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Military and intelligence gathering activities in the EEZ: definition of key
School of Law, Waseda University, 1-6-1 Nishiwaseda, Shinjuku-ku, Tokyo, Japan
Available online 18 November 2004.
In the practice of States and in discussions relating to military and intelligence gathering activities in exclusive economic zones, there is a lack of common understanding with regard to some of the key terms in the 1982 UN Convention on the Law of the Sea. This chapter reviews the origin and use and interpretation of such terms as “peaceful uses,” “peaceful purpose,” “freedom of navigation and overflight,” “residual rights,” “other internationally lawful uses of the sea,” “installations and structures,” “due regard,” “normal mode,” hostile intent, and abuse of rights with a view to clarifying their agreed meaning and identifying any areas of disagreement.
Keywords: Peaceful uses/purposes; Military uses; Freedom of
navigation and overflight; Due regard
The meetings in Bali, in June 2002, and Tokyo, in February 2003, revealed that there is a lack of common interpretation or understanding with regard to some of the key terms in the 1982 UN Convention on the Law of the Sea (1982 UNCLOS) and in related discussions. It is crucial to advancing discussions that participants in this Dialogue share a clear understanding of the meaning of such terms, or in cases where no established meaning exists, at least have a better idea of the areas of agreement and disagreement.
The key terms that need such clarification include: “peaceful uses/purposes,” threat of force, “freedom of navigation and overflight,” residual rights, “other internationally lawful uses of the sea…”, installations and structures, due regard, navigation and overflight in the “normal mode”, hostile intent, and abuse of rights. Unless otherwise indicated, these terms are discussed in the context of the exclusive economic zone (EEZ) and in particular its use for military and intelligence gathering activities. This paper reviews the drafting history of the 1982 UNCLOS, State practice, scholarly opinions, as well as the discussions at the last two meetings of this Dialogue, with a view to clarifying the meaning of these terms or where no consensus exists, ascertaining the extent of agreement and disagreement. In the conclusions, some suggestions are offered to narrow the differences in views and positions.
The term “peaceful uses” or “peaceful purposes” is used in the 1982 UNCLOS in the Preamble, and Articles 88, 141, 143(1), 147(2)(d), 155(2), 240(a), 246(3), and 301. Among these, only the Preamble and Article 301 (in the title) use the term “peaceful uses”, rather than “peaceful purposes”. There appears to be no substantial difference in the purpose of these two terms.1 Apart from the preambular paragraph, which expresses the desirability of establishing a legal order of the seas and oceans that will promote their peaceful uses, these articles may be divided into the following four groups:
(1) Article 88, providing that the high seas and (through Article 58(2)) the EEZ shall be reserved for peaceful purposes;
(2) Articles 141, 143(1), 147(2)(d) and 155(2) relating to the reservation of the Area beyond the limits of national jurisdiction for use exclusively for peaceful purposes; Articles 143(1) and 147(2)(d) specifically require that marine scientific research (MSR) and “installations” in the Area be exclusively for peaceful purposes;
(3) Article 240(a) laying down the principle that MSR shall be conducted exclusively for peaceful purposes, and Article 246(3) relating to the coastal State's consent to be granted for MSR in the EEZ or on the continental shelf that would be conducted by other States exclusively for peaceful purposes; and
(4) Article 301, applicable generally to all aspects of the rights and duties of States Parties, requiring them to refrain from any threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the principles of international law embodied in the UN Charter.
No definition is given in the Convention regarding “peaceful uses/purposes”. The term is found in several multilateral treaties concluded before the Third UN Conference on the Law of the Sea (UNCLOS III). Some use the phrase to mean complete demilitarization, whereas others would prohibit only certain types of military activities. Upon examination of such treaties, including the Antarctic Treaty, the Outer Space Treaty, the Moon Treaty and the Seabed Arms Control Treaty, Boczek concluded that no agreed understanding of the notion of peaceful purposes had emerged prior to UNCLOS III, and that the term “peaceful purposes” must be construed within the context and circumstances of each specific instrument in which it is employed.2
The origin of Article 88 can be traced to the proposal submitted by Ecuador, Panama and Peru at the 1973 session of the Sea-Bed Committee, which read:
The international seas shall be open to all States, …and their use shall be reserved for peaceful purposes.3
At the third (1975) session of UNCLOS III, basically the same text appeared in the Single Negotiating Text, with “international seas” having been replaced by “high seas”. In the debate on the question of peaceful uses of ocean space, held at its fourth session in 1976, opinions were divided into three groups. Many States, including several developing countries, interpreted the clause as prohibiting all military activities, while other States considered it as prohibiting military activities for aggressive purposes but not other activities. A third group argued that the test of whether an activity was peaceful was whether it was consistent with the UN Charter and other obligations under international law. The US, representing the third group, stressed that the conduct of military activities for peaceful purposes was in full accord with the Charter, and that any specific limitation on military activities would require the negotiations of a detailed arms control agreement.4 The Revised Single Negotiating Text, issued at the end of the fourth session, contained the text which later became Article 88.
