UNCLOS recognizes that where international rules are inadequate to meet special 

circumstances and a coastal state has reasonable grounds to believe that a particularly 

defined area in the EEZ is required “for recognized technical reasons in relation to its 

oceanographic and ecological conditions,” the coastal state may work through the IMO 

to adopt special rules applicable in the area.9

 The special rules may apply to “certain 

clearly defined” areas of the EEZ, which suggests that they are not intended to apply throughout the entire EEZ of a coastal state. To justify adoption of such measures, 

evidence must suggest that the existing international rules and standards are inadequate 

for the special circumstances occurring within the limited area. The designation process 

requires an IMO determination that the conditions in a particular area correspond to 

the special measures being requested by the coastal state. The coastal state should consult 

with the IMO and other states concerned, and proposals for mandatory measures should 

be supported by scientific and technical evidence and information on reception facilities. Any such rules, moreover, shall not require vessels to observe construction, design, 

equipping, and manning (CDEM) rules that depart from “generally accepted international rules and standards.”10 UNCLOS adopted a bright-line rule against coastal-state 

enforcement of national CDEM standards in the EEZ, the prospect of which “struck terror” into the hearts of ship operators.11 If coastal states had been permitted individually 

to enforce separate CDEM standards, the commercial shipping industry and flag-state 

registries would have been unable to build ships in accordance with uniform design, 

creating an enormous artificial inefficiency in the world transportation system. 

The greatest consideration for understanding coastal-state enforcement within the rules 

of UNCLOS, however, is the distinction between prescriptive jurisdiction and enforcement authority. The authority of the coastal state to prescribe environmental regulations 

in the EEZ is broader than the coastal-state authority to enforce such regulations. That 

is, there is no natural corresponding balance of authority by the coastal state between 

prescription and enforcement. Coastal states have authority to prescribe laws and regulations in the EEZ under article 56 of the convention, provided those rules comply with 

the other rules of the treaty (such as articles 58 and 87, which protect the rights of all 
military activities in the eez 77

states to enjoy high-seas freedoms in the zone). But coastal states do not enjoy a broad 

enforcement mandate in the zone. 

Coastal-State Prescription and Enforcement

The architecture for coastal-state enforcement of environmental rules is set forth in 

UNCLOS article 220. In order to bypass its more stringent rules, since 1990 states have 

begun advocating establishment of particularly sensitive sea areas (PSSAs), which are 

IMO-recognized marine sanctuaries beyond the territorial sea of a coastal state. The 

United States, for example, obtained IMO approval for an enormous PSSA in the northwestern Hawaiian Islands in 2008, even though the area has no discernible international 

shipping and no record of foreign-flagged vessels connected to environmental incidents 

in the area. The PSSA process may be thought of as a shortcut, bypassing UNCLOS 

and other instruments like MARPOL 73/78. This and other treaty-based regimes also 

provide authority for creation of special areas or marine environmental sanctuaries but, 

due to their legally binding nature, require greater procedural fidelity at IMO. The PSSA, 

on the other hand, sometimes captures the same purpose without the burdens of treaty 

negotiations. 

It is important to note that PSSA designation of a particular area does not provide any 

additional authority for coastal-state enforcement of environmental regulation in the 

EEZ beyond what is provided in article 220. That is, informal and nontreaty processes 

of the PSSA, driven by IMO’s consensus procedures and “spirit of cooperation,” cannot 

usurp the rights of all states to freedoms of the seas that are protected in UNCLOS. 

In other words, UNCLOS established an environmental framework that affords certain 

rights and duties to the coastal state, and the fact that a coastal state has secured a PSSA 

designation does not undo that part of the bargain. UNCLOS provides that in cases 

in which a coastal state has “clear grounds” (based on “reasonable suspicion”) that a 

foreign-flagged vessel in its territorial sea has violated laws and regulations adopted in 

accordance with the convention or other applicable international rules and standards, 

the coastal state may undertake physical inspection of the vessel in relation to the suspected violation.12 It is important to note that this provision contains a two-part test for 

launching a physical inspection of the vessel: the coastal state must have clear grounds 

or reasonable suspicion of a violation of its laws, and more important, those laws must 

have been adopted in accordance with the guidance set forth in the convention. Coastalstate laws that are inconsistent with those contained in UNCLOS, such as Canada’s Arctic Waters Pollution Prevention Act, are not eligible for coastal-state assertion of enforcement authority under the convention.13 The coastal state may also, where the evidence 

so warrants, institute proceedings, including detention.14 This action by the coastal state, 

however, triggers the convention’s provisions for prompt release.15
78 china maritime studies

Where a coastal state has “clear grounds” that such a violation has occurred in the EEZ, 

the coastal state may require the foreign-flagged vessel to provide information regarding its identity and port of registry, last and next ports of call, and “other relevant 

information” in order to make a final determination as to “whether a violation actually occurred” (art. 220[3]). In cases in which a state has clear grounds of a “substantial 

discharge causing or threatening significant pollution” in the EEZ, that coastal state may 

initiate a physical inspection of the foreign-flagged ship if the vessel refuses to provide 

relevant information or if the information provided turns out to be “manifestly at variance” with the facts (art. 220[5]). 

In cases presenting “clear objective evidence” that a foreign-flagged vessel in the EEZ 

or territorial seas has committed a violation of laws consistent with UNCLOS, thereby 

causing “major damage or threat of major damage to the coastline” or marine resource, 

the coastal state may institute proceedings against the ship. This may involve detention 

of the vessel, seizing it in rem (art. 220[6]). Such a course of action taken by the coastal 

state, however, once again would set in motion the provisions for the posting of a bond 

or surety and prompt release (art. 220[7]). 

Transport of Radioactive Material

When judiciously applied, the environmental provisions of UNCLOS are not inconsistent with the broad mandate of navigational freedoms, also reflected in the treaty. 

For example, the treaty entitles ships carrying hazardous cargoes to navigate freely 

throughout the territorial sea and the EEZ. In innocent passage, for example, article 23 

states, “foreign nuclear-powered ships and ships carrying nuclear or other inherently 

dangerous or noxious substances shall, when exercising the right of innocent passage 

through the territorial sea, carry documents and observe special precautionary measures 

established for such ships by international agreements.”

Article 23 is important because it presupposes the right to transit a coastal state’s territorial sea with radioactive material and the idea that such transit should be in accordance 

with internationally developed standards rather than unilateral, coastal-state rules. 

UNCLOS is quite clear that coastal states lack competence to circumscribe passage of 

vessels carrying hazardous or nuclear materials merely because of the type of cargo, 

class of vessel, or flag of registry. In this respect, the outcome of the negotiations shows 

evidence of a preference for the protection of navigational freedoms over unilateral 

coastal-state environmental authority. The negotiators avoided—or at least reduced—

the mischief that flows from the politicization of coastal-state environmental regulations 

or the purported imposition of environmental regulations by coastal states to achieve 

nonenvironmental purposes (such as asserting political control over an offshore area). 
military activities in the eez 79

Exclusive Flag-State Jurisdiction

The jurisdictional framework reflected in UNCLOS for prescription and enforcement 

of safety rules and standards is based on exclusive flag-state jurisdiction. The concept is 

further implemented by IMO, through which complementary regulations are adopted 

concerning construction, design, equipment, seaworthiness, and manning of ships used 

for international voyages. The exercise of flag-state jurisdiction is the primary mechanism for control of shipping. Some other areas, including signals, communications, 

prevention of collisions, ship-routing measures, and recommendatory or mandatory 

ship reporting, involve shared flag-state and coastal-state jurisdiction. Article 94 contains 

the basic obligations imposed on the flag states, requiring adoption of safety measures to 

reflect “generally accepted international regulations, procedures and practices.”16 Because 

of their worldwide acceptance, the IMO considers the following instruments to fulfill the 

“generally accepted” requirement: the International Convention for the Safety of Life at 

Sea, 1974 (SOLAS 1974); the Protocol of 1978 relating to the International Convention 

for the Safety of Life at Sea, 1974 (SOLAS Protocol 1978); the International Convention on Load Lines, 1966 (Load Lines 1966); the International Convention on Tonnage 

Measurement of Ships, 1969 (TONNAGE 1969); the Convention on the International 

Regulations for Preventing Collisions at Sea, 1972 (COLREG 1972); International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978 

(STCW 1978); and the International Convention on Maritime Search and Rescue (SAR 

1979).17 The effort to broaden enforcement of IMO safety and marine pollution standards was further strengthened by the incorporation into SOLAS of the International 

Safety Management Code, under which shipping firms are subject to a safe management 

system administered by the flag state.

It has long been recognized that some flag states have not lived up to their responsibility 

to implement and enforce generally accepted international standards on vessels flying 

their flags. The “flags of convenience” or “open registries,” such as those of Panama and 

Liberia, have been particularly vulnerable to the charge. In order to strengthen flagstate efforts, the IMO adopted Guidelines to Assist Flag States in the Implementation of 

IMO Instruments.18 The resolution provides flag states with more refined direction on 

establishing and maintaining application and enforcement of a range of IMO treaties.19

A subsequent IMO resolution assists flag states in conducting self-assessments of their 

performance.20 Finally, IMO’s Measures to Further Strengthen Flag State Implementation provide guidance for more rigorous flag-state implementation of IMO standards.21

The IMO Sub-Committee on Flag State Implementation (FSI) was established in 1992 

upon the recommendation of the Maritime Safety Committee (MSC) for a stricter and 

more uniform application of existing regulations. The move followed several high-profile 

marine accidents, including the Exxon Valdez. Since its creation, additional marine 
80 china maritime studies

disasters have reinforced the importance of strengthening flag-state implementation of 

IMO standards. The FSI seeks to identify measures needed to ensure consistent global 

instruments. Many of the shortfalls are related to a lack of capacity, particularly in 

developing states, and the FSI has contributed to increased training among flag states. 

In November 2003, the IMO Assembly adopted the Voluntary IMO Member State Audit 

Scheme.22 The goal of the scheme is to enhance the performance of member states in 

implementing the IMO instruments relating to maritime safety and the prevention of 

vessel-source pollution. Significantly, the IMO Assembly adoption of a voluntary scheme 

specifically did not foreclose the possibility that in the future it could become mandatory. 

This regulatory architecture means that except in rare cases, usually involving port-state 

interests, flag states bear exclusive responsibility for enforcement of international standards.23 Port states may elect to impose port-state control measures, but such regulations 

may be implemented only against foreign-flagged vessels that are bound for a port of 

the coastal state.24 Despite the broad and liberal regime of innocent passage in the territorial sea, some coastal states purport to prescribe and enforce special environmental 

measures against vessels exercising their right of navigation.25 More onerous still, coastal 

states are becoming increasingly willing to impair the enjoyment of high-seas freedoms 

of navigation and overflight in the EEZ, often purportedly for environmental purposes. 

Antigua and Barbuda, Argentina, Chile, Colombia, Dominican Republic, Mauritius, New 

Zealand, and South Africa, for example, all have sought to exclude foreign-flagged vessels 

carrying radioactive “ultra-hazardous” cargo through their EEZs.26 In several examples 

in the 1990s, vessels carrying highly radioactive material attracted widespread protest. 

The voyages of Pacific Pintail, Pacific Teal, Pacific Swan, and Akatsuki Maru drew protest 

on several continents. In 1992 the Akatsuki Maru, a refitted tanker, left Cherbourg, 

France, with a cargo of 2,200 pounds of plutonium oxide bound for Japan for use in an 

experimental breeder reactor. The twenty-seven-thousand-kilometer journey wound 

around the Cape of Good Hope in Africa, dipped south of Australia, then headed north 

toward Japan.27 Greenpeace targeted the ship, and the transit became a global sensation.28 Such policies are plainly inconsistent with the plain terms of UNCLOS.

Zoning the Zone

In other circumstances, coastal states abuse their pollution-control jurisdiction by trying to use it as a mechanism for extracting prior notification or imposing coastal-state 

consent requirements for foreign-flagged ships.29 One of the principal tools emerging for 

tightening coastal-state control over the EEZ is intra-EEZ zoning. 

These efforts, often cloaked in environmental idiom, are troublesome. Even as they attempt to push the boundaries of environmental protection, they are also inconsistent 

with the Rio Declaration, one of five agreements adopted at the 1992 “Earth Summit” 
military activities in the eez 81

in Rio de Janeiro. Although the Rio Declaration is a nonbinding instrument of international law, it is regarded as an expression of important principles concerning international environmental protection and sustainable development. Principle 12 of Rio says, 

“Unilateral actions to deal with environmental challenges outside the jurisdiction of the 

importing country should be avoided. Environmental measures addressing transboundary or global environmental problems should, as far as possible, be based on an international consensus.”30 Thus, states asserting excessive environmental prescription and 

enforcement authority in the EEZ may be viewed not as champions at the forefront of 

a vanguard movement but as willful actors, proceeding in a direction contrary to basic 

precepts of international environmental law. Governments risk overreaching and creating a backlash against legitimate and consensus-based efforts to achieve stronger marine 

environmental protection. 

Sovereign Immunity

Additionally, coastal-state environmental regulations in the EEZ should have no effect 

on naval operations, as UNCLOS provides comprehensive immunity for warships and 

other public vessels. Article 95 underlies the principle of complete immunity in its first 

sentence, which corresponds with article 8(1) of the 1958 High Seas Convention.31 Article 96 of UNCLOS, setting forth the broad categories of exempt vessels, is derived from 

article 9 of the High Seas Convention and is consistent with article 3 of the Chicago 

Convention on Civil Aviation of 1944.32 Notwithstanding the enjoyment of sovereign 

immunity, the flag states of registry for warships and other public vessels and state 

aircraft have obligations to ensure that their platforms act in a manner that is consistent 

with UNCLOS.33 The article is subject to two qualifications that ensure the vessels and 

aircraft are not deterred in mission accomplishment—the operational capabilities of the 

platforms cannot be impaired, and compliance with the rules of UNCLOS is required 

only insofar as is “reasonable and practicable.” Similarly, article 236 states:

The provisions of this Convention regarding the protection and preservation of the marine 

environment do not apply to any warship, naval auxiliary, other vessels or aircraft owned 

or operated by a state and used, for the time being, only on government noncommercial 

service. However, each state shall ensure, by adoption of appropriate measures not impairing operations or operational capabilities of such vessels or aircraft owned or operated 

by it, that such vessels or aircraft act in a manner consistent, so far as is reasonable and 

practicable, with this Convention. 

