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Draft guidelines for military and intelligence gathering activities in the
EEZ and their means and manner of implementation and enforcement
, , Alexander Yankovb,
and Anthony Berginc,
aDepartment of Maritime Affairs and Fisheries, Medan Merdeka Timur no 16, Jakarta Pusat 10110, Indonesia
bInternational Tribunal for the Law of the Sea, Am Internationalen Seegerichtshof 1, 22609 Hamburg, Germany
cAustralian Defense Studies Center, University of New South Wales, Canberra ACT 2600, Australia
Available online 6 October 2004.
Hasjim Djalala, , , Alexander Yankovb, and Anthony Berginc,
Specific voluntary guidelines are proposed for military and intelligence gathering activities in the EEZ. Views on the guidelines range from strong reservations regarding any restrictions on these activities to support for some restrictions. There is general support for the effort to promote mutual understanding and agreement on the rights and obligations of the maritime powers which do not want any rules and coastal States that want some predictability and protection against intimidation. The challenge is to find a practical way of handling these issues. Suggestions are provided regarding requisite specific assurances and the process for implementing and enforcing any such guidelines. State consent and State practice will play a significant role in this process.
Keywords: EEZ; Guidelines for military and intelligence
gathering activities; Means and manner of implementation and enforcement
The provisions of the 1982 UNCLOS on the legality or permissibility of military and intelligence gathering activities in the EEZ of other countries are ambiguous. Some states, particularly maritime powers, argue that there is no provision in the 1982 UNCLOS prohibiting such activities. In fact, they argue, that those activities are within the meaning and the exercise of the freedoms of the sea, particularly the freedoms of navigation and overflight, which are clearly recognized in the 1982 UNCLOS. On the other hand, many developing coastal countries consider that those activities are prejudicial to their national security and therefore are not within the meaning of peaceful uses of the sea also stipulated by the 1982 UNCLOS. They argue that those activities clearly intended for military purposes are already non-peaceful and cannot be undertaken. Indeed, some States, including those in the Asia-Pacific region, have formulated unilateral legislation prohibiting or restricting intelligence gathering and military activities, including military exercises, of foreign naval and air forces in and above their EEZ.
Moreover, the differences in the interpretation of these provisions have in fact led to some unfortunate incidents, resulting in death and loss of property, including military aircraft. In view of the ambiguity of the provisions of the 1982 UNCLOS regarding this matter, it is considered necessary to develop a common understanding or some guidelines—bilaterally, regionally, or internationally.
In proposing such guidelines, we must take account of the following: (1) the “sovereign rights” of the coastal States in exploiting and managing the living resources of their EEZ as well as their “jurisdiction” with regard to artificial islands, installations and structures, and the conduct of marine scientific research (MSR) as well as the protection and preservation of the marine environment in their EEZ, as stipulated in Article 56 of the 1982 UNCLOS; (2) that all States enjoy the freedoms of navigation and overflight in the EEZ in accordance with Article 58 of 1982 UNCLOS, and (3) that many provisions of the 1982 UNCLOS regarding the high seas are also applicable to the EEZ, particularly Articles 88–115 and other pertinent rules of international law “in so far as they are not incompatible” with the sovereign rights and jurisdictions of the coastal States.
With this in mind, the following are proposed as guidelines regarding military and intelligence gathering activities in the EEZs of other countries:
1. Some coastal States already have national/unilateral legislation regarding military and intelligence gathering activities, including military exercises, by foreign military vessels and aircraft in their EEZ. Those States should make their legislation as transparent and as widely known as possible, including to the military authorities of other countries that are frequently using or navigating their EEZ. The dissemination or the receipt of the legislation by other countries should not and would not constitute recognition or refusal to recognize the legality of the legislation by the receiving States, unless specifically so stated by the receiving States or authorities.
2. A copy of those laws should also be deposited with the UN Secretariat, as well as placed on the UN website for easy reference by any interested States, authorities, or persons, with a view to increasing transparency and mitigating any hostile intentions.