With regard to Article 301, its original version was proposed by a group of 10 developing countries in 1980 as an additional sentence to Article 88. Not having attracted much support, the proposal was subsequently reintroduced as a separate article applicable to all zones of ocean space. The text read:
All States shall refrain from any threat or use of force against the sovereignty, territorial integrity or political independence of any State, or in any other manner inconsistent with the purpose of the United Nations and the principles of international law.5
Subsequently, the phrase “or in any other manner….” was replaced by “or in any other manner inconsistent with the principles of international law embodied in the Charter of the United Nations.” The new language, adopted as the final text, is a broader expression covering all the principles of international law that are embodied in the Charter, and not merely the purpose of the United Nations. In particular, the inherent right of self-defense confirmed in Article 51 is unimpaired. It has thus been pointed out that military activities which are consistent with the principles of international law embodied in the Charter are not prohibited by the Convention.6 This view was also supported by a German participant in the Conference, who concluded that all naval activities in preparation for self-defense are compatible with the Convention and must be considered “peaceful use”.7
The controversy over the peaceful uses/purposes clause has been mainly focused on whether it entails prohibition or limitation of all military activities, or if it does not prohibit all military activities, then the focus of the controversy shifts to which military activities are prohibited. It has often been pointed out that a clear intention of the US and the USSR at UNCLOS III was to avoid specific discussion of the limitation of military activities.8 They considered that the peaceful purposes clauses were not intended to impose any restrictions on military activities at sea, but simply represented the application to the law of the sea of the UN Charter's ban on the threat or use of force.9 Oxman, who was personally involved in the negotiations, has stressed that one of the primary motivations of the major maritime powers in negotiating a new Convention was to protect the broadest possible freedom to conduct military activities at sea, and therefore it was unlikely that they would have agreed to significant legal restraints on those activities.10
After the adoption of the Convention, the US officially confirmed that the Convention does not prohibit military activities consistent with international law. Most recently, President Clinton, in his message accompanying the transmittal of the Convention to the Senate, stated that the Convention “preserves the right of the US military to use the world's oceans to meet national security requirements”, and the accompanying Commentary states:
None of these provisions [Articles 88 and 301, as well as 141, 143, 147, 155, 240, 242 and 246] create new rights or obligations, imposes restraints upon military operations, or impairs the inherent right of self-defense… More generally, military activities which are consistent with the principles of international law are not prohibited by these, or any other, provisions of the Convention.11
The United Nations itself has also recognized, and indeed requested, deployment of military vessels. For example, in Resolution 665 of 25 August 1990 relating to economic sanctions against Iraq, the Security Council called upon all States to “halt all inward and outward maritime shipping in order to inspect and verify their cargoes and destinations and to ensure strict implementation of [the previously adopted resolution]”. The Council adopted a similar resolution also with regard to Yugoslavia in 1992. In both cases, the use of military vessels was obviously expected, and warships were actually engaged in search operations.
Commentators generally agree that, based on various provisions of the Convention relating to, e.g., the freedom of military vessels to navigate (Article 87), the privileged status granted to military vessels (e.g., Articles 32, 95, 236); the prohibition of certain military activities within the territorial sea (but not outside the territorial sea) (Article 19(2)); and the optional exclusion from compulsory judicial settlement of disputes concerning military activities (Article 298), it is logical and realistic to interpret the peaceful uses/purposes clauses as prohibiting only those activities which are not consistent with the UN Charter.12
It may be concluded accordingly that the peaceful purposes/uses clauses in Articles 88 and 301 do not prohibit all military activities on the high seas and in EEZs, but only those that threaten or use force in a manner inconsistent with the UN Charter. This is almost self-evident from the text of Article 301. As for Article 88, if it has any other meaning, as Oxman and some others suggest, it expresses the aspirations of the negotiators and a policy goal for States in the conduct of future arms control negotiations in the appropriate fora and context.13
The conclusion that the peaceful uses/purposes clauses prohibit only those activities which threaten or use force in a manner inconsistent with the UN Charter may also be drawn with respect to the peaceful purposes clause in the context of MSR. Nothing in the Convention excludes the application of Articles 88 and 301 in the context of MSR. It has been observed that the general principle embodied in Article 240 can best be understood as a restatement in the MSR context of a principle which would in any event be applicable by virtue of other provisions of the Convention.14
The question thus hinges on what constitutes a threat or use of force inconsistent with the Charter. It is generally understood that the Charter prohibition includes not only the direct use of force across the border, but also the use of indirect armed force.15 In addition to indirect armed force, the 1970 Friendly Relations Declaration of the UN General Assembly, which is regarded as giving an authoritative interpretation of the Charter principles, adds acts of reprisal involving the use of force, and forcible action which deprives peoples of their right to self-determination, freedom and independence.
However, the Charter and subsequent legal developments in the United Nations have not taken into account highly advanced technologies, in particular the latest electronic warfare (EW) capabilities which are becoming increasingly more intensive and intrusive. A crucial question is whether some of the EW-related activities conducted in or above the EEZ should be considered to be inconsistent with the Charter and thus the peaceful purposes clauses of the 1982 UNCLOS. Particularly relevant in this context are active signals intelligence (SIGINT) activities conducted from aircraft and ships, some of which are deliberately provocative, and intended to generate programmed responses. Other SIGINT activities intercept naval radar and emitters, thus enabling the location, identification, and tracking of surface ships as well as the planning and preparation of electronic or missile attacks against them.16 These activities appear to involve far greater interference with the communication and defense systems of the targeted coastal State than any traditional passive intelligence gathering activities conducted from outside national territory.
These activities involve neither use of force, nor threat thereof, as will be clarified in the following section. They are, however, qualitatively an entirely new activity, and accordingly call for new efforts aimed at reaching a common understanding. The recent incident involving a SIGINT operation, the US EP-3 flight over the Chinese EEZ, illustrates the urgency of the matter. However, it appears that the Chinese side did not raise the issue of compatibility of the flight with the Charter principles. Rather the focus was on Article 58 of the 1982 UNCLOS and the possible abuse of the freedom of overflight above the EEZ. A better place to discuss this incident, therefore, would be under the terms “other internationally lawful activities” and “due regard”.
The term ‘threat of force’ is a well-established phrase in the UN Charter. It should therefore be used only in that context in order to avoid any misunderstanding. The Charter's Article 2(4) deals with “threat of force” together with “use of force”. It is clear that any such “threat” must be closely tied to what the target State perceives as the readiness of another State to use force. Such threat usually has a coercive intent to compel the target State to take or not to take certain specific action. Indeed, only a threat directed towards a specific reaction on the part of such a State is unlawful under the terms of Article 2(4) of the Charter.17 Moreover, the Charter does not prohibit just any threat of force. It must be a “threat [or use] of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the principles of international law” embodied in the Charter. A typical example is the concentration of naval forces in the EEZ of another State accompanied by certain political demands against that State. There may also be a situation where a coastal State considers foreign military maneuvers in its EEZ as a threat of force, with tacit demands, if they are conducted in an atmosphere of high political tension.18
It has been pointed out that State practice reveals a relatively high degree of tolerance towards mere threats of force.19 The reasons for this seem to be the fact that some of the most obvious threats of force are legitimized by the right of self-defense under the Charter, as well as the difficulty of distinguishing clearly between offensive and defensive preparations.20
It has been reported that China considers “military hydrographic survey” activities in the EEZ without the coastal State's permission as, “in a military sense, a type of battlefield preparation, and thus a threat of force” against that State.21 It is doubtful that China used the term “threat of force” in the strictly legal sense. If so, such interpretation of “threat of force” is not supported by the meaning of the term as used in the Charter, and hence Article 301. This question will be discussed under the term “other internationally lawful uses”, in connection with the terms “hydrographic survey” and “military survey”.
