PEACEFUL PURPOSES RESERVATION IN THE LAW OF THE

SEA CONVENTION AND THE REGULATION OF MILITARY

EXERCISES OR MANEUVERS IN THE EXCLUSIVE
ECONOMIC ZONE

HENRIQUE MARCOS* & EDUARDO CAVALCANTI DE MELLO FILHO**

ABSTRACT

The definition of peaceful purposes reservations (PPRs) in the

Law of the Sea Convention (LOSC) is still elusive. Some scholars
argue that its meaning is similar to the content of Article 301, LOSC,
the prohibition of the use of force. Another group claims that such a
narrow interpretation is inadequate and instead argues for a broader
understanding that includes more than just the prohibition of the
use of force. Whereas broad interpretations regarding PPRs in the
international seabed area (Area) and on the high seas do not seem to
prosper, the broad interpretations of PPRs in the exclusive economic
zone (EEZ) are still worth discussing; many developing states
restrict foreign military exercises or maneuvers (MEMs) in their
EEZs by claiming that such activities are non-peaceful. Against this
background, this Article asks whether the PPR restricts third states’
abilities to conduct MEMs in their EEZs. This investigation analyzes
whether a broad interpretation of PPRs (especially regarding the
EEZ) can be justified considering contemporary international law.

* Lecturer at the Department of Foundations and Methods of Law, Maastricht

University. Joint PhD researcher in Law at Maastricht University and at the
University of São Paulo. MSc in Legal Sciences at the Federal University of Paraíba
(UFPB). Member of the Recognise Project (ERASMUS+), University of São Paulo’s
Centre for Studies on International Courts (NETI-USP), and Maastricht University’s
Globalization and Law Network (GLaw-Net). This research has been partially
financed by a 2021 grant from the CAPES Foundation (Brazil).
** Research Assistant, University of Geneva. Master’s candidate, Geneva
Graduate Institute of International and Development Studies. Bachelor’s degree in
Law, Federal University of Paraíba (UFPB).

417

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 418 U. Pa. J. Int'l L. [Vol. 44:2

To provide a comprehensive answer, this Article also examines the

prohibition of the use of force in the EEZ as contained in Article 301,
LOSC, and its influence on the lawfulness of MEMs. By tackling
these topics, this Article aims to help understand the nature of
military activities in EEZs, which are still controversial today and
bear great political relevance to American foreign policy, including
but not limited to activities in the South China Sea.

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 2023] Peaceful Purposes Reservation in the Law of the Sea 419

TABLE OF CONTENTS

I. Introduction............................................................................... 420
II. Peaceful Purposes Reservations in the LOSC ..................... 427
III. “The Area Shall Be Open to Use Exclusively for Peaceful
Purposes by all States” ..................................................... 428
IV. “The High Seas Shall Be Reserved for Peaceful Purposes”
............................................................................................. 430
V. The Exclusive Economic Zone Shall Be Reserved for
Peaceful Purposes ............................................................. 432
VI. The Prohibition of the Use of Force in the Exclusive
Economic Zone and Military Exercise or Maneuvers .. 440
a. Sovereign Rights and Jurisdiction as Part of the Coastal
State’s Territorial Integrity ......................................... 441
b. Coastal State’s Political Independence in Cases Concerning
MEMs in the EEZ ....................................................... 444
c. The Obligation to Peacefully Settle Disputes Concerning
MEMs in the EEZ ....................................................... 447
VI. Conclusion .............................................................................. 452

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 420 U. Pa. J. Int'l L. [Vol. 44:2

I. INTRODUCTION

In 1985, Francioni stated that “military operations and the use of

force remain in the shadows of the new law of the sea.”1 His words
still ring true. Beyond the territorial sea, military activities are barely
regulated.2 Unlike the mentions of “peaceful purposes” made by the
Antarctic Treaty or the Outer Space Treaty, the references in the 1982
Law of the Sea Convention (LOSC) have no further specification.3
The relevant provisions simply state that the international seabed
area (Area),4 the high seas,5 and the exclusive economic zone (EEZ)6
are reserved 7 for peaceful purposes. 8 Also, LOSC prescribes that

1 Francesco Francioni, Peacetime Use of Force, Military Activities, and the New
Law of the Sea, 18 CORNELL INTL’L L.J. 203, 203 (1985). By “the new law of the sea,”
Francioni refers to the UN Convention on the Law of the Sea and the systemic
changes it brought about. Commonly called the “constitution of the oceans,” the
convention has 168 State parties, and most of its provisions codified or gave rise to
corresponding rules of customary international law. This is generally true for all
the provisions mentioned in this Article. United Nations Convention on the Law of
the Sea, Dec. 10, 1982, 1833 U.N.T.S. 397 [hereinafter LOSC]; ROBIN CHURCHILL &
ALAN LOWE, THE LAW OF THE SEA 161-62 (3d ed. 1999).
2 LOSC, supra note 1. According to Article 2(1) of LOSC, a coastal state’s
sovereignty extends beyond its land territory to the territorial sea. The meaningful
difference between the sovereignty enjoyed by the coastal state in both land and
territorial sea is that the latter is restricted by the right of innocent passage.
Nevertheless, Article 19 defines non-innocent passages broadly, to the extent that
every foreign military activity in the territorial sea depends on the consent of the
coastal State.
3 Antarctic Treaty art. 1, Dec. 1, 1959, 12 U.S.T. 794, 402 U.N.T.S. 71; The Treaty
on Principles Governing the Activities of States in the Exploration and Use of Outer
Space, Including the Moon and Other Celestial Bodies art. 4, Oct. 10, 1967, 18 U.S.T.
2410, 610 U.N.T.S. 205.
4 LOSC, supra note 1, art. 141.
5 Id. art. 88.

6 Id. arts. 58(2), 88.

7 Id. The term “reserved” is used by Article 88. Article 141, on the Area, and

Article 240, on MSR, adopt the expressions “is open to use exclusively for peaceful
purposes” and “shall be conducted exclusively for peaceful purposes.” Despite the
difference in terminology, there is no semantic discrepancy between them—this
conclusion is clear from the negotiations of the Convention and the ordinary
meaning of both expressions. Adam Boczek, Peaceful Purposes of the United Nations
Convention on the Law of the Sea, 20 OCEAN DEV. & INT’L L. 359, 374 (1989).
8 Boczek, supra note 7. Part VI of LOSC, on the continental shelf, is not directly
relevant in both possible scenarios: (a) if an EEZ is also claimed, Part V, on the EEZ,
also governs the seabed and the subsoil (Article 56 (3)) or (b) if no EEZ is claimed
or an extended continental shelf is claimed, Part VI governs coastal States rights on
the continental shelf, which concerns the resources on the shelf and activities
related to them. Everything else, i.e., military activities, is governed by the high
sea’s regime.

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 2023] Peaceful Purposes Reservation in the Law of the Sea 421

marine scientific research (MSR) shall be conducted exclusively for

peaceful purposes.9
The prevailing perspective in scholarly literature, referred to by
this Article as the “narrow interpretation,” claims that the content of
the peaceful purposes reservations (PPRs) in the LOSC is best
ascertained through a contextual interpretation. This leads to a
reading of PPRs exclusively under the lens of Article 301, LOSC, on
the “peaceful uses of the seas,” 10 which thus prohibits the use of
force with words like Article 2(4) of the United Nations (U.N.)
Charter.11 In practice, the narrow interpretation is mainly advanced

9 LOSC, supra note 1, art. 238. The peaceful purposes clause on MSR seems to
be the least important. The high seas, the EEZ, and the Area are already reserved
for peaceful purposes, and the territorial seas and maritime spaces landward have
more specific stipulations regarding military activities. Thus, the relevant maritime
space in which an MSR is conducted is, at the very least, already reserved for
peaceful purposes.
10 Rüdiger Wolfrum, Restricting the Use of the Sea to Peaceful Purposes:
Demilitarization in Being, 24 GER. Y.B. INT’L L. 200, 203 (1981); Bernard Oxman, The
Regime of Warships Under the United Nations Convention on the Law of the Sea, 24 VA.
J. INT’L L. 809, 832 (1984); Adam Boczek, Peacetime Military Activities in the Exclusive
Economic Zone of Third Countries, 19 OCEAN DEV. & INT’L. L. 445, 457 (1988);
Francioni, supra note 1; CTR. FOR OCEANS L. & POL’Y, UNIV. OF VA., UNITED NATIONS
CONVENTION ON THE LAW OF THE SEA COMMENTARY 1982 ONLINE 115 (2013),
https://referenceworks.brillonline.com/entries/united-nations-convention-on-
the-law-of-the-sea/article-301-peaceful-uses-of-the-seas-v-
LAOS_9789024737192_153_155#book [https://perma.cc/Z8EU-567V]; C HURCHILL
& LOWE, supra note 1, at 411; Moritaki Hayashi, Military and Intelligence Gathering
Activities in the EEZ: Definition of Key Terms, 29 MARINE POL’Y 123, 125 (2005); JAMES
KRASKA, MARITIME POWER AND THE LAW OF THE SEA: EXPEDITIONARY OPERATIONS IN
WORLD POLITICS 257 (2011); THE UNITED NATIONS CONVENTION ON THE LAW OF THE
SEA: A COMMENTARY 1617-24(Alexander Proelss ed., 2017).
11 Instead of the language adopted by Article 2 (4), “inconsistent with the
Purposes of the United Nations,” Article 301 reads “inconsistent with the principles
of international law embodied in the Charter.” Presumably, States parties to the
LOSC are already bound by these principles of international law, including the self-
defense exception. Nevertheless, bringing it in Article 301 broadens the material
jurisdiction of courts and tribunals in Article 287, LOSC, since their compulsory
jurisdiction is limited to the interpretation or application of the Convention under
Article 288. One should note that the use of force as contained in Articles 2 (4) and
301 differs from the use of force lato sensu.
The latter, for example, has been referred to by the International Tribunal for the
Law of the Sea (ITLOS) in the context of law enforcement operations, with the so-
called Saiga Principles (addressed in Section V.b). Matteo Tondini, The Use of Force
in the Course of Maritime Law Enforcement Operations, 4 J. ON USE FORCE & INT’L L.
253, 256-58 (2017); Henrique Marcos & Eduardo Mello Filho, Complexidades Jurídicas
Relativas à Execução da Lei e ao Uso da Força no Mar [Legal Complexities Concerning Law
Enforcement and the Use of Force at Sea: Analysis of the Ukraine v. Russia Case of the
International Tribunal for the Law of the Sea], in 3 DIREITO DO MAR: REFLEXÕES,

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 422 U. Pa. J. Int'l L. [Vol. 44:2

by naval powers who consider naval mobility throughout the

oceans a critical strategic interest.12
Yet, some have proposed “broad interpretations” by claiming that
PPRs’ scope is broader than just the general prohibition on the use
of force. While broad interpretations of PPRs in the Area and on the
high seas do not seem to prosper,13 broad interpretations of PPRs in
EEZs are still a source of controversy. Many developing states
restrict foreign military activities in their EEZs by claiming that such
activities are non-peaceful. 14 For instance, in the Third U.N.
Conference on the Law of the Sea (1973-1982), Ecuador voiced a
position held by several developing states: reserving the ocean for
peaceful purposes must mean complete demilitarization. 15 In the
same vein, China criminalizes survey activities by foreign entities in
its EEZ.16 Iran prohibits “foreign military activities and practices”17
and Venezuela requires prior permission for military operations in
its EEZ.18 One can see that state practice varies with respect to what
specific foreign military activities are restricted in the EEZ. Still, a

