The Newport Papers 

Third in the Series 

The "New" Law of the Sea 

and 

The Law of Amled Conflict at Sea 

Horace B. Robertson, Jr. 

NAVAL WAR COllEGE NEWPORT, RHODE ISlAND 
l 

1 I 

j I 

The "New" Law of the Sea 

and 

The Law of Aned Conflict at Sea 

Horace B. Robertson, Jr. 
NAVAL WAR COLLEGE 

Newport, Rhode Island 

CENTER FOR NAVAL WARFARE STUDIES 

Newport Paper #3 

October 1992 

"The Newport Papers" series is a vehicle for distribution of especially 

substantial work of Naval War College academic and research faculty and 

students. Papers are drawn generally from manuscripts not scheduled for 

publication either as articles in the Naval War College Review or as books from 

the Naval War College Press but that merit extensive distribution. Candidates 

are considered by an editorial board under the auspices of the Dean of Naval 

Warfare Studies and are approved for publication by the President of the Naval 

War College. 

The views expressed in the Newport Papers are those of the authors and not 

necessarily those of the Naval War College or the Department of the Navy. 

Correspondence concerning the Newport Papers should be addressed to the 

Dean of Naval Warfare Studies. Requests for additional copies or for pennanent 

distribution should be directed to the Managing Editor, Naval War College 

Press, Code 32A, Naval War College, 686 Cushing Road, Newport, Rhode 

Island 02841-1207. Telephone 401-841-2236 or DSN 948-2236, and Fax 

401-841-3579. 
Contents 

Abstract vii 

I. Introduction 1 

II. A Brief History of the Origins and Development of "Zones" 3 

in the Oceans 

III. The Status of Maritime Zones in the Current Law of the Sea 10 

IV. The Law of Armed Conflict at Sea and the Traditional Areas 12 

of the Oceans 

V. The Impact of Changes in Jurisdictional Zones upon the Law 16 

of Neutrality 

A. The Territorial Sea 

B. International Straits 

C. The Contiguous Zone 

D. The Exclusive Economic Zone 

E. The Continental Shelf 

16 

18 

22 

23 

27 

1. Waters Superjacent to the Continental Shelf 28 

2. The Seabed of the Continental Shelf 28 

F. Archipelagic Waters 30 

1. Archipelagic Waters Outside of Archipelagic 31 

Sea-Lanes 

2. Archipelagic Sea-Lanes and Archipelagic 33 

Sea-Lane Passage 

3. Concluding Remarks Concerning Archipelagic 34 

Waters 

G. The Area 35 

VI. Mine Warfare 36 

VII. Conclusions and Recommendations 40 
Abstract 

The 1982 United Nations Convention on the Law of the Sea establishes a 

regime for the oceans that includes a number of "zones" in addition to the 

traditional divisions of internal waters, territorial sea, and high seas. Although 

explicitly applicable only in peacetime, these new zones have a spillover effect 

on the law of naval warfare, particularly in the relationships between belligerents and neutral States. 

The spillover effect is most pronounced in the expanded territorial sea of 

twelve nautical miles and in archipelagic States. Mechanical extension of rules 

that were applicable to a narrow (three-nautical mile) territorial sea to these 

broader areas of national jurisdiction is likely to create additional tensions 

between neutrals and belligerents, perhaps widening the areas of conflict and 

drawing neutrals into it. The study concludes that despite the dangers of such 

a result, the developing law, as reflected in the military manuals of several 

maritime States, seems to accept the old rules as applicable to the new and 

expanded national zones in the oceans. 
The "New" Law of the Sea 

and 

The Law of Aned Conflict at Sea.1 

Horace B. Robertson, Jr. 

I 

Introduction 

T

HE UNITED NATIONS CONVENTION on the Law of the Sea? adopted 

at the close of the Third United Nations Conference on the Law of the 

Sea (UNCLOS III) in 1982, created what many conferees and others regard as 

a new constitution for the oceans. Although it has not yet entered into force,3 

and no major maritime State has ratified it, it has nevertheless had a profound 

impact on the law of the sea. President Ronald Reagan, while announcing that 

the United States would neither sign nor become a party to the Convention 

because its provisions on the mining of the deep seabed were fatally flawed, at 

the same time stated that, "'the convention also contains provisions with respect 

to traditional uses of the oceans which generally confirm existing maritime law 

and practice and fairly balance the interests of all states ... 4 The American Law 

Institute, in its authoritative Third Restatement of the Foreign Relations Law 

of the United States, went further, stating: 

[B]y express or tacit agreement, accompanied by consistent practice, the 

United States, and states generally, have accepted the substantive provisions 

of the Convention, other than those addressing deep sea-bed mining, as 

customary law binding upon them apart from the Convention.� 

The features of the Convention that have had the most impact on the practice 

of States are the new or expanded jurisdictional zones6 recognized in the 

Convention. These include the twelve-nautical-mile territorial sea, the twentyfour-nautical-mile contiguous zone, the 200-nautical-mile exclusive economic 

zone (EEZ), the greatly expanded continental shelf, and archipelagic waters, all 

of which have in one way or another reduced the areas in which high seas 

freedoms may be exercised. A new regime for international straits-transit 

passage-is also an important development. 

Although, as will be developed below, the differentiation of an area of the ocean 

that is subject to the territorial sovereignty of the coastal state-the territorial 
The Newport Papers 

sea-had its origin in the practices of States in time of war-specifically in their 

assertions as neutrals that acts of hostilities should not take place close to their 

shores-the jurisdictional areas that are a part of the current law of the sea have 

been developed primarily for the protection of peacetime interests and are 

regarded as basically a peacetime regime. Nevertheless, by defining the areas 

that are subject to coastal State sovereignty or the exercise of other forms of 

jurisdiction, this regime may have significant effect on the exercise of both 

belligerent and neutral rights during time of armed conflict.7 As stated by 

Professor Bernard H. Oxman: 

To the extent one continues to divide public international law into the two 

classic categories-the laws of war and the laws of peace-the Convention 

on the Law of the Sea would doubtlessly fall within the latter category. This 

is so in the sense that the rules of anned conflict and neutrality are not 

addressed by the Convention. 

At the same time, the Convention does contain rules for dividing the oceans 

into different jurisdictional zones. Some of the rules of warfare and neutrality 

vary with the status of geographic areas. The integration of the new regimes 

of the law of the sea with the rules of naval and air warfare is accordingly a 

subject that merits attention. The classic dichotomy in the law of the sea 

between internal waters and the territorial sea on the one hand, and the high 

seas on the other, has yielded to new subtleties and modalities, particularly 

in the regimes of straits, archipelagic waters, the exclusive economic zone 

and the continental shelf.! 

As suggested by Professor Oxman, the most significant effect of the new 

jurisdictional zones will be upon the rules of neutrality, where the relationship 

between neutrals and belligerents and the applicability of rules depends on the 

particular jurisdictional area in which hostile activities take place. For that 

reason, this paper concentrates principally on the effect that the establishment 

or recognition of new jurisdictional zones may have on the law of neutrality. 

Although some publicists have questioned the continued viability of the 

concepts of belligerency and neutrality in light of the adoption of the United 

Nations Charter and the limitations it has placed on the use of armed force,9 as 

experience in the two recent Persian Gulf conflicts demonstrate, there is no 

other body of law that deals adequately with the relationships between states 

that are party to the conflict and those that choose not to take part in it. As 

Professor Christopher Greenwood has stated: 

[T]he law of neutrality still provides the only body of rules sufficiently precise 

and detailed to regulate such matters as rights to intercept shipping. The 

casualties amongst "neutral" shipping in the Gulf [Iraq-Iran] conflict illustrate the need for a detailed body of rules on this subject and the inadequacy 

of attempts to deal with such matters simply by reference to the broad 

principles of self-defence. 10 

2 
Accordingly, I shall use the terms "belligerent" and "neutral" to describe 

respectively those States that are involved in an anned conflict and those that 

are not taking part in the anned conflict. 

II 

A Brief History of the Origins and 

Development of "Zones" in the Oceansll 

The history of the law of the sea is a history of the tensions between coastal 

states seeking to exercise jurisdiction over or special interests in ocean waters 

lapping their shores and other states seeking to exercise freedoms of navigation, 

fishing, and other common interests in the oceans. 12 

Roman law recognized the doctrine of freedom of the seas, although it 

remains unclear whether the freedoms embraced in the doctrine applied to all 

or just to Roman citizens. 13 With the breakup of the Holy Roman Empire and 

the creation of numerous city-states and principalities in Europe, those bounding the seas laid claim to vast expanses of the oceans, asserting exclusive rights 

of navigation and fishing within them and exacting tribute from the ships of 

other states that wished to sail "their" waters. 14 The trend toward national claims 

over vast expanses of the oceans reached its apogee near the end of the fifteenth 

century when Pope Alexander VI, in 1493, divided the then-known oceans of 

the world between Spain and Portugal. 1

5 A year later, in the Treaty of Tordesillas, Spain and Portugal confinned this arrangement, each claiming for itself a 

monopoly of navigation and commerce within its respective sphere. 16 

Even England, that later bastion of the freedom of the seas, laid claims to the 

seas that washed the British Isles during the reigns of the Plantagenet and Stuart 

monarchs, although the intervening Tudor Elizabeth actively opposed "the 

exclusive maritime sovereignty arrogated by Venice, Portugal, or Spain:'17 

The shrinking of these expansive claims began with the great juridical 

debates about mare liberum and mare clausum that occurred in the early 

seventeenth century. The most influential voice in these debates was that of 

Grotius, who, in 1609, published Mare Liberum,1

8 in which he argued for the 

right of the Dutch to trade in the East Indies, where the Portuguese claimed a 

monopoly on the right of trade and navigation flowing from the Papal Bull and 

Treaty of Tordesillas. Grotius' arguments for the freedom of the seas and 

against the acquisition of property rights in the oceans were repeated and refmed 

in his more extensive work, The Law of War and Peace,19 published in 1625. 

Grotius' books went unchallenged by Portuguese and Spanish publicists, 

against whose claims they were specifically directed, but they struck a nerve in 

England, where Welwood and later Selden undertook the defense of the Stuart 

monarchs' pretensions to dominion over the "British seas" (the extent of which 

were never clearly defined), particularly with respect to the right to exclude 

3 
The Newport Papers 

Dutch fishennen and the practice of requiring the striking of the flag to British 

men-of-war in those seas.20 

England continued to as

ert its dominion over "British seas" during the Stuart 

monarchies (1603- 1714) as well as during the Interregnum period of the 

Commonwealth and Protectorate (1649- 1659). The Scandinavian States made 

similar claims to the waters of the Baltic and the western seas between the 

Scandinavian States and Iceland and Greenland. The main opponent of these 

extravagant claims was the United Provinces (the Dutch), whose international 

commerce and fishing fleets predominated during that period. Their resistance 

to British demands for the striking of topsails and flag in the presence of British 

men-of-war and their insistence on the right of their fishing fleet to fish in 

"British seas" precipitated three naval wars with England during the seventeenth century. At various times during these tumultuous times of shifting 

alliances the Dutch were joined by France and other continental powers. 

During these same times, however, the embryo of the concept of a territorial 

sea2l began to take shape. Grotius himself had addressed only the vast expanses 

of the oceans, and he recognized that some enclosed and narrow parts of the 

sea might be subjected to control from the adjacent land territory. Later, as 

stated by Fulton: 

During the seventeenth and eighteenth centuries another principle was 

gradually evolved, and was ultimately accepted as furnishing such a natural 

basis, so that it may now be regarded as an established part of international 

law. It was, that the maritime dominion of a state ended where its power of 

asserting continuous possession ended. The belt of sea along the coast which 

could be commanded and controlled by artillery on shore thus came to be 

regarded as the territorial sea belonging to the contiguous state. Beyond the 

range of guns on shore the sea was common.22 

The evolution of this principle owes its origins to the law of neutrality, where 

prize courts held that the prizes taken within the range of guns of a neutral fort 

were not "good prize" and were restored to their owners.23 It was reinforced by 

the practice of vessels rendering a salute when they came within the range of 

the artillery of a foreign fort.24 At the beginning of the eighteenth century, the 

Dutch jurist Cornelius van Bynkershoek "transferred in theory to all parts of a 

coast this decisive property of compulsion and dominion which, strictly speaking, only existed where forts or batteries were placed. ,,

25 Bynkershoek's principle became known as the "cannon-shot rule," and since the range of cannon 

in Bynkershoek's era was about three nautical miles or one marine league, it 

became the equivalent of a three-nautical-mile territorial sea. Although 

Bynkershoek's theory did not receive immediate universal acceptance, it did, 

over the next century, become "incorporated into international law as the rule 

for fixing the boundary of the territorial waters. ,,

26 The causes for this gradual 

4 
acceptance of a narrow band of territorial sea along the coast were, according 

to Fulton, twofold: 

One was the moral and material victory of the Dutch Republic in its long and 

persistent struggle against the exorbitant claims to maritime dominion, first 

of Spain and Portugal, and then of England and Denmark. The other was the 

great extension of commerce and navigation, in which England secured an 

ever-increasing share, so that in the [eighteenth] century we find her taking 

the part of Holland in opposition to the Danish claims to mare clausum. As 

maritime commerce extended and the security of the sea became established, 

.it was felt more and more that claims to a hampering sovereignty and 

jurisdiction were incompatible with the general welfare of nations; and as the 

states interested in this commerce had the greatest power, the assertion of a 

wide dominion was gradually abandoned, surviving only in remote regions 

or in enclosed seas like the Baltic.27 

For whatever reasons (and international-law scholars are not always in 

agreement as to what they are), by the end of the eighteenth century or early in 

the nineteenth century there was international acceptance of the idea that a 

nation's territorial sea was constituted by a uniform band along its coast, 

generally considered to be three nautical miles in width.2

8 By the end of the 

nineteenth century, of course, the range of cannon greatly exceeded three 

nautical miles, but despite the assertions of many publicists as to the illogic of 

preservation of a principle whose underlying theoretical basis was outdated,29 

the principle remained essentially intact until the end of World War II. As stated 

by Jessup, "it remained because the nations found it a convenient compromise 

between conflicting interests. ,,

30 

During this same period there developed also a legal regime of the territorial 

sea as well as a generally accepted rule as to its breadth. Despite varying theories 

that existed in the nineteenth century as to the nature of the territorial sea 

(sovereignty, jurisdiction, bundle of servitudes, etc.), by the early twentieth 

century, "scarcely any author took issue with the notion that the territorial sea 

is subject to sovereignty.,,

31 This theory of sovereignty was confirmed by 

national practice and codifications of the 1920s as well as the preparatory work 

for the Hague Codification Conference of 1930,32 the International Law 

Commission's Draft Convention on the Law of the Sea,33 and the 1958 Geneva 

Convention on the Territorial Sea and Contiguous Zone?4 This principle is 

carried forward into the 1982 United Nations Convention on the Law of the 

Sea, which provides, inter alia, in article 2, that, "The sovereignty of a coastal 

State extends, beyond its land territory and internal waters ... to an adjacent 

belt of sea, described as the territorial sea. ,,

35 

The sovereignty exercised by the coastal State over its territorial sea is the 

same as for its land areas and internal waters save for the right of ships of other 

nationalities to pass through the territorial sea in the exercise of the right of 

5 
The Newport Papers 

innocent passage in time of peace.36 Whether innocent passage includes the 

right of warships to pass without prior notification or consent in time of peace, 

and the extent of permissible regulation or suspension of innocent passage in 

time of war, will be examined below.37 

Concurrently with the development of the law of the territorial sea, a number 

of States also asserted certain rights more limited than full sovereignty in areas 

of the oceans beyond the narrow territorial sea. These took a number of forms 

and were extended to various distances from shore. Until all such acts were 

repealed in 1876, Great Britain had several laws (commonly referred to as 

"hovering acts") extending jurisdiction for enforcement of customs and excise 

laws to as much as four leagues (twelve nautical miles) from shore.38 As early 

as 1799 the United States had similar laws applicable to ships bound for United 

States ports, and in several cases the United States Supreme Court recognized 

the lawfulness of the enforcement of similar rights by other States beyond the 

limits of the territorial sea.39 Russia, France, Belgium, Italy, and Spain had 

similar laws extending to varying distances beyond three miles, as did the 

Scandinavian States.40 Several South American States adopted zones extending 

to twelve nautical miles for fiscal, revenue, and security purposes.41 Great 

Britain, having repealed the last of its "hovering acts" in 1876, strongly 

contested the right of other States to enforce such laws. It was joined by a 

number of other States in protesting the United States' pretensions to enforce 

its anti-liquor laws beyond the three-mile limit during the Prohibition Era.42 For 

these reasons, as well as the lack of uniformity both as to the content and outer 

limits for zones of special jurisdiction, it is difficult to conclude that the right 

to establish such zones had become a part of customary intemational law, at 

least until 1958 when the Convention on the Territorial Sea and Contiguous 

Zone recognized the contiguous zone for the purposes of preventing infringements of a coastal State's customs, fiscal, immigration, or sanitary regulations.43 

Although a number of States at various times claimed the exclusive right to 

exploit the fishery resources off their shores beyond the territorial sea or at least 

to regulate their exploitation,44 such a right was not recognized in customary 

international law,

4s even though as Fulton states, the three-mile limit "was 

selected, not on any grounds special to fisheries, but because it had been already 

recognised and put into force in connection with the rights of neutrals and 

belligerents in time of war. . .. [I]ts application to the right of fishing is 

accidental and arbitrary ... 46 

At the conclusion of the Second World War, then, the only area of the ocean 

as to which it might be said that a coastal State had an undisputed right under 

international law to exercise jurisdiction and control was the territorial sea. Any 

rights beyond that outer boundary were subject to dispute unless contained in 

a treaty. At that point in time, therefore, the oceans were divided into three 

6 
distinct areas-(1) internal waters, that is, waters inside the baseline, (2) the 

territorial sea of a breadth of three nautical miles over which the coastal State 

exercised full sovereignty except for the right of innocent passage by surface 

ships of other States, and (3) the high seas, which included all other waters of 

the oceans, in which aU States were entitled to the freedoms of the high seas, 

which included, inter alia, the freedoms of navigation, fishing, scientific 

research, and laying of undersea cables and pipelines, and in time of war, the 

right of belligerents to conduct hostilities in accordance with the law of anned 

conflict at sea. 

