Intelligence Gathering and Espionage in the Exclusive Economic Zone: Peaceful Or Not?

Intelligence Gathering and Espionage in the Exclusive Economic Zone: Peaceful or Not?

Hugh Williamson Marine Affairs Program, Dalhousie University, Halifax, Nova Scotia, Canada

Those fortunate enough to know Elisabeth Mann Borgese were well aware of her deep lifelong commitment to peace. For her, inclusion of ‘for peaceful purposes’ and ‘exclusively for peaceful purposes’ in the United Nations Conven- tion on the Law of the Sea (unclos) were intended as operational, not merely dressing up an otherwise highly practical convention. Her long association with the international law of the sea community developed many long and enduring friendships, often culminating in social gatherings at her home in a small fishing village outside Halifax, Nova Scotia. One such gathering took place after a Law of the Sea Institute annual meet- ing at Dalhousie University in the early 1980s. Elisabeth gathered an eclectic group of friends, including leading scholars, diplomats, lawyers, neighboring fisherfolk and a few fortunate students to share food, drink, and lively discussion. The director of the Institute at the time was Dr. John P. Craven, a widely respected legal scholar, engineer, scientist, and amateur musician.1 That eve- ning, he entertained by singing operatic arias while accompanying himself on Elisabeth’s grand piano, but these were not his only hidden talents. While Dr. Craven’s legal scholarship and musical talent were openly dis- played, details of his previous role as chief scientist for the United States Navy’s Special Projects Office would remain hidden for many years.2 He had, in fact, been the US Navy’s ‘ocean spy chief’, involved in many intelligence-gathering and espionage operations, including recovering lost ships, submarines, and weapons systems, and electronic ‘bugging’ of Soviet Navy telecommunications cables under the Sea of Okhotsk.3 He was also an international lawyer, deeply committed to the principles of unclos as he saw them. Had the clandestine

1 W.J. Broad, “John P. Craven, 90, Pioneer of Spying at Sea, Dies,” The New York Times, 18 Feb- ruary 2015, https://www.nytimes.com/2015/02/19/us/john-p-craven-90-scientist-who-shaped -cold-war-spying-at-sea-dies.html. 2 J.P. Craven, The Silent War: The Cold War Battle Beneath the Sea (New York: Simon and Schus- ter, 2002). 3 C. Morris, “Operation IVY BELLS: Lessons Learned from an ‘Intelligence Success’,” Journal of the Australian Institute of Professional Intelligence Officers 20, no. 3 (2012): 17–29.

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Intelligence Gathering in the eez 417 part of his life been public knowledge at the time, one can only imagine lively discussions which could have taken place around the table in the presence of so many leading international experts on intelligence gathering and espionage. While the media tends to sensationalize collection of intelligence at sea as ‘espionage’ or ‘spying’, referring to any intelligence-gathering vehicle as ‘spy ships’ or planes, there is considerable divergence of legal opinion as to whether any particular event could be defined as research, intelligence collection, or espionage. Within the intelligence community, ‘data’ refers to individual facts, such as a name, or sea temperature and salinity in a particular location. ‘Information’ is a collection or coalition of data related to a specific subject such as time, location, oceanographic conditions, ships in the area, or other facts related to a particular noise source. ‘Intelligence’ is the analysis and significance of information; in this example an assessment that the noise information might identify a new class of submarine. ‘Espionage’, or spying, is the illegal obtaining or possession of any of the foregoing. For purposes of discussion, the most inclusive and neutral term is probably ‘information’. This can be applied in scientific, economic, or strategic contexts, requiring further clarifications on the means or purpose of collection to determine its status and legitimacy. Moreover, information itself is inherently neutral but, when gathered for one purpose, may still be utilized for a variety of others. It is worth noting that the act of espionage itself is not a violation of international law.4 Virtually every country has provisions in its national security, criminal, and other statutes that make espionage against the state, private companies, or individuals an offense. National espionage law may also include various categories of sensitive information, including those related to national security, economic, political, scientific, military, or personal privacy. However, the offense can only be prosecuted where the state has jurisdiction. In the case of intelligence gathered at sea, whether a state can take action will depend on whether it is in compliance with international law, particularly unclos. Maritime military activity remains a problem area, presenting a serious potential threat to peace on a regional and global scale. The increased capa- bilities of current weaponry and the nature of naval operations have led to a number of confidence-building measures, notably incidents at sea agreements (incsea), to avoid accidents or limit the unintended use of force when opposing naval forces are operating in close proximity. While an incsea may govern

4 G.B. Demarest, “Espionage in International Law,” Denver Journal of International Law and Policy 24 (1996): 321–348, 325–326.

