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.
[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.
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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
The opponents' second claim is that the treaty would prevent the U.S. Navy from undertaking unilateral action, such as collecting intelligence in the Asia-Pacific region, because permission to do so is not explicitly granted in the text. According to Admiral Samuel Locklear, commander of U.S. Pacific Command, however, "The convention in no way restricts our ability or legal right to conduct military activities in the maritime domain." On the contrary, as U.S. Defense Secretary Leon Panetta put it, U.S. accession to the convention "secures our freedom of navigation and overflight rights as bedrock treaty law." Even so, critics point out, the ultimate indispensability of U.S. naval power means that the country can receive the benefits of the convention without being bound by it. Since the world seems to have functioned perfectly well in this halfway house for some time, it would make no sense to codify the convention now. It would be comforting if all that were true. It isn't.
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The 2002 National Security Strategy states that the United States' success in the Global War on Terrorism depends on the destruction and disruption of terrorist organizations by "Identify[ing] and destroying the threat before it reaches our borders."69 Clearly, the United States' ability to conduct intelligence activities effectively is crucial to the prevention of future terrorist activities.70 Thus, Article 19 of UNCLOS, which appears to have ramifications for intelligence activity is highly significant.71
The impact of UNCLOS on intelligence gathering activities hinges on the interpretation of Article 19(2)(c), namely what constitutes innocent passage through coastal states' territorial waters.72 According to proponents of UNCLOS, the Convention will not significantly impact the United States' intelligence gathering activities.73 Proponents will admit that intelligence gathering does not qualify for an innocent activity under Article 19(2)(c) and therefore does not entitle the vessel conducting intelligence activities to the benefits of innocent passage.74 But they note that intelligence activities are not specifically prohibited or regulated by the Convention.75
"National Security Implications in the Global War on Terrorism of the United States Accession to the United Nations Convention on the Law of the Sea
." Dartmouth Law Journal
. Vol. 7, No. 2 (2009): 117-131. [ More (9 quotes) ]
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Though national security remains a top U.S. priority, opponents of UNCLOS have overstated the degree to which the treaty would endanger that security. First, major concerns appear to stem from a misreading of articles 19 and 20.81 Additionally, the provisions at issue were negotiated with the input and consent of the U.S. intelligence community (including the National Security Council) and were approved by the Central Intelligence Agency and the Department of Defense.82 In fact, some of the strongest supporters of the treaty come from the intelligence community and the highest ranks of the U.S. military.83 As for the reliance upon customary international law to ensure permission for navigation by U.S. vessels, some commentators see this as a risky and costly alternative to ratification.84
Myth: The convention would interfere with the operations of our intelligence community. Having either chaired or participated in the 18-agency National Security Council interagency process that drafted the United States' negotiating instructions for the convention, we found this charge so bizarre that we recently checked with the intelligence community to see if we had missed something. The answer that came back was that they, too, were puzzled by this charge, as there was absolutely no truth to it. We are confident that there is no provision in the convention which will, if approved by the Senate, constrain the operations of our intelligence community. In this regard, the United States is already bound by the 1958 convention, and since 1983, pursuant to President Reagan's order, we have operated under the provisions of the 1982 convention, with the exception of deep seabed mining issues associated with Part XI.
"The Senate should give immediate advice and consent to the UN Convention on the Law of the Sea: why the critics are wrong.
." Journal of International Affairs
. Vol. 59, No. 1 (Fall/Winter 2005) [ More (18 quotes) ]
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It is also important to note that UNCLOS does not treat intelligence collection as a threat or use of force against the sovereignty, territorial integrity or political independence of the coastal state in violation of the U.N. Charter. Article 19(2)(c) clearly distinguishes collecting intelligence from "threat or use of force," which is discussed as a separate prohibited activity in Article 19(2)(a) for ships engaged in innocent passage. This issue was resolved by the Security Council in 1960 following the shoot down of a U.S. U-2 spy plane near Sverdlovsk, Russia. An effort by the Soviet Union to have the Security Council decide that the activity of the U.S. spy plane was an act of aggression was soundly defeated seven to two (with two abstentions), thereby reaffirming the legality of peacetime intelligence collection under the U.N. Charter.47 This view is shared by most experts.4
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The question has been raised whether the Convention (in particular articles 19 and 20) prohibits intelligence activities or submerged transit in the territorial sea of other States. It does not. The Convention’s provisions on innocent passage are very similar to article 14 in the 1958 Convention on the Territorial Sea and the Contiguous Zone, to which the United States is a party. (The 1982 Convention is in fact more favorable than the 1958 Convention both because the list of non-innocent activities is exhaustive and because it generally uses objective, rather than subjective, criteria in the listing of activities.) A ship does not, of course, enjoy the right of innocent passage if, in the case of a submarine, it navigates submerged or if, in the case of any ship, it engages in an act in the territorial sea aimed at collecting information to the prejudice of the defense or security of the coastal State, but such activities are not prohibited by the Convention. In this respect, the Convention makes no change in the situation that has existed for many years and under which we operate today.
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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.
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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.