This article introduces the Principles for Building Confidence and Security in the Exclusive Economic Zones of the Asia-Pacific, compiled by the Ocean Policy Research Foundation based on research conducted in fiscal 2012 and 2013. The Principles were drafted to revise the Guidelines for Navigation and Overflight in the Exclusive Economic Zone,[1] issued by the OPRF in 2005.

1. Background and Objectives

Countries have different interpretations of the provisions of the 1982 United Nations Convention on the Law of the Sea concerning the use of ships and aircraft to conduct surveys of resources, hydrographic measurements, military exercises, and data collection in the exclusive economic zone (EEZs) of other countries. Such differences have created discord between coastal and user States, not only hindering the freedom of navigation but also leading to the destabilization of the maritime security environment.

The issue gained prominence in 2001 when an American EP-3 electronic reconnaissance aircraft collided with a Chinese fighter jet in the airspace above China’s EEZ off the coast of Hainan Island. At the time, Chinese Marine Surveillance vessels were frequently entering into Japan’s EEZ without prior notification—as stipulated in a 2001 note verbale between Japan and China—to conduct maritime survey activities.

The OPRF, recognizing the need for a common international understanding of the articles prescribing the conduct of ships and aircraft in the EEZs of other countries sponsored four international conferences[2] between fiscal 2003 and 2005 to draft the Guidelines for Navigation and Overflight in the Exclusive Economic Zone. The Guidelines, representing the collective views of the participants, were subsequently presented to relevant organizations and research institutes both in Japan and around the world. While the Guidelines were introduced in a number of foreign journals and attracted considerable attention, they did not lead to an internationally recognized arrangement.

In 2009, four years after the Guidelines were issued, the USNS Impeccable ocean surveillance ship was harassed by Chinese trawlers and government ships in China’s EEZ south of Hainan Island. Despite the obvious need for an agreement like the Guidelines, as demonstrated by the 2001 EP-3 collision, conceivably there were aspects of the document that were unacceptable to some countries. Another thought was that the international situation had undergone great changes since the Guidelines were drafted: In 2008, a year before the Impeccable incident, the Chinese Navy regularly began conducting activities in the western Pacific. Thus there had been an undeniable shift in the balance of military power in East Asia and the western Pacific since the issuance of the Guidelines in 2005. Another major change in the security environment was the intensification of disputes in the East and South China Sea involving the dominion of islands and establishment of maritime boundaries. There was a need to address such changes before the Guidelines would be embraced by the international community.

We identified four such shifts, namely, (1) the increasing advance of Chinese naval vessels into the open sea, (2) intensification of disputes over the dominion of islands and establishment of maritime boundaries in East Asian waters (South China Sea and East China Sea), (3) coercive behavior of China Coast Guard and other Chinese law enforcement vessels toward other countries’ ships in East Asian waters, and (4) measures to restore US presence in the region in response to these developments and changing perceptions among the member states of the Association of Southeast Asian Nations regarding naval activities in EEZs.

In response, the OPRF implemented a research project over fiscal 2012 and 2013 to review and revise the Guidelines to better reflect the changing circumstances.

2. Issues Considered

Many coastal states, especially those in Asia that experienced colonization, claim that activities by foreign military forces in their EEZ violate the UNCLOS provisions specifying that EEZ be reserved for peaceful purposes. The United States, Britain, and other traditional maritime states, meanwhile, believe that the seas beyond territorial waters—including the EEZ—are free, in principle, and that military activities are allowed.

Around 2003–05, when the Guidelines were being drawn up, the biggest threats in the maritime domain were pirates around the Strait of Malacca and the islands of Indonesia and terrorism in the seas of the Middle East. The biggest destabilizing factors today—namely, disputes in the South China Sea and around the Senkaku Islands, as well as Chinese advances into the western Pacific—had not yet become prominent. For this reason, most of the Southeast Asian participants in the Guidelines discussions took the position of coastal states—that military and data collection activities by other states in the EEZ should not be recognized. The participant from China took a similar stance. The Guidelines thus sought to strike a balance between the views of both coastal and user States in identifying basic conduct, as legally prescribed by the UNCLOS provisions pertaining to the EEZ. As a result, the Guidelines admittedly failed to give enough attention to purely military considerations.

China today increasingly operates naval vessels and conducts data collection activities in other countries’ EEZs. Many Southeast Asian countries, particularly Vietnam and the Philippines, therefore, now welcome US naval operations in their coastal waters to counteract China’s coercive behavior in the South China Sea. A decade ago, a key topic at international conferences on maritime issues was the clarification of the legal status of the EEZ. For this reason, deliberations on the Guidelines were marked by lively debate on how the vaguely worded UNCLOS provisions on the rights and duties of coastal and user States should be interpreted.

Today, however, international conferences gloss over the ambiguities in UNCLOS and give, in what is regarded as a more realistic approach, greater attention to establishing international regimes for resource and environmental protection in the EEZ and to stabilizing the security environment through confidence-building measures and enhanced military transparency.

