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Russia’s Mapping of Critical Infrastructure in the North and Baltic Seas – International Law as an Impediment to Countering the Threat of Strategic Sabotage?

In: Nordic Journal of International Law
Author:
Christian Schaller Stiftung Wissenschaft und Politik (SWP) – Deutsches Institut für Internationale Politik und Sicherheit (German Institute for International and Security Affairs), Berlin, Germany

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Abstract

Russia is systematically mapping critical infrastructure in the North and Baltic Seas. These activities are intended to unsettle nato countries and prepare the ground for possible sabotage. The problem is that the international law of the sea does not provide coastal States with clear authority to prevent the collection of intelligence on maritime infrastructure within their Exclusive Economic Zones (eez s). This article argues that coastal States must nevertheless be able to exercise their sovereign rights with respect to the exploration and exploitation of the eez and continental shelf. Consequently, they must be allowed to take the necessary measures to protect the infrastructure serving the exercise of those sovereign rights. This argument could help to establish a legal basis for countering Russian mapping operations in the eez s and on the continental shelves of coastal States in the North and Baltic Seas.

1 Introduction

It is common practice among States to send ships and submarines across the oceans to spy on each other. In times of relative peace following the end of the Cold War, intelligence gathering in other States’ territorial waters and Exclusive Economic Zones (eez s) seemed to pose no immediate threat to peace and security. The situation has changed with Russia’s attack on Ukraine. There is a high risk that Russia, as part of its hybrid campaign against nato members, will further attempt to interfere with European communication, electricity, and energy infrastructure, especially in the maritime domain.

The blowing up of the Nord Stream pipelines in September 2022 and the damaging of the Balticconnector gas pipeline in the Gulf of Finland in October 2023 have shown (leaving aside the problem of attribution in each case) that the disruption of underwater supply lines for oil and gas is a realistic scenario due to the fact that it is impossible to effectively protect such infrastructure on the sea floor.1 Submarine data and power cables are also particularly vulnerable. Attacks on cables can be carried out without technologically advanced capabilities by civilian ships, such as fishing trawlers, research vessels, yachts, or even container ships “hidden in common marine traffic”.2 As one journalist put it, for severing cable connections, “all it takes is a heavy anchor, the will to drag it, and the knowledge of just where to do so”.3 More precise operations can be conducted by scuba divers, manned or un-manned underwater vehicles, and deep-diving submarines. Recent examples of cable cutting incidents in Northern European waters include the vanishing of a large subsection of a research data cable off the North Norwegian coast (April 2021),4 the disruption of a fibre-optic communication cable connecting the archipelago of Spitzbergen with the Norwegian mainland (January 2022),5 the cutting of cables between Shetland and the Scottish mainland, as well as between Shetland and the Faroe Islands (October 2022),6 and the damaging of a telecommunications cable connecting Finland and Estonia in the Viro Strait (October 2023).7

The effort and cost of sabotage against underwater cables and pipelines can be considered minimal compared to the potential impact. Within the global network of submarine communications infrastructure, not every data cable or landing station is critical. However, there are a number of nodes that are vital for connecting Europe with other regions of the world. They are located off the south-west coast of the United Kingdom, in the Bay of Biscay, off the Portuguese Atlantic coast, and off Marseilles. Coordinated and simultaneous strikes against these nodes could largely paralyse Internet traffic in Europe. An attack disrupting key oil and gas supply lines could also have serious cascading effects. Depending on the location and extent of the damage, it can take months or even years to repair a pipeline on the seabed. All in all, a simple act of sabotage – strategically targeted at particularly critical parts of the cable or pipeline infrastructure – can put enormous pressure on the affected States.

Therefore, Russian activities in the waters surrounding the European continent are alarming. In April 2023, a team of investigative journalists from Denmark, Finland, Norway, and Sweden revealed that Moscow is running a large-scale programme to systematically map critical infrastructure and its vulnerabilities in the North and Baltic Seas.8 Security experts consider these activities as preparation for future sabotage.9 European waters are home to thousands of kilometres of cables, including data cables that connect the European mainland with the United Kingdom and the United States.10 Moreover, Europe has an extensive network of underwater pipelines.11 Another potential target are the numerous wind farms, especially in the North Sea.

According to media sources, the mapping is conducted by a fleet of approximately 50 Russian ships, which have underwater surveillance technology onboard.12 Reportedly, the ships use to turn off their positional transmitters when operating in the vicinity of critical infrastructure. In their documentary, the journalists focussed on the Admiral Vladimirsky, classified as an oceanographic research vessel, which had been spotted nearby military installations at the northeast coast of Scotland as well as close to several wind farms along the British and Dutch coasts. The reports say that the ship also travelled through Danish territorial waters with its transmitter turned off.13 A journalist who approached the Admiral Vladimirsky said he was confronted by armed security guards standing on deck. During an earlier research expedition to the South Pole, the ship reportedly deployed a proton magnetometer, which is a device that can be used to detect metallic objects on the seabed.14

The fact that Russian ships – whether ‘ghost ships’ or vessels clearly identifiable as military or research vessels – are mapping foreign maritime infrastructure is not new. Such activities are said to date back to the 1990s and 2000s.15 Since 2014, however, these efforts have intensified, observers say.16 In 2015, the US Government got alarmed about Russian submarines and spy ships aggressively operating near vital undersea cables close to US coastlines.17 Russian vessels conducting intelligence operations around Europe were spotted also in Irish and Portuguese waters and in the Mediterranean. For example, in August 2021, the Yantar was observed sailing through Ireland’s eez. The Yantar is officially an oceanographic research vessel, but its missions are believed to include cable cutting, laying of taps on undersea cables, and intelligence gathering.18 The ship is also capable of hosting deep-diving submersibles and a range of remotely operated and autonomous underwater vehicles.19

The systematic use of civilian ships to map and possibly attack critical infrastructure is also not a new phenomenon. During the Cold War, the Soviet Navy maintained a number of auxiliary surveillance vessels and upheld relations to Soviet fishing fleets to co-opt them for intelligence gathering and sabotage missions.20 This practice is obviously continuing. Some analysts claimed that it is now part of Russian military doctrine to utilise its civilian fleet as ‘vessels of opportunity’ that could be employed in hybrid warfare.21 The 2022 Maritime Doctrine of the Russian Federation states:

Mobilization training and mobilization readiness in the field of maritime activity are strategically important for increasing the naval readiness of the Russian Federation with the goal to incorporate into the Russian Armed Forces civilian vessels and crews that are trained and prepared in advance, and to prepare the maritime activities facilities for wartime operation.22

Among the priority areas for improving mobilisation training and mobilisation readiness in the field of maritime activity ranges “improving the procedure for the conscription and use of transport, fishing, and specialized vessels of all forms of ownership, (…) by the Armed Forces of the Russian Federation, other troops, and military units conducting special operations in peacetime (emphasis added)”.23

In response to the growing threat of strategic sabotage, nato has established a new cell for coordinating the protection of critical undersea infrastructure, which is responsible, among other things, for enhancing surveillance of particularly vulnerable installations and structures. National efforts are also becoming more determined.24 British Prime Minister Rishi Sunak, for example, announced in October 2023 that more than 20,000 British troops with warships, fighter jets, and helicopters will be deployed across Northern Europe to tackle hybrid threats and protect critical infrastructure in the region.25

Against this background, this article examines the legal framework under which States could take action against Russian vessels engaged in mapping critical infrastructure in the North and Baltic Seas. The analysis focuses on the international law of the sea, not on the law of State responsibility or the jus contra bellum. Section 2 shows that the mapping of infrastructure in the territorial sea of another State without the authorisation or consent of that State is incompatible with the regime of innocent passage. The coastal State may therefore adopt laws and regulations, and take a variety of enforcement measures, to sanction ships carrying out unauthorised mapping activities in its territorial sea. Section 3 deals with straits used for international navigation. Here, the legislative and enforcement powers of the bordering States are more limited. This makes it difficult to justify action against Russian spy ships in such straits. Section 4 analyses the legal situation in the eez, where all States enjoy the freedom of navigation. An important question is whether collecting intelligence in a foreign eez constitutes an internationally lawful use of the sea related to the freedom of navigation. In any case, the UN Convention on the Law of the Sea (losc)26 does not give the coastal State clear authority to prevent foreign vessels from mapping infrastructure in its eez. However, coastal States must be able to exercise effectively their sovereign rights for the exploration and exploitation of the natural resources of the eez and continental shelf. This implies that coastal States must be allowed to take the necessary measures to protect the infrastructure that serves the exercise of those sovereign rights. Hence, the article discusses to what extent coastal States may take measures against foreign vessels suspected of being involved in the preparation of acts of sabotage in the eez and on the continental shelf. Section 5 concludes with an outlook.

2 The Mapping of Critical Infrastructure in the Territorial Sea

The territorial sea with its bed and subsoil is subject to coastal State sovereignty. However, under losc Article 17 and customary international law, ships of all States enjoy the right of innocent passage through the territorial sea. To prevent passage that is not innocent, the coastal State may, according to losc Article 25(1), take ‘the necessary steps’ in its territorial sea. Coastal State authorities can request information from the ship and interdict, board, and inspect it. Moreover, the ship may be expelled from the territorial sea. Alternatively, the coastal State can also order the ship into port, arrest it, and institute proceedings.27 Action under Article 25(1) may entail the reasonable and necessary use of force.28 Generally, ships that do not meet the requirements for innocent passage are – with the exception of warships and other government ships operated for non-commercial purposes, which enjoy immunity29 – subject to the full jurisdiction of the coastal State. Warships not complying with the coastal State’s laws and regulations concerning passage, and disregarding requests for compliance, may only be required to leave the territorial sea immediately.30 This option is also available against other non-commercial government ships although the losc is silent on this point.31

2.1 Mapping Operations and the Regime of Innocent Passage

The key question is whether the mapping of critical infrastructure in the territorial sea by a foreign vessel contravenes the regime of innocent passage, which would trigger the coastal State’s right to take enforcement measures against the vessel. The term ‘passage’ is defined in losc Article 18.32 According to paragraph 2 of that Article, passage must be continuous and expeditious. Stopping and anchoring incidental to ordinary navigation (or rendered necessary by force majeure or distress, or for assisting persons, ships, or aircraft in danger or distress) is covered by the notion of passage. But hovering and lingering in another State’s territorial sea for whatever purpose does not constitute passage within the meaning of Article 18.33 Ships that cruise around to collect data on critical infrastructure in the territorial sea do not meet the requirements of passage. A different case is when a ship is gathering information while continuously and expeditiously traversing the territorial sea. In this case, the question arises whether such passage is ‘innocent’ in accordance with losc Article 19.

losc Article 19(1) states that passage is innocent “so long as it is not prejudicial to the peace, good order or security of the coastal State”. In paragraph 2, the Article lists certain activities that render passage of a foreign ship ‘not innocent’. This includes, among other things, acts aimed at collecting information to the prejudice of the defence or security of the coastal State, the launching, landing, or taking on board of aircraft and military devices, research and survey activities, as well as acts aimed at interfering with communication systems or other facilities or installations of the coastal State. Moreover, passage of a foreign ship is considered to be prejudicial to the peace, good order, or security of the coastal State if the ship is engaged in “any other activity not having a direct bearing on passage”. Apart from that, according to losc Article 20, submarines and other underwater vehicles are required under the regime of innocent passage to navigate on the surface and to show their flag in the territorial sea.

