Published online by Cambridge University Press: 07 July 2009
This article examines the question of the right of States forcibly to affirm and protect substantive rights which have been unlawfully violated or denied by another State and considers a number of the legal and policy requirements which are relevant in the assessment of the place of this right under contemporary international law.
1. ICJ Rep. (1949) p. 4 at p. 30 (emphasis supplied).
3. 106 Hague Recueil (1962) pp. 238–239.
7. A few examples in view of considerations of space will have to suffice: Aside from the passage of British warships through the Corfu Channel such actions as the exercise with the threat of force of the right of transit passage from Western Germany to West Berlin in the Berlin Crises of 1948–1949 and 1958, the convoy of neutral merchant vessels through the Straits of Hormuz and into the Gulf by warships of various Western navies in the later stages of the Iran-Iraq War of 1981–1988, the use of depth charges and anti-submarine missiles by the Swedish and Norwegian navies to force foreign submarines violating their internal waters to the surface on numerous occasions throughout the 1980s, and the US ‘Freedom of Navigation’ program to prevent interference with what the US views as customary rights under the navigational provisions of the 1982 LOS Convention (see 86 Dept of State Bulletin (2115)(Oct. 1986) p. 85) are all examples of the forcible protection, exercise and affirmation of rights. The Freedom of Navigation program has foreseen, inter alia, in periodic maneuvers by US Navy vessels in the Gulf of Sine where several wellpublicized incidents involving the use or threat of force have resulted. In the above examples, the right of self-defense was not invoked as a general justification for these activities, although certain individual incidents which involved the immediate response to a use of force were (partially) justified on the basis of the right to self-defense. See also nn. 40–42 with accompanying text infra.
8. See e.g., Brownlie, I., International Law and the Use of Force by States (1963) p. 288Google Scholar, where he argues that, ‘to talk of the defence of legal rights is to return to nineteenth century notions of self-help, albeit in a more respectable terminology.’
9. See e.g., R. Ago (Special Rapporteur), in ILC Yearbook 1980 Vol II Part 1 paras. 116–117 pp. 67–68; Brownlie, op. cit. a 8, at pp. 250–251; Falk, R., ‘International Law and the United States Role in the Vietnam War’Google Scholar, and ‘International Law and the United States Role in Vietnam. A Response to Professor Moore’, in The Vietnam War and International Law (1969) pp. 362–400 and p. 400 et. seq.Google Scholar; Henkin, L., How Nations Behave, 2nd edn. (1974) pp. 141–145Google Scholar; Schachter, O., ‘The Right of States to Use Armed Force’, 82 Michigan LR (1984) pp. 1620 and 1634–1635CrossRefGoogle Scholar; Dinstein, Y., War, Aggression and Self-Defense (1988) p. 168 and others.Google Scholar
10. See e.g., Bowett, D., Self-Defense in International Law (1958) p. 187 et seq.Google Scholar; McDougal, M. and Feliciano, F.P., Law and Minimum World Public Order (1961) p. 232 et seq.Google Scholar; Stone, J., Aggression and World Order (1958) pp. 43–44 and 92 et seq.Google Scholar; Moore, J.N., ‘The Secret War in Central America’, 80 AJIL (1986) p. 83 and others.CrossRefGoogle Scholar
11. See Gill, T.D., ‘The Law of Armed Attack in the Context of the Nicaragua Case’, 1 Hague YIL (1988) pp. 30 and 34–35 with accompanying notes.Google Scholar
12. Military and Paramilitary Activities In and Against Nicaragua (merits), ICJ Rep. (1986) p. 14 at p. 103 (para. 195).
13. Ibid. The Court stated in this respect mat ‘[it] does not believe that the concept of “armed attack” includes not only acts by armed bands where such acts occur on a significant scale but also assistance to rebels in the form of the provision of weapons or logistical or other support.’ For vigorous criticism of this position see e.g., the dissenting opinions of Judge Sir Robert Jennings in idem pp. 543–544 (dissent, Jennings J.) and Judge Schwebel idem at p. 332 (para. 155) (dissent Schwebel J.). My own views are set out in Litigation Strategy at the International Court: A Case Study of the Nicaragua v. US Dispute (1989) pp. 242–243 and 336.Google Scholar
14. See Dinstein, op. cit. n. 9, at pp. 200–202, where that author sets out the view that an ‘on the spot reaction’ is a category of self-defense ‘in which a small-scale armed attack elicits at once, and in situ, the employment of counter-force’ (thereby closing the incident). Professor Dinstein distinguishes this category of counter-force from ‘war’ as ‘an act of comprehensive use of counterforce in response to a [substantial] armed attack’ (see idem at p. 215). Clearly a State does not have a right to open fire on foreign military personnel, aircraft or warships outside its territory or which are on its territory with its consent, or which are exercising a right of transit such as innocent passage through territorial waters. Various examples of incidental armed attack and ‘on the spot reaction’ in self-defense are considered elsewhere in this essay. See section 12 above with regard to the differentation by Waldock between self-defense and forcible exercise of the right of passage in relation to the Corfu Channel incident. See also in this context section 2.5 below where the Corfu Channel incident is examined in more detail. The use of force against the threat of incipient armed attack posed by anti-ship missiles is discussed further in n. 96 and accompanying text infra. See also n. 50 infra.
15. See infra, section 2 for a description of the kind of rights which may be protected through the threat or use of force. See also n. 7 supra. See also nn. 40–42 with accompanying text infra.
16. The use of force by individual States (acting outside the context of collective UN enforcement measures) to protect the population of another State against widespread human rights violations has triggered much controversy in legal literature. See, far example, the views of Lillich, R., ‘Humanitarian Intervention’Google Scholar, in Moore, J.N., Law and Civil War in the Modern World (1974) pp. 229–251Google Scholar (in support of such a right), and Brownlie, I., ‘Humanitarian Intervention’, in the same publication at pp. 217–228Google Scholar (who is opposed to accepting the right). Most States and the majority of authorities are reluctant to recognize the existence of a right to intervene on behalf of the population of another State. (See Schachter, O., ‘General Course in Public International Law’, 178 Hague Recueil (1982) p. 144Google Scholar), albeit primarily on the grounds that such a right would be open to abuse by stronger States. It is possible that if a State were to perform a ‘genuine’ humanitarian intervention without ‘ulterior motives’ as a reaction to widespread and serious human rights violations by the government of another State against its own citizens that this would meet with little criticism by the international community, although such altruism is a rare commodity in international relations. The use of force by a State to rescue its nationals in situations where their lives or physical safety are threatened in another State by the actions or complicity of the other State's government (e.g., Israeli rescue action in Entebbe in 1976) is distinct from both humanitarian intervention and from the right of forcible protection and affirmation of rights which is the subject of this essay. Most authorities and States view this type of armed action as being part of, or at least closely related to, the right of self-defense. See e.g., Bowett, D.W., ‘The Use of Force for the Protection of Nationals Abroad’, in Cassese, A., ed., The Current Regulation of the Use of Force (1986) p. 39 et seq.Google Scholar; Dinstein, op. cit. n. 9 at pp. 187–188; Fitzmaurice, G., ‘The General Principles of International Law Considered from the Standpoint of the Rule of Law’, 92 Hague Recueil (1957) pp. 172–173Google Scholar. Contra, inter alia, Ronzitti, N., Rescuing Nationals Abroad through Military Coercion and Intervention on Grounds of Humanity (1985) pp. 65–68Google Scholar, who argues that rescue of nationals is a(n) (emerging) customary right distinct from self-defense. The present author agrees with the ‘selfdefense interpretation’ of the question of rescue of nationals, since, as stated, the only grounds for using force on the territory of another State in the absence of that State's consent or UN Security Council authorization pursuant to Chapter VII of die Charter, is self-defense. The legal conditions relating to such action were stated by Waldock in his 1952 lecture (loc. cit. n. 2, at p. 467): ‘There must be (1) an imminent threat of injury to nationals, (2) a failure or inability on the part of the territorial sovereign to protect them and (3) measures of protection strictly confined to the object of protecting them against injury.’
17. The proposition that a State assisting another State which has been the target of an armed attack can only do so if its ‘legally protected interest’ is at stake, was put forward by, inter alia, Bowett, op. cit. a 10, at pp. 206–207 and repeated by Judge Sir Robert Jennings in his dissenting opinion in the Nicaragua case, supra n. 13 at pp. 544–546.
18. The position of most authorities, e.g., Brownlie, op. cit. n. 8, at pp. 330–331, is that collective self-defense can be lawfully exercised in situations where one or more States come to the assistance of another State or States which have been the target of an armed attack. Schachter, loc. cit. n. 16 at p. 158, states, inter alia, that ‘[w]hen a State comes to the aid of another, the legal issue is not whether the assisting State has a right of individual defence, but only whether the State receiving aid is a victim of external attack and has requested military support from the assisting State.’ More to the point, this position is almost universally reflected in State practice. Article 5 of the North Atlantic Treaty, 34 UNTS at p. 243, states, inter alia, ‘that an armed attack against one or more of [the parties] in Europe or North America shall be considered an attack against mem all.’ This construction is reflected in the majority of similar mutual assistance pacts and avoids any reference to a requirement that the security of the assisting State must be endangered in order for it to be able to provide military assistance.
