International Law Studies
Volume 84
International Law and Military Operations
Michael D. Carsten
Editor
Naval War College
Newport, Rhode Island
2008
INTERNATIONAL LAW STUDIES SERIES
PRESIDENT, NAVAL WAR COLLEGE
Rear Admiral Jacob L Shuford, USN
ACTING PROVOST and ASSOCIATE DEAN OF
ACADEMICS, NAVAL WAR COLLEGE
Professor William R. Spain
DEAN, CENTER FOR NAVAL WARFARE
STUDIES
Professor Robert Rubel
CHAIRMAN, INTERNATIONAL LAW
DEPARTMENT
Professor Dennis L. Mandsager
CHARLES H. STOCKTON CHAIR OF
INTERNATIONAL LAW
Professor Michael N. Schmitt
INTERNATIONAL LAW DEPARTMENT
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Lieutenant Colonel Michael L. Kramer, JA, USA
Major Michael D. Carsten, USMC
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International Law Studies
Volume 84
Library of Congress Cataloging-in-Publication Data
International law and military operations / Michael D. Carsten, editor,
p. cm. — (International law studies volume 84)
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ISBN 978-1-884733-55-0 (alk. paper)
1. Intervention (International law) — Congresses. 2. War (International law) —
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time (International law) — Congresses. 6. United Nations Convention on the Law
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Table of Contents
International Law and Military Operations
Foreword vii
Introduction ix
Preface xi
Part I: Law of the Sea and Maritime Security
I The Influence of Law on Sea Power Doctrines: The New Maritime
Strategy and the Future of the Global Legal Order
CraigH. Allen 3
II Conditions on Entry of Foreign-Flag Vessels into US Ports to
Promote Maritime Security
William D. Baumgartner and John T. Oliver 33
III Encroachment on Navigational Freedoms
Raul (Pete) Pedrozo 85
IV China and the Law of the Sea: An Update
GuifangXue 97
V The 1982 United Nations Convention on the Law of the Sea:
An Historical Perspective on Prospects for US Accession
Horace B. Robertson Jr. Ill
Part II: Luncheon Address
VI The Unvarnished Truth: The Debate on the Law of the Sea
Convention
William L. Schachte Jr. 129
Part III: Maritime Enforcement of UN Security Council Resolutions
VII Conflicts between United Nations Security Council Resolutions
and the 1982 United Nations Convention on the Law of the Sea,
and Their Possible Resolution
Robin R. Churchill 143
Part IV: Law of Armed Conflict
VIII Starting from Here
Ashley S. Deeks 161
IX Distinction and Loss of Civilian Protection in International
Armed Conflicts
Yoram Dinstein 183
X The Treatment of Detainees and the "Global War on Terror":
Selected Legal Issues
David Turns 199
Part V: Coalition Operations
XI Issues Arising from Coalition Operations: An Operational Lawyer's
Perspective
Neil Brown 225
XII Coalition Operations: A Compromise or an Accommodation
Vicki McConachie 235
XIII Coalition Operations: A Canadian Perspective
Kenneth W. Watkin 251
Part VI: 2006 Lebanon Conflict
XIV "Change Direction" 2006: Israeli Operations in Lebanon and the
International Law of Self- Defense
Michael N. Schmitt 265
Appendix — Contributors 305
Index 313
VI
Foreword
The International Law Studies "Blue Book" series was inaugurated by the Na-
val War College in 1901 as a forum for essays, treatises and articles that pro-
mote a broader understanding of international law. The eighty- fourth volume of
this historic series, International Law and Military Operations, is a compilation of
scholarly papers and remarks derived from the proceedings of a June 2007 confer-
ence hosted by the Naval War College.
The purpose of the conference was to address three areas of interest — law of the
sea and maritime security, the law of armed conflict and coalition operations, and
the 2006 Lebanon Conflict. Participants came to Newport from twenty-five coun-
tries and included government officials, military commanders, representatives of
non-governmental organizations, esteemed international law scholars, and military
and civilian lawyers. The conference was designed to encourage a constructive dia-
logue on these issues by examining US and international perspectives to ensure a
sensible development of the law, and to preserve both national and collective security
imperatives. Undoubtedly the ideas generated in this "Blue Book" volume will con-
tribute substantially to the ongoing examination of the major legal challenges ac-
companying maritime operations and armed conflict in the twenty- first century.
On behalf of the Secretary of the Navy, the Chief of Naval Operations and the
Commandant of the Marine Corps, I extend a warm thank-you to Major Michael D.
Carsten, US Marine Corps, under whose leadership this conference was organized,
and who served as the editor of this volume. I also wish to thank the authors for
their invaluable contributions to this work and for engendering a greater under-
standing of operational law in the maritime context and of the law of armed con-
flict generally. Thanks also to the Lieber Society of the American Society of
International Law, cosponsor of this conference. And, finally, a very special note of
gratitude goes to the Naval War College Foundation, Roger Williams School of
Law and Israel Yearbook on Human Rights, whose tremendous support made this
conference, and, particularly, this International Law Studies volume, possible.
JACOB L. SHUFORD
Rear Admiral, US Navy
President, Naval War College
Introduction
Since its founding in 1884, the US Naval War College has been committed to
the study and teaching of the law impacting military operations. As part of its
commitment, from June 20-22, 2007 the Naval War College hosted a conference
entitled International Law and Military Operations. Initiated in 1990, with a confer-
ence addressing the targeting of enemy merchant shipping, the international law
conference series brings together international scholars and practitioners, experts
in military operations and students to examine topical legal issues. Commencing
with that inaugural colloquium, the proceedings of and papers from each succeed-
ing conference have been published as a volume of the Naval War College's inter-
nationally acclaimed International Law Studies ("Blue Book") series. This "Blue
Book" continues that practice.
The conference speakers explored several diverse, yet timely, subjects relevant
to the planning and conduct of military operations. These include maritime strat-
egy and the global legal order, the law of the sea and maritime security, the law of
armed conflict, maritime enforcement of United Nations Security Council resolu-
tions, coalition operations, and the 2006 conflict in Lebanon. This volume of the
International Law Studies series is a compilation of remarks made during the con-
ference and of articles that expand upon the thoughts articulated during the
conference.
The conference was organized by Major Michael D. Carsten, US Marine Corps,
of the International Law Department, who also served as managing editor of this
volume. The conference was cosponsored by the Lieber Society on the Law of
Armed Conflict of the American Society of International Law, and was made possi-
ble through the support of the Naval War College Foundation, Roger Williams
University School of Law and the Israel Yearbook on Human Rights. Without the
dedicated efforts, support and assistance of these individuals and organizations the
conference would not have taken place.
I once again give thanks to Professor Emeritus Jack Grunawalt and Captain
Ralph Thomas, JAGC, US Navy (Ret.), who undertook the lion's share of the edit-
ing process. Indeed, this edition marks the sixth consecutive "Blue Book" on which
they have shared editing responsibilities. Without their tireless efforts and devo-
tion to the Naval War College and to the International Law Studies series, this pub-
lication would not have been possible.
Special thanks go to Rear Admiral Jacob Shuford, President of the Naval War
College, and Professor Barney Rubel, Dean of the Center for Naval Warfare
Studies, for their leadership and support in the planning and conduct of the con-
ference, and the publication of this volume.
The International Law Studies series is published by the Naval War College and
distributed worldwide to US and international military organizations, academic
institutions and libraries. This "Blue Book" and its predecessors evidence the Naval
War College's long-standing dedication to the scholarly discourse and understand-
ing of legal issues at the strategic, operational and tactical levels.
DENNIS L. MANDSAGER
Professor of Law & Chairman
International Law Department
Preface
Immediately following the conclusion of the conference, Commander Eric
Hurt, JAGC, US Naval Reserve, an officer assigned to the reserve unit support-
ing the International Law Department, expertly prepared a conference summary
which captures the highlights of the presentation of each of the conference speak-
ers. The remarks that follow are, with limited editing to conform to the "Blue
Book" style, that summary. My thanks are extended to Commander Hurt for this
outstanding work; it certainly eased my work as editor.
I also extend my thanks and appreciation to Susan Meyer of the Desktop Pub-
lishing Office here at the Naval War College. Ms. Meyer has been responsible for
preparation of the page proofs of eight volumes of the International Law Studies
series. The high quality of this volume is again testimony to her professionalism
and outstanding expertise. My thanks also go to Mr. Albert Fassbender and Ms.
Shannon Cole, two superb proofreaders, who are Ms. Meyer's colleagues in the
Desktop Publishing Office. The "final" article that left the International Law De-
partment was a far superior article when it returned from that office.
I encourage readers of this volume to first read the following summary. It will
whet your appetite for the individual articles prepared by the speakers and their in-
sightful analyses of many of the challenging international law issues facing military
forces today.
Keynote Address
In his address opening the conference, Professor Allen reflected that three decades
have elapsed since law of the sea scholar Daniel Patrick O'Connell challenged con-
ventional thinking with his book The Influence of Law on Sea Power. O'Connell
wrote that the law of the sea is the stimulus to sea power and that future naval op-
erations planning staffs must acquire an appreciation of the law. Professor Allen
used this groundbreaking book as the backdrop for a discussion of the develop-
ment of the new maritime strategy of the United States. During the summer of
2006, the Chief of Naval Operations tasked the Naval War College with developing
ideas that will guide the team charged with crafting the new maritime strategy. The
new strategy will be nested within the security strategies which emanate from the
National Security Strategy of the United States. This is not the first time the US
Navy has launched a grand strategy development project, but common to all of the
Preface
predecessor documents is a lack of express discussion of the role of law and legal in-
stitutions in naval operations.
This unanimous agreement on the need to reference international law arises
from the role of law as an ordering force. Order is necessary for successful trade,
transportation and the interaction of nations pursuing their national interests.
Professor Allen observed that the rule sets which bring about this order will not al-
ways be voluntarily complied with and that, for that, enforcement must be added.
This enforcement requires new ways of thinking. The historical "DIME" construct
of diplomatic, information, military and economic methods of engagement must
be supplemented by law enforcement, judicial and cultural measures. To achieve
these goals within a maritime strategy, Professor Allen advanced the idea that law,
as a proven promoter of order, security and prosperity, can be a powerful unifying
theme. Law provides the language and logic of cooperation. It is clear that respect
for international law and our recognition of such will allow the United States to
shape the global and legal orders as a good-faith participant in the system.
Panel I - Law of the Sea and Maritime Security
Rear Admiral Horace B. Robertson Jr., JAGC, US Navy (Ret.), Judge Advocate
General of the United States Navy from 1974 to 1976, opened the panel by provid-
ing a historical background for the US position on the 1982 United Nations Con-
vention on the Law of the Sea (1982 LOS Convention). The United States, as early
as 1966, under President Johnson proclaimed that the seas must not be the source
of a land grab. This position was reinforced by President Nixon's 1970 call for a sea-
bed treaty. In 1982, then-President Reagan announced the US opposition to the
1982 LOS Convention, citing the machinery of implementation. President Reagan
detailed his specific objections to the treaty. In the time since these objections were
registered, they have all been addressed. Despite these remedies, opposition to US
accession to the Convention persists.
Rear Admiral Robertson outlined the continuing objections to the 1982 LOS
Convention. These objections all appear to be ideological and lack substance. Chief
among the opposition's arguments is that a ratification of the Convention is a sur-
render of US sovereignty to the United Nations. This is not supported by the text of
the document or the machinery used to administer the Convention. Opponents
also claim that the United States need not ratify UNCLOS, as customary interna-
tional law provides all of the same benefits. While customary international law
does set forth a legal framework, it does not provide the precision of UNCLOS or
the institutions by which to seek resolution of disputes.
xn
Michael D. Carsten
The Staff Judge Advocate for United States Pacific Command, Captain Raul
(Pete) Pedrozo, JAGC, US Navy, observed that there are many challenges to free
navigation of the seas. These challenges include regimes adopted by the Interna-
tional Maritime Organization (IMO), such as establishment of mandatory ship re-
porting systems and particularly sensitive sea areas (PSSA). These IMO measures
have the practical effect of impeding freedom of navigation in designated portions
of the ocean. Captain Pedrozo indicated that the National Oceanic and Atmo-
spheric Administration (NOAA) has requested the designation of over 140,000
square miles of ocean surrounding the Northwest Hawaiian Islands as a PSSA.
Such a designation, in his view, is not necessary and will pose significant challenges
for the US Coast Guard and NOAA to enforcement of the mandatory ship report-
ing system that will encircle the PSSA. The proliferation of IMO-adopted measures
could also adversely impact the operations of the US Navy worldwide.
The Judge Advocate General for the United States Coast Guard, Rear Admiral
William Baumgartner, US Coast Guard, spoke on the increasing importance of
conditions on port entry as a tool for ensuring maritime security and the need for
an analytical structure to evaluate proposed entry conditions. Given the impor-
tance of port security, the Coast Guard has developed a comprehensive strategy to
combat maritime terrorism called Maritime Sentinel which takes a three-pronged
approach: 1) achieving maritime domain awareness, 2) undertaking effective mar-
itime security and response operations, and 3) creating and overseeing an effective
maritime security regime. Conditions on port entry, such as advanced notice of ar-
rival for commercial vessels arriving from abroad, are and will continue to be an
important part of executing this strategy.
Rear Admiral Baumgartner noted that additional conditions may be added in
the future and suggested that the following questions should be asked in evaluating
those conditions:
• Will the proposed condition be effective in addressing an issue of significant
importance?
• Is there a better, less expensive and less objectionable way to accomplish the
same policy goal?
• Will it be consistent with customary and conventional international law of
the sea, i.e., does it impinge on important navigational freedoms?
• Does it have a rational nexus in time, place and purpose to the actual entry
into port?
The goal of enhancing national security is most effectively met by stopping threats
before they reach our shores. Conditions on port entry are one of the most effective
tools in accomplishing this but they must be prudent and well considered. ,
xiii
Preface
Professor Guifang (Julia) Xue of Ocean University of China observed that
China is moving from being a State historically focused on coastal State interests to
becoming a maritime State. This move results from China's growth as a major
inrluencer of globalization. The importance of free navigation, as reflected in the
1982 LOS Convention, has caused a reevaluation of China's laws and policies. This
reevaluation takes the form of modifying Chinese domestic law to come into com-
pliance with the Convention and working to settle tensions between China and
various States, such as Taiwan, Japan and Vietnam.
Luncheon Address
Rear Admiral Schachte began by outlining how opponents of the 1982 LOS Con-
vention have dealt in misrepresentations to defeat its approval by the US Senate.
These misrepresentations center mainly on the argument that the Convention will
rob the United States of its sovereignty. In fact, there is nothing in the treaty which
takes away from the maritime power of the United States. Opponents also claim
the Convention will serve as a threat to US freedom of navigation on the high seas.
With over one hundred illegal claims against navigation, the 1982 LOS Convention
stands as the mechanism which will allow for greater freedom of navigation and the
resolution of impediments to movement.
The Convention provides a stable legal environment which improves the US
ability to succeed in the Global War on Terror. Despite claims to the contrary, the
Convention does not give the United Nations the authority to tax the United States
or to board US ships. Accession to the 1982 LOS Convention would give the
United States the ability to shape and influence world maritime policy and law.
With President Bush's endorsement of the Convention and a large number of sen-
ators indicating support, Rear Admiral Schachte expressed hope that the Senate
will soon provide its advice and consent, but stressed that party or non-party, a robust
freedom of navigation program must continue to be a part of US oceans policy.
Panel II - Law of Armed Conflict
Professor Yoram Dinstein, Professor Emeritus, Tel Aviv University, spoke on di-
rect participation of civilians in hostilities and targeted killings in the context of re-
cent decisions by the Supreme Court of Israel. The principle of distinction —
between civilians and combatants, as well as civilian objects and military objec-
tives— is the most basic principle of the international law of armed conflict. Profes-
sor Dinstein noted that the definition of military objectives (grounded on nature,
location, purpose or use) is very open ended, since every civil object — including a
xiv
Michael D. Carsten
hospital or a church — is liable to be used by the enemy, thereby turning into a mili-
tary objective. Hence, the key element in practice is the requirement of proportion-
ality, meaning that — when a military objective is attacked — incidental injuries to
civilians and damage to civilian objects must not be excessive in relation to the an-
ticipated military advantage gained. Of course, what is considered excessive is of-
ten a subjective assessment made in the mind of the beholder, subject only to a test
of reasonableness.
On the subject of direct participation of civilians in hostilities, Professor Dinstein
observed that there is a virtual consensus that, at those times when the direct partici-
pation is occurring, the individual maybe targeted. But what is he in terms of clas-
sification? Professor Dinstein believes that the person has become a combatant,
and indeed (more often than not) an unlawful combatant. The International Com-
mittee of the Red Cross (ICRC), on the other hand, adheres to the view that he re-
mains a civilian (although agreeing that he may be attacked while directly
participating in hostilities). The difference of opinion has a practical consequence
only when the person is captured. Professor Dinstein takes the position that, as an
unlawful combatant, the person loses the general protection of the Geneva Con-
ventions and only benefits from some minimal standards of protection, whereas
the ICRC maintains that the general protection of civilian detainees under Geneva
Convention IV remains in effect.
Professor Dinstein also addressed the issue of human shields. When a civilian is
voluntarily attempting to shield a military objective from attack, he is directly par-
ticipating in hostilities. As for the involuntary use of civilians to shield military ob-
jectives, the act is unlawful and even (under the Rome Statute of the International
Criminal Court) a war crime. But what if involuntary human shields are used?
Does it mean that the principle of proportionality remains intact, so that the op-
posing belligerent may be barred from attacking the military objective? This is the
position taken by Additional Protocol I of 1977. Professor Dinstein disagrees. In
his opinion, under customary international law, the principle of proportionality
must be stretched in such an instance and applied with greater flexibility. If the
outcome is that a large number of civilians are killed, their blood is on the hands of
the belligerent party that abused them as human shields.
Doctor Nils Melzer, of the International Committee of the Red Cross, stressed
that in the current conflict against terrorism, there is no defined battlefield. This
leads to confusion in distinguishing between civilians and combatants. Civilians
enjoy protection under international law until such time as they participate in hos-
tilities. Unfortunately, there is no clarity on what it means to participate. An ICRC/
Asser Institute initiative on direct participation seeks to define the term "direct
participation" in the context of the concept of civilians, the nature of hostilities and
xv
Preface
the modalities of the suspension of hostilities. He defined direct participation in
hostilities as action taken by an individual which is designed to have an adverse ef-
fect on the military operations of a party.
Doctor Melzer indicated that the duration of this participation is also difficult to
quantify. Concrete steps toward the preparation of a hostile act, deployment to
commit the act, commission of the act and return from deployment are all consid-
ered by the ICRC to be part of the hostile act, and cause civilians to lose their pro-
tection under international law. Once these actions are complete, the civilians
regain their protected status and are not lawfully subject to attack. As with all com-
bat actions, proportionality must factor into the targeting decision involving the
civilian engaged in the commission of a hostile act. Ultimately, if there is any ques-
tion concerning the status of a civilian, the presumption must be that the individ-
ual is protected and not subject to lawful targeting.
Professor David Turns of the University of Liverpool detailed the recent House
of Lords decision in the case ofAl-Skeini. This case involved the deaths of one Iraqi
civilian while in British military custody, and five others during British military op-
erations on the streets of Basra. The House of Lords held that an inquiry should be
held into the death of a prisoner in custody in Iraq in certain extraordinary circum-
stances. Such an inquiry is appropriate when the person is within the jurisdiction
of the United Kingdom for purposes of British human rights law. This is a fact-
specific determination that centers upon whether the individual is in British cus-
tody. In this case, the death of the individual who was in British custody requires an
inquiry under the law. In situations where individuals are killed and not in British
custody, they are not within the jurisdiction of the United Kingdom for human
rights law purposes, and therefore there is no requirement for an inquiry. In effect,
when the British Army deploys to a foreign country, it takes with it British human
rights law which must be applied to those under its control and custody.
In closing, Professor Turns noted that the United Kingdom's legal view of the
British presence in Iraq is similar to the position taken with regard to the presence
of British forces in Northern Ireland during the "Troubles." In both cases, the Brit-
ish military was invited to aid the existing government and quell unrest; therefore
detainees are not prisoners of war under Geneva Convention III, because the con-
flict is not a war. Professor Turns concluded by arguing that no matter how the
Global War on Terror is classified, detainees should be treated either as prisoners of
war under Geneva Convention III or in accordance with Common Article 3 of the
four 1949 Geneva Conventions and be given the maximum benefit of such
treatment.
Ashley Deeks from the Legal Adviser's Office at the US Department of State ex-
plained that the United States has engaged in a detailed, ongoing analysis of the
xvi
Michael D. Carsten
rules pertaining to the treatment and classification of detainees. The rules and poli-
cies regarding detainees that the United States put in place in 2002 have evolved
considerably, due to input from all three branches of the US government. Under
the present regimes in Iraq, Afghanistan and Guantanamo Bay, the detention of in-
dividuals is the subject of constant and ongoing review. The United States has
taken concrete steps to ensure that detainees are treated appropriately and that
their statuses and ongoing detention are reviewed periodically.
Ms. Deeks noted that the situation in Afghanistan is complicated, given the
makeup of the coalition involved in operations. Different members of the coalition
have different domestic laws and policies concerning detainees. In addition, differ-
ent countries are signatories to different law of war and human rights treaties.
These factors, combined with the difficult-to- classify nature of the operation,
make detainee operations challenging. Despite these challenges, the United States
has achieved a sustainable detainee regime in Afghanistan.
Panel HI - New Developments in Maritime Enforcement
of UN Security Council Resolutions
Professor Alfred Soons, University of Utrecht, opened this panel by raising the ques-
tion of who may enforce UN Security Council resolutions (UNSCRs). In short, may
a non-flag State take action against a vessel outside the national waters of that State?
The answer depends on the nature of the Security Council resolution. These resolu-
tions cover many areas, including economic sanctions, counterterrorism, counter-
proliferation and peacekeeping. The interpretation of these resolutions can be
undertaken by Security Council-established sanctions committees, UN member
States, domestic courts and international tribunals. When interpreting these reso-
lutions it is important to note that the UNSCRs are not governed by the Vienna
Convention on the Law of Treaties because the resolutions are not treaties. The in-
terpretation must be driven by looking to customary international law and the
general principles of law on interpretation. Given the special nature of UNSCRs, it
is also helpful to look at the statements of Security Council members in passing the
resolution and the prior resolutions and practices of the Council.
Nevertheless, as UNSCRs often involve a potential for incursion into national
sovereignty, it is important to take a narrow approach to interpreting the resolu-
tion. This may lessen the possibility of an incursion upon sovereignty. If there is
significant doubt about the meaning or intent of a UNSCR and its application to
particular circumstances, the proper action to take would be to return to the Secu-
rity Council and ask for a determination as to whether a breach has occurred.
xvn
Preface
Professor Soons closed by stating that when action is taken in a State's territorial
waters, the UNSCR must state explicitly that force is allowed.
Professor Robin Churchill, University of Dundee, Scotland, focused on poten-
tial conflicts between UNSCRs and the 1982 LOS Convention. It is clear that
UNSCRs may routinely interfere with navigational rights reflected in the Conven-
tion. This interference may arise from activities occurring during the enforcement
of economic sanctions, prevention of trafficking in weapons of mass destruction
(WMD) technology and the prevention of terrorism. These conflicts take place
when the Security Council, through a resolution, places limits on what a State may
do upon the seas.
Professor Churchill then turned to the question of resolving conflicts between
Security Council resolutions and the 1982 LOS Convention. He observed that pur-
suant to Article 103 of the UN Charter, UNSCRs will always prevail over provisions
of that or any other international agreement. When conflicts do occur, Professor
Churchill argued that they may be resolved by one of the various dispute settle-
ment bodies, previously chosen by the parties to the dispute under Article 287 of
the LOS Convention. Of course, these decisions bind only the parties to the dispute
and the rulings have no precedential value. Finally, these dispute resolution bodies
may decide the dispute but they have no authority to declare that a UN Security
Council resolution is invalid.
University of Central Lancashire Professor Dr. Keyuan Zou observed that China
is taking domestic action to comply with international non-proliferation standards
and regimes. Force in support of these regimes should be as limited as possible and
should be used only when explicitly authorized. Professor Keyuan noted that the
1982 LOS Convention has no provision authorizing the use of force and therefore
principles of humanity must be used to resolve conflicts. If force is considered, it
must be as narrow a use as possible. In fact, before force may be authorized, it can
be argued that the UN Security Council resolution must specifically reference Arti-
cle 42 of the UN Charter. The use of force in a maritime matter is a law enforce-
ment action, the scope and nature of which must also be controlled by customary
international law, rules of engagement and an analysis as to proportionality and
necessity. These considerations are all secondary to the consideration of the sanc-
tity of human life and the need to preserve it.
Panel IV- Coalition Operations
Brigadier General Ken Watkin, the Judge Advocate General of Canadian Forces,
began by noting that the Global War on Terror is referred to in Canada as the Cam-
paign Against Terrorism. One of the challenges for nations involved in coalition
xvin
Michael D. Carsten
operations is reaching agreement as to the nature of the conflict. This includes the
question of whether you can have an international conflict against non-State ac-
tors. International law was designed with the idea that two State actors would be in-
volved in a conflict; however, the majority of contemporary conflicts are internal to
a State. At a minimum, there appears to be a consensus that Common Article 3 of
the 1949 Geneva Conventions would apply to conflicts such as Afghanistan. Addi-
tionally, other treaties will be applicable, but not all coalition partners are bound
by the same treaties. For example, Canada and many other nations are bound by
Additional Protocol I (AP I) to the 1949 Geneva Conventions, while the United
States is not a party to that treaty. Although AP I does not apply as a matter of law to
most conflicts, it is integrated into the doctrine of Canadian Forces. This has not
presented any significant problems.
Unlike some nations, Canada recognizes the concept of "unlawful combatant."
In examining standards of treatment of unlawful combatants, it is important to
rely on both customary international and "black letter" law.
Different legal obligations and approaches sometimes cause friction within co-
alition operations. This can occur in the area of targeting; however, those perceived
differences may not be that great. Canada and the United States have slightly differ-
ent definitions as to what constitutes a military object. The Canadian definition
uses AP I wording and does not incorporate the "war sustaining capability" that
the United States brings within its definition. Generally, however, the difference is
potentially quite small since Canada, like many other AP I nations, is of the view
that in considering proportionality the military advantage to conducting an attack
must be considered as a whole and not be limited to individual attacks.
When disagreements arise within a coalition, they must be resolved or the ob-
jecting party will not be able to participate in the targeting mission. On other is-
sues, such as the anti-personnel mine Ottawa Convention, problems rarely arise.
This is due to the fact that even though most NATO members are signatories and
the United States is not, the nature of operations does not lend itself to consider-
ation of the use of the non-command-detonated anti-personnel mines governed
by that treaty.
Next, the Director General, Australian Defence Forces Legal Services, Commo-
dore Vicki McConachie, underscored the importance of close coordination among
coalition partners. This coordination results from the fact that coalition partners
may not all be signatories to the same treaties regarding international law and the
treatment of prisoners. In situations where the partners are signatories to the same
convention or treaty, they may still have different interpretations of their obliga-
tions. These differences must be quickly addressed. Accommodation of the various
partners' responsibilities under both international law and their own domestic
xix
Preface
laws is necessary to maintain a coalition. The nature of the current global conflict
has created a number of uncertainties. Before the attacks of 9/1 1, there was some
certainty as to which parts of Additional Protocol I to the 1949 Geneva Conven-
tions the United States did not accept. Post-9/1 1 there is less certainty on this issue,
calling for a greater need to coordinate on the proper application of the concepts
contained in Additional Protocol I.
Despite these uncertainties, Commodore McConachie feels the United States is
still able to reach accord on important issues such as targeting and the applicable
rules of engagement. In the event a specific operation violates a coalition partner's
legal obligations there must be an "opt out" provision. This provision allows coali-
tion partners to continue their participation in the overall coalition, while not par-
ticipating in operations which violate their legal obligations. These obligations can
be either international or domestic, as Australian forces are subject to all Australian
domestic law while deployed in support of coalition operations.
Captain Neil Brown, of the Royal Navy Legal Services, observed that for coali-
tions to work well there can be no barriers to communication, and that includes the
sharing of intelligence. The key approach of staff legal advisers in mission planning
is to identify, minimize and thereafter to manage different national legal positions.
In planning for the 2003 invasion of Iraq, and despite distinct national positions on
the jus ad bellum, this collaborative approach all but eliminated substantive differ-
ences between the United States and the United Kingdom on the application of in-
ternational humanitarian law (IHL). The United Kingdom certainly found during
the prosecution of the campaign that IHL was entirely appropriate for modern
conventional warfare. The fact that US and UK forces operated throughout under
their own national targeting directives and rules of engagement was not important.
Of much greater significance was the fact that they were applying, in almost every
respect, the same law. Some issues were more difficult to resolve, such as the
United Kingdom's treaty obligations in relation to anti-personnel landmines used
in the "victim-initiated mode," but in the context of the high-intensity warfighting
phase of Operation Iraqi Freedom (March-May 2003) none were insurmountable.
In relation to prisoners of war, internees and detainees, a common position on
Common Article 3 of the 1949 Geneva Conventions and Geneva Convention IV en-
sured maximum scope for a coalition approach to the prisoners of war, including
their transfer between coalition partners. Although different national approaches
were initially taken on the use of lethal force against escaping enemy prisoners of
war, a coalition position was agreed which required guards to take into account
whether the scale and character of any escape represented an imminent threat to
life. Coalition positions in 2003 were developed to reflect Common Article 3 of the
Geneva Conventions and Geneva Convention IV requirements, such as the
xx
Michael D. Carsten
expedited screening process in advance of Article 5 procedures to determine status.
The coalition position was more difficult to sustain when, although United Nations
Security Council resolutions maintained the "imperative reasons of security" pro-
vision of Article 78 of Geneva Convention IV to intern, some commanders pressed
for a wider approach based on the requirement to gather intelligence.
The Legal Counsel to the Chairman of the Joint Chiefs of Staff, Colonel Ronald
Reed, USAF, concluded the panel with an approach to coordinating coalition
operations. This coordination is designed to reduce the incidental friction that
arises between partners. Understanding that this friction is inevitable, he indicated
that as much pre- contingency planning as possible should take place. The planning
must ensure that operations are based upon defined international law. To the ex-
tent possible, rules of engagement should be developed that seek to reconcile part-
ner differences. Identifying pre-contingency coalition forces to react to and deal
with certain situations allows for a more efficient deployment of forces. The pre-
contingency planning is not a binding set of rules; rather, it is a framework or start-
ing point for dealing with the specifics of certain contingencies.
Once forces are deployed and the coalition is actively engaged, it is imperative
that, if multiple rules of engagement are in use, adjacent forces are briefed on and
made aware of what those contain. As the coalition begins operations, other inci-
dental friction will arise. This has occurred recently when a coalition partner's do-
mestic courts conducted investigations of battlefield incidents and then sought to
exercise jurisdiction over US soldiers. The United States opposed this, thereby cre-
ating incidental friction. While friction will always be present, all possible steps
must be taken to minimize it, since legal friction can adversely impact coalition
cohesion.
Panel V- Lebanon Conflict
Professor Michael Schmitt, who held the Stockton Chair of International Law at
the Naval War College during academic year 2007-08, began the panel with a re-
view of the historical events leading up to the 2006 Lebanon conflict. These events
included elections in which Hezbollah gained positions in the Lebanese govern-
ment; the capture of Israeli soldiers; and rocket attacks launched against northern
Israel. The actions of Hezbollah culminated with the Israeli government sending
military forces into southern Lebanon.
Professor Schmitt then began the evaluation of Israel's actions in the context of
international law. Israel announced that it was commencing attacks pursuant to a
right of self-defense against Hezbollah under Article 51 of the UN Charter. As a
precursor to the question of self-defense, it is important to determine the status of
xxi
Preface
the attacks against Israel. A UN inquiry into the growing conflict found that
Hezbollah was part of the government of Lebanon and should be treated as a mili-
tia under Article 4 of the Geneva Convention Relative to the Treatment of Prison-
ers of War. Lebanon disclaimed affiliation with Hezbollah and stated that
Hezbollah was acting independently of the State of Lebanon.
Professor Schmitt noted that the current state of international law on what con-
stitutes State action by a group is in flux. Under the Nicaragua decision of the Inter-
national Court of Justice (ICJ), for a group's actions to be attributed to a State, the
State must control and sponsor the group. This decision has been much criticized
and does not appear to be consistent with current world reality. Hezbollah was
present in the government of Lebanon; it at times had some support from govern-
ment organs and was in control of much of southern Lebanon. So, while the Leba-
nese government may not have officially sponsored or controlled Hezbollah, there
were significant ties between the State and Hezbollah.
Assuming that Hezbollah was not a State actor for purposes of the attacks on
Lebanon, it is clear from the Caroline case that non-State actors are capable of
armed attacks against States. In fact, 9/11 illustrated that non-State actors are capa-
ble of devastating attacks. This was recognized by the world community through its
support of the US attacks on the Taliban following 9/11.
Israel was justified in its attacks regardless of the classification of Hezbollah.
While there is some ICJ precedent suggesting Israel could not invoke Article 5 1 ab-
sent an attack by a State actor, this position is weak. Article 5 1 makes no mention of
State action as a prerequisite to self-defense and, as the UN Security Council reso-
lutions following 9/11 demonstrate, attacks triggering Article 51 need not be made
by a State actor.
Professor Dinstein indicated Israel's action could be classified as extraterritorial
law enforcement. Much like the facts of the Caroline case, Hezbollah was acting
from within Lebanon, Israel asked Lebanon to police its borders in order to pre-
vent Hezbollah's actions, and Lebanon either could not or would not stop
Hezbollah, the result being that Israel undertook the policing action itself. States
have an obligation to police their territory or risk having their sovereignty violated.
Evaluating Israel's self-defense in terms of necessity, immediacy and proportional-
ity shows that Israel's response was appropriate. Israel's action was necessary and
immediate, as it was under direct attack. Finally, as to proportionality, Israel's op-
erations were tied to defensive measures to protect itself from rocket attacks by
Hezbollah.
Sarah Leah Whitson of Human Rights Watch advised that Human Rights
Watch had sent teams of investigators to Lebanon both during and following the
conflict. These investigators conducted numerous interviews of members of the
xxn
Michael D. Carsten
local population, and of representatives of the Israel Defense Forces, Lebanese gov-
ernment, Hezbollah, humanitarian agencies, journalists, hospitals and local offi-
cials. The findings of this investigation will be set out in three pending reports
examining Israel's and Hezbollah's conduct. The investigation revealed very few
instances of Hezbollah using the local population as shields for its attacks on Israel.
In addition, very few of Hezbollah's rocket-launching sites and munitions and
arms storage facilities were in close proximity to civilian objects. Thus, there were
few Hezbollah actions which resulted in civilian deaths.
Colonel Pnina Sharvit-Baruh, Head, International Law Department, Israel De-
fense Forces, outlined the Lebanon conflict from the Israeli perspective. It was clear
from intelligence obtained that Hezbollah was making every effort to blend in with
the civilian population. This blending ignored the distinction between civilians
and combatants, and resulted in Hezbollah's shielding its military activities with
civilians. Israel went to great lengths to limit civilian casualties. Targeting decisions
were made so as to always attempt to leave one road open for civilian evacuation.
Also, certain dual-use infrastructure was not targeted because it would have had a
disproportionate impact upon the civilian population.
Colonel Sharvit-Baruh noted that there were civilian casualties. These casualties
were not excessive given the expected military benefit of most of the targets. Tar-
geting was taken very seriously and decisions were made based upon a proportion-
ality review. These decisions were difficult given the nature of the asymmetrical
warfare involved while fighting a non-State actor that does not comply with the law
of armed conflict.
Conclusion
In closing, it is our sincere desire that the works of the preeminent practitioners,
scholars and leaders who contributed so graciously to this volume assist those seek-
ing answers to today's hard questions and propagate thoughts and action that
shape the course of the future.
xxin
PARTI
LAW OF THE SEA AND MARITIME SECURITY
I
The Influence of Law on Sea Power Doctrines:
The New Maritime Strategy and the Future of
the Global Legal Order
Craig H. Allen*
For much of the 2006-07 academic year, elements of the US Naval War Col-
lege facilitated an elaborate process designed to provide the intellectual foun-
dations for the Chief of Naval Operations (CNO) and his staff to draw upon in
drafting a new maritime strategy.1 The process brought together experts from
throughout the world to take part in workshops, strategic foundation "war" games,
conferences and listening sessions.2 It was my privilege as the Charles H. Stockton
Chair of International Law to serve as legal advisor throughout the process. This
article summarizes the contributions of the Naval War College International Law
Department (ILD) in the process to develop and define the relationship between
maritime strategy and law, particularly international law, and provides the au-
thor's thoughts on what course that strategy should take.
Three decades have now elapsed since Daniel Patrick O'Connell challenged our
thinking with his book The Influence of Law on Sea Power.3 In it, the New Zealand
law of the sea expert and Chichele Professor of Public International Law argued,
shortly before his death in 1979, that because the law of the sea "has become the
stimulus to sea power, not its restraint,"4 future naval operations planning staffs
* Charles H. Stockton Professor of International Law, US Naval War College.
The Influence of Law on Sea Power Doctrines
must acquire a thorough appreciation of the law.5 In contrast to Admiral Alfred
Thayer Mahan and the more recent naval historians who, while providing illumi-
nating analyses of the influence of sea power on history,6 mostly disregard the in-
fluence of international law on sea power, Professor O'Connell forcefully argued
that sea power doctrines can no longer be considered in isolation from the relevant
law. More importantly, O'Connell recognized that international law can be a pow-
erful strategic enabler. The question I asked myself as I launched into my new task
last fall was, "Has the naval strategy community heeded Professor O'Connell's ad-
monition?" Let me attempt to answer that question by taking the reader on a brief
tour of our maritime strategy development process and the role of law and legal ad-
visors in that process.
The Maritime Strategy Project
At the June 2006 Current Strategy Forum, Admiral Mike Mullen, one year into his
tenure as CNO (and one year before his nomination as Chairman of the Joint
Chiefs of Staff), called for the development of a new maritime strategy to guide the
maritime services in the coming years.7 It is to be a strategy of this age and for this
age. The new strategy document, A Cooperative Strategy for 21st Century Seapower,8
developed under the overall leadership of Vice Admiral John Morgan, Deputy
Chief of Naval Operations for Plans and Strategy (N3/N5), joins several other naval
capstone planning documents, including Sea Power 21, 9 which, together with Ma-
rine Corps Strategy 21,10 provides the vision that establishes the strategic ends; the
Navy Strategic Plan, which lays out the ways and means to achieve the vision;11 the
CNO-CMC Naval Operations Concept, which addresses the operational principles
that will be used by the services;12 and the US Coast Guard Strategy for Maritime
Safety, Security, and Stewardship.13 At the June 12-13, 2007 Current Strategy Fo-
rum, the Commandants of the Marine Corps and the Coast Guard announced
their readiness to join the CNO in signing the new maritime strategy when it is
completed, making it a true strategy of all three sea services.14 In the summer of
2006, the CNO tasked the Naval War College to act as broker for an ordered com-
petition of maritime strategy ideas — ideas that would inform and guide the care-
fully selected team charged with drafting the new strategy. It was made clear from
the start that there were no preconceived ideas and that no suggestions were to be
off limits. The War College was also asked to facilitate a conversation with the
country — indeed with the world — to describe our process and solicit feedback.15
Craig H. Allen
Security Strategies in the United States
We were not asked to compose the new strategy on a blank canvas. Indeed, we
worked on one that was already suffused with an elaborate landscape. The new
maritime strategy will be nested in what has become a multifaceted web of security
strategies for the nation, all of which emanate from the National Security Strategy of
the United States.16 The National Security Act of 1947, as amended by the
Goldwater-Nichols Act of 1986, requires the President annually to submit to the
Congress a National Security Strategy (NSS) report.17 The President's NSS vision is
in turn implemented by the National Defense Strategy promulgated by the Secre-
tary of Defense and the National Military Strategy issued by the Chairman of the
Joint Chiefs of Staff.18 Closely related to those are the National Strategy for Mari-
time Security, the National Strategy for Homeland Security, the Maritime Strategy for
Homeland Security, the National Strategy for Combating Terrorism and the National
Strategy to Combat Weapons of Mass Destruction. Not surprisingly, many of the
strategy documents have classified versions.
I should add that this was not the first time the US Navy has launched a grand
strategy development project. Indeed, research by the Center for Naval Analyses in
the fall of 2007 identified at least seventeen Navy capstone planning documents
since the 1 970s. 19 It is noteworthy for this observer that none of the earlier Navy cap-
stone strategies, or Naval Doctrine Publication 1 on Naval Warfare20 — which "intro-
duces who we are, what we do, how we fight, and where we must go in the future" —
expressly discusses the role of law and legal institutions in naval operations, other
than to make a passing reference to the fact that naval mobility would be better as-
sured if the United States acceded to the 1982 United Nations Convention on the
Law of the Sea (1982 LOS Convention).21
Strategy as a Critical Component of the Geo-strategic Environment
Strategy is said to be "a prudent idea or set of ideas for employing the instruments of
national power in a synchronized and integrated fashion to achieve theater, national,
and/or multinational objectives."22 In setting out to achieve those national objec-
tives, strategy must be adapted to the strategic environment in which it will oper-
ate.23 Accordingly, to provide the development team with the foundation they
needed to prepare maritime strategy options for the CNO, the Naval War College
began by convening a Geo-strategic Environment Workshop. The workshop par-
ticipants drew heavily on the National Intelligence Council assessment "Mapping
the Global Future."24 Later, a British perspective was provided by the UK Ministry
The Influence of Law on Sea Power Doctrines
of Defence Development and Concepts Doctrine Centre's "Strategic Trends 2007-
2036. "25 The experts' conclusions were sobering.26
The reader is likely familiar with much of the strategic environmental picture, so
I will only summarize the most salient features. Geopolitical entropy, disorder and
uncertainty are on the rise.27 The world is said to be suffering from a global security
deficit.28 Unsustainable population growth rates, the "youth bulge" and chronic
unemployment are most pronounced in those regions lying in the so-called arc of
instability. State sovereignty and territorial integrity are on the decline.29 State
powers are increasingly diffused and devolved. Many States, even some of the most
developed States, are besieged by an unrelenting flow of illicit weapons, drugs,
money and migrants across their borders. At the same time, through what some
have described as the democratization of violence and of technology,30 States have
lost their historical monopoly on the large-scale use of force and on access to weap-
ons of mass destruction (WMD) technologies.31 Indeed, the global picture looks
much the same as it did in 1921, when William Butler Yeats penned his apocalyptic
poem The Second Coming:
Things fall apart; the centre cannot hold;
Mere anarchy is loosed upon the world,
The blood-dimmed tide is loosed, and everywhere
The ceremony of innocence is drowned;
The best lack all conviction, while the worst
Are full of passionate intensity.
Grim verses, indeed, whose dark and disturbing images still ring true.
Economic security is widely recognized as a vital interest of the State.32 Yet, pres-
ent efforts are not sufficient to meet basic security needs even within the borders of
many States, let alone provide the kind of stability needed by the globalized, inter-
dependent and tightly connected economy of the twenty-first century. Contempo-
rary security strategies must be designed to manage threats to the public order.
Those threats come from States and non-State actors. We are painfully aware that
the threats know no geographical boundaries, particularly as globalization in-
creases the porosity of borders. Accordingly, the threats must be detected and
managed in the commons, at boundaries between the commons and States, and
along the borders of adjacent States.
In an age when the international supply chains that sustain the global economy
and the seas over which those chains are carried are the common concern of all
States, global order — including order on the sea — is the new raison d'etat and
must be the goal of every maritime security policy and strategy. Irresponsible and
Craig H. Allen
incompetent flag States; failing and failed States; transnational terrorist organiza-
tions; criminal syndicates engaged in trafficking in weapons, drugs and humans;
and illegal, unreported and unregulated fishing all undermine order in the com-
mons. Here in the global commons, where the pinch from flag States falling short
in their responsibility to "effectively" exercise jurisdiction and control over their
vessels is felt most acutely,33 the security deficit is most urgent.
The Strategic Foundations Games
Following the August 2006 Geo-strategic Environment Workshop, a series of exec-
utive group meetings and war games were conducted in September and October of
2006 to develop strategic foundations for use in the Maritime Strategy Options De-
velopment Workshop in December. Those options were later vetted through the
Options Refinement Decision Support Event in February of 2007. The Interna-
tional Law Department provided legal advice to all of the war game teams and to
two of the executive groups. Early on in the process, it also provided a brief to the
Red Team Executive Group suggesting possible "lawfare" strategies and tactics that
might be used against the Blue Team.34 During this same period, the Naval War
College hosted a conference on the maritime implications of China's energy strat-
egy,35 an Intercessional Conference on Maritime Strategy and a workshop entitled
Economics and Maritime Strategy: Implications for the 21st Century.36 ILD attended
each of the events and an ILD member (the author) participated in the Economics
and Maritime Strategy Workshop, submitted a paper on legal interoperability chal-
lenges and made a presentation on international cooperation in securing the mari-
time commons.37
The Future Global Legal Orders Workshop
Let me now turn to something of greater interest to readers of this volume, all of
whom will likely appreciate that law — that is, rule sets, legal processes and
international institutions38 — is as much a part of the geo-strategic environment,
and therefore the planning "context," as geography, energy, demographics, orga-
nizational culture and technology. The international system consists principally of
sovereign States, who collectively comprise a horizontal, non-hierarchical global
order that has historically been described as one of moderated anarchy, at least by
the realists.39 Conventional wisdom posits that within that system, international
institutions and organizations ameliorate the anarchy, but with few exceptions
they do so without altering its horizontal structure.
The Influence of Law on Sea Power Doctrines
The experts who participated in the Geo-strategic Environment Workshop ex-
hibited little faith in existing international organizations and in international law.
Three sample findings demonstrate the depth of their skepticism. First, they con-
cluded that "some international organizations are looking long in the tooth and in-
capable of coping with emerging challenges." Next they concluded that "some of
the institutions that are charged with managing global problems may be over-
whelmed by them" and "the number of bilateral agreements will rise as international
organizations continue to fall short in their objectives." Given the experts' harsh
judgment of international organizations and regimes, their prescription, "Interna-
tional Organizations: out with the old, in with the new," should not surprise you.
The Workshop experts' conclusions added credence to the view that interna-
tional law is merely "epiphenomenal."40 What really affects State behavior is State
interests — that is, the underlying economic and political factors.41 Legal academics
have expressed related doubts about international law. International lawyers no
doubt recall John Austin's nineteenth-century conclusion that international law
was not positive law at all, but rather a body that partakes more of a moral obliga-
tion, violation of which may provoke the hostility of other nations but not the kind
of sanctions that attend violation of laws promulgated by a sovereign.42 And H.L.A.
Hart famously observed that because international law lacks the formal structure
of legislative courts with compulsory jurisdiction and official sanctions it is far
more primitive than the municipal law enacted by a sovereign.43
The Workshop report left some of us wondering whether their views were shared
by international law experts. Mindful that the state of the future global legal order is
a vital component in the geo-strategic environment, the President of the Naval
War College convened a two-day workshop that brought forty-two legal experts
together to examine the global legal order in 2020.44 Those experts were asked to
provide the legal component that is too often neglected in strategy documents.
With few exceptions, military strategists have a long history of giving short
shrift to international law in their writings.45 The origin of the problem can be
traced back to Carl von Clausewitz, who dismissively referred to those "certain
self-imposed, imperceptible limitations hardly worth mentioning, known as in-
ternational law and custom."46 George F. Kennan, the leading architect of Amer-
ica's Cold War containment security strategy, is also remembered for his attack on
what he saw as an excess of "legalism and moralism" in American foreign policy
during the Wilson presidency years.47 Regrettably, international lawyers have not
always done their part to engage with strategy planners, to help them forge plans
that can achieve strategic goals while respecting and even advancing the rule of
law. The experts who came to Newport were ready to do just that, in the hope that
the strategists were ready to listen.
8
Craig H. Allen
And what a distinguished group they were. They came to Newport from Argen-
tina and Australia, from Canada and Chile, and from India, Indonesia and Italy. In
all, they represented eleven countries. They were law professors; international law
specialists from the US Departments of State, Justice and Homeland Security and
the Center for Naval Analyses; a Chinese law of the sea scholar; senior legal advisors
to the Indian Coast Guard and the Italian Navy General Staff; the legal counsel to
the US Chairman of the Joint Chiefs of Staff; senior judge advocates for the US Ma-
rine Corps, Coast Guard, and several combatant and fleet commands; and the Di-
rector of the UN Division for Ocean Affairs and the Law of the Sea. They brought
backgrounds in international security law, law of the sea, arms control and prolif-
eration, the law of armed conflict, international transportation law, international
criminal law and international organizations.
The Workshop began with a brief discussion of some assumptions proposed by
the conference chair concerning the role and reach of law.48 The first was the prag-
matic observation that the new maritime strategy must be adapted to the global le-
gal order in which it will function. The second was that a robust and respected legal
order has the potential to save lives, by providing predictability and preventing
conflicts, and by providing effective and peaceful means to resolve conflicts that do
arise. The third assumption was that, while the future state of the legal order is un-
certain, it can, to some degree, be mapped and shaped, and — as Thomas Friedman
reminds us — "the future belongs to the shapers and adapters."49
To avoid what the influential British strategist Colin Gray labels the "sin of
presentism,"50 the legal experts attempted to widen their temporal lens by explor-
ing several "alternative futures," using the scenario-planning method championed
by futurists like Peter Schwartz and Philip Bobbitt.51 They initially discussed six
strawman scenarios that would collectively map the future global legal order, be-
fore adopting an approach that focused on twelve areas of potentially significant
changes in the legal order. For each of the twelve areas, the experts examined the
possible trends in the rule sets, legal processes and institutions, and in compliance
levels. Next, they were asked to consider the consequences of those changes to the
maritime strategy mission inventory and for the means and methods for carrying
out those missions. Finally, they were asked what the new maritime strategy should
say — and not say — about international law.
One would expect that forty-two lawyers from eleven different nations would
find little on which to agree. To some extent, that was the case with this group.
There was, however, one question on which every expert agreed: the new mari-
time strategy should include an express reference to international law. As one ex-
pert put it, international law "is the foundation on which we operate; it is why we
are there."
The Influence of Law on Sea Power Doctrines
The Role of Law in the New Maritime Strategy
As the legal experts concluded, there are a number of compelling reasons to em-
brace the rule of law in the new maritime strategy and no sufficient reason for fail-
ing to do so. The new strategy must be consistent with higher-level security
strategies. The 2006 National Security Strategy of the United States expressly cites
the importance of enforcing the rule of law.52 Similarly, the presidential directive
on national maritime security made it clear that in developing the National Strategy
for Maritime Security (NSMS) the United States will act consistently with interna-
tional and US law.53 The NSMS opens its chapter on "strategic objectives" by quot-
ing the presidential directive to "take all necessary and appropriate actions,
consistent with U.S. law, treaties, and other international agreements to which the
United States is party . . . ."54
But even if the higher-level strategy documents were silent on the role of law, a
maritime strategy that acknowledges the importance of law as an ordering force
and a unifying theme for the crucible of international relations — in short, the
"centre" Yeats longed for — will be far more compelling and durable. Such a docu-
ment would also be a source of pride and inspiration for the members of our armed
forces, a confidence-building measure for our friends and allies, and a key enabler
in our ability to shape the future global order.
Law as an Ordering Force
The United States has a long tradition of calling upon international law when it
serves the national interest.55 In the late eighteenth and early nineteenth centuries,
the infant republic raised international law objections to Great Britain's boarding
of US vessels on the high seas and impressment of US sailors into the Royal Navy,
and against the Barbary States for piratical attacks on US merchantmen in the
Mediterranean Sea and its approaches. Two other disputes between the United
States and Great Britain — leading respectively to the Caroline exchange of notes
and the Alabama arbitration award — produced enduring international principles
well known to the readers of this volume.56 More recently, the nation invoked in-
ternational law against Iran for breaching the inviolability of the US embassy in
Tehran and holding US diplomatic personnel and other citizens hostage, and against
the People's Republic of China for its conduct when a US Navy EP-3 was forced to
land on Hainan Island following a midair collision with a Chinese fighter.
Although national interest is surely the midwife of security policy and strategy,57
at the same time States have repeatedly demonstrated their willingness to cooper-
ate with other States to achieve shared goals or resolve common problems.
10
Craig H. Allen
Globalization and its just-in-time and just-enough logistics imperatives have fun-
damentally altered the strategic calculus, virtually mandating a cooperative ap-
proach to maritime security. Accordingly, the new maritime strategy must be
mindful of national interests while remaining ever alert to shared interests. A strat-
egy that narrowly focuses on national interests will surely reinforce existing per-
ceptions of the United States and drive away potential partners. By contrast, it takes
but little imagination to see that a new maritime strategy that defines and articu-
lates in compelling terms a framework for achieving shared goals and joint solu-
tions to common problems is much more likely to make other States want to flock
to the nascent 1,000-ship multinational navy.58
Finding common ground among national interests should not be difficult. For
some, the need to promote and protect the international trade and transportation
system on which the globalized and energy-hungry world depends is a vital na-
tional interest.59 It is also a shared interest. In the words of some, "commerce craves
security." For other States, particularly those in West Africa, South America and
Southeast Asia, protecting offshore fisheries from poachers is not merely a pursuit
of profit; it is a survival imperative. Still other States consider threats to the envi-
ronment as national "security" issues. Consider, for example, small-island devel-
oping States, for whom global warming and its attendant rise in the sea level
present an existential threat. A strategy that promotes sustainable and equitable ac-
cess to marine living resources and protection of the marine environment is sure to
have broad appeal. At the same time, however, none of these interests can be ob-
tained if the larger system is fraught with disorder and violence. In Abraham
Maslow's hierarchy of human needs, the need for security is exceeded only by basic
needs, e.g., food.60
Professor Colin Gray asserts that "order is the prime virtue; it is the essential
prerequisite for security, peace, and possibly justice. Disorder is the worst condi-
tion."61 There is, in the minds of many, no longer a "war" to be won, only security
to be secured, extended and maintained, so that war can be prevented. The spread
of terrorism and weapons of mass destruction threatens chaos, as effective power
shifts away from States to non-State actors and super-empowered individuals. To
the extent that civilization rests in part on the control of violence, and the growing
capacity of non-State actors to inflict such violence now casts a menacing shadow
over the planet, the role of law as the deep stratum undergirding international se-
curity becomes more apparent and more urgent. Law has the potential to serve as
the indispensable binding force to check and perhaps reverse our social and insti-
tutional entropy. If the States' grip on law lessens, and States become increasingly
prone to use military force, the binding force so vital to civilization may be fatally
weakened.
11
The Influence of Law on Sea Power Doctrines
In a geo-strategic environment everywhere characterized by growing uncer-
tainty, rapid change and instability, rule sets can promote greater predictability
and stability. At the same time, rule sets are not legal pixie dust that miraculously
brings order where there was once chaos. They must be given the level of respect
and enforcement necessary for credibility or no State will be willing to rely on
them. Rule sets like the UN Charter, the 1982 LOS Convention, anti-terrorism
treaties and the non-proliferation regime can increase order, but only if they are
complied with.
We recognize that not all States and non-State actors will voluntarily comply
with the rule sets, whether the rules under consideration are those relating to non-
aggression and non-proliferation or to trafficking for profit. If voluntary compli-
ance falls short, we must of course redouble our efforts to rebuild it to the level
necessary for public order. That may come through education, inducement, de-
terrence, or capacity building of States, or of global or regional international orga-
nizations.62 But make no mistake, while each of these approaches will be vital to
long-term success, they will likely never be sufficient unto themselves to provide
the needed level of security in the coming years. For that, we must add
enforcement.
Because law is not self-executing, no security strategy should be founded on un-
realistic expectations regarding the influence of law on States (let alone on non-
State actors) in the conduct of their foreign and military affairs — particularly when
survival or vital State interests, or "fundamental" religious beliefs, are at stake. Nor
should we delude ourselves about the effectiveness of international organizations
in preserving or restoring peace and security. Yet, even if, as Thomas Hobbes
warned, "covenants, without the sword, are but words and of no strength to secure
a man at all,"63 even the most committed contrarian would not counsel us to turn
our backs on covenants. International law and international organizations like the
United Nations will never be more effective or influential than the leading States
allow them to be.64 If the new US maritime strategy ignores the role of either, we di-
minish the importance of both and undermine their effectiveness. The result will
be a less ordered and less secure world. For that reason, it is vital that the maritime
strategy provide a rule-based approach for enforcing the global legal order.
In considering enforcement approaches I suggest that effective enforcement of
global rule sets will require a new way of thinking that transcends the so-called
"DIME" construct. The DIME approach, which looks to the State's diplomatic, in-
formation, military and economic "instruments of national power," is too narrow
for a global environment in which non-State actors pose significant, even cataclys-
mic, risks to States.65 This Cold War artifact, which is currently taught at US war
colleges, assumes that only a narrow set of instruments is available and that they
12
Craig H. Allen
will be used against States.66 In the post-Cold War, post-9/1 1, post-Bali, Madrid,
London subway and Lebanon 2006-2007 world, it is clear that instruments of na-
tional power will increasingly be used against non-State actors, like Al Qaeda,
Hezbollah and transnational criminal syndicates, and that the DIME approach is
not always well suited to them. The United States already reaches well beyond the
DIME framework, using a variety of leadership, managerial, institutional, cultural,
technological, law enforcement, judicial and financial measures, such as freezing
assets.67 Some of the rule violations that threaten public order are and will remain
"M" (military) issues. But many are "enhanced L" (law enforcement) issues, call-
ing for enhanced law enforcement measures.68 This broader, "DIME-plus" frame-
work will be vital to any maritime strategy — certainly for the Coast Guard and
other interagency players with maritime safety and security missions. The new
strategy must also acknowledge that without the Coast Guard, US maritime forces
will not have a seamless approach to maritime security, for without it the strategy
will lack the only alternative "end game" to killing your adversaries or detaining
them on remote islands: arresting and prosecuting them. The Coast Guard puts the
"L" factor in what is otherwise a limited DIME tool kit for addressing many of our
maritime security problems. The next strategy must adapt itself accordingly.
Law as a Unifying Theme
Several of the outside experts engaged in the maritime strategy development pro-
cess hosted by the Naval War College highlighted the need for the new document
to include a "compelling narrative" that will ensure it is read, studied and imple-
mented. How do you select a theme that will counter the scores of centrifugal
forces, unify the elements of the strategy, and serve as the leadership spark and cat-
alyst to bring together the three maritime services with overlapping yet unique
identities, the other interagency players so essential to the mission, and interna-
tional friends and allies, while at the same time winning over or at least muting inter-
governmental and non-governmental organizations? I suggest that law and its
proven, albeit imperfect, capability to promote order, security and prosperity can
be a powerful unifying theme and force in the new maritime strategy in the globalized,
media-sensitive world in which we find ourselves. In fact, the new strategy has the po-
tential to go a long way toward rehabilitating the reputation of the United States as an
overweening hegemon that has become tone deaf to the concerns of its allies.69
Global security requires global cooperation and, for many, law provides the
logic and language of cooperation. Adherence to shared rule sets can be an effective
unifying force. Some would go so far as to say it is now embedded in the cosmopol-
itan DNA. For that reason, an explicit embrace of the rule of law could prove to be
13
The Influence of Law on Sea Power Doctrines
one of the most attractive features of the new maritime strategy for the Navy's in-
teragency and international partners. Promotion and implementation of rule sets
would give the strategy internal coherence and broad external appeal. Any strategy
that downplays, or still worse denigrates, international law and international orga-
nizations, as does the current National Defense Strategy of the United States, ill
serves the nation's long-term interest. Much of the world still considers the United
Nations the primary if not sole source of legitimacy for the use of force. A strategy
that suggests that military force will be deployed in a manner that some will con-
clude violates the UN Charter, which prohibits the use of force or even the threat to
use force against the political independence or territorial integrity of a State, will
further isolate the nation.
The importance of common rule sets, based on international law as a unifying
force in combined operations, will not be lost on those who observed the evolu-
tion of the Proliferation Security Initiative (PSI) and the recent UN Security
Council resolutions on proliferation threats to international peace and security.
Both make clear that most of the world will insist on an approach that respects in-
ternational law.
Early positions taken by then-Under Secretary of State John Bolton at the July
2003 PSI-participating States' meeting in Brisbane suggested that with respect to
legal justifications for PSI boardings, the United States was "taking nothing off the
table," including the Article 51 right of self-defense. That was understood by some
as advocating a position on boarding foreign flag vessels believed to be transporting
weapons of mass destruction that might go beyond what current international law
permits. At their meeting in Paris three months later, several of the PSI-participating
States responded to the US opening position with a call for all participating States
to subscribe to a common Statement of Interdiction Principles. The two-page
statement eventually adopted at that meeting, and still in force, twice expresses the
participating States' commitment that PSI activities will be carried out in a manner
consistent with international law. Similarly, Security Council Resolutions 1540,
condemning proliferation of weapons of mass destruction to or by non-State ac-
tors, and 1718, applying similar prohibitions to North Korea, both tie any enforce-
ment measures to the applicable rules of international law.
Law and the Expectations of Our Partners
Admiral Harry Ulrich, Commander, US Naval Forces Europe, espouses a relatively
simple formula for the global war on terrorism: have more partners than your ad-
versaries have. The reasons are elementary. The struggle against disorder knows no
flag. Waging that struggle has become a team sport. Vice Admiral Morgan has been
14
Craig H. Allen
the leading voice for the 1,000-ship multinational navy/ Global Maritime Partner-
ship, a concept designed to attract the kind of partners Admiral Ulrich seeks. Does
the Global Maritime Partnership (and the Global Fleet Station initiative70) need a
unifying global maritime strategy that promises to respect the rules of interna-
tional law? Many of the potential 1,000-ship-navy partners think so.71
In their response to the November 2005 "1,000 Ship Navy" article by Admirals
Morgan and Martoglio,72 the naval commanders of France, Ghana, India, Portugal
and Spain all referred to the rule of law or legal considerations.73 The French com-
mander, for example, observed that any 1,000-ship-navy operations must be "in
full compliance with the UN Convention on the Law of the Sea . . . ." Portugal ex-
pressly referred to the "rule of law," and India asked whether the 1,000-ship con-
cept should be established under the aegis of the United Nations. Admiral Soto of
the Spanish Navy observed that "[tjogether we must find a legal solution to pre-
serving the natural flow of friendly maritime trade while denying freedom of action
to those criminals who attempt to use the maritime space for illegal activities." It
seems clear that respect for international law has the potential to unite or fracture
the embryonic 1,000-ship navy.
One year later, many of those same foreign CNOs were asked to respond to
Admiral Mullen's plan for a new US maritime strategy.74 Once again, interna-
tional law figured prominently in several of the responses. The Commandant of
the Brazilian Navy urged that the new strategy "be guided by principles sanc-
tioned by international law," a viewed shared by the Secretary General of the Pe-
ruvian Navy and the Portuguese Navy Chief of Staff. Their counterpart in
Colombia emphasized the need for an "international legal mechanism of cooper-
ation." Uruguay's reply was also directly on point: "Multilateral cooperation
among navies is legitimate activity when it is based on the law." The Commander
of the Lebanese Navy cited the 1982 LOS Convention and cautioned against the
United States acting alone, while the new Chief of Staff for the Spanish Navy
highlighted the need for the US Navy "to operate alongside its allies in accordance
with international law." The Australian Maritime Doctrine elegantly and force-
fully captures the central importance of law and legitimacy for one of America's
most respected partners:
Australia's use of armed force must be subject to the test of legitimacy, in that the
Government must have the capacity to demonstrate to the Parliament and the
electorate that there is adequate moral and legal justification for its actions [T]his
adherence to legitimacy and the democratic nature of the Australian nation state is a
particular strength. It is a historical fact that liberal democracies have been more
successful in the development and operation of maritime forces than other forms of
government, principally because the intensity and complexity of the sustained effort
15
The Influence of Law on Sea Power Doctrines
required for these capabilities places heavy demands upon a nation's systems of state
credit, its technological and industrial infrastructure, and its educated population.
Sophisticated combat forces, in other words, depend directly upon the support of the
people for their continued existence.75
Finally, a bit closer to home, in the 2007 US Coast Guard Strategy for Maritime
Safety, Security, and Stewardship, the Commandant of the Coast Guard, who you
will recall will be asked to join in the coming maritime strategy, has clearly identi-
fied the need to update and strengthen maritime regimes to address emergent
threats and challenges and to support US ocean policy. More specifically, the Com-
mandant has concluded that the "nation needs a set of coordinated and interlock-
ing domestic and international regimes that . . . balance competing uses within the
maritime domain" and that "[strengthened rules, authorities, and agreements . . .
enable consistent, coordinated action on threats and provide an acceptable frame-
work of standards that facilitate commerce and maritime use."76 The lessons seem
plain: a Navy-led maritime strategy that similarly acknowledges the important
contributions of rule sets to promoting public order is far more likely to attract the
support of international and interagency partners.77
Law and Our Opportunity to Shape and Influence
Serious students of international law and relations understand that the law is not
complete, nor is it perfect. We also know that it can and will be influenced,
adapted, developed, clarified and explained — in other words, shaped — in the com-
ing years. Who will be most influential in the law development enterprise? Those
who embrace the rule of law, while working to remedy its shortfalls, or those who
sullenly turn their backs on the enterprise?78
In his 2006 Current Strategy Forum remarks, Admiral Mullen cited as two of the
nation's three enduring naval strengths the capacity to "influence" and "to build
friends and partners." The legal experts had something to say about both. There
seemed to be widespread agreement among the experts that it is not enough to sim-
ply know and follow the rules of international law; there is also an urgent need to
shape those rules.79 For example, leadership on freedom of navigation and over-
flight— for warships and military aircraft and the commercial vessels and aircraft
on which the global economy depends — will be crucial in the coming years. Some
experts' assessments reveal the magnitude of the coming challenge to shape inter-
national maritime law on navigation issues:
• 38 percent of the experts believe that the regime for innocent passage in the
12-mile territorial sea will not remain stable between now and 2020. When they
16
Craig H. Allen
were asked the same question about transit passage through international straits
and archipelagic sea lanes passage, the numbers went up to 41 percent and 51
percent respectively.80
• 95 percent of the experts believe that in the coming years more States will
claim the right to exercise jurisdiction and control over military activities in their
200-mile exclusive economic zones.81
To lead on freedom of navigation and overflight, or any other law of the sea is-
sue, it is crucial that the United States become a party to the 1982 LOS Convention
and participate in the United Nations' annual law of the sea processes. Moreover,
to encourage others to respect those parts of the rule set about which we are most
concerned — the navigation rights of warships and military aircraft and the non-
proliferation regime, for example — we must be clear that we respect the entire rule
set,82 as consented to by each State, including the provisions that might seem less
important or even "quaint" to us. We cannot hope to "shape" the global or regional
legal order unless we are a good-faith participant in the system. After all, why
would any State acquiesce in letting us help define a rule set if they know that we in-
tend to later exempt ourselves from it?
At the same time, there is growing concern that law is increasingly used by less
powerful States and by non- State actors as an asymmetric instrument to discredit or
otherwise balance against more powerful States, even proclaiming that less powerful
States are not bound by the same rules.83 It has been observed that less powerful
States respond to sea control strategies by more powerful adversaries by employing
sea denial strategies and tactics. Naval mines commonly come to mind,84 but lately
"lawfare" strategies seek to restrict the navigation rights and freedom of action of
powerful States by exerting pressure on them to bind themselves to new legal re-
gimes,85 or by employing existing legal regimes to discredit the more powerful
State. As Professor Davida Kellogg at the University of Maine has argued forcefully,
the response to such tactics must not be a reflexive denigration of law, but rather a
decisive and well-reasoned rejoinder that unmasks this abuse of the law.86
The new maritime strategy will almost certainly have an effect on the law by what
it says — or does not say — about the role of law in modern maritime security opera-
tions.87 In a system where international law is made in part by State practice, navies
make international law every day by what they say and what they do. At the same
time, and for the same reason, the strategy's treatment of law will affect the ability
of the United States to influence the future direction of international regimes and
organizations. The Navy can create or ease friction by what it says or does not say
about the law in the new strategy and enhance or erode its credibility and therefore
its effectiveness as a shaping influence.88
17
The Influence of Law on Sea Power Doctrines
Law's Role in Preserving and Enhancing the Service Ethos
At an early Naval War College session involving veterans of prior Navy maritime
strategy drafting teams, Professor Roger Barnett spoke of the importance of under-
standing the Navy's culture in crafting any capstone strategy document. That cul-
ture, it seems to me, plainly includes a deep appreciation for international law. In
describing the most desirable qualifications for a naval officer, Captain John Paul
Jones wrote more than two hundred years ago that the "naval officer should be fa-
miliar with the principles of International Law . . . because such knowledge may of-
ten, when cruising at a distance from home, be necessary to protect his flag from
insult or his crew from imposition or injury in foreign ports."89 US Navy Regula-
tions have long codified the requirement for its members to comply with interna-
tional law.90 Compliance is facilitated by a proactive training and education
program.
International law was among the first subjects taught in the opening days of the
Naval War College in 1 884 and the Naval War College is still the only war college in
the United States to have a dedicated International Law Department. The first ci-
vilian to join the Naval War College faculty was James R. Soley, appointed in the
foundation year of the College to teach international law. In 1901, the well-known
publicist John Bassett Moore joined the faculty as a professor of international law
and later initiated the College's International Law Studies ("Blue Book") series.
The first academic chair at the Naval War College was the Chair in International
Law, established on July 11,1951, and filled by Harvard's Bemis Professor of Inter-
national Law and Permanent Court of International Justice Judge Manley O. Hud-
son. In 1967 the chair was named in honor of Rear Admiral Charles H. Stockton,
an international law scholar and former president of the Naval War College.
Our personnel have a right to expect that their capstone strategy will honor the rule
of law. We have a new generation of men and women who are drawn to the all- volunteer
forces by a combination of pride, patriotism and the need for self-affirmation. They
are at their best when they believe in themselves, their service and their nation. Our
accession programs and ceremonies emphasize respect for law and principle. The
oath of office for military officers includes a pledge to support and defend the Con-
stitution of the United States — not a monarch, but rather a body of law. Our oldest
warship in commission is named not after a president or a famous battle, but rather
that same hallowed legal text. The core principles of the Navy, Marine Corps and
Coast Guard all highlight the importance of honor, which for Marines expressly in-
cludes the obligation to respect human dignity. Those creeds also recognize the im-
portance of courage, one version of which expressly includes "moral courage,"
describing it as the inner strength to do what is right and to adhere to a higher
18
Craig H. Allen
standard of conduct.91 The service members who take these oaths and are moved
by these creeds represent our nation's finest, and they deserve to know more than
merely how and where they will fight; they deserve to know why they fight — that
is, the principles they are being asked to support and defend. The Navy lieutenant
junior grade leading her boarding team onto a freighter in the Arabian Gulf to
conduct a Proliferation Security Initiative boarding and the battalion landing team
sergeant major ordering his Marines into the LCACs and CH-46s to execute a non-
combatant evacuation operation should both be able to see their core values re-
flected in the maritime strategy that sent them on their missions.
Conclusion
The decision by the Naval War College to integrate faculty from the College's In-
ternational Law Department and outside legal experts into the strategy develop-
ment process wisely ensured that the core strategy development team had access to
a thoughtful and informed assessment of the future global legal order. Legal partic-
ipation in the process by no means assures that the law will play a role in the new
strategy, but there's every reason to believe that it will.
Respect for the rule of law is a signal strength for those who practice it and a vex-
atious, corrosive and embarrassing source of friction for those who fail to do so. By
clearly embracing a position that promises respect for the rule of law in the new
maritime strategy, the Navy can seize the opportunity to enhance its legitimacy and
its ability to attract coalition partners, instill pride in its members and position it-
self more effectively to shape the global order. The Coast Guard has shown the way
forward with its new Strategy for Maritime Safety, Security, and Stewardship.92 But
let there be no mistake: "respect" for the rule of law entails more than a one-sided
obligation for the United States to obey the relevant laws advocated by
asymmetricians.93 It also means that we will expect others to comply with the law,
including those provisions that, in the words of John Paul Jones more than two
centuries ago, "protect" the nation, its vessels and aircraft, and their navigational
rights and freedoms.
With all the buildup it has been given, the new strategy must not fall short in
providing a fresh and proactive approach to a demonstrably new threat environ-
ment that has shaken a lot of people's confidence in the US national security sys-
tem. It should be a strategy of hope and action, rather than one born of despair and
cynicism. Whether you are an idealist aspiring to establish a shining city on the hill
that reveres the rule of law for its own sake, or a calculating utilitarian methodically
calibrating means to ends, there is much to value in a more robust rule of law,
forcefully advocated by the three maritime service chiefs. For the utilitarians, ask
19
The Influence of Law on Sea Power Doctrines
the Marines and soldiers in Fallujah, Ramadi and Kandahar whether the threat en-
vironment was better or worse after images of the disgraceful and lawless acts at the
Abu Ghraib prison flashed across the Internet and Al Jazeera. While you're at it, ask
them how it affected their pride as American service members. We cannot always
control the behavior of our members, but our service chiefs can be firm and un-
equivocal about the fundamental principles for which we stand.
It must seem to many that the world has not changed much since the interwar
years that drove Yeats to lament the loss of conviction by the best, the rise of pas-
sionate intensity by the worst, and the collapse of the "centre."94 What he left un-
named is the source and nature of that center and how we might fortify it. For
many in Yeats' age, the ordering force to provide that center was to be found in the
hopeful vision of a new League of Nations. Their modern counterparts look to the
rule of law developed and implemented by forward-thinking States coming to-
gether in respected and competent international organizations.95
I will close with a report on the informal surveys I conduct each year at my law
school. In the first week of classes back in Seattle I ask my students for their views
on the "rule of law." They have so far been unanimous in their approval of the prin-
ciple, though some are skeptical of its empirical record. But when I then ask them
to define the rule of law, their brows furrow and they grow silently pensive. We
shouldn't be too hard on them. Few law school casebooks attempt to describe the
rule of law or postulate its force or trajectory. And you will not be too surprised to
learn that the Department of Defense dictionary does not define it. We must work
to remedy that oversight. The legal profession has a well-earned reputation for per-
suasive communication. And I believe, as did Alexis de Tocqueville,96 that we in the
legal profession have a special province and duty. If law is the logic and language of
global cooperation, we are its most proficient expositors. As such, it is, I believe, in-
cumbent upon us all to embrace the rule of law as our lodestar, as the "center" for
this tumultuous new century.97 In short, it is time for us to take up the baton from
Professor O'Connell and advance it steadily forward toward that elusive finish line.
Postscript on US Accession to the 1982 LOS Convention
The legal experts widely agreed that the first challenge that must be met is to obtain
the necessary Senate and presidential action for the United States to accede to the
1982 LOS Convention. Nothing less than an all-agency full-court press will be suf-
ficient. If the three maritime services and their allied agencies fail to persuade the
Senate to approve the LOS Convention during the One Hundred Tenth Congress,
a maritime strategy that purports to affirm the importance of law to global security
20
Craig H. Allen
will have no credibility. Words without consistent action will soon be ignored and
forgotten.
The call for Senate action was renewed when, during his January 30, 2007 con-
firmation hearing before the Foreign Relations Committee to serve as Deputy Sec-
retary of State, former Director of National Intelligence John D. Negroponte
affirmed the administration's strong support for the Convention. One week later,
the Department of Defense once again included the LOS Convention on its treaty
priority list.98 The next day, the President's National Security Advisor, Stephen
Hadley, wrote to Senator Joseph Biden, the new Chairman of the Senate Foreign
Relations Committee, citing the "historic bipartisan support for the Law of the Sea
Convention" and requesting Senate action "as early as possible during the 110th
Congress."99 On May 15, 2007, President Bush formally announced that he was
urging the Senate to give its advice and consent to accession to the Convention
during the current session of the Congress.100 On June 13, 2007, Deputy Secretary
of State Negroponte and Deputy Secretary of Defense Gordon England joined in
an op-ed supporting accession.101 The Navy and Coast Guard have long worked to
gain Senate approval for the Convention. A recommendation that the United
States accede to the Convention was the first resolution to come Out of the US
Commission on Ocean Policy chaired by former CNO Admiral James Watkins. In
testimony before the Congress on March 1, 2007, Secretary of the Navy Donald
Winter, Chief of Naval Operations Admiral Mike Mullen and Commandant of the
Marine Corps James Conway unequivocally affirmed the Navy Department's sup-
port for US accession.102 Admiral Thad Allen, Commandant of the Coast Guard,
similarly reaffirmed his service's support for accession on May 17, 2007. 103
Thus, there is every reason to be optimistic about the fate of the 1982 LOS Con-
vention within the Senate this time. Painfully, however, we have been this close
once before. It seemed like success was at hand in 2004, when Senator Lugar pro-
vided the needed leadership on the Foreign Relations Committee to achieve a
unanimous recommendation out of that Committee that the US Senate should pro-
vide its assent. Somehow, however, a small but vocal opposition was able to persuade
the Senate leadership not to bring the treaty to a floor vote.104 If the Senate cannot
now be persuaded to approve the LOS Convention, other parties to the Conven-
tion will continue to shape developments in the Commission on Continental Shelf
Limits, International Seabed Authority and International Tribunal for the Law of
the Sea and, perhaps, add a gloss to the Convention's text through the recognized
process of agreed-upon interpretations.105
21
The Influence of Law on Sea Power Doctrines
Notes
1. There is apparently no statutory mandate for such a plan; however, 10 US Code sec.
5062(a) (2006) provides that
[t]he Navy shall be organized, trained, and equipped primarily for prompt and
sustained combat incident to operations at sea. It is responsible for the preparation of
naval forces necessary for the effective prosecution of war except as otherwise assigned
and, in accordance with integrated joint mobilization plans, for the expansion of the
peacetime components of the Navy to meet the needs of war.
2. A timeline of the process is available at http://www.nwc.navy.mil/cnws/marstrat/overview
.aspx (last visited Feb. 8, 2008). Efforts at the Naval War College were led by Robert Rubel, Dean
of the Center for Naval Warfare Studies.
3. D.P. O'CONNELL, THE INFLUENCE OF LAW ON SEA POWER (1976). Other works examin-
ing legal limits on naval operations include MARK W. JANIS, SEA POWER AND THE LAW OF THE
SEA (1976) and THOMAS GIBSON BOWLES, SEA LAW AND SEA POWER (1910).
4. O'CONNELL, supra note 3, at 13.
5. O'Connell also notes that "there is no public servant with such means of involving his
government in international complications as the naval officer." Id. at 179.
6. see, e.g., alfred thayer mahan, the influence of sea power upon history
1660-1783 (5th ed. 1894); peter padfield, maritime supremacy and the opening of the
Western Mind: Naval Campaigns that Shaped the Modern World, 1588-1782 (1999);
Peter Padfield, Maritime Power and the Struggle for Freedom: Naval Campaigns
that Shaped the Modern World, 1788-1851 (2003); Michael A. Palmer, Command at
Sea: Naval Command and Control since the Sixteenth Century (2005); Norman
Friedman, Seapower as Strategy: Navies and National Interests (2001); Arthur
Herman, To Rule the Waves: How the British Navy Shaped the Modern World
(2005). Although Herman's account does document the Royal Navy's contributions to eradicat-
ing piracy and slavery, his focus there is best characterized as the influence of the use of sea power
on law, not the other way around.
7. Admiral Mike Mullen, Remarks at the Current Strategy Forum, Naval War College,
Newport, Rhode Island, June 14, 2006, available at http://www.navy.mil/navydata/people/cno/
Mullen/CNO_CSF140606.pdf. See also Brendan M. Greeley Jr., The CNO Calls for a New Mari-
time Strategy, US NAVAL INSTITUTE PROCEEDINGS, July 2006, at 6. But see Jan S. Breemer, The
End of Naval Strategy: Revolutionary Change and the Future of American Naval Power, 22 STRATE-
GIC REVIEW, Spring 1994, at 40-53.
8. Commandant of the Marine Corps, Chief of Naval Operations & Commandant of the
Coast Guard, A Cooperative Strategy for 21st Century Seapower (Oct. 2007), available at http://
www.navy.mil/maritime/MaritimeStrategy.pdf.
9. Vern Clark, Sea Power 21: Projecting Decisive Joint Capabilities, US NAVAL INSTITUTE
PROCEEDINGS, Oct. 2002, at 32 (describing the Sea Strike, Sea Shield and Sea Basing capabilities).
10. US Marine Corps, Marine Corps Strategy 21 (Nov. 3, 2000), available at http://
www.usmc.mil/templateml.nsf/25241abbb036b230852569c4004eff0e/$FILE/strategy.pdf.
1 1 . Chief of Naval Operations, Navy Strategic Plan in support of Program Objective Memo-
randum 08 (May 2006), available at http://www.jhuapl.edu/MaritimeRegistry/Documents/nsp
_2006.pdf.
22
Craig H.Allen
12. Chief of Naval Operations & Commandant of the Marine Corps, Naval Operations
Concept 2006, available at http://www.mcwl.quantico.usmc.mil/concepts/ServiceConcepts/
NOC%20FINAL%2014%20Sep.pdf.
13. Commandant of the Coast Guard, US Coast Guard Strategy for Maritime Safety, Secu-
rity, and Stewardship (Jan. 19, 2007), available at http://www.uscg.mil/comdt/speeches/docs/
CGS-Final.pdf.
14. The CNO and the Commandant of the Coast Guard have also joined in the National
Fleet Policy. See Michael G. Mullen & Thomas H. Collins, National Fleet: A Joint Navy/Coast
Guard Policy Statement (Mar. 3, 2006) (noting that the Coast Guard's contributions to the na-
tional fleet will include statutory authorities and law enforcement teams for full-spectrum oper-
ations, including maritime security and counterterrorism operations), available at http://
www.navy.mil/navydata/cno/2006_national_fleet_policy.pdf. See also Thad Allen & Mike
Mullen, America's National Fleet: A Coast Guard-Navy Imperative, US NAVAL INSTITUTE PRO-
CEEDINGS, Aug. 2006, at 16-20.
15. Other institutions in the strategy development process included the US Naval Academy,
Naval Postgraduate School, Center for Naval Analyses, US Army War College, National War
College and the Applied Physics Laboratory at Johns Hopkins University.
16. The White House, National Security Strategy of the United States (Mar. 2006), available
at http://www.whitehouse.gov/nsc/nss.html [hereinafter National Security Strategy] . See also
JOHN F. LEHMAN JR., COMMAND OF THE SEAS 121 (Bluejacket ed. 2001) (1988) (listing as the
first of his eight principles of maritime strategy that "maritime strategy is derived from and de-
pendent on the overall national security strategy established by the president").
17. Cf. 50 US Code sec. 404a (2006).
18. See Chairman of the Joint Chiefs of Staff, Joint Publication 3-13, Doctrine for Joint Op-
erations, at 1-4 to 1-5 (2001).
19. They include, for example, The Maritime Strategy (1984), . . . From the Sea (1992) and
Forward . . . From the Sea (1998). The classified version of The Maritime Strategy was issued in
1984. See The Evolution of the U.S. Navy s Maritime Strategy, 1977-1986, NEWPORT PAPERS, No.
19 (John B. Hattendorf ed., 2004). Then-CNO Admiral James Watkins published a summary of
the strategy in PROCEEDINGS OF THE NAVAL INSTITUTE in 1986. See James D. Watkins, The Mar-
itime Strategy, US NAVAL INSTITUTE PROCEEDINGS, Jan. 1986, at 1. The latter two strategies are
reproduced in U.S. Naval Strategy in the 1990s, NEWPORT PAPERS, No. 27 (John B. Hattendorf
ed., 2006).
20. Office of the Chief of Naval Operations & Headquarters United States Marine Corps,
Naval Warfare (1994), available flfwww.dtic.mil/doctrine/jel/service_pubs/ndpl.pdf. Report-
edly, the publication is under revision.
21. United Nations Convention on the Law ofthe Sea art. 94, Dec. 10, 1982, 1833U.N.T.S. 3,
reprinted in 21 INTERNATIONAL LEGAL MATERIALS 1261 [hereinafter 1982 LOS Convention].
22. Department of Defense, Joint Publication 1-02, DoD Dictionary of Military and Associ-
ated Terms (2007), available at http://www.dtic.mil/doctrine/jel/doddict/.
23. See LEHMAN, supra note 16, at 131.
24. See NATIONAL INTELLIGENCE COUNCIL, MAPPING THE GLOBAL FUTURE: REPORT OF
the National Intelligence Council's 2020 Project (2004), available at http://www.dni
.gov/nic/NIC_globaltrend2020.html.
25. UK Ministry of Defence Development and Concepts Doctrine Centre, Strategic Trends
2007-2036 (3d ed. 2007), available at http://www.mod.uk/NR/rdonlyres/5CB29DC4-9B4A
-4DFD-B363-3282BE255CE7/0/strat_trends_23jan07.pdf.
23
The Influence of Law on Sea Power Doctrines
26. US Naval War College, Results of the Maritime Strategy Geo-strategic Environment
Workshop 23-24 August 2006 available at http://www.nwc.navy.mil/cnws/marstrat/docs/
research/Aug_25_Geostrategic_Workshop_Final_Report.pdf.
27. See generally ROBERT D. KAPLAN, THE COMING ANARCHY: SHATTERING THE DREAMS
of the Post Cold War (2000).
28. Thomas P.M. Barnett, The Pentagon's New Map: War and Peace in the
Twenty-First Century 179, 313-15 (2004).
29. US Special Operation Command's "sovereign challenge" initiative is designed to help
other States appreciate the effect of global terrorism on State sovereignty. Among other things, it
has persuaded US Southern Command to avoid phrases such as "coalition partners" and "part-
ner nations," and instead use "sovereign nations" to reinforce the importance of the State. See
Sovereign Challenge: The Network for Sovereign Nation Collaboration toward a Global Anti-
terrorist Environment, available at http://www.sovereignchallenge.org (unclassified, but re-
stricted access).
30. Fareed Zakaria, The Future of Freedom (2003).
31. See generally MARTIN VAN CREVELD, THE TRANSFORMATION OF WAR 197-98, 204
(1991). See also RUPERT SMITH, THE UTILITY OF FORCE: THE ART OF WAR IN THE MODERN
WORLD (2007); NlALL FERGUSON, THE WAR OF THE WORLD: TWENTIETH-CENTURY CONFLICT
AND THE DESCENT OF THE WEST (2006).
32. Some would include environmental security as well. See generally THOMAS HOMER-
Dixon, Environment, Scarcity, and Violence (1999).
33. 1982 LOS Convention, supra note 21, art. 94.
34. For two views on lawfare, see Charles Dunlap, Legal Issues in Coalition Warfare: A US
Perspective, in THE LAW OF WAR IN THE 2 1ST CENTURY: WEAPONRY AND THE USE OF FORCE 22 1
(Anthony M. Helm ed., 2006) (Vol. 82, US Naval War College International Law Studies) and
Davida E. Kellogg, International Law and Terrorism, MILITARY REVIEW, Sept./Oct. 2005, at 50.
35. Held Dec. 6-7, 2006.
36. A report of the proceedings and the papers of the Workshop are found in ECONOMICS
and Maritime Strategy: Implications for the 2 1st Century (Richmond M. Lloyd ed.,
2006), available at http://www.nwc.navy.mil/academics/courses/nsdm/rugerpapers.aspx.
37. Craig H. Allen, Legal Interoperability Issues in International Cooperation Measures to Se-
cure the Maritime Commons, in id. at 113.
38. As used herein, "international institutions" refers to a set of rules that stipulate the ways
in which States should cooperate and compete with each other. They call for decentralized coop-
eration of individual sovereign States, without any effective mechanism of command. They are
sometimes formalized into international agreements and embodied in international organiza-
tions with their own personnel and budgets. See John J. Mearsheimer, The False Promise of Inter-
national Institutions, 19 INTERNATIONAL SECURITY, Winter 1994/95, at 5. The Proliferation
Security Initiative is an example of an international institution that is not based on a formal
agreement or organization. See US Department of State, Bureau of Public Affairs, Fact Sheet,
Proliferation Security Initiative (Feb. 9, 2006), http://www.state.gOv/t/isn/60896.htm. See also
Sean D. Murphy, Contemporary Practice of the United States Relating to International Law, Inter-
national Criminal Law: "Proliferation Security Initiative" for Searching Potential WMD Vessels, 98
AMERICAN JOURNAL OF INTERNATIONAL LAW 355 (2004). By contrast, the International Atomic
Energy Agency (IAEA) is an international organization that facilitates an international regime.
For a description of the IAEA's mission, see IAEA.org, The "Atoms for Peace" Agency, http://
www.iaea.org/About/index.html (last visited Feb. 8, 2008).
24
Craig H. Allen
39. Realism is one of several positive theories of international relations that seek to (1) de-
scribe the world of international affairs, (2) predict how it might change in the coming years and
(3) prescribe a response to that world. Such positive analysis must be distinguished from the nor-
mative approaches in political philosophy.
40. See Stephen D. Krasner, Structural Causes and Regime Consequences: Regimes as Inter-
vening Variables, 36 International Organizations 185, 190 (1982).
41. Id. at 189. In reviewing Anthony Arend's book Legal Rules and International Society,
David Bederman surveys views on international law held by the various schools of interna-
tional relations:
But if [international relations (IR)] theory could not divine a categorical conclusion as
to the ultimate nature of the international order, both realists and institutionalists
could agree on some things. One of them was that international law was irrelevant. The
classical realist position, championed by such epic figures as Hans Morgenthau and
George Kennan, is that international law is "epiphenomenal" ([that is,] stupid). The
classical realists' intellectual successors, the structural realists (or neorealists), are no
less hostile to international law. Such writers as Kenneth Waltz, John Mearsheimer, and
Joseph Grieco were emphatic in their dismissal of international legal rules as an
independent force influencing the behavior of nations. All that matters, according to
the realists (whether classical or structural), is power. In their view, legalities can never
constrain power. And if this seems dreary in a Hobbesian way, the rational
institutionalists of IR theory are really no better. As Professor Arend notes at the outset
of his book, institutionalists were quick to "sell-out" international law in their rush to
defend themselves against the onslaught of realist attack. Much of rational
institutionalist scholarship does not mention international law by name, preferring,
instead, to resort to a bewildering array of jargon for such phenomena as regimes,
norms, and values. International law, in the minds of such writers as Robert Keohane,
Stephen Krasner, and Oran Young, is just, well, too legal. And even though the rational
instutitionalists espouse the view that institutions and regimes reduce transaction costs,
stabilize expectations, allow "repeat-playing" and cooperation in international affairs,
and permit decentralized enforcement of norms, none of these virtues necessarily
translates into the recognition of definitively legal rules. According to the
institutionalists, international law might impact "low-politics" — that realm of policy
that is not at the core of central state interests. For the rational institutionalists, where
rules really matter, there really is no law. This is what makes the institutionalists
rational, at least in the view of their archenemies, the realists.
See David J. Bederman, Constructivism, Positivism, and Empiricism in International Law, Review
of Anthony Clark Arend, Legal Rules and International Society (1999), 89 GEORGETOWN LAW
JOURNAL 469 (2001) (footnotes omitted). Others respond that whatever its status as positive law,
mere epiphenomenal character, or its comparatively primitive state of development, there is no
denying that international law exerts a normative force on State behavior.
42. JOHN AUSTIN, THE PROVINCE OF JURISPRUDENCE DETERMINED 208 (1832). Lord Aus-
tin is said to have once likened the effect of international law to that of a hedgerow: while not
blocking one's path, it certainly redirects one's trajectory.
43. Herbert Lionel Adolphus (H.L.A.) Hart, The Concept of Law 209, 226 (1961).
For a forceful argument that the rules, principles and institutions of international law are essen-
tially complete, see Vaughan Lowe, The Politics of Law-Making: Are the Method and Character of
Norm Creation Changing?, in THE ROLE OF LAW IN INTERNATIONAL POLITICS 207-12 (Michael
Byers ed., 2000).
25
The Influence of Law on Sea Power Doctrines
44. The final report of the Naval War College Legal Experts' Workshop is available at http://
wuw.nwc.navv.mil /enws maistiat/docs/research/Legal_Experts_Final_Report.pdf (last visited
Feb. 8, 2008).
45. See, Cg.,COLINS. GRAY, THE SHERIFF: AMERICA'S DEFENSE OF THE NEW WORLD ORDER
3 ( 2004 ) 1 in referring to the NATO intervention in Kosovo, without UN Security Council autho-
rization, he argues that "[bjecause world politics comprises a distinctly immature political sys-
tem, we have to be somewhat relaxed about some of the legal niceties").
4b. Carl VON Clalsew ITZ, On War 75 (Michael Howard & Peter Paret eds. and trans.,
4:. George f. Kennan, American Diplomacy, 1900-1950, at 95 (expanded ed., 1984)
(1951).
48. The assumptions were generally drawn from several reports on the experts' list of recom-
mended materials, which included the Center for Strategic and International Studies' multime-
dia presentation. Seven Revolutions, http://7revs.csis.org/sevenrevs_content.html (last visited
Feb. 1 1, 2008); The Princeton Project on National Security, G. JOHN IKEXBERRY & ANNE-Marie
Slaughter, Forging a world of Liberty Under Law, U.S. National Security In The
21ST CENTURY (2006), available at http://www. princeton.edu/~ppns/report. html; and UN
Secretary-General's High-Level Panel on Threats, Challenges and Change, A More Secure World:
Our Shared Responsibility (2004), available at http://www.un.org/secureworld.
49. Thomas Friedman, Lexus and the Olive Tree 239 (2000).
50. Colin S. Gray, Stability Operations in Strategic Perspective: A Skeptical View, PARAME-
TERS, Summer 2006, at 4.
5 1 . Philip Bobbitt, The Shield of Achilles: War, Peace and the Course of History
314-16 (2002); Peter Schwartz, The Art of the Long View: Planning for the Future in
an Uncertain World (1991).
52. National Security Strategy, supra note 16, at 4-5.
53. The White House, National Security Presidential Directive 41 /Homeland Security Presi-
dential Directive 13, at 2 (Dec. 21, 2004). See generally Department of Homeland Security, Na-
tional Security Presidential Directive 41/Homeland Security Presidential Directive 13, available
<?r http://www. dhs.gov/xprevprot/programs/editorial_0597.shtm.
54. The White House, National Strategy for Maritime Security 7 (Sept. 2005), available at
http://www.whitehouse.gov/homeland/maritime-security.html.
55. National interests include survival, defense of the homeland, economic well-being, fa-
vorable world order and promotion of values. States are more willing to place their trust in inter-
national law and organizations for the protection and promotion of the latter three interests, less
likely to do so with defense of the homeland, and would almost never do so when the State's sur-
vival is at stake.
56. See The Caroline (exchange of diplomatic notes between Great Britain and the United
States, 1842), 2 JOHN BASSETT MOORE, DIGEST OF INTERNATIONAL Law 409, 412 (1906); Ala-
bama Claims Arbitration (U.S. v. U.K.), 1 Int. Arb. 495, 656 (John Bassett Moore ed., 1872).
57. I avoid arguments based on altruism, noting Colin Gray's observation that "altruism has
a thin record in strategic history and, we must assume, an unpromising future." THE SHERIFF,
SUpra note 45, at 8. See also JACK L GOLDSMITH & ERIC A. POSNER, THE LIMITS OF INTERNA-
TIONA1 Law 21 1-15 (20(
A useful starting point for a common goal is secure, accessible and environmentally
sound seas. lor a discussion of the "thousand-ship navy" concept, see Christopher P. Caval, The
Thousand-Ship Saw, ARMED FORCES JOURNAL, Dec. 2006, at 26, available at http://www
.armedforcesjournal.com/2006/12 2336959.
26
Craig H. Allen
59. Smaller, regional navies often embrace Professor Till's concept of good order at sea.
Some remark that there are no longer any wars to be won, only order to be secured. See
Geoffrey Till, Seapower: A Guide for the Twenty-First Century (2004). See also Rich-
ard Hill, Maritime Strategy for Medium Powers (1986).
60. Abraham Maslow, A Theory of Human Motivation, 50 PSYCHOLOGICAL REVIEW 370
(1943), available at http://psychclassics.yorku.ca/Maslow/motivation.htm.
61. THE SHERIFF, supra note 45, at 3.
62. But we should not fall prey to what some call the "perfect" regime paradigm, by which we
assume that the present regime is complete and perfect and that new threats, challenges and op-
portunities can all be addressed by merely reinterpreting the existing regime. See Harry P.
Monaghan, Our Perfect Constitution, 56 NEW YORK UNIVERSITY LAW REVIEW 353 ( 1 98 1 ). To do
so stifles rulemaking, substituting judges and academics for legislators. We would do well to con-
sider the merits of one critic who suggested that the UN Charter system is only clear in its appli-
cation where no State does anything. Perhaps it is asking too much to expect clarity from
resolutions vetted through fifteen members of the Security Council. But the lack of clarity gives
rise to the temptation for clever interpretations of UN Security Council resolutions or of Article
51 of the Charter.
63. Thomas Hobbes, THE LEVIATHAN (1651), republished as THE LEVIATHAN: WITH SE-
LECTED Variants from the LATIN EDITION OF 1668 ch. 17, para. 2 (Edwin Curley ed., 1994).
64. Future US security strategies will almost surely say a good deal more than the past ones
about the tension between State sovereignty and international law and organizations. Many see
the relationship between the two as a zero-sum game: every gain in international law or in an in-
ternational organization's power necessarily means there must be an offsetting loss of State sov-
ereignty. See, e.g., JEREMY A. RABKIN, LAW WITHOUT NATIONS? WHY CONSTITUTIONAL
Government Requires Sovereign States (2005). Others see synergistic possibilities. See, e.g.,
Stephen D. Krasner, Sovereignty: Organized Hypocrisy (1999). A bold maritime strategy
might start this conversation now in the expectation that it will bear fruit in 2009 with the new
administration, perhaps even leading the way.
