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Full text of "The tanker war, 1980-88 : law and policy"

INTERNATIONAL LAW STUDIES 



Volume 74 



The Tanker War, 1980-88: 
Law and Policy 

George K. Walker 




Hi 



Naval War College 

Newport Rhode Island 

2000 



Library of Congress Cataloging-in-Publication Data 

Walker, George K., 1938- 

The tanker war, 1980-88 : law and policy/ George K. Walker, 
p. cm. -- (International law studies ; v. 74) 
Includes bibliographical references and index. 
ISBN 1-884733-14-X (he.) 

1. War, Maritime (International law) 2. Self-defense 
(International law). 3. Freedom of the seas. 4. Law of the sea. 
5. Hormuz, Strait of. 6. Merchant ships—Persian Gulf. 
7. Iran-Iraq War, 1980-1988-Naval Operations. I. Title. II. Series. 

JX1295 .U4 v. 74 
[KZ6563] 
341 s-dc21 
[955.05'42] 

00-056074 



INTERNATIONAL LAW STUDIES 

Volume 74 



Table of Contents 

Page 

FOREWORD xv 

PREFACE xvii 

CHAPTER I — INTRODUCTION 1 

Part A — Acknowledgments 2 

Part B — A Note on Sources 6 

Part C — Citation Format: Recurring Citations, Abbreviations, 

Acronyms 6 

Part D — Short Form Citation 7 

Part E — A Note for Readers and Reviewers 28 

CHAPTER II — THE TANKER WAR, 1980-88 33 

Part A — Prologue 34 

1. The United Kingdom and France; UK Interventions and 
Reactions 34 

2. The United States; Preliminary Gambits in the Gulf 35 

3. The Soviet Union 36 

4. Worldwide Dependence on Persian Gulf Oil and 
Foreign-Flag Shipping 36 

5. The Environment 37 

6. Geography of the Persian Gulf 37 

7. Vital Shipping Chokepoints 38 

Part B — The Course of the War and Others' Responses 39 

1. 1980: Opening Moves; First Efforts at Ending the War 40 

2. 1981: Efforts at Settlement; the Gulf States Organize 

the GCC 44 

3. 1982: More Efforts at Peacemaking; Iraq's Maritime 
Exclusion Zone 47 

4. 1983: Assault on the Environment; The UN Supports 
Freedom of Navigation 48 

5. 1984: Attacks on Tankers and Other Shipping; 

Responses 50 

6. 1985: War of the Cities Renewed; The Tanker War 
Continues; Heightened Responses 55 



vlii The Tanker War 



Page 

7. 1986: Boarding of Merchant Ships; Attacks on 

Shipping and Port Facilities 57 

8. 1987: Escalating US Involvement; Reflagging and 

Convoys; Attack on U.SS. Stark 59 

9. 1988: End Game: Intensity of Responses; Collapse 

and Ceasefire 67 

Part C — Conclusions 73 

1. The Tanker War 74 

2. The Marine Environment 76 

3. The Role of the United States and the Soviet Union 76 

4. The Role of International Organizations 77 

5. The Ensuing Chapters 78 

CHAPTER III — CLAIMS TO MINIMUM WORLD PUBLIC ORDER 

ON THE OCEANS 107 

Part A — UN Charter Norms; Related Issues 108 

1. Norms Stated in the Charter 108 

a. The Preamble, Purposes and Principles of the Charter . . . 108 

b. The Inherent Right of Self-Defense Under 

Article 51; Other Concepts 120 

2. Related Issues 161 

a. State of Necessity and Self-Preservation in the 

Charter Era 161 

b. Retorsion 163 

Part B — UN Mechanisms for Breaches of the Peace, Threats 

to the Peace, and Aggression 163 

1. Making the Rules and Stating the Principles: 

The Security Council 163 

a. The Korean War 164 

b. Arab-Israeli Conflicts 164 

c. Rhodesia: 1965-79 167 

d. India-Pakistan: 1965, 1971 170 

e. Falklands/Malvinas: 1982 170 

f. The Iran-Iraq Conflict and the Tanker War, 1980-88. ... 170 

g. Appraisal of Security Council Lawmaking 173 

2. Making the Rules and Stating the Principles: 

The General Assembly 175 

a. The UFP Resolution 175 

b. Concurrent Action with the Council 177 

c. Appraisal for the Tanker War 178 



Contents ix 



Page 
3. The Constitutive Process of Decisionmaking in the 

Charter Era 178 

a. Implementation: Original Intent and Trends 178 

b. Regional Arrangements Under the Charter 179 

c. The Work of Nongovernmental Organizations and 

the Tanker War 180 

Part C — Maritime Neutrality in the Charter Era 180 

1. Neutrality, 1928-41, and in the Charter Era; 
"Non-Belligerency" 181 

2. The Law of Neutrality in the Context of UN Action 

Under the Charter 186 

3. Appraisal of Neutrality in the Charter Era 189 

Part D — Sources of the Law, Principles of the Law of 

Treaties and Treaty Succession 189 

1. Principles of the Law of Treaties and Treaty Succession ... 190 

2. War and Termination or Suspension of Treaty Obligations . . 190 

3. The LOS Conventions and the Law of Armed Conflict: 

"Other Rules" Clauses 191 

Part E — Conclusions 192 

CHAPTER IV — CLAIMS RELATED TO THE LAW 

OF THE SEA (LOS) 241 

Part A — The Charter, the LOS and the Law of Armed 

Conflict (LO AC) 241 

1. The LOS and the LOAC 242 

2. Relationship of the 1982 LOS Convention and 

Other LOS-Related Treaties 244 

3. The 1982 LOS Convention and the Tanker War 245 

Part B — Claims to Oceans Use 245 

1. Trends in Claims to Ocean Usages on the High Seas 246 

2. Trends in Claims of Restrictions on High Seas Rights: From 
Fisheries to the EEZ 247 

a. From Fishery Claims to Sovereignty Claims to the EEZ 
Concept 247 

b. Conclusions 252 

c. High Seas Fisheries, EEZs, Pipelines, 
Freedoms of Navigation and Overflight, and the 

Tanker War 252 

3. The Regime of the Continental Shelf in the Persian Gulf . . . 254 
a. Developments Since World War II 255 



x The Tanker War 



Page 

b. Conclusions 258 

c. The Continental Shelf in the Persian Gulf and 

the Tanker War 259 

4. The Territorial Sea and the Contiguous Zone 260 

a. Analysis: From a Three-Mile Rule to a Twelve-Mile Norm 
Under the 1982 LOS Convention 260 

b. Conclusions 268 

c. The Territorial Sea, the Contiguous Zone and 

the Tanker War 268 

5. Access to Ports, Roadsteads and Internal Waters 269 

a. Analysis 269 

b. Conclusions 277 

c. The Tanker War and Access to and from 

Inland Waters and Ports 278 

6. Passage Through International Straits: The Strait 

ofHormuz 278 

a. Straits Connecting High Seas or EEZ Areas 279 

b. Passage Through the Strait of Hormuz 281 

c. Conclusions 284 

Part C — Nationality of Ships, Cargo and Other Interests 285 

1. Defining "Ships" 285 

2. Ownership in Merchant Ships and Cargoes; Crews; 

Insurance 286 

3. Nationality of Merchant Vessels 291 

4. Warships; Other Public Vessels 295 

5. Ocean Transit in Company; Warship Formation 

Steaming; Convoys 297 

6. The Tanker War: Analysis 298 

Part D — General Conclusions and Appraisal for the 

Law of the Sea 301 

1. High Seas Freedoms: Navigation and Overflight 302 

2. EEZs, Fishing and the Continental Shelf in the 

Persian Gulf 302 

3. The Territorial Sea and Contiguous Zone in the Persian Gulf; 
Entry into Neutral Ports 303 

4. Passage Through the Strait of Hormuz 303 

5. Merchantmen and Warships: Reflagging and 

Other Issues 304 

6. Final Thoughts 305 



Contents xi 



Page 

CHAPTER V — THE TANKER WAR AND THE LAW OF ARMED 

CONFLICT (LOAC) 349 

Part A — Basic Principles: Necessity and Proportionality; 

ROE; the Spatial Dimension 350 

1. Necessity and Proportionality in Self-Defense and 

in the Conflict Context 352 

2. The Temporal Factor: When Does Liability Accrue? 354 

3. Rules of Engagement (ROE) 354 

4. The Spatial Dimension 355 

5. Necessity, Proportionality, ROE and the Spatial 

Dimension in the Tanker War 356 

Part B — Visit and Search; Capture, Destruction or Diversion . . . 357 

1. Visit and Search Pursuant to the Law of Naval Warfare .... 357 

2. Visit and Search: Tanker War Issues 362 

3. Projections for the Future 364 

Part C — Belligerents' Seaborne Commerce; Belligerents' 

Convoys 365 

1. The Law of Naval Warfare and Belligerents' 

Seaborne Commerce 365 

2. Acquiring Enemy Character 377 

3. Convoying by Belligerents 377 

4. Principles of Contraband 377 

5. The Tanker War. 377 

Part D — Neutral Flag Merchantmen: Enemy Character; 

Reflagging; Contraband 380 

1. Vessels and Aircraft that Have or Acquire 

Enemy Character 380 

2. The Effect of Reflagging 382 

3. Contraband Issues 382 

4. The Tanker War 387 

Part E — The Law of Blockade and the Tanker War 389 

1. The UN Charter and the Law of Blockade 389 

2. Blockade Under the Law of Naval Warfare 389 

3. The Tanker War and the Law of Blockade 392 

Part F — Zones: Excluding Shipping, Aircraft from Area of 

Belligerents' Naval Operations; High Seas Self-Defense 

Zones; War Zones; Air Defense Identification Zones; 

Ocean Zones Created for Humanitarian Law Purposes . . 394 



xii The Tanker War 



Page 

1. Excluding Shipping and Aircraft from Immediate 
Areas of Belligerents' Naval Operations; 

High Seas Self-Defense Zones (SDZs) 395 

a. Excluding Shipping and Aircraft from Immediate 

Areas of Belligerents' Naval Operations 395 

b. High Seas Self-Defense Zones (SDZs) 398 

c. Other Self-Defense and UN Charter Issues for SDZs .... 400 

2. War Zones 403 

3. Air Defense Identification Zones (ADIZs) 410 

4. Ocean Zones Created for Humanitarian Law Purposes .... 412 

5. The Tanker War 413 

Part G — Weapons and Weapons Use; Mine Warfare 416 

1. Conventional Weapons Use, Apart From Mine Warfare . . . . 417 

2. Mine Warfare 418 

3. Mine Warfare Principles and the Tanker War 419 

Part H — Other Humanitarian Law Issues 421 

1. Merchant Ship Crews Trapped in the Shatt al-Arab at the 
Beginning of the War 421 

2. Rescue of Those in Peril on the Sea 422 

3. Neutrals' Repatriation of Belligerent Armed Forces 

Members 423 

Part I — Deception During Armed Conflict at Sea: Ruses 

and Perfidy 424 

1. Legitimate Ruses of War and Actions Constituting Perfidy . . 424 

2. Ruses and Perfidy During the Tanker War 427 

Part J — General Conclusions and Appraisal; 

Projections for the Future 429 

1. Basic Principles: Necessity and Proportionality; ROE; 

the Spatial Dimension 429 

2. Visit and Search; Capture, Destruction or Diversion 430 

3. Belligerents' Seaborne Commerce; Belligerents' Convoys . . . 431 

4. Neutral Flag Merchantmen; Enemy Character; Reflagging; 
Contraband 432 

5. The Law of Blockade and the Tanker War 432 

6. Zones 433 

7. Weapons and Weapons Use; Mine Warfare 434 

8. Other Humanitarian Law Issues 434 

9. Deception During Armed Conflict at Sea: Ruses 

and Perfidy 435 

10. Summing Up: Projections for Future Conflicts 435 



Contents xiii 



Page 

CHAPTER VI — THE TANKER WAR AND THE MARITIME 

ENVIRONMENT 481 

Part A — Not a New Phenomenon 483 

Part B — Charter Law, The Law of the Sea, The Law of 

the Maritime Environment, and the Law of Armed 

Conflict 484 

1: The UN Charter and the Environment 485 

2. The 1982 LOS Convention and Environmental Protection . . 486 

a. The Relationship Between the 1982 LOS Convention 

and Other Environmental Treaties 486 

b. "Other Rules" Clauses in the Conventions 487 

c. The LOS Convention and Provisions Governing 

the Maritime Environment 489 

d. General Conclusions on the Law of the Sea, the Law 
of the Marine Environment, and the Law 

of Naval Warfare 499 

3. Environmental Standards During Armed Conflict at Sea . . . 500 

a. The Law of Naval Warfare as Part of the LOAC; 
Protection of the Environment 500 

b. Final Thoughts 535 

c. The San Remo Manual; Other Analyses of the Place of the 
Environment During War 536 

d. The ICRC Guidelines for Military Manuals 539 

e. NWP 1-14M and Environmental Protection During 

Armed Conflict 540 

4. The Tanker War; Proposed Resolution of Issues Raised 
by the San Remo Manual, the ICRC Guidelines 

and NWP1-14M 540 

a. The Specifics of the Proposed Analysis 542 

b. Method of Analysis 542 

c. The Content of Due Regard; Factors to be Considered . . . 544 

d. Testing the Proposed Analysis 546 

e. Conclusions 552 

Part C — General Conclusions and Projections for the Future. . . . 553 

1. The Proliferation of Players 557 

2. The Right to a Clean Environment as a Human Right 558 

3. The Carryover of Land Warfare Concepts, Particularly 

from Protocol I 559 



xiv The Tanker War 



Page 

4. A New Treaty to Protect the Environment During 

Armed Conflict? 559 

5. Final Thoughts 559 

CHAPTER VII — GENERAL CONCLUSIONS AND APPRAISAL: 

POLICY AND LAW 605 

Part A — Self-Defense, Charter Law and Neutrality Issues 606 

PartB — The Law of the Sea and the Tanker War 609 

Part C — The Tanker War and the Law of Armed Conflict 610 

1. Basic Principles: Necessity and Proportionality; ROE; 

the Spatial Dimension 610 

2. Visit and Search; Capture, Destruction or Diversion 612 

3. Belligerents' Seaborne Commerce; Belligerents' 

Convoys 613 

4. Neutral Flag Merchantmen: Enemy Character; 

Reflagging; Contraband 613 

5. The Law of Blockade and the Tanker War 614 

6. Zones: Excluding Shipping, Aircraft from Area of 
Belligerents' Naval Operations; High Seas Defense 
Zones; War Zones; Air Defense Identification 
Zones; Ocean Zones Created for 

Humanitarian Law Purposes 615 

7. Weapons and Weapons Use: Mine Warfare 616 

8. Other Humanitarian Law Issues 617 

9. Deception During Armed Conflict at Sea: Ruses 

and Perfidy . 618 

Part D — The Tanker War and the Law of the Maritime 

Environment 618 

Part E — Projections for the Future 620 

1. Geopolitical and Other Trends Emerging During 

the Tanker War 620 

2. Developments in the Law: Trends for the Future 623 

3. Final Thoughts 625 

INDEX 629 



FOREWORD 

The International Law Studies "Blue Book" series was initiated by the Naval 
War College in 1901 to publish essays, treatises and articles that contribute to the 
broader understanding of international law. This, the seventy-fourth volume of 
the series, publishes The Tanker War 1980-88: Law and Policy, written by George 
K. Walker, Professor of Law, Wake Forest University School of Law. Professor 
Walker has served as the Charles H. Stockton Professor of International Law at the 
Naval War College (1992-93) and is a retired Captain in the U.S. Naval Reserve. 

This volume provides an in-depth analysis of the legal issues surrounding the 
"Tanker War" between Iran and Iraq, with a focus on law of the sea, the law of 
armed conflict, the UN Charter, and environmental issues. In addition to discuss- 
ing the legal aspects of the conflict, there is a summary of the factual record of the 
Tanker War and a general prologue of the history of the Arabian Gulf. Professor 
Walker's work is a significant contribution to the literature on this subject. His 
meticulous and thorough research ensures it will be a standard reference for its 
study. While the positions and opinions expressed in this volume are those of the 
author and are not necessarily those of the United States Navy or the Naval War 
College, the work provides valuable insights into international law developments 
experienced in the Iran-Iraq War. 

The Tanker War was brought to publication with the assistance of the Naval War 
College's Oceans Law and Policy Department. Professor Emeritus Jack Grunawalt 
provided invaluable service by volunteering his time as editor. On behalf of the 
Secretary of the Navy and the Chief of Naval Operations, I extend to Professor 
Walker and the others who participated in the development of this publication my 
gratitude and thanks. 



aSc. CEBROWSKI 
Vice Admiral, U.S. Navy 
President, Naval War College 



PREFACE 

The Tanker War 1980-88: Law and Policy, written by George K. Walker, Profes- 
sor of Law, Wake Forest University School of Law, is the culmination of a process 
that began over ten years ago. Professor Walker conducted research and wrote the 
book while maintaining a schedule as a full-time law professor, in addition to his 
many other personal and professional obligations. He brings an extensive interna- 
tional law background to this subject. Besides his teaching responsibilities in the 
field of international law and admiralty at Wake Forest, he served as the Charles H. 
Stockton Professor of International Law at the Naval War College during the 
1992-93 academic year. He also was a participant in the development of the San 
Remo Manual, a contemporary restatement of the law applicable to armed conflicts 
at sea. The Oceans Law and Policy Department of the Center for Naval Warfare 
Studies, Naval War College is indebted to Professor Walker for the superb scholar- 
ship exhibited in this volume. 

The International Law Studies "Blue Book" series is published by the Naval 
War College and distributed throughout the world to academic institutions, li- 
braries, and both U.S. and foreign military commands. The Tanker War will greatly 
enhance the series by presenting an insightful work on a topic previously not fully 
addressed. 

Thank you again to Professor Walker and the others who assisted in the devel- 
opment and publication of this volume. We also extend our sincere thank you to 
Dr. Alberto Coll, the Dean of the Center for Naval Warfare Studies, for his support 
of the "Blue Book" series. 



Dennis Mandsager 
Professor of Law 
Chairman, Oceans Law 
and Policy Department 



Chapter I 



INTRODUCTION 



This book has taken better than a decade to research and write. Soon after the 
Iran-Iraq conflict began in 1980, I began to study the war. That conflict 
ended in 1988, and it was succeeded by the Gulf War, whose active hostilities be- 
gan in August 1990 and ended in early 1991, although final resolution of that war, 
like the 1980-88 conflict, may be decades in coming. 

Factual accounts of the Iran-Iraq war, and its maritime component, the Tanker 
War, were scattered among many sources. Unlike wars in which the United States 
or other States that are open societies are belligerents, access to primary accounts 
from either Iran or Iraq were difficult to find. The large number of partici- 
pants — ranging from the UN Security Council and Secretary-General through 
multinational organizations to individual countries and nongovernmental orga- 
nizations, whose pronouncements, although critical, were often difficult to 
find — also made building a solid factual foundation difficult. It was only with pub- 
lication of The Iran-Iraq War (1980-1988) and the Law of Naval Warfare and The 
Tanker Wars that I could be sure that a relatively complete factual record could be 
consulted. Media reports and summaries appeared soon after events, but these 
books and the first round of analysis required a cross-check for accuracy and com- 
pleteness. 

The law itself was also in transition. Protocol I to the 1949 Geneva Conventions 
was signed in 1977, and today it is virtually universally applicable as treaty law, al- 

n 

though the United States has not ratified it. In 1980 the Conventional Weapons 
Convention and its Protocols were signed, and today have many States as parties, 

including the United States for all but one of its Protocols. These treaties for the 

i 9 » • 

most part do not apply to war at sea, but they restate principles — e.g., discrimina- 
tion, proportionality, necessity — applying to all warfare. In 1982 the UN Con- 
vention on the Law of the Sea (LOS) was signed, and today it is moving toward 
universal acceptance, with an amending protocol, to replace the 1958 LOS Con- 
ventions; thus far the United States has not ratified it. However, many countries, 
including the United States, accept the LOS Convention navigational articles as 
restatements of customary law. 

Important secondary sources also matured during the war and are now gener- 
ally available. In 1987 the Restatement (Third), Foreign Relations was published, and 
it may have influence like its predecessor Restatement (Second). In 1987 Naval 
Warfare Publication (NWP) 9 was also published; it was the first complete revi- 
sion of the US Navy's law of war manual since NWIP 10-2, first published in 1955. 
Capping nearly a decade of conferences, the San Remo Manual, the first of its kind 



2 The Tanker War 



since the 7973 Oxford Manual on the law of naval warfare, was published in 1995. 

17 

Besides these sources, the new treaties generated commentaries comparable to 

1 8 

Pictet's respected series on the 1949 Geneva Conventions. 

It is therefore hoped that a combination of a more complete factual record and, 
at least for the time being, a more stable format of international law will make this 
book useful for general and academic readers. 

I began research on the war in 1980, continued it through a semester of aca- 
demic leave and as I could while carrying a full academic schedule at Wake Forest 
University and coping with post-Vietnam War tumult in academia, which had rip- 
ple effects for a decade. I completed most of the basic research and writing during 
and after service as Charles H. Stockton Professor of International Law at the Na- 
val War College, Newport, R.I., truly an outstanding experience, for which I re- 
main grateful. 

Chapter II B summarizes the factual record of the Tanker War; a general pro- 
logue of the history of the Persian Gulf precedes it in Chapter II A. Chapter III ap- 
plies the law of the UN Charter to the conflict; a short summary of other factors 
that may govern during war, e.g., the impact of armed conflict on treaties, is in 
Chapter III D. Chapter IV focuses on LOS issues that applied during the war, e.g., 
straits passage. Chapter V examines law of armed conflict (LOAC) issues in the 
Tanker War. Chapter VI explores issues affecting the Persian Gulf environment 
during the war. A general summary and conclusion follows in Chapter VII. 

Parts of this book have appeared in other publications. In some cases the prior 
text has been published, and in most situations references are given to prior publi- 
cations. 

Part A. Acknowledgments 

There are many who have helped with the thinking, research and writing oiThe 

Tanker War 1 980-88: Law and Policy. John Donne rightly wrote that no one is an is- 

21 
land, and this applies to this book's preparation. 

My first and greatest debt is owed my wife, Phyllis, and our children, Charles 
and Mary Neel, who endured many times when I was engrossed in thinking, re- 
search and writing during graduate study and absences at libraries, carrels, offices 
and elsewhere. Part of the personal experience for preparing The Tanker War was 
duty with the US Navy, with which I was privileged to serve with Atlantic Fleet de- 
stroyer forces (1959-62) and in the Naval Reserve (1957-59, 1962-89). From 1966 
until retirement in 1 989, my family supported absences for Naval Reserve duty as a 
line officer that took me away at least two weeks a year and more weekends and 
other times than they or I would like to remember. 

My father, J. Henry Walker, never saw active military service. He held an Army 
commission for a time after World War I and before World War II. He was too 
young for the First World War and too senior for the Second World War. In the 



Introduction 3 



family tradition, he was active in Civil Defense during World War II and taught 
physics to Army Air Force cadets while teaching premedical studies at the Univer- 
sity of Alabama. He had been prevailed upon by the President of the University to 
stay on and teach future doctors for that war. He encouraged my brother, Lieuten- 
ant Commander Rufus H. Walker, USNR, and me to seek naval commissions and 
was never more proud of his sons than when my brother chose a naval career and I 
remained in the active reserves through the Cold War. I remain grateful for his in- 

22 

sights that grew more meaningful as I matured and for his supporting my deci- 
sion to enter academic life. Cancer claimed my brother in mid-career, but his sea 
service stories added to thoughts for this book. 

At the University of Alabama several great teachers quickened my interest in 
the larger world, its history, politics and diplomacy, and unconsciously directed 
me toward an eventual career in the law. These included John F. Ramsey, one of 
the truly great teachers and mentors for many at the University and for whom an 
annual student award is given to this day; Captain Hubert E. Mate, USNR, profes- 
sor and College of Arts and Sciences assistant dean, an academic and Navy mentor; 
Commander John S. Pancake, USNR, professor of history and another Navy men- 
tor who introduced me to diplomatic history; and Walter H. Bennett, a demanding 
member of the political science department, who immersed me in political theory. 

At Duke University Harold T. Parker, who with William Newton supervised 
my history master's thesis on the Franklin Roosevelt - Winston Churchill corre- 
spondence, 1939-41, taught me how history moves and insisted on the highest aca- 
demic standards in researching the thesis. Many years later, another Duke faculty 
member encouraged my study of the law of naval warfare. Rear Admiral Horace B. 
Robertson, Judge Advocate General's Corps, USN and Judge Advocate General of 
the Navy, later a Duke law faculty member and vice dean, has my special thanks. 

From my Vanderbilt University law school experience, I remember the excel- 
lent grounding that Professor and Dean John W. Wade gave me. My teacher and 
now colleague and friend Harold G. Maier encouraged my study of international 
law there and has supported my academic career since then. I also mention 
Vanderbilt's great teacher of conflict of laws, Elliott E. Cheatham, who knew my 
grandfather when he practiced law in Georgia and my grandfather was a superin- 
tendent of schools. He opened my eyes to thinking factorially in ways reflected in 
this book, particularly Chapter VI. 

Service as US District Court law clerk to John D. Butzner, Jr., now Senior US 
Circuit Judge for the US Court of Appeals for the Fourth Circuit, and as a trial law- 
yer with what is today the law firm of Hunton & Williams in Richmond, Virginia, 
was probably the best postgraduate education I could have asked for. George C. 
Freeman, Jr., who had active naval service on U.S.S. Wasp; Lewis F. Powell, Jr., 
who saw distinguished World War II service and was later an Associate Justice of 
the Supreme Court of the United States; H. Merrill Pasco, General of the Army 



4 The Tanker War 



George C. Marshall's aide; Lewis T. Booker, later promoted Brigadier; and Robert 
F. Brooks, were among the outstanding lawyers with and for whom I worked. With 

23 

that kind of leadership by example, excellence was the expected norm. 

A decision and commitment to legal education led me to the University of Vir- 
ginia School of Law, and I am grateful for the wonderful intellectual growth expe- 
rience the Master of Laws program gave me. I express thanks to great teachers and 
research supervisors, all of whom became good friends and colleagues: A.E. Dick 
Howard, White Burkett Professor of Law and Public Affairs; Richard B. Lillich, 
late Howard W. Smith Professor and a Stockton Professor of International Law at 
the Naval War College; and John Norton Moore, director of the graduate program 
and Walter L. Brown Professor. The Virginia law library supported my masters in 
law and later research, and I remain grateful to the late Frances Farmer and her 
staff for support they gave. 

At the Yale Law School while on sabbatical I came to know W. Michael 
Reisman. Michael, then Wesley N. Hohfeld Professor of Jurisprudence, and today 
Myres S. McDougal Professor of International Law, has supported my work 
through the years. I also remain grateful for the comments and support of Myres S. 
McDougal, Sterling Professor of Law Emeritus, and for a particular insight that 
Eugene F. Rostow, Emeritus Dean and Sterling Professor of Law, gave me. My un- 
cle, Rufus C. Harris, later a law dean and university president, always reflected the 
broad base of J.S.D. work he did at Yale after returning as a wounded World War I 
veteran, and his experience and example were reasons I wanted to research there. 
Lastly, I remain grateful for the facilities of the Yale Law and Sterling Libraries 
and their support. 

To recount names of those within the sea services who influenced my thinking 
during 32 years of enlisted and commissioned service would fill a volume. Often I 
learned great truths from, or was inspired by, those with whom I served, who led 
me, or whom I was privileged to lead. Two must be mentioned. Captain J. Ashley 
Roach, Judge Advocate General's Corps, US Navy (Ret.), and I met just after my 
time at Yale. He suggested the developing Middle East situation would be interest- 
ing research, and so it was. During my 1992-93 appointment as Charles H. 
Stockton Professor of International Law at the Naval War College, I gained Rich- 
ard J. Grunawalt, Captain, Judge Advocate General's Corps, US Navy, (Ret.), and 
now Emeritus Professor and former Director of the Oceans Law and Policy De- 
partment of the College's Center for Naval Warfare Studies (CNWS), as a great col- 
league and friend. I remain grateful for his positive leadership, encouragement and 
insistence on the highest standards of scholarship. Jack was principal editor of this 
volume. He was ably assisted by Lieutenant Colonel James E. Meyen, U.S. Ma- 
rine Corps. 

Three Naval War College Presidents are owed a special debt of thanks. Rear Ad- 
miral Joseph C. Strasser, US Navy, was President during my Stockton year. 



Introduction 5 



Admiral Strasser solidly supported my teaching and research at the College; he 
cared about people as he led the College. His leadership will not be forgotten. Rear 
Admiral James R. Stark, US Navy, who succeeded Admiral Strasser as President, 
has also supported the College's law program. Vice Admiral Arthur K. Cebrowski, 
US Navy, succeeded Admiral Stark and wrote the Foreword for this book. Within 
the College, I remain grateful for comments, insights, research suggestions and 
corrections of Professors Grunawalt and Dennis Mandsager, current Oceans Law 
and Policy Department Chairman, and his staff. Dr. Robert S. Wood, former Dean 
of the CNWS, has my thanks for his research suggestions, comments and insights. 
I also express thanks to Hugh Lynch, Captain USN (Ret.), of the CNWS faculty, 
for reading Chapter II for factual accuracy. The Nation remains in good hands, due 
in part to the administrative, academic, military and moral leadership of these ded- 
icated people. 

Wake Forest University generously gave me leave to attend Yale, to accept the 
Stockton appointment, and for research. I express special thanks to a good friend 
and colleague, Edwin G. Wilson, Emeritus Provost and Professor of English, like 
me a Reserve destroyer officer (but separated by a few years in time of service, al- 
though shipboard experiences we shared were remarkably alike). I remain grateful 
for the support and counsel of Dean and Professor J. Donald Scarlett, who laid the 
foundation of the reputation the law school enjoys. 

Other libraries besides those at Yale helped with research. At Wake Forest Uni- 
versity, Professor Thomas M. Steele and the staff of the Worrell Professional Cen- 
ter Library that houses the law library deserve thanks for support and unfailing 
help in obtaining unusual sources that were so important. I am also grateful for the 
resources of the University's Reynolds and Army ROTC Libraries. At the Naval 
War College Robert E. Schnare, Director of its Library, and his staff deserve equal 
thanks. Dean Wood helped me obtain a carrel for research summers after the 
Stockton appointment, which enabled me to continue my studies. The Redwood 
Library, Newport, and the Winston-Salem - Forsyth County libraries lent books. 

Behind every academic there is a wonderful secretary. Peggy W. Brookshire has 
been my mainstay for so many years and so many projects that we have given up 
counting. Besides voluminous correspondence, work with me on editing several 
books, public service projects with bar associations, appellate briefs, class assign- 
ments, and similar papers, she prepared sheafs of correspondence, fitness reports 
and other documents when I commanded Naval Reserve units. She typed many 
drafts and helped prepare the manuscript for this book. As the sea service signal 

25 

has it, "Bravo Zulu." I also express thanks to the secretarial staff at the Naval War 
College who helped with my research manuscripts there, particularly Virginia 
Lautieri and Lucy Dunlea. 

Truly, no academic is an island. 



6 The Tanker War 



Part B. A Note on Sources 

US Senator Hiram Johnson said in 1917 that the first casualty of a war is truth. 
Oliver Wendell Holmes, Associate Justice of the Supreme Court of the United 

28 

States, said that a word is the skin of a living thought, and that a page of history is 

29 r 

worth a volume of logic. My good friend, the late Myres McDougal, emphasized 
that a writer's observational standpoint must be taken into account. These truths 
are important in this book. Recent history is difficult to research and write. Only 
after a decade has separated the end of the war have more complete and relatively 
balanced accounts begun to appear. Many contemporary reports appear to be mis- 
dated, misstated, or sometimes wrong, and this at times applies to government 
sources. Another problem is the language and availability of sources. I am not 
versed in Farsi or Arabic, and many sources may be only in those languages. Many 
critical sources lie hidden in government archives, to be revealed only after several 
decades, if at all. Even when fundamental documents, e.g., treaties, will be pub- 

31 

lished is less than clear, owing to publication lags and national security. The 

32 

same can be said for deducing custom and objections to claims. More has been 
written from Iran and Western sources; whether the archives of Iraq and the for- 
mer USSR will ever be available is less than certain. Even readily available and reli- 
able sources, e.g., the Foreign Relations of the United States (FRUS), appear only after 
decades to protect national security, and they are necessarily selective. The same 
can be said for the digests; the 1980-88 Digest of the Reagan Administration is only 
in its third volume. 

The factual account, and the history of foreign and domestic policies, are there- 
fore necessarily less than absolutely complete or accurate. I have tried to distill out 
rhetoric and bias but may not have always succeeded. My own intellectual bias as 
an academic lawyer, my cultural bias as an American, my prior experiences, e.g., as 
a serving line officer in the US Navy and later as a Naval Reservist, may have af- 
fected the story of the war in Chapter II and succeeding chapters of legal analysis. 

Nevertheless, I hope that this analysis will be helpful. 

Part C. Citation Format: Recurring Citations, Abbreviations, Acronyms 

Although this volume conforms generally to another "bluebook," short form 
citations, abbreviations and acronyms replace full citations for recurring refer- 
ences (e.g., LOS for law of the sea; LOAC for law of armed conflict); institutions 
(CMI, Comite Maritime Internationale); States, e.g., the United Kingdom (UK) or 
the United States (US); international organizations, e.g., the United Nations (ab- 
breviated to UN); or, occasionally, agencies, e.g., the International Committee of 
the Red Cross (acronymed ICRC). For short form citations listed below, references 
to published sources have been omitted; to conserve space, periods have been 
omitted from commonly used citations. For example, a "bluebook" citation, 



Introduction 7 



United Nations Convention on the Law of the Sea, Dec. 10, 1982, art. 311(1), U.N. 
Doc. A/CONF.62/122 (1982), 1833 UNTS 3, reprinted in 21 I.L.M. 1261, 1327 
(1982), appears as LOS Convention, art. 31 1(1). A treaty not listed below might be 
cited as, e.g., Treaty on Protection of Artistic & Scientific Institutions & Historic 
Monuments, Apr. 15, 1935, arts. 1-3, 49 Stat. 3267, 3268-70, 167 LNTS 289, 290 
(Roerich Pact). Acronyms and abbreviations are parenthetically defined when 
first used, unless meaning is obvious. Acronyms and abbreviations in quotations, 
or words in quotations that would otherwise be subject to acronyming or abbrevia- 
tion, have not been changed, except to include an explanatory parenthetical where 
meaning is not obvious. 

Certain citation formalities have been shortened. Most treaties not listed below 
are referenced to the article or other material cited, preceded by a note where they 
first appear, rather than repetitive citation of, e.g., "UST at . . . ," or "UNTS at. . ..". 

37 

Letters, e.g., do not follow the "from . . . to" rubric, "letter" follows the writer or 
the writer's title. Government officials' titles have been abbreviated; e.g., the 
United States Permanent Representative to the United Nations is cited as "US UN 
Permanent Representative." Treaty titles omit superfluous articles and substitute 
"&" for "and." 38 

Reference signals, supra, infra and hereinafter, have been eliminated insofar as 

39 

possible. Material cited to a reprint source is designated as in" instead of "re- 
printed in. ' When cited within the same chapter, notes to previous or future mate- 
rial are cited, as, e.g., "n. 2 or Part B". If cited from another chapter, a reference will 
read, e.g., "n. II. 2," meaning the second note in Chapter II. Similarly, a Part cited 
from Chapter II will read, e.g., "Part II B". More than one note is abbreviated to 
"nn." The word "at," interposed between note numbers and page numbers, has 
been deleted except where needed for clarity. Book titles and authors are printed in 
large and small caps. Article titles and like material are printed in italics. The ob- 
jective is to combine information with brevity, any style manual's goal. 

Part D. Short Form Citation 

Abbreviation or Acronym Full Citation 

ADIZ Air Defense Identification Zone. 

AFP 110-31 United States Department of the Air Force, 

International Law — The Conduct of Armed 
Conflict and Air Operations: AFP 110-31 

(1976). 

AGL Above ground level. 

AJIL American Journal of International Law. 



8 The Tanker War 



AJIL Supp. 
Alexandrov 

AMC 

American Foreign Policy 

ASIL Proc. 



AWACS 
Benedict 

Bevans 



BFSP 

Birnie & Boyle 

Bothe et al 

Bowett, Self-Defence 

Bowman & Harris 



Brierly 
Brown 



American Journal of International Law, 
Supplement. 

Stanimar A. Alexandrov, 
Self-Defense Against the Use of 
Force in International Law (1996). 

American Maritime Cases. 

American Foreign Policy: Current 
Documents (year follows abbreviated 
citation). 

Proceedings of the Annual Meeting of the 
American Society of International Law; 
year of annual meeting precedes citations; 
publication dates omitted. 

Airborne Warning and Control System. 

Benedict on Admiralty (7 th ed. rev., 
Frank L. Wiswall, Jr., ed. 1999), volumes 
6-6F. 

Charles I. Bevans, Treaties and Other 
International Agreements of the United 
States of America 1776-1949 (13 v. 
1968-76). 

British Foreign & State Papers. 

Patricia W. Birnie & Alan E. Boyle, 
International Law and the 
Environment (1994). 

Michael Bothe et ai, New Rules for 
Victims of Armed Conflict (1982). 

D.W. Bowett, Self-Defence in 
International Law (1958). 

M.J. Bowman & D.J. Harris, 
Multilateral Treaties: Index and 
Current Status (1984; 11 th Cum. Supp. 
1995). 

J.B. Brierly, The Law of Nations 
(Humphrey Waldock ed., 6 th ed. 1963). 

E.D. Brown, The International Law 
OF THE Sea (2 v. 1994). Volume 1 supplies 
analysis; volume 2 reprints documents; 
unless otherwise indicated, citation to 
Brown refers to volume 1. 



Introduction 9 



Brownlie, International 
Law 

Brownlie, Use of Force 



BSFHV 

Bulletin 
BYBIL 

Cable 

CENTCOM 
CFR 

Chubin & Tripp 

1969 Civil Liability Convention 



Coll & Arend 



Colombos 
COLREGS 



Continental Shelf Convention 

Convention on Maritime 
Neutrality 

Conventional Weapons 
Convention 



Ian Brownlie, Principles of Public 
International Law (4 th ed. 1990). 

Ian Brownlie, International Law and 
the Use of Force by States (1963). 

Bochumer Schriften zur Friedenssicherung 
und zum Humanitaren Volkerrecht. 

Department of State Bulletin. 

British Yearbook of International 
Law. 

James Cable, Gunboat Diplomacy 
1919-1991 (3d ed. 1994). 

US Central Command. 

Code of Federal Regulations. 

Shahram Chubin & Charles Tripp, Iran 
and Iraq at War (1988). 

Convention on Civil Liability for Oil 
Pollution Damage, Nov. 29, 1969, 973 
UNTS 3, supplemented by Protocol, Nov. 
19, 1976, in 16 ILM 617 (1977). 

Alberto R. Coll & Anthony C. Arend, 
The Falklands War: Lessons for 
Strategy, Diplomacy and 
International Law (1988). 

C. John Colombos, The International 
Law of the Sea (6 th rev. ed. 1967). 

Collision Regulations, the short form of 
rules of the nautical road found in treaties 
like, e.g., Regulations for Preventing 
Collisions at Sea, July 15, 1972, 28 UST 
3459, 1050 UNTS 16. 

Convention on the Continental Shelf. Apr. 
29, 1958, 15 UST 471, 499 UNTS 311. 

Convention on Maritime Neutrality, Feb. 
20, 1928, 47 Stat. 1989, 135 LNTS 187. 

Convention on Prohibitions or Restrictions 
on Use of Certain Conventional Weapons 
Which May Be Deemed Excessivily 
Injurious or to Have Indiscriminate Effects, 
Oct. 10, 1980, TIAS , 1342 UNTS 137. 



10 The Tanker War 



2 CORDESMAN & WAGNER 



3 CORDESMAN & WAGNER 



Covenant on Civil & Political 
Rights 

Covenant on Economic, Social 
& Cultural Rights 

CTS 



Cultural Property Convention 



CYBIL 



DE GUTTRY & RONZITTI 



Definition of Aggression 



Dekker & Post 
Digest 



2 Anthony H. Cordesman & Abraham 
R. Wagner, The Lessons of Modern 
War (1990). 

3 Anthony H. Cordesman & Abraham 
R. Wagner, The Lessons of Modern 
War (1990). 

International Covenant on Civil & Political 

Rights, Dec. 16, 1966, TIAS , 999 

UNTS 1. 

International Covenant on Economic, 
Social & Cultural Rights, Dec. 16, 1966, 993 
UNTS 3. 

Consolidated Treaty Series, publishing 
treaties between 1648 and 1920, the start of 
LNTS. 

Convention for Protection of Cultural 
Property in Event of Armed Conflict & 
Protocol, May 14, 1954, 249 UNTS 215. 

Canadian Yearbook of International 
Law. 

Andrea de Guttry & Natalino 
Ronzitti, The Iran-Iraq War 
(1980-1988) and the Law of Naval 
Warfare (1993). 

Definition of Aggression, G.A. Res. 3314, 
UN GAOR, 29 th Sess., UN Doc. A/Res/3314 
(1974). Because of a reprint error in the 
Resolution, art.3(d), 69 AJIL 480, 482, 
reprint citation is to the draft version in UN 
General Assembly Special Committee on 
the Question of Defining Aggression, 
Report of the Working Group, UN Doc. 
A/AC.134/L.46 (1974), in 13 ILM 710 
(1974). 

Ige F. Dekker & Harry H.G. Post, The 
Gulf War of 1980-88 (1992). 

Digest of United States Practice in 
International Law; published since the 
annual volume for 1973; successor to 
WHITEMAN. Year covered precedes citation. 
The rule for citing this digest has not been 
followed with particularity. 42 



Introduction 1 1 



Dinstein 

Dispatch 

1972 Dumping Convention 



ENMOD Convention 



Environmental Protection 



First Convention 



Fishery Convention 

FON 

Fourth Convention 

Fragments Protocol 

Franklin 

FRG 



Yoram Dinstein, War, Aggression and 
Self-Defence (2d ed. 1988). 

US Department of State Dispatch. 

Convention on Prevention of Marine 
Pollution by Dumping of Wastes & Other 
Matter, Dec. 29, 1972, 26 UST 2403, 1046 
UNTS 120. 

Convention on Prohibition of Military or 
Any Other Hostile Use of Environmental 
Modification Techniques, May 18, 1977, 31 
UST 333, 1108 UNTS 152. 

Glen Plant, Environmental 
Protection and the Law of War: A 
"Fifth" Geneva Convention on the 
Protection of the environment in 
Time of Armed Conflict (1992). 

Convention for the Amelioration of the 
Condition of Wounded & Sick in Armed 
Forces in the Field, Aug. 12, 1949, 6 UST 
3114, 75 UNTS 31. 

Convention on Fishing & Conservation of 
Living Resources of the High Seas, Apr. 29, 
1958, 17 UST 138, 559 UNTS 285. 

Freedom of navigation, an acronym used in 
naval operations. 

Convention Relative to Protection of 
Civilian Persons in Time of War, Aug. 12, 
1949, 6 UST 3516, 75 UNTS 287. 

Protocol on Non-detectable Fragments 

(Protocol I), Oct. 10, 1980, TIAS , 

1342 UNTS 168. 

Carl M. Franklin, The Law of the 
Sea: Some Recent Developments (Nav. 
War C. Int'l L. Stud., v. 53, 1961). 

Federal Republic of Germany, now part of 
Germany; see Walker, Integration and 
Disintegration 8-9, 



12 The Tanker War 



Friendly Relations Declaration 



FRUS 



1971 Fund Convention 



G.A. Res. 



GCC 



Geneva Gas Protocol 



Gilmore & Black 
Goodrich et al 
Green 
Grunawalt 

Hackworth 



Declaration on Principles of International 
Law Concerning Friendly Relations & 
Co-Operation Among States in Accordance 
with the Charter of the United Nations, 
G.A. Res. 2625, UN GAOR, 25 th Sess., 
Supp. No. 28 , UN Doc. A/8028 (1970), in 9 
ILM 1292 (1970). 

Foreign Relations of the United 
STATES (preceded by year number and 
volume number bracketed if more than one 
was issued for that year; publication dates 
omitted). 

Convention on Establishment of an 
International Fund for Compensation for 
Oil Pollution Damage, 1110 UNTS 57. 

UN General Assembly Resolution, for 
which UN Document numbers have been 
generally omitted. Resolutions have been 
cross-referenced to reprint sources, e.g., 
ILM. 

Gulf Cooperation Council, formed in 1981 
by Bahrain, Kuwait, Oman, Qatar, Saudi 
Arabia and the UAE. 

Protocol for Prohibition of Use in War of 
Asphyxiating, Poisonous or Other Gases, & 
of Bacteriological Methods of Warfare, June 
17, 1925, 94 LNTS 65, with US no-first-use 
reservation, Dec. 16, 1974, 26 UST 571-72. 

Grant Gilmore & Charles L. Black, 
Jr., The Law of Admiralty (2d ed. 1975). 

Leland F. Goodrich et al., Charter of 
the United Nations (3d ed. 1969). 

L.C. Green, the Contemporary Law of 
Armed Conflict (1993). 

Targeting Enemy Merchant Shipping 
(Nav.War C. Int'l L. Stud., v. 65, 
Richard J. Grunawalt ed. 1993). 

Green H. Hackworth, Digest of 
International Law (7 v. 1940-43). The 
rule for citing digests has not been followed 
with particularity. 43 



Introduction 13 



1899 Hague II Hague Convention (II) with Respect to 

Laws and Customs of War on Land, July 
29, 1899, 32 Stat. 1803. 

1899 Hague III Hague Convention (III) for Adaptation to 

Maritime Warfare of Principles of the 
Geneva Convention of 22 August 1864, 32 
Stat. 1827. 

Hague II Hague Convention (II) Respecting 

Limitation of Employment of Force for 
Recovery of Contract Debts, Oct. 18, 1907, 
36 Stat. 2241. 

Hague III Hague Convention (III) Relative to 

Opening of Hostilities, Oct. 18, 1907, 36 
Stat. 2259. 

Hague IV Hague Convention (IV) Respecting Laws 

and Customs of War on Land, Oct. 18, 
1907, 36 Stat. 2227. 

Hague V Hague Convention (V) Respecting Rights 

and Duties of Neutral Powers and Persons 
in Case of War on Land, Oct. 18, 1907, 36 
Stat. 2310. 

Hague VI Hague Convention (VI) Relating to Status 

of Enemy Merchant Ships at Outbreak of 
Hostilities, Oct. 18, 1907, 205 CTS 305, 
Schindler & Toman 791. 

Hague VII Hague Convention (VII) Relating to 

Conversion of Merchant Ships into 
War-Ships, Oct. 18, 1907, 205 CTS 319, 
Schindler & Toman 797. 

Hague VIII Hague Convention (VIII) Relative to 

Laying Automatic Submarine Contact 
Mines, Oct. 18, 1907, 36 Stat. 2332. 

Hague IX Hague Convention (IX) Concerning 

Bombardment by Naval Forces in Time of 
War, Oct. 18, 1907, 36 Stat. 2351. 

Hague X Hague Convention (X) for Adaptation to 

Maritime Warfare of Principles of the 
Geneva Convention, 36 Stat. 2371. 

Hague XI Hague Convention (XI) Relative to Certain 

Restrictions with Regard to Exercise of the 
Right of Capture in Naval War, Oct. 18 
1907, 36 Stat. 2396. 



14 The Tanker War 



Hague XIII 



Hague Air Rules 



Hague Radio Rules 



Harvard Draft Convention on 
Agression 

Harvard Draft Convention on 
Naval & Aerial War 

1 von Heinegg 



2 von Heinegg 



Helsinki Accords 



Helsinki Principles 



High Seas Convention 



HlRO 



Hague Convention (XIII) Concerning 
Rights and Duties of Neutral Powers in 
Naval War, Oct. 18, 1907, 36 Stat. 2415. 

Commission of Jurists to Consider and 
Report Upon the Revision of the Rules of 
Warfare, Hague Rules for Air Warfare, Feb. 
19,1923, in Schindler & Toman 207. 

Commission of Jurists to Consider and 
Report Upon the Revision of the Rules of 
Warfare, Hague Rules for Control of Radio 
in Time of War, Feb. 19, 1923, in LAW OF 
Naval Warfare 367. 

Harvard Draft Convention on Rights & 
Duties of States in Case of Aggression, 
1939, 33 AJIL 819 (Supp. 1939). 

Harvard Draft Convention on Rights and 
Duties of Neutral States in Naval & Aerial 
War, 1939, 33 AJIL 16 (Supp. 1939). 

Wolff Heintschel von Heinegg, Visit, Search, 
Diversion, and Capture in Naval Warfare: 
Part I, The Traditional Law, 29 CYBIL 283 
(1991). 

Wolff Heintschel von Heinegg, Visit, Search, 
Diversion, and Capture in Naval Warfare: 
Part II, Developments Since 1945, 30 CYBIL 
89(1992). 

Conference on Security & Co-Operation in 
Europe, Final Act, Aug. 1, 1975, in 14 ILM 

1292(1975). 

International Law Association Committee 
on Maritime Neutrality, Final Report: 
Helsinki Principles on Maritime Neutrality, in 
International Law Association, Report of 
the Sixty-Eighth Conference Held at 
Taipei, Taiwan, Republic of China 24-30 
May 1998, at 496 (1998). 

Convention on the High Seas, Apr. 29, 
1958, 13 UST 2312, 450 UNTS 82. 

Dilip Hiro, The Longest War: The 
Iran-Iraq Military Conflict (1991). 



Introduction 15 



Hyde 



ICAO Convention 



ICJ 

ICLQ 
ICO 



ICRC 

ILA 

ILM 

ILR 

IMCO 

IMO 

Incendiary Weapons Protocol 



1-3 Charles Cheney Hyde, 
International Law Chiefly as 
Interpreted and Applied by the 
United States (3d ed. 1945-47). 

Convention on International Civil Aviation 
(Chicago Convention), Dec. 7, 1944, 61 Stat. 
1 180, 15 UNTS 295; see also Protocol on 
Authentic Trilingual Text of Convention 
on International Civil Aviation with Annex, 
Sept. 24, 1968, 19 UST 7693, 740 UNTS 
21;Proces-verbal of Rectification to 
Protocol, 20 id. 718; there are numerous 
amendments and protocols to the ICAO 
Convention, most of which are not relevant 
to this analysis, and many of which are not 
in force for some or all States. See BOWMAN 
& HARRIS 110-11; id. 168 (Cum. Supp. 
1995); TIF 380-81. 

International Court of Justice (the "World 
Court," successor to the PCIJ in 1945); 
abbreviation for reports of its decisions. 

International & Comparative Law 
Quarterly. 

Islamic Conference Organization, created 
by Charter of the Islamic Conference 
Organization, Feb. 28, 1973, 914 UNTS 
111. 

International Committee of the Red Cross. 

International Law Association 

International Legal Materials. 

International Law Reports. 

International Maritime Consultative 
Organization, later renamed International 
Maritime Organization (IMO). 

International Maritime Organization, 
formerly International Maritime 
Consultative Organization (IMCO). 

Protocol on Prohibitions or Restrictions on 
Use of Incendiary Weapons (Protocol III), 
Oct. 10, 1980, 1342 UNTS 171. 



16 The Tanker War 



INCSEA 



INCSEA Agreement 



INCSEA Protocol 



1917 Instructions 



1969 Intervention Convention 



Intervention Protocol 



Joyner 

KARSH 

Keesing 

Key Resolutions 

Law of Naval Warfare 



Levie, Code 
Liber Amicorum 



Acronym for agreements between States to 
regulate navigation and other behavior of 
their warships, State aircraft and other 
platforms. See, e.g., INCSEA Agreement & 
INCSEA Protocol. 

Agreement on Prevention of Incidents On 
and Over the High Seas, May 25, 1972, 
USSR-US, 23 UST 1168, 852 UNTS 151. 

Protocol to Agreement of May 25, 1972 on 
Prevention of Incidents On and Over the 
High Seas, May 22, 1973, USSR-US, 24 
UST 1063. 

US Department of the Navy, Instructions 
Governing Maritime Warfare: June 1917 
(1918). 

Convention Relating to Intervention on the 
High Seas in Cases of Oil Pollution 
Casualties, Nov. 29, 1969, 26 UST 765, 970 
UNTS 211. 

Protocol Relating to Intervention on the 
High Seas in Cases of Marine Pollution by 
Substances Other than Oil, Nov. 2, 1973, 
TIAS 10561, 13 ILM 605 (1974). 

The Persian Gulf War: Lessons for 
Strategy, Law, and Diplomacy 
(Christopher C. Joyner ed. 1990). 

Efraim Karsh, The Iran-Iraq War: 
Impact and Implications (1989). 

Keesincs Contemporary Archives. 

Dietrich Rauschning et al., Key 
Resolutions of the United Nations 
General Assembly 1946-1996(1997). 

Natalino Ronzitti, The Law of Naval 
Warfare: A Collection of 
Agreements and Documents with 
Commentaries (1987). 

1-2 Howard S. Levie, The Code of 
International Armed Conflict (1986). 

The Law of Military Operations: 
Liber Amicorum Professor Jack 
Grunawalt (Nav. War C. Intl L. 
STUD., v. 72, Michael N. Schmitt ed. 1998). 



Introduction 17 



Lieber Code 



LNTS 
LOAC 

London Declaration 



1930 London Naval Treaty 



1936 London Naval Treaty 



London Protocol 



LONW 

LOS 

1958 LOS Conventions 

LOS Convention 

LOW 

MacChesney 



United States, Instructions for the 
Government of Armies of the United States 
in the Field, General Orders No. 100 (Apr. 
24, 1863), in SCHINDLER & TOMAN 3. 

League of Nations Treaty Series. 

Law of armed conflict, synonymous with 
law of war (LOW). 

Declaration Concerning Laws of Naval 
War, Feb. 26, 1909, 208 CTS 338, in 
Schindler & Toman 843, 3 AJIL Supp. 
179(1909). 

Treaty for Limitation and Reduction of 
Naval Armaments, Apr. 22, 1930, 46 Stat. 
2858, 112 LNTS 65. 

Treaty on Limitation of Naval Armaments, 
Mar. 25, 1936, 50 Stat. 1363, 184 LNTS 115. 

Proces-Verbal Relating to Rules of 
Submarine Warfare Set Forth in Part IV of 
Treaty of London of 22 April 1930 [arts. 
22-23, 46 Stat. 2858, 2881-82, 112 LNTS 65, 
88], Nov. 6, 1936, 3 BEVANS 298, 173 LNTS 
353. 

Law of naval warfare, a component of the 
LOAC or LOW. 

Law of the Sea. 

Territorial Sea Convention; Continental 
Shelf Convention; High Seas Convention; 
Fishery Convention. 

UN Convention on the Law of the Sea, Dec. 
10, 1982, 1833 UNTS 3, 397. 

Law of war, synonymous with law of armed 
conflict (LOAC). ' 

Brunson MacChesney, Situation, 
Documents and Commentaries on 
Recent Developments in the Law of 
the Sea (Nav. War. C. Int'l Stud., v. 51 
1957). 



18 The Tanker War 



MacDonald 



Mallison 



MARPOL 73/78 



Matheson, Remarks 



McDougal & Burke 



MCDOUGAL & FELICIANO 



McDougal, Lasswell & 
Chen 



McNair 
MCRM 



Charles G. MacDonald, Iran, Saudi 
Arabia and the Law of the Sea: 
Political Interaction and Legal 
Development in the Persian Gulf 
(1980). 

W. Thomas Mallison, Submarines in 
General and Limited Wars (Nav. War 
C. Int'l L. Stud., v. 58, 1968). 

Protocol of 1978 Relating to Convention for 
Prevention of Pollution from Ships, 1973, 
Feb. 17, 1978, 2 WALLACE 1916, TIAS 
incorporating by reference Convention for 
Prevention of Pollution from Ships, Nov. 2, 
1973, id. 1834, 12 ILM 1319 (1973). 

Michael J. Matheson, Remarks, in Session 
One: The United States' Position on the 
Relation of Customary International Law to the 
1977 Protocols Additional to the Geneva 
Conventions, in Symposium, The Sixth 
Annual American Red Cross - Washington 
College of Law Conference on International 
Humanitarian Law: A Workshop on 
Customary International Law and the 1977 
Protocols Additional to the 1949 Geneva 
Conventions, 2 Am. U.J. Int'l L. 419 (1987). 

Myres S. McDougal & William T. 
Burke, The Public Order of the 
Oceans: A Contemporary 
International Law of the Sea (1962). 

Myres S. McDougal & Florentino 
Feliciano, Law and Minimum World 
Public Order (1961). 

Myres S. McDougal, Harold 
Lasswell & Lung-Chu Chen, Human 
Rights and Minimum World Public 
Order (1980). 

Lord McNair, The Law of Treaties (2d 
ed. 1961). 

US Department of Defense, Maritime 
Claims Reference Manual: DOD 
Publication 2005. 1M (1987). 



Introduction 19 



Mine Protocol 



Moore 



Moore, Arbitrations 



Naff, Gulf Security 
Naff, The Iran-Iraq War 

NATO 

1900 Naval War Code 

NAVIS & HOOTEN 



Nicaragua Case 

nm or NM 
Nordquist 



Protocol on Prohibitions or Restrictions on 
Use of Mines, Booby Traps & Other 
Devices (Protocol II), Oct. 10, 1980, TIAS 

, 1342 UNTS 168, as amended, May 3, 

1995, 35 ILM 1206 (1996). 

John Bassett Moore, A Digest of 
International Law (8 v. 1906). The rule 
for citing digests has not been followed with 
particularity. 44 

John Bassett Moore, History and 
Digest of the International 
Arbitrations to Which the United 
States has Been a Party, Together 
with Appendices Containing the 
Treaties Relating to Such 
Arbitrations, and Historical and 
Legal Notes (6 v. 1898). 

Gulf Security and the Iran-Iraq War 
(Thomas Naff ed. 1985). 

Thomas Naff, The Iran-Iraq War: 
Implications for US Policy (1985). 

North Atlantic Treaty Organization. 

US Naval War Code of 1900, in Naval 
War College, International Law 
Discussions, 1903 (1904). 

Martin S. Navis & E.R. Hooten, 
Tanker Wars: The Assault on 
Merchant Shipping During the 
Iran-Iraq Crisis, 1980-1988 (1996). 

Military & Paramilitary Activities in & 
Against Nicaragua (Nicar. v. US), 1986 ICJ 
14. 

Nautical mile(s). 

This multivolume series, edited by Myron 
H. Nordquist, has different authors or 
editors; volume numbers precede 
abbreviated citations: 

1 Myron H. Nordquist, United Nations 
Convention on the Law of the Sea 1982: A 
Commentary (1985). 



20 The Tanker War 



NOTAM 
NOTMAR 
NWC Rev. 



NWIP 
NWIP 10-2 

NWP 



2 Myron H. Nordquist, United Nations 
Convention on the Law of the Sea 1982: A 
Commentary (Satya N. Nandan et al. ed. 
1993). 

3 Satya N. Nandan & Shabtai Rosenne, 
United Nations Convention on the Law of 
the Sea 1982: A Commentary (Myron H. 
Nordquist ed. 1995). 

4 Myron H. Nordquist et al., United 
Nations Convention on the Law of the Sea: 
A Commentary (1991). 

5 Myron H. Nordquist, United Nations 
Convention on the Law of the Sea: A 
Commentary (Shabtai Rosenne & Louis B. 
Sohn eds. 1989). 

Notice to Airmen. 

Notice to Mariners. 

Naval War College Review. Review 
articles analyzing international law issues 
have been reprinted in READINGS IN 
International Law from the Naval 
War College Review 1947-1977 (Nav. 
WAR C. INT'L L. STUD., v. 61 & 62, Richard 
B. Lillich & John Norton Moore ed. 1980) 
and Readings on International Law 
from the Naval War College Review 
1978-1994 (Nav. War C. Intl L. Stud., v. 
68, John Norton Moore & Robert F. Turner 
ed. 1994). Parallel citations to these 
volumes have not been added in chapters 
that follow. Articles on international law 
published after 1994 and articles dealing 
with other topics, e.g., military operations, 
are not included in the INTERNATIONAL 
Law Studies reprints, and resort to the 
Review is necessary. 

Naval Warfare Information Publication. 

US Department of the Navy, Law of Naval 
Warfare: NWIP 10-2 (1955 through Change 
6, 1974). 

Naval Warfare Publication. 



Introduction 21 



NWP 1-14M 



NWP1-14M Annotated 



NWP 9 



NWP 9A Annotated 



Nyon Arrangement 

Nyon Supplementary 
Agreement 

OAU 



O'Connell, Influence of 
Law 

O'Connell, Law of the sea 



ODIL 

1954 Oil Pollution Convention 



1962 Oil Pollution Convention 
Amendments 

OPEC 



US Department of the Navy, The 
Commander's Handbook on the Law of 
Naval Operations: NWP 1-14M/MCWP 
5-2.1/COMDT PUB P5800.1 (1995). 

Naval War College Oceans Law and Policy 
Department, Annotated Supplement to the 
Commander's Handbook on the Law of 
Naval Operations: NWP 1-14M/MCWP 
5-2.1/COMDT PUB P5800.1 (1997). 

US Department of the Navy, The 
Commander's Handbook on the Law of 
Naval Operations, NWP 9 (1987). 

US Department of the Navy, Annotated 
Supplement to the Commander's 
Handbook on the Law of Naval Operations: 
NWP 9 (Rev. A)/FMFM 1-10 (1989). 

Nyon Arrangement, Sept. 14, 1937, 181 
LNTS 137. 

Agreement Supplementary to the Nyon 
Arrangement, Sept. 17, 1937, 181 LNTS 
151. 

Organization of African Unity, created by 
Charter of Organization of African Unity, 
May 25, 1963, 479 UNTS 39. 

D.P. O'Connell, The Influence of Law 
on Sea Power (1975). 

D.P. O'Connell, The International 
LAW OF THE SEA (Ivan A. Shearer ed.; v. 1, 
1982; v. 2, 1984). 

