Table of contents

1. Summary

1. Transit of nuclear-armed and powered vessels in the South Pacific Nuclear Free Zone
2. Criminal Responsibility

1. Summary

1. Summary of Submission

1. Territorial Waters

Passage of ships through territorial waters is governed by balancing the rights of maritime powers to innocent passage and the rights of Coastal States to their security and territorial integrity. These rights are both customary and codified in the United Nations Convention on the Law of the Sea (UNCLOS).

New Zealand could prohibit the transit of vessels carrying radioactive materials and non-military nuclear-powered ships on the grounds that such shipments must conform to special precautionary measures established by international agreements, and that no satisfactory agreements have been reached. New Zealand could prohibit the passage of nuclear-powered warships on the grounds that such passage was unnecessary for direct transit and thus not innocent. New Zealand could prohibit the transit of nuclear-armed vessels on the grounds that deployment of nuclear weapons in the territorial waters would be in violation of international law as affirmed by the International Court of Justice Advisory Opinion of 8 July 1996.

ii) Exclusive Economic Zone

Passage of ships through Exclusive Economic Zones is also governed by balancing the rights of coastal States and maritime powers. While coastal States have less authority over their EEZs than over their territorial waters, UNCLOS affirms sovereign rights for the purpose of conserving and managing the natural resources. This provides some ground for prohibiting activities, including passage, which comprise a real threat to the natural resources. Thus New Zealand could attempt to prohibit the passage of radioactive materials and nuclear-powered ships.

The principle of peaceful purposes applies to the EEZ as it does to territorial waters. New Zealand could prohibit the entry or passage of nuclear armed vessels on the grounds that deployment of nuclear weapons in the exclusive economic zone would be in violation of international law as affirmed by the International Court of Justice advisory opinion of 1996.

Customary practice and international law relating to territorial waters and Exclusive Economic Zones is not static. The recognition of sovereign rights within both has expanded even in the past half century. New actions by coastal States to enact rights will inevitably be resisted by the maritime powers, but, if reasonable and in the interests of most coastal States, are likely to become the norm over time.

The provisions of the Bill are consistent with the principles of coastal State security and protection recognised in UNCLOS, and are also consistent with specific provisions of UNCLOS providing for such security and protection. There is some room for doubt as to whether these principles and provisions outweigh the principles and provisions protecting freedom of navigation and right of innocent passage for all circumstances proscribed in the Bill. Enacting the Bill would act as both clarify the rights claimed by coastal States, and be a norm setting precedent for the enactment of such rights by other coastal States and the ultimate recognition of these by the maritime powers.

Thus IALANA Aotearoa New Zealand supports the Bill in general terms.

b) List of amendments and recommendations

1. The title be amended to "Aotearoa-New Zealand Nuclear Free Zone Extension Act," and the title of the principal act to be amended to "Aotearoa-New Zealand Nuclear Free Zone, Disarmament and Arms Control Act."
2. Clause 3 be amended to read:

The purpose of this Act is to extend the New Zealand Nuclear Free Zone to include the exclusive economic zone in addition to the land, territory, inland waters, internal waters and territorial sea of New Zealand, and to prohibit the transit of nuclear weapons, high level nuclear waste and nuclear-powered ships through the entire zone.

3. Clause 4 to include the definition: ‘Person’ means natural or legal person
4. the following language to be added to the beginning of clause 9:

Right of innocent passage and freedom of navigation

Subject to the provisions of this Act, ships of all States, whether coastal or land-locked, shall enjoy the right of innocent passage through the territorial sea and freedom of navigation in New Zealand’s exclusive economic zone.

5. Section 5 should be amended by:

1. Adding in the title the words "and control" after "acquisition"
2. Deleting in part (2) the words "and who is a servant or agent of the Crown"
3. Adding a part (3):

"Any threat or use of nuclear weapons, by any person, consistent with the determination of the International Court of Justice Advisory Opinion on the legality of the threat or use of nuclear weapons, paragraphs 105 (c), (d) and (e), shall be considered an international crime."

We also recommend that the New Zealand government:

1. Moves that the South Pacific Forum, the administering body for the South Pacific Nuclear Free Zone (SPNFZ) Treaty, adopt a declaration that, in light of the ICJ opinion, deployment of nuclear weapons within the SPNFZ is illegal.
2. Proposes an additional protocol (s) to the SPNFZ Treaty under which nuclear weapon States agree not to navigate nuclear weapons, [and other States agree not to transit radioactive waste] through the entirety of the zone, including the High Seas contained within the zone.
3. Introduces a resolution to the United Nations seeking authoritative support in the form of an advisory opinion from the International Court of Justice on the legal status of the deployment of nuclear weapons in regional nuclear weapon free zones.

2. Nuclear Materials

a) General principles and laws

The 1982 United Nations Convention on the Law of the Sea and its affiliated network of treaties and principles of customary international law recognise specific obligations to which users of the sea must adhere, and rights of coastal States to protection of their territorial waters and exclusive economic zones from maritime pollution.

The Stockholm Declaration on the Human Environment affirms a responsibility on States "to ensure that activities within their jurisdiction and control do not cause damage to the environment of other States or areas beyond the limits of national jurisdiction." South Africa cited this principle as one of the reasons underlying its opposition to the journey of the nuclear materials vessel Pacific Teal.

The Rio Declaration on Environment and Development requires prior and timely consultation at an early stage and in good faith whenever the activity of one nation may have a significant adverse transboundary effect. The gravity of risk should an accident occur with a shipment of nuclear material brings such shipments into the scope of this principle. Consultation in good faith would require the development of practices which are consistent with the rights of coastal states to environmental protection. Such practices should thus conform to a coastal States decision to prohibit passage of such ships if it determines the risk warrants this.

The 1989 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal requires States transporting hazardous wastes to notify states through which the waste is travelling (Article 6.4), and it appears to allow the transit States to object to such transport. However, Japan has filed a declaration stating that it understands that consent for transit of hazardous wastes is not required.

The 1990 Code of Practice on the International Transboundary Movement of Radioactive Waste appears to provide rights of coastal States to prohibit transit of such shipments:

It is the sovereign right of every State to prohibit the movement of radioactive waste into, from or through its territory. (Principle 3)

Every State should take the appropriate steps necessary to ensure that, subject to the relevant norms of international law, the international transboundary movement of radioactive waste takes place only with the prior notification and consent of the sending, receiving and transit States in accordance with their respective laws and regulations. (Principle 5)

However it could be argued that these provisions and Article 6.4 of the Basel Convention only apply to territorial waters:

b) Precautionary Principle

States may and should apply the precautionary principle in exercising their rights and responsibilities under the Law of the Sea. This is reflected in Agenda 21 which notes that:

States, in accordance with the provisions of the United Nations Convention on the Law of the Sea on protection and preservation of the marine environment, commit themselves, in accordance with their policies, priorities and resources, to prevent, reduce and control degradation of the marine environment so as to maintain and improve its life support and productive capacities. To this end, it is necessary to:

1. Apply preventive, precautionary and anticipatory approaches so as to avoid degradation of the marine environment, as well as to reduce the risk of long-term or irreversible adverse effects upon it.

