Passage and Military Activities

2
Passage and Military Activities

A. Introduction

Two core, and long-held, interests for maritime security have been ensuring that warships¹ can move freely about the globe and that the navies of the world are sufficiently equipped and trained to assert or defend the interests of the state to which they belong. In this context, maritime security is intimately related to the military interests of a state. The law of the sea has developed to account for these important interests, particularly in favour of the states with the greatest power in this regard. The existence of a territorial sea over which a coastal state could exercise sovereignty has long had ties to the national defence of that particular state, and hence had security implications for the state exerting rights off its coast. The so-called cannon-shot rule, attributed to Dutch jurist Bynkershoek, was based on the notion that a coastal state should be able to exercise control over an area of ocean space that could be controlled by force of arms.² The connection of rights over the territorial sea to military purposes was evident in some of the earliest claims to this area. The United States, for example, claimed a 3-mile territorial sea in 1793 to deflect belligerent acts upon US shipping during the Napoleonic Wars.³

While the law of the sea has developed in accordance with these demands for national security, the relevant rules have often been shrouded in ambiguity both to maintain flexibility for military purposes, as well as catering, at least ostensibly, to competing demands to control over ocean space voiced by coastal states. This chapter examines the developments in the law of the sea that particularly responded to demands related to the passage of warships and the use of the oceans for military activities. These developments clearly reflect the traditional dichotomy of exclusive versus inclusive claims to maritime space. The exclusive interests are those of coastal states seeking to control or limit access to their land territory, as well as ensuring protection of the resources needed for the prosperity of the state.⁴ The inclusive interest for warships relates to ensuring there is freedom of access to the oceans for transportation, communication and military purposes. For those favouring this perspective, this freedom of access is said to be in the interests of all.⁵ One question to be considered here is whether current maritime security concerns require new understandings of the ambiguous rules. Does a shared interest in maritime security warrant greater emphasis on assertions of inclusive rights?

At the outset, it is noted that any assessment of the passage of warships and military activities are closely connected to the rights and duties held by states in different parts of the ocean. In each instance that coastal states have sought to make claims over areas of ocean space adjacent to their land, consideration has been given to the implications for the military interests of third states in those particular areas.⁶ The debates over the extension of the breadth of the territorial sea from 3 miles to 12 miles, and legal recognition of the EEZ reflected these competing claims. The first half of this chapter addresses the passage of warships with a focus on the exercise of that right in areas over which a coastal state has sovereignty (the territorial sea, straits and archipelagic waters).⁷ The range of military activities that may be conducted in areas subject to state sovereignty is limited and is predominantly linked to the passage of the vessel itself. In the EEZ and on the high seas, the range of permissible military activities beyond passage increases and the second half of the chapter addresses this broader category of activities.

B. Passage of Warships

The right of warships to traverse maritime areas subject to the sovereignty of the coastal state has been recognized as a legitimate derogation on that state’s sovereignty.⁸ As stated by the Court in the Corfu Channel case, ‘[i]t is… generally recognized and in accordance with international custom that States in time of peace have a right to send their warships through straits used for international navigation… without the previous authorization of a coastal State, provided that the passage is innocent.’⁹ Navigation of warships through territorial seas and straits has always had considerable military importance in view of a range of strategic objectives of third states.¹⁰ The passage of a warship through the territorial sea of a coastal state, or through a particular strait,¹¹ may be the safest and most expeditious route to a particular destination beyond that state’s territorial sea as well as being a necessary area to cross en route to the port or internal waters of a coastal state. The traditional naval interest has been to maintain a right of passage for naval forces that could not be limited, especially in a time of crisis, by coastal states.¹² In view of the interests at stake, third states have been highly cautious about claims seeking to increase the amount of coastal state control over the passage of vessels through territorial seas, and most particularly through straits.¹³

Coastal states have their own security concerns in relation to the passage of warships in proximity to their coasts. From the perspective of national defence and security, a littoral state would want to limit the ability of a third state to conduct any ‘show of force’ in its waters as part of a broader political situation that may exist between them.¹⁴ A coastal state would also be concerned about intelligence gathering by third states in its territorial sea to gain information that may be used in any future armed conflict. These maritime security concerns exist equally for states bordering straits.¹⁵ Although coastal states agitated for an increase in the breadth of the territorial sea to 12 miles on the basis that this buffer zone would limit the utility of weapons used against them, which reflected the cannon-shot rule concept for the breadth of the territorial sea,¹⁶ these arguments have lost all force with the development of weapons technology.¹⁷

