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The disappearing right to navigational freedom in the exclusive economic zone
Jon M. Van Dyke,
William S. Richardson School of Law, University of Hawaii at Manoa, 2515 Dole Street, Honolulu, Hawaii 96822, USA
Available online 6 November 2004.
Jon M. Van Dyke,
Navigational freedoms have been a central part of the law of the sea for hundreds of years, but significant restrictions have been imposed recently upon these freedoms. Fishing vessels are subject to the most restraints and, to protect their fish catch, must now give notice whenever they travel through the exclusive economic zone (EEZ) of another country. Oil tankers, especially those with single hulls are also subject to a variety of restraints, and any ship with a dangerous cargo must conform to international, regional, and national regulations. Ships carrying ultrahazardous nuclear cargoes have been told by many countries to avoid their EEZs, and these ships have in fact picked routes designed to avoid most EEZs. Security concerns have increased dramatically during the past 2 years, and it has become almost commonplace for the major maritime and military powers to assert the right to stop and board merchant vessels to look for suspect cargoes in all parts of the oceans. Even military vessels, which have immunity from seizure, must nonetheless respect the many rules that have been established to protect the marine environment and the security of coastal populations. A new norm of customary international law appears to have emerged that allows coastal states to regulate navigation through their EEZ based on the nature of the ship and its cargo.
It appears that it is no longer accurate to say that the freedom of navigation exists in the exclusive economic zone of other countries to the same extent that it exists on the high seas. The balance between navigation and other national interests continues to develop, and navigational freedoms appear to be disappearing during this evolutionary process.
Keywords: EEZ; Freedom of navigation; Disappearing right
The previous Bali and Tokyo Rounds of the dialogue on the Regime of the exclusive economic zone (EEZ)1 have focused on the negotiating history at the Third United Nations Conference on the Law of the Sea which produced this new category of extended coastal state jurisdiction2 and on examples of state practice involving military activities in the EEZ which have occurred in the decades since the EEZ has become a recognized principle of customary international law3 and treaty law. The discussions and papers produced during these previous rounds have been useful in providing focus on the ambiguities and competing perspectives regarding permissible military activities by states in the EEZs of other states. But they have also shown that it is unrealistic to look at the question of military activities in the EEZ in isolation, because military activities are inevitably the result of a larger claim of a country to exercise individual or collective self-defense. In addition, and increasingly, coastal state restrictions on navigation are related to larger environmentally related claims to protect coastal resources and security-related claims to protect coastal populations. This paper addresses these larger contexts and examines the current status of navigational freedoms in the exclusive economic zone, with particular focus on security concerns that have had the effect of limiting the free movement of ships.
Our vision of the ocean is still dominated by the description given to us by the Dutch diplomat and scholar Grotius (Hugo de Groot) who explained that the oceans should not be subject to national ownership because, by their inherent nature, they are a common resource.4 One ship can cross the ocean, he explained, and such passage does not interfere with the ability of another ship to do the same thing. One fishing boat can cast its net into the sea and its catch will not affect the efforts of the next group of fishers who want to fish in the same area. Today, however, we know that this vision is no longer accurate with regard to fishing, because with modern technology and overcapitalization of the fleets, the first group of fishers can indeed take a major portion of the fish in a region and seriously interfere with the ability of others to find any remaining fish. Similarly, navigational activities can also now interfere with the efforts of others to utilize the sea area, because of the pollution and security threats that may be caused by the navigational activities. The countries of the world have been searching to find a proper balance among these competing activities. The formulations found in the Law of the Sea Convention are now the starting point in understanding this balance, but recent state practice must also be examined to determine the current state of the law.
Article 58 of the Law of the Sea Convention says that “all States” enjoy high seas freedoms of navigation and overflight in the EEZs of other states, but also says that these freedoms should be exercised with “due regard” to the right of the coastal state to exploit the resources of the EEZ and the responsibilities of the coastal state to protect the marine environment, which are spelled out in Article 56.5 The patchwork of provisions in the Law of the Sea Convention relating to the EEZ reveals the competing priorities.6 Rights of navigation are qualified “subject to the relevant provisions of this Convention”7 and maritime states are directed to “have due regard to the rights and duties of the coastal State” and to “comply with the laws and regulations adopted by the coastal State in accordance with the provisions of this Convention and other rules of international law in so far as they are not incompatible with this Part.”8 Coastal states have been active in exploiting these resources and seeking to reduce pollution9 and they have been placing limitations upon navigational rights when necessary to protect their resources and the marine environment.10
Article 73(1) of the Law of the Sea Convention allows coastal countries to stop and search any fishing vessel that it suspects has been violating its laws governing resource exploitation in its EEZ:
The coastal State may, in the exercise of its sovereign rights to explore, exploit, conserve and manage the living resources in the exclusive economic zone, take such measures, including boarding, inspection, arrest and judicial proceedings, as may be necessary to ensure compliance with the laws and regulations adopted by it in conformity with this Convention.
This provision appears to allow the coastal state to expect every foreign fishing vessel to identify itself and explain its intentions whenever it enters an EEZ, even if the fishing vessel is only transiting through the area on its way to distant fishing grounds.
This conclusion appears to follow from the decision of the International Tribunal for the Law of the Sea in the The Monte Confurco Case (Seychelles v. France),11 which involved a long-line fishing vessel flying the Seychelles flag boarded by France in the EEZ around the French-claimed Antarctic island of Kerguelen.12 The vessel had no fresh fish on board, but the French found 158 tons of Patagonian toothfish in the cargo hold frozen to a very low temperature (worth about $1.3 million) and longlines and defrosted baitfish in the waters around the ship, which had apparently been jettisoned into the sea.
The Seychelles asserted that the Monte Confurco had been fishing outside the Kerguelen EEZ for months, and was sailing through the Kerguelen EEZ to get to Williams Bank (in international waters) to continue fishing. The Seychelles argued that the ship had failed to notify the French of its passage through the waters around Kerguelen because its fax machine was broken. France pointed out that the satellite telephone on the ship was working, challenged the claimed route of the vessel, and submitted an expert who claimed that the vessel could not have caught the toothfish at the location marked on the ship's log. The Seychelles responded that the ship's crew had learned new techniques from Spain which enabled them to catch the toothfish at greater depths.
The Tribunal ruled against the Seychelles based on the testimony that the toothfish probably could not have been captured at the location identified on the ship's log and on the failure of the vessel to notify France of its passage and its intentions.13 In other words, a fishing vessel found in an EEZ of another country without permission and with fish in its hold will be presumed to have caught the fish in that EEZ. Apparently the only way for a fishing vessel that is genuinely transiting through an EEZ to protect its cargo and itself from seizure is to provide notification to the coastal state prior to such passage.
Perhaps the most potent provision in favor of coastal state authority is Article 220 (3)–(6) of the Law of the Sea Convention, which authorizes coastal states to obtain the identification of and to conduct a search of commercial cargo vessels in its EEZ that are suspected of violating the pollution regulations of the coastal state. Under Article 220 (3),(6), if “clear grounds” for believing that a vessel is violating international pollution standards, a coastal state may:
• demand information,
• physically inspect (if a “substantial discharge” causes or threatens “significant pollution of the marine environment), and
• detain the vessel (if the discharge causes or threatens damage to the coastline or resources).
This right of visit, inspection, and detention gives the coastal state a right to take action in some circumstances, but state practice appears to have expanded this right dramatically during the past year after the disastrous breakup of the oil tanker Prestige off the coast of Spain in November 2002. Spain refused to permit the crippled tanker to come into a Spanish port for “safe haven,” and then when the vessel was towed out into the open ocean it broke apart and the spillage of its cargo increased dramatically. After huge amounts of oil washed up along the beautiful and resource-rich coasts of Spain, Portugal, and France, France and Spain issued a decree that said:
A. All oil tankers traveling through these two countries’ EEZs will have to provide advance notice to the coastal countries about their cargo, destination, flag, and operators.
B. All single-hulled tankers more than 15 years old traveling through the EEZs of Spain and France will be subject to spot inspections by coastal maritime authorities while in the adjacent EEZs and will be expelled from the EEZs if they are determined, after inspection, to be not seaworthy.14
Shortly after the Spanish-French decree, Portugal announced that it would also take the same position on this issue.15 And then Morocco announced that single hull oil tankers more than 15 years old carrying heavy fuel, tar, asphaltic bitumen or heavy crude oil would be subject to requirement that they provide prior notification and adhere to strict safety regulations.16
Also in the spring of 2003, the European Union banned large single-hulled tankers carrying heavy grade oil from coming into any European ports,17 and on April 3, 2003, the French National Assembly unanimously adopted a new law asserting the right to intercept ships out to a distance 90 miles from its Mediterranean coast that release polluting ballast waters and also imposing stricter controls on transient oil tankers.18 Captains of vessels violating these new French rules can be sentenced to up to 4 years in prison and fined up to $600,000.19 About this same time, Spain, France, and Portugal were joined by Belgium and the United Kingdom in submitting a petition to the International Maritime Organization (IMO) to declare virtually their entire EEZs to be “particularly sensitive sea areas” that would be completely off-limits for single-hulled oil tankers and other cargo vessels transporting dangerous cargoes.20 Although the IMO has not yet approved this initiative, this effort by five maritime countries to protect their own coastal resources provides strong support for their view that it is legitimate to restrict maritime freedom in order to protect the resources of the EEZ.
Other examples of restrictions on navigational freedom in order to protect environmental resources include the US proposal, which was approved by the IMO in December 1998, to establish a mandatory ship reporting system off the northeast and southeast coasts of the United States in order to protect the northern right whale from being hit by ships.21 This whale species was hunted almost to extinction because of its oil, and is now thought to be the rarest whale species in the world.22 This new mandatory ship reporting area joins nine others that have been established by IMO to protect fragile environmental areas. In May 1996, the IMO approved a reporting regime for the Torres Strait region between Australia and Papua New Guinea and the inner route of Australia's Great Barrier Reef as well as the area adjacent to France's Ushant islet.23 Six months later, the IMO gave this status to Denmark's Great Belt Traffic Area, the Strait of Gibraltar, and the area off of Finisterre on the Spanish coast.24 On May 29, 1998, the IMO similarly required that notice be provided by ships passing through the Strait of Bonifacio between Corsica (France) and Sardinia (Italy) and also through the Straits of Malacca and Singapore.25 And on December 3, 1998, the IMO imposed this requirement on ships passing through the Strait of Dover/Pas de Calais as well as those going through the northeastern and southeast United States, as described above, to protect the remaining right whales.26
The US Department of Defense vigorously opposed the designation of the US eastern coastal areas of the United States as mandatory ship reporting areas, because it “was concerned that although public ships—notably warships—were exempt under the NOAA proposal, to require civilian vessels to report would make it possible to determine (by elimination) which ships were military” and thereby “would erode navigational freedoms globally and endanger American lives.”27 The US Coast Guard, however, supported this initiative, because of its mandate to enforce US environmental laws, even though it recognized that this move might require the US to support similar initiatives by other countries and might lead to the perception that “international law increasingly recognizes environmental protection as a justifiable reason to curtail freedom of navigation.”28
Ratifying countries have lodged competing declarations to the Law of the Sea Convention under Article 310 on the issue of ultrahazardous nuclear transports. One group of mainly nonnuclear states consider that Articles 22 and 23 of the Convention presume the existence of international conventions regulating such transport and that, until such treaties are developed, coastal states can require prior notification or even prior authorization for such shipments.30
Another group of mainly nuclear states emphasize the right of free navigation and dispute the obligations of prior consent or even notification.31 Some of these declarations confuse the issues of prior notification and prior informed consent. A regime of “prior notification” requires the shipper to provide notification that it will be passing through the zone, but does not require approval of the passage. A regime of “prior informed consent” would require notification followed by formal approval by the coastal state of the passage. An argument can be made that a prior notification and consultation requirement would be justified in situations where the potential consequences of an accident to the coastal environment would be grave. A “consent” requirement would obviously be more burdensome on the shipper.
