In April 2023, Scandinavian journalists uncovered that Russia was running a large-scale programme to spy on offshore wind farms, submarine cables and pipelines, and other infrastructure in the North and Baltic Seas. Security experts say the activities are likely to prepare the ground for sabotage. Foreign Policy commented: “Russian ‘Ghost Ships’ Are Turning the Seabed into a Future Battlefield”. In response to this threat, the North and Baltic Sea countries have joined forces. Part of the effort is to increase the naval presence in the region. Moreover, NATO has established a cell and a network for coordinating the protection of critical undersea infrastructure.
Protecting maritime infrastructure from sabotage is extremely difficult – not just for practical reasons. There are also significant legal challenges (for an in-depth discussion of these legal challenges with regard to Russia’s mapping activities, see here).
Limited Coastal State Jurisdiction in the EEZ
In its territorial sea, the coastal State has the legal power, under the regime of innocent passage, to prevent foreign ships from engaging in activities prejudicial to its security. However, in the exclusive economic zone (EEZ), international law makes it relatively easy for attackers to scout out potential targets and carry out acts of sabotage.
The legal regime of the EEZ in Part V of the UN Convention on the Law of the Sea (LOSC) is designed to balance the freedoms of the high seas with the economic interests of the coastal State. According to LOSC Article 58(1), all States enjoy in the EEZ the freedom of navigation, including “other internationally lawful uses of the sea” related to this freedom. The coastal State has sovereign rights and jurisdiction relating to a limited number of economic, environmental, and scientific matters. But coastal States do not enjoy sovereignty in the EEZ, and the LOSC does not vest them with jurisdiction in military and security matters.
Whether coastal States may claim residual rights to protect their security interests in the EEZ is highly controversial. Given that the legal order of the EEZ is based on a carefully crafted compromise between the freedoms of the high seas and the sovereign rights and jurisdiction of coastal States, it is difficult to argue that coastal States have additional unwritten rights and jurisdiction in the EEZ. Nevertheless, China asserts particularly broad security jurisdiction over its EEZ. Under Chinese law, foreign actors are not allowed to conduct surveying and mapping in maritime areas under Chinese jurisdiction without special permission. One of the arguments put forward by China in support of its position is that surveying and mapping activities, including military surveys, constitute marine scientific research. This interpretation is supposed to open the door to coastal State jurisdiction under Article 56(1)(b)(ii) in conjunction with Part XIII of the LOSC. The United States, a staunch defender of the freedom of navigation, considers such claims as excessive. It insists that hydrographic and military surveys are not subject to coastal State jurisdiction and can be carried out as internationally lawful uses of the sea in the EEZ without coastal State consent. A related question is whether intelligence, surveillance, and reconnaissance operations in the EEZ fall under the notion of “other internationally lawful uses of the sea” within the meaning of LOSC Article 58(1). Overall, the practice and legal positions of States around the world are too inconsistent to draw straightforward conclusions as to whether coastal States can claim residual security-related rights in their EEZs and as to whether military data collection and intelligence operations in a foreign EEZ constitute internationally lawful uses of the sea. Hence, a coastal State cannot rely on a solid basis under the LOSC to prevent foreign ships from mapping critical infrastructure in its EEZ. But what if such mapping activities are obviously hostile in nature?
The Peaceful-purposes Reservation
Like the high seas, the EEZ “shall be reserved for peaceful purposes” (LOSC Articles 58(2) and 88). Although it is not fully settled what is meant by “peaceful purposes” or “peaceful uses” (another term used in the LOSC), the majority view is that Article 2(4) of the UN Charter determines whether a particular purpose or use is peaceful. Espionage as such is generally not considered to fall within the scope of Article 2(4) of the UN Charter. Accordingly, the LOSC’s peaceful-purposes and peaceful-uses reservations do not prohibit the collection of intelligence in or from another State’s EEZ unless the operation itself involves an unlawful use or threat of force.
