The primary military threat to the security of the United States today is from the nuclear armed missile. The Soviet Union’s plan to use submarines as launching platforms for a substantial portion of its missile arsenal is clear from a study of the 1965-66 edition of Jane's Fighting Ships. Seventy-seven Soviet submarines, both conventional and nuclear-powered, are listed including ten “E” class, 13 “H” class, two “J” class, 30 “G” class, ten “Z” class, and 12 “W” class; each carries from two to six guided or ballistic missiles and all are credited with being operational or fitting out in the Soviet Navy. It is also reported that some 30 additional submarines are under construction in Soviet dockyards including long-range nuclear-powered ballistic and guided missile types. Comparing this existing and potential Submarine Launched Ballistic Missile (SLBM) threat with the latest unofficial Department of Defense estimates that the Soviet Union now has no more than 200 land-based ICBMs suggests that a move to the sea is in progress for the Soviet Union’s rocket forces. In what is presently “no-man’s-water,” the SLBM platforms can prowl the seas off our coasts, awaiting the signal to unleash destruction on the United States.
Thus, if we consider the sea lanes as the streets of the world, there are armed, unpredictable men on the prowl in our neighborhood. Before asking ourselves what we can do to protect ourselves better, let us first determine what our legal rights are.
The law of the sea has been developing throughout the thousands of years that men have sailed the seas, and organized societies have asserted the right to exercise control over areas of the sea adjacent to their coasts. It continues to develop. Its evolution springs from repeated state practice, international agreements, decisions of municipal and international courts, the opinions of publicists, and, in some cases, from the consequences of war. All have had a part in shaping its body, which is not altogether consistent nor recognized by all states in every particular. Dynamic, controversial, and at times illusive, this law appears within no statute book.
After 300 years, the Law of the Sea has developed two concepts which are diametrically opposed. The one, freedom of the seas; the other the right of a coastal state to enforce its laws the same as is customary on its land territory in a belt of water adjacent to and seaward of its land boundaries. These two concepts have been able to coexist. The high seas were not appropriated to the control of any state and the belt of water, commonly called the territorial sea, remained narrow in width so that the control exercised therein, a necessary adjunct of sovereignty, did not infringe upon the free use of the high seas.
The United States, through Secretary of State Thomas Jefferson, on 8 November 1793, first asserted the provisional adoption of a three-mile limit to its territorial sea in a diplomatic note to the British Minister. Up to the end of the same century, however, there was no part of the high seas surrounding Europe free from the claims of proprietary rights by the individual states, nor were there any seas over which such rights were not exercised to some degree. As these claims subsided under the Pax Britannica imposed by the Royal Navy, which had the power to insist upon and enforce its version of freedom of the seas, control and limited jurisdiction developed in the contiguous area, an additional area to seaward and adjoining the territorial sea. This third area initially developed through the enforcement of fiscal, custom, and sanitary laws, and eventually for the defense of the coastal state.
Recently, states, particularly the Soviet Bloc and newly emerging nations, have again laid claims to vast areas of the seas abutting their coasts, thus effectively denying full and free use of the high seas to ships and aircraft of other states. These claims are in fact an extension of the boundaries of the coastal state. Locations where land and water bodies are intricately interrelated frequently serve as focal points for conflict. This is illustrated by long historical sequences in the narrow seas of Western Europe, the Mediterranean, and the Caribbean. Much in the science of geopolitics necessarily stems from the coastlines of the world and their positions with reference to national territory and international boundaries; the edges of the sea, in the preponderant number of cases, serve as boundaries.