Van Dyke notes that "The precautionary principle has gained almost universal acceptance during the past decade as the basic rule that should govern activities that affect the ocean environment."

The World Charter for Nature notes that:

Activities which are likely to pose a significant risk to nature shall be preceded by an exhaustive examination; their proponents shall demonstrate that expected benefits out-weigh potential damage to nature, and where potential adverse effects are not fully understood, the activities should not proceed.

Some commentators suggest that the precautionary principle requires all users of the ocean commons to develop alternatives to polluting or potentially damaging technologies. Van Dyke argues that the precautionary principle requires the exploration of alternatives to nuclear material shipments and thus to the practice of nuclear fuel reprocessing, using plutonium as a fuel and possibly even to nuclear power itself.

Chile cited the precautionary principle as a primary reason for banning the Pacific Pintail from its EEZ in 1994 and the Pacific Swan in 1998.

1. Territorial Waters

Article 2 of UNCLOS provides that:

1. The sovereignty of a coastal State extends, beyond its land territory and internal waters and, in the case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea, described as the territorial sea.
2. This sovereignty extends to the air space over the territorial sea as well as to its bed and subsoil.

Article 23 of UNCLOS provides that:

Foreign nuclear-powered ships and ships carrying nuclear or other inherently dangerous or noxious substances shall, when exercising their right of innocent passage through the territorial sea, carry documents and observe special precautionary measures established for such ships by international agreements.

Article 21 of UNCLOS provides that:

1. The coastal State may adopt laws and regulations, in conformity with the provisions of this convention and other rules of international law, relating to innocent passage through the territorial sea, in respect of all or any of the following:

… (d) the conservation of the living resources of the sea,…

(f) the preservation of the environment of the coastal State and the prevention, reduction and control of pollution thereof;

Article 25 of UNCLOS provides that:

The coastal State may, without discrimination in form or in fact among foreign ships, suspend temporarily in specified areas of its territorial sea the innocent passage of foreign ships if such suspension is essential for the protection of its security, including weapons exercises.

Article 21 affirms the right of New Zealand, and other coastal States, to adopt laws to protect the environment and marine life within their territorial waters. Article 25 affirms the right of New Zealand and other coastal States to prohibit passage of vessels which fail to comply with such regulations. UNCLOS is unclear on whether there is a right to adopt regulations prohibiting passage of all vessels carrying nuclear materials, or whether the right is restricted to that of prohibiting such vessels not conforming to safety measures. The fact that Article 25 only affirms a right to temporarily suspend the right of innocent passage, would support the latter perspective. However, the affirmation in Article 2 of UNCLOS of coastal State sovereignty over their territorial waters would support the former perspective.

Article 23 places additional restrictions on the right of passage. Even if the coastal State has not adopted precautionary regulations, nuclear powered vessels and those carrying nuclear materials are required to observe special precautionary measures established for such ships by international agreements. On the other hand, Article 21 would imply that if such international regulations are insufficient to protect the environment and marine life of a specific coastal State, it could adopt more stringent regulations.

To date there has not been international agreement on appropriate precautionary regulations for vessels carrying nuclear materials. New Zealand has been active in opposing the adoption of sub-standard regulations. In 1997 New Zealand blocked the adoption of two international treaties negotiated under IAEA auspices because they were setting inadequate safety and liability standards.

Thus New Zealand has a number of options including:

1. New Zealand could declare that no ships carrying hazardous nuclear materials will be permitted to transit New Zealand’s territorial waters until adequate international safety measures are concluded,
2. New Zealand could adopt its own stringent safety regulations and liability requirements and prohibit the passage of any vessels not in conformity with these regulations, or
3. New Zealand could adopt legislation prohibiting passage by all vessels carrying nuclear materials, regardless of safety precautions and liability measures to which they conform.

Option i) is the most defensible legally. Option ii) is feasible, but could be challenged by the Nuclear Materials Transport States (NMTS) if they believe the safety regulations are designed not to protect New Zealand but to prevent innocent passage. Article 24 of UNCLOS requires that coastal States shall not impose requirements on foreign ships which have the practical effect of denying or impairing the right of innocent passage. However, such a challenge could be adequately countered if New Zealand’s regulations are based on what New Zealand and other States have consistently called for in international fori.

The Bill proposes option iii), with the prohibition extended to the EEZ. This would provide the greatest protection for New Zealand. It would also face the strongest opposition from NMTS. Although there is no requirement for NMTS to pass through New Zealand waters, they do pass through territorial waters of other coastal States, in particular those which are part of international straits. New Zealand’s prohibition would act as a precedent which could be emulated by some of these States.

Option iii) could be argued on the grounds that the passage of nuclear materials is not innocent passage. UNCLOS holds that passage is innocent so long as it is not prejudicial to the peace, good order, or security of the coastal State (see section 4 (a)). Coastal States have been arguing that shipments of nuclear materials are prejudicial to their security, thus rendering the passage non-innocent. In 1970, Canada put forward a similar argument to explain the regulation of tanker traffic 100 miles from its Arctic coastline.

The legitimacy of option iii) is further discussed in the next section.

1. Exclusive Economic Zone

Article 56 (1) of UNCLOS, provides that:

In the exclusive economic zone, the coastal State has…b) jurisdiction as provided for in the relevant provisions of this Convention with regard to … iii) the protection and preservation of the marine environment.

Article 211 (5) of UNCLOS provides that:

Coastal States, for the purpose of enforcement as provided in section 6, may in respect of their exclusive economic zones adopt laws and regulations for the prevention, reduction and control of pollution from vessels…

These rights of coastal States are similar to protective rights in territorial waters. The major difference is that in territorial waters, vessels carrying nuclear materials must be in conformity with international regulations. This is not a requirement for navigation in EEZs. However, coastal States can apply such regulations on vessels navigating their EEZ, or other regulations. Thus the options open to New Zealand are similar to the options relating to passage through territorial waters.

As noted above, New Zealand is campaigning for strong international regulations on transport of nuclear materials. In the absence of agreed regulations, New Zealand could prohibit the passage of vessels carrying nuclear materials within their EEZ. UNCLOS does not specifically require vessels to conform to such regulations in the EEZ, but it does allow coastal States to adopt regulations consistent with international regulations. In the absence of regulations or where such regulations are inadequate, coastal States can adopt laws and regulations for prevention, reduction and control of pollution, but only after acceptance of these regulations by "the competent international organisation." This requirement would make it difficult, under UNCLOS, for New Zealand to unilaterally adopt regulations prohibiting vessels carrying nuclear materials in the EEZ.

However, UNCLOS is not the sole source of authority relating to laws of the sea. International law is not static. As evidence of this UNCLOS itself marks a progression in customary law in many areas including acceptance of the 200-mile Exclusive Economic Zone, which had not been recognised as recently as the 1958 Convention on the Law of the Sea.