Despite the provisions of articles 95, 96, and 236, a handful of coastal states are adding environmental protection to their quiver of arguments for trying to deny foreign 

military vessels access to their EEZs. China is one of the leading offenders in this regard, 

suggesting that concern for the environment is one of the bases for impeding the transit 

of sovereign immune vessels.34
82 china maritime studies

Due Regard

The term “due regard” appears again and again in UNCLOS.35 During the drafting of 

the convention, the term “reasonable regard” evolved first to “due consideration” before 

settling at “due regard.”36 The U.S. Navy views the “reasonable regard” and “due regard” 

standards as essentially identical. The Navy adds fidelity to the definition, asserting that 

the “reasonable regard” of the High Seas Convention and the “due regard” of the Law of 

the Sea Convention “are one and the same and require any using nation to be cognizant 

of the interests of others in using a high seas area, and to abstain from nonessential, 

exclusive uses which substantially interfere with the exercise of other nations’ high seas 

freedoms.”37

Naval forces still are required to exercise due regard in the EEZ, just as coastal states have 

a due-regard requirement. There are instances when a warship inside the EEZ might 

choose not to conduct certain operations because of due regard for the natural environment. For example, a gunnery exercise intentionally targeting a whale migration would 

display a lack of due regard for economic and environmental interests of the coastal 

state. Similarly, a proposed weapons exercise in close proximity to an active offshore 

oil platform also could be expected to violate the principle of due regard.38 But as Raul 

Pedrozo has said, “these situations are the exception, not the rule, and cannot be dictated 

unilaterally by the coastal state.”39

The U.S. Navy, for example, conducts naval maneuvers using low- and midfrequency 

sonar systems around the world. In order to mitigate any potential impact from these 

exercises, the Navy voluntarily applies marine-mammal mitigation measures that were 

developed by the Office of the Chief of Naval Operations and that take into account 

operational imperatives, as well as the best available science on the effect of sonar on 

marine mammals. In January 2007, the Navy instituted a series of twenty-nine mitigation measures to avoid the possibility of interfering with marine mammals.40 Scientific 

research now suggests that there is no evidence that the Navy’s sonar use, when protective measures are applied, affects either marine mammals or fish.41 The U.S. Navy’s 

practices have been subjected to litigation and ultimately to review by the U.S. Supreme 

Court. In the case, Winter v. Natural Resources Defense Council, the NRDC sued the Secretary of the Navy over sonar use during military maneuvers and exercises. The Supreme 

Court found that in forty years of sonar training there was no documented episode of 

harm to marine mammals under American jurisdiction caused by the use of sonar.42

Article 2 of the High Seas Convention employs the phrase “reasonable regard” as a rule 

applicable to the exercise of high-seas freedom, which “shall be exercised by all States 

with reasonable regard to the interests of other States in their exercise of the freedom 

of the high seas.” The 1958 High Seas Convention also uses the term “due regard” in 
military activities in the eez 83

article 26, requiring the coastal state to pay “due regard” to cables and pipelines already 

positioned on the seabed. The term is also reflected in article 24 of the Territorial Sea 

Convention and article 3 of the Continental Shelf Convention.43 The International 

Court of Justice has determined that the provision of “reasonable regard” is declaratory 

of customary international law.44

Article 58(3) of UNCLOS provides that in exercising their rights and performing their 

duties in the EEZ, states have complementary obligations to exercise due regard for the 

rights and duties of the coastal state. Specifically, article 58(3) provides, “In exercising 

their rights and performing their duties under this Convention in the exclusive economic zone, States shall have due regard to the rights and duties of the coastal State and shall 

comply with the laws and regulations adopted by the coastal State in accordance with the 

provisions of this Convention and other rules of international law in so far as they are 

not incompatible with this Part.”

Article 56(2), in turn, requires the coastal state to have due regard to the rights and 

duties of other states operating in the EEZ. That article sets forth the complementary 

standard: “In exercising its rights and performing its duties under this Convention in 

the exclusive economic zone, the coastal State shall have due regard to the rights and 

duties of other States and shall act in a manner compatible with the provisions of this 

Convention.”

Furthermore, volume 3 of the authoritative University of Virginia Commentary on 

UNCLOS explains the “due regard” requirement as a

qualification of the rights of States in exercising freedoms of the high seas. The standard 

“due regard” requires all States, in exercising their high seas freedoms, to be aware of and 

consider the interests of other States in using the high seas. As the [International Law 

Commission] stated in its Commentary in 1956, “States are bound to refrain from any acts 

that might adversely affect the use of the high seas by nationals of other States.” The construction in paragraph 2 recognized that all States have the right to exercise high seas freedoms, and balances consideration for the rights and interests of all States in this regard.45

In sum, in the EEZ, coastal states shall have due regard for the rights and freedoms of 

the other states, and in turn other states shall have due regard for the rights and duties 

of the coastal state. In the exercise of these rights and in performing their duties, states 

conducting military activities in a coastal state’s EEZ shall observe “due regard” for the 

rights and duties of the coastal state. Moreover, because of the protections provided 

by sovereign immunity, the flag state, not the coastal state, has the sole right to enforce 

upon its naval vessels the obligation to exercise “due regard.”46
84 china maritime studies

The “Dueling Due Regards”

The existence of “dueling due regards” that apply to the exercise of concurrent rights, 

duties, and jurisdiction demonstrates that UNCLOS reflects a functional rather than an 

exclusive model. Articles 58(3), 87(2), and 56(2) reflect identical language. “Due regard” 

consists of two elements: first, an awareness of and consideration for other states’ interests, and second, a weighting of those interests or sources of authority.47 Since “freedom” 

is a broader genus than “right,” freedom of navigation may logically be said to trump 

some coastal-state rights.48

In light of this analysis, the definition proposed by Professor George K. Walker, of the 

Law of the Sea Committee of the American Branch of the International Law Association, 

is the best restatement of the term “due regard.” 

“Due regard” as used in the 1982 LOS Convention, art. 87, is a qualification of the rights 

of states in exercising the freedoms of the high seas. “Due regard” requires all states, in 

exercising their high seas freedoms, to be aware of and consider the interests of other states 

in using the high seas, and to refrain from activities that interfere with the exercise by other 

states of the freedom of the high seas. States are bound to refrain from any acts that might 

adversely affect the use of the high seas by nationals of other states. Article 87 recognizes 

that all states have the right to exercise high seas freedoms, and balances consideration for 

the rights and interests of all states in this regard.49

The coastal state is in an equal position vis-à-vis the flag state in this regard only in 

cases in which it is weighing under article 234 the right of coastal-state regulation over 

foreign-flagged shipping in ice-covered areas. Article 234 departs from normal practice, 

or the typical rules that apply in the EEZ, and permits a heightened level of authority 

for the coastal state. In ice-covered areas of the EEZ coastal states may adopt and enforce 

nondiscriminatory laws and regulations for preventing, reducing, and controlling marine pollution from ships. In this case, such laws “shall have due regard to navigation and 

the protection and preservation of the marine environment.”50

The terms also have application in the law of international aviation and the law of naval 

warfare. The Chicago Convention requires state parties to ensure that their state aircraft 

exercise “due regard” for the navigational safety of civil aircraft.51 Within the context of 

the law of naval warfare, “due regard” is used as a principle for regulating belligerent 

rights and duties.52

Chinese scholars suggest the “two due regards” do not automatically cancel the other and 

that they should be read as providing the coastal state with the superior right.53 Since 

coastal states enjoy sovereign rights of ownership, exploration, exploitation, conservation, and management of natural resources, jurisdiction over protection of the marine 

environment, control of access to the zone for marine environmental research, and the 
military activities in the eez 85

establishment of artificial islands and installations, Chinese international lawyers argue 

that the actions of other states are subordinate to these rights.

The claim is that the sovereign rights of the coastal state in the economic sphere create a higher right generally for the coastal state vis-à-vis all other activities in the EEZ. 

Specifically, these scholars assert that the coastal state has “indisputable” superiority 

when conflicts arise between the rights of the coastal state and those of other states.54

A more sophisticated, and correct, interpretation, however, is that the sovereign rights 

and jurisdiction of the coastal state in the zone are superior only in matters pertaining 

to its exclusive economic status and its sovereign rights in the zone. The rights of the 

international community are superior in matters pertaining to freedom of navigation 

and overflight and “other lawful uses” of the area. The coastal state indeed has a superior 

right, but only to those competencies specifically cut from the high seas and granted by 

UNCLOS to the coastal nation. 

Due Regard Is a Procedural Obligation

Perhaps more important, the term “due regard” is a procedural right. It does not create 

any substantive new legal right—it requires only that states observe the legitimate and 

existing rights of other parties. Otherwise, the term simply becomes an empty vessel, 

requiring the international community to observe as “due regard” any rule imposed by 

the coastal state, no matter how unreasonable. 

Warships and military aircraft operating in China’s EEZ are exercising “due regard” so 

long as they do not attempt to diminish China’s exclusive rights and jurisdiction to its 

oceanic living and nonliving resources, such as intentionally interfering with a fishing 

vessel or hazarding an oil platform. In evaluating what constitutes an actual interference 

with the coastal state’s exploitation of the resources of the EEZ, one has to apply a test of 

reasonableness. For example, it would not be reasonable to suggest that a foreign-flagged 

submarine transiting submerged through a coastal state’s EEZ might injure marine 

mammals and is therefore failing to exercise “due regard” for the coastal state’s interests in the living resources and as a result is not permitted to pass without coastal-state 

permission. 

It is important not to become carried away with theoretical effects of foreign-flagged 

vessels and aircraft on the resources of the EEZ, effects that are so remotely insignificant that their proximate connection to causative fact becomes extremely doubtful. 

The inquiry becomes progressively more hopeless in proportion to the degree to which 

the coastal state’s claim of enjoyment and exploitation of the living and nonliving resources of the EEZ hinges on the “horseshoe nail” or “butterfly” effects of foreign military activities.55 Thus, an occurrence that is possible but likely to be irrelevant, such 
86 china maritime studies

as a foreign-flagged submarine striking a marine mammal in a coastal state’s EEZ, does 

not justify coastal-state regulations that trump age-old high-seas freedoms. On the other 

hand, it is equally specious for the coastal state to posit that foreign military activities in 

the EEZ risk something that is at once highly portentous but nearly impossible. For example, the fact that a foreign-flagged nuclear submarine transiting the EEZ might be an 

instrument of nuclear war—and thereby invite nuclear retaliation that would devastate 

marine resources—would not justify coastal-state regulation of such submarines. 

Conclusion

Environmental aspects of creeping coastal-state jurisdiction are being misapplied in 

order to obtain greater authority over foreign-flagged offshore shipping. Most coastal 

states succumb to the temptation to attempt to regulate offshore foreign-flagged shipping, a trend that threatens to unravel the package deal of the 1982 convention. The 

United States has often taken a relatively cautious approach in asserting environmental 

jurisdiction over foreign-flagged vessels, doing so usually only as a condition of port 

entry. The United States is inclined to rely on conditions of port entry and port-state 

control measures to protect the marine environment rather than attempting to assert 

coastal-state jurisdiction in waters beyond the territorial sea, because it seeks to strengthen the UNCLOS framework.

Furthermore, a feature of U.S. marine environmental laws, the “international law savings 

clause,” protects the rights and freedom of navigation of foreign-flagged vessels, notwithstanding other provisions of the statute that might otherwise impair those rights. 

Foreign-flagged vessels transport more than 90 percent of international commercial 

freight entering and departing ports of the United States.56 Foreign-controlled shipping 

accounts for 95 percent of passenger ships and 75 percent of cargo ships operating in 

U.S. waters.57 As one of the beneficiaries of a globalized economy, the United States understands that it needs foreign-flagged shipping, and its laws accommodate such ships in 

accordance with UNCLOS. Typically, American law exempts foreign-flagged vessels from 

regulatory requirements that interfere with innocent passage in the territorial sea, transit 

passage through the Bering Strait, or the exercise of freedom of navigation and other 

high-seas freedoms throughout the exclusive economic zone. In these ways, the United 

States acts responsibly to respect the rights of all states at sea, while also undertaking its 

obligations to protect and preserve the marine environment.
military activities in the eez 87

1. The Law of the Sea: Official Texts of the United 

Nations Convention on the Law of the Sea of 10 

December 1982 and of the Agreement relating 

to the Implementation of Part IX of the United 

Nations Convention on the Law of the Sea of 10 

December 1982 (New York: United Nations, 1997) 

[hereafter UNCLOS], available at www.un.org/.

2. Article 1, for example, sets forth definitions of 

pollution of the marine environment and dumping. States have a general obligation to protect 

and preserve the marine environment and prevent marine pollution on the high seas, the EEZ, 

and the territorial sea.

3. D. P. O’Connell, The International Law of the Sea,

ed. I. A. Shearer (Oxford, U.K.: Clarendon, 1982), 

vol. 1, p. 194.

4. UNCLOS, art. 194(5).

5. Ibid., art. 211(1). 

6. The main IMO treaty in this area is the 1973 International Convention for Prevention of Pollution 

from Ships and the Protocol of 1978 relating to International Convention for Prevention of Pollution 

from Ships (MARPOL 73/78). The convention and 

protocol are available at SEDAC: Socioeconomic 

Data and Applications Center, sedac.ciesin.org/.

7. UNCLOS, art. 211(6)(a). Article 234 created special dispensation for coastal states to prescribe and 

enforce certain regulations in “ice-covered areas,” a 

fairly narrow exception to the general rules.

8. Agustín Blanco-Bazán, Senior Deputy Director/

Head Legal Office, Legal Affairs and External 

Relations Division, IMO (paper presented at 

the seminar on current maritime issues and the 

work of the International Maritime Organization, Twenty-third Annual Seminar of the Center 

for Ocean Law and Policy, University of Virginia 

School of Law, 6–9 January 2000), available at 

www.imo.org/.

9. UNCLOS, art. 211(6). 

10. Ibid.

11. O’Connell, International Law of the Sea, vol. 1, p. 

194.

12. UNCLOS, art. 220(2). The “reasonable suspicion” 

standard is articulated in article 206, and it is a 

useful reminder that states may not act unreasonably in their suspicions: “When States have 

reasonable grounds for believing that planned 

activities under their jurisdiction or control 

may cause substantial pollution of or significant 

and harmful changes to the marine environment, they shall, as far as practicable, assess the 

potential effects of such activities on the marine 

environment and shall communicate reports of 

the results of such assessments.”

13. Arctic Waters Pollution Prevention Act, R.S. 

(1985), c. A-12, available at laws.justice.gc.ca/.

14. UNCLOS, arts. 220(2) and (6).

15. Ibid., arts. 292, 220(7), and 226(1)(b).

16. Ibid., arts. 94(3), (4), and (5).

17. Implications of the United Nations Convention on 

the Law of the Sea for the International Maritime 

Organization, IMO Doc. LEG/MISC.6, 10 September 2008, p. 16.

18. Guidelines to Assist Flag States in the Implementation of IMO Instruments, IMO Res. A.847(2), 27 

November 1997. 

19. The instruments include SOLAS 1974, MARPOL 

73/78, Load Lines, and STCW 1978.

20. Self-assessment of Flag State Performance, IMO 

Res. A.912(22), 22 January 2002 (superseding 

and revoking resolution A.881[21]).

21. Measures to Further Strengthen Flag State Implementation, IMO Res. A.914(22), 22 January 2002. 

22. Voluntary IMO Member State Audit Scheme, IMO 

Res. A.946(23). See also Framework and Procedures for the Voluntary IMO Member State Audit 

Scheme, IMO Res. A.974(24). The IMO Assembly 

also adopted a Code for the Implementation of 

Mandatory IMO Instruments, which provides the 

standard for audits.