The event which triggered the demise of this tripartite division of the oceans 

and resulted ultimately in today's multiple and overlapping zones of coastalstate jurisdiction was President Harry Truman's Proclamation of the United 

States's claim to jurisdiction and control over the natural resources of the seabed 

and subsoil of the continental shelf of the United States.47 The outer boundary 

of the continental shelf was not defined in the Proclamation, but an accompanying White House Press release stated that generally the continental shelf 

extended to a point at which the depth of the water was 100 fathoms (600 feet).48 

Although the Proclamation carefully delimited the extent of the claim and 

explicitly affinned that "[t]he free and unimpeded navigation of the high seas 

above the continental shelf and rights under international law with respect to 

free swimming fish are in no way thus affected," this unilateral claim by the 

then-preeminent maritime power and one of the leading exponents of the 

freedom of the high seas opened the door for wider and more comprehensive 

unilateral claims by other states. The broadest of these were claims by several 

Central and South American States to extend their territorial seas to a breadth 

of 200 nautical miles. The relative unifonnity and tranquility which had existed 

for about 150 years with respect to the law of the sea began to erode. The era 

of "creeping jurisdiction" had begun. 

Concurrently, the International Law Commission (ILC) began its studies 

leading ultimately to the development of a draft convention on the law of the 

sea. In its successive drafts of articles on the law of the sea prior to the convening 

of the First United Nations Conference on the Law of the Sea in 1958, the ILC 

was unable, however, to agree on a breadth of the territorial sea. In the articles 

produced at its Eighth Session, which served as the negotiating text for the 1958 

Conference, the article on the breadth of the territorial sea provided as follows: 

Article 3 

1. The Commission recognizes that international practice is not unifonn 

as regards the delimitation of the territorial sea. 

2. The Commission considers that international law does not pennit an 

extension of the territorial sea beyond twelve miles. 

3. The Commission, without taking any decision as to the breadth of the 

7 
The Newport Papers 

territorial sea up to that limit, notes, on the one hand, that many States have 

fixed a breadth greater than three miles and, on the other hand, that many 

States do not recognize such a breadth when that of their own territorial sea 

is less. 

4. The Commission considers that the breadth of the territorial sea should 

be fixed by an international conference.49 

Although the first UN Conference on the Law of the Sea adopted four 

conventions on the law of the sea, one of which was the Convention on the 

Territorial Sea and Contiguous Zone,50 the conferees were unable to agree on 

an article establishing the breadth of the territorial sea, primarily because of the 

wide disagreement as to whether States could exercise exclusive control over 

fisheries in a zone beyond the limits of the territorial sea. Consequently, in its 

next session, the United Nations General Assembly voted almost unanimously 

to convene a Second Conference in 1960 exclusively "for the purpose of 

considering further questions of the breadth of the territorial sea and fishery 

Iimits.,,5l This Second Conference also failed to reach agreement on the breadth 

of the territorial sea, rejecting by a one-vote margin a compromise proposal 

sponsored jointly by the United States and Canada for a six-mile territorial sea 

with an additional six-mile exclusive fishery zone beyond that.52 

The 1958 Conference did, however, succeed in reaching agreement on the 

contiguous zone which prior to the Conference had been disputed. 53 Article 24 

of the Convention on the Territorial Sea and Contiguous zone provides, inter 

alia, as follows: 

1. In a zone of the high seas contiguous to its territorial sea, the coastal 

State may exercise the control necessary to: 

(a) Prevent infringement of its customs, fiscal, immigration or sanitary 

regulations within its territory or territorial sea; 

(b) Punish infringement of the above regulations committed within its 

territory or territorial sea. 

2. The contiguous zone may not extend beyond twelve miles from the 

baseline from which the breadth of the territorial sea is measured. 

The article adopted by the Conference was identical to that proposed by the 

ILC in its final draft except for the addition of the word "immigration" in 

paragraph l(a). The ILC's Commentary on its draft article includes the following comments: 

(1) International law accords States the right to exercise preventive or 

protective control for certain purposes over a belt of the high seas contiguous 

to their territorial sea. It is, of course, understood that this power of control 

does not change the legal status of the waters over which it is exercised. These 

waters are and remain a part of the high seas and are not subject to the 

sovereignty of the coastal State, which can exercise over them only such 

8 
rights as are conferred on it by the present draft or are derived from international treaties. S4 

Significantly, the Commission added the following comment: 

(4) The Commission did not recognize special security rights in the 

contiguous zone. It considered that the extreme vagueness of the term 

"security" would open the way for abuses and that the granting of such rights 

was not necessary. The enforcement of customs and sanitary regulations will 

be sufficient in most cases to safeguard the security of the State. In so far as 

measures of self-defence against an imminent and direct threat to the security 

of the State are concerned, the Commission refers to the general principles 

of international law and the Charter of the United Nations.ss 

The Convention also gave treaty recognition to the continental shelf doctrine, 

providing that coastal States exercise "sovereign rights" over the shelf for the 

purpose of "exploring it and exploiting its natural resources. ,,

56 The outer limit 

was defined as the point at which the water depth reached "200 meters or, 

beyond that limit, to where the depth of the superjacent waters admits of the 

exploitation of the natural resources of the said areas. ,,

57 

Finally, the 1958 Convention incorporated into its provisions the principles 

enunciated by the Anglo-Norwegian Fisheries case58 for the adoption of straight 

baselines for portions of the coast which are marked by deep indentations or a 

fringe of coastal islands. Although these provisions result in only modest 

expansions of the national waters of a coastal State when the criteria for their 

use are appropriately applied, the practice of States since 1958 demonstrates a 

constant increase in their application to coastlines that do not fit the criteria, as 

well as expansive abuses of the criteria in situations where they may arguably 

be applicable. 59 The result has been to incorporate large areas that were 

fonnerly high seas into the internal waters or territorial seas of coastal States. 

In some cases, the adoption of straight baselines results in the appropriation of 

much larger areas of the high seas than would an increase of the breadth of the 

territorial sea to twelve miles or more. 

Following the failure of the Second UN Conference on the Law of the Sea, 

the three-mile territorial sea began to lose adherents. Figure 1 summarizes the 

status of the claims of states to various breadths of the terri torial sea from 1945 

to the present. By 1965, the three-mile claim had become a minority position 

with twelve miles being almost as common; by 1974, shortly after the opening 

of the Third United Nations Conference on the Law of the Sea (UNCLOS III), 

twelve-mile adherents outnumbered three-mile adherents almost 2 to 1. The 

erosion of consensus as to what was the proper breadth of the territorial sea was 

one of the motivating factors for calling the Third United Nations Conference 

on the Law of the Sea. 

9 
The Newport Papers 

The Expansion of Territorial Sea Claims 

Claims National 1945 1958 1965 1974 1979 1983 1991 

3 NM 46 45 32 28 23 25 9 

4-11 NM 12 19 24 14 7 6 5 

12 NM 2 9 26 54 76 78 112 

OVER 12 NM .Jl ..

 .. ..

 ..

 ..

 -1.2 

Number of Coastal or 60 75 85 116 131 139 145 

Island Nations 

Figure 1 

Source: U.S. Department of the Navy 

III 

The Status of Maritime Zones in the 

Current Law of the Sea 

The Third United Nations Conference on the Law of the Sea (UNCLOS il) 

met from 1973 to 1982 and produced the United Nations Convention on the 

Law of the Sea. Although the Convention has not yet entered into force, its 

provisions concerning traditional uses of the oceans are widely considered as 

reflective of customary international law.60 The provisions of the Convention 

which are most likely to have an impact on the law of anned conflict at sea are 

the following: 

• States may establish the breadth of their territorial sea up to a limit not 

exceeding twelve nautical miles (article 3). 

• States may draw straight baselines using the same criteria adopted in the 

1958 Territorial Sea Convention (article 7). 

• States may establish a contiguous zone beyond their territorial sea over 

which they exercise a limited jurisdiction for the prevention of infringement of 

its customs, fiscal, immigration or sanitary laws and regulations with an outer 

limit no more than twenty-four nautical miles from the baseline (article 33); 

• States may establish an exclusive economic zone (EEZ) beyond and 

adjacent to the territorial sea out to a limit of 200 nautical miles from the 

baseline; in the EEZ they have "sovereign rights" for the purpose of exploring 

and exploiting, conserving and managing the living and non-living natural 

resources of the seabed and subsoil and superjacent waters; in the EEZ they also 

exercise jurisdiction as provided in other provisions of the Convention with 

regard to establishment and use of artificial islands, installations and structures, 

marine scientific research, and the protection and preservation of the marine 

environment (articles 55-57). Other States "enjoy" within the EEZ the freedoms 

10 
of navigation and overflight, 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" (article 

58). Both the coastal State and other States are required, in exercising their 

rights in the EEZ, to have "due regard" for the rights of the other States and 

coastal States respectively (articles 56 and 58). 

• The outer boundary of the continental shelf is extended to 200 nautical 

miles from the baseline for all States, and for States with continental margins 

wider than 200 miles, to the edge of the margin according to a formula provided 

in the Convention, but in no case more than 350 nautical miles from the baseline 

or 100 nautical miles from the 2,500 meter isobath (article 76). 

• Straits embraced by the territorial sea of one or more States but used for 

international navigation between one part of the high seas or an EEZ and another 

part of the high seas or an EEZ are governed by the right of "transit passage," 

which permits "the freedom of navigation and overflight solely for the purpose 

of continuous and expeditious passage of the strait." Such passage may not be 

suspended (article 44), and passage may be made in the ship or aircraft's 

"normal mode" of operation (articles 37 and 38). Straits that have a ribbon of 

high seas or EEZ through them or are formed by an island and its mainland are 

not governed by the transit-passage regime if the high seas or EEZ route or the 

route seaward of the island is "of similar convenience with respect to navigational and hydrographical characteristics" (articles 36 and 37). The regime for 

these latter categories of straits, and for straits leading to the territorial sea of a 

foreign State, is innocent passage (non-suspendable in the cases of island-mainland straits and straits leading to the territorial sea of a foreign State)(article 

45). In addition, the regimes for straits "regulated in whole or in part by 

long-standing international conventions in force specifically relating to such 

straits" are unaffected by the straits provisions of the Convention (article 35(c)). 

• States which are comprised solely of islands or parts of islands, which 

form an intrinsic geographical, economic and political entity, and which meet 

certain criteria as to land-to-water ratio and distance of separation may draw 

straight archipelagic baselines joining the outermost points of the outermost 

islands and drying reefs of the archipelago (Articles 46 and 47). The waters 

inside the baselines become "archipelagic waters" (article 49), and the territorial 

sea, contiguous zone, exclusive economic zone and continental shelf are 

measured outward from these archipelagic baselines (article 48). The archipelagic State exercises sovereignty over archipelagic waters, their seabed 

and subsoil, and the airspace above, regardless of their depth or distance from 

the coast (article 49). All States have the right of "archipelagic sea lanes 

passage" (which is equivalent to "transit passage" through straits) through 

archipelagic sea-lanes designated by the archipelagic State or in the absence of 

11 
The Newport Papers 

such designation through the routes nonnally used for international navigation. 

For other areas of archipelagic waters, the ships of all States have the right of 

innocent passage. 

• The unrestricted freedoms of the high seas are exercised only from the 

outer limit of the exclusive economic zone rather than from the outer limit of 

the territorial sea (article 86). The area for the exercise of full high seas freedoms 

has thus been reduced by the subtraction of those areas that comprise the EEZ. 

If all coastal and island States claim an EEZ of 200 miles, this will reduce the 

area of the high seas by approximately one-third. As outlined above, however, 

the freedoms of navigation and overflight and the freedoms to lay cables and 

pipelines are preserved in the EEZ subject to the right of those exercising them 

to have "due regard" for the legitimate activities of the coastal state in its EEZ. 

• The Convention creates an international seabed " Area," which is defined 

as "the sea-bed and ocean floor and subsoil thereof, beyond the limits of national 

jurisdiction" (article 1). In effect, the "Area" comprises all of the seabed beyond 

the outer edge of the juridical continental shelf. Unlike the other zones discussed 

above, the " Area" is not subject to national jurisdiction or control but is regarded 

by the LOS Convention as the "common heritage of mankind" (article 135). 

Part XI of the Convention provides a regime and institutions for the purpose of 

exploration and exploitation of its mineral resources. Although Part XI has not 

been received into customary law as have the other Parts of the Convention, the 

"Area" will be briefly discussed in subsection V.G. below. 

The effect of the adoption of the 1982 Convention and absorption into 

customary intemational law of many of its provisions is to replace the three-fold 

division of the ocean (internal waters, a narrow territorial sea, and the high seas) 

with a multiplicity of broad and overlapping coastal areas under varying measures 

of jurisdiction and control by the contiguous states and a much reduced area of 

high seas. These divisions of the ocean are depicted in Figure 2. 

IV 

The Law of Armed Conflict at Sea and the 

Traditional Areas of the Oceans 

In order to understand how the emergence of new maritime areas may affect 

the law of anned conflict at sea, which has traditionally been conducted in 

oceans which juridically consisted of only three divisions-internal waters, 

territorial waters (territorial sea), and high seas-it is necessary to understand 

how this trifold division of the oceans affected the conduct of operations before 

the manifold and overlapping divisions of the present era were created. 

The essential overarching principles could be stated as follows: 

• First, the areas within which belligerents could conduct hostile operations 

were the high seas (which, it is to be remembered, consisted of all parts of the 

12 
--

Legal Regimes of Oceans and Airspace Areas 

Outer Space 

National 

Airspace 

__ f __ -- 1--

* 

International 

Airspace 

�-..

 �-----�- 24nm 

12nm __ 

.. 

Territorial Contiguous 

Sea 

�-

Zone 

Exclusive Economic � 1 

�-

Zone 

200nm �I 

Continental Shelf 

(all coastal states) I � 

I.. Continental Shelf 

I (states with wide margins) -+-..

 

Fisrure 2 

--

The 

deep 

seabed 

-
The Newport Papers 

oceans beyond the territorial sea), the territorial sea and internal waters of 

belligerents, and the airspaces above these areas. 

• Second, the obverse of the first principle-as a general rule, hostile 

operations could not be conducted in the internal waters or territorial sea of a 

neutral State, nor in the airspace above these divisions of the oceans.61 

• Third, the neutral State is required to apply its neutrality regulations 

impartially to all belligerents engaged in the conflict.62 

During the seventeenth and eighteenth centuries these general principles 

were fleshed out by the practice of States into a set of generally agreed upon 

and rather formal rules of conduct. Most of them were codified in the Second 

Hague Peace Conference as the 1907 Convention (XII) Concerning the Rights 

and Duties of Neutral Powers in Naval War.63 Although Hague XIII has not 

received universal ratification, and a number of important States, including the 

United Kingdom, have never ratified it, most of its provisions are considered 

to be declaratory of customary law.64 In any event, it comprises the latest 

expression in treaty form of the respective rights and duties of neutrals and 

belligerents with respect to hostile activities within neutral "maritime territory" 

(that is, internal waters and the territorial sea) and may be used as a starting 

point for discussion of these issues. 

The provisions of Hague XIII concerning the respective rights and obligations of belligerents and neutrals in neutral maritime territory that are most 

likely to be affected by the replacement of the singular coastal zone of the 

territorial sea with the multiplicity of coastal zones resulting from the 1982 

United Nations Convention are outlined below. Since ports are normally within 

internal waters, which are unaffected by the creation of additional zones beyond 

the territorial sea, I have not included the provisions of Hague XIII dealing 

solely with ports. On the other hand, roadsteads may be within either internal 

waters or the territorial sea and thus may be affected by the extension of the 

breadth of the territorial sea to twelve miles or the drawing of straight baselines. 

Accordingly, those provisions of Hague XIII dealing with "roadsteads" are 

included. The significant provisions of the Convention are as follows: 

Belligerents are required to respect the sovereign rights of neutral States and 

to abstain from acts that would constitute a violation of neutrality (article 1); 

Any act of hostility, including visit, search and capture by a warship in the 

territorial sea of a neutral power is a violation of neutrality (article 2); 

A neutral State must employ the "means at its disposal" to release a prize 

captured within its territorial sea (article 3); 

A prize court cannot be set up by a belligerent on neutral territory or on a 

vessel in neutral waters (article 4); 

Belligerents cannot use neutral ports or waters as a base of operations nor 

erect any apparatus to communicate with belligerent forces at sea (article 5); 

14 
A neutral Government must employ the "means at its disposal" to prevent 

the fitting out or arming of vessels within its jurisdiction which it believes are 

intended for cruising or engaging in hostile operations and to prevent departure 

from its jurisdiction of such vessels (article 8); 

A neutral State must apply its rules and restrictions impartially to the 

belligerents and may forbid the entry of vessels which have violated its rules 

or its neutrality (article 9); 

The "mere passage" of belligerent warships or prizes through a neutral's 

territorial sea does not affect the neutral's neutrality (article 10); 

A neutral power may allow belligerent warships to employ its pilots (in its 

territorial waters65)(article 11); 

Unless the neutral's regulations provide otherwise, belligerent warships may 

remain in neutral ports, roadsteads or territorial waters no more than 24 hours 

(article 12);66 

A neutral Power must notify a belligerent warship within its ports, roadsteads 

or territorial waters at the outbreak of hostilities to depart within 24 hours or 

such other period as required by the neutral's regulations (article 13); 

A belligerent warship may not prolong its stay in a neutral port except on 

account of damage or stress of weather and must depart as soon as the cause of 

delay is at an end (article 14); 

In neutral ports and roadsteads belligerent warships may carry out only 

repairs that are necessary to make them seaworthy. The local authorities may 

decide what repairs are necessary (article 17);67 

Belligerent warships may not use neutral ports, roadsteads, or territorial 

waters for replenishing their supplies of war material or armament or for 

completing their crews (article 18); 

In neutral ports or roadsteads belligerent vessels may revictual only to the 

peacetime standard and receive fuel only in sufficient quantity to reach the 

nearest port of their own country or fill their bunkers, if the latter is the formula 

adopted in the neutral's regulations (article 19). They may not make a repeat 

visit for refueling at the port of a neutral in any of whose ports they have refueled 

for the previous three months (article 20); 

A neutral State must exercise such surveillance "as the means at its disposal 

allow" to prevent violation of its territorial waters (article 25); and 

The exercise of its rights under the Convention by a neutral cannot be 

considered an unfriendly act by a belligerent (article 26). 

