Some legal problems
arising from the use of
This article discusses difficulties that
may arise from military uses of the seas
in the light of uncertainty about the
rules of international law.
The author is based at the Faculty of Law,
University of Manchester, UK.
This paper was delivered at the Interna-
tional Colloquium on the Law of the Sea
and the Interests of Developing Countries,
held at the lnstitut National d’Enseigment
Superieur des Sciences Juridiques et
Administratives, Tizi-Ouzou, Algeria, in
March 1986.
0308-597W86/030171-14$03.00 0 1986 Butterworth
the seas for military
purposes
A. V. Lowe
The aim of this article is to identify those areas of the law in which
disputes seem likely to arise from military uses of the seas. The article
will concentrate upon difficulties that may arise under the 1982 UN Law
of the Sea Convention (LOSC), because it seems likely that most
developing states, and perhaps also the majority of developed states,
will become parties to that Convention. For the most part, the article
will be concerned with disputes arising in circumstances other than a
state of war: and by ‘war’ is meant a factual state of general armed
hostilities between two or more states, rather than any more precise
legal state of war - if, indeed, it is possible to speak properly of a legal
state of war following the prohibition on the threat or use of force
against the territorial integrity or political independence of a state, in
Article 2(4) of the UN Charter.
The problems which will be discussed are, almost without exception,
the result of uncertainty concerning the rules of international law, itself
the result of conflicting interpretations of the rights and duties adopted
by states. It should be emphasized at once that it is not claimed that in
all cases disputes will arise, but simply that the uncertainty of the law
makes disputes possible, and that, where a deterioration in relations
between two states does arise for some reason, the antagonism might
find expression in an insistence upon a right in international law by one
state which the other contests.
Internal waters
Although the 1982 Convention has very little to say about the legal
regime of internal waters it is appropriate to begin with that zone
because several recent and current disputes have arisen in relation to it.
Internal waters are those waters which lie landward of the baseline
from which the territorial sea and other maritime zones are measured
(LOSC, Article S(1)). Internal waters thus include bays (LOSC, Article
lo), rivers (LOSC, Article 9), ports (LOSC, Article ll), and waters
enclosed by straight baseline systems of the kind in issue in the
& Co (Publishers) Ltd 171
Some legal problems arising from the use
‘ICJ Reports, 1951, p 116.
*There is more to be said in favour of the
Libyan claim than might at first appear. It is
arguable that a dynamic conception of
post-colonial international law should
accommodate relatively new claims to
‘historic’ waters, at least on the basis of
reciprocity - so that the validity of such
claims would be opposable at least to
states making similar claims: see, for
example, F. Francioni, ‘The Status of the
Gulf of Sirte in International Law’, Syra-
cuse Jour#a/ of fntern~tioffat Law and
Commerce, Vol 11, 1984, p 311.
“UN Law of the Sea EWetin, Vol 3, March
1984, p 16.
4A state of tension was reported during US
naval manoeuvres in the Gulf of Sirte in
February 1986.
5Australian t~ts~ationat Law News, 1983,
p 360. The Mew Zealand government
backed down from plans to exclude such
ships from its territorial waters. The most
recent draft law applies the exclusion only
to internal waters: The Times (London), 11
December 1985, p 5.
172
of ihe seas for military purposes
Anglo-Norwegian Fisheries case’ (LOSC, Article 7(l)) or drawn along
highly-unstable coastlines such as deltas (LOSC, Article 7(2)). They are
under the sovereignty of the coastal state (LOSC, Article l(l)), subject
to a right of innocent passage for foreign ships in waters which became
internal waters only by virtue of the use of straight baseline systems
(LOSC, Article g(2)). It is the latter provision which gives, for example,
foreign ships a right of passage through the waters between the
Hebrides and the Scottish coast in the north of the UK, despite the fact
that those waters lie within the British baselines.
Delimitation disputes
Two particular difficulties have arisen in connection with internal
waters. The first concerns their extent. Neither the 1982 Convention nor
the 1958 Geneva Conventions on the Law of the Sea which preceded it
deals with the question of historic bays - that is to say, bays claimed by a
coastal state not on the basis of the application of the Conventional rules
on the drawing of baselines across bays, but on the basis of an historic
title, establishing an exceptional claim on the basis of long and peaceful
possession of the waters in question. Several states claim historic bays:
for example, the Gulf of Taranto claimed by Italy, and the Gulf of Sirte
claimed by Libya. Disputes arise over the validity of the claims. Thus, if
the Gulf of Sirte is property to be considered an historic bay, as Libya
claims, the actions of the USA in shooting down two Libyan aircraft
which sought to expel aircraft from the USS Nimitz from those waters in
1981 would have been unlawful; but if, as the USA claimed, the Gulf is
not an historic bay then the waters would be high seas and the US action
a lawful exercise of self-defence arising from an unlawful Libyan inter-
ference with the exercise by the US of the freedom of the high seas2
These disputes are typical of those which arise when the validity of
national claims to maritime zones is disputed. Other instances may well
arise in future from other disputed baselines. A further example, which
has been the subject of a diplomatic protest by France, is the
Vietnamese straight baseline system and claim to the Gulf of Bat Bo
(Gulf of Tonkin) as an historic bay.” In principle, the validity of such
claims can be easily settled by reference to an international tribunal, as
occurred in the Anglo-Norwegian Fisheries case itself. But historic bays
(though not straight baseline systems) may be excluded from the
compulsory LOSC dispute settlement procedure (LOX, Article
298(a)(i)), and it would be understandable if states were reluctant to
submit questions of the extent of national territory to third-party
settlement. Such disputes seem, therefore, destined to continue to
arise,’ and to be settled in the long term only by the determination and
ability of the states concerned to enforce their respective claims by the
threat or use of force.
Access to internal waters
The second problem arising in relation to internal waters concerns the
admission of nuclear-powered or -armed ships to ports. In 1985 New
Zealand joined other states, such as Japan, in proclaiming a policy of
excluding such ships from its internal waters.” As far as warships are
concerned no legal problem arises, because it is plain that warships have
no right under general international law to enter internal waters (apart
from the exceptional right of innocent passage recognized in LOSC,
MARINE POLICY July 1986
 Some legal problems arising from the use of the seaF for military purposes

Article S(2), above), although they may have such a right under a
bilateral treaty. However, it has sometimes been argued, for instance in
the Aramco case,6 that merchant ships have such a right. Nonetheless, a
close examination of state practice and doctrine shows clearly that no
such right of entry to internal waters exists.’
While the refusal of states to allow certain categories of vessel into
their ports therefore creates no legal problems, it may give rise to
political difficulties, especially where entry is refused to the vessels of a
state with which some kind of mutual defence agreement has been
concluded.

