Military Activities Exemption
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Statements made by states to the LOS Convention have a high degree of importance because Article 309 of the Treaty bars state parties from making reservations. State parties may not except out undesirable language or provisions, as that would undermine the nature of the Convention as a package deal.23 Although states may not make reservations or exceptions when signing, ratifying, or acceding to the Treaty, they may provide statements with a view toward harmonizing their domestic laws and regulations with the Convention.24 Article 310 of the Convention provides authority for a state party, at the time of signature, ratification, or accession, or at any time thereafter, to make declarations and statements, provided such statements do not purport to exclude or to modify the legal effect of the provisions of the Convention. One hundred nineteen states have made such statements, including 33 that have done so upon signature, 60 states that have done so at the time of ratification or accession, and 16 more states that have done so at a later date.25
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The proposed U.S. statements represent a set of terms applicable to U.S. conduct as a party to the Convention and are evidence of state practice. Furthermore, the provisions serve as a comprehensive compilation of U.S. positions on the most critical areas of oceans policy reflected over the years in diplomatic communications and associated policy pronouncements concerning operations by the armed forces of the Coast Guard and the Department of Defense. The statements also outline some of the more important conditions under which the United States will operate within the LOS Convention. In particular, the statements affect the conduct of air and sea exercises, operations, and intelligence activities of the armed forces, and reflect the continuing importance of global freedom of navigation and overflight of military, intelligence, and other public vessels and aircraft. Collectively, the statements affirm activities historically undertaken by the U.S. armed forces throughout the world’s oceans, and recognize that those operations are consistent with the rights and freedoms set forth in the Convention.27 The seven critical American understandings related to national security and the Law of the Sea Convention are identified below and discussed in detail throughout the remainder of this article.
- Military activities. The U.S. maintains the exclusive right, as a state party to determine whether activities it conducts at sea constitute “military activities,” and therefore are, at the election of the United States, exempt from the provisions concerning mandatory dispute resolution under the terms of the Treaty.28
- Peaceful purposes. The U.S. maintains that the Treaty wording “the seas shall be reserved for peaceful purposes” does not create new rights for coastal states or third countries, or generate any new obligations on behalf of naval powers.29
- Innocent passage. In accordance with Article 19 of the LOS Convention, coastal states may not restrict innocent passage based on cargo, means of propulsion, destination, purpose, or flag.30
- Transit and archipelagic sea-lanes passage. Military vessels and aircraft in their normal mode have the right of transit passage through straits used for international navigation and archipelagic sea-lanes passage through archipelagic sea-lanes and other normal routes normally used for international navigation, and coastal states may not restrict such passage.31
- Exclusive economic zone. Restrictions or requirements for prior consent or notification to operate military vessels or aircraft in the exclusive economic zone (EEZ) are inconsistent with the Convention.32
- Hydrographic and military surveys. Coastal states are not authorized to regulate hydrographic or military surveys in the EEZ, as these activities are separate and distinct from marine scientific research (MSR), which requires coastal state consent.33
- Excessive claims.The United States will continue to oppose excessive coastal state maritime claims, continuing to challenge or protest such claims through bilateral and multilateral and diplomatic forums and demarches, military-to-military engagement, and operational assertions by the air and sea forces of the Navy and Air Force.34
Most influential, though, may be support from the U.S. Navy, which is enamored of the treaty's guarantee of navigational freedom. Not that such freedom is threatened now: The Russian navy is rusting in port, China has yet to develop a blue water capability, and no country is impeding U.S. transit, commercial or military.
At the same time, some ambiguous provisions may impinge on freedoms U.S. shipping now enjoys. In Senate testimony last fall, State Department legal adviser William H. Taft IV noted the importance of conditioning acceptance "upon the understanding that each Party has the exclusive right to determine which of its activities are 'military activities' and that such determination is not subject to review." Whether other members will respect that claim is not at all certain. Admiral Michael G. Mullen, the vice chief of naval operations, acknowledges the possibility that a Law of the Sea tribunal could rule adversely and harm U.S. "operational planning and activities, and our security."
Will accession subject the U.S. military to the jurisdiction of international courts? Again, the answer is no. The Convention specifically permits nations to exempt from international dispute resolution, “disputes concerning military activities, including military activities by government vessels and aircraft.” State Parties individually determine what constitute “military activities.” Current and former leadership within the U.S. government have given repeated assurances that the United States would take full advantage of this clause in its accession documents to exempt U.S. military activities and protect them from the jurisdiction of international courts and tribunals. In fact, this is specifically outlined in this Committee’s Draft Resolution of Advice and Consent of 2007 and continues to be supported by the current Administration.
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Finally, the United States should not ratify the UNCLOS Convention until the ambiguities regarding warship innocent passage rights and military operations in the EEZ are resolved. This is commonly referred to as the “military activities” exemption.59 President Reagan’s Executive Order made it U.S. policy to abide by the great majority of the Treaty, especially those sections germane to ship and aircraft navigation. The U.S. is therefore already in functional compliance. A case could even be made that the international acceptance of the Treaty -- even by those nations who have not ratified it -- has given the Treaty the force of international law.60
It is apparent that China does not intend to abide by the letter of the law -- at least not when it does not suit its purposes. Therefore, the U.S. must level the playing field in order to work through the issues. Ratifying the UNCLOS Treaty may actually take away the very flexibility that PACOM needs in dealing with China. Were the U.S. to ratify the Treaty tomorrow, the problems discussed in this paper would persist, but PACOM would have fewer “legal” options available under international law in order to respond to China’s excessive claims and provocations.
