Guest Post: Professor Pete Pedrozo on “Fishing for trouble?  EEZs, military exercises, due regard, and more”

A senior fellow at the American Enterprise Institute published an op-ed in Defense One (“How Irish Fishermen Took on the Russian Fleet and Won”) that enthusiastically reports how Irish fisherman threatened to use their boats to make “a coordinated effort to head off the Russian fleet” planning to conduct a naval exercise in Ireland’s exclusive economic zone (EEZ).

Because the Russians chose to move their exercise to outside the EEZ “as a gesture of goodwill,” the writer celebrates the fisherman’s action as a way to “humiliate Moscow” and thinks it creates a “template” as to how the private entities can deter “threatening behavior by Russia, China, and other countries.”  This is wrong and potentially very dangerous.

The problem?  In my view, that op-ed is riddled with misunderstandings and misstatements of international law that encourage behavior that could escalate into a lethal catastrophe.  Moreover, the “fishing boat” approach the op-ed champions could serve to validate the activities of the “fishing” fleets China has organized into a maritime militia, which conducts unlawful activities in Pacific.

The “coordinated effort” described by an Irish fishing industry official was intended to create a “continuous presence” of at least one fishing vessel in the EEZ.  The official adds: “If that [boat] is in proximity to where the [military] exercise is going, we are expecting that the Russian naval services abide by the anti-collision regulations.”  The op-ed then argues that “[b]y constantly having their boats in the exercise waters, the fishermen would—peacefully—prevent the Russians from conducting the exercise.”

I believe the approach hyped in the op-ed is not a lawful “template” to emulate, so I sought the views of one of the world’s foremost experts on maritime law: Captain Raul (Pete) Pedrozo, U.S. Navy (Retired), who is the Howard S. Levie Chair on the Law of Armed Conflict and professor of international law at the Stockton Center for International Law, U.S. Naval War College.

Pete graciously agreed to examine the op-ed and explain the applicable international law.  As you can see, the 1982 United Nations Convention on the Law of the Sea (UNCLOS) lays out reciprocal rights and duties with respect to activities in EEZs.  Decide for yourself if the op-ed presents a prudent template for conduct in EEZs, or whether it suggests behavior which is ‘fishing for trouble’.

Fishing for trouble? EEZs, military exercises, due regard, and more* 

by

CAPT Pete Pedrozo, USN (Ret.)

On 22 January 2022, Russia announced that it would conduct a gunnery and missile exercise from 3 to 9 February in the Irish exclusive economic zone (EEZ), 160 nautical miles off Mizen Head. Although the warning area is relatively small, Irish authorities raised concerns that the exercise could potentially disrupt civilian air traffic and maritime shipping transiting the area, as well as adversely impact Ireland’s fishing industry and damage the area’s unique marine flora and fauna.

Irish fishermen also indicated they intended to peacefully disrupt the naval exercise by maintaining a permanent presence in the area beginning 1 February. After initially refusing to move the exercise area, the Russian Defense Ministry decided, as a “gesture of goodwill,” to relocate the exercise outside of the Irish EEZ to avoid interference with Irish fishing activities their traditional fishing area.

From an Irish perspective, all’s well that ends well. Nevertheless, Russia’s decision to move the exercise area begs the question—did Russia have a right under international law to conduct a naval exercise in Ireland’s EEZ without Irish consent?

International law and military exercises in EEZs

The Irish government acknowledged that the exercise would be consistent with international law—“Under international law, including the UN Convention on the Law of the Sea [UNCLOS], states are entitled to carry out naval exercises in another state’s EEZ.” 

Accordingly, the Irish Aviation Authority instructed Irish air traffic control to issue a notice to airmen (NOTAM) temporarily closing the exercise area for flights from surface to 11,000 meters. Similarly, the transport department issued a notice to mariners (NOTMAR) advising fishing boats of the “serious safety risks” and to avoid entering the area.

All nations have a right to conduct military activities, including gunnery and missile exercises, outside foreign territorial seas. Articles 58, 86, and 89 of UNCLOS are clear on this point—beyond the territorial sea, all states enjoy high seas freedoms of navigation and overflight and other internationally lawful uses of the sea related to these freedoms.

Requirement of “due regard” 

Military activities, to include naval exercises, have always been considered an internationally lawful use of the seas (Official Record, at p. 244). Nevertheless, when exercising their rights in foreign EEZs, states shall have “due regard” to the sovereign resource rights of the coastal state (UNCLOS, Article 58.3).

Coastal states have a reciprocal duty under Article 56 of UNCLOS, which requires them to exercise their sovereign resource rights in the EEZ with “due regard” to the rights of other states. 

It appears Russia believed it had met its “due regard” obligation. On January 24, Russian Ambassador Yury Filatov stated that Ireland “had no grounds for concern” over the upcoming naval exercise. He further indicated that the Irish government had been duly notified, “that all the rules pertaining to the safety of air and maritime traffic were strictly followed,” and that such maneuvers “were held in the Atlantic on a regular basis” by the Russian and other navies.

A few days later Ambassador Filatov stated that the exercise in no way threatens Ireland, that “no harm is intended.” and that “no problem is expected.” More specifically, the Embassy indicated Russia understood the concerns of Irish fishermen over the “integrity of marine resources,” but that there were “neither grounds nor scientific data to believe that these exercises would influence the biodiversity of the ocean.”