To reemphasize a point already made, when the Convention uses the term 

"neutral waters" or waters "within its jurisdiction," or similar terms, it is 

referring either to the internal waters or the territorial waters (territorial sea) of 

the neutral State, since those were the only areas of the oceans recognized at 

that time as being within the jurisdiction or sovereignty of the coastal State. 

15 
The Newport Papers 

V 

The Impact of Changes in Jurisdictional Zones 

upon the Law of Neutrality 

A. The Territorial Sea. As developed above, the concept of the territorial sea 

originated with the claims of neutral States to prevent belligerent hostile 

activities from occurring close to their shores, and the breadth of the territorial 

sea was originally tied to the actual area that a coastal State could control from 

its shore, i. e., the range of shore-based artillery or three nautical miles. Although 

the range of cannon soon exceeded this short distance, the rights and duties of 

neutral and belligerent States in the offshore areas bounding neutral coastal 

States remained tied to the three-mile breadth of the territorial sea. The series 

of compromises which resulted in the rules which eventual1y became embedded 

in the law of neutrality were thus based on the assumption that they would apply 

only in a very narrow coastal margin, measured from baselines which corresponded to the low-water line along the coast. 

The territorial sea now has a breadth of up to twelve miles, and while the 

nonnal baseline is still the low-water line along the coast, many coastal States 

claim the right to draw straight baselines in a manner that extends the outer 

boundary of the territorial sea many miles more than twelve miles from the 

actual coast. (Although the waters inside these exaggerated baselines become 

internal waters, the right of innocent passage is preserved through them where 

they enclose areas which had previously not been considered as internal.)68 The 

combined effect of increasing the breadth of the territorial sea and allowing the 

use of straight baselines is thus to more than quadruple the area of the waters 

subject to coastal state sovereignty. This in turn raises the question of the 

continued applicability of all the rules summarized above to this broader band 

along a neutral's coast. 

Dr. Elmar Rauch, in his study of the issue, has no difficulty in concluding, 

without discussion, that the same rules apply in this expanded territorial sea that 

fonnerly applied in the narrow territorial sea. He states: 

As a matter of principle belligerents are bound to respect the sovereignty 

of neutral powers and to abstain, in neutral territory or neutral waters [by 

which he means the territorial sea and internal waters] from any act of 

warfare. Any act of hostility, including capture and the exercise of the right 

of search, committed by belligerent warships in the territorial waters of a 

neutral power, constitutes a violation of neutrality and is strictly forbidden.69 

Dr. Rauch may well be correct that such a conclusion can be drawn without 

further analysis. His conclusion is bolstered by the recently published United 

States Navy operational law manual, which explicitly accepts the idea that 

16 
extension of the territorial sea to twelve nautical miles does not affect the 

application of the laws of neutrality, stating: 

[l1he 12-nautical mile territorial sea is not, in and of itself, incompatible with 

the law of neutrality. Belligerents continue to be obliged to refrain from acts 

of hostility in neutral waters and remain forbidden to use the territorial sea of 

a neutral nation as a place of sanctuary from their enemies or as a base of 

• 70 operations. 

The Canadian71 and Gennan72 draft manuals, both of which were prepared 

subsequent to the adoption of the twelve-mile territorial sea, state without 

comment that any hostile acts within neutral territorial seas are prohibited. 

It, of course, goes without citation that internal waters and the territorial sea 

are subject to the sovereignty of the coastal State, save only for the right of 

innocent passage in the territorial sea, and that the cardinal principle of the law 

of neutrality is that belligerents may not conduct hostilities in neutral territory, 

land or sea. Nevertheless, one may question whether rules which were 

developed to apply to a narrow band of water along a neutral's coast should be 

applied automatically to a band that may be more than four times as wide. As 

outlined above, neutral States have an obligation to use the means at their 

disposal to conduct surveillance of their waters to ensure that belligerents do 

not violate their neutrality and to take preventive or corrective action if they 

detect such violations.73 A broader territorial sea presents a greater burden of 

surveillance and enforcement for the neutral State as well as a greater temptation 

for belligerent naval forces, especially submarines, to use neutral waters as 

"safe corridors" for passage to or from legitimate areas of hostilities, for transit 

to or from home ports, or as safe havens for rendezvous with replenishment 

ships. If neutral States are unable or unwilling to carry out their obligations to 

prevent such activities, the opposing belligerent may legitimately take hostile 

action against the enemy forces that are unlawfully using the neutral's territorial 

sea.74 Such actions would tend to embroil the neutral in the anned conflict rather 

than isolate it from such actions, which, of course, is the purpose of the law of 

neutrality. The passage of the A Itmark through the Norwegian territorial sea in 

World War 11,15 as well as Great Britain's claim that Gennan submarines were 

using the same sea as a thousand-mile-Iong "covered way" for passage of their 

submarines from home ports to operational areas in the open seas 76 are 

examples of how even a narrow territorial sea may tempt belligerents to test the 

limits of tolerance of both neutrals and opposing belligerents to the use of 

neutral territorial seas for safe havens from attack. Increasing the breadth of the 

territorial sea more than four-fold would undoubtedly vastly increase such 

temptations. 

In time of peace, the ships of all States, including warships,77 have the right 

of innocent passage through the territorial seas of all States. In time of war, 

17 
The Newport Papers 

neutrals may, if they choose, allow "mere pasage" of belligerent warships 

through their territorial seas without jeopardizing their neutral status.78 On the 

other hand, neutrals may, if they choose, close their territorial seas except for 

those parts leading to an international strait to pasge by belligerent warships?9 

The temptations for belligerents to ignore a neutral State's closure of its 

territorial sea to passage, and the greater burdens of surveillance and enforcement on neutrals will undoubtedly result in increased tensions in a broader 

territorial sea. 

Professor Michael Reisman and William K. Lietzau have recently written 

that, "In addition to their important function in dissemination and transmission 

of international legal information, [military operational] manuals are an important mode for making international law as well as evidencing its existence.,,

8o 

In other words, the military manuals promulgated by States represent the 

practice of such States. The fact that the manuals of three major maritime States 

(United States, Canada, and Germany) have accepted the rules that were 

applicable to a three-mile territorial sea as equally applicable to a twelve-mile 

territorial sea strongly suggests that these principles are being incorporated into 

customary international law despite rather strong arguments that could be made 

that the factual and theoretical underpinnings for these rules have been undermined by a quadrupling of the breadth of the territorial sea. 

B. International Straits. Although, as developed above, a neutral coastal State 

was permitted to close its territorial sea to all belligerent hostile activity, 

including "mere pasage by belligerent warships" under the pre-1982 regime 

of the territorial sea, it was also generally accepted that this right did not apply 

to those parts of the territorial sea that comprised an international strait. 81 This 

view was reinforced by the Corfu Channel case,82 which affirmed the right of 

British men-of-war to transit the strait between the Greek island of Corfu and 

the Albanian mainland which was a secondary passage between the Ionian and 

Adriatic Seas. In that case, the ICI stated: 

It is, in the opinion of the Court, generally recognized and in accordance with 

international custom that States in time of peace have a right to send their 

warships through straits used for international navigation between two parts 

of the high seas without previous authorization of a coastal State, provided 

the passage is innocent. 83 

This principle was codified in the 1958 Territorial Sea Convention as 

follows: 

There shall be no suspension of the innocent passage of foreign ships through 

straits which are used for international navigation between one part of the 

18 
high seas and another part of the high seas or the territorial sea of a foreign 

State. 84 

As the number of adherents to territorial seas of twelve or more miles 

expanded in the 1960s, a number of maritime States became concerned that the 

regime of nonsuspendable innocent pasage would provide insufficient protection for undisputed transit rights through international straits. Not only did this 

increased breadth of the territorial sea bring the waters of dozens of important 

straits within the territorial seas of bordering States, some of these States gave 

a more restrictive meaning to the "innocent" half of the innocent passage 

definition than had been visualized by either the International Court of Justice 

in the Corfu Channel case or the negotiators of the 1958 Territorial Sea 

Convention. Some States based their determinations of innocence on such 

factors as ownership of vessels, cargo carried, or destination of voyage.

85 As a 

result, a number of States, following the initiative of the United States and the 

Soviet Union, began to discuss the possibility of a third U.N. conference on the 

law of the sea for the purpose of establishing general agreement on a twelvemile territorial sea coupled with freedom of navigation for ships and aircraft 

through international straits. This movement coincided in time with Ambassador Pardo's initiative in the U.N. General Assembly for internationalization 

of the seabed beyond the limits of national jurisdiction. The confluence of these 

two movements eventually resulted in the convening of the Third United 

Nations Conference on the Law of the Sea (UNCLOS III), one of whose 

outcomes was the adoption of the doctrine of "transit passage" for ships and 

aircraft through straits used for international navigation between the high seas 

or an EEZ and another part of the high seas or EEZ. 

The provisions of the LOS Convention concerning transit passage are 

contained in Part II of the Convention, "Straits Used for International Navigation." As previously stated, transit passage applies to all straits used for 

international navigation between the high seas or an EEZ and another part of 

the high seas or EEZ,86 with three exceptions, as follows: 

1. Straits in which passage is regulated in whole or in part by long-standing 

international conventions in force specifically relating to such straits;87 

2. Straits through which there exists a high seas or EEZ route "of similar 

convenience with respect to navigational and hydrographical characteristics;88 

and 

3. Straits formed by an island and mainland of the same State if there exists 

a high seas or EEZ route "of similar convenience with respect to the navigational 

and hydrographical characteristics" seaward of the island.89 

For the first category, the governing regime is that which is provided in the 

"long-standing international convention" regulating passage through it. For the 

second, it is ordinary (i.e., suspendable) innocent passage as codified in the 

19 
The Newport Papers 

territorial-sea Part of the Convention.90 For the third, the regime is nonsuspedable innocent passage.91 

By the terms of Part III of the LOS Convention, transit passage is more akin 

to the freedom of navigation exercised by ships and aircraft on the high seas 

than it is to innocent passage as codified in Part II of the Convention. Transit 

passage is defined as the exercise of the "freedom of navigation and overflight,,92 by ships and aircraft in their "normal modes of continuous and 

expeditious transit. ,,93 During transit passage ships and aircraft must proceed 

through the strait without delay, refrain from the threat or use of force against 

bordering States and other acts contrary to the U.N. Charter, and comply with 

other relevant provisions of Part III. In addition, ships must comply with 

generally accepted rules for safety at sea and for the prevention, reduction, and 

control of pollution from ships, and aircraft must observe the leAO rules for air 

navigation94 and monitor the appropriate radio frequencies. Although ships and 

aircraft in transit passage must comply with the laws and regulations of the 

States bordering straits, the content of such rules is confined to the safety of 

navigation, the prevention of fishing by fishing vessels, the prevention of 

customs, fiscal, immigration or sanitary offenses, and regulations which give 

effect to applicable international regulations for the control of pollution by oil 

and other noxious substances.95 States bordering straits may not impede transit 

passage nor adopt laws or regulations "that discriminate in form or in fact 

among foreign ships or in their application have the practical effect of denying, 

hampering or impairing the right of transit passage .... ,,96 Even if the transiting 

ship or aircraft violates the laws or regulations of the States bordering a strait, 

these States may not deny or terminate the transit-passage rights of the ship or 

aircraft but must find their remedy in a civil suit if the offender is a merchant 

ship or civil aircraft or under the principles of State responsibility if it is a ship 

or aircraft entitled to sovereign immunity.97 

If under the pre-existing regime for straits it was generally accepted that 

neutral States could not deny passage to belligerent ships, including warships, 

in time of war, then ajortiori it should follow that this rule should be preserved 

under the more liberal transit-passage regime. But this new regime has two 

elements not included in the older one of nonsuspendable innocent passage: ( 1) 

it applies to aircraft; and (2) ships and aircraft may transit in their "normal 

mode." The second of these has been interpreted as including the submarines' 

right to submerged transit.98 Does it necessarily follow that submerged passage 

by submarines and overflight by belligerent aircraft should be allowed under 

the doctrine of transit passage in time of war? Adopting a teleological approach, 

Dr. Rauch answers yes. He states: 

One of the advantages of the new transit passage concept is that it keeps the 

littoral States bordering straits with great strategic value out of the vicious 

20 
circle of escalation in times of tension and crisis. If transit through such straits 

were subject to the discretion of the coastal States, they would unavoidably 

become involved, even if the discretionary power were to be exercised 

evenhandedly .... The ramifications of a refusal or of a permission of transit 

in whole or in part ... could, albeit legally non-discriminatory, in fact be of 

quite different military and strategic value to the parties to the conflict. ... 

The escalation-preventing quality of transit passage in times of tension and 

crisis-i. e. , in time of fragile peace-are even more important for neutral 

States in times of armed conflict.99 

The United States naval manual asserts that the transit passage provisions of 

the LOS Convention are a part of customary international law and interprets 

them as providing very broad rights for passage of belligerent forces in time of 

war for straits bounded by neutral States, stating: 

Customary international law as reflected in the 1982 Law of the Sea Convention provides that belligerent and neutral surface ships, submarines and 

aircraft have a right of transit passage through, over, and under all straits used 

for international navigation. Neutral nations cannot suspend, hamper, or 

otherwise impede this right of transit passage through international straits. 

Belligerent forces transiting through international straits overlapped by 

neutral waters must proceed without delay, must refrain from the threat or 

use of force against the neutral nation, and must otherwise refrain from acts 

of hostility and other activities not incident to their transit. Belligerent forces 

in transit may, however, take defensive measure consistent with their 

security, including the launching and recovery of aircraft, screen formation 

steaming, and acoustic and electronic surveillance. Belligerent forces may 

not use neutral straits as a place of sanctuary nor a base of operations, and 

belligerent warships may not exercise the belligerent right of visit and search 

in those waters. 100 

The Canadian draft manual has a similar, though less extensive provision, 

as follows: 

Warships and military aircraft of a belligerent state may exercise the right of 

transit passage, that is, of essentially unimpeded passage or overflight in an 

appropriate state of readiness with appropriate sensors activated, through 

certain straits where the transit passage [regime?] applies .... 101 

The German draft manual does not address the issue of passage through 

neutral straits separately from the question of pasage through the territorial sea 

generally. It is to be recalled that the German manual appears to be ambiguous 

as to whether the right of innocent pasage for belligerent warships through the 

territorial sea of a neutral State may be suspended. 

102 

Based on the foregoing, both logic and state practice lead to the conclusion 

that the peacetime regime of transit passage, as formulated in Part III of the 

21 
The Newport Papers 

LOS Convention, is equally applicable in time of anned conflict to the passage 

of belligerent warships (including submerged submarines) and aircraft through 

straits bounded by neutral States. 

One further aspect of the straits question deserves at least brief mention 

before leaving this subject; that is, the issue of straits governed by treaty 

regimes. As will be recalled, Article 35 of the LOS Convention excepted from 

the transit-passage regime, "straits in which pasage is regulated in whole or 

in part by long-standing international conventions in force specifically relating 

to such straits. ,,

10

3 During the course of the negotiations in UNCLOS m, various 

delegates suggested that this exception would apply to the Straits of the 

Dardanelles and Bosporus (Turkey),I04 the Strait of Magellan (Argentina and 

Chile,)IOS the Belts and Sound (Sweden-Denmark,)I06 and the Aaland Strait 

(Sweden-Finland). 

10

7 

A detailed examination of each of these Conventions is beyond the scope of 

this paper. Dr. Rauch, however, raises the question in his monograph as to 

whether all of these straits are actually "regulated" by the Conventions referred 

to in the footnotes so as to qualify for exemption from the transit-passage 

regime. Although acknowledging that at least two leading international 

authorities in the field disagree with him as to the Danish Straits and the Strait 

of Magellan, he concludes, based on the analysis therein as well as his prior 

works to which he refers, that except for the Turkish Straits, "would-be 

claimants to Art. 35(c) status simply fail to make a credible case.,,10

8 The United 

States' manual, though not explicitly excluding other treaty-regime straits, 

mentions only the Turkish Straits as being entitled to this exception to the 

. f' 109 regime 0 transit passage. 

In the case of the Turkish Straits, in time of war, Turkey being a neutral, the 

Montreux Convention provides for freedom of transit for neutral warships but 

prohibits passage of belligerent warships except under certain exceptional 

circumstances delineated in the Convention. If Turkey is at war, Turkey has 

complete discretion as to the transit of warships. 1

10 

C. The Contiguous Zone. As discussed above, lll the contiguous zone is an 

area of limited jurisdiction. The competence of the coastal State in this zone is 

limited to the exercise of the control necessary to prevent infringement of the 

coastal State's customs, fiscal, immigration, and sanitary regulations within its 

territory or territorial sea. J l2 The International Law Commission explicitly 

refused to recognize special security rights for the contiguous zone, and the 

1958 and 1982 Conventions adopted the ILC's fonnula.1

13 The contiguous zone 

is, for all intents and purposes, the equivalent of the high seas insofar as the 

conduct of hostile operations by belligerents and the exercise of belligerent or 

neutral rights and obligations are concerned. Thus, the extension of the outer 

limit of the contiguous zone from its fonner distance of twelve miles from the 

22 
baseline to twenty-four nautical miles as provided by article 33 of the 1982 LOS 

Convention should not be of any significance in the application of the law of 

anned conflict at sea. 

The contiguous zone is, of course, overlapped by the exclusive economic 

zone and the continental shelf. Insofar as the rules of anned conflict may be 

affected by the creation of these latter juridical areas in the oceans, which will 

be discussed below, those same effects would be felt in the contiguous zone. 

D. The Exclusive Economic Zone. The adoption of the concept of an exclusive 

economic zone (EEZ) in the 1982 Law of the Sea Convention represents the 

culmination of a long-continued effort by some segments of the international 

community to separate "jurisdiction" over the natural resources of offshore 

waters from "sovereignty" manifest in the territorial sea. As stated earlier,1 14 

by virtue of the territorial sea owing its origin to the law of neutrality, its 

"application to the right of fishing is accidental." In the words of Dr. Rauch, 

"[The EEZ] is the synthesis of the fisheries zone, epicontinental sea, patrimonial 

sea, and the continental shelf concept which started with the Truman Proclamation of 1945.

