Surveillance from the Seas

• Author: By Lieutenant Commander Robert E. Coyle
• Pages: 04

I. INTRODUCTION

In August, 1964, two US destroyers, the USS Maddox and the USS Turner Jay while in the Gulf of Tonkin gathering electronic information on coastal radar installations, were allegedly attacked on the high seas hy North Vietnamese torpedo boats.' These ships and this incident were the basis for the Gulf of Tonkin Resolution of the United States Senate which allowed a widening of the United States involvement in Vietnam.l In June, 1967, the USS Liberty, a specially outfitted and designated electronics surveillance ship of the United States Navy, wa8 attacked and severely damaged while sitting mme thirteen miles off the coast of Egypt listening to battlefield communications between the combatants in the Arab-Israeli war.' Even more sensational was the seizure of the US9 Pueblo,' a ship similar to the Liberty and having the same function. In January 1968, while conducting an eavesdropping misaion off the coast of North Korea and while in international waters (although this point is debatable)) she was seized and her crev imprisoned by the North Koreans.

This list of incidents involving surveillance forces is by no means inclusive. There has, in addition to me of sea-going vessels, been surveillance by airplanes and satellites.#

*This article w a ~ adapted from B thenis presented to The Judge AdvDeate

General's Schaai, US Arm>-, Chariottesi.iiie, Virginia, while the author w88 B member of the Twentieth Advanced Course The minimi and conclusions pmrented herein m e those of the author and do not necessarily represent the view of The Judge Ad,ocate Generd's School or m y governmental agency.

'*JAGC, US N a ~ y

OS Naval Air Station. Pensaeoia. EA, 1963, Vslparaiso Univ.. Valparalro, Indiana: J.D.,

1966, Valparaiso Sehwl of Law;member af the bars of Supreme Court of Indiana, Federal District Court of the Southern Distnet of Indiana, and the United States Court of Military Appeals.

'A. Tmm, THE SUPER SPIES, 133-31 (1969); Xew Yark Timen. August

ilq6d n+ 1

*Act of August 10. 1964. Pub. L lo. 8&4Q8, 69 Stat. 1OS1.'TCLLP, auva note 1 ai 181-33: Xew York Times, June 9, 1967, at 1. *Sew York Times, Jsnuary 24,1968, at 1.'Id. See aim Aldrieh, Questtam a/ Intemvtzonel Lab Raised bv the

'Wright, Legal Aapecta a/ the U-9 Incident, 54 AM. J. INT. Uw 836Ssiiure of the WS

Pueblo, 1969 PROCEmlxoS Ax. Sc. OF IRT. LAW 3.

, .

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, -. -.

General Wheeler. a former Chairman of the Joint Chiefs of Staff, in 1969 disclosed that "since 1949 US reconnaissance ships and planes have been the targets of 41 attacks br the Korth Koreans" alone:

The justification which the United States puts forth far it8 surveillance activities 1s best aummarized by former Secretary of State Herter's reepon~e to Soviet objections to the U-2 incident of 1960:

[Ilt is unacceptable that the Sonet ~ollti~sls~atem should

be Firen the Opportunity to make secret preparstionr to face th? free vorld rith the choice of abject surrender or nuelea~ destruc-ernment of the United States iiauld be derelict to ita not onlv IO !he American people but the free peapie everwhere if I t d.d not, I" the absence of Soviet cooperanon. take

s.ich meamre8 as are porribie .nilaterally to lessen and to over-come this danger of ~urprme attack. In fact. the United States has not and does not shirk thx responsibility. . . .I

11. THE PROBLEM

This comment will examine sur\-eillance activities with a view toward defining what ie or should be permissible under international law.' The comment will examine surveillance activities within the context of the existing legal organization of the oceans and in light of the United Sationa' norms af territorial Integrity, political independence, nonintervention, sovereign equality, and self-defense The specific questions for which answers will be sought are: (1) Are surveillance activities illegal per Se

(2) If not, should they be? (3) If surveillance may be permitted what are the limits of such permission? The factual context will be limited to activities conducted by military naval vessels operating on the surface of the oceans.

What significant factors do the previously mentioned activities share: First they share a commonality of purpose. All of these missions, regardless of the method employed, are designed to gather data (electromc, hb-drographic, visual, etc 1 whlch (1960) Dean The Seoond Geneva Conuentm Canieirncs on the Law ai the Sea. h e

Ftdhi for Freedom of the Sea. 54 AM J. Is* L A W 789, n16i(1960)~ US BEWB

.AYD WORLD

REPORT,

April 28, 1969, st 25-21: D. W-ISE B T ROSE THI: I I V I ~ L C

G~ERNIIEIT (19641 Xashingtan Part, February 8, 1972, a; Ai, US NEW AND WORLD

Rrm~r.'September 9. 1968, at 69. and

Xlov?mber 24, 1969. at 22-33; ci. Wall Street Journal. Aprll 18. 1969

TIME. May 16, 1069, at 23.'Wright, supra note 6. at 841-48.*For the purpose of this comment svrseillance w1i be conmdered toencompass only rhe passive type and does not include probing a "atlor.'% defenses by eleetranie means.