The OPRF’s attempt to create guidelines for conduct in the EEZ was the first in the world and may have been a factor in the potentially overly ambitious endeavor to be comprehensive, both in the scope of issues covered and the details examined. Consequently, it may have resulted in conduct in the EEZ being prescribed too narrowly.

In the light of the transformed security environment since the Guidelines were formulated, participants for the workshops in fiscal 2012 and 2013 to update the document were selected with a view to providing new perspectives on approaches to stabilizing the highly fluid security environment.

3. Project Overview and Results

During the first year of the project, an international drafting committee comprising a small number of core members met[3] to review the Guidelines and identify areas for revision. A draft outline was created, which was subsequently presented to relevant foreign organizations to gain their input.

In fiscal 2013, a second international meeting was held[4] to deliberate on the draft outline prepared the previous year and to draw up the Principles for Building Confidence and Security in the Exclusive Economic Zones of the Asia-Pacific as the final report of this project.

Principles was chosen for the title, rather than Guidelines, to avoid restricting activities in the EEZ more than necessary. The title also explicitly points to the importance of building confidence among the relevant parties.

The full text of the Principles can be found as Attachment 1.

A. Contents

The respective Table of Contents of the Guidelines and Principles are as follows:

The Principles has one fewer chapter, modifying the overly comprehensive nature of the Guidelines in both scope and detail. The issues addressed in the “Rights and Duties of the Coastal State” and the “Rights and Duties of Other States” of the Guidelines are dealt with in the chapters on “Maritime Surveillance” and “Military Activities” in the Principles, while “Suppression of Piracy and Other Unlawful Activities” was deleted based on the recognition that international antipiracy activities have now become quite common. Instead, “Due Regard in the EEZ” was added out of the belief that confidence-building was essential to reaching agreement on legal interpretations in the international security environment today. The chapter on “Provisional Arrangements” was also added in anticipation of future regional or bilateral agreements regarding the EEZ.

B. Military Activities

Military intelligence gathering activities and exercises in foreign EEZs are the biggest sources of friction among States, as demonstrated by the EP-3 and Impeccable incidents. Addressing this issue can thus be regarded as the chief aim of the Principles.

China appears to be employing a double standard as its naval activities rapidly expand geographically—advancing into the open sea—and become increasingly active. While China points to the concept of the peaceful use of the oceans in criticizing US intelligence gathering activities in its EEZ around Hainan Island, it seems to have no qualms conducting similar activities and exercises in Japan’s EEZ or around US bases on Guam. China, like the United States, has the need to gather foreign intelligence for its own national security. Lack of reliable information on the intentions and capacity of foreign forces can give rise to speculation and misinterpretation, which could have the dangerous consequence of escalating a dispute into open conflict. The key to avoiding such a scenario is enhancing transparency, which would also serve to promote trust. At the same time, activities by foreign forces in a State’s own coastal waters are certain to raise security concerns. Military exercises in the EEZ, moreover, could at times threaten the sovereign rights and jurisdiction of a coastal State to protect its maritime resources and the environment.

In the light of the above, the Principles outline the following regarding intelligence gathering activities (called “maritime surveillance” in the document) and military exercises in foreign EEZs.

1. Maritime surveillance may be conducted by States in areas claimed by other States as EEZ.

2. Military vessels and aircraft, and other government vessels and aircraft enjoy the right to navigate in, or fly over the EEZs of other States, and to engage in other internationally lawful uses of the sea associated with the operations of ships and aircraft.

3. In exercising their rights to conduct maritime surveillance in an EEZ, States should respect the sovereign rights and jurisdiction of the coastal State within its EEZ.

4. Ships and aircraft undertaking military activities in the EEZ of another State have the obligation to refrain from the threat or use of force against the territorial integrity or political independence of the coastal or any other State.

5. States intending to carry out a military exercise or maneuvers in the EEZ of another State are encouraged to inform the coastal and other States of the time, date and areas involved in the exercise (and if possible, invite observers from the coastal State) through timely Notices to Mariners and Airmen.

6. When within the EEZ of a coastal State, other States are encouraged to avoid military activities
—in areas rich in living or non-living resources;
—in areas of active resource exploration and exploitation;
—in marine parks or marine protected areas declared by the coastal State in accordance with internationally accepted standards; and
—in areas subject to ships’ routing and traffic separation schemes adopted in accordance with internationally accepted standards.

7. If there are high sea areas immediately adjacent to the coastal State’s EEZ, a State undertaking military exercises should, so far as is reasonable and practicable, limit them to these areas.

C. Public Communication Activities

In February 2014, the Principles was presented to the secretary general of the International Maritime Organization with the request that reference be made to the document when establishing relevant international arrangements. The OPRF will coordinate its activities with the experts who authored the Principles and actively seek opportunities to communicate its contents broadly to the international community.