Material shifts in boundaries do not occur readily except through the instrument of force. The relinquishment of the smallest bit of territory becomes a national loss and a political issue with tremendous emotional sentiment attached to it. Arbitration has been used in a few cases with success. The plebiscite used in the Saar in 1935 and recommended (thus far in vain) for the Kashmir dispute is another partial, limited answer. The Charter of the United Nations and the Statute of the International Court of Justice afford means for reference of boundary disputes to the world organization. There is no clear formula, however, for dealing with the desire of one state for a major readjustment as in the case posed by Hitler before World War II or by the Federal Republic of Germany today, when one of the states affected violently opposes such action. Boundary disputes are still a threat to world peace and afford some of the most complex issues for world politics. The encroachment, through the extension of a coastal state’s boundary with the high seas, an international as contrasted with a national boundary, has not evoked the same type of response that land territorial changes elicit since there is no individual adversary. It is thus a favorite means of territorial expansion, particularly for those coastal states with few if any maritime interests outside their claimed territorial waters.
The fact that the law of the territorial sea has defied all attempts at its codification has given added incentive for the doctrine of self- interest to prevail in the unilateral declaration by the various states of a width of territorial sea to suit their immediate needs and long-range objectives. Until the 20th century, the three-mile territorial sea limit of coastal states was generally recognized with a few exceptions such as the historically sanctioned one-league limit of four miles in Scandinavian waters.
Delegates from 86 United Nation member states met in Geneva from 24 February 1958 until 27 April 1958 in the First United Nations Conference on the Law of the Sea to attempt to reach international agreement on the width of the territorial sea and to codify various portions of the law of the sea. The conference had the benefit of the 1956 Report of the International Law Commission which included draft articles formulated by the Commission after six years of intensive study and deliberating. The conferees could not agree on the issue of the width of the territorial sea, although they did adopt four conventions, an optional protocol, and nine resolutions, ranging over most major aspects of maritime law. The Conference did, in the Convention on the Territorial Sea and the Contiguous Zone, incorporate an article defining the outer limit of the territorial sea as a line, every part of which is at a distance from the nearest point of the baseline equal to the breadth of the territorial sea. This is not particularly profound but does ascertain that in addition to the unilateral declaration by the various states of a width of the territorial sea, the same result of extending one’s seaward boundary can be attained by moving the starting point for such measurement or baseline, away from the shore.
The seriousness with which the United States viewed the inability of the 1958 Conference to reach agreement on the breadth of the territorial sea is shown by its efforts prior to the Second United Nations Conference on the Law of the Sea, in 1960, to convince other states to keep the territorial sea as narrow as possible. During the six months prior to the 1960 Conference, members of the U. S. delegation traveled to the Far East, Southeast Asia, Latin America, and to the nations of Europe in an effort to reach as extensive as possible agreement beforehand on the width of the territorial sea.
The Second United Nations Conference on the Law of the Sea met in Geneva from 17 March 1960 until 27 April 1960 with delegates from 87 member states. As was the case at the first conference, various proposals on the breadth of the territorial sea were made, the proposed limits ranging from three to 12 miles with a Canadian-U. S. proposal fora maximum six-mile territorial sea, granting to each state a total of 12 miles of exclusive fishing rights with certain residual privileges to countries who had been fishing in the outer six-mile zone. This proposal, commonly called the “six-plus-six,” failed of adoption by one negative vote.
Although neither the 1958 nor the 1960 Geneva Conference was able to reach satisfactory agreement on the width of the territorial sea, the 1958 Convention on the Territorial Sea and Contiguous Zone did provide for the right of innocent passage.
Innocent passage is navigation through the territorial sea for the purpose either of traversing that sea without entering internal waters or making for the high seas from internal waters. It includes stopping and anchoring, but only insofar as the same are incidental to ordinary navigation or are rendered necessary by force majeure or by distress. While the coastal state must not hamper innocent passage through the territorial sea, it may take the necessary steps in its territorial sea to prevent passage which is not innocent.
The decision as to whether passage is innocent is made by the coastal state, and passage should be so considered so long as it is not prejudicial to the peace, good order, or security of the coastal state. Temporary suspension of the right is permissible, after due notice, when essential for the protection of its (the coastal state’s) security.
