- Email: [email protected]
The principle of peaceful use in the law of the sea and space law
The principle of peaceful use in the law of the sea and space law
R.V. Dekanozov
This article looks at the principle of peaceful use in space law and in the law of the sea, discussing the various relevant conventions and articles and the similarities and differences in application. It also discusses the principle of peaceful use and the common heritage of mankind. R.V. Dekanozov, kand. iurid. nauk, Senior Research Associate, Institute of Economics and Law, Georgian Academy of Sciences, Tbilisi, Georgian SSR, USSR.
‘Often, especially in treaty practice (for example, in the 1982 Convention), the term ‘status’ (or ‘legal status’) is used synonymously with the term ‘legal nature’. But since the term ‘status’ is also employed to mean ‘legal regime’ it is evidently advisable to use the expression ‘legal nature’ in doctrinal writings.
0308-597X/88/030271-05$03.00
Since it is necessary in this article to have recourse to the concept of ‘legal nature’ as applied to expanses (or territories), it is advisable, however briefly, to dwell on this notion and how it differs from the concept of ‘legal regime’, the more so since these notions have been inadequately studied in international legal doctrine. The juridical (or legal) nature of a phenomenon is, in my view, its quintessence, the essence of that which qualitatively distinguishes one phenomenon from another. If one speaks of territories (or expanses) in international law, it must be noted that the legal nature of any territory is determined by the most important principles or provisions identical for each spatial category. Thus, for example, the legal nature of state territory is determined by the principle of territorial supremacy, among others, whereas the legal nature of international territories in common use is determined by the fundamental principles of non-appropriation and common use. Such territories (or expanses) as the high seas, the Antarctic, air space superjacent to the high seas and Antarctica, the seabed beyond the limits of national jurisdiction (or continental shelf), outer space, including celestial bodies within the solar system, are among the international territories in common use. It follows that the legal regime of any territory should obviously be understood as the aggregate of legal norms relating to that territory. In order to illustrate more clearly the relationship of ‘legal nature’ and ‘legal regime’, it may be noted that territories having the same legal nature and, consequently, forming a single spatial category, can be distinguished as a whole by a number of aspects relating to their legal regime (ie, outer space, the high seas, or the seabed beyond the limits of national jurisdiction). On the other hand, territories differing in their legal nature may have a number of general features with respect to their legal regime (for example, celestial objects and international canals).’ The legal regime of individual international territories in common use differs one from the other. To a certain extent this also applies to the issue of using the said territories for peaceful purposes, although the principle of peaceful use promotes the most efficient functioning of the legal regimes of international territories in common use. Nonetheless, for a number of objective reasons there are certain differences in this
@ 1988 Butterworth
& Co (Publishers)
Ltd
271
The principle
of peaceful use in ihe luw of /he .seu urd space luw domain (especially with regard to the high seas). In its fullest expression the principle of peaceful (or of exclusively peaceful) use means the prohibition of any military measures, ie, the regime of nonmilitarization (or demilitarization) and neutralization.
Principle of peaceful use in space law
*UN GA Res 2222 (XXI), Annex. ‘UN GA Res 34/68. ‘See R.V. Dekanazov, ‘Mankind’s interests and the use of outer space for peaceful purposes’, in Proceedings of the XVIII-th Colloquium on the Law of Outer Space, 1985, pp 305-312. ‘These provisions of the Preamble of the Agreement have something in common with the Preamble of the 1959 Treaty on the Antarctica: ‘Recognising that it is in the interest of all mankind that Antarctica shall continue forever to be used exclusively for oeaceful ourooses and shall not become the scene or object of international discord’. UNTS. Vol 402. D 71. The texts quoted once’again confirm that celestial bodies and the Antarctic possess not only an identical legal nature, but also similar legal regimes with respect to the peaceful use of those territories: both celestial bodies and the Antarctica are nonmilitarized and neutralized areas. ‘GA Res 40187, 41153.
