Boma 215

In this instance, a close ally’s rights are directly threatened by the North Korean
claims. The North Korean military boundary zone represents renewed pressure
on the South’s efforts to maintain the lifeline to the Northwest Islands and could
ultimately serve as a pretext for an attack upon the resupply vessels and the islands
themselves.

While not particularly significant in terms of population, natural resources or
potential economic development, these islands are of incalculable political
significance to both countries. These outposts are the exposed nerves of South
Korean sovereignty and territorial integrity.** By asserting navigational freedoms
within the North Korean east coast military boundary zone, we not only uphold
important international principles which are essential to our own security, but
also voluntarily shoulder the burden with our steadfast friends in the South, who
must, of necessity, regularly run the gauntlet on the west coast. This should
alleviate significant pressure on the South. Similarly, Japan has chafed at the North
Korean actions and would undoubtedly welcome reasonable efforts to check the
bullying thrust of these claims, the effects of which fall heavily on them. The
reaction from the mainland is difficult to gauge, but China is unlikely to protest
this effort, due to estrangement from Kim II-Sung’s regime. While no reaction
is the expected and desirable response, the Chinese will see this as a sign of
renewed U.S. resolve in the region. The Soviets would probably align verbally
with P’yongyang.

General Recommendations Regarding the FON Program

In this writer’s opinion, the following issues dealing with the general conduct
of the FON Program should be addressed to ensure the continuing vitality of
this essential component of national defense.

Emphasis on Assertion vice Provocation. The purpose of the Freedom of
Navigation Program is to conduct peaceful challenges to unlawful encroach-
ments upon the maritime commons by coastal nations and to stem the attempted
seaward expansion of national sovereignty. While these challenges, of necessity,
normally involve Department of Defense vessels or aircraft in most instances, it
is essential that operational planners understand and maintain the true innocent
and unprovocative nature of these operations.

Prevailing domestic and international public perceptions of the FON Program.
seem to be that the program is usually employed as a subterfuge for setting up
engagement scenarios with nations that have aroused our ire over unrelated
matters. Although understandable, these conclusions are dead wrong and entirely
at odds with the true spirit and nature of this program. ,


Terry 371

Application of Regional Agreements

In addition to the regime established by the United Nations Charter, the
United States and Panama are bound by the Charter of the Organization of
American States (OAS),'® the Inter-American Treaty of Reciprocal Assistance
(Rio Treaty)"? and the 1977 Panama Canal Treaty.”? Our Latin neighbors are
particularly sensitive to the provisions of the Rio and OAS agreements because
of their view that the United States violated provisions of those agreements
during the years 1981-84 when the United States was involved in laying mines
in Nicaraguan ports, and in participating in the planning and direction of attacks
on Nicaraguan ports, oil installations and naval bases.

The International Court of Justice (I.CJ.) ruled in the case of Nicaragua v.
U.S”! that the support given by the United States to the military and paramilitary
activities of the Contras by financial support, training, supply of weapons,
intelligence, and logistics support, constituted a clear breach of the principles of
non-intervention under provisions of the OAS and Rio accords. The I.CJ.
farther found in that case that the actions of Nicaragua against its neighbors did
not, as the United States maintained, amount to an armed attack which could
have authorized the collective countermeasures taken by the United States. In
making these findings, the I.CJ. ruled that the U.S. actions in Nicaragua had
resulted in an infringement of territorial sovereignty under both agreements, as
well as the U.N. Charter.” It is small wonder, then, that the Latin nations
expressed concern over the U.S. intervention in Panama.

OAS Charter

The prohibitions against the use of force in the OAS Charter are phrased in
language that is even more categorical than that of Article 2(4) of the U.N.
Charter, reflecting the long and painful history of the Latin American States.
Article 13 establishes, for example: “No State or group of States has the right to
intervene, directly or indirectly, for any reason whatever, in the internal or
external affairs of any other State. The foregoing principle prohibits not only
armed force but also any other form of interference or attempted threat against
the personality of the State or against its political, economic and social elements.”
Article 20 is equally clear with respect to territorial integrity: “The territory of
a State is inviolable; it may not be the object, even temporarily, of military
occupation or of other measures of force taken by another State, directly or
indirectly, on any grounds whatsoever.”

The one exception to these comprehensive prohibitions, and the one relied
upon by the United States in taking action to protect U.S. citizens and interests
in Panama, is Article 22, which provides: “Measures adopted for the maintenance
of peace and security in accordance with existing treaties do not constitute a


Terry 535

by Iraq, there would have been no significant violation of the Kuwaiti environ-
ment.

The Geneva Conventions of 1949 merely built upon the requirements and
prohibitions of the 1907 conference at The Hague. Article 50 of Geneva
Convention I (Wounded and Sick in the Field), for example, provides that it
shall be a grave breach to commit extensive destruction and appropriation of
property that is not justified by military necessity and is carried out unlawfully
and wantonly. Article 51 of Geneva Convention II (Wounded and Sick at Sea)
merely restates this rule. The Fourth Geneva Convention (Civilians Conven-
tion), while restating in Article 147 the general protections for the environment
seen in the Hague Rules, also places significant requirements upon the occupying
power. Article 53 provides that “any destruction by the Occupying Power of
real or personal property belonging individually or collectively to private persons,
or to the State, or to other public authorities, or to social or cooperative
organizations, is prohibited, except where such destruction is rendered absolutely
necessary by military operations.” It can certainly be argued that Kuwait’s
territorial seas, bays, beaches, and oil fields were subjected to wanton, unlawful
destruction unjustified by military necessity.

The importance of the Geneva Conventions of 1949 to preservation of the
environment extends far beyond the provisions of the articles themselves. An
enforcement regime represented in articles common to each of the four Con-
ventions requires that grave breaches by each of the Contracting Parties be
identified and addressed.® Moreover, another article common to each requires
penal sanctions.’ That article, the comerstone of the enforcement system,
obligates each contracting party to: enact implementing legislation; search for
persons alleged to have committed breaches of the Conventions; and bring such
persons before its own courts or, if it prefers, hand them over for trial to another
State party concerned. Article 146 of Geneva Convention IV provides further
that the accused persons shall benefit from proper trial and defense no less
favorable than the safeguards provided by Article 105 (and those following) of
the 1949 Geneva Convention Relative to the Treatment of Prisoners of War.
When these provisions addressing violations by individuals are considered in
conjunction with the requirement in Article 3 of Hague Convention IV (that
violating States are liable to pay compensation to the injured State), a very
comprehensive scheme, and one appropriate for addressing recent events in the
Gulf, is apparent.®

Proscription of Environmental Modification

Although the United States renounced the use of climate modification
techniques in July 1972, it was not until the entry into force of the 1977
Convention on the Prohibition of Military or Any Other Hostile Use of


PART TWO

OCEANS LAW


244 Readings on International Law

The Freedom of Navigation Program

Following World War II, the United States began implementing an informal
program to protect and promote the “rights and freedoms of navigation and
overflight guaranteed to all nations under international law.” Objectionable
maritime claims worldwide included unrecognized assertions of historic waters,
improperly drawn baselines for measuring maritime claims, excessive territorial
sea demands imposing impermissible restrictions on the innocent passage of
military and commercial vessels, and other maritime claims excessive or improper
under international law.‘ In 1979, the Carter administration formally established
the Freedom of Navigation program, and it soon became an integral part of
American foreign policy.

According to a 1979 communication from the Commander in Chief, U.S.
Atlantic Command (CincLant) to naval units of that fleet, the Freedom of
Navigation program was initiated because the U.S. government was concerned
that many countries were beginning to assert jurisdictional boundaries that far
exceeded traditional claims.? The FON program was a way of letting these
countries know that the United States would not tolerate claims having an
adverse impact on maritime freedom of movement. The memorandum noted
that “in the future, there will be planned exercises, transits and overflights by
Naval and Air Forces for the purposes of asserting U.S. rights in the face of
excessive claims.” U.S. maritime policy would now:

ear d q q



564 Readings on international Law

9. Soviet Ocean Development, 314-317 Committee Print, Senate Committee on Commerce, 94th
Congres, 2nd Session, pursuant to S, Res, 222 (1976).
0. Supra n. 8 at 325.

in Supra n. 5 at 150.

12, SAUNDERS, THE SOVIET NAVY 283 (1958).

13, GORSHKOV, SEA POWER OF THE STATE 312 (1976) ( Dep't of the Navy trans.),

14, BRZEZINSKI, THE FRAGILE BLOSSOM 101 (1972).

15, KAHN, THE EMERGING JAPANESE SUPERSTATE 165 (1970); Marks, The Acquisition of Nuclear
Weapons by Japan, Military Review 48 (March 1973); Wakaizumi, Japan Beyond 1970, Foreign Affairs 517
(April 1969).

16. Supra n. 3 at 511.

17. Langerand Moorsteen, The U.S. Japanese Military Alliance: Japanese Perceptions and the Prospective Impact
of Evolving U.S. Military Doctrines and Technologies, 18 Rand Research Paper P-5393 (Santa Monica, Cal.: Rand).

18, Zumwalt and Bagley, Strategic Deterioration in the Pacific: The Dilemma for the U.S. and Japan, Pacific
Community 125 (anuary 1978).

19. Barnds, The United States, Japan and the Korean Peninsula, Pacific Community 76 (October 1976).

20. MOMOT, supra n. 1 at 17.


Joyner 441

the Harvard Group’s conception of piracy introduced the notion of “private
ends” motivation as a necessary element for an act of piracy to occur.

Significantly, this precondition subsequently was codified into the 1958
Geneva Convention on the High Seas. Article 15(1)(a) of that instrument
stipulates piracy to be: “any illegal acts of violence, detention, or any act of
depredation committed for private ends by the crew or the passengers ofa private
ship or a private aircraft and directed on the high seas, against another ship or
aircraft or against persons or property on board such ship or aircraft.”*> According
to this provision, then, piracy as a crime was not limited to robbery, plunder or
pillage at sea. So long as: an act of violence occurred on the high seas or outside
the jurisdiction of any coastal State; it was committed for private, as opposed to
public reasons; and, it was performed by a private vessel against another
vessel—then, the criteria for international piracy would be met in full.

Though admittedly slightly abridged, it bears noting that the 1958 Geneva
definition of piracy was inserted practically verbatim into the 1982 LOS Con-
vention as Article 101:

Piracy consists of any of the following acts:

(a) any illegal acts of violence or detention, or any act of depredation committed
for private ends by the crew or the passengers of a private ship or a private aircraft,
and directed:

(i) on the high seas, against another ship or aircraft, or against persons or
property on board such ship or aircraft;

(ii) against a ship, aircraft, persons or property in a place outside the jurisdiction
of any State;
(b) any act of voluntary participation in the operation of ship or an aircraft with
knowledge of facts making it a pirate ship or aircraft;
(c) any act of inciting or of intentionally facilitating an act described in subparagraph

@) or ().*

The traditional legal character and criteria of piracy as international crime thus
was preserved for its application to contemporary acts and incidents.

The relevance which piracy’s conceptual evolution as a normative considera-
tion under international law holds for acts of offShore maritime terrorism is clear:
Such latter depredations fail to meet the definitional test of piracy on at least four
counts. First, although admittedly earmarked as illegal violence or detention, an
incident involving maritime terrorism is not likely to be perpetrated for “private
ends.” Rather the motive most likely is apt to be politically inspired, thereby
rendering the action more suitably subsumed under international law as a facet
of war, belligerency, or ageression.”” Second, an act of maritime terrorism taken
aboard or against a stationary platform literally would not involve a vessel-to-
vessel encounter. (Mobile rigs might be considered vessels under admiralty law.)
Rather, a vessel-to-fixed facility incident would transpire. Third, the high seas


Booth 109

their national homelands, But the more feelings about the ownership of the sea
grow, the more will the two sensitivities converge. Together, relative freedom
of movement across the sea and growing national sensitivities about the sea will
provide future opportunities for dramatic naval diplomacy.

Anns control. The immediate future is not propitious for the development of
arms control, given the present chilly relations between the superpowers and the
widespread belief that the next 5 years are likely to be more dangerous than any
period since 1962. The prospects would seem to be particularly bleak in northern
waters, for even examinations of the subject in calmer times concluded that there
was little promise of mutually agreeable schemes.!”

Despite such gloomy but realistic prognostications, the present might be a
good time to start rethinking one form of naval arms control, namely strategic
ASW. First, it will be argued that creeping jurisdiction together with various
economic and strategic considerations makes this a more promising idea than
hitherto. Secondly, experience suggests that when a chilly period gives way to a
relaxation of tensions, then this may be a productive time for arms control
proposals, and new ideas might be more effective than warmed-up old ones.
Thirdly, it is important from all points of view to try to slow down the arms race,
and it is not too soon to be working to head off decisions that might be made
around 1990 for the weapons of the next century. Among these decisions, those
affecting strategic deterrence will remain paramount.

Controlling ASW would be a tricky business. It has been discussed occasional-
ly in the past, but has made no practical progress. It remains a topic on the arms
control agenda, but a low priority. In its latest manifestation it was suggested as
a possible subject for SALT III, if SALT II comes to pass. Despite present
problems and prognostications there are some positive aspects to the control of
strategic ASW. It is an idea whose time might yet come, for it is an idea in which
arms control and long-term law of the sea developments overlap and promise to
enhance the stability of deterrence.

Support for controlling strategic ASW has been based on two main arguments.
First, it is sometimes claimed that ASW is “destabilizing.” Strategic ASW
threatens the invulnerability of ballistic-missile firing submarines, and it is
undesirable if either adversary believes that any element of its second-strike forces
could be neutralized by a preemptive attack. Such a belief encourages worst-case
analysts to credit the adversary with first-strike intentions. This generates anxieties
that in a crisis might produce pressure to move first, in order to preempt the
putative preempter. Secondly, the control of strategic ASW has been thought
desirable because its steady progress fuels continued research and development
to improve submarines and their missile systems. This produces a costly and
self-defeating spiral, which results in no more security, only greater weapons
sophistication, cost, and political suspicion. For these reasons, control of strategic
ASW should slow down the arms race and enhance mutual deterrence.


402 Readings on International Law

(1890s) produced a number of theories. Cranial measures of captured terrorists
were taken and a connection between terrorism and lunar phases was detected.
Cesare Lombroso, a distinguished criminologist of his day, found both medical
and climatological explanations. “Terrorism, like pellagra and some other dis-
eases, was caused by certain vitamin deficiencies, hence its prevalence among
maize-eating people of Southern Europe.” He also found that the further north
one went, the less terrorism there was.®

A serious attempt to define terrorism was made in 1937 when the League of
Nations formulated the Convention for the Prevention and Punishment of
Terrorism. The Convention, signed by 24 States, was ratified by only one and
never actually came into force. It was a direct response to the assassination of
King Alexander I of Yugoslavia and the President of the Council of the French
Republic in 1934 by persons who would now be described as Yugoslav freedom
fighters or terrorists, depending upon one’s political stance. The drafters con-
cerned themselves with the problem as they saw it, namely, preparation of a
convention to prohibit any form of planning or execution of terrorist outrages
upon the life or liberty of persons taking part in the work of “foreign public
authorities and services.” The Convention was intended to suppress acts of
terrorism having an international character only. “Acts of terrorism,” as set forth
in Article I, are “criminal acts directed against a State and intended or calculated
to create a state of terror in the minds of particular persons or the general public.””

It is interesting to note that the League’s successor, the United Nations, has
been unable to agree on a definition of the term and has become diverted by an
inclusive discussion of the causes and motives of terrorists.®

With the exception of a number of bilateral agreements for the exchange of
intelligence and technical assistance, the international response to terrorism.
continues to be relatively weak. The United Nations, in the Declaration of
Principles of International Law Concerning Friendly Relations and Cooperation
Among States, adopted without vote by the General Assembly on 24 October
1970, asserts at one point that:

Every State has the duty to refrain from organizing, instigating, assisting, or
participating in acts of civil strife or terrorist acts in another State or acquiescing
in organized activity within its territory directed towards the commission of such
acts when the acts referred to in the present paragraph involve a threat or use of
force,

However, this same declaration clouds the issue by the greater emphasis on
“the principle of equal rights and self-determination of peoples.” The language
employed in this regard implies that it is the overriding duty of all States to assist
groups struggling for the realization of these rights in every way possible. For
example:


Robertson 11

As stated earlier, international law is principally of European origin. The newly
emerging States, mainly former African and Asian colonies of the European
powers, have found it difficult to accept a system that they had no part in creating,
and particularly one that, in the view of many of them, was shaped in such a way
as to keep them in a position of inequality. They see the codification process as
a means of influencing contemporary international law in a way more favorable
to their interests. Newly emerging States have formed themselves into the
so-called “Group of 77” (now with over a hundred members), which uses its
large bloc-voting strength in the United Nations General Assembly and inter-
national conferences to exercise enormous influence.

The Institutionalization of International Law. A third current trend is the
proliferation of intergovernmental (international) institutions. Not only are they
instrumental in creating and implementing broad segments of international law,
but also they have spawned a special body of international law—the law of
international institutions. This consists of the constitutions and internal regula~
tions of those bodies as well as of the treaties and agreements that provide the
framework for their relations with host governments and with other States in
whose territory they operate.

The preeminent international institution, of course, is the United Nations. Its
functions are so broad and the reach of its activities is so all-encompassing that a
whole new body of international law has grown up around its practices and
procedures. It is not, however, the only international institution that affects the
growth of international law. A whole host of international organizations create
their own bodies of specialized law. Some of these entities are functional, such
as the International Maritime Organization (instrumental in developing interna-
tional rules and regulations governing safety at sea, ship construction standards,
and the protection of the marine environment from pollution from ships) and
the International Civil Aviation Organization, which is even more pervasive
within its functional field,

Other international organizations are regional, such as the European Com-
munity, established by the Treaty of Rome. The E.C. has its own legislative,
executive, and judicial branches, which in some cases have the authority to
override national decisions. The activities of this organization are so pervasive
with respect to member States that some international scholars are beginning to
wonder when it will have assumed so many aspects of Statehood that its members
can no longer be considered States and the Community itself will have become
one super-State.

The Enforcement of International Law. At the outset we observed that one of
the principal criticisms of international law is that there is no means of enforcing
sanctions against those who breach it. Without retreating ftom the rejoinder


572 Readings on International Law

theater nuclear balance is much more complex than that, and it is the post-treaty
correlation of forces that is relevant to our analysis, not what went before. Clearly,
the new balance will be less amenable to simplistic comparisons than the one
which preceded it. We are no longer dealing with convenient entities like
missiles, with known characteristics and high probabilities of survival and
penetration; we are dealing instead with dual-capable systems and with delicate
assumptions about tasking, basing, and vulnerability to offensive and defensive
attrition. The new nuclear correlation will be more ambiguous than it predeces-
sor and will offer less scope for impressing (or intimidating) neighboring States.

We may be certain, however, that the Soviet General Staff has done its
homework, and in all necessary detail. Such calculations are the bread and butter
of Soviet military decision making. We can be confident too that on the basis of
systems deployed, on reinforcement rates, on relative vulnerability (the scarcity
and exposure of NATO bases compares unfavorably with Soviet options for
dispersal and defense in depth), on the relative strengths of the opposing
air-defense systems, the correlation remains firmly in their favor. But our concern
must be less with any theoretical pre-war force comparisons than with the effect
of the Treaty on Soviet ability at the outset of war to alter the theater nuclear
equation decisively in their favor. The means to this objective is, as we have seen,
the conventional air operation, and the INF Treaty affects it not one jot. To the
extent that NATO intermediate range missiles may have been targeted against
components of the air operation, its prospects for success may even have been
enhanced,

This article seeks to evaluate the INF Treaty in terms of its impact on the
military strategies of both sides. These strategies are not symmetrical; nuclear
weapons have a markedly different role to play in each of them. The Treaty has
not had an equal effect on the two parties. For all the claims to the contrary, the
Treaty has reduced the capability of NATO nuclear forces—central to the
strategy of flexible response—and has weakened the credibility of their use. Given.
the ultimate dependence of flexible response on the nuclear threat, we must
conclude that the Soviet Union has dealt effectively with NATO’s strategic
doctrine. In contrast, the Treaty has done nothing to restrict the centerpiece of
Soviet strategy, the conventional forces designed to support the theater strategic
operation, and the associated capabilities to counter the Western nuclear threat.
‘Whatever the merits of the Treaty in a wider context, it must be judged to have
failed on the crucial test of its contribution to the security of NATO. We have
the right to expect a sophisticated understanding of strategic issues from Western
leaders. We must hope that future arms reduction measures will aim at the right
target and address the real issue that divides Europe—the conventional military
power of the Soviet Union and its allies.


406 Readings on International Law

Common use of terms is a prerequisite for expanding knowledge. With this as a
goal, the following definition is proferred:”>

Terrorism is a purposeful human political activity directed primarily toward
creation of a general climate of fear designed to influence, in ways desired by the
perpetrator, other human beings and, through them, some course of events.

Terrorism poses an unacceptable affront to the principles on which an
organized society rests. It is expressed through the employment of various
criminal acts calculated to harm human life, property or other interests. Terrorists
seek to arrogate to themselves and use the powers normally reserved to the State.

If this is an acceptable definition, types of terrorism need to be differentiated.
The term international terrorism is frequently mentioned in the literature. This
should be clearly distinguished from transnational terrorism. International terrorism
ought to be employed carefully and applied to groups or individuals controlled by
a sovereign State”° The term should not imply the existence of a “terrorist
international’”” in the sense of a central body coordinating the activities of
terrorists in different countries. No evidence in this regard has been discovered*

Transnational terrorism is carried out by basically autonomous nonstate actors,
whether or not they enjoy some degree of support from sympathetic States.”
The difficulty surrounding an accurate definition of terrorism presents itself again
in dealing with topologies.

To find a solution to this dilemma we would best concern ourselves with the
nature of the act as opposed to the nature of the group. A transnational terrorist
act, then, may be viewed as one:

1. committed or taking effect outside the territory of a State of which the
alleged offender is a national; and
2. committed or takes effect:
a, outside the territory of the State against which the act is directed, or
b. within the territory of the State against which the act is directed and
the alleged offender knows or has reason to know that the instrumental target
against whom the act is directed is not a national of the State? or
c. the instrumental target is a national of the primary target State but is
a different nationality from that of the offender; and
3. is intended to damage the interests of a State or an international
intergovernmental organization;*! and
4, is committed neither by nor against a member of the armed forces of a
State in the course of military hostilities.

Before ending this definitional attempt, two concepts should be briefly
addressed, namely; nonterritorial terrorism and. domestic terrorism. The term nonter-
ritorial came about because researchers found other terminology lacked the
needed precision to provide effective analysis. Nonterritorial terrorism is defined


332 Readings on International Law

Third, force may of course be used first when necessary for law enforcement in
internal and territorial waters and occasionally in international waters.

The Law of Self-Defense

The law of self-defense is like the rule parents use to restrain violence between.
their kids, What parent has not asked, “Who started it?” when confronted with
a fight. Kids learn early that they need especially good justification for hitting
first.

In our own national practice of international law, we need to go back only
150 years for a classic statement of the law of self-defense. During an 1837
rebellion against British rule in Canada, the insurgents secured recruits, weapons
and supplies from across the border in New York and used an island on the
American side to train recruits. Asa result, an armed band working for the British
crossed the border from Canada to attack a small steamer, the Caroline, used by
the insurgents to transport recruits, weapons and supplies to Canada. The
attacking party killed several Americans, set fire to the Caroline and sent her over
Niagara Falls.

The British claimed “self-defense” as a justification for using force on
American soil. Secretary of State Daniel Webster admitted that self-defense could
sometimes justify an attack across a border, but insisted that the United States
Government itself had remained neutral even if American soil was used to aid
the insurgents. He concluded that there was no necessity for self-defense in this
case. Webster’s description of the law of self-defense has become a classic:

The only exception to the “inviolable character of the territory of independent
states” is self-defense, and that should be confined to cases in which the “necessity
of that self-defense is instant, overwhelming and leaving no choice of means and
no moment for deliberation.” An attack on another state’s territory “justified by
the necessity of self-defense must be limited by that necessity and kept clearly
within i.”*

The British did not disagree with this statement of the rule and finally offered
an apology, while insisting that their intervention was within the rule. Webster
did not require more.

By 1946, Webster’s statement had become so widely accepted that the
Nuremberg War Crimes Tribunal said it reflected general international law. In
rejecting a plea of self-defense by German leaders to a charge involving first use
of force, the Tribunal adopted Webster’s words in the Caroline case as its own.
Relying also on a 1928 treaty which renounced recourse to war as an instrument
of foreign policy, the Tribunal convicted Germans of the war crime of initiating
aggression for invading Norway. The Germans had attempted to justify their


526 Readings on International Law

that it conflicts with the terms of the international guarantees. In other words,
the Swedish approach is not to give foreign powers any droit de regard toward
Swedish affairs.

In peacetime, Sweden is therefore guided by what is appropriate in order to
safeguard our neutrality in time of war. Because of this aim, our security policy
must be conducted with precision, firmness and consistency. That is, however,
different from legally binding obligations.

Inow turn to the policy of neutrality, its scope, implications and opportunities.

Sweden’s policy of neutrality can trace its roots to 1814, the year Sweden was
last engaged in acts of war. Jean Baptiste Bernadotte, a former marshal in
Napoleon’s army, realized when he was King Karl XIV Johan of Sweden that
the Napoleonic wars created a quagmire in which there were only losers. In
order for his kingdom to prosper, he therefore moved to stay out of the
vicissitudes of alliance-building on the European continent. What he started has
little by little evolved into Sweden’s policy of neutrality. That endeavor has
obviously been highly successful, since we find ourselves in the unique position
of not having been at war for the last 175 years.

Adhering to the policy of neutrality, Sweden has been saved from involvement
in two world wars. Obviously it was not neutrality alone that saved us, but also
strategic and political circumstances beyond our control. Certainly one com-
ponent was luck. No one can deny, however, that a deliberate policy of neutrality
was one factor enabling Sweden to avoid participation in these two major
conflicts.

The evolution of the Swedish policy of neutrality over a long period of time
has won the support of the Swedish people. The policy’s credibility has been
based on its consistency, a national consensus on its aims, broad political majorities
supporting the means by which to achieve those aims, and a strong national
defense. It is an exaggeration to say that Swedes regard the policy of neutrality
as a flak jacket, but the vast majority would probably agree to liken it to a safety
belt. Our policy of neutrality is deeply rooted in the minds of all citizens, and
indeed, whoever electioneered from a political platform proposing a change of
this basic policy would certainly lose in the elections.

Asan interesting example of where another nation went, I would like to briefly
sketch the path of the neutralistic tendencies in the United States. This nation
‘was equally fed up with the European quarrels of the Napoleonic era. Asa result,
the United States turned its back on that continent in order to expand within its
own borders and within the Western hemisphere (in accordance with the
Monroe Doctrine).

A century later, at the outbreak of World War I in 1914, President Wilson
proclaimed a policy of strict neutrality. In 1917 neutrality was abandoned, the
main reason probably being the German strategy of unrestricted submarine

warfare.


140 Readings on International Law

— Against submarines:

1. Track the unfriendly submarine with active sonar.

2. Use “Uncle Joe” procedures with underwater devices to signal the submarine
to surface.

3. Attack with torpedoes.

These examples only suggest some possible actions which could be included
in an enforcement ladder. The point is, specific enforcement instructions from.
the national command authorities should be promulgated to the battle group
commander when the cordon sanitaire is declared. Escalation along the ladder,
however, should be closely controlled by the NCA in view of the extreme
sensitivity of the operation. The object, of course, is to use the minimum amount
of force necessary to compel the Soviets to vacate the cordoned area, in order to
minimize the risk of escalatory retaliation.

Promulgation of PIM. Argument Against Cordon Sanitaire: Establishing a
cordon sanitaire around a moving battle group would require providing the
group’s PIM to the Soviets. This would, of course, provide them with valuable
targeting data by itself, depending on the size of the declared cordon sanitaire.
While the exact position of the carrier within the cordon sanitaire could not be
precisely pinpointed (as would be the case with a tattletale), the general move-
ments of the battle group would be known days, at least hours, in advance. This
intelligence would allow the Soviets many possibilities to plan a preemptive
strike. Based on the PIM information Soviet Ocean Surveillance System (SOSS)
satellite sensors could be positioned to maintain general locating data on the battle
group. Also, submarines could be positioned ahead of the cordon sanitaire and
quietly let the battle group steam past, by their slow speed greatly increasing their
chances of remaining undetected. Targeting data on the carrier could be
broadcast by the subs when obtained, and a coordinated strike could then be
launched.

Counter Arguments: While the intelligence value of PIM information
provided to the Soviets is significant, it certainly could not compare with the
continuous stream of extremely accurate position information that would be
provided by a tattletale unit in the absence of a cordon sanitaire. In the example
discussed above, Soviet submarines would have to penetrate the battle group
ASW screen to be able to provide accurate targeting data on the carrier. The
submarines would also have to break radio silence to transmit the targeting
information, making them very vulnerable to detection and prosecution as
intruders.

The PIM information could also be used as a deception device by the United
States. The battle group could operate in a relatively small portion of the cordon
sanitaire area furthest from the major threat axis. Or, the battle group could


Gilchrist 135

Cordon Sanitaire and International Law

Arguments Against Cordon Sanitaire: Freedom of the high seas is the
overriding principle of law arguing against the legality of cordon sanitaire. Article
Il of the 1958 Geneva Convention on the High Seas, to which the United States
is a party, states in part:

The high seas being open to all nations, no State may validly purport to subject
any part of them to its sovereignty. Freedom of the high seas . . . comprises, inter
alia, both for coastal and non-coastal states:

(1) Freedom of navigation [surface and subsurface]. . . .

(4) Freedom to fly over the high seas.
‘These freedoms, and others which are recognized by the general principles of
international law, shall be exercised by all States with reasonable regard to the
interest of other States in their exercise of the freedom of the high seas.*

The establishment of a cordon sanitaire on the high seas would clearly interfere
with the Soviet Union’s freedoms of navigation and overflight. As such, a Soviet
protest to such actions would be on solid legal grounds, and most of the
international community would likely agree with the Soviet position.

A further legal complication regarding cordon sanitaire pertains to its enfor-
cement once it is declared. If the Soviet Union refused to evacuate the declared
zone, Virtually any measure used by the United States to force compliance would
violate the bilateral U.S.-Soviet Agreement for the Prevention of Incidents On
and Over the High Seas, signed in 1972. This agreement specifically prohibits
such aggressive actions as shouldering, illumination, buzzing by aircraft, training
of weapons, etc.> Thus, a U.S. effort to enforce a cordon sanitaire through any
of the above methods, or even more drastic action would probably entail a
violation of the bilateral agreement.

Arguments For: Customary international law recognizes a nation’s rights of
self-defense in the face of an imminent threat to its security. Within the
constraints of the dual requirements of necessity and proportionality in relation
to the severity of the threat, a State may take action to preserve its security. It
could be argued that the threat to the security of the United States (that is, the
possible loss of a carrier battle group) embodied by the presence of a Soviet
tattletale or group of combatants would justify the imposition of a cordon
sanitaire and the use of force, ifnecessary, to enforce it. Indeed, a cordon sanitaire
would satisfy the test of proportionality much better than an attack without
warning to forcibly remove a tattletale.

The United States has used the principle of self-defense on several occasions
to exert limited jurisdiction over areas of the high seas. Before direct U.S.
involvement in World War II, President Roosevelt established “Maritime
Control Areas” outside U.S. territorial waters. Since that time several “defensive


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by William S. Hein & Co., Inc.

Library of Congress Cataloging-in-Publication Data

Readings on International Law from the Naval War College Review
1978-1994 / edited by John Norton Moore and Robert F. Turner.
p. 625 cm. — (International law studies ; v. 68)
Includes index.
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(U.S.)_ I. Moore, John Norton, 1937- ._ II. Turner, Robert F.
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341 s—dc20
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CIP


Booth 105

Because of the relative advantages presently and foreseeably envisaged for the
United States in ASW techniques, the Soviet Union might be expected to see
some advantages in a more restrictive seabed regime. But the problem for the
Soviet Union in this respect is geographical rather than legal. Again, its chief
objections, seabed restrictions in the north might derive from wider considera-
tions, particularly the boost such a development would give to creeping juris-
diction elsewhere. However, any restrictions on NATO activity in northern
waters would be attractive to some Soviet naval strategists.

The EEZs. Although UNCLOS III was particularly concerned about restric-
tions on naval movement through straits, a more serious long-term concern for
the naval powers is the possibility of restrictions on the passage of warships
through EEZs. This would threaten naval activity in extensive areas that were
formerly “high seas” and so “free” for transit and demonstration. For the
immediate future warships have transit and other rights (by default, not designa-
tion) but it can be expected that constraints will accumulate because of territorial
impulses on the part of coastal powers, beginning in the reasonable guise of traffic
and pollution control. Some coastal States have already shown their sensitivity
to foreign warships and intelligence gatherers.

Various restrictions can be envisaged. They include a requirement for prior
notification, limitations on numbers in passage at any one time, a ban on certain
types (intelligence gatherers or nuclear-powered ships), movement in designated.
sealanes or restrictions on “military” activities while in passage (no exercises, or
ASW activity, or aircraft flights). Restrictions on the passage of submarines in
EEZs would be difficult to inspect and enforce, but claims to restrict them might
nevertheless be made. If this were to become widespread, it could be embarrass-
ing for the naval powers to ignore them. The discovery of a foreign submarine
through accident or other means in areas claimed by the coastal State would entail
diplomatic costs. Other possible restrictions include a maritime version of air
defense identification zones. Pollution-conscious Canada has already taken steps
in this direction for the control ofmerchant ships.” Such procedures will probably
spread. Will they also come to encompass warships?

The possibility of the growth of restrictions such as those suggested above
would threaten the mobility of warships and therefore would appear to under-
mine their usefulness as instruments of foreign policy in peacetime. Normal
deployment patterns would be interrupted, crisis deployments would be
hindered, and some scientific work with military value might be prohibited.

Because of the configuration of the lands and seas in northern waters, such
changes would affect the Soviet Union more than NATO. There is a “NATO”
EEZ barrier across the access routes of the Soviet Northern Fleet. In contrast,
USS. and other NATO forces would have unrestricted access to most normal
operating areas, with the exception of parts of the Barents Sea. A more restrictive
EEZ regime would be a major impediment for the Soviet Union’s oceanic navy.


Farrell 453

Further complicating the decision process are the concerns for success,
proportionality and discrimination. Actions undertaken more as a reflex action
than as thoughtful calculation may lead to long-term consequences which will
impact adversely on the nation or its people. Escalatory acts on the part of the
terrorists against innocent Americans may well be the result of any action. Other
groups may act in sympathy with the “injured” terrorists and either attack U.S.
assets or those of our allies. Therefore, when policymakers think in terms of
success the thought processes must take a long-term view and be willing to
endure potential consequences and ramifications.

Having suffered a series of terrorist attacks over a period of years, there is
concern that a nation may respond to a particular act and that the response may
be geared to the emotion and force built up during years of doing little or nothing.
As such the response may not be proportionate to the act perpetrated. A large
nation such as the United States must demonstrate the restraint demanded of a
superpower. While some may applaud the forceful actions of the small embattled.
nation of Israel, our position on the world’s stage does not allow us that solution.
Additionally, we must be sure to discriminate between the terrorist and those
among whom he may take refuge. Every effort must be taken to insure that
noncombatants are left uninjured, or in the worst case that their casualties are
kept to a minimum. At some point the President or the Secretary of State may
need to address a concerned nation or a skeptical Congress justifying a response
to a terrorist act. Not all will agree to the arguments proffered in terms of degree
of success, justification or scale (such as the U.S. Government's forcing of the
Egyptian aircraft carrying PLO terrorists to land on Italian soil). But any rationale
that has as its basis plausible moral considerations coupled with a credible plan of
action will at a minimum be condoned, if not fully approved.

Fully understanding just what terrorism is—and what it is not—is an initial
step in the development of a government’s policy of response. This done, a
democratic nation is capable of determining the extent of the threat to itself and
to similar sovereignties around the globe. It is upon this that the particulars of
any action are built. Forming essential supports for its foundation are the legal,
political and moral elements considered by the decision makers. When the
leadership goes before the people and presents its justification for actions against
terrorism, these three pillars will be evaluated to some degree of sophistication
by all. While there will not be complete agreement on all aspects of the act there
has to be acceptance that the evidence was credible and the response was
fundamentally moral. The latter should be able to withstand the rigors of debate.
If not, the terrorists will have scored the victory they sought.

Lieutenant Colonel Farrell was serving on the faculty of the Naval War College when this article
was first published.


54 Readings on International Law

Effective Power Process. This part of the article will sketch the policy science
model and will place Janis’ book, and other recent studies related to oceanic law,
in that context to illustrate how the system works and its potential usefulness for
the naval decisionmaker, be he professional military man or legal specialist.
Concentration will be made on the effective power process, as distinguished from
the larger social process model. References, except to the recent studies reviewed
in this article and occasionally, to policy science materials, will be minimal, but
the reader’s attention is invited to the more comprehensive analyses available
elsewhere, upon which this section of the article is based.”

Social Process. Policy scientists begin their consideration of problems in the
context of the social process, that ongoing interaction of persons and other
participants (nations, navies, etc.) in an increasingly interdependent series of
communities, starting with a world community and working down through a
series of the interlocked, interdependent and interacting communities (regional
organizations such as NATO, the EEC, etc.; nations, state and local governments)
to the smallest (the family or the tribe). The social process may be divided into
eight value processes: power, the giving and receiving of support in government,
politics, and law; wealth, the production and distribution of goods and services,
and consumption; enlightenment, the gathering, processing and dissemination
of information; skill, the opportunity to acquire and exercise capability in
vocation, professions and other social activities; well-being, synonymous with
safety, health and comfort; affection, personal intimacy, friendship and loyalty;
respect, personal or ascriptive recognition or worth; rectitude, participation in
forming and applying norms or responsible conduct. Through the methodology
of claim, participants (individuals, navies, nations) act in various ways to optimize
these values as goals through various institutions that affect resources (often
known as “base values,” “base” being employed in the same sense of source of
resources as the original connotation of “naval base”). These eight value processes
“have no magical quality and are chosen for their convenience in [the] analysis
of [the] social process,” To put theory into realities for the naval commander:
Morale is a constant problem and a sought-after goal aboard ship. Examined in
the policy-science context, values for enhancing morale might include: proper
administrative or disciplinary measures to punish shipboard theft as corrosive of
morale (power); encouragement of advancement through successful completion
of rate examinations, thereby increasing sailors’ pay and prestige (wealth, en-
lightenment, respect); ordering men to leadership school (enlightenment, skill,
rectitude); encouraging leave and liberty, commensurate with the needs of the
service (well-being in the sense of improved mental health from a “change of
pace”); affection, developed, through renewal of shoreside friendships.

These goals are, of course, achieved through a continuum of time, space and
other dimensions known to policy scientists as phase analysis, which will be


364 Readings on International Law

18, Id, at 4, col. 4 (Text of State Department Report).
19. Id. at 5, col. 1; id,, Jan. 6, 1986, at 1, col. 4.

20, Id. at 6, col. 1.

21. Id. at 6, col. 2.

22, Id, at 6, col. 1; Mar. 23, 1986, at 1, col. 5.

23, Id. at 6, col. 1 (Text of State Department Report).
24, Id, Jan. 16, 1986, at 8, col. 1.

25, Id., Jan. 9, 1986, at 1, col. 6.

26, Id.,Jan. 17, 1986, at 1, col. 4.

27. Id, Jan. 16, 1986, at 1, col. 5.
28,
29.
30.
31
32.

. Id, at 8, col. 2.
d., Jan. 17, 1986, at 1, col. 4,
. Id, at 1, col. 4.
. Id, Mar. 19, 1986, at 1, col. 5; Mar. 20, 1986, at 7, col. 1; Mar. 22, 1986, at 3, col. 2.
. Id., Mar, 25, 1986, at 1, col. 6. See text of Secretary Weinberger’s statement at id., Mar. 25, 1986, at
10, col. 1.

33, Id., Mar, 26, 1986, at 8, col. 1; Mar. 27, 1986, at 8, col. 1.

34, LEHMAN, COMMAND OF THE SEAS 370 (1988).

35. N.Y. Times, Mar. 28, 1986, at 1, col. 2.

36, Id, at 12, col. 4.

37. Id., Mat, 29, 1986, at 3, col. 1.

38. Id, Apr. 6, 1986, at 1, col. 5-6.

39. Id. a 1, col. 6.

40. Id., Apr. 7, 1986, at 6, col. 2.

41. Id., Apr. 6 1986, at 1, col. 5-6.

42, Id. at 19, col. 1.

43. Id., Apr. 10, 1986, at 1, col. 6; id., Apr. 10, 1986, at 22, col. 1.

44, Id. at 1, col. 6.

45. Id., Apr. 15, 1986, at 1, col. 5, See transcript of Weinberger/Shultz press conference, id., Apr. 15,
1986, at 13, col. 1.

46, Td, at 1, col. 5;
Apr. 15, 1986, at 1, col. 3.

47. Id., Apt. 16, 1986, at 20, col. 5 (cemarks of State Department spokesman Bernard Kalb). See also
LEHMAN, COMMAND OF THE SEAS 371-374 (1988).

48, N.Y. Times, Apr. 16, 1986, at 15, col. 3.

49, Id. at 1, col. 5.

50. Id. at 1, col. 6; Apr. 16, 1986, at 15, col. 3; April 17, 1986, at 22, col. 1 (report that SAMs supplied
to Libya by Soviet Union auto-detonate in air, so unlikely to explode on ground impact).

51. Id., Apr. 15, 1986, at 10, col. 1. See also transcript of Press Secretary Speakes’ press conference, id.
Apr. 15, 1986, at 13, col. 1. See also President Reagan’s Address to American Business Conference, id., Apr.
16, 1986, at 20, col. 1.

52, Id., Apt. 15, 1986, at 1, col 3,

53, Id.

54, Id. at 10, col. 1.

55, Id. at 11, col. 3.

56, Id,

57. “Fear of a return of Executive authority like that exercised by the Royal Governors or by the King
had been ever present in the States from the beginning of the Revolution.” WARREN, THE MAKING OF
‘THE CONSTITUTION 173 (1928).

58. CORWIN, THE PRESIDENT: OFFICE AND POWERS 1787-1984, 255 (1984).

59. See U.S. vs, Curtiss-Wright Export Corp., 299 U.S. 304 (1936).

60. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 634-635 (1952) (Jackson, J., concurring).

61. FARRAND, I RECORDS OF THE FEDERAL CONVENTION OF 1787, 292 (1911) (“RECORDS”).

62. Lofgren, War-Making Under the Constitution: The Original Understanding,* 81 Yale L. J. 672, 680 (1972).

63, “Helvidius” Number 1 (24 August 1793), 15 THE PAPERS OF JAMES MADISON 71 (Mason, Rutland
and Sisson ed. 1985),

64. 7 WORKS OF ALEXANDER HAMILTON 746-747 (Hamilton, ed, 1857).

65. CASTREN, THE PRESENT LAW OF WAR NEUTRALITY 96 (1954).

66, ADAMS PAPERS, Massachusetts Historical Society microfilm (as quoted in Softer, The Presidency, War
and Foreign Affairs: Practice Under the Framers, 40 L. & Cont. Prob. 12, 19-20 (1976)). See also SOFAER, WAR,
FOREIGN AFFAIRS AND CONSTITUTIONAL POWER: THE ORIGINS, 139-161 (1976).

Apr. 16, 1986, at 15, col. 3 (temarks of Vice Admiral Frank Kelso, Jr., USN); id.,



220 Readings on International Law

and specifically established geographical limits solely with respect to the territory
ceded.

Even though the western limit of Alaska as defined in the 1867 Convention
was not clearly identified as a boundary line, at least one authoritative commen-
tator so described it just after the turn of the century;® at a minimum, it certainly
performed the pragmatic function of a line of allocation, a cartographic device
used to simplify description of the territory conveyed: i.e., Russia ceded to the
United States everything it had east of the line and nothing west of the line.”
Since in 1867 the concept of dominion over adjacent continental shelf and seas
beyond one marine league from the appurtenant coast was not recognized by
international law, it is not surprising that no provision for a maritime boundary
‘was made in the original Convention of Cession.

During the ensuing years, and especially in recent decades, the line of
allocation came, perhaps inevitably, to be understood by many as the practical
equivalent of a boundary, i.e., as a line of division for maritime jurisdiction as
well as land territory. Indeed, by the time the negotiations leading to the recent
agreement were underway, the U.S. had come to regard the 1867 Convention
line as the maritime boundary, and with respect to fisheries matters sought Soviet
agreement to this position.® Prior to the 1970s, the question of whether there
existed a maritime boundary was principally of theoretical significance, since up
to that time both the U.S. and U.S.S.R. had claimed only the customary three
nautical mile territorial sea (with twelve nautical mile fishing jurisdiction from
1964), and the U.S.S.R. had claimed a territorial sea out to twelve nautical miles.
But in that decade, following the lengthy negotiations which resulted in the 1982
United Nations Convention on the Law of the Sea, the world community
recognized as a new principle of international law the concept of the Exclusive
Economic Zone (EEZ). The Soviet Union initiated the regulation of a two
hundred nautical mile fisheries zone in 1978 (and of its EEZ in 1976, pursuant
to which it assumed the right to regulate fishing, marine scientific research,
marine pollution, and certain other activities within its zone, which extends
seaward as far as two hundred nautical miles beyond its territorial sea). The United
States established a two hundred nautical mile fisheries management zone in 1977
(declaring its EEZ in 1983, and its own twelve nautical mile territorial sea in
1988). As a result of both nations having established these opposed fisheries
regimes, it became evident that in a number of places the zone claimed by one
side overlapped that claimed by the other. Consequently, the two governments
agreed to discuss the exact location of the 1867 line. Thus, it was the immediate
problem of fisheries enforcement that led in the late 1970s to the convening of
negotiations which ultimately resulted in the 1990 Agreement on the Maritime
Boundary?

Early in these discussions it became apparent that the two sides had traditionally
employed different cartographic techniques to depict the 1867 Convention line.


138 Readings on International Law

effect, thereby minimizing its vulnerability to a preemptive attack during the
period of highest threat.

It seems obvious that the less prepared the Soviets are to launch a preemptive
strike against the battle group, the less likely it is that they would do so in response
to a U.S. declaration of a cordon sanitaire. As Admiral Kidd pointed out in a
conversation with this author, if insufficient numbers of surface and submarine
antiship missile platforms were in position to participate in the strike, or if too
few Backfire or Badger aircraft could be brought to bear (due to availability or
range limitations), the Soviet Union would be reluctant to preempt through a
hastily coordinated strike with what their historically cautious civil leadership
would consider insufficient forces. Also, although there is not necessarily a direct
connection between a war ashore and one at sea, Soviet leaders would probably
be reluctant to commence hostilities by preempting naval targets until their were
fully ready to launch their land campaign. Thus, through proper timing based
onaccurate intelligence of Soviet land, sea, and air activity, a U.S. cordon sanitaire
declaration could catch the Soviets not optimally prepared to attack, and thereby
increase the likelihood of their acceptance of the cordon sanitaire.

Another means of reducing the likelihood of Soviet preemption after the
declaration ofa cordon sanitaire is to make the conditions of the cordon sanitaire
appeal to the Soviets’ own interests as much as possible. In the declaration message
to the Soviets, stress should be laid on the advantages to both sides to be gained
from the stabilizing effects of the separation of forces entailed in the cordon
sanitaire. If the geography involved in the specific situation permits and the
immediate mission of the battle group can still be accomplished, the cordon
sanitaire could take the form of a “demilitarized zone” between the opposing
forces, thereby making the declaration appear less one-sided and arbitrary. To
have a reasonable hope of Soviet acceptance, the United States should indicate
its willingness to abide by a similar restriction around Soviet battle groups. The
implications of this will be discussed separately below. While the tone of the
message declaring the cordon sanitaire must not be belligerent or threatening,
the message must still convey the intent of the United States to protect the battle
group against the unacceptable situation with force, if necessary. An overly
conciliatory declaration would invite the Soviets to ignore the cordon sanitaire.
An overly threatening tone could increase the likelihood of preemption by the
Soviets.

In summary, the declaration of cordon sanitaire is a provocative action and
should be done with great care. Proper timing of the declaration based on
intelligence data to maximize the U.S. tactical advantage, and careful wording
of the declaration could combine to significantly reduce the danger.

Enforcement Dilemma. Argument Against Cordon Sanitaire: It is almost certain
that the Soviets would protest a U.S. declaration of cordon sanitaire as a violation


Richardson 65

adopted, be the first major treaty to incorporate a comprehensive system of such
settlement.

‘We now have before us, following the Seventh Session of the Conference,
which took place in two stages during 1978 (8 weeks in Geneva and 4 weeks in
New York), a document known as the Informal Composite Negotiating Text
(ICNT). It is called a negotiating text because it has never been formally negotiated.
It is called a composite negotiating text because at the end of the Sixth Session, in
1977, the separate negotiating texts that had up to that point been developed by
the committee chairmen were brought together in a single document. It is called
informal because all of the negotiations that have taken place up to now have
sought consensus; there have been no formal proceedings of the Conference and
no votes under the rule calling for affirmative action by a two-thirds majority
vote. And it will only be when the Informal Composite Negotiating Text has
gone through a new edition and has then been adopted as a draft treaty that we
will for the first time begin to proceed formally.

It remains to be seen whether the Conference will ever achieve that stage.
On the one side, the overwhelming majority of all issues has been resolved.
Perhaps 90 percent of the some 400 articles and 200 pages of text are now the
subject of broad consensus. Within that consensus are almost all of the provisions
that vitally affect navigation and overflight. But before discussing those
provisions, some of the unresolved issues should be mentioned.

Putting aside for the moment the problem of deep-seabed mining, four major
issues have been the subject of negotiation in specially constituted negotiating
groups since the spring of 1978. One group has been charged with the question
of how to accommodate the interests of the landlocked and geographically
disadvantaged States (LL/GDS) that have been excluded from participation in
fisheries beyond 3 miles and inside 200 miles by the achievement of consensus
on the establishment of 200-mile economic zones or fishery zones. The landlock-
ed among the LL/GDS also have had concerns with transit over the territory of
States lying between themselves and the sea. These questions have now come
close to the point of as good an accommodation as it is reasonable to hope for
between the competing interests of the LL/GDS on the one side and the coastal
States on the other.

A second negotiating group has been concerned with problems of dispute
settlement with respect to access to fisheries in the exclusive economic zone by
third countries; issues, for example, with respect to the fairness and the substan-
tiality of the basis upon which coastal States have determined what is the optimum
sustainable yield ofa particular fisheries stock. On that, in turn, depends the share
of the fishery that the coastal State itself can exploit effectively and thus the surplus
that is available for allocation among other countries.

A third negotiating group has been concermed with an issue I’ve touched on
already—the definition of the outer limits of the Continental Shelf. Here we


254 Readings on International Law

sitting just three miles outside our shores, just outside what we claim is territorial waters. In
Saimess to the Soviets, they claim twelve miles.

Nunn: What about the intelligence function? Can innocent passage include intelligence
gathering under international law?

Carlucci: We had better ask the lawyers. All ships have intelligence capability on thern,
50 I do not see how you could avoid it.

Nunn: In other words, if the Soviets pull intelligence ships up right next. . . .

Carlucci: The purpose of innocent passage has to be transit,

Nunn: It is not loitering?

Carlucci: I would not think you could go back and forth.

Nunn: Innocent passage is a means of getting from one place to the other?

Admiral Crowe: That is exactly right. If you gather intelligence in the process, all right,
But you cannot do anything unusual in order to gather intelligence while you are engaged
in innocent passage. In fact, you cannot do anything to operate out of the ordinary pattern
except to go. That is it,

Nunn: So the point is it is reciprocal, We accord nations the same right that we demand,
is that right?

Crowe: Yes, sir, we do.”

Perhaps the most basic point of contention between the United States and the
Soviet Union involved a fundamental disagreement over the right of the coastal
state to limit innocent passage in the territorial sea.5* According to the State
Department, the 1982 LOS Convention limits the right of the coastal state to
impose restrictions on innocent passage. The English text of Article 22, paragraph
1, reads as follows: “The coastal State may, where necessary having regard to the safety
of navigation, require foreign ships exercising the right of innocent passage through
its territorial sea to use such sea lanes and traffic separation schemes as it may
designate or prescribe for the regulation of the passage of ships.” (Emphasis
added.) In other words, a state can impose sea lane restrictions that limit innocent
passage only if they are based on navigational safety considerations. The State
Department noted that the Soviet maritime regulations violated the provisions
of the 1982 LOS Convention by completely prohibiting the exercise ofinnocent
passage in the Black Sea.

However, the Soviets indicated that the Russian text of the law of the Sea
Convention did not limit the coastal state to such restrictions. A subsequent
analysis conducted by the Department of States discovered that the Russian-lan-
guage text of Article 22, paragraph 1, allows the coastal state to regulate the right
of innocent passage whenever necessary.°” The relevant Russian text, translated
into English, reads as follows: “The coastal state, in the event of necessity and with
regard to the safety of navigation, may require foreign ships exercising the right of
innocent passage through its territorial sea to use such sea lanes and traffic
separation schemes. . . .”©° (Emphasis added.)

Thus, a critical issue concerned the scope of Article 22, paragraph 1, of the
Convention: specifically, does the 1982 LOS Convention allow coastal states to
limit innocent passage only for navigational safety considerations, or may sea lane


PART ONE

THE ROLE OF LAW IN THE
INTERNATIONAL SYSTEM


216 Readings on International Law

FON Program Results Should be Declassified and Published. The records of
actual FON assertion operations are presently classified. While prospective FON
projects need this protection for obvious security of own forces considerations,
the same case cannot be made for past operations.

If one accepts the adverse possession analogy that is proffered, the actual
successful challenge of an excessive claim is of little practical use if the interna~
tional community and, conceivably, even the nation challenged are not aware
of it. FON activities are not aimed simply at our adversaries, but are asserted
worldwide against friend and foe alike. Unfortunately, because of the classifica~
tion level, the only public knowledge of these activities focuses on those instances
where a state chooses to respond in a hostile manner and the media pick up the
trail.

While the annual publication of FON results might annoy our friends and
further antagonize our foes, it would serve several very positive, important
functions. First, it would demonstrate the evenhanded implementation of this
program. Also, it would publicly document actual usage of the disputed areas,
thereby demonstrating active nonacquiescence in the face of an excessive claim.
The inherent balance and peaceful intentions of the program would be evident
and avoid the “confrontational only” reporting bias, for which the media cannot
be blamed in light of the security restrictions.

Public Education. Naval officers, and others with expertise in this field, need to
shoulder the responsibility of educating the public and policymakers on the
important issues at stake in this arena and on the FON Program’s peaceful aims
in the face of these excessive and illegal maritime claims. The release of historical
FON assertion data would contribute immeasurably to this process, which would
hopefully culminate in public understanding, appreciation and support of this
vital program.

A recent example is illastrative of the present problems in this area. In a
front-page article reporting the February 1988 “bumping incident” in the Black
Sea, a respected reporter commented: “The United States destroyer Caron and
cruiser Yorktown, sailing 7 to 10 miles off the Crimean peninsula Friday, had
entered the 12-mile limit claimed by the Soviet Union. The Pentagon said the
exercise was part of a Navy policy of asserting the right of passage in waters
exceeding the 3-mile territorial limit [sic] recognized by the United States.

“When the American ships failed to respond to an order to leave, they were
scraped by Soviet warships. . . uaa

Several problems leap out of this text. First, this is not a Navy, but a national
program ordered by the President. Second, although the United States then had
a 3-mile territorial sea, we recognize the right of a nation to establish up to a
12-mile territorial sea. That is not the issue! What was being asserted here was
“innocent passage,” which is preserved within the confines ofa nation’s territorial


Chapter 32

Responding to Terrorism:
What, Why and When?*

Lieutenant Colonel William R. Farrell, US Air Force

hen one speaks of terrorism it is not always clear just what one has in

mind. The man in the street has a sense of what it means, and like
pornography, one knows it when one sees it. It is a phenomenon that is much
more easy to described than define. In some respects we may be better served
by doing just that, rather than by trying to force the attributes into an arbitrary
grammatical construct which will satisfy lawyers. This conclusion is not reached
without some effort and justification.

A review of efforts by the United Nations since its inception has disclosed that
the international organization has been unable to reach any mutually acceptable
definition of the term. In such a body of diverse cultures and races, when the
question, “What is terrorism?” is raised, there is always present some form of
answer—through it is often colored by the purposes of those who raised the
question initially. Where the United Nations has been successful is in dealing
with manifestations of terrorism, i.e. hijacking, hostage-taking, etc., and not the
phenomenon itself.

Related to the above is the fact that terrorism may be carried out for many
different purposes. First, individual acts of terrorism may aim at wringing specific
concessions, such as the payment of ransom or the freeing of prisoners. Second,
terrorism may also attempt to gain publicity. Third, terrorism may aim at causing
widespread disorder, demoralizing society and breaking down the social order.
Fourth, terrorism may target the deliberate provocation of repression, hoping to
have the government self-destruct. Fifth, terrorism may be used to enforce
obedience and cooperation. Sixth, terrorism is frequently meant to punish.
Terrorist often declare the victim of their attack is somehow guilty."

Other aspects also hinder the efforts to fully understand terrorism. The term
itself is emotive and pejorative in its application. No one seems to readily call
him or herself‘a terrorist. They refer to themselves as a revolutionary, a liberator,
a freedom fighter. The term is just too negative. Even if we were to arrive at an
acceptable definition, the application to a particular group would cause
counterclaims and disclaimers. It is not by accident that both President Reagan

* Reprinted from the Naval War College Review January-February 1986.


Aceves 259

the economic or military interests of the maritime State. Sea lines of communica-
tion could be interdicted, therefore, not by a hostile fleet but by the extension
of coastal state sovereignty.

At the same time, the development of international law has been shaped and
influenced by the diverse strategic concerns of the United States. Throughout
its history, the United States has been aware of its heavy dependence on free and
unimpeded passage through the world’s oceans. America’s geographic position,
the location of its major allies, its dependence on international trade, and the
importance of the oceans as sources of food, energy, and minerals provide a
compelling rationale for this traditional reliance on the freedom of the seas.”
This dynamic, whereby strategy dictates the formation and development of
international law, is clearly evident in the Freedom of Navigation program—
wherein the United States has closely guarded both navigation and overflight
rights throughout the world’s oceans under the rubric of the freedom of the seas.

‘William Aceves was a Ph.D. candidate in the Department of Government at Harvard University
when this article was first published.

Notes

1, Message from USS Yorkioun to Commander in Chief United States Naval Forces Europe on 12
February 1988, declassified 16 January 1990. (Abbreviations expanded.)

‘The right of innocent passage was most recently codified in the Third United Nations Conference on the
Law of the Sea (UNCLOS III), United Nations Convention on the Law of the Sea, A/CONF 62/122 (1982).

Article 17 of the Convention provides that ships of all States enjoy the right of innocent passage through the
territorial sea. Article 18 defines passage as navigation through the territorial sea for the purpose of either
traversing that sea without entering internal Waters or calling at a roadstead or port facility outside internal
‘waters, or proceeding to or from internal waters or a call at such roadstead or port facility. It adds that such
passage must be continuous and expeditious, Passage is considered innocent so long as it is not prejudicial to
the peace, good order, or security of the coastal State.

In order to distinguish between the final Convention and the U.N. negotiations which led to it, in this paper
the actual instrument will be referred to as the “1982 LOS Convention” and the conference which produced
itas “UNCLOS III.”

2.. Message from USS Caron to Commander in Chief United States Naval Forces Europe on 12 February
1988, declassified on 16 January 1990. (Slightly edited, abbreviations expanded.)

The U.S.-USSR Agreement on the Prevention of Incidents On and Over the High Seas was signed in 1972.
This navy-to-navy agreement (popularly referred to as the Incidents at Sea or IncSea agreement) attempted to
minimize the potential for harassing actions and navigational “one upmanship” between U.S. and Soviet units
in the close proximity at sea. Although the agreement applied to warships and military aircraft operating on
and over the high seas, it was understood to embrace such units operating in all international waters and
international airspace. The IncSea agreement was amended in a 1973 protocol to extend certain provisions of
the agreement to nonmiilitary ships. See “Agreement Between the Government of the United States of America
and the Government of the Union of Soviet Socialist Republics on the Prevention of Incidents On and Over
the High Seas,” T.LA.S, 7379, 23 U.S.T. 1168; Department of the Navy, Office of the Chief of Naval
Operations 2-10, 2-11 (1987).

3. The United States alto conducted Freedom of Navigation operations in the Black Sea in the waters
off Rumania and Bulgaria.

4. Department of State, Bureau of Public Afftirs, U.S. Freedom of Navigation Program (Washington:
December 1988), p. 1.

5. Dorsey, U.S. To Challenge Sea Limits, The Ledger Star (Norfolk, Va.), 7 August 1979, p. 1; U.S. Will
Challenge Coastal Sea Claims That Exceed Three Miles, The New York Times, 10 August 1979, p. At.

6. Id. U.S, Will Challenge, p. At.


394 Readings on International Law

forces, the International Federation of Airline Pilots Associations called a 2-day
strike of mainly Western airlines. After the General Assembly agreed to debate
within the Special Political Committee the issues of the pilots’ concern, especially
airport security measures, international cooperation in the apprehension, trial and
punishment of the perpetrators of aerial piracy, and the problem of hijackers’
“safe havens,” the Federation agreed to postpone its threatened strike. Rather
than discuss this emergency-inspired topic under one of the existing agenda
items, a new agenda item “Safety of International Civil Aviation”? was inscribed
and the Special Political Committee proceeded to debate the problem. This body
drafted a Resolution that apparently satisfied the International Federation of
Airline Pilots’ Associations. On the other hand, a comparison of its operative
paragraph 3 with the equivalent provision of the 1972 Terrorism Resolution,**
namely paragraph 5, and paragraphs 1, 2, 3 and 4 of the General Assembly’s 1970
Resolution on Aerial Hijacking or Interference with Civil Air Travel® illustrates
a decline in the definitiveness and positivism of the language employed:

1977

Appeals to all States which have not yet become parties to the Convention on
Offences and Certain Other Acts Committed on Board Aircraft, signed at Tokyo
on 14 September 1968, the Convention for the Suppression of Unlawful Seizure
of Aircraft, signed at The Hague on 16 December 1970, and the Convention for
the Suppression of Unlawful Acts against the Safety of Civil Aviation, signed at
Montreal on 23 September 1971, to give urgent consideration to ratifying or
acceding to those conventions;

1972

Invites States to become parties to the existing international conventions which
relate to various aspects of the problem of international terrorism;

1970

1. Condemns, without exception whatsoever, all acts of aerial hijacking or other
interference with civil air travel, whether originally national or international,
through the threat or use of force, and all acts of violence which may be directed
against passengers, crew and aircraft engaged in, and air navigation facilities and
aeronautical communications used by, civil air transport;

2. Calls upon State to take all appropriate measures to deter, prevent or suppress
such acts within their jurisdiction, at every stage of the execution of those acts,
and to provide for the prosecution and punishment of persons who perpetrate such
acts, in a manner commensurate with the gravity of those crimes, or without
prejudice to the rights and obligations of States under existing international
instruments relating to the matter, for the extradition of such persons for the
purpose of their prosecution and punishment;


272 Readings on International Law

The Expansion of Territorial Sea Claims

Claims National 1945, 1958 1965 1974 1979 1983 1991
3NM 46 45 32 28 23 25 9

4-11NM 12 19 24 14 7 6 5

12NM 2 9 26 54 76 78 112

OVER 12M © 2 3 D2 8B 32 19
Number of Coastal or 60 75 85 116 131 139 145

Island Nations

Figure 1
Source: U.S, Department of the Navy

MW
The Status of Maritime Zones in the
Current Law of the Sea

The Third United Nations Conference on the Law of the Sea (UNCLOS III)
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. The provisions of the Convention
which are most likely to have an impact on the law of armed 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
their 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 environ-
ment (articles 55-57). Other States “enjoy” within the EEZ the freedoms of


586 Index

Libyan chemical plant at Rabta, 514, 515
military utility of, 506-509
missile delivery systems, 503
NATO/US perspective, 505, 506
offensive uses, 501
pathogens, 504
possible chemical warfare convention, 512
proliferation, 502-504
self-deterrence, 506
Soviet perspective, 504-506
Soviet policy on inspections and verification, 512
Soviet use in Laos, Kampuchea, and Afghanistan, 505-506, 508, 513
stockpiles, 502-503
terrorist threats, 427-431, 501-502
toxins, 504, 507-508
US. policy, 501, 511, 512
use in Iran-Iraq war, 503
Birkner, John, 510
Bishop, Grenada Prime Minister Maurice, 322
Black Sea
Freedom of Navigation confrontations, 214, 216, 579-580
U. S. Freedom of Navigation Program in, 243, 245, 247-259
“Blue Light,” U.S. Operation, 421-422
Bonn summit (1978), 381-382
Boobytraps, 472
Booth, Kenneth, 47, 59, 178, 179, 180-181, 181-182, 183, 185
Botulinum toxin, 430
Boxer Rebellion, 460
Brazil
LOS Convention statements, 288
rules of overflight assertions, 288
Brown, General (Chairman JCS), 556
Brownlie, Professor Ian, 369, 459
Brussels Conference of 1874, 546
Brzezinski, Zbigniew, 560
Bulgaria, excessive maritime claims, 245
Bull, Hedley, 108-109
Burke, Edmund, 323
Bush, President George, 219, 227, 368, 373
Butler, Major General George, 256
Buzan, Barry, 184

Cable, James, 47, 50, 178, 183
Cambodia, See Kampuchea.
‘Cameroon, signatory to UNCLOS II, 154
Canada
Caroline case, 32, 332, 336, 459
catalyst at Bonn summit on terrorism (1978), 382
control of merchant ships in EZ, 105
extradition practices, 379
Fugitive Offenders Act, 382
joint proposal with U.S. regarding terrorist havens (1976), 381
‘Law of Armed Conflict Manual (Second Draft), 279, 283, 288, 293, 295, 300, 302
rebellion against British rule, 332
‘Temporary Immigration Security Act (1976), 382


Hu and Oliver 183

philosophy and attitude towards their navies and naval planning. Small-navy
States have to rethink the relationship of their naval maneuvers and their political,
diplomatic, economic, and marine-legal effects. Thus, although these navies
might be small in a physical and material sense, their political effects may become
quite large within their EEZs.

Small Navies in the Context of 1982 LOS Convention

In a recent review of Ken Booth’s Law, Force and Diplomacy at Sea, James
Cable’s Diplomacy at Sea, and Rear Admiral J. R. Hill’s Maritime Strategy for
Medium Powers, Donald C. Watt wrote: “They have learnt from reflecting on
the course of events since 1965 that low-level conflicts, or as Admiral Hill calls
them ‘low intensity’ conflicts, are the norm and a nuclear conflict at sea the
exception. This has led them to argue that concentration on the possible role of
navies in the ultimate Armageddon is a grave misuse of time and introduces a
great distortion into the course of naval policy and naval construction. Secondly,
they all wrote before the conjunction of Mr. Knott’s defence budget and the
Falkland/Malvinas conflict provided graphic support for their arguments of the
near folly of the dominant Ministry of Defence doctrine. . . . Thirdly, all have
written under the shadow of the ten-year long International Conference on the
Law of the Sea and the 1982 Convention which concluded it. This convention,
in part at least, updated, for the years of guided ship-to-ship or air-to-sea missiles,
a doctrine of national sovereignty at sea which was outdated in the mid-19th
century with the disappearance from naval warfare of muzzle-loading cannon
firing solid shot. But it came on a wave of concern about the living and non-living
resources of the sea which took its origins with President Truman’s 1945
proclamation on the mineral and fisheries resources of the U.S. Continental
Shelf.”

Preparation for nuclear or subnuclear all-out war is simply inappropriate
planning for most small navies; near or low-intensity conflicts resulting from
contention surrounding national maritime zones and/or maritime interests are
the essence of day-to-day maritime politics. Post-World War II fisheries conflicts
between the United States and Latin American States, Britain and Iceland,
Argentina and Britain, Argentina and the Republic of China (ROC), and the
ROC and the Philippines, all verify this conclusion. With the codification of the
12-mile territorial sea and the 200-mile EEZ in the 1982 LOS Convention and
the introduction of new naval weaponry, coastal States with small navies now
have not only the legitimate incentive but can possess the physical capability to
uphold their national rights or sovereignty at sea.

The late Robert E. Osgood identified six new sources of conflict arising in
this new ocean politics era. They include disputes over economic zones, maritime
boundaries delimitation, straits passage, national security measures in maritime


292 Readings on International Law

FE. 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 1,000 miles north to south.
Indonesia’s archipelagic baselines are over 8,000 miles in length and enclose some
666,000 square nautical miles of ocean space. They also encompass the important
straits of Sunda, Sumba, Lombok, Ombai, Molucca, and Macassar as well as a
number of important internal passages within the archipelago. 5

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 subsoil
of the archipelagic waters. Essentially, 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 ar-
chipelagic 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.”"5° The United States manual adopts


114 Readings on International Law

It might be a time for conceptual jumps and diplomatic trading. At that moment,
the law of the sea, arms control, and naval strategy might walk hand in hand.

Conclusion. The emphasis in public LOS discussions to date has been on
resource rather than strategic questions. Military considerations have played an
important part in the policies of some delegations, but the prudence of the
participants has helped UNCLOS III to avoid disagreements on military issues
from interfering with generally constructive efforts in other spheres. In the
post-UNCLOS III period there will be less cause for such silence, especially if
important Afro-Asian countries become seriously worried by the new dangers
of superpower rivalry in the Third World, and if the projection of naval power
looks like playing an important role in this competition. Once resource issues
become more settled with the completion of UNCLOS III, there is some
expectation that issues of national security will come to the fore. Significantly,
some Third World spokesmen have already claimed that the support of the naval
powers for a narrow territorial sea represented not so much a defense of the
internationality of the oceans, but more a tactic by which they could legally place
their warships as close as possible to the shores of coastal states.'° Whatever the
details of the final treaty, the maritime world will be different after UNCLOS
III: UNCLOS III has helped to create a new image of the oceans, and hence a
new reality. Preeminently, this reality includes the legitimization of the idea that
coastal states can and should have greater control over their own newly extended
maritime backyards. The future is merely a matter of settling the details of size,
shape, and degree of control.

For the ill-defined “short-term,” this paper has argued that there are no new
important strategic implications for northern waters arising out of UNCLOS III.
A possible but unlikely exception arises out of the scope for disunity in NATO
that might result from the process of applying the new rules. A more important
danger arises from the Soviet interest in the future of Svalbard and its surrounding
waters, and the problems this will entail for Norway. In this issue, and in other
matters of regime change, stability at sea requires that the law be supported both
by generally agreed norms and by visible naval and air policemen. This new
emphasis on constabulary tasks will affect the plans and operations ofall the navies
of the region, but it is obviously the smaller ones that will be the most preoccupied
by law of the sea concerns.

In the ill-defined “longer term,” creeping jurisdiction seems irresistible. This
will have major military implications in northern waters, especially for the Soviet
Union. A more restrictive regime will seriously threaten Soviet naval access to
strategic waterways, an access already hindered by geographical disadvantages.
Not surprisingly, therefore, Soviet attitudes to LOS issues have always been very
political and have generally been conservative.'”


Robertson 283

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 measures
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.

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. . . .''

The German draft manual does not address the issue of passage through neutral
straits separately from the question of passage 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 passage for belligerent warships through the territorial sea
of a neutral State may be suspended. !°

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 LOS
Convention, is equally applicable in time of armed 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 passage is regulated in whole or in part by long-standing
international conventions in force specifically relating to such straits.”!° During
the course of the negotiations in UNCLOS III, various delegates suggested that
this exception would apply to the Straits of the Dardanelles and Bosporus


Chapter 42

Greeks Bearing Gifts: Impact of the
INF Treaty on European Security*

Commander Graham Rhys-Jones, Royal Navy

The Scope of the Debate

onsidering its far-reaching security implications, the INF Treaty signed by

‘President Reagan and General Secretary Gorbachev in December 1987,
and ratified this spring by the U.S. Senate, provoked a curiously muted debate.
The contrast with SALT II is remarkable. There was no political football here;
instead, Presidential candidates of all persuasions hastened to endorse it. Such
opposition as emerged was focused not on issues of security, surely the ultimate
test of any arms control agreement, but on whether the Treaty contained
adequate provisions against Soviet subterfuge.

The widespread perception that the Treaty enhanced the security of the
Western alliance was reinforced by the apparent lack of any overt military
opposition. The sting was drawn from General Rogers’ well-publicized remarks
by the favorable testimony of his successor and of the Joint Chiefs of Staff.
Responsible leaders asserted that flexible response was alive and well.! They took
quiet satisfaction in the fact that the Soviet theater nuclear inventory would suffer
a disproportionate cut, implying a concession on the long cherished doctrine of
military superiority.” Yet there was little hard assessment in the public domain
to support an optimistic interpretation. Months later, analysis of the impact of
the Treaty on NATO strategy is still, at best, sketchy, and we have yet to see
from any authority an account of what the Treaty means in terms of Soviet
military strategy and doctrine.

A number of factors have combined to obscure and perhaps even overshadow
the military case. Many see the Treaty primarily in political terms. They see the
advent of glasnost as a historic opportunity to put the superpower relationship on
a sounder footing. They do not reject the utility of nuclear weapons outright,
but accept the consensus view that modern nuclear stockpiles are far in excess of
any deterrent need and have become a cause of tension rather than a factor in
stability. For these people, nuclear arms reductions are good per se. They hope
that the INF Treaty will lead to more.

* Reprinted from the Naval War College Review Winter 1989.


530 Readings on International Law

wartime. This is no easy task in an era of increasing global interdependence in
virtually all fields. Of prime importance in this regard is the confidence of the
superpowers. If they believe that we are not really serious about our neutrality,
or that only a little pressure is needed to get us to throw in our lot with either
of them, then neutrality is worthless as an element of our security policy. That
is why the Swedish government must remove groundless fears and hopes about
our policy. And that is why Sweden must stand firm, even under strong external
pressure,

I would like to take this opportunity to stress what the Swedish policy of
neutrality is of. It is not aimed at neutrality until the time of war. It is not
neutrality in ideological terms. Sweden is a Western, democratic country, and a
member of the cultural community that traces its roots to the Judeo-Christian
value system as developed under the influence of Greek philosophy. Therefore,
Sweden has the right to express solidarity with this cultural community, to
criticize phenomena that are contrary to our democratic principles and contrary
to the basic human rights. In particular, Sweden demands respect for international
law and the interests of small countries, so that the law of the jungle will not be
the norm. This is particularly important in the case of those nations situated in
the vicinity of one or the other of the great powers.

It also gives us the right to actively engage in developing cooperation with
nations in the Third World. We believe that such cooperation in the long run
will foster stability in a volatile and increasingly important part of the world,
thereby contributing to the enhancement of our own security. It is an enlightened
self-interest.

And it gives us the right to actively engage in the endeavors to abolish the
nuclear threat to this planet. We do so in the knowledge that the nuclear threat
is not one that exclusively hangs over those who possess those weapons, but over
life on this planet in its entirety.

Countries neutral by treaty, permanently neutral, or, like Sweden, conducting
a policy of neutrality aimed at being neutral in war, have in common their desire
to avoid being drawn into war. In today’s world these countries come in handy
for the world community. They are trusted, and they shoulder international
responsibilities that contribute to the building of peace and understanding,
sometimes at great cost. They do so, of course, in accordance with their respective
history and traditions, geographical locations, and individual political aims and
aspirations, but in the common aim to benefit themselves from the lower tension
that at least in part results from their contributions.

Permit me to mention a few examples:

* Switzerland, conveniently situation at the crossroads of Europe, has over
the years played host to numerous international endeavors to solve disputes by
peaceful means. The League of Nations, and later the United Nations and the
International Red Cross (a genuinely Swiss organization), had or have impressive


Terry 457

warning of impending terrorist attacks. Unfortunately, a decade of dismantling
our security apparatus in the 1970s has radically reduced our human intelligence
collection capability. Secretary of State Shultz has correctly noted, “we may never
have the kind of evidence that can stand up in an American court of law. "7

The question then is how much information is enough? Secretary Weinberger
has underscored the very real practical difficulties that exist for the military
planners in attempting to apply small amounts of force, especially over great
distances, with insufficient intelligence. He has accurately noted the difficulty of
assuring success, and has echoed the need for public support for any sustained
resort to force by the United States in defending against terrorist attack.® While
these honest concerns would, of course, be factored into any decisional process
concerned with the possible use of force, former Security Advisor McFarlane,
speaking with the full support of President Reagan, has pledged: “We cannot
and will not abstain from possible action to prevent, preempt and respond to
terrorist acts where conditions merit the use of force.””

Although no Reagan administration official has yet been able to define
adequately “how much information is enough,” the demand for probative, or
court-sustainable evidence affirming the complicity ofa specific sponsoring State
is an impractical standard that has contributed to the impression—on the part of
certain States—that the United States is inhibited from responding meaningfully
to their outrages. Hugh Tovar correctly notes: “There is a very real danger that
the pursuit of more and better intelligence may become an excuse for non-action,
which in itself might do more harm than action based on plausible though
incomplete intelligence.”!° Thus, the United States should seek a functional
standard of guilt appropriate to the threat and prove wrong those terrorist
sponsors operating on the assumption the United States will never use force.

Legal Framework for Response

An examination of authorized responses to State-sponsored terrorism requires
an understanding that terrorism is a strategy that does not follow traditional
military patterns. In fact, a fundamental characteristic of terrorism is its violation
of established norms. Even war has norms that survive despite their frequent
violation. The only norm for terrorism is effectiveness. International law requires
that belligerent forces identify themselves, carry arms openly and observe the law
of war." Principal among the laws of war are the principles of discrimination (or
noncombatant immunity) and proportion. Terrorists, however, do not distin-
guish between the innocent (noncombatants) and the armed forces of the country
in which the attack is made. Two rationales explain this strategy. The very fact
that the victims of terrorist attacks are innocent third parties enhances the shock
effect of attacking them. Alternatively, the terrorist may decree that everyone
living in a certain society is guilty of its sins and deserving of punishment. In the


120 Readings on International Law

recognized only 3 miles as a valid territorial claim, international disagreement on
this point had prevented the first United Nations Conference on the Law of the
Sea (UNCLOS) from including a uniform standard on the permissible breadth
of the territorial sea in the 1958 Geneva convention on the territorial sea.*
UNCLOS III, in session since 1973, would recognize the validity of the 12-mile
territorial claim as part of a comprehensive diplomatic package that would also
protect maritime passage through international straits, prescribe the offshore
jurisdiction of coastal States (including their jurisdiction over the continental shelf
and a newly created 200-mile exclusive economic zone or EEZ), establish an
international regime for deep seabed mining, and help define the rights and
obligations of States with respect to pollution of the marine environment. With
respect to passage through international straits, UNCLOS III would create a
regime of “transit passage”—a set of special rules for international navigation
through straits the waters of which would otherwise have become subject to the
rules applicable within territorial seas.

In November 1971 the Governments of Indonesia, Malaysia, and Singapore
issued a joint declaration that, if implemented, could have significantly affected
the legal status of the Straits of Malacca.’

* The three Governments agreed the safety of navigation in the Straits of
Malacca and Singapore is the responsibility of the coastal states concerned;

* The three Governments agreed that a body for cooperation to coordinate
efforts for the safety of navigation in the Straits . . . be established as soon as
possible and that such body should be composed of only the three coastal States;

* The Governments of Indonesia and Malaysia agreed that the Straits . . . are
not international straits, while fully recognizing their use for international
shipping in accordance with the principle of innocent passage;

* The Government of Singapore took note of the position of the Govern-
ments of the Republic of Indonesia and Malaysia in this point.

In this declaration, the three Governments announced their intention to
assume competence over controlling international vessel traffic in the Straits. The
Governments of Indonesia and Malaysia would have gone further and declared
that passage through those parts of the Straits within their territorial waters was
fully subject to the ordinary principle applicable in such waters—“innocent
passage”—and not to any special principles applicable in international straits.
(Under the 1958 Geneva convention on the territorial sea, foreign vessels passing
through a territorial sea are allowed to proceed freely if they are in innocent
passage; innocent passage may not be “hampered” by a coastal State, except for
temporary suspension for security reasons. In straits used for international
navigation, however, through passage may not be suspended. Passage through a
territorial sea is presumed innocent unless it is “prejudicial to the peace, good
order or security of the coastal State.”)* If international passage through the Straits
had become subject to the rule of innocent passage, the operations of oil tankers


342 Readings on International Law

19, Neutze, The Gulf of Sidra Incident: A Legal Perspective, US. Nav. Inst. Proc, 26 (January 1982).

20, O'CONNELL, THE INFLUENCE OF LAW ON SEA POWER 71 (1975).

21. Id, at 82.

22. USS. Dept. of Navy, SECNAVINST 5820.7A, OP-642 (Washington: 1984).

23. Id,, par. 9.

24. Id, parts 10, 14.

25. ULN., The Law of the Sea, Official Text of the United Nations Convention on the Law of the Sea (hereinafter
LOS Convention) (1983), Art. 92, Though the United States has not signed this treaty, itaccepts the provisions
cited in this article asa valid reflection of customary international law binding on the United States in its dealings
with other States which comply with the freedom of navigation and overflight rules in the treaty in their
dealings with us.

26. LOS Convention, Arts. 11, 55, 56.

27. LOS Convention, Arts. 56-57.

28, LOS Convention, Art. 111.

29. Convention on Intemational Civil Aviation (Chicago, Il.: 7 December 1944), 15 U.N.T.S. 295, Art.
12; Convention on Offenses and Certain Other Acts Committed on Board Aircraft (Tokyo, Japan: 14
September 1963), 704 U.N.T.S. 219, Art. 3-4.

30. LOS Convention, Arts. 105, 110; but compare RUBIN, 63 U.S. NAVAL WAR COLLEGE INTER-
NATIONAL LAW STUDIES, THE LAW OF PIRACY (1986).

31. Convention for the Suppression of Unlawful Seizure of Aircraft (Hijacking), (The Hague: 16
December 1970) 22 U.S.T. 1641, Art. 4; Convention for the Suppression of Unlawfal Acts Against the Safety
Civil Aviation (Sabotage), (Montreal, Canada: 23 September 1971) 24 U.S.T. 564, Art. 5; International
Convention Against the Taking of Hostages, (New York: 17 December 1979) TIAS 11081.

32. International Convention Against the Taking of Hostages, Art. 5.

33, Id., Art. 1.

34, Treaties cited in n. 31, supra.

35. Murphy, Legal Aspects of Inteenational Terrorism: Summary Report of an Intemational Conference, Am. S.
Int'l L, 30 (1980); Sheehan, The Entebbe Raid: The Principle of Self-Help in Intemational Law as Justification for
State Use of Armed Force, The Fletcher Forum 135 (Spring 1977).

36. Supra n. 20 at 70; see also 53-55.

37. PALMER & COLTON, A HISTORY OF THE MODERN WORLD 673 (1978).


238 Readings on International Law

helicopters, but also 130-mm cannons which usually do not belong to the
equipment of a Soviet division.”

Facing this force on Hokkaido are four of the thirteen divisions of the Japanese
Ground Self Defense Force. Behind this force stand the Japanese defense budget,
which in 1990 amounted to a massive $29.7 billion, less only than those of the
United States and the Soviet Union. In such a situation, an attempt to cross forces
from the Kuriles appears highly unlikely, at least in the initial stages of hostilities.

Soviet sovereignty over the Kuriles implies control of the gateway between
Hokkaido and Kamchatka. One must, however, keep in view the prospect that
combined U.S. and Japanese naval and air forces will wrest control of the Kuriles
from the Soviet Union at the outbreak of hostilities. Additionally, the ar-
chipelago, being of such great length, can not be made impenetrable to sub-
marines attacking into the Sea of Okhotsk bastion. To give up the segment of
the Kurile chain represented by the Northern Territories would undoubtedly
weaken the Soviet defensive capability; the Soviets must weight for themselves
the peacetime benefits that a compromise may provide compared to the ad-
vantages that an intact island barrier will bring in the event of a putative future
war.

Meeting at the Crossroads, Status Quo Preferred

President Mikhail Gorbachev was the first Soviet head of state to visit Japan.
The results were predictable. The summit meeting paved the way for further
high level cooperation on minor matters, but did little to solve the issue of the
Northern Territories or arrive at a peace treaty now forty-five years past due,
Since December 1988, there has existed at the vice-foreign minister level a
working group on the peace treaty. Progress on the territorial problem, however,
has always been blocked. Gorbachev and Kaifu played out at the summit roles
carved deep in the pasts of their respective nations.

That the Soviet Union has at least acknowledged the existence ofa territorial
dispute, however, is viewed as a positive sign. Prime Minister Kaifu stated last
year in the New Times interview that it looked as if the Soviets would foist
acceptance of “postwar realities” on the Japanese, but he recognized that different
opinions, previously impossible to state publicly, had appeared in the Soviet
Union.

In this year of the Soviet-Japanese summit, Gorbachev has been regarded as
the representative of the emerging “different opinions;” it came as no surprise
that he could announce to the world that a territorial dispute did exist. That,
however, was about as far as new thinking would emerge. In the Soviet Union,
resurgent hard-liners opposed return of the islands. Among the reformers, Boris
Yeltsin was reported as saying the Russians would not “do another Alaska” over
the islands.” Soviet Defense Minister Yazov is reported to have insisted that all


Jacobson 175

7. The Territorial Sea and Contiguous Zone Convention also includes several complex provisions on
establishing baselines from which the territorial sea and other zones are measured and rules forsetting boundaries
between the seas of opposite and adjacent States.

8 Convention on the High Seas, 29 April 1958, 13 U.S.T. 2312, T.I.A.S. No. 5200, 450 U.N.T.S. 82.

9. Convention on the Continental Shelf, 29 April 1958, 15 U.S.T. 471, T.LA.S. No. 5578, 499 U.N.T.S.
311.

10, See North Sea Continental Shelf Cases, [1969] I.

11. 29 April 1958, 17 U.S.T. 138, T.LA.S. No. 5959, 559 U.1

12, G.A. Res. 2749, 25 U.N. GAOR Supp. (No. 28), at 24, U.N. Doc. A/8028 (1970).

13. G.A. Res. 2574D, 24 U.N. GAOR Supp. (No. 30), at 11, U.N. Doc. A/7630 (1969).

14, G.A. Res. 2750C, 25 GAOR Supp. (No. 28), at 26, U.N, Doc. A/8028 (1970).

15. Although the official agenda of the Third Conference lists only 25 major items, the major items are
farther subdivided, The total number of items thus listed is approximately 85.

16, See arts. 55-75 of the 1982 Convention.

17, See atts. 76-85 of the 1982 Convention.

18. See arts. 2-32 of the 1982 Convention.

19. See arts. 34-45 of the 1982 Convention.

20, See arts. 46-54 of the 1982 Convention.

21, See arts, 133-191 of the 1982 Convention and Annexes III & IV.

22, The 1982 Convention, an extraordinarily complete document, also contains detailed provisions on
several topics not mentioned in the text of the atticle—ey., marine pollution, scientific research at sea, the
status of islands, marine mammals, access by landlocked nations, settlement of ocean disputes, etc.

23, The United States also charges that the common-hetitage proceeds of seabed mining might be
distributed to such objectionable recipients as the PLO and other national liberation groups.

24, The counterargument points out that U.S. companies frequently put up with even more restrictive,
antifree enterprise schemes in resource-extraction deal with Third World countries. See Katz, A Method for
Evaluating the Deep Seabed Mining Provisions of the Law of the Sea Treaty, Yale J. World Pub Order 114 (1980).

25, The historical record is set forth with great clarity in HOLLICK, UNITED STATES FOREIGN POLICY
AND THE LAW OF THE SEA (1981).

26. For example, the Nixon proposal would have designated all seabed space seaward of the 200-meter
isobath (depth line) as common heritage space. See Comment, The Nixon Proposal for an Intemational Seabed
Authority, 50 Or. L. Rev. 599 (1971).

27, Fishery Conservation and Management Act of 1976, 16 U.S. C. 1801-1802.

28, But arguably only for the common-core assertion of fisheries management jurisdiction.

29. U.S.C, §1401-1473.

30. Ratiner, The Law of the Sea: A Crossroads for American Foreign Policy, Foreign Affairs 1006 (Summer
1982),

31

. Proclamation 5030, 48 Fed. Reg. 10,605 (Mar. 14, 1983). A policy statement by the President
accompanied the EEZ Proclamation and can be found in Weekly Comp. Pres. Docs., 14 March 1983, at 383.

32, See Wooster, Research in Troubled Waters: U.S. Research Vessel Clearance Experience, 1972-1978,
Science, Technology, and Ocean Development, 9 Ocean Dev. Int'l L. 219 (Jacobson ed. 1981).

33, Supran. 31,

34, Ambassador Thompson Flores of Brazil recently stated that, according to his country’s interpretation,
the 1982 Convention on the Law of the Sea [does] not authorize other States to carry out military maneuvers
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."

35, Supran, 31,



316 Readings on International Law

surface attack force. This threat, coupled with the facts that the Belgrano was less
than 12 hours steaming from the task force and that darkness was coming on,
warranted her being attacked under the terms of the last warning. Her sinking,
as you know, had a devastating deterrent impact upon the Argentine surface fleet,
Subsequent action led to the loss of the Sheffield; after which we reiterated our
intentions by warning Argentina that her surface and air units outside their
12-mile territorial limits could well be “in play.” With this background let us
take a closer look at the Rules of Engagement (ROE): rules that were staffed
and transmitted on the traditional basis that we would observe accepted interna-
tional law at all times.

Minimum force to ensure survivability was very much the keynote of early
operations; hence, anticipatory self-defense had to be addressed. Our national
ROE publication was our primary source document with the addition of some
new rules with specific South Atlantic relevance. The Ministry of Defence
produced a library of the rules most likely to be used and, hence, comprehensive
pre-briefing of decision makers was possible.

A clear statement of the ROE politico-military environment always accom-
panied basic rules at any stage. This writer cannot overly stress the importance to
the on scene commanders for having this overall perspective to guide their
interpretation of the basic rules. Although the staffing and production of the rules
were a notable success, the end product could not help but be complex.
Identification criteria were established, as were the critical threat ranges of enemy
units so as to deal appropriately with hostile intent when the situation warranted.

In the ships of the task force, total familiarity with the rules by the command
team involved much care and thoroughness, and extended to the Commander
Task Group “quizzing” his commanding officers on their familiarity with the
tules extant. It clearly demonstrated the degree that the military bent to political
reality and to the constraints of international law, as it always must. I believe it
also ensured that we had no engagements between our own units—firm
identification criteria curbed too ready a trigger-finger!

The following are some of the areas which posed the greatest problems:

* How to deal with the shadower, particularly if it were a Boeing 707 or a
trawler.

* Resupply merchantmen and in particular the place of the naval auxiliary in
this generic title.

¢ The safety of civilians adjacent to naval gunfire support targets 10 miles away
on a darkened island at night.

* Unidentified air contacts by night or in low visibility.

At this point it would be useful to describe actions in which my ship took part
which required clear, unambiguous rules and, yet, where something less than
unbridled aggressive action was called for.


Wiegley 559

the best ways to advance common interests and reconcile those that are in
conflict.

The third major development mentioned at the outset has been the increase
in Soviet efforts to exert political pressure on Japan through the use of military
forces. These Soviet efforts are significant because they affect Japan’s perception
of the Soviet threat and, hence, Japan’s view of the adequacy of American
support.

In April 1975, during the worldwide Soviet Okean II exercise, four Russian
naval task forces were deployed around Japan, two of them on important Japanese
trading routes. A year later Soviet warships sailed south through the Sea of Japan
while Soviet reconnaissance aircraft flew a parallel course along both sides of
Japan’s home islands.> In 1977, Soviet military aircraft made nearly 200 “abnor-
mal demonstrative flights” near Japan’s airspace, including 30 flights that circled
Japan.® Also in 1977 the Soviets conducted numerous naval maneuvers in the
Sea of Japan.’

Such displays of Soviet military force are not Japan’s only concern. Equally
important in terms of political effect is the so-called “Northern Territories”
problem. The Northern Territories are the four islands just north of the main
Japanese island of Hokkaido that are claimed by both Japan and the Soviet Union
(Etorufu, Kunashiri, Shikotan, and the Habomai group). The islands were
occupied by Soviet forces at the end of World War II and the Soviets have been.
in possession ever since. Japan, which held undisputed title to the islands from
1855 to 1945,8 claims that the Soviet annexation was illegal under the terms and
principles governing boundary settlements after the war. The Soviets have been
consistently inflexible in their view: the territorial issue is not negotiable.

The problem of the Northern Territories is significant for political, economic,
and military reasons. Mere discussion of the problem arouses strong feelings of
Japanese nationalism. In fact, the dispute has been a major obstacle to a peace
and friendship treaty between Japan and the U.S.S.R., despite the fact that the
two countries have had diplomatic relations since 1965. Moreover, the issue is
becoming more sensitive as competition between Japanese and Soviet fishermen
increases. The Northern Territories are surrounded by a very fertile fishery, and
Japan has been forced to negotiate for limited fishing rights in what used to be
traditional Japanese fishing grounds.® Soviet patrol boats do not hesitate to seize
Japanese fishing vessels that either enter territorial seas around the disputed islands
or violate the terms that regulate Japanese fishing in the area. Since 1945, some
8,000 Japanese fishermen and 1,000 vessels have been seized by Soviet patrols.°

Soviet seapower is also evident in the Northern Territories in a different form.
A Peking radio broadcast in early 1976, quoting a Japanese fisherman, stated that
Soviet planes were based at an airfield on Kunashiri and Soviet warships were
anchored at Hittokappu Bay, Etorufu Island.'! The strategic significance of the
Northern Territories is undoubtedly well-known to the Soviets: the islands


556 Readings on International Law

American policy than promises of future support. Even before the U.S. an-
nouncement, the Vice Director of the Japanese Defense Agency stated in an
annual Defense white paper (June 1969) that, “the United States has been
replaced by the Soviet Union as the predominant military power in the Far East.”
If Japanese officials believe that the United States is second in strength to the
Soviet Union in Asia, they would naturally take a skeptical view of American
promises: after all, how sincere can the commitment be if the United States is
willing to withdraw forces from Korea in the face of Soviet predominance?

More recent events have not been lost on Japanese observers either, such as
Washington’s apparent preoccupation with the security of Western Europe. In
a recently delivered paper, a Japanese professor of international relations began
by quoting the following statement by General Brown, Chairman of JCS, to the
U.S. Congress:

At current levels of force structure, war in Europe would require the great
preponderance of U.S. general purpose forces. Deployment of significant portion
of the Pacific Command’s naval resources to the Atlantic may be required. If this
were to occur, control of the seas between the continental United States and
Hawaii could be maintained, as could the sea lanes between Alaska and the Lower
Forty Eight. However, broad sea control beyond those lanes would be a difficult
challenge. Forces of all Services available for other contingencies and crises—for
example, war in the Middle East or on the Korean Peninsula—would be seriously
reduced.’

The effect of such statements by high-level American officials should not be
underestimated, especially when made to Congress. Whatever congressional
hearings may mean to Americans, they are watched closely by foreign observers
for signs of future U.S. policies. For example, it is unlikely that Tokyo failed to
notice that Secretary of State Vance, in a February 1978 synopsis of U.S. foreign
policy presented to the House International Relations Committee, did not even
make reference to Asia.

Asecond perception evolving in Japan is that the U.S. Congress wants Tokyo
to assume a greater share of Japan’s defense burden.” Undoubtedly, there is some
support in Congress for such a move, but the idea will almost certainly not gain
momentum without support from the Department of Defense—an unlikely
prospect for the foreseeable future. Nonetheless, it is easy to see how Japanese
authorities might view discontented Congressmen as harbingers of a reduction
in the U.S. contribution to Japan’s defense.

Also important in Japan’s perception of the U.S. commitment to East Asia is
its view of U.S. policies toward the PRC and the Soviet Union. When the
United States first made overtures toward Peking in 1971, the Japanese Govern-
ment was surprised and offended by Washington’s failure to consult with Tokyo
in advance (the shift in U.S. policy was dubbed by the Japanese press as “Nixon's


Chapter 37

The Coming Explosion of Silent Weapons*

Commander Stephen Rose, JAGC, U.S. Navy

‘wenty years ago the United States unilaterally disbanded its biological

warfare program. According to the wisdom of that time, germs and toxins
were crude, uncontrollable weapons of little military value.' In recent times,
however, analysts have begun to warn that biological agents are now poised to
become flexible weapons perhaps “even more dangerous” than nuclear arms.”
‘What has led to this complete turnaround in analytical thinking within the span
of two decades?

The answer lies in the revolution in biotechnology, especially in genetic
engineering, that began during the 1970s. Recently developed techniques permit
the manipulation of key biological processes with a precision and power not
dreamed of 20 years ago. Gene-splicing allows the transfer of toxic features from
one biological agent to another. Science can now reshuffle the genetic deck of
micro-organisms to produce a theoretically unlimited number of combinations,
each with its own unique blend of toxicity, hardiness, incubation period, etc. In
short, it is becoming possible to synthesize biological agents to military specifica-
tions. Thus, the world lies on the threshold of a dangerous era of designer bugs
as well as designer drugs.

As if this were not concern enough, two additional factors serve to amplify
the impact of this revolution on the military. First, the new biochemical processes
are relatively cheap, easy to master, and accessible to all. This allows many more
players to enter the arena of biochemical warfare, ranging from superpowers to
Third World States to terrorist groups.

Second, the new technology inherently favors offense over defense. Although
strengthened by a million years of evolution, the human organism remains
vulnerable to biochemical assault. Several of the new supertoxins are ten thousand
times more potent than nerve gases now held in military arsenals. One author
estimates that “nerve gas, which has created a worldwide furor, is mere perfume
compared to some agents on the drawing board.” Even more sobering is the
emerging possibility for designing organisms which resist all known treatment
and which might take years to counter. The potential scope of this problem is

* Reprinted from the Naval War College Review Summer 1989.


446 Readings on International Law

purview of the coastal State’s law enforcement agencies. A coast guard-like force
trained in antiterrorist tactics would seem particularly well suited to this task.
In conclusion, it warrants observation that the best cure for offshore maritime
terrorism would appear to be overt deterrence through premeditated prevention.
Even so, some recent evidence suggests that many coastal States today may be
ill-prepared to deal efficaciously with a terrorist situation were it to be perpetrated
against a facility off their shores.*® If this speculation actually is more fact than
fancy, then it is not presumptuous to assume that, for all intents and purposes,
an open invitation for such attacks may have been issued to terrorist groups
everywhere. That indeed would be lamentable. Given the political vagaries of
the contemporary international order, callous indifference or myopic incredulity
by governments toward possible terrorist threats is patently inexcusable. Put
bluntly, for ofShore installations in particular, to be forewarned about terrorism.
is to facilitate forearmament against terrorism. The time is not too early to begin.

Dr. Joyner was an Assistant Professor of International Law in the Political Science Department
at The George Washington University at the time this article was first published.

Notes

1, Foran insightful study, see JOYNER, AERIAL HIJACKING AS AN INTERNATIONAL CRIME (1974).

2. See e.g., STERLING, THE TERROR NETWORK: THE SECRET WAR OF INTERNATIONAL
TERRORISM (1981).

3, This data is extrapolated from Statistics: Tervorism, by Risk Intemational, reprinted in 5 Terrorism no. 4,
at 371-372 (1982).

4, American Petroleum Institute, 11 Basic Petroleum Data Book sec. XI, Table 1 (May 1982).

5, Id. at sec. Il, Table 4. In 1981, the U.S. Geological Survey estimated that for the United States alone
proven crude reserves offthore ranged from 2 near-certain 16.9 billion barrels to a possible 43.5 billion barrels
(with a mean of 28 billion barrel). Similarly, proven ofBhore natural gas reserves ranged from a near-certain
117 willion cubic feet (tcf) to possibly as much as 230.6 tcf (with a mean of 167.0 tcf).

6. Id, at sec. XI, Table 13, The exact figure was 3,834.

7. 1982 OFFSHORE CONTRACTORS & EQUIPMENT DIRECTORY at 328 (14th ed. 1982).

8. Offihore Drilling Maintains Past Pace, Oil & Gas Journal, 145 (3 May 1982). Of this number 20 rigs are idle.

9. Td.

10. Frick and Hegglund, Financing International Oil and Gas Projects, World Oil 207; (May 1981). U.S.
Capital Outlay to Soar to a record $74.7 billion, Oil & Gas Journal 57-61. (16 February 1981).

11. This point is constantly made throughout terrorists’ writings. For example, as expressed by Carlos
Marighella in his Minimanual, “It is necessary for every urban guerrilla [i.e., terrorist] to keep in mind always
that he can only maintain his existence if he is disposed to kill the police, . . . and if he is determined—truly
determined—to expropriate the wealth of the big capitalists, the latifiundists, and the imperialists.” Marighella,
From the ‘Minimanual,’ in THE TERRORISM READER 161 (Laqueur ed. 1978).

12. Intemational Terrorism and the Defense of Offthore Facilities, U.S. Naval Institute Proceedings 56
(September 1979).

13. Matt, Maritime Terrorism —An Unacceptable Risk, Part I, Ocean Industry 66 (February 1981).

14, Cline, Foreword, in ALEXANDER, CONTROLOF TERRORISM: INTERNATIONAL! (1979),

15. Convention on Offenses and Certain Other Acts Committed on Board Aircraft, 20 U.S.T. 2941,
Suppression of Unlawful Seizure of Aircraft (Hijacking), 22 U.S.T. 7192, T.LA.S. No. 7192 (entered into
force 14 October 1971), reprinted in id, at 55-61; and Convention on the Suppression of Unlawfal Acts Against
the Safety of Civil Aviation (Sabotage), 24 U.S.T. 564, T.1A.S. No. 7570 (entered into force 26 January 1970),
reprinted in id., pp. 63-70.

16. Convention to Prevent and Punish the Acts of Terrorism Taking the Form of Crimes Against Persons
and Related Extortion that are of International Significance, T.LA.S. No. 8413 (promulgated 2 February 1971),



164 Readings on International Law

It has been something to behold! UNCLOS III can justifiably lay claim to
having been the most significant attempt at truly global cooperation ever. Its task
‘was awesome. Three numbers—150, 85, and 70—set the challenge: more than
150 nations (virtually the entire world community) gathered together to address
85 agenda items,'® with a view to negotiating a comprehensive set of legal
principles to govern nearly every aspect of use of 70 percent of the planet's surface,
Perhaps most astounding of all, the entire set of 85 issues had to be negotiated as
a package,

The outcome: a comprehensive, very complex treaty of 440 provisions,
covering 200 single-spaced pages, resulting—until the April 1982 adoption of
the final text—entirely from consensus. Not a single vote was taken until the
vote on the adoption of the treaty as a whole. (Whether the new treaty ever
becomes binding international law or not, students of international politics and
diplomacy will be studying UNCLOS III’s process for decades.)

Figure 2 shows a cross-section of the new oceanic order embodied in the 1982
Convention of the Law of the Sea. A comparison of this figure with Figure 1
will demonstrate that the most striking development in the past 25 years has been
the recognition of vastly extended coastal-nation competence to regulate and
affect ocean activities in broad offshore zones.

fame
(om

HIGH SEAS

TERRITORIAL SEA
CONTIGUOUS ZONE

T

EXCLUSIVE ECONOMIC ZONE _jyqjy2000m |

CONTINENTAL SHELF.

|
|
|
|
|
<7
|
|

STRAITS PASSAGE

Figure 2

The Exclusive Economic Zone (EEZ)'® is a new concept, based on the original
Latin American 200-mile claims. Within its EEZ, each coastal country has, in
the phrase of the new treaty, “sovereign rights” over all resources, living and
mineral. It is also allowed extensive jurisdictional authority over scientific
research and is granted certain controls over marine pollution. The EEZ extends


Chapter 30

Terrorists and Chemical/
Biological Weapons*

Elliott Hurwitz

WW: all of the interest that has been shown in terrorism in recent months,
relatively little attention has been paid to the possibility that terrorists
could dramatically escalate the type of weapons they use, and so pose a much
greater threat to organized societies and governments than they do at present.
‘What we have in mind is a terrorist group’s use, or credible threat to use, mass
casualty weapons—those that can cause several hundred to tens of thousands of
casualties in a single attack.

Some attention has been paid, in both fictional and nonfiction accounts to the
possibility that terrorist groups might acquire nuclear weapons.! To be sure, the
acquisition ofa nuclear device by a terrorist group would indeed be a spectacular
event of high political moment and grave public concern. It would mark a new
era in terrorist operations and might have an important effect on the political
balance in a particular region. However, the seriousness with which we view
such a threat is reduced by the extreme difficulty that any terrorist group would
face in fabricating or stealing a nuclear device. In effect, the very difficult technical
and political problems that a group would have to overcome in order to acquire
a weapon have reduced our anxiety that such an event could occur.

However, there exists a second category of mass casualty weapons whose use
terrorists could plausibly consider: chemical/biological (C/B) weapons. While
these weapons do not quite have the unique destructive power or political force
of nuclear weapons, their acquisition and credible deployment by a terrorist
group would undoubtedly be considered as a very significant—and ghastly—es-
calation of the terrorist threat. The use of C/B weapons in a terrorist incident—
for example, an attack with a nerve agent on a large auditorium that caused several
thousand casualties—would traumatize the government at which the attack was
aimed. If the terrorists were well organized and the initial attack were followed-
up with threats to use C.B weapons again, the possibility exists that widespread
social disruption or even panic might result. Most significantly, and most disturbing,
if appears from the available evidence that it is entirely feasible for a terrorist group of even

* Reprinted from the Naval War College Review May-June 1982.




60 Readings on International Law

have done so would have required a treatise at least the size of Colombos’
International Law of the Sea (over 850 pages of text). The policy scientist, and those
engaged in other broad-based, multidisciplinary examinations of the problem of
ocean space, would assert that international law is but one influential factor in
the oceans policy process. The policy scientist would say that international law
is but the outcome of the effective power process, only one aspect of the total
social process. The policy scientist would therefore include those holding
international law to be “absolutely binding” as part of a larger, more complex,
configurative matrix. Booth recognizes the complex relationship between navies
and foreign policy; the policy scientist insists that there is an equally complex
relationship between policy, one outcome of which is law (a factor that must
also be considered) and naval force, one aspect of military strategy, which has as
its alternatives diplomacy, economics and ideology. Booth has carefully limited
his book to a focus on navies and naval affairs and not maritime affairs. Sea Power
would supply part of the mosaic for effective decisionmaking under this concept,
and thus represents a valuable increment to the field from the policy science
viewpoint.

Even with these limitations, Janis has produced a fine book that should be of
immediate assistance to the naval officer or the military lawyer who grapples with
these complex problems of the law of the sea. Its quality gives promise of excellent
contributions to future scholarship from the author. It would be hoped, however,
that this article has reemphasized the complex nature of the “troubled common”
of the altered ocean environment, whether seen from the aspect of the military
commander, the lawyer, or the policy scientist. Not many military commanders
can or should make policy or practice law; not many lawyers can or should make
policy or wage war; not many policy scientists or decision theorists wage war or
practice law. All three disciplines, and other professions as well can, however,
learn from the processes of the others and appreciate the multifaceted issues of
seapower and ocean law in the United States’ third century. It is hoped, however,
that the lawyers, analysts, policy scientists and concerned military officers will
pool resources to assist governments in evolving a workable law of the sea, based
on sound policies, for the new order of the oceans.

Professor of Law, Wake Forest University

Notes

1. Kenney, A Primeron S.G. Gorshkov's Sea Power of the State, Naval War College Review 94 (Spring 1977).

2, Mr. Janis, a Princeton graduate and a Rhodes Scholar at Oxford University where he received the
B.A. and M.A. in jurisprudence, taught international law and relations at the Naval Postgraduate School as a
Naval Reserve officer, received his J.D. degree at the Harvard Law School and is now an associate of the New
‘York law firm of Sullivan & Cromwell.

3, To be sure, the distinction between passage of merchant ships and warships through straits was drawn,
but there is no comparison of size of major maritime carriers as was done for the four great powers.

4, MCDOUGAL & BURKE, THE PUBLIC ORDER OF THE OCEANS (1962).





Robertson 311

guidance on the subject has been received from a higher command.” Canadian Manual, supra n. 71, para.
706(6).

167. See supra, nn.77-79 and accompanying text for discussion of the neutral’s rights in this regard.

168. NWP 9, supra n. 61, para. 7.3.6.

169, LOS Convention, supra n. 2, article 44, as incorporated mutatis mutandis into the archipelagic-State
Part of the Convention by article 54.

170, 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
IIL (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, Wisnumusti, Archipelagic Waters and Anchipelagic Sea Lanes, in VAN DYKE, ALEXANDER, &
MORGAN, INTERNATIONAL NAVIGATION: ROCKS AND SHOALS AHEAD? 198, 204-205. (1988). In
view of the near identity of the provisions in the other articles of the two Parts as well as incorporation of key
provisions of the transit passage regime by reference mutatis mutandis into Part IV (article 54), itis difficult to
conclude that this difference in terms has any legal significance.

173. LOS Convention, supra n. 2, article 53, para. 3.

174, Id, article 54.

175, NWP 9, supra n. 61, para. 7.3.6.

176, Canadian Manual, supra n. 71, para. 1511(2).

177. NWP 9, supra n. 61, para. 7.3.5.

178. There are, of course, exceptions such as the Singapore-Malacea Strait.

179. The Singapore-Malacca Strat is an exception here also.

180, 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 International Law, 16-18 February
1983, reproduced in 3 UCLA Pacific Basin Law Review, 42 at 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 intemational law applicable to armed conflict
provided thata 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 n. 172, Dr.
‘Wisnumurti, who was the Director of Legal and Treaty Affrs 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 Indonesia’s position on this issue.

182, LOS Convention, supra n. 2, article 1(1),

183, 14,, article 135.

184, Restatement (Third), supra n. 5, section 523, Reporters’ Notes, para. 1.

185. See intetim mining laws enacted by France, Germany, Japan, the former U.S.S.R.., and the United
Kingdom reprinted in 21 LL.M. 808 (1982), v. 20, at 393 (1981), v. 22, at 102 (1983), v. 21, at 551 (1982),
and v. 20, at 1717 (1981) respectively. The United States act is at Title 30, United States Code, sections 1401
et seq.

186. LOS Convention, supra n, 2, article 137, para. 1. Restatement (Third), supra n. 60, section 523, para.
Me).

187, LOS Convention, supra n. 2, article 87, para. 2 (emphasis supplied).

188, 18 October 1907, 37 USS. Statutes at Large, at 2332, Bevans, v. 1, at 699. Although the Convention,
by its own terms, covers only “automatic contact mines,” it seems to be generally 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 n. 65, at 304, note 49; RAUCH, supra n. 69, at 116; NWP 9, supra
n. 61, para. 9.2.1; Canadian Manual, supra n. 71, para. 710.

189, LEVIE, MINE WARFARE AT SEA (1992) (cited hereinafter as LEVIE).

190. Id., 36.

191. Id, 37-42.

192. Sir Emest Satow, Proceedings of the Conference, v. 1, at 274-275, as quoted in Levie, supra n. 189,
p. 41, Sir Emest added that Great Britain regarded the Convention 2s only a partial codification of the law of
mine warfare and that it would not “be permissible to presume the legitimacy of an action for the mere reason
that this Convention has not prohibited it.” Id., at 41-42. Great Britain filed a reservation to the same effect.
See SCHINDLER & TOMAN, THE LAWS OF ARMED CONFLICTS: A COLLECTION OF CONVENTIONS,
RESOLUTIONS AND OTHER DOCUMENTS 808 (3rd ed. 1988).



Chapter 33

An Appraisal of Lawful Military
Response to State-Sponsored Terrorism*

Lieutenant Colonel James P. Terry, U.S. Marine Corps

L their military posture statement for fiscal year 1986, the Joint Chiefs of Staff
state:

The use of terrorism against the United States . . . continues to pose a formidable
challenge . . . . The threat from international terrorism has never been greater .
. .. In addition to the renewed activity of terrorists indigenous to countries in
‘Western Europe, the threat is growing from Muslim transnational groups which
originate in the Middle East and are influenced by Iran, Libya and Syria. These
groups pose a significant threat to U.S. interests both in the Middle East and in
Europe.

This JCS statement echoes Administration concerns regarding State terrorism
addressed in National Security Decision Directive (NSDD) 138, signed by
President Reagan on 3 April 1984. In the words of Defense Department official
Noel Koch, NSDD 138 “represents a quantum leap in countering terrorism,
from the reactive mode to recognition that pro-active steps are needed.”*
Although the document itself remains classified, Robert C. McFarlane, former
assistant to the President for National Security Affairs, suggested at the Defense
Strategy Forum on 25 March 1985 that it includes the following key elements:

* The practice of terrorism under all circumstances is a threat to the national
security of the United States.

* The practice of international terrorism must be resisted by all legal means.

* State-sponsored terrorism consists of acts hostile to the United States and
to global security and must be resisted by all legal means,

* The United States has a responsibility to take protective measures whenever
there is evidence that terrorism is about to be committed.

* The threat of terrorism constitutes a form of aggression and justifies acts in
self-defense.>

It is clear that the Reagan Administration had embraced a new proactive
posture, asserting the right to act preemptively to defend its citizens and interests
where threatened by State-supported terrorism abroad.

* Reprinted from the Naval War College Review May-June 1986,


360 Readings on International Law

Congress’ power to declare war as incorporating a veto-like power to “declare
against a war,”*” no authoritative source supports such a conclusion. Indeed, the
Framers unanimously rejected a proposal to grant Congress the power to declare
war “and peace.”

This balance of power is not altogether satisfying to those concerned about
the practical effectiveness of congressional checks on the President. Professor
Louis Henkin has remarked: “No one can disentangle the war powers of the two
branches, including their powers to act towards the enemy . . . [But such an
arrangement of] power often begets a race for initiative and the President will
usually ‘get there first.’"®° A guileful President would experience little difficulty
identifying or even creating a threatening incident abroad that would be
sufficiently provocative to justify the use of force. Similarly, a cynical President
might find it expedient to undertake an offensive military campaign and simply
label it a defensive, preemptive action. Although Congress might have the power
under such circumstances to bar the use of federal funds for combat, it might also
lack the political will to do so. The President’s power to commit forces to combat
in the name of national defense thus would present Congress with a fait accompli,
a war to be terminated by congressional vote for withdrawal short of victory.”
War would become, in such a situation, as Madison noted, “the true nurse of
executive aggrandizement.”*!

The Supreme Court addressed this concern in Martin v. Mott by rejecting the
presumption of presidential guile and emphasizing the penalties for abuse of
power: “It is no answer, that such a power may be abused, for there is no power
which is not susceptible of abuse. The remedy for this, as well as for all other
official misconduct, if it should occur, is to be found in the Constitution itself.
Ina free government, the danger must be remote, since, in addition to the high
qualities which the executive must be presumed to possess, of public virtue, and
honest devotion to the public interests, the frequency of elections, and the
watchfulness of the representatives of the nation, carry with them all the checks
which can be useful to guard against usurpation of wanton tyranny.”9? In short,
the Mott Court was not willing to assume an abuse of power by virtue of the
exercise of power. To the contrary, the Court found that as a matter of law, as
opposed to politics, the presumption worked in the President's favor.

The Constitution was not designed to predetermine a politically satisfying
balance of power. Rather, the constitutional allocation was meant to establish
the legal limits within which the political process might produce such an
equilibrium. This is to say that the Constitution set boundaries beyond which
the President and Congress may not stray during a political clash over the
propriety of the use of force. The political questions raised by President Reagan’s
unilateral decision to use military force against Libya in 1986 included whether
the decision was morally sound, whether it would enjoy domestic popular
support, and whether it would serve the strategic and diplomatic interests of the


828 Readings on International Law

of Reagan’s use of force in Grenada are particularly fond of zeroing in on the
numbers of American fighting men that landed on Grenada to evict a few
hundred Cuban “construction workers.” “People who only ask how much is
enough, or how few we can barely get by with, tend to develop an instinct for
the capillaries. That is not the instinct it is wisest to cultivate if you want to win
real—not bureaucratic—battles.””°

“The facts of war are often in total opposition to the facts of peace... . The
efficient commander does not seek to use just enough means, but an excess of
means. A military force that is just strong enough to take a position will suffer
heavy casualties in doing so; a force vastly superior to the enemy’s will do the
job without serious loss of men.”””

President Reagan, in his decision to use force in Grenada, balanced morality,
legality, and reality; nevertheless, like Melville’s Billy Budd, he was lauded by
the people but hung legally for doing what was morally right.

he realities of geopolitics, national policies, economics, and military

strategy may all have been considered by the Reagan Administration prior
to the President’s decision to invade the island. Nevertheless, ideas and ideals,
based on definite moral preoccupations, were a very important factor in the
President’s decision-making process, and led him to conduct American foreign
policy as he did in Grenada. “The judgments we make are best accounted for if
we regard life and liberty as something like absolute values and then try to
understand the moral and political processes through which these values are
challenged and defended.””*

The United States’ action to protect the lives of Americans and Grenadians
by conducting an invasion of the island of Grenada secured the real and moral
high ground for America. The temporary occupation of the island—a source of
irritation to Reagan critics—insured for the Grenadians, life, liberty, choice and
security against the forces that threatened them in the first place. “The world of
‘war is not a fully comprehensible, let alone a morally satisfactory place. And yet
it cannot be escaped, short of a universal order in which the existence of nations
and peoples could never be threatened. There is every reason to work for such
an order. The difficulty is that we sometimes have no choice but to fight for
it.”

Itis important for us, during this critical time in our history, to recall the words
of John Stuart Mill: “War is an ugly thing, but not the ugliest of things. The
ugliest is that man who thinks nothing is worth fight or dying for.” In Grenada,
American soldiers, sailors, and marines fought so that others might enjoy life and
liberty and the ideals that de Tocqueville so eloquently elaborated over a century
ago. We mourn for those who died on Grenada, but celebrate in the knowledge
that the United States of America is still willing to defend those ideals when
challenged. America’s moral courage is equal to the physical courage of her


Rose 515

a multidisciplinary, multiagency effort. In the recent judgment of the Army’s
Science Board, “essentially little attention has been given by the Army in its
biological defense Programs as to how modern biotechnology might be used by
potential adversaries.”

This is a dangerous state of affairs, yet somewhat understandable. Biochemical
agents do not have a natural constituency within the military. Service members
are reluctant to become involved with “soft” weapons. The paradigm of a
‘weapon seems to be a platform bristling with firepower—and tomorrow’s version
will be bigger, faster and more powerful. Bugs and drugs are headed in the
opposite direction: smaller, more covert, and increasingly repugnant. More to
the point, the services themselves are leery of diverting resources from the
‘weapons systems they prefer to the dismal world of biochemical agents, especially
since the ramifications of this threat extend well beyond traditional service
functions and forces.

Accordingly, the real force structure needed to cope with this expanding
problem is an infrastructure that incorporates elements from DoD, the FBI, the
State Department, the National Institute of Health, and the Center for Disease
Control. Possible formats might be a presidential advisory council, a National
Security Council interagency group, ora joint agency patterned after the Defense
Nuclear Agency. Paralleling the doctrine of combined arms, a multidisciplinary
group of this sort would seek to counter the biochemical threat by force of
combined brains.

AGlimpse of the Future

The outlook for biological weapons is grimly interesting. Weaponeers have
only just begun to explore the potential of the biotechnological revolution. It is
sobering to realize that far more development lies ahead than behind.

The modern battlefield is already, by design, an exceedingly dangerous place
for human beings. Today’s smart weapons will become the brilliant weapons of
tomorrow; and future generations of “genius” weaponry lie below a not-so-dis-
tant horizon. The characteristics of such weapons will include a fire-and-forget
mode, extended loiter capacity, micropropulsion, and enough true artificial
intelligence to allow them to relentlessly hunt down individuals. Neural net-
works equivalent to the brain capacity ofa bumblebee are already on the drawing
board. Combine a refined version of this capability with advanced robotics,
10th-generation electronics and a shaped-charge or toxin “stinger,” and there
emerges the conceptual prototype of an “insect weapon” that could dominate
the tactical battlefield of the next century. Today’s RPV’s could metamorphose
into tomorrow’s artificial killer bees.

Does this imply that the role of the human warrior is ultimately threatened?
As a bearer of weapons, perhaps; as a director of weapons, no.°” A human being




Goldie 393

its work in accordance with the mandate entrusted to it”?”
the item in its next (32nd) session.

1977 proved to be a year of considerable activity. In March the Ad Hoc
Committee met, but it did not produce a draft convention or any legal
propositions adherence to which would bind States to specific legal obligations.
Instead, its Report showed agreement only on the following generalizations:

(1) An inalienable right ofall peoples to self-determination and independence
exists;

(2) The need to condemn and repress acts of international terrorism is
obvious;

(3) The General Assembly should continue its efforts to combat international
terrorism; and

(4) There is a need for international cooperation in tackling international
terrorism.

At its 32nd Session the General Assembly instructed the Committee to
continue its work but imposed a new set of priorities. In the seventh operative
paragraph the General Assembly stated that it;

and decided to include

Invites the Ad Hoc Committee on International Terrorism to continue its work
in accordance with the mandate entrusted to it under General Assembly resolution
3034 (XXVID), first by studying the underlying causes of terrorism and then by
recommending practical measures to combat terrorism;

The United States voted against this Resolution.

In August another Ad Hoc Committee, this one on the taking of hostages,
met. It had been created as the result of an initiative taken by the Federal Republic
of Germany” in the Sixth Committee of the General Assembly’s 31st Session.
The Committee was requested, in the same resolution, “to present its report and
make every effort to submit a draft convention” in good time for its consideration
at the 32nd session of the General Assembly.*! Because of the greater specificity
of its definition and subject matter, the proponents of this agenda item were
sanguine that the new committee would focus on issues more closely related to
the procedures and methods of combating acts of taking hostages rather than on
the sociopsychological factors that have tended to render the work of the Ad Hoc
Committee on International Terrorism rather more diffuse. This may, perhaps,
have been premised on a faith in the power of words and definitions to control
effectively the purposes and the perspectives of the various regional and ideologi-
cal groups that constitute the General Assembly. Despite its mandate, the Hostage
Committee, after many vicissitudes, failed to produce a draft convention in the
3 weeks available to it.*?

After the hijack on 12 October 1977 of the Lufthansa Boeing 737 aircraft, its
6,000-mile odyssey, the murder of its captain, and finally the rescue of the
passengers and crew at Mogadishu on 18 October by a special unit of German




210 Readings on International Law

Rather, these rights should be continuously asserted on a regular basis if they are
not to atrophy and ultimately disappear.

Adverse Possession of the Maritime Common. The concepts of expanding
territorial seas and the potentially more ominous unilateral restrictions on, or
prohibition of, navigation and overflight are attempts to trespass upon the
historically recognized rights of all nations to the high seas. An analogy in U.S.
domestic law is the concept of “adverse possession,” where, under specified
circumstances, long-continued possession of land may result in the acquisition
of title, by a trespasser, that is good even against the rightful owner of the property.
An essential element of the claim is that the possession be adverse to the true
owner. In the domestic context, statutes govern the period of time in which the
rightful owner must act to recover his land.“

The social policy which appears to justify the rather severe consequences for
the true owner is premised upon the societal utility in seeing that an asset is being
used in a productive manner which benefits the larger society as a whole.

However, in order for the trespasser to obtain the recognized property interest,
it is necessary that his possession be open, notorious and contrary to the interests
of the rightful owner. In other words, if the occupation is permissive, as under
a lease or easement or, by analogy, conferred by a treaty or agreement, it is not
contrary to the ownership rights of the true owner and, thus, has no legal effect.

Of course, in the international system, there is no statutory delineation of the
period of adverse maritime encroachment, nor an effective tribunal where the
matter might be conclusively resolved. However, this concept might offer some
useful insights in defending against excessive maritime claims. The observed
practices in defending against such claims appear to have striking parallels.

First, diplomatic protests are initiated to publicly disabuse the offending coastal
state of any notion that acquiescence by default will be conceded. By thus
opposing the claim as adverse to the maritime interests of the community of
nations, it is next incumbent upon the true owner of the rights being infringed
upon, that same community, to exercise and demonstrate the continuing utility
of, and resolve associated with, this universal interest.

And because custom and practice have such major impacts in the international
legal system, especially in the absence of governing treaty provisions to the
contrary, this exercise is particularly important. Otherwise, new customs and
practices may evolve and be legitimized in the dynamic international legal system,
thereby further eroding existing rights.

In the international community, the responsibility for the assertion of these
right falls squarely upon the shoulders of the leading maritime power, the United
States, which, in effect, serves as a trustee for their effective enforcement.


570 Readings on international Law

were not in themselves sufficient. Nuclear war would be short and decisive,
offering manifest advantages to the side that struck first. Military doctrine
therefore came to demand the decisive laydown of nuclear fires that would
“anticipate” (if not preempt) a NATO decision."! Despite its evident problems
and risks, this strategy has survived at least as an option for countering the NATO
theater nuclear threat.

The INF Treaty may tell us something about the role of this strategy (the
decisive use of nuclear weapons in theater) in current Soviet thinking. The Soviet
Union retains an impressive theater nuclear capability including systems capable
of striking to the full depth of the enemy rear, but their post-INF force structure
appears less effective for the kind of mission envisaged. The loss of intermediate
and shorter range missiles, most of them mobile, the majority highly accurate,
and all virtually immune to defensive countermeasures, indicates a genuine
reduction in capability. If this strategic option was the target of the INF
negotiations, and if it was the right target, then, from the Western perspective
the Treaty may be judged a success.

Yet Soviet military leaders have long since concluded that the decisive use of
nuclear weapons in the European theater was less than acceptable as a means
towards their objectives and a strategy of last resort. They have therefore searched
for alternative methods for countering the nuclear threat—methods that would
be less likely to engage the strategic forces of the United States, of the independent
nuclear powers, as well as surviving forward deployed systems. The search took
them back to their strategic roots, to the theories of mass, tempo, and deep
penetration by maneuver forces, developed by Frunze and Tukachevskii, and
tested in the Second World War.

The broad outlines of this strategy, updated for the nuclear age in the form of
the theater strategic operation, have received considerable attention from
‘Western analysts.” The threat of escalation is addressed in two ways. Firstly, the
ground offensive will be designed to achieve rates of advance so rapid that theater
objectives will fall before the opponent can use his nuclear forces to rational
advantage. Soviet military leaders have concentrated for decades on developing
the mobility, firepower, and battle management techniques needed to make this
operation feasible without recourse to nuclear weapons. Secondly, they will seek
and maintain a posture of escalation dominance. This has involved both the
prewar deployment of superior numbers of theater nuclear systems (an explana-
tion for INF deployments that is more firmly rooted in Soviet military thought
than Western notions of decoupling) and from the onset of war would involve
acombined arms conventional air operation with the specific objective to further
and perhaps decisively alter the nuclear correlation of forces in their favor. No
assessment of the INF Treaty can be complete without considering its impact on
this operational strategy.


MacDonald 89

include the seabed and subsoil of those areas contiguous to the territorial waters
of the states involved.

According to Richard Young, the Saudi claim to the resources of the seabed
and subsoil was directly based on the Truman Proclamation. The claim was
altered, however, to conform with the geographical characteristics of the Gulf.
Because the Gulf was essentially a basin and had no shelf as such, the Saudi claim
was based upon the “principle of contiguity.” (Iran’s claim was to the continental
shelf, but Iran does have a shelf extending into the Gulf of Oman.)

The fishing claims of Iran and Saudi Arabia supported two specific interests
in the Gulf. First, the claims were in response to the presence of foreign fishing
vessels, especially those of Japan. Thus an economic interest in the fishery
resources was supported. Second, apart from conserving fishery resources,
security interests were served. Foreign vessels, supposedly fishing, could no
longer move freely in the areas contiguous to the territorial sea but became subject
to regulation. This could limit subversive activities and foreign intelligence
operations.

Bilateral Agreements. The Iranian and Saudi agreements delimiting offshore
resource boundaries are closely tied to the Gulf context, both in terms of its
geographical features and political developments. First the agreements were
influenced fundamentally by the physical features of the Gulf, especially by the
presence of islands and “known” fields of petroleum. Boundary lines were often
adjusted to allocate resources in an equitable manner and to take into account
certain islands, such as Kharg Island. Disputed islands often delayed and some-
times have prevented the delimitation of certain offshore areas. The dispute over
Abu Musa and the two Tunbs has complicated boundary delimitation in the
south, Similarly, the competing claims to Warbah and Bubiyan islands complicate
boundary delimitations in the north.

Political developments have played a significant part in motivating States to
seek agreements. For example, Iran and Saudi Arabia negotiated for years on
their offhore boundary, but were able to reach a final agreement only after the
British announced their withdrawal from the Gulf. Interests in regional stability
led Iran and Saudi Arabia to move to resolve other lingering territorial disputes
with their neighbors.

Multilateral Agreements. The Gulf efforts to protect the environment are also
tied to both geographical and political considerations within the region. The
danger of pollution in the Gulfis not only associated with the heavy tanker traffic,
but also with the relatively slow interchange of water between the Persian Gulf
and Indian Ocean. Moreover, the threat to the environment has direct political
overtones within the region in light of the professed threats of terrorist attacks.
In the summer of 1979 the United States warned its ships traveling through the


Rubin 25

part of the highest officials that the expertise of an international lawyer capable
of perceiving the system is vital to the proper discharge of their own functions.

This problem is frequently encountered by international lawyers within the
system by their senior decision makers constantly reminding them that the law
is only one of many (implication: one very minor among many major) inputs to
wise policy. The lawyer who takes his expertise seriously and feels his public
responsibilities quickly learns to make his contribution a matter of written record,
forcing the superior to face bureaucratic consequences if it is ignored and the
policy made in disregard of the legal factors turns out badly. This does not increase
the popularity of the lawyer, but if popularity were the game there would be no
reason for the public to pay our salaries.

The reasons why this sort of situation is especially tense for lawyers is difficult
to unearth. My own speculation is that many policy makers and planners are
frightened of the law because they do no understand it, and feel secure if they
can assure themselves that it does not really matter. If they take it seriously and
still don’t understand it, they face the alternative of handing over too great a
portion of decision-making to their lawyer, whose judgement as to the many
other factors that must be reflected in wise policy may be faulty or ill-informed.
The real cure is, of course, greater education and familiarity with international
law by non-lawyers, who make policy, and the selection of legal advisers who
can explain their views in terms comprehensible to an intelligent decision maker.
That is what makes the problem so difficult. Lawyers who can explain their
insights in simple language are as rare as economists who can—and just as
important; decision makers who can open their minds to the subtleties of the
law without losing touch with reality are even more rare than lawyers who can
express themselves clearly. The worst resolution is the one so frequently
attempted: The appointment of lawyers to policy positions. That “resolution”
normally confuses the expertise of successful corporation or claims lawyers with
the expertise of international lawyers, and gives to policy the all-or-nothing,
episodic, crisis-management approaches that lawyers are accustomed to, in place
of the measure-of-risk, continuing-relationship approaches that wise policy
demands.’

The problem is probably unsolvable; it is a problem that affects the entire
bureaucracy, not merely the military portion of it or that part that involves
lawyers. But to recognize it is already to alleviate it. It is possible that nothing
more can be done. If that is so, it places a great burden on lawyers in positions
to affect policy to press their views with the same vigor that economists and
military specialists press theirs. It also places a great burden on policy makers to
seek out legal opinions on all matters, and to decide on the weight to be given
the legal input only after the best available input has been received and explained.
Failure to shoulder those burdens can involve failure to discharge our public

duty.


236 Readings on International Law

Burevestnik

HOKKAIDO

ETOROFU
(ITORUP)

PACIFIC

OCEAN

AUTICAL, MILES

THE NORTHERN TERRITORIES

ery tana


Robertson 297

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.”"® 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.!*3 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 con-
troversial 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.'®* The United States and several other States of
the developed world have assigned 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.'® 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 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.'®° 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 for the rights under this Convention with respect to activities in
the Area.”"®”

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.


282 Readings on International Law

However, since the 1960s the Japanese government has limited its definition of
the North Territories (Hoppo Ryodo) to comprise only four islands: Kunashiri
Island, Etorofu Island, Shikotan Island, and Habomai (actually the Habomai
group of smaller islands).?

Unless otherwise stated, the term Kuriles in this article refers to the entire
island chain, while Northern Territories will be used to refer to the islands
involved in the present Soviet-Japanese sovereignty issue.

Rajan Menon and Daniel Abele describe the Kurile archipelago as a Soviet
“protective barrier fencing off the Sea of Okhotsk from the Pacific Ocean,”
which in the hands of an adversary “is a restrictive cordon sanitaire with the
potential to complicate further the adverse climatic and geographical circumstan-
ces faced by the Pacific Fleet based in Vladivostok.”?

The Kuriles have the appearance of a terrestrial version of Orion’s shield.
Research by Michael Thompson has found the archipelago to be described by
Soviet writers as a “1000 kilometer Cossack saber” and a Russian “screen of
steel.”* Presently the Kurile Islands and Sakhalin form an administrative district
(oblast’) of the Soviet Far East Region of the Russian Soviet Federative Socialist
Republic. Militarily, they lie in the Soviet Far East TVD.

Ten miles of water separate the southernmost island, Kunashiri, from Cape
Notsuke on Hokkaido. The Kuriles have excellent harbors from which to stage
naval operations, as indeed Admiral Nagumo did at Etorofu in preparation for
the 7 December attack on Pearl Harbor, and as General Gnechko did in
completing the Soviet occupation of the Kuriles four years later in September
1945.

The Soviet-Japanese Gap in Thinking

Historical Resentment. The Kuriles have been the scene of clashing interests
between these nations for two centuries. John Stephan in his history of Sakhalin
writes, when “the expanding frontiers of Russia and Japan met in Sakhalin and
in the Kurile Islands at the beginning of the nineteenth century, the ‘island
country’ Japan faced the problem of a contiguous land frontier with a foreign
power (moreover a European power) for the first time in her history.”® Japan,
Stephan writes, met this challenge by exploring, colonizing, and economically
developing Hokkaido, the southern Kuriles, and southern Sakhalin.

“Japanese historiography of the Kuriles sometimes resembles a mirror image
of the Soviet view,” writes David Rees.® Soviets speak of “age-old” rights
threatened by Japanese intrusion. Japanese authors claim the Northern Territories
to be “inalienable” Japanese lands that are historically, legally, and culturally part
of Japan.

Russia renounced its claim to the Kuriles in the 1875 St. Petersburg Treaty
in exchange for the cession of Japanese rights on Sakhalin. The Treaty of


150 Readings on International Law

costs in excess of $1 billion per rig. Many experts believe that the source for over
50 percent of the world’s hydrocarbons (oil and natural gas) will be the oceans
by 1990. The developing countries are naturally desirous of obtaining this
complex technology for exploitation around their own shores.

Other advances associated with marine technology include the areas of
shipbuilding, tidal/current power production, ocean thermal energy projects,
and the extraction of minerals and chemicals from seawater, muds, polymetallic
sulfides, etc. The precedent of the deep seabed as the “common heritage of all
mankind” could conceivably be applied in many other areas. The Treaty already
provides a framework for the systematic transfer of marine technology from the
industrial world to the developing countries, although it is mandatory only in the
area of deep seabed mining at the present. However, it is important to bear in
mind the wide range of marine technologies that are subsumed in the category
of “seabed mining.”

Overall, it is clear that marine technology will have an increasingly important
impact on the standard of living and the economic welfare of many countries,
The issue of the transfer of such technology will continue to be a key concern
in the North-South dialogue in general and in the Law of the Sea Treaty in
particular.

Industrial Countries

By far the majority of the marine technology in the world today is held by
the industrial countries, including primarily the United States, Western Europe,
and Japan. The position of the Western nations on the issue of technology transfer
in the Law of the Sea context is not unified. The United States, particularly under
the highly free-enterprise oriented Reagan administration, is strongly opposed
to the mandatory transfer of any marine technology. On 29 January 1982,
President Reagan released a statement announcing that the United States would
return to the Law of the Sea negotiations after a hiatus of nearly a year. He voiced
six key areas of concern with the Treaty, most of which were involved in one
‘way or another with the deep seabed mining portion of the accord. He said, “...
the Convention should not contain provisions for the mandatory transfer of
private technology.”!° Ambassador James Malone, the Special Representative of
the President for the Law of the Sea negotiations, echoed the same thought in
testimony before the House Merchant Marine and Fisheries Committee on 23
February 1982: “There is a deeply held view in our Congress that one of
America’s greatest assets is its capacity for innovation and invention and its ability
to produce advanced technology. It is therefore understandable, that a Treaty
would be unacceptable to many Americans if it required the United States, or
more particularly private companies, to transfer that asset in a forced sale.”!!
Other Western nations are not so vocal in their opposition to the technology


Bunn 339

“hostage-taking” if not piracy. Hostage-taking includes seizing, detaining or
threatening to kill other persons (hostages) in order to compel a third person to
do something as a condition for release of the hostages.°? Under the hostage-
taking treaty, the United States was authorized to take necessary measures to
arrest the hijackers because Americans were hostages. Italy, though not yet a
party to the treaty, could have stopped the ship in international waters to arrest
the hijackers for violating Italian law because the ship flew the Italian flag.

When the hijackers gave themselves up to Egypt, that country had an
obligation under the hostage-taking treaty (to which it is a party) to turn them
over to its own prosecutors or to extradite them to one of the other States in the
interested classes (including the United States and all the other parties whose
nationals were taken hostage or whose nationals were among the hijackers).
Instead of doing so, Egypt planned to turn them over to the Palestinian Liberation
Organization, ostensibly for prosecution. When the Egyptian airliner, under
police or military control, in which the hijackers were aboard was intercepted
by American naval aircraft over international waters, it had been denied landing
permission in both Tunisia and Syria where different PLO factions had head-
quarters. The U.S. aircraft then forced it to land in Italy.

Forcing the aircraft down to assert criminal jurisdiction would have fit an
exception to the general rule limiting jurisdiction in international waters to the
flag State if the hijacking had occurred on a civil airliner rather than on the Achille
Lauro because, among other reasons, Americans were among the hostages.°** In
actuality, the hostage-taking occurred earlier aboard ship, and the offenders were
under Egyptian police or military control on the aircraft. But since Egypt had
failed to exercise its responsibility to prosecute or extradite under the hostage-
taking treaty, forcing the plane down was important for the United States to
carry out its obligations to “take necessary measures” to assure prosecution under
that treaty. Did this justify the United States taking the law into its own
hands—violating its cherished notions of freedom of navigation and overflight
in international waters? I believe it did, to fulfill the international duty which
Egypt had but failed to perform.>

Customary international law is made by the action and reaction or acquies-
cence of States. A new rule may be in the making permitting seizure of terrorists
by those States within the interested classes specified in the treaties when another
party with an obligation to do so refuses.

Conclusion

The policy of international law, ROE and Navy Regulations is to discourage
on-scene commanders from starting wars which nobody wants—from shooting
first in peacetime—unless the survival of their ships or aircraft depends upon it.
According to O’Connell, the basic assumption is that naval force, when used,


Robertson 285

waters from “sovereignty” manifest in the territorial sea. As stated earlier,'!* 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,"115

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! 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.!"7 Reinforcing the distinction between the territorial sea and the exclusive
economic zone is paragraph 2 of Article 58, which states, “Articles 88 to 115
[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,!"® 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:

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
III:


492 Readings on International Law

Deception has often been a major contributor—if not the most decisive
factor—to success in naval and land warfare. In the tactical sense, deception may
be defined as the deliberate misrepresentation of reality to gain an advantage over
the enemy.’ It can take as many forms as a fertile human mind can conjure, and
it serves countless functions. It can be used to control the time and site of battle,
to achieve surprise by misleading the enemy, to maximize tactical advantages or
minimize disadvantages, or even to render attack unnecessary by inducing the
enemy to surrender.’ Sun Tzu tells us that “[a]ll warfare is deception. Therefore,
when capable, feign incapacity; when active, inactivity. When near, make it
appear that you are far away; when far away, that you are near. Offer the enemy
a bait to lure him; feign disorder and strike him. . . . When he is strong, avoid
him. Anger his general and confuse him. . . . Pretend inferiority and encourage
his arrogance.”

One of the earliest recorded examples of the use of deception in naval warfare
was in the Battle of Salamis in 480 B.C., when the vastly outnumbered Greeks
feigned a withdrawal in order to lure Xerxes’ Persian fleet into a narrow channel.
This maneuver contributed to a Greek victory by preventing the Persians from
simultaneously deploying their entire fleet.© Modern technology, such as
electronic warfare, has added new twists to the art of deception in battle, but the
underlying premise—surprise—remains the same. However, it is not enough for
a commander to simply know the current techniques of deception; he must also
know the current law. The lawful use of deception in battle may earn him
accolades as an astute master of naval warfare, but its illegal use may make him
a war criminal.

Deception: Ruse or Perfidy?

Those who write on the law of armed conflict generally classify the use of
deception as either ruse, which is legal, or perfidy, which is not. Drawing a
distinct line between these two is virtually impossible, since what is a permissible
ruse in one situation may, with just a slight shift in circumstances, constitute
perfidy in another.

Any commander, at sea, ashore, or aloft, must understand why international
Jaw is even concerned enough about the issue to distinguish between the two.
It would seem to make more sense either to outlaw all forms of deception or to
permit them all, rather than place commanders in the position of possibly
violating international law by using some novel form of trickery which has
neither been blessed nor condemned by the international legal community.
However, the rationale underlying the prohibition against perfidy is that com-
batants are expected to behave in absolute good faith toward each other. This
notion may seem contradictory to those unfamiliar with the law of armed
conflict. Nevertheless, in order to minimize human suffering as much as possible


50 Readings on International Law

of customary law of the sea notes the beginnings of customary international law
in the last two centuries, then plunges abruptly into the 1972-73 cod war between
the United Kingdom and Iceland. While the latter conflict makes the point, a
more complete historical discussion might have mentioned the evolution of the
cannon-shot rule into the 3-mile limit, the developing practice or custom of
collecting debts by gunboat diplomacy in the 19th century, or the Corfu Channel
Case of 1947. These customs have since been vindicated or repudiated by
international convention. Introduction of such paradigms would have provided
a natural transition to the subchapter on “Naval Interests and the Law of the Sea
Negotiations.” The influence of naval action on international custom and
custom’s impact on national courts was not discussed, nor did the author discuss
the reciprocal effect of customary international law on seapower, a theme of
O’Connell’s study and a factor perceived by Cable. Janis’ study of the interplay
of naval interests and the development of international agreements to govern the
regime of the oceans is primarily concerned with the recent Law of the Sea
Conference negotiations. The naval input into the development of treaty norms
is old; for example, Matthew Fontaine Maury, and therefore the U.S. Navy, was
a major force in early conferences on weather problems. Similarly, the opposition
of naval interests as articulated by Alfred Thayer Mahan to arbitration,” which
perforce requires a treaty, must have had its influence. As O’Connell has pointed
out, treaty law has also had an influence on the employment of naval force.
The final chapter, “Navies and the New Ocean Order,” concludes that the
new ocean order—whether based on convention or consensus through new
customary norms—“is bound to create some difficulties for naval operations.”
The old regime was based on freedom of the seas “suited for the mobility of
powerful navies.” The new norms for the oceans will follow a theme of restricted
use. “The navies of the world will not only be called upon to respect new national
regional and international maritime laws, but sometimes [will be] expected to
help establish rules in times of conflict and uncertainty.” Janis views the United
States and the Soviet Union, more than the lesser naval powers, as facing the
great dilemma (or frustration) of possessing relatively overwhelming naval force
in an era of decreased high seas mobility due to the new restrictive international
norms. O’Connell would agree with Janis that “the law of the sea . . . dictates
the practicalities of [the] deployment of sea power,” and that the professional
insights of the naval officer who is aware of the law, and the lawyer who
understands what goes on inside warships, must be the result of a continuing
dialogue. O’Connell would also inject the developing technology of navies as
an active factor in self-defense, permitted under international law, contrasted
with Janis’ apparent conclusion that the new norms may serve as only a cramp
on the style of the mobile navy. More importantly, O’Connell would urge the
world’s naval staffs (and, this writer would add, decisionmakers at the national
policy level) to take the predicted trends that have been postulated and plan


252 Readings on International Law

before if you do not clear our waters.’ This transmission was not acknowledged.
Krivak 0811 maintained station off port beam at 300 yards. Yorktown continued
transit and exited territorial waters at 0926Z, [11:26] without further incident.”*

Interestingly, the Soviet version of the incident downplayed the severity of
the collision. Interviews with Soviet officers aboard the Bezzavtnyi produced
these comments: “There was not thought of using weapons. It was the same with
Lieutenant Commander Petrov on board the SKR-6. .. . To be honest, no one
in the in the command center [i.e., on the bridge] put on his lifejacket, although
the order had been given. . .. Many members of the crew of Yorktown were on
the upper deck, smiling and waving, taking pictures of us with cameras and
videocameras. And the commanding officer of Yorktown, for example, appeared
on the bridge in parade uniform. In a word, the Americans behaved as if they
were participating in a show for entertainment.”*”

Following the incident, Undersecretary of State for Political Affairs Michael
Armacost called in Soviet ambassador Yuri Dubinin to lodge the U.S. protest,
which declared that the incident occurred as the Caron and Yorktown were
lawfully exercising the right of innocent passage.** In testimony before the Senate
Armed Services Committee, Secretary of Defense Frank C. Carlucci stated that
the U.S. operations in the Black Sea involved a routine trial of the Freedom of
Navigation program. “This particular test was not a test of their territorial waters,
but of the right of innocent passage. We did such a test 2 years ago. Under
international law, they had no right to attempt to impede our ships or to use
force. Force is only warranted when there is a threat, and these ships were clearly
engaged in innocent passage. Our view is that unless you exercise the right of
freedom of navigation, inevitably you lose it. You can always find reasons for
not doing it at some particular point in time, but if we start backing off we will
eventually lose some of the rights that are absolutely essential for our freedom of
navigation.”

The U.S. protest added that the United States was especially troubled by the
fact that the incident was preceded by threats from the Soviet ships that they had
been authorized to strike. These warnings made it clear the incident was
deliberate.” In fact, according to the Central Intelligence Agency, “The reaction
of Soviet naval forces to two U.S. warships conducting Freedom-of-Navigation
operations in the Black Sea off the Crimea yesterday probably was decided at the
highest political level. . . . This challenge to U.S. operations almost certainly was
approved by the Soviet political leadership which may have reasoned that minor
collisions would be viewed as a firm but measured response. The Soviets claim,
and have sought to enforce, a 12-nautical-mile limit for their territorial
waters . . . The incident yesterday probably was designed to demonstrate a
resolve to defend Soviet borders after such failures as the Cessna landing [by West
German Mathias Rust] in Red Square last month. The naval leadership has
come under criticism for its inability to prevent U.S. ships from operating in


584 = Index

outside sea lanes, 292-293
overflight, 201
passage of belligerent warships, 292-296
rights of foreign vessels in, 123
Arctic Basin, Soviet sea lines of communication, 226
the Area, 274, See also High seas.
definition, 297
impact on armed conflict at sea, 297
Argentina
destruction of Islas de los Estados, 318
Falklands/Malvinas invasion, 333-334
Falklands/Malvinas Island claims, 26-30
Falklands/Malvinas War, 186
General Belgrano, sinking of, 30, 315-316
Sino-Argentine fisheries conflict, 183, 184
Armacost, Michael (Undersecretary of State), 251
“Armed attacks,” definition of, 16
Armed conflict. See Law of armed conflict; Law of armed conflict at sea; Terrorism.
Armed conflict at sea
areas of hostile operations, 274-276
rights of belligerent states, 264, 276
rights of neutral states, 264, 266, 276
‘See also Law of armed conflict at sea.
Arms production and export, Soviet, 472
Amny, U.S.
biological/biochemical weapons responsibilities, 514-515
Delta Team, 423
distinguishing between legal and illegal deception, 500
permissible ruses in armed conflict, 496
Posse Comitatus prohibitions, 413-414
Art, Robert, 178
Artificial islands, installations, structures, 289, 290-291, 438, 439, 442
Ashburton, Lord, 37
Assisting state, definition of, 16
Association of Southeast Asian Nations (ASEAN), 125
ASW
disengagement, 110
prohibition in EEZ (ASWEEZ), 110-113, 116
strategic, 104, 109-114
tactical, 104
verification, 112
Asylum, political, 40-41, 42. See also Havens for terrorists,
denial, 380, 381
granting, 379
‘Western European practices, 379
Attentat clause, 379
Austin, General, 325-326
Austria
as neutral State, 525, 531
U.N. center for humanitarian affairs, 531
Aut dedere aut punire (extradite or prosecute), 380, 382, 390, 403, 404
Autointerpretation, 37-38
Axis powers, 468


Rhys-Jones 567

power to initiate a European war. Those who hold such views tend to see
relations between States in overly static terms. They ignore the contradictions
within the postwar European settlement (the division of Germany and the
political status of Eastern Europe) and fail to ask themselves why such an unnatural
condition has survived. They ignore the fact of Soviet military power and the
limits that NATO strategy has so far successfully placed on it. Without continuing
and effective restraint on that power, European governments will not avoid for
long the need to adjust their foreign and perhaps also their domestic policies in
favor of the Soviet Union.

‘We can form no judgment on the Treaty’s impact on European security
without acknowledging the fundamental asymmetry between the military
strategies (and doctrines) of NATO and the Warsaw Pact. Arms reductions may
contribute to security when strategies are symmetrical, and there is an arguable
symmetry between the strategic nuclear postures of the two superpowers, but in
INF we have a case where nuclear weapons play a fundamentally different role
in the operational concepts of the opposing sides. The enduring problem facing
NATO planners has remained essentially unchanged throughout the 40-year
history of the Alliance. It is a twofold problem. It is firstly how to counter a
massive Soviet advantage in conventional power, and secondly how to compen-
sate for a critical lack of defensive depth which leaves key political, economic,
and military centers hostage to offensive action. The answer in the past has relied
ultimately on the nuclear threat, and given the twofold nature of the problem,
it is difficult to see any credible alternative.

The task facing Soviet strategists has been quite different. Soviet strength in
the European theater has rested primarily on the conventional capability of its
ground forces. However, to make these rationally usable, whether for political
or military purposes, the military leadership has had to search for ways to
neutralize NATO’s nuclear threat. The grand strategy selected to achieve this
objective has contained political as well as military elements and has varied over
time. The military component has embraced nuclear as well as conventional
means, Nuclear weapons nevertheless have played, and continue to play, radically
different roles in the operational strategies of both sides, and in terms of total
security it appears highly improbable that INF will be evenhanded in its effects.

Flexible Response—Impact of the INF Treaty

The broad outlines ofthe NATO strategy of flexible response are well-known,
even if the details remain hazy. Spokesmen rarely say much about it, preferring
merely to correct misinterpretations rather than illuminate the truth and to rely
on Soviet perceptions to fill the gaps. Their formulae usually aim to leave the
Soviet Union with no doubt that NATO would respond, but with uncertainty
as to the nature and timing of the response. They warn particularly against any


McNeill 579

and avoid future conflict.” Its genesis was in the so-called Black Sea “bumping”
incident of February 1988, when two U.S. naval vessels entered Soviet territorial
waters of the Black Sea in an exercise under the U.S. Freedom of Navigation
program of their right of innocent passage under international law. The American.
vessels were “shouldered” by two Soviet warships, to which the United States
responded with a diplomatic protest. The USSR maintained at the time that its
internal legislation forbidding innocent passage in this area had to be honored.
It was plain to both sides, however, that the existing situation was volatile, and
it became evident that a uniform interpretation of international law on innocent
passage would provide the basis for a mutually acceptable resolution. Ultimately
the two governments reached consensus, which they set out in a joint statement;
in it the Soviet Union implicitly acknowledged that a correction to its domestic
legislation and practice was due.

A number of the specific provisions of the uniform interpretation bear
examination. It was agreed that the relevant rules of international law governing
innocent passage of ships in the territorial sea are those of the 1982 United
Nations Convention on the Law of the Sea.? These provide that all ships,
including warships, and regardless of cargo, armament, or means of propulsion,
enjoy the right of innocent passage through territorial seas afforded by interna-
tional law. Neither prior notification to nor authorization by the coastal State is
required. As to what is in accordance with international law, the 1982 Conven-
tion asserts that passage must be continuous and expeditious; it also provides an
exhaustive list of activities that would render the passage other than innocent. In
practical terms, as now jointly reaffirmed by the U.S. and the USSR, ifa coastal
State questions the innocence of a particular ship’s passage through its territorial
waters, the State is to inform the ship of its concerns and provide it a (reasonably
short) period of time to clarify its intentions or conform its conduct. If the ship
is not exercising the right of innocent passage, the coastal State may require it to
leave the territorial sea—the sole remedy for noncompliance.

The uniform interpretation on innocent passage resulted in a number of
benefits. First, the Soviet Union gave full recognition to an international right
of innocent passage by warships. Second, the Soviet Union agreed that the
navigation provisions of the 1982 Convention on the Law of the Sea were
controlling. And thirdly, the goal of the U.S. Freedom of Navigation program.
having effectively now been met, it was no longer necessary for the U.S. Navy
to conduct further such operations within Soviet (and now Russian) territorial
waters of the Black Sea. A letter from the U.S. Secretary of State to the Soviet
Foreign Minister stated: “Without prejudice to its rights to exercise innocent
passage, the United States of America has no intentions to conduct innocent
passage with its warships in the territorial sea of the Union of Soviet Socialist
Republics in the Black Sea."


Robertson 551

making the crucial decision as to whether the manifestation of surrender is
genuine and one that he is obligated to accept.

Rear Admiral Robertson is a former Judge Advocate General of the Navy.

Notes

1, WRIGHT, 1 A STUDY OF WAR 98 (1942).

2, Id, at 97. See also Mouton, History of the Laws and Customs of War up to the Middle Ages, Revue
Internationale de la Croix Rouge, Supplement 184-186 (October 1959),

3. Green, What One May Do in Combat—Then and Now, in DELISSEN & TANJA, HUMANITARIAN
LAW OF ARMED CONFLICT CHALLENGES AHEAD 271 (1991), quoting from the Bible, Joshua 6:21.

4, Id, citing Deuteroneomy 21:10.

5. Id.

6, DUCREY, WARFARE IN ANCIENT GREECE 236 (Lloyd trans. 1985) quoting Herodotus 7.9,
(Godley trans.)

7. Id.

8. Supra n, 3 at 273.

9, CONTAMINE, WAR IN THE MIDDLE AGES 266 (Jones trans. 1986).

10, KEEN, THE LAWS OF WAR IN THE LATE MIDDLE AGES 105 (1964).

11. Id,

12, Id, at 121.

13, Supra n, 9 at 291.

14. GROTIUS, THE RIGHTS OF WAR AND PEACE 328-329 (Campbell trans. 1901).

15, Id, at 329 (citing Roman practices),

16. VATTEL, THE LAW OF NATIONS OR THE PRINCIPLES OF NATURAL LAW (1758) at 280 (Fenwick
trans, 1916). Some authorities during this and even later periods asserted that in cases of siege in which a weak
defending force obstinately refused to surrender when defense was hopeless, it forfeited its claim to mercy. See,
¢.g-, CREASY, FIRST PLATFORM OF INTERNATIONAL LAW 449-451 (1876) and authorities cited therein;
LAWRENCE, THE PRINCIPLES OF INTERNATIONAL LAW 377 (Winfield ed., 7th rev. ed. 1876).

17. WOLFF, JUS GENTIUM: METHODO SCIENTIFICA PERTRACTATUM (1764), sec. 794 at 411
(Dranke trans, 1934).

18. Id., sec. 797, at 412.

19. HALL, A TREATISE ON INTERNATIONAL LAW sec. 129, at 413-414 (4th ed. 1895).

20. See, ¢.g., Id, at 414,

21. STOCKTON, OUTLINES OF INTERNATIONAL LAW 324 (1914). The “Lieber Code,” which will
be discussed further below, was promulgated to the U.S. armies as War Department General Order No. 100,
Instructions for the Government of Armies of the United States in the Field, in 1863. See n. 23.

22, See, e.g. LAWRENCE, supra n. 16 at 376.

23. U.S. War Department, General Order No. 100, 24 April 1863, Instructions for the Government of Armies
of the United States in the Field (hereinafter Lieber Code), reprinted in U.S. Naval War College, INTERNA-
TIONAL LAW DISCUSSIONS, 1903 at 115 (1904); also reprinted in SCHINDLER & TOMAN, THE LAWS OF
ARMED CONFLICTS: A COLLECTION OF CONVENTIONS, RESOLUTIONS AND OTHER DOCUMENTS
3 (rd ed. 1988).

24, Lieber Code, articles 60-62 (emphasis original). The last clause of article 60 is, of course, the passage
that drew Admiral Stockton’s criticism. seen, 21.

25, Declaration Renouncing the Use, in Time of War, of Explosive Projectiles under 400 Grammes.
‘Weight, 29 November/11 December 1868, reproduced in English in SCHINDLER & TOMAN, supra n. 23 at
101,

26, Project of an International Declaration Concerning the Law and Customs of War, annexed to Final
Protocol of the Brussels Conference of 1874, 27 August 1874, reprinted in English in SCHINDLER & TOMAN,
Supra n, 23 at 27. Itis interesting to note that in paragraph (c) the term used to describe the killing of a soldier
who is hors de combat is “murder,” indicating the criminal character of such an act.

27. Preface to THE LAWS OF WAR ON LAND, manual published by the Institute of International Law
(Oxford Manual), adopted by the Institute of International Law at Oxford, 9 September 1880, Reprinted in
SCHINDLER & TOMAN, supra n, 23 at 35,

28, Convention (If) with Respect to the Laws and Customs of War on Land, 29 July 1899, and Convention
(IV) Respecting the Laws and Customs of War on Land, 18 October 1907. (Hereafter Hague II and IV,


Chapter 14

The Right of Innocent Passage for
Warships in the Territorial Sea:
A Response to the Soviet Union*

Lieutenant Commander Ronald D. Neubauer, JAGC, U.S. Navy

F ive years have elapsed since the United Nations Convention on the Law of
the Sea (1982 LOS Convention) was opened for signature in Jamaica on 10
December 1982.’ Currently, over 150 nations have signed the 1982 LOS
Convention, and over 30 nations have ratified it. The Convention will enter
into force 12 months after the date of deposit of the sixtieth instrument of
ratification or accession with the Secretary-General of the United Nations.

US. policy regarding the 1982 LOS Convention was announced by President
Reagan in his 10 March 1983 Ocean Policy Statement. The United States would
not sign the 1982 LOS convention “because several major problems in the
Convention’s deep seabed mining provisions are contrary to the interests and
principles of industrialized nations and would not help attain the aspirations of
developing countries.”* Nevertheless, the non-seabed mining provisions of the
Convention reflect customary international law, and the President committed
the United States to recognize “the rights of other [coastal] States so long as the
rights and freedoms of the United States and others under international law are
recognized, Moreover, the United States will exercise and assert its navigation
and overflight rights and freedoms on a worldwide basis in a manner that is
consistent with the balance of interests reflected in the Convention. The United
States will not, however, acquiesce in unilateral acts of other States designed to
restrict the rights and freedoms of the international community in navigation and
overflight. .. .”°

During the Third Nations Conference on the Law of the Sea (UNCLOS III)
negotiating process, the United States and the Soviet Union pursued common
interests and goals regarding freedom of navigation, including maintaining the
right of innocent passage in the territorial sea. International commentators widely
noted that our shared goals were realized in the regime for innocent passage
reflected in the 1982 LOS Convention. However, notable Soviet naval writers
have recently published posit‘ons with a strong bias towards coastal State security

* Reprinted from the Naval War College Review Spring 1988.


Hurwitz 429

that had not yielded to less severe threats. The goals of such a threat might include
the release of imprisoned comrades, a very large ransom, a demonstration of the
government’s impotence, and perhaps televised speeches of concession by
government leaders.

¢ In the hands of a group such as the IRA that perceived straightforward
military value from the use of C/B weapons, these weapons might be used in an
attack on an enemy military or political target of extremely high symbolic or
actual importance.

* Ina less “rational” mode, C/B weapons might be used by an extremist
group that had little concern about alienating an outside constituency, but
perceived that it might, through a last desperate act or series of acts, achieve a
measure of influence. If it failed to influence events, a group could try to destroy
what it could not control, avenge its killed or tortured comrades, or simply attack
the members of a group that they despised or considered as subhuman. Finally,
one could consider the use of C/B weapons as an instrument of punishment by
desperate terrorist group facing imminent defeat and the loss of all that they had
fought for. Historically, the model for this would be the final desperate acts of
terrorism carried out or planned by the Secret Army Organization in Algeria in
1962. In the future, one could imagine an extremist Palestinian group using C/B
‘weapons in a desperate last-ditch effort to block an Arab-Israeli peace treaty.

If terrorists were to use C/B weapons in a mass casualty attack, there is no
doubt that it would be an event of singular visibility and importance. The
particular group would receive enormous publicity, and the event would be
perceived as not just another assassination, kidnapping, bombing, or hijacking.
The effect would be even greater if the attack took place in a western city such
as London, Paris, or New York. The context of the attack and the terrorists’
ability to threaten more such incidents would also influence perceptions.

If it is so plausible and potentially so effective for terrorists to use C/B weapons,
then why haven’t more groups made use of these weapons? It isn’t because C/B
agents are too difficult to make or acquire. In fact, as scary as it may seem, making
or otherwise acquiring C/B agents is well within the capabilities ofa terrorist or
other group of even modest resources.

It’s relatively easy to make violently toxic nerve agents because the techniques
by which they are made are similar to those used for insecticides, and in some
cases may simply involve taking as intermediate products insecticides or other
chemicals that can be purchased commercially and putting them through one
additional chemical reaction. The equipment needed and the chemicals are
readily available from chemical supply houses. And the chemical procedures used
are described in dozens of articles available in the open literature.

The nerve agent sarin for instance, discovered by German scientists in the late
1930s, is an order of magnitude more potent than the agents that caused so many
casualties during World War I. Yet, although preparing it might be a risky


288 Readings on International Law

session of the Conference in Montego Bay, Jamaica, in 1982, 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.”"?9 Similar statements have also been
made by the governments of Cape Verde! and Uruguay.'3! These statements
were contested by statements of the governments of Italy, France, and the United
States, exercising the right of reply,'*? and have been rejected by Ambassador
T.T.B. Koh, who was the President of UNCLOS III during the latter part of the
Conference, '* as well as by Barbara Kwiatkowska in her treatise on the EEZ.'34
In addition to its assertions 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.'*
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). . . .”"96 The German Manual likewise provides, “[A]s a matter
of principle acts of naval warfare may be performed as in the high seas also in the
exclusive economic zones of neutral or non-belligerent states.”!°” 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).'°®
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,'? 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


468 Readings on International Law

of injuring one another is not unlimited, it is primarily a statement of the
obligations of the combatants toward each other.

In contrast, the four Geneva Conventions of 1949 for the Protection of War
Victims? serve to delineate minimum standards of protection and respect to be
afforded persons placed hors de combat or taking no direct part in hostilities. This
protection covers members of the armed forces no longer capable of carrying on
the battle because of wounds, sickness, shipwreck, capture or surrender, and
civilians who have no direct influence on the war-making potential of the enemy.

As often is said of tactics, law of war conventions stem from and reflect the
conflict or conflicts most recently concluded. The Hague Conventions of 1907
address problems which arose during the Franco-Prussian and Russo-Japanese
wars, while the Geneva Protocol of 1925 banning the use of poisonous gas* and
the two Geneva Conventions of 1929° evolved as a direct result of the experience
of the belligerents in World War I. Similarly, the Geneva Conventions of 1949
are based upon abuses committed by the Axis Powers during World War II and
other law of war issues surrounding a European-style international conflict
between conventional forces in occupied territory. Only Article 3, common to
all four of the 1949 Geneva Conventions, anticipated the then-developing
problem of wars of a noninternational character fought by or against unconven-
tional forces. The resultant problem may be illustrated by the incident at My Lai
where U.S. Army Forces on 16 March 1968 assembled and executed several
hundred unarmed, unresisting men, women, and children. Despite the heinous-
ness of the offense there was no violation of the Geneva Conventions inasmuch
as the victims were citizens of the host country and U.S. Forces were present as
an ally rather than as an occupying power. This experience and others in the
more than 100 conflicts since the promulgation of the 1949 Conventions—the
civil wars in the Dominican Republic, Nigeria, the Congo, and Angola, the
Bangladesh war for independence, the British counterinsurgency campaign in
Malaya, the chronic violence in Cyprus, the Arab-Israeli conflicts and their
attendant guerrilla operations, to name a few—suggests that existing law is not
fully attuned to the conflicts of the 1960s and the 1970s.

Moreover, as with all law, the law of war was in need of an overhaul to catch
up with technological advances, Serious questions were being raised with regard
to the lawfulness of a number of weapons. Medical evacuation by helicopter,
developed by the United States in Korea and refined in Vietnam, went beyond
the aerial evacuation methods contemplated in the 1949 Geneva Convention for
the Wounded and Sick. New means for the protection of hospital ships were
available and international acceptance was necessary in the over-the-horizon
naval warfare of today. Finally, no specific agreement had been reached govern-
ing bombardment from the air as Hague Convention XIV of 1907 prohibited
the “discharge of projectiles and explosives from balloons. . . .”


134 Readings on International Law

of Soviet antiship cruise missiles. Ideally, a cordon sanitaire would be large
enough to keep all Soviet units outside their maximum effective missile ranges.
From the missile ranges shown in the table, it is apparent that a cordon sanitaire
with a radius of about 300 nautical miles against aircraft, surface ships, and
submarines would be necessary to provide full protection from the longest range
Soviet antiship missiles.

So large an area would be impractical for at least two reasons. First, a battle
group’s surveillance resources would almost certainly be inadequate to patrol
such a huge area against intruders, particularly submarines and surface ships. If
the battle group were operating near heavily traveled sea lanes and air routes, the
need to investigate large numbers of innocent air and surface units would reduce
even further the effective surveillance area. These and other factors, such as
weather and hydrographic conditions, which affect the ability of the battle group
to detect intruders, must weigh heavily in the planning of the size of a cordon
sanitaire. Second, an extremely large cordon sanitaire would be harder for the
Soviet Union to accept than a smaller area, and the reactions of Third World
nations would likely be more favorable with a smaller cordon sanitaire. The need
for political acceptability, then, requires that the cordon sanitaire be no larger
than militarily necessary.

Since targeting information from external sources is generally required for
cruise missiles more than 30 to 50 miles from the potential targets, a cordon.
sanitaire could still be effective with air, surface, and subsurface radii considerably
less than 300 miles. By keeping targeting platforms (such as surface tattletales,
Bear D aircraft, or submarines) outside of their effective targeting ranges, a cordon
sanitaire could make the longer range Soviet antiship missiles largely ineffective.
Thus the main objective of a cordon sanitaire would be to deny the Soviets
accurate targeting data with which to launch a coordinated attack on the battle
group.

Based on the factors discussed here, the radii of a cordon sanitaire (in the
absence of other external constraints) should measure about 100 nm from the
center of the U.S. formation against surface and submarine units and about 200
nm against aircraft. These distances provide 4 margin of safety in which to
intercept and turn away intruders before they could obtain accurate targeting
information. And, depending on the exact composition of the battle group, these
distances form the approximate maximum area that could be patrolled effectively.
While some Soviet missile platforms could be within striking range even though
outside a cordon sanitaire of this size, without the external targeting information
which the cordon sanitaire would deny, they would be ineffective.


Rubin 21

And even with regard to our closest allies, plans lose touch with reality when
they envisage the possible use of tactical nuclear weapons with the permission of
the territorial sovereign, but disregard the possibility that the policies of free
countries are subject to change at the whim ofan electorate accustomed to open
debate, and that have in their territories si icant groups of political activists
ready to sacrifice themselves for the principle ofno nuclear weapons use. Is France
the only country that can suddenly withdraw from NATO military cooperation
agreements? Is the United States in the climatic days of the struggle over Vietnam
the only country that can raise political activists able to elect representatives to
positions where they can control the purse strings?

It follows that the first, and most serious, misconception about international
law is the misconception that it is a minor specialty ofimportance only to learning
how to read treaties that don’t count when real interests begin to play. No. The
essence of international law as a consideration in high policy is its crystallization
of the basic rules of society; the fact that it contains the constitutional rules by
which international society lives. That constitution is written in documents of
more or less persuasiveness and practices of more or less antiquity supporting a
pattern of expectations on the basis of which statesmen and their constituents,
real people, behave. It is closely comparable to the unwritten British constitution.
Non-lawyers, or those lawyers who act as mere technicians of the law, may have
trouble perceiving the strength of the web of law in which we are all enmeshed,
but they are caught in it nonetheless, just as President Nixon was caught in the
web of American Constitutional Law when he was forced to resign the Presiden-
cy, not by policemen but by the political forces that came into play to enforce
the law. His apparent failure to perceive that the process was essentially one of
Jaw enforcement did not save him; it removed him from reality and made his
loss inevitable.

The second misconception flows from this. International law is not a system
that lacks enforcement. Most criminal law in the United States comes closer to
fitting that description, since most criminals escape justice in the United States.
On the contrary, international law is almost a self-enforcing system. But the
enforcement process is political. It depends on the perceptions of States and
individuals that the law is being violated and that it is in their interest to react to
the violation. That perception is fairly high in some countries; not very high in
the United States. Thus the moral prestige of some Scandinavian countries,
Switzerland, and some others gives them a voice in international affairs far beyond
their military and economic power.

The United States, which habitually in recent years reacts as if the law did not
exist, as if only power politics exists, seems to have lost moral power. The result
is a loss of the ability to influence events. That loss is no longer compensated by
our military and economic power relative to the rest of the world. Fortunately,
the Soviet Union has been almost as blind to the importance of moral force as



Walker 53

preferred for participation in piracy, hazarding vessels, or disobedience of lawful
regulations and orders, for example.

Thus while his study is valuable as written for a monograph on the role of
naval power and current trends in the Law of the Sea Conference negotiations,
a broader perspective would have resulted in a more comprehensive analysis.
The product would have been a weightier, and therefore perhaps less attractive
book for many readers. Sea lawyers will be happier with Sea Power as it is, to be
sure, For the professional military man who is not a lawyer, these comments are
not published to denigrate a fine monograph, but to apprise him of the need to
probe more deeply, perhaps with the aid of his judge advocate, for more definitive
answers to very complex issues.

Time will provide an additional gap in the coverage of Sea Power as the law
of the sea continues to develop along certain established lines and perhaps with
some of the new inputs discussed above. Already, the Informal Consolidated
Negotiating Text has emerged from the Law of the Sea Conference to supplant
the Revised Single Negotiating Text relied on by Janis. The accelerating pace of
legal developments should prompt text publishers in this area, as in others, to
adopt the military services’ use of looseleaf, ring-binder formats for easy insertion
of changes rather than the traditional hard-cover binding.

A Policy Science Approach to Problems of the Law of the Sea. At least
one great configurative, multidimensional policy science study of the law of the
sea has been written, '® and others are no doubt on the way or in print. McDougal
and his Yale associates took over a thousand pages to consider The Public Order
of the Oceans under this method, compared with the 109 pages of Sea Power. Even
explanations of the policy science approach to problem solving have been
lengthy. The scholarship in this field has been extensive. The policy science
approach is, of course, not the only school of jurisprudence,!® but it may be
unique in its theory about law in the social process, as distinguished from theories
of law as an entity unto itself, to be studied in a vacuum. The policy science
model is, of course, not the only relatively new method for examining compli-
cated issues and is only one of many innovative processes of informed decision-
making. Among the more familiar for the military commander are systems
analysis and game theory, often based on economics or numbers. Others include
economic analysis, decision analysis, and cost-benefit analysis, often computer-
supported, Even as such models may “offer the basis for an improved explanation
of happenings in international politics,”*° the policy-science schema may help
the decisionmaker in placing law and its role in context. These complex analytical
tools are not necessary for simple decisions, and there are the problems of keeping
the study realistic and the terminology understandable. However, use of a new
or metalanguage, as with the employment of Latin terms by doctors or lawyers
by providing agreed meanings, may promote clarity.




284 Readings on International Law

(Turkey),!°* the Strait of Magellan (Argentina and Chile,)'> the Belts and Sound
(Sweden-Denmark,)" and the Aaland Strait (Sweden-Finland).'°”

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.”!°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 regime of 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 cir-
cumstances delineated in the Convention. If Turkey is at war, Turkey has
complete discretion as to the transit of warships."