Ocean Development & International Law. 

Convention for Prevention of Pollution of 
the Sea by Oil, May 12, 1954, 12 UST 2989, 
327 UNTS 3; amendments, Apr. 11, 1962, 
17 id. 1523, 600 UNTS 332; Oct. 21, 1969, 
2Sid. 1205. 

1962 Amendments to 1954 Convention for 
Prevention of Pollution of the Sea by Oil, 
Apr. 11, 1962, 17 UST 1523, 600 UNTS 332. 

Organization of Petroleum Exporting 
Countries. 



22 The Tanker War 



Oppenheim 



1 Oppenheim (1955) 



1880 Oxford Manual 



Oxford Naval Manual 



Paris Declaration 
PCIJ 

PlCTET 

Pilloud, Commentary 



1973 Pollution Convention 

PRC 

Proceedings 

Protection of the 
Environment 



This multivolume series has different 
editors; volume numbers precede 
abbreviated citations: 

1 Oppenheim's International Law 
(Robert Jennings & Arthur Watts eds., 8 th 
ed. 1992). 

2 Lassa Oppenheim, International 
LAW (Hersch Lauterpacht ed., 7 th ed. 1952). 

1 Lassa Oppenheim, International 
LAW (Hersch Lauterpacht ed. 1955). 

Institute of International Law, The 
Laws of War on Land (1880), in 
Schindler & Toman 35. 

Institute of International Law, The 
Laws of Naval War Governing the 
Relations Between Belligerents: 
Oxford Manual on Naval Warfare 
(Aug. 9, 1913), in Schindler & Toman 
857. 

Declaration Respecting Maritime Law, Apr. 
16, 1856, 115 CTS 1. 

Permanent Court of International Justice 
(the "World Court," 1920-45, succeeded by 
the ICJ). 

1-4 Jean S. Pictet, The Geneva 
Conventions of 12 August 1949 
(1952-60). 

Claud Pilloud, Commentary on the 
Additional Protocols of 8 June 1977 
to the Geneva Conventions of 12 
AUGUST 1949 (Yvez Sandoz etal ed. 1987). 

Convention for Prevention of Pollution 
from Ships, 1973, 12 ILM 1319 (1973). 

People's Republic of China. 

U.S. Naval Institute Proceedings. 

Protection of the Environment 
During Armed Conflict (Nav. War C. 
INT'L L. STUD., v. 69, Richard J. 
Grunawalt, et al. ed. 1996). 



Introduction 23 



Protocol I 



Protocol II 



Public Papers 



Rajaee, IRANIAN PERSPECTIVES 



Rajaee, Iran-Iraq War 



RCADI 



RDJTF 



Restatement (Second) 



Restatement (Third) 



Roach & Smith 



Robertson 



Robertson, New LOS 



Protocol Additional to Geneva Conventions 
of 12 August 1949, & Relating to Protection 
of Victims of International Armed Conflicts 
(Protocol I), June 8, 1977, 1125 UNTS 3. 

Protocol Additional to Geneva Conventions 
of 12 August 1949, & Relating to Protection 
of Victims of Non-International Armed 
Conflicts (Protocol II), June 8, 1977, 1125 
UNTS 609. 

Public Papers of the Presidents of the 
United States (volume number precedes, 
and president's surname and document year 
follow, abbreviated citation). 

Iranian Perspectives on the Iran-Iraq 
War (Farhang Rajaee ed. 1997). 

The Iran-Iraq War: The Politics of 
AGGRESSION (Farhang Rajaee ed. 1993). 

Academie de Droit International De La 
Haye, Recueil des Cours. 

Rapid Deployment Joint Task Force, later 
folded into CENTCOM. 45 

Restatement (Second) of Foreign 
Relations Law of the United States 
(1965). 

Restatement (Third) of Foreign 
Relations Law of the United States 
(1987). 

J. Ashley Roach & Robert W. Smith, 
United States Responses to Excessive 
Maritime Claims (2d ed. 1996). 

The Law of Naval Operations (Nav. 
War C. Int'L L. Stud., v. 64, Horace B. 
Robertson, Jr. ed. 1991). 

Horace B. Robertson, Jr., "The New" Law 
of the Sea and the Law of Armed Conflict at 
Sea (Nav. War C. Newport Paper No. 3, 
Oct. 1992), in Readings on 
International Law from the Naval 
War College Review 1978-1994, ch. 19 
(Nav. War C. Int'L L. Stud., v. 68, John 
Norton Moore & Robert F. Turner eds. 



24 The Tanker War 



ROE 

Roerich Pact 

Ronzitti, The Crisis 



S.C. Res 



San Remo Manual 



Schindler & Toman 



SCHOENBAUM 
SCHWARZENBERGER 

Seabed Arms Control Treaty 



Second Convention 



1995). Page citations refer to the 
International Law Studies version. 

Rules of Engagement. 

Treaty on Protection of Artistic & Scientific 
Institutions & Historical Monuments, Apr. 
15, 1935, 49 Stat. 3267, 167 LNTS 289. 

Natalino Ronzitti, The Crisis of the 
Traditional Law Regulating International 
Armed Conflicts at Sea and the Need for its 
Revision, in LAW OF NAVAL WARFARE 1. 

UN Security Council Resolution, for which 
UN Document numbers have been omitted. 
For recent resolutions, document numbers 
have been S/RES/[Resolution number], 
followed by date. Resolutions have been 
cross-referenced to ILM or WELLENS 
where published there. 

Group of International Lawyers & 
Naval Experts, San Remo Manual on 
International Law Applicable to 
Armed Conflicts at Sea (Louise 
Doswald-Beck ed. 1995). 

Dietrich Schindler & Jiri Toman, The 
Laws of Armed Conflicts: A 
Collection of Conventions, 
Resolutions and Other Documents 
(3ded. 1988). 

Thomas J. Schoenbaum, Admiralty and 
Maritime Law (2d ed. 1994). 

1 & 2 GEORG SCHWARZENBERGER, A 

Manual of International Law (5 th ed. 
1967). 

Treaty on Prohibition of Emplacement of 
Nuclear Weapons and Other Weapons of 
Mass Destruction on the Seabed and the 
Ocean Floor and in the Subsoil Thereof, 
Feb. 11, 1971, 23 UST 701, 955 UNTS 115. 

Convention for Amelioration of Wounded, 
Sick & Shipwrecked Members of Armed 
Forces at Sea, Aug. 12, 1949, 6 UST 3217, 
75 UNTS 85. 



Introduction 25 



Second Protocol 



Second Report 



SlMMA 

Sinclair 

SOLAS 



1960 SOLAS 



1974 SOLAS 



Stockholm Declaration 



Stone 
swarztrauber 

Symposium, State Succession 

1941 Tentative Instructions 



Second Protocol to Hague Convention of 
1954 for Protection of Cultural Property in 
Event of Armed Conflict, Mar. 26, 1999, 38 
ILM 769 (1999). 

UK Foreign Affairs Committee, Second 
Report: Current UK Policy Towards the 
Iran/Iraq Conflict, June 1988, in DE 
guttry & ronzitti 291. 

Bruno Simma, The Charter of the 
United Nations: A Commentary (1994). 

Ian Sinclair, The Vienna Convention 
on the Law of Treaties (2d ed.1984). 

Safety of Life at Sea, the short form for 
safety regulations published in treaties like, 
e.g., Convention for Safety of Life at Sea, 
Nov. 1,1974, 32 UST 47. 

Convention for Safety of Life at Sea, June 
17, 1960, 16 UST 185, 536 UNTS 27. 

Convention for Safety of Life at Sea, Nov. 1, 
1974, 32 UST 47. 

Stockholm Declaration Regarding Similar 
Rules of Neutrality, May 27, 1938, 188 
LNTS 294, a series of rules among 
Denmark, Finland, Iceland, Norway and 
Sweden restating principles of maritime 
neutrality as they applied to these States. In 
most cases the five agreements are identical 
and will be cited as one. If there are 
significant differences among them, this 
will be noted in the analysis. 

Julius Stone, Legal Controls of 
International Conflict (1959). 

sayre a. swarztrauber, the 
Three-Mile Limit of Territorial Seas 
(1972). 

Symposium, State Succession in the Former 
Soviet Union and in Eastern Europe, 33 VJIL 
253 (1993). 

US Department of the Navy, Tentative 
Instructions Governing Maritime and 
Aerial Warfare (May 1941). 



26 The Tanker War 



1943 Tentative Instructions 



Territorial Sea Convention 



Third Convention 



TIAS 



TIF 



Toman 



Transit Trade Convention 



Tucker 



TWC 



UAE 

UFP Resolution 



US Department of the Navy, Tentative 
Instructions Governing Maritime and 
Aerial Warfare (May 1944); id., cover, n.l 
indicates US Secretary of the Navy 
correspondence modified some provisions 
of 1941 Tentative Instructions in 1942 and 
1943, hence the abbreviated title. 

Convention on the Territorial Sea & 
Contiguous Zone, Apr. 29, 1958, 15 UST 
1606, 516 UNTS 205. 

Convention Relative to Treatment of 
Prisoners of War, Aug. 12, 1949, 6 UST 
3316, 75 UNTS 135. 

Treaties and other International 
Agreements Series of the United States, 
followed by number; cited when UST 
citation is not available; TIAS followed by a 
blank space indicates that the TIAS 
number has not been published but that the 
United States is a party to the treaty. 

US Department of State, Treaties in Force: 
A List of Treaties and Other International 
Agreements of the United States in Force 
on January 1, 1998 (1998). Other volumes 
are cited as, e.g., 1990 TIF. 

Jiri Toman, The Protection of 
Cultural Property in the Event of 
Armed Conflict (1996). 

Convention on Transit Trade of 
Land-Locked States, July 8, 1965, 19 UST 
7383, 597 UNTS 42. 

Robert W. Tucker, The Law of War 
and Neutrality at Sea (Nav. War C. 
Int'l L. Stud., v. 50, 1955). 

1-15 Tr. War Crim. Before Nuremberg 
Milit. Trib. Under Control Council L. No. 
10: Nuremberg, Oct. 1946 - Apr. 1949 
(1949-53). 

United Arab Emirates. 

Uniting for Peace Resolution, G.A. Res. 
377, UN GAOR, 5 th Sess., UN Doc. A/1471 
(1950), in 45 AJIL Supp. 1 (1951). 



Introduction 27 



UN 



1999 UN Treaties 



UNCIO 

UNCLOS III 

UNTS 
US 

use 

UST 



Vienna Convention 



VJIL 



Walker, Crisis Over Kuwait 



Walker, Integration and 
Disintegration 



Walker, Interface 



Walker, Oceans Law 



United Nations, when appearing as an 
adjective. 

United Nations, Multilateral Treaties 
Deposited with the Secretary-General, 
Status as at 30 April 1999, UN Doc. 
ST/LEG/SER.E/17, UN Sales No. E.99.V.5 
(1999). 

United Nations Conference on 
International Organization, Documents (22 
v. 1945). 

Third United Nations Conference on the 
Law of the Sea. 

United Nations Treaty Series. 

United States, when appearing as an 
adjective. 

United States Code. 

United States Treaties and Other 
International Agreements. UST preceded 
and followed by blank spaces indicates the 
treaty has not been published in UST, but 
that the United States is a party. 

Vienna Convention on the Law of Treaties, 
May 23, 1969, 1155 UNTS 331. 

Virginia Journal of International 
Law. 

George K. Walker, The Crisis Over Kuwait, 
August 1990-February 1991, 1991 DUKE J. 
COMP. & INT'L L. 25. 

George K. Walker, Integration and 
Disintegration in Europe: Reordering the 
Treaty Map of the Continent, 6 TRANSNAT'L 
LAW. 1 (1993). 

George K. Walker, The Interface of Criminal 
Jurisdiction and Actions under the United 
Nations Charter with Admiralty Law, 20 
Tulane Mar. L.J. 217 (1996). 

George K. Walker, Oceans Law, the Maritime 
Environment and the Law of Naval Warfare, 
in Protection of the Environment at 
185-221. 



28 The Tanker War 



Walker, Sources 



Walker, State Practice 
Wallace 



Washington Naval Treaty 



Wellens 



WEU 
Whiteman 



WlKTOR 



George K. Walker, The Sources of 
International Law and the Restatement 
(Third), Foreign Relations Law of the United 
States, 37 Nav. L. Rev. 1 (1988). 

George K. Walker, State Practice following 
World War II: 1945-1990, in Grunawalt 121. 

1-3 Richard L. Wallace, The Marine 
Mammal Commission Compendium of 
Selected Treaties, International 
Agreements, ANd Other Relevant 
Documents on Marine Resources, 
Wildlife, and the Environment (1994). 

Treaty Relating to Use of Submarines and 
Noxious Gases inWarfare, Feb. 6, 1922, in 
Schindler & Toman 877. 

Karel C. Wellens, Resolutions and 
Statements of the United Nations 
Security Council (1946-1992): A 
Thematic Guide (2d ed.1993). 

Western European Union. 

Marjorie M. Whiteman, Digest of 
International Law (15 v. 1963-73). The 
rule for citing digests has not been followed 
with particularity. 46 

Christian L. Wiktor, Unperfected 
Treaties to which the United States 
is Party ( 9 v. 1976-94). 



Part E. A Note for Readers and Reviewers 

As stated in the Foreword, this book represents the views of the author and does not 
necessarily represent the position of the Naval War College, the Department of the 
Navy, the Department of Defense, or any other department of the US Government. 

Comments, correspondence and reviews are welcome. If the book is the subject 
of a published review, or if those who comment desire to do so, copies of comments 
or correspondence may be sent to: 

Chairman, Oceans Law and Policy Department 

Center for Naval Warfare Studies 

Naval War College 

686 Cushing Road 

Newport, R.I. 02841-1207 U.S.A. 



Introduction 29 



Facsimile correspondence maybe sent to 401-841-3989, and E-mail may be sent 
to (lautierv@nwc.navy.mil). Another copy of published reviews, comments or 
correspondence should be sent to the author, whose current facsimile number is 
336-758-4496, or by mail. 

George K. Walker 

Professor of Law 

Wake Forest University School of Law 

P.O. Box 7206 

Winston-Salem, N.C. 27109-7206 

U.S.A. 

NOTES 

1. Cited in this book as de Guttry & Ronzitti; see Part D. 

2. Cited in this book as Navis & Hooten; see Part D. 

3. Although occasional media articles are cited, primary reliance has been placed on digests such as Facts on 
File and Keesincs Contemporary Archives. 

4. E.g., the America and the World section of Foreign Affairs. See n. II.2. 

5. Hiro (1991) is among the earlier accounts; see also e.g., 2 & 3 Cordesman & Wagner; Dekker & Post; Karsh; 
Naff, Gulf Security. 

6. I.e., First-Fourth Conventions. See Part D. 

7. See n. III. 622 and accompanying text. 

8. See n. III.627 and accompanying text. 

9. See nn. VI.403, 541-42 and accompanying text. 

10. &?*PartV.A. 

11. Cited in this book as LOS Convention; see Part D. 

12. See n. IV.3 and accompanying text. 

13. Id. 

14. Cited as Restatement (Third) and Restatement (Second) respectively; see Part D. 

15. Cited in this book as NWP 9; see Part D. 

16. See also n. VI. 595 and accompanying text. 

17. E.g., Bothe et al., analyzing Protocol I. 

18. 1-4 Pictet; see also Part D. 

19. See Part A. 

20. These include: Walker, Crisis Over Kuwait; Walker, Integration and Disintegration; Walker, Interface; Walker, 
Maritime Neutrality; Walker, Oceans Law; Walker, Sources; Walker, State Practice; and Walker, United States National 
Security Law and United Nations Peacekeeping or Peacemaking Operations, 29 Wake Forest L. Rev. 435 (1994). 

21. John Donne, Devotions Upon Emergent Occasions, No. 17 (1624) ("no man is an island, entire of itself; every 
man is a piece of the continent, a part of the main. ") 

22. Mark Twain is reported to have said that when he was a boy of 14, his father was so ignorant he could hardly 
stand to have the old man around. But when he got to be 21 , he was astonished at how much the old man had learned in 
seven years. See also Jerry Romansky, Search for Twain Books on Adventure, Dubuque Telegraph Herald, Dec. 19, 
1999,atE13. 



30 The Tanker War 



23. Anne Freeman, The Style of a Law Firm: Eight Gentlemen from Virginia 144-90 (1989) ably tells the story 
of what Hunton, Williams, Gay, Powell & Gibson was like in those days. The firm name changed with death of 
partners and appointment of Lewis F. Powell, Jr. as Associate Justice of the Supreme Court of the United States. My 
first memorandum as an associate in the firm was written to him. 

24. Jack has been justly honored by publication of Liber Amicorum, volume 72 in the International Law Studies 
series. 

25. The universal maritime flag code (BZ) for "well done." 

26. See n. 21 and accompanying text. 

27. Phillip Knightley, The First Casualty — From the Crimea to Vietnam: The War Correspondent as 
Hero, Propagandist, and Myth Maker 17 (1975) 

28. Towne v. Eisner, 245 US 418, 425 (1918). 

29. New York Trust Co. v. Eisner, 256 US 345, 349 (1921). 

30. E.g., Mcdougal, Lasswell & Chen 167-84, 368-74. One example from the Gulf War is Reza Ra'iss Tousi, 
Containment and Animosity: the United States and the War, in Rajaee, Iranian Perspectives 49: "... I contend that the 
United States followed a conscious policy to contain or destroy the [Islamic] revolution [in Iran], encouraging Iraq to 
impose a war on the newly formed revolutionary government." It is highly doubtful if this is true as to all US actions 
during the 1980-88 Iran-Iraq war. Unfortunately, not all sources that report, comment upon, or analyze facts, history, 
policies or law applicable to this war are as candid. While I do not agree with Tousi on his thesis, I commend his 
candor. 

31. Restatement (Third) § 312 r.n.5. 

32. I refer to the principle of the persistent objector. >Se£££nera//y Brownlie, International Law 10; 1 Oppenheim 
§ 10, at 29; Restatement (Third) § 102 cmts. b, d; Michael Akehurst, Custom as a Source of Law, BYBIL 1, 23-27 
(1974); C.H.M. Waldock, General Course on Public International Law, 106 RCADI 1, 49-53 (1962); but see Jonathan 
Charney, Universal International Law, 87 AJIL 529, 538-41 (1993) (existence of persistent objector rule open to serious 
doubt). Roach & Smith's exhaustive study of US objections to LOS claims indicates that the persistent objector rule is 
alive and well, at least for LOS issues. Undoubtedly there are thousands of protests filed annually on many issues in 
chancelleries, few if any of which are published. It cannot therefore be assumed, as some commentators do, that the 
rule of the persistent objector is in desuetude. 

33. This is a familiar problem for US lawyers. Since their beginning the Federal Rules Decisions and Federal 
Supplement series have selectively published US District Court cases, relying on judges or counsel to submit what 
they consider more important opinions. Recently the Federal Reporter and reports of state appellate courts have 
published only the more significant opinions, usually determined by the courts pursuant to their rules. It is therefore 
always hazardous to declare what is custom, based on a nose count of nations and what may be said in the national 
digests, even as it has become ever more difficult to determine the "majority rule" among courts. That is probably a 
reason why international law has traditionally relied on factorial approaches, e.g., ICJ Statute, art. 38(1 ); Restatement 
(Third) §§ 102-03. 

34. Cf. Alfred, Lord Tennyson, Ulysses, in G. Robert Stange, The Poetical Works of Tennyson 88(1 974) ("lam 
part of all that I have met; Yet all experience is an arch wherethro' Gleams that untravell'd world whose margin fades 
For ever and for ever when I move."). 

35. I again acknowledge my intellectual debt to the law-science-policy (LSP) comprehensive analysis, although 
this book follows a more conventional approach. For discussion of LSP, see, e.g., Myres S. McDougal et al, Theories 
About International Law: Prologue to a Configurative Jurisprudence, 8 VJIL 188 (1968); John Norton Moore, 
Prolegomenon to the Jurisprudence of Myres S. McDougal and Harold Lasswell, 54 Va. L. Rev. 662 (1968); Eisuke Suzuki, 
The New Haven School of International Law: An Invitation to a Policy -Oriented Jurisprudence, 1 Yale Stud. World Pub. 
Ord. 1 (1974); George K. Walker, Sea Power and the Law of the Sea: The Need for a Contextual Approach, 7 ODIL 299 
(1979). 

36. Editors of Columbia Law Review et al., The Bluebook: A Uniform System of Citation (16th ed. 1996). 

37. See id., Rule 17.1.3. 

38. See id., Rules 20.1(a), 20.4. 

39. Cf. id., Rule 4.2. 

40. See id., Rule 1.6(b). 



Introduction 31 



41. See id., Rule 2.1. 

42. Id., Rule 20.10. 

43. /</., Rule 20.10. 

44. Id., Rule 20.10. 

45. See nn. 11.77 & 78 and accompanying text. 

46. M, Rule 20.10. 



w 



Chapter II 
THE TANKER WAR, 1980-88 1 

ith Iran's willingness, as of late 1988 and early 1989, to negotiate a 
ceasefire on the basis of UN Security Council Resolution 598, an initial 
conclusion might be that the end of hostilities in the 1980-88 Iran-Iraq war also 
ended US and European security interests in the Persian Gulf. France withdrew 
the aircraft carrier Clemenceau and other naval units in September 1988. The 
United States adopted a more wait-and-see attitude but also began to reduce its na- 
val commitment by stopping convoying while remaining in the Gulf to provide a 
"zone defense." Kuwaiti tankers' "deflagging" began in early 1989, and in March 
1990 the last US Navy minesweepers were brought home. "[RJeturn of the wooden 
ships was in response to a reduced mine threat and will not affect continuing . . . op- 
erations by US naval vessels aimed at maintaining freedom of navigation and the 
free flow of oil through the Persian Gulf," a press release said in May 1990. 

Despite these encouraging trends, that war's end did not terminate security in- 
terests in the Gulf, particularly for the United States, Western Europe and Japan. 
The war was but a warmer chapter in the struggle of national security interests for 
control or influence in Southwest Asia and petroleum, that region's vital resource. 
The Gulf area has a very large proportion of world oil reserves, about 54-60 per- 
cent. Two years later, the 1990-91 Gulf War between Iraq and the Coalition again 

8 

demonstrated the relationship between oil and national security interests. 

This Chapter begins with an historical overview, followed by analysis of 
great-power involvement, particularly that of the United States, in the Iran-Iraq 
war at policy and strategic levels. 

This work cannot consider in depth other aspects of the war's impact on other 
national security interests — e.g., the USSR incursion into Afghanistan, which 
Iraq condemned; a Soviet port arrangement with Syria in 1988; Iran-US bilat- 
eral relations from the Shah's fall in 1979 through the embassy hostage crisis, 

11 12 

which Iraq also condemned, to claims in the Iran-Contra Affair; the rise of Is- 

1 5 
lamic fundamentalism, particularly in Iran ; OPEC as an influence; the land war, 

with renewed use of poison gas and missile attacks on cities, despite interna- 
tional law to the contrary; or even an apparent shift in Soviet foreign relations at 
the time — all of which (and more) impacted the war and security interests in the 
Gulf. These additional factors are recited, without extended analysis, to confirm 
the point that national security interests in one vital area cannot be seen in a 
vacuum. 



34 The Tanker War 



Part A. Prologue 

17 

There have been many actors in the Persian Gulf: France, introduced to the 
Middle East in 1916 after the Sykes-Picot agreement, when Syria became a French 

1 o 

mandate; Great Britain, whose influence dates from the early nineteenth cen- 
tury; Iraq, independent since 1932 after time as a British mandate and free of Brit- 
ish influence since 1954, having been part of the Ottoman Empire before World 
War I; Iran, formerly Persia and more or less independent during the last two 

20 

centuries; the United States, whose oil companies have had interests there dur- 
ing this century and which assumed the mantle of providing naval security when 
British forces withdrew in 1971; and countries that formed the Gulf Cooperation 
Council (GCC) in 1981, 21 i.e., Bahrain, 22 Kuwait, 23 Oman, 24 Qatar, 25 Saudi 
Arabia and the United Arab Emirates (UAE). The UAE is a federation of the 
former Trucial States — Abu Dhabi, Ajman, Dubai, Fujairah, Ras-al-Khaimah, 
Sharjah, Umm-al-Qawain — and came into existence December 1, 1971, when 

27 

Britain left the Gulf. Before World War I the Ottoman Empire was sovereign 
over some territories that became the GCC States, e.g., Saudi Arabia, while Britain 
was protector of others, e.g., Kuwait and the Trucial States. 

1. The United Kingdom and France; UK Interventions and Reactions. 

Britain's strategic interests evolved around oil and air routes to India; it dic- 
tated defense and foreign relations policy to Iraq and western shore Gulf States, 
later GCC members, except Saudi Arabia, which with Iran were always outside the 

28 

UK orbit. Britain exercised considerable influence over Iran, however. In July 
1946, for example, H.M. S. Norfolk and Wild Goose were ordered to Basra, Iraq, after 
the USSR-backed Tudeh Party fomented rioting at the UK-owned oil refinery at 
Abadan, Iran. In August 1946 UK troops landed in Basra. Although intervention 
in Iran was not necessary, the "eventual outcome was satisfactory to British inter- 

29 

ests and entailed a setback to the growth of Soviet influence" in Iran. On June 26, 
195 1 several Royal Navy warships were ordered to Abadan, Iran, to protect British 
subjects during a UK dispute with Iran over nationalization of an oil refinery; 

30 

these ships conducted an evacuation October 3, 1951. In 1961 Britain landed 
Royal Marines and troops, with a naval concentration offshore, to help deter an 
Iraqi invasion of newly independent Kuwait. Arab League troops later replaced 

UK ground forces. Still later Iraq recognized Kuwaiti independence. For a cen- 

32 
tury and a half, the Gulf had been a "British lake," but times were changing. 

33 
France continued to have close ties with Iraq, however. 

Evidence of the rise of other forces in the area was demonstrated in 1969 when 
Iranian warships successfully escorted an Iranian merchantman from Khorramshahr 
in the Shatt al-Arab to the Gulf, defying Iraqi threats to stop any Iran-flagged ves- 
sel from sailing through Iraq-claimed waters. In 1961 Iran had bowed to a similar 



The War, 1980-88 35 



threat, but naval action now secured her purposes. As Iran perceived the Soviet 
threat diminishing to her north, she began to focus on her security interests in the 
Gulf. Iran began to assert offshore rights to areas where oil reservoirs were 
known to exist and pushed territorial sea claims outward into the Gulf. Eventually 
agreements were reached, except in the upper Gulf, where Irani, Iraqi and Kuwaiti 
claims remained unresolved until 1975. After diplomatic interventions in Lon- 
don and a plebiscite in Bahrain overwhelmingly rejecting union with Iran, Iran 

37 
dropped sovereignty claims to Bahrain. Saudi Arabia has asserted territorial 

claims to parts of Abu Dhabi, a UAE member, and Dhofar, part of Oman, and the 

Khufu strip, disputed with Qatar. Occasionally these disputes would spill over 

into adjacent Gulf waters, e.g., in 1968 when an Iranian gunboat approached and 

detained an Arabian-American Oil Company (ARAMCO) crew on an oil rig 

claimed to be on the Iranian side of waters said to be Iran's for oil exploitation un- 

38 

der a Iran-Saudi tentative agreement. 

2. The United States; Preliminary Gambits in the Gulf. 

US interests began with oil investments in the area, particularly an exclusive 
concession in Saudi Arabia, later shared with the Saudis, that became ARAMCO. 
After World War II US and others' investments gave returns in billions of US dol- 
lars annually; US Gulf area concessions stood at half the total of arrangements 

39 
there. In the 1970s, however, Saudi Arabia nationalized ARAMCO and other 

foreign holdings. Following on World War II cooperative arrangements, the 
United States built an airfield at Dhahran (1945-62) and homeported its minus- 
cule Middle East Force, under US Central Command (CENTCOM) during the 
Tanker War, in Bahrain. Britain's 1971 withdrawal, while minimal in terms of 
UK security forces and interests, had a profound impact on western Gulf States: 

[UK] withdrawal from the Gulf was more substantial in political terms since it 
necessitated the formulation of an independent political framework for the small 
emirates along the Arab littoral, but the real impact was . . . psychological. Britain had 
served as judge, arbiter, administrator, and . . . protector of this littoral for well over a 
century. Departure in 1971 was tantamount to removal of the safety net. . . . 
[CJurrents of nationalist and modernist sentiments and ideas had begun to circulate 
along the shores of the Gulf even before the influx of oil revenues. 42 

Some local rulers did not favor UK withdrawal, for the obvious reason of losing 
support, and perhaps to fend off neighbors. 4 

The United States did not rush into power the vacuum. Reeling from Vietnam 
and responding to a USSR-Iraq friendship treaty, the Nixon Administration 
developed the Twin Pillars policy of military assistance to Saudi Arabia and Iran 
to protect common regional security interests as part of the Nixon Doctrine. The 
United States would no longer assume direct responsibility for preserving 



36 The Tanker War 



worldwide security but would strengthen regional actors to play a primary role in 

48 

assuring stability. "Benign inaction" characterized US policy, 1971-79. The 
United Kingdom saw the Iraq-USSR treaty as more apparent than real, although 

49 

France adhered to a view closer to that of the United States. 

In the northern Gulf, there was no benign inaction. Iran-Iraq relations were 
strained, 1970-75, but in 1975 treaties to confirm land and water boundaries 
seemed to patch up differences. Thus matters stood until Iran's Shah fell in 1979. 
Perhaps an omen for the future had occurred in 1971, the day of British with- 
drawal, when Iran occupied Greater and Lesser Tunb islands belonging to the 
UAE's Ras Al Khaimah principality. That same day, pursuant to treaty, part of 
Abu Musa island, belonging to the UAE's Sharjah principality, was given to Iran 
for a military base in return for a grant to the Sharjah ruler. Sharjah and Iran would 
share oil concession revenues. All three islands lie at the mouth of the Gulf, near 
the Strait of Hormuz. Iraq retaliated against Iranian interests, and Libya retaliated 
against Britain, which did not intervene as in 1961. 

3. The Soviet Union. 

The USSR was seen as "eager to exploit the opportunities created by the . . . 
[1980-88] war [when it came] and the perception of faltering US interest to insert 

themselves into the Gulf — a region in which their presence [had] traditionally 

52 
been limited and marginal."" A Soviet naval flotilla had been on permanent sta- 
tion in the Gulf since March 1968, two months after the UK's notice that it was 
quitting the area. J The USSR and Iraq had signed a Treaty of Friendship & 
Co-Operation in April 1972, but Soviet relations with Iraq, 1972-80, have been 
characterized as "cordial but far from a patron-client arrangement." 

4. Worldwide Dependence on Persian Gulf Oil and Foreign-Flag Shipping. 

This shift in political balances was accompanied by increasing worldwide de- 
pendence on Gulf oil and, for the United States at least, relying on lift of oil in ships 
flying other nations' flags. At the beginning of the Gulf War Europe imported 
about half of its oil (France, 70 percent; Italy, 60 percent; and other States smaller 
percentages). While US 1973-85 Gulf oil import percentages fell through effi- 
ciencies, domestic oil production peaked, and by 1985 US oil companies saw the 
United States in a dangerously vulnerable position vis-a-vis OPEC oil. Western 
Europe received 20-40 percent, and Japan about 60 percent, of its oil from the 
Gulf. 56 By 1987 US dependence on Gulf oil had doubled from 1985, Western Eu- 
rope's consumption of Gulf oil was about 33 percent of its total, Greece's was 50 
percent, and Turkey's and Japan's nearly 66 percent. US domestic oil production 

continued to decline. Gulf States, particularly Saudi Arabia, had tremendous 

57 
advantages in oil reserves and surplus production capacity. Saudi oil supplied 

half of France's needs, and other European States had large investments in the 






The War, 1980-88 37 



country. When the war began Iraq supplied considerably more oil to Britain, 

58 
France, Germany and Italy than Iran. Even at war's end, when oil-dependent 

countries had begun to tap other sources, the Gulf supplied a fourth of petroleum 
moving in international commerce. Thirty percent of Western Europe's, and 65 
percent of Japan's, oil came from the Gulf. The United States was 50 percent de- 
pendent on foreign oil sources, but only 1 8 percent of that or 9 percent of total con- 
sumption, came from the Gulf. 

By 1986, US-flag foreign trade tankers were almost nonexistent; their role had 
been taken by other nations' vessels, particularly those flying flags of convenience 
but often beneficially owned by US business interests. The US foreign trade out- 
look was then also poor. Contrasted with the US-flag fleet's steady demise and 
growth of flags of convenience, the State-run USSR merchant fleet continued to 
rise. In 1985 its tonnage was well ahead of that of the United States. With Soviet 
satellites and clients counted, the USSR was third in world shipping tonnage (25 
million), behind Liberia, Panama and Greece and ahead of the United King- 
dom. The Suez Canal closure during the Arab-Israeli wars prompted building 
ever larger tankers, which could be operated more cheaply than smaller ones, but 
which might have greater economic consequences and effects for the environ- 
ment, if a ship were damaged or sunk in a grounding or collision, or in a storm. The 
same result would obtain if these huge ships were damaged during armed conflict. 

5. The Environment. 

The environment became another important factor. The UN Environment 
Programme, developed after the 1972 Stockholm Conference on the Human Envi- 
ronment, resulted in many regional treaties, among them the Kuwait Regional 
Convention and Protocol (1978). By 1981 it was in force for eight Gulf States, 
Iran and Iraq among them. The UN LOS Convention, negotiated during the de- 
cade before signature in 1982, restated many principles of the 1958 Geneva Con- 
ventions on the Law of the Sea, added new terms and published maritime 
environmental standards. The Gulf is particularly environmentally sensitive be- 
cause of heavy tanker traffic and offshore petroleum production activity. The 
Gulfs currents are slow, there is only a gradual exchange of water, and therefore 
little purgation of pollution once it happens. 

6. Geography of the Persian Gulf. 

The Persian Gulf, known as the Arabian Gulf to Gulf coastal States, is a shallow 
extension of the Indian Ocean between the Arabian Peninsula to the west and Iran 
to the east. It extends northeast 614 miles from the Gulf of Oman in the Indian 
Ocean, through the Strait of Hormuz to the Shatt al-Arab in the north. Iran bor- 
ders it on the northeastern shore; Iran, Iraq (which has only a 10-mile coastline) 
and Kuwait are on its northwest shores, and the island State of Bahrain, Kuwait, 



38 The Tanker War 



Qatar, Saudi Arabia and the UAE border the Gulf on its southwestern shore and 
around Oman's Musandam Peninsula to the Gulf of Oman and the Indian Ocean. 
The Gulf is 24 nautical miles wide at its narrowest point in the Strait and about 200 
miles across at its widest point. Like the Baltic and Black Seas the Gulf is shallow 
with an average depth of 130-260 feet, with greatest depths of 700 feet within 
Omani territorial waters in the Strait of Hormuz. There is no deep seabed in the 
Gulf, whether considered from a geographic or law of the sea analysis. The shal- 
lowest areas, less than 120 feet, are along the UAE, where vessels over 5000 tons 
displacement, i.e., nearly all of today's tankers, can safely sail no closer than five 
miles offshore. The Strait, only about 24 miles wide at its narrowest point, is rela- 
tively deep (210-270 feet) in its navigational channels. However, the Strait is dot- 
ted with islands claimed by littoral countries, Qeshen (Iran), Larak (Iran) and 
Quoin Islands (Oman) at its narrowest point, and Abu Musa, Greater and Lesser 
Tunbs, occupied by Iran. Bahrain is an island nation, and there are other off- 
shore islands around the Gulf, e.g., Bubiyan (Kuwait) and Kharg (Iran). Several 
Gulf States, e.g., Iran, Kuwait, Saudi Arabia and the UAE, have numerous offshore 
oil rigs or pumping stations. At the head of the Gulf, the Shatt al-Arab (formed by 
confluence of the Tigris and Euphrates Rivers) flows through a marshy delta into 
the Gulf. There are also shallow estuaries elsewhere along the Gulf, where a pearl 

CO 

industry flourished for centuries. The Shatt has been a boundary, albeit dis- 
puted, between Iran and Iraq. Kuwait lies just around the corner of the Gulf from 
the Shatt marshes and Iran and Iraq. Like the Baltic and Black Seas, there is rela- 
tively little outflow or inflow from or to the Gulf. It is not as stagnant as the Black 
Sea, but a pollution problem in the Gulf, whether deliberate, e.g., petroleum dump- 
ing during war or a terrorist attack, or accidental, e.g., in collisions or during war, 
can have longterm consequences for the Gulf environment, not to mention free- 
dom of navigation. 

7. Vital Shipping Chokepoints. 

Yet another, and critically enduring, factor is that waters enclosing the Arabian 
Peninsula have three of the world's most economically and strategically important 
waterways: the Strait of Hormuz, entry for the Gulf; the Suez Canal and Bab El 
Mandeb Strait, entries and exits for the Red Sea, through which 10 percent of 
world commerce flows. Suez and Bab El Mandeb cut transit time dramatically for 
merchantmen or naval forces moving between the Mediterranean Sea and the In- 

70 

dian Ocean; closing the Canal during the Arab-Israeli wars forced travel around 
Africa and promoted building larger petroleum tankers to supply the world. "The 
. . . Gulf . . . with the Strait of Hormuz, which gives access to it from the Gulf of 
Oman and the Indian Ocean, might well be described as an international oil high- 

71 

way" or "the West's lifeline," and a collision or terrorist attack in the Strait could 



The War, 1980-88 39 



72 

have serious consequences. More than 80 tankers passed through Hormuz 

73 

daily. The number is less today. 

Part B. The Course of the War and Others' Responses 

The precipitating event for US involvement in the 1980-88 Gulf War was the 
USSR invasion of Afghanistan and danger to the Gulf because of a power vacuum 
there. US President Jimmy Carter's January 23, 1980 State of the Union Address 
treated the Gulf area as a vital American interest; he said the United States would 
respond with force if necessary: "Let our position be absolutely clear: An attempt 
by any outside force to gain control of the . . . Gulf region will be regarded as an as- 
sault on the vital interests of the United States . . , and such an assault will be re- 

75 
pelled by any means necessary, including military force." US naval task forces 

7ft 

were already in the Indian Ocean because of the Hostage Crisis; they remained 
there. The Carter Doctrine, as this point in the Address came to be called, pro- 
moted a basic rationale for prepositioning ships with stores for the Rapid De- 
ployment Joint Task Force (RDJTF) at Diego Garcia, a British Indian Ocean 

77 

dependency, and preparing for possible RDJTF deployment. RDJTF was not 

78 

then a strong or mobile enough force to make it a serious US policy instrument, 
although its "jurisdiction" stretched over 19 countries, from Pakistan to Egypt to 
Kenya, an area twice as large as the continental United States with nearly impossi- 

79 

ble lines of communication and some of the most inhospitable terrain on Earth. 
The other, unstated goal was protecting Saudi Arabia. The United States would re- 
spond "positively" to requests for assistance from "non-belligerent friends" in the 

80 
region. 

Activist Iraqi Muslim Shiites, the dominant sect in Iran, tried to assassinate 
Iraq's deputy premier in April 1 980. Iraq began rooting out these activists, bombed 
an Iranian border town, expelled Iranian residents and Iraqis of Iranian descent, 
and called on Iran to vacate Abu Musa, Lesser and Greater Tunb, occupied by Iran 
and formerly UAE territory. Iran began training infiltrators, and Iraq supported 
important members of the Shah's government resident in Baghdad, who tried to 
topple the Iranian government. Iraq sought and received backing from Kuwait 
and Saudi Arabia, fearful of Iranian antimonarchial policy; according to Iran, Ku- 
wait and Saudi Arabia signed secret agreements on September 12 to boost oil out- 
puts considerably and to contribute sales revenues to Iraq's war effort. (Saudi 
Arabia had signed an agreement with Iraq in February 1979, reportedly including 
mutual security arrangements.) After border clashes in the summer of 1980, Iran 
began shelling Iraqi towns in early September. Iraq demanded territorial cessions, 
purportedly part of the 1975 settlement. 81 



40 The Tanker War 



1. 1980: Opening Moves; First Efforts at Ending the War. 

82 
On September 22 Iraq invaded Iran. Two days later Jordan offered Iraq total 

support, including arms bought from the USSR and Western powers. Jordan also 
gave Iraq access to the Port of Aqaba and land and air facilities for imports and ex- 
ports. The war had begun. 

On September 21 and 24 Iraq declared the 1975 agreement demarcating the 
Shatt abrogated, asserting it would exercise full sovereignty over the Shatt. 
Iraq required Iranian ships using the Shatt to engage Iraqi pilots and fly the Iraqi 

87 

ensign at the truck. Iran refused to do this. When Iraq had invaded Iran on Sep- 

88 

tember 22 claiming self-defense, an Iranian Notice to Mariners (NOTMAR) de- 
clared waterways near its coast a war zone, announced new shipping lanes after 
ships passed Hormuz, disclaimed responsibility if vessels did not follow the lanes, 

89 

refused access to Iraqi ports, thereby closing the Shatt, and warned of retaliation 

90 
if Gulf States gave Iraq facilities. Refusal of access to Iraqi ports was later charac- 

91 

terized as a "blockade" of the Iraqi coast. There were also sporadic attacks on 

92 

shipping in the Shatt in the early days of the war. Whether this resulted in pollu- 
tion into the Gulf cannot be determined; undoubtedly there was spillage from 
bunkers, tankers and damaged facilities. Attacking States' motivation and care, in 
terms of concerns, if any, for the environment is not known. 

On September 23 the European Community (EC) endorsed an Arab League ap- 
peal for a ceasefire and "emphasize[d] the vital importance for the entire interna- 
tional community of freedom of navigation in the Gulf, with which it is imperative 

93 

not to interfere."' From the beginning of the war until near the end, however, the 
EC made no effort to harmonize policy, due to lack of internal cohesion and a clash 

94 

of cultures. Several Arab States, Libya and Syria among them, had supported 
Iran in the League; Algeria, Lebanon, Libya, the Palestine Liberation Organi- 
zation and South Yemen had boycotted the meeting. Five days later the UN Se- 
curity Council's Resolution 479 called for ending hostilities. Iraq, denying 
territorial ambitions, accepted the Resolution; Iran considered the 1975 treaty 

97 

valid and demanded condemnation of Iraqi aggression. Although the resolution 
had not mentioned freedom of navigation, Japan and the United States stressed 

98 

that principle's primary importance. Resolution 479 also supported the UN Sec- 
retary-General's efforts to settle the dispute through mediation or conciliation, 
and in November he appointed former Swedish Prime Minister Olaf Palme as me- 

99 

diator; Palme's efforts were largely unsuccessful. 

On October 1 Iran declared the Shatt closed for all maritime craft until further 
notice. On October 5 a US NOTMAR announced Iran had warned that "all 
coastal waters [were] battle areas. All transportation of materials to Iraqi ports 
[was] prohibited." After passing Hormuz, merchant traffic should stay south of 
designated points. The Shatt estuary should be avoided, and mariners were cau- 
tioned to be alert to unusual, abnormal or hostile actions while in the Gulf. 



The War, 1980-88 41 



Iran's rationale for its war zone declaration was twofold, "the first being of a de- 
fensive nature. . . . Iran was [concerned with] protecting] its coastline against in- 
trusion by ships likely to present a risk to national security. . . . [F]oreign ships 
wishing to pass through the zone had to request prior authorization — Ships call- 
ing at a port in . . . [a] countr[y] bordering the . . . Gulf were, for obvious security 
reasons, subject to stricter regulations," being required to contact Iran's naval 
headquarters 48 hours in advance. "Iran's second concern was to guarantee the 

safety of international shipping [T]he zone could be dangerous to shipping due 

to warlike events likely to take place there. Without going so far as forbidding ac- 
cess to the zone, Iran . . . recommend foreign ships to avoid the zone by following 
shipping lanes outside it, thereby disclaiming responsibility for any damage 
which might be incurred on passing through the zone. Thus warned . . . , ships 

102 

which persisted . . . did so at their own risk." Iran began shuttling merchant con- 
voys under naval protection down her coast, through Iraq's Gulf Maritime Exclu- 

103 

sion Zone (GMEZ), to the lower Gulf. According to an Iranian commentator, 
"contrary to allegations, Iran never extended its war zone to . . . Hormuz and, on 22 
October . . . , reaffirmed a commitment to keeping the Strait open to naviga- 
tion." The United States later welcomed belligerents' assurances that Hormuz 
would remain open. Despite lapses in its threats to close the Strait, or its ap- 

107 

parent use of others' territorial sea for naval maneuvers, there is clear evidence 
to the contrary of a commentator's view that Iran's position in the Third UN Con- 
ference on the Law of the Sea (UNCLOS III) that produced the 1982 LOS Conven- 
tion "remained faithful to monarchical Iran's worldview regarding the navigation 
regime of the Gulf, most notably, opposition of a special regime for straits used for 
international navigation . . . , as well as insistence on prior authorization of war- 

108 

ships intending to exercise innocent passage through the territorial sea." 

On October 7 Iraq declared the Gulf north of 29 degrees 30 minutes North lati- 

109 

tude "a prohibited war zone;" this was the Tanker War arena until 1984. This 
war zone declaration was reportedly reprisal, or retaliation, for the Iranian "block- 
ade." By far the most severe blow to the Iraqi economy was Iran's successful clo- 
sure of the Gulf, soon after hostilities began, to Iraqi oil exports. Closing Iraq's 
coast and Iranian bombing of Iraqi oil terminals forced Iraq to use pipelines to Ku- 
waiti, Saudi, Syrian and Turkish ports to export oil to finance the war, or to export 
or import war-sustaining goods by other means, i.e., nearby third-State ports. The 
result was that Kuwait and Saudi Arabia sold oil and turned over at least part of the 
proceeds to Iraq as loans. They also made cash grants to Iraq. Estimates of Saudi 
and Kuwaiti financial aid range from $25 billion to $65 billion. Although hav- 
ing sided with Iran early in the war, Syria allowed Iraqi oil exports through the 
Kirkuk (Iraq)-Tripoli (Lebanon)-Banias (Syria) pipeline until 1982. 114 During 
the fall, "as reprisal for Kuwaiti assistance to Iraq," Iranian warplanes attacked 



42 The Tanker War 



Kuwaiti border posts and bombed the Um-Aish oil refineries, 25 miles below the 
Iraqi border. 

Whether these were arms-length bargains, or these States acted out of fear of a 
powerful neighbor, or otherwise, is less than clear. Bahrain, Qatar and the UAE 
maintained strict official silence, although two UAE principalities (including Ras 

117 

Al Khaimah, which lost islands to Iran in 1971) loaned Iraq $1-3 billion by the 
end of 1981, Abu Dhabi loaned $500 million a year by 1983, and Qatar loaned an- 

1 I o 

other $1 billion. ' UK intelligence discovered Iraqi helicopters and troops in 
Oman preparing to invade and occupy Abu Musa and the Tunbs; the UK and US 
governments successfully pressed Oman to scuttle the Iraqi plan. Later, Saudi 

119 

Arabia persuaded Iraq to abandon the plan. Thus, at the beginning of the war 
nearly all Gulf littoral States supported, or at least tilted toward, Iraq. Jordan had 
solidly supported Iraq, opening the Port of Aqaba on the Red Sea for Iraqi civilian 
and military imports. According to Iran, Jordan also permitted Iraqi use of an air 

120 • r 

base. This support was probably necessary for survival of the Iraqi regime, be- 
cause Iranian bombardment of Iraqi Gulf ports early in the war made Iraq effec- 
tively a landlocked country. By the end of 1980 its oil exports had dwindled from 

121 

over 3 million to 1 million barrels a day. Although officially neutral, Turkey 

122 

leaned toward Iraq. Nevertheless, perhaps 10 percent of Turkey's exports went 

123 
to Iran during the war and another 10 percent to Iraq. Egypt sold weapons to 

Iraq and may have augmented the Iraqi army with mercenaries and volunteer de- 
tachments. Egyptian pilots took part in air raids on Iran. 

Officially neutral, the United Kingdom improved relations with Iraq. France 

125 

was also neutral, but its policies favored Iraq. Private contractors in both coun- 
tries signed deals with Iraq, and other States' arms dealers went through Iraq's oil 

1 yf: 

customers to supply Iraq arms and spares. At the beginning of the war the 
United States did not have diplomatic relations with either belligerent; US rela- 
tions with Iran were bad because of the ongoing Hostage Crisis. On the other hand, 
the USSR had relations with both and was in a less strained position with respect to 
Iran, for which there had been historic Russian interest. Soviet aid to Iran stood at 

$1 billion in 1980. 127 By the end of the war the USSR had provided $8.8 to 9.2 bil- 

128 
lion in military assistance, most of it coming through Aqaba. The initial Soviet 

response to the invasion was strong disapproval, despite the 1972 Iraq-USSR 

friendship treaty, and may have resulted in beginning Iraqi overtures to the 

129 

United States. Italy's previously solid economic relations with Iraq were put 
under pressure when it declared neutrality; Italy's Fincantieri shipyard could not 
then deliver 1 1 warships Iraq ordered as part of a $1.1 billion contract. Italian ex- 
port licenses granted in 1981 lapsed because of the government's decision to ban 
military exports to the belligerents. Iraq then refused to pay on its $2 billion debt to 
Italy. Italian companies and Italian nationals also worked on Iranian construction 
projects; this kept Italy from a high diplomatic profile. Italian businesses operated 



The War, 1980-88 43 



with both belligerents. The FRG maintained a more evenhanded approach. 
Smaller northern European States not dependent on Gulf oil looked to the United 
Nations to resolve the war. Spain and Greece, Gulf oil dependent, got all of it they 
needed. 130 

The Islamic revolution left Iran in poor financial condition. As more skilled, 
better educated and wealthy people fled, oil production declined, and foreign ex- 

change reserves dwindled from $14.6 billion in 1979 to $1 billion in 1981. How- 

132 
ever, Iran had military spare parts reserves, a legacy of the Shah's rule; these 

supplied its war machine for awhile. Syria and Libya supported Iran, airlifting 

133 

USSR-made arms to Iran; Syria provided intelligence. Some private arms deal- 
ers in States officially leaning toward Iraq sold supplies to Iran. Israel sold Iran 
arms and spares from its stocks and got others from European sources. North Ko- 
rea, East Germany and Cuba, eager to buy oil, sold Iran military supplies. The 
USSR, officially linked closely with Iraq, may have sold war goods to Iran as 

i -in 

well, but Iraqi reverses in 1982 prompted promises of Soviet aid to Iraq. The 
USSR was caught among three conflicting foreign policy issues: its relationship 
with Iraq, an official amicable stance toward the Iranian revolution, and an inter- 
national atmosphere marred by the Afghanistan invasion and tense US-Iran rela- 
tions after the Hostage Crisis. The Soviet Union had declared its neutrality early in 

138 

the war, however. The USSR appeared dissatisfied with Iraqi military action in 
late 1980, and flirted with Iran and its friends, inter alia signing a Friendship 
Treaty with Syria in October. Nevertheless, the Soviet Union did not totally aban- 
don Iraq. Iraq, perhaps petulently, rejected arms from the USSR this time. Warsaw 
Pact countries — Bulgaria, East Germany, Poland — increased arms sales to Iraq. 

Early in the war Iran rebuffed a Soviet arms offer. Iran did get satellite information 

139 
on impending Iraqi attacks, however. Iran was determined to be militarily 

self-sufficient as part of the Islamic revolution. Iraq, on the other hand, relied in- 
creasingly on Gulf State financial subventions, up to $18-20 billion by the end of 
1981. Iraq also came to rely on the superpowers diplomatically too. 

In November Iranian NOTMARs directed ships entering or leaving Iranian 
ports to get coordinates for Gulf travel from its navy and to inform the relevant Ira- 
nian port of their position hourly. Inbound ships had to give estimated time of ar- 
rival at Bandar Abbas and be cleared. If not cleared, they were to anchor there. 
Early in 1981 a NOTMAR directed all very large crude carriers or ultra large crude 
carriers (VLCC or ULCC), not inbound for Iranian ports and intending to cross 
the Iranian restricted zone, to contact Iranian naval headquarters with travel in- 
formation 48 hours before departure, ostensibly for ship safety reasons. 

"Although neither Iran nor Iraq declared contraband lists, the fact that both na- 
tions attacked neutral crude oil carriers, loaded and in ballast, indicated both . . . 
regarded oil as contraband. Whether classified as absolute or conditional contra- 
band, oil and the armaments which its sale or barter on international markets 



44 The Tanker War 

[would] bring, were absolutely indispensable to the war efforts of the . . . bellig- 
erents." No prize courts were established until the end of the war, when Iran 
published its rules, which did not include a contraband list. 

The UK Armilla Patrol was deployed in the Gulf from the beginning; Gulf 
States provided it and other western navies facilities. Logistics sources limited 
Patrol operations to the lower Gulf, up to 40 miles north of Dubai, and outside war 
zones; UK merchantmen steaming to Kuwait were not protected northward. A 
US guided missile cruiser was ordered to the Gulf in October; President Carter 
wanted a naval task force presence to keep Hormuz open. By October 1 5 at least 
60 Australian, French, UK and US warships were in the Indian Ocean to protect 

149 

the oil route; 29 Soviet vessels were also there. US overall policy had these 
themes: 



(1) United States neutrality . . . 

(2) American expectation of neutrality and non-interference by other nations; 
particularly the U.S.S.R. 

(3) Defense of United States vital interests including: 

(a) Preservation of freedom of navigation to and from the Gulf, 

(b) Prevention of the war's expansion in ways that would threaten the re- 
gion's security. 

(4) A desire for the immediate cessation of hostilities and solution of the dispute 
by diplomatic means. 

These derived from US goals of peace and preventing a wider war. The United 
States had imposed economic sanctions on Iran when the Hostage Crisis began. 
Some controls were revoked in 1981 after the hostages' return, others remained in 
force, and more controls were imposed again in 1987 because of Iran's actions 
against US flag vessels in the Gulf. The United Kingdom had passed special leg- 
islation to permit Orders in Council to limit contracts related to Iran in early 1980, 

152 
and this legislation also remained in effect during the war. 

When the war began 70 neutral-flag vessels were trapped in the Shatt. Despite 
UN good offices in October 1980, including a plea for a ceasefire to allow them to 
leave under a UN or Red Cross flag, Iraq refused to allow it, citing its "full" 
sovereignty over the Shatt. Iran had accepted the proposal. ' The ships re- 
mained in the waterway for the rest of the war. 

2. 1981: Efforts at Settlement; the Gulf States Organize the GCC. 

In March 1981 the Islamic Conference Organization (ICO) offered the bellig- 

157 

erents a peace plan; they rejected it. UN mediation, which had begun in No- 

158 

vember, had failed by April. 

Between May and November 1981 Bahrain, Kuwait, Oman, Qatar, Saudi Arabia 
and the UAE established the Gulf Cooperation Council under Saudi leadership with 
French and UK advice, to effect coordination, integration and interconnection 



The War, 1980-88 45 



between member States to achieve unity among them. GCC members moved to- 
ward economic integration and defense and security coordination between 1981 

159 

and the end of the war. The Council initially stressed economic and social plan- 
ning, as is evident from its Charter, but security issues eventually emerged as the 
GCC's primary focus. The Council "consistently supported Iraq and repeatedly 
called for cease-fire in the war, fully endorsing Security Council resolutions." 
Although the GCC tried to underline its neutrality, Iran may have seen its estab- 
lishment as a step against it and the Islamic revolution. However, one member, 
UAE, pursued its special relationship with Iran; the GCC secretariat approved it to 
maintain open, friendly communication with Iran. Even here there was ambiva- 

1 r-3 

lence because of Iran's occupying Abu Musa and the Tunbs. Similarly, al- 
though basically supporting Iraq, Kuwait felt pressure from Iran because of its 
geographic proximity. 

Militarily, the GCC was weak, relative to the belligerents, except the Saudi air 
force; the other five States mustered only 100,000 in their armed forces. The 
GCC was never totally unified, at least early in the war. For example, Qatar, be- 
cause of a Saudi-Qatar dispute over the Khufu strip, withdrew forces from Penin- 
sula Shield I, the first relatively modest GCC combined exercise. This action, 
according to an Iranian commentator, reportedly "followed a succession of other 
blows to attempts at constructing a common defense arrangement." Later Pen- 
insula Shields (II, 1984; III, 1987), were more successful. For the first time in the 
Twentieth Century, forces from all GCC States participated in cooperative mili- 
tary activities aimed at defending their territories. Although the war initially 
posed a threat to GCC States, the end result was a stronger, more unified military 
structure. In 1984 its Council decided on a rapid intervention force for peacekeep- 
ing operations in the Gulf area; in 1987 the Council approved a comprehensive se- 

i fn 
curity strategy, which may amount to a collective defense pact. Nevertheless, 

most Western analysts concluded during the war's early years that the narrow 
military significance of any GCC measures would remain marginal. Council mem- 
bers, even if they acted in unison, were seen as lacking manpower and infrastruc- 
ture to mount an adequate defense against a determined aggressor. Although the 
GCC States could not stop a Soviet attack, they could increase the political and mil- 
itary costs of aggressive moves by regional States, e.g., Iran or Iraq, and thereby 

1 CO 

serve as a deterrent. GCC States also negotiated a web of bilateral internal secu- 

169 
nty arrangements to combat subversion and terrorism. The May 1981 GCC 

summit in Abu Dhabi declared that the Gulf should remain free of international 
conflicts and expressed fear of foreign intervention. Its November Riyadah confer- 
ence expressed hope that efforts coming from the ICO, non-aligned States, and the 
United Nations, would be successful. Thus the GCC came to emphasize the ICO as 
a mediator between the belligerents. Thus, early in the war, the GCC's signifi- 
cance and the emerging regional security framework was seen 



46 The Tanker War 



as an information-sharing network for . . . containing] . . . internal subversion and 
violence; as a wholly indigenous and domestically palatable framework for serious 
and routine consultation with a view toward enhancing members' diplomatic 
initiatives and deterrent capabilities against external aggression; and as a possible 
venue for establishing more realistic, efficient, and compatible industrial plans in an 
era of reduced income. 

171 

Much would depend on events in Iran and Iraq, however. 

Also in 1981, at Saudi request, US Air Force AWACS aircraft deployed to Saudi 

172 

Arabia to enhance surveillance capabilities. The incoming Reagan Administra- 
tion saw the USSR as the major threat in the Gulf, a purported shift in US pol- 

173 

icy. On Saudi advice, the Administration sent a special emissary to Baghdad in 
April 1981, and Iraq announced in July that the head of the US interests section 
would be treated as a de facto ambassador. US military presence was to be in- 
creased, including assets prepositioning a Navy-Marine Corps task force, Army 
and Air Force exercises, creation of the RDJTF, and efforts to get access to Indian 

175 

Ocean facilities. A May 27 US NOTMAR repeated previous warnings and 
Iran's revised shipping guidelines. 

In May 1981 Iran seized a Kuwaiti survey ship and a Danish vessel, Elsa Cat, 
bound for the UAE and Kuwait and carrying military equipment to Iraq; Iraq 
protested Elsa Cat's seizure. Both vessels were let go. Iran was careful at this time to 
avoid provoking neighbors or major Western powers, being dependent on trans- 

1 77 

shipments from the UAE and food imports through the Gulf. In October an Ira- 
nian air raid damaged Kuwaiti Umm Aish oil installations. Beginning in 198 1 and 
continuing through 1984, Iraq attacked commmercial vessels in the northern 
Gulf, usually tankers and cargo ships calling at Bandar Khomeni or Bushire, Iran 

178 

after being convoyed through Iranian territorial waters. In March 1982 it was 
reported that Iraq had mined the Bandar Khomeni - port of Bandar Mashahr chan- 
nel to the open sea. An Iranian tanker had been lost in February, probably to 

1 79 

mines. There are apparently no published reports of oil spillage and pollution, 
or pollution from other cargoes or bunkers from these or later attacks, except for 

1 80 

the 1983 Nowruz attack. However, it is safe to infer that there was spillage and 
therefore pollution of harbors and offshore sea areas; the extent is unknown. The 
minelayers' motivation and care in conducting these and later attacks is also un- 
known. In April 1982 Syria had shut off Iraq's oil pipeline access to the Mediterra- 
nean; Iraq could now only export oil through Saudi Arabia and a trans-Turkey 

181 

pipeline. In 1984 the Turkish line was expanded; in 1987 a second leg was built. 
Oil was also trucked across Jordan to the Port of Aqaba. This network, which 
included a spur pipeline to Yanbu in Saudi Arabia, increased Iraqi export capacity 
from 650,000 barrels a day in 1982, the low point during the war, to 2.5 million 

1 8? 

barrels a day in 1987, or close to prewar output. Iran also realized the danger of 



The War, 1980-88 47 



lifting its oil through Gulf ports and planned a 1200-kilometer pipeline to Jask in 

183 
the Indian Ocean. 

3. 1982: More Efforts at Peacemaking; Iraq's Maritime Exclusion Zone. 

In May 1982 Iraq tried to invoke the Arab League mutual defense treaty to get 
military aid from League members. Syria warned that if Egypt, a League member, 

184 

lined up with Iraq, Syria would go with Iran. The result was a political standoff. 

185 
Algerian attempts to mediate the dispute almost resulted in a breakthrough. 

The Gulf Cooperation Council's emergency meeting in April had declared support 
for efforts to end the war, and its May emergency meeting had adjourned until May 
30 to allow efforts, including those of the ICO, to end the war. When this effort col- 
lapsed, the GCC called on Iran to respond positively to Iraq's peace initiatives. For 
the first time, the Council identified Iran as the intransigent party. The GCC re- 
peated this call in July 1982. This year marked the GCC's awakening to shoulder- 
ing its security responsibilities more forcefully. GCC defense ministers authorized 
comprehensive cooperation in security affairs. Peninsula Shield II was held in 

187 

1984, a result of these decisions. 