Numerous states have declared that the shipments of ultrahazardous nuclear cargoes should not transit through their EEZs. In 1992, for instance, South Africa, and Portugal explicitly requested that Japan's shipment stay out of their EEZs,32 and in response to an inquiry from Australia, Japan stated that “in principle” the ship would stay outside the 200-nautical-mile zone of all nations.33 In 1995, Brazil, Argentina, Chile, South Africa, Nauru, and Kiribati all expressly banned the British nuclear cargo ship Pacific Pintail from their EEZs and Chile sent its ships and aircraft to force the ship out of its EEZ.34 In 1999, New Zealand issued a strong statement protesting these shipments and stating that they should not be permitted through New Zealand's EEZ because of the “precautionary principle’ enshrined in the Rio Declaration.”35
In October 2002, Chile modified its “Law for Nuclear Safety” to require prior authorization for any transport of “nuclear substances” and “radioactive materials” through Chile's exclusive economic zone.36 Such authorization will be granted only if the transporter establishes that the shipment will “keep the environment free of contamination” and only after information has been provided regarding the date and route of the shipment, the “characteristics of the load,” and the “safety and contingency measures” that are being utilized.37
In what may be seen as a defining moment in the tension between navigational freedom and the right of coastal states to restrict the movement of ships through their exclusive economic zones based on the nature of the ships and their cargoes, the United States announced on February 3, 2004 that it was abandoning its plan to ship a 770-ton decommissioned nuclear reactor from the San Onofre nuclear plant in Southern California around South America to South Carolina for burial.38 The plan, which had previously been approved by the US Department of Transportation (DOT) despite conflicting views within the US government,39 was to put the reactor on a barge for a 100-day journey around South America.40 This journey would have included the transiting of Drake's Passage at Cape Horn, the continent's southern tip, which is one of the world's most dangerous nautical passages, where gale force winds blow more than 200 days each year.41
Disposal of the San Onofre reactor faced opposition from myriad sources from the outset. Although logic would have favored burial in California, or Hanford, Washington, or even transporting the reactor across the United States by train, the DOT had rejected all these options because of US laws governing the disposal of nuclear wastes and because of liability concerns.42 The first international hurdle faced by the proposed shipment concerned Chile's “Law for Nuclear Safety,” which had been modified in October 2002 to require prior authorization by the Chilean government for any transport of “nuclear substances” or “radioactive materials” through Chile's exclusive economic zone (EEZ).43 The law explained that such authorization would be granted only if the transporter guaranteed that the shipment will “keep  the environment free of contamination” and only after information has been provided regarding the date and route of the shipment, the “characteristics of the load,” and the “safety and contingency measures” that will be utilized.44
The US State Department had originally instructed Southern California Edison, which operated the San Onofre plant, that it “should not apply for Chilean authorization for the passage because it was concerned that  doing so would set an unfavorable precedent for future shipments.”45 Subsequently, however, the DOT indicated that it thought consultations with Chile would be logical because of the potential risks and the advantages of having emergency contingency plans in place.46 The DOT also urged Southern California Edison to develop more realistic plans for salvage in the case of a sinking, as the original plans provided for salvage only in 300 feet of water or less, while the actual journey would be “entirely over the open ocean.”47
These concerns seemed to have resonated in the State Department, which 2 weeks later said that “a number of significant issues” needed to be resolved before the reactor could be shipped, and stated specifically that Southern California Edison should consider another route around South America, explain in detail its salvage contingency plans, and show that it possessed adequate liability insurance.48 Finally, however, the DOT did issue a permit for the shipment on December 1, 2003, based in part on Southern California Edison's assurances that “the ocean journey will be made in international shipping lanes hundreds of miles off the coasts of Central and South America.”49 It was never clear whether the vessel was going to try to bypass Chile's Nuclear Safety Law by avoiding passage through Chile's EEZ altogether by staying more than 200 nautical miles from the Chilean coast.
A second hurdle to the South American transport plan was presented by a January 2004 court decision in Argentina, which prohibited the passage of the reactor through Argentina's EEZ.50 This decision, issued by Argentine federal judge Jorge Pfleger, cited the Basel Convention on the Control of Trans-Boundary Movements of Hazardous Wastes and Their Disposal51 as authorizing coastal countries to block such shipments.52 After this decision, Argentine officials stated that if the shipment passed through Argentina's exclusive economic zone “the load will be intercepted by the military and escorted out of the nation's territorial waters.”53 This important decision set the stage for a significant international incident if the shipment had taken place and had transited within 200 nautical miles of Argentina's coast. The decision to abandon the effort to ship the San Onofre reactor by sea, and thus to leave it in place in Southern California, avoided the potential for international confrontations, and also reinforced the view that countries can act to protect their coastal populations and coastal resources by preventing passage of particularly dangerous cargoes and unseaworthy ships through their coastal waters.