What will later be seen as a most important provision is that the right of innocent passage cannot be suspended through straits which are used for international navigation between one part of the high seas and another part of the high seas or the territorial seas of a foreign state. Even this seemingly definite provision should not be considered as a guarantee that the right of passage is assured. Harassments by patrol activities, “failure” of navigational aids, and a flood of notices to mariners as to obstructions to navigation, including mine fields, could be employed to force a decision to abandon “voluntarily” the use of such a waterway.
Submarines conducting innocent passage are required to navigate on the surface and to show their flag. Submerged submarines could be subject to attack by the coastal state, as submergence is evidence of “non-innocent passage,” thus permitting the coastal state to take necessary steps in its territorial sea to prevent such passage.
There is some difference of opinion between nations as to the right of innocent passage for warships in the territorial sea. Some countries contend that prior authorization is necessary from the coastal state; some contend that there should be prior notification from the warship to the coastal state; and some, including the United States, contend that none of these clearance procedures are necessary for passage. The 1958 Convention did not provide for either prior authorization or prior notification in the case of warships.
It is an established principle that although aircraft have the right to fly over the high seas, they cannot overfly the territorial sea of another nation without obtaining prior permission, any more than they can overfly another nation’s land territory in the normal atmosphere and flight space in the absence of special treaty or agreement.
The traditional concept of the territorial sea normally measured seaward from a baseline along the coast cutting across the mouths of rivers, harbors, and smaller bays must be distinguished from the concept of internal waters, which normally lie inland from this coastal baseline. Under international law, foreign ships may not pass through internal waters as of right, even if their passage is innocent, and in no instance, in the absence of treaty, may aircraft overfly such inland waters. International conventions such as the Chicago Civil Aviation Convention of 1944, in conjunction with specific bilateral agreements, have made it possible for commercial scheduled airlines to establish air services and obtain freedom of passage over the land, inland waters, and territorial seas of signatory states.
The ultimate policy question is whether our nation’s seaward boundaries should hug the shoreline, be as far seaward as possible, or be somewhere in between. To determine this question of policy, the federal government has to weigh the economic, foreign relations, and defense aspects of various seaward boundaries. Similarly, there are historic, geographic, and law enforcement considerations. There may be, and is, disagreement in each particular field on which policy is best, one interest being best served by a narrow belt while another is best served by a broad belt.
The United States has consistently opposed expanded territorial sea claims of other states principally because of the corresponding decrease in the area of the high seas common to all which would ensue. Restrictions thus increase to the movement of aircraft, surface warships, and submarines over, through, or under the territorial sea of each coastal state since absolute freedom of navigation and over flight exists only on the high seas. The Free World being an oceanic confederation has as its lifelines the sealanes of the world. Restricting the mobility of naval power derogates this area of unchallenged superiority presently possessed by the United States which is essential to protect these lifelines.
The United States has been unsuccessful in stemming the claims of other nations to expanded widths of territorial seas. While only 22 nations adhere to the traditional three- mile width, 50 have broader specific claims, with 13 others unspecified or stating they will follow international law.
The present situation is the result of the Soviet Union’s efforts to restrict Free World sea and air power and of the loss of sovereignty, by Western seafaring nations, over a large portion of the world’s coastal area through decolonization since World War II. These newly independent nations associate the deployment and employment of seaborne forces with imperialism. As a result, a reduction of high sea areas is deemed to serve the interests of these highly nationalistic nations which have an historic fear of naval power. These newly independent nations are unimpressed by the truism that the advent of modern airpower, electronics, and the ballistic missile have made a wide territorial sea a meaningless security measure insofar as guarding against attack. They know they are the most unlikely recipients of the application of such power. To them the employment of air and naval power as instruments of political pressure and coercion in circumstances less than general or nuclear war is the major consideration. In short, these nations resent “shows of force.”
The Soviet Union maintains that international law imposes no limitation on the width of the territorial sea. The proof cited for this contention is that the width presently claimed by various sovereign states ranges from three to 200 miles. As a result, it is the unilateral action of the coastal state extending sovereign jurisdiction over territorial waters which establishes the width of the territorial sea. The great disparity in widths of territorial sea claimed by the nations of the world and inability to reach agreement at both U. N. conferences lends credence to this assertion.