Since adoption of UNCLOS, State practice has extended coastal State rights within their EEZs. Chile, for example, has asserted its rights to prevent the passage of vessels carrying nuclear waste, and attempted to enforce this right in 1998 by sending a naval vessel to challenge the British Nuclear Fuels ship Pacific Swan, which had entered its EEZ. Since that challenge, no vessels carrying nuclear materials have entered Chilean waters.

The New Zealand government has also been working to prevent vessels carrying nuclear materials from entering New Zealand’s EEZ. However, as opposed to the more confrontational approach of Chile, the government has been urging NMTS to voluntarily avoid navigation through our EEZs. In this, New Zealand has had some success. Minister of Foreign Affairs and Trade Phil Goff reports that "New Zealand presently has a de-facto 200-mile nuclear free zone, because nuclear-powered ships and those carrying nuclear materials have voluntarily respected it."

The fact that New Zealand has felt justified in requesting NMTS not to navigate the EEZ, and that fact that the NMTS have agreed to this, provides legitimacy to the claim that such protection of an EEZ is becoming part of the customary right of coastal States. Codifying this protection in national legislation would both affirm and strengthen this right.

2. Nuclear-Powered Ships

1. Territorial Waters

Articles 23 and 25 of UNCLOS apply to nuclear-powered vessels in the same way as to vessels carrying nuclear materials. Thus, New Zealand can prohibit passage of non-military nuclear-powered vessels until acceptable precautionary measures have been established (see Section 2 (a) above).

However UNCLOS provides sovereign immunity for warships and other government owned ships, from regulations protecting the marine environment (Article 236). The majority of nuclear-powered vessels are warships, and would thus not be able to be prohibited under Articles 23 and 25. On the other hand New Zealand could use additional elements of international law to prohibit their passage. Article 19 of UNCLOS provides that the following cannot be considered as innocent passage:

1. Any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal state…
2. Any exercise or practice with weapons of any kind…

1. Any other activity not having a direct bearing on passage.

The fact that the territorial waters of New Zealand are not part of any international strait or major sea-lane necessary for transit by the maritime nuclear powers would indicate that entry into New Zealand territorial waters by a nuclear powered warship would not be for the purposes of innocent passage but for other political or military reasons. The only exception to this would be a vessel in distress, for which special permission is provided for in the Bill. Thus New Zealand could prohibit passage of such vessels.

Nuclear-powered vessels have reportedly created greater threats to the environment from accidents and routine radiation releases than the transport of nuclear waste has to date (see Submission to the Foreign Affairs, Defence and Trade Select Committee by the Peace Foundation, Section 3 (b)). As such, there was strong public support for the prohibition of nuclear-powered warships in the NZ Nuclear Free Zone Act, and such support would likely extend to a prohibition in the territorial waters.

1. Exclusive Economic Zone

Under UNCLOS nuclear powered vessels entering territorial waters are required to conform to international safety and liability measures. However this is not the case for such ships entering EEZs. There is thus less basis for prohibiting their navigation in the EEZ as there is in the territorial waters.

However, all vessels entering the EEZs are required to adhere to the principle of peaceful purposes (See Section 4 below). It may be possible to argue that navigation of nuclear powered warships is in violation of this principle, but such an argument has not received widespread acceptance

 

 

2. Nuclear-Powered Warships and Sovereign Immunity.

The immunity provided under Article 236 to warships from regulations protecting the environment is contrary to the UNCLOS aim of balancing environmental protection with commercial, military and other uses of the oceans. While some balance is maintained in UNCLOS with respect to commercial and other uses of the ocean and environmental protection, in the case of military and State sponsored activities there is no protection for the environment. While this approach is consistent with practices and domestic laws of some States, they would be in a minority. Nuclear testing, for example, was generally exempt from environmental regulations within the NWS, but was strongly opposed on environmental grounds by other States including New Zealand. Such opposition found legal support in the Nuclear Tests Case. Another example is the ocean dumping of nuclear waste – generally a State sponsored activity – which was opposed by the majority of States, such opposition resulting in a global ban on ocean dumping of nuclear waste.

Article 236 of UNCLOS thus represents a political compromise, necessary to achieve the support of the major military maritime powers, rather than a codification of a generally accepted customary norm allowing military and government exemption from environmental regulations. One could argue that there is in fact a growing customary norm supporting the application of environmental regulations to all nuclear activity in the oceans.

The fact that nuclear powered vessels have had a number of serious accidents impacting on marine environments, and creating a high degree of risk for current and future generations, would grant political impetus to an attempt to prohibit such vessels on customary law grounds.

2. Nuclear-Armed Warships

1. Territorial Waters

1. Suspension of innocent passage

Article 25 of UNCLOS provides that:

The coastal State may, without discrimination in form or in fact among foreign ships, suspend temporarily in specified areas of its territorial sea the innocent passage of foreign ships if such suspension is essential for the protection of its security, including weapons exercises…

Article 30 of UNCLOS provides that:

If any warship does not comply with the laws and regulations of the coastal State concerning passage through the territorial sea and disregards any request for compliance therewith which is made to it, the coastal State may require it to leave the territorial sea immediately.

New Zealand could adopt law prohibiting nuclear-armed warships in the territorial waters and suspend the innocent passage of such warships on the basis that they are a threat to the security of New Zealand. While Article 25 refers to temporary suspension, thus implying that a permanent prohibition of nuclear armed warships would not be legitimate, New Zealand could argue that such suspension is not on the warships themselves, but just on them when they carry deployed nuclear weapons, and that such prohibition is thus temporary and would be lifted once it could be determined that they no longer carry such weapons.

New Zealand could declare that passage of nuclear armed warships is a threat to its security, considering the facts that:

1. the nuclear weapons deployed are generally on alert under policies of first use and thus there is a real risk that they could be used from within New Zealand’s territory,
2. the nuclear warships themselves would be a target if any nuclear conflict arises, thus drawing New Zealand into the line of fire in a nuclear war,
3. the risk of nuclear war is a threat to the security of all States regardless of the proximity of the nuclear weapons to the State, but New Zealand has a responsibility to do what it can, within its sovereign limitations, to prevent nuclear war.

While the prohibition of nuclear armed warships in light of UNCLOS Articles 25 and 30 would be possible, it would be making an uncustomary use of these articles. Article 25 is usually invoked by States conducting military exercises in their territorial waters and thus requiring temporary and exclusive use of a specified region. It would be unusual to apply this to all of the territorial sea and to an ongoing prohibition on a specified vessel or cargo.

Article 30 relates to rules and regulations which must be in conformity with other provisions of UNCLOS, and these generally relate to regulations on the mode of transit rather than a preclusion of transit of any type of ship. For example, UNCLOS Article 20 notes that "In the territorial sea submarines and other underwater vehicles are required to navigate on the surface and to show their flag."

There is another possibility for New Zealand to prohibit nuclear-armed warships under UNCLOS. Article 23 notes that;

Foreign nuclear-powered ships and ships carrying nuclear or other inherently dangerous or noxious substances shall, when exercising the right of innocent passage through the territorial sea, carry documents and observe special precautionary measures established for such ships by international agreements.