In the context of Russia’s ongoing hybrid campaign against NATO countries, the deployment of an entire fleet of spy ships to map Western communications, electricity, and energy infrastructure can be understood as a general threat. Whether this threat also crosses the threshold of Article 2(4) of the UN Charter is debatable. Moscow is using these mapping operations, which are carried out more or less openly, to demonstrate its power and create a climate of insecurity in the region. And it is not difficult to see behind these operations a concrete message addressed to Western audiences. The message is that Russia will be able and willing to strike at Western centres of gravity if, in its calculations, this is necessary to increase the pressure on NATO countries.
Issues of self-defence in the context of pipeline and cable sabotage have been discussed in this blog by Azaria and Ulfstein as well as by Lott. However, the present post focuses on cases where Articles 2(4) and 51 of the Charter are not (yet) implicated. The question is whether the law of the sea provides the coastal State with the authority to take action against foreign ships that are reasonably suspected of preparing the ground for sabotage of critical infrastructure in its EEZ.
Sabotage of EEZ Infrastructure as a Violation of Coastal State Sovereign Rights
Coastal States have sovereign rights for exploring and exploiting the natural resources of the EEZ and continental shelf (LOSC Articles 56 and 77). In the 2015 Arctic Sunrise arbitral award, the Arbitral Tribunal dealt with the question of how a coastal State might respond to protest actions within its EEZ. More generally, the award touches on the scope of enforcement powers that a coastal State can claim in the EEZ. The Tribunal drew a somewhat artificial distinction between law enforcement “in the strict sense” and the protection of coastal State rights and interests in the EEZ “more broadly” (paras. 235 and 306). In particular, the Tribunal left no doubt that the coastal State “has the right to take measures to prevent interference with its sovereign rights for the exploration and exploitation of the non-living resources of its EEZ” (para. 324). This implies that coastal States must be able to protect the infrastructure they use for the exercise of their sovereign economic rights.
According to the Arbitral Tribunal, such measures must satisfy the test of reasonableness and, in the case of enforcement, are also subject to the general principles of necessity and proportionality (paras. 222 and 326). The Tribunal considered that it would be reasonable for a coastal State to act to prevent, among other things, “dangerous situations that can result in injuries to persons and damage to equipment and installations” and “delay or interruption in essential operations” (para. 327). The nature and elements of the coastal State’s right to take measures to prevent interference with its sovereign rights were not specified in the award. But the Tribunal addressed two relevant scenarios: the prevention of adverse environmental consequences and the prevention of terrorism.
Protection of the Marine Environment from Pipeline Sabotage
Pipeline sabotage can cause enormous damage to the marine environment and can have a massive negative impact on the living resources in the area where a pipeline is ruptured. Therefore, it could be argued that the coastal State may take enforcement action against vessels suspected of carrying out or preparing acts of sabotage against a pipeline in its EEZ – at least if there is an imminent threat and the flag State is unable or unwilling to stop the ship. Admittedly, the legal basis for such action is far from clear if Article 51 of the UN Charter is not triggered.
LOSC Article 79(2) refers to the right of the coastal State to take reasonable measures to prevent, reduce, and control pollution from pipelines. Some authors interpret this right rather broadly to include even criminal jurisdiction over foreign ships that have caused damage to pipelines laid by third States on the continental shelf (see Wolf, p. 231).
Moreover, according to LOSC Article 208(1), coastal States shall adopt laws and regulations to prevent, reduce, and control pollution of the marine environment arising from or in connection with seabed activities subject to their jurisdiction as well as pollution from artificial islands, installations, and structures under their jurisdiction. Article 214 states that these laws and regulations must also be enforced.