272
There is no need to dwell on the term ‘peaceful purposes’ in the 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies,2 nor the 1979 Agreement Governing the Activity of States on the Moon and Other Celestial Bodies.” It is to be emphasized only that the term ‘peaceful purposes’ is used in those international legal acts in its usual meaning: ‘nonmilitary or civilian purposes’.4 The principle of peaceful use in that sense is operative in space law only with respect to the moon and other celestial objects of the solar system. This follows from the fact that under Article IV of the 1967 Treaty ‘The Moon and other celestial bodies shall be used by all States Parties to the Treaty exclusively for peaceful purposes’. There then follows a list of illustrative prohibitions that explain the principle of the use of the moon and other celestial bodies exclusively for peaceful purposes. These provisions were strengthened in the Preamble, Article l(2), and Article 3(2) and (3) of the 1979 Agreement: ‘Desiring to prevent the moon from becoming an area of international conflict’.” We note further that the provisions of Article 3(2) prohibiting the threat or use of force on the moon and other celestial bodies was confirmed in point 1 of the UN General Assembly Resolution of 12 December 1985 and in another of 3 December 1986: ‘The General Assembly . . . reminds all States of their duty to refrain in their space activities from any threat or use of force’ (the wording is identical in both resolutions).” As regards outer space (not including celestial bodies) within the solar system, under Article IV of the Space Treaty provision is made for a regime of partial non-militarization. The principle of peaceful use is in this instance an aim which one must endeavour to attain. This is attested to by the Preamble of the 1967 Treaty: “Recognising the common interest of all mankind in the progress of the exploration and use of to broad outer space for peaceful purposes’, and ‘desiring to contribute international co-operation in the scientific as well as the legal aspects of the exploration and use of outer space for peaceful purposes’. Evidence of the same is to be found in UN General Assembly resolutions, for example, those of 12 December 1984 and 3 December 198.5. In those resolutions the General Assembly ‘calls upon all States, especially those which possess great potential in space areas, to actively promote the attainment of the aims of peaceful use of outer space and take immediate measures to avert an arms race in outer space in the interests of the maintenance of peace and security and the development of international cooperation and mutual understanding’ (point 4; the text is identical in both resolutions).
Principle of peaceful use in the law of the sea With regard to the principle of peaceful use in the law of the sea, distinctions must be drawn between such sea expanses as the seabed beyond the limits of national jurisdiction and the high seas. This
MARINE
POLICY July 1988
The principle of peaceful use in the law of the sea and space law
7GA Res 2749 (XXV). “‘nited Nations, The Law of the Sea: United Nations Convention on the Law of the Sea, 1984. ‘According to Article l(l)(l) of the 1982 Convention, ‘Area’ means the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction. “Point 5 of the Declaration on the Seabed provides: ‘The area shall be open to use exclusively for peaceful purposes by all States, whether coastal or land-locked, without discrimination, in accordance with the international rbgime to be established’. “GA Res 2660 (XXV), Annex. “Article V of the 1971 Treaty obliged states-parties ‘to continue negotiations in good faith concerning further measures in the field of disarmament for the prevention of an arms race on the seabed, the ocean floor and the subsoil thereof’.
MARINE POLICY July 1988
principle, which developed somewhat later in the law of the sea than in space law, was first put forward with respect to the seabed beyond the limits of national jurisdiction, that is, in points 5 and 8 of the Declaration of Principles Governing the Seabed and the Ocean Floor, and the Subsoil thereof, beyond the Limits of National Jurisdiction approved by the UN General Assembly on 17 December 1970.’ It was then confirmed in Article 141 of the 1982 Convention.x Article 141, in particular, reads: ‘The Area shall be open to use exclusively for peaceful purposes by all States, whether coastal or land-locked, without discrimination and without prejudice to the other provisions of this Part’.” This Article reproduces virtually verbatim point 5 of the Declaration on the Seabed. ‘(‘We note that the principle of peaceful use extends in the Area not only to activities with respect to resource deposits of the Area, but in general to all types of activities. This follows clearly from the text quoted. And it should be emphasized further that the term ‘peaceful use’ means with respect to the Area, just as in space law, activities of a non-military, civilian nature. In contrast to the 1967 Treaty and the 1979 Agreement, which give concrete expression to the principle of peaceful use with respect to celestial bodies, the 1982 Convention does not do so with respect to the Area, which of course to some extent reduces the effectiveness of the principle of peaceful use. However, the principle obliges states not only to refrain from military activities in the Area, but also to take steps aimed at giving concrete expression to the principle of peaceful use and to the full realization thereof in the form of treaties or agreements on non-militarization and neutralization of the seabed beyond the limits of national jurisdiction. This is said with sufficient clarity in point 8 of the Declaration on the Seabed: ‘The Area shall be reserved exclusively for peaceful purposes, without prejudice to any measures which have been or