On 19 August 1981, elements of the Sixth Fleet were engaged in a missile exercise in the Mediterranean Sea. Portions of the exercise, including projected missile trajectories, were scheduled to occur south of 32°30' North, the northern delimitation of the Gulf of Sidra. The area had been used several times before, because it was the ideal location for safe conduct of such an exercise in the Mediterranean. The exercise was planned carefully with a view toward safety.
On 12 August, a notice to mariners and on 14 August a notice to airmen were issued. The notices warned of a two-day exercise and the potential danger to ships and aircraft in the area. As is frequently the case in firing live missiles in ocean areas, aircraft were launched to ensure that the range was clear and to warn unsuspecting ships and aircraft of the Potential danger.
On 18 August, the first day of the exercise, more than 60 Libyan military aircraft had been intercepted in or approaching the area in which missiles were to be fired or could be expected to land. In each casse, the Libyan aircraft were warned of the impending danger, and they subsequently turned away. At 0718 on the morning of 19 August, two F-14 Tomcats from Fighter Squadron 41, embarked in the USS Nimitz (CVN-68), intercepted two Soviet-built SU-22 Libyan fighters at the northern end of the Gulf of Sidra, approximately 60 nautical miles from the Libyan coast. As the two F-14s were maneuvering into position to warn of the impending danger, one of the Libyan aircraft suddenly launched an Atoll missile at the lead F-14. The Tomcat maneuvered to avoid the missile and then fired a Sidewinder missile against the aggressor. The American missile found its mark, destroying the SU-22 “Fitter.” Seconds later, another Sidewinder was launched, and it destroyed the remaining Libyan fighter. The entire engagement lasted approximately one minute. Within hours, both governments filed protests with the United Nations Security Council, each claiming that the actions of the other had violated international law.
Background: Before proceeding further, it is appropriate to discuss briefly the concept of international law and how it is made. The first and oldest source is “customary international law,” which means how states behave in relation to one another. The process is essentially one of claim and counterclaim by which the interaction of states over a period of time determines the rules by which they will conduct themselves. The second source of international law is the specific contractual arrangements, such as treaties 6r conventions, by which states agree to regulate their conduct toward one another. This latter type of international law is called “conventional international law.”
Often, a given rule of international law is not clearly customary law or conventional law, but a delicate blend of the two. This is in part because conventions can be either law making or law declaratory. That is, the parties may set out new rules by which they will govern their relations, or the agreement may seek simply to codify what the signatories agree are the customary international rules regulating their conduct. The distinction is blurred even further by the fact that conventions are frequently considered binding on non-signatories. In cases in which a treaty merely codifies existing rules of customary international law, it is irrelevant whether a given country is a party to the convention since that country is already bound to the rules in question. Alternatively, international agreements may become so universally accepted that their provisions are said to become customary international law whose provisions bind even non-signatories. The 1949 Geneva Conventions on the humanitarian aspects of warfare, such as the Convention on the Wounded and Sick or the Convention on Prisoners of War provide examples of each of these. A substantial part of what is contained in those conventions is simply a gathering in one place of the rules concerning how the victims of warfare should be treated. On the other hand, there are new provisions in the conventions that were necessitated by the shortcomings in the law demonstrated by the experience of World War II. While their lawmaking provisions were not originally binding on non-signatories, they have now become customary international law since their acceptance is so universal as to become obligatory on even non-signatories.
The Libyan Claim Over the Gulf of Sidra: In October 1973, the Libyan Arab Republic promulgated a declaration by which it claimed that the Gulf of Sidra “located within the territory of the Libyan Arab Republic . . . and extending North offshore to latitude 32 degrees and 30 minutes, constitutes an integral part of the territory of the Libyan Arab Republic and is under its complete sovereignty.”1 This declaration was intended to change the juridical status of the Gulf of Sidra from international waters, to which the full range of high seas freedoms apply, to internal waters in which, like a river or bay, the coastal state exercises complete sovereignty. The legal consequences attached to such a sweeping change in the word used to describe such waters are far-reaching. To the extent that the waters in question are “high seas,” all states are entitled to put such waters to any reasonable use including the right of overflight, subject only to a reasonable regard to the right of others to use such waters. Waters closer to shore are described as “territorial waters” and are subject to the sovereignty of the coastal state, but ships of other states are entitled to a right of innocent passage (that does not include overflight). On the other hand, in “internal waters,” the sovereignty of the coastal state is absolute, and there is no right for the vessels of any state to enter such territorial waters without the coastal state’s consent.