Finally, LOSC Article 73(1) empowers coastal States, in the exercise of their sovereign rights for the exploration, exploitation, conservation, and management of the living resources in the EEZ, to take the necessary enforcement measures, including boarding, inspection, arrest, and judicial proceedings, to ensure compliance with their applicable laws and regulations. Article 73(1) has been interpreted as covering the right of the coastal State to take such measures to prevent any conduct harmful to a pipeline (see Wolf, p. 230).
Creating Enforcement Space: Safety Zones
Regarding the coastal State’s right to prevent acts of terrorism in its EEZ, the Artic Sunrise Arbitral Tribunal held:
One of the rights of a coastal State in its EEZ that may justify some form of preventive action against a vessel would derive from circumstances that give rise to a reasonable belief that the vessel may be involved in a terrorist attack on an installation or structure of the coastal State. Such an attack, if allowed to occur, would involve a direct interference with the exercise by the coastal State of its sovereign rights to exploit the non-living resources of its seabed (para. 314).
This argument can also be applied to acts of sabotage committed by or on behalf of a State. According to LOSC Article 60(4), coastal States may, where necessary, establish reasonable safety zones around certain installations and structures within their EEZ. In such safety zones coastal States are allowed to take appropriate measures to protect the installations and structures. Safety zones can be drawn around wind farms or oil and gas platforms. Whether such zones may be established in the EEZ for safeguarding submarine cables and pipelines is not clear.
Unauthorised entry into a safety zone does not in itself justify boarding the vessel without the consent of the flag State. However, if a ship entering a safety zone is reasonably suspected of being involved in acts of terrorism or sabotage against the infrastructure in the zone, coastal States must have the right to take appropriate enforcement measures against the ship in accordance with LOSC Article 60(4).
In the “Arctic Sunrise” Case (Provisional Measures) before the International Tribunal for the Law of the Sea, Judges Wolfrum and Kelly acknowledged in their Joint Separate Opinion to the Order of 22 November 2013 that coastal States exercise enforcement functions in respect of the protection of the objects within a safety zone in the EEZ (para. 14). Judge Golitsyn stated in his Dissenting Opinion that reference in Article 60(4) to “appropriate measures” means that the coastal State may adopt the necessary enforcement measures to ensure compliance with its regulations governing activities within a safety zone (para. 25).
Moreover, in the Arctic Sunrise arbitral award, the Arbitral Tribunal emphasised that a coastal State is entitled to take law enforcement action in relation to possible terrorist offences committed within a safety zone. In the Tribunal’s view, this includes the boarding, seizure, and detention of a vessel, “where the coastal State has reasonable grounds to suspect the vessel is engaged in terrorist offences against an installation or structure on the continental shelf” (para. 278).
Conclusion
The previous analysis has shown that there are several avenues for coastal States to assert enforcement powers to protect critical infrastructure in their EEZs. In the Arctic Sunrise arbitral award, the Arbitral Tribunal discussed options for taking law enforcement measures “in the strict sense”. Legal authority for law enforcement action against ships that are reasonably suspected of committing or preparing acts of sabotage against critical infrastructure in the EEZ may be derived from LOSC Article 60(4) (in relation to infrastructure located within safety zones), and possibly from LOSC Articles 79(2), 208(1), 214, and 73(1) (in relation to infrastructure the destruction of which poses a particular risk to the marine environment). Moreover, the Arbitral Tribunal examined “more broadly” the coastal State’s legal power to protect its rights and interests in the EEZ. In this regard, the Tribunal emphasised that coastal States have the right to take appropriate measures to prevent interference with their sovereign rights for the exploration and exploitation of the non-living resources of their EEZs and continental shelves. It follows from LOSC Articles 56 and 77 that this also applies to the living resources of the EEZ and continental shelf.
Apart from that, however, it is difficult to argue that coastal States have additional residual rights in the EEZ. Claiming general jurisdiction in military and security matters would be closer to China’s vision of the EEZ than to the liberal position traditionally held by Western States.
Critical Maritime Infrastructure and the Regime of the EEZ: A Blank Cheque for Saboteurs?