There appears to be broad consensus on the recognition of freedom of navigation and overflight in and above EEZs, and at the same time on the non-absolute nature of such freedom. In fact, no other interpretation seems to be justified in the light of the plain text of Article 58(1) of the 1982 UNCLOS, which provides:
In the [EEZ], all States, … enjoy, subject to the relevant provisions of this Convention, the freedoms referred to in Article 87 of navigation and overflight …(emphasis added)
In 1985, Brazil attempted to change this rule with respect to overflight by requesting the International Civil Aviation Organization (ICAO) to reconsider the provisions of the Chicago Convention on International Civil Aviation so as to impose on flights over the EEZ the same conditions as those applicable to land territory and territorial waters. The ICAO rejected the proposal as clearly incompatible with the 1982 UNCLOS and other norms of international law.22
The central issue would thus be the conditions imposed on the exercise of such freedom. More specifically: what do “the relevant provisions of this Convention” referred to in Article 58(1) say? From the discussions in the last two meetings, several ‘agreed areas’ have emerged.23 According to these rules, the exercise in EEZs of freedom of navigation and overflight shall not:
(1) interfere with or endanger the sovereign rights of the coastal State for the conservation and management of the natural resources, as well as its jurisdiction with regard to the protection and preservation of the marine environment (see Articles 56(1)(a)), 62 and 77, and Part XII);
(2) involve MSR without the consent of the coastal State, or in violation of the other provisions of the Convention (see Articles 56(1)(b) and 246(2), and Part XIII);
(3) interfere with the rights of the coastal States with regard to the establishment and use of artificial islands, installations and structures (see Articles 56(1)(b), 60 and 80); or
(4) involve activities that constitute threat or use of force in a manner inconsistent with the UN Charter (see Article 301).
The above rules contain most of the main duties of those States exercising freedom of navigation and overflight. However, such States also have a general duty to have “due regard” to the rights and duties of the coastal State and to comply with the laws and regulations adopted by the coastal State in accordance with the Convention and other international law rules (Article 58(3)) (see Section 8 below). The areas of disagreement with regard to navigation and overflight appear to relate to certain uses, particularly of a military nature, of the EEZ that are incidental to navigation and overflight. Some difficulty also stems from disagreement regarding exactly what kind of activities constitute “navigation and overflight” (see Section 6).
Before discussing further the rights and duties of coastal States and other States in the EEZ, the concept of ‘residual rights,’ a terminology not used in the Convention, should be clarified. ‘Residual rights’ refers to the rights or jurisdiction with respect to a matter in the EEZ in cases where the Convention does not specifically attribute them to either the coastal State or other States. Although Articles 56 and 58 intend to allocate such rights and jurisdiction to one or the other, there was a concern among UNCLOS III negotiators that because of the sui generis character of the newly created EEZ, belonging neither to the high seas nor the territorial sea, disputes might arise when both the coastal State and another State invoke concurrent incompatible rights. It was felt therefore that a general criterion should be devised to settle such disputes.24 Article 59 is the outcome of the consensus reached at an early stage of the Conference.
Article 59 provides for the legal mechanism to be used in solving disputes over the attribution of rights or jurisdiction with regard to the EEZ either to the coastal State or other States. It directs the parties to resolve the dispute “on the basis of equity and in the light of all the relevant circumstances, taking into account the respective importance of the interests involved to the parties as well as to the international community as a whole”.
Parties to such a dispute must settle it by peaceful means of their choice. Failing such settlement, any party may submit the dispute to the compulsory procedures under Part XV, Section 2, of the Convention, subject to the exceptions allowed under Article 298. In particular, any State may declare at any time that it does not accept compulsory third party settlement procedures with respect to “disputes concerning military activities, including military activities by government vessels and aircraft engaged in non-commercial service” (paragraph 1(b)). Thus, the Convention leaves open the possibility that disputes regarding residual rights over military activities in the EEZ may not be clearly resolved until the practice of States converges or a new agreement emerges.
The term “other internationally lawful uses of the sea” here refers to the phrase starting with these words in Article 58(1), which reads:
In the [EEZ], all States … enjoy, subject to the relevant provisions of this Convention, the freedoms referred to in Article 87 of navigation and overflight and of the laying of submarine cables and pipelines, and the other international lawful uses of the sea related to these freedoms, such as those associated with the operation of ships, aircraft and submarine cables and pipelines, and compatible with the other provisions of this Convention.
The drafting history of this term with several accompanying key words is fairly clear. The original version of this provision appeared in the 1975 text produced by the Evensen Group; which read:
All States … shall, … enjoy in the EEZ the freedoms of navigation and overflight and of the laying of submarine cables and pipelines and other internationally lawful uses of the sea related to navigation and communication …
This text was incorporated without substantive change in the Informal Single Negotiating Text and the Revised Negotiating Text.25 Some significant changes were made to this text by another informal negotiating group, the Castañeda Group, on the basis of the United States’ proposal. Firstly, a cross-reference to Article 87 (on high seas freedoms) was added to the word “freedoms”. Secondly, “navigation and communication” was replaced by “these freedoms”, meaning freedoms of navigation and overflight. And thirdly, the phrase “other internationally lawful uses of the sea related to [these freedoms]” was considerably clarified and possibly expanded by adding “such as those associated with the operation of ships, aircraft and submarine cables and pipelines, and compatible with the other provisions of this Convention.”26 This revised formula was subsequently adopted as part of the final text of Article 58(1). In a comprehensive study of the subject, Galdorisi and Kaufman state that the new language, which would broaden the scope of the provision as originally appeared, “was intended to preserve the maritime nations’ military use rights in the [EEZ]”.27 They also stress that the vast weight of authority confirms that the freedom referred to in Article 87 includes high seas freedom of navigation and overflight, and internationally lawful uses of the sea related to such high seas freedoms and historically included military operations.28
Turning now to the practice of States and scholarly opinions regarding the contents of “other internationally lawful uses of the sea” related to the freedoms of navigation and overflight and of the laying of submarine cables and pipelines, the following five categories of uses or activities deserve examination: (a) military maneuvers; (b) use of devices, installations and structures that are attached to the seabed; (c) military intelligence gathering activities; (d) use of expendable marine instruments; and (e) survey activities. Use of installations and structures shall also be dealt with later in this paper in the context of Article 60 (see Section 7 below).