3. Without prejudice to the legal position of the navigating/exercising military vessels and aircraft, the military vessels and aircraft in exercising the freedoms of navigation and overflight in the EEZ, should make every effort to observe and comply with the coastal State's legislation on the basis of “goodwill,” non-abuse of rights, and the maintenance of a positive political climate in the area. This voluntary action would be without prejudice to the rights of the military vessels and aircraft to protect their safety and security. If a maritime country concerned chooses not to observe a coastal State's law, it should notify the State as to what it intends to do and why, and how it proposes to eliminate or prevent a misunderstanding with the coastal State.
4. As necessary, the relevant States should begin or continue a dialogue seeking a mutually acceptable solution or modus operandi, first bilaterally, and if possible, regionally at a later stage.
5. Military vessels or aircraft navigating in or flying over the EEZ of other countries for “peaceful purposes” should not disturb or threaten the sovereignty, territorial integrity or independence of the coastal States. They should not carry out any action that would contravene the principles of international law as embodied in the UN Charter. And they should not use the coastal State's EEZ to carry out military exercises directed against the coastal State. Should they need to carry out “routine exercises,” they should do so as far away as possible from: (1) the 12 nm territorial sea, (2) coastal State installations and structures or artificial islands in the EEZ, (3) areas where there are marine parks, intensive fishing activities, either traditional or commercial, and marine tourism, (4) areas that are heavily navigated by ships and aircraft, either nationally or internationally, or (5) heavily populated areas within the range of its weapons capabilities. If there are high seas beyond the EEZ, the county conducting the military exercises should make every effort to limit the exercises or activities to the high seas. Otherwise, the military exercises could be perceived as threatening or intimidating by the local population, especially if there is a problem between the local government and the central government in that State, such as a local rebellion or separatist movement in the area. Such exercises would not be understood to have a peaceful motive.
6. Military activities, including exercises and intelligence gathering should not be carried out in a confined body of water such as in straits used for international navigation or in enclosed or semi-enclosed seas. It should be remembered that military activities, exercises, and intelligence gathering as well as hydrographic surveys should not be carried out within 12 nm of the territorial sea as stipulated in Article 19 (2) of the 1982 UNCLOS since those activities would violate the principles of “innocent passage” in the territorial sea.
7. No military exercises and intelligence gathering activities in the EEZ of other countries should undertake weapons exercises using live ammunition or be directed against the coastal States. Nor should the exercises be undertaken in areas declared by the coastal States as “restricted” for security, economic, or safety reasons. The duration of restricted areas for security reasons should be limited to the times when the coastal State is itself conducting its own military exercises in the area. Areas restricted for economic reasons may have a longer duration, particularly if it involves the exploitation of the fisheries or mineral resources of the continental shelf. Areas restricted for hydrographic or safety reasons may be relatively permanent in view of the dangers to navigation in that area, such as the “dangerous ground” in the South China Sea where navigational charts, hydrographic and environmental data are limited.
8. Foreign warships or aircraft, including nuclear vessels, intending to carry out military exercises or wargames in the EEZs of other countries should as far as possible notify the coastal State, albeit “quietly” or “behind the scenes,” in order to avoid misunderstanding, and if possible and as necessary, invite observers from the coastal State to witness the exercises or wargames. This would help eliminate a possible perception of hostility.
9. Military activities, exercises and intelligence gathering in the EEZs of other countries should not cause pollution or negatively affect the marine environment and marine living resources, e.g., fish and mammals (cetaceans) which may be adversely affected by active sonar. Negligence in this matter could result in liability for damages.
10. Military vessels and aircraft navigating in the EEZ should not install or deploy military intelligence gathering equipment in the EEZs or continental shelves of other countries. When these are found, the coastal State should have the right to confiscate or destroy this equipment. The 1971 Seabed Treaty Articles I and II already prohibit the emplacement of nuclear weapons or any other weapon of mass destruction (WMD), as well as structures for launching and any other installations or facilities specifically designed for storing, testing or using such weapons “beyond the 12 mile limit of the territorial seas.” Since most of the continental shelf is co-incident with the EEZ, it should also be understood that the emplacement of such weapons in and under the EEZ would also be prohibited.