Written by Christian SchallerIn April 2023, Scandinavian journalists uncovered that Russia was running a large-scale programme to spy on offshore wind farms, submarine cables and pipelines, and other infrastructure in the North and Baltic Seas. Security experts say the activities are likely to prepare the ground for sabotage. Foreign Policy commented: “Russian ‘Ghost Ships’ Are Turning the Seabed into a Future Battlefield”. In response to this threat, the North and Baltic Sea countries have joined forces. Part of the effort is to increase the naval presence in the region. Moreover, NATO has established a cell and a network for coordinating the protection of critical undersea infrastructure.
Protecting maritime infrastructure from sabotage is extremely difficult – not just for practical reasons. There are also significant legal challenges (for an in-depth discussion of these legal challenges with regard to Russia’s mapping activities, see here).
Limited Coastal State Jurisdiction in the EEZ
In its territorial sea, the coastal State has the legal power, under the regime of innocent passage, to prevent foreign ships from engaging in activities prejudicial to its security. However, in the exclusive economic zone (EEZ), international law makes it relatively easy for attackers to scout out potential targets and carry out acts of sabotage.
The legal regime of the EEZ in Part V of the UN Convention on the Law of the Sea (LOSC) is designed to balance the freedoms of the high seas with the economic interests of the coastal State. According to LOSC Article 58(1), all States enjoy in the EEZ the freedom of navigation, including “other internationally lawful uses of the sea” related to this freedom. The coastal State has sovereign rights and jurisdiction relating to a limited number of economic, environmental, and scientific matters. But coastal States do not enjoy sovereignty in the EEZ, and the LOSC does not vest them with jurisdiction in military and security matters.
Whether coastal States may claim residual rights to protect their security interests in the EEZ is highly controversial. Given that the legal order of the EEZ is based on a carefully crafted compromise between the freedoms of the high seas and the sovereign rights and jurisdiction of coastal States, it is difficult to argue that coastal States have additional unwritten rights and jurisdiction in the EEZ. Nevertheless, China asserts particularly broad security jurisdiction over its EEZ. Under Chinese law, foreign actors are not allowed to conduct surveying and mapping in maritime areas under Chinese jurisdiction without special permission. One of the arguments put forward by China in support of its position is that surveying and mapping activities, including military surveys, constitute marine scientific research. This interpretation is supposed to open the door to coastal State jurisdiction under Article 56(1)(b)(ii) in conjunction with Part XIII of the LOSC. The United States, a staunch defender of the freedom of navigation, considers such claims as excessive. It insists that hydrographic and military surveys are not subject to coastal State jurisdiction and can be carried out as internationally lawful uses of the sea in the EEZ without coastal State consent. A related question is whether intelligence, surveillance, and reconnaissance operations in the EEZ fall under the notion of “other internationally lawful uses of the sea” within the meaning of LOSC Article 58(1). Overall, the practice and legal positions of States around the world are too inconsistent to draw straightforward conclusions as to whether coastal States can claim residual security-related rights in their EEZs and as to whether military data collection and intelligence operations in a foreign EEZ constitute internationally lawful uses of the sea. Hence, a coastal State cannot rely on a solid basis under the LOSC to prevent foreign ships from mapping critical infrastructure in its EEZ. But what if such mapping activities are obviously hostile in nature?
The Peaceful-purposes Reservation
Like the high seas, the EEZ “shall be reserved for peaceful purposes” (LOSC Articles 58(2) and 88). Although it is not fully settled what is meant by “peaceful purposes” or “peaceful uses” (another term used in the LOSC), the majority view is that Article 2(4) of the UN Charter determines whether a particular purpose or use is peaceful. Espionage as such is generally not considered to fall within the scope of Article 2(4) of the UN Charter. Accordingly, the LOSC’s peaceful-purposes and peaceful-uses reservations do not prohibit the collection of intelligence in or from another State’s EEZ unless the operation itself involves an unlawful use or threat of force.
