Military Exercises Involving Live Firing in the EEZ and the “Due Regard” Obligation in 1982 Unclos

The conduct of military activities involving the live firing of weapons by one State in the EEZ of another State has been a source of controversies since the provisions on the EEZ were agreed upon in the UNCLOS, 1982. Article 58 provides that all States enjoy the freedoms of navigation and overflight, and other internationally lawful uses of the sea related to these freedoms, in the EEZ of other States. It further provides that in exercising such rights in the EEZ of other States, States shall have “due regard” to the rights and duties of the coastal State in the EEZ. There has been a continuing debate on how the “due regard” provision applies to the conduct of military exercises involving the live firing of weapons. Given the potential interference that such exercises might cause to the rights and duties of the coastal State in its EEZ, the State that intends to conduct such exercise in the EEZ of another State should notify and consult the coastal State before conducting such exercises. This interpretation of article 58 is supported by the reasoning of ITLOS in the 2015 Chagos Marine Protected Area Arbitration Case and by article 9 of the 1967 Outer Space Treaty. If the US Navy followed this practice before conducting such exercises in the EEZ of States in Southeast Asia, it would enhance the prestige and standing of the US in the region.