Traditionally the freedom of the high seas included their use for military maneuvers or exercises, including the use of weapons. This freedom has been incorporated in the 1982 UNCLOS, and it has been generally believed, particularly by maritime States, that this applies also to the EEZ. However, upon signing or ratifying the Convention, several States, including Brazil, Cape Verde, India, Pakistan, Malaysia and Uruguay declared that such military activities are not permitted in the EEZ without the consent of the coastal State¹¹². Sharply opposing declarations have been filed by Germany, Italy, the Netherlands and the United Kingdom¹¹³. The United States has also taken the position that "military activities, such as...launching and landing of aircraft, ... exercises, operations ... [in the EEZ] are recognized historic high seas uses that are preserved by Article 58¹¹⁴." The US Navy takes the view that the high seas freedoms include "task force maneuvering, flight operations military exercises, surveillance, intelligence gathering activities and ordnance testing and firing", and that "the existence of the EEZ in an area of naval operations need not, of itself, be of operational concern to the naval commander¹¹⁵."

　

 This Guideline simply restates the rights stipulated in Article 58(1). However it also suggests that this right is a qualified right as detailed in the provisions of Guideline V.

　

 This Guideline is complicated. The obligation to "use the ocean for peaceful purposes only" is a restatement of Article 88 applicable to the EEZ by reference to Article 58 (2). The obligation to refrain from threat or use of force is part of the definition of peaceful purposes. The "obligation" to refrain from "provocative acts" and the specific examples of such provocative acts provided should be considered exhortatory as are all the Guidelines. This language is an attempt to capture certain activities which are either reputed to occur or are possible future intended uses of the EEZ.

　

 Traditionally, intelligence gathering activities have been regarded as part of the exercise of freedom of the high seas and therefore, through Article 58 (2), lawful in the EEZ as well¹¹⁶. All major maritime powers have been routinely conducting such activities without protest from the coastal State concerned, unless they became excessively provocative. The US Navy expressly takes the view that such activities are part of the high seas freedoms¹¹⁷.

　

 This position appears to be facing increasingly serious challenges as new, highly-intrusive intelligence gathering systems are being developed and used by several military powers. Of particular concern are the increasing EW capabilities and the widespread attempts to develop information warfare (IW) capabilities. Airborne SIGINT missions are often provocative as visible efforts to penetrate the electronic secrets of the targeted country. Indeed, important aspects of regional SIGINT and EW capabilities may invite attack, or encourage pre-emption¹¹⁸. It appears that the provisions of the Convention are not adequate to regulate the use of these new EW and IW technologies by military vessels and aircraft.

　

 The United States regularly sends technologically advanced EP-3E surveillance planes along the coast of China to intercept communications and monitor coastal and offshore activities, including submarine movements, averaging about 400 such flights each year¹¹⁹. On April 1, 2001, two Chinese F-8 fighters flew up to greet the US plane and one of them collided with the EP-3E at a location about 70 nautical miles southeast of Hainan Island, destroying the Chinese plane (and killing its pilot) and damaging the EP-3E sufficiently to require it to make an emergency landing at Lingshui Airport on Hainan Island in China. China claimed that the US plane turned sharply and veered into the Chinese plane¹²⁰, but the United States contended that it was the Chinese plane that flew erratically, pointing out that the propeller-driven EP-3E has little maneuverability and is much slower than the F-8.

　

 China subsequently contended that the US flight "violated the United Nations Convention on the Law of the Sea, which stipulates that any flight in airspace above another nation's exclusive economic zone should respect the rights of the country concerned. Thus the US plane's actions posed a serious threat to the national security of China¹²¹". The Chinese statement went on to say that:

 In this instructive statement, the Chinese spokesperson acknowledged that the freedom of overflight exists over the EEZ, but also contended that this freedom must be balanced against the security interests of coastal States¹²³. In another article, China's position was explained as follows:

 This article went on to explain that:

 In June 2002, it was reported that two Chinese F-7 interceptors flew very close to a US Navy E-3 while the US plane was monitoring large-scale Chinese war games involving 100,000 Chinese troops along the Chinese coast north of Taiwan. Similar incidents of very close contact occurred in November and December 2002, with Chinese fighter jets coming within 300 feet of an EP-3 as it flew along the Chinese coast.

　

 A year after this incident, a signed article in the Chinese Army's newspaper insisted in detail that the US surveillance flights along China's coast constituted "a bellicose act of provocation" that threatened China's security and must stop. The article said the US surveillance flights were "totally illegal", and that although Article 58 of the Law of the Sea Convention recognized overflight rights, "foreign aircraft must show consideration for the rights of the coastal states and abide by the laws and regulations of the coastal states, and may not endanger the sovereignty, security and national interest of the coastal states. Thus, the 'free overflight' of foreign aircraft over exclusive economic waters is restricted and conditional, and is not the kind of freedom of doing as one pleases as the United States said".

　

 Regarding establishing a sea 'base' in the EEZ without the coastal State's consent, there is a division of views among States regarding the jurisdiction of the coastal State with respect to "installations and structures" in the EEZ. While major Western maritime powers consider that the coastal State's jurisdiction is limited only to those installations and structures which are used for economic resources, MSR and environmental purposes, several developing States claim such jurisdiction over all types of installations and structures. The central issue behind this controversy appears to be the possible construction or use of installations, structures or other devices for military use. The importance of such devices may be changing with advances in technology. It would seem to be in the interest of confidence building for a State to refrain from constructing such a "base" in a coastal States' EEZ without the consent of the coastal State. In this context, the due regard principle applies and is repeated in the last sentence. Some nations may disagree with this Guideline and argue that they are not barred from such activities. Nevertheless, most coastal States would object to such uses and in the spirit of conflict avoidance this exhortation is included in the Guidelines.