Military Activities In The Exclusive Economic Zone Under UNCLOS: A Functional Proportionality Test For The Due Regard Standard
- IJLLR Journal
- Jul 11
- 1 min read
S. P. Mohan Raj, LL.M., University of Madras, Chennai
ABSTRACT
The exclusive economic zone under the United Nations Convention on the Law of the Sea, 1982, represents a carefully drawn compromise between coastal State resource authority and the navigational freedoms of other States. That compromise has become increasingly contested where coastal States claim that foreign military exercises or manoeuvres in the EEZ require prior consent. Several maritime States reject such claims, arguing that UNCLOS preserves navigation, overflight, and other internationally lawful uses of the sea in the EEZ. The difficulty lies in Article 58(3), which requires States exercising EEZ freedoms to have due regard to the rights and duties of the coastal State. This article argues that due regard should not be read as a general coastal State security veto. Using the interpretive approach reflected in Articles 31 and 32 of the Vienna Convention on the Law of Treaties, and drawing on UNCLOS, State practice, and jurisprudence including the Chagos Marine Protected Area Arbitration, M/V Saiga (No. 2), Corfu Channel, and the South China Sea Arbitration, the article proposes a Functional Proportionality Test. A coastal State restriction should be treated as legally sustainable only where it has a treaty nexus, does not disproportionately impair navigational freedoms, and is based on observable conduct rather than abstract security apprehension. Applied to India's declaration and the 2021 United States Freedom of Navigation Operation near Lakshadweep, the test suggests that broad prior-consent requirements are difficult to reconcile with UNCLOS, while limited and fact-specific measures protecting recognised EEZ interests may remain permissible.
Keywords: UNCLOS; exclusive economic zone; due regard; military activities; freedom of navigation; India; proportionality; maritime security.