Nuclear weapons contain nuclear substances. Precautionary measures established for nuclear-armed ships are included in the Incidents at Sea Agreement. However, this agreement does not cover submarines, despite the fact that there have been a number of incidents at sea involving submarines. In addition, coastal States were not invited to participate in the development of these, or any other measures governing the passage of nuclear-armed ships. Thus, coastal States would be justified in suspending the right of innocent passage for nuclear-armed ships until international measures were negotiated and adopted with their participation.

This could be challenged on the basis of Article 236 which grants warships immunity from the provisions of UNCLOS relating to protection and preservation of the environment. However, New Zealand could argue that the precautionary measures referred to in Article 23 go beyond protection and preservation of the environment and include precautionary measures relating to security. In the case of nuclear weapons, the precautionary measures required by New Zealand relating to security from nuclear war, could include at a maximum the prohibition of deployed nuclear weapons, or more limited measures such as requiring the de-alerting and de-mating of nuclear warheads and their delivery vehicles, limits on yields of nuclear weapons permitted and adoption of no-first-use policies.

There are some difficulties with this approach, not the least of being that Article 23 was not intended to apply to nuclear weapons and that precautionary measures are usually meant to prevent accidents or limit the damage from accidents as opposed to the effects of intentional acts. In addition, a focus on precautionary measures could be seen as a way of making nuclear weapons ‘safe.’ New Zealand’s actions relating to safety from nuclear weapons should aim more towards achieving the implementation of legal obligations on non-use of nuclear weapons and their elimination, as opposed to making them ‘safe’ from accidents – a focus which could lend legitimacy to continuing possession.

Finally, New Zealand would have a much stronger case supporting a complete ban on the passage of nuclear-armed ships through its territorial waters by arguing that such passage is not innocent rather than by opting for a suspension-of-innocent-passage approach.

ii) Prevention of non-innocent passage

UNCLOS Article 25 holds that:

The coastal State may take the necessary steps in its territorial sea to prevent passage which is not innocent.

1. Passage of warships

Some writers argue that coastal States have a right to prohibit passage of any foreign warship, not only nuclear armed ones. As far back as 1927, Jessup argued that:

As to warships, the sound rule seems to be that they should not enjoy an absolute legal right to pass through a State’s territorial waters. As Mr Root has said: "Warships may not pass without consent into this zone because they threaten. Merchant ships may pass and repass because they do not threaten."

Anand, citing the 1958 Convention on the Territorial Sea and Contiguous Zone provision that passage is "innocent so long as it is not prejudicial to the peace, good order and security of the coastal States," notes that:

Because no specific criteria existed or could be established as to when a passage was prejudicial to the peace, good order and security of the coastal State, wide latitude was given to a coastal State to declare a passage non-innocent. …If the coastal State did decide that a particular passage by a foreign vessel was not innocent, under Article 16 (1), it might take the necessary steps in its territorial sea to prevent such passage."

Anand argues that "the legal situation concerning the innocent passage of warships through the territorial sea remains practically the same in the 1982 Convention as it was in the Geneva Convention in 1958."

States have differed over their views on this question. In response to a questionnaire at the 1930 Preparatory Committee of the Hague Codification Conference sixteen governments supported the right of passage for warships, while five, including the U.S., opposed. The U.S., which at the time held the view that "innocent passage existed primarily for commerce," reversed its position by the time the negotiations for UNCLOS had begun.

Anand notes that at the time of the 1958 Convention, "the majority of delegations did not want warships to have the same rights as other ships. In fact, it may be noted that a majority of states do require authorization and others require at least prior notification of transit of warships."

While the rights of coastal States to require prior authorisation and to prevent non-innocent passage affirm some rights to prohibit warships, this does not appear to include the passage of all warships, but is restricted to those where the coastal State can assert non-innocence.

UNCLOS Article 19 notes that:

Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State. Such passage shall take place in conformity with this Convention and with other rules of international law.

UNCLOS Article 19 continues that:

1. any other activity not having a direct bearing on passage.

The International Court of Justice concluded in 1949 that Albania could not restrict the right of innocent passage of UK warships through their territorial waters noting that there is a "generally admitted principle that States, in time of peace, have a right to send their warships through straits used for international navigation between two parts of the high seas, provided that the passage is innocent."

However, the ICJ only affirmed the right of innocent passage for warships through territorial waters which are part of straits connecting two parts of the high seas. For territorial waters not part of straits, such as most of New Zealand’s territorial waters, there is no need for foreign warships to transit through in order to reach another part of the high seas. With respect to the Cook Strait, alternative routes are available for warships to navigate from one part of the high seas to another without having to transit the strait, i.e. they could sail around either the North or South Island. Thus, it could be argued that any warship entering New Zealand’s territorial waters is engaging in an activity "not having a direct bearing on passage." While New Zealand can authorise entrance into territorial waters for any ship not directly transiting, e.g. warships of allies involved in joint military exercises or port visits, New Zealand could also prohibit passage of any foreign warship in its territorial waters as non-innocent if it was un-authorised.

1. Passage of nuclear-armed warships.

New Zealand would have even stronger grounds under Article 19 to prohibit the passage of nuclear-armed warships as being not innocent passage by arguing that such passage would be prejudicial to its peace, good order and security, and in violation of rules of international law, particularly in light of the 1996 Advisory Opinion of the International Court of Justice on the legality of the threat or use of nuclear weapons.

In an article written before the ICJ Advisory Opinion was rendered, one observer noted that innocent passage:

"…would include the passage of vessels with nuclear weapons. . . assuming that they are not otherwise illegal under international law. . . This question is the subject of requests for advisory opinion submitted to the International Court of Justice.

Legal opinion and State practice prior to the ICJ decision are divided regarding the issue of nuclear transit and innocent passage. Although "the right of innocent passage is generally well respected, considerable potential for differing interpretations of the content of the right remains, particularly when national security is at stake."

Some writers argue that passage of nuclear-armed warships would in general meet the criteria of innocent passage and cannot therefore be prohibited by coastal States. Beeby and Fyfe for example write:

"UNCLOS does indeed preserve the exercise by nuclear-powered and nuclear-armed ships of the rights of innocent passage and archipelagic sea lanes passage through the territorial sea and archipelagic waters. While certain rights to regulate the exercise of such passage are retained by coastal States, they do not extend to the right to prohibit such passage."

The United States considers passage of nuclear-armed warships a matter of national security and President Clinton has interpreted UNCLOS as preserving "the right of the U.S. military to use the world's oceans to meet national Security requirements." Some U.S. analysts have supported the notion that world stability and security require freedom of passage. In an article written during the cold war, noted US legal scholar Michael Reisman stated:

"Deterrence is an uncompromisable security necessity for all members of the world community. Where national claims are inconsistent with the regime that provides effective deterrence, they must yield to the inclusive interest, for minimum order is inescapably the preeminent common interest."

