U.S. ratification of UNCLOS will not threaten our intelligence operations
Opponents of U.S. ratification of UNCLOS have argued that U.S. intelligence operations will be complicated by UNCLOS because it will prevent U.S. submarines from gathering intelligence in territorial waters. However, these operations are already regulated by the existing 1958 convention which the U.S. ratified and expects other nations to abide by. Furthermore, the intelligence community has reviewed the treaty and concluded that it was still in U.S. interests to ratify the treaty.
Nothing in the Convention will affect the way we currently conduct surveillance and intelligence activities at sea. Opponents to the Convention argue that the Convention’s provisions on innocent passage – Articles 19 and 20 – will prohibit or otherwise adversely affect U.S. intelligence activities in foreign territorial seas at a time when such activity is vital to our national security. I can say without hesitation that nothing could be further from the truth.
While it is true that Article 19 provides that intelligence collection within the territorial sea is inconsistent with the innocent passage regime and that Article 20 provides that submarines must navigate on the surface when engaged in innocent passage, it’s a far stretch to thus conclude that the Convention prohibits intelligence collection and requires submarines to navigate on the surface when transiting the territorial sea. Nothing in Article 19 prohibits a U.S. vessel from engaging in intelligence activities in a foreign territorial sea. If a vessel does engage in such activities, it simply cannot claim that it is engaged in innocent passage. The same rule has applied for the past seven decades. Similarly, Article 20 does not prohibit submerged transits through the territorial sea, per se. Article 20 merely repeats the rule from the 1958 Convention on the Territorial Sea, a convention to which the United States is a party. The rule concerning submerged transits from the 1958 Convention has been the consistent position of nations, including the United States, for more than 70 years and it has never been interpreted as prohibiting or otherwise restricting intelligence collection activities or submerged transits in the territorial sea. In short, if or when the need arises to collect intelligence in a foreign territorial sea, nothing in the LOS Convention will prohibit that activity.
U.S. intelligence collection activities at sea are not constrained by the Convention. This matter was fully reviewed at closed hearings before the SSCI and SASC in 2004. At the unclassified level we can comment that those Committees concluded, after receiving testimony from DoD, CIA, and DoS, that the Convention does not affect US intelligence collection activities. Those agencies confirmed that testimony in recent correspondence to the SFRC. With regard to innocent passage, the United States already obligates itself to abide by articles 19 and 20 of the Convention, and we are already formally bound to the same obligations in the 1958 Territorial Sea Convention.
In the mid-1980s the Soviets had drawn a system of straight baselines in the Arctic Ocean. Segment 8-9 is a twenty-six mile line that enclosed Motovsky and Kola Bays. According to the military experts writing in press and magazine accounts, on February 11, 1992, USS Baton Rouge was lurking in what it thought to be international waters when it and a Sierra-class Russian submarine collided.25 In the ensuing diplomatic dispute, the U.S. Navy claimed that the collision occurred more than twelve miles from the "normal baseline," the shoreline, which placed it well within international waters. However, Russia claimed that the U.S. submarine was operating illegally while submerged within its territorial sea as measured from their claimed straight baseline.
Years later, when another Russian submarine, Kursk, sank under mysterious circumstances in the same general area, the Russian Navy immediately claimed that it was the fault of the United States, which had intelligence gathering submarines in the area monitoring the Russian exercises.26 If the United States and Russia were both Party to the Convention, we would likely be able to resolve the legality of this particular baseline segment and avoid such potential incendiary incidents. We continue to have similar disputes concerning excessive straight baseline claims with many other countries all over the world, including China, Iran, Colombia, and Vietnam.
The US-developed PSI is directed toward preventing the illicit transportation by ships of weapons of mass destruction, their delivery systems and related materials. Under the Law of the Sea Convention and customary international law, a number of jurisdictional bases exist for stopping and searching ships suspected of being engaged in some sort of illicit activity. These include jurisdiction exercised by a State with respect to ships flying its flag or within its territorial sea, ports or contiguous zone, and stateless vessels. It is also permissible to stop and search a foreign-flag vessel with the permission of the flag State. The PSI builds on this latter basis of jurisdiction with a series of bilateral agreements by which the United States and its treaty partners agree in advance on a set of orderly procedures for the reciprocal granting of permission for visits and search of suspected ships and cargoes. There is nothing in the Convention that would change the law in any respect with respect to the US practices under the Proliferation Security Initiative. Likewise, with respect to intelligence operations, the Law of the Sea Convention contains no restrictions on US naval surveillance and intelligence operations not already included in the 1958 Convention on the Territorial Sea and Contiguous Zone to which the United States is already a party.