may be agreed in the context of international negotiations undertaken in the field of disarmament and which may be applicable to a broader area. One or more international agreements shall be concluded as soon as possible in order to implement effectively this principle and to constitute a step towards the exclusion of the seabed the ocean floor and the subsoil thereof from the arms race’. In pursuance of that provision on 11 February 1971 a Treaty was rapidly concluded prohibiting the emplacement on the seabed and ocean floor and in the subsoil thereof of nuclear weapons and other weapons of mass destruction,” which extends to expanses beyond the limits of a 12-mile maritime belt immediately adjacent to the coast. The Treaty consequently provides for a partial non-militarization of the said expanses of the seabed, including the Area. But this does not mean that only the regime of partial non-militarization extends to the Area. The Treaty is merely a first step toward the concrete expression of a regime of non-militarization and neutralization. The next steps must be taken. The basis for doing so is point 8 of the Declaration, Article 141 of the 1982 Convention, and Article V of the 1971 Treaty.12 We now turn to the principle of peaceful use with respect to other marine expanses, especially the high seas. In accordance with Article 88 of the 1982 Convention, ‘The high seas shall be reserved for peaceful purposes’. What is the content of the principle of peaceful use in this instance? Does the content differ from the principle of peaceful use with respect to expanses such as outer space, including celestial bodies, and
273
The principle of peaceful use in the law of the sea and space luw
‘3Article 31(4) of the Vienna Convention on the Law of Treaties provides: ‘A special meaning shall be given to a term if it is established that the parties so intended’.
274
the seabed beyond the limits of national jurisdiction? It does differ because the term ‘peaceful’ in this instance includes a certain military activity, for example, the presence of warships on the high seas, their right to visit a foreign ship on the high seas under certain conditions (Article 1 IO, 1982 Convention), their right to seize on account of piracy (Article 107, 1982 Convention), and the so-called right of hot pursuit (Article 111, 1982 Convention). Certain military activities are not confined solely to the high seas. Warships, for example, enjoy together with other vessels the right of innocent passage through a foreign territorial sea on condition of compliance with the 1982 Convention provisions (Article 17, 1982 Convention). They also have the right of transit passage through straits used for international navigation (Article 38 and others, 1982 Convention). Thus the terms ‘peaceful’ and ‘peaceful purposes’ with respect to the high seas do not mean only non-military, civilian purposes. They are used here not in the ordinary sense, but in a special meaning imparted by the drafters of the 1982 Convention.” As is evident from the Convention text, military activities are authorized only within certain limits. Article 301, entitled ‘Peaceful Uses of the Seas’, provides that ‘States Parties shall refrain from any threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the principles of international law embodied in the Charter of the United Nations’. But it would not be correct to suppose that these provisions are confined to the seas and oceans in general and to the high seas in particular with respect to the principle of peaceful use. The principle of peaceful use presupposes that states will undertake various activities connected with the further limitation of naval activities. This follows, in particular, from the preamble, pursuant to which the states-parties are convinced that the 1982 Convention ‘will contribute to the strengthening of peace, security, co-operation and friendly relations among all nations . . .‘. This eludes to, for example, the limitation and reduction of naval armaments, extending measures of confidence to the seas and oceans where the most active sea routes lie, the withdrawal of warships carrying nuclear weapons from certain areas of the world oceans, and the like. That these conclusions are well-founded is borne out by the fact that in various international forums, including the United Nations, extending zones of peace and cooperation to the Indian Ocean, the Mediterranean Sea, and elsewhere is being discussed. The 1959 Treaty on the Antarctica is a good example; it prohibited measures of a military character not only on the Antarctic continent but also, in accordance with Article VI, on the Antarctic high seas. There are other examples, in particular the Treaty concluded in 1985 by states of the southern part of the Pacific Ocean declaring that area to be a nuclear-free zone. So the principle of peaceful use of the high seas does differ from the principle of peaceful use of the Area, as well as of celestial bodies and outer space. This is to be explained by the fact that the sea and ocean spaces, including the high seas, have been used for military purposes from ancient times, when the right to go to war was an inalienable right of a state, whereas mankind only recently has begun to exploit outer space, the deep seabed, and the Antarctic, at a time when nuclear weapons had appeared and mankind was aware that world war under modern conditions threatened to eradicate human civilization and when
MARINE
POLICY July 1988
The principle
of peaceful
use in the law of the sea and space law
aggressive wars had been prohibited by international law. The force of tradition and the inertia of political thought are enormous, and this affects not only marine spaces but also outer space (excluding celestial bodies), with regard to which an agreement on the complete prohibition of military activities has not been reached.