,, 1 15 

Although the coastal State exercises "sovereign rights" over the EEZ for the 

purpose of exploring and exploiting, managing and conserving its living and 

non-living resources and "jurisdiction" to the extent provided in the Convention 

with regard to the establishment and use of artificial islands, installations and 

structures, marine scientific research, and the protection and preservation of the 

marine environment,1 16 it is clear that the EEZ is not incorporated into the 

territorial regime of the coastal State as are internal waters and the territorial 

sea.1 17 Reinforcing the distinction between the territorial sea and the exclusive 

economic zone is paragraph 2 of Article 58, which states, "Articles 88 to 1 15 

[from the High Seas Part of the Convention] and other pertinent rules of 

international law apply to the exclusive economic zone in so far as they are not 

incompatible with this Part." Article 89, which is among those articles so 

incorporated into the exclusive-economic-zone Part of the Convention, states, 

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

sovereignty ... 

Whether one considers the EEZ as part of the high seas, as some authorities 

contend, or as an area that is sui generis, as contended by others,1 18 it is clear 

that it is a zone that is neither territorial nor has wholly the characteristics of 

high seas. It is a zone in which competences are allocated to coastal States on 

the one hand and all other States on the other so as to balance the need of the 

coastal State to have sufficient authority to exploit and manage the economic 

resources (article 56 (1)) against the need of all other States to retain high seas 

navigation and communications freedoms and uses related to such freedoms 

(article 58 (1)). Article 58(1) describes these high-seas freedoms as follows: 

23 
The Newport Papers 

1. In the exclusive economic zone, all States, whether coastal or land-locked, enjoy, 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. 

As stated by Elliot Richardson, the United States Ambassador to UNCLOS 

Il: 

In the group which negotiated this language it was understood that the 

freedoms in question ... must be qualitatively and quantitatively the same as 

the traditional high-seas freedoms recognized by international law: they must 

be qualitatively the same in the sense that the nature and extent of the right 

is the same as the traditional high-seas freedoms; they must be quantitatively 

the same in the sense that the included uses of the sea must embrace a range 

no less complete-and allow for future uses no less inclusive-than traditional high-seas freedoms,ll9 

Except for the freedom of fishing, freedom of scientific research, and 

freedom to construct artificial islands and other installations which are related 

to the exploration and exploitation of the resources of the EEZ, the freedoms 

are identical to those enumerated in article 87 as applicable in the high seas. 

Although article 58 is not open-ended, as is article 87 in which the enumeration 

of high seas freedoms is preceded by the term inter alia, the addition of the 

phrase "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" in article 58 seems to serve the same purpose. 120 The balance between the rights of coastal States and other States in the 

EEZ is also reflected in the paragraphs of articles 56 and 58 which require both 

coastal States (article 56(2» and other States (article 58(3» to have "due regard" 

to the rights and duties of "other" States and coastal States respectively. 

In assessing this balance and applying it to the operations of warships in the 

exclusive economic zone, Professor Oxman concluded as follows: 

[W]arships in principle enjoy freedom to carry out their military missions 

under the regime of the high seas subject to three basic obligations: (1) the 

duty to refrain from the unlawful threat or use of force; (2) the duty to have 

"due regard" to the rights of others to use the sea; and (3) the duty to observe 

applicable obligations under other treaties or rules of international law. The 

same requirements apply in the exclusive economic zone, with the addition 

of an obligation to have "due regard to the rights and duties of the coastal 

State" in the exclusive economic zone.121 

24 
Although Oxman was concerned explicitly only with peacetime rights, his 

conclusion is equally applicable in time of anned conflict as well. The juridical 

nature of the zone does not change with the transition from peace to war. 1

22 

There is thus no basis for concluding that, except for the duty to have due regard 

to the rights of the coastal State for the exploitation of the economic resources 

of the zone, the conduct of hostilities by belligerent States in the exclusive 

economic zone of a neutral State is subject to greater restraints than is their 

conduct on the high seas. Clearly, there is no basis for concluding from the 

tenns of the LOS Convention that the EEZ is to be equated to the territorial sea 

insofar as the application of the rules of neutrality are concerned. 

Nevertheless, there have been suggestions from States and in the literature 

that some States may regard the regime of the EEZ as encompassing the right 

of coastal States to control military operations in the EEZ. The earliest suggestion to this effect which I have discovered was published anonymously in the 

official journal of the Swedish Navy in 1974, and is quoted in English translation in Dr. Rauch's monograph as follows: 

For Sweden it is of great interest to prevent, that other States use our exclusive 

economic zone for the deployment of nuclear weapons. The coastal State has 

to make sure that this does not happen .... In times of war the neutral State 

has the obligation under the 1907 Convention to protect its merchant navy 

and those of other States against military operations. The neutral State is also 

obliged to prevent the use of its sea territory by a belligerent as a base for 

naval operations against the adverse party. The rights and duties layed upon 

the coastal States in the exclusive economic zone will also have to be fulfilled 

in situations where the coastal State remains neutral in a war between third 

powers. The protection of neutrality in this case is evidently-in whole or in 

part-extended to the exclusive zone.12l 

At several times during the negotiation of the Law of the Sea Convention, the 

delegate of Sweden made statements concerning the relevance of the Convention to the law of neutrality as expressed in Hague XIII. 124 Although the 

connection between the anonymous article and the official statements of the 

Government of Sweden is not readily apparent, Dr. Rauch raises them as a 

matter of concern. 

Dr. Rauch analyzes several bases on which a claim might be made that the 

neutrality rules of Hague XIII applicable to the territorial sea were also 

applicable to the EEZ. One is the similarity of language in Hague XIII and the 

LOS Convention. While acknowledging that the French text of the LOS 

Convention uses the tenns droit souverain and juridiction to describe the 

jurisdiction exercised by the coastal State in the EEZ, which are also the tenns 

used in the French text of Hague XIII (the only authentic text), he does not 

conclude from this that "the new concept of the exclusive economic zone is 

nunc pro tunc to be included in the historical scope of application" of Hague 

25 
The Newport Papers 

xm. In his view, it is clear that what was meant by the terms droit souverain 

andjuridiction in Hague XIII was maritime areas subject to the sovereignty of 

the State-in modern terms, the territorial sea and internal waters. 125 But Rauch 

does not stop at that point; he argues that if a State may not subject the EEZ to 

its sovereignty in time of peace, citing article 89, it "amounts to a clear 

prohibition in time of war to attempt to subject the exclusive economic zone to 

principles of neutrality," 126 since " [t]he starting point of the regulations ought 

to be the sovereignty of the neutral State. ,,

127 He concludes that "acts of hostility 

between belligerents can be committed in the exclusive economic zones of 

neutral States as a legitimate exercise of traditional rights under the law of 

war.,,128 

While Dr. Rauch's conclusion would appear to be irrefutable, at least one 

other thread tying the EEZ to territorialist theories has appeared. At the fmal 

session of the Conference in Montego Bay, Jamaica, in 1 982, Brazil declared 

on its signing of the Convention that its government "understands that the 

provisions of the Convention do not authorize other States to carry out military 

exercises or manoeuvres within the exclusive economic zone, particularly when 

these activities involve the use of weapons or explosives, without the prior 

knowledge and consent of the coastal State. ,,

129 Similar statements have also 

been made by the governments of Cape Verdel30 and Uruguay. l3l These 

statements were contested by statements of the governments of Italy, France, 

and the United States, exercising the right of reply, 132 and have been rejected 

by Ambasador T.T.B. Koh, who was the President of UNCLOS il during the 

latter part of the Conference,133 as well as by Barbara Kwiatkowska in her 

treatise on the EEZ. I34 

In addition to its asertions concerning military maneuvers in the EEZ, Brazil 

also requested the Legal Committee of ICAO to hold that the rules of overflight 

of the EEZ were the same as for those over land territory and the territorial sea. 

The Legal Committee rejected this request, holding that such a position was 

totally incompatible with the provisions of the LOS Convention, which equate 

the EEZ with the high seas insofar as freedom of overflight is concerned. 135 

Although the positions stated by Brazil, Cape Verde, and Uruguay were 

directed explicitly to a peacetime situation, one may infer that they might be 

asserted with respect to the conduct of hostilities and other military operations 

in their exclusive economic zones in time of war. As already developed, this 

position cannot be supported by the terms of the LOS Convention. Nor is it 

supported by the three military manuals that have been examined. The Canadian 

Draft Military Manual provides explicitly in paragraph 703 that, "The general 

area within which the naval forces of belligerents are permitted to conduct 

operations involving the use of force includes: the high seas (including exclusive economic zones) .... ,,

136 The German Manual likewise provides, "[A]s 

a matter of principle acts of naval warfare may be performed as in the high seas 

26 
also in the exclusive economic zones of neutral or non-belligerent states ... 137 

Although the United States's manual does not state the same proposition 

explicitly, it does so by negative implication by defining neutral territory as 

including only the neutral's land, internal waters, territorial sea, and archipelagic waters (if any). 

13

8 

From the foregoing analysis, it seems incontestable that, despite the assertions of a few States and publicists, the exclusive economic zone may be equated 

to the high seas insofar as the application of the law of neutrality is concerned. 

Since the rights of the coastal State in the seabed of the EEZ are exercised in 

accordance with the continental-shelf Part of the LOS Convention,139 discussion of hostile military activities or placing of military devices on the seabed 

of the EEZ will be discussed below in the section on the continental shelf. 

E. The Continental Shelf. The continental shelf comprises the seabed and 

subsoil of a coastal State from the outer boundary of its territorial sea to the 

outer edge of the continental margin or, for coastal States with margins less 

than 200 miles, to the outer boundary of the exclusive economic zone. 140 For 

the few coastal States which have continental margins wider than 200 miles, 

the edge of the continental margin is determined by a complex formula 

contained in article 76 of the Convention which may extend the outer boundary 

to as much as 350 miles from the baseline or 100 miles beyond the 25OO-meter 

isobath. 

On the continental shelf the coastal State exercises "sovereign rights for the 

purpose of exploring it and exploiting its natural resources. ,,

141 Unlike the EEZ, 

however, the coastal State's jurisdiction over the continental shelf does not 

extend to the water column or airspace above it, except insofar as is necessary 

to allow the coastal State to construct artificial structures on the continental 

shelf for the purpose of exploiting it and establishing reasonable safety zones 

around such structures. In this connection, the provisions of Article 60 of the 

EEZ Part of the Convention apply mutatis mutandis to the continental shelf. 142 

The Convention provides explicitly that "the rights of the coastal State over the 

continental shelf do not affect the legal status of the superjacent waters or of 

the air space above those waters" and that " [t]he exercise of the rights of the 

coastal State over the continental shelf must not infringe or result in any 

unjustifiable interference with navigation and other rights and freedoms of other 

States as provided for in this Convention ... 143 Conversely, by incorporation of 

article 60 by reference into the continental-shelf Part of the Convention, "All 

ships must respect these safety zones [around continental-shelf installations] 

and shall comply with generally accepted international standards regarding 

na vigation in the vicinity of artificial islands, installations, structures and safety 

zones."I44 Thus, the waters above the continental shelf are governed by the 

27 
The Newport Papers 

regime of the exclusive economic zone insofar as they are within 200 miles of 

the baseline and by the regime of the high seas where they are beyond that limit. 

Since the continental shelf itself has a status different from the waters 

superjacent to it, it is appropriate to discuss acts of warfare that may be 

conducted in the water column separately from those that may be conducted on 

the seabed itself. 

1. Waters Superjacent to the Continental Shelf. As the previous discussion of the exclusive economic zone has concluded, the waters of the EEZ have 

the same characteristics as those of the high seas with respect to the conduct of 

hostilities by belligerents therein and the application of the law of neutrality 

thereto, save only for the duty to have "due regard" for the rights of the coastal 

State in the zone. A fortiori the waters above the continental shelf beyond the 

exclusive economic zone are high seas in the strictest sense of that term and are 

not in any way different from other parts of the high seas with respect to 

belligerent activity save only the duty to respect the safety zones and comply 

with international standards regarding navigation in the vicinity of artificial 

islands, installations, structures, and safety zones. 

1

45 Thus, the only restriction 

on the law of armed conflict at sea that would be made necessary by the 

emergence of the continental shelf as a defined area of the oceans is to 

incorporate cautionary notes concerning respect for and non-interference with 

legitimate activities and structures utilized by the coastal State for exploitation 

of the natural resources of the shelf. 

2. The Seabed of the Continental Shelf. Since the relevant articles of both 

the 1958 Continental Shelf Convention 146 and the LOS Convention147 recognize that the coastal State exercises only "sovereign rights for the purpose of 

exploiting" the shelf and its resources, they visualize that other States may use 

the seabed of the shelf for other purposes not inconsistent with and not 

interfering with the coastal State's exclusive rights of exploitation of natural 

resources. Although India introduced a proposal at UNCLOS I that would have 

prohibited the building of military bases or installations on the continental shelf 

"by the coastal State or any other State," this proposal was defeated. 148 A similar 

proposal, but limiting the prohibition to States other than the coastal State, was 

put forth by Mexico and Kenya at an early stage of UNCLOS III. This proposal 

did not find its way into the negotiating texts nor the final Convention. 149 The 

negotiating history of the two most important international instruments would 

thus seem to suggest that, subject to the restrictions on the use of the seabed 

found in the Conventions themselves, emplacing weapons or other military 

devices on the seabed of the continental shelf, both within the 200-mile EEZ 

and beyond, is permissible as the exercise of a freedom of the high seas. 1

50 The 

military activities on the seabed of the continental shelf most often discussed 

are the laying of mines or cable arrays for underwater detection and surveillance. 

28 
Article 60 of the LOS Convention, which is applicable to the continental 

shelf as well as to the EEZ, contains the relevant restrictions on the construction 

of installations on the seabed. It provides in part as follows: 

Article 60 

Artificial islands, installations and structures in the 

exclusive economic zone 

1. In the exclusive economic zone, the coastal State shall have the ex­

. clusive right to construct and to authorize and regulate the construction, 

operation and use of: 

(a) artificial islands; 

(b) installations and structures for the purposes provided in article 56 

and other economic purposes; 

(c) installations and structures which may interfere with the exercise of 

the rights of the coastal State in the zone. 

2. The coastal State shall have exclusive jurisdiction over such artificial 

islands, installations and structures, including jurisdiction with regard to 

customs, fiscal, health, safety and immigration laws and regulations. 

3. Due notice must be given of the construction of such artificial islands, 

installations or structures ... 

4. The coastal State may, where necessary, establish reasonable safety 

zones around such artificial islands, installations and structures ... 

6. All ships must respect these safety zones ... 

7. Artificial islands, installations and structures and the safety zones 

around them may not be established where interference may be caused to the 

use of recognized sea lanes essential to international navigation. 

(Emphasis supplied) 

A careful reading of the quoted portion of Article 60 reveals that a coastal 

State may regulate (under a reasonable interpretation this would also include 

"prohibit") the construction, operation, and use of artificial islands whatever 

their purposes, other installations and structures whose purposes are the 

economic exploration or exploitation of the EEZ or continental shelf, and those 

installations erected by others which may interfere with the rights of the coastal 

State in the zone. In other words, a coastal State has the exclusive right to 

construct and regulate artificial islands in the EEZ and on the continental shelf. 

But it does not have the right to regulate or prohibit installations and structures 

other than artificial islands unless they are for an economic purpose or would 

interfere with the coastal State's right to economic exploitation of the zone or 

shelf. In addition, neither the coastal State nor any other State may construct or 

operate structures or installations where they will interfere with navigation 

(para. 6), and other States must respect the safety zones established by the 

coastal State. Furthermore, the constructing State need not give notice of such 

installations or structures unless they are of such a type that their location or 

29 
The Newport Papers 

operation "may interfere with the exercise of the rights of the coastal State" 

(para. 3). Of course, the State other than the coastal State engaging in such 

activities must abide by the requirements of "due regard" for the rights of the 

coastal State and for the interests of all States in their exercise of the freedoms 

of the high seas. 

Under the foregoing interpretation, which is believed to be the correct one, 

there is no prohibition against States other than the coastal State employing or 

emplacing weapons or detection devices on the seabed of the EEZ or continental 

shelf if they would not interfere with the coastal State's exploitation of the 

resources of the EEZ or continental shelf and if they are in compliance with the 

explicit restrictions contained in article 60. 151 

Although the Partial Test Ban Treaty of 1963,152 the Seabed Treaty of 

1971,153 and the Tlatelolco Treaty of 1967154 contain certain restrictions on the 

emplacement of nuclear weapons and other weapons of mas destruction in 

some areas of the seabed, I have not included a discussion of their provisions, 

since the subjects of those treaties are beyond the scope of this paper. 

F. Archipelagic Waters. Under the traditional law of the sea, and under most 

circumstances in the 1982 LOS Convention, islands are treated in the same 

manner as mainlands with respect to the drawing of baselines and delimitation 

of the territorial sea and other coastal zones. The 1982 Convention, however, 

recognized a special exception in the case of archipelagic States, which are 

permitted to draw archipelagic baselines enclosing a newly recognized category 

of waters-archipelagic waters. 

Archipelagic waters are created when an archipelagic State meeting the 

qualifications of article 47 of the LOS Convention draws archipelagic baselines 

joining the outermost points of the outermost islands and drying reefs of the 

archipelago. The waters enclosed thereby are denominated "archipelagic 

waters." 

The terms of article 47 permit archipelagic baselines to be as much as 100 

nautical miles long, with up to three percent of the total number of baselines as 

much as 125 miles in length. As can be seen by examining a map of Indonesia, 

which is the archetypical archipelagic State, adoption of archipelagic baselines 

can create archipelagic waters of enormous proportions. Indonesia stretches 

approximately 3,000 miles east to west and almost 1 ,00 miles north to south. 

Indonesia's archipelagic baselines are over 8,00 miles in length and enclose 

some 666,00 square nautical miles of ocean space. They also encompas the 

important straits of Sunda, Sumba, Lombok, Ombai, Molucca, and Macassar 

as well as a number of important internal passages within the archipelago. 155 

The sovereignty of the archipelagic State extends to all waters enclosed by 

archipelagic baselines, regardless of their depth or distance from the coast 

(article 49). The sovereignty also extends to the airspace above and the bed and 

30 
subsoil of the archipelagic waters. Es

entially, the only limitations on the 

sovereignty of the archipelagic State over archipelagic waters are the rights 

preserved in all other States (1) to archipelagic sea-lanes passage and air routes 

through archipelagic sea-lanes as defIned by the archipelagic State, or if none 

are designated then through the routes normally used for international navigation (article 53), and (2) to innocent passage through other areas of archipelagic 

waters (article 52). Within archipelagic waters, archipelagic States may draw 

closing lines for the delimitation of internal waters in accordance with the rules 

for drawing baselines for the territorial sea (article 50). The archipelagic State's 

territorial sea, contiguous zone, exclusive economic zone and continental shelf 

extend outward from the archipelagic baselines. 

