Activities

The Peaceful Purposes Reservation of the UN Convention on the Law of the Sea* Boleslaw Adam Boczek Kent State University

I. INTRODUCTION

Historically, the oceans have not only played a crucial role in facilitating international communication and providing a source of living and nonliving resources but have also served as a battleground for innumerable armed conflicts and an area for projecting naval power as a tool for achieving polit- ical goals. The oceans have traditionally been used for peaceful as well as nonpeaceful purposes. In the more recent period, the emergence of the bipo- lar balance of terror, combined with the rapidly advancing technology, has favored increasing utilization of the oceans for military pur- poses. This inquiry focuses on the peaceful purposes clauses of the 1982 United Nations Convention on the Law of the Sea. It is useful to bear in mind the following list of major categories of military activities in the oceans:2 (1) navi-

* EDITORS' NoTE.-This is a condensed version of the paper prepared for Pacem in Maribus XV, Malta, September 7-11, 1987. An earlier article to which readers are referred is Boleslaw A. Boczek, "The Concept of Regime and the Protection and Preservation of the Marine Environment," Ocean Yearbook 6, ed. Elisabeth Mann Borgese and Norton Ginsburg (Chicago: University of Chicago Press, 1986), pp. 271- 97. 1. The Law of the Sea: Official Text of the United Nations Convention on the Law of the Sea with Annexed and Index (New York: United Nations, 1983), Sales n. E. 83.v.5. (hereafter referred to as "the Convention"). 2. This list is based on the following literature: for a useful chronology of naval nuclear developments in the years 1946-85, see William M. Arkin et al., "Naval Nu- clear Developments: A Selective Chronology," in The Denuclearisation of the Oceans, ed. R. B. Byers (New York: St. Martin's Press, 1986), pp. 237-63. The geo- strategic environment of the nuclearization of the oceans is reviewed in William M. Arkin et al., "Ocean Space and Nuclear Weapons: The Geostrategic Environment," in Byers, ed., pp. 21-40. The extent of nuclearization in terms of nuclear capabilities, roles, and missions of the nuclear powers is presented in Williams M. Arkin et al., "The Nuclearisation of the Oceans: Roles, Missions and Capabilities," in Byers, ed., pp. 41- 74. For some other analyses see, e.g., Jonathan Alford, "Some Reflections on Technol- gation on the surface and in the water column (and overflight), including routine cruises, naval maneuvers, and other exercises with or without weapons tests and use of explosives, and projecting "naval presence" as an instrument of foreign policy ("gunboat diplomacy");3 (2) providing strategic deterrence in the form of nuclear ballistic missile submarines; (3) surveillance of the potential adversaries' naval and other military activities, of which anti- (ASW) forms an essential part (with the use of various seabed-based devices such as sonars and other acoustic detection systems); (4) emplacement of navigation and communication devices in the sea and on the seabed; (5) emplacement of conventional weapons such as mines; (6) military research; and (7) logistical support, including maintaining naval bases. The progressing , and especially nuclearization, of the oceans raises the question of whether and to what extent international law imposes any limitations on the military use of the sea in peacetime; in other words, What is the permissible scope of such activities from the international legal point of view? The matter attracted the attention of the international community in connection with nuclear tests on the high seas and then, after 1967, was closely related to the debates in the UN Sea-Bed Committee and the negotiations for the conclusion of the Sea-Bed Arms Control Treaty in 1971.4 Consequently, much of the pertinent literature of that period focused on the legal aspects of the military uses of the seabed.55

ogy and Sea Power," 38 InternationalJournal (1983): 397-408; Neville Brown, "Military Uses of the Ocean Floor," in Pacem in Maribus I (Malta: Royal University of Malta Press, 1971), pp. 115-21; Roger Villar, " Developments in the 1980s: Sea," in 1982 RUSI f� Brassey Defence Yearbook (London: Royal United Services Institute, 1982), pp. 18-193; O. Wilkes, "Ocean-based Nuclear Deterrent and Anti-submarine Warfare," Ocean Yearbook 2, ed. Elisabeth Mann Borgese and Norton Ginsburg (Chicago: Univer- sity of Chicago Press, 1980), pp. 226-49. Military uses of the seabed are summarized, .with rich references to further literature, in Patrizio Merciai, "La demilitarisation des fonds marins," 88 Revue ginirale de droit internationale public (RGDIP) (1984): 46-113. See also Rex J. Zedalis, " 'Peaceful Purposes' and Other Relevant Provisions of the Revised Composite Negotiating' Text: A Comparative Analysis of the Existing and Proposed Military Regime for the High Seas," 7 Syracuse Journal of International Law and Commerce (1979): 1-35; and Rudiger Wolfrum, "Restricting the Use of the Sea to Peaceful Purposes: Demilitarization in Being?" 24 German Yearbook of International Law (GYIL) (1982): 200-41. 3. The latter aspect of the use of the oceans has been widely discussed in politico- strategic literature. For a recent analysis of within the context of the Convention see Ken Booth, Law, Force, and Diplomacy at Sea (London: Allen � Unwin, 1985), esp. bibliog. 4. Treaty on the Prohibition of the Emplacement of Nuclear Weapons and Others Weapons of Mass Destruction on the Sea-Bed and the Ocean Floor and in the Subsoil Thereof (hereafter cited as the Sea-Bed Arms Control Treaty), February 11, 1971, 955 United Nations Treaty Series (UNTS), p. 115; also in International Legal Materi- als (ILM) 10 ( 1971 ) : 145. 5. See, e.g., Jens Evensen, "The Military Uses of the Deep Ocean Floor and Its Subsoil," in Proceedings of the Symposium on the International Legal Regime of the Sea-Bed,