Principle of peaceful use and the common heritage of mankind In speaking of the principle of peaceful use in space law and the law of the sea, attention must be drawn to the following fact: this principle (in the sense of prohibiting any military activity) extends to the territories (or expanse) which in accordance with certain international legal acts is the common heritage of mankind. This is understandable. The common heritage of mankind may be used only for peaceful purposes, which precludes any military aims. Otherwise the common heritage of mankind makes no sense. It does not follow, however, that the principle of peaceful use may extend only to the common heritage of mankind. An example is Antarctica. As already noted, the most effective use of the international territories of common use is possible only on condition of the complete prohibition of military activities; however, for a number of reasons a complete prohibition of military activities has not been realized with regard to certain international territories of common use.
Conclusion The principle of peaceful use in the law of the sea and in space law depends, in accordance with the 1969 Vienna Convention on the Law of Treaties, on whether the meaning of the term ‘peaceful’ is the ordinary or a special meaning. In space law the term ‘peaceful’ is used in its ordinary meaning and therefore the principle of peaceful use amounts to the prohibition of any military activity. In this sense the principle of peaceful use extends fully to non-celestial bodies of the solar system, but with respect to empty space is an objective. In the law of the sea the said principle has identical meaning (ie, the prohibition of any military activity) with respect to the Area and, although in this instance concrete expression has not been given to it, states are obliged to undertake activities leading to the full realization of this principle. As regards the high seas, the term ‘peaceful’ has special significance, and therefore the principle of peaceful use with respect to the high seas presupposes certain military activity, but any aggressive activities are prohibited. At the same time this principle provides for certain steps aimed at a further restriction of military activity. The principle of peaceful use in space law and the law of the sea under modern conditions has special significance since that principle is one of the international legal means used to achieve the principal task confronting humanity: the task of preventing a new world war that this time around would be ruinous for mankind.
MARINE POLICY July 1988
275
R.V. Dekanozov
This article looks at the principle of peaceful use in space law and in the law of the sea, discussing the various relevant conventions and articles and the similarities and differences in application. It also discusses the principle of peaceful use and the common heritage of mankind. R.V. Dekanozov, kand. iurid. nauk, Senior Research Associate, Institute of Economics and Law, Georgian Academy of Sciences, Tbilisi, Georgian SSR, USSR.
‘Often, especially in treaty practice (for example, in the 1982 Convention), the term ‘status’ (or ‘legal status’) is used synonymously with the term ‘legal nature’. But since the term ‘status’ is also employed to mean ‘legal regime’ it is evidently advisable to use the expression ‘legal nature’ in doctrinal writings.
0308-597X/88/030271-05$03.00
Since it is necessary in this article to have recourse to the concept of ‘legal nature’ as applied to expanses (or territories), it is advisable, however briefly, to dwell on this notion and how it differs from the concept of ‘legal regime’, the more so since these notions have been inadequately studied in international legal doctrine. The juridical (or legal) nature of a phenomenon is, in my view, its quintessence, the essence of that which qualitatively distinguishes one phenomenon from another. If one speaks of territories (or expanses) in international law, it must be noted that the legal nature of any territory is determined by the most important principles or provisions identical for each spatial category. Thus, for example, the legal nature of state territory is determined by the principle of territorial supremacy, among others, whereas the legal nature of international territories in common use is determined by the fundamental principles of non-appropriation and common use. Such territories (or expanses) as the high seas, the Antarctic, air space superjacent to the high seas and Antarctica, the seabed beyond the limits of national jurisdiction (or continental shelf), outer space, including celestial bodies within the solar system, are among the international territories in common use. It follows that the legal regime of any territory should obviously be understood as the aggregate of legal norms relating to that territory. In order to illustrate more clearly the relationship of ‘legal nature’ and ‘legal regime’, it may be noted that territories having the same legal nature and, consequently, forming a single spatial category, can be distinguished as a whole by a number of aspects relating to their legal regime (ie, outer space, the high seas, or the seabed beyond the limits of national jurisdiction). On the other hand, territories differing in their legal nature may have a number of general features with respect to their legal regime (for example, celestial objects and international canals).’ The legal regime of individual international territories in common use differs one from the other. To a certain extent this also applies to the issue of using the said territories for peaceful purposes, although the principle of peaceful use promotes the most efficient functioning of the legal regimes of international territories in common use. Nonetheless, for a number of objective reasons there are certain differences in this
@ 1988 Butterworth
& Co (Publishers)
Ltd
271
The principle
of peaceful use in ihe luw of /he .seu urd space luw domain (especially with regard to the high seas). In its fullest expression the principle of peaceful (or of exclusively peaceful) use means the prohibition of any military measures, ie, the regime of nonmilitarization (or demilitarization) and neutralization.