In June 1982 the GCC had offered a peace plan : ceasefire, withdrawal to the 1 975 

188 

borders and negotiations on other issues. In July and October Security Council 

1 89 

Resolutions 514 and 522 called for a ceasefire. The UN Secretary-General re- 
ported Iraq was ready to cooperate in implementing Resolution 514, which also 

190 

called for UN observers to supervise a ceasefire and withdrawal. Iran was not; 
the next day (July 13,1 982) Iran launched the first of many offensives into Iraq, the 

191 

first real invasion of its adversary. In September the Arab League urged ending 

192 

the war and complying with Council resolutions. Iraq subscribed to this peace 

193 • <*■ f 

plan, sponsored by Saudi Arabia; Iran rejected it, demanding $1 50 billion in in- 
demnity. Even Saudi Arabia's private offer to pay $50 billion to Iran in indem- 

195 

nity was refused. Israel's invading Lebanon in June also helped blow these 
efforts off course. By late 1982 all Gulf States had policies of strict neutrality be- 
cause of fear of Iran except Kuwait and Saudi Arabia, which strongly favored Iraq. 
Kuwait was fearful of its northern neighbor as well; Iraq continued to demand a 
lease of Kuwait's Bubiyan Island at the Shatt's mouth. Saudi Arabia agreed to pay 
for five Super Etendard fighters, sold by France to Iraq, in Saudi oil money. Ku- 
wait and Saudi Arabia also guaranteed performance of foreign companies' defense 
contracts with Iraq. Observers claim Iraq could not have sustained its war effort 

197 

without the French deliveries. The United States authorized sale of 60 helicop- 

1 Q8 

ters for "agricultural purposes" and $460 million of credits for American rice. 

On August 1 2, 1 982 Iraq had announced its GMEZ, advising it would attack any 
ship within the zone and that tankers docking at Iran's Kharg Island, regardless of 

199 

nationality, would be targets. Kharg was Iran's main export terminal. When an- 
nouncing the GMEZ and "blockade" of Kharg, Iraq stressed that its war zones 



48 The Tanker War 



were designed to cope with difficulties in distinguishing between vessel nationali- 
ties in the Gulf. On August 29 Iran responded, declaring it would protect 
foreign shipping, began escorting foreign shipping, and deployed ships with sur- 
face-to-air missiles at Kharg. Iran began giving naval protection to shuttle convoys 
of Iran-flagged and neutral flag merchantmen lifting oil from Iranian northern 
Gulf ports to those farther down its shore for world export. Iraq attacked ships in 
its GMEZ through September. The GMEZ was modified in November, Iraq 
"ask[ing] all companies and owners of oil tankers that their vessels [would] be sub- 

201 

ject to danger upon entering the . . . zone." In general, however, up to March 

202 

1984, Iraq attacked all ships in its GMEZ. " This aspect of the war was the only 

203 
theater where the initiative lay with Iraq. The US freedom of navigation policy 

was redefined to keeping Gulf access open for nonbelligerents. Contacts with 

the United States increased, and in 1982 the United States removed Iraq from its 

205 
list of States supporting international terrorism, thereby opening a door for 

more Iraq-US contacts, e.g., intelligence information and business. The USSR 
by now had receded from its initial disapproval of Iraq's invasion and began to in- 
crease supplies to Iraq, to the point where the Soviet Union underwrote most of 
Iraq's 1987 defense effort. The USSR was primarily concerned with Iraq's sur- 
vival; an Iranian military victory was not considered to be in the Soviet Union's 

207 
best interests. 

The November 1982 Bahrain Gulf Cooperation Council summit focused on Ira- 
nian complicity in a failed coup in Bahrain, and "More than any other event, [it] 
molded the GCC's view on how to react toward Iran." Although Saudi Arabia 
failed to convince GCC members to help Iraq financially, it succeeded in identify- 
ing the Iranian Islamic Revolution as a threat to the GCC. After the summit GCC 
defense ministers and others conferred to coordinate contingency plans for con- 
taining the war, i.e., to prevent spillover into their territories. These officials asked 
Iran to respond to the ICO, UN and other peace missions; there was no response. 

208 

Given these rejections, the GCC decided to officially support Iraq. In January 
1983 Iran, Libya and Syria issued a "Damascus Communique," condemning Iraq 
and expressing support for Iran. GCC foreign ministers sent a strong rebuke, say- 
ing the Communique did not serve Arab unity and would not help end the war. 
The 1983 Non-Aligned Movement (NAM) summit urged a ceasefire appealing to 
the United Nations to consider a peacekeeping force at the belligerents' bor- 
ders. 209 

4. 1983: Assault on the Environment; The UN Supports Freedom of Navigation. 

On March 2, 1983 Iraq bombed Iran's Nowruz offshore oilfield, causing an im- 
mense slick; previously it had bombed Kharg facilities. 

Efforts to arrange a cease-fire ... to allow anti-pollution activities were unsuccessful, 
and the persistent oil slick in a level of pollution which some experts believed would 



The War, 1980-88 49 



cause permanent damage to the Gulf ecosystem; ... by early June . . . desalination 
plants in Saudi Arabia had to be closed, while Dubai [one of the UAE] announced on 
3 June that it had [imposed a ban] on all imports of fish from neighbouring Gulf 
countries after the discovery that existing stocks had been contaminated by oil. 

In some areas the oil was reportedly two feet thick. International shipping lanes 
were threatened, since many vessels use sea water for cooling and distilling into 
fresh water. Early reports that the slick had equalled the area of Belgium were later 
discounted. Strong winds blew it offshore and partially dispersed it. Iraq rejected 
Iran's request for a partial truce so that oil cappers could try to stop the 2000 to 5000 

210 

barrels a day flow. (A merchantman's allision with a well on January 27 had 

211 

caused part of the spill. ) The United States may have been involved in helping 

212 

get the spill capped. Iran characterized the attack as a clear violation of the Ku- 
wait Regional Convention organization regulations which "strictly prohibited] 

213 

military attacks on oil installations." Iraq countered that the conventions 
"ha[d] no effect in . . . armed conflict." The London-based War Risks Rating 
Committee raised marine cargo insurance rates in 1982 and again in 1984 because 

215 

of Iraqi attacks on Gulf shipping. 

In October the Security Council called for a ceasefire. Resolution 540 "Con- 
demn[ed] all violations of international humanitarian law, in particular . . . the 
Geneva Conventions of 1949 in all their aspects, and call[ed] for the immediate ces- 
sation of all military operations against civilian targets, including city and residen- 
tial areas[.]" The Resolution 

. . . Affirm[ed] the right of free navigation and commerce in international waters, 
callfed] on all States to respect this right and also call[ed] upon the belligerents to 
cease immediately all hostilities in the region of the Gulf, including all sea-lanes, 
navigable waterways, harbour works, terminals, offshore installations and all ports 
with direct or indirect access to the sea, and to respect the integrity of the other 
littoral States. 

The Council "Call[ed] upon both parties to refrain from any action that may endan- 
ger peace and security as well as marine life in the region of the Gulf."' In voting 
to approve Resolution 540, the USSR made it clear that it would firmly oppose 

21 7 

armed intervention in the Gulf for any reason, including freedom of navigation. 
The Gulf Cooperation Council's fourth summit endorsed the resolution. The GCC 
thus went on record, for the first time, to support freedom of navigation in the 
Gulf. 218 

On January 1, 1983 the US Central Command (CENTCOM) had been estab- 
lished to replace the RDJTF to plan and coordinate US military operations in the 
region more effectively. France and Britain continued to maintain a substantial 
Indian Ocean naval presence, with ships regularly sent there. The USSR also 
continued its Indian Ocean presence. President Reagan had reaffirmed and 



50 The Tanker War 



expanded the Carter Doctrine to include US interest in dealing with threats to 
Saudi Arabia and readiness to keep the Strait open if Iran tried to stop shipping 
there. US buildup continued. Operation Staunch sought to curtail the arms 

721 

flow to Iran. US policy had changed in late 1983, following Iraqi officials' visit 
to Washington, where they advised the United States that closing the Gulf to Iraqi 
oil exports had hurt the Iraqi economy and that Iraq would have to increase the 

222 

cost of the war to Iran in order to press Iran to end it. In December 1983 Iran 
sought to revive the Regional Cooperation for Development Agreement with Paki- 
stan and Turkey that the Shah had established in the 1960s. Pakistan and Turkey 

223 
received the overture cordially. 

5. 1984: Attacks on Tankers and Other Shipping; Responses. 

Perhaps presciently, the United States published this Notice to Airmen 
(NOTAM) and NOTMAR in January 1984: 

A. U.S. naval forces operating in international waters within the . . . Gulf, Strait of 
Hormuz and the Gulf of Oman are taking additional defensive precautions against 
terrorist threats. Aircraft at altitudes less than 2000 ft AGL [above ground level] . . . 
not cleared for approach/departure to or from a regional airport are requested to avoid 
approaching closer than five NM [nautical miles] to U.S. naval forces. It is also 
requested that aircraft approaching within five NM establish and maintain radio 
contact with U.S. naval forces on [designated frequencies]. Aircraft which approach 
within five NM at altitudes less than 2000 ft AGL whose intentions are unclear to 
U.S. naval forces may be held at risk by U.S. defensive measures. 

B. This notice is published solely to advise that hazardous operations are being 
conducted on an unscheduled basis; it does not affect the freedom of navigation of 
any individual or State. . . . ^24 

225 
Iran protested this and later "cordon sanitaires" around US warships and air- 

iv 

craft, and US Navy ships transiting Iran's territorial sea during the war. l The 
United States rejected the protests, asserting a right of self-defense. l These 
claims were seen as a hardening of positions between Iran and the United States. 
The US official position was that Iran was refusing to end the war, and not Iraq, 
which had accepted Resolution 540, and that Iraq attacked shipping in its GMEZ, 
while Iran was hitting neutral vessels in international waters. By now 19 US war- 

228 

ships, including a carrier, were in the Gulf area. Britain decided not to use an en- 

229 

velope around its Armilla Patrol. 

In March 1984 the United States reportedly tried to persuade some Gulf States 
to avoid a crisis by letting the United States use their military facilities and to allow 
military supplies prepositioning in Bahrain, Oman and the UAE. The United 
States had coordinated contingency plans with Great Britain for escorting tankers 
and providing air cover in the Gulf and the Strait of Hormuz. US plans also 



The War, 1980-88 51 



reportedly included blockading Kharg Island, mining Iranian Gulf ports and 
commando raids on Iranian bases. However, the United States insisted that it be 
invited into the region and that any arrangement must involve Western allies. The 

730 

mission came to naught. Part of the background for the US initiative may have 
been Kuwait's claim that Iran had attacked Bubiyan Island, owned by Kuwait, and 
Kuwait's complaint of Iranian hospitality to terrorists who hijacked a Kuwaiti air- 

231 

liner and escaped to Iran. 

In February 1984 the Iraqi GMEZ had been extended to 50 miles around Kharg 
Island; Iraq warned that ships approaching Bandar Khomeni or Bushire would be 

737 233 

sunk. Bandar Khomeni approaches had been mined the previous October. 
Britain protested a March 1 Iraqi attack on a convoyed cargo ship, The Charming, in 
the Bandar Khomeni approaches; Indian and Turkish vessels were also at- 
tacked. The war was creeping down the Gulf. Tankers were hit in Iraqi air at- 
tacks on Kharg, and Iraq destroyed Saudi tankers outside its GMEZ. Iran attacked 
Kuwaiti and Saudi tankers, including a supertanker, Yanbu Pride, for the first time 

235 

in April and May 1984. Iraqi attacks were airborne, since the Iran "blockade" 
had effectively bottled up Iraq's relatively weaker naval forces. Iraq had shifted 
its anti-shipping campaign focus in an effort to attack the weak link in Iran's war 

237 

economy and to arouse world interest in the conflict, perhaps to "draw in other 
states, the Western powers in particular, in the hope that they would support Iraq 

238 

and help to bring about a peaceful settlement." Iraq had some success in dis- 
rupting Iranian oil exports; its attacks promoted third State measures designed to 

239 

protect their nationals' commercial interests. In attacking mostly neutral-flag 
tankers sailing independently, 

Iraq appears to have devoted minimal effort to obtaining visual identification of the 
target before [launching missiles;] . . . accidents . . . did occur. Iran does not appear to 
have begun attacking commercial shipping until Iraq commenced its anti-tanker 
campaign — Since there was no sea traffic with Iraq, Iran attacked neutral merchant 
shipping destined to and from neutral ports . . . , presumably ... to persuade Iraq's 
financial backers, the other Gulf States, to dissuade Iraq from its campaign against 
the Kharg Island tankers. Iran's attacks on merchant shipping were less numerous . . . 
and, in general, less costly in lives and property . . . , [being] conducted with rockets 
instead of missiles. . . . Iran devoted more effort to target identification than did 
Iraq. . . . Iran did not conduct its attacks in declared . . . zones[,] and some . . . attacks 
were ... in neutral territorial waters. 240 

This expansion of the Tanker War led the United States to grant a Saudi request to 
buy Stinger short-range air defense missile systems. The USSR supplied Iraq 
with weapons, consistent with its bilateral friendship and cooperation treaty, and 
at the same time Soviet weaponry may have found its way to Iran through North 
Korea and the PRC. Soviet arms sales seemed to follow the fortunes of the battle- 
field and Soviet failure to achieve influence within Iran. France was becoming a 



52 The Tanker War 



heavy supplier to Iraq and in 1984 sold $4.5 million in arms to Saudi Arabia, 
which may have found their way to Iraq. Sweden began selling arms to Bahrain 
but mostly to Iran through middlemen in Austria, Brazil, Ecuador, Singapore, 
Thailand and Yugoslavia. Among these sales were 40 "pleasure cruisers," as desig- 
nated by a Swedish manufacturer, to the Iranian coast guard. At the same time the 
UN Secretary-General chose a Swedish politician who later became prime minis- 
ter, Olaf Palme, as mediator between the belligerents. 

The Tunis May 9-10 Arab League Summit Conference strongly condemned at- 

248 

tacks on Kuwaiti and Saudi tankers. The Soviet Union was concerned that Ira- 
nian attacks on the tankers would result in a major regional war on its borders and 
a possibility of US intervention. Although the USSR negotiated with Iran in June 
1984 concerning Soviet military support of Iraq, little changed in Soviet behavior, 

which was becoming increasingly pro-Iraq, partly due to Iranian purges of pro-So- 

• T 249 
viet groups in Iran. 

In April an Iraq-laid mine had damaged a Saudi tanker, and in May Iran initi- 

250 

ated a retaliatory policy against Arab shipping. On May 2 1 the GCC States com- 
plained to the Security Council about Iranian "acts of aggression on the freedom of 
navigation" to and from their ports, asserting that "Such acts of aggression consti- 
tute a threat to the stability and security of the area and have serious implications 

251 

for international peace and security."' Iran justified the attacks on reaction 
against aid to Iraq by States in the region, and "indivisibility of security in the . . . 

252 

Gulf." Although this argument concededly had no basis in law, Iran hoped tar- 

■ 253 
get States would pressure Iraq, whom they had been supplying, to stop attacks 

on Iran. During Council meetings many States addressed freedom of navigation. 

. . . Norway . . . expressed regret that ships had been attacked in international waters 
outside the declared war zones, and stated that free and safe navigation should be 
secured for international shipping in the area. . . . Kuwait said that attacks against 
Saudi and Kuwaiti tankers were acts of aggression committed against . . . two 
countries . . . not parties to the . . . conflict, carried out in violation of . . . conventions 
according to which the high seas [were] open to all countries. This view was shared in 
general terms by other Gulf States such as Bahrain, Oman, [UAE] and Saudi Arabia. 
Yemen also denounced those attacks aimed against tankers belonging to States . . . 
not parties to the conflict. The importance of . . . free navigation and free commerce 
was further stressed by . . . Ecuador, [FRG], India, Jordan, Liberia, Morocco, 
Pakistan, Somalia and Sudan[.] . . . Panama called on the . . . Council to take action to 
ensure that the right of free navigation and trade in international waters might be 

effectively exercised by all [T]he Netherlands pointed out the legal aspects of the 

attacks on shipping in the Gulf, recognizing that under international law belligerents 
may . . . restrict shipping to and from ports of . . . belligerents, and that such measures 
do of necessity affect the rights of third States under whose flags such shipping is 
conducted; . . . deliberate and indiscriminate attacks against merchant shipping in 
any part of the Gulf were to be considered absolutely outside the scope of the 
permissible use of armed force. The Soviet Union, . . . restating that any foreign 



The War, 1980-88 53 



armed intervention in the . . . Gulf was inadmissible, no matter what the pretext, 
asserted that international law demand[ed] strict observance of . . . freedom of 
navigation, as laid down in general maritime law and in binding treaty obligations. 
The other permanent members of the . . . Council reaffirmed in rather general terms 
the legitimate rights and interests of third States. 2 ^ 

The Arab League Secretary General also invited the Council to take appropriate 
measures to protect navigation in the region and to ensure safety of international 
sea lanes and channels. Many States addressing the Council had vessels under 
their registries, perhaps under flags of convenience (e.g., Liberia, Panama), or were 
major carriers, in the Gulf trade. Many had been or would be major naval players in 
the Tanker War. The resulting Resolution 552 (June 1, 1984) 

. . . Call[ed] upon all States to respect, in accordance with international law, the 
right of freedom of navigation; . . . Reaffirmed] the right of free navigation in 
international waters and sea lanes for shipping en route to and from all ports and 
installations of the littoral States that are not parties to the hostilities; . . . Call[ed] 
upon all State to respect the territorial integrity of the States . . . not parties to the 
hostilities ...;... Condemned] the recent attacks on commercial ships en route to and 
from the ports of Kuwait and Saudi Arabia; . . . Demand[ed] that such attacks should 
cease forthwith and that there should be no interference with ships en route to and 
from States . . . not parties to the hostilities; . . . Decide[ed], in the event of 
non-compliance with the present resolution, to meet again to consider effective 
measures . . . commensurate with the gravity of the situation ... to ensure the freedom 
of navigation in the area . . . .258 

ICQ 

A GCC draft resolution would have named Iran as an aggressor. A week later the 
London Economic Summit of major Western powers and Japan 

. . . expressed [its] deep concern at the mounting toll in human suffering, physcial 
damage and bitterness that this conflict has brought; and at the breaches of 
international humanitarian law that have occurred. 

. . . The hope and desire ... is that both sides will cease their attacks on each other 
and on the shipping of other States. The principle of freedom of navigation must be 
respected. We are concerned that the conflict should not spread further and we shall 
do what we can to encourage stability in the region. 

. . . We also considered the implications for world oil supplies [T]he world oil 

market has remained relatively stable. . . . [T]he international system has both the 
will and the capacity to cope with any foreseeable problems through the continuation 
of the prudent and realistic approach . . . being applied. 2 ^ 

Almost simultaneously Saudi aircraft, with US AWACS help, downed an Iranian 
fighter over the Gulf after two warnings; there was a dispute as to whether it was in 
international or Saudi airspace, but in any event Iran appeared unwilling to 



54 The Tanker War 



challenge the Saudis. Two weeks later Saudi Arabia established an Air Defense 
Identification Zone (ADIZ), the Fahd Line, beyond Saudi territorial sea limits. 
This allowed Saudi interceptors, guided by US AW ACS and refuelled by US air 
tankers, to engage other aircraft, primarily Irani, threatening shipping. Saudi 
Arabia also proclaimed a 12-mile safety corridor within the GCC States' territorial 
sea. It was intended to provide security for neutral shipping carrying oil from Ku- 
wait and other supporters of Iraq. 

At the same time, however, pragmatists within Iran tried to reassure GCC 
States; a diplomatic breakthrough for Iran came a year later, in May 1985, when 
the Saudi foreign minister paid an official State visit. There were also high-level 
exchanges between Iran and Oman and the UAE. The one area where diplomatic 
progress eluded Iran was the tanker war. Even here, for more than a year Kuwait 
and Saudi Arabia tried to resolve differences through bilateral negotiations. The 
Tanker War was not amenable to diplomatic solution between the Gulf Arabs and 
Iran, because it was an Iraqi war policy. Iraq controlled the timing and intensity of 
attacks on Iranian shipping and oil installations; with fewer operational aircraft 
and weapons, Iran had to choose when and against whom to respond. Tankers car- 
rying Kuwaiti oil became special targets of Iranian attacks because of all the GCC 
countries, Iran had the least friendly relations with Kuwait, which was far weaker 
militarily than Saudi Arabia. 

During the summer of 1984 mines detonated in the Gulf of Suez and the Strait 
of Bab el Mandeb, choke points for the Red Sea to the west of Saudi Arabia, damag- 
ing several ships. Although Iran and Libya were accused of laying the mines, Iran 
denied the charges; it is thought that the Libyan cargo ship Ghat laid them. Egypt 
exercised its right under the Constantinople Convention to inspect all shipping, 
and a half dozen navies cooperated in locating and destroying the mines. Saudi 
Arabia received US assistance in sweeping its ports of Jidda and Yanbu. 

A UN-sponsored ceasefire in the land war supposedly lasted from June 1984 to 
March 1985. The belligerents agreed to stop attacks on civilian population cen- 
ters. Iran proposed that the truce include Gulf shipping as well, and Iraq in- 
sisted that any agreement must allow it to repair or replace its Gulf oil export facili- 
ties. Impasse resulted. Kuwait also negotiated with the Netherlands to buy 
mine-hunting ships; a UK order had forbidden export of small boats and boat 
parts. 268 

The UN Secretary-General report mandated by Resolution 552 included States' 
concerns over incidents since June 4. The report, later supplemented, expressed 
International Transport Workers Federation (ITF) "deep concern" over "serious 
escalation of attacks on innocent and neutral merchant ships and their crews" in 
the war. The International Chamber of Shipping (ICS) chair and the President of 
the International Shipping Federation (ISF) also declared that merchant shipping 
attacks "had led to much loss of life and to the destruction and damage of many 



The War, 1980-88 55 



vessels; they appealed to the Secretary-General and the [UN] to continue efforts to 
end the attacks." The Secretary-General brought these concerns and Resolution 

269 

552 to the belligerents' attention. 

6. 1985: War of the Cities Renewed; The Tanker War Continues; 
Heightened Responses. 

270 

In 1985 the truce was broken; the War of the Cities was renewed. In April Eu- 
ropean heads of State issued a declaration asking for the war to end and for 
belligerents to stop using chemical weapons; at the same time, however, large ship- 

271 

ments of European arms began arriving in Iraq. Iraq successfully renewed at- 
tacks on Kharg and Iranian tankers; Iran restarted a campaign against neutral 

272 

tankers with less success. By the end of 1985 "the tanker war had [become] the 

773 

most important feature of the Iran-Iraq War." In June 1985 Iran had inter- 
cepted and detained A l-Mu haraq, a Kuwaiti-flag ship Kuwait bound but suppos- 
edly carrying "5 tonnes of merchandise clearly intended for Iraq." Iraq had been 
using Kuwait as an entry port for goods since the beginning of the war. (It was 

275 

only in late 1987 and early 1988 that Iran enacted a prize law; this ex post facto 

legislation was justification for seizure of Al-Muharaq and other Kuwait-bound 

ships.) In September Iran's visit and search procedures, looking for strategic 

materials for Iraq, were stepped up. Although Iran could not (or chose not to try 
277 ... . . . 

to) close Hormuz by military action, Iran might succeed in scaring off enough 

shipping to make a difference, since oil sales financed Iraq's war effort, and it 

had to ship through the Gulf, being denied Mediterranean Sea pipeline access ex- 

279 
cept through Turkey. Iranian crude was now being ferried in Iranian tankers 

from Kharg to Sirri Island in the lower Gulf, where it was stored in "mother" ships 

for transfer to customers' tankers. Iranian tanker shuttles also operated between 

280 

Kharg and Lavan Island in the lower Gulf. Iran also established a helicopter 
base on its offshore Reshadat oil platform 75 miles from the Qatari coast. Iran 
was also beginning to feel the pinch of seriously depleted stocks of replacement 

282 

parts, particularly for its air force. 

The August 1985 Casablanca Arab League summit supported prior resolutions 
favoring Iraq. "It was against this background that Baghdad mounted its effective 

283 

air strikes against Kharg oil terminal." Algeria, Lebanon, Libya, South Yemen 
and Syria boycotted the meeting; in June 1985 Libya and Iran had signed a Strate- 
gic Alliance Treaty. These moves were seen as evidencing growing division in the 

284 

Arab world over the war. Turkey continued to support Iraq, the United States 
had formally restored diplomatic relations with Iraq in November 1984, and the 
US-Iraq trade became three times (at $1 billion), that of the USSR with Iraq. Direct 
links between the US embassy in Baghdad and the United States were estab- 

785 

lished. France continued as a major supplier for Iraq, although she also supplied 
Iran. China was Iran's major supplier through North Korea, but it too supplied 



56 The Tanker War 

Iraq, through Egypt. Iran was becoming more isolated, however. At the same 
time Soviet sales to Iraq increased, the USSR reduced oil imports from financially 

287 

strapped Iran. 

Because of the belligerents' actions, the United States published this NOTMAR 
Special Warning in September 1985: 

1. U.S. Mariners are advised to exercise extreme caution when transiting the . . . 
Gulf which are becoming increasingly dangerous due to continued attacks on vessels 
outside the military zones declared by Iran and Iraq. 

2. In view of recent Iranian visit, search, and in some cases seizure of vessels of 
third countries within the . . . Strait of Hormuz, and the Gulf of Oman, U.S. mariners 
are advised to exercise extreme caution and to be alert to possible hazardous 
conditions, including hostile actions, when transiting these waters. 

3. . . . Iran . . . has issued guidelines for the navigational safety of merchant 
shipping in the . . . Gulf, the relevant portions of which are . . . : 

— After transiting . . . Hormuz, merchant ships sailing to non-Iranian ports 
should pass 12 miles south of Abu Musa Island; 12 miles south of Sirri Island; 
south of Cable Bank Light; 12 miles south of Farsi Island; thence west of a line 
connecting the points 27-55N, 49-53E, and 29-ION, 49-12E.; thereafter south 
of the line 29-ION, as far as 48-40E. 

— All Iranian coastal waters are war zones. 

— All transportation of cargo to Iraqi ports is prohibited. 

— . . . Iran . . . will bear no responsibility for merchant ships failing to 
comply with the above instructions. 

4. Deep draft shipping should be aware of shoal waters south of Farsi Island. 

5. . . . Iraq . . . has stated that the area north of 29-30N is a prohibited war zone. It 
has warned that it will attack all vessels appearing within a zone believed to be north 
and east of a line connecting the following points: 29-30N, 48-30E, 29-25N, 49-09E, 
28-23N, 49-47E, 28-23N, 51-00E. . . . Iraq ... has further warned that all tankers 
docking at Kharg Island regardless of nationality are targets for the Iraqi Air Force. 

6. In view of continued hostilities between Iran and Iraq and recent acts of 
interference or hostility against vessels of their countries, U.S. mariners are advised, 
until further notice, to avoid Iranian or Iraqi ports and coastal waters and to remain 
outside the areas delimited in paragraphs 3 and 5 above. 

The NOTMAR added that the United States did not recognize the validity in law 

TOO 

of any foreign rule, regulation or proclamation so published. "While the United 
States obviously recognized provocations by both sides . . . , it . . . regarded Iranian 
attacks against neutral shipping as the major problem. [US] policy regarding the 
war was to avoid military involvement, if possible, while providing friendly Gulf 

• 289 

States with [means] ... to defend themselves." For example, while asserting 
freedom of the seas and straits transit passage policies, the United States offered to 
work with the GCC and to help it militarily if aid was requested publicly and there 
was access to suitable facilities. At about the same time GCC-Iran relations 



The War, 1980-88 57 



291 
appeared to be improving. Individual GCC members' policies continued as 

before, however. Saudi Arabia and Kuwait aided Iraq with $4 billion in 1984, and 

late that year Iranian aircraft penetrated the Saudi ADIZ and hit a Kuwait-bound 

freighter. There was an assassination attempt on the Kuwaiti emir in May 1985, 

292 *• 

said to have been fomented by Iran. The United Kingdom announced a $3-4 

293 

billion sale of combat aircraft to Saudi Arabia. The UAE mostly continued to 
support Iran, with $1 billion in trade between them. The UAE was concerned 
about its offshore oil facilities, which pumped two-thirds of its oil. Moreover, 20 

294 

percent of its population were Shiites. 

In October 1985 France began defending French-flag merchantmen. A French 
warship positioned itself between the Ville d 'Angers and an Iranian warship, warn- 
ing the Iranian that it would use force if the Iranian tried to intercept Ville d' Angers. 
French ROE declared that French warships would fire on forces refusing to break 
off attacks on neutral merchant ships; the result was a drop in attacks near French 

295 

men-of-war. 

7. 1986: Boarding of Merchant Ships; Attacks on Shipping and Port Facilities. 

On January 12, 1986 Iran boarded and searched the President Taylor, a US-flag 

296 

vessel. The United States acknowledged a belligerent's right to board and 
search but cautioned about overstepping rights and norms, "and even violence, in- 

297 

herent in all ship search incidents." Later that month the UK justified Iranian 

298 

interceptions and seizures of UK-flagged merchantmen as self-defense. The 
Netherlands recognized the right of visit and search but only for ships proceeding 

299 

to and from belligerents' ports. In April 1986 a US destroyer warned an Iranian 
warship off what may have been a planned boarding oiS.S. President McKinley, a 
US flag merchantman. 

In February 1986 Security Council Resolution 582 called for a ceasefire; it "De- 
plore[d] the escalation of the conflict, especially territorial incursions, the bombing 
of purely civilian population centres, attacks on neutral shipping or civilian air- 
craft, the violation of international humanitarian law and other laws of armed con- 
flict and, in particular, the use of chemical weapons contrary to . . . the Geneva Gas 
Protocol." That month Iraq extended its exclusion zone up to an area close to 

301 

Kuwaiti territorial waters. Also in that month, the United States concluded its 
agreement with the United Kingdom for use of Diego Garcia as a naval support fa- 
cility. 302 

In May, after more Iranian strikes on shipping, the United States reaffirmed a 
commitment to Saudi self-defense, freedom of navigation, free flow of oil, and 

303 

open access through Hormuz. That day Iran warned that its naval forces would 
attack US warships escorting or convoying cargo ships carrying cargo for Iraq or 
which tried to interfere with Iran's interception procedures. A US May 14 
NOTMAR advised: 



58 The Tanker War 



1. U.S. naval forces operating in international waters within the . . . Gulf, Strait of 
Hormuz and the Gulf of Oman and the Arabian Sea north of twenty degrees north are 
taking additional defensive precautions against terrorist threats. All surface and 
subsurface ships and craft are requested to avoid closing U.S. forces closer than five 
nautical miles without previously identifying themselves. U.S. forces especially 
when operating in confined waters, shall remain mindful of navigational 
considerations of ships and craft in their immediate vicinity. It is requested that radio 
contact with U.S. naval forces be maintained on [designated frequencies] when 
approaching within five nautical miles of U.S. naval forces. Surface and subsurface 
ships and craft that close U.S. naval forces within five nautical miles without making 
prior contact and or whose intentions are unclear to such forces may be held at risk by 
U.S. defense measures. 

2. These measures will also apply when U.S. forces are engaged in transit passage 
through . . . Hormuz or when in innocent passage through foreign territorial waters 
and when operating in such waters with the approval of the coastal State. 

The Notice was published "solely to advise that measures in self-defense will be ex- 
ercised by US naval forces [and] will be implemented in a manner that does not 

30S 

impede the freedom of navigation of any vessel or State." 

In August Iraq bombed Iran's Sirri oil terminal for the first time; a UK-regis- 
tered, Hong Kong-owned tanker was badly damaged. By that month Iraq had hit 
five of the 1 1 shuttle tankers operating between Kharg and Sirri. Iran's Lavan and 
Larak oil terminals were bombed later that year. In September 1986 Iranian war- 
ships fired on, stopped and searched a USSR merchantman, Pyotr Emtsov, Kuwait 
bound with arms ultimately destined for Iraq. During 1985-86 Iran inspected 

307 

over 1000 vessels. In October Security Council Resolution 588 called for com- 

308 

pliance with Resolution 582. In November Iraq bombed the UAE Abu al- 

309 

Bukhosh off-shore oil installations. The 1986 Iraqi attacks reduced Iranian oil 

production considerably; a fall in world oil prices aggravated Iran's economic 

• 310 
straits. 

A November 20 US International NOTAM reported Iranian airspace was 

closed to US-flag aircraft and that 

U.S. Naval Forces in the . . . Gulf, Strait of Hormuz, Gulf of Oman, and Arabian 
Sea (North of 20 Degrees North) are taking additional defensive precautions against 
terrorist threats. Aircraft at altitudes less than 2000 ft. AGL which are not cleared for 
approach/departure to or from a regional airport are requested to avoid approaching 
closer than 5 nm to U.S. Naval Forces. 

It is requested that aircraft approaching within 5 nm of U.S. Naval Forces 
establish and maintain radio contact with U.S. Naval Forces on [certain frequencies]. 
Aircraft which approach within 5 nm at altitudes less than 2000 ft. AGL whose 
intentions are unclear to U.S. Naval Forces may be held at risk by U.S. defensive 
measures. . . .^U 



The War, 1980-88 59 



In that month UK naval presence increased due to increased attacks on neutral 

312 
shipping. 

Iraq began to default on foreign loans, but its leading creditors — the FRG, 
France, Japan and Turkey — rescheduled debts, along with India and Yugoslavia. 
By 1986 Iraq's pipeline through Saudi Arabia was in operation, and another 
through Turkey was under construction. Oil sales from these conduits would reas- 
sure creditors. The USSR began a massive military support program of $4.9 bil- 
lion for 1986, compared with $4 billion for the previous year, for Iraq. However, in 
August Saudi Arabia had to abandon its price-war strategy at the Organization of 
Petroleum Exporting Countries (OPEC), which helped its relations with Iran. 
The Soviet Union, under Mikhail Gorbachev's leadership, appeared to begin a 

new policy toward the war, resolving to ending it by expanding diplomatic con- 

315 
tacts with Iran. Nevertheless USSR arms sales to Iraq continued until the end. 

By the next year the Soviet Union was in effect underwriting much of the Iraqi de- 

2 1/: 

fense effort. Although not known at the time, US arms sales to Iran through Is- 

317 

rael in what came to be known as the Iran-Contra affair began about then. A 
Danish-flag vessel, Else-HT, made voyages with these goods on board in May and 
June from Eilat, an Israeli port on the Gulf of Aqaba and near Jordan's Port of 

318 

Aqaba, to Bandar Abbas. After an Iranian attack on a UK merchantman in Sep- 
tember, Britain closed Iran's military procurement office in London. Britain was 

319 

Iraq's second largest nonmilitary supplier. UK companies helped with tools 

320 

and parts too. 

8. 1987: Escalating US Involvement; Reflagging and Convoys; 
Attack on U.S.S. Stark. 

In late January 1987 the ICO met in Kuwait and heard the UN Secretary-Gen- 
eral call for an international panel to determine war guilt. Iran boycotted the meet- 
ing. The United States moved six warships, usually based in Bahrain, to the upper 

371 

Gulf to provide naval cover for the meeting. About then an Italian yard deliv- 
ered two corvettes and a support ship to Iraq; they sailed for Alexandria, Egypt, en 
route to Umm Qasr, an Iraqi port. Warned of a possible Iranian Silkworm attack, 

322 

they returned to Italy. 

In March 1987 the United States expressed concern over Iran's testing 1100- 
pound warhead, 85 kilometer range, PRC-manufactured Silkworm missiles in the 
Gulf. Kuwait became increasingly concerned about Iranian attacks on its tankers 
and requested Soviet and US protection. Internationalization of the Tanker War 
was "exactly what [Iran] wanted to avoid, but . . . that is precisely what happened." 

373 

The war had entered a new phase. (A US congressman also suggested mining 

374. 

Iranian ports to force it to stop its attacks in the Gulf.) In April Iran delivered a 
note through Algeria concerning the right of transit passage through the Strait of 
Hormuz. The US response rejected an Iranian claim that LOS Convention 



60 The Tanker War 



principles were contractual and not customary in nature, saying the LOS Conven- 
tion represented longstanding customary law. The United States also "re- 
jected]. . . any claim by Iran of a right to interfere with any vessel's lawful exercise 

325 

of the right of transit passage in a strait used for international navigation." 

In May Kuwait and the United States completed negotiations leading to trans- 
fer of 11 tankers owned by Kuwaiti Oil Tanker Co. (KOTC), the Kuwaiti State 
shipping company, from the Kuwaiti to the US flag. This preempted the USSR, 
which had to settle for chartering three tankers to Kuwait; these charters were 
later renewed into 1 988. The Soviet Union was "deliberately vague on the ques- 

327 

tion of military protection." The UK position, stated in Parliament after the 
first US convoy sailed, was that vessel owners were free to reregister their vessels as 
long as national requirements were met, and that with reregistration went an obli- 

328 

gation for the Royal Navy to defend these vessels. Three KOTC tankers were 

329 
later reregistered in Britain. The USSR kept its arrangement with Kuwait in 

perspective; a rapid Soviet naval buildup in the Gulf might prompt a much greater 

US naval presence and might provoke GCC concerns about the USSR, both con- 

330 
trary to Soviet interests. In June 1 987 a Soviet Deputy Foreign Minister said the 

USSR had no intention of increasing its naval force in the Gulf. Although as- 
sailed in some quarters, most commentators felt US reflagging comported with in- 

332 

ternational law. " Iran tried to pursuade Kuwait to stop the reflagging process; 
when this failed, Iran declared that Kuwait had practically turned itself into an 
Iraqi province with its resources at the disposition of France, the USSR and the 
United States. Iran said it could not allow Iraq to receive guaranteed oil income to 

333 

beef up its war machine through Kuwaiti tankers flying other flags. " 

At about this time an Iranian patrol boat fired on and damaged a Soviet mer- 
chantman, Ivan Koroteav. In mid-May a Soviet tanker chartered to Kuwait, Mar- 
shal Chuykhov, hit a mine which the USSR said Iran laid. A second Kuwait-bound 
tanker was mined on June 19. Mines were detected in approaches to the channel 
leading to Kuwait's Mina Ahmadi terminal. Mines began appearing through- 
out the Gulf. Iranian small boats, Revolutionary Guards crewed, laid them just be- 
fore a preselected vessel arrived in the area. " * The Saudi and US navies took a 

336 

month to clear the channel to Kuwait and its approaches. "' A Soviet response to 

337 

attacks on its merchantmen was to deploy three more minesweepers to the Gulf. ~ 

On May 17 two Iraqi fighter-launched Exocet missiles hit the frigate U.S.S. 
Stark, presumably unintentionally. There were deaths and injuries among its crew 

338 

and severe damage to the ship. (In 1989 Iraq paid US claims for the Stark at- 

339 

tack.) There is no report of the extent of pollution resulting from loss of bunker 
fuel; this appears to be true for later attacks on naval vessels in engagements. The 
United States added three ships to MIDEASTFOR, ordered its forces to a higher 
state of alert and revised its Rules of Engagement (ROE) for possible interac- 
tions between US and Iraqi forces and anyone else displaying hostile intent or 



The War, 1980-88 61 



committing hostile acts. UK ROE continued to reflect Britain's view that the 
UN Charter, Article 51, governed UK responses. "The rules of engagement 
[were] intended to avoid escalation, although the varied nature of potential threat 
and the possibility of surprise attack [were] recognized and the inherent right of 
self-defence of Royal Navy ships or British merchant vessels under their protec- 
tion, is not circumscribed or prejudiced." The result would have posed "interest- 
ing questions" if a UK warship could have defended UK merchantmen or 
British-crewed ships. One "practical solution" might have been that attack on a 
merchant ship "might reasonably [have been] perceived as an attack on the war- 
ship as well. In that situation, the warship [would] be able to defend itself and in 
doing so defend the merchant vessel accompanying it." The nature of other na- 
val participants' ROE have not been published, but undoubtedly they reflected, or 
were limited by, States' views on the scope of self-defense, national policies, and 
defense capabilities. 

The US ROE had their complement in a July 1 987 US NOTAM and NOTM AR: 

A. In response to the recent attack on . . . Stark and the continuing terrorist threat 
in the region[,] U.S. naval vessels operating within the . . . Gulf, Strait of Hormuz, 
Gulf of Oman and the Arabian Sea, north of 20 degrees north, are taking additional 
defensive precautions. It is requested that aircraft (fixed wing and helicopters) 
approaching U.S. naval forces establish and maintain radio contact with U.S. naval 
forces on [designated frequencies]. Unidentified aircraft whose intentions are 
unclear or who are approaching U.S. naval vessels may be requested to identify 
themselves and state their intentions as soon as they are detected. . . . [T]o avoid 
inadvertent confrontation, aircraft . . . including military aircraft may be requested to 
remain well clear of U.S. vessels. Failure to respond to requests for identification and 
intentions or to warnings and operating in a threatening manner could place the 
aircraft at risk by U.S. defensive measures. Illumination of a U.S. naval vessel with a 
weapons fire control radar could result in immediate U.S. defensive reaction. 

The notice was published "solely to advise that measures in self-defense are being 
exercised by US naval forces in this region." The NOTAM/NOTMAR closed: 
"[T]hese measures will be implemented in a manner that does not unduly interfere 
with the freedom of navigation and overflight[.] . . ." This Notice was revised in 
September 1987: 

In response to the recent attack on . . . Stark and the continuing terrorist threat in 
the region, U.S. naval vessels operating within the . . . Gulf, Strait of Hormuz, Gulf of 
Oman, and the Arabian Sea, north of 20 degrees north, are taking additional 
defensive precautions. Aircraft (fixed wing and helicopters) operating in these areas 
should maintain a listening watch on [certain frequencies]. Unidentified aircraft, 
whose intentions are unclear or who are approaching U.S. naval vessels, will be 
contacted on these frequencies and requested to identify themselves and state their 
intentions as soon as they are detected. . . . [T]o avoid inadvertent confrontation, 



62 The Tanker War 



aircraft . . . including military aircraft may be requested to remain well clear of U.S. 
vessels. Failure to respond to requests for identification and intentions, or to 
warnings, and operating in a threatening manner could place the aircraft ... at risk by 
U.S. defensive measures. Illumination of a U.S. naval vessel with a weapons fire 
control radar will be viewed with suspicion and could result in immediate U.S. 
defensive reaction. This notice is published solely to advise that measures in 
self-defense are being exercised by U.S. naval forces in this region. The measures will 
be implemented in a manner that does not unduly interfere with the freedom of 
navigation and overflight. . . . 

U.S. naval forces in the . . . Gulf, Strait of Hormuz, Gulf of Oman, and Arabian Sea 
(North of 20 Degrees North) are taking additional defensive precautions against 
terrorist threats. Aircraft at altitudes less than 2000 ft AGL which are not cleared for 
approach/departure to or from a regional airport are requested to avoid approaching 
closer than 5nm to U.S. naval forces. 

It is requested that aircraft approaching within 5nm of U.S. naval forces establish 
and maintain radio contact with U.S. naval forces on [designated frequencies]. 
Aircraft approaching within 5nm at altitudes less than 2000 ft. AGL whose 
intentions are unclear to U.S. naval forces may be held at risk by U.S. defensive 
measures. . . . ^46 

This was a much stronger statement of intentions than the Notice of a year ear- 
lier. "In the wake of the Kuwaiti reflagging, it was (perhaps deliberately) left un- 
clear as to how far the [US] protective umbrella was to extend." Promises of escort 
for US- flagged ships would "depend ... on the situation" as well as for foreign flag 

348 

shipping in certain cases. The US reaction may have been partly due to media 
reports of Iran's training 20,000 Revolutionary Guards to attack US ships in fast 

349 

Swedish-built "pleasure boats." 

350 

In July the US Navy began convoying reflagged tankers. Previously the 
United States "had found intermittent convoys an effective deterrent to Iranian 
action. Indeed, Iran refrained from harassing ships carrying other flags when they 
sailed in the vicinity of US warships." Only a small percentage of tankers plying 

352 

the Gulf were convoyed, however. Reflagged tankers carried no contraband to 
or oil from Iraq. "' On July 24 the reflagged Bridgeton and on August 10 the Texaco 
Caribbean, under charter to a US company, hit mines; the Navy began providing 
mine protection. (Although US Navy destroyer types had escorted Bridgeton to 
Kuwait, the Navy outfitted Kuwaiti commercial tugs with minesweeping gear for 

the return trip. When civilian tug crews refused to undertake minesweeping, Navy 

355 
volunteers manned the tugs for the return. "[T]he [Bridgeton] incident opened a 

356 

chapter of direct US-Iran naval confrontation in the Gulf." Whether a result of 
deliberate Iranian decision or Iranian Revolutionary Guard fervor, mines began 
appearing all over the Gulf and outside the Gulf, in the Strait of Hormuz and Gulf 
of Oman, and in Kuwaiti and Omani territorial waters. French and UK naval 



The War, 1980-88 63 



357 
operations expanded to meet the threat in the latter areas. In late August U.SS. 

Guadalcanal rescued an Iraqi fighter pilot downed by an Iranian air-to-air missile 

in international waters. He was repatriated through Saudi Red Crescent Society of- 

358 
ficials. There is no record of Iranian consent or protest. 

The UK Armilla Patrol began "accompanying" but not escorting or convoying 
UK merchantmen; one result was that foreign vessels were attracted to UK regis- 
try to gain protection, at least in the lower Gulf, where there were new mine 
threats. British vessels were not armed against attacks; UK seafarer unions op- 
posed arming. Italy opposed it as a matter of policy too. After Iranian forces 
attacked a French flag cargo ship, Ville d'Anvers, France broke off diplomatic rela- 
tions. However, even with reinforced naval presence, it could not organize convoy 
protection on the US model and relied on a policy of accompanying French flag 
ships. The USSR sent a Krivak class frigate to escort four Soviet ships carrying 
arms from the Strait of Hormuz to Kuwait for ultimate destination in Iraq, a signal 

36? 

to belligerents that the USSR would protect Soviet-flag ships. Some merchant- 
men began to carry chaff canisters to confuse incoming missiles; others were re- 
painted dull, non-reflective gray for the same reason. Although most merchant 
ships remained unarmed, a US helicopter reported coming under missile fire from 
a Greek ship. Iran reportedly completed testing its Silkworm missiles. Press re- 
ports said Iran's air force had established a suicide plane squadron to attack mer- 
chant shipping like the World War II Japanese kamikazi flights. Iran began 
three days of naval maneuvers in the Gulf, dubbed Exercise Martyrdom, which in- 
volved firing a shore-to-ship missile and ramming a speedboat loaded with explo- 
sives into a dummy naval target. Some Iranian naval maneuvers were in Saudi 

365 

territorial waters. Besides traditional boardings, Iran began using helicopters 

366 

for visit and search. The Gulf was becoming a more dangerous place as actors 
crowded the arena and employed new techniques for old methods and new 
technologies. 

Two US warships' Sparrow missiles shot at a radar target suspected of hostile 

367 

intent missed, and warning shots were fired across two dhows' bows in August. 
The US Navy, claiming a right of self-defense, captured the Iranian landing ship 

368 

Iran Ajr caught laying mines in September. Three Iranian crew died, two were 
lost at sea, and the United States repatriated 26 crewmen to Iran through Omani 
Red Crescent auspices five days later. Shortly thereafter they were turned over to 
Iranian officials, along with the remains of the three who had died. It is not known 

369 

whether Iraq consented or objected to these arrangements. Iran asserted that 

self-defense could only be claimed in response to an armed attack and that this was 

370 
aggression. It also promised revenge and gave an "explicit warning" that it 

371 

would soon be engaged on another front. However, the US attack "effectively 

37? 

halted Iranian minelaying for six months." But by mid- 1987 Iranian aircraft, 
helicopters, small boats and warships had attacked over 100 ships of 30 nationalities. 



64 The Tanker War 

373 

Iraq had attacked over 200 vessels, mostly Iranian owned or chartered. In late 
May 1987 the USSR had sent three minesweepers to join two frigates that had pa- 
trolled the Gulf since 1986; this was in response to Iranian mining of Soviet-flag 
ships. 374 

The June 1987 Venice Economic Summit had "agree[d] that new and concerted 
international efforts [were] urgently required to bring the Iran-Iraq War to an 
end." Besides calling upon the belligerents to end the war and supporting the 
United Nations, the Summit "reafflrm[ed] that the principle of freedom of naviga- 
tion in the Gulf is of paramount importance for us and for others and must be up- 
held. The free flow of oil and other traffic through the Strait . . . must continue 

unimpeded." The Summit pledged to consult on ways to pursue these important 

375 
goals effectively. In July unanimous UN Security Council Resolution 598 

Deplor[ed] . . . bombing of purely civilian population centres, attacks on neutral 
shipping or civilian aircraft, the violation of international humanitarian law and 
other laws of armed conflict, and . . . use of chemical weapons contrary to . . . the 1925 
Geneva Gas Protocol, . . . Demand[ed that belligerents] . . . observe an immediate 
cease-fire [and] Call[ed] upon all other States to exercise the utmost restraint and to 
refrain from any act which may lead to further escalation and widening of the conflict 



The Resolution also declared for the first time during the war that there had been a 
breach of the peace and that the Council was acting under the UN Charter, Articles 
39-40. 376 Iraq accepted Resolution 598 on July 23. On September 3 the 12-mem- 
ber European Community supported Resolution 598, "strongly condemning] re- 
cent attacks on merchant ships in the Gulf and reiterating] . . . firm support for the 

fundamental principle of freedom of navigation, which is of the utmost impor- 

378 
tance to the whole international community." 

On August 3 Iran had announced it planned naval maneuvers in its territorial 
waters in the Gulf and in the Gulf of Oman, warning all vessels, commercial or mil- 
itary, against approaching these waters. Iraq protested, noting that Iranian territo- 
rial waters included part of the Strait of Hormuz and waters between the Tunb and 

379 
Forur islands, claiming that under the 1982 LOS Convention, Article 38(1), 

380 

and the 1958 Territorial Sea Convention, Article 16(4), that Iran could not sus- 
pend passage through international straits, and that the International Maritime 
Organization (IMO) had declared shipping lanes passing close to Tunb and 
Forur. 381 

By the end of July US Navy escorts had been receiving informal cooperation 
from France and Britain and support and assistance from Saudi Arabia and other 

382 

GCC States. In July and August France ordered its aircraft carrier Clemenceau to 

the Gulf; France's prime minister declaring, "We have no aggressive intentions, 

383 384 

but we want to be respected and we will be respected." In August, Britain and 



The War, 1980-88 65 



France agreed to send minesweepers to the Gulf, and by September Italian, Bel- 
gian and Netherlands ships, the latter to operate jointly with Armilla Patrol pro- 
tection, were on the way. Saudi Arabia committed its four minesweepers to 

387 

clearance operations. On August 20, the Western European Union (WEU) de- 
clared Europe's vital interests required that freedom of navigation in the Gulf be 

QOO 

assured at all times. The capacity of WEU members to consult on this policy 

389 

"was all the more important[,] given a previous record of disunity." By now Iran 

had lost the international diplomatic leverage it had been cultivating for the previ- 

390 
ous three years. 

On October 8, Iranian speedboats fired on US helicopters; in accordance with 

US self-defense principles and ROE, the helicopters returned fire, sinking one 

boat and damaging others. Iran claimed the US helicopters fired first and vowed a 

391 

"crushing response." Some argued it was a "carefully calculated reprisal." US 
Navy personnel rescued six Iranian Revolutionary Guards boat crew members; two 
died aboard U.S.S. Raleigh. Survivors and remains were returned to Iran through 
Omani Red Crescent auspices. It is not known whether Iraq consented or objected 

392 

to repatriation. Later that month the United States, claiming self-defense, 
responded to an Iranian Revolutionary Guards Silkworm attack in Kuwaiti 
territorial waters on a US flag tanker, Sea Isle City, by destroying the Iranian 
Rostum offshore oil platform in the southern Gulf. Sea Isle City's master, a US 
national, was blinded in the attack. When the attack on Sea Isle City occurred, it 
was not under US Navy convoy; convoying ceased when vessels reached Kuwaiti 
territorial waters. Rostum was a Guards gunboat communications base and was 
not directly involved in the Silkworm strike. Those manning it were given time to 
evacuate before the attack began. Rostum apparently was not engaged in oil 

393 

production; therefore, the attack did not create a threat to the environment. 
The US strike was stated to be in specific response to the Sea Isle City attack; 
connection with an Iranian attack on the Sungari, which had occurred a day before 
Sea Isle City was hit, was avoided. Although Sungari was beneficially US owned, it 

394 

was Liberian flagged. ' Iran claimed the platform attacks were aggression and 

39S 

that self-defense could only be asserted in response to armed attack. (US import 

396 

controls on Iranian goods were said to be a reason for the attacks. There is some 
evidence Iran was aiming at oil tankers in the Kuwaiti port of Al-Hamadi, where 
Kuwaiti and Saudi oil donated to Iraq was being lifted to pay for ammunition 

397 

shipped to Iraq through the Port of Aqaba.) US response for the Sea Isle City 
Silkworm attack, and not for the Sungari attack, established some precedent that at 
this time the United States did not consider open registry ships, even if owned by 
US interests, to have enough connection to merit protection. This view changed as 
the war deepened, at least where US nationals were in the crew. There were no 
more confrontations with the United States for the next six months as a result of 
the US response on Rostum. Iranian Guards speedboats continued to harass 



66 The Tanker War 



unprotected shipping; three days after the US response to the Sea Isle City 
attack, Iran hit the Kuwaiti deep-water Sea Island Terminal. Iran made it clear 
that this action was intended as retaliation for the Rostum attack. 

This exchange of blows was notable because of Iran's care not to attack the US 
directly but to target its regional allies — [T]he most Iran did was to probe the extent 
and scope of the US commitment ... to find the weak links, the grey areas. Yet it did 
over-reach itself when it was caught red-handed in minelaying, thus unwittingly 
providing ammunition to those who argued that it was Iran that constituted a menace 
to the freedom of navigation. . . . [I]t found the impulse to defy the United States, 
whatever the consequences, irresistible, providing the [Iranian Islamic] revolution 
with the high drama that it so cherished, even at the risk of diverting from the 
principal] issue — the land war. . . . Iranian leaders were confident that the US 
presence could not last forever, that sooner or later the expense of the enterprise and 
the distraction of other issues . . . would see a withdrawal of the US fleet.403 

Future events would prove this assessment to be incorrect. By the end of 1987 
Western naval presence in the Gulf appeared more durable than might earlier have 
been expected. However, for the time being Iran continued to see its strategy pay- 
ing off, weakening US credibility with its Gulf allies, exasperating its military, and 
drawing the United States from impartiality to messy partisanship. 

In November, an Arab League Extraordinary Summit "expressed anxiety at the 
continuation of the war and voiced . . . indignation at [Iran's] intransigence, provo- 
cations and threats to the Arab Gulf States." The Summit "condemned Iran's . . . 
procrastination in accepting . . .Resolution 598 . . . [, and] called on Iran to accept 
the Resolution and implement it in toto. . ." The Summit asked the international 
community to "shoulder its responsibilities, exert effective international efforts 
and adopt measures adequate to make [Iran] respond to the calls for peace." Iraq's 
accepting Resolution 598 and positive response to peace initiatives was appreci- 
ated. It confirmed support for Iran's defending its territory and "legitimate rights" 
but declared solidarity with Kuwait and Saudi Arabia as to Iranian threats, aggres- 
sion and violations of holy places. A few days later Iranian speedboats shot up 
three tankers carrying Saudi oil, but Syrian pressure succeeded in getting Iran to 
refrain from hitting targets in Kuwait. Iran's president visited the United Na- 
tions to discuss a peace plan. However, UN diplomatic activity was to stop by early 
1988. Nevertheless, the Secretary-General continued to press Iran to accept the 
UN proposal. It was only in October 1987 that Iran and Iraq formally broke off 
diplomatic relations, a further sign of polarization. 

During that month a US warship fired on a UAE fishing vessel, resulting in a 
death and three injured crew; the United States said it fired in self-defense but ex- 
pressed regret over the incident, which had occurred between the UAE coast and 
Abu Musa, from which Iranian speedboats carried out Gulf shipping raids. The 
United States was particularly concerned about small boats; Iran had been 



The War, 1980-88 67 



conducting naval maneuvers in its exclusion zone and territorial waters, including 
simulated speedboat attacks on suicide runs. In December a US warship helped 
rescue a Cypriot crew after an Iranian gunboat attack set their tanker ablaze. 
Tanker masters began tailing convoys or simulating them during night steam- 
ing. During that month H.M.S. Scylla and York protected merchant ships from 
Iranian speedboat attacks. 

On December 11, NATO Council "Ministers underlined the importance of an 
early and full implementation of [Resolution] 598. They also recalled the impor- 
tance of freedom and security of navigation in the Gulf. They call[ed] for appropri- 
ate follow-up action ... to resolve these problems." Late in December a GCC 
conference confined itself to expressing "deep regret at 'the destructive war' . . . and 
urging the UN Security Council to implement. Resolution 598 as soon as possible." 
Part of this was due to Omani and UAE opposition, caused by the geography that 
compelled Oman and Iran to patrol Hormuz jointly, and the UAE's financial affili- 
ation with Iran. The growing risk to neutral shipping increased trade through the 
UAE, where goods would be shipped overland. Sentiment against an arms em- 
bargo directed toward Iran was the same in the GCC and the Security Council. 
Nevertheless, the December GCC Summit approved a comprehensive security 
strategy that may have amounted to a collective self-defense pact. However, 
some governments, notably China, France, the FRG and the USSR, were per- 
suaded that Iran's not rejecting Resolution 598 meant Iran might be genuinely in- 
terested in a negotiated settlement to end the war. Permanent Security Council 
members (China, France, USSR) would veto any US-sponsored resolution to im- 
pose sanctions. Iran claimed naval presences from States outside the Gulf vio- 
lated Resolution 598, Article 5. 417 

Meanwhile, the USSR and the United States continued to support Iraq, the So- 
viet Union through military supplies, the United States by $961 million in agricul- 

41 R 

tural commodity credits in 1987. The USSR and its Eastern European satellites 
continued to send negligible amounts of military equipment to Iran, but there was 

419 

no question about the USSR's priorities. 

9. 1988: End Game: Intensity of Responses; Collapse and Ceasefire. 

A January 2, 1988 US NOTMAR reflected the intensity of the situation: 

1. U.S. mariners are advised to exercise extreme caution when transiting the . . . 
Gulf, the Strait of Hormuz, and the Gulf of Oman, due to hostilities between Iran and 
Iraq. Mariners are further advised to avoid Iranian or Iraqi ports and coastal waters 
and to remain outside the areas delimited in paragraphs 2 and 3 below until further 
notice. 

2. Iran has stated: 

A. Iranian coastal waters are war zones. 

B. Transportation of cargo to Iraqi ports is prohibited. 



68 The Tanker War 



C. Guidelines for the navigational safety of merchant shipping in the . . . 
Gulf are . . . : after transiting . . . Hormuz, merchant ships sailing to non-Iranian 
ports should pass 12 miles south of Abu Musa Island; 12 miles south of Sim 
Island; south of Cable Bank Light; 12 miles south of Farsi Island; thence west 
of a line connecting the points 27-55N. 49-53E. and 29-10N. 49-12E.; 
thereafter south of the line 29-10N. as far as 48-10E. 

D Iran disclaims any responsibility for merchant ships failing to comply 

with the above instructions. 

E. Iranian naval forces patrol the Gulf of Oman up to 400 kilometers from 
the Strait of Hormuz. 

3. Iraq has stated: 

A. The area north of 29-30N. is a prohibited war zone. 

B. It will attack all vessels appearing within a zone believed to be north and 
east of a line connecting the following points: 29-30N. 48-30E., 29-25N. 
49-09E., 28-23N. 49-47E., 28-23N. 51-00E. 

C. All tankers docking at Kharg Island regardless of nationality are targets 
for the Iraqi Air Force. 

4. Several vessels have suffered damage from moored or floating mines in the . . . 
Gulf. U.S. mariners should exercise caution in navigable waters throughout the Gulf 
region and particularly in the following areas where moored mines have been 
encountered: 

A. The Mina Al Ahmadi/Mina Ash Shu'aybah Channel (28-56N. 48-53E.) 
and its approaches. 

B. The shipping channels south and west of Farsi Island. 

5. Mariners should be aware that Iranian naval forces visit, search and in some 
cases seize or divert to Iranian ports vessels of non-belligerents in the Persian 
Gulf/Gulf of Oman region. 

The United States took no position on the zones' legal validity. During 1987 the 
belligerents had attacked 178 merchantmen. 

At the end of January 1988 Iran promulgated a prize law, article 3 of which de- 
clared the following to be war prizes: 

(a) All goods, merchandise, means of transport and equipment belonging to a 
State or to States at war with . . . Iran. 

(b) Merchandise and means of transport . . . belonging to neutral States or their 
nationals, or to nationals of the belligerent State if they could effectively contribute to 
increasing the combat power of the enemy or their final destination, either directly or 
via intermediaries, is a State at war with . . . Iran. 

(c) Vessels flying the flag of a neutral State as well as vehicles belonging to a 
neutral State transporting the goods set out in this article. 

(d) Merchandise, means of transport and equipment which . . . Iran forbids from 
being transported to enemy territory."* 22 

The Law provided that property listed in Article 3(a), i.e., property of a State at war 
with Iran, would become the property of Iran; Article 3(b) and 3(c) property, i.e., of 
neutrals would be confiscated and adjudicated. Article 3(d) means of transport 



The War, 1980-88 69 



would "become the property of. . . Iran or be confiscated according to circum- 
stances. Any person contesting this must appear before the [prize] Tribunal." 

Iraqi attacks on tankers resumed February 10, 1988, after a month's lull. The 
War of the Cities began again on February 28, 1988; Iran shelled Basra after Iraq 
bombed an oil refinery near Tehran. Iraq hit Halabja, an Iraqi town captured by 
Iran, with chemical weapons in March. Later that month Saudi Arabia confirmed 
buying 1600-mile CSS-2 ballistic missiles from the PRC. On March 30 Iranian 
gunboats fired on a Kuwaiti military base on Bubiyan Island. 

