The world’s constitution for the oceans — more formally known as the UN Convention on the Law of the Sea (UNCLOS) — was a result of bitter negotiations and hard-fought compromises. The US — alone among the maritime powers — did not ratify it. One of the many sticking points in the negotiations was whether or not those countries who wanted to undertake marine scientific research (MSR) in other countries’ extended maritime jurisdictional zones could do so only with their consent. The argument was a manifestation of the fundamental dichotomy between the perspectives of the “developed” and “developing” countries. This dialectic continues.
The developing countries demanded that the developed countries obtain their consent to do MSR in their 200 nautical mile (nm) Exclusive Economic Zones (EEZs) and on their continental shelves. Their concern was that the maritime powers would gather information that could be used against them to endanger their security and gain economic advantage.
The developed countries led by the US argued that MSR benefits all and that such restrictions would inhibit it. Although the parties eventually compromised on a consent regime for MSR in the EEZ and on the continental shelf, disputes over what activities require such consent continue and have resulted in international incidents — notably between the US and China in the South China Sea. Given their fundamental disagreements on this issue, more such incidents are likely.
A recent article in The Diplomat has added fuel to the smoldering fire of this strategically significant controversy. The article “Quantum mechanics and Chinese SSBN strategy” by Raymond Wang concludes that “water quality will become a new factor in underwater communications.” Why is this relevant? Water quality — including clarity, suspended solids, salinity, temperature, organic content and other routinely measured parameters — will affect communications with China’s nuclear powered and armed ballistic missile submarines (SSBNs). These submarines are its principal deterrent to a first nuclear strike against it.
According to the article, SSBNs might patrol in murky areas but would have to regularly go to clearer areas to receive signals. This means that potential adversaries like the US could monitor “clear areas” and have a “good probability of locating a SSBN.” The point is that water quality is measured directly by hydrographic and military survey vessels — the ones that the US argues are not subject to the consent regime.
Indeed, the US has long argued that hydrographic and military surveys — although undefined in the Convention — are differentiated from MSR in its language and are thus exempt from the consent regime and arbitration process. The US has not ratified the Convention and is thus not subject to its arbitration process. If it did ratify the Convention and a complaint was brought against it, the arbitration panel itself — not the US — would determine whether the activities in question are MSR or not. Indeed, this is one reason the US is unlikely to ratify UNCLOS anytime soon.
Nevertheless, this is not an irrelevant academic argument. China frequently challenges — both verbally and physically — US naval vessels and aircraft collecting data in and over its EEZ. Such challenges resulted in the EP-3 (2001), Bowditch (2001), Impeccable (2009), Cowpens (2013) and Poseidon 8 (2014) incidents.
The very reason that UNCLOS’ consent regime for MSR was established was that the information thereby collected may have economic value or may be used to undermine the security of the state. Many developing countries argue that for all intents and purposes, MSR and hydrographic and military surveys have so much overlap in what they collect and how that data is used that they have the same effect regarding their security and economic rights. Indeed, it is clear that some of the information obtained by hydrographic and military surveys may be of great value for commercial exploitation as well as for achieving military objectives.
US Navy lawyers and officials must have known for some time that there is considerable overlap between MSR and hydrographic and military surveys. This leads to the suspicion that there are more hidden “secrets” to be revealed.
For example, detailed US naval side-scan sonar charts of its west coast EEZ, when released, proved invaluable to geologists searching for volcanically active rift zones potentially rich in metallic sulfides. It is now known that remote sensing from satellites and high-flying surveillance aircraft — and perhaps more recently underwater drones — have for some time undertaken surveys over other countries’ EEZs and continental shelves without their permission or even their knowledge as required by UNCLOS.
The “revelation” that knowledge of water quality can give a strategic advantage in a nuclear war is just the latest in what is becoming a seemingly endless drip of similar disclosures. Indeed, trends in technology and the need for more and broader “hydrographic” data have clearly conflated hydrographic surveying with MSR. The seaglider is but one more example. It is a small energy-efficient unmanned underwater vessel that uses a new form of propulsion that changes the vehicle’s buoyancy and allows it to ascend and descend as a means of moving forward. Perhaps these gliders are programmed to avoid gathering information in other countries’ EEZs or from their continental shelves. But this information is classified. These vessels have extremely low energy demands which enable both endurance and stealth due to the absence of noise-producing engines. This makes them ideal “spy” tools.
It is becoming increasingly difficult for US Navy lawyers and officials to argue that data collected today will not have some economic or security value in the future. Thus, similar considerations would now seem to apply to the conduct of hydrographic and military surveys in the EEZ and on the (extended) continental shelf as applied to the conduct of MSR there. The distinction between different categories of surveying and MSR hinges on more than intent and the initial 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.
Some say that the issue can be resolved 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.” This would apply to intelligence, surveillance, and reconnaissance (ISR) vessels, and like the Bowditch and the Impeccable, their deployment of such equipment in a foreign EEZ requires the consent of the coastal state. This article could also be invoked when and if a US Poseidon 8 drops sonobuoys (which is part of its repertoire) or US ISR vessels and aircraft deploy sensing instruments.
The “revelation” of water quality is particularly galling because US Navy lawyers and officials have for years used the canard that hydrographic and military surveys in foreign EEZs are distinct from MSR and therefore do not require the consent of the coastal state. This latest evidence of how seemingly innocuous surveys of “water quality” can be used to blunt an adversary’s nuclear deterrent should put an end to this argument. These lawyers and officials must have known for some time that there is considerable overlap between MSR and hydrographic and military surveys. This leads to the suspicion that there are more hidden “secrets” to be revealed. Until US Navy lawyers and officials — particularly those speaking at supposedly neutral and objective forums — become more transparent, analysts and the media should simply not believe them when they trot out this old canard.