11. Military vessels and aircraft navigating in the EEZs of other countries should not interfere with or endanger the rights of the coastal State to protect and exploit its own resources and to manage and protect its marine environment, including the monitoring, surveillance and enforcement of its regulations. Military vessels and aircraft should not undertake MSR or hydrographic surveys in the EEZ of other countries, without the consent of the coastal State. It should be understood that a country that has significant knowledge of the oceanographic and hydrographic characteristic of the coastal country could and would have military advantages in utilizing those waters in time of crisis vis a vis other countries, including the coastal State itself.
12. No military exercises or activities in the EEZ of other countries should interfere with the telecommunications of coastal countries, or broadcast any propaganda that may affect the defense or security of the coastal State. Military intelligence activities, including those using electronic signals, should not purposely stimulate coastal States to respond. This would only create confrontation or deplete precious resources such as fuel. Any military exercises in a coastal State's EEZ should be as unobtrusive as possible.
13. Coastal States should not hinder foreign military vessels or aircraft which are simply transiting the EEZ in a continuous and expeditious manner. Such transit should avoid zig-zagging, and deploying or taking on board of persons or goods, or their transfer to another vessel while navigating from one EEZ to another or from one high seas area to another, or in or to and from straits used for international navigation.
14. Military aircraft or vessels navigating the EEZ should not be prevented from helping search and rescue operation activities or other legitimate activities in time of danger or in distress, or from protecting themselves against possible attacks from terrorism. If such activities are undertaken, they should be carried out in close cooperation or coordination with the coastal State, or with the flag State, as necessary, taking into account existing regional arrangements in the area.
These proposed guidelines are controversial. Some would urge a more practical approach, pointing out that for naval commanders such terms as “peaceful purposes,” “peaceful uses,” and goodwill are not practical. For example, for military personnel “not peaceful” means impending conflict. Also, to be practical some wish to exclude intelligence gathering activities in foreign EEZs from the guidelines, at least as an activity and Dialogue topic. They would argue that to ban intelligence gathering activities would be to ban the gathering of information relevant to navigation. Indeed they would say that any deployed military aircraft or naval vessels will inevitably be collecting “intelligence.”
There may also be some confusion and overlap between intelligence gathering and collection of hydrographic data. The placing of buoys, towing of equipment, launching of sonabuoys or installation of other military equipment for the purpose of gathering hydrographic data may or may not be considered “intelligence collection.”
Such activities should be governed by two terms: lawful or unlawful, i.e., the focus should be on trying to define which activities are lawful and which are unlawful. Lawful uses of the sea may be defined using the 1982 UNCLOS text, which includes the freedoms of navigation and overflight, innocent passage through the territorial sea and underwater navigation. But the 1982 UNCLOS is not the only guide to lawful military activities in the EEZ. For example, there are numerous bilateral Agreements on the Prevention of Incidents On and Over the High Seas including for Russia, with the United States (1972); Great Britain (1986); Germany (1988); France, Canada, and Italy (1989); the Netherlands, Norway, and Spain (1990); Greece (1991); and Japan (1994). These Agreements are aimed at eliminating in peacetime, including in foreign EEZs, dangerous naval maneuvers, as well as preventing risky and dubious decisions by vessel commanders and aircraft pilots-in-command, which may result in similar reckless behavior by the other party. Specifically, these Agreements provide for avoiding maneuvers in areas of heavy sea traffic; the maintenance of a safe distance of surveillance ships from the object of investigation so as to avoid “embarrassing or endangering the ships under surveillance”; using accepted international signals when ships maneuver near one another; the prohibition of simulating attacks at, launching objects toward, or illuminating the bridges of the other party's ships; informing vessels when submarines are exercising near them; and requiring aircraft commanders to use the greatest caution and prudence in approaching aircraft and ships of the other party; and prohibiting simulated attacks against aircraft or ships, the performing of aerobatics over ships, or the dropping of hazardous objects near them.
