- Email: [email protected]
Introduction: military and intelligence gathering activities in the exclusive economic zones: consensus and disagreement II
ARTICLE IN PRESS
Marine Policy 29 (2005) 97–99 www.elsevier.com/locate/marpol
Editorial
Introduction: military and intelligence gathering activities in the exclusive economic zones: consensus and disagreement II$ Abstract Maritime issues have risen to the forefront of current security concerns. In particular, military and intelligence gathering activities in foreign exclusive economic zones (EEZ) remain controversial. Exacerbating factors include advancing military and intelligence technology, a growing dialectic between coastal States and maritime powers, and new threats like terrorism and weapons of mass destruction. The Honolulu Meeting was part of a Dialogue series on these issues. Topics covered included a summary of the Tokyo Meeting; recent incidents and developments; different perspectives; the proliferation security initiative; implications for the EEZ regime; key terms: range of interpretation; hydrographic surveys and scientific research: differences, overlaps and implications; draft guidelines for military and intelligence gathering in the EEZ; means and manner of implementation and enforcement of any agreed rules; and conclusions and the way forward. r 2004 Elsevier Ltd. All rights reserved. Keywords: EEZ; Military and intelligence gathering activities; Dialogue
Over the past three decades, multilateral discussions concerning the Law of the Sea, and publicization of the importance of marine resources and uses, as well as their fragility and limits, have contributed to an increased ‘marine awareness’ and consequent widespread claims to maritime space by many of the world’s nations [1]. The United Nations Convention on the Law of the Sea (1982 UNCLOS) came into effect on 16 November 1994, 1 year after the last of the requisite 60 signatories had ratified it [2]. The Convention changed considerably the rules of international law relating to the boundaries of the continental shelf and to movement through international straits and archipelagoes. It created the exclusive economic zone (EEZ) and developed new principles relating to scientific research and the protection of the marine environment. Its plethora of rights and responsibilities in the ocean is now international law for those nations which have ratified it, including, all nations in and active in East Asia, except for North Korea and the United States. Regardless of whether the United States ever ratifies the Treaty, it argues that many of its provisions have already become customary international law. Among these provisions are the rights to national jurisdiction over resources and certain activities extending 200 $ Part of this introduction is the same as that in M. J. Valencia, Introduction, Marine Policy, January 2004; 28 (1): 3–5.
0308-597X/$ - see front matter r 2004 Elsevier Ltd. All rights reserved. doi:10.1016/j.marpol.2004.08.002
nautical miles (nm) from coastal baselines. Scientific and technological advances have stimulated almost all coastal countries to claim such EEZs. Indeed, because of the sea ‘rush’ atmosphere which surrounds the exploitation of maritime resources, jurisdictional claims have even tended to ‘creep’ beyond, or develop at variance with the provisions of the Treaty. In response, the past few decades have witnessed the emergence of a vast array of regional arrangements and institutions dealing with all aspects of ocean management. The level of cooperation ranges from minimal dispute avoidance mechanisms to relatively comprehensive ocean governance at the regional level. However, there often seem to be more examples of the appearance of such cooperative action than its reality. Meanwhile, maritime issues have risen to the forefront of current regional security concerns [3]. The 1982 UNCLOS has introduced new uncertainties and conflict points into the region, particularly, in regard to EEZs and continental shelf claims and boundaries. Many emerging regional security concerns such as piracy, pollution from oil spills, safety of sea lines of communication, illegal fishing and exploitation of others offshore resources are essentially maritime. The inclusion of issues like environmental protection, illegal activities at sea, and resource management and protection will necessitate acceptance of broader responsibilities and different priorities by military authorities, both
ARTICLE IN PRESS 98
Editorial / Marine Policy 29 (2005) 97–99