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Aside from dispute settlement, states could gain clarity regarding military activity in the EEZ from bilateral or regional arrangements. Such dialogue could promote clarity and potentially help preempt conflict.96 For instance, the former Soviet Union and the United States adopted a ‘Joint Statement’ providing for uniform interpretation of the right of innocent passage in the territorial sea.97 In the East China Sea, China and Japan have developed bilateral regimes for ‘conflict avoidance’ regarding fisheries and marine scientific research.98 These agreements may not resolve every issue, but they do certainly offer more clarity and could provide mechanisms to deal with situations where the law is uncertain. Another option would be to form regional agreements. In the 1990s, Indonesia used Association of Southeast Asian Nations as a venue for hosting informal talks aimed at conflict resolution and management in the South China Sea.99 Thus, individual states as well as regional organizations may have a role in clarifying the legality of military operations in the EEZ. There is the risk of regional diversification in state practice and interpretation; nevertheless, such arrangements could contribute to increased certainty regarding military uses of the oceans. These multi-state dialogues are particularly crucial at the moment as tensions continue to escalate in the South China Sea region.100
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Since UNCLOS is meant to be a comprehensive ‘package deal’, states may not make reservations or exceptions to the Convention.48 Otherwise, parties to the treaty could effectively opt out of their convention obligations.49 Under Article 310, States retain the right to make declarations, though such statements are illegitimate if they ‘purport to exclude or to modify the legal effect of the provisions of this Convention in their application to that State.’50 Some states have exercised their Article 310 right by making declarations on the issue of military activities in the EEZ.51 For instance, Brazil, Bangladesh, Cape Verde, Malaysia, India, and Pakistan have all expressed concern over the ability of foreign military vessels to engage in certain activities within the EEZ.52 In their declarations, these states require consent before a foreign ship may conduct military activities.53 To illustrate, Brazil declared in 1988:
The Brazilian Government understands that the provisions of the Convention do not authorize other States to carry out military exercises or manoeuvres, in particular those involving the use of weapons or explosives, in the exclusive economic zone without the consent of the coastal State.54
States such as Italy, Germany, the Netherlands and the United Kingdom have protested these interpretations as unduly restrictive on navigational freedoms and as inconsistent with Article 310 and UNCLOS.55 For example, the Netherlands declared in 1996:
The Convention does not authorize the coastal State to prohibit military exercises in its exclusive economic zone. The rights of the coastal State in its exclusive economic zone are listed in article 56 of the Convention, and no such authority is given to the coastal State. In the exclusive economic zone all States enjoy the freedoms of navigation and overflight, subject to the relevant provisions of the Convention.56
These declarations demonstrate the sharp disagreement and variance in interpretation regarding the legality of conducting military activities in the EEZ of another country.57
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Since the conclusion of UNCLOS in 1982, the general concept of an EEZ and the right for a coastal state to exercise sovereign rights over economic activity and resources have become customary international law.41 However, as a relatively new concept in international law, the specific scope of rights and responsibilities in the EEZ is dynamic and ever-evolving.42 UNCLOS does not clarify the specific issue of military activities in the EEZ and a major source of contention continues to be whether maritime states may unilaterally conduct certain military operations in the EEZ of the coastal state without permission.43 Some maritime powers support unfettered military activity in the EEZ by emphasizing the freedom of navigation.44 Conversely, some coastal states object to military activity in their EEZ by expressing concern for their national security and their resource sovereignty.45 This divergence in perspective regarding the legality of foreign military activities in the EEZ is partly due to varying interpretations of Article 58, which permits maritime states to engage in ‘other internationally lawful uses of the sea related to these freedoms, such as those associated with the operation of ships, aircraft and submarine cables and pipelines, and compatible with the other provisions of this Convention.’46 Thus, nations such as the United States perceive this provision to permit naval operations in the EEZ as an activity ‘associated with the operation of ships’ and more generally, as protected within the scope of the freedom of navigation.47
Equally flawed is the proponents’ insistence that Law of the Sea Treaty tribunals will be unable to interfere with U.S. military activities. Although LOST exempts “disputes concerning military activities” from the purview of its dispute resolution mechanisms, the Treaty does not define “military activities.”
Proponents of LOST argue that the United States can make a declaration that it will define “military activities” for itself. However, this amounts to a reservation to the treaty, which is expressly prohibited by LOST. LOST must be accepted or rejected in its entirety. Furthermore, if the U.S. military were allowed to make such a unilateral determination under LOST, the militaries of other nations would exercise the same option, creating an anarchic situation that would defeat the purposes of LOST altogether. LOST was clearly not intended to allow this to happen.
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The Senate can ensure that international tribunals do not gain jurisdiction over our military activities when we join this Convention. In 2003, the Administration worked closely with the Committee to develop a proposed Resolution of Advice and Consent --- which we continue to support --- that contains a declaration regarding choice of procedure for dispute resolution. The United States rejected the International Court of Justice and the International Tribunal for the Law of the Sea and instead chose arbitration. That choice-of-procedure election is expressly provided for in the Convention itself. In addition, and again in accordance with the express terms of the Convention, the draft Resolution of Advice and Consent completely removes our military activities from the dispute resolution process. Furthermore, each State Party, including the United States, has the exclusive right to determine which of its activities constitutes a military activity, and that determination is not subject to review.
The United States, as authorized by Article 298, would exempt “military activities” from compulsory dispute resolution. Under the Convention, a state party has the exclusive right to determine what constitutes a “military activity.” The U.S. declaration states: