SURVEYS IN SWEDEN'S EEZ

C O N F I D E N T I A L STATE 092114 E.O. 12356: DECL: OADR TAGS: PHSA MARR PBTS PREL TPHY SW SUBJECT: SURVEYS IN SWEDEN'S EEZ REF: (A) STOCKHOLM 01951, (B) USDAO STOCKHOLM 061125Z APR 94, (C) NAVOCEANO STENNIS SPACE CENTER MS 040500Z MAR 94, (D) 89 STATE 122770 ¶1. (U) THIS IS AN ACTION CABLE IN RESPONSE TO REFTEL (A). SEE PARAGRAPH 2. ¶2. (C) SUMMARY AND ACTION REQUESTED: USNS KANE IS CONDUCTING UNCLASSIFIED MILITARY SURVEY OPERATIONS, NOT MARINE SCIENTIFIC RESEARCH (MSR),IN THE EEZS OF VARIOUS BALTIC STATES INCLUDING SWEDEN. KANE IS MEASURING CURRENTS AND BOTTOM PROFILES, AND COLLECTING WATER AND BOTTOM SAMPLES, AT VARIOUS LOCATIONS FOR MILITARY PURPOSES. MILITARY SURVEYS ARE NOT SUBJECT TO COASTAL STATE CONTROL. KANE WILL RETURN TO THE SWEDISH EEZ TO CONTINUE ITS SURVEY ON OR ABOUT APRIL 16. DRAWING ON THE TALKING POINTS IN PARAGRAPH 5, EMBASSY MAY DELIVER TO APPROPRIATE GOS OFFICIALS THE PAPER IN PARAGRAPH 6 WHICH PROVIDES A DETAILED EXPLANATION OF THE LEGAL DIFFERENCES BETWEEN SURVEYS AND MARINE SCIENTIFIC RESEARCH (MSR) AND WORLDWIDE USG POLICY AND PRACTICE WITH RESPECT TO MILITARY SURVEYS. END SUMMARY AND ACTION REQUEST. ¶3. (C) DEPARTMENT APPRECIATES EMBASSY'S VIGOROUS AND ARTICULATE REACTIONS AND THOUGHTFUL ANALYSIS OF THE SITUATION REPORTED REFTELS (A) AND (B) REGARDING THE UNEXPECTED SWEDISH REACTION TO USNS KANE'S SURVEY ACTIVITIES IN ITS EEZ (REFTEL (C)). WE HAVE PREPARED A DETAILED LEGAL ANALYSIS OF THE SITUATION WHICH IS SET OUT IN THE PAPER IN PARAGRAPH 6 THAT MAY BE SHARED WITH APPROPRIATE GOS OFFICIALS. ¶4. (C) USNS KANE IS SCHEDULED TO COMPLETE ITS PORT VISIT IN DENMARK ON 8 APRIL 1994 AND TO ENTER THE WESTERN WATERS OF THE SWEDISH EEZ TO CONTINUE MILITARY SURVEY ACTIVITIES ON OR ABOUT 16 APRIL. KANE WILL MEASURE CURRENTS AND BOTTOM PROFILES, AND WILL COLLECT WATER AND BOTTOM SAMPLES, INCLUDING CORES, AT VARIOUS LOCATIONS FOR MILITARY PURPOSES. IF CHALLENGED DURING THESE ACTIVITIES, KANE HAS BEEN DIRECTED TO RESPOND (QUOTE) I AM CONDUCTING MILITARY SURVEY ACTIVITIES CONSISTENT WITH INTERNATIONAL LAW AS REFLECTED IN THE 1982 LAW OF THE SEA CONVENTION. (UNQUOTE) ¶5. (C) BEGIN TALKING POINTS: -- I WOULD LIKE TO PROVIDE YOU A PAPER THAT DESCRIBES THE U.S. POSITION ON SURVEY ACTIVITIES IN EXCLUSIVE ECONOMIC ZONES (EEZ). -- THIS PAPER DETAILS WHY THE ACTIVITIES OF THE USNS KANE, A U.S. NAVAL AUXILIARY, IN YOUR EEZ OVER THE PAST WEEK ARE FULLY CONSISTENT WITH INTERNATIONAL LAW AND OUR UNDERSTANDING OF SWEDISH LAW. ; -- WE AGREE THAT A COASTAL STATE MAY REQUIRE ANYONE SEEKING TO CONDUCT MARINE SCIENTIFIC RESEARCH (MSR) IN THE COASTAL STATE'S EEZ OBTAIN APPROVAL IN ADVANCE. HOWEVER, AS THIS PAPER MAKES CLEAR, THE KANE'S MILITARY SURVEY ACTIVITIES ARE NOT MSR. -- THE MISSION OF THE USNS KANE IN THE SWEDISH EEZ IS TO MEASURE CURRENT AND BOTTOM PROFILES, AND TO COLLECT WATER AND BOTTOM SAMPLES, INCLUDING CORES, AT VARIOUS LOCATIONS FOR MILITARY PURPOSES. -- THE PURPOSE OF THIS MILITARY SURVEY IS TO SUPPORT SECURITY IN THE BALTIC SEA, AN ISSUE ON WHICH THE U.S. AND SWEDEN SHARE A COMMON CONCERN. -- SUCH ACTIVITIES ARE MILITARY SURVEY ACTIVITIES AND AS SUCH CAN BE UNDERTAKEN IN THE EEZ OF A COASTAL NATION WITHOUT PRIOR NOTIFICATION OR APPROVAL BY THE NATION. -- WE WANT TO REACH A SHARED UNDERSTANDING WITH YOU ON THIS ISSUE. HOWEVER, WE MUST EMPHASIZE THAT OUR MILITARY SURVEY OPERATIONS ARE CONDUCTED CONSISTENT WITH INTERNATIONAL LAW AND ARE CONDUCTED WORLDWIDE ON THAT BASIS. WE PLAN TO CONTINUE OUR EEZ SURVEY OPERATIONS, INCLUDING THAT OF THE KANE, ACCORDINGLY. -- WE HOPE THAT THIS PAPER PROVIDES YOU WITH THE LEGAL FRAMEWORK TO UNDERSTAND AND ACCEPT OUR POSITION. WE ARE AVAILABLE TO DISCUSS THIS FURTHER WITH YOU IF YOU WISH. IF ASKED WHETHER THE USG IS WILLING TO SHARE THE DATA COLLECTED, YOU SHOULD RESPOND THAT THE USG DOES NOT SHARE DATA COLLECTED ON A MILITARY SURVEY AS A CONDITION OF ENTRY INTO THE EEZ. HOWEVER, THERE ARE ESTABLISHED MECHANISMS FOR DATA EXCHANGES BETWEEN OUR TWO GOVERNMENTS. (FYI: EMBASSY MUST AVOID IMPLYING ANY USG COMMITMENT TO SHARE THE DATA COLLECTED IN THIS SURVEY BY THE KANE. END FYI) IF ASKED WHETHER THE KANE PLANS TO CONTINUE OPERATIONS IN THE EEZ OFF SWEDEN'S WESTERN COAST, YOU SHOULD RESPOND THAT THE KANE WILL CONTINUE ITS MILITARY SURVEY OPERATIONS WITHIN THE SWEDISH WESTERN EEZ NEXT WEEK. IF PRESSED TO SEND THE KANE BACK INTO THE EEZ TO RECOVER THE CURRENT METERS, YOU SHOULD RESPOND THAT THE KANE WILL RETRIEVE THEM WITHIN 30 DAYS. YOU SHOULD STATE THESE CURRENT METERS ARE NOT PERMANENTLY FIXED MONITORING FACILITIES, AS ALLEGED BY GOS OFFICIALS, BUT ARE METERS THAT ARE COLLECTING DATA ON BALTIC CURRENTS AND WILL BE RETRIEVED TO OBTAIN THE DATA COLLECTED. IF PRESSED THAT CORING IS MSR, YOU SHOULD RESPOND THAT CORING ACTIVITIES FOR RESEARCH ARE MSR, BUT CORING ACTIVITIES FOR MILITARY PURPOSES CONSTITUTE A MILITARY SURVEY ACTIVITY. YOU MAY EXPLAIN THAT, WHILE THE MEANS OF DATA COLLECTION USED IN MILITARY SURVEYS MAY SOMETIMES BE THE SAME AS THAT USED IN MSR, INFORMATION