for force structure development and for their operations and training [4]. Together with the requirements for defense selfreliance and force modernization, these concerns are reflected in the significant maritime dimension of the current arms acquisition programs in the region: maritime surveillance and intelligence collection systems, multi-role fighter aircraft with maritime attack capabilities, modern surface combatants, submarines, anti-ship missiles, naval electronic warfare systems, and mine warfare capabilities. Because some of these new systems have offensive capabilities, they can be seen as provocative, and thus destabilizing, by those countries that do not have them or lack the means to acquire them. Possession of these systems undoubtedly increases the risk of inadvertent escalation in time of conflict. It is therefore particularly important that mechanisms be instituted to address particularly troubling maritime issues. This is especially so for military and intelligence gathering activities. There are several factors at play, which bring this set of issues to the fore. First, military activities in the EEZ were a controversial issue during the negotiations of the text of the 1982 UNCLOS and continue to be so in the State practice. Some coastal States such as Bangladesh, Brazil, Cape Verde, Malaysia, Pakistan and Uruguay contend that other States cannot carry out military exercises or maneuvers in or over their EEZ without their consent. Their concern is that such uninvited military activities could threaten their national security or undermine their resource sovereignty. Others specifically stated the opposite. Indeed, maritime powers such as the United States insist on the freedom of military activities in the EEZ out of concern that their naval and air access and mobility could be severely restricted by the global EEZ enclosure movement. Second, as technology advances, misunderstandings regarding military and intelligence gathering activities in foreign EEZs are bound to increase. There have been vast improvements in the range and accuracy of both weaponry and intelligence collection including Aegis, satellites, submarines, aircraft carriers, missiles, and over-the-horizon weaponry. Indeed, some argue that technology has so dramatically changed the art of warfare and intelligence gathering that extending restrictions in the EEZ to constrain military and intelligence gathering will be largely ineffective. However, there are still some distinct advantages in being able to operate in and over foreign EEZs, such as showing the flag, testing the response of the coastal State, or gathering certain types of signal intelligence, and thus maritime powers will most likely continue to resist any restrictions on such activities. Third, it seems that there is some confusion and even double standards regarding this regime, and stark differences of opinion abound.
Fourth, there is a growing dialectic between coastal States and maritime powers. Military and intelligence gathering activities by foreign nations in or over others EEZs are becoming more frequent due to the accelerating pace of globalization; the tremendous increase in world trade; the rise in the size and quality of the navies of many nations; and technological advances that allow navies to better utilize oceanic areas. Other conflicts result from the increasing scarcity of resources, the growing threat to the marine environment, and concerns with safety of sealanes. At the same time, coastal States are placing increasing importance on control of their EEZs. Of the 1700 warships expected to be built during the next few years, a majority will be smaller, coastal patrol vessels and corvettes, suggesting even further coastal State emphasis on control of their EEZs. Fifth, the end of the Cold War and the new threats of today like weapons of mass destruction and smuggling of drugs and humans further encourage both coastal and maritime States to extend their control or surveillance beyond their territorial seas, in some cases to others EEZs. Certainly in the aftermath of 11 September 2001, many nations, and the United States in particular, have increased their scrutiny of both military and commercial aircraft and ships approaching from near and far. Sixth, given the myriad boundary disputes and overlapping claims it is not always clear where one nation’s jurisdiction ends and anothers begins. These developments imply that certain UNCLOS provisions formulated 25 years ago in a very different political and technological context must be reinterpreted in the light of these new circumstances. But what are the specific issues, and what, if any behavioral modifications are necessary and mutually acceptable? The purpose of this dialogue series is to answer these questions. The Honolulu Meeting was the third in a dialogue series focused on this topic. The next chapter is a summary of the second meeting in Tokyo. Topics covered there included a summary of the previous meeting in Bali, operational modalities and rules of engagement, US initiatives to enhance maritime security, intelligence collection operations and EEZs, options for resolving disagreements, conclusions, and the way forward. Chapter 3 reviews recent legal decisions, treaties, and State practice regarding freedom of navigation in the EEZ and concludes that this formerly sacrosanct principle is being actually being eroded. The meaning of terms in the 1982 UNCLOS is key to the EEZ regime for military and intelligence gathering activities. Chapter 5 reviews the meanings of these terms in light of the negotiating history of the 1982 UNCLOS and concludes that some important terms are ambiguous, and moreover, that their meaning may change with time and technological advances. Indeed, there are a range of views regarding such terms, depending to some degree on a country’s national security interest. This chapter is