1. Archipelagic Waters Outside of Archipelagic Sea-Lanes. The legal 

character of archipelagic waters is essentially identical to that of the territorial 

sea. On this basis Dr. Rauch concludes without serious discussion that "belligerents in future will have to respect archipelagic waters the same way as they 

have to respect the territorial sea of the coastal State."IS6 The United States 

manual adopts the same conclusion, although it precedes it with a cautionary 

statement, as follows: 

The balance of neutral and belligerent rights and duties with respect to 

neutral waters is, however, at its most unsettled in the context of archipelagic 

waters. 

Belligerent forces must refrain from acts of hostility in neutral archipelagic 

waters and from using them as a sanctuary or a base of operations. m 

In its chapter on the rights and duties of neutral powers, the Canadian draft 

manual likewise equates archipelagic waters of a neutral State to the territorial 

sea of such a State, stating: 

1. Neutral waters are the inland waters, internal waters, territorial seas 

and, where applicable, archipelagic seas of states which are not participants 

in an international armed conflict. ... 

2. Any act of hostility, as, for example, the seizure of or attack upon an 

enemy vessel within neutral waters is a breach of neutrality and as such is 

forbidden. I�8 

In the chapter on conduct of hostilities at sea, however, in the paragraph entitled 

"General Area of Naval Warfare," the Draft Manual does not include archipelagic waters of belligerents in the recitation of areas of the sea open to the 

conduct of hostilities. That paragraph provides: 

1. The general area within which the naval forces of belligerents are 

permitted to conduct operations involving the use of force includes: the high 

seas (including exclusive economic zones), the territorial sea and internal 

31 
The Newport Papers 

waters of belligerents, the territory of belligerents accessible to naval forces, 

and the air space over such waters and territories. 1 59 

These apparent inconsistencies undoubtedly reflect the fact that the Canadian 

Manual is still in draft fonn and will be addressed in the review process. 160 

Although the Gennan Manual states that archipelagic waters of the parties 

to the conflict are legitimate areas for the perfonnance of acts of naval 

warfare,161 its chapter l I on the law of neutrality refers only to the "territorial 

waters" of neutrals. 162 In paragraph 10 12 of the preceding chapter on anned 

conflict at sea, however, the Manual states that "The rights of coastal and 

archipelagic states must . . . be taken into due consideration." The Gennan 

Manual, like the Canadian one, is also in draft fonn and subject to further 

revision. 

What has been said above with respect to the effects of the broadening of the 

territorial sea as a result of the adoption of a twelve-mile breadth and the 

liberalization and abuse of straight baselines 163 applies with even more vigor 

to archipelagic waters. If, in a situation in which an archipelagic State such as 

Indonesia is a neutral, these vast areas of archipelagic waters which were 

fonnerly high seas are to be removed from the area open to the conduct of naval 

hostilities and to become "neutral waters" with all the consequences that that 

tenn implies, both for the rights and obligations of neutral States as well as to 

the belligerent States, one may wonder whether either neutrals or belligerents 

will be able to live up to their obligations. If the narrow Norwegian territorial 

sea was a "covered way" enabling Gennan submarines to transit to and from 

the high seas sheltered from attack by British naval and air forces,l64 neutral 

archipelagic waters could become a vast, protected superhighway providing a 

tempting haven for escape from attack and as a secret base for operations. The 

vastness of such waters certainly renders dubious the so-called twenty-fourhour rule of Hague xm165 and increases manifold the burdens imposed on a 

neutral State by the obligation to exercise surveillance of its neutral waters. l66 

This is true whether the archipelagic State chooses to allow belligerent warships 

to continue to exercise the right of "mere passage" through its archipelagic 

waters or deny such passage, as would be pennitted if archipelagic waters are 

analogized to the territorial sea in this respect. 167 In either event, the burdens 

of surveillance and enforcement on the neutral State would be heavy, and the 

neutral's failure or inability to live up to these obligations would be likely to 

embroil it in the conflict. This danger is recognized in the United States manual, 

which provides : 

The neutral archipelagic nation has an affinnative duty to police its archipelagic waters to ensure that the inviolability of its neutral waters is 

respected. If a neutral nation is unable or unwilling effectively to detect and 

expel belligerent forces unlawfully present in its archipelagic waters, the 

32 
opposing belligerent may undertake such self-help enforcement actions as 

may be necessary to terminate the violation of neutrality. Such self-help 

enforcement may include surface, subsurface, and air penetration of archipelagic waters and airspace and the use of proportional force as necessary.

l68 

2. Archipelagic Sea-Lanes and Archipelagic Sea-Lane Passage. The 

waters of archipelagic sea-lanes and the airspace above them are subject to a 

different navigation regime than are archipelagic waters outside such sea-lanes. 

An archipelagic State may not deny to ships and aircraft of other States the right 

of archipelagic sea-lane passage through its archipelagic waters in time of 

peace.

169 In designating such passages, which will normally be fifty nautical 

miles in width, the archipelagic State must include for ships "all normal 

navigational channels." 1 70 If the archipelagic State fails to make such designations, "the right of archipelagic sea-lanes passage may be exercised through the 

routes normally used for international navigation.,,

171 As previously stated, 

archipelagic sea-lanes passage, in legal terms, is essentially identical to transit 

pasage through straits. 172 In exercising their rights of archipelagic sea-lanes 

pasage, foreign ships and aircraft may proceed in their "normal mode" but only 

for the purpose of "continuous, expeditious and unobstructed transit between 

one part of the high seas or an exclusive economic zone and another part of the 

high seas or an exclusive economic zone,', 173 and they must observe the same 

types of rules and regulations that are applicable in transit passage through 

straits. 174 

Since transit passage and archipelagic sea-lanes passage are to all intents and 

purposes legally identical, the same logic which compelled the conclusion that 

in time of war belligerent warships and military aircraft may exercise the right 

of transit passage through neutral straits would lead to the same conclusion with 

respect to archipelagic sea-lanes passage through archipelagic sea-lanes. 

This conclusion is accepted by the United States manual, which states that: 

Belligerent ships or aircraft, including submarines, surface warships, and 

military aircraft retain the right of unimpeded archipelagic sea lanes passage 

through, over, and under neutral archipelagic sea lanes. Belligerent forces 

exercising the right of archipelagic sea lanes passage may engage in those 

activities that are incident to their normal mode of continuous and expeditious 

passage and consistent with their security. m 

The Canadian Manual does not deal with archipelagic sea-lane passage 

separately but rather couples it with transit passage, as follows: 

Warships and military aircraft of a belligerent state may exercise the right of 

transit passage, that is, of essentially unimpeded passage or overflight in an 

appropriate state of readiness with appropriate sensors activated, through 

33 
The Newport Papers 

certain straits where the transit passage [regime?] applies or through archipelagic sea lanes.176 

In interpreting what the United States manual means when it states "activities 

that are incident to their normal mode," one needs to tum to the provisions of 

the manual dealing with transit pasge through neutral straits, where it is stated: 

Belligerent forces in transit may ... take defensive measures consistent with 

their security, including the launching and recovery of aircraft, screen formation steaming, and acoustic and electronic surveillance. In 

Although archipelagic sea-lanes passage through archipelagic waters may 

be the legal equivalent of transit passage through straits, geographical factors 

may create large differences in practical effect. A strait is usually a geographical 

phenomenon of small dimensions, usually only a few miles from entrance to 

exit, requiring only a few hours, at most, for pasage. 1 78 Usually there is only 

one entrance and one exit. 1 79 On the other hand, taking Indonesia as the prime 

example, archipelagic waters include vast areas, with numerous internal straits 

and passages, dictating multiple, intersecting archipelagic sea-lanes. A naval 

ship or formation entering at one extremity of the archipelago and steaming at 

a wartime cruising speed of twenty knots, for example, would require over six 

days to traverse its entire East-to-West dimension using the most direct route. 

The ship or formation could, through the use of intersecting archipelagic 

sea-lanes, emerge at any of a number of exits, shielded the entire time from air, 

surface, or submarine attack from enemy forces. One may question whether it 

is reasonable to asume that an enemy force would accept the traditional 

restraints on hostile activities (which presumably would include surveillance) 

for pasage of such great span and duration. 

3. Concluding Remarks Concerning Archipelagic Waters. It is apparent 

from the foregoing discussion that of the "new zones" recognized in the 1982 

LOS Convention, archipelagic waters present the most difficult issues. In a 

paper prepared for delivery soon after the close of UNCLOS il, Rear Admiral 

Bruce Harlow, a vice-chairman of the United States delegation to that Conference, posed a number of questions concerning the impact archipelagic waters 

would have on the law of neutrality. He stated: 

What then is the solution? When a neutral cannot or will not take meaningful measures to preclude potential violations, may a belligerent step in and 

undertake the mission of verifying that neutral waters are free of the enemy? 

Or would this contravene the traditional rule of inviolability of neutral 

sovereignty? If a departure from this rule were permitted for surveillance 

missions, would such missions have to be identified so that they would not 

be confused with prohibited belligerent operations? If the surveillance/verification mission detected a violator, would the matter have to be 

34 
referred to the neutral for action, or could those engaged in surveillance attack 

the violator pursuant to their belligerent right to take corrective measures 

against known violations? What would happen if two opposing surveillance 

forces met? May aircraft be used for surveillance/verification missions 

despite the traditional prohibition on overflight of sovereign waters? What 

standard would justify initiation of surveillance/verification missions: in the 

discretion of the belligerent; upon a reasonable determination that the enemy 

might use neutral waters; upon determination that the enemy was using 

neutral waters? What would be the impact of a pattern of prior abuses without 

evidence of a present violation? Would a different standard apply for a neutral 

archipelagic state that was willing, but plainly unable, to take actions that 

would effectively ensure that neutrality violations were precluded, than in the 

case of another neutral whose words or deeds demonstrated a clear unwillingness, regardless of the level of its capabilities?180 

Except for Dr. Rauch's monograph, Admiral Harlow's ruminations, and the 

United States Manual, it would appear that the relationship between the status 

of archipelagic waters and the law of armed conflict at sea (including the law 

of neutrality), is largely unexamined in the published legal literature. 181 As can 

be seen from the foregoing discussion, archipelagic waters pose the most 

difficult problems for a mechanical application of traditional rules of naval 

warfare and neutrality to the zones created in the "new" law of the sea. It is 

submitted that it is unlikely for the traditional rules to survive unchanged in the 

event of a naval conflict in which archipelagic waters of significant dimensions 

come into play, either as neutral waters or waters of either belligerent party. 

G. The Area. According to the 1982 U.N. Convention on the Law of the Sea, 

the "Area" is "the sea-bed and ocean floor and subsoil thereof, beyond the limits 

of national jurisdiction.,,

182 In effect, this means that the seabed beyond the 

outer edge of the continental shelf of any State comprises the Area. The legal 

status of the waters superjacent to the Area and the airspace above those waters 

is not affected by the creation of the Area. 183 In essence, the freedoms of the 

high seas apply to these waters and airspace. 

Part XI of the Convention, which governs activities in the Area, including 

the regime for exploration and exploitation of its resources, is the most controversial Part of the Convention. Unlike those Parts of the Convention 

heretofore discussed in this Report, Part XI has not been regarded as reflective 

of customary international law. 1 84 The United States and several other States 

of the developed world have as

igned as their reason for refusal to become 

parties to the Convention the unacceptability of Part XI, and some have enacted 

interim deep-sea mining codes that permit exploitation of the seabed beyond 

national jurisdiction under national laws.

1 8S Nevertheless, even those States 

which have refused to accept the detailed regime for mining the deep seabed 

contained in Part XI accept the fact that whether the resources of the deep seabed 

35 
The Newport Papers 

are developed in accordance with Part XI or some successor regime or in 

accordance with national laws, no State may claim or exercise sovereignty over 

the seabed and subsoil beyond the limits of national jurisdiction. 186 For that 

reason it is appropriate to include a paragraph or two about the implications of 

the existence of such an area for the law of armed conflict at sea. For the sake 

of convenience, it will be referred to as the " Area," even though that term is not 

accepted by those States who object to Part XI of the Convention. 

Since the Area includes only the seabed, ocean floor, and subsoil thereof, 

the only foreseeable impact it might have on hostile activities in the water 

column and airspace above it is in the possible interference between the 

platforms and other gear used by those who may be engaged in activities 

exploiting the seabed (presumably neutrals) and belligerents engaging in hostile 

activities against each other. With respect to such possible interferences, the 

LOS Convention provides that the freedoms of the high seas "shall be exercised 

by all States with due regard for the interests of other States in their exercise of 

the freedom of the high seas, and also with due regard/or the rights under this 

Convention with respect to activities in the Area.,,

1 87 

The creation of the " Area," whatever form it may ultimately take, should 

thus have no more impact on the conduct of armed hostilities on the high seas 

than on other activities that take place on the open ocean, such as fishing and 

scientific research. 

VI 

Mine Warfare 

Although aU weapon systems and platforms are affected by the principles 

and considerations which have been addressed above, naval mines are probably 

the most acutely affected, since, except for rarely used unanchored mines, they 

are usually laid in shallow waters, placing them within one of the zones subject 

to coastal state jurisdiction. It is thus appropriate to include comments explicitly 

directed to mine warfare in addition to the general discussion above in section 

V.E. pertaining to the continental shelf. 

Hague Convention (VII Relative to the Laying of Automatic Contact Mines 

is the only treaty law governing the emplacement and employment of naval 

mines. 

1 88 Hague VII

 contains no geographical limitations on where mines may 

be employed other than the rather vague geographical term "off the coast and 

ports of the enemy" in Article 2 and "off their coasts" (referring to neutral 

coasts) in article 4. As pointed out by Professor Howard Levie in his recent 

bok, Mine Waifare at Sea, 1 89 articles originally proposed by the British 

delegation to the Hague Conference would have limited the laying of anchored 

automatic submarine contact mines beyond three nautical miles from the 

low-water mark along the whole extent of the coasts of belligerent states 

36 
(friendly and enemy) with an extension allowed to ten nautical miles off 

defended ports. l90 Because of what Professor Levie describes as "strange 

twists" in negotiation and parliamentary complications, 191 all references to 

geographical limitations (other than the two mentioned above) were dropped 

from the Convention. The negotiation thus focused on restrictions on minelaying generally applicable, regardless of area. The result was, as stated by Sir 

Ernest Satow, the British delegate, that "the Convention as adopted imposes 

upon the belligerent no restriction as to the placing of anchored mines, which 

consequently may be laid wherever the belligerent chooses, in his own waters 

for self-defense, in the waters of the enemy as a means of attack, or finally on 

the high seas, ...

.. 192 

A proposal by the Dutch delegation which would have prohibited the laying 

of mines so as to bar passage through straits met a similar fate. 193 Rather than 

include an article on straits, the final report of the Third Commission merely 

included a statement that: 

[T]he committee decided unanimously to suppress all provisions relating to 

straits, which should be left out of the discussion in the present Conference. 

It was clearly understood that under the stipulations of the Convention to be 

concluded nothing whatever has been changed as regards the actual status of 

straits. 194 

After examining the practice of States in all conflicts since the adoption of 

Hague VIII in 1907, Professor Levie concludes that: 

[T]oday the practice of nations is that there is only one geographical limitation 

on belligerent minelaying-they may not be laid in the territorial sea or inland 

waters of neutrals. 1 9' 

It should be remembered, however, that during most of the period covered by 

Professor Levie's study, the breadth of the territorial sea was generally regarded 

as extending only three nautical miles from baselines which were almost 

uniformly drawn along the low-water mark of the coast line. 

As developed in sections V.D. and E. above, the special economic and 

resource jurisdiction exercised by States in their EEZ<; and continental shelves 

does not prohibit the emplacement or employment of weapons (including 

mines) on the seabed or in the waters of the EEZ and continental shelf unless 

they would interfere with the coastal State's exploitation of the resources of the 

EEZ or the continental shelf. On the other hand, coastal States exercise full 

sovereignty over their internal waters, the territorial sea, and archipelagic 

waters. The territorial sea is subject to the right of innocent passage, and where 

it embraces a strait used for international navigation, also to the regime of transit 

passage. Archipelagic waters are subject to the right of innocent passage, and 

37 
The Newport Papers 

in archipelagic sea-lanes (where none are designated, the routes nonnally used 

for international navigation), to the right of archipelagic sea-lane pasage. In 

principle, then, the same rules should apply to expanded territorial seas and to 

archipelagic waters as applied to the territorial sea prior to its increase in breadth 

to twelve nautical miles. Likewise, since archipelagic sea-lanes pasage is 

substantially identical to transit pasage through international straits, in principle, the rules for mining archipelagic sea-lanes should be the same as those 

for international straits. As we saw in Section V., however, rules applicable to 

a narrow territorial sea or a strait of limited geographical dimension may have 

a substantially different effect when applied to areas having the same legal 

characteristics but of vastly different geographical size. Nevertheless, the 

military manuals and draft manuals that have been examined (U.S., Canada, 

Gennany), appear to accept the same rules for the mining of expanded territorial 

seas and archipelagic waters as previously have applied to internal waters and 

the territorial sea. The United States Manual states: 

9.2.2 Peacetime Mining. Consistent with the safety of its own citizenry, a 

nation may emplace both armed and controlled mines1\l6 in its own internal 

waters at any time with or without notification. A nation may also mine its 

own archipelagic waters and territorial sea during peacetime when deemed 

necessary for national security purposes. If armed mines are emplaced in 

archipelagic waters or the territorial sea, appropriate international notification 

of the existence and location of such mines is required. l97 Because the right 

of innocent passage can be suspended only temporarily, armed mines must 

be removed or rendered harmless as soon as the security threat that prompted 

their emplacement has terminated. Emplacement of controlled mines in a 

nation's own archipelagic waters or territorial sea is not subject to such 

notification or removal requirements. 

Naval mines may not be emplaced in the internal, territorial, or archipelagic 

waters of another nation in peacetime without that nation' s consent. Controlled mines, however, may be emplaced in international waters beyond the 

territorial sea subject only to the requirement that they do not unreasonably 

interfere with other lawful uses of the oceans .... 

9.2.3. Mining During Armed Conflict. Naval mines may be lawfully 

employed by parties to an armed conflict subject to the following restrictions: 

2. Mines may not be emplaced by belligerents in neutral waters. 198 

6. Naval mines may be employed to channelize neutral shipping, but 

not in a manner to impede the transit passage of international 

straits or archipelagic sea lanes pasge of archipelagic waters by 

such shipping. 