In early 1988 the United States noted willingness to consider a UN Gulf naval 
force, if a collective action concept was spelled out clearly; the United States would 
not support a UN force replacing US and US-aligned forces. The United King- 
dom was unenthusiastic, but Italy and the USSR supported the idea. The So- 
viet Union wanted to replace the large Western naval presence with a UN 
flotilla 428 

During this time there were clashes involving US naval forces, several with Iran 

429 

and one with Iraq. On April 14 U.S.S. Samuel B. Roberts, a frigate likeStark, hit a 
mine in a field Iran laid in shipping lanes in international waters 70 miles east of 
Bahrain. In response, on April 18, the United States engaged Iranian warships 
and neutralized two Iranian oil platforms that had conducted or supported attacks 
on neutral shipping. Occupants of the two oil platforms (Sassam and Sirri, both lo- 
cated in the lower Gulf) were first given the opportunity to evacuate. Sirri had been 
responsible for about eight percent of Iran's oil exports. Iran saw the US response 
(which represented an escalation in US military action) as siding with Iraq, per- 
haps because Iraq reconquered al-Faw near Basra the day of the Sassan/Sirri attack. 
Several Iranian naval units, including two frigates, were destroyed or damaged 
during that operation. This engagement, dubbed Operation Praying Mantis, 
was the largest combined air and surface engagement in war-at-sea for the US Navy 
since World War II. Iran protested the platform attacks as aggression. The 
United States rejected the protest. A few days later Iranian speedboats attacked 
an oil rig in the UAE Mubarak oil field, operated by US interests, 30 miles north 
of Sharjah, and a tanker and freighter that were nearby. While thus engaged the 
boats were hit by US air strikes. Shipping and oil commerce in the southern 
Gulf virtually stopped for two days. UK- and French-accompanied convoys were 
temporarily halted. Some commentators trace the turning point in the war to 
April 17-18, when Iran lost the Fao peninsula to Iraq and their warships to the US 
Navy. 436 

By now five NATO nations besides the United States — Belgium, Britain, 
France, Italy, the Netherlands — had sent over 25 warships to the Gulf for escort 
and mine suppression duty. The FRG, constitutionally restricted from sending 
forces there, augmented its Mediterranean Sea NATO presence with four ships. 
Norway sent a minesweep to NATO Channel Command; Luxembourg, which has 



70 The Tanker War 



no navy, backed the Belgian-Dutch commitment financially. Australia and Japan, 
the latter also constitutionally limited, installed precise navigation transmitters in 
the Gulf and dispatched diver and mine disposal teams. The Netherlands Navy 
collaborated very closely with the Royal Navy. Belgium, Italy and the Netherlands 
probably would not have deployed forces except for WEU's political cover. ' 
French forces, reflecting France's longterm withdrawal from the NATO com- 

438 

mand structure, operated independently but cooperated with other navies, 

439 
agreeing to consult within the WEU framework. " Italy followed the same pol- 
icy. WEU naval experts convened regular meetings in London to discuss the 
evolving threat. Even the USSR and US navies occasionally cooperated in find- 
ing and destroying Iranian mines. At about the same time Hans Dietrich 
Genscher, the FRG foreign minister, was emerging as representing Iranian inter- 

A A T 

ests in efforts to end hostilities through mediation. However, "the unprece- 
dented international concern and focus on the war in the United Nations and in 
the Gulfs waters, with the extraordinary and unprecedented participation of 
many European NATO States in an 'out of area' operation, ushered in a new phase" 
of the war. The multinational maritime naval operation was not, however, un- 

A A C 

der the command of any State or States. 

After Iranian gunboats attacked a Saudi-owned tanker off Dubai on April 24, 
on April 29 the United States announced it would begin assisting "friendly, inno- 
cent neutral vessels flying a nonbelligerent flag outside declared war exclusion 
zones that are not carrying contraband or resisting legitimate visit and search by a 

. . . Gulf belligerent Following a request from the vessel under attack, assistance 

[would] be rendered by a US warship or aircraft if this unit [was] in the vicinity and 
its mission permitted] rendering such assistance." This incremental US esca- 
lation, partly in response to requests from Saudi Arabia, the UAE and US oil ship- 
pers navigating under foreign nags, was a more generous protection promise 
than Britain had announced in February, when UK policy shifted to permit pro- 
tecting foreign flag ships having a clear majority UK interest in ownership. 
This did not include Armilla Patrol protection for ships on which British seamen 
were employed. Although officially more conservative than the US policy, it 
was a distinction without a difference, since UK warships gave humanitarian as- 
sistance to neutral vessels after an attack and were prepared to interpose between 
an attacker and a target ship. The interposing warships were prepared to assert 
self-defense if attacked while helping a foreign vessel. France pursued a similar, 
perhaps more forward-leaning interposition policy. French warships were "avail- 
able to assist [merchantmen] according to circumstances." What French war- 
ships would do in a confrontation is less than clear; French ROE stated options, 
but these have not been published. Italian escort was limited to Italian-flag mer- 
chantmen, although Italian ROE promised response if a belligerent committed a 
hostile act; the ROE did not contemplate "repressive acts" directed toward bases of 






The War, 1980-88 71 



operation. NATO countries agreed to provide mutual support and cooperation 
in keeping international waterways free of mines, although France operated 
separate mine clearance and Italy had separate bilateral arrangements for the 
work. 

In May 1988 Iraqi air strikes hit Iran's Larak oil terminal in the Strait of 
Hormuz. Seawise Giant, Liberian registered and the world's largest supertanker, 
was among five ships damaged. Iran began a 1 0-day combined forces exercise in 

the Persian Gulf and the Gulf of Oman, to show that its maritime power was not as 

458 
crippled as the United States had said. 

The July 3 Airbus tragedy arose in the context of Iraqi speedboat attacks and 

concern over possible air attacks on US warships, or its supply barges anchored in 

459 

Kuwaiti waters, perhaps to coincide with the Fourth of July. In April 1 988, dur- 
ing Operation Praying Mantis, Iranian military aircraft had taken off from the 
nearby Bandar Abbas airport, also used by civil aviation. These aircraft appeared 
close to commencing attacks on US aircraft but did not. Other Iranian aircraft 
had exhibited "targeting behavior" while observing Praying Mantis events from 
afar, apparently to provide radar information, i.e., to possibly vector closer 
planes to targets. On July 2-3 Iranian speedboats positioned themselves at the 
western approach to the Strait of Hormuz to challenge merchant ships, a tactic that 
had been a prelude to attack. During the evening of July 2, U.S.S. Elmer Mont- 
gomery had responded to a distress call from a Danish tanker under Iranian speed- 
boat attacks. That same day two Iranian F-14s came within seven miles of 
U.S.S. Halsey. Other F-14s were known to be at Bandar Abbas. After Mont- 
gomery heard challenges over the radio and many speedboats were seen approach- 
ing a Pakistani merchantman on July 3, U.S.S. Vincennes was sent to the area to 
investigate the Montgomery report. Vincennes' helicopter was fired on by Iranian 
small boats, which "were deemed to have hostile intent." Vincennes opened fire on 
the boats. Two minutes later, Iran Air Flight 655, a civil airliner, took off from 
Bandar Abbas for Dubai, across the Gulf, on a flight path through the area of the 
on-going naval battle near Hormuz. Seven minutes later and after repeated 
radio warnings, and owing to Vincennes' preoccupation with the ongoing surface 
action and misinterpretation of electronic information and commercial air sched- 
ules on board, Vincennes fired surface to air missiles that destroyed Flight 655. 
When Vincennes' commanding officer gave the order to fire, in the middle of the 
surface melee, he "believed that the Vincennes and the Montgomery were the subject 
of a coordinated sea and air attack involving [Iranian] Revolutionary Guard speed- 
boats and an F-14 aircraft." The United States claimed a right of self-defense for 

Af.9 

the mistaken attack. 

A week after the Airbus tragedy, US ship-based helicopters attacked Iranian 
gunboats that had set afire a Panama-registered, Japanese-owned tanker with US 
nationals in the crew, thus implementing the new US policy of defending other 



72 The Tanker War 



countries' merchantmen upon their request and consistent with other US opera- 
tional commitments. 

By the end of the war the US Navy had conducted over 100 convoys in the 
Gulf. Other navies were also engaged in numerous escort operations. 

On the diplomatic front, Saudi Arabia broke relations with Iran April 27, 1988, 
a few days after US actions against Iranian warships and speedboats. Perhaps 
more importantly, during that year a pipeline from Al-Zubair in Iraq to Yanbu in 
Saudi Arabia was completed, allowing Iraqi oil to flow to Yanbu, where it could be 
shipped to South Africa for hard currency or arms. Iraq may have also com- 
pleted a smaller pipeline to Turkey that year, which with the Yanbu line would 
have boosted its oil exports to 3.2 million barrels a day, about the prewar peak 
level. This may have been a counterpoint to Iran's economic cooperation accord 
of the previous summer with the Soviet Union, by which the USSR agreed to build 
a pipeline to carry Iranian oil to the Black Sea. A shipping route in the Caspian Sea 
was settled. A second connection between airline and railway systems was also 
planned. However, Iran's economy was in a shambles, with only $1 billion in 
foreign exchange reserves left, after an upswing the year before. Part of this erosion 
was due to Iraqi bombing in the first quarter of 1988, which reduced oil production 
considerably. 

In June 1988 a second Arab League Extraordinary Summit reaffirmed its 1987 

ind on the war. On Ju 
joint political declaration: 



stand on the war. On June 15 the European Community and the GCC issued a 



. . . They explicitly emphasized that freedom of navigation and unimpeded flow of 
trade is a cardinal principle in international relations and international law. In this 
context, they call upon the international community to safeguard the right of free 
navigation in international waters and sea lanes for shipping en route to and from all 
ports and installations of the [Gulf] littoral States . . . not parties to the hostilities. 47 ^ 

The June 20 Toronto Economic Summit supported Resolution 598, condemned 
use of chemical weapons, deplored proliferation of ballistic missiles in the region, 
and "renew[ed the Group of Seven] commitment to uphold . . . freedom of naviga- 
tion in the Gulf." By mid-June Britain and France had restored diplomatic rela- 
tions with Iran. (The United States had severed relations with Iran during the 
hostage crisis, and these were not restored.) Saudi Arabia announced a $12-30 
billion arms deal, including six to eight minesweepers, with Britain and bought 

481 

1600-mile ballistic missiles from China. 

482 

Iran announced acceptance of Resolution 598 on July 17; on August 8 the 

483 

UN Secretary-General announced a ceasefire effective August 20. The next day 
the Council approved the Secretary-General's report on the war and decided to es- 
tablish UN Iran-Iraq Military Observer Group (UNIIMOG) to help the peace 

485 

process. Withdrawal from occupied territories began, but the 1990-91 war 



The War, 1980-88 73 



ended UNIIMOG's mandate. UNIIMOG seemed to have worked reasonably 

487 

well during its short commission. Negotiations between Iran and Iraq with re- 
spect to their disputed border began simultaneously with the ceasefire and contin- 

488 

ued thereafter. These discussions broke down over Iraq's insistence that it 
should control the entire Shatt al-Arab waterway; neither side was prepared to 
compromise on this issue, and both refused a political solution. However, two 
weeks after Iraq invaded Kuwait in 1990, Iraq conceded most Iranian demands, 
agreeing to revert to the 1975 treaty providing for joint sovereignty over the Shatt 
and to return prisoners of war (POWs). These concessions had been Iranian peace 

489 

conditions stated soon after the 1980 Iraqi invasion. No major exchanges of 
POWs, mostly captured ground forces but undoubtedly including naval person- 
nel, came until 10 years later. 

Iran announced on August 20 it would continue inspecting vessels during the 

491 492 

ceasefire; this was a largely theoretical gesture, although Iraq protested it. 
The commitment of the European naval force was extended to clear 2000 mines 
from the northern Gulf and the Shatt al-Arab after the ceasefire. Operation 
Cleansweep has been hailed as the "culmination of a major pioneering landmark in 
European naval co-operation." There had been no coordination of merchant ship 

493 

protection among WEU navies, however. The United States announced the end 
of escorted convoy operations in the Gulf in October 1988, although US forces 
would be positioned to act if US-flagged vessels were directly threatened. Later 

495 

this was replaced by a monitoring system. In January 1989 "deflagging" proce- 
dures for reverting the tankers to the Kuwaiti ensign began. In March 1 990 the 

497 

last US Navy minesweepers came home. Increased US naval presence in the 

498 

Gulf, resulting in over 100 convoys, was considered an "unqualified success;" 

499 

other participating States gave their operations high marks. Iraq, deeply in debt 
to several Western States, Japan and the USSR, declared victory, and Iran felt 
skeptical relief, at the end of hostilities. 

Part C. Conclusions 

"The Iran-Iraq conflict was a major war, not a small war. For the only time since 
World War II, deliberate and sustained operations were carried out against mer- 
chant ships" by the belligerents. It was also one of the longest wars of the cen- 

502 

tury, with a million casualties, mostly in the land campaigns. Perhaps virtually 

503 

every Iraqi family lost a son, brother or father, or 1 50,000 killed among 400,000 
casualties. An entire generation lost a decade of its life, and the country had only 
begun to face the social costs it would have to pay. For Iran, the war brought dis- 
illusionment and moderation in its Islamic fundamentalism and perhaps 300,000 
dead. Direct and indirect economic costs of the war to Iran and Iraq came to 
about $1 .2 trillion, plus another $1.1 trillion to rebuild their economies. "The total 
cost of the war exceed[ed] the oil revenue of the two States throughout the 



74 The Tanker War 



twentieth century."" Iraq's booming prewar economy and rapid economic devel- 
opment may have been set back two decades, and a large non-Arab debt remained 

507 

to slow economic recovery. Iraq's foreign debt stood at $65 billion in 1985, with 

cr\o 

perhaps half owed GCC States; it had ballooned to $100 billion at the war's end. 
Iraq's only positive gain may have been in its armed forces; its ground forces were 
five times larger with 955,000 effectives at the war's end; by 1988 Iraq had doubled 

509 

its available tanks and aircraft. Nearly all of the increase in military hardware 
was due to Soviet aid. Counting reserves, Iraq had nearly all the working popu- 
lation of the country under arms. Iran also increased its total active military 
manpower, mostly in ground forces, but its mechanized units, combat aircraft, 
tanks, artillery and naval power were reduced considerably by the last years of the 
war. 512 

It was a war that resolved nothing, changed little, toppled neither regime, and 
settled none of the underlying issues. 

. . . [Tjhis [was] a war worthy of a place of honour in Barbara Tuchman's March of 
Folly. It will be cited as a classic example of the power of an individual's blind 
dogmatism in totalitarian states to lead a people towards disaster and thereby to 
change history. This occurrence could well repeat itselfj,] especially in the prevailing 
instability presided over by autocratic regimes in the Middle East. 514 

The 1990-91 Gulf War, beginning with Iraq's invasion of Kuwait, began two years 
later and proves the point; there may be repetitions in the future. The key lesson 
to be learned from the war, according to Chaim Herzog, then President of Israel, 
was that no State can survive militarily in isolation. "The nations of the world are 
interdependent, and a major element in any middle and small nation's military ca- 
pability must ... be based on its international economic and political standing. 
The . . . War proved that this must be a major and vital consideration in the defence 
of any country." 

The war at sea, while relatively less costly in terms of life and less important 
than the land, air and missile campaigns in terms of people involved, was a signifi- 
cant part of the conflict. 

1. The Tanker War. 

The Tanker War was the most important aspect of naval warfare during the 

517 

conflict. It was the largest loss of merchant ships and mariners' lives since the 
Second World War: 

Throughout the eight year . . . War, Iran and Iraq . . . attacked more than 400 
commercial vessels, almost all of which were neutral State flag ships. Over 200 
merchant seamen . . . lost their lives. . . . [T]he attacks . . . resulted in excess of 40 
million dead weight tons of damaged shipping. Thirty-one of the attacked merchants 
were sunk, and another 50 [were] declared total losses. For 1987 alone, the strikes 



The War, 1980-88 75 



against commercial shipping numbered 178, with a resulting death toll of 108. In 
relative terms, by the end of 1987, write-off losses in the Gulf War stood at nearly half 

the tonnage of merchant shipping sent to the bottom in World War II [S]hips . . . 

of more than 30 different countries, including . . . permanent members of the . . . 
Security Council, [were] subjected to attacks. 

518 

Only about one percent of Gulf voyages involved attacks, however. Neverthe- 
less, in terms of percentages of losses due to maritime casualties worldwide, the sta- 
tistics were staggering. During 1982, the first year of the Tanker War, 47 percent of 
all Liberian-flag tonnage losses due to maritime casualty worldwide occurred in 
the Gulf. In 1986 the figure was 99 percent; in 1987, more than 90 percent, and the 
final percentages may have gone higher due to marine insurance underwriters' late 
declaration of constructive total losses. Flags of convenience were flown by most 
Gulf tankers, a third being owned by US nationals, with another substantial por- 
tion chartered by US nationals. The financial loss to US interests was therefore 
substantial. Insured losses declared by underwriters were heavy, reaching $30 mil- 
lion in one month, with resulting tremendous increases in war risk premiums. The 
total cost of conducting the war, and the direct and indirect damage caused by it, 
was nearly $1.2 trillion. If there were 

any good things that could be said of this conflict, they [were] that the Gulf War 
[became] the principal factor in reducing the overtonnage of the world oil tanker fleet 
and in aiding a recovery of the tanker market, and . . . tremendous advances in marine 
firefighting equipment and techniques [were] directly attributable to recent 
experience in the Gulf. 

To a US government expert, "this [was] too thin a silver lining to justify the 

519 

cloud." Iran attacked ships of more than 32 national flags, while Iraq mostly 
concentrated on vessels flagged or chartered by Iran. Iraq concentrated on attack- 
ing ships within Iran's war zone, while Iran mostly attacked vessels in the lower 
Gulf, outside its or Iraq's zones. Iraq tended to shoot first and identify later, while 
Iran conducted careful vessel reconnaissance and specific vessel identification. 
Iraq used aircraft for its strikes, while Iran employed conventional aircraft, heli- 
copters, surface combatants and small boats, the latter manned by Revolutionary 

520 

Guard forces. Iraq never caused a major interruption in Iran's exports to finance 
its war. 

Several warships — US frigates Samuel B. Roberts and Stark, and major units of 
the belligerents' navies as well as smaller craft like Iran Ajr — were severely dam- 
aged or sunk. Some losses resulted from opposing belligerents' attacks, some oc- 
curred through mistake, and some through self-defense responses by States not 
party to the conflict. There were deaths and injuries among crews. Belligerents and 
neutrals lost air crews through combat losses or accidents. There were losses of 
personnel at offshore terminals and other oil facilities. These facilities, including 



76 The Tanker War 



some in territories of neutral States, were also damaged. Attacks on oil platforms 
resulted in deaths, injuries, and material destruction. The Vincennes tragedy 

522 

caused 290 deaths. These losses do not include those incurred during the land 

523 
campaigns. 

One interesting result of the war was reduced use of the Strait of Hormuz as an 
oil lifeline to the West. While tankers lifted nearly 20 million barrels a day through 
the Strait in 1978, this had been reduced to 6.4 billion in 1985. Oil discoveries out- 
side the Gulf, pipelines from Iraq through Saudi Arabia and Turkey, and the Sau- 
dis' construction of an east-west pipeline with capacity of 3.2-5 million barrels a 
day may be "insurance — in case the Strait ... is closed." These developments may 
inhibit skyrocketing oil prices if there are more political-military developments in 
the region. Yet another factor is increased production from other oil fields, e.g., 
the North Sea. 

2. The Marine Environment. 

The environment was also a loser, a major casualty to the Gulf being the 1983 

525 
Nowruz attack. Undoubtedly attacks on other terminals and offshore oil facili- 

ties caused spills. And undoubtedly attacks on loaded tankers and other vessels, 

ships in ballast and warships, resulted in loss of cargoes, primarily petroleum, and 

527 528 

bunkers. Aircraft losses likely spread sheens on the Gulf. Apart from the 
Nowruz spill, there is no indication that States considered the impact of military 

529 

activity on the environment or the developing law protecting it. Completion of 

530 

overland oil pipelines may reduce risk of pollution at sea in the Gulf, but these 
pipelines are vulnerable to attack by any number of methods (particularly if laid 
close to the shore) during war or accidents at any time. Pipeline construction has 
only shifted the environmental risk to the land. 

3. The Role of the United States and the Soviet Union. 
In terms of US policy, it has been said that 

By playing a leading role in the Gulf as well as in the United Nations, the United 
States unquestionably helped bring Iran to the negotiating table ... U.S. policy 
helped reestablish U.S. credibility among the Gulf Arab States by demonstrating that 
the United States could sustain a low-key, politically sensitive, and consistent 

military policy U.S. military planners were quite pleased with the . . . cooperation 

they enjoyed from Gulf States normally reluctant to be so forthcoming — U.S. policy 
"kept the Soviets out of the Gulf in any significant operational sense, while U.S. 
policymakers nonetheless worked successfully with the Soviets in the United 
Nations in forging Resolution 598. All these produced . . . satisfaction among U.S. 
diplomats involved in the year's [1988's] events. 

. . . [T]he United States shared credit for bringing the cease-fire into effect with a 
wide range of factors. Iraq's extended bombing campaign, of which the tanker war 
was but a minor part, slowly ground Iran's economy down to crisis levels by the end of 



The War, 1980-88 77 



1987, and Iran's efforts to deal with its economy only exacerbated deep fissures 
among competing political factions in Tehran. Economic deprivation combined 
with battlefield stalemate to produce . . . war weariness across Iran — The "war of the 
cities" provoked confusion and fear out of all proportion to the relatively meager 
physical damage In some sense, Iraq can be said to have won its war with Iran. 

Luck also played a role. Other factors that might be mentioned, at least in the 
context of the Tanker War, included cooperation of the Gulf States and US NATO 
allies and other States affected by the war's dislocations and attacks on their ship- 
ping. The overwhelming supply of arms and other goods to Iraq also was a major 
factor. However, "[i]t should now be clear that US involvement in the Gulf dur- 
ing the . . . War, particularly during the . . . 'tanker war' . . . was part of a long-stand- 

533 

ing continuum of American foreign policy." 

The USSR tried to achieve several goals: preserving its influence in Iraq, gain- 
ing influence in the GCC and Iran, and reducing US influence in the region, e.g., by 
chartering tankers to Kuwait. The war bolstered Soviet standing in the region. At 
war's end Iraq could not afford to alienate the USSR or end its dependence on So- 
viet arms supplies. Iran would have to improve its relations with the Soviet Union 
to encourage the USSR to moderate its support of Iraq. While the Gulf States were 
much less dependent on the Soviet Union, they were not anxious to see the USSR 
leave the Gulf after the war; Soviet presence was seen as useful to keep the United 
States concerned about the region. Soviet post-war gains were therefore not signif- 
icant. With the war over, there were fewer opportunities and greater obstacles for 
extending Soviet political and military influence in the Gulf. The USSR's dis- 
integration three years later of course meant loss of whatever gains it had made 

535 
during the war. Iraq lost an arms supplier, Iran lost a whipping boy, and the 

other Gulf States lost a makeweight. The Soviet Union's demise meant a triumph 

of US policy, and just in time for the 1990-91 Gulf War. 536 

4. The Role of International Organizations. 

The United Nations, and particularly the Security Council, emerged from Cold 
War gridlock to a more active role in peacemaking. Its resolutions affirming free- 

537 

dom of navigation are particularly important for this analysis. The Arab 
League, at first gridlocked because of divisions among its members, some of whom 
(e.g., Syria) supported Iran and others Iraq (e.g., Kuwait, Saudi Arabia), came to- 

538 

gether at the end of the war. States in other established international organiza- 
tions, e.g., individual NATO members, cooperated together more or less under the 
WEU with Persian Gulf States to support freedom of navigation. WEU's revital- 

539 

ization has been traced to the Tanker War shipping threat. These European 
States, while following a Western political strategy, were able to distinguish them- 
selves from US policy. They made separate, if not radically different, definitions of 
Western interests in the Gulf. Deployment of European naval power to the Gulf 



78 The Tanker War 



improved the status of European States with many Gulf Cooperation Council 
members, particularly Kuwait and Saudi Arabia. 

The European Community, evolving into the European Union during the war 
years, and the Economic Summits lent diplomatic pressure to end the conflict. 
Nevertheless, it appeared likely that although the EU will harmonize policies in 
Europe, European States will muddle through with individual policies in the Gulf 
in the future. 

However, the most impressive development during 1980-88 was the organiza- 
tion of the Gulf Cooperation Council of other Gulf States in 1981, which by war's 
end could "have good reasons for being pleased and confident They . . . success- 
fully weathered the Iranian revolution, eight years of Iran-Iraq fighting, and a 
whole range of direct or covert Iranian efforts to undermine them. They [could] 
reasonably argue that the future [could] not be worse than the recent past." It 
has been correctly predicted that 

. . . [T]he GCC states will strive to maintain their unity to limit the chances of 
turmoil spreading from one state to the rest. Together, they will try to hew a middle 
path between Iran and Iraq ... to achieve a balance of power in the Gulf and limit the 
opportunities for super-power intervention .... Because the GCC states can never 
attain an even mildly formidable . . . defense posture, their attention is properly 
focused on diplomacy. Nevertheless, practical steps toward closer security 
cooperation . . . can serve to deny the attractions of outside meddling in the affairs of 
the weaker members of the community, and put the larger powers on notice that the 
GCC states are determined to act together to preserve their political integrity.- 544 

For the United States, a problem could be military equipment purchases from 
other countries, thereby lessening dependence on America while increasing de- 
pendence on other States. 

5. The Ensuing Chapters. 

From any perspective the Tanker War was costly in terms of people, property, 
pollution of the environment, and perhaps international law. The Chapters that 
follow analyze the war in the context of the UN Charter, and in particular the in- 
herent right of individual and collective self-defense in Article 5 1 ; the law of the 
sea in the context of the Persian Gulf; the law of naval warfare, apart from Char- 
ter considerations, at stake in the Tanker War; and the law of the sea, the law of 

549 

the maritime environment, and the law of naval warfare. 

NOTES 

1. I delivered parts of this Chapter as a paper, "Targeting Enemy Merchant Shipping and Neutral Merchant 
Vessels That Have Acquired Enemy Character: State Practice Following World War II," at the Naval War College 
Symposium on the Law of Naval Warfare, February 1-3, 1990, Newport, R.I., which was published, revised, as State 



The War, 1980-88 79 



Practice in Grunawalt. Other portions were part of a research report, U.S. National Security Interests in the Persian Gulf: 
The Maritime Strategy Reconsidered, March 8, 1989, to fulfill National Defense University diploma requirements. 

2. Peter Hayes, Chronology 1988, 68 Foreign Aff. 220, 236 (1989); see also nn. 484-92 and accompanying text. 
This Chapter's history of events, 1980-88, has been compiled in part from Hiro, Navis & Hooten and Foreign 
Affairs' America and the World issue; usually there is no further citation of these sources unless there is particular 
relevance. See Elaine P. Adam, Chronology 1981,60 id. 719, 734-35, 739-40 (1982); Janis Kreslins, Chronology 1982, 61 
id. 714, 725-26 (1983); Chronology 1983, 62 id. Ill, 788-92 (1984); Chronology 1984, 63 id. 672, 682-86 (1985); Kay King, 
Chronology 1985, 64 id. 645, 658-61 (1986); Horace B. Robertson, Chronology 1986, 65 id. 653, 662-76 (1987); Hayes, 
Chronology 1987, 66 id. 638, 655-60 (1988); Hayes 232-38. Another summary is in 26 ILM 1434 (1987). Other citations, 
nn. 3-549, refer to accounts, often from media sources, of particular events. 

3. S.C. Res. 598, in Wellens 454. 

4. John H. Cushman, Jr., NavytoEnd Convoys in Gulf But It Will Still Protect Ships, N.Y. Times, Sept. 17, 1988, at 2. 

5. Kuwait to "Deflag" Ships, Winston-Salem J., Jan. 19, 1989, at 9; for analysis ofthe reflagging, see Parts I V.C.3, 
IV.C.6, IV.D.5, V.D.2, V.D.4, V.J.4. 

6. Last 3 "Sweeps" Head Home, US Navy Internal Relations Activity, Information for Your Use 4 (May 1990); see 
also Tamara Moser Melia, "Damn the Torpedoes." A Short History of U.S. Naval Mine Countermeasures, 
1777-1991, at 127 (1991). 

7. R.M. Burrell & Alvin J. Cottrell, Iran, the Arabian Peninsula, and the Indian Ocean 2 (1972); Hiro 2; 
Andrea Gioia, Commentary, in de Guttry & Ronzitti 57. 

8. See generally, e.g., Norman Friedman, Desert Victory: The War for Kuwait (1991); US Department of 
Defense, Final Report to Congress: Conduct of the Persian Gulf War (Apr. 1992) (DOD Report). Id., App. O; Iraqi 
Symposium, 15 S. III. L.J. 411 (1991); Oscar Schachter, United Nations Law in the Gulf Conflict, 85 AJIL 452 (1991); 
Symposium on International Law and the Rules of War, 1991 Duke J. Comp. & Int'l L.l; which analyze international law 
aspects of that war. 

9. Accords on USSR withdrawal and other aspects of resolving that war include Agreement on Principles of 
Mutual Relations, in Particular on Non-interference & Non-intervention, Apr. 14, 1988, Afghan. -Pak., 27 ILM 581 
(1988); Declaration on International Guarantees, Apr. 14, 1988, USSR-US, id. 584; Agreement on Voluntary Return 
of Refugees, Apr. 14, 1988, Afghan-Pak.,ii. 585; Agreement on Interrelationships for Settlement of Situation Relating 
to Afghanistan, with Annex, Apr. 14, 1988, Afghan.-US, id. 587. See Hiro 71, 73, 122, 162, 263 on relationships 
between the Iran-Iraq war and the Soviet Afghanistan intervention. 

10. Tousi, n. 1.30, 50. 

11. Id. 

12. See generally United States Diplomatic & Consular Staff in Iran (US v. Iran), 1979 ICJ 23, 1980 id. 3 (Hostage 
Case); Cable 206; Hiro 1, 36-37, 71, 215-21, 223, 227, 231, 240, 263; nn. 282, 317, 326, 339 and accompanying text. 

13. Islam's Shiite branch, State religion of Persia (later Iran) since 1506, has been a divisive force between Iran 
and Iraq, once part of the Ottoman Empire, for centuries. For analysis of the interaction of the Shiite and Sunni sects 
before and during the war, and Iran's role as a predominantly Gulf Shiite State, and other Gulf States, whose 
population are predominantly Sunni,see generally Chubin&c Tripp ch. 9; Philip Mansel, Constantinople: City ofthe 
World's Desire, 1453-1924, at 39, 189-90(1996); Shireen Hunter, The Iran-Iraq War and Iran's Defense Policy, in Naff, 
Gulf Security ch. 7 (effect on the military); Christopher C. Joyner, Introduction: The Geography and Geopolitics ofthe 
Persian Gulf, in Joyner 1, 12-13; David Menashri, Iran: Doctrine and Reality, in Karsh 42-57; Hossein S. Seifzadeh, 
Revolution, Ideology, and the War, in Rajaee, Iranian Perspectives 90-97; Robin Wright, The War and the Spread of 
Islamic Fundamentalism, in Karsh 110-20; Neguin Yavari, National, Ethnic and Sectarian Issues in the War, in Rajaee, 
Iranian Perspectives 75-89. As id.'s title suggests, most of its chapters present an Iranian viewpoint that may seem at 
variance with other views. 

14. See generally Hiro passim. 

15. See generally Geneva Gas Protocol; US Renunciation of Certain Uses in War of Chemical Herbicides & Riot 
Control Agents, Apr. 8, 1975, Exec. Order No. 11,850, 40 Fed. Reg.16,187 (1975). See also Fourth Convention, arts. 
3(1), 13, amplified by Protocol I, arts. 1,48-52, 57, 59, and Protocol II, arts. 1, 4(2)(d), 13. The President ofthe United 
States declined to recommend Protocol I for Senate advice and consent. Message from President ofthe United States 
Transmitting the Protocol II Additional to the Geneva Conventions of August 12, 1949, and Relating to the 
Protection of Victims of Noninternational Armed Conflicts, Concluded at Geneva on June 10, 1977, Treaty Doc. 
100-2, 100th Cong., 1st Sess., in 26 ILM 561 (1987). Over a third ofthe nations ofthe world, including NATO allies, 



80 The Tanker War 



had ratified one or both Protocols by the Tanker War's end. See Schindler & Toman 701-03; Ratifications and 
Accessions to the Geneva Conventions and/or to the Additional Protocols between 1.3 1988 and 30.6 1988, insert in 
Dissemination (No. 10, Sept. 1988). Many provisions are considered customary international law, e.g., prohibitions 
against some reprisals. For analysis of the Gas Protocol, Fourth Convention and Protocol I in the Tanker War context, 
see nn. VI. 268-71, 281-99, 401-55 and accompanying text. 

16. See generally David Holloway, Gorbachev's New Thinking, 68 For. Aff. 66 (No.l, 1989); Robert Levgold, The 
Revolution in Soviet Foreign Policy, id. 82. Compare these views with Admiral C.A.H. Trost, US Chief of Naval 
Operations, This Era and the Next: American Security Interests and the US Navy, address at Naval War College, 
Newport, R.I. , Jan. 10, 1989, typed release from US Navy Internal Relations Activity; and US Secretary of Defense 
Frank C. Carlucci, Preface to Soviet Military Power: An Assessment of the Threat 4, 5 (1988). 

17. This multi-sided power structure in the ensuing discussion adds several countries to participants listed in 
John E. Peterson, Defending A rabia: Evolution of Responsibility, in International Issues and Perspectives 117 (1980), 
which, as its title indicates, is primarily concerned with Arabian peninsula issues. 

18. Ahmad Naghibzadeh, Western Europe and the War, in Rajaee, Iranian Perspectives 39, 42, referring to 
Exchange of Letters Respecting Recognition & Protection of an Arab State in Syria (Sykes-Picot Agreement), May 
9/16, 1916, Fr.-Gr. Brit., 221 CTS 323. 

19. Iraq is a major oil producer with 100 billion barrels of reserves. See generally Joyner, n. 1 3, 8-9 for a geopolitical 
sketch of Iraq at the end of the Tanker War; Majid Khadduri, Socialist Iraq: A Study in Iraqi Politics Since 1968 
(1978) for internal Iraqi politics analysis in the decade before the war. 

20. Iran is also a major oil producer, with 93 billion barrels in proven reserves and six refineries, including 
Abadan, a 20-minute flight from Iraq. See generally Joyner, n. 13, 7-8 for a geopolitical sketch of Iran at the end of the 
Tanker War. 

21. Charter Establishing Gulf Cooperation Council, Including Rules of Procedure & Unified Economic 
Agreement, May 25 & Nov. 1 1 , 198 1 , 26 ILM 1 1 38 ( 1 987) (GCC Charter) created the GCC. See also Simma 706; William 
Van Orden Gnitchel, The Arab States' Gulf Cooperation Council: Rules for Trade and Industry, 20 Int'l Law. 309 (1986); 
Joseph A. Kechichian, The Gulf Cooperation Council and the Gulf War, in Joyner 91 ; Nassibe G. Ziade, Introductory Note, 
in International Issues, n. 17, 1 1 (1980) (explaining GCC's genesis, development); Richard P. Johnson, Conquering 
Fear in the Gulf, 115 Proceedings 78 (Mar. 1989) (analyzing GCC in action); Michael Sterner, The Gulf Cooperation 
Council and Persian Gulf Security, in Naff, Gulf Security ch. 1. GCC States line the Gulf western shore. For analysis of 
the region's geography, see nn. 66-69 and accompanying text. 

22. The smallest of the Gulf States, the island nation of Bahrain has one of the largest oil refineries in the region 
and considerable oil reserves. See generally Joyner, n. 13, at 11 for a geopolitical sketch of Bahrain at the end of the 
Tanker War. Bahrain became independent in 1971. MacDonald 30. 

23. Kuwait has significant oil reserves and offshore pumping facilities. See generally Joyner, n. 13, 9-10 for a 
geopolitical sketch of Kuwait at the end of the Tanker War. Kuwait became independent in 1961 . MacDonald 30. 

24. Oman has significant oil reserves. See generally Joyner, n. 13, 11-12 for a geopolitical sketch of Oman at the end 
of the Tanker War. Oman has been independent since 1650. MacDonald 60 n.18. 

25. Qatar has significant oil reserves. See generally Joyner, n. 13, 10 for a geopolitical sketch of Qatar at the end of 
the Tanker War. Qatar became independent in 1971. MacDonald 30. 

26. Saudi Arabia has a 10 million barrel per day pumping capacity and reserves estimated at 170 billion barrels, 
the largest on Earth. See generally id. 6-7 for a geopolitical sketch of Saudi Arabia at the end of the Tanker War. 

27. Abu Dhabi has one of the richest oil areas on Earth; Dubai is a major world gold trader. Like many new States, 
the UAE and neighboring Qatar have experienced internal instability. Burrell & Cottrell, n. 7, 18-22; 
MacDonald 30; Joyner, n. 13, 10-11. 

28. Peterson, n. 17, 118-21. 

29. Cable 179. 

30. Id. 182. 

31. Id. 189; see also MacDonald 33; James Stewart, East of Suez, 92 Proceedings 40 (Mar. 1966). Kuwait was 
admitted to the United Nations in 1963. Introductory Note, Wellens 839, 841. The Arab League, or League of Arab 
States, is governed by two treaties: Pact of League of Arab States, Mar. 22, 1945, 70 UNTS 238; Treaty of Joint Defence 
& Economic Co-operation Between Arab States, with Military Annex, June 17, 1950, 157 BFSP 669, 48 AJIL Supp. 51 
(1955). Thus the League can be seen as a regional self-defense organization under UN Charter, art. 5 1 , and as a regional 



The War, 1980-88 81 



arrangement under id., art. 52. See Hussein A. Hassouna, The League of Arab States and Regional Disputes ch. 1 
(1975); Majid Khadduri, The Gulf War: The Origins and Implications of the Iraq-Iran Conflict 140 (1988); 
Robert W. MacDonald, The League of Arab States (1965); Simma 701; Gerhard Bebr, Regional Organizations: A 
United Nations Problem, 49 AJIL 166, 181 (1955); Khadduri, The Arab League As a Regional Arrangement, 40 id. 756 
(1946); nn. III. 800-17 and accompanying text. 

32. Frank R. Barnett, Preface, in Burrell & Cottrell, n. 7, v; see also MacDonald 28. 

33. German or Italian relationships with area States have been less affected by historical considerations. 
Naghibzadeh, n. 18, 42. 

34. Cable 196. 

35. Burrell & Cottrell, n. 7, 8-14. 

36. Id. 14-15; see also n. 50 and accompanying text. 

37. Burrell & Cottrell, n. 7, 15-16; MacDonald 33. 

38. Burrell & Cottrell, n. 7, 22-30; MacDonald 1 50; Saideh Lotfian, Regional Powers and the War, in Rajaee, 
Iranian Perspectives 13, 25. MacDonald 34-36 lists these among 38 territorial disputes and settlements in the 
region, some of which have been cited previously. For analysis of agreements on continental shelf and other sea 
boundaries, see Parts IV.B.2-IV.B.4, IV.D.2-IV.D.3. 

39. Burrell & Cottrell, n. 7, 37. 

40. For years Middle East Force consisted of two overage destroyers and a seaplane tender or a transport as 
flagship. Later more modern destroyers deployed. Id. 35-36. CENTCOM later exercised command over the much 
larger and far more capable Joint Task Force Middle East (JTFME). See nn. 77-80 and accompanying text. 

41 . The US return from investments in the area has been in the billions of dollars for years. Burrell & Cottrell, 
n. 7, 37; Peterson, n. 17, 121-23; see also Peter W. DeForth, U.S. Naval Presence in the Persian Gulf: The Mideast Force 
Since World War II, 28 NWC Rev. 28 (No. 1, 1975). 

42. Peterson, n. 17, 123; see also Hiro 14. The UK withdrawal was announced in 1968. Barnett, n. 32, v. 

43. Burrell & Cottrell, n. 7, 8, 31-33. 

44. "Because many ruling families [in Gulf States other than Iraq] owe their power and position to England, one 
should never overlook British influence." Naghibzadeh, n. 18, 42. 

45. See, e.g., nn. 37-38 and accompanying text (Iran claims to Bahrain; Saudi claims to Abu Dhabi, Dhofar, Khufu 
strip). 

46. The agreement had a 15-year life with automatic renewal for 5-year increments unless one State notified the 
other 12 months before the treaty expired. Treaty of Friendship & Cooperation, Apr. 15, 1972, Iraq-USSR, art. 12, in 
Khadduri, n. 19, 241, 243. For further analysis of this and similar bilateral agreements of the Soviet Union, see nn. 
III. 289-302 and accompanying text. 

47. Iran's Shah was promised any but nuclear weapons. Hiro 15. 

48. Naff, Iran-Iraq War 62; Peterson, n. 17, 125. 

49. John Chipman, Europe and the Iran-Iraq War, in Karsh 215, 220. 

50. International Border & Good Neighbourly Relations Treaty, June 13, 1975, Iran-Iraq, with Protocols, 14ILM 
1133 (1975). Hiro xii, 8-10, 17; Harry Post, Border Conflicts Between Iran and Iraq: Review and Legal Reflections, in 
Dekker& Posrch. 1 (1992); Jalil Koshandcl, Facts and Allegations: Iraqi Disclaimer of the 191 S Treaty, in Rajaee, Iranian 
Perspectives 98-103; and Ibraham Anvari Tehrani, Iraqi Altitudes and Interpretation of the 191 S Agreement, in Rajaee, 
Iran-Iraq War 11-23 analyze boundary disputes, diplomacy and the 1847, 1937 and 1975 treaties. See also BenniceL. 
Liner, Iran and Iraq: An Overview, 32 NWC Rev. 97 (No. 4, 1984); Charles G. Niacdonald, Regionalism and the Law of the 
Sea: The Persian Gulf Perspective 73, 28 id. (No. 5, 1980). These are longstanding disputes; they and religious 
differences within Islam were sources of friction between the Ottoman Empire, which governed Iraq through World 
War I, and Persia, now Iran, the Empire's principal enemy, down to today. Hiro 7-8, 2 1 -33; Mansel, n. 1 3, 39, 1 89-90. 

51. Burrell & Cottrell, n. 7, 16-18; Cable 198; Hiro 14; see also nn. 31, 34 and accompanying text. Iran said it 
was "restoring] its sovereignty" over the islands. Tehrani, n. 50, 12-13. 

52. US Secretary of Defense Caspar W. Weinberger, /I Report to Congress on Security Arrangements in the Persian 
Gulf, June 15, 1987, in 26 ILM 1434, 1441-42 (1987); see also Hiro 72-74. T.B. Millar offered a more comprehensive 
rationale for what Soviet naval policy was designed to accomplish in the region: 



82 The Tanker War 



1. to be in a position to exercise effective influence over both ends of the Suez-Red Sea passage: this must 
strengthen their strategic and diplomatic-negotiating position; 

2. to replace the [UK] as the dominant external power in the Arabian Peninsula and . . . Gulf area: the Western 
oil companies and half of the West's oil supplies are then in a measure hostages to Soviet political and economic 
policies; 

3. under Soviet "protection," to foster self-defense and cooperative defense against China in India and 
Southeast Asia; 

4. to obtain positions of political and military strength throughout the . . . region, ... to exercise control over 
sea routes between the western and eastern Soviet Union, and to be able to influence the policies of local governments 
toward Soviet ends in a crisis or at other times of decision; 

5. to provide arms to local governments to foster these ends, and to weaken or destroy the influence of 
competitive powers or ideologies; 

6. to keep watch on [US] naval activities, especially Polaris submarines; and 

7. to ensure increased access to certain raw materials, to trade extensively and profitably within the region, 
and to use trade for political ends if the occasion arises. 

T.B. Millar, Soviet Policies in the Indian Ocean Area 6 (1970), quoted in Burrell & Cottrell, n. 7, 34-35. See also 
Joyner, n. 1 3, 1 3; James T. Westwood, The Soviet Union and the Southern Sea Route, 35 NWC Rev. 54, 63 (No. 1, 1982). 

53. Barnett, n. 32, v; see also nn. 42-45 and accompanying text. 

54. Kazem Sajjadpour, The USSR and the War, in Rajaee, Iranian Perspectives 29-30, referring to Treaty of 
Friendship & Co-Operation, n. 46. 

55. This had been true for over 10 years. Compare Burrell & Cottrell, n. 7, 4 with Naghibzadeh, n. 18, 40. 

56. Elston White, Natural and Energy Resources 104-12 (1985). Japanese dependence stood at 90 percent in 
the Seventies. Burrell & Cottrell, n. 7, 4. 

57. Ralph A. Cossa, America's Interests in the Persian Gulf Are Growing, Not Decreasing, Armed Forces J. Int'L 58 
(June 1987); these figures are consistent with those for the Seventies. See generally Burrell & Cottrell, n. 7, 3-5. 

58. Naghibzadeh, n. 18,43. 

59. Clinton H. Whitehurst, Jr., The U.S. Merchant Marine: In Search of an Enduring Policy 72 (1986); 
Joyner, n. 13, 5. 

60. See generally Robert E. McCleave, Transportation 19-29 (1986); Whitehurst, U.S. Merchant Marine, n. 
59, 225. Boleslaw A. Boczek, Flags of Convenience: An International Legal Study (1962); Rodney Carlisle, 
Sovereignty for Sale: The Origins and Evolution of the Panamanian and Liberian Flags of Convenience ( 198 1) 
analyze development of flags of convenience; see also Ernst G. Frankel, Regulation and Policies of American 
Shipping 74-77 (1982); Samuel A. Lawrence, United States Merchant Shipping: Policies and Politics 101-04, 
182-89 (1966), Whitehurst, ch. 18; Frank L. Wiswall, Jr., Flags of Convenience, ch. 4 in United States Shipping 
Policies and the World Market (William A. Lovett ed. 1996). Whitehurst and id., The U.S. Shipbuilding 
Industry: Past, Present and Future (1983) are recent studies of the US merchant marine, elaborating on McCleave'S 
analysis. 

61. See generally Annex III: Merchant Ships of the World: Ships of 500 grt & Above As of 1 July 1985, in 
Convention on Conditions for Registration of Ships, Feb. 7, 1986, 26 ILM 1229, 1246-50 (1987) (Ship Registration 
Convention). However, the Soviet surge was on a cusp of general decline. See N. Shashnikar, World Shipping 
Competition, ch. 3 in United States Shipping Policies, n. 60, 67, 74-76. 

62. The Conference "had a great influence for later deliberations on the protection and preservation of the marine 
environment" in UN Committees and in LOS Convention drafting. Introduction, H XII. 1 1, in 4 Nordquist 8-9; see also 
Restatement (Third), Part VI, Introductory Note, at 99; id., § 602 r.n.l; see also Birniea Boyle 39-53; Carol Annette 
Petsonik, The Role of the United Nations Environment Programme (UNEP) in the Development of International Law, 5 Am. 
U.J. IntlL. & Pol. 351(1990). 

63. Kuwait Regional Convention for Co-operation on Protection of the Marine Environment from Pollution, 
Apr. 24, 1978, 1140 UNTS 133 (Kuwait Regional Convention); Protocol Concerning Co-operation in Combating 
Pollution by Oil & Other Harmful Substances in Case of Emergency, Apr. 24, 1978, id. 201 (Kuwait Protocol), 
analyzed in Parts IV.A.2, VI.B.2.a, VI.B.2.c(I), VI.B.2.c(III). 

64. Bowman & Harris 295 (1 1th Cum. Supp. 1995). 



65. MacDonald 79. Chapter IV analyzes the Tanker War in the LOS context; Chapter VI considers maritime 
environmental issues. 






The War, 1980-88 83 



66. The Liberty Ships of World War II displaced 5,000 to 10,000 tons. Modern aircraft carriers displace 80,000 
tons and require over 75 feet of water to navigate safely. 

67. See also n. 51 and accompanying text. 

68. The industry declined after World War II when cultured pearls entered the market; 75,000 pearlers once plied 
their trade in Gulf offshore waters. Burrell & Cottrell, n. 7, 1. 

69. MacDonald 25-26, 78-79, 165-66, publishing maps, and Joyner, n. 13, 2-4, also publishing a map, supplied 
material for the foregoing; see also nn. 36, 50, 85, 86, 89, 100, 153-56, 489 and accompanying text. 

70. Cossa, n. 57, 58-59. 

71. Gioia, Commentary, n. 7, 57. 

72. MacDonald 78; Eliyahu Kanovsky, Economic Implications for the Region and World Oil Market, in Karsh 231, 
249. 

73. More than 60 a day passed through Hormuz during the early Seventies. Burrell & Cottrell, n. 7, 9; Joyner, 
n. 13, 4. Tanker traffic declined by the war's end. Kanovsky, n. 72, 249; see also n. 524 and accompanying text. 
MacDonald's estimate for 1968 of one tanker every 15 minutes seems high, unless he means passage during daylight 
hours only. 

74. S.P. Menefee, Commentary, in de Guttry & Ronzitti 99, 100. 

75. President Jimmy Carter, State of the Union Address, Jan. 23, 1980, 1 Public Papers: Carter 1980-81, at 194, 197 
(1981); Naff, Iran-Iraq War 64. On July 19, 1979, responding to statements by Palestine Liberation Organization 
supporters, the US State Department had issued a warning to oil tanker crews and other vessels to be alert for attempts 
by terrorists to seize or sink a ship in the Persian Gulf. In August 1979 Lloyd's of London had announced that special 
war-zone insurance would be required for tankers traveling through the Gulf. There was also the possibility that a 
terrorist attack might occur in the Strait. MacDonald 165. 

76. Two carrier task forces were on station at various points during the next year. Cable 205-06; Harold H. 
Saunders, The Iran-Iraq War: Implications for US Policy, in Naff, Gulf Security 59, 64; see also nn. 39-49 and 
accompanying text. 

77. Diego Garcia development began in 1979, along with agreements between the United States and Egypt, 
Kenya, Oman and Somalia to permit US access to facilities in those countries. See, e.g., Agreement Concerning 
Availability of Certain Indian Ocean Islands for Defense Purposes of Both Governments, Dec. 30, 1966, US-UK, 18 
UST 28, 603 UNTS 273; Agreement Concerning Privileges & Immunities of US Military and Related Personnel in 
Egypt, July 26, 1981, 33 UST 3353; Naff, Iran-Iraq War 63-64; Saunders, n. 76, at 63. In 1986 the United Kingdom 
and the United States concluded a more specific agreement on Diego Garcia. Agreement Concerning US Naval 
Support Facility on Diego Garcia, Feb. 25, 1976, UK-US, 27 UST 315, 1018 UNTS 372 (Diego Garcia Agreement); see 
n. 302 and accompanying text. In late 1978 the U.S.S. Constellation carrier task force had sailed for waters off Iran to 
manifest US concern for the chaos in Iran, but the order was cancelled a few days later after USSR protests of "gunboat 
diplomacy." The result was damage to US prestige. In March 1979 two battle groups were sent to the Arabian Sea after 
the Hostage Crisis. See n.76. The latter was reminiscent of an earlier manifestation of presence in 1974. Id. 201. In 
April 1980 U.S.S. Nimitz launched helicopters in the Arabian Sea in a failed attempt to rescue US Embassy hostages in 
Teheran. Id. 206. For a juridical account of the crisis, see generally Hostage Case, n. 12; see also n. 12 and accompanying 
text. UK relations with Iran were then cool and a little better with Iraq. A.V. Lowe, Commentary, in de Guttry & 
Ronzitti 241, 242-43. The United States had lacked formal diplomatic representation in Baghdad since 1967. 
However, diplomatic contact with Iran and Iraq proceeded in third country capitals or in the United Nations. Hiro 71 . 

78. At the time RDJTF was more of a tripwire to demonstrate to the USSR that the United States was prepared to 
respond on a global basis if threats to the region developed. The projection was for facilities for four or five divisions 
(80,000-100,000 troops) to be ordered to the region within a month. Seven ships were initially sent. Whitehurst, U.S. 
Merchant Marine, n. 59, at 121-22; Thomas L. McNaugher, U.S. Policy and the Gulf War: A Question of Means, in 
Joyner 111,112; Saunders, n. 76, 65-66. See also Part IV.C.4. 

79. RDJTF was often erroneously known as the RDF or Rapid Deployment Force. Maxwell Orme Johnson, The 
Role of U.S. Military Force in the Gulf War, in Joyner 127, 129-30. 

80. Within two weeks after outbreak of the war four US Airborne Warning and Control Systems (AW ACS) 
aircraft were dispatched to Saudi Arabia; they were later sold to the Saudis as the GCC moved from a posture of 
internal security cooperation to economic and defense security posture. Hiro 75; Simma 706; Lotfian, n. 38, 19; 
Saunders, n. 76, 69. See also nn. 172, 261 and accompanying text. US-built Saudi facilities were designed to allow 
handling US forces "should the Saudis feel in the future that their security required deployment of US forces." 



84 The Tanker War 



Saunders 63. This precaution may have been useful during the 1980-88 war but was a godsend during the 1990-91 war. 
See A. Reza Sheikholeslami, Saudi Arabia and the United States: Partner ship in the Persian Gulf, in Rajaee, Iran-Iraq War 
103-22 for a highly critical, and occasionally less than balanced, account of Saudi-US relations during the Tanker War. 

81. See generally John Devlin, Iraqi Military Policy: From Assertiveness to Defense, in Naff, Gulf Security 129-39; 
Keith NicLachlan, Analyses of the Risks of War: Iran-Iraq Discord, 1979-1980, in Rajaee, Iran-Iraq War 24-31. 

82. For analysis of Iraqi war aims, see PhebeMarr, The Iran- Iraq War: The View from Iraq, in Joyner 59. For analysis 
of phases of Iran's war aims, see Eric Hooglund, Strategic and Political Objectives in the Gulf War: Iran's View, in id. 39. 
Iran and Iraq did not end diplomatic relations until October 1987, during the war's seventh year. Chubin & Tripp 252. 
See also n. 409 and accompanying text. 

83. Hiro 35-39, 75-76; Lotfian, n. 38, 14-16; Itamar Rabinovich, The Impact on the Arab World, in Karsh 101, 
102-03. 

84. The UK position in 1980-88 was that Iran and Iraq were in a "conflict," not a war, and that States' rights and 
duties derived from and were limited by the UN Charter, in particular Art. 51, which preserves an inherent right of 
individual and collective self-defense. The US view was that it was a war, and that belligerent rights, e.g., rights of visit 
and search and neutrality, applied. "This refusal to categorise the conflict as a war, with all the consequences which 
that entailed, is perhaps the most significant aspect of British practice concerning the Gulf conflict." Lowe, 
Commentary, n. 77, at 244-45. See also Christopher Greenwood, Remarks, in Panel, Neutrality, The Rights of Shipping and 
the Use of Force in the Persian Gulf War (Part I), 1988 ASIL Proc. 158, 159-61, citing Foreign and Commonwealth 
Affairs Secretary of State answer, Jan. 28, 1986, 90 Pari. Deb., H.C. (6th ser.) 426 (1986), in de Guttry & Ronzitti 268. 
France had a similar position. Cf Jean Mallein, Commentary, in id. 389, 395, 397. Italy apparently recognized a state of 
war between the belligerents. Italian Defence Minister statement before IV Permanent Commission (Defense), Sept. 
8, 1988, Boll. Coram., X Legis., IV Commissione Permanente (Difensa) 4 (Sept. 8, 1988), in de Guttry & Ronzitti 
441 ; Andrea de Guttry, Commentary, in de Guttry & Ronzitti 419, 432. Belgium and the Netherlands, the other naval 
participants, considered it a war, since they tried to observe "neutrality] in the broad sense of that word." Frits 
Kalshoven, Commentary, in de Guttry & Ronzitti 475, 483. The belligerents perceived it as a war. See, e.g., Iran Notice 
to Mariners No. 17/59, Sept. 22, 1980; Iraq UN Permanent Representative letter to UN Secretary-General, May 5, 
1983, UN Doc. S/15752 (1983), in id. 37, 86-87. The position of the GCC or the USSR, which had naval forces in the 
area; countries, e.g., Australia or Japan, which played roles in the Gulf; or States that played no known direct ro\c,e.g., 
Federal Republic of Germany (FRG) or Norway, is not clear. See nn. 438-46 and accompanying text. The USSR did 
declare its neutrality in September 1980, however, and strongly disapproved of the Iraqi invasion. Chubin & Tripp 
191; Sajjadpour, n. 54, 31. The UN Security Council — in which China, France, the UK, the US and the USSR are 
permanent members pursuant to UN Charter, art. 23(1) — styled it a conflict but also referred to "hostilities" or cited 
humanitarian law applicable to war. See, e.g., S.C. Res. 514 (1982) ("conflict"); S.C. Res. 552 (1984) ("hostilities," 
"conflict"); S.C. Res. 620 ("conflict," Geneva Gas Protocol), in Wellens 450, 457, 473. Other international 
organizations' reactions varied. Compare, e.g., Statement by Nine Member States of the European Community, Sept. 
23, 1987, Bull. Eur. Communities, Commission, No. 9, at 7 (1980), in de Guttry & Ronzitti 553 ("conflict") with 
Vienna Economic Summit, Statement on Iran-Iraq War and Freedom of Navigation in the Gulf, June 9, 1987, 87 Bulletin 4 
(Aug. 1987) ("war"). For reasons developed in succeeding chapters, the Iran-Iraq interaction, 1980-88, was a war; 
"conflict" may be employed as an occasional synonym. Counting noses, Iran, Iraq and most major naval powers in the 
Gulf (Belgium, Italy, Netherlands, United States) thought it a war, and two States (France, United Kingdom), a 
conflict. UK terminology was inconsistent; although the Second Report title referred to "Iran/Iraq Conflict," id. Tl 6.1 
said "the war started in 1980 " Read closely, international organizations' statements have the same inconsistency. 

85. Post, n. 50, 32-33; see also nn. 36, 50 and accompanying text. 

86. Introductory Note, in Wellens 443. 

87. Hiro 39. Merchant ships customarily fly a country's colors whose port they enter at the truck and display their 
registry flag elsewhere, usually at the stern. 

88. Id. 40-41; Introductory Note, in Wellens 443. 

89. Iran NOTMAR No. 17/59, Sept. 22, 1980, in de Guttry & Ronzitti 37; see also Defense Mapping 
Agency/Hydrographic Center, Special Warning No. 48, Sept. 22, 1980, in id. 133, warning mariners to avoid the Shatt 
and Iranian waters until further notice; Djamchid Momtaz, Commentary, in id. 19. 

90. David L. Peace, Major Maritime Events in the Persian Gulf War, in Panel, n. 84, 146, 147; Peace, Major Maritime 
Events in the Persian Gulf War: A Juridical Analysis, 31 VJIL 545, 547 (1991); J. Ashley Roach, Missiles on Target: 
Targeting and Defense Zones in the Tanker War, id. 593, 600-02 (1991). 

91. Momtaz, n. 89, 21-22; see also Hiro 41 (Iran "imposed a naval blockade of the Shatt . . . , trapping many ships 
and incapacitating Basra port"). 



The War, 1980-88 85 



92. 27 Keesing 31006 (1981); Gioia, Commentary, n. 7, 59. 

93. Statement by Nine Member States of the European Community, Sept. 23, 1980, Bull. Eur. Communities, 
Commission, No. 9, at 7 (1980), in de Guttry & Ronzitti 553; see also Lowe, Commentary, n. 77, 243, citing inter alia 
UK Foreign and Commonwealth Affairs Secretary of State answer, Dec. 7, 1983, 50 Pari. Deb., H.C. (6th ser.) 176 
(1983); UK UN Permanent Representative statement before UN Security Council, June 1, 1984, UN Doc. S/PV.2545 
(1984), in de Guttry & Ronzitti 380, 382 (UK position). 

94. Cf. Naghibzadeh, n. 18, 40. 

95. On January 30, 1979 Iraq and Syria had signed a mutual defense pact, declaring intent to create a unified State 
to organize Arab opposition to the Camp David Accords achieved during the Carter administration. Libya and Syria 
signed a merger agreement September 10, 1979, to form an Arab Steadfast and Confrontation Front. By summer the 
Libya-Syria unity scheme had failed; there was no barrier to Syrian support of Iran. Lotfian, n. 38, 20-21; Gabriella 
Venturini, Commentary, in de Guttry & Ronzitti 523, citing 27 Keesing 31010 (1981); 29 id. 32037 (1983). 

96. S.C. Res. 479 (1980), in Wellens 449; see also Introductory Note, n. 31, 443. 

97. Introductory Note, n. 31, 443; see also Hiro 42. 

98. Venturini, Commentary, n. 95, 524, citing inter alia US UN Permanent Representative statement before UN 
Security Council, Sept. 28, 1980, 80 Bulletin 61 (Nov. 1980). 

99. Anthony Clark Arend, The Role of the United Nations in the Iran-Iraq War, in Joyner 191, 192-93. 

100. Iran NOTMAR No. 18/59, Oct. 1, 1980, in de Guttry & Ronzitti 37. 

101. Defense Mapping Agency/Hydrographic Center, Special Warning No. 49, Oct. 4, 1980, in de Guttry & 
Ronzitti 134. 

102. Momtaz,n. 89, 20-21. 

103. 28 Keesing 31850 (1982); 29 id. 32689 (1983); 30 id. 32689, 33057 (1984); 31 id. 33560 (1985); Gioia, 
Commentary, n. 7, 72; Lowe, Commentary, n. 77, 251. 

104. Momtaz, n. 89, 20-21, citing inter alia Iran Foreign Minister letter to UN Secretary-General, Oct. 22, 1980, UN 
Doc. S/14226 (1980) (footnote omitted). 

105. US Deputy Secretary of State Warren Christopher, Conflict in Iran and Iraq, Oct. 17, 1980, 80 Bulletin 52 (Nov. 
1980); US UN Permanent Representative Donald F. McHenry, Iran-Iraq Conflict, Oct. 23, 1980, id. 73 (Dec. 1980); 
Menefee, Commentary, n. 74, 102. The French and UK positions were the same. Lowe, Commentary, n. 77, 243-44, 
citing inter alia UK UN Permanent Representative statement, n. 93; Mallein, n. 84, 395, citing French Foreign Affairs 
Ministry Spokesperson statement, Aug. 3, 1987, in de Guttry & Ronzitti 414. 