Principle of peaceful use in space law
*UN GA Res 2222 (XXI), Annex. ‘UN GA Res 34/68. ‘See R.V. Dekanazov, ‘Mankind’s interests and the use of outer space for peaceful purposes’, in Proceedings of the XVIII-th Colloquium on the Law of Outer Space, 1985, pp 305-312. ‘These provisions of the Preamble of the Agreement have something in common with the Preamble of the 1959 Treaty on the Antarctica: ‘Recognising that it is in the interest of all mankind that Antarctica shall continue forever to be used exclusively for oeaceful ourooses and shall not become the scene or object of international discord’. UNTS. Vol 402. D 71. The texts quoted once’again confirm that celestial bodies and the Antarctic possess not only an identical legal nature, but also similar legal regimes with respect to the peaceful use of those territories: both celestial bodies and the Antarctica are nonmilitarized and neutralized areas. ‘GA Res 40187, 41153.
272
There is no need to dwell on the term ‘peaceful purposes’ in the 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies,2 nor the 1979 Agreement Governing the Activity of States on the Moon and Other Celestial Bodies.” It is to be emphasized only that the term ‘peaceful purposes’ is used in those international legal acts in its usual meaning: ‘nonmilitary or civilian purposes’.4 The principle of peaceful use in that sense is operative in space law only with respect to the moon and other celestial objects of the solar system. This follows from the fact that under Article IV of the 1967 Treaty ‘The Moon and other celestial bodies shall be used by all States Parties to the Treaty exclusively for peaceful purposes’. There then follows a list of illustrative prohibitions that explain the principle of the use of the moon and other celestial bodies exclusively for peaceful purposes. These provisions were strengthened in the Preamble, Article l(2), and Article 3(2) and (3) of the 1979 Agreement: ‘Desiring to prevent the moon from becoming an area of international conflict’.” We note further that the provisions of Article 3(2) prohibiting the threat or use of force on the moon and other celestial bodies was confirmed in point 1 of the UN General Assembly Resolution of 12 December 1985 and in another of 3 December 1986: ‘The General Assembly . . . reminds all States of their duty to refrain in their space activities from any threat or use of force’ (the wording is identical in both resolutions).” As regards outer space (not including celestial bodies) within the solar system, under Article IV of the Space Treaty provision is made for a regime of partial non-militarization. The principle of peaceful use is in this instance an aim which one must endeavour to attain. This is attested to by the Preamble of the 1967 Treaty: “Recognising the common interest of all mankind in the progress of the exploration and use of to broad outer space for peaceful purposes’, and ‘desiring to contribute international co-operation in the scientific as well as the legal aspects of the exploration and use of outer space for peaceful purposes’. Evidence of the same is to be found in UN General Assembly resolutions, for example, those of 12 December 1984 and 3 December 198.5. In those resolutions the General Assembly ‘calls upon all States, especially those which possess great potential in space areas, to actively promote the attainment of the aims of peaceful use of outer space and take immediate measures to avert an arms race in outer space in the interests of the maintenance of peace and security and the development of international cooperation and mutual understanding’ (point 4; the text is identical in both resolutions).