23. For an excellent treatment of the balance of 

law between port and flag states, see chapter 7 

of Louis B. Sohn and John E. Noyes, Cases and 

Materials on the Law of the Sea (Ardsley, N.Y.: 

Transnational, 2004), p. 357 et seq.

24. See, e.g., A. R. Thomas and James C. Duncan, 

Annotated Supplement to the Commander’s 

Handbook on the Law of Naval Operations, International Law Studies 73 (Newport, R.I.: Naval 

War College, 1999), p. 115, which states: “Because 

entering internal waters is legally equivalent to 

entering the land territory of another nation, 

that nation’s permission is required.” See also 

UNCLOS, art. 25: “In the case of ships proceeding to internal waters, the coastal State . . . has the 

right to [set] conditions to which admission of 

those ships . . . is subject.” Cf. art. 9, which limits 

a coastal state’s authority over vessels merely 

exercising innocent passage in the territorial sea 

without the intention to enter the coastal state’s 

internal waters.

25. See, e.g., France’s Decree 185/85 of February 1985, which regulates passage of foreign 

ships through territorial waters, including a 

Notes
88 china maritime studies

requirement that tankers, nuclear-powered ships, 

and ships with nuclear cargoes use designated 

sea-lanes or traffic separation schemes.

26. See, e.g., Jon M. Van Dyke, “The Legal Regime 

Governing Sea Transport of Ultra-hazardous 

Radioactive Materials,” Ocean Development and 

International Law 33 (2002), pp. 78–80.

27. Ibid. 

28. Ibid. 

29. John Negroponte, “Analytical Summary,” National Security Council staff, Washington, D.C., 

n.d., in Foreign Relations, 1969–1976, vol. E-1, 

Documents on Global Issues, 1969–1972, available 

at www.state.gov/. 

30. Rio Declaration on Environment and Development, UN Doc. A/CONF.151/26 (vol. I), 31 ILM 

874 (1992), available at www.unep.org/.

31. Convention on the High Seas Done at Geneva on 

29 April 1958, available at untreaty.un.org/.

32. Convention on Civil Aviation, Doc. 7300/9 (9th 

ed.), 2006, available at www.icao.int/.

33. Myron H. Nordquist, ed. in chief, Satya N. 

Nandan and Shabtai Rosenne, gen. eds., United 

Nations Convention on the Law of the Sea 1982: 

A Commentary (Dordrecht, Neth.: Martinus 

Nijhoff, 1991), vol. 4 [hereafter Commentary, vol. 

4], ¶ 236.6(b), p. 421. 

34. Raul Pedrozo, “Close Encounters at Sea: The 

USNS Impeccable Incident,” Naval War College 

Review 62, no. 3 (Summer 2009), p. 101.

35. UNCLOS, arts. 27(4), 39(3)(a), 56(2), 58(3), 

60(3), 66(3)(a), 79(5), 87(2), 142(1), 148, 161(4), 

162(2)(d), 163(2), 167(2), 234, and 267, as well as 

represented in app. II, art. 2(1), and app. IV, arts. 

5(1) and (2).

36. Myron H. Nordquist, ed. in chief, Satya N. 

Nandan and Shabtai Rosenne, gen. eds., United 

Nations Convention on the Law of the Sea 1982: 

A Commentary (Herndon, Va.: Brill, 1993), vol. 3 

[hereafter Commentary, vol. 3], ¶ 87.8, p. 80. See 

also R. R. Churchill and A. V. Lowe, The Law of 

the Sea, 3rd ed. (Manchester, U.K.: Manchester 

Univ. Press, 1999), p. 206. 

37. Thomas and Duncan, Annotated Supplement to 

the Commander’s Handbook on the Law of Naval 

Operations, p. 131 note 65.

38. Pedrozo, “Close Encounters at Sea,” p. 104.

39. Ibid.

40. Office of the Assistant Secretary of Defense 

(Public Affairs), “Navy Granted Authority to Use 

Sonar in Training off of California,” News Release 0041-07, 16 January 2008, available at www 

.defenselink.mil/; Kristen Noel, “Navy Invests in 

Protecting Marine Mammals,” American Forces 

Press Service, 20 December 2007, available at 

www.navy.mil/.

41. Pedrozo, “Close Encounters at Sea,” p. 104.

42. Secretary of the Navy Winter v. Natural Resources 

Defense Council, 555 U.S. 1, 23 (2008).

43. Convention on the Territorial Sea and the Contiguous Zone Done at Geneva on 29 April 1958,

and Convention on the Continental Shelf Done 

at Geneva on 29 April 1958, both available at 

untreaty.un.org/.

44. Fisheries Jurisdiction Case (U.K. v. Iceland), 1974 

ICJ 3, 22, 29. 

45. Commentary, vol. 3, ¶ 87.9(1), p. 86. 

46. U.S. Commentary on the Law of the Sea Convention, Sen. Treaty Doc. 103-39, p. 24. See also J. 

Ashley Roach and Robert W. Smith, United States 

Responses to Excessive Maritime Claims, 2nd ed. 

(The Hague: Martinus Nijhoff, 1996), p. 407. 

47. George K. Walker, “Defining Terms in the 1982 

Law of the Sea Convention IV: The Last Round 

of Definitions Proposed by the International Law 

Association (American Branch) Law of the Sea 

Committee,” California Western International 

Law Journal 36, no. 1 (Fall 2005), p. 174. 

48. Sir Robert Jennings and Sir Arthur Watts, eds., 

Oppenheim’s International Law (London: Longman, 1992), vol. 1, pp. 802–803.

49. Walker, “Defining Terms in the 1982 Law of the 

Sea Convention IV,” p. 174. 

50. Commentary, vol. 4, ¶ 234.1 and 234.5(a) and (e), 

pp. 394–97. 

51. Convention on Civil Aviation, art. 3(d). 

52. Louise Doswald-Beck, ed., San Remo Manual on 

International Law Applicable to Armed Conflicts 

at Sea (Cambridge, U.K.: Cambridge Univ. Press, 

1995), arts. 12, 34, 36, 88, and 106(c).

53. Ren Xiaofeng and Cheng Xizhong, “A Chinese 

Perspective,” Marine Policy 29 (2005), pp. 139, 145.

54. Ibid., p. 145.

55. Philip E. Tetlock and Richard Ned Lebow, “Poking 

Counterfactual Holes in Covering Laws: Cognitive Styles and Historical Reasoning,” American 

Political Science Review 95 (December 2001), p. 829. 

56. U.S. House, Vessel Operations under Flags of Convenience and National Security Implications, statement of Rear Adm. Paul J. Pluta, USCG, before 

the Armed Services Committee, 108th Cong., 1st 

sess., 13 June 2003.

57. “Origins of the Port State Control Program, U.S. 

Coast Guard,” United States Coast Guard, www 

.uscg.mil/.
The advancement of science and technology requires adjustments in state practices regarding the appropriate interpretation of provisions of the United Nations 

Convention on the Law of the Sea (UNCLOS) in order to address current inadequacies in the international framework. With today’s ever-changing circumstances, more 

survey activities conducted in the exclusive economic zone (EEZ) should be included in 

the jurisdictional scope of coastal-state authority to regulate marine scientific research 

(MSR) under UNCLOS article 56. Additionally, researching states should be expected 

to implement faithfully the coastal state’s MSR regime, and coastal states should make 

an effort to facilitate research and survey activities that have peaceful purposes. Moreover, the development of practical procedures and guidelines for research and surveys 

in the EEZ may be a useful development to avoid the potential for conflict and to foster 

cooperation. 

The UNCLOS Regime 

UNCLOS, also called “the Ocean Constitution,” was concluded in 1982 and formally entered into force in 1994.1

 It provides a general regime, set forth dominantly in Part XIII 

of UNCLOS, articles 238 through 265, to regulate the conduct of MSR activities in the 

world’s oceans. Within this regime all states, irrespective of their geographical location, 

and competent international research organizations have the right to conduct MSR subject to the rights and duties of other states (art. 238). States are obliged to promote and 

facilitate the development and conduct of MSR (art. 239); MSR is to be conducted for 

peaceful purposes only, with appropriate scientific methods compatible with UNCLOS, 

is not to interfere unjustifiably with other legitimate uses of the sea, and is to be in accordance with national regulations adopted in conformity with UNCLOS, including those 

for the protection and preservation of the marine environment (art. 240). MSR activities 

shall not constitute the legal basis for any claim to any part of the marine environment 

or its resources (art. 241).

Xue Guifang (Julia)

Issues and Prospects

CHAPTER SEVEN

Surveys and Research Activities in the EEZ 
90 china maritime studies

UNCLOS also sets forth particular provisions for MSR conducted in various maritime 

zones, including the territorial sea (art. 245), international straits (art. 40), and archipelagic waters (art. 54). UNCLOS further provides that a coastal state can regulate MSR 

and hydrographic surveys in its territorial seas (art. 21[1][g]). Access and the conditions 

of access to the territorial sea for these activities are under the exclusive control of the 

coastal state (art. 245); during transit passage of international straits and archipelagic 

sea-lanes MSR and hydrographic survey ships “may not carry out research or survey 

activity without the prior authorization of the States bordering the straits” (arts. 54, 40, 

respectively). MSR may be carried out on the high seas and in the Area (the seabed of 

the high seas), but exclusively for peaceful purposes.2

The EEZ regime is the most creative part of UNCLOS, and much attention is given by 

coastal states to their sovereign rights and jurisdiction in it. Coastal states are granted 

sovereign rights over resource-related matters and exclusive jurisdiction over artificial islands, MSR, and the protection of the marine environment out to two hundred nautical 

miles (art. 56). Part XIII of UNCLOS, plus some provisions of Part V, provides a regime 

for MSR in the EEZ and on the continental shelf (arts. 246–53). Coastal states may at 

their discretion decide whether to grant or withhold their consent for MSR activities in 

their EEZs. Coastal states enjoy the right to formulate and implement relevant national 

laws and regulations and the right to exercise supervision over or to board and monitor any MSR platforms in their EEZs and on the continental shelf (art. 246). Access for 

MSR by other states or competent international organizations to a coastal state’s EEZ 

and continental shelf is subject to the consent of that state. Coastal states are normally 

required to grant consent for MSR projects carried out in accordance with the provisions of UNCLOS in order to increase scientific knowledge of the marine environment 

for the benefit of all humankind. 

There are five situations when the coastal state may at its discretion withhold consent to 

certain MSR activities. Consent from the coastal states may be denied if the MSR is of 

direct significance for resource exploration or exploitation, whether living or nonliving; 

involves drilling into the continental shelf, the use of explosives, or the introduction of 

harmful substances into the marine environment; or involves the construction, operation, or use of artificial islands, installations, or structures (art. 246). Consent may also 

be withheld if inaccurate information regarding the nature and objectives of the project 

was supplied to the coastal state or if the researching state or international organization 

has outstanding obligations to the coastal state from a prior research project (art. 246). 

UNCLOS thus emphasizes the exclusive jurisdiction of the coastal state over MSR in the 

EEZ and on the continental shelf. 

The consent of the coastal state may be either expressed or implied. Four months after 

the request by an international organization of which the coastal state is a member (art. 
military activities in the eez 91

247), or six months after a request by a foreign state (art. 252), if no objection is lodged 

by the coastal state concerned, consent is implied. When conducting MSR in a coastal 

state’s EEZ, the foreign state has the obligation to provide information to the coastal 

state (art. 248), to comply with certain conditions (art. 249), and to be responsible and 

liable for any damage resulting from MSR activities (art. 263). 

It is noted that “survey activities” are primarily dealt with in UNCLOS Parts II, III, and 

XI and Annex III, rather than in Part XIII. This may be taken as an indication that survey activities do not fall under the MSR regime, although as discussed above it is clear 

that a coastal state’s permission is required for both MSR and survey activities in the territorial sea, straits used for international navigation, and archipelagic sea-lanes passage. 

Nevertheless, views differ concerning whether hydrographic surveys in the EEZ need the 

prior authorization of the coastal state. Uncertainties and different interpretations also 

arise concerning whether the MSR regime applies to military surveys. Some believe that 

not all marine data-collection activities are regulated by the MSR regime in Part XIII; 

others oppose that view.3

Contentious Issues

It is obvious that international law encourages the performance of MSR in order to 

enrich knowledge of the world oceans, a right granted to all states by the provisions and 

requirements of UNCLOS.4

 However, the debates during the third United Nations Conference on the Law of the Sea (UNCLOS III) failed to provide agreement on a definition 

of the term “marine scientific research.” Even today, UNCLOS does not provide a legal 

definition regarding that term or other marine data-collecting activities, such as surveys, 

which has resulted in divergent views and conflicting positions regarding a coastal state’s 

jurisdictional control over research and survey activities in the EEZ. Clarification is provided below for these terms and the various aspects of their application.

In general, “marine scientific research” refers to any activity undertaken in the ocean and 

coastal waters with the purpose of expanding scientific knowledge of the marine environment and its processes.5

 MSR activities include physical and chemical oceanography, marine biology and chemistry, fisheries research, scientific ocean drilling and coring, geological and geophysical surveying, and any other activity having a scientific purpose. MSR 

is of great significance as an important component of contemporary natural science, and 

it plays a key role in supporting the long-term use of marine resources and sustainable 

ocean development. The results of MSR are generally made publicly available. 

MSR has been an important trigger for legal development, supporting states in advancing their political and economic interests in the ocean domain. Emerging issues have 

brought forth legal implications of the MSR regime in recent years. Such issues relate to 
92 china maritime studies

the implementation of some provisions of Part XIII, such as the confusion as to which 

marine data-collection activities come within its scope. UNCLOS gives coastal states 

jurisdiction to regulate MSR in their EEZs but fails to provide specific provisions on 

jurisdiction over survey activities.

Survey activities may be further categorized into two kinds, hydrographic and military.6

The former were mostly left untreated as MSR, but developments in recent years have 

complicated matters. Hydrographic surveys are activities with the purpose of collecting 

data for the production of navigational charts to support safety of navigation. Data collected from hydrographic survey activities may include the depth of water, configuration 

and nature of the natural bottom, directions and force of currents, heights and times of 

tides and water stages, and hazards to navigation.7

Military surveys are generally activities undertaken in the ocean and coastal waters 

involving classified and unclassified marine data collection conducted by military 

vessels for military purposes. Military surveys can include collection of oceanographic, 

hydrographic, marine geological, geophysical, chemical, biological, acoustic, and related 

data that may not be normally available to the public. There is hot debate over the term 

“military survey” and its legal implications. However, the term is not found in either 

international or national law. Some believe that military surveys fundamentally bear the 

same nature as MSR and should be regulated by the MSR regime of UNCLOS. Others 

argue that military surveys should not be regarded as MSR, since they are conducted for 

military, not scientific, purposes.8

 Disagreement regarding military surveys conducted in 

the EEZ of a coastal state is wide. 