65. The diplomatic-ideological-military-economic force formulation by Professors
McDougal and Feliciano in 1961 was plainly focused on State actors. See MYRES S. McDOUGAL
& Florentino P. Feliciano, Law and Minimum World Public Order 28-33 (1961).
66. The Commander's Handbook includes "judicial" powers in its consideration of nonmil-
itary measures. US Navy, US Marine Corps & US Coast Guard, NWP 1-14M/MCWP 5-12.1/
COMDTPUB P5800.7A, The Commander's Handbook on the Law of Naval Operations para.
4.2.3 (2007).
67. The President's recent executive order on "national security professional development"
is likely to stimulate and expand those efforts. See Exec. Order No. 13,434, 72 Fed. Reg. 28583
(May 17, 2007).
68. Will the US maritime security forces operate with local law enforcement authorities? If
so, legal interoperability and Posse Comitatus Act/DoD Directive 5525.5 issues must be consid-
ered. Some thought the DoD and the US Navy might want to revisit their role in law enforcement
operations outside the United States. See Mark E. Rosen, Center for Naval Analyses, USN-USCG
Integration, CNA Rep. CIM D0015579.A4/1 Rev. (Feb. 2007). For example, should the pres-
ent authority of "public vessels" (including US Navy vessels) to enforce laws against piracy
(33 US Code sec. 381-82) be expanded to include enforcement of the Convention for the
Suppression of Unlawful Acts Against the Safety of Maritime Navigation, Mar. 10, 1988,
1678 U.N.T.S. 201 and the Protocol of 2005 to the Convention for the Suppression of Unlaw-
ful Acts Against the Safety of Maritime Navigation, Oct. 14, 2005, IMO Doc. LEG/CONF., 15/21,
27
The Influence of Law on Sea Power Doctrines
available at http://www.austlii.edu.aU//cgi-bin/disp.pl/au/other/dfat/treaties/notinforce/2005/
30.html?query=suppression%20of%20unlawful%20acts (which now extends to additional acts
of maritime terrorism and transport of WMD)? The author has been informed that the Navy re-
jected the idea.
69. Who could imagine that Russian President and former KGB officer Vladimir Putin,
speaking to an international forum in Munich in 2007, could (in the minds of some) credibly de-
nounce the United States for its "disdain for basic principles of international law" or argue that
now "nobody can take safety behind the stone wall of international law"? See Charles Kraut-
hammer, The Putin Doctrine, WASHINGTON POST, Feb. 1 6, 2007, at A23, available at http://www
.washingtonpost.com/wp-dyn/content/article/2007/02/ 1 5/AR200702 1 50 1 282.html; Thomas L.
Friedman, Putin Pushes Back, NEW YORK TIMES, Feb. 14, 2007, at A27, available at http://select
.nytimes.com/2007/02/ 14/opinion/14friedman.html?_r=l&oref=sloginvailable.
70. As Admiral Mullen described the Global Fleet Station concept, "The idea is to forward
deploy, where invited, ... a fleet of shallow-draft ships and support vessels ... in green and brown
water." Mullen, supra note 7 (emphasis added).
71. Twenty-five chiefs of navies from around the world offer their views on the 1,000-ship
concept in The Commanders Respond, US NAVAL INSTITUTE PROCEEDINGS, Mar. 2006, at 34.
Admiral Mullen has called the 1,000-ship navy "a network of international navies, coast guards,
maritime forces, port operators, commercial shippers and local law enforcement, all working to-
gether." Mike Mullen, Remarks at the Royal United Services Institute for Defence and Security
Studies, Future Maritime Warfare Conference, London, England (Dec. 13, 2005), http://
www.navy.mil/navydata/cno/mullen/speeches/mullen051213.txt. Compare this approach with
James Cable, Gunboat Diplomacy: Political Applications of Limited Naval Force,
1919-1991 (1994) and KEN BOOTH, LAW, FORCE AND DIPLOMACY AT SEA (1985).
72. John G. Morgan Jr. & Charles W. Martoglio, The 1,000-Ship Navy: Global Maritime Net-
work, US Naval Institute Proceedings, Nov. 2005, at 14.
73. The Commanders Respond, supra note 71, at 34.
74. The Commanders Respond, US NAVAL INSTITUTE PROCEEDINGS, Mar. 2007, at 14.
75. AUSTRALIAN MARITIME DOCTRINE - RAN DOCTRINE 1 - 2000 ch. 4 (D.J. Shackleton
ed., 2000), available at http://www.navy.gov.au/spc/amd/amdintro.html.
76. Supra note 13, at 6.
77. The new Joint Publication on Multinational Operations recognizes that " [c] ommanders
must ensure that MNTF forces comply with applicable national and international laws during
the conduct of all military operations." Chairman of the Joint Chiefs of Staff, Joint Publication 3-16,
Multinational Operations, at III-6 (2007). Joint Publication 3- 16 lists law not as an "operational"
consideration in planning and execution, but rather as one of several "general considerations,"
which include, inter alia, rules of engagement, language, culture and sovereignty.
78. In 2006, the United States lost its seat on the International Law Commission (ILC), argu-
ably the world's most important international law codification and progressive development fo-
rum, when its candidate was, for the first time since the ILC's founding, not voted a seat on the
Commission. Those who observed the international and non-governmental organization poli-
tics behind the United States being voted off the UN Human Rights Commission on May 3, 200 1
should not have been surprised.
79. See Daniel Moran, The International Law of the Sea in a Globalized World, in GLOBALIZA-
TION AND MARITIME POWER 22 1 , 236-37 (Sam J. Tangredi ed., 2002). After noting Britain's dif-
ficulties in eradicating slave trading by sea, the author argues that
in matters of international law, practice trumps theory. Or, more precisely, it precedes
it, both logically and for the most part historically, as the developments surveyed in this
28
Craig H. Allen
essay illustrate clearly enough. This deference of theory to practice is not a defect of
international law. On the contrary, it is testimony to its underlying realism and utility.
Yet it does suggest that international law is probably not the place to look for leadership
in solving the problems of the emergent global economy or in addressing the strategic
challenges that have followed in its wake.
80. For example, the 2006 Green Paper on Maritime Strategy for the European Union con-
cludes that
[t]he legal system relating to oceans and seas based on UNCLOS needs to be developed
to face new challenges. The UNCLOS regime for EEZ and international straits makes it
harder for coastal states to exercise jurisdiction over transiting ships, despite the fact
that any pollution incident in these zones presents an imminent risk for them. This
makes it difficult to comply with the general obligations (themselves set up by
UNCLOS) of coastal states, to protect their marine environment against pollution.
European Commission, Towards a Future Maritime Policy for the Union: A European Vision
for the Oceans and Seas 41-42 (2006), available at http://ec.europa.eu/maritimeaffairs/pdf/
com_2006_0275_en_part2.pdf. See also Justin Stares, UN Right to Free Passage under Fire,
LLOYD'S LIST, June 5, 2007, available at http://www.lloydslist.com/ll/news/articleSearch.htm;
then search "Justin Stares UN Right to Free Passage under Fire" (subscription required)
(reporting on European Union discussions to extend coastal State jurisdiction in the exclusive
economic zone to include the transport of illegal migrants).
8 1 . See George V. Galdorisi & Alan G. Kaufman, Military Activities in the Exclusive Economic
Zone: Preventing Uncertainty and Defusing Conflict, 32 CALIFORNIA WESTERN INTERNATIONAL
LAW JOURNAL 253 (2002). When the law of the sea was largely a matter of customary law, Judge
Jessup argued that States could assert jurisdiction beyond their territorial seas in self-defense or
self-preservation. PHILIP C. JESSUP, THE LAW OF TERRITORIAL WATERS AND MARITIME JURIS-
DICTION 96-101 (1927).
82. My use of the term "rule set" begs the important and controversial question "which rule
set?" It is important to keep in mind that, as the Department of State's Legal Advisor John Bellin-
ger highlighted in his address to the 2006 Naval War College International Law Department
Conference, a number of States and non-governmental organizations criticize the United States
for its disregard for "international law" when often the "laws" they are referring to are not bind-
ing on the United States (e.g., the Rome Statute establishing the International Criminal Court,
the Kyoto Protocol, the Ottawa Anti-personnel Landmines Convention and the Additional Pro-
tocols to the 1949 Geneva Conventions). The critics rhetorically conflate a policy choice by the
United States not to become party to a treaty with violations of a treaty to which the United States
is a party. This can present a problem for the strategy drafter who might need to choose his/her
words carefully, to make it clear that the United States will adhere to international law to which it
has consented to be bound. See John B. Bellinger III, International Legal Public Diplomacy, in
Global Legal Challenges: Command of the Commons, Strategic Communications
AND NATURAL DISASTERS 205 (Michael D. Carsten ed., 2007) (Vol. 83, US Naval War College
International Law Studies). See also Policy Coordinating Committee, US National Strategy for
Public Diplomacy and Strategic Communication (2007), available at http://www .state.gov/doc-
uments/organization/87427.pdf.
83. See, e.g., John Pompret, China Ponders New Rules of Unrestricted Warfare, WASHINGTON
POST, Aug. 9, 1999, at 1, quoting Colonel Wang Xiangsui, of the Chinese Air Force: "War has
rules, but those rules were made by the West [I]f you follow those rules, then weak countries
have no chance We are a weak country, so do we need to fight according to your rules? No."
29
The Influence of Law on Sea Power Doctrines
84. The classical approach was the "fleet in being." See Julian Corbett, SOME PRINCIPLES OF
Maritime Stra teg y pt III, ch. Ill (1911).
85. See generally Craig H. Allen, Command of the Commons Boasts: An Invitation to Lawfare?,
in ( -l.OBAL LEGAL CHALLENGES, supra note 82, at 21. Examples might include the Rome Statute
establishing the International Criminal Court, Additional Protocol I to the 1949 Geneva Con-
ventions and the Convention on Anti-personnel Landmines. In the words of Vattel, in interna-
tional law "strength or weakness . . . counts for nothing. A dwarf is as much a man as a giant is; a
small Republic is no less a sovereign state than the most powerful Kingdom." EMERICH DE
Vattel, Droit des gens (1758), quoted in Adam Watson, The Evolution of Interna-
tional Society 203 (1992).
86. Kellogg, supra note 34, at 50.
87. The "New Haven School" policy-oriented jurisprudence developed by Yale Professors
Myres McDougal and Harold Lasswell depicts international law as a process, in which "uses"
produce "effects," some of which are undesired, resulting in "responses," which may include
new rules. MYRES S. MCDOUGAL & HAROLD D. LASSWELL, JURISPRUDENCE FOR A FREE SOCIETY:
Studies in Law, Science and Policy (1992).
88. Some have argued that only the United States has an independent global security strat-
egy. See, e.g., ROBERT COOPER, THE BREAKING OF NATIONS: ORDER AND CHAOS IN THE
Twenty-First Century 45 (2004); LEHMAN, supra note 16, at 135-36 (noting that any US
maritime strategy must be global in concept).
89. John Paul Jones, quoted in BURDICK H. BRITTIN, INTERNATIONAL LAW FOR SEAGOING
OFFICERS 7-8 (5th ed. 1986). The relevant law was collected, reported, analyzed and, in my opin-
ion, shaped by the pioneer Charles H. Stockton in his early books on international law; by Cap-
tain Burdick Brittin in the five editions of his Naval Institute Press books published between 1 956
and 1 986; and by the 1 987 Commander's Handbook on the Law of Naval Operation and the later
Annotated Supplement, which many believe sprang fully footnoted from the cranium of one
Captain Jack Grunawalt (US Navy, retired). The current iteration of the Commander's Hand-
book is cited in note 66.
90. See Department of the Navy, US Navy Regulations art. 0705 (1990). Arguably, the
Army's commitment to a robust operational law program, begun in the 1980s under the leader-
ship of visionaries like Colonel David Graham, went one step further by putting the requirement
to conform to the law into practice through training and wider use of the service's judge advo-
cates. Some now urge that operational law should be included in the Joint Professional Military
Education requirements.
91. For the sake of argument, I will concede that protecting human rights abroad is not
widely viewed as a "vital interest" of the United States; however, we must not overlook how en-
trenched this issue is in our national identity. Strategy must serve the national interests; but it
must also be consistent with the national identity. See William C. Adams, Opinion and Foreign
Policy, FOREIGN SERVICES JOURNAL (May 1984), available at http://www.gwu.edu/~pad/202/
readings/foreign. html. For the United States, that identity begins with a reminder that we are the
world's oldest constitutional democracy.
92. Supra note 13.
93. See ROGER W. BARNETT, ASYMMETRICAL WARFARE: TODAY'S CHALLENGE TO U.S. MIL-
ITARY POWER ch 3. (2003) (discussing exploitation of legal constraints by asymmetric oppo-
nents).
94. William Butler Yeats, The Second Coming (1920).
95. Paul Kennedy, The Parliament of Man: The Past, present, and Future of
the United nations (2006); annf-Makii si aughtfr, The new world order (2004).
30
Craig H.Allen
Professor Kennedy opens his book with Alfred Lord Tennyson's 1837 poem Locksley Hall,
which accurately reflects the modern/postmodern view.
96. Alexis de Tocqueville, Democracy in America (1835).
97. The author is indebted to the late Judge William L. Dwyer (US District Court for the
Western District of Washington) for the allusion to Yeats and the suggestion that the law can
serve as our "centre."
98. Deputy Secretary of Defense, Memorandum for the Executive Secretary, National Secu-
rity Council, Treaty Priority List (Feb. 7, 2007) (copy of letter and FOUO attachment on file with
the author). See also Department of Defense, National Security and the Convention on the Law
oftheSea(2ded. 1996).
99. Letter of Stephen J. Hadley, Assistant to the President for National Security Affairs, to
Senate Foreign Relations Committee Chairman Joseph Biden (Feb. 8, 2007) (copy on file with
the author).
100. See The White House, President's Statement on Advancing U.S. Interests in the World's
Oceans (May 15, 2007), available at http://www.whitehouse.gov/news/releases/2007/05/
20070515-2.html.
101. John D. Negroponte & Gordon England, Reap the Bounty, WASHINGTON TIMES, June
16, 2007, at 17.
102. See, e.g., Testimony of Hon. Donald C. Winter, Secretary of the Navy; Admiral Michael
G. Mullen, Chief of Naval Operations; and General James T. Conway, Commandant of the Ma-
rine Corps, to the House Armed Services Committee on the Fiscal Year 2008 National Defense
Budget Request from the Department of the Navy (Mar. 1, 2007), http://armedservices
.house.gov/hearing_information.shtml.
1 03 . Statement by Admiral Thad Allen, Commandant of the Coast Guard, on the Convention
on the Law of the Sea (May 17, 2007), https://www.piersystem.com/go/doc/786/156912/.
104. See JOHN F. MURPHY, THE UNITED STATES AND THE RULE OF LAW IN INTERNATIONAL
AFFAIRS 240-45 (2004) (analyzing the arguments for and against US accession and the prospects
for success); Congressional Research Service, The Law of the Sea Convention and U.S. Policy
(updated Jan. 27, 2006), CRS No. IB95010.
105. See A.V. Lowe, The Commander 's Handbook on the Law of Naval Operations and the Con-
temporary Law of the Sea, in THE LAW OF NAVAL OPERATIONS 109, 1 1 1 (Horace B. Robertson Jr.
ed., 1991) (Vol. 64, US Naval War College International Law Studies). In discussing evolution of
the law governing maritime baselines, Professor Lowe was likely thinking of Article 31(3) of the
Vienna Convention on the Law of Treaties, May 23, 1969, 1 155 U.N.T.S. 331.
31
II
Conditions on Entry of Foreign-Flag Vessels
into US Ports to Promote Maritime Security
William D. Baumgartner and John T. Oliver*
Executive Summary
One of the most important engines driving global economic development
and progress in recent years is the freedom to engage in seaborne trade
throughout the world. Relatively unhindered access to the world's ports is a vitally
important component of the recent story of global economic success. At the same
time, the grave threats that international terrorists and rogue States pose to global
order give rise to overriding maritime security concerns among port States, factors
which argue strongly against a maritime open-door policy. Other vital concerns,
including illegal immigration, drug trafficking, unsafe oil tankers, illegal fishing
and other threats to the marine environment, and violation of customs and trade
laws, are also prompting port States to take actions that impose conditions on port
entry, to exercise greater jurisdiction in port and even to restrict traditional free-
doms of navigation in coastal waters.
As a general rule, international law presumes that the ports of every State should
be open to all commercial vessels. However, if a State considers that one or more
important interests require closure, necessitate imposing conditions on entry or
exit, or dictate the exercise of greater jurisdiction over foreign vessels in port,
* Rear Admiral William D. Baumgartner, US Coast Guard and Captain John T. Oliver, JAGC,
United States Navy (Ret.).
Conditions on Entry of Foreign-Flag Vessels into US Ports
international law generally permits the port State to do so. A port State may restrict
the port entry of all foreign vessels, subject only to any rights of entry clearly
granted under an applicable treaty and those vessels in distress due to force majeure.
At the same time, international law presumes that the port State will restrict access
to foreign commercial vessels or impose sanctions upon those that enter port, even
those designed to promote important maritime goals, which are reasonably related
to ensuring the safe, secure and appropriate entry or departure of the vessel on the
occasion in question.
As a fundamental policy goal, all States must cooperate to develop and imple-
ment efficient and effective conditions on port entry to ensure the security of the
port State and the international commercial system. Unreasonably restrictive con-
ditions would have a deleterious effect on global trade and the world's economy.
Ineffective conditions on entry, such as faulty procedures to screen ships and their
cargoes, could result in a security breakdown and a devastating terrorist attack on a
port city. Such a disaster would render virtually inconsequential the debate over re-
strictions on port entry to achieve political, environmental, navigational safety, law
enforcement or other worthwhile goals. Even so, international lawyers and policy-
makers in the United States and elsewhere must seek to ensure that access to the
ports of the world is fundamentally free, and restricted only on conditions directly,
effectively and reasonably related to the significant interests of the port State and
the world community at large.
This article discusses general principles of international and domestic law gov-
erning the condition of port entry as a basis for regulating foreign vessels entering
ports, with an emphasis on maritime security. It also considers the policy conse-
quences of imposing legally permissible restrictions or requirements that could
have the practical effect of infringing unreasonably on maritime commerce, or
which would lead to concerns in the international community and which might re-
sult in diplomatic protests and political objections. The goal of the article is to de-
velop an analytical structure that would encourage a rational review of any
proposed conditions on entry to ports to help ensure that any such requirements
are legal, acceptable, reasonable and wise. In a post-9/11 world that remains de-
pendent on international trade for economic prosperity, achieving an effective,
balanced, legal and workable port-entry regime is a vitally important goal.
/. Introduction and Competing Policy Interests
As a general rule, international law presumes that the ports of every State should be
open to all commercial vessels seeking to call on them. As Professors McDougal
and Burke observed forty-five years ago: "The chief function of ports for the coastal
34
William D. Baumgartner and John T. Oliver
state is in provision of cheap and easy access to the oceans and to the rest of the
world [T]he availability of good harbors . . . remains a priceless national asset."1
Every modern State has a general obligation to engage in commercial intercourse
with other States and, absent an important reason, none should deny foreign com-
mercial vessels reciprocal access to its ports.2
In a much-quoted (yet often- criticized) statement, an arbitral tribunal observed
in the Aramco case in 1958, "According to a great principle of public international
law, the ports of every State must be open to foreign merchant vessels and can only
be closed when the vital interests of the State so require."3 In his widely respected
treatise, Dr. C.J. Colombos wrote that "in time of peace, commercial ports must be
left open to international traffic," and that the "liberty of access to ports granted to
foreign vessels implies their right to load and unload their cargoes; embark and dis-
embark their passengers."4 The Third Restatement of the Foreign Relations Law of
the United States summarizes the legal principle as follows: "In general, maritime
ports are open to foreign ships on condition of reciprocity, . . . but the coastal State
may temporarily suspend access in exceptional cases for imperative reasons "5
At the same time, each port State has the sovereign right to deny entry and to es-
tablish reasonable conditions related to access to its internal waters, harbors,
roadsteads and ports.6 Indeed, apart from certain pronouncements, there is little
actual support for the broad statement that ports can only be closed for "vital inter-
ests" or "imperative reasons" as a fundamental principle of customary interna-
tional law.7 The 1982 United Nations Convention on the Law of the Sea (1982 LOS
Convention)8 "contains no restriction on the right of a state to establish port entry
requirements . . . ."9 Article 25, entitled "Rights of protection of the coastal State,"
provides: "In the case of ships proceeding to internal waters or a call at a port facil-
ity outside internal waters, the coastal State . . . has the right to take the necessary
steps to prevent any breach of the conditions to which admission of those ships to
internal waters or such a call is subject."10 While the United States signed the "Part XI
Agreement," which incorporates almost all of the 1982 LOS Conventions in 1994,
the United States Senate has not yet ratified or acceded to it. Even so, the United
States has long considered the navigation- related principles contained in the 1982
LOS Convention to reflect customary international law, binding on all States.1 ]
After carefully examining the relevant authorities cited in support of such a
right-of-port-entry principle in the Aramco case, Professor A.V. Lowe concluded
that international law does not so severely restrict the authority of a port State to
close a port or impose conditions on entry.12 He convincingly distinguished be-
tween a right of entry and a. presumption of entry, concluding that "the ports of a
State which are designated for international trade are, in the absence of express
provisions to the contrary made by a port State, presumed to be open to the
35
Conditions on Entry of Foreign-Flag Vessels into US Ports
merchant ships of all States .... [S]uch ports should not be closed to foreign mer-
chant ships except when the peace, good order, or security of the coastal State ne-
cessitates closure."13 Another knowledgeable observer went even further: "There is
a presumption that all ports used for international trade are open to all merchant
vessels, but this is practice only, based upon convenience and commercial interest;
it is not a legal obligation Pursuant to [their sovereignty over their internal wa-
ters], states have absolute control over access to their ports."14 The United States
Supreme Court observed that the internal waters and territorial sea are "subject to
the complete sovereignty of the nation, as much as if they were a part of its land ter-
ritory, and the coastal nation has the privilege even to exclude foreign vessels alto-
gether."15 In another case, the Supreme Court concluded that Congress had "the
power ... to condition access to our ports by foreign-owned vessels upon submis-
sion to any liabilities it may consider good American policy to exact."16
Whether States view port entry as an international obligation or one granted
based on international comity and domestic self-interest, they typically do not un-
dertake to deny entry to their ports without good cause. Before restricting entry to its
ports, a State must have good policy reasons to do so. "Vital interests," "imperative
reasons" or what factors may "necessitat[e] closure" or constitute "good policy" in-
clude such obvious ones as national security or public health. However, acceptable
State practice includes closing a port to enforce an embargo, to sanction hostile be-
havior by another State, to impose a political reprisal17 or to promote other signifi-
cant interests as the port State may determine to be appropriate and necessary.18
There is a good deal of foreign State practice supporting the imposition of a
broad spectrum of conditions governing port entry and the exercise of jurisdiction
in port.19 Today, there is general agreement "that the coastal state has full authority
over access to ports and is competent to exercise it, virtually at will, to exclude entry
by foreign vessels."20 Among appropriate entry conditions are complying with pi-
lotage requirements, obeying traffic separation schemes and paying customs duties.
Port States have even greater rights to limit or control entry with respect to certain
categories of vessels, such as warships, nuclear-powered vessels, fishing boats and
recreational craft. Absent agreement between the States concerned, foreign war-
ships have no general expectation of being permitted entry 21 and must request per-
mission to make a port call in each case.22 International law also permits port States
to deny or condition entry as they see fit to foreign-flag fishing boats23 and private
recreational craft.24 Some port States may consider that the domestic political costs
of approving nuclear-powered or -armed vessels entry to their waters are too
high,25 while granting port entry to warships, fishing vessels and private recre-
ational craft does not promote the overriding interests of the port State in interna-
tional trade that foreign-flag commercial vessels directly serve.
36
William D. Baumgartner and John T. Oliver
Just as there is a presumption that a port State may not properly bar a foreign
commercial vessel from entry into its ports absent adequate justification, the af-
fected flag State and the international community would view with concern the
imposition of unreasonable, arbitrary or discriminatory requirements for access.26
"It is . . . possible that closures or conditions of entry which are patently unreason-
able or discriminatory might be held to amount to an abus de droit, for which the
coastal State might be internationally responsible even if there was no right of entry
to the port."27 However, both conventional and customary international law per-
mit a State to impose reasonable restrictions on port entry.28 The possible condi-
tions on entry run from those historically designed to ensure that vessel and crew
are free from infectious diseases, and that customs duties have or will be paid, to
provisions ensuring that promises to use the services of a pilot when entering or exiting
port, and to moor or anchor as directed, are kept. These also include those security-
related concerns so important in a post-9/1 1 world, such as submission of passen-
ger and crew lists and cargo manifests, and a willingness to wait beyond the limits
of the territorial sea until an inspection of the vessel with radiation monitoring
equipment can be completed.29
Of course, under the fundamental international legal principle of pacta sunt
servanda, nation-States must comply with international agreements to which they
are party. Hundreds of bilateral friendship, commerce and navigation (FCN) trea-
ties govern the circumstances under which those party to the agreements permit
port entry to the other.30 Such FCN treaties confirm the general presumption that
ports will be open and unrestricted by unreasonable conditions. Whether these bi-
lateral FCN or "most-favored-nation" treaties concerning commerce and naviga-
tion reflect customary international law or may have helped established a rule of
customary law, there is a general expectancy that, when entered into, commercial
vessels of either party will be able to trade with any foreign port, and will need to
comply only with standard and necessary port entry conditions and expectations.31
Here again, international practice is to exclude warships and fishing vessels from
the general presumption of entry.32 Whether at sea or in port, warships and other
sovereign immune vessels are subject only to the enforcement jurisdiction of the
flag State.33 If a sovereign immune vessel engages in an activity in violation of the
law of the port State, local authorities may direct that the vessel leave immediately
and may seek damages through diplomatic channels resulting from the actions of
foreign sovereign immune vessels.34
Although a port State has a right to condition entry to its ports based on a broad
spectrum of concerns, any such restrictions entail costs. The costs include those di-
rectly involved in administering the conditions, from processing the paperwork to
conducting any ship inspections that may be necessary. Such direct costs may be
37
Conditions on Entry of Foreign-Flag Vessels into US Ports
fully or partially offset with appropriate port-entry, pilotage, mooring or anchor-
age fees. But the most significant burden entails the economic, political and other
costs involved in slowing, complicating or otherwise interfering with the smooth
and efficient flow of international trade. Whether a nation's port-entry scheme re-
quires a merchant vessel to wait outside port until it receives clearance, embarks a
pilot or agrees to submit to a search, or imposes such an extensive planning, in-
spection or reporting system on shipping companies or ship masters that it is no
longer attractive to do business with a certain nation or port, any such conditions
on port entry make international trade more time-consuming, difficult and costly.
The 1965 Convention on Facilitation of International Maritime Traffic, modeled
on earlier international efforts to improve international air traffic, emphasizes the
importance of simplifying and reducing to a minimum the administrative burdens
imposed on international shipping "to facilitate and expedite international mari-
time traffic "35 International legal principles also expect that port States will ex-
tend "equality of treatment" to prohibit discrimination in all rules governing port
entry and conditions and procedures applied to foreign commercial vessels.36
Given the crucial importance of international trade in today's global economy,
the cumulative impact of incremental costs, short delays or minor disruptions can
have a profoundly adverse impact. In this regard, harmonizing and coordinating
conditions on port entry throughout the world community, with similar expecta-
tions, requirements, forms and procedures, can achieve the desired goals without
imposing as much of an administrative burden. Wisely balancing the benefits to be
achieved from imposing conditions on port entry, such as intelligently devised se-
curity requirements, against the costs and burdens associated with each is essential.
As one commentator observed, with respect to the broader efforts to protect the
nation's security against potential terrorist attacks, "Ultimately, getting homeland
security right is not about constructing barricades to fend off terrorists. It is, or
should be, about identifying and taking the steps necessary to allow the United
States to remain an open, prosperous, free, and globally engaged society."37 Pro-
moting relatively unrestricted oceangoing trade is essential to the continued eco-
nomic vitality of the world. As Dr. James Carafano, senior fellow for National
Security and Homeland Security at the Heritage Foundation, observed: "Global
commerce is the single greatest engine in economic growth and it's the single most
important thing that raises the standard of living for every human being on the
planet."38 The goal of policymakers and the attorneys and other subject-matter ex-
perts who advise them must be to find an appropriate balance that fosters effective
and workable limitations on port entry directly related to promoting the important
goals to be achieved, while avoiding unnecessarily burdensome restrictions and
procedures thai merely hamper free international navigation and trade.
38
William D. Baumgartner and John T. Oliver
II. Historical Background, Contemporary Context and Analytical Structure
A. Historical Background
Seaborne commerce has been a vitally important part of the world's economy ever
since mankind began to engage in substantial trade with his neighbor. Portuguese,
Chinese, Arabian, Indian, Italian, Dutch, Spanish and English ships competed with
each other over the centuries to dominate key trade routes and control the supply
of commodities and other valuable goods. Global maritime trade has been a vital
component in stimulating international relationships and economic growth. In-
deed, perhaps the most impressive structural development in the history of world
growth and development has been oceangoing trade. Particularly for goods carried
in quantity or bulk, water transportation has long been cheaper and more efficient
and — until the advent of railways, modern highways and trucks, and airplanes —
usually a good deal faster than the alternative transportation modalities.
At the same time, history has demonstrated the risks associated with maritime
activities. Too often, the crews of seagoing vessels were engaged in activities less be-
nign than mutually beneficial, arm's-length trading. Pirates and privateers
wreaked havoc on ships engaged in peaceful trade. Coastal raiders, such as the Hit-
tites in the twelfth century BC, and Vikings around the tenth century AD, ravaged
shipping, ports and peoples. Vicious oceangoing criminals have preyed on those
weaker than themselves along the coasts of Africa and Southeast Asia for thousands
of years. Powerful maritime States engaged in the conquest of foreign lands and
monopolization of vital shipping lanes and key trading ports and nations. From
seaborne attacks against ports in the Mediterranean to the surprise attack on Pearl
Harbor, States have sought to exploit coastal waters to wage aggressive warfare.
History has demonstrated that the tremendous benefits of international ocean
commerce must be balanced against the potential risks. Even so, while the history
of international ocean trade no doubt has demonstrated the potential for adverse
activities and consequences, including imperialism, colonization, conflict, piracy
and maritime terrorism, seaborne commerce has long been a vital component in
promoting global economic growth and improving living conditions worldwide.39
B. Contemporary Context
Nothing in history rivals the scale on which the world community trades by sea to-
day. Moreover, world trade has been growing at 6-10 percent each year.40 Ocean
commerce will no doubt become increasingly vital in years to come. Some 95 per-
cent of the world's trade today is dependent on maritime commerce. If it were not
for ocean transport of key commodities, such as oil and natural gas, cereal grains,
such as wheat and rice, and construction materials, many of the world's peoples
39
Conditions on Entry of Foreign-Flag Vessels into US Ports
would not have power for their transportation and electrical systems, food for their
tables or homes for their families. Increasingly, international trade has focused on
high-value items, such as automobiles, televisions, furniture and expensive enter-
tainment systems. Specially constructed roll-on, roll-off vehicle carriers and con-
tainer ships carrying thousands of interchangeable sealed containers transport
cargoes worth hundreds of millions of dollars. Often, the value of the cargo far ex-
ceeds the value of the ship. The nations of Asia, in particular Japan, South Korea,
Thailand, Singapore, India and, increasingly, China (via modern port facilities in
Hong Kong and, increasingly, on the mainland), dominate high-value ocean
trade.41 These States use a good portion of the profits from this trade to purchase
oil and natural gas from the energy-rich Middle East, Indonesian archipelago, and
parts of western Africa. Supertankers transport huge amounts of oil and liquefied
natural gas (LNG) tankers carry tremendous volumes of natural gas through re-
stricted waters of southeastern Asia to the vibrant, but energy-dependent, econo-
mies of North and South America, Europe, and South and East Asia.
Despite the tremendous worldwide economic growth exemplified by China, In-
dia, Brazil and several other developing States, the American economy remains, by
far, the largest and most dynamic in the world. It would be difficult to exaggerate
the importance of the maritime transportation component to this nation's econ-
omy. When measured by volume, more than 95 percent of international trade that
enters or leaves this country does so through the nation's ports and inland water-
ways.42 In 2004, US ports handled almost twenty million multimodal shipping
containers.43 Container ships, which account for only eleven percent of the annual
tonnage of waterborne overseas trade, account for two-thirds of the value of that
trade. Several of the 326 or so seagoing ports in the United States, including Los
Angeles/Long Beach, New York, Houston, San Francisco and Baltimore, are
among the busiest in the world in one or more categories.44 In excess of two billion
tons of domestic and international commerce now are carried on the water, creat-
ing more than thirteen million jobs and contributing more than $742 billion to the
gross national product.45 Multimodal freight transportation accounts for nearly 15
percent of services the United States trades internationally. Each year, some 7,500
vessels flying foreign flags make 51,000 calls in US ports.46
Energy is also a critical and growing import into the United States. Large Ameri-
can owned and/or operated tankers carry oil from Valdez, Alaska to terminals
and refineries on the West Coast. But a much larger volume of oil is imported into
ports on the Gulf Coast from Mexico, Venezuela, Nigeria and the Middle East.47
Increasingly, huge liquefied natural gas tankers call on US terminals to meet the
tremendous and increasing American appetite for natural gas.48 Presently, there
are only six LNG terminals in the United States, but there are plans under way to
40
William D. Baumgartner and John T. Oliver
build dozens more.49 Because the volume of international trade is expected to double
by 2020, and because the maritime transportation system is the nation's best means
of accommodating that growth, experts expect that the importance of seaports in the
US economy will continue to grow dramatically over the coming years.50
While trade has grown dramatically, the potential national security risks are also
far greater and more complex today than they have ever been in the past. To illus-
trate, in December, 1941, the Empire of Japan assembled a fleet consisting of six
aircraft carriers, thousands of men, hundreds of aircraft and scores of supporting
vessels (including submarines and mini-subs) to attack the US Navy and Army in-
frastructure at Pearl Harbor, Hawaii. This surprise attack killed some 2,403 service
members and sixty-eight civilians, seriously damaged or destroyed twelve warships
and 188 aircraft, caused hundreds of millions of dollars in damages to infrastruc-
ture, and plunged the United States into the Second World War.51 Nearly sixty
years later, a mere fifteen Al-Qaeda terrorists hijacked four civilian airliners and
caused the death of nearly three thousand innocent civilians and wreaked incalcu-
lable financial costs by intentionally crashing three of the aircraft into the World
Trade Center towers and Pentagon. As a result, the United States is now engaged in
a "global war on terrorism" (GWOT), with hundreds of thousands of casualties
and hundreds of billions of dollars in costs.52
Even this level of death and destruction would pale compared to the potential
numbers of casualties, and the hundreds of billions of dollars in potential destruc-
tion and disruption of global trade, were a nuclear device, "dirty bomb" or other
weapon of mass destruction to explode in a major port city, such as Long Beach or
Baltimore.53 Experts fear that terrorists could hide such a device in one of the many
thousands of ubiquitous shipping containers imported into the United States every
day.54 Other scenarios, such as the possibility that terrorists would hijack an LNG
carrier and detonate the cargo in a populated or industrial area, could also result in
devastating destruction.55 Assuming a rational and effective connection between
restrictions on port entry and efforts to prevent such a disaster, a port State could
condition port entry on compliance with virtually any set of maritime security
measures consistent with international law. Likewise, port States could exert juris-
diction over foreign-flag vessels voluntarily in port, other than sovereign immune
vessels, to carry out virtually any rational and effective security measure.
On the other hand, policy experts would argue that handcuffing international
trade with irrational, excessive and ineffective restrictions would be counterpro-
ductive— enormously disruptive, hugely expensive and fundamentally unwise.56
Moreover, if the United States were to adopt a policy to conduct wide-ranging, in-
trusive security raids on board foreign-flag vessels voluntarily present in US ports,
such heavy-handed tactics would likely prompt international censure and, to some
41
Conditions on Entry of Foreign-Flag Vessels into US Ports
extent, discourage trade. For national concerns of somewhat lesser magnitude,
such as to prevent customs violations or the importation of illegal drugs, the impo-
sition of intrusive pre-entry requirements, while legal, should also be directly and
reasonably related to the goals to be accomplished.
C. Analytical Structure
In evaluating the legal principles governing the right of port States to impose condi-
tions on port entry to promote maritime security, this article will consider various
factors. It will analyze the nature of the underlying activity, beginning with the most
long-standing ones that are directly related to the vessel's visit to the particular port,
and proceeding through those which have only recently been considered as condi-
tions for restricting port entry, such as requiring other flag States to cooperate in the
global war on terrorism. The more traditional, commonly required and obvious the
condition on port entry, the more likely it will meet standards of international law,
and also the more likely it will be widely regarded as prudent and necessary.
After analyzing the question of jurisdiction and the various types of underlying
activities, we will next consider the nature of the conditions to be imposed, from
something as unobtrusive as requiring the vessel to notify port authorities of its ar-
rival, to a requirement to provide a list of the names and nationalities of all passen-
gers and crew members, to submitting to an offshore inspection, to outright denial of
entry to the port. The conditions may extend beyond the immediate visit of the vessel
to the port State and include activities of the vessel on other occasions, of other ships
of that shipping company or even of other vessels of that flag State.
Finally, we will consider a list of relevant questions that a port State and the in-
ternational community should ask with respect to any proposed condition regulat-
ing entry into a port to ensure that it is reasonable and necessary. The questions
deal with a variety of factors, ranging from the importance of the goal the regula-
tory scheme is designed to achieve, to the geographical and temporal nexus be-
tween the vessel and the port State, to the effectiveness of the proposed regulation,
to the impact of the regulation on freedom of navigation and existing treaty obliga-
tions. The goal of this article is to develop and consider objective criteria to evalu-
ate the legality and wisdom of conditions on port entry.
///. Conditions on Entry Directly Related to the Vessel's Port Visit
A. Port Security
1 1 istorically, as well as presently, the most vital single concern that a port State has
had with respect to one or more foreign vessels entering its ports and internal wa-
ters involves its own security. As the United States Supreme Court has expressed it,
42
William D. Baumgartner and John T. Oliver
"[I]t is 'obvious and unarguable' that no governmental interest is more compelling
than the security of the Nation."57 As the English, Irish and French lookouts and
private citizens stared awestruck out to sea in the years around the turn of the first
millennium, they did not wonder whether the dozen or so longboats manned by
Viking warriors they observed rowing into their ports or up their rivers were com-
ing to engage in peaceful and productive trade. Instead, they were convinced, based
on dreadful experience, that these Vikings were hell-bent on raiding their port vil-
lages, pillaging their riches, and abusing and murdering the inhabitants. In short,
the security of their homeland was in peril.
For what good it might do, a port or nation obviously has always had the right to
prohibit the entry of any vessel determined to inflict death and destruction upon it.
In like manner, the port State could mandate a requirement that the pirate ship or
foreign-flag raider disarm itself before entering, or sign a promise that no member
of the crew would engage in any violent or illegal activities while in port. The prob-
lem was that, when faced with marauding Chinese pirates, Phoenician raiders or
Vikings, the denizens of the beleaguered coastal port usually did not have the re-
sources to insist on anything of the sort. Instead, the security forces and inhabitants
could only run deep into the forest, row or sail further up the river, or climb the
nearest mountainside, hoping that the raiders would not find the treasure hidden
in the well or overtake and murder them as they fled.
Of course, pirates and other maritime raiders no longer represent a direct threat
to Los Angeles, Lisbon or Sydney. Nonetheless, in the wake of 9/1 1, national secu-
rity concerns remain paramount throughout the world. Experts conclude that the
greatest single security risk to America and its allies today is a surreptitious terrorist
attack on, or byway of, port cities using nuclear weapons.58 To prevent the massive
number of innocent deaths, physical destruction and financial disruption that this
would entail,59 a port State may legally do almost anything reasonably necessary to
protect against such a threat. This article will discuss in detail the various possibili-
ties of how far a port State may go to ensure port security during times of war or to
protect against actual or potential threats to national security, such as from possi-
ble terrorist attacks.60 Before doing so, however, we will first analyze the traditional
requirements for port entry properly demanded of bona fide commercial vessels to
comply with domestic laws to ensure good order and to protect the legitimate in-
terests of the port State.
B. Fiscal, Immigration, Sanitation and Customs Laws and Regulations
Beyond seeking to ensure the security of the port State, the most long-standing,
traditional requirements attendant to a commercial vessel entering a foreign port
facility are those that pertain to compliance with port State laws involving fiscal,
43
Conditions on Entry of Foreign-Flag Vessels into US Ports
immigration, sanitation and customs (FISC) matters. From the time that the city
fathers of Venice imposed import taxes on the foreign merchants seeking entry to
trade their spices or other exotic wares, or the authorities of Tokyo required foreign
ships to comply with domestic laws related to sanitation, health and immigration,
coastal States have exacted financial requirements and imposed requirements to
ensure that their citizens benefited from seaborne trade, rather than suffered ad-
verse consequences.
All States today agree with the basic principle that a port State may condition a
foreign ship's entry to port upon compliance with laws and regulations governing
"the conduct of the business of the port . . . provided that these measures comply
with the principle of equality of treatment" among foreign-flag vessels.61 In the
United States, Congress has provided for a regulatory scheme related to each FISC-
related requirement, including port clearance and entry procedures,62 payment of
tonnage and customs duties,63 restrictions on immigration,64 and sanitation and
health regulations.65 No one doubts the legal authority for, indeed the necessity of,
denying entry of a foreign ship to a port if passengers or members of the crew on
board carry a serious infectious disease, such as tuberculosis or the plague.66 Like-
wise, a port State may take necessary and effective steps, such as requiring that a local
public health official first visit the vessel to confirm that the crew and passengers
are all free of infectious disease, before granting port entry.67 International law
grants to port States the right to take necessary and appropriate actions to prevent
the entry into the port of stowaways, absconders, deserters or other illegal immi-
grants.68 Among those is the right to inquire as to nationality, demand to see each
passport or other identifying document and determine the status and intentions of
crew members and passengers.
For many years, each port State established its own paperwork and procedural
requirements for foreign vessels to complete and submit. As international trade be-
came more universal and essential, the hundreds of different procedural require-
ments and forms became burdensome, particularly where the failure to complete a
particular document in a particular way caused the responsible bureaucrat to deny
or delay port entry, or to delay departure. In some ports, a customs official would
"overlook" a missing document or "assist" a master in filling out the required
forms properly in exchange for an under-the-table payment. Even where no bribes
or other chicanery was involved, the cost, confusion and delay inherent in comply-
ing with varying local laws and completing a plethora of different documents were
considerable.
To help ameliorate the problem of burdensome forms and differing port-entry
requirements, the 1965 London Convention on the Facilitation of International
Maritime Traffic (FAL) established standard practices with respect to documents
44
William D. Baumgartner and John T. Oliver
and procedures that a port State may require a foreign vessel to submit prior to or
upon port entrance.69 Because it makes so much practical sense, the international
community has embraced the Convention.70 In implementing the FAL Conven-
tion to promote maritime efficiency, the International Maritime Organization
(IMO) has developed recommended practices and prepared several standardized
documents for port States to use.71 Near universal agreement with what a port State
could impose with respect to fiscal, immigration, sanitation and customs require-
ments, and standard forms and procedures, has greatly improved compliance and
promoted international trade. While a port State not party to the FAL Convention
could legally deviate from the IMO FISC-related standards as a condition for port
entry, to do so would be self-defeating. No State wants to discourage international
seaborne trade or, without good reason, increase the costs and delays associated
with it. As a result, virtually all port States, whether or not party to the FAL Con-
vention, use the standardized forms and follow the prescribed procedures.
C. Navigation, Pilotage and Mooring and Anchorage Requirements
Port States have also traditionally imposed on visiting vessels the obligation to
comply with requirements designed to ensure safe navigation within their internal
waters and the operational efficiency of their ports. As Professors Myres McDougal
and William Burke observed:72
Once vessels enter internal waters and are within state territory, states claim sole
competence to prescribe for activities relating to the use of the waters. In the port, for
example, coastal states claim authority to regulate the myriad activities connected with
port operation such as the movement and anchorage of vessels . . . , assignments of
berths, and numerous other events directly affecting the use of the area.
Applicable requirements range from rules mandating use of a pilot — often de-
pending on the size of the vessel, its cargo, horsepower of its plant, and conditions
of weather or tide — to manning and equipment expectations, to requirements as
to where the vessel must anchor or moor. To have access to ports, all merchant ves-
sels must follow the rules.
As a foreign vessel, particularly any large and unwieldy vessel, approaches the
busy and restricted internal waters of a port, authorities of the port State usually re-
quire that a pilot boat meet it several miles from restricted waters. From the pilot
boat emerges an expert mariner, with an intimate knowledge and familiarity about
the waters, currents, shoals, winds and other peculiarities of the port, and who is
comfortable in handling a wide range of merchant vessels in any kind of weather,
tide, traffic, current and light conditions. The United States is one of many port
45
Conditions on Entry of Foreign-Flag Vessels into US Ports
States that condition a foreign vessel's right of entry to its ports upon compliance
with non-discriminatory pilotage laws and regulations.73 In a federal law that
traces its origins to 1789, pilots and the laws concerning the use of pilots to enter US
ports are generally governed by applicable state laws, rather than any federally man-
dated requirements.74 The purpose of pilotage laws is to better ensure that a vessel
can enter and operate within a port safely. The practice of requiring pilots in the
world's major ports and restricted waterways to ensure the safe entry and depar-
ture of larger commercial vessels is increasingly common worldwide. For example,
among other requirements, the People's Republic of China now requires the use of
licensed pilots for all foreign commercial vessels calling on any of its ports.75
Proper port management also requires that port State authorities designate
when, where, how and under what circumstances a vessel can navigate in inland
ports and waterways.76 Anyone who has passed through the Panama Canal can at-
test to the scores of merchant ships "waiting their turn" anchored at either the At-
lantic or Pacific side until such time as the local authorities and a qualified pilot are
ready to take them.77 Managing vessel traffic in the busy, fifty-six-mile-long Hous-
ton Ship Channel is nearly as hectic.78 Without some degree of coordination and
control over vessel operations, the complicated ballet of ships navigating the chan-
nel, anchoring or mooring at the appropriate places, and on-loading and off-loading
cargoes could not be done safely or efficiently. An obvious permissible condition
on port entry is a vessel's willingness to use (and pay for) a qualified pilot and to
follow the rules of the port and directions from the harbor master and other au-
thorities as to when, where and how to proceed. Failure to comply with these re-
quirements means that the vessel would not be permitted to enter port or, once
there, would be subject to enforcement jurisdiction.
D. Ability of the Vessel to Operate Safely
Another significant goal of the port State is to ensure, as a condition of entry, that
vessels entering a port will be able to navigate and operate safely.79 Unsafe vessels
and poorly trained crews present a major threat to the proper operation of a port
facility and the coastal waters nearby. Those include vessels that are unseaworthy
because they were not designed or constructed correctly or do not have proper
equipment; are inadequately maintained; or have an improperly trained, manned
or certified crew. The Transportation Safety Act includes special precautions that a
port State may impose with respect to vessels carrying particularly hazardous ma-
terials, such as a cargo of explosives, radioactive materials or liquefied natural gas.80
Unless the port authorities are convinced that a vessel transporting oil or other
hazardous materials has the ability to enter port, conduct business there and depart
the area safely, they are under no obligation to grant access to their internal waters
46
William D. Baumgartner and John T. Oliver
or ports.81 Moreover, a port State has a right to insist, as a condition of entry, that
the vessel and its crew have demonstrated that they are capable of operating
safely and have no track record of maritime accidents.82 The 1982 LOS Conven-
tion imposes a "duty to detain" on port States which have determined that a foreign-
flag vessel within one of their ports is in violation of applicable international rules
and standards relating to seaworthiness of vessels and thereby threatens damage to
the marine environment.83 Finally, a port State may require, as a condition of en-
try, that the vessel is equipped with the latest IMO-approved safety technology to
avoid collisions and groundings.84
International commerce would come to a virtual halt if the authorities in each
port took it upon themselves to impose unique requirements as to how a ship
should be constructed, equipped, manned, trained and operated. As a result, the
international community has established detailed rules for most aspects of the
construction, equipping, operations, manning and training of merchant vessels
above a certain size. Of all the conventions dealing with maritime safety, the most
important is the 1974 International Convention for the Safety of Life at Sea
(SOLAS), as amended.85 The original version was adopted in 1914 in response to
the sinking of the luxury passenger liner RMS Titanic, and the resulting loss of
more than fifteen hundred lives.86 The latest version of SOLAS was adopted in
1974 and has been amended periodically since then. Under SOLAS, classification
societies carefully survey (inspect) vessels during and immediately after construc-
tion to ensure compliance with international standards for strength, stability,
damage control, safety and equipment. Defects must be corrected prior to satisfac-
torily completing the survey. Only then does the classification society issue a cer-
tificate documenting the conditions under which the vessel may safely operate.
Although flag States have the primary responsibility to ensure ships flying their
flag are properly documented, port States party to the SOLAS Convention have a
duty to "intervene" to prevent a vessel from sailing until the owners and crew cor-
rect any unsafe conditions.87
Another multilateral treaty, the International Convention on Standards of
Training, Certification and Watchkeeping for Seafarers, 1978 (STCW Convention),88
seeks to ensure that the vessel's crew members, particularly the master and the ves-
sel's other officers, complete rigorous training on engineering, watch standing,
ship handling, maintenance, rules of the nautical road, firefighting and damage
control, and other emergency procedures. Only after he or she satisfactorily com-
pletes all aspects of training and demonstrates adequate experience and confi-
dence under instruction is a crew member certified as qualified to serve. A major
revision of the STCW Convention that the IMO completed in 1995 provides an
even greater level of precision and standardization. The 1995 Amendments also
47
Conditions on Entry of Foreign-Flag Vessels into US Ports
enhanced port State control, providing a specific right of intervention and deten-
tion in the case of a collision, grounding or other casualty, or evidence of erratic
ship handling.89
These STCW requirements provide qualification standards and expectations
for seafarers. Ideally, a French master in charge of a supertanker sailing from the
Persian Gulf to Europe and back will have the same high level of qualifications as a
South Korean master on a massive container ship sailing to and from Singapore
and Southern California. Each should be able to safely navigate any vessel in his
charge through any weather or casualty that might arise. The STCW Convention
covers many other matters related to maritime safety, including mandatory crew
rest and periodic recertification. Under US law, no vessel may enter or operate in
the navigable waters of the United States unless such vessel complies with all appli-
cable laws and regulations designed to promote maritime safety.90
From the perspective of the port State, the local authorities have the right to in-
quire whether the vessel's SOLAS certification and documentation are in order,
and if all the crew have their required and up-to-date STCW certificates, prior to
allowing the vessel to enter port.91 Ensuring that a port visit will be completed
safely is an essential port State function, and any requirement reasonably related to
this goal is permissible as a condition on port entry.92 If port State authorities con-
sider it to be essential or helpful to accomplish this purpose, they may direct that
the visiting vessel submit to a boarding to verify the accuracy of the information
provided and, in cases of doubt, to physically check the seaworthiness of the vessel
and qualifications of its crew. Where a pilot is required to be on board, he or she
may not proceed into port unless the appropriate authorities are confident that the
vessel is shipshape in every respect.
The United States Congress recently imposed a safety- related requirement,
which the Coast Guard has begun to implement, that virtually all commercial ves-
sels operating in US navigable waters carry a properly functioning Automatic Iden-
tification System (AIS).93 "AlS-equipped vessels will transmit and receive
navigation information such as vessel identification, position, dimensions, type,
course, speed, navigational status, draft, cargo type, and destination in near real
time."94 AIS can prove essential to avoid collisions and groundings, monitor vessel
traffic flow, and, as discussed below, help identify and track vessels of interest for
security purposes as part of Maritime Domain Awareness (MDA).95 "Once a po-
tential threat has been identified, a port or coastal State must have the capability to
detect, intercept and interdict it using patrol boats or maritime patrol aircraft.
Such action could disrupt planned criminal acts and prevent the eventuality of a
catastrophe before it threatens the port."96 Other safety-related technology that the
United States requires of most commercial and certain other vessels calling on US
48
William D. Baumgartner and John T. Oliver
ports includes IMO-approved electronic position- fixing devices,97 automatic radar
plotting aids98 and emergency communications systems.99
E. Voyage Information
Another area of inquiry that port States usually make of vessels calling on their
ports is that relating to voyage information. One common condition of port entry
is providing a vessel's Notice of Arrival (NO A), including advance information as
to the date and time it expects to reach port. Under current US Coast Guard regula-
tions, modified following 9/11, visiting ships must generally provide NO A infor-
mation ninety-six hours prior to arrival.100 The information required in an NOA is
extensive, including the name of the vessel, flag State, registered owner, operator,
charterer and classification society.101 Other voyage information required is the
names of the last five ports or places visited, dates of arrival and departure, ports
and places in the United States to be visited, the current location of the vessel, tele-
phone contact information, detailed information on the crew and others on board,
operational condition of the essential equipment, cargo declaration and the addi-
tional information required under the International Ship and Port Facility Code
(ISPS Code).102
The vessel must make an additional notice whenever there is a hazardous con-
dition, either on board the vessel or caused by the vessel.103 Failure to do so means
that the vessel will be denied entry and will have to wait outside of the port until
the Coast Guard and other port authorities are satisfied that they can safely clear
the ship.104 Many of the NOA requirements are related to port security concerns.
The ninety-six-hour reporting requirement permits Coast Guard and other au-
thorities time to run the vessel through the appropriate automated databases to
try to identify terrorist threats, suspected involvement in drug trafficking or
trafficking in illegal immigrants, suspicious or hazardous cargo, and any other
special vulnerabilities. By identifying the current flag State, port State authorities
can determine whether the flag State is party to international procedures to re-
duce the risk of a terrorist attack, whether the vessel in question has been
prescreened at its previous port of call and whether there is an applicable agree-
ment permitting at-sea searches. The NOA regime also provides adequate time to
arrange for pilotage and tug escorts and plan for the optimal use of limited port
resources. International law clearly permits port States to require foreign mer-
chant vessels to provide such information directly related to the voyage as a con-
dition of entry, particularly where the IMO has made such requirements
mandatory for all vessels.105
49
Conditions on Entry of Foreign-Flag Vessels into US Ports
IV. Conditions on Entry Related to National Defense, Homeland Security,
Counter terror ism and Law Enforcement Concerns
A. Vessels from Enemy, Hostile, Unfriendly or Rogue States
A port State has an absolute right to deny entry to its ports to foreign warships and
certain other categories of ships it considers threatening.106 Although their sovereign
status gives warships special immunities from enforcement jurisdiction, a port State
is within its rights to require prior authorization, deny entry for any cause or no
cause at all, or condition access, such as limiting the number of warships that may be
in port at any one time, or requiring that the vessel enter and leave port only during
daylight hours.107 Even where there is an FCN treaty granting to each party reciprocal
rights to enter each other's ports, the provisions usually exclude routine entry rights
for "vessels of war."108 Article 13 of the Statute on the International Regime of Mari-
time Ports specifically excludes its application to warships.109 The recognition that
international law gives to port State discretion with respect to providing entry to
warships is due to the special sovereign immune character of warships, the poten-
tial threat that they might represent to the security of the port State and the lack of
reciprocal benefits that accrue to the port State when a merchant vessel engages in
trade. ' 10 As a general rule, therefore, warships must make special arrangements and
obtain prior permission before entering a foreign port.111
The power to deny entry to enemy or potentially hostile vessels is an obvious se-
curity precaution that States have followed for centuries. However, warships are
not the only vessels to which a port State may deny entry for security reasons. In
October 2006, the Japanese government barred all ships from North Korea, includ-
ing commercial vessels and scheduled passenger ferries, from entering any of its
ports due to the "gravest danger" represented by the underground nuclear-weapons
test in that rogue State.112 Australia followed suit, banning all North Korean ships
from entering its ports except in dire emergencies.113 The United States has taken
even broader action against rogue States. In its most recent Maritime Operational
Threat Response Plan, which is published as part of the National Strategy for Mari-
time Security, the US government listed six States as non-entrant countries. The six
presently on the list are Cuba, Iran, Libya, North Korea, Sudan and Syria.114 The
Secretary of Homeland Security is charged with denying entry to all such vessels "to
the internal waters and ports of the United States and, when appropriate, to the ter-
ritorial seas of the United States."115
The right to deny port entry in times of actual or perceived threats to national
security is well established in international law. In the early 1900s, Venezuela
closed its ports to the vessels of a single US shipping company during a period of
revolutionary activity in that nation. The steamship company filed suit before an
50
William D. Baumgartner and John T. Oliver
international arbitral tribunal complaining that the denial of access to Venezuelan
ports was arbitrary and discriminatory, particularly since those same ports re-
mained open to vessels from other companies.116 Venezuela claimed that it had de-
nied port entry to that company's vessels to prevent rebel forces from receiving
support and supplies, and that the steamship company in question was the only
one friendly to the rebels. The umpire found that the prohibition was permissible,
opining that "the right to open and close, as a sovereign on its own territory, certain
harbors, ports or rivers in order to prevent the trespassing of fiscal laws is not and
could not be denied to the Venezuelan Government, much less this right can be de-
nied when used ... in defense of the existence of the Government."117
At the same time, US government officials may not act arbitrarily in denying
port entry, even when based on security concerns. In 1950, President Truman, act-
ing under the authority of the Magnuson Act, 50 US Code sec. 191, issued Execu-
tive Order 10,173, granting to cognizant officials of the US Coast Guard the
authority to deny entry to US ports of foreign -flag vessels, or direct their anchorage
and movement in US waters, as may be "necessary ... to prevent damage or injury
to any vessel or waterfront facility or waters of the United States . . . ."118 In Cana-
dian Transport Co. v. United States, a Canadian corporation brought action against
the United States for damages for the Coast Guard's refusal to permit a merchant
vessel having a Polish master and officers entry to harbor in Norfolk, Virginia, on
the basis that the presence of Communist bloc officers in that sensitive port might
pose a risk to national security.119 The District Court had entered summary judg-
ment against plaintiff for failure to state a claim.120 On appeal, however, the D.C.
Circuit held that "if the Coast Guard officers acted arbitrarily and in violation of
regulations in diverting [the foreign merchant vessel], the United States is not im-
mune from a damage action . . . ."121 The Court returned the case to the District
Court for a factual hearing on that single issue.
B. Denial of or Restrictions on Entry Related to Terrorism Concerns
In recent years, international terrorism has replaced the Cold War and revolution-
ary zeal as the focus of greatest global security concern. Three trends — economic
globalization, diffusion of nuclear weapons technology and well-funded and fanat-
ical terrorism — present an unprecedented security threat to the United States, its
trading partners and the whole world.122 Given these trends, port States must do all
they can to keep foreign merchant ships out of their coastal waters if they represent
any kind of security risk; the stakes are simply too high.123 According to Dr. Ste-
phen Flynn, the current Jeane J. Kirkpatrick Senior Fellow in National Security
Studies at the Council on Foreign Relations and an expert on the risk terrorists
pose to international trade, the essence of the terrorist strategy is global economic
51
Conditions on Entry of Foreign-Flag Vessels into US Ports
havoc: "There is a public safety imperative and a powerful economic case for ad-
vancing international trade security."124 Terrorism experts, and the terrorist orga-
nizations themselves, consider seaports to be particularly susceptible to attack.125
Moreover, the proliferation of nuclear weapons and other weapons of mass de-
struction, and the means to deliver them, dramatically increase the threat. Osama
bin Laden is reported to have described the acquisition of nuclear weapons by Al-
Qaeda as a "religious duty."126 An improvised nuclear weapon or "dirty bomb"
hidden in a shipping container, secreted into a port city and then detonated there
or after it has been loaded on a train or truck and in the transportation network
could cause hundreds of thousands of deaths, hundreds of billions of dollars in de-
struction and incalculable damage to the world's confidence in the global trading
system. To prevent a terrorist attack by means of a weapon of mass destruction is a
top priority, within both the United States and the international community.127
Moreover, traditional containment and deterrence strategies that worked during
the Cold War are no longer likely to succeed against fanatical terrorist groups.128
Appropriate measures to reduce the risk of such an attack include any conditions
on port entry, or outright denial of such entry, designed to detect and deter terror-
ists; nuclear weapons and other instrumentalities of mass destruction; and other
weapons, supplies and materials used by terrorists from entering a port State.
While an attack with a nuclear weapon secreted on a container ship or otherwise
introduced into the transportation system poses the gravest danger to a port State,
a terrorist group could cause catastrophic damage using weapons widely available
to it, such as conventional explosives and rockets. Before 9/11, for example, few
would have guessed that a small group of committed, suicidal terrorists could have
caused so much death and destruction by commandeering civilian jetliners and
crashing them into the World Trade Center and Pentagon.129 Various terrorist cells
are no doubt speculating even now on vulnerabilities in existing port security plans
and developing strategems to try to exploit them.
A port State has the right to deny entry or impose conditions on entry to its ports
when it determines such action to be necessary to protect the port or coastal State
and the security of the population against terrorist or other attacks. Indeed, under
the "vital interests" analysis discussed above, this fundamental principle is self-evi-
dent. Nothing could be more "vital" than defending the homeland against a mas-
sive terrorist attack. Following the terrorist attacks on 9/11, the US Congress
appropriated funds and passed laws, the Department of Homeland Security and
other cognizant agencies implemented new policies and procedures, and airport,
border, coastal, and port security has been strengthened considerably. Even so, ex-
perts agree that much more work needs to be done to make our nation's ports and
borders truly secure and prepared.130
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William D. Baumgartner and John T. Oliver
There is an additional international legal basis for taking action against poten-
tial terrorist attacks — the fundamental right of self-defense. Article 51 of the
United Nations Charter provides: "Nothing in the present Charter shall impair the
inherent right of individual or collective self-defense if an armed attack occurs
against a Member of the United Nations " While the United Nations originally
visualized this provision as applying to defending against armed attacks initiated
by other nation-States, such as Nazi Germany's attack on Poland on September 1,
1939 or the invasion of South Korea by Communist North Korea in June, 1950, it
seems perfectly appropriate to extend the right of self-defense to deter attacks by
subnational terrorist groups, such as Al-Qaeda, in the GWOT. In the United States
today, the emphasis has changed from enforcing the law and responding to attacks,
to anticipating and preventing such attacks.131 International law limits what a nation-
State may do to protect itself against an armed attack by shooting first132 or taking
preemptive military measures beyond its own territory.133 However, that paradigm
maybe changing with respect to preemptive action in anticipation of a terrorist at-
tack. As the White House has argued:
We must adapt the concept of imminent threat to the capabilities and objectives of
today's adversaries. Rogue states and terrorists . . . rely on acts of terror and, potentially,
the use of weapons of mass destruction To forestall or prevent such hostile acts by
our adversaries, the United States will, if necessary, act preemptively.134
In order to better protect the homeland against a terrorist attack, individual
States and the international community must have adequate means to identify
and track weapons, vessels, cargo, passengers and crew, and to take appropriate
action against those that represent a threat. Some of the new programs designed
to improve coastal and port security against potential terrorist attacks include the
(1) Proliferation Security Initiative (PSI), (2) Container Security Initiative (CSI),
(3) Automated Identification System (AIS), (4) Long-Range Identification and
Tracking (LRIT) of Ships, (5) International Port Security Program, and (6) other
initiatives to identify personnel and vessels that pose a security threat to the
United States and its trading partners and to devise and improve processes to de-
tect and deter them.135
One key reason for advancing the requirement of foreign vessels to provide a
Notice of Arrival at least ninety-six hours before they plan to enter a US port is to
ensure adequate time to check the accuracy and veracity of the details the vessel has
provided.136 In the United States, watch standers at the National Vessel Movement
Center (NVMC) monitor the data and evaluate and promulgate possible threats.137
However, the decision to approve or disapprove port entry is left to the discretion
53
Conditions on Entry of Foreign-Flag Vessels into US Ports
of the Coast Guard Captain of the Port (COTP).138 Implementing and improving
processes to identify and track vessels and their cargoes, and to ensure the reliabil-
ity of their crews, will continue to be a key factor in ensuring the security of the
global transportation network in the United States and around the world.139 This
article will now briefly consider several of these initiatives and programs.
(1) Proliferation Security Initiative
For many years, the United States and its allies were justifiably concerned about the
prospect of certain categories of weapons and delivery systems falling into the
hands of terrorists and rogue States. Various initiatives, including the Nuclear
Non-Proliferation Treaty, specifically addressed the concern of proliferation of
nuclear weapons and their delivery systems. The concern that outlaw States or inter-
national terrorists could get their hands on weapons of mass destruction intensi-
fied following the 9/11 terrorist attacks on the World Trade Center and the Penta-
gon. President Bush announced the PSI on May 31, 2003, as a "new effort to fight
proliferation" through international agreements "to search . . . ships carrying sus-
pect cargo to seize illegal weapons or missile technologies."140 The PSI was designed
to help fill in the gap in international law to ban the secretive and dangerous trade in
nuclear weapons, ballistic missiles, other weapons of mass destruction and their de-
livery systems, and component materials.141
The impetus to develop the PSI concept was largely due to the circumstances
surrounding the interdiction of the North Korean freighter So San some six hun-
dred miles off the Yemeni coast, which demonstrated the lack of international legal
tools then available.142 American satellites and Navy ships had tracked the So San
following its departure from North Korea in mid-November 2002. Since the vessel
was not flying a flag and there was intelligence information available that it was car-
rying ballistic missile components to Aden, Spanish naval vessels, in coordination
with the United States, stopped and boarded the So San on the high seas.143 The
crew of the So San contended that the vessel was carrying a legal cargo of concrete
to Yemen and showed papers demonstrating that it was validly registered in North
Korea. Nonetheless, the search proceeded and uncovered Scud ballistic missile
components and chemicals necessary to fuel the missiles hidden beneath the con-
crete. After Yemen demonstrated that the cargo was perfectly legal under a stan-
dard sales and shipping contract, Spanish and American authorities eventually had
to acquiesce in the vessel continuing on to its destination.144
There was a general consensus within the Bush Administration, particularly
within the Department of Defense, that this was an unacceptable result and that
something had to be done to change existing law and operational procedures to
permit the interdiction of such shipments.145 In consultation with other concerned
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William D. Baumgartner and John T. Oliver
States, President Bush developed and announced the Statement of Interdiction
Principles that States participating in PSI are "committed" to undertake.146 Among
those steps the Statement lists as appropriate is that the States will stop and search
suspected vessels, and "enforce conditions on vessels entering or leaving their
ports, internal waters, or territorial seas that are reasonably suspected of carrying
[prohibited] cargoes, such as requiring that such vessels be subject to boarding,
search, and seizure of such cargoes prior to entry." 147 Although the Statement spe-
cifically provides that any actions taken under the PSI will be "consistent with na-
tional legal authorities and relevant international law and frameworks, including
the United Nations Security Council," some governments and observers are con-
cerned that aspects of the PSI interdiction efforts beyond the limits of national ju-
risdiction may violate international law.148 However, if done with the cooperation
of the flag State and in compliance with the Statement, interdiction activities
should not raise any legal problems. Moreover, the United States and its allies
could use failure of the flag State to cooperate in the PSI as the basis for denying or
restricting port entry to vessels registered in that State.
(2) Container Security Initiative
Another recent initiative to combat the risk of international terrorist attacks on US
ports is the CSI.149 The CSI allows US customs agents, in coordination with foreign
governments, to prescreen high-risk cargo containers at the port of departure.150
Today the CSI process results in the preclearance of some 90 percent of the con-
tainers that enter US seaports and is in place in at least fifty major international sea-
ports around the world.151 The CSI process consists of four key elements: (1) using
automated information to identify and target high-risk containers; (2) prescreening
those containers identified as high risk before they leave foreign ports; (3) using
up-to-date detection technology to quickly and efficiently prescreen high-risk
containers; and (4) developing and using "smarter," more secure tamper-proof
containers.152
American citizens and allied nations expect that the United States will adopt
port entry requirements that are reasonably related to the real threat, effectively de-
signed to respond properly to it, and no more costly or intrusive than reasonably
necessary. For example, a requirement that every vessel bringing containers into a
US port must wait at a point 200 nautical miles from our shores until the US Coast
Guard boards the vessel and opens and inspects every container on board would
not violate international law.153 However, given the millions of containers in tran-
sit, the practical impossibility of searching them while on board a vessel under way,
and the costs and delays that any such effort would entail, this would be an un-
workable and unwise policy.154 The CSI, on the other hand, focuses on a relatively
55
Conditions on Entry of Foreign-Flag Vessels into US Ports
small number of containers that security experts have determined to be "high risk."
Trained screening personnel, using the latest high-technology equipment,
prescreen these "high risk" containers while they are readily accessible, before they
are loaded on the vessel en route to the next port of call. Among other things, the
recently enacted Security and Accountability for Every Port Act (SAFE Act) codi-
fies the Customs-Trade Partnership Against Terrorism, a public-private sector ini-
tiative that offers international shipping companies benefits such as expedited
clearance through US ports in exchange for improvements in their internal secu-
rity measures.155 Giving preferential access to vessels from CSI ports is an efficient,
effective, legal and relatively inexpensive way to lower the threat of international
terrorism.
The fourth key element of the CSI process is to use technology to develop and
employ more secure containers. Perhaps the most promising option is to use the
latest sensor and computer technology to continually monitor the location, status
and cargo of each container. A requirement that every container entering the
United States carry a fully functional, self-contained tamper-resistant embedded
controller (TREC) would also be a reasonable condition of port entry, particularly
if industry were to agree to participate voluntarily or if it were part of an IMO vessel
security initiative.156 TREC technology is rapidly being refined and becoming
widely available.157 Various companies are developing and deploying TRECs that
use sophisticated operating systems and act as intelligent, real-time tracking de-
vices. These devices are capable of detecting radiation, reporting tampering of the
container and, when coordinated with shipping plans entered into a computer,
identifying voyage routing and other anomalies.158
A pilot program is under way to permanently install such controllers on a large
number of containers. Each unit uses the latest generation of satellite tracking de-
vices and an advanced technology network for use by manufacturers, retailers, lo-
gistics providers, carriers and governments to share real-time cargo information.
In addition to detecting unauthorized access to the container and providing a con-
stant information stream as to location and status, the TREC controllers have the
potential to constantly monitor each container's contents to detect the presence of
radioactive materials and chemical and biological weapons. Any anomaly could
lead to a denial of port entry until such time as appropriate authorities could test
the container offshore or at a safe location.
Moreover, by enabling them to know exactly where each container is in the
world at all times, those depending on the shipments and efficient use of the con-
tainers would benefit enormously. For example, imagine that the BMW automo-
bile plant located in Spartanburg, South Carolina is expecting a shipment of
necessary component parts from Germany to arrive on August 1. Because of a
56
William D. Baumgartner and John T. Oliver
severe Atlantic hurricane, however, the container ship must delay its arrival by sev-
eral days. In a just-in-time supply chain, such a delay could cause an expensive halt
in the assembly line. Knowing of the disruption and to avoid that production delay,
the factory might order an interim shipment of essential parts to be shipped by air.
All of this could be done automatically, saving millions of dollars in production de-
lay and unnecessary warehousing. Another key business advantage, particularly to
the company that owns the shipping container, is that, as soon as the cargo is off-
loaded, it would become immediately available to pick up another shipment. Ex-
cept for the most efficient companies, no one currently keeps track of millions of
such containers throughout the world. Detecting a weapon of mass destruction
thousands of miles from the United States, while an absolutely priceless security
benefit, would be "frosting on the cake" to the everyday value of a far more efficient
global supply system.
A similar tamper-resistant device could be developed to be permanently affixed
to each vessel in the world, no matter how small. Ideally, such devices could detect
the presence of dangerous materials on board or keep track of, and report on, rout-
ing anomalies. If US policymakers were to determine that such devices on contain-
ers or vessels would contribute meaningfully to our maritime security, they could
require that every vessel entering a US port be equipped with fully functional units
as a condition of port entry. Global cooperation to develop the best possible tech-
nology, and an international agreement to require the use of such technology on all
vessels, would be the best approach to the effective implementation of such re-
quirements worldwide.
Even though the total cost to install a TREC on every container would be signifi-
cant, unit costs would no doubt come down as mass production of the device was
begun and makers competed for their portion of the market to equip millions of
containers. Although the international community must expect growing pains as
the CSI becomes fully operational, initiatives to prevent the "bomb in a box" or
"bomb on board" scenario are important tools to protect homeland security and
the international transportation network against the threat of paralyzing and ex-
pensive terrorist attacks.
(3) Automated Identification System
Modern detection, information and communications technologies provide the
potential capability to accomplish much of what needs to be done to enhance the
security of the global maritime transportation system. Although initially introduced
as a collision avoidance and maritime safety tool, the IMO has recently promoted
AIS "as a mandatory prescription to the shipping industry's fear of terrorism."159
Although there were growing pains as the technology was developed, AIS has
57
Conditions on Entry of Foreign-Flag Vessels into US Ports
proven to be very helpful, both to mariners and flag and port State authorities.
Even before the emphasis shifted to combating terrorism, maritime experts had
identified satellite-based vessel monitoring systems as an invaluable tool for man-
aging fisheries and for promoting maritime safety.160 The Department of Home-
land Security has statutory authority to implement regulations to fully implement
AIS in the United States.161 The Coast Guard also recognizes the need for such AIS
information to improve Maritime Domain Awareness by monitoring vessels ap-
proaching the US coastline and, ultimately, to develop the intelligence necessary to
help deter terrorist attacks on US ports.162
The Maritime Transportation Security Act of 2002 163 and the Coast Guard and
Maritime Safety Act of 2004164 required the Coast Guard to develop and imple-
ment a comprehensive vessel identification system. This system will enhance the
Coast Guard's capabilities to monitor vessels that could pose a threat to the United
States.165 AIS is a relatively mature technology, having been a key component of
IMO's marine safety system for years. All vessels using the Vessel Traffic Service
while entering or leaving major ports in the United States must now employ AIS.
Consistent with internationally agreed vessel equipment standards, AIS is compul-
sory on all large commercial vessels worldwide. Moreover, US law and regulations
require that it be operational on larger vessels entering US waters.166 The United
States and its trading partners may further exploit AIS to keep track of vessels, with
satellite AIS tracking on the near-term horizon.167
(4) Long-Range Identification and Tracking of Ships
The Long Range Identification and Tracking of Ships system is another IMO initia-
tive under SOLAS.168 When it becomes fully operational in January 2009, LRIT will
require ships to which the requirement applies (passenger ships, cargo ships over 300
gross tons, including high-speed craft, and mobile offshore drilling units on interna-
tional voyages) to transmit their identities, locations, and dates and times of their po-
sitions.169 That information maybe accessed upon payment of the costs thereof by
port States for those ships that intend to enter ports of that State. Most signifi-
cantly, coastal States may obtain access to the information when the ship is a desig-
nated distance off that State's coast, not to exceed one thousand nautical miles.170
As it is presently planned, there will be no interface between LRIT and AIS. One
of the more important distinctions between LRIT and AIS, apart from the obvi-
ous one of range, is that, whereas AIS is a broadcast system available to all within
range, data derived through LRIT will be available only to the SOLAS contracting-
government recipients who are entitled to receive such information. As a result,
the LRIT regulatory provisions have built-in safeguards to ensure the confidential-
ity of the data and prevent unauthorized disclosure or access. LRIT will be another
58
William D. Baumgartner and John T. Oliver
tool to keep track of vessels that might represent a security threat. Traditional free-
dom of navigation principles prevent a coastal State from requiring AIS or LRIT
information on foreign-flag vessels merely navigating on the high seas or within
the exclusive economic zone, or engaged in innocent or transit passage through the
territorial sea. However, by adopting the AIS and LRIT amendments to SOLAS,
contracting governments may obtain available AIS and LRIT information from
other contracting States. Vessels from States that choose not to participate may be
subject to extra scrutiny and delay, additional port access screening or reporting re-
quirements, or even outright denial of entry to ports.
(5) International Port Security Program
In December 2002, the IMO adopted a new set of rules for all States and interna-
tional shipping companies.171 These rules included changes to the Safety of Life at
Sea Convention through adoption of the ISPS Code. These came into effect on July
1, 2004. The ISPS Code requires States to assess the security risks at all port facilities
and to ensure that port operators prepare and implement security plans. Shipping
companies have to evaluate risks to their vessels and develop prevention and re-
sponse plans. Moreover, ISPS requires that ships install AIS, develop ship security
alert systems, create a permanent display of their vessel identification numbers and
carry a valid International Ship Security Certificate. Assuming that vessels comply
with the ISPS requirements, port States may not take enforcement action against
the vessel, including denial of port entry, unless there are "clear grounds" for con-
cluding that a vessel represents a security threat to the port State. Even then, inter-
national procedures encourage the port State to provide an opportunity for the
vessel to rectify the non-compliance.
Under US law, the Coast Guard is responsible for determining whether foreign
ports are maintaining effective anti- terrorism measures.172 To do this, the Coast
Guard created the International Port Security Program. It generally uses a State's
implementation of the ISPS Code as the key indicator as to whether it has effective
anti-terrorism measures in place.173 When the Coast Guard determines that a for-
eign port is not maintaining effective anti- terrorism measures (normally by its
failure to fully implement the ISPS Code), the Coast Guard imposes conditions of
entry on vessels arriving in the United States from a port of that State. These con-
ditions of entry usually require that the vessel take additional security measures,
both while in the foreign port and in the United States, to rectify the apparent
non-compliance. In addition, the Coast Guard will issue a port security advisory
concerning that port and publishes a notice in the Federal Register to provide
public notice of its determination. Should a vessel not meet those conditions or
59
Conditions on Entry of Foreign-Flag Vessels into US Ports
should there be additional "clear grounds" for concern, the vessel may be denied
entry into the United States.
Before allowing it to enter its first I'S port of call, the Coast Guard must board
and inspect each high-interest vessel before it enters the territorial sea or, depend-
ing on loeal conditions, shortly thereafter. Before the Captain of the Port will per-
mit the vessel to enter the US port, the inspection team must first determine that
the vessel has complied with special security conditions in the foreign port(s), con-
duct an inspection using radiation-monitoring equipment and impose certain ad-
ditional security requirements.'^ If the vessel is unwilling to subject itself to any of
these conditions or the inspection fails to resolve any security concerns, the COTP
has the authority to impose various "control and compliance measures," including
denial of entry to the port.1"5 Presently, the Coast Guard requires that foreign-flag
vessels list the five previous foreign ports on which they have called. 1_t> Since any
such measures would be designed to effectively reduce the risk of a terrorist attack
on a US port, imposing such non-discriminatorv conditions on port entry com-
ports with international law. Vessels that meet the requirements of the ISPS Code
and have called upon ports that are in compliance with the ISPS Code generally will
not be considered to be of "high interest" and will not typically be required to un-
dergo inspections beyond the l*S territorial sea.
The effect of the ISPS Code and efforts to implement it around the world means
that today the [MO, the United States and the rest of the international shipping com-
munity has a much better handle than ever before on where all commercial vessels
are at any one time, the nature of the potential security threat, how to avoid a terror-
ist incident and how best to respond to various other emergency situations.
o Otlur Programs Designed to Improve Vessel ami Port Security
At the [MO, within the I'S government, and in various international fora, respon-
sible policy experts are engaged in an ongoing effort to review and improve pro-
grams designed to enhance the security of commercial vessels and ports. Time and
space does not permit a comprehensive review of all the various proposals. Suffice
it to note here that whatever international agreements the international community
develops to improve security against potential terrorist attacks must include appro-
priate legal and policy bases on which to impose conditions on entry into port.
C. Denial of or Restrictions on Entry Related to Suspected Criminal Activity
States have a right to require that vessels seeking to call on their ports will comply
with relevant criminal laws and regulations designed to protect the peace and secu-
rity of the port State. Port State authorities may deny entry to, or impose extensive
60
William D. Baumgartner and John T. Oliver
controls on, commercial vessels seeking access to their ports as they may deem nec-
essary to ensure that any such vessels are not promoting criminal activities.
There is a vast array of potential criminal activities that can be promoted
through port entry, ranging from the importation of illegal drugs, trafficking in
women and children for various criminal purposes, maritime terrorism, illegal im-
migration, and other violations of customs and immigration laws and regulations.
To combat such illegal activities, States may require vessels visiting their ports to
submit to law enforcement boardings and investigatory screenings. Moreover, if
flag States, particularly "open registry" or "flags of convenience" States, are unwill-
ing to take appropriate action to ensure that vessels that they have registered are
not engaged in criminal enterprises, a port State could appropriately deny entry to
vessels from such States.177 All States naturally see effective crime prevention as a
vital State interest that justifies appropriate investigation and exercise of the sover-
eign right to close or protect access to their ports.
If a State is aware that a particular vessel, the vessels of a particular company, or
the vessels operating under the flag of a particular State are engaged or likely to be
engaged in criminal activity, that State's port authorities may deny entry to that
vessel or that group of vessels.178 Likewise, these authorities may require that those
vessels submit to a records review, a thorough search, and/or other personnel or
cargo screening as a precondition for entry. To increase security in the transporta-
tion industry, the US Congress established a requirement that all "crewmembers on
vessels calling at United States ports . . . carry and present on demand any identifica-
tion that the Secretary decides is necessary."179 This has evolved into the Department
of Homeland Security's initiative to establish a transportation workers identifica-
tion credential (TWIC) for workers in the maritime industry.180 In the SAFE Port
Act of 2006, Congress directed that persons convicted of certain crimes could not
obtain a TWIC, and that the TWIC process be in place at the ten most vulnerable
US ports by July 1 , 2007, and that the process be in place for the forty most vulnerable
ports by July 1, 2008. 181 The benefits of requiring and screening lists of crew and pas-
sengers in an NOA include the opportunity to detect those with criminal records. All
of these conditions on entry are well established in traditional State practice.182
D. Balancing the Right of Port Entry in Emergency Cases of Force Majeure or
Distress with the Protection of the Vital Interest of the Port
There is one set of circumstances where customary international law generally rec-
ognizes a vessel's right to enter any port — where the ship is in distress due to force
majeure.1^ Historically, a vessel in distress due to bad weather conditions, danger-
ous sea state, involvement in a collision, fire or other emergency condition threat-
ening the loss of the vessel and the lives of those on board enjoyed a right to seek
61
Conditions on Entry of Foreign-Flag Vessels into US Ports
refuge in a foreign port, bay or other protected internal waters of a foreign coastal
State.184 The 1982 LOS Convention recognizes the principles of force majeure and
distress as permitting a ship to stop and anchor when in innocent or transit pas-
sage.183 Moreover, both coastal States and individual mariners have an obligation
to take affirmative action to render assistance to vessels and persons "in danger of
being lost at sea."186
As a general rule, vessels in distress have a right of entry into the internal waters
of a port State to seek shelter without first obtaining permission from that State, es-
pecially when there is the real risk that the vessel might be lost, thus putting the
lives of those on board at genuine risk.187 Moreover, the sovereign authority of the
port State does not generally apply to vessels forced to seek refuge in a port by force
majeure or other necessity, except as may be necessary to ensure the safe and effi-
cient operation of the port.188 Under long-standing principles of customary inter-
national law, therefore, when a vessel is in extremis and must take shelter in a safe
harbor, the port State may not exclude the vessel from its internal waters and may
"not take advantage of the ship's necessity" in anyway.189
On the other hand, port States have a right to protect themselves and their citi-
zens under the principle of self-preservation. This basic principle gives such States
the right, indeed the fundamental responsibility, to keep dangerous instrumentali-
ties and conditions away.190 As Professors McDougal and Burke expressed it: "[I]f
the entry of the vessel in distress would threaten the health and safety . . . of the port
and its populace, exclusion may still be permissible."191 The Netherlands Judicial
Division of the Council of State recently considered the conditions under which a
badly damaged Chinese vessel had a right to enter Dutch waters for the purpose of
effecting repairs in a shipyard:192
[U]nder international law [a State] may not go so far as to prevent a ship which is in
distress and requires repairs from entering territorial and coastal waters and seeking
safety in a port or elsewhere along the coast. In such case, the seriousness of the
situation in which the ship finds itself should be weighed against the threat which the
ship poses to the coastal State.
Thus, the right to seek refuge does not extend to situations in which greater dam-
age or loss of life may result were the vessel to enter. The port State must balance
the emergency on the vessel with the threat to its own people and nation. Given the
national security sensitivities in the world today, it seems unlikely that any vessel in
distress today can demand entry to any port at any time. Instead, port State author-
it ies may well conclude, based on all the relevant factors, that permitting a vessel
entry into its port or internal waters represents an unacceptable threat to vital port
62
William D. Baumgartner and John T. Oliver
State interests, and take all necessary action to bar entry. However, the doctrine of
force majeure continues to represent a viable basis for requesting such access and, in
most cases, fully expecting to find safe refuge. Moreover, if port State authorities
deny or condition entry, they should be able to articulate a defensible basis for do-
ing so. Finally, if the port State denies entry, that State's authorities, and the mas-
ters of any vessels in a position to assist, must provide appropriate aid to preserve
the lives of any mariners or other persons in distress.193
V. Domestic Authority and Practical Procedures for Denying Port Entry
Even if a port State has the international legal right to deny entry to its ports to a
particular vessel in the interests of maritime security, the cognizant officials must
usually have explicit domestic authority to do so. While a country's head of State or
legislative body could formally advise another State that vessels flying its flag are
not welcome within its ports (such as Japan and Australia have recently done with
respect to vessels flying the North Korean flag and the international community is
doing to enforce UN sanctions against Iran), most decisions are made by lower-
level functionaries seeking to apply domestic law designed to promote the interests
of the State. Since there is a general presumption of entry for foreign-flag commer-
cial vessels, an official who determines that a vessel may not enter under certain cir-
cumstances must generally have the domestic legal authority to do so. Otherwise,
that official and his agency may experience legal and political complications for en-
gaging in an ultra vires act or failing to follow mandated procedures. This might
even result in a lawsuit and/or political or diplomatic pressures if the responsible
official has taken unauthorized or illegal action to the detriment of the foreign-flag
shipping company and the domestic interests using that vessel to engage in inter-
national trade. In other words, even if a State has the international legal right to
prevent entry, the exercise of that right must be carried out in accordance with do-
mestic legal authority and following established procedures.
In the handful of reported decisions that have focused on the denial of port en-
try in the United States, the aggrieved party has generally taken the position that
the officials who have made the decision to do so have acted contrary to domestic
law and policy. In Canadian Transport Co. v. United States, for example, a Canadian
corporation brought an action for damages for the Coast Guard's refusal to permit
a vessel employing a Polish master and several Polish officers entry to the harbor in
Norfolk, Virginia.194 The appellate court observed that "if the Coast Guard officers
acted arbitrarily and in violation of regulations in diverting [the foreign merchant
vessel], the United States is not immune from a damage action . . . ."195
63
Conditions on Entry of Foreign-Flag Vessels into US Ports
In a more recent case, Humane Society of the United States v. Clinton,196 plaintiffs
successfully sued President Clinton and the Secretary of Commerce because of the
federal government's failure to take timely action to sanction Italian driftnet fish-
ing vessels when these government officials had, or should have had, reasonable
cause to believe that such vessels persisted in employing excessively long driftnets
in violation of an international treaty and the implementing statute.197 The US
Court of International Trade concluded that "nine confirmed sightings [of illegal
driftnet fishing by Italian vessels] combined with the numerous allegations make
the Secretary's refusal to identify Italy a second time arbitrary, capricious and not
in accordance with the Driftnet Act."198
Existing federal statutes and regulations give the Coast Guard rather broad
power to deny port entry and control operations within US waters of foreign -flag
vessels found to be in violation of laws, regulations or treaties to which the United
States is a party. The Ports and Waterways Safety Act of 1972, as amended,199 spe-
cifically authorizes the Secretary of Homeland Security (delegated to the cognizant
Coast Guard District Commander and COTP) to deny port entry to any US port or
navigable waters if "he has reasonable cause to believe such vessel does not comply
with any regulation issued under this chapter or any other applicable law or
treaty."200 Implementing regulations provide that "[e]ach District Commander or
Captain of the Port . . . may deny entry into the navigable waters of the United
States ... to any vessel not in compliance with the provisions of the [Act] or the reg-
ulations issued thereunder."201 Later in that regulation, the District Commander
or COTP is given authority to order a vessel to operate in a particular manner
whenever he "has reasonable cause to believe that the vessel is not in compliance
with any regulation, law or treaty . . . ."202
When a port State has good cause to deny port entry to a foreign-flag vessel and
decides to do so, it has an obligation to notify the vessel's master, its flag State and
its owner(s) in as timely a manner as is reasonable under the circumstances. The
President, Secretary of State, appropriate US ambassador or other authorized State
Department official could communicate to the appropriate flag State that a partic-
ular vessel may not call upon ports in the United States because of its violation of an
international convention or domestic law. However, under existing US proce-
dures, appropriate Coast Guard officials normally carry out the process of denying
port entry to a foreign-flag vessel where US laws and regulations require or autho-
rize it. The cognizant District Commander or COTP normally issues an order to
the vessel denying port entry. Such an order should include a summary of the fac-
tual situation, the basis for denying port entry, the legal authority for taking such
action, the circumstances under which the order would be rescinded, the potential
penalties for violating the order, the process for appealing the order and the office
64
William D. Baumgartner and John T. Oliver
which the recipient of the order could call for any questions. Such an order should
be communicated not only to the vessel in question, but also to its owners, agents
and flag State.
Anytime that the United States seeks to deny port entry to a foreign-flag vessel,
even to a foreign warship, fishing vessel or merchant vessel that is in clear violation
of a law, regulation or treaty obligation, it must find the authority for denying such
entry and comply with basic due process requirements of notice and an opportu-
nity to be heard. Particularly involving issues related to homeland security, the
Coast Guard and other cognizant agencies employ the Maritime Operational
Threat Response (MOTR) coordination process to effectively align and integrate
"responses to real or potential terrorist incidents across all stakeholders" in the fed-
eral government.203 If Congress and cognizant agencies consider that denial of port
entry to certain foreign-flag vessels under particular circumstances promotes key
interests of the United States, there should be laws, regulations and procedures in
place to carry out such a policy. Otherwise there are likely to be legal, political and
practical consequences for the denial.
VI. Evaluation and Development of an Analytical Matrix
One of the key purposes of this paper is to develop a methodology to evaluate pro-
posed and actual conditions that the United States and other port States seek to im-
pose on foreign-flag vessels to promote maritime security. This section will
evaluate both the legal and policy factors that affect the imposition of such condi-
tions and then propose an analytical methodology in determining whether a par-
ticular condition on port entry is an appropriate way to promote a particular policy
goal. The final part of this section will emphasize the need and importance of har-
monizing port State regulations with international expectations and procedures.
A. Evaluating Legality and Policy for Imposing Port Entry Conditions
As discussed in detail above, international law permits port States to impose rea-
sonable conditions on the entry of foreign vessels into ports. Promoting mari-
time security is clearly a reasonable, if not essential, policy goal. However, the
international community presumes that, as a general rule, commercial vessels will
have access to the ports into which they need to enter to engage in global trade. To
be consistent with international law, any conditions on port entry must be based
on important national goals, must be directly and effectively related to accomplish-
ing one or more of these goals and must be objectively prudent and necessary un-
der all the circumstances. Any effort to impose conditions on port entry of a
foreign-flag vessel involves a claim of jurisdiction over the vessel for certain
65
Conditions on Entry of Foreign-Flag Vessels into US Ports
purposes. A port State may not deny entry or exercise jurisdiction with respect to a
foreign-flag vessel or its activity when the exercise of such jurisdiction would be arbi-
trary, discriminatory, unreasonable, in violation of treaty obligations or otherwise
improper.204
B. Determination of "Reasonableness"
Although individual States, the international community and legal commentators may
often differ as to when the imposition of conditions or the exercise of jurisdiction is
reasonable under various circumstances, it is important to make an effort to determine
whether the imposition of such restrictions would be reasonable. In determining
whether the exercise of jurisdiction over a vessel or its activity as a condition of port en-
try is appropriate or not involves consideration of a number of relevant factors. Ques-
tions that a port State and the international community might appropriately ask in
determining the reasonableness of a law or regulation conditioning port entry or im-
posing jurisdiction upon a vessel's arrival in port include:
(1) Is the policy interest(s) that the law or regulation is designed to address
one of significant importance to the port State?
(2) Does the harm(s) to be avoided, or the benefit(s) to be achieved, have a
direct connection to the foreign vessel's presence while operating in the
coastal waters of the port State?
(3) Does the regulated activity have a close geographical and temporal nexus
to the entry of the vessel into the waters of the port State?
(4) Will the law or regulation be effective in accomplishing the policy goal(s)
for which it was implemented?
(5) Would the exercise of jurisdiction under the circumstances violate an
applicable bilateral or multilateral convention or the relevant provisions
of customary international law?
(6) Will the law or regulation have the practical effect of denying or
impeding freedom of navigation in international waters, or the exercise
of the rights of innocent passage, transit passage and archipelagic sea
lanes passage, as provided in the 1982 LOS Convention?
(7) Is there domestic legal authority for denying port entry, and have the
appropriate authorities complied with the procedural requirements to
66
William D. Baumgartner and John T. Oliver
notify the vessel of the denial and included an opportunity to be heard on
the matter?
(8) Is there a less intrusive, disruptive, expensive, complicated or
objectionable way to accomplish the same policy goal(s)?
Each of these questions is relevant in determining the reasonableness of the law or
regulation under consideration. States considering whether or not to enact such
laws or impose such regulations should evaluate them to ensure they are objec-
tively reasonable.
C. Harmonizing Regulations with International Law and Expectations
Even where the port State can demonstrate that the proposed regulation is impor-
tant and that, under the factors discussed above, it is objectively reasonable, it is
important to harmonize the proposed regulation with relevant international stan-
dards and expectations. The best way to accomplish this is to obtain the approval of
the "competent international organization" charged with regulating the particular
activity. If a port State wanted to establish a traffic separation scheme for vessels en-
gaged in innocent passage through its territorial sea on the way into internal wa-
ters, international law requires that it take into account "the recommendations of
the competent international organization."205 Before establishing such schemes
within international straits used for international navigation, the 1982 LOS Con-
vention requires that the "States bordering the straits shall refer proposals to the
competent international organization with a view to their adoption."206 Within the
exclusive economic zone, a coastal State may "adopt laws and regulations for the
prevention, reduction and control of pollution from vessels conforming to and
giving effect to generally accepted international rules and standards . . . ."207 Based
on comity and efficiency, all States should seek to harmonize their national expec-
tations, standards and procedures with those of the international community.
The 1982 LOS Convention provides for coordinating proposals that affect inter-
national shipping, particularly with respect to navigational safety and the protec-
tion of the marine environment, within the IMO process. The IMO has proven
particularly adept at reaching consensus, and then harmonizing national and in-
ternational standards and expectations for a wide variety of issues ranging from
vessel construction through bilge-water-discharge standards. The 1965 Conven-
tion on Facilitation of International Maritime Traffic, which the IMO has updated
regularly, emphasizes the importance of simplifying and reducing to a minimum
the administrative burdens imposed on international shipping "to facilitate and
expedite international maritime traffic . . . ."208
67
Conditions on Entry of Foreign-Flag Vessels into US Ports
Any measures designed to protect port State interest must also be instituted in
such a way so as to avoid the practical effect of denying or impeding freedom of
navigation as provided in the 1982 LOS Convention. Those interested in the law of
the sea must be concerned about the potential impact that restrictions on port en-
try might have on vessels merely engaged in transit passage, innocent passage or
high seas navigation in the exclusive economic zone of another State. Some of the
restrictions on port entry under consideration by some port States, such as Austra-
lia's recent decision to require pilots on most vessels transiting the Torres Strait,
threaten traditional navigational freedoms and undermine long-standing princi-
ples of the law of the sea.209 Others are less objectionable, because they bind only
State parties. These include a provision of the recently adopted Wreck Removal
Convention, which imposes a requirement that each State party shall ensure that
any ship entering or leaving a port or offshore terminal provide evidence of finan-
cial security.210 Another trend in multilateral treaties is to require that States party
bar entry to their ports for fishing vessels determined to have been engaged in ille-
gal, unregulated and unreported fishing activities. Another issue that requires con-
sideration is the possible impact of conditions on entry with trade agreements.
Since World War II, multilateral efforts have sought to reduce barriers to interna-
tional trade, while ensuring a level playing field. These efforts first resulted in the
General Agreement on Tariffs and Trade (GATT). During the 1990s, negotiations
led to the establishment of the World Trade Organization (WTO), which took over
most of the functions of GATT. Although the WTO/GATT process is silent on the
specific issue of vessel access to ports, the denial of a right of port entry could well
be seen as a trade barrier inconsistent with a nation's responsibility under its provi-
sions. Moreover, if a port State were to treat vessels flying various foreign flags dif-
ferently, the WTO/GATT rules may apply to prevent discrimination or favorable
treatment being given to vessels from member States.211 However, in practice,
there is little real danger of a successful challenge when the port State is seeking to
promote legitimate concerns, such as environmental protection, vessel safety and
homeland security. As Professor Ted Dorman put it,
While the international trade agreements administered by the W.T.O. may affect the
ability of a port state to deny access to foreign vessels or to impose burdensome
conditions on foreign vessels entering port, the effect is limited to those situations
where the port state is using port access as a means to deny entry of the goods being
carried by the vessel 212
68
William D. Baumgartner and John T. Oliver
As discussed earlier in this article, any regulations designed to restrict entry to US
ports must also be consistent with our international obligations under any bilateral
FCN treaties to which the US is party.
VII. Recommendations and Conclusion
For the good of the entire world community, policymakers must seek to ensure
that ocean trade continues to flourish and grow. This requires promoting access to
key ports with minimal restrictions and conditions. Toward this end, international
law presumes that the ports of every port State should be open to all foreign com-
mercial vessels, and a port may be closed or a vessel denied entry to the port only
when important interests of the port State justify the closure.
At the same time, the world community must be sensitive to the legitimate con-
cerns of port States to protect important national interests, particularly maritime
safety and security. To promote and protect these and other important interests,
port States have a right to close their ports or to impose conditions on port entry
and exit with respect to a broad range of important interests directly related to the
vessel's visit. A port State may restrict entry to all foreign vessels, subject only to any
rights of entry clearly granted under an applicable treaty and those vessels in dis-
tress due to force majeure.