19. The United States intervention to assist South Korea, the American landing in Lebanon in 1958 and that of the United Kingdom in Jordan in the same year, the American intervention to assist South Vietnam, British assistance to the Government of Malaysia during the ‘confrontation’ with Indonesia in 1964–1965 and to Kuwait following its independence in 1961, the Soviet and United States threats to assist Egypt and Israel respectively during the 1973 Yom Kippur war, the Chinese ‘punitive operation’ against Vietnam following the Vietnamese invasion of Cambodia in 1979, and the Cuban intervention in Angola in 1975 are just some examples of States who intervened (or threatened to intervene) to assist the targets of (alleged) armed attacks or threats of attack in the exercise of collective self-defense. Regardless whether one considers any or all of these examples to be justified or not, the point is that they illustrate the propensity of both sides in regional conflicts to call upon and receive outside assistance by States within the context of the exercise of collective self-defense. Whether this will change as a result of the far-reaching modifications in the international system and the improvement in East-West relations in 1989–1991 remains to be seen. For an analysis of the relationship between collective security and collective self-defense see Schachter, O., ‘United Nations Law in The Gulf Conflict’, 85 AJIL (1991) p. 452 et seq.CrossRefGoogle Scholar and Gill, T., ‘The Second Gulf Crisis and the Relationship Between Collective Security and Collective Self-Defense’, 10 Grotiana (1989, published in 1991) p. 47 et seq.CrossRefGoogle Scholar
20. See section 1.2 supra. The concept of ‘threat of force’ has received comparably little attention as has been pointed out by, inter alia, Schachter, loc. cit. n. 9, at p. 1625. One notable exception is the recent article by Sadurska, R.,‘Threats of Force’, 82 AJIL (1988) p. 239 et seq.CrossRefGoogle Scholar, in which that author examines the concept, functions and legitimacy of threats of farce under contemporary international law. Although the subject matter of that article and the present essay overlap to a certain extent, there are important distinctions and differences. Dr. Sadurska's article is both broader and narrower in scope than the present essay, which purports to examine the place of the right of armed self-protection in the projection and affirmation of rights within the context of the law regulating the use of force. Dr. Sadurska's examination of threats of force includes a broader set of criteria as to what consitutes a threat idem at p. 242 (‘a threat of force is a message, explicit or implicit, formulated by a decision maker and directed to the target audience, indicating mat force will be used if a rule or demand is not complied with’). Dr. Sadurska's treatment of threats includes, moreover, a wider set of circumstances in which threats can occur and a more extensive number of purposes and functions for which threats can be employed man just the protection or affirmation of a right which has been unlawfully denied — although that is one of the purposes she attributes to threats (see idem at pp. 243–247 and 262–265). On the other hand, the article by Sadurska does not comprehensively deal with the actual use of force, subject to certain legal and policy restrictions, in the protection of rights such as territorial inviolability and political independence, or the modalities of the exercise of the right of armed self-protection in securing rights such as innocent or transit passage through foreign territorial seas and international straits as is attempted in the subsequent paragraphs of this essay. The above comments should not be interpreted as implying criticism of Sadurska's thought-provoking article, but rather as a distinction between the subject matter and scope of the two essays. For the purposes of the present article, ‘threat of force’ will be used in the sense of actual conduct which is undertaken to secure a well established and recognized substantive legal right which has been unlawfully denied or violated, especially the forcible exercise of a right under such circumstances.
21. Other authorities have also referred to a right of forcible self-protection with some in support and others opposed to the recognition of such a right. These include, inter alia: Bowett, op. cit. n. 10, at p. 269; Brownlie, op. cit. n. 8, at p. 288; Dinstein, op. cit. n. 9, at pp. 165 and 221 et seq.; Kelsen, H. (rev. by Tucker), Principles of International Law (1966) pp. 73–87Google Scholar; Sadurska, loc. cit n. 20, at pp. 262–265; Stone, J., Aggression and World Order (1958) pp. 100–101Google Scholar; and Zoller, E., Peacetime Unilateral Remedies (1984) pp. 70–72Google Scholar. Likewise, both the International Court in the Corfu Channel case supra, and the report by Roberto Ago in his capacity as Special Rapporteur on State responsibility in the International Law Commission (ILC Yearbook 1980 Vol. II Part 1, p. 66) referred to a right of armed self help in the ‘lawful protection of rights’ in situations other than self-defense.
22. See section 1.2 supra.
23. This is supported by the majority of authors including those cited in n. 9 supra. Others who adhere to this view include Jessup, P.C., A Modem Law of Nations (1948) p. 165 et seq.Google Scholar; Kelsen, H., The Law of the United Nations (1950) p. 797 et seq.Google Scholar; Kunz, J.L., ‘Individual and Collective Self-Defense in Article 51 of the Charter of the United Nations’, 41 AJIL (1947) p. 877 et seq.CrossRefGoogle Scholar, and is supported by the International Court's decisions in both the Corfu Channel case, supra, n. 1 at pp. 34–36 and in the Nicaragua case, supra, n. 12 at p. 110 (para. 211). Note that in the Nicaragua judgment, the Court did not completely rule out the theoretical possibility of a State responding to armed intervention which did not constitute an armed attack by ‘armed countenneasures’ — although it denied mat such a right could be exercised collectively by one State on behalf of another, see idem p. 110 (para. 210). The situations in which a State may threaten or use armed force in the protection or affirmation of an established and recognized right outside its territory will be examined in the subsequent paragraphs of this essay.
24. See section 1.2 supra. The concept of anticipatory self-defense has generated a significant amount of controversy among authorities, with some writers firmly opposing action undertaken in. self-defense before an armed attack is launched (e.g., Brownlie, op. cit. n. 8, at p. 275 and Henkin, op. cit n. 9, at pp. 141–145), while other writers (e.g., Bowett, op. cit. n. 10, at p. 118 et seq., Schachter, loc. cit. n. 9, at pp. 1633–1635 and Waldock, loc. cit. n. 2, at pp. 497–499) accept the legitimacy of anticipatory self-defense within the confines of die well known Caroline doctrine, laid down by Secretary of State Webster, in which it was stated that self-defense can only be exercised in situations in which ‘the necessity of mat self-defence is instant, overwhelming and leaving no choice of means and no moment for deliberation’ (see Moore, J., Digest of International Law (1956) at p. 412)Google Scholar. Whatever the relevance of the Caroline doctrine may be to post-Charter international law, the interpretation, assessment of and reaction to two separate examples of anticipatory action; the Israeli attack in June 1967 upon Egyptian airfields which opened the Six Day War, and the Israeli air strike against an Iraqi nuclear reactor in June 1981, provide a clear indication of the current state of the law in relation to anticipatory self-defense. The former action was not condemned, as it was taken in response to a number of threatening acts and specific pronouncements; including the blockade of the Strait of Tiran, the full mobilization of the Egyptian armed farces, the eviction of the UN buffer force in the Sinai, and the formation of a joint command structure between three States bordering Israel. (See in general, Moore, J.N., ed., The Arab-Israeli Conflict, 3 Vols. (1974))Google Scholar. The latter example, in contrast, was unanimously condemned by the Security Council, inter alia, because it was not considered to be an action undertaken in response to an imminent and overwhelming threat of an armed attack. See Schachter, loc. cit. n. 9, at p. 1635 and 20 ILM (1981) at p. 963 et seq. The Court refrained in its Judgment in the Nicaragua case from making any pronouncement regarding the legality or otherwise, of anticipatory self-defense (see supra, n. 12 at p. 103, para. 194).
25. For a clear historical-legal analysis of the Suez operation see Henkin, op. cit. n. 9, at pp. 258–268. Far treatment of the Argentinian grounds for attempting to forcibly retake what it sees as its territory see, inter alia, Rubino, P., ‘Colonialism and the Use of Force by States’, in Cassese, A., ed. The Current Legal Regulation of the Use of Force (1986) pp. 138–142Google Scholar. For the Iraqi justifications of its invasion of Kuwait in response to perceived ‘economic aggression’ and to ‘reunite’ territory which had been, according to Iraq, historically part of Iraq until separated by the ‘British colonial scissors’, see Press Release by the Press Office of the Embassy of the Republic of Iraq, London, 12 September 1990, in Lauterpacht, E. and Greenwood, C., eds., The Kuwait Crisis Basic Documents (1991) pp. 73–77.Google Scholar
26. Section 1.2 supra.
27. Supra. Note, however, that in the Corfu Channel series of incidents an earlier passage by British Warships through the Channel had resulted in those vessels being fired upon — which certainly does qualify as an armed attack. See also n. 80 and accompanying text infra.
28. Supra, section 1.2.
29. The notion of sovereign equality of States is of course a basic principle of international law which is firmly rooted in customary international law and is affirmed in Art 2(1) of the UN Charter and various UN resolutions, notably GA Res. 2625 (XXV) of 24 October 1970, ‘Principles of International Law Concerning Friendly Relations and Cooperation Among States.’
30. See section 2.4 and n. 70 infra.
31. For an extensive treatment of the purpose of peacetime countermeasures see Zoller, E., Peacetime Unilateral Remedies: An Analysis of Countermeasurers (1984) p. 46 et seqGoogle Scholar. Dr. Zoller names several purposes or aims of countermeasures, only one of which is to secure compliance with the law.
32. Zoller, op. cit. n. 31, at pp. 55–61.
33. This is the position of Sir Humphrey Waldock, see n. 2 supra, with accompanying text. This is also the basic thesis of this article.
