In early December, the Shiyan-1 research vessel owned by the Chinese Academy of Sciences was expelled from the Indian Exclusive Economic Zone (EEZ) for operating there without India’s permission.
Shortly thereafter, China announced a new policy. “Institutions or individuals [wanting to do research in another country’s EEZ]… must comply with the United Nations Convention on the Law of the Sea (UNCLOS), obey the law of the country, follow the research programme approved by the coastal state, and shall not conduct scientific research in the waters under foreign administration without making application or without the application being approved.”
This domestic implementation of this UNCLOS provision improved its international image as a supporter of the existing “international order”. China has been severely criticized by the U.S. and others for violating certain UNCLOS provisions critical to freedom of navigation as well as refusing to recognize an UNCLOS mandated arbitration decision against it. https://www.scmp.com/news/china/diplomacy/article/3041693/china-steps-compliance-un-sea-law-after-ships-expulsion-india This step forward should be welcomed by the U.S. and others. But it also places China in dilemma and highlights yet another important difference between it and the U.S. regarding UNCLOS and the “international order.”
China and the U.S. have long disagreed –with kinetic consequences – over the regime of prior permission for marine scientific research (MSR) in China’s EEZ. China accuses the U.S. of violating its regime requiring prior permission for MSR with its military intelligence, surveillance and reconnaissance probes in its 200 nautical mile EEZ. But the U.S. holds that such hydrographic and military surveys – although undefined in UNCLOS – are nevertheless differentiated from MSR in the language of the Convention and thus exempt from the consent regime.
These disagreements have resulted in international incidents when China has tried to prevent US Navy survey vessels like the Bowditch and submarine hunters like the Impeccable from undertaking missions in its EEZ without its permission.
China and many other developing countries argue that these ISR surveys cannot be neatly differentiated from MSR and are in effect the same. They say that the very reason that the Convention’s consent regime was established for MSR in the EEZ is that information collected thereby may have economic value or may be used to undermine the security of the state. They point out that information collected by hydrographic and military surveys can and has had direct and indirect relevance for commercial exploitation of resources.
They claim that doing so without permission is an “abuse of rights” prohibited by UNCLOS , that is it is the use of a right for purposes for which it was not intended, or that interfere with the exercise of rights by another state. Specifically they argue that the ISR probes violate the UNCLOS provision that such MSR be used for peaceful purposes as well as China’s resource rights and environmental obligations in the EEZ. According to China, these actions constitute a violation of the UNCLOS mandated duty to pay “due regard” to the rights of the coastal state.
China argues further that the EEZ regime including the MSR consent portion is not customary international law as the US argues but was created sui generis by UNCLOS. It says that because the U.S. is not a party to UNCLOS, it has no legitimacy or credibility to unilaterally interpret particular provisions of this ‘package deal’ to its advantage.
The U.S. counters that although the means of data collection used in military surveys may sometimes be the same as that used in MSR, information from such activities, regardless of security classification, is not intended for use by the general scientific community, but exclusively by the military. https://books.google.com/books?id=qna1CwAAQBAJ&pg=PT81&lpg=PT81&dq=EEZ+Group+21,+Guidelines+for+Navigation+and+Overflight+in+the+Exclusive+Economic+Zone,+A+Commentary,+Ocean+Policy+Research+Foundation,+Tokyo,+Japan+2006.%5D&source=bl&ots=VkpKw-P2dC&sig=ACfU3U3u5ZOFqYt_ognWxbIQElLfIgl1Zg&hl=en&sa=X&ved=2ahUKEwj064WFhbnmAhXlOn0KHeNdDsIQ6AEwAnoECAkQAQ#v=onepage&q=EEZ%20Group%2021%2C%20Guidelines%20for%20Navigation%20and%20Overflight%20in%20the%20Exclusive%20Economic%20Zone%2C%20A%20Commentary%2C%20Ocean%20Policy%20Research%20Foundation%2C%20Tokyo%2C%20Japan%202006.%5D&f=false However, this ‘intent’ argument falters in the face of a plain reading of UNCLOS Article 258. It stipulates that “the deployment and use of any type of scientific research installation or equipment in any area of the marine environment shall be subject to the same conditions as are prescribed in this Convention for the conduct of marine scientific research in any such area.” This applies to the Bowditch – and the Impeccable – and means that their deployment of such equipment in a foreign EEZ requires the consent of the coastal state.
However this is where China may get hung on its own petard. It has engaged in passive intelligence gathering in the EEZs of Guam, Hawaii, Australia and Japan. If it is deploying ‘scientific instruments’ – such as listening devices –in others’ EEZs, it may be violating this principle as well. It might argue that since the U.S. is a non-party and the EEZ was created sui generis by the Convention, the U.S. does not have the right impose an MSR consent regime. But that argument would not hold for its activities in the EEZs of fellow UNCLOS parties Australia and Japan. Perhaps China will also argue that differences in scale, capabilities, techniques and objectives between it and the U.S. are so great as to be in different categories of acceptability and that China’s efforts are so passive and unintrusive as to meet the due regard requirement –while the US ISR probes do not.
However, it remains to be seen if and how China differentiates what it does in other EEZs from what US ISR probes do in its own EEZ. China may want to request that the U.S. reveal exactly what it is doing in China’s EEZ while explaining what it is doing in others’ EEZs so that all can evaluate the alleged equivalency and due regard arguments for themselves.