Beyond concerns regarding national security, coastal states have an interest in protecting their marine environment from pollution and over-fishing in view of the negative economic impact that may otherwise result from mismanagement. Equally, coastal states have a general interest in maintaining law and order on land and this interest extends to policing adjacent maritime areas to prevent or deter criminal activities that have flow-on effects for law enforcement within the land territory of the coastal state. In this regard, coastal states regularly conduct policing activities over a range of crimes, including drug trafficking and customs and immigration violations. The law enforcement powers of the coastal state are discussed in more detail in the following chapter, but are mentioned here to signal the interests of the coastal state that are at play when regulating the navigation of vessels from third states, and particularly the passage of warships through territorial seas and straits.

The interests of coastal states over their adjacent waters and the interests of third states in ensuring the passage of their warships have been balanced under the law of the sea, primarily through the requirement that passage through the territorial sea must be innocent and in delineating the rights and duties of the coastal state in the regulation of this passage. The need to reconcile these competing claims was particularly evident during the debates in the 1950s and 1960s surrounding the breadth of the territorial sea and the repercussions that would result for the passage of vessels if coastal states were able to extend their sovereignty from a breadth of 3 miles to 12 miles. When both the First and Second Conferences failed to reach agreement on the breadth of the territorial sea for inclusion in a convention, the matter was left unresolved for a number of years. The United States and the Soviet Union both wished to have the question settled and began sounding out various governments on their views on holding another Conference.¹⁸ ‘[P]rotecting the mobility and use of warships was a central motivating force in organizing the Third United Nations Conference on the Law of the Sea.’¹⁹

The resulting compromise was enshrined in UNCLOS, with greater elaboration on the right of innocent passage and the creation of a new passage regime to be applied in certain straits and in archipelagic waters. This part first explains which passage regime applies in different ocean areas, and then addresses the rights of warships under each of these passage regimes. It next considers the counter-balancing rights accorded to coastal states in relation to the passage regimes, highlighting the grants of and limitations on these powers. Final consideration is given to the special regulations for nuclear-powered vessels and submarines. The regime in place has established a balance of interests that allows for recalibration to the extent that differing interpretations of rights and responsibilities may arise in relation to varying factual scenarios. As will be discussed, there is adequate scope to allow for the exigencies of modern maritime security concerns to be accommodated.

(1) Geographic application of passage regimes

The three passage regimes at issue are innocent passage, transit passage and archipelagic sea lanes passage. The right of ships of all states to enjoy innocent passage exists in the territorial sea.²⁰ Innocent passage applies for navigation through the territorial sea—whether the vessel is entering the internal waters of the coastal state or not—and when a vessel is navigating from internal waters to beyond the territorial sea.²¹ Innocent passage will also be available in internal waters where those waters have been formed by the application of the straight baseline system set out in Article 7 of UNCLOS.²²

The right of innocent passage also applies with respect to the passage of foreign ships through straits in particular circumstances. If there is a route outside the territorial sea of a state ‘of similar convenience with respect to navigational and hydrographical characteristics’, then innocent passage continues to apply through the strait and ships exercise the freedom of navigation through the alternative route.²³ Similarly, innocent passage will apply in a strait that is formed by an island of a state bordering the strait and its mainland if there is a route through the high seas or the EEZ seaward of the island that is of similar convenience with respect to navigational and hydrographical characteristics.²⁴ In both these situations, the possibility of vessels enjoying the freedom of navigation in alternative, but similarly convenient, routes permitted the ongoing application of the innocent passage regime in these areas. Finally, innocent passage continues to apply in a strait that links the high seas or an EEZ with the territorial sea of a state.²⁵

Transit passage then applies in respect of straits used for international navigation that lie between one part of the high seas or an EEZ and another part of the high seas or an EEZ.²⁶ Article 38(3) of UNCLOS reads: ‘Any activity which is not an exercise of the right of transit passage through a strait remains subject to the other applicable provisions of this Convention.’ In other instances, ‘passage is regulated in whole or in part by long-standing international conventions in force specifically relating to such straits’,²⁷ and the rights of passage existing in these bodies of water are therefore subject to the terms of the relevant conventions. States may seek to adjust what particular passage regime applies in their adjacent waters by limiting the breadth of their claimed territorial sea. One such example may be seen in South Korea and Japan’s decision to establish a 6-mile territorial sea, thereby ensuring a strip of high seas remains in adjacent international straits and that the waters closest to them are therefore subject to the regime of innocent passage, rather than transit passage.²⁸