35. This was pointed out and persuasively argued by Dinstein, op. cit. n. 9, at pp. 202–212 and earlier by Bowett, loc. cit. n. 34.
36. Hereinafter referred to as the ILC. See ILC Yearbook 1980 Vol. n Part 1, p. 14 et seq. for Mr Ago's comprehensive treatment of necessity as a ground for precluding wrongfulness of an act which would otherwise be in violation of international law. Mr Ago's report, citing copious doctrinal support and State practice, makes clear that necessity is only applicable to situations in which there has been no violation of the rights of the State which acts in necessity by another State. At least as important in distinguishing the concept of necessity from both self-defense and armed self protection is the fact mat invocation of necessity does not presuppose unlawful conduct on the part of the target State. Ago stated in this respect ‘[o]n the other hand … when a State, in order to justify conduct not in conformity with an international obligation Unking it to another State, can do no better man to allege that it acted in a “state of necessity”, it has no kind of internationally wrongful act committed by the other State to adduce in its defence…’ (idem p. 15 para. 4; see also note 7 accompanying Ago's text, in which Ago cites, inter alia, Verdross, de Visscher and Sörensen in support of the position). In contrast, both self-defense and armed self-protection, which is the subject of this essay, presuppose a wrongful act on the part of the State against which the measures are taken.
37. Idem p. 65 (para. 113). The ILC also refused to take a definitive position on this issue and deferred it to die political organs of die UN. See ILC Yearbook 1980 Vol. n Part 2, pp. 44–55 (para. 24). See also Malanczuk, P., ‘Countermeasures and Self-Defense as Circumstances Precluding Wrongfulness in die International Law Commission's Draft Articles on State Responsibility’, 43 ZAÖRV (1983) pp. 705–783.Google Scholar
38. Supra, n. 36 at pp. 38–39 (para. 56). See also die other sources cited in Malanczuk, loc. cit. n. 37, p. 778 et seq. Professor Ago's examination of die possibility that force could be used on the territory of another State was careful to exclude necessity as providing grounds to circumvent the prohibition of aggression which is contained in Art 2(4) of the Charter and customary law, or the prohibition of intervention. See idem pp. 38–39 (para. 55). The examples cited by the Special Rapporteur included, besides the venerable Caroline incident (idem note 117 at pp. 39–40), which it should be recalled, involved a cross border strike by British troops in Canada against private US nationals engaged in smuggling arms to Canadian rebels, such incidents as the pursuit by by US troops in the nineteenth century of hostile Indians who fled across the border into Mexico, and the pursuit by General Pershing of the Mexican outlaw-revolutionary, Pancho Villa (see idem pp. 39–40, para. 57 and Schachter, O., International Law in Theory and Practice (1991) p. 170)Google Scholar. The only post-Charter invocation of a ‘plea’ of necessity in this context was the Belgian armed rescue mission in Katanga in 1960 (idem pp. 43–44, paras. 64–65).
39. Supra, n. 36, at p. 66 (para. 113).
41. ICJ Rep. (1960) p. 6 at pp. 39–44.
42. With respect to the regime pertaining to the Suez and Panama Canals see e.g., Brownlie, I., Principles of Public International Law, 4th edn. (1990) pp. 276–278Google Scholar. With respect to international mandates and protectorates, see idem at pp. 178–179; see also Verzijl, J.H.W., International Law in Historical Perspective, Vol. II (1969) p. 545 et seqGoogle Scholar. With respect to international leases see Brownlie, ibid. pp. 113–114; see also O'Connell, op. cit n. 40, pp. 328–330. With respect to the status of the demilitarized status of the Rhineland in the interbellum. Arts. 42–44 of the Versailles Treaty (C. Parry, The Consolidated Treaty Series, vol. 225) and Arts. 2 and 4 of the Locarno Pact (154 LNTS 289), provided for the demilitarized status and right of armed self-protection referred to in the text above.
43. See e.g., Art. 2(4) UN Charter, Arts. 3 and 11 of the Montevideo Convention on the Rights and Duties of States of 1933, 165 UNTS 19; Arts. 12 and 17 of the OAS Charter, TIAS 2361, 119 UNTS 3; Arts. 2(1) sub. C and 3(3) of the OAU Charter, 2 ELM (1963) 766; Arts. 1–3 of the Convention on International Civil Aviation of 1944, TIAS 1591, 15 UNTS 295. The principle of sovereign equality of States is contained in the Declaration on Principles of International Law Concerning Friendly Relations, UNGA Res 2625 XXV 1970 and the dictum of the International Court in the Corfu Channel case, ICJ Rep. (1949) at p. 34, as well as in the UN Charter (Art. 2(1)) itself.
44. See Arts. 1 and 14 of the 1958 Convention on the Territorial Sea and the Contiguous Zone, TIAS 5639, 516 UNTS 205. For thorough coverage of the juridicial nature, extent and limits of the territorial sea, see O'Connell, D.P., The International Law of the Sea (1982) p. 60 et seqGoogle Scholar. See also Art. 2 of the Convention on International Civil Aviation of 1944 (Chicago Convention), 15 UNTS 295, TIAS 1591. The question of passage through international straits and equivalent sea lanes will be dealt with in a subsequent section, see infra, section 2.6.
45. Henkin, L., ‘General Course in Public International Law’, 216 Hague Recueil (1989) p. 105 et seq.Google Scholar
46. See section 1.2 supra.
47. See e.g., ILC Yearbook Vol II Part 2, Ch. 3 at p. 87 et seq. and 1980 Vol. I (Arts. 31–33 of Ch. 5 of the Draft Articles on State Responsibility list these as examples of ‘circumstances precluding wrongfulness’).
48. There have been many examples of submarine penetration of internal waters that have been reported in recent years, most notably in Swedish and Norwegian waters. The most publicized of these was the 1981 Karlskrona incident in which a Soviet-submarine penetrated deeply into Swedish waters in the immediate vicinity of the Karlskrona naval base and ran aground on 27 October 1981. However, there have been numerous other reported incidents, both prior to and since the aforementioned 1981 incident. See e.g., Froman, F.D., ‘Uncharted Waters: Non-innocent Passage of Warships in the Territorial Sea’, 21 San Diego LR (1984) pp. 625 and 626–628.Google Scholar
49. Espionage or reconnaisance flights by overflying aircraft have been alleged by various States, including Cuba, Nicaragua, North Korea, Lebanon, and the USSR and include the well known ‘U2 incident’ in which a USAF high altitude surveillance aircraft was shot down over Soviet territory in 1960. Nicaragua complained of both reconnaisance flights and overflights of its capital by US aircraft in the proceedings in the Nicaragua case. See ICJ Rep. (1986) pp. 51–52 (paras. 87–89).
50. See pp. 111–113 supra, with accompanying notes for an examination erf the right of the State to respond in self-defense in the form of an on the spot reaction to an incidental armed attack. The essential distinction between ‘on the spot reaction’ is self-defense and the use of force in the context of the protection of the right, of territorial inviolability in response to an unlawful incursion onto State territory, is that self-defense is not restricted to the State's territory, while protection of the State's territorial inviolability is.
51. ICJ Rep. (1986) pp. 103–104 (para. 195). For criticism see idem at pp. 541–544, Jennings, J. dissenting, and the sources referred to in nn. 10, 11 and 13 supra.
52. United Nations Convention on the Law of the Sea, UN Doc. A/CONF.62/122, Art. 2, hereinafter referred to as the 1982 LOS Convention. See also Art. 1 of the 1958 Convention on the Territorial Sea. See also n. 44 supra.
53. 1982 LOS Convention, Art. 17; 1958 Territorial Sea Convention, Art. 14. See also a 44 supra.
54. The question of peacetime innocent passage of warships did not emerge until the late nineteenth century and most State practice prior to that time is largely irrelevant to the question. O'Connell (op. cit n. 44, at p. 274 et seq.) states at p. 279 ‘[t]hat [m]ost national legislation concerning visits of foreign warships dealt with the territorial sea only incidentally’ and ‘[t]here was, therefore, little doctrinal and practical background to the question when it was considered in the codification exercises of the 1920's.’ From his review of State practice (pp. 278–281) preceding the codification conferences it is clear that while practice differed, most States did not require authorization (Brazil, Peru, China, Denmark (except in the Little Belt), ban, the Netherlands, France, Norway and others). The 1956 draft of the ILC contained a clause requiring prior authorization. However, during the 1958 Geneva Conference, the Western States succeeded in getting this amended in the plenary meeting of 27 April 1958. The new article did not, however, receive the necessary two-thirds majority, due to the opposition of the Soviet Union and its allies. The 1958 Convention therefore contained neither an article expressly permitting passage by warships, nor requiring prior authorization for the innocent passage of warships. The interpretations of Art 14 of the 1958 Convention differed (idem at pp. 290–291) with some States insisting that the expression ‘ships’ denotes all vessels including warships. O'Connell states (at p. 291), that ‘[t]he correct view to take of the Geneva Conference is that it relegated the question of innocent passage to customary law. Although this is controversial, it cannot be overlooked that opposition to including warships in the general right of innocent passage is recent, and has been artificially stimulated.’ The text of Art. 19 of the 1982 LOS Convention leaves no room for doubt that warships possess a right of innocent passage, although a minority of mostly Third World States require prior permission for the passage of warships, including Albania, Algeria, Bulgaria, Egypt, Malta, Romania and Syria. A somewhat larger group of States, including, inter alia, such important Third World States as Brazil, China and India, requires prior notification. See Alexander, L.M., Navigational Restrictions within the New LOS Context: Geographical Implications for the United States (1986) p. 279Google Scholar and O'Connell ibid. For a contrary view see e.g., Ngantcha, F., The Right of Innocent Passage and the Evolution of the International Law of the Sea (1990) p. 150Google Scholar and note 205 at p. 290. The (former) Soviet Union has recently shifted its position towards accepting the right of warships to exercise innocent passage without prior authorization or notification, subject to the restrictions enumerated in Art 19, violation of which would render the passage non-innocent, and also subject to the requirement that the warship observe all coastal State laws and regulations relating to the safety of navigation and traffic separation schemes. See 28 ILM (1989) p. 1444 et seq., ‘Joint Statement of the USSR and United States regarding Uniform Interpretation of Rules of International Law Governing Innocent Passage’, done at Jackson Hole, Wyoming, September 23, 1989.