In the context of Russia’s ongoing hybrid campaign against NATO countries, the deployment of an entire fleet of spy ships to map Western communications, electricity, and energy infrastructure can be understood as a general threat. Whether this threat also crosses the threshold of Article 2(4) of the UN Charter is debatable. Moscow is using these mapping operations, which are carried out more or less openly, to demonstrate its power and create a climate of insecurity in the region. And it is not difficult to see behind these operations a concrete message addressed to Western audiences. The message is that Russia will be able and willing to strike at Western centres of gravity if, in its calculations, this is necessary to increase the pressure on NATO countries.
Issues of self-defence in the context of pipeline and cable sabotage have been discussed in this blog by Azaria and Ulfstein as well as by Lott. However, the present post focuses on cases where Articles 2(4) and 51 of the Charter are not (yet) implicated. The question is whether the law of the sea provides the coastal State with the authority to take action against foreign ships that are reasonably suspected of preparing the ground for sabotage of critical infrastructure in its EEZ.
Sabotage of EEZ Infrastructure as a Violation of Coastal State Sovereign Rights
Coastal States have sovereign rights for exploring and exploiting the natural resources of the EEZ and continental shelf (LOSC Articles 56 and 77). In the 2015 Arctic Sunrise arbitral award, the Arbitral Tribunal dealt with the question of how a coastal State might respond to protest actions within its EEZ. More generally, the award touches on the scope of enforcement powers that a coastal State can claim in the EEZ. The Tribunal drew a somewhat artificial distinction between law enforcement “in the strict sense” and the protection of coastal State rights and interests in the EEZ “more broadly” (paras. 235 and 306). In particular, the Tribunal left no doubt that the coastal State “has the right to take measures to prevent interference with its sovereign rights for the exploration and exploitation of the non-living resources of its EEZ” (para. 324). This implies that coastal States must be able to protect the infrastructure they use for the exercise of their sovereign economic rights.
According to the Arbitral Tribunal, such measures must satisfy the test of reasonableness and, in the case of enforcement, are also subject to the general principles of necessity and proportionality (paras. 222 and 326). The Tribunal considered that it would be reasonable for a coastal State to act to prevent, among other things, “dangerous situations that can result in injuries to persons and damage to equipment and installations” and “delay or interruption in essential operations” (para. 327). The nature and elements of the coastal State’s right to take measures to prevent interference with its sovereign rights were not specified in the award. But the Tribunal addressed two relevant scenarios: the prevention of adverse environmental consequences and the prevention of terrorism.
Protection of the Marine Environment from Pipeline Sabotage
Pipeline sabotage can cause enormous damage to the marine environment and can have a massive negative impact on the living resources in the area where a pipeline is ruptured. Therefore, it could be argued that the coastal State may take enforcement action against vessels suspected of carrying out or preparing acts of sabotage against a pipeline in its EEZ – at least if there is an imminent threat and the flag State is unable or unwilling to stop the ship. Admittedly, the legal basis for such action is far from clear if Article 51 of the UN Charter is not triggered.
LOSC Article 79(2) refers to the right of the coastal State to take reasonable measures to prevent, reduce, and control pollution from pipelines. Some authors interpret this right rather broadly to include even criminal jurisdiction over foreign ships that have caused damage to pipelines laid by third States on the continental shelf (see Wolf, p. 231).
Moreover, according to LOSC Article 208(1), coastal States shall adopt laws and regulations to prevent, reduce, and control pollution of the marine environment arising from or in connection with seabed activities subject to their jurisdiction as well as pollution from artificial islands, installations, and structures under their jurisdiction. Article 214 states that these laws and regulations must also be enforced.
