Common Cents

EEZ in the Law of the Sea

Ralph Murphy

(5/2) Concerns regarding both maritime, commercial interests as well as defense issues have recently drawn attention to US Navy operations in the South China Sea. Encounters, including intercept and harassment by Chinese Naval units and fishing boats of the USNS Victorious (AGOS-19) and USNS Impeccable (AGOS-23), were based on varied interpretation of legal control in maritime areas. The issue draws focus on the difference between a "territorial water" that is 12 nautical miles (22.2 kms, 13.8 miles) from shore and the more contentious Exclusive Economic Zone (EEZ) that is defined as 200 nautical miles from shore. It overlaps and passes the territorial waters. Sovereign control of the EEZ is the agreed upon domain of the contiguous nation. An EEZ is less clearly defined and poorly enforced than are territorial waters. It affords very similar sovereign control as to mining and shipping rights if not checked. This can and has led to real problems and conflicts.

The South China Sea issue is further complicated by the lack of an accord between regional powers as to the actual, national ownership of many of the islands. Fighting has occurred between China and Vietnam in the Spratly Island group. Also, Malaysia, Taiwan and the Philippines are contesting ownership of the Paracel Islands that are in the area. At stake is national ownership of potentially extensive natural resources to include minerals and maritime wealth. Coastal nations control them if the EEZ can be afforded the legal access to guard the region. Whoever establishes ownership of the islands also controls the territorial waters and the EEZ surrounding them.

US trade in shipping is said to account for over $1.2 trillion in the broad, South China Sea region, and the US Navy is concerned with its safety. International law as a field of social discipline is still evolving. It is poorly articulated as stemming from "customs, consistent state practices, and treaties". It is not well-enforced nor grounded as to codes or even binding precedents. When a concern cannot be settled between competing nations as with the maritime standards, it can be sent to The Hague or the United Nations legal affiliate- the International Court of Justice (ICJ). This court can issue an "advisory opinion", but it is not binding unless the conflicting groups agree. The laws, which are enforced by the ICJ and Security Council, rarely deal with maritime concerns, but rather include state crimes of aggression. Even those can be contended under the present system.

There have been a series of conventions, at the UN's prompting, since 1958 concerning the Law of the Sea. Almost all signatories to the last round- the United Nations Conference on the Law of the Sea (UNCLOS 3) of 1982, agreed that the territorial waters of total state control should extend no further than 12 nautical miles from shore. A few want to control less water space and 5 developing nations to include Peru and Somalia want the EEZ as their territory. Again, the laws are almost unenforceable unless major powers such as United States’ economic and defense forces use associated leverage or the former colonial powers use their cultural influence. That leaves the concerned nations to self-police the law.

The US Navy is a case in point as to the difficulty and perplexities in dealing with a standard that can either go for or against you when promoting EEZ control. Naval officials contended they were enforcing legal resolve in navigating within 12 miles of declared Chinese islands and victimized in 2009, and 2011 incidents both at sea and associated air space above the regions. When Chinese craft drifted to within 80 miles of the Philippines the Navy stated that subsequent action taken was for treaty defense as permitted by UNCLOS. But, that related to the EEZ beyond the 12-mile territorial waters. The law has to be "nailed down" to avoid confusion and further avoid violence.

As the EEZ evolved- attempts again were made in 1958, 1960 and 1982 through the United Nations Law of the Sea conventions and there is now relative harmony with the accord. But, arbitrary, often self- serving enforcement continues as it is still so vague as to legal norms. At present coastal states have "control of all economic resources within its EEZ including fishing, marine life, oil exploration, and any pollution of those resources". It amounts to state maritime, water control as the rule evolved and that can even extend to the shipping and air traffic as well. In one accord the states "cannot prohibit passage or loitering above, on, or under the surface of the sea." But, the text then says that this applies only if the event is not subject to those "within the laws and regulations adopted by the coastal state." In conflict then- the coastal state can therefore write its own laws to cover the EEZ- effectively neutralizing the treaty's legal mandate.

Ideally, the system could return to the 12 nautical mile, sovereign control widely adopted about the time of the 1945 Truman proclamation. Prior to that most states had 3 mile territorial waters but the 12 miles appears reasonable, as developed- with increased defense needs and access to regional maritime wealth with improved technology. If two maritime waters overlap within the 12 miles there could be a mid point at each border as is now enforced, but any jurisdiction beyond the 12 miles would have to be administered by an effective UN just to the treaty role as regards international waters. The self-policing at present presumes a working standard- even a moral plane that almost no state now projects- although many probably did- until recently.

If the laws are predictably codified they can be better worked with. US altercations with powers in the Far East can be avoided or better justified with a shared legal standard. At the present time the international law relevant to the accords is inconsistently applied and poorly developed. Conficts have been minor to date, but could become more dangerous as nations deploy maritime, nuclear weapons systems in contentious areas, and the rules of engagement remain vague. Major incidents could occur if the rights and duties for the EEZ regions are not better defined.

Ralph Murphy is a former member of the CIA Headquarters Staff in Langley, VA.