Territorial sea
Now that the question of the breadth of the territorial sea has been
settled, by fixing it at a maximum of 12 miles (LOX, Article 3), one of
the main sources of controversy has been eliminated. The juridical
status of the territorial sea, which is under the sovereignty of the coastal
state subject to the right of innocent passage for foreign ships, is also
beyond doubt (LOSC, Article 2).* From this it follows that the coastal
state has complete control over the use of the territorial sea for the
deployment of weapons systems and other military devices. The 1971
Treaty on the Emplacement of Nuclear Weapons and other Weapons of
Mass Restriction on the Sea Bed’- which prohibits the emplacements of
such weapons (which could include biological and chemical weapons of
mass destruction), and of installations specially designed to store, test or
use them, beyond twelve miles from the shore - does not apply to
internal or territorial waters. States remain free to deploy such weapons
within the 12-mile zone if they so choose. However, the 1963 Nuclear
Test Ban Treaty”’ forbids atmospheric and underwater testing of
nuclear weapons in the territorial sea, as well as on the high seas.
The major remaining difficulties in relation to the territorial sea arise
out of the question of the scope of the right of innocent passage. This
%ternational Law Reports, Vol27, 1985, p question may be divided into two: first, which ships enjoy the right of
117. innocent passage; and second, what is ‘innocent’ passage.
‘A.V. Lowe, ‘The right of entry into mari-
time ports in international law’, San Diego As is well known, the combination of the votes of states demanding
Law Review, Vol 14, 1977, p 597. that foreign warships obtain prior authorization for passage through the
‘This and other general topics are discus- territorial sea with the votes of states insisting that warships enjoy the
sed more fullv in RR. Churchill and A.V.
Lowe, The Law of the Sea, Manchester, right of innocent passage without any prior notification to or authoriza-
1983. tion from the coastal state led to the rejection at the 1958 Law of the Sea
WK Treaty Series, No 13, 1973; RR.
Conference of a proposal that warships should have a right of innocent
Churchill et al, eds, New Directions in the
Law of the Sea (hereafter, New Direc- passage subject only to prior notification of their passage. As a result,
tions), Vol 1, p 288. the 1958 Convention on the Territorial Sea and Contiguous Zone
“UN Treaty Series, Vol 480, p 43; New contains no provision specifically dealing with the right of innocent
Directions, Vol 1, p 285.
“See P. De Cesari et al, index of Multi- passage in relation to warships. States are divided in their opinions of
lateral Treaties on the Law of the Sea, the legal consequences of this omission. Some, such as Bulgaria,
Milan, 1985, p 122 ff. Colombia, Czechoslovakia, Hungary, Romania and the USSR, have
“/bid, and see the US Oceans Policy
Statement. 10 March 1983. International maintained that warships enjoy no right of innocent passage.” Others,
Legal Materials (hereafter ILM), Vol 22, such as Australia, Denmark, the Netherlands, the UK and the USA
1983, p 461. have rejected this interpretation. ‘*
13The US Department of State Geog-
rapher lists 38 states as demanding prior The present position appears to be that there is no general agreement
notification or permission for the entry of upon the right of innocent passage for warships’” and that consequently
foreign warships into the territorial sea:
the rights of passage for such ships turns on the issue of opposability.‘4
National Maritime Claims 1958-85, p 10.
‘%ee Churchill and Lowe, op tit, Ref 8, pp In practice, however, it is common for states asserting a right of
8-10. innocent passage for warships to give low-level notification of mtended

MARINE POLICY July 1986 173

Some legal problems arising from the use of the seas for military purposes

passages, informally and without admission of legal obligation, to

coastal states insisting upon prior notification or authorization for
passage by warships. While this extra-legal modus vivendi serves well in
most circumstances, it clearly leaves in doubt the right and the intention
of coastal states to deny passage to warships in times of deteriorating
international relations.
The second major problem arises from the redefinition of innocent
passage in Article 19 of the 1982 Convention. This new definition is
already beginning the process of transition into customary international
law by its adoption in state practice: it has been adopted, unchanged or
with minor modification, in the laws of states such as Democratic
Yemen, Equatorial Guinea, and France.‘” Article 19 begins, in
Paragraph (l), by restating the definition of innocence adopted in the
1958 Convention:

Passage is innocent so long as it is not prejudicial to the peace good order or

security of the coastal State. Such passage shall take place in conformity with
this Convention and with other rules of international law.