WATKINS: I'll just pick up on one that's very special to me, and that's on intelligence. There was a Senate Select Committee hearing on this intelligence issue on law of the sea in 2004. And witnesses came from the CIA, from Defense, and they all confirmed that the U.S. intelligence plus submarine activities would not be impaired by this convention.
And so, again, the hearings have gone into detail across some of the questions you raised and the myths that are thrown out there by the opponents that somehow this is going to do great damage. And you know, when our P-3 was very closely monitored by the People's Republic of China a few years ago, one of the things we were accused of is getting intelligence over international waters with our air phones headed towards China mainland. And we were sitting there as non-members of the Law of the Sea Convention and would have weak grounds on which to base -- we would have good grounds on which to base it, but whether they would be listened to was questionable.
So again, intelligence is not only gathering information in national waters but also international. So the whole issue of intelligence gathering is another one of these myths that's thrown out there that we're going to lose our ability to do what we have to do to be number one in our national security efforts through good intelligence gathering. So I think that that is, again, one thing that's thrown up there in the air that has no basis whatsoever.
Critics seem to overlook the fact that Articles 17 to 32 of the Convention address only the right of innocent passage. The preamble makes clear what would be true in any event: “matters not regulated by this Convention continue to be governed by the rules and principles of general international law.” Suffice it to say that the matters not regulated by the Convention include the right of self-defense, the international law of armed conflict, and the complex (and for understandable reasons, rarely discussed) questions regarding the practice of states with regard to covert intelligence activities in each others’ territory.
Myth: The Convention would prohibit or impair U.S. intelligence and submarine activities.
Reality: The Convention does not prohibit or impair intelligence or submarine activities. Joining the Convention would not affect the conduct of intelligence activities in any way. This issue was the subject of extensive hearings in 2004 before the Senate Select Committee on Intelligence. Witnesses from Defense, CIA, and State all confirmed that U.S. intelligence and submarine activities are not adversely affected by the Convention.
We follow the navigational provisions of the Convention today and are not adversely affected; similarly, we would not be adversely affected by joining.
[MYTH] The Convention, specifically articles 19 and 20, prohibit two functions vital to American security: collecting intelligence in, and submerged transit of, territorial waters.
- This assertion is not correct.
- The Convention does not prohibit U.S. intelligence activities, nor would it have any negative effect on those activities.
- In the 1958 Convention, Article 14 provides that passage is innocent “so long as it is not prejudicial to the peace, good order or security of the coastal State” and that “submarines are required to navigate on the surface and to show their flag.”
- The United States is already a party to the 1958 Territorial Sea Convention, which contains provisions very similar to articles 19 and 20 of the 1982 Convention.
- The 1982 Convention’s specification of activities that are considered to be “prejudicial to the peace, good order, or security of the coastal State” are more favorable than the provisions of the 1958 Convention both because the list of activities is exhaustive and because it generally uses objective, rather than subjective, criteria in the listing of activities.
- Since President Reagan’s 1983 Oceans Policy Statement, the United States has conducted its activities consistent with the non-deep seabed provisions of the 1982 Convention.
- U.S. accession to the Convention supports ongoing U.S. military operations, including the continued prosecution of the war on terrorism.
The specific argument that the convention would pre- vent the U.S. 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 flags when engaged in innocent passage. This is correct, so far as it goes. But the minority report then concludes that this would not especially during the Cold War—in gathering intelligence close to foreign shorelines.
What the minority report and other critics fail to men- tion 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.15 Moreover, the collection of intelligence in any guise within the territorial sea does not fall within the ambit of innocent passage. The United States would never accept foreign submarines or foreign warships engaging in intelligence-gathering operations in the ter- ritorial sea off of San Diego or Norfolk. Indeed, when President Reagan signed a proclamation extending the U.S. territorial sea to 12 nautical miles 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.16
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, at the time of this writing, 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.17