U.S. has resolved the ambiguity in military activities exemption clause
The United States, as authorized by Article 298, would exempt “military activities” from compulsory dispute resolution. Under the Convention, a state party has the exclusive right to determine what constitutes a “military activity.” The U.S. declaration states:
The Government of the United States of America declares, in accordance with article 298(1), that it does not accept any of the procedures provided for in section 2 of Part XV (including, inter alia, the Seabed Disputes Chamber procedure referred to in article 287(2)) with respect to the categories of disputes set forth in sub-paragraphs (a), (b), and (c) of article 298(1). The United States further declares that its consent to accession to the Convention is conditioned upon the understanding that, under article 298(1)(b), each State Party has the exclusive right to determine whether its activities are or were ‘‘military activities’’ and that such determinations are not subject to review.
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The issue of innocent passage is raised by the concept of the territorial sea.207 In interpreting Article 21 of UNCLOS, some countries have adopted the view that they may, with due notice, create regulations and laws that restrict innocent passage through their territorial sea.208 The greatest restriction in these liberal navigation rules on innocent passage for the United States is the demand for prior notification and permission for the passage of a U.S. war vessel.209 The Convention recognizes the right of passage through the territorial seas, allowing for overflight and navigational freedom of the high seas.210 Currently, the lenient navigation rules include the immutable legal right for ships and aircrafts to travel the international straits without coastal states' interference.211 However, some UNCLOS III members may propose to amend the concept of freedom of navigation to allow the exclusion of vessels.212 As a member of UNCLOS III, the United States would be able to block such negative amendments.213 Further, if it joined UNCLOS, the United States could potentially prevent or decrease "the backsliding" by states that have previously abandoned their excessive maritime claims, yet wish to reinstitute those claims given that the United States is currently not a member.
MOORE: The second point in relations to, are we going to be inhibited in something like the Cuban Missile Crisis, for example. And this is, I think, also something that has some misperceptions about the treaty. This is basically a treaty for peacetime settings. This does not in any way, shape or form interfere with the legal rights of the United States for defense, individual or collective defense, or any of our fundamental kinds of foreign policy issues that we're engaged in. There is nothing in the treaty that has any kind of inhibition that would be a problem for the United States in the Cuban Missile Crisis or in any of the other national security and defense issues that this country has been involved in.
In fact, the chiefs have testified over and over again just to the contrary of that. That is that this helps United States mobility. It helps us move around the world's oceans. And for those who have noticed the latest strategy, Naval strategy of the United States, it's called a 1,000-ship Navy. It is a matter of cooperation with countries all over the world in dealing with terrorism and piracy and all the other issues. We are severely harmed if we are not part of this treaty and are empowered basically to deal with that issue.
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Despite the ambiguity in the language of UNCLOS and the divergence in interpretation of the text, there is some evidence that the Convention did not intend to broadly exclude peacetime military operations in the EEZ.58 For instance, the 1949 International Court of Justice (ICJ) Corfu Channel decision refers to the freedom of navigation of warships in peacetime as a ‘general and well-recognized principle.’59 The ICJ’s findings in the Corfu Channel case were influential in the development of the law of the sea in the UNCLOS conferences.60 This finding is crucial since the freedom of navigation is the foundation for military operations at sea.61 However, the Court’s decision did not specify the scope of the rights included in the freedom of navigation of warships. During UNCLOS III, the President of the Conference, Tommy T.B. Koh, commented on the question of military activities in the EEZ by stating in 1984:
The solution in the Convention text is very complicated. Nowhere is it clearly stated whether a third state may or may not conduct military activities in the exclusive economic zone of a coastal state. But, it was the general understanding that the text we negotiated and agreed upon would permit such activities to be conducted. I therefore would disagree with the statement made in Montego Bay by Brazil, in December 1982, that a third state may not conduct military activities in Brazil’s exclusive economic zone[...].62
Unfortunately, the issue of military activities in the EEZ remains ambiguous and unsettled.
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A number of States, in ratifying the Convention, have chosen to declare that they do not accept procedures for disputes concerning military activities. As of October 16, 2001, those States include Cape Verde, Chile, France, It- aly, Portugal, the Russian Federation, Ukraine, and Tunisia."258 Others, such as India, Pakistan and The United Kingdom, have reserved judgment, per- haps waiting to make a declaration if and when the issue presents itself.259
Given the language of Article 298, and the concomitant proclivity on the part of maritime nations---especially the United States, which is not yet even a party to the Convention-to treat their naval vessels as sovereign entities ex- empt from the normal obligations of commercial vessels plying the seas, it is highly probable that these maritime nations would invoke Article 298 in every case.260 Thus, when disputes arise regarding the military activities of a flag State in the EEZ of a coastal State, it is extraordinarily unlikely that the flag state would submit to the dispute resolution mechanisms of the Convention.
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Criticisms that the United States should not commit to provisions in the 1982 Convention to the effect that the high seas are “reserved” for peaceful purposes and that parties to the treaty shall refrain from “any threat or use of force against the territorial integrity or political independence of any state,” without noting that these obligations simply parallel the obligation in the United Nations Charter, already binding on the United States and every other nation in the world banning the aggressive use of force. These obligations, as those in the United Nations Charter, do not in any way inhibit either the right of individual or collective defense or otherwise lawful military activities. If these provisions did in any way inhibit such activities in the world’s oceans there would have been no agreement on the Convention. This is abundantly evident in the robust naval activity of nations for which the Convention has been in force;
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[MYTH]: Other parties will reject the U.S. “military activities” declaration as a reservation.19 Another false assertion—the American declaration is consistent with the Convention and is not a reservation (that is, in international legal usage, “a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State.”)20 It is an option explicitly provided by article 298 of the Convention. Parties to the Convention that have already made such declarations exercising this option include the United Kingdom, Russia, France, Canada, Mexico, Argentina, Portugal, Denmark, Ukraine, Norway, and China.
