Abstract

Military and intelligence gathering activities will likely become more intensive, intrusive, controversial and dangerous. Regarding the regime covering these activities, there is general agreement that the exercise of the freedom of navigation and overflight in and above Exclusive Economic Zones (EEZs) should not interfere with the rights of the coastal State in the EEZ. But there is disagreement regarding interpretations of relevant 1982 UNCLOS provisions, the means to resolve the disagreements, or if there is even a need to do so. Increased dialogue between maritime powers and coastal States is necessary to reach a mutual understanding of key terms with a goal of developing some agreed voluntary guidelines for such activities and the means and manner of implementing them.

Keywords: EEZ; Military and intelligence gathering activities; Tokyo meeting

Article Outline

1. Background

2. Issues

3. Next steps

References

1. Background

Over the past three decades, multilateral discussions concerning the Law of the Sea, and publicization of the importance of marine resources and uses, as well as their fragility and limits, have contributed to an increased ‘marine awareness’ and consequent widespread claims to maritime space by many of the world's nations [1]. The United Nations Convention on the Law of the Sea (1982 UNCLOS) came into effect on 16 November 1994, one year after the last of the requisite 60 signatories ratified it [2]. The Convention changed considerably the rules of international law relating to the boundaries of the continental shelf and to movement through international straits and archipelagoes. It created the 200 nm Exclusive Economic Zone (EEZ) and developed new principles relating to scientific research therein and the protection of the marine environment. Its plethora of rights and responsibilities in the ocean is now international law for those nations which have ratified it, including, all nations in and active in East Asia, except for North Korea and the United States. However, some jurisdictional claims have tended to develop at variance with the provisions of the Treaty. Regardless of whether the United States ever ratifies the Treaty, it argues that many of its provisions have already become customary international law.

Meanwhile, maritime issues have now risen to the forefront of current regional security concerns [3]. The 1982 UNCLOS introduced new uncertainties and conflict points into the region, particularly in regard to EEZs and continental shelf claims and boundaries. Indeed many emerging security concerns such as piracy, pollution from oil spills, safety of sea lines of communication, illegal fishing and exploitation of others offshore resources are essentially maritime. And the new threat of terrorism has a significant maritime component. The addressing of such issues will necessitate acceptance of broader responsibilities and different priorities by military authorities, both for force structure development and for their operations and training [4].

Together with the requirements for defense self-reliance and force modernization, these concerns are reflected in the significant maritime dimension of the current arms acquisition programs in the region: maritime surveillance and intelligence collection systems, multi-role fighter aircraft with maritime attack capabilities, modern surface combatants, submarines, anti-ship missiles, naval electronic warfare systems, and mine warfare capabilities. Because some of these new systems have offensive capabilities, they can be seen as provocative, and thus destabilizing, by those countries that do not have them and lack the means to acquire them. Possession of these systems undoubtedly increases the risk of inadvertent escalation in time of conflict. It is therefore particularly important that mechanisms be instituted to address particularly troubling maritime issues. This is especially so for military and intelligence gathering activities.

There are several factors at play which bring this set of issues to the fore. First, military activities in the EEZ were a controversial issue during the negotiations of the text of the 1982 UNCLOS and continue to be so in State practice. Some coastal States such as Bangladesh, Brazil, Cape Verde, Malaysia, Pakistan and Uruguay contend that other States cannot carry out military exercises or maneuvers in or over their EEZ without their consent. Their concern is that such uninvited military activities could threaten their national security or undermine their resource sovereignty. Others specifically state the opposite. Indeed, maritime powers such as the United States insist on the freedom of military activities in the EEZ out of concern that their naval and air access and mobility could be severely restricted by the global EEZ enclosure movement.

