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UNCLOS and navies
Comment
UNCLOS
and navies
Accord at a price Some states regard the deployment of warships and various bits of naval hardware about the seas as vital for the preservation of their security. Other states regard the exclusion of foreign warships and hardware from their waters as equally vital for their security. While national waters were only a narrow band of coastal sea, leaving the high seas available for unimpeded naval operations, few problems arose. But what happens when coastal jurisdiction extends out to 200 miles? To take just one example, do the exclusive rights of the coastal state over ‘installations and structures’ in its exclusive economic zone preclude the unauthorized deployment there by foreign navies of monitoring devices? Seven years of UNCLOS III, culminating in the three hundred articles of the latest negotiating text might be expected to provide a clear answer. They do not. Both ‘naval’ and ‘coastal’ states have, for the most part, managed to avoid the inclusion in the text of any provisions expressly contrary to their interests. Accord has been bought at the price of ambiguity. In addition to the uncertainty created by the superimposition of the EEZ rules upon former high-seas freedoms, the text introduces further doubts with the provision that disputes over the scope of EEZ rights and duties should be settled ‘on the basis of equity’, taking into account the relative importance of the interests, national and global, involved. Where military matters, touching the vital interests and sensibilities of states, are concerned, it is important that states know where they stand. The ability to predict responses to coastal defence measures or to naval operations, and the international stability which depends upon it, rest heavily upon the clear definition of the rights and duties of the states concerned. Such clarity is not found in the substantive provisions of the text, and it would be difficult to devise a less illuminating principle for the resolution of disputes in this area than the reference to ‘equity’. No doubt there are ‘understandings’ as to the way in which the text provisions would, or should, be interpreted; but how much reliance can be placed upon understandings which cannot, it seems, be publicly stated? In the absence of any clear indication of the intentions of the drafters, determination of the precise scope of the rights and duties under the text would, were it accepted as a treaty, turn to a considerable extent upon the actual practice of parties to the treaty. Those who prefer to accept the imperfect package which the treaty would represent, rather than its abandonment in favour of the vicissitudes of unilateralism, will have to support their int’erpretations of its ambiguous provisions by the physical exercise of the rights which they claim. If the compilation of the law of the sea for merchant ships is almost complete, the development of the rules for naval operations is only just beginning. It could be a troublesome business. A.V.Lowe, University
of Manchester, Manchester,
270
MARINE
POLICY October
UK
1980
UNCLOS
and navies
Accord at a price Some states regard the deployment of warships and various bits of naval hardware about the seas as vital for the preservation of their security. Other states regard the exclusion of foreign warships and hardware from their waters as equally vital for their security. While national waters were only a narrow band of coastal sea, leaving the high seas available for unimpeded naval operations, few problems arose. But what happens when coastal jurisdiction extends out to 200 miles? To take just one example, do the exclusive rights of the coastal state over ‘installations and structures’ in its exclusive economic zone preclude the unauthorized deployment there by foreign navies of monitoring devices? Seven years of UNCLOS III, culminating in the three hundred articles of the latest negotiating text might be expected to provide a clear answer. They do not. Both ‘naval’ and ‘coastal’ states have, for the most part, managed to avoid the inclusion in the text of any provisions expressly contrary to their interests. Accord has been bought at the price of ambiguity. In addition to the uncertainty created by the superimposition of the EEZ rules upon former high-seas freedoms, the text introduces further doubts with the provision that disputes over the scope of EEZ rights and duties should be settled ‘on the basis of equity’, taking into account the relative importance of the interests, national and global, involved. Where military matters, touching the vital interests and sensibilities of states, are concerned, it is important that states know where they stand. The ability to predict responses to coastal defence measures or to naval operations, and the international stability which depends upon it, rest heavily upon the clear definition of the rights and duties of the states concerned. Such clarity is not found in the substantive provisions of the text, and it would be difficult to devise a less illuminating principle for the resolution of disputes in this area than the reference to ‘equity’. No doubt there are ‘understandings’ as to the way in which the text provisions would, or should, be interpreted; but how much reliance can be placed upon understandings which cannot, it seems, be publicly stated? In the absence of any clear indication of the intentions of the drafters, determination of the precise scope of the rights and duties under the text would, were it accepted as a treaty, turn to a considerable extent upon the actual practice of parties to the treaty. Those who prefer to accept the imperfect package which the treaty would represent, rather than its abandonment in favour of the vicissitudes of unilateralism, will have to support their int’erpretations of its ambiguous provisions by the physical exercise of the rights which they claim. If the compilation of the law of the sea for merchant ships is almost complete, the development of the rules for naval operations is only just beginning. It could be a troublesome business. A.V.Lowe, University
of Manchester, Manchester,
270
MARINE
POLICY October
UK
1980