He adds that, "in many circumstances, it should be plain that coastal interests may be enhanced by not enlarging coastal competence. "

However, Reisman’s axiom that national claims must yield to common interest would arguably yield the opposite conclusion, i.e that national claims of necessity to deploy nuclear weapons must now yield to the common interest of the majority of States and peoples for the elimination of nuclear weapons. Such interest is expressed in numerous United Nations resolutions which call for complete nuclear disarmament and which are supported by overwhelming majorities of UN members. It is also expressed in public opinion polls, including in those countries which have nuclear weapons or are part of a nuclear alliance.

Such interest now has the weight of law following the ICJ’s affirmation that the threat or use of nuclear weapons is generally illegal, and the implications this decision has on passage of nuclear-armed vessels.

1. ICJ Opinion

The ICJ found that:

"The threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law."

The ICJ also found that it:

"cannot conclude definitely whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake."

The Court also concluded that, even in the extreme circumstance, a threat or use of nuclear weapons must comply with Articles 2 ( 4) and 51 of the UN Charter, and must also:

"be compatible with the requirements of international law applicable in armed conflict, particularly those of the principles and rules of international humanitarian law."

The general presumption on any threat or use of nuclear weapons is therefore that it is illegal unless it can be proven that it fits the criteria of "the extreme circumstance of self defence in which the very survival of a State would be at stake," that it complies with Articles 2 (4) and 51 of the UN Charter, and that it will not violate the humanitarian laws of war. If any one of these conditions is not met, then according to the ICJ opinion, the threat or use would be illegal.

A maritime nuclear power wishing to deploy nuclear weapons in the high seas, EEZ, or territorial waters of another state should therefore have to prove all of the above in each particular instance of deployment.

New Zealand is fully in support of the ICJ’s determination that the threat or use of nuclear weapons is generally illegal. In fact, New Zealand goes further in arguing that:

It is clear to New Zealand that the international community has come more and more strongly to view that no realistic scenario or case can any longer be mounted to support the proposition that the threat or use of nuclear weapons under any circumstance – and their testing – would be in conformity with international law.

2. Threat of use and the ICJ Opinion

- Nuclear weapons deployed on warships constitute a threat of use

The International Court of Justice treated threat of use as directly linked to the use of nuclear weapons:

"The notions of "threat" and "use" of force under Article 2, paragraph 4, of the Charter stand together in the sense that if the use of force itself in a given case is illegal – for whatever reason – the threat to use such force will likewise be illegal. In short, if it is to be lawful, the declared readiness of a State to use force must be a use of force that is in conformity with the Charter."

The above conclusion of the ICJ also indicates that the "declared readiness of a State to use force" constitutes threat of use of such force. Nuclear weapons in the high seas are deployed under both policies and practice of readiness to use. The U.S., U.K., France and Russia maintain policies to use nuclear weapons in a wide range of circumstances, including first use and use against non-nuclear threats. Nuclear weapons on submarines are kept attached to their delivery systems with the ability to be launched at targets within minutes (US, Russia), hours (France, China) or days (UK).

- Threat of force must conform to UN Charter

The UN Charter prohibits the threat or use of force against the territorial integrity or political independence of another state. Although it recognizes the right of self-defence, the Charter limits it to instances of armed attack:

Article 2 (4) provides:

"All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations,"

Article 51 provides:

"Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. "

Article 51 only permits the right of self-defence "if an armed attack occurs." In the absence of an armed attack, or threat of an imminent armed attack, the Article 2 (4) prohibition on threat or use of force applies. The deployment of nuclear weapons on nuclear-armed warships in the absence of an armed attack, is therefore a violation of Article 2 (4) of the UN Charter.

- Threat of use must relate to very survival of a State

Such deployment also fails to meet other minimum criteria of the ICJ regarding the very survival of a State. No nuclear weapon State (NWS) has demonstrated that there is currently a threat to the very survival of a State which could be alleviated by the passage of deployed nuclear weapons through the territorial waters of Aotearoa. In fact, to justify passage of nuclear weapons through the territorial waters of Aotearoa, a NWS would need to do more than just prove that there is a threat to the very survival of a State, which requires the deployment of nuclear weapons. It would need to prove that deployment in their own territorial waters or the high seas is insufficient to meet the threat, and thus passage through New Zealand’s territorial waters is required.

There seems to be no realistic scenario in which such passage could be justified. There are no targets close to New Zealand against which the NWS may be wishing to fire nuclear weapons and from which a launch from New Zealand’s territorial waters would be required. Nor is passage through New Zealand waters required to reach another part of the high seas in order to get closer to a target.

Thus, even in time of conflict, when the very survival of a State is at stake, and a NWS is considering using a nuclear weapon, assuming they had developed one that met the humanitarian laws of warfare (see next section below), New Zealand could still maintain a prohibition on the passage of nuclear armed warships through its territorial waters.

3. Humanitarian Laws of Warfare

Even if there were an armed attack, or threat of an armed attack, that threatened the very survival of a State, the nuclear weapons currently deployed would not be able to be used in conformity with the principles and laws of humanitarian law.

- Applicable Laws

The principles and laws of humanitarian law prohibit the use of weapons or tactics in wartime which:

a. disperse asphyxiating, poisonous or other gases and analogous

substances,

b. fail to discriminate between combatants and noncombatants,

c. violate the neutral jurisdiction of non-participating states,

d. cause unnecessary or aggravated suffering,

e. cause long-term and severe damage to the environment, or

1. are disproportionate to the provocation.

- Strategic nuclear weapons

Strategic nuclear weapons deployed on naval vessels include the following;

a. US weapons:

Trident I C4 missile with warheads of an explosive force of 100 kilotons.

Trident II D5 missile with warheads of an explosive force of 475 kilotons.

b. Russian weapons:

SS-N-17 missile with warheads of explosive force of 500-1,000 kilotons.

SS-N-18 missile with warheads with explosive force of 450-1,000 kilotons.

SS-N-20 missile with explosive force of 100-200 kilotons.

SS-N-23 missile with warheads of an explosive force of 100 kilotons.

c. UK weapons:

Trident II D5 missile with warheads of a force of 100 kilotons.

d. France:

M4Aand B missiles with warheads of an explosive force of 150 kilotons.

M45 missile with warheads of an explosive force of 100 kilotons.

e. China:

Juilong 1 missile with warheads of an explosive force of 200-1,000 kilotons.

 

The strategic warheads with the smallest yield that are deployed are the 100 kiloton Trident I C4. Most of these are being or have been replaced with the higher yield Trident warheads. A 100 kiloton warhead is over five times the explosive force of the bomb which destroyed Hiroshima.

The International Committee of the Red Cross, stated to the International Court of Justice that:

"no one can be unaware of the fact that today nuclear arms of all kinds are generally considered to be weapons of mass destruction, as are biological and chemical weapons. A priori, their use would thus appear to be incompatible with the prohibition, reaffirmed in Protocol I (of the Geneva Conventions) of "methods or means of combat which cannot be directed at a specific military objective" and are thus "of a nature to strike military objectives and civilians (...) without distinction"

(Article 51, para.4)"

The International Court of Justice concluded that:

The destructive power of nuclear weapons cannot be contained in time or space.