ARTICLE IN PRESS Editorial / Marine Policy 29 (2005) 97–99
followed by perspectives from China, India, Russia and the Republic of Korea. A critical issue for maritime powers like the United States is the right to undertake military and hydrographic surveys in foreign EEZs. Chapter 6 reviews differences and overlaps between hydrographic surveying and marine scientific research in the EEZ. It concludes that hydrographic surveying (but not military surveying) should be under a consent regime, and offers some guidelines for its conduct. Chapter 7 builds on the Dialogue to date by suggesting some guidelines for the conduct of military and intelligence gathering activities in the EEZ and the means and manner of their implementation. Perspectives on proposed guidelines range from serious reservations to support for the concept as a confidence building measure. The last chapter provides a summary of the volume and its major conclusions, and suggests the way forward.
99
References [1] Valencia MJ. A Maritime Regime for North–East Asia. Hong Kong: Oxford University Press; 1996. pp. 46–47. [2] Congressional Record, Proceedings and Debates of the 103rd Congress, Second Session, 140, 86, (30 June 1994). [3] Ball D. A new era in confidence building: the second-track process in the Asia/Pacific region. Security Dialogue 1994;25(2):164. [4] McCaffrie J, Bateman S, Maritime confidence and security building measures in Asia-Pacific: challenges, prospects and policy implications. Paper presented to the First Meeting of the CSCAP Working Group on Maritime Co-operation, Kuala Lumpur, June 1995, pp. 1,5,11.
M.J. Valencia Maritime Policy Expert, 47-511 Hio Place, Kaneohe, Hawaii 96744, USA E-mail address: [email protected]
Marine Policy 29 (2005) 97–99 www.elsevier.com/locate/marpol
Editorial
Introduction: military and intelligence gathering activities in the exclusive economic zones: consensus and disagreement II$ Abstract Maritime issues have risen to the forefront of current security concerns. In particular, military and intelligence gathering activities in foreign exclusive economic zones (EEZ) remain controversial. Exacerbating factors include advancing military and intelligence technology, a growing dialectic between coastal States and maritime powers, and new threats like terrorism and weapons of mass destruction. The Honolulu Meeting was part of a Dialogue series on these issues. Topics covered included a summary of the Tokyo Meeting; recent incidents and developments; different perspectives; the proliferation security initiative; implications for the EEZ regime; key terms: range of interpretation; hydrographic surveys and scientific research: differences, overlaps and implications; draft guidelines for military and intelligence gathering in the EEZ; means and manner of implementation and enforcement of any agreed rules; and conclusions and the way forward. r 2004 Elsevier Ltd. All rights reserved. Keywords: EEZ; Military and intelligence gathering activities; Dialogue
Over the past three decades, multilateral discussions concerning the Law of the Sea, and publicization of the importance of marine resources and uses, as well as their fragility and limits, have contributed to an increased ‘marine awareness’ and consequent widespread claims to maritime space by many of the world’s nations [1]. The United Nations Convention on the Law of the Sea (1982 UNCLOS) came into effect on 16 November 1994, 1 year after the last of the requisite 60 signatories had ratified it [2]. The Convention changed considerably the rules of international law relating to the boundaries of the continental shelf and to movement through international straits and archipelagoes. It created the exclusive economic zone (EEZ) and developed new principles relating to scientific research and the protection of the marine environment. Its plethora of rights and responsibilities in the ocean is now international law for those nations which have ratified it, including, all nations in and active in East Asia, except for North Korea and the United States. Regardless of whether the United States ever ratifies the Treaty, it argues that many of its provisions have already become customary international law. Among these provisions are the rights to national jurisdiction over resources and certain activities extending 200 $ Part of this introduction is the same as that in M. J. Valencia, Introduction, Marine Policy, January 2004; 28 (1): 3–5.