Again, although UNCLOS provides some treatment of surveys, it does not define the 

term. Because there are no universally accepted, unambiguous definitions of MSR or 

surveys that take into account the nature of these activities, their operational methods, and means used or that establish objective criteria to determine the purposes and 

motivations for undertaking them, many issues have arisen over how to put the relevant 

provisions of UNCLOS into practice. These issues relate to the application of the regime, 

particularly in the EEZ. There has been heated debate about the relationship between 

MSR and hydrographic surveys, including surveys conducted by military vessels. The 

crucial part of the debate concerns whether the latter conducted in the EEZ should be 

treated as MSR and put under the jurisdiction of the coastal state. 

The root cause of the debate is related to differing perspectives on the EEZ. Two trends 

are noticeable. One is the territorialization of the EEZ, as represented by the developing 

coastal states. These states appreciate the importance of the ocean to their national security and the sustainable development of their social and economic institutions. Limited 

by such factors as technology, human resources, and national strength, their capacities to 
military activities in the eez 93

undertake research and surveys are not on par with those of developed states. They cherish the waters under their jurisdiction and hope to become able to explore and exploit 

them in the future. These states have expressed concern that their interests are not sufficiently taken into consideration during the planning and execution of research projects 

and are suspicious that they will not benefit from the research results. They tend to seek 

stricter control over the research and survey activities in their EEZs than international 

law currently grants. 

Not surprisingly, another trend is the internationalization of the EEZ by developed costal states. Most MSR projects are undertaken by a relatively small number of developed 

states, in many cases off the coasts of developing states. However, since the EEZ was originally high seas, some states find it difficult to accept that MSR is now within the scope 

of coastal-state jurisdiction. These states are reluctant to admit the legal status of the 

EEZ and even call it “international waters.” They hold the view that the residual rights of 

high-sea freedoms are applicable to the EEZ, except for resource-related activities. These 

states rely on the incorporation in the EEZ by UNCLOS article 58(2) of the provisions 

of articles 88–115, which relate to high-seas freedoms. As researching states, they refuse 

to abide by the conditions established by coastal states.9

 Some of their research and 

survey activities may also conflict with coastal states’ national interests. Friction can easily lead to conflict and “lose-lose” situations. A balance needs to be struck between the 

proponents of maximum freedom for research and surveys and maximum coastal-state 

control over the same activities. 

Practical problems arise from the distinction between research and surveys involving 

the determination of the intended use of the data collected. Based on UNCLOS Part 

XIII, some argue that the methods of the data collected and their motives or intended use

constitute the primary differences among MSR, hydrographic surveys, and military 

surveys and thus determine whether a particular marine data-collection activity is MSR 

and what therefore are the applicable rules. This presents difficult questions, such as how 

the motives for MSR, hydrographic surveys, or military surveys are to be determined. 

What constitutes a “scientific purpose” or a “military purpose,” and who determines 

that? When does the gathering of information to “make navigational charts and [ensure] 

safety of navigation” become a military survey and not a hydrographic survey? These 

questions are especially difficult to answer in a general climate of mistrust and suspicion. 

Ultimately, it is difficult to distinguish hydrographic and military surveys from MSR 

as the methods of data collection are often the same, regardless of the data type and 

intended use.10

In many cases, the same data collected from the marine environment may be used for 

more than one purpose.11 For instance, the data from a hydrographic survey can be applied to much wider uses than making navigational charts for safety of navigation. Some 
94 china maritime studies

are also used for the monitoring and forecasting of ocean-state estimates and weather 

and climate prediction. Some are used for military purposes. Others are used for the 

exploration and exploitation of living or nonliving natural resources. In these cases, 

hydrographic data collected in an EEZ have clear economic value to a coastal state and 

should therefore be subject to the coastal state’s MSR laws.12

Along with the advancement of technology in recent decades, tremendous capabilities 

have been employed to collect large amounts of marine data using various instruments 

deployed from ships, such as balloons, profiling floats, moored and drifting buoys, 

remotely operated vehicles, and offshore or near-offshore fixed platforms. The data for 

MSR can also be collected by satellite or by equipment on civilian or military aircraft or 

ships. More and more research projects use remote-sensing technologies on platforms 

located outside the jurisdictional waters of coastal states. The coastal state can find attempting to distinguish among hydrographic surveys, military surveys, and MSR in its 

EEZ very frustrating. This state of affairs may eventually lead to a collapse of the present 

MSR regime in the EEZ. 

General State Practice and the Chinese Approach 

The Intergovernmental Oceanographic Commission (IOC) of the UN Educational, 

Scientific and Cultural Organization (UNESCO), an organization that deals with the 

implementation of the MSR regime through its Advisory Body of Experts on the Law 

of the Sea (ABE-LOS), has produced several documents in recent years reviewing the 

general practices of its member states with respect to MSR.13

According to these reports, considerable ambiguities exist in the interpretation and 

implementation of UNCLOS provisions regarding research and survey activities in the 

EEZs of coastal states.14 Some countries have yet to enact national legislation to prescribe 

the application procedures for foreign or international organizations to conduct MSR, 

not to mention the publication and management of available research data so as to 

advance marine science and marine technology.15

Nonetheless, as far as implementation is concerned, state practice in general is consistent 

with the UNCLOS regime on MSR. Many states have set up standard procedures for foreignrelated MSR application. For example, Australia adopted the 1996 Foreign Research 

Vessel Guidelines, which authorize the Department of Foreign Affairs and Trade to determine whether a vessel enjoys public vessel status.16 The Australian guidelines provide 

detailed information in support of a request by a foreign research vessel to conduct marine scientific research within the territorial sea, exclusive economic zone, fishing zone, 

and on the continental shelf (including research involving a port visit). The department 
military activities in the eez 95

normally grants public-vessel status to foreign research vessels entering Australian ports. 

In addition, Australia also has well-established procedures for military vessels.

To implement the UNCLOS regime on MSR and to regulate research and survey activities under its jurisdictional waters, China too has adopted a series of national laws and 

regulations. China maintains records of coastal research and oceanography surveys, 

most of them performed in its territorial seas. Deep-ocean surveys began only in the 

early 1980s, as a result of the initiation of multiship programs.17 In recent years, China 

has made further efforts to develop marine sciences and technologies and has amended 

its law and policy to promote the advancement of research and surveys.

China signed UNCLOS on 10 December 1982 and ratified it on 15 May 1996.18 China 

implemented its regimes by declaring maritime zones and enacting or revising national 

maritime laws in accordance with UNCLOS provisions. In the field of MSR management, the Law of the People’s Republic of China (PRC) on the Exclusive Economic Zone 

and the Continental Shelf enacted in 1998 (known as the 1998 EEZ/CS Law) has been 

the most important legal document setting up the basic stance and fundamental regulations of the Chinese government in this area.19 With its sixteen articles the 1998 EEZ/CS 

Law not only ensures China’s sovereign rights and jurisdiction over its EEZ and continental shelf and safeguards its national interests but also provides the framework policy 

directives concerning MSR.20 In particular, article 3 of this law echoes the provision of 

article 56 of UNCLOS regarding sovereign rights over natural resources and jurisdiction 

over matters in the EEZ, including MSR.

The 1998 EEZ/CS Law provides that “all international organizations, foreign organizations or individuals shall obtain approval from the competent authorities of the People’s 

Republic of China for carrying out marine scientific research in its exclusive economic 

zone and on its continental shelf, and shall comply with the laws and regulations of the 

People’s Republic of China” (art. 9). It also reaffirms the residual rights of all states to 

high-seas freedoms in the Chinese EEZ relating to navigation, overflight, and laying 

submarine cables and pipelines (art. 11). 

China emphasizes its enforcement authority over the EEZ in paragraph 2 of article 12, 

which provides that “the People’s Republic of China shall have the right to take necessary measures against violations of its laws and regulations in the exclusive economic 

zone and on the continental shelf.”21 The 1998 EEZ/CS Law thereby improved China’s 

maritime legislation and provided a legal basis for China to control research and survey 

activities in its EEZ. Analysis of the provisions of the 1998 EEZ/CS Law and China’s EEZ 

practice indicates that China’s implementation of international law is consistent with the 

general principles of the Law of the Sea (LOSC) provisions. For instance, articles 2, 3, 

and 5 of the 1998 EEZ/CS Law are virtually a verbatim copy of articles 56(1) and 77(1) 
96 china maritime studies

of the LOSC. Article 10 of the 1998 EEZ/CS Law specifies that China is to prevent and 

control marine pollution.

The 1998 EEZ/CS Law is, however, rather brief and contains only skeletal provisions. 

It would be difficult to implement such legislation without detailed regulations. The 

better to regulate MSR activities, China adopted the Regulations of the PRC on Management of Foreign-Related Marine Scientific Research in 1996 (known as the MSR 

Regulations).22 The fifteen articles of the MSR Regulations lay out specific application 

procedures and major requirements for foreign-related MSR projects in China’s jurisdictional waters. Its opening provision spells out the motivations for such legislation: to 

improve the management of foreign-related research activities, to promote international 

exchange and cooperation in MSR, and to safeguard China’s national security and maritime rights and interests. 

From the listed motives, it is clear that China allows MSR in its jurisdictional waters but 

emphasizes its national security and maritime interests. The text of the MSR Regulations sets out conditions for foreign-related research applicable to all waters under the 

jurisdiction of the Chinese government. Approval of an MSR application depends on 

whether the research project is of a fundamental nature or related to the resources of 

the sea area (mineral resources, fisheries resources, or wild marine creatures). Research 

activities with a resource orientation are subject to more strict control.23

The MSR Regulations also contain provisions specifying the duty of a researching 

state to provide information to the authorizing agency of China, namely, the State 

Oceanographic Administration (SOA).24 SOA will inform the researching state of any 

conditions, which may include Chinese participation or representation in the research 

projects, provision of preliminary and final reports to China, and access for Chinese 

representatives to data and samples collected and assistance in their assessment. If these 

conditions are not met during the conduct of the research, China may require suspension or even termination of the project. 

According to article 5 of the MSR Regulations, a written application to conduct research 

projects must be made through official channels at least six months in advance of the expected starting date of the project. Consent or denial of the application can be expected 

within four months.25 If any violations occur during the ongoing research, the designated Chinese authority for MSR management has the right to terminate the operations; 

it may also confiscate all the research instruments and equipment involved and the data 

and samples obtained or impose a fine, or both.26 For serious cases, criminal liabilities 

may apply, according to the relevant laws of the PRC. 

To facilitate the applications of foreign researchers or states, SOA, as the authority 

responsible for MSR operational management, has promulgated additional working 
military activities in the eez 97

procedures that supplement the MSR Regulations. They provide a “Flow Diagram of 

Foreign-Related Marine Scientific Research Projects,” with the following steps: first, submit the application to SOA six months before the project starts; second, submit to SOA 

the “Application Form for Foreign-Related Marine Scientific Research Projects,” with all 

required information; third, the application is processed by the SOA; fourth, SOA consults with the Ministry of Foreign Affairs and the military department concerned; and 

finally, a decision for approval or denial is made by SOA within four months of submission of the application.

When an application is approved, the researching states or individuals are required to 

submit the operational plan of the research vessel to SOA two months before the cruise 

starts. The “Application Form of At-Sea Operational Plan for Foreign-Related Marine 

Scientific Research Projects” must also be filled out. 

These publicized regulations guarantee the flow of communication through clearly 

identified official channels, as required by article 250 of UNCLOS. It may be observed 

from the provisions of China’s MSR Regulations and its practice that China has made 

an effort to fulfill its obligations to implement an MSR regime in accordance with the 

UNCLOS framework of Part XIII in its jurisdictional waters.27

Nevertheless, there have been problems in applying the legal framework of MSR because 

of the lack of agreed definitions and specific distinctions between MSR and hydrographic and military surveys. One particular example of this difficulty occurred between 

the United States and China. The United States has been a world leader in most areas of 

global affairs, including expanding and strengthening its MSR globally. In recent years, 

U.S. naval vessels have engaged in military activities involving operation of research 

and survey equipment in the EEZ of China, causing serious arguments between the two 

countries.28 This has also caused heated debate in international arenas concerning the 

nature of a coastal state’s jurisdiction over MSR, hydrographic surveys, and military 

activities.29

Partially in response to the frequent appearance of American military vessels conducting survey activities in its jurisdictional waters, China has updated its laws and regulations to manage various aspects of foreign-related survey activities in its EEZ.30 These 

include amendment of the Law of the PRC on Surveying and Mapping in 2002 at the 

29th Meeting of the Standing Committee of the Seventh National People’s Congress.31

The amended Surveying and Mapping Law takes more strict measures to control survey 

activities in China’s jurisdictional waters.32 Article 1 of this law stresses its threefold purpose: first to ensure the smooth conduct of surveying and mapping, second to promote 

national economic development, and third to build up national defense and scientific 
98 china maritime studies

research. Article 2 highlights that this law applies to all surveying and mapping activities 

conducted in Chinese national airspace, land, and sea areas.

Article 7 of the Surveying and Mapping Law permits survey activities in the sea areas 

under the Chinese jurisdiction, subject to the approval by the competent authorities of 

the State Council and the relevant military department and in compliance with the relevant laws and regulations of China. This article also stipulates that any foreign-related 

surveying and mapping must be carried out in the form of a joint venture or in cooperation with a Chinese partner and cannot involve state secrets or harm state security. 

According to article 51 of the law, it is a violation for a foreign organization or individual 

to conduct surveying and mapping activities without the approval of the Chinese government. It is also a violation for a foreign organization or individual to conduct surveying and mapping activities alone in areas under China’s jurisdiction, and severe criminal 

penalties are authorized if the results obtained from any survey involve state secrets. 

To adapt to the changed circumstances and to implement better the Surveying and 

Mapping Law, China also updated the Regulations of the People’s Republic of China on 

the Management of Surveying and Mapping Results.33 This new law asserts the ownership by China of the results of all surveying and mapping activities conducted jointly or 

cooperatively in areas under the sovereignty of China.34 In the case of surveys conducted 

in nonsovereign areas under China’s jurisdiction, duplicate copies of the results are to 

be submitted to the competent department for surveying and mapping administration 

under the State Council.35 In a similar manner, China declared Regulations of the PRC 

on the Protection of Surveying Markers.36

On 19 January 2007, China adopted Temporary Management Measures on Surveying 

and Mapping Activities Conducted by Foreign Organizations or Individuals in China.37

Article 1 of the Management Measures states the threefold purposes of this law: to 

enhance control over survey activities conducted in areas under Chinese sovereignty or 

jurisdiction by a foreign organization or individual (that is, foreign surveying in Chinese 

areas), to safeguard national security and interests, and to promote international communication and cooperation in areas of economy and science. 

Article 3 articulates three principles to be observed by foreign surveying vessels within 

the Chinese areas: they must comply with the Chinese laws, regulations, and relevant 

rules; their activities may not involve state secrets of China; and they may not damage 

China’s national security. 