55. See section 2.5 infra.
56. The list of activities contained in para. 2 is not exhaustive as is clear from sub (1) which prohibits ‘any other activity not having a direct bearing to passage.’
57. See Arts. 21, 22 and 24 of the 1982 LOS Convention.
58. Cf., Arts. 25 and 30 of the LOS Convention and see Froman, loc.cit. n. 48, at pp. 660–664.
59. See Art. 31 of the 1982 LOS Convention.
62. See Arts. 2, 17 and 19(2) of the 1982 LOS Convention. Art. 2, para. 2 provides that the sovereignty of the coastal State extends ‘to the airspace over the territorial sea’ … while Art. 17 provides that ships of all States … ‘enjoy the right of innocent passage through the territorial sea.’ Art. 19(2) specifically characterizes overflight as ‘non-innocent’. See also O'Connell, op. cit. n. 44, at p. 294. O'Connell points out that ‘[t]he recognition in the Paris Convention of the sovereignty of the coastal State in the airspace above its territorial waters meant that overflying thereof constituted the overflying of national territory, and was illegal without express permission.’
63. See e.g., O'Connell, op. cit. n. 44, at pp. 294–297, and Froman, loc. cit. n. 48, at pp. 663–664. See also Sadurska, R., ‘Foreign Submarines in Swedish Waters’, in Reisman, W.M. and Willard, A.R., eds., International Incidents: The Law That Counts in World Politics (1988) p. 40 et seq.Google Scholar
64. See e.g., O'Connell, op. cit a 44, at p. 295 and Froman, loc. cit. n. 48, at p. 663. This was also the view of Fitzmaurice. See O'Connell idem p. 296.
65. The submerged navigation of submarines through international straits and archipelagic waters is a different matter which is governed by separate provisions of the 1982 LOS Convention and which will be considered in the next section relating to activities in international straits. See section 2.6. infra. For the problems of submarine navigation in shallow and confined waters and those pertaining to the hazards to surface navigation by submarines under adverse weather conditions, see O'Connell, D.P., The Influence of Law on Sea Power (1975) p. 143.Google Scholar
66. This seems obvious in the light of the clear obligation contained in Art 20 of the 1982 LOS Convention far submarines to navigate on the surface. O'Connell, op. cit. n. 65, states, however, at p. 143 that ‘[a]ny submarine requiring to dive for bad weather or other reasons connected with its safety or timely arrival at its destination, could inform the coastal State of its intention and of its planned “dived” course — although it must be remembered that the possibility of its doing so depends upon radio propagation conditions, which can be very difficult, and on speed.’ With respect, this observation seems too permissive. An obligation to navigate on the surface cannot be squared with the possibility that a submarine could choose to dive merely to ensure a ‘timely arrival’ at its destination. If a submarine were required to dive to insure its safety because of navigational conditions caused by adverse weather or unforseen circumstances it would still be under an obligation to inform the coastal State's authorities of its identity, position, and the reasons necessitating its submerged passage. If this were impossible due to problems relating to its radio transmission mis would be due to force majeure, not a lessening of its obligation as such. Even under such conditions, it would be under a strict obligation to refrain from any activities prejudical to the security of the coastal State or to navigational safety and to proceed as quickly as was safely possible out of the territorial waters of the coastal State if this were practically possible. If challenged to identify itself and surface, it would be under an obligation to do so before proceeding on its course. Failure to do so, could well render its passage non-innocent if this were coupled with refusal to identify itself, or with evasive action or other measures mat could give rise to well-founded suspicion by the coastal State's authorities that the submarine's presence posed a threat to its security.
67. See O'Cornell, op. cit. n. 65, at p. 144, where that author describes the practice of NATO and Warsaw Treaty States in relation to contact with unauthorized submarines in their respective territorial waters, in particular the so-called ‘Uncle Joe’ procedures utilized by the US Navy, whereby grenades or TNT charges are dropped to make five underwater sound signals at two second intervals in order to summon the submarine to the surface. If these signals are ignored, the submarine is presumed to be a hostile intruder and is subject to attack. For the practice of the Swedish Navy, see Sadurska, loc. cit. n. 63, at pp. 40–41. For a description of the policy of the Norwegian and Argentine Navies, see O'Cornell, op. cit n. 44, at p. 297.
68. See Sadurska, loc. cit. n. 63, pp. 55–56, quoting Section IS of the Swedish Government ‘Ordinance Containing Instructions for the Armed Forces in Times of Peace and in State of Neutrality’ which was published on 17 July 1982 and was later amended by that government to include the use of force without prior warning under special circumstances on 3 March 1983. The ordinance took effect on 1 July 1983. It should be pointed out mat the Swedish measure did not result in diplomatic protests or other condemnation by other States. On the contrary, a number of States, in particular Sweden's Scandinavian neighbors, expressly approved of the Swedish measures. The Soviet Union also abstained from protesting against the Swedish action. See Sadurska, loc. cit. n. 63, at pp. 51 and 58–60.
69. Submerged passage is not necessarily synonomous with non-innocent passage as was explained in the above text and in the accompanying notes.
70. For a contrary assessment, see Sadurska, loc. cit. n. 63, at pp. 40–41 and 60–67. With respect, her analysis seems flawed in several respects. Dr Sadurksa's objections rest essentially on the principle of sovereign immunity of warships and the contention that ‘requiring surface passage of submarines may be prejudicial to the security interests of those States employing them, and may aggravate international tensions’ (p. 65). However, neither of these arguments are applicable or germane to the incidents in question. While it is true mat foreign warships enjoy immunity from jurisdiction, this does not signify that such immunity extends to include immunity from protective action in response to non-innocent passage in the territorial waters or unauthorized penetration of the internal waters, land territory, or airspace of another State. This would be tantamount to saying that a State could take no action against the unauthorized presence of foreign troops on its soil because they enjoyed sovereign immunity. As to the argument relating to the need of submarines to navigate under the water because of the security interests of some States, it is clear from the sources used to support this statement (fn. 133, at p. 65) that the author is referring to passage through (or under) international straits. Neither Karlskrona nor Muskö, the two Swedish naval bases referred to in the text of that article lie on or near any international strait. Both of these areas were in enclosed bays or fjords well outside normal transit routes and the fact that both were naval bases (and not commercial ports) is significant. Sovereign immunity and innocent passage (much less straits passage) are not barriers to a coastal State preventing foreign unidentified warships from carrying out training missions, intelligence gathering, or other hostile activities in its territorial and internal waters.
71. Dr. Sadurska reports (loc.cit. n. 63, in fn. 1 at p. 41) that no less than 93 known violations of Swedish waters had taken place, an average of nine per year, between 1962 and 1980. In 1982 the number increased to 40 in the first ten months of that year.
72. See section 2.1 supra, for a summary of general conditions relating to the use of force in such circumstances.
73. Art. 25(3) 1982 LOS Convention. A similar provision is contained in Art. 16(3) of the 1958 Territorial Sea and Contiguous Zone Treaty.
74. Clearly, we are referring here to maneuvers or weapons tests which are carried out by the coastal State's authorities. Foreign flag vessels have only the right to engage in innocent passage referred to and elaborated above.
77. Art. 38(1) jo. Art. 45(2) 1982 LOS Convention and Art. 16(4) 1958 Territorial Sea Convention. See also Churchill and Lowe, op. cit n. 75, at p. 74 and O'Connell, op. cit. n. 44, at p. 298.
78. Most such incidents have only triggered diplomatic protests. For a notable exception see Hitt, J.C. Jr., ‘Oceans Law and Superpower Relations: The Bumping of the Yorktown and the Caron in the Black Sea’, 29 VJIL (1989) p. 712 et seq.Google Scholar
80. See GA Res. 3314 ‘Definition of Aggression’ adopted by consensus on 14 December 1974 Art. 3, sub d speaks, inter alia, of ‘an attack by a State on the marine and airfleets of another State.’ While the Resolution does not purport to provide a definition of an ‘armed attack', it seems clear by the wording and background of the resolution and from State practice that an attack on a warship would be seen as an ‘armed attack’ in the sense of Art. 51. See also supra, n. 14 and accompanying text.