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While the Convention explicitly allows a state party to declare that certain conflicts will not be subject to the Treaty’s dispute resolution processes, those exceptions are narrow. Article 298(b) allows a state party to effectively insulate “military activities” from Convention jurisdiction. Concerned that an adverse party might seek to apply the Convention’s jurisdiction to a U.S. activity by characterizing it as nonmilitary, the Department of Defense recommended that accession to the Treaty be conditioned upon “the understanding that each Party [to the Convention] has the exclusive right to determine which of its activities are ‘military activities’ and that such determination are not subject to review.”57 This condition would protect a state party from becoming subject to a Convention-based dispute resolution tribunal if the military activity claim/exemption to such a tribunal were called into question.58
Speaking on behalf of the Joint Chiefs of Staff, Admiral Michael G. Mullen re- iterated the concerns raised by others in the defense community and agreed that the “military activities” exemption condition was of paramount importance in a U.S. move toward accession. The Admiral also agreed that accession was warranted. “Military operations since September 11 . . . have dramatically increased [U.S.] global military requirements.” In particular, Mullen noted that U.S. military operations relied upon “[t]he right of transit passage through international straits and the related regime of archipelagic sea lanes passage.” " While maintaining that those rights were available to the United States under customary international law, “as a party to the Convention, the United States would . . . be in a stronger leadership position to assert its rights.” ""
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Statements made by states to the LOS Convention have a high degree of importance because Article 309 of the Treaty bars state parties from making reservations. State parties may not except out undesirable language or provisions, as that would undermine the nature of the Convention as a package deal.23 Although states may not make reservations or exceptions when signing, ratifying, or acceding to the Treaty, they may provide statements with a view toward harmonizing their domestic laws and regulations with the Convention.24 Article 310 of the Convention provides authority for a state party, at the time of signature, ratification, or accession, or at any time thereafter, to make declarations and statements, provided such statements do not purport to exclude or to modify the legal effect of the provisions of the Convention. One hundred nineteen states have made such statements, including 33 that have done so upon signature, 60 states that have done so at the time of ratification or accession, and 16 more states that have done so at a later date.25
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The Senate can ensure that international tribunals do not gain jurisdiction over our military activities when we join this Convention. In 2003, the Administration worked closely with the Committee to develop a proposed Resolution of Advice and Consent --- which we continue to support --- that contains a declaration regarding choice of procedure for dispute resolution. The United States rejected the International Court of Justice and the International Tribunal for the Law of the Sea and instead chose arbitration. That choice-of-procedure election is expressly provided for in the Convention itself. In addition, and again in accordance with the express terms of the Convention, the draft Resolution of Advice and Consent completely removes our military activities from the dispute resolution process. Furthermore, each State Party, including the United States, has the exclusive right to determine which of its activities constitutes a military activity, and that determination is not subject to review.
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The proposed U.S. statements represent a set of terms applicable to U.S. conduct as a party to the Convention and are evidence of state practice. Furthermore, the provisions serve as a comprehensive compilation of U.S. positions on the most critical areas of oceans policy reflected over the years in diplomatic communications and associated policy pronouncements concerning operations by the armed forces of the Coast Guard and the Department of Defense. The statements also outline some of the more important conditions under which the United States will operate within the LOS Convention. In particular, the statements affect the conduct of air and sea exercises, operations, and intelligence activities of the armed forces, and reflect the continuing importance of global freedom of navigation and overflight of military, intelligence, and other public vessels and aircraft. Collectively, the statements affirm activities historically undertaken by the U.S. armed forces throughout the world’s oceans, and recognize that those operations are consistent with the rights and freedoms set forth in the Convention.27 The seven critical American understandings related to national security and the Law of the Sea Convention are identified below and discussed in detail throughout the remainder of this article.
- Military activities. The U.S. maintains the exclusive right, as a state party to determine whether activities it conducts at sea constitute “military activities,” and therefore are, at the election of the United States, exempt from the provisions concerning mandatory dispute resolution under the terms of the Treaty.28
- Peaceful purposes. The U.S. maintains that the Treaty wording “the seas shall be reserved for peaceful purposes” does not create new rights for coastal states or third countries, or generate any new obligations on behalf of naval powers.29
- Innocent passage. In accordance with Article 19 of the LOS Convention, coastal states may not restrict innocent passage based on cargo, means of propulsion, destination, purpose, or flag.30
- Transit and archipelagic sea-lanes passage. Military vessels and aircraft in their normal mode have the right of transit passage through straits used for international navigation and archipelagic sea-lanes passage through archipelagic sea-lanes and other normal routes normally used for international navigation, and coastal states may not restrict such passage.31
- Exclusive economic zone. Restrictions or requirements for prior consent or notification to operate military vessels or aircraft in the exclusive economic zone (EEZ) are inconsistent with the Convention.32
- Hydrographic and military surveys. Coastal states are not authorized to regulate hydrographic or military surveys in the EEZ, as these activities are separate and distinct from marine scientific research (MSR), which requires coastal state consent.33
- Excessive claims.The United States will continue to oppose excessive coastal state maritime claims, continuing to challenge or protest such claims through bilateral and multilateral and diplomatic forums and demarches, military-to-military engagement, and operational assertions by the air and sea forces of the Navy and Air Force.34