Op-Ed Contributors

Limitations of laws of the sea

By Jin Yongming (China Daily)
Updated: 2010-08-24 09:49

The series US-Republic of Korea (ROK) military exercises has, for justified reasons, caused widespread concern in China. The scale and non-peaceful purpose of the joint drill, conducted perilously close to China' maritime border, make it different from normal military exercises.

International disputes should be settled through peaceful dialogues within the framework of international laws and conventions, not by saber rattling. But the media in China should not fan nationalist sentiments over the drill without providing background information on the laws of the sea. Some vague reports may mislead the public that the joint drill was conducted in China's territorial waters, which is impossible.

The waters on the landward side of the baselines of the territorial sea of China constitute its internal waters. The breadth of the territorial sea of China is 12 nautical miles, measured from the baselines of the territorial sea, which is determined by the UN Convention on the Law of the Sea (called Convention hereafter). A country's sovereignty extends to the air space over the territorial sea, as well as its bed and subsoil. And the waters of archipelagic countries extend to an adjacent belt of sea, described as the territorial sea.

The laws of the sea don't include any concepts or terminologies of military drills, which incidentally need a large area of a sea to conduct and forces all other maritime activities to be suspended.

The Convention on the High Seas (1958) guarantees freedom of navigation, fishing, laying submarine cables and pipelines, and flying over the high seas to all countries, coastal or landlocked. These freedoms, and others which are recognized by the general principles of international law, should be exercised by all states with reasonable regard to the interests of other states in their exercise of the freedom of the high seas. Plus, the high seas should be reserved for peaceful purposes.

Though holding military drills has long been regarded as a traditional freedom on the high seas, the international community is yet to agree on a clear specification. And many countries use this freedom to flex their military muscles on the high seas.

So, we should focus on military drills in exclusive economic zones. An exclusive economic zone is an area beyond and adjacent to the territorial sea. A country's exclusive economic zone cannot extend beyond 200 nautical miles from the baseline from which the territorial sea is drawn.

In its exclusive economic zone, a country has the sovereign right to explore and exploit, and conserve and manage the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for economic exploration and exploitation of the zone, such as the production of energy from the water, currents and winds.

The international community has not agreed on how a military exercise in exclusive economic zones should be viewed. Some strong sea powers adamantly cite Article 58 of the Convention to say they can hold military drills without seeking permission from other coastal countries.

Some other countries argue a military drill should be judged on the basis of its purpose and nature. Drills that include firing torpedoes and navy artilleries are banned. The legally accepted exercise model is interpreted only as maritime activities involving warships. As for exercises with weapons and explosive materials, the organizers have to negotiate with coastal countries beforehand. The international community has not agreed on the legitimacy of military drills or missile trials that hamper other countries' use of a large area of a sea.

The third group of countries supposes that the Convention is not clear on the exclusive rights of surrounding coastal countries to permit another country to conduct military exercises involving weapons near their waters. The difference in understanding of the problem of naval military drills has long been a controversial issue.

In this sense, the peaceful use of the sea should be a universal code. A proper analysis of military exercises in exclusive economic zones should be based on a drill's intentions and the principles of exclusive economic zones. Coastal countries have legal obligations and rights over the natural resources in their exclusive economic zones. Military drills held by a country (or countries) in a special zone should not interfere with another (coastal) country's rights.

Some of the big sea powers dodged a detailed discussion on maritime military activities at the 3rd UN Conference on the Law of Sea, silencing some developing countries' voices to exercise their rights in their exclusive economic zones. That's why the Convention is apparently defective. Still, Article 59 of the Convention can serve as a guiding principle to settle disputes in exclusive economic zones.

If a conflict of interest arises between a coastal country and any other country or countries, it should be settled on the basis of equity. The settlement should take into account the respective importance of the interests of the parties involved and that of the international community.

Thus, China can protest against the military drill in the territorial sea and exclusive economic zone of the ROK because it posed a potential threat to China's national security.

When it comes the military drill in China's exclusive economic zone, the government should voice its concern and demand that the other parties respect its national security and legitimate rights in its exclusive economic zones. A country holding a military drill is obliged to inform the other countries around the coast about the area, scale and nature of its drill in advance.

The dispute over military drills between China and the US can be settled by strengthening mutual trust. If the two countries can build a maritime security negotiation mechanism or reach an agreement in dealing with maritime emergencies, not only can disputes be avoided, but also Sino-US ties will be consolidated.

As far as military drills in China's exclusive economic zones are concerned, Beijing can also start strong protest campaigns for the drafting of a common law to plug the loopholes in the Convention. According to Article 313 of the Convention, China can propose an amendment related to military drills. And not being a contracting party to the Convention, the US will face more pressure and may be pushed on the back foot.

The author is a law scholar with Shanghai Academy of Social Sciences and Chinese Maritime Development Research Center.