Today’s post is by my friend, Dr. James Kraska, one of the world’s foremost experts in maritime law. At my invitation James wrote the essay below as an overview of his longer piece just published by the U.S. Naval War College entitled “The Obligation of ‘Due Regard’ in the EEZ During Armed Conflict at Sea.“
So what’s an Exclusive Economic Zone (EEZ)? The National Oceanic and Atmospheric Administration (NOAA) explains:
The concept of an exclusive economic zone (EEZ) was adopted through the 1982 United Nations Convention on the Law of the Sea. Under international law, within its defined EEZ, a coastal nation has:
Sovereign rights for the purpose of exploring, exploiting, conserving, and managing natural resources of the seabed, subsoil, and waters above it.
Jurisdiction as provided for in international law with regard to the establishment and use of artificial islands, installations, and structures; marine scientific research; and the protection and preservation of the marine environment.
Other rights and duties provided for under international law.
As James points out, EEZs encompass 38% of the world’s oceans. Here’s how that translates into a map (according to Wikipedia!)
Wikipedia
As you can see, the ability to conduct operations in these areas during armed conflict would be a very serious question for naval commanders and one that, as James points out, is often misperceived. Fortunately, we have his expertise to clarify this issue.
Naval Operations in the EEZ During Naval Warfare
by James Kraska*
There is a common misperception in international maritime law that the peacetime rules in the law of the sea continue to apply during periods of armed conflict to materially affect the law of naval warfare.
Some rules of customary law of the sea, including the 12-mile territorial sea and the rights of innocent passage, transit passage, and high seas freedoms, persist for neutral states, and for belligerents as against neutral states. However, the rules reflected in the United Nations Convention on the Law of the Sea (UNCLOS) form a general peacetime regime (lex generalis). During the negotiations for UNCLOS, it was universally agreed that the treaty would only cover peacetime rules.
Concerns about military uses of the oceans were diverted to separate negotiations that resulted in the seabed nuclear treaty. The general regime of UNCLOS cannot alter or change the specific rules of the specialized legal regime (lex specialis) in the law of naval warfare if the two are in conflict.
Exclusive Economic Zone
One of the most compelling examples is the mistaken belief that the peacetime rule of “due regard” for the coastal States’ resource rights in the exclusive economic zone (EEZ) or on the continental shelf somehow binds belligerent naval forces during armed conflict at sea.
The rule on due regard is set forth in Article 58. Article 58(1) states that ships and aircraft of all States are entitled to freedom of navigation and overflight in the EEZ… and “other internationally lawful uses of the sea related to these freedoms,” such as those associated with the operation of ships and aircraft.
These rights and freedoms are qualified by Article 58(3), which requires States to exercise due regard to the rights and duties of the coastal State in accordance with the other provisions of UNLCOS in so far as they are not incompatible with the other rules applicable to the EEZ.
Despite the fact that UNCLOS was specifically negotiated to cover only peacetime operations, this provision has been advanced as an effort to progressively develop the rules governing naval warfare.
Rule 34 of the San Remo Manual, for example, states: If hostile actions are conducted in the [EEZ] or on the continental shelf of a neutral State, belligerent States shall, in addition to observing the other applicable rules of the law of armed conflict at sea, have due regard for the rights and duties of the coastal state,” to the living and non-living marine resources.
There is no evidence that States intentionally intended to impose this new restriction on belligerent naval operations in the law of naval warfare. While some military manuals appear to have copied the provisions of the San Remo Manual without considering how they might apply in the real world, there is no case where a naval commander of any nation applied this rule in an actual targeting decision.
Does the peacetime standard of care of “due regard” in EEZs apply during armed conflict?
EEZs encompass some 38% of the world’s oceans. The question whether the peacetime standard of care of “due regard” applies has a great practical impact because coastal States could demand naval forces engaged in combat at sea in this vase area must exercise some level of care for marine resources, such as coral reefs.
This new rule would create an additional and limiting factor for commanders engaged in conflict at sea. Not only would all the normal targeting requirements apply, but naval forces would also owe a level of due regard to protect schools of fish or seabed oil deposits from the effects of their operations.
The lex specialis rights of belligerent states to conduct operations in the law of naval warfare.
The issue explained in more detail in a recent article in International Law Studies and is clarified in §4.1.2.1 of The Newport Manual on the Law of Naval Warfare. The article suggests that the lex generalis EEZ regime in the law of the sea does not supersede the lex specialis rights of belligerent states to conduct operations in the law of naval warfare.
Neutral coastal states cannot enforce rights derived from UNCLOS to expand their jurisdiction over belligerent operations. The lex generalis rules in the law of the sea do not apply during armed conflict at sea if the peacetime rules are inconsistent with the wartime rights of belligerent States.
Both the San Remo Manual and The Newport Manual are works of scholarship that seek to explain the law of naval warfare.Neither volume represents a binding instrument, but I suggest that the latter is a more accurate reflection of lex lata or law as it currently exists and is practiced by States.
Regarding this issue, the San Remo Manual promotes a view that is lex ferenda, or a normative argument for what the authors believe the law should be. Even States party to UNCLOS, however, never discussed or likely even considered that the treaty would establish a new limiting rule in the law of naval warfare.
Belligerent forces owe neutral coastal States an obligation to exercise due regard during armed conflict at sea, not for its EEZ rights, but rather pursuant to a duty in general international law to deconflict activities at sea and in international airspace for the purpose of safe operation of ships and aircraft sharing the global commons.
About the Author:
James Kraska is the Charles H. Stockton Professor of International Maritime Law at the U.S. Naval War College. He is visiting professor of law and John Harvey Gregory Lecturer on World Organization at Harvard Law School. He has served as visiting professor of law at the College of Law, University of the Philippines, visiting professor of law at Gujarat National Law University, Mary Derrickson McCurdy Visiting Scholar at Duke University Marine Laboratory and fellow-in-residence at the Marine Policy Center, Woods Hole Oceanographic Institution.
Disclaimers
* The views are personal to the author and do not necessarily reflect the official policy or position of the U.S. Naval War College, U.S. Navy or the Department of Defense.
The views expressed by guest authors do not necessarily reflect my views, those of the Center on Law, Ethics and National Security, or Duke University. See also here.
Remember what we like to say onLawfire ® : gather the facts, examine the law, evaluate the arguments – and then decide for yourself !
Related