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Preceding pages: A 210-foot Coast Guard cutter turns sharply away from a large Soviet fishing ship some 90 miles south of New Bedford, Massachusetts, on the morning of 1 March 1977. That was the day the United States put into effect the 200-mile fisheries zone around the coasts of this country. Such zones are common now. They influence the operations of fishermen, of those who seek oil and metals in the ocean depths, and in our country, of the Coast Guard. Will they also influence the operations of merchant ships and of naval forces?
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JL he Third Law of the Sea Conference, at its successive meetings since 1974 in Caracas, Geneva, and New York, has revealed, perhaps more graphically than any other recent international event, the extent of the current incoherence in international law. For the past two hundred years there have been two main streams of doctrine respecting the ultimate nature of the international legal system: There has been the Grotian tradition of moral order, whereby the rules of international law have been elucidated by reference to what the society of mankind requires for its regular development; and there has been the Vatellian tradition of acquiescence and consent, whereby these rules have been promulgated by reference to the practices of States.
The difference between the two has been obscured in practice by the common doctrine of opinio juris, that is, the doctrine that supposes that governments act in response to legal conviction and not from motives of power and gain. This supposition enabled jurists to bridge the gap between describing what States do and indicating what they ought to do—so raising the analysis from the level of anecdote to the level of the normative.
The doctrine of opinio juris provided international lawyers with a workable methodology, which was, in past ages, best observable in the case of maritime law: Practice established the freedom of the seas and the nature of the territorial sea, although admittedly it did not establish its geographical extent. But the methodology has now collapsed with the doctrine that prompted it. Governments in the matter of the Law of the Sea no longer act by reference to what they think the law is: They set out deliberately to
break with the traditional rules in order to bring about the changes which they seek. How else can one explain the phenomenon of the 200-mile Exclusive Economic Zone? If not yet an established institution of international law, it is certainly on the point o becoming one. It is the product of a State practice that is avowedly based upon power and not upon formal rules. The power may be justified on the bas's of moral, sociological, or other considerations, but n is not based on deference to opinio juris.
This has plunged the theorists into perplexity- The alternative methodology to that of opinio juris *s “effectivity”: A rule is made or changed simply by making it effective, and the only way to make lC effective is by the use of force. That was pointed out by Judge Read in the International Court in the Anglo-Norwegian Fisheries Case in 1951, when he said that in maritime law “the only convincing eVi' dence of State practice is to be found in seizures* where the coastal State asserts its sovereignty over the waters in question.”
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That is a disquieting doctrine, because it suppose5 that the law is the product of force and not the curb of force: It puts a premium upon unilateral action* and it leads to the sorts of struggles which have occurred over the Icelandic fisheries and causes °ne gloomily to infer that, whatever changes are made ac the Law of the Sea Conference to underpin the unilateral actions which are occurring daily, resistance can only be intensified and disputes thereby magnified and provoked. Since 1945 there have been over 100 instances of the coercive uses of navies, 1,1 volving around 50 different navies and, of these* around four-fifths have been of a supposedly ^ enforcement character, or have been related to leg9 disputes over resources.
It would be rash to suppose that the Law of tb^ Sea Conference will settle claims to rights in all 0 the existing or potential disputes concerning ^ many subjects which it is attempting to encompa55’ There are limits to what can be expected of interna tional law. It cannot solve all of the problems of tbe world, as many developing countries appear t think, and it cannot reconcile interests that are cb rectly opposed unless claims, demands, and asp'r9 tions are moderated. And of that disposition there little indication. Even if the Conference were to Pr°^ duce a treaty, that would not result in a code 0 existing law but would be a frank piece of legislati°n which would fail to attract the acquiescence or c0flf sent of all countries, perhaps for a long time perhaps forever. It can only usher in a period of d<5 lusionment and renewed struggle. j
The Geneva Conventions of the Law of the Sea
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, were supposed to be, at least in the main, a not* 1Cat'on r^e law> and f°r that reason they did contain any denunciation clauses. Yet of all of
lest C°Untr‘es at the Third Law of the Sea Conference
and t^lan °ne tP'rc^ have ratified or acceded to them
most repudiate at least some of their rules, oer *
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whuuthorities through treaty, but that expedient, e effective in some instances, has apparently
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^ttegal bas even insisted, against the opinion of the nCretary~General of the United Nations, upon de- ncing them; and, following that gesture of re- rrhle^*00’ ^as c^a‘me^ both a territorial sea of 150 tionS an<^ an exc^us*ve economic zone of an addi- f°rrn ^ m‘les- This is unilateralism in an extreme to. but it is by no means aberrant or without some Plau*ible grounds.