However, it goes on, in Paragraph (2), with novel provisions which state
that:

Passage of a foreign ship shall be considered to be prejudicial to the peace, good

order or security of the coastal State if in the territorial sea it engages in any of
the following activities,
and then it lists in twelve paragraphs a wide range of activities including
fishing, wilful pollution, research and ‘any other activity not having a
direct bearing on passage’. This creates two distinct problems. The first
concerns the relationship between Paragraphs (1) and (2). It is not clear
whether Paragraph (2) is meant to be an exhaustive, or merely
illustrative, list of the circumstances in which passage becomes
non-innocent. Moreover, if it is illustrative, it is not clear whether the
fact that Paragraph (2) consists of a list of proscribed activities should be
taken to mean that a ship can only lose its innocent character if it
engages in some activity prejudicial to coastal state interests so that, for
example, the mere fact of the passage of a Soviet or US fleet could not
be said to be non-innocent in the absence of some specific activity
engaged in by the ships to the prejudice of the coastal state. While
innocent passage and coastal sovereignty are two equal principles
co-existing in the territorial sea, and neither can require a restrictive
interpretation of the other, it must be said that there is no evidence that
states regard the 1982 formula as having restricted the wide discretion
given to the coastal state under the 1958 formula to categorize passage
as non-innocent, subject, of course, to the possibility of an inquiry into
the adequacy of the state’s justification for such a categorization by an
international tribunal.
Far from restricting a coastal state’s right to categorize passage as
non-innocent (and hence, to prevent the passage), a second kind of
uncertainty in Article 19(2) of the 1982 Convention suggests that coastal
states may now have wider rights to prevent passage than they had
formerly. The drafting of some of the ‘proscribed activities’ clauses is
remarkably wide. Clause (2)(a) refers to:
‘5Democrat4c Yemen. UN Leoislative any threat or use of force against the sovereignty, territorial integrity or political
Series B/19, 1977, p 21; Eiuatorial
Guinea, 1984, UN Law of fhe Sea Bulletin, independence of the coastal State, or in any other manner in violation of the
Vol 6, October 1985, p 19; France, 1985, principles of international law embodied in the Charter of the United Nations
ibid, p 14. (emphasis added).

174 MARINE POLICY July 1986


“See the discussion in W.M. Reisman,
‘The regime of straits and national secur-
ity’, American Journal of International Law,
Vol74, 1980, pp 48,62-65.
Moore, ‘The regime of straits and UN-
CLOS’, ibid, pp 77, 117-l 19.
MARINE POLICY July 1986
Some legal problems arising from the use of the seas for military purposes
The threat or use of force against the coastal state is plainly enough to
render passage non-innocent under any reasonable interpretation of the
concept of innocence; but the ‘threat or use of force in any other manner
. . . ’ is a different matter. lh What if, for instance, a fleet of warships is
passing through the territorial sea in order to stand off the coast of
another state, perhaps as a warning to that state not to act in a particular
manner? That display of force might be considered to be a threat to the
political independence of that other state, and so to violate Article 2(4)
of the UN Charter. Would the coastal state through which the fleet
passes then be entitled to deny passage (assuming, avguendo, that a
right of passage for warships exists) on the ground that it falls within
Paragraph (2)(a)? There is a good argument for saying, no. Paragraph
(2) refers to activities in the territorial sea, and therefore the threat
must, it seems, exist at the time of passage: which is a mere preliminary
step towards action which might be considered to be a threat to the
political independence of a state does not necessarily itself constitute a
threat or otherwise violate Article 2(4); international law, unlike
municipal law, is not concerned with ‘attempts’ or ‘inchoate offences’.
But the point made here, as in other areas identified in this paper, is not
that the law does allow states to interfere with or prevent the passage of
foreign ships on the basis that the extended interpretation of the law is
the correct one, but rather that there is sufficient uncertainty in the law
for a state which has the political will so to interfere to cite these
provisions as a justification for its action, and to this extent the action
might the more easily be taken.
Disputes may arise under other clauses of LOSC Article 19(2). For
example, there are two widely-drafted clauses specifying activities
involving information gathering which are incompatible with innocence:
clause (c) refers to ‘any act aimed at collecting information to the
prejudice of the defence or security of the coastal State’, and clause (j)
refers, without qualification, to ‘the carrying out of research or survey
activities’. Undoubtedly many activities falling within these categories
could formerly have been considered prejudicial to the peace, good
order or security of the coastal state, and hence non-innocent; but the
categorical and wide drafting of these provisions make it easier for
coastal states to justify denials of passage to foreign ships engaged in any
of the listed activities.
Before leaving the definition of innocence in Article 19 mention
should be made of the two further clauses in Paragraph 19(2). Clause (f)
stipulates that ‘the launching, landing or taking on board of any military
device’ is incompatible with innocence. In so far as this forbids, for
example, the deployment of sonar arrays by foreign ships in passage,
this provision is uncontroversial. But it is foreseeable that states might,
in the absence of a definition of ‘military device’ in the 1982
Convention, tend to regard any device on board a warship as a military
device, and to give a wide interpretation to the concept of ‘launching’.
Would the deployment by a passing warship of a towed sensor for
submarine detection constitute a ‘launching’ of a ‘military device’? What
if the sensor were put overboard before the ship entered the territorial
sea: would the towing of it within the territorial sea still fall within clause
(f)? This example also raises the question of the scope of another clause.
At the end of the set of clauses specifying activities incompatible with
Compare J.N.
innocence is clause (l), which refers to ‘any other activity not having a
direct bearing on passage’. The purpose of this clause might have been
175
Some legal problems arising from Ihe use of the seas for military purposes

simply to make clear that the activities specified in the other clauses do
not constitute an exhaustive list of activities which may properly be
considered prejudicial to the peace, good order and security of the
coastal state and hence incompatible with innocent passage. Its effect,
however, is to introduce considerable doubt into the scope of innocent
passage. Is the shadowing of one warship by another, or the tracking of
a submarine, an ‘activity not having a direct bearing on passage’? Would
the transfer on board a ship of missiles such as Seadart or Seawolf”
from their hangers to their launchers amount to such an activity, and
thereby automatically put the ship outside the scope of innocent
passage?
These examples, by no means exhaustive, illustrate the possibility of
conflicting interpretations of the scope of the right of innocent passage,
even assuming that the coastal flag states are agreed that warships have
a right of innocent passage in the first place. Further difficulties may
arise from attempts to take action against vessels which have stepped
outside their right of innocent passage. For example, states have
sometimes claimed a right not simply to expel foreign warships from
their territorial sea (as is clearly permitted: see LOSC Article 30), but to
arrest and detain them. This was done by North Korea in the case of the
USS Pueblo, an electronic surveillance ship seized for spying, allegedly
within North Korea’s territorial sea.ls The legality of the arrest and
detention of warships in such cases is, however, at best highly
controversial: the weight of juristic opinion would probably support the
view that such action is precluded in all the normal circumstances by the
sovereign immunity to which warships are undoubtedly entitled. State
practice tends to support this. For example, Sweden adopted new
regulations concerning unauthorized entrants into its internal and
territorial waters, in the wake of a long history of unauthorized
incursions by unidentified submarines, and in particular the 1981
incident in which a Soviet submarine ran aground near the Karlskrona
naval base. The provision concerning the territorial sea stated that:

A foreign submarine which is found submerged in the territorial sea shall be

required to leave this territory. If necessary, force of arms shall be used. If
necessary, the Supreme Commander may rule that force of arms shall be used
without prior warning.