C. The Contiguous Zone. As discussed above,!"! 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.'!? 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 formula.!!3 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 con-
tiguous zone from its former distance of twelve miles from the 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 armed conflict
at sea,

The contiguous zone is, of course, overlapped by the exclusive economic
zone and the continental shelf. Insofar as the rules of armed 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


598 Index

in national security policymaking, 59
innocent passage rights. See Passage, innocent.
institutionalization, 11
judgement, 325
jurisdiction issues, 382, 438-440
law of armed conflict (law of war). See Law of armed conflict.
misconceptions, 20-21
nature of
neutrality. See Neutrality.
origin of, 5-7
prohibitions on use of force, 80
reciprocity, 40
regarding legal and illegal deception in armed conflict, 492-499
role of, 35
rules of engagement (ROE). See Rules of engagement (ROE).
self-defense provisions. See Self-defense provisions of international law.
sources of, 5-7
teachings in, role of, 8
terrorism. See Terrorism.
International Law Commission, 162, 269, 270, 284, 390
Draft Convention on the Law of the Sea, 267
International maritime disputes
Republic of China-Philippines, 184
International Maritime Organization, 11
International Seabed Authority, 67. See also Seabed.
International terrorism. See Terrorism.
Intervention
in sovereign states, 371
application of intemational law, 368-370
application of regional agreements, 371-372
authorized by regional collective security agency, 335
congressional debate in U.S., 373
‘exceptions to international and regional law, 371- 372
OAS Charter provisions, 371-372
Panama Canal Treaty provisions, 372-373
popular support for, 373
protecting nationals, 334
requested by sovereign government, 334
U.N. and OAS charters compared, 372
U.N. Charter provisions, 368-371, 372
‘Weinberger criteria, 373
Tran
boundary agreements, 87
fishing claims, 89
Iran-Iraq War, 264, 503, 511
island disputes, 89
Kharg Island, 87
Kuwait Regional Conference, 93
Law of the Sea, approach to, 90-91
policy on straits, 92
release of hostages, 22
seizure of U.S, Embassy and hostages, 40, 422-423, 437, 456
Shatt-al-Arab crisis, 88
Tehran Conference on Human Rights, 469
territorial sea claims, 85-86, 88
UN. Law of the Sea Conference participation, 90-91
U.S. vs, Iran, 69
UNCLOS III, 91-92


Farrell 403

Every State has the duty to refrain from any forcible action which deprives people
above in the elaboration of the present principles of their right to self-determina-
tion and freedom and independence. In their actions against, and resistance to,
such forcible action in pursuit of the exercise of their right to self-determination,
such peoples are entitled to seek and to receive support in accordance with the
purposes and principles of the Charter.'°

Despite these problems, some international conventions that have dealt with
one or another aspect of the terrorism problem have been adopted. These
conventions are briefly summarized below:

— The Tokyo Convention (Convention on Offenses and Certain Other Acts
Committed On Board Aircraft): Signed in September 1963, it did not come into
force until December 1969. It is a very limited accord that does no more than
set a few jurisdictional ground rules and require the contracting States to (1) make
every effort to restore control of the aircraft to its lawful commander and, (2)
arrange for the prompt onward passage or return of the hijacked aircraft together
with its passengers, cargo, and crew.

— The Hague Convention (Convention for the Suppression of the Unlawful
Seizure of Aircraft): Signed in December 1970, it came into force 10 months
later. Its principal feature is that it requires (albeit with important discretionary
exceptions) contracting parties either to extradite or to prosecute skyjackers.

— The Montreal Convention (Convention for the Suppression of Unlawful
Acts Against the Safety of Civil Aviation): Signed in September 1971, it came
into force in January 1973. Covering the sabotage or destruction of aircraft or
air navigational facilities, it requires the contracting parties to make such offenses
subject to severe penalties and establishes the same extradition-or-prosecution
system for offenders as in The Hague Convention.

— The Organization of American States Convention (Convention to
Prevent and Punish Acts of Terrorism Taking the Form of Crimes Against
Persons and Related Extortion that are of International Significance): Signed in
February 1971, it entered into force in October 1973 (the United States is a
signatory but not a party). With its emphasis on the prevention and punishment
of crimes against persons to whom the State owes a special duty of protection
under international law, it was a precursor of the U.N. convention concerning
the protection of diplomats, cited below. It also employs the Hague Convention
extradite-or-prosecute formula,

— The United Nations Convention on the Prevention and Punishment of
Crimes Against Internationally Protected Persons Including Diplomatic Agents:
Signed in December 1973, it requires the contracting States to establish certain
specified acts against protected persons (or against the official premises, private
accommodations, or means of transport of such a person), as crimes under internal
law. Once again, the Hague Convention’s extradite-or-prosecute formula ap-
plies.


182 Readings on International Law

of EEZs may prove beneficial to naval powers exercising naval diplomacy.'®
Regardless of the pros and cons, the 1982 LOS Convention does force all coastal
States, both maritime powers and others, to rethink their naval forces and the
toles and missions the navies will play as well as the interaction and implications
of naval planning with other national policies and postures.

From the perspective of global naval powers, Booth feels that “the 1982
Convention imposes no interference on military activities in EEZs”"” and “naval
diplomacy would not in fact come to an end: it would only become more
complicated.”1® But he also warns that “apprehension is justified in the longer
term” if the sense of territoriality among coastal States grows towards their EEZs,
and this sense is expressed in demands for greater control over foreign shipping,
including naval vessels, accompanied with demonstrations of political and
military muscle.!? Booth’s warning or apprehension is clearly supported by
analyses of fisheries disputes both before and after the 1982 LOS Convention.
These disputes reflect a growing sense of property rights over the natural
resources within the EEZ and a nationalistic view of the protection of. EEZs.°

To most small-navy States, however, the new rights and the resulting
responsibilities over immense ocean areas and the natural resources deriving from
the 1982 LOS Convention have not only created new tasks and requirements
but also sensitized them to the need and/or perception of protecting their newly
accrued territory and property. “Governments will have to show that they intend
to defend their rights in what they regard as their own patches of sea, if not
beyond, and there is no more effective way of doing this than by deploying
warships. Warships are gadgets of sovereignty.”*! The functions or missions of
warships in relation to the law of the sea include: new EEZs to be patrolled, good
order to be maintained, and badge of maritime sovereignty to be displayed. For
global navies or naval powers, the effect of the 1982 LOS Convention might
mean only a change of emphasis as argued by Booth.” To small navies, however,
these functions or missions can well be new in both a conceptual and physical
sense. While global navies are familiar with highly political exercises in sensitive
foreign waters and the possible diplomatic implications these exercises carry, a
small-navy State may find it very uncomfortable or even difficult to contemplate
and plan a naval maneuver in its own waters so as to perform a constabulary
mission and also send a political message to potential foreign intruders. The force
structure of a small-navy State might not be capable of performing the kind of
mission its political leaders contemplate. Or, the small-navy State may not have
the right combination of forces to conduct certain delicate missions in its waters
when the situation requires.

The new ocean regime definitely gives coastal States some benefits in both
economic and political forms. It also brings the coastal States new tasks and
requirements that cannot be fulfilled or met simply by a change of priority or
emphasis. To most coastal States, this means the refit or overhaul of their existing


294 Readings on International Law

and to become “neutral waters” with all the consequences that that term 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. Ifthe narrow Norwegian territorial sea was a “covered
way” enabling German submarines to transit to and from the high seas sheltered
from attack by British naval and air forces,!TM 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-four-hour rule of Hague x's
and increases manifold the burdens imposed on a neutral State by the obligation
to exercise surveillance of its neutral waters.’ 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 permitted if archipelagic waters are analogized to the territorial sea
in this respect.'67 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 affirmative duty to police its archipelagic
‘waters to ensure that the inviolability of its neutral waters is respected. Ifa neutral
nation is unable or unwilling effectively to detect and expel belligerent forces
unlawfully present in its archipelagic waters, the opposing belligerent may under-
take 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 o of archipelagic waters and airspace and the use of proportional.
force as necessary.

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 chan-

nels.”!”° 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.”'”! As previously stated, archipelagic sea lanes
passage, in legal terms, is essentially identical to transit passage through straits. 172
In exercising their rights of archipelagic sea lanes passage, 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


612 Index

s

Salamis, Battle of (480 B.C.), 492
Sanctions, for States providing haven to terrorists, 381-382
Sanctuary States. See Havens for terrorists.
Sandanistas, 377, 378, 383
Sandino, Augustino, 473
Sarin nerve agent, 429-430
Sassoon, Siegfried, 345
Satow, Sir Emest, 298
Saudi Arabia
approach to the marine pollution problem, 93
Aramco, 88
boundary agreement with Iran, 87
Convention on the Territorial Sea and Contiguous Zone of 1958, 92
fishing claims, 89
Kuwait Regional Conference, 93
Law of the Sea, approach to, 90-91
“principle of contiguity,” 89
Saudi Arabia-Bahrain Agreement of 22 February 1958, 87
Saudi Arabia-Kuwait Agreement of 7 July 1965, 87
territorial sea claims, 86, 88
UN. Law of the Sea participation, 90-91
UNCLOS III, 91-92
Scandinavian states, claim to Baltic and western waters, 266
Schilt, Marine tst Lt. Christian F., 473
Schwartzstein, Stuart, 505
Scoon, Governor-General of Grenada, 322-323
SDI, linkage to INF Treaty, 566
Sea of Okhotsk, 232, 237, 239, 560
Seabed
“common heritage of mankind,” 148, 152, 156, 274
International Seabed Authority, 91, 147, 151, 154, 159
law of neutrality, 290-291
manganese nodules, 147, 163
tary listening devices, 98, 103, 104-105
military use of, 48, 103, 291
mining, 63-64, 67, 69-71
mining as an issue within UNCLOS III, 199
mining provisions of LOS Convention (1982), 297
mining technology, 149
reservation for peacefil purposes, 98, 102
resources, 86
Seabed Treaty of 1971, 291
Second Hague Peace Conference of 1907, 276
Security zones. See Exclusion zones.
Selden, John, 265
Self-defense
anticipatory, 13-14, 15, 316, 331, 335-337, 340
as a justification for using force, 332
Caroline case, 32, 332, 336, 459
coercion, 370, 459, 461, 463
collective, 14-15, 30, 136, 333, 334, 335
definition of, 23, 37, 82, 483
defense of offhore structures, 444
elements of necessity, 82, 336-337, 370, 459-460, 461, 463, 483
elements of proportionality, 23, 370, 453, 461, 463, 483



90 Readings on International Law

Strait of Hormuz to be on the alert for possible terrorists activities. Lloyds of
London identified the Gulf as a “war zone” requiring additional insurance.

The success of pollution control efforts and the Action Plan of the Kuwait
Regional Conference are directly tied to the cloud of uncertainty hanging over
the Gulf following the Iranian Revolution.

General Approaches to the Law of the Sea. While the relationship between legal
developments and regional context is important, insights into the Iranian and
Saudi approaches to the law of the sea can be realized by exploring the nature of
their participation in the United Nations conferences on the law of the sea. Iran
and Saudi Arabia have participated at all three U.N. law of the sea conferences,
Their policy statements are revealing.

At the 1958 conference the Saudi delegate, Mr. Shukairi, suggested that certain
rules of international law were outmoded and generally reflected the interests of
only a few states. He indicated that international law should reflect ’the collective
will of all States participating as sovereign States and possessing sovereign
equality," with the developing States also taking an active part in the progressive
development and codification of the law of the sea.!® The Saudi delegate asserted
that “it was only after the remnants of the antiquated rules of international law
had been swept away that progressive development of that law could take
place.”!? Mr. Shukairi maintained that the “vital interests” of all States must be
“reflected in whatever code” was adopted.

Although Saudi Arabia identified itself as a developing State and charged that
some laws were “antiquated” and based on the “customs and usage” of only a
few States, it did not challenge the basis of modern international law. Rather,
Saudi Arabia maintained that the very foundations of international law must be
considered, and that the origin of such concepts as “territorial sea” must be
reviewed.7° Saudi Arabia went to great lengths to indicate that its actions were
“in conformity with modern trends and practice as well as with the (International
Law) Commission’s conclusions.”2

At the 1958 and 1960 conferences Saudi Arabia often challenged the positions
assumed by the United States and Britain, two maritime powers. Saudi Arabia,
however, did not challenge their “Western” law, but rather the American and
British interpretations of it. Saudi Arabia often cited American and British
precedents and quoted Western jurists, such as Philip Jessup, to support its
position.

Iran’s general approach toward the law of the sea as expressed at the 1958 and
1960 conferences was not unlike that of Saudi Arabia. Iran recognized a basic
cleavage between the interests of developing States and those of maritime powers.
Tran called attention to certain inequalities that resulted in “obsolete customs and
practices” that were “enshrined in conventions to which most of the states of
Asia and Africa were not parties.”*° Iran opposed certain prescriptive rights


Hall 495

antecedent constituted perfidy or ruse will almost always apply to modern naval
warfare.

Pertidy Defined

By far the most complicated step in the method is determining whether a
proposed deception falls within the NWP 9 definition of perfidy. Although NWP
9 is not the only source which defines perfidy, it is the best starting point for the
naval commander. It states that acts of perfidy are “deceptions designed to invite
the confidence of the enemy to lead him to believe that he is entitled to, or is
obliged to accord, protected status under the law of armed conflict, with the
intent to betray that confidence.”!° The requirement for absolute good faith is
obvious from this definition. Furthermore, this definition appears to require a
specific intent to betray the enemy’s confidence in order for a violation to have
occurred, which would seem to excuse the commander for accidental violations.

Many commentators have attempted to delineate where ruse ends and perfidy
begins. One of the most noteworthy was Henry W. Halleck, who in 1861 stated
the following: “Whenever we have expressly or tacitly engaged to speak truth
to an enemy, it would be perfidy in us to deceive his confidence in our sincerity.
But if the occasion imposes upon us no moral obligation to disclose to him the
truth, we are justifiable in leading him into error, either by words or actions. . . .
It is the breach of good faith, express or implied, which constitutes the perfidy,
and gives to such acts the character of lies.”!

Halleck’s definition of perfidy, however, has been criticized for emphasizin;
too much of one particular kind of deceit, that being false communications."
However, it is useful to read Halleck’s definition in conjunction with that
proposed by William E. Hall in 1908: “As a general rule deceit is permitted
against an enemy; and it is employed either to prepare the means of doing violent
acts under favorable conditions, by misleading him before an attack, or to render
attack unnecessary, by inducing him to surrender, or to come to terms, or to
evacuate a place held by him. But under the customs of war it has been agreed
that particular acts and signs shall have a specific meaning, in order that belligerent
may carry on certain necessary intercourse; and it has been seen that persons and
things associated with an army are sometimes exempted from liability to attack
for special reasons. In these cases an understanding evidently exists that particular
acts shall be done, or signs used, or characters assumed, for the appropriate
purposes only, and it is consequently forbidden to employ them in deceiving an
enemy.”

Three examples will serve to demonstrate the breach of good faith required
for an act to be considered perfidious. The first is the misuse of an internationally
protected sign, such as the Red Cross emblem. NWP 9 states that “misuse of
protective signs, signals, and symbols in order to injure, kill, or capture the enemy


Stavridis 153

new technologies will have to be developed. We cannot conceive that any
American industry will undertake this major endeavor, knowing that what it
invents and brings into being will immediately be transferred to its competitors.
‘We as their advisors could not in good faith recommend such action.”

The influence of powerful lobbying groups such as the Chamber of Com-
merce and large individual corporations is immense. In particular, four major
consortia of large, multinational corporations have already staked a claim in the
deep seabed as “pioneer investors.” These include:

Kennecott Consortium: Sohio, Rio Tinto-Zinc, BP, Noranda Mines, Mit-
subishi, Kennecott.

Ocean Mining Associates: US Steel, Union Minere, Sun Chemicals, Ente
Nazionale Idrocarburi.

Ocean Management, Inc.: INCO, Metallgesellschaft, Preussag, Salzgitter,
SEDCO, Deep Ocean Mining.

Ocean Minerals Co,: Standard Oil, Lockheed, Billiton (Shell) BKW Ocean
Minerals.

Such large, multinational groups have brought considerable pressure to bear
in the various Western countries opposed to the marine technology transfer
provisions of the Law of the Sea Treaty. They will continue to oppose the process
even if their individual governments sign the Treaty.

Problem

The problem with instituting marine technology transfer via the Law of the
Sea Treaty is obvious—the Western countries and multinational corporations
that currently hold the technology have little desire to share it with the
developing countries, at least as part of a mandated transfer. On the other hand,
the industrial countries and the companies do want the formal, legal protection
offered under the aegis ofa widely supported Law of the Sea Treaty. Additionally,
the West is very interested in other parts of the Treaty that guarantee vessel
(commercial and warship) passage rights, define coastal boundaries, establish
exclusive economic zones, and ensure overflight above strategic straits. Finally,
from a philosophical standpoint, the West is in favor of technology transfer in
order to promote general global advancement and raise the standard of living in
many developing countries, so long as the transfer of technology is accomplished
by an “orderly and efficient” means. The developing countries are strongly in
favor of the transfer process as outlined in the Law of the Sea Treaty since they
are the prime beneficiaries of the system. Both sides agree that the fundamental
question of technology transfer is a key element in North-South relations, and
most of the countries involved believe that the United Nations is an acceptable
forum for working toward a solution.


112 Readings on International Law

in the ASWEEZ scheme stopping such behavior is mandatory. A final difference
is that the MccGwire scheme awaits the building of SUMs, or a major decision
to concentrate the seaborne deterrent in such vehicles. ASWEEZ does not
depend upon such decisions. SUMs would be a possible consequence, not a
necessary precondition for ASWEEZ.

ASWEEZ has several additional advantages over other ideas that have sought
to control strategic ASW:

* Itshould be easier to negotiate. There is no actual disarmament. There need
be no wrangle over numbers, one of the familiar stumbling blocks in arms control
negotiations. Definitional problems are present, but by the standards of the day
should be relatively small.

* Verification should not be a major problem. The superpowers can have
some confidence in verifying whether adversary ASW efforts are taking place
within their EEZs. In contrast, they cannot feel confident that the adversary’s
SSBNs will necessarily remain close to home, as is expected in the MccGwire
scheme. Existing SSBNs are big investments and are unlikely to be scrapped, and
any transformation to a spartan diesel force might take many years.

* ASWEEZ should be politically acceptable to third parties. The scheme is
tied to the generally accepted 200-mile line rather than any other sanctuary
demarcation line. Other lines might leave Norway stranded behind an advanced
Soviet maritime frontier. In ASWEEZ, Norway’s geopolitical position remains
unchanged. Nor need the other neighbors of the Soviet Union fear that Soviet
warships are being left supreme in any but legally accepted Soviet waters.

* ASWEEZ maintains SSBN flexibility. The scheme envisages that SSBNs in
existence will retain their present flexibility to go wherever their planners think
desirable. This would minimize the domestic opposition that would face the idea
of imposing strict geographical limitations on their use; such limitations would
negate what has been one of the chief selling points of SSBNs over the last 20
years. In practice, the existing SSBN forces may choose to stay in well-protected
coastal waters, and may in time wither on the vine into MccGwire’s spartan force,
but under an ASWEEZ regime this would be a matter of choice, not necessity.
The choice might well be made because of the advantages of staying in
well-protected coastal waters from which adversary ASW forces are excluded."

* ASWEEZ does not demand any major shift in nuclear doctrine. The
MccGwire scheme in part rests on a belief that stability is best served by mutually
assured destruction rather than a more explicit fighting strategy. Unfortunately
for this scheme, there has been a convergence of superpower strategies toward
the latter. ASWEEZ does not require a change in strategic doctrine, apart from
a willingness to trade a loss in damage-limitation capability for a gain in assured.
destruction. This should enhance deterrence. However, by leaving SSBNs to
roam free, ASWEEZ still leaves open the option (for good or ill) of using the


Takahashi 237

region—but that same issue also determines the military position of the Soviet
Union in Northeast Asia.

Strategic Importance of the Kuriles. The Kuriles is the gate protecting the Sea of
Okhotsk. For the Soviet Pacific Fleet, the Sea of Okhotsk is the bastion for its
Delta IIIs and other SSBNs, the sea sanctuary for units deployed at Petropavlosk,
and the passageway to and from the major military port of Vladivostok. For the
US. Pacific Fleet, the Kuriles is the gate through which to launch an anti-SSBN
campaign in this bastion. As Michael Thompson states, “the naval value of the
Kuriles is found as much in the twenty navigable straits as in the islands
themselves, linking the Sea of Okhotsk, Sakhalin Island, and the Pacific
Ocean,”"6

Japan, of course, living under the protective umbrella of the U.S.-Japanese
Security Treaty, sees its military interests as integral with those of the United
States. The Japanese Self-Defense Forces (SDF) can view the Kuriles as a
two-way gate. Closure of the Kuriles by the JSDF can bottle up elements of the
Soviet fleet in the Sea of Japan, making them vulnerable to allied destruction.
On the other hand, closure of the Kuriles by Soviet forces would be part of a
strategic option, as David Rees notes, of “enveloping and interdicting the sea
lanes which sustain Japan and connect that country with its sources of energy
and raw materials in the Middle East and North America.”"”

The Kuriles fall within the Soviet “sea control” zone—an area which the
Soviets will seek to dominate in wartime. According to the 1989 Department of
Defense (DoD) annual report, Soviet Military Power, sea control in the Sea of
Okhotsk and the Sea of Japan “represents the Soviets’ highest priority regional
objective.”"®

Soviet ground forces in the Far East TVD are expected to be reduced in
coming years, but not in the areas opposite Japan, in the Northern Territories,
on Sakhalin Island, or on the Kamchatka Peninsula. According to the 1990 DoD
annual report, the Soviet Pacific Fleet will remain relatively constant in the 1990s,
but its amphibious lift capability will continue to grow.'? Michael Thompson
notes that the Kuriles could become an excellent platform for staging an assault
on Hokkaido by “amphibious assault, parachute drop, heliborne assault, or a
mechanized thrust across the 17 kilometer frozen channel (winter only) separat-
ing Kunashir from Point Notsuke.””?

The Japanese Defense Agency 1989 White Paper estimates the combined
troop strength in the Northern Territories to be the equivalent of a division.”4
A permanent military base exists on Itorup Island (Etorofu in Japanese) where
MIG-23 Flogger aircraft are deployed; Shikotan has facilities for handling assault
helicopters. The White Paper states, the “Soviet Union has brought into these
islands not only weapons that are normally possessed by its divisions, such as
tanks, APCs, various artillery pieces, anti-aircraft missiles and MI-24 Hind attack


Rubin 31

the common interest of all in the integrity of the system and help to destroy it.
Ifit is in America’s interest to support the system and to find a common language
with which to discuss it with the other states interested, we must be aware of it
and the limits it places on British action. Even if others are less convinced than
we of the virtues of stability and collective enforcement of the law through
political and military pressures, it is difficult to see how we can convince them
of their ultimate interest if we lose sight of it ourselves. That would leave the
field open to Soviet and other spokesmen to undermine the very basis of the
interest structure on which we rely, much more than our overt alliances, to
oppose the destabilizing actions of the Soviet Union and various revolutionary
groups that seize on national grievances to support local movements seeking to
identify their particular local aims with xenophobic anti-Americanism.

In sum, the world is a subtle and complicated place in which the tools of
international law provide a framework for helping to evaluate national interest
that can substantially change the policy evaluations of decision makers to the
long-range favor of the United States. Failure to use those tools places us in a
simpler world in which our leadership position is threatened by the mispercep-
tions of others. If we suffer the same misperceptions we seriously undercut our
ability to influence events and we bring the horrors of war and economic
dislocation closer. And we fail in our duty to help safeguard the national security
of the United States.

Professor Rubin was serving as the Charles H. Stockton Professor of International Law at the
Naval War College when this article was first published.

Notes

1, Rand Corp, The International Law of Armed Conflict: Implication for the Concept of Assured Destruction
(R-2804-FF January 1982).

2. Rubin, The Panama Canal Treaties: Locks on the Barn Door, 1981 ¥.B. World Aff. 181.

3. Reisman, The Regime of Straits and National Security: An Appraisal of International Law Making, Am. J.
Int'l L, 18 Ganuary 1980).

4, Rubin, Some Legal Implications of the Pueblo Incident, Int'l & Comp L.Q. 961 October 1969).

5, Rubin, Sunken Soviet Submarines and Central Intelligence; Laws of Property and the Agency, Am. Int'l L.
855 (October 1975).

6. The Foreign Sovereign Immunities Act of 1976, U.S.C. §§1330, 1602, provide that a foreign State
shall not be immune from the jurisdiction of courts of the United States in any case in which the action is based
on “an act outside the territory of the United States in connection with a commercial activity of the foreign
State elsewhere and that act causes a direct effect in the United States” (28 U.S.C. §1605 a (2)). Italso provides
that a foreign State shall not be immune “in any case in which a suit in admiralty is brought to enforce a
maritime lien against a vessel or cargo of the foreign State, which maritime lien is based upon a commercial
activity of the foreign State” (28 U.S.C. §1605b). “Commercial activity” is defined in the Act to include “a
particular commercial transaction” and says further that “The commercial character of an activity shall be
determined by reference to the nature of the . . . particular transaction or act, rather than by reference to its
purpose” (28 U.S.C.§1603A(d)). Legal questions of interpretation are only now beginning to make their way
to the Supreme Court. But foreign governments in their own courts are not bound to hold to American
interpretations of an American statute. We have probably lost our ability to protest effectively a foreign arrest
ofan American Navy vessel in Admiralty under a lien alleged to have been created in a dispute arising out of



Chapter 6

Law and Conflict at Sea*

Lieutenant Roger D. Wiegley
JAG Corps, U.S. Navy

Whether or not the negotiating texts of the Law of the Sea Conference result in a “new”
law of the sea, it is becoming clear the “the potential for conflict between developing coastal
states and the naval powers is significant enough that the latter should begin to develop policies
Sor meeting challenges to their military uses of the oceans.” This paper reviews some of the
areas of potential conflict and suggests several points to be considered in the development of

policy.

here is a burgeoning literature that deals with military implications of the
new law of the sea regime. Within that literature, the range of predictions
could hardly be wider. One author has argued that the rules emerging from the
Third United Nations’ Conference on the Law of the Sea (UNCLOS III) signal
the exclusion of naval forces from all but friendly waters.! But another
knowledgeable writer has hypothesized that naval diplomacy will become more
effective because deployed forces will be able to cross new symbolic “borders.””
Despite the disparate conclusions, however, the analysts have with few excep-
tions projected a new era in which “freedom of the seas” will be a concept under
ever-increasing challenge.>
Tronically, the negotiating texts produced at UNCLOS III do not themselves
bode ill for the naval powers. In the latest text, the Revised Informal Composite
Negotiating Text (RICNT),' only two provisions are clearly restrictive from the
perspective of the naval strategist: the 12-mile territorial sea and the recognition
ofa special status for waters lying between the islands of archipelagoes. Yet even
before the RICNT, the 12-mile territorial sea was becoming, if it was not in
fact, a custom of international law,” and the concept of “archipelagic waters” was
also gaining support.

Naval Concerns. What, then, has caused so much concern to the proponents of
unrestricted mobility for naval forces? Two things: first, that a convention similar
to the RICNT, if adopted, would become a source of dispute rather than an
established order and second, that a new convention would simply be the first
in a progressive series of demands by developing coastal States.’ Whether such

* Reprinted from the Naval War College Review January-February 1980.


xii

The Naval War College takes pride in its commitment to academic freedom.
‘Writings that have appeared in the Naval War College Review and the “Blue
Book” series hew to no official policy agenda. Indeed, the value of an article or
essay may reside particularly in its articulation of positions quite at odds with the
conventional wisdom. As a consequence, it should be understood that while the
opinions expressed in this volume are those of the individual authors and not
necessarily those of the United States Navy nor the Naval War College, they
collectively provide a valuable contribution to the study of international law.

On behalf of the Secretary of the Navy, the Chief of Naval Operations and
Commandant of the Marine Corps, I extend to the editors and the contributing
authors of this informative and provocative compilation our gratitude and
thanks.

James R. Stark
Rear Admiral, U.S. Navy
President, Naval War College


Robertson 309

and freedom of navigation is assured to ships of all flags,” 29 November 1984, English translation reprinted in
241L.M. 11 (1985).

106, See Treaty for the Redemption of the Sound Dues between Denmark and a number of other
European States, 14 March 1857, reprinted in English in 116 Consolidated Treaty Series (Parry), 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 1857, U.S. Statutes at Large,
v. 11, 719, reprinted in English in Parry, v. 116, 465. It should be noted that the ICJ is currently seised of a
case concerning navigation through the Belts.

107. See Convention Relating to the Non-Fortification and Neutralization of the Aaland Islands, 20
October 1921, League of Nations Treaty Series, v. 9, 213, reprinted in 17 Am. J. Int'l. 1 (1923).

108. RAUCH, supra n. 69, at 53. the two authorities cited in opposition are Moore in The Regime of Straits
and the Third United Nations Conference on the Law of the Sea, supra, n. 98 at 111, and Barabolja in MODERNES
SEEVOLKERRECHT, 230 published by the Academy of Science of the USSR, translated into German by
Rauch, 1, (1978). 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 n. 61, para. 7.3.5.

110, Montreux Convention, supra n. 104, articles 19 and 20; see also, RAUCH, supra n. 69, at 51.

111. See text supra nn. 53-55.

112, Territorial Sea Convention, supra n, 34, article 24; LOS Convention, supra n. 2, article 33,

113. See text, supra at nn. 54 and 55.

114, Supra at n. 46.

115. RAUCH, supra 69, 33.

116, LOS Convention, supra n. 21, article 56.

117. See Oxman, supra n. 8, at 848; see also Robertson, Navigation in the Exclusive Economic Zone, 24 Va.
J. Int'l L. at 874-875, and note 52.

118, For a fall discussion of this issue, which has been frequently debated in the legal literature, see
KWIATKOWSKA, THE 200 MILE EXCLUSIVE ECONOMIC ZONE IN THE NEW LAW OF THE SEA 230-235
(1989), (cited hereinafter as KWIATKOWSKA).

119, Richardson, Power, Mobility and the Law of the Sea, Foreign Afzirs, 902 at 916 (Spring 1980).

120. Professor Oxman concludes that the addition of the phrase, “other internationally lawful uses,
is the “functional substitute for the ‘inter alia’ in article 87.” Oxman, supra n. 8, at 837.

. Id. at 837-838.

. See Oxman, supra n. 8.

. RAUCH, supra n, 69, at 34, quoting from 70 SVERIGES FLOTTA, 8-11 (1974).
. See, for example, UNCLOS III OR, supra n. 77, v. XVII, at 54, para, 224,

. RAUCH, supra n. 69, 36.

). Id, at 37.

127. Id., quoting from SCOTT, THE PROCEEDINGS OF THE HAGUE PEACE CONFERENCES, THE
CONFERENCE OF 1907 288-290 (1920), I. Report of the Third Commission to the Conférence, meeting of
9 October 1907 (Annexes).

128 Id, at 38.

129, Statement of the delegate of Brazil, Plenary, 187th Meeting, 7 December 1982, UNCLOS III OR,
supra n. 77, v. XVIL, at 40, para. 28,

130. Statement of the representative of Cape Verde, 188th Meeting, Plenary, UNCLOS III OR, supra n.
77, v. XVII, at 62, para. 124,

131, Statement of the representative of Uruguay, 192nd Meeting, Plenary, UNCLOS Ill OR, supra n.
77, v. XVI, at 120, para. 55.

132, Italy, Statement made in the exercise of the right of reply, 7 March 1983, UNCLOS III OR, supra
n. 77, v. XVII, at 241-242; France, Statement made in the exercise of the right of reply, 12 May 1983,
at 241; United States of America, Statement made in the exercise of the right of reply, 8 March 1983,
at 243-244,

133, Koh, inJON M. VAN DYKE, CONSENSUS AND CONFRONTATION: THE UNITED STATES AND
THE LAW OF THE SEA CONVENTION 304 (A Workshop of the Law of the Sea Institute, Honolulu, Hawaii,
January 9-13, 1984) (1985).

134, See KWIATKOWSKA, supra n. 118, at 211.

135. See KWIATKOWSKA, id., n. 118, at 203.

136. Canadian Manual, supra n. 71, para. 703.

137. German Manual, supra n. 72, para. 1011. The German Manual adds a cautionary note that, “The
rights of coastal and archipelagic states must, however, be taken into due consideration.” Id. A similar cautionary
statement is carried in a footnote in the Canadian Manual. Supra n. 71, para. 703, n. 1.

138. NWP 9, supra n. 61, para. 7.3.



414 Readings on International Law

at the time it was argued that the Army had been used improperly to execute
local laws, control strikes and collect taxes, and that these “improper” actions
had been performed at the behest of U.S. attorneys and law enforcement agents.

Various Army reports were cited showing that in 1871 four companies helped
collect revenue in New York, that from 1871 through 1875 there were more than
441 reported incidents in Kentucky in which soldiers were called out to aid federal
and state law enforcement authorities, and that in 1876 at least 71 detachments of
soldiers aided civil authorities.*

Originally, the Posse Comitatus legislation prohibited only the Army from
aiding civil authorities. In 1956 the Act was added to Title 18 of the U.S. Code,
and the Air Force was included to reflect earlier legislation separating the two
services. There has been a good deal of controversy resulting from the fact that
the Navy (to include the Marine Corps) has not been specifically included. While
there was extensive debate for years on this issue, the Secretary of the Navy
clarified the matter in 1974 when he issued a directive forbidding Navy and
Marine Corps personnel from enforcing or executing local, state, or federal civil
law in violation of the Posse Comitatus Act”

The U.S. Coast Guard is under the jurisdiction of the Navy during war and
therefore would be controlled by the Act. However, during times of peace it is
not completely clear exactly how the Act would apply inasmuch as the Coast
Guard is under the jurisdiction of the Department of Transportation. '°

As indicated earlier, the President could call into federal service the militia of
any state and such armed forces as he considers necessary to suppress “unlawful
obstructions, combinations or assemblages, or rebellion” against the authority of
the United States or any state in particular.'

This authority is contained in the Constitution which states (italics added):

. He shall receive ambassadors and other public ministers; he shall take care that the
laws be faithfully executed, and shall commission all the officers of the United States.”

The United States shall guarantee to every State in this Union a republican form
of government and shall protect each of them against invasion; and on application of
the legislature, or of the executive (when the legislature cannot be convened)
against domestic violence.”*

‘No state shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any State deprive any person
of life, iberty, ot property without due process of law; nor deny fo any person within
its jurisdiction the equal protection of the laws."*

The following federal statutes allow the President to use federal troops under
certain conditions (italics added):

‘Whenever there is an insurrection in any State against its government, the President
may, upon request of its legislature or of its governor if the legislature cannot be


TABLE OF CONTENTS

FOREWORD ... 1... eee eee ee te ee ee
PREFACE 2.1... ee ee ee ee ee ee ns

PART ONE—THE ROLE OF LAW IN THE
INTERNATIONAL SYSTEM .... 2... - 2-02 ee eee

CHAPTER 1—CONTEMPORARY INTERNATIONAL LAW:

RELEVANT TO TODAY’S WORLD?
Horace B. Robertson, Jr. (Summer 1992) .........4-

CHAPTER 2—MISCONCEPTIONS OF LAW AND
MISGUIDED POLICY
Alfred P. Rubin (Nov-Dec 1982)... 6.6... eee ee ee

CHAPTER 3—RULES OF THUMB FOR GUT DECISIONS:
INTERNATIONAL LAW IN EMERGENCIES
Alfied P, Rubin (Mar-Apr 1982)... 0-02-0000 eee

PART TWO—OCEANS LAW... 2. ee ee eee ee eee

CHAPTER 4—SEA POWER AND THE LAW OF THE SEA:
THE NEED FOR A CONTEXTUAL APPROACH
George K. Walker (Spring 1978) ........ 0.000 0e

CHAPTER 5—LAW OF THE SEA
Elliot L. Richardson (May-Jun 1979) . 2... 22. ee eee

CHAPTER 6—LAW AND CONFLICT AT SEA
Roger D. Wiegley (Jan-Feb 1980)... ......-2-+20-

CHAPTER 7—-REGIONALISM AND THE LAW OF THE SEA:

THE PERSIAN GULF PERSPECTIVE
Charles G. MacDonald (Sep-Oct 1980) ...........-.

CHAPTER 8—LAW AND STRATEGY IN
NORTHERN WATERS
Ken Booth Jul-Aug 1981)... 2... ee ee eee eee

19

33

45

47

63

73

85

95


Terry 539

Arms Control and Disarmament Agency, ARMS CONTROL AND DISARMAMENT AGREEMENTS 214-219
(1990).

10, Id, Article 1.

11. Though both appeared the same year, the ENMOD Convention and 1977 Geneva Protocol are not
directly related. The 1977 Geneva Protocol I addresses both means and methods of international armed conflict
and protection of victims of intemational armed conflict. It is therefore a melding of The Hague Law (means
and methods) and the Geneva Law (protection of victims of warfare), The ENMOD Convention addresses
only restrictions on changes to the environment in a widespread, long-lasting, or severe manner (Article I) by
military or any other hostile use of environmental modification techniques. While the Conference of the
Committee on Disarmament (C.C.D,), an arm of the U.N., sponsored the ENMOD Convention, the
International Committee of the Red Cross (I.C.R.C.) in Geneva sponsored the negotiations on the 1977
Geneva Protocol, just as it had thirty years earlier for the 1949 Geneva Conventions.

Protocol I Article 35(3) (Basic Rules) states, “Itis prohibited to employ methods or means of warfare which
are intended, or may be expected, to cause widespread, long-lasting and severe damage to the natural
environment.” Article 55(1) (Protection of the Natural Environment) provides that ‘Care shall be taken in
warfare to protect the natural environment against widespread, long-term and severe damage. This protection
includes a prohibition of the sue of methods or means of warfare which are intended or may be expected to
cause such damage to the natural environment and thereby to prejudice the health or survival ofthe population.”

12, See, eB,

() Treaty Banning Nuclear Weapon Tests in the Atmosphere, In Outer Space, and Under Water, 5
August 1963, 14 United States Treaties (UST) 1313; TIAS 5433; 480 United States Treaty Series (UNTS) 43
(1963).

(i) Treaty on the Non-Proliferation of Nuclear Weapons, 1 July 1968, 21 UT 483; TIAS 6839 (1970).

(ii) Additional Protocol If to the treaty for the Prohibition of Nuclear Weapons in Latin America, 14
February 1967, 22 UST 754; TIAS 7137; 634 UNTS 364 (1971).

(Gv) 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 1971, 23 UST 701;
TIAS 7337 (1972).

(v) Treaty between the United States of America and the Union of Soviet Socialist Republics on the
Limitation of Anti-Ballistic Missile Systems, 26 May 1972, 23 UST 3435; TIAS 7503 (1972).

(vi) Interim Agreement between the Union of Soviet Socialist Republics and the United States of
American on Certain Measures with Respect to the Limitation of Strategic Offensive Arms, with Protocol, 26
May 1972, 23 UST 3462,; TIAS 7504 (1972).

13. Itis recognized that overly restrictive attempts to regulate weaponry and targeting parameters cither
to protect the environment or to induce disarmament (using environmental protection as the vehicle) raise the
danger of bringing the law into disregard and weakening its legal and moral force. It is necessary to seck a
realistic threshold of regulation; the present law, ifenforced, provides such a threshold. It allows only that level
of destruction and choice of targets necessary to restore the right of the nation attacked. Any regime which
would preclude exercise of effective self-defense options in favor of environmental projections would be
honored in the breach rather than adherence.



250 Readings on International Law

satellite made three passes over the Black Sea.”* It added that the approach of the
USS. vessels was intended to activate Soviet defenses and disclose their location
and nature to the orbiting satellite.°®

According to The New York Times, the two American warships were equipped
with electronic sensors and entered Soviet territorial waters not only to assert the
right of innocent passage but also to test Soviet defenses and to gather intel-
ligence.>” The charges were based on the fact that both the Caron and the
Yorktown had intelligence-gathering capacity.°® The Navy has denied that the
passage was in any way inconsistent with international law.

Pentagon officials admitted that the Caron had been loaded with additional
equipment during the Black Sea operations. In fact, it was apparently standard
procedure on such exercises to use electronic gear in order to determine whether
new radars had been deployed on shore and to verify the state of readiness of
Soviet forces.?® According to one analyst, “What you want is to provoke a
response.” Soviet naval units operated with shore-based aircraft and submarines;
collecting data on how these forces coordinated and deployed was a major
American intelligence goal.

If while in the Soviet territorial sea the Yorktown and Caron were engaged in
collection of information or any other activity not having a direct bearing on
passage, it would be in violation of the 1982 LOS Convention provisions relating
to innocent passage. According to Article 19(1), passage is innocent so long as it
is not prejudicial to the peace, good order, or security of the coastal State. In
addition, Article 19(2)(c) states that “any act aimed at collecting information to
the prejudice of the defence or security of the coastal State” is not considered
innocent passage. Thus, a transit of the territorial sea undertaken expressly to test
coastal State defenses, even passively, would fall under the 19(2)(c) prohibition.
Such activity would also fall under the Article 19(2)(1) prohibition on “any other
activity not having a direct bearing on passage.”

In response to the Soviet charges, the United States asserted that the entry of
the warships into Soviet waters “was simply an exercise of the right of innocent
passage.’#° White House spokesman Edward Djerejian added that the maneuvers
were routine and not intended to be provocative or defiant.*! The Department
of State released a statement emphasizing that the purpose of the Freedom of
Navigation program was to uphold the exercise and preservation of navigation
and overflight rights and freedoms around the world. The statement noted that
in fulfillment of the objectives of that program, U.S. ships and aircraft exercised
rights and freedoms under international law off the coasts of many countries.”

Itis likely that the Yorktown and Caron were conducting intelligence gathering
operations during their high seas transit off the coast of the Soviet Union; this
would be permissible under international law. While the warships may have
ceased active intelligence gathering operations during their passage through the


136 Readings on International Law

sea areas” have been established, usually during crises, in which the United States
has exercised limited jurisdiction over foreign vessels.° Probably the most famous
defensive measure taken by the United States in peacetime on the high seas was
the quarantine imposed under the auspices of the Organization of American
States during the Cuban Missile Crisis in 1962. While the quarantine would have
been condemned by a strict interpretation of the Geneva Convention, the clear
defensive need for such action justified the O.A.S. action in the eyes of most
nations of the world.

Another useful precedent is the fairly routine establishment of warning areas
by many navies to conduct naval exercises, missile or gun firings, or potentially
dangerous experiments at sea. Notices to Mariners are promulgated which specify
the area and duration of the dangerous activity. This peacetime abrogation of the
normal freedom of the sea is accepted as the reasonable exercise of high seas
freedoms, since such areas usually are severely limited in time and space.” It should
be noted, though, that while all ships are warned of the danger area, they are not
prohibited from entering at their own risk.

Summary of Legal Consideration. There is little doubt that if a cordon sanitaire
were declared today, without prior diplomatic and legal groundwork being laid,
the vast majority of the world community would condemn the action as a clear
violation of the freedom of the seas. However, the principle of self-defense and
the precedents established by sea control zones, the Cuban quarantine, and the
accepted practice of declaring warning areas, indicate that cordon sanitaire could
be viewed as a reasonable and proportionate response to an imminent threat.
Negotiations in international forums would be required, however, to ensure the
acceptance of such a view in the world community.

Potential Benefits of Cordon Sanitaire

Removal of Tattletales. If the cordon were accepted and observed by the Soviets,
they would remove their targeting and antiship missile platforms from the
immediate vicinity of the carrier battle group. Although satellites, HF/DF nets,
and other elements of the Soviet Ocean Surveillance System could presumably
still track the battle group to some extent, the removal of the tattletale would
decrease the accuracy of the targeting information available to the Soviets. Also,
the removal of the combatants would provide a buffer area in which to intercept
incoming missiles. Thus, with a cordon sanitaire in effect, a Soviet preemptive
strike would be less accurate and would also allow more reaction time for battle
group missile defenses to detect, track, and destroy the incoming missiles. Both
factors would increase the survivability of the aircraft carriers.


Robertson 271

(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.*

The Convention on the Continental Shelf, which also was produced by the
1958 Conference, 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.”°° 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,”>”

Finally, the 1958 Convention on the Territorial Sea and Contiguous Zone
incorporated into its provisions the principles enunciated by the Anglo-Nonvegian
Fisheries case*® 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.” The result has been to
incorporate large areas that were formerly 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 territorial 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.


28 Readings on International Law

Argentina, whose international lawyers stand among the most sophisticated
in the world, knew of this interpretation and never indicated any dissent from
it. Under normal international Jaw rules of treaty interpretation they are not
excused from the generally accepted interpretation of a treaty’s terms by some
secret and strained interpretation which their ingenuity might devise for their
own purposes.

An international lawyer pausing at this point would advise his policy maker
that Argentina had formally renounced the use of force to “liberate” the
Falkland/Malvinas Islands and to right ancient wrongs, but would remain free
to use other tools. Ifthe other tools proved ineffective, the solution of the tensions
would have to await a calmer day. The world is filled with such situations.

The United Nations Charter also contains a provision binding as a treaty on
both Argentina and Great Britain that requires that the interests of the inhabitants
of any non-self-governing territory be taken into consideration, including their
political, economic, social, and educational advancement.'” Thus, even if the
Argentine claim to the Islands were entirely valid, a substantial legal question
would exist as to the degree to which Argentina could maintain any garrison or
system of law in the Islands which would inhibit the population, however it got
there, in expressing its own desires for its own future, even if that future involved
a separation from Argentina and a joining with Great Britain. A solution to the
Argentine grievances which did not take account of the wishes of the inhabitants
of the Islands would place Argentina, and possibly even Great Britain if it agreed
to such a solution, in apparent violation of this treaty commitment. The fact that
those inhabitants or their ancestors came to the Islands as a result of British
aggression in 1833, if that is the case, seems legally irrelevant to the humane
concern for them as human beings with an interest in their own governance and
well-being. It is this provision which is central to the anticolonial arguments in
the United Nations regarding the well-being of the ethnic African and Indian
majority in South Africa regardless of the prior establishment of Dutch rule there
and the evolution of that rule into the current government of South Africa.

In light of these legal considerations, and regardless of whatever negotiations
might have gone on between 1945 and 1982 between Argentina and Great
Britain, the Argentine use of force to oust the British garrison in April 1982, and
the Argentine disregard of the wishes of the inhabitants of the Islands; place
Argentina squarely in the position of violating its treaty commitments not only
to Great Britain but to the entire world that accepts the United Nations Charter
as the basis for the current international legal order.

Nothing in the Charter or defense treaties related to the Organization of
American States detracts from these provisions.

From this point of view, the Argentine military action of April 1982 was a
matter of interest to the entire world; it threatened the integrity of the treaties
on which we all rely for such stability as exists in the world today. The fact that


Chapter 27

Combating International Terrorism:
The United Nations Developments*

L.F.E. Goldie

The problem of intemational terrorism has not been ignored by the Security Council nor
the General Assembly of the United Nations. It seems generally agreed that it is unlawful
for States to support terrorist activities that adversely affect other States. Definitions flowing
from this agreement and applying its sense to specific situations have surfaced many areas of
disagreement, however.

Introduction. Although reflected in one word, “terrorism” has become
refracted, in the numerous U.N. bodies dealing with it, into a multicolored
concept—and all its qualities tend to be given different emphases. Also, although
that one word has been with us since the last decade of the 18th century, its
connotations have changed as States mature and yesterday’s partisans become
today’s establishment. Over and over again the model of Lord Wellington’s (as
the Duke of Wellington then was) protest to Marshal Massena (the former general
of the French Revolutionary Armies) against the latter’s order to his troops to
shoot the Portuguese Ordenanza—ununiformed militia who were harassing the
French lines of communications during the peninsular campaign of the
Napoleonic Wars. Wellington wrote:

Ce que vous appelez “des paysans san uniforme,” “des assassins et des voleurs
de grand chemin” sont l’Ordenanza du pays, qui comme j’ai déja eu ’honneur de
vous assurer sont des corps militaires commandés par des officiers, payés, et agissant
sous les lois militaires. Il parait que vous exigez que ceux qui jouiront des droits
de la guerre soient revétus d’un uniforme; mais vous devez vous souvenir que
vous-méme avez augmenté la gloire de l’armée francaise en commandant des
soldats qui n’aient pas d’uniforme.'

To those who permit themselves to be struck by the paradox of that most
conservative of beings, the Duke of Wellington, protesting against short shrift
being given in 1810 to the guerrilleros and Ordenanza of the peninsula at the
hands of a veteran of the French Revolution, it should be emphasized that such
is the nature of this paradoxical subject, and that its underlying necessities

* Reprinted from the Naval War College Review Winter 1979.


Goldie 391

concerning Friendly Relations and Co-operation among States in accordance with
the Charter of the United Nations, by peoples struggling against colonialism, alien
domination, foreign occupation, racial discrimination and apartheid;">

In a note of 8 September 1972"* the Secretary General took the initiative by
requesting the inclusion in the agenda of the General Assembly’s 27th session of
an item entitled “measures to prevent terrorism and other forms of violence
which endanger or take innocent human lives or jeopardize fundamental
freedoms.” At its 2037th meeting on 23 September 1972 the General Assembly
decided to include the item in the agenda of its 27th session and to allocate it to
the Sixth Committee in the following amended form:

Measures to prevent international terrorism which endangers or takes innocent
human lives or jeopardizes fiandamental freedoms, and study of the causes of those
forms of terrorism and acts of violence which lie in misery, frustration, grievance
and despair which causes some people to sacrifice human lives, including their
own, in an attempt to effect radical change.

On 2 November 1972 the Secretariat produced its Study Prepared in Accordance
with the Decision taken by the Sixth Committee at its 1314th Meeting on 27 September
1972. This study concluded with the following paragraphs:

It is clear fom the foregoing study that the origins and underlying causes of
terrorism are complex and various, but that many of them lie in international
political or social situations which the United Nations was founded to improve.
The effort to eliminate those causes should be intense and continuous, as mankind,
despite its intellectual powers, has not yet succeeded in creating a social order free
from misery, frustration, grievance and despair—in short, an order which will not
cause or provoke violence. Yet terrorism threatens, endangers, or destroys the lives
and fundamental freedoms of the innocent, and it would not be just to leave them
to wait for protection until the causes have been remedied and the purposes and
principles of the Charter have been given full effect. There is a present need for
measures of international cooperation to protect their rights as far as possible. At
all times in history, mankind has recognized the unavoidable necessity of repressing
some forms of violence, which otherwise would threaten the very existence of
society as well as that of man himself. There are some means of using force, as in
every form of human conflict, which must not be used, even when the use of force
is legally and morally justified, and regardless of the status of the perpetrator.

Measures, more or less effective and appropriate, have been devised or attempted
in the past by the international community to deal with parts of the problem of
terrorism or with related problems. These measures afford some help in the work
which should now be done in order to prevent new violence towards new
innocent victims."

The Sixth Committee debated the issues and considerable divergences of
opinion came to light. While some States stressed the distinction between


Farrell 407

as “a form of terror not confined to a clearly delineated geographical area."°”

Today’s terrorist is seen as having the potential for striking virtually anywhere at
will. Brian Jenkins made reference to this when he described terrorism as“... a
kind of warfare without territory, waged without armies as we know them. It is
warfare that is not limited territorially; sporadic ‘battles’ may take place
worldwide. It is warfare without neutrals, and with few or no civilian bystand-
ers.”

While this effort removes barriers encountered in trying to “squeeze” a group
into either the international or transnational definition, it, in a sense, removes
too much and is too broad.

Domestic terrorism is activity by a State’s nationals attempting to influence
that State’s behavior. All activity takes place within that State. The activities of
the Symbionese Liberation Army is an example of this phenomenon. The George
Jackson Brigade, active during the period 1975 through 1978, is another
illustration. This particular group grew out of an unsuccessful prison reform
movement and focused on the commission of urban operations directed against
the “fascist” U.S. Government. Of the 28 actions (bombings and robberies)
conducted by the group, 23 were against business, utility and commercial targets
and the remainder against government or police facilities. The Puerto Rican
Armed Forces of National Liberation (FALN) have operated both within Puerto
Rico and major cities of the United States. The group is the most active of the
so-called nationalist groups seeking an independent Puerto Rico. Since its
founding in 1974, the FALN has carried out over 60 bombing operations. Within
the United States, five persons have died and 75 have been injured.*4 The scope
of these attacks could be viewed as limited and it may appear that the United
States would not be vulnerable to a serious transnational attack within its
boundaries. However, despite the growth of modern weaponry and the increased
sophistication of defense planning, highly industrialized nations remain quite
fragile. In fact, the highly technological, exposed and interdependent automated
systems so essential in our modern society provide many prime targets for terrorist
groups. Commercial aircraft, natural gas pipelines, electric power grids, offshore
oil rigs, and computers storing government and corporate records are examples
of sabotage-prone targets whose destruction would have more serious effects
than their primary losses would suggest. Social fragility is reflected in the blackout
that occurred in New York City (13 July 1977). The disproportionately high
damage caused by uncontrolled looting and arson, resource shortages, and loss
of public confidence, attests to urban vulnerability. On that day lightning
completely disrupted the Consolidated Edison System, immobilizing ten million
people. Subways and elevators came to a halt. Airports and television networks
were forced to close down. Thousands of looters surged through the streets,
resulting in 3,300 arrests and injury to nearly 100 policemen. It was estimated
that the cost of the damage would be $150 million.®* If the blackout lasted 4 or


Chapter 11

Marine Technology Transfer and the
Law of the Sea*

Lieutenant Commander James Stavridis, U.S. Navy

n 10 December 1982, the signing ceremony was held for the United

Nations Convention on the Law of the Sea (UNCLOS) in Montego Bay,
Jamaica. The comprehensive Law of the Sea Treaty was signed by delegates from
117 countries, and the document represented over nine years of difficult
negotiations conducted by nearly 3,000 delegates. The Treaty is a comprehensive
effort to regulate the world’s oceans, and includes provisions on a wide range of
issues, including: territorial seas, the continental shelf, the high seas, marine
scientific research, exploitation of the deep seabed, straits passage (for commercial
shipping and warships), fishing rights, and technology transfer. The United States
refused to sign the Treaty, along with 22 other countries. In describing U.S.
objections to the document, chief delegate Thomas Clingan said, “no nation
should be asked to sacrifice fundamental national interests.” One primary area
of concern for the United States is that portion of the Treaty that creates an
International Seabed Authority (ISA or the “Authority”) to regulate the mining
of strategic minerals from the deep seabed—the floor of the ocean under the high
seas.” Within the deep seabed mining sections of the Treaty, one particular issue
of fundamental concern to U.S. negotiators is the mandatory transfer of marine
technology. Of special concern and sensitivity is the closely held technology that
would be required to mine the floor of the deep ocean for the rich lodes of nickel,
copper, cobalt, and manganese, found in the “manganese nodules” throughout
the ocean floor.

The associated technology (which would involve the prospecting, collecting,
surfacing, transporting, and processing of the manganese nodules) covers a wide
range of equipments and techniques in the marine environment. In addition to
the deep seabed mining technology, which would be available for mandatory
transfer, the Treaty further establishes regional centers to encourage other forms
of technology transfer. The issue of marine technology transfer in the context of
the Law of the Sea Treaty is an emotional one. It is colored by: overtones of the
entire North-South debate, questions of the free market and competitive

* Reprinted from the Naval War College Review July-August 1983,


Walker 59

(xi) International prestige
(4) Domestic functions

(xii) Border/coastguard responsibilities

(xiii) Nation-building
As Booth points out, such a classification “can only provide a guide and
perspective for the specific analyses[,] . . . the ultimate aim when assessing such
a subjective and contextual concept as utility.” These goals, or value preferen-
ces, are usually socially derived and are therefore strongly influenced by current
conventional values. It would therefore behoove the military decisionmaker to
attempt to approximate widely accepted societal ideas, beliefs, and goals (often
crystallized with positive law or statements such as the U.N. Charter Preamble)
as he postulates his goals and subgoals within the military decision process.
Perhaps this is one reason why the Vietnam War “‘went wrong,” in the view of
some.

Immediate past trends, and conditions affecting those trends, are described by

Janis in the context of the 1958 law of the sea treaties and developments through
1975. A look at deep-rooted past trends, such as those behind the traditional
3-mile limit, and reasons for such trends, might have underscored his thesis as to
the role navies and naval power may play in developing the law of the sea. Janis
projects certain future trends, recites policy alternatives, and evaluates these
alternatives in the light of their impact on the world’s principal navies. Courses
are charted “for the reconciliation of naval interests in the new international
ocean order,” but his preferred choice is not stated.

Conclusions, As Professor Knight has observed, there are at least three schools
of thought on the role of international law in national security policymaking:

International law is a “pious fraud” and should have no effect whatever on the
making of national security policy.

International law should be considered as one among many relevant factors in
determining national security policy.

International law should be regarded as absolutely binding on the United states
and determinative of all national security policy decisions.”

None of the authorities reviewed in this article, and particularly Janis’ fine
monograph, would adhere to the “pious fraud” view. The difference between
the “absolutely binding” approach and the “among factors” theory is an issue of
perspective and breadth of approach. Any good lawyer will say that you must
obey the law. Janis-would not quarrel with this; he is concerned with how some
of the law of the sea came to be, the influencing factors on this law, and factors
that can (or should) influence its development. He does omit certain sources and
substantive parts of the law, and both the lawyer and the professional military
man should be aware of this book’s lack of a configurative legal approach. To


68 Readings on International Law

are only a part of the whole, and this part needs to be looked at in the context
of the other interests at stake.

Because many of you are concerned with freedom of navigation for commer-
cial and naval vessels and with freedom for aircraft to fly over straits and economic
zones, I’d like now to describe more fully where the Conference stands on these
subjects. With minor qualifications, these aspects of the proposed comprehensive
treaty have been brought to the point of substantial consensus. In the case, for
example, of the territorial sea, it has been agreed that it will be extended to 12
miles and that the problem of overlapping straits will be dealt with through a
new regime of transit passage. This regime, in effect, will preserve the principal
legal aspects of the high-seas passage that exists where there remains a high-seas
Jane between the 3-mile territorial seas on each side of the straits.

In the summer of 1977 we had intense negotiations over the issues of freedom
of navigation and overflight in the 200-mile economic zone, and we now have
a text which makes clear that the freedoms of navigation and overflight that apply
within the 200-mile economic zone are the same freedoms of navigation and
overflight that apply to the high seas beyond the 200-mile economic zone.

One more new concept that emerged early in the Conference is that of
“archipelagic waters.” Its meaning is that countries comprising a group ofislands,
such as the Philippines or Indonesia, would be allowed, in effect, to declare that
the waters embraced by these islands are the equivalent of territorial seas. This,
of course, would raise the same problems of freedom of navigation and overflight
that the extension of territorial waters over straits would raise. Here it has been
agreed that lanes open to free navigation and overflight will be established and
defined by courses and distances from point to point through the archipelagic
waters, with a permitted deviation of a certain number of miles on each side of
the axis thus established.

The interests of the coastal States in establishing and enforcing marine
environmental-protection measures have been carefully balanced against
maritime interests in preventing the harassment of navigation. It has also been
agreed that the application of binding dispute-settlement procedures would be
subject to a military exception.

In general, the world has a vital interest in establishing the rule of law in all
these respects, and observance of the rule of law has no greater importance for
any affected group than it does for those of us who are charged with responsibility
for the preservation of navigational freedoms. When it comes to the question of
where ships and airplanes can legally go, it is important to have clear rules and
thus be able to avoid the conflicts that could otherwise arise. The potential for
conflict does more than poison good relations with the countries affected, It
could also compel the allocation of resources to vindicate asserted rights in ways
that would impair the availability of these resources for their primary purposes.


INTERNATIONAL LAW STUDIES
1995
READINGS ON INTERNATIONAL LAW
FROM THE NAVAL WAR COLLEGE REVIEW
1978-1994

Edited by
John Norton Moore and Robert F. Turner

Volume 68

NAVAL WAR COLLEGE
NEWPORT, RHODE ISLAND

a



94 Readings on International Law

2. Depths up to 146 meters have been reported off the Musandam Peninsula. For a detailed geographic
and hydrographic description of the Gulf see U.S. Defense Mapping Agency, Hydrographic Center, Sailing
Directions for the Persian Gulf, Pub 62, Sth rev. ed. (Washington: 1975).

3. U.S. Dept. of State, at 19-21.

4, See MacDonald, The Roles of Iran and Saudi Arabia in the Development of the Law of the Sea, Journal of
South Asian and Middle Eastern Studies 3-10 (Spring 1978).

5. For text see United Nations, Law and Regulations on the Regime of the Tenitorial Sea, United Nations
Legislative Series, (ST/LEG/SER.B/6) (New York: 1957), at 24-25.

6. For text see 43, Supplement to the Am. J. Int'l L. 154 (1949).

7. For text see United Nations, Supplement to Laws and Regulations on the Regime of the High Seas and
concerning the Nationality of Ships, United Nations Legislative Series, (ST/LEG/SER.B/Suppl.) (New York:
1957), at 29-30.

8, For text see United Nations, Second United Nations Conference on the Law of the Sea, A/CONF.19/5
(Geneva: 1960), at 15.

9. For text see 43, Supplement to the Am. J. Int'l 156 (1949).

10. For text see Revue Egyptienne de Droit Intemational, v. 5, 1949, at 347.

11. For text see CHURCHILL, VOL. 1 NEW DIRECTIONS IN THE LAW OF THE SEA 307-308 (1973).

12, For text see United Nations, National Legislation and Treaties Relating to the Law of the Sea, United
Nations Legislative Series (ST/LEG/SER.B/18) (New York: 1957), pp. 334-335.

13. For textsee U.S, Dept. of State, Continental Shelf Boundary: Bahrain-Saudi Arabia, Intemational Boundary
Study Series A—Limits in the Seas, No. 12, 10 March 1970.

14. For text see 60 Am. J. Int'l L. 744 (1966).

15. For text see 8 LL.M. 493 (1969).

16. For text see 12 LL.M. 1319 (1973).

17. For conference documents see I.L.M. 501 (1978).

18. See United Nations, United Nations Conference on the Law of the Sea, A/CONF.13/39 (Geneva: 1958),
v. IIL, at 3.

19. Id.

20, Id, at 36,

24. Id.

22. Id. at 130.

23, Id, v. IV, at 23-24,

24, Id. ve IL, at 41.

25, Id.,c. IV, at 23,

26. Id.

27, Id.

28, Id. at 24,

29. See U.N. Second Conference on the Law of the Sea, p. 103.

30. United Nations, Third Conference on the Law of the Sea, A/CONF.62/SR-51 (New York: 1975), v.1,
at 72.

31. Id., v. I, at 123.

32. Id, v. I, at 144,

33. Id,, v. Il, at 139.

34, Id.

35. Id, at 273.

36. Id, v. 1, at 73.

37. Id, v. UI, at 115-116.

38. Id, v. IV, at 90.

39. Id, v. X, at 185-186, 188,



168 Readings on International Law

T: a large extent, we have been busy creating the very treaty we now reject.
Let’s look at the U.S. record during the emergence of the new law of the
sea picture.?>

1945—The Truman proclamations on the continental shelf and on fisheries
(conceived in pre-WWII days but issued at the beginning of U.S. tenure as a
global naval superpower) instigate, or at least accelerate, coastal nation expan-
sionism.

Mid-1960s—The trend toward seaward expansionism of coastal-state
sovereignty and jurisdiction so concerns the United States as a global ocean power
that it enters into discussions with the other global naval power—the USSR—on
what to do about the impending threat to free navigation, especially through
straits, The two superpowers determine that international agreement with coastal
nations is the best means to approach the problem. Offshore fisheries jurisdiction
was to be the trade-off for coastal nations. However, the interest in deep seabed
minerals enters the picture as a new bargaining chip.

1970—President Richard Nixon presents a detailed proposal for an Interna-
tional Sea-Bed Resource Authority, based on the “common heritage” concept.
The Nixon proposal is such a generous concession to landlocked and Third
World states that, had it been accepted and adopted outright, it would have been
considerably more objectionable to the current U.S. administration.”° In any
case, the proposal is rejected by the Third World nations, largely because it is a
USS. proposal. Again, the United States is willing at this time to make such a
large concession in the interest of preserving unrestricted rights of vessel naviga-
tion and overflight in the face of expanding jurisdictional claims by coastal
nations. Although the Nixon proposal is rejected, it thereafter provides the
framework for negotiations on a seabed mining regime.

1976—By now, UNCLOS III is well under way. Favorable navigation and
overflight rights, including straits passage rights for aircraft and submerged
submarines, are part of the package thus far negotiated, but the Conference is
bogged down on the deep seabed mining regime. Basically, the nations repre-
senting private miners—the United States and a few other industrialized states—
want relatively unrestricted access to seabed minerals by private miners. The
Group of 77, a bloc of about 120 nations of the Third World, prefers a new
International Sea~Bed Authority that would itself mine the seabed. A third, but
overlapping group—producers of minerals from land-based sources—want the
treaty to protect them from competition from seabed minerals.

Enter Henry Kissinger, U.S. Secretary of State, who wants the Conference to
move through its seabed-regime impasse and adopt a new treaty so that the
United States can feel more secure about its crucial national security interest in
wide freedoms of navigation and overflight. Here is what Secretary Kissinger
proposes in 1976 at UNCLOS III:


Farrell 413

President. The Chief Executive identified civilian control with presidential
control, while Congress viewed it as congressional control.

‘Whatever one’s perspective, this congressional/executive power struggle had
made political involvement with the military a matter of routine. While the
executive branch has been generally in control since the end of World War II,
Congress more recently has made vigorous efforts to regain some of that power
(i.e., the 1973 War Powers Resolution) and reassert greater congressional control
over the military. Such activity additionally provides the military an opportunity
to take advantage of any political involvement.

As both parties to this struggle have maneuvered for an advantage, the military
itself has been drawn into the controversy. Each side seeks to enlist the support
and assistance of military leaders, the services, and even the entire profession.
Executive Branch leaders call upon the Joint Chiefs of Staff and senior commanders
to support Administration proposals for reorganizing the Defense Department,
while congressional committees call upon the service chiefs and their deputies to
oppose Defense Department efforts to increase centralized control over the services
by the Office of the Secretary of Defense. As a result, the military is compelled to
become involved in what is essentially a political power struggle—a power struggle
that takes the form of disputes over policy decisions. In (Samuel) Huntington’s
words, “The separation of powers” between Congress and the President “is a
perpetual invitation, if not an irresistible force, drawing military leaders into
political conflicts.”*

What we have, then, is a military that has been involved consistently in politics.
The armed forces have not been an isolated segment of the population but, rather,
an element very much subject to and a participant in our political system. Its role
within our society has been the subject of much interpretation, both favorable
and unfavorable. It is within these political and societal bounds that the President
must make his choice for eventual employment in a domestic terrorist incident.

Legal Rationale. The current state of constitutional and statutory law severely
limits the use of military forces in domestic situations. The authority to order the
intervention of federal troops in domestic law enforcement generally centers on
the office of the President.

The strongest legal prohibition against the use of military force to execute
civil and criminal law is Title 18, Section 1385, of the U.S. Code, Use of Army
and Air Force as Posse Comitatus (power of the county). This provides that
whoever, except under circumstances expressly authorized by the Constitution
or Congress, willfully uses any part of the above-stated forces as a posse comitatus
or otherwise to execute the laws shall be fined not more than $10,000 or
imprisoned not more than 2 years or both. The Act was originally passed in 1878
as the result of the use of U.S. troops by President Grant “to secure the better
execution of the laws” during the election of 1876.” During debates in Congress


590 Index

prohibitions against, 413-414
US. military task force, 423
use of military by civilian authorities prohibited, 416
‘weaponry and limitations, 417-418
Posse Comitatus Ad, 413-414, 415, 416, 418, 419, 425
presidential powers to use U.S. military, 412-413, 416
role of the Federal Bureau of Investigation (FBI), 417, 418-419
role of U.S, state militias, 414
suppression of rebellion, 414-415
Dominican Republic, U.S. action in, 460
Douglass, Joseph, 505, 508
Dubai, boundary agreement with Iran, 87
Dubinin, Soviet Ambassador Yuri, 252
Durand v. Hollis, 356
Dutch Republic. See Netherlands.

Egypt
Adhille Lauro case, 338-339
acquisition and development of biochemical weapons, 503
destruction of Israeli destroyer, 336
Emden, disguised German cruiser attack, 498
Endara, Guillermo, 367, 368, 372
England. See Great Britain.
Engo, Paul B., 154
Entebbe incident, 396, 419, 460
Environment
impact of armed conflict, 533, 534-535, 536-537, 537-538
conventions governing, 534-535
development of restrictions, 534-535
Greenpeace proposals regarding environmental impact, 537
recent developments in international law, 537
Equal protection clause, U.S. Constitution, 414, 415
Ethical and moral constraints on the use of force, 324-328
Eugenie Niarchos, 121
European Community
courts system, 12
Treaty of Rome, 11
European Convention on Extradition (1957), Article 3, 379
European Convention on the Suppression of Terrorism (1978), 380, 404
European Economic Community, 30, 380
Sweden's relations with, 527-528
European security, impact of U.S.-Soviet INF Treaty on, 565-573
Evacuation, aerial, 473-474
Exclusion zones
Falklands Islands Protection Zone, 207
maritime exclusion zones, 207
military boundary zone, 203, 205-207
special caution areas, 256
total exclusion zone, 207
Exclusive Economic Zone, 64, 65, 66, 75, 98, 438-439, 442, 443
‘and the uses of naval forces, 181-187
artificial islands, installations, structures, 289, 290-291, 439, 442
coastal state rights, 129
contiguous zone, 200. See also Contiguous zone.
creeping jurisdiction, 76-77


Booth 117

MURPHY, NAVAL POWER IN SOVIET POLICY at 8-9, 52-54, 163-166, 227-229; (1978); a range of possible
countermeasures is discussed in NITZE & SULLIVAN, SECURING THE SEAS (1979).

9. This and some other of the general problems in this paper are discussed in Booth, The Military
Implications of the Changing Law of the Sea, in GAMBLE, LAW OF THE SEA: NEGLECTED ISSUES (1979). A
revised and much expanded version of these arguments is in preparation and will be published under the title
LAW, FORCE, AND DIPLOMACY AT SEA by ALLEN & UNWIN.

10, For example, Weinland, The State and Future of the Soviet Navy in the North Atlantic, supra n. 1 at 53-73.

11. Bull, Sea Power and Political Influence, Power at Sea I, no. 122 Adelphi Papers 8 (London: Intemational
Institute for Strategic Studies, Spring 1976).

12, Supran, 1 at 135. .

13, MecGwire, The Rationale for the Development of Seapower, U.S. Nav. Inst. Proc. 166-167 (May 1980).

14, MccGwire, Soviet-American Arms Control, Prepared for the United Nations Association Soviet-
American Parallel Studies Program at 50 (November 1978).

15. Id, at 71-72,

16, JANIS, SEA POWER AND THE LAW OF THE SEA 69-70 (1976).

17. On the Soviet use of ocean law to further policy see Young and Sebek, Red Seas and Blue Seas: Soviet
Uses of Ocean Law, Survival 255-262 (November/December 1978).


Gilchrist 145

its use during some future crisis, and their reactions, even if unfavorable, would
be more reasoned and restrained.

Cordon sanitaire has tremendous potential as a means to reduce the vul-
nerability of U.S. aircraft carriers. The problems currently limiting its practical
application are solvable, but many of the solutions require a peaceful diplomatic
environment and considerable time to implement. It is therefore important to
begin the diplomatic actions recommended above as soon as possible. The fate
of many of our aircraft carriers may well depend on it.

Lieutenant Commander Gilchrist was assigned as a naval aviator with Patrol Squadron 30 at the
time this article was first published.

Notes

1, Lehman, Aireraft Carriers: The Real Choices, 6, No. 52 The Washington Papers 39 (1978).

2, Telephone Interview with Admiral Isaac Kidd, USN (Ret), Washington, D.C, (January 23, 1982).

3, Interview with Captain Stuart D. Landersman, USN, Naval War College Strategic Studies Group,
Newport, RI. January 12, 1982),

4, USS. Treaties, etc., “Law of the Sea: Convention on the High Seas,” United States Treaties and Other
International Agreements, TAS 5200 (Washington: U.S. Dept. of State, 1962), v. 13, pt. 2, at 2314,

5, U.S, Treaties, etc., “Prevention of Incidents On and Over the High Seas,” United States Treaties and
Other Intemational Agreements, TLAS 7379 (Washington: U.S. Dept. of State, 1972), v. 23, pt. 1, at 1168-1173.

6. Office of the Chief of Naval Operations, Law of Naval Warfare (Washington: U.S. Govt. Print. Of,
1974), pp. 4-12a, 4-13.

7. Interview with Colonel Joseph D. Ruane, USMC, Naval War College Strategie Studies Group,
Newport, R.I. (January 12, 1982).




Chapter 13

A Framework for Small Navy Theory:
The 1982 U.N. Law of the Sea Convention*

Nien-Tsu Alfred Hu and James K. Oliver

Mx existing naval theory has been developed and written by naval
practitioners and scholars from the perspective of major or global naval
powers and deals with large navies. In the last decade the emphasis of this
literature has shifted from concern with warfighting missions to the political use
of navies. Moreover, such analysis has inevitably focused more upon the exercise
of global presence by navies and thus their political, military, and diplomatic uses
within a global context. This perspective is of limited use for most navies in the
world. Smaller navies are limited in their operating areas and geographic reach
and, therefore, cannot seriously consider global tasks or missions. They need a
naval theory derived from their own perspective, and with the advent of the new
ocean regime after 1982, this need has become even more pressing.

The new accretion of immense maritime zones bestows tangible and intan-
gible interests upon a coastal State. These include the acquisition of living and
nonliving resources and the legitimate control of maritime activities under
national jurisdiction within the zones. In addition, these newly acquired maritime
interests expand significantly a coastal State’s sense of national interests. Clearly,
navies will play a major role in upholding and protecting these national maritime
interests. Nevertheless, these forces face a new context in which political,
diplomatic, and legal emphases outweigh the conventional warfighting role in
terms of naval planning and policymaking. This situation manifests the under-
development of naval theory vis-4-vis small navies in general, and the role of
navies in fisheries and other maritime resources issues in particular.

What would be useful, and what this paper seeks to provide, is a theoretical
framework—based on the 1982 United Nations Convention on the Law of the
Sea (1982 LOS Convention)—which provides small navy planners with a clear
objective in formulating a State’s naval policy. Such a framework will provide
naval planners with a rationale for the protection ofall national maritime interests
within the national 200-mile exclusive economic zone and, at the same time,
furnish national maritime policymakers with an understanding of the importance
and necessity of including naval forces in their plans.

* Reprinted from the Naval War College Review Spring 1988.




Chapter 15

Troubled Waters off the Land of the
Morning Calm: A Job for the Fleet*

Lieutenant Commander James R. Boma, U.S. Naval Reserve

I is early Sunday morning, 4 February 1990. A South Korean ferry, accom-
panied by a lone Republic of Korea (ROK) Navy Sea Hawk fast-attack
gunboat, proceeds slowly in choppy seas on a routine resupply run toward the
island of Paengnyong Do, one of the five precariously situated Northwest Islands.

By authority of the 1953 Armistice Agreement, these remote islands, which lie north
of a straight seaward extension of the demilitarized zone (DMZ) and ‘perilously close to
the North Korean mainland, are controlled by the United Nations Command and hence
are under South Korean administration. Supported by armed-escorts, resupply missions
have been conducted without incident since 1953.

During 1988, the Seoul Summer Olympics were a resounding international public
relations success for the South, and the North’s boycott of the event served to heighten the
stark contrasts between the two systems. While the North’s economy, on an essentially
wartime footing for nearly four decades, is stagnant and seemingly able to subsist only
through massive infusions of economic and military aid from communist allies, the South’s
is robust and booming.

In addition to the ideological incompatibilities of the two governments, Kim Il-sung,
the aging patriarch of the North who has ruled that government since its inception, is beset
by political problems resulting from his attempt to transfer the reins of power to his son and
heir apparent, Kim Jong It—doctrinal heresy to a dedicated Marxist-Leninist. Increasingly
strident calls for forceful reunification, a lifelong promise of the elder Kim, have been
emanating from P’yongyang and were capped on 1 January 1990 by a communique
renewing earlier demands that the “puppet regime in the South” must obtain permission
from the North prior to entering the disputed waters adjacent to the Northwest Islands. As
always, the South Koreans ignored this verbal barrage and have continued to maintain the
tenuous, but vital, logistics lifeline to these isolated outposts.

The skipper of the Sea Hawk is alarmed when his radar operator reports
contact on four high-speed surface craft, believed to be North Korean Osa or
Komar missile boats, closing rapidly from the north. After radioing a frantic
warning to the captain of the supply vessel, the Sea Hawk is struck topside by

* Reprinted from the Naval War College Review Spring 1989.


Goldie 397

veto power. The somewhat analogous Mogadishu air rescue of the passengers of
a Lufthansa aircraft by special forces of the Federal Republic of Germany over a
year later did not stimulate the calling of a meeting of the Security Council
because the Government of Somalia permitted the landing of the rescue team.

Conclusion. While the United Nations has tackled the problem of international
terrorism through a plurality of organs and in terms of approaches to the subject
in general and of specific topics, it becomes clear that the more general the topic
undertaken the less effective the resultant action adopted. In addition, the greater
the number of bodies deliberating on the topic, the less positive the resultant
outcome appears to be. Again, the longer a formulation satisfactory to all points
of view takes to emerge, the more insipid it becomes. On the other hand, when
the issue is attached to a specific subject matter, for example acts of violence
against representatives of States and diplomatic persons, or aerial hijacking, or a
specific grievance, for the symbolic acts by various U.S. groups towards members
of certain Missions to the United Nations and their families, the more definitive
and effective the formulations of the organ’s point of view becomes.

Professor Goldie was serving as the Senior Legal Officer of the United Nations Secretariat at
the time this article was first published,

Notes

‘The views expressed in this study are the personal views of the author and do not necessarily reflect those of
the U.N, Secretariat.
1. (What you call “peasants without uniforms” and “murderers and highwaymen” are l'Ordenanza
(militia) of the land who, as I have already had the honor of assuring you, are paid military bodies, commanded
by officers, and operating under military law. It would appear that you require those who enjoy the rights of
war to be uniformed but you should remember that you yourself have added to the glory of the French Army
while commanding non-uniformed soldiers.) Reproduced in HALL, A TREATISE ON INTERNATIONAL
LAW, 619, note 1 (8th ed. 1924),

2. Fora study that discusses the limited areas of the specific competences of the General Assembly under
the Charter of the United Nations and the scope and limits of its “recommendations” apart from specific topics
it may regulate, see Sloan, The Binding Force of a Recommendation of the General Assembly of the United Nations,
25 Brit. Y.B, Int'l L. (1948); Cheng, United Nations Resolutions on Outer Space: “Instant” International Customary
Law, 5 Indian]. Int'l. L, 23 (1965). For the relevance of voting support for the United Nations General Assembly
resolutions to the formation of international law, sce Goldie, The North Sea Continental Shelf Cases—A Ray of
Hope for the Intemational Court?, 16 N.Y.L. Forum 325, 342-49 (1970), and the authors cited therein as
participants in the debate.

3. a, Resolution on Safety of Intemational Civil Aviation, Resolution No. 32/8;

b, Measures to Prevent International Terrorism, which Endangers or Takes Innocent Human Lives
or Jeopardizes Fundamental Freedoms, and Study of the Underlying Causes of those Forms of Terrorism and
Acts of Violence which lie in Misery, Frustration, Grievance and Despair and which Cause Some People to
Sacrifice Human Lives, Including their Own, in an Attempt to Effect Radical Changes, Resolution No. 32/147;

¢, Drafting of an International Convention Against the Taking of Hostages, Resolution No. 32/148.

4, Resolution 2625 (XXV), United Nations, General Assembly, Offical Records, Supplement No. 28,
25th Session, U.N. Document A/8023 (New York: 1971), p. 123.

5, Resolution 3314 (XXIX), United Nations, General Assembly, Oficial Records, Supplement No. 31,
29th Session, U.N. Document A/9631 (New York: 1975), p. 143. Article 3, paragraphs (f) and (g) where the
words referred to in the text are to be found, state the following to be acts of aggression (inter alia):



354 Readings on International Law

That same day, the Arab League’s Council of Ministers denounced U.S. actions
in the Gulf of Sidra.** Colonel Qaddafi claimed victory.”

On 5 April, terrorists bombed a West Berlin nightclub frequented by U.S.
military personnel, killing a civilian woman and an American soldier, Army
Sergeant Kenneth T. Ford, and wounding scores of other Americans.** American
officials in West Berlin declared a “definite, clear connection” between the
bombing and Libya.’ Robert B. Oakley, head of the State Department’s
counterterrorism office, stated that the bombing “fit the pattern” of Libya-spon-
sored terrorism.” West German officials focused their investigation on reports
that the Libyan People’s Bureau in East Berlin had used its embassy status to
provide logistical support to terrorists operating in West Berlin.*! France expelled
two Libyan diplomats accused of participating in the planning of terrorist attacks
against Americans in Europe.’? On 9 April, President Reagan held a press
conference during which he announced that the United States had “considerable
evidence” indicating Libyan support for terrorism against Americans.*? The
President announced his intention to act militarily if further intelligence estab-
lished a direct connection between Libya and the terrorists. “We're going to
defend ourselves,” he said.#

Early on 14 April (15 April local) 1986, U.S. forces executed air strikes against
Libyan targets. Air Force F-111 aircraft bombed targets in and around Tripoli:
the military side of the Tripoli airport, the Libyan External Security building,
the el-Azziziya miliary barracks (including the compound of Libyan leader
Colonel Muammar el-Qaddafi), and the Libyan commando training center of
Sidi Bilal. Navy attack aircraft bombed military targets in and around Benghazi,
including the Benina air base and the Jamahiriya barracks.** These targets had
been selected to “stop Qaddafi’s direction of the support of international
terrorism.”*” U.S. aircraft encountered significant resistance from SAM batteries
and antiaircraft artillery." 8 For undetermined reasons, one F-111 was lost, as were
its two crewmen, Air Force Captains Paul F. Lorence and Fernando L. Ribas-
Dominicci. Some residential neighborhoods in Tripoli were damaged in the
attack,” although accounts differed as to whether the damage was caused by U.S.
bombs or Libyan SAMs returning to earth undetonated.>°

Secretary Shultz stated at the press conference announcing the operation that
the strikes had been ordered as the result of “irnefiatable” evidence of Libyan
involvement in the bombing of the West Berlin club.5! He said that the strike
was necessary to deter future Libyan support of terrorism.>? “If you raise the costs
[of terrorism],” he stated, “you do something that should eventually act as a
deterrent. And that is the primary objective, to defend ourselves both in the
immediate sense and prospectively.”*> President Reagan addressed the nation to
confirm that Libya had played a “direct” role in the Berlin bombing; he said that
“Libya’s agents . . . planted the bomb.”** President Reagan stated that the air
strikes were conducted in retaliation for the Libyan role in the Berlin bombing


476 Readings on International Law

Other Provisions. Other articles specify new areas of express protection. Article
56 of Protocol I and 15 of Protocol II, for example, prohibit making works or
installations containing dangerous forces (such as dams or nuclear electrical
generating stations) the object of attack, except where that facility offers regular,
significant, and direct support of military operations and if such attack is the only
feasible way that support may be terminated effectively. In order to facilitate the
identification of such works or installations, Article 56(7) establishes a special
sign—three bright orange circles placed on the same axis—to mark these facilities.
Article 44 serves to neutralize those reservations by the Soviet Union and other
Communist States to Article 85 of the 1949 Geneva Convention for Prisoners
of War that have been used to deny prisoner-of-war status to captured combatants
on the allegation that they have participated in aggressive war or committed war
crimes (the argument of the Democratic Republic of Vietnam against U.S.
prisoners of war during the Vietnam war). Paragraph 2 of Article 44 guarantees
a combatant prisoner-of-war status notwithstanding his conduct (alleged or
actual) prior to capture. Articles 32 through 34 recognize a new human right,
the right of families to know the fate of their relatives, by setting forth a
requirement for belligerents to search and account for the missing in action, and
for the decent disposition and eventual repatriation of the remains of the dead.

Conclusion. The Protocols to the Geneva Conventions are the product of lengthy
negotiation and a great deal of compromise between delegations representing
diverse political views and geographic areas. They are evolutionary rather than
revolutionary, constituting a codification of customary international law rather
than embarking upon substantial change of that law. They are not without fault.
In addition to some attempts at politicization of the law of war, there were the
perennial efforts by moralists and idealists who, realizing the futility ofany attempt
to outlaw war, endeavored to interject language into the Protocols that could be
interpreted as making the law governing combat operations so restrictive as to
make the waging of war impossible. But the pages of history are strewn with
moralistic documents which failed in their usefulness because they attempted to
establish an unattainable standard of conduct.” In this regard the law of war is
no different from domestic and other international legislation in achieving respect
only to the extent it reflects the customary practice of those it seeks to govern,”!
Changes in limitations on the governing of military forces in combat can be
particularly critical, for any change likely to be perceived as a threat to the survival
of an individual, unit, or nation, or contrary to the Principles of War, tactical
considerations, or reasonable means for the commander’s accomplishment of his
mission is likely to be honored more in its breach than in its adherence.

To avoid the imposition of unrealistic restraints upon its armed forces, the
Protocols were the subject of detailed review by the Department of Defense and
the Joint Chiefs of Staff prior to their signature by the United States. A more


Chapter 8

Law and Strategy in Northern Waters*

Ken Booth

Whatever the prospects for UNCLOS If, history shows that norms will change and
will bring about changes in the law of the sea. Of immediate concem in this paper is the
issue of “creeping jurisdiction” and its effects on naval diplomacy and arms control. A proposal

Sor control of strategic ASW is presented.

Imost all law of the sea (LOS) issues have had a good airing in the recent

past, and in most respects the market place for papers is well past saturation
point. There is little scope for new ideas. Nevertheless, a further look at the
relatively neglected strategic aspects of the subject will provide an opportunity
to check the validity of old ideas, and see whether changing circumstances are
likely to affect the desirability or undesirability of various possibilities.

This discussion of the relationship between law and strategy in northern waters
falls into two main parts. The first examines “the immediate future,” that is, the
military implications (mainly the lack of them) of the law of the sea as it seems
likely to emerge from UNCLOS III. This subject has been widely if not deeply
discussed. There has been general agreement about the prospects, and the main
conclusions do not require challenging. The second part is more speculative. It
examines the “longer term” implications of the changing regime at sea, that is,
the possibilities that might emerge after the dust has settled from UNCLOS III,
or in the event of it not settling. The setting for these possibilities is the drift
towards creeping jurisdiction.

The Strategic Significance of Northern Waters. Northern waters have
been the area of major sustained naval confrontation since World War II. A useful
distinction can be made between the North Atlantic as an arena and as a source of
international conflict.' Throughout the postwar period the strategic significance
of these waters has been as an arena of conflict. This will be the case in future,
but not so exclusively.

In broad terms the strategic significance of northern waters can be seen from
four different points of view:

NATO Europe. The success of NATO rests on the ability of its members to
use the sea in peace and war: it is an alliance cemented by seawater. In peacetime,

* Reprinted from the Naval War College Review July-August 1981.


Parks 473

Protection of Medical Transportation. In 1910 two young Army doctors at Fort
Barrancas, Florida, built and flew an aircraft with a view to using it to evacuate
the wounded and sick from the battlefield. Although their experiment ended
with the crash of their aerial ambulance on its maiden flight, the concept
remained, with Marine 1st Lt. Christian F. Schilt performing one of the first
aerial combat evacuations during the campaign against Nicaraguan bandit Augus-
to Sandino in January 1928. Briefly, technology and the law were almost parallel
in their development. In 1923, at the XIth International Red Cross Conference,
the French delegation placed on the agenda for the XIIth Conference (in 1927)
a proposal to grant protection to medical aircraft. This proposal eventually
became Article 18 of the 1929 Geneva Convention for the Wounded and Sick
and provided protected status to aircraft dedicated exclusively to medical evacua~
tion, painted white with red crosses,'? and (absent special and express permission
to the contrary) operating solely to the rear of medical clearing stations.

Although aerial evacuation became an essential means of medical transporta-
tion during World War II, it was limited primarily to theater evacuation rather
than evacuation from the combat zone. Attempts to update the law at Geneva
in 1949 were influenced by the experience of World War II and the fact that
(unlike wheeled ambulances and hospital ships) seldom were aircraft dedicated
to exclusive medical use. Moreover, government experts argued that Article 18
of the 1929 Convention had found only limited application during World War
II, technical progress in fighter aircraft and antiaircraft having rendered unrealistic
any justification for the development and wide-scale use of protected medical
aircraft. It was anticipated that future conflicts would continue the practice of
theater aerial evacuation with fighter escort. As a result, Article 36 of the 1949
Geneva Convention for the Wounded and Sick provided protected status to
medical aircraft solely when “flying at heights, times, and on routes specifically
agreed upon between the belligerents concerned.”

In 1942 a civilian physician in Virginia wrote to the War Department
suggesting the feasibility of using helicopters for frontline medical evacuation.
Development of the concept lagged, however, and frontline medical evacuation
received little consideration by the 1949 Diplomatic Conference. The outbreak
of the Korean war the following year quickly changed regard for helicopter
evacuations, As early as 17 August 1950, Marine HO3S-1 helicopters of VMO-6
operating within the Pusan perimeter were evacuating wounded from the 5th
Marines’ regimental aid station to the Army’s 8076th Surgical Hospital at
Miryang, 20 miles away. Helicopters evacuated more than 8,000 wounded in
the first 16 months of the war alone. By the end of the war, as little as 43 minutes
elapsed between the time a Marine was wounded and the time he was placed on
board a hospital ship by helicopter, 30 minutes where delivery was to a land-based
hospital.'* Helicopter evacuation became the rule rather than the exception in


Rhys-Jones 571

The Theater Strategic Operations—Impact of the INF Treaty

No doubt, during the course of INF negotiations, the Soviet General Staff
provided the leadership with detailed estimates on how the Treaty would affect
the viability of their preferred strategy and doctrine. We can only speculate on
their findings, but some general conclusions suggest themselves.

They will have noted firstly that the United States has agreed to destroy nearly
500 of its most modern forward deployed systems, and especially those most
difficult to counter either by offensive or defensive means. Clearly NATO retains
alternative systems to support its strategy of flexible response, including some
capable of threatening targets deep in Soviet territory. Nevertheless, Soviet
leaders must take satisfaction in the fact that the agreement has successfully
confined NATO theater nuclear capability to systems which are more vulnerable
to the conventional air operation and which are more easily countered by
conventional air defenses. The threat has been made more manageable.

Soviet officials may well be disappointed that the Treaty places no formal
restrictions on alternatives or substitutes. NATO (indeed either party) can, in
theory, strengthen its inventory of dual-capable aircraft or assign a theater role
to sea-based forces. France and Great Britain have been quick to enter prelimi-
nary talks on a joint stand-off missile for their strike aircraft. The Soviet Union
has already made its policy abundantly clear. During a visit to Bonn early in 1988,
Soviet Foreign Minister Mr. Eduard Shevardnadze described such moves as
“unacceptable.”!> This must be seen as the opening of a crescendo of Soviet
propaganda on such issues. Western governments will not find it easy to evade
this onslaught. In an era of supposed détente, which they have done so much to
foster, their constituents will not readily understand why one set of weapons
should be destroyed, only to be replace by another. The Western alliance has
lowered the cost of aggression; it will not be easy to restore it.

It is relevant to ask at this point what the West has received in return for this
generous concession. Some will claim that the Soviet Union has accepted a
reduction in its former capability to wage decisive nuclear war. It must be left to
advocates of this view to explain how an operation of this kind is relevant to
Soviet strategic objectives. It will be more to the point to inquire how the Treaty
has affected Soviet ability to conduct the theater strategic operation, and within
that general concept to hamper or restrict an effective nuclear response. It does
nothing to limit Soviet ability to launch and conduct a blitzkrieg; and operational
tempo, it will be recalled, was one of the ways in which they sought to
circumvent the nuclear threat. What about the other—the correlation of nuclear
forces designed to secure escalation dominance?

On a superficial level, it would seem that the Soviet Union has surrendered a
favorable correlation of forces based on theater-deployed intermediate and
shorter range missiles. This impression is misleading. Any realistic measure of the


16 Readings on International Law

Council passes a definitive resolution requiring hostilities to cease. That is the
situation that existed in Operation Desert Storm.

The International Court of Justice has recently addressed certain aspects of the
right of individual and collective self-defense in the case of Nicaragua v. United
States.'* Some of the views expressed in the majority opinion take an extremely
narrow approach to this right and have caused concern among some international
lawyers who view the right as an important bulwark against aggression, par-
ticularly in a situation in which the United Nations Security Council fails to take
effective action to protect a victim State. Among the holdings of the Court that
I find troubling are the following:

¢ Although the term “armed attack” includes attacks by irregular forces or
guerrillas from foreign territory under certain circumstances, the term does not
include assistance to rebels in the form of weapons or logistic support.

* The exercise of the right of “collective” self-defense depends upon a
declaration by the victim State that it is the subject of an armed attack and an
explicit request for help to the assisting State. An assisting State cannot make this
determination on its own, even if it is a party to a treaty with the victim State
containing a clause stating that an attack on one is an attack upon all.

* Under Article 51 of the Charter, the failure by a State to report measures it
is taking in self-defense to the Security Council contradicts that State’s claim that
it is exercising the right of collective self-defense.

Although the judgments of the International Court of Justice are not binding
precedents in the same way that our domestic court decisions create law to be
applied in similar cases in the future, the Court is the most prestigious judicial
body in the international system. Its statements will have persuasive effect in
shaping the further development of the international law of self-defense.

he period since World War II has seen greater growth and change in

international law than in any comparable period of history. There were
many stimuli for these changes—the total victory by Allied forces in World War
II, the creation of the United Nations and the other organizations it spawned,
the emergence of the Cold War, the decolonization movement of the 1960s and
1970s, the recognition of the concept of internationally protected human rights,
and many more. With the end of the Cold War, the breakup of the Soviet empire
and the hoped-for emergence of democratic States in its place, the growth of the
international environmental movement, and many other events we can not
currently perceive, the next half-century will probably bring even more dramatic
changes in international law. For like domestic law, international law is not a
static body of rules but rather a living creature, continually forged and shaped to
serve the needs of an international community that itself is constantly changing.


Boma 199

unrelieved tension. It serves as an example of the very situation in which the
mettle of the U.S. maritime strategy and our national resolve will be tested.
“Freedom of the Seas” is not a mere slogan designed to arouse public passion
and facilitate funding for a 600-ship navy. Rather, it forms the cornerstone of
our ability to defend our vital interests, and those of our allies, in this “era of
violent peace.”

High-seas navigational freedoms and overflight rights have been increasingly
burdened by the encroachments of numerous coastal states. With the advent of
the Freedom of Navigation (FON) Program in 1979, as subsequently reaffirmed
by President Reagan in 1983, the United States has assumed the mantle of
guardian and enforcer, where needed, of the international community’s interests
in the maritime common. One claim which appears to have exceeded recognized
international peacetime norms is the 50-mile “military boundary zone,”
proclaimed by the People’s Democratic Republic of Korea (North Korea) in
1977.

The Freedom of Navigation Program

In his ocean policy statement of 10 March 1983, President Reagan emphasized
the role of the United States as a leader in developing customary and conventional
law of the sea. Broadly stated, the U.S. objective, both for reasons of self-interest
and for interests common to all nations, is to “facilitate peaceful, international
uses of the oceans and provide for equitable and effective management and
conservation of resources.””

Though earlier, mainly because of its deep seabed mining regimen, President
Reagan had announced that the United States would not sign the 1982 United
Nations Convention on the Law of the Sea (1982 LOS Convention), on this
occasion he stated that because the Convention’s provisions dealing with the
traditional uses of the oceans, including navigation and overflight rights, were in
consonance with and represented customary practices, these rights would be
recognized, But this recognition was expressly conditioned by the following
important caveat: “so long as the rights and freedoms of the United States and
others under international law are recognized by such coastal States.” Further,
the President went on to state that the United States, as a matter of national
policy: “will exercise and assert its navigation and overflight rights and freedoms
on a worldwide basis in a manner that is consistent with the balance of interests
reflected in the convention . . . [but will not] . . . acquiesce in unilateral acts of
other States which are designed to restrict these recognized rights and freedoms.”

As stated earlier, this was not a new development. Since the Carter administra-
tion initiated the program during March 1979, the United States has successfully
conducted a systematic Freedom of Navigation Program to protect U.S. and


Wiegley 75

If transiting naval forces wish to avoid the restrictions inherent in innocent
passage, they can do so simply by remaining outside territorial seas—a measure
that usually has no effect on mission objectives. Of course, the option of avoiding
territorial seas is not available where the latter enclose international straits, and
absent that option the potential for conflict increases significantly.

Transit Passage. The issue of passage through international straits was tentatively
compromised at UNCLOS III through the creation of the concept of transit
passage.'° Under this concept, submarines are not required to surface within straits
and aircraft are permitted to fly over straits without first obtaining the permission
of the coastal State. In addition, the RICNT specifies that the right of transit
passage cannot be suspended.

Two questions become relevant at this point. First, what will govern passage
through straits if UNCLOS III fails to produce a convention? And second, is the
concept of transit passage adequate to prevent confrontation over the use of straits
by naval forces?

If UNCLOS III does not result in a law of the sea convention, a number of
States probably will assert claims that they feel are justified by the majority view
reached during the Conference negotiations. For example, some States may claim.
a 12-mile territorial sea and a 200-mile economic zone on the basis of the
tentative Conference agreement on those two issues. If such claims are in fact
made, it will be because the final UNCLOS III negotiating text has more -
legitimacy than the law it was designed to replace, even though the former would
have been created for negotiating purposes only. It is admittedly incongruous to
say that a new legal rule can be justified by reference to unsuccessful negotiations,
but in the situation postulated logic may have to accede to events. Should that
happen, the areas of broadest agreement at UNCLOS III will become a new
source of international law, at least to the extent of explaining the impetus and
general acceptance of post-Conference developments.

Given, then, the possibility of unilateral claims arising from UNCLOS III that
affect international straits, the naval powers can look to the same source of law
to justify adherence to the rules of transit passage. The latter, after all, represents
a fundamental compromise accepted by the coastal States in exchange for the
recognition of important prerogatives in the area of ocean resource exploita-
tion.!® To be sure, the new rules give maritime states large economic zones of
their own, larger than those of developing coastal States, but overall the maritime
States stand to lose more economically than they gain given the technology gap
and the realities of ocean use prior to UNCLOS III. Thus, if developing coastal
States pursue the advantages offered by a regime modeled after the RICNT, the
naval powers are entitled to recognition of their interests as well, particularly
transit passage through international straits.


370 Readings on International Law

when he stated the United States “is permitted to use force to preempt future
attacks, to seize terrorists, or to rescue its citizens when no other means are available."

Four basic arguments in favor of anticipatory self-defense have been advanced
and each has application with respect to our intervention in Panama.” First,
Article 51 of the Charter embraces the inherent right of self-defense (which
includes anticipatory self-defense). Second, it is very difficult to distinguish those
acts which constitute preparation for aggression (but which might not justify
responding coercion under a restrictive view) and those that constitute elements
of an attack. Third, the destructive power of modern weaponry makes it
unreasonable to expect a State to await a first strike before responding. 3 Finally,
a more restrictive position would only benefit an aggressor."

A farther requirement of the “minimum world order system,” represented by
Articles 2 and 51 ofthe U.N. Charter, against which the U.S. intervention in Panama
must be tested is the customary international law principle of proportionality,
Although the corresponding requirement of “necessity”'® is directly embraced, at
least implicitly, within Article 51, the same arguably cannot be said for “propor-
tionality of response.” Professor Myers McDougal and Dr. F, Feliciano of Yale
University Law School have defined the rule as follows: “Proportionality in coercion
constitutes a requirement that responding coercion be limited in intensity and
magnitude to what is reasonably necessary promptly to secure the permissible
objectives of self-defense. For present purposes, these objectives may be most
comprehensively generalized as the conserving of important values by compelling
the opposing participant to terminate the condition which necessitates responsive
coercion.”!® This definition simply requires a rational relationship between the
intensity of the attack and the intensity of the response. Although the relationship
need not approach precision, a nation subjected to a number of State-sponsored
attacks on its citizens is not entitled, for example, to destroy in its entirety the capital
city of the offender State.

Other canons of military practice, such as conservation of resources, support
this principle of restraint in defense. The United Nations has condemned as
reprisals those defensive actions which greatly exceed the provocation.!” Where
acontinuation of hostile acts beyond the triggering event or events is reasonably
to be expected, however, as was the case in Panama, a response which anticipates
requirements of a continuing nature beyond the scope of the initial attack would
be legally appropriate.

The addition on 20 December of some 9,500 troops from Fort Bragg and Fort
Ord, among others, to the 13,000 soldiers within-the U.S. forces already in
Panama can hardly be viewed as exceeding the parameters established by this
tule, given the significant forces under Noriega’s control.


486 Readings on International Law

surveillance, targeting and ordnance delivery. ROE may delimit the conditions
for employment of the systems and platforms, but should not delineate specific
tactics. All ROE should contain political and military policy guidance as well as
guidance on those areas of international and domestic law that are subject to
misinterpretation. They should not cover safety-related restrictions. They should
not set forth service doctrine, tactics or procedures, for example, relating to
airspace management. In essence, ROE should never be designed as “rudder
orders,” and never substitute for a strategy for the employment of the forces.

Subject Matter of ROE

ROE may be general and comprehensive, so as to constitute part of the
fighting instructions of a fleet, and in this case they must envisage a range of
contingencies, Or they may be issued specifically for a particular operation.!”
Peacetime ROE cover such matters as general maritime operations, interception.
and engagement of aircraft, and defense operations for specific locations.

Problems with Existing ROE

Frequently ROE are not well understood by those who need to know them,
and often are neither clearly nor comprehensively written.!® ROE are often best
known by the junior officer who has custody of the documents. Occasionally
even the existence of the ROE is known only to him! ROE are rarely seen by
anyone else, except the commander and his operations and intelligence officers.!?
Perhaps it was this state of affairs that led VAdm Thomas Weschler, USN (Ret.),
while Chairman of the Naval Operations Department of the Naval War College,
to advise the senior College of Naval Warfare students to read the ROE held by
their commands as soon as they report to each duty station.”

The rules are often perceived as being either too detailed or complex, or as
being mere tools to implement decisions. Yet they reflect current policy which
may not be found elsewhere, particularly in an emergency. Obviously they
cannot be found by reference to a compilation if it does not exist—even in the
command center. Nor is an emergency the time to locate and learn the rules.”!
Additionally, the current set of peacetime ROE is too narrow and too specific
to be of general use—because the ROE were developed in response to particular
situations. The result is patchwork guidance. There exists no overall national
policy guidance to the unified and specified commanders for the use of armed
force in all environments during peacetime or in armed conflict. Some have told
me no coherent and overarching ROE are needed, since the system has shown.
its inherent flexibility without them. Perhaps so, but no timely effort was
mounted to aid the Pueblo, in part, because “we had to check with higher
authority since the ROE were not clear enough” despite ample legal authority


Hu and Oliver 185

of national jurisdiction. For this majority of coastal States, therefore, attention
will thus, naturally, focus on the seas within the 200-mile EEZ where it is more
likely for them to contemplate the enjoyment of national sovereignty as well as
the natural resources therein. The rights, jurisdiction, and duties of coastal States
within these 200-mile limits constitute the essence of the national maritime
interests that coastal States should attempt to maximize or optimize. It follows
that coastal States can plan their naval forces according to the rights, jurisdiction,
and duties established in the Convention for the upholding and protection of
their national rights within the 200-mile limit waters.”

A Definition of Small Navies and Their Functions

The governmental practice and enforcement of these legislative and jurisdic-
tional rights falls on the coastal State’s naval force. Basically, this is a constabulary
task to make sure that foreign ships within these waters comply with all the laws
and regulations of the coastal State for the maintenance of peace, good order and
security, for the enjoyment of its own natural resources, and for the protection
of sovereignty—a task defined by Ken Booth as a policing function for the coast
guard responsibilities and nation-building. A navy for this constabulary task needs
a convincing physical capability to deter misbehavior of foreign ships and to arrest
them if necessary. The conventional deterrence and defense function of a navy
as defined by Booth is: to prepare for wartime tasks, to deter hostile intrusion
into maritime frontiers, to contribute to local maritime stability, to protect
national claims in contiguous seas, and to extend national claims in contiguous
seas, Since the enforcement of national rights is, by its nature, against foreign
activities within national (economic) waters, it is, therefore, inevitably, involved
with international relations and diplomacy.

Such activities are also undertaken for political and diplomatic purposes, such
as to improve bargaining strength, to threaten force from the sea to support
policy, to improve one’s ability to affect the course of specific diplomatic
negotiations, or to create some kind of national prestige at home and abroad.
This diplomatic function has been generally and mistakenly regarded to be a
minor or indistinct role for small navies. The traditional sense of naval diplomacy
involves the use of warships in support of a State’s general bargaining position,
particular negotiating stances and influence-building tactics, as well as repre-
sentational tasks of various kinds.*? Both in conventional wisdom and in practice,
this implies and entails the application of naval forces at great distance; a function
beyond the capability ofsmall navies. However, inasmuch as these naval functions
are linked to the provisions of the 1982 LOS Convention, small navies are now
placed into a new context in terms of naval diplomacy—new in the sense that
the application of naval forces and the implementation of diplomatic functions


Robertson 549

surrender in air combat is not generally offered. However, if surrender is offered
in good faith so that circumstances do not preclude enforcement, it must be
respected.”* Furthermore, parachutists descending from disabled aircraft may
not be attacked while in the air and must be provided an opportunity to surrender
upon reaching the ground.”

The situation in land warfare is more ambiguous. A noted authority, Professor
James M. Spaight, observed in 1911: “Willingness to surrender is usually
indicated by the hoisting of a white flag, or some improvised substitute for it,
but there is no settled procedure in this matter. Some troops throw down their
arms; others hold up their hands (such was the Boer practice). The Prussian appeal
for mercy in 1870 was to raise the butt-end of the needle-gun; this the French
considered insufficient and made them fall on their knees. In the war of 1904
the Russians sometimes went to the length of embracing the enemy to whom
they wished to surrender. There are so many diverse ways of indicating surrender
that it seems desirable for one universal procedure to be settled by international
agreement.”*!

Professor Spaight’s plea for an international agreement went unheeded,
however, and the current U.S. Army field manual on the law of land warfare
does not discuss acceptable methods of indicating an intention to surrender.’”
With respect to the use of a white flag, it states that the “white flag, when used
by troops, indicates a desire to communicate with the enemy. The hoisting ofa
white flag has no other signification in international law. . . . If hoisted in action
by an individual soldier or party, it may signify merely the surrender of that soldier
or party. It is essential, therefore, to determine with reasonable certainty that the
flag is shown by actual authority of the enemy commander before basing
important action upon that assumption. The enemy is not required to cease firing
when a white flag is raised.”*

Confusion on what is a proper sign of surrender in land warfare was amply
demonstrated in the recent Gulf War by the incident in which Iraqi tanks
approached Saudi Arabian troops with their gun turrets turned to the rear, a sign
of surrender in the opinion of some. Instead of surrendering, however, they
reversed their guns and fired on the Saudis.” If in fact this was a valid sign of
surrender, then the subsequent attack on Saudi forces was perfidy, a war crime.
If not, it was a lawful ruse of war.*®

The circumstances of land warfare also complicate the surrender of units or
individuals. Again, to quote Spaight, a “regiment, squadron, company or squad
of men is not like a ship, which, when it ‘hath its bellyful of fighting,’ hauls down
its colours and is clearly out of the fight.”*” The result, again in Spaight’s words,
is that “in the storming ofa trench, when men’s blood is aboil and all is turmoil
and confusion, many are cut down or bayoneted who wish to surrender but who
cannot be separated from those who continue to resist.”**


504 Readings on International Law

city in the region will be exposed to the sting of a formidable and potentially
lethal attack.

In the past, Israel has enjoyed a regional monopoly over weapons of mass
destruction. The one direct challenge to its presumed nuclear stranglehold—
Traq’s effort to build an atomic weapon in the late 1970s—ended in the bombing
of the main Iraqi research reactor in 1981. Similar preemptive strikes would be
less useful to curb the spread of biochemical weapons. “If a country is serious
about acquiring chemical weapons, it is hard for another country to eliminate
that capability the way Israel knocked out Iraq’s atomic bomb program,”
concludes one analyst. “These weapons can be made and stored in small sites all
over a country, and you can never be sure you got them all.”

This is equally true for biological and toxin weapons. Like their chemical
cousins, these agents can be prepared and stored in a small facility at relatively
little capital investment. A batch of anthrax capable of killing millions of ‘people,
for example, can be concocted in a “room the size of a broom closet.”

Although the present furor over the Middle East balance of power centers on
chemical agents, in time the biological side of the spectrum will be viewed as
even more insidious and destabilizing. Chemical weapons, in comparison, are
crude. Despite their lethal effect, chemicals require bulk application to qualify as
a true weapon of mass destruction. The nerve gases in modern arsenals are,
essentially, refined versions of agents developed prior to World Wars I and II.
While some additional refinements can be expected, pure chemical agents are
approaching the end of their evolutionary path. The menace of the future lies in
biologicals—pathogens and toxins—which, thanks to the advancing power of
genetic engineering, have a far richer potential for harm. If the proliferation of
poison gas in the 1990s creates a decade of chemical concerns, the largely
untapped, but nearly unlimited nature of this new biotechnology will threaten
to turn the next century into a diabolic era of military biology.’

The Soviet Perspective

The Soviet Union has long treated the entire gamut of biochemical weapons
asa valuable adjunct to their overall war-fighting capability. Military implications
of the biotechnological revolution have not escaped their notice. The magnitude
of the Soviet effort to tap the dark side of this new technology is demonstrated
by the existence of at least seven highly secure biological warfare centers under
military control in the U.S.S.R.'?

The scope of this program is mirrored by the multiple uses for which their
biological and chemical arsenal is intended. In general, the Soviets consider these
weapons to be excellent tools for sabotage and interdiction. Their doctrine
emphasizes the need to prevent an enemy from effectively marshalling his forces,
If the Soviets were to use biochemical weapons during an attack on NATO, a


70 Readings on International Law

I have already identified as subject to broad agreement. But the problem is that
from the outset it was conceived that this Conference would seek to negotiate
a package deal in which maritime interests were balanced against resource
interests. Insofar as the developing countries, represented in the Group of 77,
considered navigational interests as mainly of concern to the developed maritime
and naval powers, they have continued to insist that their compensation for these
concessions would have to take the form of agreement on a seabed-mining
regime in which all countries would be represented and in which all countries
would share. As a practical matter, it is virtually impossible to visualize any
document coming into force that deals with the navigational issues without also
comprehending the resolution of these resource-related problems. So, while it’s
conceivable that if the Conference failed, there might be an interval in which
the world conimunity paused and regrouped and then tried again on a basis
drawing on pieces of the present effort, it’s certainly not possible that we can
simply lop off seabed mining, for example, and then get enough ratifications to
bring a treaty into force dealing with the remaining issues.

What is the U.S. position on deep-sea mining?

The U.S. position on deep-sea mining is that our companies must have assured
opportunity to engage in seabed mining under reasonable terms and conditions,
including security of tenure under their contracts with the International Seabed
Authority, and a fair chance to recover their investment and achieve a fair return.
The access that we will have, of course, is dependent upon negotiating a regime
that is capable of attracting the necessary investment. Nobody is now prepared
to put any money into seabed mining except four multinational consortia and
one French group—the four are multinational consortia headed by the U.S. Steel
Company, Kennecott, Lockheed, and the International Nickel Company of
Canada. Each of these consortia includes components belonging to other
industrial countries—Japan, Great Britain, Germany, the Netherlands, and
Belgium, in varying combinations. The heart of the problem is designing a regime
that will justify risking up to a billion dollars in a single seabed-mining project.
Our constant effort is to convince the developing countries that it is in their
interest, as well, to agree on a seabed-mining regime that can attract investment.
I don’t know how I have failed thus far even to mention “the common heritage
of mankind.” This phrase goes back to a speech in 1967 by Arvid Pardo, then
the Permanent Representative of Malta to the United Nations, which led to the
adoption in 1970 of a U.N. Resolution containing a declaration of principles
designed to govern seabed mining, including the declaration that the resources
of the deep seabed constitute the common heritage of mankind. Our message is
essentially that the common heritage of mankind will remain indefinitely without
use to humanity in the vast depths and enormous pressure and cold of the ocean


518 Readings on International Law

4, In 1987, the Soviets alleged that AIDS was created by an American biological weapon experiment
gone haywire. Although no evidence has been offered to support this charge, some studies conclude that it
would be possible to manipulate genes to interfere with the body's immune system. See id, at 97.

5. Feith, Biological Weapons & the Limits of Ams Control, The National Interest 81 (Winter 1986/87).
Feith served as deputy assistant secretary of defense for negotiations policy from March 1984 to September
1986.

6. Gordon, Libya Says It Can Make Chemical Arms If Others Do, New York Times, 10 January 1989, p.
A12, Libya is reported to have a joint biological warfare program underway with Romania. See Douglass,
Soviets Surge in Biochemical Warfare; West Remains Drugged with Apathy, Armed Forces Journal International 58
(August 1988).

7. Fialka, Chemical Weapons Spread in Third World, Pose Challenge to West, Wall Street Journal, 15
September 1988, p. 1; Lescaze, Quest for Way to Block Biological Weapons Is Itself Called a Threat, Wall Street
Journal, 19 September 1988, p. 1; Harris, CBW Arms Control: A Regime Under Attack? Arms Control Today 9
(September 1986). The following nations are reported to be either members of the chemical club or on the
verge: United States, Soviet Union, France, Iraq, Iran, Egypt, Syria, Israel, Libya, North Korea, South Korea,
Taiwan, China, South Aftica, Romania, Czechoslovakia, Indonesia, Viemam and Ethiopia. No nation admits
to stockpiling biological weapons. Countries believed to have the capacity for developing a bioweapon on
short notice include the United States, Soviet Union, Iraq, Egypt, Iran, Israel, Syria, China and Romania.

8. Modern weapons and munitions are enormously costly, and very few countries have the resources to
spend large sums developing and stockpiling arms. The more expensive war stays, the fewer the nations that
can pose a conventional threat. Unfortunately, biological and chemical (B/C) weapons threaten a lot of
destruction at relatively little cost. In the judgment of Robert Gates, the new Deputy National Security Advisor,
“che most immediate threat to world peace may well come from the proliferation of chemical and biological
warfare in the Third World,” David Ottaway, Middle East Weapons Proliferate, Washington Post, 19 December
1988, p. All.

9, IKLE & WOHLSTETTER, DISCRIMINATE DETERRENCE: REPORT OF THE COMMISSION ON
INTEGRATED LONG-TERM STRATEGY 10 (1988).

10, Cushman, U.S. Cites Increase in Biological Arms, New York Times, 4 May 1988, p. A9.

11. A breakthrough in biology described as “the most significant technological event since the Industrial
Revolution,” DOUGLASS, & LIVINGSTONE, AMERICA THE VULNERABLE 3 (1987), will be difficult to
ignore, either militarily or commercially. The genie of genetic engineering cannot be stuffed back into its bottle
for two basic reasons. First, the logic of deterrence and counterdeterrence suggests that in a fearful world nations
‘will tend to explore and, where practical, exploit new technology for military purposes—if only to forestall an
adversary from gaining an advantage.

Second, the commercial utility of genetic engineering continues to expand. As global oil supplies dwindle,
the economics of production will gradually encourage chemical and pharmaceutical industries to use
biotechnological methods in key production processes. As 2 result, even without overt military pressure, a vast
reserviour of gene-cloning expertise will build up. This commercial momentum means that “in the not-too-
distant fiture, countries throughout the world will leam how to produce an enormous variety of ange biological
molecules, including toxins, on a scale that was previously inconceivable.” Tucker, Gente Wars, Foreign Policy
(Winter 1984-85).

12. Ottaway, supra n. 8 at A4.

13. Moffett, Israel: Determined Not to be a Chemical Target, Christian Science Monitor, 13 December 1988,
p. BIS.

14. Ottaway, supra n. 8 at A4.

15. Israeli Satelite Is ‘Threat? Say Arabs, Jane’s Defense Weekly 753 (1 October 1988)

16, Fialka, supra n. 7 at 1, citing an unidentified “U.S. government expert.”

17. Dr. Robert Kupperman, quoted in Rempel and Wright, How Spying, Analysis and Luck Provided Proof
of Libyan Chemical Warfare Plant, The Providence Sunday Journal, 22 January 1989, p. A-8.

18. However, even if chemical weapons are just a harbinger of greater troubles to come, at present the
main threat to Middle East stability appears to be chemical. With Israel holding an estimated 50-100 nuclear
weapons and Arab adversaries beginning to amass a significant number of deliverable chemical and perhaps
biological warheads, the region is entering a hair-trigger environment.

In essence, the Middle East is undergoing a shift from Israel's assured military superiority to a regime of
reciprocal deterrence loosely equivalent to the U.S./Soviet notion of mutual assured destruction (MAD).
Understandably, Israel views this turn of events with alarm and is currently mulling over whether to invest in
an offensive or defensive strategy to deal with the new Arab threat.

The Middle East may simply be too volatile to permit transition to, much less maintenance of, a stable
MAD equilibrium. Prime Minister Shamir and Defense Minister Rabin have already dropped strong hints that
major chemical attacks against Israel would be met with a nuclear rather than chemical or conventional reply.
(See Spector, Nonproliferation Afier the Bomb Has Spread, Arms Control Today at 10 (December 1988). The



xvi

be noted that Professor Alfred P. Rubin, of the Fletcher School of Law and
Diplomacy at Tufts University, who has authored two articles to Part I, is also
a former Stockton chairholder (1981-82).

Part II brings together articles on oceans law, a field of obvious interest to the
Naval War College. The period during which these articles were written was
one of great transition in connection with the 1982 United Nations Convention.
on the Law of the Sea. Some of the articles written before the treaty was
concluded may seem somewhat dated, but we have included them because they
provided valuable insight into the important debates that produced the landmark
treaty. This section concludes with Admiral Robertson’s “Newport Paper,”
which provides a very usefill overview of “The ‘New’ Law of the Sea and the
Law of Armed Conflict at Sea.”

Part III examines “use of force” law (jus ad bellum), and focuses primarily upon
a series of “case studies” ranging from Grenada and Libya to Panama. Of
particular interest may be the contribution by former Secretary of the Navy
James H. Webb, Jr., from the Winter 1988 issue of the Review, which, while
not primarily a “legal” analysis, provides an interesting insight of senior service
leadership on when and how force should be used combined with recollections
of the frustrations faced by an Infantry officer in Vietnam in the 1960s. Originally
delivered as a lecture to the War College’s 1987 Current Strategy Forum, we
thought the piece likely to be of sufficient interest to the international law
community as to warrant inclusion despite its lack of “legal” focus.

Part IV looks at terrorism. The eight articles making up this section could
have been included in parts III or V, but given the interest in this problem
reflected by the number of articles published on the subject in the Review, we
thought it better to group them together. Particularly noteworthy, perhaps, in
this section are the overview of United Nations efforts to respond effectively to
international terrorism by the late Professor L.F.E. (Fred) Goldie, a former
Stockton chairholder (1970-1971), and the concluding article on “An Appraisal
of Lawful Military Response to State-Sponsored Terrorism,” by Colonel James
P. Terry, USMC—who retired earlier this year after serving three years as Legal
Adviser to the Chairman of the Joint Chiefs of Staff.

Part V consists of articles on the law of war (jus in bello). It begins with an
analysis of the 1977 Protocols to the 1949 Geneva Conventions written by W.
Hays Parks, a former Stockton Professor (1984-1985), followed by an excellent
discussion of rules of engagement by J. Ashley Roach (now with the Office of
the Legal Adviser to the Department of State). This section concludes with a
discussion of international environmental law and Operation Desert Storm by
Colonel Terry, and a piece on “The Obligation to Accept Surrender” by
Admiral Robertson.

Finally, part VI collects three additional articles which we believed warranted
inclusion in this volume but which did not fit conveniently under any of the


Neubauer 191

Article 21 specifies matters as to which the coastal State “may adopt laws and
regulations . . . relating to innocent passage. . . .” Among these are “the safety
of navigation and the regulation of maritime traffic.” Foreign ships exercising
the right of innocent passage are required to comply with such coastal State laws
and regulations and with generally accepted international regulations relating to
the prevention of collisions at sea. Article 22 authorizes a coastal State to, “where
necessary having regard to the safety of navigation, require foreign ships exercising the
right of innocent passage through its territorial sea to use such sea lanes and traffic
separation schemes as it may designate or prescribe for the regulation of the
passage of ships.” (Emphasis added.)

Article 24 provides that the “coastal State shall not hamper the innocent
passage of foreign ships through the territorial sea” or “impose requirements on
foreign ships which have the practical effect of denying or impairing the right of
innocent passage” or “discriminate in form or in fact against the ships of any
State... .”

Under Article 25, the “coastal State may take the necessary steps in its territorial
sea to prevent passage which is not innocent.” Additionally, the coastal State
may, “without discrimination in form or in fact among foreign ships, suspend
temporarily in specified areas of its territorial sea the innocent passage of foreign
ships if such suspension is essential for the protection of its security. . . .”
(emphasis added.) .

Finally, Article 30 provides that, “[i]f any warship does not comply with the
laws and regulations of the coastal State concerning passage through the territorial
sea and disregards any request for compliance therewith which is made to it, the
coastal State may require it to leave the territorial sea immediately.”

Thus, except for sea-lanes and traffic separation schemes necessary to the safety
of navigation, the text of the 1982 LOS Convention does not authorize coastal
States to limit the passage of ships, whether warships or merchantmen, to
traditional or other specifically designated navigation routes. It is also important
to note that the innocent passage regime does not authorize coastal States to
condition innocent passage for warships on any type of prior notification or
permission.

Position of Soviet Naval Writers

The current thinking of some Soviet writers is reflected in a recent article by
Captain 1st Rank R. Sorokin, Innocent Passage of Warships Through Territorial
Waters.4 Captain Sorokin repeats the generally accepted view that the regime of
innocent passage is intended to strike a balance between the need for maritime
mobility and the need for coastal State security. He rejects an interpretation that
would permit coastal States to require prior notification or authorization for
warships but argues that warships may be restricted to selected routes.


40 Readings on International Law

rising international claims to law-making and law-enforcing authority for special
purposes in large areas of what formerly were considered to be the high seas,
claims which the United States makes also, principles of reciprocity would
normally require an intruding military vessel to leave rather than contest any
assertion of right based on the extension of territorial jurisdiction seaward. There
may be cases in which passage is forced, but those must be dictated by higher
authority, which will presumably have considered the impact of reciprocity,
minimal force, and effectiveness, as well as the relative persuasiveness of the
autointerpretations of all States concerned, before issuing the orders. But as a rule
of thumb, a naval commander can no longer confidently oppose territorially
based claims with assertions of historical rights based on glib labels like “high
seas” and “freedom of navigation” or even “innocent passage.”

7. “Functional” Sovereign and Diplomatic Immunities. Traditional perceptions of
the immunities of diplomats and of arms of the sovereign, including naval vessels,
have been rapidly changing in the past few years. While there can be no doubt
of the illegality of the Iranian seizure of American diplomatic and consular
personnel and even private American nationals in Teheran in 1979, the 1961
Vienna Convention on Diplomatic Relations ended whatever had remained of
theories of absolute diplomatic immunities and replaced it, to the extent
developing conceptions of law outside the treaty framework had not already
done so, with a conception of “functional immunities”: Immunity from host-
State territorial jurisdiction limited to what was necessary for the accomplishment
of the diplomatic mission. Old catch-phrases, like “train of the Ambassador,”
and the idea that an embassy is a little bit of foreign territory enclaved in the host
State, to the extent they had lived till then, died. The United States agrees with
the changes, and it would do us no good to resist them. Thus, when a foreigner
seeks asylum from his own government in an American embassy, the right of the
United States to grant that asylum is severely limited. Occasionally, heart-
wrenching circumstances, as with Soviet religious dissidents in Moscow, or
Cardinal Mindszenty in Budapest, lead the United States to permit an asylum
situation to arise where there is really very little legal basis for our position. But
those are rare and decided at the highest political levels in the United States. A
naval commander faced with a fleeing foreigner may be in a somewhat better
practical position if he can leave the territorial waters of the host State, but his
legal position is also weak. As with embassies, he has no legal immunity from the
actual prescription; he must rest on his functional immunity from local enforce-
ment action. He may violate international law by not paying due regard to the
law of the coastal State.

This is not to say that, as a rule of thumb, asylum should always be denied.
There are humanitarian concerns that permit it. But the naval commander must
be aware that his immunities are limited and grave difficulties may result if he
cannot defend his command before the fury of a host State convinced that its




Stavridis 157

which means sometime in 1984, according to most observers. [The treaty actually entered into force on 16
November 1994.]
2, Bemard D. Nossiter, Soviet and the U.S. Clash on Sea Law, The New York Times, 10 December 1982,
. A10.
Pana, Ronald Reagan, Presidential Statement, issued in Washington, D.C, 8 July 1982. Also mentioned in
this statement as U.S. problems with the Law of the Sea Treaty were deep seabed mining provisions in general,
the treaty’s decision-making process, and the application procedure for deep seabed miners.

4. Convention on the Law of the Sea and Resolutions I-IV, Third UN Conference on the Law of the Sea,
reproduced by the Office of Ocean Law and Policy, Department of State, Washington, D.C., June 1982,
Article 144, at 64.

5, Id, Annex III, Article 5, at 162-164,

6. MOORE, JANE'S OCEAN TECHNOLOGY 1981/82 750-755 (1981).

7, Boczek, The Transfer of Marine Technology to Developing Nations in International Law. Paper presented at
the 22nd Annual Convention of International Studies Association, Philadelphia, 18-20 March 1981, at 32-33.

8, A. Slingerland and P. Wilmot, ed., Technology Assessment and the Ocean, Proceedings of the International
Conference on Technology Assessment, Naval War College Library, Newport, R.L., at 20-30, based on
conference held in Monaco, October 1975.

9, EARNEY, PETROLEUM & HARD MINERALS FROM THE SEA 36 (1980). For cost of construction,
see recent issues of Ofhore Magazine or the Oil & Gas Journal.

10. Ronald Reagan, Presidential Statement, issued in Washington, D.C., 20 January 1982, at 1.

11, James Malone, Statement before the House Merchant Marine and Fisheries Committee (Washington, D.C.,
23 February 1982), at 1.

12, Supra n. 1.

13. See for example, interview with Mame Dubs, director of corporate technology at Kennecott
Corporation, Deep Seabed Mining: Where Do We Go From Here?, E&MJ Magazine, September 1981, at 125, for
representative corporate reaction to the mandatory transfer process. The Boston Globe and The New York
Times, on the other hand, have favored signing the treaty in editorials in 1982.

14, Convention on the Law of the Sea and Resolution I-IV, Article 136, p. 61. The concept of “the common
heritage” also appears in many U.N. documents and resolutions, including U.N. General Assembly Resolution
2749 (KXV), 1970, “Declaration of Principles Governing the Sea-Bed and the Ocean Floor, and the Subsoil
‘Thereof, beyond the Limits of National Jurisdiction,” 25 G.A.O.R. Supp. 28 (A/8028), 17 December 1970,
at 24,

15. These demands are voiced in a wide variety of fora and discussion, including General Assembly
resolutions; statements from meetings of other world organizations like the OAS, OAU, or OPEC; conferences
such as the law of the sea meetings or north-south summits, etc. A good summary from the broad position of
the third world can be found in Grubel, The Case Against the New International Order, THE CONTEMPORARY
INTERNATIONAL ECONOMY: A READER 484-490 (Adams ed. 1979).

16, Position Paper on Technology Transfer, Technology Transfer Task Force, Chamber of Commerce of the
United States of America, Washington, D.C., 5 August 1981, at 1-8,

17, Id. ati,

18, Id, at 1-8,

19. Id, at 5-6.

20. Sea Law—A Rendezvous with History, U.N. Chronicle 14 June 1982).

21, In fact, the United States was one of only four countries to vote against the current draft of the Law
of the Sea Treaty. The entire course of the often stormy eleventh session of the UN Conference, March-April
1982, is well documented in many articles. See especially the series of articles by Bernard Nossiter in The New
‘York Times, the U.N. press releases (issued daily) on the entire session, or supra n, 20.

22, Bernard Nossiter, U.S. Is Said to Be Isolated in Its Opposition to Sea-Law Treaty, The New York Times,
9 December 1982, at All.

23, Id.

In addition to the sources mentioned above, two government documents that present the entire Law of
the Sea issue, especially in regard to the U.S. position are:

Hearings before the Subcommittee and the Committee on Merchant Marine and Fisheries, House of
Representatives, 97th Congress, on The Law of the Sea, 22 October 1981, 23 February, 20, 27 July 1982, Serial
Number 97-29,

Hearings before the Committee on Foreign Affairs, House of Representatives, 97th Congress, Second Session,
17 June, 12 August, and 16 September 1982, U.S. Foreign Policy and the Law of the Sea.


Parks 477

detailed review is underway within the services, DOD, and other agencies of the
U.S. Government to insure that U.S. interpretations of the Protocols are attuned
to the realities and conditions of combat prior to submission of the Protocols by
the President to the Senate for its advice and consent to ratification. The United
States and its NATO allies are conducting a separate review of the Protocols to
insure their common understanding of the Protocols’ effect. If approved by the
Senate, the Protocols will go into effect for the United States 6 months after
deposit of its instrument of ratification with the Government of Switzerland,
adding further definition to the law of war.

Major Parks was serving in the Office of the Judge Advocate General of the Navy, Intemational
Law Division when this article was first published. He was the senior U.S. representative to the
Seminar on the Dissemination of the Geneva Conventions in Warsaw in 1977.

Notes

1, Participating in the signing ceremony on 12 December 1977 were Austria, Belgium, Canada, Chile,
Ivory Coast, Denmark, Egypt, El Salvador, Ecuador, Finland, Ghana, Guatemala, Honduras, Hungary, Iran,
Ireland, Iceland, Italy, Liechtenstein, Jordan, Luxembourg, Morocco, Mongolia, Nicaragua, Norway, Pakistan,
Panama, Netherlands, Peru, Poland, Philippines (Protocol I only), Portugal, East Germany, Byelorussian SSR,
Ukrainian SSR, U.S.S.R., United Kingdom, Holy See, Senegal, Sweden, Switzerland, Togo, Tunisia, Vietnam
(Protocol I only), Yugoslavia, and the United States.

2, U.S. Laws, Statutes, etc., “Convention on War on Land,” 36, pt. 2 United States Statutes at Large 2277

1970).

‘ 2 US, Treaties, etc., “Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in
Armed Forces in the Field,” United States Treaties and Other International Agreements, T.I.A.S. 3362
(Washington: U.S. Dept. of State, 1949), v. 6, pt. 3, pp. 3115-3216; USS. Treaties, etc, “Geneva Convention
Sor the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea,” United States
Treaties and Other International Agreements, T.1.A.S, 3363 (Washington: U.S. Dept. of State, 1949), v. 6, pt. 3,
pp. 3217-3315; U.S. Treaties, etc., “Geneva Convention Relative to the Treatment of Prisoners of War,
United States Treaties and Other Intemational Agreements, T.I.A.S. 3364 (Washington: U.S. Dept. of State,
1949), pp. 3316-3315; U.S. Treaties, etc., “Geneva Convention Relative to the Protection of Civilian Persons in Time
of War," United States Treaties and Other International Agreements, T.I.A.S. 3365 (Washington: U.S. Dept.
of State, 1949), pp. 3516-3695.

4, USS. Treaties, etc., “Geneva Protocol Prohibiting the Use in War of Asphyxiating, Poisonous or Other Gases,
and of Bacteriological Methods of Warfare,” United States Treaties and Other International Agreements, T.LA.S.
8061 (Washington: U.S. Dept. of State, 1975), v. 26, pt. 1, pp. 571-582.

5. U.S, Laws, Statutes, etc., “Geneva Convention for the Amelioration of the Wounded and Sick of Armies in
the Field,” United States Statutes at Large (Washington: U.S. Govt. Print. Off,, 1932), v. 47, pt. 2, p. 2074;
USS. Laws, Statutes, etc., “Geneva Convention Relative to the "Treatment of Prisoners of War," United States
Statutes at Large (Washington: U.S. Govt. Print. Off,, 1932), v. 47, pt. 2, p. 2021.

6. ULS, Laws, Statutes, etc., “Hague Declaration Prohibiting the Discharge of Projectiles and Explosives fiom
Balloons,” United States Statutes at Large (Washington: U.S. Govt. Print. Of, 1910), v. 36, pt. 2, p. 2439.

7, Resolution XXIII, Final Act of the International Conference on Human Rights, U.N. Doc. A/CONF.
32/41, p. 18, (1968).

8, U.S, Office of Naval Operations, The Law of Naval Warfare para. 220b. (Washington: 1955).

9. BOISSIER, L'EPEE ET LA BALANCE 55-56, (1953). Prior to Protocol I, only air forces were without
specific regulation. Naval and land forces are limited in their operations on land by Hague Convention (IX)
Concerning Bombardment by Naval Forces in Time of War, United States Statutes at Large (Washington: U.S. Govt.
Print. Off, 1932), p. 36, pt. 2, p. 2351 and Hague Convention IV.

10. Paragraph 62 of MACV Directive 525-13 (May 1971), as reprinted in Congressional Record, 6 June
1975, pp. S9897-9898 provided:



Hall 499

U-boat’s commanding officer into approaching his “abandoned victim” so
closely that the “victim’s” gunners could overwhelm him quickly. This practice
of feigning surrender may have been one of the reasons why the Germans decried
the Q-ship program as barbarous and contrary to the rules of civilized warfare.

Does disguising a ship still have validity as a modern ruse? Certainly Tom
Clancy appears to think so, and he is not alone. The concept of disguising
merchant ships during war continues to receive attention from commentators.”
But, regardless of the technical merits of a particular form of deception,the
commander must know under what circumstances the deception is lawful.
Otherwise, he may face the same shame as the captain of the Sybille, but with far
more serious consequences than having his sword broken by a successful enemy.
Under U.S. law,which is designed to fulfill the letter and spirit of the law of
armed conflict, he must answer to his own countrymen as well. With a minimal
degree of familiarization, however, a commander can both gain victory and avoid
potential criminal liability long after the battle through the thoughtful application
of deception within the parameters of the law.

Lieutenant Commander Hall was serving as a military judge with the Northeast Judicial Circuit,
Navy-Marine Corps Trial Judiciary, in Philadelphia when this article was first published.

Notes

1, CLANCY, RED STORM RISING 150 (1986).

2. Article 0605 of U.S. Navy Regulations, 1973, states that “At all times a commander shall observe, and
require his command to observe the principles of international law. Where necessary to the fulfillment of this
responsibility, a departure from other provisions of Navy Regulations is authorized.” For a discussion of the
naval commander's duties under international law, see Regan, Intemational Law and the Naval Commander, U.S.
Nav. Inst. Proc. 51-56 (August 1981).

3, HUGHES, FLEET TACTICS: THEORY AND PRACTICE 287 (1986). Since strategic deception is
generally conducted on a much wider scale, it can be even more effective than tactical deception. “The term
‘strategic deception’ refers to instances during war or intense intemational competition when countries attempt
to mask their diplomatic and military strategy either by confusing or misleading their opponents. The deceiver’s
overriding objective is to gain a strategic advantage by encouraging an opponent to respond inappropriately to
the real state of affairs.” The Organization Approach to Strategic Deception: Implications for Theory and Policy, in
STRATEGIC MILITARY DECEPTION 70 (Daniel & Herbig eds. 1981).

4, MCDOUGAL & FELICIANO, LAW AND MINIMUM WORLD PUBLIC ORDER. 668 (1961).

5. SUN TZU, THE ART OF WAR 66 (Griffith trans. 1963) quoted in Stuart & Tow, The Theory and
Practice of Chinese Military Deception, in STRATEGIC MILITARY DECEPTION.

6. POTTER, SEA POWER: A NAVAL HISTORY 3 (2nd ed. 1981).

7, Asticle 24 of the Hague Regulations states that “Ruses of war and the employment of measures
necessary for obtaining information about the enemy and the country are considered permissible.”

8. U.S. Navy Dept, NWP 9, The Commander's Handbook on the Law of Naval Operations,
(Washington), para, 12.1.

9. See generally, SPAIGHT, WAR RIGHTS ON LAND at 152-156, 229, 241-242, 404, 433-434, and
453-454 (1911); GREENSPAN, THE MODERN LAW OF LAND WARFARE 319-320 (1959); and
‘WHITEMAN, 10 DIGEST OF INTERNATIONAL LAW 378-400 (1968).

10, NWP 9, para. 12.1.2. The growing emphasis on joint operations means that a naval commander must
be familiar with not only the law of naval warfare, but the law of land warfare and the law of aerial warfare, as
well, An example situation would be a naval officer as commander ofa Joint Task Force such as JTF 120 during
Operations Urgent Fury in Grenada in 1983. It is useful, therefore, to examine how the other armed forces
define perfidy; with few exceptions, the law of naval warfare parallels both the law of land warfare and the law



Joyner 447

reprinted in id., pp. 71-75; Convention on the Prevention and Punishment of Crimes against Internationally
Protected Persons, Including Diplomatic Agents, T.ILA.S. No. 8532 (entered into force 20 February 197),
reprinted in id., pp. 77-85.

17, Intemational Convention Against the Taking of Hostages, U.N. Doc. A/C.6/34/L.23 (4 December
1979), (opened for signature 18 December 1979), reprinted in LL.M. 1456-63 (November 1979).

18, European Convention on the Suppression of Terrorism, Great Britain Cmnd. 7031 (1977), (entered
into force 4 August 1978), reprinted in ALEXANDER, supra n. 14 at 87-109.

19. Namely, those cited in nn, 15-18 supra. For treatments of the difficulties inherent in defining terrorism,
see Frank & Lockwood, Preliminary Thoughts Towards an Intemational Terorism Convention, Ara. J. Intl L. 69-70
(1974) and Dugard, Townnds the Definition of Intemational Terorism, Ama. S, Int'l L. Proc. 94-100 (November 1973).

20, See PAPADAKIS, THE INTERNATIONAL LEGAL REGIME OF ARTIFICIAL ISLANDS (1977). As
treated in this study, an offhore structure is considered to be any facility constructed on or emplaced in ocean
space for purposes of work accommodation or technology mounting and which, in functioning, remains
relatively stationary.

21, SeeLARSON, MAJOR ISSUES OF THE LAW OF THE SEA (1976); HOLLICK, U.S. FOREIGN POLICY
AND THE LAW OF THE SEA, and Law of the Sea XIV, 19 San Diego L. Rev. (no. 3, 1982).

22, Third United Nations Conference on the Law of the Sea, Convention on the Law of the Sea and
Rerolution I-IV, Working Paper 1 (4 June 1982) [Hereinafter cited as 1982 LOS Convention}.

23, Id. Article 55.

24, Id. Article 56.

25, Id, Article 60, para. 1 and 2. Provision is also made for giving due notice and publicity of constructing
such installations and after abandonment ensuring their removal. Id, Article 60, para. 3.

26, Id, Article 60, para, 4.

27. Id, Article 77, para 1, As therein defined, “natural resources’ pertain to mineral and other non-living
resources of the sea-bed and subsoil together with living organisms belonging to sedentary species, that is to
say, organisms which, at the harvestable stage, either are immobile on or under the sea-bed or are unable to
move except in constant physical contact with the sea-bed or the subsoil.” Id. Article 77, para. 4.

28, Id, Article 60.

29, WHEATON, ELEMENTS OF INTERNATIONAL LAW 162 (1936). See also DUBNER, THE LAW OF
INTERNATIONAL SEA POLICY (1980).

30, Done 29 April 1958 [1962] 2 U.S.T. 2312, T.LA.S. No, 5200, 327 U.N.T\S. 3. See the discussion in
the text infia, at nn, 34-36.

31, WHEATON at 163 n. 83.

32, Id.

33, Id.

34, Harvard Research in International Law, Draft Convention on Piracy, with Comment, 26 Am. J. Int'l L.
Sup, 764 (1932).

35. 1958 Geneva Convention on the High Seas, Article 15, para.1(2).

36, 1982 LOS Convention, Article 101. But compare the contentions of Crockett, Toward a Revision of
the Intemational Law of Piracy, 26 DePaul L. Rev. (1976).

37. DUBNER, supra n. 29 at 7. See also Crockett, at 78-80.

38, KESSLER, LEGAL ISSUES IN PROTECTING OFFSHORE STRUCTURES 1-2 (Center for
Naval Analyses 1976).

39, Id. at 2.

40, With respect to the United States, see the discussion in Kessler, supra n. 38 at 2-23; Morris and Kinde,
‘The Law of the Sea: Domestic and Intemational Considerations Arising from the Classification of Floating Nuclear Power
Plants and Their Breakwaters as Artifical Islands, Va. J. Int'l L. 299-319 (Winter 1979); and Note, The Regulation
of Deepwater Ports,, Va. J. Int'l L. 927-957 (Summer 1975).

41. For example, agencies in the U.S. Government having specific legislative mandates affecting offhore
maritime activities include, inter alia, the following: The Bureau of Land Management and the U.S. Geological
Survey in the Department of Interior; the Federal Power Commission; the Interstate Commerce Commission;
the Nuclear Regulatory Commission; the Maritime Administration in the Department of Commerce; the
Office of Pipeline Safety and the Coast Guard in the Department of Transportation; and, the Corps of Engineers
in the Department of the Army, KESSLER, supra n. 38 at 4-17.

42, 1982 LOS Convention, Article 73.

43, 14 US.C. 89.

44, See Wettern, North Sea: Drilling Oil in Troubled Waters, 40-48 U.S. Nav. Inst. Proc, (December 1977);
Ebersole, n, 12.at 54-60; and Watson, The Defense of Offshore Structures23-30 (Center for Naval Analyses, 1976).

45, See Gillan, Old Field Terrorism: Nobody Wants the Bomb, v. 193 World Oil 140-142 (October 1981)
Mate, Maritime Terrorism—An Unacceptable Risk (Part I), 93-98; id. (Patt Ill) at 59-63.


274 Readings on International Law

normally 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 obligation 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 international 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 armed 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


82 Readings on International Law

friendly States simply because it enjoys a de facto exemption. All claims that are
considered illegal should be protested through diplomatic channels regardless of
source, even though the effects of a particular claim may only be felt by other,
nonfriendly, naval powers. Such uniformity would emphasize the legal aspects
of the problem, and it would enable the protesting naval power to avoid the
charge of invoking the law only when it was advantageous to do so. Moreover,
a consistent approach to coastal State claims would discourage what might
otherwise become a problem of comparability—two opposing groups of coastal
States making restrictive claims with the promise or expectation of support from
a superpower.

Self-Defense. There remains the difficult question of actual initiation of force
during an incident at sea. One of the underlying problems in this area is that the
concept of self-defense has never been adequately translated into the language of
seapower. To be sure, it is a well-established rule of international law that a
warship cannot be attacked, seized or otherwise coerced by a foreign State.”*
And whatever else may be said about recent changes in the law of the sea, there
has been no suggestion that the sovereign immunity of warships is less secure
than before. But sovereign immunity has never been absolute. A State has the
right to arrest a foreign warship if the latter is posing an actual and imminent
threat to the arresting State’s security.” Hence, either the general principle or
the exception just stated provides at least a colorable argument for any State
otherwise predisposed to defend its interests with force.

If one accepts as a starting point that it is unlawful to initiate the use of force
at sea, except in the face of imminent attack, there arise two conceptual
problems. First, how should “force” be defined, e.g., would it be an exercise of
force to maintain course and speed against coastal State vessels trying to block
what the latter considered an unlawful passage? And second, how can a coastal
State protect its interests, that force at sea is usually an interference with, not the
exercise of, rights of transit? What good is the right to prevent or suspend
noninnocent passage if there is no concomitant right to take action against
violating warships? What if foreign military vessels simply ignore the warnings
and demands of the coastal State?

International law does not provide satisfactory answers to the questions of
conflict at sea during peacetime except in very general terms. Consequently, the
naval powers cannot expect the strength of their legal arguments to prevent actual
confrontations or to provide overwhelming support for their use of force to
defend legal rights. If force becomes the arbiter of last resort, international law
will provide language for debate and rhetoric but little substance for a definitive
assessment of the naval power’s actions. Regarding the latter, the actual necessity
for force will be critical as will the reputation of the naval power in terms of its
overall policies for minimizing conflicts in the new law of the sea regime.


282 Readings on International Law

and aircraft in their “normal modes of continuous and expeditious transit.”*°

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 ICAO rules for air navigation” 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.®® 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. . . .”°° 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.

Ifunder 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 a fortiori 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.°® 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 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 ofa 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.


Jacobson 171

interest in the many uses of the world ocean and as a traditional adherent to the
tule of law, would benefit from such stability in ocean law.

* The deep seabed mining regime, the focus of current U.S. objections to the
treaty, is a minus on any U.S.-interests scoreboard. All the reasons for rejecting
that regime cited by the Reagan administration are valid. But one might question
whether these reasons are sufficiently serious that they outweigh the clear
advantages for the United States in the rest of the treaty. Those who still urge
the United States to retract its rejection of the treaty point out that, because of
inflation and the present and projected state of global metals markets, commercial
seabed mining is not likely to occur until well into the next century. They also
note that because of UNCLOS III’s eleventh-hour adoption of a Pioneer
Investors Protection Resolution (the PIP Resolution), U.S miners and those of
the other industrialized countries would be likely to enjoy a virtual seabed mining
monopoly under the new treaty for several decades.

Despite these arguments and others that emphasize the treaty’s net benefits for
the United States, it probably must be admitted that the United States is
committed to nonparticipation in the treaty. Certainly the Reagan administration
is adamant in its rejection. True, a future president could sign the 1982 treaty
and submit it to the Senate for its advice and consent to ratification. But the
Senate, which must approve by a two-thirds majority, is considered unlikely to
consent to ratification.

So, where do we go from here? The United States still has the whole array of
national interests and concerns regarding uses of the seas by us and by others.
How do we protect those interests in the current state of confusion?

First, we should remind ourselves that the ocean-use problems that instigated
UNCLOS III still exist and that international rules concerning uses of the sea
also exist and will continue to develop, in one way or another. By rejecting the
UNCLOS III treaty, the United States has simply rejected a previously selected
means for controlling the rule-development.

Second, we should remember that rules of international law come about in
essentially two ways: (1) By State practice—the national claims and responses to
claims and the many other expressions of international practice that reflect
relatively uniform recognition of proper norms for behavior of nation States—
which is referred to as customary law. (2) By international agreement, or treaty,
which creates contractual rules binding only on treaty parties. The international
legal system recognizes no legislature but sometimes, as in the case of UNCLOS
III, something like legislation is attempted through the device of a treaty or set
of treaties. In these instances, broad consensus by those to be governed by the
tules is obviously necessary for their effectiveness.

Because of its objections to the 1982 UNCLOS III treaty, the United States
has determined to upset the broad consensus that had been developing in that
Conference, to thus cause the new treaty to fail and, presumable, to adopt a new


Takahashi 241

return of the Kuriles. The Soviet Union, for its part, did not commit itself to a
cash deal that its population for the most part opposed and which, in future years
with a different Soviet leadership, could have resulted in increased resentment.>!
The search for an end to the Kuriles dispute can at least continue now in a region
marked by stability and where the political doors now opening offer the promise
of a lasting peace.

Lieutenant Commander Takahashi was serving as the Executive Officer of the U.S. Coast Guard
Cutter Mackinaw when this article was first published.

Notes

1, Weisman, Japan-Soviet Pact on Islands Elusive, The New York Times, (19 April 1991), p. Al.

2. REES, THE SOVIET SEIZING OF THE KURILES at ix (1985).

3, Menon and Abele, Security Dimensions of Soviet Territorial Disputes with China asd Japan, Journal of
Northeast Asian Studies 12 (Spring 1989).

4, Thompson, The Northem Territories: Case Study in Japanese-Soviet Relations, 26 (Unpublished Master's
‘Thesis, Naval Postgraduate School, Monterey, Calif: 1982).

5, STEPHAN, SAKHALIM: A HISTORY 5 (1971).

6. Supran, 2 at 5.

7. Id, at 23.

8, Home, The Northem Territories: Source or Symptom? Journal of Northeast Asian Studies 65 (Winter
1989).

9. Id, at 68.

10, Supra n. 2 at 82.

11, Stokes, Making Eyes at Moscow, National Journal 112 (20 January 1990).

12, STEPHAN, THE KURIL ISLANDS: RUSSO-JAPANESE FRONTIER IN THE PACIFIC 170 (1974).

13, ROBERTSON, SOVIET POLICY TOWARDS JAPAN: AN ANALYSIS OF TRENDS IN THE 1970'S
AND 1980'S at 185, (1988).

14, Id, at 153, 187.

15, Ignatenko, Looking Back from the Year 2001: Perestroika and Prospects of Soviet-Japanese Relations, New
York Times, (8-14 May 1990), 7-8.

16, Supra n. 4 at 27-28,

17. Supra n, 2 at 145,

18. U.S. Department of Defense, Soviet Military Power 1989 114 (1989).

19. U.S, Department of Defense, Soviet Military Power 1990 98 (1990).

20, Supra n. 4 at 29.

21, Japanese Defense Agency, White Paper: Defense of Japan, 1989; reprint, The Japan Times, Ltd.

22, A Visit Dashed against the Rocks, 31 The Economist (20 April 1991).

23, Delf and Rowley, Far Eastern Economic Review 12 (2 May 1991).

24, Kimura, The Soviet-Japanese Territorial Dispute, 7 The Harriman Institute Forum (June 1989).

25. Id. at 8.

26, Dahlburg and Helm, Soviets, Japan Both Fail to Get What They Want, Los Angeles Times, (19 April
1991) A12,

27. Supra n, 24 at 7.

28, Japan , Gorbachev and The Price of Peace, The Economist 33 (30 March 1991).

29. Warmer, Chinese Card Today - the Japan Card Tomorrow? Pacific Defense Reporter 48 (May 1989).

30, The phrase “‘a centerpiece of our security policy and an important anchor of stability” comes from the
White House, 1990 National Security Strategy of the United States.

31. A similar statement was made by Kazuo Chiba, former ambassador to the United Kingdom, in a7
December 1990 interview in London. He stated: “We don't want to get back those islands and then create a
lasting dispute that is exploited by successive leaderships. We only want a deal if both sides realize that it is a
good deal. If the Soviet Union disintegrates into chaos then the Slavs might think we have taken their land
and we do not want that kind of festering dispute. We want whoever is the ruler of Russia to give back the
islands in a lasting way.” (See Japan and the New World Order, 4, no. 1, The Pacific Review 1-4 (1991).


248 Readings on International Law

position on innocent passage in their territorial sea had been to require prior
notification and authorization for warship transit. For example, the Soviet Union
entered a reservation to the 1958 Convention on the Territorial Sea and the
Contiguous Zone that declared that the coastal State “has the right to establish
a procedure of authorization for the passage of foreign warships through its
territorial waters.”!° Subsequently the Soviets established authorization proce-
dures in their 1960 State border regulations.

Although the Soviets appeared to relax their position on innocent passage
during the UNCLOS III negotiations, they eventually promulgated internal
legislation that significantly restricted the right of innocent passage. On 28 April
1983 the Soviet Council of Ministers enacted the “Rules of Navigation and
Sojourn of Foreign Warships in the Territorial Waters and Internal Waters and
Ports of the U.S.S.R.”*° The Rules limited the transit of foreign warships
through the territorial waters of the Soviet Union. Specifically, the Soviet
regulations stated that innocent passage through Soviet territorial waters was to
be permitted only along routes ordinarily used for international navigation. The
Rules set out “traffic separation schemes” through which warships could travel
in the Baltic Sea, the Sea of Okhotsk, and the Sea of Japan.” There were no
routes available for innocent passage in the Black Sea.

Freedom of Navigation operations in the Black Sea resulted in numerous
confrontations between U.S. and Soviet forces. In fact, the Soviet response to
the U.S. presence in the Black Sea gradually developed from one of diplomatic
protest to armed response.

* On 9 December 1968, the destroyers USS Dyess and Turner of the Sixth
Fleet sailed into the Black Sea, where they cruised for three days off the coasts
of Turkey and the Soviet Union, closely shadowed by Soviet vessels. The Soviets
charged that the maneuvers were a “provocative sortie”; Pravda asked, “Why do
the Americans need to take such a stroll in the Black Sea?”

* In August 1979, as the destroyers USS Caron and Farragut were conducting
“show the flag” maneuvers in the Black Sea, Soviet warplanes staged more than
thirty mock missile attacks against them. According to Pentagon officials, the
Soviets sent out a variety of bombers, including the modem, supersonic TU-22M.
Backfire, to join reconnaissance planes in tracking the U.S. destroyers after they
sailed into the Black Sea on 1 August.”

* On 18 February 1984, the destroyer USS David R. Ray was conducting
FON exercises in the Black Sea near Novorossiysk when Soviet aircraft fired
cannon rounds into the ship’s wake and a Soviet helicopter taking photographs
of the destroyer swooped within thirty feet of its deck.* U.S. officials considered
the Soviet action a violation of the spirit of the Incidents at Sea Agreement.

Given the escalation taking place in the Black Sea, it was evident that the
United States and the Soviet Union were rapidly approaching a confrontation.


156 Readings on International Law

Conclusions

The issue of marine technology transfer in the Law of the Sea context is an
issue with a relatively low profile. The general public is unaware of the problem,
and “public opinion” on the issue, such as it exists today, is manufactured by a
small handful of lobbyists for business interests, competing segments of the U.S.
government, journalists, academics, and publicists. Yet it is important to remem-
ber that the Law of the Sea Treaty in general and, marine technology transfer in
particular, represent the cutting edge of what will be the great conflict of the 21st
century—the competition for the allocation of dwindling resources among a
growing world population. This is a competition that may not be a centerpiece
in East-West ideological debate, but will rather be concerned with issues of
survival, wealth, and poverty, as they apply to mankind as a whole. Access to
strategic minerals at the bottom of the ocean is one early manifestation of this
conflict, and it will come to include the exploitation of protein, hydrocarbons,
energy (thermal, current, tidal, and salinity gradient), fresh water, and other
resources from the sea. It will be paralleled by conflict over the two other “global
commons,” Antarctica and space. In the final analysis, the issue of mandatory
transfer of marine technology is at the forefront of the much larger issue of
deciding what truly is the common heritage of all mankind. The question
becomes one of drawing complex lines across emotional issues that impact on
national survival, a delicate process indeed. All mankind does have a stake in the
exploitation of the open ocean and the deep seabed but it must be undertaken
carefully and with due concern for all parties, including the corporations of the
‘West (and their millions of stockholders) as well as the rights of the developing
countries. The objective of a lasting global accord on the management of the
world’s oceans is a good one; but in order to achieve a legitimate universal
consensus, further discussion and negotiation will be required. The current Law
of the Sea Treaty is a beginning, but additional modification on technology
transfer, and other issues, will be required before the United States and other
Western countries will enter into the agreement. This analysis has been offered
as a contribution toward that process of negotiation, and it is hoped that the
suggestions contained in this brief paper will offer a point of departure in the
search for compromise.

Lieutenant Commander Stavridis was attending The Fletcher School of Law and Diplomacy
of Tufts University when this article was first published.

Notes

1. 117 Nations Sign Sea Treaty, U.S. Refuses, The Boston Globe, 11 December 1982, p. 4. The Treaty
will come into effect one year from the date of deposit of an instrument of ratification by the 60th country,


Friedlander 383

Is violence itself, whether political or not, a necessary catharsis to balance the scales
between colonizer and colonized, between black and white, or is violence just as
necessary in certain situations in which racial or colonial inequality will continue
unless the worm has courage to turn.®

It is true that there are fewer States willing to provide haven today than at any
other time within the last two decades. And those governments that have been
the most prominent providers of refuge for perpetrators of terrorist acts have
sometimes been forced to deny the authenticity of their actions.°” The Per-
manent Representative to the United Nations of the Libyan Arab Republic even
addressed a letter to the Secretary General on 21 August 1976 wherein he averred
that the Libyan Government “does not approve of highjacking,” and that the
law of the Libyan Republic “stipulates that the perpetrators of such crimes shall
be subject to the most extreme penalties.”** The historical record, unhappily,
speaks for itself.

Although the Sixth (Legal) Committee of the U.N. General Assembly has
been debating the issue of State responsibility throughout this decade, and
although there is sufficient legal precedent and international legislation already
in existence to permit some sort of sanctions system,>? a will to enforce has been
conspicuously lacking. Little attention and no consideration were given to the
proposal of former U.N. Secretary General U Thant for an international
hijacking tribunal.” Despite the lessons of the past and the portents of the future,
the world community appears to prefer Doublethink and Newspeak to
safeguarding the innocent and maintaining a global rule of law. When the
Republic of Panama offered haven to the Sandinista guerrillas, “[t]errorism, for
the moment had won”; no matter how sincere the purpose or how noble the
motivation of the terrorist actors.°!

The last quarter of the 20th century is not only an age of great technological
achievement, it is also a time of terror.© Eric Hoffer, the moral conscience of a
brutal age, recently observed that “history is made not by the hidden hand of
circumstances but by men.”® To deny the lessons of human experience in the
era of doomsday technology is to yield before adversity, succumbing to the
frustrations of the passing moment. But the primordial issue is the survival of the
innocent. Malfeasance and nonfeasance equally ignore Dante’s warning from the
depths of hell about the fatal consequences that must occur when “those, who
sowing discord, harvest guilt.”

Robert Friedlander was an Associate Professor of Law at the Ohio Northern University College
of Law at the time this article was first published.

Notes

1, CORDIER & HARRELSON, PUBLIC PAPERS OF THE SECRETARIES-GENERAL OF THE UNITED
NATIONS: VOL, VII, U THANT, 1968-1971 at 471 (1977).


McNeill 227

overlaps of EEZ areas."? Adoption of such an equitable and pragmatic approach
led to results that have been welcomed by observers such as the chairman of the
American Section of the International North Pacific Fisheries Commission, Mr.
Clement Tillion, who observed, “neither side can say they beat anybody out of
anything. It’s a very nice agreement.”4

The new agreement defines the limits within which each signatory may
exercise territorial sea or EEZ jurisdiction in those areas where its claimed twelve
nautical mile territorial seas or two hundred nautical mile EEZ would otherwise
overlap the other’s or remain in dispute. It also delimits, as between the parties,
the continental shelf jurisdiction beyond two hundred nautical miles from their
respective coasts that they may exercise in accordance with international law, in
the Arctic Ocean, Bering, and Chukchi Seas, and a portion of the North Pacific
Ocean.

As President Bush stated in his letter transmitting the new agreement to the
Senate for its advice and consent to ratification: “I believe the agreement to be
fully in the United States interest. It reflects the view of the United States that
the maritime boundary should follow the 1867 Convention line.”46

Indeed, this is made clear in Article 1 of the agreement. Article 1 also contains
the explicit statement that each party is to respect the boundary as limiting its
coastal state jurisdiction. This means of course that neither side will attempt to
manage offshore resources in areas on the opposite side of the boundary.

Article 2 of the agreement contains the legal description of the boundary. It
is essentially the same as the line of allocation set forth in the 1867 Convention.
Thus, the boundary proceeds from the point in the Bering Strait midway between
Big (U.S.S.R.) and Little (U.S.) Diomede Islands due north as far as permitted
under international law—for example, the U.S. EEZ terminates in the Arctic
Ocean at about seventy-four degrees north latitude, close to the southern edge
of permanent pack ice. (U.S. continental shelf jurisdiction may extend further
north: see map.) South of the Bering Strait, the boundary extends generally
southwestward to 167 degrees east longitude, terminating southwest of the
Aleutian Island chain at a point lying slightly over two hundred nautical miles
from both Soviet and U.S. territory.

Article 3 is a novel provision, and the first example known of the technique
employed: the transfer by each party to the other of the right to exercise
EEZ-derived sovereign rights and jurisdiction (which only the transferor would
otherwise have been entitled to exercise) in “Special Areas” established by the
agreement. Why was this done?—to avoid enlarging the high seas area of the
“Doughnut Hole.” This would have been the outcome had the parties failed to
take into account those cases in which either of them had (or could have) asserted.
EEZ-derived rights across the 1867 line in locations where there were no overlaps
with the EEZ of the other party. The result would have been the cutting off or


588 Index

territorial sea, 438
restrictive claims, 80-82
Coercion, permissible and impermissible, 370, 459, 461, 463
Colonialism and terrorism, 383, 391, 392
Combatants
claims of combatant status by domestic terrorists, 475
guarantees for captured combatants of prisoner-of-war status, 476
obligations of, 467-468
terrorists as, 462-463
‘Combs, Richard (U.S. charge d’ affaires), 249
Conflict avoidance, 80-82
‘Congo (Stanleyville) action by Belgians, 560
Congressional powers over U.S. military, 412-413
‘Congressional representatives
Public Law 91-644 (1971) sanctions regarding assassination, kidnapping, or assault of, 418- 419
Conservation of resources, 370, 438-439
Contamine, Phillipe, 544
Contiguous zone, 208-209, 263, 270, 271, 272, 284
Continental shelf
claims, 160-161, 224
definition, 288-289
emplacement/employment of weapons, 299-300
LOS Convention, Article 60, 289
outer boundary, 64-66, 271, 273, 439-440, 442
seabed. See Seabed.
sovereign rights, 271, 289
Soviet-U.S. jurisdiction, 220-228, 222-223, 227
‘Truman Proclamation. See Truman Proclamation.
waters superjacent to, 289-290
Contras, Nicaraguan, 371
Convention of Cession (1867), 219-221
Cordon Sanitaire
arguments against, 135, 137-139, 140-143
arguments for, 135, 137-138, 140-141, 143
decision to implement, 132
description of, 131-133
determining size, 133-135
enforcement of, 138-140
escalation ladder, 139-140
potential benefits of, 136-137
Sea of Okhotsk, 232
surveillance requirements, 142-143
‘wargame experience with, 132
world opinion of, 143-144
Covenant on the Prevention and Punishment of the Crime of Genocide, 9
Craig, Gordon A., 324
Creeping jurisdiction, 95, 100-101, 105, 107-114, 163, 181, 208-209, 210, 244-246, 269, 293-294
Crimes
against internationally protected persons, 379-380, 390, 403, 418
kidnapping, 377, 390
international, 378
political, 379
exculpatory features of customary international law, 379, 390, 404
stare decisis, 379
Crowe, Admiral William J., 253-254, 255, 577
Cuba
charges of CIA use of biological weapons, 508


486 Readings on International Law

were the facility to be destroyed, technology worth millions of corporate dollars
would be lost; and, perhaps even more important, it is likely there would be
considerable environmental degradation and ecological damage if an oil spill or
well blowout occurred.

¢ Still another plan would involve “hijacking” the offshore facility. That is,
terrorists could attack a rig either by surface ship, submersible vessel, or from the
air (viz., by helicopter), capture the crew, and hold them and the structure hostage
for ransom or political extortion. This situation would present the traditional
negotiating confrontation between hostage-takers and the respective authorities.

* Last, though certainly not least in terms of probability, some terrorist
organization might decide to destroy a drilling platform without warning and
claim “credit” for the act ex post facto. In this manner, the profound fear of
indiscriminate injury stemming from terrorism, as well as the focus of media
publicity upon the perpetrators could be achieved with graphic results, and very
likely with only a minimal chance of apprehension.

Assessment. In sum, terrorist activities are expressly designed to produce
psychological and symbolic effects rather than to attain physical or material gains,
Attacks aimed at innocent yictims—for example, a rig crew or living resources
in the ocean—could be especially effective in that these victims would become
highly salient pawns in a tense bargaining situation. As a consequence, such
perceptions could engender sympathy from the public and, coincidentally,
increase pressure upon governmental authorities to succumb to the terrorists’
demands. Herein is couched a catch-22 paradox associated with terrorism
generally: On the one hand, if a government reacts too vehemently or capri-
ciously against terrorist activities (e.g., by suspending civil rights and liberties),
then it may appear to the citizenry as being overly repressive and authoritarian.
On the other hand, should a government's policy toward terrorism be perceived
as weak, indecisive, or nonassertive, then very likely that response might foster
further attacks over the short term.

The Status of Offshore Maritime Terrorism in
Contemporary International Law

There is little doubt amongst Western expert commentators that terrorists in
general should be regarded as international criminals. More to the legal point,
terrorism essentially is viewed as a stateless crime, ostensibly directed against all
States. Even so, securing a universal consensus on the legal niceties of terrorism
has not been so neatly achieved. As one commentator has observed: “The United
Nations, in view of the ideological and political divisions among its 150 member
States [has] not reach[ed] any agreement on a definition of terrorism. Neverthe-
less, as a result of the extreme vulnerabilities of our complex society and the


310 Readings on International Law

139, LOS Convention, supra n. 2, article 56, para. 3.

140. LOS Convention, supra n. 2, article 76.

141, Id,, article 77.

142, Id,, article 80.

143, Id., article 78,

144, Id,, article 60(6).

145. Id,, article 80 (incorporating article 60 mutatis mutandis).

146. Convention on the Continental Shelf, 29 April 1958, U.N. Treaty Series, v. 499, 311, article 2,

147. LOS Convention, supra n, 2, article 77.

148, See Tullio Treves, Military Installations, Structures, and Devices on the Seabed, 74 Am. J. Int'l L. 808, at
834 (cited hereinafter as Treves).

149, See id, at 839

150. 1d, at 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 surveillance devices are not “installations or structures.” Some weight is added to this argument
by the replacement of the nomenclature “installations and devices” in the 1958 Continental Shelf Convention,
supra n. 146, article 5, by “installations and structures” in the 1982 Convention. See Treves, supra n. 148,
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 all States to lay and maintain
submarine cables. Id, at 842-843.

152. Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water, (5
August 1963). 480 U.N. Treaty Series 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 1971, U.N. Treaty
Series, v. 955, p. 115.

154. Treaty for the Prohibition of Nuclear Weapons in Latin America, with Additional Protocols I and
I, (14 February 1967) 634 U.N. Treaty Series 281.

155. U.S. Department of Defense, Office of the Assistant Secretary of Defense (International Security
Affsirs), MARITIME CLAIMS REFERENCE MANUAL (Washington: U.S. Dept. of Defense, 1989), v. 2, at 232
(forsale 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 130), Fiji (300 x 300), Papua-New Guinea (840 x 600), Solomons (500
x 120), Vanuatu (420 x 100). 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 n. 69, at 33.

157. NWP 9, supran. 61, para. 7.3.6. The Annotated version of NWP-9 footnotes this statement to Hague
XIII, articles 1, 2 and 5, and NWIP 10-2, para. 441, both of which address neutral waters in the context of
the territorial sea and internal waters only.

158. Canadian Manual, supra n. 71, para. 1509.

159. Id., 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 William Fentick of the Canadian
Ministry of Defense on 4 February 1992.

161. German Manual, supra n. 72, para. 1010 (emphasis supplied).

162. See, for example, id., paras. 1121-1123, 1130-1133. 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.”

163, See text at nn. 73-79 supra,

164. See supra, nn. 75 and 76 and accompanying text.

165. Hague XIII, supra n. 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 will be unable to ensure that strong
belligerents will not use their archipelagic waters as a base of operations. HMC 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



550 Readings on International Law

“Rough Practical Judgment”

As can be seen from the foregoing discussion, neither law nor practice provides
any clear-cut guidelines for determining when a valid offer to surrender takes
place. In evaluating an apparent attempt to surrender, an on-scene commander
faces a severe test of his judgment in which the safety of his command may be
pitted against his obligation to respect and uphold the humanitarian law of armed
conflict.

The foundation stone for this law is the principle that “the right to adopt
means of injuring the enemy is not unlimited.’ One of the limitations imposed
by this law is the requirement to terminate hostilities against an enemy unit, or
in some circumstances an individual, that is hors de combat or has manifested an
unconditional intention to surrender. As we have seen, however, the clarity of
the enemy’s intention is often obscured by the ambiguity of the signal, by the
difficulty of perception or interpretation in the fog of combat, and by the lack
of any generally recognized sign or symbolic act for manifesting surrender. Even
in situations in which the intent may be clear, it may be impossible for the
commander of the force to whom surrender is offered to accept it without
increasing the danger to his command—as for example, where surrendering units
or individuals are intermingled with others that continue to fight. In the heat of
battle it comes down to “a matter of rough practical judgment” as to when hostile
fire must cease. When, however, a tactical unit commander has time for
deliberation, as was the case for the commanding officer of the Nicholas, he should
use all the resources available to him to determine whether the offer of surrender
he has received is genuine and one he is obligated to accept.

Factors that should be taken into account in making that judgment should
include not only the tactical situation, the danger to his own command, and the
applicable rules of engagement, but also such other factors as the cultural mores
of the enemy force with respect to surrender, the prior history of the enemy
forces in similar situations, the enemy’s history of compliance with the law of
armed conflict, the enemy’s reputation for ruses or perfidy, and any other such
traits as may bear on the genuineness of the offer. These latter factors may be
beyond the knowledge of the commander himself or the members of his
command. Thus, where time and the tactical situation permit, he should report
ambiguous or otherwise unclear offers of surrender to higher authority, who may
be able to provide additional relevant insights on likely enemy behavior as well
as data from the larger tactical arena that may bear on the local decision.
Commanders at higher echelons will presumably be more experienced and are
more likely to have access to additional intelligence and expert advice on the law
of armed conflict. In the end, however, unless the on-scene commander receives
a specific directive from higher authority, he alone has the final responsibility for


Walker 61

5, WESTCOTT, MAHAN ON NAVAL WARFARE 285-90 (1941). Mahan’s opponent was Elihu Root,
prominent New York lawyer, Secretary of State, and a founder of the American Society of International Law.

6. O'CONNELL, THE INFLUENCE OF LAW ON SEA POWER 189 (1975).

7. Td

8, 175 U.S. 677 (1900). (International custom)

9, 11 USS, (5 Cranch) 116 (1812). (Sovereign immunity)

10, BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW (2nd ed. 1973) and THE LAW OF
‘TREATIES (1961),

11. Roy, Js the Law of Responsibility of States for Inquiries to Aliens a Part of Universal Intemational Lau? Am.
J. Int'l L, 863, 881-83 (1961).

12, Sce the dissenting opinion of Judge Alvarez in the Asylum Case (Colombia v. Peru), [1951] 1.CJ. Report,
pp. 266, 290, The “Calvo Clause,” frequently found in intemational concession agreements with Latin American
nations, states that a foreigner doing business there is entitled only to nondiscriminatory treatment; he consents to
be treated only as the host state’s nationals are treated. The foreign investor agrees not to seek the diplomatic
protection of his own nation and submits questions arising from the agreement to local jurisdiction.

13, TUNKIN, THEORY OF INTERNATIONAL LAW (Butler trans, 1974). For a historical perspective on
Russian attitudes toward international law, see BUTLER, THE SOVIET UNION AND THE LAW OF THE SEA
3-16 (1971),

14, tes ‘The Soviet Navy and Ocean Law, Naval War College Review 52 (March-April 1974).

15. Ken Booth recognizes this role of navies, albeit in a foreign policy/naval affairs, nonlaw context.

16. See Janis, Dispute Settlement in the Law of the Sea Convention: The Military Activities Exception, 4, no. 1,
Ocean Devel, & Int'l L. 51.

17. Three collections of treaties and national legislation and regulations in this vast and rapidly expanding
field are: Bureau of National Affairs, International Environment Guide (1975). BARROS & JOHNSTON, THE
INTERNATIONAL LAW OF POLLUTION (1974), and BENEDICT, THE AMERICAN ADMIRALTY: ITS
JURISDICTION AND PRACTICE (7th ed. 1973), the last containing treaties and legislation related to all
maritime matters.

18, Supran. 4.

19. The major schools of jurisprudence see law as: a positive command (“Positivism”) from the sovereign,
a prevailing concept in Anglo-American legal philosophy developed in the 19th century by John Austin, a
former British Army officer; natural law, which viewed law as pointing to an ideal for the future, and which
still finds currency among scholars, although it was in popular vogue in the 18th century and influenced
internationalists such as Hugo Grotius or thinkers such as Thomas Jefferson, principal author of the United
States’ Declaration of Independence; legal realism or sociological jurisprudence, developed in this century to
attempt to explain law in the context of the social sciences, a familiar exponent being Justice Oliver Wendell
Holmes; the historical school, seeing law in the context of the historical development ofa people, a philosophy
primarily advanced by German thinkers; the Communist approach. This brief sketch isa vast overgeneralization,
‘but is included to note the variety of theories involving law, even as there are many, and often conflicting,
theories about military strategy and policy or military operations.