Articles 4 and 5 designate the competent agencies for administration of foreign-related 

surveying and mapping activities. Article 6 specifies avenues for a foreign organization 

or individual to apply for a surveying permit, namely, in joint-venture or cooperative 

form with departments or organizations of China. Even under the two forms, article 
military activities in the eez 99

7 prohibits certain activities, including ocean surveying and mapping. Articles 8 and 9 

detail the conditions and documentation required to apply for a permit. Article 10 lists 

the procedures and communication channels for permit processing, including filing the 

application; initial assessment within twenty working days; further investigation by a 

higher administrative authority, involving the relevant military department; release of 

the result within eight working days; and finally the issuing of a permit. The rest of the 

articles deal with the management of survey results (art. 15), periodic inspections during 

the conduct of the survey (art. 16), and legal liability for violations (arts. 17, 18, and 19). 

The State Bureau of Surveying and Mapping, which is under the same ministry as SOA, 

is the competent authority for survey management. It has established an International 

Department to handle foreign-related surveys. To facilitate the implementation of 

the Surveying Law, it issued Regulations on Scenic Spots and Historic Sites and other 

detailed regulations. To give effect to the above-mentioned laws, the bureau issued 

Directives on the Procedures for Administrative Punishment regarding Surveying and 

Mapping.38

To implement these national laws and regulations, a total of twenty-three provinces, 

autonomous regions, and municipalities directly under the central government have 

subsequently revised local measures for surveying and mapping management after the 

Surveying and Mapping Law was put into effect in 2002.39 These instruments require 

Chinese agencies to carry out their responsibilities fully, adopt proper measures, and 

ensure forceful supervision of survey activities in the areas under Chinese jurisdiction. 

In this way, the Chinese legal system for overseeing surveying and mapping was further 

improved and consolidated. 

In the international arena, China has been active in participating in international 

organizations related to MSR promotion, such as the North Pacific Marine Science 

Organization (PICES). China has also signed bilateral and multilateral agreements with 

the United States, Canada, Germany, France, Russia, Spain, Japan, the two Koreas, and 

India, among others, regarding cooperation in the development of marine science and 

technology. These actions are indicative of China’s positive attitude toward MSR-related 

activities.

Implications and Suggestions

Many changes have occurred in international law and state practice since the entry into 

force of UNCLOS. The uncertainty and limited details of the UNCLOS regime regarding jurisdictional rights to MSR and hydrographic and military surveys have resulted in 

many cases of disagreement over practices and concepts. 
100 china maritime studies

In today’s active media environment, for a government to refuse to deal with wellpublicized matters is not a viable strategy. Even though there are no clear-cut boundaries between research and survey activities, some states intentionally make distinctions 

between these terms so as to avoid the jurisdiction of a coastal state. They claim surveys 

to be high-seas freedoms separate from MSR and not subject to coastal-state regulations 

applicable to MSR in foreign EEZs and on foreign continental shelves. The international 

community has a common understanding of the concept of sovereign rights and jurisdiction, but not all states accept this interpretation.

If “hydrographic surveys” or “military surveys” were to be excluded from the scope of 

MSR, “hydrographic surveys” and “military surveys” could be carried out in the EEZs 

of coastal states without any restrictions. Eventually, this would lead to the collapse of 

the present MSR regime, particularly in the EEZ. This was certainly not what UNCLOS 

intended. The increased importance of EEZ management and state practice suggest that 

hydrographic and military surveys in the EEZ should be under the jurisdiction of the 

coastal state.

Further, MSR activities are very diverse. The numerous processes, operations, characteristics, and goals of MSR cannot be adequately captured by this simple term. From the 

perspective of coastal states, it is difficult to differentiate MSR from hydrographic and 

military surveys. Additionally, the technology of MSR is advancing. The development 

of aerial and space-based remote-sensing platforms will make it more challenging for 

coastal states to apply their jurisdiction and control over MSR in the EEZ. 

Moreover, it is true that the EEZ was previously considered high seas, but UNCLOS now 

separates the EEZ from the high seas, and residual freedoms in the EEZ are no longer 

the same as freedoms of the high seas in the traditional sense. UNCLOS, as a “package 

deal,” reaffirms the centuries-old principle of freedom of the seas and maintains such 

freedoms as navigation and overflight in the EEZ (art. 58). The compromises reflect the 

substantial conceptual change in freedoms of the seas and the balance of jurisdictional 

functions among states. There is also allowance for constant modification to resolve 

newly developing problems. UNCLOS achieves a balance between ocean enclosure by 

coastal states, on the one hand, and traditional freedoms, on the other. UNCLOS also 

balances the rights and duties of developing costal states with those of maritime powers.40 Maritime powers emphasize the principle of freedom of the seas and hope to maximize these freedoms, while developing coastal states stress sovereignty and security.41

Although criticized for maintaining excessive expectations of the MSR regime, over the 

years coastal states have expanded their control over their EEZs by exercising jurisdiction 

over non-resource-related activities, including many military activities. More restrictions 

have also been imposed on the freedom of the seas by the international community 
military activities in the eez 101

through UNCLOS and other rules of international law.42 When states exercise these freedoms in a foreign EEZ, they are required by UNCLOS article 58 not to contravene the 

regime of the EEZ but to have “due regard” for the rights and duties of the coastal state 

and to comply with the laws and regulations established by the coastal state.

Over time, the uses of data collected during surveys have changed dramatically. Data 

obtained from hydrographic survey can be used not only for navigation safety but also 

for resource exploration and exploitation, defining maritime boundaries for jurisdictional control, and coastal-zone management. In this context, hydrographic surveys and 

military surveys should be included within the scope of MSR, regulated by the same 

MSR regime, and subjected to coastal-state jurisdiction.

Until an acceptable and fair regime on research and survey is established, practical 

guidelines need to be worked out to promote international cooperation. A precautionary 

approach has been adopted in many areas, such as the management of fisheries resources 

and protection of the marine environment. It may also be helpful to adopt the precautionary approach to control research and survey activities in order to avoid potential 

conflicts caused by the widely divergent views of coastal states and maritime states. 

Concluding Remarks 

The sea is a medium of navigation and communication, a vital link in the earth’s lifesupport system. Today, mankind looks toward the seas for sustenance more than ever 

before, as growing populations and higher living standards have intensified demands 

for sources of food, fuel, and other resources, including expansion of national space. 

Through advances in science and technology the once-unexplored ocean depths are now 

within mankind’s reach. The need to obtain more knowledge about the marine environment will only increase. 

In many important respects, the provisions of UNCLOS were regarded as reflecting 

customary international law even before its entry into force, and this has been confirmed 

by subsequent state practice. However, some of its provisions were not regarded as such, 

or their status was unclear. Moreover, any legal regime is subject to change because of 

new developments. 

According to UNCLOS, the EEZ is an area of shared rights and responsibilities between 

the coastal state and all other states.43 China holds the view that a coastal state is entitled 

to control its EEZ more strictly according to its needs.44 The EEZ is subject to a special 

regime. It is neither territorial sea nor high sea.45

All marine data may be used for research, no matter what the means and location of collection. Therefore, in a broad sense, MSR could cover all forms of data-collecting activities. It can be very difficult not to include surveys as MSR: they bear a close relationship 
102 china maritime studies

to other research activities, and it is becoming more and more difficult to distinguish 

between them. Without research concerning hydrographic data, it is basically impossible 

to implement any provisions of UNCLOS.

The real concern is that the amount of “research” conducted by military vessels in the 

name of “surveys” would increase, with the consequential possibility that more maritime conflicts or harassment will occur. Instead of blaming the problems inherent in the 

existing international legal framework, it is wiser and more practical to strive for a collaborative operational framework—that is, to release tension, build trust, and cooperate.

The issue of the developmental imbalance among countries will continue to exist and 

will inevitably influence the field of research and survey activities. This is the root cause 

of the problem, but no solution can be offered at a time when the level of development 

among states is yet to be balanced. It is obvious that some drawbacks exist in UNCLOS 

regarding the MSR regime in the EEZ. It does not define MSR on the basis of the activity. Nor does it define the operational methods and means of conducting MSR. Neither 

does it establish objective criteria to determine the purposes and motivation behind the 

conduct of MSR activities. The MSR regime in the EEZ is largely undefined, leading to 

conflicting positions regarding jurisdiction.

Eventually, common ground may be found to address the regulatory gaps and implementation concerns that are present in the existing MSR regime. However, there is still a long 

way to go to build a practical and realistic MSR system, given the great variety of new 

issues. Along with the development of science and technology, more and more marine 

data-collection activities will be conducted in the world’s oceans. To protect the oceans 

and their resources better, the lack of international law provisions regulating marine data 

collection, including hydrographic and military surveys, will have to be resolved. 

It is necessary for coastal states to develop national legislation to enhance EEZ management and improve enforcement in the area of marine data-collection activities.46 For 

the international community it is also essential to resolve the major issues regarding 

the MSR regime. Among these issues: Should all marine data-collection activities be 

subject to coastal-state regulation in the EEZ? Are there means to capture diversified 

MSR activities, including surveys, in terms of processes, operations, characteristics, and 

motives? Should advances in technology, changed circumstances, and emerging issues 

be incorporated into the MSR regime? Can cooperation be promoted through faithful 

implementation of the MSR regime, with goodwill, without taking advantage of this 

general framework? Can a code of conduct or practical guidelines for MSR and surveys 

be developed to diminish the existing disagreement and potential for conflict? Advances 

of knowledge and skill also make it necessary to update the MSR legal regime of 

UNCLOS to close legal loopholes. 
military activities in the eez 103

These challenges can best be addressed through cooperative action that promotes 

the peaceful use of the oceans instead of confrontation. For the purpose of peaceful 

exploration and exploitation of the oceans, coastal states should make every effort to 

reach consensus by enhancing communication and strengthening cooperation. A proper 

way to make full use of the oceans without abusing the right to conduct MSR granted 

by UNCLOS may also include the development of practical guidelines to govern such 

particular forms of MSR activities as hydrographic and military surveys. 

1. United Nations [hereafter UN], United Nations 

Convention on the Law of the Sea of 10 December 

1982, effective 16 November 1994 [hereafter 

UNCLOS]. As of 1 March 2010, UNCLOS has 

160 ratifications, including that of the European 

Union. See www.un.org/.

2. The “Area” is defined in article 1 of UNCLOS as 

the seabed, ocean floor, and subsoil beneath the 

high seas and beyond national jurisdiction. For 

“peaceful purposes,” arts. 87, 143, 256, and 257.

3. Countries such as Argentina and Japan support this view, whereas the United States and 

the United Kingdom are against it. At the 39th 

Intergovernmental Oceanographic Commission (IOC) Executive Council’s meeting in June 

2006, the United Kingdom took the view that 

the routine collection of data by Argo floats 

should not be considered as MSR but rather as 

an operational activity that should be treated in 

a similar way to meteorological activities; IOC, 

Thirty-ninth Session of the Executive Council 

IOC/EC-XXXIX/3 (Paris 21–28 June 2006), p. 

37, para. 262, available at http://ioc-unesco.org. 

Japan and Argentina disagreed. They considered 

that the Argo floats are MSR tools and that the 

data collected by them are of benefit to marine 

meteorology (para. 263).

4. This is evidenced from the earlier international 

conventions and treaties—such as the four 

conventions adopted at the 1958 UNCLOS I—in 

which no restrictions may be found regarding 

MSR and survey activities, though that is partly 

due to the limited capacity of science and technology applied to the world oceans at the time 

those treaties and conventions were developed. 

5. For a detailed discussion on this term, see Zhang 

Haiwen, “The Conflict between Jurisdiction of 

Coastal States on MSR in EEZ and Military Survey,” in Recent Developments in the Law of the Sea 

and China, ed. M. H. Nordquist, J. N. Moore, and 

K. Fu (Leiden, Neth.: Martinus Nijhoff, 2006), 

pp. 317–31.

6. According to the International Hydrographic 

Organization, hydrography is the branch of 

applied sciences that deals with the measurement and description of the physical features of 

oceans, seas, coastal areas, lakes, and rivers, as 

well as with the prediction of their evolution, for 

the primary purpose of safety of navigation and 

all other marine purposes and activities, including economic development, security and defense, 

scientific research, and environmental protection. 

See International Hydrographic Organization, 

www.iho-ohi.net/. 

7. For various aspects regarding the definitions of 

hydrographic survey, see Wikipedia, s.v. “hydrographic survey,” chartmaker.ncd.noaa.gov/hsd/

hydrog.htm, and www.msq.qld.gov.au/Home/

Waterways/Hydrographic_survey_standards/. 

8. J. A. Roach and R. W. Smith, Excessive Maritime 

Claims, International Law Studies 66 (Newport, 

R.I.: Naval War College, 1994), p. 248. 

9. The UN General Assembly and the IOC Executive Council both adopted resolutions that 

required the IOC to draft and issue a questionnaire surveying the practice of states with 

respect to Parts XIII (MSR) and XIV (Transfer 

of Marine Technology [TMT]) of UNCLOS. 

The resolutions that embody that requirement 

include the UN General Assembly Resolution 

A/RES/56/12 and IOC Executive Council 35 

Resolution EC-XXXV.7 (Paris, 4–14 June 2002). 

The purpose of the survey and the subsequent 

data compilation and analysis was to assess the 

problems encountered in the implementation 

of the MSR regime as established by Part XIII of 

UNCLOS; to assist states in establishing generally 

accepted guidelines, criteria, and standards for 

TMT in accordance with article 271 of UNCLOS; 

and to inform the international community as 

to the status of MSR and TMT and of practical 

issues raised in their implementation. On IOC’s 

Advisory Body of Experts on the Law of the Sea 

(IOC/ABE-LOS) IV, a considerable number of 

countries expressed interest in receiving guidance/assistance in updating or creating legislation 

Notes
104 china maritime studies

for MSR. Most countries listed security as the 

rationale for not employing the implied-consent 

regime. More details are available from “Questionnaire N.3,” UNESCO/IOC/Law of the Sea,

ioc3.unesco.org/. 

10. Quite often hydrographic surveys are regarded 

as MSR. See Atsuko Kanehara, “Marine Scientific 

Research in the Sea Zones Where Claims of Two 

States for the Exclusive Economic Zone Overlap 

under the United Nations Convention on the 

Law of the Sea” (presented to the 7th Conference 

of Science Council of Asia Conference, Workshop D: Security of Ocean in Asia), available at 

www.scj.go.jp/.

11. See Sam Bateman, “Hydrographic Surveying in 

the EEZ: Differences and Overlaps with Marine 

Scientific Research,” Marine Policy 29, no. 2 

(March 2005), pp. 163–74.

12. See Chang-Wee Lee and Chanho Park, “Joint 

Marine Scientific Research in Intermediate/Provisional Zones between Korea and Japan” (presented to the 7th Conference of Science Council 

of Asia Conference, Workshop D: Security of 

Ocean in Asia), available at www.scj.go.jp/.

13. For more details of IOC/ABE-LOS, see “IOC/

LOS,” UNESCO/IOC/Law of the Sea, ioc3.unesco 

.org/. 

14. For a summary see “Practices of Member States,” 

UNESCO/IOC/Law of the Sea, ioc3.unesco.org/. 