Here, no right to arrest or detain the vessel, or even to force it to the

surface, was claimed (although the provision concerning unauthorized
submarines in infernal waters did assert a right to compel surfacing and
to detain the submarine). The sovereign immunity of submarine and
surface warships would preclude their arrest in the normal course of law
enforcement by the coastal state in the territorial sea. None the less, it is
at least arguable that in some circumstances the right of a state to take
action in self-defence may justify such detention.” Could the immunity
of a foreign warship, for example, prevent a coastal state from stopping
the warship and demanding from it the return of an item of military
‘%ee D.P. O’Connell, The influence of equipment of critical importance to coastal state security, which the
Law on Sea Power, Manchester, 1975, p
105.
warship had ‘stolen’ from the bed of the territorial sea? Strict adherence
‘%evue g&&ale de droit international to the rules of sovereign immunity would give an affirmative answer: but
public, Vol 72, 1968, p 768. as is being realized in current discussions on the inviolability of
lQSee I. Delupis, ‘Foreign warships and
immunity for espionage’, American Journal diplomatic immunity, there may be very limited circumstances where
of international Law, Vol 78, 1984, p 53. the principles of self-defence override the traditional immunities.

176 MARINE POLICY July 1986


“ICJ Repotis, 1949, p 1.
“See, for example, the works cited in Ref
16.
MARINE POLICY July 1986
Some legal problems arbing from the use of the seas for military purposes
International straits
The 1958 Convention on the Territorial Sea and Contiguous Zone made
only one special provision for those parts of the territorial sea which
constitute straits used for international navigation: under Article 16(4),
the right of innocent passage could not be suspended in such straits,
even though it could be suspended temporarily in other, specified areas
of the territorial sea. Following the Corfu Channel case,*” there was no
doubt that the right of passage through straits extended to warships. At
the insistence of those states with a particular interest in securing the
maximum freedom of navigation for their fleets, the 1982 Convention
made much more detailed provisions for straits, establishing a distinct
legal regime and right of ‘transit passage’ in respect of the most
important of them. The right of transit passage is not conditional upon
any criterion of’innocence (LOSC, Article 38(2)) (although there is an
independent obligation to refrain from the threat of a use of force, and
to comply with generally accepted navigation and pollution regulations
and certain coastal laws while in transit - LOX, Articles 39, 42), and it
includes a right of overflight. In these two respects it differs from the
right of innocent passage. But many western writers argue that there is a
third important difference.” LOSC Article 39(l)(c) requires transiting
ships and aircraft to:
refrain from any activities other than those incidental to the normal modes of
continuous and expeditious transit . .
The reference to ‘normal modes’ is said to imply that submarines may
exercise their right of transit passage submerged. Indeed, since there is
here no provision corresponding to the article (LOSC, Article 20)
obliging submarines to exercise their right of innocent passage on the
surface, it would be difficult to disagree with this interpretation.
The transit passage provisions were intended to secure free and
uninterrupted passage through international straits. Although there are
no express provisions concerning the right of the ‘straits states’ to arrest
transiting ships to be found in the ‘straits’ part (Part III) of the 1982
Convention, the tenor of that part and the fact that in the part of the
Convention dealing with pollution it was thought necessary to include
an article specifically giving the coastal state the right to enforce its
navigation and pollution laws against foreign merchant ships, but only in
cases where ‘major damage to the marine environment of the straits’ is
caused or threatened, both suggest that in normal circumstances straits
states may not take enforcement action against foreign ships involving
an interruption of their transit. There are no provisions corresponding
to those giving the coastal state the right to take the necessary steps to
prevent passage which is not innocent (LOSC, Article 25) and to require
warships violating coastal state laws to leave the territorial sea (LOSC,
Article 30). It is therefore arguable, and doubtless will be argued by the
major maritime states, that the passage of warships may never be
interrupted, and that if they should violate local laws or other duties
(such as the duty to refrain from the threat or use of force), the only
options open to the coastal state are to allow the ship to proceed and to
pursue the matter through diplomatic channels or, in extreme cases, to
have recourse to the right of self-defence under Article 51 of the UN
Charter.
The straits provisions do admit a second interpretation. LOSC Article
38(3) provides that:
177