FROM SUCH ACTIVITIES, REGARDLESS OF SECURITY CLASSIFICATION, IS INTENDED NOT FOR USE BY THE GENERAL SCIENTIFIC COMMUNITY, BUT BY THE MILITARY. END TALKING POINTS. ¶6. (U) BEGIN TEXT: SURVEY ACTIVITIES IN THE EXCLUSIVE ECONOMIC ZONE SUMMARY -------------- THE UNITED STATES RECOGNIZES THE RIGHT OF SWEDEN TO REQUIRE PRIOR PERMISSION FOR FOREIGN SHIPS TO CONDUCT MARINE SCIENTIFIC RESEARCH (MSR) IN ITS EXCLUSIVE ECONOMIC ZONE (EEZ). THE UNITED STATES IS PLEASED TO PROVIDE THE FOLLOWING EXPLANATION WHY HYDROGRAPHIC SURVEYS AND MILITARY SURVEY ACTIVITIES ARE NOT MSR AND DO NOT REQUIRE PRIOR NOTIFICATION TO OR THE PERMISSION OF THE COASTAL STATE BEFORE OTHER STATES MAY CONDUCT SUCH SURVEYS IN THE EEZ. THE LAW OF THE SEA CONVENTION -------------- , -------------- INTERNATIONAL LAW, AS REFLECTED IN THE 1982 UNITED NATIONS CONVENTION ON THE LAW OF THE SEA (LOS CONVENTION), AUTHORIZES COASTAL STATES TO CLAIM LIMITED RIGHTS AND JURISDICTION IN AN EEZ. THE JURISDICTIONAL RIGHTS RELATE PRIMARILY TO THE EXPLORATION, EXPLOITATION, AND CONSERVATION OF NATURAL RESOURCES, MSR, AND THE MARINE ENVIRONMENT. BEYOND THE TERRITORIAL SEA (IN WHICH THE COASTAL STATE ENJOYS FULL SOVEREIGNTY),ALL STATES ENJOY THE FREEDOMS OF NAVIGATION AND OVERFLIGHT AND OTHER RELATED USES OF THE SEA WITHIN THE EEZ, PROVIDED THAT THEY DO SO WITH DUE REGARD TO THE RIGHTS OF THE COASTAL STATE AND OTHER STATES. SEE ARTICLE 58 OF THE LOS CONVENTION. SURVEY ACTIVITIES VS. MARINE SCIENTIFIC RESEARCH -------------- , -------------- --- THE RIGHTS ALL STATES ENJOY INCLUDE THE RIGHT TO CONDUCT SURVEY ACTIVITIES WITHIN THE EEZ. SURVEY ACTIVITIES ARE NOT MSR. THE LOS CONVENTION DISTINGUISHES CLEARLY BETWEEN THE CONCEPTS OF "RESEARCH" AND "MSR" ON THE ONE HAND AND "HYDROGRAPHIC SURVEYS" AND "SURVEY ACTIVITIES" ON THE OTHER HAND. ARTICLE 19(2)(J) OF THE LOS CONVENTION INCLUDES "RESEARCH OR SURVEY ACTIVITIES" AS INCONSISTENT WITH INNOCENT PASSAGE IN THE TERRITORIAL SEA. ARTICLE 21(1)(G) AUTHORIZES THE COASTAL STATE TO ADOPT LAWS AND REGULATIONS, IN CONFORMITY WITH THE PROVISIONS OF THE CONVENTION AND OTHER RULES OF INTERNATIONAL LAW, RELATING TO INNOCENT PASSAGE THROUGH THE TERRITORIAL SEA IN RESPECT OF "MARINE SCIENTIFIC RESEARCH AND HYDROGRAPHIC SURVEYS". ARTICLE 40, ENTITLED "RESEARCH AND SURVEY ACTIVITIES," PROVIDES THAT IN TRANSIT PASSAGE THROUGH STRAITS USED FOR INTERNATIONAL NAVIGATION, FOREIGN SHIPS, INCLUDING "MARINE SCIENTIFIC RESEARCH AND HYDROGRAPHIC SURVEY SHIPS", MAY NOT CARRY OUT "ANY RESEARCH OR