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r) whatever may be the criticisms which one q0yoffer about the way in which the Law of the Sea jnerence is being conducted, and of the confusion st'll the subject has fallen doctrinally, it must
and 6 recoSn'ze<^ that rapid technological growth have C^an£‘nS economic and social circumstances tendered the old rules outmoded. Those old Seas ’ 0n the whole, magnified the freedom of the be h fCt U *S ev‘^ent that absolute freedom cannot e ended when the result would be the devasta- econ °fflshery resources and the disruption of the l°Cai°,[n,es and societies of countries dependent upon to 1 ,Shmg- The course of wisdom would have been Ve such questions by developing regional fish
fishing powers have been too ftsh at°T' If these find themselves deprived of haeT r’Shts off countries such as Senegal, they may e °nly themselves to blame.
eCoe difficulty about drawing rules of law from js °mic and sociological contingencies is that this trjj3°rrietbing that can work both ways, so that distil UtlVe justice is likely to be the primary victim of t0policy of unilateralism to which the law is prone 'n T e^ect these days. The Icelandic Fisheries Case e International Court in 1974 highlights this, ‘dly^ tWe^ve judges held that Iceland could not val- t0 ^assert a 50 mile claim to exclusive fisheries so as t0 *Ve away British and German fishermen al- ollser- But the reasons given for this were so vari- afteras t0 leave the law in as confused a condition fj^ as before the case. The Court held that exclusive tya$er^ 1'mits extended only to 12 miles: That figure actiarr,ved at by recording the pressures of unilateral lirni^nS durin« tPie l^bOs which had established that eff ’ anc^ so rbe Court itself endorsed the doctrine of PlatT'^’” an<^ *n doing so provided a juridical 0rm for Iceland to consolidate eventually a 200-mile limit. Beyond 12 miles, the Court said, Iceland had only preferential rights, which meant that an allocation of fishing to countries with traditional fishery rights was incumbent. The problem with the case is that of these twelve judges, six, mainly from countries with existing 200-mile claims, indicated that in their view the Iceland case was a special one because Great Britain and Germany has established interests there. The inference is that in the waters of Argentina or Uruguay there might not be any foreign entitlement whatever.
As it happens, the Law of the Sea Conference seems to have paid scant regard to what the International Court said. It must be conceded that the Court’s influence on current international law is diminishing, and in matters of the Law of the Sea may altogether disappear, because the Court’s integrity is so widely questioned. That is largely the Court’s own fault, but the fact remains that there is no guide through the thickets of the law that will remain after the Law of the Sea Conference other than the Court, and there is no other discernible instrument for uni- versalising the novel rules that may emerge.
Yet, however irrelevant the Court’s judgment in the Iceland Case may seem, the Court was, in one basic respect, consonant with the predominant trend in enunciating a preferential rather than an absolute rule for the zone beyond the territorial sea, and also in regarding twelve miles as the limit of inherent exclusivity of coastal State authority. That, in essence, is how the notion of the exclusive economic zone and the rule about the extent of the territorial sea appear to be coming out in the Law of the Sea Conference.
The main thing to recall about the exclusive economic zone is that it is not exclusive as far as fishing is concerned: It is preferential. The current text at the Conference requires the coastal State claiming a 200-mile limit to establish two levels: There is first the level of optimum yield, which is a combination of the factor of maintenance of stocks which can produce the maximum sustainable yield and of relevant environmental, economic, and sociological factors. Secondly, there is the level of capacity of the local fishing industry to harvest the living resources of the zone. The difference between these two levels is to be allocated to foreign fishing according to fishery agreements which are to be negotiated. Whether countries with traditional interests are to get the whole of this allocation, or preferences to it as against newcomers, remains unclear, and it is with respect to questions such as this that State practice will elaborate upon whatever the Conference may produce.
160
U.S. Naval Institute Proceedings, Naval Review 1977
So far, the practice has been thin and variable. The Latin American claims antedate the Law of the Sea Conference, and so do not overtly provide for a foreign allocation, although in practice this is usually granted under license. Some of them are also tantamount to territorial sea claims, so that in the eyes of the local law such allocations are not obligatory. Nonetheless, they should be taken into account as a factor in the practice in States. Iceland’s legislation provides for no allocation whatever, but in the cases of Germany and Belgium this has been granted by treaty, and the European Economic Community in November 1976 began negotiations on the part of the United Kingdom for a comparable allocation of tonnage.
On the other hand, Mexican legislation establishing an exclusive economic zone for that country reflects the text of the Conference, and provides for such an allocation. The Fisheries Management and Conservation Act of the United States, which came into force on 1 March 1977, takes a different line. It establishes a 200-mile zone around the United States for fisheries only; it envisages an exchange of allocations only with countries which recognize that claim and whose own maritime claims are recognized by the United States; and the exchanges envisaged are to be on the basis both of reciprocity and preservation of traditional fishing rights of Americans. This linking of reciprocity with traditional rights introduces a novelty, and it is clear that reciprocity and traditional rights will operate differentially with respect to different countries.
The European Economic Community has established a 200-mile limit for its members and made it clear what legal elements will go into it. The preferential character of the zone will probably be established in international law. But that is likely only to be productive of more disputes, not only among the Latin Americans, who may assert their rights to be exclusive, but also among the claimants for allocations. That, in fact, is what the last Cod War was all about. Iceland and the United Kingdom disputed, on a scientific basis, both the calculation of the optimum yield and the calculation of the capacity of the Iceland fishing industry. Since no agreed upper or lower level was ascertained, there was controversy over the amount available for allocation to British fishermen. The debilitating effects of the resultant dispute on the Royal Navy’s capability is too well known to need restatement. It is an indication of what could happen on a global scale, for agreement on the two levels is not likely to be easily reached anywhere, and especially where the coastal State lacks the scientific resources to ascertain the levels
objectively. And that will be in most cases.