TENDÊNCIAS E PERSPECTIVAS 237 (André Toledo, Leonardo Subtil, Thiago Carvalho

Borges & Tiago V. Zanella eds., 2019).
12 For a broader perspective on the influence of the new law of the sea on naval
mobility, see Kenneth Booth, The Military Implications of the Changing Law of the Sea,
in LAW OF THE SEA: NEGLECTED ISSUES 328, 328-97 (John Gamble ed., 1979).
13 The interpretation of the application of PPRs in the Area and on the high
seas will be analyzed in Sections III and IV. Briefly put, the history of negotiation
on disarmament in the Area is evidence that peaceful purposes could not mean
anything further than other treaties providing for such disarmament, which was
knowingly limited. As to the high seas, the efforts to specify the content of LOSC
Article 88, which reserves the high seas for peaceful purposes, point towards
precisely the prohibition of the use of force. PPRs in the Area and on the high seas
have a more goal-oriented aspect than robust normativity.
14 A relevant ground for this position is the reservation of the EEZ for peaceful
purposes. It is a relevant ground, but not the only one. For example, a promising
interpretation relies on the non-attribution of the freedom/jurisdiction over some
military activities. Thus, by applying Article 59, the residual rights would be
attributed to the coastal state. Sienho Yee, Sketching the Debate on Military Activities
in the EEZ: An Editorial Comment, 9 CHINESE J. INT’L L. 1, 3 (2010); J. ASHLEY ROACH &
ROBERT W. SMITH, EXCESSIVE MARITIME CLAIMS 379-91 (3d ed. 2012).
15 CTR. FOR OCEANS L. & POL’Y, supra note 10, at 88-89.
16 U.S. DEP’T OF DEF., REPORT TO CONGRESS: ANNUAL FREEDOM OF NAVIGATION
REPORT, FISCAL YEAR 2019, at 3 (2020).
17 Id. at 4.

18 Id. at 6. Iran and Venezuela are not parties to the LOSC. However, their

practice is pertinent because they are still bound by customary international law
rules governing the EEZ and the prohibition of the use of force. For the purposes of
the present investigation, all the relevant LOSC rules have negligible differences
from customary international law rules. CHURCHILL & LOWE, supra note 1, 161-62.

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 2023] Peaceful Purposes Reservation in the Law of the Sea 423

recurrent contention is that foreign military exercises or maneuvers

(MEMs)19 may only be conducted in the EEZ with the coastal state’s
consent. That is Bangladesh, Brazil, India, and Pakistan’s position.20
Those who defend the narrow interpretation generally
understand that the prohibition of the use of force does not ipso jure
prohibit MEMs in the EEZ. 21 In contrast, those claiming a broad
interpretation affirm that PPRs go beyond the prohibition of the use
of force to the extent of explicitly considering some military
activities, particularly MEMs, non-peaceful. 22 While it is true that
since the 1980s the narrow interpretation has attracted significantly
more support in scholarship,23 the unsurmountable fact is that state
practice does not seem to clearly reflect such an interpretation.
Moreover, most arguments in support of the narrow interpretation
heavily rely on the outcome of the negotiations in the Third
Conference, which ended in 1982. The difficulty, however, is that
state practice restricting foreign military activities in the EEZ has
only proliferated in the last forty years. 24 The importance of this
discussion in current international politics is also undisputed,

19 It is worthwhile to clarify what is meant by MEMs. According to Stephens

and Skougaard, MEMs involve “warships undertaking navigational and
operational exercises either exploring the effects of weaponry or testing strategies
without actual combat.” See Dale Stephens & Tristan Skousgaard, Naval
Demonstrations and Maneuvers, in MAX PLANCK ENCYCLOPEDIA OF INT’L L. ¶ 2 (2009).
They also include “activities such as task force maneuvering, flight operations, man
overboard drills, intelligence collection, weapons testing and firing, anti-submarine
and air warfare evolutions, and other associated naval drills.” Id. ¶ 12. Stephens
and Skougaard propose the figure of “naval demonstration,” as the “non-combat
exercise with the primary objective being to shape the strategic political, economic,
or military environment.” Id. ¶ 1. Very frequently, naval demonstrations have a
coercive aspect directed at another State. See id. ¶ 16. It is, thus, a kind of MEM.
20 See U.S. DEP’T OF DEF., supra note 16, at 3-5.

21 See L. OF THE SEA INST., CONSENSUS AND CONFRONTATION: THE UNITED STATES

AND THE LAW OF THE SEA CONVENTION 303-04 (Jon M. Van Dyke ed., 1985) (quoting
Tommy Koh, second president of the Third Conference: “[n]owhere is it clearly
stated whether a third state may or may not conduct military activities in the
exclusive economic zone of a coastal state. But, it was the general understanding
that the text we negotiated and agreed upon would permit such activities to be
conducted. I therefore would disagree with the statement made in Montego Bay by
Brazil, in December 1982, that a third state may not conduct military activities in
Brazil’s exclusive economic zone”).
22 Ren Xiaofeng & Senior Colonel Cheng Xizhong, A Chinese Perspective, 29
MARINE POL’Y 139, 143-44 (2005).
23 See Wolfrum, supra note 10, at 201.

24 Interpretation of the PPR in the EEZ and state practice will be extensively
examined in Part V.

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particularly regarding the South China Sea.25 In light of this debate,

this Article’s first objective is to analyze the content of the broad
interpretation of the PPR in the EEZ and whether there is a place for
such an interpretation in contemporary international law.
Moreover, even if this Article concludes that the broad
interpretation is unjustified and that the narrow interpretation
prevails (i.e., the PPR in the EEZ merely prohibits the use of force),
the discussion would not be over. One will not be warranted to
conclude that MEMs are allowed in foreign EEZs.26 As seen above,
some prominent positions by developing states based on PPRs
recognize that third states conducting MEMs in foreign EEZs must
ask for the coastal state’s consent.27 While some of these states base
their positions on a broad interpretation by defining MEMs as non-
peaceful, 28 other states seem to adopt a narrow interpretation based

25 The disputes in the South China Sea, which also involve American Freedom
of Navigation Operations (FONOPs) in the Chinese-claimed EEZ, are now the locus
classicus of the present discussion. But they are by no means the only examples. For
instance, according to the 2020 Freedom of Navigation Annual Report, made by the
United States Department of Defense, the United States has exercised multiple
operational challenges to claims related to the restrictions of MEMs in EEZs in the
following maritime regions: Persian Gulf (Iran), South China Sea (Malaysia), Indian
Ocean (Maldives), North Arabian Sea (Pakistan), and Caribbean Sea (Venezuela). It
is important to highlight that the United States also exercises operational challenges
against other countries, including allies, but less intensively. See U.S. DEP’T OF DEF.,
supra note 16, at 4-6.
Of course, the United States is not the only active country in conducting MEMs in
foreign EEZs, but it is undeniably the State with most relevant practice in that
regard. For a recent example of Chinese operations in the American EEZ, see infra
note 96.
26 See CTR. FOR OCEANS L. & POL’Y, supra note 10, at 91 (“In 1985, a report of the

Secretary-General of the United Nations concluded that ‘military activities which

are consistent with the principles of international law embodied in the Charter of
the United Nations, in particular with Article 2, paragraph 4, and Article 51, are not
prohibited by the Convention on the Law of Sea.’”).
27 See U.S. DEP’T OF DEF., supra note 16, at 3-5.

28 For instance, Cape Verde’s interpretative declaration under Article 310,

LOSC, clearly separates the prohibition of the use of force from the exclusion of any
“non-peaceful use.” United Nations Convention on the Law of the Sea, Dec. 10,
1982, 1833 U.N.T.S. 397.
https://treaties.un.org/Pages/ViewDetailsIII.aspx?src=TREATY&mtdsg_no=XXI
-6&chapter=21&Temp=mtdsg3&clang=_en [https://perma.cc/6UAC-79W9]
(follow “Cape Verde” hyperlink; then view “Declarations and Reservations”) (“In
the exclusive economic zone, the enjoyment of the freedoms of international
communication, in conformity with its definition and with other relevant
provisions of the Convention, excludes any non-peaceful use without the consent
of the coastal State, such as exercises with weapons or other activities which may
affect the rights or interests of the said state; and it also excludes the threat or use
of force against the territorial integrity, political independence, peace or security of

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 2023] Peaceful Purposes Reservation in the Law of the Sea 425

on Article 301, LOSC.29 Consequently, this Article’s second objective

focuses on MEMs and addresses the prohibition of the use of force
in the EEZ in light of the narrow interpretation of “peaceful
purposes,” as contained in Article 301.30 In this respect, this Article
aims to ascertain whether MEMs in the EEZ violate the prohibition
of the use of force, which is the content of the PPR in the EEZ under
the narrow interpretation.31
With these two objectives, the present investigation aims to
answer the following question: does the PPR restrict third states’
abilities to conduct MEMs in the EEZ in any capacity? In answering
this question, this Article delivers both practical and theoretical
contributions. Military activities in the EEZ (in general) and MEMs
(in particular) were among the most controversial issues in the Third
U.N. Conference on the Law of the Sea, which resulted in the LOSC.
Their controversial nature endures to this day, but they now bear

the coastal State.”). Uruguay and Thailand adopted similar declarations. Id. (follow
“Uruguay” and “Thailand” hyperlinks, respectively; then view “Declarations and
Reservations”).
29 For example, Brazil’s interpretative declaration to the LOSC, under Article
310, relies on Article 301, not on Article 88. Id. (follow “Brazil” hyperlink; then view
“Declarations and Reservations”). Anticipating its declaration, Brazil spelled out its
position on December 7, 1982, at the closing plenary session on the Third
Conference on the Law of the Sea. See ROACH & SMITH, supra note 14, at 379-80 (“[I]t
is our understanding [that] the provisions of article 301, which prohibit the threat
or use of force on the sea against the territorial integrity or independence of any
State, apply particularly to the maritime areas under the sovereignty or jurisdiction
of the coastal State. In other words, we understand that the navigation facilities
accorded third world countries within the exclusive economic zone cannot in any
way be utilized for activities that imply the threat or use of force against the coastal
State. More specifically, it is Brazil’s understanding that the provisions of the
Convention do not authorize other States to carry out military exercises or
maneuvers within the exclusive economic zone, particularly when these activities
involve the use of weapons or explosives . . . .”).
30 See LOSC, supra note 1, art. 301 (“In exercising their rights and performing

their duties under this Convention, States Parties shall refrain from any threat or
use of force against the territorial integrity or political independence of any State,
or in any other manner inconsistent with the principles of international law
embodied in the Charter of the United Nations.”). Here, the offended state is the
coastal state, which holds sovereign rights in the EEZ. A flag state can be a victim
of illegal use of force in any maritime space, and the legal regime regulating it is
generally the same. In the territorial sea, the offended state can also be the coastal
state, but the coastal state enjoys sovereignty over that space; the prohibition of the
use of force applies in a like manner to the land territory. The unchartered waters
are indeed those of the sovereign rights in the EEZ.
31 The content of the narrow interpretation (prohibition of the use of force) is
within the larger circle of the broad interpretation, which proposes further
prohibitions for purportedly non-peaceful activities. As such, the second objective
is also pertinent if a broad interpretation is adopted.