The law of the sea and the laws of armed conflict have traditionally been kept apart in separate texts and treaties, with the understanding that the law of the sea governed in peacetime, but might not govern in the same way in times of war. But now that we seem to have entered a period of open-ended armed conflicts with no end in sight, it seems necessary to examine these two bodies of law together and to determine whether and how the law of the sea should be modified in times of military conflict. It is necessary, therefore, to dust off the treatises and treaties from the nineteenth and early twentieth centuries on neutrality, belligerency, blockades, and quarantines and to determine how they should be viewed and applied from our modern perspective.
Prior to the prohibition on the initiation of warfare which became formalized in the 1928 Kellogg–Briand Pact54 and in Article 2(4) of the United Nations Charter, diplomats and scholars sought to reduce the scourge of war by requiring attacking countries to issue formal declarations of war and protecting those not involved in the conflict through measures designed to separate “belligerents” from “neutrals.”55 These rules have been particularly important at sea, to allow commercial shipping to continue during times of war, and were specifically designed to protect the commercial ships of the “neutrals” from being attacked by the warships of the “belligerents.”
One of the first steps in this direction is documented in The Final Act of the Congress of Vienna (1815), signed by Austria, France, Great Britain, Portugal, Prussia, Russia, and Sweden, which formally ended the Napoleonic Wars. Among the norms that emerged from this Congress were the principle of free navigation (not only for the riparian states but for all states) on the major rivers of Europe (the Rhine, the Neckar, the Mayne, the Moselle, the Meuse, and the Scheldt), and recognition of the neutrality of Switzerland.56 Another important step occurred in 1817, when the United States and the United Kingdom agreed to limit their naval forces on the Great Lakes, leading to a demilitarization of the US–Canada border.57 Other demilitarized zones established during this era included those on the Aaland Islands in the Baltic Sea, established in 1856 by a treaty between Sweden, Finland, and Russia (which remains demilitarized at present);58 the southern shore of the Strait of Gibralter, demilitarized in 1904 by agreement between France and the United Kingdom reiterated in the Treaty of November 12, 1912 between France and Spain (and lasting until 1956 when the international status of this area ended);59 and Sakhalin Island and the Gulf of Tartary, which were demilitarized in the 1905 Treaty of Portsmouth after the defeat of Russia by Japan (remaining in effect for more than 30 years, probably because of the reciprocal nature of the treaty).
When the twentieth century began, the dramatic increase in destructive weaponry resulting from the industrial revolution caused many to realize that further constraints were needed on the use of force and efforts accelerated to try to outlaw the initiation of warfare. Major international meetings were called, the most significant being the 1899 and 1907 Hague Conferences, which were designed to codify the laws of armed conflict and establish limits on certain types of military activities. The Hague Peace Conferences of 1899 and 1907 were convened during “a high tide of idealism,”60 and they marked important efforts to articulate the laws of armed conflict and promote the peaceful settlement of disputes. The growth of daily newspapers in the industrialized countries had the effect of allowing common citizens to participate more fully in policy decisions, and led, in many countries, to a democraticization of international politics.
A consensus was thus reached during this period that noncombatants should be protected even during the most terrible of wars. Grotius had written eloquently on this topic in “his celebrated treatise, De Jure Belli ac Pacis” which was written when “the Thirty Years’ War was in the full tide of its destructive progress” marked by “[m]assacre, pillage and famine,” with “[n]either age nor sex” being spared.61 Grotius “protested” “against this brutal infatuation,” and gradually “[t]he distinction between combatants and non-combatants [became] the vital principle of the modern law of war.”62 Diplomat and Columbia University Law Professor John Bassett Moore attributed this recognition to a “moral revolt” resulting from “a loftier conception of the destiny and rights of man and of a more humane spirit,”63 but it also resulted from the mutual realization that destruction of noncombatants is not militarily advantageous to either side.64
These developments took shape with regard to naval warfare through the distinction drawn between “belligerents” and “neutrals.” The laws of “neutrality” emerged to contain the spread of hostilities and limit the impact of war on nonparticipants, particularly with regard to commerce.65 Neutral countries remained free to trade with each other, and also to trade with belligerents so long as they did not trade in “contraband,” which was defined as “those goods or materials, such as ammunition, that are directly related to warfighting, or that are war-sustaining, such as oil, electronic components, and industrial raw materials.”66 Obviously, however, a gray area exists and it is frequently difficult to determine whether certain goods will be used for military purposes, so that it is best for the belligerents to publish a specific list of prohibited goods. Today, if the UN Security Council has issued a “decision” pursuant to its powers under Chapter VII of the UN. Charter, such a “decision” is binding on all member states under Article 25 of the Charter and it would then appear to be impossible for any country to opt out of its obligations claiming the status of “neutrality.”67
Naval blockades whereby “the blockading state could legally prevent ships from all states reaching the blockaded port” appear to have been accepted generally as a legitimate military tactic,68 and during the US Civil War (1861–65) the North gained a significant military advantage by blockading the ports of the South. The US Supreme Court explained in 1862 that neutrals “have a right to enter the ports of a friendly nation for the purposes of trade and commerce, but are bound to recognize the rights of a belligerent engaged in actual war, to use this mode of coercion [a blockade], for the purpose of subduing the enemy.”69 The United States also imposed a blockade on the north coast of Cuba during the Spanish-American War in 1898.70
It is clear that a blockade, if unprovoked, constitutes an act of war and would be characterized as “aggression.” The U.N. Secretary General explained in 1985 that:
One example of prohibited activity—prohibited in the interest of maintaining international peace and security—is the blockade. In its definition of aggression, adopted without a vote in 1974 in resolution 3314 (XXIX) of 14 December 1974, the General Assembly, inter alia, specifies that, “the blockade of the ports or coasts of a State by the armed forces of another State” qualifies as an act of aggression (annex, art. 3(c)). Such a blockade is, in the absence of a Security Council decision to that effect, not even permitted as a form of reprisal against a State which has committed a crime against international law.71
Once a war is underway, however, the naval blockade—within defined limits—appears to be viewed as a legitimate military tactic by the major maritime and military powers.72 The US Navy's 1955 edition of Law of Naval Warfare described blockades barring all ships from entering enemy ports as a legitimate tactic of warfare,73 but also explained that a “blockade must not bar access to or departure from neutral ports or coasts.”74 This volume also explained that “during World Wars I and II, several of the major belligerents resorted to methods which, though frequently referred to as measures of blockade, could not easily be reconciled with the traditional rules governing blockade. In particular, the so-called “long distance” blockades of Germany by Great Britain departed in a number of respects from these traditional rules.”75 More recently, two US military scholars have explained that a blockade can be used to isolate “the enemy from the outside resources and support needed to maintain its war effort by preventing all vessels or aircraft from entering and departing specified ports and areas under enemy control,” but also that a blockade “cannot bar access to neutral territory or international straits.”76 The United States employed traditional blockades during the Korean War and enforced a blockade at Haiphong harbor during the Vietnam war using long-range missiles and mines.77
The United States took an initiative without direct precedent during the Cuban Missile Crisis in October 1962, when President John F. Kennedy established—with the authorization of the Organization of American States—a “defensive quarantine” whereby US military vessels asserted the right to search all ships entering Cuban ports and declared that “all ships of any kind bound for Cuba from whatever nation or port will, if found to contain cargoes of offensive weapons, be turned back.”78 The United States discovered that the Soviet Union had been moving intermediate-range ballistic missiles with nuclear warheads to Cuba and viewed the emplacement of these weapons so close to US territory as changing significantly the balance of military power.
After considering the options of invading Cuba or undertaking a surgical bomb strike targeting the missiles, President Kennedy decided instead to impose a “quarantine” around the island of Cuba, and to stop all vessels coming into Cuba to determine if they were carrying missiles, missile-parts, or nuclear materials in their cargoes. The United States was careful to explain that its naval action was a “quarantine” and not a “blockade”—and that it would let ships pass through to Cuban ports if they were found not to have offensive weapons. The United States was reluctant during this period to rely on “self-defense” as the basis for its action—because it did not want to give validity to the concept of “anticipatory self-defense,” which other countries might use to invade their neighbors—and so it argued that its quarantine was justified because “the Cuban situation threatened the peace and security of the US continent.” The Soviet Union decided not to challenge the US military action, and did subsequently remove its missiles from Cuban soil. Most commentators viewed the US action as a carefully calibrated and proportionate use of force that was appropriate for the situation,79 but one scholar wrote later that the “Soviet Union, whose ships were mostly concerned, could have considered this action an act of war under traditional international law had it chosen to do so.”80
Under the traditional laws of neutrality that emerged in the nineteenth century, belligerents were supposed to allow the ships and goods of third parties to pass unharmed, but as warfare became more intense, belligerents tended “to consider all goods contraband and to assume that the ultimate destination of most goods is the enemy.”81 They thus tended to try to stop all trade with the enemy and to use force against neutral ships when necessary. The protections for neutral shipping that had previously been established thus faded and “under the impact of modern methods of warfare, the rules protecting neutral shipping and goods had deteriorated to such a degree by the end of World War II that the existence of any rules protecting neutral interests outside the neutral state has become questionable.”82
This 1949 case gave the International Court of Justice an opportunity to clarify a number of issues and the Court's opinion continues to be of substantial importance. It is often cited for its pronouncements recognizing the nonsuspendable right of the commercial and military ships of all nations to innocent passage through straits, even through those straits that are not essential for international transportation.84 But equally important is the Court's conclusion that Albania was liable for the injuries suffered by British ships and sailors caused by the mines in the Corfu Channel, even though it was never clear that Albania had placed the mines in the Channel. The Court explained that Albania was liable for the damage even if it had not laid the mine fields because it was in a position to know what was happening in its waters and had a duty to notify other states that might be endangered by the activity. In its key language, the Court stated that international law obliges every state “not to allow knowingly its territory to be used for acts contrary to the rights of other States.”85
This case is particularly significant for the present discussion because the operators of the British vessels knew that dangers lurked in the Corfu Channel and may, according to some views, have been acting illegally when they entered those waters.86 The Court did not view the responsibility of Albania as in any way reduced because the UK ships may have been contributorily negligent in sailing through these waters. This decision thus seems to stand for the proposition that even countries involved in armed conflicts cannot deny the ships of other nations the right to innocent passage through their coastal straits, and must warn the other nations of known hazards, even those hazards that have been placed in the waters to deter hostile ships and thus to protect coastal populations.