Even if the strategic nuclear weapons deployed by the NWS navies were not directed at cities, the force of the explosion and the resultant radioactive contamination would render them unable to conform to all of the principles and laws of humanitarian law. Failing to conform to just one of the laws would render the use or threat of use of that weapon illegal.

- Tactical nuclear weapons

According to declarations by the US and Russia, tactical nuclear weapons are no longer deployed on naval vessels. However, even if they were, it would be unlikely that they could be used in conformity with the humanitarian laws of warfare. While the yield of tactical nuclear weapons can be as low as 0.5 kiloton, the average yield is over 20 kilotons, nearly twice the explosive force of the bomb which destroyed Hiroshima. The use of the nuclear bomb on Hiroshima was judged by the Tokyo District Court to have violated several of the humanitarian laws of warfare including those on non-discrimination and aggravated suffering. The ICJ was not convinced that a tactical nuclear weapons could be used in conformity with the rules of international law. It stated that:

"none of the States advocating the legality of the use of nuclear weapons under certain circumstances, including the "clean" use of smaller, low yield, tactical nuclear weapons, has indicated what, supposing such limited use were feasible, would be the precise circumstances justifying such use; nor whether such limited use would not tend to escalate into the all-out use of high yield nuclear weapons. This being so, the Court does not consider that it has a sufficient basis for a determination on the validity of this view."

While it may be possible to develop and deploy a tactical nuclear weapon which did not violate humanitarian law, the ICRC pointed out "it is obvious that any such development would have to be carefully examined before any ruling is given on the lawfulness of using these particular weapons." This reaffirms the argument that any use of existing nuclear weapons would be illegal, even in the extreme circumstance of self defence in which the very survival of a State is at stake, and that use of any newly developed nuclear weapon would also be illegal unless it was proven that such a weapon could conform to international humanitarian law.

Considering that a) the ICJ determined that if use is illegal then so too is the threat of such use, and b) that deployment of nuclear weapons constitutes threat, then the deployment of currently existing nuclear weapons, all of which fail to meet humanitarian laws of warfare, would be illegal.

iv) Greenock decision

Such a determination was made by the Greenock Court in acquitting three anti-nuclear protestors on charges of damages they had caused to nuclear submarine equipment. Explaining her instructions to the jury to acquit, Sheriff Gimblett noted that:

I have to conclude that the three accused in company with many others were justified in thinking that Great Britain in their use of Trident, not simply possession, the use and deployment of Trident allied with that use and deployment at times of great unrest, coupled with a first strike policy and in the absence of indication from any government official then or now that such use fell into any strict category suggested in the ICJ opinion. The threat or use of Trident could be construed as a threat, has indeed been construed by others as a threat and as such is an infringement of international and customary law.

v) Article 19 (a)

In summary, since the advisory opinion referenced here has concluded that the threat or use of nuclear weapons would generally be inconsistent with the principles of international law, it may be concluded that passage of nuclear-armed warships could be considered non-innocent. In particular, New Zealand could claim that the passage of such ships would be in a "manner in violation of the principles of international law embodied in the Charter of the United Nations," and thus in violation of this specific phrase in Article 19 (a).

In addition New Zealand could argue that the passage of nuclear-armed warships, in constituting a threat of use of nuclear weapons, would violate the phrase in Article 19 (a) prohibiting "any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal State."

While the transiting power would unlikely to be threatening directly the coastal State, it would bring Aotearoa into the nuclear arena. The transiting nuclear weapons would be a target for those nuclear powers they are targeted against. Should a conflict erupt involving nuclear weapon States, nuclear armed warships would be targeted with either conventional or nuclear weapons. The destruction of a nuclear armed and propelled warship by conventional forces would most likely lead to a release of the radioactive materials within the weapons and nuclear reactor of the destroyed warship, thus threatening New Zealand. Any use of nuclear weapons against the transiting warship would be even more devastating, and would constitute a use against the coastal State.

Thus, the threat posed by the transiting nuclear weapons is in violation of both the Article 19 (a) prohibition of ‘threat’ of force, as well as the ICJ’s determination that threat of nuclear weapons is generally illegal.

The seriousness of the threat is underscored by the fact that deployed naval nuclear weapons are generally on high alert, and by the conclusion of the International Court of Justice that any limited use of nuclear weapons would "tend to escalate into all-out use of high yield nuclear weapons." Thus any nuclear exchange involving transiting nuclear weapons could threaten the very survival New Zealand.

vi) Treaty of Rarotonga allows for prohibition of transit

The South Pacific Nuclear-Free Zone Treaty does not prohibit transit of nuclear weapons in territorial waters. However, Article 5 presumes that coastal states could prohibit such transit,

while at the same time affirming the rights of innocent passage:

Each Party in the exercise of its sovereign rights remains free to decide for itself whether to allow visits by foreign ships and aircraft to its port and airfields, transit of its airspace by foreign aircraft, and navigation by foreign ships in its territorial sea or archipelagic waters in a manner not covered by the rights of innocent passage, archipelagic sea lane passage or transit passage of straits.

 

b) Exclusive Economic Zone

Restrictions applicable to maritime activity on the High Seas, including those related to the deployment of nuclear weapons, apply equally within EEZs. Article 58 (2) of UNCLOS, for example, holds that Articles 88 to 115 apply to the EEZ. Thus, we will firstly explore the relevant restrictions on the High Seas and then focus on the EEZ.

i) Nuclear weapons in the high seas

Traditionally, all states enjoy freedom of the high seas. Hugo Grotius articulated this principle in the 17th century in his work Mare Liberum (The Freedom of the Seas), arguing that the sea was part of the "common heritage of mankind" and could not be subjected to control by any single nation. This principle was codified in the 1958 Convention on the High Seas.

Freedom of the high seas was reiterated in UNCLOS. Article 87 provides:

1. The high seas are open to all States, whether coastal or land-locked.

Freedom of the high seas is exercised under the conditions laid down by

this Convention and by other rules of international law. It comprises, inter

alia, both for coastal and land-locked States:

(a) freedom of navigation;

(b) freedom of overflight. . .

(c) freedom to lay submarine cables and pipelines. . .

(e) freedom of fishing. . .

(f) freedom of scientific research. . . .

Article 87 does not include specific authorisation or prohibition of the freedom to deploy or transport nuclear weapons. While UNCLOS includes regulations pertaining to other activities not specifically provided for in Article 87, including activities of warships in general (Articles 29- 32) and to the transport of nuclear materials (Article 23), there is no reference made to transport or deployment of nuclear weapons.

Without specific prohibition, it could be assumed that there is freedom to deploy or transport nuclear weapons. However, there are more general limitations of freedom of the high seas, some of which may apply to deployment of nuclear weapons. UNCLOS, article 87(2) provides:

These freedoms shall be exercised by all States with due regard for the

interests of other States in their exercise of the freedom of the high seas,

and also with due regard for the rights under this Convention with respect

to activities in the Area.