15. More examples of national legislation, such as 

the Regulations of the People’s Republic of China 

on the Management of Foreign-Related Marine 

Scientific Research [hereafter MSR Regulations]

and the Regulations Relating to Foreign Marine 

Scientific Research in Norway’s Internal Waters, 

Territorial Sea, Exclusive Economic Zone and on 

the Continental Shelf, are available from “National Legislations,” UNESCO/IOC/Law of the 

Sea, ioc3.unesco.org/. 

16. According to the guidelines, public vessels 

include those owned, chartered, temporarily 

employed, contracted, or commissioned by any 

foreign state, agency, or instrumentality of that 

state, when such ships are not engaged in any 

commercial activity.

17. The first single-ship expedition was carried out 

by the Chinese-built, four-thousand-ton R/V 

Xiangyanghong 16 in the western Pacific (latitudes 7–13 degrees north, longitudes 167–78 

degrees west, in 1983). See the “Development of 

China’s Marine Programs (White Paper),” www 

.china.gov.cn/. 

18. See “Decision of the Standing Committee of the 

National People’s Congress of the People’s Republic of China on the Ratification of the United 

Nations Convention on the Law of the Sea, 1996.” 

For the English version see State Oceanographic 

Administration [hereafter SOA], Collection of the 

Sea Laws and Regulations (Beijing: Ocean, 2001), 

p. 199.

19. For the Chinese and English versions of the 1998 

EEZ/CS Law, see SOA, Collection of the Sea Laws 

and Regulations, pp. 11–14, 210–15. 

20. China employed the relevant provisions of 

UNCLOS to define its EEZ and sovereign rights. 

See article 2 of the 1998 EEZ/CS Law and articles 

55 and 57 of UNCLOS.

21. It states: “In the event of a violation of the laws 

and regulations of the People’s Republic of China 

in the exclusive economic zone or the continental 

shelf, the People’s Republic of China shall have 

the right to take the necessary investigative 

measures in accordance with the law and may 

exercise the right of hot pursuit.”

22. The regulations were promulgated by Decree No. 

199 of the State Council on 18 June 1996 and put 

into effect on 1 October 1996.

23. MSR Regulations, art. 2.

24. Ibid., arts. 3–13. 

25. There are ongoing discussions in China about 

revising the MSR Regulations to confirm the 

adoption of a broad definition of MSR that 

includes all survey activities in the waters 

under the jurisdictional control of the Chinese 

government.

26. MSR Regulations, art. 13.

27. For more details on implementation of MSR 

regulations by other states, see “Marine Scientific 

Research,” UNESCO/IOC/Law of the Sea, ioc3 

.unesco.org/. 

28. One example of such correspondence occurred 

in September 2006, in the EEZ of China. The 

Chinese maritime surveillance ship No. 27 had 

the following VHF radio exchange with U.S. 

Naval Ships Sumner (T-AGS 61) and Mary Sears

(T-AGS 65) at 28° 32.93'N, 124° 19.65'E. No. 27:

“You are in China’s EEZ and conducting MSR, 

thus subject to the Chinese laws on MSR.” Sumner/Mary Sears: “I’m engaged in lawful military 

activities in international waters. I’m not engaged 

in marine scientific research. I’m operating with 

due regard for the safety of others and facility 

and in accordance with international law.” For 

more on this account, see www.chinanews.com 

.cn/gj/news/2007/04-10/912056.shtml. 

29. For a fuller account, see M. J. Valencia and K. 

Akimoto, eds., “Military and Intelligence Gathering Activities in the Exclusive Economic Zone: 

Consensus and Disagreement II,” Marine Policy

29, no. 2 (March 2005), pp. 95–187.
military activities in the eez 105

30. For the details of the laws and regulations related 

to survey and mapping activities, see www.sbsm 

.gov.cn. For discussions, see M. J. Valencia, “Summary of the Bali Dialogue,” Marine Policy 28, no. 

1 (2004), pp. 7–12.

31. The Surveying and Mapping Law was promulgated in December 1992 by Presidential Decree 

No. 66 and became effective on 1 July 1993.

32. See SOA, Collection of the Sea Laws and Regulations, pp. 64–70, 300–13. The announcement 

of this new law followed a confrontation of the 

American navy’s ocean survey ship Bowditch

with a Chinese maritime surveillance patrol 

vessel in the southern part of the Yellow Sea in 

September 2002. See B. Gertz, “China Enacts Law 

Extending Its Control,” Washington Times, 27 

January 2003, p. 1.

33. The law was amended at the 136th Meeting of 

the State Council on 17 May 2006 by Decree 

No. 469 of the State Council and was put into 

effect on 1 September 2006. It supersedes the law 

adopted on 21 March 1989.

34. Law on Surveying and Mapping Results, art. 8, 

para. 1. 

35. Ibid., art. 8, para. 2.

36. State Bureau of Surveying and Mapping, “Regulations of the PRC on the Protection of Survey 

Markers” (in Chinese), available at hgs.sbsm.gov 

.cn/article/zcfg/flfg/200709/20070900000661 

.shtml.

37. This law was proclaimed by Ministerial Order 

No. 38 of the Ministry of Land and Resources 

and was put into force on 1 March 2007. State 

Bureau of Surveying and Mapping, “Temporary 

Management Measures for Survey and Mapping Activities Conducted by Foreign Organizations or Individuals in China” (in Chinese), 

available at www.sbsm.gov.cn/article//zcfg/

bmgz/200709/20070900000644.shtml for the 

Chinese text. 

38. The regulation was issued in December 1999 (Serial No. 6) and made effective on 4 January 2000.

39. For more information on this account, see www 

.sbsm.gov.cn. 

40. Extract from the Official Records of the 134th 

Plenary Meeting of the Resumed Ninth Session of 

the Third United Nations Conference on the Law of 

the Sea, 25 August 1980 (1982), vol. 14, p. 15. 

41. Wang Yi-Zhou, International Politics (Shanghai: 

Shanghai People’s, 1995), p. 80. 

42. The extension of the jurisdiction of coastal states 

is observed from the evolution of the laws of 

the sea, the four Geneva Conventions adopted 

in 1958, the crystallization of the EEZ regime, 

and the implementation of the MSR regime and 

associated discussions at the IOC/ABE-LOS of 

UNESCO. See “UNESCO/IOC/LOS at a Glance,” 

UNESCO/IOC/Law of the Sea, ioc3.unesco.org/. 

43. UNCLOS article 56 provides coastal states 

sovereign rights and jurisdiction over natural resources, whereas article 58 provides that foreign 

states retain certain freedoms, such as navigation 

and overflight. 

44. China is of the view that the use of the EEZ 

for nonpeaceful purposes, such as military and 

electronic intelligence gathering, is illegal. See X. 

Cheng, “A Chinese Perspective on ‘Operational 

Modalities,’” Marine Policy 28, no. 1 (2004), pp. 

25–27. 

45. For a supporting view: “EEZ is subject to a ‘special regime.’ The regime is specific in the sense 

that the legal regime of the EEZ is different from 

both the territorial sea and the high seas. It is a 

zone which partakes of some of the characteristics of both regimes, but belongs to neither.” UN, 

The Law of the Sea: National Legislation on the 

Exclusive Economic Zone, the Economic Zone and 

the Exclusive Fishery Zone (New York: 1986), p. 

13.

46. It is suggested that China strictly control foreign 

MSR and hydrographic and military surveys 

in its jurisdictional waters. With an expansion 

of the administrative scope of its EEZ to two 

hundred nautical miles, the Maritime Safety 

Administration of China will increase its future 

input in science and technology and further 

improve its maritime administrative methods. 

More vessels and aircraft of different models will 

be constructed in the coming years, to be used 

for tridimensional inspection and control over 

the sea, and an Internet Vessel Reporting system 

will also be put into use. See “China to Expand 

Maritime Administration Scope,” Xinhua, 12 

February 2003, www.china.org.cn/.

The United States and the People’s Republic of China (PRC) each piously claim to 

abide by the United Nations Convention on the Law of the Sea (UNCLOS), but each 

accuses the other of playing with the rules to advance parochial interests. The dissensus 

manifests itself in conflicting interpretations of what activity UNCLOS permits in the 

exclusive economic zone (EEZ). Narrowly conceived, this is a dispute about law. Viewed 

from a broader vantage, the dispute is one of a lengthening roster of issues in which the 

PRC and the United States are jostling for dominance over international regimes, reflecting an intensifying geostrategic friction that arises from mutual insecurity and mistrust. 

Whether one perceives the PRC as a rising hegemon challenging U.S. primacy because 

of an abiding dissatisfaction with the norms and rules of an international system over 

which Washington exerts a disproportionate influence, or whether one prefers a less 

breathless depiction of the PRC as merely resentful of U.S. actions that seem to degrade 

China’s security, it is evident that Beijing is prepared to contest Washington’s view of 

what is permissible in the EEZ.1

 The putative source of controversy—how to interpret 

UNCLOS—is merely a symptom of a more pervasive malady in the Sino-U.S. relationship. Probing farther, one discerns the PRC and the United States engaged in a broader 

contest about access to and control over maritime space, which itself reflects an even 

deeper anxiety about how the evolving capacity of each to project military power affects 

the national security of the other. Ultimately, how the United States and the PRC manage these nested controversies affects the well-being of the international system, which 

Beijing and Washington each seek to influence. 

If the only thing at stake were the question of what activities might be conducted in the 

EEZ, there are ways by which Beijing and Washington might modify their behavior to 

forestall conflict while resisting any erosion of the sense of national security. To date, 

neither has had the will to dismount from its high horse to compromise. That neither 

has done so does not mean that it is impossible or inconceivable. 

Progress toward a modus operandi with respect to the EEZ has been impeded not for 

lack of opportunity or institutional mechanisms through which accommodation might 

be established but because the opposed postures concerning UNCLOS that Beijing 

and Washington have adopted grow from more than conflict over the EEZ. Beijing and 

Alan M. Wachman

CHAPTER EIGHT

Playing by or Playing with the Rules of UNCLOS? 
108 china maritime studies

Washington are both working to ensure that their respective views of propriety are 

established or consolidated as customary international law where maritime activity 

is concerned. This may reflect the ambition each has of exercising leadership in other 

arenas where developed and developing states are characterized as viewing the world 

through different lenses. 

In sum, there is much more at stake in the dispute about UNCLOS than an enumeration 

of what activities may be permitted in the EEZ. At issue is how the United States and 

the PRC will address mutual grievances within the boundaries of inherently imperfect 

international regimes and what implications their responses will have for the international system.

Looking beyond Law

Law generally, and UNCLOS in particular, has become one means of contestation but 

not one that addresses the source of underlying political friction between the United 

States and the PRC.2

 The Sino-U.S. impasse arises from a conflict of strategic ambitions. Jousting over the definition of what activities may be permitted in the EEZ, the 

United States and the PRC mask (or refrain from acknowledging) their fundamental 

assumptions and, equally, hesitate to articulate the insecurity and indignation that each 

provokes in the other.

Each side devises elaborate argumentation to justify a position by reference to terms and 

passages from UNCLOS, implying a common acquiescence to the primacy of international law generally and to the UNCLOS regime specifically. Neither side challenges 

the legitimacy of international law in general or UNCLOS in specific. That the two 

disputants contend in such civil, legalistic discourse might encourage one to conclude 

that reason has surpassed passion, except that vessels from each state, dispatched by 

authorities determined to defend a principled position, meet in defiant encounters at 

sea, jeopardizing maritime harmony, menacing bilateral relations, and endangering the 

lives of duty-bound sailors. Thus, it provides only modest comfort that conversation 

about the EEZ is possible, even if it is through dialogue that both sides prefer to resolve 

the present controversy. 

A resolution of the EEZ issue is unlikely to emerge from a discussion of law, because 

the law is not really the problem. Sino-U.S. relations are strained because of the ways 

in which the strategic aims of Beijing and Washington collide and chafe against one 

another during a period of rapid transition of stature and perceived power. 

Simply put, the PRC—reflexively anxious about its comparative weakness in the face of 

far more robust U.S. military power—worries about how the United States and its allies 

may undermine those assets that the PRC has managed to develop to offset the existing 
military activities in the eez 109

military asymmetry between them. Beijing seems committed to expanding strategic 

depth by raising the cost to the United States of operating close to the PRC’s shores. 

In line with this objective, the PRC evidently resents U.S. intelligence and surveillance 

activities. It hopes to push foreign forces as far from shore as is possible, especially those 

with prying eyes capable of gathering information about assets Beijing prefers to keep 

secret.

One PRC military official present at the U.S. Naval War College conference that gave rise 

to this volume expressed Beijing’s irritation and disquiet, explaining that its reason for 

seeking to deny the United States and other foreign vessels unfettered access to the EEZ 

has everything to do with the PRC’s perceptions of U.S. intentions. The official said that 

just as a person looking out from the front door of his home develops intuition to know 

whom to welcome into his house for tea and against whom to slam the gate, so too does 

the PRC respond intuitively to what it perceives as America’s hostile strategic intentions. 

Casting the PRC attitude about foreign military activities in the EEZ as a self-evidently 

rational reaction by Beijing to Washington’s unreasonable expectations and questionable intentions, the PRC official made plain his view that the controversy—including, 

one presumes, the incidents at sea—results from flawed American policies. The rhetoric 

most often invoked in this context is an assertion by Chinese commentators that the 

United States seeks to “contain China.”3

 This concern is particularly acute with respect 

to the South China Sea and extends not only to the actions of the United States but also 

to those of Japan and India. Without making explicit what precisely it means to contain 

China or how the United States would accomplish this objective, the implications of a 

distinction between a guest one invites in for tea and a menacing presence one works 

to exclude is that if the United States were to adjust its posture to conform with Beijing’s preferences, the source of friction would disappear and the controversy would be 

resolved.