8. Mining of areas of indefinite extent in international waters is 

prohibited. Reasonably limited barred areas may be established 

by naval mines, provided neutral shipping retains an alternate 

38 
route around or through such an area with reasonable as

urance 

of safety. 

The Canadian Manual's paragraph on naval mines contains no reference to 

geographic limitations, confming itself to quoting verbatim Articles 1 through 

3 of Hague VII. l99 One must determine geographic limitations for mining by 

turning to other provisions of the Manual dealing with areas of operations2OO 

and defining neutral waters.2°1 The former of these permits the conduct of 

operations using force (presumably including mines) on the high seas (including EEZs) and the territorial sea and internal waters of belligerents. The latter 

forbids acts of hostility within neutral waters, which are defined as the inland 

waters, internal waters, territorial seas, and archipelagic seas of States which 

are not participants in the international armed conflict. It thus appears that while 

the Canadian Manual would prohibit the laying of mines in neutral archipelagic 

waters, it takes no position as to whether a belligerent may mine an opposing 

belligerent's archipelagic waters. It is also silent as to whether any particular 

restrictions apply with regard to mining international straits. 

The German Manual deals with naval mines in both a peacetime and wartime 

environment and in the context of protective, defensive and offensive mining, 

which it defines as follows: 

In laying mines the following kinds are distinguished: 

protective mining, i.e., laying mines in friendly territorial and internal 

waters. 

defensive mining, i.e., laying mines in international waters for the 

protection of passages, ports and their entrances. 

offensive mining, i.e., laying mines in hostile territorial and internal 

waters or in waters predominantly controlled by the adversary.202 

The Manual contains no explicit provisions against mining of neutral waters, 

but the paragraph on Scope of Application of the rules states that 

[T]he space in which acts of naval warfare within the meaning of paragraph 

1014 may be performed comprises: 

the territory of the parties to the conflict accessible for naval forces. 

the internal waters, the archipelagic waters and the territorial sea of the 

parties to the conflict. 

the high seas, and 

the airspace over these land and sea areas?OJ 

Peculiarly, paragraph 1014 does not include "mining" as one of the acts of 

naval warfare, nor, for that matter, does it include attacking or sinking of enemy 

warships. Presumably these ambiguities will be clarified upon further revision 

of the Draft Manual. Assuming, for the purpose of the discussion, however, that 

the limitations in the "Scope of Application" paragraph are meant to apply to 

mine warfare, it would appear that the German Draft Manual would equate the 

39 
The Newport Papers 

archipelagic waters of belligerent parties to the territorial sea and would 

authorize their mining under the same rules that would apply to the territorial 

sea. 

The foregoing discusion suggests that neither the conventional law of mine 

warfare nor the customary practice of States has provided very clear guidelines 

as to the geographical limits of the employment of mines in naval conflict. The 

only settled principles are that in the era of the three-mile territorial sea it was 

lawful for a belligerent to employ mines in its own and its enemy's territorial 

sea and internal waters and that it was unlawful to employ them in the territorial 

sea and internal waters of a neutral State. Although there have been attempts to 

preserve freedom of navigation through international straits, and the United 

States Manual states that it is unlawful to lay mines "in a manner to impede the 

transit passage of international straits, .. 204 Professor Levie's study concludes 

that passage through straits "has been barred by mines in past conflicts and 

undoubtedly will be again in the future .

.. 205 

Archipelagic waters present an even more difficult problem. As discussed 

earlier, they are subject to the full sovereignty of the archipelagic State and in 

their legal characteristics are substantially identical to the territorial sea. Technically, then, the same principles that govern the mining of the territorial sea, 

whether of a neutral or a belligerent, should govern the archipelagic waters, and 

by the same rationale, the principles applicable to international straits should 

apply to archipelagic sea-lanes. Either expressly or impliedly, the three service 

manuals examined seem to accept these consequences. Whether this makes 

sense and will fonn a basis for an effective regime in time of conflict seems 

open to question. The vast areas encompassed with archipelagic waters and the 

great lengths of some archipelagic sea-lanes would suggest that rule-makers 

should be careful not to create rules that will be honored more in their breach 

than in their observance. 

VII 

Conclusions and Recommendations 

The emergence of a "new" peacetime regime for the oceans, with its 

expansion of existing zones subject to national jurisdiction and the creation of 

new zones also subject to the same or similar fonns of jurisdiction, has created 

problems of adaptation of the traditional rules of anned conflict at sea to these 

new developments. As has been found in the foregoing analysis, the current 

national manuals which have been examined (U.S., Canadian and Gennan) 

have adopted rules for the conduct of warfare in these new and expanded zones 

that are identical to those that were applicable prior to their expansion (L e. , the 

twelve-mile territorial sea) or have adopted by analogy the same rules for newly 

created areas that were applicable to zones of much smaller dimension that in 

40 
peacetime have the same legal characteristics (i. e. , archipelagic waters). As has 

been suggested by the foregoing analysis, however, the geographic and operational factors that determine the nature and scope of naval operations in time 

of armed conflict, and, in particular, the relationships between belligerent and 

neutral forces, render it uncertain as to whether such mechanical application of 

prior rules to new or expanded areas of national jurisdiction serves the best 

interests of either neutrals or belligerents or the humanitarian objectives of the 

rules. Massive expansions of waters that are denied to belligerents for hostile 

operations and for which neutral States have burdensome duties of surveillance 

and control are likely to increase beyond belligerents' power to resist the 

temptation to violate such waters and to overtax the capabilities of neutral States 

to enforce their duties within them. The result may well be increased tension 

between neutral and belligerent States with the consequent danger of widening 

the area of conflict and drawing neutral States into it. 

Admittedly, I have not been able to propose a better solution for the two areas 

that create the most difficult problems-the expanded territorial sea (which may 

be measured from greatly exaggerated baselines) and archipelagic waters. 

Accordingly, in suggesting the tentative recommendations for formulating 

updated rules applicable in various zones of the oceans as set forth below, I 

have adopted the formulations of the three manuals. While this to some extent 

ignores the problems I have pointed out with respect to these formulations, it 

nevertheless accepts the three manuals as evidence of an emerging international 

law in this area?06 With this caveat in mind, I make the following tentative 

recommendations for reformulation of the rules of naval warfare that are 

affected by the emergence of new zones in the "new" law of the sea: 

1. Subject to other applicable rules of the law of armed conflict at sea,207 

hostile operations by naval forces may be conducted on the high seas, the 

territorial sea and internal waters, the land territories, and where applicable the 

archipelagic waters, of the belligerent, any co-belligerent and the enemy. For 

this purpose, the high seas include the exclusive economic zone and the waters 

and airspace above the continental shelf. 

2. When such hostile operations are conducted within the exclusive 

economic zone or the waters or airspace above the continental shelf of a neutral 

State, the belligerent States shall, in addition to observing the other applicable 

rules of the law of armed conflict at sea, have due regard to the rights and duties 

of the coastal State for the exploitation of the economic resources of the 

exclusive economic zone and the continental shelf. They shall, in particular, 

respect artificial islands, installations, structures, and safety zones established 

by neutral States in the exclusive economic zone and on the continental shelf. 

3. Neutral waters consist of the internal waters, territorial sea, and where 

applicable the archipelagic waters, of a State which is not a party to the armed 

conflict. 

41 
The Newport Papers 

4. Within neutral waters hostile acts by belligerent forces are forbidden. A 

neutral State must exercise such surveillance and enforcement measures as the 

means at its disposal allow to prevent violation of its neutral waters by 

belligerent forces. 

5. Hostile acts within the meaning of paragraph 4 include, inter alia: 

a. Attack or seizure of enemy warships or military aircraft; 

b. Laying of mines; 

c. Visit, search or capture; 

d. Detention of a prize or establishment of a prize court; 

e. Use as a base of operations. lOS 

6. Subject to the duty of impartiality, and under such regulations as it may 

establish, a neutral State may, without jeopardizing its neutrality, permit the 

following acts within its neutral waters: 

a. hmocent pasage209 through its territorial sea, and where applicable 

its archipelagic waters, by warships and prizes of belligerent States; for the 

purpose of exercising the right of inocent pasge the warship or prize may 

employ pilots of the neutral State; 

b. Replenishment by a warship of its food, water and fuel sufficient to 

reach a port within its national territory; 

c. Repairs of warships found necessary by the neutral State to make 

them seaworthy; such repairs may not include repair of battle damage210 nor 

increase their fighting strength. 

7. A belligerent warship may not extend its stay in neutral waters for longer 

than twenty-four hours unless the neutral State grants an extension because of: 

a. The stress of weather, or 

b. The route of innocent pasage is of such length as to require more 

than twenty-four hours for passage. 

8. Belligerent warships and military aircraft may exercise the right of transit 

pas

age through neutral international straits and archipelagic sea-lanes pasage 

through neutral archipelagic waters. While within neutral waters comprising an 

international strait or an archipelagic sea-lane, belligerent naval forces are 

forbidden to carry out any hostile act. 

9. Should a neutral State be unable or unwilling to enforce its neutral 

obligations with respect to hostile military activities by belligerent naval forces 

within its neutral waters, the opposing belligerent may use such force as is 

necessary within such neutral waters to protect its own forces and to terminate 

the violation of neutral waters. 

10. A neutral State shall not be considered to have jeopardized its neutral 

status by exercising any of the foregoing neutral rights nor by allowing a 

belligerent State to exercise any of the privileges permitted to a belligerent State. 

42 
Notes 

1. This paper is a revised version of a " report" prepared by the author as Rapporteur 

for the Fourth Meeting of the Round Table of Experts on International Humanitarian Law 

Applicable to Armed Conflicts at Sea u nder the Madrid Plan of Action. The Round Table 

is sponsored by the International Institute of Humanitarian Law, San Reno, Italy, to whom 

the author is grateful for encouraging its publication. The paper was prepared while the 

author was occupying the Charles H. Stockton Chair ofInternational Law at the u.S. Naval 

War College in 1 99 1 -1992. The author wishes to express thanks to the Naval War College 

for making available the time and research resources necessary for completion of the paper 

during his tenure at the War College. The views expressed herein are personal to the author 

and do not necessarily reflect those of the United States Government or the U.S. Naval War 

College. 

2. U.N. Document A/CONF.62/122, o ened for signature at Montego Bay,Jamaica, 

10 December 1 982, reprinted in The Law oj the Sea: Official Text of the United Nations 

Convention on the Law of the Sea with Annexes and Index (New York: United Nations, 1983), 

Sales No. E.83.V.S (cited hereinafter as LOS Convention) . 

3. The Convention will enter into force one year after the deposit of the 60th 

ratification or accession. LOS Convention, supra note 2, article 308. As of the time of the 

writing of this paper Oune 1992), there were 51 ratifications. 

4. Statement by U.S. President, 10 March 1 983, Weekly Compilation of Presidential 

Documents, v. 1 9, No. 10, pp. 383 (14 March 1 983). 

5. American Law Institute, Restatement (Third) of the Law: The Foreign Relations Law of 

the United States (St. Paul: American Law I nstitute P ublishers, 1 987), v. 2, p. 5 (cited hereafter 

as Restatement (Third)) . 

6. The term "zone" as used in this paper does not include wartime exclusion zones 

such as those proclaimed by Germany in World Wars I and n or by Great Britain in the 

Falkland Islands War. A discussion of such "war" zones is beyond the scope of this paper. 

7. William L. Schachte, Jr. , U.S. Department of Defense Representative for Ocean 

Policy Affairs, "The Value of the 1 982 UN Convention on the Law of the Sea-Preserving 

our Freedoms and Protecting the Environment," (Address to the 25th Annual Conference 

of the Law of the Sea Institute, Malmo, Sweden, August 1 991), reprinted in Special Report 

of the Council on Ocean Law under the same title (Washington, undated) . 

8. Bernard H. Oxman, "The Regime of Warships Under the United Nations 

Convention on the Law of the Sea," Virginia Journal of International Law, v. 24, p. 809, at 

p. 81 1 (1984 (cited hereinafter as Oxman). 

9. See, e.g., Mark Janis, "Neutrality, " in Horace B. Robertson, Jr. , U. S. Naval War 

College International Law Studies, The Law of Naval Operations (Newport, R.I.: Naval War 

College Press, 1991), v. 64, p. 1 48; A.V. Lowe, "The Commander's Handbook on the Law 

of Naval Operations a nd the Contemporary Law of the Sea," id. , p. 1 09. 

10. Christopher Greenwood, "The Concept of War in Modern I nternational Law," 

International and Comparative Law Quarterly, v. 36, p. 283 at p. 300 (1 987). 

11. Perhaps the most complete and well-balanced history of the development of the 

law of the sea written in English (until its publication in 1 91 1) is Thomas Fulton's The 

Sovereignty of the Sea (Edinburgh and London: William Blackwood and Sons, 191 1). Although 

subtitled, "An Historical Account of the Claims of England to the Dominion of the British 

Seas , etc., ... " the book nevertheless deals extensively with claims of other states to areas of 

exclusive jurisdiction as well as the counter-assertions of those states which opposed such 

claims of exclusive jurisdiction or sovereignty. I have relied extensively on this book in 

developing the following summary. Where important for identifying the specific source of 

a statement, I have cited to the particular pages of the book from which the statement was 

taken; where only general ropositions are stated, I have not attempted to identify the precise 

source. (TIle Sovereignty oj the Sea is cited hereinafter as Fulton) . A second exhaustive and 

more modern history may be found in Sayre A. Swarztrauber, The Three Mile Umit of Territorial 

Seas: A Brief History (Annapolis, Md: U.S. Naval I nstitute Press, 1 972) . 

1 2. See Philip C. Jessup, The Law of Territorial Watm and Maritime Jurisdiction (New 

York: G.A. Jennings Co., Inc. , 1 927), p. 3 (hereinafter cited as Jessup) . 

1 3. Id., n. 3. 

14. Fulton, supra note 11, p. 3. Fulton points out that these claims were generally 

recognized by other states because the right to levy tribute was accompanied by the obligation 

43 
The Newport Papers 

to protect commerce in these closed seas from pirates and other predators who swarmed over 

the oceans during this period. !d. at 6-7. 

15. C. John Colombos, The Illtenlational Llw oj the Sea (London: Longmans Green & 

Co., Ltd., 7th ed., 1 967) , p. 49. 

16. Ibid. 

17. Fulton, supra note 11, at p. 338; see also id. , at pp. 1 05-108. 

1 8. Hugo Grotius, Mare Liberum (The Freedom ojthe Seas), Magoffin trans. (New York: 

Carnegie Endowment for Inte rnational Peace, 1916). 

1 9. Hugo Grotius, De Jure Belli ac Pads (The Llw oj War and Peace), Robert W. Kelsey 

trans. (Indianapolis and New York: Bobbs-Merrill Co., 1 925) . 

20. The debates between Grotius on the one hand and Welwood and Selden on the 

other, as well as summaries of other significant writings on the subject in the era, are detailed 

in Fulton, supra note 11, at pp. 338 if. The most influential of the books opposing the ideas 

of Mare Liberum was Selden's two-volume Mare Clausum, which was apparently completed 

in 1618 but was not published unti1 1 635. !d. , pp. 366-367. 

21. Until the twentieth century the term most frequently used to describe the territorial 

sea was "territorial waters." In the 1 930 League of Nations Conference on the Codification 

of International Law, the question of tenninology-"territorial waters" or " territorial 

sea"-was a subject of debate. The Conference decided to use the term "territorial sea" on 

the ground that it was more precise, since the term "territorial waters" was sometimes used 

to include both the territorial sea and internal waters . See League of Nations, Acts of the 

Conference for tile Codification oj Illtenlational Llw [1 930}, v. III., p. 202, reprinted in Shabtai 

Rosenne, League oj Nations Conference for the Codification oj Intenlatiollal Llw (Dobbs Ferry, 

N .Y. : Oceana Publications, Inc., 1 975), v. 4, p. 1 404 (cited hereinafter as Acts of the 

Conference, Rosenne) . Although the terms " territorial sea" and "territorial waters" continued to be used interchangeably in the literature and international fora, the I nternational 

Law Commission settled on the term "territorial sea" for its draft Convention. See Report 

of the International Law Commission covering the work of its fourth session, 1 952 Yearbook 

oj the Intemational Llw Commission, v. ii, p. 68. The same term was used in the 1 958 and 1 982 

Conventions. 

22. Fulton, supra note 11, at p. 549. 

23 . Fulton, supra note 11, at pp. 557-558. 

24. Ibid. 

25. !d. , p. 558. 

26. !d. , p. 558. 

27. !d. , p. 554-555. 

28. Fulton, supra note 11, Section II, Chapter 2, passim; D.P. O'Connell, TI,e Illtemational Llw ojthe Sea (Oxford: Clarendon Press, 1 982), v. 1, pp. 1 28- 1 29 (cited hereinafter as 

O'Connell) . With respect to the breadth of the territorial sea I say "generally" rather than 

"universally" adopted because even at its most general acceptance, the three-nautical-mile 

territorial sea was never universal. The Scandinavian states claimed territorial seas of four 

nautical miles (their marine league being four rather than three nautical miles) , and a number 

of states clung to their six-mile claims, with a few making claims to more extensive breadths, 

usually twelve miles . 

29. See, for example, O'Connell, supra note 28, at p. 1 52. 

30. Jessup, supra note 12, at p. 7. 

31. O'Connell, supra note 28, v. 1, p. 72. 

32. See Acts of the Confe rence, v. III, pp. 1 79 and 202, Rosenne, supra note 21, v. 4, 

pp. 1381 and 1 404. 

33. Report of the International Law Commission covering the work of its eighth 

session, 23 April-4 July 1 956, UN Doc. A/3159, Yearbook oj the Intemational Llw Commission 

1 956, v. II, p. 256, "law of the Sea," article 1. 

34. Convention on the Territorial Sea and Contiguous Zone, 29 April 1958, UN Treaty 

Series, v. 516, article 1 (cited hereinafter as the Territorial Sea Convention) . 

35. LOS Convention, supra note 2, article 2, para. 1. 

36. Jessup says that, "As a general principle, the right of innocent passage requires no 

supporting argument or citation of authority; it is fi rmly established in international law." 

Jessup, supra note 12, p. 1 20. 

37. See infra notes 77-79 and accompanying text. 

38. Jessup, supra note 12, at p. 77. 

44 
39. Church v. Hubbart, 2 Cranch 1 87, 1 L. Ed. 249 (1 804), and other cases cited inJessup, 

supra note 1 2, at p. 80. 