To avoid using international trade as a heavy-handed and ineffective diplomatic
tool designed to reward or punish foreign States, however, a port State should not
impose port entry or exit requirements on foreign merchant vessels — or exercise ju-
risdiction on foreign-flag vessels in port — even those designed to promote impor-
tant goals, that are not reasonably related to the visit of the vessel in question on the
specific occasion. Toward this end, absent specific, identifiable concerns with re-
spect to the vessel or State in question, a port State should treat all foreign-flag ves-
sels equally, and not discriminate in the prescription and enforcement of its laws.
The application of the law of the port State should not have the practical effect of
denying or impairing the traditional rights of the sea, including freedom of naviga-
tion in international waters, or the exercise of the rights of innocent passage, transit
passage and archipelagic sea lanes passage, in coastal waters. Moreover, denial of
port entry, or imposing unreasonable conditions on port entry, has an adverse im-
pact on the port State's ability to engage in international trade. As a result, such re-
strictions harm the economy of both the port State and, to a less direct extent, the
world community at large.
Given the crucial importance of international trade in today's global economy,
incremental costs, short delays or minor disruptions can have a profoundly adverse
impact. In this regard, harmonizing and coordinating conditions on port entry
69
Conditions on Entry of Foreign-Flag Vessels into US Ports
throughout the world community, with similar expectations, requirements, forms
and procedures, can achieve the goals without imposing as much of an administra-
tive burden. Wisely balancing the benefits to be achieved from imposing condi-
tions on port entry, such as intelligently devised security requirements, against the
costs and burdens associated with each, is essential. International lawyers and pol-
icymakers must strive to ensure that access to the world's ports is as free as reason-
ably possible, and that conditions on entry and exit are directly and effectively
related to the important interests of the port State and the world community at
large. The goal of all States should be to promote and ensure safe, secure, efficient
and environmentally sound international ocean trade.
Notes
1. Myres S. McDougal & William T. Burke, The Public Order of the Oceans 90
(1962).
2. Restatement (Third) of Foreign Relations Law § 512 rep. n. 3 (1987) [hereinafter
Restatement]. See Peter Malanczuk, akehurst's Modern Introduction to Interna-
tional LAW 175 (7th rev. ed. 1997) ("Although a coastal state has the right to forbid foreign
merchant ships to enter its ports, most states are keen to support trade, and therefore welcome
foreign ships to their ports."); MCDOUGAL & BURKE, supra note 1, at 99-100.
3. Saudi Arabia v. Arabian American Oil Company (Aramco), Award of Aug. 23, 1958, 27
I.L.R. 117, 212 (dictum). This statement represents commercial policy and comity and, accord-
ing to one expert, has no "substantive basis" in international law. A.V. Lowe, The Right of Entry
into Maritime Ports in International Law, 14 SAN DIEGO LAW REVIEW 597, 621 (1977).
4. C. JOHN COLOMBOS, THE INTERNATIONAL LAW OF THE SEA §§ 181, 176 (6th ed. 1967).
"The entry of foreign merchant ships may thus be reasonably regulated provided no hindrance is
put in the way of international trade and no discrimination made between States so as to favour
some at the expense of others." Id. at § 177.
5. RESTATEMENT, supra note 2, § 512 cmt. c (1987).
6. "Coastal states have a sovereign right to grant or to deny access to their ports to any for-
eign vessel." Louise de La Fayette, Access to Ports in International Law, 1 1 INTERNATIONAL JOUR-
NAL of Marine & Coastal Law l , 2 ( 1 996).
7. Professors Churchill and Lowe have commented that the "dictum [in the Aramco case] is
not supported by the authorities cited by the tribunal, and there is almost no other support for
the proposition." R.R. CHURCHILL & A.V. LOWE, THE LAW OF THE SEA 62 (3d ed. 1999).
8. United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 3 (en-
tered into force Nov. 16, 1994), available at http://www.un.org/Dept/los/convention _agreements/
tcxt/unclos/clos. index. htm [hereinafter 1982 LOS Convention].
9. Bernard H. Oxman, The Territorial Temptation: A Siren Song at Sea, 100 AMERICAN
JOURNA1 ' >i In I ERNATIONAL LAW 830, 844 (2006) (footnote referring to 1982 LOS Convention,
arts. 25(2) and 21 1(3), omitted).
1 0. 1 982 LOS Convention, supra note 8, art. 25(2). The United States has not yet acceded to
the Convention. I [owever, this same principle is codified in Article 16(2) of the 1958 Conven-
tion on the Territorial Sea and Contiguous Zone, Apr. 29, 1958, 15 U.S.T. 1606, T.I.A.S. No.
3639, 516 U.N.T.S. 205, to which the United States is a party.
70
William D. Bautngartner and John T. Oliver
11. See President Ronald Reagan, Statement on United States Ocean Policy, Mar. 10, 1983,
22 International Legal Materials 464 (1983), reprinted in 77 American Journal of In-
ternational LAW 619 (1983); see also ARND BERNAERTS, BERNAERTS' GUIDE TO THE 1982
UNITED NATIONS CONVENTION ON THE LAW OF THE SEA 14-15 (2006).
12. See Lowe, supra note 3, at 597-625. See also GEORGE C. KASOULIDES, PORT STATE CON-
TROL AND JURISDICTION: EVOLUTION OF THE PORT STATE REGIME 1-22 (1993).
13. Lowe, supra note 3, at 622 (footnote omitted).
14. La Fayette, supra note 6, at 1 (emphasis in original).
15. United States v. Louisiana, 394 U.S. 11, 22 (1969).
16. Laurizen v. Larsen, 345 U.S. 571, 592-93 (1953).
17. An embargo is one of the tools available to the international community, or a nation-State,
to seek to change the behavior of another nation-State. UN Charter art. 41. So are economic re-
prisals. In 1984 the United States closed its ports to vessels flying the Nicaraguan flag as part of an
economic sanctions package in retaliation for the guerrilla war that the government of Nicaragua
was waging against its neighbors. Dan Morgan, Why the Nicaragua Embargo?, WASHINGTON
POST, May 5, 1985, at C5.
18. According to one federal appeals court, US cases contain no precedents that "the law of
nations accords an unrestricted right of access to harbors by vessels of all nations." Khedivial
Line, S.A.E. v. Seafarers' Int'l Union, 278 F.2d 49, 52 (2d Cir. 1960). "In any event, the law of na-
tions would not require more than comity to the ships of a foreign nation" and in the specific
context the Court addressed it noted that American vessels were harassed in the ports of the
United Arab Republic. Id.
19. For a good example of one State's approach, see the 1995 Norwegian Regulations Gov-
erning Pilotage and Entry to Norwegian Waters (June 20, 1995), available at http://
www.state.gov/www/global/oes/oceans/ntrvo 1 1 3.html.
20. CHURCHILL & LOWE, supra note 7, at 107 (footnote omitted).
21. "In the case of warships, the assertion of comprehensive authority to exclude most fre-
quently takes the form of establishing limiting conditions for entry, with particular emphasis
upon the necessity for giving notice of intended visits." McDOUGAL & BURKE, supra note 1, at
94. See also id. at 114-15.
22. "[T]he right [of port States] to exclude foreign warships is undoubted." CHURCHILL &
LOWE, supra note 7, at 61. See also LOUIS B. SOHN & JOHN E. NOYES, CASES AND MATERIALS ON
THE LAW OF THE SEA 377-78 (2004) (treaties of friendship, commerce and navigation usually do
not provide for warship access).
23. See, e.g., Straddling and Highly Migratory Fish Stocks Agreement art. 23, Dec. 4, 1995, 34
INTERNATIONAL LEGAL MATERIALS 1542, 1567 (1995) ("Measures taken by a port State").
24. The general practice of the free access of merchant ships of almost all nations
to almost all commercial ports is based upon convenience and economic
interest, and in the absence of treaty provisions, it is not based upon any sense
of legal obligation .... [A] coastal state can impose special regulations with
regard to fishing boats and privately owned pleasure and racing yachts and
boats. For this reason, they form separate categories.
V.D. Degan, Internal Waters, 17 NETHERLANDS YEARBOOK OF INTERNATIONAL LAW 3 (1986).
25. For example, in 1985 New Zealand announced that it would not permit nuclear-capable
US warships to enter its ports absent an official statement confirming that no such weapons were
on board. See STUART MCMILLAN, NEITHER CONFIRM NOR DENY: THE NUCLEAR SHIPS DIS-
PUTE BETWEEN NEW ZEALAND AND THE UNITED STATES (1987).
71
Conditions on Entry of Foreign-Flag Vessels into US Ports
26. "There is a presumption that ports traditionally designated for foreign trade are open to
all ships and that the arbitrary closure of a port gives rise to a right of protest and, under certain
circumstances, liability for damages." Ademuni-Odeke, Port State Control and UK Law, 28 JOUR-
NAL of Maritime Law and Commerce 657, 660 (1997) (footnote omitted).
27. Churchill & Lowe, supra note 7, at 63.
28. "A coastal state can condition the entry of foreign ships into its ports on compliance with
[its] laws and regulations." RESTATEMENT, supra note 2, § 512 rep. n. 3.
29. See International Convention for the Safety of Life at Sea, Nov. 1, 1974, 32 U.S.T. 47,
1 184 U.N.T.S. 276, XI-2, Reg. 9/2.1.6 [hereinafter SOLAS Convention]; International Ship and
Port Facility Security (ISPS) Code, Part B 4.39. For details on the current status of the SOLAS
Convention and its amendments, see http://www.imo. org/Conventions/contents.asp?topic
_id=257&doc_id=647. See also Ports and Waterways Safety Act of 1978, Pub. L. No. 95-474, § 2,
92 Stat. 1472 (codified at 33 US Code § 1223(a)(5) and implemented by 33 C.F.R. § 160.201 et
seq).
30. An FCN treaty usually provides guarantees for the access of foreign vessels to ports and
their subsequent departures. See, e.g., Treaty of Friendship, Commerce, and Navigation, US-
Italy, arts. XIX(3) and XX( 1 ), Feb. 2, 1948, 63 Stat. 2256, 2284. Even then, however, FCN treaties
do not preclude a port State from denying access to vessels flying the flag of the other State party
to protect essential interests. MCDOUGAL & BURKE, supra note 1, at 109. The provisions of most
FCN treaties provide for restricting access when "necessary for the protection of the essential in-
terests ... in time of national emergency." Treaty of Friendship, Commerce and Navigation, US-
Japan, art. XXI, Apr. 2, 1953, 4 U.S.T. 2063.
3 1 . Professors Churchill and Lowe opined that the power to condition access could be lim-
ited. CHURCHILL 8c LOWE, supra note 7, at 63. See also Ademuni-Odeke, supra note 26, at 660
("[T]he arbitrary closure of a port gives rise to a right of protest and, under certain circum-
stances, liability for damages.").
32. The normal practice in these FCN agreements is to exclude fishing vessels and warships
from the port access provisions, except in cases of distress. MCDOUGAL & BURKE, supra note 1, at
109-10 8c n.59.
33. CHURCHILL 8c LOWE, supra note 7, at 65, 98-99. See The Schooner Exchange v.
McFaddon, 11 U.S. (7 Cranch) 116, 147(1812) ("[A] public armed ship, in the service of a for-
eign sovereign, . . . should be exempt from the jurisdiction of the country."). See also 1982 LOS
Convention, supra note 8, arts. 30-33, 95-96.
34. See RESTATEMENT, supra note 2, § 457, rep. n. 7, and § 512, rep. n. 6; CHURCHILL 8c
LOWE, supra note 7, at 99 ("[T]he flag State is responsible for loss to the coastal State "). See
also 1982 LOS Convention, supra note 8, arts. 30-33 and 42(5).
35. London Convention on the Facilitation of International Maritime Traffic art. 1, Apr. 9,
1965, 18 U.S.T. 41 1,591 U.N.T.S. 265 [hereinafter FAL Convention]. See Jochen Erler, The New
Convention on Facilitation of International Maritime Traffic, 13 McGlLL LAW JOURNAL 323, 323-
28 ( 1 967). Cf 1 982 LOS Convention, supra note 8, art. 255 ("States shall adopt reasonable rules,
regulations and procedures to promote and facilitate marine scientific research [including] , sub-
ject to the provisions of their laws and regulations, access to their harbours . . . .").
36. See FAL Convention, supra note 35, art. 16. See also COLOMBOS, supra note 4, § 181,
at 1 77. "The entry of foreign merchant ships may thus be reasonably regulated provided no
hindrance is put in the way of international trade and no discrimination made between States so
as to favour some at the expense of others." Id. Interestingly, the 1982 LOS Convention does not
specifically provide for an equal-treatment port-access regime, except in the limited circum-
stances of land locked States. "Ships flying the flag of land-locked States shall enjoy treatment
72
William D. Baumgartner and John T. Oliver
equal to that accorded to other foreign ships in maritime ports." 1982 LOS Convention, supra
note 8, art. 131.
37. Stephen E. Flynn, America the Vulnerable, 8 1 FOREIGN AFFAIRS, Jan.-Feb. 2002, at 60, 66.
38. Quoted in April Terreri, International Trade is Less Secure Than You Think, WORLD
TRADE MAGAZINE, Sept. 4, 2006, available at http://wvvrvv.worldtrademag.com/CDA/Articles/
Feature_Article/d37c5947e0c7d010VgnVCM100000f932a8c0.
39. See J.M. ROBERTS, HISTORY OF THE WORLD 73-99, 333-34, 441-505 (1993). See also
A Century of Free Trade, BBC NEWS, Feb. 12, 2003, http://news.bbc.co.Uk/l/hi/business/533716
.sm.
40. International Trade, ENCYCLOPEDIA BRITANNICA ONLINE (2007), http://www.britannica
.com/eb/article-9 106321 /international-trade.
4 1 . Andrew Marshall, Waterway to the World, TIME ASIA MAGAZINE, July 25, 2006, available
at http://www.time.com/time/asia/2006/journey/strait.html.
42. US DEPARTMENT OF HOMELAND SECURITY, SECURE SEAS, OPEN PORTS: KEEPING OUR
WATERS SAFE, SECURE, AND OPEN FOR BUSINESS 3 (2004), available at http://www
.piersystem.com/posted/586/DHSPortSecurityFactSheet_062104.41841.pdf.
43. John D. Haveman, Howard J. Shatz 8c Ernesto A. Vilchis, U.S. Port Security Policy after 9/11:
Overview and Evaluation, 2 JOURNAL OF HOMELAND SECURITY & EMERGENCY MANAGEMENT 1
(2005), available at http://www.bepress.eom/jhsem/vol2/iss4/l. "Multimodal" means the ability
to transfer shipping containers quickly to and from ocean vessels and other transportation mo-
dalities, such as rail cars, trucks, barges and airplanes.
44. Office of Statistical & Economic Analysis, Maritime Administration, US De-
partment of Transportation, Vessel Calls at U.S. Ports (2004), ix-x, 16-20 (July 2005),
available at http://www.marad.dot.gov/Marad_Statistics/vcalls2004.pdf [hereinafter MARAD].
45. K. Lamar Walters III, Industry on Alert: Legal and Economic Ramifications of the Home-
land Security Act on Maritime Commerce, 30 TULANE MARITIME LAW JOURNAL 311, 323-24
(2006).
46. Id. at 323. See also Jeremy Firestone & James Corbett, Maritime Transportation: A Third
Way for Port and Environmental Security, 9 WlDENER LAW SYMPOSIUM JOURNAL 419, 422
(2002-03).
47. Energy Information Administration, US Department of Energy, Crude Oil and Total Pe-
troleum Imports Top 15 Countries, Jan. 17, 2007, http://www.eia.doe.gov/pub/oil_gas/petroleum/
data_publications/company_level_imports/current/import.html. Canada is the single nation
providing the largest source of foreign oil to the American market. Id.
48. US LNG imports have been growing dramatically in recent years. The primary sources of
LNG for consumption in the United States include Trinidad and Tobago, Algeria and Nigeria.
Energy Information Administration, US Department of Energy, U.S. Natural Gas Imports by
Country, last updated Jan. 18, 2007, http://tonto.eia.doe.gov/dnav/ng/ng_move_impc_sl
_m.htm.
49. U.S. Coast Guard, The U.S. Coast Guard Strategy for Maritime Safety, Secu-
rity, AND STEWARDSHIP 18 (2007), available at http://www.uscg.mil/comdt/speeches/docs/
CGS-Final.pdf. See also Natural Gas Intelligence, North American LNG Import Terminals, Nov.
6, 2006, http://intelligencepress.com/features/lng/.
50. MARAD, supra note 44. See also Firestone & Corbett, supra note 46, at 422.
51. See Pearl Harbor Attack, ENCYCLOPEDIA BRITANNICA ONLINE (2007), http://www
.britannica.com/eb/article-9058877/Pearl-Harbor-attack.
52. See Michael N. Schmitt, U.S. Security Strategies: A Legal Assessment, 27 HARVARD JOUR-
NAL OF LAW 8c PUBLIC POLICY 737, 738-40 (2003-04); Steven M. Kosiak, The Cost and Funding
73
Conditions on Entry of Foreign-Flag Vessels into US Ports
of the Global War on Terror (GWOT), Jan. 18, 2007, http://www.comw.org/pda/fulltext/
0701kosiak.pdf (testimony before Congress).
53. See MICHAEL E. O'HANLON, PROTECTING THE AMERICAN HOMELAND: A PRELIMINARY
ANALYSIS 7 (2002) (explaining that not only would such a port-security disaster cause mass casu-
alties and destruction, it would require shutting down the US maritime import and export sys-
tems, causing maritime gridlock, the economic collapse of many businesses and possible
economic losses totaling $1 trillion).
54. "It is feared that terrorists could use the ubiquitous, anonymous, and largely innocuous
steel boxes and their transport system to devastating effect." MICHAEL D. GREENBERG ET AL.,
Maritime Terrorism: Risk and Liability 1 1 1— 14 (2006) (footnote omitted). See Justin
Mellor, Missing the Boat: The Legal and Practical Problems of the Prevention of Maritime Terror-
ism, 18 AMERICAN UNIVERSITY INTERNATIONAL LAW REVIEW 341, 348-51 (2002-03); Stephen
E. Flynn, Homeland Security Is a Coast Guard Mission, US NAVAL INSTITUTE PROCEEDINGS, Oct.
2001, at 72, 72-73.
55. Eben Kaplan, Liquefied Natural Gas: A Potential Terrorist Target?, Feb. 27, 2006, http://
www.cfr.org/publication/9810/. See also August Gribbin, Seaports Seen as Terrorism Target: U.S.
Will Secure Harbors, but Actions Likely to Hurt Trade, WASHINGTON TIMES, Jan. 22, 2002, at Al.
There have been disturbing reports of terrorists hijacking supertankers, practicing handling
them and then stealing manuals on vessel operations before leaving the ship. See Gal Luft & Anne
Korin, Terrorism Goes to Sea, FOREIGN AFFAIRS, Nov.-Dec. 2004, at 61, 68-70.
56. Mellor, supra note 54. See also Paul W. Parformak, Liquified Natural Gas (LNG) Infra-
structure Security: Issues for Congress, CONGRESSIONAL RESEARCH SERVICE REPORT FOR CON-
GRESS, 25-26 (2005), available at http://ncseonline.org/nle/crsreports/05mar/RL32073.pdf.
57. Haig v. Agee, 453 U.S. 280,307 (1981) (quoting Aptheker v. Secretary of State, 378 U.S.
500,509(1964)).
58. Jonathan Medalia, Terrorist Nuclear Attacks on Seaports: Threat and Response, CONGRES-
SIONAL Research Service Report for Congress 1, 1-2 (2005); Mellor, supra note 54, at 346-
47 (focusing on the problem of weapons shipped into the United States in a cargo container); see
Flynn, supra note 37, at 72-73 (the United States has a pressing need to defend against terrorist
attacks at vulnerable seaports).
59. According to one study, a ten-kiloton weapon detonated in a major seaport would kill as
many as one million people and inflict as much as $1.7 trillion dollars in property damage, trade
disruption and indirect costs. CLARK C. ABT, EXECUTIVE SUMMARY: THE ECONOMIC IMPACT OF
NUCLEAR TERRORIST ATTACKS ON FREIGHT TRANSPORT SYSTEMS IN AN AGE OF SEAPORT VUL-
NERABILITY 3 (2003), available at http://www.abtassociates.com/reports/ES-Economic_Impact
_of_Nuclear_Terrorist_Attacks.pdf.
60. See Section IV infra ("Conditions on Entry Related to National Defense, Homeland
Security, Counterterrorism and Law Enforcement Concerns").
61. Convention and Statute on the International Regime of Maritime Ports art. 3, annexed
to the Convention on the International Regime of Maritime Ports, Dec. 9, 1923, 28 L.N.T.S. 115.
The United States is not party to either the Statute or the Convention on the International
Rcgi me of Maritime Ports. " [ A ] lthough ratified by only a small number of states, [the 1 923 Con-
vention] reflects largely customary rules of international law." BERNAERTS,5»prrt note 11, at 111.
62. See, e.g., 46 App. US Code § 91; 46 US Code §§ 42107 and 52305 (2006) ("Refusal of
clearance and entry").
63. 46 App. US Code §§ 121-35. Note that tonnage duty is to be paid based on the displace-
ment of the vessel, while the tariff or customs duty is a separate levy based on the value of the im-
ported merchandise.
74
William D. Baumgartner and John T. Oliver
64. See, e.g., 8 US Code §§1181 ("Admission of immigrants into the U.S."), 1281-87 ("Alien
crewmen").
65. See, e.g., 42 US Code §§ 264-72; and 9 C.F.R. § 93.106 ("Quarantine requirements" for
animals and plants being imported into the United States).
66. Congress has provided statutory authority for controlling infectious diseases, including
the quarantining of suspect vessels and their crews and passengers. 42 US Code §§ 264—72. The
President regularly updates the list of communicable diseases subject to quarantine. Exec. Order
No. 13,295, Apr. 4, 2003, 68 Fed. Reg. 17,255 (Apr. 9, 2003), reprinted in 42 US Code § 264, as
amended by Exec. Order No. 13,375, Apr. 1, 2005, 70 Fed. Reg. 17299 (Apr. 5,2005). He has also
delegated to the Secretary of Health and Human Services his authority to carry out duties under
the statute. Id. See also 42 C.F.R. pts. 71 & 72.
67. See 42 US Code § 267(a): " [The Surgeon General] shall from time to time select suitable
sites for and establish such additional . . . anchorages in the States and possessions of the United
States as in his judgment are necessary to prevent the introduction of communicable diseases
into the States and possessions of the United States." "It shall be the duty of the customs officers
and of Coast Guard officers to aid in the enforcement of quarantine rules and regulations — " 42
US Code § 268(b).
68. "The exclusion of aliens is a fundamental act of sovereignty." Knauff v. Shaughnessy, 338
U.S. 537, 542-43 (1950). In 1981, President Reagan ordered the Coast Guard to interdict vessels
on the high seas where there was reason to believe the vessel was engaged in the transportation of
illegal immigrants. Exec. Order No. 12,324, 46 Fed. Reg. 48,107, 48,109 (Sept. 29, 1981). Presi-
dent Bush issued similar guidance in 1992. Exec. Order No. 12,807, 57 Fed. Reg. 23,133 (1992).
This policy remains in effect today. See Gary W. Palmer, Guarding the Coast: Alien Migrant Inter-
diction Operations at Sea, 29 CONNECTICUT LAW REVIEW 1565, 1569-72 (1997).
69. FAL Convention, supra note 35. The purpose of the FAL Convention is "to facilitate
maritime traffic by simplifying and reducing to a minimum the formalities, documentary re-
quirements and procedures on the arrival, stay and departure of ships engaged in international
voyages." Id. (Preamble).
70. See Rosalie Balkin, The International Maritime Organization and Maritime Security, 30
TULANE MARITIME LAW JOURNAL 1, 14 (2006) (noting that the 2002 amendments to the FAL
Convention entered into force on May 1, 2003).
71. Information concerning IMO-recommended practices and forms for the FAL Conven-
tion is available at http://www.imo. org/Conventions/contents.asp?topic_id=259&doc_id=
684#4.
72. MCDOUGAL & BURKE, supra note 1, at 96 (footnote omitted). See also HAIJIANG YANG,
Jurisdiction of the Coastal State over Foreign Merchant Ships in Internal Waters
and the Territorial Sea 208-20 (2006).
73. 46 US Code §§ 8501-503. Compulsory pilotage requirements in internal waters are
among the accepted rights of a port State. Glen Plant, International Legal Aspects of Vessel Traffic
Services, 14 MARINE POLICY 71, 73 (1990).
74. "Except as otherwise provided in this subtitle, pilots in the bays, rivers, harbors, and ports
of the United States shall be regulated only in conformity with the laws of the States" 46 US Code §
8501(a). Although the Constitution clearly gives Congress the power to regulate commerce with
foreign nations, including regulating pilotage, Congress continues to let the individual States regu-
late most pilotage matters. See Ray v. Atlantic Richfield Co., 535 U.S. 151, 159-60 (1978) (States
may not impose pilotage requirements on "enrolled vessels" covered by federal laws, but "it is
equally clear that they are free to impose pilotage requirements on registered vessels entering and
leaving their ports "). But see 46 US Code §§ 9301-308 (a federal regulatory scheme governs
75
Conditions on Entry of Foreign-Flag Vessels into US Ports
pilotage on the Great Lakes), and 46 US Code § 8502 (requiring federally licensed pilots for ves-
sels designated therein).
75. JEANETTE GREENFIELD, CHINA'S PRACTICES IN THE LAW OF THE SEA 32-33 (1992).
Since 1979, the People's Republic of China has established an extensive set of regulations on port
access both for security purposes and to foster international trade. Mark A. Hamilton, Negoti-
ating Port Access: TheSino-U.S. Opportunity for Leadership in the Maritime Transport Services In-
dustry^ ASIAN-PACIFIC LAW & POLICY JOURNAL 153, 155-56 (2002). For example, a vessel must
request permission at least one week before the visit, must comply with a host of conditions on
port access, must use the services of a pilot and must pay various port fees for services and cus-
toms. Failure to do so can result in denial of access, fines or even detention. GREENFIELD, supra at
31-34.
76. In the United States, the Ports and Waterways Safety Act provides authority for the Sec-
retary of Homeland Security to establish a comprehensive program for vessel traffic services in
US ports. 33 US Code §§ 1221-32. This includes provision for civil and criminal penalties, and
authorizes the Captain of the Port to deny entry or withhold clearance to depart for vessels that
fail to comply. Id. at § 1232. See also 33 C.F.R. § 160.1-160.1 1 1.
77. A total of some fourteen thousand vessels transit the Panama Canal each year, carrying
over 203 million tons in cargo. See Panama Canal, ENCYCLOPEDIA BRITANNICA ONLINE (2007),
http://www.britannica.com/eb/article-9110730/Panama-Canal.
78. See Houston Ship Channel, WlKIPEDIA, http://en.wikipedia.org/wiki/Houston
_Ship_Channel (last visited Dec. 28, 2007).
79. See 33 US Code § 1223 ("Vessel operating requirements"); 33 C.F.R. §§ 164. 1 1 ("Naviga-
tion underway: general"), 164.13 ("Navigation underway: tankers").
80. The Transportation Safety Act of 1974 is the statutory framework for such regulations.
49 US Code §§ 5101-27. See 49 C.F.R. pt. 176 ("This part prescribes requirements ... to be ob-
served with respect to the transportation of hazardous materials by vessel.")
8 1 . See 33 US Code § 1 228 ("Conditions for entry to ports in the United States"). See also RE-
STATEMENT supra note 2, § 512 cmt. c, rep. n. 4.
82. See 33 US Code § 1228(a)(1).
83. 1982 LOS Convention, supra note 8, art. 219 (the vessel will proceed for repairs before
being permitted to leave).
84. See Sean Poltrack, Maritime Industry and the Environment: The Delicate Balance of Eco-
nomic and Environmental Concerns, 8 UNIVERSITY OF BALTIMORE JOURNAL OF ENVIRONMEN-
TAL LAW 51, 74-75 (2001-02) ("Vessel Safety Management").
85. SOLAS Convention, supra note 29.
86. Titanic, ENCYCLOPEDIA BRITANNICA ONLINE (2007), http://www.britannica.com/eb/
article-9072642/Titanic.
87. SOLAS Convention, supra note 29, ch. I, reg. 19(c) & ch. XI, reg. 4.
88. International Convention on Standards of Training, Certification and Watchkeeping for
Seafarers, with Annex (STCW), July 7, 1978, S. Exec. Doc. EE 96-1, C.T.I.A. No. 7624, 1361
U.N.T.S. 190.
89. See http://www.imo.org/Conventions/contents.asp?doc_id=651&topic_id=257 (pro-
viding details on the current status of the STCW Convention).
90. See 33 US Code § 1228 ("Conditions for entry to ports in the United States").
91. 33 C.F.R. pt. 1 64 ("Navigational safety regulations"). See, e.g., the proposal by the Euro-
pean Union to bar entry to its ports to ships that fail to comply with the SOLAS International
Safety Management Code, which has since been incorporated into Chapter IX of SOLAS.
92. See COLOMBOS, supra note 4, § 181, at 177:
76
William D. Baumgartner and John T. Oliver
[E] ach State has the right to enact laws controlling navigation within its national waters.
The entry of foreign merchant ships may thus be reasonably regulated provided no
hindrance is put in the way of international trade and no discrimination made between
States so as to favour some at the expense of others.
Id.
93. 46 US Code § 701 14; 33 C.F.R. § 164.46 ("Automatic identification system"). AIS is de-
fined as
a maritime navigation safety communications system standardized by the International
Telecommunication Union (ITU) and adopted by the International Maritime
Organization (IMO) that provides vessel information, including the vessel's identity,
type, position, course, speed, navigational status and other safety- related information
automatically to appropriately equipped shore stations, other ships, and aircraft;
receives automatically such information from similarly fitted ships; monitors and
tracks ships; and exchanges data with shore-based facilities.
47 C.F.R. § 80.5.
94. J.M. Sollosi, The Automated Identification System & Port Security, PROCEEDINGS OF THE
MARINE SAFETY COUNCIL, Apr-May 2003, at 36, available at http://www.uscg.mil/hq/g-m/
nmc/pubs/proceed/newpromagpage2005/q2_03.pdf.
95. Brian Tetreault, Automated Identification System: The Use of AIS in Support of Maritime
Domain Awareness, US COAST GUARD PROCEEDINGS, Fall 2006, at 27, 28-30.
96. Sollosi, supra note 94, at 38. "The AIS would contribute to this [Maritime Domain
Awareness] mission by enabling the shore authority to track certain suspect vessels." See also
Alexandra Marks, America's Ship-Tracking Challenge, CHRISTIAN SCIENCE MONITOR, Jan. 31,
2007, at 3, available at http://www.csmonitor.com/2007/0131/p03s03-usgn.html.
97. 33 C.F.R. § 164.41 ("Electronic position fixing devices"). The widespread availability of
inexpensive and highly accurate Global Positioning System receivers, computers and communi-
cations systems linked to these devices should help make collisions and groundings a thing of the
past.
98. 33 C.F.R. § 164.38 ("Automatic radar plotting aids (ARPA)"); see id., app. B.
99. 46 C.F.R. § 184.502 (vessels required to comply with Federal Communications
Commission requirements).
100. 33 C.F.R. § 160.212. After 9/11, the Coast Guard immediately acted to increase the ad-
vance NOA requirement from twenty-four to ninety-six hours. Temporary Requirements for
Notification of Arrival in U.S. Ports, 66 Fed. Reg. 50,565, 50,566-68 (Oct. 4, 2001) (Chart I—
Time for Submission) (codified at 33 C.F.R. pt. 160).
101. 33 C.F.R. at § 160.206 (Table 160.206). See J. Ashley Roach, Container and Port Secu-
rity: A Bilateral Perspective, 1 8 INTERNATIONAL JOURNAL OF MARINE & COASTAL LAW 34 1,355-
57 (2003) ("Advance Notice of Arrival").
102. 33 C.F.R. § 160.206 (Table 160.206). The ISPS Code is a comprehensive set of measures
that the IMO adopted in response to the threats to ships and port facilities in the wake of the 9/11
attacks on the United States. The ISPS Code requires ships and ports to develop and implement
an approved security plan to prevent, among other things, terrorists hiring on as crew members
and smuggling weapons, explosives and other such contraband into target ports. MTSA-ISPS In-
formation Site, http://www.uscg.mil/hq/g-m/mp/mtsa.shtml.
103. 33 C.F.R. § 160.215. See also 46 C.F.R. subpt. 4-05 (notice requirement in case of a ma-
rine casualty).
104. See 33 US Code § 1228 ("Conditions for entry to ports in the United States"); 33 C.F.R. §
160.107 ("Denial of entry").
11
Conditions on Entry of Foreign-Flag Vessels into US Ports
105. See Hartmut G. Hesse, Maritime Security in a Multilateral Context: IMO Activities to En-
hance Maritime Security, 18 INTERNATIONAL JOURNAL OF MARINE & COASTAL LAW 327, 332-33
(2003).
106. MCDOUGAL & BURKE, supra note 1, at 94, 100-101, 1 14.
107. Id. at 102-103. See also Access to, or Anchorage in, the Port of Danzig, of Polish War Ves-
sels, 1931 P. C.I. J. (ser. A) No. 43, available at http://wwrw.worldcourts.com/pcij/eng/decisions/
1931.12.1 l_danzig/.
1 08. See, e.g., Treaty of Friendship, Commerce, and Navigation, US-Iapan, art. XIX(7), supra
note 30.
109. 1923 Convention and Statute on the International Regime of Maritime Ports, supra note
61, art. 13.
1 10. MCDOUGAL & BURKE, supra note 1, at 100-103. "The coastal state ought to be accorded
relatively complete discretion in deciding upon the permissibility of the entry of [warships into
port]" Id. at 100.
111. "Before a warship enters a foreign port, it is generally required that her State or the naval
officer in command should notify in advance the territorial State of her proposed visit. The num-
ber of warships belonging to the same Power which may remain at the same time in a foreign port
and also the period of their stay is usually regulated by the territorial State." COLOMBOS, supra note
4, § 274, at 262.
112. Japan Sets Sanctions on N. Korea to "Protect the Peace," Associated Press, Oct. 11,
2006, http://www.cnn.eom/2006/WORLD/asiapcf/10/ll/korea.nuclear.japan.ap/index.html//.
Indeed, it has been reported that "the Japanese delegation also proposed that North Korea's
ships ... be turned away from [all] international ports." Betsy Pisik, China Hints Agreement on
North Korea, WASHINGTON TIMES, Oct. 11, 2006, at A01, available at http://www
.washingtontimes.com/world/20061011-120355-5512r.htm.
113. Australia to Ban N. Korean Ships, BBC NEWS (ASIA-PACIFIC), Oct. 16, 2006, http://
news.bbc.co.uk/2/hi/asia-pacific/6054 1 86.stm.
1 14. National Strategy for Maritime Security: Maritime Operational Threat Re-
sponse PLAN, App. B to Annex I (2006).
115. Id., Annex I, at 2.
1 16. Orinoco Steamship Co. Case (US v. Venezuela), Venezuelan Arbitrations of 1903, at 72
(1904),9R.I.A.A. 180(1904).
117. Id. at 95-96, 9 R.I.A.A. 203.
1 18. Exec. Order No. 10,173, §§ 6.04-5 and 6.04-8, 3 C.F.R. pts. 356, 357 (Oct. 18, 1950).
1 19. Canadian Transport Co. v. United States, 663 F.2d 1081, 1083-84 (D.C. Cir. 1980).
120. Canadian Transport Co. v. United States, 430 F. Supp. 1168, 1171 (D.D.C. 1977).
121. Canadian Transport Co., 663 F.2d at 1091.
122. ABT, supra note 59, at 2. See also William H. Parrish, International Cooperation in Com-
bating Terrorism, 6 JOURNAL OF THE INSTITUTE OF JUSTICE & INTERNATIONAL STUDIES 51, 52-
54 (2006) (reprint of Mr. Parrish's presentation).
123. See Flynn, supra note 37, at 70-74.
124. Quoted in Terreri, supra note 38.
125. Al-Qaida Training Manual Shows Seaports Top Target, WORLD NET DAILY, Oct. 30,
2003, http://www.worldnetdaily.com/news/article.asp?ARTICLE_ID=35327 (Osama bin Laden's
terrorist network has focused on seaports as top-level targets for several years).
126. A World Wide Web of Nuclear Danger, ECONOMIST, Feb. 28, 2004, at 25.
127. In April 2004, the UN Security Council agreed on a resolution declaring that all member
States were under an obligation to adopt and enforce laws making it illegal for non-State actors
78
William D. Baumgartner and John T. Oliver
to "manufacture, acquire, possess, develop, transfer, transport, or use nuclear, chemical, biologi-
cal weapons and their means of delivery, in particular for terrorist purposes." S.C. Res. 1540, UN
Doc. S/Res/1540 (Apr. 28, 2004).
128. "Containment and traditional deterrence . . . are clearly no longer adequate to deal with
the new world of terrorists armed with weapons of mass destruction." Binding the Colossus,
ECONOMIST, Nov. 22, 2003, at 25, available at http://www.globalpolicy.org/empire/un/2003/
1120colossus.htm.
129. Note, however, the similar plot twist in Tom Clancy's novel Debt of Honor, where the pilot
of a Japan Airlines 747 intentionally crashes his aircraft into the Capitol building during a joint
session of Congress, killing nearly everyone in the government except the newly named vice
president, Jack Ryan.
130. Haveman et al., supra note 43, at 15-21. See also Flynn, supra note 37, at 60-74; STEPHEN
E. Flynn, The Edge of Disaster: Rebuilding a Resilient Nation (2007).
131. "The United States has long maintained the option of preemptive actions to counter a
sufficient threat to our national security [I]n an age where the enemies of civilization openly
and actively seek the world's most destructive technologies, the United States cannot remain idle
while dangers gather." THE WHITE HOUSE, NATIONAL SECURITY STRATEGY OF THE UNITED
STATES OF AMERICA 15 (2002), available at http://www.whitehouse.gov/nsc/nss.pdf [hereinafter
National Security Strategy].
132. See Ian Brownlie, Principles of Public International Law 701-702 (6th ed. 2003)
(use of forces under the doctrine of preventive self-defense is problematic). See generally, Michael
Byers, Preemptive Self-Defense: Hegemony, Equality, and Strategies of Legal Change, 1 1 JOURNAL
of Political Philosophy 171 (2003).
133. See Sean D. Murphy, The Doctrine of Preemptive Self-Defense, 50 VlLLANOVA LAW REVIEW
699, 706-16 (2005) (discussion of four different schools of thought on the issue).
134. NATIONAL SECURITY STRATEGY, supra note 131, at 15.
135. See Firestone & Corbett, supra note 46, at 431-33; Haveman et al., supra note 43, at
15-21.
136. See 33 C.F.R. § 160.212.
137. See 33 C.F.R. § 160.210. Vessels may submit NOAs electronically on the NVMC website,
available at http://www.nvmc.uscg.gov/.
138. 33 C.F.R. pt. 160. In addition, COTPs have broad authority under the Magnuson Act, 50
US Code §§ 191-98, and the Ports and Waterways Safety Act, 33 US Code §§ 1221-36, to issue
orders and take actions to protect the security and safety of vessels and facilities within their areas
of responsibility.
139. For a comprehensive analysis of various port security initiatives involving the Coast
Guard, see Rachael B. Bralliar, Protecting U.S. Ports with Layered Security Measures for Container
Ships, 185 MILITARY LAW REVIEW 1, 1-68 (2005).
140. President George W. Bush, Remarks by the President to the People of Poland, Wawel
Royal Castle, Krakow, Poland (May 31, 2003), http://www.whitehouse.gov/news/releases/2003/
05/2003053 l-3.html. The PSI concept envisions the interdiction of illicit cargoes in air and land-
transportation modalities, but its greatest focus has been at sea. Michael A. Becker, The Shifting
Public Order of the Oceans: Freedom of Navigation and the Interdiction of Ships at Sea, 46 HAR-
VARD International Law journal 1 31, 134 (2005).
141. Michael Byers, Policing the High Seas: The Proliferation Security Initiative, 98 AMERICAN
Journal of International Law 526, 527-28 (2004).
79
Conditions on Entry of Foreign-Flag Vessels into US Ports
142. Daniel H. Joyner, The Proliferation Security Initiative: Nonproliferation, Counter-
proliferation and International Law, 30 YALE JOURNAL OF INTERNATIONAL LAW 507, 508-09
(2005).
143. See Thomas Ricks & Peter Slevin, Spain and U.S. Seize N. Korean Missiles, WASHINGTON
POST, Dec. 11,2002, at Al.
144. Joyner, supra note 142, at 509.
145. Byers, supra note 141, at 527-28.
146. Press Release, Office of the Press Secretary, White House, Fact Sheet: Proliferation Secu-
rity Initiative, Statement of Interdiction Principles (Sept. 4, 2003), http://www.whitehouse.gov/
news/releases/2003/09/print/20030904- 1 1 .html.
147. Id. See also Ted L. McDorman, An Information Note on the Proliferation Security Initiative
(PSI), 36 Ocean Development & International Law, Oct.-Dec. 2005, at 381, 381-86.
148. See Timothy C. Perry, Blurring the Ocean Zones: The Effect of the Proliferation Security
Initiative on the Customary International Law of the Sea, 37 OCEAN DEVELOPMENT & INTERNA-
TIONAL LAW, Jan.-Mar. 2006, at 33, 33-53; Joyner, supra note 142, at 509. See also Michael Ev-
ans, US Plans to Seize Suspects at Will, TIMES (London), July 11, 2003, at 23.
149. US Customs and Border Protection, New CSI Port Becomes Operational, U.S. CUSTOMS
AND BORDER PROTECTION TODAY, May 2006, http://www.cbp.gov/xp/CustomsToday/2006/
may/new_csi_port.xml.
1 50. Press Release, Office of the Press Secretary, White House, Protecting America's Seaports
and Security Cargo Shipments (Feb. 5, 2004), http://www.whitehouse.gov/news/releases/2004/
02/20040205-4.html (CSI "allows [DHS] to prescreen cargo" before it reaches the United States).
See also Jessica Romero, Prevention of Maritime Terrorism: The Container Security Initiative, 4
Chicago Journal of International Law 597, 597-605 (2003).
151. US Customs and Border Protection, Fact Sheet: Container Security Initiative, (Sept. 30,
2006), http://www.cbp.gov/xp/cgov/border_security/international_activities/csi/csi_in_brief
.xml.
152. Id. See Roach, supra note 101, at 343.
1 53. No such US legal authority currently exists, and there are no serious proponents to adopt
any such proposal. However, if Congress chose to impose such a requirement as a condition of
port entry based on a reasoned national security justification, it would meet the requirements of
international law.
154. When Trade and Security Clash — Container Trade, ECONOMIST, Apr. 6, 2002, at 69.
(There are over 15 million containers in shipment at any one moment. Cargo shipped by con-
tainer constitutes 90 percent of international trade by value).
1 55. See 6 US Code §§ 96 1-68. See also H. Lamar Walters III, Industry on Alert: Legal and Eco-
nomic Ramifications of the Homeland Security Act on Maritime Commerce, 30 TULANE MARITIME
LAW JOURNAL 31 1, 318-19 (2006) ("Customs-Trade Partnership Against Terrorism").
156. "The core technology is called a tamper-resistant embedded controller (TREC). It is
attached to the cargo door of the container and can be programmed, unlike passive or active
radio frequency identification tags. It can detect the opening of the container and can control a
host of sensors located inside .... All this transforms each container into an intelligent and
mobile warehouse." Robert Malone, The Container That Could, FORBES.COM, Aug. 8, 2006,
http://www.forbes.com/2006/08/06/smart-shipping-containers-cx_rm_0808ship.htmRpartner
=yahootix.
157. Larry Greenemeier, IBM Launches Wireless Shipping Security, INFORMATION WEEK,
Sept. 20, 2005, http://www.inf()rmationweck.com/showArticle.jhtnil?articleID= 171000325. Of
course, the early prototypes represent just the first generation of such devices. As more firms enter
80
William D. Baumgartner and John T. Oliver
the competition to develop such hardware and supporting software, improvements are sure to
be forthcoming.
158. Lloyd's List, Freedom and Security: The Dilemma of Vessel Tracking, SECURITYWATCH
.COM, Apr. 28, 2006, http://www.securityinfowatch.com/article/article.jsp?id=7983&siteSection
-386.
159. Id.
160. See Erik Jaap Molenaar & Martin Tsamenyi, Satellite-Based Vessel Monitoring Systems for
Fisheries Management: International Legal Aspects, 15 INTERNATIONAL JOURNAL OF MARITIME &
COASTAL LAW 65, 67 (2000).
161. See 46 US Code § 2101; 33 C.F.R. § 164.46.
162. "Intelligence ... is the first line of defense against terrorists . . . [and such] information
becomes the basis for building MDA." US COAST GUARD, MARITIME STRATEGY FOR HOME-
LAND Security 18 (2002).
163. Pub. L. No. 107-295, § 102(a), 1 16 Stat. 2082 (2002) (codified at 46 US Code § 701 14).
164. Pub. L. No. 108-293, § 803(b), 118 Stat. 1080 (2004) (codified at 46 US Code § 70115).
165. Joe Pappalardo, Federal Agencies Tackle Maritime Security, Ports First, NATIONAL DE-
FENSE, June 2005, at 35, available at http://www.nationaldefensemagazine.org/issues/2005/Jun/
federal_agencies.htm.
166. 46 US Code § 701 14 ("Automated identification systems"); 46 US Code § 701 15 ("Long-
range vessel tracking system").
167. Aliya Sternstein, Coast Guard gets satellite help, FEDERAL COMPUTER WEEK.COM, Nov.
7, 2004, http://www.fcw.com/article84497-ll-07-04-Print.
168. Res. MSC.202(81) and Res. MSC.210(81). See International Maritime Organization,
Long range identification and tracking (LRIT), http://www.imo.org/Safety/mainframe.asp
?topic_id=905 (last visited Dec. 28, 2007).
169. Congress authorized the development and implementation of an LRIT system in 46 US
Code § 701 15, to be fully effective to provide "the capability of receiving information on vessel posi-
tions at interval positions appropriate to deter transportation security incidents" by April 1, 2007.
170. As an example, Australia's zone extends one thousand miles from its coast and involves
the identification of vessels seeking to enter port, as well as vessels merely transiting Australia's
EEZ. See Natalie Klein, Legal Implications of Australia's Maritime Identification Zone, 55 INTER-
NATIONAL & COMPARATIVE LAW QUARTERLY 337, 337-68 (2006).
171. IMO Adopts Comprehensive Security Measures, IMO.org, http://www.imo.org/About/
mainframe.asp?topic_id=583&doc_id=2689 (last visited Dec. 28, 2007). See also Maritime Secu-
rity, IMO.org, http://www.imo. org/Safety/mainframe.asp?topic_id=55 (last visited Dec. 28,
2007).
172. Maritime Transportation Security Act of 2002, Pub. L. No. 107-295, § 102(a), Nov. 25,
2002, 1 16 Stat. 2079 (2002), as amended by Pub. L. No. 109-347, 120 Stat. 1918 (2006) (codified
at 46 US Code § 70108) ("Foreign port assessment").
173. 46 US Code § 70110(a). The Secretary of the Department of Homeland Security (Coast
Guard) is also charged with notifying the foreign country about security deficiencies it has ob-
served at the port. Id. at § 70109(a).
174. 33 C.F.R. pt. 101 ("Maritime Security").
175. 33 C.F.R. § 101.410(b)(5) ("Denial of port entry").
176. 33 C.F.R. § 160.206 ("Information required in an NOA").
1 77. Michael Richardson, Crimes Under Flags of Convenience: In a Depressed Shipping Market,
Poor Nations Sell Flags for Criminal Ventures, 127 MARITIME STUDIES, Nov.-Dec. 2002, at 22,
22-24.
81
Conditions on Entry of Foreign- Flag Vessels into US Ports
178. See 33 US Code § 1228(a)(2) ("Conditions for entry to ports in the United States"); 33
US Code § 1232(e) ("Denial of entry").
179. 46 US Code § 701 1 1(a) ("Enhanced crewmember identification").
1 80. Transportation Worker Identification Credential (TWIC) Implementation in the Mari-
time Sector, Proposed Rules, 71 Fed. Reg. 29,395 (May 22, 2006) (to be codified at 33 C.F.R. pts.
1,20;46C.F.R. pts. 10, 12, 15; and 49 C.F.R. pts. 1515, 1570, 1572.
181. SAFE Port Act of 2006, Pub. L. No. 109-347, §§ 104, 106, 120 Stat. 1884, 1888-91 (2006)
(codified at 46 US Code § 70105).
182. See 8 US Code § 1 182 ("Inadmissible aliens" include persons with criminal records and/
or terrorist affiliations).
1 83. Literally, the French phrase/brce majeure translates as a "greater or superior force." It im-
plies that the consequences were unanticipated and irresistible, such as an "Act of God." BLACK'S
LAW DICTIONARY 645 (6th ed. 1990). Although commonly applied in contract law, id., the prin-
ciple is well established in the law of the sea. "If a ship needs to enter a port or internal waters to
shelter in order to preserve human life, international law gives it a right of entry." CHURCHILL &
LOWE, supra note 7, at 63. See also YANG, supra note 72, at 64-67.
184. According to one recent authority, "all writers agree" that vessels have a right to enter
foreign ports in bona fide cases of force majeure and distress. La Fayette, supra note 6, at 1 1 . A gen-
eral right of access even extends to warships, where one is "obliged to take refuge in a foreign port
by reason of stress of weather or other circumstances offeree majeure" COLOMBOS, supra note 4,
§ 274, at 262-63.
185. See 1982 LOS Convention, supra note 8, arts. 18 and 39.
1 86. Id., art. 98 ("Duty to render assistance"). See also SOLAS Convention, supra note 29, Annex,
ch. 5, regs. 10 & 15a; International Convention on Maritime Search and Rescue, Annex, ch. 2, fflf
2. 1.1, 2.1.4,2.1. 10, Apr.27, 1979, T.I.A.S.No. 11,093, 1405 U.N.T.S.97. Seea/so 14USCode§ 88
("Saving life and property" at sea is a statutory mission of the US Coast Guard).
187. COLOMBOS, supra note 4, § 353, at 329-30. See also MALANCZUK, supra note 2, at 175
(citing as examples ships seeking refuge from a storm or which are severely damaged).
188. See Kate A. Hoff (United States) v. Mexico, 4 R.I.A.A. 444 (1929).
189. Phillip C. Jessup, The Laws of Territorial Waters and Maritime Jurisdiction
194 (1927). See also A.F. de Zayas, Ships in Distress, in 1 1 ENCYCLOPEDIA OF PUBLIC INTERNA-
TIONAL LAW 287-89 (Rudolf Bernhardt ed., 1989).
190. MCDOUGAL & BURKE, supra note 1, at 110. See Christopher F. Murray, Any Port in a
Storm? The Right of Entry for Reasons of Force Majeure or Distress in the Wake of the Erika and the
Castor, 63 OHIO STATE LAW JOURNAL 1465, 1490-91 & n.159 (2002).
191. MCDOUGAL & BURKE, supra note 1 , at 110.
192. Guangzhou Ocean Shipping Co. v. Minister of Transport, Public Works, and Water Man-
agement, 27 Netherlands Yearbook of International Law 354, 357 (1996).
193. See 1982 LOS Convention, supra note 8, art. 98 ("Duty to render assistance"); 46 US
Code § 2304(a). See generally, Arthur A. Severance, The Duty to Render Assistance in the Satellite
Age, 16 California Western International Law Journal 377, 378-93 (2005-06) (discuss-
ing the duty of masters, vessels and coastal States to render assistance to vessels and mariners in
danger of being lost at sea).
194. Canadian Transport Co. v. United States, 663 F.2d 1081, 1083-84 (D.C. Cir. 1980).
195. Id. at 1091.
1 96. I lumanc Society of the United States v. Clinton, 44 F.Supp.2d 260 (Ct. Int'l Trade 1 999).
197. High Seas Driftnet Fisheries Enforcement Act of 1992, Pub. L. No. 102-582, § 101, 106
Stat. -1900 (1992), (codified as amended at 16 US Code § 1826(a)).
82
William D. Baumgartner and John T. Oliver
198. Humane Society, 44 F.Supp.2d at 277-78 (to rule against the government, "the Court
must find that [the Secretary of Commerce] acted arbitrarily, capriciously and not in accordance
with law").
199. Ports and Waterways Safety Act of 1972, Pub. L. No. 92-340 (1972) (codified at 33 US
Code§§ 1221-36).
200. 33 US Code § 1223(b)(1).
201. 33 C.F.R. § 160.107 ("Denial of entry").
202. 33 C.F.R. § 160.1 1 1 ("Special orders apply to vessel operations").
203. Admiral Thad Allen, Commandant, US Coast Guard, The Water Is Different, Address at
the US Naval Institute Port Security Conference (June 7, 2006). "Significant progress has been
made in the continuing maturation of the [MOTR] coordination process . ..." A copy of the
Commandant's entire address is available at http://www.uscg.mil/comdt/speeches/docs/USNI
_NY_06_2006.pdf.
204. See RESTATEMENT, supra note 2, § 403 ( 1 ).
205. 1982 LOS Convention, supra note 8, art. 22(3)(a).
206. Id., art. 41(3). Moreover, any such proposals "shall conform to generally accepted inter-
national regulations." Id., art. 41(2).
207. Id., art. 211(5). See also id., art. 211(6).
208. FAL Convention, supra note 35, art. 1. See FAL Convention, 2002 Amendments, Jan. 10,
2002, 18 U.S.T. 411, 591 U.N.T.S. 265 (entered into force May 1, 2003).
209. For background on the proposal to regulate navigation in the Torres Strait and the legal
issues involved, see Julian Roberts, Compulsory Pilotage in International Straits: The Torres Strait
PSSA Proposal, 37 OCEAN DEVELOPMENT & INTERNATIONAL LAW 93, 94-104 (2006). Several
maritime States objected to various aspects of this proposal. The United States, for example, filed
a diplomatic protest that the Australian regulations violated international law to the extent that it
impeded transit passage to vessels not bound directly for an Australian port. SECSTATE WASH
DC message 091524Z Feb 07 ("Torres Strait Compulsory Pilotage: Third Demarche"). Noting
that "the IMO has not approved a compulsory pilotage scheme for the Torres Strait . . . ," the U.S.
demarche contended that "there is no basis in international law" to impose such a mandatory
scheme on "foreign flag ships exercising the right of transit passage." Id., ^ 5.
210. Nairobi Convention on the Removal of Wrecks (May 18, 2007), IMO.org., http://www
.imo.org/Conventions/mainframe.asp?topic_id= 1 604.
211. Ted L. McDorman, Regional Port State Control Agreements: Some Issues of International
Law, 5 OCEAN & COASTAL LAW JOURNAL 207, 219-22 (2000) ("Access to Ports — Effect of Inter-
national Trade Laws").
212. Mat 222.
83
Ill
Encroachment on Navigational Freedoms
i
Raul (Pete) Pedrozo*
Introduction
was asked to address the following four questions:
• Will there be increasing environmentally oriented measures adopted at the
International Maritime Organization (IMO) that will encroach on navigational
freedoms?
• Will there be increasing coastal State efforts to regulate military- related
activities in the exclusive economic zone (EEZ), citing environmental concerns?
• Will excessive coastal State claims continue to proliferate driven primarily
by resource needs?
• Will continental shelf disputes proliferate as nations attempt to make broad
margin claims beyond 200 nautical miles (nm)?
I believe the unfortunate answer to all four of these questions is most definitely
"yes," and will cite a number of examples supporting my concerns.
IMO Environmental Measures
My criticism of the IMO1 in this article is not intended to disparage all the great
work the IMO has done over the past five decades to improve safety at sea and
* Captain, JAGC, US Navy. The views expressed in this paper are those of the author and do not
represent the official views of the United States government, the Department of Defense or
United States Pacific Command.
Encroachment on Navigational Freedoms
protect the marine environment.2 Conventions, such as the International Conven-
tion for the Safety of Life at Sea (SOLAS),3 the International Convention for the
Prevention of Pollution from Ships and its Protocol (MARPOL 73/78),4 the Con-
vention on the Prevention of Marine Pollution by Dumping of Wastes and Other
Matter (London Dumping Convention)5 and the International Convention on
Standards of Training, Certification and Watchkeeping for Seafarers6 have greatly
enhanced safe, secure and efficient shipping, while at the same time protecting the
marine environment from pollution from ships. However, since the 1990s a grow-
ing concern over marine pollution has put greater pressure on the IMO to adopt
environmentally based routing measures that encroach on traditional freedoms of
navigation guaranteed to all States by the 1982 United Nations Convention on the
Law of the Sea (1982 LOS Convention).7 That pressure, coupled with the IMO's fo-
cus on getting to "yes" — the IMO "spirit of cooperation" — has resulted in the un-
willingness of member States to adequately scrutinize other States' proposals for
fear that their own proposals may not be supported at a later date. In other words,
"you scratch my back and I'll scratch yours." As a result, proposals have been
adopted even though they fail to adequately demonstrate that international ship-
ping poses a serious threat of damage to the area or that additional protective mea-
sures are truly necessary.
In 1995, SOLAS Chapter V was amended to add a new Regulation 1 1 that allows
coastal States to implement compulsory ship reporting systems that are adopted by
the IMO.8 The new regulation entered into force on January 1, 1996. Since 1996,
there has been a proliferation of mandatory ship reporting systems adopted by the
IMO — a total of sixteen. All of the systems were justified, in part, by the coastal
State citing the need to protect the marine environment. Although there was
clearly a demonstrated need for some of these systems, others were adopted with
only minimal scrutiny by the relevant IMO subcommittees and committees that
reviewed the proposals.
In effect, mandatory ship reporting systems are nothing more than prior notice
and consent regimes for ships transiting coastal State territorial seas and EEZs. De-
spite long-standing US policy regarding the invalidity of such regimes, the US dele-
gation did not oppose the establishment of any of these systems. In fact, the United
States had its own mandatory ship reporting system adopted by the IMO in 1998 to
protect the northern right whale from the danger of collision with ships off the US
East Coast. The reporting system, which was vehemently opposed by the US De-
partment of Defense (DoD) in the interagency process, became operational in
1999.
There has similarly been a proliferation of IMO-approved particularly sensitive
sea areas (PSSA). A PSSA is an area that needs special protection through action by
86
Raul (Pete) Pedrozo
the IMO because of its significance for recognized ecological (unique or rare eco-
system, diversity of the ecosystem, or vulnerability to degradation by natural events
or human activities) or socioeconomic (significance of the area for recreation or
tourism) or scientific (biological research or historical value) reasons, and which
may be vulnerable to damage by international maritime activities. Guidelines for
designating PSSAs are contained in IMO Assembly Resolution A.982(24).9 When
an area is approved as a PSSA, associated protective measures are adopted to con-
trol maritime activities in the area. Such measures can include areas to be avoided
(ATBA), mandatory ship reporting or mandatory ship routing systems, no anchor-
age areas, establishment of vessel traffic services and other IMO-approved routing
measures.
The first PSSA — the Australian Great Barrier Reef — was designated in 1990.
The Great Barrier Reef was clearly an area that warranted designation as a PSSA.
However, since 1990 there has been a proliferation of PSSA designations. The ten
additional PSSAs that have been designated since 1990 are Sabana-Camagiiey Ar-
chipelago, Cuba (1997); Malpelo Island, Colombia (2002); Florida Keys, United
States (2002); Wadden Sea, Denmark, Germany and the Netherlands (2002);
Paracas National Reserve, Peru (2003); Western European Waters (2004); extension
of the Great Barrier Reef PSSA to include the Torres Strait (2005); Canary Islands,
Spain (2005); Galapagos archipelago, Ecuador (2005); and Baltic Sea Area, Den-
mark, Estonia, Finland, Germany, Latvia, Lithuania, Poland and Sweden (2005).
The Malpelo Island PSSA is a perfect example of how the IMO "spirit of cooper-
ation" can lead to bad results. The Colombian proposal was initially justified on the
need to curtail illegal fishing in and around Malpelo Island — clearly not an ade-
quate basis for a PSSA designation under A.982(24). Although the proposal was
initially rejected, "interested States" assisted Colombia in revising its proposal to
meet the requirements of A.982(24). The proposal was resubmitted and approved
by the IMO the next year.
I would be remiss if I did not take the opportunity at this juncture to say that
the United States is its own worst enemy in this area. The United States has re-
cently submitted a proposal to the IMO to designate the Northwestern Hawaiian
Islands Marine National Monument as a PSSA. Again, this was done over stren-
uous DoD objection in the interagency review process. If adopted by the IMO, it
will become the largest PSSA in history, encompassing over 140,000 square miles
of ocean space. Even though the monument is already protected by six ATBAs that
were adopted by the IMO in 1980, the United States is proposing expanding the
ATBAs and adding a ship reporting system around the entire monument.10 In my
opinion, the US proposal fails to demonstrate that international shipping poses a
threat of damage to the area, demonstrate that additional protective measures are
87
Encroachment on Navigational Freedoms
necessary, establish that the size of the area is commensurate with that necessary to
address the identified need and address how these measures will be monitored and
enforced.11
Another area of concern is the issue of compulsory pilotage in international
straits. Previous efforts at the IMO to adopt such measures in straits used for inter-
national navigation have failed. However, on October 6, 2006, Australia imple-
mented a compulsory pilotage scheme in the Torres Strait. Although the scheme is
purportedly being implemented as a condition of port entry, failure to comply with
the mandatory pilotage requirement can be enforced against ships transiting the
strait the next time the ship enters an Australian port.12 Several States, including
the United States and Singapore, have filed diplomatic protests indicating that the
regime is inconsistent with international law because it interferes with the right of
transit passage through the strait. The United States, Singapore and other States
maintain that the scheme is also inconsistent with the decision of the IMO Mari-
time Environment Protection Committee (MEPC) that adopted the measure. The
MEPC resolution clearly states that it "recommends that Governments . . . inform
ships flying their flag that they should act in accordance with Australia's system of
pilotage . . . ."13 Additionally, the intervention of the US delegation at the Fifty-
Third Session of the MEPC stated that the MEPC resolution did not provide an
"international legal basis for mandatory pilotage for ships in transit in this or any
other strait used for international navigation."14 This statement was supported by
several other delegations.15
Perhaps the following quote from a Danish delegate sums up how the IMO will
balance environmental protection and navigational freedoms in the future: "The
failure of the IMO to shift focus in order to adapt to international opinion and cur-
rent international priorities that go beyond freedom of the oceans and embrace
coastal state environmental interests is regrettable."16 I would suggest that this is
not an isolated position. There are a number of nations, as well as some individuals
within the US government, that think the same way.
Environmental Encroachment in the EEZ
The EEZ is a creature of the 1982 LOS Convention and was created for the pur-
pose of giving coastal States greater control over the resources adjacent to their
coasts out to 200 nm.17 Coastal States were also granted jurisdiction over artifi-
cial islands and structures, marine scientific research and protection of the envi-
ronment in the EEZ.18 Unfortunately, over the years, some coastal States have
attempted to expand their influence in the EEZ by attempting to exercise control
over non-resource-related activities, including many military activities. This
88
Raul (Pete) Pedrozo
encompasses a large area of the ocean that a little over twenty years ago was con-
sidered to be high seas. This is particularly true in the Asia-Pacific region, where
there are a number of overlapping 200 nm zones.19
The fact that some coastal States have attempted to impinge on traditional uses
of the EEZ is of particular concern to the Department of Defense. Some recent
examples of interference with US military activities in the EEZ based on, inter
alia, resource-related and environmental concerns include Chinese challenges to a
US military survey vessel in the Chinese- claimed EEZ, Indian challenge to a US mili-
tary survey vessel in the Indian-claimed EEZ, Malaysian and Indonesian opposi-
tion at the Association of Southeast Asian Nations Regional Forum meeting in
Manila to a proposal by Singapore to conduct a maritime security exercise in the
Indonesian EEZ, Indonesian challenge to a US warship operating in the Indone-
sian EEZ, and Burmese and Indian interference with a US military aircraft in their
respective flight information regions.
There are also regional efforts under way to establish guidelines for military ac-
tivities in the EEZ that are clearly inconsistent with international law. The most re-
cent example is the Nippon Foundation/Ocean Policy Research Foundation
Guidelines, which were developed between 2002 and 2005 by a group of individu-
als acting in their personal capacities.20 The purported need for these non-binding
voluntary principles is that naval activities at sea are expanding at the same time
that coastal States are attempting to exercise increasing control over their EEZs.
These opposing trends, it is argued, will result in a higher frequency and intensity
of incidents and guidelines are therefore necessary to de-conflict maritime and
coastal State interests in the EEZ. Some of the principles outlined in the Nippon
Foundation guidelines that have absolutely no basis in international law include:
• Military activities in the EEZ should not
• stimulate or excite the defensive systems of a coastal State;
• collect information to support the use of force against a coastal State;
or
• involve deployment of systems that prejudice the defense or security
of a coastal State, or interfere with or endanger the right of the coastal State
to protect and manage its resources and environment.
• Major military exercises in the EEZ should be prenotified to the coastal State
and the coastal State should be invited to observe the exercise.
• Military exercises should be limited to the adjacent high seas.
• Military activities should not cause pollution or negatively affect the marine
environment or marine living resources, including marine mammals.
89
Encroachment on Navigational Freedoms
• There should be no live fire of weapons, underwater explosions or creation
of sound waves that may harm marine life or cause marine pollution.
• There should be no military activities in marine parks and marine protected
areas.21
Although the Nippon Foundation guidelines are non-binding in nature, they
should be of great concern to all maritime nations.
Excessive Claims Driven by Resource Needs
There are a number of island disputes and excessive maritime claims in the Asia-
Pacific region that are driven, in part, by resource needs. The fact that China and
Japan are involved in many of these disputes is understandable when one recog-
nizes that China is the world's second-largest energy consumer and Japan is the
fourth (and the world's second-largest energy importer).
Some of the more prominent island disputes include22
• Liancourt (Takeshima/Dokdo) Rocks (Japan and Republic of Korea
(ROK)),
• Senkaku/Diaoyu Islands (Japan, China and Taiwan),
• Spratly Islands (China, Taiwan, Vietnam, the Philippines, Malaysia and
Brunei),
• Paracel Islands (China, Taiwan and Vietnam),
• Kuril Islands (Russia and Japan) and
• Natuna Islands (Indonesia and China).
Liancourt Rocks (Takeshima/Dokdo) are claimed by both Japan and the Re-
public of Korea. The ROK has occupied the rocks, located 87.4 kilometers (km)
from Ulleungdo Island (ROK) and 157.5 km from the Oki Islands (Japan), since
1954 and maintains a police station, lighthouse and helicopter pad. The rocks are
surrounded by rich fishing grounds and potential mineral resources. The ROK
maintains that the EEZ median line should be between Ulleungdo and the Oki Is-
lands. Japan maintains that the median line should be between the Liancourt
Rocks and Ulleungdo Island. Talks between the two governments have been ongo-
ing since 1996, with four rounds between 1996 and 2000, and two rounds in 2006.
To date, no resolution has been reached and the ROK has refused third-party inter-
vention (e.g., International Court of Justice, International Tribunal for the Law of
the Sea, etc.).
The Senkaku (Japan)/Diaoyu (China) Islands are claimed by China, Japan and
Taiwan. The islands, located about 120 nm northeast of Taiwan, lie astride key
90
Raul (Pete) Pedrozo
shipping routes and oil reserves and have been the source of a century-old dispute.
Currently, the issue is linked to the ongoing EEZ and continental shelf dispute be-
tween China and Japan. The continental shelf dispute is over delimitation princi-
ples; China claims natural prolongation, while Japan claims equidistance and has
proposed a median line as the demarcation line for the respective EEZs and conti-
nental shelves. The Shirakaba oil field straddles Japan's proposed median line.
China began oil and gas development west of the proposed median line in the
1980s. However, with China's development of the Shirakaba oil field, the EEZ dis-
pute has become more prominent. Additionally, when Japan promulgated its law
on the EEZ and continental shelf in 1996 to include the Senkakus/Diaoyus, incur-
sions by Chinese oil exploration vessels, warships and ocean research vessels into
Japan's claimed EEZ around the Senkaku/Diaoyu Islands increased. Bilateral talks
between the two countries have been on-again, off- again since 2004, with three un-
successful rounds in 2005. Talks resumed in 2006, but again failed to reach a reso-
lution. In the short term, Japan wants China to stop drilling and has proposed a
joint project. China has rejected Japan's demands to suspend exploration, indicat-
ing that it is developing resources in an area that is not in dispute.
The Spratly Islands consist of well over one hundred islands, cays, reefs and
shoals scattered over an ocean area of nearly five hundred thousand square miles in
the center of the South China Sea.23 Although most of the islets that make up the
Spratlys are uninhabitable, they lie astride some of the most important and busiest
maritime routes in the world. The waters surrounding the Spratlys are also poten-
tially rich in hydrocarbon and mineral deposits, and contain some of the region's
most abundant fishing grounds. Since 1950, the South China Sea has been one of
the world's most productive offshore oil- and gas-producing areas. Over thirty oil
and natural gas fields have been developed in the region by the various littoral
States.24
The Spratlys are claimed in their entirety by China, Taiwan and Vietnam and in
part by Brunei, Malaysia and the Philippines.25 At least forty- three of the fifty-one
major islets in the Spratlys are occupied by five of the six claimants.26 Each claimant
has offered separate justifications for its claim, including historic title, discovery,
occupation, maritime law, and proximity and indispensable need.27 The historical
claims of China and Taiwan are the most substantive in terms of abundance and
time. However, neither claimant has exercised effective, continuous and undis-
puted peaceful control over the entire region. Only Japan has effectively, albeit
temporarily, occupied the disputed islands, from 1939 until its defeat in 1945.
However, following World War II, Japan was forced to renounce its claims to the
Spratlys and the Paracels in the San Francisco Treaty of Peace (1951). Unfortu-
nately, a successor sovereign was not designated in the treaty.28
91
Encroachment on Navigational Freedoms
Similarly, the Paracel Islands lie astride rich fishing grounds and potential oil
and gas deposits. The islands are claimed by China, Taiwan and Vietnam, and have
been occupied by China since 1974 when Chinese military forces expelled the
South Vietnamese garrison from the islands. Vietnam, however, has not aban-
doned its claim, reaffirming its position on April 11, 2007. 29
The Kuril Islands have been the source of a dispute between Russia and Japan
since the end of World War II. Prior to the war, Japan occupied the southern por-
tion of Sakhalin Island and all of the Kuril Islands from Hokkaido to the
Kamchatka Peninsula. Following Japan's defeat in 1945, Russia occupied all of
Sakhalin Island and all of the Kurils down to Hokkaido. Japanese fishermen, how-
ever, have continued to fish in Russian-claimed waters around the islands. In Au-
gust 2006, a Japanese fisherman was killed after a Russian border patrol boat fired
on a Japanese fishing vessel in disputed waters north of Hokkaido. The boat was
seized and its three surviving crew members were taken to Kunashir Island, one of
the Northern Territory islands controlled by Russia.30
Global warming and the world's insatiable appetite for more resources have
brought a renewed focus on the Arctic. The thawing of the polar ice is opening the
Arctic, creating access to new shipping routes, creating new fishing grounds, pro-
viding new tourism opportunities, and allowing exploitation of new oil and gas
fields. A recent US Geological Survey report concluded that 25 percent of the
world's energy reserves lie north of the Arctic Circle.31 Record energy prices, cou-
pled with the melting ice cap, are therefore creating renewed interests in projects
that had not been considered cost-effective.
This increased attention on Arctic resources has brought several territorial dis-
putes to the forefront, including a disagreement between Russia and Norway over
the Barents Sea, a disagreement between Russia and the United States over the Be-
ring Sea, a disagreement between Canada and Denmark over Hans Island, and a
disagreement between Canada and the United States over the Beaufort Sea. As Arc-
tic oil and gas become more readily available, it is likely that the territorial claims
and tension between the various claimants will increase.
The Bering Sea is home to the oil-rich Navarin Basin and is rich in pollock,
salmon, halibut and crab. It yields nearly 50 percent of the US seafood catch and
nearly one-third of Russia's seafood catch. Fishing opportunities will increase as
sea ice cover begins later and ends sooner in the year as a result of global warming.
There have been ongoing discussions between the United States and Russia since
1981 in an effort to agree on a maritime boundary. The issue was apparently re-
solved on June 1, 1990 when the United States and Russia signed a maritime
boundary agreement. The agreement was submitted to the US Senate for advice
and consent and to the Russian Duma for ratification. However, before the Duma
92
Raul (Pete) Pedrozo
could act, the Soviet Union collapsed. Russian officials now say that the proposed
boundary agreement gives the United States too much of the Bering Sea's fish
stocks. The Russians want to use the rhumb line (as opposed to the great circle
path) as the boundary. The difference in area using the rhumb line or the great cir-
cle path is over twenty- thousand square miles.32
The Beaufort Sea also contains significant energy resources. Although it is cur-
rently frozen year-round, increasing temperatures are expected to open the Beau-
fort Sea to oil and gas exploration (and increased fishing) in the future. The
Beaufort Sea is claimed by both the United States and Canada.
Continental Shelf Disputes
As discussed above, the Arctic contains an estimated 25 percent of the world's en-
ergy reserves. Competing continental shelf claims exist among Denmark, Canada,
United States, Russia and Norway. The Russian submission to the Continental
Shelf Commission, for example, claimed nearly half of the Arctic Ocean. The Rus-
sian claim clearly overlaps portions of the Arctic that the United States could claim.
In August 2006, the Canadian Prime Minister announced a series of measures to
secure Canada's sovereignly claims in the Arctic, including plans to construct a
deepwater port for submarines on Baffin Island near Iqaluit; build three military
icebreakers; install underwater sensors in Arctic waters to detect foreign subma-
rines; and station unmanned aerial vehicles and more aircraft in Yellowknife to
carry out regular surveillance of the northern region.33
The Arctic is not the only place where we see continental shelf disputes brewing.
For example, encroachment by India and Burma (i.e., surveys and overlapping gas
blocks in the Bay of Bengal) on the Bangladeshi continental shelf has created great
concern in the Bangladesh Ministry of Defense. The Foreign Minister has been
quoted as saying that no one will be allowed to explore hydrocarbon within Ban-
gladesh's EEZ without permission.34
Conclusion
Military organizations need to do a better job both domestically and at the IMO to
ensure proposed measures are really necessary to address the stated environmental
and safety of navigation threats and concerns. The focus must be on protecting
military equities by ensuring that proposals are consistent with the 1982 LOS Con-
vention and that the balance between coastal State and user State interests is prop-
erly maintained.
93
Encroachment on Navigational Freedoms
In order to preserve operational and training flexibility, militaries must con-
tinue to operate in foreign EEZs without coastal State notice or consent. Con-
ducting lawful military activities in foreign EEZs avoids adverse precedents and
preserves navigational rights and freedoms for all ships and aircraft.
It is inevitable that resource needs will result in excessive coastal State claims
and increasing confrontations at sea. The same is true for continental shelf disputes
among the broad-margin States in the Arctic and elsewhere. Although the underly-
ing territorial or maritime boundary disputes may not be resolvable in the near
term, joint development may provide a short-term solution that defuses tensions
and allows for peaceful exploitation of resources.
Notes
1 . The author served as the DoD representative to the US delegation to the IMO from 1995
to 2001. He was a member of the US delegation to numerous meetings of the IMO Assembly,
Maritime Safety Committee, Legal Committee, Facilitation Committee, Sub-committee on
Safety of Navigation and the Sub-committee on Dangerous Goods, Solid Cargoes and Con-
tainers. He also served as the Chairman of the IMO Working Group that drafted the IMO Guide-
lines for the Suppression of Illegal Transport of Migrants by Sea.
2. Convention on the Intergovernmental Maritime Consultative Organization, Mar. 6,
1948, 9 U.S.T. 621, T.I.A.S. 4044, 289 U.NT.S. 48. The Convention entered into force in 1958.
The IMO first met in 1959. The organization was originally called the Intergovernmental Mari-
time Consultative Organization (IMCO), but changed its name in 1982 to the IMO.
3. International Convention for the Safety of Life at Sea, Nov. 1, 1974, 32 U.S.T 47, 164
U.NT.S. 113, available at http://www.imo.org/Conventions/contents.asp?topic_id=257&doc_id
=647.
4. Nov. 2, 1973, 1313 U.NT.S. 3. The Convention was modified by the Protocol of 1978
Relating to the International Convention for the Prevention of Pollution from Ships, Feb. 17,
1978, 1340 U.NT.S. 184. The MARPOL Convention is the main international convention gov-
erning the prevention of pollution of the marine environment by vessel operations or vessel acci-
dents. It consists of two treaties adopted in 1973 and 1978 and has been updated by amendments
through the years. See International Convention for the Prevention of Pollution from Ships,
http://www.imo. org/conventions/contents.asp?doc.id=678&topic_id=258 (last visited Feb. 7,
2008).
5. Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other
Matter, Dec. 29, 1972, 26 U.S.T. 2403, 1046 U.NT.S. 120.
6. International Convention on Standards of Training, Certification and Watchkeeping for
Seafarers, July 7, 1978, available at http://www.imo. org/conventions/contents.asp?doc_id=651
&topic_id=257.
7. United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 3 [here-
inafter 1982 LOS Convention].
8. A similar amendment was made in 1996, adding a new Regulation 10 which allows for
coastal States to implement compulsory ship routing systems adopted by the IMO. The new reg-
ulation entered into force on January 1, 1997 and allows coastal States to channelize maritime
94
Raul (Pete) Pedrozo
traffic based on cargo or category of ship. Since 1997, three mandatory ship routing systems have
been adopted by the IMO.
9. Revised Guidelines for the Identification and Designation of Particularly Sensitive Sea
Areas, IMO Assembly Resolution A.982, 24th Session, Agenda Item 11, available at http://
www.imo.org/includes/blastDataOnly.asp/data_id%3D14373/982.pdf.
10. The ship reporting system will be mandatory for ships bound for US ports and recom-
mendatory for ships not bound for US ports.
1 1 . Neither the US Coast Guard nor the National Oceanic and Atmospheric Administration
have the assets to monitor and enforce the proposed PSSA.
12. A fine of up to one hundred thousand Australian dollars can be imposed for failure to
take on a pilot. [Australian Government] Marine Notice 8/2006 (May 16, 2006), as amended by
Marine Notice 16/2006 (Oct. 3, 2006), available at http://www.amsa.gov.au/Shipping_Safety/
Marine_Notices/2006/Marine_Notice_16-2006.asp.
13. Designation of the Torres Strait as an Extension of the Great Barrier Reef Particularly
Sensitive Sea Area, IMO Resolution MEPC.133(53), July 22, 2005, para. 3, available at http://
www.imo.org/includes/blastDataOnly.asp/data_id%3D18030/133%2853%29.pdf.
14. MEPC 53 Delegation Report, Report of the IMO Marine Environment Protection Com-
mittee (MEPC), London, 53rd Session para. 3A, July 18-22, 2005, available at http://www.uscg
.mil/hq/g-m/mso/docs/MEPC53_report_cable.doc.
15. Id.
16. Author's notes taken at a meeting of the MEPC.
17. 1982 LOS Convention, supra note 7, Part V.
18. Id., art. 56.
19. In the Asia-Pacific region, there are nine nations that assert excessive coastal State juris-
diction in their EEZs: India, Indonesia, Malaysia, China, Burma, Bangladesh, North Korea, Mal-
dives and Mauritius. See UNDER SECRETARY OF DEFENSE FOR POLICY, MARITIME CLAIMS
REFERENCE MANUAL, DoD 2005. 1-M, June 23, 2005, http://www.dtic.mil/whs/directives/corres/
html/2005 lm.htm.
20. EEZ Group 21, Ocean Policy Research Foundation, Guidelines for
NAVIGATION AND OVERFLIGHT IN THE EXCLUSIVE ECONOMIC ZONE, Sept. 16, 2005, available at
http://www.sof.or.Jp/en/report/index.php#0509; then follow Guidelines for Navigation and
Overflight in the Exclusive Economic Zone hyperlink.
2 1 . That begs the question — what about military activities and exercises in a PSSA? Remem-
ber, the Northwestern Hawaiian Islands PSSA, if adopted by the IMO, will encompass over
140,000 square miles of ocean space.
22. The United States does not take a position on the question of the ultimate sovereignty of
any of these islands, but expects that the claimants will resolve their differences through peaceful
means.
23. Richard D. Fisher Jr., Brewing Conflict in the South China Sea, THE HERITAGE
FOUNDATION ASIAN STUDIES CENTER, Oct. 25, 1984, at 3, available at http://www.heritage.org/
Research/AsiaandthePacific/upload/905 17_l.pdf. The Spratly archipelago encompasses nearly
38 percent of the waters of the South China Sea. THE PHILIPPINES AND THE SOUTH CHINA SEA
ISLANDS: OVERVIEW AND DOCUMENTS 8 (Neil F. R. Ferrer ed., 1993) [hereinafter OVERVIEW
and Documents].
24. Zhiguo Gao, The South China Sea: From Conflict to Cooperation?, 25 OCEAN DEVELOP-
MENT and International Law 345 (1994).
95
Encroachment on Navigational Freedoms
25. Brunei only claims a fishing zone in the southern reef. Omar Saleem, The Spratly Islands
Dispute: China Defines the New Millenium, 15 AMERICAN UNIVERSITY INTERNATIONAL LAW RE-
VIEW 527, 576 (2000).
26. China (6), Malaysia (3), Philippines (8), Taiwan (1) and Vietnam (25). Gao, supra note
24, at 347.
27. Overview and Documents, supra note 23, at 20.
28. Id.
29. Vietnam claims sovereignty over Paracel, Spratly Islands, ORGAN OF THE MILITARY
Central Commission and Vietnamese Ministry of National Defense, April 12, 2007,
http://www.qdnd.vn/army/vietnam.Policy-Society.pnews.5605.qdnd.
30. Richard Lloyd Parry, Fisherman shot dead for sake of a haul of crab in islands dispute,
TIMES (London), Aug. 17, 2006, at 31, available at http://www.timesonline.co.uk/tol/news/world/
asia/article61 1347.ece.
31. US Geological Survey Fact Sheet, Assessment of Undiscovered Oil and Gas Resources of
the East Greenland Rift Basins Province, Aug. 2007, available at http://pubs.usgs.gov/fs/2007/
3077/ pdf/FS07-3077_508.pdf.
32. For a history of the boundary dispute with Russia and the negotiation of the 1990 mari-
time boundary agreement, see John H. McNeill, America's Maritime Boundary with the Soviet
Union, NAVAL WAR COLLEGE REVIEW, Summer 1991, at 46, reprinted in READINGS ON INTER-
NATIONAL Law from the Naval War College Review 1973-1994, at 219 (John Norton
Moore & Robert F. Turner eds., 1995) (Vol. 68, US Naval War College International Law
Studies).
33. The measures announced by Prime Minister Harper were those contained in the "Can-
ada First" defense plan of the Conservative Party during the 2005/2006 election campaign. For
the details of the measures, see Dianne DeMille & Stephen Priestley, Stephen Harper announces
the new defence policy put forward by the Conservative Party of Canada, CANADIAN AMERICAN
STRATEGIC REVIEW, Dec. 2005, http://www.sfu.ca/casr/ft-harperl-l.htm.
34. Dhaka won't allow anyone to explore hydrocarbon within its maritime boundary, SHWE
GAS MOVEMENT, May 16, 2006, http://www.shwe.org/docs/dhaka-won-t-allow-anyone-to-explore
-hydrocarbon-within-its-maritime-boundary.
96
IV
China and the Law of the Sea: An Update
Guifang Xue*
Introduction
This article examines the practice of the People's Republic of China with re-
spect to the 1982 United Nations Convention on the Law of the Sea (1982
LOS Convention).1 Two principal areas will be assessed: China's efforts to accom-
modate the challenges of the Convention to its ocean domain as a coastal State and
its major maritime legislation to implement the Convention regime. The analysis
begins with a brief introduction of China's maritime features and a review of its
basic stance toward the Convention. This is followed by a discussion of the major
challenges China encountered while establishing its ocean domain based on the
Convention regime. China's efforts in implementing the 1982 LOS Convention
through national legislation are examined to assess the consistency of that statu-
tory framework with Convention requirements. Finally, conclusions are drawn
from China's law of the sea practice. It is shown that China, for its part, has been
accelerating domestic procedures with a view to enabling it to comply with Con-
vention requirements. However, China's maritime practice has not been wholly
consistent with Convention provisions. At the same time, China's oceans policy
adjustments indicate a move away from its previous position as solely a coastal
* Director and Professor, Institute for the Law of the Sea, Ocean University of China. The views
expressed herein are solely those of the author and do not necessarily reflect those of the
government of the People's Republic of China. Part of this article is built on the author's
previous work entitled China and International Fisheries Law and Policy, published by Martinus
Nijhoff Publishers in 2005. Those portions are reprinted with the permission of Koninklijke Brill
NV.
China and the Law of the Sea: An Update
State to that of a maritime State. To that end, China needs to set priorities to im-
prove its overall management capacity and to bring its maritime practice into
alignment with the requirements of the 1982 LOS Convention.
China's Maritime Features and Basic Stance on the 1982 LOS Convention
China is situated in the eastern part of the Asian continent with a land territory of
9.6 million square kilometers, which ranks it as the third-largest State in the world.
As a developing country with a population of 1.3 billion, China faces an enormous
task to feed more than one quarter of the world's population on 7 percent of the
world's arable land. China's overriding national policies call for economic expan-
sion to meet the basic and growing needs of its huge population. In the last two de-
cades, China has experienced tremendous economic growth, but the limited
terrestrial resources hinder its further development. With a soaring increase in
population and gradual reduction of land resources, China has turned to the ocean
for marine resources to ease the pressure on insufficient land-based resources.
From north to south, China borders an internal sea — the Bohai Sea — and three
semi-enclosed seas — the Yellow Sea, the East China Sea, and the South China Sea
(hereinafter called the China Seas).2 China has a coastline of more than eighteen
thousand kilometers, more than 6,500 offshore islands and an island coastline of
over fourteen thousand kilometers. In the early 1990s, China embarked on a "Blue
Revolution" to develop the "Blue Economy," and this practice has continued into
this century. China has eleven coastal provinces and municipalities that cover an
area of 1.3 million square kilometers, account for 14 percent of the country's land-
mass in total, but support 44.7 percent of its population and generate 60 percent of
the nation's gross domestic product.
As a land power, China did not focus as much attention as it should have on the
sea or sea power. In its long history, the foreign invasions China suffered came
mostly from the sea. Those bitter experiences made maritime security issues its
major concern.3 Its participation in the Third United Nations Conference on the
Law of the Sea (UNCLOS III) and the maritime practices of its neighbors kindled
China's interest in the seas.4 In UNCLOS III, China made its first contribution to
the creation of a new international convention — the 1982 LOS Convention.
China signed the 1982 LOS Convention on December 10, 1982, the very day it
was opened for signature, and was eager to enjoy the maritime rights and interests
attached to the new regime.3 However, as a coastal State bordering three semi-
enclosed seas, China found itself disadvantaged in embracing the full entitlement un-
der the Convention. It had to deal with overlapping boundaries with its neighbors
opposite or adjacent to its own coast and within four hundred nautical miles (nm).
98
GuifangXue
In contrast to the worldwide acceptance of the Convention's exclusive economic
zone (EEZ) regime, China hesitated to implement it.6 Overall, China considers the
conclusion of the 1982 LOS Convention a concrete step toward the establishment
of a new international legal order for the oceans, and is interested in both the legal
and economic aspects of the Convention, as well as the political implications the
Convention is bringing about.7 On the other hand, China is not satisfied with those
articles of the Convention pertaining to innocent passage, the definition of the
continental shelf, boundary delimitation of the EEZ and continental shelf, and the
international deep seabed regime.
After years of debating the advantages and disadvantages, China ratified the
Convention in May 1996 and established its EEZ at the same time. The ratification
makes it possible for China to claim its sovereign rights and jurisdiction over three
million square kilometers of maritime space to which it is entitled under the 1982
LOS Convention. It provides China with a vital opportunity to develop its "Blue
Economy," the best way to secure its national interests and the impetus to consoli-
date its links with the world. The Convention also enabled China to take part in
global marine affairs and, more importantly, to pursue a sustainable development
strategy consistent with that universal instrument. However, while implementing
the Convention regime, China has encountered a series of challenges.
1982 LOS Convention Challenges Encountered by China
Since the 1 982 LOS Convention was signed, the EEZ concept has been firmly estab-
lished in customary international law. By the time the Convention finally came
into force in 1994, more and more States had started to define the limits of their
maritime zones and had started negotiations to settle maritime boundary disputes
with their neighbors. This is also the case with the China Seas, where all the coastal
States bordering those seas have made unilateral assertions of jurisdiction over ex-
tensive areas of offshore waters, including full 200-nm EEZ claims.8 However, no-
where in the Yellow Sea does the distance between opposing coastlines reach 400
nm. Most of the East China Sea is less than 400 nm in width. Any unilateral claim of
a full EEZ or continental shelf would create substantial overlaps.
China is adjacent or opposite to eight neighboring countries surrounding the
China Seas (the two Koreas, Japan, Vietnam, Malaysia, the Philippines, Brunei
Darussalam and Indonesia).9 These States vary greatly in size, geographical config-
uration, social and cultural structures, and economic and political systems, but
many of them have contested sovereignty claims or sovereign rights to different
parts of the seas, particularly some islands of the South China Sea.10 The semi-
enclosed seas surrounding these States provide not only distinctive ecosystems and
99
China and the Law of the Sea: An Update
abundant resources, but also a unique social and political environment. The geograph-
ical proximity and the confluence of myriad social and political factors, including his-
torical legacy, different social systems and ideology, and international politics, have
made the relationships among the China Seas' States complex over the last century.11
The situation is further complicated by disputes over the ownership of some un-
inhabited islands and the boundary delimitation of the continental shelf.12 Of the
disputed island claims concerning China, the status of the Xisha (Paracel) Islands
and the Nansha (Spratly) Islands have been the most serious and have resulted in
several clashes involving military action between China and Vietnam.13 China also
has maritime disputes regarding the ownership of the Diaoyu/Senkaku Islands
with Japan; these show no sign of settlement in the near future. These disputes con-
cern sovereignty over offshore islands that are valuable to the owners because of
their locations, rather than their physical usefulness. The State that successfully es-
tablishes ownership of the islands gains enormous jurisdictional rights over the
surrounding seas by establishing an EEZ.
Prompted by the problems of boundary delimitation with its maritime neigh-
bors, China has shown a keen interest in continental shelf issues, as they involve
China's vital interests. China's fundamental position is that the continental shelf is
the natural prolongation of the coastal State, which defines, according to its spe-
cific geographical conditions, the limits of that portion of the continental shelf ex-
tending beyond its territorial sea or EEZ that is under its exclusive jurisdiction. The
maximum limits of such a continental shelf may be determined among States
through consultations. The progress, however, has been extremely slow due to the
different principles the concerned parties employ for the delimitation, as well as
the geophysical nature of the seabed at issue.14 South Korea argues for the median
line in the Yellow Sea and part of the East China Sea, but relies on the doctrine of
natural prolongation in the northeastern part of the East China Sea because in that
area the continental shelf extends 200 nm beyond the baseline of its territorial sea.
Carrying on with the doctrine of natural prolongation, China maintains that the
Okinawa Trough is a natural boundary between itself and Japan. Understandably,
Japan has denied this characteristic and insisted on the application of the equidis-
tance principle.
In addition to the dispute over the ownership of islands and overlapping claims
over maritime zones, China also has to deal with the competing interests over nat-
ural resources, living and non-living, with some of its neighboring States, particu-
larly Japan, Korea and Vietnam. Prospects for resolution of these issues are limited
due to their profound impact and critical consequence, plus the political relation-
ship among these States. Over the years China has made a number of efforts to ad-
dress disputes with its maritime neighbors, but these overtures have led to the
100
GuifangXue
conclusion of only a few bilateral agreements (mainly pertaining to the settlement
of fisheries conflicts), e.g., those with Japan, South Korea and Vietnam. However,
the situation in the South China Sea has not changed much. The intensified com-
petition for fisheries resources has even resulted in clashes between fishermen
themselves, and between fishermen of one State and maritime forces of another.15
These clashes have often resulted in the loss of property and life.16 As a conse-
quence, the South China Sea has become a site of tension and potential conflict.
This has made access to those waters somewhat dangerous and problematic.
Besides a host of maritime challenges, the South China Sea has also been an im-
portant consideration for China's defense and security.17 The South China Sea is of
strategic importance to China, not only owing to its resources, but also for its loca-
tion and value for transportation. In addition to a distinct ecosystem and rich natu-
ral resources, such as oil and gas, the South China Sea is one of the world's busiest
international sea lanes. It serves as a maritime superhighway with more than half of
the world's supertanker traffic and over half of the world's merchant fleet passing
through those waters every year.18 As the largest State bordering the South China
Sea, China is relying more and more heavily on this superhighway for its energy
supply and international trade. China is playing an increasingly important role in
the evolution of maritime behavior in the South China Sea. Examples include
China's participation in the Regional Code of Conduct in the South China Sea
adopted by the member States of the Association of Southeast Asian Nations and
China in November 1999.19 The driving force for China's proactive attitude in re-
gional affairs is, on one hand, to resolve its long-standing disputes with its mari-
time neighbors, and to secure its interests in the South China Sea on the other. It
may also be expected that China's positive attitude will bring its management prac-
tices in line with international requirements and contribute to regional
cooperation.
Compared with its maritime neighbors, China is disadvantaged in the use of the
China Seas. Although China claims three million square kilometers of "blue terri-
tory" under the 1982 LOS Convention, the ratio of land to ocean space is smaller
than those of its maritime neighbors. China has engaged in negotiations to settle
maritime boundary disputes with its neighboring States. When dealing with these
issues, China has shown little interest in using international adjudication and ap-
pears to favor consultation, thereby minimizing the necessity of multilateral in-
volvement. Predictably, China will eventually settle these disputes by its own
means. However, in situations where there is a dispute between two States as to the
interpretation or application of the LOS Convention, the compulsory dispute set-
tlement mechanism set out in Part XV is available.
101
China and the Law of the Sea: An Update
China's Implementation of the 1982 LOS Convention
Ratification of the 1982 LOS Convention has had a strong impact on China's mari-
time legislation and practice. China's commitment to the Convention's obliga-
tions is evidenced by national legislation on maritime zones. Among the maritime
zones under national jurisdiction provided for in the Convention, China has de-
clared a 12-nm territorial sea (with straight baselines), a 24-nm contiguous zone, a
200-nm EEZ and a continental shelf. China formally promulgated the Law of the
PRC [People's Republic of China] on the Territorial Sea and the Contiguous Zone
in 1992 (1992 TS/CZ Law), and the Law of the PRC on the Exclusive Economic
Zone and the Continental Shelf in 1998 (1998 EEZ/CS Law).20 As the most impor-
tant pieces of national maritime legislation, the two laws are fundamental and deci-
sive in their legal status and direct impact on China's LOS Convention practice,
and merit a discussion.
China's Law and Policy on the Territorial Seas
Much of China's early law of the sea practice was found in specific laws and regula-
tions concerning control and jurisdiction over foreign vessels in Chinese waters, in
a number of treaties on commerce and navigation, or in bilateral agreements con-
cluded with neighboring States. China's first national action regarding the territo-
rial sea was the Declaration of the Government of the People's Republic of China
on China's Territorial Sea (1958 Declaration),21 which was promulgated in Sep-
tember 1958, five months after the conclusion of the first United Nations Confer-
ence on the Law of the Sea (UNCLOS I). As reflective of China's early practice of
the law of the sea, the 1958 Declaration corresponded generally with the principles
of UNCLOS I as represented in the 1958 Geneva Conventions on the Law of the
Sea.22 The Geneva Convention on the Territorial Sea and Contiguous Zone did not
specify the extent of the territorial sea, but the common practice then was three
nautical miles. However, the 1958 Chinese Declaration established a 12-nm territo-
rial sea and declared that this breadth applied to all the Chinese territories, includ-
ing Taiwan and its surrounding islands, and the islands in the South China Sea.
This action may be related to the two most significant physical features of China's
geography: the length of its coastline and the size of its continental shelf. It may also
have been necessitated by the desire to control foreign fishing activities in its
coastal waters and to protect fisheries resources therein.23 This is evidenced by the
fisheries agreements signed between China and Japan dating back to 1955. Most
importantly, the bitter Chinese history certainly served as one of the impetuses for
China to define a wider territorial sea and to adopt a position of favoring extensive
coastal State jurisdiction.
102
GuifangXue
The 1958 Declaration also established, inter alia, the straight-baseline method
for delimiting the Chinese territorial sea limit and declared the Bohai Sea and
Qiongzhou Strait (Hainan Strait) as Chinese internal waters. It also prohibited the
entry of foreign military vessels or aircraft into China's territorial sea and the na-
tional airspace above it without prior permission. These declarations were pro-
tested by a few States on grounds they constituted a unilateral extension of
territorial waters and that the straight-baseline system was invalid under interna-
tional law. It would be fair to say that the Chinese claim to a 12-nm territorial sea
was a reflection of what was to become an irreversible trend.
Following the promulgation of the 1958 Declaration, China enacted Regula-
tions Concerning the Passage of Foreign Non-military Vessels through Qiongzhou
Strait in 1964 (1964 Regulation). According to this regulation, no foreign military
vessels were allowed to pass through the strait, but foreign commercial vessels
might pass through the strait with permission requested forty-eight hours in ad-
vance and only during daylight hours.
The 1958 Declaration and the 1964 Regulation were the basic legal documents
that established China's territorial sea regime. During the past decades, this regime
has not been changed, except that foreign commercial vessels are now allowed to
pass the Qiongzhou Strait in both daytime and nighttime. The general positions of
these documents were effectively carried out on matters concerning China's terri-
torial seas.