Traditionally the freedom of the high seas included the use of the high seas for military maneuvers or exercises, including the use of weapons. This freedom has been incorporated in the 1982 UNCLOS, and it has been generally believed, particularly by maritime States, that this applies also to the EEZ. However, upon signing or ratifying the Convention, several States, including Bangladesh, Brazil, Cape Verde, Pakistan, Malaysia and Uruguay, declared that such kind of military activities are not permitted in the EEZ without the consent of the coastal State.29 Sharply opposing declarations have been filed by Germany, Italy, the Netherlands and the United Kingdom.30 The US has also taken the position that “military activities, such as … launching and landing of aircraft, … exercises, operations … [in the EEZ] are recognized historic high seas uses that are preserved by Article 58.”31 The US Navy takes the view that the high seas freedoms include “task force maneuvering, flight operations, military exercises, surveillance, intelligence gathering activities and ordnance testing and firing,” and that “the existence of the EEZ in an area of naval operations need not, of itself, be of operational concern to the naval commander.”32
Several commentators stress that Article 58 permits military maneuvers generally within EEZs without the consent of the coastal State.33 Others, however, are of the view that the Convention has not given any clear rule on this issue. Thus, Vukas says that the problem of the legality of military maneuvers and ballistic exercises which temporarily prevent other States from using a vast area of the high seas remains unresolved.34 While a simple naval maneuver can be considered to be associated with the freedom of navigation, Scovazzi argues that it would be more difficult to sustain that an extended test of weapons, such as launching torpedoes and firing artillery or the covert laying of arms within an EEZ, are to be included among the uses associated with the operation of ships, aircraft and submarine cables.35 Churchill and Lowe point out that it is not clear whether such activities as naval exercises involving weapons testing are included within the freedom of navigation and overflight and other internationally lawful uses of the sea related to them.36 Lowe has also contended that there are plausible arguments for the reference of a dispute over the legality of naval maneuvers and exercise to Article 59 on residual rights.37
It must be concluded from the foregoing that State practice and commentators are divided on whether military maneuvers, and particularly those involving use of weapons, in the EEZ of a foreign State without its consent are internationally lawful uses of the sea. Commentators tend to argue that naval exercises of reasonable scale without the use of weapons are permitted.
Maritime powers have deployed various kinds of devices, installations and structures for military purposes in the sea including in the EEZ of other countries. Examples of these include sonar monitoring or surveillance systems like acoustic array systems laid on the continental shelf, and navigation aids for submarines and warships. Two approaches have been advanced for justifying the use of such objects for military purposes. One is to interpret them as “other internationally lawful uses of the sea”, and the other approach is to consider them as “installations and structures” that would require no consent of the coastal State under Article 60. The focus here is the former approach; the latter approach will be discussed under the term “installations and structures”.
Some authors have argued that certain types of devices, installations and structures for military purposes could fall under Article 58(1) since they can be considered as “use of the sea related to [the freedom of navigation … and of laying of submarine cables], such as those associated with the operation of ships … and submarine cables …, and compatible with the other provisions of this Convention.” For example, according to Rauch, the laying of acoustic array systems or hydrophone arrays on the continental shelf, which are networks of large fixed acoustic detection devices linked to shore-based processing units, may be subsumed under the freedom to lay submarine cables since their key functions of transmitting electronic impulses and information to terminals or other receivers have common elements.38 Churchill and Lowe,39 Treves40 and Boczek41 also consider that certain types of sensor arrays could be related to the freedom to lay submarine cables. With regard to seabed devices for navigational aids for submarines and other warships, Treves and Boczek argue that they could be considered as being “associated with the operation of ships”.42 The deployment of armed mines43 and other weapon systems would not be justified under Articles 88 and 301, except for the purpose of legitimate self-defense, nor under Article 58 since they are likely to interfere seriously with the exercise of freedom of navigation and other rights in the EEZ.44
The use of devices, installations and structures for military purposes appear to be little publicized for obvious reasons, apart from the well-known fact that the US and the former USSR deployed the Sonar Surveillance System (SOSUS) and the Soviet Ocean Surveillance System (SOSS) on the continental shelf off the US, and in the North Sea and the Mediterranean.45 There is thus a paucity of relevant practice of States and a hasty conclusion may not be warranted. However, it may be tentatively suggested that the use of devices, installations and structures for military purposes, except weapon systems, would be permitted in the EEZ of another State, subject to the “due regard” requirement (see Section 8).
Traditionally, intelligence gathering activities have been regarded as part of the exercise of freedom of the high seas and therefore, through Article 58(1), lawful in the EEZ as well. All major maritime powers have been routinely conducting such activities without protest from the coastal State concerned, unless they became excessively provocative. The US Navy expressly takes the view that such activities are part of high seas freedoms.46
However, this position appears to be facing increasingly serious challenges as new, highly intrusive intelligence gathering systems are being developed and used by several military powers. Of particular concern are the increasing EW capabilities and the widespread moves to develop information warfare (IW) capabilities. Airborne SIGINT missions are often provocative as visible efforts to penetrate the electronic secrets of the targeted country. Indeed, important aspects of regional SIGINT and EW capabilities may invite attack, and thus encourage pre-emption.47
Can these new activities be categorized as “other internationally lawful uses of the sea” related to the freedom of navigation and overflight? It appears that provisions of the 1982 UNCLOS are not adequate to regulate the use of these new EW and IW technologies by military vessels and aircraft. Thus, it would be highly desirable that the question be studied in depth with a view to working out a common understanding or agreement before another serious incident like that involving the EP-3 flight of April 2001.
