According to the Article 17 of the United Nations Convention on the Law of the Sea, foreign vessels have the right of innocent passage through the territorial waters of another nation. Passage is considered innocent as long as it is not prejudicial to the "peace, good, order or security of the coastal State" Article 19(1).
Article 19(2)(c) states that "any act aimed at collecting information to the prejudice of the defence and security of the coastal State" is considered prejudicial to the security of the coastal State and therefore not considered innocent passage.
However, intelligence gathering per se within the territorial sea is not explicitly prohibited by the convention.
If information or intelligence gathering is considered prejudicial to the defense and security of the coastal State and would render innocent passage non-innocent, isn't this another way of saying that these activities are banned by the Convention?
Not quite.
The Convention lists a number of activities which would render passage non-innocent. Once passage is non-innocent the coastal State then has the right to take measures in response. Article 25(1) provides that "(t)he coastal State may take the necessary steps in its territorial sea to prevent passage which is not innocent".
The Convention compels no nation to refrain from activities which would render passage non-innocent. But if a nation does engage in such activities, then the nation loses the right of innocent passage and the coastal State can prevent such passage.
What are the permissible responses to suspicions of non-innocent passage of vessels through the territorial waters of another nation?
The most basic response would be to request that the vessel leave the territorial waters of the coastal State. Can more be done?
Yes, but the response must match the threat.
Passive intelligence collection missions, while perhaps provocative, generally do not warrant an aggressive response by the coastal State. The potential consequences of attacking a warship or other government vessel of another nation, including an escalation into war, are sufficiently grave as to normally warrant a response other than armed attack.
The response must match the threat.
When Albania tried to prevent what it considered to be non-innocent passage by British warships by laying mines in the Corfu Channel, the International Court of Justice ruled against Albania. The court held that Albania failed to prove that the passage of the warships threatened the security of Albania to such a degree that the means used was justified, much less an indiscriminate means such as mines.
The context matters.
At first glance, an American submarine lurking in Russian territorial waters off the Kola Peninsula, eavesdropping on Russian naval activity, seems to pose more of a threat due to its military capabilities than that posed by an aging Russian trawler, chugging slowly past Cape Canaveral, hoping to capture the telemetry of a launching rocket.
If a coastal State is concerned about protecting its facilities and activities from prying eyes, whether a passing ship or a reconnaissance satellite, then the coastal State can enhance its means to thwart such observation. Communications security (COMSEC) and operations security (OPSEC) can make it less likely that the desired information is obtained.
Being the target of intelligence-gathering operations is the inevitable consequence of possessing information that other nations desire. Invisibility often comes at an exorbitant price and invites more intrusive intelligence-gathering operations when less intrusive ones fail.
Ultimately, a response to a suspected intelligence operation in the territorial sea depends on how the coastal State views the threat and how the coastal State weighs the consequences of a particular response.
Nations conducting such operations in the territorial waters of other nations must also weigh the pros and cons of such operations. If the right of innocent passage is routinely abused, could this lead to undesirable changes in law and state practice?
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Intelligence-gathering ships and missions reported in the press
Soviet Spy Ship Waiting To Observe Trident Test
Putting Your Head in the Tiger's Mouth: Submarine Espionage in Territorial Waters, James Kraska, Columbia Journal of Transnational Law, Vol. 54, pgs. 164-247 (2015)
U.S. intelligence gathering ship enters Sevastopol harbor (2008)
News, commentary, and links to sources relevant to the legal aspects of foreign intelligence-gathering.
