The Dragon-Kings Restraint: Proposing a Compromise for the EEZ Surveillance Conundrum

59 Pages Posted: 14 Aug 2017 Last revised: 10 Mar 2018

See all articles by Asaf Lubin

Asaf Lubin

Indiana University Maurer School of Law; Berkman Klein Center for Internet & Society; Yale University - Information Society Project; Federmann Cybersecurity Center, Hebrew University of Jerusalem Faculty of Law

Date Written: August 10, 2017

Abstract

The U.S. and China are at it again, as naval and aerial interceptions in and around the South China Sea become a matter of disturbing routine. At the heart of the dispute stands the lingering question of whether customary international law as reflected in the United Nations Convention on the Law of the Sea (UNCLOS) authorizes third State to engage in surveillance and military maneuvers in Coastal states EEZ without their consent. The answer lies in interpreting Article 58(1) of UNCLOS.

This paper aims to respond to the calls put forward by States, scholars and research institutes to promote a legal compromise between permissive and prohibitive interpretive approaches to UNCLOS Art. 58(1). The traditional interpretation of the Article, and the EEZ Surveillance conundrum more broadly, has thus far been reviewed by scholars solely through the lenses of the age-old debate between Hugo Grotius and John Selden over Mare Liberum and Mare Clausum. In other words, existing scholarship treats the dispute as a binary zero-sum game.

Following in the footsteps of Prof. Lissitzyn, the model proposed in the Article recognizes the freedom of navigation premise as an analytical starting point, but nonetheless introduces, for reasons of maintaining minimum order, a set of restraints ("necessity," "last resort," and "proportionality") to be internalized by third States' in deciding whether to launch intelligence operations in another coastal State’s EEZ. To develop these standards the paper examines the limits of a State's right to spy under international law and the effects that advancements of surveillance technology have had over our evolutionary interpretation of UNCLOS. The paper's nuanced approach thus treats the EEZ surveillance problem as a microcosm through which to examine meta- issues concerning the function intelligence plays in our public world order.

Keywords: Law of the Sea, Espionage, Surveillance, Reconnaissance, International Law, Evolutionary Interpretation of Treaties, Abuse of Rights, UNCLOS, China, United States, Russia, Exclusive Economic Zone, Law and Technology

Suggested Citation

Lubin, Asaf, The Dragon-Kings Restraint: Proposing a Compromise for the EEZ Surveillance Conundrum (August 10, 2017). Washburn Law Journal, Volume 57, Issue 1, Winter 2018, 17-75, Available at SSRN: https://ssrn.com/abstract=3016431 or http://dx.doi.org/10.2139/ssrn.3016431

Asaf Lubin (Contact Author)

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