UNCLOS will not uniquely restrict submarine operations
UNCLOS specifically guarantees the right to conduct transits through international straits in "normal modes", which may include submerged transit in the case of submarines. UNCLOS does not explicitly prohibit submerged transit in territorial seas altogether, especially in international straits.
Submarine forces are a key tool in waging the Global War on Terrorism and their unimpeded use is of crucial significance.58 The use of submarine forces provides a unique tactical advantage because of a submarine's ability to monitor a potential enemy undetected for a long duration.59 The ability to transit the ocean beneath the surface is therefore critical to a submarine's ability to maintain the advantage of covertness.60
The impact of UNCLOS on submarine operations hinges on interpretation of Article 20 of the treaty.61 Gordon England, former Secretary of the Navy, has stated that UNCLOS does not restrict or prohibit submarine activities.62 UNCLOS specifically guarantees the right to conduct transits through international straits in "normal modes", which may include submerged transit in the case of submarines. Nevertheless, the Convention mandates that ships refrain from acts that are "prejudicial," including submerged transit in territorial waters; failure to meet this obligation results in a vessel's loss of innocent passage status.63 But, UNCLOS does not explicitly prohibit submerged transit in territorial seas altogether, especially in international straits.64 This notion is echoed by Deputy Secretary of Defense, John Negroponte, who has stated that UNCLOS "does not prohibit or impair [. . submarine activities in anyway."65Statement of John D. Negroponte: On Accession to the United Nations Convention on the Law of the Sea and Ratification of the 1994 Agreement regarding Part XI of the Convention ." Testimony before the Senate Foreign Relations Committee, September 27, 2007. [ More (13 quotes) ]"
The specific argument that the Convention would prevent the United States from using its submarines to collect intelligence is fallacious. Several sources, including the Minority Views in the Senate Committee on Foreign Relations, note that Article 20 of the Convention requires submarines and other underwater vehicles to navigate on the surface and show their flag when engaged in innocent passage. This is correct, so far as it goes. But the minority report then concludes that this would "fail to protect the significant role submarines have played, especially during the Cold War, in gathering intelligence very close to foreign shorelines."
What the minority report fails to mention is that the 1958 Convention on the Territorial Sea and the Contiguous Zone, to which the United States has long been party, contains exactly the same restriction.39 Moreover, the collection of intelligence in any guise within the territorial sea is not "innocent passage."40 Such operations are called espionage, not innocent passage. The United States would never accept foreign submarines or foreign warships engaging in intelligence-gathering operations in the territorial sea off of San Diego or Norfolk. Indeed, when President Reagan signed a proclamation extending the U.S. territorial sea to twelve nm on December 27, 1988, consistent with the Convention, one of the first things that the Coast Guard did was to advise a Soviet military vessel gathering intelligence just a few miles off of Pearl Harbor to leave the area immediately.42 The U.S. military and intelligence communities are well aware that the Convention would have a positive impact on our national security. Moreover, as Senator Richard Lugar, ranking minority member of the Foreign Relations Committee, has argued, it would be unprecedented for the Senate to deny to our nation's military and national security leadership a tool that they have unanimously claimed that they need, especially during a time of war.43
Criticisms that under Article 20 of the 1982 Convention submarines are required to navigate on the surface and to show their flag, without noting that this obligation is already binding on the United States under Article 14 of the 1958 Territorial Sea Convention. Nor does this criticism even bother to mention the critical difference between the 1958 and 1982 Conventions, that under the 1982 Convention, this obligation no longer applies in straits used for international navigation. In such straits there is a right under the 1982 Convention of “transit passage,” permitting transit in the normal mode; which includes submerged transit and overflight.