The term "peaceful uses" or "peaceful purposes" is used in the 1982 UNCLOS Convention in the Preamble, and Articles 88, 141, 143(1), 147(2)(d), 155(2), 240(a), 246(3), and 301. Among these, only the Preamble and Article 301 in its title use the term "peaceful uses", rather than "peaceful purposes". There appears to be no substantial difference in the purpose that these two terms intend to pursue²⁹. Apart from the preambular paragraph, which expresses the desirability of establishing a legal order of the seas and oceans that will promote their peaceful uses, these Articles may be divided into the following four groups:

(1) Article 88, providing that the high seas and (through Article 58(2)) the EEZ shall be reserved for peaceful purposes.

(2) Articles 141, 143(1), 147(2)(d) and 155(2) relating to the reservation of the Area beyond the limits of national jurisdiction for use exclusively for peaceful purposes. Articles 143(1) and 147(2)(d) specifically require that marine scientific research (MSR) and "installations" in the Area be exclusively for peaceful purposes.

(3) Article 240(a) laying down the principle that MSR shall be conducted exclusively for peaceful purposes, and Article 246(3) relating to the coastal State's consent to be granted for MSR projects in the EEZ or on the continental shelf that would be conducted by other States exclusively for peaceful purposes.

(4) Article 301, applicable generally to all aspects of the rights and duties of States Parties, requiring them to 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 UN Charter.

 The provisions belonging to the second group are not relevant to the activities within EEZs.

　

 No definition is given in the Convention regarding "peaceful uses/purposes". The term is found in several multilateral treaties concluded UNCLOS III. By the peaceful purposes clause, some of them mean complete demilitarization; others prohibit only certain types of military activities. Upon examination of such treaties, including the Antarctic Treaty, the Outer Space Treaty, the Moon Treaty and the Seabed Arms Control Treaty, Boczek concludes that no agreed understanding of the notion of peaceful purposes had emerged prior to UNCLOS III, and that the term "peaceful purposes" must be construed within the context and circumstances of each specific instrument in which it is employed³⁰.

　

 The origin of Article 88 can be traced to the proposal submitted by Ecuador, Panama and Peru at the 1973 session of the Sea-Bed Committee, which read:

 At the third session (1975) of UNCLOS III, basically the same text appeared in the Single Negotiating Text, with "international seas" having been replaced by "high seas". In the debate on the question of peaceful uses of ocean space, held at the fourth session in 1976, opinions were divided into three groups. Many States, including several developing countries, interpreted the clause as prohibiting all military activities, while other States considered it as prohibiting military activities for aggressive purposes but not other activities. A third group argued that the test of whether an activity was peaceful was whether it was consistent with the UN Charter and other obligations under international law. The United States, representing the third group, stressed that the conduct of military activities for peaceful purposes was in full accord with the Charter, and that any specific limitation on military activities would require the negotiations of a detailed arms control agreement³². The Revised Single Negotiating Text, issued at the end of the fourth session, contained the text which later became Article 88.

　

 With regard to Article 301, its original version was proposed by a group of ten developing countries in 1980 as an additional sentence to Article 88. Having not attracted much support, the proposal was subsequently reintroduced as a separate article applicable to all zones of ocean space. The text read:

 Subsequently the phrase "or in any other manner..." was replaced by "or in any other manner inconsistent with the principles of international law embodied in the Charter of the United Nations." The new language, adopted as the final text, is a broader expression covering all the principles of international law that are embodied in the Charter, and not merely the purpose of the UN. In particular the inherent right of self-defense confirmed in Article 51 is unimpaired. It has thus been pointed out that military activities which are consistent with the principles of international law embodied in the Charter are not prohibited by the Convention³⁴. This view is also supported by a German participant in the Conference, who concluded that all naval activities in preparation for self-defense are compatible with the Convention and must be considered "peaceful use³⁵".

　

 The controversy over the peaceful uses/purposes clause has been mainly regarding whether it entails prohibition or limitation of all military activities, or if not, then what kind of military activities are prohibited.

　

 It has often been pointed out that a clear intention of the United States and the USSR at UNCLOS III was to avoid specific discussion on the limitation of military activities³⁶. They considered that the peaceful purposes clauses were not intended to impose any restrictions on military activities at sea, but simply the application to the law of the sea of the UN Charter's ban on the threat or use of force³⁷. Bernard Oxman, who was personally involved in the negotiations, stressed that one of the primary motivations of the major maritime powers in negotiating a new Convention was to protect the broadest possible freedom to conduct military activities at sea, and therefore it was unlikely that they would have agreed to significant legal restraints on those activities³⁸.

　

 After the adoption of the Convention, the United States officially confirmed that it believes the Convention does not prohibit military activities consistent with international law. Most recently, President Clinton, in his message in transmitting the Convention to the Senate, stated that the Convention" preserves the right of the U.S. military to use the world's oceans to meet national security requirements", and the accompanying Commentary states:

 Commentators generally agree that, judging from various provisions of the Convention relating to, e.g., the freedom of military vessels to navigate (Article 87), the privileged status granted to military vessels (e.g., Articles 32, 95, 236), the prohibition of certain military activities within the territorial sea (but no mention of such prohibition outside the territorial sea) (Article 19(2)), and the optional exclusion from compulsory judicial settlement of disputes concerning military activities (Article 298), it is logical and realistic to interpret the peaceful uses/purposes clauses as prohibiting only those activities which are not consistent with the UN Charter⁴⁰.

　

 It may be concluded accordingly that the peaceful purposes/uses clauses in Articles 88 and 301 prohibit not all military activities on the high seas and EEZs, but only those that threaten or use force in a manner inconsistent with the UN Charter. This is almost self-evident from the text of Article 301. As for Article 88, if it has any other meaning as Oxman and some others suggest, it expresses aspirations of the negotiators and a policy goal for States in the conduct of future arms control negotiations in the appropriate fora and context⁴¹.

　

 The conclusion that the peaceful uses/purposes clauses prohibit only those activities which threaten or use force in a manner inconsistent with the UN Charter may also be drawn with respect to the peaceful purposes clause in the context of MSR.

　

 The question thus hinges on what constitutes a threat or use of force inconsistent with the Charter. It is generally understood that the Charter prohibition includes not only the direct use of force across borders, but also the use of indirect armed force⁴². In addition, the Friendly Relations Declaration of 1970, which is regarded as giving an authoritative interpretation of the Charter principles, adds acts of reprisal involving the use of force, and forcible action which deprives peoples of their right to self-determination and freedom and independence.

　

 Obviously, however, the Charter and subsequent legal developments in the United Nations system have not taken into account highly advanced technologies, in particular the latest electronic warfare (EW) capabilities which are becoming increasingly more intensive and intrusive. A crucial question is whether some of the EW-related activities conducted in or above the EEZ should be considered to be inconsistent with the Charter and thus the peaceful purposes clauses of the Convention. Particularly relevant in this context are active signals intelligence (SIGINT) activities conducted from aircraft and ships, some of which are deliberately provocative, intending to generate programmed responses. Other SIGINT activities intercept naval radar and emitters, enabling them to locate, identify and track (and thus plan electronic or missile attacks against) surface ships⁴³. Still others may interfere with communication and computer systems. These activities appear to involve far greater interference with the communication and defense systems of the targeted coastal State than any traditional intelligence gathering activities conducted from outside national territory. However, can such electronic activities be considered use of or threat of force?