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X TRANSPARENCY OF LEGISLATION
a. Those States with policies and/or legislation regarding military activities in their EEZs should make them as transparent and as widely known as possible, including to the military authorities of other States that are frequently using or navigating their EEZs.
This is self explanatory. Lack of knowledge can lead to misunderstandings. Unfortunately not all States make their policies and laws transparent, and this is one source of incidents. If the policy or legislation is widely known, the foreign State may then consider carefully the consequences of violating it. Of course the promulgation of a policy or law which is contrary to the Convention and to particular countries' interests should also be avoided.
b. The dissemination or the receipt of the legislation by other States should not and does not constitute recognition of or refusal thereof by the receiving States of the legality of the legislation, unless specifically so stated by the receiving States or authorities.
This is self-evident and self-explanatory.
c. A copy of those laws should also be deposited with the UN Secretary-General, and be made available for easy reference by any interested States, authorities, or persons, with a view to increasing transparency and mitigating any hostile intentions.
This is self-explanatory.
d. Military vessels and aircraft of a State exercising the freedoms of navigation and overflight in the EEZ of another State should observe and comply with the coastal State's legislation on the basis of goodwill, or comply under protest.
This Guideline is also controversial. The United States has a long standing Program on Freedom of Navigation in which it frequently challenges with warships on coastal State's claims, policies and/or laws which it considers excessive168. It is suggested however that this exercise of freedom of navigation can often lead to untoward incidents like that in the Gulf of Sidra169. To avoid such incidents, it would be better to comply with the nation's law − but under protest − and to initiate dialogue as suggested in Guideline Xe.
e. Where States disagree, dialogue should be initiated either at the bilateral or regional level.
168. M. J. Valencia, Law of the Sea in transition: navigational nightmare for the maritime powers?, Journal of Maritime Law and Commerce, v. 18, n. 4, pp. 541-554.
169. See Van Dyke, supra n. 88, p. 32.
XI NON-PREJUDICIAL CLAUSE
a. Nothing contained in these Guidelines, or activities taking place pursuant to them, should be interpreted as prejudicing the position of any State in its claims to sovereign rights or jurisdiction in its claimed EEZ, or its rights and responsibilities therein under the 1982 UNCLOS.
This standard clause is inserted to reassure both coastal and foreign States that these Guidelines are non-binding, voluntary, exhortatory only, and designed to build trust and confidence between all States. Following them will not prejudice a State's pre-existing legal rights in the EEZ.
EEZ GROUP 21
Professor Masahiro Akiyama
Chairman
Ocean Policy Research Foundation, Japan
Rear Admiral (Ret.) Kazumine Akimoto
Senior Researcher
Ocean Policy Research Foundation, Japan
Dr. Sam Bateman
Emeritus Professor and Research Fellow
Centre for Maritime Policy
University of Wollongong, Australia
Prof. Dr./Ambassador Hasjim Djalal
Director, Centre for Southeast Asian Studies;
Member, Indonesian Maritime Council, Indonesia
Ambassador Alberto A. Encomienda
Secretary-General
Maritime and Ocean Affairs Center
Department of Foreign Affairs, Philippines
Professor Moritaka Hayashi
Professor of Law
Waseda University School of Law, Japan
Professor Ji Guoxing
School of International and Public Affairs
Center of RimPac Studies
Shanghai Jiao Tong University, China
Commander Dr. Kim Duk-ki
Assistant Secretary
Crisis Management Center
National Security Council, Republic of Korea
Mr. Pham Hao
Deputy Director General
Department of International Law and Treaties
Ministry of Foreign Affairs, Vietnam
Professor Shigeki Sakamoto
Professor of International Law
Graduate School of Law, Kobe University, Japan
Rear Admiral (Ret.) Dr. O. P. Sharma; AVSM; VSM
Chair
Maritime International Law
College of Naval Warfare, Mumbai, India
Dr. Alexander S. Skaridov
Professor of Law
Russian State Humanitarian University, Russia
Dr. Mark J. Valencia
Maritime Policy Analyst, Kaneohe, Hawaii, United States of America; Visiting Scholar, Ocean Policy
Research Foundation, Japan
Professor Jon M. Van Dyke
Professor of Law
William S. Richardson School of Law
University of Hawaii, United States of America
Judge Alexander Yankov
International Tribunal for the Law of the Sea
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