Second, as technology advances, misunderstandings regarding military and intelligence gathering activities in foreign EEZs are bound to increase. There have been vast improvements in the range and accuracy of both weaponry and intelligence collection including Aegis, satellites, submarines, aircraft carriers, missiles, and over-the-horizon weaponry. Indeed, some argue that technology has so dramatically changed the art of warfare and intelligence gathering that extending restrictions in the EEZ to constrain military and intelligence gathering will be largely ineffective. However, there are still some distinct advantages in being able to operate in and over foreign EEZs, such as showing the flag, testing the response of the coastal State, or gathering certain types of signal intelligence, and thus maritime powers will most likely continue to resist any restrictions on such activities. Third, it seems that there is some confusion and even double standards regarding the regime governing such activities, and stark differences of opinion abound.

Fourth, there is a growing dialectic between coastal States and maritime powers. Military and intelligence gathering activities by foreign nations in or over others EEZs are becoming more frequent due to the accelerating pace of globalization; the tremendous increase in world trade; the rise in the size and quality of the navies of many nations; and technological advances that allow navies to better utilize oceanic areas. Other contradictions result from the increasing scarcity of resources, the growing threat to the marine environment, and concerns with safety of sealanes. At the same time, coastal States are placing increasing importance on control of their EEZs. Of the 1700 warships expected to be built during the next few years, a majority will be smaller, coastal patrol vessels and corvettes, suggesting even further coastal State emphasis on control of their EEZs.

Fifth, the end of the Cold War and the new threats of today like proliferation of weapons of mass destruction and smuggling of drugs and humans further encourage both coastal and maritime States to extend their control or surveillance beyond their territorial seas, in some cases to others EEZs. Certainly in the aftermath of September 11, 2001, many nations, and the United States in particular, have increased their scrutiny of both military and commercial aircraft and ships approaching from near and far. Sixth, given the myriad boundary disputes and overlapping claims it is not always clear where one nation's jurisdiction ends and another's begins. These developments imply that certain UNCLOS provisions formulated 25 years ago in a very different political and technological context must be reinterpreted in the light of these new circumstances.

The Tokyo Meeting was part of a dialogue series designed to define the issues, areas of agreement and disagreement, and possible voluntary guidelines for military and intelligence gathering activities in foreign EEZs. Topics covered included a summary of the previous Meeting (the Bali Meeting), operational modalities and rules of engagement, U.S. initiatives to enhance maritime security, intelligence collection operations and EEZs, options for resolving disagreements, conclusions, and the way forward.

2. Issues

A major conclusion of the dialogue is that military and intelligence gathering activities in EEZs are most likely going to become more controversial and more dangerous. In Asia, this disturbing prospect reflects the increasing and changing demands for technical intelligence; the robust weapons acquisition programs, especially increasing electronic warfare (EW) capabilities; and the widespread development of information warfare capabilities. Further, the scale and scope of maritime and airborne intelligence collection activities are likely to expand rapidly over the next decade, involving levels and sorts of activities quite unprecedented in peacetime. They will not only become more intensive; they will generally be more intrusive. They will generate tensions and more frequent crises; they will produce defensive reactions and escalatory dynamics; and they will lead to less stability in the most affected regions, especially in Asia.

There could well be more than a hundred signals intelligence (SIGINT) aircraft operating in East Asia within a decade, including dozens of UAVs. These are likely to cause substantial air traffic control problems, and increase the chances of accidents due to navigation failures and collisions. Countries subject to several daily SIGINT flights around their borders, or continuous surveillance by high-altitude UAVs such as the Global Hawk, will inevitably take counter-actions. These actions could range from shooting down the offending aircraft in extreme cases, to more likely, the development of electronic counter-measures (ECM). The latter will in turn generate an upgrading of EW capabilities.

Thus, ‘peacetime’ EW engagements will become more common. And in crisis situations, SIGINT and EW activities could become inflammatory and escalatory. Adversaries will want to protect their electronic secrets, e.g., the locations of emergency transmitters, new communications frequencies and circuits, alerted air defence system, and back-up e-networks.