The exclusive economic zone is the product of the bringing into coincidence of two trends which m'" tially were quite separate from each other. The tren towards coastal State preferential rights for fisheries is one. The other is the trend towards monopoly respecting the mineral resources of the seabed. Mosc coastal States in the world have been interested only in pushing in the direction of local control the 1^ relating to fisheries, since they already had exclusive rights in the continental shelf under the waters. The resolution of the General Assembly of the Unite Nations of December 1970 imposing a moratorium on deep-sea mining beyond the limits of nations' jurisdiction directed attention to what were the lnE' its of national jurisdiction. At that time these were either the limits of the territorial sea or of the continental shelf; but since minerals were exploitable beyond the limits of both in many cases, mining interests found it preferable to support coastal State claims to extended limits of national jurisdiction 1,1 order to get secure title by agreement to explore an exploit while avoiding the moratorium. A coinc1' dence of interests as between coastal States and the few countries with the technological capacity to explore and exploit in deep waters thus led to the pr°' motion of 200-mile claims for seabed as well as f°r fishery purposes.
The result is somewhat incongruous: It leads t0 exclusivity with respect both to sedentary organism5, such as shellfish and lobsters, and to non-living natural resources, but to preference only with respect t° the other living resources (mainly fin fish) in sue'1 part of the zone as is also continental shelf. This d'5' tinction in the legal attributes of the various elements of the zone may prove to lead to distinction5 in the matter of the quality and scope of the power5 of the coastal State,j and perhaps even in the matter of the rules for drawing boundaries as between adja cent and opposite States whose respective 200-m'b limits overlap.
The 200-mile zone has usually been envisaged 1(1 the case of open coasts, such as that of Peru. How |[ -v, will work out in practice in confined areas like H
Mediterranean is unclear. The rules for continent*1 s shelf boundaries may, in such cases, yield result which represent a satisfactory apportionment of sea bed resources but which may contradict fundame11 tally the interests of the respective States in fished, resources of the exclusive economic zone, and, 0 course, vice versa. If the seabed and the waters are (0 be linked, as the doctrine of the exclusive econom^ zone envisages, the result may be embarrassment an contradiction; yet if they are separated, so as to pr°
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to the zone and the section devoted to the con-
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Qlf'e deferent jurisdictional limits overlapping each th er' n0t °n^ w*^ cf*e integrity of the concept of exclusive economic zone be affected, but com- leCX,ty W‘H be added to the already complex prob- s of law enforcement. The conundrums likely to r°nt many States are only beginning to be recog- e for example, in the confined waters of the nerranean traditional fishing interests do not ntide with the tests for delimitation of the conti- ^il a shelf: Any boundary agreements in such cases eseither be to the detriment of one or other inter- r> fishing or mineral exploitation, or will involve Clple boundaries for which the concept of the ex- usive economic zone does not allow. i 6 *nk between the seabed and the waters of the te^u^IVe economic zone is at present indicated in the 0p erore the Conference only by means of a piece awkward cross-reference between the section de-
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Tu^ t0 *mPorted into the text on the zone, ton *S means rhat. f°r all practical purposes, the tjJa Ist °f the exclusive economic zone will absorb siru: C^e cont*nenta^ shelf for most coastal States,
e only a few of these have continental shelves that _ tnd beyond 200 miles. But for those that do, the
tempts have been made to put bounds to the extent of the continental shelf in such cases, in order to gain the maximum area of the deep seabed for attribution to a Seabed Authority which new body is intended to act on behalf of all nations in granting permits for exploration and exploitation.
These attempts have not been successful, and the doctrine of “natural prolongation” formulated by the International Court in the North Sea Continental Shelf Case in 1969 has been adopted in the text before the Conference to indicate the outer boundary of the continental shelf when it is more than 200 miles from the coast. This is now to be, as it probably always was, the outer edge of the continental margin, although whether this means the base of the continental slope or of the continental rise or some other terminus remains to be seen (see sketch). The result of this combination of 200 miles and continental margins will be to withdraw from the Seabed Authority the great majority of the exploitable riches of the ocean bottom, except for the famous manganese nodules.
This is an incongruous result in the light of the purpose for which the Law of the Sea Conference was called. It will be remembered that it had its genesis in the work of the Seabed Committee of the United Nations in 1968, which was set up to consider how
to avoid a scramble among the technologically advanced nations to seize the mineral wealth of the ocean floor which had become, or was thought shortly to become, accessible to advanced techniques of exploitation. The United Nations was moved to proclaim these resources to be the “common heritage of mankind,” meaning that their benefits were to be distributed to nations incapable of exploiting them, upon some basis of need and some claims of distributive justice. To make the exercise worthwhile it was necessary to curb the expansion of national jurisdiction in the sea, but that proved to be impossible.
All that is left of the ocean floor to be designated as the “common heritage of mankind” is the abyssal seabed more than 200 miles from any country’s coast. This leaves much less available to become a cornucopia for developing countries than was initially hoped and supposed.
The Conference having been thus diverted into bringing about exactly the opposite of what was if' daily intended, interest in the proposal to set up a Seabed Authority has tended to wane, although the structure and powers of the Authority is still one °‘ the gravest points of dispute at the Conference. ^ monstrous creation is envisaged that will prove to be immensely expensive, with powers that are difficult to harness if they fall into the hands of intemperate delegates; and this creation is mainly for the purpose of diverting the harvest from manganese nodule5 away from the coffers of the rich countries. Scept*' cism as to how this will work out has matched the decline in interest.