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 426 U. Pa. J. Int'l L. [Vol. 44:2

greater political importance. This is true, of course, for American

Freedom of Navigation Operations (FONOPs), which went from a
means of guaranteeing the rule of law at sea to one of the central
elements of American foreign policy. 32 More recently, however,
American interests have been on the receiving end of foreign
military activities by China, Russia, and North Korea. From a
theoretical perspective, there appears to be a gap in mainstream
scholarship. In general, authors who engage this topic affiliate
themselves with the narrow interpretation by understanding that
third states conducting MEMs in foreign EEZs only need to have due
regard for the coastal state’s rights and duties. The problem is that a
summary adoption of the narrow interpretation based on
negotiations from more than forty years ago risks ignoring current
practice, especially practice originating from developing states.
This Article proceeds as follows: Part II focuses on PPRs as laid
down in the LOSC. Part III deals with the PPR in the Area. Part IV
shifts its attention to the high seas and elaborates on the narrow
interpretation. Part V addresses the PPR as applied to the EEZ,
considering the specific context of the EEZ regime and the relevant
subsequent practice.33 Part VI examines the prohibition of the use of
force in the EEZ and its influence on the lawfulness of MEMs.
Section VI.a seeks to answer whether the coastal state’s sovereign
rights and jurisdiction in the EEZ are considered part of its territorial
integrity to be protected by the prohibition. Section VI.b
concentrates on “political independence,” also protected by such
prohibition, focusing on MEMs exercising political pressure over the
coastal state (EEZ). Section VI.c emphasizes the obligation to settle
disputes peacefully within the context of the prohibition of the use
of force, as this obligation plays a relevant role given that the coastal
and third states may reasonably disagree on whether an intended
MEM violates the coastal state’s sovereign rights and jurisdiction in
the EEZ.34 Part VII briefly concludes.

32 Dennis Mandsager, The U.S. Freedom of Navigation Program: Policy, Procedure,

and Future, 72 INT’L L. STUD. 113, 115-17 (1998).
33 As such, Parts II-V will be instrumental in addressing the first objective.
34 Part VI addresses the second objective.

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 2023] Peaceful Purposes Reservation in the Law of the Sea 427

II. PEACEFUL PURPOSES RESERVATIONS IN THE LOSC

At the second session of the Third U.N. Conference on the Law

of the Sea, Item 22 of a list prepared by the Seabed Committee
(functioning as the Preparatory Committee) was allocated to the
Plenary. Item 22, on “peaceful uses of the ocean space: zones of
peace and security,” was also discussed by each of the Main
Committees regarding their individual competences. 35 Briefly, the
First Committee was devoted to the Area. The Second Committee
dealt with other maritime spaces. The Third Committee addressed
the marine environment, MSR, and the transfer and development of
marine technology.36 Consequently, PPRs were dealt with by all the
Committees and aligned by the Plenary. As a result, Articles 88, 141,
143(1), 147(2)(d), 155(2), 240(a), 242(1), and 246(3) all contain PPRs. 37
It has been suggested that peaceful purposes should have a
single meaning across the Convention due to the contextual
interpretation under Article 31(1) of the Vienna Convention on the
Law of Treaties (VCLT). 38 Under a contextual interpretation, one
should consider the specific context and circumstances in which a
concept is used within a treaty, without importing meanings
constructed in different contexts (such as the Antarctic Treaty or the
Outer Space Treaty).39 For PPRs in the LOSC, the single meaning is
usually built around Article 301, leading to a narrow
interpretation.40
As demonstrated below, this proposition is compelling.
Nevertheless, it is still theoretically conceivable for a broad
interpretation beyond Article 301 to be sustained. This is the case for
at least four reasons: First, subsequent state practice is not uniform

35 CTR. FOR OCEANS L. & POL’Y, supra note 10, at 88.

36 ALEXANDRE PEREIRA DA SILVA, O BRASIL E O DIREITO INTERNACIONAL DO MAR
CONTEMPORÂNEO: NOVAS OPORTUNIDADES E DESAFIOS 61 (2015).
37 Despite the variety of provisions containing a PPR, determining the legal
content of the general provisions is enough since other provisions do not deviate
from them.
38 Vienna Convention on the Law of Treaties art. 31(1), May 23, 1969, 1155
U.N.T.S. 331 (“A treaty shall be interpreted in good faith in accordance with the
ordinary meaning to be given to the terms of the treaty in their context and in the
light of its object and purpose.”).
39 Boczek, supra note 7, at 363; Hayashi, supra note 10, at 124; Oxman, supra
note 10, at 832.
40 Hayashi, supra note 10, at 125.

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 428 U. Pa. J. Int'l L. [Vol. 44:2

regarding the application of the PPR to each maritime space. 41

Second, “even in the Convention, the term is used in different
contexts.”42 Third, per Article 32 of VCLT, supplementary means of
interpretation, including the preparatory work of the treaty and the
circumstances of its conclusion, are also relevant to confirm the
meaning resulting from the application of Article 31 or to determine
a different meaning if following Article 31 would lead to ambiguity,
obscurity, or a manifestly absurd or unreasonable result. Fourth,
versions of the LOSC authenticated in other languages should also
be opportunely examined, following Article 33 of VCLT. For these
reasons it does not seem proper to disregard a broad interpretation,
summarily adopting a single interpretation for peaceful purposes
across the Convention. The following Parts focus on PPRs in specific
maritime spaces: the Area, the high seas, and the EEZ.

III. “THE AREA SHALL BE OPEN TO USE EXCLUSIVELY FOR PEACEFUL

PURPOSES BY ALL STATES”

The efforts on the demilitarization of the international seabed

(the Area) transpired in the context of the Cold War.43 After Arvid
Pardo’s remarkable speech at the U.N. General Assembly (UNGA)
in 1967, the Seabed Committee was created. 44 It then prepared a
draft approved by UNGA Resolution 2749 called the “Declaration of
Principles Governing the Seabed and the Ocean Floor, and the

41 ”It seems doubtful, however, that the limited approach taken by the
Convention on the issue of military activities can be regarded as the final word,
taking into account the growing body of State practice requiring consent for the
performance of naval military exercises.” Alexander Proelss, Article 58, in UNITED
NATIONS CONVENTION ON THE LAW OF THE SEA: A COMMENTARY 444, 453 (Alexander
Proelss ed., 2017). Among the primary rules contained in Article 31, VCLT,
following the object and purpose of the Convention is not helpful. As contained in
its preamble and elsewhere, the Convention seeks to promote peaceful uses of the
oceans, but defining peaceful uses and purposes is precisely the task.
42 Silja Vöneky & Anja Höfelmeier, Article 141, in UNITED NATIONS
CONVENTION ON THE LAW OF THE SEA: A COMMENTARY 982, 984 (Alexander Proelss
ed., 2017); see also Jean-Pierre Quéneudec, The Peaceful Use of the International
Maritime Areas, in THE NEW LAW OF THE SEA: SELECTED AND EDITED PAPERS OF THE
ATHENS COLLOQUIUM ON THE LAW OF THE SEA, SEPTEMBER 1982, at 187, 189 (Christos
L. Rozakis & Constantine A. Stephanou eds., 1983).
43 James A. Barry, The Seabed Arms Control Issue: 1967-1971: A Superpower
Symbiosis?, 25 NAVAL WAR COLL. R. 87, 88 (1972).
44 Alexandre-Charles Kiss, La notion de patrimoine commun de l’humanité
(Volume 175), COLLECTED COURSES OF THE HAGUE ACAD. OF INT’L L. 201-202 (1982).

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 2023] Peaceful Purposes Reservation in the Law of the Sea 429

Subsoil Thereof, beyond the Limits of National Jurisdiction.” 45 Its

principles 5 and 8 read:
[Principle 5] The area shall be open to use exclusively for
peaceful purposes by all States, whether coastal or
landlocked, without discrimination, in accordance with the
international regime to be established.
[Principle 8] The area shall be reserved exclusively for
peaceful purposes, without prejudice to any measures which
have been or may be agreed upon in the context of
international negotiations undertaken in the field of
disarmament and which may be applicable to a broader
area . . . .46
Principle 5 is important because it is the basis of Article 141,
LOSC. 47 Principle 8 is relevant because it points to how the PPR in
the Area should be understood. It contains a without-prejudice
clause referring to international negotiations undertaken in the field
of disarmament. This clause indirectly references the 1963 Nuclear
Tests Ban Treaty 48 and nudges at the future 1971 Seabed Arms
Treaty,49 which achieved great adherence.50 Thus, it does not seem
adequate to read the PPR in the Area as complete demilitarization.
There were some attempts to specify the PPR as applied to the
Area in the Seabed Committee. Malta proposed prohibiting placing
nuclear weapons and other weapons of mass destruction and
nuclear weapon tests in the Area. The Soviet Union and Tanzania
proposed the prohibition of the use of the seabed for military
purposes. These propositions were contemplated in a draft made by

45 G.A. Res. 2749 (XXV), Declaration of Principles Governing the Seabed and
the Ocean Floor, and the Subsoil Thereof, beyond the Limits of National Jurisdiction
(Dec. 17, 1970).
46 Id. ¶¶ 5, 8.

47 LOSC, supra note 1, art. 141 (“The Area shall be open to use exclusively for
peaceful purposes by all States, whether coastal or land-locked, without
discrimination and without prejudice to the other provisions of this Part.”).
48 Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space
and Under Water, Aug. 5, 1963, 480 U.N.T.S. 43 (1963) [hereinafter “Nuclear
Weapon Tests”].
49 Treaty on the Prohibition of the Emplacement of Nuclear Weapons and
Other Weapons of Mass Destruction on the Sea-Bed and the Ocean Floor and in the
Subsoil Thereof, opened for signature Feb. 11, 1971, 955 U.N.T.S. 115.
50 CTR. FOR OCEANS L. & POL’Y, supra note 10, 145-50.

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the Committee. However, in the end, the Third Conference adopted

Article 141 under terms similar to Principle 5’s.51
The interpretation extracted from Principle 8 and the adherence
achieved by treaties in the field of disarmament on the Area leads to
the conclusion that the PPR, as applied to the Area concerns a policy
goal for international law.52 “It reflects the language of the preamble
to the Convention, which recognizes the desirability of establishing
a Convention that will ‘promote the peaceful uses of the seas and
oceans.’”53 Boczek understands that it is an example of “soft law”
under the meaning proposed by Weil. 54 In that regard, many
scholars read Article 141 through Article 301, thus concluding that
Article 141 also prohibits the use of force at sea.55

IV. “THE HIGH SEAS SHALL BE RESERVED FOR PEACEFUL PURPOSES”

Unlike the Area, the high seas host many military activities.56
One should also note that there was no provision similar to Article
88 in the 1958 Convention on the High Seas. 57 In the Third
Conference at the second session (1974), copying a proposal made
by the Latin-American States in the Seabed Committee, the Main

51 For the proposals made by Malta, the Soviet Union, and Tanzania and the
outcome of the issue in the Committee, see Vöneky & Höfelmeier, supra note 42, at
983.
52 The effet utile principle, derived from an interpretation according to the
object and purpose of the treaty (Article 31 of VCLT), is deemed to be satisfied with
such a content, which does not deprive the provision of any effect. Quéneudec,
supra note 42, at 192.
53 CTR. FOR OCEANS L. & POL’Y, supra note 10, 145-50.
54 Boczek, supra note 7, at 380. Weil observes that whereas some rights and
obligations under international law are precise (hard law), other provisions are so
vague and uncompelling that they may be characterized as soft, fragile, or weak
law, even though they come from formal sources of international law. Prosper Weil,
Towards Relative Normativity in International Law?, 77 AM. J. INT’L L. 413, 414 (1983).
55 Rüdiger Wolfrum, The Principle of the Common Heritage of Mankind, 43
ZEITSCHRIFT FUR AUSLANDISCHES OFFENTLICHES RECHT UND VOLKERRECHT 312, 320
(1983); Michael Lodge, The Common Heritage of Mankind, 27 INT’L J. MARINE &
COASTAL L. 733, 736 (2012); Vöneky & Höfelmeier, supra note 42, at 985.
56 Military activities on the high seas are sparsely regulated. One example is
found in the scope of application of the Treaty Banning Nuclear Weapon Tests,
Article I, which contains an obligation “to prohibit, to prevent, and not to carry out
any nuclear weapon test explosion, or any other nuclear explosion.” Nuclear
Weapon Tests, supra note 48, at 45.
57 Convention on the High Seas, Apr. 29, 1958, 450 U.N.T.S. 11.