Some aspects of regional SIGINT and EW capabilities may even encourage pre-emptive action. Many new long-range missile systems, including land-attack cruise missiles, anti-ship missiles, anti-radiation air-to-surface missiles, and some air-to-air missiles require over-the-horizon or beyond-visual-range targeting information, frequently provided by electronic intelligence (as well as radar and electro-optical imaging) systems. If these systems are degraded by an adversary, so is the utility of the missiles. At the strategic level, the collection systems which provide strategic intelligence to decision-makers as well as operational intelligence to defence commanders, and which are typically vulnerable to both physical and electromagnetic attacks, become high-priority targets in counter-command and control strategies. Anticipating this, an adversary may be pressed to take pre-emptive action.

Moreover, peripheral aircraft flights are particularly provocative because they are visible signs of efforts being made to penetrate the electronic secrets of the targeted country. And some such activities may even deliberately provoke and then monitor the target country's electronic responses, such as the changes in radar operating modes and communications frequencies, and in the chains of command and reportage at higher alert levels.

Fortunately, there is at least some agreement on the conduct of military and intelligence gathering activities. In particular, there is agreement that the exercise of the freedom of navigation and overflight in and above EEZs should not interfere with or endanger the rights of the coastal State to protect and manage its own resources and its environment, and should not be for the purpose of marine scientific research. And the exercise of such freedoms of navigation and overflight should not interfere with the rights of the coastal States with regard to their establishment and use of artificial islands, installations and structures in the EEZ.

But there is much more disagreement regarding these issues. Some of the disagreements relate to different interpretations of the relevant Law of the Sea provisions, some relate to the means of attempting to resolve the disagreements, and some relate to whether or not there is even a need to resolve such disagreements. The disagreements relating to the interpretations of 1982 UNCLOS provisions generally relate to the exact presumed meaning of the terms in the Convention as well as the meaning of specific Articles. There are specific differences with regard to the meaning of ‘freedom’ of navigation and overflight in and above the EEZ, i.e., whether such freedoms can be limited by certain regulations—national, regional or international—or whether such freedoms are absolute.

There are also different interpretations regarding the precise meaning of the Convention's phrase allowing “other internationally lawful uses” of the sea in the EEZ. It is not clear what other lawful uses of the sea this term includes other than the right to navigate and overfly the EEZ. For example, some would argue that it clearly does not include warfare in the EEZ of a non-belligerent, while others would insist that under certain circumstances such as the right of self defense, such activities are allowed. The interpretation of this phrase will in turn be affected by the interpretation of such terms as “due regard”, non-abuse of rights, peaceful uses, and the obligation not to threaten or use force against other countries. In this context, some question whether some military and intelligence gathering activities are a lawful exercise of the freedom of navigation and overflight, whether they are a non-abuse of rights, whether they pay “due regard” to the interests of the coastal countries, and whether they are a threat to peace and security as well as the interests of the coastal States.

If the activities violate these conditions, then the coastal State has the right to protect itself and to request the foreign ship or aircraft not to carry out the questionable activities. There would be a problem, however, if the foreign ship or aircraft disregarded the request and whether, in such a situation, the use of force or ‘board and inspect’ might be justified. If such action is motivated by the need to protect marine resources and the environment, the request would be legitimate. But it is not clear whether such rules can be applied to foreign vessels conducting military and intelligence gathering activities in and above the EEZ.

There also continues to be disagreement whether some military surveys and hydrographic surveys are scientific research and should be under a consent regime. The United States and other maritime powers argue that military and hydrographic surveys are distinct from marine scientific research (MSR) and are therefore not restricted by the provisions of the 1982 UNCLOS. According to this view, military intelligence gathering surveys are not related to resource exploitation, and also the results would not normally be published or disseminated like scientific research. And it is argued that hydrographic surveying involves the mapping of the sea floor to facilitate navigational safety, particularly for submarines.

In addition to the question of consent, there is the question of peaceful purpose (Article 88: Reservation of the High Seas for Peaceful Purposes). Some argue that at least some activities may not be permitted because of this restriction, such as the implanting of surveillance devices monitoring the exit of submarines from ports, as well as devices which are capable of rendering ineffective the defenses of the coastal State. Others argue that these activities are ‘defensive’ in nature and are thus neither scientific research nor non-peaceful. A third sub-issue is that MSR can be undertaken by planes as well as from outer space. Planes have the right of overflight over the EEZ, but if they are gathering information regarding resources, some coastal States feel they should have some legal means of challenging the aircraft and investigating its activities.

