Article 19
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A Russian spy ship spotted about 70 miles off the coast of Delaware on Tuesday has begun "loitering" 30 miles from a US Navy submarine base in Connecticut. The U.S. Navy has responded that they are aware of its presence but respect its right to be there, even for intelligence gathering purposes, as within the freedom of navigation rights shared by all nations and that the U.S. frequently employs.
[ More ]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
[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 Law of the Sea Treaty’s compulsory dispute resolution requirements and procedures are particularly problematic when taken together with a number of obligations the accord entails that are at odds with our military practices and national interests. These include commitments that:
- Reserve the oceans exclusively for “peaceful purposes” (Article 88): The United States routinely uses the world’s oceans for military purposes, including waging war against our enemies.
- Require states to refrain from “the threat or use of force against the territorial integrity or political independence of any state” (Article 301): As the world’s preeminent maritime nation, America must project power from the sea and does so with some regularity. Some would describe such power projection as contrary to “the territorial integrity or political independence” of states (most recently, for example, attacks from naval forces against the Taliban’s Afghanistan and Saddam Hussein’s Iraq).
- Proscribe the use of territorial waters to collect intelligence and conduct other operations (Article 19): For many decades, intelligence vital for American security has been collected on, below and above the oceans – including, in some cases, those considered to be “territorial waters.”
- Oblige submarines to travel on the surface and show their flags in territorial waters (Article 20). The effectiveness and perhaps the very survival of our submarines would be compromised were they to have to operate on the surface in close-in waters where they can only go with the greatest of stealth.
- Bar any maritime research except that conducted for peaceful purposes and require the coastal state’s permission for that performed in territorial waters (Article 240). Classified oceans research, including some conducted covertly, is indispensable to the U.S. Navy’s mission.
In statements in support of LOST, the United States military makes clear that it has no intention of ending such activities, and insists that it will not have to do so since “military activities” are exempted from the Treaty’s dispute resolution mechanisms. Unfortunately, this position both defies common sense and hard experience with international accords: These articles are wholly without effect if they do not apply to the military and it is predictable that America’s foes will use every opportunity afforded by LOST to ensure they do.
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.