Much more serious than this are the question5 posed by the emergence of the concept of the exclU' sive economic zone with respect to the scope of jubs' diction of coastal States. Since the time of Grotiu5 international law has struggled unsuccessfully to a stable basis for the exercise of power beyond the limits of national sovereignty; and since the codifica' tion exercise began on the Law of the Sea in tbe 1880s this doctrinal problem has bedeviled debate- There is nothing new about the idea of extended zones of jurisdiction. They existed over vast distant5 in the seventeenth century; and over varying d'5' tances for different purposes in the eighteenth ceU'
ry- But only the concept of sovereignty was able to them in conjunction, which is why they all th^ntually resolved themselves into the concept of terntorial sea. Now we are returning to the re- se^ne a multiplicity of zones beyond the territorial met We afe ob tbe questions resur-
Whatever some people may seek to argue to the Contrary, the exclusive economic zone, because it is jCyond the limits of sovereignty, remains high seas. <, may be that international law does invest coastal ates with exclusive or preferential rights over the z°ne, but this does not mean that there is the same SOrt of jurisdiction over it as there is over the territorial sea, even for the purpose of managing and con- servjug the resources. There may be no problem °ut legislating for this purpose, but there is a Pmblem about enforcement of the law. For example, ls difficult to enforce a prohibition on fishing if , nly tbe act of fishing is prohibited, for it is easy to au in nets. So, there will also be a tendency to ^r°hibit actions associated with fishing, but which
0 n°t constitute Fishing.
What limits are there to State power? There is a ar distinction between the act of fishing and the r °f preparing to fish or that of dealing with fish er they have been caught. All of these actions ^"Kht be prohibited in the territorial sea, but their du fU°’t‘on ‘n the exclusive economic zone might re- ofCt t^C ^reedom °f navigation which is an attribute die high seas. Admittedly, in the case of twelve-
1 e fishery limits overlapping three-mile territorial ^ s> this has occurred, notably in the legislation of . stralia, which prohibits the cutting up or packag- Orf1 ^1S^' Within this limit it might be justified ^ tbe argument that influenced the International </)Urt in the Iceland Case, namely, that the coastal
ate *s entitled to a twelve-mile territorial sea, and lc claims less it is at least entitled to plenary com- ctence io respect of the one territorial jurisdiction . Ich it has chosen to exercise. But, beyond twelve n,,Ies that argument cannot be made.
question of hot pursuit is also likely to be ^r°clUcfive °f controversies. At present this right is ercisable only in respect of breaches of law com- tted in the territorial sea, although for purposes of is r° customs’ quarantine, and immigration it ar8uable that a right of hot pursuit arises if a law Pccting these matters is broken in a contiguous ne between the limits of the territorial sea and Ve miles. But there is no text authorizing hot p Suit for breaches of fishing laws committed in ^ lng zones adjacent to the territorial sea, and °ubts about this arise in the case of the exclusive
economic zone, although the text before the Law of the Sea Conference provides for it. The problem may not prove to be serious because of the distances involved, but that it will give rise to disputation can hardly be doubted.
However the text which might be adopted at the Conference may eventually express it, the quality of the coastal State’s authority with respect to the exclusive economic zone will remain ambiguous. A lesson may be drawn in this respect from the recent case between Greece and Turkey in the International Court, respecting the continental shelf of the Aegean Sea. Turkey conducted seismic tests in the area of the continental shelf which is claimed by Greece, setting off explosions in the water from a research ship. Greece argued that this was “exploration” of the continental shelf, which is a right exclusive to the possessor of the shelf, and sought an injunction from the Court against a continuance of this activity on the part of Turkey, as well as on other grounds. The Court declined to enjoin Turkey for the reason that seismic tests do not impair the rights of the coastal State. This event has revealed the ambiguity in the notions of “exploration” and “scientific research.” It has posed the question when does “exploration” begin and “scientific research” end? Only when drilling commences?
The text before the Law of the Sea Conference seeks to overcome this ambiguity by giving the coastal State control over scientific research as well as over exploration and exploitation, conservation and management, within the 200-mile limit, but it remains to be seen how successful this extension of coastal State authority proves to be. The scientific community will be repelled by the threat to freedom of investigation, but, apart from that, the Greek- Turkish case has revealed that the mechanism of international control may not be allowed to come into operation until the threat to the rights of the coastal State becomes really serious. If that be so, there will be a tendency for governments to assume the role of law enforcement themselves without reference to international bodies. Two of the judges in the Greek- Turkish case recorded their apprehensions about this implication of the Court’s failure to order an injunction against Turkey.
These doubts as to the quality and extent of the coastal States’ rights in the 200-mile limit have given cause for disquiet to the major nations respecting the freedom of navigation. That freedom was won on the high seas only after a long struggle, and not, indeed, until the end of the slave trade era in the nineteenth century. It is threatened not only by the curbs being placed upon exploitation of natural
164 U.S. Naval Institute Proceedings, Naval Review 1977
resources but by indications that these curbs may be extended to uses of the waters generally.
If the coastal State has exclusive rights to conserve and manage fisheries within the 200-mile limit, it is at the least plausible to suggest that it has the right to prevent damage to these resulting from deliberate or accidental discharge of pollutants. For, if the fish are killed by oil or radioactivity, what is the benefit to the coastal State of the right to determine the amount that may be caught? The fear is that coastal States may, on the pretext of conservation, legislate to prohibit the emission of substances from passing ships, or the cleaning of tanks, and may even lay down standards for the construction of ships so as to minimise the risk of pollution. How far this threat is realistic, or could be realised in practice, or would incommode shipping, is unclear, but it is not doubted that the risk arises from the text before the Law of the Sea Conference.