The Irish view 

Ireland, however, appears to have a different view. During discussions with Russian authorities, Irish officials raised several ecological concerns that arguably reflect that Russia had not satisfied the “due regard” standard. Specifically, the naval exercise could potentially damage “marine flora and fauna.” The Russian warning area overlapped a traditional Irish fishing ground, which includes a “spawning ground for Irish pelagic fishing stocks.”

Sixty Irish trawlers were expected to start fishing in these waters, so the exercise could potentially disrupt these operations, putting at risk over 500,000 tons of blue whiting. The Chief Executive of the Irish South and West Fish Producers Organisation, Patrick Murphy, also expressed concerns that seismic shocks created by the gunnery and missile exercise “could change the migration pattern of tuna for years.” Mr. Murphy additionally was concerned that, if submarines were participating in the exercise, there was a real potential for fishing gear to get tangled with a submarine.

Finally, Irish officials believed that the use of active sonar during the exercise “could pose as danger to cetacean species,” including sperm, beaked, and blue whales. According to Irish junior minister Malcolm Noonan, “sonar can cause significant disruption to the mammals’ hearing and can “lead to permanent or even lethal injury.”

If accurate, Irish legitimate concerns should be considered by Russia before deciding to execute the exercise in the EEZ. However, it is questionable that a seven-day exercise would put at risk a half-billion tons of fish in the warning area. It is also questionable that seismic shocks could change the migration pattern of tuna as alleged. Finally, the potential harm to whales attributed to the use of active sonar is overstated.

Setting an adverse precedent

Nonetheless, Russia appears to have succumbed to the Irish position on “due regard.” Even though Russia said that the exercise was being moved as a “gesture of goodwill,” the Russian statement further indicated the relocation outside the EEZ was taken “with the aim not to hinder” Irish fishing activities in a traditional fishing area.

Russia’s magnanimous offer to move the exercise outside the EEZ sets an adverse precedent for maritime states that seek to conduct military maneuvers in foreign EEZs without coastal state consent.

Although clearly inconsistent with the text and negotiating history of UNCLOS, there is a growing trend amongst nations to place coastal state resource rights and environmental interests above user state interests in exercising high seas freedoms, to include military activities, in the EEZ.

If it is true that Russia determined that there were “neither grounds nor scientific data to believe that these exercises would influence the biodiversity of the ocean,” then the exercise should have proceeded as scheduled.  Caving-in to coastal state pressure is a disservice to the long-term interests of maritime states and emboldens coastal states to exert expanded, albeit illegal, rights and jurisdiction in their EEZ.

Two additional issues

This incident raises two additional issues. First, to what extent can Russia establish a warning area beyond the territorial sea to conduct a military exercise that prohibits entry of foreign ships and aircraft? Second, would it have been lawful for the Irish fishing fleet to intentionally interfere with the originally schedule Russian naval exercise.

No state may subject any part of the high seas, including the EEZ, to its sovereignty (UNCLOS, Article 56, 58, 86, 89). Seaward of the territorial sea, all ships and aircraft, including military ships and aircraft, enjoy high seas freedoms of navigation and overflight and other internationally lawful uses of the seas related to these freedoms, including military activities.

A state intending to conduct a military exercise beyond the territorial sea may establish a temporary warning area but only to advise ships and aircraft that it is engaging in activities that may pose a hazard to navigation and overflight.

A state may not, however, establish an exclusion zone on the high seas or EEZ. Ships and aircraft retain the right to transit through the exercise area recognizing that there is an increased risk in doing so. To the extent any Russian warning area in the EEZ or on the high seas purports to prohibit entry into the zone by foreign ships and aircraft, it is inconsistent with international law.

So, if Irish fishing vessels are free to enter the warning area, albeit at their peril, can they intentionally interfere with the Russian gunnery and missile exercise?

Regarding the purported “peaceful protest” by the Irish fishing fleet, Russia correctly pointed out that “any attempts to interfere with military exercises would be reckless and irresponsible act which could put in harm’s way both sailors and fishermen.”

If Russia has a right to conduct military activities in Ireland’s EEZ, then all ships and aircraft, including Irish fishing vessels, must exercise their high seas freedoms with “due regard” for Russia’s right to use the high seas for a lawful purpose (UNCLOS, Article 87.2).

Intentional interference with the exercise by Irish fishing boats would violate this “due regard” obligation. As the flag state, Ireland would have an obligation to ensure that fishing vessels that fly its flag do not engage in such conduct (UNCLOS, Articles 92, 94) .

About the author:

Captain Raul (Pete) Pedrozo, U.S. Navy (Retired), is the Howard S. Levie Chair on the Law of Armed Conflict and professor of international law at the Stockton Center for International Law, U.S. Naval War College. Prof. Pedrozo was the former senior legal adviser at U.S. Pacific Command and served as special assistant to the Under Secretary of Defense for Policy. The views expressed in this article are his personal views and do not necessarily reflect the views of the United States Government or the Department of Defense.

The views expressed by guest authors do not necessarily reflect the views of the Center on Law, Ethics and National Security, or Duke University.

Remember what we like to say on Lawfire^®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!