One type of military use of the seas that has been relatively overlooked is the deployment and use of expendable marine instruments. These instruments are deployed for collecting data about the water column for use in naval operations, including anti-submarine warfare, MSR, and by the commercial ocean industry, and are also essential to safe navigation. Warships and research vessels routinely deploy such instruments extensively while navigating almost any waters. One author estimates that since their introduction 30 years earlier, millions of such instruments had been deployed worldwide prior to mid-1990s.48 Despite their extensive use, coastal States have apparently ignored their deployment,49 probably because such instruments are not particularly threatening to the coastal environment.
The possible legal regime applicable to expendable marine instruments in EEZs would depend upon whether they are deployed and used for MSR purposes, or for survey or other navigational purposes. In the case of the former, they would generally be subject to the consent regime in Part XIII of the 1982 UNCLOS.
With regard to those instruments which are used for survey activities (see Section 6.5 below), or other navigational purposes, it is likely that they fall generally within “other internationally lawful uses of the sea” related to the freedom of navigation associated with the operation of ships under Article 58(1). As Kraska points out, many such instruments are used to help predict dangerous weather patterns and iceberg thickness and drift, to analyze wind patterns, and to measure other parameters of sea dynamics, and these are clearly tasks “associated with the operation of ships”.50
“Survey” activities are clearly distinguished in the 1982 UNCLOS from MSR activities. For example, Article 19(2) refers to “research or survey activities”; Articles 21(1) and 40 mention “marine scientific research and hydrographic surveys (survey ships)”. Part XIII is devoted solely to MSR, with no reference to surveys. This could indicate that survey activities do not fall under the regime of Part XIII.51 Nowhere, however, is there any specific provision regulating survey activities.
Generally two types of surveys are distinguished:
“Hydrographic surveys”, which are generally “to obtain information for the making of navigational charts and the safety of navigation, and includes determination of one or more of several classes of data in coastal or relatively shallow areas—depth of water, configuration and nature of the natural bottom, directions and force of currents, heights and times of tides and water stages, and hazards of navigation—for the production of nautical charts and similar products to support safety of navigation,” and ‘Military surveys,’ which “refer to activities undertaken in the ocean and coastal waters involving marine data collection (whether or not classified) for military purposes, and can include oceanographic, marine geological, geophysical, chemical, biological and acoustic data. Equipment used can include fathometers, swath bottom mappers, side scan sonars, bottom grab and coring systems, current meters and profilers.”52
The US takes the position that the conduct of surveys in the EEZ of a foreign coastal State is an exercise of the freedom of navigation and other internationally lawful uses of the sea under Article 58(1), and therefore not subject to coastal State regulation. The US has responded along these lines to other States which have questioned such survey activities in their EEZs.53 The US Department of the Navy also states that coastal nations cannot regulate hydrographic surveys or military surveys conducted beyond their territorial sea, nor can they require notification of such activities.54
Some of the scientific information and data obtained by military surveys may obviously be of great value for commercial exploitation. For example, the detailed naval side-scan sonar charts have, when released, proved invaluable to geologists searching for volcanically active rift zones potentially rich in metallic sulfides. Should such information relate to the seabed of a foreign coastal State's EEZ, its discriminatory release to the private sector, particularly without the knowledge of the coastal State itself, could be considered inconsistent with Article 300 regarding good faith and abuse of rights.
A most serious challenge to the exemption of hydrographic and military surveys came from China, which reportedly enacted in December 2002 a law, elaborating on its 1998 law on the EEZ, stating that any “survey or mapping activities” cannot involve State secrets or hurt the State, and that all such surveys must have prior permission.55 Earlier, in September 2002, China reportedly lodged protest with the US Government charging that the USNS Bowditch had conducted monitoring and reconnaissance activities without its approval in its EEZ. The vessel, according to press reports, was engaged in hydrographic surveys some 60 miles off the Chinese coast, and was buzzed by Chinese patrol planes and received threats to leave the area.56 China appears to believe that “military hydrographic survey” activities in the EEZ are, in a military sense, a type of battlefield preparation and thus a threat of force against the coastal State, thus violating the principle of peaceful use of the sea.57 Further clarification is needed as to the exact contents of the law and the intention of related pronouncements before making any judgement. But if the law requires all hydrographic surveys in its EEZ to obtain prior permission, it is clearly contrary to the strongly held position of the US, and could become a source of serious tension in the future. It is desirable, therefore, that the concerned States start a dialogue with a view to clarifying their positions and agreeing on possible conflict avoidance mechanisms.
Article 60 provides that in the EEZ, the coastal State has the exclusive right to construct, to authorize and to regulate the construction, operation and use of
(a) artificial islands;
(b) installations and structures for the purposes provided for in Article 56 and other economic purposes; and
(c) installations and structures which may interfere with the exercise of the rights of the coastal State in the zone.
At an early stage of UNCLOS III, a number of delegations, particularly those from Africa, made proposals calling for the coastal State's exclusive right to authorize the construction of all artificial islands, installations and structures for any purpose, and particularly military installations and devices, in the EEZ. These proposals were not adopted, and the Evensen Group text, which is close to the final text of Article 60, emerged in 1975. A further effort by Brazil, Peru and Uruguay to reverse the trend failed.58
Upon signature and/or ratification of the 1982 UNCLOS, Brazil, Cape Verde and Uruguay made declarations recording their understanding that the coastal State has the exclusive right to authorize and regulate the construction and use of all types of installations and structures for any purpose.59 Several States, including Guyana, Honduras, India, Indonesia, Maldives, Mauritius, Myanmar, Pakistan, Philippines, Seychelles, Sri Lanka, Vanuatu and Yemen, have enacted domestic legislation containing provisions with similar effect.60 Against such declarations, Germany, Italy and the Netherlands declared that the right of the coastal State is only with respect to those installations and structures which are included in Article 60.61 Thus in the views of these and other maritime States, the coastal State has exclusive jurisdiction and the right to construct and to authorize and regulate the construction, operation and the use of installations and structures only if they are for resource, MSR or environmental purposes or if they may interfere with the exercise of the right of the coastal State in the EEZ. Hence, according to them, the maritime user States have the right to place military installations and structures in the coastal State's EEZ as long as they do not interfere with the exercise of the coastal State's rights.