Principle of peaceful use in the law of the sea With regard to the principle of peaceful use in the law of the sea, distinctions must be drawn between such sea expanses as the seabed beyond the limits of national jurisdiction and the high seas. This
MARINE
POLICY July 1988
The principle of peaceful use in the law of the sea and space law
7GA Res 2749 (XXV). “‘nited Nations, The Law of the Sea: United Nations Convention on the Law of the Sea, 1984. ‘According to Article l(l)(l) of the 1982 Convention, ‘Area’ means the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction. “Point 5 of the Declaration on the Seabed provides: ‘The area shall be open to use exclusively for peaceful purposes by all States, whether coastal or land-locked, without discrimination, in accordance with the international rbgime to be established’. “GA Res 2660 (XXV), Annex. “Article V of the 1971 Treaty obliged states-parties ‘to continue negotiations in good faith concerning further measures in the field of disarmament for the prevention of an arms race on the seabed, the ocean floor and the subsoil thereof’.
MARINE POLICY July 1988
principle, which developed somewhat later in the law of the sea than in space law, was first put forward with respect to the seabed beyond the limits of national jurisdiction, that is, in points 5 and 8 of the Declaration of Principles Governing the Seabed and the Ocean Floor, and the Subsoil thereof, beyond the Limits of National Jurisdiction approved by the UN General Assembly on 17 December 1970.’ It was then confirmed in Article 141 of the 1982 Convention.x Article 141, in particular, reads: ‘The Area shall be open to use exclusively for peaceful purposes by all States, whether coastal or land-locked, without discrimination and without prejudice to the other provisions of this Part’.” This Article reproduces virtually verbatim point 5 of the Declaration on the Seabed. ‘(‘We note that the principle of peaceful use extends in the Area not only to activities with respect to resource deposits of the Area, but in general to all types of activities. This follows clearly from the text quoted. And it should be emphasized further that the term ‘peaceful use’ means with respect to the Area, just as in space law, activities of a non-military, civilian nature. In contrast to the 1967 Treaty and the 1979 Agreement, which give concrete expression to the principle of peaceful use with respect to celestial bodies, the 1982 Convention does not do so with respect to the Area, which of course to some extent reduces the effectiveness of the principle of peaceful use. However, the principle obliges states not only to refrain from military activities in the Area, but also to take steps aimed at giving concrete expression to the principle of peaceful use and to the full realization thereof in the form of treaties or agreements on non-militarization and neutralization of the seabed beyond the limits of national jurisdiction. This is said with sufficient clarity in point 8 of the Declaration on the Seabed: ‘The Area shall be reserved exclusively for peaceful purposes, without prejudice to any measures which have been or may be agreed in the context of international negotiations undertaken in the field of disarmament and which may be applicable to a broader area. One or more international agreements shall be concluded as soon as possible in order to implement effectively this principle and to constitute a step towards the exclusion of the seabed the ocean floor and the subsoil thereof from the arms race’. In pursuance of that provision on 11 February 1971 a Treaty was rapidly concluded prohibiting the emplacement on the seabed and ocean floor and in the subsoil thereof of nuclear weapons and other weapons of mass destruction,” which extends to expanses beyond the limits of a 12-mile maritime belt immediately adjacent to the coast. The Treaty consequently provides for a partial non-militarization of the said expanses of the seabed, including the Area. But this does not mean that only the regime of partial non-militarization extends to the Area. The Treaty is merely a first step toward the concrete expression of a regime of non-militarization and neutralization. The next steps must be taken. The basis for doing so is point 8 of the Declaration, Article 141 of the 1982 Convention, and Article V of the 1971 Treaty.12 We now turn to the principle of peaceful use with respect to other marine expanses, especially the high seas. In accordance with Article 88 of the 1982 Convention, ‘The high seas shall be reserved for peaceful purposes’. What is the content of the principle of peaceful use in this instance? Does the content differ from the principle of peaceful use with respect to expanses such as outer space, including celestial bodies, and
273
The principle of peaceful use in the law of the sea and space luw
‘3Article 31(4) of the Vienna Convention on the Law of Treaties provides: ‘A special meaning shall be given to a term if it is established that the parties so intended’.