The question of marine pollution is a particularly emotive one, and the facts warrant critical examination. An issue arises between the existing system, which allows for coastal State control over the areas subject to sovereignty—that is, territorial and internal waters—and for flag State control elsewhere— that is, control by the government of the ship’s nationality.
The clamour on the part of coastal States for an extension of coastal State jurisdiction over shipping beyond the territorial sea is the product of a supposition that flag States do not legislate effectively for their ships, or do not police their laws, or are not in a position to police them. Whatever substance there may be in this charge, it is still questionable whether the evils of deliberate or accidental discharge of pollutants would be remedied more successfully by giving coastal States jurisdiction. For, the problem does not arise because there is insufficient law: The various Conventions on pollution which are administered by the Intergovernmental Maritime Consultative Organization are quite adequate to deal with the problem. Nor does it arise from any unwillingness on the part of shipping nations to adopt these Conventions: On the contrary, they are the countries which do adopt them—the flag of convenience States being prominent among them. The coastal States which clamour most are those most likely not to have troubled to ratify the conventions, so that, if there is a defect in the legal system, they are major contributors to it.
There remains, of course, the question of the enforcement of the conventions. If this is in fact inadequate, the problem is one of public administration, and not of law, and the question is whether the administrative facilities available to coastal States are likely to produce better results than those available to the flag States. When there is an oil spill the problem is usually one of evidence of breach of the law. It is supposed that coastal States are in a better position to collect this than flag States, which have to rely on records kept by the ships. But few coastal States which are not also shipping States have the resources either to detect the sources of pollution beyond short distances from the coast, or to enforce their law even when they can get evidence. Cooperation in the supply of evidence between coastal States and flag States is the only effective way °r strengthening the procedures of law enforcement* but this supposes that the flag State will take legal measures, and not the coastal State.
It is predictable that, whatever the coastal States group at the Conference may achieve in this respect* the situation respecting pollution will remain much as it is at present, except in the cases of confined waters and special circumstances. The Canadian pollution zone in the Arctic has an authentic basis if the realities of the situation there, and it has been justified by the Canadian government upon its exceptional character. Of its nature this zone cannot be universalized, and the effort to make a precedent out of it which would justify coastal State control Ifl quite different regions is a misuse of the processes whereby unilateral acts change the law.
In reality, all of the threats to navigation which the shipping nations have detected in the trends at the Conference coalesce in the case of transit routes through narrow waters. It will not matter much 11 coastal States gain control of pollution in the open seas off west Africa or eastern South America because it is unlikely that shipping will be seriously, if at all* inconvenienced. But it will matter a great deal in the narrow waters of Southeast Asia, the Mediterranean* Baltic, North Sea, and Caribbean. Hitherto attention has been focussed on the problem of straits, which are those passages less than double the territorial sea in width, but it needs now to be extended to othef passages which are less than double the exclusive economic zone. In this extended sense the passage5 on either side of Iceland are straits, so that there 15 no access to Murmansk except through jurisdictions1 waters. In the Pacific, a mosaic of interlocking 200-mile limits drawn from every island will establish a jurisdictional barrier extended between Vietnam and Tahiti, and from New Zealand to the Gilbert Islands. In varying degrees—passing through the territorial sea, the contiguous zone, and the exclusive economic zone—coastal State jurisdiction threatens to intensify and the freedom of the seas cot'
respondingly to diminish.
ri C^e suPPos‘t*on that only a three-mile territo- sea is licit, and that any waters in sea-lanes lch are wider than six miles are absolutely free for navigation, there were only a few important passages t*le w°rld which legally were straits. That situa- tJ)n °bviously changes if the distance is now to be t^e ^°U^e twelve miles. It has been calculated over 130 waterways which once were high seas nsit routes would now become straits in law be- •jfUse their waters would become territorial waters, maintain the existing freedom of passage through em has been a major goal of the maritime, and lcularly the naval powers, at the Law of the Sea the0 Crence' While this has been a goal common to m all, they have adopted different negotiating po- °ns. The United States, for example, has based its j. Itl0n on the proposition that the only universal j/^'t to the territorial sea is that of three miles; and any consent of the United States to a twelve- 1 e limit is conditional on agreement to maintain Slt tights through straits which will be equiva- to high seas rights. The defect in this negotiat- th” Stance *s the uniqueness of the contention about e three-mile limit. No other State now resists the L Ve~tnile claim, and so the American case is in- emntly impaired.
an 1 ^ ^uss'an Posture is more correct historically as ^etter founded: Accepting the twelve-mile limit established (after all, Russia was the first to adopt
Deen ^ 1 ■ .
th subject to a special regime of law, and not to sea aUtornat*c application of the law of the territorial ’ ancl that this regime is equivalent to high seas sSa&e- In other words, whereas the United States s to legislate for a new situation, the Soviet n‘°n relies on established law. That is not only tactically more sound, but it does have the support of valuable precedents in the cases of the Danish Straits and the straits of Magellan and Gibraltar (which latter, if one accepts Spain’s traditional six-mile limit, has been territorial waters since 1760).