Addressing the question of sonar surveillance systems, some commentators support the position of these maritime States on other grounds. For example, Boczek argues that such systems are “devices”62 and not “installations”, which is a narrower concept and therefore not among those objects which the coastal State has the exclusive right to construct or operate in its EEZ.63 Similarly, de Muralt points out that the 1958 Geneva Convention on the Continental Shelf provided for “installations and other devices”, whereas the 1982 UNCLOS uses the less comprehensive term “structures”, and hence one could interpret that devices which are not “structures”, such as listening apparati, would fall outside the limitations contained in Article 60.64
It seems difficult to draw firm conclusions in support of these interpretations of “devices”, “installations” and “structures”, since none of them are defined in the Convention, and moreover the term “device” is used without consistency throughout the Convention.65 As long as a number of States maintain their strong position, no general agreement is possible on the definitive interpretation of Article 60 with regard to devices, installations and structures attached to the seabed in the EEZ.
Article 58(3) provides that in exercising their rights and performing their duties in the EEZ, “States shall have due regard to the rights and duties of the coastal State and shall comply with the laws and regulations adopted by the coastal State” in accordance with the Convention provisions and other rules of international law in so far as they are not incompatible with Part V (on the EEZ). In turn, under Article 56(2), the coastal State is required to have due regard to the rights and duties of other States in exercising its rights and performing its duties in the EEZ. The Convention thus tries to maintain the balance of interests and rights of the coastal State and other States in the EEZ. The following discussion will be focused on Article 58(3), since this paper deals mainly with the use of the EEZ of a coastal State by other States.
The Convention gives no clear guidance as to the meaning of “due regard”. However, the drafting history of Article 58 may shed some light on the intention of the negotiators. Some early proposals by developing countries regarding this point in the Sea-Bed Committee would have first established the rights and freedoms of other States in the EEZ and then added that such rights could be restricted by the coastal State in exercising its rights within the zone. A subsequent Chinese proposal contained the duty of other States to “observe the relevant laws and regulations of the coastal State.” In the second session of UNCLOS III (1974), six East European States tabled a proposal, which read inter alia that coastal States should exercise their rights without prejudice to the rights of all States, and that all other States “shall not hinder the exercise of the rights or the fulfillment of the obligations of the coastal State” in the EEZ.66
At the third (1975) session, the Evensen Group produced the text which contained the term “due regard to the rights and duties of the coastal State”. The phrase “and shall comply with the laws and regulations enacted by the coastal State…” was then added in the Informal Single Negotiating Text. An earlier proposal by the Group of 77 to add the reference to “due regard to the security interests of the coastal State” was not included in the Negotiating Text.
In introducing the same text, as incorporated in the Revised Single Negotiating Text, the Chairman of the Second Committee stated:
In simple terms, the rights as to resources belong to the coastal State and, in so far as such rights are not infringed, all other States enjoy the freedoms of navigation and communication.67
This is however too “simple” a statement, for the rights of the coastal State are much more than those related to resources. It shows, however, that the “due regard” clause was generally understood as non-infringement of the coastal State's rights.
As for State practice on this issue, the US has made the following clarification regarding the meaning of “due regard” and “reasonable regard”,68 between which it finds no substantive difference, within the context of a similar provision with respect to the exercise of freedom of the high seas under Article 87:
The “reasonable regard/due regard” standard requires any using State to be cognizant of the interests of others in using a high seas area, to balance those interests with its own, and to refrain from activities that unreasonably interfere with the exercise of other States’ high seas freedoms in light of that balancing of interests.69
Although this statement relates to Article 87, a similar explanation may be made with regard to Article 58(3). The essential element of the “due regard” standard then, according to the US, would be the duty to refrain from activities that unreasonably interfere with the exercise of the rights of the coastal State.
China appears to interpret Article 58 to require foreign users of the EEZ to refrain from any activities “which endanger the sovereignty, security and national interests of the coastal countries.” This is part of the Chinese position reportedly presented in connection with the incident of 1 April 2001, in which the US EP-3 plane collided with a Chinese fighter above the Chinese EEZ.70 Thus, according to China, the “due regard” rule of Article 58 involves not only the rights of the coastal State under Article 56 but also its interests relating particularly to security.
Commentators have given various examples of what would constitute cases where foreign States fail to have due regard to the rights and duties of the coastal State in its EEZ. These are:
(1) A weapons exercise that does significant damage to the valuable natural resource being exploited by the coastal State,71
(2) a military activity that constitutes interference with the peaceful use of the sea, for example, by denying access to traditional fishing grounds or creating hazards to commercial fishing,72
(3) military activities that potentially interfere with or harm the interests of the coastal State,73 and
(4) military exercises with the use of weapons or explosives.74
The conclusion may be inescapable that there is no agreed specific criterion for States to follow in determining whether their activities have fulfilled the “due regard” requirement. The only broad criterion that may be applicable to all cases would be whether the activity concerned interferes with the rights and interests of the coastal State. No agreement exists as to exactly what constitute such “rights and interests”, except perhaps activities which would cause significant damage to the resources being exploited by the coastal State or deny access to the area of such exploitation. Nor is there agreement as to whether the interference in question must be unreasonable or not, and whether it could be or must be actual.
The 1982 UNCLOS provides that ships and aircraft exercising the right of transit passage through straits shall refrain from “any activities other than those incident to their normal modes” of continuous and expeditious transit (Article 39(1)(c)). Ships and aircraft also have rights of navigation and overflight “in the normal mode” through or over archipelagic sea lanes and air routes (Article 53(3)). Although this question is not one concerning the EEZ, a brief clarification of this particular aspect of the unique navigation regime would be useful.