81. It was stated earlier in this essay that innocent passage by warships is recognized in the 1982 LOS Convention and has some foundation in pre-1938 customary law (see section 2.3 and accompanying notes supra). Consequently, the exercise of this right in the face of protests by a coastal State which maintained that entry into its territorial sea by foreign warships was subject to its permisson would, at most, constitute a form of retorsion. Traditionally, most authorities have asserted that there are no legal limits to acts of retorsion other than a duty to end it when the unfriendly or unlawful conduct of the other State ends. See Oppenheim, L., International Law, Lauterpacht, H., ed., Vol. II, 7th edn. (1952) pp. 134–135Google Scholar. See also Zoller, op. cit. n. 31, at pp. 5–9. For a somewhat different view see Schachter, loc. cit. n. 16, at pp. 185–187.
82. North Korea alleged that a US naval electronic surveillance vessel, the Pueblo, was engaged in espionage in its territorial waters and forcibly arrested the vessel and its crew in 1968. The US categorically denied the charge, although it did issue a verbal ‘admission of guilt and apology’ to Norm Korea in order to secure the freeing of its crew — an act which was retracted as soon as the crew members were back in US custody. A number of States maintain claims to territorial or internal waters in excess of the limits allowed under the 1982 LOS Convention, including Libya. The challenging of the latter's claim to the Gulf of Sirte has resulted in a number of incidents involving the use or threat of force. Egypt closed the Straits of Tiran in 1967 and probably assisted in an attempt to close the Bab El Mandeb Straits during the 1973 Yom Kippur War, while both Iran and Iraq proclaimed extensive ‘war zones’ and exclusion zones in large areas of the Gulf in which they would exercise belligerent rights and in which they both in fact engaged in conduct which frequently violated the recognized rules of naval warfare. See inter alia, O'Connell, op. cit. n. 63, at pp. 6–7, 101–2 and 110–112. Spinnato, J.M., ‘Historic and Vital Bays: An Analysis of Libya's Claim to the Gulf of Sidra’, 13 ODIL (1983) p. 65 et seqCrossRefGoogle Scholar. and B.Boczek, A., ‘Lessons from the Gulf War’, 20 ODIL (1989) pp. 239–271CrossRefGoogle Scholar for accounts of these incidents.
83. Churchill and Lowe, op. cit. n. 73, at p. 75. See also O'Connell, op. cit. n. 65, at p. 141.
84. Anglo-Norwegian Fisheries case, ICJ Rep. (1951) p. 116 at pp. 138–139.
85. See e.g., Booth, K., Law, Force and Diplomacy at Sea (1985) p. 187 et seqGoogle Scholar. See also section 2.7 infra.
86. This explains to a considerable extent the low-key response by the US and other interested naval States to Phillipine and Indonesian assertions of the right to regulate, control and on occasion, prohibit passage through areas of its territorial and ‘arcbipelagic’ waters. See inter alia, O'Connell, op. cit. n. 65, at pp. 109–110 and Rothwell, D.R., ‘The Indonesian Strait Incident: Transit or Archipelagic Sea Lanes Passage’, 14 ODIL (1990) pp. 491–493 (note 18).Google Scholar
87. See Alexander, op. cit. n. 54 for an assessment of the importance of various straits and international sea lanes to international commerce and security. Estimates differ as to how many straits have lost their former status as high seas through the extension of the limit of the territorial sea to twelve miles. Larson gives a figure of 135 straits which would be closed off by (overlapping) territorial sea: Larson, D.L., ‘Innocent, Transit, and Archipelagic Sea Lanes Passage’, 18 ODIL (1987) pp. 411–414CrossRefGoogle Scholar, and O'Connell, op. cit n. 44, at p. 317 mentions a figure of more than 130 which have become territorial waters.
88. This is the rationale of the US ‘Freedom of Navigation’ Program referred to in n. 7 supra. See also ‘Excessive Maritime Claims’, remarks made by Capt. J. Ashley Roach at a panel at the 1990 ASIL Annual Conference on 30 March 1990 (on file with the author).
89. An example in which the US Government decided not to force the issue did concern straits passage, but in an area so remote mat the question of passage was presumably not considered important enough to justify risking a confrontation. This concerned the Volkitsky Straits incident in 1967, in which two US Coast Guard icebreakers attempting to circumnavigate the Arctic were denied entry by the USSR into its northern territorial sea, including the Volkitsky Straits. The US issued a protest, but the cutters returned to the US. See O'Connell, op. cit. n. 44, at pp. 317–318.
90. Warships were used to escort merchant vessels through the Strait of Hormuz and in Oe territorial waters of various Gulf States in the closing stages of the Iran-Iraq War. See Wolfrum, R., ‘Reflagging and Escort Operations in the Persian Gulf: An International Law Perspective’, 29 VJIL (1989) pp. 347–394 et seqGoogle Scholar. See also Bozeck, loc. cit. n. 82 and n. 122 infra.
91. Art. 19(2) sub b of the 1982 LOS Convention and O'Connell, op. cit. n. 41, at p. 293.
92. Art. 19(2) sub e and O'Connell, op. cit. n. 41, at p. 294.
93. O'Connell, op. cit. n. 44, at p. 293.
95. Idem at p. 293. ECM is the acronym for electronic countermeausure devices which are used, inter alia, to neutralize target acquisition radar and guidance systems of anti-ship missiles, etc.
96. In 1987 Iran purchased ‘Silkworm’ anti-ship missiles from China. These missiles were subsequently deployed in the vicinity of the Strait of Hormuz. Following a number of incidents between the US and ban, in which, inter alia, a ‘Silkworm’ missile struck a US flag merchant vessel, the US Government warned that if ‘Silkworm’ launch installations ‘locked on’ to US naval vessels, mis would be viewed as an incipient attack and justify an anticipatory US strike to take out the Silkworm batteries. See A Report to Congress on Security Arrangements in the Persian Gulf, a report by Secretary of Defense Weinberger, 15 June 1987 at p. 17. ‘US ships or aircraft are authorized to defend themselves against air or surface threat whenever hostile intent or a hostile act occurs. Definition of hostile intent also includes, inter alia, radar lock on to a ship, from any weapons system fire control radar that can guide missiles or gun fire. This includes lock on by land based missile systems that use radar.’
97. O'Connell, op. cit n. 44, at p. 293.
98. Art 20, 1982 LOS Convention; see also section 2.4 supra.
99. O'Connell, op. cit. n. 65, at p. 105.
100. Churchill and Lowe, op. cit n. 75, at p. 67. Koh, K.L., Straits in International Navigation: Contemporary Issues (1982) p. 3Google Scholar; O'Connell, op. cit. n. 44, at p. 166. But note that the US has conditioned its recognition of the extension of the tenitorial sea to 12 miles upon reciprocal recognition of US navigational rights. See e.g., Grunawalt, R.J., ‘United States Policy on International Straits’, 18 ODIL (1987) pp. 445–454.CrossRefGoogle Scholar
101. Whether or not the entire 1982 LOS Convention forms an inseparable whole is open to dispute. Certainly it is viewed that way by most States and by a significant number of authorities. See e.g., Wolfrum, loc. cit. n. 90, at pp. 396–397. But a significant number of States, including the major maritime powers, view the non-seabed provisions as expressing a general consensus or even as customary law. While this is also open to dispute, it is safe to say mat certain provisions in the Convention which are based on widespread practice and opinio iuris have separately entered into customary law. Among these is certainly the regime of the tenitorial sea provided in Part n of the Convention. Churchill and Lowe, op. cit. n. 75, citing information from the US State Dept. publication Limits in the Seas state in Appendix I mat 97 States currently claim twelve mile limits (p. 353). No State disputes these claims. That would seem to satisfy anyone's criteria for customary law.
102. Corfu Channel Judgment, ICJ Rep. (1949) p. 30.
103. See Annotated Supplement to the Commander's Handbook on the Law of Naval Operations NWP 9 (1989) at 2–8-2–11 and 2–41-2–44.
104. Reported at length with approval by the Court in its 1949 Judgment. See supra, n. 102 at pp. 33–34.
105. Supra, n. 54.
106. Art. 19(2) 1982 LOS Convention.
107. See supra, section 2.4 for the distinction between non-innocent passage and non-observance of coastal State regulations. It should also be recalled that unauthorized submerged passage is not necessarily tantamount to non-innocent passage.
108. Corfu Channel Judgment, supra, n. 102 at p. 31.
110. O'Connell, op. cit. n. 44, at p. 293 states that ‘[w]arships may have to shut down search radar if this interferes with local frequencies and TV channels.’ While this is probably true under normal circumstances, it does not mean that a warship which had reason to fear that its passage would be denied or even subjected to attack would have to forego the safety of using its search radar just to avoid interference with local TV and radio. Certainly such interference would not render passage ‘non-innocent’.
111. In Corfu Channel, the Court noted that the vessels had taken up ‘line ahead’ formation, see supra, n. 102 at p. 31. This was seen as proof of a non-threatening posture on the part of the British ships. But the Court did not state that this was the only permissible formation which could be adopted within the limits of innocent passage.
114. Corfu Channel: Pleadings Oral Arguments and Documents, Vol.III, statement of Sir Eric Beckett of 12 November 1948 at p. 296. (Hereinafter referred to as Corfu Channel: Pleadings with volume number).