UNCLOS creates a regime for the legal recognition of archipelagic states,²⁹ whereby these states are entitled to enclose their outermost islands with straight baselines, transforming the legal status of the waters within those lines into archipelagic waters over which sovereignty is exercised.³⁰ Within archipelagic waters, the right of innocent passage exists for the ships of all states,³¹ except where the archipelagic state has designated sea lanes and air routes thereabove in which the right of ‘archipelagic sea lanes passage’ applies.³² In the event that such designation has not occurred, then ‘the right of archipelagic sea lanes passage may be exercised through the routes normally used for international navigation’.³³ This provision has been described as supplying ‘the lowest common denominator or “safety valve” which enabled the maritime states to accept the concept of archipelagic sea lanes passage’.³⁴ The combination of these passage regimes was the necessary compromise for general recognition of archipelagic waters.

(2) Warships and innocent passage

Warships by their very nature represent the military power of their state. Even in the absence of tension or hostilities between the states concerned, their passage through the territorial sea of another state still creates the situation of a benign show of force. The warship may be seen as reflecting the military status of a state. Ensuring that the passage of warships is indeed innocent as a legal matter requires a clear understanding of what is required to meet the standard of innocence. As the state that witnesses this benign show of force, it is unsurprising that the coastal state has scope for a subjective assessment on whether passage is innocent or not.

What constitutes innocent passage has been a matter of debate, both in terms of drafting appropriate standards for inclusion in international treaties and in the practice of states. At the First Law of the Sea Conference, it was proposed that ‘the sole test of the innocence of a passage was whether or not it was prejudicial to the security of the coastal State’.³⁵ This test was intended to provide the ‘greatest measure of freedom of passage without in any way endangering the sovereignty of the coastal State’.³⁶ A simple reference to ‘security’ was questioned, seemingly because broader security concerns beyond national defence would not be understood as included in the term.³⁷ An alternative was to refer to the ‘interests’ of the coastal state,³⁸ but this was criticized as far too broad.³⁹ As a result, the 1958 Territorial Seas Convention stipulates that for passage to be ‘innocent’, it must not be prejudicial to the peace, good order or security of the coastal state.⁴⁰

UNCLOS also provides that passage is innocent ‘so long as it is not prejudicial to the peace, good order or security’ of the coastal state.⁴¹ However, unlike the 1958 Territorial Sea Convention, Article 19 of UNCLOS proceeds to articulate what activities will be viewed as prejudicial in this regard.⁴² The majority of the stated activities are those that would most likely be undertaken by warships: any threat or use of force against the sovereignty, territorial integrity, or political independence of the coastal state; any weapons exercise or practice; information collection to the prejudice of the defence or security of the coastal state; the launching, landing, or taking on board of any aircraft or any military device; or interference with any systems of communication or other facilities or installations of the coastal state. The designated prejudicial activities also reflect coastal state concerns that implicate its law enforcement efforts and marine management; in this regard fishing, serious and willful pollution, and violations of customs, fiscal, immigration, or sanitary laws and regulations are also viewed as activities rendering passage non-innocent.

The listing of a range of activities that would be prejudicial to the peace, good order, and security of the coastal state arguably enhanced the rights of passage of warships inasmuch as some of the subjectivity allowed to coastal states in assessing the character of passage has been eliminated.⁴³ However, the final clause of Article 19 sets a low threshold for the entire range of activities by stipulating that any activity ‘not having a direct bearing on passage’ could mean the passage is not innocent.⁴⁴ This standard reinforces the requirement that passage through the territorial sea is to be continuous and expeditious and that stopping and anchoring is permissible only if it is incidental to ordinary navigation.⁴⁵ The mere fact that a vessel is a warship will not of itself determine whether passage is innocent or not, but rather the acts undertaken by the warship will inform the nature of the passage.⁴⁶