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 2023] Peaceful Purposes Reservation in the Law of the Sea 431

Trends Working Paper58 stated the following: “The international seas

shall be open to all States, whether coastal or land-locked, and their
use shall be reserved for peaceful purposes.” Later, the term “high
seas” replaced “international seas.”59
At the ninth session, an attempt was made to clarify the meaning
of “peaceful purposes.” A group of ten states presented a paragraph
to be added to Article 88. 60 Rejected as part of this Article, 61 the
content of that proposal, based on Articles 19(2)(a) and 39(1)(b) of
LOSC,62 later became Article 301, a general provision applicable to
all maritime spaces on the “peaceful uses of the seas.” Article 301’s
text reads: “[All] States Parties shall refrain from any threat or use of
force against the territorial integrity or political independence of any
State, or in any other manner inconsistent with the principles of
international law embodied in the Charter of the United Nations.” 63
Despite the different terminology, there appears to be no
difference between “purposes” and “uses.” As highlighted before,
the Item originating PPRs reads “Peaceful Uses of the ocean space:
zones of peace and security.” The authentic French and Spanish
versions of Article 301, if freely translated, read “use of the sea(s)
with peaceful purposes” (“utilización del mar con fines pacíficos” and
“utilisation des mers à des fins pacifiques”).64 For this reason, Article 88
may be interpreted through Article 301, as most scholarship

58 CTR. FOR OCEANS L. & POL’Y, supra note 10, at 12 (“The Main Trends Working
Paper is a compendium reflecting the different approaches to particular subjects
and issues which the Second Committee addressed. It was a procedural device
designed to set in motion the task of reducing to manageable proportions the
enormous quantity of proposals which had accumulated.”).
59 Id. at 88.

60 This group is mainly made of developing states: Costa Rica, Ecuador, El

Salvador, Pakistan, Peru, Philippines, Portugal, Senegal, Somalia, and Uruguay. Id.
at 87.
61 Id. at 90.

62 Article 19(2)(a) considers as non-innocent the use of force against the

sovereignty, territorial integrity, or political independence of the coastal State, or in
any manner in violation of the principles in the UN Charter. LOSC, supra note 1,
art. 19(2)(a). Article 39(1)(b) prohibits the use of force in the exercise of the right of
transit passage in straits used for international navigation. Id. art. 39(1).
63 Id. art. 301.

64 According to Article 33(3) of the VCLT, “the terms of the treaty are
presumed to have the same meaning in each authentic text.” Vienna Convention on
the Law of Treaties, supra note 38, art. 33(3).

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claims.65 Once again, if it means anything beyond Article 301, the

high seas PPR is also a policy goal, like Article 141 on the Area.66

V. THE EXCLUSIVE ECONOMIC ZONE SHALL BE RESERVED FOR

PEACEFUL PURPOSES

The opinion proposed by the majority of scholars and by the

naval powers is that the application of Article 88 to the EEZ should
also be guided by Article 301. 67 Nonetheless, there are such
remarkable differences between the high seas and the EEZ that a
particular contextual interpretation should be carefully handled
before simply adopting one single interpretation for both.68
One would be correct to say that under Article 56, LOSC,69 the
coastal state does not enjoy full sovereignty over its EEZ, but only
some sovereign rights and jurisdiction. Still, the powers to which
these sovereign rights entitle coastal states do not fall short of
sovereignty on the subject matter addressed by Article 56 (economic
resources and economic potentiality).70 Therefore, it would not be

65 See Wolfrum, supra note 10, at 201.

66 Oxman, supra note 10, at 832. A possible limitation to the freedom to
conduct military activities would not be found directly in Article 88, but in the
criterion of reasonable use in LOSC Article 87(2). Quéneudec, supra note 42, at 195;
LOSC, supra note 1, art. 87(2).
67 Oxman, supra note 10, at 832; Francioni, supra note 1, at 223; Boczek, supra
note 10, at 457; KRASKA, supra note 10, at 257.
68 Some of these significant differences are highlighted in Subsection V.A. See
LOSC, supra note 1, arts. 55-75.
69 Id. art. 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 seabed and of the seabed 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; (b) jurisdiction as
provided for in the relevant provisions of this Convention with regard to: (i) the
establishment and use of artificial islands, installations and structures; (ii) marine
scientific research; (iii) the protection and preservation of the marine environment;
(c) other rights and duties provided for in this Convention. 2. In exercising its rights
and performing its duties under this Convention in the exclusive economic zone,
the coastal State shall have due regard to the rights and duties of other States and
shall act in a manner compatible with the provisions of this Convention. 3. The
rights set out in this article with respect to the seabed and subsoil shall be exercised
in accordance with Part VI.”).
70 Continental Shelf (Tunis./Libyan Arab Jamahiriya), Judgment, 1986 I.C.J.
157, 230 (Feb. 24) (Oda, J., dissenting) (“The mode of exercise of jurisdiction [in the

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 2023] Peaceful Purposes Reservation in the Law of the Sea 433

wrong to understand that the coastal state has ratione materiae

limited sovereignty over the EEZ. Moreover, it should be noted that
many states have increasingly seen the EEZ through a “quasi-
territorial” lens.71
Thus, while the two earlier analyzed maritime spaces are res
communis, 72 the EEZ is not. In this regard, a comparison to the
regime of the territorial sea seems fitting. There are two opposite
readings of the PPR in the EEZ in light of the territorial sea regime
that deserve attention. The first one points out that the legal text
equivalent to PPRs in the territorial sea defines what is not
considered innocent passage.73 Some authors propose a contextual
interpretation that relies on the absence of similar provisions in the
EEZ’s regime to conclude that had the negotiating states wanted to
include comparable provisions in Part V, they would have done so.74
Consequently, only military activities inconsistent with Article 301
would be forbidden. A second, opposite reading linking both EEZ
and territorial sea regimes has also been raised. Xiaofeng and
Xizhong have proposed to use the definition of non-innocence in the
territorial sea by analogy to define non-peaceful purposes in the
EEZ. They argue that with the technological development in the last

EEZ] is no different from that exercised by the coastal State within its territorial sea
and, so far as the development of the natural resources of the sea is concerned, its
competence in the Exclusive Economic Zone is equivalent to that it enjoys in the
territorial sea.”); YOSHIFUMI TANAKA, THE INTERNATIONAL LAW OF THE SEA 154 (3d
ed. 2019) (“The sovereign rights of the coastal State are limited to the matters
defined by international law (limitation ratione materiae). On this point, sovereign
rights must be distinguished from territorial sovereignty.”). Francioni called it
“economic sovereignty.” Francioni, supra note 1, at 226.
71 Bernard Oxman, The Territorial Temptation: A Siren Song at Sea. 100 AM. J.
INT’L L. 830, 839 (2006).
72 The Area can be easily considered res communis, especially considering the
common heritage of humankind principle and the regime contained in Part XI of
LOSC. See LOSC, supra note 1, arts. 76-85. Regarding the high seas, this contention
requires some qualifications. Alongside res communis, commentators have also seen
the high seas through other lenses, such as res nullius, public domain, the theory of
juridicity, and the theory of reasonable use. Similar and divergent implications and
emphasis stem from adopting each of them. In referring to the high seas as res
communis here, this Article emphasizes a particular difference from the EEZ: there
is no privileged (coastal) state in the high seas. Formally, all states benefit from the
high seas on the same footing as a common space. Also, “[t]he mainstream of the
Grotian theory was that the sea is res communis.” D. P. O’CONNELL & I. A. SHEARER,
2 THE INTERNATIONAL LAW OF THE SEA 792-93 (1988).
73 LOSC, supra note 1, art. 19.
74 Raul Pedrozo, Preserving Navigational Rights and Freedoms: The Right to
Conduct Military Activities in China’s Exclusive Economic Zone, 9 CHINESE J. INT’L L. 9,
11 (2010).

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decades, traditional non-innocent activities in the territorial sea are

now conducted in the EEZ to achieve similar goals.75
However, the two readings mentioned above, based on
comparisons to the law regulating the territorial sea, are untenable.
The first one is an a contrario interpretation. It is an interpretation by
implication, and such implication is not logically necessary. In this
connection, it is worth noting that the United States’ strategy in
negotiating Article 58—containing all states’ freedoms in the EEZ—
was to insert a “constructive ambiguity,” enabling them to advance
their interests concerning military activities in foreign EEZs.76 Such
silence in Part V on military activities makes it difficult to adopt a
contextual interpretation of peaceful purposes based on the
differences between the law governing the territorial sea and the
legal regime of the EEZ.
As to the second reading, Xiaofeng and Xizhong propose an
analogy. Analogies tend to be convincing in (international) law 77
because they fundamentally rely on the general principle of formal
justice, that is, like cases must be treated alike.78 Once two cases are
considered like, the applicable rule for the regulated case may be
applied to the unregulated case. Still, analogies are subject to some
fragilities. First, it is not always clear what cases are indeed alike.
Second, the case-based justification needed for reasoning by analogy
is far more contestable in light of applying non-applicable rules to
such cases.79 This is particularly true for the second reading.

75 Xiaofeng & Xizhong, supra note 22, at 142-43.

76 Robert Beckman & Tara Davenport, The EEZ Regime: Reflections After 30
Years, in PAPERS FROM THE LAW OF THE SEA INSTITUTE 2, 45-46 (Harry N. Scheiber,
Moon S. Kwon & Emily Gardner eds., 2012); Kenneth Booth, Historic Compromise or
Paradigm Shift? Naval Mobility Versus Creeping Jurisdiction, in THE 1982 CONVENTION
ON THE LAW OF THE SEA 312, 325 (Albert Koers & Bernard Oxman eds., 1983) (“In
relation to one of the earlier drafts of the Convention, the silence of the document
hides a number of rights for navies, such as the right to conduct naval exercises
within the EEZ of other States and the right to hold weapons tests there.”).
77 Responsibilities and Obligations of States Sponsoring Persons and Entities
with Respect to Activities in the Area, Case No. 17, Advisory Opinion of Feb. 1,
2011, 2011 ITLOS Rep. 10, ¶ 60; Application of the Convention on the Prevention
and Punishment of the Crime of Genocide (Bosn. & Herz. v Serb.), Judgment, 2007
I.C.J. 43, ¶¶ 217-18 (Feb 26); Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v.
Belg.), Judgment, 2002 I.C.J. 3, 22 (Feb 14); see also, Fernando L. Bordin, Analogy, in
CONCEPTS FOR INTERNATIONAL LAW: CONTRIBUTIONS TO DISCIPLINARY THOUGHT 25,
29-30 (Jean D’Aspremont & Sahib Singh eds., 2019).
78 See ARISTOTLE, 3 NICOMACHEAN ETHICS 84-86 (W. D. Ross & Lesley Brown

trans., Oxford Univ. Press. rev. ed. 2009) (c. 384 B.C.E.); see also Bordin, supra note
77, at 34, 36.
79 Jaap Hage, Comparing Alternatives, in STUD. IN LEGAL LOGIC 101, 101 (2005).