China's action in adjusting its territorial sea regime was made by the 1992 TS/
CZ Law.24 In general, the 1992 TS/CZ Law maintained the principles of the 1958
Declaration,25 but improved the territorial sea regime in a number of aspects, in-
cluding control over foreign scientific research and other activities,26 clarification
of enforcement authorities,27 and the establishment of a contiguous zone.28 Some
articles of the 1992 TS/CZ Law are, however, inconsistent with the LOS Conven-
tion regime regarding innocent passage of warships and jurisdictional control of
security in the contiguous zone.29
China's consistent navigation policy that there is no right of innocent passage
for warships through the territorial sea posed a constraint on China's ratification of
the 1982 LOS Convention. China insists that foreign warship transits should be
regulated by requiring prior authorization of, or notification to, the coastal State
before passing through the territorial seas. This policy was reiterated in the Mari-
time Traffic Safety Law of the People's Republic of China (1983), which provides
that "no military vessels of foreign nationality may enter China's territorial seas
without being authorized by the Government thereof."30 Although China is not the
only nation to have such a requirement — there are more than thirty nations in the
world that have made similar pronouncements on this issue — it is suggested that
103
China and the Law of the Sea: An Update
China amend its legislation on the issue of innocent passage. China mav begin by
modifying the requirement for prior authorization to one of prior notification for
foreign warships wishing to pass through its territorial seas. Such a policy mav be a
workable compromise between Chinese navigation polio* and the innocent pas-
_e provisions of the LOS Convention.
S - juritv has been the issue of most concern to China. This is reflected in Article
13 of the 1992 TS CZ Law, which provides that China exercises control in the con-
tiguous zone to prevent and impose penalties for activities violating Chinese laws
and regulations on st customs, fiscal, sanitarv or entry-exit control within its
territory, internal waters and territorial sea. The addition of security control is said
to be on the basis ate practice and China's special circumstances, but it
has been criticized for not beins consistent with the 1982 LOS Convention.
China's EEZ Legislation and Enforcement
China proclaimed its EEZ upon ratification of the 1982 LOS Convention in 1996.
This enabled China to declare sovereign rights over a significant ocean domain,
guaranteed its growing interests in ocean-related activities and provided an impe-
tus for China to focus increased attention on the sea bordering its landmass. China
finalized its laws on the EEZ and continental shelf by adopting the 1998 EEZ/CS
Law.- With its sixteen articles, this law ensures China's sovereign rights and juris-
diction over its EEZ and continental shelf, and safeguards China's national inter-
It provides a legal framework to manage China's marine resources pursuant
to the requirements of the 1982 LOS Convention.
The LOS Convention recognizes historic title or historic waters in articles 10(6),
15 and 46(b) without defining them. It has been observed that the Convention re-
gime for such waters is to be determined in accordance with customary interna-
tional law.33 China's 1998 EEZ CS Law provides in Article 14 that the provisions of
"this law shall not affect the historic rights that China enjoys."34 This provision is
confusing in that it does not specify what provisions might affect China's historical
rights, and it is not clear what "historical rights" are being referenced. 5 Arguably
these rights refer to traditional fishing rights in the South China Sea, as China
claims historic title to these waters.3" Given the overlapping EEZ claims and fisher-
ies disputes between China and its maritime neighbors, it remains to be seen what
measures could be worked out among them to resolve this non-specific claim to
historic rights.
EEZ enforcement is a key component for coastal State parties to the 1982 LOS
Convention in which coastal States' jurisdictional rights are provided to ensure the
compliance of management measures in their EEZ. According to the Convention,
the EEZ is an area of shared rights and responsibilities between coastal States and
104
GuifangXue
foreign States.37 In regard to State practice on EEZ enforcement, there is great vari-
ation in the national regimes that coastal States have put in place.38 China favors
extensive and exclusive jurisdiction over sea areas for the coastal State, and holds
the view that a coastal State is entitled to more control over its EEZ than that pro-
vided by the LOS Convention.39
Regarding the legal status of the EEZ, China opposed the position that the EEZ
should be regarded as part of the high seas. It argued that if the EEZ was to be con-
sidered part of the high seas, then it would make no sense to establish such a zone.40
As far as the rights of other States in the EEZ are concerned, China stated that nor-
mal navigation and overflight would not be affected since neither was it part of the
territorial sea. Further, China considers that its EEZ serves as a buffer zone for de-
fense.41 This position is demonstrated by the 2002 amendment of the Surveying
and Mapping Law of the People's Republic of China ( 1992).42 According to China,
the EEZ is a new zone with specific legal status,43 and coastal States have the right to
protect, use, explore and exploit all the natural resources in the zone; to adopt nec-
essary measures and regulations to prevent the resources from being damaged or
polluted; and to exercise overall control and regulation of the marine environment
and scientific research within the zone.
Along with the development of EEZ activities in the seas, China's maritime law
and policy have been enhanced to deal with enforcement issues, including the basic
principles of management. Although lacking sufficient capabilities to enforce ju-
risdiction throughout its EEZ, China has adopted strict domestic measures to con-
trol the activities of other States in those waters; these have resulted in some debate
about their legality.44 Indeed, China does not have laws to specify operational pro-
cedures for EEZ enforcement. This leaves its 1998 EEZ/CS Law incomplete and dif-
ficult to implement.45 With no other law in place to fill the gap and an urgent need
for EEZ enforcement, China needs to accelerate its legislation and improve its ca-
pacity for EEZ enforcement. China's practice shows that the EEZ is a relatively new
regime in international law, and that its precise nature and the full conceptualiza-
tion of coastal States' and other States' rights and responsibilities in the EEZ are still
evolving.46
As a coastal State with increasing interests in the seas and oceans, China has
moved away from its previous practice. China has taken action to build up its ca-
pacity and institutional framework with long-term strategies.47 With security be-
ing the number one issue, China has made an effort to develop its EEZ
enforcement fleet. The Chinese navy, though mainly a coastal defensive force, is
one of the largest in the world. In addition, China has devoted more attention and
effort to participation in international and regional marine affairs. These activities
have contributed to the image of China as an emerging maritime power.
105
China and the Law of the Sea: An Update
Conclusion
As the most authoritative international instrument with the widest acceptance, the
1982 LOS Convention has changed access to, and the regulation of, the world
oceans and ocean-related activities. It provides basic principles for the develop-
ment of national law and policy and guidelines for State practice, and has remained
a dynamic instrument and a point of reference for legal norms at the global, re-
gional and national levels in dealing with the countless marine issues.48
As the nation with the greatest population in the world, China is playing an in-
creasingly more active role in international affairs and is undergoing a rapid trans-
formation into the world's most influential force in globalization. In the realm of
the law of the sea, the years that have followed China's ratification of the 1982 LOS
Convention have witnessed major changes in China's attitude toward the Conven-
tion and international marine affairs. Through the implementation of the LOS
Convention framework, China has made a distinctive enhancement in the devel-
opment of Chinese national law and policy.
This analysis of China's implementation practices has shown that China has
embraced opportunities to develop its legal and policy framework to safeguard its
rights and interests related to the oceans and seas. In reviewing the actions taken, it
can be concluded that China, as a contracting party, has made a solid effort to im-
plement the 1982 LOS Convention regime. China, for its part, has been accelerat-
ing domestic procedures with a view to enabling it to comply with Convention
obligations, and has made progress in legislative harmonization and policy adjust-
ment. Notwithstanding its noticeable effort, the LOS Convention practice of China
has not, as a whole, been totally consistent with Convention provisions — its legis-
lation is incomplete and enforcement remains weak. China's position is clear: to
secure an opportunity for its national interests and to accept the accompanying
commitments at the same time.
China once focused almost exclusively on its status as a coastal State. Now China
has come to realize that freedom of navigation throughout the world's oceans and
through and over international straits is indispensable not only for its booming in-
ternational trade but also for ensuring the steady stream of imported oil necessary
to fuel its remarkably growing economy. Facing considerable structural, man-
power and financial constraints within the ocean administrative system, China
needs to set priorities to overcome political, economic, legal and technical obsta-
cles, and to improve its overall management capacity. China also needs to adopt
operational regulations regarding maritime enforcement issues to comport with
the requirements of the 1982 LOS Convention.
106
GuifangXue
Notes
1. United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 3 [here-
inafter 1982 LOS Convention].
2. The names of these seas are commonly used in English. The use of the term "China Seas"
does not imply that the seas somehow accrue to China. In Chinese, the East China Sea and the
South China Sea are simply the East Sea (Donghai) and the South Sea (Nanhai), respectively.
3. For an examination of China's maritime interests and security issues, see Chris Rahman,
The Rise of China as a Regional Maritime Power: Strategic Implications for a New Century
(2003) (unpublished Ph.D. dissertation, University of Wollongong, Australia) (on file with
author).
4. China returned to the United Nations in 1971 and participated in all sessions of
UNCLOS III. See CHOON-HO PARK, EAST ASIA AND THE LAW OF THE SEA 107 (2d ed. 1985). For
a discussion of China's participation in UNCLOS III and its practice under the 1982 LOS Con-
vention, see JEANETTE GREENFIELD, CHINA'S PRACTICE IN THE LAW OF THE SEA 193-205, 231
app. 2,233 app. 3,235 app. 4 ( 1 992) . See also Zhiguo Gao, China and the LOS Convention, 1 5 MA-
RINE POLICY 199 (1991).
5. Greenfield, supra note 4, at 231 app. 2.
6. See Guoxing Ji, Maritime Jurisdiction in the Three China Seas: Options for Equitable Settle-
ment, in UN Convention on the Law of the Sea and East Asia 87 (Dalhoong Kim et al.
eds., 1996).
7. Tieya Wang, China and the Law of the Sea, in THE LAW OF THE SEA AND OCEAN INDUS-
TRY: New Opportunities and Restraints: Proceedings of the Law of the Sea Institute,
Sixteenth Annual Conference 584 (D.M. Johnston & N.G. Letalik eds., 1982).
8. All the coastal States around the China Seas have ratified the 1982 LOS Convention ex-
cept North Korea, and all of them have claimed a 200-nm EEZ. A listing of the various EEZ
claims is available at http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/
table_summary _of_claims.pdf (last visited Nov. 17, 2007).
9. For a brief account of the maritime claims of these States, see Mark J. Valencia, The South
China Sea: Prospects for Marine Regionalism, 2 MARINE POLICY 87 (1978).
10. Eight parties presently claim title to the South China Sea islands. China, both mainland
and Taiwan, and Vietnam contest ownership of the Paracel Islands. Six claims are asserted to the
Spratlys: China, both mainland and Taiwan, and Vietnam claim the entire archipelago, while the
Philippines, Malaysia and Brunei claim sovereignty over certain portions of the area. See Chris-
topher C. Joyner, The Spratly Islands Dispute: Rethinking the Interplay of Law, Diplomacy, and
Geo-politics in the South China Sea, 13 INTERNATIONAL JOURNAL OF MARINE & COASTAL LAW
195 (1998). See also Stuart B. Kaye, The Spratly Islands Dispute: A Legal Background, 102 MARI-
TIME STUDIES, Sept.-Oct. 1998, at 14-25. For a discussion on the influence of the islands in the
South China Sea, see Alex G. Oude Elferink, The Islands in the South China Sea: How Does Their
Presence Limit the Extent of the High Seas and the Area and the Maritime Zones of the Mainland
Coasts?, 32 Ocean Development & International Law 169-90 (2001).
11. As Valencia observes, the region "is especially complicated in that it is surrounded or
used by states sharing a similar historical and cultural background, but differing in internal polit-
ical systems, external political and economic alignment, and levels of economic development."
See Mark J. Valencia, The Yellow Sea: Transnational Marine Resource Management Issues, 12 MA-
RINE POLICY 382, 382 (1988).
12. See Choon-ho Park, Fishing Under Troubled Waters: The Northeast Asia Fisheries Contro-
versy, 2 Ocean Development & International Law 1 14 ( 1974).
107
China and the Law of the Sea: An Update
13. Choon-ho Park, The South China Sea Disputes: Who Owns the Islands and the Natural
Resources?, 5 OCEAN DEVELOPMENT & INTERNATIONAL LAW 27, 30 (1978).
14. For a discussion of China's boundary issues, see PARK, supra note 4, at 245-70.
15. See Daojiong Zha, Chinas Exploitation of South China Sea Resources: The Case of Hainan
Province 2 (International University of Japan Research Institute Working Paper, Asia Pacific Se-
ries No. 15, presented at the Human and Regional Security around the South China Sea confer-
ence, University of Oslo, Oslo, Norway, June 2-4, 2000), http://www.iuj.ac.jp/research/archive/
wpaper/wpapO 1 5.html.
16. Id. at 1. See also Nguyen Hong Thao, Vietnam and the Code of Conduct for the South
China Sea, 32 OCEAN DEVELOPMENT & INTERNATIONAL LAW 105 (2001).
17. For a comprehensive discussion of China's claims and activities in the South China
sea, see greg austin, china's ocean frontier: international law, military force
and National Development (1998).
18. For a discussion of the navigational importance of the South China Sea, see Park, supra
note 13. See also PARK, supra note 4, at 83.
19. See Thao, supra note 16, at 124 app. 1.
20 The 1992 TS/CZ Law was adopted by the Standing Committee of National People's Con-
gress in 1992. For the Chinese and English versions, see STATE OCEANIC ADMINISTRATION, COL-
LECTION of the Sea Laws and Regulations of the People's Republic of China 4-6, 201—
15 (2001) [hereinafter COLLECTION OF THE SEA LAWS AND REGULATIONS]. The 1998 EEZ/CS
Law was approved by the same legislative authority in 1998. For the Chinese and English ver-
sions, see id. at 1 1-14, 210-15.
2 1 . See Declaration of the Government of the People's Republic of China on China's Terri-
torial Sea (Sept. 4, 1958) [hereinafter 1958 Declaration]. For Chinese and English versions, see
id. at 1-2, 197-98. According to Greenfield, China acknowledged the concept of territorial wa-
ters as early as 1874. See GREENFIELD, supra note 4, at 57. The declaration defined the applica-
tion of China's sovereignty (paragraph 1 states that China's sovereignty applies to some islands
separated from the mainland and four large groups of archipelagos in the South China Sea); es-
tablished a 12-nm breadth territorial sea measured from straight baselines; claimed internal
waters, including the Bohai Sea and Qiongzhou Strait; and required foreign military vessels to
obtain permission before passing through China's territorial sea. 1958 Declaration, COLLEC-
TION OF THE SEA LAWS AND REGULATIONS, supra note 20, paras. 1, 2 and 3.
22. Convention on the Territorial Sea and Contiguous Zone, Apr. 29, 1958, 15 U.S.T. 1606,
516 U.N.T.S. 205; Convention on the Continental Shelf, Apr. 29, 1958, 15 U.S.T. 471, 499
U.N.T.S. 31 1; Convention on the High Seas, Apr. 28, 1958, 13 U.S.T. 2312, 450 U.N.T.S. 92. The
adoption of some Geneva principles indicates China's intention to stay within the broad frame-
work of the Geneva Conventions. See PARK, supra note 4, at 17. For China's attitude toward the
four Geneva Conventions (the fourth is the Convention on Fishing and Conservation of the Liv-
ing Resources of the High Seas, Apr. 29, 1958, 17 U.S.T. 138, 559 U.N.T.S. 285), see Gao, supra
note 4, at 199-201. See also JEANETTE GREENFIELD, CHINA AND THE LAW OF THE SEA, AIR AND
ENVIRONMENT 18 (1979).
23. Park is of the opinion that China's claim to a 12-nm territorial sea should be viewed
against its bitter history of being invaded on six occasions from the sea. See PARK, supra note 4, at
16. See also Wang, supra note 7, at 582.
24. For discussions of this adjustment, see Liyu Wang & Peter H. Pearse, The New Legal Re-
gime for China's Territorial Sea, 25 OCEAN DEVELOPMENT & INTERNATIONAL LAW 434 (1994);
Max Herriman, China's Territorial Sea and the Contiguous Zone Law and International Law of the
Sea, MARITIME STUDIES, Jan.-Feb. 1997, at 15-20; Yann-Huei Song & Keyuan Zou, Maritime
108
GuifangXue
Legislation of Mainland China and Taiwan: Developments, Comparison, Implications, and Poten-
tial Challenges for the United States, 31 OCEAN DEVELOPMENT 8c INTERNATIONAL LAW 303-45
(2000).
25. Articles 2, 3 and 6 of the 1992 TS/CZ Law retain the 12-nm breadth of the territorial sea,
straight baselines, prior approval of foreign military vessels and sovereignly over China's archi-
pelagos and islands claimed in the 1958 Declaration. Article 2 of the 1992 TS/CZ Law specifically
mentions the name of the claimed islands in the East China Sea and the South China Sea, in par-
ticular the Diaoyu (Senkaku) Islands. Some nations of East Asia expressed concern over this an-
nouncement. See Testing the Waters, FAR EASTERN ECONOMIC REVIEW, Mar. 12, 1992, at 9; Lee
G. Cordner, The Spratly Islands Dispute and the Law of the Sea, 25 OCEAN DEVELOPMENT & IN-
TERNATIONAL LAW 65 (1994).
26. 1992 TS/CZ Law, supra note 20. Article 1 1 requires that all international organizations
and foreign organizations or individuals obtain approval before carrying out scientific research
and other activities in the territorial sea.
27. Id., arts. 8, 9, 10, 1 1, 13 and 14. The 1958 Declaration was silent about the control of the
territorial sea. It might be subject to domestic regulations in this regard.
28. In 1996, China promulgated a number of baseline coordinates upon its ratification of the
1982 LOS Convention. See Declaration of the Government of the People's Republic of China on
the Baseline of the Territorial Sea of the PRC, COLLECTION OF THE SEA LAWS AND REGULA-
TIONS, supra note 20, at 7-10, 206-209. This brought an end to the uncertainty of China's terri-
torial sea baseline and produced a more effective position to protect China's sovereignty. For a
discussion of this development, see Keyuan Zou, The Establishment of a Marine Legal System in
China, 13 INTERNATIONAL JOURNAL OF MARINE AND COASTAL LAW 23, 28 (1998).
29. 1992 TS/CZ Law, supra note 20, arts. 4, 13. See X. Nl & A. ZHAO, AN INTRODUCTION TO
the Territorial Sea and Contiguous Zone 84 (1993) (in Chinese). Morgan is of the view
that the security zones claimed by China and North Korea in the Yellow Sea, though not sanc-
tioned by the 1982 LOS Convention, appear to contribute to the stability of the region. See J.R.
Morgan, Maritime Zones in the Yellow Sea and their Effects on SLOC Security, in THE REGIME OF
the Yellow Sea: Issues and Policy Options for Cooperation in the Changing Envi-
ronment 51, 59-61 (Choon-ho Park et al. eds., 1990).
30. Available at http://tradeinservices.mofcom.gov. cn/en/b/2007- 12-21/185 1 2.shtml.
31. 1998 EEZ/CS Law, supra note 20. It is obvious that this legislative action was stimulated
by neighboring States' legislative moves on the same subject. Japan and South Korea promul-
gated their EEZ and continental shelf statutes in 1996.
32. Id., art. 1. The 1982 LOS Convention grants coastal States sovereign rights to the natural
resources of their EEZs and jurisdiction over certain activities. See 1982 LOS Convention, supra
note 1, art. 56.
33. Elferink, supra note 10, at 172.
34. China claims historical rights to the South China Sea. See 1998 EEZ/CS Law, supra note
20, art. 14. See also AUSTIN, supra note 17, at 206-22.
35. There was no explanation of this provision during its legislative process. For a compre-
hensive discussion, see Keyuan Zou, Historic Rights in International Law and in China's Practice,
32 Ocean Development & International Law 149 (2001).
36. See Jinming Li 8c Dexia Li, The Dotted Line on the Chinese Map of the South China Sea: A
Note, 34 Ocean Development 8c International Law 292 (2003).
37. The 1982 LOS Convention provides coastal States sovereign rights and jurisdiction over
natural resources, whereas foreign States retain certain freedoms, such as navigation and overfly.
See 1982 LOS Convention, supra note 1, art. 58.
109
China and the Law of the Sea: An Update
38. sec gera] d k. moore, un food & agriculture organization, coastal state
Requirements for foreign Fishing (1981).
39. See Morgan, supra note 29, at 58. China is of the view that the use of the EEZ for non-
peaceful purposes such as military and electronic intelligence gathering is illegal. See Xizhong
Cheng, A Chinese Perspective on 'Operational Modalities, ' 28 MARINE POLICY 25 (2004).
40. See GREENFIELD, supra note 4, at 231 app. 2, 233 app. 3, 235 app. 4 for China's working
papers submitted to UNCLOS III.
4 1 . Morgan, supra note 29, at 6 1 .
42. Promulgated by Presidential Decree No. 66 and effective on July 1, 1993. See COLLEC-
TION OF THE SEA LAWS AND REGULATIONS, supra note 20, at 64-70, 300-1 3. The announcement
of the amendment to that law followed the confrontation with the US Navy's ocean-survey ship
USS Bowditch (AGS 4) by Chinese military patrol aircraft and ships in September 2002. See Bill
Gertz, China Enacts Law Extending Its Control, WASHINGTON TIMES, Jan. 27, 2003, at 1.
43. For a supporting view, see OFFICE OF THE SPECIAL REPRESENTATIVE OF THE SECRETARY-
GENERAL for the Law of the Sea, The Law of the Sea: National Legislation on the Ex-
clusive Economic Zone, the Economic zone and the Exclusive Fishery Zone, U.N.
Sales No. E.85.V.10 (1986). "EEZ is subject to a 'special regime'. The regime is specific in the
sense that the legal regime of the EEZ is different from both the territorial sea and the high seas. It
is a zone which partakes of some of the characteristics of both regimes but belongs to neither." Id.
at 13.
44. See Mark J. Valencia, Summary of the Bali Dialogue, 28 MARINE POLICY 7 (2004).
45. This gap was partly filled by several ministerial regulations regarding fishing vessels. In
June 1999, the Ministry of Agriculture (MOA) issued the Provisional Regulations on Foreigners
and Foreign Fishing Vessels in the Sea Waters under the Jurisdiction of China. Series No. 18 of
the MOA, June 24, 1999, Fisheries Management Bureau, Database for Fisheries Laws and Regu-
lations (1949-99) (in Chinese).
46. China's EEZ enforcement practice may also suggest that international law is determined
not so much by conventions but by the practice of States. With the changed global political dy-
namics, the international legal framework needs to develop to be consistent with the current
context. For a summary of States' EEZ legislation and practice, see UN DIVISION FOR OCEAN AF-
FAIRS and the Law of the Sea, Office of Legal Affairs, The Law of the Sea: Practice of
States at the Time of Entry into Force of the United Nations Convention on the
LAW OF THE SEA 9-13, UN Sales No. E.94.V. 13(1 994). See also Mark J. Valencia, The Regime of
the Exclusive Economic Zone: Issues and Responses, A Report of the Tokyo Meeting February
2003, available at http://www.eastwestcenter.org/news-center/coming-up/coming-up-archive/
february-2003/.
47. The analysis of the provisions of the 1998 EEZ/CS Law, supra note 20, and China's EEZ
practice indicates that China's implementation action is consistent with the general principles of
the provisions of the 1982 LOS Convention. For instance, Articles 2, 3 and 5 of the 1998 EEZ/CS
Law are virtually a verbatim copy of Articles 56( 1 ) and 77( 1 ) of the Convention. Article 10 of the
1998 EEZ/CS Law specifies that China is to prevent and control marine pollution.
48. United Nations, Oceans: The Source of life- United Nations Convention on
1 1 II LAW ( >F THE SEA 20TH ANNIVERSARY (1 982-2002) 12 (last updated Feb. 10, 2004), available
at http://www.un.org/Depts/LOS/convention_agreements/convention_20years/oceanssourceoflife
.pdf.
110
V
The 1982 United Nations Convention on the
Law of the Sea:
An Historical Perspective on Prospects for
US Accession
Horace B. Robertson Jr.*
Early Background
Contrary to popular belief, the initiative for the Third United Nations Confer-
ence on the Law of the Sea did not originate with Ambassador Pardo's famous
speech before the General Assembly in 1967. Although this speech dramatized ocean
seabed issues to the international community and gave us the now-famous phrase of
"common heritage of mankind," the idea for a third conference germinated from sev-
eral different sources, one of the principal of which was the US government.
More than a year prior to Ambassador Pardo's speech, the US House of Repre-
sentatives touched off the process in a letter to the Department of State suggesting a
study of the international implications of developing resources of the seabed. The
reply from the Assistant Secretary for Congressional Relations indicated that the
State Department "was unaware of any need for a study of international law or for-
eign policy relating to the development of the natural resources of the oceans."1
The attention of the State Department was pricked again in 1966 when the Soviet
Union sent a letter to some sixty States about the possibility of convening a third
Rear Admiral, Judge Advocate General's Corps, United States Navy (Ret.)
Historical Perspective on Prospects for US Accession to the LOS Convention
law of the sea conference.2 The letter dealt explicitly only with the issue of the
breadth of the territorial sea, which was left unresolved by the 1958 Convention on
the Territorial Sea and Contiguous Zone and the failed 1960 Second United Nations
Conference on the Law of the Sea.3 This letter was basically an appeal to affirm the
Soviet position on the 12 mile territorial sea.4 When the Soviet proposal was re-
ceived, it touched off a six-month study by the Departments of State and Defense
and the Bureau of Commercial Fisheries.5 This study group concluded that the De-
partment of Defense could live with a 12 mile territorial sea, provided it was ac-
companied by a right of free passage through international straits, but it also
recognized that this solution was not attainable without some accommodation be-
tween coastal and maritime States with respect to fisheries. There was also appre-
hension by the Department of Defense that the process might get out of control
and urged that any international negotiation should be conducted in "manageable
packages."6
Concurrently with this effort, the Office of International Organizations of the
Department of State, apparently without extensive vetting by other departments,
launched its own initiative in the United Nations. James Roosevelt, the US delegate
to the United Nations, sent a letter to Secretary-General U Thant suggesting that
the Secretariat conduct a study "of the state of knowledge concerning undersea
resources and exploitation technology."7 As an immediate consequence, the UN Eco-
nomic and Social Council adopted a resolution requesting the Secretary-General
"make a survey of the present state of knowledge of [the non-fish resources of the
sea beyond the continental shelf], and of the techniques for exploiting these re-
sources," particularly those capable of exploitation for the benefit of developing
countries.8
Echoing this theme, President Johnson, in his remarks at the commissioning of
the ocean research ship Oceanographer in 1966, stated:
[U]nder no circumstances, we believe, must we ever allow the prospects of rich
harvests and mineral wealth [of the oceans] to create a new form of colonial
competition among the maritime nations. We must be careful to avoid a race to grab
and to hold the lands under the high seas. We must ensure that the deep seas and the
ocean bottoms are the legacy of all human beings.9
With this as background, it was not really a giant step for Ambassador Pardo,
representing the State of Malta, to propose in 1967 that the mineral resources of the
seabed beyond national jurisdiction be declared the "common heritage of man-
kind" to be developed for the benefit of all nations. 1() He went on to predict that the
volume of these resources was so vast and so easily mined that in a few years the
112
Horace B. Robertson Jr.
ores would yield at least $5 billion profit annually to be distributed for the benefit
of the poorer countries of the Third World.11 The US Ambassador to the United
Nations, Arthur Goldberg, heartily endorsed including the item on the agenda of
the First Committee.12
Enticed by the "mirage" of the wealth of the deep seabed predicted by Ambassa-
dor Pardo, the UN General Assembly rapidly formed an ad hoc committee to study
seabed issues — the Committee on the Peaceful Uses of the Sea-Bed and the Ocean
Floor beyond the Limits of National Jurisdiction.13 This committee, in turn, was
made a permanent committee and morphed into the Preparatory Committee for a
Third United Nations Conference on the Law of the Sea.
Congress quickly took notice of the Malta proposal, and almost immediately
several bills were introduced in the House and Senate, mostly unfavorable to the
idea of an international regime for the seabed. In testimony before several commit-
tees that held hearings on the issue, Johnson administration witnesses displayed
some uncertainty and confusion about the US position but generally stated that
given the present state of knowledge, it was premature to consider international
control over the resources of the seabed.14 The UN resolution and the uncertainty
indicated by the congressional hearings did, however, stimulate action within the
Executive Branch to take action to coordinate the formation of a unified US policy
on the law of the sea, responsibility for which previously had been divided among
many departments. The result was the creation of the Committee on International
Policy in the Marine Environment (CIPME), under the chairmanship of the Dep-
uty Under Secretary of State. Day-to-day leadership was under the International
Organizations Office of the State Department, but eventually was assumed by the
Legal Adviser.15 By the time of the second session of the Ad Hoc Seabed Committee
in June 1968, as a result of the work of the CIPME, the United States was able to
submit to the Seabed Committee a draft declaration of seven principles, two of
which were
(1) that no state might claim or exercise sovereignty or sovereign rights over any part of
the deep ocean floor; and (2) that international arrangements to govern exploitation of
deep-sea resources should be established as soon as practicable, with provisions for the
orderly development of resources and for the dedication of a part of the value of the
resources to "international community purposes."16
By 1970 the principle of the deep seabed as the common heritage of mankind was
apparently so firmly established within the US government's policy on the law of
the sea that it was included in President Nixon's ocean policy statement of May 23,
1970, in which he stated, in part:
113
Historical Perspective on Prospects for US Accession to the LOS Convention
I am today proposing that all nations adopt as soon as possible a treaty under which
they would renounce all national claims over the natural resources of the seabed
beyond the point where the high seas reach a depth of 200 meters . . . and would agree
to regard these resources as the common heritage of mankind.17
The President's statement went on to say that the treaty should establish an inter-
national regime for the exploitation of seabed resources beyond this limit and pro-
vide for agreed international machinery to authorize and regulate exploration and
use of seabed resources beyond the continental margin.18 On August 3 of the same
year, the United States submitted to the UN Seabed Committee a draft UN Con-
vention on the International Seabed as "a working paper for discussion purposes"
that spelled out the details of machinery for the exploration and exploitation of the
seabed beyond national jurisdiction, and provided that developing countries
would share in the revenues.19 It also included a provision for the establishment of
a law of the sea tribunal for settlement of disputes.20
The Opposition Emerges
It can be seen then that, from the outset, the principle of the "common heritage of
mankind" and the creation of an international body to orchestrate the exploration
and exploitation of its mineral resources was not something invented by Third
World States to use against the United States, but was a principle accepted and ad-
vanced from the outset by the US government at all levels. What, then, changed be-
tween 1970 and 1982 to make that principle, as now codified in Part XI of the Law
of the Sea Convention21 unacceptable to the United States at that time? The stated
cause, as expressed by President Reagan in his January and July 1982 an-
nouncements that the United States would not adhere to the Convention, was the spe-
cific terms of the machinery adopted to implement the common-heritage principle in
the deep seabed. In his statements, the President identified six provisions in Part XI of
the Convention that could not be accepted by the United States. He added, however,
that if these objectionable provisions were corrected, he would support ratification.22
The President's statement was reinforced and amplified a month later by the
statement of the President's then-Special Representative for the Law of the Sea,
Ambassador James L. Malone, in his statement to the House Merchant Marine and
Fisheries Committee in which he testified that the United States has "a strong in-
terest in an effective Law of the Sea Treaty"23 and six months later when he testified
before the House Foreign Affairs Committee that the United States was "not seek-
ing to change the basic structure of the treaty" or "to destroy the system" but rather
to "make it work."24
114
Horace B. Robertson Jr.
With the defects in the machinery identified by President Reagan having been
fixed by the 1994 Agreement superseding the objectionable elements of Part XI;25
with President Clinton having forwarded the Convention and the 1994 Agree-
ment to the Senate strongly recommending adherence;26 with his successor,
George W. Bush, having strongly renewed that recommendation;27 and with the Sen-
ate Republican-chaired Foreign Relations Committee having unanimously rec-
ommended that the Senate give its advice and consent to the Convention in
2004,28 why is there still controversy even in getting it to a vote by the full Senate?
The result may be partly the result of higher-priority items displacing it on the
Senate agenda — after all, the argument goes, the American stakeholders appear to
be functioning without difficulty in a non- treaty environment. But the major
bugaboo, in my view and that of others as well, in 1982, as well as today, is ideologi-
cal. The most vocal opposition advocates view with suspicion any action by the
United States that accepts any arrangement for decision making by an interna-
tional institution. In their view this is a "surrender of sovereignty."29
This ideology was stated early on in a surprising statement by Ambassador
Malone at the Sixth Annual Conference of the University of Virginia Center for
Oceans Law and Policy held in Montego Bay in January 1983 — only one month af-
ter the opening of the Convention for signature at the identical location and only
six months after the President's announcement of his decision not to sign the Con-
vention. The statement was "surprising" in that it directly contradicted the Presi-
dent's statement and Ambassador Malone's contemporaneous testimony before
the two House committees that the US objective was not to scuttle the Convention
but to make it work. At the University of Virginia Conference, Mr. Malone stated:
The Treaty ... is a document which, hiding behind the mask of superficially appealing
slogans like the "new international economic order" and the "common heritage of
mankind," promotes a thinly disguised world collectivism. It is intended as an
instrument for the redistribution of the world's wealth from those who have acquired
their prosperity by risk, sacrifice, and hard work to those who seek to promote their
prosperity through organizational means.30
Replying to those who suggested that the flaws could be corrected through
"PREPCOM, and other means," he added, "The plain fact is that there exists no
possibility nor instrument for making the important changes that would satisfy
President Reagan's objections."31
Ambassador Malone continued:
The potential impact on the U.S., its friends and allies is without parallel. Think of the
latent danger. We are discussing an institution that would exert supreme control over
115
Historical Perspective on Prospects for US Accession to the LOS Convention
the deep oceans and their mineral wealth representing over 60% of the resource
potential of planet Earth.
I sometimes wonder how many informed and well-meaning Americans can be willing
to compromise principals [sic] and values which support America's national greatness
and mortgage our future economic health and security interests for a treaty that is little
better than an international entitlement program — a give away.32
Opposition Arguments against the Convention
The arguments put forth by Ambassador Malone's remarks at the University of
Virginia conference form the core of current arguments against adherence to the
Convention — that is, the Convention is a surrender of sovereignly and amounts to
a giveaway.33 Opponents bolster their arguments by pointing out what they per-
ceive as specific flaws in the substantive provisions of the Convention. They are
phrased somewhat differently in the many statements originating with the opposi-
tion, but in essence they boil down to the following:
1. The seabed provisions (Part XI) give the International Seabed Authority
(ISA) jurisdiction over all activities occurring in over 70 percent of the earth's sur-
face (ocean, seabed and airspace above);
2. The 1994 Agreement did not really correct the flaws in Part XI of the
Convention;
3. Adherence to the Convention would impede the conduct of US maritime in-
telligence operations and the Proliferation Security Initiative (PSI);
4. Since most of the provisions of the Convention reflect customary interna-
tional law, we don't need the Convention to protect our maritime interests;
5. The Convention's provisions for compulsory dispute settlement could result
in bringing the United States within the jurisdiction of an international tribunal
against our will;
6. The Convention gives the International Seabed Authority power to "levy
taxes" (some critics conflate the Convention's seabed-governing body (the ISA)
into the United Nations); and
7. Pressure to accede to the Convention is a "rush to judgment."
Counterarguments
All of the foregoing criticisms have been effectively answered in detail by govern-
ment officials and independent experts numerous times and in detail in many fora,
including congressional hearings, official reports and other public discussions. I
will not attempt to answer them in detail in this article but will briefly summarize
116
Horace J5. Robertson Jr.
the gist of the responses and, where appropriate, provide in the endnotes some ref-
erence to where the interested reader may find amplification.34
Jurisdiction of the International Seabed Authority
The jurisdiction of the ISA is limited to the "solid, liquid or gaseous mineral re-
sources in situ in the Area at or beneath the sea-bed."35 The Area, in turn, is defined
as "the sea-bed and ocean floor and subsoil thereof, beyond the limits of national
jurisdiction."36 Article 135 explicitly provides, "Neither this Part [Part XI] nor any
rights granted or exercised pursuant thereto shall affect the legal status of the wa-
ters superjacent to the Area or that of the air space above those waters."
The 1994 Agreement
The changes adopted in this "Agreement relating to the Implementation of Part XI
of the United Nations Convention on the Law of the Sea of 10 December 1982" su-
persede any conflicting terms in the 1982 LOS Convention and meet all of the ob-
jections raised by President Reagan in his 1982 statement. The Agreement
substantially overhauls the Authority's decision-making procedure, including
provisions guaranteeing the United States a permanent seat on the powerful Coun-
cil and Finance Committee. It requires that in these bodies important decisions
and financial decisions be made by consensus, thus, in essence, giving the United
States veto power. The development principles incorporated in the Agreement are
market-based and require the operating arm (the Enterprise), when activated, to
compete on the same basis as other commercial enterprises. It eliminates all subsi-
dies inconsistent with the General Agreement on Tariffs and Trade. The site claims
of mining companies already licensed under US laws are grandfathered, and the re-
quirement for mandatory transfer of technology is eliminated.37 In a letter to the
Chairman of the Senate Armed Services Committee, all living former Legal Ad-
visers of the Department of State, who constitute a continuum of service from 1977
to 2000, authoritatively refuted the argument that the 1994 Agreement had not
cured the provisions of the 1982 Convention to which President Reagan ob-
jected.38
Proliferation Security Initiative and US Maritime Intelligence Surveillance
The US-developed PSI is directed toward preventing the illicit transportation by
ships of weapons of mass destruction, their delivery systems and related materials.
Under the Law of the Sea Convention and customary international law, a number
of jurisdictional bases exist for stopping and searching ships suspected of being en-
gaged in some sort of illicit activity. These include jurisdiction exercised by a State
with respect to ships flying its flag or within its territorial sea, ports or contiguous
117
Historical Perspective on Prospects for US Accession to the LOS Convention
zone, and stateless vessels. It is also permissible to stop and search a foreign-flag
vessel with the permission of the flag State. The PSI builds on this latter basis of ju-
risdiction with a series of bilateral agreements by which the United States and its
treaty partners agree in advance on a set of orderly procedures for the reciprocal
granting of permission for visits and search of suspected ships and cargoes. There is
nothing in the Convention that would change the law in any respect with respect to
the US practices under the Proliferation Security Initiative.39
Likewise, with respect to intelligence operations, the Law of the Sea Convention
contains no restrictions on US naval surveillance and intelligence operations not
already included in the 1958 Convention on the Territorial Sea and Contiguous
Zone to which the United States is already a party.40
Customary Law of the Sea as an Acceptable Alternative to the Convention
There is at least a germ of truth in this argument. The United States and its mari-
time activities are functioning reasonably well under the customary regime of the
law of the sea. Most of the Convention is indeed a codification of customary inter-
national law. President Reagan's 1982 statements acknowledged this and pledged
that the United States would abide by its rules.41 But customary law does not pro-
vide the precision and detail of a written document. It may establish a principle,
but its content may remain imprecise, subject to a range of interpretations. With
respect to the exclusive economic zone (EEZ), for example, it is generally conceded
today that the principle of the zone has become a part of customary international
law. But what about its content? The details are contained in a set of articles codify-
ing a series of compromises worked out in meticulous detail in the negotiations
leading up to the signing of the Convention. The rules for determining the allow-
able catch of the living resources of the EEZ, the determination of the coastal State's
capacity to harvest them, the determination of the allowable catch by other States
and the rules governing the coastal State's establishing of terms and conditions for
foreign fishermen in their EEZs are laid out in detail.42
Customary rules are fuzzy around the edges and may not be recognized as bind-
ing by an opposing State. The "jurisdiction creep," which continued after the 1958
and 1960 First and Second UN Conferences on the Law of the Sea, illustrated the
futility of relying on customary law to protect our vital security interests. Only a
written document can provide the certainty and stability required by our govern-
mental agencies and private maritime enterprises. And in any dispute with a for-
eign State to secure its compliance with the rules set forth in the Convention,
arguments based on a written agreement rather than an asserted principle of
customary international law would be much more effective.
118
Horace B. Robertson Jr.
Also, international institutions cannot be created by custom. Only through
agreements can this occur. The institutions incorporated in the Convention are essen-
tial to its proper functioning — the Seabed Authority, the Commission on the Limits of
the Continental Shelf, the Law of the Sea Tribunal and the other dispute settlement
mechanisms provided for in Part XV and Annexes V to VIII of the Convention. The
marine scientific research articles (Part XIII) of the Convention also provide for im-
plied consent to research requests in foreign waters if there is no reply within fixed
time limits, a right not accorded to the United States as a non-party.43
Some States also argue that some of the rights of navigation set forth in the Con-
vention are the contractual products of the negotiations and are available only to
parties to the Convention. These rights include the right of transit passage through
international straits and archipelagic sea lanes passage, both of the utmost impor-
tance to the United States.44
Compulsory Dispute Settlement
From the outset the United States has insisted that a system of compulsory dispute
settlement be a part of any comprehensive convention on the law of the sea.45 The
US delegation, in the person of the late Louis Sohn, took the lead in the negotiating
group that developed the final package, which became Part XV of the Convention
and its related Annexes. It is incongruous that the flexible provisions of Part XV,
worked out under the leadership of the United States, should now be the basis of
objection to the Convention. The objectors suggest, without basis in fact, that the
United States might be dragged against its will into the jurisdiction of the Law of
the Sea Tribunal, particularly with respect to our military activities.46 They ignore
the terms of the Convention that provide, with respect to compulsory procedures
entailing binding decisions, an opportunity for States, upon signing, ratifying or
acceding to the Convention, "or at any time thereafter," to choose the binding pro-
cedure it will accept from a menu of settlement mechanisms.47 The United States
has indicated that it will choose arbitration under Annexes VII and VIII upon ac-
cession.48 Further, the criticism ignores the provisions of Article 298 that provide
that State parties may exclude from the applicability of "any" of the compulsory
procedures providing for binding decisions, inter alia, "disputes concerning mili-
tary activities." One of the declarations that will accompany any US accession to
the Convention will state that its accession "is conditioned upon the understand-
ing that, under article 298(1 )(b), each State Party has the exclusive right to deter-
mine whether its activities are or were 'military activities' and that such
determinations are not subject to review."49
119
Historical Perspective on Prospects for US Accession to the LOS Convention
The Power to Levy Taxes
This argument is a distortion of the requirements of the Convention for funding
the International Seabed Authority. Under these provisions, during the period un-
til the ISA can become self-supporting, funding its operations depends on assess-
ments against States party to the Convention. In 2004 the Legal Adviser of the
Department of State estimated that had the United States been a party to the Con-
vention, its assessments for 2004 would have been a little over $1 million for the
Authority and less than $2 million for the Seabed Tribunal.50
The taxation objection made by opponents is often coupled with an argument
that US companies that had invested millions of dollars in exploration costs would
lose their existing claims under US law. This argument ignores the fact that the
1994 Agreement grandfathers these holders into the treaty regime based on ar-
rangements no less favorable than those granted to holders of claims already regis-
tered with the Authority upon certification by the US government and the
payment of a $250,000 application fee (a fee that is half of the fee established in the
1982 Convention).51 As Ambassador Colson pointed out in the 1994 hearings, "If
the U.S. does not become Party to the Convention, international recognition of the
rights of the U.S. licensed consortia could be jeopardized."52
A "Rush to Judgment"
Rather than a "rush to judgment," it is hard to find any aspect of the Convention that
has not been discussed and debated ad infinitum — in the public media, in academic
conferences and symposia, in legal and ocean policy literature, and in congressional
hearings. It has been studied and restudied by each successive administration, and
every government department and agency with a concern in the oceans supports
accession. In March 2007, in testimony before the Subcommittee on Fisheries,
Wildlife, and Oceans of the Natural Resources Committee of the House of Repre-
sentatives, Admiral James D. Watkins and Leon E. Panetta, Co-chairmen of the
Joint Ocean Commission Initiative, renewed their strong endorsement of the Con-
vention, saying, among other things, that the failure of the United States to become
a party to the Convention is "one of the most serious international ocean policy is-
sues that remain unresolved for our nation."53
On May 15, 2007, President George W. Bush issued a formal statement urging
the Senate
to act favorably on U.S. accession to the United Nations Convention on the Law of the
Sea during this session of Congress. Joining will serve the national security interests of
the United States, including the maritime mobility of our armed forces worldwide. It
will secure U.S. sovereign rights over extensive marine areas, including the valuable
120
Horace B. Robertson Jr.
natural resources they contain. Accession will promote U.S. interests in the
environmental health of the oceans. And it will give the United States a seat at the table
when the rights that are vital to our interests are debated and interpreted.54
With this overwhelming support from all segments of the US economic and gov-
ernmental structure, one would think that Senate advice and consent to accession
would be a "slam dunk." The immediate effect, however, was a flurry of media arti-
cles in opposition to the Convention, most of them from familiar names previously
identified with the opposition.55 Their arguments were the same as have been end-
lessly repeated since the Convention was adopted in 1982, with but one new argu-
ment I had not heard before. That is that the United States is giving up sovereignty
under the terms of Article 2, which provides, "The sovereignty over the territorial sea
is exercised subject to this Convention and to other rules of international law."56 This
argument conveniently ignores the fact that the United States is already bound by
identical text in the 1958 Convention on the Territorial Sea and Contiguous Sea.57
The Costs of Non-adherence
There are tangible costs for the United States in not being a party to the Law of the
Sea Convention. Until 1998, the United States was entitled to provisional member-
ship in the meetings of the States party to the Convention, but since then it can be
present only as an observer. Its non-accession has had and continues to have real
costs. It is ineligible to nominate members to the Law of the Sea Tribunal; it has
forfeited (as of March 2007) the opportunity to nominate members to the Com-
mission on the Limits of the Continental Shelf until the next election in 20 12,58 and
it cannot occupy its guaranteed seat on the Council of the Seabed Authority and
the powerful Finance Committee. The marine scientific research institutions con-
tinue to suffer from long delays in gaining approval for research in foreign EEZs,
which would be alleviated by the Convention's implied consent provisions were
the United States a party.59
Perhaps as damaging as the concrete benefits of the Convention previously dis-
cussed is the harm to the credibility of the United States in international relations by
failing to accede to the Convention. After all, we laid out before the world in President
Reagan's 1982 statements our objections to the Convention and what would be re-
quired for the United States to become a party. By adopting the 1994 Agreement, the
international community gave us what we demanded as conditions for our accession,
and now, thirteen years later, the United States has still not become a party.
121
Historical Perspective on Prospects for US Accession to the LOS Convention
Current Prospects for Accession
As of the date of preparation of this paper for publication (early September 2007),
there are indications that the Senate is prepared to take action toward granting its
advice and consent to accession to the Law of the Sea Convention. Both Senator
Biden, Chairman of the Senate Foreign Relations Committee, and Senator Lugar,
the senior minority member, are strong supporters of the Convention. It is antici-
pated that the Senate Foreign Relations Committee will hold further hearings to-
ward the end of September. Both the Department of State and the Department of
Defense appear to have mounted a "full-court press" to obtain Senate approval.60
The Commandant of the Coast Guard has weighed in with a strong endorsement.61
Four former Commandants of the Coast Guard have written Senator Biden urging
the Senate to approve the Convention this session of Congress.62 But the opposi-
tion's efforts to scuttle the Convention remain active, flooding the press and the
Internet with arguments built on destroying the straw men they have created by
misrepresentations and distortions of the terms of the Convention. As one of their
spokesmen has said, "The Senate won't ratify the Convention if it is controversial,
and I'm doing everything I can to make a controversy."63
The window of opportunity for the Senate to grant its consent to accession to
the Convention in the current 110th session of Congress is small, and the Senate
Foreign Relations Committee and the Senate at large both have full plates — Iraq,
Iran, North Korea, Afghanistan and immigration issues. Complicating the land-
scape is the fact that the Committee Chairman, Senator Biden, is a presidential
candidate with the first state primaries only a few months away. If the Convention
cannot be brought up for a vote in this session, it is unlikely that the Senate would
be inclined to address the issue in the second session of this Congress with a presi-
dential election looming ahead in November 2008. Those who favor US accession
may have to keep their hopes alive until a new Congress convenes in January 2009.
Notes
1. Ann L. Hollick, U.S. Foreign Policy and the Law of the Sea 194(1981).
2. Bernard H. Oxman, From Cooperation to Conflict: The Soviet Union and
the United States at the Third U.N. Conference on the Law of the Sea 4 (1984).
3. Id. at 5.
4. Id.
5. Id. at 6.
6. E-mail from Bernard H. Oxman, Richard A. Hausler Professor of Law, University of Mi-
ami School of Law (July 1, 2007) (on file with author).
7. HOLLICK, supra note 1 , at 194.
8. Leon, and Social Council Res. 1112 (XL) (Mar. 7, 1966).
122
Horace B. Robertson Jr.
9. Remarks at the Commissioning of the Research Ship Oceanographer, 1 PUBLIC PAPERS
of the Presidents 722 (July 13, 1966).
10. The Pardo initiative was a two-step process. On August 17, 1967, he proposed that the
General Assembly include on its agenda an item, "Declaration and Treaty Concerning the Reser-
vation Exclusively for Peaceful Purposes of the Sea-Bed and of the Ocean Floor, Underlying the
Seas Beyond the Limits of Present National Jurisdiction, and the Use of their Resources in the
Interests of Mankind." U.N. GAOR, 22nd Sess., Annex Vol. 3, Agenda item 92, at 1, U.N. Doc. A/
6695 (1967). On September 21, he explained his reasons for proposing the agenda item. U.N.
GAOR, 22nd Sess., Summary Records, U.N. Doc. A/BUR/SR.166,at3 (Sept. 21, 1967) [hereinaf-
ter Summary Records].
11. U.N. GAOR, 22nd Sess., Fifth Comm., 1 5 15th and 15 16th mtgs. (Nov. 1, 1967), reprinted
in H.R. 999, 90th Cong., 1st Sess., at 285 (1967). See also Louis B. Sohn, Managing the Law of the
Sea: Ambassador Pardo s Forgotten Second Idea, 36 COLUMBIA JOURNAL OF TRANSNATIONAL
LAW 285, 287(1998).
12. Summary Records, supra note 10.
13. G.A. Res. A/2340 (XXII) (Dec. 18, 1967), available at http://daccessdds.un.org/doc/
RESOLUTION/GEN/NR0/236/75/IMG/NR023675.pdf?OpenElement.
14. HOLLICK, supra, note 1, at 198-201, and the citations therein.
15. Mat 201.
16. Id. at 204-205. For a detailed discussion of the development of the US position of the law
of the sea during this period, see id. at 190-208. See also Horace B. Robertson Jr., A Legal Regime
for the Resources of the Seabed and Subsoil of the Deep Sea: A Brewing Problem for International
Lawmakers, NAVAL WAR COLLEGE REVIEW, Oct. 1 968, at 6 1 , reprinted in READINGS IN INTERNA-
TIONAL Law from the Naval War College Review 1974-1977, at 457 (Richard B. Lillich &
John Norton Moore eds., 1980) (Vol. 61, US Naval War College International Law Studies).
(That article was initially prepared as a paper to fulfill the author's thesis requirement for the de-
gree of Master of International Relations, George Washington University, 1968. The paper (on
file with author) contains a fuller account of initiatives within the US government, especially
those of Senator Claiborne Pell of Rhode Island, an early advocate of US action to take the lead in
developing an international regime for the deep seabed.) See S. Res. 263, 90th Cong. (1968).
17. Statement about United States Oceans Policy, PUBLIC PAPERS OF THE PRESIDENTS 454,
455 (May 23, 1970).
18. Id.
19. U.N. Doc. A/AC.138/25 (Aug. 3, 1970). See Statement by John R. Stevenson, Legal Ad-
viser, US Department of State, Draft UN. Convention on the International Seabed Area: U.S.
Working Paper Submitted to U.N. Seabeds Committee [hereinafter Stevenson Statement] and ap-
pended Statement by U.S. Ambassador Christopher H. Phillips, 63 DEPARTMENT OF STATE BUL-
LETIN 209 (1970) (outlining and explaining the US working paper).
20. Id.
21. United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 3 [here-
inafter 1982 LOS Convention].
22. Statement on United States Participation in the Third United Nations Conference on the
Law of the Sea, 1 PUBLIC PAPERS OF THE PRESIDENTS 92 (Jan. 29, 1982), available at http://
www.reagan.utexas.edu/archives/speeches/1982/12982b.htm; Statement of United States
Actions Concerning the Conference on the Law of the Sea, 2 PUBLIC PAPERS OF THE PRESIDENTS
911 (July 9, 1982), available at http://www.reagan.utexas.edu/archives/speeches/1982/70982b
.htm.
123
Historical Perspective on Prospects for US Accession to the LOS Convention
23. Law of the Sea: Hearing Before the H. Comm. on the Merchant Marine and Fisheries, 97th
Cong. 165 (Feb. 23, 1982) (statement of Ambassador James L. Malone, Special Representative of
the President), quoted in Bernard H. Oxman, The 1994 Agreement and the Convention, 88 AMERI-
CAN JOURNAL OF INTERNATIONAL LAW 687, 688 ( 1994).
24. U.S. Policy and the Law of the Sea: Hearing Before the H. Comm. on Foreign Affairs, 97th
Cong. 84 (Aug. 12, 1982) (statement of Ambassador James L. Malone, Special Representative of
the President), quoted in Oxman, supra note 23, at 689.
25. Agreement Relating to the Implementation of Part XI of the United Nations Convention
on the Law of the Sea of 10 December 1982, July 28, 1994, 1836 U.N.T.S. 41.
26. Message from the President of the United States Transmitting the United Nations Con-
vention on the Law of the Sea and the Agreement Relating to the Implementation of Part XI on
the United Nations Convention on the Law of the Sea, with Annex, S. TREATY DOC. NO. 103-39
(1994), available at http://lugar.senate.gov/sfrc/pdf/presidentialmessage.pdf.
27. Press Release, The White House, President's Statement on Advancing U.S. Interests in
the World's Oceans (May 15, 2007), http://www.whitehouse.gov/news/releases/2007/05/
20070515-2.html [hereinafter President's Statement].
28. S. Exec. Rpt. 108-10 (2004), available at http://lugar.senate.gov/sfrc/pdf/seareport.pdf.
29. The opposition has never clearly identified what elements of sovereignty are given up by
adherence to the Convention. Presumably it is suggesting that we could establish claims to some
form of exclusive jurisdiction over certain areas of the seabed and reserve them exclusively for
American exploitation, ignoring the fact no responsible government or private entity would in-
vest the enormous amounts of capital required for a profitable seabed-mining venture unless the
security of the claimed site was safe from competing claims or claim jumpers. It also ignores the
fact that by terms of the Convention, the US unilateral claims to a 200 mile exclusive economic
zone and the US continental shelf extension to the edge of the continental margin would be rein-
forced by treaty language.
30. Ambassador James L. Malone, Keynote Address Before the Center for Oceans Law and
Policy Conference: Law of the Sea Policy (Jan. 6, 1983), in 9 OCEAN POLICY STUDY SERIES 1 1
(1985).
31. Id. at 13.
32. Id. at 16. Emphasis in original text.
33. See, e.g., Military Implications of the United Nations Convention on the Law of the Sea:
Hearings Before the S. Comm. on Armed Services, 108th Cong. 56 (Apr. 8, 2004) (statement of
Jeane J. Kirkpatrick); statement of J. William Middendorf, id. at 69; United Nations Convention
on the Law of the Sea: Hearing Before the S. Comm. on Environment and Public Works, 108th
Cong. 19 (Mar. 23, 2004) (statement of Frank Gaffney Jr.); statement of Peter Leitner, id. at 24,
92, 129-45.
34. Perhaps the most detailed, articulate and scholarly defense of the Convention and ref-
utation of the opponents' arguments is contained in the Prepared Statements of Professor John
Norton Moore. Military Implications of the United Nations Convention on the Law of the Sea, su-
pra note 33, at 81 [hereinafter Moore Prepared Statement]; U.N. Convention on the Law of the
Sea: Hearing Before the H. Comm. on International Relations, 108th Cong. 70 (May 12, 2004).
35. 1982 LOS Convention, supra note 21, art. 133.
36. Id., art. 1(1).
37. For a fuller discussion of the 1994 Agreement, see Oxman, supra note 23; Louis B. Sohn,
International Implications of the 1994 Agreement, 88 AMERICAN JOURNAL OF INTERNATIONAL
Law 696 (1994). See also statement of William H. Taft IV, Legal Adviser, Department of State, S.
Exec. Rpt. 1 08- 1 0, supra note 28, at 88, 94 [ hereinafter Taft statement ] .
124
Horace B. Robertson Jr.
38. Letter from Herbert J. Hansell, Roberts B. Owen, Davis R. Robinson, Abraham D.
Sofaer, Edwin D. Williamson, Conrad K. Harper, David R. Andrews & Michael J. Matheson to
John W. Warner, Chairman, Committee on Armed Services, United States Senate (Apr. 7, 2004),
reprinted in 98 AMERICAN JOURNAL OF INTERNATIONAL LAW 307 (2004), available at http://
www.oceanlaw.org/downloads/references/endorsements/LegalAdvisorsLetter.pdf.
39. See Moore Prepared Statement, supra note 34, at 8 1 , 89; statement of Rear Admiral Wil-
liam L. Schachte, US Navy (Ret.), Military Implications of the United Nations Convention on the
Law of the Sea, supra note 33, at 104, 108, 1 10 [hereinafter Schachte Statement].
40. See Moore Prepared Statement, supra note 34; Schachte Statement, supra note 39.
41. Statements of the President, supra note 22.
42. 1982 LOS Convention, supra note 21, Part V.
43. Id., art. 252.
44. See statement of Rear Admiral William L. Schachte, S. Exec. Rpt. 108-10, supra note 28,
at 60; statement of Professor John Norton Moore, id. at 50.
45. See Stevenson Statement, supra note 19, at 210.
46. See Statement of Baker Spring, Research Fellow, National Security Policy, Heritage
Foundation, Military Implications of the United Nations Convention on the Law of the Sea, supra
note 33, at 44; see also Jack Goldsmith & Jeremy Rabkin, A Treaty the Senate Should Sink, WASH-
INGTON POST, July 2, 2007, at A 19.
47. 1982 LOS Convention, supra note 21, art. 287.
48. See Message from the President, supra note 26, at 84-85; see also Taft statement, supra
note 37, at 93; "Declarations under Articles 287 and 298" in the Draft Resolution of Advice and
Consent Subject to Declarations and Understandings, S. Exec. Rpt. 108-10, supra note 28, at 17
[hereinafter Draft Resolution],
49. Message from the President, supra note 26, at 87; Taft statement, supra note 37; Draft
Resolution, supra note 48, at 17.
50. Taft statement, supra note 37, at 94.
51. Id. See also Current Status of the Convention on the Law of the Sea: Hearing Before the S.
Comm. on Foreign Relations, 103rd Cong. 51-52 (Aug. 11, 1994) (statement of Ambassador Da-
vid A. Colson).
52. Mat 51.
53. Ocean Policy Priorities in the U.S.: Hearing Before the H. Subcomm. on Fisheries, Wildlife,
and Oceans, 100th Cong. 7 (Mar. 29, 2007) (statement of Admiral James. D. Watkins, US Navy
(Ret.) and the Honorable Leon A. Panetta, Co-chairmen, Joint Ocean Commission Initiative),
available at http://www.jointoceancommission.org/ (follow "Testimony" hyperlink; then "3-29-
2007" hyperlink).
54. President's Statement, supra note 27.
55. See, e.g., Frank Gaffney Jr., LOST at the Helm, WASHINGTON TIMES, May 15, 2007, at
A 15; Henry Lamb, The Law of the Sea Treaty, LOST: The Damn Thing Won't Die, CANADA FREE
PRESS, May 17, 2007, http://canadafreepress.com/2007/lamb051607.htm; Cliff Kincaid, Bush-
backed Law of the Sea Treaty is a Trojan Horse for International Slip and Fall Lawyers,
USASURVIVAL.ORG, Mar. 29, 2007, http://www.usasurvival.org/docs/los.pdf; Phyllis Schlafly,
Deep-six the Law of the Sea, BEND WEEKLY (Oregon), May 18, 2007, available at http://
www.bendweekly.com/print/6036/html; Cliff Kincaid, Last Stand for American Sovereignty,
NEWSWITHVIEWS.COM, May 21, 2007, http://www.newswithviews.com/Kincaid/cliffl52
.htm; Paul M. Weyrich, "UNCLOS" or "LOST" -A Bad Idea Resurfaces, THE CONSERVATIVE
VOICE, May 29, 2007, http://www.theconservativevoice.com/article/25486.html.
125
Historical Perspective on Prospects for US Accession to the LOS Convention
56. Henry Lamb, Warning: LOST Again, WORLDNETDAILY, Jan. 29, 2005, http://
www.worldnctdaily.com/news/article. asp?ARTICLE_ID=42606.
57. Convention on the Territorial Sea and Contiguous Zone art. 1(2), Apr. 29, 1958, 15
U.S.T. 1606, T.I.A.S. No. 5639, 516 U.N.T.S. 205.
58. The United States has a strong current interest in the work of the Commission on the
Limits of the Continental Shelf. It has a large continental shelf, approximately 14 percent of
which is beyond the outer boundary of the 200 mile EEZ. Much of this lies in the Alaskan Arctic,
and with the shrinking of the Arctic icecap this sector becomes increasingly important. Russia is
expected soon to file a claim for a huge area extending from its northern shores to the North
Pole. Statement of Professor John Norton Moore, S. Exec. Rpt. 108-10, supra note 28, at 50, 52.
59. 1982 LOS Convention, supra note 21, art. 252.
60. Informal statement of a Department of Defense representative at the Naval War College,
June 10, 2007. See John D. Negroponte & Gordon England, Reap the Bounty: U.S. should join Law
of the Sea Convention, WASHINGTON TIMES, June 13, 2007, at A17.
6 1 . Press Release, United States Coast Guard, Statement by ADM Thad Allen, Commandant
of the Coast Guard, on the Convention on the Law of the Sea (May 17, 2007), https://
www.piersystem.com/go/doc/786/ 1 569 1 21.
62. Letter from Admirals Thomas H. Collins, James M. Loy, Robert E. Kramek & Paul A.
Yost to Joseph Biden, Chairman, Foreign Relations Committee, United States Senate (Aug. 15,
2007), available at http://www.oceanlaw.org/downloads/CGComm-LOS-Biden.pdf.
63. Jeremy Rabkin, Statement at the American Enterprise Institute forum on the Law of
the Sea Convention (July 17, 2007), quoted in Paul Scott, Law of the Sea Digest, CITIZENS FOR
GLOBAL SOLUTIONS, July 23, 2007, http://globalsolutions.org/blog/index.php/home/2007/07/
23/law_of_the_sea_digest.
126
PART II
LUNCHEON ADDRESS
VI
The Unvarnished Truth:
The Debate on the Law of the Sea Convention
William L. Schachte Jr.*
Good afternoon. Distinguished guests, ladies and gentlemen, friends. Profes-
sor Mandsager, thank you for that kind introduction. It's nice to be intro-
duced by someone you truly respect. It is an honor to be your speaker today. I am
grateful for your gracious hospitality.
Background
The Senate's consideration of US accession to the 1982 United Nations Conven-
tion on the Law of the Sea (1982 LOS Convention)1 this year, as it did when the
Senate last considered the Convention in 2004, has produced an amazing array of
opposition arguments. Well, this is America and protecting our rights, such as free-
dom of speech — which of course includes the right to speak out on or participate in
debates on major issues — is why many Americans have chosen to be members of
our armed forces. However, when examined, the opposition arguments are basi-
cally intellectually bankrupt. Reminds me of the fellow down South who used to la-
ment, "Broke? Man I'm so broke I can't even pay attention."
In fact, I couldn't resist the opportunity to express my true feelings at a forum
sponsored by the Brookings Institution in September 2004. After Senator Lugar's
Rear Admiral, JAGC, United States Navy (Ret.).
The Unvarnished Truth: The Debate on the Law of the Sea Convention
opening remarks, we five panelists were given five to seven minutes each and then
the floor was open for questions. Frank Gaffney asked for and was given the oppor-
tunity to speak first. I followed. I took the full five minutes and these were my
opening comments:
There has been a constant drumbeat of ill-founded criticism predicting near-
apocalyptic doom for the United States if it accedes to the Law of the Sea Convention.
The opponents constantly argue that the Law of the Sea (LOS) Convention will cripple
the U.S. Navy's ability to perform maritime missions necessary for national security,
including collecting intelligence, conducting submerged transits with submarines, and
preventing actions by terrorists. I am compelled to speak out against these misguided
and incorrect beliefs to set the record straight. I certainly respect honest, deliberate
scrutiny of this complex Convention. But, given the repeated misstatements of fact, it is
hard not to conclude that there are some who are engaged in a deliberate, concerted
effort to mislead the public and our government leaders on this important issue for our
nation. It is bad enough to be wrong, but there is something more serious going on
when people ignore facts and are consciously and purposefully wrong. Bottom line:
nothing in the LOS Convention hampers, impedes, trumps or otherwise interferes
with traditional naval activities we currently conduct or will conduct in the future. I
sincerely want to thank the Brookings Institute [sic] for providing this opportunity to
communicate the truth about the LOS Convention.2
You will recall that the Convention's opponents were successful in preventing a
floor vote during the second session of the One Hundred Eighth Congress. It was
almost unprecedented to have a treaty unanimously reported out of committee,
yet fail to go to the full Senate for a vote.
As the One Hundred Tenth Senate considers the 1982 LOS Convention, a num-
ber of items have appeared in the press and online asserting the Convention is con-
trary to US interests.3 The opponents' arguments have been aggressively countered
by the Convention's supporters.4
On October 31, 2007, the Senate Foreign Relations Committee voted seventeen
to four in favor of acceding to the treaty.5 Its report has been sent to the full Senate
for consideration.
The strongest supporters of the 1982 LOS Convention are those directly affected
by it.6 The arguments made by Convention opponents and the Bush administra-
tion's rebuttals from the One Hundred Eighth Senate's consideration of the Con-
vention appear in the written statements of Department of State Legal Adviser
William H. Taft before the Senate Committee on Armed Services on April 8, 2004, 7
before the House Committee on International Relations on May 1 2, 2004,8 and be-
fore the Senate Select Committee on Intelligence on June 8, 2004;9 and in testi-
mony by Assistant Secretary of State John Turner before the Senate Committee of
130
William L. Schachte Jr.
Foreign Relations on October 21, 2003, 10 and before the Senate Committee on En-
vironment and Public Works on March 23, 2004. u This year, testimony in support
of the Convention was provided to the Senate Foreign Relations Committee by
Deputy Secretary of State John Negroponte, Deputy Secretary of Defense Gordon
England and Admiral Patrick Walsh, Vice Chief of Naval Operations, on Septem-
ber 27, 2007.12 The Chairman of the Joint Chiefs of Staff, Admiral Mike Mullen,
stated unequivocally that the Convention advances US interests during his confir-
mation hearings before the Senate Committee on Armed Services on July 31,
2007.13
Opposition Myths
The following is a sampling of the myths regarding the Convention that opponents
continue to trumpet.
President Reagan thought the treaty was irremediably defective.14
This is absolutely false. President Reagan expressed concerns only about Part XI's
deep seabed mining regime.15 In fact, he believed that Part XI could be fixed and
specifically identified the elements in need of revision.16 In response to those con-
cerns, the regime has been fixed in a legally binding manner that addresses each of
the US objections to the earlier regime.17 The rest of the treaty was considered so fa-
vorable to US interests that, in his 1983 Ocean Policy Statement, President Reagan
ordered the government to abide by and exercise the rights accorded by the non-
deep-seabed provisions of the Convention.18
US adherence to the Convention is not necessary because navigational
freedoms are not threatened (and the only guarantee of free passage on the
seas is the power of the US Navy).19
Wrong! It is not true that our navigational freedoms are not threatened. There are
more than one hundred illegal, excessive claims affecting vital navigational and
overflight rights and freedoms. The United States has utilized diplomatic and oper-
ational challenges to resist the excessive maritime claims of other nations that in-
terfere with US navigational rights as reflected in the Convention. But these
operations entail a certain amount of risk, e.g., the Black Sea bumping incident
with the former Soviet Union in 1988. Being a party to the Convention would sig-
nificantly enhance our efforts to roll back these claims by, among other things,
putting the United States in a far stronger position to assert our rights and afford-
ing us additional methods of resolving conflict.
131
The Unvarnished Truth: The Debate on the Law of the Sea Convention
The Convention was drafted before — and without regard to — the war on
terror and what the United States must do to wage it successfully.20
An irrelevant canard. It is true that the Convention was drafted before the war on
terror; however, the Convention enhances, rather than undermines, our ability to
successfully wage the war on terror. The maximum maritime naval and air mobil-
ity- that is assured by the Convention is essential for our military forces to operate
effectively. The Convention provides the necessary stability and framework for our
forces, weapons and materiel to get to the fight without hindrance — and ensures
that our forces will not be hindered in the future. Accordingly, the Convention
supports our war on terrorism by providing important stability for navigational
freedoms and overflight. It preserves the right of the US military to use the world's
oceans to meet national security- requirements. It is essential that key sea and air
lanes remain open as an international legal right and not be contingent upon ap-
proval from nations along the routes. A stable legal regime for the world's oceans
will support global mobility for our armed forces.
Obligatory technology transfers will equip actual or potential adversaries
with sensitive and militarily useful equipment and know-how7 such as anti-
submarine warfare technology.21
Total bunk. Xo technology transfers are required by the Convention. Mandatory
technology transfers were eliminated by Section 5 of the Annex to the Agreement
amending Part XI of the Convention. Further, Article 302 of the Convention ex-
plicitly provides that nothing in the Convention requires a party to disclose infor-
mation the disclosure of which is contrary to the essential interests of its security.
As a non-party, the United States is allowed to search any ship that enters our
exclusive economic zone (EEZ) to determine whether it could harm the United
States or pollute the marine environment. Under the Convention, the US
Coast Guard or others would not be able to search any ship until the United
Nations is notified and approves the right to search the ship.22
Absurdly false. Under applicable treaty law — the 1 958 law of the sea conventions —
as well as customary international law, no nation has the right to arbitrarily search
any ship that enters its EEZ to determine whether it could harm that nation or pol-
lute its marine environment. Xor would we want countries to have such a blanket
"right," because it would fundamentally undermine the freedom of navigation that
benefits the United States more than any other nation. Thus, the description of
both the status quo and the Convention's provisions is incorrect. The Convention
makes no change in our existing ability or authority to search ships entering our
EEZ with regard to security or protection of the environment. One final and very
132
William L. Schachte Jr.
important point: under the Convention, the UN has absolutely no role in US mili-
tary operations, such as in deciding when and where a foreign ship maybe boarded.
Other parties will reject the US "military actMties" declaration as a reservation.-"
A ridiculously false assertion. The US declaration is consistent with the Conven-
tion and is not a reservation. It is an option explicitly provided by Article 298 of the
Convention. Other parties to the Convention that have already made such declara-
tions exercising this option include the United Kingdom, Russia, France, Canada,
Mexico, Argentina, Portugal, Denmark, Ukraine, Norway and China.
The 1994 Agreement doesn't even pretend to amend the Convention; it merely
establishes controlling interpretive provisions.1-
Nonsense. The Convention could only have been formally "amended" if it had already
entered into force. The 1994 Agreement15 was negotiated as a separate agreement
in order to ensure that the Convention did not enter into force with Part XI in its
flawed state. The 1994 Agreement made explicit, legally binding changes to the
Convention and has the same le^al effect as if it were an amendment to the Con-
vention itself.1 -
A letter signed by all living former Legal Advisers to the US Department of State,
representing both Republican and Democrat administrations, confirrns the legallv
binding nature of the changes to the Convention effected by the 1994 Agreement.
Their letter states, "[T]he Reagan Administration's objection to the LOS Conven-
tion, as expressed in 1982 and 1983, was limited to the deep seabed mining regime.
The 1994 Implementing Agreement that revised this regime, in our opinion, satis-
factorily resolved that objection and has binding legal effect in its modification of
the LOS Convention."1'
The problems identified by President Reagan in 1983 were not remedied by
the 1994 Agreement relating to deep seabed mining.1 -
Wrong. Each objection has been addressed. .Among other things, the 1994
Agreement
• Provides for access by US industry to deep seabed minerals on the basis of
non-discriminatory and reasonable terms and conditions;25
• Overhauls the decision-making rules to accord the L'nited States critical
influence, including veto power over the most important future decisions that
would affect L^S interests and, in other cases, requires two-thirds majorities that will
enable us to protect our interests by putting together small blocking minorit: -
and
133
The Unvarnished Truth: The Debate on the Law of the Sea Convention
• Restructures the regime to comport with free-market principles, including
the elimination of the earlier mandatory technology transfer provisions and all
production controls.31
The Convention gives the United Nations its first opportunity to levy taxes.32
A ludicrously false assertion. The Convention does not provide for or authorize
taxation of individuals or corporations. It does include revenue sharing provisions
for oil/gas activities on the continental shelf beyond 200 miles33 and administrative
fees for deep seabed mining operations.34 The costs are less than the royalties paid
to foreign countries for drilling off their coasts and none of the revenues go to the
United Nations. These minimal costs are worth it according to reliable industry
representatives. (US companies applying for deep seabed mining licenses would
pay the application fee directly to the Seabed Authority; no implementing legisla-
tion would be necessary.) US consent would be required for any expenditure of
such revenues. With respect to deep seabed mining, because the United States is a
non-party to the 1982 LOS Convention, US companies currently lack the ability to
engage in such mining under US authority. Becoming a party will give our firms
such ability and will open up new revenue opportunities for them when deep sea-
bed mining becomes economically viable. The alternative is no deep seabed min-
ing for US firms, except through other nations that are parties to the Convention.
The Convention mandates another tribunal to adjudicate disputes.35
The asserted authority of the tribunal is wildly inaccurate. The Convention estab-
lished the International Tribunal for the Law of the Sea. However, parties are free
to choose other methods of dispute settlement. The United States would choose
two forms of arbitration rather than the Tribunal.
The United States would be subject to the Seabed Disputes Chamber if deep sea-
bed mining ever takes place. The proposed Resolution of Advice and Consent
makes clear that the Seabed Disputes Chamber's decisions "shall be enforceable in
the territory of the United States only in accordance with procedures established by
implementing legislation and that such procedures shall be subject to such legal
and factual review as is constitutionally required and without precedential effect in
any court of the United States."36 The Chamber's authority extends only to dis-
putes involving the mining of minerals from the deep seabed; no other activities,
including operations in the water column or on the surface of the oceans, are sub-
ject to it.
134
William L. Schachte Jr.
US adherence will entail history's biggest voluntary transfer of wealth and
surrender of sovereignty.37
To the contrary, the Convention enhances not only sovereignty of military ships
and aircraft, but also bolsters our resource jurisdiction over a vast area off the
coasts of the United States. Furthermore, under the Convention, as superseded by
the 1994 Agreement, there is absolutely no transfer of wealth and no surrender of
sovereignty. In fact, the Convention supports the sovereignty and sovereign rights
of the United States over extensive maritime territory and natural resources off its
coast, including a broad continental shelf that in many areas extends well beyond
the 200 nautical mile limit, and would give us additional capacity to defend those
claims against others. The mandatory technology transfer provisions of the origi-
nal Convention, an element of the Convention that the United States objected to,
were eliminated in the 1994 Agreement.
The International Seabed Authority (ISA) has the power to regulate seven-
tenths of the earth's surface, impose international taxes, etc.38
Nothing could be further from the truth. The Convention addresses seven-tenths
of the earth's surface; however, the ISA does not. The authority of the ISA is strictly
limited to administering mining of minerals in areas of the deep seabed beyond na-
tional jurisdiction, generally more than 200 miles from the shore of any nation. At
present, and in the foreseeable future, such deep seabed mining is economically
unfeasible. The ISA has no other role and has no general regulatory authority over
the uses of the oceans, including freedom of navigation and overflight. The ISA has
no authority or ability to levy taxes.
The United States might end up without a vote in the ISA.39
Not possible. The Council is the main decision-making body of the ISA. The
United States would have a permanent seat on the Council, by virtue of its being
the State with the largest economy in terms of gross domestic product on the date
of entry into force of the Convention, November 16, 1994.40 This would give us a
uniquely influential role on the Council, the body that matters most.
The People's Republic of China asserts that the Convention entitles it to
exclusive economic control of the waters within a 200 nautical mile radius of
its artificial islands — including waters transited by the vast majority of
Japanese and American oil tankers en route to and from the Persian Gulf.41
Wrong again on both facts and law. The US government is not aware of any claims
by China to a 200 mile economic zone around its artificial islands. Any claim that
artificial islands generate a territorial sea or EEZ would be illegal under the
135
The Unvarnished Truth: The Debate on the Law of the Sea Convention
Convention. The Convention specifically provides that artificial islands do not
have the status of islands and have no territorial sea or EEZ of their own.42
Participation in the Law of the Sea Convention would render the Proliferation
Security Initiative (PSI) invalid.43
Wrong and an insult to our military leadership, all of whom strongly support the
Convention. US accession to the Convention would in no way hinder our efforts
under the PSI to interdict vessels suspected of engaging in the proliferation of
weapons of mass destruction. The PSI Statement of Interdiction Principles re-
quires participating countries to act consistently with national legal authorities and
"relevant international law and frameworks," which includes the law reflected in
the 1982 LOS Convention.
Concluding Remarks
Those are the basic arguments. Before going to my predictions, I would like to
stress one point; whether a party or non-party, a robust Freedom of Navigation
Program must be an essential part of US oceans policy. This treaty, or any treaty, is
only effective if it is implemented by action.
Predictions: I'm going to be an optimist here. Considering the favorable vote of
the Senate Foreign Relations Committee, the direct support "in writing" from the
President, the support of the Democratic side of the aisle, as well as support from
Senators Lugar, Stevens, Warner and others, I predict the Convention will get to
the floor and receive the necessary votes for advice and consent. The United States
will finally join the current 155 parties to the Convention.
Having said that, and after observing the Senate maneuvering over the Immi-
gration Bill that is now pending, something "unforeseen" from the far right might
still be possible. But I'm relying on the wisdom of Winston Churchill and his state-
ment: "You can always count on the Americans to do the right thing. Yes, you can
always count on the Americans to do the right thing — after they've exhausted every
other possibility."
Thank you very much again.
Notes
1. United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 3 [here-
inafter 1982 LOS Convention).
2. Author's notes.
3. See, e.g., Frank J. Gaffney Jr., The U.N.'s big power grab, WASHINGTON TIMES, Oct. 2,
2007, at A14, available at http://washingtontimes.com/article/20071002/COMMENTARY03/
136
William L. Schachtejr.
110020010/1012/COMMENTARY%22; Frank J. Gaffney Jr., LOST Runs Silent, Runs Deep,
Townhall.com, Oct. 30, 2007, http://www.townhall.com/columnists/frankjgaffneyjr/archive
.shtml; JeremyRabkin, Defeat the Law of the Sea Treaty, WASHINGTON TIMES, Nov. 13, 2007, at
A22, available at http://www.washingtontimes.com/article/20071 1 13/EDITORIAL/l 1 1 130001/
1013/editorial; U.N. Law of Sea Treaty on Senate fast- track, WorldNetDaily, Sept. 30, 2007, http://
www.worldnetdaily.com/news/article.asp?article_ID=57903; Phyllis Schlafly, Sink The Law Of
The Sea Again, EagleForum.org, Sept. 26, 2007, http://eagleforum.org/column/2007/sept07/07
-09-26.html; Doug Bandow, Bad Treaties Never Die, Rejectlost.blogspot.com, Nov. 15, 2007,
http://rejectlost.blogspot.com.
4. Patrick Neher, In Support of LOST, WASHINGTON TIMES, Dec. 14, 2007, at A18; Ken
Adelman, Sea Law Turbulence, WASHINGTON TIMES, Dec. 12, 2007, at A 16, available at http://
www.washingtontimes.com/article/2007 1 2 1 2/COMMENTARY/ 1 1 2 1 200 1 1 / 1 0 1 2; Letter from
Michael Chertoff, Secretary, US Department of Homeland Security, to Senator Joseph Biden,
Chairman, Committee on Foreign Relations (Sept. 26, 2007), available at http://
www.oceanlaw.org/downloads/HomeSec_Letter-27Sep07.pdf; Letter from Joint Chiefs of Staff
to Senator Joseph Biden, Chairman, Committee on Foreign Relations (June 26, 2007), avail-
able at http://www.jag.navy.mil/documents/test24%20star%20ltr.pdf; Letter from George
Shultz to Senator Richard Lugar (June 28, 2007), available at http://www.jag.navy.mil/docu-
ments/Shultz.pdf [hereinafter Shultz letter]; Patrick Neher, LOST Will Enhance Security,
WASHINGTON TIMES, Nov. 14, 2007, at A20, available at http://www.washingtontimes.com/
apps/pbcs.dll/article?AID=/20071 1 14/EDITORIAL/l 1 1 140015&template=nextpage; Letter
from Stephen Hadley, Assistant to the President for National Security Affairs, to Senator Joseph
Biden, Chairman, Committee on Foreign Relations (Feb. 8, 2007), available at http://
www.jag.navy.mil/documents/HadleyLetter.pdf.
5. S. EXEC. REP. NO. 1 10-9, at 9 (2007), available at www.virginia.edu/colp/pdf/UNCLOS
-Sen-Exec-Rpt-1 10-9.pdf.
6. While I have testified as a private citizen presenting the same or very similar responses to
the critics of the Convention (truth is universal), I have chosen to draw basically from the testi-
mony of Bush administration witnesses to "correct the record." See Advice and Consent to the Law
of the Sea Convention: Hearing Before the S. Comm. on Foreign Relations, 108th Cong. (Oct. 14,
2003) (statement of William L. Schachte Jr.), available at http://foreign.senate.gov/testimony/
2003/SchachteTestimony03 10 14.pdf; Military Implications of the United Nations Convention on
the Law of the Sea: Hearing Before the S. Comm. on Armed Services, 108th Cong. (Apr. 8, 2004)
(statement of William L. Schachte Jr.), available at http://armed-services.senate.gov/statemnt/
2004/April/Schachte.pdf; Closed Hearing Before the S. Select Committee on Intelligence, 108th
Cong. (June 8, 2004) (statement of William L. Schachte Jr.) [unclassified statement available
from author] . See also The UN Convention on the Law of the Sea: Hearing Before the S. Comm. on
Foreign Relations, 1 10th Cong. (Sept. 27, 2007) (testimony of Gordon England, Deputy Secretary
of Defense; John D. Negroponte, Deputy Secretary, US Department of State; and Admiral Patrick M.
Walsh, US Navy, Vice Chief of Naval Operations), available at http://www.senate.gov/~foreign/
hearings/2007/hrg070927p.html [hereinafter Hearing on the Law of the Sea Convention]. See tes-
timony of Admiral Michael Mullen, US Navy (the Chairman of the Joint Chiefs of Staff nomi-
nee) before the Senate Committee on Armed Services (July 31, 2007), available at http://
oceanlaw.org/index.php?name=News&file=article&sid=3 1 .
7. Available at http://armed-services.senate.gov/statemnt/2004/April/Taft.pdf.
8. Available at http://commdocs.house.gov/committees/intlrel/hfa93660.000/hfa93660
_0.HTM.
9. S. EXEC. REP. NO. 1 10-9, supra note 5, at 34-41.
137
The Unvarnished Truth: The Debate on the Law of the Sea Convention
10. Available at http://foreign.senate.gov/testimony/2003/TurnerTestimony031021.pdf.
1 1. Available at http://epw.senate.gov/hearing_statements. cfm?id=2 19509.
12. Statements of all three available at Hearing on the Law of the Sea Convention, supra note 6.
13. Available at http://armed-services.senate.gov/statemnt/2007/July/Mullen%2007-31-07
.pdf.
14. Steven Groves, Why Reagan Would Still Reject the Law of the Sea Treaty, Heritage.org,
Oct. 24, 2007, http://www.heritage.org/Research/InternationalOrganizations/wml676.cfm.
1 5. Statement on United States Participation in the Third United Nations Conference on the
Law of the Sea, 1 PUBLIC PAPERS 92 (Jan. 29, 1982). See also Shultz letter, supra note 4.
1 6. See Statement on United States Participation in the Third United Nations Conference on
the Law of the Sea, supra note 15.
17. Professor Oxman cataloged President Reagan's objections and the ways they were ad-
dressed in the 1994 Agreement in Bernard H. Oxman, The 1994 Agreement and the Convention,
88 AMERICAN JOURNAL OF INTERNATIONAL LAW 687 (1994).
18. Statement on United States Oceans Policy, Mar. 10, 1983, in 1 PUBLIC PAPERS 379
(1983).
1 9. Doug Bandow, Sink the Law of the Sea Treaty, WEEKLY STANDARD, Mar. 1 5, 2004, at 1 6-
17 ("the only sure guarantee of free passage on the seas is the power of the U.S. Navy").
20. Michael D. Huckabee, America's Priorities in the War on Terror, FOREIGN AFFAIRS, Jan-
Feb. 2008, at 155, 155, available at http://www.foreignaffairs.org/20080101faessay87112/
michael-d-huckabee/america-s-priorities-in-the-war-on-terror.html; Tell Congress to REJECT
the Law of the Sea Treaty, RightMarch.com, Dec. 10, 2007, http://capwiz.com/sicminc/issues/
alert/?alertid=10393631.
21. LOST Mandates Technology Transfer, RejectLost.blogspot.com, Sept. 1, 2007, http://
rejectlost.blogspot.com/2007/09/lost-mandates-technology-transfer.html; Cliff Kincaid, Con-
servatives Mobilize Against Law of the Sea Treaty, HumanEvents.com, Sept. 10, 2007, http://
www.humanevents.com/article.php?print=yes&id=22292.
22. The United Nations Convention on the Law of the Sea — Oversight Hearing Before the S.
Comm. on Environment and Public Works, 108th Cong. (Mar. 24, 2004) (statement of Peter
Leitner) ("Ratification of the Treaty would effectively gut our ability to intercept the vessels of
terrorists or hostile foreign governments even if they were carrying nuclear weapons"), available
at http://epw.senate. go v/hearing_statements.cfm?id=2 19545; Frank J. Gaffney Jr., statement Be-
fore id. ("LOST would prohibit U.S. Navy or Coast Guard vessels from intercepting, searching or
seizing them"), available at http://epw.senate.gov/hearing_statements. cfm?id=2 19549; Paul M.
Weyrich, Law of the Sea Treaty Threatens Sovereignty, RenewAmerica.us, Nov. 23, 2004, http://
www.renewamerica.us/columns/weyrich/041123 ("ISA [International Seabed Authority] . . .
[has] the right to determine in what situations our Navy can stop a vessel").
23. Oliver North, Law of the Sea Treaty on Fast Track to Ratification, FOXNews.com, Oct. 1 1 ,
2007, http://www.foxnews.com/story/0,2933,30 1 279,00.html.
24. The Convention on the Law of the Sea: Hearing Before the S. Comm. on Foreign Relations,
100th Cong. (Oct. 4, 2007) (statement of Frank J. Gaffney Jr.) ("The 1994 Agreement Did Not Amend
LOST"), available at http://www.senate.gov/~foreign/testimony/2007/GafnieyTestimony071004
.pdf; Statement of Fred L. Smith Jr., President, Competitive Enterprise Institute, Before id. ("The
problems of LOST have not been fixed. And, indeed, proponents do not really believe that they
have been"), available at http://www.senate.gov/~foreign/testimony/2007/SmithTestimony071004
.pdf.
25. Agreement Relating to the Implementation of Part XI of the United Nations Convention
on Law of the Sea, ( -.A. Res. 263, U.N. GAOR,48th Sess., 101st plen. mtg. U.N. Doc. A/RES/48/263
138
William L. Schachte Jr.
(Aug. 17, 1994), available at http://daccessdds.un.org/doc/UNDOC/GEN/N94/332/98/PDF/
N9433298.pdf?OpenElement [hereinafter 1994 Agreement].
26. Oxman, supra note 17; Louis B. Sohn, International Law Implications of the 1994 Agree-
ment, 88 American Journal of International Law 696 (1994); Jonathan I. Charney, U.S.
Provisional Application of the 1994 Deep Seabed Agreement, id. at 705.
27. Former Legal Advisers' Letter on Accession to the Law of the Sea Convention (Apr. 17,
2004), reprinted in 98 AMERICAN JOURNAL OF INTERNATIONAL LAW 307 (2004).
28. Military Implications of the United Nations Convention on the Law of the Sea: Hearing Be-
fore the S. Comm. on Armed Services, 108th Cong. (Apr. 8, 2004) (statement of Jeane J.
Kirkpatrick) ("the [1994] modifications have not been major. The Treaty is fundamentally the
same"), available at http://armed-services.senate.gov/statemnt/2004/April/Kirkpatrick.pdf.
29. Id., Annex, sec. 1, para. 6(a)(iii).
30. Id., Annex, sec. 3.
31. Id., Annex, sees. 5, 6.
32. Thomas A. Bowden, Deep Six the Law of the Sea, WALL STREET JOURNAL, Nov. 20, 2007,
at A18, available at http://www.aynrand.org/site/News2?page=NewsArticle&id=16115&news
_iv_ctrl=1021; Smith, supra note 24 ("Under the Law of the Sea Treaty, taxpayers in industrial-
ized countries will pay for the privilege of being regulated by a Third World-dominated body");
Doug Bandow, The Law of the Sea Treaty: Turning the World's Resources Over to a Second
United Nations, IPI IDEAS, Sept. 1, 2007, http://www.ipi.org/ipi%5CIPIPublications.nsf/
PublicationLookupFullTextPDF/F9BlA41B3FF334158625736400652B15/$File/LawandSea.pdf
?OpenElement.
33. 1982 LOS Convention, supra note 1, art. 82.
34. 1994 Agreement, supra note 25, Annex, sec. 1, para. 6(a)(ii).
35. Gaffney, supra note 24, at 8 ("LOST's compulsory dispute settlement"); LOST Mandates
Compulsory Dispute Settlement, Rejectlost.blogspot.org, Sept. 1, 2007, http://rejectlost.blogspot
.com/2007/09/lost-mandates-compulsory-dispute.html.
36. Understanding 22 in the Instrument of Ratification, contained in the Commentary ac-
companying the Secretary of State's Letter of Submittal in S. TREATY DOC. NO. 103-39 (2007).
The Commentary may also be found in Law of the Sea Convention: Letters of Transmittal and
Submittal and Commentary, DISPATCH MAGAZINE, Feb. 1995, at 5-52, available at http://
dosfan.lib.uic.edu/ERC/briefing/dispatch/ 1 995/html/Dispatchv6Sup 1 .html; 7 GEORGETOWN
INTERNATIONAL ENVIRONMENTAL LAW REVIEW 87-194 (1994); 34 INTERNATIONAL LEGAL
MATERIALS 1400-1447 (1995); J. ASHLEY ROACH & ROBERT W. SMITH, UNITED STATES RE-
SPONSES TO EXCESSIVE MARITIME CLAIMS 537-653 (2d ed. 1996).
37. Gaffney, supra note 24; Smith, supra note 24; Gaffney, The U.N.'s big power grab, supra
note 3; Gaffney, LOST Runs Silent, Runs Deep, supra note 3; Rabkin, supra note 3; U.N. Law of
Sea Treaty on Senate fast-track, supra note 3; Schlafly, supra note 3; Bandow, supra note 3.
38. Bandow, supra note 32, at 1 ("This may be the first global tax imposed on Americans
without congressional approval"); Bowden, supra note 32; Gaffney, The U.Ws big power grab,
supra note 3 ("So why on earth would the United States Senate possibly consider putting the
U.N. on steroids by assenting to its control of seven-tenths of the world's surface?").
39. Gaffney, supra note 22, at 1 ("Conceivably, due to membership rotation, there could be
times when [the United States] might not even have a vote — to say nothing of a veto — over deci-
sions taken by [the Seabed Authority]").
40. 1994 Agreement, supra note 25, Annex, sec. 3.15(a).
41. Frank J. Gaffney Jr., John Kerry's Treaty: Outsourcing Sovereignty, NATIONAL REVIEW
ONLINE, Feb. 26, 2004, http://www.nationalreview.com/gaffney/gaffney200402261356.asp.
139
The Unvarnished Truth: The Debate on the Law of the Sea Convention
42. 1982 LOS Convention, supra note 1, art. 60(8).
43. Gaffney, supra note 24, at 14 ("LOST Can be Used to Limit the Proliferation Security
Initiative").
140
PART III
MARITIME ENFORCEMENT OF
UN SECURITY COUNCIL RESOLUTIONS
VII
Conflicts between United Nations Security
Council Resolutions and
the 1982 United Nations Convention on the
Law of the Sea,
and Their Possible Resolution
Robin R. Churchill*
Introduction
Since 1990 the UN Security Council has adopted a number of resolutions call-
ing on UN members to take various kinds of action that have the potential,
depending on how those resolutions are interpreted, to interfere with States' naviga-
tional rights under the 1982 United Nations Convention on the Law of the Sea (1982
LOS Convention).1 These resolutions, virtually all of which were explicitly adopted
under Chapter VII of the UN Charter, fall into a number of different categories.
A first category is resolutions providing for the enforcement of sanctions im-
posed under Article 41 of the Charter. They include Resolution 221 (1966)2 (para-
graph 5 of which calls on the British government "to prevent, by the use of force if
necessary, the arrival at Beira of vessels reasonably believed to be carrying oil des-
tined for Southern Rhodesia"); Resolution 665 (1990)3 (paragraph 1 of which calls
on those UN Member States deploying maritime forces in the Persian Gulf to "use
* Professor of International Law, University of Dundee, United Kingdom.
UN Security Council Resolutions and the 1982 LOS Convention
such measures commensurate to the specific circumstances as may be necessary
under the authority of the Security Council to halt all inward and outward mari-
time shipping, in order to inspect and verify their cargoes and destinations and to
ensure strict implementation" of the economic sanctions imposed on Iraq); Reso-
lutions 787 (1992)4 (paragraph 12 of which contains similar provisions in respect
to the former Yugoslavia) and 820 (1993)5 (paragraphs 28 and 29 of which "pro-
hibit all commercial maritime traffic from entering the territorial sea" of the Fed-
eral Republic of Yugoslavia and authorize States to "use such measures
commensurate to the specific circumstances as maybe necessary under the authority
of the Security Council to enforce" this prohibition); Resolutions 875 (1993)6 and
917 (1994)7 (of which paragraphs 1 and 10, respectively, contain provisions in respect
to Haiti similar to those in Resolutions 665 and 787); and Resolution 1132 (1997)8
(paragraph 8 of which contains similar provisions as regards Sierra Leone).9
A second category of Security Council resolutions that have the potential to in-
terfere with States' navigational rights relates to the prevention of trafficking in
weapons of mass destruction (WMD). Such resolutions include Resolution 1540
(2004) 10 (paragraphs 3(c) and 10 of which call on all States to develop effective bor-
der controls to prevent illicit trafficking in WMD and to take cooperative action to
prevent such trafficking "consistent with international law") and Resolution 1718
(2006) ] ] (in paragraph 8(f) of which the Security Council "decides" that in order to
prevent trafficking in WMD with North Korea, all UN Member States should take,
"consistent with international law, cooperative action including through inspec-
tion of cargo to and from" North Korea).
A third, and related, category concerns resolutions to prevent the transfer of cer-
tain materials to particular States. Examples include Resolution 1695 (2006) 12
(paragraph 3 of which "requires all Member States . . . consistent with international
law to . . . prevent missile and missile-related items, materials, goods and technol-
ogy from being transferred" to North Korea) and Resolution 1696 (2006) 13 (para-
graph 5 of which contains similar provisions in respect to Iran). Unlike the
resolutions in the first category, the resolutions in the second and third categories
do not explicitly refer to action being taken against shipping at sea. Nevertheless
their wording seems broad enough to encompass such action, although in the case
of Resolution 1540 its drafting history suggests otherwise.14
A fourth category of Security Council resolutions that have the potential to in-
terfere with 1982 LOS Convention navigational rights relates to the prevention of
terrorism. The main example of such resolutions is Resolution 1373 (2001 ),13 para-
graph 2(b) of which "decides" that all States shall "take the necessary steps to pre-
vent the commission of terrorist acts." There seems to be no reason why such steps
could not include action against ships while at sea.
144
Robin R. Churchill
Last and certainly very far from least is the well-known set of Security Council
resolutions authorizing States to "use all necessary means" (in other words, force)
to achieve a particular goal, including Resolutions 678 (1990)16 (relating to Iraq),
794 (1992)17 (Somalia), 940 (1994)18 (Haiti) and 1264 (1999)19 (East Timor).
There seems no reason why "necessary means" could not cover the use of force di-
rected at ships at sea in addition to the use of force on land and in the air, which are
both clearly covered.
This article will attempt to answer three questions arising from the above reso-
lutions and from possible future Security Council resolutions that could interfere
with navigational rights enshrined in the 1982 LOS Convention:
1. Is there in fact, or is it likely that there could be, a conflict between such
UN Security Council resolutions, however interpreted, and provisions of
the 1982 LOS Convention concerned with navigational rights?
2. If so, are such conflicts resolved by either the UN Charter or the
Convention?