SURVEY ACTIVITIES" WITHOUT THE PRIOR AUTHORIZATION OF THE STATES BORDERING STRAITS. THE SAME RULE APPLIES TO SHIPS ENGAGED IN ARCHIPELAGIC SEA LANES PASSAGE (ARTICLE 54). ON THE OTHER HAND, PART XIII OF THE LOS CONVENTION FULLY REGULATES MARINE SCIENTIFIC RESEARCH; IT DOES NOT REFER TO SURVEY ACTIVITIES AT ALL. ARTICLE 246 OF THE LOS CONVENTION PROVIDES THAT COASTAL STATES, IN THE EXERCISE OF THEIR JURISDICTION WITHIN THE EEZ, HAVE THE RIGHT TO REGULATE, AUTHORIZE AND CONDUCT MSR IN ACCORDANCE WITH THE RELEVANT PROVISIONS OF THE CONVENTION. IT SPECIFIES THAT MSR IN THE EEZ SHALL BE CONDUCTED WITH THE CONSENT OF THE COASTAL STATE. SWEDEN HAS SO PROVIDED IN PARAGRAPH 9 OF LAW SFS 1992:1140. AND WHILE THE CONVENTION, BY ITS TERMS, LIMITS SURVEY ACTIVITIES DURING PASSAGE IN THE TERRITORIAL SEA, INTERNATIONAL STRAITS AND ARCHIPELAGIC SEA LANES, THE CONVENTION DOES NOT LIMIT THE ACTIVITIES OF SURVEY SHIPS IN THE EEZ. RATHER, THE CONDUCT OF SURVEYS IN THE EEZ IS AN EXERCISE OF THE FREEDOMS OF NAVIGATION AND OTHER INTERNATIONALLY LAWFUL USES OF THE SEA RELATED TO THOSE FREEDOMS, SUCH AS THOSE ASSOCIATED WITH THE OPERATIONS OF SHIPS, WHICH ARTICLE 58 OF THE LOS CONVENTION GUARANTEES TO ALL STATES. INDEED, SWEDEN HAS RECOGNIZED THIS RIGHT IN PARAGRAPH 10 OF LAW SFS 1992:1140, WHICH IN ENGLISH TRANSLATION READS "THIS LAW, AS WELL AS THE PROVISIONS AND CONDITIONS WHICH ARE TRANSMITTED IN SUPPORT OF THE LAW. SHALL NOT CONTAIN ANY RESTRICTION OF THE EXISTING RIGHTS IN ACCORDANCE WITH INTERNATIONAL LAW FOR FREEDOM OF NAVIGATION IN THE EXCLUSIVE ECONOMIC ZONE, FOR OVERFLIGHT OF THE ZONE, OR FOR PLACEMENT OF CABLES AND PIPELINES IN THE ZONE, OR FOR ANY OTHER RIGHTS WHICH ARE COMMONLY ACCEPTED PRINCIPLES OF INTERNATIONAL LAW." THIS CONCLUSION, THAT MSR IS DISTINCT FROM SURVEY ACTIVITIES, IS SUPPORTED BY OTHER RESPECTED PUBLICATIONS ON THIS SUBJECT. FOR EXAMPLE, A 1991 PUBLICATION PREPARED BY THE UN OFFICE FOR OCEAN AFFAIRS AND THE LAW OF THE SEA, ENTITLED "THE LAW OF THE SEA: MARINE SCIENTIFIC RESEARCH: A GUIDE TO THE IMPLEMENTATION OF THE RELEVANT PROVISIONS OF THE UNITED NATIONS CONVENTION ON THE LAW OF THE SEA" (UN PUBLICATION SALES NO. E.91.V.3),NOTES THAT "'SURVEY ACTIVITIES' ... ARE PRIMARILY DEALT WITH IN OTHER PARTS ... OF THE CONVENTION RATHER THAN IN PART XIII. THIS COULD INDICATE THAT THESE ACTIVITIES DO NOT FALL UNDER THE REGIME OF PART XIII." (PAGE 1). PROFESSOR ALFRED H.A. SOONS, DIRECTOR OF THE NETHERLANDS INSTITUTE FOR THE LAW OF THE SEA, IN HIS BOOK "MARINE SCIENTIFIC