The Agreements also provide for: (1) notice 3–5 days in advance, as a rule, of any projected actions that might represent a danger to navigation or to aircraft in flight; (2) information on incidents to be channeled through naval attacks assigned to the respective capitals; and (3) annual meetings to review the implementation of the Agreement. The EP-3 incident might have been avoided if such an agreement was in place between China and the United States because it could have provided for predictability, transparency of intent, and mutual agreement or procedures to prevent such incidents.
The following might be considered unlawful uses of the EEZ.
• Installation of military equipment without the permission of the coastal State (including nuclear weapons or any other type of WMD, as well as structures, or any other installations or facilities specifically designed for storing, testing or using such weapons).
• Any activity which could interfere with or endanger the economic and scientific rights of the coastal State to protect and exploit its own resources and to manage and protect its marine environment. No difference should be recognized between MSR and hydrographic surveys in the EEZ if the coastal State can prove that military vessels or aircraft were engaged in scientific research without its permission.
However, the term “any activity” may be too broad. Needed is a detailed categorization of those military exercises which are unlawful. Nevertheless, an example of a clearly illegal activity would be the destruction of conventional air targets or depth bombing which undoubtedly have negative impacts on the EEZ environment. Moreover the area chosen for such exercises should be based on conventional rules and exclude areas of heavy sea and air traffic, important straits fisheries, and areas with seabed resources.
Of course some maritime powers will have strong reservations regarding such guidelines. Indeed, maritime powers may not accept this proposal even as a starting point or straw man for further discussion. In their view, the guidelines may seem to effectively convert what is now known as “freedom of navigation” as recognized in the 1982 UNCLOS and enjoyed by military vessels in the EEZ, to a much more restrictive regime, akin to the right of “innocent passage” by warships through the territorial waters of coastal States. In this interpretation the guidelines would constitute a rewriting of a fundamental element of the 1982 UNCLOS, and undermine the essential compromise under which maritime powers accepted the EEZ concept. To these countries, at the very least, the guidelines may appear to be a steep and slippery slope to the same destination. In this view the proposed guidelines may only invite more, rather than less, confrontation and misunderstanding in the EEZs between maritime powers and coastal States.
There are specific concerns with the proposed guidelines which need to be considered and addressed.
• Some would argue that the 1982 UNCLOS is not as unclear as the proposed guidelines imply with respect to military activities in the EEZ, nor is the practice of States as broadly diverse and divergent from the norms in the 1982 UNCLOS as implied. In short they would challenge the underlying rationale for the proposed guidelines.
• This view would also reject the assumption that activities and intelligence gathering are tantamount to non-peaceful uses of the sea and can constitute an affront to the sovereignty of coastal States. It could be argued that such a conclusion can be sustained only if one adopts the most expansive view of the sovereignty of coastal States over all aspects of the EEZ, not the more narrow economic exploitation and environmental management powers the 1982 UNCLOS now recognizes. And of course it can be and is argued that not all military “activities” are inherently non-peaceful.
• There may also be concern that the proposed guidelines appear to accept unilateral legislation adopted by coastal States concerning military and intelligence activities in the EEZ by suggesting only that these be transparent and broadly disseminated. A further concern is that the guidelines suggest that States conducting such activities in the EEZ make every effort to comply, and that if they choose not to do so, they need to explain why and propose ways to resolve the issue. This could mean that such guidelines would be seen by many coastal States as an invitation to progressively limit any effective military presence in EEZs by a State other than the coastal State.
• The guidelines do leave several important questions unanswered. For example, in the event of overlapping claims, whose restrictions would prevail? Also, by subjecting all military activities, in effect, to a coastal State veto, might these proposed guidelines close much of the most strategic and commercially efficient trade routes to the presence of any naval vessels except those of the coastal State?
• Should the guidelines apply to the airspace above the EEZ? Some countries contend there is no authority in the 1982 UNCLOS for extending the EEZ regime to the airspace beyond the territorial sea and that such airspace is “international airspace.”