Ships are generally allowed to gather certain operational information necessary for safe navigation.34 James Kraska suggests that this includes not only weather and oceanographic data but also information about other conditions, such as land or submerged features.35 In his view, even active data collection through radar and sonar is permissible to the extent that it is essential for safe navigation.36 However, systematically collecting data on critical infrastructure in the territorial sea, without coastal State authorisation or consent, is clearly inconsistent with innocent passage even if the ship is continuously and expeditiously traversing these waters. It does not matter whether the activity is immediately hostile.37 The right of innocent passage must not be abused for conducting intelligence operations that affect the coastal State’s security interests.

2.2 The Theory of Non-innocent Passage

A different issue is whether intelligence collection in another State’s territorial sea, while being incompatible with the right of innocent passage, automatically constitutes a violation of the international law of the sea or general international law. James Kraska explains that the United States does not regard the 1958 Convention on the Territorial Sea and the Contiguous Zone38 (to which the United States is a party) and the 1982 losc to prohibit or otherwise regulate intelligence activities in the territorial sea.39 This position is underpinned by the theory of non-innocent passage,40 which is based on the assumption that the two Conventions privilege innocent passage but do not forbid non-innocent passage. According to the theory of non-innocent passage, both Conventions grant certain rights and protections to those foreign vessels that respect the standards established by the regime of innocent passage but do not create a legal obligation to comply with these standards. The theory of non-innocent passage essentially means that foreign vessels may navigate through the territorial sea also in a non-innocent fashion. The underlying argument is that the Conventions do not apply to non-innocent passage and therefore do not restrict it.41 The rationale behind the theory, from a US perspective, is to shield US intelligence operations, in particular those conducted by submerged submarines, in other States’ territorial seas from accusations that these operations violate international law. The theory of non-innocent passage is rightly criticised in the literature.42 However, a more detailed discussion of this theory is beyond the scope of the present article. Irrespective of whether the mapping of critical infrastructure in another State’s territorial sea constitutes a violation of international law,43 coastal States are entitled, in accordance with losc Article 25(1), to take the necessary steps in their territorial sea to prevent passage of foreign ships engaged in such activities. As indicated above, even ships that enjoy sovereign immunity can be forced to leave the territorial sea. All other ships may also be subject to boarding, inspection, and arrest.

2.3 Regulatory Options for Protecting Critical Infrastructure in the Territorial Sea

Coastal States are entitled to adopt laws and regulations relating to innocent passage, in respect of certain subjects, including the protection of facilities and installations, the protection of cables and pipelines, and concerning marine scientific research and hydrographic surveys.44 Such laws and regulations must be complied with by all foreign ships exercising the right of innocent passage.45 In particular, coastal States may establish in their territorial sea safety zones (other terms commonly used are ‘security zones’ and ‘exclusion zones’) around certain facilities and installations, such as offshore wind farms and oil and gas facilities.46 Also, they may designate zones or corridors for the protection of cables and pipelines,47 as long as this does not unduly impede innocent passage.48 Observance of such safety zones and corridors can be enforced through maritime policing. Moreover, coastal States have the right to require foreign vessels to use certain sea lanes and follow traffic separation schemes.49 A more far-reaching option is to suspend temporarily, and without discrimination, innocent passage of foreign ships in specified areas of the territorial sea. This requires that the suspension is essential for the coastal State to protect its security.50 Arguably, a coastal State may suspend innocent passage temporarily also in areas where offshore oil and gas facilities are located that are part of the critical infrastructure and are essential to its security.51 But it is open to discussion whether there must be a concrete threat or whether an abstract threat is sufficient. In any case, ‘temporarily’ should be interpreted to allow for suspension for as long as the threat that triggers the measure exists.52

3 The Mapping of Critical Infrastructure in International Straits

On their way from the Baltic Sea through the North Sea and further south, Russian spy ships may traverse a number of straits where they could collect data about cable and pipeline routes.53 Therefore, it is important to explore to what extent the States bordering the straits have jurisdiction to take action against these ships.

The regime of passage through straits used for international navigation is laid down in losc Part iii, which covers two categories of straits: those in which the right of transit passage exists (losc Articles 37–44), and those to which the regime of non-suspendable innocent passage applies (losc Article 45).54 The regime of transit passage is designed to ensure the unimpeded global mobility of ships, submarines, and aircraft. Under this regime, control over passing vessels by the States bordering the strait is more limited than under the regime of non-suspendable innocent passage.

3.1 The Legal Situation during Transit Passage

According to losc Articles 37 and 38, the right of transit passage is effective in straits used for international navigation between one part of the high seas or an eez and another part of the high seas or an eez. In the waters forming such straits, the regime of transit passage overlays the territorial sea,55 which means “that the right of transit passage exists through all of the waters within the strait that are part of the territorial sea”.56 The regime of transit passage applies in the Strait of Dover, which marks the boundary between the North Sea and the English Channel and which is one of the most frequented international sea routes in the world. Moreover, transit passage is considered to apply in the North Channel between Scotland and Northern Ireland, and in the Fair Isle Gap between the Orkney Islands and the Shetland Islands.57

losc Article 38(1) stipulates that all ships enjoy the right of transit passage through such straits. This also includes warships and submarines.58 The definition of ‘transit passage’ is contained in losc Article 38(2): the exercise of the freedom of navigation “solely for the purpose of continuous and expeditious transit of the strait”. This does not preclude passage through the strait for the purpose of entering, leaving, or returning from a State bordering the strait, subject to the conditions of entry to that State. Ships that exercise the right of transit passage have certain duties during passage. Some duties are laid down in losc Articles 39 and 40 (see subsection 3.1.1). Any activity that is not an exercise of the right of transit passage remains, according to losc Article 38(3), subject to the other applicable provisions of the losc (subsection 3.1.2).

losc Article 38(1) stipulates that the right of transit passage must not be impeded, and Article 44 provides that States bordering such straits shall not hamper or suspend transit passage. Accordingly, bordering States’ jurisdiction to adopt laws and regulations relating to transit passage,59 and to enforce these laws and regulations,60 is rather limited. In particular, the regime of transit passage does not contain any provisions that give the States bordering straits jurisdiction to enforce observance of Articles 39 and 40 directly vis-à-vis non-compliant vessels. Leaving aside situations of armed attack in which the right of self-defence comes to apply, enforcement has to be pursued by approaching the responsible flag State. However, where the flag State approves or even controls the ship’s illegal conduct, this is not a viable option. That is why losc Article 38(3) is of particular importance in the present case. It may be argued that an activity which does not qualify as an “exercise (…) of the freedom of navigation (…) solely for the purpose of continuous and expeditious transit of the strait”, as defined in losc Article 38(2), brings the ship under the regime of innocent passage if the activity takes place in an area belonging to the territorial sea.61 As a consequence, the bordering State gains greater legal leeway for action, as it may now take the necessary steps in its territorial sea in accordance with losc Article 25(1) to prevent passage that is not innocent. Therefore, it must be examined whether the mapping of critical infrastructure by Russian ships in international straits in the North and Baltic Seas would merely amount to a violation of the duties applicable during transit passage, or whether it would constitute an activity falling entirely outside the scope of the right of transit passage.

3.1.1 Violation of Duties during Transit Passage

According to losc Article 39(1), ships, while exercising the right of transit passage, shall proceed without delay, refrain from any threat or use of force against the sovereignty, territorial integrity, or political independence of States bordering the strait (or in any other manner in violation of the principles of international law embodied in the UN Charter), refrain from activities other than those incident to their normal modes of continuous and expeditious transit (unless rendered necessary by force majeure or by distress), and comply with other relevant provisions62 of losc Part iii.

It is debatable whether the collection of intelligence by a ship while traversing a strait constitutes a violation of these duties. On the one hand, the regime of transit passage does not contain any provision similar to losc Article 19(2)(c), according to which passage through the territorial sea is not innocent if the ship engages in acts aimed at collecting information to the prejudice of the defence or security of the coastal State.

On the other hand, ships in transit have the duty under losc Article 39(1)(c) to refrain from any activities other than those incident to their normal modes of continuous and expeditious transit. The term ‘transit’ in its ordinary meaning can be understood as the process of entering, passing through, and exiting the strait. ‘Normal mode’ has been interpreted to refer to that mode which is normal or required for navigation by a particular type of ship in given circumstances in a particular strait.63 Todd Emerson Hutchins suggested that surveillance ships might be permitted to continue their activities, so long as they stay in ‘normal mode’ during continuous and expeditious transit of the strait.64 And James Kraska pointed out that intelligence operations may be consistent with transit passage as long as they do not rise to the level of a threat or use of force.65 In the present author’s view, these interpretations go too far. Just like during innocent passage through the territorial sea, vessels passing through a strait must be allowed to collect information about the surrounding maritime environment to the extent that the information is necessary for safe navigation. Acquiring and processing such information may be regarded as activities incident to the ship’s normal mode of transit consistent with sound navigational practices. However, ‘normal mode of transit’ within the meaning of losc Article 39(1)(c) must not be confused with a ship’s routine mission. It is obvious that a surveillance ship is routinely concerned with collecting information for intelligence purposes. But such activities are not incident to transit being understood as the plain act of entering, passing through, and exiting the strait.

Apart from that, according to losc Article 40, foreign ships may not carry out, during transit passage, any research or survey activities without prior authorisation by the States bordering the strait. ‘Survey activities’ is a rather broad category not defined in the losc. The International Hydrographic Organization’s (iho) database contains the following definition of ‘survey’: “[t]he act or operation of making measurements for determining the relative position of points on, above or beneath the earth’s surface”.66 Usually, hydrographic surveys are distinguished from military surveys. The iho defines ‘hydrographic survey’ as “[a] survey having for its principal purpose the determination of data relating to bodies of water”. According to this definition, a hydrographic survey “may consist of the determination of one or several of the following classes of data: depth of water; configuration and nature of the bottom; directions and force of currents; heights and times of tides and water stages; and location of topographic features and fixed objects for survey and navigation purposes (emphasis added)”.67 To the extent that exploring the location of cables and pipelines on the seabed is subsumed under this definition, it can be argued that such activities are incompatible with losc Article 40.