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 2023] Peaceful Purposes Reservation in the Law of the Sea 435

The EEZ is still very different from the territorial sea. Moreover,
to infer that non-peaceful purposes in the EEZ should be equated to
non-innocent activities in the territorial sea because they aim at
similar goals is unpersuasive. The move to the EEZ is more likely a
consequence of the strengthened territorial sea regime than an
unrelated like case. Finally, international law’s decentralized nature
calls for a more careful analysis of analogical reasoning, especially
regarding the legitimacy of those putting it forward. 80 Bordin
considers in this sense that “an objection that can be made to the
carrying out of codification projects [or interpretation and
progressive development] on the basis of analogy is that the topic
may not be ripe for codification if practice and precedent are
scant.”81 In other words, practice and precedent may point toward a
legitimate analogy in the international legal order. Bearing in mind
the particularities of LOSC as an extensively negotiated “package
deal,”82 an analogy that extrapolates the deal’s boundaries would
need evident and legitimate support.
So, considering that the context (the other provisions of the
Convention)83 offers little guidance to interpreting the PPR in the
EEZ, one should ask whether subsequent state practice supports the
broad or the narrow interpretation. Some developing states have
claimed that the conduct of MEMs in the EEZ, especially if they
involve weapons or explosives, is only possible with the consent of
the respective coastal state. Among those states are India, Brazil,
Pakistan, Bangladesh, Ecuador, and Malaysia. With similar
declarations referring to MEMs as non-peaceful, one can point to

80 For an example, see Kevin Jon Heller, The Use and Abuse of Analogy in IHL,
in THEORETICAL BOUNDARIES OF ARMED CONFLICT AND HUMAN RIGHTS 232, 233 (Jens
David Ohlin ed., 2016) (“Since 9/11, however, the United States has consistently
taken the position that certain IAC-based rules of IHL can be applied in NIAC via
a third method: analogy. The U.S. has argued, for example, that it can target
members of any organized armed group that would qualify as a ‘co-belligerent’ of
al-Qaeda under IAC rules. Similarly, by analogizing to the ‘persons accompanying’
provision of the Third Geneva Convention (GC III), the U.S. has argued that it can
detain individuals who are not members of al-Qaeda but substantially support it . . .
Where does the U.S.’s authority to analogize between IAC and NIAC come from?”).
81 Bordin, supra note 77, at 37.
82 The rules of procedure adopted by the Third Conference on the Law of the
Sea, which culminated with LOSC, were consensus-based and aimed at a “package
deal.” In other words, nothing is agreed upon until everything is agreed. The end
result should be a comprehensive agreement minimally satisfactory for all parties.
The Convention does not admit reservations to preserve its comprehensiveness
under Article 309. Hugo Caminos & Michael R. Molitor, Progressive Development of
International Law and the Package Deal, 79 AM. J. INT’L L. 871, 875-76 (1985).
83 See supra Part II (discussing contextual interpretations).

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Uruguay, Cape Verde, and Thailand.84 Moreover, during the Third

Conference, Peru, Albania, the Khmer Republic, North Korea, Costa
Rica, El Salvador, the Philippines, Portugal, Senegal, and Somalia
also showed concerns with foreign military activities in the EEZ.85
Beyond the positions held in the context of the Conference, Iranian
practice also supports this perspective.86 In fact, as early as 1990, the
United States Navy has reported that at least thirty nations restricted
foreign military activities in the EEZ in one way or another. 87
Finally, the Chinese position is also in support of a broad
interpretation.88
On the other side, the Netherlands, Germany, and Italy have
made interpretative declarations stating that under Article 56 or in
virtue of Article 59, LOSC,89 the coastal state does not have the right
to require its consent for foreign military activities to be conducted
in its EEZ. The United Kingdom simply declared that requiring
consent does not conform with the Convention. 90 As one can see,
none of these declarations addressed the PPR.
In scholarship, Pedrozo affirms that state practice favors the
narrow interpretation. However, he does not seem to offer any
proof,91 which Zhang critiques in a paper responding to Pedrozo.92

84 The interpretative declarations can be found on the United Nations Treaty

Collection. See supra note 28 and accompanying text.
85 Jon M. Van Dyke, Military Ships and Planes Operating in the Exclusive
Economic Zone of Another Country, 28 MARINE POL’Y 29, 31 (2004).
86 Alongside Iranian practice, Brazil, Malaysia, Cape Verde, India, Uruguay,
Pakistan, and China’s practices are well-documented. See Sophia Kopela, The
“Territorialisation” of the Exclusive Economic Zone: Implications for Maritime
Jurisdiction 4 (Apr. 03, 2009) (unpublished manuscript) (on file with the University
of Pennsylvania Journal of International Law).
87 Stephen Rose, Naval Activity in the Exclusive Economic Zone—Troubled Waters
Ahead?, 20 OCEAN DEV. & INT’L L. 123, 134-35 (1990).
88 Xiaofeng & Xizhong, supra note 22.
89 LOSC, supra note 1, art 59 (“In cases where this Convention does not
attribute rights or jurisdiction to the coastal State or to other States within the
exclusive economic zone, and a conflict arises between the interests of the coastal
State and any other State or States, the conflict should be resolved on the basis of
equity and in the light of all the relevant circumstances, taking into account the
respective importance of the interests involved to the parties as well as to the
international community as a whole.”).
90 The interpretative declarations can be found on the United Nations Treaty
Collection. See supra note 28 and accompanying text.
91 Pedrozo, supra note 74, at 11.
92 Haiwen Zhang, Is It Safeguarding the Freedom of Navigation or Maritime
Hegemony of the United States?—Comments on Raul (Pete) Pedrozo’s Article on Military
Activities in the EEZ, 9 CHINESE J INT’L L. 31, 37 (2010).

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 2023] Peaceful Purposes Reservation in the Law of the Sea 437

On the same topic, Kraska does not provide an extensive listing of

evidence, mentioning only Australia, Russia, Canada, and Japan as
examples of states carrying out these activities in foreign EEZs.93 In
fact, as Zhang pointed out in 2010, “only the United States has
engaged in military activities such as military surveys in the EEZ of
China without its approval, and there is no other country that has
done so in recent years.”94 In August 2021, however, four Chinese
warships were spotted conducting military operations in American
EEZ near the Aleutian Islands. While these operations might be seen
as a response to American FONOPs in the South China Sea, the “U.S.
Navy appears to welcome the activity as it validates its own freedom
of navigation operations.”95 At the time of writing, the United States
has consistently adopted this position.96
Yet, as David Attard had already stated in 1987, “the feeling has
been expressed that many States will in future be inclined to restrict
military uses of the EEZ.”97 Addressing concrete cases, Van Dyke
asserted in his concluding remarks that:
[I]n light of the creation and acceptance of the EEZ and the
recognition of coastal state resource rights, “further
limitations on the said freedoms [of navigation and
overflight] must be accepted”. These limitations are both “of
a political nature” related to the security concerns of coastal
states and “are derived from economic rights” stemming

93 KRASKA, supra note 10, at 269. The main evidence of state behavior in
support of a narrow interpretation is coastal states’ passivity in the face of FONOPs
conducted by the United States. The notable exceptions are China, Peru, and North
Korea, who challenged FONOPs operationally (beyond diplomatic protests);
Pedrozo, supra note 74, at 13. It is not clear, however, how this alleged passive
behavior impacts state practice.
94 Zhang, supra note 92, at 47.
95 Joseph Trevithick, Chinese Warships Sailing Near Alaska’s Aleutian Islands
Shadowed By U.S. Coast Guard (Updated), WARZONE (Sept. 14, 2021 10:53 AM),
https://www.thedrive.com/the-war-zone/42352/chinese-warships-sailing-near-
alaskas-aleutian-islands-shadowed-by-u-s-coast-guard [https://perma.cc/3EJY-
6D67]. Even if one considers that the Chinese operations are legal in themselves—
thus possibly qualifying as retorsions—they might aggravate an ongoing dispute
and, as such, violate rticle 2(3) of the UN Charter and Article 279 of LOSC. For a
discussion on the obligation to settle international disputes peacefully, see infra
Section VI.c.
96 Chinese and Russian Warships Located near Alaska in Bering Sea, ABC NEWS

(Sept. 27, 2022), https://www.abc.net.au/news/2022-09-27/chinese-and-russian-

warships-spotted-near-alaska/101477148 [https://perma.cc/46N8-BNFW].
97 DAVID ATTARD, THE EXCLUSIVE ECONOMIC ZONE IN INTERNATIONAL LAW 68
(1987).

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from coastal state sovereignty over the resources of the

EEZ.98
Therefore, it is possible to conclude that substantial practice
supports certain restrictions on certain foreign military activities in
the EEZ.99 Notwithstanding, that does not entail the conclusion that
subsequent practice supports a broad interpretation of Article 88 as
applied to the EEZ. First, the contextual interpretation around
Article 301 still carries some weight and, a priori, should be deemed
applicable to the EEZ. As seen in the preceding Section, the content
of Article 301 was especially proposed to clarify Article 88. 100
Second, there is no specification on what a broad interpretation of
PPRs entails. In short, there seems to be no place yet for a broad
interpretation of the PPR in the EEZ.
In the future, state practice might solidify to consider certain
military activities in the EEZ as non-peaceful. Today, there is
growing practice restricting foreign military activities in the EEZ,
but the legal grounds for that are diverse. Some declarations simply
state that the Convention’s provisions do not authorize foreign
MEMs without the coastal state’s consent. 101 Some states, like
Uruguay and Cape Verde, understand that those specific military

98 Van Dyke, supra note 85, at 38.

99 U.S. DEP’T OF DEF., supra note 16.
100 In the Enrica Lexie case, India adopted the narrow interpretation through
an interpretative declaration requiring consent for foreign military exercises or
maneuvers. Among other arguments, it raised that Article 301 was initially a part
of Article 88, which intended to clarify the meaning of peaceful purposes. The
“Enrica Lexie” Incident (It. v. India), Award, PCA Case No. 2015-28, ¶ 1047
(Permanent Ct. of Arb. 2020), https://www.pcacases.com/web/sendAttach/16500
[https://perma.cc/HPD8-ACD6]; see infra Part VI.a.
101 For example, India and Bangladesh made the exact same declaration
without reference to any provision in particular: “The Government of the Republic
of India understands that the provisions of the Convention do not authorize other
States to carry out in the exclusive economic zone and on the continental shelf
military exercises or manoeuvres, in particular those involving the use of weapons
or explosives without the consent of the coastal State.” United Nations Convention
on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 397,
https://treaties.un.org/Pages/ViewDetailsIII.aspx?src=TREATY&mtdsg_no=XXI
-6&chapter=21&Temp=mtdsg3&clang=_en [https://perma.cc/6UAC-79W9].
(follow “India” hyperlink; then view “Declarations and Reservations”).
Bangaladesh included a nearly identical statement in its declaration. Id. (follow the
“Bangladesh” hyperlink; then view “Declarations and Reservations”). The
interpretative declarations can be found on the United Nations Treaty Collection.
See supra note 28.