20. BOOTH, NAVIES AND FOREIGN POLICY 136 (1977).

21. Suziki, The New Haven School of Intemational Law: An Invitation to a Policy-Oriented Jurisprudence, 1 Yale
Studies in World Public Order 3, note 1 and p. 5, note 2 (1974); Moore, Prolegomenon to the Jurisprudence of
Myres McDougal and Harold Lasswell, 54 Va. L. Rev. (1968), 186, p. 664, note 3 and p. 665, note 4.

22, Moore, supra n, 21 at 669.

23, McDougal, Authority to Use Force on the High Seas, 20 Naval War College Review (December 1967).

24, See Bathurst, Crisis Mentality: A Problem in Cultural Relativity, Naval War College Review 55
anuary-February 1974) and Piersall, An Analysis of Crisis Decision-Making (Center for Naval Analyses
Professional Paper No. 41, 1970).

25. See WRIGHT, HANDBOOK OF THE LAW OF FEDERAL COURTS 281 (3rd ed. 1976).

26, U.S, Constitution, art. VI, section. For the classic example of how a treaty may validly regulate activity
that an act of Congress may not, see Missouri v, Holland, 252 USS. 416 (1920).

27. Compare Booth’s recognition of the “interconnectedness” of land, sea and air forces. Booth, supra n.
20 at 188-189,

28, Moore, supra n. 21 at 671.

29, Id. at 672.

30, BOOTH, supra n. 20 at 224.

31, Knight, The Law of the Sea and Naval Missions, U.S. Nav. Inst. Proc. 32 (June 1977). The article is a
good survey of current law of the sea problems, arranged by legal issue, and urges that the United States “take
all measures necessary to ensure that future legal developments concerning the use of ocean shore do not
unacceptably retard {its] ability to carry out traditional and prospective missions of [its] naval forces,” including
setting precedents for rights of navigation before a crisis arises.



MeNeill 223

nautical miles from the coasts of either of them. The continental shelf in the
Bering sea is the largest such area on Earth, and in addition to being unusually
rich in crab and shellfish is also believed to be a potentially important area for
hydrocarbon exploitation.

One region of the Bering Sea continental shelf is of particular note and can
serve to illustrate the complications for hydrocarbon exploration that have been
generated by the boundary dispute: the Navarin Basin of the Bering Sea, a
continental shelf zone roughly the size of Ohio. Lying some 250-300 miles off
the Alaskan coast, it contains an EEZ overlap area roughly twenty-five miles
wide and 225 miles long. This previously disputed zone lies on the western side
of a 43,000 square-mile tract believed to contain significant oil and gas deposits.
Water depths in the area range from 230 to 7,900 feet, although most of the shelf
lies under less than six hundred feet of water.!®

In March 1984, interest in the hydrocarbon potential of the basin was
heightened by the discovery of a plume of natural gas spewing from the ocean
floor almost in the middle of the then-disputed western portion of the tract.”
Soviet interest in oil in the region remained considerable, as had been
demonstrated in an unusual manner during the summer of 1983 when a Soviet
TU-95 “Bear” aircraft buzzed a test well some seventy-five miles east of the
U.S.-claimed line and comfortably within the U.S. EEZ.'®

In 1984, the U.S. Department of the Interior requested bids for potentially
lucrative oil leases in the Navarin Basin tract. The U.S. Geological Survey had
identified three geologic structures in the sale area that might contain oil.
Estimates of reserves in the twenty-eight million acre tract had indicated that the
Navarin held 1.9 billion barrels of oil under waters less than two hundred meters
in depth, and also 7.5 trillion cubic feet of natural gas in similar water depths!°—
substantial by “lower forty-eight” standards but still only a fraction of the Prudhoe
Bay reserves on Alaska’s North Slope. Because of the boundary dispute, the
Interior Department placed in escrow the bids received for blocks of the tract
lying in the disputed area, and no exploration was permitted to take place in that
part of the Navarin. Finally, in December 1988, Interior returned some $30
million in escrowed funds to Shell, ARCO, and AMOCO, at their request,
because leases for the seventeen blocks in the disputed area for which bids were
received had not been issued, due in part to continued uncertainty about the
boundary.”

Now that a boundary settlement has been achieved, prospects have improved
for U.S. and Soviet joint ventures in oil exploration and, later, exploitation in
the Bering and Chukchi Seas. The Navarin Basin is again expected to become
the focus of interest, although no commercial discoveries have as yet been
made,

Ofshore drilling in the outer continental shelf off Alaska is not affected by the
Bush Administration’s decision in June 1990 to postpone offshore drilling in


204 Readings on International Law

Problems with the North Korean Claims

Several ambiguities in the language of the announcement, when coupled with
earlier imprecise language and erratic enforcement practices, have further ruffled
these troubled waters.

Improperly Drawn Baselines and Unrecognized Historic Bay Claims. One
problem which pervades the North Korean claims is the vagueness of their
pronouncements. Their baselines, from which all other claims are derived, i.e.,
territorial sea, contiguous and exclusive economic zones, have not been promul-
gated. The presumed baselines have been gleaned from the unofficial contacts
referenced between North Korean officials and Japanese envoys. A recent Notice
to Mariners captured this uncertainty in describing the North Korean east coast
straight baselines in the following fashion: “Baseline is hypothetically calculated
by State Department Geographer as straight line across Sea of Japan which joins
seaward terminus of Korean Military Demarcation Line and PDRK boundary
with the Soviet Union.””! (Gee figure 2.)

Under the applicable provisions of the 1982 LOS Convention, which reflects
customary international practices, baselines, as outlined above, are normally
drawn by following the low-water marks along the coast.” An exception to this
general rule allows straight baselines only where the coast is deeply indented,
which would result in a correspondingly untenable, serrated line at sea,”* or
where there is a fringe of islands along the coast in its immediate vicinity.* A
glance at a chart will confirm that the North Korean coastal geography admits
to neither limited exception to the general rule of coastally conforming baselines.

Also, the North Korean baselines conveniently encompass several supposed,
although unarticulated, “historic bays,” which have not been recognized by the
international community at large. Similar claims have been advanced by the
Soviets (Peter the Great Bay), and the infamous “line of death” which Libya
announced was an unsuccessful attempt to enclose the Gulf of Sidra.

However, the North Korean bays do not meet the generally accepted norms
codified in the 1982 LOS Convention, which provide that a bay is a “well-
marked indentation in such proportion to the width of its mouth as to contain
land-locked waters and constitutes more than a mere curvature of the coast.”*® The
Convention then sets forth technical tests for gauging the validity of a bay claim.

At this point, the “operator” reader may be thinking: “So what? Let the
lawyers and cartographers immerse themselves in the excruciating minutiae of
this line drawing evolution. Of what practical importance is this dispute?” Two
important consequences flow from this baseline demarcation.

First, waters on the landward side of the baseline of the territorial sea form
part of the internal waters of the State.?” Internal waters are, as a practical matter,
as subject to the sovereignty of the coastal nation as its drier real estate and,


500 Readings on International Law

of aerial warfare on this issue, but the definitions vary slightly. The Air Force states that “like ruses, perfidy
involves simulations, but it aims at falsely creating a situation in which the adversary, under international law,
feels obliged [emphasis provided in original source] to take action or abstain from taking action, or because of
protection under international law neglects to take precautions which are otherwise necessary.” AFP 110-31,
para. 8-3. The Army state that “in general, a belligerent may resort to those measures from mystifying or
misleading the enemy against which the enemy ought to take measures to protect himself,” and that “it would
be an improper practice to secure an advantage over the enemy by deliberate lying or misleading conduct
which involves a breach of faith, or when there is a moral obligation to speak the truth.” FM 20-10, paras.
49-50.

11. HALLECK, INTERNATIONAL LAW; OR, RULES REGULATING THE INTERCOURSE OF STATES
IN PEACE AND WAR 402 (1861).

12, SPAIGHT, AIR POWER AND WAR RIGHTS 169 (3rd ed. 1947).

13, HALL, A TREATISE ON INTERNATIONAL LAW 533 (6th ed. 1909).

14. NWP 9, para. 12.2. Article 23 (f) of the Hague Regulations expressly prohibits improper use of the
“distinctive badges of the Geneva Convention.”

15, NWP 9, para. 12.2.

16. Ibid,, para. 12.6.

17. AFP 110-31, para. 8-6. NWP 9, para. 11.10.4 states that customary international law recognizes the
white flag.as “symbolizing a request to cease fire, negotiate, or surrender.” Article: 230) ofthe Hague Regulations
states that “it is especially forbidden to make improper use of a flag of truce. .

18. NWP 9, para. 12.1.1.

19. FM 27-10, para. 51.

20, NWP 9, para. 12.2.

21. NWP 9, para, 12.3.2.

22. One of the first commentaries on the use of false colors appeared in France in 1696. U.S. NAVAL
‘WAR COLLEGE, INTERNATIONAL LAW TOPICS AND DISCUSSIONS 1906 at 9 (1907). One of the earliest
recorded incidents of ship disguise was in 1672 when British Captain Knevet, in command of Argier, disguised
his ship “by housing his guns, showing no colors, striking even his flagstaff, and working his ship with much
apparent awkwardness,” and thus deceived a Dutch privateer. The practice was apparently very widespread
during the Napoleonic era. CAMPBELL, MY MYSTERY SHIPS 8-9 (1929).

23. NWP 9, para, 12.3.1.

24, COLOMBOS, THE INTERNATIONAL LAW OF THE SEA 454 (1962).

25. The Baralong incident prompted great controversy in 1915, not only because of the reputed improper
use of neutral colors in action, but also because of allegations that Baralong’s captain ordered the massacre of
the survivors of the U-boat. See COLES, SLAUGHTER AT SEA (1986).

26. U.S. NAVAL WAR COLLEGE, n. 22 at 7-8.

27. NWP 9, para. 12.3.

28, Id, at para. 12.2.

29. See generally, VAN DER VAT, GENTLEMEN OF WAR: THE AMAZING STORY OF CAPTAIN KARL
‘VON MULLER AND THE SMS EMDEN 86 (1983), wherein it is reported that Emden was flying British colors
prior to action; COLOMBOS, at 455, wherein itis reported that Emden was flying Japanese colors; and REVIEW
OF REVIEWS, TWO THOUSAND QUESTIONS AND ANSWERS ABOUT THE WAR 133 (1918), wherein
itis reported that Emden was flying no colors whatsoever.

30. Despite the countless historical precedents for disguising a ship in combat, one commentator has
credited a trip to the London Zoo at the source of inspiration for the Q-ship program. Artist Sir John Lavery
was working on shades of camouflage when, ona trip to the 200, he noticed that from a distance in the evening
light, he could not distinguish between a donkey and a zebra. He then concentrated on altering the shape of
a warship so that it would appear to be an unarmed merchant ship, COLES, supra n. 25 at 41-42.

31. CAMPBELL, supra n, 22 at 46-51.

32. SIMS, THE VICTORY AT SEA 195 (1930). The Q-ship program was repeated in World War If, but
with generally dismal results. For a description of the U.S. program in World War Il, see MORISON, THE
TWO-OCEAN WAR 132 (1963). For the British program see ROSKILL, 1 THE WAR AT SEA, 1939-1945 at
136-137 (1954). The Japanese also used Q-ships to lure American submarines. BLAIR, 1 SILENT VICTORY
505 (1975).

Ay Roan supra n. 2 at 55 states: “In the opening stages of a major conflict, the legal use of ruses may have
great importance. For example, high-value naval auxiliaries at sea at the outbreak of hostilities may show neutral
colors and slap on 2 quick coat of paint. Such ships might escape immediate first-strike destruction and be
available for logistic support.” Also, see generally Crossland, Unconventional Warfare Afloat, U.S. Nav. Inst. Proc.
39-40 (November 1981).



22 Readings on International Law

we, and has lost prestige and the ability to influence events at about the same
speed. Indeed, partly because their sensitivity to the law has been greater than
ours from time to time, it has taken a few egregious violations of the law by the
Soviet Union, like their invasion of Afghanistan, to even the balance of moral
degradation, while our losses have in the main been achieved by many small
increments through ignorance, without the open display of brutality.

Examples unfortunately abound:

* The major users of the Panama Canal watched with dismay as we yielded
practical control of the Canal to a small country with no real national interests
in nondiscriminatory use. We agreed to terms that would make us appear a
Yankee aggressor if we ever have to intervene to secure to the British the rights
of passage we had guaranteed them, and all third countries, in the Hay-Paun-
cefote Treaty of 1901.2

* We yielded in principle on historic rights of straits passage at the start of the
United Nations Law of the Sea Conference, regaining those rights through
elaborate negotiations as if a concession by straits and archipelagic States and in
terms that seem sufficiently clear only to those actually involved in the negotia-
tions? instead of withholding our concession in principle to the end.

* By conceding that the activities of the Pueblo off North Korea would have
been illegal if conducted within twelve miles of North Korean territory, and
asserting the applicability of the 1958 Geneva Convention on the Territorial Sea
and Contiguous Zone to the situation, we conceded a twelve-mile territorial sea
in part through misunderstanding the law involved.*

* We lost freedom of scientific research at sea in part through failure to
consider the legal consequences of the cover story we used in the Glomar
Explorer’s venture.

* In 1976 we legislated against “sovereign immunity” in a way that could, if
our own rules were applied against us, result in the arrest of a Navy ship in a
foreign court at the demand of a foreign commercial tort or contract claimant.°

* We negotiated for some three months with Iran over the release of our
hostages there after it became clear that Iran was willing to let them go, because
our own Iranian assets freeze regulations made it impossible to return to the legal
position that had existed before the seizure and we had destroyed the credibility
of the United Nations and the International Court of Justice as third party
mediators.’

The list is potentially endless.® These losses are not negligible individually and
are tragic taken together. And with regard to all listed here but the last, it is
possible to suggest that a more alert eye to legal aspects of our national security
interests by the Navy would have helped limit, if not entirely avoid, the losses.

Even with regard to technicalities of the law of interest to the Navy, there are
misconceptions that might have tragic consequences for individuals who should
know better. I have heard one officer at the Naval War College remark that


Jacobson 167

placed in the treaty at the instigation of those countries, mostly of the Third
World, who are currently producing the same minerals from land-based sources
and who thus feel threatened by the prospective seabed competition. As it turned
out, the negotiations led to very high production limits that do not pose serious
restrictions on seabed miners; nevertheless, the United States objects in principle
to production ceilings.

¢ Another cited reason for U.S. rejection of the UNCLOS III treaty was the
failure to guarantee to the United States a seat on the ISA’s Council. This was
especially irritating in light of the treaty’s guarantee of three Council seats to
states from “the Eastern European (Socialist) region,” all of whom would
probably be controlled by the Soviet Union. Actually, a last-minute change in
the draft treaty led to a provision that now guarantees a Council seat to the “the
largest consumer [of seabed minerals],” a phrase understood to refer euphemis-
tically to the United States.

* One of the most serious U.S. objections to the 1982 treaty concerns
amendment of the seabed mining provisions. The treaty provides for a Review
Conference 15 years after the start of commercial operations, and a three-fourths
majority vote can eventually be used to change the structure of the seabed regime.
Since the seabed regime could thereby be amended without U.S. concurrence,
much less with Senate advice and consent, the procedure raises U.S. constitu-
tional questions in addition to international political questions. A U.S. fear is that
these amendment procedures will be used in the future to change the “parallel
system”—in which private miners are granted some access to seabed minerals—to
an ISA-Enterprise monopoly dominated by Third World interests. Although
other analysts argue that this fear is exaggerated or unwarranted, it remains a
primary basis for U.S. rejection of the treaty.

At base, the Reagan rejection of the 1982 Convention on the Law of the Sea
rests on ideological underpinnings, principally a fervent belief in the free market
system. It is felt, with clear justification, that the deep seabed provisions of the
new treaty not only fail to uphold the free-enterprise philosophy in its rules for
the seabed mining industry, but are also part of a general Third World,
NEIO-inspired attack on that philosophy.”*

This list of principal U.S. objections to the new treaty—if viewed in isolation
from the rest of the treaty—clearly demonstrates to many, even most Americans,
that the treaty is indeed flawed in light of U.S. seabed interests. If, however, the
treaty is so flawed, so objectionable from a U.S. perspective, we should ask the
obvious next question: how did we get into this mess? The United States has not
been standing on the Conference sidelines, gaping in horror as the eventual treaty
materialized. We have been a primary “mover and shaker” in UNCLOS III.
What were we doing all this time?


206 Readings on International Law

precise coordinates of each. Although a 12-nautical mile territorial sea claim from.
the indicated baselines is presumed (as a result of their. actions in the Pueblo
incident of 1968), this has not been formally announced." Additional corrobora-
tion of a nominal 12-mile territorial sea claim might be inferred from North
Korea’s signing, but not ratification, of the 1982 LOS Convention when it
opened for signature during December 1982." But again, this is conjecture and,

in light of consistently erratic and violent North Korean behavior, probably
unwarranted,

Military Boundary Zone. The ambiguity regarding the precise coordinates of any
of the North Korean claims logically extends to its 50-mile military boundary
zone. While the Department of Defense Maritime Claims Reference Manual
indicates that the military boundary zone extends beyond the presumed territorial
sea of 12 miles, or for a total of 62 miles from the baseline,”? “plain reading” of
the express language of the announcement would seem to indicate that the
breadth of the security zone off the east coast is 50 miles from the baselines, as
appears to be the interpretation of one commentator.*! The military boundary
zone off the west coast is generally agreed to be coextensive with the economic
sea zone, which is 50 miles, abutting China’s similar “military warning zone.”

In any event, although North Korea has signed the 1982 LOS Convention,
the 50-mile security zone clearly exceeds the maximum combined limits of a
permissible territorial sea and contiguous zone (24 miles from baseline). Further,
the absolute prohibition against foreign warships transiting this zone denies
innocent passage in the territorial sea. Finally, high seas surface passage and
unimpeded overflight rights in the contiguous zone and beyond to 50 miles are
extinguished by this unilateral declaration. While the 1982 LOS Convention
recognizes the right of a coastal State, after notification, to temporarily suspend
innocent passage within its territorial sea for security reasons, bans on warships
and prior permission regimes are neither authorized nor accepted international
practice.

In effect, the North Koreans are attempting to assert a degree of control not
recognized under the Convention or past practices in a peacetime regime, except
within a nation’s internal waters.

Diplomatic protests greeted this surprise announcement. As might be ex-
pected, South Korea vehemently opposed the North Korean claim as “unprece-
dented under international law.”*° The Commander in Chief, United Nations
Command, speaking for that command as well as in his role as senior U.S.
commander in the Republic, Commander, U.S. Forces Korea, registered a
vigorous protest. The Japanese voiced disapproval, but in a somewhat muted
fashion due to the economic reality that Japanese fishermen were then catching
over 80,000 tons of fish annually in those waters off North Korea which were
now encompassed within the EEZ and military boundary zone.*® The Soviets,


Index 609

harassment and attacks on Americans, 367, 368, 369, 373
haven for Sandanista terrorists, 378, 383
Noriega's declaration of “state of war” with U.S., 368
threat to U.S. national interests, 367-368
USS. Operation Just Cause, 367, 369-371
US. policy and intervention, 367, 367-374
Panama Canal Treaty (Hay-Paunceforte), 22, 367, 368-369, 371, 372-373
Panamanian Defense Forces (PDF), 373
Papal Bull and Treaty of Tordesillas. See Treaty of Tordesillas.
Pardo, Ambassador Arvid, 70, 282
Partial Test Ban Treaty of 1963, 291
Passage
archipelagic sea lanes. See Archipelagic waters, sea Jane passage.
control of merchant ships, 105
innocent, 64, 74-76, 92, 120-121, 159, 161, 189-196, 200, 206, 209, 243, 245, 248, 252, 256, 267
268, 273, 578-580. See also Freedom of Navigation Program.
overflight, 64, 74, 161, 189, 201, 206, 208, 209, 245, 273, 281, 282-283
submerged, 64, 74-77, 105, 161, 201, 273, 282-283
traffic separation schemes, 248
transit, 75-76, 120, 201-202, 273, 281, 281-282, 295
Uniform Interpretation of Rules of International Law Governing Innocent Passage, 257-258
violation of transit passage rights, 282
warship, 201-202, 216-217, 249, 268, 283, 294, 303-304
Pathogens as biological weapons, 504
Paz, Lieutenant Robert, 368
People’s Republic of China. See China, People’s Republic of.
Persian Gulf
factual background, 85
Freedom of Navigation efforts, 214
importance of visual identification in engagements, 498
national territorial sea claims, 85-86, 88
resource claims, 88-89
shipping casualties in Iran-Iraq War, 264
territorial sea claims, 85-86, 88-89
Persian Gulf states
approaches to the Law of the Sea, 90-91
bilateral agreements, 89
Convention on the Territorial Sea and Contiguous Zone of 1958, 92
island disputes, 89
Kuwait Regional Conference on the Protection and Development of the Marine Environment,
87, 93
multilateral agreements, 87, 89, 90
resource claims, 88-89
territorial seas claims, 88
Persian Gulf War. See also Desert Storm, Operation.
Iraqi tank “surrender” incident, 549
offshore drilling platforms “surrender” incident, 541-543, 550
reach of Iraqi Scud-B missiles, 503
Peru, continental shelf claims, 160-161
Philippines, Republic of, Sino-Philippine maritime dispute, 184
Pierce, President Franklin, 356
Piracy
aerial. See Hijacking, aerial.
Barbary pirates, 357-358
Harvard Researchers’ Draft Convention on Piracy, 440-441
international, 440-441
jure gentium, 440
offshore maritime terrorism distinguished from, 440-442, 441-442, 445,



34 Readings on International Law

commanders that this set of volumes (which is what it would turn out to be)
would be incomprehensible without more study than time and energy would
permit. Besides, it would probably be useless in an emergency not squarely
envisaged in some pertinent treaty. Since emergencies are never squarely en-
visaged, since it is never clear that any particular treaty is pertinent to the exclusion
of others, and since questions of interpretation arise over the simplest legal
language, a modern compilation could not serve the function of the 1741
compilation.

It would also be undesirable. It is no longer true that the rules of international
law are codified in documents that make sense to an intelligent and experienced.
person who has not devoted considerable time and effort to their study. Scan
simply the 1958 Geneva Convention on the High Seas and consider that any
American compilation like the 1741 book would not include the current version
of the draft Convention of the Third United Nations Conference on the Law
of the Sea (UNCLOS III)? because that draft is not yet (and, indeed, may never
be) a treaty ratified by the United States. But to conclude from that fact that the
rules of 1958 still bind the United States and the flag States of all the other parties’
vessels our Navy ships might encounter on the high seas would be totally wrong.
The new draft embodies practices and interpretations accepted as proper, even
if not formally binding, and the burden would be on the State relying on the
1958 Convention’s formulation in case of doubt to show that it had not been
changed by universal acquiescence in some new practice as evidenced by the
current draft. Indeed, the extension by the United States itself of an exclusive
fisheries zone reaching two hundred miles from our coasts was accomplished not
by a revision of the 1958 Convention but by legislation against the advice of the
State Department.? Moreover, not all maritime States are parties to the 1958
Convention, and the relationship of that attempt to codify the law of the sea to
states who rejected the codification, for whatever reason, is complex and cannot
easily or quickly be summarized. And what is true for that single Convention is
true for many.

When I contemplated this situation, it occurred to me that a general rule
existed which all seagoing officers learn sooner or later: On questions of treaty
interpretation, only Washington is capable of giving guidance. The naval officer
who tries to act as his own lawyer, like the lawyer who tries to handle his own.
case, treads dangerous ground and will probably hang his client.

And what is true for treaty interpretation is true for all other questions of
international law; perhaps even more so when there is no definitive text at all to
refer to, or only a text like a statute, or a UN General Assembly resolution, or a
draft unratified treaty, that is written for other purposes and aimed at other people.
It is not rational to assign a competent international lawyer to each ship, not
because there is a great shortage of competent international lawyers—and the
calibre of military lawyers is at least as high as the calibre of lawyers in our society


Booth 103

Union and Sweden and Denmark, the former being neutral and the latter being
one of NATO’s smallest members. For naval considerations the Soviet Union
would have an interest in increasing its influence over these states, by a mixture
of carrot and stick, in order to encourage a favorable interpretation of the rules
of passage. This might cause embarrassment for the straits States. A failure to
agree with the Soviet Union, or the objection to the passage of a particular ship,
might be regarded as an “unfriendly” act, and so cause important political
repercussions, Alternatively, constant giving way on marginal cases would be an
admission of weakness and lack of confidence.

Insum, both superpowers could accept a more restrictive regime for the Baltic
Straits without seriously degrading their overall strategy, but they are not likely
to accept it as a change in the law of the sea because it might set precedents for
strategically more important straits. It would therefore have to come about as a
version of an arms control (disengagement) proposal, but even here the super-
powers might fear precedents. In addition, the neutrals and NATO allies do not
favor any move toward the idea of the Baltic becoming a closed sea dominated
by the Soviet Union: and it is this factor rather than any purely military
consideration that should govern NATO’s attitude.

The seabed. A more restrictive regime would attempt to define with more
precision what was “military” and therefore presumably not “peaceful.” This
would be a frustrating exercise: even if any agreement were reached, there would
be room for ambiguity. Despite such problems, calls for restrictions on the
military use of the seabed can be expected, especially in the areas over which
coastal States already have rights, and believe that they should have more. This
means continental shelves and the seabed below the EEZ.

There have already been harbingers of what might happen. In its adherence
to the Seabed Treaty in 1973 India announced that there could be no restriction
on its sovereign right to verify, inspect, remove or destroy any weapon, device,
structure, installation or facility that might be emplaced on or beneath its
continental shelf by any other country. The position of the United States was
that the rights of coastal States were restricted to the exploration and exploitation
of natural resources, and therefore were not concerned with military equipment.
Further out, on the deep seabed, UNCLOS agreed that it be reserved exclusively
for “peaceful purposes.” The U.S. Navy, not surprisingly, has chosen to define
seabed listening devices as falling under this heading. Some would disagree. The
Soviet Union has similarly taken a permissive (conservative) attitude toward this
problem, arguing that states have the same rights on the continental shelf as on
the high seas.

Because of the naval traffic patterns of both alliances in the northeast Atlantic,
it is an area that is impregnated with listening devices. The U.S. SOSUS system
has attracted most attention.° If there were to be pressure for more restrictions
on seabed military use, the major naval powers would object, because restrictions




Rubin 39

foolish indeed. But to ignore the obvious fact that the final determinations of the
law made by the world community and by history deal severely with those who
ignore the law is to be blind indeed. The guidelines of reciprocity, minimal force,
and the ultimate effectiveness of facts, coupled with a healthy skepticism about
glib legal labels and an appreciation of the inherent doubts that underlie all legal
argument until history has had a chance to deliver its judgment, seem appropriate.
They lead to caution in action, which is all to the good when real lives and
property are at stake, but do no inhibit necessary action in a true emergency.

So far, we have been addressing international law at such a basic level that the
degree of generality may obscure the practical utility of the law. It is possible to
be more specific.

6. Territorality. The prehistoric basis for our nation-state system probably rests
on religious and ethnic-family and tribal feelings rooted in our deepest in-
heritance; part of our wiring rather than our software programming. It is also
possible that to some degree our emphasis on territorial integrity is built into the
system. International law takes account of both in allowing states to make rules
for their nationals wherever they may be, and to make rules for everybody,
foreigners as well as nationals, within the territory politically dominated by the
rule-making and rule-enforcing authority, the government. The system is more
complex than it seems; there are territory-less rule-making and rule-enforcing
organizations, like churches; there are exemptions from territorial enforcement
for transiting diplomats and others; there are overlaps and underlaps. Fundamen-
tally, however, the territorial sovereign is supreme in his territory, and his
territory includes his internal waters, territorial seas and, for some purposes, wide
belts of fisheries and other exploitation zones. When a vessel of another State
appears in any of those zones, even if there is no treaty governing the situation,
as is in fact the case regarding extended fisheries zones today, and even if forsome
purposes the zone is labeled part of the high seas, an overlap of sovereignty occurs.
The flag State of a vessel has the jurisdiction in that vessel necessary to allow the
master to exercise the authority he needs without fear of a claim against him for
false imprisonment or assault when he disciplines a crewman or passenger.
Indeed, from earliest days vessels on the high seas and in foreign ports were
conceived as part of the territory of their country of origin for purposes of internal
discipline and property rights. But a vessel is not a part of the flag State’s territory;
the analogy loses its persuasiveness quickly when contemplating air space above
the vessel and the routine exercise of port-state customs and immigration
authority on boarding visiting private vessels. The extension of territorial
jurisdiction is built on a fiction, limited by the principle of effectiveness, and
yields in general to the prescriptions of the territorial waters or ports. Even though
warships, by long usage and mutual acquiescence, are normally considered
immune from the territorial sovereign’s enforcement authority, in case of conflict
their only recourse is to leave the territorial waters. In general, in these days of


190 Readings on International Law

of the “Motherland,” at the expense of the maritime mobility contemplated
during UNCLOS III.

This article will address the proposition put forward in the new Soviet writings
on innocent passage in the territorial sea, that coastal States are entitled to limit
warship innocent passage to “traditional” or other navigation routes designated
by the coastal State. The analysis will begin with the innocent passage regime as
reflected in the text of the 1982 LOS Convention. It will then consider the view
of Soviet naval publicists, the negotiating history and general background of the
innocent passage regime, and policy implications.

Text

In order to place the issue in context, we must first comprehend the basic
provisions that comprise the regime of innocent passage. Article 17* recites the
fundamental doctrine that “ships of all States . . . enjoy the right of innocent
passage through the territorial sea.” Article 18 defines “passage” as “continuous
and expeditious” navigation through the territorial sea. Passage may include
stopping and anchoring, but one incidental to ordinary navigation or because of
force majeure, distress, or rendering assistance to those in danger or distress.

Article 19 defines the meaning of “innocent passage.” First, “[p]assage is
innocent so long as it is not prejudicial to the peace, good order or security of
the coastal State.” This formulation creates a presumption that passage is innocent
unless otherwise demonstrated. Next follows a list of objectively defined activities
which, if engaged in, shall be considered to be “prejudicial to the peace, good
order or security of the coastal state,” in other words, non-innocent:

* any threat or use of force against the coastal State;

* any exercise or practice with weapons;

* collection of information to the prejudice of the defense or security of the
coastal State;

* any act of propaganda;

* launching, landing, or taking on board any aircraft or military device;

* “loading or unloading of any commodity, currency or person contrary to
the customs, fiscal, immigration or sanitary laws and regulations of the coastal
State”;

* willful and serious pollution;
any fishing activity;
any research or survey activity;
interfering with communications or other facilities; and

* “any other activity not having a direct bearing on passage.”

.

* Unless otherwise specified, references to “Articles” refer to the articles of the 1982 LOS
Convention.


124 Readings on International Law

Government, on the other hand, tended to welcome outside participation in the
region’s economy and friendly links with the ‘West. Such connections could
help protect it from insurgency and military deployments by Communist forces
and shield it against pressures for regional influence exerted by its neighbors.
These complex security factors caused concern to the United States and the
Soviet Union, which both undertook various diplomatic initiatives and naval
activities in response to them. In the month after the joint declaration was issued,
both the United States and the Soviet Union undertook naval operations in the
Straits.°° And while the United States apparently did not respond in a formal
manner to the joint declaration, the Soviet Union the following year received
the Malaysian Prime Minister in Moscow, made contacts in Tokyo with the
Japanese Government, and sent a diplomatic mission to Jakarta.>!

Japanese actions were perhaps most influential in motivating the coastal States
to declare regional autonomy over navigation through the Straits.” In 1968
private interests in Japan formed the Malacca Straits Council as a nongovernmen-
tal organization affiliated with the Japanese Keidanren (Federation of Economic
Association). Atop the natural regional reaction to such a title being assumed by
Japanese interests, the Japanese press began playing up the idea of the Straits as
Japan’s “lifeline”; concepts of Japanese naval defense of the Straits even appeared.
A Japanese delegation visited the region in 1970, acting, it was alleged, as if it
were an “equal partner” in managing the navigational situation in the Straits;
hydrographic surveys have been sponsored by Japanese organizations since 1969,
although they have been occasionally impeded by local reaction to such Japanese
initiatives. These disturbing activities were capped off in July 1971 with a formal
proposal by the Japanese representatives to the Intergovernmental Maritime
Consultative Organization (IMCO) that a traffic separation scheme (TSS) be
established in the Straits under IMCO auspices.

Development of a Regulatory Regime for Oil Tankers Transiting the Straits of
Malacca. After issuance of the joint declaration, political difficulties both within
and outside the region impeded further cooperative action, although various
informal actions were taken by the coastal States, outside powers, and industry.
Several radical proposals surfaced—one by Indonesia to ban vessels in excess of
200,000 dwt and another by the head of Malaysia’s state oil company to impose
user fees on passing vessels.** A strict prohibition based on vessel size would have
had serious effects on the economics of oil transportation between the Middle
and Far East; vessels over 200,000 dwt, of which there were a substantial number,
would be forced to proceed through the Straits of Lombok and Makassar in the
Indonesia archipelago as an alternative to the Malacca route. The Lombok route
would involve over a thousand nautical miles—3 days—extra travel. Thus
transport by the larger VLCCs would have tended to become uneconomical at
the same time that there was significant capacity in this range, and the imminent


298 Readings on International Law

vi
Mine Warfare

Although all 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 (VIII) Relative to the Laying of Automatic Contact Mines
is the only treaty law governing the emplacement and employment of naval
mines.'® Hague VIII 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 book, Mine
Warfare at Sea,'®° 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 (friendly and enemy)
with an extension allowed to ten nautical miles off defended ports.1° Because
of what Professor Levie describes as “strange twists” in negotiation and par-
liamentary complications,’ 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 Emest 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, . . 7192

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.'®? 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.'*

After examining the practice of States in all conflicts since the adoption of
Hague VIII in 1907, Professor Levie concludes that:


Rubin 35

in general, including its academics—but because a competent international
lawyer himself will know that at the root of every legal question is not an answer
but a doubt. A learned analysis of the precise legal risks of alternative courses of
conduct in an emergency is not only useless in practice, it is impossible.

This is not to say that guidance, even elaborate and detailed guidance, should
not be attempted, but that the utility of complex rules of engagement and
equivalently detailed orders is limited to the circumstances in which the naval
commander has the time and opportunity to use them. They may fill a gap
between an emergency situation where quick and decisive action (or a decision
not to act) is imperative to save life, protect a command, or assert a major national
interest, and the situation in which there is time and opportunity to seek the
guidance ofa headquarters equipped to give it. But they cannot themselves guide
a naval commander who must make a quick decision.

What is needed is not definitive guidance, then, but a few, easily grasped, rules
of thumb; guidance for guts when a gut decision must be made.

Gut decisions by naval commanders are usually well based in their experience
and general knowledge of American interests and policies, but cannot serve
without rules of thumb when legal interests are at play. Our guts frequently
deceive us, An anecdote, slightly inapropos, may be worth preserving:

In 1965 I was the lawyer in the Office of the Secretary of Defense charged
with responsibility for legal aspects of our Southeast Asian operations. My
principal client was John McNaughton, a native of Pekin, Illinois, then Assistant
Secretary of Defense (International Security Affairs), who in private life had been
a professor of law (but not international law) at the Harvard Law School. At a
meeting in his office he asked for the views of his staff, including myself as his
lawyer, on a proposal that had been referred to Secretary McNamara by President
Johnson: Should we mine Haiphong harbor? As was typical in those days, we
had not been given advance notice of the subject of the meeting, thus I had not
checked the SEATO Treaty or other documents when I was suddenly asked
whether it was legally required that the United States notify its allies before
undertaking the operation. McNaughton’s view was that it was undesirable as a
matter of policy to notify our allies. Notice was tantamount to asking for
objections; they might object and raise political problems even if legally we would
be justified in the mining. Confronting them with a fait accompli would be easier
for them to accept and explain to their own constituents than what might appear
to be a concurrence construed out of their failure to object.

I disagreed. My view was that the risks to their merchant ships in Haiphong,
which might be delayed there past the moment our mines were armed even if
our notice were given before then, were significant, and that our failure to notify
them before the mines were laid would, if they then objected, either result in
our delaying the arming of the mines (in which case we might as well have given
them prior notice), or create serious political problems ultimately resulting in


388 Readings on International Law

continue to call for pragmatic responses independently of ideological commit-
ments or perspectives.

Refraction of “Terrorism” in the U.N.’s Many Prisms. There appears to
be abroad in the world, and reflected in many meetings, panels and symposia, an
expectation, indeed a demand, that the United Nations “do something” to
prevent the recurrence of transnational terroristic acts. The United Nations has
done many things in this regard that are within its competence. Apart from the
Security Council, especially when it contemplates action under Chapter VII of
the Charter, the organs of the United Nations, and in particular the General
Assembly, constitute forums of debate rather than the repositories of legislative
or executive authority.” In the General Assembly, moreover, the 150 member
States reflect almost every ideology now forming part of the political ideas and
premises of policy (if such a word is applicable) at large in the world today.
General Assembly Resolutions, in particular those resulting from a hard-won
consensus, while not having the status of legislation, reflect compromise and
accommodation regarding emerging common values and, possibly, an agreed
view of future State practice. It may, furthermore, direct incipient development
of national policies into cooperative channels. In short, the General Assembly
tends to achieve, as its work product in any field, the highest common factor
(low as this may appear to many) of the relevant values and perspectives of the
multipolar world it reflects.

Specifically, the three Resolutions relating to terrorism? that the General
Assembly agreed upon last fall at its 32nd Session, were inscribed as agenda items,
intensely negotiated, amended and carried out with the purpose of both articulat-
ing and defining proscribed acts of terrorism and of bringing the pressure of world
public opinion to bear on States often known as “sanctuary States.” These are
the States that provide training, weapons and safe havens to which terrorists can
flee after a caper or be received after release from jail through hostage-taking,
and, generally, make acts of terrorism safer for their perpetrators to commit. It
is observable that, with the Mogadishu rescue of the Lufthansa passengers last
year, Somalia has ceased to be a sanctuary State. Indeed, the expression of a
widespread disgust with terrorists’ excesses through General Assembly resolutions
has assisted in the erosion of the number of safe haven States for terrorists. Thus,
while not acting as a legislature, let alone as an effective one, the U.N. General
Assembly tends to bring moral opinion to bear, making gratuitous acts of cruelty
and the denial of human rights more embarrassing or more costly to perpetrate.

On the other hand, it may be observed that the greater the number of
resolutions passed condemning terrorism, and the greater the number of com-
mittees, subcommittees and working groups deliberating on the subject, the more
innocuous and watered down the resolutions and reports tend to become. The


Index 623

‘United States acts, agreements, laws, and resolutions
Agreement on the Prevention of Dangerous Military Activities (1989), 255-256
Agreement between the United States and the Union of Soviet Socialist Republics on the Maritime
Boundary, 219, 220, 225, 226-228
Anti-Hijacking Act, 381
Arctic Research and Policy Act of 1984, 226
Convention of Cession (1867), 221
Fishery Conservation and Management Act (1976), 57- 58
Governing International Fishery Agreement, 221
IncSea agreement of 1972, See IncSea Agreement of 1972,
Multinational Force in Lebanon Resolution, 352
Omnibus Anti-Terrorism Act, 381, 419
Public Law 91-644 (1971) sanctions regarding assassination, kidnapping, or assault of congressional
representatives, 418-419
Tonkin Gulf Resolution, 352
Uniform Interpretation of Rules of International Law Governing Innocent Passage, 257-258
U,S.-U.S.S.R. Agreement on the Prevention of Dangerous Military Activities (DMA), 578, 580
‘War Powers Resolution, 351, 413
Universal Declaration of Human Rights of 1948, 9
Universal Postal Union, 4
‘Unnecessary suffering, 469-470, 471, 472
Unrestricted mobility, for naval forces, 73-76, 77, 80-82
Urgent Fury, Operation, 321-329
Uruguay, LOS Convention statements, 288
Use of force in peacetime, intervention exceptions, 334-335
U.S. Draft Definition on International Terrorism, 380-381
U.S. Geological Survey, 223
USS. National Security Decision Directive (NSDD) 138, 455, 462-463
USS America, 353
USS Caron, 216, 243, 248-252
USS Coral Sea, 353
USS David R. Ray, 248
USS Dyess, 248
USS Enterprise, 357-358
USS Essex, 575,
USS Farragut, 248
USS Nicholas, 541-543, 550
USS Nimitz, 482-483
USS Pueblo, 22, 36, 81, 206, 209, 486-487
USS Saratoga, 353
USS Stark, 362
USS Tumer, 248
USS Yorktown, 216, 243, 249-252, 353
U.S. v. Red Feather (Wounded Knee incidents), 415-416, 425
U.S, v. Tran, 369

Vv

van Bynkershoek, Comelius, 266

‘Vance, Secretary of State Cyrus, 556

Vattel, Emmerich de, 544

Versailles peace treaty of 1919, 525,

Victors' tribunals, 23

Vienna Congress of 1815, 525

Vienna Convention of Diplomatic Relations (1961), 40
Vienna Convention on Consular Relations, 10

‘Vienna Convention on Diplomatic Relations, 10


Boma 201

There are several other passage regimes which merit an explanation: ar-
chipelagic sea lanes passage and transit passage through international straits.

An archipelagic nation is constituted wholly of one or more groups of islands,
e.g., the Republic of the Philippines. Within the limits specified by the 1982
LOS Convention, such nations may draw straight baselines joining the outermost
points of their outermost islands. The waters enclosed within these baselines are
called archipelagic waters. These archipelagic baselines are also the baselines from
which the archipelagic nation measures seaward for its territorial sea, contiguous
zone and exclusive economic zone. The United States recognizes the right of an
archipelagic nation to establish archipelagic waters, provided that the baselines
are drawn in conformity with the 1982 LOS Convention and the United States
is accorded navigation and overflight rights and freedoms under international law
in the enclosed archipelagic and adjacent waters.'?

Two means are available to preserve archipelagic sea lanes passage. First,
archipelagic nations may designate archipelagic sea lanes through their ar-
chipelagic waters suitable for “continuous and expeditious passage of ships and
aircraft.” All normal routes customarily used for international navigation and
overflight are to be included in this scheme. If the archipelagic nation does not
designate such sea lanes, the routes normally used for navigation and overflight,
nonetheless, remain available to all nations for archipelagic sea lanes passage.

The right of archipelagic sea lanes passage is defined as “the exercise of the
freedom of navigation and overflight for the sole purpose of continuous and
expeditious transit through archipelagic waters, in the normal modes of opera-
tion, by the ships and aircraft involved.”"> This right of archipelagic sea lanes
passage cannot be impeded nor suspended by the archipelagic nation for any
reason.

With regard to international straits, two situations exit. The first involves
international straits overlapped by territorial seas, i.e., where the territorial seas
of the adjacent coastal nations leave no high-seas corridor. In this instance, the
ships and aircraft of all nations, including warships and military aircraft enjoy the
tight of unimpeded transit passage through such straits. Transit passage is the
exercise of the freedom of navigation and overflight solely for the purpose of
continuous and expeditious transit in the normal modes of operation utilized by
ships and aircraft for such passage. “Normal modes of operation” means that
submarines may transit submerged, and surface warships, consistent with sound
navigational practices and security of own force considerations, may transit in
formation, and launch and recover aircraft.

Transit passage through international straits cannot be suspended by the coastal
or island nation for any purpose during peacetime. This principle of international
Jaw also applies to transiting warships of nations at peace with the bordering
coastal or island nation, but involved in armed conflict with another nation.
However, consistent with generally accepted international standards and to


Robertson 287

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.”

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.!”* 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 terms droit souverain and juridiction to describe the jurisdiction exercised
by the coastal State in the EEZ, which are also the terms 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 XIII. In his view, it is clear that
what was meant by the terms droit souverain and juridiction in Hague XIII was
maritime areas subject to the sovereignty of the State—in modern terms, the
territorial sea and internal waters.'25 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,”!° since “[tJhe
starting point of the regulations ought to be the sovereignty of the neutral
State.”!?7 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.”!78

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 final


Neubauer 195

is non-innocent under Article 19, thus preventing coastal States from using
violation of any variety of law or regulation as an excuse to require warships to
leave the territorial sea. To further minimize the potential for conflict, coastal
States may not hamper innocent passage, impose requirements that have the
practical effect of denying or impairing innocent passage, or administer innocent
passage in a discriminatory manner.

Evaluation and Conclusion

The essential characteristic of the territorial sea regime is that “ships of all
States . . . enjoy the right of innocent passage through the territorial sea.”!3 The
Soviet view—where there are no designated routes there is no innocent passage
for warships—has no basis in customary international law, and is a gross departure
from the principles supported by the United states and the Soviet Union and
accepted by UNCLOS III. Attempts to restrict foreign warships to a few
designated routes unlawfully hamper—indeed, can all but preclude—innocent
passage. Exercise of the right of innocent passage reflected in the 1982 LOS
Convention by sailing outside Soviet-designated routes does not render the
passage non-innocent, and would not, therefore, justify an order to the vessel to
leave the territorial sea.

The device of restricting warship innocent passage in the territorial sea to a
few designated routes is a transparent effort to circumvent the balance achieved
during UNCLOS III between coastal State security and freedom of navigation.
It is disturbing that Soviet writers are advocating a position contrary to this
balance of interests which was supported by the Soviet Union throughout
UNCLOS III. The precedential effect of this position should not be ignored. It
would provide incentive to other States in their attempts to impose precisely the
kind of prior notification or authorization requirements which were rejected at
UNCLOS III. As was so aptly put by Professor John Norton Moore, a prominent
international law authority: “[T]he costs associated with any failure to recognize
freedom of navigation . . . will not necessarily be immediately manifest. Initial
challenges may be subtle, plausible, and limited. Through time, however, the
common interest will be eroded by unwarranted restrictions on transit, dis-
crimination among users, uncertainty of transit rights, inefficient and inconsistent
regulations, efforts at political or economic gain in return for passage, increased
political tensions, and perhaps even an occasional military confrontation. . . .”"*

Although purporting to penetrate the mentality of Soviet writers may be risky
business, in this instance their motivation appears plain: to curtail general access
of foreign warships to the Motherlands’s territorial sea. The Soviet publicists are
attempting to construct an argument which will enable them to reap the benefits
of the navigational principles enshrined in the 1982 LOS Convention for the
Motherland’s blue-water navy, while severely restricting navigational rights for


Chapter 21

Grenada: The Spirit and the
Letter of the Law*

Captain William T. DeCamp, US Marine Corps

D uring the predawn hours of 25 October, 1983, a multinational force from.
the United States and six Caribbean island nations launched “Operation
Urgent Fury,” the invasion of the island of Grenada in the eastern Caribbean
Sea. President Reagan subsequently gave three reasons for the use of military
force on Grenada. “First, and of overriding importance, to protect innocent lives,
including up to 1000 Americans whose personal safety is, of course, my
paramount concern. Second, to forestall further chaos, and third, to assist in the
restoration of conditions of law and of governmental institutions to the island of
Grenada,”"

Since the time of the invasion, there has been considerable discussion among
the friends and foes of the United States, and among political factions within
America, the focus of which has frequently been the international legality of the
action. The purpose of this paper is to address, not only the legality of the rescue
mission, but also the morality of the mission in the broader context of realpolitik.

Grotius identified the first just cause of war as, “an injury, which even though
not actually committed, threatens our persons or our property. .. . The danger
must be immediate, and as it were, at the point of happening. If my assailant
seizes a weapon with the obvious intention of killing me, I admit too that I have
a right to prevent the crime.”

On 27 October 1983, the Reagan Administration announced that evidence
including “documents that were found at a Cuban military installation in the
village of Frequente [indicated] that serious consideration was being given to
seizing Americans as hostages. . . . It appears we got there just in time to prevent
a tragedy.”>

There were eleven hundred Americans on Grenada at the time of the invasion,
eight hundred of whom were students at St. George’s Medical School, which
operated two campuses on the island. U.S. diplomats returning to Washington,
D.C. from Grenada on 23 October reported to the Administration that there
was high anxiety among many of the St. George’s medical students. Bill Riffley,
a medical student living off campus, surely received a dose of high anxiety when

© Reprinted from the Naval War College Review May-June 1985.


202 Readings on International Law

promote navigational safety, the coastal or island nation may designate sea lanes
and traffic separation schemes which ships in transit must respect.!*

With respect to the second category of international straits, those not com-
pletely overlapped by territorial seas and, in archipelagic waters outside ar-
chipelagic sea lanes, all surface ships enjoy the more limited right of innocent
passage. Submarines must transit on the surface; launching and recovery of aircraft
are not permitted; and weapons exercises may not be conducted. Innocent
passage through such straits may not be suspended. Temporary suspension of
innocent passage through archipelagic waters outside archipelagic sea lanes is
permitted in specified areas when essential to the archipelagic nation’s security,
but only after prior promulgation of its intentions to do so, and the temporary
suspension must be applied in a nondiscriminatory manner.!®

A special status accrues to warships and military aircraft which, as mobile
extensions of their sovereign, enjoy general immunity under custom, past
practice and the provisions of the 1982 LOS Convention.'® Their government
may be ultimately held liable for damages, but the only self-help measure
immediately available to the coastal state in the event of an alleged violation of
applicable rules is to require that the offending ship leave its territorial sea.

Many coastal nations have established what the United States and others deem.
to be excessive maritime claims, which are either too broad in extent, or seek to
ban or place impermissible preconditions on the exercise of innocent passage,
transit passage, or archipelagic sea lanes passage. These claims, whether asserted
by friends or potential adversaries, are inimical to the interests of the United States
and any other seafaring sovereign. These restrictions imperil the unrestricted
movement of commerce and resources in the global market and are detrimental
to the essential mobility of U.S. defense forces.

They are, therefore, susceptible to peaceful challenge under the FON Pro-

gram.
Nature of the North Korean Claims

On 22 June 1977, North Korea promulgated a 200-mile exclusive economic
sea zone which was to take effect on 1 August 1977.'7 The language of this
pronouncement was unobjectionable except for the practical consequences of its
attempted establishment off the west coast of North Korea, where only ap-
proximately 100 miles of Yellow Sea separates the peninsula from its behemoth
neighbor, the People’s Republic of China. However, not wishing to press the
issue with their sometimes fraternal comrades, the North Koreans have indicated
through their subsequent enforcement practices that they will assent to a midline
delineation of the EEZ in the Yellow Sea, which approximate a 50-mile zone.'®


424 Readings on International Law

The Joint Chiefs of Staff also has organized a panel of senior officers, both
active and retired, to oversee training and operational plans.°° Further informa-
tion concerning the size, scope and capabilities of this entire effort is not available
because of security considerations.

The United States in the early 1980s finds itself on the horns of a dilemma.
President Reagan has pledged “swift and effective retribution” against acts of
international terrorism directed against the United States. However, the ability
of this nation to conduct a military response has been attempted only once and
the effort was unsuccessful. Though some have argued that the failure centered
on a logistical problem not likely to occur again, the result remains the same.
Secretary of Defense Caspar W. Weinberger enunciated his difficulty in tes-
timony before Congress when he advised that “describing the country’s antiter-
rorist capabilities might compromise a future operation, but that keeping them
secret was preventing him from sending a strong message to potential ter-
rorists.”°7

Deterrence is one of the four main blocks of the U.S. strategy to counter
terrorism. Integral to deterrence strategy are capability, credibility, and com-
munication. This requires that those seeking to employ this concept need to
communicate their capability to insure its credibility to the adversary.>* Thus,
the decision faced by Secretary Weinberger is indeed a difficult one.

This paper was written as part of a larger study of the U.S. Government's response to
transnational terrorism.

Notes

1. Moskos, The Emergent Military: Civil, Traditional, or Pluralisic? in ENDICOTT & STAFFORD,
AMERICAN DEFENSE POLICY 527-537 (1977).
2, Id, at 528-529.
3, Garrison, The Political Dimension of Military Professionalism, in ENDICOTT & STAFFORD, supra na 1 at
582.
4, Id.
5. Id.
6. Id. at 583.
7. Mecks, Hlegal Law Enforcement: Aiding Civil Authorities in Violation of the Posse Comitatus Act, Mil. L.
Rev. 83, 91-92 (Fall 1975).
8. Id. at 92, Itshould be noted that the vote to pass the act was fairly close: 130 to 117 with 44 abstentions.
9, Id, at 103.
10. Rabe, Crisis Management of Terrorist Incidents: Legal Aspects and Issues, 14 (Unpublished paper, copyright
1979 by author).
11, Td,
12. ULS. Constitution, Asticle 2, Section 3.
13. Id, Article 4, Section 4.
14, Id, Article 14, Section 1.
15, USS. Laws, Statutes, etc., “General Military Law,” U.S. Code, Title 10 see, 331—Armed Forces, 1973
ed, (1974).
16. Id. sec. 332.
17. Id, sec. 333,


64 Readings on International Law

Because the question of management and control of these resources requires
definition of the area in which such control would be exercised, it became
necessary to define the boundary between national jurisdiction over the shelfand
international jurisdiction over the seabed. In the meanwhile there had been
increasing pressure on the ocean environment with the threat that unless effective
international cooperation could be achieved, the living resources of the ocean
could be subject to irreparable damage.

Coastal states in various ways were beginning to feel pressure on the protein
resources within their coastal waters, and there is no more dramatic example of
this than the virtual destruction of some fishery stocks on Georges Bank off Cape
Cod as the result of overfishing, largely by Soviet vessels. But other countries
also felt that the need for some form of management and control over these
fishery stocks required the extension of coastal States’ jurisdiction. As much as
30 years ago a few countries in South America proclaimed coastal State jurisdic~
tion through the extension of the territorial sea out to 200 miles. From the
standpoint of freedom of navigation and overflight there was the risk that other
countries would follow suit, thereby, ifnot denying, at least creating very serious
complications for freedom of navigation and overflight within the 200-mile zone.
There was agreement that control over the problems of pollution as well as
fisheries required the updating of the ancient definition of the territorial sea by
extending it from 3 miles to 12. A consequence of this, in turn, would be that
some 115 straits around the world would be overlapped by territorial seas.

As is commonly known, the legal provisions governing navigation and
overflight over a territorial sea are defined in terms of “innocent passage.”
Innocent passage means, in effect, that vessels transiting the territorial sea must
do so expeditiously and without engaging in any such activity as military exercises
or fishing. But innocent passage does not embrace the submerged passage of
submarines nor does it include any right of overflight. The overlapping of straits,
therefore, could result in the denial of any legal right for a submerged submarine
to enter the Mediterranean through the Strait of Gibraltar or to travel submerged
through any other major strait, like the Strait of Malacca or the Strait of Lombok.
Some 30 percent of the ocean area could be denied freedom of navigation and
overflight if jurisdiction over the 200-mile zone for the protection of fisheries
and other resources also carried with it the legal consequence that such waters
were regarded as territorial waters rather than waters subject to high-seas
freedoms. This extension of coastal State jurisdiction also could present problems
for the free conduct of maritime scientific research, and that has in fact been one
of the concerns of the Conference.

It was recognized that because of the problems that would inevitably arise in
the application of broad new regimes, there needed to be established a system of
binding dispute settlement. The text now before the Conference would, if


340 Readings on International Law

“will be progressively applied to achieve or defeat political goals without resulting
in hostilities; that if hostilities do occur they can be brought to a successful
termination without progression to another mode of warfare or to other areas of
conflict. Intrinsic to this assumption is the requirement, to put it simply, that the
other side fires first, for then the use of force can be presented as self-defense
«+++ The rules of the game . . . require that the burden [of shooting first] be
shifted, if possible, to the other side in the event of a confrontation of warships,
or at least that the opening of fire be necessary to enforce the law. . . .”°°

But modern technology can make taking the first hit lethal. Yet the rule against
shooting first remains on the books, And U.S. experience with the exceptions
to the rule should convince any reader that a successful political justification for
using force is extraordinarily difficult except when based upon self-defense or
law enforcement, as O’Connell says. It is therefore not surprising that the only
justification for shooting first given the on-scene commander by typical
peacetime general ROE is anticipatory self-defense of his unit.

Modern technology assists him in determining the imminence of an attack on
his unit—just as it makes his adversary’s weapons come further, faster, more
accurately and more destructively, toward him. In the end, the high standard
given by Daniel Webster is useful to have in mind even if it must be interpreted
in light of modern technology: Anticipatory self-defense should be confined to
cases in which the necessity is “instant, overwhelming and leaving no choice of
means and no moment for deliberation.”

This raises a difficult question with which I will conclude this paper: Should
the United States avoid shooting first (with the exceptions of self-defense and
law enforcement) whether or not the Soviet Union and other hostile States
regularly do so? My answer is yes, for the following reasons:

¢ The rule against first use of force is based on long-held Western values and
diplomatic goals. When our allies perceive us as departing from the rule, we are
likely to lose their support, at least temporarily—as we did in Grenada. In the
long run, we may consider the strength of our alliances to be more important to
our security than exercising the freedom to flout the rule.

* Along-term U.S. diplomatic goal is, to quote Woodrow Wilson, “to make
the world safe for democracy.”*” Democracies cannot flourish as well in a lawless,
“might-makes-right” world. To sustain support for our leadership in the direc-
tion of a world which respects the rule of law, we need to comply ourselves.

* The rule against first use of force probably still has some deterrent effect,
though that is difficult to prove. States never say: “But for the rule we would
have committed aggression.” Because we hear about interventions in violation
of the rule, we tend to conclude it no longer deters aggression. Even if the rule
lacks deterrent effect, however, it clearly helps justify mobilization at home and
assistance from aboard when using force in self-defense against a clear armed
attack—as the British found in the Falklands conflict.


290 Readings on International 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'® and the LOS Convention”
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. '* 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.'*? The negotiat-
ing 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 ofa freedom of the high seas.!°° 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.

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 exclusive
right to construct and to authorize and regulate the construction, operation and
use oft

(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,


74 Readings on International Law

pessimism is warranted remains to be seen but the picture has probably been
overdrawn. Undoubtedly there will be disputes and adjustments in the new
order, just as there were prior to UNCLOS III, but predictions of frequent
challenges to the movement of naval forces exaggerate the importance of
international law. Developing coastal states are not likely to provoke a confron-
tation with one or more naval powers merely because the law of the sea permits
a new range of coastal state demands. The relative importance of legal rules,
particularly those that are new or open to interpretation, diminishes as the risk
of confrontation increases. Nonetheless, conflicts will occur and international law
will affect the way the conflicts are perceived by both participants and non-par-
ticipants. It is important, therefore, to consider some of the areas in which coastal
state claims may lead to disputes with naval powers.

International Straits. Innocent Passage. The law of the sea development that has
aroused the most comment is the effect on international straits of broadening
territorial seas from 3 to 12 miles. There are approximately 116 straits not
currently overlapped by 3-mile territorial seas that would be spanned by 12-mile
territorial seas.®

Obviously, straits are significant in naval planning. They frequently offer the
only expeditious route to an area of political or military crisis, and even in
situations of less import their use is often an important cost consideration.

As mentioned earlier, the 12-mile territorial sea was gaining currency even
before UNCLOS III. Hence the problem of transit through international straits
is not a product of the current law of the sea negotiations, except to the extent
that those negotiations have accelerated an inevitable problem. What the
negotiations have done is attempt to clarify the rights of straits’ users, particularly
foreign naval units, as well as the rights of straits’ States. Prior to UNCLOS III,
the rule of law applicable to territorial seas—including territorial seas within
straits—was that of innocent passage, i.e., the coastal State cannot interfere with
passage that poses no threat to its “peace, good order, or security.”?

While the principle of innocent passage creates a general expectation of
unimpeded transit through territorial seas, a number of facts qualify the right of
innocent passage for warships. First, submarines must transit on the surface and
show their flag. Second, there is no right of overflight for aircraft. Third, the
coastal State decides when its “peace, good order, or security” has been
threatened and it can take steps to prevent passage that is not innocent.!!
Moreover, the coastal State, if it determines that its security is threatened, can
temporarily suspend the right of innocent passage’? although it cannot suspend
the right of innocent passage through international straits.'> Finally, a small but
growing number of States now require notification or permission as a prerequisite
for innocent passage of foreign warships.'*


618 Index

anti-western perspectives, 382-383
basic obligations ofa state to act, 338
causes, U.N. debate regarding, 391-392, 452
chemical/biological weapon threat, 427-431, 502, 520
colonialism and, 383, 391, 392
defining, 378, 401, 405-406, 449-450
early definitions, 401-402
State terror v. terrorism, 392, 405, 437
UN. definitions, 390, 449
denial of sanctuary, 338
deterrence, 424, 458
distinguishing national liberation movements, 380, 389, 404-405, 449
distinguishing State terror from terrorism, 405
domestic. See Domestic terrorism.
escalation in 1970s, 377
extradition of terrorists. See Extradition practices.
havens for terrorists. See Havens for terrorists.
hijacking. See Hijacking, aerial.
hostage-taking, 338, 339
international law regarding, 402-403,
enforcement, 383, 404
European Convention on the Suppression of Terrorism (1978), 380, 404
framework for responding to State-sponsored terrorism, 457-464
“Host Country” problems, 395-396
jurisdiction issues, 338, 392, 438-440
‘League of Nations Convention for the Prevention and Punishment of Terrorism (1937), 402
U.N. Ad Hoc Committee on Terrorism (1973), 392-393
UN. debate, 383
U.N. developments of the 1970s and 1980s, 387-399
UN. draft Convention Against Taking of Hostage (1979), 404
UN. policy, 378, 382-383
UN. Resolution on Aerial Hijacking or Interference with Civil Air Travel (1970, 394-395
U.N. Resolution on the Definition of Aggression (1975), 389-390
U.N. Resolution: Declaration of Principles of International Law Concerning Friendly Relations
and Cooperation Among States (1970), 389, 390, 402-403
UN. Terrorism Resolution, 394, 395
maritime. See Maritime terrorism.
national policy regarding
Canada’s Temporary Immigration Security Act (1976), 382
USS. Anti-Hijacking Act (1974), 381
USS. Draft Convention on international cooperation (1974), 392
USS. Draft Definition on International Terrorism (1973), 380-381
USS. military response, Blue Light forces, 421- 422
USS. National Security Decision Directive (NSDD), 455, 462-463
U.S. Omnibus Anti-Terrorism Act, 381
U.S. Omnibus Antiterrorist Act (1978), 419
USS. policy regarding, 380-381
nuclear weapon threats, 427
rescue operations, 460
responses, 450-452, 452-453. See also State-sponsored terrorism.
concern for success, proportionality, and discrimination, 453
military, 455-464
sanctuary States. See Havens for terrorists
state-sponsored, See State-sponsored terrorism.
targets, 407-408, 433-447, 451
terrorist aims, 404, 428, 429, 430-431, 449, 450, 451

adventurist terrorism, 392


Rubin 29

other States may have violated their commitments under the United Nations
Charter is legally irrelevant, just as the fact that the criminal law is flouted in
many major cities of the United States is irrelevant to the trial of an accused
criminal. For the same reasons we insist on the integrity of the criminal law
regardless of its violations by others, it is in the interest of the world to insist on
the integrity of the United Nations Charter.

The British reaction to the Argentine use of force was entirely consistent with
this analysis. An appeal was made immediately to the Security Council of the
United Nations, which responded with a formal Resolution demanding that
Argentina withdraw. The only State voting against the Resolution was Panama,
an ironic vote in view of the importance of maintaining the continued legal effect
of the essay in imperial adventure by the United States in 1903 on which Panama
relies for its independence from Colombia.

Instead of immediately acting in support of the United Nations Charter and
the integrity of Latin American borders through the Organization of American
States, the United States took the formal position that it was the friend of both
parties. This choice, to accept the confrontational mode adopted by Argentina
in its search for “justice” as defined by itself in disregard of its treaties, and to
regard the struggle as one between two states only instead of it being Argentina
against the world, seems unaccountable. It could not have been taken by a policy
maker alert to the legal implications of the situation.

The result of this choice in the real world was a confusion of major
proportions. When ultimately the United States expressly supported the British
counteraction in the name of the integrity of the United Nations system, it was
too late to convince our Latin American neighbors, who are all well aware of
the role of the United States in the transaction of 1831-1833, that we were not
acting in support of an old and trusted ally against a Latin American state seeking
“Sustice.” Our position was made to appear politically expedient, not a matter
of principle. The repercussion on our Latin American policy and on the United
Nations and Organization of American States system will be immense, and it is
hard to see how the long-range interests of the United States are served.

Other implications, obvious to international lawyers but apparently over-
looked by policy makers, included the confusion between support of British
military action in support of principle and treaty commitments with support of
British claims to sovereignty in the Falklands/Malvinas Islands. While the British
might have had a stronger legal claim to sovereignty than Argentina, as noted
above a legal approach is not compelled by the law or appropriate to the true
situation. In the absence of detailed argumentation presented by both sides and
evaluated calmly, it was not only beyond the practical capacity of the United
States to determine which claim is the stronger, but whatever our conclusion it
must have been legally unpersuasive to the other side and its allies and might
have inhibited the sort of negotiation needed to end the confrontation. And for


Booth 115

Because of their control of the relevant waterfront, the NATO allies would
be in a strong position relative to the Soviet Union in the event of a more
restrictive maritime regime, though both adversaries would find the restrictions
inconvenient. For reasons to do with the desire to maximize their global maritime
mobility, both superpowers could be expected to resist trends toward restriction.
Naval establishments in particular would be hostile to such developments. But
it has been argued that both major navies could live with a more restrictive regime
and still make their basic contribution to their country’s foreign policies and
wartime strategies. Indeed, the new boundaries and new sensitivities would give
the exponents of naval diplomacy additional opportunities to signal either
displeasure or support. In this respect the Soviet Union would have opportunities
for exploiting what some see as an isolated and vulnerable flank of the alliance.
The details of Soviet naval behavior are already monitored very closely, and this
will undoubtedly increase in the future, for the Western defense community has
a growing corps of teachers and interpreters of naval sign language.

Although Western naval establishments are opposed to a more restrictive LOS
regime, naval interests and overall foreign policy interests are not necessarily
identical. One implication of this paper is that if there are political, economic or
other reasons for Western States moving towards a more restrictive regime, then
the naval situation in northern waters need not inhibit such a move. NATO
naval activity would not be hobbled, and it would have a relative advantage. The
problems facing maritime mobility would lie in areas outside northern waters.
There is a tendency in the West to invest any status quo with moral authority,
and to see change as being for the worse. This is not always so. States can and
do use changes in the LOS as a continuation of political, economic, and strategic
interests. This paper has argued that the Western allies can accept a more
restrictive regime in northern waters without detracting from the value of their
naval sign language.

The ultimate in naval sign language, of course, is the business of strategic
nuclear deterrence. Ensuring that this business is successful will be a more pressing
imperative in the decade ahead than it was in the decade just passed. Growing
fears of instability and imbalance, between the superpowers and regionally, draws
renewed attention to the importance of managing the central balance effectively.
Nothing is more nightmarish than the prospect of a general nuclear barrage: it
would represent the omega of unstrategic competition. Therefore the most
challenging problem for strategists and policymakers in the years ahead is to
develop ideas and programs that promise to strengthen deterrence, restrain arms
competition, and do whatever possible to limit the loss of life in the event of
‘war.

The ASWEEZ scheme is offered as one possibility worth serious considera-
tion, difficult though it might presently be to conceive and implement. If it could
be agreed, ASWEEZ promises to strengthen deterrence and slow down an


390 Readings on International Law

on Friendly Relations, reflects its Committee’s compromise on the inclusion of
terroristic activities within the concept of aggression in terms of “sending” by or
on behalf of a State of armed bands and other irregular groups usually included
within the category of terrorists for carrying out acts of armed force. This
prohibition is, one should stress, limited to “sending.” Terms such as “organiz-
ing,” “encouraging,” “instigating,” or “participating in” and, in addition, “fo-
ment,” “finance,” “incite” or “tolerate,” all to be found in the Declaration of
Friendly Relations, are missing from the Definition of Aggression. Also, a State
becomes guilty of aggressive conduct when it puts its territory “at the disposal
of” another State. But this latter conduct is narrowed by the limitation of the
beneficiaries of such a disposal to States, not private individuals. Accordingly it
would not be germane to many instances of terrorism.

In response to the General Assembly’s resolution on its 1971 Report,® and
especially the favorable reception given to paragraphs 133 and 134 thereof,’ the
International Law Commission produced in 1973 the draft articles that were
more or less endorsed by the General Assembly through their adoption in a
Resolution® and became the Convention on the Prevention and Punishment of
Crimes against International Protected Persons, Including Diplomatic Agents.
This Convention entered into force on 20 February 1977.” Its thrust is to ensure
that persons who commit, or attempt or threaten to commit, or participate as
accomplices in the commission of such crimes of violence as murder, kidnapping
or other attack on the person or liberty of heads of States or governments, or
diplomatic or other representatives, or attack official premises or private accom-
modation or means of transport of such persons, shall be either prosecuted or
extradited “without exception whatsoever and without undue delay” (Ar-
ticle 7).!°

The history of the General Assembly’s adoption of this Convention and its
recommendation that the member States ratify it is of interest. Despite the
widespread feeling that such a convention was needed, a considerable number
of developing countries was very disappointed by the failure of the drafters to
include exculpatory provisions for those asserting “the legitimate right of
self-determination” and might well have prevented the passage of the Resolution
recommending that member States should adopt the Convention which the
General Assembly had before it.'' A compromise was reached when the
accompanying draft Resolution, which included a paragraph condoning such
acts, was amended by the addition of a paragraph instructing the Secretary
General always to publish the Resolution together with the Convention.” The
paragraph on the right of self-determination was as follows:

4. Recognizes also that the provisions of the annexed Convention could not in
any way prejudice the exercise of the legitimate right to self-determination and
independence, in accordance with the purposes and principles of the Charter of
the United Nations and the Declaration on Principles of International Law


Booth 99

of aggressive determination will have their part. Although the circumstances were
peculiar, it should be remembered that Iceland gained considerable diplomatic
leverage by the vigorous use of its handful of gunboats during its mid-1970s
fishing dispute with Britain. Naval forces will have an important role in the
process of regime change. The process will be neither speedy nor free of
problems, and naval forces will help determine the resolution of jurisdictional
questions, and the development of particular norms.

The changes in naval strategy and technology that have been and are occurring
in northern waters are for the most part the result of factors other than changes
in the law of the sea. They are much more the result of the interplay between
domestic politics in the countries concerned, the momentum of technical
innovation, and the dialectic of the strategic relationship with the adversary. But
the law of the sea does have some direct implications for the area as a source of
conflict, both within NATO and between various NATO allies and the Soviet
Union.

A major regime change can always be expected to cause disputes and conflicts,
especially where security and resource issues are involved. Disputes in northern
waters can be expected over boundaries and conflicting ocean use, but among
the NATO allies it is unlikely that there will be any dispute serious enough to
involve military manifestations, even at a low level. Such disputes as might arise
should be amenable to settlement by other means: they have several charac-
teristics that lead one to expect that they will be settled in an orderly fashion?
However, if any dispute should become prolonged, it could help exacerbate
outstanding problems and so contribute to a loosening of the bonds of the
alliance, Disagreements over fishing in the North Sea and between the United
States and Canada are the most relevant disputes at present, but they have no
strategic significance.’ The incentives for agreement among the allies are strong,
but experience shows that this is never a guarantee that trouble will be avoided.
Among other things, domestic pressures can upset rational foreign policy
calculations.

Not all disputes in the region are free of danger. Between one NATO ally
and the Soviet Union there are two worrying issues, Svalbard and the delimitation
of the Barents Sea. The two issues prompt some different responses among the
allies, but both derive their strategic significance from the importance of the
Barents Sea for Soviet security. The origins and character of the issues have been
thoroughly discussed elsewhere, and do not need repeating. It is merely necessary
to note that they have three main military features. In the first place, Soviet naval
interests (especially the desire to minimize external involvement across the
traffic-ways of the Northern Fleet) will significantly affect the Soviet stance on
all jurisdictional questions in the area. If the past is any guide, security issues are
those on which the Soviet Union is most obdurate and highly sensitive. Secondly,
it is thought unlikely that Svalbard would be the target of bolt-from-the-blue




Aceves 257

and its non-polemic atmosphere.” The State Department shared Rybakov’s view
“that the LOS bilateral consultative mechanism [had] proven itself useful in
problem solving over the past two years and is the best forum in which to
continue our mutual search for a satisfactory solution.”© The negotiations were
concluded in August 1989 when the U.S. and Soviet negotiators prepared a joint
statement setting out a mutually acceptable interpretation of the rules of inter-
national law applying to innocent passage throughout the territorial sea.

On 23 September 1989 at Jackson Hole, Wyoming, Secretary of State James
Baker and Soviet Foreign Minister Eduard Shevardnadze signed the Uniform
Interpretation of Rules of International Law Governing Innocent Passage.
According to the Joint Statement that accompanied the Uniform Interpretation,
both governments recognized that the provisions of the 1982 LOS Convention
relating to traditional uses of the oceans “generally constitute international law
and practice and balance fairly the interests of all States.””° Thus, the United
States and the Soviet Union agreed to take the necessary steps to put their internal
laws and regulations in conformance with their agreement. The Uniform
Interpretation provided:

1, The relevant rules of international law governing innocent passage of ships in
the territorial sea are stated in the 1982 United Nations Convention on the Law
of the Sea (Convention of 1982), particularly in Part II, Section 3.

2, All ships, including warships, regardless of cargo, armament or means of
propulsion, enjoy the right of innocent passage through the territorial sea in
accordance with international law, for which neither prior notification not
authorization is required.

3. Article 19 of the Convention of 1982 sets out in paragraph 2 an exhaustive
list of activities that would render passage not innocent. A ship passing through
the territorial sea that does not engage in any of these activities is in innocent
passage.

4. A coastal State which questions whether the particular passage of a ship
through its territorial sea is innocent shall inform the ship of the reason why it
questions the innocence of the passage, and provide the ship an opportunity to
clarify its intentions or correct its conduct in a reasonably short period of time.

5. Ships exercising the right of innocent passage shall comply with all laws and
regulations of the coastal State adopted in conformity with relevant rules of
international law as reflected in Articles 21, 22, 23 and 25 of the Convention of
1982. These include the laws and regulations requiring ships exercising the right
of innocent passage through its territorial sea to use such sea lanes and traffic
separation schemes as it may prescribe where needed to protect safety of navigation.
In areas where no such sea lanes or traffic separation schemes have been prescribed,
ships nevertheless enjoy the right of innocent passage.

6. Such laws and regulation of the coastal State may not have the practical effect
of denying or impairing the exercise of the right of innocent passage as set forth
in Article 24 of the Convention of 1982.

7. If a warship engages in conduct which violates such laws or regulations or
renders its passage not innocent and does not take corrective action upon request,


108 Readings on International Law

can expect that they will be exploited in northern waters, and for three main
reasons. First, the hardware is in existence, and there will be an impulse to find
employment for expensive assets. Secondly, it is unlikely that there will be any
basic change in the NATO-Warsaw Pact confrontation in the foreseeable future.
The need will remain for the countries involved to reassure allies, and to deter
or coerce adversaries by military means. Finally, signaling by military means is
particularly important and subtle in the North Atlantic region. It has a very
receptive audience.

The signals of naval diplomacy are already carefully scrutinized. The Soviet
Union has for over 30 years been sensitive to NATO naval activity, and recently
Soviet naval behavior has received the same attention in the West. So far the
Soviet Navy has had limited diplomatic scope in the North Atlantic but, within
limits, its general-purpose naval forces have been an active instrument of political
influence in the region.'° This tendency would be increased rather than decreased
by creeping jurisdiction. The Soviet Union would use naval diplomacy to
maintain rights of presence against the development of restrictive norms. In
addition, the politicostrategic importance of the area, together with the new
boundaries, will give the Soviet Navy the opportunity to send signals with high
political visibility (but also with the opportunity to withdraw with relative ease).
There have been harbingers of such possibilities. The new sensitivity toward
maritime affairs, and also the scope for manipulating this sensitivity by displays
of “power in evidence,” has been seen in the anxiety shown by North Sea states
at the presence and evident interest of Soviet warships in oil rigs and other
installations. Soviet behavior has been legal, but it has raised Western tempera-
tures. Related Soviet behavior can be expected in future, for so much of the
international politics of the region is conducted by the manipulation of
psychological processes. Discussion of the international politics of the region is
characterized by words and phrases such as deterrence, reassurance, looming power,
military overhang, provocation, and confidence building. It is a region in which the
vocabulary of psychostrategic confrontation can be fully employed: it is, after all,
the home of the much used and often criticized, but well understood concept
of “finlandization,” the idea of political accommodation to predominant military
power. In such an area, new boundaries, and the significance of crossing them
for either supportive or coercive purposes, will add to the vocabulary of
psychostrategic signaling.

There is developing what Hedley Bull has called “a maritime territorial
imperative,” involving feelings about the sea that are much closer to those that
nations have previously had only about their sovereignty over the land."
Nevertheless, the new boundaries at sea will obviously remain less clear, less
immediately sensitive and further from national nerve-endings than those on
land. For this reason, nations will never be as sensitive to warships passing through
their seas as they always have been, for obvious reasons, to armies tramping over


196 Readings on International Law

foreign warships in the Motherland’s territorial sea. This continued Soviet
insistence upon coastline principles at home and navigationalist principles abroad
carries with it the potential for confrontation that does not bode well for the
international regime of the oceans.

Lieutenant Commander Neubauer was the Assistant Staff Judge Advocate for Commander,
Naval Sea Systems Command at the time this article was first published.

Notes

1, Opened for signature 10 December 1982, reprinted in United Nations Conference on the Law of the
‘Sea, United Nations Convention on the Law of the Sea, U.N. pub. sales no. E83 V.5 (1983).

2. US. President, Statement ot United States Ocean Policy, Weekly Compilation of Presidential Documents, no.
383 (10 March 1983).

3. Id.

4, Sorokin, Innocent Passage of Warships Through Territorial Waters, Morskoi sbomik, no. 3 (1986).

5. Id, at 75.

6. Ia.

7. Vedomosti S.S.S.R., no. 48, 1982, item 891, in COLLECTED LEGISLATION OF THE USSR. AND
CONSTITUENT UNION REPUBLICS (Butler trans, 1979), and BUTLER, THE USSR, EASTERN EUROPE,
AND THE DEVELOPMENT OF THE LAW OF THE SEA (1983); for a detailed analysis of Soviet law relating to
innocent passage in the territorial sea, see William E. Butler, Innocent Passage and the 1982 Convention: The
Influence of Soviet Law and Policy, 81 Am. J. Int'l L. 331 (1987); for an examination of the development of Soviet
law ofthe sea policy, including innocent passage in the territorial sea, see Allison, The Soviet Union and UNCLOS
III: Pragmatism and Policy Evolution, 16 Ocean Dev. & Int'l L. 109 (1986).

8 24 LL.M. 1715, 1717 (1985).

9. USS. Treaties, etc., “Convention on the Territorial Sea and the Contiguous Zone,” done 29 April
1958, v. 1 IST 1606, TIAS 5639.

10. United Nations Third Conference on the Law of the Sea, Vol. 3, U.N. Doc. A/C.62/C.2/L.26, UN.
pub. sales no. E.75.V.5 (1975), at 203,

11. United Nations Third Conference on the Law of the Sea, Vol. 2, U.N. pub. sales no. E.75.V.4 (1975),
p. 110.

12. Id, at 290.

13, 1982 United Nations Convention on the Law of the Sea, Article 17, U.N. pub. sales no. E.83.V.5
(1983).

14. Moore, The Regime of Straits and the Third United Nations Conference on the Law of the Sea, 74 Am. J.
Int'l L. 77, 79 (1980).



Booth 113

SSBNs in a counterforce role (by operating them at short range against time-sen-
sitive targets).

In addition to these points of difference with the MccGwire scheme, some
common advantages are shared. Both schemes aim at “confidence-building.” If
SSBNs were to be kept in home waters, and especially if they had no capability
to go further, this would limit their potential as first-strike weapons. In the sense
that strategic ASW is a first line of defense (or possibly offense), the pulling back
of these forces should contribute to enhanced confidence in one’s own retaliatory
forces. This is especially important in the years ahead, when nuclear nerves are
likely to be less calm than in the last decade. Given their fear of the spillover of
a superpower conflict, this should be some comfort to the Nordic countries.
Both schemes promise to stop arms competition and enhance mutual deterrence.

As with other arms control schemes, ASWEEZ faces important problems and
obstacles. ASWEEZ would give a big boost to creeping jurisdiction. The
international significance of the EEZ would be greatly enhanced: the super-
powers would appear to be conceding the important principle of keeping their
warships out of the EEZs of other countries. In practice, ASW forces would
probably have to be defined as all adversary warships (a concept that could cause
some definitional problems). Clearly, scientific research vessels could covertly
engage in ASW. Definition and regulation would have to be strict. But this might
be a problem time will solve, as creeping jurisdiction leads to increasing state
control over all “research” activities in adjacent EEZs. Verification would be a
difficult problem. As with SALT, reliance would have to be placed on national
means and there would be scope for cheating. In the event of the latter, the only
sanction, as with other arms control treaties would be the threat of abrogation.
Uncertainties about the verification of subsurface activity would be a strong
inhibition, especially as governments would be reluctant to reveal in any detail
the quality of their ASW detection. As with other arms control schemes,
ASWEEZ might rechannel arms competition into other areas. In particular,
ASW efforts would be channeled into space. There would be opposition from
those who would argue on strategic grounds (or from vested interests) against
concentrating strategic strike at sea and, within that, concentrating the SSBN
force in smaller areas. Finally, there would be criticism from those opposing any
arms control that threatens to reduce one’s ability to engage in damage limitation,
as ASWEEZ would degrade strategic ASW in the event of war. If the present
counterforce trend continues, such an argument will have powerful backers.

At present, the prospects for ASWEEZ are very poor. But as the costs of
submarines escalate, and as steady progress continues with the multidirectional
efforts at ASW, the attractiveness of SSBN sanctuaries will grow. When that time
arrives the Soviet Union will no longer need to send any SSBNs out into the
Atlantic in order to hit their targets. It might also be a time when governments
in an ameliorating international atmosphere are looking for signals of reassurance.




Chapter 16

America’s Maritime Boundary
With the Soviet Union*

John H. McNeill

D=* last year’s Washington Summit meetings between President Bush
and Soviet President Gorbachev, a historic agreement was signed by
which, for the first time, the United States and the Soviet Union registered their
mutual accord on a maritime boundary.!

This new agreement was signed on 1 June 1990 by Secretary of State Baker
and Soviet Foreign Minister Shevardnadze, and both signatories have been fully
applying its provisions since 15 June 1990.”

Accordingly, the two nations have now established a maritime boundary for
all purposes. The new boundary extends from the North Pacific Ocean through
the Bering Sea and Straits into the Chukchi Sea, and terminates in the Arctic
Ocean after traversing a distance of some 1,800 nautical miles, making this the
world’s longest maritime border

The successful conclusion of negotiations between the two parties was roughly
contemporaneous with the widening of contacts and cooperation between them
in the region; examples of this are the recent agreement on cooperation in
maritime search and rescue, the agreement establishing a Joint Regional Com-
mission for the Bering Straits area, and the agreement concerning mutual visits
by inhabitants of the Bering Straits region.* However, the maritime boundary
agreement, unlike the others, was brought to fruition as the result of discussions
between the neighboring governments that began almost ten years ago—during
the difficult years of the Brezhnev era.

As every American schoolchild knows, Alaska was purchased by the United
States from Czar Alexander II in 1867. “Seward’s Folly,” as the $7,200,000
acquisition was once derisively known, has long since been recognized as a
remarkable coup by the United States. What is not often remembered, however,
is that the 1867 Convention of Cession itself contained no provisions relating to
establishment of a boundary per se. Instead, that agreement explicitly provided
only for the cession by Russia to the United States of all territory and dominion
possessed by the Czar “on the continent of America and in the adjacent islands,”

* Reprinted from the Naval War College Review Summer 1991.


Roach 485

ROE are to be standardized for use by all major commands to facilitate movement
between those commands. The Joint Operations Planning System (JOPS)
(volume I) provides a format for the ROE appendix to the operations annex of
all unified and specified commanders’ operations plans.

Compilation of ROE

The JSCP also requires the unified and specified commanders and COM-
RDJTF to compile all rules (and changes thereto) for their commands in formats
such as instructions, letters, operation plans, or messages. The compilations are
to be prepared no later than 1 October each year and provided to the JCS, Chiefs
of the Services, USCincRed, CincSac, the commanders of other affected unified
and specified commands and COMRDJTF if affected, and to commanders of
other unified and specified commands or COMRDJTF upon request if unaf-
fected. A typical unified commander’s compilation would list the commander's
central document promulgating his basic peacetime ROE, plus any special ROE
contained in his operations plans,

Review of Compilation of ROE

The JSCP provides that the JCS will assure appropriate Joint Staff and Service
review of such compilations and changes thereto, including a legal review by the
Services, to assure consistency of the ROE with applicable domestic and
international law, including the law of armed conflict. This can occur, obviously,
only when such compilations are submitted, although this has not always been
done.

Structure of ROE

ROE should be structured in accordance with JOPS, and with two distinct
ideas in mind. Basic peacetime ROE, which are to serve as an unambiguous
guide for the commander in the conduct of his mission, should be declarative,
that is, written as action which define both the conditions and limits of that
combat, Additionally, there should be available a series of supplemental measures
that may be implemented to expand the authority of, or relax the restrictions on,
the commander when the situation exceeds the bounds of the general case.'®

Content of ROE

Depending on the level of the promulgating commander and the con-
templated circumstances of application, ROE should contain appropriately
generalized or specific guidance on the employment of systems and platforms for


208 Readings on International Law

such vague “security” interests lend themselves to abuses which could significant-
ly erode traditional high-seas freedom if allowed to go unchecked.

Other nonhostilities-related sea defense zones are peacetime geographic
demarcations which are primarily designed to provide a division of military effort
between contiguous allies to meet armed attacks. In other words, they establish
areas of anticipated naval operations or areas of respective responsibility in the
event of hostilities and are contingent upon such an occurrence.”! In contrast,
the North Korean east and west coast military boundary zones go far beyond this
in attempting to enforce routine restrictions which should not be permitted in
peacetime, even in an “era of violent peace.”

The situation in this instance is further aggravated by the precarious status of
the Northwest Islands. As previously indicated, although these islands are under
South Korean administration, and the Armistice Agreement specifically prohibits
the blockade, by sea or air, of the areas under the control of the other side, no
sea lanes or aerial routes were provided to reach these outposts which lie well
within 12 miles of the North Korean coast.

Analysis of U.S. Options

General Considerations. It is unclear under international law whether diplomatic
protests alone are sufficient to thwart the unilateral actions of a coastal nation
attempting to encroach upon the rights of all maritime nations to the unencum-
bered usage of the high seas. These troubling “creeping” claims through which
nations attempted to dramatically expand their territorial seas, or to exercise
previously unrecognized sovereign rights in offshore regions, were a key impetus
to the convening of the conference which ultimately produced the 1982 LOS
Convention. The drafters of the Convention sought to legitimize and codify the
growing international consensus in favor of expanding territorial seas from the
traditional “cannon shot range” of 3 miles to 12 miles, but to cap the gradual
drift seaward at this limit.

Likewise, the provision ofa contiguous zone extending an additional 12 miles
beyond the seaward edge of the territorial sea provided recognition of limited
law enforcement and territorial integrity concerns, while balancing these with
the traditional high-seas freedom of navigation and overflight in those waters.
Finally, the provisions providing for the establishment of an exclusive economic
zone permitted States to exploit and capture maritime resources within an
expansive area, extending as far as 200 nautical miles from the baseline. Prior to
the development of this novel concept, the only legal mechanism available to
establish such control was the attempted exercise of the sovereignty associated
with territorial seas by extending these claims seaward. The carefully considered
EEZ regime again attempted to achieve the delicate balance between the coastal


Roach 487

and the military necessity for immediately scrambling and using the F-4s or
ROKAF assets to halt the procession to Wonson.

Further, there does not appear to be anywhere enough training in the use of
ROE or enough contingency planning for seeking additional or relaxed
authority. The tactical training commands and the PCO/PXO schools must
undertake on an urgent basis to teach ROE, particularly the new peacetime ROE
and their mechanism for changing ROE.

Another problem with general ROE that encompass a variety of situations in
which our forces may find themselves in the discharge of their political tasks, is
the difficulty of providing adequate guidance for the contingencies. Frequently,
this problem is sidestepped in planning—until the nature of the crisis is
analyzed—by the expedient of including in the general ROE references to
further guidance that will be received when the situation changes.

This approach reflects a widespread assumption that the theory of graduated
escalation will allow the leisurely evolution of specific ROE by the ordinary
process of governmental policy-making, by committee. Yet the suddenness with
which political situations erupt means we may not have the luxury of time to
formulate a reasoned set of ROE.

In the absence of precise thinking and sufficient theoretical preparation, ROE
are not likely to express clearly the detailed controls that contemporary political
constraints require of military conduct. Such vagueness and imprecision in the
ROE can only compound the dangers of uncontrolled escalation. The Navy, for
example, is often required to deploy. units or fleets for the purpose of catalytic
force without any clear objectives in mind, and in the hope that the Navy will
do something to resolve the situation and nothing to aggravate it. Such assign-
ments should be undertaken with precise ROE, in pursuance of a definite and
coherent policy; precise ROE are, however, impossible to write when the
government has not made up its mind—and this is usually the case in any catalytic
use of seapower.

‘When developing specific operations, planners should anticipate what addi-
tional ROE will be needed in the event of changed circumstances, particularly
if they run into increasingly tense or hostile situations—and then ask for revised
or additional ROE ahead of time, on a contingency basis. That way, there will
be time to figure out what additional ROE measures are needed and are best;
time to get approval for them; and time to use them to tactical advantage.”

Wartime ROE

Some feel that wartime ROE (WROE) are simple to prepare and therefore
need not be prepared in advance in peacetime. Some go so far as to say that the
service law of war manuals” are the WROE. Anyone who served in Vietnam
or who has read the declassified portion of the WROE used in that conflict”


Robertson 543

a white flag displayed by an individual signifies that the individual desires to
surrender; the opposing force is required to accept that surrender but is not
required to cease firing at other members of the unit who have not indicated a
similar intent.

The board concluded that the CO’s decision, made in the fog of battle and
under difficult conditions at the beginning of combat operations when the
attitude of enemy forces toward surrender was unknown, was tactically sound
and did not violate the law of armed conflict. It found further, however, that he
should have investigated further and discussed his evaluation of the white flags
with the XO and key officers, that he should have reported this significant event
to his superiors, and that his failure to take these actions represented a serious
lapse of judgement. An endorsing senior also faulted other officers of the
command who had direct knowledge of the display of white flags for failing to
come forward with their advice and concerns.

The foregoing narrative, greatly simplified in the interest of brevity, captures
the essence of several dilemmas that may confront members of the armed forces
at any level engaged in armed conflict. What are the acceptable “indicia,” or
indicators, that an enemy is attempting to surrender? What are the obligations
ofan officer in command upon receiving such indicia from an enemy? And what
are his obligations if the signs of surrender are ambiguous or mixed? It is the
purpose of this essay to explore these questions.

Some Historical Background

Although the wartime usages of prehistoric peoples are to a large extent lost
in the mists of antiquity, it is nevertheless asserted by some scholars that even
among the most primitive societies, rudimentary group mores governed the
waging of war between families, villages, or tribes. As stated by Quincy Wright
in his scholarly treatise, A Study of War, “Illustration can be found in the war
practices of primitive peoples of the various types of international rules of war
known at the present time: rules distinguishing types of enemies; rules defining
the circumstances, formalities, and authority for beginning and ending wars; rules
describing limitations of persons, time, place, and methods of its conduct; and
even rules outlawing war altogether.”’ Among the more advanced primitive
societies, “women and children or even men captured from the enemy [were]
spared, usually, to be made slaves.””

Among the written records of practices of early civilizations on the treatment
of those who had surrendered or were hors de combat are Biblical accounts of
Joshua’s conquest of Jericho, in which the Israelites “utterly destroyed all that
was in the city, both man and woman, young and old, and sheep and ass, with
the edge of the sword.” By contrast, in other campaigns, although all conquered
males were slain, women and children might be spared.’ Professor Leslie Green


Gilchrist 137

Stabilization Through Separation of Forces. The high speed, accuracy, and
lethality of modern naval surface-to-surface missiles greatly complicates the
interaction between opposing surface combatants in close proximity during
periods of crisis. As tensions escalate, it becomes increasingly likely that minor
provocations or strictly defensive actions will be interpreted by the opposing
tactical commander as an indication of an imminent attack, thereby triggering a
defensive preemptive strike on his part. The initiation of hostilities, then, would
not be controlled by the national command authorities of either side, but would
result from the paranoia engendered by two opposing weapon systems operating
within close range of each other in a volatile, edge-of-war situation. A cordon
sanitaire, by separating opposing forces at sea, would help stabilize tensions by
reducing the chance of hostilities commencing inadvertently through
misinterpretation of actions by an opposing ship.

Drawbacks and Dangers of Cordon Sanitaire

It Invites Preemption. Argument Against Cordon Sanitaire: The declaration of
a cordon sanitaire may be viewed as an ultimatum by the Soviet Union, analogous
to the U.S. quarantine during the Cuban Missile Crisis. It is generally acknow-
ledged that the Soviet capitulation to the demands of the United States at that
time contributed to the downfall of Premier Khrushchev and accelerated the
tremendous growth of the Soviet Navy. Undoubtedly the Soviet leadership
would find anything resembling an ultimatum to vacate a cordon sanitaire around
a carrier battle group most distasteful, and would agree to observe such a zone
only if it was in their own best interest or if no reasonable alternative was available.
The potential loss of face could be devastating for the Soviet oligarchy, both
internationally and domestically. Backed into a corner by a cordon sanitaire
ultimatum, Soviet leaders would unquestionably consider very seriously launch-
ing a preemptive attack on the battle group sometime before the cordon sanitaire
became effective, while accurate targeting information remained available and
missile platforms were within range.

Counter Argument: Even if the danger is very great that the declaration of a
cordon sanitaire might provoke the preemptive attack it was designed to prevent,
at some point, as tensions rise to the brink of war, cordon sanitaire could still be
militarily attractive. If intelligence revealed a massing of Soviet naval units which
could be the prelude to a coordinated strike, the declaration of a cordon sanitaire
to take effect before the majority of the strike platforms were within missile range
of the battle groups could force the Soviets to launch a less-than-optimum strike
or else abide by the cordon sanitaire. Though a peak defensive posture could not
reasonably be maintained for the days or weeks that a period of high tensions
could last, the battle group could maintain peak defensive readiness during the
24 hours or so between declaration and the time the cordon sanitaire went into


Gilchrist 141

operate partially or completely outside the cordon area if needed or desired. With
cooperative cloud cover, deceptive formations, and EMCON, the battle group
could possibly elude SOSS sensors for several days. It seems obvious, then, that
while providing the Soviets with battle group PIM information is a significant
drawback of cordon sanitaire, it would still be much better than tolerating a
tattletale within the battle group formations. False PIM information, coupled
with other deceptive tactics, could be very helpful to the United States in certain
situations.

Reciprocity. Argument Against Cordon Sanitaire: As discussed in a preceding
section, to soften the impact of the cordon sanitaire declaration the United States
would have to be willing to abide by similar restrictions around Soviet task
groups, or restrict in some other manner the movements of its naval units. The
less unilateral and arbitrary the cordon sanitaire declaration is, the greater are its
chances of success. The loss of intelligence to the United States caused by abiding
by a Soviet cordon sanitaire could be important. Also, the Soviets could
conceivably declare a large cordon sanitaire around many small surface groups
in an effort to limit U.S. access to key areas of the high seas. For example, multiple
Soviet cordons sanitaire in the North Atlantic approaches to Europe could delay
the arrival of critical military supplies and reinforcements there. Depending on
the specific scenario, there are many relatively restricted bodies of water where
both navies would legitimately want to operate—for instance, the Eastern
Mediterranean or Northern Arabian Sea. The existence of cordon sanitaire on
both sides in such restricted, yet important areas would probably require some
type of partitioning or demilitarized zone. Such an arrangement would be
difficult to negotiate during times of crisis, and even under the best of situations
would restrict to some degree U.S. movements within a strategic area.

Another related danger is the possible proliferation of the use of cordon
sanitaire beyond NATO and the Warsaw Pact. Its widespread use by small Third
World nations, following a precedent set by the superpowers, could severely
hamper free navigation, particularly along littorals.

Counter Arguments: The loss of intelligence to the United States caused by
abiding by a Soviet cordon sanitaire, while significant, would probably not be
critical. U.S. satellite and standoff aircraft sensors are generally acknowledged to
be superior to those of the Soviet Union. Also, since the U.S. objective is not a
preemptive strike, it could presumably absorb this degradation of intelligence
capability much more readily that the Soviets.

Careful planning should be done in devising the initial cordon sanitaire area
to ensure that Soviet naval or air units would not be totally blocked by the
cordoned zone from access to their legitimate areas of concern. Such a precedent
in the initial U.S. declaration, together with careful enunciation of the limits to
which the United States would abide by Soviet cordons, would reduce the


Rhys-Jones 573

Commander Rhys-Jones was the Royal Navy Exchange Officer on the Faculty of the
Operations Department at the U.S. Naval War College from 1986 to 1988.

Notes

1, Secretary of Defense Frank C, Carlucci told the Senate Armed Service Committee on 25 January 1988:
“The INF Treaty preserves intact NATO’s strategy of flexible response as a credible framework for deterring
aggression and intimidation.”

2. See forinstance Hine, The Impact of Arms Control on the Balance of Nuclear and Conventional Forces, RUSI
8-12 (December 1987).

3, Nitze, Beyond the Summit: Next Steps in Arms Control, Department of State Bulletin 81-84 (February
1988).

4, Seefor instance U.S. Secretary of State George Shultz’ testimony before the Senate Foreign Relations
Committee (27 February 1988).

5. For a comprehensive assessment see Adam, Ways to Verify the US-Soviet Arms Pact, IEEE Spectrum
30-34 (February 1988).

6. Owen, formerly U.K. Secretary of State for Foreign Affairs, may be an honorable exception. See his
Moscow's Nuclear Endgame, The Times (London), 29 January 19888, p. 14. ;

7. Asymmetry should not be confused with the current vogue term “competitive strategy.” Whereas
competitive strategies claim to address only enemy weaknesses, an asymmetric strategy may more properly
address his strengths.

8. A recent warning was made by General John R. Galvin, USA, in an ABC News interview on 2 March
1988,

9. See Joffe, Germany's Singular Condition, The Times (London), 26 February 1988, p. 14.

10, SOKOLOVSKI, SOVIET MILITARY STRATEGY 305 (1963).

11, Soviet thinking is pethaps best illustrated by Marshal Malinovskii’s remarks to the 22nd Congress of
the CPSU. “[the] main problem is considered to be the working out of means for reliably repelling a nuclear
surprise attack and breaking up the aggressive plans of the enemy by dealing him a crushing blow in time.”
Quoted in Goure, Notes on the second edition of Sokolovskit, RAND memo RM 3972, 1964, at 65.

12, For an unclassified summary of Soviet operational thought see Hines and Peterson, The Soviet
Conventional Offensive in Europe, Military Review 1-19 (April 1984). For a description of the Soviet Air
Operation, see Peterson and Clark, Soviet Air and Antiair Operations, Air University Review 36-54 (March-April
1985); see also MCCGWIRE, MILITARY OBJECTIVES IN SOVIET FOREIGN POLICY 4, 67-89 (1987).

13, See Diplomacy of Insolence, The Times (London), 23 January 1988, p. 11.



322 Readings on International Law

thirty Grenadians armed with Soviet AK-47 rifles kicked in the door of his house
and held him and other students against their wills for three hours. Jeff Geller,
another St. George’s student, said, “We thought we could be potential hostages.
We just wanted to get out, if we could.”* Charles Modica, the Chancellor of St.
George’s Medical School, indicated on 25 October that he did not believe the
students were in danger. Modica was in New York at the time of his assessment.
He later rescinded his statement after a briefing at the State Department. Why?
Had he seen the so-called “hostage plan,” or had he made a deal with the State
Department to change his tune in exchange for future security on his Caribbean
investment?

Those critics who would have us believe that the Americans on Grenada were
never in danger, or that Americans on the island were endangered because of
the invasion, should review the history of Grenada from 1979, paying particular
attention to events immediately preceding the invasion. Of special interest is the
first decree of the Austin Regime, which took power on 13 October and six
days later brutally executed the former Prime Minister, Maurice Bishop, and
members of his cabinet, along with numerous innocent civilians. Austin imposed
a 24-hour curfew and announced over the island’s radio that violators would be
shot on sight. Americans on the island of Grenada were in grave and imminent
danger, whether they knew it or not. In response to this situation, Gerhard von
Glahn makes the point, “If the citizens of a state are mistreated in another state,
the former, it has been asserted, possesses a lawful right to intervene on behalf of
its citizens after all available peaceful remedies have been exhausted. Despite
much opposing argument by certain writers, the practice of states supports this
right as yet.”>

The United States, its citizens being threatened and mistreated, and facing the
challenge of “internal subversion and indirect aggression, with few [and no
reliable] means short of force to counter such activities,”® invaded Grenada and
rescued the Americans on the island. There was no legitimate government to
speak of or to speak to.

The second justification that President Reagan gave for the invasion of
Grenada was “to forestall further chaos.” Granted, “law cannot create order in
international relations, but a minimum degree of order can greatly increase the
effectiveness of international law.”” Once the United States and her Caribbean
partners established order in Grenada, they could “assist in the restoration of the
conditions of law and of governmental institutions to the island”—President
Reagan’s third reason for invading Grenada.

President Reagan did not choose to defend his decision to invade Grenada by
applying the often used principles of invitational or humanitarian intervention.
He might easily have claimed either of these justifications, and there are those
who defend Reagan’s decision based upon Scoon’s invitation to the U.S.—trans-
mitted through the Organization of Eastern Caribbean States by way of the Prime


Hurwitz 431

excellent short-term bargaining power against a resistant government. Even such
stalwarts as Margaret Thatcher, Menachem Begin, or Ronald Reagan would find
it difficult to resist terrorist demands after 1,000 to 2,000 of their citizens had
died in an initial incident.

On the other hand, the terrorist organization that used C/B agents in a mass
casualty attack would take a tremendous risk of alienating key friendly and neutral
constituencies, Years of patiently cultivating the support of certain groups might
be sacrificed in a few moments. World opinion might be quite hostile in the
aftermath of this “heinous crime.” Even the adversary government might harden
its policies after the initial threat had failed. It is this risk that a C/B attack might
backfire and cause perverse results that has so far limited the use of these weapons
by terrorists,

However, the fact that terrorists have not paid much attention to C/B
‘weapons in the past does not assure that they will not do so in the future. The
ready availability of C/B agents that can be used in an attack means that, for a
major incident to occur, only one terrorist group at any single point in time needs
to find that such a weapon meets its requirements. As mentioned earlier, groups
that might find C/B weapons to their liking include radical groups opposed to
any accommodation with the enemy or mainstream groups that want to kill
thousands at a prestigious enemy military or political facility. While the question
of whether terrorists will use C/B weapons in a mass casualty attack is un-
known—and perhaps unknowable—this author believes that the odds are
perhaps even or slightly higher that an attack will eventually occur. Established
governments and security agencies would do well to recognize this threat and
make plans to deal with it before it actually materializes.

Elliott Hurwitz was serving as a Senior Analyst of Ketron, Inc., at the time this article was first
published.

Notes

1, LAPIERRE & COLLINS, THE FIFTH HORSEMAN (1980); Jenkins, Nucear Terrorism and Its Conse-
quences, Social Science and Modern Society 5 (July/August 1980). Some of the points made below on potential
terrorist goals and actions have also been taken from this article.

2, Sources that discuss the potential for C/B terrorism include: Mullen, The Clandestine Use of Chemical
or Biological Weapons, International Association of Chiefs of Police (1978); Mullen covers much of the same
ground in his article, Mass Destruction and Terrorism, J. Int'l A€E. 63-89; (Spring/Summer 1978), KUPPERMAN
& TRENT, TERRORISM, THREAT, REALITY, RESPONSE (1979). Pages 62-68 deal with potential use of
C/B weapons,

3, Mullen, supra n.2 at 10,

4, American Type Culture Collection, Rockville, Md.: Ordering Information.

5. KUPPERMAN & TRENT, supra n.2 at 361.

6. Mullen, supra n.2 at 16; KUPPERMAN & TRENT, supra n.2 at 361.


Rose 509

sophistication, so too will the subtlety and scope of covert biological weapons.
If (when) a devastating new strain of wheat rust or pesticide-resistant fruit fly or
AIDS-like virus pops up in America’s future, will we be able to determine
whether the source is a natural mutation or a genetic manipulation concocted
by an adversary? Granted, these hypothetical examples seem more a product of
science fiction than reality; however, judging from advances made in genetic
engineering in just over a decade, science appears to be eclipsing fiction more

rapidly than expected.
Quo Vadis?

As the preceding discussion suggests, a number of factors—including regional
conflicts, Soviet capabilities and the revolution in biotechnology—are converg-
ing to usher in an era of soft but deadly weapons. This threat, which has grave
implications for American security, is here now and will grow progressively
worse." What can the United States do? There are three basic approaches: status
quo; patchwork; and aggressive defense.

Status Quo. America’s current biological warfare doctrine involves two tracks:
a defensive posture (no stockpile of bioweapons) and deterrence (possible nuclear
escalation in response to biological attack), The status quo approach would leave
matters as they are. Unfortunately, recent advances in biotechnology seriously
weaken both prongs of this doctrine.

As we have already seen, the traditional notion of treating military biology as
a weapon of only strategic significance no longer seems to be valid. When such
‘weapons were an instrument of relatively uncontrollable mass destruction, it may
have been apropos to threaten nuclear retaliation in response to an outbreak of
plague warfare. But now that the tactical possibilities of bioweapons are begin-
ning to emerge, this deterrent linkage is not as seamless and credible as it once
was.

‘Would we go nuclear, for example, in response to the use of “black rain” or
a biological warfare campaign in Europe that sickened but did not kill the
populace? Without the capacity for like-kind retaliation (as called for by U.S.
chemical warfare doctrine), there is a policy/force mismatch that invites mischief
and miscalculation. As former SenatorJohn Tower wrote in 1982, when arguing
the need for a robust U.S. chemical weapons capability, “the idea that we can
credibly threaten to respond to a Soviet first-use of chemical weapons [during
an attack on NATO] by resorting to nuclear retaliation should be as preposterous
to the Soviets as it must be appalling to West Europeans.”*!

Similar pejoratives apply to the gap now opening up between American
deterrence policy and the expanding world of bioweapons. Our nuclear umbrella
cannot credibly deter tactical use of toxin or other limited biological agents any




Takahashi 235

Thus the Soviet Union’s most basic ideological view of Japan, as noted by
Myles Robertson, has traditionally been that it is a “member of a capitalist bloc
wracked by continual contradictions between the growth rates of mutually
dependent states and the necessity to co-ordinate economic policies on the one
hand and the antagonism of state monopoly to the limitation and regulation of
economics on the other.”!? Robertson further comments that while the Soviet
Union views the Japanese economy as a special point of friction between capitalist
nations, the need to maintain the unity of imperialism’s political-military bloc
limits that friction. Soviet political theorists debate whether Japan is victim or
accomplice of American imperialism in the Far East. Nevertheless, the basic view
is that the relationship endures despite the friction.

Just as the Soviet Union has trade relations with the countries of the capitalist
west, it likewise conducts trade with Japan, some of it of long standing. In recent
years this commerce “has revolved around the trading of energy resources of oil
and coal, and timber in exchange for technology most directly required for the
economic development of Siberia and the Soviet Far East.”"* Robertson notes
that the Soviets have kept their demands and positions free from obvious
influences of ideology, have pursued negotiations in a businesslike manner,and
have steered a pragmatic course.

Indeed, David Rees notes that in the late 1970s Japan was the U.S.S.R.’s
second most important trading partner in the non-communist world, albeit in
volumes accounting for only three or four percent of Japan’s foreign trade. It
should be noted that the 1970s was also the decade when the Japanese business
community felt itself bumed by certain investments in Siberia, which prevented
any further swelling of fiscal optimism for the area.

One has to question whether an expansion of the trade relationship is actually
more stymied by asymmetrical levels of economic development or by political
recalcitrance, which would of course bring us back to the Northern Territories
issue. Prime Minister Kaifu, in an interview in the Soviet periodical New Times
a year before the April summit, certainly gave the impression that the great
stumbling block was the latter. Kaifu talked of problems to be settled in a
significant order: the Northern Territories; concluding a peace treaty; normaliz-
ing bilateral relations; and supporting perestroika and the introduction of a market
economy.’>

The Soviet Union does, however, desperately seek to improve its economy.
Prime Minister Kaifu addressed in the same interview the role of cooperation
and economic prosperity in East Asia as the basis of regional political stability. At
present, the Soviet Union needs an improved economy not only to join in that
regional prospect but for its own domestic stability as well. The Northern
Territories issue is the negotiating point that holds out the possibility for
economic cooperation with Japan and broader economic participation in the


Takahashi 239

four islands are vital to Soviet national security and can not be exchanged for
Japanese economic aid.”° The implication is that the Soviet Union, though it has
declared a military doctrine of “defensive sufficiency” that applies to Asia as well
as Europe, notwithstanding does not intend to compromise its military super-
power status in the East as it has in the West.

Hiroshi Kimura observes that Soviet scholars who are realistic enough to
consider the territorial issue an obstacle in improving Soviet-Japanese relations
have been unofficially proposing compromise formulae. All the proposals revolve
around Japan being allowed to use the territories jointly or unilaterally but with
the Soviet Union retaining sovereignty.”* Kimura says such proposals are really
meant to shelve the problem.

The alternative to shelving the problem is to achieve an acceptable solution—
and for the Japanese there is only one solution, the return of all four islands of
the Northern Territories. What is to be seriously discussed is the terms of the
return, As early as 1956 Japan was offered a compromise package for the return
of the Habomai group and Shikotan, which together constitute seven percent of
the disputed area. The proposal was turned down then, and was declined again
in 1991 by a Japanese nation now even more confident of its place in the
international arena.

Kimura speculates that the Soviet Union will eventually decide to return all
four islands to Japan. In 1988 Soviet spokesman Mikhail Titarenko had proposed
the return of two islands upon conclusion of a peace treaty and agreement to
postpone decision on the remaining two for the next generation. Though the
Japanese found that idea unacceptable, what may be acceptable to Japan is return
of the four islands on condition of demilitarization, using a Hong Kong-type
formula in which two islands would be “returned upon the conclusion of a peace
treaty” and “the remaining two by a definite deadline, say 1999.” Kimura states
further that Japan would have to take into account the time and expense involved
in evacuating Soviet civilians and withdrawing military bases from the islands,
and that Japan, in cooperation with the United States, would work toward seeing
that the strategic security of the Soviet Union in the Sea of Okhotsk would not
become threatened. During the summit, no such large scheme was evident.
Gorbachev only wentso far as to propose as part of the joint declaration a “partial”
reduction of Soviet military presence on the four islands.”°

The crucial question is: why would the Soviet Union agree to return the
Northern Territories? Observers form around two poles, economic and military.
Kimura believes that what the “Soviet Union wants from Japan is more than the
signing ofa legal document, but rather a fundamental change among the Japanese
in their attitude toward the Soviet Union” that in concrete terms would lead to
“a long term, cheap-interest bank loan from the Japan Export-Import Bank,
more active participation in joint enterprises and the ‘special economic zone’ in
the Soviet Far East by huge Japanese corporations, Tokyo’s endorsement of the


Index 613

hostile intent, 337
individual, 14
inherent right of, 13, 14-15, 271, 333,
interceptive, 15
“Maritime Control Areas,” 135
national, 135-136
OAS charter, 372
precedents, 136
provisions of international law, 368-370, 369, 458-459, 482
reprisals, 370, 460, 461, 483
Rio Treaty measures, 372
self-defense defined, 483
unit, 82
Self-determination, peoples’ right of, 390-391, 393, 402-403, 475
Seminole Indians in Spanish Florida, 459
“Sewards Folly,” 219
Shallow Underwater Mobiles (SUM), 111, 112
Sharifov, A. (Izvestiya commentator), 247
Sharjah, boundary agreement with Iran, 87
Shatt-al-Arab crisis, 88
Shevardnaze, Soviet Foreign Minister Eduard, 219, 228, 571
Showa Mam, 121, 122, 125
Shultz, Secretary of State George, 253, 353, 354, 369-370, 457, 461-462
Singapore
extraregional concerns, 124
joint declaration on the Straits of Malacca, 120
Port of Singapore Authority, 122
regional authority over Straits of Malacca, 122-123
Skyjacking. See Hijacking, aerial.
Smith, General Samuel (Acting Secretary of the Navy), 358, 359
Solzhenitsyn, Alexander, 327
Somalia, Mogadishu rescue of hijacked Lufthansa aircraft, 380, 388, 393-394, 397, 419-420,
421, 460
Sorokin, Captain 1st Rank R.., 191-192
SOSUS systems, 103-104
South Korea, See Korea, Republic of (South).
Southeast Asian Treaty Organization (SEATO), 35-36
Sovereignty
in territorial seas. See Territorial Seas.
practice and codification of the 1920s, 267
intervention, sovereign government request for, 334
“Sovereign immunity,” 22
Soviet military strategy and doctrine
anticipatory nuclear strikes, 570
exploitation of nuclear firepower, 569-570
ground offensive, 569, 570
impressive theater nuclear capability, 570
prewar deployment of theater nuclear systems, 570
reliance on conventional and ground forces, 569-570
survivable strategic forces, 569
theories of mass, tempo, and deep penetration by maneuver forces, 570
Soviet Union
accusation of U.S. espionage in Black Sea, 249-250, 253
advantages of restrictive seabed use, 105
Afghanistan, 22, 323-325
Agreement Between the United States and the Union of Soviet Socialist Republics on the Maritime
Boundary, 219, 222, 225-228
Agreement on the Prevention of Dangerous Military Activities (1989), 255-256


‘264 Readings on International Law

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
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.” 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 armed 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,” 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:

[Tyhe 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.”


Chapter 10

The Cordon Sanitaire—Is It Useful?
Is It Practical?*

Lieutenant Commander Stanley F. Gilchrist, U.S. Navy

hat Soviet naval units shadow U.S. aircraft carrier battle groups is common

knowledge, but no less dangerous for that. Those tattletales provide the
Soviet Navy with continuous, accurate information on the position of our
carriers—the repositories of most of the conventional striking power of the U.S.
Navy. The tremendous concentration of power in only twelve carriers makes
them extremely lucrative targets in wartime.

Soviet leaders have clearly recognized the advantage to be gained by placing
the carriers out of action in the first minutes of hostilities before carrier air power
could be brought to bear on the ships of the Soviet Navy and targets ashore.
Soviet surface combatants, submarines, and aircraft carry extremely capable
antiship missiles, and the Soviet Navy frequently conducts anticarrier exercises
during which the forces practice coordinated attacks.’ A coordinated preemptive
strike with antiship cruise missiles using precise targeting data provided by a
tattletale could overwhelm a battle group’s air defenses and destroy or cripple
the carrier’s striking power before it could be used.

The presence of a Soviet ship or perhaps several ships in company with a U.S.
carrier battle group has become accepted as routine during normal peacetime
operations, but such shadowing in a crisis situation on the “edge of war” would
be an intolerable risk. Clearly, in crisis the United States needs some means of
denying the Soviets this tattletale capability without precipitating hostilities.
Although right now serious political and legal problems would inhibit its use,
the concept of the cordon sanitaire offers great promise as a means to solve this
dangerous problem.

As early as the 17th century, the French term, cordon sanitaire (sanitary zone),
was used to describe the establishment of a perimeter around an area infected
with contagious disease to effect a quarantine. Gradually its usage spread to
connote military perimeters enclosing safe areas. Later, the system of alliances
instituted by France in post-World War I Europe that stretched from Finland to
the Balkans was also referred to as a cordon sanitaire. It completely ringed

* Reprinted from the Naval War College Review May-June 1982.


92 Readings on International Law

While many of the issues are of interest but do not affect the Gulf States directly
because of the relatively small size of the Gulf, two issues have been especially
important to Iran and Saudi Arabia—the status of the straits used for international
navigation and the preservation of the marine environment. At the heart of the
two issues are two fundamental tensions confronting conference participants.
First is the tension between the interests of a coastal State in regulating its adjacent
sea and those of the international community in freedom of the high seas. The
second is the tension between the particular needs of “special areas” and the
attempt to establish general rules that would be universally applicable.

The question of transit through straits has been especially important to both
parties. Iran has maintained that “the sovereignty of the coastal State was subject
only to the exercise of the right of innocent passage of ships,” and that “passage
through straits used for international navigation must not affect the legal status
of the territorial sea when the straits were situated within the territorial sea of
one or more States.”?! Iran, bordering on the strategic Strait of Hormuz, is
especially interested in “regulating” passage through the strait. Free transit or
innocent passage would exist as long as pertinent regulations were complied with.

Saudi Arabia “supported free passage in international straits connecting dif-
ferent parts of the high seas” and contended that a distinction should be made
between straits.>? A Kuwaiti delegate, speaking for six Arab States including Saudi
Arabia, stated that “the term ‘straits used for international navigation’ should be
strictly confined to straits which connected two parts of the high seas.”*> He
farther indicated that “the Governments on whose behalf he was speaking had
not acceded to the Convention on the Territorial Sea and Contiguous Zone of
1958" because it “treated all straits alike.”>* Thus, Saudi Arabia and others
continue to show a security concern for any Israeli transit through the Gulf of
Agaba and Strait of Tiran.

Related to Iran’s policy on straits has been Iran’s concern for the special
characteristics of the Persian Gulf as a semienclosed sea. In 1974 Iran called for
a special status for semienclosed seas to be recognized. The Iranian representative,
Mr. Kazemi, pointed out special problems of semienclosed seas, especially
regarding the preservation of the marine environment, resource management,
and international navigation, and asserted that their particular status constituted
“an exception to the general rule.’ 35 Mr, Kazemi indicated that “his delegation
attached great importance to the protection of the marine environment and to
the struggle against the pollution of the seas.” © Mr. Parsi, in the Second
Committee, stated that “enclosed or semi-enclosed seas represented more acute
problems which could not be solved by global norms applicable to all oceans,”
and that “they formed an intrinsic geophysical and ecological entity and were
vulnerable to pollution and overfishing.”*”

Because of the Iranian interest in the preservation of the marine environment
and special consideration for semienclosed seas, Iran came to promote a “zonal


PART SIX

OTHER LEGAL ISSUES


Webb 347

operated 29, for the first time creating a permanent presence in the region. By
the 1973 Yom Kippur War, however, there were 59 U.S. ships, only 7 British
ships, and 95 Soviet combatants. This is a trend that has replicated itself
throughout the globe. We see it in the Pacific, where the Soviets operate their
largest fleet and where on any given day at Cam Ranh Bay, Vietnam, there are
two dozen Soviet combatants. We see it in the Indian Ocean and the Persian Gulf.
‘We see it in the Caribbean, and we see it off of our own shoreline.

Luckily, our country has built up a vast reservoir of experience in the uses of
the sea services to influence events. Strategically, we know, first, that our strategic
submarine force provides the greatest deterrent to the Soviet nuclear threat, as it
provides half of the country’s nuclear capability at one-fourth of the overall cost
of this element of national defense.

We know, secondly, that our carrier battle groups and amphibious forces have
vast maneuverability which allows power projection to occur at key crisis points
irrespective of either the need for expensive base rights or the vulnerability that
goes along with long-term static positions.

And we know, thirdly, that the battle at sea can often be decisive to the battle
on land. I am reminded of Liddell Hart’s depiction of the historic race for Tunis
during the North African Campaign of World War II, when the Germans moved
250,000 occupation troops from France, principally by airlift, and were unable
to control the sea in order to equip and resupply their soldiers. The end results
were disastrous on a strategic level: we captured more than 200,000 of these
troops when we took Tunis, and we did not have to fight them when we invaded
Normandy. Without control of the sea, the Germans lost twice. We should not
forget this as we contemplate our own reinforcement plans in the NATO arena.

Despite the record, however, we are still afflicted by the persistent illusion
that somehow we can remake these fundamentals of maritime strategy through
technological breakthrough or mental gymnastics. Sometimes, policymakers seek
relief through strategic amnesia, which is perhaps the only way we might explain
what happened to the Navy during the 1970s. Twenty years ago we had a
thousand ships. By 1979 the fleet had dropped to 479 combatants and was
burdened with expanding commitments driven by the crises in the Indian Ocean
and Persian Gulf. The 600-ship navy we have been building since 1981 represents
less an innovation of strategy than simply the long overdue effort to close the
gap between political ends and military means. By revisiting a maritime strategy
driven by historic demographics, we remind ourselves that we must have
maritime supremacy over any threat to our seagoing communications, and that
‘we must be supreme on the sea if we are to have a chance of prevailing on the
land. This is not an option, it is a prerequisite, the very basis of our national
strategy.

Any military strategy worthy of the name chooses the means, ordains what
we procure and why. The critics of today’s strategy claim that 15 deployable


PART FOUR

TERRORISM


278 Readings on International Law

Vv
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 eventually 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
normal 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.) 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
formerly 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.”

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


Terry 369

power projection were all imminently threatened with armed attack. Not only
had there been dangerous rhetoric (including a declaration of war) placing the
Canal Treaty provisions in imminent risk, but attacks on U.S. citizens, coupled
with allusion by Noriega to further “corpses,” made more attacks likely. Further,
there was every evidence that this threat would continue as long as General
Noriega remained in power.

A further condition to be satisfied relates to the possibility of an alternative to
military force which might have returned the U.S.-Panamanian relationship to an
acceptable status quo. The Charter contemplates a hierarchy of responses with armed
force authorized only when other responses have been attempted and have failed,
or are obviously without application. In the case of Panama, all other reasonable
measures had been addressed. Every form of diplomatic (including the recall of our
ambassador), economic (including sanctions) and legal initiative (including indict-
ment of Noriega) had been attempted, yet conditions had only worsened.

Although the use of force has been seriously questioned by some international
legal scholars® and certain Latin nations, a detailed scholarly analysis brings one to
the same conclusion held by President Bush. Sir Gerald Fitzmaurice, former jurist
on the International Court of Justice (CJ), notes that international law “by no means
permits [self-defense] in every case of illegality, but on the contrary, confines it to a
very limited class of illegalities.”® Professor Ian Brownlie of Oxford University sets
the parameters clearly when he states “. . . provided there is control by the principal,
the aggressor State, and an actual use of force by its agents, there is an ‘armed attack.”
This view was further expanded by the International Court of Justice in their 1979
ruling Concerning United States Diplomatic and Consular Staff in Tehran (United
States v. Iran), The Court found Iranian actions in seizing our diplomats to be an
armed attack on the United States.>

Professor John Norton Moore of the University of Virginia clearly brings
actions such as were carried out by Noriega’s forces against U.S. citizens and
interests within the scope of an “armed attack” when he concludes that “a state
is entitled to respond against aggressive attack, whether that is a direct attack
using armies on the march, or whether it is low intensity conflict or guerrillas or
terrorist attack.” The more significant legal issue may not have been whether
the United States might respond to attacks on its personnel, however, but
whether it could take those actions necessary to preempt reasonably anticipated
future acts of violence against its citizens in Panama through removal of Noriega.
The U.S. position has always been that Article 51 of the U.N. Charter does not
create a new principle, but rather reiterates the inherent right of self-defense
recognized by customary international law.'°

As such, the right of self-defense is not limited to responding to an actual
armed attack but also includes preemptive or anticipatory self-defense. Former
Secretary of State Shultz reaffirmed this view during the Libyan crisis in 1986


Robertson 273

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 such designation through the routes


52 Readings on International Law

asserting jurisdiction over the continental shelf adjacent to the United States, and
the Latin American States’ claims for a wide fishing zone, could have been tied
to a generally recognized source for customary international law that he would
urge for the world’s navies, namely, practice among nations. Some discussion of
national attitudes about law and sources of the law would have been a useful
addition to the study.

A comprehensive examination of law of the sea issues should also explore the
problem in its total context. Viewed in its largest geographic scope, the law of
the sea includes the land, the sea and its tributary waters, the seabed, airspace and
outer space. Each of these geographic features is interrelated with the others, and
the legal regime of the sea and the seabed cannot be properly considered without
a thought for the other geographic arenas. For example, what does it profit a
nation to demand a 3, 6 or 12-mile limit for purposes of coastline security if its
adversary can collect all the data it needs by reconnaissance satellite in violation
of the Convention on Peaceful Uses for Outer Space? The naval commander's
judge advocate must have an appreciation of the circumstances that would permit
destruction of such satellites. Air operations are a major factor in naval power
today, yet there was little integration of what rules there are for air warfare and
for peaceful use of airspace. Janis’ scope is peacetime use of the oceans; however,
the law of armed conflict—also a part of international law—has important norms
binding on nations, particularly in a projection context:'5 rights of fishing vessels,
tights of merchant ships, submarine cable protection, mine warfare and blockade,
the rights of belligerent vessels in neutral ports, hospital ships, the rights of
disadvantaged persons involved in naval operations (the wounded and
shipwrecked at sea, civilians, and prisoners of war), and so on. Janis might have
mentioned the Nuclear Non-Proliferation Treaty, the Antarctic Treaty, or the
Latin American nuclear free zone both for their possible impact on oceanic law
problems and as part of the trend relative to peaceful uses of the deep seabed.

Janis has recognized the connection between the peacetime uses of the sea,
the usual context the LOS negotiations contemplate, and the different factors at
work during war, '® but he does not so state in Sea Power. Assuming that the scope
is to be limited to peacetime naval operations, or to cold war confrontations,
discussion of the United States-U.S.S.R. Agreement on Incidents at Sea, con-
ventions on the international rules of the road, mercantile agreements that
indicate policy shifts as important as those in the LOS negotiations, and the welter
of environmental treaties and national legislation,” would have placed the
evolving oceanic law in deeper perspective. Finally, the naval officer—be he line
commander or judge advocate—must be aware of the ever-present factors of
national criminal statutes that limit or prescribe conduct on the oceans, his own
code for military discipline, and his navy’s general regulations that may have the
force of law. To be sure, these sources are usually considered in the context of
individual responsibilities, but fleet commanders also risk indictment or charges


418 Readings on International Law

Because the use of deadly force invokes the power of summary execution it
can be justified only in extreme necessity. Its use is not authorized for the purpose
of preventing activities that do not pose a significant risk of death or serious bodily
harm.®

Having set forth the prohibition on the use of force under Posse Comitatus,
two significant exceptions must also be addressed. Under certain circumstances,
readily conceivable, military force can be employed domestically without
Presidential proclamation.

As a result of the Organization of American States “Convention to Prevent
and Punish the Acts of Terrorism Taking the Form of Crimes Against Persons
and Related Extortion that are of International Significance” and the U.N.
“Convention on the Prevention of Crimes Against Internationally Protected
Persons,” the U.S. Congress had to pass effecting legislation. It is standing policy
of the State Department not to deposit an instrument of ratification unless it is
assured that federal law would permit the United States to discharge fully its treaty
obligations, The safeguards of this legislation not only pertain to Heads of State
but also to:

Any representative or official of a State or any official or other agent of an
international organization of an intergovernmental character who, at the time
when and in the place where a crime against him, his official premises, his private
accommodations or his means of transport, it committed, is entitled pursuant to
international law to special protection from any attack on his person, freedom or
dignity, as well as members of his family forming part of his household.”

Additionally, the legislation authorized “The Attorney General, in the course
of enforcing the provisions of the statute relating to internationally protected
persons to request assistance from any federal, state, or local agency.” Specifi-
cally, the law reads:

In the course of enforcement of this and any other sections prohibiting a conspiracy
or attempt to violate this section, the Attorney General may request assistance from
any Federal, State, or local agency, including the Army, Navy and the Air Force,
any statute, rule, or regulation to the contrary notwithstanding.”*

This particular piece of legislation’s provisions parallel part of Public Law
91-644 passed in 1971 dealing with Congressional assassination, kidnapping and
assault, That law stated that whoever kills or kidnaps (or attempts same) of any
individual who is a member of Congress or a member of Congress-elect shall be
punished and

Violations of this section shall be investigated by the Federal Bureau of Investiga~
tion. Assistance may be requested from any Federal, State, or local agency,


464 Readings on International Law

23, SeeNeutze, The Gulfof Sidra Incident: A Legal Perspective, U.S, Naval Institute Proceedings, 1-5 (January
1982). The attack by Navy F-14s on two Libyan jets which had fired on them over the Gulf of Sidra, had
missed,and were returning to base in Libya was justified on the basis that they constituted a continuing threat
because they could have tumed at any time and reinstituted the attack.

24, See MCDOUGAL, STUDIES IN WORLD PUBLIC ORDER 711 (1960).

25. OPPENHEIM, INTERNATIONAL LAW 298 (8th ed. 1955).

26. Id. at 299,

27, Brownlie, The Use of Fore in Self-Defense, 37 Brit. Y.B. Int'l L. 183, 207 (1961).

28. Address by Secretary of State Kellogg before the American Society of International Law, 28 April
1928, Am. S, Int'l L, Proc. at 141, 143 (1928).

29. U.N. General Assembly (UNGA) Resolution 2625 (1970).

30. See, e.g. the statement of the Secretary of State in 68 Am. J. Int'l L. 736 (1974).

31. George Shultz, Address before the Low-Intensity Warfare Conference (National Defense University,
‘Washington, D.C.: 15 January 1986).


420 Readings on International Law

Group Nine (G.S.G.-9), which was formed as a result of the Munich Olympic
massacre. Under the leadership of Ulrich Wegener, G.S.G.-9 might be one of
the most formidable antiterrorist groups in the world. Each member of the group
must be a volunteer, capable of maintaining calmness under the most severe stress,
and possess a minimum I.Q. of 110. Rigorous training in martial arts, hand
combat, scuba diving and special weapons use has built a team capable of quick,
decisive action as exemplified by the success at Mogadishu.

Other countries have also formed specialist antiterrorist teams, such as the
British Special Air Service (SAS) that was created during World War II and used
successfully in London in 1980. The French have a highly respected 30-man
team, the Gigene, and the Italians formed a 50-man Squadra Anti-Commando.”

Compared to these “lean and mean” units, the United States identified the
following U.S. military forces as having counterterrorist capabilities:**

1. U.S. Army Ranger Battalions
— 588 men
— Located at Fort Stewart, Ga, and Fort Lewis, Wash.

2. USMC Battalion Landing Team
— 1200 men
— Located at Camp Lejeune, N.C., Camp Pendleton, Calif, and on Okinawa
— Can be air-landed

3. USMC Marine Amphibious Unit
— 1800 men
— Located in WESTPAC and Mediterranean (afloat)
— Immediately available but location varies
— Can be landed by helicopters

4, U.S. Army Special Forces

— Nine battalions of 242 men

— Located at Fort Bragg, N.C. (5), Fort Devens, Mass (2), Canal Zone (1),
and FRG (1)

— Response time varies depending on current operations/training missions
underway

— Parachute qualified

— Language qualified for many areas

5. U.S. Marine Force Reconnaissance Company
— One company of 190 men
— Located at Camp Lejeune, N.C.
— Parachute, scuba qualified
— Extensive training suitable for counterterrorist operations

6. U.S. Navy, Sea, Air, Land (SEAL) Platoons
— Nineteen platoons of 14 men each


38 Readings on International Law

“clarified” the situation denying that the President had intended “piracy” in the
sense of the 1958 Geneva Convention in the High Seas, thus denying that the
legal results of the label should flow. In fact, there is ample historical and legal
basis for President Ford’s use of the word,° but that use is not the one purportedly
codified in the 1958 Geneva Convention on the High Seas.” There seem to be
at least six quite different conceptions of “piracy” that have been used from time
to time by international lawyers to justify suppressive action, some of them
wholly outdated, merely political, or simply irrelevant to the situations to which.
their legal implications are occasionally sought to be applied; President Ford was
apparently using the word without a clear idea of which sense was intended. As
arule of thumb, then, naval commanders should beware of drawing legal results
from labels used by newspapers, staff lawyers, or even the President of the United
States.

The unwisdom of acting on the basis of labels rather than on the basis of facts
is reflected in a deeper conception familiar to international lawyers:
Autointerpretation. Since all States are equal before the law, and there is no
formal legislative body and only a very limited judicial competence in the
international legal order, the legal classification of facts on the basis of which
action is taken by States must always in the first instance rest on “‘autointerpreta-
tion”: The classification made by the acting State’s responsible officials for their
own purposes. But autointerpretation is not a definitive legal determination of
the true relationships and their legal results. States have apologized for acts taken
pursuant to self-serving autointerpretations which in retrospect seemed more like
mere adversary briefs than convincing analyses. The final determinations are
made by the political pressures of the entire international community and by
history. Thus naval commanders, like international lawyers, should approach the
most convincing legal arguments with a certain degree of skepticism. A firm
position stated by a Soviet vessel that the United States has no legal right to retain
custody of a fleeing Soviet sailor reaching an American vessel on the high seas
cannot legally be more than a Soviet autointerpretation of the law. It cannot in
theory or practice be a determination of the law however persuasively argued.
And, similarly, in the absence of an order absolving an American naval com-
mander of responsibility for his action, even a legal position uttered by the United
States Government is a shaky basis for action. Wise policy must be influenced
by legal perceptions, just as it must reflect economic interests and military
interests, but the self-serving legal briefs of only one party are not a solid basis
for decisionmaking, even in legal theory.

5. Supremacy of the Law. It may seem odd after this analysis to refer to the law
as supreme, but it is necessary. The final determinations made by politics and
history are devastating. To ignore the inherent weakness of autointerpretations
and adversary briefs before the glare of publicity, counterargument and the many
legal and political actions that States take to keep each other in line would be


Chapter 38

Neutrality and International Order*

Count Wilhelm Wachtmeister

am glad to be back in Newport, one of my favorite places, which I often visit

as a guest of my good friend Senator Claiborne Pell and his wife Nuala. It is
a particular honor and pleasure to be invited to speak at the Naval War College,
which every two years gives a Swedish naval officer the benefit of a year’s
education.

My subject this evening is “neutrality and international order.” By way of
introduction, let me recall the story attributed to a famous British statesman,
intimately familiar with warfare and in particular with the naval aspects of it.
Once he rose to thank his hosts for a dinner and shocked the guests by saying
that he had anticipated that honor and had prepared two speeches. Depending
on the quality of the table, he would make use of one or the other. He said he
had been treated well and therefore had decided to deliver them both. The brief
speech went as follows: “Thank you!” And the longer one: “Thank you very
much!”

I will do the same and deal with two slightly different but interrelated subjects:
neutrality, and the policy of neutrality. I will naturally do so from a Swedish
perspective, but in order to highlight that perspective I will briefly refer to the
neutrality of other countries.

There are few neutral countries in the world, and their history, policies and
problems are overshadowed by the flow of information from the great powers
and their allies. I therefore believe that an introduction to neutrality is warranted.

A common denominator for the different forms of neutrality is that its
meaning, in terms of international law and in military terms, is revealed only in
time of war between foreign powers. That is the time when the rules of
international law pertaining to neutrality enter into force, both for the neutral
States and for the belligerents. Those rules, which are binding on both categories
of States, are found in the fifth and the thirteenth Hague convention of 1907.
These conventions deal with the Rights and Duties of Neutral Powers and
Persons in War on Land, and the Rights and Duties of Neutral Powers in Naval
‘War. (No such rules have been developed pertaining to the situation in the air.)

* Reprinted from the Naval War College Reveiw Spring 1990.


454 Readings on International Law

Notes

1. Brian Jenkins of the Rand Corporation made this point most clearly with an illustration from the
massacre at LOD Airport in 1972. He states that with terrorism there is a stronger connotation of guilt and
punishment than in other forms of warfare or politics and a narrower definition of innocent bystanders. The
victims of the Lod incident, many of whom were Christian pilgrims from Puerto Rico, were said by the
terrorists to be guilty because they had arrived in Israel on Israeli visas and thereby had tacitly recognized the
State that was the declared enemy of the Palestinians and, by coming to Israel, they had in effect entered a war
zone. The organization was saying that those who happened to get shot, just because they were there, Were
nonetheless guilty or they would not have been shot.

2. The incident at the Marine Headquarters in Beirut does not necessarily equate to an act of terrorism.
Itis more in line with a hostile surprise attack in a war zone for which the victims were ill prepared. A careful
review of the Long Commission Report published in December 1983 provided a good deal of information
which supports this view. At the time of the attack there were two occupying armies, four contingents of
multinational forces, seven contributors to the United Nations peacekeeping force, and some two dozen extra
legal militias operating in a country about the size of Connecticut. Over 100,000 people had been killed in
the past eight years as a result of the violence. The government that received US support was viewed by many
as yet one other faction of the many secking power. Our siding with the government was seen as entry into
factional warfare on the side of one of many participants. The shelling by the Navy at Suq-Al-Gharb in support
of the Lebanese Armed Forces confirmed this in the minds of many engaged in the battles. What has been
called in this country an act of terrorism may have rather been a warring faction, surprising and successfully
penetrating the defense of an enemy. The incident is easier to digest, however, ifthe victims are described by
their leaders as having suffered at the hands of terrorists. Somehow the heavy responsibility for the lack of
defense becomes more tolerable. The Long Commission Report has much value for the military individual if
one reads beyond the talk of terrorism and focuses on poor intelligence, unclear chains of command, clarity of
mission, communications, perceptions and organizational problems.


440 Readings on International Law

government. To this end, should acts of marine terrorism occur against offshore
extractive structures in these zones, a coastal State would be duly authorized
under the 1982 LOS Convention to take appropriate steps in rejoinder, whether
they be nonviolent or involving use of force. The fact that such installations only
could be constructed in sits by means ofa licensing arrangement with the coastal
State’s government further substantiates this conclusion.

2. Offshore Maritime Terrorism as Piracy. As mentioned, terrorism can.
be aptly viewed as a stateless crime directed against international society.
Similarly, the classic legal perception of piracy holds that “Pirates being the
common enemies of all mankind, and all nations having an equal interest in their
apprehension and punishment, they may be lawfully captured on the high seas
by the armed vessels of any particular State, and brought within its territorial
jurisdiction, for trial in its tribunals.””? One might suitably infer that overt acts
of maritime terrorism perpetrated against the crew of an offshore facility
conceivably could qualify as modern day piratical acts under international law.
Unlike nearly all other aspects comprising the changing law for the oceans,
however, present legal norms pertaining to piracy have remained locked in
custom and correspondingly sealed by the legal 1958 Geneva Convention on the
High Seas.°° As a consequence, serious juridical and definitional difficulties arise
when one equates offshore maritime terrorism with the traditional international
law pertinent to piracy.

As defined by customary international law, an act of piracy jure gentium had to
be “adequate in degree—for instance, robbery, destruction by fire, or other injury
to persons or property.”31 Moreover, said act must have been committed on the
high seas, as opposed to similar illicit acts committed within some States’
jurisdiction. Lastly, the perpetrators, “at the time of the commission of the act,
should be in fact free from lawful authority . . . in the predicament of outlaws.”**
Thus the international crime of piracy jure gentium came to be predicated upon.
indiscriminate plunder by a private vessel against commercial vessels on the high
seas.

During the twentieth century, the traditional definition of piracy as robbery
on the high seas became more comprehensively refined by the so-called Harvard
Research on International Law Group. In 1932, the Harvard Researchers’ Draft
Convention on Piracy concluded that: Piracy is any of the following acts,
committed in a place not within the territorial jurisdiction of any State:

“Any act of violence or of depredation committed with intent to rob, rape,
wound, enslave, imprison or kill a person or with intent to steal or destroy
property, for private ends and without bona fide purpose of asserting a claim of
right, provided that the act is connected with an attack on or from the sea or in
or from the air. If the act is connected with an attack which starts from on board
ship, either that ship or another ship which is involved must be a pirate ship or
a ship without national character.”** While not a legally binding codification,


502 Readings on International Law

illustrated by the billions of dollars and years of effort already expended to discover
a defense against a naturally occurring biological phenomenon—the AIDS virus

As novelists are fond of reminding us, biotechnology could conceivably
unleash the equivalent of a homemade “Andromeda strain”—a pathogen so
demonic that it would result in global catastrophe. In the judgment of most
knowledgeable experts, however, the more realistic threat lies in gene-splicing’s
powerful ability to recombine bits and pieces of know organisms in a nearly
limitless array. As one government official described the problem, “new [biologi-
cal warfare] agents can be produced in hours; antidotes may take years.”>

The Pressures and Perils of Proliferation

A key aspect of this emerging technology is that weapons of mass destruction
threaten to become commonplace. We are crossing into an era when tiny nations
and terrorist groups can arm themselves with biological and chemical weapons
of great destructiveness—the equivalent of the “poor man’s atomic bomb.”

For example, Moammar Qadhafi has long sought a nuclear capability for
Libya, but thus far without apparent success. Recent reports suggest, however,
that Libya is now developing both biological and chemical weapons. 6 Should his
nuclear quest continue to be thwarted, it is likely that Qadhafi’s long-touted
“Moslem bomb” will be a biochemical weapon rather than an atomic one.

An estimated 10-20 other nations have biochemical weapons, and this number
is expected to double in the coming decade.’ While current technology permits
even backward countries to achieve a quasi-nuclear status at bargain basement
cost, the technological infrastructure required to develop an atomic weapon is
far more complex and expensive than the effort needed to produce sophisticated
biochemical weapons. The same processes used to make fertilizers and pesticides
can also churn out poison gases; similarly, bulk toxins can be manufactured at a
gene-splicing facility, at modest cost, and based on techniques freely available in
the scientific press. Poor, nonnuclear nations caught up in a regional arms race
or believing themselves menaced by heavily armed neighbors are beginning to
invest in biochemical weapons as a “cheap” but potentially nasty deterrent.

In the decades ahead, it is likely that many additional nations will opt to acquire
such arms. Proliferation of biochemical weapons is part of a broader cycle of
global diffusion of political, economic and military power. As the international
alignment continues to shift from a bipolar to a multipolar world, weapons of
mass destruction will also spread. It is conceivable that by the turn of the century
35 nations will possess a stockpile of nuclear, chemical and/or biological
weapons. Aside from placing many new fingers on the triggers of mass destruc-
tion, such a development would also diminish superpower freedom of action.
As time passes, conclude the authors of a landmark report on Discriminate
Deterrence, “[t]he arsenals of the lesser powers will make it riskier and more


Chapter 19

The “New’ Law of the Sea
and +
The Law of Armed Conflict at Sea.’

Horace B. Robertson, Jr.

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,’ 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.”* The American Law Institute,
in its authoritative Third Restatement of the Foreign Relations Law of the
United States, went further, stating:

[Bly 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 zones® recognized in the
Convention. These include the twelve-nautical-mile territorial sea, the twenty-
four-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.

* This article was previously published as the Naval War College Newport Paper #3, October
1992,


542 Readings on International Law

extremely vulnerable. At the direction of the CO, the TAO’s reports of the
helicopters’ observations to higher authority did not include the information on
the “white flags.”

During the following several hours, the executive officer (XO), having been
informed of the white flags by two enlisted personnel, went to the combat
information center, informed the CO of his concerns and those of the two men,
and recommended that the information on the white flags be forwarded up the
chain of command. The CO rejected that course, indicating that he did not want
to risk his ship and crew and that it was his decision to make as the on-scene
commander. He later testified that he had decided that the white flags did not
indicate the intention of all personnel on the platform to surrender, and that his
decision was influenced by his close working relationship with the Kuwaitis, who
had told him that the Iraqis could not be trusted, having used white flags as a
ruse during the Iraq-Iran war.

After coming back on board, the helicopter personnel discussed the white
flags among themselves and with their officer in charge, but none of them voiced
concern to the CO, nor did the CO attempt to discuss the white flags with any
of the helicopter crew who had actually observed them. Of the nine officers on
board who were aware of the white clothes, only the executive officer and
Tactical Action Officer expressed misgivings to the CO.

After dark, the SAG launched helicopters which attacked the platforms with
missiles, rockets, and .50-caliber machine guns. The Nicholas and the Kuwaiti
ships followed up with 76mm and 40mm gunfire. Following the three-hour
engagement, battle damage assessment by the helicopters disclosed survivors in
a rubber boat, which the frigate located and took on board. During processing
one of the survivors asked through an interpreter why the ship had fired on them
when they had tried to surrender. During the remainder of the night, the
American frigate and Kuwaiti ships retrieved prisoners and the bodies of those
killed from the platforms and provided medical treatment, food, and clothing. A
naval special operations team that went on board the platform the next morning
encountered no resistance but discovered large stocks of weapons and com-
munications equipment. Five Iraqi soldiers had been killed in the attack of the
day before and twenty-three taken prisoner. The prisoners were subsequently
evacuated to Saudi Arabia; in debriefs conducted ashore, only one of them stated
that the personnel on the platforms had wanted to surrender.

The subsequent board of investigation recognized the complexity of the
situation faced by the frigate’s CO. The SAG had been conducting a combat
operation; however, the targets were not ships but rather fixed platforms manned
by soldiers. The board opined that under the law of naval warfare at sea, a unit
must surrender as a unit; individual displays of evidence of surrender must indicate
that the unit is surrendering, not just one individual. The normal sign ofsurrender
is the striking of the colors. On the other hand, under the law of land warfare,


Chapter 12

Law of the Sea—What Now?*

Jon L. Jacobson

n 30 April 1982, following nearly fifteen years of preparations and formal

deliberations, The Third United Nations Conference on the Law of the
Sea (UNCLOS III) finally adopted a new, comprehensive treaty on the Law of
the Sea. The vote was 130 nations in favor, 4 opposed, and 17 abstentions. The
United States cast one of the four negative votes,

On 10 December 1982, the new treaty, officially known as the 1982
Convention on the Law of the Sea,! was opened for signature in Montego Bay,
Jamaica. On that first day (of a two-year signature period), 117 nations signed.
Signers included most of the Third World, several Western European countries,
and the Soviet bloc.

The United States refused to sign. So did 23 or so other nations, but the United
States was the only nation to announce that it would never sign or ratify or
otherwise participate in the treaty. Japan and several other countries have since
signed, although ratifications (the formal indications of intent to be bound by the
treaty) have been slow in coming.

The United States’ objections to the 1982 Convention are leveled solely at
the treaty provisions that would establish and define an International Seabed
Authority to oversee mining of the deep seabed beyond national jurisdiction.
‘Yet—as President Reagan conceded in his 9 July 1982 statement rejecting the
treaty’—the non-seabed portions of the treaty are more than acceptable to the
United States. In fact, its provisions on transit passage through international straits
and on preservation of navigation and overflight freedoms within 200-mile
ofBhore zones are quite favorable to the United States as a global naval power.

So the question arises: is the United States, in rejecting the treaty, tossing out
the baby with the bathwater, or, in this case, threwing out the sea with the
seabed? The answer to that question, and to the question of where we go from
here, might be assisted by an initial inquiry: how did we get into this situation?
And to approach this question, we need to examine recent trends in the
international law of the sea and some of the causes for these trends.

The crucial date is 1945. For approximately 300 years prior to 1945, the world
ocean was considered (at least by the dominant Western colonial powers) to be

* Reprinted from the Naval War College Review March-April 1984.


378 Readings on International Law

guerrillas seem merely to have returned to their home bases in Zambia, whereas
the Sandinistas, as a result of negotiated concessions, were put on an airplane by
the Nicaraguan Government and flown to asylum in Panama. In both instances,
the element of haven was essential to the total success of the operation.

It is, admittedly, too strong to say that without havens there would be no
terrorist acts. But it would be equally misleading to say that terrorism in either
its past or present form would have been as extensive and as prevalent if havens
did not exist. According to recent Central Intelligence Agency estimates, “62.8
percent of terrorist missions had elaborate escape plans built into them.”® Many
terrorists expect to survive, and the record shows that a large majority have
achieve their goal.?

There are those who will argue that the Rhodesian and Nicaraguan incidents
are not relevant and thus the assumptions above are erroneous as a legal distinction
should be made between terrorists and guerrillas,!° Others take a contra view,
maintaining that terrorism is intrinsically criminal, and that international ter-
rorism must by definition be an extraditable crime.!! The quarrel is essentially
definitional but one cannot hope to get at the problem if its essence is not
understood. As with any legal analysis, there must first be some agreement over
what is actually at issue.

Despite the global effect of terror violence during the past decade, and the
innumerable studies, analyses, reports, and resolutions by social scientists, legalists,
and even governments, there still is no generally accepted definition of terrorism.
and a legal definition, likewise, has yet to be formulated. But there is enough
agreement among analysts to derive a manageable formula. Individual or group
terrorism—as opposed to government or State terrorism—may be described as
the use of force or the threat of force directed against innocent third parties for
primarily ideological, financial, or psychological purposes. Terror violence,
either international or transnational,!* must include at least one of the following
elements: (1) the act or series of acts must take place in more than one State; (2)
the act or series of acts must involve citizens of more than one State; (3) the act
or series of acts must be directed at internationally protected persons; (4) the act
or series of acts must occur outside of an exclusively national jurisdiction; (5) the
act or series of acts must be directed against internationally protected property.
If one or more of these elements is satisfied, then the act or acts in question are
no longer merely common criminality but rather international crimes affecting
world public order.'3

For every legal rule there is almost always an exception, and its is no different
with restrictions upon terror violence. Aerial hijacking, or interference with
commercial air transport, have been legally construed as internationally
prohibited terrorist acts. The three major antihijacking conventions—Tokyo
(1963), the Hague (1970), and Montreal (1971)—have criminalized attacks upon.
aircraft, passengers, and airport facilities, although many loopholes still exist and


MacDonald 87

Bilateral Agreements. Numerous bilateral agreements delimiting offshore juris-
diction in the Gulf have been reached. These are commonly called continental
shelf boundaries even though no shelf as such exists within the Gulf. They are
all based upon equitable principles, but are flexible in their application of such
principles. The first agreement, the Saudi Arabia-Bahrain Agreement of 22
February 1958, established a central boundary line between the two States based
on equidistance.'? Also included in the treaty was the establishment of a
hexagonal area under Saudi jurisdiction, but with half of the net income derived
from the area to go to Bahrain. The Saudi Arabia~-Kuwait Agreement of 7 July
1965 provided for joint ownership of mineral rights in the offhore neutral zone
and joint exploitation unless otherwise agreed.'*

Perhaps the most significant agreement reached in the Gulf was between Saudi
Arabia and Iran on 24 October 1968. It delimited the boundary line separating
the submarine areas between the two States. The agreement, reached only after
difficult negotiations, provided for a boundary having three distinct parts. Again
the flexible application of equitable principles was necessary. The lower portion
of the boundary essentially represented a median line. The central portion
included two disputed islands. One island went to each State, with territorial seas
recognized for both. The upper section of the boundary proved to be the most
difficult. One compromise resulted in Kharg Island being given “half-effect.”
Also, the boundary line was drawn irregularly to divide equally the resources of
an oilfield discovered after negotiations had begun.

Other boundary agreements were also reached between Iran and Qatar in
1969; Iran and Bahrain in 1971; Iran and Sharjah in 1971; Iran and Oman in
1974; and Iran and Dubai in 1974, Nevertheless, a number of boundaries remain
in dispute, especially in the extreme northern and southern parts of the Gulf.

Multilateral Agreements. The only legal development in the Gulf based on
multilateral action has involved the protection of the environment. First, the
International Conventional for the Prevention of Pollution from Ships signed in
London on 2 November 1973 provided for the designation of “special areas”
that required more stringent protective measures for the preservation of the
marine environment.'® The Persian Gulf was one such area.

Subsequently, in April 1978, the Gulf States convened the Kuwait Regional
Conference on the Protection and Development of the Marine Environment.
At the conference the Kuwait Regional Convention for Cooperation on the
Protection of the Marine Environment from Pollution was signed. Also a
Protocol, providing for joint cooperation in the case of a. major oilspill or other
marine emergencies, was signed.’

Legal Development: Regional Context. When placed ina broader regional context,
the substance and timing of the various national claims, bilateral agreements, and


Aceves 245

* Protest all territorial sea claims in excess of twelve nautical miles and some
greater than three, especially those overlapping an international navigation strait.

¢ Protest all claims inhibiting navigation over waters that the United States
viewed as a high seas corridor.

* Protest all claims requiring advance notification for warships or restricting
warship passage in any way.

* Protest rules for “innocent passage” through the territorial sea which were
substantially different from established provisions.

¢ Protest assertions of jurisdiction over navigation and overflight beyond the
territorial sea.

The memorandum noted that if the United States did not protest what it
believed to be illegal violations of its maritime rights, such inaction would imply
ratification through acquiescence. It was subsequently noted by government
officials that the FON program was specifically undertaken because diplomatic
protests seemed ineffective.®

Thus, the Freedom of Navigation program was based on the legal position
that a state may lose its rights under international law if it does not maintain a
consistent maritime policy and protest what it perceives to be excessive claims.
For example, if'a state were to assert an excessive maritime claim and the United
States avoided operating its ships and aircraft in the disputed area, the U.S.
inaction would eventually contribute to the formation of new customary
international law. However, such a development can be averted successfully by
states who continuously object to it.

The importance of maintaining a consistent policy was exemplified in 1982
during an evaluation of proposed FON operations that were to be conducted
from 1 October 1982 through 31 March 1983. In reviewing the proposed
navigation and overflight program that was to be conducted in the Black Sea,
Rear Admiral S.H. Packer, acting Deputy Chief of Naval Operations, argued
that in order to maintain a uniform policy the United States should not challenge
Bulgaria’s excessive maritime claims unless it challenged the Soviet Union’s as
well.’ According to Admiral Packer, the Navy firmly adhered to the view that
a challenge to Bulgaria’s warship notification regime without challenging the
identical Soviet claim in the Black Sea would be counterproductive and under-
mine the appearance of U.S. resolve in the face of illegal initiatives. Such passivity
would suggest reluctance to challenge the illegal maritime arrogations of power-
ful adversaries, which in turn could well be construed as acquiescence to such
claims. Admiral Packer noted that “although the Navy is committed to the
proposition that eventually all excessive maritime claims must be challenged, no
challenge can be either considered or executed in isolation from all pertinent
political, military, geographic or juridical factors.” In this case, those factors
substantially outweighed the benefit that might be gained by challenging
Bulgaria's claims alone.


12 Readings on International Law

offered earlier—that for the most part international law is obeyed and that even
in domestic legal systems the principal motivating force for obedience is not the
fear of sanctions—we may note nevertheless that some small steps are being taken
toward creating and making use both of third-party adjudicative mechanisms for
international disputes and of means for enforcing their judgments. In so noting
them I do not mean to overemphasize the role of third-party dispute settlement
in the international arena, since the traditional methods of diplomatic negotia-
tion, good offices, conciliation, and mediation remain the cornerstone of peaceful
settlement of disputes between States.

Nevertheless, the hope following World War I was that the newly created
Permanent Court of International Justice would serve as a judicial forum to which
States would take their international disputes. This, unfortunately, proved a false
hope. In the entire life of that court and ofits successor, the International Court
of Justice, only a handful of cases has been submitted and most of these have
involved matters of little consequence. The principal reason, of course, is that a
nation cannot be brought before the court without its consent, and States are
reluctant to submit matters of great national significance to third-party adjudica-
tion. Additionally, proceedings before the Court are long and tedious, which is
not very helpful when speedy resolution of a controversy is needed. The Court
has recently revised its rules to make it somewhat easier for States to submit cases
and receive relatively quick decisions. Whether as a result of this change or
because of other factors, the Court now has on its docket a record number of
cases awaiting decision.

A number of initiatives have been taken in other areas to create mechanisms
for peaceful settlement of disputes:

* The European Community has a well-developed court system, whose
decrees are enforced in the courts of member States.

* The World Bank has negotiated a treaty providing a process for arbitration.
of international investment disputes.” This treaty has gained wide acceptance and
adherence both among capital-importing and capital-exporting States. A unique
aspect of the treaty is that it elevates disputes between States and private investors
(usually multinational corporations) to the international plane, giving the latter
equal status with States before this international arbitral tribunal. In addition, its
judgments are enforceable in the domestic courts of any States that are parties to
the Convention.

¢ The United Nations has sponsored a multilateral treaty that obligates
member States to enforce other international arbitral awards in their domestic
courts. This treaty has enabled some American foreign investors to enforce
international arbitral awards against foreign States even when the State has refused
to participate in the arbitration.

* Some recent multilateral law-making treaties contain dispute settlement
provisions. A leading example is the 1982 United Nations Convention on the


214 Readings on International Law

would be couched in terms of the recognition of the state of belligerency existent
between the North and the United Nations Command in the South. Diplomatic
protests of the excessive baseline claims should expressly reserve the rights of
innocent passage through the territorial sea. However, operational realities
dictate that, as a practical matter, these rights have been suspended, but not
extinguished, by the prolonged state of belligerency which the Armistice secured.
Further, with the concurrence of South Korea, their Northwest Island resupply
missions should be retroactively reported on a regular basis to document innocent
passage transits on the west coast. To avoid the appearance of inconsistency, it
may be pointed out that these transits are provided for within the implied terms
of the Armistice Agreement.

The timing of these FON assertion exercises is a critical factor which warrants
careful consideration by the operational planner. Obviously, these adversarial,
but not purposely provocative, operations cannot take place in a vacuum. A
propitious time to initiate the limited, hypothetical FON operations outlined,
so as to minimize unexpected North Korean reaction, is to make it a part of
regularly scheduled U.S. operations in the area, such as the annual “Team Spirit”
exercise. This appearance of U.S. naval forces is a routine event which would
not arouse undue apprehension on the part of the North, and it appears that
FON Program goals are compatible with exercise objectives.

Risk/Benefit Analysis. It is clear that the risk in conducting these operations
would be substantial, but the steps recommended, if implemented, should
ameliorate any legitimate perceptions of provocation on the part of the North
Koreans. In light of the sensitivity of this area, the political decision to proceed
with this assertion of navigational rights operation would be very difficult.
However, in this author’s opinion, there are compelling reasons which would
justify the risks entailed.

One important reason why the North Korean claims need to be resisted
through physical assertion operations is to maintain the integrity and credibility
of the FON Program. In light of the high risk/significant threat scenario outlined,
it is hoped that North Korean claims would not be relegated to the “too hard”
category. It is one thing to challenge the 200-mile territorial sea claim of a
relatively benign South American neighbor, for instance, and quite another to
face the unpredictable consequences of an encounter with the consistently erratic,
aggressively minded North Koreans. This is not meant to imply that all FON
operations undertaken to date have been “milk runs.” Quite to the contrary, the
recent Black Sea confrontation, the ongoing dangerous Persian Gulf operations,
and the repeated forays below the Sidra “line of death” would quickly dispel any
such notion. However, it is essential that all excessive claims be routinely
challenged in a deliberate, albeit cautious, manner. The adoption of this proposal
would pay handsome dividends in the critical Northeast Asian area.


222 Readings on International Law

contains vast but declining stocks of valuable bottomfish, especially pollock. The
annual pollock yield of the Doughnut Hole, two million metric tons, is equal to
that from U.S. Bering Sea EEZ waters in their entirety.'* The degree to which
coastal states may protect migratory species such as pollock from third-party
fishing on the high seas—such as by Japan and Poland in the Doughnut Hole—is
as yet unresolved as a matter of international law.'®

Another important factor for both governments was the need to delimit clearly
those areas of their respective continental shelves lying beyond two hundred

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8 Readings on International Law

The most important judicial decisions are judgments of the International Court
of Justice, sitting at The Hague, and its predecessor, the Permanent Court of
International Justice. The decisions of arbitral tribunals also constitute judicial
decisions in this sense, inasmuch as these bodies are in fact judicial institutions
and render their decisions on the basis of law and not as attempted compromises
of conflicting claims. In addition, the opinions of national courts on questions of
international law are entitled to considerable weight, even though one might
expect them to take a somewhat more one-sided view of the law than would a
truly international tribunal.

The teachings, or scholarly writings, of the most highly qualified publicists of
the various nations perform a valuable service. Not only do they criticize and
clarify ambiguities in the law, they also synthesize vast amounts of treaty law,
State practice, and judicial decisions and reduce them to manageable proportions.
However, one must exercise a degree of caution in using such material. Scholars
may be subject to personal as well as national biases, and in their works it is often
difficult to be sure whether they are talking about what the law ought to be or
what it is. I personally prefer to consider this fifth “source” as not really a source
at all but rather evidence of what the law is.

Contemporary Trends in International Law

With this much as background, let us now turn to some of the current
developments and trends in international law.

The Expanding “Reach” of International Law. Our definition of international
law stated that it is a body of rules or norms governing the legal relationships
between States. The emphasis on States as such is certainly consistent with the
environment in which the body of rules originally developed. That world was
made up of independent, equal, and sovereign States, the only actors in the
international arena. In the international arena, unlike in domestic societies,
individuals (unless representatives of States) had no role to play and no standing
to assert a legal right. An individual obtained rights only derivatively, by virtue
of the protection afforded him or her by nationality.

As an example, one of the firmly established rules of international law is that
an alien residing in a foreign State is entitled to the protection of the State where
he or she resides. If that State fails to live up to its obligations (as, for example,
by arbitrary seizure of property or imprisonment without a fair trial), then it has
violated this international norm, and the State of nationality has a right to bring
a claim for reparation. But it is the State, technically, that does so, not the
individual; under the international legal system, it is the State of nationality that
has been wronged, not the individual. Thus the State of nationality has absolute


MacDonald 91

included in an American proposal on fishing and charged that the proposal
“sought to perpetuate an unjust practice which many under-developed or former
non-self-governing countries had been unable to combat.” In its opposition to
the American proposal for a 3-mile limit, Iran not only stated that a 3-mile limit
would exclusively serve the interests of the maritime powers, but charged that
“in fact, they were laying claim to hegemony of the high seas.” Furthermore,
Iran claimed that many States were “under-developed” because of “the policy
of colonialism followed by the States which benefited from the freedom of the
seas,”26

Iran, in pointing out inequalities that have developed through time, never-
theless indicated that “a new era had begun” and that “the under-developed
States of Asia and Africa, including all those which had recently become
independent, were ready to cooperate in all honesty and without bitterness with
the great maritime States if they showed understanding.””” Iran called for the
progressive development of international law to be achieved through “com-
promise in a spirit of progressive realism.””* Iran recognized that inequalities
existed and that maritime powers were pursuing their own interests, but called
for the interests of the developing States to be recognized as well.

Iran, while noting that “unjust practices and customs” did exist, did not
condemn international law. Instead, Iran called for its progressive development.
In opposing the positions assumed by the maritime powers, Iran employed
traditional international legal principles and cited American precedents and the
work of the International Law Commission.”

Iran and Saudi Arabia did participate in the 1958 United Nations Confgrence
on the Law of the Sea, but the law of the sea in the Persian Gulf is not directly
tied to the 1958 law of the sea conventions. Iran did sign the four conventions,
with certain reservations, but did not ratify any of them because of its Gulf
neighbors’ opposition to the conventions. Saudi Arabia and the other Arab Gulf
States refused to sign the 1958 conventions because of the single article providing
for Israeli access through the Gulf of Aqaba and Strait of Tiran. In other words,
despite Iranian and Saudi participation and negotiations, their law of the sea claims
were primarily determined by the regional context.

The Third United Nations Conference on the Law of the Sea. At the Third United
Nations Conference on the Law of the Seas (UNCLOS III) Iran and Saudi Arabia
have each actively participated as they did in the first two United Nations
conferences. Each has assumed what might be termed a Third World stance on
such representative issues as the breadth of the territorial sea, marine scientific
research, and the implementation of the concept of “the common heritage of
mankind.” The Iranian delegate, for example, called for a strong International
Sea-Bed Authority with its powers being “as wide as possible.”*?


Bunn 341

* It is hard to conceive a scenario in which the rule would prevent us from
protecting our vital interests. It is not inflexible, as the creativity of American
precedents suggests.

© The rule’s opposition to aggression means that it generally favors the status
quo. We have become a status quo power. We usually support the existing
territorial and political integrity of nation States. We usually urge the peaceful
settlement of disputes. In these respects, the rule serves our foreign policy goals
more often, probably, than those of the Soviet Union.

¢ Since World War II, the rule has been part of a broader effort to prevent
hostilities of a sort which might escalate to a third world war and a nuclear
exchange. That effort continues to be essential.

Professor Bunn was serving as the Stockton Chairholder at the Naval War College when this
article was first published.

Notes

1, MOORE, 2 A DIGEST OF INTERNATIONAL LAW 409-412 (1906); HERTSLET, 29 BRITISH AND
FOREIGN STATE PAPERS 1129, 1137-1138 (1857); and Id., 30 at 193-194, 201 (1858).

2. 22 TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE INTERNATIONAL MILITARY
‘TRIBUNAL: PROCEEDINGS, 27 AUGUST-1 OCTOBER 1946 411, 427-428, 446-450, 460-461, 463 (1948).

3, U.N. Charter, Arts. 2(4) and 51.

4. Inter-American Treaty of Reciprocal Assistance (Rio Treaty), 62 Stat. 1681; 21 U.N.T.S. 77 (1947);
Charter of Organization of American States, 2 U.S.T. 2394; 119 U.N.T'S. 3 (1948).

5. Text of Falkland Speech by Prime Minister Thatcher in House of Commons, The New York Times,
21 May 1982, p. A10.

6. HAIG, CAVEAT 266, 268-269, 276, 291 (1984); see also Franck, Dulce et Decorum Est: The Strategic
Role of Legal Principles in the Falklands War, Am. J. Int'l L, 109, 111-114(anuary 1983).

7. UN, Security Council Resolution 502, 3 April 1982. The European Economic Community voted
to impose economic and military sanctions on Argentina on 10 April 1982, The New York Times, 11 April
1982, sec. 1, at 1, 12; Franck, at 114-124,

8 U.N, Charter, Art. 51.

9. AKEHURST, A MODERN INTRODUCTION TO INTERNATIONAL LAW 242-243 (1984); Cutler,
The Right to Intervene, 96, 100-101 Foreign Affairs (Fall 1985).

10, Letter of D.R. Robinson, The Legal Advisor to the State Department, to Chairman, Committee on
Grenada, section on Intemational Law and Practice, American Bar Association, The International Lawyer
381-387 (Spring 1984).

11. 145 Waldock, The Regulations of the Use of Force by Individual States in International Law, Recueil de
Cours, 451-467 (1952); HENKIN INTERNATIONAL LAW, CASES AND MATERIALS 922-924 (1980).

12, U.N, Charter, Chap. VII.

13. U.N, Charter, Art. 53.

14, Whiteman, U.S. Quarantine of Cuba in Missile Crisis of 1962, 4 DIGEST OF INTERNATIONAL LAW.
523-524 (1965); Meeker, Defensive Quarantine and the Lav, Am. J. Int'l L. 515, 523-524 (July 1963); OAS
Intervention in Dominican Republic in 1965, 4 ILM. 594 (Merillat ed. 1965); 52 U.S. Dept. of State Bulletin
862 (1986); Stevenson, Principles of U.N.-OAS Relationship in the Dominican Republic, 52 U.S. Dept. of State
Bulletin 975-977. Compare 1968 Warsaw Pact Organization's intervention in Czechoslovakia, The New York
Times, 27 September 1968. See HENKIN supra n. 11 at 926-929, 951-953.

15. U.N.G.A. Resolution 38/7, 2 November 1983; Richard Bemstein, U.N. Assembly Adopts Measure
"Deeply Deploring’ Invasion of Ise, The New York Times, 3 November 1983, p. A21.

16. U.S. Navy Regulations, 1973, Art. 0915.

17, Roach, Rules of Engagement, Naval War College Review 46, 49-50 (January-February 1983); Naval
‘War College, Operations Dept., “General Rules of Engagement,” Extracts from Legal Sources, NWC-1008
(1985) p. 14-1.

18. Meeker, supra n. 14 at 523-524,


Goldie 399

40, See nn, 28 and 36 and the text accompanying them.
41. See U.N. Document S/12126 (mimeo, 6 July 1976). See also:

a. Letter dated 6 July 1976 from the Assistant Executive Secretary of the Organization of Aftica Unity
to the United Nations addressed to the President of the Security Council (§/12126).

b, Letter dated 6 July 1976 from the Permanent Representative of Mauritania to the United Nations
address to the President of the Security Council (S/12128).

¢. Letter dated 4 July 1976 fom the Permanent Representative of Israel to the United Nations
addressed to the Secretary-General (S/12123).

d. Letter dated 5 July 1976 from the Charge d’Affaires, a.i,, of the Permanent Mission of Uganda to
the United Nations addressed to the President of the Security Council (S/12124) S/Agenda/1942 (12 July
1976).

43, Draft Resolution submitted by the United Kingdom and the United States, U.N. Document S/12138
(12 July 1976). Draft Resolution submitted by Benin, Libyan Arab Republic and the United Republic of
‘Tanzania, U.N. Document $/12139 (12 July 1976).


Index 619

disruptive v. coercive, 409
group, 378
individual, 378, 392
international, 378, 402, 406
international and transnational terrorism distinguished, 378
nonterritorial, 406-407
state-sponsored. See State-sponsored terrorism.
transnational, 378, 406
Terrorists
as combatants, 462-463
autonomous nonstate actors, 405,
distinguishing terrorists, guerrillas, and freedom fighters, 378, 402, 404-405, 449
groups or individuals controlled by a sovereign State, 405,
‘Thailand,American bases in, 20
‘Thatcher, Prime Minister Margaret, 30, 333-334
‘Thompson, Michael, 232, 237
Titarenko, Soviet spokesperson Mikhail, 239
Tlatelolco Treaty of 1967, 291
de Tocqueville, Alexis, 327, 328
Tokyo (1968) antihijacking convention, 378, 394, 403
Tokyo Maru, 121
Tosa Maru, 122
‘Tovar, Hugh, 457
Tower, Senator John, 509
‘Toxins as biological weapons, 504, 507-508
‘Transnational terrorism, 378, 406

‘Treaties, definition of, 7

Treaty of Friendship, Cooperation and Mutual Assistance between Finland and the Soviet Union,
525

‘Treaty of Mutual Cooperation and Security between United States and Japan of 1960, 562

Treaty of Portsmouth of 1905, 233

Treaty of Tordesillas, 265

Tripoli, Bey of, 357-358

Trudeau, Prime Minister Pierre, 382

Truman Doctrine, 346

Truman Proclamation, 51-52, 89, 161, 183, 224, 269

Truman, President Harry, 160

Tunisia, Achille Lauro case, 339

U

‘Uganda, Entebbe incident, 396, 419, 460
Ukraine, as legal successor to IncSea Agreement, 580-581
Uniform Interpretation of Rules of International Law Governing Innocent Passage, 257-258
Union of Soviet Socialist Republics. See Soviet Union.
United Kingdom. See Great Britain; Ireland.
U.N. Chatter, 7, 9, 13, 264, 282, 326
Article 2, 327, 370
Article 2(3), 27, 458, 459
Article 2(4), 14, 368, 371, 458, 459, 533
Article 2(7), 368
Article 51, 14-15, 16, 368, 369-370, 370, 371, 372, 458, 459, 533, 535
‘Article 53, 372
collective action, 42
collective security, 30
collective self-defense, 334


620 Index

inherent right of self-defense, 333
military enforcement mechanism, 333
Security Council use of peace forces, 335
violations, 29
U.N. Conferences
Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law
Applicable to Armed Conflicts, 468
First Conference on the Law of the Sea (1958), 10, 22, 161, 269-271
Second Conference on the Law of the Sea (1960), 162, 271
Third Conference on the Law of the Sea (UNCLOS II), 10, 34, 63-72, 73-82, 120, 163-167, 271,
272, 281, 438
common goals of the Soviet Union and United States, 189-190
Draft Convention (Informal Text), 97, 127-128
military aspects in the draft Convention, 97-99
national security issues, 114
U.N. Conventions
Convention on the Continental Shelf (1958), 62, 63, 162, 224, 271
Convention on Crimes against Internationally Protected Persons, Including Diplomatic Agents,
379-380, 390, 418
Convention on the Law of the Sea (1982), articles
Article 144, 148
Article 17, 190
Article 19, 190, 194, 250
Article 2, 267
Article 21, 191, 192
Article 22, 192
Article 22, differences in English and Russian text, 254-255
Article 24, 191
Article 25, 191
Article 30, 191
Article 33, 284
Article 35, 98, 283-283
Article 46, 273
Article 47, 273
Article 48, 273
Article 49, 273, 292
Article 5 of Annex III, 148
Article 52, 292
Article 53, 292
Article 56, 285, 286
Article 58, 273, 285, 286
Article 60, 289, 290-291, 439
Article 73, 443
Article 87, 285-286
Article 88 to 115, 185
Article 89, 285
Article 101, 441
Part III, 281-282, 283
Part XI, 274, 297
Convention on the Law of the Sea (1982), provisions
artificial islands, 438-440
bilateral consultations, 246
customary international law, 272
exchange of artificial islands information and technology, 149-150
exchange of fisheries information and technology, 149
piracy, 338, 441, 445,
rights and obligations of belligerents, 276-277
rights and obligations of neutrals, 276-277



602 Index
L

Land warfare, Law of, 548. See also Law of armed conflict.
Landersman, Captain S.D., 132
Landlocked and Geographically Disadvantaged States (LL/GDS), 65
Laos, Soviet use of biological biochemical weapons in, 505
Laqueur, Walter, 456-457
Lauterpacht, Professor, 460-461
Law enforcement, self-defense in
exceptions, 338
general rules, 337-338
piracy, 338
resource-protection jurisdiction, 337
sovereign authority, 337
Law of armed conflict. See also Law of armed conflict at sea; Surrender.
aerial bombardment issues, 468-469, 470-471
ancient Greek history of, 544
ancient Israeli history of, 543-544
Brussels Conference of 1874, 546
changing circumstances and forces, 468-469
changing technology, 468-469, 473-474
civil wars, 468
combatants, obligations of, 467-468
compliance, 475
deception, use of. See Deception.
Declaration of St. Petersburg, 534, 546
environmental impact, 533, 534-535, 536-537, 537, 537-538
development of restrictions, 534-535
Geneva Convention on the Use of Environmental Modification Techniques (ENMOD) of 1977,
535-536
Geneva Convention of 1864, 467
Geneva Conventions of 1929, 468
Geneva Conventions of 1949. See Geneva Conventions of 1949.
Protocols Additional of 1977. See Geneva Conventions of 1949. Geneva Protocol of 1925, 468, 472
guarantees for captured combatants of prisoner-of-war status, 476
Hague Conventions of 1907, 467-468
Convention IV Respecting the Laws and Customs of War on Land, 467-468
historical background, 467-469, 543-545
identification issues, 474
in Middle Ages, 544
international conflicts, 468
Keiegsordnung of Lucerne of 1499, 544
Kriegsorduung of Zurich of 1444, 544
Tese majeste, 544
Lieber Code, U.S., 467, 534, 545-546
Manual on the Laws of War on Land (“Oxford Manual”), 546
necessity principle, 82, 336-337, 370, 459-460, 461, 463, 469, 470, 471, 483
noncombatants, protections for, 457, 467, 468, 469, 471, 496
noninternational conflicts, 468, 475. See also Liberation movements, national.
prohibitions against attacking dangerous installations, 476
proportionality principle, 23, 370, 453, 461, 463, 470-471, 483
protection of medical transportation, 473-474
reciprocity principle, 467, 475
right of families to learn fate of relatives, 476
role of the Intemational Committee of the Red Cross (ICRC) in developing, 469, 473
Rules of Air Warfare drafted at Hague, 470
rules of engagement (ROE). See Rules of engagement (ROE).