Another more recent decision that confirmed the essential elements of the Corfu Channel decision is the International Court of Justice's 1986 Nicaragua opinion, which condemned the placement of mines in Nicaragua's harbors by the United States.87 Even Justice Stephen Schwebel, the US judge who dissented from virtually all other aspects of the Court's opinion, joined the conclusion that the United States had violated customary international law when it failed to make known the existence and location of the mines laid by it, because of the impact of such a failure on commercial maritime commerce.88 Taken together, the Corfu Channel and Nicaragua decision appear to stand for the proposition that shipping is to be protected and permitted even in times of armed conflict, and that security interests of a coastal state do not automatically prevail over maritime freedoms.
The rulings that emerged from the International Court of Justice in the Corfu Channel and Nicaragua cases may, however, have been undercut by a pattern of state practice, sometimes authorized by the United Nations, allowing commercial vessels to be stopped and searched for security reasons.
In 1965, the UN Security Council imposed economic sanctions against the white minority government in Southern Rhodesia and the following year it passed a second resolution prohibiting the sale of oil to Rhodesia and also authorizing the United Kingdom to “prevent, by the use of force if necessary, the arrival...of vessels reasonably believed to be carrying oil destined for Southern Rhodesia.”89 The United Kingdom responded to the 1966 resolution by taking action to block ships flying the flags of third states from delivering oil and other cargo to Southern Rhodesia.90
After the Argentine occupation of the Falkland/Malvinas Islands in 1982, the United Kingdom declared a 200-nautical-mile military exclusion zone, banned the ships of all nations from this zone, and threatened to sink any Argentine ship in the area.91 The “naval establishments of several countries” viewed this claim “as a bad mistake in terms of maritime jurisdiction,” because it “strengthened the trend by which a zone 200 miles from the shore is seen to have security as well as legal implications.”92 Argentina responded by establishing its own 200-nautical-mile exclusion zone. “The 1958 and 1982 Law of the Sea Conventions make no provision for any such zones, but the Falklands zones were generally respected.”93 Some scholars criticized both Argentina and the United Kingdom for “impermissibly” using their exclusion zones as “‘free-fire’ zones.”94 Several Argentine and British vessels were sunk during this period, as well as the Liberian-flag tanker Amerada Hess.95 In 1985, the UN Secretary-General suggested that “there is a need for further development of international law” with regard to such exclusion zones in times of war.96
After Iraq's invasion of Kuwait in 1990, an Arabian-Persian Gulf/Red Sea Military Intercept Operation was established, which continued in force through the second Gulf War in 2003.97 This operation began on August 12, 1990, to enforce Security Council Resolution 66198 which prohibited all imports and exports into Iraq and Kuwait except for medical supplies and certain foodstuffs. This military intercept operation inspected all cargo vessels in Gulf bound for or departing from Iraq through Iraqi ports and in the Red Sea for cargo entering Iraq through the port of Aqaba, Jordan. Although several states—Libya, Sudan, Yemen, Jordan, and, of course, Iraq—challenged the authority to engage in this action, the United States and the United Kingdom defended it as permitted collective self-defense under Article 51 of the UN Charter, particularly since Iraq had invaded Kuwait, and as a blockade permitted under “the traditional law of maritime warfare.”99 Because of the controversy surrounding this matter, the Security Council adopted Resolution 665100 on August 25, 1990 which authorized states “to use such measures commensurate to the circumstances as may be necessary under the authority of the Security Council to halt all inward and outward maritime shipping in order to inspect and verify their cargoes and destinations and to ensure strict implementation of the provisions related to such shipping laid down in Resolution 661.”
In the Gulf, the most common offending cargo was Iraqi-refined petroleum. In order to facilitate the inspection of container ships, and protect the safety of inspection teams, a container ship had to limit its cargo on deck to no more than three containers stacked on top of each other. Even with this limit, it is “practically impossible to inspect [container vessels] completely and safely at sea,” and so “coalition forces routinely diverted merchant vessels, particularly container vessels...into port for the purpose of searching them.”101 “To illustrate the scale of the maritime interception operation, over a 2-year period multinational forces intercepted over 17,800 vessels, boarding approximately 7,400 and diverting 410 of them.”102 As a matter of policy, the United States and other nations enforcing the UN sanctions decided to refrain from intercepting vessels traveling in Iran's territorial sea, perhaps because Iran had declared its “neutrality” during this conflict.103 In 1994, the Red Sea intercepts stopped, and the cargo bound for Iraq was inspected ashore at Aqaba.
