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f. Military activities of a State in the EEZs of other States should not cause pollution or negatively affect the marine environment or marine living resources, including mammals. In particular, if prohibited by the laws of the coastal State, such activities in a coastal State's EEZ should not involve live weapons fire, underwater explosions or creation of sound waves and dangerous or radioactive materials that may directly or indirectly harm marine life or cause marine pollution.
This is one of the more controversial provisions in the Guidelines. But in considering this Guideline one must remember that the purpose of the Guidelines is to build trust and confidence and to avoid conflict. Moreover the Guideline is qualified by "if prohibited by the laws of the Coastal State". Articles 31, 32 and 236 of the 1982 UNCLOS make clear that while warships have immunity from coastal State jurisdiction, the countries operating such warships are liable for any environmental or other damage caused by their operations146. This would include "dangerous or radioactive materials that may directly or indirectly harm marine life or cause marine pollution". Since such States would be liable, they should refrain from such activity.
Second, military activities can interfere with fishing activities147. If the military activity involves "operations with weapons, the balance of interests established by Article 59 would in most cases weigh in favor of the coastal State. While the latter could easily put forward its right and responsibility to ensure the management of the resources and the protection of the marine environment, the other State would be asked to explain why the operations with weapons have to be conducted precisely within that particular exclusive economic zone, and not on the high seas or within its own exclusive economic zone148." Even military commentators concur with this general analysis: "While a naval exercise is permissible in the EEZ, it must not significantly interfere with coastal State fishing activities in the area. Balancing the rights of the coastal State and the maritime State would likely require the exercise to shift elsewhere. Similarly, warships in international waters must comply with international law governing pollution149."
The controversy is intensified by including "under water explosions or creation of sound waves". While evidence may not yet be conclusive regarding the degree and manner of the deleterious effects of sound waves on mammals, it would be precautionary and prudent to refrain from such activities in a coastal State's EEZ, particularly if that coastal State has enacted laws against it.
g. Military activities by another State should not be conducted:
1. in areas which have been announced by the coastal State as temporarily closed for the purposes of safety of navigation and overfligh;
2. in areas with intensive fishing activities declared by the coastal State;
3. in areas with special circumstances adopted in accordance with Article 211 (6)(a) of the 1982 UNCLOS;
4. in marine parks or marine protected areas declared by the coastal State as required by Article 194 (5) of the 1982 UNCLOS;
5. in areas with intensive navigation and near sea lanes and traffic separation schemes; and
6. near submarine cables and pipelines on the seabed of the EEZ clearly marked by the coastal State on large-scale charts recognized by the coastal State.
The Guidelines acknowledge elsewhere that State military vessels and aircraft have sovereign immunity and can navigate where they will. Guideline Vg specifies areas that in the spirit of confidence building, military vessels (and for g 1, aircraft) should avoid - for reasons of safety, potential liability, or the duty to pay due regard to the rights and duties of the coastal State to harvest its resources and protect its environment.
h. If there are high seas immediately adjacent to the coastal State's EEZ, a State undertaking military exercises should make every possible effort to limit them to the high seas.
This exhortation follows from the commentary on Guideline Vg. To avoid suspicion that the military activities are aimed at the coastal State, and to avoid interference with the rights and duties of the coastal State, it would be prudent to conduct such exercises in immediately adjacent high seas, if any exist and it is safe and feasible to do so. Of course this Guideline would be moot if the coastal State invited and joined with the State in exercising in its EEZ.
146. J. Astley III and M.N. Schmitt, The Law of the Sea and naval operations, Air Force Law Review, v. 42, 1997, 137.
147. This section is extracted from Van Dyke, supra n. 49 who bases his analysis on; Scovazzi, supra n. 89, p. 164.
148. Scovazzi, supra n. 89, p. 167.
149. Astley and Schmitt, supra n. 146; A similar analysis is found in Galdorisi and Kaufman, supra n. 99, p. 279: "The ability of maritime powers to engage in naval activities is therefore not unqualified. The effect upon coastal State claims and interests that is, upon natural resources and the environment must be considered before deciding upon the nature and scope of a naval operation in a foreign EEZ".
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