• There may also be concerns with the reference to other Treaties which may have little relevance to military and intelligence gathering activities. For example, by analogy to the Seabed Treaty which deals with nuclear weapons, the proposed guidelines would prohibit the deployment of all “military intelligence gathering equipment,” without further definition, not only within the EEZ but in the often much broader “continental shelf.” It may be a stretch to place intelligence gathering equipment in the same category as WMD.
• Some States would particularly object to the preclusion of “hydrographic surveys” by naval vessels in the EEZ without the permission of coastal States. Taken together with other provisions of the proposed guidelines dealing with military exercises, war gaming, intelligence collection, “routine minimal exercises,” electronic exercises and the use of live ammunition, these States would be concerned that as a practical matter, the guidelines would be tantamount to establishing 200 nm security zones throughout the world. Paragraph seven of the proposed guidelines does refer approvingly not only to “security zones” but also to exclusionary “economic” and “hydrographic zones” of varying extent and duration. They would argue that the negotiating history of the 1982 UNCLOS shows that the concept of “security zones” was proposed and rejected.
• Maritime powers would strongly reject any restrictions on hydrographic surveys and on modes of navigation in the EEZ, e.g., transference of persons and cargoes or zigzagging as not supported by the 1982 UNCLOS. Indeed the latter could be considered as extending the regime of transit passage in straits to the EEZ.
• There may be broad agreement on the separation of military activities from intelligence gathering. First of all States do not collect intelligence, they collect data and convert it to intelligence. Moreover, military maneuvers and exercises are activities that can be observed and confirmed, while intelligence gathering cannot be confirmed. So even if there are guidelines for intelligence activities there is no way to confirm them. Thus it may be impossible to regulate intelligence gathering unless it threatens another country.
The key objective of the guidelines is to prevent and manage conflict. Thus, the proposed voluntary guidelines area means to prevent incidents or to keep them from escalating. In short the guidelines would be a tool in preventive diplomacy.
Thus maritime powers may wonder if the guidelines would allow naval vessels to do anything useful in EEZs. Certainly, as a practical matter, whether expressly or by implication, residual rights would be a mere shadow, at most, of what is now commonly understood as “freedom of navigation” as explicitly permitted naval vessels by the 1982 UNCLOS Article 58. As the guidelines imply, naval vessels engaged even in even “routine minimal exercises,” might be “invited” to carry out their exercises beyond the 200 nm EEZ. Because there are so many concerns, maritime powers would prefer that rather than focus on guidelines, attention should be focused on conflict management, confidence building and transparency measures.
Geography plays a major role in the position one takes on the issues. For example, there is a difference between countries that have large coastlines with clear maritime boundaries like the United States and Australia, and other countries have smaller coastlines or overlapping EEZs. It is the operation of the navies of the former in the EEZ of the latter that is the concern.
Indeed, developing coastal States would be much more positive regarding guidelines. They would welcome any effort by the international community to promote mutual understanding between the maritime States and themselves, including defining these rights and obligations. They would probably find it useful to properly publicize national maritime laws, regulations and policies regarding such activities so that the international community could have a better understanding of the position and views of each country. At the same time, they would probably welcome the strengthening of bilateral communication and consultation between other concerned countries so as to effectively coordinate their positions on the issue of military uses of the EEZ. The bottom line for these coastal States is that frequent obvious reconnaissance flights are bothersome—“like flies at a dinner table”—and should be curtailed in the interest of better relations.
Thus there is a strong dichotomy of views between the developing coastal countries and the maritime powers. The maritime powers do not want any rules, and the coastal States want some predictability and protection against intimidation. This is what has led to the unfortunate incidents that launched this Dialogue. The challenge then is to find some practical ways of handling these issues. The South China Sea discussions eventually avoided the legal issues and the result was an agreed “Declaration On Conduct.” The alternative is to do nothing and leave it to the evolving practice of States and/or the exercise of raw power. But if more and more countries undertake actions or pass laws that go beyond the 1982 UNCLOS they may become State practice without the input of maritime powers. Also these guidelines are not specifically directed against maritime powers, but at all countries. Neighbors in the region could come to agreements without involving outside powers. This view holds that some agreement is necessary even if it is only to take the next step.