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 2023] Peaceful Purposes Reservation in the Law of the Sea 439

activities are non-peaceful due to a broad interpretation of PPRs.102

Others, like Brazil and Malaysia, seem to understand that a narrow
interpretation of the provision, based on Article 301, already entitles
it to require its consent from third states to conduct MEMs in its
EEZ.103 Another justification is based on the non-attribution of said
right or freedom and the residual attribution to the coastal state
under Article 59.104 In other words, the reason for such a position
does not necessarily rely on a broad interpretation of the PPR.
According to Article 31(3)(b) of the VCLT, “the subsequent
practice,” if it is to be considered, must establish the agreement of
the parties regarding a particular treaty interpretation. 105 While it
might be controversial what kind of practice is required to establish
an agreement between the parties or even whether all the parties to
the treaty must establish such an agreement,106 the case at hand is in
many ways far from reflecting an agreement between parties to the
LOSC.
At a first level, it should be observed that important and
representative groups of member states to the LOSC have different
opinions and practices regarding the issue—in favor or against
requiring restriction on foreign military activities in the EEZ. At a
second level, among those defending restrictions on foreign military
activities in the EEZ, the specific restriction is not always the same
in light of what was alluded to in Part I of this Article.107 Finally,
even in cases where the restriction defended is similar, the
supporting legal argument is not always based on a broad
interpretation of the PPR. Therefore, subsequent practice is not
sufficient to turn the interpretation of the PPR as applied to the EEZ
away from Article 301.

102 They adopted the very same declaration. To access these declarations, see
supra notes 28, 101 and accomapnying text.
103 To access these declarations, see supra notes 28, 101 and accompanying text.
104 Beckman & Davenport, supra note 76, at 12, 36.
105 Vienna Convention on the Law of Treaties, supra note 38, art. 31(3)(b).
106 Luigi Crema, Subsequent Agreements and Subsequent Practice Within and
Outside the Vienna Convention, in TREATIES AND SUBSEQUENT PRACTICE 13, 17-21
(Georg Nolte ed., 2013).
107 U.S. DEP’T OF DEF., supra note 16, at 3-5.

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 440 U. Pa. J. Int'l L. [Vol. 44:2

VI. THE PROHIBITION OF THE USE OF FORCE IN THE EXCLUSIVE

ECONOMIC ZONE AND MILITARY EXERCISE OR MANEUVERS

Under Article 19(2)(b), an unauthorized military exercise 108 on

the territorial sea is non-innocent, potentially configuring a violation
of the prohibition of the use of force. Unauthorized military
exercises would be peaceful on the high seas or in the Area as long
as they do not violate Article 301. The same rule applies to the EEZ.
However, while any state can be a victim of an illegal threat or use
of force in the capacity of a flag state on the high seas and in the EEZ,
it is controversial whether a state can be a victim in the capacity of a
coastal state in the EEZ.109
As mentioned in Part V, differently from the territorial
sovereignty enjoyed over the territorial sea, the coastal state only has
limited sovereign rights and jurisdiction in the EEZ. Bearing this in
mind, an initial point that needs to be addressed by this Part is
whether the coastal state can be a victim of an illegal threat or use of
force in the EEZ at all, particularly in cases involving MEMs.
Therefore, Section VI.a asks whether the sovereign rights and
jurisdiction enjoyed in the EEZ can be considered within a state’s
territorial integrity, which is protected by the prohibition.
Considering the strong political content involved in the conduct of
MEMs, Section VI.b is devoted to examining how the political
independence of the coastal state is protected by the prohibition of
the use of force in the EEZ. Finally, bearing in mind the potential for
disputes 110 involving the lawfulness of MEMs, Section VI.c will
analyze the obligation to settle international disputes peacefully, as

108 It seems that there is not a minimum threshold that the force used must
have to be framed under Article 2(4). Nevertheless, while the use of substantial
force reveals by itself the hostility of the conduct, it is true that small-scale forcible
acts per se do not represent hostility. Other facts must lead to such a conclusion.
For futher discussion, see Tom Ruys, The Meaning of ‘Force’ and the Boundaries of the
Jus Ad Bellum: Are “Minimal” Uses of Force Excluded from UN Charter Article 2(4)?,
108 AM. J. INT’L. L. 159 (2014).
109 This particular issue will be addressed in Section VI.a.
110 The Permanent Court of International Justice’s (PCIJ) traditional definition
of dispute will be adopted in this Article: “A dispute is a disagreement on a point
of law or fact, a conflict of legal views or of interests between two persons.” The
Mavrommatis Palestine Concessions (Greece v. U.K.), Judgment, 1924 P.C.I.J. (ser.
B) No. 3, at 11 (Aug. 30).

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 2023] Peaceful Purposes Reservation in the Law of the Sea 441

contained in Article 279 of LOSC and Article 2(3) of the U.N.

Charter, and contemplated in Articles 301 and 2(4).111

a. Sovereign Rights and Jurisdiction as Part of the Coastal State’s

Territorial Integrity

The Netherlands appears to take the position that a coastal state

cannot be the victim of an illegal threat or use of force in the EEZ. Its
interpretative declaration under Article 310 contends that “Article
301 must be interpreted, in accordance with the Charter of the
United Nations, as applying to the territory and the territorial sea of
a coastal state.” 112 One cannot read the Dutch declaration as
excluding the EEZ and the high seas from the spatial scope of
application of Article 301, a general provision of the LOSC that
restates a rule of customary international law. The adequate reading
seems to understand that beyond the territorial sea, there is no
territory to be protected by the territorial integrity principle
contained in Article 301. Such a suggested reading is further
reinforced by the fact that the Dutch interpretative declaration
specifically contradicts the Brazilian one. According to Brazil,
Article 301 “appl[ies], in particular, to the maritime areas under the
sovereignty or the jurisdiction of the coastal State.”113
One could address this debate by saying that the coastal state
does not enjoy territorial sovereignty over the EEZ. Consequently,
the application of Article 301 to the EEZ would not, in that respect,
differ from the one to the high seas (the victim state can only be a
flag state). Nonetheless, that answer appears to be shallow and
unsatisfactory since the EEZ may also be considered part of the
coastal state’s territorial status as an emanation of the land territory.

111 LOSC, supra note 1, arts. 2(4), 141, 301; U.N. Charter art. 2(4). Article 301 of
LOSC refers to “principles of international law embodied in the United Nations
Charter,” including the principle of peaceful settlement of international disputes.
Article 2(4) of the U.N. Charter refers to the “Purposes of the United Nations,”
which include the maintenance of international peace and security. This will be
elaborated in Section V.c.
112 This interpretative declaration was only filed in 2009. The Netherlands had
ratified the Convention in 1996 when it filed an interpretative declaration stating
that Article 56 does not authorize the coastal State to prohibit military exercises in
its EEZ. The interpretative declarations can be found on the United Nations Treaty
Collection. See supra notes 28, 101 and accompanying text.
113 Malaysia filed a similar declaration. To access the declaration, see supra
notes 28, 101 and accompanying text.

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 442 U. Pa. J. Int'l L. [Vol. 44:2

Indeed, in the law of the sea, few principles are as consolidated

as the principle of the domination of the land over the sea.114 In the
famous North Sea Continental Shelf Cases, the International Court of
Justice (ICJ) held that “the contiguous zone and the continental shelf
are in this respect concepts of the same kind [ . . . ] the land is the
legal source of the power which a State may exercise over territorial
extensions to seaward.” 115 In a dissenting opinion, Vice-President
Koretsky also asserted that “not only the territorial sea but also the
continental shelf may now be considered as ‘accessories’ of or, in the
words of the Judgment in the Fisheries case, as ‘appurtenant to the
land territory.’”116
Later, in the Aegean Sea Continental Shelf Case, the ICJ had to rule
on its jurisdiction in the maritime delimitation case between Greece
and Turkey. Considering that the submitted matter excluded
Greece’s “territorial status,” the Court understood that the
continental shelf rights were “an emanation from and an automatic
adjunct of the territorial sovereignty of the coastal State.” Therefore,
“the territorial régime—the territorial status—of a coastal State
comprises, ipso jure, the rights of exploration and exploitation over
the continental shelf to which it is entitled under international
law.”117
At the time of these judgments, the EEZ did not have an
undisputed legal regime.118 Nevertheless, it should be considered a
“concept of the same kind” (of the continental shelf and contiguous

114 This has been clear in international judicial practice since at least 1969
when the ICJ affirmed that “the principle is applied that land dominates the sea.”
Ever since, it has been widely referenced. North Sea Continental Shelf Cases
(Ger./Den.; Ger./Neth.), Judgement, 1969 I.C.J. 3, ¶ 96 (Feb 20); Land and Maritime
Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Eq. Guinea
intervening), Judgment, 2002 I.C.J. 303, ¶ 295 (Oct 10); Bing Bing Jia, The Principle of
the Domination of the Land over the Sea: A Historical Perspective on the Adaptability of
the Law of the Sea to New Challenges, 57 GERMAN Y.B. INT’L L. 63, 66 (2014); STEPHEN
FIETTA & ROBIN CLEVERLY, A PRACTITIONER’S GUIDE TO MAR. DELIMITATION 17 (2016).
115 North Sea Continental Shelf Cases (Ger./Den.; Ger./Neth.), Judgement,
1969 I.C.J. 3, ¶ 96 (Feb 20).
116 Id. at 159 (Koretsky, J., dissenting).

117 Aegean Sea Continental Shelf (Greece v. Turk.), Judgment, 1978 I.C.J. 3, ¶
86 (Dec. 19).
118 However, in 1982, in the Tunisia v. Libya case, the ICJ considered the EEZ
“[a] part of modern international law.” Continental Shelf (Tunis. v. Libya),
Judgment, 1982 I.C.J. 18, ¶ 100 (Feb. 24). In 1985, in the Libya v. Malta case, it was
the Court’s view that it was “incontestable that, [ . . . ] the institution of the exclusive
economic zone[ . . . ] is shown by the practice of States to have become a part of
customary law.” Continental Shelf (Libya v. Malta), Judgment, 1985 I.C.J. 13, ¶ 34
(June 3).

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 2023] Peaceful Purposes Reservation in the Law of the Sea 443

zone); a set of rights and jurisdiction which emanates from territorial

sovereignty and, just like the territorial sea, an accessory of, an
appurtenant to, or an adjunct of the land territory. Hence, the EEZ
is part of the territorial status of the state.119 In 2009, the ICJ explicitly
mentioned the EEZ as an emanation of the “land dominates the sea”
principle.120 Finally, as argued in Part V, the sovereign rights and
jurisdiction of the coastal state in the EEZ are ratione materiae limited
sovereignty.121
Given the above, one may conclude that the EEZ is protected by
the general prohibition of the use of force by foreign states in the
capacity of part of the coastal state’s territorial integrity. In this
sense, one should agree with Judge Attard:
While territorial integrity may require the containment of the
EEZ’s military uses, international security may require a
certain military use of the sea. It is the balance between these
contradictory realities which international law must achieve
with regard to the EEZ’s use for peaceful purposes.122
Attard’s is not a bold assertion. One can notice similar poise in
the Enrica Lexie Case. There, the Arbitral Tribunal understood that
Italy had not violated Article 88 (on the prohibition of the use of
force) because its jurisdiction over pirate ships and its duty to
repress piracy “cannot be viewed as a violation of Article 88 of the
Convention or as an infringement on the rights of the coastal State
in its exclusive economic zone.” 123 Mentioning the coastal state’s
sovereign rights was unexpected because India’s claim under
Article 88 was entirely made in the condition of flag state of the St.

119 Note that here the reference is not to territorial sea but to territorial status,
a concept within which the ICJ found rights in the continental shelf to be
encompassed. Following the same reasoning, sovereign rights in the EEZ should
also be understood as part of a State’s territorial status. The EEZ is still a sui generis
area vis-à-vis the territorial sea.
120 Maritime Delimitation in the Black Sea (Rom. v Ukr.), Judgement, 2009
I.C.J. 61, ¶ 77 (Feb. 3).
121 See discussion supra Section V.a.