274
the seabed beyond the limits of national jurisdiction? It does differ because the term ‘peaceful’ in this instance includes a certain military activity, for example, the presence of warships on the high seas, their right to visit a foreign ship on the high seas under certain conditions (Article 1 IO, 1982 Convention), their right to seize on account of piracy (Article 107, 1982 Convention), and the so-called right of hot pursuit (Article 111, 1982 Convention). Certain military activities are not confined solely to the high seas. Warships, for example, enjoy together with other vessels the right of innocent passage through a foreign territorial sea on condition of compliance with the 1982 Convention provisions (Article 17, 1982 Convention). They also have the right of transit passage through straits used for international navigation (Article 38 and others, 1982 Convention). Thus the terms ‘peaceful’ and ‘peaceful purposes’ with respect to the high seas do not mean only non-military, civilian purposes. They are used here not in the ordinary sense, but in a special meaning imparted by the drafters of the 1982 Convention.” As is evident from the Convention text, military activities are authorized only within certain limits. Article 301, entitled ‘Peaceful Uses of the Seas’, provides that ‘States Parties shall refrain from any threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the principles of international law embodied in the Charter of the United Nations’. But it would not be correct to suppose that these provisions are confined to the seas and oceans in general and to the high seas in particular with respect to the principle of peaceful use. The principle of peaceful use presupposes that states will undertake various activities connected with the further limitation of naval activities. This follows, in particular, from the preamble, pursuant to which the states-parties are convinced that the 1982 Convention ‘will contribute to the strengthening of peace, security, co-operation and friendly relations among all nations . . .‘. This eludes to, for example, the limitation and reduction of naval armaments, extending measures of confidence to the seas and oceans where the most active sea routes lie, the withdrawal of warships carrying nuclear weapons from certain areas of the world oceans, and the like. That these conclusions are well-founded is borne out by the fact that in various international forums, including the United Nations, extending zones of peace and cooperation to the Indian Ocean, the Mediterranean Sea, and elsewhere is being discussed. The 1959 Treaty on the Antarctica is a good example; it prohibited measures of a military character not only on the Antarctic continent but also, in accordance with Article VI, on the Antarctic high seas. There are other examples, in particular the Treaty concluded in 1985 by states of the southern part of the Pacific Ocean declaring that area to be a nuclear-free zone. So the principle of peaceful use of the high seas does differ from the principle of peaceful use of the Area, as well as of celestial bodies and outer space. This is to be explained by the fact that the sea and ocean spaces, including the high seas, have been used for military purposes from ancient times, when the right to go to war was an inalienable right of a state, whereas mankind only recently has begun to exploit outer space, the deep seabed, and the Antarctic, at a time when nuclear weapons had appeared and mankind was aware that world war under modern conditions threatened to eradicate human civilization and when
MARINE
POLICY July 1988
The principle
of peaceful
use in the law of the sea and space law
aggressive wars had been prohibited by international law. The force of tradition and the inertia of political thought are enormous, and this affects not only marine spaces but also outer space (excluding celestial bodies), with regard to which an agreement on the complete prohibition of military activities has not been reached.
Principle of peaceful use and the common heritage of mankind In speaking of the principle of peaceful use in space law and the law of the sea, attention must be drawn to the following fact: this principle (in the sense of prohibiting any military activity) extends to the territories (or expanse) which in accordance with certain international legal acts is the common heritage of mankind. This is understandable. The common heritage of mankind may be used only for peaceful purposes, which precludes any military aims. Otherwise the common heritage of mankind makes no sense. It does not follow, however, that the principle of peaceful use may extend only to the common heritage of mankind. An example is Antarctica. As already noted, the most effective use of the international territories of common use is possible only on condition of the complete prohibition of military activities; however, for a number of reasons a complete prohibition of military activities has not been realized with regard to certain international territories of common use.
Conclusion The principle of peaceful use in the law of the sea and in space law depends, in accordance with the 1969 Vienna Convention on the Law of Treaties, on whether the meaning of the term ‘peaceful’ is the ordinary or a special meaning. In space law the term ‘peaceful’ is used in its ordinary meaning and therefore the principle of peaceful use amounts to the prohibition of any military activity. In this sense the principle of peaceful use extends fully to non-celestial bodies of the solar system, but with respect to empty space is an objective. In the law of the sea the said principle has identical meaning (ie, the prohibition of any military activity) with respect to the Area and, although in this instance concrete expression has not been given to it, states are obliged to undertake activities leading to the full realization of this principle. As regards the high seas, the term ‘peaceful’ has special significance, and therefore the principle of peaceful use with respect to the high seas presupposes certain military activity, but any aggressive activities are prohibited. At the same time this principle provides for certain steps aimed at a further restriction of military activity. The principle of peaceful use in space law and the law of the sea under modern conditions has special significance since that principle is one of the international legal means used to achieve the principal task confronting humanity: the task of preventing a new world war that this time around would be ruinous for mankind.
MARINE POLICY July 1988
275