Freedom of navigation of warships in foreign EEZs: a right recognized by the United Nations Convention on the Law of the Sea

The creation of the Exclusive Economic Zone (EEZ) is widely regarded as one of the major achievements of the United Nations Convention on the Law of the Sea (hereafter the Convention), “perhaps the most significant outcome of the Third United Nations Conference on the law of the sea“. The existence of the EEZ, a space already claimed by the States since the 1960s, was enshrined in the Convention entered into force in 1994.

The Convention consecrates sovereign rights to the coastal State to exploit and manage resources in its EEZ, as well as jurisdiction over marine scientific research (MSR), establishment of installations and artificial islands and protection of the marine environment. The coastal State has an exclusive right to exploit this space for economic purposes and thus can benefit from the resources that its waters contain, up to 200 nautical miles from the baselines.

Marine scientific research in the Exclusive Economic Zone

The coastal State has jurisdiction in its EEZ over marine scientific research and can therefore regulate it. For foreign vessels wishing to conduct MSR in this area, the Convention establishes the principle of coastal State consent.

This need for consent, coupled with the absence of a definition of MSR in the Convention, can give rise to abuse. In order to restrict the activities of foreign military or State vessels in their EEZs, some States may be tempted to invoke MSR to arrogate them the right to authorize such activities. While consent to MSR in the EEZ remains an important contribution of the Convention, States should not use it to impede the free movement of ships, State ships or warships in the EEZ.

The principle of free navigation in the EEZs

Indeed, the Convention expressly establishes the principle of free navigation for all States in the EEZ. It is therefore possible for a ship to travel in any area in EEZ; this also applies to warships, to the extent that there is no provision in the Convention to qualify this principle of freedom of navigation in the EEZ. Considering that the circulation and military activities of warships in EEZ could be subject to prior notification and/or authorization is clearly a restriction on the freedom of navigation, which is contrary to the Convention.

Moreover, the provisions of the Convention relating to the high seas apply to the EEZ, insofar as they are compatible with the provisions relating specifically to the EEZ. On the high seas, the Convention’s freedom of navigation rule includes the right to carry out military manoeuvres and exercises, without any States questioning that point.

Therefore, since the regime of the high seas is applicable to the EEZ as mentioned above, it logically follows that warships can sail in the EEZs without any type of restriction toward their activities and navigation.

Despite this, some States in their EEZs significantly increase their surveillance and weapons capabilities, and disrupt the activities of foreign warships. These areas are thus becoming subject to excessive restrictions on the freedom of navigation for every States. It contributes to illegally “extend territoriality under the EEZ regime”. Some States giving themselves more rights on these spaces than the Convention allows them.

The regime of the EEZ consecrated by the Convention is one of the best global compromise as it provides a welcome balance between competing State claims, securing resources exploitation by the coastal State and ensuring freedom of navigation for every States.