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On 23 March 2001, the hydrographic survey ship USNS Bowditch (T-AGS 62) was conducting routine military survey operations in China's claimed exclusive economic zone (EEZ) in the YellowSea when it was "aggressively confronted" by a Chinese Jianheu III-class frigate and ordered to leave the EEZ.1 Being an unarmed naval auxiliary vessel, Bowditch changed course and left the area as instructed. A few days later, the U.S. embassy filed a strongly worded diplomatic protest with the Chinese Ministry of Foreign Affairs, and Bowditch returned to the area of the encounter, this time with an armed U.S. escort, to continue its mission.2
Eight years and a new U.S. administration later, the People's Republic of China (PRC) has once again taken aggressive, unsafe, and unprofessional action against an unarmed naval auxiliary vessel-this time the ocean surveillance ship USNS Impeccable (T-AGOS 23)-that was engaged in lawful military activities in China's claimed EEZ. On 8 March 2009, five PRC vessels- a navy intelligence ship, a government fisheries-patrol vessel, a state oceanographic patrol vessel, and two small fishing trawlers-surrounded and harassed Impeccable approximately seventy-five miles south of Hainan Island in the South China Sea.3 The fishing trawlers maneuvered within twenty-five feet of Impeccable and then intentionally stopped in front of it, forcing Impeccable to take emergency action to avoid a collision.4 The U.S. government protested the PRC's actions as reckless, unprofessional, and unlawful. China responded that Impeccable's presence in China's claimed EEZ had been in violation of Chinese domestic law and international law.5 Impeccable returned to the area the next day under escort of a guided-missile destroyer, the USS Chung-Hoon (DDG 93).
The PRC position with regard to coastal-state control over foreign military activities in the EEZ is threefold: national security interests, resource/environmental protection, and jurisdiction over marine scientific research (MSR). As discussed in detail below, the PRC's position is inconsistent with international law (including the 1982 UN Convention on the Law of the Sea) and state practice. The PRC's position is also somewhat disingenuous, as PRC naval units routinely conduct submarine operations, military survey operations, and surveillance/intelligence-collection operations in foreign EEZs throughout the Asia-Pacific region.
In short, nothing in the 1982 UN Convention on the Law of the Sea (UNCLOS) changes the right ofmilitary forces of all nations to conduct...