This is a list from The Tufts University, Fletcher School, Law of the Sea Policy Primer, concerning the US dispute with China's "unlawful" claims to the South China Sea:*
Other Unlawful Coastal State Restrictions on Military Activities Within an EEZ
Eighteen States purport to regulate or prohibit foreign military activities in their EEZs, but of these only China, North Korea, and Peru have demonstrated a willingness to use force to impose their excessive EEZ claims. A list of the most common of these unlawful constraints is provided below:
- Restrictions on “non-peaceful uses” of the EEZ without consent, such as weapons exercises;
- Limitations on military marine data collection (military surveys) and hydrographic surveys without prior notice and/or consent;
- Requirements for prior notice and/or consent for transits by nuclear-powered vessels or ships carrying hazardous and dangerous goods, such as oil, chemicals, noxious liquids, and radioactive material;
- Limiting warship transits of the EEZ to innocent passage;
- Prohibitions on surveillance operations (intelligence collection) and photography;
- Requiring warships to place weapons in an inoperative position prior to entering the contiguous zone;
- Restrictions on navigation and overflight through the EEZ;
- Prohibitions on conducting flight operations (launching and recovery of aircraft) in the contiguous zone;
- Requiring submarines to navigate on the surface and show their flag in the contiguous zone;
- Requirements for prior permission for warships to enter the contiguous zone or EEZ;
- Asserting security jurisdiction in the contiguous zone or EEZ;
- Application of domestic environmental laws and regulations; and
- Requirements that military and other State aircraft file flight plans prior to transiting the EEZ*
*Military Activities in an Exclusive Economic Zone (EEZ) https://sites.tufts.edu/lawofthesea/chapter-4/
Several of these "unlawful" restrictions as the US characterizes them are not so unreasonable. Is it really asking too much to have a US aircraft carrier or other foreign warship not conduct military flight operations within the contiguous zone? The US has a historical tendency to push these legalisms to their operational limit. The US Navy and US Air Force are accustomed to doing so. Maybe you can get away with it in the case of Cuba or Libya.
Should foreign warships be allowed to operate weapon systems with ranges capable of reaching the territory of China within the contiguous zone? Is this a good idea or gunboat diplomacy? If I were Joe Biden i would be leery of letting the Defense Department set these policies. These are a matter for civilian control, and discretion is the order of the day. Should the relevant state of the EEZ not be able to regulate the environmental laws in the EEZ? Would practice bombing, discharging munitions, fuel or waste in the South China Sea not damage the environment and ecology?
Military vessels and aircraft can always expect to encounter the armed forces of the ADIZ, EEZ, or contiguous zone state especially when intentionally entering the contiguous zone. I know that Chinese aircraft occasionally enter the ADIZ of S.Korea or Taiwan, without giving notice and it always referred to in the western media as some form of an "airspace incursion" or implied military aggression but when the US does it, it's under the rules of international law. (When i do it it's love, when you do it, it's adultery). As far as the relevant nation wanting to have some supervision of the use of pipelines or the passage of nuclear powered vessels or hazardous cargo in its EEZ, this doesn't seem unreasonable either.
One can make the case that military aircraft should be able to have free passage right up to the twelve mile limit, which is what the western powers do. I have read scores of reports of US military aircraft operating in the Chinese littoral in the East China Sea and South China Sea in the last few years WITHOUT incident. The Tufts article I linked to here, reports on about a half dozen incidents of what military flyers call "thumping" of US aircraft by Chinese interceptors over roughly a twenty year period. Admittedly it's a dangerous practice. When one flies a military aircraft in the contiguous zone of major power, this is an anticipated risk. Tufts is one of the academic headquarters for US military policy advocacy. They use the official Navy JAG source as their authoritative source for their write up on this subject. Another portion of the "policy primer" portrays the PCA compulsory arbitration on the Philippine claims as if it were the bible when international scholars have questioned the putative jurisdiction of the court over China under the the law and the facts of the case.