Yet, compliance with losc Articles 39 and 40 is not a condition on which the right of transit passage depends.68 It means that a non-compliant ship is not automatically precluded from exercising this right. Moreover, as already explained, the regime of transit passage does not provide bordering States with jurisdiction to enforce observance of these Articles vis-à-vis non-compliant ships. Here, losc Article 38(3) comes into play.

3.1.2 Activities Falling outside the Regime of Transit Passage

In straits within the meaning of losc Article 37, an activity that does not qualify as an exercise of the right of transit passage may arguably bring the ship under the regime of innocent passage, which would open the door to losc Article 25(1). Hence, it must be clarified what the difference is between conducting activities not incident to normal modes of continuous and expeditious transit (which violates the duty established by losc Article 39(1)(c)) and navigating in the strait not solely for the purpose of continuous and expeditious transit (which puts the activity completely outside the scope of transit passage).

If a ship, while continuously and expeditiously transiting the strait, engages in activities not incident to the normal mode of transit, it will violate Article 39(1)(c). This provision relates to the manner of transit. Again, as set out in the previous section, collecting intelligence – which is not an activity incident to transit understood as the act of entering, passing through, and exiting the strait – constitutes a violation of Article 39(1)(c).

In contrast, if the ship, after entering the strait, leaves the course of continuous and expeditious transit and hovers and lingers in the strait, it will cease to exercise the right of transit passage and fall outside the scope of this regime as stipulated in losc Article 38(3). Bing Bing Jia stressed that even stopping and anchoring constitute activities that are not in exercise of the right of transit passage under Article 38(2), and are thus subject to Article 38(3).69 This generally raises the problem that stopping and anchoring in the strait, to the extent that the regime of innocent passage becomes applicable by virtue of Article 38(3), might now become legal in accordance with losc Article 18(2). However, under Article 18(2), stopping and anchoring is covered by the notion of passage only in so far as it is “incidental to ordinary navigation” (or rendered necessary by force majeure or distress, or for assisting persons, ships, or aircraft in danger or distress), which clearly excludes stopping and anchoring for the purpose of intelligence gathering or for conducting any survey activities.

3.2 The Legal Situation during Non-suspendable Innocent Passage

The regime of innocent passage, in accordance with Section 3 of losc Part ii, applies from the outset to straits used for international navigation in two constellations: (1) where the strait is formed by an island of a State and the State’s mainland, to the extent that there exists seaward of the island a route through the high seas or through an eez of similar convenience with respect to navigational and hydrographical characteristics,70 and (2) where the strait is between a part of the high seas or an eez and the territorial sea of a State.71 In both cases, the coastal State may regulate innocent passage through those parts of the strait that fall within its territorial sea in the same way that it may regulate innocent passage through other parts of its territorial sea.72 But in such straits, there shall be no suspension of innocent passage.73 This is an important deviation from the ‘standard’ regime of innocent passage according to which innocent passage in the territorial sea may be temporarily suspended under certain conditions.74

The regime of non-suspendable innocent passage is regarded to apply, for example, in the Pentland Firth between the Scottish mainland and the Orkney Islands, and in the passage between the Scilly Isles and the mainland of Cornwall.75

3.3 Examples of Special Strait Regimes in the North and Baltic Seas

Denmark’s Great Belt and Little Belt, as well as the Sound (Oresund) between Denmark and Sweden, are subject to a special regime, which has developed on the basis of two treaties of 1857.76 In accordance with losc Article 35(c), these straits are considered to be exempt from the regime on straits established by losc Part iii.77 One of the two treaties provides that no vessel shall, under any pretext whatsoever, be subjected in its passage of the Sound or the Belts, to any detention or hindrance.78 This commitment is interpreted to apply even in relation to third States that are not party to the treaty.79 Robin Churchill, Vaughan Lowe, and Amy Sander understand the provision as supplementing the right of passage with an immunity from coastal State enforcement jurisdiction.80 In their view, this had the effect of rendering the losc rules on enforcement inapplicable. Alex Oude Elferink noted that, while the exact content of the present regime in the Danish Straits was not completely clear as the treaty contained only a very broad definition of the parties’ rights and obligations in respect of navigation,81 Denmark used to be rather cautious in taking enforcement action against ships that do not comply with Danish national laws and regulations.82

Another example of a long-standing legal regime within the meaning of losc Article 35(c) is the special regime covering the strait between Finland and Sweden in the waters off the Åland Islands.83 The relevant instrument is a Convention of 1921 concerning the non-fortification and neutralisation of the Åland Islands.84 According to Article 4 of the 1921 Convention, no naval force of any Power (certain exceptions apply with respect to Finland’s right to send armed forces to the Islands) shall enter or remain in the territorial waters of the Islands. The territorial waters are considered by the Convention’s Article 2(ii) to “extend for a distance of three marine miles”. Article 5 of the Convention stipulates that the prohibition to send warships into the zone shall not prejudice the freedom of innocent passage through these territorial waters. Therefore, it is held that the right of transit passage does not apply to the Åland Strait.85 However, J. Ashley Roach stressed that the 1921 Convention does not regulate passage through the remaining waters that form the strait beyond three marine miles.86 In any case, it may be argued that Finland has the right to take the necessary steps to prevent passage that is not innocent in the three-mile territorial waters of the Åland Islands.

4 The Mapping of Critical Infrastructure in the eez

The legal situation in the eez is of particular importance, as this is where wind farms are usually located and where many cables and pipelines run along the seabed. The eez is an area beyond and adjacent to the territorial sea. It shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured.87 The “specific legal regime” of the eez as laid down in losc Part v reflects a carefully crafted compromise intended to balance the freedoms of the high seas with the sovereign rights and jurisdiction of coastal States. In the eez, all States enjoy, according to losc Article 58(1),

subject to the relevant provisions of this Convention, the freedoms referred to in Article 87 of navigation and overflight and of the laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to these freedoms, such as those associated with the operation of ships, aircraft and submarine cables and pipelines, and compatible with the other provisions of this Convention.

It is generally acknowledged that military activities, such as exercises and manoeuvres, are covered by the freedom of the high seas under losc Article 87 to which Article 58(1) refers. Moreover, it is held that the freedom of the high seas encompasses the right of the flag State to carry out strategic observation and reconnaissance in all areas of the high seas, including the bed and subsoil.88 Whether intelligence collection is an internationally lawful use of the sea in the eez will be discussed below. At any rate, the eez – just like the high seas – shall be reserved for peaceful purposes.89 Aside from that, in exercising their rights and performing their duties in the eez, States must 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 losc and other rules of international law.90 Vice versa, the coastal State shall have due regard in its eez to the rights and obligations of other States.91

Coastal State rights and jurisdiction in the eez relate to a limited number of economic, environmental, and scientific matters only. According to losc Article 56(1), coastal States enjoy sovereign rights for the purpose of exploring, exploiting, conserving, and managing the zone’s natural resources, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents, and winds. Moreover, coastal States have jurisdiction (subject to the relevant provisions of the Convention) in their eez s over the establishment and use of artificial islands, installations, and structures, regarding marine scientific research, and concerning the protection and preservation of the marine environment. However, the losc contains only few provisions that explicitly vest coastal States with enforcement jurisdiction in the eez.

4.1 Coastal State Jurisdiction to Control Marine Data Collection in the eez

‘Marine data collection’ is a generic term not used in the losc. It is understood to refer to various fields where data are collected in the marine environment, including marine scientific research (msr), hydrographic and military surveying, operational oceanography, exploration and exploitation of natural resources and underwater cultural heritage, and monitoring and environmental assessment.92

If Russian ships operating in the North and Baltic Seas were engaged in msr, coastal States would enjoy jurisdiction to control and possibly stop such operations in their eez s.93 The losc, which deals with msr in Part xiii, does not define ‘marine scientific research’. However, it is widely acknowledged that the notion encompasses any scientific study or related experimental work that has the marine environment as its object and is designed to increase knowledge of the oceans.94

China interprets the scope of msr particularly broad. This interpretation is supposed to bring under Chinese jurisdiction in the eez a wide range of activities, including hydrographic surveys and military surveys.95 But the losc expressly distinguishes between ‘research’ and ‘marine scientific research’ on the one hand, and ‘survey activities’ and ‘hydrographic surveys’ on the other.96 Moreover, losc Part xiii on msr does not refer to survey activities at all. Therefore, it is plausible to follow the position of the United States and many other countries that hydrographic and military surveys do not qualify as msr.97

The fact that Russia uses research vessels to collect data on critical infrastructure in the maritime domain does not as such trigger application of the rules on msr. The means and methods of data gathering are similar in msr, surveying, and other fields of marine data collection, and the data sets are often the same. Even military surveys are frequently conducted to get oceanographic, hydrographic, marine geological, geophysical, chemical, biological, or acoustic data.98 Therefore, the purpose of the collection and the actual use of the data are considered to be the decisive criteria for classifying a particular operation.99 All in all, according to the widely accepted definition of msr followed also by European States, the mapping of critical infrastructure does not fall under losc Part xiii. Consequently, coastal States cannot claim authority under this Part of the losc to prohibit such mapping activities in their eez s. This raises the question whether coastal States have jurisdiction to regulate and control marine data collection undertaken in the eez for purposes other than msr.

The losc occasionally refers to ‘survey activities’ and ‘hydrographic surveys’ without specifying these concepts. Remember that the iho defines ‘survey’ and ‘hydrographic survey’ in rather broad terms,100 which generally includes determining the position of objects on the seafloor and in superjacent waters, including the position of man-made structures and installations.