558 Readings on International Law

Japan-PRC treaty also contains a clause opposing “hegemony” in Asia by any
nation-an unmistakable reference to the Soviet Union. Initially, Japan would not
sign the treaty because the antihegemony clause provoked a very hostile reaction
in Moscow, Not only did the Soviets denounce the treaty, but they repeatedly
warned ofa reassessment of their policy toward Japan if the latter signed a treaty
containing the objectionable clause. China refused to remove the antihegemony
clause and a 3-year impasse in treaty negotiations ensued. Finally, Japan agreed
to accept the antihegemony clause, although it insisted on an additional clause
stating that the treaty did not affect either party’s relations with third countries,
The compromise solution, if it can be called a compromise, was still a diplomatic
victory for the PRC, and the Soviets were predictably upset. Statements in the
official Soviet press warned of the treaty’s “dangerous character,” and the Soviet
Ambassador to Japan returned to Moscow for an unusually prolonged stay of 4
months.

The Soviet Union is deeply concerned about the prospects of Sino-Japanese
accord. Such accord would not only accelerate the PRC’s industrial develop-
ment, but it would also facilitate what the Soviets view as the ultimate PRC goal
of replacing the United States as Japan’s protection against the Soviet threat.*
Soviet fears may be overdrawn, but they are not baseless. As Japan and the PRC.
strengthen their political and economic ties, the latter will probably become more
and more vocal in support of Japan’s security interests. This, in turn, could cause
Tokyo to view Peking’s aggressive anti-Soviet policy as the most effective
counterforce against Soviet influence.

The problem for Japan is a delicate one: how to cultivate its relationship with
China without unduly antagonizing the Soviet Union. If Moscow perceives that
Japan is encouraging China’s anti-Soviet objectives, Japan is likely to experience
a much greater Soviet threat than it must cope with at present. Needless to say,
such an escalation of tensions would put the United States right in the middle of
a difficult situation.

Fortunately, the United States need not wait and watch while events unfold
in East Asia. American policy is still a critical factor in the stability, or instability,
of the area. Particularly important is the U.S. relationship with Japan, because
American support can enable Japan to move away from PRC influence if
circumstances require it. Furthermore, U.S. attitudes toward the PRC and the
Soviet Union can affect Japan’s relations with those two countries, assuming that
the U.S.-Japan alliance remains essentially unchanged. U.S. leverage in Asian
affairs cannot be taken for granted, however. It is essential that the United States
coordinate its East Asian policy with that of Japan. Unless Tokyo and Washington
undertake to promote mutual objectives, the two Governments may find
themselves pursuing Asian policies that are not complementary. To avoid such
a situation, the United States should take the initiative now to discuss with Japan


416 Readings on International Law

military personnel to deliver military material, equipment or supplies, to train local
Jaw enforcement officials on the proper use and care of such material or equipment,
and to maintain such material or equipment; aerial photographic reconnaissance
flights and other like activities.”

Legal Difficulties. While certain aspects of the law are clear, there are others that
are undergoing close examination to remove ambiguities. Both the Department
of Justice and the Department of Defense continue attempts to come to grips
with this uncertainty in efforts to coordinate their preparations for and response
to domestic terrorism.” The actions considered center on the use of military
force with their civilian counterparts before actual use of the armed forces has
been authorized under the provisions outlined above, inasmuch as, prior to their
being invoked, the Posse Comitatus Act forbids civilian authorities from using the
military to carry out their own responsibilities.

One aspect of concern for the military is to determine at what point military
observers could be sent to the location of an event without violating the law.
The Department of Justice appears to endorse the finding of the United States vs.
Red Feather case while indicating that some disagreement exists about what
additional activities the military observer could engage in (e.g., maintenance of
equipment as it is being used by civilian authorities) without going beyond the
limits of the law. Mere presence at the scene would not be viewed as a violation
of the Posse Comitatus Act. It was also noted that in the court’s review of the cases
resulting from the Wounded Knee incident," it was not explicitly set forth that
the impending use of military force was needed as a justification for the presence
of military observers. Concern had also been voiced about the propriety ofliaison
for the purpose of sharing intelligence concerning a terrorist incident. The
prevailing thought is that the prohibition of use of the military by civilian
authorities to execute laws does not bar contact for the sole purpose of enabling
the military to obtain knowledge relating to a situation. If it appears that it may
be necessary to preposition troops in anticipation of their actual employment,
such prepositioning is not determined to involve actual enforcement and,
therefore, would not be considered illegal. Likewise, reconnaissance by the
military, independent of civilian law enforcement, would be considered legal in
the sense that it was done with the expectation that forces would be needed to
augment local authorities.

The foregoing discussion indicates that the use of military force must be an
option taken after due consideration of the social, legal and political context of
an incident. The President, satisfied that the employment of military force is
needed, would issue the necessary orders through the Secretary of the Army who
is the Executive Agent for the use of military forces in civil disturbances. These
forces are assigned or committed to him through the Chief of Staff, U.S. Army
(CSA).’


148 Readings on International Law

development of technology, and the issue of the deep seabed as the “common
heritage of all mankind,” versus the principle of freedom of the high seas.

Technology transfer as a process is a straightforward matter. It is the concept
of passing scientific knowledge and technology from one State or organization
to another. In the Law of the Sea Treaty, the heart of the matter is contained in
Article 144, Transfer of Technology. The article states:*

1. The Authority (the international organization established to regulate the deep
seabed) shall take measures in accordance with this Convention (the Treaty):

{a) to acquire technology and scientific knowledge relating to activities in the
Area (the deep seabed); and

(b) to promote and encourage the transfer to developing States of such
technology and scientific knowledge so that all States Parties benefit therefrom.

The broad principles of Article 144 are specified in Annex III to the Treaty,
which deals with basic conditions of prospecting, exploring and exploiting the
deep seabed. In Article 5 of Annex III, also entitled Transfer of Technology, very
detailed instructions are listed dealing with mandatory transfer of marine tech-
nology. Article 5 specifies that:>

* Applicants (Private corporations or state-run companies) will provide the
Authority with a general description of equipment and methods pertaining to
their specific mining project.

* Applicants and operators will inform the Authority whenever “substantial
technological change or innovation” is introduced.

* Operators will make technology available to the Enterprise (the mining arm.
of the Authority) “on fair and reasonable commercial terms and conditions.”

* Such technology could be transferred to the developing States by the
Enterprise/Authority in cases where the developing State had applied for the
tight to participate in the deep seabed mining operation.

* Technology transfer provisions would be in force for the first 10 years after
the Enterprise begins commercial production of minerals from the resources of
the deep seabed.

* Technology is defined very broadly, to include specialized equipment and
technical know-how, including manuals, designs, operating instructions, train-
ing, and technical advice and assistance necessary to assemble, maintain, and
operate a viable system and the legal right to use these items for that purpose on
a nonexclusive basis.

Marine Technology
The stakes involved in the issue are enormous. The strategic importance of

the technology is immense, particularly since it represents the ability to assure a
nation a stable, virtually inexhaustible supply of cobalt (jet engines and other


Index 589

signatory to the Memorandum of Understanding on Hijacking of Aircraft and Vessels and Other
Offenses (1973), 381
USS. quarantine, 136, 336

Dale, Commodore Richard, 358
Deception
as breach of good faith, 492, 493, 495,
Baralong deception of German U-boat, 497
British Q-ship program, 498-499
colors, true and false, 497
distinguishing between legal and illegal deception, 491-499
perfidy defined, 495-496
permissible ruses, 496-497
USS. Air Force policy, 500
USS. Army policy, 496, 500
U.S. Navy method of analysis, 493-494
U.S. Navy policy (NWP 9), 493-494, 495-496
Emden, disguised German cruiser attack, 498
French frigate Sybille, 497, 499
Iraqi ruses during the Iraq-Iran war, 542, 549
surprise element, 497-498
tactical, 491
Declaration of St, Petersburg of 1868, 534, 546
Deep-water drilling, 63
Defense, U.S, Department of
coordination with FBI in countering civil disturbances, 417
Delta Team, U.S. Army counter-terrorist force, 423
Denmark
mare clausumt, 267
restrictions on warships in straits, 101
Desert Storm, Operation, 16, 503, 533, 534, 537, 541-543, 549, 550
Diego Silang, 122, 125
Dinstein, Yoram, 15
Diplomats
conventions and agreements regarding crimes against, 379-380, 403
immunity practices, 40-41
OAS Convention to Prevent and Punish Acts of Terrorism Taking the Form of Crimes Against
Persons and Related Extortion that Are of Intemational Significance(1971), 379-380, 403, 418
U.N. Convention on Crimes Against Internationally Protected Persons, Including Diplomatic
Agents (1973), 379-380, 390, 403, 418
Discrimination principle, 453, 457
Djerejian, Edward (White House spokesman), 250
Domestic terrorism, 402, 406, 407-408. See also United States v. Red Feather (Wounded Knee
incident).
and law of armed conflict, 475
civil disturbances, 417-418
claims of combatant status, 475
Congressional representatives, crimes against, 418-419
coordination of Federal Bureau of Investigation and Department of Defense, 417
escalation of incidents, 417
military enforcement of order, 417
military involvement in counter-terrorism, 411-426, 413-414
“Garden Plot” plan for use of force, 417, 419
active role prohibitions, 415
passive role permitted, 415-416


Robertson 295
economic zone,”!”? and they must observe the same types of rules and regulations
that are applicable in transit passage through straits.”*

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.

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 certain straits where
the transit passage [regime?] applies or through archipelagic sea lanes.”

In interpreting what the United States manual means when it states “activities
that are incident to their normal mode,” one needs to turn to the provisions of
the manual dealing with transit passage 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."

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 passage.!7* Usually there is only one
entrance and one exit.'”? 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


Hall 361

United States. The constitutional issue was much more narrow: whether the
President acted within the bounds of his authority to make war unilaterally, a
question that can be answered without reference to whether the President’s
actions were politic or wise.°>

By 1986, President Reagan had been advised that the government of Libya
had supported terrorist attacks on Americans in Vienna, Rome, and West Berlin.
this pattern of aggression by Libya against American citizens arguably established
a state of de facto war between Libya and the United States. Whether or not a
state of war existed, the President’s information supported the inference that
Libya had undertaken a course of action that had harmed Americans. This course
of conduct suggested a continuing threat to Americans from Libya. The President
could have presented this information to Congress, seeking a declaration of war.
But he did not, considering the threat to Americans sufficiently imminent to
justify the use of force without a congressional declaration of war.

Critics of the President’s decision to use force against Libya might argue that
the President’s determination of imminent threat was too tenuous to be entitled
to constitutional sanctification. The President, they would claim, did not have
in hand any indication of a specific terrorist attack to be executed against
Americans on any specific future date. They would say that what the President
had, at most, was a generalized indication that a terrorist attack against Americans
might be executed sometime in the future. The critics would argue that for the
President to characterize such a future attack as imminent because inevitable,
would be hyperbolic justification; a standard of inevitability would grant the
President carte blanche to use his defensive powers to initiate a miliary offense.
The air strikes against Libya, they would conclude, were labelled defensive but
were in fact offensive and therefore unconstitutional.

The answer to this criticism is that the Constitution does not assign a specific
deadline or minimum probability level as the standard to determine when a threat
is sufficiently imminent to justify presidential war making. The Constitution did
not require the President to certify to Congress that Libya would have attacked
Americans abroad in May of 1986, for example, but for his preemptive strike in
April. If anything is clear from the Framers’ debates and the courts’ infrequent
clarifications of the constitutional war-making powers, it is that the Constitution
establishes no such fixed standard to mark the limit of presidential war-making
authority. No authoritative source suggests that the President must resolve
uncertainly in favor of a potentially hostile force by doing nothing. Rather, the
Constitution allows the President wide latitude to decide ifan imminent threat,
however manifested, is too grave to await a congressional declaration of war and
to determine whether the actions of a foreign State have crated a situation
requiring a military response.°* What this means is that critics of President
Reagan’s actions against Libya in 1986 misdirect their criticism when they argue
that the air strikes were unconstitutional; to the extent that they oppose the


Stavridis 151

transfer provisions of the Treaty, but many are sympathetic to the U.S. position,
especially Great Britain and West Germany, neither of whom have signed the
Treaty to date. On the other hand, some of the Western countries with advanced
marine technology seem willing to let the mandatory technology provisions
stand, notably France and Japan, both of whom signed the agreement. It is also
important to note that within the industrialized countries, a wide diversity of
opinion exists on the concept of mandatory transfer of technology, ranging from
the strong opposition of most corporations to support from many journalists and
academics, Overall, the industrial countries accept the concept that some tech-
nology transfer is an acceptable political and philosophical idea, but they are
unwilling to see the technology transferred via mandatory controls of the
Authority. The preference is for joint ventures, with the industrial corporations
holding the technology for some specified period of time and gradually transfer-
ring it to the developing countries. While some of the industrial countries are
willing to accept the mandatory technology transfer provisions of the Treaty, the
influence and attitude of the United States toward the document remains a
significant block to the emerging ocean regime in general and marine technology
transfer in particular.'>

Developing Countries

The developing countries see the issue of technology transfer as one of the
key ingredients of the New International Economic Order (NIEO), with the
Law of the Sea Treaty and its provisions for mandatory transfer as being on the
cutting edge of that movement. From a philosophical standpoint, the developing
countries are strongly in favor of increasing the flow of technology, via mandatory
regulation if necessary, to their economies; and they are also avid supporters of
the concept of the deep seabed as the “common heritage of all mankind.”!* They
see the mandatory technology transfer provisions as part of their opportunity to
share in the wealth, prosperity, and property that has accrued to the West.

The developing countries perceive the distribution of the world’s wealth as
unequal, and they seek to correct it via a political process, of which marine
technology transfer is part of the current agenda. From a pragmatic standpoint,
on the other hand, most developing countries are not yet ready for a large and
sudden influx of advanced marine technology. They have neither the trained
personnel nor the capital or infrastructure to effectively utilize it. The Law of the
Sea Treaty does establish a principle or precedent for mandatory transfer, and it
is therefore considered of critical importance by much of the developing world.
Specifically, the developing countries are calling for:'>

* Mandatory transfer of marine technology

* More information from the multinational corporations operating in the
developing countries and on the high seas


Stavridis 155

corporations, the industrial countries, and the developing countries. The exact
length of time could be tailored to the specific technology by a board composed
of representatives from business, the home country government, and a mixed
group from the industrial and the developing countries. During the period of
time the patent is in force, an extra tax could be levied by the Authority, the
funds from which could be used to sponsor educational benefits for the develop-
ing country students in Western educational institutions.

* Recognize and utilize the value of Western educational institutions in the
technology transfer process. It seems that many of the negotiators are overly
concerned with the hardware side of the technology transfer process. It is easy
to overlook the fact that thousands of college and graduate students are intimately
and constantly involved in very fundamental technology transfer every day in
‘Western universities and colleges. No hardware is useful for a developing country
without the personal expertise to make it work. In the United States, for example,
some major universities have a foreign student contingent as high as 17 percent.
There are currently in excess of 175,000 foreign students enrolled in the United
States alone. As the “baby boom” generation moves out of college age, many
educational institutions are scrambling for students. It seems that it would be
possible to use some of the profits from the advanced marine exploitation to
sponsor students of the developing world at American and other Western
universities. This would take the place of outright mandatory transfer of tech-
nology. The industrial countries would enrich their university systems, spread
their cultural influence, and satisfy developing world demands. The developing
countries would gain needed background technical skill to handle the technology
that would eventually be available in their countries,

* Utilize joint ventures to effect the gradual transfer of marine technology.
Rather than instituting a program that would mandate technology transfer to the
developing countries, it seems more effective in the long run to encourage joint
ventures on the part of the industrial corporations and the developing countries.
This would ensure a mutually profitable flow of technology to the developing
world, while still providing some protection to proprietary technology holders.
While Deep seabed mining will be beyond the capability of developing countries
for some time to come, joint ventures in fishing, artificial island construction,
ocean energy projects, and the like, seem plausible and mutually profitable.

Allow strict government prohibition of all security-sensitive marine tech-
nology transfers. Much discussion has taken place over the possibility of security
Jeaks as a result of the technology transfer process, These worries seem overdrawn
in the area of marine technology, particularly since the Treaty specifically allows
any government to shield sensitive technology for security purposes. However,
this protection must be respected if the industrial nations will agree to the concept
of marine technology transfer in the future.


422 Readings on International Law

Mogadishu. Other authors assigned the name “Operation Blue Light” to a
combined force of Army, Navy, Air Force and Marine personnel. It has been
written that the force called “Blue Light” was one established by order of
President Carter in March 1978. The force, under command of Col. Charles
Beckwith, is 200 men strong, given special weapons and training, and is retained
as a specialized force.*? Newsweek magazine also reported in 1977 that the
Pentagon maintained two special 600-man “Black Beret” Army Ranger bat-
talions at Fort Stewart, Georgia, and Fort Lewis, ‘Washington.

The true nature of the U.S. military counterterrorism capability began to
unfold in 1980 in the wake of the aborted Iranian rescue mission. The impression
created by the testimony of McGiffert was shattered like the wreckage of the
aircraft left behind in the desert. The review report presented by Adm. (Ret.)
James L. Holloway III, provided a narrative of the events leading up to the
mission and a clear indictment of many aspects of the operation.”

Immediately following the hostage seizure, a small planning cell working at
the Pentagon and augmented by two officers from the ground rescue force
(described above under the command of Col. Beckwith) began to formulate
concepts for military operations as directed by the Chairman, Joint Chiefs of Staff
(JCS). During the early stages, existing JCS contingency plans were employed
only relating to the use of intelligence assets and the selection of the ground
rescue force. Other significant areas, such as organization planning, integration
of concurrent planning by subordinate units and the determination of support
requirements were compartmentalized and based upon ad hoc arrangements.

Training was quickly undertaken and the helicopter option was recommended
as having the best chances of success. An Air Force general was appointed as a
special advisor to the task force based upon his recent experience in Iran. The
senior Marine officer involved in the operation was assigned to the Office of the
Chairman JCS and while not officially designated a member of the rescue task
force, became actively involved in mission planning especially relating to
helicopter training.

It was implied that this officer was in charge of the helicopter force during the
preparation phase, and he believed this to be so. However, COMJTF (Commander
Joint Task Force) may have thought differently, and it was evident the first two
months of training that much (if not all) of the COMJTF effort concerning
helicopter preparation and special mission capability was done through the general
officer who was thought to be the consultant on Iran. In mid-January 1980, the
role of senior Marine had evolved into that of overall helicopter force leader, and
since no other designation had been made, and at his request, he began to attend
the COMJTF planning meetings.”


20 Readings on International Law

on the basis of military needs and capabilities that do not take account of likely
arm’s length host-country reactions.

On another level, plans that envisage the use of nuclear weapons in cir-
cumstances short of those in which suicide is a rational act seem to assume that
that use is legal or, if illegal, not likely to raise significant political opposition.
But it is already clear in the United States that there is opposition, and that the
opposition is based at least in part on legal objections to the proposed uses. When
town meetings in Vermont vote for a nuclear freeze, Senators from Vermont are
concerned; when Senators from Vermont are concerned, entire congressional
delegations from New England, the North Middle West, and the Northwest
must be concerned. Have we forgotten that it was a congressional refusal to
supply the money that forced us out of Indo-China and made intervention in
Angola impossible? Are plans realistic when they disregard the apprehension of
those on whose cooperation the realization of those plans depends?

These examples are not hypothetical, they are real and in their way reflect the
kinds of interests that must be of concern to lawyers and wise planners. There is
no rational dispute about the importance of having general constituency support
for operational plans that affect that constituency, and in the United States the
constituency of the military is the entire U.S. population and many foreign
countries. Thus, there can be no rational dispute between planners and lawyers,
including international lawyers, who raise questions about foreign constituencies’
and national constituencies’ reactions to the implementation of various plans.
Lawyers’ objections reflect the crystallized experience of the society whose law
is involved. That is a very good indication of the likely reactions of those affected
by the realization of the plan. To fail to take account of lawyers’ problems, then,
is to fail to take account of a vital element of the real world; plans made in
disregard of the real world are doomed to fail.

I make these comments out of the deepest concern for U.S. national defense
interests. The use of American bases in Thailand to support a strike against
Kampuchea during the Mayagiiez crisis resulted in Thailand being forced by its
own constituencies to speed the timetable for American withdrawal in the
aftermath of Vietnam: The apparent misuse of the bases as the Thai interpreted
the base rights agreements did not help any significant American interest, it hurt.
Plans that might envisage manned bomber or low-flying missile transits of neutral
territory en route to Soviet targets force neutrals to consider defending themselves
from the American incursions into their territory, thus reducing the reliability of
those plans as a deterrent to Soviet actions and as a credible threat, as well as
forcing the neutrals involved to consider their broader relations with the United
States in the light of what they must perceive as our threat to their neutrality.
What a distorted position for the United States, the major upholder of national
sovereignty and freedom of choice, to be in!


Parks 475

Noninternational Wars. The Geneva Conventions of 1949 took a major step
forward in adopting the article 3 common to all four conventions that in theory
binds all parties to an internal conflict to certain minimum standards of conduct.
The concept was and is not without difficulties in interpretation and implemen-
tation. A sovereign State, ifa party to the conventions, is bound by the provisions
of the article: its guerrilla opponent is not. The absence of reciprocity destroys
what traditionally has been one of the more important forces for compliance
with the laws of war. A government, fighting for its life against externally
supported domestic foes committing acts of terrorism, is unlikely to take kindly
the suggestion that these acts be responded to with humanity. Moreover, despite
a provision to the contrary in common article 3, pronouncement by a govern-
ment that it will apply the standards of conduct declared in common article 3 to
a conflict has certain legal and political implications. Politically, it raises the
dignity of an opponent from that of a mob of bandits to one of a legitimately
recognized guerrilla force fighting for “national liberation” or “self-determina-
tion,” inviting additional outside support in what otherwise would be purely a
domestic affair. Legally, what ordinarily would be murder may become lawful
killing by a “combatant” in wartime. For these reasons the Symbionese Libera-
tion Army and the besieged Indians at Wounded Knee were quick to declare
their intention to abide by the Geneva Conventions in their respective “wars”
with the United States, while U.S. authorities were just as anxious to conclude
that the level of conflict necessary for such recognition was not met.

Whatever the objections to common article 3, two decades of national
liberation wars established that it did not go far enough in providing protection
to the victims of noninternational conflicts. Protocol II is intended to offer
additional delineation of this protection. The drafting and approval of its
provisions were accomplished in an atmosphere frequently charged with emotion
and political rhetoric, brought about in part by the participation for the first time
of a number of national liberation movements. Nonetheless, Protocol II—18
substantive articles as compared to the 91 of Protocol I—states in greater detail
than common article 3 both the minimum protection to be afforded the victims
of noninternational conflicts and the responsibilities of the parties to a conflict.
It specifically does not apply to riots, isolated and sporadic acts of violence, and
other acts of a similar nature. Otherwise it does not attempt to establish a
“threshold of violence” at which time Protocol II comes into effect, for that
question only can be answered through analysis of a particular situation in light
of myriad legal, historical, sociological, and political factors. Rather, it is an
attempt to minimize violence in noninternational conflicts and to limit suffering
by those not taking a direct part in the conflict. However, the history and nature
of insurgent tactics suggests that Protocol II will face a plethora of difficulties in
practical implementation.


Jacobson 161

200-mile territorial sea. Other Latin American countries followed the lead of Chile
and Peru, claiming either 200-mile resource zones or territorial seas out to 200
miles from shore. Meanwhile, twelve-mile territorial seas and extraterritorial
fishing zones were becoming increasingly popular around the globe.

In the midst of this expansionist trend, in the mid-1950s, the UN’s Interna-
tional Law Commission—a group of international law specialists charged with
the codification and progressive development of international law—began
preparing draft treaties on the law of the sea. The result: the First United Nations
Conference on the Law of the Sea (UNCLOS JD), held in Geneva in 1958. The
Conference adopted four new treaties, widely viewed at the time as “codifica-
tions” or restatements of the customary law of the sea. Figure 1 presents a profile
view of the basic jurisdictional scheme drawn by that package of treaties. The
United States is a party to each of the Geneva Conventions of the Law of the
Sea. Certain aspects of these treaties are significant to the present discussion.

HIGH SEAS WW

coNtrouoUs,
ZONE
on

TERRITOR.AL SEA

|
1 |
|

Figure

The Territorial Sea and Contiguous Zone Convention? reaffirmed the concept that
coastal nations have sovereignty over their territorial seas, subject to the innocent
passage doctrine. Passage of foreign submarines, however, is not “innocent”
unless the submarine is on the surface and flying its flag. Furthermore, passage of
aircraft over the territorial sea is never considered innocent passage. Thus, special
permission from the territorial sea sovereign is required for overflight or sub-
merged passage.

The delegations to UNCLOS I were unable to agree on a maximum breadth
for the territorial sea. Naval and maritime powers preferred a narrow, three-
nautical-mile limit in order to allow the greatest degree of mobility for vessels


568 Readings on International Law

interpretation of the strategy as a formal or predictable process of escalation,
implying therefore that no one escalatory step or any one system is essential to
its successful implementation.

Ifthe Russians can supply the missing details, so can we. It is normally assumed
that NATO’s initial and, indeed, preferred response will be conventional. This
is what chiefly distinguishes flexible response from the strategies which went
before. The Alliance will thus use conventional means to counter and defeat
limited or probing attacks. Nevertheless, because of the imbalances and defensive
weaknesses already described, NATO would rely on its nuclear arsenal to deter,
and if deterrence fails, to check any more formidable incursion. Supreme Allied
commanders continue to warn that early recourse to nuclear weapons is likely.®

No nuclear threat can be entirely credible unless nuclear use can offer the
prospect of positive advantage. Escalation must threaten the enemy with a
military setback (usually called a strategy of denial) or it must induce him to halt
his aggression by presenting the prospect of intolerable cost or risk. Nuclear denial
certainly underlaid NATO thinking in the days when the Alliance enjoyed an
effective monopoly of nuclear weapons in theater. Nuclear weapons would then
be seen as compensating directly for conventional weakness. But this former
advantage has long since been eroded by the growth of Soviet theater nuclear
capability. Although NATO has never formally rejected the denial option, its
credibility is open to question. The Western nuclear powers have come to rely
increasingly, therefore, on a strategy directed primarily against the enemy’s will,
the application of psychological shock, and the opening of vistas of uncontrolled
escalation. A plausible linkage between theater weapons and the central strategic
arsenal of the United States is an important factor in reinforcing these perceptions.

Clearly, Allied commanders will retain a spectrum of systems capable of
implementing this threat, including artillery-delivered weapons, dual-capable
aircraft, many with the range necessary for deep strike missions, as well as
theater-assigned strategic systems (Poseidon and Polaris) whose ambiguity serves
such a crucial purpose in linking the theater to the strategic arsenal of the United
States. The continued viability of flexible response rests heavily on the credibility
of these systems. But credibility is not an absolute term. We should not be asking
whether credible options remain, but whether those options are more or less
credible than those which preceded them. And here lies the nub of the problem.
Short-range or battlefield systems threaten to provoke a nuclear war in the heart
of Europe and to place the burden on the innocent rather than on the aggressor.
Reliance on such weapons is a divisive issue, hence, West German angst regarding
current modemization proposals? Strategic systems assigned to the theater
commander and the independent deterrents of Britain and France, because of
their ambiguity or because they represent a final guarantee of security, might be
held in reserve for some ultimate contingency. Soviet leaders could come to
question whether either of these weapon categories would be used. The value of


262 Readings on Intemational Law

upcoming meeting in Switzerland the following month would be Soviet military practices that jeopardized
American lives and property. See Department of State telegram, 13 February 1988, declassified 10 August 1989.

49. USS. Congress, Senate, Committee on Armed Services, Department of Defense Authorization for
Appropriations for Fiscal Year 1989, Hearings 97-98 (1988).

‘50. Department of State memorandum to Michael Armacost, 12 February 1988, declassified 10 August
1989,

51. Central Intelligence Agency telegram to the Department of State, 13 February 1988, declassified 28
November 1989.

52. Senate Armed Services Committee Hearing, p. 9

53. Office of the Legal Adviser, Department of State, *seclasiied 10 August 1989.

54, Id.

55, Letter from Secretary of State George Shultz to Senator Alan Cranston, 21 March 1988, declassified
5 June 1990.

56, Cushman, supra n. 38 at Al.

57. Senate Armed Services Committee Hearings, pp. 97-98.

58. At a Moscow news conference, Admiral Nikolai Markov, citing Soviet law, stated that the Soviet
Union did not recognize the right of innocent passage through its territorial waters in the Black Sea,

59. Interestingly, of the six official languages into which the Law of the Sea Convention was translated,
only the Arabic text was identical to the English; discrepancies with the English version existed in the Chinese,
French, Russian, and Spanish texts. For example, the French text of Article 22(1) reads, in a literal translation:
“The coastal State may, when the security of negotiation so dictates. .. .” The Spanish text reads, ““The Coastal State
may, when necessary taking into account the safety of negotiation. . . .” Department of State memorandum, 12
September 1988, declassified 10 August 1989. (Emphasis added.)

60. Id.

61. Department of State memorandum, 31 August 1988, declassified 10 August 1989.

62, Action Memorandum to the Secretary of State, 5 September 1989, déclassified 5 June 1990.

63, 28 LL.M. 877 (1989).

64. The Huebner-Malinin agreement governed the operations of the U.S. military liaison mission in East
Germany and of the Soviet mission in West Germany. See ILL.M. 877 (1989).

65. Id. at 879.

66. Clines, U.S.-Soviet Accord Cuts Risk of War, The New York Times, 13 June 1989, p. A12.

67. 28 LL.M. 885 (1989).

68, Id. at 895.

69. Telegram from Secretary of State to American Embassy, Moscow, 1 August 1988, declassified 5 June
1990,

70. 28 LL.M. 14445 (1989). The Joint Statement acknowledged the U.S. position that the 1982 LOS
Convention constitutes international law and practice only as to traditional uses of the oceans. By limiting its
recognition on the applicability of the Convention, the United States apparently maintained its objections to
those provisions in the Convention relating to unconventional uses of the ocean, namely, the deep-sea mining
provisions,

71. 28 LL.M. 1444, 1445-1447 (1989). The flag state is the country whose flag the vessel is flying.

72, Specifically, Secretary Baker delivered a letter to Foreign Minister Shevardnadze which noted that
“without prejudice to its rights to exercise innocent passage, the United States of America has no intentions
to conduct innocent passage with its warships in the territorial sea of the Union of the Soviet-Socialist Republics
in the Black Sea.” Department of State Circ Tel. no. 311861, 28 September 1989, Carroll, Peace Comes to the
Black Sea, Arms Control Today, 22 (July/August 1990).

73. International Law Division of the Soviet Ministry of Foreign Affairs, 11 July 1990.

74. Action Memorandum to the Secretary of State dated 5 September 1989, declassified 5 June 1990.

‘75. Truver, The Law of the Sea and the Military Use of the Oceans in 2010, 45 Louisiana Law Review 1227
(1985) 1227.



866 Readings on International Law

wishes to use force in violation of international law, that is, for political purposes such as “military pressure in
aid of diplomacy, territorial acquisition, or intervention to influence the policy or ideology of a foreign
government.” Id, See also Lobel, Covert War and Congressional Authority: Hidden War and Forgotten Power, 134
U. Pa. L, Rev. 1035, 1071 (1986).

94, The Prize Cases, 67 U.S. 635, 670 (1863).

95. Watkins, The Maritime Strategy, U.S. Nav. Inst. Proc. Supp. (January 1986).

96. 67 US. at 670.


856 Readings on International Law

only, to go to War. But when a foreign nation declares or openly and outwardly
makes war upon the United States, they are then by the very fact already at war,
and any declaration on the part of Congress is nugatory; it is at least unneces-
lamilton and the other Framers did not consider war to be unlawful in the
absence of express legislative authorization; undeclared war was well known to
the Framers. Indeed, between “1700 and 1870, declarations of war prior to
hostilities only occurred in one case out of ten. . . .”6 The issue of whether to
‘wage undeclared war arose in the early years of the nation. In 1798, for example,
President Adams embraced the suggestion of Secretary of War James McHenry
to not seek a congressional declaration of war against France and instead to engage
in a “qualified hostility,” which, “while it secures the objects essential and
preparatory to a state of open war, involves in it the fewest evils. . . "6

So the Framers’ collective point of view lies away from the extremes: war is
not necessarily illegal when undeclared” ” and the Presidents neither omnipotent
nor impotent. From this context emerges the rule that regardless of whether the
President may engage lawfully in offensive,® sustained war, he many act
unilaterally in an emergency to defend the security of the United States without
congressional approval. The validity of this generalization is not subject to
serious doubt. Indeed, it was James Madison, otherwise disinclined to grant the
President war-making power, who moved the Constitutional Convention to
delete language in the draft Constitution empowering Congress to “make” war
and to replace it with language granting Congress the power to “declare” war.
Such a change, said Madison, would leave “to the Executive the power to repel
sudden attacks.””° Madison’s motion carried, indicating that even in withholding
from the President the royal prerogative to declare war, the Framers granted the
President some measure of power to defend the national security without a
congressional declaration of war.

Although this power to defend”! was not conferred on the President by the
express language of the Constitution, it has been recognized by the courts. In
Durand v. Hollis,” the federal District Court ruled on the lawfulness of President
Pierce’s approval in 1854 of the naval bombardment of Greytown, Nicaragua,
in the response to the failure of the revolutionary government to make repara-
tions to Americans harmed by recent violence. “The question whether it was
the duty of the president to interpose for the protection of the citizens at
Greytown against an irresponsible and marauding community that had estab-
lished itself there, was a public political question, in which the government, as
well as the citizens whose interests were involved, was concerned, and which
belonged to the executive to determine; and his decision is final and conclusive,
and justified the defendant [naval officer] in the execution of his orders given

through the secretary of the navy.”


Boma 217

sea. In fairness to the reporter, it cannot be determined whether the errors
emanated from him or from the Pentagon briefer. In any event, the message was
garbled in transmission, and this probably served to reinforce public perceptions
that the FON Program is merely a convenient vehicle for antagonizing the
Soviets. If nothing else, it highlights the need for better dissemination of
information about this program and the need for a concerted public education
effort.

Although there is substantial risk involved, the United States as trustee for the
rightful owners of the maritime commons, the members of the international
community of nations, should conduct physical, peaceful challenges to the
excessive maritime claims represented by the North Korean military boundary
zones. By patiently, but firmly, asserting these rights, we serve our national
strategy, which is built upon three pillars; deterrence, forward defense, and
alliance solidarity°° We thus defend ourselves and our allies, while also ensuring
that the interests of all nations in unencumbered access to these waters and the
airspace above are safeguarded,

To build long-term public confidence in and support for the overall goals of
the FON Program, it is recommended that historical FON assertion data be
published and that both uniformed members and the general public be educated
as to the critical role which this program serves in carrying out our maritime
strategy and, consequently, our national military strategy.

Commander Boma was on the staff of the Naval War Colleges Center for Naval Warfare Studies
at the time this article was first published.

Notes

1, Watkins, The Maritime Strategy, U.S. Nav. Inst. Proc. 5 (January 1986).

2. US. President, Statement, “United States Ocean Policy and Exclusive Economic Zone of the United
States of America,” Weekly Compilation of Presidential Documents 383 (14 March 1983).

3, Id.

4, Id,

5. U.S. Navy Dept., The Commander's Handbook on the Law of Naval Operations, Naval Warfare Publication
9 (hereinafter NWP 9) (formerly NWIP 10-2), para, 1.4.2, at 1-5.

6. USS. President, Proclamation of 27 December 1988, “Territorial Sea of the United States,” Weekly
Compilation of Presidential Documents 1661 (2 January 1989).

7, Id, at 1-12, n. 26,

8. United Nations, United Nations Convention on the Law of the Sea, reprinted in United Nations conference
on the Law of the Sea, Official Text, U.N. pub. sales no. E 83V.5, (hereinafter 1982 LOS convention) United
Nations, New York, 1983, Arts. 17-26, at 6-9.

9. Id, Art, 33, at 11.

10, Id,, Arts, 55-75, at 18-27.

11, Id,, Art, 87, at 30-31.

12, NWP 9, paras 1.4.3-1.4.3.1, at 1-8, and 1982 LOS Convention, Arts, 46-54, at 15-18,

13, Id, para. 2.3.4.1, p. 2-4, and 1982 LOS Convention, Art. 53, at 17.

14, Id, para. 2.3.3.1, pp. 2-3 to 2-4, and 1982 LOS convention, Art. 52, pp. 16-17.

15, Id,, paras. 2.3.3.2 and 2.3.4.2, at 2-4 to 2-5, and 1982 LOS convention, Art. 45, 13, Art. 52, at 16-17.


Roach 481

higher levels, and provide a mechanism for controlling the shift from peace to
war. They can be viewed as having three, more specific, purposes.

Political Purposes

ROE represents a measure of assurance that national policy will be followed
in wartime or in sudden emergencies which do not allow time for communica-
tions between Washington and the field.* The rules should be flexible enough
to accommodate changing circumstances. They should be designed to allow
military courses of action that advance political intentions with a minimum
chance for undesired escalation or reaction. It is for this reason (among others)
that authority to employ certain weapons is generally reserved to the NCA (e.g.,
nuclear and chemical weapons, riot control agents and chemical herbicides).>
Peacetime rules, in particular, are intended to preserve to the NCA, and all levels
of operational command, the full range of options consistent with exercise of the
right of self-defense and national policy.

Military Purposes

ROE represent limitations, or upper bounds, on the freedom of an on-scene
commander to dispose his forces toward successful completion of his mission.
They must be designed, however, not to interfere with his right and responsibility
to protect his command against attack or an imminent threat of such an attack.
The ROE should be designed to remove any legal or semantic ambiguity which
could lead a commander inadvertently to violate national policy by underreacting
or overreacting to some foreign action.°

The conduct of operations in a tension situation always involves a balance of
threat and counterthreat on the part of both sides. The main purpose of ROE is
to prevent that balance from being disturbed by thrusting the apparent necessity
of self-defense too obviously upon the opponent.

Legal Purposes

ROE represent operational guidance, including that required for self-defense,
which allows the commander to do whatever is necessary to achieve his military
task within the constraints of stated national policy. ROE thus are a major tool
for ensuring that a commander’s actions stay within the bounds of national and
international law.


Wachtmeister 525

There are variants of neutrality by which a State, in peacetime, can be bound
by arrangements in accordance with international Jaw. In these instances the term
permanent neutrality is often used. States which are permanently neutral in
accordance with treaties have certain rights and obligations. They have to follow
rules laid down in the treaties when conducting their security and foreign policy.
Sometimes such treaty arrangements are paired with some kind of guarantees,
by which the integrity of the neutral State is guaranteed by guarantor States. In
return, the neutral State is obliged not to open hostilities against any State and
not to enter into international agreements which could indirectly lead to such
hostilities. The permanently neutral State of course has the right and obligation
to defend its territory and its neutrality.

Austria has declared a self-chosen neutrality, and has applied some self-im-
posed restrictions to both its national and foreign policy. These restrictions are
mentioned in the international documents by which Austria’s sovereignty was
restored in 1955.

Allow me in this context also to refer to the strict and permanent neutrality
of Switzerland. Swiss neutrality is part of the constitutional system of that country.
It is internationally recognized and was collectively guaranteed at the Vienna
Congress in 1815 and in the Versailles peace treaty of 1919.

The picture would be incomplete if I did not mention Finland. The 1948
Treaty of Friendship, Cooperation and Mutual Assistance between Finland and
the Soviet Union is the foundation of Finland’s policy of neutrality. This treaty
notes “Finland’s desire to remain outside the conflicting interests of the Great
Powers.”

International treaty and guarantee arrangements give the States party to them
the right to expect that a certain policy will be adhered to by the neutral State.
If these obligations are violated, it is possible to imagine signals of displeasure
from the guarantor States most directly concerned. I hasten to add, however,
that the more time that has elapsed since the treaty arrangement, the less the real
possibility for the guarantor States to intervene directly in the affairs of the neutral
State.

In the case of Sweden, my country becomes, stricto senso, neutral when there
is war between powers in our vicinity. In peacetime, Sweden has no neutrality
obligations. Sweden’s neutrality is not laid down in its constitution or otherwise
proclaimed as a permanent State doctrine. Our neutrality in the case of war is
neither confirmed nor guaranteed by any international agreement. It is instead a
policy that the Swedish government and Parliament have chosen to pursue, a
policy which it could, should it so wish, amend at any given moment.

Sweden has rejected the idea of incorporating its neutrality in any international
agreement. In our view, guarantees furnished by the great powers would create
some measure of dependence on these States. They might claim the right to keep
an eye on Sweden’s foreign policy and to raise objections should they consider


528 Readings on International Law

the EC and the European Free Trade Association; that we should seek far-reach-
ing, close and lasting relations with the EC; and that we should associate ourselves
to the extent possible with the EC’s work to develop a truly internal market. At
the same time Parliament decided that Sweden should not consider membership
in the Community, because the cooperation and coordination of foreign policy
inside the Community is tantamount to that performed within an alliance.

Nonparticipation in alliances is so fundamental that the correct definition has
been set in concrete in the following phrase: “nonparticipation in alliances in
peacetime aiming at staying neutral in the event of war.” It follows, therefore,
that no commitment must be made in peacetime that prevents us from fulfilling
the obligations of a neutral power when there is war between other States.

The strongest proof of our will to be neutral in the event of war is our refusal
to join alliances in combination with a determination to make considerable
sacrifices to maintain a strong defense. Sweden has based its defense on the theory
of marginal defense, i.e., Sweden will mobilize sufficient strength to match
whatever surplus resources an aggressor may be able to spare for use against it in
the context of a general war in Europe.

Soviet military developments in the vicinity of Sweden are characterized by
an increase in the operational ranges of tactical aircraft, the deployment of cruise
missiles, an increase in strategic and operational mobility, and the development
of new underwater technology (as evidenced by submarine intrusions). These
have all influenced Swedish threat perceptions. The possibility for surprise attack,
the shortening of military warning times, and the existence of special sabotage
groups are relatively new phenomena and have been given added attention in
Swedish defense planning.

As noted earlier, international law does not require a neutral State to be an
impregnable fortress. It does, however, require the neutral State in time of war
to use the military resources at its disposal to uphold its neutrality. Sweden’s
military capacity, with a mobilized total defense, has been and remains significant.
The air force enjoys the reputation of being one of the strongest in Europe. Fully
mobilized, the armed forces number more than 800,000, not including 300,000
persons engaged in civil defense. That together with the determination of the
Swedish people to defend themselves, even if the outcome is in doubt, adds to
the effect of the military hardware available. Furthermore, Sweden maintains an
indigenous production capacity for most of its weapons in order to be inde-
pendent in this field. In addition to airplanes, Sweden produces armored vehicles,
missiles, submarines, and artillery.

The changing threat perceptions have increased demands on Swedish defense
efforts. Broad political majorities support the steps taken during the 1980s. The
Swedish antisubmarine warfare capacity has been enhanced and, on the opera-
tional level, instructions have been altered to make possible the use of force


498 Readings on International Law

it is commonly assumed that ships will open fire without ever sighting the
opponent’s colors. Although the heyday of false colors may have passed, the ruse
still has some validity in naval engagements where distance is not a factor, or
where visual identification is needed before actual engagement. In the Persian
Gulf, for example, visual identification is a practical necessity because numerous
navies sail in close waters with small “generic” gunboats of the same or similar
class. Furthermore, since other means of identification continue to present
difficulties in implementing over-the-horizon targeting, visual identification
remains the most reliable means of distinguishing friend from foe.

The law of naval warfare also sanctions the disguising of a ship as a neutral or
friendly vessel,” but there are limits on the extent to which this can lawfully be
done. For instance, as already noted, disguising a warship as a hospital ship or
some other protected vessel is not permitted.”® Probably the most famous use of
disguise occurred during World War I when the legendary German cruiser
Emden sailed into Penang harbor in Malaya under cover of darkness, outfitted
with a fake fourth funnel to disguise her as a British cruiser which regularly made
port at Penang. Although there is some question as to whether she was flying
British, Japanese, or no colors at all when she entered the harbor, it is generally
agreed that she did, in fact hoist her true German colors before firing a a torpedo
into the Russian cruiser Zhemchug which was at anchor in the harbor.”

Although disguising ships is hardly a 20th-century innovation, certainly its
most ingenious applications occurred during World War I. In addition to the
exploits of the Emden, a remarkable use of disguised ships was Great Britain’s
Q-ship program, which was established to combat the phenomenal success of
the German U-boats in the early stages of the war.”° These Q-ships (also known
as “mystery ships”) were former merchant vessels outfitted with concealed
armament and manned by Royal Navy officers and enlisted personnel disguised
as merchant mariners. The disguises given to the ships themselves were ingenious.
In addition to superficial changes such as civilian paint jobs and false names, the
Qships used creative devices such as dummy funnels and false housings over
guns.

The Q-ship’s crew carried this ruse to full measure. When spotted by a
surfaced U-boat, the Q-ship would allow herself to be shelled. Some of the crew
played the part of the “panic party” by pretending to abandon ship. The
remainder lay on the deck near their guns until the submarine closed, which
sometimes did not happen for hours. Once the submarine was within range, the
Q-ship’s gun crews sprang into action, raised the British battle ensign, and opened
fire. Although the Q-ships sank only twelve U-boats, the major impact of the
program was a shift in German submarine tactics from surface gun attack to
submerged torpedo attack.** One of the actions of the Q-ship’s panic party raises
an interesting point: the panic party would often throw into the lowered boat a
packet of what appeared to be the ship’s papers. The intention was to lead the


Joyner 437

growing challenge to governments presented by non-state groups having access
to modern weapons capabilities, a new sense of greater realism about ‘terrorism’
is slowly emerging.”"*

This “greater realism” and the implicit need to scotch—or at least patently
discourage—transnational terrorism through international legal conduits has
become unmistakably evident. In recent years, specific antiterrorism conventions
concerning aviation hijacking,'® crimes against diplomats and other protected
persons,'© hostage-taking,!” and terrorism per se'® have been promulgated.
Relatedly, international condemnation of the Khomeini regime’s blatant support
in 1979 of the Iranian “students” illegal seizure of the United States embassy and
jailing of its official personnel suggests that a government’s recognized legitimacy
under international law can be grievously undermined by its use, advocacy, or
indulgence of overt terrorism.

Notwithstanding this, while terrorism has become a manifest reality of
contemporary world politics, its exact status under international law remains
open to conjecture and polemical interpretation. The chief difficulty for this
confusion seems to lie in the subjectivity of defining precisely what constitutes
an act of terrorism. That is, the somewhat hackneyed bromide, “One man’s
terrorist is another man’s freedom fighter,” plainly presents the key problem; i.e.,
politics intrudes into the domain of international law, and consequently muddies
the waters of universal juridical interpretation. Would destruction of an offshore
drilling platform by some minority ethnic group or nationality, avowedly done
in pursuit of securing its own political independence and recognized national
homeland, entail a breach of international law? It follows logically that such an
act would indeed abrogate international legal norms. However, what if said
terrorist action had been directed at a regime whose domestic and foreign policies
were themselves perceived as being legally suspect, say, for instance by defending
or endorsing colonialism, imperialism, or apartheid? The answer for this query
comes not so fast.

The point here is that terrorism in general suffers from an imprecise status in
international law, save for certain specified crimes.! Violent terrorist acts directed
at privately owned offshore drilling facilities are likely also to be viewed
selectively as either episodes in a process of self-determination or as base crimes
committed against the law of nations. Undoubtedly, in substantial measure
political convenience is likely to prove to be the preeminent arbiter in interpret-
ing the legitimacy of such acts. Respective to the legal jurisdiction over terrorist
activities perpetrated against offshore structures, however, recent developments
pertaining to the law of the sea have contributed significantly to making the
situation less ambiguous both legally and politically.


Booth 101

least for those with the will and power to exploit that situation. In the 1970s the
traditional maritime regime fell back before the advancement of national claims
that were given legitimacy by the international community. It is unlikely that
this process will stop: it will only slow down. The result will be that large areas
of the sea will be filled out with denser patterns of national administration. In
the troubled common, the unilateralist impulse will be powerful in a world in
which the belief is growing that there is not enough for everyone.

As a result of the unilateralist impulse, the sea is becoming “territorialized.”
National administration over the land is extending seaward on matters of good
order, the exploitation of resources, and the exercise of sovereignty. Territoriality
is a politically relevent term, although international lawyers might quibble with
its implications. In ethology, territoriality refers to an area over which one group
is dominant: the group regards that area as its own private property and will resist
intrusion by others. Increasingly, national groups are having such feelings about
parts of the sea. Icelandic protection of “its” fishing grounds in the mid-1970s
was a good illustration of such attitudes. The most salient aspect of the dispute
was Icelandic feelings about ownership, not the actual state of the law of the sea.

Creeping jurisdiction is here to stay. The natural tendency will be for
governments to push out regulations into the EEZ, and in some cases even
beyond. The impulse to govern efficiently will encourage such a trend, and
economic and pollution problems will create plenty of incentives. All nations
bordering on northern waters will want a bigger say in their own maritime
backyards, areas that were formerly the unclaimed “blue water” of naval powers.
It is from the rubbing together of these two interests and perspectives—coastal
state management and blue-water naval strategy—that the longer-term naval
implications of the changing law of the sea will derive.

The implications of a more restrictive regime can be usefully discussed in
relation to the main types of ocean area affected, namely, straits, the seabed, and
EEZs.

Straits. The only strategically important strait in northern waters is that leading
into and out of the Baltic. Restrictions for warships were unilaterally imposed
by Denmark in 1857, and were embodied in the 1958 convention. No more
than three warships at a time can pass without special permission, and submarines
have to pass on the surface. These restrictions present some problems for the
Soviet Union, and at times it has indicated its misgivings; but to date it has
followed the rules, at least as well as other nations. Vessels other than warships
are governed by the right of innocent passage.

Rights of transit through straits have been one of the major issues in UNCLOS
IH, It is a bone of contention on which there is still plenty to chew in the future,
For the Baltic this might involve the passage of fewer ships at a time, the need
for more advance warning, restrictions on the size and type of warships allowed,
the prohibition of nuclear-powered ships, and so on. The opportunity to apply


362 Readings on International Law

President’s use of force,they should focus their objections on the wisdom of his
actions.

Just as President Reagan was authorized to identify the threat posed by Libya
in 1986 and to order a defensive action, so he was empowered to choose the
tactics best suited to achieve his objectives. President Reagan chose to respond
to Libya’s support of terrorism by means of air strikes against command, control,
and communication (C’) facilities used by Libya to conduct terrorist operations.
He sought to accomplish two stated purposes: deterrence, in the form of
retaliation for past attacks, and preemption, in the form of neutralizing the
terrorists’ C> capability. Critics could argue that such purposes are actually
offensive and therefore unauthorized. The critics would have a point to the
extent that a legally meaningful distinction between offensive and defensive force
is not self-evident. Indeed, the Navy's Maritime Strategy” is itself a good
example of how a defensive strategy can yield ostensibly offensive tactics. By
taking the fight to the enemy to defend U.S. allies, pursuant to the Maritime
Strategy, the Navy would engage in apparently offensive operations against
Soviet targets. Thus might a defensive military operation appear, in isolation, to
be offensive.

However, as the Supreme Court noted in the Prize Cases,°° the Constitution
resolves this ambiguity in the President’s favor: it is the President who decides
when the national security is jeopardized; it is the President who decides on the
appropriate defensive reaction. The ability to make this sort of decision is the
very essence of the constitutional power and duty to defend. President Reagan's
decision to employ air power to the ends of deterrence and preemption of
terrorism was a decision to use miliary force to address a threat to national
security. His actions were therefore undertaken within the limits of his constitu-
tional authority.

The Framers of the Constitution did not establish a clear boundary to mark
the limits of presidential war-making authority. They did not foresee the Vietnam
War, the deaths of 241 U.S. Marines in their Beirut barracks in 1983, or the
deaths of 37 sailors aboard the U.S.S. Stark in the Persian Gulf in 1987. Lacking
perfect foresight, they left the hard question of whether a war should be fought
to the realm of political, as distinct from legal, debate. They knew that even in
triumph, war is tragic. They did not seek to encumber with legal doctrine the
political issue of whether to fight.

The Constitution does not tell Congress, the President, or the people when
war should be waged. It reserves to the political process the question of whether
the exercise of military force is good and right, addressing instead the question
of how the legal power to wage war should be allocated. To say that the President
may wage war under certain circumstances is not, therefore, to say that he should.

In the spring of 1986, the President believed that Libya would continue its
campaign to harm U.S. citizens. He sought to defend against such attacks by


428 Readings on International Law

modest resources to acquire and effectively use C/B weapons. For, as will be shown later,
the chemical and laboratory supplies needed to prepare lethal agents are freely
available, and the required procedures are discussed in literally dozens of articles
in the open literature.

It is the purpose of this article to explore the question of C/B weapons and
their possible use by terrorists. We will describe the nature of terrorism, how
terrorists could acquire and plausibly use C/B weapons, and give our view of
the outlook for terrorist use of C/B weapons. We should emphasize that by
illuminating the possibility that C/B weapons might be used by terrorists, this
article is intended to stimulate more effective preparation by governments and
security agencies for that possibility. It is not intended to alert any terrorist group
to the existence of terrible new weapon that they have thus far overlooked. In
fact, for any terrorist group interested in escalating the weapons in its arsenal,
numerous books and articles in the general literature and the publicity surround-
ing the repeated uses of C/B weapons by the Soviets and their surrogates in Laos,
Cambodia, and Afghanistan will already have served as ample notice.”

Looking at the goals of terrorists and the ways in which they operate, it would
seem at first glance that terrorism is the type of instrument for which C/B
weapons would be ideally suited. Consider the following attributes of terrorism:

* Terrorism is not just what terrorists do, but is the general sense of alarm and
fear that they cause by their actions.

* Public perceptions of terrorism in the world appear to be governed not by
the actual level of violence, but by the quality of the incidents, the location, and
the media coverage. For example, more people tend to recall the hijacking in
the United States ofa TWA airliner in September 1976 by Croatian extremists—
resulting in one death—than remember the bomb explosion three weeks later
that destroyed a Cubana airline with the loss of 93 lives.

* Terrorism, at bottom, is theater. Terrorist will adapt to maintain their
“Broadway presence,” endeavor to stay ahead of counter-terrorist preparation,
maintain their facade of strength, and increase the audacity, drama, and mag-
nitude of their threat.

Considering these attributes of terrorism, wouldn’t terrorists find C/B
‘weapons to be an ideal instrument by which to escalate their threat and maintain
their “Broadway presence?” Before attempting to answer this question, itis useful
to examine the types of scenarios in which terrorists might use C/B weapons
and the objectives that they would probably want to achieve by this dramatic
escalation:

* A large or a sophisticated terrorist group might, after considerable debate,
decide “rationally” that the use of C/B weapons was to its advantage. A credible
threat of a mass casualty C/B attack, perhaps preceded by a “demonstration” with
casualties numbering in the hundreds, would be viewed as a highly leveraged
instrument of coercion that could crack the resolve even of intransigent governments


Rose 511

one responsibly inflate hope for an escape from the military problems posed by
the Soviet BW programs? There can be no deus ex arms control in this arena. In
answer to those who crave a constructive suggestion under even the least
promising circumstances, one can recommend only: Defense.’”*®

Overall, then, the status quo approach rests on two flawed premises—that the
biological warfare genie can be kept on a tight leash through arms control and
that bioweapons can otherwise be held in check by strategic deterrence. Both
prongs invite more risk than seems prudent under the circumstances.

A Patchwork Quilt. This approach seeks to contain the biochemical problem via
the cumulative effect of several interlocking initiatives: economic sanctions,
export controls, an augmented defensive capability, and participation in arms
control negotiations.

Sanctions. During the Reagan Administration, other aspects of American
policy clearly took precedence over a perceived need to keep the biochemical
genie bottled up. Between 1986-88, for example, when Iraq was using mustard
and nerve gas to break up human-wave assaults during its touch-and-go war with
Tran, the United States basically turned a blind eye to this breach of the
biochemical taboo. Later, Iraq began to use similar agents to settle a long-standing
feud with Kurdish rebels, and several nations called for tough trade sanctions.
After some dithering, the Reagan Administration came out in opposition to
sanctions against Iraq,® and proponents eventually settled for diplomatic protests.

“The fundamental question,” as John Kester sees it, “is whether . . . use [of
biochemical weapons] by anyone will carry a real penalty—economic, political
and perhaps military—even if enforcement injures Western economic or short-
term political interests.”4” Thus far, developed nations have not been willing to
stomach more than a taste of the required medicine, and during the past few
years the United States has sadly been among the reluctant.

Export Controls. The U.S. track record regarding export controls is more
favorable. In 1984 the Reagan Administration began to clamp down on the
transfer of equipment and materials directly contributing to biochemical weapon
programs in other countries, In the long run, this is probably a futile effort, since
many of the items in question have dual use in paints, plastics and pharmaceuticals
or are found in breweries, hospitals and pesticide plants. The unwelcome truth
is that even if the United States imposes stringent export controls, too many other
countries are willing to let their business firms peddle biochemical technology
to a world of eager customers.

Arms Control. Under a patchwork approach, however, the time gained by
these delaying maneuvers can be put to good use in trying to fashion a workable
arms control regime for biochemical weapons. The expert consensus is that
effective worldwide control of biological and chemical agents is probably a
chimera, but nonetheless an effort worth making. For nearly 20 years diplomats


580 Readings on International Law

Thus the nations agreed on the right of innocent passage: the Soviet Union
indicated its intention not to restrict it, and the United States indicated its
intention not to exercise it in the Black Sea territorial waters of the USSR. This
outcome has been praised as a “quiet, common sense solution to a mutual
problem” that “could be applied to other problems.”!! Indeed, both sides
benefited, as was true also of IncSea and DMA.

IV

During the twentieth annual Consultative Meeting between the IncSea
delegations of the Russian Federation and the United States, held in Moscow in
May 1992, both sides agreed that the agreement continued to play a positive role
in the relationships between their navies, as well as contributing to the safety of
their ships and aircraft operating near one another. Both sides also expressed
satisfaction that due to their conformity with the agreement, the number of
incidents remained insignificant. In addition, the United States and Russia
continued to refine and develop the special IncSea signals. Moreover, at this
review, they also discussed improvements in communications, agreeing upon a
new list of signals related to innocent passage through territorial waters.

It is clear that the success of these accords is not simply a matter of having
brought forward into the later ones the useful approaches of the first. Rather,
the three agreements, taken together, should be seen as a continuum of progress.
They have been highly successful indeed: repetition of serious incidents of the
types these agreements were designed to avoid has now become highly unlikely.
What are the contributing factors?

* Although obviously subject to civilian control and supervision, all three
accords were to a considerable extent negotiated by the cadre of military
professionals who would have to implement them. Their discussions tended to
be more practical and less political than those conducted in other negotiating
fora.

* The focus in the negotiations was on the achievable, in a step-by-step
approach; unresolved issues were set aside. The military professionals con-
centrated on prudential behavior, not on reducing arms or platforms.

¢ During times of political tensions, the annual reviews were not publicized,
again downplaying the political aspect of this relationship.

¢ The arrangements were worked on, developed, and maintained by profes-
sionals having a stake in keeping the mechanism intact as a basis for evolving
farther methods of conflict and dispute avoidance.

As further testimony to the success of this process, some ten other countries
now have bilateral, IncSea-type agreements with Russia. Since the emergence
of Ukraine as an independent State, the United States has recognized that, as


Aceves 251

Soviet territorial sea, they probably continued to monitor Soviet activity through
their defensive collection systems (e.g., radar and sonar).

In February 1988 a more serious incident occurred between U.S. and Soviet
naval forces in the Black Sea. On 10 February, two ships, again the Caron and
Yorktown, entered the Black Sea. The U.S. warships were soon approached by
three Soviet vessels, a Krivak-class frigate, a Mirka-class frigate, and a smaller
intelligence gathering ship.“3 The Soviet vessels shadowed the U.S. warships
throughout their Black Sea transit.

On 12 February, the Caron and Yorktown entered Soviet territorial waters near
Sevastopol and headed eastward, skirting the Crimean Coast. Within minutes,
the U.S. warships were intercepted by additional Soviet vessels. The Caron was
contacted by the Mirka-class frigate SKR-6. Three minutes later,the Yorktown
‘was approached by the Krivak-class frigate Bezzavetnyi.

The Caron transmitted the following to CincUsNavEur at 11:20 A.M.
Greenwich (“Z”) time, or 1:20 P.M. local, from 44° 10 min. north latitude and
34°39 min. east longitude: “While conducting FON ... . track south of Crimean
peninsula at 0746Z [9:46 A.M. local] 12 February 1988 Caron was informed on
channel 16 VHF by Krivak-I FFG 811, ‘Soviet ships have orders to prevent
violation of territorial waters, extreme measure is to strike your ship with one of
ours.’ Caron’s reply was ‘I am engaged in innocent passage consistent with
international law.’ Caron was located twelve nautical miles from the Soviet
landmass. Caron continued on [planned track] and at 0802Z [10:02 A.M. local]
at 44° 15.2 min. north latitude and 33° 35.4 min. east longitude, 10.5 nautical
miles from the coast, Mirka FFL 824 contacted Caron’s port side aft at frame 466
[about sixty feet from the stern]. There was no damage to Caron other than
superficial scraping of paint and no personnel injuries. Caron continued transit
and exited territorial waters at 0950Z [11:50 A.M.] 12 February 1988 without
further incident. Closest point of approach to the Crimean peninsula was 7.5
nautical miles at 0830Z [10:30 A.M.]. Data photos and video tape have been
collected and will be forwarded in accordance with applicable instructions.”*>

The Yorktown sent the following message: “While conducting transit south of
Crimean peninsula (closest point of approach 10.6 nautical miles from Soviet
land mass) Yorktown was contacted at 0756Z [9:56] 12 February 1988 by Krivak
0811 via channel 16 . . . and told to leave Soviet territorial waters or ‘our ship is
going to strike on yours.’ Krivak 0811 then came alongside Yorktown's port side
at 0803Z, [10:03] at a distance of less than fifty feet and subsequently shouldered
Yorktown by turning into ship. Krivak 0811 starboard anchor was torn away and
Yorktown sustained minor hull damage. Two Harpoon [surface-to-surface missile]
canisters (port launcher) sustained damage when Krivak bullnose [forwardmost
extremity of the bow] passed down port quarter. Krivak 0811 then cleared to
port and took station 300 yards off Yorktown port beam. At 0805Z [10:05] Krivak
0811 again contacted Yorktown via channel 16 and stated ‘We will strike you as


578 Readings on International Law

The sides began negotiating a new agreement to deal with such matters, and
on 12 June 1989, the new U.S.-USSR Agreement on the Prevention of
Dangerous Military Activities (DMA) was signed. It entered into force on 1
January 1990.° Like the Incidents at Sea Agreement, the DMA Agreement
governs the activities and personnel of the armed forces of each side when
operating in proximity to each other during peacetime. Also, and for the first
time, it covered certain operations on land. Specifically, the subjects dealt with
are:
Entering the national territory of the other party either by force majeure or
unintentionally;

* Using a laser in such a manner that it could harm personnel or damage
equipment of the other party (a measure that amplifies an understanding reached
through the annual IncSea review format);

¢ Hampering the activities of the other party in a special caution area in a
manner that could harm personnel or equipment; and,

¢ Interfering with command and control networks in a way that could harm
personnel or equipment.

Moreover, and of special interest, paragraph 2 of Article II of the agreement
provides that “the parties shall take measures to ensure expeditious termination
by peaceful means, without resort to the threat or use of force, of any incident
which may arise as a result of dangerous military activities.” Thus, the agreement
deals explicitly with the need to avoid the use of force and to regulate conduct
in order to reduce the risk of conflict, especially in circumstances where armed
forces are operating in a state of high readiness and in proximity to each other.

Emulating IncSea still further, DMA has a plethora of procedures to imple~
mentit, Again, the rules were written by military experts whose colleagues would
have to live with them and make them work. These rules are written at ajudicious
level of detail and include the obligation to maintain communications channels
using pre-agreed call signs (in both Russian and English), as well as pre-agreed
radio frequencies—leaving nothing to chance. Indeed, a novel requirement is
that the parties are mutually and regularly to test communication procedures
established by the agreement or subsequently under it: air-to-air, air-to-ground,
air-to-sea, with military aircraft while landing, as well as others. Also, as in IncSea,
the parties have provided for annual review meetings and have established a joint
military commission for this purpose. Again, the emphasis is on military-to-
military discussion of problems and solutions.

The U.S.-Soviet uniform interpretation of the rules of international law
governing innocent passage is another example of agreements directly related to
military operations and employed to resolve or otherwise defuse existing tensions


180 Readings on International Law

Functional Classification of Naval Powers. Ken Booth conceives three basic
functions that navies can perform—diplomatic, policing, and military. Booth also
details the main aims and subsidiary policy objectives of these three functions. In
terms of geographic reach, Booth further divides navies into four categories:
coastal, contiguous-sea, oceangoing, and global navies. This classification of
navies could be viewed as a kind of coding for naval power. A State having
so-called global interests needs a global navy, with capability for naval presence
and projection of power, to define and to defend those national interests.
Otherwise, a State will merely require a navy that is capable of meeting a set of
relatively limited national interests in a limited area. Moreover, clearly defined
national interests allow a state to have better visualization for the purposes of its
naval planning and naval strategy.” With Booth’s characterization of navies in
mind, the relationship between naval power and naval functions can be con-
ceived as correlated. In other words, there should be a correlation between the
physical capabilities, the reach of the navies, and their functions.

Perhaps the most vital missions for most small-navy States are the basic policing
function, a portion of the military function, and/or a portion of the diplomatic
function. The basic policing function includes the missions of the coast guard of
national sovereignty, resource enjoyment within the exclusive economic zone
(EEZ), and maintenance of good order in these waters as well as contributing to
internal stability and development. Performance of a military and/or diplomatic
function by small navies is, however, heavily dependent on naval hardware
capability, the political volition of the coastal navy States, and the perception of
the political leaders of the object States. Thus, the diplomatic function represents
the threshold that separates oceangoing and global navies from the contiguous-sea
and coastal navies. A navy that can effectively perform more missions than
policing, conventional deterrence and defense, and the diplomatic functions must
have capability beyond that of contiguous-sea and coastal navies. Therefore, a
small navy can be a contiguous-sea navy or a coastal navy as defined by Booth.
The term “small,” however, does not imply a navy’s weakness or inferiority
compared to an oceangoing or a global navy. Rather, the power or competence
of a navy must be judged contextually.

An oceangoing navy, as defined by Booth according to the criterion of physical
reach, may be equated to Hill’s medium-power navy, which has “interests
generally extend[ing] far beyond the 200-mile limit of the economic zone.”"?
Booth’s global navies may also be equated to Hill’s superpower navies since they
characteristically enjoy the capability of global deployment. Booth states that
most navies of the world, about 60 percent, fall into the category of contiguous-
sea navies while another 35 percent are coastal navies. These navies have the
capability to execute the conventional deterrence and defense missions which
include: preparing for wartime tasks, deterring hostile intrusion across maritime
frontiers, contributing to local maritime stability, protecting national claims in


Roach 483

were assisting, was operating under the general peacetime ROE that covered
such a contingency.

It is a common misperception that under the peacetime ROE a commander
must “take the first hit” and cannot act in self-defense until the opposing force
has missiles away.® That is not the law and is not required by our general
peacetime ROE.

Definition of Self-Defense

The legal standard for the use of armed force in self-defense is the same
whether to protect the individual, a ship or aircraft, or the nation. First, there
must be a situation requiring the use of force (i.e., necessity) and, second, the
amount of force used must be proportional to the situation giving rise to the
necessity. The requirement of necessity, or present danger, obviously arises when
an armed attack occurs. However, the right of self-defense may also involve the
use of armed force against a threat of imminent attack. In either case, propor-
tionality requires that the use of force be limited in intensity, duration and
magnitude to what is reasonably required to counter the attack or threat of attack.
In peacetime, force may never be used with a view to inflicting punishment for
acts already ¢ committed.” Reprisals should not be undertaken until authorized by
the NCA.!°

Hostile Acts and Hostile Intent

A hostile act is simply the actual use of armed force—attacking. The commis-
sion of a hostile act gives rise to the right to respond with the use of proportional
force in self-defense by all authorized means available. Hostile intent is the threat
of the imminent use of force. Evidence of hostile intent may lead to the force
being declared hostile. Whether or not a force is declared hostile, where the
hostile intent amounts to a threat of imminent attack, the rights exists to use
proportional force in self-defense by all authorized means available.'!

Pursuit

ROE frequently provide rules regulating the pursuit of hostile forces, but
sometimes confuse the legal limits of pursuit in self-defense with the law of the
sea (LOS) law-enforcement concept of hot pursuit.

Self-defense pursuit, often called immediate pursuit, properly refers to pursuit of
hostile forces initiated in response to and in defense against the hostile acts of
those forces. Although such pursuit does not have to be undertaken immediately,
since it is a response taken in self-defense, pursuit may be lawfully taken only so
long as the hostile force is an immediate threat to your force. Frequently the


624 Index

‘Vienna Convention on the Law of Treaties, 10
‘Vietnam War
bombing of Haiphong Harbor, 35-36
congressional refusal to fund, 20
denial of prisoner-of-war status for captured combatants, 476
military decision process, 59
My Lai incident, 468
political activism over, 21
USS. involvement in, 471
USS. withdrawal, 555
von Gerhard, Gerhard, 322

WwW

‘Wachtmeister, Count Wilhelm of Sweden, 523-532
‘Waldock, Sir Humphrey (International Court of Justice), 460
‘Wallenberg, Raoul, 531
‘War Powers Resolution, U.S., 413
‘War, Principles of, 476. See also Law of armed conflict.
‘Warner, Denis, 240
‘Warsaw Pact. See INF Treaty.
‘Warships
belligerent, 283
in archipelagic waters, 293, 294
prohibition in neutral waters, 276-277, 279
transit passage, 283, 303-304
burden of shooting first, 340
general immunity, 202
innocent passage, 201-202, 216-217, 249, 268, 282.
See also Freedom of Navigation program.
obligations on the high seas, 286
opposing belligerent, legitimate hostile action in neutral waters, 279
tattletale units, 316
‘Washington, President George, 357
‘Watt, Donald C., 183
‘Weapons
biological weapons. See Biological warfare; Biological/biochemical weapons.
boobytraps, 472
chemical weapons. See Chemical weapons.
incendiary, 472
law of armed conflict governing, 471-472
lawfulness of, 468, 471-472
mines, 299-301, 472
nuclear weapons. See INF Treaty.
poisonous-gas weapons, 468, 469, 472
‘Webster, Secretary of State Daniel, 37, 322-323, 459
‘Wegener, Ulrich, 420
‘Weinberger criteria for intervention, 373
‘Weinberger, Secretary of Defense Caspar W., 353, 373, 424, 457
‘Wellesley, General Arthur (Duke of Wellington), 343, 387
‘Welwood, William, 265
‘Weschler, Vice Admiral Thomas, 486
‘West Germany. See Germany.
‘Western Europe
extradition practices, 379
political asylum tradition, 379
White Sea, 225


326 Readings on International Law

Grenadian people overwhelmingly supported the invasion, and their gratitude
was evident to American servicemen, congressmen, and journalists who were on
the island during and after the invasion. The Grenadian’s only fears were that
Americans would leave the island and the Cubans and Soviets would return. The
Soviet reception in Afghanistan has not been that cordial.

If President Reagan were an amoralist, unconcerned with the morality of the
means, would he have sent a delegation of State Department officials to Grenada
at the eleventh hour in an attempt to arrange for the evacuation of Americans?
It was only after those officials returned from Grenada on 23 October, indicating
that conditions on the island were near anarchy and their efforts had been
obstructed at every turn, that the President made the final decision to use force
to rescue Americans on the island.

The perfectionists and the moralizers among the critics of the invasion based
their criticism on the belief that the United States’ action violated the Charter
of the United Nations, the Treaty of the Organization of American States and
other conventions whose articles outlaw war. It is in these articles that the ideal
is found. They ignored the articles in those conventions that attempt to limit
war, and it is in those articles that legal justification for the Grenadian rescue
mission can be found. “The U.N. Charter was supposed to be the constitution
ofa new world, but for reasons that have often been discussed, things have turned
out differently. To dwell at length on the precise meaning of the Charter is today
a kind of utopian quibbling. And because the U.N. sometimes pretends that it
already is what it has barely begun to be, its decrees do not command intellectual
or moral respect, except among the positivist lawyers whose business it is to
interpret them. The lawyers have constructed a paper world, which fails at crucial
points to correspond to the world the rest of us live in”?

The United Nations attempted to condemn the United States for the
Grenadian invasion. The fact that they were unable to do so points out the
inherent flaws in the Charter. “Only he can judge of matters great and wise
whose soul is likewise,” said Montaigne. “In the United Nations’ short history
there have been many hundred uses of force by members for territorial aggran-
dizement or religious, ideological, or ethnic advantage. If the United Nations,
which condemned Zionism as racism, and would not condemn the Korean
Airlines massacre, condemns the United States, it should be told that the world
needs more uses of force such as the Grenadian invasion. . . .”

The moralizers must be forced to deal with the costs of the adoption of their
views in the real world. The potential costs far outweigh the benefits in practice.
“Does an absolute condemnation of all warfare not put peace-loving nations at
the mercy of those animated by an ideology of domination?” Should the people
of Grenada have been dominated by armed thugs against whom they were
defenseless? Implicit in these questions is the Manichaean division of the world,
and for this there can be no apology, because twentieth century history and


Aceves 249

On 10 March 1986, the guided missile cruiser USS Yorktown and the destroyer
Caron entered the Black Sea.”> At 11:11 A.M. on 13 March the Yorktown and
the destroyer Caron entered Soviet territorial waters near the southern Crimean
Peninsula and passed within six miles of the Soviet coast, where they were soon
confronted by a Soviet warship. The commander of the Soviet frigate Ladnyi
notified the U.S. warships that they had violated the territorial waters of the
Soviet Union and requested that they depart immediately. The U.S. vessels
acknowledged receipt of the warning but did not change course. The Soviet
command placed its Black Sea air and naval forces on combat readiness and
dispatched border guard vessels and naval aircraft to intercept the U.S. warships.”
The Yorktown and Caron stayed in Soviet territorial waters for approximately two
hours and departed at 1:12 P.M.

The Soviet Union was quick to condemn the U.S. maneuvers. The U.S.
chargé d’affaires, Richard Combs, was summoned to the Soviet foreign ministry
in Moscow to receive the Soviet protest.”” The Soviets stated that the American
violation of its territorial waters “was of a demonstrative, defiant nature and
pursued clearly provocative aims.” According to the protest note, it was not the
first time that U.S. warships had deliberately failed to comply with Soviet laws
regarding its territorial waters and that such violations can have serious conse-
quences, the responsibility for which will be wholly on the U.S." In fact, the
commander in chief of the Soviet navy, Fleet Admiral V.N. Chernavin, suggested
that the U.S. ships might have been attacked had they remained longer in Soviet
waters.”° Similarly, Georgi Arbatov, Director of the Institute of the U.S.A. and
Canada, stated that the U.S. operations represented an attempted to test the Soviet
Union and warned that Soviet forces would shoot the next time it happened.”

Specifically, the Soviet Union based its protest to the American maneuvers
on the notion that the right of innocent passage for warships was not absolute in
Soviet territorial waters. According to Admiral Chernavin: “The innocent
passage of foreign warships through the territorial waters of the USSR is
permitted only in specially authorized coastal areas which have been announced
by the Soviet Government [and] there are no such areas in the Black Sea off the
coast of the Soviet Union.”*! Thus, opposition to the U.S. exercises was
apparently not based on any activities that the Yorktown or Caron may have
undertaken during their transit through Soviet territorial waters. Rather, it was
the act of crossing into Soviet waters and the subsequent presence in the area
that constituted the alleged violation.

However, in its protest note the Soviet Union also charged that the U.S.
actions were “a clear violation of Soviet borders for the purpose of conducting
espionage.”> Similarly, the Soviet news agency Novosti accused the U.S. of
conducting a dangerous espionage operation against Soviet southern defenses
using two naval ships and a military satellite.>* Novosti asserted that the Caron
and Yorktown entered Soviet territorial waters while an American reconnaissance


Chapter 18

Diplomacy at Sea:
U.S. Freedom of
Navigation Operations
in the Black Sea*

William J. Aceves

oO: 12 February 1988 the Commander in Chief of United States Naval
Forces in Europe (CincUsNavEur) received the following message from
the USS Yorktown. At the time, the Yorktown and the USS Caron were conducting
Freedom of Navigation operations in the Black Sea off the Crimean coast of the
Soviet Union. “While conducting innocent passage south of Crimean Peninsula
Yorktown was deliberately shouldered by Soviet Krivak I FFG-0811 (Bezzavetnyi).
Minor damage sustained to hull, no holing or risk of flooding. Two Harpoon
missiles on port fantail launcher are damaged and unusable. CasRep [casualty
report] follows. Amplifying info to follow.”"

The Caron transmitted the following account of the incident to CincUsNav-
Eur: “IncSea [incident at sea] violation. Mirka class FFL hull number 824 collided
with Caron port side aft with no damage to ship or personnel at 0801Z [10:01
A.M. local]. Prior to collision, Mirka passed to Caron on channel 16 VHF
[very-high-frequency voice radio] ‘Do not violate State borders of the Soviet
Union, I am authorized to strike.’ USS Yorktown in company received similar
‘warnings and has been struck by Stenka class patrol boat. Indications are that
either or both units may be rammed again. Caron will maneuver to attempt to
avoid further damage while maintaining Freedom of Navigation track.””

While neither U.S. vessel was severely damaged, the incident graphically
displayed the dangers to American warships involved in those years in the U.S.
Freedom of Navigation (FON) program. More importantly, it raised a variety
of issues relating to the character and objective of these maritime exercises. The
purpose of this study is to examine the development and execution of the
Freedom of Navigation program in the Black Sea.?

* Reprinted from the Naval War College Review Spring 1993.


Index 615

St. Petersburg Treaty (1875), 232
strategic significance of northern waters, 96-97
surprise attack on Port Arthur (1904), 233
Svalbard and the delimitation of the Barents Sea, 99-100
tattletale units, 131, 133-134, 136, 142
trade with Japan, 235
‘Treaty of Friendship, Cooperation and Mutual Assistance between Finland and the Soviet Union,
525
Treaty of Portsmouth of 1905, 233
‘TU-95 Bear test well incident (1983), 223
USS. relations
accusations of espionage, 249-250, 253
Black Sea “bumping incident,” 216, 579-580
IncSea Agreement of 1972. See IncSea Agreement of 1972.
INF Treaty, 465-473. See also INF Treaty.
USS Essex incident in North Sea, 575
UsS.-Soviet Agreement for the Prevention of Incidents On or Over the High Seas, 135
USS.-Soviet detente and U.S.-Japan relations, 447
UNCLOS III goals, 189-190
Uniform Interpretation of Rules of International Law Governing Innocent Passage, 257-258
Spaight, James M., 549
Spain, Treaty of Tordesillas, 265
Special caution areas, 256
Squadra Anti-Commando anti-terrorist force of Italy, 420
Sri Lanka, Agreement between India and Sri Lanka on the Boundary in Historic Waters (1974), 225
Stalin, Josef, 233
Stare decisis, 379
State terror, 392, 405, 437. See also State-sponsored terrorism.
military response to, 455-464
State-sponsored terrorism, See also Havens for terrorists.
collaboration of governments in responding, 462
confirming linkage, 462
defined, 455, 456-457
deterrence, 458
examples of, 456
intelligence requirements, 456-457
legal framework for response, 457-461
military responses, 455-464
probative evidence linking States and terrorists, 457
publicizing linkage of sponsoring States and terrorists, 463
secrecy of response plans, 462
self-defense responses to, 458-463
terrorists as combatants, 462-463
US. policy regarding, 455-456
Statute of the International Court of Justice, 6, 7
Sterret, Lieutenant, 357
Stockton, Admiral Charles H., 545
Stokes, Bruce, 233
Straits
Aaland Strait, 283-284
Baltic, 98, 101-102
Belts and Sound, 283-284
Bering, 219
contained within territorial seas, 201-202
Corfu Channel case, 50, 280-281
Danish, 284
Dardanelles and Bosporus, 247, 283-284
Denmark Straits, restrictions on warships, 101



258 Readings on International Law

the coastal State may require it to leave the territorial sea, as set forth in Article 30
of the Convention of 1982. In such cases the warship shall do so immediately.

8. Without prejudice to the exercise or rights of coastal and flag States, all
differences which may arise regarding a particular case of passage of ships through
the territorial sea shall be settled through diplomatic channels or other agreed
means.

On 28 September 1989, the State Department notified all U.S. diplomatic
posts that since Soviet border regulations had been brought into conformity with
the 1982 LOS Convention, the U.S. government had assured the Soviet Union
that the United States had no reason or intention to exercise its right of innocent
passage under the Freedom of Navigation program in the Soviet territorial sea,’?
The State Department noted, however, that the warships of both countries
retained the right to conduct innocent passage incidental to normal navigation
in the territorial sea. Moreover, it added that the United States would continue
to conduct routine operations in the Black Sea and that the U.S. retained its right
to exercise innocent passage in any territorial sea in the world. Nevertheless, after
the signing of the Uniform Interpretation, there were no further incursions by
USS, warships into Soviet territorial waters in the Black Sea,”>

his review of the Freedom of Navigation program reveals that the Black

Sea operations were successful on several levels. First, FON operations
pushed the Soviet Union into formal negotiations on the right of innocent
passage. According to the State Department, “the Soviets entered into a serious
effort to reconcile our divergent views of the right of innocent passage only after
the February 1988 Black Sea FON operation.””* As a result of these negotiations,
the Soviet Union amended its internal regulations and rescinded its strict
limitations on innocent passage.

The long-term implications of the Black Sea FON operations are even more
significant. They affirmed the provisions of the 1982 LOS Convention relating
to the traditional uses of the oceans, and as a result maximized the freedom of
maritime movement.

At perhaps a more fundamental level, this review of U.S. Freedom of
Navigation operations in the Black Sea has shown a compelling relationship
between law and strategy. On the one hand, the influence of international law
on USS. foreign policy has been significant. The Freedom of Navigation program
was established as a direct result of the legal constraints potentially imposed by
international law. A State failing to realize the importance of the law of the sea
can find its sea power severely restricted or rendered useless. Commerce, for
example, is affected when trade routes are swallowed up by expanding territorial
claims. Transit along littorals may be restricted by wary nations asserting their
territorial sovereignty; key choke points can be closed to both commercial and
military vessels; other straits may be so highly regulated that they no longer serve


Boma 211

Hypothetical Regimen for Assertion of Navigational Rights

Assessment of Korean Situation. Before structuring forces which might be
employed to assert navigational freedoms in the face of the North Korean claims,
a brief summary of the contemporary Korean political situation and North
Korean forces will be provided,

As anyone who has had the opportunity to visit the Korean village of
P’anmunjom will readily attest, although there has been a ceasefire in effect for
35 years, tensions remain very high and volatile between the two sides. Attempts
at reconciliation and reunification have been pursued in earnest by the South
Korean government, but the only solution which the North seems willing to
explore is capitulation by the South to P’yongyang’s “enlightened” leadership.
Unfortunately, prospects for compromise between these two polar regimes are
not hopeful.

Although the factual setting of the opening scenario was hypothetical, the
North’s unsettling internal pressures are all too real. Given the characteristic
unpredictability and demonstrated irritability of the North, extreme caution is
warranted in planning an operation of this type ifa conflagration is to be avoided.

Also, the potential military capabilities of the North should not be underes-
timated. North Korea possesses a very large army, a respectable air force and a
formidable coastal naval punch. Further, these forces are tied together by an
effective command, control and communications (C*) network, and capable of
being triggered by an impressive indicators and warning (I&W) system. If they
so desire, the North Koreans are fully able to conduct a spirited defense of their
coastal waters, including the full extent of their military boundary zone.

Structuring of Forces. In selecting the forces needed to accomplish the FON
objectives in this area, it is important to keep firmly in mind that the purpose of
this program is the peaceful assertion of navigational rights, and not unnecessary
provocation. However, while the intention of the United States is to conduct
peaceful transits through the disputed areas, the reaction, particularly in the case
of North Korea, may provide a very warm reception. Therefore, it is essential
that unit and national self-defense considerations be incorporated into all aspects
of the planning process.

At first view, it might seem that a combined ROK-U.S. naval force would
be best suited for these operations. However, in this writer’s opinion, this would
be viewed as highly provocative, in and of itself, to the North. It appears that it
would be better under these circumstances to conduct a separate, coordinated
program, with the ROK Navy responsible for maintaining the vital sea lanes to
the Northwest Islands within the west coast zone, while the U.S. Navy assumes
responsibility for the challenge of the east coast military boundary zone.


460 Readings on International Law

The requirement of “necessity” for self-defense is not controversial as a general
proposition. However, its application in concrete cases requires judgements on
facts and intentions that often involve diverse perceptions. A case for self-defense
is not persuasive either on the political or legal level unless a reasonable basis of
necessity is perceived. Those to whom a justification is addressed (that is, other
governments or the public) will consider whether it is well-founded; they will
not regard the use of force as a purely discretionary act.

An important dimension of this question concerns the separate issue of when
does action become necessary; that is, when is the use of force justified? Pertinent
to this question is whether the force is to be used for rescue of nationals whose
lives are threatened, as a response to a continuing threat, or as reprisal.

The law with respect to imminently endangered nationals is clearest. The late
Sir Humphrey Waldock (who served as a judge and president of the International
Court of Justice) underscored that law when he wrote that force may be used to
intervene in another State to protect its nationals from injury if there is: an
imminent threat of such injury; a failure or inability on the part of the territorial
sovereign to protect them; and measures of protection are strictly confined to
the object of protecting them from injury.” Waldock later observed that, “Cases
of this form of armed intervention have not been infrequent in the past and,
where not attended by suspicion of being a pretext for political pressure have
generally been regarded as justified by the sheer necessity of instant action to save
the lives of innocent nationals, whom the local government is unable or unwilling
to protect.”?

Examples of such cases of military action to protect nationals in peril include
the Belgian action in the Congo (Stanleyville) in 1961, the U.S. action in the
Dominican Republic in 1965, and, more recently, the U.S. rescue of the
Mayaguez in 1975, the Israeli rescue action in Entebbe, Uganda in 1976, and the
‘West German rescue effort in Mogadishu, Somalia in 1977.

The law with respect to military response to a continuing threat is more
difficult, Military action has been justified,”> however, where an imminent threat
of attack exists and where the purpose is to protect the security of the State and
its essential rights of territorial integrity and/or political independence. Would
this line of reasoning support an attack on terrorist camps in one country when
terrorists trained at that camp have executed hostages in another? It might be
argued that military action against the camps would deter or preclude further
hostage deaths or hostage-taking. An argument on similar lines was advanced in
the Boxer Rebellion incidents in China at the turn of the century.”* However,
elimination of the threat of future attacks by terrorists from those camps in the
delinquent States could be more effectively justified under the rationale of
anticipatory self-defense.

Professor Lauterpacht states, as an example, that when a State is informed that
a body of armed men is being organized on foreign territory for the purpose of


122 Readings on International Law

to move through the Straits of Malacca, approximately five very large crude
carriers (VLCCs—tank vessels in excess of 175,000 dwt) would transit the Straits
loaded each day and five such vessels would return through the Straits in ballast.!t
But tankers, including the larger tankers, are not even the major component of
shipping in the Straits. A traffic survey, based on visual sightings and radio contact,
was conducted by the Port of Singapore Authority in 1976; the study reported
about 150 vessels passing per day, of which 90 were general cargo vessels and 40
were tankers.’ Even if it is assumed that this number of vessels were distributed
evenly and traveling in equal numbers in both main directions, vessels would
pass each other while traveling in opposite directions approximately every 9
minutes.!> But this simplifying assumption does not, of course, account for
crisscrossing, random grouping, overtaking, and other factors.

Bottom conditions also create safety problems, especially for large vessels.!4
While the Straits themselves narrow to a width of 3.2 nautical miles (n. mi.) off
Singapore, the deep channels are considerably narrower, as little as 1,000 meters
(m) in parts of the Singapore Strait and only 600m near the One Fathom Bank
near the western entrance to the Straits of Malacca. In addition to their
narrowness, the deepwater areas are discontinuous and irregular and require large
vessels to maneuver to stay in deep water. In several places, vessels have to
maneuver through areas of less than 23m average depth in order to traverse
shallow spots between deeper channels. These maneuvers would be difficult for
large tankers even if crowded traffic conditions did not constrain their move-
ments or occasionally even compel them to take evasive action.

The navigational problems of the Straits have led to numerous vessel casualties,
especially involving tankers.'> Although strandings of tankers declined during
the 1970s as a result of improvements to aids to navigation, !© there was a high
rate of collisions involving tankers. In 1974, while only one reported tanker
stranding took place in the Straits out of about 100 worldwide, fully 10 out ofa
world total of 77 collisions occurred there; in 1975 two of 77 strandings occurred
in the Straits, but nine out of 51 collisions. Serious or potentially serious casualties
occurred throughout the 1970s. Showa Maru, a 237,000-dwt vessel, stranded in
1975 and released about 1,000T of oil, and several other vessels in the same class
grounded and spilled oil. Several collisions also occurred; for example, Diego
Silang collided with two other vessels (one a tanker) and spilled 6,000T of oil.
There were several total losses: Oswego Merchant, carrying jet fuel, burned and
sank after a collision with another tanker; Tosa Maru, which was in ballast,
collided with another tanker and broke up, caught fire, and sank.

Regardless of the undeniable safety problems of commercial traffic in the
Straits, the coastal states found it difficult to arrive at a unified position on
regulation of navigation.'” This is evident from the language of their joint
declaration, in which the Singapore authorities would not go as far as Indonesia
and Malaysia in asserting regional authority over traffic in the Straits. It is thought


Terry 463

of self-defense against their sponsor is triggered, and responding coercion may
be the only proportional response to the threat. Because the unlawful acts of
combatants are violations of the law of armed conflict, those terrorists who do
succeed in their war crimes may be tried upon capture and the linkage to the
supporting State publicized. Where terrorist acts cannot be prevented, the law
supports military action to eliminate a continuing threat. Military action could
lawfully include strikes at the heart of offending States’ military apparatus where
necessary to preempt further attacks. Finally, we may not be able to wait for
absolute certainty and clarity. If we do, the world’s future will be determined by
others—most likely by those who are the most brutal, the most unscrupulous
and the most hostile to everything we believe in.

This proactive strategy, long overdue, embraces use of the military instrument,
along with other defensive and nonmilitary measures, as a lawful and effective
response to State-supported terrorism. It attempts, for the first time, to use
international law and its inherent right of self-defense as a force for the rights of
Americans rather than as a shield for the scorn of our enemies.

Lieutenant Colonel Terry wrote this paper while attending the Naval War College.

Notes

1, U.S, MILITARY POSTURE FY-1986 at 94-95 (1985).

2, Preemptive Anti-Terrorist Raids Allowed, The Washington Post, 16 April 1984, p. 19.

3, McFarlane, Terrorism and the Future of Free Society, (Speech delivered at the National Strategic
Information Center, Defense Strategy Forum, Washington, D.C.: 25 March 1985).

4. See Livingstone & Amold, The Rise of State-Sponsored Terrorism in LIVINGSTONE & ARNOLD, EDS.,
FIGHTING BACK 14-21 (1985).

5, LAQUEUR, GUERRILLA: A HISTORICAL AND CRITICAL STUDY 324 (1976).

6, Supran, 4 at 14; see also Terry, The Iranian Hostage Crisis: Intemational Law and U.S. Policy, JAG Journal
31-79 (Summer 1982).

7. Shultz, Terrorism and the Modem World at 23 (Speech to Park Avenue Synagogue, New York City: 25
October 1984).

8 See Taubman, The Shultz-Weinbewger Feud, The New York Times Magazine 3 (14 April 1985).

9. Supra n. 3.

10. Tovar, Low-Intensity Conflia: Active Responses in an Open Society, at 24 (Paper prepared for the
Conference on Terrorism and Other “Low-Intensity” Operations: Intemational Linkages, Fletcher School of
Law and Diplomacy, Medford, Mass.: April 1985).

11. The rules of land warfare are found primarily in Hague Convention IV of 1907.

12, See Terry, State Terrorism: A Juridical Analysis, Journal of Palestine Studies 94-117 (Autumn 1980) for
one view of the cost incurred when a nation State violates intemational law in the name of increased security.

13. See, e.g., Wright The Cuban Quarantine, 57 Am. J. Int'l L. 588 (1963).

14, U.N, Charter, Art. 1, para. 1.

15, McDougal The Soviet Cuban Quarantine and Self-Defense, 57 Am. J. Int'l L. 596 (1963).

16. Brownlie, Intemational Law and the Activities of Armed Bands, 7 Int'l & Comp. L. Q. 712, 731 (1958).

17, GARCIA-MORA, INTERNATIONAL RESPONSIBILITY FOR HOSTILE ACTS OF PRIVATE PER-
‘SONS AGAINST FOREIGN STATES 118-120 (1962).

18. Moore, A DIGEST OF INTERNATIONAL LAw in v. II 409 (1906).

19, HYDE, 2 INTERNATIONAL LAW 107 (2nd ed. 1945).

20, The Caroline Case, MOORE n. 18 at 412,

21, WALDOCK, 81 HAGUE ACADEMY RECUBIL DES COURS 467 (1952).

22, WALDOCK, 106 HAGUE ACADEMY RECUEIL DES COURS 240 (1962).



Jacobson 163

consider the significance and staying power of the trend toward coastal nation
expansionism. The 1958 treaties were, as it turned out, too backward-looking.

ike the 1960s an °70s, despite the existence of the Geneva Conventions, the
trend favoring broader coastal nation jurisdiction continued, and pressures for
anew oceanic order mounted. The sources of these pressures are several:

* New ocean technologies have meant that more people have been engaged
in more new and different activities farther from shore—e.g., drilling for oil and
gas; fishing in large modern fleets thousands of miles from home and, significantly,
very close to the shores of other nations; transporting huge quantities of crude
oil in enormous, thin-skinned tankers that only roughly resemble traditional
ships. These new-technology-supported activities have caused coastal nations to
become more aware of the opportunities, controversies, and dangers that were
developing in their offshore waters.

* Who were these coastal nations? In the wake of global decolonization, they
‘were, more and more frequently, new nations, part of the “population boom”
in the Global Village. They were nations basically poor, with sea boundaries but
no great global navies, merchant fleets, or distant-water fishing fleets. They were,
and are, nations of the Third World.

* These nations have been participants in the quest for a New International
Economic Order (NIEO), which seeks a redistribution of resources and wealth on
the planet. This search for a NIEO found coastal nation expansionism—especially
the claims by poor nations to nearby ocean resources and uses that otherwise
might be grabbed by the few technologically rich nations—to be consistent with
NIEO goals.

* The mid-1960s revelation that the manganese nodules of the deep seabed
contained such valuable minerals as nickel, cobalt, and copper—together with
the growing technological capability for their commercial recovery—provided
the final incentive for a new approach to the international law of the sea. The
miners needed a security-of-tenure system as a prerequisite to profitable mining,
and the Third World nations saw an opportunity for an equitable allocation of
a new source of wealth.

The call for a new United Nations Conference on the Law of the Sea—the
third conference—came in the late 1960s and was triggered by a series of General
Assembly resolutions and declarations. These proclaimed the deep seabed beyond
nation jurisdiction as “the common heritage of mankind,”!? purported to
establish a moratorium on seabed mining while a new international conference
established a mining regime,’ and set 1973 as the target year for the new
conference to begin.!*

The conference, UNCLOS III, did begin in December 1973, after several
years of preparatory meetings of a special UN Seabed Committee, and finally
adopted its new treaty in April 1982.


Robertson 545

Wolff, although acknowledging that in former times “it was right to kill those
captured in war at any time,” nevertheless concluded that “because it is not
allowable to kill the subjects of a belligerent, as long as they refrain from all
violence and do not show an intention to use force, or as long as you can provide
in another way that this may not happen, it is not allowable to kill those captured
in war, not even immediately, much less at any other time, unless some especial
offense shall have been committed because of which they are liable for punish-
ment.”"” In a later section he added that it was not permissible to kill those who
had surrender “unconditionally.”"*

Nineteenth-century publicists uniformly adopted the position that it was
unlawful to refuse quarter and to attack those who attempted to surrender.
Typical of this group is William E. Hall, who stated that the “right to kill and
wound armed enemies is subordinated to the condition that those enemies shall
be able and willing to continue their resistance. It is unnecessary to kill men who
are incapacitated by wounds from doing harm, or who are ready to surrender as
prisoners. A belligerent therefore may only kill those enemies whom he is
permitted to attack while a combat is actually in progress; he may not as a general
tule refuse quarter.!®

Some authorities suggested that an exception existed in special situations in
which it was impossible for a force to be encumbered with prisoners without
increasing the danger to itself,?° but Admiral Charles H. Stockton, a noted
American international law authority and former President of the Naval War
College, was critical of that article of the United States Army’s law-of-war
instructions which adopted this exception, claiming that it was obsolete.”!
Certain authorities also acknowledged that in some situations in the heat of battle,
such as in the midst of a cavalry charge, it was impossible to distinguish between
those who wished to continue the fight and those desiring to surrender.”

It can thus be seen that by about 1900, most publicists recognized a customary
tule which made it unlawful to refuse quarter or to wound or kill those who
unconditionally offered to surrender or no longer had the means to resist.

Codification of the Customary Rule

The first attempt to systematize and codify the rules of war was made during
the American Civil War by Professor Francis Lieber of Columbia College in
New York. Professor Lieber drew up, at the request of General William H.
Halleck (then general in chief of the Union army), a set of instructions which,
after review and revision by a board of officers, was promulgated to the field in
1863 by War Department General Order No. 100.” This “Lieber Code”
included three articles dealing with quarter:


Robertson 275

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DeCamp 325

most difficult to apply in practice because chief of State can be guided only by
very general principles in making decisions. For example:

¢ “The objective of a foreign policy action must be genuinely constructive
and praiseworthy if the decision maker is even to consider choosing morally
dubious methods on its behalf.

* “Morally dubious means should not be employed when less dubious means
that may achieve the same objective are available.

* “A statesman should choose that course of action which, in the given
circumstances, promises to cause the least destruction of things of value.

* “The statesman should be constrained in the choice of means by the
‘principle of proportionality.””">

This paradigm can be helpful in analyzing the morality and legality of the
Grenadian rescue mission.

Reagan critics comparing the Grenadian action to the Soviet invasion of
Afghanistan would certainly link the President with the amoral school described
above. Those who make the Afghan analogy disparage means without addressing
motive. They do not consider morality of intent.

“All the Grenadian operation has in common with recent Soviet enforcements
of the Brezhnev Doctrine, so-called, is the unpleasant use of military force. If
force per se is to be condemned [as it is by the perfectionists], if the legitimacy
of its use under international law has nothing to do with intent or result, then it
is anarchy merely disguised as law.” The Grenadians freely chose the type of
government that they wished. Law and order was restored to the island and to
the region, and the balance of power in the Caribbean basin was maintained.
Legal arguments cowered in the presence of a higher good, but few will argue
that it would have been better to have had the pretense of law than the reality
of moral victory."

International law is a double-edged sword, providing protection for the
innocent and judgment for the wrongdoer. Men who act illegally and immorally
by international legal standards, are subject to judgment under the law. If
international law provides protection for such men, its very purpose is subverted.
General Austin, Mr. Coard, and others involved in the murder of Prime Minister
Bishop, members of his cabinet, and innocent civilians in St. George’s should
have been subject to the doubled edge of the sword of international law—judg-
ment. “People who initiate massacres lose their right to participate in the normal
(even in the normally violent) processes of domestic self-determination. Their
military defeat is morally necessary.”"7

General Austin had run amuck and was intent on murdering his political
opposition. “Against the enslavement or massacre of political op-
ponents. . . there may well be no help unless help comes from outside.”!® When,
as in the case of Grenada, help does come from outside, the reaction of the
indigenous population is a genuine gauge of the morality of the action. The


346 Readings on International Law

Japanese through seapower projection. The Germans and the Russians
slaughtered literally millions of each others’ soldiers—3.7 million Germans and
7 million Russians. We suffered 290,000 combat deaths in all services and in all
theaters of the war. We do not know the price of this kind of warfare because,
thankfully, we have never been required to pay it in order to guarantee our
national security, except for the horrible bloodletting of the Civil War here on
our own continent.

I would say also that, in wartime or in these periods that we now call a violent
peace, our Nation’s ability to affect world events, either positively or negatively,
is most often measured by the size and capability of its Navy. As with Great
Britain, who for centuries was Queen of the Seas, and with Japan, who has
alternately attempted maritime power or appended itself to the dominant navies
of its region over the last century, this is driven by economic and geographic
necessity. By contrast, as we all know, nations who concentrate on naval power
without such geographic and economic necessity, such as prewar Germany and
today’s Soviet Union, give us cause for alarm.

The disturbing realities are that, since World War II, allied navies have
declined around the world and the Soviet Navy has dramatically expanded. We
say this frequently, some of us taking this shift for granted and others not quite
believing its enormity, but consider a few examples:

In 1946—and this is after demobilization—the U.S. Navy retained, among
other assets, 106 aircraft carriers, 34 of them actively deployed, and 798 larger
surface combatants, 220 of them in the active fleet. The British actively operated
another 29 aircraft carriers worldwide and 419 larger surface combatants. Five
years later, during the Korean war, we were operating 33 aircraft carriers and
308 larger surface combatants in the active fleet, while the British numbers had
dropped to 10 carriers and 74 surface combatants. By 1961, we were operating
23 carriers and 262 surface combatants, while the British had been reduced to
only 1 aircraft carrier and only 71 surface combatants. The trend continued, with
slight undulations, until today when we have been able to rebuild our navy to
14 active carriers and 217 surface combatants, while the British, once the
mightiest navy in the world, operate 3 aircraft carriers and 54 surface combatants.

By contrast, the Soviet fleet has steadily emerged from a coastal force with
only 62 larger surface combatants and no carriers in 1964 to a force of 4 aircraft
carriers and 284 larger surface combatants today, while at the same time
maintaining a huge numerical lead in submarines, minesweepers, and small
combatants.

These changes dramatically affect a nation’s ability to impact events. For
example, there were 418 allied ships in the Mediterranean in 1947 at the time
of the crisis that occasioned the proclamation of the Truman Doctrine. There
‘were no, repeat, no Soviet ships. By the time of the 1967 Arab-Israeli War there
were 66 U.S. and 21 British ships present in the Mediterranean, and the Soviets




524 Readings on International Law

Neutrality does not cease to exist if it is violated either by the neutral State
not fulfilling all its obligations or by actions perpetrated against it by a belligerent
State. In accordance with international law, a neutral State using armed resistance
to stave off an intruder is not regarded as having committed a hostile act. At the
same time, the neutral State is bound by the same rules to prevent its territory
from being used for acts of war or as bases for such acts. A belligerent State is
obliged to respect neutral territory and not to engage in acts of war there. And
the neutral State is obliged to be impartial, that is, it may not engage in the war
or support any of the belligerent States. Thus, neutrality must be applied equally
toward the belligerents. At the same time, we should note that a neutral State is
always free to offer mediation.

The rules laid down in the Hague conventions are based on long experience
of what actions should not be tolerated by belligerent States, and what may lead
them to regard a neutral State as a legitimate target for countermeasures, maybe
even war. This applies, for example, to the obligation of the neutral State to
refuse transit of troops, the duty to intern belligerent troops entering the neutral
country and, if bans are imposed on exports of military equipment, the nondis-
criminatory application of such bans to all belligerents. However, these rules say
nothing about the general, nonmilitary trade, even if neutral States themselves
often apply a principle of “normal trade.”

‘When Sweden considered applying for membership in the United Nations in
1947 there was a dilemma, because adherence to the Charter of the UN is
theoretically incompatible with neutrality if the Security Council decides to
impose sanctions on a particular country. (There has so far been only one case
of this kind: the resolution to impose sanctions against then Southern Rhodesia,
a resolution that Sweden strictly implemented.) However, this limited waiving
of neutrality is of little practical importance, because we are guaranteed not to be
drawn into a military conflict that would encompass either one of the great
powers or any of their allies. This is so because the great powers, that is, the five
permanent members of the Security Council, must be in agreement before the
Security Council can make a decision to apply military or other sanctions. They
have a veto power, and therefore we run no risk of being ordered by the Council
to declare war on either of them. As stated clearly in Parliament by the then
foreign minister, it was for this reason that Sweden felt free to seek membership
in the United Nations.

The international doctrine on neutrality has come to the conclusion that a
neutral State must use its military resources to safeguard its neutrality. Of equal
importance is the fact that there is no rule in international law stipulating that a
neutral State should possess a military capacity to stave off all incursions.
International law does not require a neutral State to be an impregnable fortress,
There is no obligation for a neutral State to be at the peak of the spiral that
technically drives the development of sophisticated armaments.


Wachtmeister 529

without prior warning against underwater vessels intruding in Swedish internal
waters.

Despite economic constraints, it was decided in 1982 to develop a new
generation of aircraft in order to ensure continued strength. The JAS/Gripen
aircraft will use more indigenous than imported technology. Together with
enhanced radar and base structures, the JAS system will improve our ability to
counter aircraft and cruise missiles that might violate Swedish airspace. The
system will thus serve as a platform for omnidirectional defense in the air and
increase the capacity of the Swedish defense forces to deny Swedish territory to
any side in the event of war.

The diversification of the threats has led to a series of other measures that will
enhance our ability to deal with incidents in the grey zone between peace and
war. New focus is being given to the need to protect the nation against surprise
attacks. Particular attention has been devoted to counter-industrial espionage and
international terrorism, and to the protection of communications and the whole
civilian infrastructure of the state.

The underlying sentiment of these measures is clear. There is consensus in
Sweden that the country is worth defending and that it is defensible by means at
its own disposal. General conscription has created a sense not only of duty, but
of privilege to prepare for the defense of the country. Defense spending is
currently growing at a rate of 1.7 percent annually in real terms and is calculated
to amount to 2.7 percent of the GNP. Under these circumstances, I know what
the reaction would be on the part of the average Swedish taxpayer, or the
conscript soldier in basic or refresher training, if someone told him that there are
those who say that Sweden tries to have a free ride for its security. He would be
disgusted,

So much for our ability to be neutral in time of war. Now to the foreign policy
component of the policy of neutrality: our will to be neutral. If we have no
military ability, the will is immaterial. On the other hand, if the capacity is
available but there are doubts about our will, the situation would be equally bad,
because then our intentions could be questioned. This is why we argue that our
foreign policy is our first line of defense.

Sweden, with a large territory but only 8.6 million people, is a democratic
country in northern Europe with strong economic ties to the Western world.
Sweden is situated in the immediate vicinity of one of the superpowers. So placed,
Sweden had better avoid either coming under the influence of the nearby
superpower or becoming the threatening outpost of the other. Our own interest
is best served by basing our policy on a rational assessment of reality as we see it.
After all, it is we who decide on a day to day basis the content of our policy, and
the geographic realities are permanent.

In peacetime we must pursue a policy that inspires and sustains the confidence
of the rest of the world in our determination and our ability to be neutral in


98 Readings on International Law

These can be stated briefly. The 12-mile territorial sea, which extends the
innocent passage provision, has no major military significance. Its main meaning
was in relation to the possible nationalizing of hitherto international straits.
However, the text provides for essentially unimpeded passage for ships, sub-
marines, and aircraft through or over straits. The proposed transit rights are
equivalent to high-seas passage. The Baltic Straits are the only important straits
for the present discussion, and their regime is unaffected as a result of Article
35(c) concerning those straits regulated by “long-standing international conven-
tions in force.” More significant than changing straits-regimes in northern waters
is the problem of the seabed. In the past, some have argued in favor of the
complete demilitarization of the seabed but it has not proved possible to go
beyond the Seabed Treaty; this entered into force in 1970 and prohibits the
emplacement of nuclear weapons and other weapons of mass destruction.
UNCLOS III has agreed that the deep seabed be reserved for “peaceful
purposes,” a form of wording that the naval powers see as perfectly consistent
with their projected military activities. There has been some disagreement
whether “military” listening devices are peaceful, and there is scope for disagree-
ment about what is “scientific” research, for much scientific research in the
oceans has military implications. For the present, seabed military activities remain
intact, if not unchallenged.

A major innovation of UNCLOS III is the 200-mile exclusive economic zone

. (FEZ), in which coastal nations have specified rights over fish, oil and gas,
environmental protection, and the conduct of marine scientific research. The
UNCLOS text has circumvented disputes about military activities in EEZs by
adopting a tactic of silence. Behind this silence has been hidden a number of
rights for navies.” What is not prohibited is permitted. UNCLOS III has not
spoken any last rites over naval strategy.

From this brief discussion it would appear that there are no major strategic
implications in northern waters arising out of the military provisions (or lack of
them) of the Draft Convention of UNCLOS III. There have been some minor
implications, but these could have been expected regardless of UNCLOS III.
Pollution, economic exploitation, increased traffic control and other considera-
tions have combined to draw new attention to the policing or constabulary task
of navies in coastal waters, and threaten some restriction on naval movement.
Changing international regulations are not self-enforcing: warships and aircraft
act as badges of sovereignty and agents of enforcement. In addition to new
constabulary tasks, military power is necessary for more serious possibilities, In
areas of disputed jurisdiction, nations that do not want to lose them will have to
show a willingness to defend their patches of water. Their claims will normally
require naval support as well as legal arguments. In these circumstances small
powers trying to assert their rights in the face of stronger neighbors will be given
additional confidence if their claims are supported by a unified alliance. Displays


Chapter 29

Military Involvement In
Domestic Terror Incidents*

Major William R. Farrell, U.S. Air Force

The use of military force in domestic situations is severely limited by constitutional and
statutory law. These limitations and some attendant ambiguities are of considerable legal
consequence not only to the policymaking level of government but to local commanders in
defining, planning for, and implementing the military role in domestic terror incidents.

he possible employment of American military forces in a large-scale

domestic terrorist incident is a matter worthy of consideration. Such use
of forces would entail significant legal decisions made in light of the role played
by the military in American society. Before discussing the actual capabilities of
existing forces, it is necessary to examine other factors in some detail.

In the comparatively recent period since the beginning of World War II, the
American Military Establishment has passed through several distinctive phases.!
Before the war, the military forces constituted less than one percent of the male
labor force and were strictly volunteers. The enlisted force was composed mainly
of people from working-class or rural origins, while officers were drawn
predominantly from southern, Protestant, middle-class families. Socially, the
pre-World War II military was self-contained and markedly separated from
civilian society.

By 1945 close to 12 million people were in uniform, a large majority of whom
were assigned to combat and service units. While these forces were socially
representative of American society, the military remained an institution whose
organization contrasted starkly with existing civilian structures. A large
demobilization took place after the conflict, only to reverse itself to a ceiling of
3.6 million men at the height of the Korean war. Organizationally and materially,
the armed forces of that war closely resembled those of World War II.

The military of the cold war, which averaged 2.5 million men, was composed
increasingly of those with some form of technical specialization. The proportion
of people assigned to combat or service units declined markedly with the
corresponding increase of electronic and technical specialists. The war in Viet-
nam illustrated yet another phase of the armed forces in American society. Not

* Reprinted from the Naval War College Review July-August 1981.




Robertson 299

[Tloday 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.”

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 EEZs 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 in archipelagic sea lanes
(where none are designated, the routes normally used for international naviga-
tion), to the right of archipelagic sea lane passage. In principle, then, the same
tules 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 passage is substantially identical to transit
passage 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, Germany), 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 ofits own citizenry, a nation
may emplace both armed and controlled mines" 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
ofsuch mines is required.'”” 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.


14 Readings on International Law

telegraphic, radio, and other means of communication, and the severance of
diplomatic relations.” If such non-forcible means are inadequate, the Council
may “take such action by air, sea, or land forces as may be necessary to maintain
or restore international peace and security.”

As originally envisaged by the Charter, armed action under the authority of
the Security Council would be taken by national armed forces made available in
advance to the Council. Overall direction of the employment of these forces was
to have been exercised by a Military Staff Committee consisting of the chiefS of
staff (or their representatives) of the armed forces of the five permanent members.
Since this Military Staff Committee has never really functioned as intended, the
Security Council has been forced to adopt ad hoc arrangements in the only two
instances in which it has taken armed enforcement measures. In the Korean War,
the United states was asked to designate a commander of U.N. forces. In
Operations Desert Shield and Storm, the Security Council (in resolution 665)
used the device of calling “upon those Member States cooperating with the
government of Kuwait which are deploying maritime forces to the area” to use
such measures as were necessary to enforce the maritime embargo previously
declared by Resolution 661. The Council used the same approach when, in
Resolution 678, it authorized offensive action against Iraq. There it authorized
“Member States co-operating with the Government of Kuwait . . . to use all
necessary means to uphold and implement resolution 660 (1990) [the initial
resolution calling on Iraq to withdraw from Kuwait] and all subsequent relevant
resolutions and to restore international peace and security in the area.”

What we had then was less a de jure U.N. Security Council enforcement action
than a Security Council imprimatur on a collective self-defense operation by
States coming to the aid of Kuwait. If this interpretation is correct (and not all
international lawyers would agree with it), then this brings into play Articles 2(4)
and 51 of the United Nations Charter.

Article 2, paragraph 4, provides that “All Members shall refrain in their
international relations from the threat or use of force against the territorial.
integrity or political independence of any State, or in any other manner
inconsistent with the Purposes of the United Nations.” The most generally
agreed exceptions to the prohibition on the use of force in Article 2(4) are actions
authorized by or in implementation of a decision of the Security Council,
humanitarian interventions for the rescue of nationals (a right disputed by some),
and individual or collective self-defense.

Self-defense is the subject of Article 51, which provides in part that “Nothing
in the present Charter shall impair the inherent right of individual or collective
self-defense if an armed attack occurs against a Member of the United Nations,
until the Security Council has taken measures necessary to maintain international
peace and security.” The important concepts here are that: the right of self-
defense is not created by the Charter but is inherent, a sovereign right of States,


DeCamp 327

political philosophy detail the aggressive nature of Marxism-Leninism. On the
other hand, “domination of other peoples, as we have seen, has always created
an uneasy feeling in Americans; they naturally look towards establishing the
institutions of freedom wherever they go.””” Americans do not resort to the use
of force simply to establish these institutions. American forces remained in
Grenada after the operation for humanitarian and strategic reasons, and to insure
the Grenadians’ rights to choose their own form of government. If the perfec-
tionists or the moralizers had had their way, the immediate costs might have been
the loss of that right to choose and the loss of other rights which we Americans
often take for granted.

“The morality of foreign policy can be questioned not only when a state takes
actions that conflict with ethical principles, but also when it fails to take actions
to further a moral objective.” President Reagan had a good objective, and yet
the moralizers demanded passivity. They talked about the law—how
humanitarian, invitational intervention violated this treaty or that treaty. They
talked about the “moral high ground” and how America would lose it by using
force in Grenada. And they talked about Article 2 of the UN Charter, as the
ideal. They should have taken note of American democratic ideals and the strong
influence they exert upon American foreign policy. They should have studied
ethics where they would have found that “it is in the extension of the notion of
solidarity with others that the first evolution of ethics is to be seen... . In the
history of man, this idea of responsibility toward others has been wholly or
partially formulated in various cultures at various times.” It is a morality based
on action. Altruism does not call for resignation, but rather, enhanced activity
on behalf of humanity. “Slogans about nonintervention, and solemn disavowals
of force, might allow Americans to seize the rhetorical high ground. The Soviet
Union would continue to occupy more and more real ground,””> and neither
one would ever reach the moral high ground, which is our primary objective.
Alexander Solzhenitsyn said that to speak about high values and then never
defend them is impotence.

Alexis de Tocqueville recognized idealistic, abstract, but moral goals such as
justice, dignity of the individual, freedom and equality. He also recognized the
duality of our natures, and he spoke of a pragmatic sphere in which we assess
what works too. He took a contextualist approach to the question of whether
the ends justify the means, just as the nonperfectionists do. President Reagan
approached the crisis in Grenada in a nonperfectionist way, taking into account
all the circumstances of the situation. He was guided by general principles in his
decision. His objective was “genuinely constructive and praiseworthy.” He
exhausted “less dubious means” to achieve his objective. The President chose a
course of action which caused “the least destruction of things of value,” if we
are to consider de Tocqueville’s intangibles as things of value. Finally, he was
“constrained in the choice of means by the principle of proportionality.” Critics


80 Readings on International Law

New Policies. Protests vs. Force. The problem for each naval power will be to
develop policies that will enable it to respond to. challenges at sea while
minimizing the adverse effects on its world image. The utility of force in
international relations is certainly not a new problem, but factors militating in
favor of restraint have been fostered by UNCLOS III. In particular, the prestige
and political recognition of developing States in the new ocean regime have
become as important as the bargained-for economic rights. Any naval power cast
in the role of a hegemonic reactionary with no regard for the political integrity
of smaller States could lose a considerable amount of influence and respect. That
tisk must be weighted against the advantages of using or threatening force to
preserve military or political options in any given situation.

It is problematic to describe situations in which a naval power would be
justified in using force in opposition to restrictive coastal State claims. The use
of force in general is prohibited by international law, except as a legitimate
exercise of self-defense. Exceptions to that general prohibition can be found, but
there are no categorical exceptions that would apply to claims of jurisdiction over
a particular area of ocean. As to the latter, any justification for the use of force
would arise from unique political and military circumstances. Hypotheses do not
offer much assistance because, in order to be realistic, they must be so descriptive
and esoteric as to have virtually no argumentative value. Consequently, the only
useful methodology is one that recognizes that the use of force may be necessary
under certain circumstances but examines the limits on such use in both legal
and practical terms.

One limiting principle is that restrictive coastal State claims that do not actually
interfere with naval operations should not be met by a demonstration of force
solely as a means of protest. Suppose, for example, that a State were to declare
that advance notice was required prior to passage of foreign warships through its
economic zone. If the economic zone in question were not actually on a transit
route for warships, there would be no need to detour an announced naval force
through the zone to demonstrate rejection of the claim. That is not to say that
naval powers should acquiesce in the claim. To the contrary, they should assert
their position through diplomatic protests and public pronouncements on
appropriate occasions. What should be avoided is the show of force merely for
the sake of argument, and it should be avoided precisely because it would serve
no useful purpose. A coastal State that decides to assert a restrictive claim is not
likely to withdraw the claim simply because superior forces are ignoring it; in
fact, violations of the claim might serve a coastal State objective of gaining
political visibility.

Of course, any challenge to naval mobility would generate a certain amount
of support within the naval power for forceful intervention. The arguments
would be, first, that ignoring such claims might invite more like them, and
second, that nonintervention might allow the claim to “ripen” into international


836 Readings on International Law

This language is but an elaboration of Daniel Webster's rule of self-defense in
the Caroline Case. He probably contemplated anticipatory self-defense when the
imminence and magnitude of the threat were great enough. The British
justification for attacking the Caroline was that she would be used in the future
to support the insurgency.

Threats move faster and can result in more violence than in Webster's day.
When confronted with a truck bomber driving full speed towards a Marine
barracks, or a kamikaze aircraft diving on a ship, most people would agree that
force can be used first to ward off the blow. The situation is not different from
the domestic legal defense against a charge of murder for shooting a man about
to shoot you. If you can convince the prosecutor or jury that those were the
facts, you will be exonerated.

When is an armed attack sufficiently imminent to justify anticipatory self
defense?

* The official justification given by the United States for its forcefiil quarantine
of Cuba in 1962 to persuade the Soviet Union not to bring more ballistic missiles
to Cuba (and to remove those already there) did not rely expressly on self-
defense.'® The use of those missiles to attack the United States was not yet
immediately threatened. Ifa State was justified in using force first-—preemptive-
ly—against its neighbor whenever that neighbor acquired threatening new
weapons, there might be little left of the rule against first use.

¢ Inthe 1981 Gulf of Sidra incident, U.S. pilots were authorized to shoot two
Libyan aircraft after the Libyans had shot first, missed and turned away.!? The
Libyan aircraft represerited a continuing present danger. They had shown their
hostility clearly and could have turned around at any moment.

¢ Are there circumstances before an opponent's first shot when the threat is
sufficiently imminent to justify self-defense? What if the Cuban missiles were
known to have nuclear warheads and an attack on the United States appeared
imminent? I have already referred to the truck bomber and the kamikaze pilot
where the attack had been initiated but had not yet struck.

Until the Israeli destroyer Eilat was destroyed by Styx missiles from an Egyptian
patrol boat in 1967, naval commanders usually assumed that they could “take
the first hit” and still have time to defend themselves effectively. In ROE lingo,
having to take the first hit means that potential enemy forces cannot be declared
“hostile” even in times of high tension unless they have been guilty ofa “hostile
act” (e.g., shooting first). As D.P. O’Connell, an authority on the influence of
law on navies, put it: “Following that event [the Eilat sinking] naval speculation
experimented with clarifying the ambiguous borderland between ‘hostile intent’
and ’hostile act,’ so as to encompass the possibility of anticipating immediate attack
so that tactical advantage would not pass irrevocably to the potential assailant.
This has usually [included] . . . combinations of such matters as the unhousing
of a missile or the locking on of a fire-control radar in firing positions.””>


PREFACE

By coincidence, today marks the 110th anniversary of the beginning of the
first class of students at the Naval War College in 1885. As the small group
gathered in a structure originally designed to serve as Newport’s poorhouse and
“deafand dumb asylum,” lacking money—not only for books and furniture, but
even for heat and light—Acting Rear Admiral Stephen B. Luce noted that the
building would at least provide “shelter” and declared: “Poor little poorhouse,
I christen thee the United States Naval War College.”! It was the austere
beginning of something very important—an event of landmark significance for
the profession of international law.

The Naval War College’s Contribution to International Law

Rear Admiral Stark notes in his foreword that international law has long
played a central role in the Naval War College curriculum. But, with charac-
teristic modesty, he neglects to make the corollary observation that the Naval
War College has played a very important role in the development both of
substantive international law and the teaching thereof. From our perspective,
such a conclusion is clearly warranted. Some brief history may be useful to
illustrate that observation.

Lacking funds in its infancy, the War College was dependent upon visiting
lecturers who would volunteer to travel to Newport at their own expense to
teach the first class of students. The first such lectures were by Professor James
Soley—then the Librarian in the Department of the Navy, but soon to become
Assistant Secretary of the Navy—who addressed the important topic of interna-
tional law.

According to the centennial history of the Naval War College,” by 1894 the
curriculum had expanded to include seven parts, the very first of which included
“lectures on professional subjects, including international law.” This series of
twenty-two international law lectures was delivered by Professor Freeman
Snow, of Harvard Law School, who brought with him the “case method” of
study which he was helping to pioneer at Harvard at the time—an approach that
was later to become a standard tool of legal education in America.

When Professor Snow passed away during the 1894 War College term, Rear
Admiral Henry C. Taylor entrusted Commander Charles H. Stockton with the
task of editing and expanding Professor Snow’s lectures into a text on interna-
tional law. Published in 1895, it was to be the first of many War College books
on the subject. Along with Professor Snow’s 1893 Cases on International Law,
the new War College volume provided an important teaching tool for law
schools around the country.


Chapter 5

Law of the Sea*

Elliot L. Richardson

(From an address to the students of the Naval War College, February 16, 1979.)

his presentation is intended to discuss where the Law of the Sea Conference

now stands. Because your bases of information are so varied, some basic
background is in order. The United Nations Conference on the Law of the Sea
that is now underway began in 1974, It is the third U.N. Conference on the
Law of the Sea; the first in 1958 developed several conventions, one of the most
important of which is the Convention on the Continental Shelf; the second one
in 1960 attempted to deal with the high seas and territorial waters, and ended in
failure when agreement on a 12-mile territorial sea failed by one vote. The
present one began out of the realization that there needed to be comprehensive
extension and revision of customary international law to accommodate a series
of developments that had been emerging and gaining force over a decade or
more,

There were in the first place a number of technological developments that
had to be recognized; for one thing, the advancement of technology involved
in drilling in deep water in the Continental Shelf. This presented a problem,
partly because the Continental Shelf Convention of 1958 adopted an ex-
ploitability test to define the outer limits of national jurisdiction. A nation’s
jurisdiction over the shelf under that convention extends as far as technological
capacity permits the exploitation of the resources of the shelf. And that, of course,
has meant that the boundary has been extending progressively seaward as
technological capacity has evolved. But in the meanwhile it also had become
apparent that it was only a matter of time until the capacity would also exist to
mine the resources of the deep seabed. These are, for the foreseeable future,
resources of manganese nodules originally discovered by H.M.S. Challenger over
100 years ago. These black, potato-sized objects, found at depths of 14,000 feet
to over 20,000 feet on the bottom of the ocean around most of the world, are
valuable because they contain significant quantities of nickel, copper, cobalt, and
manganese. Devices were under development that could pick nodules up from
the sediment where they lay, pump them to the surface, and extract the minerals.

* Reprinted from the Naval War College Review May-June 1979.


Richardson 69

Besides that, I think we see today that the community of nations has reached
a point at which the sense of independence and autonomy felt by many countries,
perhaps all countries, is such that simply to be big and strong does not confer the
power to act in disregard of the interests of smaller States. We no longer live in
a world in which gunboat diplomacy is tolerated, and the establishment ofa clear
and accepted regime of the ocean that includes adequate recognition of maritime
interests can help us to escape the necessity of choosing between accepting the
undesirable restriction of navigational freedoms or asserting them only at the cost
of the destruction of good relations and the charge of behaving like a bully.

It is, I think, impossible now to be confident that the Conference will succeed
in resolving the remaining issues before it. I hope it can. Like most participants,
I believe that the success of the Conference would make a major contribution
to the rule of law. We also believe that this, perhaps the most ambitious
negotiating effort ever undertaken by the world community, would, ifsuccessful,
enormously strengthen confidence that complex problems cutting across national
lines are capable of negotiated solutions. Conversely, the failure of the Con-
ference would be a serious setback to this hope.

After a 3-week intersessional meeting early this year, negotiations resumed on
19 March. Many countries are increasingly feeling the strain of allocating
top-level people to the Conference. The prospect that the United States and a
few other countries may go forward with unilateral seabed mining legislation has
also contributed to a sense of urgency toward bringing the work of the
Conference to the earliest possible close. And though the intersessional meeting
scored no dramatic gains, it was successful, nevertheless, in the somewhat ironic
sense that it sharpened the remaining divergencies in a way that exposed the
underlying economic realities with a minimum of ideological and political
thetoric. We have, in a sense, positioned ourselves for a major effort to see
whether we can close the remaining gaps. I hope we can, and yet I cannot
confidently predict it. For my own part, I find the effort exceedingly difficult,
demanding, complex, and often frustrating, but I can assure you that it is never
boring.

Because the answers to questions following Ambassador
Richardson’s presentation cover points not raised in the address, they
are included here.

Do you have any plans to go ahead with a treaty, to get it signed and to get agreement
on 90 percent of the issues, even if you can’t achieve consensus for such things as seabed
mining and a few other points?

From the standpoint of the United States and other major maritime countries,
it would be of great benefit to be able to consolidate in a treaty the matters that


Boma 213

In this force mix, the Harpoon missile-equipped ships would provide long
range, antisurface warfare protection against the potent North Korean missile
and torpedo-firing fast-patrol boats. Additionally, all three ships are capable of
carrying and supporting LAMPS helicopters, which would add critical airborne
early warning and stand-off ASW capability to the force. With the exception of
the exercise of “innocent passage” within a territorial sea,” such aerial recon-
naissance is fully consistent with high seas freedom of operations and in keeping
with the desired defensive posture.

In the alternative, should greater capability be desired, a larger force might be
readily found in the form of a battleship surface assertion group (BBSaG). This
would provide additional punch to the group, especially in the area of ASUW.
However, with the advent and proliferation of stand-off, antiship cruise missiles,
the additional capabilities of this grouping are not necessarily decisive. Never-
theless, from a psychological viewpoint, the BBSaG would give greater pause for
reflection and might intimidate would-be aggressors.

Air cover for the group would be optimally provided by a carrier battle group
operating in associated support in waters well clear of the disputed area. The
second choice would be to provide USAF, USN or USMC aircraft cover from
nearby Japanese bases, although political and diplomatic considerations might
preclude this. As a last resort, USAF or ROKAF assets from the Republic of
Korea could furnish this protection, but the perceived escalatory potential of this
option would seem to militate strongly against its adoption.

Concept of Operations. Once formed, the hypothetical SaG should transit the
area in such a fashion so that the planned intended movement (PIM) of the
formation is on a course which opens the North Korean coast as it transits through
the military boundary zone. For example, the ships might get underway from
Pusan and proceed north remaining within 25-40 miles of the South Korean
coast. Upon entering the military boundary zone, the formation could turn
northeast and proceed through the area until reaching the boundary of the zone.
Ifthe ships entered from the north, the initial track would be slightly southeasterly
so that a gradual opening of the range to the coast could be achieved. The initial
transits might be initiated at a range of 40-50 miles from the North Korean coast
to provide the force with ample “sea room” in which to acquire and engage any
detected threat. Further, this would minimize the provocational potential of the
initial transit. Assuming that initial operations were successful, and relying upon
gradual desensitization to these operations, successive transits might gradually
close the coast.

However, under no circumstances is it recommended that these forces enter
the claimed 12-mile territorial sea in order to assert “innocent passage” rights.
In this writer’s opinion, such an attempt would virtually guarantee an engage-
ment. The legal justification for this nonassertion of the rights of innocent passage




586 Readings on International Law

Environmental Modification Techniques (ENMOD Convention) that the use
of this weapon was legally proscribed.” In brief, this convention commits each
party not to engage in military or any other hostile use of environmental
modification techniques that cause widespread, long-lasting, or severe destruc-
tion, damage or injury to any other State which is a party. 0 A formal “under-
standing” among all the participants defines the phrase “widespread, long-lasting
or severe.” “Widespread” is defined as “encompassing an erea on the scale of
several hundred square kilometers”; “long-lasting” is defined as “lasting for a
period of months, or approximately a season”; and “severe” is defined as
“involving serious or significant disruption or harm to human life, natural or
economic resources or other assets.”

Kuwait is a party of long standing to this convention. Iraq is one of seventeen
nations that are signatories but (having failed to ratify) are not parties. While
under Article 18 of the Vienna Convention on Treaties a signatory is obligated
not to “defeat the object and purpose” of the agreement, the ENMOD
Convention itself addresses relations specifically between full, ratifying parties;
its enforcement mechanisms, accordingly, could not have been brought to bear
on Iraq. In light of Security Council Resolution 674 (1990), which makes Iraq
“diable for any loss, damage or injury arising in regard to Kuwait and third States,
and their nationals and corporations, as a result of the invasion and illegal
occupation of Kuwait by Iraq,” a complaint under the ENMOD Convention
would not be necessary in any event.

1977 Geneva Protocol

Protocol I Additional to the 1949 Geneva Conventions was negotiated to
protect not only the population of countries at war but also the environment as
such. Two articles in the Protocol combine to prohibit the use of methods and
means of warfare that are intended or “may be expected” to cause widespread,
long term, and severe damage to the environment: Articles 35(3) and 55(1)
attempt to prevent intended or reasonably predictable excessive environmental
damage. Battlefield damage incidental to warfare is not proscribed by these
provisions, however."

Neither Iraq nor the United States is a party to the Protocol. During
negotiations in Geneva the United States made clear its understanding that
nuclear weapons were not to be included within the scope of Protocol I. During
the ratification debate, however, it became clear that many nations took the more
expansive view that Articles 35(3) and 55(1) would indeed place limitations upon
nuclear weapons. Should the provisions be held to apply to nuclear arms in the
future, the careful balance fashioned with the other nuclear powers in existing
agreements affecting those weapons could be adversely impacted.’ It can be
persuasively argued, however, that the prohibitions included within the two


582 Readings on International Law

First, I do not believe that the world’s future is best served by seeing enemies
around every corner. The need for cooperation in a world increasingly inter-
dependent makes me believe, instead, that he who is not my enemy is my friend.

Second, the role played by neutral States during times of crisis, war, and peace
has contributed in a positive way to the stability of the world.

What Sweden seeks to promote is respect for human rights and for interna-
tional law; nuclear disarmament; democracy (as the slowest but best way of
government); and stability and peace as a foundation for building a society for
our children that is better than the one we inherited from our parents.

Count Wachtmeister was the Swedish Ambassador to the United States from 1974 to 1989.
‘This article is adapted from a lecture delivered by Count Wachtmeister at the Naval War College
on 21 March 1989 as part of the College’s International Lecture Series, This series is sponsored by
the Naval War College Foundation.


304 Readings on International Law

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.

Rear Admiral Robertson retired from the Navy in 1976 following an assignment as the Judge
Advocate General of the Navy. He was serving as the Charles H. Stockton Professor of International
Law at the Naval War College at the time this article was written.

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 under 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 of International Law at the U.S.
Naval War College in 1991-1992. 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, opened for signature at Montego Bay, Jamaica, 10 December
1982, reprinted in The Law of the Sea: Official Text of the United Nations Convention on the Law of the Sea with
Annexes and Index (1983), Sales No. E.83.V.5 (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 n, 2, article 308. As of the time of the writing of this paper June 1992), there were
51 ratifications.

4. Statement by U.S. President, 10 March 1983, Weekly Compilation of Presidential Documents, v. 19,
No. 10, at 383 (14 March 1983).

5, American Law Institute, 2 RESTATEMENT (THIRD) OF THE LAW: THE FOREIGN RELATIONS
LAW OF THE UNITED STATES 5 (1987), (cited hereinafter 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 II 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 Affiirs, “The
Value of the 1982 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 1991), reprinted in Special Report of the Council on Ocean Law under the same title.

8. Oxman, The Regime of Warships Under the United Nations Convention on the Law of the Sea, 24 Va. J.
Int'l L, 809, 811 (1984) (cited hereinafter as Oxman).

9. See, e.g., Janis, Neutrality, in ROBERTSON, 64 U.S. NAVAL WAR COLLEGE INTERNATIONAL
LAW STUDIES, THE LAW OF NAVAL OPERATIONS 148 (1991), Lowe, The Commander's Handbook on the
Law of Naval Operations and the Contemporary Law of the Sea, id. at 109.

10. Greenwood, The Concept of War in Modern Intemational Law, 36 Int'l & Comp. L, 283, 300 (1987).

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 1911) is FULTON'S THE SOVEREIGNTY OF THE SEA (1911). Although
subtitled, “An Historical Account of the Claims of England to the Dominion of the British Seas, etc.,.. .” the


Wiegley 557

shock”), The diplomatic wounds have largely healed, partly as a result of
improved relations between Tokyo and Peking, but Japan is undoubtedly
concerned about the future of America’s new Asian policies. For example, a
desire for full diplomatic relations with the PRC could cause the United States
to abandon its relationship with Taiwan. If that were to occur, Japan’s economic
links with the Taiwan Government would be jeopardized and, not incidentally,
the level of U.S. forces in East Asia would be reduced even further. Moreover,
some Japanese analysts may be concerned that U.S.-Soviet détente will cause
‘Washington to reduce its forces in East Asia as part ofan agreement, or to improve
relations, with Moscow.

Such possibilities as these must loom large in Japan’s perception, if only because
the United States acted so unpredictably in 1971. It is therefore likely that
Japanese policymakers are particularly sensitive to the prospect of U.S. political
objectives that would affect Japan’s security interests adversely. Once such
suspicions are formed, insignificant acts by the United States are apt to be viewed
as index of an unwelcome trend, thereby eroding Japan’s belief in the U.S.
commitment for reasons Americans would not readily recognize. The problem,
then, cannot be understood simply by examining Japan’s reaction to observable
events; it is also necessary to consider that Tokyo may have unvoiced concerns
about possible shifts in U.S. Asian policy that would subvert Japan’s interests for
other US. objectives.

The foregoing discussion of Japan’s perception of the U.S. commitment has
obviously been oversimplified. Nations do not perceive anything—people do.
Undoubtedly, there is within Japan a wide range of opinions, held with varying
degrees of certainty, concerning U.S. intentions. The point, however, is that an
increasing number of Japanese are forming doubts about the U.S. commitment,
and even those with the most faith in the U.S.~Japan alliance are probably less
convinced than they once were. As will be discussed later, these doubts can lead
to a national policy that undermines U.S. interests, and they should be dealt with
accordingly.

The second major development in East Asia has been the improvement in
relations between Japan and the PRC. Tokyo officially recognized the PRC in
1972, shortly after President Nixon’s initial trip to Peking, although informal
discussions between the two countries had begun in the early sixties. Like the
United States, Japan welcomed the opportunity to establish a dialogue with an
emerging Communist power. Moreover, Japan was, and is, anxious to establish
itself as the primary source of technology and capital for an economy with a
prodigious growth potential.

The relationship between Japan and the PRC shows signs of developing into
a political alignment with very important strategic implications. In August 1978
the two countries signed a symbolic pact called a “‘peace and friendship treaty” that
called for the peacefull settlement of any disputes between them. Significantly, the


Contents ix

CHAPTER 42—GREEKS BEARING GIFTS: IMPACT
OF THE INF TREATY ON EUROPEAN SECURITY
Graham Rhys-Jones (Winter 1989)... 0.200.000 05 565

CHAPTER 43—MILITARY-TO-MILITARY ARRANGEMENTS
FOR THE PREVENTION OF U.S.-RUSSIAN CONFLICT
John H. McNeill (Spring 1994)... 2... ee eee ee ee 575


Chapter 34

The 1977 Protocols to the
Geneva Convention of 1949*

Major W. Hays Parks, U.S. Marine Corps

n 12 December 1977, a decade of international negotiation was cul-

minated when the Government of Switzerland opened for signature the
Protocols Additional to the Geneva Conventions of 12 August 1949. The United
States was one of 46 nations participating in the signing ceremony in Bern.!

Modern law regulating the conduct of armed conflict—commonly referred
to as the “law of war”—dates from the mid-19th century. Commencing with
the Geneva Convention of 1864 for the Amelioration of the Condition of the
Wounded in Armies in the Field and the U.S. Lieber Code of 1865, “Instructions
for Government of Armies of the United States in the Field,” the law of war is
intended to:

Protect both combatants and non-combatants from unnecessary suffering;

Safeguard certain fundamental rights of civilians, prisoners of war, and
wounded, sick, and shipwrecked members of armed forces; and thereby to

Facilitate the restoration of peace.

Before the Geneva Convention of 1864, agreements providing protection to
noncombatants were sporadic, limited to a particular conflict and the parties
concerned, and based upon strict reciprocity. Agreements commencing with the
1864 Geneva Convention, negotiated in the aftermath of war rather than the
heat of battle, seek universal agreement, application at all times and under all
circumstances, and rely upon their consistency with the principles of war, tactical
considerations, and leadership principles rather than reciprocity exclusively for
their success.

Law of war conventions of this century reflect the evolutionary development
of warfare as well as the slow but steady definition of the rights of individuals not
engaged in battle. The principal treaty of the 14 Hague Conventions of 1907,
Hague Convention IV Respecting the Laws and Customs of War on Land,” is
in large measure a codification of those principles governing the conduct of
warfare that had evolved through the customary practice of States to that time.
An acknowledgement of the premise that the right of belligerents to adopt means

* Reprinted from the Naval War College Review Fall 1978.


Wiegley 563

improve military effectiveness without a significant increase in manpower
requirements. To be sure, technological advances are already an important
component of Japan’s defense structure, but the recent increase in Soviet strength
suggests that it is necessary to augment Japan’s defense with an even more
intensive application of the latest U.S. military technology.

Finally, when discussing the U.S.-Japan alliance, it is important to consider
economic competition between the two countries. Recent economic trends
have not been conducive to harmonious relations, and the chances for improve-
ment are not promising. The United States is presently experiencing a huge trade
deficit, largely because of imports from Japan. Moreover, the rising value of the
yen in relation to the dollar has increased the cost of maintaining U.S. forces in
Japan.

The Japanese also have complaints. Their fishing industry suffered a serious
blow in 1977 when the United States put its 200-mile economic zone into effect.
Additionally, the decline of the dollar has made Japanese goods more expensive,
and hence less competitive, in America.

Clearly, economic tensions between the United States and Japan are not going
to disappear. They can, however, be reduced if both countries are willing to
discuss the problems and make concessions in the interest of better overall
relations. Given the present state of the U.S. economy, Washington would
undoubtedly have to accept greater losses than Tokyo, but such losses should be
viewed, in the final analysis, as part of the cost of a strong U.S.-Japan alliance.

In summation, the United States is overdue for a thorough reexamination of
its role in the security of Japan. The reexamination should be a high-level, mutual
effort with Japan aimed at a better understanding and a coordinated policy. At
the very least, a concerted effort to deal with Japan’s problems and interests would
do much to allay Tokyo’s present apprehensions about the sincerity of the U.S.
commitment to the security of Japan.

Lieutenant Wiegley was assigned to the Naval Legal Services Office, Pearl Harbor, and was an
International Law of the Sea Scholar at the University of Hawaii when this article was first published.

Notes

1. Brown, United States Military Posture for FY 1979, 17 (January 1978), quoted in MOMOI, STRATEGIC
ENVIRONMENTS IN THE NORTH-WESTERN PACIFIC—A JAPANESE PERCEPTION. (Unpublished.
Delivered at Conference on Security and Development in the Indo-Pacific Arena, Fletcher School of Law and
Diplomacy, Cambridge, Mass., April 1978.)

2, Kaihara, Japan’s Military Capabilities: Realities and Limitations, Pacific Community 132 (January 1978).

3. Seth, Soviet Image of Japan, Pacific Community 500 (April 1977).

4, Id, at 503. .

5, Rees, The Gorshkov Strategy in the Far East, Pacific Community 144 (January 1978).

6. Momoi, supra n. 1 at 6.

7. Id.

8 Stephan, The Kurile Islands: Japan Versus Russia, Pacific Community 312-314 (April 1976).


Joyner 445

structure and the requisite industry officials, as well as relevant law enforcement
agencies, on shore. Most specifically, several defensive measures can be effected
to enhance security preparedness. For example, backgrounds of employees
having access to the drilling platform should be carefiully screened for past criminal
involvement or linkages to suspect political groups. All materials and containers
brought onto a facility should be inspected judiciously to guard against smuggling
of explosives or weapons aboard. Fixed schedules should be assigned so as to
prevent unauthorized entry to a platform, and specific blocking procedures
should be devised in the event they become necessary.

Not to be overlooked, actual performance of contingency plans needs to be
tested. Regularized practice sessions, as well as unscheduled ad hoc drills, would
serve to familiarize personnel with contingency options and thereby facilitate
their appropriate responses. In particular, simulation exercises involving mock
terrorist attacks could be highly instructive for underscoring strengths and also
revealing weaknesses in various contingency preparations. Important to realize,
these precautions in and of themselves won’t prevent terrorist attacks against
offshore drilling rigs or structures. They will serve as deterrents at best and may
function to minimize facility damage and casualties to the crew, while maximiz-
ing opportunities for apprehension and punishment of the terrorists.

Conclusion

As intimated by the analysis in this study, several conclusions about offshore
maritime terrorism can be posited. First, recent evidence suggests that terrorist
incidents have increased in frequency and pervasion during the last decade.
Similarly, in that same period persistent worldwide demands for additional energy
resources have made offshore hydrocarbon development economically feasible
and thus an attractive exploitation option. This tendency to go offshore can be
expected to continue throughout the 1980s and 1990s. Accordingly, then,
offshore drilling rigs and platforms owned and operated by multinational cor-
porate concerns very likely may become more favorably viewed as potential
targets for attack or extortion by terrorist groups.

Regarding legal jurisdiction over terrorist attacks affecting offshore drilling
facilities, international law plainly assigns responsibility to the coastal State.
Moreover, should the 1982 Draft Convention on the Law of the Sea enter into
force, this legal jurisdiction would be extended seaward to 200 nautical miles for
those States party to the treaty.

Concerning the precise legal status of offshore maritime terrorist activities,
they in all likelihood would not be considered as acts of piracy under international
law. Consequently response to maritime terrorism directed against offshore
extractive installations should be subsumed most aptly under the jurisdictional


452 Readings on International Law

One additional reason for concern regarding terrorism is that there are
numerous deprived people in the world today. Some, such as the PLO, have
sought the addressal of grievances through peaceful and violent means. Similar
groups and causes have become tired of waiting for their needs to be met and
have sought to take action on their own behalf. Populations such as these, and
those who would aid or exploit their cause, will resort to terrorism when such
is seen as meeting their needs.

How Should We Respond?

Having determined that there is a legitimate requirement to meet the terrorist
challenge in some way, just what does the United States do? Do we go to the
source if there is sponsorship by some government? Do we attack training camps
where the terrorists learn their trade? Do we seek out the terrorists through
undercover operations and strike them no matter where they are on a given day?
Questions such as these are of paramount interest to the policymaker and could
well determine the methods of response—diplomatic, economic or military—to
be employed.

There is general agreement that the nation has a right to defend itself when
threatened by an aggressor. Beyond this one could say that a nation has a moral
obligation to do just that and not allow its people to suffer unnecessarily. The
policymaker realizes that the choices which confront him will not always be clear
and readily discernible. What is legal may not always be moral and vice versa.
Beyond this, what is considered both moral and legal may not be politically
feasible. There needs to be an evaluation ofall three factors as policy is formulated.
However, there should be no response without some strong moral justification
at its foundation. The populace in a democracy will not view as legitimate,
immoral activities which are on a par with those of the terrorists. Claiming
justifiable defense in the protection of democratic values while employing tactics
which are similar to those practiced by the terrorists undermines public con-
fidence. While there may be some immediate emotional release no matter what
the response, thoughtful reflection over the long term will only tolerate action
based on moral grounds.

While there may be strong inclinations to employ military force as the first
and only response to a terrorist incident, care should be taken lest one acts too
swiftly. Diplomatic action, alone or in concert with allies, which could con-
ceivably impact successfully upon a terrorist group and/or its sponsor, should be
considered and employed initially. Political or economic sanctions are also
alternatives which demand consideration before military force is employed.
Should these be insufficient or not feasible, the stronger option may then be
employed. It is the perception of employing force as a last resort which helps
ensure that popular support remains when all the shouting subsides.


Parks 469

‘While moves to update the law of war can be traced back as far as 1956, when
the International Committee of the Red Cross (ICRC) unsuccessfully proposed
its Draft Rules for the Limitation of the Dangers Incurred by the Civilian
Population in Time of War, it was not until 1968 that there was any impetus
behind the move. In that year the United Nations-sponsored Tehran Conference
on Human Rights adopted a resolution requesting the General Assembly to invite
the Secretary-General to examine the “need for additional humanitarian inter-
national conventions or of possible revision of existing conventions” to “ensure
the better protection of civilians [and] prisoners [of war] . . . in all armed conflicts
and the prohibition and limitation of the use of certain methods and means of
warfare.”” General Assembly Resolution No. 2444, approved on 16 December
1968, made such a request.

This action by the General Assembly served to encourage a number of nations
to direct their attention to ICRC initiatives to update the law of war. The ICRC
is the traditional guardian of the humanitarian law of war, is possessed of a
professional staff highly knowledgeable of the law of war and, above all else, is
both neutral and apolitical. As a result, the ICRC sponsored conferences of
government experts in 1971 and 1972 to discuss the draft Protocols that it had
prepared, Forty-one nations sent delegations in 1971, 77 in 1972, with the United
States playing a very active role at each session. In 1974, Switzerland, the
depository of the 1949 Geneva Conventions, convened the first of what would
be four annual sessions of the Diplomatic Conference on the Reaffirmation and
Development of International Humanitarian Law Applicable in Armed Conflicts
to consider the draft Protocols. The fourth session, which concluded on 10 June
1977, produced the Protocols signed by the United States on 12 December 1977.

The Protocols reflect the experience of the last three decades, Protocol I
serving to further the definition of the law of war as it relates to conflicts of an
international character, Protocol II offering clarification and elaboration of the
protection afforded noncombatants and the duties of combatants in internal or
civil wars. They are intended to supplement rather than replace existing codifica-
tions of the law. Among the more significant measures there are considerations
of means and methods of warfare, legality of weapons, protection of medical
transportation, and internal warfare.

Means and Methods of Warfare. Traditionally the legality of the means and
methods of warfare have been measured by a balancing of military necessity and
unnecessary suffering. The former is defined as permitting “a belligerent to apply
only that degree and kind of regulated force, not otherwise prohibited by the
law of war, required for the partial or complete submission of the enemy with
the least possible expenditure of time, life, and physical resources.”® Article 35
of Protocol I reaffirms the longstanding principles of unnecessary suffering by
declaring:


Robertson 305

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 propositions are stated, I have not attempted to identify the precise source, (THE
SOVEREIGNTY OF THE SEA is cited hereinafter as FULTON). A second exhaustive and more modem history
may be found in SWARZTRAUBER, THE THREE MILE LIMIT OF TERRITORIAL SEAS: A BRIEF HISTORY
(1972).

12, See JEssuP, THE LAW OF TERRITORIAL WATERS AND MARITIME JURISDICTION 3 (1927),
(hereinafter cited as JESSUP).

13. Id, n. 3,

14. FULTON, supra n. 11, at 3, Fulton points out that these claims were generally recognized by other
States because the right to levy tribute was accompanied by the obligation to protect commerce in these closed
seas from pirates and other predators who swarmed over the oceans during this period. Id, at 6-7.

15, COLOMBOS, THE INTERNATIONAL LAW OF THE SEA 49 (7th ed, 1967).

16, 14,

17, FULTON, supra note 11, at 338; see also id, at 105-108,

18, GROTIUS, MARE LIBERUM (The Freedom of the Seas), (Magoffin trans, 1916).

19. GROTIUS, DE JURE BELLI AC PACIS (The Law of War and Peace), (Kelsey trans. 1925).

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 n. 11, at 338 ££
‘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 until 1635. Id, at 366-367.

21. Until the twentieth century the term most frequently used to describe the territorial sea was “territorial
waters.” In the 1930 League of Nations Conference on the Codification of Intemational Law, the question of
terminology—"‘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, Adis of the Conference

Sor the Codification of Intemational Law [1930], v. Ul., 202, reprinted in ROSENNE, 4 LEAGUE OF NATIONS
‘CONFERENCE FOR. THE CODIFICATION OF INTERNATIONAL LAW 1404 (1975), (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 International Law Commission settled
on the term “territorial sea” forits draft Convention. See Report of the Intemational Law Commission covering
the work of its fourth session, If 1952 YEARBOOK OF THE INTERNATIONAL LAW COMMISSION, 68.
‘The same term was used in the 1958 and 1982 Conventions.

22, FULTON, supra n. 11, at 549,

23, FULTON, supra n, 11, at 557-558,

24, Id.

25, Id. at S58,

26, Id, at 558,

27. Id. at 554-555,

28, FULTON, supra n. 11, Section II, Chapter 2, passim; O'CONNELL, 1 THE INTERNATIONAL LAW
OF THE SEA 128-129 (1982), (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 n. 28, at 152.

30, Supra n. 12, at 7.

31. O'CONNELL, supra n. 28, v. 1, 72.

32, See Acts of the Conference, v. III, pp. 179 and 202, ROSENNE, supra n. 21, v. 4, 1381 and 1404,

33, Report of the International Law Commission covering the work of its eighth session, 23 April-4 July
1956, UN Doc, A/3159, II YEARBOOK OF THE INTERNATIONAL LAW COMMISSION 1956, 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 n, 2, atticle 2, para. 1.

36. Jessup says that, “Asa general principle, the right of innocent passage requires no supporting argument
or citation of authority; it is firmly established in international law.” JESSUP, supra n. 12, at 120.

37. See infra nn.77-79 and accompanying text.

38, Supra n. 12, at 77.



Booth 97

the restrictions that it might entail to their own naval mobility and because of its
potentiality for causing disputes within the alliance.

The neutrals. Northern waters are militarily significant for Sweden and Finland
not mainly because they are littoral States, but because these waters play decisive
roles in both Soviet and U.S. global strategies. Any Soviet-American confronta-
tion in these waters would affect the security of the neutrals. At present, the
latter’s chief fear is not of a “direct” Soviet attack but rather fear of the spillover
of a superpower conflict.

Because NATO is an alliance held together by the sea, it follows that the
Soviet Union can use this dependence to weaken the alliance in peace, and
contribute to its defeat in war. For both adversaries, therefore, continued ability
to use the sea is crucial, for preventive and positive reasons. Ifany war in Europe
proves to be “long,” the battle of the Atlantic will, for the third time, be decisive
for the outcome. In the recent past, northern waters have witnessed two main
trends: an increasingly dangerous Soviet naval challenge to NATO naval power,
and the growth of economic and political problems that have produced a
recognition that the significance of these waters has been increasing from all
standpoints. We can expect to see more trouble in the future than we have been
accustomed to face in the past in these waters. In large part this is because we
have become accustomed to expect so little. Now the North Atlantic is an area
in which many of the changing economic and military uses of the sea intermix
in a peculiarly complex, if not particularly dangerous, fashion.

From this brief discussion of the strategic significance of northern waters it is
evident that they will become a new, albeit limited, source of international
conflict, while still remaining the arena for the major concentration of contem-
porary naval power.

Short-Term Implications: Life After UNCLOS II. As a result of the
session at Geneva in the summer of 1980, UNCLOS III produced a Draft
Convention (Informal Text), and a feeling of confidence that a treaty will finally
be signed in 1981. The treaty will enter into force when a specified number of
States have ratified it, a process that may be neither smooth nor short. There
remains some uncertainty about the precise character of the post-UNCLOS III
maritime regime, but about the military aspects there seems to be relatively little
doubt. The status quo will be maintained. The present text is satisfactory for the
naval powers: for the time being it assuages their fears about a more restrictive
regime.

From a military point of view, reading the latest UNCLOS text is like
watching Hamlet without the ghost. Strategic considerations played an important
part in the negotiating of the text, but they are most noteworthy in the
end-product by their absence. The latest text gives more restrictive powers to
coastal States, but leaves the military aspects of the exercise largely unaffected.


552 Readings on International Law

respectively.) The 1907 Convention supersedes that of 1899 for those States that have ratified the former. For
those states that have not ratified the 1907 Convention, the 1899 Convention remains binding as to their
relations with other States that are party thereto. These Conventions are reproduced in a number of official
sources, including U.S. Statues at Large, v. 32, part 2, at 1803-1826 (1901-03) (Convention II), and id., v. 36,
part 2, at 2277-2309 (1909-11) (Convention IV). They are reprinted in a side-by-side version in SCHINDLER.
& TOMAN, supra n. 23 at 63, Although the 1907 Conference adopted several conventions conceming naval
warfare, none contained a comprehensive code for warfare at sea such as that in Convention IV for land warfare.

29. U.S. Department of the Navy, LAW OF NAVAL WARFARE, NWIP 10-2 (1955), par. 511¢ and notes
34 and 35 thereto (hereafter NWIP 10-2); TUCKER, 50 U.S. NAVAL WAR COLLEGE, INTERNATIONAL
LAW STUDIES, THE LAW OF WAR AND NEUTRALITY AT SEA 71 (1957); Lauterpacht, 2 OPPENHEIM'S:
INTERNATIONAL LAW 474 (7th ed. 1952), MALLISON, 58 U.S. NAVAL WAR COLLEGE, INTERNATION-
AL LAW STUDIES, SUBMARINES IN GENERAL AND LIMITED WARS 133 (1968); Department of the Navy,
Office of the Chief of Naval Operations, The Commander's Handbook on the Law of Naval Operations, par. 8.2.1
NWP 9 Rev. A/EMEM 1-10 (1989), (hereinafter NWP 9).

30. Protocol Additional to the Geneva Convention of 12 August 1949, and Relating to the Protection of
Victims of International Armed Conflicts (Protocol 1), 8 June 1977, reprinted in English in SCHINDLER &
TOMAN, supra n. 23 at 646 (hereinafter Protocol 1).

31. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection
of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977, reprinted in English in
SCHINDLER & TOMAN, supra n. 23 at 692 (hereinafter Protocol II).

32. Judge Advocate General of the Navy, Annotated Supplement to The Commander's Handbook on the Law
of Naval Operations par. 8.2.1, n. 27 (1989).

33. NWP 9, par. 8.2.1.

34, Report of the Fact Finding Body Required to Conduct a Hearing into the Facts Surrounding the
Attack on Iraqi Oil Platforms by USS Nicholas (FFG 47) While Operating in the Northem Arabian Gulf on
or About 18 January 1991, opinion number 18,

35. Id.

36, The Abbeye Ardenne Case, U.S. War Crimes Commission, 4 LAW REPORTS OF TRIALS OF WAR
CRIMINALS 97 (1945); Trial of Helmuth Von Ruchtechell, id., v. 9, at 82 (1947); Trial of Karl Kneip, U.N.
Archives, U.N. War Crimes Commission, Reel 35, British No. 21 (1945).

37. Soldier Acquitted in Panama Slaying, Facts on File, 21 September 1990, p. 696, p. A3.

38. NWP 9, par. 8.2.1, which adopts what is described as the customary practice in the court’s opinion
in War Crimes Commission, Trial of Von Ruchteschell, 9 LAW REPORTS OF TRIALS OF WAR. CRIMINALS
at 89 (1949). NWP 9 also states at paragraph 11.10.4 that ‘customary international law recognizes the white
flag as symbolizing a request to cease-fire, negotiate, or surrender.” This contradicts, in part, the U.S. Army's
Field Manual FM 27-10, THE LAW OF LAND WARFARE (1956), which states that the only signification of
the white flag in international law is the “desire to communicate with the enemy.” See n. 43.

39. Id., citing in the annotated version U.S, Air Force Pamphlet 110-31, INTERNATIONAL LAW—THE
CONDUCT OF ARMED CONFLICT AND AIR OPERATIONS, par. 4-2d (1976); U.S. Air Force Pamphlet
110-34, Commander's Handbook on the Law of Armed Conflict 1990, par. 3-3b; and SPAIGHT, AIR POWER AND
‘WAR RIGHTS 128-130 (3d ed., 1947).

40. NWP 9, par. 11.7, citing in the annotated version, inter alia, articles 42 (1) and 42 (2) of Protocol I.

41. SPAIGHT, WAR RIGHTS ON LAND 95 (1911).

42. US. Department of the Army, THE LAW OF LAND WARFARE, Field Manual 27-10 (1956).

43, Id., par. 458,

44, See, e.g., Bronner, The Law: Intemational Experts Defend U.S. Demands of Iraqis, The Boston Globe, 27
February 1991, p. 3.

45. ““Feigning surrender in order to lure the enemy into a trap, is an act of perfidy.” NWP 9, par. 12.1.2.

46. NWP 9, par. 12.1.

47. Supra n. 41 at 92.

48. Id. at 91.

49. Hague Il and IV, art, 22. Additional Protocol I states the principles in slightly different language as
follows: “In any armed conflict, the right of the Parties to the conflict to choose methods or means of warfare
is not unlimited.” Protocol I, art. 35(1).



DeCamp 329

warriors. The cost of American action in Grenada was great, but the cost of
inaction might have been far greater. The Spirit lives.

Captain DeCamp was serving as the Commanding Officer H&S Company, 3rd Battalion, 8th
Marines at the time this article was first published.

8.
9.
10,
11.
12.

26.
27,

Notes

Text of Briefing at the White House, The Boston Globe, 26 October 1983, p. 2.

. GROTIUS, THE LAW OF WAR AND PEACE 73 (Kelsey trans, 1925).

Philip Taubman, U.S. Reports Evidence of Iland Hostage Plan, The New York Times, 28 October 1983,
Why the Surprise Move in Grenada—And What Next? U.S. News and World Report 33 (7 November

VON GLAHN, LAW AMONG NATIONS 161 (1976).

5. Weighing the Proper Role, Time 49 (7 November 1983).

FAWCETT, LAW AND POWER IN INTERNATIONAL RELATIONS (1982).
Supra n. 5 at 163-164.

Td, at 165-166.

‘Will, The Price of Power, Newsweek 142 (7 November 1983).

WALZER, JUST AND UNJUST WARS xiii (197).

Supra n. 10 at 142.

CRAIG & GEORGE, FORCE AND STATECRAFT 275-276 (1983).

. Td, chap. 19.

. Yoder, Military Action and the Lawyers? Quibbles, The Boston Globe, 29 October 1983, p. 15.
5. Supra n. 15 at 15.

. Supra n. 11 at 106.

. Td, at 101.

. Td, at xii.

Supra n. 10 at 142.

.. French Bishops Face Up to Nuclear Peril, The Wall Street Journal, 29 November 1983.

PERKINS, THE AMERICAN APPROACH TO FOREIGN POLICY 72 (1962).
Supra n. 13 at 270.

|. SCHWEITZER, THE EVOLUTION OF ETHICS, Unified English Composition 241.

Supra n. 10 at 142.
Woolsey, Military Options: Backward March, The Washington Post, 25 February 1980, p. A22.
‘WATSON, CHIEF OF STAFF: PRE-WAR PLANS AND PREPARATIONS (U.S. ARMY IN WORLD

‘WAR II) 12 (1950).

28.
29.

Supra n. 11 at xvi.
Id, at 327,


Terry 461

attack on its citizens, and when an appeal to the authorities of the foreign State
“Gs fruitless or not possible, or if there is danger in delay, a case of necessity arises”;
then “the threatened State is justified in invading the neighboring country and
disarming the intended invaders.”*> Lauterpacht further points out that every
State judges “for itself, in the first instance, whether a case of necessity in
self-defense has arisen,” but that “it is obvious that the question of the legality
of action taken in selfpreservation is suitable for determination and must
ultimately be determined by a juridical authority of political body .. . .”*° The
United States has long taken the position that each nation is free to defend itself
and is the “judge of what constitutes the right of self-defense and the neces-
sity... of same.”” Similarly, more than half a century ago Secretary of State
Frank Kellogg noted that when a State has resorted to the use of force, “if it has
a good case, the world will applaud and not condemn its actions.””*

The use of force as a reprisal or punishment presents the greatest dilemma. If
the terrorists holding U.S. hostages in Lebanon were summarily to execute them,
and it were shown that a specific country had sponsored their acts, could the
United States execute punitive raids against the State? Although the grisly nature
of terrorism often invokes strong public sentiment for retaliative action, the
present international law may not permit the use of force in reprisal against a
violating State. The “Declaration of Principles of International Law On Friendly
Relations Between States,” adopted unanimously by the U.N. General Assembly
in 1970, declares categorically: “States have a duty to refrain from acts of reprisal
involving the use of force.””” The United States supported the declaration, and,
like other nations, has gone on record in stating that it considers reprisal to be
unlawful in contrast to acts of lawful self-defense.>>

While there will continue to be debate on whether reprisals are legally
permissible, it is clear that coercive actions whose purpose is protective are more
easily justified than actions whose express aim is punishment. The more impor-
tant point is that military response to State-supported murder of hostages, one’s
own nationals, would be justified under the doctrine of self-defense as a necessary
and proportional coercive action to eliminate a continuing threat.

Proactive Responses Authorized Under International Law

The decision to use force against the terrorist must be as closely tied to a clear
objective as is the case in planning at the higher end of the coercion spectrum.
Because the relationship between objective and threat is often unclear in the low
intensity conflict arena, a strategy to fight State-supported terrorist violence must
always focus on the underlying political purpose of the States presently supporting
terrorist organizations, That purpose is unquestionably our removal from the
region concerned. How do we counter this purpose, this objective? Secretary
of State Shultz was correct when he stated that our policy “. . . must be


470 Readings on International Law

(1) In any armed conflict, the right of the Parties to the conflict to choose methods
or means of warfare is not unlimited.

(2) It is prohibited to employ weapons, projectiles and material and methods of
warfare of a nature to cause superfluous injury or unnecessary suffering.

The classic example of the balancing of these two considerations is that of an
infantry unit delayed in its attack by a lone sniper hiding at the edge of a village.
While incidental injuries are an unfortunate but not prohibited aspect of war,
the calling in of an artillery barrage to take out this lone sniper potentially would
cause greater damage to the village and its inhabitants than is warranted. Herein
lies a third factor in the means and methods equation, that of proportionality. In
weighing incidental injury to civilians, the degree of such injury must not be
disproportionate to the military advantage to be gained.

During the Vietnam War, for example, the North Vietnamese installed
substantial concentrations of antiaircraft guns and missiles on the earthware dikes
and dams surrounding Haiphong and Hanoi. Military necessity warranted airstrikes
against these positions. However, attack of the positions with conventional
ordnance would destroy not only the enemy positions but the dams as well. This
would result in massive flooding and in the probable deaths of several hundred
thousand civilians, a cost U.S. authorities concluded was disproportionate to the
military advantage to be gained. When the mission finally was approved by
President Nixon, it was executed with a clear proviso that only antipersonnel
bombs, capable of neutralization of the positions without substantial damage to
the dikes, would be used.

While examples of this balancing of military necessity, unnecessary suffering, and
proportionality are common-place in U.S. practice, the concept of proportionality,
though part of customary international law, has not found its way into previous
codifications of the law of war. This legislative lag has existed since 1911 when
Italy conducted the first bombardment by aircraft (in the Libyan War against
Turkey). As with other successful weapons, once the military efficiency of the
airplane was realized, suggestions for the regulation of its use failed because of
inadequate sponsorship. Thus attempts to codify the proportionality concept in the
“Rules of Air Warfare” drafted by the Commission of Jurists meeting at The
Hague in 1922-23 flew in the face of airpower arguments that “terror” bombing
of the civilian population would destroy the morale of the enemy and hasten the
end of any war. Although this theory was contradicted by the experience of both
sides during World War II, legislation regulating aerial bombardment and
codifying the rule of proportionality was not immediately forthcoming, prompting
one expert to offer the following observation regarding the state of the law?

Here are two villages in an occupied country. Detachments of the enemy are going
through them. Unidentified inhabitants shoot down some fifteen soldiers. A rapid


380 Readings on International Law

foreign officials, official guests, or internationally protected persons within the
territorial jurisdiction of the United States.”> Thus, certain politically motivated
offenders are now denied the claim of right to haven by international agreement,
even though the proscribed offenses may be of a limited classification.

The politics of atrocity engulfing Western Europe in the early and mid-
197056 galvanized the European Economic Community into taking some form
of remedial action. Beginning in June 1976, the member states of the E.E.C.
undertook a program of cooperation and collaboration” that ultimately resulted
in the adoption by the Council of Europe ofa convention on the suppression of
terrorism that negated the political offense exception for specifically enumerated
acts of terror violence.”* Although the convention was not tightly drafted and
has yet to be ratified, and although the republics of Ireland and Malta refused to
sign,” the fact that 17 European Governments had resolved to place limitations
on haven for political criminals engaged in acts of terror violence has great
significance for the future. The threat posed to world public order by political
terrorism, especially to pluarlistic democracy, had at last been perceived and a
line of proscription, however tenuous, was finally drawn.

Similarly, the world community was forced to adopt a more rigorous position
on international criminality as a result of increased aerial hijackings and hostage
seizures. With some reluctance, under strong pressure from the International
Federation of Airline Pilots Association (IFALPA), the U.N. General Assembly
on 3 November 1977 agreed by consensus to condemn the unlawful interference
with air transport and urged member States to take any and all means to combat
such offenses. But the Assembly also criticized any unilateral actions directed
against sheltering States.>° On 22 July 1977 the Federal Republic of Germany
submitted to the U.N. General Assembly a draft convention against the taking
of hostages that stressed the long-established but rarely adhered to international
legal norm of aut dedere aut punire (extradite or prosecute).?! The West German
proposal, as it came to be called, has languished in the General Assembly despite
the celebrated Mogadishu incident. West Germany had originally come forward
with its stringent suggestions in its capacity as member of the Ad Hoc Committee
on Hostages created by the Assembly on 15 December 1976.*? In February 1978
the two working groups of the Ad Hoc Committee reported belatedly that they
could not agree on a draft convention, foundering on the rock of national
liberation movements.?