Following the Security Council's resolutions prohibiting the importation from or export to the Federal Republic of Yugoslavia of any arms, products, or commodities, a maritime intercept operation was established in the Adriatic in 1991–93.104
To encourage the departure of the military dictatorship that had overthrown an elected government in 1991, the Security Council prohibited the importation of petroleum and arms into Haiti, and a military intercept operation was established to enforce this resolution in 1993 and 1994.105
On October 8, 1997, the Security Council adopted Resolution 1132, which authorized the Economic Community of West African States (ECOWAS) to enforce the embargo on importation of petroleum products and arms “by halting inward maritime shipping in order to inspect and verify their cargoes and destinations.”106
After September 11, 2001, the United States began boarding vessels in the Indian Ocean, the Red Sea, the Strait of Hormuz and elsewhere in search of Osama bin Laden and his Al Qaeda associates. Attempts have been made to undertake these boarding operations with the consent of the masters of the vessels, but “the US notification made to the maritime industry made it clear that vessels suspected of transporting or assisting bin Laden and senior Al Qaeda leadership would be subject to the use of force to compel a boarding.”107 Although the specific legal basis for these searches has never been articulated, US President George W. Bush has said more generally that US actions to respond to the attacks by Al Qaeda are “acts of self-defense.”108
Israel seized the Tongan-flagged vessel Karine-A in the Red Sea about 300 miles from the Israeli coast with a reported 50 tons of armaments apparently bound for Palestinian militants, which had apparently been loaded in Bandar Abbas, Iran. US Defense Secretary Donald Rumsfeld later characterized the Israeli action as “a legitimate act of self-defense, noting that the US had conducted similar maritime operations.”109
On December 9, 2002, a North Korean cargo vessel, the M/V So San, said to be registered variously in Cambodia or Singapore, was forcibly stopped in the Gulf of Aden 600 miles east of the Horn of Africa by two Spanish warships, who discovered 23 containers filled with 15 Scud missiles hidden beneath 40,000 sacks of cement.110 After some confusion and high-level negotiations involving US Vice President Richard Cheney and Secretary of State Colin Powell talking with Yemen President Ali Abdullah Salih, the United States “[a]cknowledg[ed] that the purchase of the missiles was not unlawful,”111 and the vessel was released to continue its voyage to Yemen.112
In the early 1990s, I wrote that: “The Corfu Channel case stands as a strong precedent that maritime navigational freedoms cannot be interfered with, even to serve the security concerns of other nations, and that compensation must be paid when injuries to persons and property occur.”113 Was this statement then an accurate reflection of the law, or does the Corfu Channel Case only protect passage in the special situation of coastal straits? If this statement once accurately described customary international law, has the law changed? Have the many recent military intercept operations and the apparent acquiescence of most countries toward these activities caused the law to change?
The course materials utilized by the US Defense Institute of International Legal Studies explains that one “legal theory” that can be offered to support the intercepts by Israel of the Karine A and by Spain of the So San is “self-defense under Article 51” of the UN Charter.114 These materials also acknowledge that: “However, there are scholars who would argue that this is a much too broad reading of Article 51, and these actions constitute an unlawful infringement of shipping in international waters.”115 But in their conclusion, these US teaching materials assert that the various maritime intercept operations that have taken place with the participation of numerous nations during the past decade without challenge “have helped create a measured expansion of international law” and that “coalition activities involving foreign flag commercial vessels are properly conducted, legally permissible, and take appropriate cognizance of comity between States.”116
In a speech delivered in Poland May 31, 2003, US President George W. Bush outlined the “Proliferation Security Initiative, whereby the United States is trying to mobilize “like-minded states” to prepare for and participate in naval intercept operations designed to inspect ships thought to be carrying nuclear materials to or from “rogue” states, notably North Korea and perhaps also Iran. The countries most actively supporting this US-initiative are Spain, France, the United Kingdom, Portugal, Australia, Germany, Italy, Japan, the Netherlands, and Poland.
The countries coordinating efforts met several times during 2003 and held a number of joint exercises to practice interdiction techniques. Related to these efforts were the seizure by Taiwan of 150 barrels of dual-use chemicals from a North Korean freighter when it stopped in Kaohsiung to refuel,117 the confiscation of 22-tons of ultra-strong dual-use aluminum tubing bound for North Korea on the French-flagged vessel Ville de Virgo when it was about to enter the Suez Canal on April 12, 2003,118 and Japan's searches of the cargoes of North Korean ferries when they are in Japanese ports.119
After numerous meetings, the concerned countries issued a “Statement of Interdiction Principles” in September 2003 including the following:
• Countries agree to inspect suspicious vessels flying their own flag and will consider allowing other countries to inspect suspicious vessels flying their flag.
• Countries agree to stop and search suspicious vessels in their internal waters, territorial seas, or contiguous zones.
• Countries agree to require suspicious vessels entering or leaving their ports, internal waters or territorial seas to be boarded and searched for such cargoes prior to entry.
Although the public statements have said that these endeavors would be undertaken in a manner that is consistent with international law, it is also clear that the United States and its allies are seeking the expand international law to permit more active interception when warranted. President Bush's National Security Advisor Condoleezza Rice explained recently that:
While all actions will be taken consistent with existing national and international legal authorities, we are also seeking ways to expand those authorities. And it is for this reason that the President proposed in his September address to the United Nations that the Security Council adopt a resolution calling on all states to criminalize proliferation activities, establish effective export controls, and ensure the safety and security of sensitive materials and technologies.120
Australia's Foreign Minister Alexander Downer also has expressed support for changing the law permitting free navigation on the high seas in order to stop North Korea's shipping of missiles, nuclear materials, and drugs to its allies or customers.121
This topic, which has been examined in detail elsewhere,122 remains controversial. Do maritime nations have unlimited authority to engage in all variety of military activities in the exclusive economic zones of other coastal states, or does the duty of “due regard” impose limits on such activities, particularly with regard to the launching of missiles and other weapons?
The issue regarding whether hydrographic surveying to aid navigational safety is “marine scientific research”123 continues to fester. In December 2002, China announced that it had enacted a new law explicitly requiring Chinese approval of all survey and mapping activities in China's EEZ, and stating that unapproved ocean survey activity will be subject to fines and confiscation of equipment and data.124
The April 2001 incident involving the US surveillance plane flying along China's coast that was forced to land in China's Hainan Island after it was hit by a Chinese fighter jet has been described extensively elsewhere.125 A somewhat similar incident occurred along the North Korean coast on March 2, 2003 when four North Korean fighter jets intercepted a US RC135S Cobra Ball reconnaissance aircraft and appeared to be trying to force it land in North Korea.126 The United States halted its surveillance for a few days, but news reports said they resumed on March 11, 2003.