115. Corfu Channel: Pleadings Vol. IV, pp. 578–584.
116. Corfu Channel: Pleadings Vol. III, p. 294. (Statement of Sir Eric Beckett of 12 November 1948). Sir Eric said ‘Let me say at once that I do not attempt to justify “Operation Retail” as an exercise of innocent passage’. It should be recalled that the minesweepers were not engaged in passage, they were there to sweep the channel. The UK did not invoke Article 51 at the time of the mining nor did it resort to force against earlier provocations, although the UK did warn the Albanian Government, following an earlier incident on 15 May 1946 when two Royal Navy vessels were fired upon by shore batteries in the channel, mat if fire was repeated, it would be returned. See ICJ Rep. (1949) supra, n. 102 at pp. 30–31.
117. See Waldock, loc. cit. n. 2, at pp. 500–502 and Zoller, op. cit. n. 31, at p. 70.
118. Waldock, loc. cit. n. 2, at p. 502. The distinction made here resembles that between self-defense which is usually undertaken while an attack is ongoing (self-protection) and a reprisal which is taken after a violation of the law in order to coerce the wrongdoer into complying with the law (self-help).
119. ICJ Rep. (1949) supra, n. 102 at p. 30.
121. Nowhere in the Judgment of the Court does the Court refer to the right of self-defense. It is submitted mat had the Albanians opened fire a second time (the first time had been on 15 May, see n. 112 supra), either during the passage of the four warships on 22 October 1946 when HMS Volage and HMS Saumarez struck mines, or during the mines weeping operation of 12–13 November, that the United Kingdom vessels would have been justified in returning fire and destroying the coastal batteries. This would have been within the lawful limits of necessity and proportionality which govern the use of force in self-defense. The Court in its judgment agrees, ruling neither the preparations of the warships on 22 October for retaliating if fired upon, nor the dispatch of a covering force to protect the minesweeping operation of 12–13 November, as illegal. See ICJ Rep. (1949) at pp. 31 and 35 where the Court stated ‘The responsible naval commander cannot be reproached for having employed an important covering force in a region where twice in a few months his ships had been the object of serious outrages.’ What other purpose could the covering force have had other than to deter a further ‘outrage’ or to reply to one if another should occur?
122. In 1987, in response to numerous attacks on neutral shipping in the Gulf and Honnuz area, as well as the laying of mines in Gulf waters by the Iranian navy and Revolutionary Guards, warships of a number of Western States were dispatched to the Gulf to protect merchant shipping and sweep the area of mines. From early 1987 the number of attacks on neutral tankers and other merchant vessels engaged in trade with the Gulf littoral States rose sharply. A number of Kuwaiti oil tankers were reflagged and brought under US registry and the US Navy stepped up its presence in the Gulf and provided escort to merchant vessels — including the reflagged Kuwaiti tankers — which flew the US flag. Other States, including Britain, France, Belgium and the Netherlands, sent warships to the Gulf area. The US and French navies later amended their policy and provided escort and protection to the merchant vessels of any State that requested it. For further factual background and a legal analysis of the reflagging and escort operations see the sources cited in n. 90 supra.
123. See e.g., Bordunov, V.D., ‘The Right of Transit Passage Under the 1982 Convention’, 12 Marine Policy (1988) p. 219CrossRefGoogle Scholar; Mangone, G.J., ‘Straits Used for International Navigation’, p. 391 et seq.Google Scholar; Larson, D.L., ‘Innocent Transit and Archipelagic Sea Lanes Passage’, p. 411 et seq.Google Scholar; Grunawalt, R.J., ‘United States Policy on International Straits’, p. 445 et seq.Google Scholar; Alexander, L.M., ‘Exceptions to the Transit Passage Regime: Straits with Routes of Similar Convenience’, p. 479 et seq.Google Scholar, all in 18 ODIL (1987); Moore, J.N., ‘The Regime of Straits and the Third United Nations Conference on the Law of the Sea’, 74 AJIL (1980) p. 77 et seq.CrossRefGoogle Scholar; Churchill and Lowe, op. cit. n. 75, pp. 86–96; Treves, T., ‘Notes on Transit Passage through Straits and Customary Law’, in Bos, A. and Siblez, H., eds., Realism in Law Making: Essays in Honour of Willem Riphagen (1986) p. 247 et seq.Google Scholar; and O'Connell, op. cit. n. 44, at pp. 317–331.
124. In addition to the sources cited in a 122 supra, see in particular Lee, L.T., ‘The Law of the Sea Convention and Third States’, 77 AJIL (1983) p. 541 et seq.CrossRefGoogle Scholar, for an authoritative analysis of the customary nature of the 1982 Convention's provisions regarding straits passage.
125. See e.g., Larson, loc. cit. n. 87, at pp. 414–415; Moore, loc. cit. n. 123, at pp. 111–112; and Churchill and Lowe, op. cit. n. 75, at pp. 90–93 and 94–96.
126. In such cases the straits States have a territorial sea claim (or have limited their territorial sea claims in certain straits) to less than twelve nautical miles, as is the case with Japan with regard to the Korea Straits.
127. Bordunov, loc. cit. n. 123, citing the Italian Law of the Sea expert, T. Treves, at p. 220.
129. There can be no doubt that the transit passage regime includes passage by surface and submerged warships as well as overflight rights for military aircraft which is non-suspendable and not subject to authorization by the straits State(s). This regime does provide for the types of regulatory power mentioned in the text (fisheries and customs) and for regulations in accordance with international conventions regarding navigational safety and pollution. See inter alia, Moore, loc. cit. n. 123, at pp. 90–115. See also O'Connell, op. cit. n. 44, at pp. 327–337. These two authorities argue convincingly that, though the straits State has jurisdiction to prescribe in relation to certain matters, it has no jurisdiction to enforce (except with regard to its fishery and customs law, see Art. 42(1) sub (c) and (d) of the 1982 Convention and with regard to serious danger of harm to the marine environment by non-State vessels, Arts. 233 and 236). It is clear from the text of the Convention (Art. 42(5)) that violation of straits State or international regulations regarding navigational safety and pollution or straits State lanes regarding fishery protection and customs, etc., by a vessel entitled to State immunity (e.g., warships) engages the responsibility of the flag State but does not entitle the strait's State to take any enforcement action. Moreover, Art. 42(5) also clearly states that vessels which act contrary to such laws or regulations or other provisions of this part (i.e., regarding transit passage and the duties of vessels while engaging therein) (emphasis supplied) are responsible, but that likewise, no enforcement or protection measures are aumorized or implied. Stated simply, if a warship fails to adhere to the requirements of Art. 39 regarding transit passage this does not constitute ‘non-transit’ passage against which the straits State is entitled to take measures of protection analagous to the right of the coastal State to take action against non-innocent passage in territorial waters (Arts. 19 jo 25 of the 1982 Covention). Neither does contravention of the provisions of Art. 39 regarding the duties of aircraft and ships during transit passage degrade transit passage to the status of innocent passage thereby empowering the straits State to take measures of protection or to deny passage, as is mistakenly stated by Churchill and Lowe, op. cit. a 75 at p. 91. See Bordunov, loc. cit. n. 123, at pp. 224–226; O'Connell, op. cit. n. 44, at p. 327; and Moore, loc. cit. n. 123, at pp. 101–106, especially at pp. 102–105.
130. O'Connell, op. cit. n. 65, at p. 105.
131. Albania's attempt at closing the Corfu Channel has been referred to previously, see section 2.5 supra. Egypt closed off the Strait of Tiran in both in 1956 and 1967, see O'Connell, op. cit n. 65, at pp. 110–111. Indonesia and the United Kingdom came close to hostilities on certain occasions during the 1960s confrontation over Malaysia. On one occasion, the Indonesian Government warned that if a British aircraft carrier and her accompanying escorts were to pass through the Sunda straits, that this would constitute a threat to Indonesian territorial integrity. The British warships avoided provoking an incident and passed through the Lombok straits instead (see idem at pp. 108–109). The Philippines claim to Sabah, which were opposed by Malaysia's allies, Britain and Australia, led the Philippine Government to deny passage to Australian naval vessels through the Balabac Strait and Basilan passage (idem at pp. 109–110). In the 1973 Yom Kippur War, Southern Yemen (with Egyptian support) attempted to close off the Straits of Bab el Mandeb (idem at pp. 101–103). It should also be noted that the Iranian Government threatened (verbally and by its conduct) to close the Strait of Hormuz on various occasions during the first Gulf War, see e.g., Boczek, loc. cit. n. 82, at p. 245 and Ronzitti, N., ‘Passage through International Straits in Time of Armed Conflict’, in International Law at The Time of Its Codification: Essays in Honour of R. Ago (1987) pp. 363–370.Google Scholar
132. In 1988, Indonesia closed the Sunda and Lombok straits temporarily, but not simultanous-ly, to carry out naval exercises. See Rothwell, loc. cit. n. 86, at p. 491 et seq. This was preceded in 1970–1972 by the Malacca Straits controversy, see Koh, op. cit. n. 100, at p. 55 et seq.
133. In 1973, the US was only able to resupply Israel during the Yom Kippur war through the Straits of Gibraltar due to the closure of French and Spanish airspace to US military aircraft en route to Israel. In the Gulf War between Iraq and Iran, attacks by both belligerents on third party merchant vessels resulted in the dispatch of a large number of warships by the US, the Soviet Union and a number of Western European States to ensure passage through the Strait of Hormuz and in the Gulf. Although no threat of closure of straits occurred during (he recent Gulf War between the international coalition and Iraq, it does not require much imagination to contemplate the difficulties mat would have been posed to the States assisting Kuwait, if the States bordering Gibraltar, Suez, Bab el Mandeb, and Hormuz would have taken another position in the conflict and translated mis position into interference with or denial of unimpeded passage through the respective straits they border on.