The U.S. position has been erratic at best, and often evasive, with executive
and legislative branches assuming contradictory positions. “Terrorism, like
piracy, must be seen as outside the law.”** This statement by Secretary of State
Henry A. Kissinger made before the American Bar Association Annual Conven-
tion in Montreal on 11 August 1975 sums up official U.S. policy during the
Nixon-Ford administrations. Beginning with the U.S. Draft Definition on
International Terrorism submitted to the U.N. General Assembly in 1973,2° the


Index

policy on terrorism and counter-terrorism, 424
rejection of 1982 Convention on the Law of the Sea, 159, 189, 263
Soviet relations, 576-577, 577-578
unilateral use of force against Libya, 354-355, 360-361, 362
Rebellion, domestic
USS. law regarding suppression of rebellion, 414- 415,
Reciprocity principle, 36, 467, 475
Rees, David, 231-232, 232, 233, 235, 237
Reisman, Professor Michael, 280
Reprisals, 370, 460, 461, 483
Republic of China. See China, People’s Republic of
Republic of the Philippines. See Philippines, Republic of
Resistance fighters. See Liberation movements, national.
Resource claims
Abu Dhabi Case of 1951, 88
Bering Sea, 222-223
hydrocarbon exploitation, 223
Qatar Case of 1950, 88
Resources, ocean
conservation, 370
exploring/exploiting, 439
managing, 438-439, 442
protecting, 442-444, 445-446
Revised Informal Composite Negotiating Text (RICNT), 73, 75-76, 77, 78-79
Revised Single Negotiating Text, 52
Revolutionaries. See Liberation movements, national.
Rhodesia, guerrilla attack on airliner, 377, 378
Ribas-Dominicci, Air Force Captain L., 354
Ribicoff, Senator Abraham A., 381
Richardson, Elliot (U.S. Ambassador to UNCLOS III), 285-286
Riffley, Bill, 321-322
Rio Treaty. See Inter-American Treaty of Reciprocal Assistance.
Rivkin, Jeremy, 516
Roberts, Brad, 512
Robertson, Myles, 235
Rogers, Secretary of State William P., 379, 382
Roman law recognizing freedom of the seas, 265
Roosevelt, President Franklin D., 135, 527
Rules of Engagement (ROE), 479-490
anticipatory self-defense, 331-341, 481, 482-483
consistency with international and domestic law, 479-480, 481, 484
hostile acts and hostile intent, 483
in the Falklands/Malvinas War, 315-319
neutral territory, 484
North Atlantic Treaty Organization (NATO) role, 484-485
peacetime and wartime ROE distinguished, 482
purposes, 481-482
pursuit, 483-484
U.S. ROE, 480-481, 485-486, 487-488
‘Weapons limitations, 481. See also Law of armed conflict; Weapons.
Ruses, use of. See Deception.
Russo-Japanese War, 233, 468
Rybakov, Yuri (Soviet Ministry of Foreign Affairs), 256-257

611


Richardson 67

Turning now to seabed mining, we have a host of difficult and unresolved
issues. Whereas in the case of navigation, overflight, innocent passage, transit
through straits, etc., the Conference has been dealing with the codification,
evolution, and adaptation of customary international law, in the case of seabed
mining we have been seeking to draft a constitution for a new kind of
international organization. This organization would have responsibility for access
to and management and control over the resources represented by the manganese
nodules. This management and control would be exercised by an International
Seabed Authority with two governing bodies: an Assembly in which all members
would be represented on a one-nation, one-vote basis and a Council, a smaller
body, in which there would be representation of such particularly concerned
interests as the seabed miners, major consumers of the metals involved, and the
land-based producers of those metals who are concerned by the potential damage
to their economies resulting from competition by seabed mining.

We still face exceedingly difficult problems with respect to how these interests
will be represented and how votes will be taken in the Council. There are
problems with respect to the creation of an operating entity for the International
Seabed Authority that will be called “The Enterprise.” The Enterprise will in
effect be an international corporation created to conduct seabed mining. There
have been problems of how it would be financed and how it would acquire the
necessary technology to engage in seabed mining. The land-based producers have
been able to persuade the Conference that they need the protection of a
production ceiling on seabed mining, and that leads to a number of problems
with respect to the availability of a sufficient number of contracts for seabed
mining for member countries, and their State-sponsored entities, including
private companies.

There are problems of how to fix the schedule of payments to be made by
companies to the Authority in the form of initial fees, royalties, and profit-shar-
ing. There are a great many other problems also raised by the necessity of creating
a structure that can deal with all aspects of an entirely new, risky, and very
expensive industry. It is estimated that a single seabed mining project will cost
up to a billion dollars, including the costs of prospecting, exploration, and
technological development as well as the construction of seabed-mining ships,
transportation vessels, and shore-based processing facilities.

Here, more clearly than anywhere else in the Conference, we have a cleavage
between north and south, developed and developing countries. The Group of
77, representing the developing countries, is seeking a maximum role for The
Enterprise, and the industrial countries are insisting upon maximum oppor-
tunities for their companies to obtain contracts with the Authority and security
of tenure under those contracts. The seabed-mining provisions of the treaty have
tended to dominate public attention in the United States recently, although they


Index

McDougal, Professor Myer S., 53, 370, 458-459
McFarlane, Robert C. (assistant to President Reagan for National Security Affairs), 455, 457
McGiffert, David E., 419-421, 422
McHenry, Secretary of War James, 356
McNamara, Secretary of Defense Robert, 35
McNaughton, John, 35-36
Media coverage of terrorist actions, 404, 428, 449, 451
Medical transportation, protections during armed conflict, 473-474, 496
Menon, Rajan, 232
Mexico, seabed restrictions, 290
Military, U.S. See also urider individual branches.
congressional powers over, 355-363, 412-413
politicization of the military, 413
Posse Comitatus prohibitions against domestic uses, 413-414, 415, 418, 419, 425
presidential powers over, 355-363, 412-413, 418
public regard and support for, 411-412, 452, 457
response to domestic terrorism, 411-422
rules of engagement (ROE). See Rules of engagement (ROE), U.S. ROE.
Military-to-military arrangements, U.S.-Soviet (U.S.-Russian), 52, 255-256, 575-581
Militia Act of 1795, 359
Militias, U.S. state, role in suppression of rebellion, 414-415
Mill, John Stuart, 328
Mindszenty, Cardinal, 40
Mine warfare
geographical limits, 301
Hague Convention (VIII), 298
legality of mines, 472
mining during armed conflict, 300-301
peacetime mining, 299-300
recommendations concerning, 302-304
Mitchell, Senator George, 373
Miyazawa, Foreign Minister, 562
Modica, Charles, 322
‘Mogadishu rescue of hijacked Lufthansa aircraft, 380, 388, 393-394, 397, 419-420, 421, 460
Monroe Doctrine of 1823, 26
Monroe, President James, 459
Montaigne, Michel Eyquem de, 326
Montego Bay Convention. See U.N. Convention on the Law of the Sea (1982).
Montreal (1971) antihijacking convention, 378, 382, 394, 403
Montreaux Convention, 102, 247, 284
Moore, Professor John Norton, 195, 369
Moro, Italian Premier Aldo, 377
Multilateral agreements on protecting the environment, 87, 89-90
Multinational investments in ofBhore drilling, 435
My Lai incident, 468

N

Nagumo, Admiral, 232
Napalm, 472
Narcotics/drug trade, Optional Protocol to the Single Convention on Narcotics (1972), 382
Narrow territorial seas. See Territorial seas, 3-mile limit.
National Command Authorities (NCA), 480-481, 483, 569
National defense. See also Self-defense.
responding to terrorism, 439-440, 442-444, 446, 452
NATO. See also INF Treaty.
bases, 19

605


174 Readings on International Law

* It would mean taking military risks—for example, in challenging assertions
of coastal-nation restrictions on ofShore naval movement, or in protecting U.S.
seabed miners.

* There would certainly be legal challenges in the International Court of
Justice.

The impact of these uncertainties will fall, in the first instance, on those charged
with planning the movement of military ships and aircraft on, under, and over
the sea. There will be added political and, perhaps, military risks in, e.g., sending
aircraft or submerged submarines through straits bordered by one or more states
that object to such passage on a legal ground or in carrying out maneuvers within
200 nautical miles of those coastal nations who might challenge freedom of
navigation in their EEZs. While these risks will, in some cases, suggest that
alternative routes or sea areas be selected, in other cases the planners might well
decide to challenge the assertions of illegality by doing just the opposite: that is,
by sending ships and aircraft into the disputed areas to prevent the perception of
acquiescence in the claims of the coastal States.

For the officers on the bridges and in the cockpits, the present and future
uncertainties concerning the military uses of the seas will translate into a
somewhat greater risk of challenge and confrontation in disputed straits, ar~
chipelagic waters, and EEZs. These officers, as representatives of the U.S.
Government, will be on the cutting edge of the further development of ocean
law rules. Their missions should be carefully planned and executed so that, in
concert with ongoing diplomatic efforts, their actions will help to ensure that
the broadest possible freedom of ocean navigation and overflight will continue
to be part of the fabric of the international law of the sea for decades to come.

Professor Jacobson was on the School of Law faculty, University of Oregon when this article
was first published. Additionally, he held the Charles H. Stockton Chair of International Law at
the Naval War College for the 1982-83 academic year.

Notes

1. United Nations Convention on the Law of the Sea, opened for signature at Montego Bay, Jamaica,
on 10 December 1982, U.N. Doc. A/CONF. 62/122(1982) [hereinafter cited as 1982 Convention].

2. Department of State Bulletin, August 1982, p. 71.

3, Proclamation No. 2667, 10 Fed. Reg. 12, 303 (1945).

4, Proclamation No. 2668, 10 Fed. Reg, 12, 304 (1945).

5. Convention on the Territorial Sea and the Contiguous Zone, 29 April 1958, 15 U.S.T. 1606, T.LA.S,
No. 5639, 516 U.N.T.S. 205.

6. The “contigu
State's territorial sea, Article 24, in the zone, the coastal State is authorized to prevent and punish violation of
its regulations concerning customs, immigrations, fiscal matters, and sanitary measures. The maximum limit
for the contiguous zone is twelve nautical miles from shore.



Farrell 421

— Located at Little Creek, Va. (7), Coronada, Calif. (10), and Subic bay, Phil.
@

— Capable of infiltration/exfiltration by submarine, boat, ship, aircraft, and
parachute

7. Air Force Support

— Special mission aircraft

— Combat Talon—nap-of-the-earth penetration methods. Located in Florida,
Okinawa, and Germany

— Combat specter gunships located in Florida

It is obvious from this listing that the U.S. Forces that have been designated
are heavy in terms of men, equipment and firepower when compared to their
European counterparts.

McGiffert’s testimony to the Senate subcommittee further stated that:

* Depending on the nature of the mission, the size of U.S. military forces may
range from a small element to a larger task force.

« Force size is scenario-dependent and the division of labor between units is
tailored to specific circumstances and technical requirements.

* Counterterrorist exercises have been conducted.

In terms of planning:

* The JCS has developed plans to provide for U.S. military operations to counter
terrorist activities overseas.

© There are a number of terrorist acts that might trigger a U.S. military response.
Possible military missions range from the rescue of hostages from a hijacked U.S.
aircraft to recovery/neutralization/destruction of stolen nuclear weapons.”

Yet one analysis of the degree of U.S. preparations led its authors to contend
that:

Today, the United States has no single unit equivalent to the West German Border
Group Nine (Grenzschutzgruppe Neun or G.S.G.-9 for short), successful at
Mogadishu, which is authorized to act outside of our borders in response to terrorist
action aimed at American interests or citizens abroad. Domestically, we have three
degrees of antiterrorist capabilities: First, some local police departments have
developed and fielded antiterrorist units. At the second level of slightly higher
response, we find a few state and Federal special teams and armed forces elements
with limited special training. Whether the state units could operate internationally
or the military could perform domestically is questionable, but at least the raw
resource is recognized and present to some degree. At the highest tier, that of
transnational terrorism, however, there is a cloud."

Both the authors of this study and other have made reference to “Blue Light.”
The term possibly came from the flash of the stun grenades that were used at


MacDonald 93

approach to the marine environment.” Subsequently, Iran stressed that “primary
jurisdiction should rest with the coastal State,” which should have “enforcement
powers.”°8

Saudi Arabia also addressed the marine pollution problem. In the seventh
session in 1978, Saudi Arabia, along with other Arab States, expressed a serious
concern for establishing “responsibility and liability” for any damage to the
marine environment.?

Future Legal Developments and the Regional Context: A Conclusion. When
fature possibilities in the Persian Gulf are considered with a view to previous
experience, it is apparent that the regional concerns of the Gulf States would
continue to predominate over the international law being developed at UN-
CLOS III. While Iran and Saudi Arabia have participated in the United Nations
law of the sea conferences and have relied on “Western” sources and principles
to support their claims, they have based their legal positions on their own national
interests that have run counter to those of the maritime powers. Moreover, the
political and geographic circumstances in the Gulf, the regional context, have
proved to be the final determining factors in the substance and timing of their
legal claims (and in their refusal to accept the 1958 law of the sea conventions).

With future developments tied to their interests within the Gulf, their real
legal focus is probably going to be on the achievements of the Kuwait Regional
Conference and the preliminary efforts to form a permanent regional organiza-
tion for the control of pollution in the Gulf, rather than on how the final
UNCLOS III treaty will deal with pollution control or the preservation of the
marine environment. Furthermore, the security interests of the Gulf States in
light of their mutually expressed desire to avoid any superpower presence within
the Gulf will be more fundamental to the establishment of a special regional
regime than any agreement at UNCLOS III. Whether the Persian Gulf will lose
its previous status as high seas and actually become a “closed sea,” will be
determined by the interests within the region. The Persian Gulf perspective on
the law of the sea is essentially a regional perspective determined by the
geographic peculiarities and factors and forces within the Gulf.

Charles McDonald received his Ph.D. from the University of Virginia. He was an assistant
professor in the Department of International Relations of Florida International University at the
time he wrote this article.

Notes

1. US. Dept. of State, Bureau of Intelligence and Research, Sovereignty of the Sea, Geographic Bulletin
No. 3, rev. ed. (Washington: U.S. Govt. Print. Off, 1969), at 18-27.


78 Readings on International Law

could have left the problems of adjustment to such existing mechanisms as the
International Court of Justice (I.C.J.) or to ad hoc arbitration techniques agreeable
to the parties involved. One of the factors motivating Conference negotiators to
address problems of dispute settlement may have been the unwillingness of
nations to submit disputes to the I.CJ. for resolution. The I.CJ. hears few cases
of real significance,” and there is no reason to believe that law of the sea problems
would become an exception to that pattern. Perhaps as a consequence the
RICNT contains a number of provisions designed to compel signatory nations
to submit irresoluble disputes to one of the third-party settlement mechanisms
enumerated in the text. Significantly, however, there are a few optional excep-
tions to the requirement for compulsory settlement of disputes. One such
exception would permit signatory nations to withhold from compulsory settle-
ment disputes involving military activities.> While that may seem to be an
exception larger than the rule, it expresses an important reality of international
politics: nations will not entrust their military options to third-party tribunals
because of the risks, however small, of rulings adverse to their own perceptions
of their national security.

One author has suggested that the United States should not support or adopt
the “military activities” exception in the RICNT because, while ostensibly
favorable to the naval powers, it could be used by coastal States to avoid judicial
review of restrictive jurisdictional claims.”® According to this view, compulsory
settlement of disputes involving naval activities would result in recognition of
the rights of the naval powers because the strongest legal position is one that
follows from the literal interpretation of an international convention. While that
might be true in an impartial context, it cannot be assumed that a third-party
tribunal will render decisions free from the vicissitudes of international politics.
The military activities of any highly developed State reflect, among other things,
that State’s assessment of its own security interests; it is unrealistic to expect that
such interests would be delegated to a decision-making body with possible biases
against powerful or affluent States.

Naval power is a highly visible and effective expression of national strength.
As such, it symbolizes for some nations the inequities in world power which, in
their view, are no more justifiable than the colonial empires that were built on
naval supremacy. It is important to recognize, however, that whatever the
advantages of naval power in bygone eras, it is still an important element in the
overall balance of world forces. Any change in the availability of the oceans for
military purposes would inevitably affect some navies more than others, and it
would thereby alter the level of tension known as “world order.” One can say,
of course, that international decision-making bodies should be allowed to decide
what is in the best interests of world order, but such bodies cannot contain the
unpredictable imbalances that they might engender.


166 Readings on International Law

a virtual government for this realm. It would be known as the International
Sea-Bed Authority (ISA). Like many governments, the ISA would be composed
ofa sort of legislative branch (the one-nation-one-vote-Assembly), an executive
branch (the Council, with weighted representation), a judicial branch (the
Sea-Bed Chamber of the International Tribunal for the Law of the Sea), and a
bureaucracy. The ISA would also include a controversial operating arm to be
known as “the Enterprise.”

The primary purpose of the ISA, as envisioned early in the Conference, would
be management of manganese-nodule mining on the deep seabed. The ISA
would grant exploratory and production licenses to miners, collect royalties and
other fees, and make disbursements of revenue to the poorer members of the
world community, in accordance with the common-heritage principle.”

hen President Reagan announced his decision to reject the 1982

Convention, he cited as the reasons for rejection only aspects of the
treaty that dealt with the ISA and deep seabed mining. The significant reasons
for rejection include the following:

* Access to seabed minerals by private mining companies of the United States
and other industrialized countries would be hampered by the treaty’s so-called
“parallel system.” Each private applicant would be required to submit two mine
sites of similar value. The ISA would be allowed to choose one of the two sites
for its “bank” and could allow the private applicant to mine the other site. The
“banked” mine site would be available for mining by the ISA’s operating arm,
the Enterprise, or by a developing country. The U.S. miners and the Reagan.
administration thus viewed the Enterprise, with some justification, as a favored
competitor in the fledgling seabed business,

* To ensure that the Enterprise and any developing-nation miners have the
necessary technology for mining their shares of the seabed, the 1982 Convention
would require that private applicants, who have spent years developing seabed
technology sell their know-how to the ISA on fair terms. This mandatory
transfer-of-technology provision is especially irksome to the Reagan people.

* Another galling requirement in the seabed part of the new treaty concerns
financing the Enterprise’s operations. Obviously, even with a promising mine
site and equipped with seabed technology, the Enterprise will not be able to
conduct mining operations without sufficient financial backing to cover the
enormous costs involved (now estimated to be nearly two billion dollars per mine
site). The new treaty would require that the richer, industrialized nations provide
loans on easy terms, with each lending nation’s obligations proportional to its
share of the UN budget. Thus, the United States’ loan share, at 25 percent, would
be the highest if the United States were to become a party to the treaty.

* The 1982 Convention also places production ceilings on seabed minerals,
another feature the Reagan administration found objectionable. The limits were


Jacobson 169

* A “parallel” system of mining, whereby private-miner applicants would
present two substantially identical mine sites to the International Seabed
Authority. The ISA would keep one for itself, to be mined by its operating arm
“the Enterprise” or by a developing country.

* The Enterprise would be financed by loans, with easy terms, from the
industrialized countries.

* The developed, industrialized countries and their private miners would be
encouraged to transfer the necessary technology to the Enterprise and develop-
ing-State miners.

* Production limits would be set on behalf of those States whose land-based
miners would suffer competition from the production of seabed minerals.

* Periodic review conferences should be held to amend the seabed mining
regime as necessary or appropriate.

1976—(a big year)—over the objections of the United States UNCLOS III
negotiators, the U.S. Congress finally adopts its own 200-mile zone—limited to
fisheries management jurisdiction” This is quickly followed by the proclamation
of a similar Soviet zone and, after a time, by a Japanese 200-mile zone. Many
other nations also follow suit, thereby solidifying the 200-mile zone concept as
a fait accompli of customary international law” and depriving the U.S. UNCLOS
TIL negotiators of an important bargaining chip.

1980—Congress again steps in, this time with the acquiescence of the U.S.
negotiators, and passes the Deep Seabed Hard Mineral Resources Act.” This
law purports to be interim legislation designed to license U.S. miners to mine
the deep seabed and to encourage other mining countries (such as Japan, the
United Kingdom, West Germany, Belgium, the Netherlands, and Italy) to do
the same and to reciprocate, pending adoption of an UNCLOS treaty. Our
negotiators acquiesce because the Conference is again deadlocked and it is felt
that the congressional initiative will get it moving again. It does, and consensus
agreement on virtually all aspects is achieved in the Conference’s 1980 Geneva
session. One more session in early 1982 is all that is needed to wrap up the few
remaining details.

January 1981—The presidential administration of Ronald Reagan comes to
Washington. At the instigation of the new president’s UNCLOS appointees, the
Conference is put on hold while the draft treaty is subjected to a year-long policy
review. When the United States returns to the bargaining table in early 1982, its
demands that substantive parts of the already-negotiated package be reopened
and its perceived unwillingness to bend on hardly any point lead to the adoption
of the new treaty over U.S. objections and its negative vote.

Thus it is clear that U.S. actions have been, in large measure, responsible for
the new shape of the international law of the sea, and for the structure of the
1982 Convention as well. Many of the now-objectionable parts of the new treaty
began as concessions by U.S. negotiators, who, until 1981, were primarily




42 Readings on International Law

the less the immediate life-threatening emergency, the more dubious the
justifiability for American actions, even as a passive receiver of fleeing persons,
If there is any rule of thumb in this area, it would seem to be equivalent to the
rule we all apply when we see our neighbors quarreling or beating each other
and their children; we don’t interfere unless the situation becomes shocking to
the point that we cannot simply stand by and watch. At that point, regardless of
the law the risks seem worth it.

9. Mind Your Own Business. One of the most profound rules of the interna-
tional legal order, so much so that it has a Latin phrase to go with it, res inter alios
acta, is that a quarrel between others is legally of no concern to us. There is no
basis for an international claim unless a legal interest of the claimant is violated;
there is no basis for diplomatic or military action unless that basis can be found
in the law. In international law, phrases like “honest broker” and “friend to all”
have no force. The institutional arrangements for community action rest on the
consent of the States to whom the complaint or military action is addressed. That
consent has been given in the adherence of nearly all States to the Charter of the
United Nations, but that consent extends only to collective action using the
organs of the United Nations and to individual States deriving their authority
from United Nations legal action, as the United States and other States did in
Korea in 1950. Regional organizations, like the Organization of American States,
have a role to play in resolving international disputes and occasionally authorize
military action. The quarantine of Cuba in 1962 was authorized by the Organiza-
tion of American States, thus it was possible indirectly to construe the entire
action as occurring with Cuban consent, Cuba being still a member of the
Organization. There were, and are, doubts as to the legal power of the
Organization to take enforcement action. The Soviet Union is not a member,
yet the quarantine involved interference with Soviet vessels. Moreover, enfor-
cement action is the exclusive prerogative of the Security Council of the United
Nations under the Charter to which all members of the organization of American
States are also parties. But those doubts are subtle, and technical, and were
unnecessary to resolve once it was clear that the United States had a legal position
that assured it of the support of its Latin American neighbors in the action against
Cuba and the Soviet Union in the Western Hemisphere. In that case, the rule
of thumb may have worked better than a more technical and detailed analysis of
the law would have permitted. The rules of thumb thus, that require naval
commanders to mind their own business and limit self-defense actions to true
emergencies, do not operate to prevent collective action instead of individual
action when a quarrel between others threatens general community interests.
They withhold from any single State, including the United States, the legal power
to act as a universal policeman, and strengthen the collective mechanisms that
disperse responsibility for keeping the peace among all the members of the
community and limit the risks of confrontation.


4 Readings on International Law

then all too easy to demonstrate that, despite the claims made for international
law, the world is still in a deplorable state.”*

The “enemies” have three basic criticisms: the lack of a central law-giving or
legislative body, the lack of an independent third-party dispute-settlement
mechanism, and the lack of effective sanctions against lawbreakers.

Let us take a commonplace example to illustrate that these deficiencies need
not hamstring the functioning of the system. Consider the simple act of mailing
aletter from the United States to a foreign address. What makes such a transaction
possible? Take, for example, the case of a letter from Newport, Rhode Island,
addressed to a person in Geneva, Switzerland. It takes some fairly sophisticated
procedures, involving the postal officials of at least two (and perhaps several more)
countries, to get the letter to its destination. One buys a United States stamp
from a U.S. post office and pays for it in U.S. currency. En route to Switzerland
the letter may cross the territory of Canada, Great Britain, and France (and
perhaps Belgium and Ireland as well). The postal authorities of some of these
countries undoubtedly assist in speeding the letter on its way. Two questions
arise:

* What authority or arrangement permits the letter to cross borders of various
countries?

* Do the postal authorities of the other countries receive monetary reimbur-
sement from our postmaster general for their help in delivering the letter from.
the United States? If so, how much?

The answers are provided by international law—here in the form ofa series of
multilateral postal treaties setting up a Universal Postal Union and establishing
detailed regulations governing international postal affairs.? These treaties, to
which some 170 nation-states are parties, were “legislated” in several interna-
tional conferences.

All very well, but what if one nation violates the treaty? There is no court
with compulsory jurisdiction to adjudicate the matter and no sanctioning body
to impose penalties, In fact, however, the Convention is almost universally
observed—not out of fear of sanctions but because it is in the mutual interest of
the parties to observe it. The “law” creates expectations among states as to how
other States will behave. If a State repeatedly or continually fails to fulfill its
obligations, other States will eventually terminate postal relations with it.

To illustrate, take a second commonplace example, from domestic law:
highway traffic rules. In the United States the law requires all vehicles to travel
on the right-hand half of the road under ordinary circumstances. It imposes
criminal penalties on those drivers who violate that law. But is it the fear of
criminal penalties that causes us to stay to the right in the face of oncoming traffic?
Obviously not. It is rather our expectation that approaching drivers will keep
their vehicles to the right (as they also expect of us) and that we will be able to
pass safely. Granted, there is a criminal penalty if one violates the law, but the


McNeill 221

USS. practice had been to use orthodromic lines, arcs of great circles (which best
approximate the shortest distance between points on the surface of the earth).
Orthodromic lines appear straight on a conic projection of the Earth. Conversely,
Soviet practice had been to use the rhumb line, or loxodromic curve, which is
a line of constant compass bearing that appears straight on a mercator projection,
In addition to these technical differences, there was disagreement over the
geographic location of one of the points described in the 1867 Convention that
isa basis of reference for drawing the Convention line. These differences resulted
in assertions by each side that a certain chord-shaped area in the Bering Sea
covering some 18,000 square nautical miles of ocean was on its side of the
Convention line.'®

As a predictable result of these overlaps, the fisheries authorities of both
governments became involved, attempting to enforce their respective regulatory
regimes throughout the entirety of what they conceived to be their own
EEZ—including overlap areas. Indeed, some portions of the Soviet EEZ
extended across the 1867 line, although it had appeared in 1977 that both sides
were intending to use that line as the outer limit of their respective fisheries
enforcement jurisdiction, at least with regard to areas lying within two hundred
nautical miles of both sides’ coasts.'!

Tensions were inevitably created, an example of which is an incident in August
1986. At that time, two Soviet ships threatened and tried to stop the Seattle-based
fishing boats Katie K and Aleutian Mariner in the Bering Sea, in an area of EEZ
overlap some 160 miles west of St. Matthew Island. The two U.S.-flag vessels
fled the area, which contains rich Tanner crab fishing grounds, leaving behind
expensive gear including some 150 crab pots worth perhaps $45,000; they were
followed by the Soviet vessels for a reported one hour and forty minutes before
the chase ended. In response, the 378-foot U.S. Coast Guard cutter Midgett—
armed with two .50 caliber machine guns, a bow-mounted five-inch gun, and
carrying an HH-52 helicopter—was assigned to reenter the disputed area and
escort the Katie K and Aleutian Mariner back to collect their equipment, a task
accomplished without further trouble.'?

Several confrontations of this kind have occurred in recent years and
threatened to become serious irritants in the relationship between the U.S. and
U.S.S.R. Now, however, both sides have agreed on a fundamentally logical basis
for fishing rights and responsibilities in the area. This represents a welcome
advance, and reinforces the progress reflected in the recent Governing Interna-
tional Fishery Agreement signed by the two governments on 22 June 1988 and
approved by Act of Congress later the same year."

Separate issues are generated by the existence of an area of high seas in the
central Bering Sea that is literally surrounded by the EEZs of the United States
and Soviet Union but is included in neither, and is known as the “Doughnut
Hole.” This area, in the heart of the world’s most productive fishing grounds,


Chapter 3

Rules of Thumb for Gut Decisions:
International Law in Emergencies*

Alfred P. Rubin

ike my personal library there is a rather tattered and stained, leather-bound book
published in 1741 by the British Admiralty and issued to Navy commanders.
Itis titled, Extracts from the Several Treaties Subsisting Between Great Britain and Other
Kingdoms and States of such Articles and Clauses as Relate to the Duty and Conduct of
the Commanders of the King of Great Britain’s Ships of War. It is 264 pages long and
contains in elegant print the pertinent articles ofall the treaties with France, Spain,
the Netherlands, Belgium (then called the Austrian Netherlands), Portugal,
Russia, Sweden, Denmark, Savoy (now expanded to a united Italy), Turkey,
Morocco, Algiers, Tripoli (now called Libya), and Tunis. The oldest is with the
Austrian Netherlands, and dates to 1495. The compilation is current as of 1741.
Some of the articles deal with the rights of merchants as neutrals when the other
treaty party is exercising belligerent rights, such as blockade, against a third State,
some with the incidents of peaceful seaborne trade, some with belligerent rights
as between the treaty partners themselves, such as provisions dealing with
contraband and prize court proceedings. Such a compilation was not only useful
but a practical necessity in 1741 if Great Britain were to give her navy the job
of protecting British commerce at sea.

It would be both undesirable and impossible to compose an equivalent
compilation for our naval commanders today. It is impossible to furnish our naval
commanders with the compilation of all the treaty articles that might pertain to
their duties because of the growth of the international community and the
proliferation of treaties and executive agreements pertinent to seaborne com-
merce and the laws of war, and other matters of possible immediate concern to
naval commanders, like individuals’ rights to political asylum. To serve a function
equivalent to the 1741 compilation a current volume would have to be huge,
cross-indexed, and accompanied by interpretive legal memoranda and
philosophical analyses of the impact of treaty commitments on third parties, the
implication of inconsistent obligations owed to the same party, different parties,
international organizations, and parties with reservations or qualifying interpreta-
tions to multilateral documents. And it would quickly be realized by the naval

* Reprinted from the Naval War College Review March-April 1982.


Aceves 255

restrictions be imposed when necessary for other purposes, e.g., to protect
national security?

Following the February 1988 incident, the Soviet Union expressed a strong
desire to reach some form of accommodation with the United States on the issue
of innocent passage in Soviet territorial waters. Similarly, Secretary Carlucci
suggested that the U.S. and the Soviet Union should try to set better guidelines
for reducing dangerous incidents such as the confrontations in the Black Sea.
According to Secretary Carlucci, “You could lay out some principles such as:
you don’t use violence, you don’t ram ships, you don’t fly too close to airplanes.
We need to get one another’s perspective . . . [and] find a way to deal with
dangerous military activities and hear about their [Soviet] doctrine.” As a result,
the United States and Soviet Union began a series of bilateral consultations in an
attempt to resolve the issues raised by the bumping incident. The negotiations
involved two distinct matters: the avoidance of dangerous military activities, and
the right of innocent passage.

On 11 July 1988, Marshal Sergei F. Akhromeyev, then chief of the Soviet
General Staff, and Admiral Crowe issued a joint statement in Washington
indicating their intent to pursue policies and actions that would assist their
respective armed forces in avoiding dangerous military activities. They also
announced plans to set up a joint military-to-military working group that would
consider ways to avoid such unintended confrontations. It was stated that there
was “no intention on their part to replace or derogate from existing agreements
such as the 1972 Agreement on the Prevention of Incidents On and Over the
High Seas or the 1947 Huebner-Malinin Agreement on military liaison mis-
sions.”

On 1 June 1989, the Agreement on the Prevention of Dangerous Military
Activities was signed in Moscow by Admiral Crowe and Colonel General
Mikhail Moiseyev, newly appointed chief of the General Staff. According to the
Agreement, the parties were “guided by generally recognized principles and rules
of international law.”© The document noted that both sides were convinced of
the need to prevent dangerous military activities and thereby reduce the pos-
sibility of incidents arising between their armed forces.

The Agreement, which took effect on 1 January 1990, identified the following
activities of personnel and equipment of armed forces, when operating in
proximity to the personnel and equipment of the armed forces of the other party
during peacetime, as dangerous:

« Entry by personnel and equipment of the armed forces of one party into
the national territory of the other owing to circumstances brought about by force
majeure or as a result of unintentional actions by such personnel.

* Using a laser in such a manner that its radiation could cause harm to
personnel or damage to equipment of the armed forces of the other party.


488 Readings on International Law

will have a different view of the matter. The service manuals are not up to date
(albeit the Navy and Army are updating their manuals, by completely rewriting
them).

In any event, at least in limited wars, the ROE will constrain military
operations to less than the full range of legally permissible options.

More fundamentally, if we are to practice how we are going to fight in combat
it seems less than sensible not to know in peacetime what the rules are going to
be. Others may suggest in private that WROE is too hard to write, perhaps
because of their own uncertainty of the future, or perhaps because of an
uncertainty regarding what would be legally permissible.

Nevertheless, the basic principles for those rules are to be found in the law of
armed conflict and relevant military doctrine. If not, then we should be
developing new doctrine and fresh interpretations of the law to meet changing
circumstances, e.g., doctrine and laws relating to the employment of missiles
against targets located beyond visual range or over the horizon.

Summary

ROE are one of the main instruments used to interpret policy and ensure that
armed force is used to achieve and not to defeat the desired political goal.

In peacetime, ROE reflect significant legal, political, diplomatic, and military
restrictions on the employment of military forces.

In wartime, ROE permit a wider range of uses of military force, but still are
used to ensure that force is employed toward the achievement of desired political
goals.

Every commanding officer retains the right to use force to protect his
command in self-defense. He also has the obligation to do so.

Authority to employ certain weapons is generally reserved to the NCA (e.g.,
nuclear and chemical weapons, riot control agents and herbicides).

The new maritime ROE have mechanisms for changing—including relax-
ing—specific aspects of the ROE to provide precise responses to changing
threats.”° There should be developed similar mechanisms for the other peacetime
ROE. All should be included in exercise play whenever possible. Appropriate
modifications should be approved, in advance, for use if specified contingencies
occur.

Captain Roach was the Head of the Law of Armed Conflict Branch of the International Law
Division in the Office of the Judge Advocate General of the Navy when this article was first
published.


Robertson 303

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,

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 ofa prize or establishment of a prize court;

e. Use as a base of operations.28

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. Innocent passage” 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 innocent passage 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 damage”!° 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 passage 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
passage through neutral international straits and archipelagic sea lanes passage


INDEX

Abele, Daniel, 232
Abu Nidal, 352
Achille Lauro case, 338-339, 456
Adams, President John, 356
“Adverse Possession” of the Maritime Common, 210
Aerial bombardment, law of armed conflict regarding, 468-469, 470-471
Aerial evacuation, 473-474
Afghanistan
Soviet invasion of, 323, 325
Soviet use of biological/biochemical weapons in, 505-506, 508
African States
condemnation of Israeli action at Entebbe, 396
Organization of African Unity, 396
Agreement Between the United States of America and the Union of Soviet Socialist Republics on
the Maritime Boundary, 227-228
Agreement on the Prevention of Dangerous Military Activities (1989), 255-256
‘Agreement on the Prevention of Incidents On and Over the High Seas (1972), 255
Air Force, U.S.
distinguishing legal and illegal deception, 500
Posse Comitatus prohibitions, 414
Akhromeyev, Soviet Marshal Sergei F., 255,
Aleutian Mariner, 221
Alexander I of Yugoslavia, 402
Alexander II, Czar, 219
Alexander VI, Pope, 265
Algeria, Secret Army Organization, 429
American Declaration on the Rights and Duties of Man, 372
American Indian Movement (AIM), 425
American Law Institute
‘Third Restatement of the Foreign Relations Law of the United States, 263
Amin, Afghanistan President Hafizullah, 323
Amin, Ugandan President Idi, 396
‘Anglo-Nonwegian Fisheries case, 271
‘Anthrax as biological weapon, 504
Arab League, 353
Arab States condemnation of Israeli action at Entebbe, 396
Arabian, 121
Arafat, Yassir, 352
Aramco, 88
Arbatov, Georgi (Director of the Institute of the U.S.A. and Canada), 249
‘Archipelagic states
delimitation of internal waters, 292
sovereignty, 292
Archipelagic waters, 68, 73
archipelagic baselines, 201, 273
archipelagic sea lanes passage, 123, 201, 273, 292, 294-296
definition of, 201
emplacement/employment of weapons, 299-300
freedom of navigation, 201
innocent passage, 202
law of neutrality in, 292-296
LOS Convention, article 47, 292
mine warfare in, 301


Rubin 37

2. Minimal Force. It is fundamental to the international law of war, as well as
to wise management, that unnecessary suffering and destruction is improper.
Whether a use of force to “teach a lesson” is justifiable as “reprisal” or on some
other basis must rest on particulars. It is a potentially difficult legal question to
which the answer normally would be no. The international law of self-defense,
which was definitively formulated by Daniel Webster in diplomatic correspon-
dence with Lord Ashburton, the British Minister in Washington, in 1842*
justifies only the minimum force when the necessity is “instant, overwhelming,
and leaving no choice of means, and no moment for deliberation.”* International
law, like the law of many states in the United States, requires a threatened party
to retreat before the threat as long as retreat is safe before using force in
self-defense. This is not to say that there are no circumstances in which a naval
commander may use force beyond the minimum necessary to safeguard his
command, only that as a rule of thumb he should not; if he does he is likely to
involve the United States in serious complications, an escalating use of force by
others, and will find his superiors, to their dismay, forced to apologize for action
he thought was justifiable.

3. Effectiveness. In the long run, legal relationships flow from the facts, not
from the technical labels we frequently use to disguise unpleasant reality. Thus,
if a rebel group that has control of a foreign vessel is labeled a “pirate” or
“terrorist” group by the recognized government against which it is fighting, and
the United States does not recognize the legitimacy of the rebel government or
its legal capacity to commission naval vessels, to the degree the labels represent
a political ideal of the defending government or the United States and not the
facts, it is the labels that will ultimately be changed. An American naval
commander capturing a Chinese Communist gunboat in 1970, when the United
States recognized the Chinese Nationalist Government in Taiwan as the sole
Government of China, and the Government called the Peking authorities mere
bandits, would create legal and political complications that might help clarify the
law, butat the cost of his reputation for common sense. The reality of Communist
control of the mainland of China actually determined American relations with
Peking as early as 1949, and we accorded Chinese Communist “volunteers” the
privileges of legal belligerents in Korea from the first days of their entry into that
conflict in 1951, despite maintaining for political reasons a set of legal labels that
made that status inconsistent with our public legal position. This is not to say
that there are no legal effects to unreal labels, only that as a rule of thumb, in the
absence of express guidance from above, naval commanders should rest their
evaluations on reality itself, not on subtle and complex political and legal
considerations that may require the formal use of deceptive legal labels fora time.

4, Legal labels and “Autointerpretation.” Legal words are almost always decep-
tive even to lawyers. President Ford is a lawyer, and he called the Kampuchean
naval force that seized the Mayagiiez “pirates.” The State Department quickly


Farrell 405

To do unto others what is comprised in terrorism is recognized everywhere as
being bad—unless, like war, it can be justified. Terrorism, so defined, is not
something that in all conscience can be allowed ofas being right and proper, unless
there is a massive justification for it-—in which case it is not terrorism!"®

Here we encounter the fine line between terror and terrorism and the attempts
to legalize or justify the former while proscribing the latter. Terror practiced by
a government in office appears as law enforcement and is directed against the
opposition. Terrorism, on the other hand, implies open defiance of law and is
the means whereby an opposition aims to demoralize government authority.
While the terrorist group may make no pretense at legality, legitimate govern-
ment must at least formally adhere (or give the appearance of adhering) to the
law. In the absence of directly supporting legislation, governmental terror is made
to appear justified by declaring a state of emergency and the issuing of decrees.!
From a legal point of view “there is nothing strange or incongruous about the
dualism with which the phenomenon of terrorism is viewed.”

Another example worth noting relates to an identical set of physical facts that
can be criminal or noncriminal according to its association with “a specific mental
element.” Murder and justifiable homicide are good examples. What is good or
evil about the matter is not dependent upon the physical aspects of the case itself
but rather on the way it is perceived. “The true struggle over definition in the
area of terrorism is fundamentally between those who claim an exception at law
for certain manifestly harmful conduct and those who will not admit it.”*! When
viewed this way, in terms of individual crimes, these acts, in and of themselves,
are not terrorism. Terrorism is more the why of an act than the what.

What about this legal definition of terrorism?

Terrorism involves the intentional use of violence or the threat of violence by the
precipitator(s) against an instrumental target in order to communicate to a primary
target a threat of future violence. The object is to use intense fear or anxiety to
coerce the primary target to behavior or to mold its attitudes in connection with
demanded power (political) outcome. It should be noted that in a specific context
the instrumental and primary targets could well be the same person or group... .
The crucial factor is that the task of deciding between the permissible and
impermissible labels of a particular coercive process should be guided by com-
munity expectations and all relevant policies and features of context.’

Terrorism, like beauty, remains in the eye of the beholder.”*

These efforts to reach an operational definition of terrorism are put forth not
as an exercise in semantics but to illustrate the difficulty that surrounds this
particular term. Further, they are an attempt to arrive at a readily workable
definition that is more than just one writer’s view of the phenomenon. Studies
of terrorism must try, when possible, to develop more precise language.


Aceves 247

received from the Joint Chiefs of Staff or the President. Since 1979, the U.S.
military has operationally protested the objectionable claims of over thirty-five
States at the rate of approximately thirty or forty per year.'?

The Black Sea Challenges

Though the FON program was implemented worldwide, confrontations with
the Soviet Union produced some of the most contentious incidents. According
to the Pentagon, the United States has conducted maritime operations in the
Black Sea since 1960, and by the 1980s American warships were passing through
the Turkish straits from the Mediterranean into the Black Sea two or three times
a year to “show the flag” and to exercise the right of innocent passage in the
territorial seas of littoral states.'>

The presence of U.S. warships in the Black Sea served three purposes. First,
the United States sent warships through the Turkish straits to uphold its rights
under the 1936 Montreux Convention.'* According to a U.S. government
official, “The Dardanelles and the Bosporus form an international waterway.
Passage is covered by the 1936 Montreux Convention. If you don’t periodically
reaffirm your rights you find that they're hard to revive.”!® Second, the US.
conducted Freedom of Navigation exercises in the Black Sea to affirm the right
of innocent passage in Soviet territorial waters. Third, naval operations in the
Black Sea demonstrated that waters outside territorial seas are international
waters, where every State enjoys the high-seas freedoms of navigation and
overflight.

The Soviet Union considered U.S. operations in the Black Sea unacceptable.
Thus, the Soviets routinely dispatched their naval vessels and aircraft to monitor
USS. warships there. Specifically, the Soviets criticized U.S. operations on three
grounds. First, the Soviets claimed that the American maneuvers violated the
Montreux Convention because the caliber of the U.S. antisubmarine rocket
launcher (Asroc) exceeded the 203mm Convention limit.’* The United States
responded that Asroc was not a gun and was therefore not covered by the
Convention.

Second, the Soviets criticized the maneuvers as both provocative and
dangerous and asserted that there was no justification for the maintenance by the
United States of a presence in the Black Sea.” In 1968, Izvestiya commentator
A. Sharifov noted that “the provocative visit by American ships to the Black Sea
is aimed at troubling the clear waters of the good neighbor relations of the Black
Sea countries.”!? In the 1980s, the Soviets criticized Freedom of Navigation
exercises in the Black Sea as an attempt to undermine improving Soviet-
American relations.

Third, the Soviet Union protested U.S. operations in Soviet territorial waters
because they violated Soviet maritime regulation. Since World War II the Soviet


66 Readings on International Law

have three competing options: one, put forward mainly by the Arab countries,
would limit coastal States’ jurisdiction to the same boundary as the exclusive
economic zone—that is, 200 miles. A second, proposed by the Soviet Union,
would establish a fixed mileage limitation of 300 miles, or perhaps more, from
the baseline near the short, but in any case, some definite and relatively easy
ascertainable limit. The third approach is one advocated by the broad-margin
States, mainly Great Britain, Ireland, Norway, Canada, Australia, New Zealand,
India, and Argentina—the so-called Irish formula. Under the Irish formula there
would be applied a sediment test—that is, a measurement of the depth of the
sediment overlying the rock stratum beneath. The Irish formula, believe it or
not, provides that the limit of a coastal States’ jurisdiction is the point at which
the depth of the sediment is 1 percent of the distance from the foot of the
continental slope! And on the determination of this point, of course, turns
jurisdiction over many billions of dollars worth of hydrocarbons,

The fourth of these four nonseabed mining negotiating groups is concerned
with dispute settlement with respect to the boundaries of the exclusive economic
zone and the Continental Shelf between opposite and adjacent States. Here the
main competing doctrines are those of equidistance and the recognition of
so-called “equitable principles.” For every country that benefits from the
application of the principle of equidistance, there is an equal and opposite country
that would benefit from equitable principles. For example, equidistance applied
without qualification would give Canada quite a lot of Georges Bank, although
Georges Bank lies east and somewhat south of Cape Cod. It came as a great
surprise to the fishermen of New Bedford that grounds they have traditionally
fished upon might turn out to belong in considerable part to Canada. So at least
with respect to that dispute, the United states is an advocate of equitable
principles.

There were, as of early 1978, two other major concerns not embraced within
these four negotiating groups in which the United states has a particular interest:
one is in protection against marine pollution, and we were able to gain some
significant improvements in those provisions of the text in the two negotiating
sessions in 1978 (with the help in part of the Amoco Cadiz disaster, which once
again illustrates the proposition that it’s an ill wind that doesn’t blow some good).
The other major outstanding concern for the United States not embraced in any
present negotiating group, but falling within the jurisdiction of Committee Three
of the Conference, is the text on marine scientific research. There we are trying
to offset some of the negative effects of a text that establishes a consent regime
for the conduct of scientific research within the 200-mile zone and the coastal
State’s jurisdiction over the Continental Shelf. We have, in the meanwhile,
worked hard for some improvement of the language dealing with the protection
of marine mammals.


Robertson 289

of the continental margin or, for coastal States with margins less than 200 miles,
to the outer boundary of the exclusive economic zone.’ 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 2500-meter isobath.

On the continental shelf the coastal State exercises “sovereign rights for the
purpose of exploring it and exploiting its natural resources.”"“! 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.'4” 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 “[tJhe 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.”"*? 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 navigation in the vicinity of artificial
islands, installations, structures and safety zones,”!4+ Thus, the waters above the
continental shelf are governed by the 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 dis-
cussion 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.'*> Thus, the only restriction on the law


Hall 493

and to facilitate the restoration of peace, international law has placed limits on
behavior during warfare.

Deception is not illegal per se,’ but rather is permissible so long as it does not
violate some rule or principle of international law. NWP 9, The Commander's
Handbook on the Law of Naval Operations, provides the commander with a basic
introduction to this concept: “The law of armed conflict permits deceiving the
enemy through stratagems and ruses of war intended to mislead him, deter him
from taking action, or to induce him to act recklessly, provided the ruses do not
violate rules of international law applicable to armed conflict.”® Obviously, a
commander, especially one who operates without ready access to a judge
advocate, must be familiar with the law of naval warfare in order to discern
whether or not a proposed deception violates any principles of the law of armed

conflict.
A Proposed Method for Analysis

A commander intending to use a novel form of deception must be able to
determine whether his proposed action is legal. In order to do this, he must be
familiar with various elements of the law pertaining to deception. Ata minimum,
these elements include the following:

¢ The requirement for good faith between combatants;

¢ The definition of perfidy;

* The reason perfidy is prohibited;

¢ The list of permitted deceptions under NWP 9;

* The list of prohibited deceptions under NWP 9; and

* Historical applications of perfidy and ruse.

The flowchart provides a method by which the commander, using the
elements described above, can analyze whether his proposed deception is lawful.
The commander starts with the assumption that the deception is lawful (based
on paragraph 12.1 of NWP 9 cited above). Next, he must ascertain whether it
is on the NWP 9 list of prohibited deceptions. Ifit is, then the commander must
not take the action. If it is not on the prohibited list, the commander must then
determine whether it is on the list of permitted deceptions or if on this list it has
a logically related counterpart. Even if the proposed deception is on the list of
permitted deceptions, it must still be examined for potential perfidy since, as was
noted earlier, even permitted deceptions can, through a slight change in cir-
cumstances or events, become perfidy. Alternatively, if the proposed deception
is not on the list of permitted ruses and does not have a logically related
counterpart, the commander must examine it for potential perfidy. Thus, the
mere presence of a proposed deception on the list of permissible ruses does not
guarantee the absence of perfidy in a particular situation. Only after determining


302 Readings on International Law

vil
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 forms of jurisdiction, has created
problems of adaptation of the traditional rules of armed 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 German) 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 (i.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
peacetime have the same legal characteristics (i.e., archipelagic waters). As has
been suggested by the foregoing analysis, however, the geographic and opera-
tional 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
tules. 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. Accord-
ingly, 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.”° With this caveat in mind, I make the following tentative recommenda-
tions 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,”
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


128 Readings on International Law

The recent development of navigational rules for the Straits of Malacca
illustrates the resolution of conflicting interests about the use of international
straits through international consultations. The procedures followed by the
coastal States in this case could be applied elsewhere and would be codified in
the Draft LOS Convention under consideration at UNCLOS III. Such interna-
tional procedures, whether conducted on the basis of traditional law of the sea
or specifically authorized in a general LOS convention, will not, however, likely
prove fully satisfactory to coastal States in achieving effective substantive regula-
tion. Extensive local regulation of maritime activities in international straits
would necessarily interfere with important interests of outside users in commer-
cial transportation and naval operations. The Malacca Straits case also illustrates,
however, the importance of local environmental and security concerns to coastal
States and their potential effect on outside users. Continued progress should be
made on such regional issues to prevent further conflict between coastal States
and major users and to achieve maximum maritime security in such areas,

Daniel Finn was a research fellow in the Marine Policy Program of the Woods Hole
Oceanographic Institution at the time this article was first published.

Notes

1. LEIFER, MALACCA, SINGAPORE, AND INDONESIA 6-31 (1978).

2. FINN, OIL POLLUTION FROM TANKERS IN THE STRAITS OF MALACCA: A POLICY AND LEGAL
ANALYSIS 5-11 (East West Center, 1979).

3, Supra n. 1 at 105-127.

4. Convention on the Territorial Sea and the Contiguous Zone, done 29 April 1958, entered into force
10 September 1964, 15 U.S.T. 1606, T.LA.S. 5639.

5. The results of UNCLOS III to date may be found in its Draft Convention on the Law of the Sea
(Informal Text) (hereinafter “Draft LOS Convention”), U.N. Doc. A/CONF.62/WP.10/Rev. 3, 27 August
1980.

6. Id,, Arts. 34-45. Richardson, Power, Mobility and the Law of the Sea, Foreign Affairs 902 (Spring 1980)
(emphasizing significance of the results of UNCLOS III for naval and other maritime activities).

7. The fill text of the joint declaration is reprinted in LEIFER, supra at 204; the operative paragraphs are
also quoted in FINN, supra at 76-77.

8. Convention on the Territorial Sea and the Contiguous Zone, Arts. 14-17.

9. The evolution of tanker size and resulting operational characteristics relevant to Southeast Asian waters
are discussed in length in FINN, supra at 124-128. A detailed summary of tanker casualties and loss trends in
the region is given in supra n. 2 2t 11-18.

10. Geographical data on the marine environment in the Straits area, and detailed information on bottom
conditions, is given in supra n. 2 at 20-30.

11. Hd at 5.

12. 1d, at 5, 6.

13, Id, at 11.

14. The hydrographic characteristics of the Straits are discussed in id. at 20-30.

15. Casualty data and trends are presented in id,, at 11, 18.

16. Id, at 77, 84,

17. Supra n. 1 at 25-50; supra n. 2 at 76-99.

18. Supra n. 1 at 105-107; supra n. 2 at 77.

19. Supra n. 1 at 14-27.

20. Indonesia's 1957 Cabinet declaration, and Act No. 4 of 1960, to this effect, are reprinted in supra n.
1 at 201-203.


Finn 121

and naval vessels could have been affected, inasmuch as at the time of the joint
declaration coastal states had begun to question the “innocence” of operations
by such vessels and to claim some jurisdiction over them. This was true especially
for oil tankers, in the aftermath of several serious tanker casualties that polluted
coastal waters. This article will examine the background and significance of the
joint declaration and its resolution to date through international legal and political
means, The history of regulation of oil tanker traffic in the Straits of Malacca
provides an excellent example of the significance of marine environmental
concerns and the role of international law and organization in safeguarding
maritime security.

The Background of Jurisdictional Conflict Over Navigation in the Straits of
Malacca. The efforts of the three coastal States to obtain greater control over the
Straits, through their joint declaration and other actions, was based on a complex
of factors including the pollution and safety risks associated with large tanker
traffic, as well as regional security concerns. But these factors affected each of the
three States somewhat differently, and the formulation of an integrated regional
response to the environmental and security issues was impeded by the divergence
of local interests.

As the size and number of tankers to serve the needs of Japan and other East
Asian countries rapidly increased in the period prior to 1973, their navigation
through the Straits presented increasingly obvious safety problems.” In 1967
Tokyo Maru, a 151,288 deadweight ton (dwt) vessel, scraped bottom and released
about 1,000 tons (T) of crude oil. A similar incident occurred to Idemitsu Maru
in 1968, and in 1971 two tankers over 200,000 dwt, Arabian and Eugenie Niarchos,
ran aground, Several more serious or well-known accidents, such as that of Showa
Maru (1975), happened only later, when coastal State efforts were already focused
on controlling oil tanker traffic.

A combination of factors account for the maritime hazards of the Straits.’
Traffic in the Straits is dense and is composed of vessels of various classes, speeds,
and destinations. This causes considerable crossing and overtaking in the main
shipping lanes. The shipping lanes themselves become very narrow, especially at
critically crowded points and in areas in which surrounding depths constrain the
maneuvering of larger vessels. In the past, charts were deficient and aids to
navigation insufficient or incompletely maintained; even contemporary charts
cannot account fully for changing bottom conditions resulting from sand waves,
however. The Straits are also subject to significant tides and currents, and rain
squalls often reduce visibility.

Abouta fifth ofall the oil shipped across national borders in the world is moved
by tanker through Southeast Asia. It has been calculated that in order to supply

Japanese needs alone, 1,627 tanker trips with a mean capacity of 150,000 dwt
would be required, or over 3,200 trips both ways. Assuming this capacity were


xvii

earlier headings. Two of these deal with treaty relationships—the U.S.-Japan
alliance and the impact of the INF Treaty on European security.

A concluding note may be in order. In writing the introduction to volume
61 of the Blue Book series in March, 1979, one of us (Professor Moore) lamented
that “international law frequently is not significantly considered in key national
security decision,” noting that “[t]here continues to be no international legal
expert as such on the NSC staff... .” He had made this point writing earlier in
the January 1973 issue of Foreign Affairs. We are pleased to note that consider-
able progress has been made toward assuring that international and other legal
issues will be considered at the highest levels of the policy process by the
establishment in 1982 of a Legal Adviser on the National Security Council staff.

If the recent past is any guide, the years ahead will produce still further
advances and developments in international law; and many of these will be of
great importance to the Naval War College and the military officer. Fora period
of nearly half-a-century, the Naval War College Review has made an invaluable
contribution to the development and understanding of international law that has
left all of us in its debt. We are honored to be able to bring some of these articles
to a wider audience, and we look forward to a continuation of this tradition of
excellence in the years ahead.

John Norton Moore Robert F. Turner

Charlottesville, Virginia

4 September 1995

Notes

1, Foran excellent hisotry of the War College, sce JOHN B. HATTENDORF, B. MITCHELL SIMPSON,
Ml, & JOHN R. WADLEIGH, SAILORS AND SCHOLARS: THE CENTENNIAL HISTORY OF THE U.S.
NAVAL WAR COLLEGE (1984).

2. Md.


Index

“Cannon-shot mule,” 266
Cape Verde, LOS Convention statements, 288
Carlucei, Secretary of Defense Frank C., 252-254, 255
Caroline case, 32, 332, 336, 459
Carter administration
announcement of U.S. withdrawal from South Korea, 555
Freedom of Navigation program, 199
USS.-Japan relations, 555-556
Zbigniew Brzezinski statement on Japanese rearmament, 560
Carter, President Jimmy, 381, 422, 555,
‘Castro, Prime Minister Fidel, 381
Central Intelligence Agency
Soviet reaction to Black Sea FON program, 252
Chemical weapons
availability, 429-430, 504
case of manufacture, 429-430, 512
Geneva Convention of 1925 prohibiting use, 514
nerve agents, 429, 504
Chemical/biological weapons, 427-431
and nules of engagement (ROE), 481
availability, 429-430
botulinum toxin, 430
dispersal, 430
case of manufacture, 429-430
nerve agents, 429, 504
poisonous-gas, 468, 471, 472
sarin nerve agent, 429-430
Soviet use in Southeast Asia, 428
terrorist use, 427-431, 502, 520
Chernavin, Soviet Fleet Admiral V. N., 249
Chile, continental shelf claims, 161
China, People’s Republic of
biological/biochemical weapons policy, 512
midline delineation of EEZ in Yellow Sea, 202
military warming zone, 206
reaction to North Korean “military boundary zone”, 207, 215
relations with Japan, 555, 556-559
Sino-Argentine fisheries conflict, 183, 184
Sino-Philippine maritime dispute, 184
Soviet concerns about Sino-Japanese relations, 558
Chukchi Sea, 219, 223, 226
Churchill, Sir Winston, 345
Civil disturbances. See Domestic terrorism.
Civil War, U.S., 345
Civil wars, 468. See also Liberation movements, national.
Clancy, Tom, 491, 499
Clingan, Thomas, 147, 154
Coast Guard, U.S.
ambiguity of Posse Comitatus prohibitions regarding, 414
Cutter Midgett, 221
Coast guards, responding to offhore maritime terrorism, 443-444, 446
Coastal state
jurisdiction, 438-440, 442-444, 484. See also Maritime zone delimitations,
artificial islands, 438, 442
continental shelf, outer, 439-440, 442, 484
exclusive economic zone (EEZ), 438-439, 442, 443
extension of, 64
in situ, 443-444

587


266 Readings on International Law

and the practice of requiring the striking of the flag to British men-of-war in
those seas.

England continued to assert 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 ofa territorial
sea”! 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.”

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.” It was reinforced by
the practice of vessels rendering a salute when they came within the range of the
artillery ofa foreign fort.”* At the beginning of the eighteenth century, the Dutch
jurist Cornelius van Bynkershoek “transferred in theory to all parts ofa coast this
decisive property of compulsion and dominion which, strictly speaking, only
existed where forts or batteries were placed.””> 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


384 Readings on International Law

2, Lord, Rome, European Community 40:3 (September-October 1978).

3. See United States, Central Intelligence Agency, Intemational Terorism in 1977 (Washington: 1978),
and the comments of John Dillin, Terorist Activity Ebbsfor Now, The Christian Science Monitor 1:1 (15
September 1978), who notes that “international terrorism seems to move in cycles, and the current period
appears to be a ‘down’ cycle.”

4. See Newsweek, 27 March 1978, at 65-66; id., 24 April 1978 at 54; id., 1 May 1978, at 34-35; id,, 8
May 1978, at 44; and id., 29 May 1978, at 62.

5. Id., 29 March 1978, at 24; id. 27 March 1978, at 32.

6. Iid., 4 September 1978, at 30-31.

7. Id., 18 September 1978, at 45-47.

8. Miller, Negotiations for Hostages: Implications from the Police Experience, 1 Terrorism 125, 132 (1978).

9. United States, Central Intelligence Agency, Intemational and Transnational Terorism: Diagnosis and
Prognosis (Washington: 1976); U.S. News & World Report, 17 March 1975, p. 26.

10. See, for example, Mallison and Mallison, The Concept of Public Purpose Terror in International Law:
Doctrines and Sanctions to Reduce the Destruction of Human and Material Values, 18 Howard Law Journal, 12 (1973);
BELL, ON REVOLT: THE STRATEGIES OF NATIONAL LIBERATION 3-18, 179-191 (1976); SINGH &
KO-WANG MEI, THEORY AND PRACTICE OF MODERN GUERRILLA WARFARE 42-44 (1971).

11, SCHWARZENBERGER, INTERNATIONAL LAW AND ORDER 219-234 (1971); BASSIOUNI &
NANDA, A TREATISE ON INTERNATIONAL CRIMINAL LAW 490-500 (1973); Friedlander, Terrorism and
Political Violence: Do the Ends Justify the Means? 24 Chitty’s Law Journal 240 (1976); WALZER, JUST AND
UNJUST WARS: A MORAL ARGUMENT WITH HISTORICAL ILLUSTRATIONS 176-206 (1977), centers
on moral issues. These, he claims, are questions “which the law gets at only imperfectly.” Id, at 183.

12. WILKINSON, TERRORISM AND THE LIBERAL STATE 173-174 (1977), takes issue with those writers
who distinguish between transnational and international terrorism. His concern is well taken, but for purposes
of this study, transnational will refer to nonpolitical, nonstate actors. Cf. BELL, TRANSNATIONAL TERROR,
4, 6-8 (1975).

13. The variety of definitions is almost as great as the variety of terrorist acts themselves. Cf. the following:
National Advisory Committee on Criminal Justice Standards and Goals, Report of the Task Force on Disorders and
Terrorism 3 (1976), hereinafter cited as Terrorism Task Force [1975]; Lord Gardiner, et. al., Report of a Committee
to Consider, in the Context of Civil Liberties and Human Rights, Measures to Deal with Terrorism in Norther Ireland
25 (Cmnd. 5847); CARLTON & SCHAERF, INTERNATIONAL TERRORISM AND WORLD SECURITY
50-58 (1975); ALEXANDER, TERRORISM: INTERDISCIPLINARY PERSPECTIVES 18-29 (1977);
LIVINGSTON, INTERNATIONAL TERRORISM IN THE CONTEMPORARY WORLD 1-3 (1978). It is
questionable as to whether the Guiana massacre was legally an act of terrorism, but the assassination of
Congressman Leo Ryan certainly falls into the category of intemnationally prohibited acts. For a descriptive
analysis of the events in Guiana, see especially The Times (London), 26 November 1978, p. 17:1; The Observer
(London), 26 November 1978, p. 5:1, Newsweek, 4 December 1978, pp. 38-60.

14. Friedlander, Banishing Fear ftom the Skies: A Statutory Proposal, 16 Dug, L. Rev. 283 (1978);
MCWHINNEY, THE ILLEGAL DIVERSION OF AIRCRAFT AND INTERNATIONAL LAW (1975);
EMANUELLI, LES MOYENS DE PREVENTION ET DE SANCTION EN CAS D’ACTION ILLICITE CONTRE
L’AVIATION CIVILE INTERNATIONALE (1974).

15. ALEXANDER, supra n. 13 at 131-132.

16, ADLER & MUELLER, POLITICS, CRIME AND THE INTERNATIONAL SCENE: AN INTER-
AMERICAN FOCUS 91-95 (1972); SCHAFER, THE POLITICAL CRIMINAL: THE PROBLEM OF MORALITY
AND CRIME 1-55 (1974); BASSIOUNI, INTERNATIONAL EXTRADITION AND WORLD PUBLIC ORDER
375-385 (1974); SINHA, ASYLUM AND INTERNATIONAL LAW 173-188 (1971).

17. BASSIOUNI & NANDA, supra n, 11 at 314-316; Friedlander, The Origins of Intemational Terrorism: A
Micro Legal-Historical Perspective, 6 Israel Year Book on Human Rights 49, 54-55 (1976); LA FOREST,
EXTRADITION TO AND FROM CANADA 61-65 (2nd ed. 197).

18, Deere, Political Offenses in the Law and Practice of Extradition, 27 Am. J. Int'l L. 247-250-251 (1933);
SINHA, supra n. 16 at 20.

19. Friedlander, supra n. 17 at 55-56.

20. Rogers, A World Free of Violence, 425-429. Department of State Bulletin (16 October 1972).

21. Deere, supra n, 18 at 252-254; BASSIOUNI & NANDA, supra n. 11 at 316.

22. Reprinted in BASSIOUNI & NANDA, supra n. 11 at 409-416.

23. Convention to Prevent and Punish the Acts of Terrorism Taking the Form of Crimes Against Persons
and Related Extortion that are of International Significance, O.A.S. Doc. AC/Doc. 88, rev. 1 corr. 1 of 2
February 1971; OAS/Ser. A/17; U.N. Doc. A/C.6/418, Annex V (2 November 1972).

24, A.G. Res 3166 (XVII), 28 U.N. GAOR, U.N. Doc. A/RES/3166 (1973), reprinted in 68 Am. J.
Int'l L. 383 (1974). See especially, BLOOMFIELD & FITZGERALD, CRIMES AGAINST INTERNATIONALLY
PROTECTED PERSONS: PREVENTION AND PUNISHMENT (1975).


Finn 123

that Indonesia had several motivations in moving for regional control of maritime
activities in the Straits.'® Indonesia, because of its colonial legacy and history of
internal and external threats to its national cohesion, has been especially sensitive
to the operations of vessels in waters within and adjacent to the Indonesian
archipelago.'® Indeed, Indonesia has asserted, since 1957, its territorial jurisdic-
tion of the waters within the archipelago;”° Indonesia’s claim, along with similar
claims by the Philippines and Fiji, have been important at UNCLOS III as the
Conference has moved to define the rights and obligations of such archipelagic
states with respect to foreign vessels." (Indonesia was the first to act on the issue
of tanker safety in the Straits, declaring in 1972, with Malaysian “agreement in
principle,” that it would ban passage by vessels over 200,000-dwt capacity.) It
is also thought, however, that Indonesia, in moving aggressively on the issue of
traffic in the Straits of Malacca, may have sought to divert some traffic from the
Straits through Indonesia where such traffic could potentially provide some
benefit to its national ports and refineries and perhaps become subject to some
form of regulation in the sealanes and the straits within the Indonesian archipelago
that had traditionally been used for international navigation.” Malaysia, while
thought to be somewhat differently motivated, could reach a similar position on
the issue of vessel traffic in the Straits of Malacca; local control of traffic in the
Straits could help alleviate coastal environmental problems, especially harmful to
its small-scale fisheries, and also help to neutralize the region from the influence
of major outside powers.2* But Singapore, while it could hardly deny the
significance of the environmental and safety problems caused by tanker traffic,
was concerned lest assertion of coastal state authority by Indonesia and Malaysia
affect its access to world trade and the benefits of tanker operations, including
drydocking and other port services provided there.”

It is in examining these motivations that the relationship between the
environmental and safety concerns and security considerations becomes apparent.
Indonesia’s assertive posture may be attributed to its traditional concerns with
domestic autonomy over developments in and around the archipelago; in the
postcolonial period the Republic of Indonesia had moved aggressively to
consolidate its internal situation and assert its claim to leadership in the politics
in the region based on its large population and natural resource base.”° Malaysia
had sought in the same period to insulate itself from outside forces and prevent
the region from becoming a focus of great power confrontation after the
withdrawal of British forces, as well as to shield itself from the early regional
aspirations of Indonesia.2” Malaysia’s extraregional concerns have included
support by the People’s Republic of China for indigenous Communist move-
ments and the possibility of countervailing U.S. and Soviet buildings in the area,
which aside from its intrinsic importance in terms of geographical location,
population, and natural resources, also provided an essential link between the
Pacific and Indian Ocean theaters of military operations.” The Singapore


Rubin 41

jurisdiction and hospitality have been abused. Of course, if the asylum incident
occurs on the high seas or within American waters, no such conflict of jurisdiction
exists and rescue operations and asylums are governed by American law alone in
the first instance.

Another modern trend is the increasing restriction on the immunities of
foreign States acting in a commercial capacity. The fact of a ship being designated
anaval vessel by the law of its flag State represents today only an autointerpreta-
tion of facts that a foreign State or its national court might well want to look at
from a different point of view. The United States has been in the forefront of
States denying sovereign immunity from law suits based on the commercial
activities of foreign governments, and the concept of “commercial” is held to
rest on the nature of the operation, not its purpose. Combat operations and
legislation are regarded as in their nature governmental; routine navigation and
local activities that are typical of any ships, not just public vessels, are regarded
as in their nature commercial. Thus, buying ships’ stores even for a warship is
regarded in the United States as a “buying,” not as a governmental activity in
support of combat operations, and a common law suit can be brought against
the purchaser to enforce the purchase contract. It has not yet reached the point
of permitting the arrest of a war ship in an admiralty proceeding to enforce a
lien, but the trend is heavily in that direction. The fact that the United States
might stop short of setting such a precedent is not necessarily an indication that
foreign countries, which have watched the American initiative with some
apprehension, will stop at the same point we do when they evaluate their own
interests and come to their own autointerpretation of the law.”

8. Humanitarianism. There is a serious question in the minds of international
lawyers whether humanitarian principles, whatever they may be, form part of
the legal obligations of States. Strong arguments can be made both ways. As a
tule of thumb it is probably true that things done in derogation of a foreign
sovereign’s jurisdiction in the interest of saving life are not likely to raise serious
problem, but that derogation to save property are. The British historically raised
the issue over slavery: a right to life issue to them and a right to property issue
to the Portuguese, Americans and others. The result was a victory in theory for
property, and a victory in practice for the British, who marshalled public support
and political pressures until slave trading States agreed to change their laws and
to permit, by treaty, the British to enforce antislave-trade rules on their vessels.
There are, of course, times when equivalent problems arise today, for example
over the right ofa foreign national to flee oppression not linked to life-threatening
mob action but to his own government’s abusive exercise of its jurisdiction. In
those cases, the intervention of American vessels to help the fleeing foreigners is
frequently viewed as an interference in the foreign State’s internal affairs—its
territorial integrity and the ancient link a State has with its nationals wherever
they may be. In general, the greater the political motivation for the flight, and


vi

Contents

CHAPTER 9—THE MARINE ENVIRONMENT AND
MARITIME SECURITY IN SOUTHEAST ASIA:
CONTROLLING OIL TANKER TRAFFIC IN THE STRAIT
OF MALACCA
Daniel P. Finn (Nov-Dec 1981) . 2 2. 2 eee ee ee ee 119

CHAPTER 10—THE CORDON SANITAIRE—IS IT USEFUL?
IS IT PRACTICAL?

Stanley F. Gilchrist (May-Jun 1982) 2... .....000% 131
CHAPTER 11—MARINE TECHNOLOGY TRANSFER.
AND THE LAW OF THE SEA
James Stavridis Jul-Aug 1983)... 1... ee ee ee eee 147

CHAPTER 12—LAW OF THE SEA—WHAT NOW?
Jon L. Jacobson (Mar-Apr 1984) 2... . eee ee ee ee 159

CHAPTER 13—A FRAMEWORK FOR SMALL NAVY THEORY:
THE 1982 U.N. LAW OF THE SEA CONVENTION
Nien-Tsu Alfred Hu and James K. Oliver (Spring 1988) .... 177

CHAPTER 14—THE RIGHT OF INNOCENT PASSAGE FOR.
WARSHIPS IN THE TERRITORIAL SEA: A RESPONSE
TO THE SOVIET UNION
Ronald D. Neubauer (Spring 1988)... 6... ee ee eee 189

CHAPTER 15—TROUBLED WATERS OFF THE LAND
OF THE MORNING CALM: A JOB FOR THE FLEET
James R. Boma (Spring 1989) .. 2... eee eee eee 197

CHAPTER 16—AMERICA’S MARITIME BOUNDRY WITH
THE SOVIET UNION
John H. McNeill (Summer 1991)... 6... 02-0 eee 219

CHAPTER 17—THE KURILES: PASSAGE OR OBSTRUCTION
TO REGIONAL PEACE?
Rex M. Takahashi (Autumn 1991)... 2... eee eee 231

CHAPTER 18—DIPLOMACY AT SEA: U.S. FREEDOM OF
NAVIGATION OPERATIONS IN THE BLACK SEA
William J. Aceves (Spring 1993) ...- 2.220200 005 243

CHAPTER 19—THE “NEW” LAW OF THE SEA AND THE
LAW OF ARMED CONFLICT AT SEA
Horace B. Roberston, Jr. (Oct 1992)... 6. ee eee eee 263


Friedlander 381

U.S, Government attempted a mildly activist role to constrict air hijacking and
to seek sanctions against those States that had either aided and abetted terrorist
acts or provided haven to terrorist offenders. The Memorandum of Under-
standing on Hijacking of Aircraft and Vessels and Other Offenses, signed by the
United States and Cuba on 15 February 1973, eliminated the Cuban haven for
hijackers of American aircraft. Despite Prime Minister Castro’s denunciation
of that agreement on 15 October 1976, he has continued to enforce its
provisions.>” Also during that same year the American and Canadian Govern-
ments jointly proposed to the International Civil Aviation Organization (ICAO)
that commercial air service for countries providing terrorist havens be suspended.
In 1974 the U.S. Congress passed an Anti-Hijacking Act that had authorized the
President to do the same, and a similar resolution was voted by the Senate in
1976.

Recently, however, the United States has seemed uncertain in its direction.
On the one hand, the Omnibus Anti-Terrorism Act, sponsored by Senator
Abraham A. Ribicoff, as originally proposed was a stringent, even somewhat
repressive document that provided for stiff penalties to be directed against
sheltering States.>° Conversely, the current version of the Senate Bill is a much
watered-down, mild-toned statute that emphasizes reportage and official state-
ments rather than punitive, self-executing measures.*° The State Department
now Opposes automatic sanctions, and the Senate apparently has acceded to those
views." Even though the Bonn summit has raised doubts to the contrary, it
would seem that the United States has not accepted the strong stance of Secretary
Kissinger at the American Bar Association 1975 Annual Meeting:

If all nations deny terrorists a safe haven, terrorist practices will be substantially
reduced—just as the incidence of skyjacking has declined sharply as a result of
multilateral and bilateral agreements. All | governments have a duty to defend
civilized life by supporting such measures.

Given the cautious tentative approach of the Western democracies, the
decisions taken in Bonn during July 1978 must be termed a major surprise. Seven
heads of government representing Canada, the United States, Great Britain,
France, West Germany, Italy, and Japan not only agreed to deny political haven
to skyjackers, but also pledged themselves to cut off commercial air service with
any harboring State.*? At the same time they appealed to the world at large to
do likewise, but so far that request has met with no apparent response. A followup
session was to be held in the German capital by the seven signatory governments
the next week,“ but no further results have been announced. President Carter
was especially enthusiastic, declaring their skyjacking pronouncement to be
worth the entire trip.“> Thus, the Bonn summit declaration presently remains a
mere statement of principles, and unless implementing legislation is forthcoming,
the antihijacking agreement is liable to be a symbol not of cooperation and


462 Readings on International Law

unambiguous. It must be clearly and unequivocally the policy of the United
States to fight back—to resist challenges, to defend our interests, and to support
those who put their own lives on the line ina common cause.”*! Implementation
of this proactive policy requires that we make the fullest use of all the weapons
in our arsenal. These should include not only those defensive measures which
reduce U.S. vulnerability, but also new legal tools and agreements on interna-
tional sanctions, as well as the collaboration of other concerned governments.
While we should use our military power only if conditions justify it and other
means are not available, there will be instances, as there have been in the past,
where the use of force is our only alternative. In this circumstance, our action
would be fully justified as a necessary defensive measure to eliminate a continuing
threat or to save U.S. lives.

Closely related to the legal question is the question of linkage. When clear
linkage to a supporting State exists, we must publicize that relationship and attack
with discrimination only those targets which most affect the well-being of the
State sponsor. The “center of gravity” in the sponsoring State must always be
that target whose destruction will most significantly undermine the target State’s
will to commit future acts of terror against us. Since terrorism is a form of
international conflict bound by its rules, lawful response is properly limited to
those targets which do not enjoy civilian immunity. Military targets may be
preferable for two other reasons. First, the selection of military targets—while
the terrorists are attacking our civilians in violation of international law—should
not raise concerns on the part of other States. Additionally, selection of military
targets would refocus attention on the fact that terrorism is, in fact, a form of
armed conflict.

The thrust of this new strategy, outlined in NSDD 138, must be to reclaim
the initiative lost while the United States pursued a reactive policy which neither
deterred terrorist activity nor encouraged successful response. A note of caution
concerning our willingness to use force is required, however. The closest
coordination between our military force and civilian leadership is critical, both
to prevent publicity concerning our planning and to protect those forces
involved. Maintaining secrecy can mean the difference between success and
failure. Equally important, other countries working with us often have good
reasons not to want publicity, and unacknowledged programs offer them some
protection.

he key to an effective response to the threat posed by terrorist States is the
commitment to address the attacks they sponsor within the scope ofarmed
conflict. Full implementation of NSDD 138 should lead to increased planning
for lawful preemptive contingency operations to eliminate the military threat;
rather than, as now, treating each incident after the fact as a singular crisis
provoked by international criminals. By treating terrorists as combatants, the right


160 Readings on International Law

divided into basically two zones: (1) The vast majority of the ocean was deemed
high seas, where “freedom of the seas” reigned. That is, the high seas were not
subjectable to any nation’s sovereignty. Each nation was free to use the world
ocean for vessel (and, in this century, aircraft) navigation and its “inexhaustible”
resources (usually fish) without interference or regulation by any other nation.
(2) The other zone of ocean space was the territorial sea, a narrow border of ocean
along the shores of each coastal nation within which that nation could exercise
a sovereignty almost as absolute’ as it exercised over its land territory and its
internal waters. The only real exception to absolute sovereignty was the right of
every other nation’s surface vessels to “innocent passage” through the territorial
sea. Passage was “innocent” so long as it was not prejudicial to the peace, good
order, or security of the coastal nation. Until nearly the mid-20th century,
moreover, the maximum allowable breadth of the territorial sea was generally
considered to be three nautical miles, as a matter of customary international law.

This two-zone concept—combining an almost unimaginably large area of
free-navigation space with narrow areas of innocent passage space—was, of
course, a very convenient setup for any naval or maritime power. So thought
the United States in 1945 as it emerged from World War II as the global naval
power. Unfortunately for the United States and other maritime nations, 1945 is
the year that the old two-zone setup began to change: the fingers of coastal nation
sovereignty began to reach seaward. What happened to cause this new develop-
ment?

The first thing that happened was that President Truman issued two proclama-
tions that had been in the works since the early presidential years of Franklin
Roosevelt. The first Truman Proclamation? claimed for the United States
sovereign rights to the natural resources of the continental shelves adjacent to
USS. shores. This meant that the United States was staking a unilateral claim to
valuable resources, oil and gas in particular, beyond its three-mile territorial sea
out to an average distance from shore of 40-50 miles. The second Proclamation,*
issued the same day in September of 1945, seemed to assert U.S. regulatory
authority over fisheries in the high seas beyond the U.S, territorial sea; actually
it did not do so, but what was important was the perception by others of yet
another unilateral extraterritorial claim. Both Truman proclamations made a
special point of reaffirming freedom of high seas navigation in the waters beyond
the three-mile limit.

The international response to the claims of the 1945 Truman proclamations,
especially to the continental shelf claim was extremely favorable: coastal nations
thought it a good idea, and many followed suit. Others, apparently reasoning
that there is no good idea that cannot be made better, asserted broader and more
inclusive jurisdictions over sea and seabed areas off their shores. In 1947, Chile
made the first claim to a 200-mile resource zone—principally to protect the
Chilean whaling industry. Also in 1947, Peru asserted what is now viewed as a


Chapter 41

Reassessing the Security Alliance
Between the United States and Japan*

Lieutenant Roger D. Wiegley
JAG Corps, U.S. Navy

While U.S. leverage in Asia can no longer be taken for granted, American policy is still
a critical factor in the stability of the area. Some U.S. initiative leading to coordination of
that policy with the East Asian policies of Japan seems necessary to promote mutual objectives
and to reconcile differences.

he role of the United States in the security of Japan is an issue that has
received relatively little official attention, despite significant developments
in Northeast Asia over the past decade. These developments, clearly more than
isolated or temporary phenomena, are relevant to the U.S.~Japan security alliance
in at least three respects. First, the U.S. commitment to Japan has, in Japan’s
perception, lost much of its credibility. Second, improved relations between Japan
and the People’s Republic of China (PRC) raise the prospect of a shift in the
strategic balance of power in Asia. And third, the Soviet Union has significantly
increased its use of military forces to exert political pressure on Japan. Each
development requires careful examination in terms of its implications for both
United States and Japanese interests.
Japan’s perception of the American commitment in Asia has been shaken by
a series of dramatic events over the past 10 years. Beginning with the 1969
“Nixon Doctrine,” which stated that conventional Asian wars would thereafter
be fought by Asians, Japan witnessed the evolution of the U.S. policy of
withdrawal from Vietnam. Initially, Tokyo’s reaction to the U.S. withdrawal
‘was muted, largely because U.S. pronouncements on military policy indicated a
shift in emphasis toward clearly identifiable American interests—such as the
security of Japan. Then, early in 1977, at the very outset of his administration,
President Carter announced that American ground forces would be withdrawn
from South Korea. The change in U.S. policy toward Korea caused considerable
apprehension in Tokyo despite assurances from Washington that the United
States was not deserting any of its Asian allies. Not surprisingly, many Japanese
viewed the announcement of withdrawal from Korea as more indicative of

* Reprinted from the Naval War College Review February 1979.


Chapter 39

The Environment and the Laws of War:
The Impact of Desert Storm*

Colonel James P. Terry, U.S. Marine Corps

he Iraqi invasion of Kuwait and the resulting environmental carnage caused

by the burning of oil wells and the fouling of Gulf waters have heightened
international concern for the adverse environmental effects of armed conflict.
The questions which arise relate to the sufficiency of the existing legal regime
intended to protect the environment,and to parallel concerns that more extensive
strictures could restrict legitimate defensive military operations under the law of
armed conflict. This paper examines these issues, and concludes that the current
framework of relevant international law, when understood and applied, protects
both the environment and the broader interests represented in the law of armed
conflict,

The Debate

The Charter of the United Nations both prohibits the unlawful use of force
by States and guarantees the right of self-defense against such unlawful coercion.
Articles 2(4) and 51 of the Charter, together with Hague and Geneva Conven-
tions limiting methods and means of conducting warfare and protecting com-
batants, noncombatants, and their environment, and create a comprehensive legal
fabric designed to limit destructiveness of international armed conflict. Inherent
within the law of armed conflict is the understanding that even the most
sophisticated and precise weapon systems will exact a price upon the environ-
ment.

Environmentalists contend that that price is too high, and demand that any
system destructive of the environment be banned. Those responding explain that
only through a military capability such as reflected in the coalition reaction to
Iraqi aggression can the environment, in the long term, best be preserved. They
further remind the environmentalists that had existing environmental provisions
within the law of armed conflict been adhered to by the Iraqis, the destruction
of Kuwaiti resources would have been minimal.

* Reprinted from the Naval War College Review Winter 1992.


508 Readings on International Law

agents. Until now, the availability of toxins has been limited by a production
bottleneck. Large numbers of creatures and expensive, laborious processes were
needed to yield even small quantities of toxin. For example, using refinement
techniques available during the late 1960s, the U.S. government generated only
11 grams of shellfish toxin from several tons of mussels. Biotechnology changes
all this.

With gene-splicing, micro-organisms can now be converted into miniature
poison factories, permitting the production of militarily significant amounts of
toxins at far less cost and effort. Soviet use of “black rain” in Afghanistan, believed
to be a form of toxin causing one-breath anesthesia, illustrates the tactical
potential of such agents. According to an official U.S. study, the Soviets are
pursuing development of a broad spectrum of natural and synthetic toxin
‘weapons, ranging from extraordinarily lethal agents to those which merely induce
sudden panic, listlessness, or sleepiness.

The obvious and chilling threat of lethal agents tends to divert our attention
from problems posed by incapacitants. These nonlethal toxins could have a
disproportionate impact, however, due to the natural reaction of the people who
are unaffected to assist the stricken. In Douglass’ estimate, incapacitants “can be
militarily more effective [than lethal agents] because sick or disabled soldiers and
dependents tie up scarce resources, demand the energies of those still healthy,
and have a very demoralizing effect.”*” The crucial point is that toxin weapons
can theoretically be tailored to create a wide variety of effects, depending on the
tactical need.

Covert Use of Biological Weapons. In the 1970s, Cuba charged that the CIA was
clandestinely using biological agents to try to destabilize the island.°° Allegedly,
this campaign targeted vital crops such as tobacco (blue mold) and sugar cane
(cane smut), livestock (African swine fever), and also the populace itself (hemor-
thagic strain of dengue fever)” Whatever the source, these outbreaks cost Cuba
several billion dollars and 300,000 cases of debilitating disease. The Cuban
charges highlight several reasons why covert biological warfare is such a potential
menace—the difficulty of proof, the range of potential targets, and the substantial
damage that can be inflicted by relatively cheap and easily concealed agents.

None of these problems is new. Even before the advent of genetic engineering,
nations had at their disposal some nasty means for biological sabotage. Nature is
a veritable cornucopia of pathogens and maladies. The biological revolution,
however, expands both the size of the chessboard and the power of the pieces
available for such covert operations.

As previously discussed, the potential number and potency of these biological
“chess pieces” has increased dramatically due to gene-splicing’s capacity for
reshuffling the genetic deck in a controlled way. Nature no longer sets the upper
limit for either variety or virulence; and as genetic engineering increases in


184 Readings on International Law

zones, superpower naval interests in certain waters, and utilization of the deep
seabed.” Barry Buzan has done a thorough study of the same issue with two
different approaches: one legal and technical and the other from a geographical
or regional perspective. From the legal point of view, Buzan classifies the sources
of dispute as contention over: national boundaries, rights within national boun-
daries, rights in the ocean beyond national jurisdiction, and disputes arising from
non-ocean sources.” An international maritime dispute can also stem from
several sources, which is indicative of why these disputes are often so complicated
and difficult to resolve. For example, the Sino-Philippine dispute that has
stretched over the last ten or more years deals with contentious issues over
delimitation of mutually exclusive boundaries, rights pertaining to islands,
delimitation of the outer limits of national jurisdiction, fishing, and nonmilitary
navigation.”° The Sino-Argentine incident of 1986 was the result of a tripartite
contention over ownership or rights pertaining to islands, fishing, and rights in
the ocean beyond national jurisdiction.””

Although these sources of conflict, by their nature, are by no means new to
many coastal States, the new ocean regime has undoubtedly intensified them by
legalizing and enshrining coastal States’ national rights in a detailed and com-
prehensive international treaty. When looking into the sources of these disputes,
we should not lose sight of the fact that the roots of disputes or conflicts are the
different national views and interpretations of the same clauses and phrases
written in the Convention which give states the rights they hold dear. Thus, the
same national rights enshrined in the Convention can be the sources of interna-
tional disputes on the one hand while also serving as guidelines for both naval
development and constraints on naval operations. The Convention, in short,
provides not only the possible sources of disputes and conflicts arising from it,
but also the context within which a navy performs its duties to uphold and protect
national rights.

The codification of the 1982 LOS Convention stemmed from the presump-
tion that “with due regard for the sovereignty of all States, a legal order for the
seas and oceans which will facilitate international communication, and will
promote the peaceful uses of the seas and oceans, the equitable and efficient
utilization of their resources, the conservation of their living resources, and the
study, protection and preservation of the marine environment” would be
established.”® Thus the Convention emerges as a multi-purpose treaty con-
centrating on all human uses of the seas and oceans. However, national
sovereignty is still the bottom line. Thus, “peace, good order or security of the
coastal States,””? “[to] refrain from any threat or use of force against the
sovereignty, territorial integrity or political independence of States,”TM° and “the
protection of its [coastal State’s] security”?! are the dicta for all ocean-user States.

Most coastal States do not have the capability to explore or utilize the resources
in situ in the Area, or the seabed and ocean floor and subsoil beyond the limits


Boma 207

a growing blue water naval power, increasingly aware of the benefits accruing
from unimpeded high seas freedoms, curiously, were content merely to report
the North Korean announcement and Japan’s disapproval.°” China, perhaps due
to the existence of its own indistinguishable military warning zone, issued no

statement regarding the announcement.°®

Ambiguity Regarding Legal Impact of 1953 Armistice. Although not yet advanced
directly in support of its military boundary zone, North Korea might plausibly
argue that the Armistice signed at P’anmunjom in 1953 was legally and, in fact,
merely a ceasefire and that, technically, a state of war still exists on the peninsula.
Also, there is ample historical precedent for such an argument. Many other
countries, including the United States, have established in the past, or presently
maintain, maritime defense or war zones. However, there are several salient
characteristics of the North Korean zone which distinguish this from other such
zones and would, therefore, tend to undermine any significant reliance on
historical analogies.

Maritime security or warning zones find their modern origins in the sea
defense zones promulgated by Japan during the Russo-Japanese War of 1904.”
The Japanese zones and those adopted by the United States during World War
II extended well beyond the limits of their respective territorial seas. However,
they primarily imposed limits on the transit of foreign vessels during certain hours
or in particular areas without imposing a total ban on such passage. Also, these
zones were generally established at the outset of hostilities and terminated
promptly at the conflict’s end.

A more recent example would be the Maritime Exclusion Zone established
around the Falkland Islands by British naval, primarily submarine, forces during
the 1982 war. Unlike the North Korean claim, the British announced, in
advance, the exact position of the zone and initially limited its application to
Argentinian warships and aircraft which were deemed a threat to British forces
in the area of operations. Subsequently, the British prohibited all such operations
with the imposition ofa Total Exclusion Zone. However, this zone was imposed
only during the actual conduct of military operations, and was lifted at the
conflict’s end, with the exception of a ban on Argentine military traffic within
150 nautical miles of the Islands (the Falkland Islands Protection Zone).
Further, pending a permanent settlement of the conflict, a “prior permission”
regime remains in effect for Argentine civilian vessels or aircraft within the Zone.

‘Whatever the reasonable limits are as to scope, notice and duration of such an
arguably permissible zone, the North Korean claim was announced 24 years after
the cessation of open hostilities, and the degree of control envisioned is surely
beyond the reasonable spectrum of legitimate measures which might be under-
taken by a State which no longer faces imminent or actual hostilities. Moreover,


596 Index

Huebner-Malinin Agreement (1947), 255

Human rights, Tehran Conférence on, 469

Human-shield prohibitions, 471

Humanitarianism. See International Law, fundamental rules of.
Hyde, Charles Cheney, 459

Hydrocarbon energy resources, 433-435, 445. See also Seabed.

Icelandic-British fisheries dispute (Cod Wars), 99, 101
ICJ. See International Court of Justice.
Tdemitsu Maru, 121
Immediate pursuit, 483-484
Immunity practices, 40-41
In situ jurisdiction, 443-444
Incendiary weapons, 472
IncSea Agreement of 1972 (Agreement between the U.S.A. and U.S.S.R. on the Prevention of
Incidents on and over the High Seas)
annual review, 576, 578
model for subsequent bilateral agreements, 577
provisions, 52, 135, 248, 576-577, 580
strained by NATO Pershing II deployment, 576
strained by Soviet war in Afghanistan, 576
tested in 1973 October War in Middle East, 576
India
adherence to Seabed Treaty, 103
Agreement between India and Sri Lanka on the Boundary in Historic Waters (1974), 225
biological/biochemical weapons policy, 512
proposal to ban military use of seabed, 290
Individuals as subjects of international law, 9
Indonesia
archipelagic baseline, 292
archipelagic waters, 123
joint declaration on the Straits of Malacca, 120
regional authority over Straits of Malacca, 122-123
INF Treaty
asymmetry of forces, 566-567
British response, 571
compared to Salt II, 565
disregard for Soviet advantage in conventional power, 567
equal security principle, 566
French response, 571
impact and consequences
arms reductions, 567
diplomatic interpretations of, 566
imbalance of NATO and Warsaw Pact powers, 566-567
NATO nuclear capability significantly reduced, 569
NATO nuclear weapons remaining, 568
NATO option to strengthen nuclear inventories excluded, 571
nuclear stockpile reductions, 565, 566
on correlation of nuclear forces, 571-572
on NATO strategy and doctrine, 565, 566, 567-569, 571-572
on plausible linkage between NATO theater weapons and U.S. strategic arsenal, 568-569
on Soviet strategy and doctrine, 565, 569-572. See also Soviet military strategy and doctrine.
on theater nuclear balance, 571-572
on theater strategic operations, 571-572
on vulnerability of NATO bases, 572


Stavridis 149

high-tech applications), manganese (steel production), copper, and nickel. The
United States currently imports over 97 percent of its cobalt and manganese, as
well as 70 percent of its nickel. The land-based producers of U.S. cobalt and
manganese are not politically stable (Zaire and South Africa, for example), and
the prices of the minerals have been extremely volatile. The deep seabed mining
technology that could be transferred under the mandatory portions of the Law
of the Sea Treaty could include the machinery and technology necessary to:
prospect (undersea vehicles, surface ship navigation and positioning systems,
sonic searchers), harvest the manganese nodules (mining vehicles capable of
operating at the 14,000-18,000-foot depths of the deep seabed), lift (conveyors,
pneumatic lift devices), transport (ships, loading systems), and process (artificial
islands and ports, chemical processing equipment, refining, mineral/metal
transport), Many of the technologies involved in deep seabed mining are
extremely sensitive, representing proprietary knowledge developed by private
corporations. In addition to the innate value of the innovative technology, the
value of the deep seabed mining technologies must be measured against the
opportunity it affords for exploiting the vast hoard of minerals on the deep seabed.
Clearly, the value of the technology is enormous. Some analysts place its worth
in the billions of dollars.

The Treaty allows for mandatory transfer of deep seabed mining technology.
It also strongly encourages the transfer of other marine technologies, although it
does not provide for any other mandated transfers. The value of the other marine
technologies is also considerable. One of the strongest sections of the Treaty
encourages the exchange and transfer of information and technology involved
with fishing. Many new techniques have been developed over the past decades,
yet virtually all of the world’s fishing is still done with primitive methods. “Major
innovations include nylon nets, new devices and techniques for fish location,
sonars, echo sounders, long distance processing factory ships, and sophisticated
trawling.”” The development of sea farming and aquaculture are also being
explored.

Other interesting advances are being made in the technology of artificial
islands. This involves recovering land areas from the ocean and using them in a
variety of high technology and agricultural ways, including nuclear power sites,
defense installations, toxic waste processing, storage, refining, and other factory
uses, The technology involved here could also lead to great improvements in
harbor capabilities. The artificial islands technology could be liable for mandatory
transfer ifsuch stations were used specifically for the processing of the deep seabed
mining minerals, which is a good possibility because of environmental and
ecological considerations.®

OfBhore hydrocarbon installations are a part of marine technology that is
constantly improving. There are more than 700 active rigs operating in the world
today, and more are being constructed, using extremely advanced technology at


58 Readings on International Law

federal district courts try the case subject to appeal. Termination of a prescribed
rule under the Act might occur when a new law of the sea treaty is ratified by
the United States. The appraisal function of the Act includes reports by the
Secretary of Commerce to Congress and the President, research, and reports by
the fisheries councils to the Secretary. Sea Power was not written in a law-science-
policy format, and hence has little explicit reference to the authority functions.
Primary attention has been given to the intelligence, promotion, prescription
and appraisal functions as Janis describes the background and development of the
LOS negotiations.

The Decision Process. Having completed this comprehensive matrix for
describing the interaction of values in the context of phase analysis and authority
functions, the policy scientist would proceed to the decision process, consisting
of five steps or “intellectual tasks”: (1) clarification of goals; (2) description of
past trends; (3) analysis of conditions affecting those past trends; (4) projection of
future trends, and (5) evaluation of policy alternatives. As Professor Moore has
correctly observed, “These tasks are performed by all of us, implicitly or
explicitly, when we make any decision.””” With addition of feedback loops, this
general process is found in all decisionmaking models. The basic military planning
process employs similar methodology. Sea Power does state the goals or missions
of the world’s principal navies as articulated by their admirals. Should these be
goals for the law of the sea as a whole, and should not a broader goal—national
as coinciding with the general international ideals of the U.N. Charter perhaps
reduced to a preference for human dignity—have been stated as the core ideal
from which other subgoals descend and depend? Nearly all nations mentioned
in Sea Power ate parties to the U.N. Charter and therefore must be held
accountable to its principles and purposes. Even if the analysis considers only the
goals of armed forces or navies as the relevant focus, a generalized classification
such as that employed by Booth might have been more comprehensive:
(1) Projection of force functions
(i) General war
(ii) | Conventional wars
ii) Limited wars and interventions
(iv) Guerrilla wars
(2) Balance of power functions
(v) Strategic nuclear deterrence
(vi) Conventional deterrence and defence
(vii) Extended deterrence and defence
(viii) International order
(3) Diplomatic functions
(ix) Negotiating from strength
(x) Manipulation


Robertson 13

Law of the Sea, which contains extensive provisions for compulsory conciliation,
arbitration, or ultimately adjudication.'! This was a real breakthrough because it
marked the first time that the Soviet Union was willing to accept any form of
third-party dispute settlement.

* Finally, there is the United Nations Security Council, which has the
authority, ifall other methods fail, to impose sanctions, including the use of armed
force, on a wrong-doing State whose actions it believes constitute a threat to
peace, a breach of peace, or an act of aggression.

As all are aware, until recently effective action by the Security Council in such
situations was prevented by the “veto”—that is, the requirement for unanimity
among the five permanent members of the Council (China, France, the United
Kingdom, the former U.S.S.R., and the United States).'? With recent events
(including replacement of the Soviet Union by Russia) making unanimity
possible under certain circumstances (as, for example, the recent Iraqi invasion
of Kuwait), it is appropriate that we address the methods the Security Council
may employ and the procedures it may follow in adopting them. We shall also
examine a State’s right of self-defense and how this doctrine fits in with any
enforcement action that may be taken by the Security Council. A caveat is in
order, however: the latter issue is a complicated subject and one about which
there is great disagreement among international lawyers. In discussing it in this
small space a great deal of over-simplification is necessary.

Self-Defense and the Role of the
United Nations Security Council

The Security Council’s principal powers with respect to the settlement of
disputes and dealing with threats to peace are stated in Chapters VI and VII of
the United Nations Charter. Chapter VI deals with the pacific settlement of
disputes and empowers the Security Council to investigate any international
dispute or “situation which might lead to friction or give rise to a dispute, in
order to determine whether the continuance of the dispute or situation is likely
to endanger the maintenance of international peace and security.” It can do this
either on its own initiative or at the request of one of the parties to the dispute.
If it determines that a dispute or “situation” (as characterized above) exists, the
Security Council may under Chapter VI recommend either a method of
resolution or specific terms of settlement.

Chapter VII comes into play only if the Security Council determines that
there exists a threat to peace, a breach of the peace, or an act of aggression. If so,
the Council may either make recommendations to the parties or take
“measures . . . to maintain or restore international peace and security.” Such
measures might not involve the use of armed force; such options include
“complete or partial interruption of economic relations and of rail, sea, air, postal,


56 Readings on International Law

tiver being a more perceptible boundary, for example, than the territorial sea’s
limit); the place of the interaction on a time continuum; institutionalization, or
the degree of organization in which interactions occur (the current “turmoil”
over the law of the sea perhaps being an example); and crisis level, which may
generate different expectations under varying intensities of crisis);** (4) base or
resource values-power, skill, enlightenment, wealth, respect, rectitude, affection,
and well-being—that participants have at their command for achievement of
desired ends in the legal process; (5) strategies-coercive or persuasive modalities
through diplomacy, ideology, economics, or military force—for the manipula-
tion of base values to achieve denied goals; (6) outcomes and (7) effects, short
and long-term results of the process of interaction.

Janis obliquely employs a similar but not as comprehensive analysis. With
respect to his chapter on the United States, for example, he lists the almost
bewildering cast of actors involved in decisions on the ocean policy process: the
executive branch, Congress, non-governmental institutions, and their com-
ponents. Curiously, reference to the federal judiciary with its capacity to fashion
a federal common law to promote uniform international law norms,° or to
interpret the U.S. Constitution and the federal statutes and treaties that are the
supreme law of the land,”6 was omitted. Perspectives of the actors—from what
viewpoints the participants speak—are indicated by inference, particularly in the
chapter on the U.S. Navy. In this regard, Booth’s more general analysis of the
“players” and their characteristic perspectives should also be consulted. The
geographic situations at stake—straits passage, width of the territorial sea, and
deep seabed interests—are one of the central themes of the book. However, as
indicated above, discussion of other dimensions of the geographic planes of the
oceans as embedded in international law norms other than the law of the sea
negotiations is limited. Power resources—particularly the strengths of the world’s
navies and equivalent of the U.S. Coast Guard—are given careful attention by
Janis, but he does not discuss other important power variables such as the impact
on deterrence decisionmaking of the other two legs of the Triad, land-based
ICBMs and the Strategic Air Command, not to mention Army and Marine Corps
forces that would be involved in the projection phase of any naval operation.
The important factors of national wealth and the levels of readiness (skills) and
training (enlightenment) are mentioned, but there is little attention given to those
often untangible, but nevertheless real, resources of respect, affection, etc.2”

The strategy of military coercion or suasion is a great theme of Sea Power,
which recognizes by implication strategies of diplomacy, (the LOS negotiations),
economics (claims of the U.S. fishing industry), and ideology (implicit in Adm.
S.G. Gorshkov’s description of the U.S. Navy as “an instrument of imperialist
policy”). The distinction between coercive strategy using military force, and
persuasive military strategies, recognized by Cable and Luttwak, albeit with
different terminology, would have sharpened the focus of inquiry. A similar


182 Readings on International Law

Germany and sealed off Russia from Western Europe, thereby isolating the two
politically “diseased” nations of Europe.

The use of the term cordon sanitaire in a strictly maritime context originated
in the late 1960s with Vice Adm. Isaac C. Kidd, Commander U.S. Sixth Fleet,
as he attempted to devise a means of eliminating the Soviet tattletale problem in
the Mediterranean. The term has gained acceptance but relatively little has been
written on the subject. Maritime cordon sanitaire may be described in general
terms, as follows: an area relative to U.S. Naval Forces, defined by either
geographic boundaries or a circle centered on the formation in which the
presence of units ofa potential enemy would be considered a hostile act, making
such units subject to military action.

One must first recognize that the decision to implement a cordon sanitaire
would be made only by the President and National Security Council. There are
many political and legal implications and risks associated with such action which
would preclude any lower authority from declaring a cordon sanitaire. Secondly,
it is clear that the use of cordon sanitaire would be limited to highly tense
situations barely short of war, when the threat posed by tattletales would become
intolerable. Once hostilities had opened, cordon sanitaire would have little, if
any, usefulness. Thirdly, a cordon sanitaire must be applied to all the potential
enemy’s surface, air, and submarine units in order to be effective. Since any ship
or aircraft belonging to the foe can gather and transmit information, all Soviet
ships and aircraft of whatever description, civil as well as military, would have to
be subject to the cordon sanitaire restrictions. Fourthly, a U.S. cordon sanitaire
would be selective. That is, neutral and allied units, both military and civil, could
be permitted within the cordon sanitaire. Only Soviet and Warsaw Pact units,
together with those of any other nation or nations deemed to pose a threat, would
be excluded from the area.

Even though the use of cordon sanitaire can be contemplated for the
protection of any group of ships, such as a convoy or an amphibious task group,
the term “battle group” will serve our purpose here. Likewise, the term “Soviet”
will be used to cover the units of any country associated with the Soviet Union.

There are no historical examples of the use of a maritime cordon sanitaire,
but the concept has been used in war games. The results have been mixed, In
Admiral Kidd’s experience, war games in which Blue used a cordon sanitaire
generally ended more favorably for Blue than those in which it was not
attempted.” Another veteran of many war games, Capt. S.D. Landersman of the
Naval War College’s Strategic Studies Group, says that cordon sanitaire had no
discernible effect on the outcome of the war games he has observed; if anything
the imposition of a cordon sanitaire seemed to precipitate rather than delay
hostilities?

However, war game experience concerning cordon sanitaire is useful only up
to a point since, in the minds of those playing the national command authorities,


482 Readings on International Law

Peacetime and Wartime ROE Distinguished

Peacetime ROE are distinct from ROE applicable during armed conflict
(WROE). Peacetime ROE generally limit military actions, including the use of
force, to defensive responses to hostile acts or demonstrations of hostile intent in
situations short of armed conflict. They are premised on the right of self-defense
and provide rules for the exercise of that right. ROE during armed conflict do
not limit military responses to defensive actions alone but do place limits,
consistent with national objectives, strategy and the law of armed conflict, on
the means and methods of warfare and will necessarily affect tactics, These include
restrictions on certain weapons and targets, and ensure the greatest possible
protection for noncombatants consistent with military necessity, proportionally
and national policy. WROE are thus a useful tool to ensure that force is used
toward achieving the desired military objectives and political goal.

Right of Self-Defense

As previously noted, all peacetime ROE are premised on the right of
self-defense. Every commander must understand that this right of self-defense is
applicable for two distinct purposes: protecting his command and protecting the
nation. Most every peacetime ROE contains a warning to the effect that
“nothing in these rules is intended to limit the commander's right of self-
defense.” One might wonder what that warning means, particularly in light of
all the detailed rules that accompany it. It means that the ROE do not address
the right to protect the individual, the commanding officer, the unit commander
and his command from attack or from threat of imminent attack, in situations
involving localized conflict, or in low-level situations that are not preliminary to
prolonged engagement. Those situations are always covered by the inherent right
of unit self-defense (but little or no operational guidance is given on how and
where to exercise that right). Rather, peacetime ROE provide guidance on when.
armed force can be used to protect the larger national interests, such as the
territory of the United States, or to defend against attacks on other U.S. forces
not under your command. This concept relates to regional or global situations
even ifa high-level commander knows that no hostile acts have been committed,
or no hostile intent is evident, at a particular local level. When this distinction is
understood, the disclaimer should be understandable and the purpose of the rules
clearer.

The Nimitz’s two F-14s exercised their right of unit self-defense when they
responded to the attack on them by two Libyan Su-22 fighters on 19 August
1981, in international airspace over international waters in the south central
Mediterranean. Nevertheless, the open ocean missile exercise, which the F-14s


Wiegley 561

useful to consider the advantages Japan has enjoyed as a result of low defense
budgets and to compare the probable consequences of militarization.

The most obvious benefit of Japan’s low military profile has been the
facilitation of phenomenal economic growth. In the 30-plus years since World
War II, Japan has risen from economic impotence to a nation with the world’s
third largest GNP. While Japan’s growth cannot be attributed solely to low
defense budgets, a contributing factor has certainly been the allocation of funds
for industrial development rather than defense. It is apparent to the Japanese that
their economic strength has given them more international prestige and a higher
standard of living than would have been the case had they devoted a significantly
larger share of their national wealth to military development.

Asecond factor militating against Japan’s rearmament is the political instability
it would cause in Asia, particularly if Japan were to acquire nuclear weapons.
The Soviet Union would no doubt feel threatened, and it would almost certainly
intensify its military buildup around Japan. Additionally, smaller nations with
whom Japan has trade relations might be alarmed either by the prospect of
alienating the Soviet Union or of becoming Japan’s “satellites.” This, in turn,
could cause the smaller nations of Asia to reconsider their own need for more
arms or stronger ties with a superpower. And finally, the acquisition of nuclear
weapons by Japan would probably alienate the United States, given the latter’s
commitment to nuclear non-proliferation,® possible leaving the PRC as the
only power to which Japan could turn in the event of crisis where the nuclear
threat was inappropriate. Such reliance on the PRC would be dangerous for
Japan because of the risk of a Sino-Soviet rapprochement or, more likely, the
development of an intense economic rivalry between China and Japan for
markets in Asia.

Based ona rough cost/benefit analysis, then, it seems unlikely that Japan would
pursue a policy of rearmament, even to compensate for what was perceived as
inadequate American support. Instead, Japan would probably seek an inde-
pendent role in Asia, with a possible bias toward the PRC. The advantage of
such a posture, if it succeeded, would be to allay Soviet fears by reducing the
USS. presence in East Asia. This, according to the plan, would cause the Soviets
to abandon their threatening posture toward Japan, assuming the latter could
show that it would not permit its friendship with the PRC to support anti-Soviet
objectives.

If Japan were to embark on such an independent course, it would almost
certainly proceed slowly, not only because of the uncertainties involved but also
to minimize the adverse reaction in the United States. Friendship with the United
States would retain a high priority in Tokyo’s foreign policy, even while Japan
was subordinating U.S. interests to the goal of eliminating the Soviet threat. A
gradual movement by Japan away from U.S. influence would probably begin
with a reduction in the Japanese Self-Defense Force, which is maintained at least


Walker 49

The bulk of the fifth chapter recounts the differences between the naval
powers and the coastal States on the straits issues and the general consensus for a
12-mile territorial sea except for questions related to economic resources. The
discussion of naval interests in law of the sea issues in the first five chapters cites
standard references relating to naval missions and naval forces. Janis relies on
treaties and standard works on the law of the sea in laying the groundwork for
his analysis of recent international negotiations relating to the law of the sea issues.
He frequently cites the Informal Single Negotiating Text (ISNT), the Revised Single
Negotiating Text (RSNT), or individual States’ positions relating to the negotia-
tions, and cites U.N. General Assembly resolutions in point.

Janis’ summary of the United States internal decisionmaking process for
formulating a coherent oceans policy reveals the bewildering complexity, or
morass, of governmental agencies that have an input, or finger in the pie, for
these issues. While the corresponding subchapters on the role of British and
French naval interests in the ocean policy process also discuss the internal
governmental decisionmaking processes, some attention is paid to the strength
of private shipping interests and public opinion. Except for indirect references
to pressures on Congress, and a summary of commercial interests, and non-
governmental organizations, there is little discussion of the great influences these
groups can bring (and have brought) to bear on official decisionmaking. The
U.S.S.R. Navy’s role in its ocean policy process is, as with most things Soviet,
still much of “a riddle wrapped in a mystery inside an enigma.” However, certain
externalities of Soviet national interests, such as its growing merchant fleet, and
the composition of the U.S.S.R. delegation to the law of the sea conference give
some keys to its internal decision process, as Janis suggests. One egregious
omission from the analysis in the chapter on coastal navy States is any discussion
of the pressures that shipping interests of countries such as Japan and the
Pan-libhon nations (Panama, Liberia, Honduras) may have exerted on the
negotiations or the national decision process.° Similarly, there is little mention
of the interest of states that are great consumers of fish and other marine resources.

Janis sees these crucial interests of the world’s navies in ocean policy: the
breadth of the territorial sea, conditions for the right of transit through interna-
tional straits for warships, and the use of the deep seabed for military purposes.
In each chapter he relates the legal position of the major naval powers and the
coastal States to the available stated positions of their navies’ decisionmakers. As
with the Soviets in other aspects of the book, concrete information is scarce. The
coastal States’ positions vary and perforce are only summarized.

The sixth chapter, “Navies and the Development of the Law of the Sea,”
examines naval interests’ influence on the development of the law of the sea, or
the “process [of] authoritative decision [that] generates [the] law of the sea both
by custom and by convention,” referring to the work by Professors Burke and
McDougal.’ The sub-chapter on naval power’s influence on the development


490 Readings on International Law

rules of engagement, and in the absence of these, naval operations are likely to be too hesitant for want of
certainty or too uncontrolled to be politically acceptable.” Id.

22. Inquiry into the USS Pueblo and EC-121 Plane Incidents, Report of the Special Subcommittee on
the USS Pueblo, House Armed Services Committee Report No. 91-12, 91st Congress, 1st Session, 28 July
1969, at 1668-73.

23, Luckow, Victory over Ignorance and Fear: The U.S. Minelaying Attack on North Vietnam, Naval War College
Review 17 (January-February 1982). (“Peacetime contingency planning should contain one or more sets of
rules of engagement to fit the expected variations of possible scenarios in a time of tension,” Luckow, at 26.)

24, NWIP 10-2, U.S, Army Field Manual 27-10, and Air Force Pamphlet 110-31.

25. Printed in the 6 June 1975 Congressional Record, the 1975 DIGEST OF U.S, PRACTICE IN INTERNA-
‘TIONAL LAW, and the Peers Report, Volume I, Chapter 9, and Volume Ill, Book 2, Exhibits D-4 et seq.

26. Pease, Comment and Discussion, US. Nav. Inst. Proc. 83 (june 1982).


318 Readings on International Law

moving radar contact was detected in the channel 6 miles ahead of us, proceeding
north at a similar speed, 10 kts. I gradually increased speed to close the gap in the
hope of identifying the contact in the open waters to the north of Swan Island where
there would be room to maneuver and to evade shore fire. When the distance had
closed to 4.8 miles we saw the vessel alter sharply to port, then increase speed and
change her heading to gain cover of North Swan Island two miles away.

I fired a starshell in the hope of identifying the stranger, without success.
Hence, I commenced fire at the vessel at 0112. The first dozen rounds were
equipped with airburst fuzing so as to deter the vessel from further flight rather
than to attempt to sink her. After two minutes I checked fire to assess the effect.
But the quarry continued towards shelter, steering evasively. I then recom-
menced fire at 0117 with contact fuzing. We saw a number of hits, three of them.
sizable, even through the soaking gloom. Once more I checked fire, but still the
ship continued toward shelter. Again I recommenced fire and, after about forty
rounds, there was a large orange flash which rose up into the cloud base—two
minutes later the radar contact faded from the screen. The vessel destroyed was
later established to be the Argentine naval transport Islas de los Estados, which was
carrying, according to information obtained from captured Argentines later,
325,000 liters of aviation fuel and some military vehicles.

Life jacket lights were sighted close inshore, some five miles south of the
Argentine garrison at Port Howard, hence out of navigable waters and beyond
my assistance. Alacrity recovered her helicopter, completed her transit at high
speed in order to deny Argentine forces any chance to retaliate, and finally passed
through the northern channel at 0300. There were no mines along our track!

The lesson here was that I had the rules which gave me the operational
flexibility to engage a militarily important target. I had the required identification
criteria to engage a valid target before he could escape.

So what are the key “messages” to be learned that would be instructive
regarding Exclusion Zones and Rules of Engagement?

Exclusion Zones.

* The exclusion zone can greatly simplify the military commander's task—
especially against submarine and air threats—particularly if the criteria which are
deemed to demonstrate hostile intent by intruders are clearly defined.

* Declaration of the zone must be early enough to allow the potential foe to
respond as you wish—always allowing for the difficulties of strategic communica-
tions, particularly with his subsurface units.

* The benefits of exclusion zones will clearly hinge upon:

(1) Adequate “police” force levels.

(2) The presence and density of neutrals.

(3) The complexities of identification criteria required.

(4) The potential for escalation that their enforcement will generate.


534 Readings on International Law

Development of Restrictions
on the Use of the Environment

Restrictions on the use of the environment have a long history in both national
initiatives and international agreement and custom. The practice and acceptance
by States of certain restrictions and limitations on the use of the environment
have been observed both with regard to means and methods of warfare and to
protection of victims. These two strands have come to be known as The Hague
and Geneva law, respectively.

In the United States, for example, the Army’s Lieber Code of 1863 restricted
means and methods of warfare for Union forces during the Civil War so as to
protect property whose destruction was not necessary to the war effort.! The
1868 Declaration of St. Petersburg, equally significant, proclaimed that the only
legitimate objective of States during war is to weaken the military forces of the
enemy” In the years following, largely as a result of the massive destruction and
loss of life occasioned by the American Civil War, the Crimean War, and the
Wars of German Unification, an international consensus to limit wars’ destruc-
tiveness developed and found its expression in the Hague Conventions of 1899
and 1907.

The theme of the peace conferences at The Hague centered on agreement
among participants that the right of belligerents in an armed conflict to choose
methods or means of warfare is not without limit, and that wanton destruction,
superfluous injury, and unnecessary suffering should be eliminated by regulation
from warfare. The Regulations Annexed to Hague Convention IV of 1907
Respecting the Laws and Customs of War on Land remain the centerpiece of
the two conferences.’ It is important to note that during the Nuremberg Trials
following World War II, the International Tribunal found the Annexed Regula-
tions to be “declaratory of the laws and customs of war,” and thus applicable to
all nations whether parties to Hague Convention IV or not.*

The Regulations annexed to Hague Convention IV have application to the
environmental depredation which occurred in the recent Gulf conflict. Article
22 provides that “the right of belligerents to adopt means of injuring the enemy
is not unlimited.” Article 23(g) specifies that it is especially forbidden “to destroy
or seize the enemy’s property, unless such destruction or seizure be imperatively
demanded by the necessities of war.” Article 46 adds that “private property
cannot be confiscated” by an occupying force, and Article 47 that “pillage is
formally forbidden.” To further clarify the restrictions upon occupying powers
such as Iraq during the conflict with Kuwait, Article 55 states that “the occupying
State shall be regarded only as administrator . . . of . . . real estate, forests and
agricultural estates belonging to the hostile State, and situated in the occupied
country. It must safeguard the capital of these properties, and administer them.
in accordance with the rules of usufruct.”> Had these strictures been observed


6 Readings on International Law

* These rules or norms are “legally binding.” That is, States comply with them.
because they are legally obligated to do so, not because they want to or are merely
morally obligated to do so.

* They apply to States—that is, sovereign, independent States. Traditionally
and historically these rules have not applied to individuals, or to corporations, or
any institutions other than States. (As we shall see, however, the categories of
persons and institutions that are governed by international law have been
expanding. In some areas, international law can now be said to apply to persons
and institutions as well as States.)

Where Did This System Originate? To quote a distinguished former holder of
the Stockton Chair of International Law at the Naval War College, Judge Manley
O. Hudson of the World Court, “Our system of international law has been
developed over a period of more than three centuries. It is distinctly Western
and European in origin. In tracing its growth, we usually refer to the Spanish
jurist-theologians of the sixteenth century, but we ascribe first place to Hugo
Grotius whose great book on ‘The Law of War and Peace’ was first published
in 1625. For a long period, international law was conceived to be not only
European, but also Christian, and its application was limited to Christian States.
In the course of the nineteenth century, however, we broke ourselves free from
such limitations, and in the words of the World Court, the principles of
international law ‘are in force between all independent nations’ and ‘apply
equally’ to all of them.”*

As we shall see, the fact that the roots of international law are European has
created problems within recent decades as newly emerging nations assert that
many principles of international law were proclaimed by European imperialist
powers primarily for the purpose of keeping the colonial States in their state of
subjugation.

What Are Its Modern Sources? Since the subjects of international law are States,
which are sovereign, independent, and equal, it is obvious that the law’s ultimate
source (practically as well as philosophically) must be the consent of the States
to be governed by it. This consent may be found either in treaties to which a
State is a party (that is, explicit consent) or in customary practices so general as to
have become in effect obligatory (and to which a State, as a member of the
community of nations, may therefore be said to have tacitly consented).

In addition to these two primary sources of international law, the Statute of
the International Court of Justice (itself a treaty) gives three secondary sources
to which the Court may turn to determine the law? They are, first, the general
principles of law recognized by civilized nations; second, judicial decision; and third,
the teachings of the most highly qualified publicists (scholars) of the various
nations. Let us examine each of these sources, primary and secondary, in order.




Rubin 23

“Victors are never tried for war crimes, therefore it is much more important to
win than to fight legally.” Aside from the deeper personal questions about the
sort of action that is a “war crime” and the sort of person who would knowingly
commit an atrocity, on the most superficial level the statement is untrue. Victors’
tribunals of the sort we set up in Nuremberg and Tokyo are the exception, not
the rule; the normal enforcement of the laws of war is by each country’s national
tribunals and through the discipline of its own forces. What might be called a
war crime in international correspondence is called murder or rape or some such
under the national criminal law applied to military personnel to discharge the
State’s international obligation to seek out and punish those individuals who
violate the laws and customs of war. Despite some notable lapses, the record of
the United States in this is pretty good; and all countries suffer lapses in wartime.
The famous trials are, in the main, show pieces for the edification of blood-thirsty
constituents and where, as in the case of the Nuremberg tribunal, some of the
decisions become landmarks of legal reasoning, they survive as politically influen-
tial ideas despite the weaknesses of the legal process that produced them. Where
history deals less kindly with the legal reasoning, they are suppressed in our
memories or reinterpreted to change the facts to fit our self-image.

In one sense, however, the assertion that victors are never tried is true. The
“new” Nuremberg crimes involving planning “aggressive” war seem weakly
based in tradition and legal logic despite the overblown rhetoric of the time.
Only one defendant at Nuremberg was convicted of these “crimes” alone,
Rudolph Hess; all the others convicted on this count were also convicted of
traditional war crimes or their peacetime equivalent, “Crimes against humanity.”
The victors’ tribunals may thus, to the degree they held to the traditional views
of law, be seen as actually a political necessity with regard to countries, Germany
and Japan, which had failed in their own international responsibility to seek out
and punish “ordinary” war criminals.'° Insofar as they took offin a new direction,
their precedent is unlikely to survive.

Another common misconception is that as long as the other side is the
aggressor there is no legal restraint in the law of self-defense. That is simply not
true. The laws and customs of war do not saddle the victims of war with moral
or any other responsibility for the acts of their governments; little Nazi or
Communist babies are not legitimate targets of military operations no matter
how vicious their governments. Indeed, it is one of the strange twists of mind
that international lawyers worry about when we read of “hostage” proposals to
destroy a Soviet city in retaliation for some act of the Soviet government
elsewhere. The laws and customs of war do not permit the bombardment of
undefended cities or the destruction of lives or property not related to military
necessity. Those laws and customs codify the experience and conscience of
mankind and to ignore that experience and conscience, or the documents, to


Gilchrist 143

Counter Arguments: While surveillance requirements of a cordon sanitaire
would be very high, it is not obvious that they would be reduced in the absence
of the cordon sanitaire, given the common context of high tensions. With a
tattletale in company, battle group surveillance efforts would be, if anything,
intensified in order to locate all missile platforms within range of the battle group,
which could be up to 300 miles. Surveillance requirements, since they would
actually be greater without a cordon sanitaire, argue in favor of declaring a cordon
sanitaire.

World Opinion. Argument Against Cordon Sanitaire: Established international
law, as previously noted, argues predominantly against the legality of a cordon
sanitaire. A U.S. declaration of a cordon sanitaire under the present system of
international law would probably be viewed negatively by most Third World
nations. It would also provide the Soviet Union valuable propaganda material
with which to sway world opinion in its favor during the crisis. Any NATO
nations with conflicting interests in the East-West crisis which might be per-
suaded to withhold their forces or support facilities in the event of hostilities
would be particularly valuable targets of such a propaganda campaign. Exploiting
any lack of political cohesiveness in the NATO Alliance would be a high priority
for the Soviets, particularly during a rising crisis, and a U.S. cordon sanitaire
widely viewed as illegal could provide the USSR with a very useful wedge with
which to split or weaken NATO solidarity.

Counter Arguments: This is probably the most convincing argument against
the feasibility of the concept of cordon sanitaire, At present, the political and
diplomatic risks involved in declaring a cordon sanitaire would very likely
dissuade the national command authorities from implementing the concept.
Even ifall military factors clearly favored establishing a cordon sanitaire in a given
crisis situation, the overriding political concern for maintaining the strongest
possible relations with allies and key Third World nations would probably
preclude its use.

Several steps could and should be taken now to win international acceptance
of the concept of cordon sanitaire as a legal defensive measure, in order to make
its use more viable in a crisis situation. First, the United States should present to
our NATO allies and other key friendly nations (at both the military and
diplomatic level) the advantages and legal arguments in favor of the cordon
sanitaire concept. The purpose would be to build support for the concept, or, at
the very least, assuage as much as possible any negative responses of friendly
nations. After achieving a semblance of allied unity, the United States, bolstered
by other nations favoring the concept, should press for formal legalization of
cordon sanitaire in truly international forums such as the United Nations and
Law of the Sea Conferences. Such a process would doubtless be long and,
perhaps, ultimately unsuccessful (at least in terms of formal recognition of cordon


230 Readings on International Law

24, Proclamation No. 2667, Policy of the United States With Respect to the Natural Resources of the Subsoil and
Sea Bed of the Continental Shelf, Code of Federal Regulations, Title 3, 67-68 (1943-48 Compilation).

25. 15 USS.T. 471; T.LAS. 5578; 499 U.N.T'S. 311.

26. International Court ofjustice, Reports 1969, p. 23, (Judgment of 20 February 1969; Fed. Rep. of Germany
». Denmark, Fed. Rep. of Germany v. Netherlands).

27. 1982 LOS Convention Art. 56.1(2). See also CHURCHILL & LOWE, THE LAW OF THE SEA 137-140
(1988).

28, See Proclamation 5928 of 27 December 1988, Territorial Sea of the United States of America, 54 Fed.
Reg. 777, (9 January 1989).

29, CHURCHILL & LOWE, supra n. 27 at 154-158,

30. Smith, supra n, 11 at 410.

31. Horiguchi, Big US Show of Strength, Pacific Defense Reporter 43 (February 1990); Air Force Magazine
81 (May 1990).

32. The Severodvinsk shipyard currently builds the DELTA-IV SSBN and OSCAR-II SSGN nuclear-
powered submarines. U.S. Nav. Inst. Proc. 126 (January 1991).

33. Ries, “Soviet Military Strategy and Northern Waters,” in ARCHER, THE SOVIET UNION AND
NORTHERN WATERS 91 (1988). The Northen Fleet headquarters at Severomorsk is currently thought to
be responsible for some sixty-four SSBNs and SSGNs and perhaps eighty more general-purpose submarines.
(International Institute for Strategic Studies 39 The Military Balance 1990-1991 (1990).

34, Petersen, Soviet Military Objectives in the Arctic Theater, Naval War College Review 3 (Autumn 1987),

35. Id. at 8, quoting Morozov & Krivinskiy, The Role of Straits in the Modem War, Morskoy sbornik [Naval
Digest] (August 1982).

36. See, e-g., Egan & Orr, Sea Control in the Arctic: A Soviet Perspective, 76 Naval War College Review
(Winter 1988).

37. Lindsey, Arctic Perspectives From Different NATO Viewpoints, NATO's Sixteen Nations, 54 (November
1988).

38, Larson, United States Interests in the Arctic Region, 2 Ocean Dev. & Int'l L. 170, 190.

39. Atkeson, Fighting Subs Under the Ice, U.S. Naval Institute Proceedings 83 (September 1987); SHARPE,
JANE'S FIGHTING SHIPS, 1990-91, 724 (1991).

40. Report of the Interagency Arctic Policy Group, Dept. of State Bulletin 89 (july 1983).

41. Public Law 98-373, sec. 102(a)(2).

42. BUTLER, NORTHEAST ARCTIC PASSAGE 71-75 (1978).

43, Treaty Doc. 101-22, p. vi.

44, Nelson, Maritime Boundary, Associated Press Dispatch, 19 June 1990,

45. Treaty Doc. 101-22, at v.

46, Id. at ii,

47. Hearings were scheduled to be held before the Committee on Foreign Relations, U.S. Senate, on 13,
June 1991, as this article went to press.


Rubin 43

The foregoing listing of rules of thumb for gut decisions is not exhaustive, but
I hope they hit the major points and will be useful to operating naval com-
manders.

Professor Rubin was serving as the Charles H. Stockton Professor of International Law at the
Naval War College when this article was first published.

Notes

1, T.LAS. 5200, 13 U.S.T. 2312, 450 U.N.TSS. 82.

2. U.N. Doc. A/CONF. 62/WP.10/Rev.3.

3, The Fisheries Conservation and Management Act of 1976, Pub. L, No. 94-265, The contrary advice
of the State Department may be studied in U.S. House of Reprentatives, Hearings before the Subcommittee
on Fisheries, Wildlife Conservation and the Environment, of the Committee on Merchant Marine and
Fisheries, 94th Cong., 1st Sess, 47-50, 86-154 (1975).

4, Jennings, The Caroline and MacLeod Case, 32 Am. J. Int’ L. 82 (1938).

5. MOORE, DIGEST OF INTERNATIONAL LAW 414 (1906).

6. For some historical instances in which the British labeled as “pirates” the military arm of some Malay
Sultanates which they were treating in other ways as States in the international legal order, see Rubin, The Use
of Piracy in Malayan Waters 1968, Grotian Society Papers at 111 (1970). In 1828 Commodore Sir Thomas
Staines burned or captured eleven “piratical vessels” in Grabusa Harbor (Ionian Islands, now part of Greece)
whose depredations had been committed while they flew the Ionian flag and had privateer licenses from the
British-protected government of the Ionian Island, Naval Records Society, Piracy in the Levant, 1827-8, Selected
fiom the Papers of Admiral Sir Edward Codrington, v. 72 K.C.B., at 42-52, 67-70, 246-248 (1934). The same
‘perception colored European treatment of the Barbary States in the early 19th century. See Méssner, The
Barbary Powers in Intemational Law, Grotian Society Papers 197 (1972).

7. On the hopelessly confusing codification of 1958 see Rubin, Is Piracy Mega? Am. J. Int'l L. 92 (1976).
Distressingly, the 1958 codification is repeated more or less verbatim in the current draft before UNCLOS III
cited above at n. 2.

8 The leading article on this is Leo Gross, States as Organs of Intemational Law and the Problem of
Autointerpretation, in LAW AND POLITICS IN THE WORLD COMMUNITY 59-88 (Lipsky ed. 1953).
Professor Gross first popularized the word “autointerpretation” to label this complex but fundamental
conception.

9. The Foreign Sovereign Immunities Act of 1976, 28 U.S. Code Secs. 1330, 1602 sq. provides that the
State itself shall not be immune from the jurisdiction of courts of the United States in any case in which the
action is based on “an act outside the territory of the United States in connection with a commercial activity
of the foreign state elsewhere and that act causes a direct effect in the United States” (Sec. 1605(a)(2)). It also
provides that a foreign State shall not be immune “in any case in which a suit in admiralty is brought to enforce
a maritime lien against a vessel or cargo of the foreign State, which maritime lien is based upon a commercial
activity of the foreign State” (Sec. 1605(b)). “Commercial activity” is defined in the act to include “a particular
commercial transaction” and says further that “The commercial character of an activity shall be determined by
reference to the nature of the . . . particular transaction or act, rather than by reference to its purpose.” (Sec.
1603(A)(4)). Legal questions about the constitutionality and precise meaning of these provisions are only now
beginning to be decided by American courts. Foreign countries enacting their equivalent statutes are not bound
by the American Constitution or American interpretation of the American statute,



McNeill 229

4, Agreement Between the United States of America and the Union of Soviet Republics Conceming
the Bering Straits Regional Commission, signed at Jackson Hole, Wyoming, September 23, 1989, ILL.M.
1429-1433 (November 1989). Agreement between the United States of America and the Union of Soviet
Socialist Republics conceming Mutual Visits by Inhabitants of the Bering Straits Region, signed at Jackson
Hole, Wyoming, September 23, 1989, LL.M. 1424-1428 (November 1989). Agreement Between the United
States of America and the Union of Soviet Socialist Republics Concerning Maritime Search and Resaue, signed
at Moscow, U.S.S.R., May 31, 1988 (unpublished).

5, Article Il states: “The western limit within which the territories and dominion conveyed, are contained,
passes through a point in Behring’s straits on the parallel of sixty-five degrees thirty minutes north latitude, at
its intersection by the meridian which passes midway between the islands of Krusenstern of Ignalook, and the
Island of Ratmanoff, or Noonarbook, and proceeds due north, without limitation, into the same Frozen ocean.
‘The same western limit, beginning at the same initial point, proceeds thence in a course nearly southwest,
through Behring's straits and Behring’s sea, so as to pass midway between the northwest point of the island of
St. Lawrence and the southeast point of Cape Choukotski, to the meridian of one hundred and seventy-two
degrees west longitude; thence, from the intersection of that meridian, in a southwesterly direction, so as to
pass midway between the island of Attou and the Copper island of the Kormandorski couplet or group in the
North Pacific ocean, to the meridian of one hundred and ninety-three degrees west longitude, so as to include
in the territory conveyed the whole of the Aleutian islands east of that meridian.” Convention Between the
United States of America and His Majesty the Emperor of all the Russias Concerning the Cession of Alaska,
signed at Washington, March 20, 1867. 11 BEVANS, TREATIES AND OTHER INTERNATIONAL AGREE-
MENTS OF THE UNITED STATES OF AMERICA 1776-1949 1216-1219 (1984).

6. 1 MOORE, A DIGEST OF INTERNATIONAL LAW 475 (1906).

7. The Alaska cession treaty is a classic example of this technique: Delimitation of Seaward Areas Under
National Jurisdiction, Ama J. Int'l L. 240 n.2 (April 1951).

8. Secretary of State Baker's Letter of Submittal, Treaty Doc. 101-22, at v. For further background on
this point, see Antinori, The Bering Sea: A Maritime Delimitation Dispute between the United States and the Soviet
Union, 1 Ocean Dev. & Int'l L. 24-26 (1987).

9. Treaty Doc. 101-22, at 5.

10, Id. at vi,

11, Smith, The Maritime Boundaries of the United States, The Geographic Review 405 (October 1981).

12, Associated Press, 9 August 1986; United Press International, 10 August 1986; Alaska Bear, (July-Sep-
tember 1986) (published by the USCG Seventeenth District).

13. Submitted to Congress pursuant to the requirements of the Magnuson Fishery Conservation and
Management Act, Public Law 94-265, Title Il, sec. 203; the agreement was approved by sec. 1 of Public Law
100-629, 7 November 1988, The agreement provides opportunities for fishermen from each country to conduct
fisheries activities on a reciprocal basis in the other country’s waters: see President Reagan’s Message to Congress
transmitting the U.S.-Soviet Fishery Agreement, Weekly Compilation of Presidential Documents, 846 (22 June
1988),

14. Holmes, Ship to Shore, Alaska Business Monthly 54 (March 1990).

15, See U.S, House of Representatives, Committee on Foreign Affairs, Subcommittees on Human Rights
and International Organizations and on International Economic Policy and Trade, 100th Cong., 2d Sess.,
Hearing on Oversight of the U.S. and U.S.S.R. Fisheries Agreement, 29 June 1988, pp. 1-2. See also Miles & Burke,
Pressures on the United Nations Convention on the Law of the Sea of 1982 Arising from New Fisheries Conflits: The
Problem of Straddling Stocks, 4 Ocean Dev. & Int'l. 343-357 (1989). The U.S. Government reportedly rejected
a call for unilateral extension of jurisdiction beyond two hundred nautical miles to permit management of such
stocks (Miles & Burke at 349).

16. MMS issues draft EIS for Navarin Area, Oil & Gas Journal 27 (18 June 1990).

17, MacLeod, Oil lease ofering in U.S.-Soviet disputed waters, United Press International (16 April 1984).

18, Id.

19, PRESCOTT, THE MARITIME POLITICAL BOUNDARIES OF THE WORLD 250 (1985). The current
estimate of the Minerals Mining Service, Department of the Interior, has been revised downward, indicating
that the basin’s resource potential is about 1.1 billion barrels. (Letter from Mr. George Carpenter, MMS, to
the author, 5 June 1991.)

20. Oil & Gas Journal 4 (16 July 1990).

21, Anderson, “No ordinary voyage—U.S., Soviet scientists working on pact to explore Arctic seas for new oif
deposits," Seattle Times, (1 July 1990), p. Et. Interest persists despite the fact that during winter most of the
Bering Sea shelf is ice-covered. Sharma, Geological Oceanography of the Bering Shelf, in HERMAN, MARINE
GEOLOGY AND OCEANOGRAPHY OF THE ARCTIC SEAS 141 (1974).

22, Oil & Gas Journal 26 (2 July 1990).

23, Amoco Production Co,, et al v, Village of Gambell, et al., 480 U.S. 531; 107 S. Ct. 1396; 94 L, Ed. 2d 542
(1987).



Robertson 9

control over the claim, and it may if it chooses refuse to assert the claim, or dismiss
it, or compromise it—all without the consent of the individual.

One of the contemporary developments in international law is a gradual
recognition that individuals themselves may, under certain circumstances, be
“subjects” of international law; that is, they may have rights (and obligations)
flowing directly from international law and not merely derivatively from their
State of nationality. This recognition probably began between the world wars
with the establishment of the International Labor Organization and its constitu-
tion, recognizing that working persons have certain minimum rights with respect
to working conditions. The concept received a major thrust forward at the end
of World War II with the adoption of the United Nations Charter and its
emphasis on the rights of human beings. At the same time, the acceptance of the
so-called Nuremberg principles recognized that individual Nazi leaders, not just
the Nazi State, were criminally responsible for war crimes, crimes against
humanity, and crimes against peace, and could be tried by an international
tribunal convened by the allied States. The crimes for which they were tried,
including atrocities against nationals of their own states, were considered to be
international crimes.

The ideas of individual rights under international law and of individual
obligations flowing from it have developed gradually. The principal impetus has
been the United Nations General Assembly—first in the Charter itself, then in
the Universal Declaration of Human Rights of 1948, then in a series of treaties
adopted over the past several decades. The latter included the Covenant on the
Prevention and Punishment of the Crime of Genocide, the International
Covenant on Civil and Political Rights, the International Covenant on
Economic, Social, and Cultural Rights, the International Convention on the
Elimination of All Forms of Racial Discriminations, as well as a number of
regional conventions of similar content and intent.

A corollary to this idea of individual rights under international law is the
elimination of the view that how a State treats its own nationals is not an
international concern but merely a domestic matter. As late as 1957, a preeminent
international law scholar could write chillingly in a leading English treatise on
international law that how a State treated its own nationals was a matter of
“discretion.” It is no longer possible to make this statement. A United States
court of appeals has held, for example, that the torture of a Paraguayan citizen
in Paraguay by an official of the Paraguayan government created a right of redress
in the courts of the United States under a statute allowing such actions for
violation of the “law of nations.”®

Another aspect of the expanding reach of international law is the extension
of international law to international bodies, such as the United Nations, the
International Civil Aviation Organization, the European Community, the In-
ternational Maritime Organization, and many others. For certain purposes these


130 Readings on International Law

character of its traffic, the adoption of special mandatory measures for the prevention of pollution from
vessels is required, coastal States, after appropriate consultations through the competent international
organization with any other States concemed, may for that area, direct 2 communication to the
competent international organization, submitting scientific and technical evidence in support... . If
the organization [agrees], the coastal State may, for that area, adopt laws and regulations for the
prevention, reduction and control of pollution from vessels, implementing such intemational rules and
standards or navigational practices as are made applicable through the competent international
organization for special areas. Such additional laws and regulations may relate to dishcarges or
navigational practices but shall not require foreign vessels to observe design, construction, manning or
equipment standards other than generally accepted international rules and standards. ..

48. The Draft LOS Convention would simply refer the provision of navigational aids and other general
safety and environmental issues connected with the use of straits for intemational navigation to cooperative
agreements among Coastal and user States. To date, this is how hydrographic surveys, navigational aids, and
compensation of pollution costs have been handled in the case of the Malacca Strait and other areas. Supra n.
2at 114, 77, 84. Art. 43 of the Draft Convention provides:

User States and States bordering a strait should by agreement cooperate:

@) In the establishment and maintenance in a strait of necessary navigation and safety aids or other

improvements in aid of intemational navigation; and

(®) For the prevention, reduction and control of pollution from ships.


76 Readings on International Law

The second question raised by the concept of transit passage is whether the
tules embodied in the RICNT are adequate to prevent confrontation over the
use of straits by naval powers. The problem here is that transit passage is, by
definition, transit through territorial seas within straits. As stated earlier, there is a
growing trend among coastal States to require warships to give advance notifica-
tion before entering their territorial seas. The RICNT is silent on the issue of
advance notification. Presumably, some coastal States may attempt to impose a
notification requirement for passage of military vessels through territorial seas
within international straits. Such a requirement would clearly be objectionable
to the naval powers; it would defeat the purpose of submerged passage for
submarines and it could also result in the disclosure of sensitive deployment data
to unfriendly forces. Perhaps more importantly, advance notification implies a
measure of control by the coastal State, inasmuch as notification makes little sense
except as a form of requesting permission, and an acceptance of the implication
could lead to an attempted exercise of actual control by the coastal State. Despite
the RICNT, then, the problem of advance notification is lurking in the
background, and it threatens to become a source of disagreement whatever the
outcome of UNCLOS III.

Economic Zones. In addition to the general problem of passage through straits,
the new law of the sea regime could witness disputes over foreign military
activities within a nation’s 200-mile economic zone. Seventy-six nations, includ-
ing the United States and the Soviet Union, have announced a 200-mile
economic zone or a 200-mile fishing zone, and the coastal States that have not
yet proclaimed a 200-mile zone will probably do so if UNCLOS III fails to
produce a convention.'”

At one time there was considerable disagreement over whether coastal States
would attempt to aggrandize their limited jurisdiction in the economic zone into
claims of full sovereignty. This so-called “creeping jurisdiction” is now a
generally accepted proposition among writers on ocean affairs,!® although the
nature and timing of the “creep” are too uncertain to permit useful speculation.
In the abstract, it is possible to describe three factors that could lead to claims of
sovereignty over economic zones. First, economic advantages tend to generate
protectionist demands, leading ultimately to the conclusion that the whole range
of direct and indirect threats can be adequately dealt with only if the sovereign
has the broadest possible discretionary power. Second, as coastal States develop
their navies to provide enforcement capabilities, there may be a growing
presumption that control is proof of sovereignty. And third, claims of sovereignty
may be perceived as a convenient vehicle by which developing States can
overcome political frustration and a sense of impotence in international affairs.

Whatever its origin, the phenomenon of creeping jurisdiction is likely to
occur, although it will probably manifest itself differently in various parts of the


Index 585

Bahrain
boundary agreement with Iran, 87
Saudi Arabia-Bahrain Agreement of 22 February 1958, 87
Baker, Secretary of State James, 219, 228
Baldwin, David, 178
Baltic Sea, 101-102, 267
Baralong deception of German U-boat, 497
Barbary pirates, 357-358
Barents Sea, 99-100, 225, 226
Baxter, Judge Richard R., 3, 5
Beckwith, Colonel Charles, 422
Beirut
bombing of U.S. Embassy and annex, 456
bombing of U.S. Marine headquarters, 373, 451, 454
Belgian Law of 1833, nonextradition provisions, 379
Belgium, action in the Congo (Stanleyville), 560
Bell, J. Bowyer, 408
Belligerent states
rights and obligations under Convention of the Law of the Sea, 276-277. See also Armed conflict at
sea, rights of belligerent states; Law of armed conflict at sea; Warships.
Bering Sea, 226
“doughnut hole”, 221-222, 227-228
joint Soviet-U.S, ventures, 223
‘Navarin Basin, 223,
Soviet-U.S. overlapping claims, 225,
Bering Straits, Joint Regional Commission for the Bering Straits, 219
Berlinguer, Enrico, 377
Bemadotte, Folke, 531
Bemadotte, Jean Baptiste (Karl XIV Johan, King of Sweden), 526
Bilateral agreements delimiting jurisdiction, 87, 89
Biological warfare, 506-609, See also Biological/biochemical weapons,
controllability of weapons, 506-507
covert use of biological weapons, 508-509, 513
defense, 512-514
incapacitants, 508
nuclear deterrence and, 507
overt strategic use, 507
covert tactical use, 507-508
surveillance challenges, 510, 513
US. policy, 507, 509-510, 513, 514-515
Biological and Toxin Weapons Convention of 1972, 509
verification challenges, 510, 512, 513,
Biological/biochemical weapons
acquisition by Middle Eastern States, 503
anthrax, 504
Arab call for ban, 512
as stealth weapons, 516-517
availability, 429-430, 501, 502
botulinum toxin, 430
Chinese policy on inspections and verification, 512
ease of manuficture, 501, 502
fisture of military weapons, 515-516
genetic engineering, 501, 502, 505, 506, 507-509
incapacitants, 508
Indian policy on inspections and verification, 512



472 Readings on International Law

While the concept may be simple, further definition is elusive. Concerted
efforts at definition have been made by the Secretary-General of the United
Nations and the ICRC during this decade without success. Considerations have
hinged upon whether a weapon causes unnecessary suffering or superfluous
injury, whether the weapon is indiscriminate in effect, or whether the weapon
kills through treachery. Studies to date have concentrated on napalm and other
incendiary weapons, small caliber projectiles, and mines and boobytraps in an
effort to identify “illegal” weapons. Those studies have found, however, that few
weapons are illegal per se, and that questions of illegality are more inclined to
arise in a particular use of a weapon than design intent. Moreover, there is
considerable difference between an arbitrary declaration by a social scientist or
movie actress that a weapon is “illegal,” “immoral,” or causes unnecessary
suffering, the establishment of empirically proved criteria by which to measure
a weapon, and scientific support for an allegation against a particular weapon.
Most certainly, efficiency in its task is not tantamount to illegality. To the
contrary, the Geneva Protocol of 1925 banning poisonous gas was adopted in
large measure because of the military inefficiency of gas.

Three conferences of government weapons experts sponsored by the ICRC
in conjunction with the 1974, 1975, and 1976 sessions of the Diplomatic
Conference generally were little more than battles of rhetoric between the
“haves” and the “have nots,” with at least one developing nation changing its
position over the course of the sessions once it had acquired its own arsenal of
the weapons it previously had condemned. Other ironies surrounded the
negotiations. Sweden was in the forefront of the battle to condemn napalm while
simultaneously being a world leader in its manufacture and export. On more
than one occasion the intensity of its delegation’s obligations to a particular
‘weapon was directly proportional to the capabilities of its arms industry to
develop and market its version of that weapon. The Soviet Union, long a
supporter of the arguments of the underdeveloped nations and liberation move-
ments, found its position as an arms developer outweighed the “humanitarian”
arguments of those States opposing certain weapons, ultimately siding with the
United States in asserting that the Diplomatic Conference was not the proper
forum for consideration of the weapons issue.

Failing to achieve any new definition, Protocol I (Article 36) limits itself to
the requirement that new weapons be reviewed to ensure their legality, a
requirement the United States placed into effect by DOD Directive 5500.15 on
16 October 1974. However, Resolution 22 of the Diplomatic Conference
recommends the convening of a conference in 1979 to endeavor to reach
agreement regarding the issues raised by the previous conferences of government
experts.


306 Readings on International Law

39. Church v. Hubbart, 2 Cranch 187, 1 L. Ed. 249 (1804), and other cases cited in JESSUP, supra n. 12,
at 80.
40. Supra n. 12, at 88-92,
Al, Id. at 91.
42, Fora detailed discussion of the controversies surrounding the United States Prohibition-Era “hovering
acts,” see JESSUP, supra n. 12, at 241-258.

43, Territorial Sea, Covention, supra n. 34, Article 24,

44, See FULTON, supra n. 11, Chapter V passim; JESSUP, supra n, 12, passins; O'CONNELL, supra n. 28,
at 155.

45. Supra n. 12, at 20; FULTON, supra n. 11, Chapter V, passin.

46. FULTON, supra n. 11, at 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 1945, 10 U.S. Federal Register, at 12303,
U.S. Code of Federal Regulations, 1943-1948 Comp., v. 3, at 67 (1945), reprinted in 4 WHITEMAN, DIGEST
OF INTERNATIONAL LAW 756-757 (1965) (hereinafter cited as WHITEMAN).

48. White House Press Release of 30 September 1945, reprinted in U.S. Department of State Bulletin,
y. XIIL, No. 327, pp. 484-485 (1945), reproduced in WHITEMAN, supra n. 47, at 757-758,

49. Report of the International Law Commission covering the work ofits eighth session, 23 April-4 July
1956, supra n. 33, at 256.

50. Territorial Sea Convention, supra n. 34.

51. Res. 1307 (XIII) (10 December 1958).

52. See WHITEMAN, supra n. 47, at 119-137.

53. See discussion in text supra, at nn. 38-43.

54. Il YEARBOOK OF THE INTERNATIONAL LAW COMMISSION (1956), supra n. 33, at 294-295,
(emphasis supplied).

55. Id.

56. Convention on the Continental Shelf, 29 April 1958, UN Treaty Series, v. 499, at 311, U.S.T.,
at 471, USS, T.LAS, No. 5578, Article 2.

57. Id. article 1.

58. Fisheries Case (United Kingdom v. Nonvay), 1951 I.C,J. Reports 116 (Merit).

59. See examples discussed in Reisman, Straight Baselines in Intemational Law: A Call for Reconsideration,
Proceedings of the 82nd Annual Meeting (1988) of the American Society of International Law at 260 (1990), see also,
Office of Ocean Affairs, U.S. Department of State, Limits in the Seas No, 112: United States Responses to Excessive
National Maritime Claims (12 March 1992).

60. Restatement (Third), supra n. 5. This opinion is also reflected in the joint statement of the U.S. and
USSS.R. governments at the 1989 Jackson Hole Summit Conference which included the statement that the
two governments were guided by the provisions of the 1982 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, 25-26 (December 1989),

61. U.S. Department of the Navy, Office of the Chief of Naval Operations, Law of Naval Warfare (NWIP
10-2) (Washington: U.S. Government Printing Office, 1955), section 4302, (NWIP 10-2 is the predecessor
manual to NWP-9 and is hereinafter cited as NWIP 10-2). 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 harmed by such acts may take armed selFhelp
measures, O'CONNELL, supra n. 28, at 1117; LAUTERPACHT, OPPENHEIM’S INTERNATIONAL LAW 695
(7th ed. 1952), (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 para. 7.3.4.2 (NWP-9 (Rev. A))
(1989), (hereinafter cited as NWP-9).

62, LAUTERPACHT, supra n. 61, 673; WHITEMAN, supra n, 47, at 178 and sources cited therein. The
principle is codified in article 9 of Convention (XIII) Concerning the Rights and Duties of Neutral Powers
in Naval War, 18 October 1907, 36 Stat. 2415 (U.S.), 100 British & Foreign State Papers (1906-1907), 448-454
(UX), reprinted at 2 Am. J. Int'l L. 202 (Supp), (cited hereinafter as Hague XIII),

63. Hague XIII, supra n, 62.

64. Schindler, Commentary fon Hague Convention XIII], in RONZITTI, THE LAW OF NAVAL
‘WARFARE: A COLLECTION OF AGREEMENTS AND DOCUMENTS WITH COMMENTARIES 211, at 215,
221 (1988).

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 LAUTERPACHT, supra n. 61, 746 and sources cited
therein; TUCKER, 50 U.S. NAVAL WAR COLLEGE INTERNATIONAL LAW STUDIES, THE LAW OF WAR
AND NEUTRALITY AT SEA 219 note 52 (1957), (cited hereinafter as TUCKER).

7. 15,


Robertson 269

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 all 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 armed 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 coastal States
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.*” 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).*® Although
the Proclamation carefully delimited the extent of the claim and explicitly
affirmed 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 uniformity 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 uniform as
regards the delimitation of the territorial sea.

2. The Commission considers that international law does not permit an exten-
sion of the territorial sea beyond twelve miles,

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


458 Readings on International Law

contemporary language of defense economics, they wage countervalue rather
than counterforce warfare.

Why is this important? It is important because the only credible response to
terrorism is deterrence. There must be an assured, effective reaction that imposes
unacceptable damage on the terrorist and those who make possible their activities.
However, this reaction must counter the terrorists’ strategy within the parameters
of international law, and more specifically the law of armed conflict. Those who
suggest otherwise neither understand the inherent flexibility of international law
nor the cost of violating that law.!?

International law has long recognized the need for flexible application. The
underlying tenet of that law, the prohibition against the use of force, has as its
principal exception the right of response in self-defense. Self-defense, however,
is an inherent right, shaped by custom and subject to customary interpretation.
Its codification within Article 51 of the U.N. Charter recognizes this inherent
quality: “Nothing in the present Charter shall impair the inherent right of
individual or collective self-defense if an armed attack occurs against a Member
of the United Nations... .”

According to some legal scholars, though, responding coercion cannot be
justified under Article 51 unless the force directed against the “political inde-
pendence” of another State has as its purpose “the permanent subjugation of that
State to domination." This interpretation envisions a broad-based and far-
reaching attack; but arguably an attack against just a small segment of a nation’s
governmental, military or social apparatus is legally analogous to an attack against
the whole. If U.S. citizens, diplomats or military personnel are attacked or held
captive in an attempt to induce a change in American policy, the political
independence of our nation has clearly been subjected to attack.

The final clause of Article 2(4) of the U.N. Charter, which forbids the threat
or use of force “in any other manner inconsistent with the Purposes of the Untied
Nations,” supports this interpretation. The principles codified in the Charter
have as their primary purpose to “bring about by peaceful means, and in
conformity with the principles of justice and international law, adjustment or
settlement of international disputes or situations which might lead to a breach of
the peace.”* The terrorist seizure of, or attack on U.S. citizens or instrumen-
talities, are certainly uses of force “in a manner inconsistent” with the Charter.
Article 2(4) and Article 51, its exception, must be read together in a way that
will give them both reasonable meaning. As Professor Myres McDougal explains:
“Article 2(4) refers to both the threat and use of force and commits the Members
to refrain from ‘threat or use of force against the territorial integrity of political
independence of any State, or in any other manner inconsistent with the Purposes
of the Untied Nations’; the customary right of defense, as limited by the
requirements of necessity and proportionality, can scarcely be regarded as
inconsistent with the purpose of the United Nations, and a decent respect for


Farrell 415

convened, call into federal service such of the militia of the other States, in the
number requested by that State, and use such of the Armed Forces, as he considers
necessary to suppress the insurrection."®

‘Whenever the President considers that unlawful obstructions, combinations, or
assemblages, or rebellion against the authority of the United States, make it
impracticable to enforce the laws of the United States in any State or Territory by
the ordinary course of judicial proceedings, he may call into federal service such
of the militia of any State, and use such of the Armed Forces, as he considers
necessary to enforce those laws or to suppress the rebellion.'®

The President, by using the militia or the Armed Forces, or both, or by any
other means, shall take such measures as he considers necessary to suppress, in a
State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it-

(1) so hinders the execution of the laws of that State, and of the United States
within the State, that any part or class of its people is deprived of a right, privilege,
immunity, or protection named in the Constitution and secured by law, and the
constituted authorities of that State are unable, fail, or refuse to protect that right,
privilege, or immunity, or to give that protection; or
(2) opposes or obstructs the execution of the laws of the United States or

impedes the course of justice under those laws. In any situation covered by clause
(1), the State shall be considered to have denied the equal protection of the laws
secured by the Constitution.”

Although the Posse Comitatus Act prevents the use of federal troops to enforce
federal or state laws without constitutional or statutory authorization, it does not
forbid the loan of military material and equipment to federal law enforcement
agencies in connection with a continuing civil disorder.

In United States vs. Red Feather (one of the “Wounded Knee” cases)'® the court
tuled that the loan of military equipment was not a violation of the Act. The
court went one step further, outlining the differences between the use of federal
troops in an active role of executing the laws and the passive role in which they
would indirectly aid civilian law enforcement by saying:

Based on the clear intent of Congress, this court holds that the clause “to execute
the laws,” contained in 18 U.S.C. 1385 makes unlawful the use of federal military
troops in an active role of direct law enforcement by civil law enforcement officers.
Activities which constitute an active role in direct law enforcement are: arrest;
seizure of evidence; search of a person; search of crime; interviewing witnesses;
pursuit of an escaped civilian prisoner; search of an area for a suspect and other
like activities ....

However,

Activities which constitute a passive role which might indirectly aid law enforce-
ment are: mere presence of military personnel under orders to report on the
necessity for military intervention; preparation of contingency plans to be used if
military intervention is ordered; advice or recommendations given to civilian law
enforcement officers by military personnel on tactics or logistics; presence of


412 Readings on International Law

only was the war itself opposed by many, but the basic legitimacy of military
service was brought into question. Coupled with the antiwar feeling were the
revelations of “atrocities” and “ecological devastation” in Vietnam. Adding to
these woes were the reports of widespread drug abuse, corruption in the
operation of clubs, cost overruns and military spying on civilian political activists.

The contrast in ideological and public evaluation of the American military
establishment over three wars is revealing. In World War II, the American military
‘was almost universally held in high esteem in a popularly supported war. Conser-
vative and isolationist sectors of American public opinion were quick to fall in line
behind a liberal and interventionist national leadership. In the wake of the Korean
war, defamatory images of the American serviceman were propagated by right-
wing spokesmen. Liberal commentators, on the other hand, generally defended
the qualities of the American armed forces. In the war in Southeast Asia a still
different image emerged. Although initially an outcome ofa liberal Administration,
the war came to be primarily defended by political conservatives, while the severest
attacks on both the behavior of American soldiers and the military establishment
emanated from the left.”

As the above would indicate, the domestic employment of military force could
well depend upon society’s view of the military as an acceptable institution. A
President would be loathe to call in the military to quell a domestic incident
when the presence of men and women in uniform could greatly exacerbate the
existing turmoil.

Coupled with the concern for the perceptual considerations of the military as
an institution is yet another serious aspect. Having once accepted the military as
avalid (needed) part of society, the role it would be allowed to play in maintaining
domestic security had to be examined. Many of the founding fathers considered
that the arbitrary use of military force by the British was a factor contributing to
the Revolution. By the separation of powers and the use of constitutional checks
and balances, the control of the military was divided between the Federal
Government and the states on the one hand and between branches within the
Government on the other.> While many people have viewed these constitutional
efforts as attempts to prevent the military from gaining too much political control,
at least one author takes a different and very interesting view:

The Framers’ concept of civilian control was to control the uses to which civilians
might put military force rather than to control the military themselves. They were
more aftaid of military power in the hands of political officials than of political
power in the hands of military officers.*

If there was a struggle for control of the military, it was not between the armed
forces and civilians. Rather, it was a struggle between the Congress and the


544 Readings on International Law

points out that in that period the victor’s treatment of the vanquished enemy
might have been determined by the identity of the vanquished enemy; idolaters
were not to be spared, as their evil ways might contaminate the Israelites.>

In ancient Greece, the formal rule was, in the words of Herodotus, that “the
victors come not off without great harm; and of the vanquished I say not so much.
as a word, for they are utterly destroyed.”® In practice, however, more often than
not,the vanquished, rather than being put to death, were made slaves, exchanged,
or enrolled in the victorious army.’ In the later Greco-Roman era a primitive
law of warfare began to emerge, but it was applicable only to war between
civilized States, not to uncivilized barbarians. Prisoners’ lives were spared, but
they were usually made slaves.®

The Middle Ages were a period of sharp contrast. This was the period of
knighthood and the emergence of the chivalric code, but it was also a time of
cruel barbarity. Under chivalry, the practice of enslaving prisoners gradually
disappeared, at least within Christendom, but captured soldiers wére routinely
held for ransom.” On the other hand, some wars were fought to the death with
no quarter given;’° the signal for such a battle was a red flag or banner. ina
city taken by storm after siege, there was unlimited license to rape, kill, loot, and
pillage. Only churches and churchmen were spared," 2 The notion of Iése majesté
‘was used to justify horrible massacres of vanquished foes. In addition, as war
within Christendom became transformed from what had been somewhat in the
nature of tourneys conducted by aristocrats to “people’s” wars, chivalric behavior
began to have very little influence. According to Philippe Contamine, the
“Flemish communes systematically massacred the vanquished and refused the
practice of ransoms, seen by them as cowardly and likely to lead to deception.
Inevitably in battles where they faced the communes, nobles adopted a similar
attitude. .. . One might link to this style of warfare, devoid of all courtesy, the
warlike customs of the Irish and Swiss. The Kriegsordnung of Lucerne in 1499
stipulated that no prisoners were to be taken; all the enemy should be put to
death. That of Zurich in 1444 thought it necessary to prohibit combatants from
tearing out the hearts of their dead enemies and cutting up their bodies.3

Even after the Middle Ages gave way to the Age of Discovery in the fifteenth
and sixteenth centuries, Hugo Grotius, in his seminal treatise The Rights of War
and Peace, published in 1625, expressed the view that the law of nations did not
prohibit putting to death all subjects of the enemy, even women and children.*
“Nor,” he added, “did those who offered to surrender always experience the
lenity and mercy, which they sought thereby.”"5 Writing a century and a quarter
later, eminent publicists Emmerich de Vattel and Christian Wolff took a different
view. Vattel wrote, “As soon as an enemy submits and hands over his arms we
have no longer the right to take away his life. Hence we must give quarter to
those who lay down their arms, and when besieging a town we must never refuse
to spare the lives of a garrison which offers to surrender.”


Farrell 423

The officer who served as the Deputy Commander of the Air Force com-
ponent was “just prior to (mission) execution” designated “on scene” com-
mander at the desert site:

.-- implying a command, control and communications (C’) capability to exercise
command. This was not fully provided. A general officer served primarily as a
consultant on Iran from late November 1979 to mid-February 1980. He spent
considerable time during this period at the western training site in the western
United States monitoring helicopter and other air training, On 12 April 1980, he
was designated the Deputy COMJTF.*

Additionally, the Holloway group faulted the operation’s security as being too
stringent, causing excessive compartmentalization and planning review by those
who had actually drawn up the original plans.‘” The available existing intelligence
assets were seen as being deficiently managed and integrated.*® Training activity
was faulted as being too decentralized,” and lacking overall management.”
Communications between the helicopters and transport aircraft at the desert
rendezvous were all seen as deficient in some respects.°! Finally, the size of the
helicopter force and the accuracy of weather data were criticized by the review
group.”
On the positive side the report noted:

We are, nevertheless, apprehensive that the critical tone of our discussion could
be misinterpreted as an indictment of the able and brave men who planned and
executed this operation. We encountered not a shred of evidence of culpable
neglect or incompetence.

The facts are that, in the conduct of this review, we have seen infinitely more
to be proud of than to complain about. The American servicemen who participated
in this mission—the planner, crewman, or trooper—deserved to have a successful
outcome. It was the ability, dedication, and enthusiasm of these people who made
what everyone thought was an impossibility into what should have been a success.

Finally, we were often reminded that only the United States military, alone in
the world, had the ability to accomplish what the United States planned to do. It
was risky and we knew it, but it had a good chance of success and America had
the courage to try.

In the late summer of 1980 the Department of Defense announced that it
would establish a counterterrorist task force with specialists from the Army, Navy,
Air Force and Marines. The unit is to be responsible for gathering information
concerning the tactics and operations from other special groups such as the British
SAS and the West German G.S.G.-9. Should an incident take place the unit
would allegedly put together a strike force from the military services according
to the needs of a specific mission.* The core of this counterterror capability is
said to be the “few hundred commandos” of the Army’s Delta Team headquarted
at Fort Bragg, North Carolina.®>




30 Readings on International Law

the United States to appear to oppose our Latin American neighbors or our
British allies in this was unnecessary and destabilizing to both NATO and Latin
America. Thus a narrow legal memorandum that did not focus on the entire
legal order was distorting. A policy maker would have been better off knowing
no law than that isolated bit of it.

The importance ofa full legal evaluation of the entire situation was also evident
in considering the degree of support the United States should have been giving
to Great Britain. It follows from the analysis above that the British response to
the Argentine taking of the Falkland/Malvinas Islands was a response to an illegal
Argentine action that directly affected British interests. The British undoubtedly
had “standing” to act; they were not acting as world policemen to support the
law, as we would have been if we were to have acted directly against Argentina,
but as a party injured by the Argentine action. The British position was not one
of “self-defense.” To call it self-defense implies British sovereignty in the Islands;
otherwise the Islands could not be part of the “self” the British are defending.
“Self-defense” also assumed an immediacy that became less and less evident as
time went on.'8

The British rationale, carefully preserved in Prime Minister Thatcher’s public
statements, was the need of states with the legal standing to act to preserve the
system. That was the American rationale in Korea in 1950 also. We were bound
to support the British action because we were and are bound to support the
integrity of the system. Thus, to the degree the British action exceeded what is
justifiable in support of the collective security system set up in the Charter, our
support for it must have been very questionable. It could be given as a matter of
policy, but should not have been given unless its legal implications were
understood.

It is this restriction on British legal rights that made the British sinking of the
Argentine cruiser General Belgrano early in May outside the zone proclaimed by
the British as the “exclusion” zone for Argentine ships so significant. Despite
British arguments that they could have made the zone larger, that the declaration
did not limit British rights to strike at Argentine vessels elsewhere, and that the
sinking was necessary in self-defense of the British forces within the zone, the
expansion of the zone of combat beyond what was clearly necessary to counter
only the Argentine taking of the Falkland/Malvinas Islands undercut the world
order rationale for the British action. These doubts were reflected in the world’s
reaction to the British sinking; the pulling back of the European Economic
Community partners from further support of the British embargo of Argentina
and the estrangement of those Latin American countries that might have more
vigorously supported the system if convinced that it was the system they were
supporting and not British colonial interests.

To consider these important hesitations merely a triumph of petty self-interest
by European and Latin American States over the interests of stability is to ignore


608 Index

NATO strategy of flexible response, 567-569
nuclear denial, 568
tactical, 21
terrorist threats, 427
theater-assigned strategic systems, 568
theater-deployed missiles, 571-572
Nuremberg Trials, 332-333, 534

ie)

O'Connell, D. P., 47, 50, 50-51, 181, 336-337, 339-340
Oakley, Robert B., 354
OAS Convention to Prevent and Punish Acts of Terrorism Taking the Form of Crimes Against
Persons and Related Extortion that Are of International Significance, 379-380, 403, 418
Ocean Management, Inc., 153
Ocean Minerals Co., 153
Ocean Mining Associates, 153
OfBhore drilling structures, 149-150
as terrorist targets, 433-436
European protections for, 435
legal jurisdiction over, 438-440, 442-444. See also Jurisdiction; Maritime zone delimitations,
national regulations, 442-444
numbers operating and production, 434-435
Oil production
multinational investments in offthore drilling, 435
offshore drilling structures, 433-435, 445. See also Seabed.
Oil tankers
Ultra Large Crude Carriers (ULCC), 125
Very Large Crude Carriers(VLCC), 122, 124-125
Okun, Herbert S., 576
Oman, boundary agreement with Iran, 87
Organization of African Unity, 396
Organization of American States (OAS)
Charter articles, 371-372
collective political action, 36
collective self-defense, 136
Convention to Prevent and Punish the Acts of Terrorism Taking the Form of Crimes Against
Persons and Related Extortion that Are of International Significance, 379-380, 403, 418
opposition to U.S. Operation Just Cause, 367, 371
provisions for self-defense, 333
quarantine of Cuba, 42
role in the Falklands/Malvinas Islands dispute, 28, 29
Organization of Eastern Caribbean States, 322-323, 335,
Osgood, Robert E., 183-184
Oswego Merchant, 122
Overflight. Sce Passage.
‘Oxman, Professor Bernard H., 264, 286

Pp

Pacific Economic Cooperation Committee (PECC), 240
Pacific Ocean, boundary between Soviet Union and United States, 219-221
Packer, Rear Admiral S. H., 245
Palestinian Liberation Organization (PLO), 339, 409, 410, 452, 453
Palme, Olof, 531
Panama
commitment to 1953 American Declaration on the Rights and Duties of Man, 372


Richardson 71

floor unless the seabed-mining regime that emerges from this Conference is
capable of giving reasonable confidence to investors. Our task in Geneva will be
to get agreement on the basis of the understanding that that confidence is a
precondition for breathing life into the concept of the common heritage.

Do you feel that if we moved ahead to exploit unilaterally the seabed resources under
the guarantee of the U.S. Government that that would perhaps spur an agreement among
the Group of 77 for a more universal enterprise for the exploitation of those resources?

It is hard to tell what effect the final passage of seabed-mining legislation by
the United States would have on the Conference. There are those who warn
that it would have a highly destructive effect and trigger the assertion of unilateral
national claims to the seabed itself. On the other hand, the US. legislation now
pending, which almost passed the Congress in 1978 only to be hung up at the
Jast moment in the Senate, is designed to be consistent with the general approach
of the ICNT and provides for the setting aside of payments by the mining
companies recognizing the legitimacy of the claims of other countries to share
in the proceeds. The legislation would be superseded by a treaty, and because
seabed mining cannot now get underway on a commercial scale before 1985 at
the earliest, that would allow a treaty to be negotiated well before that date. So
far as the effect on the negotiations is concerned, I think that the awareness that
seabed mining must be regarded as inevitable (ifnot under a universal convention,
at least under reciprocal national legislation) has served to make the participants
in the Conference aware that time is not necessarily on their side. And I think
this has contributed to the sense of urgency that now exists.

Enforcement of these laws seems to be a major problem. To what extent does the role
of national navies enter in your discussion as far as enforcing certain laws that you are
proposing?

I think the role of navies needs to be looked at primarily in terms of the exercise
of nationally claimed rights, including rights that the countries to which those
navies belong believe to rest upon a solid foundation of international law. In the
absence of treaty (and even under the treaty) it is also important to deliver clear
and unmistakable protests against national claims inconsistent with international
law, whether that law belongs to the body of customary international law or has
been made part of a universal convention. Such protests must be backed up by
the consistent exercise of the internationally recognized right, and in a situation
in which the exercise of a right is subject to challenge, there would need to be
the readiness to go forward nevertheless. This would necessitate appropriate
preparation to meet the possibility of any such challenges. Beyond that, of course,
there is the potential for bringing to bear various forms of international proceedings


522 Readings on International Law

European Economic Communit .” (Testimony of Alvaro Aviles before the Senate Subcommittee on
Security and Terrorism, quoted in Ehrenfeld, Narco-Terrorism and the Cuban Connection, Strategic Review 60
(Gummer 1988).

‘Communist competition with the West is grounded on a belief in the inexorable and favorable march of
history. Accordingly, patience becomes an essential element of the all-assets struggle, Nudge and chip and
nibble away, but stop short of provoking a cataclysmic showdown. Given that frame of reference, why should
adversaties engage in formal war if, at relatively little cost, they can stimulate efforts to eviscerate our society
from within?

Several authors note that, historically, both the Soviet Union and the People’s Republic of China have not
been reluctant to use drugs as a weapon. (See Douglass, supra n. 11 at 119-126; and Buckelew, The Secret World
of Narcoterrorism, Security Management 69-73 (September 1987). In his article Buckelew, a former senior U.S.
intelligence officer who served in East Asia and Latin America, traces narcotics “warfare” against the West over
2 40-year period, Phase one began in 1949 when Mao Tse-tung directed a flow of narcotics to U.S. occupation
troops in Japan and later to American forces in Korea. Phase two started in the early 1960s when, impressed
by Chinese success in using what Mao referred to as “indigenous chemical warfare,” the Soviets decided to
mount a similar—but much broader—campaign against the West. In late 1962, following the rebuff of the
Cuban Missile Crisis, Nikita Krushchev set into motion a large-scale operation to infiltrate narcotics into major
‘Western nations. His declared intent was “to accelerate the process of demoralization of bourgeois society” by
weakening American youth (DOUGLASS, supra n. 11 at 121).

‘Also targeted, as an extension of the overall strategy, were members of the armed forces. The cheap and
plentifal supply of drugs available to service members in Vietnam and Europe during the late 1960s and 1970s
was no accident. As described by Buckelew: “in the late 1960s, the major drug [supplied by China to American
troops in Viemam] was exceptionally potent marijuana dipped in opium to create addiction. Later, nearly pure
heroin arrived in the vicinity of US bases in Vietnam, at or below cost (eighty cents a gram), while the supply
of marijuana and other drugs dried up. The objective was clearly to stimulate heroin use by Ametican troops”
(upra n. 11 at 71).

During the last decade the U.S. Military has made substantial progress to bring its internal drug problem
under control. The growing travail of American society as a whole, however, suggests that at least one prong
of the original Sino-Soviet drug initiative continues to thrive as a self-sustaining weapon that pays for itself.
And there may yet be worse to come. Douglass notes that the Soviet bloc has developed at least a half-dozen
new “recreational” drugs which are deemed, on the basis of tests on prisoners, to be even more addictive and
debilitating than cocaine. For now, the Soviets have decided not to ‘‘market” these new drugs but instead to
hold them in reserve for the right opportunity (Supra n. 11 at 55).

59. Quoted in Thatcher, Disease as an Agent of War, Christian Science Monitor, 15 December 1988, p.

BB.

60. Since 1945, nations possessing nuclear weapons have been careful not to engage in direct wars with
each other. Most of the fighting has been done via proxies. But now that some of the proxy States are also
beginning to acquire weapons of mass destruction, this technique might eventually become too risky as well.
‘Twenty years from now, if current proliferation trends hold up, the world could easily have 50 nations with
significant nuclear, chemical and/or biological capabilities. In such an environment, as weapons of mass
destruction continue to disperse throughout the globe, hot wars will be a tricky business; and even the
euphemistically named low-intensity conflicts may become carefully modulated duels with more political than
military content.

To follow this speculative path one step further, if the world becomes increasingly locked up militarily,
then economic competition will be ascendant, and “warfare” might shift from overt to more covert forms.
‘What could eventually emerge as a darker side to this economic struggle is an intensified campaign of “dirty
tricks"”"—a stream of soft weapons designed to sap an adversary's vitality: computer viruses, designer drugs,
insect pests and, tapping the new potential of bioweapons, an array of enfeebling agricultural, animal and human
disorders.

To the extent possible, this cool war would be waged out of the public eye and off the military mapboard.
During the past 45 years, it is likely that the first salvos in such a clandestine campaign have already been
launched—silently and without fanfare. The concept of social sabotage is not new. What is disturbingly new,
however, is the growing potential for biological and toxin agents to serve as weapons in such a struggle.


240 Readings on International Law

USSR’ entry in the Pacific Economic Cooperation Committee (PECC), and
so on.”

At the summit, Kaifu did not even mention an expected aid package of $450
million to finance repayment of overdue Soviet debts to Japanese creditors; this
would have wiped clean the debt slate and presumably would have instilled
confidence for future Japanese investment. Even that $450 million pales in
comparison to the $26 billion that some believed would be offered by Japan for
retrocession of the islands.”8

Ifa deal had been concluded, the next question would have been: what effect
would retrocession of the islands have for the U.S.-Japanese alliance? Denis
‘Warner, prior to the summit, had put forth the scenario that the threat of nuclear
war has receded and that the extra security provided at the southern end of the
Kuriles is no longer a strategic imperative for the Soviet Union. A deal with
Japan, he foresaw, could create pressure against increased Japanese military
budgets and give renewed emphasis to Japanese anti-Americanism, which would
in turn challenge continued U.S. military presence and U.S. military bases.
‘Warner, however, saw that scenario and any such resolution of the Northern
Territories issue as highly unlikely, since to the Soviet Union “it would be
tantamount to an acceptance that the world is no longer divided into two social
adversary systems and that nothing should ever be done to lower the Soviet
Union’s guard.””