22uN Law Of the Sea *u1etin, “01 51 July
1985, p 19.
%N Law of the Sea Bulletin, Vol 6,
October 1985, pp 10, 13.
Some legal problems arising from the use of the seas for military purposes
Any activity which is not an exercise of the right of transit passage through a
strait remains subject to the other applicable provisions of this Convention.
Article 38(2) provides that:
Transit passage means the exercise in accordance with this Part of the freedom
of navigation and overflight solely for the purpose of continuous and expeditious
transit of the strait.
It could therefore be argued that a warship engaged in, say, tracking the
submarines of a third state as they transit the strait, or using passive
receiving equipment to monitor broadcasts from the coastal state, is
engaged in an ‘activity which is not an exercise of transit passage’, which
therefore fails under the ‘other applicable provisions’, ie the territorial
sea provisions. In short, even if it were conceded that there could be no
interference with warships in transit passage, it could be argued that
warships, and other ships, can put themselves entirely outside the legal
regime of transit passage by engaging in extraneous activities, with the
result that they are then subject to the normal rules concerning innocent
passage, including the rights of the coastal state to prevent non-innocent
passage and to expel warships refusing to comply with coastal state laws
(see above).
Let the point be made once more: it is not suggested that states will
take up these opposing interpretations, but simply that these interpreta-
tions offer convenient justifications for the forcible assertion or denial of
passage, if the political climate should ever render such action
expedient. The uncertainty thus creates, or rather magnifies, the risk of
confrontation between states.
It should be noted that the points made here in relation to the right of
transit passage are equally applicable to the practically identical right of
archipelagic sealanes passage. An additioral difficulty may arise in this
context following the Philippine declaration that the regime of transit
passage does not apply to straits connecting archipelagic waters with the
EEZ or high seas. 22 The Philippine declaration is plainly inconsistent
with the Convention provisions creating a right of archipelagic sealanes
passage through archipelagic waters for transit between one area of the
high seas or EEZ and another. The declaration, and the Philippine
legislation which reflects the same position, have been formally
objected to by states such as Czechoslovakia and the USSR,23 and is
quite clearly at variance with the understanding of the nature of transit
passage shared by the NATO states.
Exclusive economic zones
In the territorial sea the sovereignty of the coastal state creates a
presumption against the existence of any rights for foreign ships not
expressly recognized in customary or treaty law. Thus, a ship seeking,
for example, to enter the territorial sea in order to retrieve a flight
recorder from a crashed aircraft would have to show that it had some
right to do so; the burden of proof would not be on the coastal state to
show that international law prohibits such activities. On the high seas,
on the other hand, the presumption is that ships may do as they choose,
being subject in principle to the exclusive jurisdiction of the flag state.
The exclusive economic zone (EEZ), which extends from the outer
limits of the territorial sea to the 200-mile limit as measured from the
baseline (LOSC, Article 57), falls into neither category. It is a zone
subject to its own specific legal regime (LOSC, Article 55), and
MARINE POLICY July 1986
 Some legal problems arising from the use of the seas for military purposes

although specific rights (including jurisdiction over living and non-living

resources of the sea, seabed and subsoil, artificial islands, marine
scientific research and marine pollution: LOSC, Article 56) are given to
the coastal state, and also to other states (which enjoy the freedoms of
navigation, overflight and pipe and cable-laying and other international-
ly lawful uses of the sea related to these freedoms: LOSC, Article 58),
there is no presumption to fall back on in the case of rights not
specifically allocated. Instead, it is provided in LOSC Article 59 that:

In cases where this Convention does not attribute rights or jurisdiction to the
coastal State or to other States within the exclusive economic zone, and a
conflict arises between the interests of the coastal State and any other State or
States, the conflict should be resolved on the basis of equity and in the light of all
the relevant circumstances, taking into account the respective importance of the
interests involved to the parties as well as to the international community as a
whole.
Conflicts are easy to foresee. For example, Brazil, Cape Verde and
Uruguay, in declarations made on signing the 1982 Convention, stated
that they did not consider the Convention to permit military exercise or
manoeuvres or weapons tests within the EEZ without the consent of the
coastal state.24 On the other hand, Italy has stated plainly that

. the coastal State does not enjoy residual rights in the exclusive economic
zone. In particular, the rights and jurisdiction of the coastal State in such zone
do not include the right to obtain notification of military exercises or
manoeuvres or to authorise them.25

No doubt other states can be found which support the Brazilian

position, and in view of Ambassador Koh’s clear statement that it was
the ‘general understanding’ at UNCLOS III that the Convention text
would permit the conduct of military activities in the EEZ,26 it is certain
that there will be other states sharing the Italian view. None the less, the
‘general understanding’ was not translated into a treaty position, and as
a matter of law it is difficult to avoid the conclusion that the legality of
unauthorized naval maneouvres in the EEZ should be settled according
to Article 59. Unfortunately, Article 59 is so utterly vague that in the
absence of any compulsory dispute settlement procedure for disputes
concerning military activities (see LOSC, Article 298(l)(b)) there seems
to be little chance of an authoritative determination of the legality of
such activities emerging. This is a further area where the lack of clarity
in the Convention is likely to result in international friction, as states
with conflicting interpretations of the text seek to exercise their rights as
they perceive them. Indeed, the conduct of unauthorized naval
manoeuvres within the EEZs of states such as Brazil might well be seen
as a prudent step by states anxious to avoid any impression that they are
24UN Law of the Sea Bulletin, Vol 5, July acquiescing in the view that such manoeuvres need coastal state
1985, pp 6-7, 8, 24. consent.
25/hid, pp 15-16. Similar difficulties arise in respect of the emplacement of military
% J. Van Dyke, ed, Consensus and
Confrontation: The United States and the devices in the EEZ by foreign warships acting without the permission of
Law of the Sea Convention, Honolulu, the coastal state.27 Article 60 of the 1982 Convention gives the coastal
1985, pp 303-304. state the exclusive right to authorize the construction, operation and use
‘%ee T. Treves, ‘Military installations,
structures and devices on the seabed’, of artificial islands, of installations and structures for economic
American Journal of International Law, Voi purposes, and of installations and structures which may interfere with
74, II 808. R.D. Zedalis. ‘A resoonse’. the exercise of the rights of the coastal state in the EEZ. No mention is
Ameiican Journal of lntern&ional Law, Voi
74, 1981, p 926; T. Treves, ‘A reply’, ibid, p made of non-economic installations which do not interfere with the
933. exercise of coastal state rights, and such devices as sonar arrays will in