Under the regime of innocent passage, the conduct of survey activities by a foreign vessel in the territorial sea is considered prejudicial to the peace, good order, or security of the coastal State.101 Moreover, it is laid down in the losc that foreign ships may not carry out survey activities during transit passage through international straits without prior authorisation by the States bordering the straits.102 This rule applies mutatis mutandis during passage through archipelagic sea lanes.103 By contrast, survey activities in the eez are not subject to any specific limitation under the losc. Hence, it may be argued that hydrographic surveys, at least those conducted for the purpose of compiling nautical charts to enhance safety of navigation, are covered, in terms of losc Article 58(1), by the freedom of navigation or fall within the category ‘other internationally lawful uses of the sea’ related to this freedom.104

Some authors, however, stress that hydrographic surveys are not just about enhancing the safety of navigation.105 They explain that such surveys produce data which may have considerable economic value. The production of up-to-date charts is highly relevant for the exploration, exploitation, and management of the natural resources of the eez. In Sam Bateman’s view, it could even be argued that hydrographic surveying falls within the scope of “other activities for the economic exploitation and exploration of the zone” in terms of losc Article 56(1)(a).106 In essence, he claims that hydrographic surveying in the eez should be subject to coastal State jurisdiction to the extent that the survey is connected to resource-related activities that affect the sovereign rights of the coastal State in the eez.107 This would be the case, for example, if a survey is carried out in the context of a geophysical investigation of the oil or gas potential of a particular sea area.108 Later, it will be discussed how recourse to sovereign rights in the eez could provide coastal States with additional arguments to assert jurisdiction over foreign vessels whose activities pose a threat to critical infrastructure in the eez.109

For now, it should be noted that, according to the more conventional position, which is based on the assumption that hydrographic surveying constitutes an exercise of the freedom of navigation or another internationally lawful use of the sea, the coastal State has no power to regulate and control such survey activities by foreign vessels in its eez.

4.2 Controlling Military Surveys and Countering Espionage in the eez

Generally, it is debated whether States may conduct military surveys in a foreign eez without coastal State consent. A closely related issue, which is extremely controversial, concerns the lawfulness of intelligence collection in the eez.

4.2.1 Commentators’ Views

In the literature, it is widely acknowledged that military activities, such as exercises and manoeuvres, in the eez are not prohibited by the international law of the sea. More specifically, it is argued that such activities fall within the category of other internationally lawful uses of the sea related to the freedoms of navigation and overflight as referred to in losc Article 58(1).110 Proponents of this view maintain that military activities, including military data collection in the form of surveys, in a foreign eez do not require prior notification to, or authorisation by, the coastal State.111 The argument is supported by the fact that coastal States do not exercise sovereignty in the eez112 and that the losc does not explicitly vest them with jurisdiction over such activities in this zone.

However, there has been some discussion about whether maritime espionage runs contrary to the peaceful-purposes requirement, which applies on the high seas as well as in the eez. Mark Valencia and Ji Guoxing claimed that what was not ‘innocent’ in the territorial sea (referring to losc Article 19(2)(c): acts aimed at collecting information to the prejudice of the defence or security of the coastal State) could not be considered ‘peaceful’ in the eez.113 The meaning and reach of the losc concept of ‘peaceful purposes’ or ‘peaceful uses’ has proved particularly controversial.114 According to a widely shared understanding, Article 2(4) of the UN Charter sets the standard for evaluating whether a certain use or purpose is ‘peaceful’.115 losc Article 301 echoes Article 2(4) of the UN Charter by stipulating that, in exercising their rights and performing their duties under the losc, “States Parties shall refrain from any threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the principles of international law embodied in the Charter of the United Nations”. Espionage as such is generally not considered to fall within the scope of Article 2(4) of the UN Charter.116 Accordingly, it may be argued that the peaceful-purposes and peaceful-uses clauses contained in the losc do not prohibit intelligence collection in or from another State’s eez unless the activities are connected to an unlawful threat or use of force in the sense of Article 2(4) of the UN Charter.117

4.2.2 State Views and Practice

During the negotiations that led to the adoption of the losc in 1982, it was contested whether coastal States should have jurisdiction over military activities in their eez s. The final text of the Convention does not reflect proposals aimed at expanding coastal State jurisdiction in that direction. Still, several coastal States claim residual rights in the eez (i.e. rights that are not explicitly granted in the losc). To substantiate their claims, some of these States made declarations upon signature, ratification, or accession. For example, India declared that the provisions of the losc do not authorise States to carry out in the eez and on the continental shelf military exercises or manoeuvres without the consent of the coastal State.118 Other countries enacted legislation to prevent certain conduct in their eez s. Iranian domestic law stipulates that foreign military activities and practices as well as the collection of information “and any other activity inconsistent with the rights and interests of the Islamic Republic of Iran” in the eez and on the continental shelf are prohibited.119

China claims particularly broad security jurisdiction over its eez.120 Its position rests on a restrictive interpretation of the notion of internationally lawful uses of the sea (excluding foreign military activities in the eez) and on an expansive understanding of what constitutes msr.121 Based on these interpretations, China insists that, without its approval, other States are not allowed to gather intelligence and conduct military surveys within its eez.122 China’s surveying and mapping law,123 which also applies to military surveying and mapping, establishes strict conditions for such activities. The law states that foreign organisations or individuals that wish to undertake surveying and mapping in China’s airspace, on its land territory, in its territorial waters, or in other sea areas under its jurisdiction, shall be subject to approval by Chinese authorities and shall observe relevant laws and regulations.124 Moreover, it is provided in the law that such activities must be carried out jointly with competent Chinese authorities and must not involve State secrets or endanger the security of the People’s Republic of China.125 When it comes to enforcement, China is particularly determined to prevent foreign warships and submarines from navigating in its eez.126

A large number of countries take the contrary position that coastal State jurisdiction over the eez does not encompass regulating security matters and military activities in that zone. At the Third UN Conference on the Law of the Sea (unclos iii), the United States stressed that military operations, exercises, and activities have always been regarded as internationally lawful uses of the sea and that the right to conduct such activities would continue to be enjoyed by all States in the eez.127 Moreover, the United States insists that hydrographic and military surveys are not subject to coastal State jurisdiction and can be carried out as internationally lawful uses of the sea in the eez without coastal State consent.128 The dispute between the United States and China over these issues frequently leads to encounters between US survey and surveillance vessels operating in China’s claimed eez and Chinese navy ships supported by patrol boats and fishing vessels.129

Many European countries adhere to the US position and maintain that the jurisdiction of coastal States in the eez does not go beyond what is explicitly regulated in losc Part v. Sweden emphasised that ships do not need to notify the coastal State or seek prior authorisation from it when exercising their rights under the principle of the freedom of the high seas, including the freedom of navigation outside the territorial sea.130 The freedom of navigation, according to Sweden, encompasses all activities by ships, including warships and naval auxiliaries, that are lawful under international law and that are conducted in accordance with the losc.131 Similar views have been expressed by Belgium,132 France,133 Germany,134 Italy,135 the Netherlands,136 and the United Kingdom.137

Russia’s position concerning the reach of coastal State jurisdiction in the eez is reflected in its national legislation, which reproduces the language of losc Article 58(1).138 According to this legislation, the Russian Federation shall not hinder in its eez navigation, overflights, or the exercise of other rights and freedoms by other States “in accordance with the generally recognised principles and norms of international law”.139 At the same time, Russia’s 2022 Maritime Doctrine states that ensuring sovereign rights and jurisdiction of the Russian Federation in the eez and on the continental shelf constitutes a national interest.140

Overall, the practice and legal positions of States are too inconsistent to draw straightforward conclusions as to whether intelligence collection operations in a foreign eez constitute internationally lawful uses of the sea within the meaning of losc Article 58(1). This issue is highly politicised and still ranges among the most controversial questions relating to the legal order of the eez.

4.3 Protecting Sovereign Rights in the eez and on the Continental Shelf

Russian mapping of critical infrastructure in the North and Baltic Seas does not only pose a security threat in the sense that, in the event of strategically targeted acts of sabotage, communications as well as power and energy supply lines could be disrupted for an extended period of time. Rather, the breakdown or destruction of certain infrastructure in the eez and on the continental shelf could also have the effect of preventing the coastal State from exercising its sovereign rights in the zone and on the shelf.

The coastal State has the right to counter any interference with its sovereign rights in the eez and on the continental shelf. This arguably includes the right to take reasonable, necessary, and proportionate measures against foreign vessels involved in such interference. In the Arctic Sunrise arbitral award of 2015, the Arbitral Tribunal referred to a number of possible legal bases for enforcement action.141 For example, the Tribunal held that ships reasonably believed to be involved in a terrorist attack on a coastal State’s installation or structure in the eez may be subject to “some form of preventive action” by that State.142 In the view of the Tribunal, such an attack, if allowed to occur, would involve a direct interference with the exercise by the coastal State of its sovereign right to exploit the non-living resources of the seabed in the eez.143 This dictum can also be applied to acts of sabotage committed by or on behalf of a State. In any event, coastal States are entitled to protect the integrity of the infrastructure serving the exercise of sovereign rights in the eez and on the continental shelf.144

4.3.1 Infrastructure Serving the Coastal State in the Exercise of its Sovereign Rights

This category includes installations and structures constructed and operated for the purposes referred to in losc Article 56(1)(a) and Article 77(1). Examples are offshore wind farms as well as oil and gas platforms with their related installations and structures. Submarine cables and pipelines used in connection with the exploration of the continental shelf or with the exploitation of its resources are subject to coastal State jurisdiction according to losc Article 79(4). The same is true for cables and pipelines used for the operations of artificial islands, installations, and structures that fall under the coastal State’s jurisdiction.145 As far as submarine pipelines are concerned, losc Article 79(4) applies to field-to-coast pipelines running from a drilling platform on the continental shelf to the shores of the coastal State. In addition, field-to-field pipelines, which connect two or more oil or gas fields on the same continental shelf, as well as intra-field pipelines are also covered. All such installations, structures, cables, and pipelines in the eez and on the continental shelf fall under the jurisdiction of the coastal State and may be actively protected by that State.

The situation is different for transit cables and transit pipelines that cross the continental shelf without serving the coastal State in the exercise of its sovereign rights in the eez or on the continental shelf. Jurisdiction over these cables and pipelines remains with the States that are responsible for laying the cable or pipeline. The coastal State has jurisdiction over transit cables or pipelines on the continental shelf only if they also run through its territorial sea (which is confirmed by losc Article 79(4)146), or if the coastal State has itself laid the cable or pipeline.

In general, the right to lay submarine cables and pipelines on the continental shelf, which is granted to all States by losc Article 79(1), entails the right to take the necessary measures to ensure the safe and smooth operation of the cable or pipeline,147 which includes monitoring and surveillance of the infrastructure.148 But what is the specific legal basis for enforcement action against vessels involved in the preparation of sabotage of such infrastructure in the eez or on the continental shelf? And what measures could be taken?