I have presented the argument elsewhere on why the ITLOS/PCA compulsory arbitration concerning the Chinese Philippine dispute is a nullity and legally void. The bottom line is there is no PCA/ITLOS jurisdiction over Chinese sovereignty claims:
…The overall obligation to submit to a compulsory conciliation procedure under 298(1)(a)(i) will however not apply in respect of a maritime boundary dispute which “necessarily involves the concurrent consideration of any unsettled dispute concerning sovereignty or other rights over the continental shelf or insular territory”.21 In other words, obligation contained in article 298(1)(a)(i) to submit a conciliation procedure is subject to three conditions: (i) the dispute should have arisen after the Convention entered into force; (ii) no agreement could be reached between the parties settling the dispute within a reasonable period of time; and (iii) that the dispute did not involve “the concurrent consideration of any unsettled dispute concerning sovereignty or other rights over continental shelf or insular land territory”.*
*The South China Sea Arbitration (The Philippines v. China): Assessment of the Award on Jurisdiction and Admissibility Sreenivasa Rao Pemmaraju Author Chinese Journal of International Law, Volume 15, Issue 2, June 2016, Pages 265–307, https://doi.org/10.1093/chinesejil/jmw019 Published: 20 June 2016 https://academic.oup.com/chinesejil/article/15/2/265/2548386
The US position on FON is an advocacy position based upon the greatest extension of US national interests. The Chinese claims represent the greatest extension of Chinese historic national, economic, and military interests as well. FON itself except insofar as it affects core national security interests of China such as in US military operations in the contiguous zone of Hainan, or of the mainland, is not the main issue. The main issue concerns the EEZ claims of China associated with the various island groups. Likewise, the artificial islands confrontations are simply a wedge issue to shoehorn the US Navy into the claims of other states in the region to competing or overlapping EEZs. Other than for Japan and Australia, it isn't clear how welcome these unnecessary US provocations are. The US military flyovers and encroachments within twelve miles of artificial islands are going to provoke a military response from China, whether they are technically legal or not.
It seems to me that all these issues are ripe for negotiation with China. I don't think the US is really interested.
(Added notes Feb. 13)
This is the underlying US motivation:
Exxon's South China Sea oil project tests Chinese influence
SINGAPORE (Bloomberg) - An Exxon Mobil oil and gas project off the coast of Vietnam is becoming a test of Beijing’s growing power in the South China Sea.
Vietnam’s foreign ministry this month sought to shoot down rampant speculation that Exxon will sell its 64% stake in the country’s largest offshore energy project Ca Voi Xanh, or Blue Whale, a joint venture with state-owned Vietnam Oil & Gas Group some 80 kilometers (50 miles) from the coast of Danang. While the project sits just outside of China’s claims in a nine-dash map of the waters, it would tap the same basin that Beijing is seeking to develop.
Vietnam has become increasingly isolated in its efforts to push back against China, which is nearing a deal with the Philippines for joint energy exploration in a contested area of the sea and just set up one-on-one talks with Malaysia to settle disputes in the waters. At stake are unexploited hydrocarbon resources the U.S. says could be worth $2.5 trillion.
https://www.worldoil.com/news/2019/9/23/exxon-s-south-china-sea-oil-project-tests-chinese-influence
U.S. sanctions China’s CNOOC on drilling in disputed South China Sea
CNOOC has been at the center of territorial disputes in the South China Sea since 2012, when it invited foreign drillers to explore blocks off Vietnam that Hanoi’s leaders had already awarded to companies including Exxon Mobil and OAO Gazprom. In 2014, the countries traded accusations that each other’s boats had rammed vessels, including around a CNOOC oil rig near the Paracel Islands.
The Philippines in October resumed oil exploration in the South China Sea for the first time since 2015, when the nation filed a case with the Permanent Court of Arbitration over the disputed waters. The resumption came after Manila and Beijing reached a framework agreement for joint exploration. Philippine firm PXP Energy Corp. has said it’s in talks with CNOOC for such a partnership.
https://www.worldoil.com/news/2020/11/30/us-sanctions-china-s-cnooc-on-drilling-in-disputed-south-china-sea
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