134. See nn. 131 and 132 supra. See also O'Connell, op. cit. n. 44, at pp. 247–250.
135. ICJ Rep. (1949) (Corfu Channel Judgment) pp. 28–30.
136. Koh, loc. cit. n. 100, at pp. 5–8.
137. Far thorough accounts of the failure of the 1958 and 1960 Geneva conferences to agree to the extent of the territorial sea, and the dissension in the doctrine relating to this issue which preceded these conferences see e.g., O'Connell, op. cit. n. 44, at pp. 151–169 and Churchill and Lowe, op. cit. n. 75, at p. 65 et seq. For the controversy concerning the right of warships to innocent passage through the territorial sea, see n. 54 supra, and accompanying text.
138. The majority of opinion supports the ‘package deal’ nature of the 1982 Convention, including, e.g., Larson, loc. cit n. 87, at p. 419; Lee, loc. cit. n. 124, at pp. 566–567; Koh (quoted in idem note 3 at p. 542, Richardson ibid.); Churchill and Lowe, op. cit. n. 75 at p. 93; and Treves, loc. cit n. 123, at p. 250. Contra, inter alia, Grunawalt, loc. cit. n. 123, at pp. 445–451 and probably O'Connell, op. cit. n. 44, at p. 327. Various States including South Yemen and Iran have made clear mat they will not afford transit rights under the Convention to non-signatories. See in this regard Churchill and Lowe, op. cit n. 75, at p. 93. It should be noted, however, that the ‘package deal’ nature of the consensus leading to the Convention does not mean mat it is an inseparable whole for all time or that various rules and regimes provided for in the Convention cannot become customary law in their own right See Lee, loc. cit. n. 124, at pp. 567–568.
139. US Oceans Policy Statement of 10 March 1983, reproduced in 83 Dept. of State Bulletin (1983) no. 2075, at pp. 70–71.
140. The opinions on whether ‘transit passage’ and the straits regime provided for in the 1982 Convention reflect pre-existing customary law or have since become customary law differ widely. Grunawalt, loc. cit. n. 123, at p. 455 states that ‘[u]nlike the deep seabed mining regime created by the Convention, the navigational articles are, in large measure, a reflection of customary practice and international law.’ This view is close to the official US position, although the fact that the US has initiated a ‘Freedom of Navigation’ program which includes protests and operational assertion of navigational rights would tend to point in the other direction, i.e., mat practice is not virtually uniform in this matter, although it is in itself evidence of practice, which is significant and of influence upon third States on the part of the most important naval power. O'Connell, op. cit. n. 44, at p. 327 states that while practice ‘is not unambiguous … it verifies mat in peacetime the major straits of the world have been completely free, so that the quality of the right has … approximated to high seas passage.’ Larson, loc. cit n. 87, at p. 415 asserts that ‘[a]lthough the 1982 Convention invented the new descriptive term “transit passage”, it should be emphasized that this is essentially the further codification and development of customary law as set forth in the Corfu Channel************************************* case.’ It should be recalled, however, mat the Court determined that vessels had a right to (non-suspen-dable) innocent passage through straits such as Corfu and said nothing regarding submerged passage by submarines or overflight rights, so that it seems that ‘transit passage’ could reflect as much development in this regard as it does codification, although the significance of this must not be overemphasized, since the UK did not claim that it possessed rights of overflight and submerged passage in the Corfu Channel. However, whether mis would have been its position in relation to a major strait where such rights were in fact exercised (e.g., Gibraltar) (see O'Connell, op. cit n. 44, at pp. 321–322 and 335–336) is doubtful. Whether or not the Court would have recognized such a position is, of course, unknown and belongs to the realm of speculation. Another group of authors casts doubt on the customary nature of ‘transit passage.’ Lee, loc. cit. n. 124, at pp. 557–559, asserts that the regime of non-suspendable innocent passage represents customary law and contends further at pp. 559–566, that the regime of transit passage neither represented pre-existing custom, nor that it has since hardened into a customary rule. Churchill and Lowe, op. cit. n. 75, at pp. 93–94 reject the view that the transit passage, regime reflects or has entered into customary law. Moore, loc. cit n. 123, at pp. 85–86 points out that the straits passage regime which existed prior to the UNCLOS III negotiations was ‘ambiguous’ and ‘messy’ and did not guarantee the freedoms of overflight or submerged passage (among other improvements) which are provided for in the 1982 Convention. Yet another group of authorities points to the impact of the UNCLOS III negotiation process and of the Convention itself and stresses the influence of subsequent practice and opinio iuris upon the question whether transit passage has achieved, or is well on its way to becoming a customary norm. Treves, loc. cit. n. 123, at p. 251 states that the provisions of the Convention which reflect ‘trends in practice’ influence the behavior of States ‘even before the entry into force of the Convention and even beyond the circle of State Parties.’ He then goes on to point out (pp. 253–257) how this is the case, both with regard to naval powers and maritime States which were the principal supporters of the transit passage regime and with regard to straits States such as Greece, Spain, Morocco and others, which while first opposed to the regime of transit passage, eventually dropped their objections. This, says Treves (at p. 254) ‘highlights the bargain struck between the [S]traits States and the maritime powers: acceptance by the latter of the environmental and navigational concerns of the former in return for acceptance by the [S]traits States of the rules of transit passage.’ This is further reflected in agreements between States regarding a significant number of straits. Treves points (at p. 254) to the agreement between the States bordering the Torres and Malacca Straits granting a regime of passage which corresponds to ‘transit passage’. Other such agreements have since been concluded with regard to other important straits such as, e.g., Dover. See in this regard Anderson, D.H., ‘The Right of Transit Passage and the Strait of Dover’, in Nordquist, M.H., ed, Contemporary Issues in United States Law of Sea Policy (1989) p. 89 et seqGoogle Scholar. The abovestated position, mat the regime of transit passage is in the process of emerging into custom, is further expressed by, inter alia, Nandan, S.N. and Anderson, D.H., ‘Straits Used for International Navigation. A Commentary on Part III of The United Nations Convention on the Law of the Sea 1980’, 60 BYIL (1989) pp. 159–170Google Scholar, and by Caminos, H. ‘The Legal Regime of Straits in the 1982 United Nations Convention on the Law of the Sea’, 205 Hague Recueil (1987) p. 178 et seq.Google Scholar, especially at pp. 231–232, where he states ‘[w]hile State Practice does not clearly present a pattern reflective of a generally accepted legal norm, it may be said mat practice consistent with the transit passage regime of the 1982 Convention demonstrates that its provisions are well into the process of emerging as a regime of customary international law.’ Hence, while the pre-1982 passage regime through straits was doubtful and ambiguous, it is likely that the negotiations leading to the Convention, the provisions of Part III itself, and especially the practice of States during and since the UNCLOS III negotiations have influenced and continue to influence the development of a regime of passage corresponding to ‘transit passage’ in the direction of a customary norm with regard to the major straits.
141. See nn. 100 and 101 supra and accompanying text.
142. In addition to the comments in this respect in n. 140 supra, a number of other incidents are of importance. During the 1973 Yom Kippur War and the 1986 US raid on Libya, the air corridor in the Strait of Gibraltar was utilized by the United States without protest or interference. Submarines of various navies also routinely pass through this and other straits ‘in the normal mode’. See, inter alia, O'Connell, op. cit. n. 65, at p. 106 and Alexander, op. cit. n. 54, at p. 144. In the Strait of Hormuz where the navigational rights of maritime States were threatened during the first Gulf War between Iraq and Iran, and during the second Gulf War between the international coalition and Iraq, the straits and Gulf were the theater of massive naval deployment and aerial operations by a numer of States (including overflight of the Strait) without significant protest except, of course, on the part of, respectively, Iran and Iraq.
143. Caminos, loc. cit. a 140, at pp. 231–232.
144. Treves, loc. cit. n. 123, at pp. 252–253.
145. See supra, p. 147 et seq. See also O'Connell, op. cit. n. 65, at pp. 104–106.
147. Violation of coastal State regulations, even under normal circumstances, does not render passage non-innocent: see section 2.4 supra. Under the circumstances indicated, it would certainly constitute a justifiable measure of self-protection.
148. Moore, loc. cit. n. 123, at pp. 102–103: ‘Articles similar to [Art] 25 and [Art] 30, which permit coastal States to interfere with passage under certain circumstances, are notably absent’
149. Ibid.: ‘it is entirely consistent with that text and clearly within the specific language of Articles 31 and 42(5) that the flag State shall bear “international responsibility” for such violations, and that enforcement shall be solely through the normal diplomatic (and, if available, judicial) channels.’