In seeking to effect this important change, the Libyan declaration stated:
”... the Gulf penetrates Libyan territory and forms a part thereof, it constitutes internal waters, beyond which the territorial waters of the Libyan Arab Republic start.
“Through history and without any dispute, the Libyan Arab Republic has exercised its sovereignty over the Gulf. Because of the Gulf’s geographical location commanding a view of the Southern part of the country, it is, therefore, crucial to the security of the Libyan Arab Republic.”
Article 7 of the 1958 Geneva Convention on the Territorial Sea and Contiguous Zone (hereinafter “Territorial Sea Convention”) provides, in part, that a bay is a “. . . well-marked indentation whose penetration is in such proportion to the width of its mouth as to contain landlocked waters and constitute more than a mere indentation of the coast.”
Article 7 goes on, however, to provide that:
“If the distance between the low water marks of the natural entrance points of a bay does not exceed twenty-four miles, a closing line may be drawn between these two low water marks, and the waters enclosed thereby shall be considered as internal waters.”2
Apparently, the Libyans recognized that the 300- mile closing line across the Gulf of Sidra would not Pass legal muster in terms of enclosing what may be called a technical bay. Thus, the language that “Throughout history and without dispute, the Libyan Arab Republic has exercised its sovereignty over the Gulf,” was apparently intended to invoke an exception that the 24-mile limitation on the mouth of a bay “. . . shall not apply to so-called historic bays.” Despite the bootstrapping efforts of the Libyan claim, it was quickly protested by the United States and other maritime powers.
The Counterclaim: In the international law-making process, a counterclaim may take the form of either words or actions. The Libyan claim in the Gulf of Sidra was subject to both. Some four months after it was announced, the Libyan claim was denounced by the U. S. State Department as “unacceptable as a violation of international law.”3 The condemnation of the Libyan action was based upo the 1958 Territorial Sea Convention, and yet, Libya was not even a signatory of that agreement. Although not specifically articulated, what the United States was seeking to argue was that Libya Was bound by the convention, even though technically not a signatory, on one of two grounds: either that the treaty merely codified existing international law, or that the treaty was so widely accepted that 't became customary international law binding on all. Support for the juridical position of the United States was provided by similar protests against the excessive Libyan claim lodged by other nations, including the Soviet Union.
The United States was not, however, content to rely upon diplomatic protests of the Libyan claim. Thus, during the four-year period from 1977 through 1981, eight large-scale exercises were conducted by L. S. naval forces in the disputed area without significant incident.
Territorial Sea Claims: Even were the United States to accept Libya’s right to claim a closing line across the Gulf of Sidra, the dispute between the two parties would not be resolved completely. The Territorial Sea Convention provides that the normal baseline for measuring the territorial sea shall be the low water line along the coast. However, in cases in which the coast is deeply indented or cut into, the territorial sea is measured from the straight baselines adjoining appropriate points of the coast. If the claimed Libyan line drawn at 32°30' North were allowed, then Libya’s claimed 12-mile territorial sea would extend north of that line. Although all ships enjoy a right of innocent passage through the territorial sea, such a right does not include the right to conduct military exercises. Accordingly, the Libyan claim would preclude the conduct of U. S. missile exercises not only in the Gulf of Sidra, but also 12 miles to the north.
In 1793, Secretary of State Thomas Jefferson, acting on behalf of President George Washington, proclaimed a 3-mile territorial sea for the United States until such time as an international conference could agree upon what the proper standard should be. At the time, the 3-mile territorial sea was widely accepted as the proper limit to which a state could extend its sovereignty. The concept of a territorial sea rested largely on the notion of a defensive perimeter that even Hugo Grotius, the father of international law, recognized as a legitimate exception to his principle of a mare liberum or freedom of the seas. In order to fit Grotius’s concept of ownership of the seas, a state could claim only so much of the sea as it could effectively occupy, a legal euphemism meaning control. The widely accepted belief was that the greatest control that could be exercised over the territorial sea was the distance that a cannon defending the shore could fire. This gradually came to be identified with a 3-mile-wide territorial sea. Whether the romantic beginnings of the 3-mile territorial sea are, in fact, true, there is little doubt that it became almost universally accepted.4
It was not until the end of World War II that the permissible breadth of the territorial sea was seriously questioned. The war had resulted in an exponential growth in ocean-related technology that raised the potential for reaping vast benefits from the sea at greater and greater distances from shore. Thus, states acquired a motive to expand the band of water in which they were entitled to exercise exclusive, or nearly exclusive, control.5
Another factor that contributed to the demise of the universal acceptance of the 3-mile limit was the dismantling of colonial empires in the wake of World War II. The emerging nations no longer felt bound by the rules of international law formulated by their colonial rulers and may have in fact sought to flex their new-found political muscle in rejecting long- held international law standards.
