Evidence: Recently Added
Finally, is there a “Russian question” looming behind all of these issues? Whether we choose to proceed by strengthening and extending the existing framework where we must, or to develop new solutions, will Russia choose to participate within that system? As noted at several points above, Russia, by and large, is already doing so. Moreover, Russian officials have been at pains to counteract the characterization of the Arctic described at the beginning of this article: the faulty notion of the Arctic as a future battleground between Russia and the West. For example, the Russian Foreign Ministry has publicly stated that discussion of “a possible military conflict for Arctic resources is baseless” and that the problems facing the region will be resolved “on the basis of international law.”97 Even the provocative figure at the head of Russia’s North Pole expedition has sought to downplay the situation, remarking that “[n]obody’s going to war with anybody” and that while Russia will “defend [its] economic interests . . . a conflict in the near future” is unlikely.98 Moreover, the United States has largely acknowledged that Russia is adhering to the applicable rule of law, in particular with respect to the extended continental shelf.99 Simultaneously, Russia appears to be engaged with the international community when it comes to the Arctic: through the Arctic Council, through the IMO, and in bilateral and multilateral efforts with its fellow Arctic states.100
Aside from dispute settlement, states could gain clarity regarding military activity in the EEZ from bilateral or regional arrangements. Such dialogue could promote clarity and potentially help preempt conflict.96 For instance, the former Soviet Union and the United States adopted a ‘Joint Statement’ providing for uniform interpretation of the right of innocent passage in the territorial sea.97 In the East China Sea, China and Japan have developed bilateral regimes for ‘conflict avoidance’ regarding fisheries and marine scientific research.98 These agreements may not resolve every issue, but they do certainly offer more clarity and could provide mechanisms to deal with situations where the law is uncertain. Another option would be to form regional agreements. In the 1990s, Indonesia used Association of Southeast Asian Nations as a venue for hosting informal talks aimed at conflict resolution and management in the South China Sea.99 Thus, individual states as well as regional organizations may have a role in clarifying the legality of military operations in the EEZ. There is the risk of regional diversification in state practice and interpretation; nevertheless, such arrangements could contribute to increased certainty regarding military uses of the oceans. These multi-state dialogues are particularly crucial at the moment as tensions continue to escalate in the South China Sea region.100
In light of the ambiguity of treaty obligations under UNCLOS regarding military operations in the EEZ, it is useful to consult customary international law. However, state practice regarding such activity is as diverse as states themselves.86 Although all states possess sovereign equality under the UN Charter, states have differing, and at times conflicting, interests and various factors influence their perspective regarding military operations in the EEZ. For instance, a fledgling coastal state without a strong navy may not prioritize the freedom of navigation as much as a state with an advanced military would. In fact,
The struggle to define the EEZ is a political tug-of-war involving a large number of states with dissimilar history, unequal resources, and different maritime interests. This diversity engenders an acute sensitivity about relative rights and privileges, and negotiations tend to end up being viewed through the lens of a zero-sum perspective.87
According to some commentators, there is no reason why economic and military activities cannot coexist in a maritime zone.88 Nevertheless, as military technology continues to advance,89 less developed states continue to make greater claims in the EEZ.90 As state practice regarding military operations in the EEZ continues to evolve in a dynamic system, national practice is inconsistent and remains in dispute.91 In many ways, the legal status of the EEZ will continue to develop through the interaction of competing interests and ‘claim and counterclaim.92
There are currently 160 parties to UNCLOS, including four of the five Arctic coastal states: Canada, Denmark, Norway, and Russia (which joined in 1997).31 As of 2009, the United States had not yet acceded to the Convention, despite extensive and bipartisan support for it to do so.32 And while the United States bestows the status of customary international law on most UNCLOS provisions,33 the failure of the United States to accede to the treaty has deprived it of a “seat at the table when the rights that are vital to [U.S.] interests are debated and interpreted.”34 Non-party status precludes the United States from submitting an application for the recognition of any extended continental shelf it may be able to claim in the Arctic. Indeed, to the extent the United States is concerned about the adherence of Russia or any other country to the laws and norms that apply to the Arctic, the United States would considerably strengthen its position by swiftly acceding to the Convention.