Whatever the doctrinal issues, it is a fact that the argument over straits has been won in principle by the maritine Powers, although a rearguard action has been mounted by some straits-States since the Conference text emerged. A regime of transit passage is envisaged which will be greater than the freedom of innocent passage through the territorial sea, but less than high seas passage, in the sense that transit is to be continuous and expeditious, and ships in transit must comply with generally accepted international regulations, not only for safety at sea, but for the prevention of pollution as well, and should refrain from any activities other than those incidental to the normal mode of continuous and expeditious transit. Straits-States may designate sea-lanes and prescribe traffic separation schemes in consultation with the Intergovernmental Maritime Consultative Organization. These States may legislate for the safety of navigation and for the regulation of maritime traffic, and they may legislate for the prevention of pollution by giving effect to international regulations. Passing ships must comply with these rules.
One important feature of this text is the preservation of the right of overflight through straits. Otherwise, the text is a compromise tolerable to both the maritime and the riparian States. The latter have sufficient competence to guard against serious hazard resulting from collisions or stranding in shallow, difficult waters like the Malacca Strait, while the former have sufficient guarantee that passage will not be impeded, or various categories of ships excluded, on the basis of type, size, or method of propulsion.
The text is, however, deliberately ambiguous respecting what constitutes a normal mode of transit in the case of warships. The naval Powers infer that the usual precautions to be taken by warships in confined waters would be allowed under this formula. But the
The wreck of the Argo Merchant, a Liherian-flag tanker of uncertain ownership, grounded 21 December 1976 in international waters about 25 miles off Nantucket, Massachusetts. If coastal states, threatened or damaged by pollution from wrecks such as this, take the law into their own hands, how will the freedom of the seas be affected?
lack of specification in the text is likely to be productive of controversy over this. A random zigzag route may offend the local law requiring passage along a buoyed channel; use of sonar may offend local law respecting electronic emissions; the use of dunking sonar by helicopters or the dropping of sonar- buoys by maritime reconnaissance aircraft may offend local laws relating to aerial navigation.
The question of straits is also bound up in practice with the question of archipelagic waters, since so many of the principal straits in the world pass through the islands of the Philippines and Indonesia. Long before the Conference was summoned, those countries attempted to gain control of the waters separating the islands of which they are composed by linking the islands with straight baselines from which the territorial sea is measured. This was on its face a plausible application to groups of islands of the use of straight baselines for designating the territorial sea to which the International Court gave approval in the Anglo-Norwegian Fisheries Case in 1951.
But a fundamental difference results from a straight baseline system on a continental coast and in the case of an archipelago, namely the fact that in the case of the latter shipping lanes of major imp°f" tance may pass through the waters so enclosed. SinCe the effect of a straight baseline system is to treat the enclosed waters as internal waters and not as territ"' rial waters, the implications in the cases of af' chipelagos are obviously different from those in the other instances. The Philippines, with varying de' grees of insistence, has denied that the San Bernaf' dino, Balabac, and other passages between the *5' lands are, legally-speaking, straits, because they »fe internal waters. Indonesia has not pressed that poi"c in the cases of the Sunda, Lombok, and other p"s' sages, although at one stage it claimed the waters o' the Java Sea to be internal waters.
Clearly it is insufficient for the purposes of 'he Law of the Sea Conference that the question of strai'5 be clarified unless the question of archipelagos is ab° settled. The maritime Powers have gone about as F*r as they could be expected to go in agreeing tent'1' tively to a regime of archipelagic waters, designed t0 cover the cases of the Philippines, Indonesia, Fij1’ and the Bahamas. The details of this will have to worked out because the critical factors are the leng'^ of closing lines and ratio of land and water with"1 the perimeters.
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But these are less important, and less difficult’ questions than the question of passage rights. Here * concept of sea-lanes is proposed, which is analogo"5 to that of straits; but while this is satisfactory to o"e or two of the archipelagic States it has met with op' position in varying degrees from the Philippines afl^ Indonesia. Without their agreement on transit righ'5 there can be no new treaty on the Law of the Sea, that they hold one of the keys to the success of t* Conference. Since the concept of the exclusive ec°' nomic zone will gain for these countries most of tl^ control over economic resources which they may haye
0rity one, and was contradicted by the evident
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rhat no impediment was ever put upon the pas- warships. The subject became more contro-
°n the matter.
shift C a<^vent the Cold War brought a dramatic prj^ ,‘n attitudes. The United States became the and C*^a^ ProPoner|t of a right of innocent passage, cjas^t^le Soviet Union the principal opponent. The p_S ^between the NATO Powers and the Warsaw
^ ^0Wers at the Geneva Conference on the Law of ea >n 1958 led to the removal from the text of
th, the T,
spired to through the archipelagic doctrine, the sig- *cance of archipelagic claims has now shifted to °ntrol of access routes for reasons of security, and j 1S ls really only an aspect of the debate over straits. ls a matter of common sense to treat the Sunda a,t as a strait in law, whether the matter be listed er c^e head of archipelagos, or territorial waters, r exclusive economic zones.