4.3.2 Searching for Specific Legal Authority to Take Action against Foreign Vessels

In the Arctic Sunrise award, the Arbitral Tribunal emphasised that any measures taken by a coastal State to protect its sovereign rights in the eez and on the continental shelf must meet the test of reasonableness, necessity, and proportionality.149 The Tribunal considered that it would be reasonable for a coastal State to act to prevent, among other things, “dangerous situations that can result in injuries to persons and damage to equipment and installations”, negative environmental consequences, and delay or interruption in essential operations.150 With regard to protecting these legitimate interests, the following norms are of particular relevance: losc Articles 79(2), 208, and 214, which grant specific powers for preventing marine pollution from pipelines, and losc Article 60(4), which allows for taking appropriate measures within safety zones to ensure the safety both of navigation and of certain installations and structures in the eez.

4.3.2.1 Protection of the Marine Environment against Pipeline Sabotage

losc Article 79(2) mentions the right of the coastal State to take reasonable measures for the prevention, reduction, and control of pollution from pipelines. The criterion of reasonableness is deliberately vague so that it can be applied to many different situations. Therefore, Article 79(2) is considered by some authors to provide coastal States with fairly broad jurisdiction, including even criminal jurisdiction over foreign ships that have caused damage to pipelines laid on the continental shelf by third States.151

An obligation to prevent pollution from pipelines follows from losc Articles 208 and 214. According to Article 208(1), coastal States shall adopt laws and regulations to prevent, reduce, and control pollution of the marine environment arising from or in connection with seabed activities subject to their jurisdiction152 as well as pollution from artificial islands, installations, and structures under their jurisdiction. Article 214 determines that States shall enforce their laws and regulations adopted in accordance with article 208. The obligations established by Articles 208 and 214 may be understood to imply that States must ensure that pipelines under their jurisdiction are adequately protected against certain dangers,153 including dangers resulting from wilful or culpable negligent breaking or injury of the pipeline. Such responsibility would lie with the State that laid the pipeline under losc Article 79(1) or, as the case may be, with the coastal State exercising jurisdiction under Article 79(4).154

Given the potential scale of marine pollution that could be caused by a broken pipeline on the seabed, it is not too far-fetched to argue that enforcement action could be taken against vessels that are reasonably suspected of carrying out or preparing acts of sabotage against a pipeline – at least if there is an imminent threat and the flag State is unable or unwilling to stop the ship. Such countermeasures may be justified not only for the protection of the marine environment but also in light of the principle that the eez – just like the high seas – shall be reserved for peaceful purposes.155 I will return to this aspect in section 5.

In addition to the enormous damage it can cause to the marine environment as such, pipeline sabotage will have a massive negative impact on the living resources in the area where the pipeline gets ruptured. Coastal States cannot be expected to stand idly by when their sovereign rights to exploit the living resources of the eez and of the continental shelf are violated by foreign vessels engaged in such attacks. As already emphasised, each coastal State has a legitimate interest in ensuring that the activities of foreign ships in its eez and on its continental shelf do not infringe upon its sovereign economic rights. Accordingly, losc Article 73(1) empowers coastal States, in the exercise of their sovereign rights for the exploration, exploitation, conservation, and management of the living resources in the eez, to take the necessary enforcement measures, including boarding, inspection, arrest, and judicial proceedings, to ensure compliance with their applicable laws and regulations. Article 73(1) has been interpreted by some authors as covering the right of the coastal State to take such measures to prevent any conduct harmful to a pipeline.156

4.3.2.2 Creating Enforcement Space in the Form of Safety Zones

losc Article 60(4) allows the coastal State to establish, where necessary, reasonable safety zones around artificial islands and certain installations and structures157 in its eez. According to losc Article 80, Article 60 applies mutatis mutandis also to artificial islands, installations, and structures on the continental shelf.

In a safety zone, the coastal State may take appropriate measures to ensure the safety both of navigation and of the artificial islands, installations, and structures. According to Alexander Proelss “it seems difficult to deny the coastal state a broad scope of discretion as to the necessity of the zones”.158 In any case, a safety zone must be reasonably related to the nature and function of the protected objects and shall generally not exceed a distance of 500 metres around them.159 Such zones must be respected by all ships.160 The measures the coastal State may take within a safety zone arguably range from defining traffic lanes, tracking movements, and imposing certain traffic restrictions to completely prohibiting entrance.161

While safety zones within the meaning of Article 60(4) can be drawn, for example, around wind farms or oil and gas platforms, the losc does not regulate the establishment of safety zones or protection corridors for submarine cables and pipelines located on the continental shelf beneath eez waters. Some States have nevertheless declared such zones or corridors.162 Whether this practice is in accordance with the losc is a highly controversial issue.163 Supporters argue that coastal States may restrict or prohibit certain activities, such as anchoring, bottom trawling, and drilling in the immediate vicinity of a cable or pipeline.164 At the same time, it is held that such regulations must not impede the freedom of navigation in the waters above the cables or pipelines. Authority to establish safety zones or protection corridors for cables and pipelines within the eez and on the continental shelf may arguably be derived from the coastal State’s sovereign rights and jurisdiction under losc Article 56(1)(a) and Article 77(1). According to Stuart Kaye, “protection over a cable could be achieved by restricting activities which could be validly regulated in the eez or continental shelf”.165

Unauthorised entry into a safety zone does not in itself justify boarding the vessel without the consent of the flag State.166 However, if a ship entering a safety zone is reasonably suspected of being engaged in terrorist acts or sabotage against the infrastructure in the zone, coastal States must have the right to take appropriate enforcement measures against the ship in accordance with losc Article 60(4). In the ‘Arctic Sunrise’ case (Provisional Measures) before the International Tribunal for the Law of the Sea, Judges Wolfrum and Kelly explained in their Joint Separate Opinion that the coastal State’s exclusive jurisdiction under losc Article 60(2) generally includes legislative jurisdiction as well as corresponding enforcement jurisdiction.167 More specifically, they emphasised that coastal States exercise enforcement functions in respect of the protection of the objects within a safety zone in the eez. Judge Golitsyn stated in his Dissenting Opinion that reference in Article 60(4) to the right of the coastal State to take appropriate measures means that the coastal State has the power to take the necessary enforcement measures to ensure compliance with its regulations governing activities within a safety zone.168

Moreover, in the Arctic Sunrise arbitral award, the Arbitration Tribunal found that a coastal State is entitled to adopt law enforcement measures in relation to possible terrorist offences committed within a safety zone.169 In the Tribunal’s opinion, this includes the boarding, seizure, and detention of a vessel, where the coastal State has reasonable grounds to suspect that the vessel is engaged in terrorist offences against an installation or structure on the continental shelf.170 In this context, it is worth mentioning that losc Article 111(2) stipulates that the right of hot pursuit applies mutatis mutandis to violations in the eez or on the continental shelf, including in safety zones, of coastal State laws and regulations applicable to the eez or the continental shelf, including such safety zones.

However, the Arbitral Tribunal also cautioned in Arctic Sunrise that there is no right to seize or board vessels in the eez – probably meaning outside a safety zone within the eez – in relation to terrorist offences where such measures would not otherwise be authorised by the losc.171

4.3.3 Resorting to Unwritten Authority in the eez?

Given the fact that the legal regime of the eez has been carefully designed to balance the freedoms of the high seas with the sovereign rights and jurisdiction of coastal States, it is difficult to argue that coastal States can claim residual rights and jurisdiction in the eez. As explained above, many European countries take the position that the jurisdiction of coastal States in the eez does not go beyond what is explicitly regulated in losc Part v.

Even the argument that each coastal State has a legitimate interest in ensuring that activities by foreign vessels in its eez do not infringe on its sovereign rights relating to the exploration and exploitation of the zone is probably not strong enough to construe enforcement jurisdiction in the eez more broadly, i.e. not limited to safety zones or the protection of the marine environment. losc Article 73(1), which relates to the exercise of the sovereign rights to explore, exploit, manage, and conserve the living resources in the eez, is unique in providing coastal States with distinct authority to take robust action against foreign ships threatening the exercise of these sovereign rights. At unclos iii, proposals were made to grant coastal States enforcement powers also with regard to the non-living resources in the eez. But these initiatives were not successful.172 Nevertheless, the Arbitral Tribunal in Arctic Sunrise was convinced that coastal States have jurisdiction to take measures to prevent interference with their sovereign rights for the exploration and exploitation of the non-living resources of the eez,173 and to enforce their laws in relation to the non-living resources in the eez.174 However, the Tribunal abstained from defining the scope of this jurisdiction.

The bottom line is that the law of the sea does not give coastal States clear and comprehensive powers to prevent the mapping of critical infrastructure in the eez. Resorting to residual rights and jurisdiction (i.e. claiming rights and jurisdiction not explicitly provided for in the losc) to fill this gap would be closer to China’s or Iran’s vision of the eez than to the liberal position traditionally held by Western States.

5 Outlook

Upon accession to the losc in 1994, Germany emphasised that the guarantee that all States enjoy in the eez the freedom of navigation, and are allowed to make other internationally lawful uses related to this freedom, must not be misused as a shield to interfere with the coastal State’s security or with its rights and obligations under international law.175 This postulate is reflected in losc Article 300, according to which the parties to the Convention shall fulfil in good faith their obligations and shall exercise their rights, jurisdiction, and freedoms under the Convention in a manner that would not constitute an abuse of right. However, the conflict with Russia addressed in this paper is far beyond the spectrum of situations that the drafters of Article 300 probably had in mind. As far as the issue of residual rights is concerned, this conflict cannot be resolved, as losc Article 59 proclaims, by balancing competing interests “on the basis of equity and in the light of all the relevant circumstances”.

Recent mapping operations by Russian vessels in the North and Baltic Seas are part of a hybrid campaign against nato members. The operations are carried out with hostile intent as Russia seeks to intimidate and destabilise Western societies. This includes weakening the European economy by creating a climate of insecurity and deterring potential investors from putting money into new offshore projects in the communications, electricity, and energy sectors. Moreover, it must be assumed that the mapping operations are intended to provide the Russian military with the necessary information to carry out strategic attacks on particularly critical parts of the Western maritime infrastructure in the event of a military escalation of the conflict with nato. In the literature, it has been suggested that military activities which are threatening in nature and are carried out with clear bad intention or in a hostile manner should generally be regarded as being prohibited in the eez.176 In line with this position, it could be argued that the activities of Russian spy ships in the eez s of nato countries in the North and Baltic Seas violate the principle that this zone is reserved for peaceful purposes. However, assuming that Article 2(4) of the UN Charter sets the standard for assessing whether a particular activity is consistent with the peaceful-purposes principle,177 it is debatable whether the relevant threshold has yet been crossed. In view of Russia’s constant escalation of the conflict with nato, its operations in the North and Baltic Seas must be perceived as a more or less subtle threat. The question is whether this provocative show of force already constitutes a threat of force within the meaning of Article 2(4) of the UN Charter, as the precise contours of the concept of a threat of force are disputed.178 Apart from that, Article 2(4) will certainly be triggered by attributable acts of sabotage against a State’s critical infrastructure. In such cases, the law of State responsibility allows for proportional countermeasures short of the use of force. To the extent that an act of sabotage amounts to an armed attack, the attacked State has the right of self-defence under Article 51 of the UN Charter.179

1

For a general overview, see C. Bueger and T. Liebetrau, ‘Critical Maritime Infrastructure Protection: What’s the Trouble?’, 155 Marine Policy (2023) Article 105772.

