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The differences in the interpretation of the UNCLOS on this subject have in fact led to some unfortunate incidents, causing death and lost of properties and military aircraft. Such incidents include those between China and the United States near Hainan and between Japan and what turned out later to be the intelligence military vessel of North Korea in the Japanese EEZ. In view of the un-clarity of the provisions of UNCLOS regarding this matter, it would be necessary to develop a common understanding or some guidelines on this matter bilaterally, regionally, or internationally if possible.
Taking into account: (1) the ‘sovereign rights’ of the coastal states in exploiting and managing the living resources of their EEZ as well as their ‘jurisdictions’ with regard to artificial islands, installations and structures, and the conduct of marine scientific research as well as the protection and preservation of the marine environment in their EEZ, as stipulated in Article 56 of UNCLOS; (2) that all states enjoy the freedoms of navigation and over-flight in the EEZ in accordance with Article 58 of UNCLOS, and (3) that many provisions of the UNCLOS regarding high seas are also applicable to the EEZ, particularly Article 88 to 115 and other pertinent rules of International Law ‘in so far as they are not incompatible’ with the sovereign rights and jurisdictions of the coastal states, the following points may be used as basis for common understanding or some guidelines regarding military and intelligence gathering activities in the EEZ of other countries:
1. Some coastal states may already have their national/unilateral legislation with regard to military and intelligence gathering activities, including military exercises, by foreign military vessels and aircraft in their EEZ. If so, those states should make the legislation as transparent and as widely known as possible, including to the military authorities of other countries that are using or navigating their EEZ frequently. The dissemination or the receipt of the legislation by other countries should not and would not constitute recognition or refusal to recognize by the receiving states of the legality of the legislation, unless specifically stated by the receiving states or authorities, one way or the other.
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