150. See Froman, loc. cit. n. 48, at pp. 682–683 fh 268 and O'Connell, op. cit n. 65, who at p. 143 sets out a number of criteria for assessing the innocence or lack thereof of submerged passage through territorial waters including ‘the reasonableness of the use of the territorial sea for transit purposes … the political climate and most important, the submarine's track.’ If passage through straits is not reasonable, it is difficult to see what is. We are assuming here, of course, that the submarine proceeds directly along its submerged course through the strait without leaving the strait to enter territorial or internal waters outside the strait. It is also worth pointing out that there are no reported instances of a strait State taking military measures to prevent or halt submerged passage by a foreign submarine through straits which are claimed as territorial waters. While it is true as Churchill and Lowe point out (op. cit. n. 75, at p. 94) that strait States are often unaware of submerged passage, it is not likely that they are never aware, and the absence of any practice is indicative of a reluctance to equate submerged passage through straits with submerged passage in other areas claimed as territorial sea.
151. Section 2.4 supra.
152. However, if warships were not engaged in passage, but in activities such as gathering intelligence, landing persons on the coast, and so forth, the strait State would be entitled to require them to leave their territorial sea immediately, and to ‘escort them to the door’ as it were.
153. While authorities differ as to the precise juridical status of straits prior to and since the UNCLOS negotiations (see n. 140 supra and accompanying text) all are in agreement mat practice indicated a status of straits which was not identical to that of the territorial sea elsewhere. This is also reflected in Corfu Channel (ICJ Rep. (1949) pp. 29–30) where the Court determined mat a right of passage for foreign warships existed although it declined to rule on the broader issue of passage of warships through the territorial sea. The words ‘something more’ with regard to straits passage appear in Froman, loc. cit. n. 48, at p. 644.
154. Examples of such activities would, of course, include the threat or use of force, blockade, laying of mines or any other activity which constituted an armed attack or aggression.
155. High Seas Convention of 29 April 1958, 450 UNTS II, (Art. 2), hereinafter referred to as the 1958 High Seas Convention; Art. 87 of the 1982 LOS Convention.
156. O'ConnelL op. cit. n. 44, at p. 809; Churchill and Lowe, op. cit. n. 75, at p. 314.
157. O'Connell, op. cit. n. 44, at p. 809 and also p. 796 et seq. See also Churchill and Lowe, op. cit n. 75, at pp. 166–168.
158. Eg., Art. 301 (providing that States must observe the prohibition of the use of force contained in Art. 2(4) of the Charter in the exercise of their rights provided under the 1982 Convention), Art. 88 (reserving the high seas for peaceful purposes) and Art 141 (doing likewise for the international seabed area).
159. E.g., Nuclear Test Ban Treaty 5 August 1963,480 UNTS 43; Treaty of Tlatelolco (Treaty for the Prohibition of Nuclear Weapons in Latin America), 634 UNTS 281; and the 1971 Treaty on the Prohibition of the Emplacement of Nuclear Weapons and other Weapons of Mass Destruction on the Sea Bed and Ocean Floor of 11 February 1971, 10 ILM (1971) p. 145.
161. ICJ Rep. (1985) (Continental Shelf Case, Libya/Malta) p. 13 at p. 33. See also Kwiat-kowska, B., The 200 Mile Exclusive Economic Zone in the New Law of the Sea (1989) p. 27 et seq.Google Scholar
162. Kwiatkowska, op. cit. n. 161, pp. 4–6. Art. 58(1) of the 1982 Convention specifically guarantees these freedoms.
163. Booth, op. cit n. 85, at pp. 39–45.
164. Booth, op. cit. n. 85, at p. 45.
165. Booth, op. cit. a. 85, at p. 137–138 defines naval diplomacy as ‘the use of warships in support of foreign policy, but by means of “signalling” rather than shooting. It therefore involved employing them in different modes so as to communicate one's intentions, deploying mem in order to negotiate from strength in a crisis or more generally to provide bargaining counters, using mem to increase one's influence — building options, or displaying them for supportive and representational tasks of various kinds.’
166. Far an analysis or several historical examples of the use of warships in this role see generally O'Coimell, op. cit. n. 65. More recent examples of the use of warships in this type of role include, inter alia, the dispatch of the Seventh Fleet to the Arabian Sea and the waters around Hormuz at the time of the Hostage Crisis in 1979–80, the dispatch of warships by both superpowers to the Eastern Mediterranean in the Yam Kippur War and the holding of periodic maneuvers by NATO in Norwegian waters during the 1970s and 1980s. An example of how a failure to dispatch or withdrawal of a warship can also conduct a signal is perhaps to be seen in the example of the withdrawal of the British icebreaker HMS Endurance from the South Atlantic in the period preceding the Falklands/Malvinas War and the effect this may well have had on Argentinian perceptions of British resolve to maintain sovereignty over the Falklands if challenged. See Middlebrook, M., Task Force: The Falklands War 1982 (1987) p. 32.Google Scholar
167. See Booth, op. cit. n. 85 (citing MccGwire), at pp. 141 and 157.
168. O'Connell, op. cit. n. 65, at pp. 7–8.
169. Boom, op. cit. a 85, at p. 170 et seq. One clear requirement for the future which will effect ‘coastal States’ as well as the traditional naval powers will be in the area of constructing and maintaining substantially more significant numbers of offshore patrol vessles, and helicopters for a variety of law enforcement tasks in the territorial sea and contiguous zone as well as in the EEZ. See O'Connell, op. cit n. 44, at pp. 1062–1065 for an assessment of the characteristics of effective coastal law enforcement vessels.
170. Fisheries Jurisdiction (UK v. Iceland) ICJ Rep. (1974) p. 3; Fisheries Jurisdiction (FRG v. Iceland) ICJ Rep. (1974) p. 175. See for an Icelandic perspective Jonsson, H., Friends in Conflict (1982).Google Scholar
171. See inter alia, Spinnato, loc. cit. n. 82. For a critical assessment of US policy in the incident see Franconi, F., ‘The Gulf of Sirte Incidents (US v. Libya) and International Law’, 5 Italian YIL (1980-1981) p. 85 et seqGoogle Scholar. For an authoritative analysis of the concept of historic or vital bays see Bouchez, L.J., The Regime of Bays in International Law (1964) p. 199 et seq.Google Scholar
172. See Kwiatkowska, op. cit n. 161, at pp. 204–212. See generally Booth, op. cit. n. 85, Ch. VII, ‘EEZ's and Naval Diplomacy.’
173. Under the 1982 Convention (Art. 220) the coastal State has certain limited enforcement powers with regard to foreign flag non-State vessels in relation to marine based pollution while Art. 221 gives the coastal State rights to protect its coast against pollution resulting from shipwrecks. See Kwiatkowska, op. cit. n. 161, at pp. 181–182. However, it is not inconceivable that States might take measures which go beyond the enforcement powers attributed under the convention, especially in relation to nuclear powered vessels or vessels carrying certain types of cargoes. This could lead to attempts to exclude such vessels or subject their passage through the EEZ to prior authorization. This in turn, could cause flag States to take measures to protect their right of free navigation.
174. Examples of armed conflicts which had a maritime dimension since 1945 include the Algerian Conflict, the Netherlands-Indonesian confrontation over the status of Western New Guinea in the late 1950s and early 1960s, the Vietnam War, the 1971 Indo-Pakistan War, the Middle East Wars of 1956, 1967 and 1973, the Falldands/Malvinas War of 1982 which was primarily a naval-maritime conflict, and the two Gulf Wars.
175. See nn. 82, 90,122,131 and 133 supra with accompanying text.
176. The extent to which the law of armed conflict is still applicable under the UN Charter is controversial. Some authorities, e.g., Lauterpacht, E., ‘The Legal Irrelevance of a State of War’, 62 PASIL (1968) p. 62Google Scholar and Schindler, D., ‘State of War, Belligerency, Armed Conflict’, in Cassesse, A., ed., The New Humanitarian Law of Armed Conflict (1979) p. 3Google Scholar, take the position mat the law of warfare (including the law of naval warfare) has become (largely) irrelevant under the Charter system. This author with respect, cannot but disagree with that position. The law of armed conflict is of continued relevance and applicability in any situation in which armed force between States (or other entities entitled to engage in hostilities) takes place, and neutrality and belligerent rights of blockade, search and seizure are therefore also of continued relevance, unless the UN Security Council acting under Chapter VH of the Charter determines otherwise. Brownlie, op. cit. a 8, at pp. 404–408; Dinstein, op. cit. a 9, at pp. 26–32; Greenwood, C., ‘The Concept of War in Modern International Law’, 36 ICLQ (1987) p. 283 et seq.CrossRefGoogle Scholar; Lowe, A.V., ‘Some Legal Problems Arising From Using the Seas for Military Purposes’, 10 Marine Policy (1986) pp. 182–184CrossRefGoogle Scholar; and O'Connell, op. cit. a 44, at p. 1094 et seq., are just some of the authorities who argue that the law of (naval) war or armed conflict are of continuing relevance and applicability under contemporary international law. This position finds support in the decision by the International Court in the Nicaragua case which dealt, inter alia, with the distinct applicability of the law of (naval) warfare. See ICJ Rep. (1986) p. 14 at pp. 112–115. The question of the rights and duties of neutral States to safeguard their neutral or non-belligerent status including the exercise of rights of armed self-protection and affirmation of neutrality, except in relation to escorting merchant vessels through international straits and sea lanes (see a 122 and accompanying text supra) and of belligerent States to exercise belligerent rights falls, however, outside the scope of this essay.
177. Franconi, loc. cit. a 171, at pp. 101–103 with accompanying notes.
178. See the diagram on p. 173 infra.
179. Zoller, op. cit. n. 31, at p. 14.
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