3. Would a dispute settlement body acting under Part XV of the
Convention have the competence to consider and rule on the above two
questions, as well as the competence to interpret relevant UN Security
Council resolutions? Given the breadth and generality of some of the
provisions of the resolutions quoted above, it maybe essential for a 1982
LOS Convention dispute settlement body to interpret these provisions if
it is going to be able to answer questions 1 and 2.20
Before answering these three questions, it is necessary to establish the legal na-
ture of UN Security Council resolutions, in particular whether they are legally
binding. Article 25 of the UN Charter provides that UN members "agree to accept
and carry out the decisions of the Security Council." It is clear, therefore, that "de-
cisions" of the Security Council are binding on UN members. A contrario, any act
adopted by the Security Council that is not a "decision" is not legally binding. This
raises the question as to what acts adopted by the Security Council constitute "deci-
sions" within the meaning of Article 25. The answer to this question depends pri-
marily on the Charter provision under which an act is adopted and on its
wording.21 Measures adopted under Chapter VI, other than decisions to carry out
an investigation under Article 34, are not "decisions" within the meaning of Article
25.22 On the other hand, measures adopted by the Security Council under Chapter
VII are "decisions" if it is clear from their wording that they are intended to be le-
gally binding.23 If the language used by the Council is to "decide" that something is
to be done, that is clearly intended to be legally binding and is thus a "decision"
145
UN Security Council Resolutions and the 1982 LOS Convention
within the meaning of Article 25. The same is true if the Council "requires" or "de-
mands" that States do something. On the other hand, if the Council "encourages"
or "invites" States to do something, that appears intended not to be legally binding
but more in the nature of a recommendation and thus not a "decision" within the
meaning of Article 25. Some terminology is ambiguous. If the Security Council
"calls upon" or "requests" States to do something, it is not always clear simply from
its wording whether this is a "decision" or not. At least one writer has suggested
that "calls upon" is not a decision but is of the nature of a recommendation.24
However, this expression was used in the operative parts of Resolutions 665, 787
and 875, where the Security Council called upon States to enforce the sanctions
that it had imposed on Iraq, the Federal Republic of Yugoslavia and Haiti, respec-
tively, and was clearly regarded both by States and by writers as being intended to
be legally binding.
Question I. Is It Likely or Possible That There Is or Could Be a Conflict between
a UN Security Council Resolution and the 1982 LOS Convention?
It is clear at the outset that there cannot be a conflict in the true sense — a conflict of
norms — where there is incompatibility between a legally binding act (such as a
treaty provision) and a non-legally binding act. Thus, there is no conflict where
there is incompatibility between any act of the UN Security Council that is not a
"decision" within the meaning of Article 25 of the UN Charter and the 1982 LOS
Convention. Only where the Security Council resolution is a "decision" can there
be, at least potentially, a conflict with the Convention. However, some such poten-
tial conflicts are avoided because of provisions either in the resolution or in the
Convention.
In the case of a Security Council resolution, it may authorize or call on UN
members to take action "consistent with international law" (for example, Resolu-
tion 1540 (2004),25 paragraphs 3 and 10 (on the prevention of trafficking in WMD),
and Resolution 1695 (2006),26 paragraph 3 (concerning the transfer of missiles and
related items to North Korea)). Clearly "international law" in this context includes
the 1982 LOS Convention. This means that action taken by UN members under
these resolutions must be consistent with the Convention and so no question of
conflict will arise.
Turning now to the 1982 LOS Convention, several of its provisions stipulate
that navigational rights are subject to other provisions of international law. Thus,
Article 92 provides that while ships on the high seas are in principle under the ex-
clusive jurisdiction of the flag State, this is subject to exceptions "expressly pro-
vided for in international treaties." Likewise, Article 1 10, in setting out the limited
146
Robin R. Churchill
circumstances in which a warship may stop and board a foreign ship on the high
seas, prefaces this with the words "except where acts of interference derive from
powers conferred by treaty." "International treaties" in Article 92 and "treaties" in
Article 110 appear to include the UN Charter, as well as legally binding acts
adopted thereunder, such as a Security Council resolution under Chapter VII.27
Thus interference by a warship of one State with a ship of another State on the
high seas (or in the exclusive economic zone (EEZ)28) pursuant to a Security
Council decision under Chapter VII of the UN Charter will not be in conflict with
the Convention.29
In other situations of interference with navigational rights set forth in the 1982
LOS Convention, the position may not be so clear. Suppose, for example, that a
warship of State A, purportedly acting pursuant to a Security Council resolution
adopted under Chapter VII of the Charter, intercepts a ship registered in State B
that is exercising its right of innocent passage through State C's territorial sea. On
the face of it, the warship's action would violate both the right of innocent passage
of State B's ship and State C's sovereignty over its territorial sea. Under Article 2(3)
of the Convention, a State exercises sovereignty over its territorial sea "subject to
this convention and to other rules of international law." Under Article 19(1) a
ship's right of innocent passage is to "take place in conformity with this convention
and other rules of international law." In each case, the "rules of international law"
presumably include the Charter and legally binding acts adopted thereunder.30 In
the scenario just outlined, the warship of State A, and the Security Council resolu-
tion under which it is acting, would not appear to breach the Convention as far as
the interference with State C's sovereignty over its territorial sea is concerned, since
such sovereignty is "subject to" other rules of international law.31 The interference
with State B's ship may be different, however. Article 19(1) does not say that the
right of innocent passage is "subject to" the rules of international law, but that in-
nocent passage is to take place "in conformity with" other rules of international
law. Both its wording and its context suggest that this provision is directed to the
way in which a ship exercises its right of innocent passage, and could not therefore
cover the acts of the warship of State A. Unless one can argue that passage in con-
formity with the rules of international law includes the notion that a ship in inno-
cent passage is required to allow itself to be interfered with by a warship of a State
other than the coastal State when that warship is acting under a binding Security
Council resolution — and this may be a sustainable argument — there would be a
conflict between the Convention and the resolution in the scenario above. There
would seem to be even more likelihood of a conflict in the case of interference by a
foreign warship with a ship exercising a right of transit passage through an interna-
tional strait because the provisions of the Convention dealing with transit passage
147
UN Security Council Resolutions and the 1982 LOS Convention
do not contain any reference to such passage having to be in conformity with inter-
national law.
In practice so far there has actually been relatively little potential for conflict be-
tween Security Council resolutions and the 1982 LOS Convention, either because
particular resolutions are not legally binding or because the wording of the resolu-
tion or the provision of the Convention at issue avoids conflict by making one sub-
ject to the other. Depending on how one interprets the reference to the "rules of
international law" in Article 19(1) of the 1982 LOS Convention, any actual con-
flicts between navigational rights in the Convention and Security Council resolu-
tions that may exist have largely been in the context of Security Council Resolution
820, which prohibited all commercial shipping from entering the territorial sea of
the Federal Republic of Yugoslavia.
Question 2. Are Conflicts between a Security Council Resolution and the 1982
LOS Convention Resolved by Either the UN Charter or the Convention?
Where a conflict between a Security Council resolution and the 1982 LOS Conven-
tion does arise, how is it to be resolved? Does either the UN Charter or the Conven-
tion provide for its resolution? In the case of the Charter, Article 103 provides that
"in the event of a conflict between the obligations of the members of the UN under
the present Charter and their obligations under any other international agreement,
their obligations under the present Charter shall prevail." Thus, the Charter pre-
vails over any treaty that is in conflict with it, whether that treaty was concluded be-
fore or after the Charter came into force.32 The phrase "obligations under the
present Charter" in Article 103 includes binding decisions adopted by UN bodies
under the Charter, such as decisions adopted by the Security Council under Chap-
ter VII.33 Thus, the latter will prevail over any conflicting treaty provisions.34 The
consequence of Article 103, therefore, is that Security Council resolutions that are
legally binding will prevail over any conflicting provisions of the 1982 LOS
Convention.
Although that appears to resolve the matter, for the sake of completeness one
should also consider what (if anything) the 1982 LOS Convention has to say about
the issue. Article 31 1 of the Convention addresses possible conflicts between the
Convention and a range of other treaties. The latter do not explicitly include the
Charter. Two provisions of Article 311 are potentially relevant to the relationship
of the Charter (and Security Council resolutions) to the Convention. First, para-
graph 2 provides that the Convention "shall not alter the rights and obligations of
States Parties which arise from other agreements compatible with this Convention
and which do not affect the enjoyment by other States Parties of their rights or the
148
Robin R. Churchill
performance of their obligations under this Convention." Obviously, the Charter
as such is compatible with the 1982 LOS Convention, but it is also clear that Secu-
rity Council resolutions adopted under it have the potential to, and on occasions
actually do, affect the enjoyment of States' rights under the Convention. This
might suggest that in such a situation the Convention would prevail over the reso-
lution in question. However, this is negated by Article 103 of the Charter, which
clearly must have priority in this situation since there was no intention on the part
of the drafters of the 1982 LOS Convention to try to override or negate Article 103
of the Charter.35 In any case, any apparent conflict between Article 311(2) of the
Convention and Article 103 of the Charter will in practice on many occasions be
avoided as a result of paragraph 5 of Article 311, which provides that Article 311
(including paragraph 2) "does not affect international agreements expressly per-
mitted or preserved by other articles of this Convention." It was suggested earlier
that the various references to "treaties" and "international law" found in such pro-
visions of the Convention as Articles 2(3), 19(1), 92 and 110 include the Charter
and Security Council resolutions adopted thereunder. It can therefore be argued
that the Charter and Security Council resolutions are permitted or preserved by the
articles in question and therefore that they are not affected by the 1982 LOS
Convention.
Question 3. Would a Dispute Settlement Body Acting under Part XV of the
1982 LOS Convention Have the Competence to Consider and Rule on
Questions 1 and 2 Above?
Rather than try to answer this question in the abstract, an easier way is to consider
what might happen in a hypothetical dispute. Suppose a warship of State A, pur-
portedly acting pursuant to a Security Council resolution, stops a merchant vessel
registered in State B that is exercising a right of innocent passage through the terri-
torial sea of State C, boards it and searches it for WMD. State B then brings a case
against State A before a 1982 LOS Convention dispute settlement body arguing
that State A has breached its vessel's right of innocent passage under the Conven-
tion. State A's defense is that its actions are justified because the reference to "rules
of international law" in Article 19(1) of the Convention requires State B's vessel to
be subject to searches under the Security Council resolution (compare the discus-
sion on this point above); but if this is not the case, the actions of its warship pursu-
ant to the resolution trump the right of innocent passage of State B's ship by virtue
of Article 103 of the Charter. Suppose that the 1982 LOS Convention dispute set-
tlement body rejects State A's first argument. Can it consider its alternative defense
or is this beyond its jurisdiction? At first sight, the latter might indeed appear to be
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UN Security Council Resolutions and the 1982 LOS Convention
the case since Article 288(1) of the Convention limits the jurisdiction of a dispute
settlement body to "any dispute concerning the interpretation and application of
this Convention." A dispute settlement body under the Convention does not,
therefore, have jurisdiction to hear disputes involving other treaties, such as the
UN Charter and acts done pursuant to it. However, there are a number of argu-
ments to suggest that this is an oversimplified approach to Article 288(1) and that
the 1982 LOS Convention dispute settlement body could indeed consider State A's
alternative defense.
Even though the question before the dispute settlement body is whether the acts
of State A that have interfered with State B's rights under the 1 982 LOS Convention
are overridden by the Security Council resolution, the dispute arguably remains
one related to the "application" of the Convention, namely, the alleged breach of
its provisions on innocent passage. Article 293 of the Convention, dealing with ap-
plicable law, provides that a dispute settlement body having jurisdiction under Ar-
ticle 288(1) "shall apply this Convention and other rules of international law not
incompatible with the Convention." This provision would allow the dispute settle-
ment body to consider the Security Council resolution since the phrase "other
rules of international law not incompatible with the Convention" must include the
UN Charter and legally binding acts adopted thereunder. Support for this position
can be found in the judgment of the International Tribunal for the Law of the Sea
in the M/V Saiga (No. 2) case, where, on the basis of Article 293, the Tribunal in-
voked the customary international law rules governing the degree of permissible
force that may be used to arrest ships, to find that Guinea's breach of the 1982 LOS
Convention in illegally arresting the Saiga was compounded by its excessive use of
force.36 The Tribunal also suggested that had the necessary conditions for its appli-
cation been fulfilled (which they were not), Guinea might have been able to rely on
the general international law of necessity to justify its breach of the Convention.37
A second argument to support the competence of a dispute settlement body,
acting pursuant to the 1982 LOS Convention, to consider State A's alternative de-
fense relates to Article 298(1) of the Convention. The latter provides that a State
party may at any time make a declaration excepting from compulsory dispute set-
tlement any dispute to which it is a party concerning military activities, law en-
forcement activities relating to its rights in the EEZ or disputes in respect to which
the UN Security Council "is exercising the functions assigned to it by the Charter of
the United Nations, unless the Security Council decides to remove the matter from
its agenda or calls upon the parties to settle it by the means provided for in this
Convention." Since this is an optional exception to the jurisdiction of a 1982 LOS
Convention dispute settlement body, it presupposes that some disputes involving
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Robin R. Churchill
action taken by the Security Council may come before a Convention dispute settle-
ment body.38
A third argument is a policy one. If in the hypothetical dispute outlined above,
the dispute settlement body could not consider State A's argument based on the su-
periority of the Security Council resolution over provisions of the 1982 LOS Con-
vention, this would lead to the fragmentation of the dispute, with this point having
to be dealt with (if at all) under some other dispute settlement mechanism. It is de-
sirable on grounds of judicial economy not to fragment disputes if this can reason-
ably be avoided. Furthermore, if the argument about the superiority of a Security
Council resolution over a Convention provision were not dealt with by another
body, considerable injustice might be caused, because State A might be found to
have violated the Convention without its perfectly plausible defense based on the
superiority of the resolution being considered at all. Some support for the policy
argument put forward here can be found in remarks made by the President of the
International Tribunal for the Law of the Sea, Judge Wolfrum, in addresses to the
UN General Assembly and before an Informal Meeting of Legal Advisers in 2006. 39
Judge Wolfrum argued, based on the deliberations of the Tribunal judges at their
2006 sessions on administrative and legal matters not connected with cases, that in
a maritime boundary delimitation case the Tribunal had competence not only in
respect to such delimitation but also in respect to associated disputed issues of de-
limitation over land and sovereignty over territory because of their close connec-
tion with the maritime delimitation. Although Judge Wolfrum did not use the
expression "fragmentation of the dispute" explicitly, this position taken by the Tri-
bunal judges seems to be based on a similar idea since President Wolfrum justified
it in part on the basis of the "principle of effectiveness" which "enables the
adjudicative body in question to truly fulfill its function."40
A final argument to support the competence of a 1982 LOS Convention dis-
pute settlement body to consider State A's defense based on the superiority of the
Security Council resolution is the practice of some other international courts, in
particular the European Court of Human Rights. That court's jurisdiction is lim-
ited by Article 32 of the European Convention on Human Rights to "all matters
concerning the interpretation and application of the Convention." Nevertheless,
in a recent case the court held that it was competent to consider whether certain ac-
tions taken under the aegis of the NATO-led Kosovo Force and the UN Mission in
Kosovo amounted to breaches of the Convention.41 Although the Convention con-
tains no provisions on applicable law, the court held that it could not interpret and
apply the Convention "in a vacuum" but "must also take into account relevant
rules of international law when examining questions concerning its jurisdiction."
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UN Security Council Resolutions and the 1982 LOS Convention
Such rules include the UN Charter and Security Council resolutions adopted un-
der Chapter VII.42
If the meaning of the Security Council resolution at issue in the above hypothet-
ical dispute is clear, the matter is relatively straightforward. But if it is not (for ex-
ample, if there is doubt as to whether the resolution is a decision within the
meaning of Article 25 of the Charter or whether its terms authorize the search of
foreign vessels in innocent passage), would the 1982 LOS Convention dispute set-
tlement body have the competence to interpret the resolution? This is an impor-
tant question because Security Council resolutions are often quite vague as to what
action may be taken and where. Article 288(1) might suggest that a Convention
dispute settlement body does not have the competence to interpret Security Coun-
cil resolutions. However, there are arguments to the contrary. First, it would be il-
logical if a 1982 LOS Convention dispute settlement body could apply a Security
Council resolution whose meaning was clear but was precluded from doing so if
the meaning of the resolution was not wholly certain. In any case, the distinction
between applying an apparently clear legal provision and interpreting a legal provi-
sion is not always clear-cut. Secondly, there is support for the proposition that the
Convention dispute settlement body would have the competence to interpret the
resolution at issue from analogous practice by the International Tribunal for the
Law of the Sea. In the Saiga No. 2 case the Tribunal had to discover and articulate
the customary international law relating to the use of force in arresting ships, a not
markedly different exercise from interpreting a written legal text.43 Furthermore,
other international courts whose jurisdictions do not cover the interpretation and
application of the UN Charter and acts adopted thereunder have considered them-
selves competent to interpret Security Council resolutions that are relevant to de-
termining the outcome of the case before them, e.g., the European Court of
Human Rights in Behrami v. France and Saramati v. France et al.44 Thirdly, to say
that a 1982 LOS Convention dispute settlement body may not interpret a Security
Council resolution would again lead to fragmentation of the dispute.
If there are concerns that the interpretation of Security Council resolutions
should be left to the International Court of Justice, as the principal judicial organ of
the United Nations, these concerns may be allayed by pointing out that the conse-
quences of any interpretation of a Security Council resolution by a 1982 LOS Con-
vention dispute settlement body are limited. Any interpretation would be binding
only on the parties to the case, not on other UN members or on the UN Security
Council itself.45
However, it would be going too far to say that a 1982 LOS Convention dispute
settlement body could rule on the legality of a Security Council resolution — this
would clearly exceed its jurisdiction under Article 288(1). That this is so is
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Robin R. Churchill
supported by the practice of other courts. Thus, the European Union's Court of
First Instance has taken the position, based on Articles 25, 48 and 103 of the UN
Charter, as well as European Union law, that it cannot review the lawfulness of Se-
curity Council resolutions, although, curiously perhaps, it has made a limited ex-
ception in the case of possible incompatibility of Security Council resolutions with
ius cogens.46 The European Court of Human Rights has implied that it lacks the ju-
risdiction to question the validity of Security Council resolutions as to do so would
interfere with the effective functioning of the Council under Chapter VII of the UN
Charter.47 Thus, it would seem that if the dispute settlement body found that the
interference by State A's warship with State B's vessel fell within the terms of a le-
gally binding Security Council resolution adopted under Chapter VII, it would
have to accept that the acts of the warship overrode State B's rights under the 1982
LOS Convention. To do otherwise would not only risk interfering with the activi-
ties of the Security Council under Chapter VII but also challenge Article 103 of the
UN Charter. It needs to be asked, however, whether this would be the position if
the Convention dispute settlement body were the International Court of Justice.
Whether the Court may review the legality of Security Council resolutions is a
hotly debated topic,48 but one on which it is not necessary to take a view here. Even
if the Court does have such competence in general terms, it would not appear to
have it where its jurisdiction in a particular case was derived from the 1982 LOS
Convention, as like every other Convention dispute settlement body, its jurisdic-
tion is confined by Article 288(1) of the Convention to disputes "concerning the
interpretation and application" of the Convention.
Finally, it may be noted that a 1982 LOS Convention dispute settlement body
would not be able to hear the dispute if either State A or State B had made a declara-
tion under Article 298 excepting from compulsory dispute settlement "disputes
concerning military activities" and/or disputes in respect to which the Security
Council was exercising its functions under the UN Charter, and such a declaration
covered the dispute between States A and B. However, statistically the chances of
this are slight, as only 19 of the 155 parties to the Convention have made such dec-
larations. Furthermore, the exception in Article 298( l)(c) maybe less far-reaching
than it at first sight appears. Excepted under it are "disputes in respect of which the
Security Council of the United Nations is exercising the functions assigned to it by
the Charter of the United Nations" (emphasis added). In the scenario being dis-
cussed here, the exception will not apply unless there is actually a dispute between
States A and B with which the Security Council is dealing. If State A is merely pur-
portedly acting under a Security Council resolution (as is posited in the scenario
here), the exception will not apply (though of course the military activities excep-
tion may).
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UN Security Council Resolutions and the 1982 LOS Convention
Conclusions
The aim of this article was to consider three questions. As far as the first question is
concerned, whether there are in fact or are likely to be conflicts between UN Secu-
rity Council resolutions and the 1982 LOS Convention (in particular, the latter's
provisions dealing with navigational rights), the answer is that in most cases a con-
flict is or would be avoided either because of the language of the Security Council
resolution (if it states that action to be taken under it should be consistent with in-
ternational law) or because the situation is one where the Convention provides for
the possibility of interference with shipping pursuant to Security Council resolu-
tions. The latter is particularly the case in respect to interferences with foreign mer-
chant shipping by warships on the high seas or in the EEZ. The most likely situation
where a conflict would arise would be where there was interference with a ship
while in the territorial sea by a State, other than the flag or coastal State, purport-
edly acting under a Security Council resolution. Where such a conflict did arise
(turning to the second question), it follows from Article 103 of the UN Charter that
the conflict would be resolved by the UN Security Council resolution taking prior-
ity over the Convention. The third question was whether a 1982 LOS Convention
dispute settlement body would have the competence to decide a dispute involving
an alleged conflict between the Convention and a UN Security Council resolution.
It was argued that notwithstanding Article 288(1) of the Convention, which limits
the jurisdiction of a Convention dispute settlement body to disputes "concerning
the interpretation and application" of the Convention, such a body would have the
competence to rule on an alleged conflict between the Convention and a UN Secu-
rity Council resolution. This follows from the provisions of the Convention on ap-
plicable law, from the fact that exceptions to the jurisdiction of Convention dispute
settlement bodies for disputes involving military matters or the Security Council
are optional, and in order to avoid fragmentation of the dispute. For similar rea-
sons, a 1982 LOS Convention dispute settlement body would also be competent to
interpret a Security Council resolution but it could not question its validity. Sup-
port for the position put forward here is provided by the practice of other interna-
tional courts.
Notes
1. United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 3, avail-
able at http://www.un.0rg/l )epts/los/convention_agreements/texts/unclos/unclos_e.pdf [herein-
after 1982 LOS Convention], These rights set forth in the Convention are those of innocent
passage (arts. 17-32), transit passage through international straits (arts. 37-44), and freedom of
navigation through the exclusive economic zone (EEZ) and the high seas (arts. 58 and 87-1 10).
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Robin R. Churchill
It is generally accepted that these rights also form part of customary international law and thus
are enjoyed by non-parties to the Convention, such as the United States.
2. S.C. Res. 221, UN Doc. S/RES/221(Apr. 9, 1966). The text of all Security Council resolu-
tions referred to in this article can be found on the Council's website at http://www.un .org/
Docs/sc/; then follow "Resolution" and year of resolution hyperlinks.
3. S.C. Res. 665, UN Doc. S/RES/665 (Aug. 18, 1990).
4. S.C. Res. 787, UN Doc. S/RES/787 (Nov. 16, 1992).
5. S.C. Res. 820, UN Doc. S/RES/820 (Apr. 12, 1993).
6. S.C. Res. 875, UN Doc. S/RES/875 (Oct. 16, 1993).
7. S.C. Res. 917, UN Doc. S/RES/917 (May 6, 1994).
8. S.C. Res. 1132, UN Doc. S/RES/1132 (Oct. 8, 1997).
9. For detailed discussion of these resolutions, see Lois E. Fielding, Maritime Interception:
Centerpiece of Economic Sanctions in the New World Order, 53 LOUISIANA LAW REVIEW 1191
(1992-93); Rob McLaughlin, United Nations Mandated Naval Interdiction Operations in the Ter-
ritorial Sea?, 51 International and Comparative Law Quarterly 249 (2002); Alfred H. A.
Soons, Enforcing the Economic Embargo at Sea, in UNITED NATIONS SANCTIONS AND
INTERNATIONAL LAW 307-24 (Vera Gowlland-Debbas ed., 2001).
10. S.C. Res. 1540, UN Doc. S/RES/1540 (Apr. 28, 2004).
11. S.C. Res. 1718, UN Doc. S/RES/1718 (Oct. 14, 2006).
12. S.C. Res. 1695, UN Doc. S/RES/1695 (July 15, 2006).
13. S.C. Res. 1696, UN Doc. S/RES/1696 (July 31, 2006).
14. During the drafting of Security Council Resolution 1540, China insisted that all refer-
ences to "interdiction" should be removed from the text of the resolution. See Douglas Guilfoyle,
Interdicting Vessels to Enforce the Common Interest: Maritime Counter measures and the Use of
Force, 56 INTERNATIONAL AND COMPARATIVE LAW QUARTERLY 69, 76-77 (2007).
15. S.C. Res. 1373, UN Doc. S/RES/1373 (Sept. 28, 2001).
16. S.C. Res. 678, UN Doc. S/RES/678 (Nov. 29, 1990).
17. S.C. Res. 794, UN Doc. S/RES/794 (Dec. 2, 1992).
18. S.C. Res. 940, UN Doc. S/RES/940 (July 31, 1994).
19. S.C. Res. 1264, UN Doc. S/RES/1264 (Sept. 15, 1999).
20. One might also ask whether other dispute settlement bodies (such as the International
Court of Justice when not acting as a 1982 LOS Convention dispute settlement body) would have
such competence, but such an inquiry falls outside the scope of this article. Note also that this ar-
ticle is concerned only with the possible competence of an LOS Convention dispute settlement
body to interpret UN Security Council resolutions, not with how it would interpret such resolu-
tions if it had the competence to do so.
21. The Charter of the United Nations: A Commentary 457 (Bruno Simma ed., 2d
ed. 2002).
22. Id.
23. Id.
24. Michael Byers, Policing the High Sea: The Proliferation Security Initiative, 98 AMERICAN
Journal of International Law 526, 532 (2004).
25. Supra note 10.
26. Supra note 12.
27. This is assumed or implied by several writers, e.g., Byers, supra note 24, at 531 and
Angelos Syrigos, Developments on Interdiction of Vessels on the High Seas, in UNRESOLVED ISSUES
AND NEW CHALLENGES TO THE LAW OF THE SEA 149, 178 (Anastasia Strati, Maria Gavouneli &
Nikolaos Skourtos eds., 2006). The authoritative six-volume UNITED NATIONS CONVENTION
155
UN Security Council Resolutions and the 1982 LOS Convention
ON THE LAW OF THE Sea 1982: A COMMENTARY (Myron H. Nordquist, Shabtai Rosenne & Louis
Sohn eds., 1985) [hereinafter Nordquist et al.] does not consider this issue.
28. Articles 92 and 1 10 of the 1982 LOS Convention apply in the EEZ by virtue of Article
58(2).
29. Although if a Security Council resolution calls for action taken by a warship to be "con-
sistent with international law," a warship will not be able to interfere with a foreign civilian ship
unless the action taken is consistent with the explicit provisions of the 1982 LOS Convention
permitting interference by warships with foreign merchant ships on the high seas (as opposed to
action taken under other treaties referred to in Articles 92 and 110). If this were not so, there
would be scope for a completely circular argument.
30. This is argued by McLaughlin, supra note 9, at 270.
3 1 . This view is, however, implicitly rejected by Soons, who argues that measures under a Se-
curity Council resolution may only be taken in the territorial sea with the consent of the coastal
State. See Soons, supra note 9, at 323. The opposite position is taken by McLaughlin, supra note 9,
at 272-77.
32. The Charter of the United Nations: a Commentary, supra note 21, at 1297-98.
33. Id. at 1295-96.
34. Id. at 1295-96 and 1300. See also Questions of Interpretation and Application of the 1971
Montreal Convention arising from the Aerial Incident at Lockerbie (Libya v. U.S.) (Provisional
Measures), 1992 ICJ REP. 3, para. 39 (Apr. 14), available at http://www.icj-cij.org/docket/ files/
89/72 13.pdf.
35. Compare Article 30 of the Vienna Convention on the Law of Treaties and the Interna-
tional Law Commission's commentary on its draft treaty article that eventually became Article
30 in II Yearbook of the International Law Commission 214-16 (1966).
36. M/V Saiga (No. 2) (St. Vincent v. Guinea), 120 I.L.R. 143, paras. 155-59 (Int' Trib. L. of
the Sea 1999), 38 INTERNATIONAL LEGAL MATERIALS 1323 ( 1999), available at http://www.hios
.org/start2_en.html (then Proceedings and Judgments, then List of Cases).
37. Id., paras. 132-35.
38. But compare Nordquist et al., supra note 27, Vol. V, at 138, which argues that the pur-
pose of the exception in Article 298( 1 )(c) is to prevent a conflict between any dispute settlement
proceedings under the 1982 LOS Convention and any action the Security Council is taking to
maintain international peace and security. However, with great respect to the learned editors,
this argument does not appear to be correct. The point they make would only hold true if Article
298( 1 )(c) were a general exception, not an optional exception.
39. Riidiger Wolfrum, President, International Tribunal for the Law of the Sea, Statement to
the General Assembly of the United Nations paras. 5-8 (Dec. 8, 2006), http://www.hios .org/
start2_en.html (then follow "News" hyperlink; then follow "Statements of the President"
hyperlink). See also Riidiger Wolfrum, Statement to the Informal Meeting of Legal Advisers of
Ministries of Foreign Affairs 3-7 (Oct. 23, 2006), available at id.
40. Statement by President Wolfrum to the General Assembly, supra note 39, para. 7.
41. Decision on admissibilty of the Grand Chamber of the European Court of
I luman Rights in Behrami v. France and Saramati v. France et al. para. 122 (May 31,
2007), available at http://cmiskp.echr.coe.int/tkp 197/viewhbkm.asp?action=open&table=
l-69A27I-i)8FB86142BF01C1166DEA398649&key=62605&sessionId=10475686&skin =
hudoc-en&attachment=true.
42. Id.
43. Supra note 36, para. 156.
156
Robin R. Churchill
44. Supra note 41, paras. 123-43. However, the Court did say that it was "not its role to seek
to define authoritatively the meaning of provisions of the UN Charter and other international in-
struments" (para. 122, emphasis added).
45. See 1982 LOS Convention, supra note 1, art. 296(2). Concerns should also be allayed by
the approach of the European Court of Human Rights outlined in the previous note, where the
Court stressed that it was not giving an authoritative interpretation.
46. See Case no. T-306/1, Yusuf v. Council and Commission, [2005] II-E.C.R. 3533, paras.
272-77. The Court has maintained this position in later cases: see, e.g., Case T-3 15/01, Kadi v.
Council, [2005] II-E.C.R. 33649, paras. 217-31 and Case T-253/02, Ayadi v. Council, [2006] II-
E.C.R. 2139, para. 116. Kadi has been appealed from the Court of First Instance to the Court of
Justice (as Case C-402/05). As of September 20, 2007 the Court had not given its judgment. In
none of the cases did the Court of First Instance find any breach of the rules of ius cogens.
47. Behrami v. France and Saramati v. France et al., supra note 41, para. 149.
48. See, e.g., Dapo Akande, The International Court of Justice and the Security Council: Is
There Room for Judicial Control of Decisions of the Political Organs of the United Nations?, 46 IN-
TERNATIONAL AND COMPARATIVE LAW QUARTERLY 309 (1997); Vera Gowlland-Debbas, The
Relationship between the International Court of Justice and the Security Council in the Light of the
Lockerbie Case, 88 AMERICAN JOURNAL OF INTERNATIONAL LAW 643 (1994); Geoffrey R. Wat-
son, Constitutionalism, Judicial Review and the World Court, 34 HARVARD INTERNATIONAL LAW
JOURNAL 1 (1993).
157
PART IV
LAW OF ARMED CONFLICT
VIII
Starting from Here
Ashley S. Deeks*
I. Introduction
Professor Garraway and the organizers of this panel asked me to address a
piece by Professor Adam Roberts entitled "Detainees, Torture, and Incom-
petence in the 'War on Terror.'"1 As the title indicates, the piece is highly critical of
US actions over the past six years, and uses a review of three different books as a
launch pad for its arguments. In brief, Professor Roberts takes a largely retrospec-
tive look at US detention and interrogation policies since September 11, 2001, ar-
guing that a number of US decisions along the way led to the abuses at Abu Ghraib.
He recognizes that it is complicated to apply the law of war to certain individuals
fighting US forces in different conflicts, but he concludes that the President's deci-
sion to treat them "humanely" in 2002 did not provide a clear legal framework and
charges the Bush Administration with both bad intentions and incompetence.
Professor Roberts discusses the legal and policy confusion that currently exists in
Afghanistan among the International Security Assistance Force (ISAF) and the
government of Afghanistan related to detainee treatment, and proposes that
NATO establish rules for treatment of detainees who are not entitled to prisoner of
war status. Finally, he reflects the often-heard concern about a perceived threat to
US separation of powers principles and concludes that the resort by the United
* Attorney- Adviser, US Department of State, Office of the Legal Adviser. The views expressed
herein are those of the author and do not necessarily represent the views of either the United
States government or the Department of State.
Starting from Here
States to a "war on terror" paradigm leaves quite a bit to be desired, even in the
wake of all of the changes the US government has put in place since September 1 1 .
By way of response, I will spend my time discussing three issues: where US law
and policy currently stand in the three conflicts the United States is fighting, the
processes by which we arrived at our current positions, and how we might address
some of the ongoing legal and operational confusion in Afghanistan among NATO
allies. In focusing on the current state of US law and policy, I do not mean to sug-
gest that several still-unresolved debates about the applicability of the Geneva Con-
ventions— and of the war paradigm to our struggle with al Qaeda more generally —
are irrelevant. But to move this multiyear dialogue forward, I think it is important
to use the current state of play as the jumping-off point, whatever one may think of
the decisions that the United States made in the immediate aftermath of September
11,2001.
Before I dive in, I would like to say something about the abuses of detainees de-
scribed in the books that Adam Roberts has reviewed. Like many in the US govern-
ment, including the military itself, I will not and cannot defend that abuse. Events
like Abu Ghraib have been devastating to the reputation of the United States, espe-
cially in European and Arab States. Professor Roberts raises a number of argu-
ments about the conflicts in Iraq and Afghanistan and with al Qaeda with which I
do not agree, and which I look forward to addressing. But I wanted to make clear
up front that detainee abuse warrants no defense.
II. Where We Are Now — A Snapshot
The State Department's Legal Adviser, John Bellinger, spent a week in January
serving as a guest blogger on Opinio Juris, a website devoted to international law
and politics. He posted pieces on Common Article 3, unlawful belligerency and the
US conflict with al Qaeda, among other topics.2 Professor Garraway served as a
guest respondent and opened his post with an old Irish saying. The saying involves
a foreigner who asks an Irishman for directions from his current location to the
nearest town. The Irishman tells him, "Well, I wouldn't start from here!"3 But
"here" is precisely where I would like to start. As I noted, Professor Roberts con-
cludes his review with an assertion that the United States continues to rely on
flawed structures and rules to deal with its conflict with al Qaeda, and bemoans
where the United States has ended up in 2007. To evaluate this conclusion, let's
take a snapshot of where we are right now, putting aside the various legal develop-
ments that have gotten us to this point.
Because different legal paradigms apply to US conflicts in Iraq and Afghanistan
and with al Qaeda, I will treat each of them separately.
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Ashley S. Peeks
A. Afghanistan
ISAF is operating in Afghanistan under (most recently) UN Security Council Reso-
lution 1707, a Chapter VII resolution that authorizes member States participating
in ISAF to "take all necessary measures to fulfil its mandate."4 The United States
takes part in ISAF and also continues to lead a coalition called Operation Enduring
Freedom (OEF), the force that intervened in Afghanistan in November 2001 after
the United States decided to respond in self-defense following the September 1 1 at-
tacks. The United States has not formally revisited its view that the conflict in Af-
ghanistan is an international armed conflict. The argument that it remains an
international armed conflict is based on the fact that the US government and the
coalition forces that are part of ISAF and OEF continue to fight the same entities
that OEF began to fight in 2001, at which time it clearly was an international armed
conflict between the United States and the Taliban.
In this ongoing conflict, the United States applies the rules on targeting appro-
priate to international armed conflict — most notably, distinction and proportion-
ality, as well as limitations on the use of certain weapons. Professor Roberts
acknowledged US targeting rules in a talk he gave at the Brookings Institution in
2002, where he stated, "In the conduct of the air war [in Afghanistan] , as in Iraq in
'91 and as also in Serbia in '99, the United States clearly accepted the relevance and
indeed value of the rules restricting targeting to militarily significant targets and I
think that needs to be frankly and honestly recognized."5 US Department of De-
fense (DoD) policy, as reflected in the DoD directive on the Law of War Program,
is that
members of the DoD Components comply with the law of war during all armed
conflicts, however such conflicts are characterized, and in all other military operations,
and that the law of war obligations of the United States are observed and enforced by
the DoD Components and DoD contractors assigned to or accompanying deployed
Armed Forces.6
The Directive defines "the law of war" as encompassing "all international law for
the conduct of hostilities binding on the United States or its individual citizens, in-
cluding treaties and international agreements to which the United States is a party,
and applicable customary international law." This reflects a decision by the US mil-
itary that, as a general matter, applying the rules of international armed conflict to
all conflicts however characterized (1) is the right thing to do as a moral and hu-
manitarian matter and (2) gives the military a single standard to which to train.
The US processing and treatment of detainees in Afghanistan is governed by
several laws and policies. To ensure that we are detaining only those people who
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Starting from Here
pose a security threat, we have established status review processes (just as we have
in Iraq and at Guantanamo). The first review takes place at the time of capture to
determine if the person being detained is an enemy combatant. The second review
occurs usually within seventy-five days and in no event more than a hundred days
of the individual's coming into DoD custody. The review is based on all reasonably
available and relevant information. A detainee's status determination maybe sub-
ject to further review if additional information comes to light. The combatant
commander may interview witnesses and/or convene a panel of commissioned of-
ficers to make a recommendation to him. That commander must review the de-
tainee's status on an annual basis, although he has tended to do so every six
months. The Review Board also nominates certain Afghan detainees for entry into
Afghanistan's reconciliation program. The government of Afghanistan then vets
the nominees and selects some to return to their village elders to be reintegrated.7
We also have established clear treatment rules. First, the Detainee Treatment
Act of 2005 (DTA) makes clear that no detainee in US custody or control, regard-
less of where he is held or by which US entity, may be subjected to cruel, inhuman
or degrading treatment,8 as those terms are understood in the US reservations to
the Convention Against Torture (CAT).9 Second, the DoD detainee directive is-
sued in September 2006 provides that "all detainees shall be treated humanely and
in accordance with U.S. law, the law of war, and applicable U.S. policy." 10 The latter
further states that all persons subject to the Directive shall apply at a minimum the
standards articulated in Common Article 3 of the 1949 Geneva Conventions with-
out regard to a detainee's legal status. The Directive also requires that detainees not
be subjected to public curiosity, reprisals, medical or scientific experiments, or sen-
sory deprivation. And it states that all persons in DoD control will be provided with
prisoner of war protections until a competent authority determines some other le-
gal status. Some have expressed concern that the rules in the Detainee Directive are
policy protections, not legal protections. But soldiers who mistreat detainees can
be prosecuted under the Uniform Code of Military Justice (UCMJ).
Finally, interrogations of individuals in DoD custody, wherever held, are gov-
erned by the Army Field Manual on Human Intelligence Collector Operations,
which is publicly available, and which expressly prohibits a number of interroga-
tion techniques, including using military working dogs, inducing hypothermia or
heat injury, applying physical pain, and placing hoods or sacks over the eyes of
detainees.11
Does all this mean that the conflict in Afghanistan no longer poses hard legal,
policy or tactical questions? It does not. These are the US rules, but thirty-seven na-
tions contribute to ISAF, and each contingent operates within a different legal
framework. The contributing member States have different views about what type
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Ashley S. Peeks
of conflict exists in Afghanistan; some question whether an armed conflict exists at
all. I will address lingering complications about the situation in Afghanistan later
in this article.
B. Iraq
The activities of the Multi-National Force-Iraq (MNF-I) currently are governed by
a UN Security Council resolution issued pursuant to Chapter VII. Under Resolu-
tion 1546, which the Security Council adopted unanimously on June 8, 2004, the
mandate of MNF-I is "to take all necessary measures to contribute to the mainte-
nance of security and stability in Iraq in accordance with the letters [from Secretary
of State Powell and then-Iraqi Prime Minister Ayad Allawi] annexed to this resolu-
tion."12 The annexed letters describe a broad range of tasks that MNF-I may under-
take to counter "ongoing security threats," including "internment where this is
necessary for imperative reasons of security."13 The letter from Secretary Powell
states that the "forces that make up the MNF are and will remain committed at all
times to act consistently with their obligations under the law of armed conflict, in-
cluding the Geneva Conventions."14
Security Council Resolution 1546 required review of the MNF-I mandate
within twelve months. Subsequent resolutions have extended this authority tem-
porally— most recently Resolution 1723, which extends the Resolution 1546 man-
date until December 2007. Resolution 1723 affirms the importance for all forces
promoting security and stability in Iraq to act in accordance with the law of armed
conflict, and the annexed letter from Secretary Rice states that the forces that make
up MNF-I remain committed to acting consistently with their obligations and
rights under international law, including the law of armed conflict.15
The detention standard contained in Resolution 1546 ("imperative reasons of
security") is drawn directly from Article 78 of the Fourth Geneva Convention,16
and was included in the annexed letters to indicate that the same basis for
detentions that coalition forces applied before June 28, 2004 would continue to ap-
ply after governing authority was transferred to the sovereign government of Iraq.
Domestic Iraqi law (in the form of CPA Memorandum No. 317) provides detailed
requirements for the conditions and procedures for security internment, including
review of detention within seven days, as well as further periodic reviews. These pe-
riodic reviews occur in the form of the Combined Review and Release Board
(CRRB), a majority-Iraqi board that assesses the threat posed by each detainee.18
Memorandum No. 3 states that the operation, condition and standards of any in-
ternment facility established by MNF-I shall be in accordance with the Fourth
Geneva Convention, Part III, Section IV.19 (This includes requirements to provide
internees with food, water, clothing and medical attention, and give them- the
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Starting from Here
ability to hold religious services, engage in physical exercise, and send and receive
letters.) Memorandum No. 3 requires MNF-I to release individuals from security
internment or transfer them to the Iraqi criminal justice system no later than eigh-
teen months from the date of detention, unless further detention is approved by
the Joint Detention Committee, which is staffed by senior officials.20 The CPA
Memorandum also provides for guaranteed International Committee of the Red
Cross (ICRC) access to internees.21
To break my own rule and dive backward into history, I want to correct
misimpressions about whether the United States as a government ever asserted
that the Geneva Conventions did not apply to its conflict with the government of
Iraq in 2003 and the subsequent occupation of Iraq. Professor Roberts refers in his
review of Mark Danner's book Torture and Truth to an excerpt of an e-mail written
in mid-August 2003 from a captain in military intelligence in Iraq.22 That e-mail
suggests that the captain believed that he could apply different rules of engage-
ment and interrogation techniques to "unlawful enemy combatants" detained in
Iraq. Danner also cites an effort by Lieutenant General Ricardo Sanchez, then-
Commander MNF-I, to change the legal status of some of those detained to "unlaw-
ful enemy combatants";23 however, General Sanchez did not have the authority to
make that determination. Indeed, this was not and did not become US policy. In
mid-2004, then-Secretary of Defense Donald Rumsfeld stated, "Iraq's a nation.
The United States is a nation. The Geneva Conventions applied. They have applied
every single day from the outset."24
Similarly, in his commentary The Torture Memos,25 Josh Dratel fails to distin-
guish between the different rules that apply to Afghanistan, Guantanamo and Iraq;
he is not correct when he asserts that the United States desired to abrogate the
Geneva Conventions with respect to the treatment of persons seized in the context
of armed hostilities in Iraq. The Geneva Conventions applied directly to that con-
flict up to the end of occupation on June 28, 2004, and continued to apply — as the
Conventions require — to any individual who remained detained as a prisoner of
war or protected person. The Security Council resolutions, the annexed letters re-
ferring to MNF-I compliance with the laws of war and CPA Memorandum No. 3
now provide the governing rules for MNF-I, and US laws such as the Detainee
Treatment Act26 and the War Crimes Act27 provide additional rules for the US con-
tingent of MNF-I.
C. Conflict with al Qaeda
The United States is aware that many States and scholars continue to be skeptical
that a State can be in an armed conflict with a non-State actor primarily outside
that State's territory. However, the United States, for reasons the State Department
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Ashley S. Peeks
Legal Adviser has set forth publicly in some detail, continues to believe that such a
conflict can and does exist. The US Supreme Court has supported that view, most re-
cently in Hamdan v. Rumsfeld.28 In the wake of that opinion, the protections of Com-
mon Article 3 apply to all members of al Qaeda detained in that conflict. Those al
Qaeda members we detain in Afghanistan and Iraq are subject to the detention and
review provisions I have already described. The treatment of al Qaeda members de-
tained at Guantanamo is governed by the DTA and the Army intelligence collec-
tion manual.29 (All of the detainees there are in DoD custody.) Further, because the
Supreme Court has held that our conflict with al Qaeda is a non-international
armed conflict, the Military Commissions Act (MCA)30 provisions that criminalize
violations of most provisions of Common Article 3, including torture, cruel treat-
ment, intentionally causing serious bodily injury, rape and mutilation, would ap-
ply to those who mistreat al Qaeda detainees. The ICRC has access to everyone held
at Guantanamo.
The detention review process for individuals held at Guantanamo, many of
whom are associated with al Qaeda, is somewhat different from review processes in
Iraq and Afghanistan. I assume that the readers are familiar with the Combatant
Status Review Tribunals (CSRTs), by which the United States determines whether
these individuals are in fact enemy combatants. As recently updated in the MCA,
detainees may appeal their CSRT determination to a federal civilian court, the DC
Circuit Court of Appeals. That Court, in the Bismullah v. Gates and Parhat v. Gates
cases, currently is considering the evidentiary standards by which it will review
CSRT decisions.31 There is another process by which the United States reviews on-
going detention in Guantanamo: when the CSRT upholds a detainee's status as an
enemy combatant and the United States does not intend to prosecute the detainee
in a military commission, the detainee receives an annual review by an Administra-
tive Review Board (ARB), which assesses whether he continues to pose a serious se-
curity threat to the United States. Hundreds of individuals have been released from
Guantanamo since it opened, under the CSRT and ARB processes.
These processes are more detailed and more regularized than the Article 5 tribu-
nals that the Third Geneva Convention delineates for cases of doubt regarding
prisoner-of-war status. This is so because we are trying to balance — on the one
hand — the fact that the law of war recognizes that a State can detain enemy com-
batants fighting against it until the end of the conflict with — on the other hand —
an acknowledgment that the end of this conflict may be a long way off. The United
States is aware of concerns about indefinite detention that flow from the fact that
this conflict is of indefinite length and has taken these steps so that we are not hold-
ing anyone longer than necessary.
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Starting from Here
D. Hard Questions
This is where the law, rules and procedures have ended up in mid-2007. 1 will leave
it for others to discuss whether or how Abu Ghraib might have been avoided. But
in any case it should be clear that these issues are hard, and getting it right has taken
some trial and error. We are not the first government to have grappled with diffi-
cult questions at the beginning of a period of violence and terrorist attacks, and we
will not be the last. Professor Roberts has described elsewhere the fact that the
United Kingdom initially ignored international standards of treatment in North-
ern Ireland, which "led them into terrible trouble."32 In fact, the United Kingdom
in the initial, militarized phase of the "Troubles" occasionally used "war talk," al-
though, unlike the United States, the government generally did not characterize
the fighting as an armed conflict in the legal sense.33 The UK government resorted
to detention without charge and interrogation techniques that the European Court
of Human Rights later deemed to violate the European Convention on Human
Rights (ECHR). Professor Roberts makes a fair point about the lessons of history in
his book review: any State fighting a non-State actor, including the United States,
would be well served to pay attention to the examples of the United Kingdom in
Ireland and the French in Algeria. I was not working on these issues at the time, but
I expect that there was a strong belief that an attack by nineteen terrorists that killed
over three thousand people in one day lacked historical precedent in key ways.
Even Professor Roberts recognizes that it was not obvious how to apply existing
laws and rules to this type of non-State actor.
If application of law of war rules to the conflict with al Qaeda were easy, we
would not see so many people — in foreign governments, non-governmental orga-
nizations and the academy — hold so many different views on how to treat this con-
flict. Some say it is not an armed conflict, so the United States should have used law
enforcement measures to quash al Qaeda after the 9/11 attacks. Others say that
there is an armed conflict in Afghanistan, but that a State cannot be in an armed
conflict with a non-State actor outside its territory without also being in an armed
conflict with the State in which the non-State actor is operating. Yet others ac-
knowledge that a State can be in an extraterritorial armed conflict with a non-State
actor when hostilities between those groups meet the threshold level of violence
that constitutes an armed conflict. The US government has explained elsewhere
why exclusive reliance on a law enforcement paradigm was not possible, and de-
scribed how the UN Security Council and NATO have recognized that non-State
actors can engage in armed attacks against States at a level to trigger that State's
right of self-defense. But we recognize that others do not agree.
Even the more traditional conflicts are complicated. The Geneva Conventions
provide rules for a three-stage process: armed conflict between States, occupation
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Ashley S. Peeks
by one State of the other State and peace. But what happens when, as in Iraq, armed
conflict continues after occupation ends? What is the status of the many different
conflicts in Iraq? Or in Afghanistan, where a new government took power less than
a year after the fighting began, but the conflict between the United States and the
Taliban continues? If the Afghan conflict has switched from international to non-
international, what does that mean for those detained in the international phase of
the conflict? Does it matter for allies in a coalition with a host government how that
host characterizes the violence? Can Chapter VII resolutions render some of these
questions moot? These are not easy questions, and we continue to work with our
allies to find good answers.
III. How We Got Here— The US System
With regard to the United States and the three armed conflicts I have discussed,
many look at the glass as still half-empty. This seems to be due at least in part to the
suspicion about the United States that the last five years has engendered among le-
gal scholars, European allies and human rights advocates. These views are colored
by abuses in Guantanamo and Abu Ghraib, by objections to the CIA interrogation
program and undisclosed detention facilities overseas, and concern about the use
of renditions. But one may also look at the current state of law and practice as a
glass half- full, where the United States has built on the decisions made in 2001-02
to move to a clear, robust framework for treatment, where everyone knows the
rules. In addition to assessing the substance of the current rules, I also want to talk a
bit about the process by which we arrived "here," because that process is another
reason to be optimistic about the United States.
We arrived "here" in 2007 as the result of vigorous debate and activity within
each of our three branches of government. The executive branch established a
number of detainee policies related to the conflict with al Qaeda and the Taliban
in Afghanistan and set up military commissions to try those suspected of war
crimes and related offenses. In 2001, Congress passed the Authorization to Use
Military Force,34 and later enacted the Detainee Treatment Act and the Military
Commissions Act. The federal courts have opined on several of these executive de-
cisions about detainee policies and military commissions, and on the MCA. This,
in my view, speaks to the strength of the US constitutional system. Professor Rob-
erts expresses a sense that our bedrock separation of powers principles are threat-
ened and suggests that the executive branch has dominated the decision making.
Consider, however, recent comments by Professor Neil Katyal, who argued the
Hamdan case in the Supreme Court on behalf of the detainee. He states, "I believe
that the Hamdan decision — which invalidated the President's system of military
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Starting from Here
commissions — represents a historic victory for our constitutional process, and, in
particular, the role of the United States Congress and federal judiciary in our tri-
partite system of government."35 He also stated:
[A]s a student of history, I know it's hard for the Supreme Court in a time of armed
conflict to rebuke the President And here the Administration has managed to [lose
a case during armed conflict] several times .... [The Department of Justice] said . . .
[detainees] won't have habeas corpus rights. Well, the Supreme Court said no in the
Rasul case. The Administration said that U.S. citizens can be held indefinitely
incommunicado. The Supreme Court said no in Hamdi. The Administration said, you
can have military commission [sic] and try these people. The Supreme Court said no in
Hamdan?6
The justices themselves seem confident that our separation of powers is healthy.
In Justice Breyer's concurring opinion in Hamdan, he writes that the Court's con-
clusion "ultimately rests upon a single ground: Congress has not issued the Execu-
tive a 'blank check.'"37 He further describes the majority opinion as keeping "faith
in those democratic means" necessarily implicit in the Constitution's tripartite
structure. These statements recall Justice Souter's concurrence in Hamdi, in which
he stated, "For reasons of inescapable human nature, the branch of government
asked to counter a serious threat is not the branch on which to rest the Nation's re-
liance in striking the balance between the will to win and the cost in liberty on the
way to victory . . . ,"38
Many, including Professor Roberts, might have wished for us to get to this place
in the first instance — to get it right immediately after September 2001, with cool
heads and a clear understanding of the lessons of history. It would have saved years
in litigation, permitted the United States to try detainees accused of war crimes
much faster and avoided significant tension with European allies — but we did not
develop on September 12 all of the processes and laws we have in place now. It is
important to recognize, however, that the Supreme Court has confirmed several of
the Administration's basic legal positions with respect to its detention policies. It
has confirmed that the United States is in a state of armed conflict with al Qaeda. It
has confirmed that the law of war, and in particular Common Article 3 of the
Geneva Conventions, applies to that conflict.
More fine-tuning is likely to follow because there are several important cases
pending or on appeal in our courts. I already mentioned the Parhat case, where
the DC Circuit will decide whether it can look to documents beyond those con-
tained in a detainee's CSRT record to determine whether to uphold the CSRT de-
termination. A panel of the Fourth Circuit recently decided the Al Marri case.39 In
2003, the United States detained al Marri as an enemy combatant; at the time of al
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Ashley 5. Peeks
Marri's detention he resided in the United States. (He has been held in a brig in
South Carolina since that time.) The United States agreed that the detainee had
constitutional rights, including a right to habeas corpus, but argued that the Mili-
tary Commissions Act applied to him, and that Congress in the MCA had created
an adequate and effective substitute by which al Marri could contest his detention.
The Fourth Circuit panel held that the Military Commissions Act did not apply to
al Marri; that the Court therefore had jurisdiction over his habeas corpus claim;
that al Marri had constitutional due process rights; and that, despite the Presi-
dent's determination in 2003 that al Marri was an enemy combatant closely asso-
ciated with al Qaeda, the United States could not detain al Marri as an enemy
combatant because it had not properly determined that he ( 1 ) was a citizen or
member of an armed force at war with the United States, (2) was seized on or near
a battlefield on which an armed conflict with the United States was taking place,
(3) was in Afghanistan during the armed conflict there, or (4) directly participated
in hostilities against the United States or its allies.40 The Court granted al Marri ha-
beas relief, while noting that the US government was free to prosecute him for
criminal offenses.41 The United States has appealed this decision, seeking rehear-
ing en banc.
Another court will consider whether Majid Khan, one of the fourteen detainees
brought to Guantanamo Bay in September 2006 and someone to whom the US
government previously had granted asylum, has a constitutional right to habeas
corpus. And as military commissions get under way, we should expect to see ap-
peals of final commission decisions to the DC Circuit, which will need to interpret
the standards of review contained in the DTA, as amended by the MCA. And it is
clear, even now, that the military judges are acting independently. In the Khadr and
Hamdan cases, the two military judges dismissed the prosecution cases without
prejudice. The basis for their decisions was that the CSRTs had not determined that
the accused were "unlawful" enemy combatants (a prerequisite status for trial by
military commission), but rather that they simply were enemy combatants. It
seems safe to say that we have not seen the last of any of the three branches as we at-
tempt to astrik[e] the balance between the will to win and the cost in liberty on the
way to victory."
IV. Lingering Confusion — Afghanistan
Just because the US government has a clear set of rules for detention in Afghanistan
does not mean that we are working seamlessly with allies that have different rules.
Professor Roberts flags the "precious little uniformity" and "ongoing policy confu-
sion" in Afghanistan. This is particularly true on detainee issues: some States are
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Starting from Here
reluctant to detain combatants at all, other States hand detainees over quickly to
the government of Afghanistan and yet other States choose not to transfer all of
their detainees to the Afghans. Why is this the case, and can we move toward
greater harmony?
A. Different Views of the Conflict
One reason that contributing States approach detainee treatment differently in Af-
ghanistan is that they take different views of the legal nature of the situation there.
There are four possible positions: that it is an international armed conflict; that it is
a non-international armed conflict; that it is not an armed conflict at all, and thus
that ISAF is engaged in security or peacekeeping operations; and that, depending
on the level of hostilities, it is at times an armed conflict and at times a security
operation.
As I mentioned earlier, the argument that it is an international armed conflict
flows from the idea that the conflict is very similar to the conflict that began in
November 2001 in Operation Enduring Freedom and that the initial conflict has
continued without interruption between the same parties. Under this theory, the
right to self-defense continues, the consent of the government of Afghanistan to
troop presence is important but not necessary, and individuals detained in the in-
ternational armed conflict may continue to be detained.42 It is not clear whether
the Hamdan decision, which deemed at least the al Qaeda part of the conflict
non-international, affects the US view of the status of the conflict in Afghanistan.
The argument that it is a non-international armed conflict flows from a belief
that, as of June 2002, when the Karzai government took power, the conflict in Af-
ghanistan evolved away from a conflict between two States (the classical conflict
identified in Common Article 2 of the Geneva Conventions) and became a conflict
between the new Afghan government and countries supporting it on the one hand,
and Taliban and al Qaeda forces on the other. Thus, the conflict resembles an inter-
nationalized non-international armed conflict of the type that Hans-Peter Gasser
described in 1983.43 The ICRC takes this view, and asserts that Common Article 3,
customary international law applicable in non-international armed conflicts and
Afghan human rights laws apply to the conflict.44 Canada presumably also takes
this view: although it is treating its detainees in Afghanistan consistent with the
Third Geneva Convention, it appears to be doing so as a matter of policy, not law.
However, the fact that it is relying on a core law of war treaty for detention guid-
ance suggests that it views the situation as an armed conflict.45
Third, the German government may not believe that it is an armed conflict at
all. German documents describing its role in Afghanistan refer only to stability
operations — the documents make no reference to armed conflict.46 This seems
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Ashley S. Peeks
surprising, given the level of violence, numbers of troops killed and widespread
use of military responses around the country to suppress the Taliban. Finally, at
least one State seems to take the view that the situation fluctuates between being
an armed conflict and falling below the threshold of conflict that triggers applica-
tion of the law of war.
What is the view of the Afghan government on this question? It is not clear that
the government has formally stated its view that this is or is not an armed conflict,
but its use of its military to fight the Taliban and detain individuals without charge,
as well as its consent to the presence of thousands of foreign troops who continue to
engage in combat operations, suggests that the Afghan government would conclude
that it is in an armed conflict. It has not, however, invoked a state of emergency un-
der its constitution. If it is a non-international armed conflict, Common Article 3,
customary international law applicable in Common Article 3 conflicts and Afghani-
stan's domestic human rights obligations would govern Afghanistan's treatment of
detainees held in the conflict. (This explains why the ISAF/Interim Administration
document that Professor Roberts cites refers to the Interim Administration's obli-
gation to conform with "internationally recognized human rights.")
It should also be recognized that Security Council Resolution 1707 provides a
legal basis under Chapter VII of the UN Charter for ISAF operations, including de-
tention, regardless of the nature of the fighting in Afghanistan. In some respects,
this makes the need to resolve the precise nature of the conflict less important, as
ISAF's authorities under the resolution do not depend on the nature of the conflict
(or even on the continued existence of a conflict). It also suggests that potentially
differing views of the conflict by ISAF members need not prevent effective deten-
tion operations on the ground. One could imagine some kind of future arrange-
ment whereby ISAF States were to agree that they would, at a minimum, apply
Common Article 3 to detainees; and that States could at their discretion apply
higher standards of treatment as a matter of policy; and if the Afghan government
agreed that it would apply Common Article 3 and applicable human rights provi-
sions in the International Covenant on Civil and Political Rights47 and the govern-
ment of Afghanistan's constitution and laws, then it may not be necessary formally
to reconcile the competing descriptions of what is happening on the ground in
Afghanistan.
B. Different Legal Obligations and Domestic Politics
Another reason that ISAF States have taken diverse approaches to detention is that
they have different legal obligations and face different political pressures. Most no-
tably, European member State contributors to ISAF may be concerned that, in
some circumstances, the European Convention on Human Rights48 extends to
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their activities outside their own territories, even during armed conflict. In Al-
Skeini and others v. Secretary of State for Defence, for instance, the United Kingdom
conceded that the ECHR applied to its detention of one individual who died in its
custody in Iraq.49 The UK Court of Appeal upheld a High Court finding that the
United Kingdom's Human Rights Act50 and the ECHR applied to that individual's
case because he was within the authority and control of UK forces in Iraq.51 The
House of Lords has just upheld that decision, with the apparent result that any per-
son held by UK forces abroad (and therefore in the United Kingdom's "effective
control") would be covered by the Human Rights Act and the ECHR.52 Similarly,
the European Court of Human Rights, in the Saramati case, just considered
whether troops from France, Germany and Norway, acting as officers of the NATO
Peacekeeping Force in Kosovo (KFOR) and UN Mission in Kosovo (UNMIK), vio-
lated Articles 1, 5, 6 and 13 of the ECHR in detaining a particular individual.53 And
in the Behrami case, the European Court of Human Rights just considered whether
France violated an individual's right to life when the individual died from unex-
ploded ordnance in the area of Kosovo in which France was participating in the
KFOR mission.54 The European Court of Human Rights concluded that these cases
were inadmissible because each respondent State's acts were "attributable" to the
United Nations, pursuant to Chapter VII authority that authorized KFOR and
UNMIK, and that the European Court of Human Rights was not in a position to
scrutinize these acts. The Court, therefore, was not forced to address how it would
have decided the questions if the States had been acting in their sovereign capacities.
Even though France, Germany and Norway won their cases, one imagines that
the possibility of such cases, and the lingering ambiguity about whether the Court
would have reached a different conclusion if the States were not acting under UN
auspices, must create different, and potentially very cautious, political and legal ap-
proaches to conflict and peacekeeping for ECHR States parties.
In addition to the ECHR, most NATO member States are parties to Additional
Protocols I and II to the Geneva Conventions,55 whereas the United States is not.
In the Afghan conflict, it is not clear whether this fact would have (or has had)
any significant impact on the ground. Further, most NATO member States be-
lieve that their legal obligations flowing from treaties such as the International
Covenant on Civil and Political Rights56 and the Convention Against Torture57
apply to their activities extraterritorially. This may account for the fact that the
bilateral agreements between NATO States and the Afghan Ministry of Defense
regarding individuals detained by ISAF contain provisions that appear to reflect
the non-refoulement obligations contained in Article 3 of the CAT. The United
States historically has not taken the position that its CAT obligations apply
extraterritorially, although as a matter of policy the United States will not transfer
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Ashley S. Peeks
an individual outside of its territory to a country where it is more likely than not
that he will be tortured.
Human Rights Watch has described these bilateral arrangements with the gov-
ernment of Afghanistan as follows:
[T]hey share many common features, such as an agreement that NATO forces will
release detainees or transfer them to Afghan custody within 96 hours, and that NATO
and Afghan authorities will treat detainees in accordance with international law. The
agreements further stipulate that Afghan authorities will not try, release, or transfer
detainees to a third country without the explicit agreement of NATO forces
(presumably to avoid transfer of detainees to . . . jurisdictions where detainees may be
subject to mistreatment). Under the agreements seen by Human Rights Watch, NATO
forces, as well as the International Committee of the Red Cross, will have access to
detainees even after they have been transferred to Afghan custody.58
When Canada operated as part of OEF, the Canadian forces turned detainees
over to US forces in Afghanistan, but came under public pressure not to do so.59
Under the original 2005 Canada- Afghanistan Detainee Transfer Arrangement, the
Afghanistan Independent Human Rights Commission had guaranteed that it
would report any abuses to the Canadian government. As a result of public con-
cern about the mistreatment in Afghan custody of detainees turned over by Cana-
dian forces, the Canadian government recently amended the 2005 Arrangement
to bring it into line with pre-existing Denmark-Afghanistan, United Kingdom-
Afghanistan and Netherlands-Afghanistan arrangements.60 The new Arrangement
allows Canadians to enter Afghan detention facilities at "any time."61
The United States in its OEF capacity has been cautious about turning over de-
tainees to the government of Afghanistan, due in part to our desire to confirm with
greater clarity the legal basis on which the government of Afghanistan would hold
them. Contrast the Canadian position: General Gauthier, the lieutenant general
who commands the Canadian Expeditionary Forces Command and thus oversees
all Canadian forces deployed abroad, was quoted as saying, "Our default setting is
transfer. We haven't held anybody for more than a few hours and we would prefer
not to."62 As a result of certain allies' concerns about turning detainees over to the
United States or to the Afghans, some allies are choosing not to detain at all, which
renders the mission less effective.63
Consider the following by David Bosco:
About 7,000 troops from Canada, Britain and the Netherlands are fending off a Taliban
resurgence. The demanding mission . . . has also confronted alliance members with the
uncomfortable reality that fighting often means taking prisoners. America, of course,
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has been taking prisoners in Afghanistan for some time. And that's part of the problem.
The European and Canadian publics have been disgusted by reports of prisoner abuse,
and they want nothing to do with what they see as American excess .... So NATO
countries have essentially opted out of the detainee business. Before committing their
troops to combat areas, the Canadian, Dutch and British governments signed
agreements with the Afghan government stating that any captured fighters would be
handed over to Afghan authorities rather than to American forces. In practice, these
agreements mean that NATO troops have no system in place for regularly
interrogating Taliban fighters for intelligence purposes. Whenever possible, they let the
Afghan troops they operate with take custody. When that's not possible, they house
their prisoners briefly in makeshift facilities while they arrange a transfer to the
Afghans. NATO guidelines call for the handover of prisoners within 96 hours, far too
brief a time for soldiers to even know whom they're holding. And once prisoners are in
Afghan hands, international forces easily lose track of them. It's not good policy. Not
only is NATO forfeiting the intelligence benefits that can come with real-time
interrogation, it's sending detainees into an Afghan prison system poorly equipped to
handle them and rife with abuse.64
A Human Rights Watch report confirms the reluctance to detain that Bosco de-
scribes. That report, from November 2006, states,
Dutch forces operating in Oruzgan announced their first five detainees two weeks ago,
while British and Canadian forces operating in Helmand and Kandahar, respectively,
have publicly acknowledged fewer than 100 detainees. Given the ferocity of the fighting
in these areas, the absence of more detainees raises two alarming alternatives: either
that NATO forces are not taking detainees, or, more likely, that NATO forces are
circumventing their bilateral agreements by immediately turning over detainees to
Afghan authorities and thus abrogating their responsibility to monitor the detainees'
treatment.65
Even the political approaches to the fighting in Afghanistan are different. The
New York Times described the Dutch and US approaches as follows:
[Hjere in Uruzgan Province, where the Taliban operate openly, a Dutch-led task force
has mostly shunned combat. Its counterinsurgency tactics emphasize efforts to
improve Afghan living conditions and self-governance, rather than hunting the
Taliban's fighters. Bloodshed is out. Reconstruction, mentoring and diplomacy are in.
American military officials have expressed unease about the Dutch method, warning
that if the Taliban are not kept under military pressure in Uruzgan, they will use the
province as a haven and project their insurgency into neighboring provinces.66
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Ashley 5. Peeks
C. Toward Greater Harmonization
Presumably greater harmony in our approach to the situation in Afghanistan
would be useful, as it would permit us more easily to transfer detainees among the
various contingents, increase the intelligence we can gather from detainees, ap-
proach the Afghan government with a united front, and increase interoperability.
Can we achieve greater harmonization? Professor Roberts suggests that the gov-
ernment of Afghanistan establish a country- wide detention regime, although it is
not clear if he is suggesting that the regime would or should apply to individuals
picked up and held by ISAF forces as well. He also suggests that NATO develop a
binding set of rules on all aspects of treatment of security detainees not entitled to
prisoner-of-war protections. This seems sensible, although NATO already tried
once to achieve such a framework for Afghanistan and was able only to come to
agreement on broad parameters.67 Other ideas might include a new UN Security
Council resolution containing language parallel to Resolution 1546, and a more
detailed framework modeled on CPA Memorandum No. 3 (such that standards of
any internment facility shall be in accordance with the Fourth Geneva Convention,
Part III, Section IV). Finally, ISAF States could agree as a policy matter to treat all
detainees in their custody as prisoners of war. One might also explore practical
changes as well, such as a "left-seat, right-seat" approach to Afghan detention facil-
ities, whereby the government of Afghanistan runs the detention facility with assis-
tance and oversight by NATO forces from different countries. Any such solutions
would require certain legal and political concessions from both the US government
and other NATO contributors.
V. Conclusion
I would like to circle back to Professor Roberts's ongoing discomfort with the US
efforts dealing with the "war on terror" since September 11. Professor Roberts, like
many other critics of US policy over the last six years, is concerned about the
phrase "war on terror." But the phrase "global war on terror" is a political state-
ment, not a legal assertion.68 The United States uses this term to mean that all na-
tions must strongly oppose terrorism in all of its forms, around the world. We do
not think we are in an armed conflict with all terrorists everywhere. We do, how-
ever, believe that we are in a legal state of armed conflict with al Qaeda, which in-
cludes an armed conflict in Afghanistan. That said, the questions raised by this
armed conflict are difficult, and the laws in place on September 1 1 — internationally
and domestically — were not crafted to deal with the factual scenario we suddenly
faced. In working through these difficult problems, the balance of powers in the
US system has worked — not failed — for many of the critical elements of the three
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conflicts discussed. I would challenge this audience and our friends and critics to
look objectively at where the law now stands, and determine on that basis whether
a detention framework now exists that strikes an appropriate and durable balance
between humanitarian concerns and military requirements in this and future
non-traditional conflicts. I would also suggest that detention in Afghanistan pres-
ents hard questions not just for the United States but for all States contributing to
ISAF, and that we should continue to put our heads together on these difficult and
pressing questions.
Notes
1. Adam Roberts, Torture, Detainees, and Incompetence in the "War on Terror," 49 SUR-
VIVAL, Spring 2007, at 199, available at http://ccw.politics.ox.ac.uk/publications/roberts
_survival49- l_reviewarticle l_torture.pdf.
2. Available at http://www.opiniojuris.org/posts/chain_1169503291.shtml.
3. Id.
4. S.C. Res. 1707, U.N. Doc. S/RES/1707 (Sept. 12, 2006), available at http://daccessdds.un
.org/doc/UNDOC/GEN/N06/5 1 7/70/PDF/N065 1 770.pdf?OpenElement.
5. Adam Roberts, Counterterrorism and the Laws of War: A Critique of the U.S. Approach,
Address at the Brookings Institution (Mar. 11, 2002), available at http://www.brookings.edu/
events/2002/031 1 terrorism. aspx.
6. US Department of Defense, Directive 2311.01E, DoD Law of War Program (May 9,
2006), available at http://www.fas.org/irp/doddir/dod/d2311_01e.pdf.
7. See Declaration of Colonel James W. Gray, submitted in the case of Fadi Al Maqaleh v.
Gates, US District Court for the District of Columbia, Civil Action No. 06-CV-01669 (JDB).
8. Detainee Treatment Act of 2005, Pub. L. No. 109-148, sec. 1003(a), 119 Stat. 2680, 2739
(codified as amended at 42 U.S.CA. sec. 2000dd (West 2001 & Supp. 2006)), available at http://
jurist.law.pitt.edu/gazette/2005/12/detainee-treatment-act-of-2005-white.php.
9. Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or
Punishment, Feb. 4, 1985, G.A. Res. 46, U.N. GAOR 39th Sess., Supp. No. 51 at 197, U.N. Doc. A/
RES/39/708 (1984), reprinted in 23 INTERNATIONAL LEGAL MATERIALS 1027 (1984), available at
http://www.hrweb.org/legal/cat.html.
10. US Department of Defense, Directive 23 10.0 IE, The Department of Defense Detainee
Program (Sept. 5, 2006), available at http://www.fas.org/irp/doddir/dod/d2310_01e.pdf.
1 1 . Headquarters, Department of the Army, FM 2-22.3, Human Intelligence Collector Op-
erations (Sept. 2006), available at http://www.fcnl.org/pdfs/civ_liberties/Field_Manual_Sept06
.pdf.
12. S.C. Res. 1546, U.N. Doc. S/RES/1546 (June 8, 2004), available at http://daccessdds
.un.org/doc/UNDOC/GEN/N04/381/16/PDF/N04381 16.pdf?OpenElement.
13. Id.
14. Id.
15. S.C. Res. 1723, U.N. Doc. S/RES/ 1723 (Nov. 28, 2006) and annexed letter dated Nov. 17,
2006 from the US Secretary of State to the President of the Security Council, available at http://
dacccssdds.un.org/doc/UNDOC/GEN/N06/632/35/PDF/N0663235.pdftOpenElement.
178
Ashley S. Peeks
16. Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949,
75 U.N.T.S. 287, reprinted in DOCUMENTS ON THE LAWS OF WAR 301 (Adam Roberts & Richard
Guelffeds.,3ded. 2000).
17. L. Paul Bremer, Coalition Provisional Authority Memorandum No. 3 (Revised) (June 27,
2004), available at http://www.cpa-iraq.org/regulations/20040627_CPAMEMO_3_Criminal
_Procedures Rev_.pdf [hereinafter CPA Memorandum No. 3].
18. The United Kingdom similarly uses a CRRB comprised of UK and Iraqi members. See
http://www.publications.parliament.uk/pa/cm200607/cmselect/cmfaff/209/7011108.htm.
CRRBs review detainee files approximately every six months.
19. CPA Memorandum No. 3, supra note 17, sec. 6(4).
20. Id., sec. 6(5) and (6).
21. Id., sec. 6(8).
22. See Roberts, supra note 1, at 201.
23. Mark Danner, Torture and Truth: America, Abu Ghraib, and the War on Ter-
ror 44 (2004).
24. Campbell Brown, New Front in Iraq Detainee Abuse Scandal?, MSN.COM (May 20, 2004),
available at http://www.msnbc.msn.com/id/5024068/.
25. Karen J. Greenberg 8c Joshua L. Dratel, A Legal Narrative: The Torture Memos,
COUNTERPUNCH, Feb. 1, 2005, available at http://www.counterpunch.org/dratel02012005
.html.
26. Supra note 8.
27. War Crimes Act of 1996, Pub. L. No. 104-192, 1 10 Stat. 2104 (codified as amended at 18
U.S.C.A. sec. 2441 (West 2000 8c Supp. 2007)).
28. 126 S.Ct. 2749 (2006). The Court did not even treat the issue as in doubt; the majority,
concurring and dissenting opinions in Hamdan all assumed the existence of an armed conflict
with al Qaeda, though the various justices did not all agree on the nature of the conflict (non-
international or international).
29. US Army Field Manual 2-22.3, Human Intelligence Collector Operations, (Sept. 2006),
available at http://www.army.mil/institution/armypublicaffairs/pdf/fm2-22-3.pdf.
30. Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600, available at http://
www.washingtonpost.com/wp-srv/politics/documents/cheney/military_commissions_act.pdf.
31. Parhat v. Gates, No. 06-1397 (D.C. Cir.); Bismullah v. Gates, No. 06-1197 (D.C. Cir.).
Transcript of oral argument (May 2007) available at http://www.scotusblog.com/movabletype/
archives/May%20 1 5%202007%20CA%20detainee%20hearing.pdf.
32. Roberts, supra note 5.
33. See Colm Campbell, "Wars on Terror" and Vicarious Hegemons: The UK, International
Law, and the Northern Ireland Conflict, 54 INTERNATIONAL & COMPARATIVE LAW QUARTERLY
321, 326 (2005). ("There were echoes of this approach in the early stages of the Northern Ireland
conflict. For the British Home Secretary in 1971, the Government was 'at war with the IRA', a
categorization also employed by the Northern Ireland Prime Minister ('we are, quite simply, at
war with the Terrorist . . . .'). This language was quickly dropped. For the most part, the UK was
careful to create a narrative of its behaviour in terms of a response to terrorist criminality, even if
from time-to-time, the rhetoric of 'war' was drawn upon to justify particularly harsh measures.")
34. Authorization to Use Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001), available
at http://news.findlaw.com/wp/docs/terrorism/sjres23.es.html.
35. See Military Commissions in Light of the Supreme Court Decision in Hamdan v. Rumsfeld:
Hearing Before the S. Comm. on Armed Services, 109th Cong. (July 19, 2006) (statement of Neal
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Starting from Here
Katyal), available at http://www.law.georgetown.edu/faculty/nkk/documents/Katyal.testimony
.SASC.v 18.pdf.
36. To receive testimony on legal issues regarding individuals detained by the Department of De-
fense as unlawful enemy combatants: Hearing Before the S. Comm. on Armed Services, 1 10th Cong.
(Apr. 26, 2007) (testimony of Neal Katyal), available at http://www.senate.gov/~clinton/news/
statements/details. cfm?id=2732 1 1 .
37. Hamdan v. Rumsfeld, 126 S.Ct. 2749, 2799 (2006) (Breyer, J., concurring).
38. Hamdi v. Rumsfeld, 542 U.S. 507, 545 (2004) (Souter, J., concurring in part, dissenting
in part and concurring in the judgment).
39. Al-Marri v. Wright, 487 F.3d 160 (4th Cir. 2007).
40. Id. at 166.
41. Id. at 195.
42. Some who believe that the international armed conflict in Afghanistan ended in June 2002
when President Karzai took power submit that the United States was obligated to release at that
time those individuals it detained in that conflict. Amnesty International has taken this position.
See Written Evidence submitted by Amnesty International UK to the House of Commons, Select
Committee on Foreign Affairs (Nov. 7, 2006), available at http://www.publications. parliament
.uk/pa/cm200607/cmselect/cmfaff/44/44we03.htm. Amnesty International does acknowledge
the ability to detain in non-international armed conflict. In a case in which an international
armed conflict has become a non-international armed conflict, albeit with the same basic parties
to the conflict, it seems very formalistic to insist that the United States release Taliban detainees
from an international armed conflict, only to turn around and pick up those same detainees in
the non-international armed conflict.
43. Hans-Peter Gasser, Internationalized Non-International Armed Conflicts: Case Studies of
Afghanistan, Kampuchea and Lebanon, 33 AMERICAN UNIVERSITY LAW REVIEW 145 (1983).
44. See International Committee of the Red Cross, International humanitarian law and ter-
rorism: questions and answers (May 5, 2004), http://www.icrc.org/Web/Eng/siteengO.nsf/html/
5YNLEV (asserting that the Afghanistan conflict became a non-international armed conflict in
June 2002).
45. See THE SENLIS COUNCIL, CANADA IN KANDAHAR: NO PEACE TO KEEP: A CASE STUDY
OF THE MILITARY COALITIONS IN SOUTHERN AFGHANISTAN 21-22 (2006), available at http://
www.senliscouncil.net/documents/Kandahar_Report_June_2006.
46. See, for example, http://www.auswaertiges-amt.de/diplo/en/Startseite.html (Germany's
Federal Foreign Office website) (making no reference to armed conflict); http://www.germany
.info/relaunch/politics/new/pol_bwehr_isaf_06_2006.html (same, and stating that fighting the
Taliban and al Qaeda is primarily the mission of OEF forces, not ISAF).
47. International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171,
available at http://wwwl.umn.edu/humanrts/instree/b3ccpr.htm.
48. European Convention for the Protection of Human Rights and Fundamental Freedoms,
Nov. 4, 1950, 213 U.N.T.S. 221, available at http://www.hri.org/docs/ECHR50.html.
49. The Queen (on the application of Al-Skeini and Others) v. Secretary of State for Defence
[2006] 3 W.L.R. 508, para. 6 [hereinafter Al-Skeini (CA)].
50. Human Rights Act, 1998, c. 42, available at http://www.opsi.gov.uk/acts/actsl998/
ukpga_19980042_en_l.
51. Al-Skeini (CA), supra note 49.
52. Al-Skeini and others v. Secretary of State for Defence [2007] UKHL 26, available at http://
www.publications.parliament.uk/pa/ld200607/ldjudgmt/jd070613/skeini-l.htm.
180
Ashley S. Peeks
53. Saramati v. France, Germany and Norway, App. No. 78166/01, ECHR — Grand Cham-
ber (May 31, 2007), available at http://cmiskp.echr.coe.int/tkpl97/view.asp?item=18cportal
=hbkm&action=html8chighlight=saramati&sessionid=6090347&:skin=hudoc-pr-en.
54. Behrami v. France, App. No. 71412/01, ECHR— Grand Chamber (May 31, 2007), avail-
able at id.
55. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of International Armed Conflicts (Protocol I), June 8, 1977, 1 125 U.N.T.S.
3; and Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of Non-International Armed Conflicts (Protocol II), June 8, 1977, 1125
U.N.T.S. 609, reprinted in DOCUMENTS ON THE LAWS OF WAR, supra note 16, at 422 and 483,
respectively.
56. Supra note 47.
57. Supra note 9.
58. Letter from Brad Adams, Executive Director, Asia Division, Human Rights Watch, to
NATO Secretary General (Nov. 28, 2006), available at http://hrw.org/english/docs/2006/ll/28/
afghanl4684_txt.htm [hereinafter Letter to NATO].
59. CBC News, The controversy over detainees, CBC.CA, Apr. 27, 2007, http://www.cbc.ca/
news/background/afghanistan/detainees.html.
60. Arrangement for the Transfer of Detainees between the Canadian Forces and the Ministry
of Defence of the Islamic Republic of Afghanistan, Can.-Afg., Dec. 18, 2005, available at http://
www.forces.gc.ca/site/operations/archer/Afghanistan_Detainee_Arrangement_e.pdf. For a de-
scription of the Dutch and UK agreements, see Michael Byers & William A. Schabas, Canadian
War Criminals? Experts want top officials investigated, THE TYEE, Apr. 27, 2007, http://
thetyee.ca/Views/2007/04/27/WarCrime/.
61. CBC News, World court asked to look into Afghan detainee controversy ; CBC.CA, Apr. 26,
2007, http://www.cbc.ca/canada/story/2007/04/26/afghan-detainees.html. The article cited in
endnote 60 states that the Dutch-Afghan agreement guaranteed Dutch military forces, embassy
officials and the ICRC access to detainees. That arrangement also required written notification of
a prisoner's transfer to a third party or any other significant changes.
62. Paul Koring, Troops Told Geneva Rules Dont Apply to Taliban, GLOBE AND MAIL (Can-
ada), May 31, 2006, at Al, available at http://listserv.acsu.buffalo.edu/cgi-bin/wa?A2=ind0605&L
=justwatch~l&O=D&P=89330.
63. David Bosco, A Duty NATO Is Dodging in Afghanistan, WASHINGTON POST (Nov. 5,
2006), at B07, available at http://www.carnegieendowment.org/publications/index.cfm?fa
=view&id= 1 8842&prog=zgp8cproj=zme.
64. Id.
65. Letter to NATO, supra note 58. Human Rights Watch seems to be speculating that the
relevant countries are turning over detainees to the government of Afghanistan on the battle-
field, rather than processing them through the countries' internal systems before turning them
over to the government of Afghanistan pursuant to the formal arrangements. See also Second
Memorandum from the Ministry of Defence, The attitude of the people towards the Interna-
tional military presence inside Afghanistan para. 7 (Feb. 14, 2006), Written Evidence submitted
to the House of Commons, Select Committee on Defence, available at http://www.publications
.parliament.uk/pa/cm200506/cmselect/cmdfence/558/558we04.htm [hereinafter Second Mem-
orandum] ("Since 2001 we have detained in Afghanistan on very few occasions, and all individu-
als were subsequently released. The UK has not transferred any detainee to the Afghan
authorities or into the custody of US forces, and there are currently no individuals being de-
tained under UK authority in Afghanistan. Current UK policy is not to detain individuals
181
Starting from Here
unless absolutely necessary; and indeed it has rarely been necessary to do so in ISAF's current
area of operation").
66. C.J. Chivers, Dutch Soldiers Stress Restraint in Afghanistan, NEW YORK TIMES, Apr. 6,
2007, at Al, available at http://www.nytimes.com/2007/04/06/world/asia/06afghan.htmR_r
= 1 &scp= 1 &sq=&st=nyt&oref=slogin.
67. Second Memorandum, supra note 65, paras. 4-6 ("ISAF policy, agreed by NATO, is that
individuals should be transferred to the Afghan authorities at the first opportunity and within 96
hours, or released NATO Rules of Engagement set out the circumstances in which individu-
als may be detained by ISAF troops, but do not cover their subsequent handling .... Work con-
tinues within NATO on clarification of detention issues, in discussion with the Afghan
government, as NATO prepares for expansion beyond the North and West of Afghanistan. Han-
dling of detainees after detention is a matter for individual states to negotiate with the Afghan
Government as appropriate.").
68. See John Bellinger, Legal Issues in the War on Terrorism, Address at the London School
of Economics (Oct. 31, 2006), available at http://www.state.gOv/s/l/rls/76039.htm.
182
IX
Distinction and Loss of Civilian Protection
in International Armed Conflicts
Yoram Dinstein*
A. The Principle of Distinction
There are several cardinal principles lying at the root of the law of interna-
tional armed conflict. Upon examination, none is more critical than the
"principle of distinction."1 Undeniably, this overarching precept constitutes an in-
tegral part of modern customary international law.2 It is also reflected in Article 48
of the 1977 Protocol I Additional to the Geneva Conventions of 1949, entitled "Ba-
sic rule," which provides that "the Parties to the conflict shall at all times distin-
guish between the civilian population and combatants and between civilian
objects and military objectives and accordingly shall direct their operations only
against military objectives."3
As is clear from the text, the pivotal bifurcation is between civilians and combat-
ants (and, as a corollary, between military objectives and civilian objects). It is
wrong to present the dichotomy, as the International Committee of the Red Cross
(ICRC) sometimes does,4 in the form of civilians versus members of the armed
forces.5 Apart from the fact that not every member of the armed forces is a combat-
ant (medical and religious personnel are excluded),6 civilians who directly partici-
pate in hostilities lose their civilian status for such time as they are acting in this
fashion although they are not members of any armed forces (see infra Section B).
* Professor Emeritus, Tel Aviv University, Israel.
Distinction and Loss of Civilian Protection in International Armed Conflicts
It is almost axiomatic that, as a rule, all enemy combatants can be lawfully at-
tacked directly — at all times — during an international armed conflict. This can be
done whether they are advancing, retreating or remaining stationary, and, as dis-
cussed later in this article, whether they are targeted in groups or individually.7
There are, however, a number of caveats: (i) the attack must be carried out outside
neutral territory, (ii) it is not allowed when a ceasefire is in effect, (iii) no prohib-
ited weapons may be used, (iv) no perfidious methods of warfare may be resorted
to, (v) combatants are not to be attacked once they become hors de combat (by choice
(surrendered personnel) or because they are wounded, sick or shipwrecked),8 and
(vi) the attack must not be expected to cause excessive injury to civilians.
The hallmark of civilian status in wartime is that, in contrast to combatants, ci-
vilians— as well as civilian objects — enjoy protection from attack by the enemy. In-
tentionally directing attacks against civilians (not taking direct part in hostilities)
or civilian objects is a war crime under Article 8(2)(b)(i)-(ii) of the 1998 Rome
Statute of the International Criminal Court.9
The term "attack" in this context means any act of violence,10 understood in the
widest possible sense (including a non-kinetic attack), as long as it entails loss of
life, physical or psychological injury, or damage to property. Attacks do not include
non-forcible acts, such as non-injurious psychological warfare. The line of division
between what is permissible and what is not is accentuated by computer network
attacks (CNA). These would qualify as attacks within the accepted definition only
if they engender — through reverberating effects — human casualties or damage to
property (it being understood that a completely disabled computer is also damaged
property).11
It is illegal to launch an attack the primary purpose of which is to spread terror
among the civilian population.12 The prohibition is applicable even if the attacker
has every reason to believe that such a terror campaign will shatter the morale of
the civilian population — so that the enemy's determination to pursue the armed
conflict will be eroded — and the war will be brought to a rapid conclusion (saving,
as a result, countless lives on both sides).13 Yet, an important rider is in order. What
counts here is not the actual effect of the attack but its purpose or intent: an attack
is not forbidden unless terrorizing civilians is its primary aim.14 Nothing precludes
mounting an otherwise lawful attack against combatants and military objectives,
even if the net outcome (due to resonating "shock and awe") is the collapse of civil-
ian morale and the laying down of arms by the enemy.
The principle of distinction excludes not only deliberate attacks against civil-
ians, but also indiscriminate attacks, i.e., instances in which the attacker does not
target any specific military objective (due either to indifference as to whether the
ensuing casualties will be civilians or combatants or, alternatively, to inability to
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Yoram Dinstein
control the effects of the attack).15 A leading example is the launching by Iraq of
Scud missiles against military objectives located in or near residential areas in Israel
in 1991, notwithstanding the built-in imprecision of the Scuds which made accu-
racy in acquiring military objectives virtually impossible (and, in the event, no mil-
itary objective was struck).
In regular inter- State warfare — where asymmetrical warfare is not part of the
military equation — the prohibition of indiscriminate attacks is perhaps of even
greater practical import than that of the ban of direct attacks against civilians. The
reason is that, generally speaking, the armed forces of a civilized country are rarely
likely nowadays to target civilians with premeditation. However, the prospect of
the incidence of indiscriminate attacks — predicated, as it is, on lack of concern
rather than on calculation — is much higher. A commonplace illustration would be
a high-altitude air raid, carried out notwithstanding conditions of zero visibility
and malfunctioning instruments for identifying preselected military objectives.
Certainly, military training must tenaciously address the issue of indiscriminate at-
tacks if they are to be eliminated.
The flip side of civilian objects (which are protected from attack) is military ob-
jectives (which are not). The authoritative definition of military objectives appears
in Article 52(2) of Additional Protocol I:
Attacks shall be limited strictly to military objectives. In so far as objects are concerned,
military objectives are limited to those objects which by their nature, location, purpose
or use make an effective contribution to military action and whose total or partial
destruction, capture or neutralization, in the circumstances ruling at the time, offers a
definite military advantage.16
This definition is very open ended, if only because every civilian object — not ex-
cluding even a hospital or a church — is susceptible to use by the enemy for military
purposes. Such use (or abuse) will turn even a hospital or a place of worship into a
military objective, exposing it to a lawful attack under certain conditions. The only
attenuating consideration is that, under Article 52(3) of Protocol I, in case of doubt
the presumption should be that such a place is actually used for the normal pur-
poses to which it is dedicated.17
It follows that the key to robust civilian protection lies, perhaps, less in the fun-
damental requirement of concentrating attacks on identifiable military objectives
and more in the complementary legal condition of observing proportionality in
the effects of the attack. This means, as prescribed in Article 51(5)(b) of Protocol I,
that — when an attack against a military objective is planned — incidental losses to
civilians or civilian objects (usually called "collateral damage") must not be
185
Distinction and Loss of Civilian Protection in International Armed Conflicts
expected to be "excessive in relation to the concrete and direct military advantage
anticipated."18 Intentionally launching an attack in the knowledge that it will cause
incidental loss of life or injury to civilians or damage to civilian objects which
would be clearly excessive in relation to the concrete and direct overall military ad-
vantage anticipated is a war crime under Article 8(2)(b)(iv) of the Rome Statute of
the International Criminal Court.19
The expectation of excessive incidental losses to civilians or damage to civilian
objects taints an attack as indiscriminate in character. Yet it must be borne in mind
that not every inconvenience to civilians ought to be considered relevant. In war-
time, there are inevitable scarcities of foodstuffs and services. Indeed, food, cloth-
ing, petrol and other essentials may actually be rationed; buses and trains may not
run on time; curfews and blackouts may impinge on the quality of life; etc. These
do not count in the calculus of proportionality. Moreover, the military advantage
anticipated from an attack must be viewed in a rather holistic fashion: when a
large-scale attack is in progress, it is not required to assess every discrete segment in
isolation from the overall picture.20
Undeniably, what is deemed excessive is often a matter of subjective appraisal,
which takes place in the mind of the beholder (always remembering that the ap-
praisal must be done in a reasonable fashion). The difficulty is that military advan-
tage and civilian casualties are like the metaphorical apples and oranges: a
comparison between them is an art, not a science. Civilian losses can be counted,
civilian damage can be surveyed and estimated, but how can you quantify a mili-
tary advantage on a measurable scale? Additionally, since the entire process is a
matter of pre-attack evaluation and expectation, it must be acknowledged that it is
embedded in probabilities. What is to be done if "the probability of gaining the
military advantage and of affecting the civilian population is not 100 percent but
lower and different"?21
All the circumstances must be factored in. Thus, the bombardment of a hospital
or a church used by the enemy may be given a green light if the actual number of
patients or worshippers on site is negligible, whereas, should the numbers be dis-
proportionate, the attack may have to be aborted. However, there is a difference
between the cases of, say, one mosque where the minaret is used by a single enemy
sniper and another serving as a command and control center of an armored divi-
sion. Taking out the sniper must not entail a substantial civilian price tag, but the
elimination of a key command and control center is a different matter. It has to be
borne in mind that "excessive" is not interchangeable with "extensive." Some
scholars take that position,22 but it is based on a misreading of the text.23 If the stra-
tegic and military value of a military objective is exceedingly high, significant col-
lateral civilian losses resulting from an attack may well be countenanced.
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Yoram Dinstein
Any planned attack — and any commensurate estimate of the number of civil-
ians present in or near military objectives — must be based on up-to-date intelli-
gence. The "fog of war" is such that mistakes are unavoidable in every sizable
military operation. When a legal analysis is made after the event, there is a built-in
temptation to scrutinize the situation with the benefit of hindsight. But this temp-
tation must be strongly resisted. The proper question is not whether collateral
damage to civilians proved to be excessive in actuality: it is whether collateral dam-
age could or should have been reasonably expected to be excessive at the time of
planning, ordering or carrying out the attack. A reasonable expectation has to be
linked to the data collated and interpreted at the time of action. Evidently, a valid
evaluation of the state of affairs must be based on information that is current and
not obsolete. If crucial information (say, about the absence of civilians from the vi-
cinity of a military objective) is derived from a reconnaissance mission, the attack
should follow soon thereafter since a long interval may mean that the facts on the
ground have undergone a profound change.24
Pursuant to Article 57(2) (a) (ii) of Additional Protocol I, those who plan or decide
on an attack must take all feasible precautions (taking into account all circum-
stances prevailing at the time), if not to avoid altogether, at least to minimize inci-
dental losses to civilians or civilian objects.25 Yet the aspiration to minimize
collateral damage cannot trump all other military inputs. Minimize the costs to civil-
ians, yes, but not at all costs to the attacking force. There is no obligation incum-
bent on the attacker to sustain military losses only in order to minimize incidental
losses to enemy civilians or civilian objects. "Survival of the military personnel and
equipment is an appropriate consideration when assessing the military advantage
of an attack in the proportionality context."26
Minimizing incidental losses or injury to civilians can be accomplished through
the employment of precision-guided munitions (PGM) — where available — to tar-
get a military objective located in the midst of a densely populated residential area.
The use of PGM enables the strike to be surgical, with little collateral damage ex-
pected to the surrounding civilians or civilian objects. As pointed out by Michael
Schmitt, this is so not only because PGM are more accurate, but also because "the
explosive charge needed to achieve the desired result is typically smaller than in
their unguided counterparts."27
In order to achieve the same goal of sparing civilians and civilian objects from
the effects of attacks, Article 57(3) of Protocol I sets forth that, if a choice is possible
among several military objectives for obtaining a similar military advantage, the
one expected to cause the least incidental civilian losses and damage should be se-
lected.28 But, again, the unfortunate truth is that it is often impossible to determine
187
Distinction and Loss of Civilian Protection in International Armed Conflicts
with any degree of credibility whether the elimination of diverse military objectives
would afford a similar military advantage.
Other feasible precautions include — if circumstances permit — the issuance of
effective advance warnings to civilians of an impending attack (in conformity with
Article 57(2)(c) of Additional Protocol I29). All the same, circumstances do not al-
ways permit the issuance of such warnings. Otherwise, surprise attacks would have
had to be struck out of the military vocabulary.
"The law of armed conflict singles out for special protection certain specified
categories of civilians, either because they are regarded as especially vulnerable or
on account of the functions they perform."30 The first category is illustrated by
women and children,31 and the second by civilian medical and religious person-
nel.32 In the same vein, certain civilian objects — for instance, cultural property33 or
places of worship34 — also enjoy special protection. But the special protection must
be looked upon as merely the icing on the cake: it adds some flavor but it does not
really affect the core. Some additional elements — enhancing the range of the pro-
tection— are brought into play, for the benefit of the selected persons or objects,
yet the most vital safeguards are granted to all civilians and civilian objects without
fail. There is also a proviso: protection (even special protection) may be lost as a re-
sult of a failure to meet prescribed conditions, as stipulated by the law of interna-
tional armed conflict.
B. Direct Participation in Hostilities
Direct participation of a civilian in hostilities leads to loss of protection from attack
of the person concerned (within the temporal limits of the activity in question). As
promulgated in Article 51(3) of Protocol I, civilians enjoy a general protection
against dangers arising from military operations "unless and for such time as they
take a direct part in hostilities."35 Occasionally, the reference is to "active" (instead
of "direct") participation in hostilities,36 and at times either adjective is deleted.37
The bottom line is essentially the same:38 a person who takes part in hostilities loses
his protection. There is no doubt that, as held by the Supreme Court of Israel (per
President Barak) in the Targeted Killings case of 2006, this norm reflects customary
international law.39
There is a consensus that a civilian can be targeted at such time as he is taking a
direct part in hostilities.40 There is nevertheless a serious debate about taxonomy.
For my part, I believe that by directly participating in hostilities a person turns into
a combatant — indeed, more often than not, an unlawful combatant.41 On the
other hand, the ICRC, while conceding that "[l]oss of protection against attack is
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Yoram Dinstein
clear and uncontested,"42 adheres to the view that the status of that person remains
one of a civilian.
The difference of opinion about status has a practical consequence only when
the person concerned is captured. I am inclined to think that, as an unlawful com-
batant, the person loses the general protection of the Geneva Conventions (except
in occupied territories) and only enjoys some minimal safeguards, in conformity
with human rights standards. The ICRC maintains that the general protection of
civilian detainees under Geneva Convention (IV) applies also to civilians directly
participating in hostilities. My own position is predicated on Article 5 of that Con-
vention, whereby — other than in occupied territories — those engaged in hostilities
do not benefit from the privileges of the Convention, although they still have to be
treated with humanity and are entitled to a fair trial.43
The words "for such time" appearing in Article 51(3) of Protocol I raise seri-
ous questions about their scope.44 The government of Israel has traditionally con-
tended that these words do not reflect customary international law, but the
Supreme Court has utterly rejected that submission.45 The Court made it clear
that a civilian who only sporadically takes a direct part in hostilities does not lose
protection from attack on a permanent basis: once he disconnects himself from
these activities, he regains his civilian protection from attack46 (although he may
still be detained and prosecuted for any crime that he may have committed dur-
ing his direct participation in hostilities47).