106. See, e.g., nn. 148, 216, 278, 303, 325, 357, 379-81, 463 and accompanying text. 

107. See nn. 364-65 and accompanying text; see also nn. 379-81, 411, 458 and accompanying text. 

108. Compare Efraim Karsh, From Ideological Zeal to Geopolitical Realism: The Islamic Republic and the Gulf, in 
Karsh 26, 37, with MacDonald 183-84 (Iranian advocacy of regulated straits passage, special regime for the Gulf). 
Saudi Arabia, by contrast, followed the position eventually adopted by the LOS Convention. Id. 182-83. 

109. Defense Mapping Agency/Hydrographic Center, Special Warning No. 50, Oct. 7, 1980, 2, in de Guttry & 
Ronzitti 134-35; see also W.J. Fenrick, The Exclusion Zone Device in the Law of Naval Warfare, 24 CYBIL 91, 118 
(1986); Gioia, Commentary, n. 7, 72; Roach, Missiles on Target: Targeting, n. 90, 604-05. 

110. Gioia, Commentary, n. 7, 57, 63, citing inter alia Iraq UN Permanent Representative letter to UN 
Secretary-General, May 27, 1984, UN Doc. S/16590 (1984); Iraq UN Permanent Representative letter to UN 
Secretary-General, Feb. 20, 1985, UN Doc. S/16972 (1985), in de Guttry & Ronzitti 90, 92; Momtaz, n. 89, 23, citing 
Iraq Foreign Minister letter to UN Secretary-General, Oct. 19, 1984. 

111. Iraq began the war with $35 billion in foreign exchange reserves, but the war's cost, increased civilian 
commodity imports, and paying for millions of foreign workers, mostly Egyptians and Sudanese, soon whittled it 
away. Kanovsky, n. 72, 233, 236-37. Although the number of Egyptians working in Iraq — 40 percent of Egyptians 
working abroad, 400,000 to up to 1 .3 million — may have declined as the war progressed, remittances home made up 30 
percent of Egypt's merchandise deficit. Funds transfers home went from $580 million to $1 billion for 1982-83. A 1983 
Egypt-Iraq economic accord, by which Egyptians could repatriate 60 percent of earnings, was a result. Even so, an 
increased drain was predicted, perhaps $1.4 billion for the next year. Philip H. Stoddard, Egypt and the Iran-Iraq War, 
in Naff, Gulf Security 25, 49-50. 



86 The Tanker War 



112. 2 Cordesman & Wagner 90-91, 101-02 , 133-34, 170, 186; Hiro 75-76; Farhaug Mehr, Neutrality in the Gulf 
War, 20 ODIL 105 (1989); Francis V. Russo, Neutrality at Sea in Transition: Stale Practice in the Gulf War as Emerging 
International Customary Law, 19 id. 381, 393 (1988). 

113. Chubin & Tripp 154; Kanovsky, n.72,237; Kechichian, n. 21, 92. Saudi deficits every year after 1982-83 was a 
ripple effect of supporting Iraq. Kanovsky 248. However, Saudi oil production had promoted an economic boom 
before 1980. See MacDonald 51-52. 

114. Lotfian, n. 38, 21; see also nn. 95, 112, 181 and accompanying text. Closing the Syrian pipeline cost Iraq $8 
billion in income. Iraq had a major budget shortfall in 1982, even with $19 billion in Gulf State subsidies. Devlin, n. 
81,142. 

115. Lotfian, n. 38, 18. 

116. Hiro 76-77 believes these States acted out of concern for Shiite minorities within their populations, who 
might align ideologically with the Shiite Iranian State, and because their offshore oil platforms and other facilities 
were vulnerable to Iranian attack. Saudi Arabia may have allowed Iraq to use its airspace and even its air bases, 
although the official Saudi position was to the contrary. Id. 76. The result, early in the war, for Kuwait was occasional 
Iranian raids on border posts and attacks on one of its refineries. Id. 77. Kanovsy, n. 72, 248 says Gulf States feared Iran 
and granted or loaned money to Iraq to buy protection and to bolster their military resources. 

117. See n. 51 and accompanying text. 

118. Three of the seven UAE principalities supported Iran, including Dubai, where 20,000 Iranian merchants 
were based. Hiro 77, 1 16; Kanovsky, n. 72, 237; Lotfian, n. 38, 18. 

119. Hiro 77-78. 

120. Id. 79-80; Lotfian, n.38, 16. Saudi Arabia may have allowed use of its air bases, perhaps as temporary Iraqi 
aircraft sanctuaries. Daniel Pearl, Same Old Song: Iraq's Best Planes Are Mainly in Iran, Wall St. J., Apr. 29, 1998, at Al, 
A10. 

121. Marr, n. 82,65. 

122. Hiro 81. 

123. See generally Henri J. Barkey, The Silent Victor: Turkey's Role in the Gulf War, in Karsh 133-53. 

124. Compare Lotfian, n. 38, 17, an Iranian source, with Stoddard, n. Ill, 36-37, 50-51. 

125. Hiro 81-82. This may be partly explained by UK access to North Sea oil, which gave Britain "the luxury, at 
least initially, of seeing her interests more plainly as retaining decent relations, to the extent that the policies of either 
belligerent allowed;" and for France, the 15 billion franc debt Iraq owed; "like all large creditors in similar 
circumstance France was . . . obliged to continue to assist Iraq or risk losing all." Moreover, "[a] declaratory policy of 
neutrality . . . was in part a fruit of the realization that the United Kingdom was not in a position to play a balancing 
role . . . diplomatically or militarily;" there were yet vestiges of feeling about Britain's "colonial" history in the Middle 
East. Chipman, n. 49, 217-19. 

126. These came from Austria, Brazil, Colombia, Egypt, France, PRC, South Africa and Spain. Hiro 82; Lotfian, 
n. 38, 18-19; Mohiaddin Mesbahi, The USSR and the Iran-Iraq War: From Brezhnev to Gorbachev, in Rajaee, Iran-Iraq 
War 69, 88-89; Stoddard, n. Ill, 36-37. 

127. Chubin & Tripp 204, 237. 

128. Mesbahi, n. 126,89. 

129. Chubin & Tripp 191. 

130. Chipman, n. 49, 221-22; see also n. 322 and accompanying text. 

131. Previously there had been a steady rise in Iran's economy after the 1953 oil crisis. Kanovsky, n. 72, 241-42; 
MacDonald 45. Iraq started the war with a $35 billion foreign exchange kitty, which was soon frittered. Kanovsky 
237; see also nn. 112-24 and accompanying text. 

132. Chubin & Tripp 207. Iran's military power had increased significantly since World War II, when Britain and 
the USSR jointly occupied Iran. MacDonald 42-45. 

133. Hiro 80-81; Rabinovich, n. 83, 104. 

134. Hiro 81-83. 



The War, 1980-88 87 



135. US-manufactured materials began filtering into Iran, at the same time US export controls were in force, as 
early as 1980, through Israeli and UK middlemen. Id. 83, 117-18. 

136. See nn. 46-49, 54 and accompanying text. 

137. Hiro 83-84. 

138. Sajjadpour, n. 54, 30-31; see also Chubin & Tripp 204-05, 221; Mark N. Katz, Moscow and the Gulf War, in 
Joyner 139, 140-42; Robert S. Litwak, The Soviet Union and the Iran-Iraq War, in Karsh 200-05. 

139. Sajjadpour, n. 54, 32, referring to Treaty of Friendship & Cooperation, Oct. 8, 1980, Syria-USSR, 1222 UNTS 
343. Chubin & Tripp 191 say the USSR "strongly disapproved" of the Iraqi invasion. 

140. Hiro 84-85. 

141. Iran NOTMAR No. 20/59, Nov. 4, 1980; zd. No. 22/59, Nov. 16, 1980; u*. No. 23/59, Jan. 21, 1981, mdeGuTTRY 
& Ronzitti 38; see also Momtaz, n. 89, 23. 

142. Momtaz, n. 89, 21. Iraqi air strikes damaged an ULCC, Seawise Giant, at Iran's Larak oil terminal late in the 
war. See n. 457 and accompanying text. 

143. NWP 9A Annotated, H 7.4.1, citing inter alia Milton Viorst,/rarz at War, 65 Foreign Aff. 349, 350 (1986;; see 
also 2 Cordesman & Wagner 92; Peace, in Panel, n. 90, 148-49; Peace, Major Maritime Events, n. 90, 547-48; J. Ashley 
Roach, Missiles on Target: The Law of Targeting and the Tanker War, in Panel, n. 90, 154, 156-57; Roach, Missiles on 
Target: Targeting, n. 90, 596-97, 600-01. For analysis of contraband and related issues, see Part V.D. 

144. Iran Law Regarding Settlement of Disputes over War Prizes, Nov. 17, 1987, de Guttry & Ronzitti 39 (Iran 
Prize Law), not in force until Jan. 31, 1988. Id. Panel, n. 84, met a few months after the Law went into force; its almost 
simultaneous publication with research and presentation of the Panel probably accounts for Panel at 170 (Burnett 
remarks) and Panel, Neutrality, the Rights of Shipping and the Use of Force in the Persian Gulf (Part II), 1988 ASIL Proc. 
599, 609 (Wiswall remarks) statements that no prize courts were established. There is no record of any Iraqi court. 

145. James Cable, Navies in Violent Peace 60-70 (1989); Lowe, Commentary, n. 77, 247, citing inter alia Second 
Report H 6.18. The United Kingdom was at pains, within limits imposed by close relationship to the United States, to 
stress the independence of her military activity. Chipman, n. 49, 221. 

146. The Patrol held at least one joint exercise with a Gulf State. Lowe, Commentary, n. 77, 247, citing inter alia 
Second Report 11 6.9. 

147. Second Report H 6.1 1; Lowe, Commentary, n. 77, 247; see also Ross Leckow, The Iran-Iraq Conflict in the Gulf: 
The Law of War Zones, 37 ICLQ 629, 641 (1988); 

148. President Carter, Remarks at a Question-and-Answer Session with Local Residents (of Lyndhurst, N.J. ) Oct. 15, 
1980, 3 Public Papers: Carter 1980-81, at 2268 (1982); Menefee, Commentary, n. 74, 102. 

149. Cable 208. The United States stopped shipments on turbines for Iraqi frigates being built in Italy. 27 Keesing 
31011 (1981). See also Council Calls on Iran and Iraq to Settle Dispute Peacefully, 17UNChron. 5, 7 (Sept. 1980). The ships 
sat out the war in Italy. 

150. Menefee, Commentary, n. 74, 101, citing inter alia US UN Permanent Representative statement before UN 
Security Council, Sept. 28, 1980, 80 Bulletin 61 (Nov. 1980); Christopher, n. 105; see also Saunders, n. 76, 71-72. 
French and UK policies were the same on freedom of navigation. See Lowe, Commentary, n. 77, 143-44, citing UK UN 
Permanent Representative statement, n. 93; Mallein, n. 84, 394. 

151. See Executive Order No. 12170, 3 CFR 457 (1980); Executive Order No. 12205, id. 248 (1981), amended 
Executive Order No. 12211, id. 253; Executive Order No. 12282, irf. 113(1982); Executive Order No. 12294, id. 139 
Executive Order No. 12613, id. 256 (1988); see also Notice of President, Sept. 30, 1997, 62 Fed. Reg. 51591 (1997) 
International Emergency Economic Powers Act, 50 USC §§ 1701-06; Dames & Moore v. Regan, 453 US 654 (1981). 

152. Iran (Temporary Powers) Act 1980 (Eng.). 

153. 27 Keesing 31014 (1981); 28 id. 31522 (1982); Gioia, Commentary, n. 7, 59. 

154. Boleslaw Boczek, Law of Warfare and Neutrality: Lessons from the Gulf War, 20 ODIL 239, 244, 257 (1989). 

155. Gioia, Commentary, n. 7, 59-60, citing Iraq President letter to UN Secretary-General, Oct. 16, 1980, UN Doc. 
S/14221 (1980), in de Guttry & Ronzitti 84. 

156. UN Secretary-General letter to Iraq President, Oct. 16, 1980, UN Doc. S/14221 (1980), in de Guttry & 
Ronzitti 84. 



88 The Tanker War 



157. Hiro 50; Hooglund, n. 82,42. See nn. Ill 813-17 for analysis of the ICO. Charter of the Islamic Conference 
Organization, Feb. 28, 1973, 914 UNTS 111, established ICO. 

158. Hooglund, n. 82, 42. 

159. See generally GCC Charter, n. 21; Hiro 78; Simma 706; see also n. 21 and accompanying text. 

160. Simma 706; Sterner, n. 21, 17. 

161. Venturini, Commentary, n. 95, 531. 

162. Hiro 78-79. 

163. Kechichian, n. 21, 93-95; see also nn. 51, 81, 119 and accompanying text. 

164. Kechichian, n. 21, 95; see also Barry Rubin, The Gulf States and the Iran-Iraq War, in Karsh 121, 123-25. 
Although tilting toward Iraq like the Soviet Union, the GCC was cool to USSR friendship feelers until early 1985. 
Katz,n. 138,142. 

165. Kechichian, n. 21, 93. Despite fluctuations in Saudi-US relations, Saudi Arabia depended on the United 
States for its defenses and began building them as early as the Sixties. MacDonald 51. 

166. Compare Kechichian, n. 21, 108 and Sterner, n. 21, 18, dating Peninsula Shield in \9Sl,with Lotfian, n. 38,25, 
placing the exercise in 1981. Lotfian may refer to "tame" 1981 and 1982 GCC defense studies. Early exercises served 
more as symbolic political rather than strategic functions, manifesting GCC commitment to common defense 
strategy. Sterner 18. See also nn. 38, 45 and accompanying text. 

167. Simma 706; Kechichian, n. 21, 108. 

168. Sterner, n. 21,18-19. 

169. Kuwait resisted a multilateral pact because of its extradition requirements. Id. 17-18. 

170. Kechichian, n. 21, 95; Sterner, n. 21, 20-21. 

171. Sterner, n. 21, 20; see also Saunders, n. 76, 68-70. 

172. US Secretary of Defense Caspar W.Weinberger, The Permanence of U.S. Interests in the Persian Gulf, remarks at 
American Defense Preparedness Association, May 20, 1987, Office of Assistant Secretary of Defense (Public Affairs) 
News Release No. 264-87, at 3 (1987). The AWACS were later sold to Saudi Arabia as GCC States began considering 
defense needs. Lotfian, n. 38, 19; Saunders, n. 76, 69; see nn. 80, 261 and accompanying text. 

173. Interview with US Secretary of State Alexander Haig, Mar. 5, 1981, American Foreign Policy Current 
Documents 1981, at 654 (1984) {Haig Interview); Menefee, Commentary, n. 74, 102. 

174. Hiro 75. 

175. This was an expansion and continuation of the Carter Administration policy. Interview with President Ronald 
Reagan, Feb 2, 1981, American Foreign Policy Current Documents, 19SI, ai 653; Haig Interview, n. 173,654; Hiro 78; 
Menefee, Commentary, n. 74, 102; see also nn. 77-78 and accompanying text. 

176. Defense Mapping Agency/Hydrographic Center, Special Warning No. 53 (May 27, 1981), in de Guttry & 
Ronzitti 136. 

177. 2 Cordesman & Wagner at 336-37; Navis & Hooten 63; Iraq UN Permanent Representative letter to UN 
Security Council President, Aug. 19, 1981, UN Doc. S/14637 (1981), in de Guttry & Ronzitti 85; Momtaz n. 89, 24; 2 
von Heinegg 102. 

178. Navis & Hooten 72; 28 Keesing 31850, 31852 (1982); 30 id. 32689 (1984); Gioia, Commentary, n. 7, 61. 

179. 28 Keesing 31522 (1982). 

180. See nn. 210-15 and accompanying text. 

181. 2 Cordesman & Wagner 133-34; Hiro 80; Devlin, n. 81, 142-43; Kanovsky,n. 72, 238; see a/50 nn. 112, 114 and 
accompanying text. 

182. Kanovsky, n. 72, 238; Marr, n. 82, 67. Iraq also explored building a pipeline through Jordan to the Port of 
Aqaba; this did not materialize. Rabinovich, n. 83, 102. 

183. Michael Lenker, The Effect of the Iran-Iraq War on Soviet Strategy in the Persian Gulf, in Naff, Gulf Security 8 1 , 



The War, 1980-88 89 



184. Hiro 81; see also Stoddard, n. Ill, 29-30. For analysis of the Arab League, see nn. 31, III. 800-17 and 
accompanying text. 

185. Hooglund, n. 82, 43. 

186. Kechichian, n. 21, 96-97. 

187. See nn. 165-71 and accompanying text. 

188. Hiro 62-63. 

189. S.C. Res. 514, 522 (1982), in Wellens 450-51. Iran's conditions for a settlement had been retaining the 1975 
border agreement, n. 50, repatriation of 100,000 Iraqi citizens expelled by Iraq, a declaration that Iraq caused the war, 
$100 billion in war damages, and punishing Saddam Hussein as a war criminal. 

190. Introductory Note, n. 31, 443. Although Javier Perez de Cuellar had been elected UN Secretary-General to 
succeed Kurt Waldheim in January 1981, the UN role in the war remained predominantly the same. Arend, n. 99, 193. 

191. By and large these were only marginally successful. See Hiro 87-98. 

192. Final Declaration of 12th Summit of Arab Heads of State, Sept. 6-9, 1982,21 ILM 1144, 1145-46(1982). For other 
peace initiatives, see 28 Keesing 31852 (1982) (GCC); 29 id. 32595 (1983); 30 id. 33058 (1984) (GCC condemned Iran 
aggression); 31 id. 33561 (1985) (Arab League, others); 32 id. (1986) (GCC claimed Iran persisted in ignoring efforts to 
end war). 

193. Terms included ceasefire during the pilgrimage season, Iraq's evacuating Iranian territory and $70 billion 
compensation to Iran from the Islamic Reconstruction Fund, to be financed by the Gulf States. Hiro 91, 114. 

194. Iran had recaptured Khoramshahr port and was confident of more victories. Tousi, n. 1.30, 58. 

195. Id. 

196. Hiro 63, 114-15. 

197. Naghibzadeh, n. 18, 44-45. 

198. Hiro 119. 

199. Defense Mapping Agency/Hydrographic Center, Special Warning No. 62, Aug. 16, 1982, in de Guttry & 
Ronzitti 136; see also 28 Keesing 31850 (1982); Gioia, Commentary, n. 7, 72-73; Momtaz, n. 89, 29. 

200. Gioia, Commentary, n. 7, 73, citing inter alia 28 Keesing 31850 (1982). Iraq later justified its attacks as 
self-defense. Gioia, citing Iraq UN Permanent Representative letter to UN Secretary-General, May 5, 1983, UN Doc. 
S/15752 (1983); Iraq UN Permanent Representative letter to UN Secretary-General, Dec. 23, 1983, UN Doc. S/16238 
(1983); Iraq UN Permanent Representative letter to UN Secretary-General, May 24, 1984, UN Doc. S/16590 (1984), in 
de Guttry & Ronzitti 86-90. 

201. 2 Cordesman & Wagner 171; 28 Keesing 31850 (1982); 29 id. 32594 (1983); 30 id. 32680, 33058-59 (1984); 31 
id. 33560 (1985); Roach, Missiles on Target: Targeting, n. 90, 605; Defense Mapping Agency/Hydrographic Center, 
Special Warning Modifying Special Warning No. 62, Nov. 24, 1982, in de Guttry & Ronzitti 137. 

202. W.J. Fenrick, Military Objectives in the Law of Naval Warfare, 1 BSFHV 1, 20 (1991). 

203. Hiro 98. 

204. United States Commitment to Maintain Free Access to the Persian Gulf Area, Oct. 5, 1980, in American Foreign 
Policy Basic Documents, 1977-80, at 800 (1983); Menefee, Commentary, n. 74, 101-02. 

205. Chubin & Tripp 193. 

206. Id. 193-94. 

207. Id. 191-92. 

208. Kechichian, n. 21,97. 

209. Id. 98. 

210. Hiro 98; Andrea de Guttry & Natalino Ronzitti, Introduction, in de Guttry & Ronzitti 3, 9; Ronald A. 
DeMarco & John P. Quinn, The Impact of War and Military Operations Other Than War on the Marine Environment: Policy 
Making on the Frontiers of Knowledge, in Protection of the Environment 87, 93-94; Frank R. Finch, 77i 15 Land Is Our 
Land: The Environmental Threat of Army Operations, in id. 99, 109; Gioia, Commentary, n. 7, 76; 29 Keesing 32594-95 
(1983); Rainer Lagoni, Comments: Methods or Means of Warfare, Belligerent Reprisals, and the Principle of Proportionality, 
in Dekker&Post 115, 121; Menefee, Commentary, n. 74, 103; Margaret T. Okorodudu-Fubara, Oil in the Persian Gulf 



90 The Tanker War 



War: Legal Appraisal of an Environmental Disaster, 23 St. Mary's L.J. 123, 129 (1991); Saeid Mirzaee Yengejeh, The 
Need for Modification and Development of the Laws of War in Modern International Law, in Rajaee, Iran-Iraq War 217, 
223-24. John Salter, Environmental Legal Issues Arising from the Gulf Conflict, 10 Oil & Gas Tax Rev. 348, 349 (1990) 
estimates the Nowruz leakage at 30,000 tons of crude a day, considerably more than other accounts. Yengejeh 223 
estimated a 250,000-barrel total spillage. General accounts of the war paid no attention to the environmental damage. 
See Hiro 98; Navis & Hooten 56. 

211. Iraq UN Permanent Representative letter, May 5, 1983, n. 200, in de Guttry & Ronzitti 86. 

212. Menefee, Commentary, n. 74, 103, citing Senior US Government Official, Visit of Sultan Qaboos of Oman, Apr. 
12, 1983, American Foreign Policy Basic Documents, 1983, at 694, 695 (1985); President Reagan, Remarks at the 
Welcoming Ceremony for Amir Isa bin SulmanAl Khalifa of Bahrain, July 19, 1983, 2 Public Papers: Reagan 1983, at 1049 
(1985). 

213. Gioia, Commentary, n. 7, 76, citing inter alia UN Docs. S/15723 (1983); S/16049 (1983), S/16465 (1984) and 
referring to Kuwait Regional Convention and Kuwait Protocol, n. 63; see also Yengejeh, n. 210, 224; Parts IV. A. 2, 
VI.B.2.a, VI.B.2.c(I), VI.B.2.c(III). 

214. Gioia, Commentary, n. 7, 77, citing Iraq UN Permanent Representative letter, May 5, 1983, n. 200; Iraq UN 
Permanent Representative letter, Dec. 23, 1983, n.200, 11 2, in de Guttry & Ronzitti 86, 89. 

215. 28 Keesing 31850 (1982); 30 id. 33058 (1984). 

216. S.C. Res. 540 (1983), in Wellens 451 (italics in original). The United States supported the resolution and had 
reemphasized its freedom of navigation policy when Iran threatened to restrict Gulf shipping or to close Hormuz. 
Menefee, Commentary, n. 74, 103; see also Fenrick, Exclusion Zone, n. 109, 120-21. 

217. Venturini, Commentary, n. 95, 524, citing UN Doc. S/PV 2493, at 13 (1983). 

218. Kechichian, n. 21,97. 

219. McNaugher, U.S. Policy, n. 78, 112; Weinberger, The Permanence, n. 172, 3. The command was reorganized 
twice more in 1987. John H. Cushman,Jr., U.S. Reorganizing the Gulf Command, N.Y. Times, Dec. 8, 1987, at All. See 
also 3 Cordesman & Wagner ch. 5, analyzing CENTCOM and strategic technology for limited force engagements; 
Johnson, n. 79, 129-31; nn. 77-78, 175 and accompanying text. At first the Reagan Administration did not fully think 
through RDJTF uses for some contingencies. Saunders, n. 76, 74-75. 

220. Naff, Iran-Iraq War 64-65. 

221. Chubin & Tripp 208; McNaugher, U.S. Policy, n. 78, 112. The Carter and Reagan Administrations did not 
have the capacity to meet all possible contingencies, nor did either fully think through what those commitments 
involved. Saunders, n. 76, 73. 

222. Saunders, n. 76, 72. 

223. If this had matured, it would have helped exclude the Soviet Union from the area. Lenker, n. 183, 89-90. 
Reviving the Agreement prompted the USSR to suggest to Pakistan and Turkey that they review their bilateral 
economic relations. Lenker 96. Pakistan had considerable trade with Gulf States, mainly Abu Dhabi, Iran, Iraq, 
Kuwait, Saudi Arabia and the UAE. Its migrant workers labored in many of these countries; there were small 
Pakistani military contingents in many of them. See generally Craig Baxter, Pakistan and the Gulf, in Naff, Gulf 
Security ch. 5. Turkey had been leaning toward Iraq. See nn. 112, 122, 182 and accompanying text. 

224. Notice to Airmen and Mariners for Persian Gulf, Strait of Hormuz, Gulf of Oman and Northern Arabian Sea, 
Jan. 22, 1984, in de Guttry & Ronzitti 137 and Marian Leich, United States Defense Measures in the Persian Gulf Area, 
78 AJIL 884 (1984); see also Menefee, Commentary, n. 74, 103. The US warnings were published within days after its 
report on the US Marine headquarters bombing at Beirut International Airport in 1983, accomplished by a 
gas-enhanced explosive device carried in a light truck and Iranian complicity in the attack. The concern was that boats 
or aircraft would try similar suicide runs on US warships. Chubin & Tripp 209; Roach, Missiles on Target: Targeting, n. 
90, 609. 

225. See Stanley F. Gilchrist, The Cordon Samtaire — Is It Useful? Is It Practical?, 35 NWC Rev. 60 (May-June 1982). 

226. Momtaz, n. 89, 33-34; see also Iran note to US State Department, Mar. 15, 1989, UN Doc. S/20525 (1989) in de 
Guttry & Ronzitti 41. 

227. US State Department message to Iran, July 12, 1984, in 78 AJIL 884 (1984); see also David K. L'mnan, Iran Air 
Plight 6S5 and Beyond: Free Passage, Mistaken Self-Defense and State Responsibility, 16 Yale Int'L L.J. 245, 248 (1991). 

228. Chubin & Tripp 209. 



The War, 1980-88 91 



229. UK ROE never have been and likely never will be published. Lowe, Commentary, n. 77, 249. 

230. Tousi, n. 1.30, 53. 

231. Thomas L. McNaugher, Walking Tightropes in the Gulf, in Karsh 171, 188. 

232. 30 Keesing 33057 (1984); see a/so Gioia, Commentary, n. 7, 73; nn. 88-90, 103, 109-10 and accompanying text. 

233. During 1984 Iran mounted more offensives into Iraqi territory, trying unsuccessfully to cut the 
Baghdad-Basra highway. The war's cost in material and people spiraled upward. Iraq continued a capital intensive 
war; Iran used its supply of manpower to keep costs down. Hiro 102-13. 

234. UK Foreign and Commonwealth Affairs Secretary of State statement, Mar. 8, 1984, 55 Pari. Deb., H.C. (6th 
ser.) 994 (1984); Navis & Hooten 74; Lowe, Commentary, n. 77, 251. 

235. Momtaz, n. 89, 29. 

236. Gioia, Commentary, n. 7, 62; see also nn. 89, 91-92, 100-02 and accompanying text. 

237. Hiro 132-33; Fenrick, Military Objectives, n. 202, 20. 

238. Karsh, n. 108, 37. 

239. Iraqi bombing also forced Iran to import refined oil products, thereby worsening Iranian balances of 
payments. Gioia, Commentary, n. 7, 62; Kanovsky, n. 72, 242-43. 

240. Fenrick, Military Obectives, n. 201, 20; see also Hiro 145; Gioia, Commentary, n. 7, 61-62. 

241 . The Gulf States did not offer bases to the United States at this time, however. Chubin & Tripp 209; Menefee, 
Commentary, n. 74, 104, citing David Evans & Richard Campany, Iran-Iraq: Bloody Tomorrows, 111 Proceedings 38 
(Jan. 1985); Ralph Danziger, The Persian Gulf Tanker War, id. 160, 163 (May 1985); Lotfian, n. 38, 20; President 
Reagan, Interview with Television Correspondents Representing Nations Attending the London Economic Summit, May 31, 
1984, 1 Public Papers: Reagan 1984, at 772 (1986). 

242. Hiro 122-23; Tousi, n. 1.30, 53. 

243. Sajjadpour, n. 54, 32-34. The Soviet Union also reacted to Tudeh Party purges in Iran and expulsion of Soviet 
diplomats accused of complicity with the Party, which was the Iranian communist party. Chubin & Tripp 222; Katz, n. 
138, 142; Litwak,n. 138,206. 

244. Hiro 123-27. 

245. Lotfian, n. 38, 20. 

246. See nn. 112, 126 and accompanying text. 

247. Hiro 127-28. 

248. The GCC had tried to mediate in the war in March without success. At the Arab League meeting, boycotted by 
Libya and Syria, the GCC supported a League call to States to stop selling arms and spares to Iran. Id. 115; Venturini, 
Commentary, n. 95, 530. 

249. Litwak, n. 138, 205-06; Sajjadpour, n. 54, 34-35; see also n. 243 and accompanying text. 

250. Hooglund, n. 82, 47. 

251. Bahraini, Kuwaiti, Omani, Qatari, Saudi & UAE UN Permanent Representatives' letter to UN Security 
Council President, May 21, 1984, UN Doc. S/16574 (1984), in de Guttry & Ronzitti 536; see also Venturini, 
Commentary, n. 95, 514; Introductory Note, Wellens 473. The United States supported the GCC. US UN Deputy 
Permanent Representative statement before UN Security Council, May 30, 1984, 80 Bulletin 73 (Aug. 1984). 

252. Momtaz, n. 89, 29, citing Iran UN Permanent Representative letter to UN Secretary-General, May 25, 1984, 
UN Doc. S/16585 (1984), in de Guttry & Ronzitti 43. 

253. Momtaz, n. 89, 29-30. 

254. Id.ll. 

255. Venturini, Commentary, n. 95, 524-26, citing UN Doc. S/16586 (1984) (Norway); id. S/PV 2541, at 5, 18 (1984); 
id. S/PV 2543, at 6, 26, 3 1 (1984) (Bahrain, Kuwait, Oman, Saudi Arabia, UAE); id. S/PV 2541 , at 26 (Yemen); id. S/PV 
2542,at 3,6, 10, 16(1984),t</. S/PV2543, at 9, 12,22, id. S/PV 2546, at 7, 17, 22,37 (1984) (Ecuador, FRG, India, Jordan, 
Liberia, Morocco, Pakistan, Somalia, Sudan); id. S/PV 2542, at 26 (Panama); id. S/PV 2546, at 1 3 (Netherlands); id. at 
28 (USSR); 38 Y.B.U.N. 229 (1984). 



92 The Tanker War 



256. Venturini, Commentary, n. 95, 530, citing UN Docs. S/PV 2541, at 7, 42 (1984); S/PV 2663, at 6, 14 (1984). 

257. See generally nn. 125-40, 437-45 and accompanying text. For the importance of flags of convenience, or open 
registry, see n. 60 and accompanying text; Parts IV. C. 3, IV. C. 6, IV.D.5, V.D.2, V.D.4, V.J. 4. 

258. S.C. Res. 552 (1984), in Wellens 473. (italics in original) 

259. Venturini, Commentary, n. 95, 531. 

260. Statement by the Group of Seven, 84 Bulletin 5 (Aug. 1984); see also Venturini, Commentary, n. 95, 533. 

261. Hiro 131, 153-54; Lotfian, n. 38, 19. 

262. L.F.E. Goldie, Targeting Enemy Merchant Shipping: An Overview of Law and Practice, in Grunawalt 1,17. 

263. Hooglund,n. 82,47-48. 

264. Melia, n.6, 119; 31 Keesing 33371-73 (1985); Scott C.Truver, Mines of August: An International Whodunit, 111 
Proceedings 94 (May 1985); The Gulf of Suez Mining Crisis: Terrorism at Sea, id. 10 (Aug. 1985). Convention Repecting 
Free Navigation of the Suez Canal, Oct. 29, 1888, arts. 1-7, 171 CTS 241, 243-44, in Moore 264-65, the Convention of 
Constantinople established rights governing Suez Canal operations. 

265. Introductory Note, n. 86, 444. 

266. Hiro 130. 

267. The mine-hunters were not delivered during the war; Kuwait did not pursue purchase. Kalshoven, 
Commentary, n. 84, 483-85. 

268. Export of Goods (Control) (Amendment No. 2) Order 1985, Aug. 12, 1985, in de Guttry & Ronzitti 257. 

269. UN Secretary-General, Report in Pursuance of Security Council Resolution 552, Dec. 31, 1984, UN Doc. S/16877 
(1984), in de Guttry & Ronzitti 538; see also Venturini, Commentary, n. 95, 529, noting periodic addenda, January 22, 
1985 -December 31, 1987. 

270. Hiro 134-36; Taheri Shemirani, The War of the Cities, in Rajaee, Iran-Iraq War 32-40. The United States 
pressed Iraq not to make unrestricted air attacks on Iran's economic infrastructure during the War of the Cities. 
Chubin & Tripp 210. 

271. Naghibzadeh, n. 18, <tt;see also nn. 112, 126, 244 and accompanying text. 

272. Hiro 143; Menefee, Commentary, n. 74, 104-05. 

273. T.M. Orford, The Iran-Iraq Conflict: Recent Developments in the Law oh Naval Engagements 60 
(1988); see also Danzinger, n. 241; Menefee, Commentary, n. 74, 105. 

274. Momtaz, n. 89, 25, citing inter alia T.S. Schiller, The Gulf War and Shipping: Recent Developments, in B.A.H. 
Parritt, Violence at Sea 114 (2d ed. 1986). 

275. See nn. 144, 422-23 and accompanying text. 

276. Momtaz, n. 89, 25. 

277. Iran realized that Iraq's strategy was to push Iran into extreme reactions, e.g., closing the Strait; Iran tried to 
keep its responses to the lowest level and to alleviate international fears of possible closure of the Strait. Karsh, n. 108, 
37. 

278. Ken Booth, Law, Force and Diplomacy at Sea 178 (1985); L.F.E. Goldie, Low Intensity Conflict at Sea, 14 
Syracuse J. Intl L. & Comm. 597, 625-26 (1988); Momtaz, n. 89, 24. 

279. See nn. 95, 112, 114, 122, 181-82, 223, 313 and accompanying text. 

280. Hiro 145. 

281. Id. 146-47. 

282. These were at least in part replenished through the Iran-Contra deal. Chubin & Tripp 211-14; see also nn. 12, 
317 and accompanying text. 

283. Hiro 158. 

284. Lotfian, n. 38,21. 

285. Amazia Baram, Iraq: Between East and West, in Karsh 78, 80-81; Lotfian, n. 38, 158-63. 

286. Hunter, n. 13, 178; Lenker, n. 183, 97; Lotfian, n. 38, 163-66. 



The War, 1980-88 93 



287. Litwak, n. 138,206-07. 

288. US Defense Mapping Agency Hydrographic/Typographic Center, National Ocean Service & US Coast 
Guard, Special Warning No. 67, in Notices to Mariners (No. 1, 1980). 

289. Menefee, Commentary, n. 74, citing US Undersecretary of State for Political Affairs Michael M. Armacost, Jr., 
"Our Bilateral Relationship with Saudi Arabia is the Keystone of Our Strategic Interests in the Gulf," statement to 
Subcommittee of US Senate Appropriations Committee, June 5, 1984, American Foreign Policy Current Documents, 
1984, at 512, 513; Reagan, n. 241, 772.). 

290. Menefee, Commentary, n. 74, 105, citing US Secretary of State George Shultz, Progress and Stability in the Gulf 
Oct. 1, 1985, American Foreign Policy Current Documents, 1985, at 543 (1986). 

291. Hiro 154-55. 

292. Id. 155-56. 

293. Lotfian, n. 38, at 20. 

294. Hiro 156-57. 

295. Frank L. Wiswall, Jr., Neutrality, the Rights of Shipping and the Use of Force in the Persian Gulf, 31 VJIL 619, 623 
(1991). 

296. OFORD,n. 273, 61. 

297. Principal Presidential Deputy Press Secretary Larry M. Speakes, Statement on Iran 's Search of the United States 
Merchant Ship President Taylor, Jan. 13, 1986, 1 Public Papers: Reagan 1986, at 39 (1988); see also Menefee, Commentary, 
n. 74, 105. 

298. 90 Pari. Deb., H.C. (6th ser.) 426 (1986) (Response of Secretary of State for Foreign & Commonwealth Affairs). 
Iran's intercepting Barber Perseus, a UK flag merchantman was the precipitating event. Panel, n. 84, 158-59 
(Greenwood remarks). 

299. Frits Kalshoven, Commentary, in Law of Naval Warfare 272, 274. 

300. S.C. Res. 582 (1986), in Wellens 452-54. Resolution 582 debates were less sharp in condemning destruction of 
navigation than that preceding adoption of Resolution 552, n. 258. Venturini, Commentary, n. 95, 526. 

301. Gioia, Commentary, n. 7, 73. 

302. Diego Garcia Agreement, n. 77; see also n. 77 and accompanying text. 

303. Principal Presidential Deputy Press Secretary Larry M. Speakes, Statement on Attacks on Shipping in the Gulf, 
May 12, 1986, 1 Public Papers: Reagan 1986, at 586 (1988); see also Menefee, Commentary, n. 74, 105. 

304. Oford, n. 273, 61; Menefee, Commentary, n. 74, 105. 

305. US Defense Mapping Agency Hydrographies/Topographic Center, National Ocean Service & US Coast 
Guard, Automated Notice to Mariners III-9 (No. 39, 1986), in de Guttry & RoNzrrn 139; see also Menefee, 
Commentary, n. 74, 105-06. 

306. 2 Cordesman & Wagner 229-30; Norman Cigar, The Soviet Navy in the Persian Gulf: Naval Diplomacy in a 
Combat Zone, 42 NWC Rev. 56 (No. 2, 1989). There is speculation that Saudi Arabia allowed refuelling of Iraqi aircraft 
involved in these attacks at Saudi bases or that there was in-flight refuelling. Hiro 173-74. 

307. Momtaz, n. 89, 24. 

308. S.C. Res. 588 (1986), in Wellens 453. 

309. Maybe it was a mistake; Iraq also hit Iran's Sirri oil terminal. See 2 Cordesman & Wagner 236-37; Fenrick, 
Military Objectives, n. 202, 20. 

310. Kanovsky, n. 72, 242-43. 

311. Federal Aviation Administration, US Department of Transportation, International Notices to Airmen 2 
(Nov. 20, 1986). 

312. Lowe, Commentary, n. 77, 247. 

313. Hiro 178-79, 230-32.. 

314. Iran-Kuwait relations remained tense. Id. 215, 227. 



94 The Tanker War 



315. The growing Iran-USSR relationship was disturbing to Iraq. Chubin & Tripp 197, 223-25; Sajjadpour, n. 54, 
35-36. USSR-GCC country relations began to expand in the Gorbachev era. Oman and the UAE established 
diplomatic relations in 1985 with the Soviet Union, and Qatar did so in 1988. Chubin & Tripp 235; Katz, n. 138, 142. 

316. Chubin & Tripp 192. 

317. Hiro 215-22; see also Tousi, n. 1.30, 54-55. The United States was not the only country touched by an arms 
sales scandal. There were revelations in France, the FRG, Italy, the Netherlands, Portugal, Spain and Sweden. The 
United Kingdom was the only country not affected by these kinds of revelations, primarily because its companies' 
sales were directed toward the Gulf States, particularly Saudi Arabia. Britain was given the twin political advantage of 
an honest claim of neutrality while contributing positively to the confidence, stability and strength of the small States 
with whom she had long established links. Chipman,n. 49,220; Naghibzadeh, n. 18,45; nn. 42-44 and accompanying 
text. The Iran-Contra scandal was a factor in the US decision to reflag Kuwaiti tankers to demonstrate sincerity of US 
friendship and loyalty to Kuwait. Hooglund, n. 82, 49. See also nn. 12, 282, 326, 333 and accompanying text. 

318. Another delivered arms and ammunition to Iran in October 1986. Hiro 220. 

319. Id. 230; Naghibzadeh, n. 18, 45. 

320. Naghibzadeh, n. 18,45-46. 

321. Hiro 222-23. 

322. These were part of a $1 .5 billion order for six corvettes, four frigates and a support ship placed in 1980. Id. 223. 
See also n. 130 and accompanying text. 

323. Chubin & Tripp 214; Hooglund, n. 82, 48-49. 

324. Les Aspin, US House Armed Services Committee Chair. Chubin & Tripp 215. 

325. Roach & Smith 312, quoting in part US Diplomatic Note to Algeria Embassy, Aug. 17, 1987. 

326. 2 Cordesman & Wagner 271-81; Cigar, n. 306, 59, 63. Another reason for reflagging appears to have been a US 
desire to prevent Soviet influence spreading in the Gulf. Menefee, Commentary, n. 74, 107, 121-22, citing inter alia US 
Assistant Secretary of State for Near Eastern & South Asian Affairs Richard W. Murphy statement before US House 
Foreign Affairs Committee, Subcommittee on Europe & the Middle East, May 19, 1987, 87 Bulletin 59, (July 1987). 
Kuwait had approached the United States in late 1986 about changing registries. See also Hiro 186, 223-24; 
Weinberger, Report, n. 52, 1434 ; Elizabeth Gamlen & Paul Rogers, U.S. Reflagging of Kuwaiti Tankers, in Rajaee, 
Iran-Iraq War 123-51; W.L. McDonald, The Convoy Mission, 1 14 Proceedings 36 (May 1988); McNaugher, Walking, 
n. 231, 172-76; Menefee 121. Naval protection was also part of the reflagging negotiations. Id. 122. McNaugher, U.S. 
Policy, n. 78, 114, says reflagging seems to have had less to do with guilt over Iran-Contra nn. 12, 282, 317 and 
accompanying text, or fear of Soviet intrusion than "with the prevailing assumption that extending U.S. naval 
protection to a few more tankers would differ little from 'business as usual' in the Gulf." The USSR rationale for 
helping Kuwait may have had a "showing the flag" component, but the charters also helped earn hard currency. Cf. 
Whitehurst, US Merchant Marine, n. 59, 233-40. 

327. Litwak, n. 138, 208. 

328. David D.Czron, Choice an d Duty in Foreign Affairs: The Reflagging of the Kuwaiti Tankers, in Joyner 153, 157-58. 

329. Gamlen & Rogers, n. 326, 128. 

330. Katz, n. 138, 143. 

331. Litwak, n. 138,209. 

332. Weinberger, Report, n. 52, 1448, 1450-52, 1458 1461-63; Caron, n. 328, 161-66; Scott Davidson, United States 
Protection ofReflagged Kuwaiti Vessels in the Gulf War: The Legal Implications, 4 Int'l J. Estuarine & Coastal Law 387 
(1989); Myron H. Nordquist & Margaret G. Wachenfeld, Legal Aspects of Reflagging Kuwaiti Tankers and Laying Mines 
in the Persian Gulf, 31 Ger. Y.B. Int'L L. 138 (1988); Peace, Major Maritime Events, n. 90, 553-54; Rudiger Wolfrum, 
Reflagging and Escort Operations in the Persian Gulf: An International Law Perspective, 20 VJIL 387 (1989); Julie Mertus, 
Comment, The Nationality of Ships and International Responsibility: The Reflagging of the Kuwaiti Oil Tankers, 17 Denv.J. 
Int'L L. & Pol-y 207 (1988); Tod A. Phillipps, Exchanging Excuses for Use of Force — The Tug of War in the Gulf, 10 
Houston J. Intl L. 275 (1988); Wachenfeld, Comment, Reflagging Kuwaiti Tankers: A U.S. Response in the Persian 
Gulf, 1988 Duke L.J. 174, 202; Assistant Secretary of State Richard William Murphy statement, May 19, 1987, 87 
Bulletin 58-60 (1987). US Undersecretary of State for Political Affairs Michael H. Armacost statement to US Senate 
Foreign Relations Committee, June 16, 1987, 26 ILM 1429, 1431 (1987) said Kuwait had already reflagged two tankers 
under the UK ensign. In fact there were many more. Second Report, Ml 6.14-6.15, reporting that at one time 50 to 60 
Norwegian ships might have switched to the UK flag; see also Lowe, Commentary, n. 74, 25 1 . Some in the United States 



The War, 1980-88 95 



opposed the transfer. See generally Gamlen & Rogers, n. 326, 133-35. For a view from inside the State Departments^ 
George P. Shultz, Turmoil and Triumph: My Years as Secretary oh State 925-30 (1993). 

333. Hiro 188. 

334. Id. 186-88, 226; Second Report 11 6.6. Although the USSR protested strongly, the Soviet media tended to 
minimize these attacks. Katz, n. 138, 143-44; Litwak, n. 138, 209. 

335. Belgian Defence Minister statement before Joint Foreign Relations & National Defense Committee of 
Belgian Chamber of Representatives, Sept. 17, 1987, Chambre des Representants, Compte rendue analitique, Sess. 
ordinaire 1986-1987, reunion publique de Commission, Sept. 17, 1987, at 1 122, in de Guttry & Ronzitti 508, 509; 
Melia, n. 6, 120. 

336. Hiro 187; Melia, n. 6, 120. 

337. Litwak, n. 138, 209. 

338. See generally US Secretary of State George P. Schultz statement, May 20, 1987, 87 Bulletin 62-63 (July 1987); 
US Assistant Secretary of State for Near Eastern & South Asian Affairs statement before House Foreign Affairs 
Committee, Subcommittee on Europe & the Middle East, May 19, 1987, id. 59; 2 Cordesman & Wagner 289-90, 
549-58; Fenrick, Military Objectives, n. 202, 20; Marian Nash Leich, Contemporary Practice of the United States Relating to 
International Law, 83 AJIL 558 (1989); Menefee, Commentary, n. 74, 106, 123-25; William H. Nelson, Peacekeepers at 
Risk, 115 Proceedings 90 Quly 1987); Michael Vlahos, The Stark Report, 114 Proceedings 64 (May 1988); Iran-Iraq 
War and Navigation in the Gulf, 26ILM 1422-31 (1987). See Joseph F. Bouchard, Accidents and Crises: Panay, Liberty and 
Stark, 41 NWC Rev. 87 (No. 4, 1988), for a comparative study. 

339. Agreement Concerning Claims Resulting from Attack on U.S.S. Stark, Mar. 27-28, 1989, Iraq-US, T.I.A.S. 
12030, 26 ILM 1427 (1987), 28 id. 644 (1989). Iraq first tried to blame Iran for the attack. Two days after the tragedy 
Iraqi President Hussein and Iraqi Foreign Minister Tariq Aziz expressed "deep sorrow" and apologized, expressing 
hope the incident would not affect cordial Iraq-US relations. There was some reason for the United States to regard the 
attack as a deliberate reprisal, coming only months after the Iran-Contra revelations. Chubin & Tripp 197; Baram, n. 
285, 86; see also nn. 12, 282, 317, 326 and accompanying text. 

340. Assistant to the President for Press Relations Marlin Fitzwater, Statement, May 18, 1987, 1 Public Papers: 
Reagan 1987, at 525 (1989); McNaugher, U.S. Policy, n. 78, 114-15. 

341. Weinberger, Report, n. 52, 1454-55, 1459-60, 1463. O'Connell, Influence of Law 169-80; James C. Duncan, 
The Commander's Role in Developing Rules of Engagement, 52 NWC Rev. 76 (No. 3, 1999); Richard J. Grunawalt, The 
JCS Standing Rules of Engagement: A Judge Advocate's Primer , 42 Air Force L. Rev. 245 (1997); J. Ashley Roach, Rules of 
Engagement, 36 NWC Rev. 46 (No. 1, 1983), 14 Syracuse J. Int-l L. & Comm. 865 (1988); Ivan A. Shearer, Rules of 
Engagement and the Implementation of the Law of Naval Warfare, id. 161 analyze ROE from an international law 
perspective. See also Bradd C. Hayes, Naval Rules of Engagement: Management Tools for Crisis ( 1 989). After the 
Stark incident and US ROE revision, Pentagon debate raged as to how strict ROE should be, i.e., how much leeway 
on-scene commanders should be given. Johnson, n. 79, 136. 

342. The United Kingdom and France held the view that Iran and Iraq were involved in a conflict, not a war, and 
that the Charter governed their actions. See n. 84 and accompanying text. 

343. Panel, n. 84, 159-61 (Greenwood remarks), quoting and referring to UK Foreign & Commonwealth Office & 
Ministry of Defence, Joint Memorandum in Reply to Questions Put by Defence Committee, in Defence Committee, Third 
Special Report 1986-1987: The Protection of British Merchant Shipping in the Persian Gulf (March 1987), H.C. 409 
(1987), reprinted in part in de Guttry & Ronzitti 270-73; see also Second Report 11 6.19. UK ROE have not been 
published. See n. 229 and accompanying text. 

344. E.g., Second Report 11 6.22 (Omani ROE "very restrictive," limiting risk of exchange of fire with Iranian 
forces); de Guttry, Commentary, n. 84, 424-32, 438-39, citing inter alia Italian Defence Minister statement before IV 
Permanent Commission (Defence), Sept. 24, 1987, Boll. Commissioni, X Legislatura, IV Commissione Permanente 
(Difesa) (Sept. 4, 1987), at 4, in de Guttry & Ronzitti 453, 455 (Italian forces would respond to "hostile action against 
our military or merchant ships, if necessary taking such action before the hostile act . . . has taken place;" ROE 
classified); Kalshoven, Commentary, n. 84, 489 (Netherlands ROE reflective of Dutch strict neutrality position but 
unpublished); Mallein, n. 84, 401-02, discussing French Armed Forces Information & Political Relations Service, 
Press Release 11 4 Quly 22, 1987), in de Guttry & Ronzitti 413, 414 (ROE not revealed, but govern procedure "in the 
case of threat or of attack"). 

345. US Defense Mapping Agency Hydrographic/Topographic Center, National Ocean Service & US Coast 
Guard, Revised Notice to Airmen/ Notice to Mariners for the Persian Gulf Area (July 1987), in de Guttry & Ronzitti 
140. 



96 The Tanker War 



346. US Defense Mapping Agency Hydrographies/Topographic Center, National Ocean Service & US Coast 
Guard, Notice to Mariners III-1.12 (No. 39, Sept. 1987), in id. 141. 

347. Compare id. with Notice to Mariners III-9, n. 305. See also U.S. Navy Procedure for Communicating with 
Unidentified Aircraft (1988), in 28 ILM 942 (1989); Peace, in Panel, n. 84, 149-50; Peace, Major Maritime Events, n. 90, 
552; Roach, Missiles on Target: Targeting, n. 90, 610; Weinberger, Report, n. 52, 1454-55, 1459-60, 1463. 

348. Menefee, Commentary, n. 74, 107, citing Secretary of State Shultz, Extent of the U.S. Role in the Gulf, May 28, 
1987, American Foreign Policy Current Documents 1987, at 426 (1988); see also Linnan, Iran Air, n. 227, at 249-50; W. 
Hays Parks, Righting the Rules of Engagement, 1 14 Proceedings 83 (May 1988); Peace, Major Maritime Events, n. 90, 552; 
Roach, Missiles on Target: Targeting, n. 90, 610; Weinberger, Report, n. 52, 1454-55, 1459-60, 1463. 

349. Shultz, n. 332, 931, quoting a British Broadcasting Company report; see also n. 247 and accompanying text. 

350. The USSR had offered naval protection, but the United States agreed to convoy during reflagging 
negotiations. Menefee, Commentary, n. 74, 121-22. 

351. McNaugher, Walking, n. 231, 173-74. 

352. Chubin & Tripp 215. 

353. US Assistant Secretary of State for Near Eastern & South Asian Affairs statement, n. 338, 87 Bulletin at 59; US 
Undersecretary of State for Political Affairs statement before Senate Foreign Relations Committee, June 16, 1987, id. 
78 (Aug. 1987); Menefee, Commentary, n. 74, 123. 

354. 2 Cordesman & Wagner 290-92, 298-300; Melia, n. 6, 120; Navis & Hooten 1 36; Walter Isaacson, Into Rough 
Water, Time, Aug. 10, 1987, at 8; John H. McNeill, Neutral Rights and Maritime Sanctions: The Effects of Two Wars, 31 
VJIL 631, 635, 638 (1991); Menefee, Commentary, n. 74, 126-27; Ronald O'Rourke, The Tanker War, 1 14 Proceedings 
33 (May 1988); Peace, in Panel, n. 84, 149; Peace, Major Maritime Events, n. 90, 554; Frank C. Seitz, ]x.,SS Bndgeton: 
The First Convoy, 114 Proceedings 52 (May 1988); 2 vonHeinegg 104; W olf rum, Reflagging n. 332,397-98. Chubin & 
Tripp 215 err in christening S.S. Bndgeton as U.S.S. Bndgeton, i.e., as a commissioned US Navy warship. Bndgeton was 
a merchant tanker. 

355. Melia, n. 6, 121. 

356. Hiro 187. 

357. NWP 1-14M Annotated, 11 9.2.3 n. 26; McNaugher, U.S. Policy, n. 78, 116; McNaugher, Walking, n. 231, 180. 
Iran said Bndgeton's mining was due to "invisible hands." Chubin & Tripp 217. 

358. NWP 1-14M Annotated, 11 7.1 1, n. 169. 

359. Second Report HH 6.11-6.14; Lowe, Commentary, n. 77, 248. 

360. Italian Merchant Navy Minister statement before IX Permanent Commission (Transport, Posts and 
Telecommunications), Sept. 10, 1987, Boll. Commissioni, X Legislatura, IX Commissione Permanente 4 (Sept. 10, 
1987), in de Guttry & Ronzitti 446-47. 

361. Mallein, n. 84, 391, citing written answer by French Secretary of State for Maritime Affairs, Question 36188, 
J.O., Mar. 21, 1988, p. 1301, in de Guttry & Ronzith 408; see also written answer by French Defense Minister, 
Question 29022, J.O., Sept. 14, 1987, at 5148. 

362. 2 Cordesman & Wagner 234; Cigar, n. 306, 56. 

363. 33 Keesing 35160, 35597 (1987). 

364. Hiro 1 87. The media had reported that 20,000 Revolutionary Guards had been training to attack US ships. See 
n. 349 and accompanying text. 

365. Shultz, n. 332, 933-34. 

366. 32 Keesing 34514 (1986). 

367. Menefee, Commentary, n. 74, 127; O'Rourke, n. 354, 33. 

368. US intelligence tracked Iran Ajr from its Iranian port to the high seas near Qatar. A US frigate-based 
helicopter with night vision capability cameras detected minelaying activity and saw six mines laid. The helicopter 
fired on the ship. At daybreak the U.S.S. Jarrett boarded Iran Ajr and captured the vessel and crew. President Reagan 
letter to US Speaker of the House Jim Wright, Sept. 24, 1987, 23 Weekly Comp. Pres. Doc.1066-67 (1987); US UN 
Permanent Representative letter to UN Security Council, Sept. 22, 1987, UN Doc. S/19149 (1987), in de Guttry & 
Ronzitti 220; see also Cable 2 10; 2 Cordesman & Wagner 3 1 8- 1 9; Hiro 1 89; Melia, n. 6, 1 26; Menefee, Commentary, n. 



The War, 1980-88 97 



74, 127; O'Rourke, n. 354, 33. Britain supported the US position. Answer by UK Minister of State, Foreign & 
Commonwealth Office, Nov. 25, 1987, 490 Pari. Deb., H.L. (6th ser.) 724-25 (1987); Second Report H 6.24; Lowe, 
Commentary, n. 77, 252. 

369. NWP 1-14M Annotated 11 7.11 n. 168; Gamlen & Rogers, n. 326, 140; McNaugher, U.S. Policy, n. 78, 116; see 
also n. 358 and accompanying text. 

370. See Momtaz, n. 89, 32, citing Iran Foreign Affairs Minister letter to UN Secretary-General, Sept. 29, 1987, UN 
Doc. S/19161 (1987), in de Guttry & Ronzitti 44. Iran President Ayatollah Khomeni was shocked by the US attack; 
he denied the ship had been laying mines. Shultz, n. 332, 934. 

371. Chubin & Tripp 217. 

372. Melia, n. 6, 126. 

373. Weinberger, The Permanence, n. 172, 4; see also Table 9.7, Targets in the Tanker War as of October 12, 1987, in 2 
Cordesman & Wagner 327-28. As of June 1988, the 1988 figures were 32 ships attacked by Iraq, and 35 by Iran. Second 
Report 11 6.1. 

374. Hiro 226; Cigar, n. 306, 64; Hayes, Chronology 1987, n. 2, 655-60; Litwak, n. 138, 209. 

375. Vienna Economic Summit, n. 84, 4. See also Menefee, Commentary, n. 74, 108; Venturini, Commentary, n. 95, 
533; Weinberger, Report, n. 52, 1449-50. 

376. S.C. Res. 598 (1987), in Wellens 454. The UN Secretary-General had called for a new approach in a January 
1987 press conference, and for Security Council permanent members to make a special concerted effort to end the war. 
Beginning in February the United States took the lead in fashioning the resolution. Caron, n. 328, 193-95; Hooglund, 
n. 82, 50; McNaugher, U.S. Policy, n. 78, 118-20; McNaugher, Walking, n. 231, 176-78. 

377. Introductory Note, n. 31, 445. 

378. Statement by Member States of the European Community, Sept. 3, 1987, 3 Eur. Pol. Co-op. Bull. 93 (No. 2), in 
de Guttry & Ronzitti 554. 

379. Iraq became a Convention party June 30, 1985; the treaty did not go into effect until after the war. LOS 
Convention, 1833 UNTS 397; n. IV. 3. Presumably Iraq claimed under customary law. See n. IV. 3 and accompanying 
text. 

380. Neither belligerent was a Convention party. TIF 391 . Presumably Iraq claimed under customary law. See also 
Parts IV.B.4, IV.D.3. 

381. Iraq UN Permanent Representative note verbale to UN Secretary-General, Aug. 7, 1987, UN Doc. S/19025 
(1987), in de GuTrRY & Ronzitti 93, 94; see also nn. 51, 81, 119, 163 concerning Iran's seizure of Gulf islands. 

382. US Assistant Secretary of State for Near Eastern and South Asian Affairs Murphy, Search for Peace in the 
Persian Gulf, July, 1987, American Foreign Policy Current Documents 1987, at 442 (1988), reprinting in part 
Developments in the Middle East, July 1 987: Hearing and Markup Before the Subcommittee on Europe and the Middle East of 
the Committee on Foreign Affairs, H. R., 100th Cong., 1st Sess. 5-9 (1987); Menefee, Commentary, n. 74, 120. 

383. Cable 210. 

384. In late July Britain refused to aid US minesweeping; it reversed this policy August 11, 1987. UK ships had 
swept the Red Sea in 1984. Second Report 11 6.7; Lowe, Commentary, n. 77, 247. During the summer of 1984, mines 
detonated in the Gulf of Suez and the Strait of Bab el Mandeb, damaging several ships. Although Iran and Libya were 
accused of minelaying, Iran denied the charges; it is thought the Libyan cargo ship Ghat laid them. Egypt exercised its 
Treaty of Constantinople, n. 264, right to inspect shipping. A half dozen navies cooperated in locating and destroying 
mines. 31 Keesing 33371-73 (1985). 

385. The precipitating event for Italy was the September 3 Iranian gunboat attack on an Italian merchant ship, 
Jolly Rubino. de Guttry, n. 84, 420. 

386. See generally Netherlands Defence Minister & Foreign Affairs Minister letter to President of Second Chamber 
of Netherlands States-General, June 24, 1988, Tweede Kamer der Staten-Generaal, Vergaderjaar 1987-1988, 20075 
No. 19, in de Gu rrRY & Ronzitti 504; Netherlands Defence Minister & Foreign Affairs Minister letter to President of 
Second Chamber of Netherlands States-General, Oct. 16, 1987, Tweede Kamer der Staten-General, Vergadderjaar 
1986-1987, at 20075 No. 5, in id. 497; Belgian National Defence Minister statement before Joint Foreign Relations & 
National Defence Committee of Belgian Chamber of Representatives, Sept. 17, 1987, Chambre des Representants, 
Compte rendue analitique, Sess. ordinaire 1986-1987, Reunion publique de Commission of Sept. 17, 1987, at 1 122, in 
id. 508; Kalshoven, Commentary, n. 84, 476-77. 



98 The Tanker War 



387. 2 Cordesman & Wagner 300, 304, 313-14; Hayes, n. 2, at 655-60. 

388. Kalshoven, Commentary, n. 84, 478; Venturini, Commentary, n. 95, 532. Treaty of Economic, Social & Cultural 
Collaboration & Collective Self-Defence, Mar. 17, 1948, 19 UNTS 51 (WEU Treaty) formed the WEU. Its 1954 
protocols subordinated military matters to NATO. See also nn. 437, III. 819. 

389. Chipman, n. 49, 224. 

390. Hooglund, n. 82, 50. 

391. President Reagan letter to Speaker of the House Wright & President of the Senate, Oct. 20, 1987, 23 Weekly 
Comp. Pres. Doc. 1206 (1987); US UN Permanent Representative letter to UN Security Council, Oct. 9, 1987, UN 
Doc. S/19194 (1987), in de Guttry & Ronzitti 221; Chubin & Tripp 217-18; 2 Cordesman & Wagner 328-31; Hiro 
190; McNeill, Neutral Rights, n. 354, 638-39; Menefee, Commentary, n. 74, 109, 127-28; N.Y. Times, Oct. 20, 1987, at 
A10; Peace, in Panel, n. 84, 152; Peace, Major Maritime Events, n. 90, 557-58. 

392. NWP 1-14M Annotated 11 7.11, n. 168; see also nn. 358, 369 and accompanying text. 

393. Chubin & Tripp 218; 2 Cordesman & Wagner 328-31; Hiro 190-91; Gamlen & Rogers, n. 326, 140; 
McNaugher, U.S. Policy, n. 78, 116; McNaugher, Walking, n. 231, 184; N.Y. Times, Oct. 20, 1987, at A10; see also 
President Reagan Statement on the United States Reprisal Against Iran, Oct. 19, 1987, 2 Public Papers: Reagan 1987, at 
1201 (1989); Secretary of Defense Weinberger statement, Oct. 19, 1987, id. 1201; US UN Permanent Representative 
letter to UN Security Council, Oct. 19, 1987, UN Doc. S/192 19 ( 1987), in de Guttry & Ronzitti 221 ; President Reagan 
letter to Speaker of the House Wright, Oct. 20, 1987,23 Weekly Comp. Pres. Doc. (1987); McNeill, Neutral Rights, n. 
354, 638-39; Menefee, Commentary, n. 74, 109, 128; Peace, Major Maritime Events, n. 90, 557-58. 