2

C. Bueger et al., ‘Security Threats to Undersea Communications Cables and Infrastructure – Consequences for the EU’ (European Parliament In-Depth Analysis, June 2022), <www.europarl.europa.eu/thinktank/en/document/EXPO_IDA(2022)702557>, p. 29. All websites visited on 15 March 2024.

3

M. Soendergaard Larsen, ‘Russian “Ghost Ships” Are Turning the Seabed into a Future Battlefield’, Foreign Policy, 2 May 2023, <https://foreignpolicy.com/2023/05/02/russia-europe-denmark-spy-surveillance-ships-seabed-cables/>.

4

‘4.3 Kilometers of Subsea Cable Vanished off North Norwegian Coast’, High North News, 10 November 2021, <www.highnorthnews.com/en/43-kilometers-subsea-cable-vanished-north-norwegian-coast>.

5

A. Staalesen, ‘“Human Activity” behind Svalbard Cable Disruption’, The Barents Observer, 11 February 2022, <https://thebarentsobserver.com/en/security/2022/02/unknown-human-activity-behind-svalbard-cable-disruption>.

6

‘Shetland Communication Restored after Subsea Cable Damage’, bbc News, 21 October 2022, <www.bbc.com/news/uk-scotland-north-east-orkney-shetland-63337473>.

7

A. Kauranen and T. Solsvik, ‘Finland Says “Outside Activity” Likely Damaged Gas Pipeline, Telecommunications Cable’, Reuters, 11 October 2023, <www.reuters.com/markets/commodities/finnish-government-hold-news-conference-suspected-pipeline-leak-media-2023-10-10/>.

8

N. Fastrup et al., ‘Skyggekrigen – Afsløring: Russiske spionskibe forbereder mulig sabotage mod havvindmøller, gasrør og strømkabler i Danmark og Norden’, Danish Broadcasting Corporation (dr), 19 April 2023, <www.dr.dk/nyheder/indland/moerklagt/afsloering-russiske-spionskibe-forbereder-mulig-sabotage-mod>. For the television documentary, see ‘Skyggekrigen’, dr 1, <www.dr.dk/drtv/serie/skyggekrigen_382298>.

9

See J. Barnes, ‘Russian “Spy Ships” Threaten to Sabotage UK Energy Supply’, The Telegraph, 19 April 2023, <www.telegraph.co.uk/world-news/2023/04/19/russia-ukraine-war-spy-ships-europe-energy-infrastructure/>; K. Connolly, ‘Russian Spy Network Operating in North Sea, Investigation Claims’, The Guardian, 19 April 2023, <www.theguardian.com/world/2023/apr/19/russian-spy-network-operating-in-north-sea-investigation-claims>.

10

For a chart showing the location of cables in the North and Baltic Seas, see K. Adler, ‘A Journey to the Site of the Nord Stream Explosions’, bbc News, 18 November 2022, <www.bbc.com/news/world-63636181>.

11

For a chart showing the location of gas pipelines in the North and Baltic Seas, see ibid.

12

Barnes, supra note 9. See also ‘Russian Spy Ships Mapping Undersea Infrastructure in the North Sea’, Navy Lookout, 20 April 2023, <www.navylookout.com/russian-spy-ships-mapping-undersea-infrastructure-in-the-north-sea/>.

13

See Soendergaard Larsen, supra note 3.

14

S. Kaushal, ‘Stalking the Seabed: How Russia Targets Critical Undersea Infrastructure’ (rusi Commentary, 25 May 2023), <https://rusi.org/explore-our-research/publications/commentary/stalking-seabed-how-russia-targets-critical-undersea-infrastructure>.

15

C. Bueger, ‘Russian “Spy Ship” in North Sea Raises Concerns about the Vulnerability of Key Maritime Infrastructure’, The Conversation, 20 April 2023, <https://theconversation.com/russian-spy-ship-in-north-sea-raises-concerns-about-the-vulnerability-of-key-maritime-infrastructure-204205>.

16

Ibid.

17

D. E. Sanger and E. Schmitt, ‘Russian Ships near Data Cables Are too Close for US Comfort’, The New York Times, 25 October 2015, <www.nytimes.com/2015/10/26/world/europe/russian-presence-near-undersea-cables-concerns-us.html>.

18

C. Gleeson, ‘Russian Spy Ship Spotted off West Coast of Ireland’, The Irish Times, 18 August 2021, <www.irishtimes.com/news/ireland/irish-news/russian-spy-ship-spotted-off-west-coast-of-ireland-1.4650443>.

19

Kaushal, supra note 14.

20

Ibid.

21

Navy Lookout, supra note 12.

22

Maritime Doctrine of the Russian Federation, 31 July 2022, para. 84 (translated by A. Davis and R. Vest, Russia Maritime Studies Institute, US Naval War College), <https://usnwc.edu/Research-and-Wargaming/Research-Centers/Russia-Maritime-Studies-Institute>.

23

Ibid., para. 85(9).

24

See C. Duxbury and C. Chiappa, ‘Northern Europe’s New Naval Priority: Submarine Sabotage’, Politico, 2 January 2024, <www.politico.eu/article/northern-europe-naval-priority-submarine-sabotage/?s=03#>.

25

UK Prime Minister’s Office, ‘pm Accelerates Military Support to Northern Europe following Visit to Sweden’, Press Release, 13 October 2023, <www.gov.uk/government/news/pm-accelerates-military-support-to-northern-europe-following-visit-to-sweden>.

26

UN Convention on the Law of the Sea, 10 December 1982, 1833 unts p. 3. The Russian Federation is a party to the Convention. The Convention reflects, to a large extent, customary international law.

27

See R. A. Barnes, ‘Article 25’, in A. Proelss (ed.), United Nations Convention on the Law of the Sea: A Commentary (C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2017) pp. 224–225 (mn 5–8); R. Churchill et al., The Law of the Sea (4th edn., Manchester University Press, Manchester, 2022) pp. 149, 159, and 164. However, it is unclear whether and, if so, at what degree of suspicion the coastal State may take preventive action against a foreign ship. See W. Graf Vitzthum, ‘Maritimes Aquitorium und Anschlusszone’, in W. Graf Vitzthum (ed.), Handbuch des Seerechts (C.H. Beck, München, 2006) p. 124 (note 338 on that page).

28

See M/V “Saiga” (No. 2) Case (Saint Vincent and the Grenadines v. Guinea), 1 July 1999, itlos, Judgment, paras. 155–156, <www.itlos.org/en/main/cases/list-of-cases/case-no-2/>.

29

See losc Article 32.

30

losc Article 30.

31

Curchill et al., supra note 27, p. 164.

32

According to losc Article 18(1), passage means “navigation through the territorial sea for the purpose of: (a) traversing that sea without entering internal waters or calling at a roadstead or port facility outside internal waters; or (b) proceeding to or from internal waters or a call at such roadstead or port facility”.

33

Curchill et al., supra note 27, p. 142.

34

See J. Kraska, ‘Intelligence Collection and the International Law of the Sea’, 99 International Law Studies (2022) p. 620 [hereinafter Kraska, ‘Intelligence Collection’].

35

Ibid.

36

Ibid., p. 621.

37

R. A. Barnes, ‘Article 19’, in Proelss (ed.), supra note 27, p. 193 (mn 17).

38

Convention on the Territorial Sea and the Contiguous Zone, 29 April 1958, 516 unts p. 205.

39

J. Kraska, ‘Putting Your Head in the Tiger’s Mouth: Submarine Espionage in Territorial Waters’, 54 Columbia Journal of Transnational Law (2015) pp. 227–228 [hereinafter Kraska, ‘Submarine Espionage’]; Kraska, ‘Intelligence Collection’, supra note 34, pp. 624–625.

40

See Kraska, ‘Submarine Espionage’, supra note 39, pp. 226–229; Kraska, ‘Intelligence Collection’, supra note 34, pp. 623–625.

41

Kraska, ‘Submarine Espionage’, supra note 39, p. 226; Kraska, ‘Intelligence Collection’, supra note 34, p. 623.

42

See, e.g., T. E. Hutchins, ‘Maritime Espionage and the Legal Consequences of the United States’ Potential Ratification of the United Nations Convention on the Law of the Sea’, 8:1 National Security Law Journal (2021) pp. 26–27. He argues that the theory of non-innocent passage would undermine the carefully balanced provisions of the losc.

43

Even if the theory of non-innocent passage is followed, espionage in the territorial sea of another State will usually contravene that State’s national laws. Moreover, the physical intrusion of spies into another State’s territory may be regarded as amounting to a violation of that State’s territorial sovereignty. See, e.g., S. Chesterman, ‘The Spy Who Came In from the Cold War: Intelligence and International Law’, 27:4 Michigan Journal of International Law (2006) p. 1082; S. Duroy, The Regulation of Intelligence Activities under International Law (Elgar International Law, Cheltenham (UK)/Northampton (MA, USA), 2023) pp. 50–52.

44

losc Article 21(1).

45

losc Article 21(4).

46

M. Kashubsky and A. Morrison, ‘Security of Offshore Oil and Gas Facilities: Exclusion Zones and Ships’ Routeing’, 5:1 Australian Journal of Maritime and Ocean Affairs (2013) p. 2.

47

T. Davenport, ‘Submarine Communications Cables and Law of the Sea: Problems in Law and Practice’, 43:3 Ocean Development & International Law (2012) pp. 217–218.

48

S. Wolf, Unterseeische Rohrleitungen und Meeresumweltschutz (Springer, Heidelberg et al., 2011) p. 181.

49

losc Article 22(1).

50

losc Article 25(3).

51

Kashubsky and Morrison, supra note 46, p. 3.

52

See Barnes, ‘Article 25’, supra note 27, p. 226 (mn 14).

53

See Adler, supra note 10.