The passage of warships is thereby limited to traversing the waters in question. It may be the case that the very act of passing through the territorial sea or a strait will be sufficient for strategic objectives of a show of force when the surrounding political situation is tense. Although such a show of force may be viewed by the coastal state as an unlawful threat of force,⁴⁷ it will be the activities undertaken by the warship that will be decisive in determining the innocence of passage rather than the purpose of the mission. This point was underlined in the Corfu Channel Case.⁴⁸ There, Albania contended that the passage of the British warships was not innocent but was in the nature of a political mission.⁴⁹ In deciding whether the passage was innocent, the Court had regard to the manner in which the passage was carried out.⁵⁰ In so doing, the Court took into account the facts that the guns of the warships were trimmed fore and aft, not loaded, and that the flotilla did not proceed in combat formation.⁵¹ From this decision, McDougal and Burke note that a ‘technical state of war’ (involving a high expectation of violence and the passage of warships that were principal supporters of the strait state’s opponents) was not a sufficient justification to deny access to foreign warships.⁵² Consequently, there are ‘no significant distinctions [that] have been added to the law which would empower coastal states to discriminate against warships in their territorial seas’.⁵³

Stephens has argued that the ICJ’s decision in Nicaragua⁵⁴ accepts that actions may be taken in order to preserve maritime freedom, including within the territorial sea.⁵⁵ On this basis, he considers that the Court has indicated that the purpose of the passage is now relevant and that if there is an element of coercion that violates the principle of non-intervention, then coastal states would be entitled to take proportionate counter-measures.⁵⁶ This approach is difficult, as acknowledged by Stephens,⁵⁷ as the assessment of the purpose of a naval mission through territorial seas is highly subjective. As Article 19 already refers to ‘any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal State, or in any other manner in violation of the principles of international law’ in the UN Charter, the types of actions he envisages and that were discussed in Nicaragua are still incorporated within UNCLOS and it seems unnecessary to suggest that there may be additional or separate considerations in assessing whether passage is innocent. Another injection of subjectivity through the examination of the purpose of a mission seems unwarranted.

Even with the increased interest in addressing the current slew of maritime security threats, the balance between coastal state rights and the interests of states with warships in the conduct of innocent passage remains viable. Greater concerns may now arise as to the activities of commercial vessels, which may be involved in transnational criminal or terrorist activities, and their passage through the territorial sea of a coastal state. Questions for coastal states here concern what steps may be taken to respond to non-innocent passage and what law enforcement powers may be exercised. These are matters discussed in Chapter 3.

(3) Warships and transit passage and archipelagic sea lanes passage

In establishing a regime of transit passage in UNCLOS, there was an effort on the part of the more militarily powerful states to ensure that the restrictions associated with the passage of warships under the regime of innocent passage would not apply in vital traffic routes. The strategic importance of maintaining navigational rights in vital waterways is described by Grunawalt as follows: ‘The flexibility and mobility of naval forces are dependent upon their ability to transit choke points in sea lines of communication, and to do so as a matter of right rather than at the sufferance of the coastal or island nations concerned.’⁵⁸ This motivation among states with considerable naval fleets ensured the creation of new passage regimes to protect these military interests.

As with innocent passage, transit passage requires ships and aircraft to proceed without delay.⁵⁹ Rather than prohibiting a series of acts that may be prejudicial to the peace, good order or security of the coastal state, transit passage requires that warships refrain from any threat or use of force against the territorial integrity or political independence of the littoral state.⁶⁰ Vessels in transit passage, including warships, must also refrain from activities ‘other than those incident to their normal modes of continuous and expeditious transit’ in their exercise of the freedom of navigation.⁶¹ Compared to innocent passage, transit passage allows for greater surface navigation rights. Transiting warships are permitted to perform activities that are incidental to passage through the strait and consistent with the security of the unit (such as the use of radar, sonar, and air cover).⁶² The manner of the passage, rather than the purpose of the passage, is again the important consideration in determining whether passage rights have been violated.⁶³

The reference to ‘normal mode’ has been considered as opening up the possibility of a wide range of activities being undertaken by different types of military vessels. For example, the ‘normal mode’ permitted for transit passage of aircraft carriers has been interpreted to include launching and recovering aircraft and helicopters and thus allows carrier task forces to put up combat air patrols as a defensive measure.⁶⁴ Whether a particular activity falls within the scope of the normal mode of a particular warship will be a matter for interpretation in any given situation. Much will depend on how broadly the reference to ‘freedom of navigation and overflight’ is to be understood in the context of transit passage.⁶⁵ In considering the debates as to whether transit passage is more like innocent passage or the freedom of navigation on the high seas, Reisman has noted that some limitation had to be imposed on the traditional freedom of navigation to prevent overt military exercises and weapons testing, surveillance and intelligence gathering, and refuelling, in international straits.⁶⁶