The converse to the “break Japan from the U.S.” scenario is the “military
abandonment by the U.S.,” which the Japanese fear may occur as the Soviet
threat further recedes with abandonment of the southern Kuriles. In this view,
the Soviet threat to U.S. regional interests would disappear in the eyes of a
majority of Americans, and, amidst American clamor over unfair trade arrange-
ments and Japanese failure to carry their military fair share, Japan would lose the
protective U.S. umbrella and find itself isolated.

Suffice to say, the 1991 Soviet-Japanese bilateral talks ended without a Kuriles
resolution; any illusions that the alliance between the United States and Japan
would not remain “a centerpiece of our security policy and an important anchor
of stability” should have quickly evaporated.>” The Kuriles stalemate has kept
alive the regional status quo ante, and a cold relationship maintains itself in this
corner of the post-Cold War world. A peace treaty with the Soviet Union
remains unsigned. Soviet forces remain off Hokkaido. The submarine bastion’s
archipelagic shield remains intact under Soviet sovereignty. The sea passages
between the islands remain subject to penetration by U.S. and allied attack
submarines.

Non-resolution of the Kuriles issue at the April summit was predictable; in a
long-term perspective, however, it may not have been regrettable. As it is, the
security alliance between the United States and Japan remains unchallenged by
political aberrations that may have resulted on either side of the Pacific, from the


Robertson 307

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 Altmarke
incident, which will be discussed infra n. 75, is illustrative of how this issue might arise.

67. It is a disputed point as to whether a neutral State may allow a warship to repair battle damage in a
neutral port, See SMITH, THE LAW AND CUSTOM OF THE SEA 154 (2d ed. 1950) (SMITH); COLOMBOS,
supra n, 15, at 654-657. In any event, it is settled law that repairs which increase the fighting strength of the
damaged warship are not permitted, See Harvard Research in International Law, Draft Convention on Rights
and Duties of Neutral States in Naval and Aerial War, Comment on Articles 32-36, 33 Am. J. Int'l L. 169, 463
(1939).

68, LOS Convention, supra n. 2, article 8, para. 3.

69. RAUCH, THE PROTOCOL ADDITIONAL TO THE GENEVA CONVENTIONS FOR THE PROTEC-
TION OF VICTIMS OF INTERNATIONAL ARMED CONFLICTS AND THE UNITED NATIONS CONVEN-
TION ON THE LAW OF THE SEA: REPERCUSSIONS ON THE LAW OF NAVAL WARFARE 32, (1984),
citing Hague XIII, NWIP 10-2, supra n. 61, and the Soviet Naval International Law Manual (Moscow: 1966).
Both 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 n. 61, para. 7.3.4.2.

‘71. Canadian Forces, Law of Armed Conflice Manual (Second Draft) (Ottawa: undated), para. 1509
(hereinafter cited as Canadian Manual). 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
Operations, 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 para. 1119 (1992),
(hereinafter cited as German Manual).

73. Hague XIII, supra n. 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 n. 61 supra; see also WHITEMAN, supra n. 47, 190 ff. and sources cited therein.

‘75. For a detailed examination of the Altmark incident, see MACCHESNEY, U.S. NAVAL WAR
COLLEGE, INTERNATIONAL LAW SITUATIONS AND DOCUMENTS, 1956, SITUATION, DOCUMENTS,
AND COMMENTARY ON RECENT DEVELOPMENTS IN THE INTERNATIONAL LAW OF THE SEA 3
(1957), (hereinafter cited as MACCHESNEY). A revised version is printedin MacChesney, The Alimark Incident
and Modem Warfare—‘Innocent Passage’ in Wartime and the Right of Belligerents to Use Force to Redress Neutrality
Violations, 52 Nw. U.L. Rev., 320 (July-August 1957). See also, C.H.M. Waldock, The Release of the Altmark
Prisoners, 24 Brit. Y.B. Int'l L. 216 (1947).

76. See CHURCHILL, THE GATHERING STORM 531-532; (1948), see also H. A. Smith, supra n.67 at
153.

77. Some States continue to assert that innocent passage of warships is subject to advance notification or
consent, During UNCLOS III, a number of States introduced amendments to the draft Convention secking
to make this an explicit requirement. Opponents 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 of the draft Convention.” United
Nations, Third United Nations Conference on the Law of the Sea: Official Records (New York: United Nations,
1984), v. XVI, 132, para. 1 (cited hereinafter as UNCLOS OR). A number of States made statements at their
signing or ratification of the Convention that the terms 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, Oman, 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 notifying 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. XVIL, 241-244.

78. Hague XIII, supra n. 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 10] 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 n. 75, 18-19.


270, Readings on International Law

4. The Commission considers that the breadth of the territorial sea should be
fixed by an international conference.”

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,>° 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
limits.”>! 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.

The 1958 Conference did, however, succeed in reaching agreement on the
contiguous zone which prior to the Conference had been disputed.®* 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 ofits customs, fiscal, immigration or sanitary regula-
tions 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 1(a). The ILC’s Commentary on its draft article includes the following
comments:

(1) International law accords States the right to exezcise 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 rights as are conferred on it by the present draft or
are derived from international treaties.*

Significantly, the Commission added the following comment:


480 Readings on International Law

business, sarin can be synthesized in 100 gram quantities by an organic chemist
with modest graduate training for an investment of only a few thousand dollars.
(It should be remembered, however, that a larger quantity would probably be
needed for a successful attack.)

It may be even easier for terrorists to acquire biological weapons than it would
be for them to acquire chemical weapons. Quantities of clostridium botulinum,
the bacillus that produces botulinum toxin, is available from the American Type
Culture Collection, in Rockville, Maryland, for a fee of $34. All that the
collection requires is that the request be made on a business letterhead or
requisition form from a suitable research facility or laboratory, a procedure that
would seem to be well within terrorist capabilities. There is even an 800 number
provided for easier service!*

Once the bacillus has been acquired, a terrorist need only grow the culture
under anaerobic conditions in a pure culture in order to produce the deadly
botulinum toxin. (The botulinum toxin is one of the most deadly substances
known to man. It has been estimated that seven ounces of botulinum toxin, if
efficiently dispersed, would be sufficient to kill the entire human population of the
world. It should be kept in mind, however, that the purification process is complex
and that a small quantity might not be adequate for an effective attack.)°

It would be somewhat more difficult for a terrorist group to disperse C/B
agents in an actual attack than it would be to acquire the agents themselves.
Efficient dispersal presumes a thorough knowledge of the spaces that are to be
attacked and the air flow within them, as well as a precise knowledge of the
physical properties of the C/B agent used, However, even if the terrorists only
managed to reach 10 percent of the intended victims with a lethal dose of the
dispersed agent, the casualties from a single terrorist attack—depending on the
scenario and the agent used—might easily amount to several thousand deaths.°

How might an actual attack take place? It is frighteningly simply. Terrorists
using biological agents could disperse them among bulk food supplies, e.g., at a
central market, a large-scale catering operation, or even a single supermarket.
Chemical agents could be effective if introduced into the air handling system in
a small office building or dispersed, say, from an ice cream cart standing admist
thousands of people in a large auditorium. (Introducing an agent into a municipal
water supply would not be a credible threat because of the huge volume of water
that would need to be contaminated and the numerous steps in the filtration and
purification process.)

So why haven’t terrorists made more use of C/B? It is the belief of the author that
terrorist groups have not so far (with minor exceptions) used C/B weapons
because of a straightforward assessment that the potential gain may not exceed
the potential loss. Looked at in this coldly rational way, the “benefits” that a
group could expect to achieve from a successfull mass casualty C/B attack and
the credible threat to repeat the episode would be spectacular visibility and


162 Readings on International Law

and aircraft on, under and over the ocean. Coastal nations, emphasizing offshore
resource management, preferred broader limits. The impasse in 1958 led to the
Second UN Conference on the Law of the Sea (UNCLOS II), which met in
Geneva in 1960. Again, the delegations failed, albeit narrowly, to agree on a
maximum breadth for the territorial sea. The 1958 Convention on the Territorial
Sea and Contiguous Zone® avoids the maximum breadth issue, saying nothing
at all about it.”

The High Seas Convention,® another of the four treaties adopted in Geneva in
1958, spelled out the “freedoms of the high seas.” After defining “high seas”
essentially as all waters seaward of the territorial sea, the High Seas Convention
lists four specific high seas freedoms: (1) freedom of vessel navigation (including
submerged navigation); (2) freedom of overflight; (3) freedom to fish; and (4)
freedom to lay submarine cables and pipelines. The High Seas Convention makes
it clear, however, that international law might recognize other high seas freedoms
in addition to the listed four. The best candidate in 1958 for a “fifth freedom”
was the freedom of scientific research. The High Seas Convention also contains
several rules on such matters as flag-state jurisdiction, piracy, etc.

The Continental Shelf Convention? codified the principle sparked by the first
Truman Proclamation in 1945, that coastal nations had sovereign rights over the
natural resources of their adjacent continental shelves.!° However, this treaty also
reaffirmed that the waters above the continental shelves would not be affected
and, therefore, such freedoms as navigation and overflight continued to exist in
high seas above the continental shelves.

The fourth 1958 Geneva Convention on the Law of the Sea was the
Convention on Fishing and Conservation of the Living Resources of the High Seas," or
the Fishing Convention. This treaty was designed both to preserve important
high seas freedoms and to respond to at least a part of the concern of many coastal
nations about foreign fishing outside their territorial seas. It provided that, under
carefully delineated circumstances, a coastal nation could unilaterally adopt
temporary, nondiscriminatory conservation regulations for endangered fisheries
in adjacent areas of the high seas, pending agreed-upon or arbitrated international
conservation rules. Although this treaty was not exactly a failure—it was adopted
in Geneva by a two-thirds majority and did receive enough ratifications to enter
into force for those who ratified—it was never a success. First of all, the major
distant-water fishing nations, such as Japan and the Soviet Union, never became
parties and were thus never bound. Second, the Fishing Convention did not
really respond well to all the reasons for the trend toward broader coastal nation
jurisdiction.

Through clear hindsight, we can now see that UNCLOS I and II were, in
many respects, nonsuccesses. The failure of UNCLOS II to establish a
maximum breadth for the territorial sea was indicative of the more general
failure of the International Law Commission and the two conferences to


198 Readings on International Law

Styx missiles which explode, cutting the craft in two and killing all aboard, long
before its crew is able to bring their largely defensive guns to bear.

The supply vessel immediately executes a turn to the south, but soon is
overtaken by the North Korean boats which rake it from bow to stern with
machine-gun and small-arms fire, killing three crewmen and seriously wounding
the captain, who manages to radio a “Mayday” to the ROK Navy sector
commander. A ROK Air Force F-5 fighter is scrambled immediately and reports
that the supply vessel is under tow and appears to be heading for the North
Korean port of Nampo.

Meanwhile, in Seoul, a North Korean defector reports that his reserve
motorized rifle division has been mobilized for war. Overhead reconnaissance
confirms this, showing massive troop movements southward and increased
activity along the DMZ. Receiving this unwelcome news, the Commander in
Chief, Combined Forces Command (CINC/CFC),* a four-star U.S. Army
general, alerts his U.S. and ROK forces and begins to increase their readiness for
the expected North Korean thrust south across the DMZ.

In Pusan, a port on the southeastern coast of the Republic, the captain of the
USS.S. Bunker Hill (CG-53), an Aegis-class cruiser, is recalled from a port visit
and ordered to proceed at “best speed” with two U.S. ships in company—the
guided missile frigate Rodney M. Davis (FFG-60) and the destroyer Fife (DD
991)—to an operating area 40 miles due east of the North Korean east coast port
of Wonsan to rendezvous with a carrier battle group proceeding to that area.

Arriving early on the morning of 6 February, the Bunker Hill's captain is
troubled by a report from the pilot of the ship’s helicopter that the flight crew
has spotted the periscope of one submarine and confirmed the presence of
another, classified as probable Romeo and Whiskey-class and believed to be
North Korean. Both have submerged and appear to be closing the group’s
position. Requesting permission to “neutralize” this threat, the pilot asks that
additional helicopters be dispatched to prosecute these contacts and search for
others. Just then, the cruiser’s air-search radar operator reports six fast-moving
“bogies”—unidentified and presumed hostile aircraft—closing their position.

The Captain, feeling that old familiar knot in his stomach, calmly orders
“General Quarters!” breathes deeply and picks up the secure encrypted red radio
handset to inform his boss, Commander Task Group 75.1, who is embarked in
his flagship, of the rapidly deteriorating situation and of his intent to engage the
North Korean forces.

hile the picture just painted is not comforting, it is, unfortunately, all too

plausible a scenario which might be confronted in this region of

* This commander is many-hatted, serving not only as CINC/CFC, but also as Commander

in Chief, United Nations Command; Commander, U.S. Forces Korea; and Commander, Eighth
US. Anny, Korea.


538 Readings on international Law

have precluded the carnage had she complied with their terms. Conversely, had
a restrictive environmental regime been applied prohibiting the prudent use of
modern weapon systems (systems which have some inherent incidental and
collateral environmental impact), the effective coalition response to Iraqi aggres-
sion may not have been possible.!

The legal underpinning for the highly effective United Nations effort in the
Gulf was found in the minimum world order provisions (Articles 2(4) and 51 of
the U.N. Charter), not in environmental law. The vitality of the law of armed.
conflict is to be measured not only by the U.N. regime but the Hague and Geneva
law as well. Together, they authorize only that necessary and proportional
response required to return the parties to the status quo ante.

U.N. Security Council Resolutions 674, 678, and 687 require no less. In
Resolution 687, the Security Council has reaffirmed Iraqi liability under inter-
national law for any direct loss or damage, “including environmental damage and
the depletion of natural resources,” as a result of the unlawful invasion and
occupation of Kuwait. Coalition representatives in the United Nations are
working hard to ensure the new compensation fund established under Resolu-
tion 687 and drawn from Iraqi oil sales includes payment for the environmental
cleanup effort as well as long term damage to Kuwaiti resources.

Actions such as these, which reflect the United Nations’ resolve and newfound
enforcement capability in the framework of the law of armed conflict, provide
greater hope for the environment than a statement of principles or anew Geneva
Convention.

Colonel Terry was the Deputy Legal Counsel to the Chairman, Joint Chief of Staff when this
article was first published.

Notes

1. General Order NO. 100 (1863) signed by President Lincoln, in SCHINDLER. & TOMAN, THE
LAWS OF ARMED CONFLICT 3 (1988).

2. GOLDBLAT, AGREEMENTS FOR ARMS CONTROL: A CRITICAL SURVEY 120-121

1982).

an Regulations Annexed to Hague Convention IV of 1907 Respecting the Laws and Customs of War
on Land, 36 Stat. 2259; Treaties and International Agreement Series (TIAS) 538; BEVANS, TREATIES AND
OTHER INTERNATIONAL AGREEMENTS OF THE U.S.A., 1776-1949 at 619, Dept. of State
Publication 8407 (November 1968).

4, International Military Tribunal (Nuremberg), Judgement and Sentence, 41 Am. J. Int'l L. 172 (1947).

5, “Usufruct,” as used in the Convention, means “the right of one State to enjoy all the advantages
derivable from the use of property which belongs to another State.”

6. See Art 51, Geneva Convention I (GCI); Art 52, GCI; Art 131, GCIII; and Art 148, GCIV.

7. See Art 49, GCI; Art 50, GCI; Art 129, GCI; and Art 146, GCIV.

8, U.N, Security Council Resolution 687, requiring Iraqi compensation to Kuwait, has its underpinning
in Article 3, Hague Convention IV of 1907.

9. Convention on Prohibition of Military or Any Other Hostile Use of Environmental Modification
Techniques (ENMOD Convention), signed in Geneva, 18 May 1977; entered into force, 5 October 1978;
US .ratification, 13 December 1979; ratification deposited at New York, 17 January 1980, published in U.S.


348 Readings on International Law

carrier battle groups are too weak to deal with the Soviets, yet not flexible enough
to deal with other contingencies. Our main business, in this view, is to convoy
supplies to NATO in a long war. The Navy, this view concludes, is irrelevant
in a short war.

I would venture two very careful reactions to such logic. First, if you examine
any short war in recent history, you will see that the sea services have been
predominant. And if you examine any European war during this century, you
will find that, despite a myriad of predictions beforehand, it has never been short.
Take your pick; unless a war were to escalate quickly to a nuclear exchange that
destroyed the world as we know it, you could not fight it without a strong and
capable Navy.

And of course, our purpose is to be so strong that we will not have to fight.
The military means at our disposal are dedicated to the prevention of war because
we believe that our political objectives are so attractive to other countries that
they inevitably will be obtained in peace. This, too, is a strategy. It is called
deterrence and requires both military strength and a clear national will. But we
have a problem here. Deterrence is often described as a spectrum. We have been
most successful at the most dangerous end of that spectrum. And yet, while we
have avoided direct confrontation with the Soviet Union, since World War II
more than 100,000 Americans have died in the unofficial conflicts at the lower
end of the spectrum. This may be a failure of our overall strategy, or it may be
a sort of leakage that is uncontrollable in the wake of successfully controlling
all-out war. In any event, the fate of our generation has been to learn a new
lexicon of warfare, terms like low-intensity conflict, fear of escalation, diplomatic
presence, political mission, avoidance of provocation, proportionate response,
protective reaction, and rules of engagement.

Such equivocations are in many ways a sad function of our very strength. Our
military units are often more vulnerable than they should be because political
tules have given an enemy a weird sort of equality by reducing our own level of
power to the point that the enemy can compete. We call this restraint. There
have been times when our political system has placed combat forces into combat
situations and precluded their having a combat mission in the name of gaining a
political objective. Too often, as all of us know, military action is taken against
these forces, political objectives fail, and our highly competent military leaders
are ridiculed because of situations they did not fully control. This may be the
most difficult strategic question of the moment: how do we, as a nation, deter
military action on the lower end of the scale? Or, if deterrence is not possible,
when do we shoot, and how much force do we use to accomplish political
objectives that include the containment of hostilities?

Today’s sea services are highly capable and highly flexible. We are developing
the ability to cross-fertilize our warfare specialties, utilizing a combined arms
approach to many varied situations. Within weapons systems we are developing


610 Index

private-ends test, 440-441
seizure of Mayaguez, 37-38
U.N. Law of the Sea Convention, 338
Poisonous-gas weapons, 468, 471, 472
Poland
“doughnut hole,” 222
negotiating history of UNCLOS III, 194
Polaris system, 568
Policy Science Approach. See Law of the Sea, problems of.
Political asylum. See Asylum, political. See also Havens for terrorists.
Political crimes. See Crimes, political.
Portugal, Treaty of Tordesillas, 265
Poseidon system, 568
Posse Comitatus Ac, 413-414, 415, 416, 418
exceptions, 418, 419, 425
Preservation of the marine environment, 92
Presidential powers over U.S. military
Constitutional authority, 355-363, 414
statutory authority, 412, 413, 414-415
Prestige, moral, 21
Prisoners of war
distinguishing hostages and, 395
Geneva Convention of 1949 Relative to Treatment of Prisoners of War, 535
guarantees for captured combatants of prisoner-of-war status, 476
Prize cases, 357
Proportionality principle, 23, 370, 453, 457, 461, 463, 470-471, 483
Protocols to the Geneva Convention of 1949. See Geneva Conventions of 1949, Protocols of 1977.
Publicity for terrorist actions, 404, 428, 449, 451, 463
Puerto Rican Armed Forces of National Liberation (FALN), 407
Pursuit, 483-484

Q

Qship program, British, 498-499
el-Qaddafi, Colonel Muammar, 352-353, 354, 449-450, 502, 514, 515
Qatar, boundary agreement with Iran, 87

R

Rabta chemical plant, Libya, 514, 515,
Rangoon
attacks on South Korean diplomats, 456
Rauch, Dr. Elmar, 278-279, 282, 284, 285, 287, 292-293, 296
Reagan administration
authority for preemptive war, 359
“compellent diplomacy,” 351
Freedom of Navigation program, 199, 246, 353
Grenada intervention, policy on, 321, 322, 325, 326, 327-328
INF Treaty, 565
policy on biological/biochemical weapons
arms control, 512
economic sanctions for use of bioweapons, 511
export controls, 511
retaliatory threats, 514
policy on mandatory transfer of marine technology, 150
policy on terrorism, 424, 449-450, 455-456, 457, 461-463
anticipatory self-defense, 461-462


188 Readings on International Law

26.
27.
28.
29,
30.
31.
32,

See Hu, supra n. 4, esp. chaps. 5 and 6,
See Hu, supra n. 20.

See the Preamble of the 1982 United Nations Law of the Sea Convention (1982 LOS Convention).
See Article 19, Paragraph 1 of the 1982 LOS Convention.

See Article 39, Paragraph 1 (b) of the 1982 LOS Convention.

See Article 52, Paragraph 2 of the 1982 LOS Convention.

Foran elaboration of these rights see the following articles in the 1982 LOS Convention, in particular:

Article 19, Paragraph 2; Article 21, Paragraph 1; Article 33, Paragraph 1; Article 40; Article 41, Paragraphs 1,
2, and 7; Article 42, Paragraphs 1 and 4; Article 49, Paragraphs 1 and 2; Article 53, Paragraphs 1, 6, 7, and 11;
Article 54; Article 56, Paragraph 1; Article 60, Paragraphs 1, 2, 4, 5, and 6; Articles 61 and 62; Article 73,
Paragraph 1; Article 77; Articles 78, 80, and 81.

33.
34,
35.

BOOTH, supra n. 1 at 26.
HILL, supra n. 5 at 87 or 149.
Admiral Hill argues “the type or types of operation for which reach is required, if they can be defined,

will clearly help to govern and limit the forces to be provided.” Id. at 150.




48 Readings on International Law

He acknowledges that “the new ocean order is bound to create some difficulties
for naval operations,” noting that the old ocean order was ideally suited for the
mobility of powerful navies, whereas the emerging new consensus “will impose
restraints on ocean use where before there were none.”

This article will first review Janis’ exposition of these themes. Second, his book
will be examined in context of those other recent publications noted in my first
paragraph. Third, his monograph will be examined in the context of international
law to illustrate the breadth of sources that must be considered when a naval
operation is being planned or when situations develop in the ocean environment.
Finally, the article will illustrate the utility of the contextual method of problem
solving through decision theory, particularly the policy science approach. While
Sea Power has certain shortcomings, whether viewed from the perspective of a
traditional lawyer or from the policy science vantage point, the book is a very
commendable first effort by an outstanding young scholar with real promise.

The first four chapters focus on the four major naval powers—the United
States, the Soviet Union, Great Britain, France—and these States’ interests in law
of the sea (LOS) issues, each nation’s domestic interests in “ocean policy
processes,” and the reflection of naval interests in each country’s ocean policy.
Chapter five primarily analyzes the coastal navy States’ interests in the main law
of the sea issues. Each of the first four chapters begins with the major powers’
conceptions of their navies’ missions or roles as seen by the head of its navy or
by an authoritative decisionmaker in the equivalent of the U.S. Department of
Defense, in the sub-chapter on naval interests in law of the sea issues. The
subchapter continues by analyzing the strategic deterrent forces and those vessels
that would carry out conventional missions. The reader is referred to standard.
sources such as Jane’s Fighting Ships for descriptions of each country’s navy, but
Janis might also have considered the heightened power of combinations such as
NATO, the Rio Pact, the Warsaw Pact, or other published alliances. Chapter 1
analyzes the principal legal issues in present law of the sea negotiations that affect
the U.S. Navy: right of passage through straits, including analysis of straits crucial
to American naval interests; transit along coasts, and therefore the issue of the
territorial sea; and military use of the deep seabed. This theme is repeated in
succeeding chapters to demonstrate that the Soviet Union, Britain and France
have positions similar to the United States on straits and the territorial sea,
although the British and French stance is less clear and may be subject to change
in the future. The United States and the U.S.S.R. differ on the issue of military
uses of the seabed, the United States favoring a regime permitting implantation
of listening services, while the Soviet Union has desired complete demilitariza-
tion of the seabed. Janis sees this difference as resulting from “scientific lag” or
perhaps from propaganda intents, and notes third-world support for total
demilitarization.


Aceves 261

28, Department of the Navy message from the Office of Information to the Commander in Chief United
States Naval Forces Europe, 19 March 1986, declassified 9 August 1989.

29. Central Intelligence Agency telegram to the Department of State, 13 February 1988, declassified 28
November 1989.

30, Id.

31. Butler, supra n, 19 at 344.

32, Id, at 344-345,

33, Supra n, 27 at 26.

34, Ralph Boulton, Soviet Agency Accuses U.S. of Espionage over Soviet Coast, Reuters, 2 April 1986.

35, UPI, 22 March 1986. It would appear that space-based surveillance support for Freedom of Navigation
operations does exist. In 1988 the United States Space Command at Peterson Air Force Base notified the
various commanders in chief that a separate message “encouraged CinCs to work together regarding Freedom
of Navigation (FON) scheduling and operations. Request [that] CinCs planning for the operations inform]
UsCincSpace/J3 on any requests which may potentially involve space based surveillance support.” Message
from Headquarters U.S. SpaceCom, Peterson Air Force Base, Colo., to UsCincLant, 7 June 1988, declassified
22 August 1989.

36. The Crimean Peninsula accommodates sensitive Soviet southern radar defenses as well as submarine
bases.

The electronic reconnaissance program has been in existence since 1962. The purpose of the program is to
establish the location of radar systems and determine their physical characteristics. With such information,
electronic countermeasures can be designed to jam or negate those systems. Generally, the first priority of
electronic reconnaissance with respect to radars is to establish the location of the radars. Next, attention is
turned to identifying the function of the radar (early warning, aircraft control, gun-laying, antiaircraft, oractive
countermeasures). See RICHELSON, AMERICAN ESPIONAGE AND THE SOVIET TARGET 109 (1987).

Interestingly, the Soviets compared the use of satellites during the Black Sea operations with the 1983
downing of the Korean Airlines passenger jet. Moscow asserted that the Korean airliner had been on a
pre-planned spying mission flown in conjunction with the electronic reconnaissance (or “Ferret”) satellite.
Novosti asserted that “‘this most recent use of the Ferret satellite in an outrageous provocation against the
sovereignty and security of the Soviet Union will pethaps serve as a reminder of provocation staged not so
long ago. . . . The outcome of some of these provocations was relatively harmless, while others spelled a tragic
end for those who staged them.” See Boulton, supra n. 34.

37. Halloran, 2 U.S. Ships Enter Soviet Waters off Crimea to Gather Intelligence, The New York Times, 19
March 1986, p. Al.

38, Since 1980 the Caron has been on at least twenty-four missions where her special equipment for
collecting intelligence has been needed, For example, she has been involved in intelligence gathering off the
coast of Nicaragua in 1982 and Lebanon in 1983-1984, and she played a part in the 1986 maneuvers in the
Gulfof Sidra prior to the American raids on Tripoli. The Caron was the first U.S. Navy ship to arrive on station
for Operation Urgent Fury against Grenada in 1983.

Against Soviet troops, the Caron has been engaged in intelligence gathering near several major Soviet naval
bases, including Kaliningrad, Severomorsk, Sevastopol, and Polyarmyy. The Caron also provided surveillance
of the Soviet Kiev aircraft carrier battle group in Operation Aggressive Knight in March 1980 and Operation
Eagle Eye in July 1981. See Department of the Navy message from the Office of Information to the Commander
in Chief United States Naval Forces Europe, 19 March 1986, declassified 9 August 1989; Cushman, 2 Soviet
Warships Reportedly Bump U.S. Navy Vessels, The New York Times, 13 February 1988, p. Al; and Arkin, supra
n 25 at 6,

39, Soviet Ships Shadowed U.S. Vessels’ Transit, The Washington Post, 20 March 1986, p. A33.

40. Department of the Navy message from the Office of Information to the Commander in Chief United
States Naval Forces Europe, 12 March 1986, declassified 9 August 1989.

41, Halloran, supra, n. 37 at Al.

42, Department of State Bulletin, May 1986, p. 79.

43, Department of State telegram from CincUsNavEur to Commander in Chief European Command
UsCincEur), 12 February 1988, declassified 23 February 1991.

44, Sevastopol is the headquarters of the Soviet Black Sea Fleet.

45, Department of State Telegram from CincUsNavEur to UsCincEur dated 12 February 1988, declassified
22 February 1991, (Slightly edited, abbreviations expanded.)

46, Message from the USS Yorkioun to Commander in Chief United States Naval Forces Europe, 12
February 1988, declassified 16 January 1990. (Edited as for Caron message.)

47, Office of the Legal Adviser, Department of State, declassified 10 August 1989.

48, Similar protests were conducted by the Navy and the Defense Department. The naval protest was
lodged pursuant to the Incidents at Sea (IncSea) Agreement. At the Defense Department, Secretary Carlucci
stated that one of the issues he would like to discuss with Soviet Defense Minister Dmitri Yazov during their



Parks 471

police inquiry naturally produces nothing. To identify the assailants would require
long interrogations and probably torture, since it is a matter of extracting infor-
mation from patriots, conscious of serving a sacred cause. Moreover, other columns
are arriving and there can be no question of conducting enquiries for weeks. The
[division] commander will simply consider that “the enemy” is present in these
two villages. He has a few planes at his disposal; he causes one of the villages to be
bombed flat and several hundred people are killed, In the case of the other, he
orders . . . the execution of twenty-five people.

Faced with these two series of homicides, what will be the attitude of justice?
There is no room for hypotheses: the law is perfectly clear. The pilots who wiped
out the village, and their officers, will be charged with no crime. On the other
hand, the soldiers, members of the firing squad and officers who took no part in
the execution . . . of the twenty-five inhabitants of the second village, will be
found guilty of homicide.

,

From this state of the law there can be drawn only one precious, but amoral, axion:
Never carry out executions or destructions with the care of a craftsman. But long
live wholesale massacre!

Article 57 of Protocol I not only corrects this paradox by codifying the rule
of proportionality, but also provides the military commander with uniformly
recognized guidance with respect to his responsibility to the civilian population
in executing attacks against military objectives. Simultaneously, Protocol I
charges the military commander under attack with the duty to avoid civilian
casualties by prohibiting “the movement of the civilian population or individual
civilians in order to attempt to shield military objectives from attack” (Article
51(7)) or the improper use of the red cross (Articles 28(1) and 38(1)). In requiring
that a commander “do everything feasible” to identify a target as a military
objective, Article 57 coincides with the rules of engagement used by U.S. forces
in Vietnam," traditional target intelligence requirements, principles of war such.
as economy of force, and practical political considerations arising from excessive
collateral injury to civilians or civilian objects. While objective criteria are
provided, the decision of the commander ultimately is based upon subjective
factors, i.e., the best information available to him at the moment of decision.!*

Weapons. Weapons also are judged by considerations of military necessity and
unnecessary suffering, the latter phrase in the classic sense concerning itself with
such weapons as barbed spears or dumdum bullets that “uselessly aggravate the
sufferings of disabled men, or renders their death inevitable.”'? The rationale for
this rule is twofold: (a) weapons which cause unnecessary suffering cause needless
injury to the individual long after the conclusion of hostilities, as evidenced by
the effects of poisonous gas in World War I; and (6) militarily, wounding
generally is more effective than killing, diverting men from the battlefield to
evacuate and care for their wounded.


Index 597

political interpretations of, 565-566
USS. destruction of forward-deployed systems, 571
linkage to SDI, 566
verification, 566
Informal Composite Negotiating Text (ICNT), 52, 65, 71. See also U.N. Third Conference on the
Law of the Sea (1982).
Innocent passage rights. See Passage, innocent.
International Federation of Airline Pilots Associations, 394
Institute of International Law, Manual oni the Laws of War on Land (“Oxford Manual”), 546
Insurrection, U.S. law regarding suppression, 414-415
Intelligence regarding State-sponsored terrorism, 456-457
Inter-American Treaty of Reciprocal Assistance (Rio Treaty), 333, 371, 372
Internal waters
as neutral “maritime territory”, 276
sovereignty, 279
International bodies, expansion of international law to, 9-10
International Civil Aviation Organization (ICAO), 11, 282, 288
International Committee of the Red Cross (ICRC), 469, 472, 473, 474, 495-495, 530
International Court of Justice, 7, 8, 12, 16, 78, 224, 280, 281
Anglo-Nonvegian Fisheries Case, 88
as third party mediators, 22
Nicaragua v, U.S., 371
Sir Humphrey Waldock, 460
USS. v, Iran, 369
U.S. v. Nicaragua, 372
International Covenant on Civil and Political Rights, 9
International Covenant on Economic, Social, and Cultural Rights, 9
International Covenant on the Elimination of All Forms of Racial Discriminations, 9
International Federation of Airline Pilots (IFALPA)
pressure for international law on hijacking and hostage-taking, 380
International Labor Organization, 9
Intemational law
and a bureaucratic system, 24-26
autointerpretation, 37-38
Caroline Case, 32, 332, 336, 459
codification of, 10-11, 34, 161
concerning terrorism, See Terrorism.
criticisms of, 4
customary, 7, 189, 210, 224, 245, 246, 268, 272, 274, 276, 280, 297, 339, 379, 438, 459, 470, 476,
537-538
attentat clause, 379
aut dedere aut punire (extradite or prosecute), 380, 382, 390, 403, 404
definition of, 5-6, 8, 21
dispute settlement, 77-79
disputed jurisdiction, 98-99
enforcement, 4-5, 11-13, 21, 23, 39-40, 42, 71-72, 98-99, 113, 383, 404
expanding reach of, 8-9
framework for responding to State-sponsored terrorism, 457-461
fanction of, 5
fundamental rules of
effectiveness, 37
functional sovereign and diplomatic immunities, 40-41
humanitarianism, 41-42
minimal force, 37
reciprocity, 36
res inter alios acta, 42-43
supremacy of the law, 38-39
territoriality, 39-40



72 Readings on International Law

including, even in the absence of the treaty, an international court of justice or
arbitration. Under the treaty there would be a whole array of legal means to
vindicate these rights. I think, therefore, that if firmness, intelligence, and
consistency is applied to the assertion of rights that do rest upon a broad basis of
international law, it follows that there should be minimal occasion to have to
resort to any form of police action in their enforcement.

Address by Ambassador at Large Elliot L. Richardson to the classes of the Naval War College
on 16 February 1979.


276 Readings on International Law

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 opera-
tions 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.

* Third, the neutral State is required to apply its neutrality regulations
impartially to all belligerents engaged in the conflict.

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 (XIII) Concerning the Rights and Duties
of Neutral Powers in Naval War. 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.TM 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 2 base of operations nor erect
any apparatus to communicate with belligerent forces at sea (article 5);


444 Readings on International Law

the coastal State government, based upon proven maritime capabilities and
experience,

c. National Defense. Responsibility for safeguarding offhore drilling plat-
forms from terrorist attacks initially rests with the corporate owner or operator,
unless of course the facility is government-owned. Nevertheless, a fine line exists
between what constitutes an attack made by profiteering criminals, politically
inspired terrorists acting alone, terrorists acting on behalf of another State (i.¢.,
mercenaries performing surrogate warfare), or some foreign State’s regular armed
forces operating under the guise of terrorists. Depending upon the case, the attack
might be construed as an action necessitating either a law-enforcement response
or a national defense (i.e., military) response. Because of time constraints the
need for expeditious reaction, and the possibility of interagency confusion or
misappropriation, having a force capable of performing both roles would appear
very desirable. For most coastal States, their national coast guards could perform
this mission adequately. For other States where particular geographical cir-
cumistances or environmental conditions make regular coast guard patrols im-
practical or overly onerous, maintaining a ready reserve strike force that is
specifically trained for the eventualities of such terrorist attacks would entail a
welcome measure of added security.

Recommendations for Policy Consideration

As gleaned from the legal analysis and political observations above, some
policy-oriented recommendations vis-a-vis offshore maritime terrorism seem.
appropriate. Accordingly, two pertinent approaches for policy consideration
loom apparent: prevention, and punishment.

Preventive Measures. The best cure for offshore maritime terrorism is intentional
dissuasion through prevention. Generally speaking, prevention against such
terrorist attacks can be achieved in great part by pursuing a threefold policy-
oriented strategy consisting of “The Three P’s”: Planning, Preparedness, and
Performance.

In planning, there is an integral need to consider a wide variety of conceivable
terrorist situations and scenarios; risk assessment of platform vulnerability should
be performed, evaluated, and appraised. Contingency plans and options should
be drawn up and distributed throughout the facility’s operational hierarchy on a
“need-to-know” basis. Put tersely, the more thorough the planning, the more
prepared the offshore facility is likely to be.

With regard to preparedness, training programs assume critical import. Writ-
ten instructions outlining how and when to implement emergency plans should
be made accessible to decision makers, and command-control communications
networks should be set up to ensure constant interface between a sea-based


308 Readings on International Law

79. SMITH, supra n. 67, 153; TUCKER, supra n. 65, 232; NWIP 10-2, supra note 61, section 443a, note
28; NWP 9, supra n. 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. Canadian Manual, supra n. 71, para.
1511(3). The German Manual is ambiguous, In paragraph 1130 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 permissible” (citing Hague XIII, Article 10), 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 XIIL, Article 10). Gennan Manual, supra n. 72, pars. 1130 and 1133.

80. Reisman and Lictzau, Moving Intemational Law from Theory to Practice: The Role of Military Manuals in
Effectuating the Law of Armed Conflic, in ROBERTSON, supra n. 9, 1, 7.

81, See authorities cited in n. 79 supra, See also RAUCH, supra n, 69, at 40-44, Rauch states that although
the 1907 Hague Conference took up the issue of wartime passage through neutral strats, it did not include an
article in Hague XIII on the subject. But he also states that near uniform 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,, at 44,

82. United Kingdom v. Albania (Corfu Channel Case): MERITS, JUDGMENT, 1949 I.CJ. Reports, 4.

83. Id. at 28.

84. Territorial Sea Convention, supra n. 34, Article 16, para. 4.

85, See authorities cited in Robertson, Jr., Passage Through Strai
Nations Conference on the Law of the Sea, 20 Va. J. Int'l L. 801, 803, n. 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 1958
Territorial Sea Convention. Compare LOS Convention, supra n. 2, article 37, with the Territorial Sea
Convention, supra n. 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 n. 2, article 35(c).

88. Id,, article 36.

89, Id., 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 strats is not included within either those governed by the regime of transit passage or those
governed by article 45 (nonsuspendable innocent passage).

91. LOS Convention, supran. 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 litde operational significance.

92. LOS Convention, supra n. 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 ICAO rules,
“ill normally comply with such safety measures and will at all times operate with due regard for the safety of
navigation.” LOS Convention, supra n. 2, article 39, para, 3(a).

95. Id., article 42, para. 1.

96. Id., 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 III OR, supra n. 77,
v. II, Second Committee, 11th Meeting, p. 125, para. 23. See also, LOS Convention, supra n. 2, article 304,

‘98. See Moore, The Regime of Straits and the Third United Nations Conference on the Law of the Sea, Am. J.
Intl L. 74, 77, 95 (1980); Burke, Submerged Passage through Straits: Interpretations of the Proposed Law of the Sea
Treaty Text, 52 Wash. L. Rev. 193 (1977); Robertson, supra n. 85, at 843-846,

99. RAUCH, supra n. 69, at 45-46 (footnotes omitted).

100. NWP 9, supra n. 61, para. 7.3.5.

101. Canadian Manual, supra n. 71, para. 1511 (2). A foomote to the paragraph identifies those straits to
which the right of transit applies, following the criteria laid down in Part III of the LOS Convention.

102. See n. 79 supra,

103. LOS Convention, supra n, 2, article 35(c) (emphasis supplied).

104, See Convention regarding the Regime of the Straits, Montreux, 20 July 1936, League of Nations
‘Treaty Series, v. 173, p. 213, reprinted in 31 Am. J. Int'l L. 1 (Supp. 1937).

105. See Boundary Treaty between the Argentine Republic and Chile, 23 July 1881, 159 Consolidated
‘Treaty Series (Parry), 45. Article 5 thereof provides, in English translation, “Magellan's Straits are neutralized
forever, and free navigation is guaranteed to the flags of all nations.” In the Argentina-Chile Treaty of Peace
and Friendship of 1984, the two countries reaffirmed that the Straits of Magellan “are perpetually neutralized

A Right Preserved in the Third United


344 Readings on International Law

2) To see to it that the forces of Napoleon are driven out of Spain.

One can hardly have experienced combat without some recollection of similar
frustrations. As a rifle platoon commander in Vietnam, one of the most ridiculous
tasks I had to perform was to fill out a “Mine and Booby Trap Report” every
time someone detonated a booby trap. The bomb explodes, people are scream-
ing; imagine trying to clear lanes to your casualties so that other booby traps
would not be detonated as you treated the wounded, calling to arrange a
Medevac, placing your men into a defensive perimeter to protect against ambush
so the Medevac would land, and at the same time entertaining the string of
questions from higher authority: What kind of booby trap was it? What size
ordnance was involved? What was the actuating device? Trip wire, pressure,
pressure release, other? How was it hidden?

And, of course, the accurate response was, if we had known all of that, we
would not have set the thing off. But the demands of statisticians and historians
prevailed, so what we did, inevitably, was make up some standard responses in
order to get people off our backs. If only one or two people were wounded,
with no amputations, it as a Mike-26 grenade. If there was an amputation, or if
someone was mangled, it was a mortar round. If someone was killed or if there
were several people seriously wounded, including amputations it was some form
of artillery shell. If someone got blown to smithereens and you could not find
very much of him, it was a 250-pound bomb. And so on.

Of course, the bureaucracy and, I imagine, historians as well, took all of this
quite seriously, so that while I was in Vietnam a startling tabulation of these
reports was made—their results so alarming that a specially printed message was
sewn inside our flak jackets: “Don’t leave your grenades lying about. Fully 69
percent of all booby traps are caused by our own Mike-26 grenades.”

The point of this, I suppose, is that there are areas in defense policy where the
needs of the policymakers and the realities of the implementers diverge, and the
two separate elements must seem foreign to each other. However, this cannot
be said of the development and continual refinement of our military strategy.
The proper definition of our strategic goals is the true meeting place of military
and civilian priorities. Our strategy places the proper military means to guarantee
the Nation’s political objectives. Within the Department of Defense it shapes the
nature and extent of our resourcing and dictates the general positioning of our
forces and our equipment. That is to say, it often places you and your compatriots
face-to-face with the myriad of problems we face around the world.

These are more than intellectual and military issues, especially in a democracy.
The importance of a well-defined and properly articulated strategy assumes the
realm of moral obligation in a society that nurtures and protects free debate. The
defense of a free society depends upon support freely given by its citizenry. That


Booth 107

that neither would welcome such a development because of its naval implications
both regionally and further afield. Regionally the difficulties would be much
more serious for the Soviet Union, but the rights being questioned are those that
the United States would particularly not wish to concede elsewhere. Conse-
quently, the superpowers will resist change. Although they would hold out
strongly on issues affecting national security, it should be remembered how
quickly their positions changed on the 200-mile zone when faced by the bulk
of the international community. Norms that do not have the support of the most
powerful will always be shaky, and their codification into law might prove
impossible, but one should not underestimate the capacity of the more powerful
to adjust in the face of changing circumstances. In this case naval interests could
be overcome by economic or political arguments and lobbies. If, as was suggested
earlier, the territorialization of coastal zones becomes irresistible (and restricting
the activities of foreign warships might well prove a very popular step), this trend
would become an international reality that it would be difficult for the super-
powers to ignore.

Naval Diplomacy and Arms Control: The Effects of Creeping Jurisdic-
tion. Assuming an irresistible drift towards a more restrictive regime, we should
now examine the implications for naval diplomacy (the use of warships in support
of foreign policy) and for the increasingly confused and maligned concept of arms
control.

Naval diplomacy. The almost unanimous opinion in naval circles is that a more
restrictive LOS regime would seriously hamper naval mobility, and hence would
be undesirable. In contrast, it can be argued that while a more restrictive regime
would certainly pose many new problems for major navies, it would also provide
new challenges and opportunities.° Indeed, it can be argued that a new and more
sensitive patchwork of maritime jurisdiction would not hobble naval diplomacy
but would in fact rescue it from some of its difficulties in recent years, where it
seems to have suffered somewhat as a signaling device.

Jurisdictional changes will open up new diplomatic possibilities for warships.
Opportunities will be present for both supportive and coercive signaling, and all
the gradations between. Naval displays in friendly waters will take on more
significance because of the increased “national” feeling about such waters, and
so this traditional usage will be enhanced. Similarly, there will also be more scope
for coercive uses. There will be new boundaries to cross, and these will entail
political, legal, economic, and diplomatic costs, not to mention the possibility of
facing physical opposition. The territorialization of the sea will bring about new
restrictions, but this very development will enhance the importance of naval
diplomacy. Naval diplomacy will be used less, but it will be more visible.

In future, the problem will not be whether opportunities will exist for a
renewal of naval diplomacy, but whether and how they can be exploited. We


Hu and Oliver 181

contiguous seas, and extending national claims in contiguous seas, along with a
certain portion of the diplomatic mission which includes negotiating from
strength, manipulating situations and atmosphere, and demonstrating national
prestige.

With this functional approach small navies can, therefore, be tentatively
defined as those navies that are capable of performing a part or all of the policing,
conventional deterrence and defense functions, as well as some degree of naval
diplomatic functions with limited geographical and maneuvering reach within
coastal and/or contiguous-sea waters. It will be shown below that these functions
are precisely those required by the 1982 LOS Convention for a coastal State to
protect its national maritime interests within its 200-mile exclusive economic
zone. Of course, this definition of small navies, based on the correlation between
naval power and naval functions, has its own conceptual limitation—a limitation
deriving from the advances of contemporary technology. Nevertheless, the value
of this definition is that it conceptually ties the physical capabilities ofa navy with
the potential functions it might perform.

The 1982 LOS Convention and the Uses of Naval Forces

Since the Third United Nations Conferences on the Law of the Sea convened
in 1973, scholars have argued endlessly about the nature of the 200-mile exclusive
economic zone—one of the most profound new elements formulated and
incorporated in the resulting Convention.

D. P. O’Connell noted that “the EEZ is essentially an area of high seas which
has now become subject to certain limited jurisdictional rights ‘which are in the
nature of police rights rather than sovereignty’ . . . [and] the EEZ is ‘high seas,
and superimposed on that you have certain coastal State rights with respect to
[the] enjoyment and protection of marine resources’ . . . the residual character
of the EEZ is high seas.”"? While arguing that “the EEZ concept has been
appropriately described as ‘a zone sui generis,’ since it is neither high sea nor
territorial sea as normally understood,” Booth views the EEZ as possessing the
“emerging character of territorial sea”! and characterizes the legal and practical

evolution of the EEZ concept as “creeping jurisdiction,” “ocean enclosure
movement,” or “territorialization.”

Some argue that 32 percent of the world’s oceans falling into national
jurisdiction due to the EEZ establishment will inevitably confine the
maneuyerability of global navies and, thus, their strategic and diplomatic mis-
sions.'® Booth, on the other hand, argues that this restriction arising from the
law of the sea regime is only a necessary, not a sufficient, condition for a more
strained maritime environment for global navies. He further claims that global
navy States, more often than not, enjoy a stronger position, both diplomatically
and politically, over other coastal states; moreover, the “psycho-legal” boundaries


Chapter 26

Reflections on Terrorist Havens*

Robert A. Friedlander

Terrorism does not depend on the existence of havens for terrorists but would not have
been as prevalent nor extensive a phenomenon as it has been, absent those havens. This and
the terrorist threat to world public order are generally agreed. Little else, not proscriptive
measures nor even definitions, is agreed.

Any group of extremists, however justifiable some of their grievances may be, can
thus, through hijacking of aircraft or kidnapping of foreign diplomats, receive
international attention, remain unpunished, involve innocent people, and sow the
seeds of international anarchy.

Secretary-General U Thant!

“This has been a terrifying year.”” Although intended to apply only to the
domestic political scene, the observation of Italian Communist Party First
Secretary, Enrico Berlinguer, can just as appropriately refer to the current state
of international terrorism. On the one hand, the numerical trend of known
terrorist activities appears to have taken a downturn.’ On the other hand, the
level and intensity of terror violence have continued to escalate, notwithstanding
an apparent reduction in the number of overall incidents. Terrorism in a sense
has become commonplace throughout the world, so that an ordinary hijacking
or bombing no longer has any really significant effect upon the audience at which
terrorist acts are invariably directed. Consequently, there has been an escalation
in the severity of terror violence in order to make it more dramatic and thereby
to recapture the attention of the media and to be reimpressed upon the public
imagination.

Four bloody events stand out during 1978: the kidnap-murder of former
Italian Premier Aldo Moro;* the P.L.O. massacre of 34 tour bus passengers near
Tel Aviv;? the Sandinista forcible seizure of the Nicaraguan National Palace;°
and the, murderous attack by Rhodesian guerrillas upon a defenseless civilian
airliner.’ The latter two episodes must be considered “successful” in that the
perpetrators made good their escape to havens. The Zimbabwean terrorist

* Reprinted from the Naval War College Review March-April 1979.


PART FIVE

LAW OF WAR


110 Readings on International Law

Superficially, the attractions of controlling strategic ASW are considerable.
But most arms control proposals are like icebergs, with most of their obstacles
hidden from immediate view. This is the case with strategic ASW. It has made
no practical progress. The idea has floundered on the difficulty of distinguishing
between so-called tactical and so-called strategic ASW. NATO has a continuing
interest in improving ASW techniques in order to protect convoys.

No progress in this form of arms control is foreseeable as long as the problem
is conceived as a matter of making distinctions between tactical and strategic
ASW. In ASW the systems, techniques, and ideas developed for one are
transferable to the other. But there is one possible way forward, and that is
through distinctions based on geography rather than missions. An ASW disengage-
ment scheme faces many obstacles, but this approach offers more promise than
other schemes. The ASW disengagement scheme proposed below is based on
the idea of prohibiting ASW in the EEZs of the superpowers (ASWEEZ for
short). The scheme would effectively demilitarize the EEZs of the superpowers
for all but their own and allied naval activity. To be effective it would therefore
require a big conceptual jump, especially on the part of naval establishments.

Before discussing other obstacles facing ASWEEZ, it is necessary to identify
the factors that make it worth serious consideration:

The potential for Soviet interest in ASWEEZ: The Soviet Navy has become
increasingly worried about the development of U.S. ASW capabilities. In recent
years an important element of Soviet naval activity has been devoted to protecting
its SSBN force in the Barents Sea. With the Delta-class submarine, and its
associated missiles (the SS-N-8 and SS-N-18), the Soviet Union can hit all the
U.S. homeland from the Barents Sea. It is therefore unnecessary for this type of
submarine to leave the EEZ in order to discharge its strategic mission. In time
the Yankee-class submarine will be progressively replaced by classes with longer-
range missiles (the Yankee’s SS-N-6 and SS-NX-~17 have ranges of 1,750 nm and
3,000+ nm respectively). This will mean that it will not be necessary for any
Soviet submarines to leave the Barents Sea in order to be in a suitable firing
position.

A scheme to prohibit U.S. strategic ASW in the Barents Sea might therefore
be welcomed by Soviet strategists because this threat has grown and helped shape
Soviet naval developments since the late 1960s.'> The codification of a Barents
Sea “sanctuary” or “bastion” would be in line with the direction of present
doctrine, with its SSBN protection mission. The main disadvantages for the
Soviet Union in such a scheme would appear to be the relative geographical
concentration of its SSBN potential and the relative shallowness of the Barents
Sea. These need not be insurmountable obstacles given the huge area enclosed
by the Soviet 200-mile zone (an area that makes the MX racetrack look like a
sitting duck). In addition, these marginal disadvantages would have to be set


Hall 365

67. Talbot v, Seeman, 5 U.S. (1 Cr.) 1 (1801); Bas v. Tinghy, 4 U.S. (4 Dall.) 37 (1800).

68, See KEYNES, UNDECLARED WAR: TWILIGHT ZONE OF CONSTITUTIONAL POWER (1982). See
also Testimony of John Norton Moore, “Congress, the President, and the War Powers: Hearing Before the
Committee on Foreign Affairs, House of Representatives,” 91st Congress, 2d Session (June 25, 1970); Moore,
‘The National Executive and the Use of the Armed Forces Abroad, 21 Naval War College Rev. 28 (1969).

69. See, e.g., Emerson, The War Powers Resolution Tested: the President's Independent Defense Power, 51 Notre
Dame Lawyer 187, 192 (1975).

70, I RECORDS at 318.

71, See generally BERDAHL, WAR POWERS OF THE EXECUTIVE IN THE UNITED STATES 58-77

(1921).
‘ 7 8 F.Cas, 111 (No. 4186) (C.C.S.D.N.Y. 1860).

73. The Prize Cases, 67 U.S. 635, 668 (1863) (upholding President Lincoln’s blockade of Confederate
ports), See also U.S, v. Curtiss-Wright Corp., 299 U.S, 304, 319-320 (1936); Myers v. U.S., 272 U.S, 52 (1926).

74, The Prize Cases, 67 U.S. 635 670 (1863). See also In re Neagle, 135 U.S. 1, 64 (1890).

75, BERDAHL, WAR POWERS OF THE EXECUTIVE IN THE UNITED STATES 62-63 (1921) (quoting
FisH, AMERICAN DIPLOMACY 83-84). This action by President Washington exceeded the bounds of the
Act of September 29, 1789, ch. 25, 1 Stat. 95, 96, granting the President authority to call forth the militia to
protect frontier settlers from Indians.

76. Letter to James Madison, September 6, 1789, 15 THE PAPERS OF THOMAS JEFFERSON 392, 397
(Boyd ed. 1958).

77. 1 MESSAGES AND PAPERS OF THE PRESIDENTS 1789-1897, 326-327 (Richardson ed. 1899). See
2 Stat. 129 (1802).

78, W. GOLDSMITH, I GROWTH OF PRESIDENTIAL POWER: A DOCUMENTARY HISTORY
373-374 (1974) (citing STATE PAPERS AND DOCUMENTS OF THE UNITED STATES 78-78 (1814); Sofaer,
‘The Presidency, War and Foreign Affairs: Practice Under the Framers, 40 L. & Cont. Prob. 12, 25 (1976) (citing 1
NAVAL DOCUMENTS RELATED TO THE UNITED STATES WARS WITH THE BARBARY POWERS,
465-467 (1939).

79. The Constitution expressly grants the individual states an analogous power to act militarily under
exigent circumstances, U.S. CONST., Art. I, Sec. 10, cl. 3 (“No state shall, without the consent of
Congress... engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.”).
See also Articles of Confederation, Art. VI (“No state shall engage in any war without the consent
of... Congress... , unless such state be actually invaded by enemies, or shall have received advice of a
resolution being formed by some nation of Indians to invade such state, and the danger is so imminent as not
to admit of a delay till the... Congress... can be consulted .. .")

80, Martin v, Mott, 25 U.S. (12 Wheat) 1, 28 (1827).

81. Jd, at31.

82, The Prize Cases, 67 U.S, 635, 670 (1863) (emphasis original).

83. Id,

84, U.S. CONST., Art. I, Sec. 8. See Glennon, Strengthening the War Powers Resolution: The Case For
Purse.Strings Restrictions, 60 Minn, L, Rev. 1 (1975).

85, Congress did this on several occasions during the Viemam War. See, eg., Defense Procurement
Authorization Act, P.L, 91-121, 83 Stat. 204 (1969); Defense Appropriation Act 1970, P.L. 91-171, 83 Stat.
469 (1969); Defense Procurement Act, P.L. 91-441, 84 Stat. 905 (1970); Special Foreign Assistance Act., P.L.
91-652, 84 Stat, 1942 (1970); Foreign Military Sales Act Extension, P.L. 91-672, 84 Stat. 2053 (1970);
‘Supplemental Appropriations Act of 1973, P.L. 93-50, 87 Stat. 99 (1973); Supplemental Appropriations Act,
P.L, 93-52, 87 Stat, 130 (1973).

86. U.S, CONST., Art. 2, Sec, 4.

87. Van Alstyne, Congress, the President, and the Power to Declare War: A Requiem for Vietnam, 121 U. Pa. L.
Rev. 1, 5 (1972); HENKIN, FOREIGN AFFAIRS AND THE CONSTITUTION 81 (1972).

88, Il RECORDS at 319.

89, HENKIN, supra n, 87 at 105.

90. This is the problem the War Powers Resolution was intended to solve. However, the War Powers
Resolution’s only pre-conflict requirement on the President is “consultation” with Congress. See Hall, War
Powers By The Clock, 113 U.S. Naval Institute Proceedings 36 (September 1987).

91. “Helvidius” Number 4 (14 September 1793), 15 THE PAPERS OF JAMES MADISON 108 (Mason,
Rutland and Sisson ed. 1985).

92, 24 US. at 32.

93, One commentator has suggested that the President “should obtain congressional support in advance
for military action that will probably require congressional action, as by appropriations, before it is completed.”
‘Wright, The Power of the Executive to Use Military Forces Abroad, 10 Va. J. Int. L. 1, 49 (1969). The political
wisdom of this statement is self-evident. However, nothing in the Constitution suggests that such a step is



886 Readings on International Law

56. Joan Brace, Book Review, 11 Int'lJ. Aff. Stud. 288, 289 (1978). See also Smith, International Terrorism:
A Political Analysis, 31 YEAR BOOK OF WORLD AFFAIRS 138, 155-157 (1977). The American legal view is
definitely contra, See Comment, Criminal Responsibility and the Political Offender, 24 Am. U.L. Rev. 797 (1975).

57. See the instructive commentary of E. McWhinney, pp. 93-101.

58. 1 U.N. Doc.S/12191, 1976.

59, Cé Lillich and Paxman, State Responsibility for Injury to Aliens Occasioned by Terrorist Acts
ULL. Rev. 217 (1977); Friedlander, supra n. 52.

60. U.N. Press Release, SG/SM 1333, September 1970.

61. “Those Cheers in Managua,” Chicago Tribune, 26 August 1978, p. 8:1.

62. The phrase is that of BELL in A TIME OF TERROR: HOW DEMOCRATIC SOCIETIES RESPOND
TO POLITICAL VIOLENCE. The international linkage of terrorist groups is clearly, if not convincingly,
identified by Claire Sterling, The Terrorist Network, The Atlantic 37-47 (November 1978). See also DEMARIS,
BROTHERS IN BLOOD: THE INTERNATIONAL TERRORIST NETWORK (1977). Although terrorist
linkage is an international reality, the existence of a widespread, centrally coordinated terrorist network has yet
to be proven in fact.

63. Hoffer, Works and Days, Harper’s 78 (October 1978).

64, MILANO, THE PORTABLE DANTE 148 (1962).

5, 26 Am.



Robertson 17

Rear Admiral Robertson retired from the Navy in 1976 following an assignment as the Judge
Advocate General of the Navy. He was serving as the Charles H. Stockton Professor of International
Law at the Naval War College at the time this article was written.

Notes

1, Baxter, Introduction to International Law, in LILLICH & MOORE, 61 U.S, NAVAL WAR. COLLEGE
INTERNATIONAL LAW STUDIES, READINGS IN INTERNATIONAL LAW FROM THE NAVAL WAR
COLLEGE REVIEW 1947-1977 at 1 (1980).

2. Constitution of the Postal Universal Union with Final Protocol, Vienna, 1 January 1966, 16 UST
1291, TIAS 5881, 611 UNTS 7. Additional Protocols were adopted in 1971, 1974, and 1984,

3. Supra n, 1.

4. Hudson, ‘Legal Foundations of International Relations, in LILLICH & MOORE, 61 U.S. NAVAL WAR
COLLEGE INTERNATIONAL LAW STUDIES, READINGS IN INTERNATIONAL LAW FROM THE NAVAL
‘WAR COLLEGE REVIEW 1947-1977 at 57 (1980).

5, Statute of the International Court of Justice, Article 38, San Francisco, 26 June 1945, 59 Stat. 1055,
‘T.S, No, 933, 3 Bevans 1179, All members of the United Nations are automatically parties to the Statute of
the Court.

6, Filatiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980).

7, LAUTERPACT, 1 OPPENHEIM’S INTERNATIONAL LAW 641 ( 8th ed. 1957).

8, Supra n. 6.

9, Convention on the Seulement of Invesment Disputes between States and Nationals of Other States,
‘Washington, 18 March 1965, 17 UST 1270, TIAS 6090, 575 UNTS 159.

10. Convention on the Recognition and Enforcement of Foreign Arbitral Awards, New York, 10 June
1958, 21 UST 2517, TIAS 6997, 330 UNTS 3. This convention has over eighty parties,

11. United Nations Convention on the Law of the Sea, U.N. Publication Sales No. E.83.V.5. As of the
writing of this article in January 1992, fifty-one States had ratified. (The Convention has since then entered
into force on 16 Nov 1994.)

12. United Nations Charter, Article 27, San Francisco, 26 June 1945, 59 Stat. 1031, T.S. No. 993, 3
Bevans 1153,

13. DINSTEIN, WAR, AGGRESSION AND SELF-DEFENSE 179 (1988).

14, Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United
States of America) (Merits), 1.CJ. Reports 1986, at 4 (eprinted in LL.M. at 1023, Sept. 1986).


368 Readings on International Law

directed toward protecting the 35,000 Americans in Panama, combating the drug
transshipment trade from Colombia, which was being orchestrated in Panama
City, and ensuring that the operation of the Canal remained secure.

Our concern had grown in May 1989 when opposition candidates on a slate
headed by Guillermo Endara in the national election appeared to have beaten
the Noriega puppet-slate by a wide margin. Noriega quickly nullified the
election. Memories remain fresh of Second Vice President-Elect Guillermo
Ford’s brutal beating by thugs from the “Dignity Battalions” on the day following
the national elections.

Harassment of U.S. military personnel and their dependents increased sig-
nificantly after the election. On Friday, 15 December 1989, General Noriega
declared his military dictatorship to be in a “state of war” with the United States.
This followed a declaration by his puppet regime that he was “Maximum Leader”
of the Panamanian people. Noriega’s declaration of war was coupled by not-so-
veiled threats against Americans, including statements to the effect that he looked
forward to seeing U.S. corpses floating in the Panama Canal.

On 16 December, forces under his command shot and killed an unarmed.
Marine Corps officer (1st Lieutenant Robert Paz) and wounded another. Both
were assigned to U.S, forces in Panama pursuant to the Panama Canal Treaty.
Shortly after that incident, a naval officer similarly assigned and traveling with
his wife in Panama City was arrested without cause and brutally beaten, His wife
‘was interrogated and then threatened with sexual abuse.

Believing that this pattern of violence against U.S. citizens would continue,
President Bush acted to protect U.S. lives and interests and to restore democracy
in Panama on behalf of the legitimately elected Panamanian government.

Application of International Law

The law supporting U.S. intervention can be found in both international
agreement and custom. The cornerstone of the law regulating coercion between
States is found in the minimum world order system represented by Articles 2(4),
2(7) and 51 of the U.N. Charter.’ The provisions of Article 2 preclude the use
of armed force by one State against another. The provisions of Article 51
authorize one exception, the inherent right to use military force in self-defense.
The United Nations Charter system requires strict accountability, however,
before the projection of force into the territory of another State can be justified.

The U.S, intervention in Panama must be tested against each of the several
conditions required to justify the use of military force in self-defense under Article
51. The first condition is the existence of an armed attack, or the imminent threat
of armed attack upon the territory or citizens of the United States. In December
1989, U.S. citizens lawfully resident in Panama pursuant to Panama Canal Treaty
provisions, their property, and an international waterway vital to U.S. national


548 Readings on International Law

which provides that “enemy warships and military aircraft, including naval and
military auxiliaries, are subject to attack, destruction or capture anywhere beyond
neutral territory. It is forbidden, however, to refuse quarter to any enemy who
has surrendered in good faith.” This simple statement, however, does not
provide a full answer to the dilemma ofa commander who, like the commanding
officer of the Nicholas, faces an ambiguous situation in which the enemy’s
intentions are not clear. How does he determine whether the enemy’s sign of
surrender is genuine and unconditional?

The Manifestation of an Intent to Surrender

As the board of investigation that inquired into the Nicholas incident observed,
the “CO was confronted with a unique and ambiguous situation; i.e., some
indicia of an intent to surrender by one individual on two separate platforms, by
an enemy who is know to have abused the white flag to gain military advantage,
where the TAO log notes the presence of both ‘white flags’ and ‘possible gunner’
inan oil field where the platforms are relatively close and offer overlapping fields
of fire.”

Furthermore, the report continued, “under the principles of the Law of Naval
Warfare, there is no requirement to accept surrender of an enemy platform
(warship or submarine) unless the signal of surrender carries with it the authority
of the command. Under the Law of Naval Warfare, an enemy platform is viewed
as a unit; consequently when that unit surrenders, there must be an indication
that it is the unit that is surrendering, not just one individual. Traditionally, the
Law of Naval Warfare recognizes the striking of colors as a command's indication
ofan intent to surrender. Similarly, under the Law of Land Warfare, a white flag
displayed by an individual may signify only that [that] individual desires to
surrender, The opposing force is obliged not to fire on that individual, and to
receive his surrender, but is not required to cease firing at other opposing forces
who have not indicated an intent to surrender until it is reasonably clear the
indication of surrender is a command or organizational indication and applies to
the opposing force as a whole. Evidence of this intent might be the dispatch of
a spokesperson to negotiate a cease fire, or all troops ceasing fire and throwing
down their weapons.”?>

As stated in the U.S. Navy’s operational law handbook, a warship indicates a
readiness to surrender “by hoisting a white flag, by surfacing (in the case of
submarines), by stopping engines and responding to the attacker's signals, or by
taking to lifeboats.’*® The situation with aircraft is different. NWP 9 notes that
“disabled enemy aircraft in air combat are frequently pursued to destruction
because of the impossibility of verifying their true status and inability to enforce
surrender. Although disabled, the aircraft may or may not have lost its means of
combat. Moreover, it still may represent a valuable military asset. Accordingly,




Wachtmeister 527

‘When World War I ended, Congress again shunned away from involvement
in European affairs and rejected the fourteen points suggested by President
Wilson. This restrictive attitude in U.S. foreign policy, exemplified by the
rejection of the League of Nations in 1920, continued through the period
between the wars. The definitive breaking point for the policy of neutrality of
the United States can be set at the Lend Lease Agreement with Great Britain on
March 11, 1941, when Congress accepted the proposal of President Roosevelt
to come to the aid of the United Kingdom and other threatened democracies.

From then on, it is proper to regard the United States’ policy toward the rest
of the world as one of the two superpowers, where involvement in the affairs of
various regions has indeed been significant. However, it is interesting to note
what happened when the United States actively engaged itselfin the preservation
of the freedom of navigation in the Persian Gulf. It was stated that the U.S. Navy
would protect American shipping in the gulf—later including reflagged former
Kuwaiti tankers—while at the same time the United States would be neutral
toward the belligerents involved in that war.

At this juncture I would like to emphasize the difference between the
evolution of the United States’ and Swedish security policies respectively. While
the United States’ interest in staying away from European affairs contained a tint
of isolationism, the Swedish policy of neutrality is paired with a deep commit-
ment to full participation in the affairs of the world community. The basic aim
of Sweden’s policy of neutrality is to make credible our intention to be neutral
in times of war, so that belligerents respect that neutrality and Sweden can be
spared the scourge of war. It is not an effort to climb to high moral ground, but
a means by which Sweden endeavors to safeguard its independence and national
security. This policy of neutrality has three main components: nonparticipation
in alliances; a strong defense; and a foreign policy that makes credible our
intentions in case of war.

Nonparticipation in alliances is, of course, a sine qua non for the credibility
abroad that Sweden will be neutral in the case of war. Sweden’s security policy
is a well-established fact in the Nordic region: Iceland, Norway and Denmark
are members of NATO; and Sweden and Finland, each in its own way, conduct
a policy of neutrality. The Nordic States interact on the basis ofa common history
and cultural, social, linguistic and religious affinities. Despite the different
orientations in their security policies, each has contributed to the relative calm
in the Nordic subregion of Europe, and each bears a responsibility for that stability
to continue. It is in this context that one can see the importance of Sweden
continuing its policy of neutrality, because were it to be abandoned, it would in
a stroke change the political map of Europe.

Recent developments in the European Community (EC) have influenced the
debate on future Swedish options. Parliament has stressed that Sweden should
work for a Western European common market encompassing all countries in


142 Readings on International Law

likelihood of Soviet distortion of the concept that could severely disrupt critical
allied shipping or naval operations.

The problems of negotiating the partition of strategic bodies of water with
the Soviets during periods of extreme tension, and the risk of troublesome
proliferation of the use of cordon sanitaire by Third World nations could both
be ameliorated through negotiations during peacetime. Bilateral talks with the
Soviet Union concerning the full range of issues surrounding the concept of
cordon sanitaire and the unique danger posed by tattletale targeting units could
lead to a formal agreement or understanding which would spell out limits and
procedures governing the use of cordon sanitaire and the partitioning of restricted
areas of dual interest. Ideally, such an agreement would prohibit the shadowing
of combatant units even in peacetime, making specific cordon sanitaire declara-
tions unnecessary. ,

It is perhaps too optimistic to expect the Soviet Union to agree formally to
(or even seriously to discuss) the concept of cordon sanitaire, since the loss of
their tattletales would greatly reduce their preemptive strike capability. However,
even if no agreement were reached, the Soviets would be aware of the U.S.
intention to use cordon sanitaire, and this awareness would be a stabilizing
influence, reducing the chance of misunderstanding when a U.S. cordon sanitaire
is, in fact, declared.

The United States should also push for legal recognition of cordon sanitaire
as a necessary defensive measure in international forums, such as Law of the Sea
Conferences and the United Nations. By stressing the intolerable threat posed
by even an unarmed tattletale in this age of long-range, high-speed, extremely
destructive missiles, together with the already acknowledged right of a nation to
defend itself against an imminent threat, the United States could make a
convincing case for the formal legalization or recognition of this concept. Such
formalization would undoubtedly place specific conditions and restrictions on
the legal use of cordon sanitaire, thereby reducing the potential for abuse by the
Soviet Union and Third World nations.

Surveillance Requirements. Argument against Cordon Sanitaire: Very strict
surveillance in all three media—surface, subsurface, and air—would be necessary
to prevent Soviet intrusion into the cordoned area even after it was established.
Surveillance requirements in areas of extremely dense air and surface traffic could
quickly overwhelm the assets available. Sufficient numbers of E-2C (for air and
surface surveillance), F-14 (for intercepting unidentified air contacts), and S-3
(for ASW search) aircraft to enforce the cordon sanitaire in such areas would
probably be beyond the capability ofa single carrier. The battle group would be
particularly vulnerable to intrusion at night by surface units using deceptive
lighting and other devices.


Hall 359

“Should the Dey of Tripoli have declared war, (as he has threatened) against
the United States, you will then proceed direct to that port, where you will lay
your ship in such a position as effectually to prevent any of their vessels from
going in or out.”78

If anything is clear from the message from Secretary Smith to Commodore
Dale, it is that President Jefferson viewed his authority as extending to preemptive
war making against foreign powers that had displayed hostile intent. President
Jefferson’s view thus appears similar to President Reagan’s. Neither President
‘was required to obtain congressional authorization prior to the employment of
armed force to defend U.S. citizens or property from imminent threat.

The rationale for this rule is that the exigency”? of circumstances justifies the
President’s action. Interpreting the Militia Act of 1795, the Supreme Court stated.
in 1827: “Weare all of opinion, that the authority to decide whether the exigency
has arisen, belongs exclusively to the president, and that his decision is conclusive
upon all other persons. We think that this construction necessarily results from.
the nature of the power itself. . .. The power itselfis to be exercised upon sudden
emergencies, upon great occasions of state, and under circumstances which may
be vital to the existence of the Union.”®

The Court’s reference to “power” is not free from ambiguity. On the one
hand, the Court held that the Militia Act of 1795 conferred on the President
statutory power to determine the existence of a national emergency. Thus the
Court may have intended to limit its holding to the President’s statutory powers,
granted by Congress. On the other hand, the Court found that the President as
chief executive and commander in chief “is necessarily constituted the judge of
the existence of the exigency, in the first instance, and is bound to act according
to his belief of the facts.”®! The most natural interpretation of the opinion is that
the Court found the President so empowered under both the Militia Act of 1795
and the Constitution. The Supreme Court was more clear in 1863 when the
same question arose in the context of the Civil War: “Whether the President in
fulfilling his duties, as Commander-in-chief, in suppressing an insurrection, has
met with such armed hostile resistance, and a civil war of such alarming
proportions as will compel him to accord to them the character of belligerents,
is a question to be decided by him. . . .”® Thus the President is constitutionally
authorized not only to defend against an imminent threat to the lives or property
of USS. citizens, but also to determine whether a threat is sufficiently imminent
to justify the use of force without a congressional declaration of: ‘war.®?

The pronouncement of the courts do not suggest, however, that the
President’s power to wage defensive war unilaterally is without limit. Since
Congress exercises the power of appropriation,®* Congress can refuse to fund
disapproved military activity undertaken by the President.®> Moreover, Congress
possesses the ultimate weapon: impeachment of the President for “high crimes
and misdemeanors.” However, although a few commentators have read


Jacobson 165

beyond the territorial sea to a maximum of 200 nautical miles from shore. Since
most islands, as well as the continents, can form the bases for EEZs, worldwide
EEZs will blanket about forty percent of the world ocean.

But, given the proper geological circumstances, a coastal nation’s resource
jurisdiction can extend even further seaward: the new treaty’s legal definition of
continental shelf'” covers the entire geological continental margin (with some
extreme outer limits), which means that some nations will have jurisdiction over
natural resources of the seabed one hundred or more miles beyond the outer
edge of the EEZ. However, the 1982 Convention also explicitly guarantees
freedom of navigation and overflight within EEZs and in the waters above the
“continental shelf.”

Unlike the 1958 Convention on the Territorial Sea and the Contiguous Zone,
the UNCLOS III treaty does set a maximum breadth for the territorial sea:'® twelve
nautical miles. Within this zone, innocent passage (defined at considerable length
in the new treaty) by foreign vessels is allowed. Again, as in 1958, submerged
passage and overflight are noninnocent. The impact on maritime nations of these
rules is crucial. Universal recognition of twelve-mile territorial seas would mean
that more than 100 straits—several of them such vital chokepoints as Gibraltar
and Malacca—will be subject to the innocent passage regime; submarines would
be required to surface-and show their flags and aircraft could not overfly without
permission of at least one of the states bordering the strait. The 1982 treaty,
however, recognizes important exceptional niles for straits,'° including Gibraltar
and Malacca, that are “used for international navigation.” For these straits, the
treaty would establish transit passage rights for foreign traffic. These rights, which
the treaty balances against the interests of the strait-bordering nations, would
include the right of submerged transit and of overflight.

Asimilar accommodation of international and local interests was accomplished
by UNCLOS III for archipelago nations. These States, composed entirely of
island groupings, prefer to draw baselines around the outer edges of their
outermost islands and claim the waters thus enclosed as internal waters. The 1982
Convention creates the concept of archipelagic waters” for these areas. The
archipelagic state will have sovereignty over its enclosed waters, but foreign
vessels and aircraft will be allowed transit rights (termed the “right of archipelagic
sealanes passage”) nearly identical to the rights of transit passage through straits
used for international navigation.

The high seas, shrunken in the 1982 treaty to a mere 60 percent of its early
20th-century existence, continues to exhibit its traditional characteristics—at
least in the water column above the seafloor. Beyond the territorial sea, beyond
the EEZ, beyond the legally defined continental shelf and beneath the planet’s
deep waters, lies The Area.”' This is the deep seabed beyond national jurisdiction,
the vast submerged realm that, according to the 1982 Convention of the Law of
the Sea, is the “‘common heritage of mankind.” The new treaty would establish


FOREWORD

The International Law Studies “Blue Book” series was initiated by the Naval
‘War College in 1901 to publish essays, treatises and articles that contribute to
the broader understanding of international law. This, the sixty-eighth volume
of the series, consists of writings on international Jaw which have appeared in
the Naval War College Review during the period 1978-1994.

This compilation of articles, essays and reviews follows an earlier two-volume
work published in 1980 which comprised readings appearing in the Review
from 1947 to 1977. Those two volumes, 61 and 62 of this “Blue Book” series,
were edited by Professor John Norton Moore (who had recently served as U.S.
Ambassador to the Third United Nations Conference on the Law of the Sea)
and Professor Richard Lillich (a former Charles H. Stockton Professor of
International Law at the Naval War College), both of the University of Virginia
School of Law. Professors Moore and Lillich compiled those readings in a cogent
and readily accessible format for use by students and practitioners of international
law.

Volume 68 continues in that tradition, bringing together some of the best
writings on international law from the Naval War College Review in the
intervening seventeen years. Professor Moore again serves as coeditor for this
volume and is once more joined in that effort by a University of Virginia
colleague—Professor Robert F. Turner—also of the School of Law. Professor
Turner occupied the Stockton Chair of International Law at the Naval War
College during the 1994-95 academic year.

The readings in Volume 68 reflect an era of profound change, both in
international law and in the world community; and the important field of oceans
Jaw has perhaps typified that trend. Indeed, as the articles in Part Two will
demonstrate, the clarification and codification of the law of the sea during this
period has proceeded more rapidly than during any comparable period in history.
Considerable progress has also been made in the struggle against terrorism, in
the law of war, and in other areas addressed in the material which follows.

The articles are conveniently arranged under general headings in six Parts
(although several articles address more than one subject and have been assigned
by our editors to the one thought most appropriate); and in order to give the
reader a sense of the evolutionary process that has occurred in several of these
areas, they are arranged chronologically within each Part. Particularly in the law
of the sea area, some of the earlier articles may seem dated today—but they
reflect important thinking that will be of interest to readers seeking to understand
the profound geopolitical dynamics that have occasioned recent changes in the
law.


442 Readings on International Law

qualifications for piratical acts would go unfulfilled. Because of their explicit
extractive purpose, offshore extractive installations, with only a paucity of
conceivable exceptions, would be located within the territorial jurisdiction of
some coastal State. Continental shelves rarely extend seaward beyond the
200-nautical-mile EEZ delimitation; consequently, all activities on these plat-
forms would be subsumed under the jurisdictional purview of the appropriate
coastal State. Incidents of terrorism would not be any exception.

3. Offshore Maritime Terrorism and Coastal State Control. Coastal
State control over offshore facilities vis--vis terrorist threats should be viewed
in at least three lights: national regulation, maintenance of public order, and
national defense. Each of these responsibilities relates to the security of the
structure, and thus have important implications for effectuating antiterrorist
policies.

a. National Regulation. As defined, national regulation entails “the imposi-
tion of requirements on some aspect of the design, construction, operation or
maintenance of an offshore structure with which the owners or operators of the
structure must comply or be liable under civil law.’”® To be sure, the regulatory
authority possessed by a coastal State’s government provides a convenient vehicle
for protecting offshore structures.

Obviously, coastal State regulations could be fashioned in such a manner that
they would render offshore installation less vulnerable to attack. Specifically,
regulations could be designed purposefully to improve a structure’s physical
security by requiring builders to use reinforced materials that are more highly
resistant to explosives, as well as to enhance appropriate damage control systems;
and to improve administrative and inspection security systems that could more
expeditiously deter, dissuade, or detect an impending terrorist attack.”?

As previously noted, international law recognizes the right of each coastal State
to construct artificial islands or fixed platforms in the waters offits shores. In this
connection, national regulation of ofShore rigs and structures must be designed
prudentially and comprehensively to ensure that it encompasses a myriad of
relevant activities. Sale of mineral rights leases on the outer continental shelf;
conservation and management of continental shelf resources; approval of pipeline
conduits over and on the shelf region; domestic construction of vessels and
semisubmersible drilling rigs operating offshore; promotion of safety for life and
property on and under coastal waters; establishment of shipping lanes and vessel
traffic control patterns; creation and enforcement of environmental standards and
antipollution policies—all these are activities appropriate for regulation over-
sights by the national government. Even so, for offshore structures, most coastal
States have tended to deal with such regulation in a piecemeal fashion, i.e., by
applying disparate legislative provisions enacted at different times, often done
with unrelated purposes in mind.” The point to be underscored here simply is
that the welter of governmental agencies involved—many of which frequently


Rose 517

that hot wars grow increasingly impractical, the surreptitious and protean nature
of soft weapons will unfortunately encourage their use as an extension of war by
other means.

The biotechnological revolution has unfolded dangerous new possibilities, for
converting the basic processes of life into weaponry. Still in its infancy, this
revolution is likely to be a source of continuing surprises. From the standpoint
of national security, the United States must track these developments closely to
minimize the chance of a decisive trump card turning up in enemy hands. To
paraphrase Mao’s well-known maxim, future power may come from the mouth
of a test-tube as well as from the barrel of a gun.

Thus far, the national investment in biological defensive research has been a
pittance compared to the expenditures made for traditional military systems. As
discussed earlier, the deeper threat of biological agents lies not with formal use
on a battlefield, but rather in their potential to become extraordinary weapons
of stealth. Compared to the murky world of biological threats, nuclear weapons
have an aura of refreshing clarity. Both types of weaponry pose grave dangers to
USS. security. Unfortunately, however, America’s military ethos—centered
around engineering, hardware, and firepower—makes it difficult for us to grasp
the true strategic significance of soft weapons. Ironically, while the United States
contemplates spending a sizeable part of its national treasure on SDI, compara-
tively few resources are being channeled to close a serious defensive gap now
opening up along the biological frontier.

Our current international wrestling match over chemical weapons is only a
forerunner of the far harder bout to come. A revolution in biology is liberating
the life sciences and also unleashing the potential for bioweapons capable of nearly
infinite refinement. Decisions made now, or evaded, about how to cope with
the military implications of biotechnology, will cast a long shadow into the
future. At present, the problem is comparatively small but it could easily cascade
beyond control within a decade, Although the United States has begun to pay
more attention to military biology in recent years, our overall stance still suggests
a continuing inclination to whistle past the graveyard. If we fail to counter the
expanding threat of biological warfare, someday this metaphor could take on a
new and macabre meaning.

Commander Rose wrote this paper while attending the Naval War College. He received both
the Joint Chie& of Staff and Naval War College’s Richard G. Colbert prizes for this essay (under
another title).

Notes

1, See Hamm, Deterrence, Chemical Warfare, and Arms Control, Orbis 157 (Spring 1985).
2, Douglass, The Challenges of Biochemical Warfare, Global Affairs 156 (Winter 1988).
3, PILLER & YAMAMOTO, GENE WARS 113 (1988).


898 Readings on International Law

(0 The action of a State in allowing its territory, which it has placed at the disposal of another State,
to be used by the other State for perpetrating an act of aggression against a third State;

(@) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which
catry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its
substantial involvement therein.

6. Resolution 2780 (KXVI), United Nations, General Assembly, Official Records, Supplement No. 29,
26th Session, U.N. Document A/8429 136 (1972).

7. ld.

8. Resolution 3166 (XXVIII), United Nations, General Assembly, Offical Records, Supplement 30, 28th
Session, U.N. Document A/9030 (New York: 1974), p. 146.

9. Department of State Bulletin 155 (21 February 1977).

10. Resolution 3166 (XXVIII) at 148.

11. Id, at 145-146,

12. Id, para. 6, at 147.

13. Id,, para. 4.

14, U.N. Document 4/8791.

15. U.N. Document A/C.6/418.

16. Id,, at 40-41.

17. See Report of the Ad Hoc Committee on Terrorism, United Nations, General Assembly, Official
Records, Supplement No. 28, 28th Session, U.N. Document A/9028 at 48 (1974).

18. United Nations, General Assembly, Offial Records, Supplement No. 30, 27th Session, U.N. Document
A/8730 119 (1973).

19. Id, para. 10.

20. United Nations, General Assembly, Offdal Records, Supplement No. 28, 28th Session, U.N. Document
A/9028 (New York: (1973).

21. Id, at 20.

22. See Sixth Committee, Report, U.N. Document A/9410 (10 December 1973).

23. See Sixth Committee, Report, U.N. Document A/9947 (11 December 1974).

24, See Sixth Committee, Report, U.N. Document A/10465 (10 December 1975).

25. U.N. Document A/RES/31/102 (mimeo 19 January 1977).

26. Id., Preamble.

27. Id, para. 7.

28. Resolution 32/147, para. 7.

29. Agenda item 123. The Federal Republic of Germany introduced its draft resolution on 26 November
1966, A/C.6/L/10. It became U.N. General Assembly Resolution 31/103 (15 December 1976).

30. Resolution No. 31/105 (15 December 1976). See Report of the Sixth Committee, Drafting of an
International Convention Against the Taking of Hostages, U.N. Document A/32/467 (15 December 1977).

31. Resolution adopted by the General Assembly, Drafting of an Intemational Convention Against the
‘Taking of Hostages. This was reflected in Resolution 32/148 of (19 December 1977).

32. See Report of the Ad Hoc Committee on the Drafting of an Intemational Convention Against the
Taking of Hostages, U.N. General Assembly, Official Records, Supplement No. 39, 32nd Session, U.N.
Document A/32/39 (1977).

33, This became agenda item 129.

34, U.N. General Assembly Resolution No. 3034 (XXVII), U.N. General Assembly, Official Records,
Supplement No. 30, 27th Session, U.N. Document A/8730 at 119 (1973). See also General Assembly
Resolution on Aerial Hijacking or Interference with Civil Air Travel, Resolution No. 2645 (XXV), U.N.
General Assembly, Official Records, Supplement No. 28, 25th Session, U.N. Document A/8208 at 126-127
(1971).

35. Resolution 2645 (XXV), U.N. General Assembly, Official Records, Supplement No. 28, 25th Session,
U.N. Document A/8028 at 126 (1971).

36. See para. 7, Measures to Prevent International Terrorism Which Endangers or Takes Innocent Human
Lives or Jeopardizes Fundamental Freedoms, and Study the Underlying Causes of Those Forms of Terrorism
and Acts of Violence Which Lie in Misery, Frustration, Grievance and Despair Which Cause Some People to
Sactifice Human Lives, Including Their Own, in an Attempt to Effect Radical Changes. U.N. General
Assembly Resolution 32/147. U.N. Document A/RES/32/147 (mimeo 8 March 1978). See also text
accompanying n. 28.

37. U.N. General Assembly Resolution 32/148, U.N. Document A/RES/32/148 (mimeo 2 February
1978).

38, Committee on Relations with the Host Country, Report, U.N. General Assembly, Oficial Records,
‘Supplement No. 26, p. 12, U.N. Document A/31/26 (New York: 1976).

39. Id, at 22.


Webb 349

the capability for multiple missions. But all of this technology is meaningless
unless our commanders know that if they take a considered risk in the field, they
will be backed up at home. We must not use military force unless were are
prepared to see it through in a way that makes military as well as political sense.

Nor should we be confined, in the name of proportionality, to responding to
an attacker's aggression at the time or place of his choosing. Tit for tat responses
have their uses, but as we have learned over the past 35 years through our
frustration and suffering, these uses are narrow. The objective of military forces
is to prevail, to punish an attacker beyond his ability to respond yet again, to
exact a political and, at times, a human cost that will in fact deter future acts.

Our sea services, as I mentioned earlier, are the very symbol of our interna-
tional commitments. We have long been at the cutting edge of our country’s
actions abroad, Where we operate and how we operate cause us to be the most
exposed forces in this confused, semipolitical, semimilitary era of violent peace.
Our response to the challenge of this era is therefore of utmost concern to the
Nation. I have suggested that there are things we need to do. We must establish
a better balance between our political objectives and our military forces. We
must clarify for ourselves and for the world that we know when to shoot and
how much to shoot. And, above all, we must review the vital bond between the
commander in the field and the Nation at home.

The Nation must understand why our sailors and Marines are out there on
the far-flung edges of the world, what it is they are defending,and the value of
that effort. And our commanders must know that, above all, should they be
required to use force in this era of violent peace, while performing a military
mission, they will be backed by their leadership.

And, not incidentally, our political leaders must make the conscious judgment
that the introduction of military units carries with it the rather high risk that they
will be called upon to use force, and that the appropriate use of this force must
be ratified in advance.

These understandings would comprise the basis of a strategy that will address
the most troublesome aspect of our ability to deter. And this era might have less
violence and more peace.

James Webb, Jr. was serving as the Secretary of the Navy at the time he made this address to
the Naval War College. This article is a version of Secretary Webb’s address to the 1987 Current
Strategy Forum at the Naval War College.


192 Readings on International Law

Perhaps because it lacks a sound basis in either practice or the 1982 LOS
Convention text, Captain Sorokin’s rationale in support of a right of the coastal
State to restrict innocent passage to designated routes is a bit difficult to follow.
Ina nutshell, however, he seems to argue that since innocent passage exists solely
to enable passage through the territorial sea, the coastal State may require that
such passage, particularly for warships, take place only along the most direct
routes that have traditionally been used for international navigation. He then
argues further that by conforming to the designated routes within the territorial
sea, foreign warships may unequivocally demonstrate that their passage is “in-
nocent.”

These arguments, however, lack legal foundation. Nowhere does the 1982
LOS Convention declare that innocent passage must be limited to the shortest
possible routes. Furthermore, as noted above, Articles 21 and 22 give the coastal
State the authority to establish sea-lanes and traffic separation schemes in its
territorial sea only insofar as necessary to ensure navigational safety. The coastal
State is not empowered to establish sea-lanes solely under the guise of “security.”

From the proposition that a ship conforming to designated routes “confirms
that she is engaged in innocent passage and has not intruded into territorial
waters,”> Captain Sorokin then leaps to his fundamental conclusion: “Thus the
innocent passage of warships through territorial waters can be viewed as a
traversing of territorial waters of the coastal State over the shortest traditional
international shipping lanes or over routes established by the coastal State (along
recommended courses, lanes, or traffic separation schemes) especially designated
for the innocent passage of foreign ships, while complying with legislation of | the
coastal State and provisions of the 1982 UN Convention on the Law of the Sea.”®

It is not entirely clear whether Captain Sorokin believes that, as a matter of
international law, warship innocent passage can only occur along the shortest
international routes or specifically designated routes, or whether he believes that
the coastal State may lawfully restrict warship innocent passage to such routes.
‘Whatever the precise rationale, he clearly argues that where a coastal State has
designated such routes, a warship may not exercise innocent passage outside
them.

The U.S.S.R. has enacted domestic law consistent with this position. Article
13 of the Law of the Union of Soviet Socialist Republics on the State Frontier
of the U.S.S.R. of 24 November 1982 provides: “Foreign warships and under-
water vehicle shall enjoy the right of innocent passage through the territorial
waters (territorial sea) of the USSR in accordance with the procedure to be
established by the Council of Ministers of the USSR. 7

The Rules for Navigation and Sojourn of Foreign Warships in the Territorial
Waters (Territorial Sea) and Internal Waters and Ports of the U.S.S.R., approved
by the U.S.S.R. Council of Ministers decree of 28 April 1983, enumerates the
routes permitted for warships not entering internal waters and ports of the


McNeill 581

Uhkraine is a littoral State and has its own naval fleet, it also is a legal successor to
IncSea.

Nevertheless, the most important IncSea-type agreement is the original one.
Its usefulness as a confidence and security-building measure is evident. Its value
today to the United States and Russia as a conflict-avoidance and conflict-resolu-
tion mechanism is amply proven.

Mr. MeNéeill is the Senior Deputy General Counsel for International Affairs and Intelligence,
USS. Department of Defense.

Notes

1, See Honan, Mediterranean: Playing Chicken, in FIRE WHEN READY, GRIDLEY 319 (Honan ed. 1993).
For details of the negotiations, see Lynn-Jones, A Quiet Sucess for Arms Control, International Security 154-84
(Spring 1985).

2, Text reprinted in LL.M. 778-783 (1972).

3, Vice Admiral Leighton Smith, USN, Deputy Chief of Naval Operations (Plans, Policy & Operations),
(Speech to Participants in the Middle East Peace Process, U.S. Department of State, Washington, 12 May
1992),

4. As previously noted by the present author in Measures for Strengthening Mutual Guarantees of Non-Ag-
gression Among States, in STEPHEN & KLIMENKO, INTERNATIONAL LAW AND INTERNATIONAL
‘SECURITY 302 (1991).

5, 31 KEESING’S CONTEMPORARY ARCHIVES 33928 (1985).

6. Textin 28 LL.M. 877-895 (1989). See farther, Nagle, note, The Dangerous Military Activities Agreement:
Minimum Order and Superpower Relations on the World's Oceans, 31 Va. J. Int'l L. 125-144 (1990).

7. Text in 28 LLM. 1444-1447 (1989).

8 See further, Juda, Innocent Passage by Warships in the Territorial Seas ofthe Soviet Union: Changing Doctrine,
1 Ocean Devel. Int'l L. 111-116 (1990). Seealso Aceves, Diplomacy at Sea: U.S. Freedom of Navigation Operations
in the Black Sea, Naval War College Review 59-79 (Spring 1993).

9. ULN, Doc, A/CONF, 62/122, reprinted in LL.M. 1261-1354 (1982). The U.S. is neither a signatory
nor a party to the Convention. The U.S., however, regards the navigational provisions of the Convention as
being part of customary international law anyway, thus binding on both the U.S. and USSR (andits successors).

10. Carroll, Peace Comes to the Black Sea, Arms Control Today 22 (July/August 1990).
11. 14,


Finn 125

downturn in the rate of growth of oil consumption after 1973 soon made
continued construction of larger vessels (ultralarge crude carriers, ULCCs—ves-
sels in excess of 350,000 dwt) unlikely. The extension of the tanker route for the
largest VLCCs would also have required additional transportation capacity.°>

The Showa Maru accident in January 1975 led to a renewed call for action in
the region and in February the Prime Ministers of the coastal States held talks on
the tanker issue while at a meeting of the Association of Southeast Asian Nations
(ASEAN).*® The Prime Ministers agreed upon the concept of “underkeel
clearance” (UKC) as a basis for regulation for tankers, called for development of
a TSS for the Straits, and initiated technical consultations on these and related
issues, Technical and other difficulties again slowed the results of consultation in
the following years, which were punctured by the collision of Diego Silang. Ata
second conference of their Prime Ministers in February 1977, again atan ASEAN
meeting, the three governments finally agreed to a regulatory regime based on
arequired UKC of 3.5m throughout passage; establishment of special deep-water
routes (DWR) for vessels of 15m draught, in which no overtaking by them would
be allowed; adoption of TSS (separated traffic lanes in each main direction) in
three critical areas—at the One Fathom Bank, the Singapore Main Strait, and
the Phillip Channel (in the eastern part of the Singapore Strait, where the Straits
open out into the South China Sea); and operational recommendations, includ-
ing maximum vessel speed in critical areas (12 knots).

The coastal States’ adoption of UKC as the basis for limiting the passage of
larger vessels marked a significant turning point in mediating the divergent
interests among the coastal States themselves and between the region and outside
users.”” A capacity limitation, such as that earlier advocated by Indonesia, would
have rigidly excluded certain vessels regardless of their operating characteristics;
furthermore it could have been enforced relatively easily as vessel capacity is fairly
well known through shipping registers and the like. UKC is neither as clear in
concept nor as straightforward in application. First, there is disagreement over
the very meaning of the term UKC, i.e., whether UKC should be calculated so
as to make allowance for various errors and safety considerations and for vessel
“squat”—the tendency ofa large vessel’s draught to increase with speed. Second,
actual UKC is responsive to vessel design, load, trim, speed, and tidal fluctua-
tions—none of which are easily observable during passage or readily determinable
from published sources.

Aside from some technical concern about the proposed vessel routes (that
were submitted to the coastal States for further development”), the regional
proposal was well received by IMCO and in November 1977 IMCO’s Assembly
formally approved the TSSs and other rules for passage in the Straits.°? The action
of the coastal States will have significant positive effects on the safety of navigation
through the Straits by establishing well-defined and universal vessel routes,
including special DWRs, and recommending operational practices that will help


408 Readings on International Law

5 days, it is easy to picture New York almost completely paralyzed with numerous
incidents of looting, arson, and panic. The point here is that an “act of nature”
with the aid of human inefficiency produced a 2-day siege—a quite small but
trained paramilitary force could take the city of New York or any other large
metropolitan area off line for a considerable period of time.*®

A poignant encapsulation of the “decade of dismal terror” has been presented
by J. Bowyer Bell in his recent work, A Time of Terror”

All now know the long and grotesque litany of massacre. Lod-Munich-Khartoum-
Rome-Athens-Vienna. Now millions are familiar with the luminous dreams of
the obscure South Moluccans and the strange Japanese Red Army, with the
fantasies of the Hanafis and the Symbionese Liberation Army, and with the alphabet
of death—PFLP, FLQ, IRA. Carlos-the-Jackal is a media antihero, and Croatia is
now found in the headlines instead of in stamp albums. Anyone can be a victim,
can ride the wrong airline, take the wrong commuter train or accept the wrong
executive position abroad. While opening mail, passing a foreign embassy, standing
in an airport boarding line or next to a car, o1 attending a diplomatic reception,
any of us may draw a “winning” lottery ticket in the terrorist game. And everyone
is the target of the television terrorists, choreographing massacres for prime time.
After each crafted incident, terror still produces intense anguish and indignation,
a plea if not for vengeance then at least for effective action. The target-audience
has not become inured to violence. Repetition has established ritual, not ennui.
Sophocles never pales nor, so far, has the murder of innocents, brought to us
personal and close-up by the media.

Faced with what has been and recognizing what may well be, an attempt to
clarify, through a definitional process, the nature of terrorism has been presented,
I hope it will be subjected to scrutiny and criticism as we seek to agree on
terminology free of confusion and complexity.

Major Farrell wrote this paper while attending the College of Naval Command and Staff, Naval
‘War College.

Notes

1, Jenkins, Intertational Terrorism: A New Kind of Warfare, Rand Report P-5216 at 1 (june 1974).

2. Id, at 3-4. To illustrate this, one has only to recall the Symbionese Liberation Army. Through the
news media everyone became familiar with the seven-headed cobra symbol and heard audio tapes of the group's
demands. A significant number of FBI agents and policemen were mobilized to track down the group. Patty
Hearst’s kidnapping added greatly to the notoriety as the group was viewed nightly by millions on network
news, However, it has subsequently been determined that the group had only a dozen or so members at its
height of strength. At its demise it had to its credit one murder, one kidnapping, one bank job and a few stolen
cars, The difference between actual violence and the amplified effects of the violence is most notable. See also
David Anable, “Coming to Grips with World Terrorism” Christian Science Monitor, 19 December 1975, p. 3,
where terrorism is described as the “weapon of the weak . . . whose shock waves then buffet millions.”

3. Cooper, What is a Terrorist: A Psychological Perspective, 1 Legal Med. Q. 18 (1977) as reprinted in U.S.
Congress, Senate, Committee on the Judiciary, Subcommittee on Criminal Laws and Procedures, The Terorist
and His Victim, Hearings (1977).

4, id,



Hall 357

In the Prize Cases, the Supreme Court found President Lincoln’s naval
blockade of Southern ports to be lawful and stated: “Ifa war be made by invasion
ofa foreign nation, the President is not only authorized but bound to resist force
by force. He does not initiate the war, but is bound to accept the challenge
without waiting for any special legislative authority.””? The Supreme Court’s
interpretation in the Prize Cases is consistent with Hamilton’s view of the
President’s war-making power. It is now axiomatic that another nation’s initia-
tion of hostilities against the United States (including U.S. citizens and their
property) justifies unilateral defensive war making by the President. As a
corollary, the President is constitutionally authorized to determine whether or
not the United States is involved in a situation justifying the use of force for
defensive purposes.”*

One indication of how the Founding Fathers viewed presidential war making
is the manner in which the early Presidents exercised their warmaking power.
President Washington was provoked in 1794 by the establishment by the British
ofa fort twenty miles inside the western boundary of the United States. Without
consulting Congress, he caused the following order to issued to General Wayne,
Commander of the Western Department: “If, therefore, in the course of your
operations against the Indian enemy, it should become necessary to dislodge the
[British] party at the [fort located at the] rapids of the Miami [River], you are
hereby authorized, in the name of the President of the United States, to do it,””5

Early in his presidency, Thomas Jefferson, who viewed the congressional
power to declare war as an “effectual check to the Dog of ‘war,””® ordered the
Navy to defend American commercial vessels in the Mediterranean against the
Barbary pirates without congressional declaration of war. Consequently, the
12-gun tender U.S.S. Enterprise engaged and captured a 14-gun corsair of the
Bey of Tripoli. On 8 December 1801, President Jefferson reported to Congress
in his First Annual Message: “I sent a small squadron of frigates into the
Mediterranean, with assurances to that Power [the Bey of Tripoli] of our sincere
desire to remain in peace, but with orders to protect our commerce against the
threatened attack. . .. The Bey had already declared war. His cruisers were out.
Two had arrived at Gibraltar. Our commerce in the Mediterranean was block-
aded and that of the Atlantic in peril. The arrival of our squadron dispelled the
danger. One of the Tripolitan cruisers, having fallen in with and engaged the
small schooner Enterprise, commanded by Lieutenant Sterret, which had gone as
a tender to our larger vessels, was captured, after a heavy slaughter of her men,
without the loss ofa single one on our part. . .. Unauthorized by the Constitu-
tion, without the sanction of Congress, to go beyond the line of defense, the
[Tripolitan] vessel, being disabled from committing further hostilities, was
liberated with its crew. The Legislature will doubtless consider whether, by
authorizing measures of offense also, they will place our force on an equal footing
with that of its adversaries. I communicate all material information on this subject,


Robertson 279

extension of the territorial sea to twelve nautical miles does not affect the
application of the laws of neutrality, stating:

[T]he 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 ofa neutral nation.
as a place of sanctuary ftom their enemies or as a base of operations.”

The Canadian”! and German” 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.” 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.”*
Such actions would tend to embroil the neutral in the armed conflict rather than
isolate it from such actions, which, of course, is the purpose of the law of
neutrality. The passage of the Altmark through the Norwegian territorial sea in
World War II,” as well as Great Britain’s claim that German submarines were
using the same sea as a thousand-mile-long “covered way” for passage of their
submarines from home ports to operational areas in the open seas”© 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 alll States, including warships,” have the right
of innocent passage through the territorial seas of all States. In time of war,
neutrals may, if they choose, allow “mere passage” of belligerent warships
through their territorial seas without jeopardizing their neutral status.’® On the


438 Readings on International Law

Legal Jurisdiction over Offshore Maritime Terrorism.

1. Maritime Zone Delimitations. Inasmuch as offshore drilling structures
legally may be classified as “artificial islands” under customary international law
(as well as under most domestic legal system),”° they assume particular relevance
in the emergent law of the sea. Since late 1973 diplomats from some 160 nations
have been formally engaged in a series of complex, protracted negotiations—the
third United Nations Conference on the Law of the Sea (UNCLOS III)—an
aim of which is to produce a comprehensive multilateral treaty for regulating use
and exploitation of the world’s oceans.”! These negotiations have produced the
United Nations Convention on the Law of the Sea signed at Montego Bay,
Jamaica, on 10 December 1982 (the United States is not a signatory). Importantly,
this treaty very likely will come to be regarded by the vast majority of States as
the modernized codification of ocean law. Hence, those provisions in the
Convention which specifically are applicable to artificial islands, especially as
regards their jurisdiction and the coastal State’s responsibilities, merit particular
attention here.

a. The Territorial Sea. Since the seventeenth century, international law has
mandated that a belt of sea (inclusive of the airspace above and the seabed and.
subsoil below) three nautical miles in breadth be reserved for the coastal State’s
exclusive sovereign jurisdiction. Since World War II, however, this customary
tenet of law has come under increasing challenge; consequently, the international
community’s contemporary consensus as embodied in the draft text affirms that
a territorial sea may extend out to a distance of twelve nautical miles.”
Accordingly, any fixed facilities operating offshore within this zone, be they
privately or governmentally owned would be subject to the sovereign legal
jurisdiction, regulation, and, presumably, protection of the coastal State. As a
result, all acts of terrorism directed against installations situated in territorial waters
perforce not only would constitute violations of international law generally but
also would abrogate domestic law specifically.

b, The Exclusive Economic Zone. In the currently emergent law of the sea,
a novel departure from traditional maritime zonal delimitations has rapidly
evolved. This rather radical modification, known as the exclusive economic zone
(EEZ) entails an extensive assertion of coastal State jurisdiction over contiguous
marine waters, principally for purposes of resource management and develop-
ment. Extending seaward not beyond 200 nautical miles, the “exclusive
economic zone is an area beyond and adjacent to the territorial sea,” in which
the coastal States exercises:

(2) sovereign rights for the purpose of exploring and exploiting, conserving and
managing the natural resources, whether living or non-living, of the seabed and
subsoil and the superjacent waters, and with regard to other activities for the
economic exploitation and exploration of the zone, such as the production of


496 Readings on International Law

constitutes an act of perfidy.”"* Misuse of the Red Cross emblem constitutes a
breach of good faith because it undermines the effectiveness of this emblem
during combat and jeopardizes the safety of noncombatants and the traditional
immunity of protected medical activities, structures, and modes of medical
transportation, such as hospital ships, ambulances, and medical aircraft. Thus, it
would constitute an act of perfidy for a commander to use a hospital ship to
transport troops, weapons, or ammunition with the intent to elude or attack
enemy forces.

The second example is the feigning of distress through the false use of
internationally recognized distress signals such as MAYDAY and SOS,!° which
evoke the traditional requirement for mariners to aid those in distress at sea. As
with misuse of the Red Cross emblem, the misuse of a distress signal would
undermine its effectiveness and would jeopardize the safety of neutral vessels.

A third breach of good faith is the misuse of a flag of truce. “The white flag
has traditionally indicated a desire to communicate with the enemy and may
indicate more particularly, depending upon the situation, a willingness to
surrender. It raises expectations that the particular struggle is at an end or close
to an end since the only proper use of the flag of truce or white flag in
international law is to communicate to the enemy a desire to negotiate. Thus,
the use of a flag of truce or white flag in order to deceive or mislead the enemy,
or for any purpose other than to negotiate or surrender, has long been recognized
as an act of treachery.”*”

These three examples demonstrate that perfidy, in its broadest sense, is the
intentional and wrongful use against the enemy of his adherence to the law of
war.

Permissible Ruses

Just as it is impossible to compile a list of all possible acts of deception which
would constitute perfidy, it is also impossible to compile a list of every permissible
ruse. NWP 9 lists camouflage, deceptive lighting, dummy ships, dummy arma-
ment, decoys, simulated forces, feigned attacks and withdrawals, ambushes, false
intelligence information, electronic deceptions, and utilization of enemy codes,
passwords, and countersigns;!® but this list is hardly exhaustive. The Army’s list
contains several additional ruses which merit examination by naval commanders,
including pretending to communicate with imaginary reinforcements, laying
dummy mines, and carrying out deceptive supply movements.’” As noted earlier,
even though a deception is cited as a permitted ruse by NWP 9, that fact alone
does not guarantee its legality. The use ofa ruse is still limited by the requirement
for absolute good faith. Camouflage provides an example of how an otherwise
lawful ruse can become an act of perfidy. Ordinarily a lawful ruse, the use of
camouflage is limited by the restriction that a commander cannot use a protected.


510 Readings on International Law

more than it can deter chemical strikes. As biological warfare techniques and
agents continue to evolve, becoming more and more “discriminate” as well as
harder to detect, the problem of finding a range of credible and proportional
deterrents will also grow.

The other prong of the U.S. biological warfare posture—defense but no
offense—is grounded on adherence to the 1972 Biological and Toxin Weapons
Convention, which bans possession of all biological and toxin agents except for
small stocks retained solely for defensive research. Prior to the biotechnological
revolution, this made some sense as a useful firebreak, because the biological
agents and processes then in existence were relatively unwieldy and unreliable.

The new technologies, however, have potentially converted biological war-
fare from a major undertaking into a cottage industry—simple, cheap, quick,
precise. Distinctions between research and production, between defense and
offense, are now essentially meaningless. Counting missiles in their silos is child’s
play compared to tracking the thousands of facilities which could be used to
produce biological warfare material.

By their very nature such facilities are quite difficult to detect using standard
technical means of verification, i.e., surveillance satellites and ground monitoring
stations. “Unlike high energy physics experiments or the construction and testing
of weapons delivery vehicles,” notes John Birkner, “new biotechnology research
efforts devoted to military objectives would tend not to reveal themselves.”*
Also, advances in bioprocessing technology made during the past decade have
magnified the detection problem by scaling down the size of facilities needed to
produce militarily significant amounts of biological agents. A verification proce-
dure designed to cope with these’ problems—the 1972 Convention having no
such provisions whatever—would have to be extraordinarily intrusive. Since the
step from research to production could be quite rapid, a comprehensive inspec-
tion regime might, as one director of a research institute glumly noted, “have to
inspect the lab notebooks of every [biological] lab in the country.”*

Summing up these concerns, the DoD official then in charge of negotiations
policy, Douglas Feith, told Congress in 1986 that the 1972 Biological and Toxins
‘Weapons Convention “must be recognized as critically deficient and unfix-
able.”*+ Labeling the Convention a “false advertisement to the world,” Feith
went on to explain that the primary culprit was the revolution in biotechnology.
“Because new technology makes possible a massive and rapid breakout, the treaty
represents an insignificant impediment at best.” He concluded by suggesting that
this potential for a quick breakout made the notion of a biological warfare treaty
fundamentally unworkable. “Its principal failing, therefore, is no longer the
absence of verification provisions or lack of effective compliance mechanisms,
the commonly acknowledged shortcomings, but its inability to accomplish its
purpose.” Feith ended his remarks with the following pessimistic appraisal: “It
is not a pleasant task to deliver so dismal a report to the Congress. . . . But can


Hall 353

terrorists operations. For example, Libya provided passports to the Abu Nidal
members responsible for the [27 December 1985] attack on the El Al counter in
Vienna.” Although Qaddafi at first denied the State Department's allegations,
he later proclaimed, “I declare that we shall train [certain groups] . . . for terrorist
and suicide missions and . . . place all weapons needed for such missions at their
disposal. . . . Libya is a base for the liberation of Palestine.””*

The United States brought punitive measures against Libya, imposing trade
restrictions and freezing Libyan government assets held by U.S. banks.> Rumors
ran high about the possibility of military operations, Secretary of State George
P. Shultz and Secretary of Defense Caspar W. Weinberger disagreeing over the
advisability of such action. Secretary Weinberger disputed the suggestion of
Secretary Shultz that military action against Libya should be undertaken in the
absence of data absolutely confirming a direct connection between specific
terrorist acts and Libya.”* Secretary Shultz said that the United States “cannot
wait for absolute certainty and clarity” as a precondition for military actions.”
He added, “A nation attacked by terrorists is permitted [by international law] to
use force to prevent or preempt future attacks, to seize terrorists or to rescue its
citizens when no other means is available.””° Secretary Weinberger, on the other
hand, criticized those pursuing “instant gratification from some kind of bombing
attack without being too worried about the details.””? He raised “the basic
question of whether what we are doing will discourage and diminish terrorism
in the future.”

By the end of March, three U.S. aircraft carriers, the Coral Sea, the Saratoga,
and the America, and their battle groups were operating in the Mediterranean,
and the Pentagon announced plans for naval air operations over the Gulf of
Sidra.>! Libya considered these activities to be provocative because it claimed the
entire 150,000-square-mile Gulf as part of Libyan territorial waters. This ter-
ritorial dispute had led, in August of 1981, to the downing of two Libyan SU-22
fighters by two U.S. Navy F-14 fighters. On 24 March 1986, during U.S. naval
air operations over the Gulf of Sidra, Libyan shore batteries launched surface-to-
air missiles (SAMs) against U.S. aircraft. The missiles missed, and U.S. naval forces
retaliated by attacking the radar installation at the SAM site with HARM
antiradiation missiles from naval aircraft. Later that day, naval aircraft launched
Harpoon missiles against a Libyan La Combattante-class fast-attack craft, sinking
it. U.S. Navy aircraft also attacked a Libyan Nanuchka-class corvette proceeding
toward the carrier task force.* In addition, the guided missile cruiser U.S.S.
Yorktown launched missiles against a second La Combattante fast-attack craft that
had proceeded to within ten miles of the task force. On 25 March, Navy aircraft
attacked a second Nanuchka-class corvette, leaving the vessel dead in the water
and afire.>> Former Secretary of the Navy John Lehman has reported that a total
of three Libyan craft were destroyed.** On 27 March, President Reagan reported
to Congress by letter that the naval exercises in the Gulf of Sidra had ended.*>


Gilchrist 133

the political and legal aspects of managing the “edge of war” crisis inevitably are
subordinate to military factors. Since the primary purpose of war games is to test
strategy and tactics in war, there is an artificial feeling of the inevitability of (or
even impatience for) the commencement of hostilities that in real life would not
be present. Further, the reactions to a cordon sanitaire declaration by those
playing the parts of major Soviet officials undoubtedly would not precisely match
those of their real life counterparts.

Determining the Cordon Sanitaire Size

Many factors affect the size of the area around a battle group that should be
included in a cordon sanitaire. Probably the most obvious of these are the ranges

Ranges of Major Soviet Antiship Cruise Missiles

Range Platforms
AIR-TO-SURFACE MISSILES

AS-2-KIPPER About 1002m BADGER C/G

AS-3. KANGAROO 200-300 nm BEAR B/C

AS+ KITCHEN 150-250 nm BLINDER B, BACKFIRE

ASS KELT About 100mm BADGER.

AS —_KINGFISH 150-250nm BADGER C/G
SUBMARINE LAUNCHED

ANTI-SHIP MISSILES

SS-N-3c SHADDOCK About 250nm — ECHO I/II, JULIETT, WHISKEY

CONVERSION

SS-N-7 About30nm  CHARLIET

SS-N-9 SIREN About60nm CHARLIE Il, PAPA

SS-N-12 About 300mm ECHO II
SURFACE-TO-SURFACE

MISSILES

SS-N-1 SCRUBBER About 100 nm KILDIN KRUPNYY

SS-N-2 STYX About 25nm - OSAI, KOMAR, NANUCHKA II

SS-N-2 STYX (Improved) About 40 nm OSA II, MOD KASHIN, MOD
KILDIN, MATKA,

TARANTUL
SS-N-3b SEPAL About 250 nm KRESTA I, KYNDA
SS-N-9 SIREN About 60 nm NANUCHKA, SARANCHA

SS-N-12 About 300 nm KIEV

Source: Office of the Chief of Naval Operations, Understanding Soviet Naval Developments
(Washington: U.S. Govt. Print. Off,, 1981), pp. 131-132.



434 Readings on International Law

status such terrorist acts would assume under international law, especially with
reference to coastal state jurisdiction, the relevance of international piracy law,
and the doctrine of State responsibility. Third, an assessment is made of the
present capacity of coastal States to dissuade and curtail maritime terrorism.
Toward this latter end, some policy-oriented recommendations for fashioning
an effective, more clearly elaborated antiterrorist deterrent program for seaward
drilling structures are proffered for reflection and critical consideration.

The Terrorist Threat to Offshore Structures

Transnational terrorism has become a stark fact of modern life. Recent data
indicates that in 1981 more than 2,500 terrorist incidents occurred worldwide,
including at least 600 assassinations, 960 bombings, and 825 facility attacks.> Inter
alia, the unremitting widening economic gap between rich and poor nations,
aggravated by the attendant socio-psychological dislocation and frustration it
produces; the easy market access any interested purchasers have to conventional
‘weapons and explosives; and, the rather blatant political, financial, ideological,
and material support given by some governments to radically militant organiza-
tions or “national liberation movements”—these factors in combination have
served to foster and facilitate conspicuous resort to terrorist violence worldwide.

As stated earlier, hydrocarbon resources extracted from the oceans’ depths are
assuming increasing importance for the world economy. As demand for and
expectation of petroleum and natural gas have intensified, so too the amount of
commercially available land-based supply has been depleted. Consequently, in
recent years declining exploitable reserves on land, coupled with advancements
in appropriate oceanic engineering technology, have enhanced the economic
feasibility of moving offhore to undertake deep-water drilling ventures.

As evidence of this trend, in 1969 world production of crude totaled 15.2
billion barrels, of which some 2.26 billion barrels (or 14.9 percent) came from
offshore wells; by 1980 the world crude production total had reached 21.8 billion
barrels, but the offshore contribution had climbed to exceed 5 billion barrels (or
about 23 percent). When viewed within the context of the persistent increase
projected for world energy consumption, and the lucrative exploitation oppor-
tunities afforded by potential offshore hydrocarbon resources reserves,” it is not
unexpected that drilling operations have proliferated offshore. Accordingly,
thousands of platforms related to oil and gas extraction have been constructed
on continental shelves throughout the world. In this connection, operation
platforms off the United States’ coast alone in January 1981 reportedly numbered.
more than 3,800.° Perhaps of greater salience for this study, the world fleet of
offshore mobile drilling rigs is growing dramatically. Whereas in March 1982,
527 rigs were operating,’ by May the number had risen to 592,° and by early
1983, the petroleum industry calculates the number of available offhore drilling


Chapter 36

False Colors and Dummy Ships:
The Use of Ruse in Naval Warfare*

Lieutenant Commander Mary T. Hall, JAGC, U.S. Navy

“ kay, we have an all-black hull with “Lykes Lines” on the side, mid-ships.
White superstructure with black diamond, a block L inside the
diamond.’ He lifted his binoculars. ‘Lookout mast forward of the superstructure.
Check. Superstructure is nicely raked. Electronics mast is not. Proper ensign and
house flag. Black funnels. Winches all by the barge elevator—doesn’t say how
many winches. Damn, she’s carrying a full load of barges, isn’t she? Paintwork
looks a little shabby. Anyway, it all checks with the book; that’s a friendly.’””!
This report, from Tom Clancy’s Red Storm Rising, is being delivered by the
copilot ofa P-3 Orion conducting a visual inspection and recognition pass on a
merchant ship in the North Atlantic as war with the Soviet Union is about to
erupt. Little does the copilot realize that the ship, which he believes to be an
American seagoing barge carrier, is in fact Soviet. Concealed within her barges
and hull are over one thousand air assault troops preparing to strike Iceland. Little
does the copilot know that the shabby paintwork is only a few hours old and is,
along with false colors and altered superstructure, part of an intricate scheme to
pass the Soviet ship off as a “friendly.” The ruse works, right down to the Red
Army major who speaks English with a Mississippi accent to the Orion crew
over the VHF circuit.

The Commander's Dilemma

The use of disguise in naval warfare is not new. Rather, because it capitalizes
on the traditional force multiplier of surprise, deception has long been one of
the most valuable weapons in a commander's tactical arsenal. However, under
the Jaws of naval warfare, not all forms of deception are legal. Hence, a
commander must be able to distinguish between legal and illegal applications of
deception.” Since the line between what is legal and what is not is indistinct, the
commander’s task is difficult, and the heat of battle is hardly the ideal environment
in which to make a detached, unemotional analysis of the law of naval warfare.

* Reprinted from the Naval War College Review Summer 1989.


Chapter 17

The Kuriles:
Passage or Obstruction to Regional Peace?*

Lieutenant Commander Rex M. Takahashi, U.S. Coast Guard

TT is much talk these days about a new world order and the post-Cold
War era. In the relationship between the economic superpower Japan and
the military superpower Soviet Union, however, not much has changed. This
past April President Gorbachev visited Japan for three days of talks with Prime
Minister Kaifu. Fifteen agreements were signed. These covered subjects ranging
from trade fairs and cultural centers to air rights and fisheries accords.’ As to the
basic political and military relationship, however, a peace treaty formally ending
World War II between the two countries remains unsigned.

At the respective national strategy levels of the Soviet Union and Japan, a
mutual coldness persists. While a great deal of geopolitical change has occurred
in central Europe over the past two years, the same is not true in Asia. The forces
of the traditional superpowers, as represented in the Soviet Far East TVD
(Theater of Military Operations) and in the U.S. Pacific Command, remain in
their adversarial posture. The size of forces may change in accordance with
“indications and warning” assessments, but the geopolitical relationships remain.
the same between the U.S.S.R., Japan, and the United States. It is, in an odd
way of thinking, a comfortably stable condition in which all the country-actors
know their roles.

Product, symbol, and possible catalyst for change in the affairs of the three
countries are the Kurile Islands—or “Northern Territories,” as the southern four
islands are referred to in Japan. The dialogue on sovereignty over these islands is
between the Soviet Union and Japan, but any change will dramatically alter the
military strategic picture for the United States as well.

Where Are the Kuriles?

The Kuriles form a chain of thirty-two islands stretching between Hokkaido
and the Kamchatka Peninsula. David Rees, in his book on the Soviet seizure of
the Kuriles, states that postwar Japan considered its lost Northern Territories to
consist of the entire Kurile chain and geographically separate south Sakhalin.

* Reprinted from the Naval War College Review Autumn 1991.


392 Readings on International Law

adventurist terrorism and the cause of national liberation and people’s revolution,
others stressed State terrorism, yet others again condemned colonialism as not
only a form of terrorism, but also as causes of “individual terrorism.” The United
States submitted a Draft Convention’ that stressed international cooperation in
the apprehension of terrorists, their arraignment, trial and appropriate punish-
ment (Article 2-“punishable by severe penalties”). Article 3 provides:

A State Party in whose territory an alleged offender is found shall, if it does not
extradite him, submit, without exception whatsoever and without undue delay,
the case to its competent authorities for the purpose of prosecution, through
proceedings in accordance with the laws of that State.

And Article 4 calls upon States to establish effective jurisdiction over terroristic
crime under national law. Some States argued that the U.S. Draft Convention
could be the basis of a convention. Others, however, viewed it as a helpful
contribution for further work. But no further steps were taken for the implemen-
tation of either its terms or the goals it prescribed.

By Resolution 3034 (XXVIN'® the General Assembly established an Ad Hoc
Committee to consider the subject and submit a “report with recommendations
for possible co-operation for the speedy elimination of the problem.”"? This
Ad Hoc Committee met from 16 July to 11 August 1973 and concluded its
Report” with the following statement:

During the general debate, the Ad Hoc Committee heard statements by 27
delegations of Member States. A similarly large number of delegations participated
in the discussion held in each of the three sub-Committees. In taking up the study
of the delicate and complex problem entrusted to it by the General Assembly, the
Ad Hoc Committee was fully aware of the difficulties of its task. Representatives
of the various geographical groups took part in the debates of the plenary Ad Hoc
Committee and of each of the Sub-Committees. The resulting frank and extensive
exchange of ideas brought out the diversity of existing views on the various aspects
of the subject submitted for consideration to the Ad Hoc Committee. Those views
are faithfully reflected in the summaries of the plenary and Sub-Committee debates
contained in the report, the careful consideration of which the Ad Hoc Committee
recommends to the General Assembly.”*

Subsequently, at its sessions in December 1973,” 1974,” and 1975,” the
Sixth Committee reported that “because of the lack of time,” it had been unable
to deliberate on the subject and recommended that it be carried forward on the
agenda to the next session of the General Assembly. On 15 December 1976,
however, the Sixth Committee recommended, and the General Assembly
adopted, Resolution 31/102” in which, inter alia, it noted that the Ad Hoc
Committee had “been obliged to suspend its work””* and invited it “to continue




Farrell 409

5, Johnson, Perspectives on Terrorism, in LAQUEUR, THE TERRORISM READER 269 (Laqueur ed. 1978).

6, Laqueur, Terrorism—A Balance Sheet, id, at 262-263. Presumably Eskimos would be immune from any
inclinations in this direction.

7, Dugard, Intertational Terrorism: Problems of Definition, International Affairs 67-69 (January 1974).

8, Louis Hoffacher, “The U.S. Government Response to Terrorism,” Vital Speeches of the Day, 15 February
1975, p. 266. While the speech is slightly dated, it stil holds true.

9. United Nations, YEARBOOK OF THE UNITED NATIONS: 1970 at 790 (1971).

10. 14.

11, Milbank, Intemational and Transnational Terrorism: Diagnosis and Prognosis, U.S. CA Research Study
PR76 10030 27 (April 1976).

12, ALEXANDER, CONTROL OF TERRORISM: INTERNATIONAL DOCUMENTS 87-109 (1979). This
compilation contains the text of treaties dating from 1902 dealing with extradition of those who commit terrorist
or terrorist-like acts, It also contains U.S. Resolutions and International Civil Aviation Organization Resolu-
tions,

13, The New York Times, 9 December 1979, p. 12.

14, Jenkins, Intemational Terrorism: A Balance Sheet, in ENDICOTT & STAFFORD, AMERICAN DEFENSE
POLICY 184-186 (4th ed. 197).

15, Brian Crozier, Director of the Institute for the Study of Conflict, London, in testimony before a U.S.
Senate subcommittee, indicated that there were two main categories of terrorism: disruptive and coercive. The
aims of disruption are: selfpublicity, to build up the movement's morale and prestige; to discredit and
demoralize the authorities; and to provoke the authorities into taking excessively harsh repressive measures,
likely to alienate the population and force a rising spiral of official expenditure in arms, lives and money,
resulting in public clamor for the abandonment of counteraction. On the other hand, the aims of coercive
terrorism ate: to demoralize the civil population, weaken its confidence in central authority and instill fear of
the terrorist movement, and to make an example of selected victims by torture or death to force obedience to
the leadership of the movement. U.S. Congress, Senate, Committee on the Judiciary, Terrorist Activity-Interna-
tional Terrorism, Hearings 181 (1975).

16, Jenkins makes this point most clearly with an illustration from the massacre at Lod Airport in 1972.
He states that with terrorism there is a stronger connotation of guilt and punishment than in other forms of
warfare or politics and a narrower definition of innocent bystanders. The victims of the Lod incident, many of
whom were Christian pilgrims from Puerto Rico, were said by the terrorist to be guilty because they had
arrived in Israel on Israeli visas and thereby had tacitly recognized the State that was declared enemy of the
Palestinians and, by coming to Israel, they had in effect entered a war zone. What was being said was not that
the victims were innocent bystanders unfortunately caught in a crossfire; neither was it saying it would seck
and kill all those holding visas from the State of Israel. The organization was saying that those who happened
to get shot—just because they were there—were nonetheless guilty or they would not have been shot. Stated
another way, they did not become victims because they were enemies, but rather they became enemies because
they happened to be victims, Jenkins, supra n. 14 at 186.

17. International Association of Chiefs of Police, Inc., Final Report, Needs Assessment Study: Terrorism in
Dade County, Florida at 10 (Miami, Fl: Dade-Miami Criminal Justice Council, July 1979).

18. Id, at 11, The governments of Mexico and Brazil have not frequently used the labels “terrorist” and
“political” for the urban terrorists. They use instead “criminal” and “bandit,” hoping to deprive the terrorists
of any glamour, Such a tactic makes any system of repression easier to justify, should the need arise. PARRY,
‘TERRORISM FROM ROBESPIERRE TO ARAFAT 524 (1976).

19. Hardman, Terrorism, THE ENCYCLOPEDIA OF THE SOCIAL SCIENCES v, xiv, at 576 (1964).

20, International Association of Chiefs of Police, Inc., at 12.

21, Id, at 14,

22, One of the potential dangers that is embodied in the European Convention of 1978 cited above is its
potential for not concerning itself with the “why” ofa particular act. Blanket prohibition may be an overreaction
and exemplify deterrence through “overkill.” The several attached reservation tend to endorse this view.

23, Paust, A Survey of Possible Legal Responses to International Terrorism: Prevention, Punishment, and Cooperative
Action, 5 Ga. J, Int'l & Comp. L. 434-435 (1975).

24, Numerous other definitions, or attempts at definition, are found in many of the works cited in this
article, Others of interest are Bouthoul, Definitions of Terrorism, in CARLTON & SCHAERF, INTERNATIONAL
TERRORISM AND WORLD SECURITY 50-53 (1975); Fromkin, The Strategy of Terrorism, Foreign Affairs 690
(uly 1975); SCHREIBER, THE ULTIMATE WEAPON: TERRORISTS AND WORLD ORDER 20-37 (1978).

25, This definition closely resembles the one put forth on page 42 of the study by the Intemational
Association of Chief of Police, Inc. One of the major differences is the insertion of the word “political”
between the words “human” and “activity.” My reasons for doing this is to avoid admixing terrorism with
gangland intimidation or similar acts. Terrorism is directly concemed with the exercise of, or the attempt to



300 Readings on International Law

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.
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 passage 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 route
around or through such an area with reasonable assurance of safety.

The Canadian Manual’s paragraph on naval mines contains no reference to
geographic limitations, confining itself to quoting verbatim Articles 1 through 3
of Hague VIII.!9? One must determine geographic limitations for mining by
turning to other provisions of the Manual dealing with areas of. ‘operations”TM and
defining neutral waters.”>! 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.”

The Manual contains no explicit provisions against mining of neutral waters,
but the paragraph on Scope of Application of the rules states that:


456 Readings on International Law

Is the new USS. stance justified? The recent instances of State-supported
violence would indicate “yes.” Terrorist attacks in 1983 and 1984 took the
highest annual toll of lives and property on record. More U.S. lives were lost in
1983 to international terrorism than in the previous 15 years combined. And
with rare exception, the often spectacular attacks during 1983 and 1984 were
carried out by groups that were State-supported.*

While moral justification for this new U.S. policy may be obvious, the
problem of defining that State support or linkage which warrants a U.S. military
response, that legal framework supportive of such a proactive policy, and those
reasonable force alternatives responsive to the threat, is more difficult. It is to
these particular concerns that this paper is addressed.

State Sponsorship

Unlike the 1960s when most terrorist groups were autonomous, international
terrorism since that time has come to resemble the workings of a multinational
corporation. Walter Laqueur placed this in perspective when he noted: “An
operation would be planned in West Germany by Palestinian Arabs, executed
in Israel by terrorists recruited in Japan with weapons acquired in Italy but
manufactured in Russia, supplied by an Algerian diplomat, and financed with
Libyan money.”®

The United States was jolted into an awareness of the changing character of
terrorism when its Embassy in Tehran was seized on 4 November 1979 by Iranian
militants who enjoyed the support of Ayatollah Khomeini’s revolutionary
government.® While the U.S. Government resolved that crisis with the loss of
only eight lives—lost in the aborted rescue mission—nations, including the
United States, have not been as fortunate in the 1980s. Shiite terrorists bombed
the U.S. Embassy in Beirut in April 1983, the U.S. Embassy in Kuwait in
December 1983 and the U.S. Embassy Annex in Beirut in September 1984, all
with paralyzing effectiveness. Similar attacks against South Korean diplomats in
Rangoon in 1984 and against the Italian cruise ship Achille Lauro in October 1985
suggest that we have only seen the beginning. While the last two incidents could
be clearly linked either to a government or nongovernmental international
organization, the linkage in the attacks on U.S. interests in Lebanon and Kuwait
was less clear.

Itis the linkage between the terrorist and the sponsoring State which is crucial
to providing our Government with the justification for response against that State
and with the ability to capitalize on the response in terms of deterrence. Causal
connectivity or linkage, however, can only be established if effective intelligence
operatives are positioned to discover who the terrorists are, where they are, and
who supports them. Covert intelligence operatives are necessary for identifying
and targeting terrorist training camps and bases, and for providing an effective


Farrell 451

or at a minimum, acceptance of the activities undertaken by a government to
insure the public welfare.

Based upon numbers alone, one might be tempted to argue that terrorism
does not represent a great threat to the United States. Since the late 1960s there
have been less than 500 Americans killed as the result of terrorism. Should you
not count the loss of the 241 Marines and other servicemen in Beirut, the number
is almost halved.” During each long holiday weekend, more Americans are killed
on the highways in a matter of days than in the nearly twenty years since statistics
concerning terrorism have been maintained.

One must focus on the nature of the target rather than the numbers. What is
under attack is the sovereignty of the nation; the right to maintain embassies
abroad; the right to have government representatives safely carry out their
assigned duties; and the right of free democracies to provide for their populations.
Terrorists have not sought out just any target. They seek those who represent
what the government or democratic institutions seem to foster. Ambassadors,
educators, military personnel, business people and members of the media all have
been targets over the years.

It is no coincidence that Western societies have borne the bulk of terrorist
attacks over the years. These are the nations that are most open, affording the
terrorist fairly free movement, as well as the guarantee of media coverage for any
significant event. To create and maintain the climate of fear described above, the
nature and consequences of the terrorist act must be widely publicized. Further,
the industrialized democracies of the West have achieved great technological
advances which, while bettering society, have also made them much more
vulnerable. Whole cities can be immobilized with the loss of key power grids
and the ensuing disruption could be catastrophic. Centralized computer data
bases pose an additional target for a terrorist group. The loss of records by a large
bank or multinational corporation would have ramifications far beyond the dollar
loss of the material itself.

The nature of the international environment today lends itself to the violence
represented by terrorism. In a world faced with the real potential for nuclear
conflict and the subsequent devastating aftermath, lesser, “safer” forms of warfare
are desirable. These indirect means of conflict by various powers take on an
attractive appearance and present an affordable choice. The once credible threat
of massive retaliation proffered in the late 1950s and early 1960s for any
transgression, however slight, has generally lost credibility. The United States has
shown that it is very tolerant of violence directed against it. Terrorists, through
the mid-1980s, were literally guaranteed no retaliation for attacks which kid-
napped people, assassinated government representatives in the street, leveled US
embassies and killed its occupants. However, the patience of the American people
is showing signs of waning and the Government may take a different tack in the
future.


382 Readings on International Law

coordination, but of bureaucratic obfuscation, enabling the Western nations and
Japan to substitute a mirror image for harsher reality.

Serving as the chief catalyst at the Bonn summit was Canadian Prime Minister
Pierre Trudeau.*® Canada has manifested an increasingly hard line on the
perpetration of terror violence. The passage of the Temporary Immigration
Security Act in February 1976 gave to the Ministry of Immigration the power
to deny entry into the country to any visitor that an immigration official believed
might engage in terroristic activities. No reasons have to be given for that decision
and no appeal will be granted.*” The proposed revision of the Fugitive Offenders
Act points toward mandatory extradition of terrorist actors."® Because of
provisions of the Hague (1970) and Montreal (1971) anti-hijacking Conventions,
as well as the still unratified Optional Protocol to the Single Convention on
Narcotics (1972), the principle of extradite or prosecute has been incorporated
into the Canadian Criminal Code. Moreover, if a particular crime has been
proscribed by treaty, then the political offense exception cannot be invoked on
behalf of the alleged offender.” Immediately following the Bonn summit the
Canadian External Affairs Minister announced the creation of a new subcabinet
position—Deputy Under Secretary of State for Security and Intelligence AE
fairs—whose duties would include developing programs and procedures aimed
at combating the threat of international terrorism.

The Canadian approach reflects a harder attitude toward terror violence and
its advocates than the position taken by the great majority of the world
community. Indeed, numerous commentators have claimed that the United
Nations, and by implication international law, cannot effectively meet the
challenge.*! That the record of the United Nations is something less than
distinguished cannot be gainsaid, but some things have been accomplished,
however minimal, and the dangers of terrorism have at least been perceived.>
Assertions such as international law “isn’t set up to deal with terrorist activities”®>
are counterproductive at best, and often lead to diffidence and even despair.
Therefore, the words of former Secretary of State, William P. Rogers, represent
an effective antidote to the disease of inaction, for the alternatives, in reality, do
violence to the rule of law: “We will continue our efforts to translate into law the
fundamental principle that terrorist behavior and victimization of innocent
people are unacceptable means of solving problems.”>*

Exemptions granted by the United Nations to national liberation movements
have compounded the difficulties and have literally given U.N. condonation to
sheltering activities of haven States.°> Both the Third World States and the
Marxist world have broadly supported the principle that the end justifies the
means. One contemporary observer of the Algerian scene has clearly, if not
cogently, presented the anti-western perspective:


Index 595

Cuban role, 381
denial of haven, 380
European limits, 380
extradition practices. See Extradition practices.
sanctions against States providing, 381
national liberation movement exemption, 382-383
‘UN. sanctions and decline in number of haven States, 388
U.S. Omnibus Anti-Terrorism Act penalties, 381
Helsinki, 531
Hemsley, John, 506
Henkin, Professor Louis, 360
Hess, Rudolph, 23,
High seas, 270
as areas of hostile operations, 274-276
freedom of, 269, 274
piracy, 440-442
Hijacking, aerial, 378-379, 380, 393-395
antihijacking conventions, 378
decline of incidence, 381
Entebbe incident, 396, 419, 460
hijacking of TWA airliner by Croatian extremists (1976), 428
Memorandum of Understanding on Hijacking of Aircraft and Vessels and Other Offenses (1973),
381
Mogadishu rescue of hijacked Lufthansa aircraft, 380, 388, 393-394, 397, 419-420, 421, 460
terrorist demands for haven, 379
UN. policy, 393-394
Convention for the Suppression of Unlawfal Acts against the Safety of Civil Aviation (Montreal,
1971), 378, 382, 394, 403
Convention for the Suppression of Unlawfal Seizure of Aircraft (Hague, 1970), 378, 382, 394, 403
Convention on Offenses and Certain Other Acts Committed on Board Aircraft (Tokyo, 1968),
378, 394, 403
General Assembly condemnation of interference with air transport (1977), 380
Resolution on Aerial Hijacking or Interference with Civil Air Travel (1970), 394-395
USS, Anti-Hijacking Act (1974), 381
Hijacking, maritime, 338-339, 456
Hill, Rear Admiral J. R., 178-179, 183, 186
HMS Alacrity, 315, 317, 318
HMS Challenger, 63
HMS Invincible, 315
HMS Sheffield, loss of, 316
Hoffer, Eric, 383
Holloway, Adm. James L. IIf, 422
Holy Roman Empire, 265
Horne, Mari Kuraishi, 233
Hospital ships, 474
Host Country problems debated in U.N., 395-396
Hostage-taking, 380
distinguishing between hostages and prisoners of war, 395
German draft U.N. convention against hostage-taking (197), 380
nationals in peril, 460
rescue operations, 422-423, 460
UN. policy
Ad Hoc Committee on Hostage-Taking (1977), 380, 393, 393-394, 395
draft Convention Against Taking of Hostages (1979), 404
USS. hostages held in Iran, 437, 456
USS. hostages held in Lebanon, 461
Hot pursuit, 483, 484
Hudson, Judge Manley ©., 6, 88



512 Readings on International Law

at the Geneva Disarmament Conference have been searching for an acceptable
formula that would lead to a comprehensive, verifiable and global ban on
chemical weapons. As with biological agents, the main stumbling block to an
effective chemical warfare treaty has been the bugbear of verification. According
to William Burns, Director of the U.S. Arms Control and Disarmament Agency,
“no country in the world has offered a system which has a reasonable chance of
verification."*®

Part of the problem is that chemical weapons can be produced by the same
types of factories which turn common chemicals into fertilizers, pesticides and
pharmaceuticals. Even more ominous, these plants can be switched from one
production line to the other—from agents of well-being to agents of death—
within a 24 to 48-hour period. Accordingly, a ban on chemical weapons would
require continuous monitoring of some of the world’s most basic industries.
Although the Soviet Union and the United States have agreed in principle on
the need for short-notice challenge inspections as part of any chemical warfare
treaty, negotiations have bogged down on the inevitable issues of how, what,
when and where. In addition, several major countries, primarily China and India,
have not yet accepted the principle of on-site challenge inspections.*?

A further complication is the recent Arab call for linking any ban on chemical
weapons to progress in nuclear disarmament.®° The heavy Arab investment in
biochemical weaponry is intended, in part, to offset Israel’s possession of nuclear
arms. From the Arab perspective, a ban on chemical weapons appears to be
discriminatory so long as Israel retains its weapons of mass destruction. Without
Arab participation, a chemical warfare treaty would be stillborn—even if the
verification quagmire could eventually be navigated.

This having been said, some kind ofa chemical warfare convention will likely
emerge from Geneva during the next few years. There is a growing consensus
that even an imperfect ban would be preferable to the galloping proliferation
now under way. As Brad Roberts puts it, “[t]he choice, practically speaking, will
be between a partially disarmed world and a wildly proliferating world.”*! To
wait is to court increasing danger, especially in the Middle East cauldron; to move
too quickly, however, without first resolving key issues of verification and
linkage, would be to indulge in an illusion of progress.

Defense. Total defense against biochemical weapons is as elusive as a totally
verifiable ban. Even so, several steps can be taken to strengthen deterrence by
creating uncertainty in the minds of potential aggressors about U.S. capability to
fend off a biochemical attack.

* Increase intelligence efforts to determine the scope and degree of current
and emerging biochemical threats. Resources currently assigned to this area are
miniscule compared to those directed at fathoming nuclear threats. To the extent
that nuclear forces have settled into a kind of floating gridlock, whereas the


Gilchrist 139

of the Geneva Convention and accepted international law. If they were not yet
ready to attack the battle group, or for whatever reason did not desire to do so,
the Soviets might rely on their strong legal position and remain within the cordon
sanitaire in defiance of the U.S. declaration. Such a course of action would place
the United States in a difficult situation. If the United States backed away from
its declaration, the nation would obviously lose credibility and expose itself to
greater Soviet pressure. Enforcing the cordon sanitaire by firing on offending
units would damage world opinion of the United States and would likely produce
Soviet retaliation—perhaps a massive strike. Clearly, both of these outcomes are
undesirable. .

Counter Arguments: The first option, backing away from the cordon sanitaire
if the Soviets do not abide by it, should be discarded. The negative aspects of
such a course of action, especially in a high tension crisis, would be devastating
to U.S, interests. For this reason, the United States should never declare a cordon
sanitaire without being fully resolved and capable of enforcing it. However, the
consequences of sinking a Soviet ship within a designated cordon sanitaire, even
after full warning, could also be very dangerous. An escalation ladder for
enforcing the cordon sanitaire should be developed and used to ensure that
excessive force is not used, thereby limiting the danger of Soviet retaliation.
Below are examples of possible escalation ladders to compel Soviet surface, air
and submarine units to vacate a cordon sanitaire.

— Against surface units:

1. Use radio messages and light signals to warn the Soviet unit to leave the area.
2. Attempt to overpower radio transmissions from the Soviet unit through
jamming.
. Use shouldering to prevent the Soviet unit from following the battle group.
}. Energize fire control radars.
. Buzz the Soviet unit with aircraft.
. Fire warning shots near the unit.
. Attempt to disable the Soviet unit’s rudder or propeller with lines or ex-
plosives.
8. Attempt to disable communications and/or radar antennas with helicopters
and grappling hooks or other available means.
9. Seize the unit forcibly.
10. Hit the Soviet unit with a single round of the least damaging weapon available.
11. Continue to fire single weapons at the unit at short intervals until it is disabled
or departs the area.

Noawpy

— Against air units:
1. Intercept the intruder with fighter aircraft.
2, Warn the Soviet aircraft via radio and/or hand signals to leave the area.
3. Fire warning burst of gunfire.
4. Shoot the Soviet aircraft down, if necessary, to prevent it from obtaining
effective targeting data on the battle group.


Chapter 31

Offshore Maritime Terrorism:
International Implications and the
Legal Response*

Christopher C. Joyner

Shore maritime terrorism is a crime waiting to happen. Even so, that

such maritime terrorism has not yet gripped the public’s attention, nor
stirred polemical debate in legal circles, nor produced pronounced policy
reactions by governmental officials is hardly surprising. To date, not a single
incident involving an illicit seizure or destruction ofan offhore drilling platform
or rig has been reported. Consequently, policy contingencies in the event such
acts are perpetrated have been kept cloistered and thus remain cloaked in legal
ambiguities—a situation not unlike aircraft “skyjacking” prior to the intense
proliferation of incidents during the early 1970s.

Nevertheless, the international political milieu of the early 1980s differs
markedly from that ofa decade ago. In this regard, since 1970 politically inspired
terrorist violence has attracted ever increasing attention as it has grown in
frequency and pervasiveness. Terrorism apparently not only is becoming
psychologically accepted as an anticipated—indeed, some would argue practically
an inevitable*—facet of the international political process; it also is being actively
legitimized as a policy instrument to intimidate governments and to influence
public opinion.

Concurrent with the disturbing rise in terrorism over the past decade has come
an equally sensational albeit wholly unrelated development: the rapid growth in
energy demands to meet burgeoning needs created by accelerated industrializa-
tion and modernization programs worldwide. Correspondingly, as the search for
more exploitable hydrocarbon energy resources has proceeded, so too has the
allure and economic feasibility of offhore drilling ventures increased. Regret-
tably, the proliferation of such offshore operations implicitly carries with it
concomitant opportunities for being potential targets of terrorist groups.

Appreciating these observations, this article seeks to achieve three principal
aims. First, it undertakes a discussion and evaluation of the threat posed by
terrorists to offshore maritime structures. Second, an analysis is performed of the

* Reprinted from the Naval War College Review July-August 1983.


PART THREE

USE OF FORCE LAW


Terry 373

During 1988 and 1989, however, the Noriega regime engaged in a systematic
campaign to harass and intimidate U.S. and Panamanian employees of the
Panama Canal Commission and the U.S. forces. In 1989 alone, there were over
300 violations of the U.S. military bases by Panamanian Defense Forces (PDF)
personnel, over 400 U.S. personnel were detained, and 140 U.S. personnel were
endangered.”® When this dangerous and provocative behavior reached an
intolerable level in mid-December, President Bush was required to act to end
the threat to American and Panamanian lives as well as to canal operations.

Meeting the Weinberger Criteria for Intervention

From the perspective of the U.S. Congress, the fact that the initiative met the
carefully circumscribed criteria established by former Secretary of Defense Caspar
‘Weinberger for intervention in 1984 was critical. Senate Majority Leader George
Mitchell stated immediately after the interventions: “I support the President’s
decision. It was made necessary by the action of General Noriega.””? House
Speaker Thomas S. Foley echoed these sentiments when he stated: “I support
that decision. The President made a convincing argument. . . . The President
asked for my support, I gave him that assurance. The decision is justified.”?>

These statesmen were two of the principal protagonists in the 1984 debate
concerning the use of military force following the Beirut bombing and Grenada
intervention. That debate, precipitated by the military services over the appropriate
circumstances in which the government may place American military personnel in
harm's way, led to the clear articulation of six criteria for intervention by then-
Defense Secretary Weinberger before the National Press Club on 28 October 1984.
These tests, applauded then and since by the Congress, require that:

* Anyuse of force be predicated upon a matter deemed vital to our national interest.

* The commitment be with the clear intention of winning.

* We have clearly defined political and military objectives.

* The forces committed be sufficient to meet the objective.

¢ There be reasonable assurance we have the support of the American people.

* The commitment of U.S. forces to combat be a last resort.°!

The intervention in Panama met each of these tests, and because it did, the
support of the American people and the Congress was overwhelming. If we have
learned one lesson from Panama, it is that legal criteria and political criteria are
not unrelated. Where use of military force can be defended as necessary and
proportional under the canons of international law, the American people will
support its use as a proper exercise of national power.

Colonel Terry 2 1986 graduate of the Naval War College was serving as the Staff Judge
Advocate, III Marine Expeditionary Force at the time this articles was first published.


Index 621

signatories to, 147, 159, 263
similarity to Hague XIII, 287
Convention on Offenses and Certain Other Acts Committed on Board Aircraft (Tokyo), 378,
394, 403,
Convention on Peaceful Uses for Outer Space, 52
Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 12
Convention on the Settlement of Investment Disputes between States and Nationals of Other
States, 12
Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (Montreal),
378, 382, 394, 403
Convention for the Suppression of Unlawful Seizure of Aircraft (Hague), 378, 382, 394, 403
Convention against the Taking of Hostages, 339, 404
Convention on the Territorial Sea and Contiguous Zone (1958), 120, 161, 162, 248, 268, 270,
271, 280, 281
United Nations
Ad Hoc Committee on Hostage-Taking, 380, 393-394, 395
Ad Hoc Committee on International Terrorism, 392-393, 395
debate regarding causes of terrorism, 391-392
efforts to define legal and illegal weapons, 472
General Assembly resolutions
Aerial Hijacking or Interference with Civil Air Travel, 394-395
concerning terrorism, 388, 389, 390, 394
condemnations of Israel, 24
Declaration of Principles of International Law Concerning Friendly Relations and Cooperation
Among States, terrorism clauses, 389, 390, 402-403
on the Definition of Aggression, 389- 390
fishery rights, 270
impetus for individual rights and obligations, 9
regarding prohibitions and limitations on means of warfare, 469
“Group of 77,” 11, 67,71
hijacking policy, 393-395. See also under U.N. Conventions.
International Law Commission, 10, 161
Korean Airlines massacre, 326
missions, U.S., 395-396
opposition t» North Korean military boundary zone, 206
Seabed Committee, 10
Security Council
actions, 16
debate conceming Entebbe and Mogadishu hijackings, 396-397
Falklands/Malvinas Resolution, 29
Military Staff Committee, 14
Resolution 660, 14
Resolution 661, 14
Resolution 674, 536, 538
Resolution 678, 14, 538
Resolution 687, 538
rule of unanimity, 15-16
use of peace forces, 335
veto, 13, 333
terrorism policies, 387-399
United Provinces. See The Netherlands.
United States, See also United States acts, agreements, laws, and resolutions.
Achille Lauro case, 338-339
action in Dominican Republic, 460
Alaska, purchase from Russia, 219-220
Articles of Confederation, 355
Barbary pirates incident, 357-358
base rights, 19


Index

‘Whitney, George W., 152
‘Wilson, President Woodrow, 340, 526, 527
‘Wolff, Christian, 544, 545
Woodward, Rear Admiral John, 315-316
‘World Bank, 12
‘World Court, 6
World War I
experiences as basis for changing law of armed conflict, 468
Gallipoli, 345
naval deceptions, 497, 498, 498-499
poisonous-gas use, 468
Sassoon, Siegfried, 345
“Schlieffen Plan,” 345
violation of Belgian neutrality, 345
‘World War II
aerial bombardment, 470
aerial evacuation, 473
casualties, 346
experiences as basis for changing law of armed conflict, 458
flying of colors, 497
maritime security zone, 207
Nazi protection of ethnic Germans, 24
Nuremberg War Crimes Tribunal, 332-333
‘Wounded Knee incidents
claims of combatant status, 475
military involvement, 415-416, 425
‘Wright, Quincy, 543,

Xerxes’ Persian fleet deceived by Greeks, 492

Yalta Conference, 233

Yazov, Soviet Defense Minister, 238

Yeltsin, Boris, 238

‘Young, Richard, 88, 89

‘Yugoslavia, assassination of King Alexander I, 402

Z

Zimbabwean terrorists, haven in Zambia, 377-378

625


32 Readings on International Law

the purchase of, for example, ships stores; we lost when the principle was breached of according sovereign
immunity for the acts of direct agents of the sovereign whose sole source of funding is the public purse. Perhaps
it was inevitable in light of the difficulties in law in distinguishing between a private corporation, which is,
after all, merely a creature of the law and thus an extrusion of the State, and a direct government activity
operating under statutes and accountability procedures almost as effectively cutting it off from political control
in its procurement and sales operations. The legal distinctions are too complex to reduce to a simple principle
universally applicable. But there is very little evidence that the problem was even perceived as setious when
the statute was drafted.

7. Rubin, The Hostages Incident: The United States and Iran, 1982 Y.B. World Af. 213.

8. Many more dismal examples are given in FISHER, POINTS OF CHOICE (1978).

9. TAYLOR, A TRIAL OF GENERALS (1981), for what seems an overly “revisionist” view. Generals
Homma and Yamashita were convicted by American military commissions for not restraining the troops under
their command during the Bataan Death March in 1942 and the destruction of Manila in 1945. The impact
of these convictions on the law is not entirely clear.

10. It may be hoped that the United States will never fii in its international responsibility in the same
way. But it is possible to speculate in the light of opinions expressed ftom time to time that President Truman
might have been guilty of an “ordinary war crime” in ordering at least the second nuclear bomb to be dropped
in Japan in 1945. Itis likely that a Japanese court would have held so. But whether an impartial tribunal correctly
evaluating the legal situation in 1945 would have agreed is doubtful. See Falk, The Shimoda Case: A Legal
Appraisal of the Atomic Attacks upon Hiroshima and Nagacaki, 59 Am. J. Int'l L. 759 (1965); Rubin, The Neutron
Bomb Again, 21 Va. J. Int'l L. 805 (1981), and works cited there.

11. General Order 100 of 24 April 1863, Instructions for the Government of Armies of the United States
in the Field (the Lieber Code), art. 29.

12. Thisis not to say that all lawyers are poor at policy-making or all non-lawyers avoid the pitfalls. Harold
Nicolson, while waming against “missionaries, fanatics and lawyers,” specifically exempts international law
experts from his list. NICOLSON, DIPLOMACY 16-17, 24 (1963). Nicolson, a non-lawyer, also writes: “My
own practical experience, and the years of study which I have devoted to this subject, have left me with the
profound conviction that ‘moral’ diplomacy is ultimately the most effective, and that ‘immoral’ diplomacy
defeats its own purposes,” p. 23.

13. The only known scholarly book giving what appears to be an unbiased and more or less complete
history is GOEBEL, THE STRUGGLE OVER THE FALKLAND ISLANDS (1971).

14, Cf. The Island of Palmas (Miangas) Arbitration, 2 R.LA.A., 829 (1929).

15. Gf. The Clipperton Island Arbitration, 2 R.LA.A. 1109 (1931).

16. The Ecrehos and Minquiers Case, United Kingdom v. France, 1953 CJ. 47.

17. The Charter is explicit on this: “Members of the United Nations which have . . . responsibilities for
the administration of territories whose peoples have not yet attained a full measure of self-government recognize
the principle that the interests of the inhabitants of these territories are paramount, and accept as a sacred trust
the obligation . . . to ensure . . . their political, economic, social and educational advancement. . . .” U.N.
Charter art. 73.

18. The classical legal formulation regarding “self-defense” first uttered by Daniel Webster when Secretary
of State in 1842, deals with situations where the necessity for action is “instant, overwhelming, and leaving no
choice of means, and no moment for deliberation.” MOORE, DIGEST OF INTERNATIONAL LAW 414 (1906);
Jennings, The Caroline and Macleod Cases, 32 Am. J. Int'l L. 82 (1938). It is difficult to see how that situation
obtained in the Falklands/Malvinas Islands after the Argentine forces had removed the British garrison and all
shooting had stopped in the Islands. “National security” as a concept would justify anything anywhere. Ies
meaning is solely political; itjustifies nothing in international law because it would justify all counteractions to
the very action it purports to justify. It would also justify executive counteractions, and then the counteractions
to those counteractions, and so on ad infinitum. The use of the phrase by non-lawyers, and occasionally by
adversary-minded lawyers, sometimes approaches silliness.



McNeill 577

and forward operations on the part of both sides. However, the Incidents at Sea
Agreement, which had itself been negotiated and signed during a key phase of
US. involvement in the Vietnam War, remained viable. With one exception
noted below, the annual reviews were held regularly, and always on a low-key
basis. It was the tightly focused military-to-military aspect of the agreement that
allowed reviews to continue despite the political storms of the era.

The Incidents at Sea Agreement proved to be the first of a network of
interlocking bilateral accords that have led to the establishment of a new
operational environment for the two armed forces. These agreements have
reduced tensions and enhanced mutual confidence through detailed navigational
procedures designed to ensure that (other than when military, naval, or air
operations are underway) each side respects the other’s traditional freedoms and
usages under international law. Although the Incidents at Sea Agreement was
meant to address the immediate issue of navigational safety, it had the additional
effect of causing the naval forces of both sides, especially those on the surface and
in the air, to operate in a manner that was not only inherently safer than had
been the case in the unmanaged situation that preceded it but also, as the
respective forces recognized, produced an operational environment less suited
to surprise attack.*

By the middle of the 1980s, relations between the two parties had again
become exacerbated. Among several occurrences that significantly raised tensions
was the death in March 1985 of U.S. Army Major Arthur Nicholson while on
duty under the U.S.-USSR. Huebner-Malinin Agreement on the territory of the
German Democratic Republic. Major Nicholson was shot by a Soviet soldier
who apparently believed him to have entered a denied security area. Failure to
resolve this case led to deferment of the IncSea review meeting scheduled for
June 1985

With the lessening of U.S.-USSR tensions from 1986 on, Soviet and
American military leaders began to exchange visits outside the structure of IncSea
reviews. Besides opening ports to ship visits, the military leaders informally
discussed ways to reduce potentially dangerous activities. The Chairman of the
Joint Chiefs of Staff, Admiral William J. Crowe, Jr., expressed concern to his
counterpart about the Soviet practice of shining lasers at the cockpits of U.S.
military aircraft. In addition, he shared his anxiety about the threat of terrorism
to American warships, explaining the need to establish, through Notices to
Mariners, special “caution” areas around American ships in certain areas. These
concerns made desirable a set of additional procedures, beyond the scope of the
IncSea agreement, that would alleviate the tensions inherent in these new
situations,


Rose 521

is a dangerous illusions lulling the United States to sleep. See, e.g,, the Douglass sources cited in notes 2, 6, &
11 and Douglass and Lukens, The Expanding Arena of Chemical-Biological Warfare, Strategic Review 71-80 (Fall
1984), For a contrary view, that the Biological Warfare Convention is not hopelessly obsolescent and could
perhaps be salvaged, see supra n. 3.

45. Supra n. 5 at 83-84.

46, Gordon, Senators Prepare Sanctions Laws For Supply and Use of Poison Gas, New York Times, 24 January
1989, p. AB.

47. Kester, Chemical Weapons, Cloudy Thinking, New York Times, 13 January 1989, p. A31.

48, Watson, The Winds of Death, Newsweek 25 (16 January 1989). Other leading experts echo Burns’
point. “It would be extremely difficult to detect a deliberate violation of a chemical warfare [CW]
treaty—extremely difficult,” observed Thomas Welch, Deputy Assistant to the Secretary of Defense for Atomic
Energy and Chemical Matters. (Cited in Boyle, An End to Chemical Weapons—What are the Chances?
International Defense Review 1087 (September 1988).

Brad Roberts, a CW expert at the Center for Strategic and Intemational Studies in Washington, is quoted
as concluding: “A realist would have to say that the prospects for a meaningful chemical disarmament regime
are dim.” (Watson, Letting a Genie Out of a Bottle, Newsweek 31 (19 September 1988).

49. Flowertee, Elimination of Chemical Weapons: Is Agreement In Sight?, Arms Control Today 9 (April 1988).

50, Markham, Arabs Link Curbs on Gas and A-Arms, New York Times, 9 January 1989, p. A8.

51. See Watson, supra n. 48 Judging from pledges made during the election campaign, President Bush is
keenly interested in keeping up the momentum for a CW treaty. “If I’m elected president,” he said, “if I'm
remembered for anything, it would be this: a complete and total ban on chemical weapons. Their destruction,
forever. Thatis my solemn mission.” Taylor, Bush: Ban Chemical Weapons, Washington Post, 22 October 1988,
at7.

52, U.S. Army Dept., Committee on Chemical and Biological Sensor Technologies, Assessment of Chemical
and Biological Sensor Technologies (Washington: June 1984), at 50, Chemical and biological warfare agents are
divided into three categories: chemical (synthetic compounds), biological (live organisms), and toxins
(biologically derived chemical substances). To defend against these agents, sophisticated sensors are needed to
detect and identify minute concentrations. At present, the U.S. military has a number of fieldedsystems, ranging.
from battlefield vans to personal dosimeters, capable of monitoring chemical threats. There is no comparable
capability for detecting biological or toxin agents, which can now be diagnosed only with microbiologic and/or
serologic testing procedures available in clinical laboratories. Some studies are beginning to explore the
possibility of developing biomicrosensors, ic., detection devices based on an interaction between the suspected
agent and a sensitive membrane—to remedy this defect. In addition, new developments in immunoassay
techniques and gene probes offer some promise for enhanced detection of biological agents. The ultimate goal
is to develop a multi-function “biochip” (the biological equivalent of an integrated circuit) capable of serving
as the building block for a portable sensor system for biological and toxin agents.

53, Supran. 9 at 9.

54, Tucker, Using Force Against Libya, New York Times, 11 January 1989, p. A23.

55. Ottaway, U.S. Officials see Insufficient Grounds to Justify Attacking Libyan Plant Now, Washington Post,
8 January 1989, p. A24.

56. Capaccio, Naw Exotic Gens on the Way, Defense Week 15 (16 May 1988).

57. See, generally, SHAKER & WISE, WAR WITHOUT MEN—ROBOTS ON THE FUTURE BAT-
‘TLEFIELD (1988). According to the authors: “the opportunities for weapon superiority afforded by [new]
technologies, as well as the increasingly dangerous battlefield environment, may eventually relegate man to the
role of behind-the-scenes strategist, leaving machines to perform the actual fighting, Ifcurrent trends continue,
it is not a question of whether this will happen, but rather how long it will take” (at 6). They estimate that
fally autonomous robots will be deployed on the battlefield within 20-30 years and comprise the “preeminent”
force within 50-60 years. Id. at 10, 73. Ironically, the expanding threat of biochemical weapons will likely spur
on the development of such robotic systems.

58, Ofcourse, not alf of society's important battles take place on a battleground in the formal sense. The
continuum in which sof weapons can be used reaches beyond battlefields and the military’s traditional
capabilities for defense.

To cite a current example, one of the most damaging weapons systems presently being directed at the
United States is chemical warfare in the guise of narcotics. According to some analysts, the growing trade in
drugs involves more than just an unbridled quest for profits. In their judgment, the drug lords are being assisted
by terrorists and certain governments hostile to the United States, for political reasons. Iicit drugs are not only
a source of easy wealth but also a potent and expanding means to sap the vitality of American society. As
explained by a high-ranking Nicaraguan defector, who claimed to have first-hand knowledge about Cuban
and Sandinista strategy: “Yankee imperialism [is] armed to the teeth, believing that the Soviet Union [is] going
to attack the U.S. as part ofa nuclear war. But the Yankees [do] not realize that the Yankee imperialism [is]
going to perish, eaten from within by . . . the drug traffic and the economic competition with Japan and the



Takahashi 233

Portsmouth of 1905, which concluded the Russo-Japanese War, gave the
southern half of Sakhalin, below the fiftieth parallel, to Japan. Fishing concessions
off the Kamchatkan coast were included as well. As David Rees observes, for
“the next forty years Japan’s tenure of the Kuriles and South Sakhalin was
unchallenged.”

For Russia, the Japanese victory of 1905 was an insult to national dignity, and,
as Mari Kuraishi Home points out, the “paradox of the situation lay in the fact
that until then Russia could assuage her own sense of inferiority vis-A-vis Western
Europe with the certainty of her ‘superiority’ over the Asiatic nations, but it had
been an ‘Asiatic’ fleet which had decimated the Imperial Navy at Tsushima.”®

World War II brought a reversal in sovereignty over the Kuriles. Over and
above the territorial dispute, however, there now runs a current of Japanese
distrust and antipathy because of the manner in which that acquisition took place,
At Yalta, Sakhalin and the Kuriles were made part of the agreement which
resulted in Soviet entry into the war against Japan, though some historians
contend that the United States stated only that it would support Soviet claims at
a peace conference. Mari Kuraishi Horne points out that the “Japanese may well
feel that the Soviets did not deserve to be called victors” as they had achieved
victory only indirectly, as a by-product of the war in Europe.” In any event, the
Soviet Union militarily occupied the Kuriles by August 1945, and for them, it
‘was a matter of conquest.!°

Following the Japanese defeat, 570,000 Japanese prisoners of war were used
as slave laborers in Siberia in the late 1940s, in what Bruce Stokes calls “an
internment that violated international agreements and cost thousands their lives”
and alienated an entire generation.!

The Japanese talk of Soviet treachery with regard to the loss of the Kuriles;
the Soviets view the events as a reversal of the treachery inflicted upon Russia
in the 1904 surprise attack on Port Arthur and the ultimate Russian defeat in
1905. The Soviet Union takes the position that the Kuriles are a natural extension
into the Pacific ofits territory. The attitude is, as Stalin noted in his victory address
to the Soviet people on 2 September 1945, that southern Sakhalin and the Kurile
Islands would henceforth serve not “as a means to cut off the Soviet Union from
the ocean or as a base for a Japanese attack on our Far East, but as a means to link
the Soviet Union with the ocean and as a defensive base against Japanese
aggression,”!?

Ideology vs. Economic Pragmatism. In most commentaries on Soviet-Japanese
relations, historical antipathy is cited as the primary block to better relations.
Countries, however, interact at various levels. Thus, while actions may actually
be rooted in the national psyche, justification must often be built on a different,
logical, basis. A country’s nationalistic feelings undergo a metamorphosis in an
attempt to provide the world, or at least itself, a rational explanation.


194 Readings on International Law

routes” received little discussion and was of no consequence at UNCLOS III.
However, there was intermittent discussion of the larger issue as to whether a
coastal State could require prior notification for warship innocent passage. Due
largely to opposition from the United states and the Soviet Union, however, no
provision to that effect found its way into the 1982 LOS Convention or any of
the preceding Official Drafts.

A final germane point from the negotiating history was made by Mr.
Olszowska, representing Poland, which was a cosponsor of the Soviet Draft. At
a meeting on innocent passage Mr. Olszowka stated that “all the acts which were
to be incompatible with the right of innocent passage were specified in Article
16, paragraph 2 [subsequently numbered Article 19.2].”!2 This view, which
coincides with that of the United States, supports the interpretation of the 1982
LOS Convention that not all conduct in violation of coastal State law or
regulation is non-innocent; to be non-innocent, the activity must be proscribed
in Article 19. Further, it confirms that the determination under international law
of whether passage is “innocent” depends entirely upon the activities of the vessel,
not upon its status (e.g., warships) nor whether its route happens to be one
ordinarily used for international navigational.

Policy Implications

The principal policy task for UNCLOS III regarding the territorial sea regime
‘was to achieve a reasonable balance between two legitimate and vital competing
needs: freedom of navigation, an inclusive community interest; and coastal State
security, an exclusive community interest. The Conference produced a workable
compromise between these interests, which was accepted, in the form of the
innocent passage rules, by international consensus. Fidelity to international law,
such as the law of the sea, promotes peaceful and orderly relations between States.
Accordingly, peace and order are imperiled when nations take actions or impose
regulations that are inconsistent with the internationally accepted norms. This is
especially so where, as here, the rule unilaterally imposed by the Soviet Union
has only recently been rejected by international consensus, and the circumstances
in which the rule was rejected have not materially changed.

A major goal of the innocent passage regime, as with any rule of international
law, is to minimize the potential for dispute. Accordingly, the rules for innocent
passage were designed to be objective, written in language resistant to divergent
interpretations. The regime of innocent passage in the 1982 LOS Convention
embodies the policy that all passage, including that of warships, is presumed to
be innocent. The burden is on the coastal State to show non-innocence in
accordance with the relatively specific, objective criteria in Article 19. The finite
list of activities in Article 19 makes certain the categories of non-innocent
activity. A warship may only be required to leave the territorial sea if her passage


212 Readings on International Law

Because the South already conducts these resupply missions on a routine basis,
the real question which needs to be addressed is the proper composition of the
USS. forces which might be employed.

Use of a carrier battle group, or multicarrier battle force, might seem very
appealing from a self-defense perspective, especially in light of the considerable
threat posed by North Korea. But, in this writer’s view, this is not a viable option
due to the general perception of the carrier-centered forces as offensively oriented
strike assets. The high-speed, short reaction aerial threat posed to the North
Koreans by this sort of force would seem dangerously likely to elicit an attack,
which might escalate, at worst, to renewed hostilities on the peninsula itself. A
contrary view might hold that because these assets are so dear to the United
States, and inherently capable of exacting a terrible price for such a misstep, the
North would not challenge their presence. However, this assumes a rational
decision-making model, and past North Korean conduct would not warrant this
optimism.

In this author’s opinion, aerial flights alone are insufficient for a meaningful
challenge. First, the use of high-performance naval or air force aircraft would be
perceived as a threat. Further, aircraft, by their very nature, are transitory and
incapable of providing the duration of operations necessary to demonstrate
credible resolve. Finally, the North Korean zone contains surface prohibitions as
well, which must be contested. If overflight rights are to be asserted, it is
recommended that this be accomplished independently of, but in a closely
coordinated fashion with, the surface navigational exercises.

The clandestine warriors of the deep—submarines—are similarly rejected as
an appropriate platform for this assertion proposal. Their effectiveness and very
survival is predicated upon their “invisible invincibility.” Surface transits by
submarines in this area are rejected out of hand as both unnecessary and foolhardy.
The conclusion drawn is that a surface force is essential, as well as best suited, for
this mission, as possibly complemented by the referenced independent, coor-
dinated overflight program.

Next, what units might comprise this SaG (surface assertion, vice action,
group)? The recommended disposition would be centered around the impressive
capabilities of an Aegis-class cruiser (CG-47), as supplemented by a Perry-class
frigate (FFG-7), and a Spruance-class destroyer (DD-963). The Aegis’ SPY-1A/B
system possesses a substantial antiair warfare capability, as well as ample command,
control and communications and early warning performance.

To counter the significant North Korean submarine threat, a Spruance-class
ship would provide adequate antisubmarine warfare protection for the group.
To back up the other ships in the event of casualties, or to provide an additional
level of force protection, the ASW and AAW capabilities of the Perry-class frigate
make it an excellent candidate for this role.


622 Index

biological warfare preparedness. See Biological warfare.
Civil War, 345
Commission on Integrated Long-term Strategy (Discriminate Deterrence), 209
Congress
power of appropriation, 359
power to wage war, 360
Constitutional Convention,
Department of Defense, Maritime Claims Reference Manual, 206
Department of Defense directive making effective the Protocols Additional to the Geneva
Conventions of 1949, 472
dismantling of biological warfare program, 507
domestic law of “adverse possession,” 210
extradition practices, 379
fisheries management zone, 220
forces in Vietnam, 471
Freedom of Navigation Program. See Freedom of Navigation Program.
Grenada invasion, 334, 352
Gulf of Sidra incident (1981), 336
Japan, relations with. See Japan, US. relations.
Joint Military Commission, 256
law of armed conflict review and ratification, 476-477
Libyan raid (1986), 352-355
LOS Conventions statements, 288
Maritime Strategy, 362
Monroe Doctrine (1823), 26
My Lai incident, 468
National Security Decision Directive (NSDD) 138, 455, 462-463
naval blockade of Southern ports, 357
Nicaragua, policy on. See Nicaragua.
offshore drilling on Alaskan continental shelf, 223-224
opposition to marine technology transfer, 150-151
Panama, policy on. See Panama.
policy on Falklands/Malvinas War, 26-31
position on deep-sea mining, 70
presidential war-making powers, 355-363
Prohibition and the 3-mile limit, 268
Cuba, policy on. See Cuba.
refusal to sign UNCLOS III, 147, 159, 263
relations with People’s Republic of China (PRC), 556-557, 558
role in U.N. sessions drafting protocols to Geneva Conventions of 1949, 469
rules of engagement (ROE). See Rules of engagement (ROE), U.S. ROE.
security alliance with Japan, 555-564. See also Japan, U.S. relations.
Soviet relations, 556, 558
Black Sea operations, 247, 579-580
charges that Soviet forces used biochemical weapons in Laos and Kampuchea, 505
IncSea agreement of 1972. See IncSea Agreement of 1972.
INF Treaty, 465-473. See also INF Treaty.
uneroded access to the Bering and Chukchi Seas, 226
Supreme Court
Martin v. Molt, 360
overturning prohibition on oil and gas tract leases, 224
presidential powers to wage war, 359
Prize cases, 362
recognition of territorial seas, 268
terrorism policy, 455-456, 455-457, 457, 461, 461-463
Truman Doctrine, 346
Truman Proclamation, 269
Vietnam War, 352

56



Joyner 443

may have conflicting jurisdictional priorities—poses a significant problem for
coastal States in regulating, construction, supervision and protection of offshore
extractive facilities.*! Consolidation of regulatory responsibility therefore into a
more centralized comprehensive legislative scheme would seem to proffer better
opportunities for dealing with offshore maritime terrorism.

b. Maintenance of Public Order. There is no question that the ocean energy
industry constitutes a prime national asset against which terrorists could inflict
serious damage and in the process generate widespread sensationalistic publicity.
Further, there is little doubt regarding the legal parameters of such acts. Jurisdic-
tionally, they fall within the territorial legal purview of the coastal State, and are
thus made subject to its criminal laws, as well as its domestic means of enforce-
ment and prosecution.