0308-597X/$ - see front matter r 2004 Elsevier Ltd. All rights reserved. doi:10.1016/j.marpol.2004.08.002
nautical miles (nm) from coastal baselines. Scientific and technological advances have stimulated almost all coastal countries to claim such EEZs. Indeed, because of the sea ‘rush’ atmosphere which surrounds the exploitation of maritime resources, jurisdictional claims have even tended to ‘creep’ beyond, or develop at variance with the provisions of the Treaty. In response, the past few decades have witnessed the emergence of a vast array of regional arrangements and institutions dealing with all aspects of ocean management. The level of cooperation ranges from minimal dispute avoidance mechanisms to relatively comprehensive ocean governance at the regional level. However, there often seem to be more examples of the appearance of such cooperative action than its reality. Meanwhile, maritime issues have risen to the forefront of current regional security concerns [3]. The 1982 UNCLOS has introduced new uncertainties and conflict points into the region, particularly, in regard to EEZs and continental shelf claims and boundaries. Many emerging regional security concerns such as piracy, pollution from oil spills, safety of sea lines of communication, illegal fishing and exploitation of others offshore resources are essentially maritime. The inclusion of issues like environmental protection, illegal activities at sea, and resource management and protection will necessitate acceptance of broader responsibilities and different priorities by military authorities, both
ARTICLE IN PRESS 98
Editorial / Marine Policy 29 (2005) 97–99
for force structure development and for their operations and training [4]. Together with the requirements for defense selfreliance and force modernization, these concerns are reflected in the significant maritime dimension of the current arms acquisition programs in the region: maritime surveillance and intelligence collection systems, multi-role fighter aircraft with maritime attack capabilities, modern surface combatants, submarines, anti-ship missiles, naval electronic warfare systems, and mine warfare capabilities. Because some of these new systems have offensive capabilities, they can be seen as provocative, and thus destabilizing, by those countries that do not have them or lack the means to acquire them. Possession of these systems undoubtedly increases the risk of inadvertent escalation in time of conflict. It is therefore particularly important that mechanisms be instituted to address particularly troubling maritime issues. This is especially so for military and intelligence gathering activities. There are several factors at play, which bring this set of issues to the fore. First, military activities in the EEZ were a controversial issue during the negotiations of the text of the 1982 UNCLOS and continue to be so in the State practice. Some coastal States such as Bangladesh, Brazil, Cape Verde, Malaysia, Pakistan and Uruguay contend that other States cannot carry out military exercises or maneuvers in or over their EEZ without their consent. Their concern is that such uninvited military activities could threaten their national security or undermine their resource sovereignty. Others specifically stated the opposite. Indeed, maritime powers such as the United States insist on the freedom of military activities in the EEZ out of concern that their naval and air access and mobility could be severely restricted by the global EEZ enclosure movement. Second, as technology advances, misunderstandings regarding military and intelligence gathering activities in foreign EEZs are bound to increase. There have been vast improvements in the range and accuracy of both weaponry and intelligence collection including Aegis, satellites, submarines, aircraft carriers, missiles, and over-the-horizon weaponry. Indeed, some argue that technology has so dramatically changed the art of warfare and intelligence gathering that extending restrictions in the EEZ to constrain military and intelligence gathering will be largely ineffective. However, there are still some distinct advantages in being able to operate in and over foreign EEZs, such as showing the flag, testing the response of the coastal State, or gathering certain types of signal intelligence, and thus maritime powers will most likely continue to resist any restrictions on such activities. Third, it seems that there is some confusion and even double standards regarding this regime, and stark differences of opinion abound.