122 ATTARD, supra note 97, at 69.

123 The “Enrica Lexie” Incident (It. v. India), Award, PCA Case No. 2015-28, ¶
1074 (Permanent Ct. of Arb. 2020),
https://www.pcacases.com/web/sendAttach/16500 [https://perma.cc/HPD8-
ACD6]. Some believe that an illegal use of force, under Article 2 (4), UN Charter,
does not disfigure a law enforcement operation as law enforcement. A particular
activity may be an illegal use of force and an illegal law enforcement operation
simultaneously, i.e., they are not mutually exclusive categories. See Marcos & Filho,
supra note 11.

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Anthony. 124 This obiter dictum might be seen as an indication of

support to the conclusion that the sovereign rights and jurisdiction
enjoyed in the EEZ are part of the coastal state’s territorial integrity.
Yet, as a dictum and for well-known reasons, it is less authoritative
than if it were a holding, part of the ratio decidendi. Furthermore,
considering that the EEZ has been recently seen through a “quasi-
territorial” lens, hostility is easily observable from a coastal state’s
standpoint.125

b. Coastal State’s Political Independence in Cases Concerning MEMs

in the EEZ

Turning to the political independence of the coastal state, naval

demonstrations as a particular type of MEMs are relevant.126 In that
regard, American FONOPs are the archetypal example 127 because
the United States maintains active resistance to excessive maritime
claims by conducting these operations. It usually resorts to
demonstrations of force through MEMs in the EEZ to dissuade other
states from keeping their “excessive maritime claims.”128 In practice,
FONOPs “fit the concept of gunboat diplomacy, particularly the
kind that uses ‘purposeful force’, [where] uses, displays, or threats
[of] force [are] aim[ed] at a particular purpose unrelated to the direct
consequences of the action.”129
In the Case concerning Military and Paramilitary activities against
and in Nicaragua, Nicaragua argued that “the [naval] manoeuvres
[conducted by the United States just outside Nicaraguan territorial
sea] themselves formed part of a general and sustained policy of
force intended to intimidate the Government of Nicaragua into

124 The fishing vessel thought to be a pirate attacked by the Italian marines in
the Enrica Lexie. See The “Enrica Lexie” Incident, PCA Case No. 2015-28, ¶ 1074.
125 Oxman, supra note 71, at 839.
126 For a discussion on MEMs, see supra note 19 and accompanying text.
127 Even though the United States is not a party to UNCLOS, it is still bound
by the prohibition on the use of force. Therefore, in ascertaining the content of the
PPR in the EEZ, this Article’s findings might also be used to evaluate the conduct
of this particular naval power. In fact, this Article’s relevance is closely tied to the
centrality American FONOPs have acquired in the last 40 years.
128 ELEANOR FREUND, FREEDOM OF NAVIGATION IN THE SOUTH CHINA SEA: A
PRACTICAL GUIDE 18-19 (2017).
129 JAMES CABLE, GUNBOAT DIPLOMACY: 1919-1991, at 33 (1994); Eduardo
Cavalcanti de Mello Filho, The Legal Regime of the Exclusive Economic Zone and Foreign
Military Exercises or Maneuvers, in 2 NUOVA ANTOLOGIA MILITARE 361, 381 (2021).

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 2023] Peaceful Purposes Reservation in the Law of the Sea 445

accepting the political demands of the United States

Government.” 130 The ICJ simply stated that it “is however not
satisfied that the manoeuvres complained of, in the circumstances in
which they were held, constituted on the part of the United States a
breach, as against Nicaragua, of the principle forbidding recourse to
the threat or use of force.”131 While one can raise this precedent to
claim that naval demonstrations, including in the EEZ, are lawful,
the ICJ’s statement has an essential qualification: “in the
circumstances in which they were held.” This means that under
other circumstances, the findings could be different.
The Corfu Channel Case is probably more specific on said
“circumstances.” In this case, the Court’s jurisdiction was tied to a
special agreement, the second question of which was whether the
United Kingdom had violated Albanian sovereignty. 132
Consequently, the Court refused to rule on the violation of the
prohibition of the use of force. It found that Operation Retail, the
British minesweeping operation in the Albanian territorial sea, had
violated the coastal state’s sovereignty. 133 Addressing the issue
directly, Judge Philadelpho Azevedo, in his dissenting opinion, was
explicit in referring to the British operation: “Apart from legitimate
defence, a counter-stroke confestim, ‘hot pursuit’, or an emergency,
nothing justifies the use of force, not even the pretext of reprisals.” 134
Furthermore, Judge Ečer, in his dissenting opinion, was even more
categorical: “I think further that the Judgment should mention,
amongst the arguments for its decision, the provisions of the United
Nations Charter, in particular, Article 2, paragraph 4, and Article
42.” 135 These opinions do not diverge from the ruling’s final
conclusion—that the United Kingdom violated Albanian
sovereignty. They simply defend a less self-contained behavior for
the Court, which could seem to fall outside the material scope of the
special agreement.
Nevertheless, the Court did address the issue indirectly. The
Albanian allegation that Operation Retail had “made use of an

130 Military and Paramilitary Activities in and Against Nicaragua (Nicar. v.

U.S.), Judgment, 1986 I.C.J. 14, ¶ 92 (June 27).
131 Id. ¶ 227.

132 Special Agreement concluded on March 25th, 1948, U.K.-Alb., Mar. 25,
1948, https://www.icj-cij.org/public/files/case-related/1/1495.pdf
[https://perma.cc/XNH8-FTZ6].
133 Corfu Channel Case (U.K. v. Alb.), Judgment, 1949 I.C.J. 4, 36 (Apr. 9).
134 Id. at 108 (Azevedo, J., dissenting).

135 Id. at 130 (Ečer, J., dissenting).

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unnecessarily large display of force, out of proportion to the

requirements of the sweep” provoked the ICJ’s concluding legal
analysis.136 The Court understood that the removal of mines carried
out by the United Kingdom in the Albanian territorial sea was not
“a demonstration of force for the purpose of exercising political
pressure on Albania.” 137 Instead, the Court deemed it
understandable, given that British ships had been previously the
object of severe outrages in that region.138 Considering this passage
and the “uncontained” opinions, it seems that the ICJ would
consider FONOPs an illegal threat of the use of force against the
political independence of the coastal state since they usually are “a
demonstration of force for the purpose of exercising political
pressure.” Exercising its freedom of navigation to employ political
pressure would also be an abuse of rights, the prohibition of which
can be derived from the general principle of good faith.139 Similarly,
the ICJ emphatically held that:
[t]he Court can only regard the alleged right of intervention
[UK’s act was still found to be in violation of Albanian
sovereignty] as the manifestation of a policy of force, such as
has, in the past, given rise to most serious abuses [ . . . ]
Intervention is perhaps still less admissible in the particular
form it would take here; for, from the nature of things, it
would be reserved for the most powerful States, and might
easily lead to perverting the administration of international
justice itself.140
Against this background, it would seem that a reasonable
balance for a legal attempt to justify FONOPs or similar activities
would be that these operations consist of assertions of existing
rights, and not of political pressure or dissuasion for other states to
abandon their “excessive maritime claims.” Nonetheless, it is
unclear whether FONOPs can be dissociated from political
contentions.

136 Id. at 35 (majority opinion).

137 Id.
138 Id.
139 LOSC, supra note 1, art. 300.
140 U.K v. Alb., 1949 I.C.J. at 35.

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c. The Obligation to Peacefully Settle Disputes Concerning MEMs in

the EEZ

Frequently, naval demonstrations presuppose a dispute. 141 In

such situations, the obligation to peacefully settle a dispute is
already engaged, and the naval demonstration might represent an
aggravation of the dispute in violation of that obligation. 142
However, a naval demonstration might as well be a projection of
force or a response to a prior act by another state.143 That is, there
might not be an underlying dispute. Considering naval
demonstrations without an underlying dispute and MEMs in
general, contextualization of the EEZ regime is necessary to analyze
the obligation to settle disputes peacefully.
If one assumes that third states have the freedom to conduct
military activities in a foreign EEZ, they should exercise this
freedom with due regard to the rights and duties of the coastal
state144 and respect the laws and regulations adopted by the coastal
state under LOSC and other compatible rules of international law. 145
The due regard obligation is an obligation of procedure, that is, it
stipulates how substantial freedom is to be exercised. It traditionally

141 This is clear, for instance, in MEMs taking place in disputed maritime
areas, where a particular state has an “excessive maritime claim” that is opposed
by the United States.
142 ”States parties to an international dispute, as well as other States shall
refrain from any action which may aggravate the Situation so as to endanger the
maintenance of international peace and security.” G.A. Res. 2625 (XXV), at 123 (Oct.
24, 1970).
143 Stephens & Skousgaard, supra note 19, ¶ 10.
144 The due regard obligation in the EEZ could not exist before the existence
of the EEZ itself. However, the due regard obligation, as contained in Articles 56,
58, and 87 (the latter applicable on the high seas), is a development made on the
former “reasonable regard obligation,” which already existed in the 1958 Geneva
Conventions. The International Court of Justice applied this concept to the
preferential rights of Iceland to fisheries. As such, this concept can be seen as a
precursor of the due regard obligation as contained in the 1982 Convention.
However, as relevant to this Article, the content of the due regard obligation has
been further substantially developed in only one case: the Chagos Arbitration, which
is analyzed below. Notably, ITLOS addressed the due regard obligations under
Articles 56 and 58, but only superficially. Fisheries Jurisdiction (U.K. v. Ice.),
Judgment, 1974 I.C.J. 3, ¶¶ 54, 78 (July 25); The M/V “Virginia G” (Pan. v. Guinea-
Bissau), Case No. 19, Judgment of Apr. 14, 2014, 18 ITLOS Rep. 4, ¶ 347; Request
for an Advisory Opinion submitted by the Sub-Regional Fisheries Commission,
Case No. 21, Advisory Opinion of Apr. 2, 2015, 19 ITLOS 4, ¶ 216; The M/T “San
Padre Pio” (Switz. v. Nigeria), Case No. 27, Order of July 6, 2019, 23 ITLOS 375, ¶¶
109-10.
145 LOSC, supra note 1, art. 58(3).

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 448 U. Pa. J. Int'l L. [Vol. 44:2

means awareness of the rights and duties of other states, considering

them and weighing them against one’s own rights and duties.146 It
is also contended that the weighing should not be made just by the
third state. If this were the case, the consequence would be absurd,
given that the only remaining possibility for the coastal state would
be to seek remedy for the violation in case the due regard obligation
had not been followed. In the end, the result would be equivalent to
the nonexistence of a due regard obligation.147
According to the Chagos Arbitral Tribunal, in the performance
of the due regard obligation, the assessment of the importance of the
relevant states’ rights in most cases “will necessarily involve at least
some consultation with the rights-holding States.” 148 Of course, it
would not be feasible to consult the coastal state for every single
maritime activity. In that connection, Prezas divides military
activities into two groups: those of a more intellectual dimension
and those of a more material dimension. 149 Among the first group
would be reconnaissance operations, military surveys, and
information-gathering activities. The second group would include
MEMs. It does not seem reasonable to require consultation
regarding intelligence-focused military activities, as it would hardly
affect coastal states’ rights and jurisdiction.150 As to material military
activities, the likelihood of jeopardizing the exercise of rights or

146 Ioannis Prezas, Foreign Military Activities in the Exclusive Economic Zone:
Remarks on the Applicability and Scope of the Reciprocal ‘Due Regard’ Duties of Coastal
and Third States, 34 INT’L J. MARINE & COASTAL L. 96, 99 (2019).
147 See id. at 106 (explaining that a third state should not in principle engage

unilaterally in the “balancing exercise” because the procedural component of the

‘due regard’ duty would otherwise be violated).
148 Chagos Marine Protected Area Arbitration (Mauritius v. U.K.), Award,
PCA Case No. 2011-03, ¶ 519 (Perm. Ct. of Arb. 2011), https://files.pca-
cpa.org/pcadocs/MU-UK%2020150318%20Award.pdf [https://perma.cc/2CEH-
GCBB] (“In the majority of cases, this assessment will necessarily involve at least
some consultation with the rights-holding State.”); see TANAKA, supra note 70, at 472
(“It can reasonably be presumed that the coastal State is normally in the best
position to specify areas of the EEZ which require particular caution. Hence it will
be desirable that a State intending to carry out military exercises should consult
with the coastal State.”).
149 See Prezas, supra note 146, at 109.