40. Jessup, supra note 1 2, at pp. 88-92. 

41 . Id., p. 91. 

42. For a detailed discussion of the controversies surrounding the United States 

Prohibition-Era "hovering acts, " see Jessup, supra note 1 2, pp. 241 -258. 

43. Convention on the Territorial Sea and Contiguous Zone, supra note 34, A rticle 24. 

44. See Fulton, supra note 11, Chapter V passim; Jessup, supra note 12, passim; O'-

Connell, supra note 28, at p. 155. 

45. Jessup, supra note 12, at p. 20; Fulton, supra note 11, Chapter V, passim. 

46. Fulton, supra note 11, at p. 694. See also Fulton, Chapter V, passim. 

47. Presidential Proclamation 2667, " Policy of the United States with Respect to the 

Natural Resources of the Subsoil and Sea Bed of the Continental Shelf," 28 September 1 945, 

U. S. Federal Register, v. 1 0, p. 1 2303, U. S. Code of Federal Regulations, 1 943-1948 Comp., 

v. 3, p. 67 (1 945) , reprinted in MaIjorie M. Whiteman, Digest of International Law 

(Washington: U.S. Government Printing Office, 1 9(5) , v. 4, pp. 756-757 (hereinafter cited 

as Whiteman) . 

48. White House Press Release of 30 September 1 945, reprinted in U.S. Department 

of State Bulletin, v. XIII, No. 327, pp. 484-485 (1 945) , reproduced in Whiteman, supra note 

47, pp. 757-758. 

49. Report of the I nternational Law Commission covering the work of its eighth 

session, 23 April-4 July 1 956, supra note 33, at p. 256. 

50. Territorial Sea Convention, supra note 34. 

51. Res. 1 307 (XIII), 10 December 1 958. 

52. See Whiteman, supra note 47, at pp. 1 19-137. 

53. See discussion in text supra, at notes 38-43. 

54. II Yearbook of the International Law Commission (1 956), supra note 33, at pp. 294-295 

(emphasis supplied). 

55. Ibid. 

56. Convention on the Continental Shelf, 29 April 1 958, UN Treaty Series, v. 499, 

p. 3 1 1, U.S.T., v. 15, p. 471, U.S. T.I. A.S. No. 5578, Article 2. 

57. Id., article 1. 

58. Fisheries Case (United Kingdom v. Nonvay), 1951 I.C.]. Reports, p. 1 1 6 (M erits). 

59. See examples discussed in W. Michael Reisman, " Straight Baselines in International 

Law: A Call for Reconsideration," Proceedings of tile 82nd Annual Meeting (1988) of the American 

Society of International Law (Washington: American Society of International Law, 1 990), 

p. 260; see also, Office of Ocean Affairs, U.S. Department of State, Limits in the Seas No. 

1 1 2: United States Responses to Excessive National Maritime Claims (12 March 1 992). 

60. Restatement (Third) , supra note 5. This opinion is also reflected in the joint 

statement of the U.S. and U.S.S.R. governments at the 1 989 Jackson Hole Summit 

Conference which included the statement that the two governments were guided by the 

provisions of the 1 982 Convention "which, with respect to traditional uses of the oceans, 

generally constitute international law and practice and balance fairly the interests of all States." 

U.S. Department of State, Department of State Bulletin, v. 89, fP. 25-26 (December 1989) . 

61. U.S. Department of the Navy, Office of the Chie of Naval Operations, Law of 

Naval Waifare (NWIP 1 0-2) (Washington: U.S. Government Printing Office, 1 955), section 

430a. (NWIP 1 0-2 is the predecessor manual to NWP-9 and is hereinafter cited as NWIP 

1 0-2) . I state "as a general rule" because, under certain circumstances, when a neutral state 

does not live up to its obligation to prevent hostile acts within its maritime territory by one 

belligerent, the opposing belligerent who is harnled by such acts may take armed self-help 

measures. O'Connell, supra note 28, at p. 111 7; H. Lauterpacht, Oppenheim 's International 

Law (London, New York, Toronto: Longmans, Green and Co., 7th ed, 1 952), v. 2, p. 695 

(hereinafter cited as Lauterpacht) ; U.S. Department of the Navy, Office of the Chief of Naval 

Operations, The Commander's Handbook on the Law of Naval Operations (NWP-9 (Rev. A)) 

(Washington: U.S. Government Printing Office, 1 989), para. 7.3.4.2 (hereinafter cited as 

NWP-9). 

62. Lauterpacht, supra note 61, p. (,73; Whiteman, supra note 47, at p. 1 78 and sources 

cited therein. The principle is codified in article 9 of Conventioll (XIII) Concerning the 

Rights and Duties of Neutral Powers in Naval War, 18 October 1 907, 36 Stat. 2415 (U.S.), 

1DO British & Foreign State Papers (1906-1907), pp. 448-454 (U.K.), reprinted at American 

Journal of International Law, v. 2 (Supp.), p. 202 (cited hereinafter as Hague XIII). 

45 
The Newport Papers 

63. Hague XIII, supra note 62. 

64. Dietrich Schindler, "Commentary [on Hague Convention XIIIJ ," in N. Ronzitti 

(ed.), The LAw of Naval Waifare: A Collection of Agreements and Documents with Commentaries 

(Dordrecht, Boston, London: Martinus NijholTPublishers, 1988), p. 21 1, at pp. 215, 221. 

65. Although Hague XIII does not include the words, "in its territorial waters," State 

practice suggests that this was the meaning intended by the Article. See H. Lauterpacht, supra 

note 6 1 , p. 746 and sources cited therein; Robert W. Tucker, U.S. Naval War College 

International Law Studies, The LAw of War and Neutrality at Sea (Washington: U.S. 

Government Printing Office, 1 957), p. 21 9, note 52 (cited hereinafter as Tucker). 

66. It is a disputed point as to whether this article applies only to stays in ports, roadsteads 

or territorial waters or also to mere passage through the territorial sea which lasts more than 

twenty-four hours. The Altmark incident, which will be discussed infra note 75, is illustrative 

of how this issue might arise. 

67. It is a disputed foint as to whether a neutral State may allow a warship to repair 

battle damage in a neutra port. See H.A. Smith, The LAw and Custom of the Sea (New York: 

Frederick A. Praeger, 2d ed., 1950), p. 154 (cited hereinafter as Smith) ; Colombos, supra 

note 15, pro 654-657. In any event, it is settled law that repairs which increase the fighting 

strength 0 the damaged warship are not permitted. See Harvard Research in I nternational 

Law, "Draft Convention on Rights and Duties of Neutral States in Naval and Aerial War," 

Comment on Articles 32-36, American Joumal of Intemational LAw, V. 33 (Supp.) p. 1 69, at 

p. 463 (1939). 

68. LOS Convention, supra note 2, article 8, para. 3. 

69. Elmar Rauch, The Protocol Additional to the Geneva Conventiom for the Protection of 

Victims of Intemational Armed Conflicts and the United Natiom Convention on the LAw of the Sea: 

Repercussiom on the LAw of Naval Waifare (Berlin: Duncker & Humblot, 1 984), p. 32, citing 

Hague XIII, NWIP 10-2, supra note 61, and the Soviet Naval International Law Manual 

(Moscow: 1 966). B oth of these manuals, of course, were published prior to the codification 

of the twelve-mile limit in the UN Law of the Sea Convention. (Dr. Rauch's monograph 

is cited hereinafter as Rauch.) 

70. NWP 9, supra note 61 , para. 7.3.4.2. 

71 . Canadian Forces, LAw of A rmed Conflict Manual (Second Draft) (Ottawa: undated), 

para. 1 509 (hereinafter cited as Canadian Manuan . It should be noted that as an interim 

measure until its draft manual is completed, the Canadian Armed Forces have promulgated 

MAOP-331 , Handbook on the LAw of Naval Operatiom, which, with a 16-page Canadian 

introduction, incorporates NWP 9 as Annex A. 

72. German Federal Ministry of Defense, Humanitarian LAw in Armed Conflicts-Manual 

(Bonn: 1 992, mimeo) , para. 1119 (hereinafter cited as German Manuan. 

73. Hague XIII, supra note 62, article 3 (release a prize captured within neutral's waters), 

article 8 (prevent fitting out or arming of warships) , article 25 (exercise surveillance to prevent 

violation of neutrality). 

74. See authorities cited in note 61 supra; see also Whiteman, supra note 47, pp. 1 90 ff. 

and sources cited therein. 

75. For a detailed examination of the Altmark incident, see Brunson MacChesney, U.S. 

Naval War College, Intemational LAw Situations and Documents, 1 956, Situation, Documents, and 

Commentary on Recent Developments in the Intemational LAw of the Sea (Washington: U.S. 

Government Printing Office, 1 957) , V. 51, pp. 3 If. (hereinafter cited as MacC hesney) . A 

revised version is printed in MacChesney, "The Altmark Incident and Modern Warfare­

'Innocent Passage' in Wartime and the Right of Belligerents to Use Force to Redress 

Neutrality Violations," Northwestem Univ. LAw Review, V. 52, p. 320 Quly-August 1 957) . See 

also, C.H.M. Waldock, "The Release of the Altmark Prisoners," British Yearbook of 

Intemational LAw, V. 24, p. 216 (1947) . 

76. See Winston S. Churchill, The Gathering Storm (Boston: Houghton Mifflin Co., 

1 948) , pp. 53 1 -532; see also H. A. Smith, supra note 67 at p. 153. 

77. Some States continue to assert that innocent passage of warships is subject to advance 

notification or consent. During UNCLOS Ill, a number of States introduced amendments 

to the draft Convention seeking to make this an explicit requirement. Of.ponents pointed 

out that adoption of such a requirement would be a "conference-breaker. ' The matter was 

finally resolved when the President of the Conference persuaded the proponents of the 

amendments to withdraw them in conjunction with his entering into the records of the 

Conference a statement that "their decision is without prejudice to the rights of coastal States 

to adopt measures to safeguard their security interests, in accordance with articles 19 and 25 

46 
of the draft Convention." United Nations, Third United Nations Conference on the Law of the 

Sea: Official Records (New York: United Nations, 1 984) , v. XVI, p. 132, para. 1 (cited 

hereinafter as UNCLOS O R). A number of States made statements at their signing or 

ratification of the Convention that the tenns of the Convention are without prejudice to 

their right to adopt measures regulating the passage of warships through their territorial seas. 

These States included Cape Verde, Democratic Yemen, Egypt, Finland, Iran, O man, 

Romania, Sao Tome and Principe, Sudan, Sweden, and Yemen. See Multilateral Treaties 

Deposited with the Secretary- General, ch. XXI.6 (ST /LEG/SER.E/8, pp. 780-794) . Several 

States made statements asserting that warships were entitled to exercise the right of innocent 

passage without notitying or obtaining the authorization of the coastal State. See statements 

in the exercise of the right of reply by France, Italy, United Kingdom, and the United States, 

UNCLOS III OR, supra, v. XVII, pp. 241 -244. 

78. Hague XIII, supra note 58, Article 10. MacChesney's examination of the meaning 

of "mere passage" provides the following insights: "The British who introduced the phrase 

in their draft of [Article 1 0] indicated that innocent passage in the peacetime sense was what 

they had in mind ... . [T]he peacetime analogy serves to indicate the type of passage that 

belligerents were willing to allow neutrals to grant. The type of passage contemplated is 

limited by two basic criteria. It must be an innocent passage for bona fide purposes of 

navigation rather than for escape or asylum. The passage must be innocent in the sense that 

it does not prejudice either the security interests of the coastal State, or the interests of the 

opposing belligerent in preventing passage beyond the type agreed to in Article X." 

MacChesney, supra note 75, pp. 1 8-19. 

79. Smith, supra note 67, p. 1 53; Tucker, supra note 65, p. 232; NWIP 1 0-2, supra note 

61 , section 443a, note 28; NWP 9, supra note 61, para. 7.3.4. 1. Canada's draft manual does 

not appear to recognize the right of neutral States to close their territorial seas to the passage 

of belligerent warships. CanaJian Manual, supra note 71 , para. 151 1 (3) . The G ennan Manual 

is ambiguous. In paragraph 1 130 of the revised draft (August 1991) it states, "The innocent 

passage through neutral territorial waters of warships belonging to the parties to the conflict 

shall be pennissible" (citing Hague XIII, Article 1 0), but in paragraph 1133 it states, "It is 

within the discretion of a neutral state to allow the passage of warships and prizes through 

neutral territorial waters" (also citing Hague XIII, Article to). German Manual, supra note 

72, pars. 1130 and 1133. 

80. W. Michael Reisman and William K. Lietzau, "Moving International Law from 

Theory to Practice: The Role of Military Manuals in Effectuating the Law of Anned 

Conflict, " in Robertson, supra note 9, p. 1 at p. 7. 

81. See authorities cited in note 79 supra. See also Rauch , supra note 69, at pp. 40-44. 

Rauch states that although the 1 907 Hague Conference took up the issue of wartime passage 

through neutral straits, it did not include an article in Hague XIII on the subject. But he also 

states that near unifonn practice since that time justifies the conclusion that "if the littoral 

States are neutral, innocent passage of belligerent warships through international straits in 

time of war may be interfered with only in exceptional cases." Id., p. 44. 

82. United Kingdom v. A lbania (Coifu Channel Case): Men"ts, Judgment, 1 949 I.C.]. 

Reports, p. 4. 

83. /d. , p. 28. 

84. Territorial Sea Convention, supra note 34, Article 16, para. 4. 

85. See authorities cited in Horace B. Robertson, Jr., "Passage Through Straits: A 

Right Preserved in the Third United Nations Conference on the Law of the Sea," Virginia 

Journal of International Law, v. 20, p. 801 at p. 803, note 7. 

86. Note that straits joining the high seas or an EEZ with the territorial sea of a foreign 

State are excluded by omission, although they were grouped with other straits used for 

international navigation in the 1 958 Territorial Sea Convention. Compare LOS Convention, 

supra note 2, article 37, with the Territorial Sea Convention, supra note 34, article 16, para. 4. 

The right of nonsuspendable innocent passage for such straits is preserved by article 45, para. 

2(b) of the LOS Convention, however. 

87. LOS Convention, supra note 2, article 35(c) . 

88. Id., article 36. 

89. /d. , article 38, para. 1. 

90. Although there is no explicit provision of the Convention so stating, the result 

follows from the fact that this category of straits is not included within either those govemed 

by the regime of transit passage or those governed by article 45 (nonsuspendable innocent 

passage) . 

47 
The Newport Papers 

9 1 . LOS Convention, supra note 2, Article 45, para. 1 (a). The most significant effect of 

the non-applicability of transit passage to this category of straits is that it closes them to 

overflight by aircraft, and submarines must navigate on the surface and show their flag. Of 

course, if the passage seaward of the island is truly "of similar convenience with respect to 

navigational and hydrographical characteristics," the requirement to use such an alternate 

passage rather than the strait is of little operational significance. 

92. LOS Convention, supra note 2, article 38, para. 2 (emphasis supplied) . 

93. Id., article 38, para. 1 (c). 

94. Civil aircraft are required to observe the rules; State aircraft, which are not bound 

by the I CAO rules, " will normally comply with such safety measures and will at al times 

operate with due regard for the safety of navigation." LOS Convention, supra note 2, article 

39, para. 3(a) . 

95. Id. , article 42, para. t. 

96. !d. , article 42, para. 2. 

97. Id. , article 42, para. 5. See also, statement of U.K. representative explaining the 

meaning of the proposal introduced by his delegation which eventually became article 42. 

UNCLOS JII OR, supra note 77, v. II, Second Committee, 11th Meeting, p. 1 25, para. 23. 

See also, LOS Convention, supra note 2, article 304. 

98. See John Norton Moore, "The Regime of Straits and the Third United Nations 

Conference on the Law of the Sea," AmericanJoumal ifIntemational LAw, v. 74, p. 77 at p. 95 

(1 980) ; William T. Burke, "Submerged Passage through Straits: Interpretations of the 

Proposed Law of the Sea Treaty Text," Wasilington LAw Review, v. 52, p. 1 93 (1 977); 

Robertson, supra note 85, pp. 843-846. 

99. Rauch, supra note 69, at pp. 45-46 (footnotes omitted). 

1 00. NWP 9, supra note 6 1 , para. 7.3.5. 

l Ot. Canadian Manual, supra note 71, para. 151 1 (2). A footnote to the paragraph 

identifies those straits to which the right of transit applies, following the criteria laid down 

in Part JII of the LOS Convention. 

1 02. See note 79 supra. 

1 03. LOS Convention, supra note 2, article 35(c) (emphasis supplied) . 

1 04. See Convention regarding the Regime of the Straits, Montreux, 20 July 1 936, 

League of Nations Treaty Series, v. 1 73, p. 213, reprinted in Americatl Joumal if Intemalional 

LAw, v. 31 (Supp.), p. 1 (1937). 

1 05. See Boundary Treaty between the Argentine Republic and Chile, 23 July 1 88 1 , 

Consolidated Treaty Series (Parry), v. 1 59, p. 45. Article 5 thereof provides, in English 

translation, "Magellan'S Straits are neutralized forever, and free navigation is guaranteed to 

the flags of aU nations." In the Argentina-Chile Treaty of Peace and Friendship of 1 984, the 

two countries reaffirmed that the Straits of Magellan "are perpetually neutralized and freedom 

of navigation is assured to ships of all flags," 29 November 1 984, English translation reprinted 

in International Legal Materials, v. 24, p. 11 ( 1 985). 

1 06. See Treaty for the Redemption of the Sound Dues between Denmark and a number 

of other European States, 14 March 1 857, reprinted in English in Consolidated Treaty Series 

(Parry) , v. 1 1 6, p. 357. The United States concluded a separate bilateral treaty with Denmark 

discontinuing Sound Dues for ships flying the U.S. flag. Convention for the Discontinuance 

of the Sound Dues, 11 April 1 857, U.S. Statutes at Large, v. 11, p. 719, reprinted in English 

in Parry, v. 116, p. 465. It should be noted that the ICJ is currently seised of a case concerning 

navigation through the Belts. 

1 07. See Convention Relating to the Non-Fortification and Neutralization of the Aaland 

Islands, 20 October 1 921, League of Nations Treaty Series, v. 9, p. 213, reprinted in A merican 

Joumal if Intemalio;lal LAw, v. 17 (Supp.), p. 1 ( 1 923). 