Finally, LOSC Article 73(1) empowers coastal States, in the exercise of their sovereign rights for the exploration, exploitation, conservation, and management of the living resources in the EEZ, to take the necessary enforcement measures, including boarding, inspection, arrest, and judicial proceedings, to ensure compliance with their applicable laws and regulations. Article 73(1) has been interpreted as covering the right of the coastal State to take such measures to prevent any conduct harmful to a pipeline (see Wolf, p. 230).
Creating Enforcement Space: Safety Zones
Regarding the coastal State’s right to prevent acts of terrorism in its EEZ, the Artic Sunrise Arbitral Tribunal held:
One of the rights of a coastal State in its EEZ that may justify some form of preventive action against a vessel would derive from circumstances that give rise to a reasonable belief that the vessel may be involved in a terrorist attack on an installation or structure of the coastal State. Such an attack, if allowed to occur, would involve a direct interference with the exercise by the coastal State of its sovereign rights to exploit the non-living resources of its seabed (para. 314).
This argument can also be applied to acts of sabotage committed by or on behalf of a State. According to LOSC Article 60(4), coastal States may, where necessary, establish reasonable safety zones around certain installations and structures within their EEZ. In such safety zones coastal States are allowed to take appropriate measures to protect the installations and structures. Safety zones can be drawn around wind farms or oil and gas platforms. Whether such zones may be established in the EEZ for safeguarding submarine cables and pipelines is not clear.
Unauthorised entry into a safety zone does not in itself justify boarding the vessel without the consent of the flag State. However, if a ship entering a safety zone is reasonably suspected of being involved in acts of terrorism or sabotage against the infrastructure in the zone, coastal States must have the right to take appropriate enforcement measures against the ship in accordance with LOSC Article 60(4).
In the “Arctic Sunrise” Case (Provisional Measures) before the International Tribunal for the Law of the Sea, Judges Wolfrum and Kelly acknowledged in their Joint Separate Opinion to the Order of 22 November 2013 that coastal States exercise enforcement functions in respect of the protection of the objects within a safety zone in the EEZ (para. 14). Judge Golitsyn stated in his Dissenting Opinion that reference in Article 60(4) to “appropriate measures” means that the coastal State may adopt the necessary enforcement measures to ensure compliance with its regulations governing activities within a safety zone (para. 25).
Moreover, in the Arctic Sunrise arbitral award, the Arbitral Tribunal emphasised that a coastal State is entitled to take law enforcement action in relation to possible terrorist offences committed within a safety zone. In the Tribunal’s view, this includes the boarding, seizure, and detention of a vessel, “where the coastal State has reasonable grounds to suspect the vessel is engaged in terrorist offences against an installation or structure on the continental shelf” (para. 278).
Conclusion
The previous analysis has shown that there are several avenues for coastal States to assert enforcement powers to protect critical infrastructure in their EEZs. In the Arctic Sunrise arbitral award, the Arbitral Tribunal discussed options for taking law enforcement measures “in the strict sense”. Legal authority for law enforcement action against ships that are reasonably suspected of committing or preparing acts of sabotage against critical infrastructure in the EEZ may be derived from LOSC Article 60(4) (in relation to infrastructure located within safety zones), and possibly from LOSC Articles 79(2), 208(1), 214, and 73(1) (in relation to infrastructure the destruction of which poses a particular risk to the marine environment). Moreover, the Arbitral Tribunal examined “more broadly” the coastal State’s legal power to protect its rights and interests in the EEZ. In this regard, the Tribunal emphasised that coastal States have the right to take appropriate measures to prevent interference with their sovereign rights for the exploration and exploitation of the non-living resources of their EEZs and continental shelves. It follows from LOSC Articles 56 and 77 that this also applies to the living resources of the EEZ and continental shelf.
Apart from that, however, it is difficult to argue that coastal States have additional residual rights in the EEZ. Claiming general jurisdiction in military and security matters would be closer to China’s vision of the EEZ than to the liberal position traditionally held by Western States.
Share this:
Related
Categories
Tags
Leave a Comment
Comments for this post are closed
Comments