Thus, each state is limited in its exercise of freedom on the high seas by other states' exercise of the same right as well as other rights under UNCLOS.

a) The principle of peaceful purposes

Article 88 of UNCLOS provides:

The high seas shall be reserved for peaceful purposes

The principle of peaceful purposes, or peaceful use, has only recently developed as a governing principle of the high seas under customary law. In the context of the law of the sea, UNCLOS introduced peaceful purposes as an explicit limitation on freedom of the high seas.

Under customary international law the concept of peaceful use emerged in "recognition that some activities were antithetical to evolving notions of humanitarian practices of civilized societies." Prohibitions on such activities as the transport of slaves and acts of piracy reflect evolving limitations on complete freedom of the high seas, on the basis of the principle of peaceful use. "By infringing on the theory that complete freedom exists on the high seas, universal condemnation of specific uses creates customary international law that protects peace on the high seas." Thus the concept of the "open sea" has been steadily limited in recognition of greater interests.

Interpretations differ as to whether "peaceful purposes" means "non-military" or "non-aggressive". "In most multilateral treaties, in which the terms 'peaceful activities' are used, it is interpreted to mean 'non-military. "'

1. Peaceful purposes in Antarctica

Antarctica, like the high seas, does not have a legal status that is comparable to statehood. Its viability depends on balancing the interests of several nations with competing claims through a cooperative regime. The principle of peaceful use is codified in the Antarctic Treaty, Article 1:

1. Antarctica shall be used for peaceful purposes only. There shall be prohibited, inter alia, any measures of a military nature, such as the establishment of military bases and fortification, the carrying out of military maneuvers, as well as the testing of any type of weapons.

2. The present Treaty shall not prevent the use of military personnel or equipment for scientific research or for any other peaceful purpose.

The provisions of the Antarctic Treaty may suggest that any measures of a military nature--with the exception of clearly peaceful activities such as scientific research that does not include weapons testing--would be inconsistent with the principle of peaceful purposes.

1. Peaceful purposes and UNCLOS

However, UNCLOS does not preclude military activities on the high seas. In contrast it provides some protection for such activities. Article 95, for example, provides immunity for warships on high seas from the jurisdiction of any state other than the flag state.

The only restrictions provided by UNCLOS under its coverage of peaceful purposes is that:

States Parties shall refrain from any threat or use of force against the territorial integrity or political independence of any State, or in any manner inconsistent with the principles of international law embodied in the Charter of the United Nations. (Art. 301)

One writer has noted that, considering that "customary use of the high seas for classified naval operations" has traditionally been recognized, a "reasonable inference to be drawn from 'peaceful purposes' is that 'the ongoing intensive militarization of ocean space is being reversed,' and therefore, aggressive military operations should be curtailed. " This would conform to the tenor of Article 301.

Jens Evensen, a former judge of the International Court of Justice, argued in 1986 that deployment of nuclear-armed cruise missiles in the oceans violated the general principle that the oceans shall be used exclusively for peaceful purposes. The implications of the 1996 ICJ Advisory Opinion are that the naval deployment of any existing nuclear weapon is inconsistent with the principles of international law embodied in the Charter of the United Nations and in the humanitarian laws of warfare (see section 4(a)(ii)(b) above).

1. Nuclear Weapon Free Zones

There may be supplementary reasons for the deployment of nuclear weapons in regional nuclear weapon free zones, in particular the South Pacific Nuclear Free Zone, to be determined as not legitimate. The Nuclear Weapon States have all signed Protocol 2 to the South Pacific Nuclear Free Zone Treaty under which they undertake not to threaten or use nuclear weapons against any party to the treaty or territory within the zone. The deployment of nuclear weapons in the zone however constitutes a threat to the territories and parties in the zone. If a nuclear exchange where to occur, the deployed nuclear weapons would themselves be a target. Any nuclear detonation within the zone would result in radioactive fallout on the territories of one or more parties. As the Marshall Islands told the ICJ:

"The Marshallese experience demonstrates that human suffering and damage to the environment must occur at great distance, both in time and geography, from the sites of detonations, even when effort is made to avoid or mitigate such harm."

The deployment by the NWS of nuclear weapons far from their own territories and their navigation of nuclear armed warships through NWFZs, is a form of drawing fire away from themselves and increasing the danger to states which have expressly decided not to host or possess nuclear weapons

2. Jurisdiction in the high seas

While it may be possible to demonstrate the illegality of the deployment of nuclear weapons on the high seas, and in particular within regional nuclear weapon free zones including the South Pacific Nuclear Free Zone, Treaty Parties do not have jurisdiction over the high seas. Article 89 of UNCLOS holds that :

"No State may validly purport to subject any part of the high seas to its sovereignty."

Thus, New Zealand would be unable to act unilaterally with regard to the deployment of nuclear weapons on the High Seas. However, New Zealand could work in cooperation with other South Pacific States, or through the United Nations to challenge such deployment (see Section 6. Other Recommendations)

ii) Exclusive Economic Zones and peaceful purposes

UNCLOS part V sets forth the legal regime applicable to the exclusive economic zone (EEZ). Article 55 defines the EEZ as "an area beyond and adjacent to the territorial sea. . . under which the rights and freedoms of the coastal state and the rights and freedoms of other states are governed by the relevant provisions of this Convention." Under article 57, the EEZ cannot "extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured."

The legal regime of the EEZ under UNCLOS is a new body of international law, representing a compromise between the interests of the maritime powers, who traditionally enjoyed freedom of the high seas and feared "creeping jurisdiction" and the interests of the coastal developing countries, who sought territorial seas rights.

The restrictions applicable to maritime activity on the High Seas, including those relating to deployment of nuclear weapons as outlined above, apply equally within the EEZs. Article 58 (2), for example, holds that Articles 88 to 115 apply to the exclusive economic zone. The principle of peaceful purposes discussed above, therefore, applies in the EEZ, and the limitations on the threat or use of nuclear weapons must govern in the EEZ as well.

Article 58, which discusses rights and duties of other states in the EEZ, notes that "States shall have due regard to the rights and duties of the coastal State and shall comply with the laws and regulations adopted by the coastal State in accordance with the provisions of this Convention and other rules of international law. . . ." Thus Article 58 affirms that coastal States a) have rights which the naval States must have regard to, and b) have authority to adopt laws and regulations concerning the EEZ. Notwithstanding the general principle of freedom of navigation, nothing in UNCLOS prevents coastal States from adopting regulations restricting such freedoms if they are deemed by the coastal State to be in contravention of the principle of peaceful purposes.

