U.S. adherence to UNCLOS would jeopardize maritime intelligence gathering operations
Under the convention, the United States assumes a number of obligations at odds with its military practices and national security interests, including a commitment not to collect intelligence. The U.S. would sign away its ability to collect intelligence vital for American security within the “territorial waters” of any other country (Article 19). Further- more, U.S. submarines would be required to travel on the surface and show their flags while sailing within territorial waters (Article 20).
Nor is there much consolation in the prospect of appealing to ITLOS against the seizure of an American ship, since the most vulnerable American ships would be small craft, gathering intelligence near the coasts of unfriendly states. UNCLOS couples transit rights with provisions for national regulatory measures in coastal waters, including the right of the coastal state to prohibit intelligence gathering in these waters. Suppose an American ship were seized outside the territorial waters of a hostile state, on the claim that it had earlier traversed these waters for illicit purposes and then been pursued into “contiguous” waters—as UNCLOS allows, for a belt of water extending twelve nautical miles beyond the twelve mile reach of “territorial waters.”5 The United States being required to document for ITLOS exactly what its ship was doing in exactly which waters could very well compromise sensitive U.S. intelligence gathering operations.
Under the convention, the United States assumes a number of obligations at odds with its military practices and national security interests, including a commitment not to collect intelligence. The U.S. would sign away its ability to collect intelligence vital for American security within the “territorial waters” of any other country (Article 19). Further- more, U.S. submarines would be required to travel on the surface and show their flags while sailing within territorial waters (Article 20). This would apply, for example, to U.S. submarines maneuvering in Iranian or North Korean territorial waters; they would be required to sail on the surface with their flags waving.
Advocates of the treaty also argue that Law of the Sea Treaty merely maintains the status quo for submarines passing through territorial waters because the United States is already a party to the 1958 Convention on the Territorial Sea and the Contiguous Zone which, they contend, contains similar language.11 U.S. submarines have traversed territorial waters while submerged over the past 48 years, they say, largely unaffected by the Territorial Sea Convention's surfacing requirement.
Where submarines are concerned, they appear to be correct.
But Article 20 also adds something completely new: The requirement that "other underwater vehicles" navigate on the surface.12 The surfacing requirement would thus presumably apply to Autonomous Underwater Vehicles (AUVs) and Remotely Operated Underwater Vehicles (ROVs), among others (including, presumably, the next generation of such vessels) for the first time.
AUVs, unmanned underwater drones, and ROVs, underwater vehicles controlled by operators at the surface, have numerous military applications, including mine detection and neutralization, surveillance and inspection of underwater installations and topography, among others.13
Some of these activities are otherwise consistent with the Law of the Sea Treaty's definition of "innocent passage." An AUV or ROV used to detect mines to protect a ship exercising its right of innocent passage, for example, appears to meet the requirement that it engage only in activities with "direct bearing on passage." But because these vehicles must be submerged to be used effectively they would be considered "prejudicial to the peace, good order and security of the state" by doing so, even though advancing the peace, good order and security is precisely the purpose for which they would be used.
If the U.S. ratifies the Law of the Sea Treaty, the use of AUVs and ROVs for these and other purposes could be reduced.
Assertion #3: U.S. participation in UNCLOS will not undermine intelligence operations. Fact: It is impossible to confirm this assertion because the relevant intelligence activities are classified. It is clear, however, that U.S. participation in UNCLOS is unlikely to facilitate U.S. intelligence activities. For example, a coastal state may demand that all submarines entering its exclusive economic zone surface and identify themselves. Even if the U.S. were a party to the treaty, the Navy would not invoke UNCLOS to justify its presence in these waters when it engages in intelligence operations. Instead, it would simply ignore the demand and avoid being caught. On this basis, it is unclear how the U.S. intelligence community would suffer by not joining the treaty.
Most obviously, and possibly what President Reagan's advisors had in mind, coastal states' rights under UNCLOS include the so-called "Pueblo clause." It says that it is not "innocent passage" for any foreign ship in the twelve-mile territorial sea to perform "any act aimed at collecting information to the prejudice of the defense or security of the coastal state" (article 19.c). But American naval vessels underway routinely take soundings and keep their radio receivers turned on, and any coastal state can claim that receiving information about the approaches to a harbor or the configuration of a coast is prejudicial to its security. Although it is possible with some ingenuity to argue that the provision does not mean what it says, foreign states are not bound by the ingenuity of American lawyers. And other provisions of the same article, like the clause forbidding "research or survey activities" (article 19.j) also contain undefined terms that can be interpreted to end American naval rights of passage. Indeed, it is also forbidden to undertake "any other activity not having a direct bearing on passage" (article 19.1). I have never understood how the United States negotiators could accept this language.