Fourth, there is a growing dialectic between coastal States and maritime powers. Military and intelligence gathering activities by foreign nations in or over others EEZs are becoming more frequent due to the accelerating pace of globalization; the tremendous increase in world trade; the rise in the size and quality of the navies of many nations; and technological advances that allow navies to better utilize oceanic areas. Other conflicts result from the increasing scarcity of resources, the growing threat to the marine environment, and concerns with safety of sealanes. At the same time, coastal States are placing increasing importance on control of their EEZs. Of the 1700 warships expected to be built during the next few years, a majority will be smaller, coastal patrol vessels and corvettes, suggesting even further coastal State emphasis on control of their EEZs. Fifth, the end of the Cold War and the new threats of today like weapons of mass destruction and smuggling of drugs and humans further encourage both coastal and maritime States to extend their control or surveillance beyond their territorial seas, in some cases to others EEZs. Certainly in the aftermath of 11 September 2001, many nations, and the United States in particular, have increased their scrutiny of both military and commercial aircraft and ships approaching from near and far. Sixth, given the myriad boundary disputes and overlapping claims it is not always clear where one nation’s jurisdiction ends and anothers begins. These developments imply that certain UNCLOS provisions formulated 25 years ago in a very different political and technological context must be reinterpreted in the light of these new circumstances. But what are the specific issues, and what, if any behavioral modifications are necessary and mutually acceptable? The purpose of this dialogue series is to answer these questions. The Honolulu Meeting was the third in a dialogue series focused on this topic. The next chapter is a summary of the second meeting in Tokyo. Topics covered there included a summary of the previous meeting in Bali, operational modalities and rules of engagement, US initiatives to enhance maritime security, intelligence collection operations and EEZs, options for resolving disagreements, conclusions, and the way forward. Chapter 3 reviews recent legal decisions, treaties, and State practice regarding freedom of navigation in the EEZ and concludes that this formerly sacrosanct principle is being actually being eroded. The meaning of terms in the 1982 UNCLOS is key to the EEZ regime for military and intelligence gathering activities. Chapter 5 reviews the meanings of these terms in light of the negotiating history of the 1982 UNCLOS and concludes that some important terms are ambiguous, and moreover, that their meaning may change with time and technological advances. Indeed, there are a range of views regarding such terms, depending to some degree on a country’s national security interest. This chapter is
ARTICLE IN PRESS Editorial / Marine Policy 29 (2005) 97–99
followed by perspectives from China, India, Russia and the Republic of Korea. A critical issue for maritime powers like the United States is the right to undertake military and hydrographic surveys in foreign EEZs. Chapter 6 reviews differences and overlaps between hydrographic surveying and marine scientific research in the EEZ. It concludes that hydrographic surveying (but not military surveying) should be under a consent regime, and offers some guidelines for its conduct. Chapter 7 builds on the Dialogue to date by suggesting some guidelines for the conduct of military and intelligence gathering activities in the EEZ and the means and manner of their implementation. Perspectives on proposed guidelines range from serious reservations to support for the concept as a confidence building measure. The last chapter provides a summary of the volume and its major conclusions, and suggests the way forward.
99
References [1] Valencia MJ. A Maritime Regime for North–East Asia. Hong Kong: Oxford University Press; 1996. pp. 46–47. [2] Congressional Record, Proceedings and Debates of the 103rd Congress, Second Session, 140, 86, (30 June 1994). [3] Ball D. A new era in confidence building: the second-track process in the Asia/Pacific region. Security Dialogue 1994;25(2):164. [4] McCaffrie J, Bateman S, Maritime confidence and security building measures in Asia-Pacific: challenges, prospects and policy implications. Paper presented to the First Meeting of the CSCAP Working Group on Maritime Co-operation, Kuala Lumpur, June 1995, pp. 1,5,11.
M.J. Valencia Maritime Policy Expert, 47-511 Hio Place, Kaneohe, Hawaii 96744, USA E-mail address: [email protected]