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International Law Studies

Abstract

The article explores the contours of intelligence gathering in the Exclusive Economic Zone (EEZ) under the international law of the sea. Intelligence gathering in the maritime domain is significant for military and law enforcement purposes and for both coastal States and other States. Intelligence gathering attains even more prominence in the EEZ due to the sensitive location and importance of resources to the coastal State, while the sui generis legal nature of this zone adds further complexity to this inquiry. Indeed, the law of the sea, as reflected in the Law of the Sea Convention, neither explicitly prohibits nor permits the collection of intelligence by other States in the EEZ. Equally, it is silent on the permissibility of intelligence gathering on the part of the coastal State.

While acknowledging the complexity of legal issues pertaining to the EEZ, this article asserts that intelligence gathering within the EEZ would fall under a presumption of unlawfulness favoring the coastal State when the intelligence pertains to its economic interests. In contrast, the presumption would favor other States, rather than the coastal State, when the gathering of intelligence is a mere expression of the jus communicationis of the other State. Moreover, other pertinent rules of international law, ranging from the prohibition of the threat of the use of force and the abuse of right to the customary right of approach may find application when deciding whether the intelligence gathering activity violated the rights of the coastal State or other States. Intelligence gathering is certainly a difficult question to address, yet one that international law of the sea affords answers.

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