Apart from questions of size and methods of pro- *°n, the case of merchant ships passing through i rl' S °r archipelagic waters is unlikely to be pre- the*06^’ w^atever text *s reached on the subjects at e Conference. It is the cases of warships and of rhghts, particularly by military aircraft, that are 'cal- The International Court in 1947 in the Corfu Qf atlnel Case established beyond question the right ite^arS^*Ps t0 Pass rhrough straits, although it lims . right by holding that minesweeping in s Wlthout the riparian state’s permission was il- tjo ’ even ro render passage secure. But the ques- tj .n 'nnocent passage of warships through territo- e I Waters which are not straits was deliberately hy the Court from the scope of its judg- n0uC' "C'his means that there is no judicial proof cerr>ent upon that question, which remains one t^^H^crable controversy. Its history reveals the ex- ro which law and naval policies intersect. e ^’rst suggestion that warships did not share th rnerchant ships a right of innocent passage rhe°U^ terr*tc>rial waters was made in the 1840s, on Pos ar^urnent that innocent passage existed for pur- es commercial contract. But that opinion, al-
°ugh reiterated from time to time, remained a mine ■
fa,
*** aS C^e resu^r of a casual and irrelevant remark |a . Root as American counsel in the North At- fered” ^°ast Fisheries Arbitration in 1910. He of- rj . r^e observation that warships did not enjoy a An r 'nn°cent passage “because they threaten.” Parently because it was Root who said this, the tyasUrn became policy of the State Department, and tjQ Pushed vigorously by it at the Hague Codifica- S] ^Conference in 1930, when the Soviet Union was
Th, erritorial Sea Conventions of the article on innocent passage of warships, but to the retention of a subsequent article requiring warships in the territorial sea to comply with the regulations of the coastal States.
The effect of this drafting history became the subject of further controversy after 1958, the NATO Powers contending that the right of passage had been provided for because warships were to be treated under the heading “all ships,” the Soviet Union arguing that because warships were not mentioned except in respect of their obligations to comply with local regulations, they had no right of passage unless this was previously authorised. The growth of Soviet seapower has meant that the Soviet Union is the country most likely to be incommoded by its own doctrine, and it may be significant that Admiral Gorshkov in his series of articles on seapower omits all mention of this topic, although he stresses other elements of international law in the use of seapower. One would expect a change in the Soviet position such as occurred after 1945 in the American position, but the complications of the Soviet bureaucracy make overt switches of this sort difficult to bring abour. What seems to have occurred at the Law of the Sea Conference is that the Soviet Union has quietly dropped its opposition to the right of innocent passage of warships, leaving it to the NATO delegations to establish this right.
The issue, as a result, is now between the maritime States and the coastal States, and the battle continues. In the Geneva text of the Conference drawn up in 1975 the right of passage of warships was expressly included. But it was dropped in the New York text of 1976. The question may not be very important from the point of view of the question of naval strategy if it is confined to the case of territorial waters on open coasts, but unless the question of straits is settled, or the archipelagic doctrine is linked with a right of passage, there is reason to be apprehensive that the controversy may prejudice naval Powers in their access to confined waters. It is not to be assumed that such Powers will ignore legal impediments to passage, and push their forces through without regard to local prohibitions, for friendly relations between States depends upon a range of associations, and naval staffs who would be prepared for a confrontation are likely to be curbed by foreign ministries to whom strategic deployment is only one of a number of considerations. During the Vietnam War the Royal Australian Navy for a time had to avoid routing its warships and transports through Philippine waters so as to avoid raising an issue of innocent passage. And during the Confrontation with Indonesia HM aircraft carrier Victorious was
168 U.S. Naval Institute Proceedings, Naval Review 1977
routed through the Lombok Strait to avoid a possible clash with that country, which opposed passage through the Sunda Strait. Naval staffs are prone to adopt a flexible response to legal claims as much as to graduated use of force, and it becomes a question of judgment whether a legal claim should be parried or sidestepped: It will rarely be subject to riposte, and to that extent legal claims, however ill-founded, are apt to become serious complications in naval planning and operations.
This is true of a spectrum of legal rules, whether they concern the various legal zones within which naval power may be deployed to coerce others or to protect resources, or whether they relate to the use and modes of weapons. Since the legal condition of war is generally accepted as being excluded by the United Nations Charter, the use of force at sea can only be justified legally—and so politically in the forum of world opinion—on the hypothesis of selfdefence. This does not mean that a naval task force must first be the victim of attack before it can respond, because that could mean destruction without the opportunity of self-defence. But it does mean that the requisite conditions for self-defence must exist—or at least must be contrived—which are that hostile intent on the part of an opponent should be in the process of translation into hostile action, and rhat the scale of response must be both necessary and proportionate to the threat. All of these factors are complex, and variable because of operational conditions and capabilities. It is not often that hostile intent is discernible in the absence of a declared political background, and attempts to identify the indices of hostile intent as it is translated into hostile act— such as fire-control radar locked-on, or missile housing opened—are thought to have failed.
Similarly, it is difficult in the absence of contingent circumstances to indicate the scale of response in self-defence. In low-level operations it might not be justifiable to reply to machine-gun fire with a missile, just as it would not ordinarily be proportionate to respond to a conventional warhead with a nuclear one. The law gives inadequate guidance in these matters because its principles are enunciated at a high level of abstraction. But the study of these principles is essential to guide those who are responsible for the drafting of rules of engagement and operational orders. A firm grasp of international law is an integral component of the skills of a naval staff.
In some circumstances a navy can afford to pay scant regard to international law in its operational planning (this seems to have been the case with the Indian navy in the war of 197 1), and this may affect the scale of action and the resort to modes of warfare.
But NATO navies are not likely to be in such a situation, and the political direction of their planning can be expected to be strict, so that the induction of international law into the staff papers is apt to be s feature of staff work. The lower the level of confrontation the more will this be the case; and sinte strategic doctrine supposes an escalatory process before any major confrontation with the Warsaw PaCt Powers occurs, it seems to follow that the law wi" play a prominent role in the initial postures of selfdefence.