However, for many coastal States a major obstacle seemingly impeding
adoption of national antiterrorist response plans is the yet unclear situation
regarding specific in situ jurisdiction. Does the protection responsibility for
offhore structures fall principally to private oil companies defending their own
corporate property? Or, is it attributable more so to local government agencies
enforcing their regional law offshore? Or, perhaps the proper responding agency
should be the coast guard, presumably an armed service empowered to enforce
national maritime regulations? Not to be overlooked, what role should a State’s
navy play in undertaking protecting measures against terrorists as part of its
mission to defend the nation against enemies in coastal waters? While each of
these queries suggests plausible and well intentioned options, the distinct realiza-
tion surfaces that responsibilities could overlap, policies could be duplicated (or
worse, neglected), and contingency reactions confused. Expressed tersely, a
coastal State’s responsibility for law enforcement offshore must be unambiguous,
resolute, and clearly defined.

As discussed above, authority for a coastal State’s maintenance of public order
over extractive activities offshore has been clearly stipulated in international law.
Most recently, the 1982 LOS Convention provides in Article 73 that: “The
coastal State may, in the exercise of its sovereign rights to explore, exploit,
conserve and manage the living resources in the exclusive economic zone, take
such measures, including boarding, inspection, arrest and judicial proceedings,
as may be necessary to ensure compliance with the laws and regulations adopted
by it in conformity with this Convention.”** For many coastal States, the most
plausible national alternative for sustaining public order over ocean space offShore
would be an agency trained particularly for that purpose. Such an organization
would be a coast guard-like force, possessing the authority to “make inquiries,
examinations, inspections, searches, and arrests upon the high seas and [territorial]
waters” in order to prevent, detect and suppress violations of a coastal State’s
municipal laws.” Moreover, determination of the most appropriate agency to
enforce criminal law against terrorist activities offShore must ultimately rest with


594 Index

destruction of Islas de los Estados, 318
dominion over “British seas”, 265-266
Elizabeth I, 265
extradition practices, 379
Falklands/Malvinas Islands claims, 25-30
Falklands/Malvinas War, 186, 207, 315, 315-318, 333-334
Gallipoli, 345
General Belgrano, sinking of, 315-316
“hovering acts,” 268
Icelandic fishing dispute (Cod Wars), 99
interregnum period, 266
naval forces (1946), 346
naval forces (1961), 346
proposals to limit mine warfare, 298
Q-ship program, 498-499
reliance on offshore drilling structures, 435
response to INF Treaty, 571
Special Air Service (SAS) anti-terrorist force, 421, 423
transfer of marine technology under UNCLOS III, 151
‘WWII claims of German “safe haven”, 279
Greece, deception of Xerxes’ Persian fleet, 492
Green, Professor Leslie, 543-544
Greenpeace proposals regarding environmental impact of armed conflict, 537
Greenwood, Professor Christopher, 264
Grenada
American students residing in, 321-322
Austin Regime, 322
case for humanitarian intervention, 323
perceived as an armed invasion, 334
Soviet-Cuban actions, 323
St. George’s Medical School, 321-322
‘Urgent Fury, U.S. Operation, 321-329
USS. reasons for intervention, 321, 373
Grotius, Hugo, 3, 6, 265, 266, 321, 544
Guerrillas. See Liberation movements, national.
Gulf of Aqaba, 88, 91
Gulf of Sidra, 204, 214, 336, 353-354

H

Hague Anti-hijacking Convention of 1970, 378, 382, 394, 403

Hague Codification Conference of 1930, 267

Hague Convention (VIII) Relative to the Laying of Automatic Contact Mines, 200, 299

Hague Convention (XIII), 276, 287, 294

Hague Conventions of 1907, 467-468, 474, 523, 524, 533-535, 546, 547, 550
Convention (IV) Respecting the Laws and Customs of War on Land, 467-468
Regulations Annexed, 534-535

Hague Peace Conference of 1907, 276

Haig, Secretary of State Alexander, 334

Hall, William E., 495, 545

Halleck, Henry W., 495

Hamilton, Alexander, 355-356, 357

Hammarskjold, Dag (Secretary General of the U.N.), 531

Harlow, Rear Admiral Bruce, 296

Hart, Liddell, 347

Harvard Researchers’ Draft Convention on Piracy, 440- 441

Havens for terrorists, 377-386, 394, 453. See also Asylum, political.




566 Readings on International Law

Others appear to acknowledge a military dimension although their thinking
remains rooted in a strategic consensus that is now more than a decade old. They
supported the deployment of Pershing and Cruise as the counter to a specific
strategic problem (the decoupling effect of Soviet theater weapons) and now
acclaim the Treaty, which supposedly removes that threat, as total vindication
of the dual-track decision adopted by the NATO nations in December 1979.3
Few military leaders found it easy to oppose this argument, having to explain
what was wrong with the theater nuclear balance of pre-INF days which the
Treaty allegedly restores and which was considered acceptable at the time. Yet
certain nagging doubts remain. Was the Soviet INF deployment really designed
to decouple (surely a Western intellectual construct) or did it serve some more
tangible function in Soviet strategy? Was the theater nuclear balance of the
mid-1970s indeed satisfactory? Has Soviet strategy (or perhaps equally important,
our understanding of it) changed during the decade that since has elapsed?

There was further, and influential, body of opinion which supported the
Treaty, not for its intrinsic merits, but because it appeared to represent a triumph
for diplomacy. The outcome, so their argument ran, demonstrated the wisdom
of dealing with the Soviet Union from a position of strength.* They pointed to
the numerous concessions made by the Kremlin during the course of negotia-
tions-retreat on the issue of independent nuclear forces, on the principle of “equal
security based on geographic factors,” on linkage to SDI, on intrusive verification
procedures.> They saw the inclusion of shorter range systems within the Treaty
as a further victory for U.S. negotiators. They were interested in the technique
rather than the product. No one warned them of Greeks bearing gifts.°

Arms Control and Asymmetric Strategies”

Now that we have it, if we are to satisfy ourselves that the INF Treaty is more
than a series of tactical victories culminating in a strategic defeat, we must extend
the debate beyond the issue of relative numbers and beyond the techniques of
the negotiating process to the military balance as it will exist in Europe when the
Treaty is fully implemented.

However tempting it may be to judge the Treaty solely on the basis of its
contribution to political détente, this is not enough. We may accept the general
proposition that nuclear arms reductions may contribute to a more stable
relationship between the superpowers, while remaining skeptical about the effect
of the Treaty on the security of Europe. Security must be measured against a
wider set of criteria than nuclear weapons alone, and hopes of reducing tension
will prove illusory if either side perceives that the overall military balance has
tilted against it.

It will be as well too, to dispose of the idea, always prevalent at time of détente,
that the Soviet Union is too conscious of the risks and limitations of military


606 Index

collective self-defense, 333
dependence on northern waters, 96
effects ofa restrictive regime for the Baltic Straits, 102
law of armed conflict review, 477
Naval arms control, 109-114
Naval diplomacy, 50, 107-109, 180, 182, 185-186
Naval forces, challenges to naval mobility, 80-81
Naval powers
classification of, 178-181, 186-187
fanctional analysis, 179-181
Naval warfare, 264, 266, 274-276, 299-301, 302-304, 491, 493-499. See also Armed conflict at sea.
deception and ruses, use of. See Deception.
Law of Naval Warfare, 548
Navy, U.S., 493, 495, 496, 497
doctrine regarding surrender, 547-549
naval forces (1946), 346
naval forces (1961), 346
Navy Law of Naval Warfare (NWIP 10-2), 278-279, 283, 288, 293, 294, 296, 302
Posse Comitatus prohibitions, 414
Rules of Engagement, 331-341, 487
Necessity principle, 82, 370, 453, 459-460, 461, 463, 469, 470, 471, 483
Negroponte, Assistant Secretary of State John, 246
Nerve agents, 429, 504
Netherlands
Mare Liberum, 265-266
proposal to limit mine warfare, 298
reliance on offhore drilling structures, 435
resistance to maritime dominion, 266-267
Neutral “maritime territory”. Sce Internal waters; Territorial seas.
Neutral waters
acts of hostility in, 279, 300
mine warfare in, 303
prohibition against mine warfare, 300
prohibition of use for “safe haven,” 279-280
significance of northern waters, 97
Neutrality
charge of isolationism rejected, 527
guarantor States, 525,
in archipelagic waters, 292-296
international law governing
acts of hostility in neutral waters, 279
Hague Conventions of 1907, 523, 524
neutral territory, 484
participation in world affairs, 530-532
policy of neutrality, 523
credible foreign policy, 527, 529-530
nonparticipation in alliances, 527-528
strong defense, 527, 528-529
rules of, 264
violation of, 278
wartime neutrality, 525
Neutral States, 523, 524-526
Austria, 525, 531
Finland, 525, 531
permanent neutrality, 525
relations with belligerent States, 524
rights and obligations under Convention of the Law of the Sea, 264, 276-277. See also Armed
conflict, rights of neutrals.




226 Readings on International Law

of communication linking the Arctic Basin with the North Pacific. Such control
would enable Soviet Northern Fleet and Pacific Fleet submarines to reinforce
each other without interference along interior lines of operation.“ Soviet naval
literature, such as the influential Morskoy sbornik, emphasizes the key i imy ortance
of controlling access to chokepoints such as the Bering Straits.°> Soviet
capabilities to project naval forces through this region are undoubted. 36
Moreover, modern Soviet SSBNs no longer need to run the gauntlet of U.S. or
NATO antisubmarine warfare barriers, since those in the Northern and Pacific
Fleets have long-range SLBMs which permit them to patrol in bastions close to
the Soviet northern coasts.

Arctic bastions, of course, offer the additional protection of shallow waters,
reducing the advantage enjoyed by U.S. SSNs, as well as of partial ice gover,
which limits antisubmarine warfare operations by aircraft or surface vessels.” The
ice pack also provides some protection from sea surveillance, and its ambient
noise and currents interfere with detection by underwater electronics (sonar),
acoustics (sound), and magnetic anomalies. The Typhoon class SSBN was
designed specifically for operation in ice-covered waters.”® This capability is now
challengeable by the newer-production Los Angeles-class attack submarines
starting with the USS Chicago (SSN-721), commissioned in 1986 and fitted with
bow-mounted retractable diving planes and other features for under-ice opera-
tions.

The new boundary agreement confirms that the U.S. has succeeded in
maintaining uneroded access to the Bering Straits and preserving its freedoms to
operate in the Bering and Chukchi Seas, as well as in the North Pacific and Arctic
Oceans. This reinforces standing U.S. Arctic policy, which lists as a primary
requirement the protection of essential U.S. security interests in the Arctic
region.” Indeed, the Arctic Research and Policy Act of 1984 makes clear that,
in the view of Congress, “as the Nation’s only common border with the Soviet
Union, the Arctic is critical to national defense.”*! In conformity with this
principle, the U.S. was mindful that no precedent be set in the negotiations that
would support the unilateral claims advanced by Soviet theorists to a “sector” of
the Arctic stretching from their northern coasts to the pole itself. Although i it is
unclear whether the Soviet Union has ever officially embraced this theory,” the
USS. has consistently taken care to oppose all such claims, including those made
by allies such as Canada. It need hardly be emphasized that high seas freedoms
to operate on, over, and under the ocean areas of the Arctic are of paramount
importance to the U.S. strategic posture, whether for deployment of SSBNs or
for overflight by B-52s and other U.S. strategic forces.

What does the new agreement specifically provide? First, it makes clear that
the new boundary will generally follow the course of the 1867 line of division,
pursuant to the desire of the parties to “split-the-difference” between their
competing projections of the 1867 line in the Bering Sea and the consequent


26 Readings on International Law

Ill. The Link with Reality; United States Policy and the Falklands/Malvinas
Islands Dispute

By now the military outcome of the confrontation between the United
Kingdom and Argentina over the Falkland/Malvinas Islands has long been clear.
Now it is time to begin the sort of detailed analysis of the miscalculations and
successes of each actor in the international arena that will surely fill the
professional journals of many specialties in the months to come. The outline of
the legal problems is already clear. It differs so radically from the popular
impressions that it may be useful to set some ideas forward as illustrative of the
uses of the law in decision-making.

The pre-19th century bases for British and Argentine claims to the islands
interlock in a pattern that gives neither side much of an advantage over the
other.

Obviously, Papal donations and treaties among Spain, Portugal, and France
are not significant to defeating any British claim; nor are British discoveries and
self-serving assertions a significant obstacle to Spanish claims resting on their own
assertions of right. A British occupation begun in 1766 was followed by a British
abandonment in 1774. The British considered their abandonment of 1774 did
not end the underlying British claim, only the open display of it. The British do
not seem to have protested the Spanish settlement there, which began in 1764
and was abandoned in 1811. At the time Argentina achieved its independence
from Spain in 1816, it could say it had inherited a Spanish claim not translated
into a form that would withstand a British counterclaim; and Great Britain had
maintained a claim that could not withstand an Argentine action to consolidate
its adverse claim. The law cannot resolve such situations to anybody’s satisfaction.
An arbitrary determination that the party with the slightly better claim (51
percent) gets all of the prerequisites of the sovereign (100 percent) and the part
with the slightly less persuasive argument gets nothing, is not a reflection of the
real world. The wise policy maker would be advised of this legal situation and
avoid judicial resolutions or too loud assertions of either country’s supposed
tights.

In 1823, Argentina assumed full control of the Islands and in 1826 installed
an effective administration. In 1830 the United States was opposed to any
effective government in the Islands. American fishing and whaling interests, and
others, apparently wanted anarchy there. In 1831 an American naval expedition
ousted the Argentine administration. Argentine protests were rejected. In 1833
a British administration was installed, which the United States did not protest
despite the opposition to European colonies in the Western Hemisphere made
formal American policy in the Monroe Doctrine of 1823 and loudly reiterated
ever since. Argentine protests were rejected again. The Argentine national sense
of grievance against both the United States and Great Britain thus has strong
roots.


576 Readings on International Law

Second World War. Partly because of a relative paucity of bureaucratic ex-
perience in their foreign policy establishments with bilateral negotiations, and
partly because it was obviously sensible to do so, both sides called primarily upon
their armed forces to staff their negotiating teams. Thus the majority of
negotiators were naval officers—representatives of the very people who would
have to live under any new agreement and would be charged with making it
work. Despite political tension arising from conflicts in the Middle East and
Southeast Asia, the two sides held very direct and productive talks. The result,
achieved in relatively little time, was a very substantive navy-to-navy agreement
that was signed on 25 May 1972 at the Nixon-Brezhnev summit in Moscow—
exactly four years to the day after the crash of that Soviet maritime patrol
bomber."

Officially known as the Agreement between the United States of America and
the Union of Soviet Socialist Republics on the Prevention of Incidents on and
over the High Seas, and more commonly as IncSea, the agreement contained
several unusual features.? It provided, inter alia, that each side should avoid
dangerous maneuvers, hindrance of navigation by dropping various objects near
ships, and mock attacks simulating the use of weapons against aircraft or ships.

The Incidents at Sea Agreement also contained another then-unique feature;
this was the requirement of Article [X for an annual review. Put into the
agreement at the behest of the deputy chairman of the U.S. delegation, Herbert
S. Okun, this provision allowed for continuing mutual contact between the two
navies and enhanced to the greatest possible extent both the implementation of
the agreement itself'and the professional associations and interests of naval officers
on both sides. The Soviet and American naval staffs and attachés each used the
new channels to call attention to apparent deviations from the terms of the
agreement, and for other relevant information as well. These matters were then
considered at the annual reviews. Such annual review provisions are now found
in, for example, many of the arms control agreements, both bilateral and
multilateral, to which the sides (that is, the U.S. and Russia) are now parties.

Not long after it entered into force, the new agreement was severely tested
during the 1973 October War in the Middle East. Nearly 150 U.S. and Soviet
warships were crowded into the waters of the eastern Mediterranean, placing a
premium on “sea room”; the atmosphere was highly charged. However, while
compliance was not perfect, the agreement was effective in that major incidents
did not occur and the regional crisis did not escalate into conflict between the
world’s two major navies?

During the first half of the 1980s, relations between the United States and the
USSR again became strained, and occasionally very tense. Contributing to this
situation were the Soviet war in Afghanistan and the NATO deployment of
Pershing II ballistic missiles and ground-launched cruise missiles in Western
Europe. This period also saw 2 movement toward larger-scale exercises at sea


312 Readings on International Law

193, LEVIE, supra n, 189, at 42-44.

194, As quoted by LEVIE, id., at 44.

195, LEVIE, supra n, 189, at 177.

196. 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 n. 61, para. 9.2.1.

197. The annotated version of NWP 9 cites the Corfu Channel case, supra n. 82, for this proposition,

198. Impliedly this includes neutral archipelagic waters. See NWP-9, supra n. 61, para. 7.3.6,

199. Canadian Manual, supra n. 71, para. 710.

200, Id., para. 703.

201. Id., para. 1509.

202. German Manual, supra n. 72, para. 1039.

203. German Manual, supra n. 72, para. 1010. As previously noted, paragraph 1012 of the German Manual
equates neutral or nonbelligerent EEZs with high seas insofar as acts of naval warfare are concemed.

204, NWP 9, supra n. 61, para. 9.2.3, subpara. 6, Note that the German Draft Manual states that there is
no right of protective mining of strats in times of crisis buts silent 2s to the mining of straits in armed conflict.
German Manual, supra n, 72, para. 1041 (emphasis supplied).

205, LEVIE, supra n.189 at 178.

206. See Reisman and Lietzau, supra n. 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 place, 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 n. 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 n. 67.


106 Readings on International Law

Soviet authorities would therefore attempt to stand out against any drift in this
direction, though some of its objections might not be as strong as otherwise might
be expected if those analysts are correct who have argued that the anti-SLOC
mission has a low priority in the Soviet naval mission structure.®

International norms will change, regardless of Soviet preferences. Territorial
impulses on the part of coastal States seem likely to be especially strong in
northern waters, bounded as they are by States that are technologically advanced,
energy-short, maritime-minded, and administratively competent. If restrictions
are to grow in the north it would seriously complicate Soviet naval behavior.
The United States, on the other hand, could more easily operate within a more
restrictive regime, inasmuch as its allies control the important coastal waterfront.
This condition would not be present in most other parts of the world, and so
the United States would be concerned about endorsing the general principle of
the extension of territorial control. As a result, both superpowers would share a
common and hostile attitude toward restrictions on the passage of warships
through EEZs.

Should a large section of the international community decide in favor of
increased restrictions on foreign warships in EEZs, both superpowers would have
to consider a variety of possible regional military implications. It would mean
that if the U.S. Navy is to continue to have a free run of the northeast Atlantic,
then it would be imperative to maintain the loyalty of the allies. The withdrawal
from the alliance of any one of the northern flank allies would be even more
serious than at present. This in turn would give those states increased bargaining
power over the United States. On the Soviet side, the potential use of its navy
for crisis deployments in the North Atlantic would be seriously challenged, but
so far this role has been very limited. To overcome some of its problems the
Soviet Union might attempt to negotiate special arrangements with particular
coastal countries in order to ensure continuing naval access; rejecting such a
proposal might be politically embarrassing for any coastal country. If, in the event
of a more restrictive regime being claimed, the Soviet Union felt it had to
disregard the wishes of a coastal State in a particularly urgent case, this could
create a difficult diplomatic situation, but not one the Soviet Union would avoid
if its “vital interests” were affected. Soviet leaders might be willing to pay the
diplomatic price involved or, alternatively, might attempt to circumvent the
problem by keeping more forces fully deployed forward, in order to avoid any
delay in reaction time in a crisis. This would put a premium on strategically
placed countries for the use of their bases and facilities. The Caribbean and West
Africa would be the likely areas of increased Soviet interest. This requirement
would complicate Soviet foreign policy, but it would also add a new direction
of threat to NATO shipping in the event of war.

Tt should be evident that it would not be impossible for either superpower to
live with a more restricted regime in northern waters, but it also should be evident


200 Readings on International Law

international navigation and overflight interests on and over the seas against
excessive maritime claims.

Several key terms and concepts, which have gained the force of international
law through custom, past and present practices, with some codified in conven-
tions and treaties such as the recent comprehensive 1982 LOS Convention, need
to be discussed briefly to put the issues in context.

The territorial sea is a “belt of ocean which generally is measured seaward
from the baseline on the coastal or island nation and subject to its sovereignty.”*
(Unless special rules apply, the baseline is the low-water line along the coast as
marked on that nation’s official large-scale charts.) The United States maintained
its traditional 3-nautical mile territorial sea until 28 December 1988 when
President Reagan proclaimed a 12-nautical mile territorial sea. As in the past, the
United States continues to respect other nations’ territorial sea claims up to a
maximum breadth of 12 nautical miles.® However, the United States has made
it clear that it will not recognize aspects of such a claim which do not “accord
to the USS. its full rights in the territorial sea under international law.”” One such
important traditional right is that of “innocent passage” on the surface through
a nation’s territorial sea.®

Also, a contiguous zone of up to an additional 12 nautical miles, ora maximum.
of 24 nautical miles from properly drawn baselines, may be established for the
limited purposes of preventing infringement of a coastal State’s “customs, fiscal,
immigration or sanitary laws and regulations within its territory or territorial
sea.”?

Finally, under the 1982 LOS Convention, a coastal nation may establish an
exclusive economic zone (EEZ) of up to 200 miles from the baseline. In the
EEZ, a state may regulate the exploration of natural resources, the production
of energy from the water, currents and wind, maritime scientific research, the
establishment of artificial islands, and other similar resource-related activities,'°
However, with the exception of these purpose-oriented, express extensions of
control into the contiguous zone and the EEZ, traditional high seas freedoms of
unrestricted navigation and overflight endure."

In other words, the degree of control exercised by the coastal nation is
inversely proportional to the distance from its shores. While the vessels of other
nations have only the limited rights of innocent passage, including use of force
only in self-defense, within the limits of a proper territorial sea, the rights of
vessels and aircraft in the contiguous zone and EEZ are minimally regulated by
the adjacent coastal nation. It is important to emphasize the unhampered nature
of the right of innocent passage. There is no recognition under the 1982 LOS
Convention nor by the United States of any right of a coastal nation to impose
a precondition of permission or notice prior to the exercise of this fundamental
right.


Terry 459

balance and effectiveness would suggest that a conception of impermissible
coercion, which includes threats of force, should be countered with an equally
comprehensive and adequate conception of permissible or defensive coercion.”">

Asecond restriction which doctrinaire legal scholars attempt to impose would
permit self-defense only when an armed attack “occurs.” This interpretation is
based not only on Articles 51 and 2(4) but also on Article 2(3), which states: “All
members shall settle their international disputes by peaceful means in such a
manner that international peace and security, and justice, are not endangered.”
Tan Brownlie argues that while “isolated or sporadic” incidents may constitute
aggression, they do not reach the threshold of an “armed attack.”"® It has thus
been argued that because the definition of armed attack is narrower than
aggression, then “certainly self-defense against armed bands would not seem to
be included within the permitted area.”

Such rigid interpretations do violence to the very values underlying Article
51 and to the customary international law it seeks to codify. Neither the plain
language of Article 51 nor U.S. practice in addressing incidents of aggression
under its inherent right of self-defense suggests such a restrictive interpretation.

In 1818, the United States establist.ed the right to enter the territory of another
State to prevent terrorist acts where the host is unable or unwilling to quell the
continuing threat. The Seminole Indians in Spanish Florida had demanded “arms,
ammunition, and provisions or the possession of the garrison at Fort Marks.”
President Monroe directed General Jackson to proceed against the Indians with
the explanation that the Spanish were bound by treaty to keep her Indians at
peace but were incompetent to do so.'®

Subsequently, in 1873, the standard under which anticipatory self-defense
could be justified was more clearly established. During an insurrection in Canada,
the American steamer Caroline was used to transport men and materials for the
rebels from American territory into Canada across the Niagara River. The U.S.
Government had shown itself unable or unwilling to prevent this traffic, and, in
these circumstances, a body of Canadian militia crossed the Niagara, and, after a
scuffle in which some Americans were killed, sent the Caroline adrift over the
falls. In the controversy that followed, the United States did not deny that
circumstances were conceivable which would justify this action, and Great
Britain for her part admitted the necessity of showing circumstances of extreme
urgency. They differed only on the question of whether the facts brought the
case within the exceptional principle. Charles Cheney Hyde has summed up the
incident by saying that “the British force did that which the United States itself
would have done, had it possessed the means and disposition to perform its
duty.”!? The formulation of the principle of self-defense in this case by the U.S.
Secretary of State, Daniel Webster, has met with general acceptance. There must
be shown, he said, “a necessity of self-defense, instant, overwhelming, leaving
us no choice of means and no moment for deliberation.””°


494 Readings on International Law

ANALYSIS OF PROPOSED DECEPTION

Is proposed deception on

list of prohibited acts?
(Ref: NWP 9, Paras.
42.1.2 and 12.2-12.7)

Commander
@) must refrala

Is proposed deception on list

of permitted deceptions?
(Ref: NWP 9, Paras. 12.1.1,
12.3.1, 12.5.1, 12.5.3 and
12.6)

CD,

Would application of the
proposed deception constitute
perfidy as defined by NWP 9
para. 12.1.2?

RO)

Commander may Commander must
proceed refrain

that the deception does not constitute perfidy may the commander take the action
he proposes.

Other people’s experience in the application of deception is extremely useful
for the commander’s analysis. Although commanders ashore have traditionally
employed a wider variety of deception than naval commanders,” naval history
provides ample precedent. A commander should not dismiss a 17th-century
application of deception as unworthy of his attention. Even if the technique used
in an old situation is no longer viable, the method for determining whether the


426 Readings on International Law

55. The Washington Post, 7 February 1981, p. 10.

56. The New York Times, 3 February 1981, p. B-13.

57. Md.

58. EVANS, CALLING A TRUCE TO TERRORISM 63-67 (1979). This book provides an excellent
discussion of deterrence theory in relation to terrorism.


Robertson 5

principal motivating force behind obedience to it is the mutual well-being of the
members of the society. The same is true among the members of the international
society, the nation-states that make up the international community. Naval and
aerial navigators know that there are similar binding traffic rules for ships and
aircraft in both domestic and international waters and air space.

At this point a skeptic might be tempted to object that though this may be
true, we have used only everyday examples far from the central issues of
international relations—issues of war and peace, survival of nations, protection
of basic human rights, and so forth. Indeed, the ultimate objective of international
law is to create an international order in which nations and peoples can live in
peace and justice. Like domestic law, however, international law is still an
imperfect system. To quote Judge Baxter again, “It is quite clear that man has
not been able to legislate war and aggression into defeat or even into retreat,
although the institutions which the international community has developed
exercise some restraints on the use of force. [International] law cannot cope
adequately with the need for peaceful change. If a nation needs more territory
or larger markets, the law cannot provide them. It cannot make unhappy people
happy; it cannot turn arid desert into a flowering paradise; it cannot bring
international tranquility and understanding where discord reigned before. In-
deed, it might be safe to say that international law has been most successful in
dealing with minor matters and with slighter causes of international friction.
Probably it shows a greater facility in preserving the status quo than in doing
justice.”>

This is not surprising. While we would hope that a perfect system of justice
would deal with such matters and operate best in times of high tension or crisis,
‘we can note that domestic systems suffer from the same imperfections.

The Nature, Origins, and Sources
of International Law

Accepting for the moment the fact that there is a system called “international
law” that functions in the international community (though admittedly in an
incomplete and imperfect way), let us turn to a brief examination of its nature,
origin, and sources.

To this point we have not tried to define “international law.” No single, simple
definition is possible, but at the risk of oversimplification, let us state one as
follows: “International law is that body of rules or norms that are considered
legally binding by states in their intercourse with each other.” Note several things
about this definition:

* It uses the phrase “rules or norms.” In some cases the term “norms” is more
appropriate than “rules,” since the latter implies more specificity than in fact
exists in many situations.


Chapter 22

International Law and the Use of
Force in Peacetime:
Do U.S. Ships Have to Take the First Hit?*

George Bunn

B= one missile may sink a ship, naval officers often ask:

I know I can use force in self-defense if my ship is actually attacked. But do I have
to take the first hit?

This paper discusses how international law, Navy Regulations and naval rules
of engagement (ROE) answer this question for the on-scene commander. It also
deals with the more general question sometimes asked by the President and other
national command authorities: Are there circumstances when the United States
may use force first?

In general, international law, Navy Regulations and ROE permit the use of
force in peacetime only in self-defense. Their policy is to restrain aggression, to
prevent the outbreak of hostilities, and to limit escalation if shooting starts. There
are, however, a few circumstances where shooting first is permitted.

First, Navy Regulations and typical peacetime ROE authorize an on-scene
commander to shoot first when necessary for anticipatory self-defense of forces
under his command—for example, to shoot a kamikaze aircraft diving on a ship
in time to ward off the blow. This is called unit self-defense.

Second, shooting first may be specifically authorized by higher command in
a few other cases, including:

* when necessary for anticipatory self-defense of other U.S. forces, citizens or
territory (“national” self-defense);

* when authorized by the United Nations or a regional collective security
agency to deal with a threat to the peace;

* to protect Americans in danger in foreign territory because, for example, of
an internal insurgency or civil war; or

* at the request ofan established government to help put down an insurgency
within its territory.

* Reprinted from the Naval War College Review May-June 1986.




Friedlander 385

25. 18 U.S.C, Sections 1111-1116, vol. 18, at 878 (1976).

26, See WILKINSON, POLITICAL TERRORISM (1974); BELL, A TIME OF TERROR: How
DEMOCRATIC SOCIETIES RESPOND TO POLITICAL VIOLENCE (1978); LAQUEUR, TERRORISM (1977).

27. The Times (London), 30 June 1976,

28, Council of Europe, European Convention on the Suppression of Terrorism, November 1976,
reprinted in LL.M. at 1272 (November 1976).

29, BELL, supra n, 26 at 158,

30, Safety of International Civil Aviation, G.A. Res. 32/8, 32 U.N. GAOR, U.N. Doc. A/RES/32/8,
1977. CE U.N., Report of the Security Council, 16 June 1976-15 June 1977, U.N. GAOR, Supp. No. 2,
U.N. Doc. A/32/2, 1977, pp. 34-37. See also Friedlander, supra n, 14 at 283, 287-288.

31. Draft Convention against the Taking of Hostages, U.N. Doc. A/AC.188/L.3, July 1977.

32, G.A. Res. 31/103, 31 U.N. GAOR, U.N. Doc. A/31/430, 1976.

33, ULN., Report of the Ad Hoc Committee on the Drafting of an Intemational Convention against the
Taking of Hostages, U.N. GAOR 33, Supp. No. 39, U.N. Doc. A/33/39, 1978, pp. 5-16; also cited in U.N.
Chronicle, March 1978, p. 32. France, surprisingly, offered the strongest condemnation, while Algeria—a
frequent haven for hijackers—insisted upon excusing conditions for anticolonial and antiracist liberationists.

34, KISSINGER, AMERICAN FOREIGN POLICY 232 (3rd ed. 1977).

35, See Franck and Lockwood, Preliminary Thoughts Towards an Intemational Convention on Terrorism, 68
‘Am. J. Int'l L. 69 (1974),

36, US.T. 737, T.LA.S. No. 7579 (1973). Canada signed an identical pact with Cuba on the same day.

37, Chicago Tribune, 26 March 1978, sec. 1, p. 42:1.

38, Friedlander, supra n. 14 at 287.

39, S, Res, 2236, 95th Cong,, 1st Sess., 123 Congressional Records, $17706, 25 October 1977.

40, S, 2236, 95th Cong,, 2nd Sess. [Committee Print], 19 May 1978, I am indebted to Mr. Louis G. Fields,
Je., Assistant Legal Adviser, Department of State, for a copy of the current bill.

41, Information provided by Mr. Fields. See also Richard Bradee, “Congress Battles terrorists with Bills,”
Milwaukee Sentinel, 16 August 1978, p. 12:2.

42, Supra n, 34 at 232,

43, The Globe and Mail (Toronto), 26 July 1978 p. 7:1; The World Jurist, July-August 1978, p. 8. Fora
contra view, see the biting fictional rejoinder of Boll, Confession of a Hijacker, The New Yorker 42-43, 9
October 1978,

44, Chicago Tribune, 30 July 1978, p. 6:3. Further explanatory talks took place in Ottawa, Canada, during
November 1978, but serious divisions arose among the seven participating countries over how the Bonn
agreement was to be implemented. (Private information)

45. The Globe and Mail (Toronto), 19 July 1978, p. ‘Now,” editorialized the Globe and Mail, the
seven summit nations “must tell the world’s airlines that they mean it.”

46, The Toronto Star, 17 July 1978, p. 1:6.

47, The Globe and Mail (Toronto), 26 February 1976, p. 11:5.

48, See editorial comment in the Globe and Mail (Toronto), 23 May 1978, p. 6:2. The Senate version,
however, would grant authority to the Minister of Justice to refuse extradition where the offender would be
subject to capital punishment in the requesting State.

49, LA FOREST, supra n, 17 at 32-33.

50, The Globe and Mail (Toronto) 4 August 1978, p. 34:5.

51. Cf. Kittrie, Reconciling the Inreconcilable: The Quest for International Agreement over Political Crime and
Terrorism, 32 YEAR BOOK OF WORLD AFFAIRS 208 (1978); LIVINGSTON, supra n. 13 at 68-71; BELL, supra
n, 26 at 152-157, 165-166; HACKER, CRUSADERS, CRIMINALS, CRAZIES: TERROR AND TERRORISM
IN OUR TIME 303-305, 340 (1977).

52, Friedlander, Terrorism and International Law: What is Being Done? 8 Rutgers Camden LJ. 383 (1977);
Franck, International Legal Action Conceming Terrorism, 1 Terrorism 187 (1978).

53, Letter from David Martin, Editor of Student Lawyer to author, 3 March 1977.

54. ROGERS, UNITED STATES FOREIGN POLICY, 1972: A REPORT OF THE SECRETARY OF STATE
95 (1973).

55. Sce, for example, G.A. Res, 3034 (XXVII), 27 U.N. GAOR, Supp. No. 30, U.N. Doc, A/C.6/418,
1972, and the qualifying words attached to a later resolution of the same title on Measures to Prevent
International Terrorism which Endangers or Takes Innocent Human Lives or Jeopardizes Fundamental
Freedoms, and Study of the Underlying Causes of Those Forms of Terrorism and Acts of Violence which Lie
in Misery, Frustration, Grievance and Despair, and which Cause Some People to Sacrifice Human Lives,
Including Their Own, in an Attempt to Effect Radical Changes, G.A. Res. 31/102 (XXX), 31 U.N. GAOR,
Supp. No. 37, U.N. Doc, A/31/42, 1976.



Contents vii

PART THREE—USE OF FORCELAW.........-2-- 313

CHAPTER 20—FIGHTING BY THE RULES
Christopher Craig (May-Jun 1984)... 1.2... ee eee 315

CHAPTER 21—GRENADA: THE SPIRIT AND THE LETTER
OF THE LAW
William T. DeCamp (May-Jun 1985) ........--.- 321

CHAPTER 22—INTERNATIONAL LAW AND THE USE OF
FORCE IN PEACETIME: DO U.S. SHIPS HAVE TO TAKE
THE FIRST HIT?
George Bunn (May-Jun 1986)... 2... --0 2000s 331

CHAPTER 23—AN APPROPRIATE USE OF FORCE
James H. Webb, Jr. (Winter 1988)... 6... .-2000- 343

CHAPTER 24—THE CONSTITUTION AND PRESIDENTIAL
WAR MAKING AGAINST LIBYA

David L. Hall (Summer 1989)... 2... ee ee eee 351
CHAPTER 25—LAW IN SUPPORT OF POLICY IN PANAMA

James P. Terry (Autumn 1990)... 2... eee eee ee 367

PART FOUR—TERRORISM ... 6-0. eee 375

CHAPTER 26—REFLECTIONS ON TERRORIST HAVENS
Robert A. Friedlander (Mar-Apr 1979) ........2.0- 377

CHAPTER 27—COMBATING INTERNATIONAL
TERRORISM: THE UNITED NATIONS DEVELOPMENTS
L.F.E. Goldie (Winter 1979) 2... 2. . ee eee eee 387

CHAPTER 28—TERRORISM IS... .?
William R. Farrell (May-Jun 1980)... .......220- 401

CHAPTER 29—MILITARY INVOLVEMENT IN DOMESTIC
TERROR INCIDENTS
William R. Farrell Jul-Aug 1981) .........--204- 411

CHAPTER 30—TERRORISTS AND CHEMICAL/
BIOLOGICAL WEAPONS
Elliott Hunvitz (May-Jun 1982)... 1... eee ee ee 427


604 Index

Lombroso, Cesare, 402
Lorence, Air Force Captain Paul F., 354

Madison, Ambassador James Malone, 150
Madison, James, 355, 356, 360
Mahan, Alfred Thayer, 50
Malaysia
extraregional concems, 123
regional authority over Straits of Malacca, 122-123
user passage fees for Straits of Malacca, 124
Malta, refusal to sign European Convention on the Suppression of Terrorism (1976), 380
Marine Pollution protection, 66
Marine technology, mandatory transfer under UNCLOS III, 147-153, 154-156
Marines, U.S.
Beirut bombing of Marine headquarters, 373, 451, 454
helicopter evacuation in Korean and Vietnam conflicts, 473-474
Nicaragua campaign of 1928, 473
Posse Comitatus prohibitions, 414
Maritime exclusion zones
benefits of, 318
in the Falklands/Malvinas War, 315-318
Maritime terrorism.
as piracy, 440-442
coastal State control, 442-444
Geneva Convention on the High Seas, 440, 441
Harvard Researchers’ Draft Convention on Piracy, 440-441
jurisdiction issues, 438-440, 442-444
continental shelf, outer, 439-440, 442
exclusive economic zones (EEZs), 438-439, 442, 443,
maritime zone delimitations, 438-440, 442-444
territorial sea, 438
offshore
distinguished from piracy, 441-442
drilling structures as targets, 433-436
European protections for offshore drilling structures, 435
hijacking of offshore structures, 436
sabotage offshore structures, 435
threatened destruction of offshore structures, 435-436
threatened environmental damage from offshore structures, 436
preventive measures, 444-445, 446
provisions of international law, 436-444
responding agencies, 443-444
“Maritime territorial imperative,” 108-109
Maritime zone delimitations. See also Contiguous zones; Continental shelf; Exclusive Economic
Zones; Territorial seas.
in situ jurisdiction, 443-444
national regulations, 442-444
Martin v. Molt, 360
Massena, Marshal, execution of the Portuguese Ordenanza, 387
Matlock, U.S. Ambassador to Soviet Union Jack, 253
Mauritius, condemnation of Entebbe incident, 396
‘Maury, Matthew Fontaine, 50
Mayaguez crisis, 20, 37-38, 460
Mayalasia, joint declaration on the Straits of Malacca, 120
MccGwire, Michael, 111-113



562 Readings on International Law

in part to satisfy American preferences,” and an announcement that the United
States could not use Japanese bases in the event of another Korean war.'® The
latter action may not be as far away as it seems. Article VI of the 1960 “Treaty
of Mutual Cooperation and Security between United States and Japan,” states
that the United States shall have the use of military facilities in Japan to maintain
peace and security in the Far East. Significantly, Japan’s Foreign Minister
Miyazawa asserted in 1975 that North Korea was not included in the “Far East”
for purposes of the U.S.~Japan security alliance.!® While the statement may have
been nothing more than a diplomatic gesture designed to improve relations with
North Korea, the mere fact that it was made evidences a movement by Tokyo
towards a more flexible Asian policy.

It is by no means inevitable that Japan will decide to ease out of its military
alliance with the United States. To the contrary, the impetus is still in favor of
strong military ties with Washington.” The United States, however, cannot
afford to be complacent or it may witness a shift in Japan’s foreign policy as the
latter acts on its own to cope with the growing Soviet threat.

In response to what can accurately be called Japan’s dilemma, the United States
should take three steps. First, it should develop and communicate an Asian policy
that demonstrates concern for Japan’s needs and interests. Second, the United
States should encourage the development of a more effective Japanese Self-
Defense Force. And third, economic tensions between Japan and the United
States should be dealt with in the overall context of the alliance between the two
countries,

In the past, the United States has seemed content to allow world events to
shape Japan’s foreign policy. Such inattention to Japan’s needs and interests is
quite idealistic in that it assumes a great deal about future U.S.-Japan relations.
Yet those relations are even now showing signs of strain, and the future is not
nearly as predictable as it was just a few years ago. Accordingly, the United States
should devote more attention to Japan and communicate that attention by
coordinating a comprehensive U.S.-Japan Asian policy that addresses the myriad
issues of concern to both countries. Such a mutual undertaking would
demonstrate the sincerity of the American commitment to Japan and might
alleviate some of the problems that have arisen over the last 10 years.

As an additional means of showing support, the United States should address
the growing Soviet threat by improving the capabilities of both the 7th Fleet and
the Japanese Self-Defense Force. Of course, political constraints in both the
United States and Japan limit the available options, but there is still room for
applications of technology that will augment the defense and attack capabilities
of military forces in Japan. For example, more antiair and antiship missiles would
help compensate for the numerical superiority of Soviet forces, and they would
require less reaction time in the event of an unexpected crisis, Similarly, computer
technology, laser guidance systems, and sophisticated surveillance techniques can




Craig 319

Rules of Engagement.

* Ina world where the stakes of escalation become ever higher, the necessity
for clear and comprehensive rules is plain.

* Briefing staffs ashore must anticipate the distant military needs whilst their
counterparts afloat harness and present their ROE requests with clarity,
thoroughness, and an awareness of the political issues involved.

* It is necessary to think through most thoroughly the problem of the
innocent intruder or the fleeting submarine contact.

¢ Educating both the politician and the military man is essential both for the
compilation and the transmission of rules, as well as for the swift and responsible
interpretation required “in the field.”

I believe that for the Royal Navy in the South Atlantic, both the Exclusion
Zones and Rules of Engagement worked well. I never felt my survival to be
threatened by too rigid rules, nor was my flexibility of operation unduly impaired,
and yet my freedom of action was always tied firmly to the political requirements.
Equally important, I believe that throughout the campaign we conducted
ourselves within the bounds of international law, and with due awareness and
concern to our international reputation for a civilized code of conduct.

Commander Craig was the Commanding Officer of HMS Alacrity during the Falklands
Campaign.


Hall 497

sign to falsely identify his warship as a hospital ship.?° Similarly, an aircraft cannot
conceal its national markings as an act of camouflage.”!

False Colors and Dummy Ships

The use of false colors and dummy ships are two traditional naval ruses which
continue to have merit in modern warfare, but which, under certain circumstan-
ces, could constitute perfidy. Although often used in tandem, each has proven
invaluable in battle when used alone.” Under the law of naval warfare, a
belligerent warship not in combat may fly false colors, either those of the enemy
or those of a neutral country; but there is an absolute prohibition against flying
false colors while actually fighting. Thus, commanders are required to hoist their
true colors upon going into action.”° Failure to do so constitutes perfidy. For
example, in 1783, the French frigate Sybille deceived the British man-of-war
Hussar by flying the British flag and pretending to be a prize in distress. When
the Hussar approached to lend assistance, the Sybille opened fire without first
hoisting French colors. Despite this disadvantage, the Hussar overpowered and
captured the French ship. The victorious British captain then accused the Sybille’s
captain of perfidy and publicly broke his sword.“* A more recent example of
perfidy by failure to hoist true colors occurred during World War I when the
British ship Baralong, while flying U.S. colors (the United States then being at
peace with Germany), fired on a surfaced German U-boat.5

One might wonder whether the use of false colors continues to have validity
as a tactic long after the age of sail has passed. This issue was discussed quite
extensively at the Naval War College in the early 1900s. The conclusion drawn.
was that due to developments in tactics and technology, the risk of being lured
by false colors was even greater in modern times than in the day of sail: “The
‘war vessel of early days was also very different from that of to-day. The approach
of the slow sailing vessel of the seventeenth century would allow time to
determine its identity in most instances and to provide for action in case of
mistake. A single shot from a gun of the early type into a vessel of its day would
not, in general, have an effect corresponding to a shot sent into the complicated
mechanism ofa modern war vessel. The fighting in the period before the middle
of the nineteenth century played a very different part in determining the issue of
the conflict. Surprise was not, in early conditions, a matter of gravest importance.
In the old days the contests were relatively long. In modern battles the first shot
or those following soon after seem to have been very often the decisive one.””6

During World War II, when a warship might have found herself in action at
any moment while at sea, U.S. warships always flew their colors while underway.

While the significance of the “first shot” is certainly greater today than it was
80 years ago, or even 40 years ago,the importance of visual contact with a target
has diminished in modern naval warfare. In this era of over-the-horizon targeting,


474 Readings on International Law

Vietnam, where experience taught that flights by medical aircraft within the
combat zone were both a reality and a necessity.!”

Recognizing this technological advancement and change in manner of opera-
tion, Protocol I significantly extends the areas in which medical aircraft may
operate and be entitled to protection. Although guarantees of protection remain
tied to communication to and acceptance of flight plans by the enemy, Protocol
I recognizes the myriad situations in which medical evacuation by helicopter
may occur by affording protection for flights over areas not controlled by an
adverse party (communication not required but recommended, particularly
when within range of enemy surface-to-air weapons systems), areas controlled
by an adverse party (prior agreement required), and within that area identified
in Protocol I as the “contact zone.”"® Medical aircraft operating in the contact
zone without prior agreement do so at their own risk, but are entitled to respect
after they have been recognized as medical aircraft. For military security reasons,
medical aircraft continue to be prohibited from carrying out search and rescue
missions over enemy-controlled areas or in the contact zone.

Substantial progress was made toward resolving the perpetual problem of
identification of medical aircraft and hospital ships. Historically, attacks on each
of these craft have occurred more as the result of failure of identification than
through intentional acts of wrong-doing’” The meter-and-a-half horizontal
green hull band prescribed for hospital ships by Hague Convention X of 1907'®
was deleted from the provisions of the 1949 Geneva Convention for the
‘Wounded and Sick after U.S. Navy tests determined that the band hindered
rather than facilitated visual identification of those ships. Although other tests
confirmed wartime experience that reliance upon visual identification exclusively
was inadequate, efforts at the 1949 Diplomatic Conference to adopt modern
means of communication and detection for identification of medical aircraft and
hospital ships were unsuccessful.

In 1973 the ICRC convened a meeting of experts from 11 nations and 4
specialized international organizations to consider signalling and identification
systems for medical transports. A system of distinctive visual and non-visual
signals to supplement the emblem of the red cross was recommended and
ultimately incorporated into Annex I to Protocol I for unilateral adoption by a
party to a conflict if desired. These systems include: (a) use ofa flashing blue light
by medical aircraft; (b) a distinctive radio signal for medical units and transports;
and (c) a designated Secondary Surveillance Radar (SSR) mode and code for
medical aircraft. Further, the flashing blue light and SSR. may be adopted for use
by other forms of medical transportation upon special agreement between the
parties to a conflict. Although technically feasible, efforts to establish a recognized
underwater acoustic transmitter system as a means for identification of hospital
ships by submerged submarines was placed in abeyance pending further study."


280 Readings on International Law

other hand, neutrals may, if they choose, close their territorial seas except for
those parts leading to an international strait to passage by belligerent warships.’”
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.”®° 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 passage 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.®! This view was
reinforced by the Corfis Channel case,®* 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 ICJ 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 J previous authorization of a coastal State, provided the passage is in-
nocent.

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

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 passage would provide insufficient protection for


Robertson 547

(©) To kill or wound an enemy who, having laid down his arms, or having no
longer means of defence, has surrendered at discretion;
(@) To declare that no quarter will be given.

Although Hague IV is by its own terms applicable only to armed conflict on
land,the principle it states in Article 23 is regarded as customary law and applicable
to sea warfare as well.

Until the adoption of the Protocols Additional to the 1949 Geneva Conventions
in 1977, conventions adopted subsequent to the Hague 1907 Conventions regulating
the conduct of armed hostilities did not contain any explicit provisions concerning
the giving of quarter or the obligation to cease hostilities against persons seeking to
surrender. Both of the Additional Protocols, however, do contain such provisions.
Protocol I, which is applicable to international conflicts, provides:

Article 40—Quarter.
It is prohibited to order that there shall be no survivors, to threaten an adversary
therewith or to conduct hostilities on this basis.
Article 41—Safeguard of an enemy hors de combat.
1. A person who is recognized or who, in the circumstances, should be
recognized to be hors de combat shall not be made the object of attack.
2. A person is hors de combat if:
(a) he is in the power of an adverse party;
(b) he clearly expresses an intention to surrender; or
(c) he has been rendered unconscious or is otherwise incapacitated by wounds
or sickness, and therefore is incapable of defending himself; provided that in any
of these cases he abstains from any hostile act and does not attempt to escape.”

Protocol II, which is applicable in non-international conflicts, provides
“fundamental guarantees” in more abbreviated form, in Article 4: “All persons
who do not take a direct part or who have ceased to take part in hostilities,
whether or not their liberty has been restricted, are entitled to respect for their
person, honor and convictions and religious practices. They shall in all cir-
cumstances be treated humanely, without any adverse distinction. It is prohibited
to order that there shall be no survivors.*!

Neither Protocol I nor Protocol II is in effect for the United States, and the
U.S. government has stated that it will not ratify Protocol I. However, as stated
in the U.S. Navy’s official annotation of the Commander’s Handbook on the Law
of Naval Operations, NWP 9, the Protocol I and II language is merely a
reaffirmation of the Hague IV rule “in more modern language.”°?

From the foregoing discussion, it is clear that under both customary and treaty
international law, combatants have the obligation to desist from hostile acts
against enemy miliary persons or units that manifest an unconditional intent to
surrender. This is reflected in the U.S. Navy’s current operational doctrine,


600 Index

preparation for Pearl Harbor attack, 232
prisoners of war in Siberia, 233
proposal for declaration of principles regarding environmental impact of armed conflict, 537
reaction to North Korean military boundary zone, 206, 215
relations with Nixon administration, 555, 556, 557
Russo-Japanese War of 1914, 207
Sea of Okhotsk, 560
Soviet concerns about Sino-Japanese relations, 558
Soviet fishing rights and competition, 559
Soviet military presence around Japan, 559
Soviet military pressure on Japan, 555, 559, 560
Soviet-Japanese bilateral talks (1991), 239, 240
St. Petersburg Treaty (1875), 232
surprise attack on Port Arthur (1904), 233
transfer of marine technology under UNCLOS III, 151
‘Treaty of Portsmouth of 1905, 233
USS. relations
encouragement of more effective Japanese Self- Defense Force, 562-563
influenced by improved Japanese relations with PRC, 557-559
influenced by Soviet military threat, 559-560
Japanese fishing complaints about U.S. economic zone, 563
need for coordinated U.S.-Japan policy on East Asia, 558-559
perceived decline in U.S. commitment, 555-557
perceived U.S. preoccupation with Western Europe, 556
perceived Congressional wish for Japan to assume greater defense burden, 556
security alliance with U.S., 555-564
‘Treaty of Mutual Cooperation and Security between United States and Japan of 1960, 562
U.S.-Soviet detente and U.S.-Japan relations, 447
war crimes, 23
working with U.S. to address Soviet threat, 562-563
Jefferson, President Thomas, 357-358, 358
Jessup, Phillip, 267
Johnson, President Lyndon B., 35
Joint Operations Planning System (JOPES), 485
Joint Strategic Capabilities Plan (JCSP), 484, 485,
Judicial decisions, hierarchy of, 8
Jurisdiction over extradition. See Extradition practices.
Jurisdiction, coastal state. See Coastal state.
‘Just Cause, U.S. Operation, 367, 369, 370
Justice, U.S. Department of, FBI oversight, 417

K

Kaifa, Japanese Prime Minister, 231, 235, 238, 240
Kampuchea, 20
naval force, 37
Soviet use of biological/biochemical weapons in, 505
Karl XIV Johan, King of Sweden (Jean Baptiste Bernadotte), 526
Karmal, Babrak, 323
Katie K,, 221
Kellogg, Secretary of State Frank, 461
Kennecott Consortium, 153
Kenya, restricting military use of seabed, 290
Kester, John, 511
Khomeini regime, 437, 456
Khrushchev, Soviet Premier, 137
Kidd, Admiral Isaac M., 132, 138


96 Readings on International Law

NATO Europe is heavily dependent upon maritime transport for trade, energy,
and raw materials. In addition, the North and Norwegian Seas and Arctic waters
have become increasingly important as actual and potential sources of economic
wealth, especially in the energy field. In wartime the Atlantic would provide
access between NATO Europe and the linchpin of the alliance, the United States.
The bulk of the reinforcements upon which the successful prosecution of a long
war would depend would have to move by sea. The Norwegian Sea and the
Greenland-Iceland-United Kingdom (GIUK) gap would be areas in which major
battles would be fought for both sea denial and sea control purposes. NATO
forces would seek to minimize the Soviet submarine threat and create the
conditions for the provision of reinforcements and the projection of force.
Important battles would take place for the control of northern Norway, the Baltic
exits, and Iceland, for these would be immediate Soviet targets. Because of the
critical importance of the reinforcement of NATO Europe in the event of war,
it is politically important that the European allies have confidence that the United
States has both the will and capability to carry out the task. Conversely, the
undermining of this confidence in peacetime is a tactic by which the Soviet
Union might hope to weaken the bonds of the alliance.

NATO North America. In peacetime, the North Atlantic provides access for a
wide variety of imports and exports, and is an increasingly significant actual and
potential source of energy. The North Atlantic provides a major deployment
area for U.S. SSBNs and aircraft carriers targeted against the Soviet Union; it is
also a vital area for the deployment of U.S. antisubmarine and antisurface
surveillance efforts. In wartime, the main sea line of communication (SLOC) for
the bulk of (mainly U.S.) reinforcements to all parts of the alliance would pass
through northern waters; these SLOCs would therefore be the scene of critical
battles.

The Soviet Union. In both peace and war the northeast Atlantic provides ingress
and egress for the main Soviet Fleet and its associated air forces based on the Kola
Peninsula. The Soviet Northern Fleet contains about two-thirds of the Soviet
Navy’s SSBNs, cruise missile submarines and missile-armed maritime aircraft.
The western Atlantic and the Barents Sea are deployment areas for Soviet SSBNs.
Extensive U.S. nuclear power is targeted at the U.S.S.R. from northern waters,
and so the northeast Atlantic provides access for Soviet attempts to counter this
threat. Since the mid-1960s the Soviet Navy has moved forward to meet its
various threats, and so has pushed out its area defense responsibilities in northern
waters. But in one respect, the submarine threat to western SLOCs, extensive
areas of the North Atlantic have long been of interest to the Soviet Navy. The
Baltic is of significance because it provides access to the Leningrad area and the
coasts of important Warsaw Pact allies. Apart from fishing, the economic value
of northern waters to the Soviet Union is potential rather than actual, but it is
interested in resource exploitation in NATO-controlled areas both because of


Walker 55

reviewed later in this article. Law, as part of the effective power process (as
distinguished from naked power, or the assertion of authority by sheer expedien-
cy or brute force), is seen as the flow of authoritative and controlling decision.
Put other ways, law is the comprehensive process of authoritative decision, or
the constitutive process, in which rules are continuously made and remade. The
functions of rules of law are to communicate the perspectives (demands,
identifications and expectations) of people in communities about this com-
prehensive process of decision. The rational application of these rules in particular
instances requires their interpretation, as with any other communication, in terms
of who is using them, with respect to whom, for what purposes, and in which
contexts. Law is seen, then, as the proper result of the power process; but to a
policy scientist law must be viewed in the broader context of other values—for
example, Jaw (as commonly understood by laymen) must be considered in
relation to the “laws” of wealth or economics (also as commonly understood by
the layman). Furthermore, the functioning of the effective power process, or
Jaw, must be considered against a background of interdependent nations and
other communities. “No State has complete freedom of effective choice today.
‘We are all scorpions in the same bottle.”

Janis’ study does not explicitly adopt a policy science approach. He does
recognize this interactive process indirectly by his reference to McDougal and
Burke’s Public Order of the Oceans in Chapter 6, and in his introductory declaration
that “[t}he law of the sea is in the midst of turmoil.” Regrettably, he does not
postulate a definition of “the law of the sea,” although he is careful to define
seapower as “force and threat of force on the oceans.” It would appear, however,
from close examination of the book and its sources that he goes at least halfway
toward the policy scientist’s contextual treatment of law within the social process.
Citation of U.N. General Assembly resolutions (not considered “law” by
traditional writers), preparatory works of conventions (not approved by some
scholars as bases for interpretation of treaties except in specific circumstances),
and the inclusion of various pressure groups’ attitudes, i.e., the U.S. maritime
industries’ positions on law of the sea issues), point toward Janis’ unarticulated
employment of policy scientists’ phase analysis.

Phase Analysis. Phase analysis is a breakdown of law as the comprehensive
process of authoritative decision into component elements and sequences, even
as the careful military commander plans an operation with explicit reference to
timing, units of friendly and enemy forces involved, and so on. The policy
scientist’s phase analysis includes six or seven descriptive reference points: (1)
participants (who interacts, from individuals through nations and the world
community as a whole); (2) perspectives (how a participant views a problem, i.e.,
as a neutral, detached observer or as an advocate of a point); (3) situations (the
physical circumstances of an interaction, which include geographic features (a


Chapter 40
The Obligation to Accept Surrender*

Rear Admiral Horace B. Robertson, Jr., JAGC, U.S. Navy, Retired

n the day of the opening of offensive operations by coalition forces in the
1991 Gulf War, a United States Navy guided missile frigate, the USS
Nicholas (FFG 47), in tactical control of a surface action group (SAG) consisting
of itself and several Kuwaiti Navy ships, was ordered to a position amid offshore
oil platforms in the northern Gulf. Its missions were to conduct combat search
and rescue in support of coalition air attacks, which had just begun, and to
conduct anti-surface operations against any Iraqi units that might be in the
vicinity. Upon approaching the zone after dark, the Nicholas launched reconnais-
sance helicopters to search the area and to determine if the oil platforms were
manned. Thermal imaging by the helicopters disclosed that some of the platforms
were indeed manned, and the helicopter personnel observed what appeared to
be shelters and bunkers on several of them. Since the wells had been capped and
the platforms abandoned before the war, the commanding officer (CO) of the
Nicholas concluded that the personnel on the platforms were probably Iraqis and
that the SAG could not safely operate in the vicinity unless the Iraqi forces were
removed, The CO reported his observations to superior authority and requested
permission to use force to remove the Iraqi personnel from the platforms.
‘When permission for the attack was received the next day, the CO sent out
helicopters for further reconnaissance. Approaching the platforms to as close as
a hundred yards at a 150-foot altitude, the helicopters were not fired upon and
their crews were able to observe 23mm anti-aircraft batteries on the top decks
of several platforms, ammunition cases next to the guns, personnel in green
fatigues standing around on the platforms, sandbagged bunkers and wooden
personnel shelters, Zodiac (rubber) boats, diving gear, and communications
antennas. They also observed two persons on two separate platforms waving
white cloths. These observations were reported to the ship, where they were
reported to the CO and logged in the Tactical Action Officer’s (TAO) log. The
log entries included the reports that the helicopter personnel had observed
personnel waving “white flags” on two platforms. At no time did the helicopters
observe any hostile acts, the manning or training of any weapons, or receive any
fire, even though they were very close to the Iraqis and clearly visible, and thus

* Reprinted from the Naval War College Review Spring 1993.


Neubauer 193

USS.S.R. Article 12.1 of those Rules provides: “The innocent passage of foreign
warships through the territorial waters (territorial sea) of the USSR for the
purpose of traversing the territorial waters (territorial sea) of the USSR without
entering internal waters and ports of the USSR shall be permitted along routes
ordinarily used for international navigation:

* in the Baltic Sea: according to the traffic separation systems in the area of
Kypu Peninsula (Hiiumaa Island) and in the area of the Porkkala Lighthouse;

* in the Sea of Okhotsk: according to the traffic separation schemes in the
areas of the Cape Aniva (Sakhalin Island) and the Fourth Kurile strait; (Paramushir
and Makanrushi Islands);

* in the sea of Japan: according to the traffic separation system in the area in
Cape Kril’on (Sakhalin Island)."*

Thus, along the enormous Soviet coastline, only these several areas are open
to innocent passage for warships.

Negotiating History

There is no rule of customary international law to the effect that coastal States
may limit innocent passage of warships to traditional or other designated
navigation routes. The 1958 Convention on the Territorial Sea and the Con-
tiguous Zone contains no such provision. None of the Official Drafts preceding
the 1982 LOS Convention had a rule to that effect. Even the Soviet Draft Articles
on the Territorial Sea (Soviet Draft) did not include such a rule. In fact, the Soviet
Draft articles on innocent passage were nearly identical in structure and substance
to those finally adopted in the Convention.!°

Like the 1982 LOS Convention, the Soviet Draft provided that coastal States
may adopt laws and regulations for safety of navigation (Soviet Draft, Article 20)
and, where navigational conditions make it desirable, establish traffic separation
schemes (Soviet Draft, Article 21). The Soviet Draft also contained the provision
that coastal States “shall not hamper innocent passage through the territorial sea
or discriminate amongst foreign ships in respect of such passage.” (Soviet Draft,
Article 18).

The notion that coastal States should have the right to limit warship passage
to traditional or other designated navigation routes was contained within a
proposal advanced by Mr. Roe, a representative of the Republic of Korea, at an
UNCLOS III committee meeting on innocent passage in the territorial sea. Mr.
Roe stated: “[T]he passage of warships through a territorial sea which did not
constitute a necessary and important route for international navigation should be
differentiated from the passage of other types of vessel[sic]. A coastal State should
have the right to require foreign warships passing through its territorial sea to
give prior notification of that passage or to obtain prior authorization for it.”
The proposal regarding warship passage through “necessary and important


10 Readings on International Law

institutions are regarded as international “persons,” as are certain non-
governmental organizations (commonly call NGOs). There is even some indica-
tion that certain intergovernmental consortia and transnational corporations have
some characteristics of international persons; this idea, however, is still in its

infancy.

The Codification of International Law. A second major trend in contemporary
international law is codification, i.e., rendering unwritten law into formal written
form.

As noted, one of the two primary sources of international law is custom (the
other being treaties). Customary law is just as valid and binding as treaty law, but
it suffers from a number of difficulties and ambiguities. For one, customary
practices are often difficult to prove. Also, is a practice, however uniform and
long-standing, followed out of obligation (thereby becoming law) or merely from
non-binding habit? Further, a general principle may be firmly established by
custom, but the details of its contents may be incomplete or fuzzy around the
fringes. Only a written treaty text can fill in the particulars. These issues have
created an impetus to convert customary practices into treaties, thus making them
explicit, stable, and definite obligations.

This movement was given additional momentum by the creation by the
United Nations, soon after its founding, of the International Law Commission.
This Commission, which is made up of legal experts acting in their individual
capacities and not as representatives of their States, has as its mission the
codification and progressive development of international law. In the more than
forty years of its existence it has prepared draft texts in a number of areas that
previously had been governed only by customary international law. A number
of these draft texts have been submitted to international conferences for negotia-
tion as multilateral treaties, and many have entered into force. The four treaties
on the law of the sea adopted in 1958 by the First Geneva Conference on the
Law of the Sea are products of this process. Likewise, the Vienna Convention
on the Law of Treaties, the Vienna Convention on Diplomatic Relations, the
Vienna Convention on Consular Relations, and several others have resulted from.
the same approach.

Codification has also proceeded in other ways. The United Nations Con-
ference on the Law of the Sea, which adopted the 1982 U.N. Convention on
the Law of the Sea—perhaps the most ambitious undertaking in codification and
development of international law ever undertaken—did not originate with the
International Law Commission. It resulted from a series of U.N. General
Assembly resolutions creating a Seabed Committee that served as a preparatory
committee for the Third United Nations Conference on the Law of the Sea.

Another factor behind the movement toward codification is the desire of Latin
American, African, and Asian States to have a voice in shaping international law.


Chapter 24

The Constitution and Presidential War
Making against Libya*

Lieutenant David L. Hall, U.S. Naval Reserve

ince the Vietnam War, U.S. military operations have been followed by intensive

but short-lived debates about the constitutionality of the unilateral use of
military force by the President.' The tone of these debates became especially urgent
during the development of what has been called a “compellent diplomacy” under
President Reagan. Opponents of presidential war making have argued that since
Congress alone is empowered to declare war, the President exceeds the scope of
his constitutional authority by employing force abroad without a declaration of war.
Proponents of the President’s actions have claimed that his authority as the nation’s
chief executive and as commander in chief* of the armed forces justifies his actions.
Superimposed over these constitutional debates have been statutory wrangles about
the President’s compliance with the requirements of the War Powers Resolution,>
which was enacted in 1973. Some observers have found the legal issues to be either
overwhelming or irrelevant; after the Grenada intervention, The Wall Street Joumal
wished the lawyers would “shut up.”® Nevertheless, the stakes in these debates are
quite high: at issue is not only the question of which branch of government is
constitutionally empowered to make war, but also the broader question of how
seriously the Constitution is to be treated in determining the distribution of war
powers.

One source of confusion and incoherence in the post-Vietnam war powers
debates has been the failure of many participants to distinguish the question of
whether the President’s actions were lawful from the question of whether they were
wise.” This article is about the former; it seeks to determine whether the circumstan-
ces under which the Constitution permits the President to use military force, wisely
or not, were present during the 14 April 1986 air strikes against Libya.

The Libya Mission as a Case Study

On more than a hundred occasions since the Constitutional Convention of
1787, Presidents have waged war without a congressional declaration.® During

* Reprinted from the Naval War College Review Summer 1989.


506 Readings on International Law

were frozen in place, unaware until regaining consciousness many hours later
that they had in fact been attacked and immobilized.”

Acommon denominator of all these examples is the breadth and versatility of
Soviet biochemical capability and doctrine. For them, it isa flexible and powerful
tool—a frontline rapier as well as a global blunderbuss. As John Hemsley sizes
up the situation, “it would appear that the Soviet High Command considers that
current developments in novel CB agents . . . [are] leading to a quantum, rather
than an incremental, change in the nature and practice of war.” In contrast,
the NATO/USS. approach to biochemical weapons continues to suffer from an
inherently defensive and makeshift posture which treats these weapons as an
abhorrent deterrent to be kept, as much as possible, out of sight and out of mind.

Military Utility of Biological Weapons

To what extent do these developments, especially those arising from the
revolution in biotechnology, require a shift in American military preparations?
Not surprisingly, reasonable minds differ as to the strategic and tactical implica-
tions of genetic engineering. A key issue is the “usability” of biological agents.

One school of thought suggests that there may be less to the new developments
in life science than meets the eye. It judges that biotechnology “will not lead to
the ‘ideal’ BW or routinize biological warfare. That would require a higher level
of protection and predictability than is likely ever to be possible. Effective
weapons will always pose deadly risks for their maker. And no realistic genetic
transformation will yield biological weapons that are suitable for theater opera-
tions.*! In other words, science might well make biological warfare more
dangerous, but never sufficiently controllable. Thus, the very nature of
bioweapons induces self-deterrence, both now and for a long time to come.

Other thinkers view the situation as more threatening. From their perspective,
controllability may not be an insoluble problem. Already, “in the case of
biological agents . . . it is now possible to eliminate undesirable side ef-
fects .. . [to] preserve and package agents more effectively . . . to do more and
do it safely.”** In the future, the phenomenal versatility of genetic engineering
could enable an attacker to retain control over its biological agent, for example,
“by designing it to . . . die off after a previously determined number of cell
divisions . . . [or] by designing the organism to be bound by a narrow set of
environmental factors.”

The mysteries of biotechnology have just begun to be probed, and at their
core lie the basic secrets of life. According to many scientists, the next major
exploratory step will be to map the human genome—a ten-year, $3 billion effort
to determine the exact location, function and molecular structure of the 50,000
genes that human cells have in common. Humans genes are the memory bank
for our species—the cell’s floppy disk governing all life processes at the molecular


Finn 129

21, Supra n. 1 at 100-105; Draft LOS Convention, Arts. 46-54 (regime of archipelagoes).

22, Supra n. 1 at 78; supra n. 2 at 66.

23, Supra n. 1 at 105-107; supra n. 2 at 77.

24, Supra n, 1 at 27-31; supra n. 2 at 77.

25, Supra n, 1 at 119-120; supra n. 2 at 77.

26. Supran, 1 at 14-27.

27. i at 10-31,

28.

29. Ta 1064 107; supra n, 2 at 77.

30, Supran, 1 at 114,

31, Id, at 107-121.

32, For narratives of the relationship between Japanese actions and the development of a regional response
to navigational problems, see generrally FINN, at 78-80; Leifer, at 42-45.

33, For discussions of the period between 1971 and 1975, sce FINN, at 77-78; LEIFER, at 113-121.

34, The imposition of user fees based on passage through a territorial sea is prohibited by Art. 18 of the
Geneva Convention on the Territorial Sea and the Contiguous Zone, which reads:

1. No charge may be levied upon foreign ships by reason only of their passage through the territorial
sea,

2, Charges may be levied upon a foreign ship passing through the territorial sea as payment only for:
specific services rendered to the ship. These charges shall be levied without discrimination.

35. The comparative economies of the Malacca and Lombok routes are extensively analyzed in FINN, et
al,, pp. 124-129.

36. Post-Shows developments are described in id, at 78-79; LEIFER, at 66-76, 132-148.

37. Supra n. 2 at 81-83.

38, LEIFER, at 75. The regional proposal to the Maritime Safety Committee of IMCO had also contined
a clause, “All tankers and large vessels navigating through the Straits shall be adequately covered by insurance
and compensation schemes.” This was bracketed by the Committee, and deleted by the Assembly, on grounds
of lack of jurisdiction, Supra n. 2 at 86.

39, The Assembly's resolution of 14 November 1977 is reprinted in supra n, 2 at 206-208; the operative
terms of the resolution are included in Intergovernmental Maritime Consultative Organization, (SHIP'S
ROUTING at B-V/1-5 (4th ed. 1978).

40. IMCO-approved TSSs are per se voluntary; certain aspects of IMCO-adopted regulations may become
mandatory by virtue of other authority, however, specifically the Intemational Regulations for Preventing
Collisions atSea, 1972 (COLREGS 72), entered into force 15 July 1977, reprinted in U.S. Coast Guard, Navigation
Ruiles (Washington: 1 May 1977), No. CG-169. Rule 10 of COLREGS 72 requires vessels in the vicinity of
a TSS to conform their operations to the traffic Ianes; it does not speak directly to compliance with such
suplemental rules as have been adopted for the Strait of Malacca.

41. Supra n, 1 at 147-148.

42, The Showa Mauraccident, for example, led to claims of $3.6 million by Sigapore, of which $1.5 million
in cleanup costs were paid, leaving about $2 million in private claims outstanding, Indonesia claimed $24.7
million and received $1.2 million; Malaysia claimed $9 million and received $0.5 million. FINN, at 114.

43, Supra n. 2 at 77, 84.

44, Supra n, 40.

45. Draft LOS Convention, Art. 41; Art. 42(1)(2) (general right of coastal States to regulate safety of
navigation and marine traffic in international straits, subject to Art. 41).

46. Compare supra n, 1 at 127-148 (effect of views of the three coastal States on the regime of straits used
for international navigation under consideration at UNCLOS II).

47. The ability of coastal States to seek international recognition of the special needs of such marine areas
is not limited to the regulation of maritime traffic but would also include other antipollution measures, under
Art. 211(6) of the Draft LOS Convention. But in many respects such a provision would only codify practices
which are already available under other international conventions, for example, the Intemaitonal Convention
on the Pollution of the Sea by Oil and Other Substances (MARPOL). Art. III of the 1962 amendments to
MARPOL, done 11 April 1962, entered into force 28 June 1967, 17 U.S.T. 1522, TIAS 6109, 600 U.N.TS.
322, provides for the designation of “no-discharge” zones in addition to those otherwise provided for in the
Convention (waters within 50 n. mi,, of shore generally and the vicinity of the Great Barrier Reef), by
amendment to Annex A of the Convention. 211 (6) of the Draft LOS Convention, which would generalize
such procedures, reads:

‘Where international rules and standards... . are inadequate to meet special circumstances and where
coastal States have grounds for believing that particular, clearly defined area of their respective exclusive
economic zones is an area where, for recognized technical reasons in relation to its oceanographical
and ecological conditions, as well as its utilization or the protection of its resources, and the particular


Rose 503

difficult for the superpowers to intervene in regional wars.”® With the spread of
biological and chemical weapons, even small nations will gain the capacity to
mete out punishing counterstrokes to an intermeddler.

The good news is that none of the Third World countries suspected of
developing biological weapons has, thus far, turned to genetic engineering to
create novel organisms.'° The not-so-good news is that at least a dozen countries
are hard at work on toxins and chemicals. The bad news is that many of them,
particularly in the Middle East, are actively shopping for missiles and other
delivery systems to extend the reach of their new biochemical arsenals. The worse
news is that the 50-year tradition of not using biochemical weapons in battle has
collapsed in the past decade during a series of regional conflicts. Worst of all, the
lesson demonstrated to many by Iraq’s use of poison gas against Iran is that the
military benefit gained by Iraq substantially outweighed any price paid in terms
of international censure or economic sanctions.

‘Widespread use of chemical poisons in the Iran-Iraq war may have lowered
the threshold for future use of biological weapons as well. This erosion of ancient
taboos is being accelerated by the new biotechnology, which not only blurs the
distinction between biological and chemical processes, but also provides a
framework for controlled biological warfare. Thus, the proliferation of
biochemical weapons gathers momentum from three trends—a search for
economical deterrence, the weakening of old taboos, and the advent of a new
and powerful technology ripe for exploitation.'! In short, some countries are
beginning to view biochemical weapons as both useful and, under certain
circumstances, usable.

Nations of the Middle East are a case in point. The current scramble for
chemical armaments in this region adds a dangerous twist to an already volatile
situation. In the estimate of CIA Director William Webster, “the spread of
chemical weapons among the Arab States, principally Iraq, Libya and Syria, could
seriously alter the regional balance of power.”"? This threat will intensify as
countries obtain quantities of missiles capable of delivering biochemical warheads
throughout the region.

Thanks to Soviet largesse, the Syrians already have a supply of SS-21 missiles
capable of sending warheads into neighboring States with considerable ac-
curacy.'? During the Gulf War, Iraq successfully managed to modify a number
of short-range Scud-B missiles, tripling their reach to nearly 600 miles. With
help from Iraq, Egypt is reported to be hard at work building the Badr-2000,
which will have a range comparable to the modified Scud." Finally, Israel served
notice with the September 1988 launching of its first satellite that it too has the
technology to deliver advanced ballistic payloads.!5

For decades Israel and its Arab neighbors have circled each other like
proverbial scorpions in a bottle. As biochemical warheads continue to spread
through the Middle East, this analogy becomes increasingly apt. Virtually every


MeNeill 225

delimited by that boundary. Although the more usual practice in settling
maritime boundaries of opposite States has been to agree upon the median line,
ie., a line equidistant from the nearest points of the opposing States’ shores, this
has not been a consistent international practice. For example, the 1974 Agree-
ment between India and Sri Lanka on the Boundary in Historic Waters employed.
a modified median line to take into account “historical” factors. Equitable
principles are always relevant, whether for territorial waters, EEZ, or continental
shelf. However, the primary rule of international law is simply that delimitation
should be made by agreement between the involved nations.”? U.S. policy
mirrors these considerations: delimitations should be accomplished by agreement
in accordance with equitable principles.”°

As we shall see, in the 1990 U.S.-U.S.S.R. Agreement the parties did not
choose to draw an altogether new maritime boundary. Instead, they elected to
confirm the basic and historic division set out in the 1867 Convention, and to
employ that basic line (with some relatively slight geographic diversions) as their
maritime boundary for all purposes, including delimitations between themselves
of the continental shelf and EEZ.

Lurking in the background of the economic issues which arose from the
overlapping claims in the Bering Sea, strategic questions have always been
present. Certainly, access to the Bering Straits has for some time been an
important strategic requirement for the navies of both the U.S. and U.S.S.R. Of
course, the lack of an agreed maritime boundary in the area did not serve as a
major disincentive to otherwise necessary operational activities (e.g., the U.S.-
Allied PACEX ’89 exercise in nearby North Pacific waters, the largest series of
joint-combined exercises in the area since World War I1),>! if only because,
beyond the territorial sea, delimitation has no effect upon navigational rights and
freedoms. Nevertheless, it is clear that the confirmation of the location of the
boundary has the effect of enhancing strategic stability between neighbors, and
creating the conditions necessary to strengthen that relationship. As Robert Frost
has well noted, “good fences make good neighbors.”

The U.S.S.R. had some additional reasons why it wanted to resolve the
boundary question. The Soviets were reportedly quite concerned about estab-
lishing negative precedents which might affect the outcome of similar negotia~
tions with the Norwegian government involving a disputed portion of the
Barents Sea, which controls routes to some of the most important and largest
naval bases in the Soviet Union.>? The Kola and White Sea coasts are currently
the best basing areas for Soviet SSBNs, and the adjacent Arctic waters constitute
the optimal operational concealment and launching stations for these strategic
forces. Thus a majority of Soviet SSBNs, some sixty percent of the total force,
are based here.”

Intimately related to this capability is the reality that among the most important
Soviet naval objectives in any future world conflict would be the seizure of lines


Farrell 425

18. These cases stemmed from the takeover of the hamlet of Wounded Knee on the Oglalla Sioux
reservation in South Dakota by armed supporters of the American Indian Movement (AIM), February 1973.
They sought a review of the 371 treaties between the U.S, Government and the Sioux Indians. Addition:
there was also concem for alleged corruption within the Bureau of Indian Affairs. The 70-day confronta
ended in May of that year with the Government promising an intensive investigation into the complaints.
Several people were killed and wounded during the incident.

19. Supran. 10 at 17.

20, The content of this and the next several paragraphs is based upon interviews of personnel assigned to
the Department of Defense's Office of Intemational Security Affairs and the Department ofJustice’s Emergency
Programs Center.

21. Supra n. 7 at 83-136. During the civil disturbances at Wounded Knee, South Dakota (March 1973),
the Department of Defense sent an Army colonel to observe the disorders instigated by the members of the
American Indian Movement. As an observer he was not violating the Posse Comitatus Act; however, the officer
actually became an advisor to the civil law enforcement agents, giving advice on rules of engagement,
negotiation and placement of equipment. He also obtained another active-duty Army colonel to assist with
logistical support, The judge in the Red Feather case concluded that the colonels’ advice (as well as the aid
given by the vehicle mechanics and pilots) was passive involvement, He reasoned that only active involvement
such as participation in arrest, search of persons and places, seizure of evidence and the pursuit of escaped
prisoners violates the Act. However, both the DOJ and DOD in policy statements tend to back away from
the Red Feather case and state that the use of equipment loaned to civil authorities would be authorized but
the operators “employed in connection with loaned equipment may not be used in a direct law enforcement
role.” This matter is still not clearly resolved and may yet require further judicial review.

22, USS. Department ofthe Army, DA Civil Disturbance Plan (Garden Plot) (Washington: 3 August 1978),

pel,
23, Id, at C-2.
24. Id, at 0-1. A Terrorist incident “is defined as a distinct criminal act committed or threstened to be
committed by a group or single individual in order to advance a political objective, and greatly endangering
safety or property.”

25, Id, at 0-2,

26, Id. at C-1.

27. Td. at C-10-1.

28, Id.

29, United States Code, 4 Congressional and Administrative News, 4481 94th Congress, Second Session (1976).

30, Id, at 4483.

31. United States Code, 2 Congressional and Administrative News, 1998 94th Congress, Second Session Public
Laws 94-456 to 94-588 (1976).

32, United States Code, Annotated, Title 18, Crimes and Criminal Procedure, Unannotated Text (1970) p. 16.

33, Interview with a member of the Executive Committee on Terrorism (14 November 1980).

34, The New York Times, 23 April 1978, p. 14.

35, McGiffert, “Testimony,” U.S. Congress, Senate, Committee on Governmental Affairs, An Act to
Combat Intemational Terrorism, Hearings at 192 (978).

36, Id. at 191-192.

37. Newsweek, 31 October 1977, p. 51.

38, Supra n, 35 at 195.

39, Td, ac 197.

40, Id.

41, Del Grosso & Short, A Concept for Antiterrorist Operations, Matine Corps Gazette 54 June 1979).

42, DOBSON & RAYNE, THE TERRORISTS 144-145 (1979).

43, Newsweek, 31 October 1977, p. 51.

44. Holloway, Rescue Mission Report, 15-16 (Unpublished paper for Joint Chiefs of Staff, Washington,
D.C.: August 1980).

45, Id. at 16.

46, Id. at 16-17.

47, Td.at 13.

48, Id, at 20.

49, Id. at 23.

50, Id, at 25,

51. 1d. at 29.

52. Id. at 34, 41.

53, Id,, Forwarding statement, page unnumbered.

54. The New York Times, 3 February 1981, p. B-13.



Hall 355

and were “preemptive” in nature.>> “Self-defense is not only our right, it is our
duty,” he said.56

The Libya Mission and the U.S. Constitution

The Constitution’s Framers did not want the President to be the King.”
Indeed, the Articles of Confederation, ratified just six years before the Constitu-
tional Convention of 1787, did not provide for a national executive at all. It is
clear, then, that the Framers did not mean to render the President omnipotent.
it is equally clear, however, that they did not mean for the President to be an
impotent, titular executive. The Framers did name the President commander in
chief of all military forces, grant the President executive power, and designate
him the primary agent for the conduct of foreign affairs. On the other hand, the
Framers granted Congress the powers to declare war and to ratify or withhold
ratification of the President’s treaties, thus inviting a “struggle for power”TM® in
the area of foreign relations.®® The fact is that the record of the Framers’ debate
on war powers is so wide-ranging and inconclusive that proponents of each view
can find significant support in the record. Supreme Court Justice Jackson noted
in 1952: “Just what our forefathers did envision, or would have envisioned had
they foreseen modern conditions, must be derived from materials almost as
enigmatic as the dreams Joseph was called upon to interpret for Pharaoh. A
century and a half of partisan debate and scholarly speculation yields no net result
but only supplies more or less apt quotations from respected sources on each side
of any question. They largely cancel each other.”

The spare record of the constitutional debate does not contain a definition of
the powers of the commander in chief. This silence is consistent with the
collective ambivalence expressed by the Framers about the war powers in general:
the President, on the one hand, should not have unfettered warmaking power
and, on the other, should be able to respond to crises affecting national security.
Alexander Hamilton, who favored a strong executive, attempted to reconcile
the tension in the Framers’ ambivalent view by stating that the President was “to
have the direction of war when authorized or begun.”®! This remark can be
taken to mean that the President can direct a war “only after it has been
commenced” by congressional declaration. Indeed, James Madison emphasized
the distinction between the President’s power “to conduct a war” and Congress’
power to decide “whether a war ought to be commenced, continued, or
concluded."® But Hamilton’s statement contemplates the possibility of congres-
sionally unauthorized war by establishing the disjunction, “authorized” or other-
wise “begun.” Hamilton expressed his position more clearly when he wrote:
“[I]t is the peculiar and exclusive province of Congress, when the nation is at peace
to change that state into a state of war; whether from calculations of policy or
from provocations, or injuries received: in other words, it belongs to Congress


358 Readings on International Law

that in the exercise of this important function confided by the Constitution to
the legislature exclusively their judgment may form itself on a knowledge and
consideration of every circumstance of ‘weight.”””

This message suggests no doubt in President Jefferson’s mind about his
authority to commit naval forces to combat for defensive purposes in the face of
de facto war without a congressional declaration of war. It also suggests that
President Jefferson recognized a prohibition against presidential war making
beyond the scope of tactical self-defense in an engagement commenced by the
enemy. This latter appearance, however, is misleading. What President Jefferson
did not report to Congress is that, without congressional authorization, he had
ordered the squadron to which the Enterprise was attached to engage Barbary
naval forces. On President Jefferson’s behalf, General Samuel Smith, Acting
Secretary of the Navy, wrote to Commodore Richard Dale on 30 May 1801:
“Recent accounts received from the consul of the United States, employed near
the regencies of Algiers, Tunis and Tripoli, give cause to fear, that they will attack
our commerce, if unprotected, within the Mediterranean; but particularly, such
apprehension is justified by absolute threats on the part of the Dey of Tripoli.

“Under such circumstances, it is thought probable, that a small squadron of
well appointed frigates appearing before their ports, will have a tendency to
prevent their breaking the peace which has been made, and which has subsisted
for some years, between them and the United States.

“Tt is also thought, that such a squadron, commanded by some of our most
gallant officers, known to be stationed in the Mediterranean, will give confidence
to our merchants, and tend greatly to increase the commerce of the country
within those seas.

“I am therefore instructed by the President to direct, that you proceed with
all possible expedition, with the squadron under your command, to the Mediter-
ranean,

“, .. [S]hould you find on your arrival at Gibraltar, that all the Barbary powers
have declared war against the United States, you will then distribute your force
in such a manner, as your judgment shall direct, so as best to protect our
commerce and chastise their insolence—by sinking, burning, or destroying their
ships and vessels wherever you shall find them. The better to enable you to form
a just determination, you are herewith furnished with a correct state of the
strength and situation of each of the Barbary powers. The principle strength you
will see, is that of Algiers. The force of Tunis and Tripoli is contemptible, and
might be crushed with any one of the frigates under your command.

“Should Algiers alone have declared war against the United States, you will
cruise off that port so as effectually to prevent anything from going in or coming
out, and you will sink, burn, or otherwise destroy their ships and vessels wherever
you find them.


614 = Index

arctic bastions, 226

arms production and export, 472

arctic bastions, 110-111

Barents Sea dispute with Norway, 225

Barents Sea lines of communication, 226

biological/biochemical weapons, 504-506, 508, 512

Black Sea, 102, 216

borders incidents, 252

Brezhnev Doctrine, 325

concems about Sino-Japanese relations, 558

conformity of border regulations with UNCLOS III, 258

Convention of Cession (1867), use of loxodromic lines, 221

Cuban Missile Crisis, 42, 336

economic pragmatism, 233

effects of a restrictive regime for the Baltic Straits, 102-103

emergence as a naval power, 346

Far East TVD (Theater of Military Operations), 231

fishing rights and competition with Japan, 559

Frigate Ladnyi, 249

Geneva Convention on the Law of the Sea (1958), 1162

geopolitical relationship with Japan and U.S., 231

Governing International Fishery Agreement, 221

historic resentment of Japan, 232-233

ideological view of Japan, 235

importance of Bering Straits chokepoints, 226

Incidents at Sea Agreement, 248

Joint Military Commission, 256

Kamchatka Peninsula, 237

Korean Airlines massacre, 326

Krivak-class frigate Beezavetnyi, 251

Kurile Islands. See Kurile Islands.

Law of the Union of Soviet Socialist Republics on the State Frontier of the U.S.S.R., 192

military presence around Japan, 559

military pressure on Japan, 555, 559-560

military use of the seabed, 48

naval diplomacy, 108

negotiating history of UNCLOS III, 193-194

‘Okean II exercise, 559

opposition to U.S. warships in Black Sea, 247-248

Pacific regional objectives, 237

Peter the Great Bay, 204

prestige, 21-22

proposal for 300-mile EEZ, limit, 66

reaction to North Korean military boundary zone, 207, 215

reductions in Pacific Fleet, 237

religious dissidents, 40

reservations regarding 1949 Geneva Convention for Prisoners of War, 476

restrictions on passage within territorial water, 190-195

Rules for Navigation and Sojourn of Foreign Warships in the Territorial Waters (Territorial Sea)
and Internal Waters and Ports of the U.S.S.R., 192-193

Rules for Navigation and Sojourn of Foreign Warships in the Territorial Waters and Internal
‘Waters and Ports of the US.S.R., 248

Russian World War II casualties, 346

Russo-Japanese War of 1914, 207

Sakhalin Island, 232, 233, 237

Sea of Okhotsk, 232, 237, 239, 560

Soviet Ocean Surveillance System (SOSS), 140

Soviet-Japanese summit (1991), 239, 240



xiv

In 1898, Stockton had risen to the rank of Captain and was named Naval
War College President. The following year he was charged by the Secretary of
the Navy with drafting a Code of the Law and Usages of War at Sea—a
document that served as an early effort to codify the law of the sea. Captain
Stockton represented the United States at the Hague Peace Conference of 1907,
which played an important role in the development of conventional law
governing armed conflict.

In 1901 the study of international law at the Naval War College was under
the direction of the legendary John Bassett Moore (no relation to the under-
signed) of Columbia University, who went on to become a judge of the
Permanent Court of International Justice and is viewed by many as perhaps the
finest international lawyer ever produced by the United States. One of Professor
Moore’s many contributions was to initiate the series of “Blue Books,” of which
the present volume is the sixty-eighth. Moore was succeeded by Professor
George Grafton Wilson, one of the co-founders of the American Society of
International Law, who divided his efforts between teaching at the War College
and at Brown (and later at Harvard) University. Under Professor Wilson’s
guidance, another 7,000-pages of “Blue Books” were produced by 1937.

Another enhancement to the Naval War College’s international law program
occurred following World War I, when Admiral William B. Sims—an interna-
tionally-acclaimed war hero who was expected to receive his choice ofany senior
position in the Navy—requested instead to return to the presidency of the War
College. Because of his great prestige, Admiral Sims was able to secure increased
funding to attract “leading authorities on international law” to the War College.
Many of the nation’s foremost scholars in the field were drawn to Newport
during the years which followed, including Professor Manley O. Hudson of
Harvard (who also served as a World Court judge).

Up until that point, however, distinguished scholars like John Bassett Moore
and Manley Hudson would divide their time between their War College
responsibilities and teaching at leading universities in the region such as Harvard,
Columbia, and Brown. In July, 1951, Professor Hudson was succeeded by
Professor Hans Kelsen, of the University of California at Berkeley, who became
the first full-time occupant of what in 1967 was to become known as the Charles
H. Stockton Chair of International Law. It remains the oldest and is widely
viewed as the most prestigious chair at the Naval War College.

While Admiral Stark is certainly correct in noting the importance placed on
international law in the curriculum of the College, one can only add that during
its proud history the Naval War College has attracted some of the Nation’s
foremost scholars of international law—and those of us in the profession today
are deeply indebted to the Naval War College for the contributions its scholars
have made over the years. To give just one contemporary example, The
Commander’s Handbook on the Law of Naval Operations (NWP 9), produced


Finn 127

also inform the coastal States of the full extent of maritime operations and possibly
inflame local feelings, especially if further accidents or military tensions occur.

Regardless of these substantive shortcomings, the process by which the IMCO
rules were adopted illustrates the successful working of international law in such
a situation. After announcing that they would proceed on a regional basis, and
even threatening to seek a change in the international juridical status of the Straits,
the coastal States proceeded to develop a broadly acceptable regulatory regime
on a regional basis and to refer it to IMCO for international approval prior to its
implementation. IMCO’s adoption of the regime accords it significant interna-
tional recognition and, for navigational practices affecting the TSSs, international
enforceability through general international agreements on navigation.“ Such a
procedure, by which States may forward proposed systems of traffic regulation
to IMCO for approval, will probably be adopted formally if UNCLOS III
concludes successfully and a new treaty on the law of the sea is adopted. Under
the Draft Convention on the Law of the Sea (“Draft LOS Convention”) under
consideration at UNCLOS III:*5

States bordering straits may designate sea lanes and prescribe traffic separation
schemes for navigation in straits where necessary to promote the safe passage of
ships.

Before designating . . . sea lanes or prescribing . . . traffic separation schemes,
States bordering straits will refer proposals to the competent international organiza-
tion with a view to their adoption. The organization may adopt only such sea lanes
and traffic separation schemes as may be agreed with the States bordering the straits,
after which the States may designate . . . them.

It would appear that the coordinated actions of the Government of Indonesia,
Malaysia and Singapore taken after their joint declaration of 1971, have not only
followed international law as it existed prior to UNCLOS III, but have by their
example exercised considerable influence on the progressive development of
international law in this field, specifically the above article of the Draft LOS
Convention under consideration by UNCLOS III. The procedure codified by
UNCLOS III, for traffic regulation as well as other matters affecting international
straits and other critical or sensitive water bodies, may help to regularize the
process by which these and other coastal states may seek international recognition
of the special needs of such waters.”” But referral to international organizations
of such questions, or their reference to separate agreements among the parties
concerned, may not always provide a substantively satisfactory answer and also
may lead to procedural frustration when international support for such measures
is not forthcoming, for commercial or strategic reasons.*® Nevertheless, the
establishment of a procedural framework through which such disagreements can
be resolved could help to make these conflicts more manageable.


Webb 345

support depends in turn upon understanding a government’s purposes and
trusting in its intentions. A democratic government must articulate clearly the
ends and means of defense if that trust is to endure.

There are many examples throughout history of democratic governments
forgetting this vital, moral aspect of strategy and losing the support of loyal citizens
who despaired over clouded strategic thinking. One of the most poignant to me
was that of Siegfried Sassoon, a talented British poet. After almost 3 years of
fighting during World War I, having been wounded several times, and awarded
the Military Cross, Sassoon quit the Army in late 1917, causing national headlines.
This was not an act of cowardice; Sassoon had been wounded so badly that he
would have been kept at home if he had stayed in the service. Rather, it was an
act of immense frustration with the leadership of a country he loved and had
defended.

Sassoon wrote, “I am making this statement as an act of wilful defiance because
I believe that the war is being deliberately prolonged by those who have the
power to end it, .. . I believe that the purposes of which I and my fellow-soldiers
entered upon this war should have been so clearly stated as to have made it
impossible to change them, and that, had this been done, the objects which
actuated us would now be attainable by negotiation. . . . I am not protesting
against the conduct of the war, but against the political errors and insincerities
for which the fighting men are being sacrificed.”

Sassoon’s objections were classic. The war had begun for Britain, completely
without strategic objectives, in response to the violation of Belgium’s neutrality.
The Germans were implementing an inflexible strategy called the “Schlieffen
Plan” and believed the war would be over in exactly 39 days. Instead, it would
eventually cost almost a million dead among British Empire soldiers, the deaths
of 1 1/2 million French soldiers, and almost 2 million German soldiers. From
beginning to end, except for the first 4 days on the part of the Germans, and for
Winston Churchill’s ill-fated Gallipoli Campaign, the war lacked strategic focus.

Citizens in free societies are unique in this regard: they have the right to know
what they might be dying for. This was true in World War I, it was true in
Vietnam, and it is true today. If we cannot tell our people what our objectives
are around the world, and clearly indicate to them why these objectives are
important to our Nation, we cannot expect them to invest the lives of their sons
and fathers in the national interest.

I would suggest another key element: in the evocation of U.S. military
strategy, the sea services are, and always have been, the linchpin. We are not a
continental ground power, except on our own continent, and never have been.
In fact, we have never truly fought a continental war, except the Civil War. In
contrast to the horrendous figures just mentioned, we lost 55,000 men in combat
during World War I and another 50,000 died from illness. In World War II, we
basically fought a rearguard action against the Germans while defeating the


324 Readings on International Law

limited to the initial concerns for intervention. Nevertheless, it is easy to
understand why those defending the Administrations’s decision to invade
Grenada felt compelled to give other justifications. Americans these days tend to
ask not “Was that the right thing to do?” but rather, “Did we have a right to do
that?”!° Traditionally, US citizens, arguing about wars, justified their Nation’s
conduct and judged the conduct of others. During the post-Vietnam era,
Americans have tended to judge the conduct of their own government and justify
the conduct of others.!! The results of these trends are disturbing because, “they
shape, and . . . are sometimes intentionally used to shape, the political climate:
they promote national flinching.”'* Even more disturbing is the elevation of
legality above morality by those who judge their nation. Was the use of force in
Grenada moral? This is an important question. Put another way, did the United
States, by invading Grenada, act in accordance with established international
standards of good behavior?

here are those who seek to follow the letter of the law which can bring

death and slavery, and there are those who follow the spirit of the law
which leads to freedom—freedom for life, liberty and the pursuit of happiness.
The Americans who judged our invasion of Grenada to be illegal opted to follow
the letter of the law. Their answers to the questions posed above regarding the
morality of America’s use of force in Grenada are predicated on their answer to
the age-old question: “Does the end justify the means?” Antagonists of the
Administration fail to take into account the motive behind the use of the means.
Therefore, let us look at several different approaches to the question of ends and
means and address the critical question of motive as it pertains to the invasion of
Grenada.

Gordon A. Craig and Alexander L. George, in their book, Force and Statecraft,
discuss the problem of ethical and moral constraints on the use of force in foreign
policy, and identify three schools of thought on whether and how moral
principles apply in foreign policy. Each school of thought takes a different
position on the question, “does the end justify the means?” The amoralists apply
questions of morality to the ends only, not to the means to achieve those ends.
The perfectionists argue that no matter how moral the ends, they never justify
means that violate moral standards. A good example of a perfectionist is a pacifist
who excludes the use of military force in all circumstances. Another type of
perfectionist is the moralizer who dispenses with the question of the costs—to
others as well as to himself—should his moralistic views on foreign policy actually
be adopted. Some perféctionists espouse the idea that nations should behave
according to the moral standards of individuals. The nonperfectionists reformulate
the question so it reads: “Under what conditions do which ends justify what
means?” This might be considered the realists’ approach to the question; it is the


DeCamp 323

Minister of Dominica—to intervene. After all, Scoon, not Austin, became the
lawful authority in Grenada on Bishop’s death. “Under generally accepted rules
of international law, outside assistance cannot be requested by a government
faced by a purely domestic civil war in which the outcome is in doubt, for such
a government cannot truly speak for its country. But if a civil war is aided and
promoted from the outside, by agencies of another state—if, in other words,
subversive intervention has occurred—then the target government has a legal
right to ask for assistance in its struggle to maintain itself. . . .

“Under the conditions described—that is, a civil war supported, on the rebel
side, from the outside—third parties may assist the incumbent government
regardless of a possible diminution of the control exercised by it over its national
territory.”

In the case of Grenada, Scoon, the Governor-General, had a legal right to ask
for intervention and the United States had a legal right to respond. The
Soviet/Cuban actions in Grenada, it can be argued, amounted to “subversive
intervention.” Edmund Burke in his Thoughts on the Cause of Present Discontents
said, “When bad men combine, the good must associate; else they will fall, one
by one, an unpitied sacrifice in a contemptible struggle.” President Reagan did
not disclose Scoon’s invitation initially for fear of Scoon’s personal safety—Scoon
being in Grenada at the time of his request for U.S. intervention.

But, claim Reagan critics, the Soviets were invited into Afghanistan in 1979.
What, they ask, is the difference between the Soviet invasion of Afghanistan and
the U.S. invasion of Grenada? For a clue one can examine Soviet actions after
their invasion of Afghanistan. First, they promptly engineered a coup in which
their “host,” President Hafizullah Amin, and members of his family were brutally
executed. Next, they then installed a new government led by Babrak Karmal,
and they continue to wage war against the Afghani people five years later.

In the writer’s view, there is a reasonable and strong case for humanitarian
intervention. “If certain practices or actions, revolting when judged by generally
accepted standards of morality and decency, continue to take place in a given
state despite protests and objections by its neighbors, then humanitarian con-
siderations outweigh the prohibition on intervention and justify a decision to
interfere.

“Ifa moral consensus can be shown to exist, if the conscience of mankind is
outraged by a repetition of repulsive practices within a state, then conceivably a
moral justification may exist for intervention on the part of other states. The
question remaining would of course, be the old one: Does the end justify the
means? In this instance, justification might be admitted in favor of interference,
provided an absence of selfish aims could be demonstrated.”®

These justifications for the use of military force in Grenada have legal merit;
however, if the Americans on the island were in danger, then no other
justification was necessary. For the sake of discussion here, considerations will be


Bunn 335

Intervention Authorized by a Regional Collective Security Agency “Standing in
the Shoes”? of the Security Council. The third justification was that the Organiza-
tion of Eastern Caribbean States had authorized a multilateral peace force to take
over Grenada long enough to bring back peace and order. Under the U.N.
Charter, the Security Council has authority to use peace forces which nations
put at its disposal to deal with threats to the peace and acts of aggression.'?
Without a large permanent peace force and with repeated exercise of the veto,
the Security Council has usually been unable to perform such a function.

Under the U.N. Charter, regional collective security organizations may deal
with threats to the peace if authorized to do so by the Security Council."3 In
several cases, regional organizations have taken collective action without prior
Security Council authorization but then reported their action to the Security
Council.!* This is what happened in Grenada. But the Security Council would
have condemned the action as an invasion in violation of international law if the
United States had not exercised its veto. The General Assembly did vote
overwhelmingly for such a condemnation, with almost all of our allies deserting
us in the final vote.!>

One lesson of the Falklands and Grenada cases is certainly that a clear-cut first
use of force to cross boundaries is difficult to justify to the world, but self-defense
against such an invasion is not. If the general rule against first use of force has no
other meaning, it means this much. That is one reason why general peacetime
rules of engagement typically provide no authority for an on-scene commander
to use force first except for an imminent threat of armed attack on his command,
such as a kamikaze aircraft diving on his ship. First uses of force based on other
grounds must ordinarily be authorized by the national command authorities so
that the responsibility will rest ultimately where it belongs, on the President.

The Anticipatory Self-Defense Exception to the
General Rule Against Shooting First

Many States contend that self-defense is only permitted against and actual
“armed attack” under the U.N. Charter language quoted above. But U.S.
practice has long recognized an inherent right “to counter either the use of force
oran immediate threat of the use of force,” to quote a Navy regulation.'® Typical
naval rules of engagement for an on-scene commander are likely to provide
something like this: “The right to exercise self-defense is based on necessity’ and
*proportionality.’ The requirement of ‘necessity,’ or present danger, arises when
an armed attack occurs. The requirement may also be satisfied when there is a
threat of imminent attack, in order to prevent that attack or reduce its impact. In
either case, proportionally’ requires that the use of force be limited in intensity,
duration and magnitude to what is reasonably necessary to counter the attack or
threat of attack,’"7


170 Readings on Intemational Law

concerned with the adverse national security implications inherent in the
perceived global trend toward inhibiting freedom of ocean navigation and
overflight.

he United States does indeed have a national interest in access to seabed

minerals; it also has an important interest in preserving freedoms of the
high seas in as broad an area as possible. In fact, the United States has important
national interests in virtually every aspect of ocean use. It is not only a major
maritime power, but it is also one of the most important coastal nations and thus
shares with all coastal nations the interests and concerns regarding use of the seas
off its coasts. A scorecard that lists all U.S. interests in the seas, one that does not
focus on the deep seabed regime to the virtual exclusion of other ocean interests,
shows that the United States would not fare badly at all as a party to the 1982
treaty:

¢ Living and nonliving resources off U.S. coasts are vast and valuable. The
new treaty’s EEZ would confirm U.S. sovereign rights to those resources in the
largest EEZ space, more than 2.2 million square nautical miles, assigned to any
single nation. (The recent Presidential Proclamation of a U.S. EEZ attempts to
lay claim to these resources unilaterally,°? but other nations assert that the United
States cannot claim the benefits of the new treaty without becoming a treaty
party and recognizing the negotiated concessions.)

* Significant environmental protections are granted by the new treaty to
coastal nations, and the United States, as a major port state and importer of
shipborne oil, could benefit a great deal from these.

* Freedom of navigation and overflight is, for all practical purposes, guaran-
teed beyond twelve miles everywhere, and rights of passage through international
straits, including submerged passage and overflight, are allowed even within
twelve-mile territorial seas. Similar passage rights are also allowed through
archipelagic sea lanes.

* Freedom of scientific research, clearly in the U.S. national interest, is
seriously impeded within EEZs under the 1982 treaty’s provisions. Our oceanog-
raphers, however, generally prefer the treaty to the alternative, which they rightly
feel will soon be (or is now) a customary law of absolute exclusion?”

* Dispute settlement mechanisms for nearly all types of future ocean con-
troversies are part of the 1982 treaty, largely due to U.S. efforts. Even the Soviet
Union, for one of the first times in its negotiating history, went along with the
consensus of the conference that most ocean law disputes should be submitted
to compulsory dispute settlement before a special International Tribunal for the
Law of the Sea, or the International Court of Justice, or an arbitration board.

* International legal stability would, of course, be enhanced by a successful,
widely ratified Law of the Sea Treaty, and the United States, with the greatest


Chapter 20

Fighting by the Rules*

Commander Christopher Craig, D.S.C., Royal Navy

MS Alacrity, a type 21 general-purpose frigate, sailed from the United

Kingdom on 5 April 1982 and accompanied the two carriers, HMS Hermes
and HMS Invincible, throughout their passage south. We were subject to the first
Argentine Mirage attack on 1 May, partook in the Total Exclusion Zone (TEZ)
operations, were involved in a variety of naval gunfire support missions and
clandestine operations, ran a number of night transport convoys into San Carlos
water after the amphibious landing on 21 May, and had the dubious privilege of
being present in the carrier battle group during each of the Exocet attacks. We
departed the TEZ just before the fall of Port Stanley. Throughout this period I
‘was, as Commanding Officer, privy to the evolution of the Rules of Engagement
and quite naturally held a deep and vested interest in the rules—rules that were
necessary to ensure our survivability, to police the TEZ effectively, and yet
afforded us the necessary freedom to be militarily effective in pursuit of our aims.

The Royal Navy’s Use of Exclusion Zones. From the outset, we in the task force
saw the United Kingdom’s position as being rooted in a “self-defensive” posture
under the UN Charter’s Article 51. Everything we undertook—deploying the
task force, establishing the Maritime Exclusion Zone (MEZ) and Total Exclusion
Zone (TEZ), and effecting a landing—were predicated upon this basic assump-
tion. I believe this has been our national standpoint throughout.

The declaration of the MEZ on 7 April became effective on the 12th. At this
stage we had a nuclear-powered attack submarine on station. This MEZ became
the Total Exclusion Zone on 30 April. For it to be effective, it was necessary
that our carrier air assets, our “police” force, should be within 200 nm of Port
Stanley. We had, of course, given due notice to the world as early as 23 April
that any approach by Argentine units which could amount to a threat to any of
our forces would be dealt with appropriately; the scope of this warning was not
restricted to the Exclusion Zone.

This leads us to an emotive issue—the sinking of the Argentine cruiser General
Belgrano. The clear perception of the Commander Task Group, Rear Adm. John
‘Woodward, was that the Belgrano formed the southern arm of a three-pronged

* Reprinted from the Naval War College Review May-June 1984.


Chapter 25

Law in Support of Policy in Panama*

Colonel James P. Terry, U.S. Marine Corps

O peration “Just Cause,” the December 1989 military intervention in
Panama by the United States to restore order, protect U.S. lives, and
ensure the integrity of the Panama Canal Treaty,' was the fifth such incursion
into that nation by the United States in this century.” When this use of force is
judged from the dual perspectives of law and USS. policy, the U.S. initiative,
unlike our intervention in Nicaragua earlier in the decade, can be justified under
conventional and customary international law as a legitimate use of American
military power in defense of U.S. and Panamanian national interests.

Under the best of circumstances, the use of the military instrument will lead to
international criticism. Operation “Just Cause” was no exception. The Soviet Union
used traditional Cold War rhetoric to denounce the action, while all the neighboring
Latin American nations condemned the incursion—individually, within the Or-
ganization of American States (OAS), and within the United Nations.? (Strangely,
their criticism was far more vocal than when Noriega nullified the victory of the
Endara government over his puppet regime the preceding May.) Britain and other
‘Western nations were supportive of the operation,

This use of military power in Panama emphasized that criticism will be
short-lived when both the people of the nation in which the intervention occurs,
as well as the opposition party of the intervenor-nation, support the action as
within their national interests. For the people of Panama, the intervention
represented fulfillment of the ongoing civil movement for democratization, their
vital economic interest in political change (they recognized that U.S. economic
sanctions would only be lifted if Noriega were deposed or surrendered to face
U.S. drug and conspiracy charges), and an appeasement of the new critical
attitude in the international community over conditions in Panama.

The Threat to U.S. National Interests

For more than two years prior to the 20 December 1989 intervention by U.S.
Southern Command (SOUTHCOM) forces, the U.S. government had at-
tempted to resolve the crisis in Panama through negotiation. That effort was

* Reprinted from the Naval War College Review Autumn 1990.


Joyner 439

energy from the water, currents and winds;
(b) jurisdiction as provided for in the relevant provisions of this Convention with
regard to:
(i) the establishment and use of artificial islands, installations, and structures;
(ii) marine scientific research;
(iii) the protection and preservation of the marine environment;
(0) other rights and duties provided for in this Convention.

Ofspecial relevance for this study, coastal State jurisdiction explicitly is provided
for those activities on “artificial islands, installations, and structures.” In relevant
part, Article 60 of the 1982 LOS Convention stipulates that:

1. In the exclusive economic zone, the coastal State shall have the exclusive right
to construct and to authorize and regulate the construction, operation and use oft

(2) artificial islands;

(b) installations and structures for the purposes provided for in article 56 and
other economic purposes;

(0) installations and structures which may interfere with the exercise of the rights
of the coastal States 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.”

Of related importance, coastal States may establish around these facilities
“reasonable safety zones” of up to 500 meters, within which “it may take
appropriate measures to ensure the safet fety both of navigation and of the artificial
islands, installations and structures.””” Presumably, unauthorized activities
detected in these safety zones could serve as a reasonable cause for the coastal
State’s legal intervention into a suspected related incident involving immobile
installations in an EEZ.

¢. The Outer Continental Shelf. Still another aspect of the law of the sea
relevant to offshore maritime installations—and thus to terrorist actions taken
against them—concemns access to continental shelf areas. Article 77 of the 1982
LOS Convention provides that “The coastal State exercises over the continental
shelf sovereign rights for the purpose of exploring it and exploiting its natural
resources.”~” That permission from a coastal State is required before undertaking
extractive measures on the continental shelf is unmistakably assured by Article
80, which, in full, mandates that: “Article 60 applies mutatis mutandis to artificial
islands, installations and structures on the continental shelf.””* Put succinctly, this
provision imbues a State’s government with the exclusive rights to construct,
authorize and regulate artificially implanted facilities located within a 200-mile
economic zone seaward from its coast.

To summarize, legal jurisdiction over all activities occurring on or around
man-made installations as far seaward as 200 nautical miles ultimately will fall
under the supervisory, regulatory, and enforcement aegis of the coastal State’s


Robertson 15

the right may be individual or collective; and armed attack must have occurred;
and self-defense measures can continue only as long as the Security Council has
not taken the action necessary to maintain peace and security.

Let us briefly address each of these concepts. First, the “inherent right” is based
on the fundamental principle that a State has a right of self-preservation. This
right pre-existed the U.N. Charter, although the Charter may have put limits
on how it may be exercised, it did not take away the right itself. Second, this
provision recognizes that a State is not required to rely on its own resources alone
in repelling an attack. It may call upon other States to come to its assistance to
repel the attack and maintain or regain its security. Our own whole web of mutual
security arrangements with other States is based on this principle.

Third, the attack must “occur.” This is perhaps the most controversial part of
the article. Does it mean that the victim State must absorb the first blow before
it can respond? If so, the right to respond would be an empty one; in this age of
missiles and weapons of mass destruction, the first blow may be fatal. Neverthe-
less, some respected authorities have argued for this position. Others have pointed
out the unreality of such a position and have argued for the right of anticipatory
self-defense, pre-emptive attack, or preventive war. This too has its dangers,
perhaps inviting all manner of pre-emptive assaults on the mere suspicion of an
intent to attack, There is a middle ground, espoused by, among others, an
eminent Israeli publicist, Yoram Dinstein, who suggests that an attack “occurs”
when one party “embarks upon an irreversible course of action, thereby crossing
the Rubicon.” He calls this type of self-defense “interceptive” rather than
anticipatory or pre-emptive. Under his theory, the United States would have
been properly exercising the right of self-defense had it detected and attacked
the Japanese fleet en route to Pearl Harbor in December 1941.

Fourth, when does the right to self-defense end? Does Article 51 mean that
if the Security Council passes any resolution at all, the State or States exercising
the right of self-defense must desist? As preposterous as this seems, some noted
publicists have argued so. A more sensible interpretation is that the measures
must be both “necessary” and “sufficient” to restore or maintain international
security. Who then is to decide whether the measures are sufficient? Is it the
Security Council itself, or the State that believes itselfa victim of aggression? The
Charter is silent. Most publicists argue for the Security Council, and I would
agree, but only if the Security Council makes an explicit finding that the measures
it has taken are sufficient to restore international peace and security and directs
the State or States exercising the right of self-defense to desist from further armed
action, Under the rule of unanimity of the five permanent members of the
Security Council, the rights of a victim State would seem to be adequately
protected by this interpretation. Under it, measures adopted by the Security
Council and actions of States in the exercise of their rights of individual of
collective self-defense can proceed concurrently, at least until the Security


592 Index

Argentina and Britain, 183
Britain-Iceland (Cod Wars), 99, 183
‘Japanese and Soviet fishermen, 559
Japanese complaints about U.S. economic zone, 563
‘Sino-Argentine, 183, 184
Sino-Philippine, 183, 184
Soviet-U.S. incident (1986), 221
United States and Latin America, 183
Fisheries management
“doughnut hole,” 222
Bering Sea, 224. See also Bering Sea.
Fishery Conservation and Management Act of 1976, 57-58
Governing International Fishery Agreement, 221
Soviet-U.S. overlapping claims, 220
Fisheries resources, exclusive rights, 268
Fishing claims
Tran, 89
Saudi Arabia, 89
Fishing vessels
restricted movements, 89
Fitzmaurice, Sir Gerald, 369
Foley, House Speaker Thomas S., 373
Force
minimal, 37, 316
moral, 21
peacetime use of. See Self-defense.
force majeure, 255
Ford administration, policy on terrorism, 380-381
Ford, Guillermo, 368
Ford, President Gerald, 37-38
Foreign Sovereign Immunities Act of 1976, 22
France
French text of LOS Convention, 287
Gigene anti-terrorist force, 420
LOS Conventions statements, 288
response to INF Treaty, 571
transfer of marine technology under UNCLOS III, 151
withdrawal from NATO military cooperation agreements, 21
Franco-Belgian Treaty of 1834, nonextradition provisions, 379
Franco-Prussian War, 468
Freedom fighters. See Liberation movements, national.
Freedom of navigation, 22, 64, 68, 189, 208-209
challenges to ROK/USS., 211
concept of operations for North Korean military boundary zone, 211-215
innocent passage, 245
Freedom of Navigation program, 7
assertive actions, 215, 246
background, 199-202
Black Sea, 216, 243, 245, 247-259
creeping jurisdiction, 244-246
diplomatic protests, 246
domestic and international public perceptions, 215
establishment of, 244-246
innocent passage, 243
operational challenges, 246-247
Frost, Robert, 225
Frunze and Tukachevskii theories of mass, tempo, and deep penetration, 570
Fulton, Thomas, 266, 267, 268



152 Readings on International Law

* Better training for users of the technology (in the developing world)

* An equal chance to exploit the seabed (“the common heritage principle”)

The developing countries are quick to point out that they do not claim any
tight to technology that is used only in the industrial countries and not on the
high seas or deep seabed. They admit that such equipment and knowledge is
clearly “private property.” Their concern is directed toward technology that is
used to exploit the ocean, “the common heritage of all mankind.” They argue
that since the marine technology is used in what is, in effect, a global common,
the returns should be shared with the entire global community. They see
mandatory technology transfer as one keystone of this program. Finally, the
developing countries believe that they were the victims of exploitation by the
Western powers throughout the colonial period. Implicit in many of their
declarations and proposals is the idea that they are “due” their share in global
mineral wealth and advanced technology in return for decades of exploitation.

Corporations

Most of the marine technology that is held by Western countries is in the
hands ofa collection of large corporations. As a rule, the Western companies are
opposed to the mandatory transfer of marine technology. The U.S. Chamber of
Commerce, which represents 187,000 firms and individuals in business, is
particularly opposed to the concept.'® In a position paper of 5 August 1981, the
Chamber’s spokesperson commented, “Privately owned technology in this
country is not the ‘common heritage of mankind.”””” The position paper points
out that the technology in the United States has been developed because of the
“American economic system,” which “encourages and protects the development
of technology.” The paper goes on to comment that lack of full protection, i.e.,
technology transfer as outlined in the Law of the Sea Treaty, will only act as a
major obstacle to the development and utilization of important minerals and
hydrocarbon recovery technology. This, again according to the Chamber, will
ultimately be detrimental to the companies, the developing countries, and the
industrial nations alike.'®

The basic attitude of most corporations is that technology transfer is a fine
idea, but it must be profitable for both the transferor and the transferee. If the
incentives inherent in the United States and other Western patent systems are
altered by the Authority, less and less new technology will be developed. George
W. Whitney, President of the American Patent Law Association, commented
before the Committee on Foreign Relations of the U.S. Senate:'?

“High technology products, machines, and processes are assets acquired at
high costs and considerable risks. Their development requires long term
expenditures of money and manpower. To efficiently mine the sea, not only
will existing technology and experience have to be greatly advanced, but whole


Chapter 35

Rules of Engagement*

Captain J. Ashley Roach, JAGC, U.S. Navy

here is a very real need for greater knowledge of Rules of Engagement on

the part of strategy and policy personnel, tacticians and operators, and even
by our civilian leaders. At present these rules are rarely, if ever, exercised and too
few planners and commanders seek contingent approval for additional or relaxed
tules. Particularly telling is the fact that the requirement for an annual compiling
and sending to JCS of the effective Rules of Engagement is all but ignored—and
few appear to care! Why?

Definitions

Rules of engagement (ROE) are directives that a government may establish
to delineate the circumstances and limitations under which its own naval, ground,
and air forces will initiate and/or continue combat engagement with enemy
forces.

Under this JCS definition, ROE should not delineate specific tactics, should
not cover restrictions on specific system operations, should not cover safety-related.
restrictions, should not set forth service doctrine, tactics or procedures. Frequently
these matters are covered in documents called ROE.” ROE should never be
“rudder orders,” and certainly should never substitute for a strategy governing
the use of deployed forces, in a peacetime crisis or in wartime.

Figure 1 is a Venn diagram showing two concentric circles, one wholly inside
the other. The area of the larger circle encompasses all those actions permitted
under the law (domestic law and the law of armed conflict). The area of the inner
circle represents those fewer actions permitted by the ROE.

The law of armed conflict binds the actions of nations and their armed forces.
The United States government can, by its own action, change its ROE;
international law, however, can be changed only by international agreement or
consistent practice of nations. The law of armed conflict and domestic law are,
of course, important influences in drafting the ROE, but they are not the only
influences. ROE also reflect the influence of operational, political, and
diplomatic factors.

* Reprinted from the Naval War College Review January-February 1983.


260 Readings on International Law

7. Memorandum from Rear Admiral S.H. Packer to the Director, Joint Staff dated 28 October 1982,
declassified 17 January 1991.

8. President Ronald Reagan, United States Oceans Policy, 10 March 1983.

9. Negroponte, Who Will Protect Freedom of the Seas? 855 Current Policy 3 (1986).

10. 14.

11. Roach, “Excessive Maritime Claims,” remarks prepared for delivery ata panel meeting ofthe American
Society of International Law, 20 March 1990, p. 7.

12. U.S. Freedom of Navigation Program, p. 2.

13. Department of the Navy message from the Office of Information to Commander in Chief United
States Naval Forces Europe, London, 19 March 1986.

‘The United States also conducted Freedom of Navigation operations against the Soviet Union in Avacha
Bay on the Kamchatka Peninsula, the Sea of Okhotsk, and the Sea of Japan.

This analysis should be compared with the outcome of what is known as the Vilkitsky Straits incident. In
August 1967, two U.S. Coast Guard icebreakers were crossing the Arctic basin north of the Soviet Union,
collecting oceanographic and other scientific data. Unable to find access through the ice, the vessels planned
to transit through the twenty-two-mile-wide Vilkitsky Straits, above the Taimyr Peninsula at about 105” east
Iongitude. On 27 August 1967, the Soviet Ministry of Foreign Affairs notified the American Embassy in
‘Moscow that the passage “would be a violation of Soviet frontiers” and that the straits constituted Soviet
territorial waters. Though the State Department issued a strong protest, claiming that the passage could not be
prohibited, the icebreakers were ordered not to pass through the straits. See Ackley, The Soviet Navy's Role in
Foreign Policy, Naval War College Review 53-55 (May 1972); and Pharand, Soviet Union Wams United States
‘Against Use of Northeast Passage, 62 Am. J. Int'l L. 927 (1968).

14. The Montreux Convention was signed in 1936 and concems the regulation of transit through the
Turkish strats of the Bosporus and Dardanelles; under it, exclusive Turkish sovereignty over the straits was
guaranteed. Complete freedom of transit and navigation was granted to merchant vessels. However, transit by
‘warships was significantly restricted. See 173 LNTS 213; RONZITTI, THE LAW OF NAVAL WARFARE
435-482 (1988).

15. Welles, While Keeping the Flag Flying, The New York Times, 15 December 1968, p. 3E.

16. Ackley, supra n. 13 at 55-56.

17. According to Igor Belyayev of Pravda, ““The waters of the Black Sea are joined with the Mediterranean
through the Bosporus and Dardanelles. The striving of the Soviet Union to protect its vital State interests in
the region is completely natural and lawful.” See Belyayev, “International Review,” Pravda, 7 December 1968;
Ackley, supra n. 13 at 55.

48. Sharifov, Provocateurs at Sea, lavestiya (8 December 1968).

19. Butler, Innocent Passage and the 1982 Convention: The Influence of Soviet Law and Policy, 81 Am. J. Int'l
L. 333 (1987).

20. See “Rules for Navigation and Sojourn of Foreign Warships in the Territorial and Internal Waters
and Ports of the U.S.S.R.,” 28 LL.M., 1715 (1985), and Neubauer, The Right of Innocent Passage for Warships
in the Teritorial Sea: A Response to the Soviet Union, Naval War College Review 52 (Spring 1988).

21. 24 LL.M. 1715-1717 (1985).

22, Welles, supra n. 15 at 3E.

23. U.S. Ships Report Soviet Mock Attack, Los Angeles Times, 11 August 1979, p. 5.

24, Atkinson, High Seas Diplomacy Continuing, The Washington Post, 27 July 1984, p. 1.

25. The Caron and Yorktown had earlier entered the Black Sea on 9 December 1985.

The Yorktown is a Ticonderoga-class cruiser equipped with Aegis, a computer-controlled, radar-directed
defense system that transmits simultaneously in all directions and can track multiple targets, while selecting,
aiming, and firing the weapons best suited to destroy each target. It can also engage an incoming missile while
searching for and tracking additional missiles. The Caron is a Spruance-class destroyer.

Both the Yorktown and the Caron are capable of carrying nuclear weapons. The technology used by the Caron
and Yorktown was considered so advanced that much of it was not even shared with U.S. allies. In fact, according
to a Pentagon analyst, “Any effort to seize the Caron or the Yorktown and you'd see every U.S. or NATO
fighter-bomber in the area hitting those Soviet ships. Nor would the navy captains go quietly. They'd broadside
until they sank.” See RICHELSON, AMERICAN AND THE SOVIET TARGET 165 (1987); Sale, Analysts Believe
Soviet Ramming Orders Came From Moscow, UPI, 29 February 1988; and Arkin, Spying in the Black Sea, Bulletin
of the Atomic Scientists 6 (May 1988).

26. According to Admiral Chermavin, “Taking into account the openly provocative nature of the actions
of the US. ships, the command issued an order that the combat readiness of the strike force of the fleet be
enhanced. Ships and planes were promptly prepared for performing a combat mission.” See Jack Redden,
Soviets Go on Alert in Presence of U.S. Ships, UPI, 22 March 1986; Butler, Innocent Passage and the 1982 Convention:
The Influence of Soviet Law and Policy, 81 Am. J. Int'l L. 344 (1987).

27. To the Shores of Tripoli, Time, 31 March 1986, p. 26.



172 Readings on International Law

strategy for controlling the development of ocean law rules. The thrusts of this
new strategy appear to be twofold: (1) To influence or direct the present
understanding of customary law and its future course. (2) To enter into discus-
sions and negotiations with appropriate nations with a view toward achieving
agreements or understandings favorable to U.S. ocean interests. Let’s briefly
examine some aspects of these two approaches.

Control of customary law: The United States continues to assert that: The deep
seabed beyond national jurisdiction is “free high seas” as a matter of customary
international law; thus, deep seabed minerals are free for the taking by any nation
which does not bind itself contractually to the 1982 treaty’s deep seabed regime.
(Third World nations, and some others, disagree, relying principally upon the
UN General Assembly Resolutions declaring the deep seabed the “common
heritage of mankind” and purporting to impose a ban on mining the seabed
outside the international system now described in the new treaty.)

Freedom of navigation and overflight for all vessels and aircraft—including
military vehicles and submerged submarines—is recognized by custom
everywhere beyond the territorial sea, even within 200-mile zones, The United
States will continue to assert this principle by words and deeds. On 10 March
1983, President Reagan proclaimed an Exclusive Economic Zone for the United
States and used the occasion also to proclaim, in no uncertain terms, the U.S.
view that customary international law—as reflected and articulated, but not
created, in the 1982 treaty—includes the rule of freedom of navigation and
overflight everywhere seaward of territorial seas.** (Some nations, exemplified
by Brazil,>* disagree.) .

Rights of transit passage for submerged submarines and for aircraft through
and over straits, even those blanketed by territorial seas, exist as a matter of
historical practice, which customary law recognizes and which, again, is articu-
lated but not established in the UNCLOS III treaty. (Many nations, and not just
Third World countries, disagree.)

Similar rights of transit passage are recognized through and over the waters of
archipelagic states. (Some nations disagree.)

Discussions and negotiations: While it tries to affect customary law trends, the
United States will also continue to conduct talks and negotiations with other
states regarding various American ocean interests.

As to deep seabed mining, the United States is not only attempting to ensure
that the 1982 treaty fails, but that the mining nations enter into their own
“mini-treaty” to establish a deep seabed mining regime more compatible with
free enterprise precepts. Since several of these mining nations have signed (but
not yet ratified) the 1982 Convention, chances for U.S. success in this venture
remain questionable.


834 Readings on International Law

enforce the rule against first use of force. This justification mobilized both
domestic and allied public opinion to her cause. Indeed, Secretary of State Haig’s
memoirs show that enforcing the rule against first use was important in gaining
American support for Britain rather than for our other ally, Argentina.” In the
end, the rule gave moral strength and allied assistance to the British and it helped
isolate the Argentines, even from some of their most important Latin American
allies. Indeed, the U.N. Security Council called upon Argentina to withdraw
with only Panama voting no, though the Security Council offered no force to
help the British.”

The Intervention Exceptions to the General Rule
Against Shooting First

The Falklands case was a clear-cut armed invasion, as was Grenada in 1983.
In both cases, the invader was condemned at first by most of the other States of
the world. In the Grenada case, the United States justified its invasion on three
grounds: the intervention was requested by the Governor General of Grenada
to put down an insurgency; the intervention was undertaken to protect American
medical students in danger because of the insurgency; and the intervention was
authorized by a regional collective security organization, “standing in the shoes”
of the U.N. Security Council. I will discuss each of these justifications.

Intervention of the Request of the Sovereign Government. The Governor General
of Grenada had asked for assistance from outside in defending the island’s
government from a military coup which had resulted in the murder of the Prime
Minister and some of his cabinet. The U.N. Charter, of course, permits collective
self-defense against an armed attack from the outside.® Many nations justify
assistance to an established government against a domestic insurgency on similar
grounds, especially if the insurgency is assisted from the outside.” But the
Governor General had been captured by the insurgents. Moreover, the United
States could not make his request public while he was in captivity for fear of
endangering his life.'° As a result, this justification was not described in initial
press accounts.

Intervention to Protect Nationals. The second justification was that the American
medical students on the island were in danger following the coup, and there
seemed to be no established government to protect them. Protecting a State’s
nationals abroad as well as at home can be a part of self-defense. Many States
recognize a right of intervention when: there is an imminent threat of danger to
nationals of the intervenor; the government of the State intervened is unable or
unwilling to protect them; and the intervention is confined to providing for their
protection.!"


256 Readings on international Law

¢ Hampering the activities of the personnel and equipment of the armed forces
of the other party in a “Special Caution Area” in a manner which could cause
harm to personnel or damage to equipment.

* Interfering with command and control networks in a manner that could
cause harm to personnel or damage to equipment of the armed forces of the
other party.

In addition, the Agreement stated that the parties “shall exercise great caution
and prudence while operating near the national territory of the other Party.” It
allowed the parties to designate the above-mentioned “Special Caution Areas”
inside which military personnel must establish and maintain communications and
undertake measures to prevent dangerous military activities. Finally, the Agree-
ment provided for the establishment of a Joint Military Commission to ensure
compliance with the Agreement and consider ways to ensure a higher level of
safety.

Reaction to the Agreement was positive on both sides. Admiral Crowe was
pleased that it had been negotiated by military professionals. Similarly, Major
General George Butler, chief of the American negotiating team, noted that the
Agreement represented “a new level of trust” between the two nations’ military
and civilian leaders. The Soviet press agency Tass stated that the signing was “an
unprecedented event which would have been inconceivable two years ago.”

However, the application of the Agreement to U.S. Freedom of Navigation
exercises was unclear despite its apparent relevance to FON operations. Article
VIII of the Agreement stated, “This Agreement shall not affect the rights and
obligations of the Parties under other international agreements and arrangements
in force between the Parties, and the rights of individual or collective self-defense
and of navigation and overflight, in accordance with international law. Consistent
with the foregoing, the Parties shall implement the provisions of this Agreement,
taking into account the sovereign interests of both Parties.”©” Moreover, sup-
plemental Agreed Statements added, “As indicated in Article VIII . . . this
Agreement does not affect rights of navigation under international law, including
the right of warships to exercise innocent passage.”® Since the two sides had
differing views on the right of navigation and overflight through the territorial
sea, Article VIII and the accompanying Agreed Statements would appear to have
precluded application of the Agreement to such issues.

The issue of innocent passage was resolved in a separate series of negotiations
that took place between U.S. State and Defense Department law-of-the-sea
representatives and Soviet officials, including Yuri Rybakov, head of the treaty
and legal division of the Ministry of Foreign Affairs. Throughout these discus-
sions, the Soviet representatives emphasized that the Soviet Union desired a
diplomatic solution to the issue of innocent passage. In fact, “Rybakov intimated
that the ongoing bilateral LOS channel would be the best forum through which
to achieve such a solution because of its demonstrated problem solving record


Index 599

zonal approach to the marine environment, 92-93
Iran-Iraq war, 264, 503, 511
Iraq
acquisition and development of biochemical weapons, 503
bombing of Iraqi research reactor in 1981, 504
effort to build atomic weapons, 504
invasion of Kuwait, 533
Iran-Iraq War, 264, 503, 511
Iraqi tank “surrender,” 549
Kassem, President, 88
military ruses during the Iraq-Iran war, 542
Shatt-al-Arab crisis, 88
signatory to ENMOD convention, 536
U.N. Security Council Resolutions concerning responsibility for damage in Kuwait, 536, 538
use of biochemical weapons, 511
Ireland, refusal to sign European Convention on the Suppression of Terrorism (1976), 380
Israel
access to Gulf of Aqaba and Strait of Tiran, 88, 91
ancient conquests, 543-544
destroyer Eilat, 336
Entebbe incident, 396, 419, 460
LOD massacre (1972), 409, 410, 454
regional monopoly over weapons of mass destruction, 504
strike against Iraqi reactor, 27
Iealy
Adhille Lauro case, 338-339
LOS Conventions statements, 288
Squadra Anti-Commando anti-terrorist force, 420

J

Jackson, General Andrew, 459

Jackson, Supreme Court Justice, 355

Janis, Mark W., 47-60, 50, 178, 179

Japan
addressing growing Soviet threat to Japan, 562-563
as a maritime power, 346
definition of the North Territories, 232
developing U.S.~Japan Asian policy, 562-563
“doughnut hole,” 222
during Carter administration, 555-556
easing economic tensions with U.S., 562, 563
economic importance, 561
Geneva Convention on the Law of the Sea (1958), 162
geopolitical relationship with U.S. and Soviet Union, 231
historical resentment of the Soviet Union, 232-233
improving relations with the PRC, 557-559, 561
Intergovernmental Maritime Consultative Organization (IMCO), 124, 125-127
investments in Siberia, 235,
‘Japanese Defense Agency 1989 White Paper, 237-238
Japanese Self-Defense Forces, 237, 238, 561-562
Kurile Islands (North Territories) claim, 231- 241, 559-560
Malacca Straits Council, 124, 126
military forces, 561-562
possible independent role in Asia, 561-562

. possible neutrality, 560
possible rearmament and militarization, 560-561


Goldie 395

3. Declares that the exploitation of unlawful seizure of aircraft for the purpose
of taking hostages is to be condemned;

4. Declares further that the unlawful detention of passengers and crew in transit
or otherwise engaged in civil air travel is to be condemned as another form of
‘wrongful interference with free and uninterrupted air travel; . . .

Furthermore, the above formula used in the 1970 Resolution may be
contrasted with that in the General Assembly’s 1977 Terrorism Resolution. This
reflection of the contemporary international consensus on the subject ordained
that the Ad Hoc Committee on International Terrorism should merely study the
“underlying causes of terrorism” before “recommending practical measures”**
for combating it. Of the three resolutions agreed upon in 1977, that on
International Terrorism was the most general and the mildest. On the other hand,
that on interference with international civil aviation, while perhaps lacking the
unequivocal force of the relevant paragraphs of the 1970 statement, was more
strongly expressed than its two contemporaries; and the question of hostage-
taking is the subject of continuing investigation, study and negotiation.

During February 1978, the General Assembly’s Ad Hoc Committee on
Hostages met in Geneva with a view, pursuant to a General Assembly Resolu-
tion?” prescribing its mandate, to drafting an international convention against the
taking of hostages. This committee would appear to have agreed that the taking
of hostages is prohibited by international law. A number of States have asserted
that safeguards to be assured to national liberation movements should in no way
entail the granting of a license to take hostages. Certain participants have also
pointed out that in drafting the Convention no confusion should be permitted
between the status of prisoners of war (captive military personnel participating
in hostilities) and hostages (human beings held in order to extract an advantage
or concession, including money, from a third person). Some States have shown.
concern for safeguarding the right of asylum. Emphasis was placed on the
obligation not to derogate from the duty to respect the territorial integrity and
sovereign independence of States in connection with the release of hostages.
Although certain technical and administrative articles were agreed upon, a
convention could not be drafted owing to fundamental political differences over
safeguarding the rights of movements of national liberation. The next meeting
of the Ad Hoc Committee on International Terrorism will be held in 1979.

“Host Country” Problems. The United Nations seems to be confronted by
the problem of terrorism in a number of additional contexts. For example, one
is said to have arisen in the United States as the proceedings of the “Committee
on Relations with the Host Country” reflected (this is a committee set up by the
General Assembly to take care of such housekeeping problems as the complaints
and conditions of life of diplomats and, generally, relations between the United
States and the United Nations) at its 60th meeting:


Aceves 253

Soviet-claimed territorial waters in the Black Sea and in the Far East.”*! Similarly,
Secretary Carlucci noted that the Soviet vessels had received authorization to
engage the United States and that the decision to bump the U.S. warships was a
political one.”

Soviet reaction to the incident was equally vociferous. The U.S. ambassador
to the Soviet Union, Jack Matlock, was summoned to the foreign ministry to
receive the formal Soviet protest. The protest note stated that “the American
ships did not react to signals given by a Soviet border guard ship in advance to
warn them of their approaching the state border of the U.S.S.R. and did not
make suggested changes in their course.”® It added that “a considerable distance
inside Soviet territorial waters, the American naval ships executed dangerous
maneuvering which led to a collision with Soviet naval ships. . .. Responsibility
for the provocation which has been made, which led to the collision of the
warships of the two nations, lies entirely and fully on the American side.”5+

The bases for the Soviet protest were similar to those of their protest following
the 1986 incident. First, the Soviets argued that the purpose of the FON
operations was to undermine the “nascent process of improvements in Soviet-
American relations and heightening international relation.” In response,
Secretary of State George Shultz noted that “the Freedom of Navigation Program
protects basic freedoms of the seas and skies and is completely consistent with
international law. If we are to retain our rights of navigation, we must periodically
exercise those rights in areas subject to illegal and excessive territorial claims.
These activities are fully coordinated within the Executive Branch and have the
support of the President and his Cabinet. Given our sensitive political relationship
with the Soviet Union, proposed operations in Soviet waters are subjected to
particularly rigorous scrutiny, prior to their approval, and while they are
underway. But we cannot exempt the Soviets from this program—to do so would
accede to their illegal maritime claims. This we do not intend to do.”

Second, the Soviets accused the United States of conducting intelligence
operations in Soviet territorial waters. Although vehemently denied by the U.S.
government, unidentified Pentagon officials stated that one purpose of the
operations was to collect intelligence information on Soviet defenses,”° Interest-
ingly, the following testimony before the Senate Armed Services Committee by
Admiral William J. Crowe, then Chairman of the Joint Chiefs of Staff, and by
Secretary Carlucci suggests that U.S. policy permitted some form of intelligence
collection within the territorial sea:

Chairman Nunn: Secretary Carlucci, following Senator [Dan] Quayle’s question on that
right of innocent passage, I assume that we acknowledge that right of ships in our territorial
waters, is that correct?

Secretary Carlucci: That is correct,

Nunn: So we are not asking the Soviet Union to do anything we do not do ourselves?

Carlucci: Absolutely not. As you are well aware, they have intelligence collection ships


84 Readings on International Law

25. Article 298.1(b).

26, Janis, Dispute Settlement in the Law of the Sea Convention: The Military Acti
‘Ocean Devel. Int'l L. 51 (1977).

27. MacGibbon, Some Observations on the Part of Protest in Intemational Law, Br. Y.B. Int'l L. 310 (1953)
and Johnson, Acquisitive Presciption in International Law, Br. YB. Int'l L. 341 (1950).

28. BUTLER, THE SOVIET UNION AND THE LAW OF THE SEA 178 (1971).

29. COLOMBOS, THE INTERNATIONAL LAW OF THE SEA 314 (6th ed. 1967).

30, There are a few minor exceptions not relevant here (e.g., suppression of piracy and slave trade). See
Wiegley, The Recovered Sunken Warship: Raising a Legal Question, U.S. Nav. Inst. Proc. 28 (January 1979).

ies Exception, v. 4, no. 1



126 Readings on International Law

vessel masters ensure a safer voyage. It is unlikely for several reasons, nevertheless,
that the vessel lanes and operational rules will completely resolve the safety and
environmental concerns associated with large-scale use of the Straits for oil
transshipment. First, the Straits are narrow and crowded and larger vessels are
constrained in their maneuvering by depth limitations, occasionally poor
visibility and the reduction of their speed for overall safety and also, for the largest
vessels allowed to operate in the Straits, to reduce their squat. Second, although
adoption of navigational rules by IMCO accords them definite international
recognition, they remain voluntary in many respects; in the case of the
operational rules approved by IMCO to supplement the TSSs and DWR, in
addition, there is considerable nonauthoritative language, e.g., the use of such
phrases as “as far as practicable” (avoidance of the DWRs by non-deep draught
vessels); “as possible” (maintenance of steady course within the TSSs); and
“advised to” (use of the DWRs, maximum 12-knot speed, participation in a
voluntary ships’ reporting system).

The “accommodation”! among regional and external interests that is repre-
sented by the IMCO-approved rules for tankers and other vessels in the Straits
at once illustrates the difficulty of arriving at significant substantive regulation on
an international level and the role of international law in resolving such
differences. The IMCO rules address only one aspect of the safety and environ-
mental problems associated with transit oil tanker traffic in the Straits—vessel
routes and operating practices. They do not provide in any way for operational
restrictions (such as no-discharge zones) or safety standards in excess of universal
standards, that would be desirable in such a constrained and heavily used
waterway. They do not establish any special provisions on vessel liability or
requirements for contingency capability or the establishment of funds to defray
or compensate the costs to the coastal States of having such heavy traffic in their
waters. To a certain extent, these issues can be resolved through informal and
voluntary arrangements between the coastal States and outside users—both other
governments and private interests. The Japanese, for example, largely operating
within the framework of private associations, the Malacca Straits Council in
particular, have made significant contributions to hydrographic surveying and
construction of aids to navigation.” The accommodation also, as has been noted,
makes enforcement difficult and it does not necessarily provide a sound basis for
farther regulation. Specifically, reporting of vessel passage—including informa-
tion on characteristics, speed, and time of passage prior to entry into the
Straits—remains voluntary. Further regulation of vessel traffic, such as estab-
lishment of a vessel traffic system (VTS) with comprehensive command and
control capacity, would require such information as well as an extensive shoreside
communication and administrative capability. Aside from questions about the
practicality of VTS in such heavily and diversely trafficked and strategic waters,
the necessary reporting of the movements and characteristics of vessels would


616 Index

emplacement/employment of weapons, 299-300
governed by treaty regimes, 283-284
international, 74-76, 92
Malacca
collisions, 122, 125
critical areas of, 122, 126
environmental and safety concerns, 120-123, 126
importance of, 119
jurisdictional conflict over navigation, 121-124
jurisdictional conflict over vessel traffic in, 119-121
‘Malacca Straits Council, 124, 126
oil spills in, 121
special deep-water routes (DWR), 125
traffic separation scheme, 123, 125-126
transit passage, 120-121
underkeel clearance (UKC), 125
Montreaux Convention, 102, 247, 284
passage, historic rights, 22
passage, restriction of, 64, 68
Strait of Tiran, 91
Straits of Magellan, 283-284
traffic separation schemes, 191, 202
transit passage, 75-76, 273
within territorial seas, 76, 92, 98, 273, 281
Sublime Porte of the Ottoman Empire, 88
Sun Tzu, 492
Surrender
codification of customary rule, 545-548
determining validity of offers to surrender, 550- 551
historical background of military practices, 543-545
historical background to law of armed conflict, 543-545
need for universal procedure, 549
obligation to accept, 541-552
practical judgment and acceptance of surrender, 550-551
signalling
aircraft, 548-549
group, 548
individual, 548
manifestations of intent to surrender, 548-550
ships, 548-549
surrender at sea, 542-543, 548
surrender on land, 548, 549
U.S. Naval policy, NWP 9, 547-549
white flags, 541-542, 543, 548, 549
Sweden
foreign policy, 529-530
manufacture and export of napalm, 472
neutrality, 524, 525-526, 526, 527-530, 531-532
UN. Charter incompatibility with, 524
nonparticipation in alliances, 528
protection of neutrality in EEZ, 287
self-defense capacities, 528-529
spillover of a superpower conflict, 97
‘wartime neutrality, 525-526
Switzerland
as neutral State, 525, 530-531
moral prestige, 21
Sybille, French frigate, 497, 499


Robertson 277

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 bel-
ligerents 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 waters®)(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);

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;7

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.


Wiegley 77

world, Some economic zone restrictions, because of their location, will impinge
upon naval operations more then others, thereby creating the prospect of
confrontation in one zone while other, more restrictive, zones are ignored by
the naval powers.

Restrictions. It is unlikely that a coastal State would attempt to restrict passage
through an economic zone. Such a radical position would create a very high risk
of confrontation with little chance of support from any but the most extreme
elements of the international community. By contrast, limited restrictions may
offer coastal States an opportunity for political visibility without a corresponding
loss of credibility. For example, any of the following naval activities could be
challenged in a foreign economic zone on the basis of general principles reflected
in the RICNT: weapons testing, military oceanography, intelligence collection,
submarine patrols, or maneuvers designed to influence the political affairs of the
coastal State.!? The challenge could take the form of an official pronouncement
directed to the government of the unwelcome vessels or a warning issued directly
to the offending warships.

There are other restrictive claims that would also increase the potential for
conflict at sea but, like creeping jurisdiction, the possibilities are too uncertain
to permit more than a brief mention. Such claims as special military zones,”°
“closed” seas”! unique baselines for territorial seas,” and enclosure of wide bays
have all been announced in the past by various coastal States,”* and there is no
reason to believe that a new law of the sea convention would either cause the
old claims to be rescinded or eliminate the prospect of new ones.

In the aggregate, the potential for conflict between developing coastal States
and the naval powers is significant enough that the latter should begin to develop
policies for meeting challenges to their military uses of the oceans. Detailed legal
analysis will have to await the actual challenges, but it is not too soon to consider
some of the legal dimensions of various responses. At stake is more than
unrestricted mobility for naval vessels. Equally important is the moral credibility
of the naval powers involved, particularly if the threat or use of force becomes
the final arbiter of a dispute.

Conflict Resolution. The numerous articles dealing with problems of naval
mobility in the new ocean regime have generally attempted to deal with potential
causes of dispute, but scant attention has been paid to the problems of dispute
settlement. In this area writers have seemed content to draw obvious conclusions
about the need for greater diplomacy and the importance of negotiated agree-
ments. The difficult questions remain—the questions that arise when diplomacy
and negotiations fail.

The settlement of disputes has not been ignored at UNCLOS III. A significant
portion of the RICNT deals with dispute settlement, even though the drafters


516 Readings on International Law

in the loop will still be the key to battle, no matter how lethal a battlefield becomes
for living organisms. Despite predictable advances in robotics, artificial intel-
ligence, and microminiaturization, a human being will long remain the most
versatile, 100-gigabyte, mobile computer system that can be mass produced by
unskilled labor.

So where does this leave bioweapons? Will they simply continue to be a wild
card in the battlefield and force structure equation? The vision of an insect
weapon described above arises from a view of the military future centered around
hardware. Long before insect weapons become technically feasible, however,
bioweapons may be able to achieve the same nasty results through gene-splicing
and techniques yet to be developed. Even at the tactical level, precisely en-
gineered microbes could turn out to be a more formidable threat than precision-
guided munitions (PGMs).

Weaponizing the life sciences threatens to change a basic perspective of
warfare. For centuries, the military’s prime focus has been to marry its warriors
to appropriate weapons. Conceptually, modern warriors still fight like their
medieval counterparts—albeit with rifles instead of arrows, with tanks instead of
horses, and with artillery and rockets instead of catapaults. The regime of soft
weapons, bugs and drugs, weakens this bond and threatens to end-run the
modern focus on weapons that rely on the application of brute force. The
battlefield of today is, in essence, a high-explosive environment. The battlefield
of the future may well end up being a hellish mix of high explosives (micro-nukes
and PGMs), low explosives (beam weapons and rail guns) and no explosives
(biochemical agents). 38

Wars Hot and Cold

Soft weapons also circumvent current military operations in another fun-
damental way. An essential element of warfare is the ability to determine when
one has been attacked. The use of a nuclear weapon, for example, is not likely
to go unnoticed. This is not necessarily true of biological weapons.

An ominous new possibility is that attacks could be mounted which mimic
natural phenomena so well that the onslaught may not be recognizable for what
it is. Potentially, biological agents can be converted into the ultimate stealth
weapons. The dark side of biotechnology enhances the opportunities for a kind
of shadow war with no formal battlefronts and no detectable invasion.

One can analogize a nation’s military forces to antibodies created by society
to protect against, and deal with, external threats. But what if this protective
“antibody” fails to recognize an invader or pinpoint the source? Invisible attacks
of this sort represent the highest level of maneuver warfare. According to Jeremy
Rivkin, “microbes are the foot-soldiers of the 21st century.”®? More precisely,
they threaten to become the elite saboteurs of the coming century. To the degree


Index

‘Symbionese Liberation Army, 407, 475
Syria

“Achille Lauro case, 339

acquisition and development of biochemical weapons, 503

T

‘Taiwan, 37, 557
Tehran, seizure of U.S. Embassy, 456
‘Tel Aviv bus massacre by P.L.O., 377
Territoriality, 101
‘Territorial integrity, 371, 395
fleeing foreign nationals, 41-42
Territorial seas, 161-162, 438, 579
12-mile limit, 63, 64, 68, 74, 98, 119-120, 200, 263, 272, 278
3-mile limit, 57, 64, 91, 160, 200, 266-267, 271
as internal waters, 278
as neutral “maritime territory”, 276
at the conclusion of WWII, 268-269
baselines, archipelagic, 201
baseline definition, 200, 278
baselines, straight, 201, 271, 272, 278
“cannon-shot rule,” 266
coastal state security, 194
containing international straits, 201-202
creeping jurisdiction. See Creeping jurisdiction.
definition, 160, 200
freedom of navigation, 194
innocent passage, 92, 98, 200, 278, 279
innocent passage for warships, 189-196
jurisdictional changes, 107
legal regime of, 267
mare clausum, 265
mare liberum, 265
origin of, 264, 265-272
Persian Gulf tate claims, 88
“principle of contiguity,” 89
recognition by U.S. Supreme Court, 268
Tights of coastal states to limit innocent passage, 243-259
safety of navigation restrictions, 193,
sovereignty, 279
Sublime Porte of the Ottoman Empire, 88
traffic separation schemes, 193
‘Terrorism
aircraft hijacking or sabotage, 338
alleged against U.N. missions in U.S., 395-396
anti-terrorist forces
aborted U.S. rescue mission, 422-423
British Special Air Service (SAS), 421, 423
coastal State forces responding to offshore maritime terrorism, 442-444, 445-446
Egyptian commando forces, 419
French Gigene anti-terrorist force, 420
Germany's Grenzschutsgruppe-9, 380, 388, 393-394, 397, 419-420, 421, 423
Israel's Saiyeret, 419
Tealian Squadra Anti-Commando anti-terrorist force, 420
USS. military, 419, 420-422, 423
USS, state and local, 421

617


Robertson 301

[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,7°3

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
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 discussion 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,”2°* Professor Levie’s study concludes that
passage through straits “has been barred by mines in past conflicts and undoub-
tedly will be again in the future.”

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. Techni-
cally, 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
form a basis for an effective regime in time of conflict seems open to question.
The vast areas encompassed within archipelagic waters and the great lengths of
some archipelagic sea lanes would suggest that rule-makers should be carefiul not
to create rules that will be honored more in their breach than in their observance.


478 Readings on International Law

All possible means will be employed to limit the risk to the lives and property of friendly forces and
civilians. In this respect, a target must be clearly identified as hostile prior to making a decision to place
fire on it.

11. In the plenary sessions the United States offered the following understanding to Article 57:

‘Commanders and others responsible for planning, deciding upon or executing attacks necessarily have
to reach decisions on the basis of their assessment of the information from all sources which is available
to them at the relevant time,

This statement reflects customary international law. In 1948 charges against former German Gen.
Lothar Rendulic alleging he had carried out wanton destruction in the Norwegian province of inmark
were dismissed by a Nuremburg tribunal, which declared that“. . . the conditions, as they appeared to
the defendant at the time were sufficient upon which he could honestly conclude that urgent military
necessity warranted the decision made (that is, . . . a8 a precautionary measure against an attack by
superior [Russian] forces).” U.S. v. List, et al., XI Trial of War Criminals 1113, pp. 1295-1297.

12. The Declaration of St. Petersburg, 1868, as found in Department of the Army Pamphlet 27-161-2,
International Law, 1962, p. 227.

13. Or the red crescent or red lion and sun, the authorized distinctive signs of the medical services of the
armed forces of some Moslem states (e.g, Egypt, Iraq, Jordan, Syria, and Turkey) and Iran, respectively. Israel
1uses a red shield of David, which has not gained international recognition.

14. In contrast, during the 1945 battle for Iwo Jima, Secretary of the Navy James V. Forrestal offered this
praise of medical evacuation efforts: “I went aboard the [hospital ship] Samaritan [AH-10], where Navy surgeons
and corpsmen were already dealing with the casualties from the day and the night before.” MOREHOUSE,
THE IWo JIMA CAMPAIGN 139 (1946).

15. The Army and Marine Corps estimate that virtually 100 percent of U.S. battlefield casualties in Vietnam
requiring medical evacuation were removed from the battlefield by helicopter; 15 percent of battlefield casualties
in Korea were removed by helicopter. The Army carried out 950,000 helicopter evacuations in Vietnam.
During the Vietnam War, 1 percent of the personnel evacuated to hospitals died of wounds, as compared to
2.5 percent in Korea and 4.5 percent in World War II. While these advances are tied to improved medical
facilities, they also relate to the increased use of the helicopter for battlefield evacuation.

16, Article 26(2) defined “contact zone” as “any area on land where the forward elements of opposing
forces are in contact with each other, especially where they are exposed to direct fire from the ground.”

17. Mossop, Hospital Ships in the Second World War, 24 Brit. ¥. B. Int'l L. 402 (1947); and I Report of the
International Committee of the Red Cross on Its Activities During the Second World War 213 (Geneva: ICRC, 1948).

18. U.S. Laws, Statutes, etc., “Hague Convention (X) for the Adaptation to Maritime Warfare of the Principles of
the Geneva Convention,” United States Statutes at Large (Washington: U.S. Govt. Print. Off, 1910), v. 36, pt
2, p. 2371.

19. Distinctive signals and communications necessary for the improved identification of medical transpor-
tation require implementation through the International Telecommunications Union (ITU), the International
Civil Aviation Organization, and to some extent, the Intergovernmental Maritime Consultative Organization.
This subject is on the agenda for the ITU 1979 World Administrative Radio Conference.

20. See e.g,, Article 22 to the Treaty for the Limitation and Reduction of Naval Armaments, otherwise
known as the London Treaty of 1930, which attempted to prohibit submarine warfare by placing unreasonable
restrictions upon submarine operations. Although reaffirmed by a 1936 Proces- Verbal acceded to or signed by
Great Britain, the United States, Germany, and Japan, the International Military Tribunal at Nuremberg in its
proceedings against Grand Adm. Karl Doenitz, former Fuehrer der Unterseeboote, found that those limitations
had not been followed by any of those parties during World War Il.

21. Although degree of adherence is not the sole criteria for determining a law's effectiveness, the reader
may consider the response of U.S. citizens to the 18th Amendment (prohibiting liquot) and the 55-mph speed
limit as examples of legislating conduct beyond the perceived point of necessity or reality.



Boma 205
NORTH KOREAN BASELINES, AND SOVIET LINE ENCLOSING PETER THE GREAT BAY

Figure 2

consequently, as inviolate. In other words, no innocent passage or nonemergency
transit of any kind is permitted without the prior permission of the coastal nation.

Second, and of possibly greater significance, the baselines, as has been
previously mentioned, set the inner boundary which determines the seaward
extent of the territorial sea, and the contiguous and exclusive economic zones.
For example, off the North Korean east coast city of Wonsan, straight baselines
extend internal waters 50 nautical miles seaward. Thus, impermissibly drawn
baselines, while aesthetically pleasing on a chart, allow the coastal nation to
exercise increased control over expanded internal waters, while their claims
encroach seaward at the expense of the maritime common owned by all.

Uncertainty of Territorial Sea Claims. As was indicated, the North Koreans have
established the breadth of their EEZ and military boundary zones, but not the


Hu and Oliver 179

to quantify the sea dependence of a State by employing these maritime power
components/factors in equation to generate a rating for sea dependence. After
going through all these complexities, Hill ends up, however, with no clear
definition for medium maritime powers other than those powers that lie between
the self-sufficient and the insufficient.

Both Janis and Hill’s efforts vindicate Cable’s observation that measuring
power by the aggregation of resources tells us little about the essence of power.
The central weakness of these approaches, then, is that they more often than not
classify navies/naval powers using quantitative or descriptive terminologies
which convey little basis for the assessment of actualized naval power in a political
context. For example, Janis’ “coastal navies” include three different classes. In
reality, some of these navies possess power projection capabilities. However, the
term “coastal” suggests they are tightly attached to their coastlines with minimal
projection capabilities. In addition, Hill’s classification of “super,” “medium,”

ind “small maritime powers” suggests that upper-class powers can readily defeat
lower-class powers. However, the outcome of the major fisheries disputes of the
postwar era demonstrates that this common sense impression does not stand up
under examination.

A different approach is therefore needed in order to understand naval power
across the full spectrum of the world’s navies. This new approach can be termed
a “functional analysis”—i.e., understanding the nature of different naval powers
from the scope of the functions which they have the capacity to attain. Ken
Booth has argued for the advantages of taking such a functional or mission
approach:

* Concentration on policy objectives should encourage the rational selection
of the resources to be allocated to naval force.

* A mission approach should help [with] the problem of establishing tactical
and financial priorities.

* It should assist the optimum selection of weapons systems.

+ Itshould ensure that the members ofa navy focus on the whole rather than
on one of its parts.

« Finally, by clarifying why navies might exist for any particular country, one
can discuss more sensibly the array of strategies and tactics they adopt.”

Booth also argues that before asking “What is their naval strategy?” one should
ask, “What is their interest in the use of the sea?”® By the same token, the
competence and power of a navy should not be judged simply by its physical
capability, i.e., the size or the weaponry. Rather, they should be scaled against
the context in which a navy is operating. In other words, ifa navy is able to fulfill
and meet the functional needs required by the environment or circumstance in
which it serves, it is a powerful navy regardless of its physical size.


338 Readings on International Law

Thus, the general rule permitting only a ship’s flag State to use force in order
to stop the ship in international waters has exceptions for a few crimes of particular
concern to a coastal nation. In the case of offenses committed aboard civil aircraft,
the general rule is also that only the flag State, the nation of registry, has
jurisdiction to force the aircraft down over international water in order to arrest
and prosecute. Another State “may not interfere with an aircraft in flight in order
to exercise its criminal jurisdiction.” There are, however, exceptions including
when the offense was committed “by or against” a national of the arresting
State.

For both ships and aircraft, there are thus important exceptions to the general
tule that only the flag State may use force to arrest when in international waters
or airspace. Moreover, for at least one offense, treaties permit any State which is
a party to stop ships or aircraft on or over international waters even though they
do not fly its flag. The 1982 U.N. Convention on the Law of the Sea permits
“every State” to seize a pirate ship or aircraft on or above international waters
even if it is flying the flag of another nation.”

The international law dealing with terrorism may be moving in this direction.
There are now treaties against aircraft hijacking and sabotage, and against
hostage-taking whether on aircraft or elsewhere.*! Each of these treaties expands
criminal jurisdiction over the offenders to party nations beyond the nation having
sovereignty over the aircraft, ship or territory where the offense occurred. For
example, in addition to this State, these treaties give jurisdiction to any party
where the aircraft later lands with offenders on board or where an offender is
later found, In the case of the hostage-taking treaty, the nation-party of which
the offenders are nationals and any other party of which the hostages are nationals
may also exercise jurisdiction.

Each of these treaties requires States which are within one of these interested
classes “to take such measures as may be necessary” to arrest and prosecute
offenders. Each of them establishes a basic obligation on a nation which is party
and which gets its hands on an alleged offender: either turn him over to your
own prosecutors or to those of another nation-party classed as interested by the
treaty, for example, one whose nationals had been held hostage.

This does not establish universal jurisdiction over terrorists but its purpose is
to deny them sanctuary anywhere. Nor does it clearly authorize using force to
arrest ships in international water or to bring down aircraft in international
airspace in order to arrest terrorists. But the new treaties impose obligations on
many States to take various measures to arrest hijackers, saboteurs and hostage-
takers, and to turn them over to their own prosecutors or to those of another
party within an interested class.

How do these rules fit the measures taken by Egypt, Italy and the United
States to deal with hijackers in the recent Achille Lauro case? Taking control of
the Achille Lauro by force and holding its passengers as hostages clearly constituted


Terry 537

articles within Protocol I merely replicate the regime established to protect the
environment in the Geneva Convention IV of 1907.

Recent Developments

On 11 March 1991, Japan’s parliamentary minister for the environment
proposed that the Governing Council of the United Nations Environmental
Program adopt a declaration of principles urging that the kind of environmental
destruction observed in the Gulfshould never again occur as an act of war. That
same day, French representatives to the Governing Council proposed two
initiatives, prohibiting targeting ecological areas, and protecting world heritage
monuments in time of war.

At Nairobi, Kenya, on 20 May 1991, the sixteenth session of the Governing
Council of the United Nations Environmental Program was convened. The
Japanese and French proposals were raised, as were Canadian and Greenpeace
concerns, The two latter announced their intention to host international con-
ferences of legal experts to explore ways of strengthening international law to
protect the environment more effectively.

A one-day conference in London on 3 June 1991 sponsored by Greenpeace,
the London School of Economics, and Britain’s Center for Defence Studies
considered a possible “Fifth” Geneva Convention on the Protection of the
Environment in Time of Armed Conflict. Greenpeace urged the 120 par-
ticipants, including twenty-four representatives from government and environ-
mental groups, to create a new convention which would state that the
environment may not be used as a weapon, that weapons aimed at the environ-
ment must be banned, and that indirect damage to the environment must be
forbidden.

This was followed by a July 1991 meeting of legal experts in Ottawa which
reviewed the use of the environmental weapon in the Gulf context and examined
existing international law regulating such use. U.S. participants at the Ottawa
meeting carefully underscored the merits of the existing regulatory regime, which
is based on the principles of necessity and proportionality under the law of armed
conflict. The U.S. concern regarding more restrictive environmental provisions
is that they could be implemented only at the expense of otherwise lawful military
operations—such as attacking targets which require fuel-air explosives (FAE) for
their destruction.

Observations and Conclusions
Because the environment was ravaged during the recent Gulf conflict, some

consider the relevant legal regime inadequate. In point of fact, the international
agreements and customary international law to which Iraq is legally bound would


xv

under the leadership of Professor Jack Grunawalt, Director of the Oceans Law
and Policy Department, remains the seminal work on the subject and has been
translated into several other languages for use by foreign navies.

Today, there are more international lawyers assigned to the Naval War
College than during any period in its history. In addition to the Stockton
chairholder and Professor Grunawalt, the Oceans Law and Policy Department
includes uniformed international/operational lawyers from the Navy, Army,
Marine Corps and Coast Guard. An Air Force representative will join the
Department next year. Still another full-time international lawyer is assigned to
the Joint Military Operations Department, as the holder of the Howard S. Levie
Chair of Operational Law. The Naval War College clearly remains committed
to this distinguished tradition of furthering the teaching and development of
international law, and we commend Admiral Stark and his colleagues for the
College’s many important contributions over the years.

Readings from the Naval War College Review

In 1948 the Naval War College began publishing the Naval War College
Review as a forum for discussion of public policy matters of interest to the
maritime services. The Review has provided yet another vehicle for the
dissemination of information and ideas concerning international law. Indeed,
over the years a number of landmark articles on the subject have appeared in
the Review.

In 1980, volumes 61 and 62 of the Blue Book series were devoted to Readings
in International Law from the Naval War College Review 1947-1977. Edited
by former Stockton chairholder (1968-69) Richard B. Lillich and John Norton
Moore (one of the current editors), these two volumes compiled a wealth of
valuable material on oceans law, the use of force, international human rights,
and a number of other important topics.

The present volume is a sequel to those Blue Books, bringing together under
one cover the most important contributions on international law published in
the Review between 1978 and 1994. It also includes one short monograph of
particular importance that was originally published by the Naval War College
as part of its “Newport Papers” series.

The articles are organized chronologically under six headings. Part I addresses
the role of law in the international system. We would in particular call the
reader’s attention to the contribution entitled “Contemporary International
Law: Relevant to Today’s World?,” by Rear Admiral Horace B. Robertson,
Jr., JAGC, USN (Ret.) from the Summer 1992 issue of the Review. After his
retirement as Judge Advocate General of the Navy, Admiral Robertson distin-
guished himself as an educator on the law faculty of Duke University. In
1990-91, he occupied the Stockton Chair at the Naval War College. It should


Wiegley 83

Licutenant Wiegley was assigned to the Naval Legal Services Office, Pearl Harbor and an
International Law of Sea Scholar at the University of Hawaii at the time this article was first
published.

Notes

1, Young, New Laws for Old Navies: Military Implications of the Law of the Sea, Survival 262 (Novem-
ber/December 1974).

2. Booth, Military Implications ofthe Changing Law of the Sea, in GAMBLE, LAW OF THE SEA: NEGLECTED
ISSUES, PROCEEDINGS OF THE TWELFTH ANNUAL CONFERENCE ON THE LAW OF THE SEA 363
(1979).

3, See, e.g., Ashmore, The Possible Effets on Maritime Operations of Any Future Convention of the Law of the
Sea, Naval War College Review 3 (Fall 1976); Knight, The Law of the Sea and Naval Missions, U.S. Nav. Inst.
Proc, 32 (June 1977); O'Connell, The Influence of Modem Operations at Sea, U.S. Nav. Inst. Proc. 157 (May

1977).
my Informal Composite Negotiating Text/Revision 1, U.N. Doc. No. A/CONF. 62/WP. 10/Rev. 1, 28
April 1979,
5, Consider the following trend: 1969 1979
Number of independent coastal States 109 131
Three-mile territorial sea claims 36 19
‘Twelve-mile territorial sea claims 39 16
Between 3 and 12 miles 23 8
Claims in excess of 12 miles 7 25
‘Other (irregular or unspecified) 4 4
6. Draper, The Indonesian Archipelagic State Doctrine and Law of the Sea, The International Lawyer 143
(Winter 1977).

7, O'Connell, supra n. 3 at 158,

8, Thereis some disagreement on the number. One hundred sixteen (116) is the official U.S. Government
figure although 121 are listed on a chart prepared by the Geographer of the State Department for a 1958
Conference entitled “World Straits Affected by a Twelve Mile Territorial Sea.” The State Department also
produced a pamphlet entitled “Sovereignty ofthe Sea” (Geographic Bulletin No. 3, Rev. October 1969) which
shows 94 straits as being between 7 and 24 miles.

9. U.N. Conference on the Law of the Sea, 1st 1958, Official Records, U.N. Doc. No. A/CONF. 13/152,
1958; Convention on the Territorial Sea and the Contiguous Zone, done 29 April 1958 (1964) 15 U.S.T.
1606, T.LA.S., No. 5639, 516 U.N.T.S. 205, Article 14(4).

10, Walker, What is Innocent Passage, Naval War College Review 58 (January 1969),

11, Convention on the Territorial Sea and the Contiguous Zone, Article 16(1).

12. Id,, Article 16(3).

13. Id,, Article 16(4); see also Corfu Channel Case (1949) LC J. 28.

14. According to CIA Map 503784 (May 1978), there are 22 coastal States that require notification or
permission before warships can enter their territorial seas, The United States does not honor these requirements.

15, Articles 37-44,

16. Dawson, The North Pacific Project at 101, Institute for Marine Studies Publication Series IMS-UW-77-1,
University of Washington, Seattle, (July 197).

17. Johnson & Gold, The Economic Zone in the Law ofthe Sea: Survey, Analysis and Appraisal of Current Trends,
Occasional Paper No. 10, Law of the Sea Institute, 28 June 1973).

18, O'Connell, supra n. 3 at 164; Booth, supra n. 3 at 345.

19. International Institute of Strategic Studies, Stratggic Survey at 20 (London, 1976).

20, CIA Map 503783 5-78 (May 1978) depicts 34 such zones. Fora discussion of one zone, see Choon-ho
Park, The 50-Mile Military Boundary Zone of North Korea, Am. J. Int'l L. (October 1978). The United States
does not recognize any of the 34 zones shown on the CIA map.

21. E.g., BUTLER, THE LAW OF SOVIET TERRITORIAL WATERS 19-27 (1967).

22, Exg,, International Boundary Study, Series A, Limits in the Seas, No. 43, “Straight Baselines: People’s
Republic of China,” Office of the Geographer, July 1972.

23, E.g., SAUNDERS, THE SOVIET NAVY 250 (1958) fora discussion of Peter the Great Bay which was
declared internal waters of the Soviet government in 1957.

24. GAMBLE & FISHER, THE INTERNATIONAL COURT OF JUSTICE: AN ANALYSIS OF THE
FAILURE 84 (1976).


Index 593

G

“Garden Plot,” U.S. Department of Army Civil Disturbance Plan, 417-418, 419
Geller, Jeff, 322
General principals of law, definition of, 7
Genetic engineering. See Biological weapons.
Geneva Convention of 1864 for the Amelioration of the Condition of the Wounded Armies in the
Field, 467
Geneva Convention of 1925, 514
Geneva Convention on the High Seas (1958), 34, 38, 162, 162, 440, 441. See also U.N.
Convention on the High Seas.
Article II, 135
Geneva Convention on the Law of the Sea (1958)
Convention on Fishing and Conservation of Living Resources of the High Seas, 162
Territorial Sea and Contiguous Zone Convention, 22, 161-162, 267
Geneva Convention on the Use of Environmental Modification Techniques (ENMOD)(1977),
535-536
Geneva Conventions of 1929 for the Wounded and Sick, 468, 473
Geneva Conventions of 1949, 458, 467, 473, 474, 535,
Protocols Additional of 1977, 467, 468, 469-477, 536-537, 547
Geneva Disarmament Conference (biological/biochemical weapons), 512
Geneva Protocol of 1925, 468, 472
George Jackson Brigade, 407
George, Alexander L., 324
Georges Bank, 65, 66
Germ warfare. See Biological warfare.
Germany
Altmark, 279
Bonn summit (1978), 381-382
draft U.N. convention on hostage-taking (1977), 380, 393-394
Federal Ministry of Defense, Humanitarian Law in Armed Conflicts Manual, 279, 283, 288, 293,
300, 302
‘Mogadishu rescue of hijacked Lufthansa aircraft, 380, 388, 393-394, 397, 419-420, 421, 460
Nazi protection of ethnic Germans, 24
Nuremberg War Crimes Tribunal, 332-333
reliance on offshore drilling structures, 435
“Schlieffen Plan,” 345,
terrorist bombing of West Berlin nightclub, 354
transfer of marine technology under UNCLOS Ill, 151
violation of Belgium’s neutrality, 345
war crimes, 23
‘West German Border Group Nine (Grenzschutsgruppe-9), 380, 388, 393-394, 397, 419-420, 421,
‘World War I casualties, 346
Gigene anti-terrorist force of France, 420
Glenn, Senator John, 419
Glomar Explorer, 22
Gorbachev, Soviet President Mikhail, 219, 231, 238, 239
INF Treaty, 565,
Gorshkov, Admiral S.G., 47, 56, 560
Grant, President Ulysses S., 412-413
Great Britain
anti-slave trade rules, 41
anticipated attack on Norway in WWII, 332
as.a maritime power, 346
bombardment of Port Stanley, 317
Canadian rebellion against, 332
Corfia Channel case, 280-281


852 Readings on International Law

one such undeclared war in Vietnam, some commentators insisted that the
President’s use of force was not lawful. Others, including several courts,!° argued
that the President’s use of force in Vietnam was authorized by the Tonkin Gulf
Resolution,'! as well as numerous appropriations and draft enactments. Even
those who contend that the Vietnam War was unconstitutional acknowledge
that at least some aspects of the war, such as its financing, were authorized by
Congress. For these critics, the argument that the Vietnam War was unconstitu-
tional is based solely on the absence ofa declaration of war.

In spite of this criticism, post-Vietnam presidential war making has been
accompanied by less congressional authorization than was the Vietnam War. The
introduction of U.S. Marines into Lebanon in 1982, for example, was only
authored by Congress in 1983 by the Multinational Force ir Lebanon Resolu-

n.!2 The 1983 intervention in Grenada!? was also preceded by n’ express
congressional authorization. Similarly, the only formal contact between the
President and Congress on the question of the 1986 air strikes against Libya took
place several hours before commencement of operations and did not result in
any form of congressional approval, either express or implied. The Libya
mission'* thus provides an unambiguous factual situation against which to test
the scope of the President’s constitutional war-making authority. If some form
of prestrike congressional authorization (whether or not a declaration of war)
‘was required by the Constitution, then the President’s conduct on 14 April 1986
was clearly unconstitutional. If not, then the President’s action was undertaken
within the bounds of his constitutional authority.

The Libya Mission’>

On the morning of 27 December 1985, terrorists attacked and killed civilians,
including five Americans, in the Vienna and Rome airports.'® The Abu Nidal
terrorist group was widely suspected of executing the attack. Abu Nidal was
linked by a 31 December 1985 State Department study to the government of
Libya.’” Specifically, the study found a “likelihood” of support from Libya in the
form of “financing, safehaven and logistical assistance.” Libya denied involve-
ment in the Rome and Vienna attacks,’? even as it praised them. On 29
December, the Libyan press agency, JANA, termed the Rome and Vienna attacks
“heroic.” By contrast, Yasir Arafat, chairman of the Palestinian Liberation
Organization, condemned the attack,”

Despite Libya’s denial, the United States accused Libya of. participation.” A
State Department report issued 8 January 1986, stated: “[Colonel Muammar el-]
Qaddafi has used terrorism as one of the primary instruments of his foreign policy
and supports radical groups which use terrorist tactics. ... Qaddafi has provided
safehaven, money and arms to these groups—including the notorious Abu Nidal
group. . . . Libya’s support has broadened to include logistical support for


Jacobson 173

As to the other major U.S. ocean interest—navigation and overflight—the
United States is trying to achieve understandings with such important straits states
as Spain and Indonesia (also an archipelagic state) concerning U.S. positions on
customary law and on rights of passage.

Other US. interests will be pursued along similar paths, although it appears
likely that, for these interests, the United States will be careful to make sure its
positions track the 1982 treaty’s provisions as closely as possible. Thus, for
example, the President’s EEZ proclamation and its accompanying policy state-
ment indicate that the United States will abide by assertions of jurisdiction over
scientific research by other nations in the EEZs, if such jurisdictional claims
comply with the “customary” rules articulated in the UNCLOS III treaty.

