This is one of the more controversial Guidelines. It uses language from the innocent passage regime (Article 19(1)) that which is not "prejudicial to the peace, good order or security of the coastal State." This phrase includes (Article 19(2)):

 However, a careful reading of this Guideline will reveal that this application of innocent passage language is qualified in several significant ways. First the article reaffirms the freedoms of navigation and overflight in the EEZ. Second, it uses exhortatory language, i.e., "should avoid". This is in the interest of avoiding misunderstanding, suspicion and conflict. And third, it qualifies the phrase "prejudicial to the peace, good order or security of the coastal State" by the word "unreasonably". Thus the whole phrase becomes essentially another interpretation of "reasonable regard" or "due regard".

　

 In introducing the due regard portion of the Revised Single Negotiating Text, the Chairman of the Second Committee stated⁹³:

 But this is too "simple" a statement, for the rights of the coastal State are much more than those related to resources. It does demonstrate, however, that the "due regard" clause was generally understood as the non-infringement of the coastal State's rights.

　

 As for State practice on this issue, the United States has made the following clarification on the meaning of the "due regard" and "reasonable regard⁹⁵" standards, between which the US finds no substantive difference, within the context of a similar provision with respect to the exercise of freedom of the high seas under Article 87:

 Although this statement relates to the high seas via Article 87, a similar explanation might be given with regard to Article 58(3) and presumably Article 56(2). In any case, the essential element of the "due regard" standard, according to the United States, is the duty to refrain from activities that unreasonably interfere with the exercise of the rights of the coastal State (and vice versa).

　

 Commentators have given various examples of what would constitute cases where foreign States fail to have due regard to the rights and duties of the coastal State in its EEZ. These are:

(1) A weapons exercise that does significant damage to a valuable natural resource being exploited by the coastal State⁹⁷;

(2) A military activity that constitutes interference with the peaceful use of the sea, for example, by denying access to traditional fishing grounds or creating hazards to commercial fishing⁹⁸;

(3) Military activities that potentially interfere with or harm the interests of the coastal State⁹⁹;

(4) Military exercises with the use of weapons or explosives¹⁰⁰.

　

 China appears to interpret Article 58 to require foreign users of the EEZ to refrain from any activities "which endanger the sovereignty, security and national interests of the coastal countries." This is part of the Chinese position reportedly presented in connection with the US EP-3 incident of 1 April 2001¹⁰¹. Thus, according to China, the "due regard" rule of Article 58 involves not only the rights of the coastal State under Article 56 but also its interests relating particularly to security.

　

 Clearly opinions are widely divided as to the nature and degree of interference these activities cause, from actual significant damage to resources to potential interference with the coastal State's rights and interests, which could include security interests. Thus another way this Guideline may be interpreted is that it does not discourage activities that prejudice the peace, good order or security of the coastal State as long as they are not "unreasonable." What constitutes "unreasonableness" may be interpreted differently by different parties and a using nation should have knowledge of the coastal State's interpretation and in that context try to avoid provocative behavior.

 This statement is self-evident and is supported by Article 56(1a) and Article 58(3). Article 56 (Rights, jurisdiction and duties of the coastal State in the exclusive economic zone).

　

"1. In the exclusive economic zone, the coastal State has:

(a) sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the sea-bed and of the sea-bed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds."

　

 Article 58 (Rights and duties of other States in the exclusive economic zone).

　

"3. In exercising their rights and performing their duties under this Convention in the exclusive economic zone, States shall have due regard to the rights and duties of the coastal States and shall comply with the laws and regulations adopted by the coastal State in accordance with the provisions of this Convention and other rules of international law in so far as they are not incompatible with this Part."

　

 Thus, this Guideline is essentially a rewording of the "due regard" obligation although it is softened by using the exhortatory "should" rather then the obligatory "shall" which appears in Article 58(3).