Abstract

Definitions of terminology is the key to the application of the Law of the Sea. Definitions of a term can be determined from its generic characteristics and specific differences. Using this method, military hydrographic surveys are not a threat of use of force.

Keywords: EEZ regime; Key terms; A Russian perspective

Article Outline

1. Peaceful uses

2. Threat of force

3. Conclusions

References

Terminology is of fundamental importance in the application of the Law of the Sea. During the Tokyo meeting most participants were of the opinion that the 1982 UNCLOS in establishing the EEZ left many terms undefined, and thus the regime ambiguous, particularly regarding military uses of foreign EEZs. This ambiguity is in turn reflected in national laws.

In Russian law, it is generally assumed that the definition of a term can be determined from its generic characteristics (genus proximum) and specific differences (differentia specifica) of the phenomenon being defined [1]. In this context, a generic feature distinguishing military activity from other activities is its purpose of ensuring the security of the flag State, and a specific difference is the use of weapons for such purposes.

1. Peaceful uses

A well-known Eastern saying goes ‘you may repeat a countless number of times the word halva, but it won’t become sweeter in your mouth’. Imagine yourself as a captain of an antisubmarine cruiser instructing your crew to sail with ‘peaceful purposes,’ and that the activities on the cruise must be innocent and ‘not prejudicial to the peace, good order or security of the coastal state’ [2]. Every cruise of a naval vessel is related to training the crew in warfare. And any military vessel or aircraft can inflict damage on its opponents. If that possibility is taken at face value, then it would be necessary to ban all military activity outside the territory of the flag State.

Although the term ‘peaceful uses’ appears in official government statements and multilateral treaties before the 1982 UNCLOS [3], examination of State practice leads to the conclusion that this term still lacks an authoritative definition. However, ‘peaceful’ does not necessarily mean ‘non-military’. Let us look at one of its early uses, in the Outer Space Treaty of 1967. The UN General Assembly resolution 1148 (XII) first introduced the phrase ‘exclusively for peaceful purposes,’ at the end of the 13th UN General Assembly meeting in 1958. In the debate, nearly all States used the term ‘peaceful’ as opposed to ‘military’. Therefore, the common understanding was to avoid any military uses whatsoever. But at the time of the debate, both the United States and the Soviet Union were developing satellites to serve military objectives. When this became evident, the legal meaning of the phrase ‘peaceful uses’ changed from non-military to ‘non-aggressive.’ Accordingly, all military uses of outer space were permitted and lawful as long as they remained ‘non-aggressive.’

Under the 1969 Vienna Convention on the Law of Treaties, the words in a treaty must be interpreted in accordance with their ordinary meaning. However, Article 31 of the Vienna Convention provides that in the process of interpretation any subsequent practice in the application of the treaty shall also be taken into account. Bearing in mind that the 1982 UNCLOS permits military activities except those explicitly prohibited by treaty or customary law, the term peaceful as applied to military uses in the EEZ should be understood as ‘non-offensive…or without threat.’ However, the regime of the EEZ is not static. Many States are converting green water navies to blue water navies and this will increase military use of foreign EEZs, with possible repercussions for the EEZ regime.

2. Threat of force

It is true that the UN Charter uses the terms ‘threats to the peace’ and ‘the threat or use of force.’ But these terms are not defined in absolute terms but in relation to ‘the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations’ [4].

But there is no generally accepted meaning of ‘threat’ with respect to the EEZ. The etymology of the term equates it with a ‘promise to cause harm or evil’. From a legal viewpoint it may be determined as ‘arising from danger to cause physical, material or other damage to the State (and so to public interests, as well as to separate persons or interests thereof) in the maritime space of its EEZ.’ Since the EEZ is established for protection of the coastal State's natural resources, the ‘threat’ or danger should be viewed as pertaining strictly to economic issues.