But the larger issue is one of mutual respect. In this view, military activities for national defense should be allowed in all seas except territorial waters. But these activities should avoid damaging resources and hindering the coastal State's use of its EEZ. Moreover, threatening behavior should be avoided, such as activating fire control radar, large scale maneuvers without notice, or firing missiles near land. With mutual respect it was felt that common ground can be found. Increasing transparency, through joint exercises or inviting coastal State persons on board would help. The more of this the better.
The Bali Meeting in June 2002 focused on identifying disagreements and contrasting positions as well as on areas of possible mutual understanding and agreement. The Tokyo Meeting in February 2003 emphasized that as technology advances and activities increase in the EEZs, military and intelligence gathering activities will increase. Further, it was understood that these technological developments had in turn brought about an extension and intensification of control and surveillance of EEZs by coastal States.
The two Meetings identified the following needs:
1. To attribute legitimacy to military and intelligence gathering activities in the EEZ within the legal framework of the 1982 UNCLOS, other pertinent international instruments and customary rules of international law.
2. To promote dialogue, consultations, exchange of information and negotiations at the bilateral, regional and global level in order to advance the process of mutual trust and confidence building.
3. To enhance measures for dispute prevention and encourage recourse to conciliation, arbitration and judicial solution of international disputes; prevention of disputes that may degenerate or escalate into conflict situations deserves special attention.
4. To involve civil society institutions in support of efforts to promote mutual trust among States.
5. To implement and enforce compliance of rules and recommended practices, procedures, and guidelines in the EEZ involving coastal States, flag States and port States.
Guidelines and any other rules without an appropriate system of compliance, implementation and enforcement will be ineffective. They have to be supported by appropriate rules and mechanisms for implementation and enforcement. The guidelines should be devised to serve as initial steps towards mutual trust and confidence-building between maritime States and developing coastal States through agreed practices and procedures. A step by step method of law making might differentiate implementation and enforcement measures applicable to military activities on the one hand and intelligence gathering activities on the other. The measures for implementation and enforcement of any agreed guideline or other rules should constitute a comprehensive system of the best practicable means for negotiation and settlement of disputes. They should take into consideration the relevant provisions of the UN Charter, UNCLOS, the SUA Convention, the MARPOL Convention, the UN Agenda for Peace and relevant global and regional treaties. An inventory of such international instruments bearing on the regime of military and intelligence gathering activities in the EEZ may provide some grounds for the elaboration of guidelines and implementation measures as an important component of a comprehensive system.
However, any means and manner of implementation and enforcement of agreed rules would require the following assurances:
1. that the guidelines will be flexible and evolutionary starting with regulations concerning military exercises which damage the environment or resources and proceeding eventually to regulation of intelligence gathering;
2. the safety and humane treatment of the persons on board vessels and aircraft;
3. the safety and security of the ship or its cargo;
4. the protection of the commercial or legal interests of the flag State or any other interested State;
5. just compensation for any loss or damage that may be sustained if the grounds for measures taken prove to be unfounded;
6. that implementation and enforcement will be matched by safeguards and transparency to avoid unjustified suspicion or adverse consequences in the exercise of enforcement;
7. that the promotion of rules and recommendations for implementation and enforcement will be based on the existing legal framework and implemented step-by-step;
8. that special attention will be given to the need for confidence-building measures in the entire process of standard setting and implementation and enforcement of rules, recommended practices and guidelines;
9. that universal participation is necessary (the 1982 UNCLOS may provide an appropriate general framework); and
10. that the system of implementation and enforcement will be an integration of legal, political and technical considerations.