‘What does all this confusion and maneuvering mean for the Navy? First of
all, it should be apparent that “freedom of the high seas”—an international-law
citadel that has stood for centuries—is under siege. In the absence of the 1982
treaty, or something like it, the 200-mile zone concept is likely to continue to
evolve in directions that will impose further restrictions on navigation and
overflight, and this will be especially true for military vessels and aircraft. The
simple fact is that most nations are coastal nations who have no global navies and
therefore no perceived interest in keeping their offshore waters free for passage
and military maneuvers by superpower forces. Indeed, the 200-mile “barrier”
could soon be breached.

Passage through straits less than 24 miles wide (i.e., those covered by one or
more nations’ twelve-mile territorial seas) could be increasingly hampered by
legal objections of the straits States and by others anxious to make sure that the
United States, in remaining outside the 1982 treaty, is deprived of the “benefits”
of the UNCLOS III package deal. Similar challenges could meet American
attempts to exercise transit passage rights through and over archipelagic waters.

Second, the defense of the free-seas citadel could be costly in several ways.
Costs of achieving understandings or agreements with other nations could be
significant. For example, it is not unlikely that Spain will place U.S. overtures
regarding passage through the Strait of Gibraltar in a package with U.S. concerns
on Spain’s relationship to NATO and the renegotiation of U.S. bases agreements.

The United States could, of course, play the tough guy and simply go it
alone—do what it wants to do anywhere in the ocean—without obtaining the
consent of other affected and objecting nations. This approach, however, could
be costly in several ways:

* It could mean incurring the ill will of allies, friends and nonaligneds.

* It would certainly further alienate Third World nations.

* It could precipitate an acceleration of the pendulum swing toward further
coastal nation expansionism, making the job that much more difficult.


88 Readings on International Law

multilateral actions can be better understood. Examining these claims and
agreements in terms of the underlying national interests that exist within a given
region can offer insights into the nature of legal development and its relationship
to the regional context.

National Claims

Territorial Sea Claims. Iran’s territorial sea claims were directly tied to the Gulf
context. The 1934 claim to 6-mile territorial waters and the implicit use of
straight baselines (made after Iran’s participation in the 1930 Hague Conference)
‘was tied not only to the geographical characteristics of the Gulf, but also to Iran’s
security interests and to its efforts to avoid becoming entangled in the ongoing
European rivalries in the Gulf. Its subsequent claim to a 12-mile territorial sea in
1959 was directly tied to political developments in the Gulf and to Iran’s security
interests. Two days after Iraq’s President Kassem called for Iraq “to restore” a
5-kilometer stretch of the Shatt-al-Arab River that had previously been granted
to Iran, Iran extended its territorial sea from 6 to 12 miles for security reasons.
The Iranian claim presaged the Shatt-al-Arab crisis.

Saudi Arabia’s initial territorial sea claims were closely tied to regional
developments, specifically to Aramco’s interest in exploiting offshore oil. Saudi
Arabia, at the recommendation of Aramco, hired Judge Manley O. Hudson and
Richard Young of Harvard Law School to draw up its offshore claims to insure
that its offshore oil exploitation could succeed in a “sound legal environment.”
Upon the recommendation of Judge Hudson, Saudi Arabia accepted a “package
deal.” It provided for Saudi claims to: (1) territorial waters; (2) resources of the
seabed and subsoil of areas contiguous to the coasts; (3) claims to certain offshore
islands. Mr. Young, who participated in the writing of the claims, indicated that
the 6-mile claim was based upon “regional precedent,” dating back to the 1914
claim of the Sublime Porte of the Ottoman Empire that claimed 6-mile territorial
waters in the Gulf. Moreover, the use of “straight baselines” was tied to the
geographical configuration of the Gulf and based on the Norwegian legislation
that was being considered by the International Court of Justice in the Anglo-
Norwegian Fisheries Case.

The expansion of Saudi Arabia’s territorial sea to 12 miles in 1958 was directly
tied to Saudi Arabia’s security interests. Of primary importance in this regard was
the presence of Israeli warships in the Gulf of Aqaba.

Resource Claims. The Iranian and Saudi offshore resource claims were closely
related to developments within the Gulf. Iran’s “continental shelf” claim, as put
forth in 1949, was not enacted until 1955 because of the Anglo-Iranian oil
relationships. Also of importance were the results of the Qatar Case of 1950 and
the Abu Dhabi Case of 1951 which indicated that prior concessions did not


Joyner 435

rigs to reach 720.9 Save for Antarctica, these rigs operate seaward from every
continent.

To be sure, multinational oil companies are among the most prominent,
profitable, and economically visible corporate actors engaged in international
trade and commerce. To wit, worldwide investment for petroleum exploration
and exploitation in 1980 approximated $100 billion (of which nearly $75 billion
was allocated by U.S. industry alone).'° As would be expected, the increasingly
sophisticated technology needed to extract hydrocarbon resources from environ-
mentally inhospitable deep-water sites (such as the North Sea) have necessitated
more extensive capital outlays. Thus, the sheer magnitude of the economic
investment required by multinational corporations to construct and maintain
offshore drilling installations render them all the more enticing as targets for a
terrorist attack,'!

As of this writing no noteworthy terrorist actions have yet been launched
against any offshore drilling structures. Nevertheless, recent patterns of terrorist
activities in Western Europe suggest that a new trend may be on the rise, one
that counts as prime targets local power plants and other industrial facilities such
as nuclear generators, oil tank farms, and gas pipeline systems.!” If this indeed is
the case, any of the seventy or so North Sea drilling rigs would provide attractive
targets. Costing up to $2 billion each, these platforms supply much of the energy
needs for the North Sea nations. Accordingly, they are considered vital national
assets by Great Britain, Norway, West Germany and the Netherlands, and to this
end, special patrol vessels, troops, and aircraft have been committed and assigned
by these governments to defend their offshore structures from the prospect of
terrorist attacks, Put tersely, for these nations the threat of terrorism is perceived
as being very real and, consequently, is taken quite seriously.3

Possible Terrorist Strategies. Before proceeding to the international legal nuances
earmarking terrorism in general and its applicability to offShore drilling structures
in particular, brief mention is merited about possible terrorist strategies. Four
main options or tactical designs seem most plausible for a terrorist unit to
undertake in executing an attack against maritime structures.

« First, terrorists could opt to sabotage the connecting pipeline system and
pumping machinery between the deep-water facility and its onshore relay
stations. Logistically, this option would allow for a relatively simple operation,
entailing less risk than a sea-based attack, with potentially the same results, i.e.,
the production facility would be crippled, and widespread media attention would
be galvanized on the attack.

* A second conceivable scenario would find the terrorists merely issuing a
threat to destroy the facility unless some political precondition is met or monetary
extortion is paid. Admittedly, this option could allow sufficient time for the crew
to evacuate the platform and reduce the possible loss of human life. Even so,


Boma 209

nation’s resource needs and the interests of the remainder of States in minimal
interference with the maritime common.

Security zones, such as the North Korean variant, are particularly troubling
for they do not recognize even the limited, surface “innocent passage” rights in
the territorial sea, but rather seek to ban foreign warships entirely. They also
attempt to impose a permissive passage regime for nonmilitary vessels and aircraft.
Not only this, but the de facto recognition afforded if these claims are not physically
challenged would have precedential effect and, over time, might spur other,
perhaps, even more expansive claims of this sort. This would undermine the
careful compromises and balancing of interests which the 1982 LOS Convention
represents and lead to the proliferation of the very evils which the Convention
seeks to avoid.

The U.S. Role in the Assertion of Navigational Freedoms. The United States is
a maritime power which presently depends, both for its own security and that
of its interdependent allies around the world, upon the flexibility and speed of
its forward deployed maritime and air forces. And, this dependence is not likely
to lessen appreciably in the future. In the January 1988 report of the blue-ribbon
Commission on Integrated Long-Term Strategy, Discriminate Deterrence, the
authors stressed that for at least the next 20 years we will have an urgent need
for “versatile, mobile forces, minimally dependent on overseas bases, that can
deliver precisely controlled strikes against distant military targets.’“> Further, an
identified long-term trend which bedes ill for such a stvategy is “our diminishing
ability to gain agreement for timely access, including bases and overflight rights,
to areas threatened by Soviet aggression.”** Thus, preservation of navigational
and overflight rights is imperative to the rapid employment of our forward
deployed forces which, in turn, ensure our very survival.

Likewise, in peacetime, the economic lifeblood of the Free World flows
through the straits and waters of the world’s seas on a daily basis. Further inroads
into the freedoms of navigation and overflight could have the direst of conse-
quences for ourselves and our allies.

Given the proven irascibility ofthe North Koreans, as pointedly demonstrated
by the 1968 Pueblo incident and the downing of a U.S. Navy EC-121 aircraft
the following year, as well as the reality that alternative merchant routes and
fishing grounds are readily available and more prudently used by commercial
vessels, it is incumbent upon the United States, as the preeminent maritime
power, to consistently and patiently ply these troubled waters in order to establish
actual usage and to show peaceful contempt for the apparent North Korean
“annexation” of international waters and airspace.

Further, as will be discussed below, it is this author’s opinion that the objectives
of the Freedom of Navigation Program will not be met by one-time transits.


296 Readings on International Law

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 assume that an enemy force would accept the traditional restraints
on hostile activities (which presumably would include surveillance) for passage
of such great span and duration.

3. Concluding Remarks Concerning Archipelagic Waters. It is ap-
parent 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 III, Rear Admiral
Bruce Harlow, a vice-chairman of the United States delegation to that Con-
ference, 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? Ifa 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 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 surveil-
lance 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?’

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.'®! 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.


286 Readings on International Law

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."

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.'”° 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:

[Warships 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.

Although Oxman was concerned explicitly only with peacetime rights, his
conclusion is equally applicable in time of armed conflict as well. The juridical
nature of the zone does not change with the transition from peace to war.!”
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 terms
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.


Farrell 417

The concept of operations involved is detailed in the Department of the Army
Civil Disturbance Plan, “Garden Plot,” which provides for the employment of
military forces in times of civil disturbance within the 50 states, the District of
Columbia, the Commonwealth of Puerto Rico, and U.S. territories or posses-
sions.” The definition of a “terrorist” incident as defined in the plan is extremely
broad, providing considerable latitude for interpretation.”* Military commanders
who have been delegated the authority to supply equipment, in those cases in
which it may be difficult to determine whether an incident falls into the terrorist
category, are “authorized to accept the judgement of the FBI official making the
request if it is supported by available facts.” The FBI official does not have to be
the Director but may well be the senior agent on the scene.?>

As a matter of policy, the FBI has been given overall jurisdictional respon-
sibility at the locus of a terrorist incident wherever it occurs, including military
installations.

Department of Defense components are authorized to respond to
“reasonable” requests of the FBI for military resources. The form of assistance
may include material, facilities, and technical personnel acting in an advisory
capacity. As noted above, military personnel could not be used in a law
enforcement role outside a military installation without Presidential authoriza-
tion. While troops can be made available to the FBI with approval of the
President, command and operational control would remain with the military.

Requests for training, long-term loans of equipment and other requests not
based on imminent threats or ongoing incidents would be forwarded through
FBI and Department of Justice (DOJ) channels for submission by DOJ to the
Secretary of the Army.

Procedurally, the secretaries of the military departments, commanders of
military installations or organizations with delegated authority, and the com-
manders in chief of unified and specified commands outside the United States
could grant requests for riot control agents, concertina wire, firefighting resour-
ces, protective equipment, clothing, communications gear, searchlights, ex-
plosive ordnance disposal and detector dog teams. Other items not prohibited
could be provided.

Although circumstances will determine the order in which various forces are
employed, it is envisioned that first local and state police would be used, followed
by Army and Air National Guard under state control and, finally, federal military
forces.

The commitment of federal military forces as set forth in “Garden Plot” has
been viewed as a drastic last resort and their role should never be greater than
absolutely necessary under the particular circumstances that prevail. Firepower
is to be limited, with only semi-automatic weapons used. Where automatic
weapons must be employed, they will not be fired automatically, except on order
of competent authority as delegated by the task force commander.”


Hu and Oliver 187

of small navies can be confined by and so defined within the context of the 1982
United Nations Law of the Sea Convention. The national rights codified within
the Convention and conferred upon the coastal States can be used as guidelines
for political leaders and naval planners alike to design, plan, prepare, and construct
their navies. Theoretically and analytically, this approach offers a clear framework
since it is built upon two practical and tangible elements: the physical capacity
or reach of the navy and a written international treaty. Political objectives and
military planning are consolidated and orchestrated toward the same purpose—
the upholding and protection of national (maritime) interests within the 200-mile
limits of ocean territory.

Dr. Hu wasa fellow of the East-West Center at Honolulu, Hawaii and Dr. Oliver was professor
and chairperson of the Department of Political Science and College of Marine Sciences at the
University of Delaware, at the time this article was first published.

Notes

1, Are, To What Ends Military Power? International Security 3-35 (Spring 1980); Baldwin, Power Analysis
and World Politics: New Trends Versus Old Tendencies, World Politics 161-194 (January 1979); and BOOTH,
NAVIES AND FOREIGN POLICY (1979), passin; CABLE, DIPLOMACY AT SEA 36 (1985).

2, See JANIS, SEA POWER AND THE LAW OF THE SEA (1976).

3. Id, at 63-64,

4. See Hu, “Fishing Boats and Gunboats: The Convergence of Fisheries and Naval Policy,” (Ph.D. diss.,
Univ. of Delaware, May 1987). The four cases examined include: the “Tuna Wars” between the United States
and Peru and Ecuador, the Anglo-Icelandic “Cod Wars,” the “Squid Wat” of 1986 between the Republic of
China (ROC) and Argentina, and the protracted fisheries disputes between the ROC and the Philippines.

5, HILL, MARITIME STRATEGY FOR MEDIUM POWERS 14 (1986).

6, Id.at 14-17, 20, 30-36, 40-44, 46-48, Hill also quoted Moineville’s version of the definition of medium
powers in his book: “they certainly cannot be prepared for all events but .. . they have . . . enough resources
to have options to choose from. . ..” Id. at 195.

7, BOOTH, supra n, 1 at 24,

8 Id.

9, Id, at 16, 17-24, 120-121, 270-271.

10. HILL, supra n. 5 at 20.

11, BOOTH, supra n. 1 at 18-20, 121.

12, Cited in BOOTH, LAW, FORCE AND DIPLOMACY AT SEA 43 (1985). Texts within single quotes
ate Booth's quotation from O'Connell while texts within double quotes are Booth’s argument.

13. 1d,

14, Id, at 38-40,

15. For example, see Knight, The Law of the Sea and Naval Missions, U.S. Nav. Inst. Proc. 32-39 (June
1977).

16. BOOTH, supra n. 12 esp. chap. 7.

17, 1d, at 139.

18, Id, at 168,

19, Id. at 139.

20, See Hu, supran. 4; and Hu, The Sino-Argentine ‘Squid War’ of 1968: Its Implications for the Fisheries Policy
Making, Marine Policy, 133-142 (April 1987).

21. BOOTH, supra n. 12 at 179.

22, Id, at 190-192,

23, New Realism in Discussions of Seapower, Marine Policy 83 (January 1987).

24, Osgood, Military Implications of the New Ocean Politics, in ALFORD, SEA POWER AND INFLUENCE:
OLD ISSUES AND NEW CHALLENGES, THE ADELPHI LIBRARY 2 at 12-14 (1980).

25, Buzan, A Sea of Troubles: Sources of Dispute in the New Ocean Regine, in ALFORD, supra n. 24 at 160,


Hall 363

means of a preemptive strike on 14 April 1986. As a defensive measure
undertaken without a declaration of war by Congress, the strike against Libya
‘was within the scope of the President’s constitutional war-making authority.

tenant Hall was serving as an air intelligence officer wih Naval Reserve Patrol Wing 0593
when this article was first published.

Notes

1, Such a debate also took place of course, during the Viemam War. See e.g. Van Alstyne, Congress, the
President, and the Power to Declare War: A Requiem for Vietnam, 121 U. Pa. L. Rev. 1 (1972); Berger, War-Making
By The President, 121 U. Pa. L. Rev. 29 (1972); Rehnquist, The Constitutional Issues—Administration Position,
45 N.Y.ULL. Rev. 628 (1970); Note, Congress, the President, and the Power to Commit Forces to Combat, 81 Harv.
L. Rev. 1771 (1968); Moore, Intemational Law and the United States’ Role in Viet Nam: A Reply, 76 Yale L. J.
1051 (1967); Falk, Intemational Law and the United States? Role in the Viet Nam War, 75 Yale L. J. 1122 (1966);
‘Wright, Legal Aspects of the Viet-Nam Situation, 60 Am. J. Int'l L. 750 (1966).

2, Huntington, Coping with the Lippmann Gap, 66 Foreign Affairs 453, 463 (1988).

3, US. CONST., Art. I, Sec. 8, Cl. 11. Seee.g., Chayes, Grenada was Mlegally Invaded, N.Y. Times, Nov.
15, 1983, at 35; Schlesinger, Grenada Again: Living Within the Law, Wall Street Journal, Dec. 14, 1983, at 30.

4. US. CONST., Art. If, Sec. 2, Cl. 1. See e.g. Rostow, Law Is Not a Suicide Pact, N.Y. Times, Nov.
15, 1983, at 35; J. MOORE, LAW AND THE GRENADA MISSION (1984).

5, 50 U.S.C. secs. 1541-1548. See, ¢.g., TURNER, THE WAR POWERS RESOLUTION: ITS IM-
PLEMENTATION IN THEORY AND PRACTICE (1983); Torricelli, The War Powers Resolution After the Libya
Crisis, 7 Pace L. Rev. 647 (1987); Comment, Congressional Control of Presidential War-making under the War
Powers Act: The Status of a Legislative Veto After Chadha, 132 U. Pa. L. Rev. 1217 (1984); Carter, The
Constitutionality of the War Powers Resolution, 70 U. Va. L. Rev. 101 (1984); Note, The Future of the War Powers
Resolution, 36 Stan. L, Rev. 1407 (1984).

6, Harvard Decides Grenada, Wall Street Journal, Nov. 2, 1983, at 30.

7. This sort of confusion has been exhibited by such respected figures as former Secretary of State Cyrus
R. Vance. Vance, Siriking the Balance: Congress and the President Under the War Powers Resolution, 133 U. Pa, L.
Rev. 79 (1984).

8, Sce, e.g., War Without Declaration: A Chronological List of 199 Military Hostilities Abroad Without Declaration
of War, 1798-1972, 199 CONG. REC. 25,066-25,076 (1973).

9. See, e.g., SCHLESINGER, THE IMPERIAL PRESIDENCY (1973). For a vigorous debate on the
question, see CONGRESS, THE PRESIDENT, & FOREIGN POLICY, (ABA Standing Committee on Law and
National Security) (Soper ed. 1984)

10. Commonwealth of Mass. v. Laird, 451 F.2d 26, 34 (1st Cie. 1971); DaCosta v, Laird, 448 F.2d 1368, 1370
(2nd Cir. 1971) (per curiam), cert. denied, 405 U.S. 979 (1972); Orlando v. Laird, 443 F.2d 1039, 1042 (2nd
Cir,), cert, denied, 404 U.S, 869 (1971); Drinan v, Nixon, 364 F, Supp. 854, 862 (D. Mass. 1973).

11. P.L, 88-408, 78 Stat. 384 (August 10, 1964). See generally MOORE, LAW AND THE INDOCHINA
WAR 533-598 (1972).

12, P.L, 98-119, 97 Stat. 805 (October 12, 1983). See also Lebanon Emergency Assistance Act of 1983,
PLL, 98-43, 97 Stat. 214 (June 27, 1983).

13. See generally MOORE, LAW AND THE GRENADA MISSION (1984).

14, For testimony on whether the air strikes were lawful, see WAR POWERS, LIBYA, AND STATE-SPON-
SORED TERRORISM: HEARINGS BEFORE THE SUBCOMMITTEE ON ARMS CONTROL, INTERNA-
TIONAL SECURITY, AND SCIENCE OF THE HOUSE COMMITTEE ON FOREIGN AFFAIRS, 99th Cong.,
2d Sess. (1986).

15, All facts presented are derived from unclassified, public, published sources.

16. NY. Times, Dec. 28, 1985, at 1, col. 5. The airport massacres followed the October 3, 1985 hijacking

of the cruise ship Achille Lauro, during which an American, Leon Klinghoffer, was murdered, the November
23, 1985 hijacking of an Egyptian airliner, during which an American was murdered, and the November 24,
1985 bombing of a Frankfurt, West Germany shopping mall, which injured 23 Americans. LEHMAN,
COMMAND OF THE SEAS 364-367 (1988).
17. N.Y. Times, Jan, 1, 1986, at 1, col. 3.
18, Id, at 4, col. 4 (Text of State Department Repor).



178 Readings on International Law

Classification of Naval Powers

Limits of Measuring Power by Aggregated Physical Resources. Almost a decade ago,
David Baldwin, summarizing a long and rich literature in political science and
international relations, cogently critiqued the measurement of power in terms of
capability inventories. Among military and naval analysts, Robert Art, Ken Booth,
and James Cable have emphasized the necessity of thinking of power in terms of
political and military objectives achieved rather than aggregates of capability.!

Mark Janis provides a good example of this classifying of naval powers/naval
forces in his Sea Power and the Law of the Sea.” Here Janis categorizes all the world’s
navies into five different classes, using data in Jane’s Fighting Ships 1974-1975.
The first class of navies are those of the United States and the Soviet Union, and
the second class includes Great Britain and France. These four navies are
categorized as “major, blue water, SSBN navies.” The remaining navies of the
world are grouped together as “coastal navies,” wherein another three classes are
distinguished. Twenty-one third-class navies are counted, having more than ten
major surface combatants (cruisers, destroyers, and frigates), usually some sub-
marines, and occasionally between 80 and 250 vessels in all. Next are 29
fourth-class navies which have at least one, but no more than ten major surface
combatants, no aircraft carriers, rarely a cruiser, and number about 50 vessels in
all. Seventy-two fifth-class navies have no major surface combatants and rarely
more than a dozen vessels overall?

Janis’ ship-counting scheme offers an interesting picture of the striking
diversity of navies in terms of their physical assets and shows that a majority of
the navies in the world are coastal navies as defined by Janis. It tells us nothing,
however, regarding the actualized power associated with these navies in the
context of international disputes. The implicit analytical weakness of this ap-
proach is evident since the potential power ofa navy does not always correspond
to actual outcomes of disputes involving the application of naval power. For
example, in the major international fisheries disputes involving the use of naval
forces since World War II, those States successfully asserting their maritime rights
and protecting their national fisheries interests were usually those ranked as
“lower-class” navies.*

Rear Admiral J. R. Hill recognizes these problems: “power is a diverse,
sometimes ill-defined, often unquantifiable thing” and “the search for classes or
categories of power is most unlikely to end in a statistical table.”> However, since
it is not entirely illogical to begin with one, Hill goes on to classify states into
superpowers, medium powers, and small powers, using indicators such as
population, gross domestic product, per capita income, exports, men under arms,
armies, major warships, combat aircraft, and defense budgets. Hill then discusses
the components of maritime power, i.e., trade and access, shipbuilding, exploita-
tion of natural resources (fish catch), and military power at sea. He further tries


104 Readings on International Law

would degrade their surveillance capabilities. In practice, it is difficult for
nonspecialists to make evaluations about this problem because of the secrecy of
the subject and hence the impossibility of being able to determine the significance
of seabed sensors in the overall sum of the naval confrontation. To what extent
will the next battle of the Atlantic depend on the information gathered from
seabed listening devices? Specialists are divided about the capabilities of ASW in
the foreseeable future. All one can say with confidence is that technical develop-
ments will lead to steady improvements in whatever capability already exists. But
will countermeasures improve commensurately, or even more quickly? In any
case, the potential value of such devices in the event of war has to be set against
the widespread belief that major war is unlikely. If this is the case, it might be
argued that seabed listening capabilities might be sacrificed for political bargains
in other aspects of the development of the law of the sea.

The question of seabed listening devices raises the issue of the very desirability
of tracking the adversary’s SSBNs. If it is a superpower’s intention to maintain
an invulnerable second-strike capability, then it should be solicitous about its
adversary’s retaliatory force. Attempting to track an adversary’s SSBNs will
decrease his confidence in his second-strike potential, and as such will be
“destabilizing” in the Western theory of mutual deterrence. From this point of
view, strategic ASW is not only costly, but also strategically undesirable. But for
NATO, ASW is not merely a matter of strategic deterrence: it is also concerned
with protecting vital allied SLOCs. Monitoring Soviet submarine activity
through the GIUK gap is at least as important in relation to tactical ASW
(concerned with the potential defense of convoys) as it is with strategic ASW
(concerned with countering the adversary’s nuclear-strike potential).

If pressures mount fora more restrictive regime that will affect seabed listening
devices, we can expect opposition from both superpowers. The United States
will be at the fore because of its reputed advantages in the “state of the art” and
the special interest of NATO in tactical ASW. Nevertheless, some of the
arguments above suggest that restrictions on seabed use could be accepted; this
would obviously be the case if there were to be some technical developments
that decreased the relative significance of seabed sensors. A more restrictive
seabed regime would generally favor NATO because of its possession of the
“waterfront real estate.” As long as the northern members of NATO remain
bound together, seabed military use in critical areas could continue: presumably
even sensitive allies could allow such out-of-sight, out-of-mind activities. A more
restrictive regime would increase the strategic significance of those countries with
the relevant waterfront, Norway, Denmark (Greenland), the U.K., and Iceland.
These countries would become even more important to the United States. In
the case of the smaller countries, the increased significance of their location would
give them increased intra-alliance bargaining power.


Walker 51

accordingly, including “machinery . . . for rapid appreciation of the legal issues
and equally rapid reaction if the theory of self-defense is to be effectively translated
into terms of sea power.”

A Comprehensive Approach to the Law of the Sea and Seapower. Janis’
monograph is an excellent linear study of the relationship of seapower and the
law of the sea, particularly in the situation of peacetime norms. However, a
law-oriented study of the problem would demand a more comprehensive
approach, both as to sources for norms and the theoretical foundations of
international law,

While his fifth chapter does justice to two traditional sources of international
law, treaties and custom, inexplicably he omits reference to general principles of
law recognized by civilized nations, and the subsidiary sources of judicial
decisions and the “teachings of the most highly qualified publicists of the various
nations.” To be sure, these sources may not be as clear-cut or as persuasive as
treaties or custom, but such national court decisions as Pacquet. Habana® or Schooner
Exchange v. McFadden? have had great influence on the development of interna-
tional law.

Similarly, writers such as Hugo Grotius, John Bassett Moore, Myres S.
McDougal, or Grigori Ivanovich Tunkin, are frequently cited. Janis often refers
to these writers, but he does not list them as a source. The perspective of any
author in international law should be considered as well; compare the widely
varying approaches of Professor Ian Brownlie or Lord McNair," representing
the traditional British and European school in style or in thought; the views of
jurists from emerging nations such as Judge Roy,!! who see a larger community
of law and legal institutions; the input of great regional scholars such as Judge
Alvarez and Carlos Calvo,'? who reflect the perspectives of Latin America; the
Soviet approach to international law issues, as, for example, G.I. Tunkin’s
concept of the relationship of law and the Communist revolution;"* or the policy
science approach of Professor Myres S. McDougal. Janis has treated Soviet
perspectives on international law elsewhere, with specific reference to Admiral
Gorshkov’s works,'* but articulation of these perspectives might have explained
the theory behind the pronouncements.

Janis’ monograph relies heavily on conventions among states, the preparatory
work for such treaties, the debates of international organizations and conferences
(which may or may, not be part of the travaux preparatoires—preparatory work,
or “legislative history” as American lawyers would put it—of treaties), and
customary international law. However, nowhere does the author note the
important distinction between treaties among nations and binding as to them and
the important use of families of treaties as general evidence of customary
international law. The great division of authority on the proper use of travaux
preparatoires is not developed. The importance of the Truman Proclamation,


228 Readings on International Law

prevention of EEZ, claims in these areas, thus placing the fisheries resources
therein outside the jurisdiction of both parties.

The map shows that of the Special Areas created, several, designated “Eastern,”
involve Soviet-origin areas and one, designated “Western,” involves an area of
US. origin. It is clear that the transfer of such rights and jurisdiction is complete
for the duration of the agreement. Moreover, in effecting such transfer, neither
side is ceding any part of its EEZ to the other, nor is either side extending its
own EEZ. To emphasize the non-EEZ nature of the Special Areas, each
administering party will be obliged to ensure that its laws, legislation, and charts
distinguish such areas from its EEZ.

Of final note, Article 6 calls for any dispute over interpretation of the
agreement to be resolved by negotiation or other peacefill means agreed between
the parties, This represents a step forward in terms of the willingness of the two
nations to contemplate various means of dispute settlement. In most modern
US.-Soviet agreements—for example, those in the sphere of arms control—dis-~
putes have been confined to bilateral diplomatic channels, usually within a
consultative body established for the specific purpose. The mutual willingness
shown in the boundary agreement to give consideration to the full range of
mechanisms available to deal effectively with disputes (including, at least in
theory, both arbitration and judicial settlement) is a positive development.

‘What happens next? To complete the process, each side must ratify the
agreement through its own constitutional requirements. For the U.S., this will
involve the advice and consent of the Senate;‘” for the U.S.S.R., the Supreme
Soviet must signify its assent. During the interim, however, the agreement will
remain in force provisionally, perhaps for many years, pursuant to the Baker-
Shevardnadze Exchange of Notes. Meanwhile, the world’s longest maritime
boundary can be expected to gain recognition as powerful, practical evidence of
the strengthened stability that results from the positive application of international
law by the U.S. and U.S.S.R. to the solution of mutual problems.

Mr. McNeill held the Charles H. Stockton Chair of Intemational Law at the Naval War College
during the 1990-91 academic year when this article was first published.

Notes

1. Agreement Between the United States of America and the Union of Soviet Socialist Republics on the
Maritime Boundary, with Annex, signed at Washington, June 1, 1990. U.S. Senate, 101st Cong., 2d Sess.,
Treaty Doc. 101-22. Reproduced in LL.M. 942-945 (july 1990), (hereinafter cited as Treaty Doc. 101-22).

2, Exchange of Notes between Soviet Foreign Minister Shevardnadze and Secretary of State Baker dated
June 1, 1990 (unpublished). The agreement has been submitted for advice and consent of the Senate to its
ratification (but see also note 47, below). The Exchange of Notes establishing interim application is consistent
US. practice, e.g., with regard to the maritime boundary agreements with Cuba, signed 16 December (and
subsequent Exchange of Notes, 26 December 1989), and also with Mexico, signed 4 May 1978.

3, See map.


Walker 57

demarcation between coercive and persuasive economic, diplomatic and
ideological strategies would have been helpful. Booth’s chapter on “The Func-
tion of Navies,” with its triangular diagram of navies’ diplomatic, military and
policing roles, is perhaps the best illustration of the use of naval power (a resource)
as a diplomatic or military instrument. His policy objectives of prestige, and
standing demonstrations of naval power in distant waters as part of the manipula-
tion objective, would be seen as ideological strategies by the policy scientist. He
says little about navies’ use in economic strategy, except under the policing policy
objectives of resource enjoyment and contribution to internal development. If
Booth had not limited his work to navies and naval affairs, doubtless he would
have expanded on economic aspects of maritime strategy. His succeeding
chapters develop these strategies and their interrelationships. There is a big
difference, for example, between a persuasive economic strategy founded on
subsidizing the U.S. merchant marine so that it can compete with foreign rivals
and civil penalties, criminal fines and forfeitures, or restrictions on fishing and
importation of illegally caught fish under the Fishery Conservation and Manage-
ment Act of 1976. Outcomes and effects, the results of the interactive process,
are of course dependent on the quality of treatment of the phases that precede
them. Although not articulated as such, Sea Power does recognize that the oceans
decision process has products—e.g., the Fishery Conservation and Management
Act, or the demise of the 3-mile limit—that are the result of this complex
interrelated and interdependent process.

Authority Functions. The policy scientist also perceives the threads of seven
authority functions within the legal process:

intelligence-gathering, the obtaining and supplying of information to the decision
maker; promotion, the recommendations of policy; prescription, the promulgation
of norms—as in legislation; invocation, the provisional application of a prescrip-
tion—as by a grand jury indictment; application, the final application of a
prescription—as by an appellate decision; termination, the ending ofa prescription;
and appraisal, the evaluation of the degree of policy realization achieved.”

The Fishery Conservation and Management Act is an apt illustration. Regional
fishery management councils, established by the Act, must prepare fishery
management plans that must contain descriptive data and may contain catch limits
and permit requirements. This illustrates the intelligence-gathering function. The
promotion function begins when the Secretary of Commerce reviews and
approves the plan, thereby promoting its policies. The prescription function is
completed when the Secretary publishes the plan in the Federal Register, the
official daily gazette of the U.S. Government. Invocation would occur when an
authorized officer issues a citation, arrests anyone, or seizes fishing vessels or fish,
subject to later trial of the case. The application function would occur when the


186 Readings on International Law

occur within a geographically limited and specific area: the 200-mile national
(economic) waters. Thus a small navy can now be defined as:

a navy which is primarily designed, planned, prepared, and constructed to protect and enforce
the national rights, as conferred by the 1982 United Nations Law of the Sea Convention,
within the 200-mile limit national (economic) waters.

Insofar as a coastal State’s national rights within its 200-mile waters becomes
the baseline for the design, planning, preparation, and construction of its navy,
the notion ofa small navy takes on greater functional specificity. When a coastal
State contemplates a navy that will be obligated not only to fulfill the needs and
requirements of national rights, jurisdiction, and duties of the coastal State within
the 200-mile limits as stipulated by the 1982 LOS Convention, but also to extend
its force beyond the 200-mile limits, then an oceangoing navy is required. The
British Navy is a good example of such an oceangoing navy. It does not have
the capability to deploy its force globally or readily deal with two or more crises
simultaneously, however, it can cope with a single contingency beyond its
200-mile waters. The Anglo-Argentine Falklands war of 1982 best characterizes
the nature and capability of such an oceangoing navy. If, however, a coastal State
intends to deploy its navy globally to protect simultaneously its many global
interests, it asks for a global navy, e.g., the U.S. Navy or the Soviet Navy.

With this functionally oriented definition or classification of navies, navy
planners and governmental policymakers will have a clear picture in mind of
what to look for as guidelines and how to plan a navy their State really needs in
support of their national rights within the 200-mile limits of ocean territory. This
small-navy theory provides naval theorists with a conceptual standard or criterion
to qualify and compare different navies without the confusion and ambiguity that
previously plagued these analyses.

he definition of a small navy has been conceptually derived from the
interrelationship of naval functions and naval powers. The categorization
of naval powers, in turn, has been based upon the physical capacity of navies,
ie., naval reach, a term defined by Rear Admiral J. R. Hill “as the distance from
home bases at which [naval] operations can be carried out.”** Insofar as the scope
and character of naval operations can be defined, combined with the recognition
of naval reach capability, the functions or missions that a navy can contemplate
and fulfill will be clearly specified. One can, thus, apprehend the appropriate
planning and force structure fora navy.”® Moreover, such conceptual clarification
or specification allows for a more objective evaluation of naval power and its
utility. That is, one is no longer constrained by vague notions of power based
upon ship counting or force structure description.
Small navies are, therefore, defined as those navies operating primarily within
a reach of 200-miles, or within national EEZ limits. Accordingly, the functions


Index 591

emplacement/employment of weapons, 299-300
establishment of, 272
freedom of navigation, 208-209
in wartime, 288,
innocent passage, 200
juridical nature between peace and war, 286
law of neutrality, 286
military operations in, 287-288
mine warfare in, 303
NATO barrier to Soviet Northern Fleet, 105
navigation and overflight, 200, 272
overlap of Soviet-U.S., 227
prohibition of ASW, 110-113
resource management, 438-439
restrictions, 77, 105-107
separation from sovereignty of territorial seas, 285,
sovereign rights of, 272
Soviet Union fisheries zone, 220
Exclusive fisheries zones, 34, 86. See also Exclusive Economic Zone.
Expanded territorial seas. See Territorial seas, 12-mile limit.
Extradition practices
altentat clause of customary international law, 379
aut dedere aut punire (extradite or prosecute), 380, 382, 390, 403, 404
Canadian Fugitive Offenders Act, 382
European Convention on Extradition (1957), Article 3, 379
exculpatory exception for political offenses, 379, 380, 390, 404
extraditing terrorists, 378, 379, 382, 390, 403, 404
jurisdiction issues, 392
‘Optional Protocol to the Single Convention on Narcotics (1972), 382
UN. policies, 394
Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons
Including Diplomatic Agents, 403
draft Convention Against Taking of Hostages (1979), 404
Hague Convention, 403
Montreal Convention, 403
U.N. Ad Hoc Committee on Terrorism (1973), 392- 393

F

Falin, Valentin (Soviet Novosti Press Agency), 505
Falklands/Malvinas War. See also Argentina; Great Britain; United States.
anticipatory self-defense, 316
bombardment of Port Stanley, 316
British Rules of Engagement, 319
General Belgrano, sinking of, 315-316
Royal Navy's exclusion zones, 315
US. policy, 26-31
Federal Bureau of Investigation (FBI), domestic counter-terrorism, 417, 418-419,
Feith, Douglas (Department of Defense), 510-511
Feliciano, Dr. F., 370
Finland
as neutral State, 525, 531
spillover of a superpower conflict, 97
‘Treaty of Friendship, Cooperation and Mutual Assistance between Finland and the Soviet Union,
525
“Finlandization,” 108
Fisheries conflicts


Index

Kidnapping. See also Hostage-taking.
of internationally protected persons, 377, 390
of U.S, Congressional representatives, 418
Kimura, Hiroshi, 239
Kissinger, Secretary of State Henry A., 380
Knight, Professor, 59
Koch, Noel (U.S. Department of Defense), 455
Koh, Ambassador T. T. B. (President of UNCLOS III), 288
Kola Sea, 225
Korea, People’s Democratic Republic of (North)
Armistice Agreement (1953), 207
delineation of the EEZ in the Yellow Sea, 202
diplomatic protests of baseline claims, 214
downing of U.S. Navy EC-121, 209
exclusive economic zone, 202
foreign fishing in military boundary zone, 203
historic bay claims, 204-205
improperly drawn baselines, 204, 204-205
military boundary zone, 199, 203, 205-207, 208
political situation in 1990
presumed baselines, 204
prohibition against foreign warships, 206
seizure of USS Pueblo, 22, 36, 81, 206, 209
status of Northwest Islands, 208
uncertainty of territorial sea claims, 205-206
Korea, Republic of (South)
Armistice Agreement (1953), 197, 207
freedom of navigation in western waters, 211
negotiating history of UNCLOS III, 193
opposition to North Korean military boundary zone, 206
status of Northwest Islands, 208
Korean war
American rationale in 1950, 30
helicopter evacuation, 473
Kriegsordnung of Lucerne of 1499, 544
Kriegsordnung of Zurich of 1444, 544
Kurds, Iraqi use of biochemical weapons against, 511
Kurile Islands
1991 Soviet-Japanese bilateral talks, 240
compromise formulae, 239
geography, 231-232
Japanese definition of the North Territories, 232
regional status quo ante, 240
Soviet “sea control zone,” 237
Soviet acknowledgement of territorial dispute, 238-239
Soviet economic pragmatism, 233-235
Sovict-Japanese sovereignty issue, 231-241, 559
strategic importance to Soviet Union, 237-238, 560
‘Yalta Agreement, 233
Kuwait
bombing of U.S. Embassy, 456
invasion by Iraq, 533
party to ENMOD convention, 536
Saudi Arabia-Kuwait Agreement of 7 July 1965, 87
Kwiatkowska, Barbara, 288

601


Robertson 291

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 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 60.54

Although the Partial Test Ban Treaty of 1963,!5? the Seabed Treaty of 1971,1°?
and the Tlatelolco Treaty of 1967'** contain certain restrictions on the emplace-
ment of nuclear weapons and other weapons of mass 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.


Friedlander 379

sanctions against both principals and accomplices are not yet compulsory.'*
Seizure of aircraft has invariably involved both the taking of hostages and the
demand for haven, and escape for the perpetrators inevitably depends upon
political asylum granted by a sympathetic receiving state. Small wonder then that
“[t]he emphasis in anti-terrorism conventions is on extradition, with prosecution
presumably the objective.”!

A complicating factor is the controversial issue of political crimes. Here, too,
auniformly acceptable definition is lacking. © Traditionally, the juridical standard
relating to political crimes has developed out of stare decisis rather than being
determined by statute, especially in common law countries.” The real sig-
nificance of political criminality under customary international law lies in its
exculpatory features vis-a-vis the extradition process. Among Western European
and other civil law countries there has long been a tradition of granting asylum
to political offenders. Beginning with the Belgian law of 1833, followed by the
Franco-Belgian Treaty of the very next year, nonextradition of actors accused
of political crimes became part of customary international law.!® Anglo-
American law, however, has been very restrictive in its protections. With minor
deviations, Great Britain has offered haven only when the act in question has
been an integral part of the revolutionary process. Canada has been far more
rigorous, while the United States has relied solely upon treaties and conventions
to define its role in extradition practice.'? As far as political terrorism is concerned,
the words of Secretary of State William P. Rogers before the U.N. General
Assembly on 25 September 1972, clearly depoliticized terrorist acts:

Political passion, however deeply held, cannot be a justification for criminal
violence against innocent persons . . . [and] must be universally condemned,
whether we consider the cause the terrorists invoke noble or ignoble, legitimate
or illegitimate.”

Despite the general legal tradition that political criminality can constitute an
excusing condition, one type of act has been widely accepted as an international
crime. The so-called attentat clause, criminalizing murderous attacks upon heads
of State or members of their immediate family, was incorporated into customary
international law during the middle of the 19th century.”! This exception to the
exculpatory nature of political crimes received a statutory formalization 100 years
later in Article 3 of the 1957 European Convention on Extradition.” The
protections granted to heads of State were broadened to include diplomats and
other internationally protected persons first on a regional basis by the Organiza-
tion of American States in 1971,° and then globalized by the 1973 U.N.
Convention on Crimes Against Internationally Protected Persons, Including
Diplomatic Agents, which at present is two ratifications shy of entering into
force.”4 On 8 October 1976 the U.S. Congress enacted legislation implementing
the U.N. Convention, proscribing violent attacks, murder, or imprisonment of


Rhys-Jones 569

intermediate systems, including those within the range necessary to place Soviet
targets at risk, is thus clear. The INF Treaty has not eliminated NATO capability
in this area but it has significantly reduced it. In the event of war, the nuclear
powers could find themselves short of options in this key area.

Soviet perceptions are not the only issue. We must be concerned too with
the will of decision makers to implement their threat. This arms reduction
measure has advanced the moment at which National Command Authorities
would have to consider the employment of strategic systems. We are moving
slowly but perceptibly in the direction of self-deterrence.

The Fundamentals of Soviet Military Strategy and Doctrine

The development of military strategy is a dynamic process, and analysts can
point convincingly to a number of phases in the evolution of Soviet strategic
thought as leaders have grappled with the political, economic, and technological
factors of the day. However, at a time when some claim to detect a revolution
in Soviet military strategy, and when speculation about “non-offensive defense”
is rife, it is important to recognize too, the constants of Soviet strategy, that
compendium of doctrine and historical experience that successive generations of
Soviet strategists have carried in their knapsacks.

Perhaps the first point to recall is that Soviet strategists have never lost faith in
the conventional offensive as a means of achieving decisive goals in a theater of
war. While Western thinkers have tended to compartmentalize nuclear and
conventional operations, and have even (for a time) questioned the very utility
of conventional forces in the nuclear age, their Soviet counterparts have never
shared these perspectives. Conventional ground operations and nuclear strikes
were not mutually exclusive, but part of, as Sokolovskii put it, “a single
continuous process of: ‘war.”!° A nuclear strike by the enemy might prove decisive
in its own right; nuclear use on the battlefield would clearly complicate ground
operations; but a fatalistic acceptance of these facts was not enough. The situation
called for solutions. In the European context this meant practical measures both
to isolate the strategic nuclear capability of the United States and to neutralize
theater-deployed nuclear systems.

Development of Soviet strategic nuclear capability would play an important
part in meeting the first of these requirements. Total assurance was in the nature
of things illusory. Nevertheless, survivable strategic forces would remove a U.S.
intervention at the strategic level from the framework of rational policy. In
practical terms, that was all that could be done.

In context of ground operations in a theater of war, the Soviet military
leadership made determined efforts to ensure the survival of conventional forces
on the nuclear battlefield. Additionally, operational doctrine focused on the
exploitation of nuclear firepower by maneuver formations, but these measures


Craig 317

On the afternoon of 1 May, we carried out the first, and almost the last, day
bombardment of Port Stanley airport. A bombing and strafing attack from three
Mirages convinced us all that night bombardments might be a more palatable
and enduring prospect for the future. On that day, and, thereafter, our targets
were clearly delineated and all of the 8,000 shells from HM ships were directed
solely onto military targets with safety zones between them and adjacent civil
areas. The accuracy of our systems allowed us considerable confidence. Indeed,
to my knowledge only two dwellings were damaged by naval gunfire, and then
only in the final stages of the advance upon Stanley. Clearly, if we had been
allowed unrestricted engagements of key military targets, such as radar sites that
had been placed near the population centers, we would have been more effective.
But it was never considered nor could it be. Similarly, the frustration at being
unable to “soften up” the heavy troop concentration at Fox Bay, Goose Green,
and other places, was tempered by a clear awareness of the plight of the adjacent
Falklanders., Nevertheless, we did ensure that the jockeys of the Port Stanley
racecourse were confronted with somewhat uneven going for many months
ahead—the Argentinians having placed considerable military presence on the
racecourse.

On 11 May the Alacrity undertook the first and only complete transit of
Falkland Sound by an HM ship before the landings. We were detached from the
carrier battle group at midday on 10 May and were to reconnoiter the southern
harbors of both East and West Falklands—before attempting overnight, the first
penetration of Falkland Sound. The mission was primarily to counter any
Argentine resupply efforts, but the verified absence of mines would be most
relevant to plans for the forthcoming landing. The ship made the 100-mile transit
to the Falklands silently, at 25 knots, relying upon satellite navigation to skirt just
south of shore radar detection range. Late in the afternoon, our Lynx flew a
two-hour sortie during which the crew reconnoitered the rocky natural harbors
south of the two main islands, whilst the ship continued westward almost to the
longitude of Weddell Island to the extreme west of East Falkland. Both ship and
aircraft were grateful for the thick overcast and the one-half mile visibility in fog
which denied the Argentine Air Force an attack opportunity.

Shortly before midnight, the ship entered the narrow southern strait of
Falkland Sound, still grateful for the cover afforded by continuous rain and a
100-foot cloud base. At this time there was intense speculation as to whether the
Argentines had mined the Sound! Accordingly, we planned our transit at slow
speed, in a totally quiet condition and without benefit of our echo sounder. Our
anxiety at the possibility of mines was matched by uncertainty over Argentine
artillery positions—the narrows of the channel often being little more than two
miles across.

After one hour of transit the Lynx was launched to reconnoiter Fox Bay to
the south and to act as a diversion. Flying conditions were appalling. At 0035 a


Rose 519

proliferation of missiles and B/C weapons increases the chance of miscalculation by either side—and resurrects
the possibility that Israel might take desperate retaliatory measures, such as using shaped nuclear charges to
contaminate or even obliterate key oil fields upon which the wealth, and ultimately the military might, of the
‘Amb bloc depends.

19. Supran, 5 at 82. See also Wohl, Biological Warfare: Advances Breed New Dangers, Defense Science 2002+
at 57 (August 1984), Another indicator of Soviet interest in B/C technology is that in recent years 70 percent
of all Soviet requests for research papers made to American universities, research establishments and libraries
have been on subjects involving chemical and biological engineering, See HEMSLEY, THE SOVIET BIOCHEMI-
CAL THREAT TO NATO 126-127 (1987).

20, The Soviets placeg high priority on targeting an adversary’s command and control apparatus. Although
many of NATO's key C” sites have been hardened to offer some protection against conventional and even
nuclear blasts, they remain relatively vulnerable to attack by B/C agents. As John Hemsley notes, “the problems
associated with air-conditioning, limited capacities of closed-circuit systems, and staff shifts .. . fare] likely to
become more accute with the introduction of ‘novel’ agents during the next decade.” HEMSLEY supra n. 19
at 128-129, Hemsley is particularly concemed that the Soviets seem to be on the threshold of developing a
new series of “penetrant and discipline breaker” agents which, in his judgment, will make “all hardened and
static headquarters’ sites especially vulnerable to CBW.” Id. at 143.

21, Remedy of this deficiency will begin in 1990 when a new U.S. binary chemical bomb, the Bigeye,
‘becomes available.

22, Supra n, 11 at 101.

23, HEMSLEY supra n. 19 at 49.

24, Sce Lescaze, supra n. 7.

25. Thatcher, Disease as an Agent of War, Christian Science Monitor, 15 December 1988, p. B10. It is also
plausible, of course, that Falin’s statement—far from being an unguarded comment—was a deliberate attempt
to plant an idea intended to discourage SDI. Since then, there appear to have been no further open-source
Soviet statements linking SDI and biotechnology. As John Hemsley points out, however, for reasons of
economy “it could well prove that the Soviet Union sees biotechnologically derived ‘designer’ agents as the
logical response to SDI.” HEMSLEY, supra n. 19 at 48,

26. US. Dept. of State, Chemical Warfare in Southeast Asia and Afghanistan, Special Report no. 98
(Washington: March 1982) and U.S. Dept. of State, Chemical Warfare in Southeast Asia and A@hanistan: An
Update, Special Report no. 104, November 1982. The government case was based on multiple information
sources: testimony of victims and defectors, epidemiological data, analysis of medical samples, physical samples
from attack sites, and intelligence data. J

27. For criticism of the reliability of the government's evidence on yellow rain, see Robinson, Chemical
and Biological Warfare: Developments in 1983, in SIPRI, WORLD ARMAMENTS AND DISARMAMENT, SIPRI
YEARBOOK 1983 336-338 (1984); Salaff, Yellow. Time for Re-evaluation, 14, no. 3 Journal of Contem-
porary Asia, (1984), 380-395 and Guyot, Yellow Rain: The Case is Not Proved, The Nation 465-484 (10
November 1984).

For alternative theories which explain yellow rain as a natural phenomenon, see Meselson, The Search for
Yellow Rain, Arms Control Today 31-336 (September 1986); and Ember, Yellow Rain, Chemical and
Engineering News 11 (9 January 1984).

28. Schwartzstein, “Statement,” U.S. Congress, Senate, Committee on Foreign Relations, Subcommittee
on Arms Control, Oceans, International Operations and Environment, Yellow Rain: The Arms Control
Implications, Hearing 109 (1983),

29. Supran, 2 at 159. Seealso U.S. Dept. of State, Chemical Warfare in Southeast Asia and Afghanistan, Special
Report no, 98 (March 1982).

30, HEMSLEY, at 63; also at 23, n. 17, in which Hemsley cites OGARKOV, ISTORIYA UCHIT
BDITELNOSTI (1985) for the proposition that the Soviets consider “modem forms of CBW .. a quantum
leap forward in the method of waging war.”

31, Supra n, 3 at 113-114.

32, Supra n, 2 at 160. See also Wohl n. 19.

33, Supra n, 3 at 98, citing Zilinskas, Managing the International Consequences of Recombinant DNA Research,
(Ph.D. dissertation, Los Angeles: Univ. of Southern California 1981).

34, An interesting feature of biological warfare is the absence of realistic options for counterforce targeting.
Germs and toxins attack people (or livestock, crops, etc.), but not an enemy’s retaliatory capacity, either nuclear
orbiological. By itself, a traceable bioweapons attack is a perilous gambit: It would serve to provoke an adversary
without immediately disarming him. In a struggle between superpowers, the only practical value ofa massive
biological warfare capability is to provide limited insurance for the possible neutralization of one’s nuclear
arsenal. In other words, at the level of strategic interaction among the superpowers, overt biological warfare
serves primarily as a back-up deterrent, and not as a first-strike weapon.





Chapter 28

Terrorism is... ?*

Major William R. Farrell, U.S. Air Force

Terrorism, a term in common use, has little common meaning among its users. Individual
experience, background, prejudice, and intention may flavor any attempt at definition but
efforts toward increased clarity should continue. This article is such an endeavor.

hen one speaks of terrorism it is not always clear just what one has in

mind, The term has no precise and completely accepted definition. Some
countries label those who engage in violent acts against them as “terrorists.”
Freedom fighters rarely label themselves in such a way, but they often claim they
are subjected to governmental terror. “In short, the definition of terrorism seems
to depend on point of view—it is what the ‘bad guys’ do,”!

Terrorism is frequently described as mindless, senseless and irrational violence.
However, none of these terms is appropriate. It is not mindless and there is a
theory of terrorism that frequently works. Terrorism should be viewed as a means
to an end and not an end unto itself. While terrorist activity may appear random,
closer examination reveals that terrorism has objectives. Attacks are often
carefully choreographed at attract news media attention. Hostages serve to
increase the drama, especially if their being killed is a possibility. Terrorism is
aimed at the people watching and, in this sense, “terrorism is theater.”

While the term “terrorism” is often indiscriminately used and is difficult to
use accurately in a strictly legal context, it raises little doubt in the mind of the
man in the street. Though definitional precision is difficult, terrorism is not hard
to describe and, for those who have experienced it, is easy to comprehend.
“Terrorism is thus an easily recognized activity of a bad character, subjectively
determined and shaped by social and political considerations.” The term is in
flux—ike fashion, it is anything we choose it to be. When the question “What
is terrorism?” is raised, there always is present some sort of an answer, though it
is often colored by the purposes of asking it.*

From a “purely physical” perspective, terrorism is not easily isolable from wats,
disasters, and the like. And, when combined with the known subjectivity of those
who seek to attach a definition to it, greatly complicates any attempt to count
and measure terrorist trends.> Early attempts to isolate and deal with terrorism

* Reprinted from the Naval War College Review May-June 1980.


374 Readings on International Law

Notes

1, President Bush cited these as the objectives of the intervention in his speech to the nation at 0740
(Eastern) on 20 December 1989.

2. In 1908, U.S. forces landed in Panama, which had gained independence from Colombia in 1903 with
USS. support, in the first of four landings in that nation in the next decade. (Although not an intervention per
1964, 23 persons were killed and 300 injured during “flag” riots against the U.S, presence. U.S. forces
assigned in Panama were used to quell the nationalist riots.)

3. See Many Goverments Condemn Use of Force in Panama, The Washington Post, 21 December 1989, p.
A34; also see OAS Votes to Censure U.S. for Intervention, The Washington Post, 23 December 1939, p.A.7.

4, U.N, Charter, 59 Stat. 1031; TS 993; 3 Bevans 1153. Signed at San Francisco, 26 June 1945. Entered
into force 24 October 1945. Reprinted in U.S. Department of State Publication 2368, pp. 1-20.

5. Two weeks after the intervention, 69 politicians and political activists, including 1972 Presidential
nominee George McGoverm, took out a full page ad in The New York Times decrying the Panama initiative,
The open letter to the President states: “Your invasion of Panama is illegal . . . a violation of the Constitu-
tion . . . the U.N. Charter, the OAS and Canal Treaties.”

6. Fitemaurice, The Problem of the Authority of Intersational Law and the Problem of Enforcement, 19 Modern
L, Rev. 1 (1956).

7. BROWNLIE, INTERNATIONAL LAW AND THE USE OF FORCE BY STATES 373 (1963).

8. See Conceming United States Diplomatic and Consular Staff in Iran (US. v. Iran), merits, 1980
International Court of Justice (IC), paras. 17, 24, 25, 57, and 91. See also Terry, The Iranian Hostage Crisis:
Intemational Law and U.S. Policy, 32 JAG Journal 94-117 (1982).

9, Moore, Intemational Law and Terrorism, ROA National Security Report 4, no. 10 (October 1986).

10. See Article 0915, U.S, Navy Regulations, 1973.

11. George P. Shultz, quoted in The New York Times, 16 April 1986, p. A8.

12. See ERICKSON, LEGITIMATE USE OF MILITARY FORCE AGAINST STATE SPONSORED INTER-
NATIONAL TERRORISM 138-139 (1989) for a full discussion of each of these principles.

13. See Bunn, Intemational Law and the Use of Force in Peacetime: Do U.S. Ships Have to Take the First Hit?
Naval War College Review 69-80 (May-June 1986).

14. See WHITEMAN, DIGEST OF INTERNATIONAL LAW, V. 12 at 49-50.

15. “Necessity” embodies the concept that the use of military force to protect or defend vital national
interests, U.S. citizens, or U.S, territory from armed attack or the imminent threat of armed attack shall be
resorted to only after all other lesser means have been exhausted. See O’Brien, The Meaning of Military Necessity
iin International Law, 1 World Polity 166 (1966); and Downey, The Law of War and Military Necessity, 47 Am.
Js Ine L, 251 (1953).

16. MCDOUGAL AND FELICIANO, LAW AND MINIMUM WORLD PUBLIC ORDER 242 (1961).

17. See the Security Council’s discussion in 36 U.N. SCOR (2232-2285) mtgs; U.N. Docs. S/PV
2285-2288 (1981).

18. Revised Charter of the Organization of American States, 2 U. 2394; T.LA.S, 2361; 119 U.N.T.S.
3, Amendments, 21 U.S.T. 607; T.LA.S. 6847. Entered into force for the U.S. 13 December 1951.
Amendments entered into force 27 February 1967.

19. Inter-American Treaty of Reciprocal Assistance, 62 Stat. 1681; T.LA.S, 1838; 4 Bevans 559; 21 UNTS
77. Done at Rio de Janeiro 2 September 1947; entered into force 3 December 1948.

20. Panama Canal Treaty, with Annex, Agreed Minute, and related letter, T.I.A.S. 10031. Signed at
‘Washington 7 September 1977; entered into force 1 October 1979, subject to reservation and understandings.

21. ULS. v. Nicaragua, Judgment, International Court of Justice (ICJ) Reporter, 1986; reprinted in 80 Am,
J. Int'l L. 785-807 (1986).

22. Id.

23. Res. XXX of the Ninth International Conference of American States (1953), reprinted in Human
Rights: The Inter-American System, v. 1, pt. 1, Ch. 4, p. 1 (Buergenthal and Norris eds. 1984),

24. U.S. v. Nicaragua, supra n. 21, IC] Reporter, para. 259, at 131.

25. Id.

26. The United States was certainly entitled to make this claim, as a‘party to the Declaration.

27. Supra n. 20,

28. These figures are provided in U.S. Department of State, Bureau of Public Affairs, Current Policy No.
1240, 22 December 1989. .

29. Quoted in The Washington Post, 21 December 1989, p. A35.

30. Id.

31. Secretary Weinberger’s speech was reprinted verbatim in The New York Times, 29 October 1984,
pp. Al, Ad,



Rose 507

level. Precise mapping of such genetic blueprints, whether for human beings or
other organisms, would greatly enhance the reach and sophistication of genetic
engineering. Thus, as science marches on, the potential for controllable biological
warfare will also advance and should not be discarded out of hand as a dead issue.

In practical terms, this means that all dimensions of potential biological
warfare—strategic and tactical, overt and covert—must be monitored with great
care.

Overt Strategic Use of Biological Weapons. The traditional scenario for germ
warfare envisions an attack resulting in massive civilian casualties—devastation.
on a scale similar to the destructive power of nuclear weapons. Biological
weapons have been viewed as inherently strategic in nature, and U.S.
policymakers have assumed that a biological attack on a nuclear-armed nation
could be countered with (and thus deterred by) another available weapon of mass
destruction, i.e., nuclear arms. Therefore, when President Nixon dismantled our
biological warfare program in 1969, he did not worry about the disappearance
of a like-kind retaliatory capacity. Three years later, similar considerations led
the United States to support a sweeping arms control ban on biological weapons,
even though the agreement lacked any procedures for verification. At that time,
overt biological warfare was correctly viewed as a clumsy, indiscriminate weapon,
an all-or-nothing proposition allowing no tactical finesse or useful strategic
advantage.

In part, the rationale of the Nixon era still makes sense. Nuclear deterrence
continues to restrain superpower use of biological agents against another super-
power.”* In the words of a former director of a Defense Department laboratory
responsible for identifying such agents: “one of the most awesome tasks I can
think of [is] coming up with a definitive statement that we’ve been attacked with
a biological weapon, knowing that that statement is probably equivalent to
pushing the [nuclear] button. [The President] could always call the Kremlin and
ask ‘What the hell did you do that for?” My guess is he wouldn’t. He’d tape that
message to the front end of a Minuteman missile.”°>

Embedded in this scenario are the key assumptions that use of a biological
agent would be both traceable and massive enough to qualify as a strategic threat.
In times past, the relatively primitive nature of biological weapons made both
assumptions nearly axiomatic. The new biotechnology complicates this old
equation, however, by opening up novel possibilities for tactical and covert uses
of biological agents.

Overt Tactical Use of Biological Weapons. One potential use of genetic engineer-
ing is the mass production of toxins, which are poisons made by organisms.
Toxins occupy an interesting niche between biological and chemical weapons—
more potent than most man-made poisons, but also more controllable than living




218 Readings on International Law

16. Id., para 2.1, at 2-1, and 1982 LOS Convention, Arts. 29-32, 95, 102, 107, 110, 111(5), 224, 236,
298(1)(b) (military aircraft).

17. USS. Foreign Broadcast Information Service (FBIS), North America and Asia-Pacific and the Development
of the Law of the Sea: The Democratic People's Republic of Korea, “The Report on the Decree of 22 June 1977, on
Establishing Economic Sea Zone,” at 3-4, issued February, 1981.

18. U.S. Dept. of Defense, Assistant Secretary of Defense (International Security Affairs), Maritime Claims
Reference Manual (Washington), v. II, at 2-252 to 253.

19, FBIS, supra n. 2, at 5-6.

20. Park, The 50-Mile Military Boundary Zone of North Korea, Am. J. Int'l L. 72, 867, n. 5 (October 1978).

21. Notice to Mariners 39/86, 27 September 1986, at III-2.32.

22, 1982 LOS Convention, Art. 5, at 3.

23. Id., Art. 7(1), at 4,

24. Id.

25. Notice to Mariners 39/86, at WIl-2.32.

26. 1982 LOS Convention, Art. 10, at 4-5.

27, Id,, Art. 8, at 5.

28. Park, supra n .20 at 867, n. 3.

29. Maritime Claims Reference Manual, at 2-252 and 1982 LOS Convention, Art. 3, at 3. (Provided for a
12-nautical mile territorial sea drawn “in accordance with this convention.”)

30. Id.

31. Park, supra n. 20 at 866,

32. Alexander, Principal Investigator, Navigational Restrictions within the New LOS Context; Geographical
Implications for the United States, C-0276, Offshore Consultants, Inc., Peace Dale, Rhode Island, (1986), at 303.

33. 1982 LOS Convention, Arts. 25(3), 45(2) and 52(2), at 9, 14 and 16-17.

34. Id., Arts. 2(1), 8(1), at 3-4.

35, Patk, supra n. 20 at 867.

36. Id, at 869.

37. Id, at 867.

38. Id. at 873.

39. Id,

40. MIDDLEBROOK, OPERATION CORPORATE: THE STORY OF THE FALKLANDS WAR, 1982
143-145 (1985).

AL. Park, supra n. 20 at 872.

42, Id, at 868.

43. U.S. Dept. of Defense, Report of the Commission on Integrated Long-Term Strategy, Discriminate
Deterrence (Washington: U.S, Govt. Print. Off,, January 1988), at 3.

44, Id, at 9-10.

4S. Park, supra n, 20 at 869.

46. CRIBBET, & JOHNSON, CASES AND MATERIALS ON PROPERTY 136 (1978).

47. 1982 LOS Convention, Art. 19, at 6-7.

48. Park, supra n. 20 at 869, n. 11,

49. Taubman, Moscow Blames U.S, for Incident Benen Warships in Black Sea, The New York Times, (14
February 1988), at I:4-5.

50. Watkins, supra n. 1 at 4,


Bunn 333

invasion as self-defense against an anticipated British attack using Norway as a
base,

Today, the U.N. Charter repeats both Webster’s concern for the “inviolable
character of the territory of independent states” and his acceptance of a right of
self-defense. The Charter calls on all members to settle their disputes by peaceful
means and enjoins them from using “force against the territorial integrity or
political independence of any state.” But it recognizes “the inherent right of
individual or collective self-defense if an armed attack occurs. . . .”>

US. alliances, reflecting this language, typically state that an “armed attack”
against one ally will be considered an attack against all—justifying collective
self-defense. The North Atlantic Treaty so provides. In the Americas, the Rio
Treaty of alliance contains similar language. And the parallel charter of the
Organization of American States contains a rule like that of the United Nations
against intervention “in the internal or external affairs of any state.”*

How does this body of law work in practice? The military enforcement
machinery contemplated by the U.N. Charter to enforce its rule against shooting
first was never created. Agreements allocating armed forces permanently to the
U.N. Security Council could not be negotiated, and the veto has been exercised
repeatedly, first by the Soviet Union and increasingly by the United States. The
Security Council does not provide reliable central authority to enforce the rule
against first use of force. Does this mean the rule has no value?

A system with central law-giving and law-enforcing authority may produce
better compliance with rules than does a decentralized system of sovereign States.
But even with enforcement authority, domestic laws against murder or assault
are often violated, as are family rules against hitting first. Yet we keep them “on
the books.”

So it is with the rules against first use of force. There have been many uses of
force which seem unjustifiable as self-defense in the 40 years since the U.N.
Charter was adopted. But despite this and the lack of reliable central enforcement
authority in the U.N. Security Council, States have not repealed the rule against
first use of force. And they usually attempt to justify their uses of force by claiming
self-defense.

Let us look at a recent application of the rule—the Argentine invasion of the
Falkland-Malvinas Islands in 1982. Argentina was not deterred from invading
the Falklands by the U.N. Charter’s rule against first use of force. It claimed the
islands as its own: How, it argued, could protecting its territory from British
occupation be illegal (even if the British had settled and occupied most of the
Falklands for over a century)?

The mule against first use of force did assist the British in justifying their response
in self-defense. Aware, of course, that no U.N. peace force would come to British
aid, Prime Minister Thatcher said that Britain had “a duty to the whole world
to show that aggression will not succeed,”® a duty to exercise self-defense to


Chapter 7

Regionalism and the Law of the Sea:
The Persian Gulf Perspective*

Charles G. MacDonald

The Persian Gulf presents, in microcosm, the major issues in the international law of the
sea. This paper focuses on the general approaches of two developing States, Iran and Saudi
Arabia, to the changing law of the sea. The relationship between legal development and
regional context is explored with a view to understanding the approaches of Iran and Saudi
Arabia to the law of the sea, their role at the third United Nations Conference on the Law
of the Sea, and the probable direction of future claims.

L= Development: Factual Background. The Persian Gulf is a semi-
enclosed sea situated between the Arabian peninsula and Iran. It is roughly
one-tenth the size of the Gulf of Mexico and is 97 percent bounded by land.!
The Gulf’s only outlet is the Strait of Hormuz, 20.75 miles across at its narrowest.
The Gulf is a relatively shallow basin with an average depth of only 40 meters
and a maximum depth of about 100 meters.” Numerous islands are scattered
throughout the Gulf, but particularly along the Arabian shore. Deeper waters
run along the Iranian coast and off the tip of the Musandam peninsula.

Seven States make up the Gulf littoral, and one insular State, Bahrain, lies
within the Gulf. The coastlines of the Gulf States vary from 635 nautical miles
for Iran and 296 nautical miles for Saudi Arabia to only about 10 nautical miles
for Iraq.

Although eight States have their borders touching the Gulf, legal development
in the Gulf has been based primarily upon the precedents set by the two largest
Gulf States, Iran and Saudi Arabia. The claims and agreements of Iran and Saudi
Arabia have effectively established certain international legal norms that are not
only complied with by other littoral States, but are also reflected in their
respective claims.

National Claims

Territorial Sea Claims. In 1934 Iran defined its initial claim to Persian “territorial
waters.” In its Act of 19 July 1934 relating to the Breadth of the Territorial Waters

* Reprinted from the Naval War College Review September-October 1980.


Robertson 7

To make a loose analogy, treaties (or conventions, or compacts, or international
agreements, by whatever name they are called) are the international counterpart
of national legislation. Unlike national legislation, however, which binds even
those who dissent from it, treaties are only binding on those States which consent
to become parties to them. In this respect they are more like contracts than
statutes, But there are some situations in which they may be regarded as binding
on non-parties. For example, some parts of the United Nations Charter purport
to bind non-parties, and some treaties are declarative of customary international
law. The latter may be looked upon as evidence of the customary law and as
therefore binding on non-parties as well as parties.

In general, however, customary law is created by State practice. To be sure,
many authorities argue that even long-continued and consistent practice does
not alone create customary international law, but that something more is
required: a State’s belief that the practice is obligatory. Nonetheless, a long-con-
tinued practice acquiesced in by other States may create customary international
law irrespective of the intent of States that acquiesce.

Customary international law results from a process in which one State makes
a claim and another State accommodates it; if the process is repeated often
enough, a customary rule is created. That is why, in international practice, we
find frequent resort to “diplomatic protests”; they serve to keep claims by other
States from ripening into legal rights. Paper protests, however, may not be
sufficient to sustain a position in the face of long-continued practice to the
contrary. This is the principle underlying the U.S. Navy’s “Freedom of Naviga-
tion” program, under which the Navy conducts routine air or sea operations
(usually transits) through areas that a foreign State claims as territorial seas or
exclusion zones but are not recognized as such by the United States government.

Since customary international law is “unwritten,” where do we find evidence
of what it is? We look to diplomatic history, to collections of diplomatic
documents, and to writings of scholars on these matters.

The general principles of law recognized by civilized nations are recognized as a
source of international law by the Statute of the International Court of Justice.
The effect of this provision is to allow resort to national legal systems. This device
is necessary because international law is not as complete and well-developed a
body of law as that of most nations; use of these general principles permit the
gaps in the international system to be filled by principles of law that have attained
near universality in national legal systems—such principles as, for example, that
one shall honor his contractual obligations, or that one should compensate for
unjustified injury caused to another. In a recent decision, a United States court
of appeals faced with a decision involving international law looked to the laws
of a number of nations to aid its determination that torture of a citizen by
governmental authorities was contrary to international law.®


86 Readings on International Law

their drawing back from supporting us in Vietnam, which at that time was still
considered possible and desirable. I thought that the consultation provisions of
the SEATO Treaty might apply, but without the text to check and no time to
do the necessary legal research into the negotiating history of the Treaty and the
terms on which it was submitted to our Senate for advice and consent, I could
not be sure of my view of the law.

“Ts it just your guts then, Rubin?”, he asked.

“Yes sir,” I admitted.

“Well, then” he replied (and I will probably always remember his precise
words), “your guts and my guts just disagree on this one.” The serious meeting
ended in laughter.

In retrospect, I don’t know whose guts were closer attuned to political and
legal realities; I think mine were, but that opinion rests on later research and
knowledge of what in fact happened in Vietnam, including our allies’ increasing
mistrust of our military and political judgment there, things that neither of us
could know at the time. It was my impression that the decision then not to mine
Haiphong harbor was made on other bases, possibly wrongly, and I don’t know
what impact advance notice to our allies might have had. McNaughton is,
tragically, dead and cannot give us his version of the anecdote.

The point is the need for some rules of thumb to help guide our guts; to help
focus the issues and give us a handle on the legal and policy implications of
military action. With this in mind, I suggest the following fundamental principles
as possibly useful to naval commanders.

1. Reciprocity. A fandamental rule of the international legal order is the equality
of all States, big and small, before the law. Great strength may give us great
political responsibilities, and possibly even some legal rights and powers not
available to lesser States, but in general, and as a matter of basic principle, rights
we assert for ourselves in the absence of agreement by others are rights that all
other States can assert against us. If an American naval commander insists on
sending a boarding party to a Peruvian gunboat suspected of harboring an
American fugitive, a Peruvian commander (indeed the commander of a legally
equal Ecuadorian vessel) will sooner or later be asserting the same right against
an American naval vessel. To argue then that we have rights against our legally
equal Latin American neighbors that they do not have against us is almost certain
to have major political implications of the utmost gravity. The fact that we are
bigger and stronger than our Latin neighbors will not prevent them from
expropriating American property, or even, as in the case of the Pueblo off North
Korea, seizing an American military vessel. Collective political action through
the Organization of American States might be their non-military response.
Remembering the rule of reciprocity would dampen down the understandable
enthusiasm of an American naval commander unduly intent on accomplishing a
law-enforcement mission.


Wiegley 81

law. The first argument is unpersuasive because there is no reason to suppose
that a demonstration of force by a naval power would deter other coastal States
with ambitions similar to those of the original claimant. After all, no real loss is
involved for the coastal state. As for the second argument, it is an overstatement
of the general proposition that general acceptance of a unilaterai claim may,
overtime, legitimize that claim. International law does not require a display of
force to establish a record for nonacceptance. Diplomatic protests alone can
evidence a nation’s legal position,?” and for that reason official objections should
be used to the maximum extent practicable in lieu of demonstrations of force.

Asa corollary to the rule just stated, a naval power faced with a challenge to
its use of an ocean area should consider the advantages of temporarily yielding
to the challenge. If, for example, a nuclear-powered warship were denied passage
through a particular strait, it might be advisable to take an alternate route or to
delay passage, depending upon cost considerations and mission requirements.
Such an approach would allow time for diplomatic inquiries before national
prestige is put at stake. Ifno accommodation could be reached, it would certainly
not be too late to route the same vessel through the strait at the next opportunity.
Should a confrontation then occur, the strait user would be in a position to show
that it tried to accomplish its objectives without the threat of force. Another
advantage of yielding to the first challenge, if practicable, would be to eliminate
the factual misunderstandings that often lead to, and occur during, incidents at
sea. A diplomatic exchange would frame the legal issues involved, thereby
presenting the effects of world opinion from being diluted by irresoluble factual
disagreements.

Two exceptions to the rule of conflict avoidance should be added here. First,
avoiding a challenge at sea is quite distinct from submitting to some form of
detention or similar loss of authority. Under the latter circumstances, the law
favors an immediate use of force as opposed to a retaliatory strike at some later
time. The seizure of the U.S.S. Pueblo by the Democratic People’s Republic of
Korea in 1968 illustrates the consequences of delay—after the surrender, the
prospect of retaliation by the United States quickly lost its practicality, and
consequently, its legal justification.

A second exception to the rule of conflict avoidance would arise if a coastal
State challenge were related to an immediate geopolitical development. At such
times a temporary acceptance of the restrictive coastal State claim might have
short-term effects of greater importance than the legal issues in dispute. The
advantages of deferring confrontation would then become irrelevant, and the
focus of international attention would then be on the attempted exploitation of
law, not on legal principles.

The problem of avoiding confrontation has yet another dimension, but here
the issue of political allegiance comes into play. A naval power should not
undermine its credibility by showing tolerance for the restrictive claims of




Index

safeguarding neutrality, 524
self-defense. See Self-defense.
‘Sweden, 524, 525-526, 527-530, 531-532
‘Switzerland, 525, 530-531
New Intentational Economic Order (NIEO), 151-152, 163
New world order, 231
Nicaragua
Contra support by U.S., 371
mine-laying by U.S., 371
Nicaragua vs. U.S., 16, 371
Sandanista seizure of Nicaraguan National Palace, 377
U.S, bombardment of, 356
USS, campaign against Augustino Sandino, 473
Nicolson, U.S. Army Major Arthur, 577
Nixon administration
dismantling of U.S. biological warfare program, 507
IncSea Agreement of 1972, 576
Nixon Doctrine on Asian wars, 1969, 555
policy on terrorism, 380-381
relations with Asia, 555
relations with China, 556, 557
relations with Soviet Union, 556
support for ban on biological weapons, 507
withdrawal from Vietnam, 555
Nixon, President Richard M., 21, 557, 576
Noncombatants
prohibitions against using as human shields, 471
protection of medical transportation, 473-474
protections for, 457, 467, 468
Noninternational conflicts. See Law of armed conflict; Liberation movements, national.
Noriega, Manuel, 367, 368, 369, 372, 373
North Atlantic Treaty Organization. See NATO.
North Sea, offshore drilling structures, 435
Norther Territories dispute. See Kurile Islands.
Northern waters
Greenland-Iceland-United Kingdom (GIUK) Gap, 96, 104
sea lines of communication, 96, 104
strategic significance of, 96-97
Norway
geopolitical position, 112
German invasion in WWII, 332-333
Norwegian territorial sea in WWII, 294
reliance on offhore drilling structures, 435
Svalbard and the delimitation of the Barents Sea
99-100
Notice to Mariners, 136, 204
Nuclear deterrence
and biological warfare, 507
Nuclear weapons, 20, 568
dual-capable systems, 568, 572
escalation, 568
INF Treaty
impact on correlation of nuclear forces, 571-572
impact on NATO flexible-response strategy, 567-569
reductions in stockpiles, 465-473, 566-567
linkage between theater and strategic weapons, 568- 569
NATO nuclear-threat credibility, 567, 568
NATO strategy of deterrence, 568

607


224 Readings on International Law

much of the rest of the U.S. continental shelf for up to ten years,” and as a result
it appears inevitable that U.S. oil exploration will become increasingly active in
the North. Yet, as noted above, the Bering Sea is one of the world’s most
productive fishing grounds, attracting commercial salmon, pollock, and crab
fishermen. The fear of environmental damage from oil spills has created concerns
in Alaska and elsewhere in the region that these resources could be seriously
damaged. Indeed, the Interior Department's program for leasing oil and gas tracts
off the Alaskan coast—including outer continental shelf areas of the Navarin
Basin—was enjoined for a time by a federal court on the grounds that the sale
of such leases could result in interference with native Alaskan hunting and fishing
tights. However, the U.S. Supreme Court disagreed with lower federal courts
and in 1987 removed these legal barriers to the sale of leases, deciding that state
protection of such native rights did not apply to the outer continental shelf?

The dramatic development of the international law of the sea during the
post-World War II era has resulted in the establishment of national rights to EEZs
and the continental shelf. The first clear assertion of the principle that the
contiguous continental shelf belongs to the coastal State was made by President
Traman’s Proclamation of 28 September 1945.4 This was followed by a number
of similar claims on the part of many other nations. By 1958, the international
community confirmed, in the Convention on the Continental Shelf, the concept
that coastal states enjoy certain rights over their contiguous shelves.> By 1969,
the International Court of Justice was able to describe these coastal State rights
as “inherent,” in its decision in the North Sea Continental Shelf Cases.”°

The 1982 United Nations Convention on the Law of the Sea also indicates
that the coastal state enjoys sovereign rights over all natural resources of its EEZ,
including sea-bed resources.2” However, the well-known fact that the United
States is not a party to that agreement does not in any way create a difficulty for
the U.S. in asserting rights to its contiguous continental shelf. This is because the
“inherent” rights recognized by the International Court of Justice is part of
customary international law and as such can be claimed by every nation without
regard to the Law of the Sea Convention—which in any case is not yet in force
since it has not yet attracted the number of ratifications required. A second basis
for its shelf claim is available to the United States in that the EEZ is also
understood by the U.S. to be a right recognized under customary international
law. As such, it exists separately and apart from the Law of the Sea Convention
in the same way that the U.S. views many other important provisions of that
convention, such as those relating to navigational matters, the twelve-mile
breadth of the territorial sea, and the right to exploit mineral resources of areas
of the sea bed beyond the limits of national jurisdiction.”

As a result, the U.S. and the U.S.S.R. have now agreed, as between
themselves, that neither will make any claim to the continental shelf in the area
beyond its maritime boundary with the other; that is, each side’s shelf will be


Roach 489

Notes

1, JCS Pub 1, Department of Defense Dictionary of Military and Associated Terms 298 (1979). “Combat
Engagement” is not defined in JCS Pub 1. A most insightful description of ROE and the law in relation to
naval operations appears in the chapter on ROE in O'CONNELL, THE INFLUENCE OF LAW ON SEA
POWER. 169-180 (1975).

2. Eg. JCS Pub 12, Tactical Command and Control Planning Guidance and Procedures for Joint Operations,
Vol. IV, Joint Interface Operational Procedures, Part TV (Air Control/Air Defense Procedures for Joint Services
Operations), Chapter III (Air ROE/Hostile Identification Criteria) (Washington, DC: U.S. Govt. Print. Of,
1981); OPNAVINST 3710.7], Subj: NATOPS General Flight and Operating Instructions, paragraph 436c
(ACM ROE).

3, SECNAVINST 3300.1A, 2 May 1980, Subj: Law of Armed Conflict (Law of Wat) Program to ensure
compliance by the naval establishment.

4, In this connection O'Connell correctly adds that “In the absence of precise thinking and sufficient
theoretical preparation, rules of engagement are unlikely to express sufficiently the detailed controls that
contemporary political constraints and military conduct require.” O'CONNELL, supra n. 1 at 170.

5. U.S. Navy Dept., Law of Naval Warfare NWIP 10-2 (1974), paragraph 613 n.8 (nuclear weapons) and
612 n.7 (chemical weapons); Executive Order 11850 (riot control agents and chemical herbicides).

6. Morse, ASUW: Getting a Run for Our Money, U.S. Nav. Inst. Proc. 100 July 1982): “Commanders
commonly have diverse interpretations of the criteria for conducting offensive or defensive operations.
Although these rules (ROE) will never be comprehensive enough to cover all situations, questions related to
specific points (.e., iffired upon, musta U.S. or allied unit be hit before returning fire? What constitutes hostile
intent? etc.) must be clarified by higher authority prior to any operation in order for surface forces to maintain
a tactical advantage within the ROE.”

7, Lieut. Gen, Philip J. Gast, USAF, Director of Operations of the Joint Staff, and Secretary of Defense
‘Weinberger news conference on 19 August 1981, The New York Times, 20 August 1981, A-8; U.S. Navy
Fighters Shoot Down 2 Libyan jets, The Washington Post, 20 August 1981, A-1; McNeil-Lehrer Report interview
with Deputy Secretary of Defense Carlucci, 19 August 1981; Tillman, Comment and Discussion, U.S. Nav. Inst.
Proc, 87 (August 1982); Neutze, The Gulf of Sidra Incident: A Legal Perspective, U.S. Nav. Inst. Proc. 26, 30
Ganuary 1982).

8 Parker, Thinking Offensively, U.S. Nav. Inst. Proc. 29 (April 1981).

9. U.S. Navy Regulations 1973, Article 0915.

10. The service law of war manuals reflect a diversity of views on whether reprisals may be ordered by a
subordinate commander on his own authority. Compare Air Force Pamphlet 110-31, Intemational Law—The
Conduct of Armed Conflict and Air Operations paragraph 10-7c(8) (1976) and Air Force Pamphlet 110-34,
Commander's Handbook on the Law of Armed Conflict (1980), paragraph 8-4b(2) with NWIP 10-2, paragraph
310b, U.S. Army Field Manual 27-10, The Law of Land Warfare (1956), paragraph 497b, and Department of
the Army Pamphlet 27-161-2, Intemational Law—Volume II 66 (1962).

11. U.S, Navy Regulations 1973, Article 0915; O'CONNELL, ni at 71, 172; Weschler, Rules of
Engagement: (Lecture at the Naval War College, 17 April 1979).

12, O'CONNELL, supra n. 1 at 177.

13. Air Force Pamphlet 110-34, paragraphs 2-5c, 2-6c.

14, 12 WHITEMAN, DIGEST OF INTERNATIONAL LAW 75-76 (1971), quoting BOWETT, SELF
DEFENSE IN INTERNATIONAL LAW 38-41 (1958): SelDefense Actions of Military Forces Distinguished from
“Hot Pursuit,” Contemporary Practice ofthe United States Relating to International Law, 63 Am. J. Int'1L. 122 (1969);
Borck, Hot Pursuit and the Rights of Pursuit, JAG J. 18, 19-20 (March-April 1969).

15. These principles are explained in NWIP 10-2, Section 220.

16. O'CONNELL, supra n. 1 at 177. The distinction between an action and a supplemental measure is this:
an action is a complete military concept for accomplishing a specified purpose. A supplemental measure restraints
or liberates a limited area force capability; it is more restricted in scope and purpose than an action. Many
supplemental measures may be needed to make an action feasible.

17. 1d, at 169.

18. “Vagueness and imprecision in the rules of engagement can only compound the dangers of uncontrolled
escalation.” Id, at 170.

19, Supran. 8 at 26, 29.

20, O'Connell also notes that the study of ROE “still forms an inadequate part of the defense curriculum.”
O'CONNELL, supra n. 1 at 170.

21, O'Connell puts it more eloquently in the context of naval operations: “. .. the suddenness with which
political situations erupt means that naval staffS may not have the luxury of time to formulate a reasoned set of



Chapter 2

Misconceptions of Law and
Misguided Policy*

Alfred P. Rubin

I. Misconceptions of Law and Their Policy Effects

hile misconceptions regarding international law are as common as

misconceptions regarding economics or military affairs, there seems to
be a pervasive feeling at policy levels that the misconceptions regarding interna-
tional law are somehow less important. Most international lawyers are familiar
with the bemused greeting at cocktail parties, when a new acquaintance first
hears of their specialty: “International law? There is no such thing, is there?”
One professor, the holder of a famous old Chair at the University of Cambridge
in England, habitually gave the reply: “You are quite right; there is no such thing.
That is why I teach it at Cambridge.”

The implication that what is taught is somehow less important than what is
done in “real life,” and that famous old universities are the home of cranks and
harmless theories, is so patently false that in the cocktail party game of one-up-
manship this answer was always a winner. But in real life the downgrading of
international law as a tool for action is not funny; it costs lives and fortunes.

Two examples may help illustrate the point. On the operational level, the
assumption that NATO bases in Turkey or some expanded staging area on the
Persian Gulf could be used to project American or NATO force into the Persian
Gulf or Iran in an emergency flies in the face of the legal restrictions on our base
rights. It assumes those legal rights could somehow be interpreted loosely by the
United States in a time of tension and that under severe strain the government
of Turkey or the host Emirate in the Gulf area would agree that its interests lies
in supporting the United States or NATO action.

Nothing could be further from the truth. What we interpret loosely, they are
likely to interpret restrictively; what we see as a quick reaction, they will see as
an aggression against Muslim solidarity in an area in which they live and we are
visitors. It is the technical terms of the base rights agreements that must mark the
limit of American power projection possibilities in that area, not great plans laid

* Reprinted from the Naval War College Review November-December 1982.


154 Readings on International Law

Proposed Solution

The problem of marine technology transfer is not the only stumbling block
to universal acceptance of the United Nations Law of the Sea Treaty. Most of
the industrial countries have additional grievances with the deep seabed mining-
Authority system. Negotiations broke down completely between the major
contending blocs at the eleventh and final meeting of the Convention in New
York in March-April 1982 over several other issues, and the gulf between the
countries willing to sign the Treaty and those who refuse seems wide today,?!
“We have been the whipping boys here,” commented Thomas Clingan, the
USS. delegate to the Jamaican signing ceremony.” There are rumblings of
retaliation, protectionism, nationalization of overseas assets, and the like from
disgruntled developing countries. Paul B. Engo of Cameroon said at the
ceremony that the United States “cannot now afford the discomforts of isola-
tion,” and Ambassador Clingan acknowledged that the U.S. position was “bound
to harden North-South feelings.””> Although the problems with the Law of the
Sea Treaty will not be quickly solved, it seems that on the issue of marine
technology transfer at least, there is room for maneuver. The following proposals
are designed only to mention a few ideas that might provide a starting point if
further negotiations are undertaken. The proposals can easily be criticized from
both sides, but some compromise by both the industrial countries and the
developing countries will be necessary if an agreement on international marine
technology transfer is to ever attain global importance and acceptance. As an
opening agenda for discussion, the following points are suggested:

* Continue using the United Nations as a forum for discussion. While
criticized by many in the industrialized countries for its highly politicized
atmosphere, the United Nations still remains the only organization that brings
together delegates from virtually every country in the world in some semblance
of orderly debate on a regular basis. It is clearly the right organization for
establishing a system for marine technology transfer.

* Using a separately established commission of U.N. delegates from key
industrial and developing countries, work toward modifications in procedure or
additional agreements that could make the technology transfer process, as so
outlined in the treaty, acceptable to the industrial countries. Specifically, work
for an agreement on a patent system for marine technology as outlined below.

* Develop a patent system that would apply directly to marine technology
and that would be eligible for transfer under the terms of the Law of the Sea
Treaty. Some period of patent protection could be established. This could be a
fairly short period, something less than the amount of time allowed under most
‘Western patent systems, but still long enough to provide the inventor with an
incentive to develop the technology through some equitable recapture of
investment costs. A period of around 5 years might be acceptable to the


Chapter 23

An Appropriate Use of Force*

James H. Webb, Jr.

he differing responsibilities of civilian and military control have not always
been fully appreciated by those in the operating units who are responsible
for implementing policy. I remember my own frustrations in this regard, and in
fact the problem has timeless dimensions. The Duke of Wellington, while
fighting the French in 1812, wrote the following message to the British Foreign
Office in London:

Gentlemen:

While marching from Portugal to a position which commands the approach to
Madrid and the French forces, my officers have been diligently complying with
your requests which have been sent by His Majesty’s ship from London to Lisbon
and thence by dispatch rider to our headquarters.

‘We have enumerated our saddles, bridles, tents and poles, and all manner of sundry
items for which His Majesty's government holds me accountable. I have dispatched
reports on the character, wit and spleen of every officer. Each item and every
farthing has been accounted for, with two regrettable exceptions for which I beg
your indulgence.

Unfortunately, the sum of one shilling and ninepence remains unaccounted for in
one infantry battalion’s petty cash, and there has been a hideous confusion as to
the number of jars of raspberry jam issued to one cavalry regiment during a
sandstorm in Western Spain. This reprehensible carelessness may be related to the
pressure of circumstance, since we are at war with France, a fact which may come
as a bit ofa surprise to you gentlemen in Whitehall.

This brings me to my present purpose, which is to request elucidation of my
instructions from His Majesty’s government, so that I may better understand why
I am dragging an army over these barren plains. I construe that perforce it must
be one of two alternative duties, as given below, I shall pursue either one with the
best of my ability but I cannot do both:

1) To train an army of uniformed British clerks in Spain for the benefit of the
accountants and copy-boys in London, or, perchance

* Reprinted from the Naval War College Review Winter 1988,


Goldie 389

diffuseness of the institutional treatment of terrorism in the United Nations has
tended to weaken the force of specific proposals to limit let alone eliminate it.

The United Nations General Assembly. In the General Assembly of the
United Nations there is consensus that terrorism cuts against the ideals of justice
and peace. There is also agreement that such a deplorable institution should have
no place in the relations of nations and peoples. But there is no consensus on the
cure, While some hold that terrorism is a crime, in the punishment of which
States should cooperate, others insist that when a terrorist act is committed for
political ends such cooperation is not due. Others, again, insist that terrorism can
only be cured if its underlying causes of misery, frustration, grievance and despair
are themselves eliminated. In addition, different bodies in the United Nations
have offered different prescriptions. For example, the Special Committee on
Principles of International Law Concerning Friendly Relations and Co-opera-
tion proposed, and the General Assembly adopted, the following clauses regard-
ing terrorism in the Resolution on Friendly Relations:

Every State has the duty to refrain from organizing or encouraging the organiza-
tion of irregular forces or armed bands, including mercenaries, for incursion into
the territory of another State.

Every State has the duty to refrain ffom organizing, instigating, assisting or
participating in acts of civil strife or terrorist acts in another State or acquiescing
in organized activities within its territory directed towards the commission of such
acts, when the acts referred to in the present paragraph involve a threat or use of
force....

No State may use or encourage the use of economic, political or any other type
of measures to coerce another State in order to obtain from it the subordination
of the exercise of its sovereign rights and to secure from it advantages of any kind.
Also, no State shall organize, assist, foment, finance, incite or tolerate subversive,
terrorist or armed activities directed towards the violent overthrow of the regime
of another State, or interfere in civil strife in another State.*

Of course, in agreeing to the above paragraphs, members of the General
Assembly implicitly excluded persons or organizations whose activities were, in
those States’ perceptions, more validly characterizable as national liberation
fighters and movements than as terrorists. Indeed, the question who is a terrorist
and who is a resistance fighter provides another basis of disagreement once the
debate moves from the general to the concrete. Despite these reservations in
terms of specific situations, it is clear that a widespread consensus exists, at the
level of generality, that the United Nations stands for a normi asserting that it is
unlawful for States to support terrorist activities that adversely affect other States.

By contrast, the General Assembly’s Resolution on the Definition of Aggres-
sion,® which came up from the Special Committee on the Question of Defining
Aggression—a different body from the General Assembly’s Special Committee


484 Readings on International Law

ROE will impose geographical restraints, such as prohibiting pursuit into the
territory of third (neutral) countries, or even into the territory of the hostile force
(to minimize risk of escalation). There may be exceptions to those restrictions
for situations when the hostile force attacks from either territory, or persists in
committing hostile acts after it has entered the neutral territory and that nation
is unable or unwilling to neutralize the hostile actions of the foreign force. The
tight to pursue in self-defense obviously ceases when the prerequisite for the
exercise of that right disappears, for example, when a hostile ship ceases to
constitute an immediate threat because it can no longer bring its weapon systems
to bear.

Hot Pursuit

Frequently it is stated that pursuit must be continuous and immediate. At sea
those restrictions are not legally required to pursue in self-defense. Rather, the
requirement for continuous and immediate pursuit derives from the LOS right
of “hot pursuit” set forth in article 23 of the 1958 High Seas Convention. The
right of hot pursuit only relates to a coastal State’s attempts to enforce its domestic
laws against foreign ships violating those rules in the coastal State’s internal waters,
territorial sea, and contiguous zone. (The U.S. Coast Guard Peacetime ROE
extends this to fisheries zones and over the continental shelf.)

Hot pursuit may not be commenced on the high seas, yet that is where pursuit
is generally irrelevant in maritime self-defense ROE, and is clearly distinguishable
from self-defense pursuit.'*

ROE as Implementation of the Law of Armed Conflict

All ROE must be consistent with domestic law as well as the law of armed
.conflict, and where used to control the use of armed force, implement the
principles of military necessity, proportionality and humanity.'5

JCS Requirements

Volume 1 of the Joint Strategic Capabilities Plan (SCP) routinely provides
that commanders of unified and specified commands will establish and maintain
ROE in conformity with rules issued by higher authority applicable to their areas
of responsibility. (There are better than a dozen JCS directives that provide the
unified and specified commanders with ROE guidance.) Their ROE are
required to be in accordance with applicable law. Proposed ROE for situations
not covered by existing rules and revisions of existing rules are to be submitted
to the JCS for review and approval. ROE for U.S. maritime forces are to be
consistent with those approved for NATO maritime forces. Whenever possible,


Chapter 9

The Marine Environment and Maritime
Security in Southeast Asia:
Controlling Oil Tanker Traffic in the
Strait of Malacca*

Daniel P. Finn

he Straits of Malacca and Singapore (“Straits of Malacca”) which lie

between the southern Malay Peninsula, Singapore, and the island of
Sumatra, have historically been a major international maritime route between.
the South China Sea and the Indian Ocean.! In the post-World War II period
the Straits have become especially important internationally owing to the passage
of oil tankers from the Gulf States of the Middle East to the rapidly growing
economies of East Asia, especially Japan,” and to naval deployments, including
those of the United States and the Soviet Union, in the Pacific and Indian
Oceans.? Following the “oil shock” of 1973-74, which revealed the extent of
the dependency of the economies of the industrialized democracies on Middle
East Oil, the tanker routes from the Gulf, through the Strait of Hormuz and
around the Horn and Cape of Africa through Southeast Asia—became a focus
of international concern over energy security. Both the growing impatience of
certain coastal States with the pollution caused by passing tankers and their
security concerns with passing warships, as well as the possibility of naval action
involving the tanker routes during times of crisis, posed important questions
about the security of these routes. In Southeast Asia, the concern of the coastal
States of the Straits of Malacca—Indonesia, Malaysia, and Singapore—with
tanker and warship traffic in the Straits threatened, in the early 1970s, to affect
this important maritime route.

The Threat of Jurisdictional Conflict Over Vessel Traffic in the Straits. During
the early 1970s many coastal States formally claimed a 12-nautical mile territorial
sea. As a result of these claims, many important straits traditionally used for
international navigation (‘‘international straits”) would be incorporated within the
territorial seas of their coastal States. Although the United States has historically

* Reprinted from the Naval War College Review November-December 1981.


Chapter 1

Contemporary International Law:
Relevant to Today’s Worid?*

Horace B. Robertson, Jr.

'o introduce the subject of international law to a readership made up in

large part of U.S. armed forces officers, whose education, background, and
training condition them to be skeptics and pragmatists, is a daunting task. I hope,
however, in a brief space to convey at least that there is such a thing as
international law and that it has some relevance not only to the ordering of our
international system of sovereign nations but also to the decisions one may be
called upon to make in positions of responsibility in the United States govern-
ment,

This overview addresses, first, the role of international law in today’s interna-
tional system; second, its nature, origins, sources, and functions; and finally, the
current trends in international law (as I see them) and where they may lead us
during the next few decades.

In the latter section I shall briefly address the role of the United Nations in its
peace-keeping function and the impact it has had on the law relating to the use
of force.

A Few Cautionary Statements

One of the most distinguished American international law scholars of this
century, Judge Richard R. Baxter (who before his untimely death was the
American judge on the International Court of Justice), stated in a talk to the
Naval War College while he was a Professor at Harvard Law School that
“International law suffers both from its friends and enemies. Its enemies include
the geopoliticians, who hear nothing but the surge and crash of great international
forces; the Kennanites, who rebel against a ‘legalistic’ approach to international
affairs; and the specialists in international relations, who, not knowing very much
about the subject, lump international law, as conceived by Hugo Grotius, with
the League of Nations, the United Nations, and the control of the white slave
trade. The similarity between some of the friends of international law and most
of its enemies is that they overstate the pretended case for international law. It is

* Reprinted from the Naval War College Review Summer 1992.


546 Readings on International Law

Art. 60. It is against the usage of modern warfare to resolve, in hatred and revenge,
to give no quarter. No body of troops has the right to declare that it will not give,
and therefore will not expect, quarter; but a commander is permitted to direct his
troops to give no quarter in great straits, when his own salvation makes it impossible
to cumber himself with prisoners.

Art. 61. Troops that give no quarter have no right to kill enemies already disabled
on the ground, or prisoners captured by other troops.

Art. 62. All troops of the enemy known or discovered to give no quarter in general,
or to any portion of the army, receive none.*

Although the code was binding only on United States forces, it set the pattern.
for later international attempts to restrain the violence of warfare. The first of
these international efforts was the Declaration of Petersburg, which did not
directly address the subject of quarter."> The subsequent Brussels Conference of
1874, however, did. In the “Project of an International Declaration Concerning
the Laws and Customs of War,” annexed to the Final Protocol, the following
provisions were included:

Article 12. The laws of war do not recognize in belligerents an unlimited power
in the adoption of means of injuring the enemy.
Asticle 13. According to this principle are especially forbidden:

(c) Murder of an enemy who, having laid down his arms or having no longer
means of defense, has surrendered at discretion;
(@) The declaration that no quarter will be given.”

The Brussels Declaration was not ratified and consequently never entered into
force. However, building on this initiative, the Institute of International Law, a
society composed of a fixed number of international-law experts from different
nations, adopted in 1880 a Manual on the Laws of War on Land (the so-called
“Oxford Manual”), which, although not conceived as a treaty, was offered to
governments “as the basis for national legislation in each State, and in accord
with both the progress of juridical science and the needs of civilized armies.”””
Article 9 thereof declared that it was forbidden to “injure or kill an enemy who
has surrendered at discretion or is disabled, and to declare in advance that quarter
will not be give, even by those who do not ask it for themselves.”

Although not itself a binding instrument, the Oxford Manual substantially
influenced the development of various treaties at the Hague Peace Conferences
of 1899 and 1907. The most important of theses latter instruments, insofar as our
present inquiry is concerned, are Hague Conventions II and IV “Respecting the
Laws and Customs of War on Land.”?® The Conventions contain identical
language (Article 23 in each) pertaining to the giving of quarter: “In addition to
[‘Besides,’ in the 1899 Convention] the prohibitions provided by special Con-
ventions, it is especially forbidden—


Robertson 281

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.®> Asa 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 twelve-mile 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 con-
tained in Part III 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,°6 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;®

2. Straits through which there exists a high seas or EEZ route “of similar
convenience with respect to navigational and hydrographical characteristics;°
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.

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
territorial-sea Part of the Convention.” For the third, the regime is nonsus-
pedable innocent passage.”

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”TM” by ships


396 Readings on International Law

Strongly condemns the terrorist and other unlawful acts perpetrated against the
Permanent Mission of the Union of Soviet Socialist Republics to the United
Nations and its personnel as well as those committees against any other missions
to the United Nations as fundamentally incompatible with the status of missions
and their personnel under international law.*

It recommended at its 65th meeting on 9 November 1976, that:

Considering that the security of the missions accredited to the United Nations
and the safety of their personnel are indispensable for their effective functioning,
the Committee noted with satisfaction the assurances given by the competent
authorities of the host country and recognizes the usefulness of the various measures
taken to this end.

The Committee considered with deep concern the serious acts of terrorism and
other criminal acts which had nevertheless been committed against several missions
to the United Nations, their personnel and property, including demonstrations
and picketing accompanied by violence, threats, malicious harassment, attacks and
insults against personnel of those missions.

The Committee condemns terrorist and other criminal acts in relation to any
mission, its personnel and property as being totally incompatible with the status of
missions and their personnel under the norms of international law, especially those
of the Vienna Convention on Diplomatic Relations of 1961.

In this committee the inhibitions and hesitations so apparent in other com-
mittees were not so evident. Condemnations of “terrorism” in the United States
was clearly felt not to need to wait upon the elucidation of causes as was, for
example, the felt need for proceeding further with the far more generally
formulated General Assembly Resolution 32/147 of 16 December 1977.”

The Security Council and Entebbe—Invasion or Rescue? The aerial
hijack that led to Israeli action and that action itself at Entebbe Airport on 4 July
1976 precipitated a meeting of the Security Council. The Security Council held
its first session on 9 July 1976"! on the complaint dated 6 July 1976" of the Prime
Minister of Mauritius on behalf of the Organization of African Unity, Heads of
State and Government who were then present at the Organization’s meeting
then being held in Mauritius. The African complaint stemmed from the unper-
mitted use of force on Ugandan soil-President Amin never having agreed to the
landing of Israeli forces. The subsequent meetings of the Security Council were
inconclusive. Whereas one group of States, including the United States and the
United Kingdom, stressed the need to condemn aerial hijacking, both in general
and specifically with regard to the case before the Council, the Arab and African
States stressed the need to condemn the action of the Israeli forces as contrary to
Article 2 (4) of the United Nations Charter. Each side presented a draft resolu-
tion®® that reflected the aspect of the debate it was stressing. Neither draft
resolution was adopted. No permanent member of the Security Council used its


520 Readings on International Law

35. Supra n. 3 at 129, quoting David Kingsbury when he was director of the Naval Biosciences Laboratory
in Oakland, California in 1984,

36. U.S. Congress, Senate, Committee on Armed Service, Chemical Warfare Review Commission, Staff
Report at 118 (1985).

‘37. Supra n. 11 at 74. The Soviets are also reported to be working on quick-acting diseases, with an
incubation period of a few hours, that could serve 2 tactical function. See Douglass, supra n. 6 at 58; and
DOUGLASS, supra n. 11 at 77.

38, Supra n. 3 at 72.

39, Military planners tend to evaluate biological agents almost exclusively in terms of their threat as
antipersonnel weapons. Just as important, however, is biological warfare’s potential for harming other life. For
example, plants lack an immune system and are therefore especially vulnerable to biological attack. This
susceptibility is magnified by the widespread use of monocultivation, i.e., the planting of genetically identical
strains to boost crop yield, as an agricultural standard in Western countries. Monocultivation provides ideal
targets for biological warfare.

40. Another possible source of a B/C threat inside American borders might be terrorism. Although
terrorists have targeted American citizens and interest throughout the world, thus far relatively litte activity
has been reported within the United States. In addition, up to this time nearly all terrorist groups have relied
on conventional weaponry to carry out their attacks.

Many experts believe terrorists have not yet tumed to B/C weapons because potential drawbacks continue
to outweigh expected benefits. (See Horwitz, Terrorists and Chemical/Biological Weapons, Naval War College
Review 36-40 (May-June 1982); Bremer, High Technology Terrorism, Dept. of State Bulletin 65-67 (July 1988).
The likely gains from a B/C attack resulting in mass casualties would be spectacular visibility and perhaps
short-term bargaining power; the probable disadvantages would include deep public revulsion, a high risk of
alienating key support groups, and an unleashing of extremely vigorous countermeasures. As Dr. Robert
Kupperman, terrorism expert at the Center for Strategic and Intemational Studies in Washington points out,
government pursuit of bioterrorists would probably be relentless: “If terrorists start to use [biologicals], there
isno end to which a nation would go to stop them.” MCDERMOTT, THE KILLING WINDS 254-255 (1987).

To some degree, terrorism is theater—a kind of psychodrama played out on the world stage with real
victims to gain public attention for desperate causes. As Brian Jenkins sees it, “[rlerrorists want a lot of people
watching and lot of people listening, not alot of people dead.” (Norton, Terrorists, Atoms and the Future, Naval
‘War College Review 42 (May-June 1979). Of course, this logic holds only so long as the death of a few
continues to be newsworthy. Some observers worry that after a decade of being exposed to terrorism based
on conventional explosives, people are becoming “desensitized.” (See McGeorge, Reversing the Trend on Terror,
Defense & Foreign Affairs 16 (April 1988). Accordingly, as existing techniques begin to lose their propaganda
punch, the temptation for terrorists to tum to more exotic and deadly means will grow. For this school of
thought, the question is not whether B/C weapons will be used by terrorists, but only when.

‘Whatever their stance on the psychodynamics of terrorism, analysts generally agree on at least one point:
the means to construct chemical or biological weapons are now within the grasp of many nonstate groups and,
as time passes, the killing potential of these means will only expand, As previously discussed, many experts rely
on a benefit-burden analysis to support their conclusion that terrorists are unlikely to resort to B/C agents.
Unavoidably, such an argument pivots around the notion ofa “rational” terrorist. There may be some freedom.
fighters who are not so calculating—those who, in a spasm of retribution, might seek to destroy what they
cannot realistically hope to control. A terrorist group determined to inflict mass casualties (rather than just
engage in theatrics) could well turn to B/C agents. The capability exists already. It seems inevitable that the
international political climate will at some point be ripe to spawn an unholy trinity of bugs, drugs and thugs.

41, John Tower, The Politics of Chemical Deterrence, Washington Quarterly, Spring 1982, p. 36. See also
Hamm, n. 1 at 127-128. In Hamm’s judgment, “NATO has long relied in practice on the threat of nuclear
escalation to deter Moscow from initiating chemical combat, But a nuclear response has always lacked
credibility. . . . It can be all but ruled out that NATO’s political leaders would muster the courage to permit
the use of nuclear weapons to retaliate against chemical attacks or to transfer this decision to their military
commanders in order to make the nuclear response automatic.”

42. Quoted in Tucker, Gene Wars, Forcign Policy 76 (Winter 1984-85).

43. Supran. 3 at 175, quoting Richard Novick, director of the New York Public Health Research Institute,

44. Supra n, 5 at 83. Feith’s conclusions have been widely shared by government and private analysts. In
1986, H. Allen Holmes, an Assistant Secretary of State for Politico-Military Afftirs, opined that “the
Convention, in our judgment, cannot be made effective through amendment or design.” (Cited in Dickson,
Gene Splicing Dominates Review of Weapons Pact, Science 143 (10 October 1986). In 1985 the Defense Science
Board on Chemical Warfare and Biological Defense concluded that “technology has made obsolete much of
the distinctions and language of the BW treaty.” (Dept. of Defense, Biological Defense Program, Report to the
Committee on Appropriations, House of Representatives, May 1986, chap. 1, p. 6.) For the past five years, in
numerous articles and books, Joseph Douglass, J. has been arguing that the Biological Warfare Convention



Chapter 4

Sea Power and the Law of the Sea:
The Need for a Contextual Approach*

George K. Walker

he beginnings of the U.S. Navy’s third century may have signalled a

rethinking of navies’ roles in the international power process and ultimately
in all aspects of international interaction. Ken Booth’s Navies and Foreign Policy
appeared in 1976, following D.P. O’Connell’s Influence of Law on Sea Power
(1975), Edward Luttwak’s Political Uses of Sea Power (1974) and James Cable’s
Gunboat Diplomacy (1971). And, for the Soviets, Adm. S.G. Gorshkov has
produced his “summa of naval power,” Sea Power and the State, said to be “dense,
rich, logical and almost overpowering in breadth.”!

The latest American study on the relationship of military power at sea to
international law as the flow or process of authoritative and controlling decision
is Mark W. Janis’ Sea Power and the Law of the Sea.” His theme is well stated in
the introduction and his final chapter:

The law of the sea is the creature of international order, reflecting patterns of
compromise and consensus, insofar as they exist, among the competing and
complementary interests of states. Since security interests are vital to every country,
it is only reasonable to expect that States will consider sea power when devising
ocean policy. It would be remarkable if a workable legal order for the oceans did
not accommodate national naval interests.

Sea power influences the development of the law of the sea not only by imposing
the need to reconcile naval interests in international negotiations, but when naval
force is used to advance national claims to international law of the sea. . . . Navies
often [have] a role in this process of. . . law making. . . .

International society, like any society, needs a more complex legal system when
more actors relate in more ways. The steadily increasing number of ocean users
and uses means that a more detailed ocean law is inevitable. Navies will be
ensnarled in this new complexity. But the new ocean order will not only impede
the accomplishment of some naval missions, it will facilitate others. Remembrance
and reverence of the old ocean order will not be enough. Navies must reexamine
their relationships to the law of the sea and their preferences for legal rules keeping
the emerging ocean order in mind.

* Reprinted from the Naval War College Review Spring 1978.


Boma 203

Military Boundary Zone. Following closely upon the heels of the announcement
to establish the EEZ came the unexpected announcement of a 50-mile wide
“military boundary zone,” which was to take effect simultaneously on 1 August
1977. (See figure 1.) Purportedly to safeguard the newly promulgated EEZ and
to “firmly defend militarily the national interests and sovereignty” of North
Korea, the communique of the Supreme Command of the Korean People’s
Army provided, in relevant part, as follows: “The military boundary is up to 50
miles from the starting line of the territorial waters in the east sea [Sea of Japan]
and to the boundary line of the economic sea zone in the west [Yellow] sea.

NORTH KOREAN MILITARY AND ECONOMIC ZONES
12a" 728"

PRC

42°

aie at

aa bap
—_—
‘MILITARY/ “Py .

P'yEngyang
jeconome|

ae

Northwest Istan

LS Yellow +d, SOUTH | KOREA

Figure +

“In the military boundary (on the sea, in the sea and in the sky) acts of
foreigners, foreign military vessels and foreign military planes are prohibited, and
civilian ships and civilian planes (excluding fishing boats) are allowed to navigate
or fly only with appropriate prior agreement or approval.”

“In the military boundary (on the sea, in the sea and in the sky) civilian vessels
and civilian planes shall not conduct acts for military purposes or acts impinging
upon the economic interests.”!

While a plain reading of the text would appear to exclude fishing boats from
the category of civilian ships which required prior approval for entry, Japanese
officials, during the course of subsequent unofficial fishing negotiations, were
shocked to learn that North Korea actually intended that foreign fishing within
the military zone was “out of the question from the beginning.””°



116 Readings on International Law

important sector of the arms race. Because ofits evident benefits it might lead—it
would be desirable if it did—to a transfer of all nuclear deterrent forces to sea.
What would be lost in terms of the diversity of systems present in the triad concept
would be more than compensated by the increased invulnerability of the
submarine system remaining, and by the release of financial and other assets in
the other services for increasing nonnuclear deterrence, strengthening diplomatic
potential, and applying power in theater roles. In order to overcome the
bureaucratic obstacles to an all-maritime deterrent in the United States, it might
be necessary to create a new and separate strategic deterrent branch of the armed
services.

The advantages of ASWEEZ extend into war. Although the scheme would
entail a degradation of strategic ASW, and therefore some loss in damage
limitation, this marginal loss would be more than compensated by the physical
separation of population centers and retaliatory systems if all the deterrent force
‘was put to sea. Under ASWEEZ, not only would a disabling first-strike attack
on retaliatory systems be less likely (because success would be more difficult),
but in the event of it occurring it would not be an attack against the “homeland”
as such, and therefore it would not be as likely to trigger an act of punishment
against the enemy’s population. In short, ASWEEZ could be the key to opening
anumber of locks which within 20 years could offer more stable deterrence, less
risk of a first-strike strategy, fewer casualties in the event of war, and the release
of greater military (and therefore diplomatic) potential for the more thinkable
contingencies that lie around the corner.

Ken Booth was a Senior Research Fellow at Dolhousie University when he wrote this article.
In 1977 he served as a Research Scholar at the Center for Advanced Research, Naval War College.

Notes

1. See Holst, Prospects for Conflict, Management, and Arms Control in the North Atlantic, in BERTRAM &
HOLST, NEW STRATEGIC FACTORS IN THE NORTH ATLANTIC 120 (1977).

2, For an earlier discussion, see Young, Jurisdiction at Sea, World Today 200 June 1978).

3. Buzan, A Sea of Troubles? Sources of Dispute in the New Ocean Regime, no. 143 Adelphi Papers, at 45-48
(London: Intemational Institute for Strategic Studies, Spring 1978).

4, Td, at 20-24.

5. O'Connell, Resource Exploitation, the Law of the Sea and Security Implications, in supra n. 1.

6. A speculative discussion of this system in Friedman, SOSUS and U.S. ASW Tactic, U.S. Nav. Inst.
Proc. 120-123 (March 1980).

7. Under the Eastern Canadian Traffic Regulations System (ECAREG) all ships over 500 g.r.t. entering
the ECAREG traffic zone are required to request clearance 24 hours in advance. The stated objective of the
regulations was to reduce the danger of pollution and increase traffic safety. The system may well extend to
200 miles. The system is discussed by Gold and Johnson, Ship-Generated Maritime Pollution: The Creator of
Regulated Navigation, (a paper presented at the 13th Annual Conference of the Law of the Sea Institute, Mexico
City, October 1979).

8, For recent discussions of Soviet naval mission priorities see, among others, GEORGE, PROBLEMS OF
SEA POWER AS WE APPROACH THE TWENTY-FIRST CENTURY at 43-44, 70-79, 83-84, 201-206; (1978);


480 Readings on International Law

Figure 2, another Venn diagram, illustrates that ROE result from a composite
of these four factors. We have four circles centered on different points. They
generally will be of differing diameters, since the relative influence of these four
factors will vary depending on the circumstances. The common intersection of
these four circles represents ROE. ROE then shape the force that may be used
in order to achieve the political purpose and thus form the plane upon which
Clausewitz’s observation (that war is the execution of politics by other means)
is brought into focus.

These Venn diagrams illustrate that ROE restrict military operations far more
than do the requirements of international or domestic law. Indeed, the judge
advocate in reviewing ROE under the law of war (law of armed conflict)

RULES OF
ENGAGEMENT

LAW OF ARMED CONFLICT,

FIGURE. DIPLOMACY
RULES OF ENGAGEMENT.
AND THE LAW OF ARMED CONFLICT

FIGURE 2,

program’ performs a valuable service when he or she recommends that the ROE
not be more restrictive than the law requires unless for clearly articulated
operational, political or diplomatic reasons.

Purposes of ROE

ROE represents the primary means by which the National Command
Authorities (NCA) can, through the JCS, provide guidance to deployed forces
in peacetime for handling crises and in wartime for controlling the fighting. ROE
are one of the most effective tools for implementing strategic decisions made at


Rose 505

likely target cluster would be rear-area chokepoints such as airfields, supply
dumps, headquarters, and port facilities.?° The vulnerability of these sites is
presently amplified by NATO's inability to mount like-kind biochemical strikes
against similarly valuable targets in the rear of the Warsaw Pact.”*

Another Soviet scenario for biochemical use envisions an attempt to impair
NATO's resolve to shift to a wartime posture. “As an opening salvo,” suggests
Joseph Douglass, “the Soviets might well initiate a massive covert C/B war that
could confuse the leadership of the Western alliance and distract their attention
away from even more critical events.””” As Soviet writers have already noted,
governments which are preoccupied with widespread civilian panic on the home
front could suffer a crucial loss of time, will and coordination during the run-up
period before conventional hostilities.”°

On an even grander scale, the U.S.S.R. may view their biochemical capability
as a strategic lever to offset American advances in other technologies. According
to one recent report, there is some official indication that Moscow “might
retaliate against an American Star Wars defense system not with new missiles,
but with germs.” As early as 1987, Valentin Falin, then head of the Soviet
Novosti Press Agency, let slip the following comments about Moscow’s possible
response to SDI: “We won’t copy you anymore, making planes to catch up with
your planes, missiles to catch up with your missiles. We'll take asymmetrical
means with new scientific principles available to us. Genetic engineering could
be a hypothetical example. Things can be done for which neither side could find
defenses or countermeasures. . . . These are not just words. I know what I’m
saying.”>

At the other end of the weapons spectrum, the Soviets have also begun to
tailor biochemical weapons for purely tactical use on a limited scale. Several years
ago the world was caught up ina heated controversy over “yellow rain”—ignited
by U.S. charges that Soviet-supplied forces in Laos and Kampuchea were using
fungal toxins as a weapon against rebellious tribespeople. In 1982 the State
Department issued several reports marshalling the evidence for yellow rain and
estimated that use of this bioweapon in Southeast Asia had already led to 7,500
deaths.?6 Although many reporters and scientists continue to voice skepticism,””
to this day the State Department has not withdrawn or softened its charges. The
yellow rain dispute demonstrates how easily bioweapons can fade into ambiguity.
As Stuart Schwartzstein observed, “there are great advantages in using weapons
that are either very subtle . . . or where verification and identification is so
difficult that arguments continue to rage over whether or not allegations of use
are true,””®

Although the Soviets are also alleged to have used yellow rain during their
occupation of Afghanistan, they seem to have experimented with a new kind of
biochemical agent as well. Reports from the Mujahidin rebels referred to a toxin
spray known as “black rain,” which incapacitated people so quickly that they


100 Readings on International Law

Soviet aggression. Instead, as an outpost of an adversary alliance, it can be
expected that Svalbard will be squeezed occasionally by the Soviet Union, in
order to test Norway’s resolve. In this sense it will play the role of a northern
Berlin. The Soviet Union can hope to engage Norway on a non-NATO basis,
and hope to weaken its ties with the alliance. Thirdly, this means that the allies
should do whatever is possible (which presumably means what Norway thinks
is desirable) to give Norway the confidence to stand up to the Soviet Union,
without actually provoking it. It is important that Soviet policymakers believe
that the NATO allies support Norway’s position.

In the short term, naval developments in northern waters will be shaped more
importantly and more directly by political, economic, and technical develop-
ments unrelated to changes in the law of the sea, These developments will
primarily affect northern waters as an arena of conflict. The changes that will
emerge, clearly or messily, fom UNCLOS III will primarily affect northern
‘waters as a source of conflict, to the extent that they exacerbate political relations
between the NATO allies and provide an occasion for disputes between the
Soviet Union and Norway.

Long-Term Implications: Living with Creeping Jurisdiction. The long-
term military implications of the changing law of the sea arise from the
possibility—perhaps the likelihood—that some aspects of UNCLOS III will not
have a long lifetime. The law of the sea has fluctuated in the past, and will
undoubtedly continue to do so in the future. One cannot predict how long it
may take before changing norms will threaten the rules to be established in
UNCLOS III, but it is well to remember that UNCLOS I (1958) started to be
superseded within 10 years, and its provisions will formally be changed after 23
years. Who expected the rapid reversal of policy by the traditional maritime
powers on a 200-mile EEZ? Who would have thought an International Seabed
Authority probable 10 years ago, or the relatively easy codification of the 12-mile
territorial sea? Conservative expectations about the future might be just as fragile
as were these ideas in the recent past. In international politics, norms invariably
outrun the law.

Norms will change, and will bring about changes in the law of the sea. For
the present discussion the most important feature of change is the phenomenon
of “creeping jurisdiction” (over and under the ocean, in straits, coastal zones, the
seabed, and what was formerly the high seas). Creeping jurisdiction is of evident
concern for those governments wishing to operate warships and carry out other
military tasks under and over the sea. It threatens the mobility of warships, and
hence their military essence. The doctrine of the “common heritage of mankind”
has already been described as containing the germ of the progressive neutraliza-
tion of the oceans.> We are a long way from that, but we are also a long way
from that navalist Eden when the seas were free and resources were plentiful, at


246 Readings on International Law

Perhaps the most authoritative statement on the Freedom of Navigation
program was presented by President Ronald Reagan in 1983. In his evaluation
of U.S. maritime policy, President Reagan stated that the “United States will
exercise and assert its navigation and overflight rights and freedoms on a
worldwide basis in a manner that is consistent with the balance of interests
reflected in the [1982 Law of the Sea Convention]. The United States will not,
however, acquiesce in unilateral acts of other States designed to restrict the rights
and freedoms of the international community in navigation and overflight and
other related high seas uses.”®

The influence of international law on U.S. maritime policy was reiterated in
1986 by the Assistant Secretary of State for Oceans and International Environ-
mental and Scientific Affairs, John Negroponte, when he noted that the “exercise
of rights—the freedom to navigate on the world’s oceans—is not meant to be a
provocative act. Rather, in the framework of customary international law, it is
a legitimate, peaceful assertion ofa legal position and nothing more, Ifthe United
States and other maritime states do not assert international rights in the face of
claims by others that do not conform with the present status of the law, they will
be said to acquiesce in those claims to their disadvantage. What is particularly
difficult in this situation is to understand that the more aggressive and un-
reasonable and provocative and threatening a claim may be, the more important
it is to exercise one’s rights in the face of the claim. The world community can’t
allow itselfto be coerced—coerced into lethargy in the protection of the freedom.
of the seas.”

Freedom of Navigation Challenges

The Freedom of Navigation program combines both diplomatic and opera-
tional challenges to objectionable maritime claims. Under the program, the
United States undertakes diplomatic action at several levels to preserve its rights
under international law. It conducts bilateral consultations with many coastal
States, stressing the need for all states to adhere to the rules and practices reflected
in the 1982 United Nations Convention on the Law of the Sea (1982 LOS
Convention). When appropriate, the State Department files a formal diplomatic
protest addressing specific claims.'° Since 1948 the United States has diplomati-
cally protested over 150 excessive claims, including more than 110 since the
FON program began in 1979."

In conjunction with diplomatic action, the Defense Department conducts
operational challenges to objectionable claims. In the State Department view,
operational assertions tangibly manifest U.S. determination not to acquiesce in
excessive maritime demands by other countries. Operational challenges are
conducted under strict regulation; peacetime rules of engagement are applicable
throughout FON operations. In particularly sensitive cases, approval must be


Bunn 337

O'Connell described several circumstances in which political intelligence and
technical sensors give the commander sufficient information to make a deter-
mination of “hostile intent” (i.e., imminent threat of armed attack). Peacetime
ROE tell the commander what to do in such a circumstance to avoid “taking
the first hit.” In the case ofa possible missile attack by a ship or aircraft identified
as a potential adversary by intelligence and local observation, the ROE might
authorize a “hostile” designation in the judgment of the on-scene commander
“when the potential attacker's radar guidance system has ‘locked on’ to target,
supposing that the missile is "beam-riding.’ It has been argued that this is the
moment of ’armed attack’ and the moment when measures of force in self-
defense may be undertaken.’”! Based on this argument, ROE may provide
detailed criteria for an on-scene commander's decision whether an attack on his
unit is so imminent as to justify shooting first in self-defense.

The Law Enforcement Exception to the
Rule Against Shooting First

Navies and coast guards around the world may use force first if necessary for
law enforcement in waters and for crimes over which they have enforcement
jurisdiction. The U.S. Navy is limited by domestic regulations from stopping
vessels and aircraft for law enforcement purposes.” That function is ordinarily
performed by the Coast Guard or other civilian agencies. But when the primary
purpose of the enforcement actions is a military or foreign affairs function, or
when civilian agencies do not have ships or aircraft available to perform the
function, naval commanders may receive orders to do 30.3

A coastal nation in its own internal and territorial waters has sovereign
authority to enforce its own laws against ships of other nations, though there are
exceptions for certain crimes committed on board ships in transit or even in
port.* In “international” waters, that is, beyond its territorial seas (which may
now extend 12 miles from its coast), a nation may enforce its laws against ships
flying its flag> Moreover, against foreign flag ships, it may enforce customs,
fiscal, immigration, sanitary and resource-protection laws out as far as 24 miles
from its coast: if it has claimed a 12-mile territorial sea, it may claim 12 more
miles as a contiguous zone in which it may enforce laws on these subjects.”°
Resource-protection jurisdiction may continue even further to 200 miles from
its coast if it claims an exclusive economic zone of that width.2” Resources
include, of course, fish and minerals. In these two zones (contiguous and
economic) and on the high seas beyond (all referred to as “international” waters
here), a coastal nation may also engage in “hot pursuit” to arrest vessels which
have violated certain of its laws while they were in its internal or territorial waters,
or sometimes even in the contiguous or economic zones.


Robertson 267

boundary of the territorial waters.”?° The causes for this gradual 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-increas-
ing 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.

For whatever reasons (and international-law scholars are not always in agree-
ment 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.** 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 ofa
principle whose underlying theoretical basis was outdated, ® 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.”>>

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.”?! 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,” the International Law Commission’s
Draft Convention on the Law of the Sea, and the 1958 Geneva Convention
on the Territorial Sea and Contiguous Zone.** 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.”*>

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
innocent passage in time of peace.°° Whether innocent passage includes the right


102 Readings on International Law

such rules leniently or to the letter would give straits States important discretion
over the passage of foreign warships. It would thereby enhance the strategic
significance of those countries at the “chokepoints.”

Clearly, a more restrictive regime for the Baltic Straits would affect the Soviet
Navy more than NATO, but a more restrictive Baltic regime is one with which
both superpowers could live. However, their main opposition to such a trend
would be concern about the extension of such principles to straits elsewhere that
are of more importance to their national security.

A major NATO interest in the Baltic is in showing that the sea is not a Soviet
lake. This is thought desirable in order to reassure both allies and neutrals. NATO
forces therefore occasionally exercise in the Baltic, mainly in the southern
portion. In addition, ships are occasionally sent in on a non-NATO basis in order
to demonstrate their right to be there. Soviet and other Warsaw Pact maritime
activity is monitored by aircraft and naval vessels. These activities could still be
maintained under a more restrictive regime but a change would imply, though
not demand, that a greater responsibility for NATO maritime activity should fall
on the shoulders of the local allies, West Germany and Denmark. Accepting such
a burden would be a useful signifier of the international character of alliance
responsibilities.

For the Soviet Union a more restrictive Baltic regime would impede the
activities of the Baltic Fleet, because its major chokepoint would be supervised
by unfriendly (ifnot always uncooperative) States. Despite this disadvantage there
are some countervailing considerations. The Soviet Union might welcome more
restrictions on (nonlittoral) NATO activity in the Baltic. Furthermore, the areas
to which the Baltic gives access can already be served by the Northern Fleet,
which is bigger and more capable. Nor do restrictions on straits necessarily
hamper either the buildup or diplomatic salience of naval forces. The success and
visibility of Soviet naval activity in the Mediterranean since the mid-1960s,
despite the Montreux Convention, is instructive in this respect. Finally, it is
important to note that the Soviet Union, up to the late 1960s, periodically tried
to get the Baltic, along with the Black Sea, declared a regional sea, effectively
closed to nonlittoral States. Strategically the prospect ofa more restrictive regime
for the Baltic would not be unthinkable from the Soviet perspective. In practice,
Soviet opposition to such a development would derive from its concern about
the general principle of passage through straits, rather than this particular case.
Movement toward more restricted naval activity in the Baltic, if it were ever
thought desirable, would have to come from some version of a “sea of peace”
idea, rather than from a change in the law of the sea as such.

Ifa more restrictive regime were put into operation it would entail a variety
of political problems with possible strategic implications. A more restrictive
regime would increase the potentiality for disputes and conflicts between the
straits States and military users; most importantly, this would involve the Soviet


450 Readings on International Law

and Qaddafi have called each other terrorists while denying the applicability of
the term to themselves.

The physical manifestations of an act do not necessarily make it terrorism.
There has been a tendency to label bombings, hijacking, kidnappings and hostage
situations as terrorism just because, “that’s what terrorists do.” But this overlooks
the fact that bank robbers, homesick Cubans looking for a free trip home,
extortionists and other engage in these acts too. The outward manifestations are
not the only gauge of what is and is not a terrorist act. More often it is more the
“why” behind it than the act itself. Having said all this, it may be best to describe
the attributes of terrorism without claiming to define it; the objective being to
achieve comprehension of the phenomenon while allowing policymakers
enough flexibility in developing their responses independent of confines of a
legalistic definition.

Terrorism should be viewed as purposeful activity. It is a conscious policy choice
of one group of people toward another. This activity is designed to create “a
climate of fear which is intense and overriding.” This creation of fear is central
to the activity itself and not incidental. If one were to examine the crimes of rape
or robbery, the use of force to create fear is not the purpose of the act. Monetary
gain or physical domination is primary, the fear is incidental. In terrorism the
fear is the prime purpose of the act. The fear is pervasive and continuing, such
as that experienced by those flying planes in the early 1970s, those living in Belfast,
Ireland, and those Turkish and Israeli diplomatic officials serving abroad, not to
mention our own State Department personnel in certain Middle Eastern nations.

This purposeful fear-generating activity is seeking to resolve some form of
political struggle and arrogate to the terrorist the powers of the State or authority.
A belief in the justification of the end allows the harshest of means and permits
no innocent bystanders. There are really no victims, only those who are with
the terrorist or against him.

While terrorism may appear to be a new activity, it has been going on for
hundreds of years. It can be practiced by groups and governments—domestically
as well as internationally, What makes it appear to be “modern” is more the result
of the tools employed than the act itself. This coupled with the nature of the
target is what should be of concern to governments. This should be viewed as
the real threat and it is to this aspect that we now turn our attention.

Why Governments Must Respond

Terrorism is an affront to society and threatens the very foundation upon
which it rests. Often the targets of terrorist attacks are the institutions and the
personages holding power within a society. The strength of a society and its
government depends in part upon the ability of agencies to provide for the safety
and security of its people. In democratic States there is a need for public support,


Robertson 265

Accordingly, I shall use the terms “belligerent” and “neutral” to describe
respectively those States that are involved in an armed conflict and those that are
not taking part in the armed conflict.

il
A Brief History of the Origins and
Development of “Zones” in the Oceans!!

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, '?

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.'> 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.'4 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.'® A year later, in the Treaty of Tordesillas, Spain
and Portugal confirmed this arrangement, each claiming for itselfa monopoly of
navigation and commerce within its respective sphere. '®

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.”!”

The shrinking of these expansive claims began with the great juridical debates
about mare liberam 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,'® 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 refined in his more
extensive work, The Law of War and Peace,’ 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 Dutch fishermen


Rose 513

biochemical threat is gaining momentum, it seems prudent to begin to shift some
intelligence assets.

The confusion surrounding the yellow rain controversy in Southeast Asia a
few years ago illustrates how ill-prepared this country was to sort out and
substantiate allegations of biochemical warfare. Experts still argue about the
source of yellow rain—whether people were stricken by natural toxins from bee
waste or by a biological weapon in the hands of Soviet allies.

Judging from recent reports, the American intelligence community scored a
notable success this past year in tracing the commercial origins of Libya’s new
chemical plant. One hopes that the current attention paid to biochemical
“economics” is a sign that extra care and resources are also going to be funneled
into biochemical “diagnostics.”

By definition, most covert operations depend on secrecy, or at least plausible
deniability, to be useful. One way to reduce the threat of covert biological warfare
is to increase the counterthreat that clandestine attacks will be exposed and traced
to their origins. Two basic means are available to enhance detection capabilities:
better intelligence gathering with regard to adversary capabilities and intentions;
and a well-funded program of bio-sensing research. Only a small fraction of
DoD’s allotment for military chemistry and biology is spent on coping with the
biological threat; and of the money allocated to biology, only a tiny percentage
goes to advanced bio-sensing and diagnostic research.” This should be remedied
immediately in order to minimize the risk of undetected and undetectable
biological warfare.

* Based on the intelligence yield, intensify biochemical research and develop-
ment programs to explore all options for antidotes and protective vaccines and
to maintain a plausible capability for fashioning a like-kind retaliatory response
if required. There is an urgent need to guard against biotechnological surprise.
According to the authors of the 1988 report on Discriminate Deterrence, “the
Soviets are sure to stay well ahead in their research on chemical and biological
weapons, where they have practically no U.S. competition.”** This gloomy
forecast may overstate the problem a bit, but it does suggest the magnitude of
the gap between Soviet and U.S. programs. In 1988 the United States spent more
to buy a single F-14D fighter than on its entire biological research and defense
program.

In summary, the patchwork approach is a combination of modest but mutually
supporting improvements. The overarching goal is to slow down proliferation
of biochemical agents and discourage their further use, while at the same time
buttressing deterrence and defense. There is no single solution to the menace of
biological and chemical weapons. Export controls, economic sanctions, and
international conventions all play roles in limiting the threat, but the biochemical
maze does not offer an easy exit, either nationally or internationally.


234 Readings on International Law

/)

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‘erry tanee


Index

ruses, use of, See Deception.
‘Tehran Conference on Human Rights, 469
UN. Diplomatic Conference on the Reaffirmation and Development of International
Humanitarian Law Applicable to Armed Conflicts, 468
USS. ratification of, 477
USS. review of, 476-477
unnecessary suffering, 469-470, 471, 472
warfare means and methods, 469-471
weapons, legal and illegal, 471-472, 472
Law of armed conflict at sea, 269, 272, 274-277, 542-543
Law of neutrality. See also Hague XIII.
Exclusive Economic Zones, 286
impact of archipelagic waters, 296
jurisdiction, changes in 278-297
rights and obligations of neutral states, 279-280
seabed, 290-291
surveillance obligations of neutral state, 294
‘waters superjacent to continental shelf, 289-290
Law of the sea. See also U.N. Convention on the Law of the Sea (1982).
definition, 52

603

IncSea Agreement of 1972 (Agreement between the U.S.A. and U.S.S.R. on the Prevention of

Incidents on and over the High Seas), 576-577, 580
innocent passage rights, 578-580
problems of a policy science approach, 53-60
pursuit, 483-484
Law of war. See Law of armed conflict.
League of Nations Convention for the Prevention and Punishment of Terrorism (1937), 402
Lebanon, Beirut bombing, 352, 373, 451, 454, 456
Lehman, Secretary of State John, 353
Lese majeste, 544
Levie, Professor Howard, 298-299, 301
Liberation movements, national
distinguished from terrorism, 380, 389, 395, 401, 404-405, 437, 449
forces not bound by law of armed conflict, 475
‘guerillas, 378, 387
haven States for, 382-383, 395, 404
Puerto Rican Armed Forces of National Liberation (FALN), 407
UN. debate regarding distinction from terrorism, 380, 382-383, 389, 395, 404
Liberators. See Liberation movements, national.
Libya
Abu Nidal, supporting, 352-353
acquisition and development of biochemical weapons, 503
as haven State, 383
chemical plant at Rabta, 514, 515
connection to West Berlin bombing, 354
crisis of 1986, 369-370
denouncement of hijacking, 383
development of biochemical weapons, 502
downing by U.S. fighters (1981), 353
Gulf of Sidra, 204, 336, 353-354
Libyan People’s Bureau, 354
USS Nimitz, response to attack by Libyan aircraft, 482-483
USS. airstrikes (1986), 354
Lieber Code, U.S., 467, 534, 545-546
Lietzau, William K., 280
Lincoln, President Abraham, 357
LOD massacre (1972), 409, 410, 454


Chapter 43

Military-to-Military Arrangements
for the Prevention of U.S.-Russian Conflict*

John H. McNeill

NIMPORTANT ASPECT OF CONFLICT PREVENTION, avoidance, and
resolution in the international security area is illustrated by several military-
to-military arrangements originally worked out between the United States and
the Soviet Union (and now in force with Russia) to deal with disputes of an
operational nature—those which, if not resolved, might lead to actual conflict.
During the late 1960s, a pattern of activities involving the U.S. and Soviet
navies, including their associated aircraft, began to evolve that had a potential for
the use of force. For example, maritime surveillance was often conducted by
each side in a way that the other perceived as provocative harassment. There
were instances of warships of one country maneuvering dangerously close to
those of the other, pointing weapons at the other side’s ships, and interfering
with night vision or operations by shining searchlights upon bridges of vessels or
shooting flares in their direction. Because of the proximity in which American
and Soviet naval units were operating, a series of near and actual collisions
occurred, These incidents in particular heightened the risk of conflict and alerted
the national leaderships in both Washington and Moscow to the potentially
dangerous nature of this problem, whoever had initiated it. Both sides became
sobered to the severity of the situation when on 25 May 1968 a Soviet
Tupolev-16 maritime patrol bomber made a low pass over the carrier USS Essex
in the North Sea and then, turning to make another run, dipped its wing into
the water. The U.S. Navy picked up the remains of the aircrew.

On 10 November 1970, following something of an improvement in Soviet-
American relations (as exhibited by willingness to discuss strategic arms limita-
tions), the Soviets responded to a long-standing U.S. offer to hold talks on the
subject of safety at sea. Commencing a year later, these discussions were the first
direct exchanges between the two sides on naval matters since the end of the

* Reprinted from the Naval War College Review Spring 1994,


Robertson 293

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.

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.'*

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 waters of belligerents,
the territory of belligerents accessible to naval forces, and the air space over such
waters and territories.”

These apparent inconsistencies undoubtedly reflect the fact that the Canadian
Manual is still in draft form and will be addressed in the review process.’

Although the German Manual states that archipelagic waters of the parties to
the conflict are legitimate areas for the performance of acts of naval warfare, !!
its chapter 11 on the law of neutrality refers only to the “territorial waters” of
neutrals.!®? In paragraph 1012 of the preceding chapter on armed conflict at sea,
however, the Manual states that “The rights of coastal and archipelagic states
must .. . be taken into due consideration.” The German Manual, like the
Canadian one, is also in draft form 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’ 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 formerly
high seas are to be removed from the area open to the conduct of naval hostilities


Farrell 419

including the Army, Navy, and Air Force, any statute, rule, or regulation to the
contrary notwithstanding.

In their concern to protect foreign dignitaries and themselves, members of
Congress enacted two laws that provide a basis for overriding the letter and intent
of Posse Comitatus. It is interesting to note that the implications of this were not
completely realized by members of the Executive Committee on Terrorism until
1980, when a legal advisor in the Department of State brought it to their
attention. As one participant at the meeting described the effect on those present,
it was profound.”

While it is not expected that the military would, in fact, be called up without
the President being informed, it is a vastly different situation than the need for
Presidential authority for such action. It is interesting to speculate about the stand
of the Department of Defense in such a situation. Two strong tides would be
drawing on the decision makers: the continuance of the longstanding tradition
of abstaining from civil affairs versus the opportunity to prove successfully (it is
hoped), in the wake of the Iranian mission, that a true counterterror capability
exists within the armed forces.

Military Capabilities. “Garden Plot” provides the basis for planning the use of
military personnel and equipment to respond to terrorist acts. What the plan does
not indicate is the full complement of military capability. This issue of capability,
not only as it pertains to the military, has been the subject of intense discussion.
“Specialists in the field” and “high-ranking officers familiar with the activities”
have repeatedly contended that the U.S. antiterrorist competence is relatively
weak.

In response to questions raised by the Committee on Government Affairs of
the U.S. Senate, Assistant Secretary of Defense for International Security Affairs,
David E. McGiffert, gave testimony relative to United States’ capability for
dealing with terrorists. At these hearings on the Omnibus Antiterrorist Act,
Senator John Glenn asked about United States’ capabilities similar to those
displayed by Israel’s Saiyeret at Entebbe, the West German Grenzschutzgruppe-9
at Mogadishu and the Egyptian commando force at Cyprus. The reply was that,
although never activated as of that time to counter a terrorist threat or act, U.S.
forces consisted of Army, Navy and Air Force units trained in counterterrorism.
Further, the emphasis on training was for employment abroad because use of
Army personnel domestically “would require waiver by the President of the Posse
Comitatus Act.”*> These forces were described as “specially trained military”
which are among the resources of the Department of Defense available as “may
be appropriate in a terrorist situation.”

Such testimony could have been interpreted as the United States having
available a strike force that is comparable to the West German Border Protection


560 Readings on International Law

overlook three straits into the Sea of Okhotsk (or three straits into the Pacific
Ocean, depending on one’s Perspective). Furthermore, the Soviet military
presence north of Japan serves as a constant reminder to Tokyo that in the event
of a major war the Soviets would almost certainly use the islands to launch an
invasion against Japan’s northern island of Hokkaido.!”

It is not likely that the demonstrations of Soviet military strength enumerated
above will decrease in the future. Such uses of seapower are consistent with the
Soviet philosophy that the peacetime role of the Navy is to display the military
might of the Soviet Union and thereby assist in the conduct and support of foreign
policy. Japan, with its dependence on seaborne commerce and its strategic
location, is particularly vulnerable to the peacetime applications of naval force
advocated by the Soviet’s influential Admiral Gorshkov:

Demonstrative actions of the fleet in many cases make it possible to achieve
political goals without resorting to armed conflict by just indicating pressure by
their potential might and the threat of beginning military actions.”

Given the prospect of a growing Soviet presence, the question for Tokyo—
and Washington—is how to deal with the external pressure that is clearly
designed to influence Japan whenever it makes decisions affecting Soviet inter-
ests.

Before discussing the role of the United States, it is important to consider two
options that Japan might pursue if it loses faith in American support: rearmament
and neutrality. The latter option, with certain qualifications, is the more likely
of the two, but neither is so improbable that it can be ignored.

A number of knowledgeable observers have predicted that the rearmament
of Japan would be an inevitable reaction to a decline in U.S. support. Notable
among these observers is Zbigniew Brzezinski, President Carter's national
security advisor, who, writing as an academic in 1972, expressed the view that a
US. policy of isolation would compel Japan to develop its own military might,
including a nuclear capability.'* Other writers have taken a similar position,
including the belief that rearmament would necessarily mean the acquisition of
nuclear weapons by Japan.'> Reasons offered to support predictions of rearma-
ment have included Japan’s need to balance the Soviet threat, a perception by
the Japanese that economic success entitles them to a larger voice in world affairs,
and a growing sense of nationalism and self-confidence in Japan. While such
influences cannot be denied, they are considerably less significant than the factors
militating against rearmament.

Two frequently cited indexes of anti-militarism in Japan are public opinion
polls and the strength of “passivist” political factions. Such statistical indicators,
while they may reflect the national mood at a given time, provide an unreliable
basis for predicting future trends. They are effects rather than causes. It is more


Wachtmeister 531

facilities in Geneva. The superpowers have used Switzerland as one of the main
venues for serious deliberations, be they in their respective embassies and missions
or during walks in the woods in the surrounding mountains. France and Algeria
(just about to be born) met on the Swiss shores of Lake Geneva; and when the
central banks meet on the highest level, they assemble in Basel.

* Who today is not familiar with the increasing role Austria and its capital
Vienna are playing in international affairs? The UN’s center for humanitarian
affairs is based there; OPEC found neutral ground for their deliberations there;
and the Conference on Security and Cooperation in Europe seems to have found
a semipermanent home in the former capital of the Habsburg Empire. Here is
where East and West meet in Europe today; here is where the Mutual and
Balanced Force Reduction talks started, failed and were buried; and here is the
port of entry for those in distress who are permitted to leave the Soviet Union.

« When President Reagan wanted to reinvigorate himself for the challenges
of the summit in Moscow, he stopped over in Helsinki in Finland. When the
United Nations are in need of reliable, neutral and well-trained troops, the
Secretary General rarely fails to call on the Finnish government to send a
contingent. And when the time was ripe for Europe to leave the era of World
War II behind in concerted effort to increase the security of all, it started in the
Finlandia Hall in Helsinki. Who that is suffering from ill treatment, from torture
or harassment, or from the de$pair of not being master of his own fate, does not
see the word Helsinki as a beacon (as in the Helsinki accord or the Helsinki
process)?

* In December 1988, 55,000 Swedes felt that they had received the Nobel
Peace Prize when it was awarded to the United Nations peacekeeping forces.
Swedish troops have participated in almost all of them since the first United
Nations Emergency Forces in Sinai in 1956. When the superpowers want to
receive data on nuclear experiments from independent, reliable and technically
sophisticated sources, they have the Hagfors laboratory in Sweden at their
disposal. And they use it.

* With no stake of their own, except the desire to create peaceful conditions
worldwide as a contribution to their own security, Swedes have often been used
to mediate, sometimes sacrificing their lives. I think of Dag Hammarskjéld, the
Secretary General of the United Nations (whom I had the honor to serve), and
Raoul Wallenberg, who saved ten of thousands of lives in Budapest during the
Jast months of World War II. I recall Folke Bernadotte, who shipped people out
of the concentration camps in Germany in 1945, and who later fell from an
assassin’s bullet in Jerusalem while serving the United Nations. And I remember
Olof Palme, who mediated on behalf of the Secretary General of the United
Nations in the conflict between Iran and Iraq. There are many others.

It has sometimes been said that neutrality is immoral because if you are not
one of us, you are my enemy. I believe that is wrong on two grounds:


viii Contents

CHAPTER 31—OFFSHORE MARITIME TERRORISM:
INTERNATIONAL IMPLICATIONS AND THE
LEGAL RESPONSE
Christopher C. Joyner (Jul-Aug 1983)... ....2.-000- 433

CHAPTER 32—RESPONDING TO TERRORISM:
WHAT, WHY AND WHEN?
William R. Farrell Jan-Feb 1986) . 2... 2... ee eee 449

CHAPTER. 33—AN APPRAISAL OF LAWFUL MILITARY
RESPONSE TO STATE-SPONSORED TERRORISM
James P. Terry (May-Jun 1986) 2.6... eee ee eee 455

PART FIVE—LAW OF WAR ... 1... 12 ee eee ee eee 465

CHAPTER 34—-THE 1977 PROTOCOLS TO THE GENEVA
CONVENTION OF 1949
W. Hays Parks (Fall 1978) 2... 2. ee ee ee ee ee 467

CHAPTER 35—RULES OF ENGAGEMENT
J. Ashley Roach Jan-Feb 1983)... 0.0. - 0 eee eee 479

CHAPTER 36—FALSE COLORS AND DUMMY SHIPS:
THE USE OF RUSE IN NAVAL WARFARE

Mary T. Hall (Summer 1989) . 2... 2 ee ee ee eee 491
CHAPTER 37—THE COMING EXPLOSION OF
SILENT WEAPONS
Stephen Rose (Summer 1989) . 2... 22-2202 eee 501

CHAPTER 38—NEUTRALITY AND INTERNATIONAL ORDER.
Count Wilhelm Wachtmeister (Spring 1990) .......... 523

CHAPTER 39—THE ENVIRONMENT AND THE LAWS
OF WAR: THE IMPACT OF DESERT STORM

James P. Terry (Winter 1992) 2.2... 2... ee ee eee 533
CHAPTER 40—THE OBLIGATION TO ACCEPT SURRENDER.

Horace B. Robertson, Jr. (Spring 1993) ........-04- 541

PART-SIX—OTHER LEGAL ISSUES ......--22-200- 553

CHAPTER 41—REASSESSING THE SECURITY ALLIANCE
BETWEEN THE UNITED STATES AND JAPAN
Roger D. Wiegley (Feb 1979)... ee tee eee eee 555


Wiegley 79

I£ naval powers choose not to submit to compulsory settlement of disputes
involving military activities, they may indeed lose the opportunity to have their
prerogatives recognized by an international tribunal. Consequently there may be
restrictive coastal State claims that are never “adjudicated,” thereby adding an
element of uncertainty to the legality of any response by a naval power. Such
uncertainty is a small problem, however, compared with the risks of third-party
decisions affecting the military capabilities of the superpowers. And, asa practical
matter, legal uncertainty always accompanies conflict, even in the face of relevant
judicial decisions—distinguishing factual situations is the lawyer’s forte. Thus the
naval powers have little to gain, and much to lose, by submitting military activities
to the compulsory settlement of disputes.

Assuming, then, that third-party settlement mechanisms will play a limited
role in disputes involving naval activities, it becomes even more likely that the
use of force will be the means by which competing interests are reconciled. That
is not to say that the naval powers can always be expected to use their fleets in
response to restrictive coastal state claims. To the contrary, the naval powers face
considerable political restraints in their dealings with developing states. For a
powerful nation concerned about its world image, it is not an easy decision to
alter the character of a legal dispute by introducing the realities of comparative
military strength. Opposing legal claims represent a disagreement between two
independent political entities. Opposing force, on the other hand, requires one
party to surrender some of its political autonomy. When a superior force is used
to compel a settlement or capitulation, the dominating party risks the loss of its
credibility unless it is apparent that legal considerations had to be subordinated
to practical necessity. Of course, the nature of the underlying dispute is an
important element in the overall assessment. It would hardly be unlawful to use
measured force to advance a legal position that all nations supported. By contrast,
situations that involve opposing but reasonable legal arguments, or that polarize
large segments of the international community, do not permit any one party to
use force solely on the strength of its legal claims. Under such circumstances force
is justified, it at all, only by reference to factors that nations generally regard as
capable of rendering international law irrelevant. For example, no nation would
consider legal principles binding, or even applicable, if adherence to them meant
sacrificing national security or independence. The same reasoning applies when
immediate political considerations substantially alter the balance of costs and
benefits that have given rise to the abstract legal principles governing the use of
force by one nation against another. It is because of such political considerations
that the judgement of the international community regarding the legitimacy of a
nation’s use of force comprehends more than generally accepted principles of
law,


514 Readings on International Law

Aggressive Defense. A more forceful approach might involve preemptive strikes
to prevent biochemical attacks on the United States or its allies. The controversy
surrounding Libya’s chemical plant at Rabta highlights the pros and cons of such
action.’ International law does not forbid the construction of a chemical
weapons facility. The 1925 Geneva Convention prohibits “use” of chemical
weapons, but not their manufacture or possession. Realistically, the United States
is concerned about Colonel Qadhafi’s track record of extremism which makes
his possession of chemical arms a threat per se.

The saber-rattling of the last days of the Reagan Administration, during which
‘Washington raised the prospect ofa military strike against the Rabta plant, appears
to have had three objectives: to put Qadhafi on final notice; to seize the lead and
perhaps dampen any Israeli enthusiasm for an independent strike; and to impress
on our allies the urgent need for export controls and vigilance to slow down
biochemical proliferation. For now, the prevailing consensus within the U.S.
government seems to be that, absent actual injury to our interests or at least hard
intelligence that injury is imminently threatened, there is no clear legal justifica-
tion for attacking the Libyan plant>

One risk, of course, is that Qadhafi might opt to produce and stockpile large
quantities of “pharmaceuticals” prior to distributing or employing them. Once
such weapons are dispersed, a preemptive strike loses some of its value. This is
especially true if biological agents are involved. In fact, a preemptive strike on a
bioweapons workshop, if it broke open secure containment facilities without
exterminating the pathogens inside, could precipitate, rather than prevent, a
catastrophe.

By its very nature, military preemption is a weapon with limited reload
capacity. Unless a nation cares little about its international reputation, preemptive
attacks are usually reserved for situations posing clear, immediate and substantial
danger. The Libyan plant at Rabta—capable of producing both medicine and
military weapons; legal according to international norms but perceived to be a
grave threat; built with Western connivance in pursuit of short-term profits at
the risk of long-range perils—this one plant symbolizes the confusion and
cross-currents that exacerbate the biochemical problem. Threats ofa preemptive
strike may help to keep Colonel Qadhafi in check, but preemption is obviously
no solution to the larger issues posed by biochemical proliferation.

The Orphan Threat

Even if all the recommended steps were implemented, one more change
would still be necessary. Our country’s biochemical effort needs to become less
an Army program and more of a national one. As the organization most likely
to come face to face with a biochemical threat, the Army has had the lead for
over 50 years. Now that the biochemical problem is snowballing, it is time for


24 Readings on International Law

which the United States had pledged its honor, that contain the translation of
these concepts into binding words is itself monstrous.

These legal and moral conclusions are, of course, reflections of reality more
than the “realism” of those who ignore them. Is there any deterrent in threatening
to destroy a Soviet city whose support of the Soviet leadeiship is unimportant to
that leadership? Is a demonstration of our own disregard of civilian casualties in
the Soviet Union likely to encourage the Russian people to abandon the war
effort and overthrow their government; or will it serve instead to unite them
behind a leadership that purports to protect them from Americans who do not
care about innocent lives?

In fact, each side always regards itself as the defender against foreign aggres-
sions; even the Nazis defined their own role as protecting ethnic Germans from.
various (nonexistent) ethnic threats. The law of war has been consciously
designed to facilitate the return to peace, and by doing so has since at least 18631!
carefully avoided permitting combatants in a “just” cause legal advantages over
combatants in an “unjust” cause. To the extent that spokesmen for various causes
have tried to change this fundamental orientation of the law, they have either
failed, or achieved verbal successes that have disappeared in the heat of later
events. An example of this sort of thing is visible in the routine United Nations
General Assembly condemnations of Israel for actions analogous to those which
Syria takes in Lebanon and others take elsewhere without equivalent condem-
nations. It is noteworthy that the polemics against Israel seem unconvincing,
hysterical, and political rather than legal. The result has not been great pressure
on Israel to mend its ways, but the political insulation of Israel and its disregard
of the criticism. This is not a defeat for the law, but a victory for the law and a
defeat for those who would twist its impartiality to omit momentary political
purposes.

II. The Problem of Bureaucracy and Non-Cures

Once it is conceded that a stronger legal component is needed in defense
policy from operations to the highest planning levels, the problem becomes one
of implementation. The normal bureaucratic answer is simply to appoint a
specialist in the needed specialty, and amend the job descriptions of those above
him in the chain of decision to require them to take account of the new input.
But in bureaucracies the job description does not reflect the expertise of the
job-holder; rather the formal expertise of the job-holder is whatever it says in
his job description. Thus a senior official wishing to avoid the kinds of considera-
tions in policy that an international law expert would bring to his attention need
merely appoint a technician or non-lawyer to the post, or a very junior person
without experience in making his expertise felt in the bureaucratic mix. Thus,
the normal paper solution is no solution. What is needed is a realization on the


410 Readings on International Law

exercise, public powers orto influence the allocation of values by a ruling body. For those who may be interested
in an excellently presented review of definitional efforts in this regard, see the cited study.

26. Supra n. 11 at 9.

27. This was stated by Brian Crozier as part of his testimony before the Senate subcommittee in 1975 and
all indications are that it is equally true today.

28. While a central authority may be missing, there are many indications of cooperation between groupt
and open support from governments who support their objectives. A good example of this is the case of the
Japanese terrorists who carried out the Lod Airport attack. they had received training from Syria and Lebanon,
received money passing through Germany, received their armsin Italy, and carried out their act for the Popular
Front for the Liberation of Palestine.

29, Supra n. 11 at 9. The author makes the following point:

Given the element of governmental patronage that is common to both, the boundary between
transnational and intemational terrorism is often difficult to draw. To the degree that it can be
determined, the key distinction lies in who is calling the shots with respect to a given action or campaign.
Hence, groups can and do drift back and forth across the line. For example, even a one-time “contract
job” undertaken on behalf of a governmental actor by a group that normally acts according to its own
lights qualifies as international terrorism.

30. The person or person against whom the act is directed may be either the primary or instrumental target
as indicated previously.

31. Supra n. 7 at 79. The basis of this definition was taken from Article 1 of the Draft Convention for
Prevention and Punishment of Certain Acts of International Terrorism, submitted by the United States to the
U.N. General Assembly, 26 September 1972. For a complete text see Alexander et al., eds., pp. 113-118. If
we were to concer ourselves with the particular groups, we would seek to examine not only the site of the
act but also such relevant aspects as the nationalities or foreign ties (.e., training, funding, arms) of the group,
sanctuaries, declared ideology and mechanics of the act’s resolution. I am grateful for the assistance of Maj.
Barton S.G. Edsall Ill, U.S. Air Force in “fine tuning” this section of this article. His “systems analysis approach”
to each definitional attempt disclosed many initial weaknesses,

32. Sloan and Keamey, Nont-Teritorial Terrorism: An Empirical Approach to Policy Formulation, I CONFLICT
132 (1978). See also SLOAN, THE ANATOMY OF NON-TERRITORIAL TERRORISM, AN ANALYTICAL
ESSAY (Gaithersburg, Ma.: International Association of Chief of Police, 1978).

33, Jenkins, supra n, 14 at 4. The prolonged situation in Iran can be viewed (based upon available evidence)
as initially beginning as mob action directed against the United States. However, as the incident progressed
and governmental sanction of the activity was given, the act took on the flavor of intemational terrorism. In
this sense the Iranian case can be viewed as evolving into a terrorist act inasmuch as the initial “purposefidlness”
isa matter of speculation.

34, Risks International, Inc., North America at 16-17, 21-22 (August 1979).

35. The New York Times, 15 July 1977, p. 1; 22 July 1977, p. 12.

36. KUPPERMAN, FACING TOMORROW'S TERRORIST INCIDENT TODAY 1 (October 1977).

37, BELL, A TIME OF TERROR 263 (1978).



372 Readings on International Law

violation of the principles set forth in Articles 18 and 20.” The measures addressed
in Article 22 include the right of self-defense under Article 51 of the U.N.
Charter, as well as diplomatic and economic actions, to the extent they are not
considered regional enforcement initiatives pursuant to Article 53 of the U.N.
Charter. Because the U.S. measures in Panama satisfy the self-defense criteria of
the U.N. Charter, they likewise trigger the exception specified in Article 22 of
the OAS Charter.

Another important article within the OAS Charter is relevant to the U.S.
military action. Article 3d provides: “The solidarity of the American States and
the high aims which are sought through it require political organization of those
States on the basis of the effective exercise of representative democracy.” Not
only had General Noriega violated this provision in May 1989 when he had
refused to allow the Endara government to assume power, but the abuses heaped
upon his opponents also violated similar provisions of the 1953 American
Declaration on the Rights and Duties of Man.” While the I.CJ. in the past has
opined (most recently in U.S. v. Nicaragua) that the commitment of States under
Article 3d of the OAS Charter is political, rather than legal in nature,”* the Court
also asserted that there is nothing which precludes a State from assuming a binding
and enforceable international commitment of this kind.2> When Panama com-
mitted itself to the multilateral 1953 Declaration pledging to preserve these rights
for its people, a binding obligation was created which could be enforced by other
States party to the Declaration.”

The Rio Treaty

This multilateral agreement authorizes self-defense measures similar to those
within the OAS Charter and the U.N. Charter. Article 3 provides that the parties
undertake “. . . to assist-in-meeting the attack in the exercise of the inherent
right of individual or collective self-defense recognized by Article 51 of the
Charter of the United Nations.” This provision reinforces the U.S. right in the
U.N. and OAS Charters to take measures in self-defense when the criteria
established for an armed attack is met.

Panama Canal Treaty

The strongest tenet underlying U.S. actions was the bilateral Canal Treaty””
itself. Under Article 4, the United States has not only the right, but the duty to
protect the waterway. The basic U.S. responsibility is to operate and defend the
Panama Canal until its transfer to Panama at the end of this century. Even after
the Noriega regime’s illegal seizure of power, the United States continued to do
what it has done since the entry into force of the treaty in 1979—provide for
the safe and orderly transit of vessels through the canal while assuring increased
Panamanian participation in its management and operation.


144 Readings on International Law

sanitaire as a legal defensive measure). Even so, U.S. arguments indicating our
desire and intention to use a form of cordon sanitaire when necessary would
serve to condition the international community to expect such a move. This
would remove much of the shock and outrage from the reactions of the world
community and make the implementation of a cordon sanitaire by the United
States much less destabilizing politically, both within NATO and throughout the
Third World.

What to Do

There are some actions which can both reduce the military and political risks
associated with cordon sanitaire and enhance its attractiveness to the national
command authorities as a means of protecting our naval striking power from
preemptive attacks. These actions are not risky, not expensive, and should be
begun without delay.

The Joint Chiefs of Staff should:

— Enhance U.S. intelligence capabilities to assess and to report rapidly on
Soviet readiness and possible strike indications.

— Develop clear and logical rules of engagement for the enforcement of a
cordon sanitaire to ensure compliance by Soviet units while using the absolute
minimum force necessary in the process.

— Impress upon the national civilian leaders the seriousness of the threat
posed by Soviet tattletales during crisis situations, and press for the diplomatic
action listed below.

The national civilian leaders should:

— Fully recognize the unacceptable risk embodied in a Soviet tattletale and
the potential benefits of a cordon sanitaire.

— Begin talks with allies and other friendly nations to gain support for the
concept of cordon sanitaire as a legal defensive measure in times of extreme crisis.

— Bring the issue of formal recognition and legalization of cordon sanitaire
before future Law of the Sea Conferences and the United Nations.

— Negotiate bilaterally with the USSR (or within a NATO/Warsaw Pact
framework) for an agreement concerning tattletales and cordon sanitaire.

If these recommendations are implemented, cordon sanitaire could be trans-
formed from an esoteric idea into a truly viable and extremely valuable measure
to reduce significantly the vulnerability of U.S. aircraft carriers to preemptive
attacks. Even if ultimately they proved unsuccessful, the diplomatic initiatives
suggested above would still serve to make cordon sanitaire more politically
attractive. If, during formal negotiations, the United States publicly states its
intention to use cordon sanitaire and specifies clearly and logically why it is
necessary, the Soviet Union and Third World nations would not be surprised by


Booth 111

against the advantage that U.S. ASW forces would no longer be able to search
for Soviet SSBNs in large expanses of ocean.

The potential for U.S. interest in ASWEEZ: If Soviet ASW efforts were
prohibited within 200 miles of the U.S. coast, this would significantly decrease
the threat of Soviet tracking of U.S. SSBNs as they leave their U.S. bases. The
scheme would not inhibit NATO’s tactical ASW efforts, as only the Barents Sea
would be excluded from Western ASW activity. Unlike the last war, this is an
area in which allied convoys are least likely to operate. The scheme would still
allow SSBNs to leave their 200-mile sanctuaries. However, cost, maintainability,
crew comfort, and the maintenance of relative invulnerability would be strong
incentives to restrict patrols to one’s coastal zones, where the adversary’s ASW
threat would be minimal.

From the U.S. point of view the ASWEEZ approach is in line with the
thinking of the advocates of small strategic submarines. The advocates of SUM
(Shallow Underwater Mobiles) favor buying invulnerability by investing in the
missile rather than in the launch vehicle; they argue that a greater number of
smaller, less costly and less sophisticated submarines operating near U.S. coasts
represents a better option, strategically, financially, and environmentally, to
systems such as Trident or the MX. In addition, if it were eventually to lead to
the deployment ofall the deterrent at sea, it would have the considerable benefit
of separating people and the primary targets of a first-strike attack, namely one’s
retaliatory force.

Ascheme to prohibit Soviet strategic ASW off the U.S. coasts might therefore
be welcomed by at least some U.S. strategists on the grounds that it promises a
more secure and less costly means of strategic strike than those presently foreseen.
It might play some part in slowing the arms race (by diminishing the pressure to
improve submarines) and it would also enhance mutual deterrence. Opposition
to ASWEEZ would be minimized because the scheme would not interfere with
the free-ranging assets of existing SSBNs, and it would not interfere with tactical
ASW.

The scheme suggested is a logical extension of, but in important ways different
from, a combination of ideas that have been mooted in the past. In particular, it
is an extension of Michael MccGwire’s proposal for a mutual limitation of SSN
forces together with the transferring of the SLBM inventory from the Trident
SSBN to a “spartan diesel submarine force” operating in coastal waters.
MccGwire’s scheme was offered in the interests of slowing down the arms race
and stabilizing mutual deterrence.'* ASWEEZ overcomes some of the difficulties
of the MccGwire scheme, but has problems of its own. The main difference
between the two schemes is simple: whereas MccGwire’s scheme concentrates
on keeping SSBNs operationally tethered to home waters, ASWEEZ con-
centrates on keeping adversary ASW efforts out of those waters. As a result, in
the MccGwire scheme, distant-water strategic ASW is supposed to wither away;


268 Readings on International Law

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.?”

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.?® 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.” Russia, France, Belgium, Italy, and Spain had similar laws extending to
varying distances beyond three miles, as did the Scandinavian States.” Several
South American States adopted zones extending to twelve nautical miles for fiscal,
revenue, and security purposes.*! 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.’? 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
international 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.

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,* such a right was not recognized in customary
international law,” 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.”**

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
tights 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 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


86 Readings on International Law

and Zone of Supervision, Iran claimed territorial waters extending to 6 miles and
claimed that its islands also had 6-mile territorial waters. Iran implicitly used
straight baselines in that islands forming an archipelago were deemed to form a
single island.

Saudi Arabia, in its Decree No. 6/4/5/3711 defining the Territorial Waters
of the Kingdom, 28 May 1949,° also claimed 6-mile territorial waters, specifically
its coastal sea, as extending 6 miles from its coast. Saudi Arabia also claimed the
use of straight baselines for areas having ofShore islands and recognized the right
of innocent passage.

Saudi Arabia redefined its territorial waters in its Decree No. 33 of 16 February
1958.” It replaced the broader term “territorial waters” with the term “territorial
sea,” and expanded its claim to 12 miles. It also dropped its specific reference to
“innocent passage.”

Tran followed the Saudi example and claimed a 12-mile territorial sea in its
Act of 12 April 1959, amending the 1934 Act relating to the Breadth of the
Territorial Sea and Contiguous Zone of Iran.

Resource Claims. Saudi Arabia, in its Royal Pronouncement with Respect to
the Subsoil and Sea Bed of Areas in the Persian Gulf contiguous to the Coasts
of the Kingdom of Saudi Arabia, 28 May 1949, established its first claim to
submarine resources.” Saudi Arabia claimed that “the subsoil and sea bed of those
areas in the Persian Gulf seaward from the coastal sea,” but contiguous to its
coasts “appertain to the Kingdom of Saudi Arabia” and are “subject to its
jurisdiction and control.” Saudi Arabia provided that the boundaries of the subsoil
and seabed contiguous to its coasts would be “determined in accordance with
equitable principles” by the Saudi Government “in agreement with other States
having jurisdiction and control over the subsoil and seabed of adjoining areas.”

Iran had a bill defining its claim to the Persian Gulf subsea resources submitted
to its Majlis on 19 May 1949,'° but did not enact its “continental shelf” claim
into law until 1955. In its Law of 19 June that year Iran claimed that “the area
and the natural resources of the seabed and the subsoil thereof to the limits of
the continental shelf. . . in the Persian Gulf and Gulf of Oman, belong to the
Iranian Government.”"! Iran also provided that “where the continental
shelf. . . extends to the coast of another or coincides with that of a neighboring
country, and if disputes arise concerning the limits of Iran’s continental shelf,
such disputes shall be settled in conformity with the rules of equity.” (In its
original 1949 bill the limits were to be fixed equitably with respect to the natural
resources of the continental shelf.)

In other claims relating to offshore resources, Iran, in its Proclamation of 30
October 1973, claimed that its exclusive fishing zone would extend to the outer
limits of the superjacent waters of its continental shelf in the Persian Gulfand 50
nautical miles in the Gulf of Oman.'” Saudi Arabia made a similar claim to fishing
resources in the Gulf in its Proclamation of 30 April 1974.


Rubin 27

Argentina never made any secret ofits national determination to get the Islands
“back” and to right the “wrong” of 1831-1833. There was never the acquies-
cence impliable by silence that enabled various international tribunals to resolve
similar disputes among other countries;!* neither was there an Argentine failure
to perfect its claim before the critical date of 1833;' nor was there an incorpora-
tion of the territory into a stable allocation of sovereign rights that could be
accepted by all parties.'° On the other hand, over the years after 1833 the British
did maintain a stable administration supported by the fleet, and did bring the
Islands into the world economy by establishing a productive colony.

By 1945 it seems likely that the British could have maintained the stronger
case before a tribunal, but the British case did not address the issues on the basis
of which Argentine national feelings festered. To Argentina, the British con-
solidations of its legal position seemed to pile insult and injury on top of the insult
and injury suffered in the 1830s.

At this point a wise lawyer and policy maker would pause and the policy maker
would likely determine that the paths of the law would be too all-or-or-noth-
ing-ish for reality; that some sort of purchase-and-sale agreement would be
useful; and that the Argentine sense of grievance and British sense of propriety
were both so well-based that a moment of sanity should be seized if ever it
appeared that a formal settlement was possible. But it did not happen.

In 1945, at the close ofa war in which Britain fought for its life while Argentina
tried to avoid entanglement, the states of the world, including both Great Britain
and Argentina, decided that it was time to change the rules of the game. They
negotiated the United Nations Charter as a treaty, and formally agreed to abide
by its terms. Among those terms was article 2(3), which provides that “All
Members shall settle their international disputes by peaceful means in such a
manner that international peace and security, and justice, are not endangered.”
There is no exception for preexisting claims, to permit wars as before when the
quarrel has ancient roots. Indeed, such an idea seems wholly out of keeping with
the open intention of the framers of the Charter. Nor is there any indication that
the framers intended to eviscerate their handiwork by inserting the words “and
justice.” In accordance with the normal rules of international law, such words
are interpreted not by each party with effects valid against all the others, which
is a prescription for conflict; such words are interpreted by the collectivity in
accordance with their more natural apparent intendment: To forbid the use of
force in those cases in which “justice” is endangered by that use, even if that use
is so small in scale and short-lived that international peace and security are not
threatened by it. It was aimed at forbidding such foreseeable strikes as Israel’s
against the Osirak reactor in Iraq (to the extent that strike was not justifiable in
self-defense under other of the Charter’s provisions), not to justify the use of
force.


404 Readings on International Law

— European Convention on the Suppression of Terrorism: Signed and
entered into force 4 August 1978. It is very strong in its wording and states that
none of the many acts (hijacking, kidnapping, use of bombs, grenades, letter
bombs, etc.) “shall be regarded as a political offence or as an offence connected
with a political offence or as an offence inspired by political motives.” While
Austria, the Federal Republic of Germany and Sweden readily signed, France,
Italy, Norway and Portugal all attached reservations concerning the determina-
tion of a “political” offense.’?

— Convention Against Taking of Hostages: Drafted by the United Nations
during the first week of December 1979, it gives the nations that adhere to it a
choice of prosecuting those who seize others with the intention of forcing a
government to act or sending them back for prosecution in their native land,
The Convention will come into force after 22 nations sign it. One article was
contested by the Soviet Union and its East European allies. This specifically
provides for the prosecution ofa person who takes hostages but spares him from
being sent home if extradition is requested to punish him for “race, religion,
nationality, ethnic origin or political opinion.” The Soviets offered a counter
proposal but it was defeated by a vote of 103 to 10.'

Although the above conventions reflect some international concern, they do
not constitute effective constraints on terrorist activity. Many States, including
most of those that have been particularly active in supporting revolutionary or
national liberation groups, are not yet parties. Further, the conventions lack teeth
in that all make the extradition or prosecution of terrorists subject to discretionary
escape clauses and none provides for the application of punitive sanctions against
States that simply refuse to comply at all.

Another aspect that makes defining terrorism difficult, other than the invol-
vement of varying nationalities and cultures, is that terrorism may be committed
for several purposes.’ First, individual acts of terrorism may aim at wringing
specific concessions, such as the payment of ransom or the release of prisoners.
Second, terrorism may attempt the gaining of publicity. Third, terrorism may
target the causing of widespread disorder, demoralizing society and breaking
down social order. Fourth, terrorism may be aimed at deliberately provoking
repression in hopes of inducing the government to “self destruct.”"5 Fifth,
terrorism may also be used to enforce obedience and cooperation. Sixth,
terrorism is frequently meant to punish. Terrorists often declare that the victim
of their attack is somehow guilty of something.'®

One fundamental aspect intimately related to the term terrorism is that it is a
“bad” word.” No one desires to have the label applied to his activity. The
employment of such terms as freedom fighter or liberator are attempts to mitigate
what is in fact an ugly profession. If what terrorism stands for were basically
“good,” the problem of definition would be easier.