Revision of U.S. ratification of UNCLOS will not threaten our intelligence operations from Tue, 04/15/2014 - 22:35
Opponents of U.S. ratification of UNCLOS have argued that U.S. intelligence operations will be complicated by UNCLOS because it will prevent U.S. submarines from gathering intelligence in territorial waters. However, these operations are already regulated by the existing 1958 convention which the U.S. ratified and expects other nations to abide by. Furthermore, the intelligence community has reviewed the treaty and concluded that it was still in U.S. interests to ratify the treaty.
Quicktabs: Arguments
U.S. intelligence collection activities at sea are not constrained by the Convention. This matter was fully reviewed at closed hearings before the SSCI and SASC in 2004. At the unclassified level we can comment that those Committees concluded, after receiving testimony from DoD, CIA, and DoS, that the Convention does not affect US intelligence collection activities. Those agencies confirmed that testimony in recent correspondence to the SFRC. With regard to innocent passage, the United States already obligates itself to abide by articles 19 and 20 of the Convention, and we are already formally bound to the same obligations in the 1958 Territorial Sea Convention.
In the mid-1980s the Soviets had drawn a system of straight baselines in the Arctic Ocean. Segment 8-9 is a twenty-six mile line that enclosed Motovsky and Kola Bays. According to the military experts writing in press and magazine accounts, on February 11, 1992, USS Baton Rouge was lurking in what it thought to be international waters when it and a Sierra-class Russian submarine collided.25 In the ensuing diplomatic dispute, the U.S. Navy claimed that the collision occurred more than twelve miles from the "normal baseline," the shoreline, which placed it well within international waters. However, Russia claimed that the U.S. submarine was operating illegally while submerged within its territorial sea as measured from their claimed straight baseline.
Years later, when another Russian submarine, Kursk, sank under mysterious circumstances in the same general area, the Russian Navy immediately claimed that it was the fault of the United States, which had intelligence gathering submarines in the area monitoring the Russian exercises.26 If the United States and Russia were both Party to the Convention, we would likely be able to resolve the legality of this particular baseline segment and avoid such potential incendiary incidents. We continue to have similar disputes concerning excessive straight baseline claims with many other countries all over the world, including China, Iran, Colombia, and Vietnam.
The US-developed PSI is directed toward preventing the illicit transportation by ships of weapons of mass destruction, their delivery systems and related materials. Under the Law of the Sea Convention and customary international law, a number of jurisdictional bases exist for stopping and searching ships suspected of being engaged in some sort of illicit activity. These include jurisdiction exercised by a State with respect to ships flying its flag or within its territorial sea, ports or contiguous zone, and stateless vessels. It is also permissible to stop and search a foreign-flag vessel with the permission of the flag State. The PSI builds on this latter basis of jurisdiction with a series of bilateral agreements by which the United States and its treaty partners agree in advance on a set of orderly procedures for the reciprocal granting of permission for visits and search of suspected ships and cargoes. There is nothing in the Convention that would change the law in any respect with respect to the US practices under the Proliferation Security Initiative. Likewise, with respect to intelligence operations, the Law of the Sea Convention contains no restrictions on US naval surveillance and intelligence operations not already included in the 1958 Convention on the Territorial Sea and Contiguous Zone to which the United States is already a party.
WATKINS: I'll just pick up on one that's very special to me, and that's on intelligence. There was a Senate Select Committee hearing on this intelligence issue on law of the sea in 2004. And witnesses came from the CIA, from Defense, and they all confirmed that the U.S. intelligence plus submarine activities would not be impaired by this convention.
And so, again, the hearings have gone into detail across some of the questions you raised and the myths that are thrown out there by the opponents that somehow this is going to do great damage. And you know, when our P-3 was very closely monitored by the People's Republic of China a few years ago, one of the things we were accused of is getting intelligence over international waters with our air phones headed towards China mainland. And we were sitting there as non-members of the Law of the Sea Convention and would have weak grounds on which to base -- we would have good grounds on which to base it, but whether they would be listened to was questionable.
So again, intelligence is not only gathering information in national waters but also international. So the whole issue of intelligence gathering is another one of these myths that's thrown out there that we're going to lose our ability to do what we have to do to be number one in our national security efforts through good intelligence gathering. So I think that that is, again, one thing that's thrown up there in the air that has no basis whatsoever.
Critics seem to overlook the fact that Articles 17 to 32 of the Convention address only the right of innocent passage. The preamble makes clear what would be true in any event: “matters not regulated by this Convention continue to be governed by the rules and principles of general international law.” Suffice it to say that the matters not regulated by the Convention include the right of self-defense, the international law of armed conflict, and the complex (and for understandable reasons, rarely discussed) questions regarding the practice of states with regard to covert intelligence activities in each others’ territory.