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 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.