There is also disagreement on how to deal with these uncertainties. One opinion is that there is no need to be concerned, because there is no general pattern of such behavior or incidents. According to this view, each case should be dealt with separately by the parties concerned either through direct bilateral discussions or through direct bilateral agreements or arrangements. This option may work in some cases but not in others, particularly if the relations between the parties are poor or if there is no bilateral arrangement or agreement between them. Leaving the problem to chance could be dangerous in the long run. Moreover, the number of such incidents is rapidly proliferating and is beginning to form a pattern. And if the US-led Proliferation Security Initiative is implemented on the high seas, controversy may reach a crescendo. A key problem is that no one country can resolve these issues by itself. But co-operation may be difficult to achieve given different political perspectives on the definition of ‘terrorism’ and ‘terrorist’ and developing country concerns regarding sovereignty and jurisdictional issues.

As alternatives, the following approaches have been suggested:

1. A legal opinion on a particular matter could be sought either through the International Court of Justice as an ‘advisory opinion,’ or through the International Tribunal for the Law of the Sea.

2. The issues could also be dealt with through national legislation. Although this is not the ideal, national governments may be forced to deal with these matters unilaterally in order to protect their security and other interests. Indeed, where the text of a governing treaty leaves matters ambiguous or unresolved, the subsequent practices of States become particularly important to determine the proper interpretation of the treaty's provisions. If more and more coastal countries unilaterally enact national legislation prohibiting the exercise of military and intelligence gathering activities in and above their EEZ, then the prohibition against conducting such exercises could become part of customary international law through State practice, despite the opposition of some countries, particularly if those countries are not parties to the 1982 UNCLOS.

3. Another option is bilateral or regional arrangements between maritime powers and coastal countries as well as between adjacent and opposite neighboring countries. But it should be understood that the rules may differ between various bilateral or regional arrangements. The benefit of such an arrangement would be practical, in the sense that the countries involved would avoid regional tension by seeking solutions that could be acceptable to the countries in the region.

Failing the rather unlikely resolution of these issues by the ICJ or the Tribunal, these disputes may have to be addressed through a chaotic and disorderly process whereby countries assert and defend their positions through State practice, followed by protests by disagreeing countries, and eventually by the give and take of diplomatic negotiations. Sooner or later a consensus will emerge through this process.

A more orderly option would be to increase dialogue, CBMs, and cooperative efforts among the States involved and strive for collective compromise and consensus. In this regard, the practice and experience with regard to the management of potential conflicts in the South China Sea could be instructive. A similar dialogue could be promoted on military and intelligence gathering activities between the regional or global maritime powers and the relevant coastal States, particularly those that are sensitive to such activities in their EEZ. This dialogue would have as its objective the development of voluntary guidelines regarding such activities. In pursuing a similar product, one must be particularly mindful of the interests of the maritime powers, for without their involvement, the effort would be moot, at least for them. Nevertheless, such efforts could still be focused on building an initial core of arrangements within East Asia.

The process should be all-inclusive and not exclude any directly interested parties; be as flexible as possible and avoid institutionalization, unless it is absolutely necessary; be informal, at least in the beginning; involve participants who are senior or important personalities in their governments, albeit in their private capacities; involve leaders who are widely perceived to be impartial and dedicated interlocutors, and who understand that managing potential conflicts requires a long-term effort and continuity; minimize differences and emphasize commonalities; be cost effective and step-by-step; have a simple objective, in this case to avoid misunderstanding, dispute and conflict; and be supported by sufficient resources, both financial and human.