Despite the erosion of support, the United States and a number of other maritime powers have continued to adhere to the notion that, until a widely accepted international agreement provides otherwise, the only standard that international law recognizes is a 3-mile territorial sea. In their view, global acceptance of a 3-mile territorial sea for hundreds of years has not been overcome by widely varying territorial sea claims over the past 20 years.
Use of the High Seas: Assuming that the U. S. position is correct and the Gulf of Sidra comprises high seas, the next relevant issue to be addressed is the authority of the United States to conduct a missile-firing exercise in the area. Since the use of live missiles clearly poses a threat to shipping in the area, would not such an exercise deny the very freedom of the sea that Grotius espoused more than 300 years ago? The answer to this question is that the freedom of the seas is not an absolute right but rather a relative freedom that must be exercised with regard to the rights of others.
The 1958 Geneva Convention on the High Seas, like its sister convention on the territorial sea, may be said to represent customary international law. It provides that “the high seas being open to all nations, no State may validly purport to subject any part of them to its sovereignty.” The Convention then goes on to provide that freedom of the high seas comprises inter alia:
- Freedom of navigation
- Freedom of fishing
- Freedom to lay submarine cables and pipelines
- Freedom to fly over the high seas.
The lawyer’s much invoked phrase “inter alia” is key here because it means “among others.” In other words, the list of enumerated freedoms is not exhaustive but merely illustrative of some high seas freedoms. After listing the four enumerated freedoms, the convention specifies that:
“These freedoms, and others which are recognized by the general principles of international law, shall be exercised with reasonable regard to the interests of other states in their exercise of the freedom of the high seas.”
The use of the high seas to conduct military exercises in preparation for the right of national self-defense has long been recognized as a legitimate high seas freedom. This has even included the use, for a limited period of time, of an expansive area of ocean necessary for the safe testing of a nuclear weapon. In all cases, however, the key test in determining the lawfulness of any military exercise or operation is its reasonableness in light of other competing uses. Among the factors to be considered in evaluating the reasonableness of an exercise on the high seas are the size of the ocean area involved, the density of traffic, other planned uses of the area, the precautions taken to ensure the safety of others, and the duration of the exercise. Applying the above criteria to the exercise in question, there is little doubt that it was a lawful use of the high seas. The area was, after all, selected because of its relative isolation from the main traffic routes in the Mediterranean and consequent low shipping density. The exercise was scheduled to last for only two days, and the area was not excessive in terms of the size of an area necessary to accommodate missile trajectories and the needs of safety. Finally, adequate measures were taken for the safety of others, including promulgating warning notices and the use of aircraft to alert ships or aircraft which might stray into the area.
The Use of Force: If the U. S. aircraft were operating over the high seas, the firing of the Libyan missile was clearly an illegal use of force. Article 2(4) of the United Nations Charter expressly prohibits the use or threat of force against the territorial integrity or political independence of any state. Article 2(4) is widely interpreted to preclude the use of force against the armed forces of a state, no matter where such armed forces were operating lawfully. Having been the objects of an illegal attack, the American aircraft were entitled to respond with force in self-defense, a right preserved by Article 51 of the United Nations Charter.
The lawfulness of any claim of self-defense is measured by the dual requirements of “actual necessity” and “proportionality of response.” Having a missile fired at them by an aircraft that took evasive action and gave no indication that the firing was accidental could reasonably lead to the presumption that the American fighter planes would be subject to further attack. Likewise, the requirement that the responding coercive force be proportional to the threatened harm requires little discussion. It is axiomatic that the use of deadly force is lawful when defending against deadly force.
If, on the other hand, the assumption that the area in question was high seas were abandoned, the legal conclusion regarding the use of force in the present factual situation would not change. If the Gulf of Sidra were, in fact, part of Libya’s territory, then Libya would, of course, be entitled to demand that the exercise be terminated and that U. S. ships and aircraft leave the area. Absent a showing that such a request was made to the United States or that the United States failed to heed a United Nations request not to conduct the exercise, the use of force would not be authorized. Even were such actions taken, the Libyan aircraft would not have been justified in firing at the U. S. aircraft (unless the latter clearly showed a hostile intent) without first attempting less coercive means, such as signals or warnings, to cause the aircraft to leave the area. Accordingly, under either scenario, the two U. S. aircraft would be entitled to defend themselves against any sudden, unprovoked attack.
