Militarising exclusive maritime zones – a new global US security doctrine?Oct 2, 2023
International law of the sea is set to be subverted as America seeks to exercise extraterritorial defence claims over foreign exclusive economic zones beyond those of three Pacific island states.
The United States is about to upend the United Nations Convention on the Law of the Sea (UNCLOS), the basis of international law with regard to the oceans and maritime resources. Its new maritime claims, if not reversed, will likely encourage other countries, especially rival states such as China, to do the same.
As I reported previously, the US is about to turn the maritime exclusive economic zones (EEZs) of the Marshall Islands, Palau and Micronesia into zones of defence entirely controlled by the US military in addition to the defence of their territorial seas, lands and air. That’s quietly being done by the renewal of their long-standing mutual compact as “freely associated states” with the US.
Bear in mind that these are notionally sovereign states that have formally agreed under the compact to give up their own defences. If access to their EEZs can be denied to other countries at the discretion of the US military, what’s stopping the US from asserting the same right of denial of access to all the EEZs of continental US, Alaska and its other overseas dependent territories? And what of those of its allies and partners?
Like the secret “torture memo” legalising torture under the George W. Bush administration, there are probably already secret documents and doctrines legitimising such an interpretation of EEZs against international law and its own previous position on access to them.
A highly contentious point
Sovereign or territorial waters, the maritime equivalent of sovereign land, extend from shores to 12 nautical miles. From there out to 200 nautical miles are what people usually call EEZs.
The right of a foreign military to freely enter the EEZ of another country, however hostile, has long been a contentious issue. One reason is the insistence of the US to be able to sail its navy freely everywhere around the world short of someone else’s territorial waters. That is why it argues its navy and air force have every legal right to sail and fly close to the coasts of China, never mind how provocative such exercises may be.
After all, the US has the only navy that can literally reach any corner of the world; any restriction, legal or military, is considered a challenge to its supremacy.
The US’ legal position on EEZs is backed by most of its allies, many of whose defence and security depend on the US. It is, of course, challenged by many others.
Most interestingly, even some of China’s neighbours that have long-standing border or maritime disputes agree with China – such as India, Indonesia, Malaysia and Vietnam – that states do have the right to limit access to foreign militaries for security purposes in their EEZs.
What constitutes foreign military activities is, unsurprisingly, another point of contention among even those who dispute the US and its allies’ position on military access to EEZs.
Some take a very broad interpretation of international law such that foreign warships and their military planes do not have automatic right of “innocent” passage. Others restrict only military activities such as close surveillance and reconnaissance. Not unreasonably, they argue such military actions work against their national security and defence and are by definition not covered by freedom of navigation (FON).
The letter of the UNCLOS may be arguable on this point, but its spirit is pretty clear. Its “peaceful purposes reservations” clearly aim to promote peaceful navigation as the purpose of FON, as applying to both the high seas or international waters and EEZs. It would indeed be illogical to encourage military activities close to someone’s territories but discourage them further afield.
But lawyers and governments can argue these points ’til kingdom come.
A new US military doctrine?
Whatever your position on foreign military access to other people’s EEZs, the discussion above merely aims to provide the background to the radical position or U-turn that the US has taken.
At least with the Marshall Islands, Palau and Micronesia, Washington is now prepared to assert its full right to deny foreign military activities in their EEZs. Note that it is not asserting the right for those three island states – over which it exercises complete defence or military control under formal pacts akin to treaties – to deny other countries from entering their EEZs for security reasons. That would at least keep up appearances.
Rather, it is saying by the right of a bilateral treaty or pact, it can flout international law and turn their EEZs effectively into extraterritorial US defence zones.
By their very name, EEZs are codified under UNCLOS to enable countries to exploit and develop their own maritime resources for economic betterment. But at least for some countries, they have also served as de facto security buffers such as against piracy, human smuggling and foreign incursions.
However, to turn someone else’s EEZs into your own defence or offensive zones as the US is doing across the central Pacific to form effectively a sphere of influence – obviously against China – is taking things to the utmost extremes.
If the US can make such an extraterrestrial claim, it will and indeed must assert the same right for the EEZs around its own territories, and not just for continental US but overseas.
And what’s to stop other US allies from following suit, especially those which host US military bases and other combat assets? According to one estimate, EEZs have taken up to 36 per cent of what was previously regarded as high seas or international waters.
The US will be leading the militarisation of EEZs on a global scale, and that will be much worse than any threat the Chinese can come up with, such as the nine or even 10-dash line.
Diego Garcia: a potential test case
Consider Diego Garcia, which has long been used as a major military base for the US in the Indian Ocean. It is the largest island of the Chagos Archipelago, which has been a British administered territory since the early 19th century.
However, the UN’s highest court, the International Court of Justice in The Hague, has already issued an advisory ruling that the archipelago should be returned to Mauritius. Years after the ruling, the two sides have now finally started negotiations. But whatever the status of the archipelago, Britain and Mauritius have agreed at the outset that the US will retain control of its military base there. (For amusement, you may want to read Boris Johnson’s latest hysterical piece in the Daily Mail claiming the UK is being “spineless” for giving up another British territory and that the Chinese might bribe Mauritius into cancelling the US base.)
That China threat again! In fact, Mauritius will be more than happy to lease – as it has said so repeatedly – Diego Garcia to the US military in exchange for aid and subsidies. Mauritius turned against the UK and demanded return of the territory just because London cancelled its aid about a decade ago.
It now seems only a matter of time before Mauritius wins back possession of the archipelago. In exchange for aid and subsidies, will the US be demanding military control of the Chagos’ EEZs from Mauritius as well – just like it has now done with the Marshall Islands, Palau and Micronesia? It seems more than likely. And what about the dozens of host countries of hundreds of US military bases around the world? Will the US ask them to assert their right of denial for foreign assets to enter their EEZs? Some likely will be asked.
In the emerging new cold war, that prospect is too disturbing to contemplate – for that effectively means militarising much of the oceans.
First published in the South China Morning Post September 26, 2023