Similar debates for the application of transit passage in straits apply in relation to archipelagic sea lanes passage. There are nonetheless differences between the passage regimes, as archipelagic sea lanes passage is deemed a right,⁶⁷ as opposed to a freedom as is the case with transit passage.⁶⁸ Archipelagic sea lanes passage is also more restricted because vessels must stay within the designated sea lanes,⁶⁹ whereas transit passage does not require vessels to stay within specific boundaries while traversing straits. Archipelagic sea lanes passage involves ‘the exercise in accordance with this Convention of the right of navigation and overflight in the normal mode solely for the purpose of continuous, expeditious and unobstructed transit between one part of the high seas or exclusive economic zone and another part of the high seas of an exclusive economic zone.’⁷⁰ As with transit passage, the creation of archipelagic sea lanes passage represents a compromise between the regime of innocent passage and freedom of navigation on the high seas.⁷¹ Transit passage was an acceptable passage regime to the relevant coastal states on the basis that the archipelagic sea lanes would not necessarily be close to land territory.⁷²

As with innocent passage, current maritime security concerns do not require any reconception of the rights of transit passage and archipelagic sea lanes passage. It could be argued that the exclusive interests of coastal states in terms of protecting the marine environment and the resources therein have been heightened since the creation of the transit passage and archipelagic sea lane passage regimes. Policing requirements have intensified as a result, which again triggers issues related to law enforcement. The inclusive interest in ensuring access for warships and other government vessels has largely remained constant, though, and no shift in the current legal regime seems necessary to respond to growing maritime security concerns.

(4) Coastal state powers vis-à-vis passage of warships

The rights of warships in the exercise of innocent, transit or archipelagic sea lanes passage are subjected to varying amounts of control by the coastal state in light of the sovereignty that the coastal state has over these ocean areas. The extent that a coastal state may regulate warships’ passage has traditionally been controversial with an ongoing oscillation between the interests of warships and the rights of the coastal state. As mentioned, the exclusive interest of the coastal state relates to the power to extend their sovereignty over ocean space and thereby control or limit access to this area.⁷³ Community interest in allowing warships freedom of movement across the globe has endeavoured to counter coastal state impingements on this passage.

One of the primary protections afforded to warships, and hence one of the greatest limitations on coastal state action against warships, is the sovereign immunity accorded to warships, as well as to other government ships operated for noncommercial purposes.⁷⁴ Balanced against this immunity are the requirements that warships comply with the laws and regulations of the coastal state and that the flag state will be internationally responsible for any damage caused by a warship or other government ship.⁷⁵ A coastal state may therefore expect that a warship will respect rules set in place for the protection of the marine environment and the security of the coastal population.⁷⁶ In the event that a warship does not comply with a coastal state’s rules and regulations, its immunity means that the coastal state may not arrest or otherwise institute enforcement proceedings against the warship. The only response available to the coastal state is that it may require the warship to leave the territorial sea immediately,⁷⁷ and utilize minimum force to compel its departure.⁷⁸ If a warship violated the right of innocent passage through a use of force then the coastal state would be entitled to act in self-defence against that warship and potentially resort to more force than would be necessary just to expel the warship from the territorial sea.⁷⁹

The coastal state may also make a determination as to whether the passage of a warship is innocent or not. Although the list of acts in UNCLOS rendering passage non-innocent reduces the discretionary powers of the coastal state, there is still considerable scope for decision-making by the coastal state.⁸⁰ This power is reinforced by the authority of the coastal state to take any necessary steps to prevent passage that is not innocent.⁸¹ Concern had been expressed even prior to the adoption of the 1958 Territorial Sea Convention that too much power was accorded to the coastal state in assessing the innocence of passage.⁸² The United States and the then-Soviet Union proposed that if a coastal state questioned whether passage was innocent then the ship had to be given the opportunity to clarify its intentions or to correct its conduct.⁸³ In any event, a small counterbalance to the discretion of the coastal state is that it faces the burden of explaining any decision, and ensuing enforcement action, to the relevant flag state.⁸⁴