Ratification of the Law of the Sea Treaty: A Not-So-Innocent Passage
"This analysis of the Law of the Sea Treaty will focus on the threats to political independence, particularly as they relate to environmental policy, and to threats to security."
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.
Nations have already attempted to use the Law of the Sea Treaty's environmental provisions to affect the environmental policies of others. In 1999, Australia and New Zealand appealed to the International Tribunal of the Law of the Sea (ITLOS) to shut down Japan's experimental southern blue fin tuna fishing program, citing Articles 64 and 116-119. Although the Tribunal ultimately decided that it lacked jurisdiction in the case, Australia and New Zealand did gain a temporary injunction on the program.36 More recently, Ireland sought ITLOS's help in forcing the United Kingdom to abandon its planned opening of the Sellafield MOX plant, a nuclear fuel reprocessing plant in northern eastern England, arguing that it would contribute to pollution of the North Sea. Although ITLOS did not rule in Ireland's favor, it ordered both Ireland and the United Kingdom to enter into consultations.37