394. Wiswall, Neutrality, n. 295, 622. 

395. See Momtaz, n. 89, 32, citing Iran Foreign Affairs Minister letter to UN Secretary-General, Oct. 9, 1987, UN 
Doc. S/19192 (1987); Iran Foreign Affairs Minister letter to UN Secretary-General, Oct. 21, 1987, UN Doc. S/19224 
(1987), in de Guttry & Ronzitti 46-47. In 1992 Iran sued the United States in the ICJ for destroying these platforms 
and others destroyed in a similar April 18, 1988 response; the Court upheld jurisdiction under Treaty of Amity, 
Economic Relations & Consular Rights, Aug. 15, 1955, 8 UST 899, 284 UNTS 93 (FNC Treaty). Oil Platforms (Iran v. 
US), 1996 ICJ 803, 820 (Prelim. Objections) (Oil Platforms Case). See also Bernard H. Oxman, International Decisions, 
91 AJIL 518 (1997); nn. 111.454-57 and accompanying text. 

396. Menefee, Commentary, n. 74, 109, citing Executive Order No. 12613, n. 151; President Reagan, Statement on 
Trade Sanctions Against Iran, Oct. 26, 1987, 2 Public Papers: Reagan 1987, at 1232,(1989); President Reagan, Messageto 
the Congress Reporting on the Prohibitions of Imports from Iran, id. 1245; see also n. 151 and accompanying text. 

397. The South African munitions supposedly arrived at Aqaba in oil tankers half filled with water and half with 
munitions. The same ships would then proceed to Al-Hamadi to pick up oil for South Africa. Lotfian, n. 38, 18-19. 

398. See nn. 447-48 and accompanying text. 

399. McNaugher, U.S. Policy, n. 78, 117; McNaugher, Walking, n. 231, 184, 186. 

400. McNaugher, Walking, n. 231, 186. 

401. Chubin & Tripp 218. 

402. Gamlen & Rogers, n. 326, 141. 

403. Chubin & Tripp 218. 

404. Id. 219. 

405. Text of Communique from Amman Summit, 27 ILM 1651-52 (1988). Iraq had accepted Resolution 598 in July. 
See n. 377 and accompanying text. Although Venturini, Commentary, n. 95, 531 says that while this decision did not 
address freedom of navigation and merchant ship attacks, its supporting Resolution 598, n. 376, incorporated these 
aspects of the war by reference. See nn. 376-77 and accompanying text. Moreover, an August Arab League foreign 
ministers conference had denounced minelaying in the Gulf and approved Kuwaiti actions to protect its security in 
the Gulf. Hiro 233-34. 

406. Hiro 192. 

407. Id. 198-200. 

408. Caron, n. 328, 195. 

409. Chubin & Tripp 252. 



The War, 1980-88 99 



410. O'Rourke, Tanker War, n. 354, at 33; Peace, in Panel, n. 84, 152-53; Peace, Major Maritime Events, n. 90, 558. 
Similar situations had occurred in August 1987 with no casualties; deadly force was not required. Hayes, Naval 
Rules, n. 341 , 46; Howard S. Levie, The Status of Belligerent Personnel "Splashed" and Rescued by a Neutral in the Persian 
Gulf Area, in Panel, n. 144, 597; Levie, The Status of Belligerent Personnel "Splashed" and Rescued by a Neutral in the 
Persian Gulf Area, 31 VJIL 610 (1991). 

411. Hayes, Chronology 1987, n. 2, 658. In October Iran had reported that a half million volunteers were prepared 
for "martyrdom-seeking operations" to resist the United States in the Gulf. Chubin & Tripp 219. 

412. 2 Cordesman & Wagner 336-37; Hayes, Chronology 1987, n. 2, 660. 

413. Cable 210; Cable, Navies, n. 145, 73. 

414. North Atlantic Council Statement, Dec. 11, 1987, NATO Communiques, 1987, at 27, reprinted in part in de 
Guttry & Ronzitti 555. In May NATO had not acceded to a US request for help in protecting oil tankers in the Gulf. 
Cf 34 Keesing 35933 (1988); see also Venturini, Commentary, n. 95, 532. 

415. Oman, Qatar and the UAE were opposed to the embargo. Hiro 236-37; Simma 706; McNaugher, Walking, n. 
231, 185. These States had connections with Iran. See nn. 118, 163, 177, 263, 294 and accompanying text. 

416. Hooglund, n. 82, 51-52; Litwak, n. 138, 209. France and the United States wanted sanctions only against Iran, 
but Britain preferred an evenhanded approach. Chipman, n. 49, 226. 

417. Iranian and USSR policy converged on this point. Chubin & Tripp 228-29. 

418. Hiro 239-40. Iraq had become deeply suspicious of Soviet motives in advocating S.C. Res. 598, however. 
Chubin & Tripp 199-200. 

419. McNaugher, U.S. Policy, n. 78, 121. During the summer the USSR had rejected a US plan for the Council's 
imposing an arms embargo on Iran. Katz, n. 1 38, 144. Iranian and Soviet interests in the Gulf "merely came to overlap 
to a degree in 1987." USSR aid to Iran in 1987 was $100 million, a tenth of what it had been in 1980. Chubin & Tripp 
227, 237; n. 128 and accompanying text. 

420. US Defense Mapping Agency Hydrographic/Topographic Center, n. 288, at 1-1.8 (Nov. 1, 1988). 

421. Cable 210. 

422. Iran Prize Law, n. 144, art. 3, in de Guttry & Ronzitti 39. The Law was approved and ratified in January 
1988. Id. 39. 

423. Merchandise subject to rapid deterioration or "not worthwhile preserving" would be sold, the money put in 
an account pending prize tribunal disposition. Iran Prize Law, n. 144, arts. 4-5, in de Guttry & Ronzitti 39-40. See 
also Momtaz, n. 89, 23-28; Jeffrey Schlosser, U.S. Policy in the Persian Gulf 87 Bulletin 38, 41 (Oct. 1987). 

424. Hiro 202. 

425. Assistant to the President for Press Relations Fitzwater, Statement on the United States Military Strike in the 
Persian Gulf, Apr. 18, 1988, 1 Public Papers: Reagan 1988, at 136 (1990); Menefee, Commentary, n. 74, 120. 

426. Lowe, Commentary, n. 77, 250; see also Second Report Ml 7.12-7.20. 

427. Italian President of Council of Ministers statement before Italian Chamber of Deputies, Oct. 8, 1987, Atti 
Parlamentari, Camera dei Deputati, X Legislatura, Discussioni 3027 (1987), in de Guttry & Ronzitti 456, 460-61; 
Italian Chamber of Deputies, Resolution 9/1924/1, Jan. 14, 1988, Atti Parliamentari, Camera dei Deputati, X 
Legislatura, Discussioni, p. 7276 (1988), in id. 465; de Guttry, Commentary, n. 84, 437-38; Panel, n. 84, 171 (Kaladkin 
remarks). 

428. Litwak, n. 138,209. 

429. Ronald O'Rourke, Gulf Ops, 115 Proceedings 43 (May 1989). 

430. Melia, n. 6, at 126-27. Probably mines had been laid just before ships transited. See n. 335 and accompanying 
text. Gamlen & Rogers, n. 326, 141 err in saying Roberts was written off. Roberts, although heavily damaged then, 
rejoined the fleet. 

431. President Reagan letter to Speaker of the House Wright, Apr. 19, 1988, 24 Weekly Comp. Pres. Doc. 493 
(1988); Fitzwater, Statement, n. 425; US Assistant to the President for Press Relations statement, Apr. 18, 1988, 2 
Public Papers: Reagan 1988, at 463 (1990); US Department of State message to Iran, Apr. 18, 1988, American Foreign 
Policy, 1988, at 439 (1989); US UN Permanent Representative letter to UN Security Council, Apr. 18, 1988, UN Doc. 
S/19791 (1988), in de Guttry & Ronzitti 222; see also Cable 211; 2 Cordesman & Wagner 375-80; Hiro 202-04; 
Melia, n. 6, 126-27; Gamlen & Rogers, n. 326, 141; Bud Langston & Don Bringle, The Air View: Operation Praying 



100 The Tanker War 



Mantis, 115 Proceedings 54 (May 1989); McNaugher, U.S. Policy, n. 78, 117; McNaugher, Walking, n. 231, 189-90; 
Menefee, Commentary, n. 74, 1 10, 129; O'Rourke, Gulf Ops, n. 429, at 44; J.B. Perkins III, The Surface View: Operation 
Praying Mantis, 1 1 5 Proceedings 66 (May 1989). Hayes, Naval Rules, n. 341, 51-52, characterized the US response to 
Roberts' mining as a reprisal. For analysis of reprisal, see nn. III. 591-616 and accompanying text. 

432. Momtaz, n. 89, 32, citing Iran Foreign Affairs Minister letter to UN Secretary-General, Apr. 18, 1988, UN 
Doc. S/19796 (1988), in de Guttry & Ronzitti 48; see also Gamlen & Rogers, n. 326, 141-42. 

433. Cf. US State Department message to Iran, Apr. 18, 1988, in American Foreign Policy, 1988, at 61 (1989); 
Britain supported the US response. Answers by UK Secretary of State for Foreign & Commonwealth Affairs, Apr. 18, 
1988, 131 Pari. Deb., H.C. (6th ser.) 551 (1988); see also Second Report H 6.24; Lowe, Commentary, n. 77, 252. In 1992 
Iran sued the United States in the ICJ for destroying these platforms and those lost in October 1987 during a similar 
response. The Court found jurisdiction. Oil Platforms Case, n. 395, 1996 (2) ICJ 820; see also n. 395 and accompanying 
text. 

434. Hiro 204; Gamlen & Rogers, n. 326, 141; McNaugher, Walking, n. 231, 189-90. 

435. Gamlen & Rogers, n. 326, 141. 

436. Shahram Chubin, Iran and the War: From Stalemate to Ceasefire, in Karsh 13,22; McNaugher, Walking, n. 231, 
187-88; Mesbahi, n. 126, 39. Iraq had lost Fao to Iran in February 1986. Baram, n. 285, 82, 84; Chubin 16. Chaim 
Kerzog, A Military-Strategic Overview, in Karsh 255, 263 says the turning point came in 1987 when Iran failed to 
capture Basra. 

437. US Department of State, Western Defense: The European Role in NATO 16-17 ( 1988); see also Second Report 
11 6.7; 2 Cordesman & Wagner 313-17; Belgian Defence Minister, Press Release, Mar. 25, 1988, H 4(e), in de Guttry & 
Ronzitti 517, 519; Chipman, n. 49, 224-25; Venturini, Commentary, n. 95, 532-33. 2 Cordesman & Wagner 528 say US 
convoying catalyzed other States' participation in naval operations. 

NATO forces operated as a coalition and not as part of the NATO alliance, which is limited to attacks on parties' 
territory in Europe, North America and certain ocean areas but not the Gulf. See North Atlantic Treaty, Apr. 4, 1949, 
arts. 5-6, 63 Stat. 2241, 2243-44, 34 UNTS 243, 246, as modified by Protocol on Accession of Greece and Turkey, Oct. 
17, 1951, art. 2, 3 UST 43, 44, 126 UNTS 350. Iraq risked a NATO response if it crossed Turkey's border during the 
1990-91 Gulf War. Walker, Crisis Over Kuwait 44. There may be a question as to whether the European navies operated 
under the WEU; Britain preferred to operate apart from WEU. Compare Second Report 11 6.7 with Kalshoven, 
Commentary, n. 84, at 476; see also Venturini 532. See also Western European Union, Press Guidelines Concerning the 
Meeting on the Situation in the Gulf, Aug. 20, 1987, 35 Eur. Y.B. 19 (1987), in de Guttry & Ronzitti 555; Netherlands 
Foreign Affairs Minister & Defence Minister letter to President of Second Chamber of Netherlands States-General, 
Sept. 7, 1987,TweedeKamerder Staten-Generaal, Vergaderjaar 1986-1987, p. 20075 No. \,inid. 495; Belgian Foreign 
Relations Minister statement before Joint Foreign Relations & National Defence Committee of Belgian Chamber of 
Representatives, Sept. 17, 1987, Chambre des Representants, Compte rendue analitique, Sess. ordinaire 1986-1987, 
Reunion publique de Commission Sept. 17, 1987, in id. 506. WEU was created by WEU Treaty, n. 388, amended by 
Protocols, Oct. 23, 1954, 211 id. 342, 358, 364; and 1990 and 1992 protocols. See Bowman & Harris 177 (11th Cum. 
Supp. 1 995). The 1954 protocols subordinated WEU military decisions to NATO. However, the Maastricht Treaty on 
European Union, Feb. 7, 1992, art. J, in 31 ILM 247, 323-27 (1992) would pledge development of a common security 
policy through WEU. See also nn. 388-89, III. 309, 800-17 and accompanying text. 

438. Cf. Mallein, n. 84, 394. 

439. Chipman, n. 49, 225; see nn. 388-389 and accompanying text. 

440. Chipman, n. 49, 225. This reflected Italy's diplomatic posture. See n. 84. 

441. Chipman, n. 49, 225. 

442. McNaugher, Walking, n. 231, 186; cf. Melia, n. 6, 124, (US Navy cooperation with other countries' sweeping 
operations). 

443. Hiro 164, 232, 238. 

444. Chubin & Tripp 215. 

445. Cfid. 

446. Hiro 205. 

447. Secretary of Defense Frank Carlucci statement, 88 Bulletin 61 (July 1988); Gamlen & Rogers, n. 326, 141, who 
say other information at the press conference indicated the policy change was directed toward Iranian attacks. The 



The War, 1980-88 101 



initial executive decision had been made with respect to protecting a jack-up barge, Scan Bay, of Panama registry but 
with US nationals aboard. O'Rourke, Gulf Ops, n. 429, 46-47. 

448. McNaugher, US. Policy, n. 78, 117-18. 

449. Second Report 1111 6.12, 6.25; Lowe, Commentary, n. 77, 248. 

450. Second Report H 6.12; Lowe, Commentary, n. 77, 248-49. 

451. Second Report 11 6.25; French Foreign Affairs Minister statement, June 16, 1987, Questions, J.O., June 16, 
1987, at 2441, in de Guttry & Ronzitti 405; French Secretary of State for Maritime Affairs written answer, Question 
36188, J.O., Mar. 21, 1988, p. 1301, in de Guttry & Ronzitti 408; Lowe, Commentary, n. 77, 249; Mallein, n. 84, 
396-401. 

452. French Armed Forces Information & Political Relations Service, Press Release, July 22, 1987, 11 4, in de 
Guttry & Ronzitti 413-14; Mallein, n. 84, 401-02. 

453. Italian Council of Ministers President statement before Italian Chamber of Deputies, Oct. 8, 1987, Atti 
Parlamentari, Camera dei Deputati, X Legislatura, Discussioni 3027 (1987), in de Guttry & Ronzitti 456, 458; 
Italian Defence Minister statement before IV Permanent Commission (Defense), Sept. 8, 1987, Boll. Commissioni, X 
Legislatura, IV Commissione Permanente (Difesa) 4 (Sept. 8,1987), in de Guttry & Ronzitti 441, 446; Italian 
Defence Minister statement before IV Permanent Commission (Defense), Sept. 24, 1987, id. (Sept. 24,1987), in de 
Guttry & Ronzitti 453, 455; de Guttry, Commentary, n. 84, 423-27; Kalshoven, Commentary, n. 84, 476. 

454. Secretary of Defense Carlucci statement, April 29, 1988, 88 Bulletin 61 (1988), strongly supporting Resolution 
598, n. 376, and deploring belligerents' use of chemical warfare. On May 9 S.C. Resolution 612 (1988), in Wellens 456, 
condemned chemical warfare; see also nn. 376-78 and accompanying text. 

455. Mallein, n. 84, 394. 

456. Italian Defence Minister statement before IV Permanent Commission (Defense), Sept. 24, 1987, Boll. 
Commissioni, X Legislatura, IV Commissione Permanente (Difensa) 4 (1987), in de Guttry & Ronzitti 453, 454; de 
Guttry, Commentary, n. 84, 434-36. 

457. 34 Keesing 35938 (1988). 

458. Hiro207. 

459. Id. 210-11. 

460. See n. 431 and accompanying text. 

461. Langston & Bringle, n. 431, 57-58. 

462. Perkins, n. 431, 70; see also M.C. Agresti, letter to the editor, 116 Proceedings 19, 20 (Jan. 1990). 

463. Linnan, Iran Air Flight, n. 227, 251, citing US Department of Defense, Investigation Report: Formal Investigation 
into the Circumstances Surrounding the Downing of Iran Air Flight 655 on 3 July 1988 (1988) (Iran Air Flight 655 Report), 
App. E to International Civil Aviation Organisation, Fact-Finding Investigation: Destination of Iran Airbus A 3 00 in the 
Vicinity of Qeshm Island, Islamic Republic of Iran on 3 July 1988 (Nov. 1988). 

464. Linnan, Iran Air Flight, n. 227, 251, citing Iran Air Flight 655 Report, n. 463, E-7; see also McNaugher, 
Walking, n. 231, 190. 

465. Linnan, Iran Air Flight, n. 227, 251, citing Investigation into the Downing of an Iranian Airliner by the U.S.S. 
"Vincennes": Hearing Before Subcommittee on Armed Services of the United States Senate, 100th Cong., 2d Sess. 9 (1988) 
(Rear Admiral William M. Fogarty, Director of Policy & Plans, US Central Command; Head, Investigation Team 
testimony, Sept. 8, 1988). 

466. Linnan, Iran Air Flight, n. 227, 251, citing Iran Air Flight Report, n. 463, E-6. 

467. Linnanjran Air Flight, n. 227,251-52, citing Iran Air Flight Report, n. 463, E-7; McNaugher, Walking, n.231, 
190. 

468. Linnan, Iran A ir Flight, n. 227, 252-57, citing Iran Air Flight Report, n. 463, passim. For other factual accounts, 
see generally 2 Cordesman & Wagner 573-84; Hiro 210-12; Louise Doswald-Beck, Vessels, Aircraft and Persons Entitled 
to Protection During Armed Conflict at Sea, 65 BYBIL 21 1, 271-74 (1994); Norman Friedman, The Vincennes Incident, 115 
Proceedings 72 (May 1989); Langston & Bringle, n. 431, at 54; Menefee, Commentary, n. 74, 1 10, 129-30; Perkins, n. 
431, 66, 70; The Vincennes Incident, 116 Proceedings 19 (Jan. 1990). Iran claimed the United States was guilty of 
aggression. See Momtaz, n. 89, 32-33, citing Iran Foreign Affairs Minister statement before UN Security Council, July 
14, 1988, UN Doc. S/PV 2818 (1988), in de Guttry & Ronzitti 49. Britain supported the US self-defense claim. 



102 The Tanker War 



Answer by UK Secretary of State for Foreign & Commonwealth Affairs, July 6, 1988, 136 Pari. Deb., H.C. (6th ser.) 
1046 (1988); Lowe, Commentary, n. 77, 252. This was not the only mistake during the fog of war; Iraq's attack on the 
Stark and US shots at dhows are two more examples. See nn. 338-39, 367, 410 and accompanying text. Soviet media 
claimed that the United States was trying to "kindle" the war. Litwak, n. 138, 210. Gamlen & Rogers, n. 326, 142-43, 
offer only a partial factual summary in criticizing the attack. The tragedy may have helped promote an end to the war. 
See Introductory Note, n. 3 1 , 445 ; n. 482 and accompanying text. The ICJ sui t was settled in 1 996. See Agreement on Case 

Concerning Aerial Incident of 3 July 1988, Before the International Court of Justice, Feb. 9, 1996, Iran-US, TI AS , 

35 ILM 572 (1996). 

469. President Reagan letter to Speaker of the House Wright, July 14, 1988, 24 Weekly Comp. Pres. Doc. 938 
(1988); see also 2 Cordesman & Wagner 390-94; Menefee, Commentary, n. 74, 110: O'Rourke, Gulf Ops, n. 429, 47. 

470. See n. 447 and accompanying text. 

471. Between 28 and 33 escort ships were involved, under Joint Task Force Middle East (JTFME), subordinate to 
CENTCOM. JTFME was a combination of the Middle East Force that had been in the Gulf since World War II, albeit 
augmented considerably since the war's outbreak, and carrier battle groups ordered to the area. Johnson, n. 79, 131-32. 

472. Saudi Arabia, although unable to persuade other Gulf States to take firm stands against Iran, had been 
encouraged by US self-defense efforts. The immediate cause was Iran's refusal to accept the Saudis' curtailment of 
Iranian pilgrims for the hajj, based on the ICO formula. Hiro 236; Lotfian, n. 38, 20. 

473. Kanovsky, n. 72, 238; Lotfian, n. 38, 19; Marr, n. 82, 67. 

474. Kanovsky, n. 72, 238; see also Chubin & Tripp 154, 230. 

475. Chubin & Tripp 230-31; Katz, n. 138, 144. 

476. Kanovsky, n. 72, 243. By the war's end, Iran's oil revenues were half its military expenditures; except for 
1980-82, Iraqi military expenditures equalled or exceeded oil revenues, its principal foreign exchange source to 
finance its war effort. Chubin & Tripp 125. 

477. League of Arab States, Text of Communique from Algiers Summit, 27 ILM 1654 (1988), referring to Text of 
Communique from Amman Summit, n. 405; see also nn. 405-09 and accompanying text. 

478. European Economic Community, its Member States, and the Cooperation Council for the Arab States of the 
Gulf and its Member States,7om/ Political Declaration, June 15, 1988, 4 Eur. Pol. Coop. Doc. Bull. 173 (No. 1,1988), in 

DE GUTTRY & RONZITTI 554. 

479. Statement by the Group of Seven, June 20, 1988,88 Bulletin 49 (Aug. 1 988); see also Venturini, Commentary, n. 
95, 533; nn. 376-377 and accompanying text. 

480. See nn. 11-12, 76-77, 127, 151 and accompanying text. 

481. Lotfian, n. 38, 20. 

482. The note referred to the Airbus tragedy, which thus may have had a perverse effect of promoting peace. Iraq 
had accepted Resolution 598 the year before. Introductory Note, n. 31, 445; see also Hiro 242-45; nn. 459-68 and 
accompanying text. Tousi, n. 1.30, 57-58, puts the date at July 18 by Iran's Minister of Foreign Affairs and July 21 by 
Ayatollah Khomeni, saying the real reason for acceptance was Iran's parlous economic situation, even with $12 billion 
in foreign loans. Its armed forces' war weariness and the psychological effect of Iraq's gas warfare were also factors. 
Edmund Gareeb, The Roots of Crisis: Iraq and Iran, in Joyner 21-22. Within the United States the airbus accident 
controversy gave way to "self-congratulations on a job well done." McNaugher, U.S. Policy, n. 78, 118. 

483. UN Secretary-General Report, Aug. 8, 1988, UN Doc. S/20093 (1988), in Wellens 470; see also Caron, n. 328, 
197-99. 

484. UNIIMOG was established for six months and continued until February 1991. S.C. Res. 619 (1988); 631, 642 
(1989); 651, 671, 676 (1990); 685 (1991), in Wellens 456-60; see also Caron, n. 328, 199-200; Peace-Keeping, in Simma 
565, 580. 

485. S.C. Res. 620 (1988), in Wellens 457, again condemned use of chemical weapons in the war; see also nn. 376-77 
and accompanying text. 

486. Introductory Note, n. 31, 447-48. See, e.g., DOD Report, n. 8; Friedman, n. 8, for analysis of this war; for legal 
analysis, see, e.g., DOD Report, App. O; Iraqi Symposium, n. 8; Schachter, n. 8; Symposium, n. 8. 

487. Caron, n. 328, 203. 

488. Post, n. 50, 35; see also nn. 36, 50, 69, 85-86, 89, 100, 153-56 and accompanying text. Iraq tried to get more 
conditions attached to the ceasefire: UN clearance of the Shatt; Iraq's Gulf and Hormuz navigation rights to be 



The War, 1980-88 103 



guaranteed; if the belligerents failed to achieve a comprehensive peace settlement, the United Nations should play an 
active role in restoring direct official talks. These were a smokescreen as Iraq sought to consolidate territorial gains. It 
failed. Hiro 245-47. 

489. Caron, n. 328, 201-03; Lotfian, n. 38, 21-22; Charles G. MacDonald,/ran, Iraq, and the Cease-Fire Negotiations, 
in Joyner 208, 212-20; Walker, Crisis Over Kuwait 37 n. 64; see also nn. 36, 50, 69, 85-86, 89, 97, 100, 153-56, 486 and 
accompanying text. For other Iranian views, see generally Ali Asghar Kazemi, Peace Through Deception: The Iran-Iraq 
Correspondence, in Rajaee, Iranian Perspectives 1 11-19; Djamchid Momtaz, The Implementation of UN Resolution 598, 
in id. 123-32. 

490. Douglas Jehl, Iran and Iraq Begin Big Trade of P.O. W. 's, N.Y. Times, Apr. 7, 1998, at A3. Iran has refused to 
return over 100 Iraqi aircraft flown to Iran to escape destruction by the coalition during the 1990-91 war, however. 
Pearl, n. 120, Al. 

491. Momtaz, n. 89, 28, citing Iran Foreign Minister Declaration to UN General Assembly, Oct. 3, 1988. 

492. Iraq Foreign Affairs Minister letter to UN Secretary-General, Aug. 20, 1988, UN Doc. S/20140 (1988), in de 
Guttry & Ronzitti 95. Stopping and searching vessels during peace talks was a negotiating factor, however. Hiro 
252-53. 

493. Alfred Cahen, The Western European Union and NATO 47-50 (1989); 33 Keesing 35360 (1987), 34 id. 36106 
(1988); Chipman, n. 49, 225; Venturini, Commentary, n. 95, 532-33. 

494. Assistant to the President for Press Relations statement, Sept. 26, 1988, American Foreign Policy, 1988, at 460 
(1989); Cushman, Navy to End, n. 4, 2. 

495. O'Rourke, Gulf Ops, n. 429, at 43. 

496. Kuwait to "Deflag, " n. 5, 9. 

497. Half had been sent home earlier. Melia, n. 6, 123, 127; see also n. 6 and accompanying text. Netherlands and 
UK minesweepers had been ordered home a year earlier; Belgian and Italian ships left in 1988. Netherlands Minister 
of Defence & Minister for Foreign Affairs letter to President of Second Chamber of Netherlands States-General, Oct. 
4, 1988, Tweede Kamer der Staten-Generaal, Vergaderjaar 1988-89, 20075 No. 20, in de Guttry & Ronzitti 505; 
Belgian Minister of Defence, n. 437, U 4(f), id. 517, 519; Lowe, Commentary, n. 77, at 247. 

498. US Assistant Secretary of State for Near Eastern & South Asian Affairs Murphy, Progress Report on the Persian 
Gulf, Mar. 15, 1988, American Foreign Policy Current Documents 1988, at 437 (1989) reprinting in part Developments in 
the Middle East, March 1988: Hearing Before the Subcommittee on Europe and the Middle East of the Committee on Foreign 
Affairs, H.R., 100th Cong., 2d Sess. 2-3 (1988) reported 40 convoys, but Johnson, n. 79, 131-32, probably relying on 
later, more complete data, says there were over 100 convoys. Menefee, Commentary, n. 74, 120; n. 471 and 
accompanying text. 

499. E.g., Second Report 6.17-20; Belgian Minister of Defence, n. 437, 11 4, in de Guttry & Ronzitti 518-19. 

500. Hiro 248-49, 253. 

50 1 . Fenrick, Military Objectives, n. 202, 20; see also Fenrick, Legal Aspects of Targeting in the Law of Naval Warfare, 
1991 CYBIL 238, 260. 

502. Hiro 1, 250; MacDonald, n. 489, 210; Farhang Rajaee, Views from Within, in Rajaee, Iranian Perspectives 1,2. 
Id. 1 argues the Vietnam War was "essentially an incipient civil war in South Vietnam in the mid-1960s," and the strife 
between China and Japan in Manchuria beginning in 1931 "never reached a point where one State declared war 
against the other." China tried to regain Manchuria in 1937 in a conflict that merged into World War II. Many would 
argue the Vietnam case differently, and China's war with Japan was equally long, eight years. 

503. Caron, n. 328, 191; Tousi. n. 1.30, 51. 

504. Marr, n. 82, 70. 

505. Efraim Karsh, Introduction, in Karsh 1, 2-3. 

506. Rajaee, n. 502, 2. An earlier estimate was $700 billion. Farhang Rajaee, Introduction, in Rajaee, Iran-Iraq War 
1. Bahman Baktiari, International Law: Observations and Violations, in id. 152, 164, reports Iranian estimates of 
reparations as high as $400 million by 1986. 

507. Marr, n. 82, 70. 

508. Kuwait and Saudi Arabia gave Iraq between $25 billion and $65 billion in financial assistance. Kanovsky, n. 
72, 237; Kechichian, n. 21, 92-93; Laith Kubba, The War's Impact on Iraq, in Rajaee, Iran-Iraq War 47, 48; see also nn. 
112-18 and accompanying text. Kanovsky 239 estimates Iraqi external debt at $40-50 billion at the end of 1987 with 



104 The Tanker War 



only $1 billion in foreign exchange reserves. An interesting byproduct of the war was an Iraqi policy change toward a 
free enterprise system. Id. 239-40. 

509. Karsh, n. 505, 10. 

510. Mesbahi, n. 126, 89. 

511. Kubba,n. 508, 53. 

512. Chubin & Tripp 303-05 (1980-86 statistics, which do not include battlefield and sea losses during the war's last 
two years.) 

513. Rajaee, Views from Within, n. 502, 3; see also Hiro 254-66. McNaugher, U.S. Policy, n. 78, 122, declares, 
however, that "In some sense, Iraq can be said to have won its war with Iran." Iraqi President Hussein said as much in 
1991. Rajaee, Introduction, in Rajaee, Iran-Iraq War 1. See also Karsh, n. 505, 3-4. 

514. Herzog, n. 436, 266, referring to Barbara W. Tuchman, The March of Folly (1984). 

515. See n. 8 and accompanying text. 

516. Herzog, n. 436, 267. Iraqi President Hussein obliquely recognized this in 1982 but persisted with war for six 
more years. Chubin & Tripp 193. 

517. 2 Cordesman & Wagner 530. 

518. Russo, Neutrality at Sea, n. 1 12, 397; Frank L. Wiswall, Remarks, in Panel, n. 144, 594-95; Wiswall, Neutrality, 
n. 295, 621. Second Report 11 6.1 says 471 merchant mariners died, and 407 ships were attacked, and 8 more were 
mined. 

519. Wiswall, Remarks, n. 518,595; Hiro 1,250-5 l;see also Wiswall, Neutrality, n. 295,621. L.F.E. Gol die, Maritime 
War Zones and Exclusion Zones, in Robertson 156, 176, agreed with most of these points but argued that threat of an oil 
surplus in the 1980s and "favorable conditions of insurance . . . rendered such attacks relatively less unacceptable to 
the tanker fleets owners than did such attacks during the World Wars," when there was scarcity of shipping and 
cargoes. See also R. Glenn Bauer, Effects of War on Charier Parties, 13 Tul. Mar. L.J. 13, 17-24 (1988). 

520. Peace, in Panel, n. 84, 147-48; Peace, Major Maritime Events, n. 90, 548-49; Roach, Missiles on Target, n. 143, 
156; Roach, Missiles on Target: Targeting, n. 90, 603-08. 

521. 2 Cordesman & Wagner 530. 

522. See nn. 459-68 and accompanying text. 

523. In 1988 Second Report 11 8.1 estimated that the war had "killed or maimed many hundreds of thousands of 
people;" see also nn. 502-04 and accompanying text. 

524. Kanovsky, n. 72, 249. 

525. See nn. 210-14 and accompanying text. 

526. See, e.g., nn. 112, 178, 272, 283, 306, 309-10, 334, 401, 457 and accompanying text. 

527. See, e.g., nn. 92, 178-80, 234-40, 250-60, 272-73, 292, 303, 306, 319, 334, 338-39, 354, 368-73, 391-93, 412, 424, 
431-34, 446, 469 and accompanying text. 

528. See, e.g., nn. 261, 358, 459-68 and accompanying text. 

529. See n. 210 and accompanying text; see also Chapter VI. 

530. See, e.g., nn. 1 12, 1 14, 181-83, 279, 313, 473-75, 524 and accompanying text. 

531. McNaugher, U.S. Policy, n. 78, 122. 

532. See,e.g., nn. 83, 120, 124, 126, 130, 139, 177, 196,207,242-44,286-87,315,418,510andaccompanyingtext. 

533. Johnson, n. 79, 135-36; see also Karsh, n. 505, 8. 

534. Katz, n. 138, 146-48; Litwak, n. 138, 210-12; see also, e.g., nn. 52-54, 84, 127, 136-39, 149, 207, 242-43, 249, 287, 
315-16, 330-31, 337, 362, 374, 416, 419, 427-28, 442, 475, 500 and accompanying text. 

535. Litwak, n. 138, 21 1 (USSR accused Iran of beaming anti-Soviet religious propaganda to Islamic populations 
in Soviet central Asia). 

536. See n. 8 and sources cited. 

537. See, e.g., nn. 84, 96, 161, 189-90, 192, 216-18, 251-59, 300, 308, 376-77, 416-17, 479, 482-87 and accompanying 
text. 



The War, 1980-88 105 



538. See, e.g., nn. 31, 93-95, 184-85, 192-94, 248, 256, 283-84, 405, 477 and accompanying text. 

539. Chipman, n. 49, 225; Europe's Multilateral Organizations, 3 Dispatch 531, 534 (1992); see also, e.g., nn. 388-89, 
414, 437-41, 443-44, 454-56, III.309, 800-17 and accompanying text. 

540. Chipman, n. 49, 227. 

541. See, e.g., nn. 84, 93-94, 260, 271, 375, 378, 478-79; see also nn. 111.818-19 and accompanying text. 

542. Chipman, n. 49, 227. 

543. Rubin, n. 164, 132. 

544. Sterner, n. 21, 21; see also nn. III. 800-17 and accompanying text. 

545. Geoffrey Kemp, The Arms Race After the Iran-Iraq War, in Karsh 269, 273-74.See, e.g., nn. 21-28, 80, 84, 159-72, 
186-99, 192-93, 208-09, 218, 248, 250-59, 262-63, 290-94, 315, 330, 382, 415, 481, 510, and accompanying text for 
analysis of the GCC's Tanker War roles. 

546. Chapter III. 

547. Chapter IV. 

548. Chapter V. 

549. Chapter VI. 



Chapter III 

CLAIMS TO MINIMUM WORLD PUBLIC 
ORDER ON THE OCEANS 



Chapter II demonstrates that attempting to preserve minimum public order 
in the Gulf during the Tanker War involved many participants with vary- 
ing (sometimes multiple) perspectives in different arenas and situations with 
numerous coercive and persuasive strategies at their command. This and suc- 
ceeding chapters examine claims to authority in the effective power process as part 
of the ongoing global social process. As McDougal and his associates have noted, 
international law as the effective global power process is subject to claims by par- 
ticipants to optimize their goals in that process. In some instances these claims 
are part of the civic order, i.e., private orderings or private claims, as opposed to 
public order norms or claims to public order. But civic order claims, as will be 
seen, may have serious and strong impact on public order claims and claimants. 
For example, attacks on merchant ships caused phenomenal increases in insur- 
ance rates; these in turn affected global oil prices, and rising oil prices undoubt- 
edly influenced government decisionmakers. By the same token, decisions of 
governments, based in their perception of law, undoubtedly influenced their con- 
siderations on assisting one or both belligerents and their attitudes toward private 
parties who had dealings with belligerents. The tilt toward supporting Iraq that 
grew throughout the war, and a corresponding decline in support of Iran, although 
there were cross-currents the other way, is an example of this interrelationship. 
Although Jessup argued for an interstitial transnational law, more recently 
Lowenfeld has made the point, as law of war manuals have for a sliding scale of 

o 

conflict between war and peace, that there is a sliding scale relationship between 
public law and transnational law that governs matters between private actors and 
between private actors and States, sometimes an actor's own country and some- 

o 

times another nation. And while the Chapter III-VII analysis in this volume con- 
centrates on public law analysis, the incidence of civic order relationships, i.e., 
transactions governed by transnational law, must be borne in mind. 

Because of the Charter's trumping effect on treaty law and its strong influence 
on customary norms, and because several participants in the Tanker War, e.g., 
France and the United Kingdom, believed that the Charter and not the LOAC 

12 

governed, analysis begins with study of Charter- related claims, particularly is- 
sues of self-defense and neutrality. This Chapter ends with an examination of the 
law of treaties and its relationship with crisis and armed conflict. 



108 The Tanker War 



Part A. UN Charter Norms; Related Issues 

The history of the Charter, and its drafting and record of negotiations, have 
been well-documented. The general contours of practice under the Charter have 
also been chronicled. This is not the place to mine anew these lodes. What fol- 



lows is a statement of provisions of the Charter, followed by summaries of claims 
and counterclaims under the Charter and relat( 
sions (outcomes) as to the current state of the law. 



and counterclaims under the Charter and related sources of law, with conclu 



/. Norms Stated in the Charter 

Five parts of the Charter are relevant to the Tanker War: its Preamble, Purposes 
and Principles; self-defense and related concepts in the Charter era; lawmaking 
under the Charter; pacific settlement of disputes; and action under the Charter to 
deal with threats to the peace, breaches of the peace, and acts of aggression. A half 
century of practice under the Charter has developed in some instances. In other 
cases pre-Charter norms still have force. 

a. The Preamble, Purposes and Principles of the Charter. The Charter Preamble 
initially expresses Member States' determination: 

to save succeeding generations from the scourge of war[;] ... to reaffirm faith in 
fundamental human rights, ... in the equal rights of. . . nations large and small [;] to 
establish conditions under which justice and respect for the obligations arising from 
treaties and other sources of international law can be maintained [;] and to promote 
social progress and better standards for life in larger freedom. 

To achieve these goals, UN Members have pledged: 

to practice tolerance and live together in peace ... as good neighbors, and to unite 
our strength to maintain international peace and security, and to ensure, by the 
acceptance of principles and the institution of methods, that armed force shall not be 
used, save in the common interest, and to employ international machinery for 
[promoting] economic and social advancement of all people[.] 16 

All Persian Gulf States, and all countries that were Tanker War participants, al- 
though perhaps as States not parties to the conflict, are UN Members. Iran and Iraq 

17 

are original Members. 

Little use of the Preamble's statements have been made since 1945. One recent 
example, however, occurred during the Tanker War itself, when the Security 
Council noted "that Member States pledged together to live together in peace with 

18 

one another as good neighbors in accordance with the Charter. . ." The Preamble 
in other cases "reinforces, without being essential to, the propositions [founded on 

19 r 

other parts of the Charter] being advanced" There have been occasional uses of 



World Public Order 109 



the Preamble in other Council and General Assembly resolutions relevant to this 
study, however. The General Assembly's Uniting for Peace (UFP) Resolution dis- 

20 

cussions in 1 950 referred to the Preamble. The General Assembly's Friendly Re- 

21 

lations Declaration of 1 970 also employed Preamble language. To the extent that 
these resolutions have been incorporated by practice, e.g., by subsequent General 

22 

Assembly-recommended peacekeeping operations under a UFP precedent, or 

23 
have been incorporated by reference in later resolutions or authoritative pro- 
nouncements, the Preamble has had added vitality. 

In any event, the drafters intended that all Charter provisions "being . . . indivis- 
ible as in any other legal instrument, are equally valid and operative." Each provi- 
sion must be construed and applied together. 

(a) The "Preamble" introduces the Charter and sets forth the declared com- 
mon intentions which brought us together in this Conference and moved 
us to unite our will and efforts, and made us harmonize, regulate, and or- 
ganize our international action to achieve our common ends. 

(b) The "Purposes" constitute the raison d'etre of the Organization. They are 
the aggregation of the common ends on which our minds met; hence, the 
cause and object of the Charter to which member States collectively and 
severally subscribe. 

(c) The chapter on "Principles" sets, in the same order of ideas, the methods 
and regulating norms according to which the Organization and its mem- 
bers shall do their duty and endeavor to achieve the common ends. Their 
understandings should serve as actual standards of international con- 
duct. 24 

Thus the Preamble is an integral part of the Charter as a statement of "motivating 
ideas and purposes," although it does not define UN Members' obligations. These 
ideas and purposes can be, and have been, used to evidence the Charter's ideas and 
purposes in considering the articles of the Charter. In effect, the Preamble is a se- 

25 

ries of pledges, fulfillment of which are in the Charter's Purposes, Principles and 
constitutive provisions. 

i. Purposes of the Organization: Articles 1(1), 1(2). Although the United Nations 
as contemplated under the Charter is "a multipurpose organization, . . . mainte- 
nance of [international] peace and security is the primary purpose of the Organiza- 
tion and takes priority over other purposes." The order of listing the UN's 
Purposes, Charter article 1(1) stating the goal of international peace and security 
first, supports this view: 

The Purposes of the United Nations are: 

1. To maintain international peace and security, and to that end: to take ef- 
fective collective measures for the prevention and removal of threats to 



110 The Tanker War 



the peace, and for the suppression of acts of aggression or other breaches 
of the peace, and to bring about by peaceful means, and in conformity 
with the principles of justice and international law, adjustment or settle- 
ment of international disputes or situations which might lead to a breach 
of the peace. 27 

Goodrich and his collaborators note the difference between Article 1(1 )'s lan- 
guage, i.e., the United Nations may "take effective collective measures" to prevent 
and remove threats to the peace, to suppress aggression or other breaches of the 
peace, the "measures" language of Articles 39, 41 and 42, Article 50's "preventive 
or enforcement measures," Article 5's "preventive or enforcement action" and the 
"enforcement measures" Article 2(7) mentions. This language difference has been 
cited as authority for the UFP Resolution; the Council might have a duty to take 
"measures" or action, but the General Assembly's responsibility and powers under 
Article 10 should be determined by Article l(l)'s twofold injunction for "effective 

28 

collective measures" to maintain or restore peace. Article 1(1) also assumes that 
resolution of a dispute or situation will be in accordance with international law 

29 

and "justice," a provision inserted to protect small States, a corollary to the sover- 

30 

eign equality of all UN Members. Implementing Article 1(1), at least in terms of 

the Charter language, has been through Articles 2(3), 2(4), and Chapter VI-VIII. 

31 
Therefore, analysis of the use of Article 1(1) will be deferred until later. 

Another of the UN's Purposes is "to develop friendly relations among nations 

based on respect for the principle of equal rights and self-determination of peoples, 

32 

and to take other appropriate measures to strengthen universal peace." Most 

33 

analysis has focused on elevating self-determination to a human right, some- 
times in mutilateral conventions, and often invoked in efforts to end colonial- 
ism, the Declaration on Granting of Independence to Colonial Countries and 

35 rr 

Peoples being a watershed. A collateral effect has been developing the idea that 
self-determination includes permanent sovereignty over natural resources and a 

37 

State's right to freely dispose of its natural wealth and resources. 

Assembly and Council interpretations of Article 1(2) played a background role 
in naval matters after World War II. In the Algerian Civil War (1957-59) the As- 

38 

sembly referred to "the right of the Algerian people to self-determination" after 

39 
France gave Algerians the right to determine their status. The resolution passed 

after the French interdiction campaign and had no impact on claims of legality 
of that operation. Assembly Resolution 1514, declaring all peoples including those 
under colonial rule have self-determination rights, was incorporated by reference 
in Council resolutions on Rhodesia (1965-80). In this case the Royal Navy en- 
forced Council-directed interdiction of Beira-bound tankers loaded with oil in- 
voiced to Rhodesia. 

Article 1 (2) played no stated role in the Tanker War; self-determination was not 
an issue. However, the issue of "the inalienable right" of all States "freely to 



World Public Order 111 



dispose of their national wealth and resources" was behind the desires of States 
like Kuwait and Saudi Arabia to export petroleum, part of their "natural wealth," 
through their ports and all sea lanes. Shipping flagged under other States was en- 
gaged in lifting petroleum from these ports and otherwise in legitimate trade 
within the Gulf. The Council condemned hostilities in "sea-lanes, navigable wa- 
terways, harbour works, terminals, offshore installations and all ports with direct 
or indirect access to the sea . . .." The Council later reaffirmed "the right of free 
navigation in international waters and sea lanes for shipping to and from all ports 
and installations of the littoral States . . . not parties to the hostilities[.]" Iran had 
attacked commercial shipping en route to and from Kuwaiti and Saudi ports. To 
the extent that these attacks frustrated the rights of Kuwait, Saudi Arabia, and 
other Gulf States not parties to the war to dispose of their natural wealth, attacks on 
shipping carrying these exports could be seen as a violation of Article 1(3) as inter- 
preted by the Assembly and the Council. 

ii. Principles in the Charter: Articles 2(3), 2(4). The principle expressed in Arti- 
cle 2(3) is a logical corollary of the principle of Article 2(4), which prohibits threat 
or use of force against a State's territorial integrity or political independence, or in 
any manner inconsistent with the Purposes of the United Nations. Article 2(3) re- 
quires UN Members to settle their international disputes by peaceful means so 
that international peace and security, and justice, are not endangered. A legacy 
from the League Covenant era, the language of Article 2(3) has been incorporated 

in many international agreements. Its substance, mingled with Articles 33-36's 

48 
parallel policies, has been restated in many UN resolutions, including Security 

Council Resolution 479, the first Council action in the Iran-Iraq war. 

Article 2(4) of the Charter "lays down one of the basic principles of the United 
Nations," incorporating by reference Article l's Principles and declaring, "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." Article 
2(4) must be interpreted in the context of other Charter norms; i.e., it may be tem- 
pered by other rights (e.g., of self-defense) under the Charter or general interna- 

52 
tional law under a number of theories. The point of difference is the relative 

scope of the right of self-defense and the extent to which the right of self-defense 
qualifies Article 2(4), an analysis deferred for consideration in the context of 
self-defense and related issues. 

Definition of terms lies beneath the problem of interrelationships between Ar- 
ticle 2(4), which at least restates a customary rule, and other claims. Two views 
have developed on what "threat or use of force" means: Does "force" mean only 
"armed force," or does it include economic or political pressure? Most commen- 
tators say force means only armed force and does not include economic or political 



112 The Tanker War 



pressure. Recent treaty negotiations support a narrow definition of "force." 
States have negotiated separate provisions prohibiting coercive economic or polit- 

57 

ical methods. Proponents of a clause to include economic coercion with military 
coercion as a ground for voiding a treaty, failed in the Vienna Convention on the 

58 

Law of Treaties negotiations. The Vienna Convention on the Law of Treaties 
Between States and International Organizations or Between International Organi- 

59 

zations also lacks such a provision. Although the General Assembly has adopted 
resolutions calling upon States to refrain from economic or political coercion, nei- 
ther the Assembly nor the Council has determined that such coercion equates with 
use of force under Article 2(4). The Assembly may have come close with the 1970 
Friendly Relations Declaration, but analysis reveals that the line has not been 
crossed. Other examples are consensus approval of a definition of aggression 
and the Charter of Economic Rights and Duties of States (NIEO). 

Similar to the US position that aggression "cannot be so comprehensive as to in- 
clude all cases . . . and cannot take into account the various circumstances which 
might enter into the determination of aggression in a particular case[,]" the Res- 
olution definition of aggression parallels Article 2(4): "Aggression is the use of 
armed force by a State against the sovereignty, territorial integrity or political in- 
dependence of another State, or in any other manner inconsistent with the Char- 
ter ..., as set out in this Definition." 

A State's first use of armed force in violation of the Charter is prima facte evi- 
dence of an act of aggression, although the Security Council may determine that, 
under the circumstances, no act of aggression has been committed. The Defini- 
tion considers the following as acts of aggression whether or not there has been a 
war declaration: 

(a) The invasion or attack by the armed forces of a State of the territory of another 
State, or any military occupation, however temporary, resulting from such in- 
vasion or attack, or any annexation by the use of force of the territory of an- 
other State or part thereof; 

(b) Bombardment by the armed forces of a State against the territory of another 
State or the use of any weapons by a State against the territory of another 
State; 

(c) The blockade of the ports or coasts of a State by the armed forces of another 
State; 

(d) An attack by the armed forces of a State on the land, sea or air forces, marine 
and air fleets of another State; 

(e) The use of armed forces of one State which are within the territory of another 
State with the agreement of the receiving State, in contravention of the condi- 
tions provided for in the agreement or any extension of their presence in such 
territory beyond the termination of the agreement; 

(f) The action of a State in allowing its territory, which it has placed at the dis- 
posal of another State, to be used by that other State for perpetrating an act of 
aggression against a third State; 



World Public Order 113 



(g) The sending by or on behalf of a State of armed bands, groups, irregulars or 
mercenaries, which carry out acts of armed force against another State of such 
gravity as to amount to the acts listed above, or its substantial involvement 
therein. 67 

/TO 

The list is not exhaustive. Article 5(1) is the only direct reference to economic 
strategies: "No consideration of whatever nature, whether political, economic, 
military or otherwise, may serve as a justification for aggression." Thus eco- 
nomic need cannot justify aggression, but that does not mean that a coercive eco- 
nomic strategy is aggression. 

As with the 1970 Friendly Relations Declaration, NIEO Article 32 proclaims 
that "No State may use or encourage ... economic, political or any other ... mea- 
sures to coerce another State ... to obtain . . . subordination of the exercise of its sov- 

70 

ereign rights." Because of the vote on NIEO (118-6-10) and developed States' 
solid opposition, and NIEO's status as not being a first measure of codification and 

71 

progressive development, it is unlikely that Article 32 recites custom. State prac- 

72 

tice under the Vienna Convention confirms this view. 

One issue, for which there are no clearcut answers in Charter practice, is 
whether the "territorial integrity" phrase in Article 2(4) includes the "floating ter- 

73 

ritory" of a vessel flying a State's flag. The Corfu Channel Case settled the issue for 
warships; the judgment included an award for damage to the UK ships and for per- 
sonnel injured or killed. Security Council resolutions affirmed freedom of navi- 

7S lf\ 

gation in the 1967 Arab-Israeli conflict and in the Tanker War; in the past 
other resolutions approved interdiction of Beria-bound merchantmen as part of 

77 

sanctions action against Rhodesia. The freedom of navigation resolutions con- 
firmed vessels' right to be free of belligerent interference; the Rhodesia intercep- 
tion resolution can be seen as a derogation on a right of "floating territorial 

78 

integrity" in the sense of Article 2(4). 

Even if a ship might not be considered part of a State's territory and therefore 
not subject to Article 2(4), attacks on individual merchant ships are acts of aggres- 
sion and are subject to self-defense response(s) under Article 51. This issue was 
particularly relevant for the Tanker War. 

Although Article 2(4) does not cite aggression specifically, it does prohibit 
Members from acting "in any other manner inconsistent with the Purposes of the 

United Nations" in their international relations. Article 1(1) states the UN's pri- 

79 • -i -11 

mary Purpose as maintaining international peace and security through collec- 
tive action to "suppress . . . acts of aggression or other breaches of the peace . . . ." 
Therefore, UN Members have an obligation to refrain from acts of aggression 

80 

against other States. And, as also developed under the self-defense analysis, the 
Nicaragua Case adopted the broader French-language version of the Charter, Arti- 
cle 51. Article 51's English language version reads: 



114 The Tanker War 



Nothing in the . . . Charter shall impair the inherent right of individual or 
collective self-defense if an armed attack occurs against a Member of the United 
Nations, until the Security Council has taken the measures necessary to maintain 
international peace and security. Measures taken by Members in the exercise of this 
right of self-defense shall be immediately reported to the . . . Council and shall not in 
any way affect the authority and responsibility of the . . . Council under the . . . Charter 
to take at any time such action as it deems necessary ... to maintain or restore 
international peace and security. 

The French version reads: 

Aucune disposition de la . . . Charte ne porte atteinte au droit naturel de legitime 
defense, individuelle ou collective, dans le cas ou un Membre des Nations Unies est 
Pobjet d'une agression armee, jusqu a ce que le Conseil de Securite ait pris les mesures 
neccaires pour maintenir la paix et la securite internationales. Les mesures prises par 
des Membres dans l'exercice de ce droit de legitime defense sont immediatement 
portees a la connaissance du Conseil . . . et n'affectent en nen la pouvoir et le devoir 
qu'a le Conseil, en vertu de la . . . Charte, d'agir a tout moment de la maniere qu'il 
judge necessaire pour maintenir ou retablir la paix et la securite internationales. 81 

82 

The right of self-defense, however defined, arises when there is an "armed at- 
tack," under the English language version, or under the French version when 
there is an "agression armee" which connotes a broader range of activity or situa- 
tions triggering a right of self-defense. 

Both versions and those in the Chinese, Russian and Spanish languages are 

84 

equally authentic. However, since the languages in which the drafting was done 
were English and French, Goodrich and his associates argue that more weight 
should be given the English and French texts and, if there is a discrepancy between 
the two, the interpretation most likely to be correct would be that based on the lan- 
guage of the text that was originally adopted. Under this view, since Article 5 1 is 
the result of a UK, i.e., English language, proposal, the "armed attack" phrase of 
the English language version should prevail. 

Linnan has advocated using the Vienna Convention on the Law of Treaties to 

87 

guide analysis of the relationship between Articles 2(4) and 51. The same ap- 
proach might be taken for the situation of equally authoritative texts where words 
chosen for versions in differing languages have different meanings. The Vienna 
Convention, article 33, provides in pertinent part: 

1. When a treaty has been authenticated in two or more languages, the text is 
equally authoritative in each language. . . . 

3. The terms of the treaty are presumed to have the same meaning in each au- 
thentic text. 

4. . . . [W]hen a comparison of the authentic text discloses a difference of mean- 
ing which the application of articles 31 and 32 does not remove, the meaning 



World Public Order 115 



which best reconciles the texts, having regard to the object and purpose of the 
treaty, shall be adopted. 

Articles 31 and 32 of the Convention provide: 

31. General rule of interpretation 

1. A treaty shall be interpreted in good faith in accordance with the ordinary 
meaning to be given to the terms of the treaty in their context and in the light 
of its object and purpose. 

2. The context for . . . interpreting] ... a treaty shall comprise, in addition to the 
text, including its preamble and annexes[.] . . . 

3. There shall be taken into account, together with the context . . . 

(b) any subsequent practice in the application of the treaty which establishes 
the agreement of the parties regarding its interpretation; 

(c) any relevant rules of international law applicable in the relations between 
the parties. 

4. A special meaning shall be given to a term if it is established that the par- 
ties so intended. 

32. Supplementary means of interpretation 
Recourse may be had to supplementary means of interpretation, including the 
preparatory work of the treaty and the circumstances of its conclusion, ... to confirm 
the meaning resulting from the application of article 3 1 , or to determine the meaning 
when the interpretation according to article 31: 

(a) leaves the meaning ambiguous or obscure; or 

(b) leads to a result which is manifestly absurd or unreasonable. 88 

89 

There have been several theories for interpreting treaties, but Jimenez de 

90 

Arechaga says Vienna Convention principles declare existing law. Although 

91 
other approaches have appeal, the Convention's mainstream approach will be 

the principal path of analysis. 

92 

Article 31(1) "establishes . . . the 'golden rule' of interpretation [:]" Give a 
treaty its ordinary meaning in its context and in the light of its object and purpose. 
Article 3 1 (2) further defines the context to include the treaty preamble. Along with 
the context these are relevant, for this purpose: subsequent practice establishing 
the parties' agreement as to its interpretation, Article 31(3)(b); and relevant appli- 
cable rules of international law, Article 31(3)(a); and a special meaning to a term if 
the parties agree to such, Article 31(4). Therefore, the first task is to examine in- 
trinsic evidence; the second is a gradual progression from this center to more pe- 
ripheral evidence, with a concession to parties' specific intent "if it is established," 
convincingly, "that the parties . . . intended" such. The last qualification does not 
apply, since the problem lies with the meaning of Article 51's wording, for which 
there is no terminological consensus. The problem in terms of Vienna Convention 



116 The Tanker War 



Article 31 analysis boils down to an issue of subsequent practice and relevant, ap- 

95 
plicable international law rules. 

The most recent authoritative pronouncement on the meaning of "armed at- 
tack" — "agression armee" in Article 51 is the Nicaragua Case. The ICJ accepted the 
broader French-language Article 51 version, stating in dictum that the Definition 
of Aggression Resolution, Article 3(g), stated a customary rule; sending armed 
bands, irregulars or mercenaries across a border would be armed attack justifying 
self-defense. (The Court went on to say, however, that supplying arms or other 
logistics across a border was not aggression and that therefore a US collective self- 

96 

defense claim under Article 5 1 was not admissible.) And since the same word — 

97 

"agression" — is used in Article 1(1) and Article 51, the same meaning should be 
imported into Article 1(1) as incorporated by reference in Article 2(4). 

The narrow question is whether there can be armed aggression against ships. 

The Definition of Aggression Resolution, Article 3, declares: "Aggression is 
the use of armed force by a State against the sovereignty, territorial integrity or po- 
litical independence of another State, or in any other manner inconsistent with the 

98 

Charter ... as set out in this definition."' Although it could be argued that "terri- 
torial integrity" in Article 1 includes the "floating territory" of ships, the negotia- 
tors did not address this possibility; they voted down amendments to refer to the 
territorial sea and airspace, although one State (Indonesia) added it by interpreta- 
tive statement. Article 1 only covers armed aggression, and not economic or politi- 

99 

cal coercion; it does not cover threat of force, as distinguished from use of force. 
Article 2 declares a first use of force in violation of the Charter to be prima facie evi- 
dence of aggression, but that the Security Council may determine that no aggres- 
sion has occurred, perhaps because the act(s) or consequence(s) are not that 
serious. The Definition also recites certain per se principles, subject to Article 
2's first-use and de minimis principles, in Article 3, which provides in part: 

Any of the following acts, regardless of a declaration of war, shall, subject to and in 
accordance with the provisions of article 2, qualify as an act of aggression: 

(d) An attack by the armed forces of a State on the land, sea or air forces, or marine 
and air fleets of another State . . . 

Article 3(c) says that blockading coasts or ports by armed forces is aggression. 
The ICJ has stated that article 3(g), denouncing sending armed bands across a bor- 
der, states custom; one commentator says all of Article 3 probably restates custom, 
although others disagree. The Article 3 list is nonexclusive. 

An ambiguity remains as to the phrase "marine and air fleets." Does this in- 
clude a single merchantman flagged under a target State's flag? Article 3(d) covers 
attacks on a warship, a warship formation, or a group of merchantmen, e.g., a 
fishing fleet. Attacking a single neutral warship is never permitted in territorial 



World Public Order 117 



waters, and by well-established custom on the high seas as well. Choice of the 
expression "fleets" for article 3(d) was done "advisedly, ... to exclude from the pur- 
view of the Definition the use of force [by an attacking State] against a single or a 
few commercial vessels . . ., especially when they enter [attacking State] jurisdic- 
tion," according to Dinstein, who cites Broms, chair of the UN committee that 

107 

produced the Definition. Dinstein concludes that "A reasonable degree of force 
(in the form of search and seizure) may be legitimate against foreign merchant 

108 

ships even on the high seas." However, Broms did not refer to merchant ships 

109 

generally; he and the Committee referred only to fishing vessels and fleets. 
Dinstein's view appears inconsistent with what the Committee actually decided. It 
is also clear that coastal States, engaged in legitimate policing of their coastal wa- 
ters (e.g., territorial sea, contiguous zone, EEZ) do not commit aggression under 
article 3(d) when they pursue, and possibly attack, merchant ships for viola- 
dons. 110 

The Dinstein view is inconsistent with what the UN Committee actually de- 
cided. The UK Committee delegate pointed out during negotiations that Article 
3(d) would not impugn coastal State action "in accordance with international law for 
the legitimate enforcement of its authority." A saving clause describing coastal 
State rights had been omitted from Article 3(d). Including it would 

risk that such a clause might be taken to imply that any vessel . . . which ventured 
within the jurisdiction of another State might be subjected to any degree of force — 
even an armed attack — that the State might choose to inflict on it in the exercise of its 
own authority, which was not the . . . Committee's intention. 111 

Thus, far from indicating that attacks on independently-sailing merchant ships 
could not trigger a self-defense response, the Committee was trying to avoid the 
problem of unlawful attacks in the first place. There is no indication that the Com- 
mittee even considered self-defense in this context. The Committee did not intend 
to exclude attacks on independently-steaming merchantmen from the Definition, 
for which self-defense or other legitimate response(s) might be appropriate. 

1 1 7 

As incidents like the Mayaguez seizure demonstrate, to say that not all at- 
tacks on merchant ships can result in an aggression claim justifying a self-defense 
response is dangerous business indeed. Even as a self-defense response that is not 
proportional can become aggression, not every attack on an independently-sail- 
ing merchantman should be shielded from an aggression claim. Some merchant 
ships, e.g., passenger liners, are forbidden targets in any case; even with modern 
commercial shipping's highly automated nature, and the resulting relatively low 
size of crews, a deliberate attack on a single cargo merchantman can involve many 
people's lives. The liner exception does not cover the situation of other vessels car- 
rying hundreds of passengers, e.g., ferries or work-boats transporting employees of 
offshore drilling rigs, nor does it cover a common situation of cargo vessels with a 



118 The Tanker War 



small passenger manifest. Moreover, the reality of merchant traffic on the seas is 
that no merchant ships, unless they are fishing vessels or tugs and tows, ever sail in 
company. A view that all independently-sailing merchant ships could be attacked 
without the attacking State risking being branded an aggressor would mean that 
no merchant ship would be safe, under any circumstances, since all sail independ- 
ently. Presumably an all-out, simultaneous, world-wide attack on all ships 
flagged under the target State would qualify for Dinstein, but that hypothetical 
lacks reality. 