There will be obvious practical problems in implementing and enforcing any agreed guidelines. Moreover, many States do not even have the capability to determine what military activities are being undertaken in their EEZ, especially those gathering intelligence. And it is sometimes difficult to know if a surface combatant vessel or aircraft is gathering intelligence, let alone a submarine. And if a State is unaware of these activities then it cannot enforce any guidelines. Further, warships have sovereign immunity so even if a coastal State told an offending warship to leave its waters, it could not board it without permission. And if the vessel were spying, what would be the basis of compensation? What is the damage done and how is it to be valued?
If the coastal State can delineate particularly sensitive areas such as those used by breeding whales, and publicize them, then they would be on stronger grounds if damage is inflicted by the activities of foreign warships. Indeed, coastal States should inform navies of the location of all environmentally sensitive areas in their jurisdictional zones. Perhaps the mapping of such sensitive areas could be done jointly and in this way the parties working together could build capacity and confidence as well as the database necessary for implementation of the guidelines.
It is also important for the implementation of any guidelines that coastal States ensure that their own navies are good environmental citizens in their own jurisdictional zones. This includes all branches of the military. For example, air forces use sonobuoys in antisubmarine warfare training some of which include active sonar defense, and scientific bodies conduct experiments involving sonar and acoustic technologies. Defense procurement agencies conduct underwater explosions associated with vessel shock trials. Armies undertake amphibious assaults where there is a risk of ship collisions with marine mammals. And special forces use high-speed rigid inflatable boats and conduct underwater demolition and other activities in offshore areas. Moreover, by being a good “environmental citizen” itself, it would be easier for the coastal State to obtain the support of the international community, the media and their own defense personnel in promoting an environmental agenda for the implementation of the guidelines. In this way, real risks to resources and the marine environment by military activities can be reduced by a high level of awareness, thus encouraging risk reduction measures in foreign EEZs.
But if there is a low level of trust concerning military activities then it is likely that a State will want a treaty, not general voluntary guidelines. But such a treaty is highly unlikely, at least concerning intelligence gathering. On the other hand, enforcement could be at the political level and not by a court. States do not have to act illegally for the Security Council to suggest there may be a threat to the peace and thus take economic measures. Otherwise, there are few available forums in which to pursue enforcement. Only a few states have agreed to compulsory jurisdiction of the International Court of Justice (ICJ), although other UN bodies could seek an advisory opinion from the ICJ. Also, the proposed guidelines could be raised in other forums such as the Western Pacific Naval Symposium; the Council for Security Co-operation in Asia and the Pacific; the International Seapower Symposium; the Pacific Command Operations Law Conference; the ASEAN Regional Forum; and in the ongoing UN Consultative Process on Oceans and the Law of the Sea. States could also take certain issues to the International Liability Court, but that process moves very slowly.
Some ideas might be derived and adapted from the South China Sea Declaration on a Code of Conduct. This includes notifying on a voluntary basis other parties of any impending joint/combined exercises and exchanging on a voluntary basis any relevant information. It is easier to agree and implement guidelines when there are only a few players; it is more difficult in a wider multilateral context. It might be useful to introduce some sort of regular performance reporting regarding acceptance and implementation of the guidelines in each preceding year. This would be a baseline for progress in implementing the guidelines. This is done for example, by OECD member states regarding environmental policies. An OECD team visits member countries every 4 years to look at environmental performance. Parties would need to know that other parties are following the guidelines and such performance reporting would satisfy this need. Moreover any agreed guidelines would need to be reviewed in light of any precedents and technological developments. To do so would require a technical review committee.
The issue could also be raised in the General Assembly, e.g., by introducing a resolution endorsing the guidelines. There would of course be concerns about their status. Would they be considered interpretations of the 1982 UNCLOS? Many States would be concerned about the interpretative role of the United Nations in this matter and may not support UN involvement. Perhaps the Office of the UN Secretary General could be called on for its “good offices” to resolve differences between parties.