MARINE POLICY July 1986 179

Some legal problems arising from the use of the seas for military purposes

most cases fall into this category. Furthermore, it is arguable that the
deployment of sonar arrays is an internationally lawful use of the seas
associated with the freedom of cable-laying. States have taken different
views of this question. Brazil, Cape Verde and Uruguay have declared
that the coastal state’s exclusive rights to authorize installations extend
to installations and devices of all kinds.*s The laws of Burma, Guyana,
Honduras, India, Indonesia, Maldives, Mauritius, Pakistan, Philip-
pines, Seychelles, Sri Lanka, Vanuatu and PDR Yemen contain
provisions to similar effect. 29 Italy, on the other hand, has declared that
such rights are limited to the categories of installation listed in Article
60,30 with the implication (which is supported by the fact that UNCLOS
III decisively rejected a proposal to prohibit the deployment of military
installations or devices, or installations of any other kind, on the
continental shelf without the permission of the coastal state)” that the
deployment of military devices is permissible unless it interferes with
coastal state rights. Italy’s position is doubtless shared by most, if not
all, of its NATO allies. This, again, is a dispute which must be resolved
by the application of Article 59. Of course, the uncertainty is not
confined to sensor arrays: similar problems arise in respect of devices of
other kinds deployed in the EEZ. In principle the question of the
legality of the deployment of unarmed mines, for example, should be
approached in the same way, although the deployment of weapon
systems seems inherently less likely to be approved under the equitable
criteria of Article 59 than do intelligence-gathering systems. Armed
mines, it should be noted, give rise to different problems. Because they
so dramatically impair the exercise of the freedom of navigation and all
other rights in the EEZ, it seems practically impossible for their
deployment to be justified under the Article 59 procedure, and likely
that they could only be deployed lawfully in the very exceptional
circumstances in which a justification could be found in the right of
self-defence under Article 51 of the UN Charter: even here, it is plain
that the legality would depend upon complete and detailed notification
of the areas where mines have been sown.
Naval manoeuvres and deployment of military devices are two
activities whose legality under the 1982 Convention is controversial. A
third area of difficulty and potential conflict concerns the action which
may be taken against warships which violate coastal state laws in the
EEZ. If a warship violates, and disregards requests to comply with,
coastal laws in the territorial sea, the coastal state may require it to leave
the territorial sea immediately (LOSC, Article 30). Refusal to leave
would, presumably, be a clear case of action by the warship prejudicial
to the peace, good order and security of the coastal state, thus putting it
outside the scope of innocent passage and hence entitling the coastal
state to take the ‘necessary steps’ to prevent its non-innocent passage
(LOSC, Article 25): in short, the coastal state could use such force as is
necessary to expel the warship. No such right to require warships
violating coastal state laws in the EEZ to leave the EEZ is given in the
1982 Convention. A refusal to comply with a request for compliance
does not remove their right to be in the zone, because their right flows
*‘Lot tit, Ref 24.
-00 cit. Ref 13. D 22 from the freedom of navigation (LOSC, Article 58) and does not
30L&z tit, Ref 2.6.’ depend upon the very much narrower right of innocent passage.
3’UNCLOS III Document C.2/L.42/Rev.11 Moreover, their sovereign immunity precludes their arrest. Coastal
1974. The proposal was sponsored by
Algeria and 36 other states. See UNCLOS states appear powerless to deal with deliberate and persistent violations
III, Official Records, Vol Ill, p 220. of their laws by foreign warships in their EEZ. However, some states