At a lower level still it plays an important role in such matters as clandestine submarine transits. Submarines are required to navigate on the surface when in territorial waters, and not to enter internal waters without permission. Difficult legal questions underlie the decision to attack or not to attack a submerged contact within the areas of national jurisdiction. F°r’ it is one thing to say that a submarine breaches the law by submerged transit, and another to say it )S not thereby entitled to innocent passage—just ss driving at excessive speed does not negate the right to use the road. While submerged contacts have beef attacked, this is a questionable action unless all e<[' forts have been made to compel the submarine to surface, and certainly unless it has been es tablished that the submarine is not in transit.
International Law is to be regarded not only fr°nl the point of view of curbing violence, but also >n some circumstances as a provocation to violence- When its rules are so indeterminate that they g>ve rise to disputes, the only resolution it offers for settlement is to endorse whatever comes to prevail |fl practice. The need to secure widespread agreement upon rules that are definite, clear, and comprehensive, so that the influence of power upon the outcome of contests can be minimised, is the only thin? to which all delegations at the Law of the Sea Conference pay lip service at least. Apart from that, thef are concerned mainly with the promotion of narrow' national interests, and since these are many an^ mutually inconsistent, compromise is essential f°f progress to be made. Reconciliation of competing claims between countries is not the only aspect of the matter: A similar reconciliation is required of g°v' ernment departments concerned with nations' policies on the Law of the Sea. For countries lib6 Senegal national policy is a simple matter: For countries like the United States or the United KingdoU1 it is complicated by the many interests that have to be taken into account.
Some countries seek to press claims of nations' jurisdiction into the ocean because they need to pr°' tect the local fishing industry; others oppose thesC claims because they have distant water fishing industries; others yet are hindered by indecision because they have both sorts of industry. Some countries are content with continental shelf rights because they have broad shelves, and offshore oil is more important chan fisheries: They are less concerned with pollution chan are fishing countries or tourist resort countries.
Ocher countries have narrow continental shelves and seek to appropriate mineral resources by linking seabed claims with fishery claims. Yet others have °ch seabed and fishing interests and seek to accommodate both. Some countries are insular and claim Jurisdictional zones around islands, while others are n°c and oppose these cldims. The very question 'S'hether every island is to have a 200-mile limit, or as a continental shelf appurtenant to it, is controversial because of the disproportionate effects of these eacures on the enclosure of the sea and the depriva- C'°n of others’ use of it.
Some countries are concerned by the growing scarcity of resources and the fact they are non-renewable, while others are concerned to redress the balance of economic history by immediate diversion of these resources to the needs of their development. Some countries have security problems arising out of espionage, subversion, smuggling, and piracy, and are lrripelled towards control of waters, particularly those enclosed by islands, for reasons of police rather than °r reasons of economics, and their claims are opposed by shipping countries whose concern is to c^gnify the libefty of movement.
National pdlicies on the Law of the Sea are a compound of interests which often are basically irreconcilable, and the projecting of these policies by 140 countries at the same time and in a single forum can °nly lead, if not actually to incoherence, then, at east, to disillusionment. Even if a new treaty on the {■aw of the Sea is agreed to at the Conference, it will e many years before it becomes widely accepted trough ratification. In many governments some ,nternal interests will be mobilized to promote and °thers to resist ratification. The scientific community’ largely organized in technologically advanced countries, will be hostile towards the restraints 'C'hich developing countries can be expected to pro- tuote with respect to research vessels operating in their waters. Treasuries may be dismayed at the costs . oth of supporting the International Seabed Author- tty and of providing the resources for policing large ateas of jurisdictional waters. The operations are •kely not t0 prove cost-effective, and fisheries will anguish in many regions because of underfishing.
There is bound to develop in a period of disillusion- rrient after the Conference terminates its work, and it
is difficult to predict whether this will lead to more or to fewer disputes over maritime jurisdiction. What is likely to preoccupy defence authorities more and more will be the problem of security of offshore installations. The law remains very unclear about the status of an oil rig. It is not a ship and its crew are not seamen. If fixed to or connected with the bottom, it probably partakes of the legal character of the seabed, and there are limits as to how much local law extends to the continental shelf, in contradistinction to the case of ships which are invested with the whole of the relevant law. There will be legal difficulties arising from this fact and concerning protection of installations especially from threat by water or air, for under the Geneva Convention on the Continental Shelf the coastal State has power to create a security zone of only 500 meters around oil rigs.
Boundaries in the sea are becoming ever more difficult to draw. This is partly because what is appropriate for division of seabed resources may be quite inappropriate for allocation of fishing resources among communities dependent upon them; partly because of the disproportionate gains and losses resulting from geographical locations, which give rise to questions of equitable distribution; and partly because of technical problems, which in some latitudes and over 200-mile distances, can become serious. If great circle lines are used they become difficult to identify by navigators; if rhumb lines are used they displace locations by significant margins. Policing of jurisdictional zones will require definite boundaries, but even then will give rise to difficulties of evidence as to location of the offence when Loran or Omega are not available, or sets are not carried on board, and where the land is beyond the radar’s horizon.
The analysis of this wide spectrum of questions will become increasingly part of the task of naval staffs, and this presupposes some education in the subject on the part of naval officers who are likely to take command or be engaged in staff work. An understanding of the legal environment is as much a need for the naval officer as an understanding of the physical environment, since in operating in the one, he necessarily operates in the other.