150 The controversy surrounding intellectual military activities generally

concerns the definition of MSR. For instance, China considers military survey a kind
of MSR and, thus, under its jurisdiction in the EEZ. See Pedrozo, supra note 74, at
20. Through a compelling contextual interpretation, naval powers find that military
surveys do not fall within the coastal State’s jurisdiction in the EEZ—in some
provisions, such as Article 19 of LOSC, survey and research are considered different
species. As such, it is not of direct concern to this Article, which focuses on the
prohibition of the use of force. See Pedrozo, supra note 74, at 22-23.

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jurisdiction by the coastal state is much higher. 151 Authors have

suggested that any presumption favors the need for notification and
negotiation in good faith if weapons or explosives are used.152
Given the above, consultations should precede material military
activities, particularly MEMs. If the due regard obligation is not
followed in this fashion, conducting material military activities may
well be considered hostile 153 —especially in a situation of high
political tension. If consultation happens and the coastal state
consents to the intended activity, there is no illegality. However,
following consultation, if the coastal state objects to the material
military activity based on its sovereign rights and jurisdiction, and
the third state decides to ignore this objection, such a decision would
likely display a hostile intent towards the coastal state. Beyond the
possibility of representing a threat to the territorial integrity of the
coastal state, such an action would be inconsistent with the
principles of international law embodied in the U.N. Charter. 154
These include maintaining peace and international security in
Article 1 and the obligation to seek peaceful means of dispute
settlement under Article 2(3). Indeed, in the Guyana v.Suriname
arbitration, the Tribunal held that “a claim relating to the threat or
use of force arising from a dispute under the Convention does not,
by virtue of Article 2(3) of the UN Charter, have to be ‘against the
territorial integrity or political independence’ of a State to constitute
a compensable violation.” 155 Facing a similar issue, the Eritrea-
Ethiopia Claims Commission understood that:
if the law were to recognise a State’s ability to use force
[military exercise] in a contested area peacefully
administered by another State based solely on the first State’s
claim of sovereignty the international prohibition on the use
of force would be significantly weakened.156

151 See Prezas, supra note 146, at 106 (explaining that non consultation would

likely result in a breach of the due regard obligation).

152 See e.g., Beckman & Davenport, supra note 76, at 47.

153 Boczek, supra note 7, at 379.

154 See supra note 11 and accompanying text.

155 Guyana v. Suriname, 30 R.I.A.A. 1, 118-19 (Perm. Ct. Arb. 2007).

156 Sean Murphy, Obligations of States in Disputed Areas of the Continental Shelf,
in NEW KNOWLEDGE AND CHANGING CIRCUMSTANCES IN THE LAW OF THE SEA 183, 204
(2020); Jus Ad Bellum - Ethiopia’s Claims 1-8 (Eri. v. Eth.), 26 R.I.A.A. 457, 463 (Eri.-
Eth. Claims Comm’n 2005) (“The Commission cannot accept the legal position that
seems to underlie the first of these Eritrean contentions—that recourse to force by
Eritrea would have been lawful because some of the territory concerned was

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 450 U. Pa. J. Int'l L. [Vol. 44:2

Adopting similar reasoning, Kohen underscores that the

prohibition of the use of force protects the attacked state’s territorial
integrity and its peaceful possession, mainly because of the need to
seek the peaceful settlement of disputes. The perfect example is the
Argentinian violation of the prohibition of the use of force against
British peaceful possession over the Falklands/Malvinas Islands,
despite Argentina’s claims of sovereignty over the Islands.
Responding to Argentina’s acts, the U.N. Security Council
Resolution 502 (1982) ordered the retreat of Argentinian forces.
According to the British representative, who had proposed the
Resolution, its purpose was not to decide who had sovereignty over
the Islands but to condemn the Argentinian resort to force.157 The
British perspective is in line with Judge Krylov’s dissenting opinion
in the Corfu Channel case:
[f]aced with the decision of Albania to make the passage of
warships conditional on a prior authorization, the United
Kingdom, instead of utilizing one of the peaceful methods
enumerated in Article 33 of the United Nations Charter in
order to settle the dispute which had arisen between her and
Albania, ordered four warships to make a passage through
the Strait.158
Besides the due regard obligation, Article 58(3) also contains a
substantive obligation to “comply with the laws and regulations of
the coastal State” if they are compatible with the LOSC and other
rules of international law. As such, any domestic regulation which
requires consent for military activities affecting the sovereign rights

territory to which Eritrea had a valid claim. It is true that the boundary between
Eritrea and Ethiopia in the area of Badme was never marked in the years when
Eritrea was an Italian colony, during Eritrea’s subsequent incorporation into
Ethiopia, or after Eritrean independence in 1993, and it is clear that the Parties had
differing conceptions of the boundary’s location. However, the practice of States
and the writings of eminent publicists show that self-defense cannot be invoked to
settle territorial disputes. In that connection, the Commission notes that border
disputes between States are so frequent that any exception to the prohibition of the
threat or use of force for a territory that is allegedly occupied unlawfully would
create a large and dangerous hole in a fundamental rule of international law.”).
157 MARCELO KOHEN, POSSESSION CONTESTÉE ET SOUVERAINETÉ TERRITORIALE
352-53 (1997). Other examples are India’s invasion of Goa in 1961, which was under
the possession of Portugal, and Iraq’s invasion and occupation of Kuwait in 1990.
Both “received widespread condemnation.” CHRISTIAN HENDERSON, THE USE OF
FORCE AND INTERNATIONAL LAW 21 (2018).
158 Corfu Channel Case (U.K. v. Alb.), Judgment, 1949 I.C.J. 4, 108 (Apr. 9)
(Krylov, J., dissenting).

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 2023] Peaceful Purposes Reservation in the Law of the Sea 451

or jurisdiction of the coastal state must be complied with by third

states because it is internationally lawful.159 The same is true for a
regulation that requires consent for military activities in general,
provided that the consent will be given if the intended activity does
not affect the coastal state’s sovereign rights or jurisdiction.
Following the same line of reasoning, conducting material military
activities breaching such a lawful regulation can be considered
hostile, just like an unauthorized military territorial incursion.160 A
dispute may arise as to the lawfulness of the denial of consent if, for
instance, the intended activity does not in fact affect the coastal
state’s rights or jurisdiction. Still, in such a situation, the third state
has an obligation to settle it through peaceful means, i.e., it should
not unilaterally assess the illegality of the denial and conduct
military exercises over the coastal state’s objection.
Lastly, according to Article 51 of the U.N. Charter, unilateral use
of force is only legal as an exercise of self-defense from an armed
attack. An excessive maritime claim or an illegal denial of consent is
not an armed attack and, therefore, the right of self-defense is not
triggered. Also, an excessive maritime claim does not preclude the
wrongfulness of a naval operation to exercise political pressure over
the coastal state. Faced with a denial of consent based on the rights
and jurisdiction of the coastal state, the third state should seek
peaceful means of resolving the dispute. It is doubtful that such a
dispute would ever be taken to an international tribunal. 161
However, if the third state seeks in good faith to peacefully settle the
dispute and the coastal state does not solidly justify its denial, then
the third state has complied with Article 2(3) and does not have
reasons to believe that its actions will infringe the territorial integrity
of the coastal state or be incompatible with the principles of
international law embodied in the U.N. Charter.

159 See Prezas, supra note 146, at 111-12.

160 Ruys, supra note 108, at 174-76.
161 The United States, not a party to the LOSC, is not bound by Part XV’s
compulsory dispute settlement. Other naval powers have opted out of it through
the military activities exception. China, Russia, France, the United Kingdom, and
South Korea are prominent examples. Lori Fisler Damrosch, Military Activities in the
UNCLOS Compulsory Dispute Settlement System: Implications of the South China Sea
Arbitration for U.S. Ratification of UNCLOS, 110 AM. J. INT’L L. 273, 274 (2016).

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VI. CONCLUSION

This Article asked whether the PPR restricts third states’ abilities
to conduct MEMs in the EEZ in any capacity. To answer this
question, this Article offers a general perspective on PPRs in the
LOSC. This was necessary for two interconnected reasons. First,
analyzing PPRs throughout the whole Convention presents a more
comprehensive outlook of the peaceful purposes reservations.
Second, such an outlook is relevant because the interpretation of
Article 88 as applied to the EEZ is considerably based on a
contextual interpretation that necessarily considers other
provisions.
We conclude that Article 301 guides the interpretation of PPRs,
thus prohibiting the use of force. Apart from a contextual
interpretation, having seen that “peaceful uses” (Article 301) and
“peaceful purposes” mean essentially the same, we have shown that
in analyzing the specific context of each PPR provision in the LOSC,
the narrow interpretation still prevails. Furthermore, the subsequent
practice of states—especially regarding the EEZ—is not enough yet
to lead to a different understanding.
However, defending that “peaceful purposes” has a single
meaning in the Convention, following Article 301, does not mean
that its application is the same in every maritime space. The
application of the prohibition of the use of force is different on the
high seas compared to its application in a territory under state
sovereignty. Likewise, the EEZ has a unique legal regime that
should be considered in applying Article 301. As demonstrated, the
coastal state’s rights in the EEZ should be regarded as within its
territorial integrity and, therefore, protected by the prohibition of
the use of force. Also, the EEZ’s regime does not admit that a third
state unilaterally decides whether its intended act affects the coastal
state’s rights or jurisdiction. If one agrees that all states have the
freedom to conduct military activities in the EEZ, as per Article
58(1), one must concede that it should be exercised with due regard
to the rights and duties of the coastal state and respect its
internationally lawful regulations.
As part of the due regard obligation, the exercise of some
military activities, particularly those of a more material dimension,
require prior consultation of the coastal state since it is more likely
to affect its legal interests in the EEZ. The coastal state’s objection
grounded on its rights may create a dispute between both states.

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Carrying out MEMs without prior consultation or despite an

objection of the coastal state can be seen as a hostile act. It breaches
the obligation to seek to resolve disputes peacefully and, possibly,
the obligation to respect the coastal state’s territorial integrity. Both
principles are protected by the prohibition of using force, which is
considered to have been violated in this case. If the third state
conducts MEMs to exercise political pressure on the coastal state,
then the threat is unlawful, i.e., there is no need to evaluate whether
it affects the coastal state’s rights. Considering the EEZ’s legal
regime, Article 301 privileges a procedure that should protect the
coastal state against third states’ arbitrariness. Finally, one must
keep in mind that the analysis conveyed here presupposes that the
third state has the freedom to conduct military activities in a foreign
EEZ. A preliminary debate consists of ascertaining whether the third
state has such freedom or whether the coastal state can regulate
foreign military activities. In fact, the view proposed here assumes
the worst-case scenario for coastal states.

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