The term “normal mode” is not defined in the Convention. It seems clear, however, from the drafting history that it is intended to refer to that mode which is normal or usual for navigation by the particular type of ship or aircraft making the passage or overflight in given circumstances.76 It includes submerged passage for submarines; and for aircraft, it means flight at whatever altitude and with speed appropriate in the given circumstances.77 Such ships and aircraft must “refrain from any activities other than those incident to their normal modes of continuous and expeditious transit unless rendered necessary by force majeure or by distress” (Articles 39(1)(c) and 54).
Accordingly, what is allowed for such ships and aircraft other than simple navigation are those activities which are incident to continuous and expeditious navigation, apart from emergency situations. The specific kind of activities covered by this provision would depend on whether the navigation is through a strait or an archipelagic sea lane; their actual effect in terms of security; possible navigation hazards; environmental vulnerability; and other ship and air traffic. Obviously, a wider range of ‘incidental’ activities would be allowed in long archipelagic sea lanes than in short straits.
In the practice of the US, “normal mode” means that surface warships may transit in a manner consistent with sound navigational practice and the security of the force.78 In concrete terms, submarines may transit submerged, military aircraft may overfly in combat formation and with operation of normal equipment, and surface warships may transit in a manner necessary for their security, including formation steaming and the launching and recovery of aircraft, where consistent with sound navigational practices.79
Although State practice relating to this terminology has been little publicized, it appears that no serious challenge has been made to the general understanding of the 1982 UNCLOS provisions. Certain specific questions, however, have been raised in connection with navigation through particularly long archipelagic sea lanes, such as the launching of aircraft, use of radar and sonars. According to Oxman, it should be expected that naval and air forces in transit will take normal defensive precautions against attack, and for security and navigation purposes, they may, for example, communicate by radio, use radar or sonar, and where circumstances permit, travel in defensive formation and use defensive maneuvers.80 With regard to military aircraft, the “normal mode” may require transit alone or in squadron formation depending upon circumstances, and helicopters or fixed wing aircraft may also accompany warships in transit in a defensive mode.81
The term ‘hostile intent’ is not used anywhere in the 1982 UNCLOS. It has been reported that China believes the following actions in the EEZ by a foreign country have hostile intent:
(1) carrying out military reconnaissance activities, which is interpreted as an electronic invasion and a threat to the coastal State;
(2) navigation or flying of military vessels or aircraft across the path of the coastal State's vessels or aircraft;
(3) carrying out military activities or deploying forces;
(4) carrying out close observation or simulated attack; and
(5) entrance of submarines into the EEZ or their carrying out of a simulated attack therein without permission of the coastal State.82
This list covers a broad range of activities. Some of them like reconnaissance activities and the navigation of submarines have generally been considered as part of the freedom of navigation or “other internationally lawful uses” of the sea. Some others may be dealt with in the context of the “due regard” rule. It is not clear, moreover, what legal consequence would be attached to activities having ‘hostile intent.’ Before drawing any conclusion, therefore, further clarification by China would be necessary as to the exact contents of the list and the legal consequences of the listed activities.
By contrast, the practice of the US appears to be clear: it views the determination of ‘hostile intent’ as very specifically context-based, and there are specific guidelines to help commanders to determine hostile intent and the appropriate response.83 Obviously no commonly shared notion of the term “hostile intent” exists. With the exception of the US, the term appears to be used normally in various undefined political contexts. It is thus doubtful if any meaningful definition could be worked out internationally in the law of the sea context.
Article 300 of the 1982 UNCLOS provides that States Parties “shall exercise the rights, jurisdiction and freedoms recognized in this Convention in a manner which would not constitute an abuse of right.” This provision, enunciating the principle of non-abuse of rights, emerged toward the end of UNCLOS III out of the two previously tabled informal proposals. One was the proposal by Mexico to the effect that all States should exercise their rights and jurisdictions recognized in the convention in such a manner as not to unnecessarily or arbitrarily harm the rights of other States or the interests of the international community.
This text was accepted by consensus in a smaller negotiation group. Subsequently, the US submitted another text, providing simply that States should not abuse the rights or misuse the powers recognized in the Convention. On the basis of these texts, the Informal Plenary adopted the text of Article 300 at the resumed eighth session in 1980, on the understanding that the provision was to be interpreted as meaning that the abuse of rights was in relation to those of other States, and that Articles 300, 301 (Peaceful uses of the seas) and 302 (Disclosure of information) would go in as a single package.84 According to an authoritative commentary on the Convention, this “presumably means the abuse of a State's own rights to the disadvantage of another State or States”.85 The fact that the reference to the interests of the international community that had been included in the Mexican proposal was dropped would also support this interpretation. The application of Article 300 is thus limited to relations between States Parties to the Convention and concerns the unnecessary or arbitrary exercise of rights, jurisdiction and freedoms or the abuse or the misuse of powers by such a State Party.86
Generally in international law, abuse of rights refers to the exercising by a State of a right “either in a way which impedes the enjoyment by other States of their own rights or for an end different from that for which the right was created, to the injury of another State.”87 More concretely, it has been pointed out that such an abuse may arise in three distinct legal situations. Firstly, a State exercises its rights in such a way that another State is hindered in the enjoyment of its own rights and, as a consequence, suffers injury. Secondly, a right is exercised intentionally for an end which is different from that for which the right has been created, with the result that injury is caused. And thirdly, a State exercises its rights in an arbitrary manner, causing injury to other States but without clearly violating their rights.88
International law, on the whole, prohibits the abuse of rights,89 and this principle of non-abuse of rights is often found in treaties, including the 1982 UNCLOS. The three situations mentioned above are all relevant to the context of the various uses of the EEZ. For example, a State may use a certain area for navigation by military vessels which cause injury to the fishing interests of the coastal State, either violating, or even without violating, the latter's rights. There could also be situations in which certain activity in the name of MSR is undertaken for non-MSR purposes, injuring the security interests of the coastal State. In any case, the fundamental element in the application of the non-abuse of rights principle is the existence of injury resulting from such an abuse.90
After the EP-3 incident in April 2001, in addition to the violation of Article 58 of the 1982 UNCLOS, China accused the US of exceeding the “overflight freedom” principle and abusing of that principle.91 In view of the fact that flights above EEZs have been routinely used for intelligence gathering purposes by various States including China in the past, it would be difficult for China to advance this argument on the basis of Article 300, unless it can prove the specific damage caused by the US act, or until the international community reaches agreement that SIGINT and similar activities are considered abusive of the freedom of overflight under international law.