54

losc Part iii does not apply if there exists through the strait a route through the high seas or through an eez of similar convenience with respect to navigational and hydrographical characteristics. In such routes, the other relevant Parts of the losc, including the provisions regarding the freedoms of navigation and overflight, apply (losc Article 36).

55

Kraska, ‘Submarine Espionage’, supra note 39, p. 221.

56

Churchill et al., supra note 27, p. 171.

57

See J. A. Roach, Excessive Maritime Claims (4th edn., Brill Nijhoff, Leiden/Boston, 2021) pp. 389–390.

58

Y. Tanaka, The International Law of the Sea (3rd edn., Cambridge University Press, Cambridge, 2019) p. 124.

59

Jurisdiction to adopt laws and regulations relating to transit passage is granted by losc Article 42. Jurisdiction under this provision is more limited than coastal State jurisdiction to adopt laws and regulations relating to innocent passage through the territorial sea under losc Article 21. Moreover, laws and regulations adopted under Article 42 shall not, in their application, have the practical effect of denying, hampering, or impairing the right of transit passage.

60

losc Article 233 provides that States bordering a strait may take appropriate enforcement measures if a foreign ship has committed a violation of the laws and regulations referred to in Article 42(1)(a) and (b) (in respect to the safety of navigation and the regulation of maritime traffic, or in respect of the prevention, reduction, and control of pollution regarding the discharge of oil, oily wastes, and other noxious substances in the strait) and is thereby causing or threatening to cause major damage to the marine environment of the strait.

61

See B. B. Jia, ‘Article 38’, in Proelss (ed.), supra note 27, p. 299 (mn 21); Churchill et al., supra note 27, p. 175. See also supra notes 55 and 56 and accompanying text. For a different view, see Graf Vitzthum, supra note 27, p. 145 (mn 173) (arguing that “the other applicable provisions of this Convention” within the meaning of losc Article 38(3) do not encompass the rules on innocent passage in the territorial sea).

62

See in particular losc Articles 41(7) (obligation to respect applicable sea lanes and traffic separation schemes) and 42(4) (obligation to comply with laws and regulations relating to transit passage adopted by States bordering straits under Article 42).

63

See B. B. Jia, The Regime of Straits in International Law (Clarendon Press, Oxford, 1998) pp. 150–152; M. Hayashi, ‘Military and Intelligence Gathering Activities in the eez: Definition of Key Terms’, 29:2 Marine Policy (2005) pp. 123, 134. losc Part iii does not contain any provision equivalent to Article 20. This arguably implies that submarines and other underwater vehicles may transit through the strait in their normal mode of navigating below the surface. See also Tanaka, supra note 58, p. 124.

64

Hutchins, supra note 42, pp. 29–30.

65

Kraska, ‘Submarine Espionage’, supra note 39, p. 222.

66

iho Hydrographic Dictionary, ‘survey’, <http://iho-ohi.net/S32/engView.php?page=262>.

67

Ibid., ‘survey: hydrographic’, <http://iho-ohi.net/S32/engView.php?page=263>.

68

See B. B. Jia, ‘Article 39’, in Proelss (ed.), supra note 27, pp. 301 (mn 2) and 303 (mn 8); Churchill et al., supra note 27, pp. 174 and 177.

69

Jia, ‘Article 38’, supra note 61, p. 298 (mn 17).

70

losc Article 45(1)(a) in connection with Article 38(1).

71

losc Article 45(1)(b).

72

Churchill et al., supra note 27, p. 173.

73

losc Article 45(2).

74

losc Article 25(3).

75

See Roach, supra note 57, p. 390.

76

Treaty for the Redemption of the Sound Dues between Austria, Belgium, France, Great Britain, Hanover, the Hansa Towns, Mecklenburg-Schwerin, the Netherlands, Oldenburg, Prussia, Russia, Sweden-Norway and Denmark, 14 March 1857, 116 Consolidated Treaty Series (1969) p. 357; Convention for the Discontinuance of the Sound Dues between Denmark and the United States, 11 April 1857, 116 Consolidated Treaty Series (1969) p. 465. The relevant treaty provisions are referenced by A. G. Oude Elferink, ‘The Regime of Passage through the Danish Straits’, 15:4 The International Journal of Marine and Coastal Law (2000) pp. 559–565.

77

See declaration by Denmark upon ratification of the losc, 16 November 2004. See also declaration by Sweden upon signature and confirmed upon ratification of the losc, 10 December 1982 and 25 June 1996. The declarations are available at UN Treaty Collection, Status of Treaties, Chapter xxi: Law of the Sea, UN Convention on the Law of the Sea (database) [hereinafter untc Status of Treaties database], <https://treaties.un.org/pages/ViewDetailsIII.aspx?src=TREATY&mtdsg_no=XXI-6&chapter=21&Temp=mtdsg3&clang=_en>.

78

Treaty for the Redemption of the Sound Dues, supra note 76, Article 1.

79

See Oude Elferink, supra note 76, p. 559.

80

Curchill et al., supra note 27, p. 184.

81

Oude Elferink, supra note 76, p. 565.

82

Ibid., pp. 562 and 566.

83

See declaration by Finland upon signature and confirmed upon ratification of the losc, 10 December 1982 and 21 June 1996. See also declaration by Sweden upon signature and confirmed upon ratification of the losc, 10 December 1982 and 25 June 1996. Both declarations are available at untc Status of Treaty database, supra note 77.

84

Convention Relating to the Non-Fortification and Neutralisation of the Aaland Islands, 20 October 1921, available at UN Library and Archives, Geneva, <https://archives.ungeneva.org/aaland-islands-convention-relating-to-non-fortification-and-neutralisation-of-the-islands-conference-on-aaland-islands-final-text-of-the-convention-as-published-and-original-signed-text-and-maps-c-i-a-12-c-419-m-300>. For further international agreements applying to the Åland Islands, see S. Harck, ‘Åland Islands’, in A. Peters (ed.), Max Planck Encyclopedia of Public International Law (Oxford University Press, Oxford, 2024, online) (article last updated January 2008).

85

A. Lott, Hybrid Threats and the Law of the Sea: Use of Force and Discriminatory Navigational Restrictions in Straits (Brill Nijhoff, Leiden/Boston, 2022) p. 223.

86

Roach, supra note 57, p. 316 (also noting that the United States has never recognised the Åland Strait as falling within the scope of losc Article 35(c)).

87

losc Articles 55 and 57.

88

See, e.g., J. Kish (D. Turns ed.), International Law and Espionage (Martinus Nijhoff Publishers, The Hague/ Boston/London, 1995) pp. 102–110.

89

losc Article 58(2) in connection with Article 88.

90

losc Article 58(3).

91

losc Article 56(2).

92

Roach, supra note 57, pp. 486–501.

93

See in particular losc Article 56(1)(b)(ii) in connction with Articles 246, 248, 249, and 253. However, there is no legal basis in the losc for a coastal State to stop and inspect foreign research vessels exercising the freedom of navigation in its eez on suspicion that they are engaged in unauthorised msr.

94

Tanaka, supra note 58, p. 433. See also T. Treves, ‘Marine Scientific Research’, in Peters (ed.), supra note 84, para. 1 (article last updated December 2008).

95

See I. B. Kardon, China’s Law of the Sea (Yale University Press, New Haven/London, 2023) pp. 189–191.

96

See Articles 19(2)(j), 21(1)(g), 40, and 54.

97

See S. Bateman, ‘Hydrographic Surveying in the eez: Differences and Overlaps with Marine Scientific Research’, 29:2 Marine Policy (2005) pp. 164–166 [hereinafter Bateman, ‘Hydrographic Surveying in the eez’]; Roach, supra note 57, pp. 488 and 491–492.

98

Roach, supra note 57, p. 494.

99

See, e.g., E. Papastavridis, ‘Intelligence Gathering in the Exclusive Economic Zone’, 93 International Law Studies (2017) pp. 451–452; Roach, supra note 57, p. 541. For a different view, see S. Bateman, ‘A Response to Pedrozo: The Wider Utility of Hydrographic Surveys’, 10:1 Chinese Journal of International Law (2011) p. 179 [hereinafter Bateman, ‘The Wider Utility of Hydrographic Surveys’].

100

Supra note 66 and 67.

101

losc Article 19(2)(j).

102

losc Article 40.

103

losc Article 54.

104

See, e.g., Roach, supra note 57, p. 493.

105

Bateman, ‘The Wider Utility of Hydrographic Surveys’, supra note 99, pp. 178 and 183; Tanaka, supra note 58, p. 442.

106

Bateman, ‘The Wider Utility of Hydrographic Surveys’, supra note 99, p. 181.

107

Bateman, ‘Hydrographic Surveying in the eez’, supra note 97, pp.165 and 169.

108

Ibid.

109

See subsection 4.3.

110

See, e.g., K. Zou, ‘Peaceful Use of the Sea and Military Intelligence Gathering in the eez’, 22 Asian Yearbook of International Law (2016) p. 164; Papastavridis, supra note 99, p. 471; Kraska, ‘Intelligence Collection’, supra note 34, p. 611; R. (P.) Pedrozo, ‘The Legal Framework Applicable to Intrusive Intelligence, Surveillance, and Reconnaissance Operations in the Air and Maritime Domains’, 99 International Law Studies (2022) p. 853.

111

See, e.g., Roach, supra note 57, pp. 493–494.

112

See losc Article 58(2) in conjunction with Article 89.

113

M. J. Valencia and Ji Guoxing, ‘The “North Korean” Ship and U.S. Spy Plane Incidents: Similarities, Differences, and Lessons Learned’, 42:5 Asian Survey (2002) p. 730.

114

See D. Guilfoyle, ‘The High Seas’, in D. R. Rothwell et al. (eds.), The Oxford Handbook of the Law of the Sea (Oxford University Press, Oxford, 2015) pp. 210–212.

115

See, e.g., D. Guilfoyle, ‘Article 88’, in Proelss (ed.), supra note 27, p. 684–685 (mn 4–5); K. O’Brien, ‘Article 301’, in Proelss (ed.), supra note 27, p. 1944 (mn 2); Kraska, ‘Intelligence Collection’, supra note 34, p. 609.

116

See, e.g., T. Kliem, ‘You Can’t Cyber in Here, this Is the War Room! A Rejection of the Effects Doctrine on Cyber War and the Use of Force in International Law’, 4:2 Journal on the Use of Force and International Law (2017) pp. 355–356; O. Corten, The Law against War (2nd edn., Hart, Oxford et al., 2021) p. 100. With regard to naval intelligence collection, see Kraska, ‘Intelligence Collection’, supra note 34, pp. 630–634.