SURVEILLANCE

may help the observing nation determine the target state's intentions, war-making capabilities, and defenses (natural or artificial) and what stratem and tactics would be most effective in the event of an armed conflict between the nations. Of course this information may be gathered for either an aggressive (green light) In purpose, i.e., illegal invasion, or a defensive one (red light)," i.e., warning of surprise attack. A second common factor i8 that the observing farce is usually clearly identifiable as an intelligence gatherer and usually is a military unit displaying her country's colors. Finally, the missions are acknowledged to be the official acts of the sending government. While it is true that there is no announcement in advance of each mission, the activity is publicly acknowledged and specific missions are defended if an objection is made by a state.

Why do target states respond 80 forcefully? The observed states have not demonstrated initiative nor been convincing in defining the vital legal interests they so obviously feel are seriously threatened by these intelligence gathering activities. Both the Soviet Union and North Korea paint to a violation of their territorial integrity-ven where there wa8 clearly no physical entry into either the territory or airspace of the country.'* It is possible that these seemingly baseless assertions may be nothing more than an attempt to create an "acceptable" legal facade for their actions.

The Soviet Union has also alleged very forcefully that reconnaissance activities constitute an act of aggression.la In the U-2 matter the Soviet Union specifically requested that the Security Council declare the fiight to be such an act. However, the Secur-ity Council decided by a 7-2 vote (with abstensions) that "the U-2 flight was not an act of aggression." I' although it involved a physical entry into the airspace of the Soviet Union. Mare re-cently the Soviet Union has not continued to press the point that these activities constitute acts of aggression.'< Perhaps this indicates that the Soviets have changed their attitude, realizing the value of reconnaissance activities.

"EESSATS ON ESPION.~CE

*NO IX~?RNATIONAL

"See New York Times, July 17, 1060, I 4 st E6: Aldrich, mzm note 6 at

OF

"Wnght. mpve note 6, at 84641.

"Butler. The Pushlo Cnaie' Some Ctitzcd ReP.aetiona, 63 J. AM. Suc.

LAW 7-8 (1965)

UW, 42 iR. Stanger ed.

1562).

"Id.

2-4.

SPICE, 236, 314 (1063).

1x1.

"M. MCDOUDAL, H. LASSWELL & I. VLABLC, LAW APD PLSLIC

ORDER

It is appropriate to examine for a moment the sources from which the data is collected. The primary murce is electronic emissions from the target state. Basically the observed state operates electronic equipment a8 part of its defensive network. The purpose of the equipment may be to provide communication between elements of the gorwrnment or to search for the presence of hostile forces. Sormal operation of this equipment emits electro-magnetic radiation generally into space." Therefore it i s narmal for the signal to be "receiveable" by more than just the intended target. The area of reception is influenced by the type of antennae, by the wavelength of the radiation and by the atmospheric conditions existing at the time of transmission and reception.'. The information thus obtained can be used for a number of purposes." It enables the collecting state to break the target state's codes and hence to "read" encoded transmission; to determine the capabilities of the defensive equipment 80 that in the event of hostilities between the two states, attacking farces could circumvent such defenses: to determine the political and military posture of the target state: and to determine a successful invasion plan.

It ia clear that the states of the world are aware that the signals from this equipment reach beyond the intended receiver and even beyond the boundaries of them respective states. The best evidence of this knowledge is the widespread use of codes and "scramblers" to camouflage the meaning or source of the

It is impossible to believe therefore that the states ezpeet these transmissions to remain "private."

Surveillance forces also visually observe the coastline noting particularly the locations of military installations and natural defenses or weaknesses. Further, hydrographic information is collected ta facilitate possible submarine, mine laping or amphibious operations. It 1s dear that these reconnaissance activities penetrate to the "err heart of the defenses of .Q state and its national security. Thereby the tnrget state is mlnerable *O in any

adversary situation with the gat: wing state.

SURVEILLANCE

111. THE LEGAL SETTIXG

A. CLASSIFICATION OF WATERS

International law recognizes four primary divisions of the waters of the globe which are entitled internal waters,*' territorial seas,21 the contiguous zone *% and the high seas?. As we shall see in more detail these divisions of the waters of the world reflect the belief that man is inoapable of physically...