Prospects for the Future: The Third United Nations Conference on the Law of the Sea has been meeting periodically since 1973. The 11th session of the conference is scheduled to resume in New York in March of this year. It is fairly likely that a comprehensive law of the sea treaty will be opened for signature sometime in 1982 or 1983. It had been assumed widely that a treaty would have been ready
for signature in the summer of 1981. However, shortly before the March 1981 session, the new administration announced that it was not prepared to Proceed with negotiations until it had an opportunity to conduct a thorough review of the draft treaty. Thus, when the Gulf of Sidra incident occurred, some contended that if the United States had not delayed the conference, the conflicting legal claims would have been resolved and the incident therefore would not have occurred. Such an assertion is simply not correct.
Generally speaking, negotiations on most provisions of the draft treaty are considered complete, including provisions regarding navigation and dispute settlement. Article 10 of the draft convention repeats, verbatim, Article 7 of the Territorial Sea Convention. Thus, the draft convention would limit bays to a maximum width at their mouth of 24 miles except in the case of historic bays. Therefore, even assuming that both Libya and the United States become signatories to the draft convention, it will have no impact in resolving the impasse between the two countries regarding the juridical status of the Gulf of Sidra. Although the convention would explicitly limit the breadth of the mouth of bays to no more than 24 miles, Libya could still point to the undefined historic bays exception in support of its claim.
The draft treaty contains an elaborate section dealing with dispute settlement. The parties undertake to settle disputes concerning interpretation of the convention by peaceful means. The convention then provides several forums by which parties may select, in advance, means to settle disputes, and it also provides a means of dispute settlement when the parties have chosen different methods. All of this seems ideally calculated to resolve the dispute between the United States and Libya concerning the status of the Gulf of Sidra as an historic bay. Unfortunately, however, such is not the case. The reason is that Article 298 provides that a party may, at the time of ratification, declare that it does not accept compulsory dispute settlement for certain categories of disputes, including those involving historic bays or titles. Although the optional exception is conditioned on the party agreeing to submit the matter to conciliation if the issue cannot be resolved by agreement between the parties within a reasonable period of time, such will not, as a practical matter, resolve the dispute. The annex on conciliation expressly provides that the report of the conciliation commission, including any conclusions or recommendations, is not binding on the parties.
It is, of course, unfortunate that the Law of the Sea Convention will probably not resolve such a fundamental question as the juridical status of the Gulf of Sidra. While the provisions applicable to bays would seem to resolve the question in a manner identical to the 1958 Territorial Sea Convention (to which Libya is not a party), the historic bay exception provides a loophole that would permit Libya to ratify the convention and continue to adhere to the claim that the Gulf is internal waters.
The lack of a dispute settlement mechanism which could authoritatively resolve the issue means that we must rely on the moral suasion of world opinion to reject the Libyan claim. That should not, however, lead to the conclusion that there is no such thing as international law. Such a conclusion is clearly wrong. The surest proof that international law exists is the manner in which states behave in the face of an alleged violation of such law. Instead of arguing that there is no such thing as international law, states seek to justify their conduct on the basis of international law. Thus, Adolf Hitler sought to justify his invasions on the basis of self-defense; the Soviets justify their presence in Afghanistan as an invitee supporting the legitimate government; and Libya will undoubtedly argue that it is entitled, as a matter of international law, to claim the Gulf of Sidra as an historic bay.
The conclusion that all of this suggests is that the process of claim and counterclaim, by which international law evolves, demands that the United States continue to assert fully its legal rights in disputed areas such as the Gulf of Sidra. In the absence of such an assertion, our rights will surely atrophy. Although the Gulf of Sidra is not of major strategic interest to the United States, the crucial principles involved are life threatening to the principles of the freedom of navigation on which this country has prospered.
1. Declaration of the Libyan Arab Jamahiriya Regarding the Jurisdiction of the Gulf of Sidra, 11 October 1973.
2. Convention of the Territorial Sea and Contiguous Zone done at Geneva on 29 April 1958 (entered into force for the United States, 10 September 1964) 15 UST 1606, HAS 5639.
3. A.W. Rovine. editor. Digest of United States Practice in International Law (Washington, D.C.: Dept, of State, 1974) pp. 293-294. (Dept, of State file number P74 0020-2088.)
4. For discussion of the 3-mile territorial sea, see Heinzen, “The Three Mile Limit: Preserving the Freedom of the Seas," Stanford Law Review, 1959, p. 630.
5. R. Osgood, et al. Toward a National Ocean Policy: 1976 and Beyond (Washington, D.C.: U. S. Government Printing Office, 1975), pp. 20-21.