Nonetheless, Russia’s gambit accelerated a media obsession with the Arctic. In the more than two years since Russia’s North Pole adventure—and against a backdrop of a retreating polar ice cap and rising temperatures3—journalists and scholars have come to describe the Arctic’s future in alarmist terms. These reports include warnings of “a race for control of the Arctic,”4 and a “coming anarchy” in which states will “unilaterally grab” as much territory as possible to secure new sources of oil and natural gas.5 Some describe the Arctic as the site of “an armed mad dash” and a potential source of a future armed conflict, likely involving the United States and Russia.6 This troubling picture has generated calls for a new international agreement—an “Arctic Treaty”—to provide a comprehensive legal regime for the region.7 In light of the above, it is easy to see why the casual observer would be left thinking that when it comes to the Arctic, we are operating in a legal vacuum.
But that is simply not the case. Indisputably, the Arctic poses many challenges, but it is not a twenty-first century incarnation of the Wild West. There are institutions and legal frameworks in place through which the challenges of Arctic governance and management can and should be addressed. As discussed below, the centerpiece of that framework is the 1982 United Nations Convention on the Law of the Sea (“UNCLOS” or “Convention”).8 Moreover, within the existing governance structure, Russia’s track record with respect to the Arctic—perhaps in contrast to Russia’s recent record elsewhere—has arguably been more positive than not. As such, rather than fixating on the Arctic as a flashpoint for confrontation, it may be more useful to consider the Arctic as an opportunity for constructive engagement.
In March 2009 in the South China Sea, five Chinese vessels surrounded the unarmed USNS Impeccable, a United States (‘US’) Navy ocean surveillance vessel, and ordered it to leave the area.1 The Impeccable had been conducting routine seabed mapping and tracking submarines about seventy-five nautical miles (nm) south of China’s Hainan Island.2 Two of the Chinese vessels moved within eight meters of the US ship, forcing it to take collision-avoidance measures.3 The Impeccable withdrew from the area but returned the following day accompanied by a US guided missile destroyer for its protection.4 This incident raised tensions in Sino-American relations as both nations accused the other of violating international law.5 The Pentagon protested the aggressive ‘harassment’ of the Chinese vessels while Beijing accused the US ship of illegally operating in China’s Exclusive Economic Zone (EEZ).6 This issue is unlikely to be resolved because the two sides fundamentally disagree on what military activities are permissible in another state’s EEZ.7
The Impeccable confrontation is a good example of the uncertainty and controversy regarding the legality of military operations in the EEZ. Did the United States have the right to conduct activities in China’s claimed EEZ? Was China out of line to require prior notification and permission? What does the United Nations Convention on the Law of the Sea (UNCLOS or the Convention) permit and prohibit in terms of military activities in the EEZ? Unfortunately, the issue of the military uses of the oceans in peacetime raises many contentious questions and very few answers.
When navigating Cyberspace international straits, users behave much like ships and aircraft engaged in transit passage: they proceed without delay, in the normal mode of continuous and expeditious transit, and refrain from any threat or use of force against the national Cyberspace through which their communication is routed. The nature of telecommunications means Cyber Forces transit Cyberspace almost instantaneously and without delay except as limited by system bandwidth during periods of peak demand. The high speed of transmission is valuable to the commander as well as the State through which the Cyber Force is transmitted. The combination of speed and volume of Internet traffic means most States have limited capability to intercept and monitor Cyberspace communications. This limited ability to intercept and monitor traffic through Cyberspace is important to maintaining the neutrality of states that are mere intermediaries in information warfare, as in our opening scenario, because the transited State is unlikely to be aware of the transmission.