A commonality of threat and danger is that they both may cause damage to the economic security of the coastal State. But they are not the same. First, threat is different from danger by the degree of its readiness to cause damage. A threat is a stage of extreme aggravation of contradictions, an immediate pre-conflict state at which there is a readiness of any of the actors to use force with respect to another for attaining its purpose. Danger is the stage when contradictions are nascent, when one of the actors has the potential to use force or a threat of force in its interests, but is not yet ready to use it.

Second, a threat includes two components: intent and opportunity to cause damage to security interests, while danger is limited to only one of these components.

Third, a threat is always personified, and has a targeted nature implying the presence of an obvious source of the threat and an object of the threat. Unlike a threat, danger is often hypothetical, and its subject and/or object are unclear.

Fourth, a danger comprises a potential threat to cause damage to security interests, but its application requires the relevant conditions (accumulation of opportunities and formation of intent). A threat is a direct opportunity to cause damage, separated from doing so only by the time necessary to decide to do so.

Thus a threat to a State's interests in its EEZ is readiness (intent plus opportunity) of one of the subjects (for instance, a military vessel) to cause damage to the sovereign rights of another subject (for instance, the coastal State) in order to resolve differences between them.

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 [5].’ Let us evaluate the use of force on the part of the coastal State in this case. ‘Use of force’ in the EEZ means the unlawful actions of a ship, aircraft or other means of a foreign State which violates the immunity of a military vessel or aircraft or other object of another State, including civilian ships and installations or structures owned by the State (and operated for non-commercial purposes), thus denying the right of the state to the freedom of the high seas, including physical impact on the ship, aircraft, other said objects or their crew. ‘A threat to use force’ means the threat to undertake the above. It would not appear as if normal military hydrographic surveys are a threat of use of force.

The term ‘hostile intent’ does not appear in the 1982 UNCLOS. However, navigation of military vessels or aircraft across the path of the coastal State's vessels or aircraft or the carrying out of close observation or simulated attack are recognized by the Russia–China Incidents Agreement as dangerous maneuvering which should be preceded by special signals. When a hostile act occurs, naval forces may use force, including armed force, proportionally, in self-defense for protection, neutralization or, if necessary, destruction of the threat.

3. Conclusions

Interpretation of a single word or term can be argued ad infinitum. Even when definitions are ‘clarified’ and ‘exact’, loopholes and differing perspectives always arise. Regarding the disagreements on terms describing the EEZ regime for foreign naval activity, many aspects are based on the different abilities to use naval power. As an example, the island state of Kiribati is composed of 33 small islands with a total area of 280.24 square miles. Twenty of these islands are inhabited by the nation's population of slightly less than 100,000. Kiribati's EEZ extends over 1,370,300 square miles of ocean, an astounding 4890 times its own land area. This is the equivalent of more than one-third the land area of the United States and about 25% of the EEZ area controlled by the United States. Kiribati does not have the military ability to control foreign naval activity in its EEZ. So it may well be tempted to use international law to create a regime in its favor. ‘Due regard’ is the 1982 UNCLOS key to reaching a balance.

References

[1] See: for instance, Taranovsky FB. Encyclopedia of law, YK Mattisen, 1917, p. 58.

[2] UNCLOS, Article 19.

[3] Protocol on Environmental Protection to the Antarctic Treaty (1991);.
The Antarctic Treaty (1959) Article I, Article IX;.
Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and Their Destruction (1972) (Article I, 2 10);.
Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction (1993) (Article II, Article V, Article VIII, Article XI);.
Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and other Celestial Bodies (167) (Article IV);.
Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (1979) (Article 3);.
Treaty on the Non-Proliferation of Nuclear Weapons (1968) (Article III, Article IV);.
Convention on International Liability for Damage Caused by Space Objects (1972);.
Convention on Registration of Objects Launched into Outer Space (175);.
South Pacific Nuclear Free Zone Treaty (Article 4) and some others.

[4] The Charter of the United Nations and Statute of the International Court of Justice, United Nations, New York, Reprint October, 1967, p. 6.

[5] Valencia MJ, editor. The regime of exclusive economic zone: issues and responses, A Report of the Tokyo Meeting, Honolulu: East–West Center; May 2003, pp. 52–53.

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