There appears to be broad agreement that the term “peaceful uses/purpose” in the context of the EEZ means the uses of the EEZ, or the purposes of activities conducted therein or thereabove, other than those which threat or use force which would be inconsistent with the Charter of the United Nations. However, the question arises whether certain types of active intelligence gathering activities, particularly those highly advanced EW technologies designed to elicit reactions or responses from the targeted coastal State, are contrary to the peaceful use/purpose clauses. Since such activities do not involve threat or use of force, however, it is more appropriate to deal with this question under the terms “other internationally lawful uses” or “due regard”.
The notion of “threat of force” used in the 1982 UNCLOS is the same as that used in the UN Charter. It is accompanied by a coercive intent to compel another State to take or not to take certain specific action, and directed against the territorial integrity or political independence of that State or used in any other manner inconsistent with the Charter. No disagreement has apparently been expressed with this meaning in the context of the law of the sea. The problem, however, is that States often use the term in a broader sense usually in non-legal, rhetorical contexts, and not in a strictly legal context.
There is consensus on the general meaning of “freedom of navigation and overflight” in and above the EEZ, as clearly confirmed in Article 58(1). General agreement also exists regarding most of the restrictions imposed on the exercise of such freedoms as provided in various articles of the 1982 UNCLOS. However, no agreement exists on what kind of other restrictions may be imposed. These questions should be dealt with under the terms “other internationally lawful uses” and “due regard”.
No disagreement appears to exist regarding the meaning of ‘residual rights,’ as embodied in Article 59 of the 1982 UNCLOS. However, problems could occur in the application of that article to actual situations. The Article 59 mechanisms should be used to deal with such situations. However, difficulties may remain with respect to disputes concerning military activities, which may be exempted from compulsory third party settlement procedures under Article 298.
Regarding the expression “other internationally lawful uses of the sea” related to the freedoms of navigation and overflight and of the laying of submarine cables and pipelines, there is no general agreement exists with regard to which activities are covered by the term.
One such activity is military maneuvers, particularly those involving the use of weapons. Several States take the view, contrary to major maritime States, that they are not allowed without the consent of the coastal State. It appears that the principal concerns of the former States are the possible interference with the interests of the coastal States. It is suggested that a set of practical guidelines or code of conduct be developed with a view to voluntarily restricting military maneuvers, in terms of, e.g., the time, location, scale of operations, and types of weapons used in order to avoid adverse effects on and reactions by the coastal States.
There appears to be broad agreement that the use of devices, installations and structures attached to the seabed, such as sonar monitoring or surveillance systems and navigational aids, are regarded as “other internationally lawful uses”.
With regard to military intelligence gathering activities, while conventional operations have generally been regarded as falling under lawful uses of the sea, doubts are being voiced about the highly advanced active intelligence gathering activities, with the use of radar and electronic systems targeted at defense and communication systems of the coastal State. Since such activities involve a high risk of causing dangerous consequences, there is an urgent need for working out a common understanding and voluntary guidelines to regulate them.
As regards expendable marine instruments, consensus seems to exist that the use of such instruments for survey purposes is part of “other internationally lawful use”, while those used for MSR are to be governed by Part XIII of the Convention.
With respect to hydrographic surveys and military surveys, it has been generally understood that survey activities, unlike MSR activities, fall under “other internationally lawful uses”. Recently, however, China has enacted a new law which reportedly would deny such understanding. The exact contents and intentions of the Chinese law are not entirely clear, but if China pursues that position, new international efforts may be required to resolve the differences.
Despite rather clear provisions in the 1982 UNCLOS, there is a division of views among States regarding the jurisdiction of the coastal State with respect to “installations and structures” in the EEZ. While major Western maritime powers consider that the coastal State's jurisdiction is limited only to those installations and structures which are used for economic resources, MSR and environmental purposes, several developing States claim such jurisdiction over all types of installations and structures. The central issue behind this controversy appears to be the possible construction or use of installations, structures or other devices for military use. Since the importance of such devices may be changing with advances in technology, it is suggested that the question be reviewed by States with a view to reaching a common understanding or a compromise solution.
The Convention requires both the coastal State and the user State of the EEZ to have due regard to each other's rights and duties, thus trying to balance the rights and interests of both sides. It seems clear that the due regard requirement enjoins user States from activities that interfere with the rights and interests of the coastal State. No agreement exists, however, as to whether such interference must be “serious”; nor is there agreement on what such “rights and interests” mean in concrete terms. General agreement on these points will not be easy to reach. It would be useful, however, to start with the preparation of a set of guidelines or a code or conduct, enumerating the kinds of concrete acts which should or should not fall under the “due regard” requirement.
No established definition of the term “hostile intent” exists, at least in the law of the sea context. Nor does a common understanding exist, as to what legal consequences would ensue upon the determination of “hostile intent”.
Abuse of rights, prohibited under Article 300 of the 1982 UNCLOS,
means the unnecessary or arbitrary exercise of rights, jurisdiction and
freedoms, or the abuse or misuse of powers by a State Party against another,
causing injury to the latter. No disagreement seems to exist on this broad
definition. Since the rule is applicable in a variety of situations, however,
difficulties may often arise in applying it to actual cases. Solutions would
have to be found on a case-by-case basis.
Volume 29, Issue 2 , March 2005, Pages 123-137
Military and Intelligence Gathering Activities in the Exclusive E conomic Zone: Consensus and Disagreement II
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