A protocol may be a possibility. But that takes years, like the fish stocks agreement or the implementing amendment to Part II of the 1982 UNCLOS. Nevertheless, the appetite for quick fixes may be lower now than before. Obviously obtaining support for a protocol to the 1982 UNCLOS would make any guidelines much “harder” and help build consensus. Once the guidelines were adopted, it would be much easier to monitor them. For example, under the Climate Change Convention there is a multilateral consultative process and the object is to assist countries to fulfill their obligations by way of mutual support and advice. The issue of military activities in EEZs could also be looked at in the context of the general laws of naval warfare. Rather than just a manual—like the San Remo manual—maybe a convention is needed, and the guidelines for military activities could be considered under that process.
In April 2003, the United Kingdom declared an exemption under the 1982 UNCLOS for military activities regarding dispute settlement provisions. More significantly, during testimony before the US Congress regarding ratification of the 1982 UNCLOS, it was argued that the United States alone and not the International Tribunal for the Law of the Sea (ITLOS) would determine what is and is not a military activity. The United States would presumably argue that whether the activity has military significance may itself be a military secret. This is similar to the Connolly amendment exempting the United States from domestic jurisdiction of the ICJ, and reserving the right to determine what is “domestic.” The US approach would seem to indicate that it does not take the ITLOS seriously. Indeed, it would prevent ITLOS from even considering jurisdiction. But it was thought that if a case were brought to ITLOS, the Tribunal would probably hear it. Indeed ITLOS has been reasonably expansive regarding provisional measures.
The bottom line, however, is that implementing and enforcing guidelines is a matter of State consent. State consent is the most powerful enforcement measure and if there is a sufficient number of States with a consistent practice of implementing such guidelines, it can be argued that they have crystallized into customary international law.
The first step for implementation may be to discuss the issue with regional navies and see if any are interested in the proposed guidelines or some other confidence-building measures. The stakeholders need to be engaged—the sooner, the better. The navies will consult with their defense departments, foreign affairs, and in Australia's case the Attorney General's Department. Another route to implementation is to obtain recognition of the guidelines in as many relevant forums as possible, especially those at ministerial level. While the guidelines would be voluntary, they could over time acquire some level of legitimacy and be used by judicial bodies as evidence of new norms or principles regarding the international regime of military activities in EEZs. The guidelines could be viewed as an interpretative document following Vienna Convention Article 31 regarding areas of ambiguity, and could be seen as an area of “subsequent practice.” Opino juris is an important source of customary law because now there is plenty of opportunity for States to declare what they mean. But repeat objectors cannot be bound by such opinions.
In this view, the proposed guidelines could provide a testing ground for new ideas or the adaptation of old ideas to new areas. They could over time be seen as offering relevant consideration in any tribunal. Given that the guidelines would be of wide scope, it may be that certain parts would achieve a greater legitimacy than other sections. However a tribunal would be reluctant to use guidelines that could be seen to be overriding rights guaranteed in the 1982 UNCLOS.
It is thus clear that such guidelines would need to be flexible to deal with
the range of situations that may arise. Perhaps a website should be established
to facilitate access to the guidelines and thus help identify through feedback,
areas that are not specifically or sufficiently addressed therein. Also a
process similar to that of the International Law Association could be followed
in which codes of conduct and draft treaties are produced that can be used in
diplomatic negotiations and eventually change State attitudes. In this process,
the decision-makers could use the draft guidelines on military activities,
modify them, or of course, ignore them. That would be up to the respective
military and political leaders. Any guidelines which included expressed
commitments and which were adopted by governments would be governed by the
general principle of good faith, and accepted principles of international law.
So if a State adopted the guidelines but failed to abide by them in good faith,
then other parties that had accepted such guidelines would be entitled to
withdraw their commitment to them.
The following persons also contributed to the discussion of
this topic: Alvin Adams, Kazumine Akimoto, Sam Bateman, Moritaka Hayashi, Albert
Encomienda and Alexander Skaridov.
Corresponding author. Tel.: +62-21-718-3774; fax: +62-21-7179-1920.
Volume 29, Issue 2 , March 2005, Pages 175-183
Military and Intelligence Gathering Activities in the Exclusive E conomic Zone: Consensus and Disagreement II
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