The Soviet Union has since 1926 advocated the “sector principle.” This principle claims that each nation bordering the Arctic Ocean may claim as its own, any unclaimed land lying in the sector between its Arctic coast and the North Pole.
By using a 12-mile band for inland as contrasted to territorial waters, the “sector” and the “Historic bays” concept, which claims as territorial waters that area within a bay, not by geographic considerations, but long usage and control, the Soviet Union has annexed several million square miles of the high seas over which it claims to exercise complete sovereignty. This has been accomplished by unilateral action; namely, national legislation.
Even a narrow width of the territorial sea, in itself does not assure freedom of movement. The determination of the baseline is all important and the application of the historic bays or archipelago concept, in which a straight line is run from the outermost island in an island chain, encloses large areas of the high seas as territorial or internal waters and adversely affects freedom of movement and consequently the security of the United States.
The Philippines has unilaterally adopted the archipelago theory. Since this nation consists of over 7,000 islands extending about 600 miles east and west and about 1,000 miles from north to south, a large area is enclosed. The United States does not recognize this claim, and no friction has resulted because of the close and friendly relations existing. Application of the principle would make San Bernardino Straits territorial seas (or inland waters). The distance from Guam to Saigon via Luzon Straits to the north of the Philippines is 293 miles more than by passing through the Philippines via San Bernardino.
Indonesia has also unilaterally adopted the archipelago theory. As this nation extends over 3,000 miles from east to west and over 1,300 miles from north to south, vast areas such as the Java, Flores, Molukka and Banda Seas in Indonesian opinion no longer are “high seas.” The further assertions that waters thus enclosed are “internal” as contrasted to “territorial” closes the important Sunda, Lombok, and Ombai Straits to sea and air movement from Australia to Southeast Asia. The distance from Cape Leeuwin, the Southwestern tip of Australia, to Saigon via Malacca Straits is 995 miles further than via Sunda Straits.
Application of the archipelago theory to the Japanese islands would block the Tsugaru Straits between the islands of Honshu and Hokkaido. The distance from San Francisco to Pusan, Korea, via Tsugaru is 4,973 miles. The Bungo Suido with the Shimonoseki Straits between the islands of Honshu and Kyushu leads into the Korean Straits en-route to Pusan. The distance from San Francisco to Pusan, via these bodies of water, is 5,201 miles.
Application of the archipelago theory to the Greek islands in the Aegean Sea would create a Greek lake, the Aegean, to which access could not be had without either violating Greek sovereignty or passing through Greek territorial waters depending on their claim as either internal or territorial waters. More seriously, the approaches to the Dardanelles and the Black Sea would be cut off and make a Russian, Rumanian, Bulgarian, and Turkish lake out of the Black Sea. Rumania and Bulgaria would in effect no longer have access to the high seas, and transit of the Aegean by all four nations would be at the sufferance of Greece. This is highly unlikely and certainly would not be tolerated by the Soviet Bloc nations. It does show the unreasonable results from application in certain areas of a theory advanced by some states.
Use of a 12-mile as compared to a three- mile territorial sea has been estimated to reduce the high seas by some three million square miles. This approximates the entire area of the United States including the Great Lakes. In the Mediterranean Sea alone, extension to 12 miles removes 145,000 square miles from the high seas; an area one and one-half times the size of Italy. Extending the territorial sea from three to six miles throughout the world would remove some 52 straits from the status of free high seas and place them under the sovereignty of bordering states while extending the territorial sea to 12 miles would similarly affect 116 straits. U. S. seaborne military forces could pass through these straits only by the right of innocent passage. Airborne forces do not enjoy that right and would require prior permission.