RESEARCH AND THE LAW OF THE SEA" (1982),HAS WRITTEN: "FROM ARTICLES 19, 21 AND 40, WHICH USE THE TERM 'HYDROGRAPHIC SURVEYING' SEPARATELY FROM 'RESEARCH', IT FOLLOWS THAT THE TERM "MARINE SCIENTIFIC RESEARCH'. FOR THE PURPOSES OF THE DRAFT CONVENTION, DOES NOT COVER HYDROGRAPHIC SURVEYING ACTIVITIES." (PAGE 125) LATER IN THE SAME BOOK, PROFESSOR SOONS WROTE: "WITH RESPECT TO HYDROGRAPHIC SURVEYING (AN ACTIVITY WHICH IS NOT TO BE CONSIDERED MARINE SCIENTIFIC RESEARCH, ALTHOUGH IT IS SOMEWHAT SIMILAR TO IT ...),IT IS SUBMITTED THAT THIS ACTIVITY, WHEN IT IS CONDUCTED FOR THE PURPOSE OF ENHANCING THE SAFETY OF NAVIGATION ... , MUST BE REGARDED AS AN INTERNATIONALLY LAWFUL USE OF THE SEA ASSOCIATED WITH THE OPERATIONS OF SHIPS ... IN ACCORDANCE WITH ARTICLE 58, AND CAN THEREFORE BE CONDUCTED FREELY IN THE EXCLUSIVE ECONOMIC ZONE....." (PAGE 157) DEFINITIONS -------------- THE LOS CONVENTION DOES NOT DEFINE THE TERMS "MARINE SCIENTIFIC RESEARCH", "SURVEY ACTIVITIES", "HYDROGRAPHIC SURVEY", OR "MILITARY SURVEY". HOWEVER, THE CONCEPTS ARE DISTINCT. THE UNITED STATES ACCEPTS THAT "MARINE SCIENTIFIC RESEARCH" IS THE GENERAL TERM MOST OFTEN USED TO DESCRIBE THOSE ACTIVITIES UNDERTAKEN IN THE OCEAN AND COASTAL WATERS TO EXPAND SCIENTIFIC KNOWLEDGE OF THE MARINE ENVIRONMENT. MSR INCLUDES OCEANOGRAPHY, MARINE BIOLOGY, FISHERIES RESEARCH, SCIENTIFIC OCEAN DRILLING AND CORING, GEOLOGICAL/GEOPHYSICAL SCIENTIFIC SURVEYING, AS WELL AS OTHER ACTIVITIES WITH A SCIENTIFIC PURPOSE. THE GENERALLY ACCEPTED MODERN INTERNATIONAL INTERPRETATION OF "HYDROGRAPHIC SURVEY", WHICH IS SHARED BY THE UNITED STATES, IS TO OBTAIN INFORMATION FOR THE MAKING OF NAVIGATIONAL CHARTS AND SAFETY OF NAVIGATION. IT INCLUDES DETERMINATION OF ONE OR MORE OF SEVERAL CLASSES OF DATA IN COASTAL OR RELATIVELY SHALLOW AREAS--DEPTH OF WATER, CONFIGURATION AND NATURE OF THE NATURAL BOTTOM, DIRECTIONS AND FORCE OF CURRENTS, HEIGHTS AND TIMES OF TIDES AND WATER STAGES, AND HAZARDS FOR NAVIGATION--FOR THE PRODUCTION OF NAUTICAL CHARTS AND SIMILAR PRODUCTS TO SUPPORT SAFETY OF NAVIGATION. THE UNITED STATES CONSIDERS THAT MILITARY SURVEYS REFER TO ACTIVITIES UNDERTAKEN IN THE OCEAN AND COASTAL WATERS INVOLVING MARINE DATA COLLECTION (WHETHER OR NOT CLASSIFIED) FOR MILITARY PURPOSES. MILITARY SURVEYS CAN INCLUDE OCEANOGRAPHIC, MARINE GEOLOGICAL, GEOPHYSICAL, CHEMICAL, BIOLOGICAL AND ACOUSTIC DATA. EQUIPMENT USED CAN INCLUDE FATHOMETERS, SWATH BOTTOM MAPPERS, SIDE SCAN SONARS, BOTTOM GRAB AND CORING SYSTEMS, CURRENT METERS