The "fleets" expression does not follow the principles of prior treaty law, 
whether ratified or not. These agreements point to coverage of attacks on single 
ships as enough to trigger a risk of a charge of aggression if the act or its conse- 
quences are serious enough, under the Definition Resolution formula. Charter 
era State practice buttresses this conclusion. The Resolution includes blockade as 

• 117 

a qualifiedper se instance of aggression. As a practical matter, blockade runners 
do not try to avoid interception in groups. If it is assumed that the law of blockade 
still includes an ultimate right to attack and destroy merchant vessels trying to 

118 

evade blockade, and it is submitted that this remains the case, then illegal use of 
blockade includes the illegal destruction of blockade runners as part of unlawful 
aggression. And if such be true in the context of blockade, then it is likewise true 
that illegal destruction of a single merchantman, sailing independently, would be 

119 

likewise susceptible to condemnation, if the situation is serious enough, under 
the Resolution formula. Even if attacking a single merchant ship does not come 
under Article 3(d)'s "marine . . . fleets" principle, prior treaty law and State practice 
since 1945 points toward a strong potential of a finding of aggression for such an 
attack. 120 

The record of treaties negotiated before the Charter era and immediately after 
1945 is mixed as to whether attacks on shipping constitute aggression; no recent 

agreements have been concuded on the issue. Some multilateral and bilateral 

• 121 122 

agreements categorize them as acts of aggression; ' many do not. ' For purposes 

of this analysis, however, it is most significant that Iran bound itself twice, and 

Iraq once, to multilateral agreements specifically defining attacks on "vessels or 

123 

aircraft of another State" as acts of aggression. Did "vessels" include merchant- 
men as well as State ships? Contemporary USSR proposals in the League of Na- 
tions, similar to the Definition list without the latter's nonexclusivity clause, 
spoke of "knowingly attacking the naval or air forces of another State." Ap- 
plying general principles for interpreting ambiguous treaty terms, it would seem 
that the unmodified words, "vessels" or "ships," meant not only State vessels, i.e., 
warships, but merchantmen as well. The Vienna Convention on the Law of 
Treaties, Article 31(1) restates a customary rule: "A treaty shall be interpreted in 

good faith in accordance with the ordinary meaning to be given the terms ... in 

125 
their context and in the light of its object and purpose." The ordinary meaning 



World Public Order 119 



of "ship" or "vessel," unadorned by an adjective, is just that — it connotes all seago- 
ing conveyance, military or commercial. This is reinforced by the context of the 
era. The USSR, a primary promoter of an aggression definition, was a socialist, 
command economy, in which the State owned all commercial ships through trad- 
ing companies. At the time the USSR claimed an absolute theory of sovereign 

1 jn 

immunity, as distinguished from capitalist countries' acceptance of modified, 

128 

restricted forms of immunity. Although the USSR might have advocated a 

129 

more narrow theory for aggression in League debates, when treaties were nego- 
tiated with other, often capitalist, States, these conventions' coverage was broaden 
enough to cover all ships. Other countries' positions cannot be determined with 
certainty, but Comments to the Harvard Draft Convention on Rights and Duties of 
States in Case of Aggression, proposed exclusively by US (and therefore capitalist) 

130 

commentators, support a view that "vessel" or "ship" meant all vessels or ships, 

131 
regardless of relationship with a registry State. Moreover, including attacks on 

merchantmen within a definition of aggression would further the treaties' policies 

in minimizing opportunity for legally-sanctioned violence. 

Language of multilateral agreements contemporaneous with the Charter were 

inconclusive or would appear to have drifted toward a view that only attacks on 

warships would constitute acts of aggression; however, examples given were 

132 
non-exclusive. Thus there is some support in treaties for a view that States have 

considered attacks on single merchantmen an act of aggression; this is particularly 

1 33 

true for Iran and Iraq, whose treaty record is clearer than that of most States. " To 
be sure, the law of treaties says that treaties cannot create rights for third States un- 
less these States accept them, but treaty rules can state custom. 

State practice since 1 945 supports a view that attacks on single ships can amount 
to aggression. During the 1973 Yom Kippur War, the Syrian navy seized Romantica, 

135 

an Italian liner, later released upon the Italian ambassador's intervention. Loss 

of the neutral Venus Challenger, sunk with all hands as a victim of an Indian missile 

1 36 
during the 1971 India-Pakistan conflict, has been severely criticized. The 

United States protested and responded with force to Cambodia's seizure of the 

US-flag Mayaguez in 1975, claiming self-defense. A US Court of Appeals found 

Argentina liable for its attack on Liberian- flag Hercules outside a declared war zone 

during the 1982 Falklands/Malvinas War. 138 

If today diminished in value because of failure of ratification or acceptance 

of the final text, draft multilateral treaties or single-action proposals carry some 

weight as a secondary source because of their authors' eminence as scholars. 

These sources support a view that "vessels" include merchantmen sailing alone. In 

this regard the 1933 USSR proposal is interesting; it would have said the first attack 

on another State's "naval or air forces" was an act of aggression. The full League 

Committee's 1933 draft Act Relating to the Definition of the Aggressor changed 

this to the first attack on another State's "vessels or aircraft," some indication of 



120 The Tanker War 



accepting a broader definition of targets that could trigger a claim of aggression. 
The 1939 Harvard Draft Convention on Rights and Duties of States in Case of Ag- 
gression says that a single merchantmen, if attacked, could trigger a claim of ag- 
gression. Few Charter era commentators have expressed a view, 
independently of the "fleets" expression in Definition of Aggression, Article 
3(d), perhaps because it is now obvious that an initial attack on a neutral mer- 
chant ship, traveling alone, can be an act of aggression. If we presume availabil- 
ity of the 1977 Hague Recueil or its equivalent in Baghdad and Tehran when the 
Tanker War began, the legal rationale for destruction and loss of life may be predi- 
cated on this view, at least in part. 

Appraisal. Although the record of claims and counterclaims is not clear, it is 
submitted that an attack on a merchant ship, steaming independently on lawful 
purposes, can be an act of aggression that can merit a self-defense response. An at- 
tack on a man-of-war, sailing alone, can also be an act of aggression. Attacks on a 
formation of warships, or on a fleet of merchantmen (e.g., a fleet of fishing trawlers) 
can be aggression that will support a self-defense response. As McDougal and 

148 

Feliciano and others have shown, not every "attack" is serious enough to merit a 
self-defense response, and a self-defense response must be necessary and propor- 

149 

tional in any event. A target State may choose to make no response, or to counter 
with retorsions or non-force reprisals, perhaps in connection with self-defense 
measures. Moreover, some attacks may be subject to defenses, e.g., mistake, as in 

the Stark and Airbus cases. Any proportional self-defense response to an assault 

152 
perceived at the time as an aggressive armed attack is legitimate. 

Thus, the logical corollary of the principle in Article 2(4), prohibiting the threat 
or use of force against the territorial integrity or political independence of a State, 
or in any manner inconsistant with the UN's purposes, is the principle ex- 
pressed in Article 2(3): "All Members shall settle their international disputes by 
peaceful means in such a manner that international peace and security, and justice, 
are not endangered." A legacy from the League Covenant era, Article 2(3)'s lan- 
guage has been restated in many international agreements. The substance of 
Article 2(3), commingled with the parallel policies of the Charter, Chapter VI, Ar- 
ticles 33-36, has also been restated in the Friendly Relations Declaration. 

b. The Inherent Right of Self -Defense Under Article 51; Other Concepts. As noted 

above, Article 51's French language version (agression armee) connotes a broader 

158 
meaning than the English language phrase, "armed attack." (Both versions, 

along with the other official languages, are equally authentic but a commentator's 

159 
analysis may point to the English language version as the one to follow.) An- 
other difference in meaning between Article 51's two versions is the English lan- 
guage phrase, "inherent right of . . . self-defense," which in French becomes "droit 
naturel," i.e., the connotation of "natural right." Thus there is an "inherent" or 



World Public Order 121 



"natural" right to self-defense by a State whenever there is armed aggression 
against that State. The problem is compounded by use of English in important 
treaty negotiations for 20 years before the Charter negotiations. 

During negotiations leading to the Pact of Paris, which outlaws war as an in- 
strument of national policy, US Secretary of State Frank B. Kellogg sent identi- 
cal notes to participants, stating that the draft Pact did nothing to "restrict or 
impair in any way the right of self-defense inherent in every sovereign State and 
implicit in every treaty." Self-defense was characterized as "inalienable" and a 
"natural right," which "[e]very nation is free at all times and regardless of treaty 
provisions" to exercise. Great Britain had expressed a similarly broad view of 
the matter earlier, as had other States. Ultimately all parties accepted or 
"noted" the US interpretation when the Pact was signed August 27, 1928. 

About a year earlier the PCIJ had decided the Lotus Case, which strongly recog- 
nized States' sovereignty to act as they chose in the absence of law. (State sover- 
eignty, although occasionally assailed by some, remains a fundamental principle 
of international law.) Under Lotus, States should have been as free to act within 
the law of self-defense as it then stood when their sovereignty was threatened by an 
act of war that was a violation of law; i.e., there was no law to support the act. Thus if 
it be assumed that the self-defense gloss on the Pact of Paris carries over into the 
UN Charter drafting less than a generation later, there is at least the possibility of a 
latent ambiguity, if Article 51's English or French version carries with it a differ- 
ent and broader right of self-defense than the other, a right extending back into 
pre-Charter understandings of the scope of the right. The same issue lurks in the 
difference between "armed attack" — with its connotation of actual, physical as- 
sault — and "aggression armet" "armed aggression," connoting a lower threshold 
for triggering a right of self-defense. 

We have seen how Linnan's analysis, employing interpretation methods in the 

Vienna Convention on the Law of Treaties, was helpful in determining the mean- 

i fn 
ing of "armed attack" — "agression armee" in Article 5 1 . Since the same issues are 

at stake with respect to the point on the "inherent right" -"droit naturel" dichot- 
omy, that method will be employed to determine the meaning of this phrase. 

The most recent authoritative pronouncement on the meaning of "inherent 
right" - "droit naturel" in Article 5 1 is the Nicaragua Case, where the ICJ accepted 
the broader French version of Article 5 1 to state that the right of individual or col- 
lective self-defense is a matter of customary international law, as evidenced in the 
Friendly Relations Declaration interpretation of Article 5 1 . Sohn has convinc- 
ingly noted the similarity of language between the understandings to the Pact of 

169 

Paris and the "droit naturel" language of the French text of Article 5 1 . The Court 

170 

accepted the broad view of "inherent right" advocated by Bowett and others. 
With respect to the "armed attack" - "aggression armee" issue, the Court agreed with 

171 

the Definition of Aggression that sending armed bands, irregulars or mercenaries 



122 The Tanker War 



across a border was aggression, where this amounted to an actual armed attack by 

172 

regular forces. The Case involved incursions across land borders, but it is rea- 
sonably clear that the Court accepted the French text's slightly broader defini- 

1 73 

tion. Therefore, it may be inferred that other forms of armed attack listed in the 
Definition, e.g., naval blockade, also declare customary law. And if this is so, 

1 75 

there may be other forms of aggression that customary law now defines as such 
in a particular context to justify a self-defense response. The Court did hold, how- 
ever, that cross-border assistance to rebels in providing weapons, logistics, or other 
support was only a threat of use of force or perhaps intervention into the affairs of 
another State, and therefore not enough to be characterized as an aggression so as 
to justify action by the target State in self-defense. Two dissents pointed out that 
some situations involving logistics might be characterized as an armed attack, i.e., 

177 

aggression. The Court declined to consider anticipatory self-defense issues; the 

178 
parties had agreed it was not an issue. 

Although the Court's opinion is a secondary source and has no precedential 

179 

value in the common-law sense, its recitation of customary principles is, how- 
ever, entitled to great respect. Other Charter era instances of customary claims for 
national self-defense, particularly in the context of naval warfare, are ambiguous. 

The Definition of Aggression does not enlarge or contract the right of self-de- 
fense: "Nothing in this definition shall be construed as . . . enlarging or diminish- 
ing the scope of the Charter, including its provisions concerning cases in which the 
use of force is lawful." States may respond to aggression in self-defense or by 

181 • • 182 

other appropriate means, e.g., retorsion or nonforce reprisals. 

There is no evidence of a special meaning given Article 51 by the intent of the 

183 

parties. Thus recourse to supplementary means of interpretation under Vienna 
Convention Article 32 is necessary, i.e., examining preparatory works. To be sure, 
use of preparatory works should not be considered as a second phase or as a resort 

184 

when ambiguity or obscurity remains, but they do assume increased impor- 

... joe 

tance when Vienna Convention Article 31 analysis yields mixed results. 

The Charter drafters negotiated against a background of the League of Nations 

Covenant and the interwar years. The Dumbarton Oaks Proposals for the Charter 

1 oz: 

had no equivalent to Article 51, and the negotiating history of the conference 
that produced the Charter stated in part that "The unilateral use of force or similar 
coercive measures is not authorized or admitted. The use of arms in legitimate self 

187 188 

defense remains admitted and unimpaired." ' (The Nicaragua Case has demol- 
ished the opposing argument, that the right of self-defense is wholly confined to 

189 

Article 51 which preempts any customary norm.) 

If the right remains "admitted and unimpaired," reference must be had to the 
latest major agreement before the Charter concerned with the issue, i.e., the Pact of 

190 

Paris still in force with about 69 parties as of January 1, 1998, and negotiations, 
including general understandings, before signature and ratification. There 



World Public Order 123 



were no reservations concerning self-defense attached to the Pact; diplomatic cor- 
respondence constituting part of that treaty's preparatory works were interpreta- 

192 

tions, i.e., understandings. Resort to analysis by analogy under the Vienna 

193 

Convention on the Law of Treaties confirms that the diplomatic correspon- 
dence on the Pact contained understandings, not reservations. The Vienna 
Convention, Article 2(1 )(d), says a reservation is "a unilateral statement, however 
phrased or named, made by a State when signing, ratifying, accepting, approving 
or acceding to a treaty, whereby it purports to exclude or to modify the legal effect 
of certain provisions ... in their application to that State." The US notes to pro- 
spective parties were transmitted June 23, 1928, two months before signature of 
the Pact. Ratifications were exchanged much later. Moreover, since self-de- 
fense was not mentioned in the Pact, the diplomatic notes, even if they might oth- 
erwise be considered reservations, could not "exclude or modify the legal effect of 
the treaty " In effect, then, the notes were "clarification[s] of the State[s'] posi- 

197 

tion," or "declarations of a purely explanatory character." The contemporary 
position of two US Secretaries of State was that the self-defense corollary to the 

198 

Pact was an understanding, not a reservation. 

Appraisal. The Nicaragua Case confirms that a separate customary norm for 

• • 199 

self-defense may exist alongside the Charter recitation in Article 5 1 . Article 5 1 
says the right of individual and collective self-defense is "inherent," the same word 
used in the reservations for the Pact of Paris. Such being the case, whether 
Article 5 1 applies to a situation, or whether a customary norm applies, the result is 
the same. The right of individual and collective self-defense as understood and 
practiced before ratification of the Charter continues unabated, subject to applica- 
tion of conditioning factors, e.g., developing custom, perhaps stated in resolutions 

202 

(the Definition of Aggression comes to mind); treaties, and other sources of 
law, including jus cogens norms. If the right of individual and collective 
self-defense has risen to the status of a jus cogens norm, as some have claimed, e.g., it 
takes priority over other treaty norms like Charter provisions not having;ws cogens 

205 

status. If another/ws cogens norm, e.g., the right to territorial integrity and politi- 
cal independence recited in Charter Article 2(4), is involved, a jus cogens right of 
self-defense must be balanced against the other jus cogens norm(s). 

i. Individual Self-Defense. When commentators' views and Article 51 's interpre- 

207 

tation through treaty canons analysis are considered, a relatively broad right to 
self-defense has developed. "U.N. practice in Art. 51, composed as it is of scanty, 
vague and contradictory elements, says nothing, or at least nothing clear, about the 

70S 

grounds for self-defense." Besides maritime conflicts, only a handful of situa- 
tions have involved published self-defense claims by a participant. In one of these, 
the Security Council rejected Israel's anticipatory self-defense claim for its raid on 
an Iraqi nuclear reactor. 



124 The Tanker War 



In the Corfu Channel Case, referred to the ICJ by the Council, the Court said a 
second passage of UK warships, ready for action if Albania again tried to use force 
to oppose passage, was not illegal because of Albania's prior Channel mining and 

21 1 

resulting loss of British lives and ships. Waldock interpreted the Court's ap- 
proving UK readiness for Albanian attack as legitimate preparation for imminent 

212 71 3 

threat of attack. Using force to defend the formation would have been legal. 
(The case also decided that the United Kingdom could not invoke forcible 
self-help, i.e, necessity, to justify use of force; this was held not legitimate in the 
Charter era.) The decision did not mention Article 5 1 , probably because Al- 
bania was not a UN Member when the Court's jurisdiction was invoked. The 
decision was based entirely on customary law. Although this aspect of the case was 
little noticed, Corfu Channel predicted the Nicaragua Case result three decades 
later, when the case confirmed a parallel customary self-defense norm, in the latter 

217 

decision coterminous with Article 51. 

In 1948 the Security Council heard Jewish Agency for Palestine claims, before 
Israel became a State, that Transjordan and Egypt were guilty of aggression. 
Transjordan (now Jordan) and the Arab League claimed self-defense to protect 
Jordanian and Arab nationals and to restore peace, security and law and order. Bel- 
gium raised self-defense in the Council. Council resolutions did not mention 
self-defense. This was also true for Indian and Pakistani self-defense claims in 

219 

the 1948 Jammu and Kashmir dispute. 

The beginning of the Korean War in 1950 again illustrates the point, in the col- 
lective security context. Although Council resolutions condemned North Korean 
aggression as a breach of the peace and called upon UN Members to assist UN 

220 

forces and refrain from assisting North Korea, the Council did not mention the 
right of self-defense. Similarly, the General Assembly's Uniting For Peace Resolu- 
tion, passed when the USSR's return to the Council and subsequent Soviet vetoes 

221 

made Council decisionmaking impossible, does not mention self-defense. (Ar- 
ticle 51 provides for a right of collective as well as individual self-defense, and the 
United States ordered its forces to come to the aid of South Korea before the Coun- 

222 

cil acted. Hence, the Council could have, but did not, approve, disapprove or de- 
fine South Korea's self-defense rights and other States' self-defense efforts for 
South Korea.) 

In 195 1 , the Council rejected Egypt's self-defense claim for closing the Suez Ca- 
nal to, and asserting a right of visit and search of, Israeli merchantmen over two 
and a half years after hostilities had ceased. The resolution also noted that restric- 
tions of passage of goods through the Suez Canal to Israeli ports were denying 
valuable supplies to nations not connected with the conflict, and that these restric- 
tions, together with Egypt's sanctions on ships that had visited Israel ports "rep- 

resent[ed] unjustified interference with the rights of nations to navigate the seas 

223 
and to trade freely with one another, including the Arab States and Israel[.]" 



World Public Order 125 



(Commentators debate whether a right of visit and search during an armistice ex- 
ists.) The resolution was not supported; l there were more seizures and pro- 
tests. The USSR vetoed a second Council resolution. Five years later the 
United Kingdom justified its Suez Canal intervention on self-defense, to protect 
its nationals; France, who combined with Britain in the sea-land operation, did 
not do so. The justification seemed to lack factual foundation; it has been said Gen- 
eral Assembly rejection of the UK argument "cannot be regarded as conclusive to 

228 
its validity in law." 

From February- April 1957, however, US destroyers patrolled the Gulf of Aqaba 

and the Straits of Tiran to successfully prevent Egyptian interference with US flag 

merchantmen bound for Israel; other US warships evacuated US citizens and 

"friendly nationals" on a space-available basis from Haifa, Israel, and Alexandria, 

Egypt. During 1958-59 UK warships escorted and protected British fishing 

trawlers in waters Iceland claimed as territorial sea. The United Kingdom eventu- 

230 

ally withdrew from the "Cod War," and diplomacy resolved the issue. In 1960 
Belgium claimed a right to use force, but not based on self-defense, to extract its na- 

231 

tionals from the strife-torn Congo. 

During the Algeria civil war France's self-defense claim for intercepting and 
boarding or diverting vessels whose cargoes were suspected to be bound for Alge- 
rian rebels was protested vigorously by States whose flag the ships flew. France had 
declared a 20 to 50 kilometer (1 1-28 mile) customs zone off Algeria, but high seas 
interception occurred off Algeria; 45 miles off Casablanca, Morocco; in the Atlan- 
tic Ocean; and in the English Channel. It is not clear whether protests were di- 
rected at interceptions wherever occurring, or for those outside the zone, i.e., in the 
Atlantic and the Channel. Although a large-scale operation (4775 ships visited, 
1330 searched, 192 rerouted, 1 arrested in 1956), ships whose cargoes were seized 
were smuggling arms to the rebels. Although arms were imported from the sea off 
the Algerian coast, others were brought overland through Libya, Morocco or Tu- 
nisia, and then across the Algerian border, perhaps through a third State, e.g., Tu- 
nisia. Sometimes bogus shipping documents were used. Fishermen smuggled in 

232 

arms. The Council did not pass a resolution related to the matter. 

In 1964 no Council resolution responded to a US self-defense claim in the Gulf 

733 

of Tonkin (Maddox-Turner Joy) incident. From the US perspective, other as- 
pects of the Vietnam War were actions in collective self-defense. 

No Council decisions were in resolutions related to Israeli actions against Syria 

235 

(1964, 1966) and Jordan (1966). Israel was condemned for attacks on Jordan 
(1966, 236 1969 237 ) and Lebanon (1968- 82 238 ), however. 239 Although draft reso- 
lutions were presented, the Council took no position during the 1967 Six-Day 
War. During that war Egypt's submarines sank innocent Greek freighters in the 
Mediterranean Sea, one off Alexandria and another further west. Britain 
warned it would join other States to assure Straits of Tiran right of passage. A UK 



126 The Tanker War 



carrier group and the US Sixth Fleet were concentrated in the Eastern Mediterra- 
nean, and a second UK carrier was in the Red Sea, but nothing came of the show of 
force. U.S.S. Liberty, a warship on the high seas in the eastern Mediterranean mon- 
itoring Israeli transmissions during the Egyptian phase of the war, was damaged in 
an Israeli PT boat and aircraft attack. Israel later compensated the United States 
for loss of life, crew injuries and damage to Liberty, without admitting fault. Liberty 
was configured like a merchant cargo ship but flew a US ensign, was painted haze 
grey like all US warships in the Mediterranean, and had traditional US white pen- 
dant numbers on the bow and stern. The attack occurred during daylight. US 
forces were not allowed to retaliate. Israel had declared an imprecise exclusion 
zone, warning ships to keep away from "the coasts of Israel during darkness." As to 
what coasts (e.g., conquered territory also?), the warning was less than clear. An in- 
formal private warning also had been given the United States. No self-defense 
claims were raised. The Liberty attack might be compared with the sinking of the 
Israeli destroyer Eilat, a. belligerent warship steaming on the high seas, during re- 
sumption of hostilities in October 1967 Eilat was destroyed by Styx missiles fired 
from an Egyptian patrol boat in Port Said harbor. The difference was that the 
Eilat attack occurred during a period of hostilities, whereas the Liberty incident 
came out of the blue. 

In 1968 North Korea seized U.S.S. Pueblo, another electronic reconnaissance 
warship, on the high seas, outside of claimed territorial waters. The crew was re- 
turned 11 months later. Other than diplomatic overtures, there was no US re- 
sponse, and the United Nations did not act. 

In the 1965 India-Pakistan conflict, Pakistan declared war, published lists of 
absolute and conditional contraband, and established a prize court, asserting these 
measures were lawful exercises of self-defense. India's position was ambivalent; it 
responded with an absolute contraband list, but it is not clear as to whether India 
acknowledged existence of a war. Since India responded with its contraband 
lists, this at least indicated that India considered itself an object of an armed at- 
tack (if Pakistan would be considered the aggressor), or entitled to respond to Pa- 
kistan's actions, if the latter is taken as a self-defense response to Indian actions. 
Late in 1 966 the General Assembly called on the belligerents to observe the rules of 
warfare. Apparently there were no self-defense claims. 

The 1971 India-Pakistan war was over in two weeks; this conflict also re- 
sulted in attacks on and destruction of innocent merchantmen. After dark, neutral 
vessels were not allowed to approach the Pakistan coast closer than 75 miles. The 
Indian Navy sought to capture or destroy Pakistani merchant ships. More than 115 
neutral ships were inspected; India diverted neutral vessels to Calcutta if they car- 
ried cargo of military significance after India discovered that ship markings and 
names had been changed. Three Pakistani merchantmen were captured; a Libe- 
rian and a Spanish ship were also sunk. Two merchantmen were destroyed by 



World Public Order 127 



Indian surface to surface missiles while at anchor in Karachi roadstead, and the 
neutral inbound Venus Challenger was hit and sunk by a missile 26.5 miles off 
Karachi. All hands were lost. A Pakistani destroyer also went to the bottom that 
night, the target of a Styx missile attack. The cause of destruction of Venus Chal- 
lenger was probably the missiles' "capricious behavior" and malfunction or inade- 
quate operation of guidance systems. A week after destruction of Venus Challenger, 

248 

the Bengal Chamber of Commerce published its 40-mile dawn to dusk warning. 
Again, apparently there were no self-defense claims. 

During the 1973 Arab-Israeli Yom Kippur War, international shipping was 
warned about entering the region of conflict, which first comprised Egyptian and 
Israeli territorial waters, but later further parts of the sea plus Egyptian, Libyan 
and Syrian ports. In October the Syrian navy captured and diverted a Greek liner, 
Romantica, which was released the next day after the Italian ambassador's inter- 
vention. No further such incidents occurred, perhaps because of international 
protests, although Egypt regularly stopped, visited and searched neutral mer- 
chantmen. Third States' reactions varied. African countries unilaterally sus- 
pended or ended diplomatic relations with Israel; Arab countries boycotted oil 
exports to Israel and the United States. Britain embargoed arms, and this largely 
affected Israel; except for Portugal, other Western European nations refused to al- 
low use of their territories for supplying or assisting any belligerent. Arab navies 
adopted a tactic of sheltering beside merchant ships in their harbors after firing 
missiles at Israeli warships. Egypt declared a blockade in the Red Sea and attacked 
but missed an Israel-bound tanker. In the Gulf of Suez Egypt acted to blockade the 
Abu Rudiers-Eilat route used by Israeli-chartered tankers carrying oil from the Is- 
raeli-occupied Sinai fields to Eilat. Responding to Egypt's blockade of the Straits 

249 

of Bab el Mandeb, Israel counter-blockaded the area. Protests regarding Syria's 
attack on Romantica are an indicator that States considered the attack a delict and 
perhaps also subject to self-defense reaction by Greece if Greece had chosen to re- 
spond with proportional force. 

In 1972 Iceland asserted a 50-mile fishing zone and cut a UK fishing boat's trawl 
wires. A UK frigate deployed outside the zone. The next year UK frigates entered 
the zone after continued Icelandic harassment. Incidents involving UK and Ger- 
man trawlers continued through 1973. In 1972 Britain had sued Iceland in the In- 
ternational Court of Justice, the Court indicated interim measures in 1973, and in 
1974 the Court held that Iceland could not bar Britain from historic waters. The 
parties were admonished to negotiate differences. At about the same time US 
fishermen experienced seizures of boats and crews, mostly off Latin America's 
west coast and in the Gulf of Mexico, by States claiming territorial seas or eco- 
nomic zones beyond those claimed by the United States. The US reaction was an 
insurance system to secure crews' and boats' releases, coupled with US diplomatic 



128 The Tanker War 



251 

protests. Some countries' fishing boats were attacked in Western Hemisphere 

252 

waters. There were no claims of self-defense in responses. 

In 1973, responding to US assistance to Israel during the Yom Kippur War, 
Libya declared the Gulf of Sidra below 32 degrees 30 minutes North latitude (the 
"Line of Death") as Libyan internal waters. The United States and other countries 

253 

protested; only a few States have recognized the claim since then. The United 
States began challenging the claim by warships' use of the Gulf, establishing a for- 
mal Freedom of Navigation (FON) program in 1979. During a 1981 FON exer- 
cise, two Libyan air force jets launched missiles against Navy aircraft, which 
dodged the missiles and downed the Libyan planes. The United States asserted a 
right of self-defense. Libya escalated threats against US warships and praised ter- 
rorists who hijacked the Italian liner Achille Lauro in 1985. Further US FON exer- 
cises were undertaken in the Gulf, including one below the Line of Death. US 
NOTMARs and NOTAMs published these exercises. In 1986, after Libyan 
land-based missiles were launched against Navy aircraft flying in international 
airspace but below the Line, and Libyan aircraft penetrated an announced exercise 
area, the FON force commander declared any Libyan military forces leaving Lib- 
yan territorial waters or airspace and threatening US forces would be considered 
hostile. Thereafter, when Libyan missile patrol boats headed toward US forces, 
and Libyan shore-based target acquisition radars were activated "with the evident 
object of firing upon U.S. aircraft," the boats and radars were destroyed or dam- 
aged. The boats were not attacked when seeking refuge alongside a neutral mer- 
chantman or engaging in search and rescue operations. The United States claimed 

255 

a right of anticipatory self-defense. 

Although the United States notified the Security Council of its self-defense re- 

756 

sponses in the 1975 Mayaguez incident, when US naval aircraft were attacked by 
Libyan aircraft over the Gulf of Sidra in 1981, and in 1986 when the United States 

responded to Libyan patrol boat advances, the Council passed no resolutions on 

257 
the situations. 

In 1981 US forces operated under the recently revised Peacetime Rules of En- 
gagement (ROE), which provided "word picture[s]" giving commanders listings 
of military indicators of hostile intent to consider in self-defense, i.e., when there 
was a demonstration of a hostile intent to attack that could justify response in an- 
ticipatory self-defense. Although ROE might authorize units to respond to the 
limits of principles of self-defense, including anticipatory self-defense, reaction in 
a given situation might not rise to the line of permissible responses under the law 
of self-defense. To the extent permitted by law, national policy and operational 
plans and orders, force commanders also have discretionary judgment to make 
other responses. Although US ROE have been classified in most cases, it is com- 
monly known that US force commanders always have the obligation to defend 
their unit(s). Failure to observe restrictive national ROE in protecting a unit under 



World Public Order 129 



a legitimate claim of self-defense cannot result in a counterclaim of a violation of 

258 

the law of self-defense. In other words, ROE-based responses may articulate a 
claim of self-defense; if the ROE response is more restrictive than the law of 
self-defense might permit, practice under the ROE cannot be interpreted as setting 
the boundaries of self-defense. ROE and the law of self-defense are therefore inde- 
pendent variables, although ROE cannot exceed the boundaries of the law. 

During the 1982 Falklands/Malvinas war, although the United Kingdom based 
its military operation on Art. 5 1 , no Council resolutions passed on the conflict took 

259 

a clear position on the point. On April 7, 1982 the United Kingdom declared a 
200-mile Maritime Exclusion Zone (MEZ), to be effective April 12, for Argentine 
shipping around the Falklands/Malvinas. On April 23 the United Kingdom estab- 
lished a Defensive Sea Area (DSA) or "defensive bubble" around its task force, 
warning that approach by Argentine civil or military aircraft, warships or naval 
auxiliaries would be dealt with "appropriately." On May 1, when fighting started 
in the islands, the MEZ was changed to a Total Exclusion Zone (TEZ) for ships 
supplying the Argentine war effort. MEZ coverage was extended May 7 to sea areas 
more than 12 miles off the Argentine coast. Argentina had declared a 200-mile De- 
fense Zone (DZ) off its coast and around the Falklands/Malvinas on April 1 3, after 
having protested the UK action. MEZ enforcement capability came on the day it 

?6ft 

was effective, April 12. Presumably Argentina could have enforced its DZ if it 
chose to do so, but after the cruiser General Belgrano sinking, Argentine naval 
forces, except land-based naval aviation and possibly submarines, did not figure in 
the war. On May 1 1 Argentina declared all South Atlantic Ocean waters a war zone, 
threatening to attack any UK vessel therein. Apparently the only neutral-flag ship 
attacked by Argentina in the war zone was Hercules, a Liberian-flag, US inter- 
ests-owned tanker in ballast. Although the USSR belatedly protested lawfulness of 
the UK TEZ, it did apparently not object to the Argentine DZ and observed the 
UK TEZ. The United States had published warnings to US vessels and ships 

762 

owned by US interests, e.g., Hercules, two days before she was hit. On July 12, 
1982, active hostilities in the war ended, but the UK TEZ and economic sanctions 
were continued. Ten days later the TEZ was lifted, but the United Kingdom 
warned Argentina to keep military ships and aircraft away from the islands, declar- 
ing a 150-mile Protection Zone. The TEZ was relatively successful, although 
Argentina succeeded in airlifts to the islands until the last days of the war. Appar- 
ently Argentine sealift efforts failed. 

In the Iran-Iraq war, although the Security Council recognized the right of free- 

265 

dom of navigation and called for protection of the marine environment in a 

266 

context of belligerent and other States' self-defense claims, there was no Coun- 

267 

cil action to take charge of the conflict by decision, as the Charter provides. Both 
belligerents declared defense, war or exclusion zones, and aside from Council 
resolutions calling for recognition of freedom of navigation rights and protection 



130 The Tanker War 



269 

of the environment, the Council did not purport to regulate these. No Council 
resolution explicitly determined the validity of the self-defense claims of Iran or 
Iraq. 

Thus, at least in 1986 when Combacau's analysis was published on Security 
Council practice in defining self-defense, "whatever the official pretence, and per- 
haps the legal situation, the international community is . . . back where it was be- 
fore 1945: in the state of nature; and . . . the notion of self-defense makes no sense 

270 

there." The latter part of Combacau's conclusion is overblown, for we may at 
least draw upon the understandings of the Pact of Paris, as its concepts were car- 

271 

ried forward into Article 5 1 . The 1990-91 Gulf War, the most serious challenge 
to the Council since the Korean conflict, shed no light on the issue. Council Reso- 
lution 661 merely confirmed the right of individual and collective self-defense as 

272 • r 

stated in the Charter. As Combacau intimates, much of this is due to the struc- 
ture and powers of Charter institutions. Action by the Council must be taken with 

273 r 

permanent members' concurrence, and the Soviet veto was a regular feature of 
Cold War politics. However, other countries (including the United States) vetoed 
resolutions when allies, friends or interests were involved. Mindful of this, and 

275 

the "sovereign equality of [UN] . . . Members," it is no wonder that self-defense 
has not figured strongly in Council resolutions, which nearly always have been 
nonmandatory recommendations or calls for action. 

The General Assembly record is also relatively meager. Except for certain com- 
petences not relevant here, the Assembly's function is recommendatory and sub- 

277 

ordinate to the Council on matters related to international peace and security. 
Article 12(l)'s requirement, that the Assembly cannot make a recommendation on 
a matter relating to international peace and security while the Council is seized of 
it, explains the Assembly record in part. Usually States will complain to the Coun- 

278 

cil first, as the Charter provides. While the Council debates the matter, the As- 
sembly is impotent. If the Council acts, even through nonmandatory calls for 
action or recommendations instead of binding decisions under Articles 25 and 48, 
it remains seized of the matter. If vetoes stop Council action on a particular crisis, it 

279 

may still remain seized of the matter, depending on its prior resolutions. On the 
other hand, if the matter comes to the Assembly first, the Assembly may make rec- 
ommendations until the Council takes it up. 

The Assembly's nonmandatory resolutions may recite, and therefore strengthen, 
customary and treaty norms, or may lead to development of new norms, how- 
ever. Certain of these resolutions have asserted claims relative to self-defense. 

General Assembly Resolution 378 (1950), companion to the Uniting for Peace 
Resolution passed during the Korean War, recites these recommendations: 

(a) That if a State becomes engaged in armed conflict with another State or States, 
it take all steps practicable in the circumstances and compatible with the right 



World Public Order 131 



of self-defence to bring the armed conflict to an end at the earliest possible 
moment; 

(b) In particular, that such State shall immediately, and in any case not later than 
twenty-four hours after the outbreak of the hostilities, make a public state- 
ment wherein it will proclaim its readiness, provided that the States with 
which it is in conflict will do the same, to discontinue all military operations 
and withdraw all its military forces which have invaded the territory or terri- 
torial water of another State or crossed a demarcation line, whether on terms 
agreed by the parties to the conflict or under conditions to be indicated to the 
parties by the . . . United Nations; 

(c) That such State immediately notify the Secretary-General, for communica- 
tion to the Security Council and to the Members of the United Nations, of the 
statement made in accordance with [(b)] . . . and of the circumstances in which 
the conflict has arisen; 

(d) That such State, in its notification to the Secretary-General, invite the appro- 
priate organs of the United Nations to dispatch the Peace Observation Com- 
mission to the area in which the conflict has arisen, if the Commission is not 
already functioning there; 

(e) That the conduct of the States concerned in relation to the matters covered by 
the foregoing recommendations be taken into account in any determination 
of responsibility for the breach of the peace or act of aggression in the case un- 
der consideration and in all other relevant proceedings before the appropriate 
organs of the United Nations[.] 281 

That same year the "Peace through Deeds" resolution "reaffirm[ed] that . . . any ag- 
gression ... is the gravest of all crimes against peace and security" and "That 

282 

prompt united action be taken to meet aggression wherever it arises[.]" The 
1970 Friendly Relations Declaration again condemned the threat or use of force, 
declared a war of aggression to be a crime against peace, and added that "States 
have a duty to refrain from acts of reprisal involving the use of force." The Declara- 
tion added, however, that "Nothing in [its terms should] be construed as enlarging 
or diminishing in any way the scope of the provisions of the Charter concerning 
cases in which the use of force is lawful," i.e., in self-defense. 

Specific situations occurring in the Charter era offer little additional guidance 

285 

to the meaning of self-defense. The 1 950 UFP Resolution has been discussed. In 
1966 the Assembly belatedly called upon India and Pakistan to observe the rules of 
warfare, but only as the war wound down. The Assembly condemned the USSR 

787 788 

Afghanistan invasion in 1982 and US action in Grenada the next year. 

Thus it might be said, apart from occasional forays into the field or general 
statements, e.g., the Friendly Relations Declaration, that General Assembly prac- 
tice, even during the UFP Resolution era occasioned by permanent Council mem- 
ber vetoes, has been spotty. The result is that the definition of self-defense remains 
as it was in 1 945 when the Charter was negotiated in the context of the Pact of Paris 
and other midcentury agreements. We are thus left with arguments from history, 
analysis of commentators, and rhetoric from some of the latter. 



132 The Tanker War 



ii. Collective Self-Defense. Article 51 of the Charter permits collective self-de- 
fense under the same terms as the right of individual self-defense. Certain aspects 
of collective self-defense differ from the issue of individual self-defense. However, 
if the foregoing analysis for the right of individual self-defense is correct, i.e., that 
ultimate resort to the context of the Charter's drafting is necessary, then similar 
analysis is necessary to appraise collective self-defense. 

Unlike individual States' right of self-defense, which is of ancient lineage, the 
notion of collective self-defense in the sense of the Charter began with the Con- 
gress of Vienna system (1815) established at the end of the Napoleonic wars and 

289 

continues on a parallel path to this day. Although there have been numerous 
collective self-defense agreements concluded since 1945, none of these were di- 
rectly at issue in the Tanker War. North Atlantic Treaty countries operated to- 
gether during the conflict, but the territorial limits of the Treaty meant they 
operated under principles of "informal" self-defense, analyzed below. Similarly, 

291 

two ANZUS Pact members, Australia and the United States, were Tanker War 

292 

participants; ANZUS did not apply, covering only Pacific area defense. Warsaw 
Pact countries were participants, the USSR through naval deployments, aid and 

293 

diplomacy and other Soviet Bloc nations through weapons sales to belligerents, 
but there was no perceived direct threat to or attack on any Pact party except for at- 

294 

tacks on USSR-flag merchantmen, and the Pact was not invoked. Many Arab 
League States were involved in the war, but a combination of internal dissension 

295 

within the League, at least at the beginning of the Tanker War, and an apparent 

296 

interpretation that this regional defense treaty pointed only toward outside ag- 
gressors resulted in its not being invoked against either belligerent. The Arab 
League seems to have functioned during the Gulf War as a regional arrangement 
that attempted to maintain international peace and security pursuant to Article 52 

297 

of the Charter. Although late in the Tanker War the Gulf Cooperation Council 
Summit approved a comprehensive security strategy that some have said amounts 

298 

to a collective self-defense pact, there has been no formal publication of this ar- 
rangement as a treaty. The strategy can be viewed as an example of informal collec- 

299 

tive self-defense, also permissible under the Charter. 

The Charter thus "contains the first real attempt to reconcile the imposition of 
duties to maintain international peace and security with the problem posed by the 
freedom which each sovereign State normally would have[,] to decide when and 
how such a duty may be fulfilled." Given the context of the preparation of Arti- 
cle 5 1 while the Act of Chapultepec was going forward to signature, McDougal 
and Feliciano are correct in saying that the essence of the right of collective self-de- 
fense lies in maintaining international peace and security through collaborative 

302 
arrangements among States. 



World Public Order 133 



/. Other Regional Organizations: Article 52 of the Charter. The structure of the Charter 
and practice since 1945 confirm theMcDougal-Feliciano view. Article 52(1) of the 
Charter provides: 

Nothing in the present Charter precludes the existence of regional arrangements 
or agencies for dealing with such matters relating to the maintenance of international 
peace and security as are appropriate for regional action, provided that such 
arrangements or agencies and their activities are consistent with the Purposes and 
Principles of the United Nations. 

Thus, "the Charter basis of collective self-defense arrangements in Article 51 does 
not exclude the possibility that other provisions of the treaties and activities of the 

303 

agencies in question came under Article 52." Indeed, "[fjrom the discussions 
leading up to the approval of the Charter, . . . regionalism was considered primarily 
in connection with the maintenance of international peace and security." 

Although formed for other purposes in 198 1, the Gulf Cooperation Council had 
moved from its initial stated goal of cooperation to protect internal security to a 

305 

policy of cooperating in economic and defense security by the end of the war. By 
the end of the war GCC members were cooperating among themselves for mine 
suppression and other measures, and with other States with navies in the Gulf. 

The Arab League also partook of a collective defense treaty and economic coopera- 

307 
tion system. 

II. Practice During the Charter Era; "Informal" Collective Self-Defense. Prior practice 
confirms the view that a right of informal self-defense, besides Article 51's confir- 
mation of the inherent right of collective self-defense, exists in the Charter era. 
Although there was some objection to the concept of regional defense arrange- 

308 

ments, a number of these agreements, articulating the principle that an attack 

309 

on one member is an attack on all, have been concluded and remain in force. 
State practice has also confirmed regional arrangements, sometimes ad hoc, to deal 
with threats to the peace, aggression or other forms of breaches of the peace. There 
have also been bilateral or multilateral assertions of collective self-defense, often 
without formal prior treaty arrangement. 

Lack of a definition of self-defense by the Council or the Assembly in the Ko- 

310 

rean War has been noted. If it is assumed that UN operations (primarily US di- 
rected) after Soviet vetoes began in 1950 could not have been grounded in the UFP 

31 1 

Resolution, since General Assembly resolutions have no binding effect, one 
theory of the multilateral operations in Korea after the USSR veto is "informal" 
collective self-defense, i.e., cooperating countries pooled forces to resist North Ko- 
rea's continued aggression and the PRC incursion. The same might be said for 
contemporaneous US naval operations between Taiwan and the China 



134 The Tanker War 



312 

mainland. For the United States and South Korea or Taiwan, bilateral defense 
treaties replaced informal arrangements in 1953 and 1954 respectively. 

The 1951 ANZUS Pact was memorialized Australia-New Zealand-US practice 
after World War II and during the Korean War, another example of informal col- 
lective self-defense. 

In 1962, OAS countries, under US leadership, relied on Charter Article 52, 
which permits regional organization resolution of disputes, to enforce a naval 
quarantine around Cuba during the Missile Crisis. The US proclamation estab- 
lishing the quarantine, besides citing the Rio Treaty, also relied on a US Congres- 
sional resolution recognizing the threat. The proclamation was specific as to 
cargoes to be halted, e.g., missiles, bombs, bomber aircraft, warheads, and support 
equipment, "and any other classes of material hereafter designated by the Secre- 
tary of Defense [to] effectuate" the proclamation. It exempted other cargoes, e.g., 
foodstuffs and petroleum, and declared neutral rights would be respected. No 
blockade was declared, and the proclamation limited use of force to situations 
where directions under the quarantine were disobeyed if reasonable efforts were 
made to communicate directions to an interdicted vessel, "or in case of self-de- 
fense." (The Rio Treaty authorized "partial or complete interruption of economic 
relations or of . . . sea communications; and use of armed force[,]" among other 
measures, parallelling Charter Articles 41-42). While some said self-defense was 

317 

the proper claim, and others later asserted that the Nicaragua Case would have 

31 8 

held the quarantine action a matter of anticipatory self-defense, the OAS-US 
1962 claim was based on Article 52 and not Article 51. The point is that Article 52 
organizations can organize for informal collective self-defense in situations threat- 
ening regional security without benefit of an Article 51 collective self-defense 
treaty. The Missile Crisis thus might arguably be further precedent for informal 
self-defense under the Charter. 

The 1964 attacks on U.S.S. Maddox and Turner Joy (the Gulf of Tonkin Inci- 

319 

dent) have been analyzed. The conflict connecting these incidents, the Vietnam 
War, is an example of a claim of informal collective self-defense. The US position 
during the Vietnam War was that it and South Vietnam (RVN) were jointly resist- 
ing North Vietnamese aggression and therefore were acting in self-defense. (There 

370 r 

were other views; e.g., it was a civil war.) During the conflict, patrol areas for Op- 
eration Market Time, which sought to deny seaborne supplies to RVN opponents, 
was extended to 30 miles off the South Vietnamese coast. Initially Market Time 
operations took place in a 12-mile defensive sea area. North Vietnam used small 
coastal fishing vessels to support military logistics in the South. Fishermen and 

321 

coastal traders were allowed to pass when on legitimate business. In 1 972 a mine 



quarantine program in North Vietnamese waters sought to seal North Vietnam 

377 

ports. Its antecedent had been the RVN's attempted quarantine to stop sealifted 
supplies coming to the Viet Cong through the Gulf of Siam and the Mekong Delta. 



World Public Order 135 



A RVN destroyer sank a North Vietnamese trawler, believed to be carrying ammu- 

323 
nition, in 1972 during these operations. 

During the war the United States used Military Sealift Command vessels, US 
flag charters and occasionally foreign-flag vessels to deliver war material. Several 
ships were hit; two were sunk by Viet Cong attacks while in South Vietnamese 
coastal waters. The Viet Cong seem not to have discriminated between vessels car- 
rying war material and civilian-oriented cargoes, e.g., cement. US antisubma- 

325 
rine protection was given high value ships, e.g., troop carriers. While some have 

claimed SEATO may have applied, and its formal treaty obligations remain in ef- 
feet, its supporting organization had been dismantled by 1975, and US assis- 
tance to South Vietnam might be characterized as another example of informal 
collective self-defense. 

On the face of it, the Tanker War was a bilaterial conflict. However, as analyzed 

377 

above, some States or groups of States acted to favor one (or in some cases both) 
of the belligerents throughout the war. As in the case of the Falklands/Malvinas 
War (1982) and unilateral US help for Britain and the multilateral EC embargo on 

328 

Argentine goods, this kind of participation arguably could be said to recognize 

329 

an interim state of nonbelligerency in the Charter era. The same sort of informal 
participation and influences or attempted influences came through organizations 
aligned along geographic lines (the Gulf Cooperation Council), common defense 
interests elsewhere (NATO), common economic interests (the EC and the Group 

330 

of Seven), and ethnic or religious commonality (the ICO and the Arab League). 
States also had informal arrangements among themselves. Italy's bilateral mine 

331 

clearing agreements are an example. The US statement that US Navy protection 
was available to third-State merchantmen, upon request and if US naval commit- 

332 

ments permitted, is another. The clearest example of informal self-defense ar- 
rangements was the December 1987 comprehensive security strategy adopted by 

333 

the Gulf Cooperation Council. 

The belligerents also made arrangements that did not rise to the level of a for- 
mal Article 51 self-defense agreement or an Article 52 regional arrangement, at 
least on the public record. A notable example was the belligerents' financing their 
war through petroleum sales and their importing war goods through third coun- 
tries. Arms and other sales to belligerents might be seen as another example 
of an informal arrangement. Below these governmental efforts were the effects of 
organizations,^., the General Council of British Shipping, seafarers' unions, and 
the marine insurance industry. 

III. Appraisal for the Tanker War. No formal agreements like the multilateral or bi- 
lateral defense treaties of the Cold War era were involved in the Tanker War. How- 
ever, as with prior conflicts since 1945, e.g., Falklands/Malvinas, States or groups 
of States aided one side or the other. When States that were not belligerents 



136 The Tanker War 



concerted together, these amounted to informal collective defense assistance ar- 
rangements, sometimes with a belligerent and sometimes among other countries 
not party to the conflict. There was precedent for this action before and during the 

337 

Charter era. It is arguable, for example, that the 1990-91 coalition assembled 
against the Iraqi invasion of Kuwait was governed by principles of informal 
self-defense, to the extent that there were no formal collective self-defense treaties 
among coalition countries, before the Security Council authorized force in November 

338 

1990. After and to the extent the Council became seized of the matter, coalition 

339 

actions were governed by Security Council decisions. 

Whether claims of informal collective self-defense amount to a resurgence of 
the pre-Charter concept of an interim legitimate stage of nonbelligerency, between 
belligerency and neutrality, is an open question. Many States recognize only 
neutrality or belligerency. It would seem, however, that it is possible that 
nonbelligerency may have crept in through the door of practice under the Charter 
between 1945 and 1988, before the end of the Cold War. Whether this will continue 
with revitalization of the Security Council since 1989 and the USSR's collapse is 
only a guess. If the Council continues relatively powerless, by the veto or adoption 
of nonbinding recommendations or calls for action, or if the UFP Resolution pro- 
cedure is revived with a veto-paralyzed Council, that door remains open. 

It would seem, however, that a distinction between belligerency and neutrality 
can be retained by referring to informal collective self-defense for some situations, 
e.g., US and EC support of Britain during the Falklands/Malvinas War. Whether 
informal collective self-defense can sustain actions in all situations must be left to 
speculation. The problem lies in a definition of the contours of the doctrine. It is 
fairly clear, for example, that there is a customary right for formal treaty partners to 
consult before action, and that consultation can include preparation for anticipa- 
tory collective self-defense. It is also fairly clear that the inherent right to collective 
self-defense includes a right of anticipatory self-defense, however that might be 
limited by principles of necessity, proportionality and admitting of no alternative 
in a particular situation. Presumably informal collective self-defense includes a 
right of consultation, but does it include a right of anticipatory response? If the re- 
cord of informal collective self-defense is sparse in the Charter era, claims to a right 
of anticipatory response appear to be even more scarce. There are few reports of it 
in the century and a half of prior practice; there may be many, particularly in the 
maritime arena since 1914, but the record of State practice is not clear on the 
point. Lack of media interest, space considerations and relative importance in di- 
gests of national practice like Whiteman, lack of commentary by scholars, or na- 
tional security, may have resulted in no or only episodic reportage. 

There is one critical difference between collective self-defense claims, whether 
anticipatory or otherwise, published in treaties and those asserted under a right of 
informal self-defense. Today most treaties are published, perhaps first in informal 



World Public Order 137 



sources, e.g., International Legal Materials, but nearly always later in national series, 
e.g., United States Treaties and Other International Agreements, and perhaps in the 
United Nations Treaty Series, although International Legal Materials is selective in 
publication and the latter two may be decades behind in printing. Some agree- 
ments are never published, due to national security considerations, and these 
may often deal with defense issues. However, at least for published treaties, there is 
some public notice of their terms, perhaps qualified or explained by practice. By 
definition, there is no similar method of notice by publication of informal collec- 
tive self-defense arrangements, except what might be deduced from government 
notices or the media. It would seem, however, that to avoid claims of unprovoked 
aggression under Article 2(4) of the Charter, States should notify informal collec- 
tive arrangements except where security considerations militate against publicity. 
Notices to Mariners. (NOTMARs) and Airmen (NOTAMs) were employed dur- 
ing the Tanker War to publicize defense, war or exclusion zones and warnings of 
self-defense action. Even as a requirement of treaty publication is qualified to- 
day, e.g., for national security considerations, States in informal collective 
self-defense arrangements should consider publishing their terms. 

iii. Reporting Self-Defense Measures to the Security Council. The Charter also 
requires that "Measures taken by Members in [the exercise of this right of] self-de- 
fense shall be immediately reported to the Security Council and shall not in any 
way affect the authority and responsibility of the . . . Council under the . . . Charter 
to take at any time such action as it deems necessary in order to maintain or restore 

350 

international peace and security." There is little ambiguity in this requirement, 
which is not part of customary international law, according to the Nicaragua Case, 

which added that failing to report "may be one of the factors indicating whether 

351 
the State in question was itself convinced that it was acting in self-defense." The 

question might be raised, particularly in view of the Court's position that a parallel 

customary law of self-defense has developed alongside Charter criteria in Article 

352 
51, how reporting could be a "factor" for a customary law of self-defense if the 

reporting requirement is not a part of customary law. Use of "this right of self-de- 
fense" in Article 51 underscores requiring reporting only in Article 51 -gov- 
erned situations. Whether an Article 51 reporting requirement applies in cases of 
informal collective self-defense, also permissible under the Charter, is not 
known and perhaps depends on whether a State claims a right to informal collec- 
tive self-defense under Article 51 or under customary law. 

In any event, the Article 51 reporting requirement appears to have been hon- 

355 

ored more in the breach. A commentator has argued, however, that failure to re- 

356 

port at least indicates that measures taken are not defensive in nature. 



138 The Tanker War 



iv. Anticipatory Self-Defense. The Caroline Case is the classic statement of the 
right of anticipatory self-defense, i.e., a target State may resort to self-defense be- 
fore an actual armed attack where the necessity for that defense is "instant, over- 
whelming, and leaving no choice of means, and no moment for deliberation." The 
action then taken must not be unreasonable or excessive, i.e., it must be propor- 
tional to the threat; it must also be necessary. The Tokyo and Nuremberg tribunals 
recognized a right of anticipatory self-defense, holding the Netherlands could rely 
on it to justify attack on Japan before a formal war declaration but that Germany 

357 

could not rely on it to justify attack on Norway. 

Does the right of anticipatory self-defense carry forward into the Charter era, or 
must a State "take the first hit" before responding in self-defense, i.e., is only "reac- 

358 • 359 

tive" self-defense permitted? Commentators and countries divide sharply 
on the issue. Commentators and countries may also divide on when self-de- 
fense, anticipatory or reactive, is appropriate. The Charter is silent on the point, 
except to say that UN Members retain the "inherent" right of individual and col- 
lective self-defense. The Nicaragua Case did not rule on the issue. Some com- 
mentators, and undoubtedly some States, have seemed to change views. Others 
have taken no clear position. 

If the methodology of treaty interpretation is employed, practice under Article 
5 1 has been ambiguous. Bowett notes the UN Atomic Energy Commission's initial 
report, which said a right of self-defense would arise where a party to a nuclear 
arms treaty committed a "grave" violation of the treaty. He also cites the Secu- 
rity Council discussion over the Kashmir invasion, justified by Pakistan on antici- 

367 

patory defense grounds, where only India argued against the view. ' In 1952 the 
UN Sixth Committee heard four States argue that a State threatened with impend- 

2f.Q 

ing attack might be justified to respond in self-defense. 

The Definition of Aggression resolution includes specific examples not involv- 
ing armed attack on a State but which are nevertheless considered aggression un- 
der the Charter: blockade of ports or coasts which, if complied with, results in no 
use of force, merely a threat of use of force; "use" of armed forces of a State, within a 
host State's territory by the host's agreement, but contravening conditions in the 
agreement initially entitling the visiting armed forces to be there, which might re- 
sult when such forces are "used" in nonforce situations. The enumeration is not 

370 

exclusive and could include other circumstances involving threat of force that 
could trigger a potential for self-defense response. If acts of aggression can justify a 
proportional self-defense response, it is implicit in the Assembly's approval of 
these as per se acts of aggression by which an anticipatory self-defense response 
could be triggered. 

The case of blockade is illustrative. When blockade is declared against a target 
State, no armed attack will occur if there are no ships to intercept. There is no way 
to determine the blockade's effectiveness until interceptions occur or ships 



World Public Order 139 



successfully evade blockade. If a target State acts to end the blockade before its 
goal — intercepting and possibly destroying target State ships — occurs, a target 
State would be exercising anticipatory self-defense. Thus if armed aggression — 

371 

the French version of "armed attack" in Article 51 — includes blockade as cus- 

372 

tomary law, then target State action to end a blockade may include anticipatory 
self-defense. 

The division of commentators and countries on admissibility of anticipatory 

373 
self-defense as an option has been recited. Dinstein offers an intermediate posi- 
tion of "interceptive" self-defense, permitted if a State "has committed itself to an 
armed attack in an ostensibly irrevocable way. Whereas a preventive strike [i.e. ,2m- 
ticipatory self-defense] which is merely 'foreseeable' (or even just 'conceivable') an 
interceptive strike counters an armed attack which is 'imminent' and practically 
'unavoidable.' He cites a scenario based on the Japanese task force ordered to at- 
tack Pearl Harbor in 1941: 

[h]ad [it] been destroyed on its way to Pearl Harbor, this would have constituted 

not an act of preventive war but a miraculously early use of counter-force [P]ut . . . 

another way, the self-defence exercised by the United States (in response to an 
incipient armed attack) would have been not anticipatory but interceptive in 
nature.^ 

Dinstein thus justifies Israel's first opening fire in the 1967 Arab-Israeli con- 
flict. The hypothetical interception to end a naval war in 1941, before the Char- 
ter era, is undoubtedly true today, if the Japanese task force was past the point of no 
return (i.e., it could not be recalled) and it was reasonably clear from facts available 

377 

to the United States at the time. The same can be said of Israel's 1967 attack on 
Egypt. 

Dinstein's analysis does not mention Israel's 1981 raid on the Iraqi nuclear re- 
actor, condemned by the Security Council and others, arguing that the raid came 

378 

during a continuing state of war between Iraq and Israel, nor does he mention 
two tactical aspects of the Arab-Israeli conflicts, the Israeli attack on the U.S.S. 

379 

Liberty, and destruction of the Israeli destroyer Eilat by missiles. Liberty was a 
US warship operating in international waters of the Mediterranean Sea, gathering 
intelligence for the United States, when it was attacked by Israeli aircraft and PT 
boats. The attack clearly violated international law and, as an act of aggression, 
could have subjected Israel to US proportional self-defense responses. 

Eilat's loss, also on the high seas, due to an Egyptian gunboat's Styx missiles 
launched in Port Said harbor occurring during a resumption of the conflict, illus- 

380 

trates the change in naval warfare between 1941 and 1967. (This attack could 
not raise the self-defense issue, since it occurred during hostilities, rather than at 
the beginning of hostilities.) Rather than a battleship and carrier formation steam- 
ing at 20-30 knots to a position off Hawaii where it could launch raids flown by 



140 The Tanker War 



aircraft with top speeds of 400 miles an hour, thus giving days or at least hours for a 
target State to anticipate and deliver an interceptive strike, missile attacks from the 
same range come in minutes. Moreover, a missile attack is nearly always fatal. One 

can compare Eilat's loss in 1967, the sinking of Venus Challenger and a Pakistani de- 

381 
stroyer during the 1971 India-Pakistan war, losses oiH.M.S. Sheffield and other 

382 

ships during the Falklands/Malvinas war, and U.S.S. Stark's near loss during 

383 

the Tanker War, with survival of many ships during the World War II 
Kamikazi attacks, where hundreds of manned Japanese suicide planes crashed US 
warships. Aside from aircraft carriers and battleships, World War II men-of-war 

were smaller and equally fragile, yet they took many hits before sinking, and most 

384 385 

survived. New occasions teach new duties and responsibilities, and if inter- 

national law is to remain credible, it must parallel technical developments. 

(That, of course, is the function of custom as opposed to a potentially rigidified 

387 
treaty regime.) 

Dinstein's interceptive defense theory seems but another phrase for anticipa- 
tory self-defense in the Pearl Harbor attack hypothetical. He is less than clear 
about the situation of an anticipated attack on an independently-steaming warship 
before armed conflict begins. However, as events in the Tanker War and previous 
incidents demonstrate, some States have asserted a right of anticipatory self-de- 

388 

fense or interceptive defense as Dinstein would formulate it. 

/. Libya-US Confrontations. Libya-US confrontations from 1973 through 1986 il- 
lustrate the two views of the scope of self-defense. 

In 1973, responding to US assistance to Israel during the Yom Kippur War, 
Libya declared the Gulf of Sidra below 32 degrees 30 minutes North latitude (the 
"Line of Death") as Libyan territorial waters. 

The United States challenged the claim by warships' use of the Gulf of Sidra, es- 
tablishing a formal Freedom of Navigation (FON) program in 1979. In 1981, dur- 
ing a FON exercise, two Libyan air force jets launched missiles against Navy 
aircraft, who dodged the missiles and downed the Libyan aircraft with missiles. 
Under anyone's view of the right of self-defense, the Navy aircraft had a right to 
fire in response to the prior Libyan missile attack; it was an example of reactive 
self-defense. 

Tensions again mounted in 1985-86. Libya escalated threats against US war- 
ships and praised the terrorists who had hijacked the Italian liner Achille Lauro. 
New US FON exercises were ordered off Libya, including one below the Line. US 
NOTMARs and NOTAMs publicized the operations. After Libya launched 
land-based missiles against Navy aircraft flying over international waters below 
the Line, and Libyan aircraft penetrated the announced exercise area in interna- 
tional waters, the FON force commander declared that Libyan military forces 
leaving Libyan territorial waters or airspace and constituting a threat to US units 



World Public Order 141 



would be considered hostile. Thereafter, when Libyan missile patrol boats headed 
toward US forces, and Libyan target acquisition radars activated with a likely ob- 
ject of firing on US aircraft, the Libyan boats and radars were attacked and dam- 
aged or destroyed. In these cases the US claim was anticipatory self-defense, i.e., 
taking action to protect ships or aircraft after hostile intent (e.g., closing US ships 
in an attack profile or illuminating US aircraft with target acquisition radar) was 
manifested. There was, of course, no obligation for US forces to attack or desist 
from attacking the Libyan vessels or aircraft, but there was the option to do so, sub- 

390 

ject to limitations of self-defense, i.e., necessity and proportionality. Indeed, US 
forces did not fire on Libyan missile patrol boats when they sought refuge along- 
side a neutral merchantman or were engaged in legitimate search and rescue opera- 
tions, which illustrate these principles. 