Should the United States agree to accept the 12-mile limit, U. S. military forces would be faced with the following situation. They could operate freely in the Atlantic only up to the continent of Europe, free access into the Mediterranean, via Gibraltar, into the North Sea via the Channel and into the Baltic via the Sound would end. In the Pacific, the restrictions imposed by the Kuriles and Japanese Islands if a 12-mile limit were used, would likewise inhibit approach to the Asian land mass. Operations from the Pacific to the Indian Ocean would be delayed through the extremely long route via the easternmost edge of the Indonesian archipelago. Approaches to Southeast Asia from the United States would also be measurably lengthened, particularly for airborne forces—a fact not often recognized by proponents of massive air-lift forces such as are envisioned with the new C-5A- transport-type aircraft.
The security value to the United States of the three-mile limit thus does not lie in the protection which it affords our shores, but in the freedom of action which its recognition as an international principle applicable to all states gives our naval ships and military aircraft off other shores. This does not necessarily mean that the United States should not exercise some form of control outside the traditional territorial sea. That this control can be exercised without thereby giving approval to a wider than three-mile territorial sea has been clearly expressed as an accepted principle of international law.
The United States, for almost 50 years, has been unchallenged in asserting its right to exercise jurisdiction over waters adjacent to its coast for the specific purpose of defense. These areas were first established by President Wilson on 5 April 1917, when 29 separate Defensive Sea Areas were delineated. Commencing in 1935 by Executive Order 7138 on 12 August and continuing through World War II, President Franklin D. Roosevelt established over 40 such areas. The greatest extension beyond the three-mile territorial sea for such defensive purposes was in the Southeastern Alaskan Maritime Control Area where the extension was about 53 miles beyond the three-mile limit.
Another significant defense and control measure is provided for in regulations which authorize the Administrator of the Federal Aviation Agency, in consultation with the Department of Defense, to establish Air Defense Identification Zones (ADIZ) and to prescribe certain requirements to aircraft operating in such zones.
The regulations resulting, establish Domestic and Coastal ADIZs and Distant Early Warning Identification Zones (DEVVIZs) not only over the United States but also over areas off the coasts to the East and West as well as to the North of Alaska into the Beaufort and Chukchi Seas for several hundreds of miles. Pilots are required to file flight plans prior to penetrating these zones or proceed in a certain manner such as going to a specific area for visual identification or landing at a stated location when unable to file or comply with the filed flight plan. The importance of adhering to these regulations is made apparent with the warning that failure to comply with the regulations or flight plans may result in interception.
These zones seem entirely reasonable in the light of the high speeds of modern aircraft even though they far exceed the territorial limits traditionally claimed. Danger is represented not only by possible mid-air collisions requiring strict regulation but also for self- defense purposes.
By Presidential Proclamation, the United States should establish off our Eastern and Western Coasts broad bands of water, delineated by geographical co-ordinates, titled Submarine Defense Identification Zones (SUBDIZ). The size of these zones should be as recommended by U. S. Navy advisors based on the known and expected range of Soviet submarine-based missiles in the immediate future and on the optimistic evaluation of the ability of the U. S. antisubmarine warfare forces and systems to detect intrusions into the zones. Notice should be given to all nations that submerged transit of these zones is forbidden without the express permission of specified U. S. authorities and that surfaced transit by submarines would have to be made in corridors specified by such U. S. authorities. Unidentified submarines transitting such areas without authority would be subject to surfacing procedures and possible attack. The proclamation should also make clear that designation of these areas does not change their character as high seas and that the right to their free and unimpeded surface and air navigation is in no way affected. U. S. adherence to the three-mile limit thus would be reaffirmed.
The SUBDIZ should not include any area surrounding Alaska because of its proximity to Soviet territory and its lack of suitable SLBM targets. The SUBDIZ should also specifically exclude the areas of the territorial seas of nations off our coasts and within the various zones.
The proposed zones meet the test of a legitimate exercise of the right of self-defense in that the potential act of launching missiles is definitely and strictly within the realm of a threat to the security of the state and the measures taken to repel the threat are reasonable. Submarines are not a type of ship which engages in commerce. There is no legitimate interest or right of another state violated by the requirements of the SUBDIZ. It is axiomatic that any submarines lurking off the coasts of the United States are there for one reason only, to derogate the security of the United States. Prior to the U. S. entry into World War II, President Roosevelt in an address on 11 September 1941 directed U. S. ships and planes to attack Axis submarines on sight over a vast expanse of the Atlantic stating: “Their very presence in any waters which America deems vital to its defense constitutes an attack.”