180 MARINE POLICY July 1986


320p cif, Ref 13, p 25.
33See, for example, L.T. Lee, ‘The Law of
the Sea Convention and third states’,
American Journal of International Law, Vol
77, 1983, p 541; H. Caminos and MR.
Molitor, ‘Progressive development of inter-
national law and the package deal’, ibid,
Vol 79, 1985, p 871.
34LJN Law of the Sea Bulletin, Vol 5, July
1985, p 14.
MARINE POLICY July 1986
Some legal problems arising from the use of the seas for mililary purposes
may well consider that the power to expel warships for non-compliance
is a reasonable extension of their power to legislate for the EEZ.
Indeed, although the 1982 Convention in no way authorizes it, some
states (including Bangladesh, Burma, Cambodia, Haiti, Pakistan, Sri
Lanka, Vietnam and the People’s Democratic Republic of Yemen) have
claimed jurisdiction over security in the EEZ:“* such claims would be of
greatly restricted utility if the coastal states concerned were to concede
that they have no right to take enforcement action of any kind against
foreign warships violating those laws. Action might, of course, in very
limited circumstances be justified under the right of self-defence. It
seems possible, therefore, that conflicts may arise in future over this
question of coastal state rights in respect of law-breaking warships in the
EEZ.
The 1982 Convention and non-parties
The previous section sought to identify some of the major areas where
uncertainties resulting from the drafting of the 1982 Law of the Sea
Convention might give rise to conflicts between states concerning
military activities. Conflicts may also arise from disagreement over the
extent to which rights and duties under the Convention are applicable
vis-ci-vis non-party states. 33 For example, Iran has stated formally that
rights concerning transit passage and the EEZ are ‘contractual’ and
available only to parties to the Convention.“4 Many other states, feeling
that they were persuaded to compromise on such questions as rights of
passage in return for compromises by western states on the seabed
mining issue, are likely to be reluctant to accord those conventional
rights to the western states, such as the USA and the UK, which have
decided not to become parties to the Convention. Having avoided the
obligations relating to seabed mining, and set up their own unilateral
‘interim’ regime for seabed mining, such states should not, it is widely
felt, expect to enjoy all the benefits which the Convention would have
brought them in return. Much has been written on the question of the
extent to which the Convention provisions now form part of customary
international law, and may therefore be relied upon by non-party states.
The arguments are complex, turning upon detailed analyses of state
practice and upon extremely difficult questions concerning the manner
in which the requirement for opinio juris as an element in the formation
of customary rules operates in circumstances where state practice is
‘conditional’, in the sense that states’ actions are decided upon in the
belief that practice in one field (eg navigation rights) will be accompa-
nied by concessions in the practice of other states in another field (eg
seabed mining), and where the conditions are not fulfilled. It would be
inappropriate to rehearse the arguments on this question here. Suffice it
to say that attempts by non-party states to rely upon supposed rights in
customary law corresponding to rights included in the UNCLOS 111
‘package deal’ could, in circumstances of political tension, be a further
source of conflict. Claims to rights of transit passage and archipelagic
sealanes passage are the most likely to prove controversial in practice.
Special circumstances: zones of peace and laws of war
The discussion so far has concerned the rules of international law
applicable in all maritime zones in peace time. Before concluding this
181
Some legal problems arising from the use of the seas for military purposes
35See, for example, UN General Assembly
Resolutions 34728 (xxx); 2832 (xxxvi).
?JN Law of the Sea Bulletin, Vol 6,
October 1985, p 24.
37Loc tit, Ref 9.
-Treaty for the Prohibition of Nuclear
Weapons in Latin America, 1967. UN
Treaty Series, Vol 634, p 281.
39House of Commons Debates, Vol 28,
Column 46, 19 July 1982.
40League of Nations Treaty Series, Vol94,
p 57.
182
paper, it is appropriate to refer to two bodies of rules of more limited
application. These are of two kinds: first, rules applicable only between
limited numbers of states; and second, rules applicable only in limited
circumstances.
The most notable rules in the first category are those contained in
agreements seeking to a greater or lesser extent to demilitarize certain
regions of the sea. The United Nations General Assembly has adopted
several resolutions declaring certain areas to be ‘nuclear-free zones’ or
‘zones of peace’.“5 The nature of these zones is apparent from the draft
South Pacific Nuclear Free Zone Treaty prepared in August 1985:36 the
parties renounce the possession and use of nuclear explosive devices,
and the stationing of them in their territories, including internal waters,
territorial seas and archipelagic waters. The treaty thus complements
the 1971 Treaty on the Prohibition of the Emplacement of Nuclear
Weapons and other Weapons of Mass Restriction on the Sea Bed,“’
which prohibits the stationing of such weapons on the seabed beyond 12
miles from the shore. The 1985 draft Treaty does not, and could not,
restrict the carriage of nuclear weapons by ships or submarines on the
high seas or EEZs (such carriage in the EEZ being an ‘internationally
lawful use of the sea’ related to the freedom of navigation, and so a right
enjoyed by all states in the EEZ, under LOSC, Article 58). As far as
other zones are concerned, it provides in draft Article 5(2):
Each party in the exercise of its sovereign rights remains free to decide for itself
whether to allow visits by foreign ships and aircraft to its ports and airfields,
transit of its airspace by foreign aircraft, and navigation by foreign ships in its
territorial sea or archipelagic waters in a manner not covered by the rights of
innocent passage, archipelagic sea lane passage, or transit passage of straits.
The Treaty of Tlatelolco, 1967,‘8 is rather more restrictive. Although it
applies only to areas under the jurisdiction of its parties, which are for
the most part Latin American states, and only to nuclear weapons, it
prohibits their testing, deployment and use both on the seabed and in
the superjacent waters. The UK has ratified Protocol I to the Tlatelolco
Treaty, and consequently undertaken not to deploy nuclear weapons in
the territorial seas of the Falkland Islands/Malvinas and dependencies;
and it has been asserted by the British government that this obligation
was complied with during the Anglo-Argentine conflict of 1982.39
Although the Treaty provides that if all the nuclear powers and all the
Latin American states become parties to it, its prohibitions would
extend to a much wider area of waters around the South American
coast, this is not likely to arise in practice. Such treaties as these, and the
1971 Sea Bed Treaty, are unlikely to give rise to legal disputes, because
they confine themselves within jurisdictional limits well recognized in
international law. They may, however, be the occasion of political
difficulties of the kind which arose from New Zealand’s decision to
exclude nuclear-powered and nuclear-armed ships from its ports.
Far more problematic are rules of the second kind - those applicable
in the limited circumstances of armed conflict. Formerly, one would
have spoken of the ‘laws of war’; but since the proscription of war and
the threat or use of force in the 1928 Paris Treaty4” (or Kellog-Briand
Pact, as it is sometimes known) and the 1945 UN Charter, it is widely
considered inappropriate to refer to the rules in this way. However,
though wars may be forbidden in law, they are waged in fact; and a
whole series of armed conflicts, from Vietnam to the Falklands/
Malvinas, from the Gulf War to the Cuban ‘Quarantine’, has seen the
MARINE POLICY July 1986