During an August 2009 special session convened under the 1998 Sino-U.S. Military 

Maritime Consultative Agreement (MMCA), a PRC Ministry of Defense official made a 

comparable point, stating, “China believes the constant U.S. military air and sea surveillance and survey operations in China’s exclusive economic zone had led to military 

confrontations between the two sides. . . . The way to resolve China-U.S. maritime 

incidents is for the U.S. to change its surveillance and survey operations policies against 

China, decrease and eventually stop such operations.”4

 In this case, as in so many others 

where the PRC finds itself in dispute with foreign states, the Chinese frame the controversy as one in which fault rests entirely on the other side. From Beijing’s perspective, as 

its spokesmen are wont to observe, the PRC has been pushed by the other state into the 

unwelcome position of having no option other than the one to which the foreign state 

now objects.
110 china maritime studies

For its part, the United States, which has long defined its own national security in terms 

of sustaining access to waters and airspace half a world away, views charily any erosion 

of its freedom of navigation or overflight.5

 In 1979 the United States established the 

Freedom of Navigation (FON) Program to challenge claims by coastal states that they be 

permitted to restrict freedom of navigation or overflight beyond those standards more 

widely endorsed by the international community. According to the U.S. Department of 

State, the United States pledges to 

exercise and assert its navigation and overflight rights and freedoms on a worldwide basis 

in a manner that is consistent with the balance of interests reflected in the Law of the Sea 

(LOS) Convention. The United States will not, however, acquiesce in unilateral acts of 

other states designed to restrict the rights and freedoms of the international community in 

navigation and overflight and other related high seas uses.6

To achieve these ends, the United States engages in a range of diplomatic and consultative activities but also authorizes “operational assertions by U.S. military units,” which 

target states—including the PRC—seeking to impose greater restrictions on movement 

than are embodied in UNCLOS.7

It is worth observing that the American policy regarding freedom of navigation is not 

an outgrowth of concern only about the PRC but is implemented globally. Indeed, at 

least until the end of the administration of President George W. Bush, the Office of the 

Under Secretary of Defense for Policy published on an annual basis what were known 

as “FON assertions”—lists of all states that sought to restrict freedom of navigation and 

the particular manners in which they sought to do so. Since then the U.S. Department of 

Defense has affirmed its intention to authorize “deliberate and calibrated assertions of 

our freedom of navigation rights by U.S. Navy vessels.”8

So, for the United States, navigation through and overflight of the EEZ—even where 

military activities are undertaken—is an essential right of all states. As to the inclination 

to engage in surveillance and intelligence gathering in a region that the PRC perceives 

as sensitive, one American conference participant observed that American strategic 

planners seem to be perpetually anxious about assaults on their domain emerging as 

strategic surprises—an apprehension triggered by the Japanese attack on Pearl Harbor 

in 1941 and reinforced for a new generation by al-Qaeda’s attacks of September 11, 2001. 

Consequently, the very idea that the PRC hopes to prevent scrutiny of submarine and 

related assets arouses suspicions and prompts American resolve to ensure that it not be 

caught unaware of newly devised capabilities or incapable of responding to them. 

For both American and Chinese strategists and statesmen, then, the controversy about 

what is allowable under UNCLOS is not a simple question of how best to interpret the 

convention but is the outgrowth of geostrategic competition under conditions of a security dilemma. Both defend their positions as matters of principle.
military activities in the eez 111

This, though, is not the manner in which disagreements about activities in the EEZ are 

commonly addressed. Instead, in Beijing as in Washington, the focus is on what 

UNCLOS permits and why it is therefore obvious that the other side is in violation of 

clearly stated precepts. As the chapters of this volume suggest, efforts by American and 

Chinese commentators to convince each other of views they proffer as unassailable have, 

thus far, failed. Indeed, Americans and Chinese advocates frequently “talk past” one 

another.9

 Where the EEZ is concerned, statesmen, scholars, soldiers, and other commentators advance assertions that flow from premises that are simply not shared by nationals 

in the other state. As prima facie evidence of this, consider that none of the American 

authors who have contributed to this volume question the legal right of the United 

States to conduct military activities in the EEZ, just as none of the Chinese authors who 

have contributed question the legitimacy of the PRC’s effort to exclude such activities 

from the EEZ.

Fundamentally, each side deploys legal reasoning to justify actions it feels compelled 

to take for the enhancement of its security. As neither side is prepared to debase itself 

by relinquishing its pretense of equanimity—divulging how menaced the other makes 

it feel—each behaves as an aggrieved party, deprived of rights that it claims are plainly 

stated in UNCLOS, rights that it believes it could yet enjoy if only the other side would 

recognize the proper interpretation of the law. For both Americans and Chinese writing 

on this matter, fault rests squarely on the shoulders of the other nation. Neither is prepared to acknowledge or “own” the means by which it exacerbates underlying suspicions 

by actions it takes.

The High Horse of Principle

In resorting to UNCLOS, Beijing and Washington each claim the moral high ground. 

Chinese advocates have adopted the perspective with respect to the EEZ that the PRC 

has taken in other international controversies involving powerful states. The PRC assumes the mantle of the underprivileged developing state confronting harassment from 

the far stronger, developed state. Li Xingguang, president of the PRC’s Military Court of 

the Navy, said in an interview published in Jiefangjun Bao (Liberation Army Daily):

A handful of maritime powers, as represented by the United States, advocates that maritime scientific research in EEZs should not fall under the jurisdiction of littoral states, 

although most other countries uphold the principle of prior agreement . . . [and] third 

world countries generally hold that naval and air force military reconnaissance activities in 

EEZs must be conducted with the agreement of littoral states.10

The PRC position is rife with implications of American hegemony reflecting, consciously or not, the well-trod narrative of China’s sufferings at the hands of Western 

imperialism. 
112 china maritime studies

By choosing this tack the PRC locates its dispute with the United States less in law than 

in the international equivalence of populism. That plays not only to the sympathies of 

its own population—explaining by reference to the asymmetry of power between itself 

and the United States why it cannot defend its interests against incursions into a maritime domain that Beijing claims should be its own to regulate—but also to the global 

bleachers. In this way China seeks to arouse the sympathies of less powerful “developing” 

nations, which feel themselves at some disadvantage in confrontation with the United 

States or other large states that act in self-interest, disregarding the preferences of the 

weaker state. In this sense, the controversy concerning UNCLOS may be seen as one 

battle in the Sino-U.S. war for moral primacy and influence over global institutions. 

As a signatory to UNCLOS, the PRC occasionally implies that its interpretations should 

trump those of the United States, which has yet to ratify the convention that Washington nevertheless employs as a bludgeon against Beijing’s claims that UNCLOS permits 

limitations by coastal states on foreign military activities in the EEZ. The message is that 

even though the United States asserts its compliance with UNCLOS, because it has not 

undertaken to be formally bound by the convention it has no standing to impose its selfregarding interpretations of the regime on those states that have ratified it. 

For instance, Zhang Haiwen cites passages from an essay by Scott Borgerson to make 

the point that there is a “strong political force which is scornful of the Convention in 

the United States. They like to take advantage of the Convention but do not respect it.”11

Zhang writes, “It is unfair . . . that the United States, which has yet to ratify the Convention, is raising an argument on the interpretation of the Convention.”12 Reacting to what 

she views as Washington’s selective compliance with UNCLOS, Zhang highlights the 

following from Borgerson’s piece: “Opponents of the convention [UNCLOS] argue that 

there is no need to join the treaty [UNCLOS] because, with the world’s hegemonic navy, 

the United States can treat the parts of the convention it likes as customary international 

law, following the convention’s guidelines when it suits American interests and pursuing 

a unilateral course of action when it does not.”13

In these sentiments Zhang is not alone. Chinese observers have framed the dispute about 

UNCLOS as illustrative of U.S. hegemonic tendencies. “America’s failure to cooperate with the international community on UNCLOS is not an isolated phenomenon,” 

writes one commentator, “but is one element in its strategy to dominate the world and 

monopolize the oceans.”14

In a vigorous denunciation of the U.S. position on UNCLOS, Shen Dingli, the vice dean 

of the Department of International Studies at Fudan University, comments that for a 

long time the United States has been acting as the world’s primary maritime power, 

seeking to limit the rights and interests of littoral states but all the while penetrating 
military activities in the eez 113

their maritime space in ways that are “hegemonic and offensive.” He asserts that the 

United States, which has thus far refused to ratify UNCLOS, nevertheless regards itself 

as if it were among those states that have ratified the convention, censuring states that 

genuinely have. Shen writes that the United States often interprets the convention from 

the vantage of its own interest rather than according to the stringent standards it claims 

are demanded of a world leader. If this persists, Shen cautions, it will be difficult for 

the United States to maintain its image as a moral and legal exemplar. Instead, it will be 

perceived as a state that is always scheming and seeking to profit at the expense of other 

states. 

Shen writes that the United States must realize that the days when America could be 

insufferably arrogant and take advantage of other states have passed. The PRC, he writes, 

does not have the intention—and, at present, lacks the means—to “run to America’s 

front door” to challenge the U.S. coast and maritime regulations, and, he submits, the 

United States ought not challenge the PRC’s laws on the EEZ. He urges mutual regard 

for the convention that both sides claim is operative and concludes, menacingly, by 

threatening, “The U.S. should consider: as a state which cannot manage to put Iraq in 

good order and is certainly unable to treat Afghanistan fairly, it should, in the face of a 

great country with a population of 1.3 billion, restrain itself a bit.”15

One way to interpret the challenges emanating from the PRC is that Beijing resents a 

legal regime that appears to favor American security at the PRC’s expense. Unable to 

change the words of UNCLOS, the PRC argues—laboriously, at times—to persuade 

the United States that the spirit of the law clearly supports Beijing’s interpretation, even 

where the word of the law may be insufficiently precise. 

Hence, Chinese and American analysts of UNCLOS dicker about the meaning of article 

58(3), which reads: “In exercising their rights and performing their duties under this 

Convention in the exclusive economic zone, States shall have due regard to the rights 

and duties of the coastal State and shall comply with the laws and regulations adopted 

by the coastal State in accordance with the provisions of this Convention and other rules 

of international law in so far as they are not incompatible with this Part.”16 PRC analysts 

point to the “due regard” clause as evidence of the obligation of foreign states to abide 

the laws of coastal states and the right of coastal states to restrict military activities in the 

EEZs off their coasts. American analysts tend to view this conclusion as smuggling into 

the article a privilege that was explicitly rejected by the drafters of the convention.

It is conceivable, of course, that advocates writing on behalf of the PRC offer interpretations of UNCLOS that are in fact meant to reopen and extend negotiations about 

issues that have, apparently, been settled. By challenging the understanding of what is 

permissible in the EEZ, the Chinese analysts may be hoping that other states will follow 
114 china maritime studies

suit, adjusting what would then be seen as customary international law and hoping that 

the legal justifications they offer will likewise become the new norm. This, indeed, is 

precisely why some American proponents of UNCLOS argue that the United States must 

ratify the convention. For example, Rear Adm. Arthur E. Brooks, commander of the 

Seventeenth Coast Guard District, has said, “While reliance upon customary international law has served us well for many years, it does not adequately protect our interests. 

Customary international law is based on the evolving practice of States; it can and does 

erode over time. The Law of the Sea Convention provides the legal certainty and stability” that the admiral believes would assure U.S. interests for the long term.17

Notwithstanding the imperfections in PRC arguments made about the American disregard for UNCLOS, it takes only a modicum of empathy to understand why Chinese 

view U.S. actions as they do. After all, the United States does have the military means to 

enforce its will and, up to a point, continues to press its claims by engaging in operations 

it knows to trespass Beijing’s stated limits of tolerance.18

Beyond that, the United States persists in an unacknowledged expectation that operating a massive armada in the waters of the western Pacific is both a right to which it is 

entitled and an obligation for American national security. Americans have become so 

habituated to unfettered operation in the Pacific that few question the legitimacy or 

ethical propriety of doing so. Americans on both sides of the ideological divide seem to 

support, without reflection, the notion of this entitlement.19

Americans may assume that such dominance is self-evidently in the interests of other 

states because the United States defends the “global commons.” One consequence is that 

Americans may refrain from reflecting on how the U.S. naval presence appears in the 

eyes of the PRC. The Chinese, though, by no means share the certainty that an American naval presence in the western Pacific is, ipso facto, consistent with Beijing’s notions 

of national security. Consequently, even well-considered and conceptually grounded 

explanations of the sensibility of the U.S. presence coupled to well-intended invitations 

for Sino-U.S. cooperation are likely to be perceived by Chinese readers as self-serving 

justifications for the sustenance of American primacy. After all, leaving aside nonstate 

actors that might pose threats to the security of PRC land or seaborne commodities, the 

state that Beijing looks to as the most likely source of harm is the United States.

The authors of a document intended to lay out the PRC’s worldview, strategic concerns, 

and military response—China’s National Defense—survey the strategic situation around 

the world. Turning to the Asia-Pacific region, they write, “The Asia-Pacific security situation is stable on the whole.” However, in a paragraph listing what are euphemistically 

called “many factors of uncertainty,” the document states that “the US has increased 

its strategic attention to and input in the Asia-Pacific region, further consolidating its 
military activities in the eez 115

military alliances, adjusting its military deployment and enhancing its military 

capabilities.”20

It elaborates, “China is faced with the superiority of the developed countries in economy, 

science and technology, as well as military affairs. It also faces strategic maneuvers and 

containment from the outside while having to face disruption and sabotage by separatist and hostile forces from the inside.”21 The frequency with which the PRC press and 

Chinese academics write of what are perceived as U.S. efforts to contain China makes it 

highly likely that references to developed countries and to “strategic maneuvers and containment” mean almost assuredly the United States and, perhaps to a lesser extent, Japan. 

Naturally, Washington avers that its actions in the EEZ are legitimate, and when PRC 

vessels have challenged those claims at sea, the United States has refrained from escalating, while arguing with vehemence and—like a fouled player on a basketball court—

exaggerated indignation about the infringement of its rights by the PRC. American analysts assert that rather few states concur in Beijing’s view of the EEZ as a region where 

foreign military activities are excluded. Moreover, Americans hammer at the PRC’s 

notion that foreign military vessels must secure the permission of the PRC to conduct 

certain activities in the EEZ extending from the Chinese coast. Americans argue that 

UNCLOS does not endorse the view preferred by the PRC that the EEZ is an extension 

of each littoral state’s coast and particular domestic laws but instead argue that UNCLOS 

casts the EEZ as a single oceanic realm in which a single legal regime applies.

This view flows from conviction that there is a single, global system governed by rules 

that operate as the United States claims they do. Actually, the PRC does not contest the 

singularity of the international system. Both the United States and the PRC understand 

that there is a single international system, but both Beijing and Washington are struggling to ensure that it reflects values they each prefer.

Implications

The contretemps of the early twenty-first century regarding the EEZ did not emerge 

only when the PRC rapidly became more wealthy and powerful. That is, the conflict 

is not the by-product of the “rise of China.” The posture Beijing now advances reflects 

preferences that the PRC staked out in the process of negotiating UNCLOS in the 1970s. 

Indeed, as the chapter by Andrew Williams in this collection observes, the PRC was 

among those states that sought during the negotiation of UNCLOS to have “security 

interests” of coastal states protected in the EEZ and military activities by foreign parties 

prohibited.22 These efforts failed.

What may, however, be the outgrowth of the “rise of China” is a newly emerging indignation within the PRC and self-confidence that it can, and should, confront unwelcomed 
116 china maritime studies

foreign vessels as a way of underscoring its determination to protect what it perceives 

to be its rights. In this, the PRC manifests two potentially risky behaviors. The first is 

to base its notion of rights on its own interpretation of a convention, in disregard of 

the prevailing interpretation of a preponderance of signatory states. Beijing could, one 

supposes, withdraw from UNCLOS and insist that it has a right to extend sovereignty 

out to whatever distance from shore it chooses. After all, there are instances when a state 

believes it has the capacity to defend a claim not otherwise protected by law and simply 

snubs the law so as to do what it wills. For example, Japan in 1933, in the face of Western 

condemnation and efforts to constrain the expansion of its foothold in Manchuria, 

withdrew from the League of Nations, citing “a wide divergence of view” between itself 

and the League regarding the implications of its support for the “independence” of 

Manchukuo.23 Germany withdrew seven months later. Should the PRC reach a stage 

of development at which a surfeit of national self-confidence outweighs a capacity for 

level-headed self-restraint, it could defect from UNCLOS and, like the United States, 

claim adherence in its own manner, without being a signatory. 