Restrictions on navigation based on security concerns have proliferated during the past 2 years. In December 2002, for instance, the International Maritime Organization adopted an International Ship and Port Facility Security Code that will require 25,000 ships owned by 3500 companies to have a security officer on board and to develop security plans that will be reviewed and certified by a recognized security organization.127 All ships will have to have an identification number on their hulls and provide onboard records of their last 10 ports of call.128 In January 2003, fearing terrorist attacks, Canada prohibited vessels from coming within 500 m of its military ports at Halifax, Nova Scotia, and those at Esquimalt and Nanoose Bay in British Colombia.129
The Law of the Sea Convention treats military and commercial vessels without distinctions and thus says that both are entitled to exercise freedoms of navigation. This view remains somewhat controversial,130 however, and it is interesting to note that the United States once took the view that warships were not entitled to exercise the right of innocent passage. In the North Atlantic Coast Fisheries Arbitration, the US agent Elihu Root argued that warships did not have the right to pass through the territorial sea “without consent into this zone, because they threaten. Merchant ships may pass because they do not threaten.”131 Articles 31, 32, and 236 of the Law of the Sea Convention state that warships have immunity from coastal state jurisdiction, but also make it clear that the countries operating such warships are nonetheless liable for any environmental or other damage caused by the operations of the warship.132
The question of the Convention's applicability in times of military conflict remains unresolved. Does the Convention apply in its entirety? Does it apply, but with modifications as deemed necessary to accommodate the conflict? Do some provisions still apply, while others are in abeyance? What meaning would Articles 88 and 301 of the Law of the Sea Convention have if they can be swept aside when armed conflict erupts? The United States apparently accepted the right of Iran to search US-flag vessels on the high seas for contraband during the Iran–Iraq war,133 and the United States, in turn, declared a five-mile “moving bubble” identification zone around its warships in the Persian Gulf requiring aircraft and vessels to identify themselves before entering this bubble.134
Some commentators have written that the Law of the Sea Convention was designed “to regulate the uses of the seas in time of peace,”135 implying that it may not be applicable in times of war. Others have observed that the 1958 Convention on the High Seas was clear in applying only to peacetime situations, and that “[t]he same notion might apply to the 1982 Convention where the application during times of armed conflict is not clearly articulated.”136 Professor R.P. Anand explained at a previous meeting in Honolulu that “there is no doubt that the law of the sea, which has been codified for times of peace, is bound to be modified during armed conflicts. These rules have been modified during previous wars, particularly in light of the more fundamental rules such as the right of self-defense.”137 Two US military scholars wrote recently that the laws of armed conflict would apply in times of conflict, but that the law of neutrality “is, in great part, consistent with the law of the sea; the maritime rights and duties States enjoy in peacetime continue to exist, with minor exceptions, during armed conflict.”138
A report written to the U.N. Secretary-General in 1985 explained that:
In the exercise of the right of collective self-defense it is clear that parties to these security arrangements may use force upon the high seas, within the limits prescribed by international law, to protect their armed forces, public vessels or aircraft. As always in the case of legitimate self-defense, the use of force shall not exceed a proportional response to the armed attack, taking into account its nature and magnitude.139
This survey of recent state practices restricting navigational freedoms in the EEZ illustrates that ship masters must carefully limit their movements in many ways. Even military vessels which have immunity from seizure must nonetheless respect the many rules that have been established to protect the marine environment and the security of coastal populations.
Fishing vessels are subject to the most restraints and must now give notice whenever they travel through the EEZ of another country. Oil tankers, especially those with single hulls are now subject to a wide variety of restraints, and any ship with a dangerous cargo must conform to international, regional, and national regulations. Ships carrying ultrahazardous nuclear cargoes have been told by many countries to avoid their EEZs, and these ships have in fact picked routes designed to avoid most EEZs. A new norm of customary international law appears to have emerged that allows coastal states to regulate navigation through their EEZ based on the nature of the ship and its cargo.
The right to engage in military activities in the exclusive economic zones of other states was controversial during the negotiations that produced the Law of the Sea Convention, and this topic remains controversial today, with groups of countries asserting dramatically opposing views. Countries remain deeply divided on the legitimacy of launching of weapons, hydrographic surveying, and surveillance activities in the EEZs of other countries.
Security concerns have increased dramatically during the past 2 years, and it has become almost commonplace for the major maritime and military powers to assert the right to stop and board merchant vessels to look for suspect cargoes in all parts of the oceans. The relationship between the law of the sea and the laws of armed conflict has always been fuzzy, and the early efforts to define the laws of neutrality and blockades need to be dusted off, re-examined, and updated to deal with modern conditions.
What is clear is that it is no longer accurate to say that the freedom of
navigation exists in the exclusive economic zone of other countries to the same
extent that it exists on the high seas. Coastal states have acted to control
such navigation to protect their coastal living resources, to guard against
marine pollution, and to protect the security of coastal populations, and it can
be anticipated that such assertions of coastal state control will continue. In
many cases, these claims have been approved by the International Maritime
Organization and by other regional and global organizations. The balance between
navigation and other national interests continues to develop, and navigational
freedoms appear to be disappearing during this evolutionary process.
Volume 29, Issue 2 , March 2005, Pages 107-121
Military and Intelligence Gathering Activities in the Exclusive E conomic Zone: Consensus and Disagreement II
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