The desire to confine the exposure of the civilian who directly participates in
hostilities to a finite space of time makes a lot of sense. It is worthwhile to remem-
ber that many armed forces in the world incorporate large components of reserv-
ists who are called up for a prescribed period and are then released from service. A
reservist is basically a civilian who wears the uniform of a combatant for a while
and is then cloaked again with the mantle of a civilian. Surely, for such time as he is
a combatant, a reservist can be attacked. Yet, before and after, qua civilian, he is ex-
empt from attack. The same consideration should apply grosso modo to other types
of civilians turned combatants and vice versa.
There are two salient riders added to the general proposition by the judgment in
the Targeted Killings case. The first is that the cycle of direct participation in hostili-
ties commences at an early stage of preparation and deployment, continuing
throughout the engagement itself, to cover also the disengagement and return
phase.48 Although there are those who maintain that the expression "for such time"
should be construed strictly as encompassing only the engagement itself, this claim
is generally rejected.49 1 (and others) take the position that, in demarcating the rele-
vant time span in the course of which the person concerned is actually taking part
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Distinction and Loss of Civilian Protection in International Armed Conflicts
in hostilities, it is permissible to go as far as reasonably possible both "upstream"
and "downstream" from the actual engagement.
The second rider is that while a person directly participating in hostilities more
than once may still revert to a civilian status during an interval, this cannot be
brought off when the hostile activities take place on a steadily recurrent basis with
brief pauses (the so-called "revolving door" phenomenon).50 Those attempting to
be "farmers by day and fighters by night" lose protection from attack even in the
intermediate periods punctuating military operations. The same rationale applies
if an individual becomes a member of an organized armed group (which collec-
tively takes a direct part in the hostilities): he would lose civilian protection for as
long as that membership lasts. In the locution of the Court, an organized armed
group becomes the "home" of the terrorist for whom a respite — interposing be-
tween acts of hostilities — merely means preparation for the next round.51 In prac-
tical terms, the individual in question may be targeted (see infra Section C), even
when not personally linked to any specific hostile act — simply due to his member-
ship in such a group — as long as that membership continues.
There is no doubt that the construct of direct participation in hostilities is not
open ended, and it "is far narrower than that of making a contribution to the war
effort."52 Still, a whole range of activities can be identified as concrete examples of
direct participation in hostilities. As the Supreme Court of Israel expounded, these
include not only using firearms or gathering intelligence, but also acting as a guide
to combatants, and, most pointedly, masterminding such activities through re-
cruitment or planning (in contradistinction to, e.g., merely donating money con-
tributions or selling supplies to combatants: the latter activities do not come within
the ambit of direct participation in hostilities).53
Under Article 50( 1 ) of Protocol I, " [i] n case of doubt whether a person is a civil-
ian, that person shall be considered to be a civilian."54 The provision is particularly
germane to the issue of direct participation in hostilities. It is imperative to ensure
that military units tasked with the mission of winnowing out civilians who engage
in hostilities will not treat all civilians as targetable, "shooting first and asking ques-
tions later."55 Additionally, the presence of civilians directly participating in hostil-
ities among the civilian population does not deprive the population at large of the
protection from attack that it is entitled to.56
The theme of direct participation in hostilities has been under study for a num-
ber of years by a group of experts under the aegis of the ICRC. While the study has
not yet been consummated, it has exposed a number of challenging questions and
has led to lengthy debates. One hotly contested point will be discussed infra in de-
tail. But there is a host of thorny problems. By way of illustration, there are disputes
regarding the different degrees of civilian contribution to electronic warfare,
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Yoram Dinstein
ranging from the mere maintenance of military computers to playing the role of
the "man in the loop" guiding — perhaps from a great distance — a military un-
manned aerial vehicle (UAV) or a CNA, with a view to causing death, destruction
or damage. There are also arguments concerning the roles of civilian contractors
who may offer purely logistical services (e.g., refueling military aircraft en route to
a far-away armed conflict) but may also be carrying out paramilitary missions
(such as guarding supply convoys) near the contact zone with the enemy.
C. Targeted Killings of Civilians Directly Participating in Hostilities
Hague Regulation 23(b) forbids the treacherous killing of enemy individuals,57
and Article 37(1) of Additional Protocol I prohibits killing an adversary by resort
to perfidy (defined as an act inviting the confidence of an adversary to lead him to
believe that he is entitled to — or is obliged to accord — protection under the law of
international armed conflict, with an intent to betray that confidence).58 How-
ever, when perfidy is not in play, even the ICRC Model Manual concedes that an
enemy individual combatant maybe targeted (including a head of state who is the
commander-in-chief) .59
There is a nexus between the question of whether a civilian is directly participat-
ing in hostilities and the issue of targeted killing. Logic dictates that, since a com-
batant may be individually targeted for attack, the same rule should apply to a
civilian who takes a direct part in hostilities (at such time as he is indulging in that
activity). But scholars like to debate the deceptively simple hypothetical scenario of
a civilian driving an ammunition truck to supply the armed forces. One view
(maintained by General A.P.V. Rogers) is that this will not result in the forfeiture of
civilian protection, although the presence of the civilian driver in the ammunition
truck — a palpable military objective — will put him at risk should the truck be at-
tacked on his watch.60 To fully perceive what is at issue, it is necessary to flesh out
the postulated sequence of events. Let us assume that the ammunition truck
reaches a gas station and the driver parks the truck, going into a mini-mart to pur-
chase some refreshments. An enemy commando unit, lying in wait, is mounting an
attack during that exact time frame. The question is: can the commandos attack
only the ammunition truck (at its parking spot, which may be heavily guarded) or
can they also kill or neutralize the driver when he is by himself inside the mini-
mart? General Rogers's position is clear cut: only the ammunition truck can be at-
tacked. As soon as the driver detaches himself from the truck, he sheds the risk and
benefits from civilian protection. I (among others) disagree. We believe that it all
depends on whether the script unfolds in geographic proximity to the front line or
far away from it. If the location is at a great distance from the front line (say, in the
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Distinction and Loss of Civilian Protection in International Armed Conflicts
continental United States while the front line is in Afghanistan), the driver remains
a civilian and runs a risk solely when he is in or near the ammunition truck. How-
ever, if the venue shifts and the ammunition truck is being driven in immediate lo-
gistical support of the military units deployed at the front line, the driver must be
considered a civilian directly participating in hostilities: he then loses protection
from attack even when he steps out of the truck.61 In the Targeted Killings case, the
Supreme Court of Israel has clearly endorsed the latter view.62
In occupied territories, there is a preliminary issue related to targeted killings of
civilians directly participating in hostilities, namely, whether the occupying power
is capable of taking effective law enforcement measures vis-a-vis such persons in
lieu of slaying them. As President Barak stressed, detention of a person directly par-
ticipating in hostilities against the occupying power is the preferred step, provided
that his arrest is feasible.63 If detention is not a viable option, it must be recognized
that a civilian taking a direct part in hostilities risks his life — like any combatant —
and is exposed to a lethal attack.64 Differently put, a strike targeting such a per-
son— and killing him — is permissible when non-lethal measures are either un-
available or ineffective.65
Although the Supreme Court of Israel pronounced that a targeted killing of a
terrorist in an occupied territory (when detention is not feasible) is lawful, the
Court was adamant that whenever innocent civilians are present in the vicinity of
the targeted individual and they are likely to be injured, the principle of propor-
tionality must be applied.66 The relevance of the principle of proportionality in the
setting of targeted killings has come to the fore in Israel, because of a highly publi-
cized use of a one-ton bomb against a well-known Palestinian terrorist hiding in a
residential area. There is a growing public sentiment that such a massive bomb
should not have been used, since it was almost bound to cause excessive collateral
damage to civilian bystanders.
D. Human Shields
This raises the cognate issue of the use of civilian "human shields" intended to lend
protection to combatants or military objectives. Article 28 of Geneva Convention
(IV) states that "[t]he presence of a protected person may not be used to render
certain points or areas immune from military operations."67 For its part, Article
51(7) of Protocol I reads, in part, that "[t]he presence or movements of the civilian
population or individual civilians shall not be used to render certain points or areas
immune from military operations, in particular in attempts to shield military ob-
jectives from attacks or to shield, favour or impede military operations."68 Irrefut-
ably, the prohibition of the use of civilians as human shields mirrors customary
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Yoram Dinstein
international law.69 Utilizing the presence of civilians or other protected persons to
render certain points, areas or military forces immune from military operations is
recognized as a war crime by Article 8(2)(b)(xxiii) of the Rome Statute.70
It is incontrovertible that when combatants (including civilians directly partici-
pating in hostilities) surround themselves by civilians, this is a breach of the law of
international armed conflict. All the same, it is necessary to distinguish between
voluntary and involuntary human shields. As the Supreme Court of Israel (per
President Barak) held in the Targeted Killings case, whereas involuntary human
shields are victims, voluntary human shields are to be deemed civilians who take a
direct part in hostilities.71 That being the case, voluntary human shields are
targetable and, of course, they "are excluded in the estimation of incidental injury
when assessing proportionality."72
What if, contrary to the law of international armed conflict, involuntary human
shields are actually compelled to screen a military objective? Article 51(8) of Proto-
col I sets forth that a violation of the prohibition of shielding military objectives
with civilians does not release a belligerent party from its legal obligations vis-a-vis
the civilians.73 What this means is that the principle of proportionality in attack re-
mains in effect. I do not deny that the principle of proportionality must still govern
the planning of an attack against a military objective screened by involuntary civil-
ian human shields. However, in my opinion, the test of excessive injury to civilians
must be relaxed in such exceptional circumstances. That is to say, to my mind, the
appraisal of whether civilian casualties are excessive in relation to the military ad-
vantage anticipated must make allowances for the fact that, by dint of the large (al-
beit involuntary) presence of civilians at the site of the military objective, the
number of civilian casualties can be expected to be higher than usual. To quote
Louise Doswald-Beck, "[t]he Israeli bombardment of Beirut in June and July of
1982 resulted in high civilian casualties, but not necessarily excessively so given the
fact that the military targets were placed amongst the civilian population."74 This
approach is confirmed by the 2004 UK Manual on the Law of Armed Conflict
Any violation by the enemy of this rule [the prohibition of human shields] would not
relieve the attacker of his responsibility to take precautions to protect the civilians
affected, but the enemy's unlawful activity may be taken into account in considering
whether the incidental loss or damage was proportionate to the military advantage
expected.75
Customary international law is certainly more rigorous than Protocol I on this
point. It has traditionally been grasped that, should civilian casualties ensue from
an illegal attempt to shield a military objective, their blood will be on the hands of
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Distinction and Loss of Civilian Protection in International Armed Conflicts
the belligerent party that abused them as human shields.76 The long and the short
of it is that a belligerent party is not vested by the law of international armed con-
flict with the power to block an otherwise lawful attack against military objectives
by deliberately placing civilians in harm's way.77
The prohibition of placing civilians as human shields around a military objec-
tive applies to all belligerent parties. Even though this has become a modus operandi
typical of terrorists, there are multiple ways in which regular armed forces may be
tempted to employ analogous tactics to facilitate military operations. The issue
arose before the Supreme Court of Israel (per President Barak), in 2006, in the
Early Warning case.78 The Court had to determine the legality of an "Early Warning
Procedure" (adopted by the Israel Defense Forces (IDF)) whereby, when a terrorist
has been cornered and besieged, a local resident would be encouraged to volunteer
(provided that no harm to the messenger was anticipated) in order to relay a warn-
ing and a call to surrender so as to avoid unnecessary bloodshed.79 The "Early
Warning Procedure" drew criticism from outside observers80 and it was nullified
by the Court. President Barak — relying on Article 28 of Geneva Convention (IV)
and on Article 51(7) of Protocol I (although Israel is not a contracting party to Pro-
tocol I) — stressed that the IDF was not allowed to use protected persons as human
shields and that, therefore, the assistance of a local resident could certainly not be
required coercively.81 But what about assistance offered voluntarily in circum-
stances where this is not expected to place the person concerned in jeopardy? Presi-
dent Barak ruled against the "Early Warning Procedure" on four grounds: (i)
protected persons must not be used as part of the military effort of the occupying
power, (ii) everything must be done to separate the civilian population from com-
bat operations, (iii) voluntary consent in these circumstances is often suspect, and
(iv) it is not possible to tell in advance whether the activity of the protected person
puts him in danger.82
Generally speaking, President Barak's reasoning is persuasive. Yet, he did not
explain why such assistance cannot be offered by a close relative — especially, a
mother or a father — of a terrorist besieged in a building that is about to be stormed
(with the likelihood of death in action of the terrorist), when the initiative is taken
by, for example, the parent who begs to be given a chance to persuade the besieged
son to surrender and save his life.83 In such exceptional circumstances, there is little
if any danger to the life of the parent, and humanitarian considerations actually tip
the balance in favor of allowing the requested intercession to take place.
In conclusion, this article should show that, although the protection of civilians
is a basic tenet of the international law of armed conflict, a civilian cannot take that
protection for granted. There are many ways in which civilian protection will not
render practical assistance, and a civilian would become a victim of war
194
Yoram Dinstein
inadvertently (due to collateral damage). But, above all, civilian protection can be
lost if the person who purports to benefit from it crosses a red line by directly par-
ticipating in hostilities. He may then be targeted, and this need not be done in an
anonymous fashion. Absent perfidy, the bullet that kills him may lawfully have his
name engraved on it.
Notes
1. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J, 226,
257 (July 8).
2. Jean-Marie Henckaerts & Louise Doswald-Beck, Customary International
HUMANITARIAN LAW (2005) (2 volumes: Volume I, Rules; Volume II, Practice (2 Parts)).
3. Protocol Additional (I) to the Geneva Conventions of 12 August 1949, and Relating to
the Protection of Victims of International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 3, re-
printed in DOCUMENTS ON THE LAWS OF WAR 422 (Adam Roberts & Richard Guelff eds., 3d ed.
2000) [hereinafter Protocol I].
4. HENCKAERTS & DOSWALD-BECK, supra note 2, Vol. I, at 17.
5. See Yoram Dinstein, The ICRC Customary International Humanitarian Law Study, 36
Israel Yearbook on Human Rights 1, 8-9 (2006).
6. Henckaerts & Doswald-Beck, supra note 2, Vol. I, at 1 1.
7. On the issues of retreating troops and individual targeting, see YORAM DINSTEIN, THE
Conduct of Hostilities under the Law of International Armed Conflict 94-95
(2004).
8. Hague Regulations, annexed to Hague Convention IV Respecting the Laws and Customs
of War on Land reg. 23(c), Oct. 18, 1907; Convention for the Amelioration of the Condition of
the Wounded and Sick in Armed Forces in the Field art. 12, Aug. 12, 1949, 6 U.S.T. 3114, 75
U.N.T.S. 31 [hereinafter Geneva Convention (I)]; Convention for the Amelioration of the Con-
dition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea art. 12, Aug. 12,
1949, 6 U.S.T. 3217, 75 U.N.T.S. 85 [hereinafter Geneva Convention (II)]; all reprinted in DOCU-
MENTS ON THE LAWS OF WAR, supra note 3, at 69, 77; 197, 201; and 222, 226, respectively.
9. Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S. 3, re-
printed in DOCUMENTS ON THE LAWS OF WAR, supra note 3, at 671, 676 [hereinafter Rome Stat-
ute].
10. See Protocol I, supra note 3, art. 49(1), at 447.
11. See Knut Dormann, The Applicability of the Additional Protocols to Computer Network
Attacks: An ICRC Viewpoint, in INTERNATIONAL EXPERT CONFERENCE ON COMPUTER NET-
WORK Attacks and the Applicability of International Humanitarian Law 139, 142-43
(Karin Bystrom ed., 2005).
12. See Protocol I, supra note 3, art. 51(2), at 448.
13. See Stefan Oeter, Methods and Means of Combat, in THE HANDBOOK OF HUMANITARIAN
Law in Armed CONFLICTS 105, 157 (Dieter Fleck ed., 1995).
14. See Richard R. Baxter, The Duties of Combatants and the Conduct of Hostilities (Law of
The Hague), in INTERNATIONAL DIMENSIONS OF HUMANITARIAN LAW 93, 1 18 (United Nations
Educational, Scientific and Cultural Organization ed., 1988).
15. On indiscriminate attacks, see Protocol I, supra note 3, art. 51(4)— (5), at 448-49.
16. Protocol I, supra note 3, at 450.
195
Distinction and Loss of Civilian Protection in International Armed Conflicts
17. Id,
18. Id. at 449.
19. Rome Statute, supra note 9, at 676.
20. See United Kingdom (UK) Ministry of Defence, Manual of the Law of Armed
CONFLICT para. 5.4.4 (2004) [hereinafter UK MANUAL].
2 1 . Marco Sassoli, Targeting: The Scope and Utility of the Concept of 'Military Objectives' for
the Protection of Civilians in Contemporary Armed Conflicts, in NEW WARS, NEW LAWS? AP-
PLYING the Laws of War in 2 1st Century Conflicts 181, 204 (David Wippman & Matthew
Evangelista eds., 2005) [hereinafter NEW WARS].
22. See Claude Pilloud & Jean Pictet, Article 51 - Protection of the Civilian Population, in
COMMENTARY ON THE ADDITIONAL PROTOCOLS OF 8 JUNE 1977 TO THE GENEVA CONVEN-
TIONS OF 12 AUGUST 1949, at 613, 626 (Yves Sandoz, Christophe Swinarski & Bruno Zimmer-
mann eds., 1987).
23. Christopher Greenwood, A Critique of the Additional Protocols to the Geneva Conventions
of 1949, in THE CHANGING FACE OF CONFLICT AND THE EFFICACY OF INTERNATIONAL HUMAN-
ITARIAN LAW 3, 1 1 n.29 (Helen Durham & Timothy L. H. McCormack eds., 1999).
24. See LESLIE C. GREEN, THE CONTEMPORARY LAW OF ARMED CONFLICT 160 (2d ed.
2000).
25. Protocol I, supra note 3, at 739.
26. Michael N. Schmitt, Precision Attack and International Humanitarian Law, 87 INTERNA-
TIONAL Review of the Red Cross 445, 462 (2005).
27. Michael N. Schmitt, Asymmetrical Warfare and International Humanitarian Law, in IN-
TERNATIONAL HUMANITARIAN LAW FACING NEW CHALLENGES: SYMPOSIUM IN HONOUR OF
KNUT IPSEN 1 1, 42 (Wolff Heintschel von Heinegg & Volker Epping eds., 2007).
28. Protocol I, supra note 3, at 453.
29. Id.
30. Frits Kalshoven, Reflections on the Law of War: Collected Essays 553 (2007).
31. See Protocol I, supra note 3, arts. 76(1)-77(1), at 466.
32. See id., art. 15, at 431.
33. See Hague Convention for the Protection of Cultural Property in the Event of Armed
Conflict, May 14, 1954, 249 U.N.T.S. 240, reprinted in DOCUMENTS ON THE LAWS OF WAR, supra
note 3, at 373.
34. See Protocol I, supra note 3, art. 53, at 450.
35. Id.
36. See, e.g., common Article 3(1) to Geneva Convention (I), supra note 8, at 198; Geneva
Convention (II), id. at 223; Convention Relative to the Treatment of Prisoners of War, Aug. 12,
1949, 6 U.S.T. 3316, 75 U.N.T.S. 135, reprinted in DOCUMENTS ON THE LAWS OF WAR, supra
note 3, at 244, 245 [hereinafter Geneva Convention (III); Convention Relative to the Protection
of Civilian Persons in Time of War, Aug. 12,1 949, 6 U.S.T. 3516,75 U.N.T.S. 287, reprinted in id.
at 301, 302 [hereinafter Geneva Convention (IV)].
37. See, e.g., Additional Protocol I, supra note 3, art. 8(a), at 426.
38. Cf Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment, para. 629 (Sept. 2, 1998).
39. HCJ [High Court of Justice] 769/02, Public Committee against Torture in Israel et al. v.
Government of Israel et al. para. 30. (A full translation is available in 46 INTERNATIONAL LEGAL
MATERIALS 375 (2007)).
40. Id., para. 31.
41. On unlawful combatants, see DlNSTEIN, supra note 7, at 27-44.
42. HENCKAERTS & DOSWALD-BECK, supra note 2, Vol. I, at 22.
196
Yoram Dinstein
43. Geneva Convention (IV), supra note 36, at 303.
44. See Kenneth Watkin, Humans in the Cross-Hairs: Targeting and Assassination in Contem-
porary Armed Conflict, in NEW WARS, supra note 21, at 137, 154-57.
45. HCJ 769/02, supra note 39, paras. 30, 38.
46. Id., paras. 39-40.
47. See Pilloud & Pictet, supra note 22, at 613, 619.
48. HCJ 769/02, supra note 39, para. 34.
49. See Kenneth Watkin, Controlling the Use of Force: A Role for Human Rights Norms in Con-
temporary Armed Conflict, 98 AMERICAN JOURNAL OF INTERNATIONAL LAW 1,17 (2004).
50. HCJ 769/02, supra note 39, para. 40.
51. Id., para. 39.
52. Frits Kalshoven & Liesbeth Zegveld, Constraints on the Waging of War 99-
100 (3d ed. 2001).
53. HCJ 769/02, supra note 39, para. 35.
54. Protocol I, supra note 3, at 448.
55. KALSHOVEN, supra note 30, at 73-74, 214.
56. Cfl Protocol I, supra note 3, art. 50(3), at 448.
57. Hague Regulations, supra note 8, at 77.
58. Protocol I, supra note 3, at 442.
59. MODEL MANUAL ON THE LAW OF ARMED CONFLICT FOR ARMED FORCES para. 1013.2-3
(A.P.V. Rogers & P. Malherbe eds., 1999) [hereinafter MODEL MANUAL].
60. See A.P.V. ROGERS, LAW ON THE BATTLEFIELD 1 1-12 (2d ed. 2004).
61. Interestingly enough, the MODEL MANUAL (supra note 59) — coauthored by General
Rogers — states that it is prohibited for civilians to act "as drivers delivering ammunition to firing
positions" (para. 601. 2.b).
62. HCJ 769/02, supra note 39, para. 35.
63. Id., para. 40.
64. Id., para. 46.
65. Id., para. 60.
66. Id., paras. 42-46.
67. Geneva Convention (IV), supra note 36, at 312.
68. Protocol I, supra note 3, at 449.
69. HENCKAERTS & DOSWALD-BECK, supra note 2, Vol. I, at 337.
70. Rome Statute, supra note 9, at 678.
71. HCJ 769/02, supra note 39, para. 36.
72. Michael N. Schmitt, War, Technology and the law of Armed Conflict, in THE LAW OF
WAR IN THE 2 1ST CENTURY: WEAPONRY AND THE USE OF FORCE 137, 177 (Anthony M. Helm
ed., 2006) (Vol. 82, US Naval War College International Law Studies).
73. Protocol I, supra note 3, at 449.
74. See Louise Doswald-Beck, The Civilian in the Crossfire, 24 JOURNAL OF PEACE RESEARCH
251,257(1987).
75. See UK MANUAL, supra note 20, para. 5.22.1 .
76. See W. Hays Parks, Air War and the Law of War, 32 AIR FORCE LAW REVIEW 1, 162-63
(1990).
77. See Andrew D. McClintock, The Law of War: Coalition Attacks on Iraqi Chemical and Bio-
logical Weapon Storage and Production Facilities, 7 EMORY INTERNATIONAL LAW REVIEW 633,
663-64(1993).
197
Distinction and Loss of Civilian Protection in International Armed Conflicts
78. HCJ 3799/02, Adalah - Legal Center for Arab Minority Rights in Israel et al. v. Com-
mander of the Central Region et al. (2007).
79. Id., paras. 5-7.
80. See Roland Otto, Neighbours as Human Shields? The Israel Defense Forces' "Early Warning
Procedure" and International Humanitarian law, 86 INTERNATIONAL REVIEW OF THE RED
CROSS 771-86 (2004).
8 1 . HCJ 3799/02, supra note 78, paras. 2 1-22.
82. Id., para. 24.
83. The possibility was raised by Deputy President Cheshin in paragraph 3 of his Separate
Opinion, id.
198
X
The Treatment of Detainees and the "Global
War on Terror": Selected Legal Issues
David Turns*
Introduction
This article will address selected legal issues relating to the treatment of
detainees1 in the context of the "Global War on Terror" as a "hook" on
which to hang some ideas of more general application and significance about the
international legal framework of the "war." Some general (i.e., jus ad bellum) inter-
national law aspects of the parameters of that framework have already been de-
bated in the literature,2 but the perspective adopted herein is of more specialist
focus inasmuch as it concentrates on the practical issue that should resonate in the
mind of all coalition military and associated personnel since the disclosure of ill-
treatment of detainees in the custody of US and British forces in Iraq at Abu Ghraib
and elsewhere:3 namely, once suspects in the "War on Terror" are captured, in ac-
cordance with what rules and legal standards are they to be treated? The broader,
fundamental, more theoretical (but no less important) issue lurking behind this
question of detailed substance is one of the utmost practical significance for per-
sonnel deployed to military counterterrorist operations in the field in the setting of
the "Global War on Terror": does the "War on Terror" constitute an armed
* Senior Lecturer in International Laws of Armed Conflict, Defence Academy of the United
Kingdom. The views expressed herein are those of the author in his personal capacity. They do
not necessarily represent the official views of the government or Ministiy of Defence of the
United Kingdom.
The Treatment of Detainees and the "Global War on Terror"
conflict in the sense of international law? And if so, what kind of armed conflict is
it: international, non-international or something else?
The premise contained herein, in a nutshell, is that military and political deci-
sionmakers in the coalition countries (principally, for the purposes of this article,
the United States and the United Kingdom) have mentally placed the proverbial
"chicken before the egg," in that they have completely failed to consider the very
real implications that these considerations have on armed forces from a legal point
of view. When soldiers are deployed on military operations, they need to know the
context of and legal framework governing their actions. When in action against
"terrorists" in Afghanistan, are coalition troops subject to (and expected to apply)
the 1949 Geneva Conventions,4 or Additional Protocols I or II thereto?5 If so, do
they apply all their provisions, or only some of them? The legal problem has been
particularly acute when armed forces have been given instructions which, while
vague on details, have tended to undermine respect for the law of armed conflict in
general.6 As one noted former member of the US armed forces has succinctly put it:
I can understand why some administration lawyers might have wanted ambiguity so
that every hypothetical option is theoretically open, even those the President has said
he does not want to exercise. But war doesn't occur in theory and our troops are not
served by ambiguity. They are crying out for clarity.7
The structure of this article will be, first, to consider some specific issues in cur-
rent legal proceedings in both the United Kingdom and the United States regard-
ing treatment of detainees in custody, before moving to the broader picture of the
general legal framework and classification of the "Global War on Terror." The lat-
ter discussion will involve a brief review of recent relevant decisions by the US and
Israeli Supreme Courts as well as a comparison with the situation confronted by
British security forces in Northern Ireland during the "Troubles"8 as a limited pre-
decessor for such a "war." At the end, we will return to the specific starting point
about legal standards for the treatment of detainees in military custody in light of
the foregoing discussion about the nature and classification of the conflict, and
draw some conclusions with suggestions for a possible way forward in what has be-
come a veritable legal and moral minefield.
Recent Legal Developments in the United Kingdom
The Al-Skeini Litigation
On June 1 3, 2007 the House of Lords (sitting in its judicial capacity as the highest
court in the United Kingdom) gave its judgment in a long-running saga
200
David Turns
concerning the treatment of detainees in Iraq, namely, the Al-Skeini case.9 Claims
for compensation are now being brought by the family of Baha Mousa against the
British Ministry of Defence as a direct result of this judgment by the House of
Lords,10 although it represents the final stage in the instant litigation.
In the Al-Skeini affair there have been two separate limbs: the civil proceedings
which culminated in the House of Lords decision, and military proceedings at
court-martial. The situation which gave rise to both sets of proceedings involved
the deaths of six Iraqi civilians at the hands of British troops in Basra between Au-
gust and November 2003 — in other words, during the period in which the United
Kingdom, along with the United States, was internationally recognized as being in
belligerent occupation of Iraq.11 The court-martial case will be mentioned further
below. The applicants in the civil litigation12 were close relatives of the six dead
Iraqi civilians. They sought an order of judicial review against the Secretary of State
for Defence by way of challenge to his refusal to order an independent public in-
quiry into the circumstances in which their relatives died and his rejection of liabil-
ity to pay compensation for their deaths. Five of the deceased were shot by British
troops while exchanging fire with Iraqi insurgents, during patrols or house
searches,13 but the most famous one is the sixth, whose circumstances were some-
what different. Baha Mousa was a young hotel receptionist who was taken into cus-
tody by British troops during a search of his hotel. Within thirty-six hours he was
dead, apparently having been beaten to death by British troops while in their cus-
tody at the military base of Darul Dhyafa in Basra.14
The legal issue in the case turned on the extraterritorial application of the Human
Rights Act 1998 (HRA),15 which is the domestic British incorporation of the
United Kingdom's international obligations under the European Convention of
Human Rights (ECHR).16 The claimants' arguments were essentially that Iraqi ci-
vilian detainees in British military custody in Iraq were entitled to the protection of
the HRA and therefore (indirectly) of the ECHR; the core question was thus one of
jurisdiction. Throughout the earlier proceedings in the Divisional Court and the
Court of Appeal,17 and also in the House of Lords, a clear distinction was drawn be-
tween the five Iraqis who were shot on the street or in house searches by British
troops and the one, Baha Mousa, who died in the actual custody of British troops.
This distinction was necessitated by the Convention's own insistence that "the
High Contracting Parties shall secure to everyone within their jurisdiction the rights
and freedoms defined in . . . this Convention."18 In a confusing series of cases
decided by the European Court of Human Rights (ECtHR), the Court introduced and
elaborated upon a notion of "effective control" over territory for the purposes of
ECHR jurisdiction outside the " espace juridique"19 of the Convention, and a funda-
mental tension developed between two alternative conceptions of the extraterritorial
201
The Treatment of Detainees and the "Global War on Terror"
application of the ECHR during military operations by armed forces of ECHR
State parties in States or other territorial entities that were not party to the Conven-
tion.20 This was clearly the case in Iraq, as that State is not and never has been a
party to the ECHR, whereas the United Kingdom is. The fundamental question,
therefore, was whether the actions of British troops, deployed on military opera-
tions outside the United Kingdom, could be subject to provisions of the Conven-
tion (by way of the HRA, which applies to all "public authorities" of the United
Kingdom and makes it unlawful for such authorities to act in a way that is incom-
patible with a right under the ECHR).21
Essentially what was conceded by the Ministry of Defence, and in the final stage
of the House of Lords hearings22 was no longer contentious, was that the ECHR
was in principle applicable to these cases. The first five deceased, however, because
they were shot on the street or during patrols or house searches but were not in the
physical custody of British troops, were held not to fall within the jurisdiction of
the UK courts for the purposes of the human rights legislation. In the House of
Lords, the government was appealing against the findings (in both the Divisional
Court and the Court of Appeal, albeit with slightly different reasoning) that it was
liable in respect to Baha Mousa's death and that it could or should be ordered to
hold the requested independent public inquiry into the circumstances thereof.
Throughout the proceedings in Al-Skeini, at all three court levels, it was com-
mon ground that there were two possible legal reasons as to why the Iraqi claimants
should be brought within the jurisdiction of British human rights laws, even
though they were not citizens of the United Kingdom and the acts in question oc-
curred outside the United Kingdom while British troops were engaged in military
operations. These reasons were that, under the ECtHR decision in Bankovic,25 ex-
traterritorial jurisdiction of the ECHR could be based on either
(1) the effective control of a State over a territory and its inhabitants, either
as a result of military occupation (whether lawful or unlawful in general
international law), or with the consent, acquiescence or invitation of the
government of that territory, such that the State in effective control
actually exercises all or some of the public powers normally to be
exercised by the government of that territory. This approach to
extraterritorial jurisdiction is referred to for convenience as the "effective
control of an area" (ECA) argument and was based on the ECtHR
jurisprudence in the line of cases following Loizidou;24 or
(2) the exercise of authority or control over a State's individuals by the
activities of another State's official agents in its embassies, consulates,
202
David Turns
military bases or prisons, or on board aircraft or vessels registered in or
flying the flag of that State, wherein agents of the State are exercising the
authority of the State extraterritorially in a foreign country. This
approach to extraterritorial jurisdiction is referred to for convenience as
the "State agent authority" (SAA) argument, and was based on an
alternative jurisprudence of the ECtHR as expressed in Drozd and
Janousek v. France and Spain.25
The Divisional Court had limited the applicability of the ECA argument to terri-
tory within the espace juridique of the Convention and applied a narrow construc-
tion of the SAA argument, holding that it applied only in relation to "embassies,
consulates, vessels and aircraft and ... a prison."26 Within those restrictive parame-
ters, the case of Baha Mousa alone was considered justiciable. The SAA argument
was also the preferred view of the Court of Appeal, although it additionally applied
a broader interpretation of the ECA argument than the Divisional Court, in the
sense that the majority opined that the ECA theory could apply anywhere in the
world, even outside the espace juridique of the Convention, so long as the territory
was under effective control. The appeals court was also more generous in its view of
the SAA argument. It relied heavily on the decision in Issa and Others v. Turkey,27 a
case in which the ECtHR gave "an unequivocal statement of SAA responsibility in a
military context"28 (Issa concerned the deaths of a number of Iraqi shepherds, al-
legedly at the hands of Turkish soldiers operating against Kurdish guerrillas in
northern Iraq). The Court of Appeal effectively held, largely on public policy
grounds, that "Article 1 [of the Convention] could not be interpreted so as to allow
a State party to perpetrate violations of the ECHR on the territory of another State
which it could not perpetrate on its own territory"29 and that the SAA theory ap-
plied whenever the individual in question was under the control and authority of
the relevant State agents anywhere in the world.
However, in the House of Lords judgment in Al-Skeini, a majority of the Law
Lords was uncomfortable with the extremely broad approach of the Court of Ap-
peal, and chose to retrench the position considerably. In the leading judgment,
Lord Brown dismissed the expansive extraterritorial application of the ECHR re-
gime proposed by the Court of Appeal in reliance on Issa as
altogether too much. It would make a nonsense of much that was said in Bankovic [as
to the Convention being an essentially regional instrument that was not designed to
operate throughout the world] It would, indeed, make redundant the principle of
effective control of an area: what need for that if jurisdiction arises in any event under a
general principle of "authority and control" irrespective of whether the area is (a)
effectively controlled or (b) within the Council of Europe?30
203
The Treatment of Detainees and the "Global War on Terror"
In connection with military forces and the law of armed conflict, Lord Brown
noted that the requirements of effective occupation required that the occupying
power respect the laws in force, rather than introducing new laws and enforcement
mechanisms; indeed, in most parts of the world outside Europe the probability
would be that ECHR rights would be incompatible with local law in any event.31
The cases of the first five claimants were therefore conclusively dismissed as falling
outside the United Kingdom's jurisdiction for human rights purposes, while in re-
spect to the sixth claimant, Lord Brown agreed that Baha Mousa's case did indeed
fall within the scope of the United Kingdom's obligations under the ECHR, but
"only on the narrow basis found established by the Divisional Court, essentially by
analogy with the extra-territorial exception made for embassies."32
Although it is perhaps still too early to make a full evaluation of the impact of the
final decision in Al-Skeini, and a claim against the Ministry of Defence pursuant to
the judgment in the litigation has only recently been made public,33 it is surely a de-
cision of enormous significance because it means that British forces, when de-
ployed outside the United Kingdom on certain kinds of military operations,
effectively will be carrying the obligations of the ECHR and the HRA with them. In
other words, for the United Kingdom (and all other States that are party to the
ECHR) questions of human rights will become increasingly important in situa-
tions where British troops are either in belligerent occupation of foreign territory
or stationed in any foreign territory in a situation other than full-scale interna-
tional armed conflict. This is a trend that has been gathering strength for some
years; as the International Court of Justice has put it:
[T]he protection offered by human rights conventions does not cease in time of armed
conflict .... As regards the relationship between international human rights law and
international humanitarian law, there are . . . three possible situations: some rights may
be exclusively matters of international humanitarian law; others may be exclusively
matters of human rights law; yet others may be matters of both these branches of
international law.34
It is a fact that a major part of contemporary culture, especially in the West, is
the demand for redress after injury. In the context of armed conflict, although
there is a specialized mechanism for calling wrongdoers to account by criminal
prosecution on charges of war crimes or similar, that is a lengthy and generally un-
satisfying process from the victims' perspective. All too often soldiers accused of
criminal conduct are either acquitted (which may of course be for a variety of rea-
sons, some more readily understandable to the world outside the courtroom than
others) or not even brought to trial. This is an allegation that might be made in the
current context of securing accountability for misconduct by British troops in
204
David Turns
Iraq,35 but it is nothing new: there were notoriously few prosecutions of German
military officers and soldiers in the Reichsgericht at Leipzig for offenses allegedly
committed in World War I, and most of those that took place resulted either in ac-
quittals or in derisorily lenient prison sentences.36 The growth in the importance of
human rights law in relation to situations of occupation or other military deploy-
ment is inevitable, given that civil litigation for compensation is easier for claim-
ants to secure than criminal trials. In the United Kingdom, at least, we will
doubtless be seeing more of these human rights cases for compensation being
brought against the Ministry of Defence the longer our forces stay in theater.
All of which is not to say that British forces will no longer be applying the law of
armed conflict when they are deployed on operations abroad or will be looking at
every military situation through the distorting lens of human rights obligations; it
simply means that in certain limited situations, where for example they may be oc-
cupying territory or they may be based in a foreign State with the consent of that
State, as is the case with both Iraq and Afghanistan, they are under an obligation to
apply the ECHR and HRA in relation to persons who are in their custody. But it
would be inconceivable for them to be required to apply human rights law to field
operations on the battlefield, where the law of armed conflict is and will remain the
applicable lex specialis.
Court-Martial Proceedings
Since the period of belligerent occupation in Iraq by the Coalition Provisional
Authority in 2003-04, there have been two principal British courts-martial which
resulted in the convictions of soldiers accused of transgressions in relation to the
treatment of detainees in Iraq, as well as two other high-profile court-martial cases
that failed for lack of evidence. The same facts that led to the civil proceedings in the
Al-Skeini litigation, in relation to the death of Baha Mousa in British military cus-
tody, resulted in the court-martial of seven servicemen in the United Kingdom in
2006. The trial, although not entirely a success, made legal history on two counts: it
involved the first instance of a British soldier pleading guilty to a war crimes charge
under the International Criminal Court Act 200 137 and it saw the first modern in-
stance of criminal charges being brought against senior British Army officers for
dereliction of duty — in international law the basis for such a charge would have
been the doctrine of command responsibility. Four soldiers of The Queen's
Lancashire Regiment were charged with inhumane treatment of the Iraqi civilians
in September 2006. Of these, one (Corporal Donald Payne) was additionally
charged under the Army Act 195538 with manslaughter and perverting the course
of justice, and another (Sergeant Kelvin Stacey) was charged with actual bodily
205
The Treatment of Detainees and the "Global War on Terror"
harm or assault. Two Intelligence Corps officers were charged with negligently per-
forming a duty, as was Colonel Jorge Mendonca, the regimental commander.39
Corporal Payne pleaded not guilty to manslaughter and perverting the course of
justice but guilty to the charge of inhumane treatment of civilians and was sen-
tenced to dismissal from the Army and one year's imprisonment in consequence.40
The other six accused were all acquitted due to lack of evidence.41 Although the
charge against Colonel Mendonca was eventually thrown out,42 he was notable for
being the highest-ranking British military officer in modern history to be charged
with a war crime, and particularly on command responsibility principles. When he
subsequently decided to resign from the Army, despite his acquittal, rather than
face possible further internal disciplinary action, there was much criticism of the
Attorney General and the Army Prosecuting Authority, who were accused of treat-
ing him as a scapegoat. There is clearly a fine line to tread here. On the one hand, if
there was not enough evidence to convict Colonel Mendonca of any crime, then it
was obviously right that he was acquitted. But the criticism of putting him on
court-martial simply "because the Army wanted to put an officer on trial"43 is be-
side the point: the system of hierarchy and command responsibility, whereby every
commander is legally responsible for the troops under his command, is a lynchpin
of the modern law of armed conflict. The case of Payne and Others teaches us that
we should not shy away from calling senior officers to account when troops under
their command commit criminal offenses. If the officer either ordered the crimes
or knew or should have known that they were occurring and "failed to take all nec-
essary and reasonable measures" to "prevent or repress their commission or to
submit the matter to the competent authorities for investigation and prosecu-
tion"44 then he must face investigation and, if appropriate, prosecution. It will not
do to concentrate on the ordinary soldiers and non-commissioned officers who
commit the actual abuse; they are easy targets for a prosecution.
The Al-Skeini litigation and its associated courts-martial, although the highest-
profile matter concerning treatment of detainees by British forces abroad, is not
the only case that we have had in the United Kingdom. Two specific cases have
gone to courts-martial within the last three years, although one of them did not re-
sult in a full trial as Fusilier Gary Bartlam, the soldier concerned, pleaded guilty.45
In The Queen v. Mark Paul Cooley, Darren Paul Larkin and Daniel Kenyon>4b the
three accused (all non-commissioned officers in The Royal Regiment of Fusiliers)
faced a total of nine charges under the Army Act.47 These included the same
charges as in Bartlam in relation to the same facts and others, namely, forcing two
detainees "to undress in front of others" and forcing two naked males "to simulate
a sexual act." In addition, offenses of conduct to the prejudice of good order and
military discipline (contrary to Section 69 of the Army Act) and committing a civil
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offense (contrary to Section 70 of the Army Act) were also charged. The Section 69
charges related to simulating the punching and kicking of an unknown male and
(in the case of Corporal Kenyon, the most senior of the defendants) failing to re-
port unlawful acts by soldiers under his command. The Section 70 charge involved
the assault and beating of an unknown male who was being detained by British
forces. All the incidents, both in Bartlam and in Cooley, Larkin and Kenyon, arose
out of an operation in "Camp Breadbasket" in the British Zone of Iraq near Basra
in May 2003, in which British troops rounded up a number of Iraqi civilians and
proceeded to "work them hard" (as the British commanding officer apparently in-
structed his men). This vague order, coupled with apparent failures in reporting
and supervision of conduct, led to several situations in which Iraqi detainees were
physically and mentally abused by British soldiers. The specific acts alleged in-
cluded punching and kicking detainees, stripping them and forcing them to simu-
late sexual acts. One soldier stood on a detainee; a group of others tied another
detainee to a forklift truck and raised him off the ground. Astonishingly, some of
these misdeeds were photographed by some of the soldiers, and it was when one of
the latter took his film to be developed back in Britain that the matter was reported
to the police for investigation. A particularly disturbing aspect of the case was the
failure to bring charges against the officer who gave the original order and subse-
quently failed to supervise his men. However, Camp Breadbasket covered quite a
large area and the particular abuses that were the subject of the court-martial oc-
curred in a discrete area of the camp some distance from where the commanding
officer was located, such that it would have been infeasible for him to have known
what was going on. Consequently, the Army Prosecuting Authority did not feel
that there was sufficient evidence to charge him with an offense under the doctrine
of command responsibility. Of the actual defendants in the case, Larkin pleaded
guilty to assault and was jailed for 140 days, while Kenyon and Cooley were both
convicted and sentenced to eighteen months' and two years' imprisonment, re-
spectively.48 Cooley's sentence was subsequently reduced to four months' impris-
onment by the Army Reviewing Authority.49
There has been much generalized concern as to allegations of ill-treatment of ci-
vilians (in some cases allegedly amounting to torture) by British troops in Iraq and
the subsequent investigations into such conduct by those troops.50 The issue re-
mains one of the greatest topical interest and a number of investigations are cur-
rently ongoing.51 Only time will tell how many more cases arise and can be
prosecuted.
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The Treatment of Detainees and the "Global War on Terror"
Recent Legal Developments in the United States
The long saga of detainee matters in the US courts has continued unabated and
there have been interesting developments in two cases in particular: United States
v. Hamdan and United States v. Khadr.52 In June 2007, two different US military
judges in two different sets of proceedings in military commissions threw out all
charges in the two cases, on the grounds that the accused had not been properly de-
termined to be "unlawful enemy combatants" in terms of the Military Commis-
sions Act of 2006; therefore all the charges were thrown out for lack of jurisdiction.
In respect to Hamdan, the judge held that the Combatant Status Review Tribunal's
(CSRT) determination that he was an "enemy combatant" was made for the pur-
pose of determining whether or not he was properly detained, rather than whether
or not he was subject to trial by military commission, and using a different legal
standard. He concluded:
[Hamdan] is either entitled to the protections accorded to a Prisoner of War, or he is an
alien unlawful enemy combatant subject to the jurisdiction of a Military Commission,
or he may have some other status. The Government [has] failed to determine, by
means of a competent tribunal, that he is an "unlawful enemy combatant" using the
definition established by Congress . . . .53
In respect to Khadr, the judge declared that "the military commission is not the
proper authority, under the provisions of the [Military Commissions Act], to de-
termine that Mr. Khadr is an unlawful enemy combatant in order to establish ini-
tial jurisdiction for this commission to try Mr. Khadr."54 The Court of Military
Commissions Review (CMCR), however, has since reversed that ruling on the
grounds that the distinction between "enemy combatant" and "unlawful enemy
combatant" status was purely semantic and that the judge had erred in his conclu-
sion that a CSRT determination of "unlawful enemy combatant" status was a pre-
requisite to trial by military commission, because the military commission itself
had jurisdiction so to determine.55 The CMCR accordingly reinstated the charges
against Khadr, and the Department of Defense has now indicated that it intends to
press ahead "expeditiously" with the full prosecutions of Khadr and other detain-
ees in the same position.56 Although some might have thought that the twin rulings
in June would provide a substantive obstacle to the entire system for the prosecu-
tion of detainees in the "War on Terror," throwing it into disarray and causing a
general rethink on the part of the Pentagon, clearly the setback to the Administra-
tion's plans was only a temporary, procedural one.
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The "Global War on Terror": Comments on the General Legal Framework
In the last part of this article I will consider the broader issues mentioned at the be-
ginning, namely, the broader international legal framework that might govern the
"Global War on Terror." In short, is it an armed conflict or not? And if it is, then
what kind of armed conflict is it? This is prompted by another detainee case that
has been heard recently in the United States. It is not a military case but a civilian
case: Al-Marri v. Wright,57 in which the applicant is a civilian citizen of Qatar who
was legally resident in the United States. Al-Marri had been detained by US mili-
tary authorities without charge and had been so detained for some four years. In
brief, the Court of Appeals ruled that he could not be detained indefinitely by the
military authorities and was entitled to habeas corpus. However, I do not intend to
dwell on that aspect of the case, but rather on something else that the Court said, al-
most as an aside. It is in a couple of sentences in one of the paragraphs buried in the
middle of the Court's opinion; it has apparently escaped the attention of most
observers.
The Court in Al-Marri said that because the US Supreme Court had determined
in Hamdan v. Rumsfeld58 that the armed conflict with Al-Qaeda is a conflict "not of
an international character" and because there are no categories of combatants in
non-international conflicts, neither lawful combatants nor unlawful combatants,
the Military Commissions Act did not apply to Al-Marri and the only remaining
possible classification of him was that he was a civilian.59 Because he was a civilian
and legally resident in the United States, he was entitled to certain constitutional
protections; as a civilian, he could not be transformed "into an enemy combatant
subject to indefinite military detention, any more than allegations of murder in as-
sociation with others while in military service permit the Government to transform
a civilian into a soldier subject to trial by court martial."60 This is interesting be-
cause it represents, in my opinion, one of the two best options for classifying de-
tainees in the "War on Terror" for the purposes of ensuring that they receive the
benefit of the best possible treatment in captivity.
This leads to a comparison of the Hamdan decision with the Israeli Supreme
Court's decision on targeted killings61 and with certain aspects of the situation that
the United Kingdom had in relation to Northern Ireland. The view of the plurality
in Hamdan was that "there is at least one provision of the Geneva Conventions
that applies here, even if the relevant conflict is not one between signatories."62
This the plurality identified as Common Article 3 of the Geneva Conventions,
which applies as a minimum standard for humanitarian protection in all armed
conflicts, although on the face of it the provision is directed specifically to armed
conflicts not of an international character, in which it provides basic protection to
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The Treatment of Detainees and the "Global War on Terror"
persons taking no active part in hostilities, including those placed hors de combat
by wounds or sickness and those who have surrendered or have otherwise been
detained. The key to this part of the decision in Hamdan was the phrase "armed
conflict not of an international character," a phrase which the plurality held to
have a meaning "in contradistinction to a conflict between nations": effectively a
negative definition, such that it could be interpreted as bringing within its ambit
any and all armed conflicts that do not fit within the traditional inter-State armed
conflict paradigm. The plurality asserted that this was the "literal meaning" of the
phrase "armed conflicts not of an international character," and that in any event
the intention behind the provision, while ostensibly restricted specifically to non-
international armed conflicts in the classic sense of international law, was for the
purposes of its scope of application and protection to be as wide as possible.63 Of
the dissenting opinions in Hamdan, only Justice Thomas dealt directly with the is-
sue of the nature of the conflict between the United States and Al-Qaeda. He held
that "the conflict with Al-Qaeda is international in character, in the sense that it is
occurring in various nations around the globe. Thus, it is also occurring in the ter-
ritory of more than one of the High Contracting Parties."64 Although he described
the plurality's interpretation of the phrase "armed conflicts not of an international
character" as "admittedly plausible" he nevertheless felt constrained by a judicial
duty of deference to the Executive's determination of matters of war and peace.65
So the plurality of the US Supreme Court held that the totality of the "Global
War on Terror" is an armed conflict not of an international character, proceeding
from what was essentially a functionalist perspective: the necessity to determine
the legality of the military commissions established by President Bush, and apply-
ing a literalist reading of the letter of the law. Turning now to a comparison with
the decision of the Israeli Supreme Court in respect to a much more limited sce-
nario— namely, Israel Defense Forces (IDF) actions against Palestinian militants in
the Occupied Palestinian Territories and in areas under the jurisdiction of the Pal-
estinian Authority — a much more holistic approach was applied by the Court in
seeking to explain the whole legal framework underpinning IDF operations in this
theater. The Israeli Supreme Court reached a diametrically opposite conclusion to
that of its American counterpart, namely, that the conflict between Israel and the
Palestinians is an international armed conflict.
Most international lawyers outside the Middle East would have thought that
that is a counterintuitive position to take, because normally for it to be an interna-
tional armed conflict, there have to be two or more States, and the Palestinians are
not a State in international law. So it looks a bit unlikely from that perspective, al-
though there are other grounds on which it could be plausible. For example, areas
that are still under Israeli occupation could be said to be still in a state of
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David Turns
international armed conflict by virtue of being under belligerent occupation. Con-
versely, the conflict between Israel and the Palestinians could not intuitively have
been considered a non-international armed conflict either, because some parts of
the Occupied Territories remain under the occupation of Israel and other parts are
under the jurisdiction of the Palestinian Authority and in neither case are they le-
gally part of the State of Israel. So it cannot be a non-international armed conflict,
because it is not occurring on the territory of only one State. The classification of
the armed conflict was a point of agreement between the petitioners and the State.
The latter made a very interesting point in its submissions:
The question of the classification of the conflict between Israel and the Palestinians is a
complicated question, with characteristics that point in different directions. In any
case, there is no need to decide that question in order to decide the petition. That is
because according to all of the classifications of armed conflict, the laws of armed
conflict will apply to the acts of the State. These laws allow striking at persons who are a
party to the armed conflict and take an active part in it, whether it is an international or
a non-international armed conflict, and even if it belongs to a new category of armed
conflict which has been developing over the last decade in international law: a category
of armed conflicts between States and terrorist organisations. According to each of
these categories, a person who is a party to the armed conflict and takes an active part in
it is a combatant, and it is permissible to strike at him.66
I think this is interesting for a number of reasons, one of which in this context is
that it amounts to saying that many of the rules in armed conflicts are now basi-
cally the same, irrespective of the classification of the conflict in question, so it is not
necessary to worry too much about whether the conflict is international or not.
This is certainly a tendency that has been gathering force, albeit in the slightly dif-
ferent context of application of penal sanctions for violations of the law of armed
conflict, since the jurisprudence of the International Criminal Tribunal for the
former Yugoslavia began to develop some twelve years ago. To the extent that the
State of Israel, through its counsel in this litigation, expressed the same view or a
variant thereof, it could be viewed as an example of the accumulation of opinio
juris on this point.
The Supreme Court of Israel, nevertheless, did not choose to go down the par-
ticular path opened to it by the State's submissions on the character of the armed
conflict between Israel and the Palestinians. Instead, it ruled simply that the appli-
cable law was that governing international armed conflicts and it did so for two
particular reasons:
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The Treatment of Detainees and the "Global War on Terror"
(1) the fact of the armed conflict crossing the frontiers of the State, i.e., the
pre- 1967 frontiers, and taking place within a context of belligerent
occupation;67 and
(2) by reference to the military capabilities of modern terrorist
organizations. This point is, I think, of more general application than the
specific situation that the Court was dealing with.
The latter point, in particular, is quite innovative. The Court expressed it thus:
The fact that the terrorist organisations and their members do not act in the name of a
State does not turn the struggle against them into a purely internal State conflict.
Indeed, in today's reality, a terrorist organisation is likely to have considerable military
capabilities. At times, they have military capabilities that exceed those of States.
Confrontation with those dangers cannot be restricted within the State and its penal
law. Confronting the dangers of terrorism constitutes a part of the international law
dealing with armed conflicts of an international character.68
The decisions of the US and Israeli Supreme Courts in these two cases repre-
sent two alternative classifications of the "War on Terror," or at least certain as-
pects thereof, as an armed conflict. While I think that there is much to commend
the contextual analysis that was adopted by the Israeli Court, the American ap-
proach seems somewhat literal by comparison. Nevertheless, at the very least the
US Supreme Court decision might signal a resurgence of an emphasis on the use-
fulness of Common Article 3 of the Geneva Conventions.69 That can be broad-
ened for those States that are parties to Additional Protocol I to the "fundamental
guarantees" contained in Article 75 thereof. What is innovative about the deci-
sion in Hamdan in this particular respect is that it applies Common Article 3 to
what is not really a non-international armed conflict as traditionally understood
in international law at all, but might rather be called a transnational armed con-
flict. That is to say, the conflict is neither specifically international nor specifically
non-international in nature within the traditional framework of the law of armed
conflict, but it is transnational because it occurs in more than one State in the
world simultaneously within the same context of hostilities. Common Article 3,
in any event, is the lowest common denominator for humanitarian protection: it
should have the widest scope of application possible, which essentially means it
should be applied in all armed conflicts, no matter how they are classified.
The Israeli decision, on the other hand, is seductive in the clarity and logic of its
analysis. However, it is quite clear that the Court there was only seeking to deal
with the situation as between Israel and Palestinian militants. Nevertheless, the
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passages quoted above might be interpreted as suggesting that a broader, more
sweeping statement of the law might have been intended, however peripherally, by
the Court.
Let me very briefly consider the Northern Ireland example, which is often men-
tioned as a predecessor in some ways for dealing with the "Global War on Terror."
In terms of the latter phrase, the experience of Northern Ireland clearly shows that
there is nothing new, at least rhetorically, in the use of such language. When the
power of internment — indefinite detention without charge or trial — was intro-
duced in the province in 1972, its Prime Minister, Brian Faulkner, said that North-
ern Ireland was "quite simply at war with the terrorist."70 The Irish Republican
Army (IRA) tried to claim prisoner of war (POW) status for its operatives who had
been detained by British security forces, a status which was not accepted by the
British authorities.71 Indeed, the perspective of the British government was that the
situation in Northern Ireland did not amount to an armed conflict of any kind in
the sense of international law; the legal framework within which it operated in the
United Kingdom being that of Military Aid to the Civil Power, wherein the armed
forces were deployed in Northern Ireland pursuant to a request from the Northern
Ireland government, which felt that the normal police forces could not contain the
escalating situation and needed military assistance to restore law and order. It
could not in any event have been an international armed conflict because Northern
Ireland is a part of the United Kingdom. It could not have been an Additional Pro-
tocol I situation, as a war of national liberation, even though that is what the IRA
sought to claim, first, because the United Kingdom was not at the time a party to
Additional Protocol I, and second, because the IRA failed to make the declaration
that is required of a national liberation movement under Article 96(3). Finally, it
could not have been a situation under Additional Protocol II, again because the
United Kingdom was not at the time a party to that instrument. In any event, the
threshold of application would not have been met by the IRA in terms of control of
territory, and the violence was for the most part too sporadic and isolated to meet
the Protocol's requirements.
The contemporary British position in terms of the "Global War on Terror" as an
armed conflict is that the United Kingdom does not accept the notion that such a
"war" exists as an armed conflict of any classification in international law. Any de-
termination as to the type of an armed conflict in which British forces are engaged
will be made on a case-by-case basis, depending on the facts on the ground in each
given situation.72 The legal basis of the decision in any event is the international law
definition of an international or non-international armed conflict, in conjunction
with the facts on the ground. If British forces are in action against the government
or other official forces of any other State, the situation will be dealt with as one of
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The Treatment of Detainees and the "Global War on Terror"
international armed conflict. In any other situation in which British troops are de-
ployed, the situation will be regarded as one of de facto non-international armed
conflict. Thus, from the official UK point of view, hostilities that are currently tak-
ing place in Afghanistan and Iraq are in effect treated as internal conflicts in which
the United Kingdom is participating on the side of the governments of those States.
The conflict in Iraq, for example, is not a conflict between the British and Iraqi
States: it is a conflict between the Iraqi State and Iraqi insurgents, and the former
invited British troops to assist it in certain parts of Iraq in combating the insur-
gency. Although this might, again, seem a counterintuitive position to take, it is not
entirely devoid of sense from a strictly legal perspective, in the same way that the
US Supreme Court's decision in Hamdan has a certain logic to it.
Concluding Remarks
I think that there are six possibilities that we could consider in terms of the broad
legal framework of the "Global War on Terror" in the sense of the law of armed
conflict.
(1) The "war" is an armed conflict and it is international in nature — that
would essentially be an extension of what the Israeli Supreme Court held
in the targeted killings case;
(2) The "war" is an armed conflict and it is non-international in nature —
that is what the US Supreme Court said in Hamdan;
(3) The "war" is an armed conflict and it has a new kind of hybrid status
which might be described as a "transnational armed conflict"73 — the
issue here is going to be that if we call it a "transnational armed conflict"
what actual rules do we apply? While this looks attractive as a
classification in some respects because it is factually realistic in terms of
the actual situation on the ground, it is not ultimately that helpful
because it does not tell us much about the details of the law to be applied;
(4) The "war" is an armed conflict and its precise classification in terms of
the law of armed conflict does not really matter because in any event we
will apply the minimum yardstick of Common Article 3 and — if the State
in question is a party to Additional Protocol I — we are also going to apply
the fundamental guarantees contained in Article 75;
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David Turns
(5) The "war" does not constitute an overarching armed conflict for the
purposes of international law — the various counterterrorist military
operations which have been taking place since September 2001 should be
viewed as falling primarily within the framework of large-scale criminal
law enforcement, albeit they are undertaken either largely or entirely by
military forces; and
(6) The "war" does not constitute an overarching armed conflict, but each
individual counterterrorist military operation in the context thereof
should be designated separately as either international or non-
international in nature, depending on the international law definition
and the facts on the ground — this is the position currently maintained by
the British government.
Ultimately, the most important issue here is the practical one of the standards
according to which detainees captured in counterterrorist military operations are
treated. The fundamental point is that the purpose of the law of armed conflict in
the context of detainee treatment has to be to provide the maximum amount of
protection possible, and if that means applying Common Article 3 at the very least,
then perhaps that is the best thing that we can do. But in some respects I would say
that it should not even matter too much if we treat detainees as POWs. This is not
the same thing as saying that they are POWs, just that we treat them as if they were
POWs. It does not stop the State from prosecuting them after capture, and by do-
ing so we would be applying the maximum possible humanitarian protection and
would be complying with the spirit and letter of Geneva Convention III.74
There is no logical reason, other than State pride, for this to be taken as a com-
mentary on the legitimacy or otherwise of the terrorist organizations — such atti-
tudes are in any event outmoded by the contemporary paradigm of asymmetrical
warfare and the inevitable diminution in the importance of reciprocity as a pri-
mary basis of obligation in the international law of armed conflict. I concede that
the view expressed herein is unlikely to be widely adopted at the present time, but it
seems to me to be a rational and practical one. At the end of the day, the law in war
has to protect detainees, and what we need is not more law but agreement on the
basic parameters of applying Common Article 3, what that means in practice, and
firm and consistent application of Article 75 of Additional Protocol I for those
States that are parties thereto.75
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The Treatment of Detainees and the "Global War on Terror"
Notes
1 . This article will not as such consider the preliminary issue of the status or classification of
detainees under the international law of armed conflict, although that aspect of the analysis is of
obvious relevance to the broader framework of the discussion. For a representative sample of the
vast legal literature thereon, see George H. Aldrich, The Taliban, Al Qaeda, and the Determina-
tion of Illegal Combatants, 96 AMERICAN JOURNAL OF INTERNATIONAL LAW 891 (2002); Neil
McDonald 8c Scott Sullivan, Rational Interpretation in Irrational Times: The Third Geneva
Convention and the "War on Terror," 44 HARVARD INTERNATIONAL LAW JOURNAL 301
(2003); Joseph P. Bialke, Al-Qaeda & Taliban Unlawful Combatant Detainees, Unlawful Belliger-
ency and the International Laws of Armed Conflict, 55 AIR FORCE LAW REVIEW 1 (2004); John C.
Yoo, The Status of Soldiers and Terrorists under the Geneva Conventions, 3 CHINESE JOURNAL OF
INTERNATIONAL LAW 135 (2004); Derek Jinks, The Declining Significance of POW Status, 45
Harvard International Law JOURNAL 367 (2004); Marco Sassdli, The Status of Persons Held
in Guantdnamo under International Humanitarian Law, 2 JOURNAL OF INTERNATIONAL CRIMI-
NAL JUSTICE 96 (2004); Luisa Vierucci, Is the Geneva Convention on Prisoners of War Obsolete?
The Views of the Counsel to the US President on the Application of International Law to the Afghan
Conflict, 2 Journal of International Criminal Justice 866 (2004); Joseph Blocher, Com-
batant Status Review Tribunals: Flawed Answers to the Wrong Question, 1 16 YALE LAW JOURNAL
667 (2006).
2. Again, the literature on jus ad bellum aspects of the "Global War on Terror" is extensive.
For a representative sample, see Michael Byers, Terrorism, the Use of Force and International Law
after 11 September, 51 INTERNATIONAL AND COMPARATIVE LAW QUARTERLY 401 (2002); Karl
M. Meessen, Unilateral Recourse to Military Force Against Terrorist Attacks, 28 YALE JOURNAL OF
INTERNATIONAL LAW 341 (2003); GregTravalio & John Altenburg, Terrorism, State Responsibil-
ity and the Use of Force, 4 CHICAGO JOURNAL OF INTERNATIONAL LAW 97 (2003); Joshua E.
Kastenberg, The Use of Conventional International Law in Combating Terrorism: A Maginot Line
for Modern Civilization Employing the Principles of Anticipatory Self-Defense & Preemption, 55
AIR FORCE LAW REVIEW 87 (2004); Kimberley N. Trapp, Back to Basics: Necessity, Proportional-
ity, and the Right of Self- Defence against Non-State Terrorist Actors, 56 INTERNATIONAL AND
COMPARATIVE LAW QUARTERLY 141 (2007).
3. The various public reports, both from US official sources and international non-
governmental sources, collectively summarize the substance of the mistreatment that is known
to have occurred at Abu Ghraib and in other detention facilities under US or British control in
Iraq. See, e.g., Report of the International Committee of the Red Cross (ICRC) on the Treatment
by the Coalition Forces of Prisoners of War and Other Protected Persons by the Geneva Conven-
tions [sic] in Iraq During Arrest, Internment and Interrogation (Feb. 2004), available at
www.globalsecurity.org/military/library/report/2004/icrc_report_iraq_feb2004.pdf; Article 1 5-6
Investigation of the 800th Military Police Brigade (Mar. 2004) (the "Taguba Report"), available
at www.globalsecurity.org/intell/library/reports/2004/800-mp-bde.htm; Final Report of the In-
dependent Panel to Review DoD Detention Operations (Aug. 2004) (the "Schlesinger Report"),
available flfwww.humanrightsfirst.org/us_law/PDF/abuse/Schlesingcr_report.pdf.
4. Convention for the Amelioration of the Condition of the Wounded and Sick in Armed
Forces in the Field, Aug. 12, 1949, 75 U.N.T.S. 31; Convention for the Amelioration of the Con-
dition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949,
75 U.N.T.S. 85; Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 75
U.N.T.S. 135 [hereinafter Geneva Convention III]; Convention Relative to the Protection of
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David Turns
Civilian Persons in Time of War, Aug. 12, 1949, 75 U.N.T.S. 287. For the purposes of this article,
only Geneva Convention III will be relevant to the discussion hereafter.
5. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of International Armed Conflicts (Protocol I), June 8, 1977, 1 125 U.N.T.S.
3; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protec-
tion of Victims of Non-International Armed Conflicts (Protocol II), June 8, 1977, 1 125 U.N.T.S.
609.
6. E.g., the infamous dismissal of much of the Geneva Conventions as "quaint" and "obso-
lete" by then-US Attorney General Alberto R. Gonzales in his Memorandum to the President
Decision Re Application of the Geneva Convention on Prisoners of War to the Conflict with Al
Qaeda and the Taliban (Jan. 25, 2002), reprinted in THE TORTURE PAPERS: THE ROAD TO ABU
GHRAIB 118 (Karen L. Greenberg & Joshua L. Dratel eds., 2005), available atwww.gwu.edu/
~nsarchiv/NSAEBB127/02,01.25.pdf.
7. 151 CONG. REC. SI 1062 (daily ed. Oct. 5, 2005) (statement of Senator John McCain).
8. The "Troubles" is the euphemistic term used to refer to the period between 1969 and
1998 in Northern Ireland, when high levels of violent activities by the Irish Republican Army
(IRA) and other armed paramilitary groups on both the Nationalist/Catholic and Unionist/
Protestant sides of the province's sectarian divide necessitated the deployment of British mili-
tary forces on the streets of the province to assist in the restoration and maintenance of law and
order. The troops were initially deployed in August 1969 and, although the period of the
"Troubles" can be said to have substantively ended in June 1998, when elections for the North-
ern Ireland Assembly took place against the background of a referendum approving the "Good
Friday Peace Agreement" of April 1 998 and ceasefires by most of the various paramilitary orga-
nizations active in the province, Operation BANNER (Army operations in Northern Ireland
pursuant to the state of emergency that was declared in 1969) was only formally terminated
in July 2007. See Defence News, Operation BANNER ends in Northern Ireland after 38 years
(Aug. 1, 2007), www.mod.uk/DefenceInternet/DefenceNews/DefencePolicyAndBusiness/
OperationBannerEndsInNorthernIrelandAfter38Years.htm.
9. Al-Skeini and Others v. Secretary of State for Defence, [2007] UKHL 26 [hereinafter Al-
Skeini(HL)].
10. See Michael Evans, Family of dead Iraqi assaulted by British troops can sue MoD, THE
TIMES (London), June 14, 2007, at 32, available at www.timesonline.co.uk/tol/news/world/iraq/
article 1929367.ece.
11. See United Nations S.C. Res. 1483, UN Doc. S/RES/1483 (May 22, 2003), in which the
Council expressly recognized "the specific authorities, responsibilities, and obligations under
applicable international law of these states as occupying powers under unified command."
12. Al-Skeini (HL), supra note 9.
13. The facts in these first five cases are described in some detail in the first instance judg-
ment of the Divisional Court of the Queen's Bench Division of the High Court: The Queen (on
the application of Al-Skeini and Others) v. Secretary of State for Defence, [2005] 2 W.L.R. 1401,
paras. 55-89 [hereinafter Al-Skeini (DC)].
14. Id., paras. 81-89.
15. Human Rights Act, 1998, c. 42 [hereinafter HRA].
16. European Convention for the Protection of Human Rights and Fundamental Freedoms,
Nov. 4, 1950, C.E.T.S. No. 5 [hereinafter ECHR].
1 7. The Queen (on the application of Al-Skeini and Others) v. Secretary of State for Defence,
[2006] 3 W.L.R. 508 [hereinafter Al-Skeini (CA)].
18. ECHR, supra note 16, art. 1 (emphasis added).
217
The Treatment of Detainees and the "Global War on Terror"
19. Literally, the "juridical space" of the Convention, i.e., (for the purposes of the present
analysis) the geographical area within which the Convention rights can apply.
20. The ECtHR jurisprudence is confusing and contradictory but its two principal ap-
proaches to the extraterritorial application of Convention rights by military forces of a State
Party are derived from Loizidou v. Turkey (Preliminary Objections), Judgment of 23 Mar. 1995,
ECHR Series A no. 310 (holding that, as Turkey exercises "effective control" in northern Cyprus,
a territory that had formerly had the benefit of Convention rights as part of the Republic of Cy-
prus, Turkey must apply the Convention in that territory); and Bankovic and Others v. Belgium
and 16 Other Contracting States [GC], no. 52207/99, ECHR 2001 -XII (holding that "effective
control" means the exercise of some or all of the public powers of the government, and that as the
ECHR is an essentially regional treaty instrument with limited geographical reach, it was not in-
tended to apply throughout the world in States that had never been parties to the Convention,
even in respect to conduct by States that were parties thereto). The effect of the decision in
Bankovic, clearly, was to construe narrowly the "effective control" doctrine elucidated in
Loizidou. Thus, bombing the Federal Republic of Yugoslavia (FRY) from a height of 30,000 feet
was not considered to amount to effective control of the territory for the purposes of extraterri-
torial application of the ECHR, because the FRY was not within the "espace juridique" of the
Convention. Id., para. 80.
21. HRA, supra note 15, sec. 6(1).
22. The government conceded the point already in the wake of its defeat in respect to Baha
Mousa in the Divisional Court. See Al-Skeini (CA), supra note 17, para. 6.
23. Supra note 20.
24. Id.
25. Judgment of June 26, 1992, ECHR Series A no. 240.
26. Al-Skeini (DC), supra note 13, para. 287.
27. Judgment of Nov. 16, 2004, ECHR no. 31821/96.
28. Al-Skeini (CA), supra note 17, para. 91.
29. Id., para. 96.
30. Al-Skeini (HL), supra note 9, para. 127.
31. Id., para. 129.
32. Id., para. 132.
33. See Michael Evans, MoD sued over '36 hours ofhelV in Basra, THE TIMES (London), Nov.
16, 2007, at 25, available at http://www.timesonline.co.uk/tol/news/world/iraq/article2879821
.ece.
34. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
Advisory Opinion, 2004 I.C.J. 136, 178 (July 9).
35. See, e.g., Paul Adams, Army verdict throws up questions, BBC NEWS, June 7, 2006, http://
news.bbc.co.uk/ l/hi/uk/5056944.stm.
36. See generally Current Notes, German War Trials - Report of Proceedings before the Su-
preme Court in Leipzig, 16 AMERICAN JOURNAL OF INTERNATIONAL LAW 628 (1922).
37. International Criminal Court Act, 2001, c. 17. The Act does not provide for the Interna-
tional Criminal Court (ICC) to have jurisdiction over British servicemen, despite its title. On the
contrary, it provides for comprehensive definitions of, and UK criminal court jurisdiction over,
the crimes that are contained in the [CC Statute.
38. Army Act, 1955, c. 18.
39. The Queen v. 1 >onald Payne and Others, ( icneral Court-Martial, charge sheet available
at \\\v\v.aiiny.in<)cl.iik/apa/c()urts_martiaLtrials/payne_and_others/_charge_sheet.htm.
218
David Turns
40. UK soldier jailed over Iraq abuse, BBC NEWS, Apr. 30, 2007, http://news.bbc.co.uk/ 1/hi/
uk/6609237.stm.
41 . 'Historic' abuse court martial ends, BBC NEWS, Mar. 13, 2007, http://news.bbc.co.Uk/l/
hi/uk/6445633.stm.
42. Duncan Hooper, Colonel cleared over mistreatment of Iraqis, TELE-
GRAPH. CO. UK, Feb. 14, 2007, http://www.telegraph.co. uk/news/main.jhtml;jsessionid=
AXNGII3LURBQXQFIQMGSFFOAVCBQWIV0?xml=/news/2007/02/14nmendoncall4.xml.
43. Stewart Payne & Nigel Bunyan, Officers attack MoD over 'scapegoat' Mendonca, TELE-
GRAPH.CO. UK, June 2, 2007, http://www.telegraph.co. uk/news/main.jhtml?xml=/news/2007/
06/02/narmy02.xml.
44. Rome Statute of the International Criminal Court art. 28(a), July 17, 1998, 2187
U.N.T.S. 90, reprinted in 37 INTERNATIONAL LEGAL MATERIALS 999 (1998).
45. This was the case of The Queen v. Gary Paul Bartlam (unreported, General Court-Martial,
Jan. 7, 2005). Fusilier Bartlam pleaded guilty to three charges of aiding and abetting another sol-
dier who "placed an unknown male, who was being detained by British Forces and whose hands
were tied, on the forks of a forklift truck, raised the forks and drove the forklift truck," and of
photographing "two unknown males who were being detained by British Forces and who were
being forced to simulate a sexual act." He was given a dishonorable discharge and sentenced to
eighteen months in a young offenders' establishment, although this was subsequently reduced by
the Army Reviewing Authority to twelve months' military detention.
46. Unreported, General Court-Martial, Feb. 23, 2005.
47. Supra note 38.
48. Martin Hickman, British soldiers who abused Iraqis are jailed and dismissed from the
Army, THE INDEPENDENT, Feb. 26, 2005, http://news.independent.co.uk/uk/politics/articlel3012
.ece.
49. Daniel McGrory, Iraq abuse soldier to be freed after four months, TlMESONLINE, June 2,
2005, http://www.timesonline.co.uk/tol/news/world/iraq/article528925.ece.
50. See UK Parliament, Joint Committee on Human Rights, Session 2005-2006, Nineteenth
Report, The UN Convention Against Torture (CAT), May 26, 2006, HL Paper 185-1/HC 701-1,
paras. 68-89.
5 1 . See, e.g., Richard Norton -Taylor, Lawyers take MoD to court over Iraqi mutilation claims,
THE GUARDIAN (London), Oct. 18, 2007, (Top Stories) at 1, available at http://www.guardian
.co.uk/uk/2007/oct/ 1 8/iraq.iraq.
52. United States of America v. Salim Ahmed Hamdan (Decision and Order - Motion to
Dismiss for Lack of Jurisdiction), Guantanamo Bay Military Commission, June 4, 2007, avail-
able flfwww.nimj.com/documents/Hamdan%200rder.pdf; United States of America v. Omar
Ahmed Khadr (Order on Jurisdiction), Guantanamo Bay Military Commission, June 4, 2007,
avfl?7fl^/eatwww.defenselink.mil/news/jun2007/khadrJudgesDismissalOrder(June%204).pdf.
53. Hamdan, supra note 52, at 3.
54. Khadr, supra note 52, at 2.
55. United States of America v. Omar Ahmed Khadr (CMCR 07-001), Sept. 24, 2007, avail-
able at www Aeiense\ink.mi\/news/Sep2007 /KHADR JDecision{24_SepJ)7)(25_pa§,es).pdf.
56. Caitlin Price, Pentagon to move ahead on Khadr trial after court approves jurisdiction,
JURIST, Sept. 25, 2007, http://jurist.law.pitt.edu/paperchase/2007/09/pentagon-to-move-ahead
-on-khadr-trial.php.
57. Al-Marri v. Wright, 487 F.3d 160 (4th Cir. 2007).
58. Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006).
59. Al-Marri, 487 F.3d at 184-90.
219
The Treatment of Detainees and the "Global War on Terror"
60. Id. at 186.
61. Public Committee Against Torture in Israel v. Government of Israel, HCJ 769/02, Dec.
13, 2006, mailable at http://elyonl.court.gov.il/files_eng/02/690/007/a34/02007690.a34.pdf.
62. Hamdan, 126 S. Ct. at 2795.
63. Id. at 2795-96.
64. Id. at 2846 (Thomas, J., dissenting).
65. Id.
66. Public Committee Against Torture, supra note 61, para. 11.
67. Id., para. 18.
68. Id., para. 21.
69. The latest reissue of the US Army Field Manual on Human Intelligence Collector Opera-
tions incorporates reference to Common Article 3 as the benchmark for a single humane stan-
dard of treatment for all detainees in military custody, regardless of their status. See
Headquarters, Department of the Army, Human Intelligence Collector Operations, FM 2-22.3
(2006), available at http://vsrww.army.mil/institution/armypublicaffairs/pdf/fm2-22-3.pdf. See
also Deputy Secretary of Defense, The Department of Defense Detainee Program, DoD Directive
2310.01E (2006), available at http://www.dtic.mil/whs/directives/corres/pdf/231001p.pdf.
70. Northern Ireland activates internment law, BBC NEWS, Aug. 9, 1971, news.bbc.co.uk/
onthisday/hi/dates/stories/august/9/newsid_4071 000/407 1849.stm.
7 1 . See C.P. Walker, Irish Republican Prisoners - Political Detainees, Prisoners of War or Com-
mon Criminals?, XIX THE IRISH JURIST 189, 189-90 (1984).
72. See UK MINISTRY OF DEFENCE, THE MANUAL OF THE LAW OF ARMED CONFLICT paras.
3.1-3.1.3(2004).
73. For a similar argument developed in much more detail, see the interesting discussion in
Geoffrey S. Corn, "Snipers in the Minaret — What Is the Rule?" The Law of War and the Protection
of Cultural Property: A Complex Equation, THE ARMY LAWYER, July 2005, at 28, 3 1 n.27. Corn ar-
gues cogently for a pragmatic characterization of military operations by States against non-State
transnational terrorist elements as either "simply 'armed conflicts'" or transnational armed con-
flicts, reflecting the global reach of such operations, which trigger application of the basic princi-
ples of military necessity and humanity (the latter as reflected in Common Article 3 and
Additional Protocol II) as a matter of customary international law. There is much to commend
this analysis. In its application of Common Article 3, at least, it uses principles of the law of
armed conflict on which there is universal agreement, while simultaneously respecting the pecu-
liar characteristics of such conflicts. Nevertheless, it remains vague as to what specific rules on
the conduct of hostilities would be applicable.
74. Article 5 of Geneva Convention III, supra note 4, specifies that "[sjhould any doubt arise
as to whether persons . . . belong to [the category of POW], such persons shall enjoy the protec-
tion of the present Convention until such time as their status has been determined by a compe-
tent tribunal." In my opinion, it is abundantly clear from the continuing controversy over the
status and treatment of detainees that doubt has indeed arisen.
75. It is regrettable to conclude on a negative note, but for a contrary view to the one es-
poused herein, see the comments of John B. Bellinger, Legal Advisor to the US Department of
State:
Critics have suggested that the United States is backing away from the Geneva
Conventions or ignoring them, and I want to be crystal clear, the United States remains
absolutely committed to the Geneva Conventions. We support them, we apply them.
But one does have to read what they say. They do not apply to every situation. They in
fact apply to conflicts between states. So therefore the Geneva Conventions do not give
220
David Turns
you the answers about who can be held in a conflict with a non-state actor. They do not
tell you how long you can hold someone in a conflict with a non-state actor. They do
not tell you what countries to return people to ... . The United States is firmly
committed to the law that applies. We're also committed to working with other
countries around the world to develop new legal norms in cases where existing law does
not give one the answers. But what we do think is problematic is to simply suggest that
the Geneva Conventions provide all the answers in fighting international terrorism,
and that countries simply need to follow the Geneva Conventions and that is the end of
the matter.
US Mission to the United Nations in Geneva, Press Conference by the US Delegation to the 30th
International Conference of the Red Cross and Red Crescent Movement (Nov. 27, 2007), http://
geneva.usmission.gov/Press2007/1127RedCross.html.
/
221
PARTY
COALITION OPERATIONS
XI
Issues Arising from Coalition Operations:
An Operational Lawyer's Perspective
Neil Brown*
The aim of this article is to illustrate the types of practical legal issues that arise
during coalition operations and how they maybe managed. These issues are
drawn from my experience in relation to operations involving UK forces during
the period from October 2002 to February 2005 and, in particular, to the period of
combat operations that followed the invasion of Iraq in March 2003. Given that
they relate in part to operations that are continuing today, my ability to disclose de-
tail is strictly limited, but I will endeavor to provide practical examples to illustrate
points where I can.
The Role of the Operational Lawyer
Among the essential functions of every coalition commander is the requirement,
in the planning and execution of a mission, to identify and manage the differing
military capabilities across his force. It follows, therefore, that insofar as they might
impact on the scope of the military missions, the role of his operational lawyer in
the planning and conduct of the mission is to identify, minimize and manage the
* Captain, Royal Navy. The views expressed in this article are those of the author and do not
represent those of the Royal Navy, the United Kingdom Ministry of Defence or Her Majesty's
Government.
Issues Arising from Coalition Operations: An Operational Lawyer's Perspective
different national legal positions and to ensure that his commander is fully sighted
on them. This requires a deep knowledge not only of "his own" national legal posi-
tion, but also of those of each coalition partner, drawing on whether each has ratified
treaties and conventions (and, if so, with what reservations and understandings),
as well as an understanding of each State's practice, opinio juris and academic
writings.
With the increasingly frequent deployment of forces to multinational peace-
keeping and peace-enforcement missions throughout the 1990s, legal differences
between even the closest coalition partners, which had remained largely below the
radar during decades dominated by Cold War planning, became increasingly visi-
ble. By the end of that decade, many lessons had been identified and were the sub-
ject of the closest examination from the general, such as our respective positions on
the use of lethal force in the defense of property, to the specific, such as "What could
we have done under our own laws if faced with a 'Srebrenica'?"1
The invasion and occupation of Iraq by coalition forces in 2003 threw up a great
many "coalition issues" but I will focus on three: first, those arising from targeting;
second, those in relation to rules of engagement (ROE); and third, those arising
from the capture of internees, detainees and prisoners of war. I will return to the
main subjects shortly, but, using a well-known example, let me start by illustrating
the sort of complex coalition issues that may arise.
Anti-personnel Landmines
An oft-cited example of coalition differences is the Ottawa Convention on land-
mines.2 Put simply, signatories to this Convention may not use anti-personnel
landmines in the "victim-initiated mode," that is, when they may be exploded by
the presence, proximity or contact of a person. It does not, however, prevent either
the use of other types of landmines, or indeed the use of anti-personnel landmines
other than in the "victim-initiated mode."
While this presents the land component commander of a coalition force com-
prised of both "Ottawa" and "non-Ottawa" States with a tactical complication, the
legal issues extend beyond the "mere" tactical. If a commander, as a result of treaty
obligations placed upon him by "Ottawa," cannot authorize the use of air-dropped
anti-personnel landmines to deny an enemy access to a particular facility, he may
be laced with the expectation of a higher number of civilian casualties as a result of
a kinetic strike. If expected civilian casualties are excessive in relation to the direct
and concrete military advantage anticipated, no attack may be possible. Even if not
excessive, they may, of course, be greater than those expected if landmines were
used instead. There may, therefore, be a tension between treaty obligations. Indeed,
226
Neil Brown
given that prohibitions under "Ottawa" extend to those who would "use, develop,
produce, otherwise acquire, stockpile, retain or transfer to anyone, directly or indi-
rectly"3 or who would "assist, encourage, induce anyone else to engage in prohib-
ited activity"4 differing national positions within a coalition might have wider
repercussions and complicate the provision of basing and the management of
complex air-tasking order cycles during high-intensity warfighting.
Legal Framework for the Conduct of Operations in Iraq from March to May 2003
Whatever the precise legal bases adopted by coalition partners for the conduct of
operations, and there were subtle differences among the coalition positions, the
most important legal question at the operational and tactical levels was of the legal
framework to regulate the conduct of the operation. What was clear by early 2003
was that any invasion would precipitate an armed conflict in which the operative
law would be the law of armed conflict.
Targeting
The Gulf War of 1991 generated much legal debate over the extent to which Addi-
tional Protocol I (AP I)5 was said to codify the customary international law on the
use of force in armed conflict. This may have been in part because at the time, while
most of the members of the coalition against Iraq had ratified AP I, the United
Kingdom and Australia had signed but not ratified, and the United States had
signed but in 1987 announced that it did not intend to become a party. This, and
the fact that Iraq had not even signed it, meant that AP I was therefore not applica-
ble to those hostilities. Between 1991 and 2003 there had been only modest change
to the overall position in that the United Kingdom (like Australia) had ratified AP I,
whereas the United States and Iraq had not. Nevertheless, in 2003 as a matter of
practice it is arguable that the definition of a military objective and the principles of
distinction and proportionality, even the use of precautions in attack, as they are
set out in AP I,6 were generally applied by all coalition forces. Put simply, if asked
whether as a matter of practice AP I differences were significant in the early part of
2003, 1 would have to say that on the whole they were not.
Among the reasons for this, a number are simply practical. The relatively
straightforward application of customary international law as reflected in AP I
during the high-intensity warfighting operations in the first half of 2003 was due in
part to the scale and character of the operation. Despite its formidable military
power, the 2003 invasion force was about half the size of that which had evicted
Iraq from Kuwait in 1991. This relatively small force embarked upon a high-speed
227
Issues Arising from Coalition Operations: An Operational Lawyer's Perspective
land offensive on a single axis aimed at Baghdad. This had three consequences that,
taken together, had a significant legal effect. First, by the time of the invasion the
warfighting mission was — effectively — an agreed one. Second, the scale and char-
acter of the land maneuver had required the governments of coalition forces to del-
egate the authority to conduct attacks to their commanders in theater. And third,
in those first six weeks or so of operations, coalition forces conducted what was, le-
gally speaking, a most conventional international armed conflict.
The proportionality test — as it applies in targeting, and in particular to the cen-
ter of gravity, which is a determination of the military advantage — is ideally suited
to use by military commanders in support of their forces engaged in a conven-
tional land campaign. That is not to say that there will not be differences, but most
differences are, in my experience, successfully resolved by staff officers in theater
who have an understanding of, and respect for, each others' national positions.
This was greatly assisted in 2003 by the presence in deployed headquarters of UK
and US officers who were able to draw upon shared experience and mutual confi-
dence that had grown out of operations conducted together since 9/11 in relation
to Afghanistan. Finally, and perhaps ironically in light of events which have en-
sued, it must be accepted that the initial combat operations were successful; so
successful that commanders were able to apply a cautious approach without any
obvious military penalty, and could have decided not to authorize attacks which,
while capable of being conducted lawfully, might have had an adverse information
operations impact.
I have until now focused on the issues as they relate to what might be called "de-
liberate targeting." This is where the most senior military commanders in theater,
supported by technologically sophisticated targeting systems and specialist staffs,
including (among others) targeteers, intelligence officers, image analysts, opera-
tional analysts and, of course, legal advisers, make command decisions on the le-
gality of airstrikes as part of a huge and sophisticated command process. Such
processes are quite capable of delivering kinetic attacks by hundreds of aircraft
throughout a campaign. While that process is incredibly accurate and — for its size
and complexity — agile, not all air attacks can be subject to the deliberate targeting
process however expedited. While the law places the heaviest burden on senior
commanders to take the greatest steps to avoid or minimize the effects of an attack
on civilians to the extent that it is feasible for them to do so, the reality is that the
obligations upon all who plan, authorize and conduct attacks are derived from the
same law. Therefore, it is perhaps a dangerous oversimplification to suggest that,
except where attacks are approved as a part of a deliberate targeting process, the use
of force is solely a matter for ROE.
228
Neil Brown
In order to provide support to land forces engaging the enemy in a city or built-
up area, the availability of immediate kinetic support to be applied with the highest
possible accuracy is necessary. In 2003, in response to an "urgent operational re-
quirement," coalition partners acting independently produced strikingly similar
direction and guidance that identified the same legal obligations, identified the re-
spective legal responsibilities of those requiring close air support and those directly
involved in providing it, and sought to ensure that within what was a tactical-level
targeting process all involved were quite clear as to "who owned the bomb" so that
legal obligations were discharged. Coalition forces were effectively interoperable in
this respect.
Rules of Engagement
Having set out some of the successful features of recent coalition operations and
demonstrated their interoperability, I now have to make an admission — in 2003
the coalition partners at all times operated on their own separate targeting direc-
tives and their own separate rules of engagement. It is with this in mind that I have
been asked to consider the problems that flow from not having coalition ROE.
Having trained as an operational lawyer in the years that followed Kosovo, I was
keenly aware of the perception that coalition operations are necessarily fraught
with difficulties or, in the view of some, that they may be more trouble than they
are worth. The difficulties of Kosovo and other coalition operations in the 1990s
have clearly had a lasting impact in military legal circles on both sides of the Atlan-
tic and may even be behind the specific question which I have been asked to
address.
There is no doubt that in each of our respective nations ROE can mean different
things. They can be placed in different parts of mission directives or operational or-
ders. They can be presented in the form of guidance or orders. They can use differ-
ent language and style. However, as I have sought to suggest here, if the legal basis
for the mission and the legal framework for the use of force used by coalition part-
ners are sufficiently coherent, then the use of different ROE doctrine, formatting,
style and process is entirely manageable. The key question about national ROE in
the coalition context is "What exactly do they mean7"
Too often, operators, and even occasionally military lawyers, have been tempted
to label differences in national law or policy as "ROE problems." Such debate does
not begin to identify the problem, only the symptom. If different ROE are rules or
guidance (that distinction is not important here) that reflect a common legal au-
thority to conduct a mission then their effects will be largely the same.
229
Issues Arising from Coalition Operations: An Operational Lawyer's Perspective
For more than a decade after the passing of the UN Security Council resolution7
to enforce the sanctions imposed after the Iraqi invasion of Kuwait maritime com-
manders enjoyed the use of a mandate that was perhaps unprecedented in its sim-
plicity and robustness, and became accustomed to stopping vessels — indeed "all
inward and outward maritime shipping" — in order to ensure strict implementa-
tion of the embargo imposed by Security Council Resolution 66 1.8 Once estab-
lished that a vessel was proceeding to or from Iraq (not too arduous a task given the
geography of the northern Arabian Gulf) there was no requirement to have either
the "suspicion" or "reasonable grounds" as to its precise activity before boarding
that are common requirements in peace and (in relation to neutral vessels) in
armed conflict.
Post-9/11 maritime operations were not legally so straightforward. Indeed, in
the context of maritime security operations, the vexing issue of masters' consen-
sual boardings illustrates the altogether different legal picture that exists. Among
coalition partners, some (including the United Kingdom) do not believe that the
master has the authority to permit boardings by foreign authorities under either
the 1982 United Nations Convention on the Law of the Sea9 or the customary law
of the sea. Others disagree and take the position that with the voluntary permission
of the master not only may the vessel be boarded, but the ship's papers and cargo
may be inspected.10 While this and other national legal positions may be reduced
by operators to a matrix of coalition ROE and a "traffic light" encapsulation of
what certain States can and cannot do, this is not a ROE issue. Instead, it is the seri-
ous business of sovereign States having different views on the status of interna-
tional law; views to which they are entitled and views which will not be remedied by
simple request to the chain of command to modify the ROE.
The conundrum for military lawyers is to ensure that the status of ROE, and in
particular the relationship between ROE and the law, is absolutely clear. This task is
difficult enough within national armed forces, but within a coalition it is quite pos-
sible that national positions could range from "if the ROE permit me to act my ac-
tions are lawful" to "the ROE permit me to act within the law." The implications of
such different approaches are plain — if we are unable to identify the link between
ROE and legal authority for them the cohesion of the coalition is at risk.
There has been a crucial debate in academic and military legal circles in recent
years on the issue of "direct participation in hostilities." What does it mean, how-
ever, when ROE permit a relatively junior commander to declare unidentified at-
tackers "hostile"? Does it mean that a test for the "direct participation" has been
met or is he simply determining that they are a threat against which lethal force
may be used in self-defense? If it is the former, the conduct of any attack will be reg-
ulated by the law of armed conflict and the operative proportionality rule will likely
230
Neil Brown
be much more permissive than that available under any national laws. If it is the
former, in an armed conflict, those captured will have the right to be treated as pris-
oners of war. These are the legal implications which can flow from the application
of ROE at the individual unit level.
A coalition commander must be vested (by his operational lawyer) with a com-
pete understanding of what coalition forces can and cannot do, and why. He must
know whether he can expect disparities to be remedied by a ROE request for addi-
tional authority to act, or whether a States' forces are already at the limits of their
national legal positions. Coalition commanders must appreciate whether those na-
tional positions are policy positions (which may change) or legal positions (which
may be less likely to change). Will a common ROE remedy these perceived prob-
lems? My short answer to this is no, but I can quite see how the use of common lan-
guage and form might greatly assist the process of identifying, minimizing and
managing different national positions.
Prisoners of War, Detainees and Internees
Given the almost immediate and widespread legal controversy that surrounded the
establishment of the detention facility at the US naval base at Guantanamo Bay,
Cuba, the conclusion by the three main coalition partners in March 2003 of a
memorandum of understanding (MOU) for the handling and transfer of prisoners
of war, internees and detainees in Iraq was a clear indication of the anticipated
"conventional" international armed conflict which was to commence with the in-
vasion. The power to capture enemy combatants in Iraq was derived from belliger-
ent powers under the law of armed conflict and the conditions for their treatment
were, the partners agreed, set out in the Third Geneva Convention.11 The resultant
MOU was, in great part, similar to that agreed by their predecessors in 1991 and
provided, in particular, for the transfer of prisoners between coalition partners.
And so if asked whether there were, during combat operations in 2003, signifi-
cant coalition problems in relation to the handling of prisoners of war, internees
and detainees in Iraq as a result of any different interpretation of the law of armed
conflict I would have to say no. Even when the actions of a large proportion of the
Iraqi military who abandoned their units and uniforms at an early stage in the war
threw up unexpected challenges, the handling of issues was generally successful.
This included, for example, the instigation of a novel initial screening system in-
volving joint teams of UK and US military legal and operational officers to process
large numbers of prisoners where the delay to conduct Article 5 tribunals12 in every
case was unnecessary.
231
Issues Arising from Coalition Operations: An Operational Lawyer }s Perspective
Whereas the issues relating to prisoner of war camps were relatively straightfor-
ward, ongoing operations in Iraq and Afghanistan have presented complex coali-
tion legal challenges. Under Article 78 of the Fourth Geneva Convention
occupying powers may intern inhabitants of the occupied territory "for imperative
reasons of security."13 This power has been broadly preserved in the UN Security
Council resolutions that have authorized the ongoing presence of multinational
forces in Iraq since 2004. 14 Indeed, using this power the United Kingdom has held
an average of around 120 internees in the Multi-National Division South East area
of responsibility, including one (Mr. Al Jeddah, a UK citizen captured in Iraq)
since 2004. The United Kingdom's ability to intern has been the subject of legal
challenge in our domestic courts.
Many will be familiar with the position of the United Kingdom in relation to the
death penalty, but cases in the UK domestic courts arising out of incidents in Iraq
have now established that those captured and held by UK forces on operations out-
side armed conflict have rights under the European Convention of Human Rights
(ECHR).15 These include not only the right not to be tortured but also a right to lib-
erty. On this basis, the right to intern was challenged and successfully defended. A
feature of UK operations since 2003 therefore has been the legal examination of the
relationship between international humanitarian law and international human
rights law, particularly in relation to when detainees and internees may be handed
over and to whom. The United Kingdom cannot transfer internees to States who
cannot guarantee that their essential human rights will be upheld. This places de-
mands upon coalition commanders to understand, through their operational legal
advisers, the respective legal responsibilities which apply to all those under their
operational command. Can we guarantee that if internees are transferred to a co-
alition partner they will be released when their internment is no longer necessary
for imperative reasons of security in Iraq or may they still be held while they are of
actual or even potential intelligence value? Concerns about torture and mistreat-
ment may get the headlines, but given the right to liberty present in the ECHR and
other similar regimes, the first-order issue for coalition commanders may be to
identify exactly what legal authority coalition partners and host nations believe
they have to detain and when they consider they are obliged to release.
Private Military Contractors
Although much progress has been made in recent years in addressing the issues dis-
cussed above, there is an elephant in the room that will, I believe, require our care-
ful attention, even in the maritime environment. If they have not done so already,
coalition planners may in the future have to consider not only international
232
Neil Brown
military forces and interagency forces and international interagency forces, but
also the private military contractors who seem determined to expand into roles
which may previously have been considered the preserve of the military.
Concluding Comments
I believe that coalition operations can work, and can work well. I witnessed a US-
instigated coalition ROE response to a successful suicide vessel-borne improvised
explosive device attack on a boarding party in the northern Arabian Gulf that took
hours, not days or weeks, to plan and implement. This was possible because the op-
erational legal advisers to the maritime commanders in the region as a matter of
course had continually identified, minimized and managed their respective coali-
tion positions. There will continue to be difficulties, but perhaps militaries and
military lawyers have begun to understand better how to deal with them. If they
have, all military commanders may begin to view the law as it applies across coali-
tions less as a constraint and more as an enabler.
Notes
1. During the Bosnian war of the 1990s, in response to the ethnic-cleansing campaign of
Serb forces in eastern Bosnia, to protect Bosnian civilians who were the victims of the campaign
the UN Security Council established a "safe area" in which Srebrenica and the surrounding area
were to be free from any armed attack or other hostile act. S.C. Res. 819, U.N. Doc S/RES/819
(Apr. 16, 1993), available at http://daccessdds.un.org/doc/UNDOC/GEN/N93/221/90/IMG/
N9322190.pdf?OpenElement. A Dutch contingent of the United Nations Protection Force was
detailed to keep the peace at Srebrenica, where large numbers of civilians had taken refuge. By
July 1995 the humanitarian situation in Srebrenica was dire. Then on July 9 Serbian forces en-
tered the "safe area" and over the next 10-14 days conducted what became known as the
"Srebrenica massacre," with the number of deaths estimated at eight thousand. A Dutch inquiry
into the event concluded that the lightly armed Dutch force passively watched the Serbs separate
the men and boys from the women and girls and load them on busses for transport to locations
where they were executed. For a detailed discussion of the events at Srebrenica, see Srebrenica
massacre, Wikipedia, http://en.wikipedia.org/wiki/Srebrenica_massacre (last visited Mar. 17,
2008).
2. Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of
Anti-Personnel Mines and on their Destruction, Sept. 18, 1997, 2056 U.N.T.S. 211, reprinted in
DOCUMENTS ON THE LAWS OF WAR 648 (Adam Roberts & Richard Guelff eds., 3d ed. 2000).
3. Id., art. 1.
4. Id.
5. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of International Armed Conflicts, June 8, 1977, 1 125 U.N.T.S. 3, reprinted
in DOCUMENTS ON THE LAWS OF WAR, supra note 2, at 422.
6. Id., arts. 52.2, 57.
233
Issues Arising from Coalition Operations: An Operational Lawyer's Perspective
7. S.C. Res. 665, U.N. Doc. S/RES/665 (Aug. 25, 1990), available at http://daccessdds
.un.org/doc/RESOLUTION/GEN/NR0/575/ 15/IMG/NR057515.pdf?OpenElement.
8. S.C. Res. 661, U.N. Doc. S/RES/661 (Aug. 6, 1990), available at http://
daccessdds.un.org/doc/RESOLUTION/GEN/NR0/575/ll/IMG/NR05751 l.pdftOpenElement.
9. United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 3.
10. US Navy, US Marine Corps & US Coast Guard, The Commander's Handbook on the
Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7A para. 3.1 1.2.5.2
(2007). For a discussion of the master's authority to consent to boardings, see Sandra
Hodgkinson et al., Challenges to Maritime Interception Operations in the War on Terror: Bridging
the Gap, 23 AMERICAN UNIVERSITY INTERNATIONAL LAW REVIEW 583, 591-606 (2007).
11. Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6U.S.T. 3316,
75 U.N.T.S. 135, reprinted in DOCUMENTS ON THE LAWS OF WAR, supra note 2, at 244.
12. Id. ,
13. Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949,
6 U.S.T. 3516, 75 U.N.T.S. 287, reprinted in DOCUMENTS ON THE LAWS OF WAR, supra note 2, at
301.
14. See, e.g., S.C. Res. 1546, U.N. Doc. S/RES/1546 (June 8, 2004), available at http://
daccessdds.un.org/doc/UNDOC/GEN/N04/381/16/PDF/N04381 16.pdf?OpenElement.
15. European Convention for the Protection of Human Rights and Fundamental Freedoms,
Nov. 4, 1950, 213 U.N.T.S. 221. For a discussion of the UK domestic court cases, see David
Turns, The Treatment of Detainees and the "Global War on Terror": Selected Legal Issues, which is
Chapter X in this volume, at 200-207.
234
XII
Coalition Operations: A Compromise or an
Accommodation
Vicki McConachie*
[TJhere is no quandary in the mind of Australia's military leaders when we ex-
amine where we might need to be technologically; we use interoperability with the
United States as a benchmark. However, we must strike a balance that ensures we
remain interoperable with both technically advanced allies and those not as tech-
nically advanced, but no less important, regional and coalition partners. Australia
successfully led the UN effort in East Timor because it had the ability to flex its
command and control systems, technology, tactics, techniques and procedures in
both directions to accommodate coalition partners across a range of technologi-
cal capabilities. We must continue to achieve this balance within a tight budget.
This will challenge our ingenuity and, I suspect at times, our patience!1
Legal interoperability is, in many ways, similar to technological
interoperability; it is required for nations to operate effectively in coalitions.
However, legal interoperability is also in many ways more difficult to achieve.
While it may be relatively easy to persuade those outside the military of the need
for technological interoperability, it is perhaps more difficult to persuade those en-
gaged in international negotiations that military interoperability should take pre-
cedence over other goals a nation might wish to achieve in becoming a signatory to
* Commodore, Royal Australian Navy. The views expressed in this article are those of the author
alone and do not necessarily represent the views of the Australian government, the Australian
Defence Force or the Royal Australian Navy.
Coalition Operations: A Compromise or an Accommodation
a proposed international agreement. This means that military planners, with the
assistance of their lawyers, must find a practical way to accommodate the various
legal needs of their coalition partners while ensuring that operations are not
compromised.
In this article I am going to deal with the issues surrounding coalition opera-
tions. I will begin with a brief overview followed by a discussion of some of the
main constraints, how they are dealt with (both formally and on a practical level)
and what opportunities we gain from accommodating the differences of our coali-
tion partners.
Many of the issues surrounding coalition operations are well settled — or at least
well-furrowed ground. At the heart of these issues is the fact that coalition mem-
bers who come together for a common purpose may not be signatories to the same
conventions and, even if they are, they may not have a common interpretation of
the applicable international law. They may view the nature of the operation as be-
ing different in character, one member characterizing the operation as a police ac-
tion, another as a non-international armed conflict and a third as an international
armed conflict. The coalition partners will certainly have varying obligations under
their domestic laws and may have quite different domestic political imperatives
leading to differing policy guidance. All of this must be accommodated to achieve a
successful mission outcome. It is important to note that if you lose public support
for operations then political resolve may be undermined, leading to disintegration
of a coalition.
On occasion a coalition partner may wish that these differences would have a
simple resolution. What must be remembered, however, is that these are coali-
tions. A coalition is not a group of client States acting subject to a patron's desires.
The coalition has come together, usually pursuant to a UN Security Council reso-
lution, and it is composed of sovereign States who have chosen for various reasons
to act together to pursue interests that may be different, but which will be served by
their presence in the coalition and the actions that they take while members of that
coalition. As noted by Rear Admiral Raydon Gates, Royal Australian Navy:
In coalitions, compatible national interests are and certainly must be present, but
compatible interests are not necessarily common interests. . . . [I]t follows that within
the coalition force we immediately have the potential for a number of different military
objectives, reflecting differing national political objectives.2
Nonetheless a coalition partner may feel that, because of its greater commitment in
terms of manpower and economic contribution and its ostensible responsibility
for the success or otherwise of the mission, it should prevail where there are
236
Vicki McConachie
differences of opinion. However, this is not the international reality. Rather the re-
ality is that all States must reach an accommodation that satisfies their national ob-
ligations and interests.
So does this accommodation lead to a compromise of mission or values for the
State actors? While you could characterize this accommodation as representing the
lowest common denominator,3 that would be quite wrong. In fact, the accommo-
dations should rather be taken as encouraging the partners to look critically at their
rules of engagement and to carefully consider the impact they have on coalition co-
hesion. It is the accommodation of difference that is the essence of equality4 in a co-
alition of sovereign States.
Key Constraints
There are several areas of difference that have affected coalition operations or given
rise to concern between coalition partners over the last decade. These areas include
• Protocol Additional to the Geneva Conventions of 12 August 1949, and
Relating to the Protection of Victims of International Armed Conflicts (Protocol I);5
• Convention on the Prohibition of the Use, Stockpiling, Production and
Transfer of Anti-Personnel Mines and on Their Destruction (Ottawa
Convention);6
• Convention for the Protection of Human Rights and Fundamental
Freedoms (European Convention on Human Rights);7
• National law, including the criminalization of behavior on the battlefield;
• Rome Statute of the International Criminal Court;8 and
• National policy.
Protocol I
A key area of concern in relation to coalition operations has been identified as Pro-
tocol I. While many nations who have engaged in coalition activities with the
United States are parties to Protocol I, the United States has not ratified the Proto-
col. This difference in international obligations of itself creates an issue that must
be reconciled when planning coalition operations.
In planning operations regard may be given to statements by the United States
that it follows the principles underlying Protocol I as part of customary law.9 Osten-
sibly this adds clarity to the obligations that the United States considers binding on
itself. However, the matter is complicated by lack of certainty as to the US position
in relation to which underlying principles of Protocol I form part of customary
237
Coalition Operations: A Compromise or an Accommodation
international law. In particular, before September 1 1 , 200 1 there seemed to be a de-
gree of certainty as to those parts of Protocol I the United States viewed as not
forming part of customary law. This included such matters as
• Its applicability to "wars of national liberation";
• The prohibition on use of enemy emblems and uniforms during military
operations;
• The prohibition on causing widespread, long-term and severe damage to the
environment;
• The definition of combatant;
• The prohibition on the use of mercenaries;
• The prohibition on reprisals;
• The definition of military objective; and
• The protection of dams and dykes.10
Since September 1 1, 2001, however, there is less certainty as to which provisions
the United States views as binding on it as embodying customary international law.
In his article "'England Does Not Love Coalitions' - Does Anything Change?,"
Charles Garraway says:
It is interesting in reading the so-called "Torture Memos," to find the almost complete
lack of reference to Additional Protocol I. It is as if it has been wiped out of the memory
bank. It is no longer even clear whether the United States accepts such key provisions as
Article 75 on Fundamental Guarantees. . . . This lack of legal clarity causes acute
problems for Allies seeking to work alongside the United States.1 *
Both the difference in formal legal obligations occasioned by some coalition
partners' being signatory to Protocol I while others are not and the uncertainty as
to what parts of Protocol I the United States considers as forming part of custom-
ary international law are factors that must be considered in planning for coalition
operations.
Ottawa Convention
The Ottawa Convention on anti-personnel mines is another point of difference be-
tween the United States and many of its coalition partners. While the United States
is not a party to the Ottawa Convention, nations such as Australia, the United
Kingdom, Denmark, japan and the Netherlands, among many others, are parties.
238
Vicki McConachie
Clearly obligations under the Convention must be considered when examining
the contribution a coalition partner may make. In particular, State parties to the
Convention undertake
never under any circumstances:
(a) To use anti-personnel mines;
(b) To develop, produce, otherwise acquire, stockpile, retain or transfer to
anyone, directly or indirectly, anti-personnel mines;
(c) To assist, encourage or induce, in any way, anyone to engage in any activity
prohibited to a State Party under this Convention.
2. Each State Party undertakes to destroy or ensure the destruction of all anti-
personnel mines in accordance with the provisions of this Convention.12
In practical terms for coalition operations, the greatest constraint of the Ottawa
Convention is the prohibition on assisting, encouraging and inducing activity that
is prohibited under the Convention. This may include such conduct as transport-
ing personnel who have anti-personnel mines in their possession, or refueling air-
craft or ships carrying anti-personnel mines.
The European Convention on Human Rights
Likewise the European Convention on Human Rights can impact upon a mem-
ber's ability to undertake certain operations. For example, the European Conven-
tion influenced British reluctance to use lethal force to defend property in Iraq and
also underpinned its lack of support for the use of the death penalty by Iraqi courts
during the occupation period.13
Domestic Law
Beyond a nation's international obligations is its domestic law. The actions that a
nation is prepared to take in a particular conflict or peacekeeping situation are not
merely an expression of a nation's international obligations. They also reflect do-
mestic law and policy considerations. These matters concerning domestic law are
not always apparent to coalition partners and unless discussed can be a source of
uncertainty.
The uncertainty can be heightened by complicating factors such as how the par-
ticular coalition partner views the character of the operation. The impact of do-
mestic law may vary depending on whether the operation is characterized as
international armed conflict, non-international armed conflict or policing.
239
Coalition Operations: A Compromise or an Accommodation
An example of the impact of domestic law on operations is given by Captain
M.H. McDougall, in her article "Coalition Operations and the Law."14 In examin-
ing the issues surrounding the transfer of detainees between coalition partners, she
notes that issues of domestic law require consideration — in particular, Section 7 of
the Canadian Charter of Rights and Freedoms, which may prohibit the transfer of
detainees to coalition partners where they may be potentially subject to the death
penalty.15
Criminal Offenses
Another influence on interoperability is the criminalization of behavior on the bat-
tlefield. For example, Australia, as a party to the Rome Statute, has introduced into
domestic law a number of offenses to reflect its obligations.16 These, of course, have
extraterritorial application.
Beyond the offenses introduced as a result of the Rome Statute, there is a contin-
uing trend in Australia to make criminal offenses and regulatory regimes17 extra-
territorial in their jurisdiction. For example, the Criminal Code Act 1995 makes it
an offense in certain circumstances to cause the death of an Australian citizen or
resident overseas.18 While the defense of lawful authority19 is likely to apply, there
remains a risk that Australian personnel may be charged when an Australian citi-
zen or resident is killed during operations.
This increase in offenses with extraterritorial jurisdiction means that com-
manders must increasingly consider whether operations potentially give rise to an
offense being committed by themselves or their personnel. These offenses could be
criminal in nature or aimed at such matters as environmental protection and occu-
pational health and safety.
Damages
Apart from the criminal law, commanders are increasingly concerned about their
possible responsibility for civil law claims arising from operations. Indeed in
March 2008, an Iraqi family commenced an action for damages in the Queensland
Supreme Court in Australia as a result of an incident in Baghdad in early 2005. The
family, who was brought to Australia by the Australian government for medical
treatment, alleges that it was fired upon without warning. While in this instance
the family is suing the Australian government,20 the case raises questions about the
personal liability of soldiers who harm civilians during operations.21
National Policy
Beyond the law, however, is national policy. This should not be discounted because
it is essentially the expression of the democratic will. There will always be matters
240
Vicki McConachie
that — while lawful — are unpalatable and government direction to the military will
be given to express the will of the people. National policy may or may not be visible
to coalition partners and therefore may add further ambiguity to the coalition
relationship.
How Do We Deal with the Constraints?
All of these matters — uncertainty over the US view of the principles underlying
Protocol I, the Ottawa Convention, the characterization of an operation, domestic
law and policy — may contribute to uncertainty as to what action a coalition part-
ner may take. While this lack of legal clarity is a matter that must be addressed in
the planning of and participation in coalition operations, it is not fatal to effective
coalition partnerships. The evidence of this is the fact that coalition operations
have taken place in a number of theaters since September 11, 2001. In spite of the
differences, effective legal interoperability is very common.22 Accommodation of
differences is made to facilitate operations.
The question then is what are the mechanisms that allow this to be achieved?
Captain Dale Stephens, Royal Australian Navy, notes that legal interoperability has
been achieved through a number of means, namely, by reservations or declarations
to treaties and extensive consultation and sharing of military law manuals, as well
as a psychological will to coalition mission accomplishment and the development
of multilateral rules of engagement for operations.23
Declarations
At the formal level, one mechanism used by nations to manage their varying treaty
obligations is that of declarations.
Protocol I
In relation to Protocol I, declarations have been used to clarify coalition partners'
obligations. For example, Australia has made a declaration that includes clarifica-
tion as to the Australian understanding regarding the definition of "military ad-
vantage."24 The effect of this declaration is that, while Australia is a party to
Protocol I and the United States is not, it is still possible that the approaches of the
two countries to issues such as targeting can be harmonized. However, while decla-
rations have made it easier to manage conflicting approaches between the United
States and Australia, it is clear that there are still differences — albeit the precise na-
ture of these differences has been made more difficult to discern in relation to Pro-
tocol I in the post-September 11, 2001 environment.
241
Coalition Operations: A Compromise or an Accommodation
O tta wa Co n ven tio n
In relation to the Ottawa Convention, Australia has again used a declaration of un-
derstanding. Among other matters, this declaration clarifies that operating with
the armed forces of States which are not party to the Convention and that engage in
activity prohibited under the Convention is not, by itself, a violation of the Con-
vention.25 The effect of the declaration is that Australia can act with States that are
not party to the Convention in a coalition, provided that Australia does not assist,
encourage or induce those parties to act contrary to the Convention. Thus, to en-
sure compliance, a party to the Ottawa Convention must be mindful in operational
planning of what support is requested by the forces of a State that is not a party to
the Convention and which possesses anti-personnel mines.
Domestic Law and Policy
Rules of engagement for members of a coalition can be different as a result of each
partner's own domestic laws and policy.26 In the area of domestic law and policy we
must be mindful of our coalition partners' obligations to comply with their domes-
tic laws. To ask them to do otherwise would be to undermine the rule of law and to
fail to respect their sovereignty. As Charles Garraway said, to demand allies act out-
side the law that binds them "would make a mockery of the rule of law."27 What we
can do is to use open dialogue to better understand and accommodate issues of dif-
ference and respect our coalition partners when they decline a mission because of
domestic considerations.
General
All of these differences maybe encapsulated in coalition partners' rules of engagement.
As Captain Dale Stephens said in his article "Coalition Warfare: Challenges and Op-
portunities," however, effective interoperability "[i]n the modern context of 'coali-
tions of the willing' . . . means achieving a harmonization of rules of engagement "28
To achieve interoperability at the working officer level requires critical exami-
nation of where the common approach may lie — although it should be noted that
it is difficult to frame rules of engagement in circumstances where government
policy as to the existing law is either unarticulated or has been the subject of
changes. So how are these accommodations made at a practical level?
Practical Examples of Accommodation of Difference
Timor Leste
There are a number of practical examples of the accommodation of difference pro-
moting effective coalition operations. An example of such a challenge, which has
242
Vicki McConachie
received previous examination by Colonel Mike Kelly in his article "Legal Factors
in Military Planning for Coalition Warfare and Military Interoperability,"29 is op-
erations in Timor Leste in 1999. As leader of the International Force East Timor
mission, Australia was in the position of needing to forge a coalition to conduct
stabilization and pacification operations in Timor Leste following militia violence
that broke out after the vote for independence. Australian planners confronted the
issue of aligning mission rules of engagement to accommodate all of the participat-
ing coalition States.
In this operation the mission rules of engagement formed the basis for opera-
tions. These rules of engagement were more expansive than some participating na-
tion's own rules of engagement. The more expansive aspects of the mission rules of
engagement included provision for the use of up to and including lethal force to
protect specifically designated property considered essential to the success of the
mission.30
This protection of mission-essential property was one of the more contentious
aspects of the rules of engagement. A key issue was that the United Kingdom, New
Zealand and Canada viewed this as only being acceptable where a direct association
with the protection of life could be established.31 Some Australian uniformed law-
yers took an expansive view of the use of lethal force to protect property.32 How-
ever, in a non-armed conflict, it is unlikely that Australian domestic law would
permit the use of lethal force to protect property alone. Arguably property on
which human life is dependent could be protected by the use of lethal force. Ulti-
mately mission assignment had to accommodate this difference in views on the
protection of property.
Likewise in the subsequent UN mission in Timor Leste, UN rules of engage-
ment were issued. This highlighted the differences between UN rules of engage-
ment and national rules of engagement. These differences presented a challenge
that required a strategy to accommodate them. Coalition partners were canvassed
as to their rules of engagement compliance. As expected, some coalition partners'
national rules of engagement were more restrictive than the UN rules of engage-
ment and they were restricted by their rules of engagement from undertaking cer-
tain tasks.33 In planning particular operations account was taken of this and
ultimately the mission was not detrimentally affected by this approach. In the end,
differences must be accommodated for a coalition to function effectively, thus en-
suring appropriate recognition of the equality of States participating in a coalition.
Targeting
While not the only area of difference, a clear area where legal differences arise on
operations is targeting. This is also an area where accommodation has been made
243
Coalition Operations: A Compromise or an Accommodation
on a number of occasions. The first time that the issue of legal planning factors im-
pacting on interoperability was significant was in Operation Allied Force in 1999 in
Kosovo.34 According to Colonel Kelly:
The United States conducted some 80 per cent of the air strikes against the Serbs and
the Americans increasingly chafed at the legal restrictions that other members
considered applicable under Protocol I. The situation was compounded by the fact that
NATO had no mechanism designed to enforce common legal standards.
As a result, NATO policy permitted member states to refuse bombing assignments if
they regarded a particular target as being illegitimate In practice, however, most of
the Serbian targets that were rejected . . . were subsequently attacked by the
Americans.35
This policy by the United States led to friction in the coalition and ultimately to an
understanding that when you are trying to maintain cohesion in a coalition it is es-
sential that the obligations and limitations of each member nation are well under-
stood.36 To fail to understand and ultimately to respect and accommodate the
restrictions that other nations place upon themselves in coalition operations is to
risk the coalition. As Dale Stephens stated in his article "Coalition Warfare: Chal-
lenges and Opportunities":
Just because the United States retains the full legal capacity to attack the types of objects
prohibited by the Protocol to others does not mean that it will necessarily undertake
such attacks. Policy imperatives regarding coalition cohesion plainly inform decisions
concerning attack profiles.37
Iraq 2003
An example of restraint arose in Iraq in 2003. By the time of the operations in Iraq,
there was a greater understanding of the need to accommodate coalition sensitivi-
ties. This operation represented the first time for Australia that aircraft would de-
liver ordnance under the changed legal environment generated by the 1977
Protocol I.38 Again referring to Colonel Kelly's examination of coalition opera-
tions, "The American targeting system was shaped by precautions that related to
the lawfulness of striking individual targets and by a general need to minimise ca-
sualties and damage to vital installations."39
Targeting in this operation involved a tiered system based on levels of authority
required for approvals related, among other factors, to the anticipated number of
civilian casualties and collateral damage.40 While Australia used this system, the
considerations for Australia took account of differences between itself and those
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Vicki McConachie
coalition partners not party to Protocol I. In targeting decision-making Australia
operated according to national rules of engagement.
To assist Australian commanders planning operations to understand the legal
obligations of other coalition partners, two matrices were developed — one for law
of armed conflict and one for rules of engagement, noting that the rules of engage-
ment were more prone to change. The law of armed conflict matrix, for example,
listed issues such as anti-personnel mines and definition of combatant against each
coalition partner and the known international obligations of each. The rules of en-
gagement matrix followed a similar form and greatly assisted in reducing the areas
of apparent difference highlighted by the law of armed conflict matrix.41
Where there were differences, they were accommodated by the "Red Card" sys-
tem which allowed a mission to be declined.42 Even in circumstances where a mis-
sion was allocated and agreed, Australian pilots undertaking that mission were
given the ultimate discretion not to strike a target which they assessed as not being
a lawful target. This ultimate "Red Card" discretion was used and supported by se-
nior Australian personnel.
Ottawa
As previously mentioned, in practical terms for coalition operations the greatest
constraint of the Ottawa Convention has been the prohibition on assisting, en-
couraging and inducing activity that is prohibited under the Convention. This pro-
hibition meant that air-refueling aircraft in Iraq in 2003 were ordered not to refuel
any US airframe that was fitted with air-delivered anti-personnel mines, such as
the scatterable, mixed-munitions GATORS system.43 Clearly the operation of such
a prohibition would need to be carefully considered and may not be absolute in all
circumstances. An exception to the rule may be where the safety of the coalition
aircraft needing to be refueled is at risk.
Another practical example of an accommodation to ensure compliance with the
Ottawa Convention while supporting coalition operations with a non-party was
the transport by coalition partners of US personnel. To ensure compliance, com-
manding officers of ships transporting US personnel took measures to satisfy them-
selves that those personnel were not carrying anti-personnel land mines. Provided
this condition was met, personnel could be transported.
Opportunities
While these practical examples may seem to be constraining operations, they in-
dicate an accommodation of the restrictions that coalition partners may have dur-
ing operations. This accommodation of difference also leads to a greater
245
Coalition Operations: A Compromise or an Accommodation
contemplation of the value of any target or objective as against its cost to the overall
coalition operation.
It would be wrong, however, to think that coalition operations are necessarily
limiting. As Rear Admiral Gates said:
I would not want to leave you with the impression that political divergence always
offers problems, in fact it often offers opportunities. It may be possible for a coalition
commander to use the forces of another nation to undertake a task with more freedom
of maneuver than would be available to their own forces. For example, I experienced
this in the Red Sea in 1992/93 where Australian ROE give our units greater freedom of
action, in certain areas, when conducting maritime interception operations with
coalition partners. This was an advantage to the US commander, who subsequently
employed RAN units closest to the Straits of Tiran at the mouth of the Gulf of Aqaba to
intercept "inspection runners" when required.44
In employing these innovative solutions, commanders have, of course, to be
mindful of their individual legal responsibility for actions that they have been directed
to take.
This accommodation of the differing obligations of coalition member States,
like technical interoperability, forces an assessment of how best a State can contrib-
ute to coalition operations. Rather than asking what a State cannot do, the question
is what it can do; where can it make the best contribution to the coalition and what
does it need to achieve mission accomplishment within the restrictions placed
upon it? Ultimately, making these accommodations, whether they seem to be re-
strictive or empowering, reinforces the equality of sovereign States necessary in an
effective coalition partnership.
Conclusion
Legal interoperability in coalition planning and operations, like technical
interoperability, is essential for mission achievement. As with technical
interoperability, while we can aim for the perfect solution, diverging national in-
terests will mean that there will continue to be differences among coalition part-
ners that must be accommodated to ensure effective operations.
This accommodation should not be viewed as being detrimental; rather it has a
positive effect on the conduct of operations. The process of dealing with differing
coalition views on the applicable law and policy generates a greater level of self-
awareness and critical examination that improves the way we conduct operations
and aids adherence to the norms of international law. By and large it is important
to people who are in the military of a democratic State that they act honorably. It is
246
Vicki McConachie
also critically important for the maintenance of public support of the operation
that they be seen to act honorably. To fail to understand and ultimately respect the
constraints that other nations place upon themselves in coalition operations is to
fail to treat them as equal coalition partners and to risk profoundly the efficacy of
the very coalition.
Notes
1 . Raydon Gates, Toward 201 5, Challenges for a Medium Navy: An Australian Perspective, in
The Law of War in the 2 1st Century: Weaponry and the Use of Force 259, 263 (An-
thony M. Helm ed., 2006) (Vol. 82, US Naval War College International Law Studies).
2. Id. at 260.
3. Michael Kelly, Legal Factors in Military Planning for Coalition Warfare and Military
Interoperability: Some Implications for the Australian Defence Force, AUSTRALIAN ARMY JOUR-
NAL, Autumn 2005, at 161, 168.
4. Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority
RIGHTS 192 (1995).
5. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of International Armed Conflicts, June 8, 1977, 1 125 U.N.T.S. 3, reprinted
in DOCUMENTS ON THE LAWS OF WAR 422 (Adam Roberts & Richard Guelff eds., 3d ed. 2000).
6. Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of
Anti-Personnel Mines and on Their Destruction, Sept. 18, 1997, 36 INTERNATIONAL LEGAL MA-
TERIALS 1507, reprinted in id. at 648 [hereinafter Ottawa Convention],
7. European Convention for the Protection of Human Rights and Fundamental Freedoms,
Nov. 4, 1950, C.E.T.S. No. 5.
8. Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S. 3.
9. Charles Dunlap, Legal Issues in Coalition Warfare: A US Perspective, in THE LAW OF WAR
IN THE 2 1ST CENTURY: WEAPONRY AND THE USE OF FORCE, supra note 1, at 221, 223.
10. Kelly, supra note 3, at 167.
1 1 . Charles Garraway, "England Does Not Love Coalitions" - Does Anything Change?, in THE
Law of War in the 2 1st Century: Weaponry and the Use of Force, supra note l, at 233,
238.
12. Ottawa Convention, supra note 6, art. 1.
13. Kelly, supra note 3, at 166.
14. M.H. MacDougall, Coalition Operations and the Law, in ISSUES IN INTERNATIONAL LAW
AND MILITARY OPERATIONS 195 (Richard B. Jaques ed., 2006) (Vol. 80, US Naval War College
International Law Studies).
15. Mat 201-202.
16. Criminal Code Act, 1995 (Austl).
17. See, e.g., Section 5 of Environment Protection and Biodiversity Conservation Act 1999
(Cth), which applies the provisions of the Act to Australian citizens and residents outside Austra-
lia.
18. Sec. 1 15.1 Murder of an Australian citizen or a resident of Australia
( 1 ) A person is guilty of an offence if:
(a) the person engages in conduct outside Australia; and
(b) the conduct causes the death of another person; and
247
Coalition Operations: A Compromise or an Accommodation
(c) the other person is an Australian citizen or a resident of Australia; and
(d) the first-mentioned person intends to cause, or is reckless as to causing, the
death of the Australian citizen or resident of Australia or any other person by
the conduct.
Penalty: Imprisonment for life.
(2) Absolute liability applies to paragraph ( 1 )(c).
Sec. 1 15.2 Manslaughter of an Australian citizen or a resident of Australia
( 1 ) A person is guilty of an offence if:
(a) the person engages in conduct outside Australia; and
(b) the conduct causes the death of another person; and
(c) the other person is an Australian citizen or a resident of Australia; and
(d) the first-mentioned person intends that the conduct will cause serious
harm, or is reckless as to a risk that the conduct will cause serious harm, to the
Australian citizen or resident of Australia or any other person.
Penalty: Imprisonment for 25 years.
Criminal Code Act, supra note 16.
19. "A person is not criminally responsible for an offence if the conduct constituting the of-
fence is justified or excused by or under a law.'7d., sec. 10.5.
20. If individual military members were to be named as respondents to a damages action, the
Commonwealth of Australia may have vicarious liability for their actions.
2 1 . Rory Callinan, Counting the Cost, TlME.COM, Mar. 5, 2008, http://www.time.com/time/
world/article/0,8599, 1 7 1 9622,00.html.
22. Dale G. Stephens, Coalition Warfare: Challenges and Opportunities, in THE LAW OF WAR
IN THE 2 1ST CENTURY: WEAPONRY AND THE USE OF FORCE, supra note 1, at 245, 247.
23. Id.
24. In relation to paragraph 5(b) of Article 51 and to paragraph 2(a)(iii) of Article 57, it
is the understanding of Australia that references to the "military advantage" are
intended to mean the advantage anticipated from the military attack considered as a
whole and not only from isolated or particular parts of that attack and that the term
"military advantage" involves a variety of considerations including the security of
attacking forces. It is further the understanding of Australia that the term "concrete
and direct military advantage anticipated," used in Articles 5 1 and 57, means a bona
fide expectation that the attack will make a relevant and proportional contribution
to the objective of the military attack involved. It is the understanding of Australia
that the first sentence of paragraph 2 of Article 52 is not intended to, nor does it,
deal with the question of incidental or collateral damage resulting from an attack
directed against a military objective.
Available at http://www.austlii.edu.au/au/other/dfat/treaties/ 1 99 1 /29.html.
25. Text of declaration available at http://www.austlii.edu.au/au/other/dfat/treaties/1999/
3.html.
26. Dunlap, supra note 9, at 224.
27. Garraway, supra note 1 1, at 235.
28. Stephens, supra note 22, at 245.
29. Kelly, supra note 3, at 161.
30. Id. at 164.
31. Id.
248
Vicki McConachie
32. Id.
33. Comments to author by Captain Dale G. Stephens, RAN.
34. Kelly, supra note 3, at 162.
35. Id. at 163.
36. Id.
37. Stephens, supra note 22, at 250.
38. Kelly, supra note 3, at 164.
39. Id. at 165.
40. Jrf.
41. Statement to author by Wing Commander Ian Henderson.
42. Kelly, supra note 3, at 165.
43. Id.
44. Gates, supra note 1, at 260.
249
XIII
Coalition Operations: A Canadian
Perspective
Kenneth W.Watkin*
In order to put my thoughts in context, I begin by outlining recent Canadian
participation in the international sphere. I want to highlight that Canadian
Forces operations are not limited to "peacekeeping" as is often misunderstood, not
only on the international scene, but also sometimes at home. While Canada chose
not to be involved in the 2003 Iraq operation, it has been a fully committed member —
in terms both of the lives of its soldiers, sailors and airmen, including women, as
well as of "national treasure" — in the coalition and international efforts related to
what the United States, our close neighbor to the south, has termed the "Global
War on Terror" or the "GWOT," and what we call the "Campaign Against Terror-
ism" or the "CAT."1 I suppose this subtle use of different terminology is part of
the reason this volume contains two other articles2 authored by representatives of
nations that have participated in coalition operations with the United States. To-
gether they illustrate the differing national approaches and understandings relat-
ing to participation in a common enterprise.
Regardless of how the conflict is termed, countering Al Qaeda requires a
multidisciplinary and multifaceted approach involving civilian and military intel-
ligence agencies, policing, diplomacy and international engagement, as well as the
* Brigadier General, Canadian Forces. The opinions expressed in this article are solely those of
the author and do not necessarily reflect the views of the government of Canada.
Coalition Operations: A Canadian Perspective
use of military forces. The use of military forces encompasses both domestic and
international operations. In this regard it should be noted that Canada does not
have the equivalent of the US Posse Comitatus Act.3 Canadian military forces — naval,
land and air — can be deployed to provide a wide variety of assistance to law en-
forcement operations, both within Canada and off our shores.4
There has been significant debate about how to characterize the conflicts against
non-State actors, such as Al Qaeda, other terrorist groups and insurgent forces. This
includes categorizing such conflicts as being "not of an international character,"5
"international armed conflicts"6 and "internationalized internal armed conflicts."
From time to time the term "transnational" armed conflict has even crept into aca-
demic literature.7 The Canadian approach has been that at a minimum Common
Article 3 of the 1949 Geneva Conventions8 applies to operations in Afghanistan.
Canada, however, has avoided categorizing the transnational operations of Al
Qaeda, preferring to simply acknowledge that an "armed conflict" is in existence to
which humanitarian law applies regardless of whether operations occur on land, in the
air or on the high seas.9 Remember, however, that the famous Caroline case outlining
the basis for self-defense for States under international law involved the transborder
activities of a non- State actor against Canada.10
Of course "war" is such an emotive term, particularly for international lawyers
who may have viewed the creation of the United Nations Charter as an end of
"war" in any legal sense. In factual terms, "war" very much continues to exist and
the conduct of "warfare" is what engages professional military forces, international
humanitarian law treaties and customary international law. As has been noted by
one Canadian academic institute, 95 percent of contemporary conflicts are "inter-
nal" to States.11 As warfare changes from the industrial age to the information age
and perhaps fourth-generation warfare, contemporary military operations have, as
the British General Sir Rupert Smith has noted, become the conduct of "war
amongst the people."12 This trend away from the traditional idea of warfare being
"international armed conflict" between nation-States is presenting significant
challenges not only for us as military law practitioners, but also for our academic
colleagues and for essential stakeholders such as the International Committee of
the Red Cross (ICRC) and committed human rights non-governmental organiza-
tions. It may be fair to say that the effort in the post-World War II era to restrict the
recourse to war by States (jus ad bellum) means the rich body of conventional and
customary law (jus in hello) technically applies to its fullest extent to a significantly
decreasing type of conflict. I know the ICRC's 2005 Customary International Hu-
manitarian Law study13 has garnered criticism from a variety of sources regarding
its methodology and some of its conclusions.14 Indeed, there are parts of the study
with which I disagree;15 however, it remains a significant and, in many ways, a
252
Kenneth W. Watkin
courageous undertaking at an essential time as operations appear to shift from a fo-
cus on international armed conflict to counterinsurgency. I keep a copy of the
study close to my desk and it is used regularly by Canadian Forces legal officers as
an important resource tool.
Since October 24, 2001 when Canada acted "in the exercise of the inherent right
of individual and collective self defence in accordance with Article 51" of the
United Nations Charter in response to the armed attacks on the United States,
Canada has been a steadfast participant in conducting military operations against
the threats posed by Al Qaeda and the Taliban.16 With our joint enterprise in the
North American Aerospace Defense Command, Canada and the United States
have worked in an integrated fashion to protect the skies over North America.
Canadian participation has seen the deployment of a significant portion of our
navy to the US Central Command's maritime area of responsibility, including as
part of US Navy carrier strike groups and maritime patrol aircraft operations in
the Persian Gulf. We have also provided tactical airlift, infantry, special forces
and other units to coalition and International Security Assistance Force opera-
tions since the beginning of operations in Afghanistan, including the participa-
tion of an infantry battle group in Operation Anaconda in 2002. Canada
presently has approximately 2,300 personnel operating in Regional Command
(South) centered on Kandahar. These include an infantry battle group, combat
engineers, artillery, Leopard tanks, armored reconnaissance, an unmanned aerial
vehicle unit and operational mentor liaison teams working with the Afghanistan
army. A Canadian legal officer was deployed to work with our American col-
leagues in the Combined Security Transition Command- Afghanistan mentoring
program in respect to the Afghan justice system. Further, another legal officer
will deploy shortly to the Canadian Operational Mentoring Liaison Team
mentoring the Afghan 205 Corps.
The cost of the mission has been high from a Canadian perspective. Fifty-seven
personnel, including our first female combat casualty (an artillery officer), have
been killed mostly in the last eighteen months. In addition, a Canadian Foreign Af-
fairs officer was killed by an improvised explosive device. Over two hundred per-
sonnel have been wounded. As can be expected, the involvement of Canadian
Forces personnel in Afghanistan has caused considerable political and national de-
bate. For example, the vote in Parliament in May 2006 to extend the mission in Af-
ghanistan until February 2009 was 149 to 145 in favor of the extension.17
The operations in Afghanistan reflect a larger challenge facing all our nations,
that being the changing nature of warfare. The challenges presented by "counterin-
surgency" warfare include, inter alia, the treatment of detainees, the application of
human rights norms, and targeting and resulting limitations on collateral damage.
253
Coalition Operations: A Canadian Perspective
Historically, there are two legal issues that present themselves as "centers of grav-
ity" impacting on the ability of democracies to wage military campaigns against in-
surgent forces. They are the issue of the treatment of detainees — and, more
specifically, the question of torture — and excessive injury and death to civilians
(collateral damage). The present campaign is no exception.
As an officer serving for a country that has signed Additional Protocol I ( AP I),18
you might expect that I would indicate that treaty is a reason for differing ap-
proaches to the conduct of coalition operations with non-party countries such as
the United States; however, it is hard to make that case. Some 85 percent of the
world's States have signed and ratified AP I and many of its provisions are accepted
as either customary international law or as a doctrinal basis for the conduct of op-
erations. In other words, a general acceptance of AP I provisions is a matter of
"fact." The AP I provisions are integrated into the training and doctrine of Cana-
dian Forces personnel and their involvement in non-AP I conflicts is not likely to
fundamentally change the way wars are fought. That is likely the case of other
NATO countries who are AP I countries. The most obvious example of this is the
widespread acceptance of the AP I, Article 57 precautionary measures and the
principle of "proportionality" in respect to targeting.
There are different legal obligations and interpretations of the law for Canadian
personnel than for American forces. An example is the 1997 Ottawa Convention
on anti-personnel mines.19 That Convention clearly prohibits the use, develop-
ment, production, stockpiling, retention or transfer of anti-personnel mines, as
well as assisting, encouraging or inducing such activities. Canadian Forces per-
sonnel have specific direction setting out their obligations when they operate with
nations who are not parties to the Convention. We may not use anti-personnel mines
and cannot request, directly or indirectly, the protection of those mines. However,
Canadian Forces personnel can participate in combined operations with non-
Convention States. There appear to have been no stumbling blocks, likely because
of a general lack of use of such mines in contemporary operations; the relatively
large number of countries, including within NATO, who have ratified the Conven-
tion; and the general awareness by our personnel of their obligations.20
It is simply a fact of coalition operations that nations will often take different ap-
proaches to interpreting the law. For example, my experience has been that European
nations are more directly impacted by the human rights framework associated with
decisions of the European Court of Human Rights than non-European countries,
such as Canada and the United States. Further, from time to time we must deal
with the different way that civil-law-trained and common law lawyers look at a
problem. Again, my experience has been that civil law lawyers will usually ap-
proach a problem first from the context of the treaty law provisions, while common
254
Kenneth W. Watkin
law lawyers read "black letter" law in the context of case law and customary interna-
tional law. Although the approach can be different, we often end up at the same place.
There can also be differences with countries with similar legal systems, although not
as many differences as may be the perceived wisdom. For example, the US interpreta-
tion of "military objective," to the extent that it includes an enemy's "war sustaining
capability," is broader than that of most States, including Canada. However, it should
also be noted that Canada entered a reservation to Additional Protocol I that states,
" [T]he military advantage anticipated from an attack is intended to refer to the advan-
tage anticipated from the attack considered as a whole and not from isolated or partic-
ular parts of the attack." From a Canadian perspective, targets would not be limited to
military forces and could include strategic targets such as rail yards, electric power
grids, oil refineries, lines of communication, bridges and supply routes. To the extent,
however, that the US wording would include attacks on exports that may be the source
of financial resources for a belligerent, it could very well present, as Professor Dinstein
has noted, "a slippery slope" in which every economic activity might be considered as
indirectly sustaining the war effort.21 It is likely in this context during a traditional in-
ternational armed conflict that Canadian and American approaches would differ.22
A greater challenge in contemporary operations is determining the role and desired
effect of the strategic use of airpower. Comparing the 1991 Gulf conflict and the 2003
Iraq invasion, it would appear that a purely "strategic" approach had curried less favor
in the overall planning of the latter campaign.23 It is a more significant issue when one
considers how strategic strikes would realistically impact on a non-State-actor enemy.
A problem with the application of strategic airpower is that in practice it appears not to
have lived up to the hopes of its most ardent proponents. It is even less likely to have a
significant impact during "small wars."
As is noted by James Corum and Wray Johnson, the most effective use of airpower
in opposing insurgents and terrorists conducting a low-level guerrilla war is the use of
"indirect" means such as reconnaissance and transport.24 Issues related to bombing —
even with a tactical focus — can raise more profound and challenging questions:
In much of the world, terrorism is seen as the unique weapon of the poor and fanatic;
airpower is seen as the symbolic weapon of the West — the means by which the wealthy
and advanced countries can bully the poor and weak countries. Thus, bombing is
automatically viewed in the Third World as cruel and heavy-handed. This creates a
paradox that policymakers today do not seem willing to address. While airpower is
often the most effective means to strike at insurgents and terrorists, its use will
immediately provoke outcry and protest in many quarters of Western society and
throughout most of the Third World. In short, there is a political price to pay.25
255
Coalition Operations: A Canadian Perspective
As Corum and Johnson state, "Bombing civilians, or targeting insurgents and terror-
ists in urban areas with resulting civilian casualties, generally works to the propaganda
advantage of the rebels."26
The issue of "collateral damage" is as important in Afghanistan as it is in Iraq. The
Afghan government has increasingly expressed concern over both civilian deaths and
the manner in which searches are conducted.27 NATO itself has recognized the issue of
collateral damage as one of the most important ones it faces28 and Jane's has recently
concluded that continued civilian casualties will increasingly impact on Afghan sup-
port for international forces.29 The question remains as to how members of a coalition
measure collateral damage and ultimately the emphasis that is to be placed on the
"right to life" of uninvolved civilians. This, in turn, raises fundamental questions re-
garding the applicability of human rights norms in the interpretation of international
humanitarian law.
From a legal perspective, resolving the interface between the law governing armed
conflict and human rights law may be the most significant challenge facing operational
lawyers of all our nations. We are trained and schooled in State-on-State conflict and
struggle over issues such as how collateral damage is to be assessed when it results from
the reverberating or "knock on" effects of attacks against electrical grids. In the three-
block wars,30 occupations and other complex security situations of the twenty-first
century, military forces are confronted with fighting dangerous, perfidious and ex-
ceedingly violent armed groups, while at the same time interfacing with a civilian pop-
ulation who may oppose or support the insurgent forces. This raises questions of
whether assessments of collateral damage under these circumstances are impacted by
the human rights/law enforcement notions of "capture rather than kill" and a more
strict assessment of proportionality that demands operations be "planned and con-
ducted in such a way as to avoid or minimise, to the greatest extent possible, any risk to
the lives of the [civilians]."31
While there has been no definitive articulation of the degree to which human rights
law impacts on Canadian Forces international operations, it is clear that the Interna-
tional Court of Justice in the Nuclear Weapons32 and Wall33 cases have determined that
human rights law continues to operate during armed conflict, subject to the applica-
tion of humanitarian law as a lex specialis. Further, it is unlikely that the Canadian posi-
tion would ignore Comment No. 3 1 of the United Nations Human Rights Committee,
which, while not binding as a matter of law, would be persuasive.34 That Comment in-
dicates that the International Covenant on Civil and Political Rights (ICCPR)35
would apply in situations where "the rules of international humanitarian law are
applicable. 'Mfl
While the Canadian approach to accepting whether human rights norms can
apply to international operations may be different than that of the United States,
256
Kenneth W. Watkin
the practical effect is likely the same, particularly when the lex specialis of the laws
governing armed conflict is applied. Canada has accepted the application of human
rights-based norms regarding the treatment of detainees reflected in Common Ar-
ticle 3 of the Geneva Conventions and Article 75 of Additional Protocol I (which it-
self reflects the ICCPR norms). This approach would appear to resonate with that
taken by the US Supreme Court in Hamdan.37
More difficult and pressing questions for many of our military forces regarding
the application of human rights norms relate to the extraterritorial reach of domes-
tic courts and what, if any, impact those norms may have on the use of force. Many
Western nations are confronted with litigation regarding the extraterritorial applica-
tion of human rights (or civil rights) to matters relating to armed conflict. This can
occur for a number of reasons, including the complex nature of the campaigns
against terrorism and non-State entities, and the relative weakness of accountabil-
ity frameworks under humanitarian law in comparison to human rights law. The
impact of "globalization" cannot be discounted; we live and fight in a far more in-
terconnected world that is breaking down previous boundaries. This may simply
be one more casualty of the information age.
Domestic courts in the United Kingdom and the European Court of Human
Rights have struggled with this issue. Canada is no exception. Presently, there is lit-
igation in our Federal Court commenced by Amnesty International Canada and a
provincial civil liberties association challenging the transfer of detainees taken in
Afghanistan to Afghan authorities on the basis of a claim that they are subjected to
torture. The application is not only focused on the Afghan treatment of detainees
but also states that "[t]here are also substantial grounds to believe that the United
States of America is engaged in cruel, degrading and inhuman treatment of detain-
ees, including torture, which is contrary to assurances the US has given to other
governments, including Canada."38 The applicants are relying not only on interna-
tional law, but also claim that Canada's domestic Charter of Rights and Freedoms
applies to the transfer of detainees outside of Canada in other countries. I will not
say anything further as the matter is before the courts, but this is yet another indi-
cation of how human rights claims, including domestic law, has the potential to
impact on contemporary operations.
As I have already indicated, the reach and effect of human rights norms are not
limited to the issue of the handling of detainees. This is evidenced in the recent Israeli
Supreme Court, sitting as the High Court of Justice, decision, termed as the Tar-
geted Killing case.39 The Court applied the human rights law principle of preferring
arrest over killing as "the means that should be employed" even when the "target"
is someone taking a direct part in hostilities.40 The position that a civilian cannot be
attacked at such time as he or she is taking part in hostilities "if less harmful means
257
Coalition Operations: A Canadian Perspective
can be employed" is held to be based on "internal law" of the State.41 The rule is
not an absolute as its application is linked to the degree of control exercised by the
military. Further, specific reference is made to the possibility that the option of ar-
rest may not exist at all where "at times it involves a risk so great to the lives of the
soldiers. "4:
The application of this case may be somewhat limited by the specific situation
regarding occupation facing Israeli authorities. Further, it is not clear how it would
be applied in a struggle against organized armed groups in a more traditional con-
flict setting. Perhaps the most interesting aspect of this "blended" approach is that,
notwithstanding the reliance on human rights law, there remains substantial reso-
nance with humanitarian law. For example, it is possible to contemplate a scenario
in a built-up urban area controlled by the security forces where an attempt to neu-
tralize relatively low-level insurgents could lead to a determination that even under
the humanitarian law principle of proportionality (i.e., taking "all feasible precau-
tions in the choice of means and methods of attack with a view to avoiding, and in
any event to minimizing, incidental loss of civilian life, injury to civilians and dam-
age to civilian objects"43) the result would be a decision to capture rather than kill an
opponent.
In the conduct of coalition operations there is the potential for considerable
misunderstanding among the "partners." One such issue that immediately strikes
me is the Canadian approach to the use of force in the defense of property. Put
simply, the use of deadly force to defend property generally is not permitted. This
arose out of the "Somalia Affair," where Canadian troops fired on Somalis who
ran away when discovered attempting to breach the wire to steal property. As I
once explained to one of our soldiers, we do not permit the killing of people for
stealing a watch even if it is right off your arm. However, we have, for operations
short of armed conflict, provided greater authority to use force to protect desig-
nated mission-essential property. In respect to combat operations, the use of force
is largely governed by the laws governing armed conflict, which permit the use of
force to destroy and defend property under appropriate circumstances. Indeed,
our rules of engagement have been quite robust throughout the conduct of opera-
tions since 2001.
Finally, I want to briefly address investigations in a coalition environment. This
is taking up an increasing amount of commander and legal officer time in an oper-
ating environment that demands greater accountability. It has reached the point
where additional training is provided for Canadian legal officers in this area. From
a Canadian perspective this has included "blue-on-blue" engagements. One exam-
ple is the friendly fire incident of April 17, 2002 at Tarnak Farm where a US Air
Force F-16 mistakenly killed four and wounded eight Canadian soldiers. In
258
Kenneth W. Watkin
September 2006 there was a tragic incident in which a US A- 10 Warthog called in
to provide close air support for a Canadian infantry company in Afghanistan killed
one soldier and wounded thirty. There was a further incident at Forward Oper-
ating Base Robinson in Afghanistan where both a US and a Canadian soldier were
killed during a firelight. That case is being investigated as a possible "blue-on-blue"
incident. In each case, the cooperation between US and Canadian authorities has,
from my perspective, been exceptional. The air incidents have involved both joint
US-Canada investigations (Canadian- American copresidents) and Canadian na-
tional inquiries. While the most recent investigations are still being finalized, it is
clear that this cooperative effort has had a positive effect so far on interoperability,
as well as public perception.
In summary, coalition operations present challenges, but none of them to date
have been true "show stoppers." As a general comment, it would appear that one of
the strengths of international law and treaties, such as the Geneva Conventions, is
that they provide a common reference for all participants. As nations committed to
the rule of law, this common understanding, even when impacted by national in-
terpretations, has held all our countries in good stead. It does not mean that there
will be no differences, however; the threats we face are global, which in turn de-
mand international cooperation.
Notes
1. See Kenneth Watkin, Canada/United States Military Interoperability and Humanitarian
Law Issues: Land Mines, Terrorism, Military Objectives and Targeted Killing, 15 DUKE JOURNAL
of Comparative & International Law 281, 291-94 (2005).
2. Neil Brown, Issues Arising from Coalition Operations: An Operational Lawyer's Perspec-
tive, and Vicki McConachie, Coalition Operations: A Compromise or an Accommodation, which
are Chapters XI and XII, respectively, in this volume, at 225 and 235.
3. 18 US Code sec. 1385(2000).
4. The use of the armed forces in support of law enforcement is set out in both statutes, i.e.,
The Emergencies Act, R.S., Ch. 22 (4th Supp. 1985) and the National Defence Act, R.S., Ch. N-5
(1985) and by the exercise of the Crown prerogative, i.e., Canadian Forces Armed Assistance Di-
rections, P.C. 1993-624 (Mar. 30, 1993).
5. See Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2795-96 (2006), available at http://www
.supremecourtus.gov/opinions/05pdf/05-184.pdf, at 66-68.
6. The Public Committee Against Torture in Israel et al. v. The Government of Israel et al.,
HCJ 769/02 (Dec. 13,2006).
7. See Toni Pfanner, Asymmetrical Warfare from the Perspective of Humanitarian Law and
Humanitarian Action, 87 INTERNATIONAL REVIEW OF THE RED CROSS 149, 154-56 (2005);
Gabor Rona, Interesting Times for International Humanitarian Law: Challenges from the "War on
Terror," FLETCHER FORUM OF WORLD AFFAIRS, Summer/Fall 2003, at 55, available at http://
www.icrc.org/Web/eng/siteeng0.nsf/htmlall/5PWELF/$File/Rona_terror.pdf (last visited Apr.
17,2008).
259
Coalition Operations: A Canadian Perspective
8. Convention for the Amelioration of the Condition of the Wounded and Sick in Armed
Forces in the Field art. 3, Aug. 12,1 949, 6 U.S.T. 3114,75 U.N.T.S. 3 1 ; Convention for the Ame-
lioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea
art. 3, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85; Convention Relative to the Treatment of
Prisoners of War art. 3, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 1 35; Convention Relative to the
Protection of Civilian Persons in Time of War art. 3, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S.
287, all reprinted in DOCUMENTS ON THE LAWS OF WAR (Adam Roberts & Richard Guelff eds.,
3d ed. 2000) at 197, 222, 244 and 301, respectively.
9. This does not mean that the law enforcement regime does not apply where appropriate.
For example, in Canada terrorist activity is dealt with under Canadian domestic law. It has
included the arrest of terrorism suspects alleged to be involved in planning a bomb attack that
was "potentially three times more devastating that the Oklahoma City bombing." See Sasha
Nagy, Massive Terror Attack Averted: RCMP, GLOBEANDMAIL.COM, June 3, 2006, http://
www.theglobeandmail.com/servlet/story/RTGAM.20060603.wwarrants0603_3/BNStory/National/
home.
10. See The Avalon Project at Yale Law School, Webster- Ashburton Treaty - The Caroline
Case, http://www.yale.edu/lawweb/avalon/diplomacy/britain/br-1842d.htm (last visited Apr.
17,2008).
1 1 . Human Security Centre, Human Security Report 2005: War and Peace in the
2 1ST CENTURY 23 (2005), available at http://www.humansecurityreport.info/HSR2005_PDF/
Partl.pdf.
12. Rupert Smith, The Utility of Force: The Art of War in the Modern World
(2005). See also THOMAS X. HAMMES, THE SLING AND THE STONE 1-15 (2006) (for a discussion
of the four generations of warfare).
13. Jean-Marie Henckaerts & Louise Doswald-Beck, Customary International
Humanitarian Law xxix (2005).
14. See, e.g., Timothy L.H. McCormack, An Australian Perspective on the ICRC Customary
International Humanitarian Law Study, in THE LAW OF WAR IN THE 2 1ST CENTURY: WEAPONS
AND THE USE OF FORCE 81 (Anthony M. Helm ed., 2006) (Vol. 82, US Naval War College Inter-
national Law Studies); Yoram Dinstein, The ICRC Customary International Humanitarian Law
Study, in id. at 99.
15. See Kenneth Watkin, 21st Century and International Humanitarian Law: Status Quo or
Change?, in INTERNATIONAL LAW AND ARMED CONFLICT: EXPLORING THE FAULTLINES 265
(Michael N. Schmitt and Jelena Pejic eds., 2007).
16. See Kirby Abbott, "Terrorists: Criminals, Combatants or. . . ?" The Question ofCombat-
ancy, in CANADIAN COUNCIL ON INTERNATIONAL LAW, THE MEASURES OF INTERNATIONAL
LAW: EFFECTIVENESS, FAIRNESS AND VALIDITY 366, 372 (2004) (for reference to the Letter to
President of the UN Security Council from the Canadian Ambassador to the UN, October 24,
2001).
17. Canada's Stay in Afghanistan Extended by 2 Years, CBCNEWS.CA, May 17, 2006, http://
www.cbc.ca/story/canada/national/2006/05/ 1 7/afghandebate05 1 72006.html.
18. See Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to
the Protection of Victims of International Armed Conflicts, June 8, 1977, 1 125 U.N.T.S. 3, re-
printed in DOCUMENTS ON THE LAWS OF War, supra note 8, at 422 [hereinafter Additional Pro-
tocol I].
19. Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of
Anti-Personnel Mines and on Their Destruction, Sept. 18, 1997, 36 INTERNATIONAL LEGAL
MATERIA] s 1 507, reprinted in DOCUMENTS ON THE LAWS OF WAR, supra note 8, at 648.
260
Kenneth W. Watkin
20. See Watkin, supra note 1, at 289-90.
2 1 . yoram dlnstein, the conduct of hostilities under the law of international
Armed Conflict 87 (2004).
22. Watkin, supra note 1, at 301-309 (for a discussion of the American and Canadian ap-
proaches toward defining "military objectives").
23. See Rebecca Grant, The Redefinition ofAirpower, 86 AIR FORCE MAGAZINE, Oct. 2003, at
32, available at http://www.afa.org/magazine/oct2003/1003strategic.pdf.
The strategic air campaign of Operation Iraqi Freedom was guided by a philosophy
wholly different from what had come before. It was one of a handful of distinct air
battles being waged by the air component. Its goals came directly from the broad joint
campaign objectives articulated by Rumsfeld and Gen. Tommy R. Franks, commander,
US Central Command. It was not crafted to overturn the regime in a single night or to
send messages. Planners made no attempt to lace together clever patterns of air strikes
in hopes of breaking the "will" of the people or deflating the regime by destroying
categories of "strategic" targets it held most dear.
Id. at 36.
24. James Corum & Wray Johnson, Airpower in Small Wars 427 (2003).
25. Id. at 429-30.
26. Mat 429.
27. See Karzai Anger over Civilian Deaths, BBCNews, May 2, 2007, http://news.bbc.co.uk/
2/hi/south_asia/6615781.stm ("The president told Nato and coalition commanders that the
patience of the Afghan people is wearing thin with the continued killing of innocent civilians," a
statement from his office said. "Civilian deaths and arbitrary decisions to search people's houses
have reached an unacceptable level and Afghans cannot put up with it any longer").
28. See Sarah Holewinski, Fixing the Collateral Damage, INTERNATIONAL HERALD TRIBUNE,
Mar. 7, 2007, at 8, available at http://www.iht.com/articles/2007/03/07/opinion/edholewin.php.
29. See Afghan Support for Coalition Forces Declines, JANE'S, http://www.janes.com/security/
international_security/news/iwr/iwr070507_l_n.shtml.
As NATO and US forces take the offensive to the militants, violence has increased
across the country, and subsequently civilian casualties can also be expected to increase,
despite the best efforts to avoid them. This will increasingly damage support for
, international forces in Afghanistan and further anti-US and anti-NATO
demonstrations can be expected to occur, both locally in Herat and in other population
centres across the country.
Id.
30. See Charles C. Krulak, The Strategic Corporal: Leadership in the Three Block War, MARINE
MAGAZINE, Jan. 1999, at 28, available at http://www.au.af.mil/au/awc/awcgate/usmc/strategic
_corporal.htm ("Three-block wars" consist of three major operations occurring simulta-
neously within an urban environment: humanitarian assistance, peace operations and combat
operations).
31. Ergi v. Turkey, 1998-IV Eur. Ct. H.R. 1751.
32. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226,
para. 25 (July 8).
33. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
Advisory Opinion, 2004 I.C.J. 136, para. 106 (July 9).
34. See Office of the United Nations High Commissioner for Human Rights, General
Comment No. 31 [80], The Nature of the General Legal Obligation Imposed on States Parties to
261
Coalition Operations: A Canadian Perspective
the Covenant para. 10, U.N. Doc. CCPR/C/21/Rev.l/Add.l3 (May 26, 2004), available at
http://\vAv\v.unhchr.ch/tbs/doc.nsf/(Synibol)/CCPR.C21.Rev.l.Add.l3.En?Opendocument [here-
inafter ( ieneral Comment 31] (which indicates State parties, including their "forces constitut-
ing a national contingent of a State Party assigned to an international peace-keeping or
peace-enforcement operation," must respect and ensure the rights laid down in the Interna-
tional Covenant on Civil and Political Rights "to anyone within the power or effective control
of that State Party, even if not situated within the territory of the State Party." Further, that
Covenant "applies situations of armed conflict to which the rules of international humanitar-
ian law are applicable").
35. International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 302,
reprinted in 6 INTERNATIONAL LEGAL MATERIALS 383 (1966).
36. General Comment 31, supra note 34, para. 11.
37. See Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2797 (2006), available at http://
www.supremecourtus.gov/opinions/05pdf/05-184.pdf (A plurality of the Court stated: "Al-
though the United States declined to ratify Protocol I, its objections were not to Article 75
thereof. Indeed, it appears that the Government 'regard[s] the provisions of Article 75 as an ar-
ticulation of safeguards to which all persons in the hands of an enemy are entitled'").
38. Amnesty International Canada and British Columbia Civil Liberties Association v. Chief
of Defence Staff for the Canadian Forces et al., amended Notice of Application T-324-07 4 (Feb.
21,2007).
39. The Public Committee Against Torture in Israel et al. v. The Government of Israel et al.,
HJC 769/02 (Dec. 13,2006).
40. Id., para. 40.
41. Id.
42. Id.
43. Additional Protocol I, supra note 18, art. 57(2)(a).
262
PART VI
2006 LEBANON CONFLICT
XIV
"Change Direction" 2006:
Israeli Operations in Lebanon and the
International Law of Self-Defense
Michael N.Schmitt*
On July 12, 2006, Hezbollah launched Operation True Promise, the ambush
of Israel Defence Force (IDF) soldiers patrolling the border with Lebanon.1
Three Israelis were killed and two captured. Four more died in an IDF tank re-
sponding to the attack, while an eighth perished as Israeli forces attempted to re-
cover the bodies of the tank crew. Meanwhile, Hezbollah rocket attacks against
northern Israeli towns and IDF facilities killed two civilians.
Israel reacted quickly and forcefully with Operation Change Direction. The mil-
itary action included a naval and air blockade of Lebanon, air strikes throughout
the country and, eventually, a major ground incursion into southern Lebanon. As
the IDF acted, Israel's Ambassador to the United Nations transmitted identical let-
ters to the Secretary-General and the Security Council setting forth the legal basis
for the operation.
Israel thus reserves the right to act in accordance with Article 5 1 of the Charter of the
United Nations and exercise its right of self-defense when an armed attack is launched
against a Member of the United Nations. The State of Israel will take appropriate
* Charles H. Stockton Professor of International Law, United States Naval War College.
Israeli Operations in Lebanon (2006) and the Law of Self -Defense
actions to secure the release of the kidnapped soldiers and bring an end to the shelling
that terrorizes our citizens.2
This article explores and assesses the Israeli justification for Operation Change
Direction. Did the law of self-defense provide a basis for the operation? If so, de-
fense against whom — Hezbollah, the State of Lebanon or both? Were the Israeli
actions consistent with the criteria for a lawful defensive action — necessity, pro-
portionality and immediacy? Did Operation Change Direction unlawfully breach
Lebanese territorial integrity?
In order to frame the discussion, it is necessary to distinguish two distinct com-
ponents of the international law governing the use of force. The jus ad helium sets
normative boundaries as to when a State may resort to force as an instrument of its
national policy.3 Its prescriptive architecture is modest, at least in terms of lex
scripta.
Article 2(4) of the UN Charter prohibits the threat or use of force in interna-
tional relations.4 Only two exceptions to the proscription enjoy universal accep-
tance. The first is enforcement action sanctioned by the Security Council pursuant
to Chapter VII of the Charter. By this linear scheme, the Security Council may de-
clare that a particular action or situation represents a "threat to the peace, breach of
the peace, or act of aggression."3 Once the declarative condition precedent has
been met, it may implement non-forceful remedial measures.6 Should such mea-
sures prove "inadequate," or if the Security Council believes they would not suf-
fice, "it may take such action by air, sea, or land forces as may be necessary to
maintain or restore international peace and security."7 The Security Council does so
by authorizing and employing UN-commanded and -controlled forces or by giving a
mandate for enforcement action to either a regional organization or individual
member States organized as an "ad hoc" coalition (or a combination of the two).
Although the Security Council did employ its Chapter VII authority to enhance
the size and mandate of the United Nations Interim Force in Lebanon (UNIFIL) as
part of the August 2006 ceasefire,8 it did not mandate Operation Change Direction,
either in July 2006 or at any previous time. Instead, the legal basis for Operation
Change Direction submitted by Israel lay in the second express exception to the Ar-
ticle 2(4) prohibition — self-defense.
Article 5 1 codifies the right of States to use force defensively: "Nothing in the pres-
ent Charter shall impair the inherent right of individual or collective self-defence if
an armed attack occurs against a Member of the United Nations, until the Security
Council has taken measures necessary to maintain international peace and secu-
rity."9 A State acting in self-defense must immediately so notify the Security
266
Michael N. Schmitt
Council, a requirement epitomized during Operation Change Direction by Israeli
notification on the very day defensive military operations began.10
The jus in hello, by contrast, governs how force may be employed on the battle-
field. It addresses such matters as the persons and objects that may lawfully be tar-
geted, how targeting has to be accomplished, and the protections to which
civilians, civilian objects and those who are hors de combat are entitled.11 All sides to
an armed conflict must comply with the jus in bello; status as an aggressor or a vic-
tim in the jus ad bellum context has no bearing on the requirement.12 This article
does not address the jus in bello.13
The Prelude
A basic grasp of the complex historical predicates to the 2006 conflict in Lebanon is
essential to understanding Operation Change Direction and its normative context.
Southern Lebanon is a predominately Shiite area that has been largely ignored by
the Lebanese government. The absence of a strong governmental presence ren-
dered the area susceptible to exploitation by anti-Israeli groups.
Until its expulsion from Lebanon in 1982, the Palestinian Liberation Organiza-
tion (PLO) used southern Lebanon as a base of operations against Israel.14 In 1978,
a PLO attack on two Israeli busses left thirty-seven dead and scores wounded. The
IDF reacted with Operation Litani, an operation designed to force the PLO and
other Palestinian armed groups from Lebanese territory south of the Litani River.
In response, the Security Council, in Resolutions 425 and 426, called on Israel to
withdraw from Lebanon. It also created UNIFIL to monitor the withdrawal, help
restore international peace and security, and assist Lebanon in establishing effec-
tive authority in the area.15
UNIFIL and the Lebanese government proved impotent in deterring further
Palestinian attacks.16 In 1982, the Abu Nidal Organization's attempted assassina-
tion of the Israeli Ambassador to the United Kingdom precipitated Operation
Peace for Galilee.17 During the controversial invasion of Lebanon, the IDF ousted
Syrian forces from Beirut and expelled the PLO, including its leader Yasser
Arafat.18 Israel established a buffer zone in the southern part of the country, where
the IDF remained for the next eighteen years.
The 1982 invasion radicalized many of southern Lebanon's Shiites. Inspired in
part by the 1979 Iranian Revolution, they created Hezbollah (Party of God).
Trained, armed, financed and logistically supported by Syria and Iran, Hezbollah's
manifesto includes the liberation of Jerusalem, the destruction of Israel and the es-
tablishment of an Islamic State in Lebanon.19
267
Israeli Operations in Lebanon (2006) and the Law of Self -Defense
Since its formation, Hezbollah has repeatedly engaged in international terror-
ism. The catalogue of such acts is long and bloody. It includes the seizure of eigh-
teen US hostages in the 1980s and '90s, the 1983 bombings of the US Embassy and
Marine Barracks in Beirut, a 1984 attack in Spain which killed eighteen US service
members, the 1985 hijacking of TWA flight 847 (during which a US Navy sailor
was murdered), the 1994 bombing of the Israeli Embassy in Buenos Aires, and regu-
lar attacks against targets in Israel with bombs, rockets and surface-to-air missiles.20
Israel twice launched major military operations — Operations Accountability
(1993) and Grapes of Wrath (1996) — in response.21
In May 2000, Israel ended its occupation of southern Lebanon, a move the Secu-
rity Council recognized as compliant with Resolution 425. 22 Syria and Lebanon
protested, maintaining that the ongoing Israeli presence at Shab'a Farms, seized in
1967, violated the Resolution and amounted to continued occupation of Lebanese
territory.23 In any event, Hezbollah quickly filled the security vacuum created in
the wake of the withdrawal and continued to mount attacks against Israeli targets.24
A declaration by Hezbollah's leader, Sheik Hassan Nasrallah, that "if Jews gather in
Israel, it will save us the trouble of going after them worldwide" confirmed the or-
ganization's aims.25
During this period, Israel repeatedly called on Lebanon to establish control over
the south. Likewise, the Security Council regularly stressed the importance of Leb-
anese action.26 The demands fell on deaf ears, in part due to the presence of Syrian
forces in the country.27 Lebanese President Emile Lahoud, a Maronite Christian
who assumed power in 1998, had seemingly decided to tolerate Hezbollah's pres-
ence and activities. In 2004, the National Assembly, acting under Syrian pressure,
amended the Constitution to allow extension of Lahoud's term in office for an ad-
ditional three years.28 The Security Council reacted in September with Resolution
1 559. 29 Jointly sponsored by the United States and France, the resolution called for
a Syrian withdrawal and the disarming of Hezbollah, a requirement previously set
forth in the 1989 Ta'if Accords ending Lebanese civil war.30
The assassination of Rafiq al-Hariri in February 2005 caused the situation to
deteriorate dramatically. Al-Hariri, a Sunni, had served as Prime Minister twice,
having only resigned the previous October. His assassination, which many believed
occurred at the behest of Syria, sparked massive demonstrations. The ensuing po-
litical crisis, labeled the "Cedar Revolution," led to the withdrawal of Syrian mili-
tary forces. At the same time, the United Nations called on the Lebanese
government "to double its efforts to ensure an immediate halt to serious viola-
tions" of the Blue Line, the "border" (line to which the Israelis withdrew in 2000)
between Lebanon and Israel.31
268
Michael N. Schmitt
In May, an anti-Syrian coalition won elections, but fell short of the National As-
sembly seats necessary to unseat Lahoud.32 Hezbollah, together with the Amal
Movement and other partners, took over a quarter of the parliamentary seats; two
of its members were appointed to cabinet posts in Prime Minister Faud Siniora's
government.33 But the postelection political arrangements proved fragile. In De-
cember 2005, the Hezbollah-Amal coalition walked out of the government when
the National Assembly agreed to a joint Lebanese-international tribunal to try
those accused in al-Hariri's death.34 Siniora was forced to make concessions to se-
cure Hezbollah's return. In particular, he agreed never to refer to the organization
as a "militia" and adopted an official position that "the government considers the
resistance a natural and honest expression of the Lebanese people's national rights
to liberate their land and defend their honour against Israeli aggression and
threats."35 By characterizing Hezbollah as a resistance group, Siniora effectively
conceded the "legal fiction" that the Resolution 1559 requirement for militia disar-
mament did not apply to the organization.
Despite this victory, Hezbollah had been weakened by the "Cedar Revolution,"
departure of the Syrians, and Lebanese political in-fighting. It needed to somehow
recapture momentum. Terrorist operations against Israel seemed to present a
promising prospect for doing so. In November 2005, Hezbollah fired mortars and
rockets across the Blue Line against IDF positions and facilities. Its forces also as-
saulted government offices and IDF positions in Ghajar, purportedly in an attempt
to kidnap Israeli soldiers. Other actions against Israel followed.
Hezbollah moved quickly to strengthen its forces and stockpile arms. By mid-
summer of 2006, the organization fielded two to three thousand fighters and thou-
sands of rockets, some of which could reach far into Israel. Moreover, Nasrallah
had proclaimed that he intended to kidnap Israeli soldiers and use them as bargain-
ing chips in a prisoner exchange; 2006 was to be "the year of retrieving prisoners."36
The threat was highly credible, for in October 2000, Hezbollah fighters had crossed
into Israel and kidnapped three soldiers. Hezbollah killed them, using their bodies
as bargaining chips in a 2004 prisoner exchange.37
Sensitive to the ominous situation, Kofi Annan and other UN representatives
repeatedly called on the Lebanese government to move south and exert control over
the border areas.38 Their concerns proved well founded. When Hezbollah mounted
Operation True Promise on July 12, Israel responded with Operation Change Direc-
tion. The subsequent exchanges proved heavy. Hezbollah launched 125 rockets on
July 13, 103 on the following day, and 100 on the fifteenth.39 On July 14, a Hezbollah
rocket struck an Israeli warship, killing two sailors. The incident was especially
noteworthy, for the attack could likely not have been mounted but for radar data
provided to Hezbollah from a Lebanese military radar site.40
269
Israeli Operations in Lebanon (2006) and the Law of Self-Defense
For its part, Israel offered a seventy-two-hour ultimatum for release of the cap-
tives and cessation of the rocket attacks.41 In the meantime, it declared an air and
naval blockade of Lebanon, conducted air strikes, and engaged in limited cross-
border operations designed to foil rocket launches. Many of the initial targets, such
as Rafic Hariri International Airport in Beirut and bridges throughout the country,
were lines of communication.42 Israel hoped to prevent the removal of its kid-
napped soldiers by cutting them. By late July, the IDF was moving into southern
Lebanon; on August 9, it launched ground operations extending well beyond the
border.43 Two days later, the Security Council passed Resolution 1701, in which it
called for "the immediate cessation by Hizbollah of all attacks and the immediate
cessation by Israel of all offensive military operations."44 A ceasefire agreement
soon followed and hostilities ended on August 14. Israeli troops had completely
withdrawn from Lebanon by October.
The Israeli Legal Justification
As noted, Israel, in announcing its readiness to take "appropriate" steps to secure
the release of its soldiers and force a halt to the rocket attacks, justified its military
actions on the basis of self-defense pursuant to Article 5 1 of the UN Charter. Some-
what precipitously, it pointed the finger of blame at not only at Hezbollah, but also
Syria, Iran and Lebanon.
Responsibility for this belligerent act of war lies with the Government of Lebanon,
from whose territory these acts have been launched into Israel. Responsibility also lies
with the Government of the Islamic Republic of Iran and the Syrian Arab Republic,
which support and embrace those who carried out this attack.
These acts pose a grave threat not just to Israel's northern border, but also to the region
and the entire world. The ineptitude and inaction of the Government of Lebanon has
led to a situation in which it has not exercised jurisdiction over its own territory for
many years. The Security Council has addressed this situation time and time again in
its debates and resolutions. Let me remind you also that Israel has repeatedly warned
the international community about this dangerous and potentially volatile situation.
In this vacuum festers the Axis of Terror: Hezbollah and the terrorist States of Iran and
Syria, which have today opened another chapter in their war of terror.
Today's act is a clear declaration of war, and is in blatant violation of the Blue Line,
Security Council Resolutions 425 (1978), 1559 (2004) and 1680 (2006) and all other
relevant resolutions of the United Nations since Israel withdrew from southern
Lebanon in May 2000.45
270
Michael N. Schmitt
In great part, the Israelis attributed Hezbollah's actions to Lebanon on the basis
of its failure to control the south. A special Cabinet communique issued the day of
the Hezbollah attacks noted that "Israel views the sovereign Lebanese Government
as responsible for the action that originated on its soil and for the return of the ab-
ducted soldiers to Israel. Israel demands that the Lebanese Government implement
UN Security Council Resolution 1559."46 Prime Minister Olmert added a second
ground — Hezbollah's participation in the Lebanese government:
This morning's events were not a terrorist attack, but the action of a sovereign state that
attacked Israel .... The Lebanese government, of which Hizbullah is a member, is
trying to undermine regional stability. Lebanon is responsible and Lebanon will bear
the consequences of its actions.47
The extent to which Israel initially focused responsibility on Lebanon was perhaps
best illustrated by IDF Chief of Staff Lieutenant General Dan Halutz's threat to
"turn back the clock in Lebanon by 20 years."48
A November 2006 UN Human Rights Council report also drew a close connec-
tion between Hezbollah and Lebanon. In an analysis of the separate issue of
whether an "armed conflict" between Israel and Lebanon existed,49 the report
noted that
in Lebanon, Hezbollah is a legally recognized political party, whose members are both
nationals and a constituent part of its population. It has duly elected representatives in
the Parliament and is part of the Government. Therefore, it integrates and participates
in the constitutional organs of the State ....
[F]or the public in Lebanon, resistance means Israeli occupation of Lebanese territory.
The effective behavior of Hezbollah in South Lebanon suggests an inferred link
between the Government of Lebanon and Hezbollah in the latter's assumed role over
the years as a resistance movement against Israel's occupation of Lebanese territory
.... Seen from inside Lebanon and in the absence of the regular Lebanese Armed
Forces in South Lebanon, Hezbollah constituted and is an expression of the resistance
{'mukawamaH) for the defence of the territory partly occupied Hezbollah had also
assumed de facto State authority and control in South Lebanon in non-full
implementation of Security Council Resolutions 1159 (2204) and 1680 (2006) . . . .50
A Lebanese Cabinet policy statement of May 2005 had similarly characterized Hez-
bollah as a resistance force. Enhancing the purported relationship was Nasrallah's
leadership not only of Hezbollah's military wing, but also of the political wing that
was participating in government; neither faction advocated a peaceful solution to
the dispute with Israel.
271
Israeli Operations in Lebanon (2006) and the Law of Self -Defense
As Israel saber-rattled, Lebanon quickly denied culpability. In July 13 letters to
the UN Secretary-General and Security Council President, Lebanon claimed that
"the Lebanese Government was not aware of the events that occurred and are oc-
curring on the international Lebanese border" and that "the Lebanese Govern-
ment is not responsible for these events and does not endorse them."51 Two days
later, in an "Address to the People," Prime Minister Siniora again distanced him-
self from the attacks, denying any prior knowledge thereof.52 Secretary-General
Kofi Annan accepted the Lebanese disclaimer.53
Israel quickly backed away from assertions that the July 12 attacks were attrib-
utable to Lebanon, at least in the normative context of self-defense. On the six-
teenth, the Cabinet issued a communique that declared, "Israel is not fighting
Lebanon but the terrorist element there, led by Nasrallah and his cohorts, who
have made Lebanon a hostage and created Syrian and Iranian enclaves of mur-
der."54 Similarly, a Ministry of Foreign Affairs briefing paper prepared shortly be-
fore the conflict ended stated that although Lebanon bore responsibility "for the
present situation, and consequently . . . could not expect to escape the conse-
quences, . . . Israel views Hamas, Hizbullah, Syria and Iran as primary elements in
the Jihad/Terror Axis threatening not only Israel but the entire Western world."55 As
to Lebanon's responsibility, the paper deviated from the attitude adopted at the out-
set of hostilities:
Israel did not attack the government of Lebanon, but rather Hizbullah military assets
within Lebanon. Israel avoided striking at Lebanese military installations, unless these
were used to assist the Hizbullah, as were a number of radar facilities which Israel
destroyed after they helped the terrorists fire a shore-to-ship missile at an Israeli ship.56
In fact, Israel assiduously avoided striking Lebanese government facilities and
equipment, at least absent an express link to Hezbollah. While the Human Rights
Council report referenced earlier cites a number of instances in which the IDF
struck Lebanese military targets, the discussion is marked by the paucity of exam-
ples— a military airfield, radar installations (recall that Lebanese radar facilitated
the anti-ship missile attack of July 14) and a barracks.57 Given the wherewithal of
the Israeli Air Force, the catalogue would undoubtedly have been far lengthier had
Israel wished it to engage Lebanon militarily.
Thus, by war's end, Israel was steering clear of arguments that Hezbollah actions
amounted to a Lebanese "armed attack" within the meaning of Article 5 1 . Whether
correct as a matter of law, tempering comments on the linkage represented sage
policy. First, Israel needed the Lebanese Army to move south to fill the security
void its withdrawal would leave if it hoped to avoid another long occupation of
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Michael N. Schmitt
southern Lebanon. Second, little was to be gained in styling Operation Change
Direction as a response to a Lebanese "armed attack" because Israeli military oper-
ations could more convincingly be legally justified as a direct response to
Hezbollah. Third, conflict between States in the volatile Middle East is always po-
tentially contagious; therefore, for practical reasons, it is usually best to avoid por-
trayal of hostilities as inter-State. Finally, as will also be discussed, the international
community gingerly accepted Israel's need to defend itself against the increasingly
frequent Hezbollah attacks. Limiting the finger-pointing to Hezbollah would fit
better within the prevailing international frame of reference, an important consid-
eration in light of the fact that the international community's assistance would
likely prove helpful in securing the border areas. It would also avoid a direct con-
flict with UN Secretary-General Kofi Annan, who early on adopted the position
that the Lebanese government had no advance notice of the July 12 attacks and
that the Hezbollah actions ran counter to the interests of the Lebanese govern-
ment and people.58
Widespread, albeit cautious, acceptance of the legitimacy of the Israeli defensive
response to Hezbollah emerged. It was certainly apparent in the Security Council
discussions of July 14.59 Similarly, Secretary-General Kofi Annan acknowledged
"Israel's right to defend itself under Article 51 of the United Nations Charter."60 So
too did individual States and their leaders.61 In the Arab world, Saudi Arabia criti-
cized Hezbollah's "uncalculated adventures," a reproach echoed by Jordan, Egypt
and the United Arab Emirates.62 Indeed, Nasrallah complained that such censure
made possible the harsh Israeli reaction.63 Arab support only dissipated in the af-
termath of Israel's July 30 bombing of Qana, during which twenty-eight civilians
died.64 The Group of Eight, which was coincidentally meeting in July, condemned
Hezbollah actions and called on Lebanon to assert its "sovereign authority" over
the south, while the European Union made clear that it considered the right to self-
defense applicable.65 In the United States, both the Senate and House of Represen-
tatives passed resolutions condemning the attacks against Israel.66 Finally, the Se-
curity Council clearly indicated in Resolution 1701 that Hezbollah's attacks of July
12 had precipitated events.67
Such acceptance is an important indicator of the operational code, the unoffi-
cial but actual normative system governing international actions.68 In other words,
when seeking to identify the applicable law, it is essential to ascertain how the rele-
vant international actors, especially States, interpret and apply the lex scripta. Only
then can norms be understood with sufficient granularity to assess an action's legal-
ity. It is to those norms that this analysis turns.
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Israeli Operations in Lebanon (2006) and the Law of Self -Defense
Legal Analysis
Self-defense under Article 5 1 of the UN Charter was the claimed legal basis for Op-
eration Change Direction. In addition to Hezbollah, Israel initially pointed the fin-
ger of blame at Lebanon. This begs the question of whether the attacks and
kidnappings of July 12 can be attributed to Lebanon such that Israel was justified in
characterizing them as an attack by Lebanon itself.
In that Israel's self-defense justification eventually centered on Hezbollah, and
given the international community's seeming acceptance of that position, the issue
of an "armed attack" attributable to Lebanon is not determinative. Nevertheless, a
colorable argument can be fashioned to the effect that Hezbollah's actions were
equally Lebanon's, at least as a matter of law. In particular, Hezbollah's participa-
tion in the Lebanese government and the government's apparent recognition of
the organization as a legitimate resistance group support such a depiction.
Article 8 of the International Law Commission's Articles of State Responsibility
provides that an action carried out "on the instructions of, or under the direction
or control of, the State" amounts to an "act of State."69 Hezbollah's inclusion in the
Lebanese government, considered in light of Nasrallah's control over both the or-
ganization's political and military wings, is relevant in this regard. Yet, there is no
evidence that the Hezbollah parliamentarians or cabinet members directed or were
otherwise involved in the attacks, or that the Lebanese government controlled the
organization, either directly or indirectly. Neither could Hezbollah be fairly char-
acterized as "an organ which has been placed at the disposal of a State by another
State . . . [that exercised] elements of the governmental authority in the absence or
default of the official authorities and in circumstances such as to call for the exer-
cise of those elements of authority" pursuant to Article 9.70 Although Hezbollah re-
ceived significant support from Syria and Iran, those States did not exercise
sufficient control over the organization to meet the Article 9 threshold.
Even when actions qualify as acts of State for responsibility purposes, Article 50
bars the use of forceful countermeasures in response to a breach short of an "armed
attack" under Article 51 (absent a Security Council mandate).71 In other words,
when assessing the Israeli response, the question is when a non-State armed
group's actions can be attributed to a State for self-defense purposes.
It has long been recognized that support for non-State armed groups can
amount to an armed attack by the State supporter.72 The International Court of
Justice (ICJ) has addressed the subject on multiple occasions. In the 1986 Nicara-
gua judgment, it found that a non-State actor's actions could amount to an armed
attack if the group in question was "sent by or on behalf of a State and the opera-
tion, in light of its "scale and effects," "would have been classified as an armed
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Michael N. Schmitt
attack . . . had it been carried out by regular armed forces."73 In support of its posi-
tion, the Court cited Article 3(g) of the General Assembly's 1974 Definition of Ag-
gression (3314 (XXIX)), which was characterized as reflective of customary
international law.74 The ICJ confirmed this "effective control" standard in its 2005
Congo and 2007 Genocide decisions.75
The Nicaragua standard has proven controversial. In 1999, the Appeals Cham-
ber of the International Criminal Tribunal for the former Yugoslavia rejected it in
Tadic. At issue was the existence of an international armed conflict in Bosnia-
Herzegovina by virtue of the Federal Republic of Yugoslavia's relationship with
Bosnian Serb forces. In finding such a conflict, the Chamber adopted a more re-
laxed standard than that articulated by the ICJ. For the Chamber, the key was
"overall control going beyond mere financing and equipping of such forces and in-
volving also participation in the planning and supervision of military opera-
tions."76 Both the effective control and overall control standards would exclude
providing sanctuary or otherwise acquiescing to the presence of terrorists from the
ambit of "armed attack." Since no evidence exists of a substantive Lebanese gov-
ernment link to the July 12 Hezbollah attacks, the relationship between Lebanon
and Hezbollah met neither the Nicaragua "effective" nor the Tadic "overall" con-
trol tests.
In 2005, Judge Kooijmans, in his separate opinion in the Congo case, noted that
the Court had failed to take "a position with regard to the question whether the
threshold set out in the Nicaragua Judgment is still in conformity with contempo-
rary international law in spite of the fact that that threshold has been subject to in-
creasingly severe criticism ever since it was established in 1986."77 He was
perceptive. The ICJ ignored the operational code evident in the international com-
munity's reaction to 2001 coalition attacks against the Taliban (the de facto gov-
ernment of Afghanistan). Taliban support for al Qaeda fell far below the bar set in
either Nicaragua or Tadic. Nevertheless, most States approved of Operation En-
during Freedom, with many offering material support.78 No international organi-
zation or major State condemned the operations. On the contrary, a month after
launch of operations, the Security Council condemned the Taliban "for allowing
Afghanistan to be used as a base for the export of terrorism by the Al-Qaida net-
work and other terrorist groups and for providing safe haven to Usama Bin Laden,
Al-Qaida and others associated with them." Additionally, it expressed support for
"the efforts of the Afghan people to replace the Taliban regime."79
Had the operational code for attributing attacks by non-State actors to States
been relaxed? The precise parameters of any emergent standard remained unclear
because the community reaction to attacks on the Taliban may merely have re-
flected a sense of relief over ouster of international pariahs, rather than a relaxation
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Israeli Operations in Lebanon (2006) and the Law of Self -Defense
of the norms governing the use of force against States tied to terrorism. But if the
bar had been lowered, the new standard could arguably apply to Lebanon. Like the
Taliban, the Lebanese government allowed Hezbollah sanctuary when it failed to
move south, as it had agreed to do in the 1989 Ta'if Accords, and as the United
Nations and Israel had demanded. And with organized armed forces under its con-
trol, Lebanon presumably had more capacity to deny sanctuary to Hezbollah than
did the Taliban vis-a-vis al Qaeda.
Ultimately, attributing the July 12 attacks to Lebanon is problematic. True, the
President had expressed support for Hezbollah, the Cabinet had recognized it as
performing legitimate resistance functions, Hezbollah exercised government func-
tions in the south and the failure of Lebanese forces to take control of the area
could be characterized as providing sanctuary. On the other hand, the organization
was not an organ of government empowered by Lebanese law, there is no evidence
that the Hezbollah cabinet ministers participated in the decision to strike Israel and
kidnap its soldiers, the government did not direct or control the operations, many
Lebanese officials opposed Hezbollah, and the Lebanese government publicly, offi-
cially and quickly distanced itself from the attacks.
Israel correctly grasped that there was a much firmer normative foundation on
which to base Operation Change Direction — self-defense against Hezbollah itself.
Prior to the terrorist strikes of September 11, it might have been plausible to sug-
gest that Article 51 applied only to attacks by State actors.80 Those conducted by
non-State actors lay, so the argument went, in the realm of domestic and interna-
tional criminal law enforcement.81
Article 51, however, contains no reference to whom the offending armed attack
must be mounted by before qualifying for a defensive reaction as a matter of law.
Similarly, Articles 39 and 42 (which together comprise the other exception to the
Article 2(4) prohibition on the use of force) do not limit the source of a threat to
the peace, breach of peace or act of aggression to States.82 Beyond pure textual anal-
ysis, the Security Council has never restricted enforcement actions to those directed
against States; for instance, it has created international tribunals to prosecute indi-
viduals charged with crimes against humanity, war crimes and genocide.83
By contrast, Article 2(4) specifically pertains to the use of force by member
States in their "international relations" (i.e., relations with other States). This sug-
gests that the drafters were sensitive to the textual scope of the articles. From an in-
terpretive standpoint, it would resultantly be incongruous to add a State "attacker"
criterion to the law of self-defense.
A construal of Article 51 which included non-State actor attacks had already
been advanced by some members of the academy prior to the attacks of September
1 1 . For instance, Professor Oscar Schachter argued a decade earlier that
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Michael N. Schmitt
[i]t is clear that terrorist attacks against State officials, police or military units are
attacks on a State wherever they occur. Attacks on private persons and private property
may also be regarded as attacks upon a state when they are intended to intimidate and
strike fear in order to compel that state to act, or refrain from political action.84
Similarly, Professor Yoram Dinstein has long maintained the right of a State to en-
gage in "extraterritorial law enforcement" against attacks by non-State actors.85
Moreover, it must be remembered that the locus classicus of the international
law of self-defense, the nineteenth-century Caroline incident, involved non-State
actors.86 During the 1837 Mackenzie Rebellion in Canada, rebel forces sought ref-
uge in New York state, where they also recruited from among a sympathetic popu-
lation. On December 20, British forces boarded the Caroline, a steamer used for
travel between the United States and rebel bases, while it was docked in Schlosser,
New York. Of the thirty- three crewmembers and others on board, only twelve sur-
vived the onslaught. The attackers set the Caroline ablaze and sent it adrift over
Niagara Falls.
An exchange of diplomatic notes ensued, with the British claiming that self-
defense necessitated the action, particularly in light of the American failure to police
its own territory. In 1841, the incident took a strange turn when New York author-
ities arrested one of the alleged British attackers, a Mr. McLeod, who, while intoxi-
cated, had boasted of participating in the incident. The British demanded
McLeod's release, arguing that he was acting on behalf of the Crown in legitimate
self-defense. The arrest resulted in a further exchange of diplomatic notes between
Secretary of State Daniel Webster and his British counterparts, in particular Lord
Ashburton.87 The contents of those notes, discussed below, became immortalized
as the origin of the modern law of self-defense.88 Thus, self-defense traces its nor-
mative lineage to an attack by a non- State actor.
In any event, it appeared as if the international community's reaction to the 9/11
attacks had settled the issue. The very day after the terrorists struck, when no one
was pointing the finger of blame at any State, the Security Council adopted Resolu-
tion 1368, which acknowledged the inherent right of self-defense in the situation.89
On September 28, the Council reaffirmed 1368 in Resolution 1373.90 NATO and
the Organization of American States activated the collective defense provisions of
their respective treaties (which are expressly based on Article 51),91 and Australia
initiated planning to join the United States in military operations pursuant to the
ANZUS Pact.92 Forty-six nations issued declarations of support, while twenty-
seven granted overflight and landing rights. State practice seemed to be demon-
strating comfort with an operational code extending Article 51 to armed attacks by
non-State actors.
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Israeli Operations in Lebanon (2006) and the Law of Self -Defense
Further evidence of this understanding of the scope of self-defense appeared as
the US-led coalition responded on October 7 with strikes against al Qaeda (and
Taliban ) targets. In its notification to the Security Council that it was acting pursu-
ant to Article 51, the United States confirmed that it considered the article applica-
ble to the terrorist group.93 Subsequent State practice proved supportive. Australia,
Canada, the Czech Republic, Germany, Italy, Japan, the Netherlands, New Zea-
land, Turkey and the United Kingdom provided ground troops.94 Georgia, Oman,
Pakistan, the Philippines, Qatar, Saudi Arabia, Tajikistan, Turkey and Uzbekistan
allowed US military aircraft to transit their airspace and provided facilities to sup-
port operations.95 China, Russia and Arab States such as Egypt expressed accep-
tance of Operation Enduring Freedom.96 The European Union depicted the
military operations as "legitimate under the terms of the United Nations Charter
and of Resolution 1368 of the United Nations Security Council."97 And the Secu-
rity Council adopted repeated resolutions reaffirming the right to self-defense in
the context of the conflict in Afghanistan.98 It is undeniable that post-9/1 1 practice
demonstrated the applicability of Article 51 to attacks by non-State actors.
Or so it seemed. In 2004, the International Court of Justice appeared to ignore
this demonstrable history in its polemical advisory opinion Legal Consequence of
the Construction of a Wall in the Occupied Palestinian Territories." Faced with
claims that self-defense justified construction of the Israeli security fence, the
Court found Article 51 irrelevant because Israel had not averred that the terrorist
attacks the wall was intended to thwart were imputable to a State.100 Judges Hig-
gins, Kooijmans and Buergenthal rejected the majority position, correctly pointing
out the absence in Article 51 of any reference to a State as the originator of an
"armed attack," as well as the Security Council's self-evident characterization of
terrorist attacks as armed attacks in, inter alia, Resolutions 1368 and 1373.101
Despite this telling criticism, in Armed Activities on the Territory of the Congo the
Court again failed to address the issue head on, inquiring only into whether a State,
the Democratic Republic of the Congo, was responsible for the actions of a non-State
actor, the Allied Democratic Forces, such that Uganda could act in self-defense
against Congo.102 In his separate opinion, Judge Kooijmans cogently maintained
the position that a non-State actor could mount an armed attack.
If the activities of armed bands present on a State's territory cannot be attributed to that
State, the victim State is not the object of an armed attack by it. But if the attacks by the
irregulars would, because of their scale and effects, have had to be classified as an armed
attack had they been carried out by regular armed forces, there is nothing in the
language of Article 51 of the Charter that prevents the victim State from exercising its
inherent right of self-defence.103
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Michael N. Schmitt
Judge Simma criticized the Court on the same basis, chastising it for avoiding its re-
sponsibility for clarifying the law in a case directly on point.
Such a restrictive reading of Article 51 might well have reflected the state, or rather the
prevailing interpretation, of the international law on self-defence for a long time.
However, in the light of more recent developments not only in State practice but also
with regard to accompanying opinio juris, it ought urgently to be reconsidered, also by
the Court. As is well known, these developments were triggered by the terrorist attacks
of September 11, in the wake of which claims that Article 51 also covers defensive
measures against terrorist groups have been received far more favourably by the
international community than other extensive re-readings of the relevant Charter
provisions, particularly the "Bush doctrine" justifying the pre-emptive use of force.
Security Council resolutions 1368 (2001) and 1373 (2001) cannot but be read as
affirmations of the view that large-scale attacks by non-State actors can qualify as
"armed attacks" within the meaning of Article 51.104
International reaction to Operation Change Direction demonstrated that the
Court was swimming against the tide of the extant operational code. Although it
might have been arguable that the supportive reaction to defensive strikes against
al Qaeda (as distinct from law enforcement endeavors) was an anomaly deriving
from the horror attendant to the 9/11 attacks, it would be incongruous to analo-
gously dismiss the international community's seeming acceptance of Israel's right
to act defensively against Hezbollah. What the Court failed to acknowledge is that
international law is dynamic, that if it is to survive, it has to reflect the context in
which it is applied, as well as community expectations as to its prescriptive content.
While the negotiating records of the United Nations Charter contain no expla-
nation of the term "armed attack," it would seem logical that hostile actions by
non-State actors must, like those conducted by States, reach a certain level before
qualifying as an "armed attack."105 For instance, in Nicaragua, the International
Court of Justice excluded "mere frontier incidents" from the ambit of "armed at-
tacks."106 Although the exclusion proved controversial,107 plainly the mere fact
that an incident occurs along a border does not disqualify it as an armed attack. As
noted by Sir Gerald Fitzmaurice in 1952 in response to a Soviet request to include
"frontier incidents" in a proposed Definition of Aggression, "What exactly does
this mean? There are frontier incidents and frontier incidents. Some are trivial,
some may be extremely grave."108 Although a frontier incident of sorts,
Hezbollah's actions on July 12 certainly rise to the level of armed attack.109 They
were planned in advance, complex in the sense of including multiple components
(abduction and rocket attacks) and severe (kidnapping, death, destruction of
property).110
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Israeli Operations in Lebanon (2006) and the Law of Self- Defense
Actions in self-defense against armed attacks, whether from a non-State group
such as Hezbollah or a State, are subject to the same core criteria, which trace their
roots to the Caroline case, discussed supra. In one of that incident's diplomatic ex-
changes, Secretary of State Webster argued that
[ujnder these circumstances, and under those immediately connected with the
transaction itself, it will be for Her Majesty's Government to show, upon what state of
facts, and what rules of national law, the destruction of the "Caroline" is to be defended.
It will be for that Government to show a necessity of self-defence, instant,
overwhelming, leaving no choice of means, and no moment for deliberation. It will be
for it to show, also, that the local authorities of Canada — even supposing the necessity
of the moment authorized them to enter the territories of the United States at all — did
nothing unreasonable or excessive; since the act justified by the necessity of self-
defence, must be limited by that necessity, and kept clearly within it.111
The three universally accepted criteria of self-defense appear in the extract: 1) neces-
sity ("necessity of self-defence" and "no choice of means"), 2) proportionality
("nothing unreasonable or excessive"), and 3) immediacy ("instant, overwhelm-
ing" and "leaving ... no moment for deliberation"). These requirements matured
into, and remain, the normative catechism of self-defense.112 The International
Court of Justice recognized the first two as customary international law in Nicara-
gua;113, a decade later it applied them to Article 5 1 self-defense in the advisory opin-
ion Legality of the Threat or Use of Nuclear Weapons.114 The Court has recently
confirmed the criteria in Oil Platforms (2003) 115 and Congo (2005). 116 Immediacy,
the third criterion, is irrelevant when assessing Operation Change Direction be-
cause the Hezbollah attacks predated the Israeli response and continued through-
out the IDF operations.
Conceptually, necessity is a qualitative criterion, whereas proportionality is
quantitative. Reduced to basics, necessity requires the absence of adequate non-
forceful options to deter or defeat the armed attack in question. This does not
mean that non-forceful measures would not contribute to defense of the State.
Rather, necessity requires that "but for" the use of force, they would not suffice.
Necessity analysis is always contextual, for the utility of non-forceful measures
is situation specific. In the case of Operation Change Direction, a key variable was
that Hezbollah — an entity historically resistant to diplomatic, economic and other
non-forceful actions and dedicated to the destruction of Israel — had carried out
the attacks and kidnappings. Additionally, precedent existed that was directly on
point as to the futility of non-forceful measures in circumstances resembling those
precipitating Operation Change Direction. Recall the 2000 kidnapping of IDF
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Michael N. Schmitt
soldiers and the use of their bodies in a prisoner exchange. History seemed to be re-
peating itself.