AND PROFILERS. WHILE THE MEANS OF DATA COLLECTION USED IN MILITARY SURVEYS MAY SOMETIMES BE THE SAME AS THAT USED IN MSR, INFORMATION FROM SUCH ACTIVITIES, REGARDLESS OF SECURITY CLASSIFICATION, IS INTENDED NOT FOR USE BY THE GENERAL SCIENTIFIC COMMUNITY, BUT BY THE MILITARY. MILITARY SURVEYS ARE NOT SPECIFICALLY ADDRESSED IN THE LOS CONVENTION AND THERE IS NO LANGUAGE STATING OR IMPLYING THAT MILITARY SURVEYS MAY BE REGULATED IN ANY MANNER BY COASTAL STATES OUTSIDE THEIR TERRITORIAL SEA OR ARCHIPELAGIC WATERS. THE UNITED STATES THEREFORE CONSIDERS IT TO BE FULLY CONSISTENT WITH THE LOS CONVENTION THAT SUCH SURVEYS ARE A HIGH SEAS FREEDOM AND THE UNITED STATES RESERVES THE RIGHT TO ENGAGE IN MILITARY SURVEYS ANYWHERE OUTSIDE FOREIGN TERRITORIAL SEAS AND ARCHIPELAGIC WATERS. TO PROVIDE PRIOR NOTICE OR REQUEST PERMISSION WOULD CREATE AN ADVERSE PRECEDENT FOR RESTRICTIONS ON MOBILITY AND FLEXIBILITY OF MILITARY SURVEY OPERATIONS. THESE DEFINITIONS CLEARLY DISTINGUISH BETWEEN MSR, WHICH THE COASTAL STATE CAN REGULATE, AND HYDROGRAPHIC SURVEY AND MILITARY SURVEY ACTIVITIES, WHICH ARE FREEDOMS THE COASTAL STATE CANNOT REGULATE OUTSIDE ITS TERRITORIAL SEA. MILITARY ACTIVITIES -------------- THERE MAY BE SOME QUESTION AS TO THE CONDUCT OF "MILITARY ACTIVITIES" IN THE EEZ WITHOUT COASTAL STATE CONSENT. IN THE VIEW OF THE UNITED STATES, THE LOS CONVENTION RECOGNIZES THAT ALL STATES HAVE THE RIGHT TO CONDUCT MILITARY ACTIVITIES WITHIN THE EEZ, PROVIDED THAT THEY DO SO WITH DUE REGARD TO THE RIGHTS OF THE COASTAL STATE AND OTHER STATES. APPROPRIATE ACTIVITIES INCLUDE LAUNCHING AND LANDING OF AIRCRAFT, OPERATING MILITARY DEVICES, INTELLIGENCE COLLECTION, WEAPONS EXERCISES, AND MILITARY SURVEYS. THERE IS NO GENERAL COMPETENCE OF THE COASTAL STATE OVER MILITARY ACTIVITIES IN THE EEZ. IT FOLLOWS THAT MILITARY SURVEY ACTIVITIES CONDUCTED OUTSIDE FOREIGN TERRITORIAL SEAS ARE NOT SUBJECT TO COASTAL STATE REGULATION. SEE ARTICLE 56 OF THE LOS CONVENTION AND OXMAN, THE REGIME OF WARSHIPS UNDER THE UNITED NATIONS CONVENTION ON THE LAW OF THE SEA, VIRGINIA JOURNAL OF INTERNATIONAL LAW, VOL. 24, AT PAGE 847 (1984). U.S. MILITARY SURVEY VESSELS -------------- THE USNS KANE IS ONE OF A CLASS OF U.S. NAVAL AUXILIARY VESSELS (T-AGS) DESIGNED FOR AND OPERATING AS MILITARY SURVEY VESSELS. THE U.S. GOVERNMENT EXERCISES OUR HIGH SEAS FREEDOMS WITH RESPECT TO MILITARY SURVEY ACTIVITY IN THE EEZ OF COASTAL STATES WORLDWIDE CONSISTENT WITH INTERNATIONAL LAW AS REFLECTED IN THIS PAPER. CHRISTOPHER