%ited conveniently in D.J. Harris, Cases
and Materials in International Law, Lon-
don, 1983, p 656.
%onveniently reprinted in A. Roberts and
R. Guelff, Documents on the Laws of War,
Oxford, 1982, pp 43-l 20.
43/hid, pp 169-338.
44‘The use of naval mines in the exercise
of self-defence’, US State Department, 13
April 1984, reprinted in Australian Interna-
tional Law News, 1984, p 371.
450p tit, Ref 42, p 85.
46The Times (London), 14 January 1986, p
“Professor G.I.A.D. Draper in a letter to
The Times, 23 January 1986. A British
Foreign Office spokesman, at a press
conference on 14 January 1986, speaking
in connection with the stopping and sear-
ching of the British container ship the
Barber Perseus by the Iranian Navy, rec-
ognized that in certain circumstances a
state engaged in an armed conflict could
stop and search a vessel on the high seas,
but said that international law on this point
was ‘something of a grey area’. The British
Government did not protest, but asked the
Iranian authorities for an explanation of
their reasons for stopping the ship.
MARINE POLICY July 1986
Some legal problems arising from the use of the seas for military purposes
necessity for the development of rules to regulate their conduct.
Typically, in an armed conflict, one state will claim a right to interfere
with the navigational rights of states not party to the conflict in a manner
that the latter find objectionable. Recent examples include the mining
of Nicaraguan waters by the USA and the visit and search of merchant
ships in the Gulf of Oman. The question of the detailed content of the
emerging rules of armed conflict is much too large to be addressed here.
No more than a sketch of the applicable principles can be attempted.
A common feature of post-Charter armed conflicts is the justification
of the use of force by reference to the right of self-defence under articles
of the Charter. The concept of self-defence has long been understood to
require that the minimum necessary force be used - ‘the act, justified by
the necessity of self-defence, must be limited by that necessity, and kept
clearly within it’, as it was put in the celebrated Caroline formula.41
From this, it follows naturally that force should only be used when, and
in the measure in which, it is necessary to defend a state against an
attack; and that the defensive action should be confined to the
aggressor, every precaution being taken to avoid injury to ‘neutral’
states and their property. These aims are, of course, precisely the aims
of the laws of war, and it is now widely argued that at least the broad
principles of those rules, contained in customary law and treaties such as
the Hague Conventions of 190742 and the Geneva Conventions of
1949,43 are applicable to any de facto war which might arise.
State practice supports this use of the ‘laws of war’ as principles
regulating the exercise of the right of self-defence under the UN
Charter. For instance, the USA has argued (with the mining of the
Nicaraguan ports in mind) that a state has a right of self-defence against
states providing covert assistance to insurgent forces, and that ‘the
proportionate use of naval mines can be a legitimate means of
interrupting a flow of arms destined for infiltration into the territory of
the victim’, adding that mines may not be used to close international
straits essential for third-country shipping or to close third-country ports
or to interrupt third-country shipping on the high seas not bound for the
attackers ports. 44 The statement also indicated that the USA regarded
the principles of the Hague Convention No VIII on Automatic
Submarine Contact Mines45 as being applicable as a constraint on
mine-laying. Of course, the legality of any such action turns ultimately
upon the legality of the use of force in self-defence: scrupulous
adherence to the laws of war will not turn an unlawful use of force into a
lawful exercise of the right of self-defence. But the point made here is
that there is considerable evidence, in state practice and in the writing of
jurists, to support the view that at least the principles - if not the
detailed rules - of the laws of war remain applicable.
A second example arose recently in the Gulf War, when the Iranian
Navy stopped and searched neutral vessels in the Gulf of Oman. Some
comments made at the time suggested disapproval of the action: for
instance, the British Foreign Secretary is reported to have said that ‘the
interest that we all have in the continued freedom of navigation in
international waters makes it a matter of concern to us a11’.46 However,
it was subsequently forcefully argued that the Iranians were doing no
more than exercising the traditional right of visitation as a belligerent
against neutral ships on the high seas, with strict regard for international
law.47 It seems unlikely that states will not accept the application of the
laws of war in armed conflicts at sea in future.
183
Some legal problems arising from the use of the seas for military purposes

If the principles of the applicable laws are tolerably clear, their

48The texts of the Proclamation are re-
printed in the British Yearbook of lnferna-
tional Law, 1982, at pp 539 (Maritime
Exclusion Zone, 12 April 1982); 542 (Total
Exclusion Zone, 30 April 1982); and 556
(Falkland Islands Protection Zone, 22 July
1982). The two former zones were circles
of a 200-mile radius measured from a point
in the centre of the Falkland Islands; the
latter, a 150-mile zone measured from the
same point. See further R.P. Barston and
P.W. Birnie, ‘The Falkland lslandsllslas
Malvinas conflict: a question of zones’,
Marine Policy, Vol 7, 1983, No 1, pp
14-24.
49/3ritish Yearbook of International Law,
1982, pp 546-547. the British govern-
ment’s claim that the Genera/ Belgrano in
fact presented a threat to the British Naval
Task Force, and that its sinking was
therefore a justifiable use of force in
self-defence, has given rise to enormous
and continuing controversy in the UK. The
controversy is, however, limited to the
facts: the right to use self-defence in
appropriate circumstances is not con-
troversial.
“‘See Barston and Birnie, op cif, Fief 48, p
24.
“See the Duizar case, Revue g&kale de
droit international public, Vol 70, 1966, p
1056.
application is often difficult. The concept of self-defence as originally
developed presupposed an identifiable attack against which defensive
action could be taken. The Falklands/Malvinas war showed only too
well that with modern weaponry, such as Exocet missiles, if action is
delayed until an attack has actually been launched, the target of the
attack is unlikely to survive. In these circumstances, if the right of
self-defence is to have any value it must allow anticipatory action.
Equally there must be some constraints upon anticipatory action,
limiting it to what is necessary to provide adequate defence against
likely attacks. The declaration of 200-mile ‘exclusion zones’ around the
Falkland Islands/Malvinas by the UK served this purpose.48 While in no
way detracting from the right of the UK to take action in self-defence
anywhere on the seas (and it was said to be in pursuit of this genera1
right of self-defence that the General Belgrano was sunk outside the
exclusion zone), 4y the exclusion zones fulfilled an important practical
need. They deemed ships within the zone without permission to be
hostile, so that any Argentine warship could be attacked in self-defence
without waiting for it to launch a missile attack on a British ship. Putting
to one side the rights and wrongs of the Falklands/Malvinas conflict
itself, the ‘exclusion zone’ concept, since adopted in the Gulf War, was
clearly valuable and reasonable. Neither side could be expected to await
an actual attack before taking defensive action against the other’s
warships, but some limits had to be set to this ‘fire on sight’ strategy.
The exclusion zone was a prudent compromise, and an excellent
example of the way in which states, claiming to act under Article 51 of
the UN Charter, are developing the principles of the old laws of war to
accommodate the practical demands of modern warfare.‘”
Unlike the uncertain provisions of the 1982 Law of the Sea
Convention, the laws of armed conflict are unlikely to become an
independent source of international dispute. This is partly because the
rules only came into play in the most extreme circumstances, where
legal issues are commonly subordinated to political considerations in the
minds of belligerents and neutrals alike, and partly because the major
principles are generally accepted. Disputes will arise - as, for example,
when the French visited and searched neutral ships at great distances
from the Algerian coast in 1956, precipitating a storm of protests1 -
where states claim rights which appear to be unreasonable. But it is
likely that for most states such disputes will be less significant than the
difficulties, referred to above, arising from the day-to-day operation of
the 1982 Convention.

184 MARINE POLICY July 1986