UNCLOS Navigational Regimes and their Significance for the South China Sea

A feature of the modern law of the sea as it has evolved through the 1958 Geneva Conventions, UNCLOS, ¹ and state practice into the twenty-first century has been a capacity to balance the rights and interests of coastal states with those of maritime states. Initially, when the territorial sea was developed the interests of coastal states were conceived in terms of national security and the limited assertion of state sovereignty over a narrow band of adjacent waters. However those interests have now expanded to include concerns over the marine environment, health of marine living resources, threats posed by non-state actors such as terrorist groups, and the management of ocean space extending from the territorial sea out through adjacent maritime zones to the edge of the continental shelf. Accordingly, whilst UNCLOS sought to ensure a careful balance between the interests of coastal states and maritime states in the innocent passage regime through the territorial sea, as the concerns of coastal states over the security of the territorial sea expanded so too does the potential for increased interference with innocent passage. ² The tension, which has arisen in the past for some coastal states over innocent passage by foreign warships, ³ has in recent decades been extended to include vessels that are deemed to constitute an unacceptable environmental risk. ⁴ These constraints however do not end at the limits of the territorial sea, and one of the contemporary challenges of the current law is ensuring that there are reasonable limits to coastal state regulation of an ever expanding array of activities within the adjoining exclusive economic zone (EEZ). Whilst some of these initiatives, including the creation of maritime identification zones, may be considered benign or consistent with coastal state rights created under a loose amalgam of United Nations Security Council resolutions and new conventional law dealing with maritime security, the impact of these measures upon the traditional freedom of the seas beyond the limits of the territorial sea needs to be carefully considered.