Missing the point

Arecent article for the Center for International Maritime Security (CIMSEC) and The Maritime Executive by former senior US Navy lawyer Raul (Pete) Pedrozo restates his and the United States' interpretation of the relevant international law. But no matter how many times they do so, saying it does not necessarily make it acceptable to all other states.

The article refers amply to the UN Convention on the Law of the Sea. But the US is not a party to UNCLOS. Although the US claims to abide by most of its provisions, it and China have different interpretations of key terms and clauses. Moreover, the exclusive economic zone (EEZ) and its regime were created de nouveau by UNCLOS. The EEZ is sui generis and neither "high seas" nor "international waters."

China and many other countries argue that the Convention is a series of package deals and that non-ratifiers like the US are not entitled to the "benefits" of particular tradeoffs while eschewing their part of the bargain.

They contend, for example, that interpretation of key terms in the Convention relevant to freedom of navigation, such as "other internationally lawful uses of the sea," "abuse of rights," "due regard," "peaceful use/purpose," are evolving rapidly through state practice and that non-ratifiers like the US do not have the legitimacy to interpret them to their advantage, let alone unilaterally enforce their interpretations with warships and warplanes.

Pedrozo's piece refers to UNCLOS Articles 58 and 87, but conveniently neglects to mention the obligation to pay due regard to the rights and duties of the coastal state. Despite the article's assertion, freedom of navigation in the EEZ is qualified by the "due regard" clause.

More specifically, the Pedrozo article's list of "freedoms" in China's EEZ in the Taiwan Strait includes ISR (intelligence, surveillance, reconnaissance) operations; launching and recovery of devices; weapons exercises; and military marine data collection and naval oceanographic surveys.

Because of the "due regard" provision, such "freedoms" depend on what specifically the warship or warplane is doing. For example, if it is undertaking cyber or electronic warfare (EW), this may be viewed as a threat or use of force not allowed by the UN Charter, let alone UNCLOS.

Indeed, the US views some cyber and EW attacks this way. It has agreed to a new clause in the Australia, New Zealand, United States Security Treaty (ANZUS) that gives "cyberattacks the same weight" as missile or bomb attacks or physical invasions. So if the cyber and EW activities of the warships and warplanes in the EEZ constitute an "attack," then what they are doing is illegal.

Particularly relevant are active SIGINT (signals intelligence) activities conducted from aircraft and ships, some of which are deliberately provocative, intending to generate programmed responses. Other SIGINT activities intercept naval radar and emitters, enabling them to locate, identify and track (and thus plan electronic or missile attacks against) surface ships and submarines.

Still others may interfere with communication and computer systems. These activities may involve far greater interference with the communication and defense systems of the targeted coastal state than any traditionally passive intelligence gathering activities conducted from outside national territory. China thinks that some such activities are not consonant with UNCLOS.

Another relevant question is whether such intelligence activities can be deemed inherently hostile to the security interest of the coastal state so as to make it impossible or difficult for the state conducting the intelligence activities to respect either the "peaceful purposes" limitation or the "due regard" limitation.

The UNCLOS negotiators apparently tried to satisfy both sides in this debate by making the relevant provisions ambiguous.

The CIMSEC article assumes that military surveys are not subject to the prior-consent regime for marine scientific research. But this argument can be put to rest by a plain reading of UNCLOS Article 258.

It provides that "the deployment and use of any type of scientific research installation or equipment in any area of the marine environment shall be subject to the same conditions as are prescribed in this Convention for the conduct of marine scientific research in any such area."

It seems difficult to avoid the conclusion that the deployment of such equipment in a foreign EEZ requires the consent of the coastal state.

"These activities may involve far greater interference with the communication and defense systems of the targeted coastal state than any traditionally passive intelligence gathering activities conducted from outside national territory. China thinks that some such activities are not consonant with UNCLOS.”