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418 Maritime Safety and Security the use of weapons and associated active sensors, and vessel or aircraft ma- neuvering, it specifies surveillance of other vessels, not intelligence-gathering. The issue of control or restriction of intelligence gathering by ships and aircraft operating in the maritime domain remains unclear. Whether units are engaged in a lawful collection of intelligence or in espionage against an opposing state remains, in most cases, a matter of opinion and perspective. Intelligence gathering at sea was common during the Cold War and has contin- ued subsequently, arguably with an increased number of players. Within the territorial sea, intelligence gathering is an act incompatible with the right of innocent passage. This may be the only specific provision in international law prohibiting intelligence gathering or espionage. On the high seas, in areas beyond national jurisdiction, states are free to engage in activities under the regime of freedom of the seas, provided that they do not interfere with or threaten other states. While surveillance and intelligence gathering are not a specifically enumerated freedom, they are not specifically prohibited and are customary practices of naval forces, a point which is used to support a right of intelligence gathering at sea. Within the exclusive economic zone (eez), however, there are two major divergent schools of thought regarding control of intelligence gathering by foreign vessels. The major traditional naval powers, led by the United States, take the view that the eez is strictly a resource and environmental management jurisdiction and other activities, including military, are governed by the high seas regime. Some newer naval states, led by China and India, increasingly emphasize that military activities in the eez may only be conducted subject to the approval of the coastal state. This has led to a number of confrontations between coastal state naval forces and naval units presumed to be gathering intelligence within a clearly recognized or contested eez. In 2017, however, a Chinese naval intelligence-gathering vessel (agi class) undertook active surveillance of naval exercises in the Australian eez, possible denoting a shift China’s position. Broadly speaking, information gathering within the eez falls into five main categories: academic scientific research, natural resource research, hydrographic research, military related research, and intelligence gathering. Information may be obtained actively, such as coring, or passively, such as acoustic recording. Information gathering or research may be conducted by naval vessels, naval auxiliaries, public and private oceanographic and scientific research vessels, or other commercial vessels of opportunity. Warships and naval research ships are considered sovereign territory and beyond the jurisdiction of a foreign coastal state. While they may be involved in passive or covert information-gathering, a coastal state cannot determine if this is so by going aboard to make a direct examination.

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Intelligence Gathering in the eez 419

Academic scientific research is generally to advance scientific knowledge of the ocean environment and is conducted by universities, scientific institutions and other bodies pursuing scientific knowledge, not usually for economic gain. It is largely regulated by unclos Part xiii and carried out in the eez and on the continental shelf with prior notification and approval of the coastal state, which is normally granted. Research by private or government oceanographic vessels, including naval auxiliaries, would all be subject to this regime of consent. Natural resources research in the eez and on the continental shelf are cov- ered in unclos Article 246(5) and may only be undertaken with full prior consent of the coastal state. Under the eez and continental shelf regimes, coastal states have sovereign rights for exploration and exploitation, conservation and management of living resources, as well as jurisdiction with regards to marine scientific research. The coastal state may withhold consent if it has a direct significance for the exploration or exploitation of natural resources, involves drilling into the shelf, the use of explosives, or the introduction of harmful sub- stances into the marine environment. This regime also applies to both private and government (including military) research vessels. Hydrographic research is more problematic. Hydrography is considered by many states as a survey activity for navigational purposes. As it is conducted in support of navigation it may be considered distinct from marine scientific research carried out to expand scientific knowledge or resource-related purposes. Since unclos does not define ‘marine scientific research’, ‘survey activities’, ‘hydrographic survey’, or ‘military survey’ some countries view these as distinct, and include hydrographic survey as a freedom of the seas ancillary to freedom of navigation. Recently this has led to diplomatic protests and more kinetic actions, notably in the South China Sea between vessels of the People’s Republic of China and United States naval auxiliary research vessels. There have also been protests from India involving survey vessels from the United States and the United Kingdom. Military scientific research, which can include military surveying, can also involve the collection of hydrographic, oceanographic, marine geological, geo- physical, chemical, biological, and acoustic data. However, military-focused research may be of limited commercial value, for example, oceanographic data related to acoustic transmissions used for submarine tracking. While the data gathered may be the same as for marine scientific research, the resulting information may be considered highly sensitive or classified, and usually not intended for public release to the scientific community.5 Since it is obtained

5 S. Bateman, “Hydrographic Surveying in Exclusive Economic Zones: Jurisdictional Issues,” International Hydrographic Review 5, no. 1 (New Series) (2004): 24–33.

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420 Maritime Safety and Security for strategic or tactical support to military operations and has not been specifically addressed in unclos, many states consider it to be outside coastal state regulation as part of freedom of the high seas and may be exercised in the eez as well. One further consideration is whether surveillance or intelligence gathering by a vessel could be considered a legitimate peaceful use of the sea. The customary interpretation of ‘peaceful use’ is ‘non-aggressive’ as opposed to ‘non- military’.6 Espionage is the illegal gathering of intelligence and, while forbidden under national law, is not prohibited by international treaties or agreements. Covert or passive means of intelligence gathering are, by their nature, largely undetectable. Even during the Cold War, intelligence vessels were generally left alone, with a few notable exceptions. Some active means of intelligence gathering, however, may violate unclos or other international agreements, such as interfering or disrupting communications, disturbing living resources or persons, or causing environmental damage. There is a further argument for the role of intelligence gathering and espionage in promoting peace and security. While a state may be reluctant to accept the assurances of a potential adversary of a lack of hostile intent or purpose with any degree of confidence, an independent verification provided by a state’s own intelligence sources may have more credibility, especially if it is based on intelligence gained through trusted covert means. Intelligence gathering and espionage are often used to advance a state’s strategic and military objectives, and may be prejudicial to the security of others. To say that surveillance and intelligence-gathering in a coastal state’s eez is always prejudicial to the coast is an oversimplification. Since intelligence gathering also fulfills the necessary role of ‘trust but verify’, its utility as a confidence-building measure cannot be underestimated. Intelligence gathering and espionage are an important component of global security. Undoubtedly both Elisabeth Mann Borgese and John Craven would agree that using the telescope on her deck for surveillance of the nearby nudist beach before walking her dogs might be considered ‘spying’ by some, but would defi- nitely be ‘a peaceful use’ if it avoided future conflict with sunbathers.

6 A.S. Skaridov, “Naval Activity in the Foreign eez: The Role of Terminology in Law Regime,” Marine Policy 29, no. 2 (2005): 153–155.

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