Admittedly the situation in the fall of 1941 was different from today, with a hot war in Europe and the United States openly supporting one of the belligerents. The threat today, however, is as real and potentially more devastating as it affects national survival.
A more recent assertion by the U. S. government of extraordinary actions to meet a potential threat to national survival was the Cuban Missile Crisis in October 1962. Although cloaked with the legality of a concurrent Organization of American States resolution, the bare facts are that the United States used the full force of its power in diplomatic affairs and its military strength to force a sovereign nation, albeit a Soviet Satellite, to dismantle and remove missiles and aircraft capable of carrying atomic weapons from its sovereign territory because of the threat they posed to the United States, and quarantined the further importation of such material on the high seas. It is not illogical therefore to require a ship on the high seas to conduct itself in a manner (surfaced or submerged in a known position) to minimize the threat when traversing these high seas within range of the United States of its destructive weapons.
There is little validity to the argument that by our establishment of SUBDIZs we would be inviting similar action by the Soviet Union. The Soviets have already claimed large areas of the high seas as part of their sovereign territory and no further extension to the high seas which wash their borders could effectively hinder our sea-based deterrent systems.
The SUBDIZ is not a precedent for the creeping encroachment on the freedom of the seas such as the “six-plus-six” proposal. Here no problems of conservation of fisheries, claims to the mineral wealth of the subsoil or seabed are involved. No commercial or economic use is currently being made of submarines and none is contemplated in the immediate future. Should submarine merchant ships become commercially feasible, their routes, schedules, and depths of transit could be approved in advance and our antisubmarine warfare forces and systems would then know exactly where the commercial submarine was operating.
It might be said that nations other than the Soviet Union bordering on the high seas may take it upon themselves to establish SUBDIZs and taken to the extreme we would end up with a situation in which our undersea naval forces, particularly our Polaris submarines, could operate only in our own waters or in small midocean areas. This argument is specious. For any type of control or jurisdiction to be exercised on the high seas it needs to be effective, a condition which only the expenditure of billions of dollars by such nations for the development of an effective ASW force would make possible. This is beyond the range of possibility available to all except the two great world powers.
The cost of strengthening antisubmarine defenses to make the SUBDIZ designation meaningful would be considerable. Concurrently, or prior to the Presidential SUBDIZ proclamation, the U. S. Navy should submit a Program Change Proposal to the Secretary of Defense for those additional ASW weapons systems required to make the SUBDIZs fully effective. It is pertinent when considering the cost-effectiveness of these antisubmarine systems to reflect on the billions already spent on static defenses against the bomber and missile threat such as the Distant Early Warning Line, Mid-Canada Line, Pine Tree Line, Ballistic Missile Early Warning System, and their associated military forces. The additional billions spent thus far on research and development of anti-ballistic missile systems, none of which have to date been deployed or authorized and which the Secretary of Defense estimated would amount in one instance to 16 billion dollars with a substantial additional amount each year to operate, make feasible the high cost of adequate defenses against the SLBM threat.
Absolute security is not achievable today nor in the future. The principle of freedom of the seas is as valid today as when it was established. Lip service will not preserve this principle, and the United States should actively use all the high seas areas outside the traditional three-mile limit to assert its nonrecognition of the various expanded claims of sovereignty. Transits should be made of the various archipelagos, seas, and arctic areas now excessively claimed as territorial or inland waters. If the assertion of this right is considered provocative, it is only because the coastal state hopes by intimidation to be able eventually to assert a prescriptive right through long and exclusive use and enjoyment.
The use of SUBDIZs is not a retreat to a Fortress America or Maginot Line concept. The seas within these zones will continue to remain free, but only to those who pass upon them freely and openly.