3. Next steps

The specific next steps for this effort should start with the premise that limitations on military activities in the EEZ are greater than they are for civilian activities on the high seas. For example, there is agreement that there are limitations on these activities regarding threats to resources and the environment. However, the range of possible impacts of military activities on resources and the environment needs to be defined, including, e.g., live fire exercises and active sonar. It should also be recognized that it is dangerous to leave the interpretation of ‘due regard’ solely to the operator on the spot. The guidelines for the operator must be clear. Also, there is concurrence that if the activity constitutes a threat of use of force against the State, it is not allowed.

A second premise is that the activities of a foreign State should not interfere with the duties of the coastal State to monitor and manage its resources, particularly its surveillance and patrol in its own EEZ. There is agreement that the coastal State has the right to protect, manage and exploit the living and non-living resources of its EEZ; the duty to protect and preserve the marine environment of its EEZ; the right to conduct (and to give permission for) MSR in its EEZ; and the right to construct, operate and use artificial islands, installations and structures in its EEZ.

Needed is a range of understanding of key terms, a draft set of guidelines for activities in the EEZ, a plan of action, and next steps. This would help focus the dialogue process and be a first step in a CBM process. And it would also identify co-operative programs that could eliminate misunderstandings on this topic. It must be understood that the intended product is not a legal document. Whether or not it becomes soft law will be in the eye of the beholder. If agreed voluntary guidelines are produced, they can be transmitted to governments. Governments may not agree with them, but this is the role of an informal group. Above all, it must be remembered that this is not an attempt to settle the disputes—only to manage them.

To summarize, the specific next steps are:

1. fact finding regarding previous incidents;

2. production of a glossary of definitions of critical terms or a range thereof;

3. categorization of activities in the EEZ as to what should or should not be allowed or restricted, i.e., draft guidelines;

4. the manner of implementation of coastal States’ rights;

5. the means and manner of enforcement of any agreed rules; and

6. suggestions for policy.

It is important to the process to include all those who wish to participate. Because the military is an extension of the State, policy planners should be involved in the dialogue, and it should examine political as well as military views. Also needed are ‘locomotives’ as the leaders. It is also important to keep the planning group balanced and independent of specific national interests. This requires independent funds.

The approach to this task may be likened to that of a consultant. The present is the strategic stage. The next stage is the mission which requires the choice of technology, resources and process. There are some issues that can be addressed right away and some that need to be addressed over the longer term. Focus must be maintained and ambitions kept in check. The process needs to address one problem at a time and to seek solutions. And it needs to consider existing arrangements and previous studies that can be used to move forward. Moreover, there should be timelines and ‘deliverables’.

Continuity in the process is of utmost importance. It is also important to keep the dialogue informal and uninstitutionalized. The participants should act as individuals; they should not be like-minded persons in similar professions. The active participation of navy personnel in this dialogue is particularly important. They understand better than most how the sea can be a friend or a common enemy. Indeed in the best days of the law of the sea negotiations, the navy captains were called the custodians of the oceans and we must call on them again for their advice. This dialogue has acquired much maturity in a short time and could have a significant impact on the resolution of these issues all over the world.

References

[1] M.J. Valencia, A Maritime regime for North-East Asia, Oxford University Press, Hong Kong (1996) pp. 46–7.

[2] Congressional Record, Proceedings and Debates of the 103rd Congress, Second Session, 140, 86, 30 June 1994.

[3] D. Ball, A new era in confidence building the second-track process in the Asia/Pacific region, Security Dialogue 25 (1994) (2), p. 164.

[4] McCaffrie J, Bateman S. Maritime confidence and security building measures in Asia-Pacific: challenges, prospects and policy implications. Paper presented to the first meeting of the CSCAP Working Group on Maritime Co-operation. Kuala Lumpur, June; 1995. p. 1,5,11.

This is a summary and extracts from A Report of the Tokyo Meeting, Honolulu, East-West Center, 2003: http://www.sciencedirect.com/science?_ob=RedirectURL&_method=externObjLink&_locator=url&_cdi=5952&_plusSign=%2B&_targetURL=http%253A%252F%252Fwww.ewc.hawaii.edu%252Fres-rp-publicationdetails.asp%253Fpub_ID%253D1418.
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