The application of the principle of ‘peaceful purposes’ in EEZs was given special consideration in the negotiating of UNCLOS. A proposal to specifically prohibit naval exercises in all EEZs was widely supported but did not achieve the consensus necessary for adoption in UNCLOS. The US alone opposed stating that:

"The term ‘peaceful purposes’ did not, of course, preclude military activities generally. The United States has consistently held that the conduct of military activities for peaceful purposes was in full accord with the Charter of the United Nations and with principles of international law. Any specific limitation on military activities would require the negotiation of a detailed arms control agreement. The Conference is not charged with such a purpose and is not prepared for such negotiation. Any attempt to turn the Conference’s attention to such a complex task could quickly bring to an end current efforts to negotiate a law of the sea convention"

However, it would appear that coastal states, in exercising their jurisdictional rights in the EEZs, have some authority regarding what constitutes peaceful purposes. Egypt, for example, argued that:

"… coastal States should manage the zone without undue interference in other legitimate uses of the sea and they should ensure that all activities within the exclusive economic zone be carried out exclusively for peaceful purposes."

Other states made similar statements.

2. EEZ and protection of marine environment

Additional rights of coastal states relating to their EEZs are affirmed by UNCLOS. Article 56, for example, grants the coastal state sovereign rights in the EEZ "for the purpose of exploring and exploiting, conserving and managing the natural resources. . ." as well as jurisdiction with regard to "the protection and preservation of the marine environment. . . ."

UNCLOS provisions granting states the right to protect and preserve the marine environment mean that "coastal states have considerable opportunity to globally, regionally, and, in some instances, unilaterally implement measures to protect the marine environment that could have a substantial impact upon certain navigational freedoms. "

Concern over the protection of the marine environment has resulted in "unilateral initiatives which were considered beyond existing international law norms at the time," leading to "standards which evolved into accepted practice-" Moreover, "the ambiguity of UNCLOS with respect to coastal state rights within the EEZ creates an opportunity for states to take such actions." One Writer notes that "coastal states have become aggressive in passing and enforcing laws designed to protect and preserve the marine environment and its natural resources." Thus, state practice is appearing to support the position affirming coastal states rights to preclude actions of other states within the EEZs that may be detrimental to environment and ocean resources.

Transit of nuclear weapons through the EEZ poses a potential threat to the marine environment through the potential for use. Nuclear Weapon States have pledged not to use nuclear weapons against parties to the Treaty. Nuclear Weapons States have not however, pledged not to use nuclear weapons against nuclear weapons deployed in the High Seas or EEZs within nuclear weapon free zones. On the contrary, the U.S. and some of the other Nuclear Weapons States have a policy of "forward defense" (see below) which provides for use of nuclear weapons in regions beyond their own territory.

The passage of nuclear-armed warships through EEZs also constitutes a threat to the

environment arising from an accident. A number of accidents involving Russian or US submarines with nuclear weapons have released radiation into the marine environment.

iv) State Practice

Coastal State practice will play a pivotal role in the interpretation and application of the EEZ regime. As the law of the sea itself developed through custom, so will the contributions of affected states determine the regime that will apply to navigation of vessels carrying nuclear weapons. State practice has already demonstrated emerging limitations on traditional freedoms enjoyed by maritime powers. These limitations are largely, but not exclusively, based on environmental concerns. UNCLOS explicitly permits limiting traditional navigational freedoms to allow protection of the marine and coastal environment. However Article 236 of UNCLOS weakens the ability of coastal States to apply UNCLOS environmental protection measures to military vessels;

"The provisions of this Convention regarding the protection and preservation of the marine environment do not apply to any warship, naval auxiliary, other vessels or aircraft owned or operated by a State and used, for the time being, only on government or non-commercial service."

This immunity for naval vessels is only partially offset by the provision that:

"… each State shall ensure, by the adoption of appropriate measures not impairing operations or operational capabilities of such vessels or aircraft owned or operated by it, that such vessels or aircraft act in a manner consistent, so far as is reasonable and practicable, with this convention."

Beyond that, state practice is showing a tendency to apply such limitations for the sake of interests, such as security, that are not directly tied to environmental concerns. Vicuna notes that: "the limitations of military use in the exclusive economic zone are greater than those applied to similar activities carried out in the high seas", and that "Some limitations, such as those enumerated in Article 301, are of a political nature where-as others, such as those of Article 58, are economically or functionally oriented."

At the signing of the 1982 Convention, Brazil, Cape Verde, India, Malaysia, Pakistan and Uruguay declared that they did not consider military exercises, maneuvers, or weapons testing as being permitted within the EEZ without the consent of the coastal state. Claims of jurisdiction over security in the EEZ have also been made by Bangladesh, Burma, Cambodia, Haiti, Pakistan, Sri Lanka, Vietnam, and the People's Democratic Republic of Yemen. Meyer notes that some twenty states "have used EEZ proclamations and/or adopted laws that do not specifically recognize the freedoms of navigation and overflight in the EEZ."

Peru, in proposing a zone of peace in the Southeast Pacific, noted that within the 200 mile zone of States parties:

"the exercise of the freedom of international communications does not authorize, without the consent of the coastal State, any non-peaceful use of the waters, or superajacent airspace, and the seabed, such as the realization of military exercises or manuevers, particularly if the use of arms or explosives are involved…"

Some of these proclamations and laws have been met with protest by the US. Vicuna notes that the US, for example, protested the claims of EEZ restrictions by Burma and Haiti. However, such protest does not necessarily prevent recognition of coastal State restrictions. The U.S. actively opposed the prohibition of nuclear weapons made by New Zealand in its 1987 legislation. Yet, the US not only recognised the restrictions in the legislation regarding non-entry of nuclear armed warships into New Zealand’s ports, but has also honoured a defacto nuclear free zone which includes New Zealand’s EEZ.

US opposition is linked to their policy of ‘forward defense’, under which the US aims to operate military vessels globally including in EEZs of many coastal States. The problems this policy creates has been more directly stated by writers such as Meyer, who observes that the ongoing "militarization of the world's oceans poses a significant threat to reserving the high seas 'for peaceful purposes. ' This could result in a naval engagement in an EEZ of a coastal state through which the U.S. Navy is exercising its perceived rights of high seas freedom of navigation in support of the declared U.S. ocean policy." He adds that acceptance of coastal state claims would be "inconsistent with the foreign policy objectives of the United States." This policy comprises deterrence, and-- should that fail--a "forward defense", both of which require "worldwide peacetime operations". Thus, "[a]cquiescence to jurisdictional claims over navigation and overflight in the EEZ would seriously jeopardize the National Military Strategy and is, therefore, unacceptable."

Arkin and Handler agree that coastal State jurisdiction over naval activities within EEZs poses potential "challenges to the freedoms of navigation" that maritime powers have traditionally enjoyed. However, they concede that the EEZ regime allows for such jurisdiction and that coastal states are "rapidly developing the means to enforce and defend their jurisdictional claims" in this area.

Article 59 of UNCLOS provides for cases of conflict between the interests of a coastal State and other States within an EEZ, and notes that:

"… the conflict shall be resolved on the basis of equity and in the light of all relevant circumstances, taking into account the respective importance of the interests involved to the parties as well as to the international community as a whole."

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