An even more risky behavior manifested by the PRC, in its confrontational maneuvers at 

sea, is an apparent expectation that by employing obstructive means short of violence—

principally harassment of U.S. vessels—it can persuade the United States to alter its 

operations to conform with PRC preferences while avoiding calamity. There is no need 

to wonder what lessons the PRC has taken from the 1 April 2001 collision of the Chinese 

F-8 and the American EP-3. Wang Wei’s death has not prompted reflection about the 

advisability of exercising greater restraint in expressions of displeasure at U.S. operations 

or of expanding the MMCA to establish a bilateral code of conduct aimed at preventing 

incidents at sea.24 Rather, the PRC not only acknowledges no responsibility for its part in 

these confrontations but justifies its response.

Equally, the United States continues to goad the PRC without recognizing how doing 

so contributes to hostility it otherwise claims interest in overcoming. It behaves as if 

fault for the incidents at sea resides solely in Beijing’s wanton disregard for the safety of 

American sailors and airmen. Washington insists that beyond the specific intelligence it 

may seek from operations conducted in the EEZ, its deployments reify the principle of 

freedom of navigation and therefore should be seen as defending a common good from 

which all states—the PRC included—stand to benefit.

Accustomed as it is to see itself as the defender of liberty and the enforcer of order, the 

United States is not attuned to the perceptions of insecurity and indignation it arouses 

in weaker powers. Americans have become so used to possessing an asymmetric advantage of power that in dealings with less powerful states they assume that the benignity of 

their actions will be self-evident. Were the situation reversed—were the eyes of a much 

more powerful foreign power peering all too intently from much too near at regions 
military activities in the eez 117

of the U.S. coast that Washington considers strategically sensitive—Americans might 

understand more viscerally the alarm U.S. activities provoke off China’s coast. 

The United States believes itself to be playing by the rules. By exploiting far more powerful resources against a far weaker target, it may lose sight of—or perhaps it cares little 

about—how the imbalance affects perceptions of its actions by the other. Pursuing its 

FON operations, the United States may also be playing with the rules to “score points.” 

During the Cold War, the cat-and-mouse, tit-for-tat, thrust-and-parry competition with 

the Soviet Union was a rivalry between two more or less evenly matched opponents. Applying the same norms and harboring expectations that its relations with the PRC ought 

to follow the same pattern, Washington either overlooks or revels in the asymmetry.

From Washington’s vantage, so long as it abides by UNCLOS there is no reason why 

it should restrict its own activities simply because China is made to feel vulnerable by 

them. Just as the PRC justifies its challenges to U.S. activities in the EEZ, so the United 

States justifies those very activities. Feeling their actions legitimated by law and flowing from more fundamental principles, both the United States and China persevere in 

risky displays of determination rather than devising mutually acceptable limits that will 

safeguard the interests of both. Should this pattern persist, one should be unsurprised if 

defiance leads, once again, to miscalculation, conflict, and loss. Like teenage hot-rodders 

bolstered by bravado, overconfidence, and a sense of invulnerability to physics, the 

United States and the PRC are embarked on a protracted game of maritime “chicken” 

that may, with little warning, turn horribly wrong. 

The possibility of a bilateral compromise is clear but would demand that both sides be 

prepared to give up something in exchange for self-restraint by the other. For example, 

Beijing could reserve what it perceives as its right to interdict foreign vessels that did not 

seek prior permission for military activities within the EEZ while allowing as a matter 

of sovereign courtesy those that provided advance notice to pass unhindered. Washington could reserve what it perceives as its right to conduct military activities in the EEZ 

without seeking prior permission from the coastal state while agreeing as a matter of 

sovereign prerogative to provide prior notification to the PRC. Having received advance 

notification, the PRC could “shadow” foreign vessels conducting military activities in the 

EEZ so as to evaluate better what data were being gathered, and the United States could 

refrain from remarking on or thwarting that countermeasure. 

By reserving maximal rights so as not to compromise on principle while acting with less 

rigidity so as to avoid conflict, both sides could—by mutual accommodation—contribute to a reduction in hostility and the cultivation of greater trust and mutual regard. 

Naturally, Beijing and Washington could adapt existing international codes of conduct 

for encounters at sea to suit better their mutual needs, or they could devise one anew.25
118 china maritime studies

That way, if a shift in political mood causes either to revert to their maximal claims, a 

clash might still be avoided by reference to formal protocols—such as the COLREGS—

devised to prevent conflict. 

So long as either side believes that it is entirely within its rights to continue on its present 

course, however, compromise and self-restraint are unlikely. To date, both sides have 

manifested an intention to remain astride their high horses, yielding little reason to 

expect rapid change from either. 

1. For insight to conceptual considerations of 

the contest between the United States and the 

PRC for supremacy in the international system, 

see Robert S. Ross and Zhu Feng, eds., China’s 

Ascent: Power, Security, and the Future of International Politics (Ithaca, N.Y.: Cornell Univ. Press, 

2008).

2. William J. Aceves, “The Freedom of Navigation 

Program: A Study of the Relationship between 

Law and Politics,” Hastings International and 

Comparative Law Review 19 (1995–96), p. 259.

3. “Luo Yuan: Sixiang zhibao jianyan Aobama bu 

ezhi Zhongguo yanlun” [Luo Yuan: Four Indicators Test Obama’s Speech about Not Containing 

China], Xinhua, 24 November 2009, news 

.xinhuanet.com/. 

4. “China Urges US to Reduce Military Surveillance 

Operations,” Xinhua, 27 August 2009, World 

News Connection. 

5. U.S. Senate, Testimony of Deputy Assistant 

Secretary Scot Marciel, Bureau of East Asian and 

Pacific Affairs, U.S. Department of State, before the 

Subcommittee on East Asian and Pacific Affairs, 

Committee on Foreign Relations, United States 

Senate, 111th Cong., 1st sess., 15 July 2009, available at foreign.senate.gov/. 

6. “Maritime Security and Navigation,” U.S. Department of State: Diplomacy in Action, www 

.state.gov/.

7. Ibid.; George Galdorisi, “The US Freedom of 

Navigation Program Preserving the Law of the 

Sea,” Ocean and Coastal Management 25, no. 3 

(1994), pp. 179–88.

8. Testimony of Deputy Assistant Secretary of Defense 

Robert Scher, Asian and Pacific Security Affairs, 

Office of the Secretary of Defense, before the U.S.-

China Economic and Security Review Commission, 

4 February 2010, www.uscc.gov/.

9. Striking examples of this may be found in Raul 

(Pete) Pedrozo, “Preserving Navigational Rights 

and Freedoms: The Right to Conduct Military 

Activities in China’s Exclusive Economic Zone,” 

Chinese Journal of International Law (2010), pp. 

9–29, and in Zhang Haiwen, “Is It Safeguarding 

the Freedom of Navigation or Maritime Hegemony of the United States? Comments on Raul 

(Pete) Pedrozo’s Article on Military Activities in 

the EEZ,” Chinese Journal of International Law

(2010), pp. 31–47.

10. “Summary: JFJB Interviews PLA Navy Court 

President on Legal Issues on EEZs,” Jiefangjun 

Bao Online, 22 June 2009, World News Connection.

11. Zhang, “Is It Safeguarding the Freedom of 

Navigation or Maritime Hegemony of the United 

States?” p. 38, citing Scott G. Borgerson, The 

National Interest and the Law of the Sea, Council 

Special Report 46 (New York: Council on Foreign 

Relations, 4 May 2009).

12. Zhang, “Is It Safeguarding the Freedom of 

Navigation or Maritime Hegemony of the United 

States?” p. 35.

13. Ibid., p. 39.

14. Gao Zhiguo, “Meiguo jujue pijun ‘Lianheguo 

haiyangfa gongyue’ de qian yinhouguo” [The 

Cause and Effects of America’s Refusal to Ratify 

the UNCLOS], Shanghai International Maritime 

Information and Documentation Network, 5 June 

2007, www.simic.net.cn/. 

15. Shen Dingli, “Jianyi Meiguo zai Nanhai yousuo 

shoulian” [Suggesting That the U.S. Restrain 

Itself a Bit in the South China Sea], Dongfang 

Zaobao, 13 March 2009, www.dfdaily.com/.

16. “[UNCLOS] Part V: Exclusive Economic Zone,” 

Admiral and Maritime Law Guide: International 

Conventions, www.admiraltylawguide.com/.

17. Alaska House of Representatives, Statement of 

Rear Admiral Arthur Brooks, Commander, Seventeenth Coast Guard District, to the Alaska House 

State of Affairs Committee on the United Nations 

Convention on the Law of the Sea, 23 March 2009, 

available at www.uscg.mil/.

Notes
military activities in the eez 119

18. Although the United States retains a decided 

advantage over the PRC in military capabilities writ large and has defied PRC preferences, 

there may come a point at which China is able 

to raise the cost to the United States of doing so 

to an unacceptable level. According to the U.S. 

Department of Defense, the People’s Liberation 

Army continues “to develop and field disruptive 

military technologies, including those for antiaccess/area-denial, as well as for nuclear, space, 

and cyber warfare.” U.S. Defense Dept., Military 

Power of the People’s Republic of China, 2009

(Washington, D.C.: March 2009), pp. i, vii, 13, 

20–25, 47–48.

19. In the context of a spirited debate, there is one 

point—the expectation that the United States 

should remain a Pacific power—on which two 

scholars representative of the two ideological 

camps seem to agree. See Aaron Friedberg and 

Robert S. Ross, “Here Be Dragons: Is China a 

Military Threat?” National Interest 103 (September/October 2009), pp. 19–34.

20. Information Office of the State Council of the 

People’s Republic of China, China’s National 

Defense in 2008 (Beijing: Foreign Languages, 

January 2009), pp. 4–5.

21. Ibid., p. 6.

22. See also Pedrozo, “Preserving Navigational Rights 

and Freedoms,” p. 24.

23. “The Imperial Rescript Relating to Withdrawal 

from the League of Nations, Proclaimed on 

March 27, 1933,” Ibiblio: The Public’s Library and 

Digital Archive, www.ibiblio.org/.

24. Agreement between the Department of Defense of 

the United States of America and the Ministry of 

National Defense of the People’s Republic of China 

on Establishing a Consultation Mechanism to 

Strengthen Military Maritime Safety, 19 January 

1998, available at www.fas.org/.

25. Pedrozo, “Preserving Navigational Rights and 

Freedoms,” p. 27.
Abbreviations and Definitions

A ABE-LOS Advisory Body of Experts on the Law of the Sea

ADIZ air-defense identification zone

AGI surveillance ship

ATS air traffic services

C CDEM construction, design, equipping, and manning

COLREGS International Regulations for Preventing Collisions at Sea

E EEZ exclusive economic zone

F FIR flight information region

FON Freedom of Navigation (Program)

FSI [IMO Sub-Committee on] Flag State Implementation

I ICAO International Civil Aviation Organization

IMO International Maritime Organization

INCSEA U.S.-USSR Prevention of Incidents on and over the Seas 

 agreement

IOC Intergovernmental Oceanographic Commission

J JMSDF Japan Maritime Self-Defense Force

L LOSC Law of the Sea Convention [also UNCLOS] 

M MARPOL 73/78 International Convention for the Prevention of Pollution 

 from Ships

MMCA Military Maritime Consultative Agreement

MSC Military Sealift Command
military activities in the eez 121

MSR marine scientific research

N NATO North Atlantic Treaty Organization

1998 EEZ/CS Law Law of the PRC on the Exclusive Economic Zone and the 

 Continental Shelf

O ONR Office of Naval Research

P PICES North Pacific Marine Science Organization

PLA People’s Liberation Army

PLAN People’s Liberation Army Navy

PRC People’s Republic of China

PSSA particularly sensitive sea area

R R/V research vessel

S SAR [International Convention on Maritime] Search and 

 Rescue [1979]

SMS special-mission ship

SOA State Oceanographic Administration

SOLAS [International Convention for the] Safety of Life at Sea 

 [1974]

STCW 1978 [International Convention on] Standards of Training, 

 Certification and Watchkeeping [for Seafarers, 1978]

T TMT transfer of marine technology

U UN United Nations

UNCLOS United Nations Convention on the Law of the Sea [also 

 LOSC]

UNCLOS III Third United Nations Conference on the Law of the Sea
122 china maritime studies

UNESCO United Nations Educational, Scientific and Cultural 

 Organization

UNIDIR United Nations Institute for Disarmament Research

USNS United States Naval Ship

W WMO-IOC World Meteorological Organization–Intergovernmental 

 Oceanographic Commission
About the Contributors

Peter Dutton is associate professor of strategy and international law in the China Maritime Studies Institute in the Center for Naval Warfare Studies of the Naval War College, where he was formerly associate professor of joint military operations. He served 

in the Navy’s Judge Advocate General’s Corps and as a Naval Flight Officer, retiring 

in 2006 with the rank of commander. He is also on the faculty of the Marine Affairs 

Institute at the Roger Williams University School of Law.

Maj. Gen. Peng Guangqian, PLA (Ret.), is deputy secretary-general of the China 

Committee for National Security Policy Studies in Beijing.

Raul (Pete) Pedrozo is an associate professor at the Naval War College in the International Law Department of the Center for Naval Warfare Studies. Previously, “Pete” 

Pedrozo served in the Navy’s Judge Advocate General’s Corps as staff judge advocate 

for Commander, U.S. Pacific Command, as Special Assistant to the Under Secretary 

of Defense for Policy, and as the head of the Navy’s International and Operational Law 

Division. He retired in 2008 with the rank of captain.

Yu Zhirong is deputy chief captain of the East China Sea Corps of the China Marine 

Surveillance Forces in Shanghai, People’s Republic of China.

Lt. Col. Andrew S. Williams, USAF, is the staff judge advocate for the 355th Fighter 

Wing, Davis-Monthan Air Force Base, in Phoenix, Arizona. He is the former Chief of 

Air and Space Law for the Operations and International Law Directorate at Headquarters, U.S. Air Force. 

Wu Jilu is an official at the China Institute for Marine Affairs at the State Oceanographic Administration of the People’s Republic of China, in Beijing.

Cdr. James Kraska, JAGC, USN, is the Howard S. Levie Chair of Operational Law 

and professor of international law at the Naval War College in the International Law 
124 china maritime studies

Department of the Center for Naval Warfare Studies. He was formerly a legal adviser 

for the Joint Chiefs of Staff. He is also a guest investigator at the Marine Policy Center, 

Woods Hole Oceanographic Institution, and a senior fellow at the Foreign Policy 

Research Institute.

Xue Guifang (Julia) is director and professor at the Institute for the Law of the Sea, 

Ocean University of China, in Qingdao.

Alan M. Wachman is associate professor of international politics at the Fletcher School 

of Law and Diplomacy at Tufts University in Medford, Massachusetts. He is the author 

of Why Taiwan? Geostrategic Rationales for China’s Territorial Integrity, published in 

2007 by Stanford University Press.