117

See, e.g., Hayashi, supra note 63, p. 130 (with a differentiated view on highly intrusive intelligence gathering systems); Papastavridis, supra note 99, pp. 471 and 475.

118

Declaration upon ratification of the losc, 29 June 1995. Similar declarations were made by Bangladesh, Brazil, Cabo Verde, Ecuador, Malaysia, Pakistan, Thailand, and Uruguay. The declarations are available at untc Status of Treaty database, supra note 77.

119

Act on the Marine Areas of the Islamic Republic of Iran in the Persian Gulf and the Oman Sea, 2 May 1993, Article 16, available at UN Division for Ocean Affairs and the Law of the Sea, Maritime Space: Martime Zones and Maritime Delimitation (database) [hereinafter doalos Maritime Space database], <www.un.org/Depts/los/LEGISLATIONANDTREATIES/claims.htm>.

120

For a detailed account of China’s legal arguments and practice, see Kardon, supra note 95, pp. 184–210.

121

See subsection 4.1 above.

122

See M. Hayashi, ‘Military Activities in the Exclusive Economic Zones of Foreign Coastal States’, 27:4 International Journal of Marine and Coastal Law (2012) p. 801.

123

Surveying and Mapping Law of the People’s Republic of China, 28 December 1992 (last ammended 27 April 2017), available at UN Food and Agriculture Organization, faolex database, <www.fao.org/faolex/results/details/en/c/LEX-FAOC173733/>.

124

Ibid., Article 8(1).

125

Ibid., Article 8(2).

126

Kraska, ‘Intelligence Collection’, supra note 34, pp. 613–614.

127

Statement by the United States of America, 8 March 1983, Third UN Conference on the Law of the Sea (1973–1982) [unclos iii], Doc. a/conf.62/ws/37 and Add.1–2, Official Records, Vol. xvii, pp. 240, 243–244.

128

See Bateman, ‘Hydrographic Surveying in the eez’, supra note 97, p.165; Tanaka, supra note 58, p. 442; Roach, supra note 57, pp. 490–495.

129

See R. Pedrozo, ‘Close Encounters at Sea: The usns Impeccable Incident’, 62:3 Naval War College Review (2009) pp. 101–111; Zou, supra note 110, pp. 172–174.

130

Objection by Sweden to the declaration made by Ecuador upon accession to the losc, 18 October 2013, available at untc Status of Traties database, supra note 77.

131

Ibid.

132

See Belgium’s objection to the declaration made by Ecuador upon accession to the losc, 22 October 2013, available at untc Status of Treaty database, supra note 77.

133

See statement by France, 12 May 1983, unclos iii, Doc. a/conf.62/ws/37 and Add.1–2, Official Records, Vol. xvii, pp. 240, 241.

134

See Germany’s statement upon accession to the losc, 14 October 1994, available at untc Status of Treaty database, supra note 77.

135

See Italy’s declaration upon signature (and confirmed upon ratification) of the losc, 7 December 1984, available at untc Status of Treaty database, supra note 77. See also Italy’s objections of 24 November 1995 and of 23 October 2013, ibid.

136

See objections by the Kingdom of the Netherlands upon ratification of the losc, 28 June 1996, available at untc Status of Treaty database, supra note 77.

137

See declaration by the United Kingdom upon accession to the losc, 25 July 1997, available at untc Status of Treaties database, supra note 77.

138

Federal Act on the Exclusive Economic Zone of the Russian Federation, 2 December 1998, Article 6(1), available at doalos Maritime Space database, supra note 119.

139

Federal Act on the Exclusive Economic Zone of the Russian Federation, supra note 138, Article 5(3).

140

Maritime Doctrine of the Russian Federation, supra note 22, para. 9(2).

141

Arctic Sunrise Arbitration (Kingdom of the Netherlands v. Russian Federation), 14 August 2015, Arbitral Tribunal, Award on the Merits, paras. 221–333.

142

Ibid., para. 314.

143

Ibid.

144

For a similar argument in principle, see S. Kaye, ‘International Measures to Protect Oil Platforms, Pipelines, and Submarine Cables from Attack’, 31:2 Tulane Maritime Law Journal (2007) p. 419 [hereinafter Kaye, ‘International Measures’] (“matters affecting the cable do not fall within the eez jurisdiction the coastal State possesses, unless the action fails to show due regard for the rights of the coastal State in its eez”).

145

See losc Articles 80 and 60. According to losc Article 60(2), the coastal State has exclusive jurisdiction over artificial islands, installations, and structures specified in the Article’s paragraph (1). As far as installations and structures are concerned, the scope of Article 60 is limited to those that serve the purposes provided for in Article 56 and other economic purposes, as well as to those that may interfere with the exercise of the rights of the coastal State in the eez.

146

losc Article 79(4) states that “[n]othing in this Part affects the right of the coastal State to establish conditions for cables or pipelines entering its territory or territorial sea … ”.

147

Wolf, supra note 48, pp. 104, 188, and 230.

148

W. Heintschel von Heinegg, ‘Protecting Critical Submarine Cyber Infrastructure: Legal Status and Protection of Submarine Communications Cables under International Law’, in K. Ziolkowski (ed.), Peacetime Regime for State Activities in Cyberspace: International Law, International Relations and Diplomacy, (ccdcoe, Tallinn, 2013) pp. 303 and 315. See also Y. Dinstein and A. W. Dahl, Oslo Manual on Select Topics of the Law of Armed Conflict: Rules and Commentary, Springer, Cham, 2020) p. 56.

149

Arctic Sunrise Arbitration, supra note 141, para. 326.

150

Ibid., para 327.

151

M. Roelandt, La Condition Juridique des Pipelines dans le Droit de la Mer (Presses Universitaires de France, Paris, 1990) p. 179; Wolf, supra note 48, p. 231.

152

losc Article 208(1) is concerned not only with activities directly carried out on the seabed under national jurisdiction but also with the indirect effects of conduct connected to such activities. See F. Wacht, ‘Article 208’, in Proelss (ed.), supra note 27, p. 1395 (mn 9).

153

losc Articles 208 and 214 are closely linked to Article 194(3)(c), which obliges States to take measures to minimise pollution from installations and devices used in the exploration or exploitation of the natural resources of the seabed and subsoil, in particular measures for preventing accidents, dealing with emergencies, and ensuring the safety of operations at sea. See Wolf, supra note 48, pp. 213–214.

154

See Wolf, supra note 48, pp. 229–231. Stuart Kaye argues that losc Article 79(4) creates a strong implication that a coastal State can enact laws dealing with leaks from pipelines, which would probably be sufficient to assert jurisdiction in cases of attacks, notwithstanding the fact that losc Part xii contains no enforcement provisions in respect to pipelines (Kaye, ‘International Measures’, supra note 144, p. 420).

155

Supra note 89.

156

Roelandt, supra note 151, p. 178; Wolf, supra note 48, p. 230.

157

This applies to installations and structures over which the coastal State has exclusive jurisdiction in accordance with losc Article 60(2). See supra note 145.

158

A. Proelss, ‘Article 60’, in Proelss (ed.), supra note 27, p. 476 (mn 24).

159

losc Article 60(5).

160

losc Article 60(6).

161

Proelss, ‘Article 60’, supra note 158, p. 476 (mn 24).

162

Among the first States to establish cable protection zones or corridors were Australia and New Zealand. See, e.g., S. Kaye, ‘The Protection of Platforms, Pipelines and Submarine Cables under Australian and New Zealand Law’, in N. Klein et al. (eds.), Maritime Security: International Law and Policy Perspectives from Australia and New Zealand (Routledge, Abingdon et al., 2010) pp. 186–201; H. E. Matley, ‘Closing the Gaps in the Regulation of Submarine Cables: Lessons from the Australian Experience’, 11:3 Australian Journal of Maritime & Ocean Affairs (2019) pp. 173–174.

163

See, e.g., R. Lagoni and A. Proelß, ‘Festlandsockel und ausschließliche Wirtschaftszone’, in Graf Vitzthum (ed.), supra note 27, pp. 212–213 (mn 166–168); Wolf, supra note 48, pp. 216–219; Davenport, supra note 47, p. 219; Heintschel von Heinegg, supra note 148, pp. 312–313.

164

See, e,g,, Kaye, ‘International Measures’, supra note 144, p. 422; L. R. Wrathall, ‘The Vulnerability of Subsea Infrastructure to Underwater Attack: Legal Shortcomings and the Way Forward’, 12:1 San Diego International Law Journal (2010) pp. 254–256.

165

S. Kaye, Submission: Proposed Protection Zones off Sydney, 26 October 2006, quoted in Heintschel von Heinegg, supra note 148, p. 312.

166

Arctic Sunrise Arbitration, supra note 141, para. 244.

167

‘Arctic Sunrise’ Case (Kingdom of the Netherlands v. Russian Federation), 22 November 2013, itlos, Order, Joint Separate Opinion of Judge Wolfrum and Judge Kelly, para. 12.

168

Ibid., Dissenting Opinion of Judge Golitsyn, para. 25.

169

Arctic Sunrise Arbitration, supra note 141, para. 278.

170

Ibid. The Tribunal noted that the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf (sua Fixed Platforms Protocol) “recognises this”.

171

Arctic Sunrise Arbitration, supra note 141, para. 278.

172

See ibid., para. 281.

173

Ibid., paras. 324 and 332.

174

Ibid., para. 284.

175

Germany’s statement upon accession to the losc, supra note 134.

176

Zou, supra note 110, p. 167.

177

See supra note 115.

178

The concept of a threat of force under Article 2(4) of the UN Charter is controversial. See, e.g., R. Sadurska, ‘Threats of Force’, 82:2 American Journal of International Law (1988) p. 239; N. Stürchler, The Threat of Force in International Law (Cambridge University Press, Cambridge, 2007).

179

Depending on their scale and effects, acts of sabotage against maritime infrastructure could even rise to the level of an armed attack within the meaning of Article 51 of the UN Charter. See D. Azaria and G. Ulfstein, ‘Are Sabotage of Submarine Pipelines an “Armed Attack” Triggering a Right to Self-defence?’, ejil:Talk!, 18 October 2022, <www.ejiltalk.org/are-sabotage-of-submarine-pipelines-an-armed-attack-triggering-a-right-to-self-defence/>; A. Lott, ‘Attacks against Europe’s Offshore Infrastructure within and beyond the Territorial Sea under Jus ad Bellum’, ejil:Talk!, 17 October 2023, <www.ejiltalk.org/attacks-against-europes-offshore-infrastructure-within-and-beyond-the-territorial-sea-under-jus-ad-bellum/>.

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