Copyright (c) Ocean Policy Research Foundation 2006

 The Guidelines had their origins in discussions concerned with the increasing frequency and intensity of incidents involving foreign military vessels and aircraft in Asia's EEZs. It was realized that the US EP-3 and Bowditch incidents in China's EEZ, the North Korean spy boat incident in Japan's EEZ, Vietnam's protest of China's live fire exercises in its EEZ all had a common thread: disagreement over the regime guiding the conduct of military and intelligence gathering activities in foreign EEZs. Further, it was recognized that these incidents were a result of two conflicting trends---expanding navies and naval activities in the region, and enhanced marine awareness and jurisdictional enforcement by the region's coastal States. It was also recognized that another source of disagreement was the attempt of the 1982 United Nations Convention on the Law of the Sea (the 1982 UNCLOS) Articles 58(3) and 56(2) to balance coastal State and user State rights and its failure to define 'equity' and 'relevant circumstances' in Article 59¹. It was felt that if these terms remained undefined and States interpreted them individually in their own interests, incidents would continue and could threaten relations and even peace in the region. So some analysts considered what could or should be done to try to reach a consensus on these matters.

　

 After considerable discussion and consultation with networks in the Asia-Pacific and elsewhere, it was concluded that there was a need for an international dialogue to enhance mutual understanding of each nation's interpretations of the EEZ regime regarding military activities. Moreover, inspired by the November 2002 Declaration on a Code of Conduct for the South China Sea it was thought it might be possible to find sufficient areas of consensus to produce similar guidelines for military activities in EEZs.

　

 The East West Center (EWC) funded an exploratory workshop which was organized with the Center for Southeast Asian Studies in Bali in June 2002. The Bali dialogue produced several significant results. First of all it confirmed and expanded the rationale for the project and the goal of agreed guidelines. There were several components of this rationale.

　

 First was an understanding of the roots of this controversy as reflected in the negotiations of the 1982 UNCLOS and their continuity with the present day situation. Coastal states are concerned that uninvited foreign military activities in their EEZs could threaten their national security or undermine their resource sovereignty. And of course maritime powers such as the United States are concerned that their naval and air access and mobility could be severely restricted by what they see as creeping jurisdiction.

　

 Second, the recent incidents were indications of a deepening dialectic between Asian coastal states and maritime powers. Third, it became clear that as technology advances, misunderstandings regarding military and intelligence gathering activities in foreign EEZs are bound to increase. Fourth, it also became clear that the end of the Cold War and new threats such as the spread of weapons of mass destruction and the smuggling of drugs and humans would further encourage both coastal and maritime states to extend their control or surveillance beyond their territorial seas, in some cases to others' EEZs. In the aftermath of 11 September 2001, many nations, and the United States in particular, had increased their scrutiny of both military and commercial aircraft and ships approaching from far and near.

　

 And fifth, it seemed that there was some confusion and even double standards regarding the current regime and that there were stark differences of opinion as to operative 'rule'.

　

 Finally due to overlapping claims it was frequently not clear where one nation's jurisdiction ended and another's began. This was particularly so in Asia where newly claimed EEZs by recently independent nations, and fiercely disputed islands complicated political relations. These developments implied that certain UNCLOS provisions formulated 25 years ago in a very different political and technological context might be interpreted in the light of new circumstances.

　

 The second achievement of the Bali dialogue was the delineation of areas of agreement and disagreement. There were only a few areas of consensus, namely

　

1. that military activities in and above EEZs should not interfere with or endanger the rights of the coastal state to protect and manage its own resources and environment; and

2. that military activities should not involve marine scientific research.

　

 On the other hand, it was apparent that there were many areas of disagreement. Some of the disagreements related to different interpretations of the relevant UNCLOS provisions and some related to the means of attempting to resolve the disagreements, or whether there was even a need to do so. Indeed, some questioned the very need to create guidelines for military activities in EEZs.

　

 It was these areas of disagreement that became the focus of discussions over the next three meetings. At this point operational naval personnel began to become involved in the dialogue. It was also at this point that the Ocean Policy Research Foundation (OPRF) of Japan made a strategic decision to support the dialogue and interim research.

　

 The Tokyo Meeting was held in February 2003 under the co-sponsorship of OPRF and EWC. It covered differences and overlaps between marine scientific research and hydrographic surveys; differences between freedom of navigation in the EEZ and on the high seas; the meaning of key terms such as 'peaceful use'; the operational modalities of navies; and the implications of the events of September 11 and of new technologies.

　

 A significant contribution to the process was the confirmation that military and intelligence gathering activities in foreign EEZs were likely to become more controversial and dangerous. In Asia, this disturbing prospect reflects the increasing and changing demands for technical intelligence; the robust weapons acquisition programs, especially those increasing electronic warfare capabilities; and the widespread development of information warfare capabilities. Further, the scale and scope of maritime and airborne intelligence collection activities was expected to expand rapidly over the next decade, involving levels and sorts of activities quite unprecedented in peacetime. It was projected that these activities would not only become more intensive but that they would be more intrusive. They would generate tensions and more frequent crises; they would produce defensive reactions and escalatory dynamics; and they would lead to less stability in the most affected regions, especially in Asia. This knowledge made the task of developing guidelines for such activities more important and even urgent.

　

 On December 9-10, 2003, OPRF sponsored the Honolulu Meeting with the cooperation of the EWC. The agenda covered recent incidents, the PSI, interpretation of key terms used in the 1982 UNCLOS, the difference and similarities between hydrographic surveys and scientific research, and the means and manner of implementation and enforcement of any agreed rules. For the first time a draft set of guidelines for military and intelligence gathering activities in the EEZ was presented to the group.

　

 The Shanghai Meeting in October 2004 was co-sponsored by OPRF and the School of International and Public Affairs at Shanghai Jiao Tong University. The agenda items included recent incidents and developments, the Proliferation Security Initiative, the Regional Maritime Security Initiative, and a review of international arrangements and agreements on military activities in the EEZ. The meeting received and discussed several versions of draft guidelines.

　

 An integration of these drafts modified through consultation with group members produced the draft Guidelines deliberated at the OPRF-sponsored meeting in Tokyo in September 2005. This draft was debated until a consensus was reached. The result is reproduced herein together with a commentary² on each provision. Most important now is dissemination of the results and developing ways and means to convince governments to at least consider the Guidelines when planning and undertaking military activities in foreign EEZs.