1 08. Rauch, supra note 69, p. 53. the two authorities cited in opposition are John Norton 

Moore in "The Regime of Straits and the Third United Nations Conference on the Law of 

the Sea," note 98 supra, at p. 1 11, and Pjotr Barabolja in Modemes Seevolkmecht, published 

by the Academy of Science of the USSR, translated into German by Elmar Rauch, v. 1, 

(Baden-Baden, 1 978) , p. 230. Professor Moore was Vice Chairman of the U.S. delegation 

to UNCLOS III; General Barabolja was a senior member of the Soviet delegation. 

109. NWP 9, supra note 61, para. 7.3.5. 

1 10. Montreux Convention, supra note 104, articles 19 and 20; see also, Rauch, supra 

note 69, p. 5 t. 

11 t. See text supra notes 53-55. 

48 
112. Territorial Sea Convention, supra note 34, article 24; LOS Convention, supra note 2, 

article 33. 

1 13. See text, supra at notes 54 and 55. 

114. Supra at note 46. 

1 15. Rauch, supra note 69, p. 33. 

1 16. LOS Convention, supra note 21 , article 56. 

1 17. See Oxman, supra note 8, at p. 848; see also Horace B. Robertson, Jr. , "Navigation 

in the Exclusive Economic Zone," VirginiaJoumal ojIntemational LAw, v. 24, at pp. 874-875, 

and note 52. 

118. For a full discussion of this issue, which has been frequently debated in the legal 

literature, see Barbara Kwiatkowska, The 200 Mile Exclusive Economic Zone in the New LAw of 

the..5ea (Dordrecht/Boston/London: Martinus Nijhoff Publishers, 1989), pp. 230-235 (cited 

hereinafter as Kwiatkowska). 

119. Elliot Richardson, "Power, Mobility and the Law of the Sea," Foreign AjJairs, Spring 

1 980, p. 902 at p. 916 (emphasis in original). 

1 20. Professor Oxman concludes that the addition of the phrase, "other internationally 

lawful uses, etc .... " is the "functional substitute for the ' inter alia' in article 87." Oxman, 

supra note 8, at p. 837. 

121. !d. at pp. 837-838. 

1 22. See Oxman, supra note 8. 

1 23. Rauch, supra note 69, at p. 34, quoting from Sveriges Flotta, v. 70, pp. 8-1 1 (1 974) 

(emphasis supplied). 

1 24. See, for example, UNCLOS III OR, supra note 77, v. XVII, p. 54, para. 224. 

125. Rauch, supra note 69, p. 36. 

1 26. Id., p. 37. 

1 27. !d. , quoting from James Brown Scott, TI,e Proceedings of the Hague Peace Conferences, 

The Conference oj 1 907 (New York: Oxford University Press, 1 920), v. I, p. 288, Report of 

the Third Commission to the Conference, meeting of9 October 1 907 (Annexes), at p. 290. 

1 28 Id., p. 38. 

1 29. Statement of the delegate of Brazil, Plenary, 1 87th Meeting, 7 December 1 982, 

UNCLOS III OR, supra note 77, v. XVII, p. 40, para. 28. 

130. Statement of the representative of Cape Verde, 1 88th Meeting, Plenary, UNCLOS 

III OR, supra note 77, v. XVII, p. 62, para. 124. 

131. Statement of the representative of Uruguay, 1 92nd Meeting, Plenary, UNCLOS 

III OR, supra note 77, v. XVII, p. 1 20, para. 55. 

132. Italy, Statement made in the exercise of the right of reply, 7 March 1 983, UNCLOS 

III OR, supra note 77, v. XVII, pp. 241 -242; France, Statement made in the exercise of the 

right of reply, 12 May 1 983, id. , p. 241 ; United States of America, Statement made in the 

exercise of the right of reply, 8 March 1 983, id. , pp. 243-244. 

133. T.T.B. Koh, in Jon M. Van Dyke (ed.), Consensus and Confrontation: The United 

States and the LAw oj the Sea Convention (A Workshop of the Law of the Sea Institute, Honolulu, 

Hawaii, January 9-13, 1 984) (Honolulu: LOS Institute, 1 985), p. 304. 

1 34. See Kwiatkowska, supra note 1 18, p. 21 1. 

1 35. See Kwiatkowska, id. , note 1 18, p. 203. 

136. Carladian Manual, supra note 71, para. 703. 

137. German Manual, supra note 72, para. 1 011. The German Manual adds a cautionary 

note that, "The rights of coastal and archipelagic states must, however, be taken into due 

consideration." Ibid. A similar cautionary statement is carried in a footnote in the Canadian 

Manual. Supra note 71, para. 703, note 1. 

138. NWP 9, supra note 61, para. 7.3. 

1 39. LOS Convention, supra note 2, article 56, para. 3. 

1 40. LOS Convention, supra note 2, article 76. 

141. Id. , article 77. 

142. !d. , article 80. 

1 43. Id. , article 78. 

1 44. Id., article 60(6). 

1 45. !d., article 80 (incorporating article 60 mutatis m utandis). 

1 46. Convention on the Continental Shelf, 29 April 1 958, U.N. Treaty Series, v. 499, 

p. 31 1, article 2. 

1 47. LOS Convention, supra note 2, article 77. 

49 
The Newport Papers 

1 48. See Tullio Treves, "Military Installations, Structures, and Devices on the Seabed, " 

A mericanJoumal of Int'l lAw, v. 74, p. 808, at p. 834 (cited hereinafter as Treves) . 

1 49. See id. at p. 839 

150. !d. , pp. 840-846. 

151. An alternative argument legitimizing the employment of weapons or other military 

devices on the seabed of the EEZ and continental shelf could be made on the basis that 

military devices, such as mines and detection or surveilance devices are not "installations or 

structures." Some weight is added to this argument by the replacement of the nomenclature 

"installations and devices" in the 1 958 Continental Shelf Convention, supra note 1 46, 

article 5, by "installations and structures" in the 1 982 Convention. See Treves, supra note 

1 48, p. 841 . A second alternative basis for the same conclusion, at least for detection and 

surveillance devices, can be found in the explicit provisions in articles 58 and 79 recognizing 

the right of al States to lay and maintain submarine cables. Id., pp. 842-843. 

152. Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and 

Under Water, S August 1 963, U.N. Treaty Series, v. 480, p. 43. 

153. Treaty on the Prohibition of the Emplacement of Nuclear Weapons and Other 

Weapons of Mass Destruction on the Seabed and the Ocean Floor and in the Subsoil Thereof, 

11 February 1 97 1 , U.N. Treaty Series, v. 955, p. 1 15. 

154. Treaty for the Prohibition of Nuclear Weapons in Latin America, with Additional 

Protocols I and 11, 14 February 1 967, U.N. Treaty Series, v. 634, p. 28I. 

155. U.S. Department of Defense, Office of the Assistant Secretary of Defense (International Security Affairs) , Maritime Claims Reference Manual (Washington: U.S. Dept. of 

Defense, 1989), v. 2, p. 232 (for sale by the National Technical Information Service as DoD 

2005.1-M). Although Indonesia is the paradigm case of an archipelagic State, the archipelagic 

waters claimed by a number of other States enclose ocean areas of substantial dimensions. 

Examples include (with their approximate North-South and East-West dimensions in 

nautical miles): Cape Verde (144 x 1 30), Fiji (300 x 300), Papua-New Guinea (840 x 600) , 

Solomons (500 x 1 20), Vanuatu (420 x 1 00) . Ibid. , passim. The Republic of the Philippines 

is not included in this list because its archipelagic baselines, which are drawn in a manner 

inconsistent with the LOS Convention, are not generally recognized as valid. 

156. Rauch, supra note 69, at p. 33. 

1 57. NWP 9, supra note 61, para. 7.3.6. The Annotated version ofNWP-9 footnotes this 

statement to Hague XIII, articles 1, 2 and 5, and NWIP 1 0-2, para. 441 , both of which 

address neutral waters in the context of the territorial sea and internal waters only. 

1 58. Canadian Manual, supra note 71, para. 1 509. 

1 59. !d. , para. 703. See also para. 706, entitled "Passage Through Neutral Waters, " which 

provides in part that, "Neutral waters are the internal waters and the territorial seas, including 

straits overlapped by such waters, of states which are not participants in a conflict. " 

160. Telephone conversation between the author and Commander Wil

am Fenrick of 

the Canadian Ministry of Defense on 4 February 1 992. 

161 . German Manual, su ra note 72, para. 1010 (emphasis supplied) . 

1 62. See, for example, id. , paras. 1 121-1 1 23, 1 130-1133. It should be noted, however, 

that paragraph 1012 of the German Manual states that archipelagic States exercise full 

sovereignty within their archipelagic waters, adding that, with respect to acts of naval warfare, 

"The rights of ... archipelagic states must ... be taken into due consideration." 

1 63. See text at notes 73-79 supra. 

1 64. See supra, notes 75 and 76 and accompanying text. 

165. Hague XIII, supra note 62, article 13. 

166. Id., article 25. The Canadian draft manual recognizes the difficulty posed for the 

neutral, stating, "There is a significant possibility that weak neutral archipelagic states wil be 

unable to ensure that strong belligerents wil not use their archipelagic waters as a base of 

operations. H MC ships should not, however, presume that enemy warships present in neutral 

archipelagic waters are using those waters as a base of operations and are hence subject to 

attack unless the enemy warships pose an immediate and substantial threat or unless guidance 

on the subject has been received from a higher command." Canadian Manual, supra note 

71, para. 706(6). 

167. See supra, notes 7 7-79 and accompanying text for discussion of the neutral's rights 

in this regard. 

1 68. NWP 9, supra note 61 , para. 7.3.6. 

1 69. LOS Convention, supra note 2, article 44, as incorporated mutatis mutandis into the 

archipelagic-State Part of the Convention by article 54. 

50 
1 70. Id., article 53, para. 4. 

171. Id. , para. 12. 

172. Some publicists have tried to draw a distinction between the two concepts on the 

basis that in Part III (straits), the term "freedom of navigation and overflight" is used (article 

38, para. 2) , whereas in Part IV (archipelagic States) , the expression " right of archipelagic sea 

lanes passage" is used (article 53, para. 2). See, for example, Nugroho Wisnumurti, "Archipelagic Waters and Archipelagic Sea Lanes," in Jon M. Van Dyke, Lewis Alexander, and 

Joseph R. Morgan (eds.) , International Navigation: Rocks and Shoals Ahead? (A Workshop of 

the Law of the Sea Institute, 1 986) (Honolulu: Law of the Sea Institute, 1 988), p. 1 98, at 

pp. 204-205. In view of the near identity of the provisions in the other articles of the two 

Parts as welJ as incorporation of key provisions of the transit-passage regime by reference 

mutatis mutandis into Part IV (article 5 4), it is ifficult to conclude that this ifference in terms 

has any legal significance. 

1 73. LOS Convention, supra note 2, article 53, para . 3. 

1 74. Id. , article 54. 

175. NWP 9, supra note 61, para. 7.3.6. 

176. Canadian Manual, supra note 71, para. 151 1 (2). 

177. NWP 9, supra note 61 , para. 7.3.5. 

178. There are, of course, exceptions such as the Singapore-Malacca Strait. 

179. The Singapore-Malacca Strait is an exception here also. 

1 80. Rear Admiral Bruce A. Harlow, JAGC, USN, "The Law of Neutrality at Sea for 

the 80's and Beyond," A Paper Prepared for the Hawaii Regional Meeting of the American 

Society of lnternational Law, 16-18 February 1 983, reproduced in UCLA Padfic Basin Law 

Review, v. 3, p. 42 at pp. 53-54. Although Admiral Harlow uses the term "neutral waters" 

in the quoted paragraph, he is referring throughout to archipelagic waters. Despite his 

reservations and uncertainties about treating archipelagic waters the same as the territorial 

sea, Admiral Harlow seems to come down in favor of that solution as more consistent with 

the expectations of neutral archipelagic States and the opportunity for the progressive 

development of international law applicable to armed conflict provided that a belligerent's 

right to self-help is recognized in the event the neutral archipelagic State is unwilling or 

unable to enforce the neutrality of its archipelagic waters. 

181. In response to comments on his paper, "Archipelagic Waters and Archipelagic Sea 

Lanes, " supra note 172, Dr. Wisnumurti, who was the Director of Legal and Treaty Af

airs 

of the Indonesian Department of Foreign Affairs, posed a hypothetical situation which 

appeared to assume that archipelagic sea-lanes would be open to belligerent warships in time 

of armed hostilities. It would be presumptuous, however, to interpret such an informal remark 

as an expression of the government of lndonesia's position on this issue. 

1 82. LOS Convention, supra note 2, article 1 (1). 

1 83. Id. , article 135. 

1 84. Restatement (Third), supra note 5, section 523, Reporters' Notes, para. 1. 

185. See interim mining laws enacted by France, Germany, Japan, the former U.S.S.R., 

and the United Kingdom reprinted in International Legal Materials at v. 21, p. 808 (1982), 

v. 20, p. 393 (1981), v. 22, p. 102 (1 983), v. 21, p. 551 (1 982), and v. 20, p. 1717 (1981) 

respectively. The United States act is at Tide 30, United States Code, sections 1 401 et seq. 

1 86. LOS Convention, supra note 2, article 137, para. 1. Restatement (Third), supra note 

60, section 523, para. (l ) (a). 

187. LOS Convention, supra note 2, article 87, para. 2 (emphasis supplied). 

1 88. 18 October 1 907 , 37 U.S. Statutes at Large, p. 2332, Bevans, v. 1, p. 699. Although 

the Convention, by its own terms, covers only "automatic contact mines," it seems to be 

generalJy accepted that the principles stated therein are applicable mutatis mutandis to other 

forms of naval mines developed since Hague VIII was adopted in 1907 . See, e.g., Tucker, 

supra note 65, p. 304, note 49; Rauch, supra note 69, p. 1 16; NWP 9, supra note 61, para. 

9.2. 1; Cana ian Manual, supra note 71, ara. 7 10. 

1 89. Howard S. Levie, Mine Wa!1arr at Sea (Dordrecht/Boston/London: Martinus 

Nijhoff Publishers, 1 992) (cited hereinafter as Levie) . 

190. !d. , p. 36. 

191. Id. , pp. 37-42. 

1 92. Sir Ernest Satow, Proceedings of the Conference, v. 1, pp. 274-275, as quoted in 

Levie, supra note 1 89, p. 41. Sir Ernest added that Great Britain regarded the Convention as 

only a partial codification of the law of mine warfare and that it would not "be pennissible 

to presume the legitimacy of an action for the mere reason that this Convention has not 

51 
The Newport Papers 

prohibited it. " ld., pp. 41 -42. Great Britain filed a reselVation to the same effect. See Dietrich 

Schindler and Tiri Toman (eds.), The Laws of Armed Conflicts: A Collection of Conventions, 

Resolutions ani Other Documents (Dordrecht: Martinus Nijhoff Publishers, 3rd ed. 1 988), 

p. 808. 

1 93. Levie, supra note 1 89'IP. 42-44. 

194. As quoted by Levie, i . , at p. 44. 

195. Levie, supra note 1 89, p. 1 77. 

1 96. NWP 9 defines armed and controlled mines as follows: "Armed mines are either 

emplaced with all safety devices withdrawn or are armed following emplacement, so as to 

detonate when preset parameters (if any) are satisfied. Controlled mines (including mines 

possessing remote control activation devices) have no destructive capability until affirmatively 

activated by some form of controlled arming order (whereupon they become armed mines) ." 

NWP 9, supra note 61, para. 9.2.1. 

1 97. The annotated version of NWP 9 cites the Coifu Channel case, supra note 82, for 

this proposition. 

1 98. Impliedly this includes neutral archipelagic waters. See NWP-9, supra note 61 , para. 

7.3.6. 

1 99. Canadian Manual, supra note 71 , para. 710. 

200. ld., para. 703. 

201 . ld. , para. 1 509. 

202. German Manual, supra note 72, para. 1 039. 

203. German Manual, supra note 72, para . 1 010. As previously noted, paragraph 1012 of 

the German Manual equates neutral or nonbelligerent EEZs with high seas insofar as acts of 

naval warfare are concerned. 

204. NWP 9, supra note 61, para. 9.2.3, subpara. 6. Note that the German Draft Manual 

states that there is no right of protective mining of straits in times of crisis but is silent as to 

the mining of straits in armed conflict. German Manual, supra note 72, para. 1 041 (emphasis 

supplied). 

205. Levie, supra note 1 89, p. 1 78. 

206. See Reisman and Lietzau, supra note 80, as to the shaping of customary international 

law through publication of national manuals. 

207. The "other applicable rules" are those applicable to the conduct of hostilities 

regardless of where the hostile acts take plact'", such as rules regarding prohibitions on specific 

weapons or means of warfare, targeting, treatment of civilian persons and objects, etc. 

208. The prohibition against erecting any apparatus to communicate with belligerent 

forces at sea, contained in article 5 of Hague VIII, has not been included because it is deemed 

obsolete. 

209. Hague XIII uses the term "mere passage." I have used "innocent passage" as more 

consonant with modem usage and also because it is more clearly defined in international law . 

See note 78 supra, where it is suggested that the two terms are legally equivalent. 

210. This provision adopts a position as to which practice is divided. See supra note 67. 

52 
THE AUTHOR 

Horace B. Robertson, Jr., is a retired rear admiral, Judge Advocate General's 

Corps, Navy. He is currently Professor of Law (Emeritus) at Duke University 

School of Law. He received a B.S. degree from the U.S. Naval Academy in 

1945, a J.D. from Georgetown Law School in 1953, and an M.S. from George 

Washington University in 1968. He graduated from the College of Naval 

Warfare of the U.S. Naval War College in 1968, receiving the Stephen B. Luce 

Award. 

Prior to becoming a judge advocate in 1955, Rear Admiral Robertson served 

as a surface line officer in destroyers and amphibious ships. Subsequently, he 

served in varied legal billets, including Special Counsel to the Secretary of the 

Navy, Special Counsel to the Chief of Naval Operations, Deputy Judge Advocate General, and Judge Advocate General of the Navy. Upon retirement in 

1976 he was appointed Professor of Law at Duke University School of Law 

where he taught torts and various international law courses until becoming 

emeritus in 1990. During the 1991-1992 academic year Professor Robertson 

occupied the Charles H. Stockton Chair of International Law at the U.S. Naval 

War College.