In summary, transit passage provides the commander two major advantages over innocent passage: forces may transit in their normal mode of operation42 and bordering States may not suspend the right of transit passage through international straits. When applied to Cyberspace the proscription against suspending transit passage is a strong argument for applying the UNCLOS III by analogy to Cyberspace. While governments, corporations and private organizations may choose to suspend access to their internal Cyberspace for various reasons, as global economies become more dependent on the international telecommunications infrastructure it is unlikely that States could or would entirely close national Cyberspace. Even if a State tried to close national Cyberspace it would have little effect on the ability to transfer CNA packets through international Cyberspace because if intermediate routers are not available the packet will be automatically rerouted. Finally, if a belligerent State, like State A in the opening scenario, were to specifically route a CNA through the Cyberspace of a neutral intermediate state that act alone would be insufficient to violate the neutrality of the transited State if the Cyberspace transit passage analogy is used.
A sound policy that balances international freedoms in Cyberspace with legitimate concerns about national security may be achieved by applying the navigational regimes of the UNCLOS III to the medium of Cyberspace. Fairly applied, such global Cyberspace policies could, borrowing from the language of the Convention,
- be an important contribution to the maintenance of peace, justice, and progress;
- resolve problems of Cyberspace;
- provide due regard for the sovereignty of all States;
- facilitate international communication;
- promote peaceful uses of Cyberspace and the equitable and efficient
- utilization of its resources;
- aid the study, protection, and preservation of the Cyberspace environment;
- contribute to the realization of a just and equitable economic order which takes into account the interests and needs of mankind as a whole and, in particular, the special interests and needs of developing countries;
- establish international Cyberspace as beyond the limits of national jurisdiction, as a common heritage of mankind, the exploration and exploitation of which shall be carried out for the benefit of mankind as a whole irrespective of the geographical location of States.
From the foregoing it is suggested that if the underlying purposes of the UNCLOS III were applied to the Cyberspace medium, it would have a desirable effect on international development of Cyberspace. A test of the usefulness of this analogy in preserving national sovereignty is how well two important access rights under the UNCLOS III, "innocent passage"4 and "transit passage,"5
might be applied to military operations in Cyberspace.
The United Nations has taken a lead role in managing the world's oceans. In 1994, it produced the UN Convention on the Law of the Sea (UNCLOS), which defines maritime zones and serves as a "constitution for the sea." To date, 163 countries have joined in the Convention, with the United States being the only major maritime country that has not ratified the convention. According to the Foreign Policy Association's National Opinion Ballot Report, a large majority of respondents (79%) believe that the U.S. should end its holdout and officially ratify UNCLOS. Such a response may reflect a larger trend on the ballot, as 57% of balloters believe that issues such as fisheries management are best handled by the UN instead of local or regional governments.
The respondents' preference for an international approach extends outside the UN framework. As the global community debates how to handle the Arctic, which is now beginning to yield more mineral resources as the polar ice caps continue to melt, NOBR participants indicate that they would favor an international treaty to govern the use of Arctic resources. Ninety-five percent of respondents agree that the U.S. and other countries with sovereignty in the Arctic should develop an agreement "similar to the Antarctic Treaty," which bans mineral mining and reserves the region for peaceful uses such as research and tourism.
This article concludes that U.S. accession to UNCLOS would not adversely affect the implementation and effectiveness of the PSI. On the contrary, U.S. accession to UNCLOS could help increase the U.S. credibility and leadership in dealing with the threat to inter- national peace and security posed by WMD proliferation. On August 31, 2005, Admiral James Watkins (retired) and Leon Panetta, chairs of the U.S. Commission on Ocean Policy and Pew Oceans Commission respectively, along with over 70 other national leaders and top ocean law and policy experts, sent a letter to Senate Majority Leader William H. Frist, calling on the Senate to move expeditiously to consider and approve U.S. accession to UNCLOS.219 The signatories to the letter agreed with President Bush that accession to the UNCLOS supports vital U.S. national security, economic, and international leadership interests. They also stated that accession to the Convention will strengthen the U.S. ability to defend its important maritime rights, in particular, freedom of navigation and overflight, which are essential to U.S. military mobility, and will enhance U.S. national and homeland security efforts. This call is consistent with this article’s argument that accession to the UNCLOS will not hurt U.S. security interests in pursuing the goals of the PSI, but instead will enhance them.