The most likely alternative to Israeli action was, of course, immediate Lebanese
action to 1 ) control those lines of communication Hezbollah might use to whisk
the captives out of the country, 2) recover the soldiers and 3) extend military con-
trol over the south such that the area could no longer be used as a base of opera-
tions, especially for rocket attacks. However, the necessity criterion does not
require naivete. As noted supra, extension of Lebanese government authority into
the south had been a cornerstone of the Ta'if Accords ending the civil war in 1989.
Further, in Resolutions 1559 (2004) and 1680 (2006), the Security Council had
emphasized the urgency of exerting government control throughout the country
by disarming and disbanding Lebanese and non-Lebanese militias.117 Yet, the Leb-
anese government had done nothing; on the contrary, it appeared that Hezbollah
was growing militarily stronger. By the summer of 2006, it had two to three
thousand regular fighters, with up to ten thousand reserves.118 Hezbollah's arsenal
included not less than twelve thousand rockets. Most were short-range Katyushas,
but the organization also possessed Iranian-supplied Zelzal-2s, with a range of 210
kilometers, sufficient to strike deep into Israel.119 It was evident that action by the
Lebanese government, particularly given its political disarray over the past year,
did not represent a viable alternative to Israeli use of force.
Another possible alternative was deferral to action by the international commu-
nity, much as Israel had done in 1991 when Saddam Hussein launched Scud missile
attacks against Israeli population centers during the "First Gulf War." However,
the situation in 2006 was dramatically different. No friendly forces were engaged
against Hezbollah, as the coalition had been with Iraqi forces, and UNIFIL was pa-
tently impotent. The two States enjoying influence over Hezbollah, Iran and Syria,
offered little promise; the leader of the first had called for the Israel's destruction,120
while the latter was technically at war with Israel.121 Finally, over the years the
United Nations had demonstrated a marked inability to resolve matters in the area,
Security Council politics generally precluded strong Chapter VII action, and previ-
ous UN entreaties to Lebanon and Hezbollah had failed to achieve meaningful re-
sults. In any event, the attacks were under way and nothing in Article 51 (or the
customary law of self-defense) required Israel to yield to any other entity in de-
fending itself. On the contrary, Article 51 expressly allows a State to act defensively
in the face of an armed attack "until the Security Council has taken measures nec-
essary to maintain international peace and security."122 The Security Council had
taken no such step, nor did it purport to have done so. Operation Change Direc-
tion clearly met the necessity criterion of self-defense.
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Israeli Operations in Lebanon (2006) and the Law of Self -Defense
The other relevant self-defense criterion is proportionality. Proportionality
deals with the degree of force permissible in self-defense; it allows the application
of no more force than required, in the attendant circumstances, to deter an antici-
pated attack or defeat one that is under way. In other words, while necessity man-
dates a consideration of alternatives to the use of force, proportionality requires its
calibration.
Proportionality is frequently misapplied in one of two ways. First, the degree of
force employed by the defender is sometimes assessed through comparison to that
used by the aggressor on the basis of a false premise that the former may not exceed
the latter. But proportionality requires no such symmetry between the attacker's
actions and defender's response.123 Operation Change Direction is paradigmatic.
Although the IDF response exceeded the scope and scale of the Hezbollah
kidnappings and rocket attacks manyfold, the only way effectively to have pre-
vented movement of the hostages was to either destroy or control lines of commu-
nication. Further, the best tactic for preventing Hezbollah rocket attacks, especially
from mobile launchers, was through control of the territory from which they were
being launched.
The second common misapplication of the proportionality principle confuses
the jus ad bellum criterion of proportionality, under consideration here, with the
jus in hello principle by the same name. The latter prohibits "an attack which may
be expected to cause incidental loss of civilian life, injury to civilians, damage to
civilian objects, or a combination thereof, which would be excessive in relation to
the concrete and direct military advantage anticipated."124 It considers the conse-
quences of individual or related operations, not the scope of a response to an
armed attack.125 Proportionality in the jus in hello context is fully divorced from
that resident in the jus ad helium — the autonomy of the two bodies of law is inter-
national law holy gospel.
Most critics of Operation Change Direction in the jus ad bellum context focus
on the proportionality criterion. The Secretary-General, for example, condemned
Israeli operations on the ground that they had "torn the country to shreds,"
thereby producing results that ran counter to the Israeli need for the Lebanese mili-
tary to exert its authority over southern Lebanon. 126 Similarly, the European Union
warned Israel about acting in violation of the principle.127
But recall that to breach the proportionality norm, the defender must do more
than reasonably required in the circumstances to deter a threatened attack or de-
feat an ongoing one. On July 13, Hezbollah fired 125 rockets into Israel. The next
day, 103 were launched, with 100 impacting Israeli territory on the fifteenth. The
II )I entered Lebanon in force on July 22 — a day after 97 rockets had been fired.
Nevertheless, the number of rocket attacks actually grew following the Israeli
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Michael N. Schmitt
movement north. In all, Hezbollah rockets killed forty-three civilians and twelve
soldiers, while wounding nearly fifteen hundred.128 It is self-evident, therefore,
that, at least vis-a-vis operations designed to stop rocket attacks, Israeli actions
were proportionate (indeed, arguably insufficient).
More problematic from a proportionality perspective were Israeli operations
targeting lines of communication. In particular, the IDF bombed Beirut Interna-
tional Airport, 109 Lebanese bridges and 137 roads, and established air and naval
blockades.129 According to the Israelis, these steps were designed to frustrate any
spiriting of the hostages out of the country and to keep Hezbollah from being
resupplied.130 As a general matter of operational art,131 attacking lines of commu-
nication also allows an attacker to isolate the battlefield, an especially useful strat-
egy in Lebanon given the concentration of Hezbollah in the south.
That a nexus existed between the stated objectives and the targets selected is ap-
parent. The Israelis had intelligence that indicated there might be an attempt to re-
move the hostages from Lebanon and Hezbollah arms had been smuggled into
Lebanon from abroad, especially Syria and Iran. Interestingly, though, the lines-of-
communication strikes provoked little discussion as to whether the IDF had gone
too far in the jus ad helium sense. Instead, debate focused on two jus in hello ques-
tions: 1) did the targets qualify as military objectives;132 and 2) even if they did, was
the expected harm to civilians and civilian property excessive relative to the antici-
pated military advantage.133 The international community also condemned the ef-
fect the approach had on humanitarian assistance for the Lebanese civilian
population and the movement of displaced persons.134
It does not seem possible to portray objectively Operation Change Direction as
disproportionate from the jus ad helium point of view. Characterizing an action as
disproportionate can be justified on two grounds. First, the action maybe so exces-
sive relative to defensive needs that the situation speaks for itself — res ipsa loquitur.
That was clearly not the case with Operation Change Direction, for Hezbollah con-
tinues to conduct anti-Israeli attacks. By definition, therefore, the operation can-
not be styled as overly broad, at least absent an argument the Israeli actions were
inept.
Moreover, the Hezbollah actions of July 12 must be assessed contextually. The
organization had been attacking Israel for a period measured in decades; no indica-
tion existed that it would desist from doing so in the future.135 As noted by Judge
Roslyn Higgins, the present President of the International Court of Justice, pro-
portionality "cannot be in relation to any specific prior injury — it has to be in rela-
tion to the overall legitimate objective of ending the aggression."136 Viewed in this
way, the only truly effective objective from the defensive perspective was, as noted
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Israeli Operations in Lebanon (2006) and the Law of Self -Defense
by the Israeli Ambassador to the United States, "Hezbollah neutralization."137 The
law of self-defense does not require half measures.
Second, an action is disproportionate when a reasonably available alternative
military course of action employing significantly lesser force would have success-
fully met the defensive aims. Allegations of disproportionality are impossible to
evaluate in the absence of an asserted viable alternative.
The Report of the Human Rights Council's Commission of Inquiry exemplifies
misapplication of the principle. Although not tasked with conducting a jus ad
bellum investigation, the group nevertheless opined that
while Hezbollah's illegal action under international law of 12 July 2006 provoked an
immediate violent reaction by Israel, it is clear that, albeit the legal justification for the
use of armed force (self-defence), Israel's military actions very quickly escalated from a
riposte to a border incident into a general attack against the entire Lebanese territory.
Israel's response was considered by the Security Council in its resolution 1701(2006) as
"offensive military operation". These actions have the characteristics of an armed
aggression, as defined by General Assembly resolution 3314 (XXIX).138
In a footnote, the Report noted that self-defense "is subject to the conditions of ne-
cessity and proportionality," citing Nicaragua and Nuclear Weapons as support.139
The discussion of the escalation from riposte to general attack implies that the
Commission believed a violation of the latter criterion had occurred. Yet, the re-
port failed to explain how a riposte, or even a border action, would have sufficed to
meet Israel's pressing defensive needs. In particular, the Commission did not con-
sider escalation in the context of Hezbollah's ongoing rocket attacks. Without such
granularity, its appraisal was purely conclusory; indeed, absent a mandate to ren-
der such an evaluation, it was irresponsible.
Curiously, a normatively more mature review came from Israeli official corners.
According to the April 2007 interim report of the Winograd Commission, which
Prime Minister Olmert established (and which was approved by the Cabinet) fol-
lowing widespread criticism of the conduct of the war,
The decision to respond with an immediate, intensive military strike was not based on
a detailed, comprehensive and authorized military plan, based on carefull [sic] study of
the complex characteristics of the Lebanon arena. A meticulous examination of these
characteristics would have revealed the following: the ability to achieve military gains
having significant political-international weight was limited; an Israeli military strike
would inevitably lead to missiles fired at the Israeli civilian north; there was not [sic]
other effective military response to such missile attacks than an extensive and
prolonged ground operation to capture the areas from which the missiles were fired —
which would have a high "cost" and which did not enjoy broad support. These
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Michael N. Schmitt
difficulties were not explicitly raised with the political leaders before the decision to
strike was taken.
Consequently, in making the decision to go to war, the government did not consider
the whole range of options, including that of continuing the policy of 'containment', or
combining political and diplomatic moves with military strikes below the 'escalation
level', or military preparations without immediage [sic] military action — so as to
maintain for Israel the full range of responses to the abduction. This failure reflects
weakness in strategic thinking, which derives [sic] the response to the event from a
more comprehensive and encompassing picture.140
Ultimately, the Winograd Commission concluded that the Prime Minister dis-
played "serious failure in exercising judgment, responsibility and prudence."141
This criticism could be interpreted as reflecting elements of both necessity and
proportionality — necessity in the sense that diplomatic and political moves should
have been employed, and proportionality in that military action below the
"escalation level" might have sufficed. But it is necessary to distinguish between
legal violation and strategic failing. The law does not mandate selection of the
best option; it requires that the choice made be reasonable in the circumstances
as reasonably perceived by the actor at the time. Thus, although the Winograd
Interim Report articulated sensible alternatives, the mere existence of such alter-
natives does not establish a breach of the proportionality criterion. On the con-
trary, recall that the 2000 incident involving the capture of Israeli soldiers had
ended tragically, the Hezbollah missile arsenal had grown since the Israeli with-
drawal, the Lebanese Army had failed to deploy south, the Lebanese government
was fractured and in disarray, and Hezbollah enjoyed the ability to sit on the border
and dictate escalation. The situation had become so complex by the summer of
2006 that no particular course of action was self- evidently optimal.
Assuming, arguendo, the Israeli defensive actions were both necessary and pro-
portional, and assuming for the sake of analysis that the Hezbollah attacks cannot
be classed as a Lebanese "armed attack," the question of whether Israel had the
right to cross into sovereign Lebanese territory to conduct counterterrorist opera-
tions remains. The conundrum is the existence of conflicting international law
rights — Israel's right of self-defense, discussed supra, and Lebanon's right of terri-
torial integrity.142
Territorial integrity lies at the core of the State-centric international legal archi-
tecture, and, thus, the general inviolability of borders is well entrenched in inter-
national law. Indeed, the UN Charter's sine qua non principle, the prohibition on
the use of force found in Article 2(4), expressly bars cross-border uses of force by
singling out territorial integrity. 143 On the other hand, self-defense is no less a
285
Israeli Operations in Lebanon (2006) and the Law of Self -Defense
cornerstone of international law; it represents the sole use of force unambiguously
permitted without Security Council sanction.
Beyond possessing rights, States also shoulder obligations in international law.
Of particular relevance with regard to Operation Change Direction is the duty to
police one's own territory to preclude its use to the detriment of other States. As
John Basset Moore noted in the classic 1927 Permanent Court of Justice case, The
S.S. Lotus, "[IJt is well settled that a State is bound to use due diligence to prevent
the commission within its dominions of criminal acts against another nation or its
people."144 The International Court of Justice reaffirmed this obligation in its very
first case, Corfu Channel^45 In relevant part, the underlying incident involved two
British warships which struck mines in Albanian waters while transiting the Corfu
Strait. The Court concluded that since the mines could not have been laid without
its knowledge, Albania bore responsibility based on "certain general and well rec-
ognized principles," including "every State's obligation not to allow knowingly its
territory to be used for acts contrary to the rights of others."146 The Court reiterated
the point in United States Diplomatic and Consular Staff in Tehran, which involved
seizure by Iranian radicals of the US embassy in Tehran and consulates in Tabriz
and Shiraz, as well as the taking hostage of American diplomats and other citi-
zens.147 There, the Court held that Iran's failure to protect the diplomatic premises
and subsequent refusal to act to free the hostages violated its "obligations under
general international law."148
Soft-law instruments further support an obligation to police one's territory. For
instance, the International Law Commission's 1954 Draft Code of Offences against
the Peace and Security of Mankind labels "the toleration of the organization of . . .
[armed] bands in its own territory, or the toleration of the use by such armed bands
of its territory as a base of operations or as a point of departure for incursions into
the territory of another State" an offense against "the peace and security of man-
kind."149 Similarly, General Assembly 2625 (1970), Declaration on Principles of In-
ternational Law Concerning Friendly Relations and Co-operation among States in
accordance with the Charter of the United Nations, provides that
[e]very State has the duty to refrain from organizing, instigating, assisting or
participating in acts of civil strife or terrorist acts in another State or acquiescing in
organized activities within its territory directed towards the commission of such acts,
when the acts referred to in the present paragraph involve a threat or use of force.150
In terms of State practice, the most useful contemporary reference point is al
Qaeda's use of Afghanistan as a base of operations. In 1999, the Security Council
imposed sanctions on the Taliban government for, in part, granting sanctuary to
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Michael N. Schmitt
Osama bin Laden and for permitting al Qaeda "to operate a network of terrorist
training camps from Taliban- controlled territory and to use Afghanistan as a base
from which to sponsor international terrorist operations."151 It insisted that the
Taliban
cease the provision of sanctuary and training for international terrorists and their
organizations, take appropriate effective measures to ensure that the territory under its
control is not used for terrorist installations and camps, or for the preparation or
organization of terrorist acts against other States or their citizens, and cooperate with
efforts to bring indicted terrorists to justice.
Included was a specific demand that the Taliban turn over Osama bin Laden.152
The following year, the Council levied additional sanctions after the Taliban failed
to expel al Qaeda; it established a sanctions-monitoring mechanism in 200 1.153
Of even greater normative weight was the absence of international condemna-
tion when the United States attacked Afghanistan after the Taliban failed to heed
post-9/11 warnings to turn over Bin Laden and rid the country of terrorists.154
While, as discussed, the legitimacy of translating the non-reaction into a new
norm regarding State support of terrorism is questionable, it is certainly evidence
of a community conviction that Afghanistan had not met its obligations to police
its territory.
Given the aforementioned hard law, soft law and State practice, any formula for
resolving a conflict between one State's right to self-defense and another's right of
territorial integrity must include the fact that the need for conducting the defensive
operations arises only when the latter fails to meet its policing duties. But territorial
integrity must equally be factored into the formula. Therefore, before a State may
act defensively in another's territory, it must first demand that the State from
which the attacks have been mounted act to put an end to any future misuse of its
territory.155 If the sanctuary State either proves unable to act or chooses not to do
so, the State under attack may, following a reasonable period for compliance (mea-
sured by the threat posed to the defender), non-consensually cross into the
former's territory for the sole purpose of conducting defensive operations. The vic-
tim State may not conduct operations directly against sanctuary State forces and
must withdraw as soon as its defensive requirements have been met.156 Since the
victim State has a legal right to act defensively, the sanctuary State may not interfere
with the defensive operations so long as they meet the aforementioned criteria. If it
does, it will have itself committed an armed attack against which the victim State
may use force in self-defense.
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Israeli Operations in Lebanon (2006) and the Law of Self -Defense
This proposition is far from novel; rather, it is, reduced to basics, the Caroline
case.157 Recall that the United Kingdom demanded the United States put an end to
the use of its territory by rebel forces. It was only after US authorities failed to com-
ply that British forces crossed the border in a form of self-help. Those forces with-
drew immediately on capture and destruction of the Caroline. As noted by Lord
Ashburton in his correspondence with Secretary of State Webster,
I might safely put it to any candid man, acquainted with the existing state of things, to
say whether the military commander in Canada had the remotest reason, on the 29th
day of December, to expect to be relieved from this state of suffering by the protective
intervention of any American authority. How long could a Government, having the
paramount duty of protecting its own people, be reasonably expected to wait for what
they had then no reason to expect?158
The facts underlying the British actions were even less compelling than those in the
instant case. Although New York authorities were sympathetic to the Canadian re-
bels, they were not in breach of international demands that control be established
over the territory in question. Further, the United States was actively enforcing the
laws of neutrality.159
In their separate opinions in the Congo case, Judges Kooijmans and Simma took
a stance similar to that presented here. As Simma perceptively noted,
Judge Kooijmans points to the fact that the almost complete absence of governmental
authority in the whole or part of the territory of certain States has unfortunately
become a phenomenon as familiar as international terrorism. I fully agree with his
conclusions that, if armed attacks are carried out by irregular forces from such territory
against a neighbouring State, these activities are still armed attacks even if they cannot
be attributed to the territorial State, and, further, that it "would be unreasonable to
deny the attacked State the right to self-defence merely because there is no attacker
State and the Charter does not so require so."160
How could it be otherwise?161
The standards set forth apply neatly to Operation Change Direction. Following
its withdrawal from Lebanon in 2000, Israel repeatedly demanded that Lebanon
move south to secure the area from Hezbollah and other terrorist attacks. The in-
ternational community did so as well. However, Lebanon took no steps to put an
end to the misuse of its territory; on the contrary, it seemed to embrace, albeit
somewhat guardedly, Hezbollah. Either it chose not to police the south or it could
not, but whatever the case, it did not, thereby opening the door for Israeli defen-
sive action.
288
Michael N. Schmitt
Moreover, Israel moved in a very measured, stepped fashion. Its initial opera-
tions were mostly limited to air attacks and the naval blockade. Ground force oper-
ations took place only in the border areas. It was not until September 9 that the IDF
launched large-scale ground operations into southern Lebanon, and even then
they were confined geographically to the area south of the Litani River. Operation
Change Direction was also confined temporally. The entire operation lasted a mere
thirty-four days, at which point a ceasefire was negotiated that provided for an Is-
raeli withdrawal and, at least in theory, safeguarded Israel's security along its
northern border. Finally, although Israel did strike Lebanese military targets, it is at
least arguable that the facilities struck supported Hezbollah operations, as in the
case of the radar stations used in support of the strike on the Israeli warship.
Conclusion
Operation Change Direction remains a subject of continuing controversy, al-
though most criticism centers on the jus in hello. With regard to the jus ad bellumy
there is relative agreement that Israel had the right to respond to the Hezbollah at-
tacks pursuant to the law of self-defense. Its response comported with the various
requirements set forth in that body of law. Hezbollah's Operation True Promise
rose to the level of an "armed attack" as that term is understood normatively, and
the Israeli response met both the necessity and immediacy criteria. Although dis-
agreement exists over compliance with the criterion of proportionality, when Opera-
tion Change Direction is considered in the context of not only the July 12 Hezbollah
attacks, but also those which had preceded them and those which likely would have
followed, the standard was met.
A colorable argument can be fashioned that Lebanon also bore legal responsibil-
ity for the attacks, perhaps even to the extent that it could be treated as having con-
ducted them itself. This is especially so in light of the heightened scrutiny State
support of terrorism is subject to in the aftermath of the September 1 1 attacks
against the United States. However, such an argument, which can be questioned as
a matter of law, need not be made, for the law of self-defense provided an adequate
foundation for the Israeli actions.
In terms of the continuing construction of the normative architecture govern-
ing the use of force, Operation Change Direction is relevant in two important re-
gards. First, it serves as further evidence of an operational code extending the reach
of self-defense to armed attacks conducted by non-State actors. Despite the appar-
ent unwillingness of the International Court of Justice to acknowledge that the law
of self-defense now reaches such actions, State practice demonstrates acceptance
by the international community. Second, Operation Change Direction serves as an
289
Israeli Operations in Lebanon (2006) and the Law of Self -Defense
excellent illustration of the growing acceptability of cross-border counterterrorist
operations when the State in which terrorists are located fails to comply with the
duty to police its own territory.
These issues loomed large on the international legal horizon following the at-
tacks of September 11. Reaction to the coalition response, Operation Enduring
Freedom, suggested that the international community had come to interpret Arti-
cle 51 as allowing an Article 51 response against non-State actors, including a non-
consensual penetration of another State's territory to carry it out. However, opera-
tions against al Qaeda and the Taliban made for weak precedent because both
groups were globally reviled. Operation Change Direction, therefore, serves as an
important milestone in crystallizing the operational code in such matters.
Notes
1 . The title "Operation True Promise" derived from the "promise" by Hezbollah Secretary-
General Hassan Nasrallah to capture Israeli soldiers, who would in turn be exchanged for pris-
oners held by the Israelis. AMNESTY INTERNATIONAL, UNDER FIRE: HlZBULLAH'S ATTACKS ON
NORTHERN ISRAEL 1 (Sept. 2006), available at http://www.amnestyusa.org/document.php
?lang- e&id=ENGMDE020252006. For a factual summary of the conflict, see GlobalSecurity
.org, Operation Change Direction, http://www.globalsecurity.org/military/world/war/lebanon
-change-of-direction-chronl.htm (last visited Feb. 12, 2008).
2. Permanent Representative of Israel to the United Nations (Daniel Gillerman), Identical
Letters Dated 12 July 2006 from the Permanent Representative of Israel to the United Nations
Secretary-General and the President of the Security Council, U.N. Docs. A/60/937, S/2006/515
(July 12, 2006) [hereinafter July 12, 2006 Letters].
3. For a contemporary treatment of the subject, see generally YORAM DINSTEIN, WAR, AG-
GRESSION AND SELF-DEFENCE (4th ed. 2005). See also IAN BROWNLIE, INTERNATIONAL LAW
AND THE USE OF FORCE BY STATES (1963).
4. UN Charter art. 2(4). ("All Members shall refrain in their international relations from
the threat or use of force against the territorial integrity or political independence of any state, or
in any other manner inconsistent with the Purposes of the United Nations.")
5. Id., art. 39.
6. Id., art. 41.
7. Id., art. 42.
8. S.C. Res. 1701, U.N. Doc. S/RES/1701 (Aug. 11, 2006). Resolution 1701 authorized an
increase to fifteen thousand troops and expanded the mandate to include monitoring the
ceasefire, accompanying and supporting the Lebanese Armed Forces as they deployed south fol-
lowing the Israeli withdrawal, assisting the humanitarian relief effort and the return of displaced
persons, assisting the Lebanese government in the demilitarization of the area (except for Leba-
nese Aimed Forces and UNIFIL), and helping to secure the Lebanese borders. Id., para. 1 1 . Reso-
lution 1701 and all UN Security Council resolutions cited infra are available at http://
www.un.org/Docs/sc/index.html; then Resolution; then Year. On UNIFIL, see United Nations
Department of Peacekeeping Operations, UNIFIL (Feb. 1, 2008), http://www.un.org/Depts/
dpko/missions/uni 11 l/i ndex.html.
9. UN Charter art. 51.
290
Michael N. Schmitt
10. Id. The Israeli government complied with the requirement the day it launched Opera-
tion Change Direction. See July 12, 2006 Letters, supra note 2.
11. The jus in bello is also known as the law of war, the law of armed conflict and interna-
tional humanitarian law. Excellent contemporary surveys of the subject include YORAM
Dinstein, The Conduct of Hostilities under the Law of International Armed Con-
flict (2004); A.P.V. ROGERS, LAW ON THE BATTLEFIELD (2d ed. 2004).
12. Common Article 2 to the four 1949 Geneva Conventions provides that the Conventions
apply in "all cases of declared war or of any other armed conflict." Convention for the Ameliora-
tion of the Condition of the Wounded and Sick in Armed Forces in the Field art. 2, Aug. 12, 1949,
6 U.S.T. 3 1 14, 75 U.N.T.S. 3 1 [hereinafter Geneva Convention I] ; Convention for the Ameliora-
tion of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea art.
2, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85 [hereinafter Geneva Convention II]; Convention
Relative to the Treatment of Prisoners of War art. 2, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S.
135 [hereinafter Geneva Convention III]; Convention Relative to the Protection of Civilian Per-
sons in Time of War art. 2, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter Geneva
Convention IV]. Geneva Conventions I, II, III and IV are reprinted in DOCUMENTS ON THE
LAWS OF WAR (Adam Roberts & Richard Guelff eds., 3d ed. 2000) at 197, 222, 244 and 301, re-
spectively. The Preamble to the 1977 Protocol Additional I similarly provides that
the provisions of the Geneva Conventions of 12 August 1949 and of this Protocol must
be fully applied in all circumstances to all persons who are protected by those
instruments, without any adverse distinction based on the nature or origin of the armed
conflict or on the causes espoused by or attributed to the Parties to the conflict.
Protocol Additional (I) to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of International Armed Conflicts pmbl, June 8, 1977, 1125 U.N.T.S. 3,
reprinted in id. at 422 [hereinafter Additional Protocol I].
13. On jus in bello issues in the conflict, see Israel Ministry of Foreign Affairs, Israel's War
with Hezbollah: Preserving Humanitarian Principles While Combating Terrorism, Diplomatic
Note No. 1 (Apr. 2007), at 2 [hereinafter Israel's War]; Human Rights Council, Implementation
of General Assembly Resolution 60/251 of 15 March 2006 Entitled "Human Rights Council":
Report of the Commission of Inquiry on Lebanon pursuant to Human Rights Council Resolu-
tion S-2, U.N. Doc. A/HRC/3/2 (Nov. 23, 2006), available at http://hrw.org/reports/2007/
lebanon0907Zlebanon0907webwcover.pdf; HUMAN RIGHTS WATCH, WHY THEY DIED: CIVIL-
IAN Casualties During the 2006 War (2007); Amnesty International, Deliberate De-
struction or "Collateral Damage"? Israeli Attacks on Civilian Infrastructure
(2006), available at http://www.amnesty.org/en/library/info/MDE18/007/2006.
14. Which in turn contributed to the fifteen-year internal conflict (1975-90) between vari-
ous Lebanese political and religious factions.
15. S.C. Res. 425, U.N. Doc. S/RES/425 (Mar. 19, 1978); S.C. Res. 426, U.N. Doc. S/RES/426
(Mar. 19, 1978).
16. In 1981, Israel launched attacks into Beirut against targets allegedly tied to terrorist at-
tacks. The Security Council condemned the Israeli response and demanded cessation of opera-
tions. S.C. Res. 490, U.N. Doc. S/RES/490 (July 21, 1981).
17. There had been prior attacks by Palestinian groups; the attempted assassination of Am-
bassador Shlomo Argov was merely the final straw for the Israelis.
18. For a discussion of the legal aspects of the operation, see Barry Feinstein, The Legality of
the Use of Force by Israel in Lebanon -June 1982, 20 ISRAEL LAW REVIEW 362 (1985). The Security
Council immediately called for withdrawal of the Israeli forces and respect for the sovereignty of
Lebanon. S.C. Res. 508, U.N. Doc. S/RES/508 (June 5, 1982); S.C. Res. 509, U.N. Doc. S/RES/509
291
Israeli Operations in Lebanon (2006) and the Law of Self -Defense
(June 6, 1982). In 1983, negotiations led to a peace treaty between Israel and Lebanon, but the
Lebanese National Assembly, under Syrian pressure, did not ratify it; the following year Lebanese
President Amin Gemayel cancelled the agreement. Jeremy Sharp et al., Lebanon: The Israel-
Hamas-Hezbollah Conflict, Congressional Research Service Report for Congress, 35 (Sept. 15,
2006).
19. Audrey Cronin et al., Foreign Terrorist Organizations, Congressional Research Service
Report for Congress, 34-35 (Feb. 6, 2004). On Israeli assertions regarding Syrian and Iranian
support, see Israel Ministry of Foreign Affairs, Statement by Foreign Ministry Deputy Director-
General Gideon Meir (July 13, 2006), http://mfa.gov.il/MFA/ About+the+Ministry/MFA
-t-Spokesman/2006/Statement+by+Foreign+Ministry-(-Deputy+DG-(-Gideon-l-Meir+13-Jul-2006
.htm.
20. Cronin et al., supra note 19, at 34-35.
21. Sharp et al., supra note 18, at 35.
22. S.C. Res. 1310, U.N. Doc. S/RES/1310 (July 27, 2000). See also the certification of the
Secretary-General. The Secretary-General, Report on the United Nations Interim Force in Leba-
non (for the Period from 1 7 January to 1 7 July 2000), U.N. Doc. S/2000/7 1 8 (July 20, 2000); Let-
ter from the Secretary-General to the President of the Security Council, U.N. Doc S/2000/731
(July 24, 2000).
23. Sharp et al., supra note 18, at 36. Israel extended its laws to Shab'a Farms in 1981 in an act
the Security Council condemned. S.C. Res. 497, U.N. Doc. S/RES/497 (Dec. 17, 1981).
24. For instance in 2002, it murdered five civilians in a roadside shooting. Israel Ministry of
Foreign Affairs, Behind the Headlines: The Second Lebanon War - One Year Later (July 12,
2007), available at http://www.mfa.gov.il/MFA/ About+the+Ministry/Behind+the+Headlines/
The+Second+Lebanon+War-l— l-One+year-(-later+— l-July+2007.htm.
25. Paul Adams, Fears Mounting of Another Israeli War with Hezbollah, GLOBE AND MAIL
(Canada), Dec. 13, 2002, at A8.
26. S.C. Res. 1310, supra note 22; S.C. Res. 1337, U.N. Doc. S/RES/1337 (Jan. 30, 2001); S.C.
Res. 1365, U.N. Doc. S/RES/1365 (July 31, 2001); S.C. Res. 1391, U.N. Doc. S/RES/1391 (Jan. 28,
2002); S.C. Res. 1428, U.N. Doc. S/RES/1428 (July 30, 2002); S.C. Res. 1461, U.N. Doc. S/RES/
1461 (Jan. 30, 2003); S.C. Res. 1490, U.N. Doc. S/RES/1490 (July 31, 2003); S.C. Res. 1525, U.N.
Doc. S/RES/1525 (Jan. 30, 2004); S.C. Res. 1553, U.N. Doc. S/RES/1553 (July 29, 2004); S.C. Res.
1559, U.N. Doc. S/RES/1559 (Sept. 2, 2004); S.C. Res. 1583, U.N. Doc. S/RES/1583 (Jan. 28,
2005); S.C. Res. 1614, U.N. Doc. S/RES/1614 (July 29, 2005); S.C. Res. 1655, U.N. Doc. S/RES/
1655 (Jan. 31, 2006); S.C. Res. 1680, U.N. Doc. S/RES/1680 (May 17, 2006).
27. Not only did Lebanon fail to exert physical control over Hezbollah-controlled territory,
it refused to freeze the organization's financial assets. Cronin et al., supra note 19, at 36.
28. The National Assembly amended the Constitution to make this possible; previously, the
President's term had been limited to six years.
29. S.C. Res. 1559, supra note 26.
30. The agreement called for "spreading the sovereignty of the State of Lebanon over all Leb-
anese territory" through the "disbanding of all Lebanese and non-Lebanese militias" and the de-
livery of their weapons "to the State of Lebanon within a period of six months." The Secretary-
General, Report pursuant to Security Council Resolution 1 559, at 2, U.N. Doc. S/2004/777 (Oct.
1,2004).
3 1 . The Secretary-General, First Semi-Annual Report of the Secretary-General to the Secu-
rity Council on the Implementation of Resolution 1559, at 9-10 (2004), U.N. Doc. S/2005/272
(Apr. 26, 2005).
32. Two-thirds.
292
Michael N. Schmitt
33. Energy and Water, and Labor.
34. A Special Tribunal (hybrid UN-Lebanese) for Lebanon has been established to address
the assassination. S.C. Res. 1664, U.N. Doc. S/RES/1664 (Mar. 29, 2006) (encourages negotiation
with Lebanon); S.C. Res. 1757, U.N. Doc. S/RES/1757 (May 30, 2007) (endorsing annexed agree-
ment).
35. Lebanese Cabinet's Policy Statement of May 2005, extracted in Human Rights Council,
supra note 13, at 129 n.32.
36. Lara Deeb, Hizbullah: A Primer, MIDDLE EAST REPORT ONLINE, July 31, 2006, http://
www.merip.org/mero/mero073106.html; International Crisis Group, Israel/Palestine/Lebanon:
Climbing Out of the Abyss, Middle East Report No. 57, at 10 (July 25, 2006).
37. Israel's War, supra note 13, at 2. Indeed, Hezbollah hoped in part to secure the release of
prisoners which it asserted had been wrongfully withheld in the 2004 prisoner exchange.
38. The Secretary-General, Report of the Secretary- General on the United Nations Interim
Force in Lebanon: For the Period from 22 July 2005 to 20 January 2006 para. 12, U.N. Doc. S/
2006/26 (Jan. 18,2006).
39. Israel's War, supra note 13, at 23 app. A (Number of Missiles Fired into Israel by
Hizbullah on a Daily Basis).
40. Anthony H. Cordesman, Preliminary "Lessons" of the Israel-Hezbollah War (Center for
Strategic 8c International Studies, Working Draft for Outside Comment, (2d rev. ed. Sept. 11,
(2006)); Behind the Headlines: The Second Lebanon War, supra note 24.
41. Israel's War, supra note 13, at 8
42. A "line of communications" is a "route, either land, water, and/or air, that connects an
operating military force with a base of operations and along which supplies and military forces
move." Department of Defense, Joint Publication 1-02, Dictionary of Military Terms, amended
through Oct. 17, 2007, http://www.dtic.mil/doctrine/jel/doddict.
43. The decision to do so was taken by the Israeli Cabinet. Israel Ministry of Foreign Affairs,
Political-Military Cabinet Resolution (Aug. 9, 2006), available at http://www.mfa.gov.il/MFA/
Government/Communiques/2006/Political-Security+Cabinet+resolution+9-Aug-2006.htm. For
the Israeli justification of the step, see Israel Ministry of Foreign Affairs, Behind the Headlines: Is-
rael's Counter Terrorist Campaign (Aug. 15, 2006), available at http://www.mfa.gov.il/MFA/
About+the+Ministry/Behind+the+Headlines/Israels+counter+terrorist+campaign+-+FAQ
-Hl8-Jul-2006.htm.
44. S.C. Res. 1701, supra note 8.
45. July 12, 2006 Letters, supra note 2.
46. Israel Cabinet Secretariat, Special Cabinet Communique — Hizbullah Attack (July 12, 2007),
http://www.mfa.gov.il/MFA/Government/Communiques/2006/Special+Cabinet-l-Communique
+-+Hizbullah+attack+ 1 2- Jul-2006.htm.
47. Press Conference, Prime Minister Ehud Olmert, Lebanon Is Responsible and Will Bear
the Consequences (July 12, 2006), http://www.mfa.gov.il/MFA/Government/Communiques/
2006/PM+Olmert+-+Lebanon+is+responsible+and+will+bear+the+consequences+12-Jul-
2006 .htm.
48. Chris McGreal, Capture of Soldiers was "Act of War" says Israel, THE GUARDIAN (Lon-
don), July 13, 2006, at 1.
49. The existence of an armed conflict bears on the issue of whether the law of armed conflict
applies during the conflict. According to the UN Human Rights Council's Commission of In-
quiry on Lebanon, the conflict qualified as an "international armed conflict" to which Israel,
Hezbollah and Lebanon were parties. Human Rights Council, supra note 13, para. 55.
293
Israeli Operations in Lebanon (2006) and the Law of Self -Defense
50. Id., paras. 56-57. Moreover, although done in the context of the jus in bdlo, the Commis-
sion of Inquiry found that Hezbollah constituted a "militia" belonging to a party to the conflict
within the meaning of Article 4A(2) of the Third Geneva Convention. Geneva Convention III,
supra note 12, art. 4A(2).
51. Charge d'affaires a. i. of the Permanent Mission of Lebanon to the United Nations, Iden-
tical Letters Dated 1 3 July 2006 from the Charge d'affaires a.i. of the Permanent Mission of Leba-
non to the United Nations Addressed to the Secretary-General and the President of the Security
Council, U.N. Doc. S/2006/518 (July 13, 2006).
52. Prime Minister Fouad Siniora, Address to the Lebanese People (July 15, 2006), http://
www.lebanonunderseige.gov.lb/english/F/eNews/NewsArticle.asp?CNewsID=17.
53. The Secretary-General, Statement to the Security Council, U.N. SCOR, 61st Sess., 5492d
mtg. at 3, U.N. Doc. S/PV.5492 (July 20, 2006) [hereinafter Secretary-General Statement] . At the
time, Lebanon was not on the US Department of State's list of sponsors of terrorism. US Depart-
ment of State, Office of Coordinator for Counterterrorism, Country Reports on Terrorism ch. 6
(Apr. 28, 2006), available at http://www.state.gOv/s/ct/rls/crt/2005/64337.htm.
54. Israel Cabinet Secretariat, Cabinet Communique (July 16, 2006), available at http://
www.mfa.gov.il/MFA/Government/Communiques/2006/Cabinet-t-Communique-l-16-Jul-2006
.htm.
55. Behind the Headlines: Israel's Counter Terrorist Campaign, supra note 43.
56. Id. Speaking before the Security Council on July 3 1 , the Israeli Ambassador noted that Is-
rael had "repeatedly been compelled to act not against Lebanon, but against the forces and the
monstrosity which Lebanon had allowed itself to be taken hostage by." U.N. SCOR, 61st Sess.,
5503d mtg. at 4, U.N. Doc S/PV.5503 (July 31, 2006).
57. Human Rights Council, supra note 13, para. 53.
58. Secretary-General Statement, supra note 53.
59. See U.N. SCOR, 61st Sess., 5489th mtg., U.N. Doc. S/PV.5489 (July 14, 2006). China and
Qatar labeled the Israeli actions "armed aggression." Id. See also U.N. SCOR, 61st Sess., 5493d
mtg., U.N. Doc. S/PV.5493 (Resumption 1) (July 21, 2006).
60. Secretary-General Statement, supra note 53. (Although the Secretary-General con-
demned the scope of the operation.)
61. For instance, the United States, Australia and Canada. Hassan M. Fattah & Steven
Erlanger, Israel Blockades Lebanon; Wide Strikes by Hezbollah, NEW YORK TIMES, July 1 4, 2006, at
Al; Israel Acting in Self-defense, Says Howard, ABC NEWS ONLINE, July 16, 2006, http://
www.abc.net.au/news/newsitems/200607/sl687707.htm; lane Taber, Harper Defends Israels
Right "to Defend Itself," THE GLOBE AND MAIL (Canada), July 14, 2006, at A 12.
62. Augustus Richard Norton, Hezbollah: A Short History 136-37 (2007), citing
AL-WATAN, July 14,2006.
63. NORTON, supra note 62, at 1 37, citing AL-jAZEERA, July 2 1 , 2006.
64. NORTON, supra note 62, at 140.
65. Group of Eight, St. Petersburg Summit Statement (July 16, 2006), available at http://
www.america.gov/st/texttrans-english/2006/July/20060716150444uhyggep0.5012432.html; Eu-
ropean Union, EU Council Conclusions on the Middle East (July 17, 2006), available at http://
www.europa-eu-un.org/articles/en/article_6125_en.htm.
66. S. Res. 534, 109th Cong. (2006); H.R. Res. 921, 109th Cong. (2006).
67. S.( ). Res. 1701, supra note 8. The Council "[e|xpress[ed] its utmost concern at the con-
tinuing escalation of hostilities in Lebanon and in Israel since Hizbollah's attack on Israel on 12
July 2006" (emphasis added). A Secretary-( ieneral Report on the United Nations Interim Force
in Lebanon similarly recounted that
294
Michael N. Schmitt
[t]he crisis started when, around 9 a.m. local time, Hizbollah launched several rockets
from Lebanese territory across the withdrawal line (the so-called Blue Line) towards
Israel Defense Forces (IDF) positions near the coast and in the area of the Israeli town of
Zarit. In parallel, Hizbollah fighters crossed the Blue Line into Israel and attacked an
IDF patrol. Hizbollah captured two IDF soldiers, killed three others and wounded two
more. The captured soldiers were taken into Lebanon.
The Secretary-General, Report on the United Nations Interim Force in Lebanon to the Security
Council 1, U.N. Doc. S/2006/560 (July 21, 2006).
68. It is discerned in part by observing the actual behavior of international elites. An opera-
tional code contrasts with a "myth system," that is, the law that purportedly applies by simple
reference to the lex scripta. On the distinction, see W. MICHAEL REISMAN & JAMES BAKER,
Regulating Covert Action: Practices, Contexts and Policies of Covert Action
Abroad in International and American Law 23-24 (1992); W. Michael Reisman,
Jurisprudence: Understanding and Shaping Law 23-25 (1987); Michael N. Schmitt, The
Resort to Force in International Law: Reflections on Positivist and Contextual Approaches, 37 AIR
Force Law Review 105, 112-19 (1994).
69. International Law Commission, Draft Articles on Responsibility of States for Intention-
ally Wrongful Acts art. 8, G.A. Res. 56/83, U.N. GAOR, 56th Sess., Supp. No. 10, U.N. Doc. A/56/
10(SUPP) (Dec. 12, 2001) [hereinafter Articles of State Responsibility]. Another approach
would focus on Article 4, which provides that the "conduct of any State organ shall be considered
an act of that State under international law " Organs include "any person or entity which has
that status in accordance with the internal law of the State." Id., art. 4. By Article 7, this is so "even
if [the organ] exceeds its authority or contravenes instructions." Id., art. 7. Although Hezbollah
had seats in the National Assembly and occupied two Cabinet posts, it is untenable to suggest
that virtually all Hezbollah members thereby became agents of the State. Note that the Articles of
State Responsibility are "soft law," in that they merely attempt to restate customary law.
70. Id., art. 9. Commentary to the Article provides that "[s]uch cases occur only rarely, such
as during a revolution, armed conflict or foreign occupation, where the regular authorities dis-
solve, are disintegrating, have been suppressed or are for the time being inoperative." JAMES
Crawford, The International Law Commission's Articles on State Responsibility:
Introduction, Text and Commentaries 1 14 (2002). On the issue of responsibility, it should
also be noted that the International Court of lustice has deemed ex post facto endorsement of an
action sufficient to attribute the act in question to the State. United States Diplomatic and Con-
sular Staff in Tehran (U.S. v. Iran), 1980 I.C.J. 3 (May 24), para. 74. However, in the instant case,
the Lebanese government immediately distanced itself from Hezbollah's luly 12 attacks.
71. Articles of State Responsibility, supra note 69, art 50.1(a). ("Countermeasures shall not
affect . . . [t]he obligation to refrain from the threat or use of force as embodied in the Charter of
the United Nations.") Restated, force may only be used in response to another State's wrong if
said force would otherwise be permissible under the Charter, i.e., defensive force in response to
an armed attack or actions pursuant to a Chapter VII, Article 42, mandate.
72. See, e.g., HANS KELSEN, COLLECTIVE SECURITY UNDER INTERNATIONAL LAW 88 (1957)
(Vol. 49, US Naval War College International Law Studies); see also Hans Kelsen, Collective Secu-
rity and Collective Self-Defense under the Charter of the United Nations, 42 AMERICAN IOURNAL
OF INTERNATIONAL LAW 783 (1948).
73. Or "substantial [State] involvement therein." Military and Paramilitary Activities
(Nicar. v. U.S.), 1986 I.C.J* 14 (June 27), para. 195 [hereinafter Nicaragua]. In the case, the
United States argued that its support for the Contra rebels was justified as collective defense
against Nicaragua's provision of arms and logistical supplies to rebels conducting operations
295
Israeli Operations in Lebanon (2006) and the Law of Self -Defense
against El Salvador. The Court rejected the notion that providing supplies and logistic support
amounted to an "armed attack" (although it might be unlawful intervention into another State's
internal affairs in violation of Article 2(4) of the UN Charter). Id.
74. Id., citing Definition of Aggression, G.A. Res. 3314 (XXIX), Annex, 2319th plen. mtg.,
U.N. Doc. A/RES/3314 (XXIX) (Jan. 1, 1975).
75. Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), 2005
I.C.J. 116 (Dec. 19), para. 146 (see also Separate Opinion of Judge Kooijmans, id., para. 22)
[hereinafter Congo]; Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (Bosn. & Herz. v. Serb. & Mont.), I.C.J. , General List No. 91, Feb. 26, 2007,
paras. 391-92.
76. Prosecutor v. Tadic, Case. No. IT-94-1, Judgment, Appeals Chamber, July 15, 1999,
paras. 120 & 145.
77. Kooijmans Separate Opinion, supra note 75, para. 25
78. See discussion in Michael N. Schmitt, Counter-terrorism and the Use of Force in Interna-
tional Law, in INTERNATIONAL LAW AND THE WAR ON TERROR 7, 16-18 (Fred Borch & Paul
Wilson eds., 2003) (Vol. 79, US Naval War College International Law Studies).
79. S.C. Res. 1378, U.N. Doc. S/RES/1378 (Nov. 14, 2001).
80. In a 1949 report commenting on the meaning of the term "armed attack" in the North
Atlantic Treaty, the Senate Foreign Relations Committee suggested that the "words 'armed at-
tack' clearly do not mean an incident created by irresponsible groups or individuals, but rather
an attack by one State upon another." S. EXEC. REPORT No. 81-8, at 13 (1949).
8 1 . Indeed, Ian Brownlie argued that even if a non-State actor could mount an armed attack,
"[i]ndirect aggression and the incursions of armed bands can be countered by measures of de-
fence which do not involve military operations across frontiers." BROWNLIE, supra note 3, at 279.
82. Use of force pursuant to a mandate of the Security Council. See discussion accompany-
ing notes 5-7 supra.
83. S.C. Res. 827, U.N. Doc. S/RES/827 (May 25, 1993) (International Criminal Tribunal for
the former Yugoslavia); S.C. Res. 955, U.N. Doc. S/RES/955 (Nov. 8, 1994) (International Crimi-
nal Tribunal for Rwanda).
84. Oscar Schachter, International Law in Theory and Practice 164 (1991).
85. DlNSTEIN, supra note 3, at 244-47 (and previous editions). "Extra-territorial law en-
forcement is a form of self-defense, and it can be undertaken by Utopia against terrorists and
armed bands inside Arcadian territory only in response to an armed attack unleashed by them
from that territory. Utopia is entitled to enforce international law extra-territorially if and when
Arcadia is unable or unwilling to prevent repetition of that armed attack." Id. at 247.
86. See discussion in D.W. BOWETT, SELF-DEFENCE IN INTERNATIONAL LAW 58-60 (1958);
R.Y. Jennings, The Caroline and Mcleod Cases, 32 AMERICAN JOURNAL OF INTERNATIONAL LAW
82(1938).
87. The relevant correspondence is available at Yale Law School Avalon Project, Webster-
Ashburton Treaty - The Caroline Case, http://www.yale.edu/lawweb/avalon/diplomacy/britain/
br-1842d.htm.
88. McLeod was ultimately acquitted at trial.
89. S.C. Res. 1368, U.N. Doc. S/RES/1368 (Sept. 12, 2001).
90. S.C. Res. 1373, U.N. Doc. S/RES/1373 (Sept. 28, 2001).
91. North Atlantic Treaty art. 5, Apr. 4, 1959, 63 Stat. 2241, 2244, 34 U.N.T.S. 243, 246;
NATO Press Release (2001)124, Statement by the North Atlantic Council (Sept. 12, 2001), http://
www.nato.int/docu/pr/200 1 /p() 1 - 1 24e.htm; Inter- American Treaty of Reciprocal Assistance art. 3. 1 ,
Sept. 2, 1947, 62 Stat. 1681, 1700, 21 U.N.T.S. 77, 93; Terrorist Threat to the Americas, Res. 1/01,
296
Michael N. Schmitt
Twenty-fourth Meeting of Consultation of Ministers of Foreign Affairs, OAS Doc. RC24/RES.1/01
(Sept. 21, 2001), available at http://www.oas.org/OASpage/crisis/RC.24e.htm.
92. Security Treaty, U.S.-Aust.-N.Z., art. IV, Sept. 1, 1951, 3 U.S.T. 3420, 3423, 131 U.N.T.S.
83, 86; Brendan Pearson, PM Commits to Mutual Defence, AUSTRALIAN FINANCIAL REVIEW,
Sept. 15, 2001, at 9.
93. Letter from the Permanent Representative of the United States of America to the United
Nations Addressed to the President of the Security Council, Oct. 7, 2001, U.N. Doc. S/200 1/946,
available at http://documents-dds-ny.un.org/doc/UNDOC/GEN/N01/567/85/pdf/N0156785
.pdf?OpenElement.
94. Sean D. Murphy, Contemporary Practice of the United States Relating to International
Law, 96 American Journal of International Law 237, 248 (2002).
95. Id.
96. Id.
97. Declaration by the Heads of State or Government of the European Union and the Presi-
dent of the Commission: Follow-up to the September 1 1 Attacks and the Fight Against Terror-
ism, SN 4296/2/01 Rev. 2, at 1 (Oct. 19, 2001).
98. Eg, S.C. Res. 1378, supra note 79; S.C. Res. 1386, U.N. Doc. S/RES/1386 (Dec. 20, 2001); S.C.
Res. 1390, U.N. Doc. S/RES/1390 (Jan. 28, 2002). Even the Organization of the Islamic Conference
appeared to acquiesce. It merely requested that the operations not extend beyond Afghanistan. Dan-
iel Williams, Islamic Group Offers U.S. Mild Rebuke, WASHINGTON POST, Oct. 1 1, 2001, at A21.
99. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
Advisory Opinion, 2004 I.C.J. 131 (July 9).
100. Id., para. 139.
101. Id. at Separate Opinion of Judge Higgins, para. 33; Separate Opinion of Judge
Kooijmans, para. 35; Declaration of Judge Buergenthal, para. 6. Moreover, the question in the
two International Court of Justice cases differed materially. In Nicaragua, the issue was when did
a State's support of guerrillas justify imputing their acts to the State such that the victim could re-
spond in self-defense (individually or collectively) directly against the supporter. The Court did
not address the issue at hand in the Wall case, i.e., whether the actions of a non-State actor justi-
fied the use of force directly against that actor in self-defense.
102. Congo, supra note 75, paras. 146-47.
103. Id., Separate Opinion of Judge Kooijmans, para. 29.
104. Id., Separate Opinion of Judge Simma, para. 11.
105. The ICJ has distinguished the "most grave" uses of force (armed attacks under Article 51)
from "less grave ones," i.e., those merely in violation of Article 2(4) of the UN Charter. Nicara-
gua, supra note 73, para. 191. The Court relied heavily on the General Assembly's Definition of
Aggression Resolution, supra note 74, arts. 2, 3. See also Oil Platforms (Iran v. U.S.), 2003 I.C.J.
161 (Nov. 6), para. 51.
106. Nicaragua, supra note 73, para. 195. See also Oil Platforms, supra note 105, para. 72,
where the Court found that the mining of a single ship could rise to the level of an "armed at-
tack." The Court obliquely suggested that a pattern of incidents might exacerbate the severity of a
single incident. Id.
107. See, e.g., DlNSTEIN, supra note 3, at 195; William H. Taft IV, Self -Defense and the Oil Plat-
forms Decision, 29 YALE JOURNAL OF INTERNATIONAL LAW 295, 300 (2004).
108. Extracts from Speech Delivered in the Sixth Committee of the General Assembly by the
Representative of the United Kingdom, Mr. G.G. Fitzmaurice, C.M.G., on January 9, 1952, 1
INTERNATIONAL & COMPARATIVE LAW QUARTERLY 139 (1952).
297
Israeli Operations in Lebanon (2006) and the Law of Self- Defense
109. Even by restrictive standards such as Antonio Cassese's "very serious attack." Antonio
Cassese, The International Legal Community's "Legal" Response to Terrorism, 38 INTERNATIONAL
& Comparative Law Quarterly 589 (1989).
1 1 0. Recall that Hezbollah provided a label for the planned actions, Operation True Promise.
111. Letter from Daniel Webster, US Secretary of State, to Lord Ashburton (July 27, 1842), 30
BRITISH & FOREIGN STATE PAPERS 193 (1843); see an earlier recitation of the requirements in
Letter from Daniel Webster, US Secretary of State, to Henry Fox, British Minister in Washington
(Apr. 24, 1841), in 29 BRITISH & FOREIGN STATE PAPERS 1840-1841, at 1138 (1857).
1 12. The International Military Tribunal at Nuremberg cited the standard when rejecting the
argument that Germany invaded Norway in self-defense in 1940. International Military Tribu-
nal (Nuremberg), Judgment (1946), 1 International Military Tribunal 171, 207, 41 AMERICAN
Journal of International Law 172, 205 (1947); see also Restatement (Third) of the
Foreign Relations Law of the United States 905 (1987).
1 13. Nicaragua, supra note 73, para. 194.
1 14. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226
(July 8), para. 41 [hereinafter Nuclear Weapons].
115. Oil Platforms, supra note 105, paras. 43, 73-74, 76.
1 16. Congo, supra note 75, para. 147.
117. S.C. Res. 1559 and S.C. Res. 1680, supra note 26.
118. Cordesman, supra note 40, at 7.
119. NORTON, supra note 62, at 135.
120. See, e.g., Jim Rutenberg, Bush and Israeli Prime Minister Maintain Tough Front on Iran,
NEW YORK TIMES, Nov. 14, 2006, at A6. (Ahmadinejad was quoted in the Iranian media as say-
ing about Israel, "We will soon witness its disappearance and destruction.")
121. DlNSTEIN, supra note 3, at 56 (since a bilateral peace agreement has not been concluded).
122. UN Charter art. 51.
123. As noted in a report to the International Law Commission,
It would be mistaken ... to think that there must be proportionality between the
conduct constituting the armed attack and the opposing conduct. The action needed to
halt and repulse the attack may well have to assume dimensions disproportionate to
those of the attack suffered. What matters in this respect is the result achieved by the
"defensive" action, and not the forms, substance and strength of the action itself.
Robert Ago, Addendum to Eighth Report on State Responsibility, in [1980] 2 YEARBOOK OF THE
INTERNATIONAL LAW COMMISSION 13, 69, U.N. Doc. A/CN.4/SER.A/1980/Add.l (Part 1), U.N.
Sales No. E81.V.4 (Part 1).
124. Additional Protocol I, supra note 12, arts. 51.5(b), 57.2(a)(iii), 57.2(b).
1 25. Rephrased in the Operation Change Direction context, was the harm to civilians and ci-
vilian property that was likely to have been caused during Israeli strikes on lawful military objec-
tives excessive relative to the operational benefits Israeli commanders reasonably hoped to
receive therefrom, such that they were disproportionate? Numerous reports on the conflict al-
lege that certain of the Israeli operations did breach this norm. Human Rights Council, supra
note 13, paras. 317-31; Human Rights Watch, supra note 13, at 5; but see Israel's War, supra note
13, at 1 1-20; Israel Ministry of Foreign Affairs, Responding to Hizbullah Attacks from Lebanon:
Issues of Proportionality (July 25, 2006), available at http://www.mfa.gov.il/MFA/Government/
Law/Legal + Issues+and+Rulings/Responding+to+Hizbullah+attacks+from-l-Lebanon--l-Issues
+of+proportionality+July+2006.htm.
126. Secretary-General Statement, supra note 53, at 3. He further noted that "[b]oth the de-
liberate targeting by Hizbullah, with hundreds of indiscriminate weapons, of Israeli population
298
Michael N. Schmitt
centres and Israel's disproportionate use of force and collective punishment of the Lebanese peo-
ple must stop." Id.
127. For instance, the European Union styled the Israeli operations a "disproportionate use of
force" on July 13. Fattah & Erlanger, supra note 61.
128. See Israel Ministry of Foreign Affairs, Israel-Hizbullah Conflict: Victims of Rocket
Attacks and IDF Casualties (n.d.), available at http://www.mfa.gov.il/MFA/Terrorism-H-Obstacle
-Ko+Peace/Terrorism+from+Lebanon-+HizbuUaW
+attacks+and+IDF+casualties+July- Aug+2006.htm. A total of 1 16 IDF soldiers were killed dur-
ing the conflict.
129. Human Rights Council, supra note 13, para. 137.
130. id., para. 146.
131. Operational art consists of the "application of creative imagination by commanders and
staffs - supported by their skill, knowledge, and experience - to design strategies, campaigns, and
major operations and organize and employ military forces." Dictionary of Military Terms, supra
note 42.
132. Military objectives are "those objects which by their nature, location, purpose or use
make an effective contribution to military action and whose total or partial destruction, capture
or neutralization, in the circumstances ruling at the time, offers a definite military advantage."
Additional Protocol I, supra note 12, art. 52.2.
133. See supra notes 124-25, and accompanying discussion.
134. Human Rights Council, supra note 13, para. 138; Secretary-General Statement, supra
note 53, at 2.
135. That a series of attacks has occurred bears on the proportionality of the response. As
Robert Ago noted in a report to the International Law Commission, "If. . . a State suffers a series
of successive and different acts of armed attacks . . . , the requirement of proportionality will cer-
tainly not mean that the victim State is not free to undertake a single armed action on a much larger
scale in order to put an end to this escalating series of attacks." Ago, supra note 123, at 69-70.
136. ROSLYN HIGGINS, PROBLEMS AND PROCESS: INTERNATIONAL LAW AND HOW WE USE
IT 232 (1994).
137. He noted, "We will not go part way and be held hostage again. We'll have to go for the
kill — Hezbollah neutralization." Robin Wright, Strikes Are Called Part of Broad Strategy: U.S., Is-
rael Aim to Weaken Hezbollah, Regions Militants, WASHINGTON POST, July 16, 2006, at A15.
138. Human Rights Council, supra note 13, para. 61. The mandate of the Commission was
"(a) To investigate the systematic targeting and killings of civilians by Israel in Lebanon; (b) To
examine the types of weapons used by Israel and their conformity with international law; and (c)
To assess the extent and deadly impact of Israeli attacks on human life, property, critical infra-
structure and the environment." Human Rights Council, Resolution S-2/1, 2d Special Sess., The
Grave Situation of Human Rights in Lebanon Caused by Israeli Military Operations (Aug. 11,
2006). This mandate hardly represented an unbiased tasking. Canada, the Czech Republic, Fin-
land, France, Germany, Japan, the Netherlands, Poland, Romania, Ukraine and the United
Kingdom voted against the Resolution.
139. Human Rights Council, supra note 13, at 131 n.37, citing Nicaragua, supra note 73, para.
176 and Nuclear Weapons, supra note 114, paras. 42, 44.
140. Israel Ministry of Foreign Affairs, Winograd Commission Submits Interim Report (Apr. 30,
2007), para. 10, available at http://www.mfa.gov.il/MFA/Government/Communiques/2007/
Winograd-l-Inquiry-l-Commission-l-submits-l-Interim-l-Report-l-30-Apr-2007.htm [hereinafter
Interim Report]. See also the announcement accompanying the release of the final report in
Hebrew. Council on Foreign Relations (Essential Documents), Winograd Commission Final
299
Israeli Operations in Lebanon (2006) and the Law of Self- Defense
Report I Ian. 30, 2008), available at http://www.cfr.org/publications/15385/winograd_commision
_final_report.html.
141. Interim Report, supra note 140, para. 12e.
142. The conduct of major military operations against non-State armed groups in another
State's territory is not unprecedented. For instance, Turkey has repeatedly conducted operations
against the Kurdish Workers' Party (PKK) in northern Iraq, including bombing attacks in De-
cember 2007 following requests that the United States and Iraq act to stop PKK attacks on Tur-
key. Sebnem Arsu, Turkish Warplanes Attack Kurdish Rebel Camps in Iraq, NEW YORK TIMES,
Dec. 27, 2007, at A14. In response to questions on the incidents, a State Department spokesman
noted that "[w]e have a common enemy — Turkey, Iraq, and the United States — in the form of
the PKK. It's a terrorist organization." US Department of State Daily Press Briefing, Tom Casey,
Deputy Spokesman (Dec. 28, 2007), http://www.state.gOv/r/pa/prs/dpb/2007/dec/98143.htm.
143. It has been correctly asserted that the Article 2(4) prohibition extends to non-consensual
penetrations of a State's territory not otherwise justified within the framework of the Charter.
Albrecht Randelzhoffer, Article 2(4), in 1 THE CHARTER OF THE UNITED NATIONS: A
COMMENTARY 1 12, 123 (Bruno Simma ed., 2d ed. 2002).
144. S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10, at 4, 88 (Moore, J., dissenting on
other grounds), citing for support the US Supreme Court case United States v. Arjona, 120 U.S.
479(1887).
145. Corfu Channel Case (U.K. v. Alb.), 1949 I.C.J. 4 (Apr. 9). See discussion of the case in
BROWNLIE, supra note 3, at 283-89.
146. Corfu Channel, supra note 145, at 22. The British subsequently swept the strait, justifying
their action in Albanian waters as self-help.
147. United States Diplomatic and Consular Staff in Tehran, supra note 70.
148. Id., para. 62. Also the Vienna Convention on Consular Relations, Apr. 23, 1963, 21
U.S.T. 77, 596 U.N.T.S. 26 1 and the Vienna Convention on Diplomatic Relations, Apr. 1 8, 1 96 1 ,
23 U.S.T. 3227, 500 U.N.T.S. 95.
149. Draft Code of Offences against the Peace and Security of Mankind, [1954] 2 YEARBOOK
OF THE INTERNATIONAL LAW COMMISSION 150, U.N. Doc. A/CN.4/SER.A/1954/Add.l.
150. G.A. Res. 2625 (XXV), U.N. GAOR, 25th Sess., Supp. No. 28, at 121, U.N. Doc. A/8028
(Oct. 24, 1970), available at http://www.un.org/documents/ga/res/25/ares25.htm. The Resolu-
tion was adopted by acclamation.
151. S.C. Res. 1267, U.N. Doc. S/RES/1267 (Oct. 15, 1999). The sanctions included a ban on
flights to and from Afghanistan and an international freeze on Taliban assets.
1 52. Id. The previous year it had also demanded that the "Taliban stop providing sanctuary
and training for international terrorists and their organizations, and that all Afghan factions
cooperate with efforts to bring indicted terrorists to justice." S.C. Res. 1214, U.N. Doc. S/RES/
1214 (Dec. 8, 1998). See also S.C. Res. 1193, U.N. Doc. S/RES/1193 (Aug. 28, 1998).
153. S.C. Res. 1333, U.N. Doc. S/RES/1333 (Dec. 19, 2000); S.C. Res. 1363, U.N. Doc. S/RES
1363 (July 30, 2001).
154. On September 28, the Security Council adopted Resolution 1373. The Resolution pro-
hibits States from providing "any form of support, active or passive, to entities or persons in-
volved in terrorist acts, including by suppressing recruitment of members of terrorist groups and
eliminating the supply of weapons to terrorists" and obligates them to, inter alia,
[t]ake the necessary steps to prevent the commission of terrorist acts, including by
provision of early warning to other States by exchange of information; [d]eny safe
haven to those who finance, plan, support, or commit terrorist acts, or provide safe
300
Michael N. Schmitt
havens; and [p]revent those who finance, plan, facilitate or commit terrorist acts from
using their respective territories for those purposes against other States or their citizens.
S.C. Res. 1373, supra note 90.
155. The United States did so following the attacks of September 1 1, 2001, both through Paki-
stan, which had maintained relations with the Taliban and thereby served as a useful intermedi-
ary, and publicly, for example in President Bush's address to a joint session of Congress. Bush
demanded that the Taliban " [c]lose immediately and permanently every terrorist training camp
in Afghanistan, and hand over every terrorist and every person in their support structure to ap-
propriate authorities" and "[g]ive the United States full access to terrorist training camps, so we
can make sure they are no longer operating." Address Before a Joint Session of the Congress on
the United States Response to the Terrorist Attacks of September 1 1, 37 WEEKLY COMPILATION
OF PRESIDENTIAL DOCUMENTS 1347, 1348 (Sept. 20, 2001). The United States issued a final de-
mand the day before Operation Enduring Freedom began. President's Radio Address, 37
Weekly Compilation of Presidential Documents 1429, 1430 (Oct. 6, 2001).
156. On directing actions only against the terrorists, see BOWETT, supra note 86, at 56.
157. Caroline, supra notes 86-88 and accompanying text.
158. Letter from Lord Ashburton to Mr. Webster, July 28, 1842, 61 PARLIAMENTARY PAPERS
(1843); 30 BRITISH & FOREIGN STATE PAPERS 195 (1843).
159. See summary and accompanying letters at Avalon Project, supra note 87.
160. Congo, supra note 75 (Simma Separate Opinion, para. 12; Kooijmans Separate Opinion,
para. 30).
161. This position appears to be increasingly prevalent in academia. In particular, see
Randelzhoffer, supra note 143, at 802.
A special situation arises if a State is not reluctant but incapable of impeding acts of
terrorism committed by making use of its territory. Although such terrorist acts are not
attributable to that State, the State victim of the acts is not precluded from reacting by
military means against the terrorist within the territory of the other State. Otherwise, a
so-called failed State would turn out to be a safe haven for terrorists, certainly not what
Arts. 2(4) and 51 of the Charter are aiming at.
301
APPENDIX
CONTRIBUTORS
Contributors
Editor's Note: In order to most accurately portray the events of the conference, the bio-
graphical data in this appendix reflects the position in which the authors were serving
at the time of the conference, as set forth in the conference brochures and materials.
Professor Craig H. Allen is the 2006-07 Charles H. Stockton Professor of Interna-
tional Law at the US Naval War College and the Judson Falknor Professor of Law at
the University of Washington. He joined the University of Washington faculty in
1994, following his retirement from the US Coast Guard. He is a licensed master
mariner and a Fellow in the Nautical Institute and the Royal Institute of Naviga-
tion. He also serves on the US Navigation Safety Advisory Council and chairs its
Rules of the Road Committee. Professor Allen is the author of FarwelVs Rules of the
Nautical Road and Maritime Counterproliferation Operations and the Rule of Law.
He is also on the board of editors of the Ocean Development and International Law
journal.
Rear Admiral William D. Baumgartner, US Coast Guard, serves as the ludge Ad-
vocate General and Chief Counsel of the Coast Guard. Prior to his current assign-
ment, Rear Admiral Baumgartner served as Chief, Office of Maritime and
International Law at Coast Guard Headquarters and headed the US delegation to
the Legal Committee of the International Maritime Organization. He has served as
the Staff ludge Advocate for the Seventh Coast Guard District in Miami, Florida
and as the Chief of Staff for Homeland Security Task Force Southeast, an inter-
agency task force charged with planning for and executing Caribbean mass migra-
tion deterrence and response operations. Previous legal assignments also include
tours at the Eighth Coast Guard District in New Orleans, Louisiana; Coast Guard
Maintenance and Logistics Command Pacific in Alameda, California; and Naval
Legal Service Office West in San Francisco, California. Prior to joining the Coast
Guard's legal program, Rear Admiral Baumgartner specialized in surface opera-
tions and served as the Commanding Officer of USCGC Point Verde and USCGC
Penobscot Bay, as a deck officer on USCGC Dependable, and as an operations center
controller for the Eighth Coast Guard District, where he directed search and res-
cue, law enforcement and other Coast Guard operations in the Gulf of Mexico.
Contributors
Captain Neil Brown, Royal Navy, is a logistics officer and lawyer currently serving
as the lead Royal Navy lawyer and staff officer for the development of the Armed
Forces Act 2006, legislation that will merge the disciplinary systems of the Royal
Navy, Army and Royal Air Force. As a logistics officer he served on HMS Liverpool
and on HMS York for deployments to the Persian Gulf and South China Sea, and
for counterdrug operations. He also served as Logistics Commander of the aircraft
carrier HMS Illustrious and Group Logistics Commander for a UK carrier task
group that was deployed to the Persian Gulf to enforce the UN sanctions against
Iraq. During the deployment the task group was diverted to support UN forces in
Sierra Leone. His legal assignments include legal adviser to Commander-in-Chief
Fleet and at the United Kingdom's Permanent Joint Headquarters (PJHQ). During
his appointment at PJHQ he had the UK legal lead for operational-level coalition
planning for Operation Iraqi Freedom and he deployed in 2003 as legal adviser to
the UK National Commander for Operations in Iraq. Throughout 2004 at PJHQ
he was the senior military legal adviser to the Chief of Joint Operations on UK op
erations in Iraq and Afghanistan, the UK deployment in support of the UN Mis-
sion in the Democratic Republic of the Congo, a noncombatant evacuation from
the Ivory Coast and maritime operations, predominantly in the Arabian Gulf and
Horn of Africa. Captain Brown's next assignment will be as the Executive Assistant
to the First Sea Lord.
Professor Robin Churchill has been professor of international law at the Univer-
sity of Dundee (United Kingdom) since October 2006. Prior to that, he had been a
member of the staff of the Law School at Cardiff University for many years (latterly
as professor of law and Director of Postgraduate Studies). He has also worked at the
British Institute of International and Comparative Law and the University of
Tromso (Norway), and been a visiting fellow at the Centre for Maritime Policy,
University of Wollongong (Australia), and at the European University Institute in
Italy. Professor Churchill's main research interests are the international law of the
sea, international environmental law and human rights, on the first two of which
he has written widely. He is the author of three books, including The Law of the Sea
(with Professor Vaughan Lowe), and more than ninety journal articles and chap-
ters in edited books. Professor Churchill is a member of the editorial boards of the
British Year Book of International Law and International Journal of Marine and
Coastal Law.
Ms. Ashley Deeks serves as an attorney-adviser in the Office of the Legal Adviser at
the US Department of State. She currently works on issues related to the law of
armed conflict, including detention, conventional weapons and the legal
306
Contributors
framework for the conflict with al Qaeda. She also handles intelligence issues. In
previous positions at the State Department, Ms. Deeks advised on international
law enforcement, extradition and diplomatic property questions. From May to
December 2005, she served as the Embassy Legal Adviser at the US Embassy in
Baghdad during Iraq's constitutional negotiations. She has written several articles
on the Iraqi constitution and has served as an adjunct professor at Georgetown
Law Center, where she taught classes on international organizations. After gradu-
ating from the University of Chicago Law School, she clerked for Judge Edward
Becker on the Court of Appeals for the Third Circuit. Ms. Deeks is a term member
of the Council on Foreign Relations and will begin a Council on Foreign Relations
International Affairs Fellowship in November 2007.
Professor Yoram Dinstein is Professor Emeritus of International Law at Tel Aviv
University (Israel). He is a former President of the University, as well as former
Rector and former Dean of the Faculty of Law. Professor Dinstein served two ap-
pointments as the Charles H. Stockton Professor of International Law at the US
Naval War College. He was also a Humboldt Fellow at the Max Planck Institute for
International Law at Heidelberg (Germany), a Meltzer Visiting Professor of Inter-
national Law at New York University and a Visiting Professor of Law at the Univer-
sity of Toronto. Professor Dinstein is a Member of the Institute of International
Law and Vice President of Israel's national branch of the International Law Associ-
ation and of the Israel United Nations Association. He was also a member of the
Executive Council of the American Society of International Law. At present, he is a
member of the Council of the San Remo International Institute of Humanitarian
Law. He has written extensively on subjects relating to international law, human
rights and the law of armed conflict. He is the founder and editor of the Israel Year-
book on Human Rights. He is the author of War, Aggression and Self-Defence, now in
its 4th edition. Professor Dinstein's latest book is The Conduct of Hostilities under
the Law of International Armed Conflict.
Commodore Vicki McConachie, Royal Australian Navy, serves as Director Gen-
eral, Australian Defence Force Legal Services. Her naval service includes assign-
ments to HMAS Jervis Bay as the Deputy Supply Officer; to HMAS Platypus as the
Supply Officer; as Commanding Officer, HMAS Kuttabul; and Chief of Staff to the
Inspector General Australian Defence Force. As a legal officer she has served as
Fleet Legal Officer (two postings), Command Legal Officer and Deputy Staff Judge
Advocate and Chief of International Law in the Headquarters of Multi-National
Force Iraq. During the latter assignment, Commodore McConachie advised on in-
ternational and Iraqi law affecting operations, including matters dealing with
307
Contributors
reinforcing the rule of law in Iraq. She holds a Master of Laws degree, with a con-
centration on international and environmental law.
Captain John T. Oliver, JAGC, US Navy (Ret.), is an attorney-advisor on the staff
of the Office of Maritime and International Law at US Coast Guard headquarters.
Captain Oliver served for thirty years in the US Navy, initially as a line officer and
later as a judge advocate. As a line officer, he served on board USS Hunley (AS-31)
and USS Brumby (FF-1044). His assignments as a judge advocate include duty as an
ocean policy specialist on the Joint Staff (J-5) in the Pentagon; Executive Officer
and, later, Commanding Officer, Naval Legal Service Office, Newport; Deputy
Division Director for the International Law Division and Head, Law of the Sea
Branch in the Office of the Judge Advocate General; Deputy Assistant Judge Advo-
cate General (Administrative Law) and Ethics Officer for the Navy JAG Corps;
Chief Judge, Navy-Marine Corps Court of Criminal Appeals; and Officer in
Charge, US Sending State Office for Italy. Over the past fourteen years Captain Oli-
ver has taught graduate-level seminars in National Security and the Law of the Sea
at Georgetown University Law School, Washington College of Law, American
University and George Washington University Law School.
Captain Raul (Pete) A. Pedrozo, JAGC, US Navy, is the Staff Judge Advocate, US
Pacific Command. His previous assignments include duty as Force Judge Advocate,
Commander, Naval Special Warfare Command; Deputy Assistant Judge Advocate
General (International & Operational Law); Special Assistant to the Under Secre-
tary of Defense for Policy; Head, Law of the Sea Branch, International & Opera-
tional Law Division, Office of the Judge Advocate General; and Staff Judge
Advocate, Commander, Joint Task Force Provide Promise/Commander, US con-
tingent to the United Nations Protection Force in the former Yugoslavia. He has
served as the Chairman of the International Maritime Working/Drafting Group
developing the Guidelines for the Suppression of Illegal Transport of Migrants by Sea.
Captain Pedrozo has also served as the Department of Defense representative to
the President's Ocean Commission and to the National Academy of Sciences Ma-
rine Board.
Rear Admiral Horace B. Robertson Jr., JAGC, US Navy (Ret.), served in the US
Navy from 1945 to 1976, first as a general line officer (surface warfare) and later as a
law specialist and judge advocate. Included among his assignments were tours as
commanding officer of an amphibious landing ship, as Special Counsel to the Sec-
retary of the Navy, as Special Counsel to the Chief of Naval Operations, and succes-
sively as Deputy Judge Advocate General and Judge Advocate General of the Navy.
308
Contributors
Upon retirement from the Navy in 1976, he was appointed professor of law at
Duke University School of Law, where he taught mainly in the fields of torts and in-
ternational law. He also served as Senior Associate Dean from 1986 to 1989. He as-
sumed emeritus status in 1990. In 1991-92 he occupied the Charles H. Stockton
Chair of International Law at the US Naval War College. He is a graduate of the
Armed Forces Staff College and of the senior course of the US Naval War College.
Rear Admiral William L. Schachte Jr., JAGC, US Navy (Ret.), is Counsel to Blank
Rome LLP; Special Counsel to Tetra Tech EC, Inc.; and President/CEO of Lord and
Associates, LLC. Entering the Navy in 1964 as a line officer, his initial assignment
was to USS Lorain County (LST 1177) and then to US Naval Communications Sta-
tion, Puerto Rico. Rear Admiral Schachte served in combat from January to De-
cember 1968 as the Officer in Charge of a SWIFT boat (PCF 45) operating out of
Cam Ranh Bay. He also served as Executive/Operations Officer for Coastal Divi-
sion Fourteen, Republic of Vietnam. Rear Admiral Schachte's service as a judge ad-
vocate included duty as the Assistant Force Judge Advocate, Commander Naval
Surface Force, US Atlantic Fleet; in the Office of the Secretary of Defense, Interna-
tional Security Affairs, where he served as a member of the US delegation to the
Third UN Conference on the Law of the Sea; and as the Deputy Assistant Judge Ad-
vocate General (International Law), in which assignment he was additionally ap-
pointed as the Department of Defense (DoD) Representative for Ocean Policy
Affairs. In 1988, Rear Admiral Schachte was promoted to rear admiral (lower half)
and assigned as the Assistant Judge Advocate General of the Navy. He next served
as Commander, Naval Criminal Investigative Service Command. He was pro-
moted to rear admiral (upper half) on November 1, 1990 and also assumed duties
as Deputy Judge Advocate General of the Navy; Commander, Naval Legal Service
Command; and DoD Representative for Ocean Policy Affairs. In 1992 Rear Admi-
ral Schachte was appointed Acting Judge Advocate General of the Navy. He retired
in October 1993.
Professor Michael N. Schmitt is Professor of International Law at the George C.
Marshall European Center for Security Studies in Garmisch-Partenkirchen, Ger-
many and Director of the Program in Advanced Security Studies. Before joining
the Marshall Center faculty, Professor Schmitt served in the US Air Force for
twenty years. During his military career, he specialized in operational and inter-
national law and was senior legal adviser to multiple Air Force units, including
units conducting combat operations over northern Iraq. Formerly on the facul-
ties of the US Air Force Academy and US Naval War College, he also has been a
Visiting Scholar at Yale Law School and lectures regularly at the International
309
Contributors
Institute of Humanitarian Law and the NATO School. The author of many schol-
arly articles on law and military affairs and contributing editor for multiple vol-
umes of the US Naval War College's International Law Studies ("Blue Book")
series, his works have been published in Belgium, Chile, Germany, Israel, Italy,
Norway, Peru, Sweden, Switzerland, and the United States. Professor Schmitt
serves on the Editorial Boards of the International Review of the Red Cross and Year-
book of International Humanitarian Law, the Executive Committee of the Ameri-
can Society of International Law's Lieber Society, the Steering Committee for
Harvard University's International Humanitarian Law Research Initiative and as
Professorial Fellow at the University of Surrey's International Law Centre. Profes-
sor Schmitt has been appointed as the 2007-09 Charles H. Stockton Professor of
International Law at the US Naval War College.
Professor David Turns is a Lecturer in Law at the University of Liverpool. He has
previously taught in the Law Department of the London School of Economics and
Political Science and as a Visiting Professor in Vienna at the Institutfur Volkerrecht
und Internationale Beziehungen, Universitat Wien. In September 2007 he will be
taking up a post as Senior Lecturer in Laws of War at the Defence Academy of the
United Kingdom (Cranfield University). He specializes in public international law,
with particular emphasis on international humanitarian law and international
criminal law. He is an invited member of the International Humanitarian Law Dis-
cussion Group at the British Institute of International & Comparative Law, Lon-
don, and a contributor to the Group's forthcoming publication, British Perspectives
on thelCRC Customary Law Study. Professor Turns has published on several public
international law topics in a variety of journals in the United Kingdom and other
countries, including Australia, Austria and Germany. His latest publication is
"Weapons in the ICRC Study on Customary International Humanitarian Law,"
which appears in volume eleven of Journal of Conflict & Security Law (2006). His
next article will be "The 'War on Terror' through British and International Hu-
manitarian Eyes: Comparative Perspectives on Selected Legal Issues," to be pub-
lished in the New York City Law Review.
Brigadier-General Kenneth W. Watkin, Canadian Forces, is the Judge Advocate
General of the Canadian Forces. During his twenty-four years as a military legal of-
ficer, Brigadier-General Watkin has served as the Deputy Judge Advocate General/
Operations, Special Assistant to the Judge Advocate General and the Assistant
Judge Advocate General/Atlantic Region. He has also been the director of offices
dealing with human rights and information law, operational law, claims and civil
litigation, and training. His operational law experience has included service as a legal
310
Contributors
adviser to the Canadian Navy, advising Canadian commanders in Bosnia, and as
the Deputy Judge Advocate General/Operations at the time of the terrorist attacks
on September 11, 2001 and during a significant portion of the subsequent deploy-
ments in connection with the "Campaign Against Terrorism." He was the legal ad-
viser to a 1993 Canadian military/ civilian board of inquiry that investigated the
activities of the Canadian Airborne Regiment Battle Group in Somalia. From 1995
until 2005, he was counsel in respect to various investigations and inquiries arising
from the 1994 genocide in Rwanda. Brigadier- General Watkin is a widely pub-
lished author on a variety of operational law topics, including the law of armed
conflict, discipline and human rights.
Professor Guifang "Julia" Xue serves as the Director and Professor of the Institute
for the Law of the Sea, Ocean University of China (OUC). She received both her
bachelor and master degrees from the Ocean University of Qingdao (former
OUC), and her Ph.D. at the Centre for Maritime Policy, University of Wollongong,
Australia. Her thesis, Chinas Response to International Fisheries Law and Policy:
National Action and Regional Cooperation, has been published by Martinus Nijhoff
Publishers as part of the series Publications on Ocean Development. Professor Xue
has published widely on the 1982 United Nations Convention on the Law of the
Sea, international fisheries law and policy, China's ocean-related legislation and
management, marine environmental protection, and China's bilateral cooperation
with neighboring States, specifically with Japan, Korea and Vietnam. Recent arti-
cles have appeared in The International Journal of Marine and Coastal Law, Ocean
Development and International Law, Maritime Studies and China Marine Law Re-
view. She chairs governmentally funded projects for the drafting of national ma-
rine laws and regulations and provides consultancy on policy making on marine
issues to governmental agencies.
311
Index
Abu Ghraib 20, 161-162, 168-169, 179, 199, 216-217
accession xii,xiv, 18, 20-21, 31, 119-122, 139, 136
Additional Protocol I xv, xix-xx, 29-30, 174, 185, 187-188, 191, 195-196, 200, 212-215, 220,
227, 238, 254-255, 257, 260, 262, 291, 298-299
Additional Protocol II 181, 213, 217, 220
Afghanistan xvii, xix, 122, 161-169, 171-173, 175-178, 180-182, 192, 200, 205, 214, 228, 232,
252-253, 256-257, 259-261, 275, 278, 286-287, 297, 300-301, 306
al Qaeda 13, 41, 52-53, 162, 166-170, 172, 177, 179, 209-210, 216-217, 251-253, 275-276,
278-279, 286-287, 290
Al-Marri 180,209,219
Al-Skeini xvi, 174, 180, 200-206, 217-218
anti-personnel mine xix, 238-239, 242, 245, 254
armed conflict vii, ix, xiv, xxiii, 9, 163, 165-174, 177, 179-180, 183-184, 188, 191, 193-194,
200, 204-206, 209-216, 220, 227-228, 230-232, 236, 239, 243, 245, 252, 255-258, 262,
267, 271, 275, 291, 293, 295, 306-307, 311
Australia xix-xx, 9, 15, 28, 50, 63, 68, 78, 81, 83, 87-88, 95, 107, 227, 235-236, 238, 240-248,
260, 277-278, 294, 297, 306-307, 310-311
Automated Identification System 48, 53, 57-59, 77
B
Bankovic 202-203,218
Beirut 193,267-268,270,283,291
belligerent xv, 193-194, 201, 204-205, 211-212, 231, 255, 270
blockade 265, 270, 283, 289
Blue Economy 98-99
Blue Revolution 98
boarding 10, 14, 19, 48, 55, 61, 230, 233-234
Bohai Sea 98, 103, 108
Campaign Against Terror xviii, 174, 219, 251, 311
Canada xviii-xix, 9, 73, 92, 96, 125, 172, 175, 180, 243, 251-255, 257, 259-260, 262, 288
Canadian vi, xviii-xix, 51, 63, 78, 82, 93, 96, 175-176, 181, 240, 251-256, 258-262, 288, 310-
311
Caroline xxii, 10, 26, 252, 260, 277, 280, 288, 296, 301
China v, xiv, xviii, 7, 10, 29, 40, 46, 76, 78, 90-92, 95-110, 133, 135, 155, 278, 294, 306, 311
China Sea 91, 95, 98-102, 104, 107-109, 306
civilian protection 185,189-191,194-195
313
Index
coalition vii, ix, xvii-xxi, 19, 24, 163, 165, 169, 199-200, 225-233, 235-247, 251, 253-254, 256,
258-259, 261, 266, 269, 275, 278, 281, 290, 306
coalition operations vii, ix, xix-xxi, 225, 229, 233, 236-239, 241-242, 244-247, 251, 254, 258-259
Coast Guard xiii, 4, 9, 13, 16, 18-19, 21-23, 27, 31, 33, 48-49, 51, 54-55, 58-60, 63-65, 73-75,
77, 79, 81-83, 95, 122, 126, 132, 138, 234, 305, 308
coastal State xiv, 29, 35-37, 44, 48, 52, 58-59, 62, 67, 72, 82, 85-86, 88-89, 93-95, 97-100,
102-107, 109, 118, 147, 154, 156
collateral damage 185, 187, 192, 195, 244, 248, 253-254, 256
combatant xiv-xv, xix, xxiii, 9, 19, 164, 166-167, 170-172, 180, 183-184, 188-193, 196, 208-
209,211,231,238,245,306
Common Article 2 172,291
Common Article 3 xvi, xix-xx, 162, 164, 167, 170, 172-173, 209, 212, 215, 220, 252, 257
compulsory pilot 83,88
conditions of entry 37, 59
continental shelf 85, 91, 93-94, 99-100, 102, 104, 109, 1 12, 124-125, 134-135
contractor 163,191,233
Corfu Channel 286, 300
customary international law xii, xv, xvii-xviii, 35, 37, 61-62, 66, 99, 104, 116-118, 132, 150,
152, 155, 163, 172-173, 183, 188-189, 193, 220, 227, 238, 252, 254-255, 275, 280
D
deep seabed 99, 113-114, 123, 131, 133-135
detainee xv-xvii, xx, 161-165, 167, 169-173, 175-182, 189, 199-201,205-209,215-216,220,
226, 231-232, 240, 253-254, 257
developing countries 112,114
distinction xiv, xxiii, 58, 152, 163, 183-184, 190, 201, 208, 210, 227, 229, 291, 295
East Timor 145, 235, 243
EEZ 29,81,85-86,88-91,93-95,99-100, 102, 104-105, 107-110, 118, 121, 126, 132, 135-
136, 147, 150, 154, 156 (see also exclusive economic zone)
embargo 36, 71, 230
European Convention on Human Rights 151, 168, 173-174, 180-181, 201-205, 217-218, 232,
234, 237, 239, 247
exclusive economic zone 17,29,59,67-68,85,99, 118, 124, 132, 147, 154 (see also EEZ)
exploitation 30, 92, 94, 1 12-1 14, 124, 267
fisheries 11,58, 101-102, 104, 112,311
flag State xvii, 7, 37, 42, 47, 49, 55, 61, 64-65, 72, 146
force majeure 34, 61-63, 69, 82
foreign flag vessel 14
314
Index
freepassage 112,131,138
freedom of navigation xiii-xiv, 16-17, 42, 59, 66, 68-69, 106, 132, 135, 154
Gates, Raydon 167, 178-179, 236, 246-247, 249
Geneva Conventions of 1949 162, 165-166, 168, 200, 217, 220-221, 259 {see also Common
Article 2 and Common Article 3)
Geneva Convention III xvi, xxii, 167, 172, 215-217, 220
Geneva Convention IV xv, xx-xxi, 165, 189, 192, 294, 232, 294
global legal order ix, 8-9, 12, 19
Global War on Terror vi, xiv, xvi, xviii, 41, 53, 74, 161, 182, 199-200, 202, 204, 206, 208-210,
212-214, 216, 218, 220, 234, 251 (see also war on terror and war on terrorism)
global warming 1 1, 92
Guantanamo xvii, 164, 166-167, 169, 171, 231
H
Haiti 144-146
Hamdan 167, 169-172, 179-180, 208-210, 212, 214, 219-220, 257, 259, 262
Hamdi 170, 180
Hezbollah xxi-xxiii, 13, 265-276, 279-285, 288-295, 298-299
high seas xiv, 10,54,59,68,75,89, 105, 110, 112,114,146-147, 154, 156,252
hors de combat 184,210,267
human shields xv, 192-194, 198
I
immediacy xxii, 266, 280, 289
innocent passage 16, 66-69, 99, 103-104, 147, 149-150, 152, 154
insurgent 201, 214, 252, 254-256, 258
intelligence operation 116, 118
international armed conflict 163, 167, 172-173, 180, 183-184, 188, 191, 193-194, 204, 210-
214, 228, 231, 236, 239, 252-253, 255, 275, 293
International Committee of the Red Cross xv-xvi, 166-167, 172, 175, 180-181, 183, 188-191,
195,216,252,260,310
International Court of Justice xxii, 90, 152-153, 155-157, 204, 256, 274-275, 278-280, 283,
286, 289, 295, 297
International Criminal Court xv, 29-30, 184, 186, 195, 205, 218-219, 237, 247
International Maritime Organization xiii, 27, 45, 47, 49, 56-60, 67, 75, 77-78, 81, 83, 85-88,
93-95
International Seabed Authority 21, 116-117, 119, 135, 138
international strait 17, 29, 67, 88, 106, 1 12, 1 19, 147, 154
International Tribunal for the Law of the Sea 21, 90, 134, 150-152, 156
internee xx, 165-166, 226, 231-232
315
Index
interoperability 7, 27, 177, 229, 235, 240-242, 244, 246, 259
Iran 10, 50, 63, 122, 144, 267, 270, 272, 274, 281, 283, 286, 292, 295, 297-298
Iraq xvi-xvii, xx, 122, 144-146, 162-167, 169, 174, 179, 185, 197, 199, 201-203, 205, 207, 214,
216-217, 219, 225-227, 230-232, 239-240, 244-245, 251, 255-256, 261, 281, 300, 306-
309
Irish Republican Army 179,213,217
Israel vi-vii, ix, xiv, xxi-xxiii, 183, 185, 188-190, 192-196, 198, 200, 209-212, 214, 220, 257-
259, 262, 265-274, 276, 278-286, 288-296, 298-300, 307, 310
Israeli vi, xxi, xxiii, 193, 200, 209-210, 212, 214, 257-258, 265-274, 276, 278, 280-286, 288-
296, 298-300
J
Japan xiv, 40-41, 50, 63, 72, 78-79, 90-92, 99-102, 108-109, 135, 238, 278, 299, 311
jus ad bellum xx, 199, 216, 252, 266-267, 282-284, 289
jus in bello 252, 267, 282-283, 289, 291, 294
K
Kandahar 20, 176, 180,253
Karzai, Hamid 172, 180, 261
Kuwait 227,230
landmine xx, 226
law enforcement xii, xviii, xxii, 13, 23, 27-28, 34, 61, 150, 168, 192, 215, 252, 256, 259-260,
276-277, 279, 296, 305
law of armed conflict vii, ix, xiv, xxiii, 9, 165, 188, 194, 200, 204-206, 211-212, 214-216, 220,
227, 230-231, 245, 291, 293, 306-307, 311
law of the sea vii, ix, xi, xiii, 3, 9, 17, 29, 68, 82, 97, 102, 106, 1 12-1 14, 1 18-1 19, 123, 132, 230, 306
Law of the Sea Convention v-vi, xii, 1, 5, 9, 15, 21-23, 28, 31, 35, 70-71, 76, 80, 86, 90, 94, 97-
98, 100, 102, 104, 106-114, 117-126, 129-130, 132, 134, 136-140, 143, 150-152, 154-
1 56, 230, 234, 306, 308-309, 3 1 1 (see also LOS Convention)
lawfare 7, 17, 24
Lebanon vi-vii, ix, xxi-xxiii, 13, 180, 263, 265-268, 270-276, 278, 280-286, 288-296, 298-300
LOS Convention xii, xiv, xviii, 5, 12, 15, 17, 20-21, 23-24, 35, 47, 62, 66-68, 70, 72-73, 76,
82-83,86,88,93-95,97-99, 101-107, 109-110, 112, 114, 116-118, 120, 122-126, 129-
130, 133-134, 136, 139-140, 143-157 (see also Law of the Sea Convention)
Lugar, Richard 21, 122, 129, 136-137
M
Malone, James 80, 1 14-1 16, 123-124
maritime environment 232
316
Index
maritime interest 107,116
maritime security vii, ix, xiii, 6, 10-11, 13, 17, 23, 27, 33-34, 41-42, 57, 63, 65, 89, 98, 230
maritime strategy ix, xi-xii, 3-5, 9-20, 23, 27, 30
maritime zone 99-100, 102
military objective xiv-xv, 183-188, 191-194, 227, 236, 238, 248, 255, 261, 283, 298
mining vii, xix, xxiii, 22, 35, 59, 65-67, 117-118, 124, 131, 133-135, 151-152, 208, 230, 239-
240, 255, 297
N
NATO xix, 26, 151, 161-162, 168, 174-177, 181-182, 244, 254, 256, 261, 277, 296, 310
natural resources 100-101, 105, 109, 111, 114, 120, 135
navigational freedom xiii, 68, 85, 88, 131-132
navigational rights xviii, 19,94, 131, 143-148, 154
necessity xviii, xxii, 44, 62, 71, 101, 150, 210, 220, 266, 280-282, 284-285, 289
neutral 184-185, 191, 230, 258, 284, 288, 299
Nicaragua case xii, 71, 274-275, 279-280, 284, 295, 297-299
North Korea 14, 50, 53-54, 63, 78, 95, 107, 109, 122, 144, 146
Northern Ireland xvi, 168, 179, 200, 209, 213, 217, 220
nuclear weapons 43, 50-52, 54, 138
Nuclear Weapons case 185, 261, 280, 298-299
O
ocean floor 113, 117
Operation Change Direction vi, 265-267, 269, 273-274, 276, 279-283, 286, 288-291, 298
Operation True Promise 265, 269, 289-290, 298
Ottawa Convention xix, 226, 233, 237-239, 241-242, 245, 247, 254, 260
overflight 16-17, 105, 131-132, 135,277
Palestinian 192, 210-212, 218, 261, 267, 278, 291, 297
particularly sensitive sea area xiii, 83, 86-87, 95
peacekeeping xvii, 172, 174, 226, 239, 251
Persian Gulf 48, 135, 143, 253, 306
pirate 43
place of worship 185
PLO 267
pollution 29, 67, 86, 89-90, 94, 1 10
Posse Comitatus 27, 252
prisoner of war 161, 164, 166, 213, 215-216, 220, 232
privateers 39
Proliferation Security Initiative 14, 19, 24, 53-55, 79-80, 116-1 18, 136, 140, 155
propaganda 256
317
Index
proportionality xv-xvi, xviii-xix, xxii-xxiii, 163, 185-187, 192-193, 227-228, 230, 254, 256,
258, 266, 280, 282-285, 289, 298-299
protected person 166,192-194
Qiongzhou Strait 103, 108
R
ratification xii, 92, 99, 103-104, 106, 109, 1 14
Reagan, Ronald xii, 71,75, 114-115, 117-118, 121, 131, 133, 138
religious personnel 183,188
Rome Statute of the International Criminal Court xv, 29-30, 184, 186, 193, 195-197, 219, 237,
240, 247
rules of engagement xviii, xx-xxi, 28, 166, 226, 228-231, 233, 237, 241-243, 245-246, 258
sanctions xvii-xviii, 8, 34, 63, 71, 143-144, 146, 211, 230, 286-287, 300, 306
Saramati 152, 156-157, 174, 181
Scud 54, 185,281
sea power xi, 3, 22, 98
seabed xii, 99-100, 111-114, 116, 123-124, 131, 133-135
Seabed Authority 21, 116-117, 119, 121, 134-135, 138-139
Serbia 163,233,244
SOLAS 47-48, 58-59, 72, 76, 82, 86
Somalia 145,258,311
South Korea 40, 48, 53, 100-101, 109
sovereignty xii, xiv, xvii, xxii, 6, 24, 27-28, 36, 75, 93, 95-96, 99-100, 107-109, 1 13, 1 15-116,
121, 124, 135, 147, 151, 242, 291-292
Srebrenica 226, 233
Stephens, Dale 241-242, 244, 248-249
Syria 50, 267-270, 272, 274, 281, 283, 292
Taiwan xiv, 90-92, 96, 102, 107, 109
I aliban xxii, 163, 169, 172-173, 175-176, 180-181, 216-217, 253, 275-276, 278, 286-287, 290,
300-301
targeted killing xiv, 191-192,209,214
targeting ix, xvi, xix-xx, 163, 192, 195, 226, 228-229, 241, 243-245, 253-254, 256, 267, 283,
298-299
territorial sea 16,29,36-37,50,55,59-60,67,86, 100, 102-105, 108-110, 112, 117, 121, 135-
I J6, 144, 147-149, 154, 156
318
Index
trafficking xviii, 7, 12, 33, 49, 61, 144, 146
U
unlawful combatant xv, xix, 188-189, 196,209
V
Vietnam xiv, 90-92, 96, 99-101, 107-108, 309, 311
W
war on terror 132, 162, 177 (see also Global War on Terror and war on terrorism)
war on terrorism 14, 41-42, 132 (see also Global War on Terror and war on terror)
warfare xx, xxiii, 39, 132, 184-185, 190, 215, 252-253, 260, 308
warship 16-18, 36-37, 41, 50, 65, 71-72, 78, 82, 89, 91, 103-104, 147, 149, 153-154, 156, 269,
286, 289
weapons of mass destruction xviii, 6, 11, 14, 24, 28, 79, 117, 136, 144, 146, 149
Y
Yugoslavia 144, 146, 148, 211, 218, 275, 296, 308
319
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