The latest edition of the US Navy Commander’s Handbook on the Law of Naval Operations is out. It is the first such revision in a decade—but it continues to convey to US Navy commanders controversial, unilateral interpretations of the international law of the sea. Doing so is misleading and dangerous for US Navy Commanders and the sailors and assets under their command.
The Handbook’s Preface says that it is “designed to provide officers in command and their staffs with an overview of the rules of law governing naval operations in peacetime and during armed conflict”. It does include a disclaimer. “It is not a comprehensive treatment of the law nor is it a substitute for the definitive legal guidance provided by judge advocates and others responsible for advising commanders on the law”. But the disclaimer should be much more emphatic. The problem is that many commanders will—and do– interpret the Handbook as “gospel”– a matter of belief of what is correct–not an issue on which many other countries have radically different interpretations and may act to enforce them—just as the US Navy enforces its own interpretations.
The Preface also acknowledges that “international law is in a continual state of development and change.” This evolution of the law with state practice makes the state of the law ambiguous and is a principle source of disagreement with other countries. And that fact and its implications should be made clear to commanders.
There are many specific problems with the Handbook’s guidelines as well. First and foremost is the continued use –even enshrinement—of the term “international waters”. According to the Handbook “all waters seaward of the territorial sea are international waters in which the high seas freedoms of navigation and over flight are preserved_ _”. But there is no such legal entity as “international waters”. There are various jurisdictional zones stipulated in the UN Convention on the Law of the Sea (UNCLOS)–such as the 12 nautical mile (nm) territorial sea and the 200nm Exclusive Economic Zone (EEZ) and each of these zones has its own restrictions on navigation. In the EEZ these restrictions include the duty to “pay due regard to the rights [and duties] of the coastal state”.
This assertion of high seas freedoms in the EEZ is repeated in the Handbook’s section on the EEZ. In its words “all states enjoy the right to exercise_ _ traditional high seas uses by ships and aircraft that are not resource related”. But it fails to acknowledge that there is a dispute regarding what is or can be considered “resource-related.”
Further, under the heading “Hydrographic and Military Surveys”, the Handbook states “Although coastal state consent must be obtained in order to conduct marine scientific research in its EEZ, the coastal state may not regulate hydrographic surveys or military surveys conducted beyond its territorial sea__ _ .” This is dangerously misleading. As the authors must or should know, there is considerable overlap in methods and data collected between MSR and hydrographic and military surveys.
The U.S. has long argued that hydrographic and military surveys – although undefined in UNCLOS – are (incidentally) differentiated from marine scientific research (MSR) in the text –and are thus exempt from the coastal state consent regime. But the U.S. –alone among maritime powers–has not ratified the package deal compromise and thus does not have the legitimacy to unilaterally interpret its provisions differently from those like China that have ratified it.
The Handbook itself conflates military surveys and MSR. It states that a military survey “is the collection of marine data for military purposes.” It further defines “military survey” as “collection of oceanographic, hydrographic, marine geological, geophysical, chemical, biological, acoustic and related data.” But the Handbook also states that “scientific marine research includes activities undertaken in the ocean and coastal waters to expand general scientific knowledge of the marine environment for peaceful purposes, and includes: physical and chemical, oceanography, marine biology, fisheries research, scientific ocean drilling and ring, geological/geophysical scientific surveying, as well as other activities with a scientific purpose.” The Handbook’s definitions imply that there is considerable overlap between military surveys and MSR in method of collection and potential use.
Apparently to the US Navy it is the unilaterally declared purpose that matters –and other countries just have to trust what the US military says. The problem is that China and many others do not agree with the U.S. criteria and their unilateral interpretation and sometimes challenge – both verbally and physically—US naval vessels and aircraft collecting data in and over their EEZs. Such challenges resulted in the EP-3 (2001), the Bowditch (2001), the Impeccable (2009|), the Cowpens (2013) and the Poseiden 8 (2014) incidents. These differences in interpretation should be elaborated for US commanders.
Indeed, it is important for US commanders to understand why a coastal state is acting the way it is. The very reason that the UNCLOS consent regime for MSR was agreed is that negotiators recognized that information collected thereby may have current or future economic value or be used to undermine the security of the state. For example, detailed US naval side-scan sonar charts of its west coast EEZ, when declassified, proved invaluable to geologists searching for volcanically active rift zones potentially rich in metallic sulfides. Regarding hydrographic surveying, technological advances and the need for more and broader ‘hydrographic’ data have also clouded the differences between hydrographic surveying and MSR.
Similar considerations of consent that apply to the conduct of MSR would now seem to apply to the conduct of hydrographic and military surveys in the EEZ and on the continental shelf. The distinction between different categories of surveying and MSR hinges on more than intent and whatever the collecting state says is the purpose of collecting the data. Indeed, the potential economic and security value and utility of the data to the coastal state should also be considered.
The commanders should be advised that UNCLOS Article 258 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,” that is a consent regime. This may apply to intelligence, surveillance and reconnaissance vessels (ISR) like the Impeccable – in that their deployment of such equipment in a foreign EEZ may require the consent of the coastal state. This UNCLOS article could also be invoked if and when a US Poseiden 8 drops sonobuoys (which is part of its repertoire). This is where different interpretations of the duty to pay “due regard” to the rights of others become critical as coastal states may act on their own interpretations. Warships and aircraft operating in or over another country’s EEZ enjoy freedom of navigation only to the extent that they do not violate the coastal state’s legitimate domestic MSR and marine environment protection laws—or otherwise violate UNCLOS or international law in general—such as threatening the use of force.
Perhaps the Handbook’s most risky guidance for commanders is contained in a remarkable paragraph under “Warning Areas.” It states that “Ships and aircraft of one State may operate in a warning area within international waters and airspace declared by another State, collect intelligence and observe activities involved, subject to the requirement of due regard for the rights of the declaring State_ _.” But it then acknowledges that “the declaring State may take reasonable measures including the use of proportionate force to protect the activities against interference”.
This sounds like a recipe for disaster. It may be so in theory but it is impractical and provocative at sea. Indeed, it is remarkable that such a Handbook would seemingly encourage such risky behavior.
Rather than enhancing the avoidance of incidents at sea, the Handbook – if followed to the letter and without knowledge of alternative views and the reasons for them – could well precipitate such incidents. Such guidance must be tempered by common sense and understanding of other countries’ views and interests.
*Mark J. Valencia, Adjunct Senior Scholar, National Institute for South China Sea Studies, Haikou, China
This piece first appeared in the IPP Review.