In April 1986 US Navy and Air Force planes bombed terrorist operations cen- 
ters in Libya after two US citizens were killed in a Berlin disco terrorist bombing. 
The US hard evidence was that Libya was responsible for the disco bombing and 
was planning further terrorist attacks on US military and diplomatic facilities in 
Europe. The United States claimed self-defense conditioned by necessity and pro- 
portionality as the basis for the operation. French, UK and US vetoes blocked a Se- 

391 

curity Council resolution condemning the raid. 

II The Tanker War. The Tanker War produced numerous examples of reactive 
self-defense, i.e., self-defense after an initial attack, as well as anticipatory self- 

392 

defense, both individual and informal collective self-defense. 

Iraq responded to Iran's shelling of Iraqi towns in 1980 with a three-front inva- 

393 

sion of Iran, claiming self-defense. If it is true that the shelling was not respon- 
sive to Iraqi invasions, Iraq's claim of self-defense was legitimate. On the other 
hand, if Iranian shelling responded to prior Iraqi acts of aggression, the shelling 
was a proper self-defense response by Iran, and the Iraqi invasion could not be 
claimed as self-defense. In the latter situation, the invasion was a clear violation of 
Charter Article 2(4). Use or threat of use of force in response to legitimate self- 
defense action cannot be claimed as self-defense. Since UN Security Council Reso- 
lution 479 was a "call" for cessation of hostilities, and not a "decision," there 
was a strong political, but not a legal, obligation on the belligerents to comply. 

396 

Both belligerents declared war zones. After the Iraqi invasion, Iran declared 
its coasts a war zone, closed the Shatt al Arab, refused access to Iraqi ports, and 
warned of retaliation if other countries gave Iraq facilities. Iran said the zone decla- 
ration was for defense and for safety of shipping. Iraq's war zone was north of 
29-30N in the Gulf and was reportedly reprisal, or retaliation, for the Iranian war 
zone declaration. 

Iran's war zone declaration was legitimate for Iran's coasts, which were part of 

397 

its territory. Although the Shatt al-Arab and Iraqi ports were part of the area of 



142 The Tanker War 



conflict, unless Iran had occupied the area or they were vital to its defense, Iran 
could not lawfully announce their closure to States not party to the conflict. Still 
less could Iran issue a generalized warning of retaliation against these States if they 
gave Iraq facilities, unless States were parties to a collective defense agreement or 
arrangement with Iraq and employed this treaty arrangement to assist Iraq as the 

398 

aggressor. Since Iraq had withdrawn from the Baghdad Pact, and was not a GCC 

399 

member, Iran could not claim that these regional arrangements were assisting 
Iraq. Iraq was a party, with Bahrain, Kuwait, Qatar, Saudi Arabia and other Arab 
States, to the Arab Joint Defense Treaty, and it may have been to this Treaty ar- 
rangement that Iran directed its warning. It would have been entirely legitimate, if 
Iran committed aggression by shelling Iraqi communities, for the Treaty States to 
have collaborated with Iraq in collective self-defense. Although Iran could warn 
of retaliation, this did not deprive the Treaty States of their right to assist Iraq with 
collective self-defense responses. The Treaty States might have paid consequences, 
e.g., by bombing raids on their territory if they did, but they could not be deprived 
of their treaty obligation by the Iranian warning. On the other hand, if Iraq was the 
aggressor, e.g., by invading Iran, the Treaty States could not aid Iraq pursuant to 
the Treaty. Under no circumstances could Iran claim a right of retaliation 
against States not party to any defense treaty or other similar arrangement with 
Iraq, e.g., States whose shipping sailed the Gulf, or whose shipping interests used 
the Gulf, e.g., France, Liberia, Panama, USSR, the United Kingdom, and the 
United States. 

Whether the Iraq war zone declaration was a legitimate reprisal, or was legal in 
terms of area, duration, etc., is addressed later in this chapter and in Part F of 
Chapter V. If Iran was the aggressor when it shelled Iraqi communities, then the 
Iraq war zone, later named the Gulf Maritime Exclusion Zone (GMEZ), was a le- 
gitimate self-defense measure, subject to proportionality, etc., considerations. 
The same is true for the zone's extension, again subject to the same limitations. " 
On the other hand, if Iraq was the aggressor, then the war zones, and the GMEZ, 
were not legal self-defense measures. 

The GCC's establishment in 1981, with a goal of coordinating, integrating and 
interconnecting, inter alia self-defense, among its six western Gulf littoral mem- 
bers, was legitimate under Charter Articles 51-52, even though its self-defense 
terms were never spelled out like most collective defense treaties. This too is an ex- 
ample of a legitimate "informal" multilateral collective self-defense arrange- 
ment. Similarly, it was legitimate for Saudi Arabia to request US Air Force 
AWACS aircraft surveillance, and for the United States to agree to the operation, 
in 1981. This is an example of a legitimate informal bilateral self-defense ar- 
rangement. In neither case, however, could these informal arrangements be 
used to aid an aggressor. 



World Public Order 143 



The shuttle convoys carrying oil as part of Iran's warfighting, war-sustaining ef- 
fort down Iran's Gulf coast and through the Iraqi zone were given Iranian naval 
protection. These vessels were entitled to self-defense protection by Iran. If Iran 
was correct in asserting that it was a target of Iraqi aggression, these fleets of ves- 
sels, if attacked by Iraq, were also targets of aggression. Even if they sailed alone, 
perhaps with naval escort or perhaps independently, these vessels would be con- 
sidered targets of Iraqi aggression, if Iraq is deemed to have been the aggressor 
at the beginning of the war. If, on the other hand, Iran was the aggressor, the at- 
tacks were subject to the law of naval warfare. 

The same analysis applies for Iranian visits, searches and diversions or at- 
tacks on vessels bound for Iraq with military equipment, e.g., the Danish flag vessel 
Elsa Cat, or from Iraq with warfighting or war sustaining cargo (i.e., oil) aboard, 
if Iraq was the aggressor. Similarly, if Iraq was the aggressor, and if Kuwait was as- 
sisting Iraq, and if, e.g., a Kuwaiti survey vessel was assisting the Iraqi war ef- 
fort, it was properly subject to search, seizure or detention as part of Iranian 
self-defense. These ships were also subject to search, seizure or detention as part of 
the law of naval warfare if Iran was the aggressor. 

Security Council Resolutions 514, 522 and 540 of 1982 and 1983, calling for a 
ceasefire, refraining from any action that might endanger peace and security, ces- 
sation of military operations against civilian targets, observing humanitarian law, 
and affirming the right of freedom of navigation, were not Council decisions pur- 
suant to Articles 25 and 48 of the Charter. They did not speak to the self-defense is- 
sue. The effect of incorporation of humanitarian law, etc., by reference in these 
resolutions elevated them to Charter law. At least insofar as conflicts between trea- 
ties and the resolutions and practice under them, and perhaps insofar as there was a 
difference between custom paralleling the treaties, the Charter practice held pri- 

418 

macy. The same is true of other resolutions; they may have condemned action, 
advocated observance of the LOAC, freedom of navigation, or protection of the en- 
vironment, but in no case did they remove a State's right of self-defense, which un- 

419 

der the Charter trumped any treaty law and perhaps also customary norms. 

In January 1984 the United States announced new defensive measures for its 
warships in NOTAMs and NOTMARs. These procedures, a "defensive bubble" or 
"cordon sanitaire" around the ship(s) for a stated distance on the surface of the sea 
and above the vessel(s) in the air, were justified on self-defense grounds when Iran 
protested. The UK Armilla Patrol, deployed in the lower Gulf since the begin- 
ning of the war, never published use of a defensive envelope. In terms of self-de- 
fense, the US cordon sanitaire was legitimate; although other navies' warships did 
not have benefit of a defensive bubble declared by their governments, they could 
take self-defense measures if threatened or attacked. If a US warship proceeded in- 
dependently or in formation without an announced cordon sanitaire, which was the 
situation early in the war, that ship and the formation could also take self-defense 



144 The Tanker War 



422 



measures. The US cordon sanitaire's validity in terms of area, duration, etc., is 
considered separately. 

The Armilla Patrol accompanied UK flag merchantmen in the lower Gulf from 
the beginning of the war; these merchantmen were on their own as they proceeded 
northward. In October 1985 France began defending French-flag merchant- 
men. A French warship positioned itself between the Ville d 'Angers and an Iranian 
warship, warning the Iranian that if it attempted to intercept Ville d'Angers, the 
warship would use force to prevent the interception. (French ROE declared French 
warships would fire on forces refusing to break off attacks on neutral merchantmen 
under attack; the result was a drop in attacks near French men-of-war.) In Janu- 
ary 1986 the United Kingdom stated that a right of visit and search of neutral mer- 
chantmen, believed carrying cargo to or from a belligerent port, was an aspect of 
self-defense under Article 51 of the Charter. In March 1986 the United States 
recognized a basis in international law for belligerent searches of neutral mer- 
chantmen. Nevertheless, in April 1986 a US destroyer warned an Iranian war- 
ship off what may have been a planned boarding of President McKinley, a US flag 

428 

merchantman. When the Soviet flag Pyotr Emtsov, bound for Kuwait with arms 
ultimately destined for Iraq, was fired upon, stopped and searched by an Iranian 

429 

warship in September 1986, the USSR protested. 

The apparent divergence of views among States depends on the law deemed ap- 
plicable to the interception, or the interpretation of it. If Article 5 1 and Charter law 
in general applied, and if Iraq was the aggressor, Iran could intercept, search 
and under some circumstances attack third-flag State unarmed merchant ships 
bound for Iraq, and believed to have warfighting or war-sustaining goods aboard as 
a self-defense measure. Treaty law to the contrary would be trumped by the Char- 
ter. The only general treaty applying to visit, search and diversion or de- 
struction of merchantmen is the London Protocol, which provides in Article 22 
that 

. . . The following are accepted as established rules of international law: 

(1) In their action with regard to merchant ships, submarines must conform to 
the rules of international law to which surface vessels are subject. 

(2) In particular, except in the case of persistent refusal to stop on being duly 
summoned, or active resistance to visit or search, a warship, whether surface 
vessel or submarine, may not sink or render incapable of navigation a mer- 
chant vessel without having first placed passengers, crew and ship's papers in 
a place of safety unless the safety of the passengers and crew is assured, in the 
existing sea and weather conditions, by the proximity of land, or the presence 
of another vessel which is in a position to take them on board. 433 

The Tanker War belligerents were party to the treaty, and among naval powers op- 
erating in the Gulf, Belgium, France, Italy, Saudi Arabia, USSR, the United 



World Public Order 145 



Kingdom and the United States were also parties. No other GCC States were 
party. Although the London Protocol bound many naval powers in the Tanker 
War, it could not supersede the Charter and its Article 51 self-defense norms, 
particularly if Article 5 1 states a. jus cogens norm. However, the Protocol, or prin- 
ciples similar to it, could inform the content of self-defense under Article 51. 
Whether the Protocol applies as customary law or has been superseded by practice 
since 1936, at least insofar as an unqualified duty to place those aboard a merchant- 
man in safety is concerned, has been debated by commentators and govern- 

439 

ments, and since the Charter does not address the issue of custom conflicting 
with a Charter provision, the question arises as to whether practice is sufficient to 
offset specific London Protocol rules as custom. The issue also arises if there is a 
parallel, and different, customary self-defense standard to be applied, the situation 
in the Nicaragua Case. The San Remo Manual would restate the rule: 

Merchant vessels flying the flag of neutral States may not be attacked unless they: 
. . . (f) otherwise make an effective contribution to the enemy's military action, e.g., 
by carrying military materials and it is not feasible for the attacking forces to first 
place passengers and crew in a place of safety. Unless circumstances do not permit, 
they are to be given a warning, so that they can re-route, off-load, or take other 
precautions. 

The Manual permits attacks on enemy-flag merchantmen as a legitimate military 
objective if, inter alia, they "otherwise mak[e] an effective contribution to military 
action, e.g., [by] carrying military materials." Whether flying an enemy flag or 
flying a neutral flag but characterized as enemy because of its activity, e.g., carrying 
war materials to aid the enemy, both classes of merchantmen are subject to rules of 
discrimination, military objective and proportionality. 442 Certain merchant ships, 
e.g., coastal fishermen, are exempt from attack unless they lose exemption by aid- 
ing the enemy. This standard, whether observed in the context of informing the 
content of self-defense or as a law of naval warfare norm, is appropriate. It balances 
realities of modern technologies available to merchant ships, which might decide 
to advise the State whose war cargo it carries of an attacker's presence, entitling an 
attacking platform to treat a ship as directly aiding the enemy and subjecting it to 
destruction on that account, and Protocol humanitarian considerations. 

If Charter law did not apply to a State's actions, the same rules should have been 
applied as the law of armed conflict. This would be the case for Iraq, if Iraq was 
the aggressor; even though perhaps guilty of aggression, Iraq was bound to apply 
the LOAC in prosecuting its actions. If the reverse is true, i.e., Iran was the aggres- 
sor and Iraq properly asserted self-defense, the result is the same. Iraq would be 
governed by the law of self-defense as applicable to its actions against merchant 
shipping, and Iran was required to apply the LOAC even though it might be guilty 
of aggression. If neither party was entitled to claim self-defense for these actions, 



146 The Tanker War 



i.e., because Charter law including the law of self-defense did not apply, LOAC 
principles applied to both belligerents. Depending on the view of the Tanker 
War by States not party to the conflict, i.e., whether the Charter applied or not, 
these States were also required to apply the LOAC as incorporated into Charter 
law, if they perceived that the Charter applied, or the LOAC if their view was that 
the law of armed conflict, and not Charter law, applied. 

These principles apply to States' protection of their flag shipping on the high 
seas that was destined for other than belligerents' ports. It was therefore legitimate 
for the United States to organize convoys of reflagged tankers or to escort single 
merchantmen, for France and the United Kingdom to accompany UK flag mer- 
chantmen, and for France to interpose its warships against belligerents' threat- 
ened hostile action against these merchant ships if they were not carrying goods to 
sustain a belligerent's war effort. If Iran had attacked escorted or convoyed mer- 
chantmen as it threatened, convoying or escorting men-of-war could have re- 
sponded in self-defense. It was legitimate self-defense for these States to operate, 
individually or perhaps informally as a collective group, to protect against or re- 
move the mine menace from the high seas of the Gulf. It was legitimate for the 
United States to remove the Iran Ajr as a minelaying menace for this reason; l 
mines threatened merchantmen and warships alike, as damage to U.S.S. Samuel B. 
Roberts attests. The United States attacked Iranian platforms used as a gunboat 
base in response to the Iranian missile attack on the US-flagged Sea Isle City with 
US nationals in the crew, and Iranian gunboats that had attacked a Pan- 
ama-flag, Japanese-owned tanker with US nationals among the crew. This 
followed from the policy behind thel986 Libya raid, mounted to destroy State- 
supported terrorist bases in Libya after two US nationals were killed in a Berlin 
disco. If the US view is correct, that self-defense measures against those who 
attack American nationals is lawful, these were legitimate excercises of self- 
defense. The Sea Isle City response, like the response to the Berlin disco bombing, 
was anticipatory self-defense, in that more threats from these sources could rea- 
sonably be expected in the future. The reactive response to the Panama-flag vessel 
attack and the Sea Isle City response involved US nationals aboard, and Sea Isle City 
was US flagged. The United Kingdom committed to a similar response if a ves- 

458 

sel, although foreign flagged, had more than half UK beneficial ownership. For- 
eign-flag vessels could request US protection, which would be given if US forces 

459 

were in the area and operational commitments allowed it. This too was a legiti- 
mate exercise of self-defense, i.e., informal collective self-defense. The request and 
acceptance was enough to complete a collective self-defense arrangement. How- 
ever, the practice of some masters in tailing convoys or simulating a convoy 
would not have entitled those vessels to self-defense protection by warships of 
other nations unless it had been agreed upon. 



World Public Order 147 



Warship protection was also subject to the law of self-defense. The collective 
and individual States' responses to mines has been noted. It was proper for US 
and other countries' warnings to declare a defensive bubble or cordon sanitaire 
around their warships to respond to attacks on them. It was also proper for Gulf na- 
val forces to cooperate, perhaps informally as the UK Armilla Patrol did, with 
other navies for mutual protection. It was proper for the United States to re- 
spond to attacks on its seaborne helicopters, to the platform-based attack on Sea 
Isle City as a possible threat to its combatants in the Gulf, and to the mining at- 
tack on Samuel B. Roberts. Although a US helicopter did not return fire when a 
Greek flag tanker shot at it, returned fire might have been appropriate if that 
would have been necessary and proportionate under the circumstances, which are 
less than clear from the record. 

There were several examples of mistaken fire in the Gulf War. The first was the 
Stark attack. US forces fired on several small boats or dhows after the defensive 
bubbles were announced. The reason for these latter errors can be attributed to 
the real and continuing threat of Iranian small boat attacks on merchantmen and 
warships. The U.S.S. Vincennes mistakenly shot down Iran Air Flight 655. 
In the Stark and Airbus cases claims were paid and settled without admitting lia- 
bility. The United States expressed regret over the other losses and probably 
compensated for injuries, loss of life and damage. Whether the attacking Iraqi 
aircraft observed proper qualifying principles of discrimination and proportional- 
ity is unknown; therefore, whether this was a proper exercise of self-defense is 
sealed in Baghdad's archives. Whether US forces observed discrimination or pro- 
portionality principles in firing on the small boats is likewise not clear from the re- 
cord; certainly if the commanders reasonably believed that these were Iranian 
Revolutionary Guard speedboats, they were correct in opening fire to protect their 
ships. The same is true for the Airbus tragedy. However, if these were reason- 
ably perceived threats, the attacking platforms could fire in self-defense. On the 
other hand, if the targets were reasonably perceived to be carrying warfighting or 
war-sustaining goods, they were legitimate targets under the law of naval war- 
fare. 476 

The Tanker War thus strengthens the case that a right of anticipatory self-de- 
fense exists in the Charter era as before. To be sure, States are not unanimous in 
this position, but at the least under the principle of sovereignty States adhering 
to the use of anticipatory self-defense may continue to advocate it until there is an 
authoritative decision to the contrary. This is particularly true if, as analyzed 

4.78 

above, Iran had a right of visit and search as a means of self-defense. If Iran had 
the right to stop and search a ship under a self-defense theory to check for 
warfighting/war-sustaining goods that might not be used for some time against 
Iran, this could only be under a theory of anticipatory self-defense, as distin- 
guished from reactive self-defense. The same can be said for Iraqi attacks on ships 



148 The Tanker War 



carrying warfighting/war-sustaining goods for Iran. These interceptions were sub- 
ject to self-defense limitations, e.g., necessity and proportionality. And if such 
be the case, then those States protecting, escorting, accompanying or convoying 
these ships also had a right of self-defense, including anticipatory self-defense, if 
Iran or Iraq chose to attack instead of visiting and searching merchantmen not car- 
rying warfighting/war-sustaining goods to a belligerent. These States' warships 
also had a right of self-defense, including anticipatory self-defense, of their 
units. 481 

The Tanker War strengthens the precedent for informal collective self-defense 
among States opposed to the belligerents' sink-on-sight policies. Gulf naval forces 

482 483 

developed these ad hoc coalitions to clear mines, ' to protect each other, and to 
protect merchantmen flagged by States other than their own. 

The foregoing has proceeded on a theory that the Charter governed these inter- 
actions. As will be seen in Chapter V, if certain aspects of the Tanker War were not 
governed by the law of the Charter, e.g., Iranian visit and search procedures, those 
procedures were strengthened through practice. 

485 

v. Necessity. As noted above, a criterion for invoking self-defense, whether in 
the anticipatory defense mode or in the reactive mode after armed attack, is 
whether a response with force is necessary, i.e., admitting of no other alternative. 
Necessity is an accepted principle of international law conditioning the right of 
self-defense. It applies to war at sea. Alternatives to self-defense run the 

488 489 490 

gamut from nonforce reprisals, retorsions, diplomatic protests or other 

491 492 

diplomatic initiatives, use of an adjudicative strategy, or perhaps doing noth- 
ing at the time, to await a more propitious moment for asserting a claim, perhaps 

493 

along with others, in a general adjudicative, diplomatic or other resolution. The 
difficulty with these choices is that an inappropriate signal may be sent to the ini- 
tial actor or other participants in the world community. The strategy of force, or al- 
ternatives to it, may be used alone, in combination, and in varying degrees. 
Today the general principle is that self-defense through force is justified only if a 
goal of compelling compliance with international norms violated in the initial at- 
tack cannot reasonably be achieved by other means, i.e., "[FJorce should not be 
considered necessary until peaceful measures have been found wanting or when 

495 

they clearly would be futile." As the San Remo Manual expresses it, 

The effect of these principles [of necessity and proportionality] is that the State 
which is the victim of an armed attack is entitled to resort to force against the attacker 
but only to the extent necessary to defend itself and to achieve such defensive goals as 
repelling the attack, recovering territory and removing threats to its future 
security. 496 



World Public Order 149 



Commentators differ on whether Charter self-defense norms apply after war be- 
gins. However, since LOAC and Charter law necessity principles are virtually 
the same, and LOAC principles may inform Charter standards if the principles 
are in a treaty or if Article 5 1 states;'ws cogens norms, the analysis assumes that 
standards are the same, or should be, in any case. 

Brownlie and Dinstein advance a hypothetical case of a target State's submarine 
depth-charged by another State's destroyer on the high seas, stating that necessity 
permits immediate counterattack by the submarine. The same would be true for a 
destroyer against whom a submarine fires a torpedo, and for neutral merchantmen 
attacked while under individual or collective defensive warship protection, e.g., 
while convoyed or steaming independently and being accompanied or escorted, 

502 

the Tanker War situations. On the other hand, if a destroyer drops a hand gre- 
nade — if reasonably perceived by a submarine as an unfriendly irritant and not an 
attack — or if a frigate tickles a submarine hull with sonar as an unfriendly but 

503 

nonthreatening act, no right of self-defense by a submarine would arise. By the 
opposite token, if a frigate indicates hostile intent to a submarine, e.g., by using ac- 
tive, attack-mode sonar and maneuvers demonstrating reasonable probability of 
attack, or if a submarine behaves similarly, e.g., by setting up a firing solution 
flooding torpedo tubes and opening torpedo tube doors, the target could take im- 
mediate self-defense action as a matter of necessity. 

These hypothetical cases illustrate necessity in a case of anticipatory self-de- 
fense and are similar to Dinstein's hypothetical, justifying interceptive self-de- 
fense to destroy the Japanese task force headed toward Pearl Harbor. As with 
Israel's 1981 raid on the Iraqi nuclear reactor, a critical anticipatory self-defense 
issue is the qualification of necessity. The submarine-destroyer hypotheticals, 
where no weapon has been fired when self-defense action is taken, are relatively 
easy cases, and fall into the same category as situations involving missiles, includ- 
ing the over-the-horizon variety. If anticipatory self-defense (or interceptive 
self-defense as Dinstein has it) is a principle of international law, then target 
ship(s) can respond if necessary for self-preservation. 

The Japanese task force, as Dinstein recites it hypothetically, may or may not 
have been subject to destruction in self-defense. Other alternatives, e.g., interpos- 
ing a superior US fleet between it and Hawaii at a point beyond flying range of its 
targets on the high seas, might be considered a reasonable alternative, at least in 
the 1941 context. If the task force, known to be bound for an attack on Hawaii, 
would have proceeded onward after warning, the US fleet would have been justify- 
ing in destroying it in anticipatory self-defense. If the Japanese task force inten- 
tions were not known or there was no reason to believe that attack on Hawaii was 
planned, there would be no necessity for anticipatory self-defense. When its inten- 
tions became known, e.g., through positive intelligence, and there was no reasonable 



150 The Tanker War 



alternative to forestall attack, the US fleet would have been justified in acting in 
anticipatory self-defense. 

The fleet hypothetical also articulates the problem of national, as opposed to 
unit, self-defense. Although beyond the scope of the Tanker War analysis, the 
problem of national survival (as distinguished from survival of a destroyer, for ex- 

507 

ample) may call forth different considerations of necessity. Nations' survival, 

508 

because of their need for Gulf oil, was a policy behind the Carter Doctrine. De- 
struction of single tankers could not be pegged on national survival, but necessity 
could be predicated on a need to save human life endangered during illegal at- 

509 

tacks. Accumulating these "pinpricks" to justify a massive attack on a belliger- 
ent might have provoked claims of disproportionality. 

What distinguishes one situation from another in the context of the necessity 
component is considering all relevant factors known to the target at the time, 
e.g., participants, their perceived goals, methods of attack and response, conditions 

512 

at the time, and probable effects. "The most important condition ... is the de- 
gree of necessity as that necessity is perceived and evaluated by the target-claimant 
and incorporated in the pattern of its expectations — which, in the particular in- 
stance, impels the claimant to use intense responding coercion," i.e., military 
force. The necessity standard — "great and immediate," "direct and immediate," 
or "compelling and instant" — has been carried over from customary law into the 
Charter era. 

The Tanker War illustrates several examples of necessity in the self-defense 
context. 

US announcements of a defensive bubble or cordon sanitaire were cases of pu- 
tative necessity. The warning area was advance announcement that unidentified 
vessels or aircraft not responding to warnings and threatening US warships were 
subject to being destroyed out of necessity for a ship's self-protection. 

Applying the principle of self-defense to Iranian visits and searches of mer- 
chantmen suspected of carrying warfighting or war-sustaining cargoes for Iraq is 
another example of necessity. It was necessary for Iran to visit and search on the 
high seas if the offending goods were to be seized; once the cargo was ashore, it 
would be difficult to stop its delivery to Iraq. Attempts to bomb truck convoys in 
Iraq might have resulted in collateral destruction and more deaths and injuries 
than in a properly executed visit and search. Iraq, which had no effective navy, re- 
sorted to air attacks on shipping moving Iranian warfighting or war-sustaining 
cargoes. The choice was to permit the cargoes to arrive or to attack on the high seas. 
A case can be made that the Iraqi attacks were necessary. The same can be said for 
Iranian attacks on Iraq-bound cargoes. Whether the belligerents exercised proper 
target discrimination or proportionality is another issue. Whether viewed from 
a self-defense or LOAC perspective, the standards were the same as under the 
LOAC for visit and search or attacks. 



World Public Order 151 



Convoying and other protective measures for innocent merchantmen were also 
necessary, in view of repeated belligerent attacks on these ships, regardless of cargo 
or flag. 

Another example of necessity was the US capture and destruction of Iran Ajr. 
Given repeated illegal mining in Gulf shipping lanes, it is clear that Iran would 
have continued to lay mines. A sure way to end the problem was to end a source of 

mines, Iran Ajr. The same considerations justified States' mine clearance opera- 

517 
tions, necessary to remove the mine menace, regardless of origin. 

Operation Praying Mantis, the destruction of Iranian frigates employed in at- 
tacks on neutral merchantmen and of offshore oil platforms serving as a base for 
speedboats preying on merchant shipping and warships, was also a case of neces- 
sity. If the frigates were allowed to continue their deprivations, merchant shipping 

would continue to suffer attacks, and if the oil platforms were not destroyed, they 

518 
would have continued as a haven for the boats. Likewise, firing on attacking 

speedboats engaged in shooting up merchantmen was necessary. If there had been 
no such response, it is ludicrious to think that other action by naval powers (e.g., 
verbal radio warnings) would have stopped an ongoing attack. Diplomatic pro- 
tests, often long after the fact, would have availed nothing to resurrect dead crew- 
men, restore a burnt-out hull, or raise a sunken ship. 

Given evidence of a strong possibility of an Iranian suicide plane or conven- 
tional attack on US warships engaged in self-defense at the time, Vincennes' de- 
struction of Flight 655 was necessary from a self-defense perspective, if 
tragically mistaken in result. 

The same might be said for US responses to Libyan attempts to forcibly inter- 

520 

cept US ships, or to shoot down US aircraft. It takes little logic to justify force 
responses if missile have been deployed, or hostile intent has been clearly demon- 
strated, under the circumstance of Libya's challenges to freedom of navigation. 

vi. Proportionality. In both anticipatory self-defense and self-defense after armed 
attack (reactive self-defense) response must be proportional. 

(I) Introduction. The limiting principle of proportionality, like necessity, in a 

521 

self-defense response is well established in custom. It applies to naval war- 

522 

fare. The proportionality principle applies whether self-defense responds to 
armed attack or other armed aggression, or whether self-defense measures are an- 
ticipatory to imminent armed attack or other armed aggression. However, "re- 
sponsibility ... for a war of aggression may be incurred by the target State, should it 

523 

resort to comprehensive force in over-reaction to trivial incidents." This is a 
decisionmaker dilemma when confronted with an event that reasonable evalua- 
tors would say is an act of aggression. The problem is further compounded by a 
view that a single so-called trivial act may be rolled into a collection of other 
pin-pricks, with the result that a self-defense response against the sum of them all 



152 The Tanker War 



may be proper. Responses with force that seem disproportionate to a present 
pin-prick carry a risk that the target of the response might argue that the response 

is disproportionate, is in effect an armed reprisal, and is therefore an armed attack 

525 
by the responding State. "Genuine on-the-spot reaction [would have closed the] 

cor 

incident" ' and may be a preferable course in many, if not most, situations. "The 
effect ... is that a State which is the victim of an armed attack is entitled to resort to 
force against the attacker but only to the extent necessary to defend itself and to 

achieve such defensive goals as repelling the attack, recovering territory, and re- 

527 
moving threats to its future security." 

The analysis for necessity, i.e., whether Charter self-defense principles and lim- 
itations on them govern throughout a war, or whether the LOAC applies once a 
war has begun so that different standards are then employed, also applies to pro- 
portionality issues. If proportionality principles are in treaties, the Charter's 
clause paramount provision trumps them. If self-defense norms are;ws cogens, they 
trump custom or treaty based proprotionality norms. Whether a customary pro- 
portionality norm can supersede a Charter norm is not clear. Customary and treaty 

based proportionality norms can, and should, inform any binding Charter or jus 

528 
cogens norms. This analysis takes the position that proportionality norms limit- 
ing a right of self-defense and those developed under the LOAC should be the 
same. 

(II) The Elements or Indicia of Proportionality . The foregoing comments on a 
self-defense measure's relative position on a time-line between attack (or immi- 
nence of attack, for anticipatory self-defense) and the defensive measure(s) taken is 
but one index of whether the action is proportional under the circumstances. 

529 

Another major factor is the methodology and intensity of the coercion. Be- 
sides the now threadbare (and refuted) argument that a massive conventional at- 
tack cannot be met by a non-conventional (e.g., nuclear) response, i.e., there must 
be response in kind, there are finer gradations of the problem. US destruction of 
IranAjr in response to Iranian minelaying in shipping lanes — in effect, going to 
the source of the illegality and eliminating it — is one example. Another example is 

532 

destruction of the oil platforms from which Iranian speedboats had operated. 
There need not be identical or even similar response to satisfy the proportionality 
requirement. 

Moreover, such proportional response, as Ago and others have pointed out, 
need not necessarily be proportional in response to force used in the initial aggres- 
sion or attack. 

The requirement of the proportionality of the action taken in self-defence . . . 
concerns the relationship between that action and its purpose, namely — and this can 
never be repeated too often — that of halting and repelling the attack or even, in so far 
as preventive self-defence is recognized, of preventing it from occurring. It would be 
mistaken, however, to think that there must be proportionality between the conduct 



World Public Order 153 



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. 533 

Put another way, force used in self-defense, including anticipatory self-defense, 
must be "strictly confined to the object of stopping or preventing the infringement 
[of the target State's rights] and reasonably proportionate to what is required for 
achieving this objective." Or, as Dinstein comments in a context of full-scale 

535 

war, once a war has started, "it can be fought to the finish. . . . An aggressor State 
may lose its appetite for continuing . . . hostilities, but the defending State need not 

536 

be accommodating." Individual or collective self-defense may carry responses 
to the source of the aggression, beyond driving the aggressor back to the line 

537 

(whether geographic or theoretical) until there is total victory if necessary to 
achieve proportional response in the sense of achieving the objective of ending the 

538 

source of aggression. 

Thus, it was proper under pre-Charter law, for US insistence on Japan's uncon- 

539 

ditional surrender. It was likewise proper for the Netherlands, which declared 
war on Japan on December 8, 1941 as anticipatory defense with invasion of the 
Dutch East Indies imminent, to also insist on Japan's unconditional surrender. 
It would have been proper for Iran, if invaded by Iraq in 1980 to start the war, to 
have carried the war to the complete destruction of Iraq, if this were a propor- 
tional response necessary to force Iraq to comply with the law. The same is true 
with respect to Iraqi responses to Iran, if Iran was the aggressor. (As events had 
it, both sides agreed to a UN-sponsored ceasefire, effectively ending the conflict, 
including its Tanker War aspects.) Proportionality applies to all levels and in- 
tensities of conflict or potential conflict, from anticipatory response to pin-pricks 

i 545 

to general war. 

O'Connell and Greenwood advance a view that self-defense must occur in the 
theater of operations generating the claim. In a regional confrontation, a target 
State would be limited to responding there. For example, in the Falklands/ 
Malvinas War, Britain would have been limited to attacks on military units in the 
South Atlantic Ocean; a lone Argentine frigate in the Pacific could not have been 
attacked unless it gave clear evidence of launching an attack. The US Navy 
could not have responded to North Korea's Pueblo seizure except by attacking 
North Korean assets in Korean waters. Under this view, Iran could not have at- 
tacked the Iraqi frigates in the Mediterranean Sea, or perhaps the Atlantic and In- 

548 

dian Ocean off South Africa if after being launched in Italy they had sailed 
through the Mediterranean and either through Suez or around Africa. 

This thesis, while appealing in simplicity and symmetry, lacks reality. To be 
sure, proportionality means an amount of force necessary to achieve a goal of pre- 

549 

ventive (i.e., anticipatory) self-defense or repulsing attack. A hypothetical case 
from the 1982 Falklands/Malvinas War illustrates the fallacy of the position. 



154 The Tanker War 



If a UK warship encountering an Argentine frigate in the Pacific, thousands of 
miles from the 1982 Falklands/Malvinas War theater of operations, in terms of 
ship-to-ship combat, what would have stopped the Argentine — as USSR men- 
of-war might have during the Cold War — from tailing the other and firing later 
(e.g., after dark or in bad weather), when the UK warship could not sense a poten- 
tial for attack? To take the other extreme, from either antagonist's geopolitical 
world view, a frigate represented a potential asset, wherever located, for prolong- 
ing (and perhaps enlarging) the conflict. It might be argued the frigate could only 
be attacked when it was apparent it was proceeding to contribute to the war. The 
first question is how that could be determined, since most belligerents do not will- 
ingly hand over intelligence, or they may distribute disinformation; recall the 
cruise of the Goeben into Turkish waters during World War I. The second is a 
surveillant power's problem: Must it follow the frigate once located across the Pa- 
cific to be sure it does not reappear at the scene of hostilities? To borrow a phrase, 
"Use it or lose it"; if ordnance is not used on the frigate in hand, the opportunity 
(and the frigate) will be lost, only to reappear in a theater of operations. Despite sat- 
ellite and similar reconnaisance advantage for certain countries (e.g., the United 
States), not all States are so equipped for worldwide tracking, and in a world of 
smaller navies and nations less attuned to alliances and friendships, such a State 
(even if it is the victim of aggression in the first place) may find itself in a situation 
worse than Britain's attempt to locate surface raiders in World Wars I and II or a 
wounded Leviathan like Bismarck during World War II. And if targets should be 
limited in a full-scale war, how can other military aspects of proportionality — geo- 
graphical scope, weapons used, etc., — be limited? It is incongruous that worldwide 
economic sanctions were asserted against Argentina — some of which had clear 
reprisal overtones — and yet military options would be limited territorially un- 
der the proposed analysis. 

The third practical aspect deals with the nature of wars as belligerents have seen 
them. Most since 1945 have been symmetrical, two-State affairs where belligerents 

552 

had about the same quality and quantity of forces. Most conflicts sincel945 
have not been wars of national survival. A problem for proportionality, from a mil- 
itary perspective, arises when some or all of these conditions do not exist. What 
may be a routine, middle to low-level conflict for one belligerent may be a war for 
national survival for the other, particularly if two or more middle-level States' 
forces are opposed to one State's forces, which might have been able to contend 
with some but not all opponents. For the sole State, the war is a high-intensity con- 
flict; for its opponents, it may be low or medium intensity. During the Korean 
War, given other States' overt and covert relationships with North and South Korea, 
it was initially a war of national survival for the South, and then for the North. 
Israel, nearly always surrounded by opponents, has claimed its wars were mat- 
ters of national survival; it is doubtful whether its opponents always perceived 



World Public Order 155 



them thus. The 1980-88 Iran-Iraq conflict, of which the Tanker War was a part, 
was a war of national survival, or nearly so, for both sides. These might be com- 
pared with, e.g., Falklands/Malvinas, or the India-Pakistan conflicts, where 
neither side seriously considered it was involved in a war of national survival. If 
one side — perhaps because of allies arrayed against it, or for other valid rea- 
sons — would validly consider it was fighting a war of national survival where de- 
stroying every warship of opponent(s) would make a difference, would this mean 

557 
that in the hypothetical of the frigate in the Pacific, one side could shoot on 

sight because it had to do so to survive, while the other would have to wait for evi- 
dence of imminent attack, because it had a low-intensity conflict on its hands? The 
situation is even more egregious if the force-heavy State was a target of aggression 
and would have to await another "first hit" from a State initially in the wrong. 

In terms of international law, the theater of operations view may be correct from 
a perspective for force proportionality, but if proportionality is considered in 

558 

terms of the object, i.e., righting the wrong, then the analysis is askew. If rectify- 
ing the situation — i.e., inducing end to aggression — means destroying the Pacific 
Ocean frigate, then the frigate is fair game for that reason alone. In terms of a war of 
national survival by a target State, proportionality with respect to the object 

sought — maintaining political independence and territorial integrity of equal, 

559 
sovereign States, all Charter Purposes — necessarily rises to an ever-higher level 

of permitted violence to preserve these Charter goals for the State affected. More- 
over, in a collective self-defense context, the level of military coercion the Charter 
permits is that necessary to assure survival of a State threatened with annihilation 
by aggression. Thus in the 1990-91 Gulf War self-defense agreements with the 
United States, it was the force necessary to assure Kuwaiti survival, not survival 
of the United States, Kuwait's alliance partner. 

There is no precedent for the theater of operations argument. Iran could have 
attacked the Iraqi warships, once launched and on their way to Iraq through the 
Mediterranean Sea and either the Red Sea and Indian Ocean or the Atlantic and 
Indian Oceans. Conversely, Iraq could have attacked Iranian military assets wher- 
ever it found them. During the last year of the Tanker War, Iranian speedboats and 
military aircraft operated in the lower Gulf and the Strait of Hormuz, near the Ara- 
bian Sea, a part of the Indian Ocean. Iraq could have attacked these platforms in 
the Indian Ocean as well as striking oil facilities near the entrance to the Persian 
Gulf. 562 

The proportionality principle was demonstrated during the Tanker War. 

Announced US defensive measures that could be expected if an unidentified 
aircraft or ship ventured within the defensive bubble for US warships were pro- 
portional. The only object of response would be the intruder, and the warning 
area — up to five miles on the surface and relatively low altitude — was minimal. To 
be sure, there were mistakes, e.g., when US ships fired on small boats that wandered 



156 The Tanker War 



into the bubble, but if they appeared to display hostile intent, the US response was 
proportional under the circumstances. The United States expressed regret over 
these accidents and undoubtedly offered compensation. 

Iranian visit and search procedures for merchantmen suspected of carrying 
cargo for Iraq's war effort were also proportionate, in that the ship would be re- 
leased if no offending goods were found. However, it is not clear whether ad- 
judicatory procedures were established for detained vessels until late in the war. 
Whether Iran could detain ships after the ceasefire depended on terms of the 
ceasefire and practice under it. For detained ships, the response may not have been 
proportionate in terms of time. On the other hand, the belligerents' indiscriminate 
firing at or mining merchantmen and neutral warships alike, or neutral military 
helicopters, where there was no evidence that they were aiding the enemy, lacked 

567 

any semblance of proportionality. 

Belligerents' attacks on ships in neutral territorial waters or neutrals' oil facili- 
ties were clear violations of the Charter. Either the littoral State or the State 
of the vessel's flag could respond proportionally in self-defense. The coastal State 

570 

could respond proportionally for attacks on its facilities. 

Belligerents' attacks on their opponent's oil tanker convoys, oil platforms and 
coastal petroleum facilities in self-defense were legitimate, since belligerents' oil 

571 

sales financed the war. However, attacks had to be proportional; it is doubtful 

572 

whether some (e.g., Nowruz) were. 

US destruction oilranAjr and the offshore oil platforms were also proportional. 

IranAjr was caught laying mines, and its destruction eliminated a source of Iran's 

573 
illegal action. Oil platforms supported the Iranian speedboats attacking mer- 
chantmen; while the response may not have destroyed the same platforms that 
supported a particular attack or mode of attack in the case of their destruction in 
response to the Silkworm attack on Sea Isle City, this response was also legiti- 
mate; it was confined to the kind of platform that could have launched the attack 
and was in response to attack on only that tanker. Proportionality contemplates re- 
sponses parallel in intensity to an initial aggression and designed to discourage fu- 
ture attacks. If the launch platforms were destroyed, there could be no future 
attacks from them. There was no need to respond to the particular platform that 

575 

launched the attack on Sea Isle City. 

Defense against Iranian speedboats or warships attacking merchantmen, US 
military helicopters or US warships was also proportional. As in the case of the an- 
nounced defense measures, the only targets were the attacking craft or their bases, 

576 

the oil platforms. The United States was not required to respond, as it chose not 

577 

to do in the case of the Stark attack. Any response to the Stark attack would have 

had to have been proportional in nature, however. From a self-defense perspective, 

578 
laying aside the mistaken identity issue, Vincennes' destruction of Flight 655 



World Public Order 157 



was proportional. The perceived threat was an aircraft, mistakenly thought to be 
an F-14; only the aircraft was targeted, and only the aircraft was brought down. 
Responses to the Libyan aircraft that fired at US aircraft, or electronically 
locked on to them, and to Libyan missile boat forays, were also proportional. Only 
those aircraft or boats were targeted and hit. Similarly, the 1986 raid on Libyan ter- 
rorist bases was proportional. To be sure, there was collateral damage as in any 

bombing operation, but the targets were the terrorist operations that had caused 

579 
the Berlin disco bombing. 

(Ill) Forbidden Targets: Per Se Disproportionality . Under the law of warfare (jus in 

hello) certain targets are forbidden objects of attack, no matter how proportionate 

the response in other respects, and even if proportional armed reprisal is appropri- 

580 

ate under the circumstances. The Corfu Channel Case authoritatively stated 
that the general principle of humanity condemned mining of an international 

581 

strait with resultant loss of life and UK naval vessels when these ships at- 

582 

tempted straits transit passage in a nonwar context. Although the law of naval 
warfare has developed a relatively concrete list of forbidden targets for armed con- 

583 

flict situations, there has been little Charter era practice for immunity claims 
for these targets in the self-defense (anticipatory or otherwise) context. Neverthe- 
less, the Corfu Channel principle should apply to deny amenability of these objects 
as legitimate targets regardless of how proportional or necessary a self-defense re- 

584 

sponse might otherwise be. The LOAC should inform the law of self-defense 

585 
under these circumstances. 

vii. "No Moment for Deliberation." Anticipatory self-defense, unlike reactive 
self-defense, carries a third requirement, from the Caroline Case: there can be no 

co/r 

moment for deliberation. This principle is often lumped with necessity; the 
Tanker War illustrates the difficulty of application as a discrete concept. 

587 

US defensive measures announcements and actions under them are rela- 
tively straightforward examples. Given the relatively high speed of aircraft or 
small boats, whether carrying shipkilling missiles or on a suicide mission, and a 
high risk to a warship of small boats carrying Exocets or the like, it is easy to see 
that there can be no time for deliberation — i.e., careful consideration up a chain of 
command — before action must be taken. 

Where analysis begins to break down under current views of anticipatory 

588 

self-defense is in the situation of Iranian visits and searches. If "no moment for 
deliberation" means time for investigation by other means, then the concept slides 
semantically into necessity. On the other hand, if the phrase means no other means 
for investigation, the result is the same. The same comments could be made as to 
States that ordered or accepted (acquiesced in) convoying or other forms of protec- 

589 

tion, if that is considered anticipatory self-defense. 



158 The Tanker War 



590 

The Vincennes incident, if considered an anticipatory self-defense case, illus- 
trates the weakness (or elasticity) of the concept as a separate requirement. 
Vincennes' commanding officer had five minutes to deliberate, but was that real 
"deliberation"? He never knew, due to erroneous information, about Flight 655's 
true identity; he thought it was an F-14 homing on his ship. In a sense, he had time 
to deliberate, but only enough time to decide that it was imperative, i.e., necessary, 
to defend the ship. Under this analysis, there was no moment for deliberation, 
and Vincennes' downing Flight 655 satisfied the third principle of anticipatory 
self-defense. 

Thus the third principle of anticipatory self-defense, "no moment for delibera- 
tion," if it exists as a separate concept, was met in these incidents of the Tanker 
War. 

viii. Rules of Reprisal; Retaliation. Reprisals, i.e., use of force or other methods 
(e.g., economic coercion) otherwise illegal to confront a State engaging in illegal 
conduct (e.g., aggression) to force compliance with international norms, has been 

591 592 

characterized as a kind of self-help or sanction. Most say that reprisals in- 

593 
volving force where States are not engaged in armed conflict are illegal. ' Post- 
1945 practice tends to confirm this view. Anticipatory reprisal using force is for- 
bidden. 594 

The Corfu Cannel Case dismissed the UK argument that directing mine clear- 

595 

ance of an international strait was an act of lawful self-help. Israel responded 
with massive reprisals against Syria for its repeated armistice violations. These too 
were condemned. 

The 1970 Friendly Relations Declaration stated that "States have a duty to re- 
frain from acts of reprisal involving the use of force," which the Resolution as- 

. 597 

serted was declaratory of international law. "Subject only to the proviso that 

'force' ... be taken to mean military force, the Western States [agreed] on the ques- 

598 

tion of reprisals." 

Even massive economic coercion does not justify a force response, according 

599 

to the majority view. On the other hand, nonforce reprisals (e.g. , economic sanc- 
tions or "economic warfare") remain legitimate in the Charter era. There can be 
collective nonforce economic reprisals, like those the European Community im- 
posed during the Falklands/Malvinas war. Although many States or their na- 
tionals aided one belligerent or the other, or both, there was no apparent declared 
system of economic reprisals during the Tanker War. 

Even if justified, reprisals cannot be inflicted against third States. The Cysne ar- 
bitration held that although Germany might have been justified in reprisals 
against Great Britain during World War I, Germany could not destroy a neutral 
Portuguese vessel carrying goods covered by the reprisal declaration to Britain. 



World Public Order 159 



All reprisals are subject to three requirements, carried forward from the 
pre-Charter era and stated in the Naulilaa Arbitration and the Cysne Case: previ- 
ous deliberate violation of international law by the other State, an unsuccessful de- 
mand for redress, and the reprisal must be proportional to the injury suffered. 
Some objects cannot be an object of reprisals, whether economic or otherwise; 
commonly these are considered in the context of the LOAC (jus in bello) and will 
be analyzed in that situation. However, such reprisals are be subject to the gen- 
eral principles of humanity in the context of "peacetime" reprisals, discussed here, 
on the same theory that these objects are barred as self-defense targets. 

Security Council decisions can, at least in theory, go beyond customary limita- 
tions for sanctions amounting to reprisals. A State not injured by illegal actions 
of another state might be directed to apply sanctions. Sanctions that some might 
perceive as disproportionate to an illegal action might be imposed. Third States 
might be harmed by Council decisions, although Charter Article 50 allows a State 
confronted with special economic problems arising from carrying out those mea- 
sures a right to consult with the Council for solution of those problems. The 
Council can be informed by humanity principles and other sources of law, but it 

can override treaties to the contrary, and its resolution might state a jus cogens 

608 
norm. 

Sanctions against South Africa, which began in 1977, are an example of the po- 
tential for overriding general reprisal sanction principles. The earlier Rhode- 
sian embargo, which had law of naval warfare overtones, is another example. In 
1965-66, as part of the governance transition from Southern Rhodesia to inde- 
pendent, majority-rule Zimbabwe, the Council passed a series of resolutions, de- 
nouncing the white Rhodesian government as illegal, and calling on States to 
refrain from assisting the white minority regime and to institute an oil embargo. 
One resolution requested that the United Kingdom enforce the embargo. Because 
the resolution only spoke in terms of embargo and did not authorize blockade or 
similar measures, the Royal Navy could not order tankers inbound for the 
Mozambican port of Beira, Rhodesia's access to the sea, to divert. A later resolution 
specifically authorized diversion, and the Royal Navy ordered diversion when 
other tankers tried to call at Beira. While the oil interdiction operation had an 
entirely laudatory purpose, if it is assumed that Rhodesia had no additional petro- 
leum sources, and there were essential needs of the civilian population — e.g., gaso- 
line for ambulances, diesel oil for hospital emergency generators, etc., — a violation 
of humanitarian law principles might have occurred, and interdictions might be 
said to have gone beyond customary LOAC rules. 

The 1990-91 Gulf War, which erupted after the Tanker War ended, is a third sit- 
uation where Council sanctions overrode customary law. Resolution 665 autho- 
rized Coalition interception of vessels bound for Iraq or occupied Kuwait on 
August 15, 1990, without reciting humanitarian exceptions. A month later, 



160 The Tanker War 



Resolution 670 imposed an air embargo but permitted food and medical supplies 
shipments, subject to Council supervision. At least in theory, the Council could 
be said to have overridden humanitarian principles denouncing deprivation of the 
civilian population of food and medical supplies by the omission in Resolution 
665. (It was partly cured a month later by Resolution 666, permitting foodstuffs 
shipments under certain conditions, but the Resolution said nothing about medi- 
cal supplies.) 

ix. The Temporal Problem: When Does Liability Accrue? Convictions at 
Nuremberg and Tokyo were based on what the defendants knew, or should have 
known, when they made decisions to invade other States. Since then there has 
been no authoritative statement on whether liability accrues on what decision- 
makers knew, or should have known, when a state responds in reactive or anticipa- 
tory self-defense. Commentators seem to have been tempted to justify opinions, at 
least in part, on evidence available after a self-defense decision, perhaps years 
later. 619 

The developing law for jus in hello confirms that the appropriate time for predi- 
cating liability is what a decisionmaker knew, or should have known, at the time an 
operation is authorized. Hindsight can be 20/20; decisions at the time are often 
clouded with the fog of war or crisis. 

f\~) 1 f\7~? 

Four countries' declarations of understanding to Protocol I to the 1949 
Geneva Conventions state that as to protection of civilians in Article 51, protec- 
tion of civilian objects in Article 52, and precautions to be taken in attacks, 
stated in Article 57, a commander should be liable based on a commander's as- 
sessment of information available at the relevant time, i.e., when the decision is 
taken. Two of the 1980 Conventional Weapons Convention's four protocols 
have similar terms, i.e., a commander is only bound by information available when 
a decision to attack is made. 

Protocol I, with its understandings, and the Conventional Weapons Conven- 

no 

tion are well on their way to wide acceptance among States. These treaties' 
common statement that commanders will be held accountable based on informa- 
tion they had at the time for determining whether attacks are necessary and pro- 
portional has become a nearly universal norm. The San Remo Manual has 
recognized it as the standard for naval warfare, and in 1999 the Second Protocol to 

629 

the 1954 Hague Cultural Property Convention also adopted this standard. It can 
be said with fair confidence that this is the customary standard for jus in helium. It 
should be the standard for jus ad helium. A national leader directing a self-defense 
response, whether it be reactive or anticipatory in nature, should be held to the 
same standard. That leader should be held accountable for what he or she, or those 
reporting to him or her, knew or reasonably should have known, when a decision 
to respond in self-defense is made. 



World Public Order 161 



There is no public record of what those who initiated self-defense measures, 
whether in reaction to an attack or in anticipation of one, knew or should have 
known, as was the case in the Nuremberg or Tokyo trials. Therefore, there can 
be no appraisal of whether the temporal standard was met during the Tanker War. 

2. Related Issues 

a. State of Necessity and S elf-Preservation in the Charter Era. State of necessity 
and the now-outmoded concept of self-preservation have often been confused, 
sometimes with the notion that necessity as a component of self-defense or the 
LOAC may be so intense that in a situation involving survival of the State that ne- 
cessity overrides all other factors to permit any action by the target State. This 
claim of self-preservation, or self-help, is now inadmissible. A state may, however, 
respond in self-defense. 

There is, however, a separate, distinct concept of necessity, apart from a similar 
term that is a conditioning factor for self-defense or the LOAC, in that in a separate 
claim of state of necessity, a State against whom action is taken ("a third State") has 
committed no wrong against a State that takes the action (an "acting State"), and 
an acting State does not consider itself the third State's target. In self-defense, a tar- 
get State seeks to defend against aggression by a country in the position of a third 
State, i.e., the aggressor. State of necessity can be invoked "to preclude the 
wrongfulness of conduct adopted in certain conditions ... to protect an essential 
interest of the [target] State, without [the latter's] existence being in any way 

f.3'2 

threatened. " There remain cases "where a . . . [right] of a [third] State can be sac- 
rificed for the sake of a vital interest of the [target] State which would otherwise be 
obliged to respect that right." 

Not all commentators agree on the state of necessity doctrine today. How- 
ever, LOS Convention, Article 221 allows States "to take [proportionate] mea- 
sures, in accordance with international law, beyond the limits of the territorial 
sea" to protect their coastline "or related interests, including fishing, from grave 
and imminent danger" from pollution or the threat of pollution. The Intervention 
Convention is to the same effect. " These provisions would have vindicated UK 
action in bombing the derelict Torrey Canyon after that Liberian-registered vessel 
grounded off Britain, threatening the English coast and its population. " Al- 
though frequently decided on other grounds, ICJ decisions and international arbi- 
trations have recognized the doctrine in many contexts. 

The record of State practice and other sources is thus less than clear, but the In- 
ternational Law Commission Special Rapporteur summarizes state of necessity 
and its scope today, provided a target State invoking state of necessity acts propor- 
tionally to a peril: 



162 The Tanker War 



Article 33. State of necessity 

1 . A state of necessity may not be invoked by a State as a ground for preclud- 
ing the wrongfulness of an act of that State not in conformity with an in- 
ternational obligation of the State unless: 

(a) the act was the only means of safeguarding an essential interest of the 
State against a grave and imminent peril; and 

(b) the act did not seriously impair an essential interest of the State to- 
wards which the obligation existed. 

2. In any case, a state of necessity may not be invoked by a State as a ground 
for precluding wrongfulness: 

(a) if the international obligation with which the act of the State is not in 
conformity arises out of a peremptory norm of general international 
law; or 

(b) if the international obligation with which the act of the State is not in 
conformity is laid down by a treaty which, explicitly or implicitly, 
excludes the possibility of invoking the state of necessity with re- 
spect to that obligation; or 

(c) if the State in question has contributed to the occurrence of the state 
of necessity. 

The Commission draft also says: "[Wrongfulness of an act of a State not in confor- 
mity with an international obligation of that State is precluded if the act consti- 

639 

tutes a lawful measure of self-defence taken in conformity with the Charter. . . 
Tanker War participants did not claim state of necessity for their actions, but they 
could have. 

The primary example is US and other States' protecting third-State crews 
from attacks by Iranian speedboats and aircraft. Self-defense permitted protect- 
ing vessels flagged under the ensign of a covering warship or aircraft or protec- 
tion of nationals of the same State and, upon request, third-State crews. States 
have a general obligation to act to preserve life at sea, independent of an ongoing 
armed conflict. This obligation carries with it a right to engage in necessary 
and proportionate response, in the nature of self-defense, with respect to such 
ships and personnel. The right to respond could also be based on a theory of state 
of necessity. 

A clearer case involved the Nowruz oil slick created by Iraqi attacks in 1983. 
Although the slick dissipated without any State's having taken action, littoral 
countries threatened with loss of coastal fisheries or desalination plants could have 
acted proportionally with force to eliminate the leakage from Iranian platforms. 
Similarly, if petroleum leakage from vessels hit on the high seas of the Persian Gulf 



World Public Order 163 



was serious enough and threatened a coastal State's shore or other interests, that 
State could have acted to intervene. Precedent for this is clear. During the 
1990-91 war, US aircraft, as a defensive measure, bombed oil manifolds at termi- 
nals in occupied Kuwait opened by Iraq. Besides risk to coalition warships, there 
was risk to western Gulf coastal fisheries and desalination plant intakes. Kuwai- 
ti permission was undoubtedly given, but if it had not, the strikes could have been 
justified by the state of necessity doctrine. 

b. Retorsion. A retorsion, or retortion, is a lawful but unfriendly response of a tar- 
get State to another state's unfriendly practice or act whether illegal or not, to co- 
erce the latter to discontinue that practice or act. Commentators agree that a 
retorsionary response must be proportional. 

During the Tanker War, the US defensive bubble or cordon sanitaire warnings in 
NOTAMs or NOTMARs may have seemed unfriendly acts, but they were legiti- 
mate warnings of the right of self-defense if an aircraft or vessel came within 
range. Accompanying, escorting or offering protection to merchantmen not 
carrying warfighting or war-sustaining goods to belligerent ports, including out- 
bound cargoes of Kuwaiti or Saudi petroleum, may have seemed unfriendly, if le- 
gal, acts to the belligerents, particularly Iran. Iran's naval maneuvers in its 
territorial sea were legal, but they may have seemed unfriendly acts to its neigh- 
bors or to some navies. These retorsions were proportional. 

Part B. UN Mechanisms for Breaches of the Peace, Threats to the 

Peace, and Aggression 

If there has been uneven development of Charter norms as a coherent body of 
law for States' individual or collective responses to breaches of the peace, threats to 
the peace, or aggression, the UN record as an Organization has been even less clear. 
This Part first examines the methodology of UN lawmaking and then sketches the 
organizational framework for UN lawmaking and in other groups permitted by the 
Charter in the context of situations involving the law of naval warfare. 

/. Making the Rules and Stating the Principles: The Security Council 

Aside from General Assembly competence for UN Membership, the budget and 
trust territories, the only source of positive, primary-source norms is the Se- 
curity Council. Under Charter Articles 25 and 48, Members agree to carry out "de- 
cisions," particularly those related to action to maintain international peace and 
security. *" However, the Charter also gives the Council authority to make 
nonbinding "recommendations" for pacific settlement of disputes, and "recom- 
mendations" on issues involving breaches of the peace, threats to the peace or ag- 
gression. It may "call upon" parties to resolve a dispute, whether it threatens the 
peace or not, and it can "call upon" Members for measures to assist in enforcing 



164 The Tanker War 



decisions. Recommendations and authority to "call upon" Members for action 
are nonbinding, although "call upon" connotes a stronger prescriptive principle 
than recommendations; if a call for action is coupled with a decision, the call is 
binding. A further restriction on Council practice is that Article 25 decisions 
can only be taken under Chapter VII, dealing with breaches of the peace, threats to 
the peace and aggression, and with an Article 39 determination to that effect. 
Thus although Article 25 appears in the Charter just before Chapter VI, stating the 
Council role in pacific dispute settlement, it has been used along with Article 48 
for Chapter VII decisions. 

The narrow problem is whether the Council has made a decision. The Namibia 
opinion declared principles of resolution interpretation; there must be reference 
to "terms of the resolution to be interpreted, the discussions leading to it, the Char- 
ter provisions invoked and, in general, all circumstances that might assist in deter- 
mining the legal consequences of the resolution . . ." In other words, when is a 
Council resolution a binding decision? Or, perhaps more important for this 
analysis, when is what appears to be a binding decision nothing more than a 
nonbinding recommendation, although not so styled? 

Analysis of Council decisionmaking — in the broad, nontechnical sense of the 
word — reveals a trend toward establishing norms affecting law of naval warfare 
standards. 

a. The Korean War. Bailey has aptly summarized Council actions for the Korean 
War: "The . . . Council decisions on military enforcement . . . were not binding and, 
indeed, were only possible because of the fortuitous absence of the Soviet Un- 
ion." Resolution 82, calling for ceasing hostilities, calling upon North Korea to 
withdraw north of the 38th parallel and calling upon Members to assist the United 
Nations, was recommendatory, being issued under Articles 39-41. The Sec- 
retary-General felt there had been only a threat to the peace, the United States 
charged aggression had occurred, and the Council toned down the Resolution to 
find a "breach of the peace." Resolution 83 followed two days later, recommend- 
ing that Members assist South Korea "to repel the armed attack and to restore in- 
ternational peace and security in the area," finding North Korea had breached the 
peace. Besides welcoming assistance given South Korea, and "Recommend[ing]" 
that Members make forces and assistance available to the United States as head of a 
unified command, Resolution 84 followed the pattern. The only decision of the 
war was a Council invitation to the PRC to be present for its discussion of a UN Ko- 
rean command special report. With the USSR's return and its veto in the Coun- 

f."jr\ 

cil, UN lawmaking potential shifted to the Assembly. 

b. Arab-Israeli Conflicts. The Arab-Israeli conflicts generated positive lawmaking 
before and after the Korean War. 



World Public Order 165 



After hortatory resolutions based on Articles 39 and 40, Resolution 50 (1948) 
called upon Governments and authorities to stop importing or exporting war ma- 
terial into or to Palestine, Egypt, Iraq, Lebanon, Saudi Arabia, Syria, Transjordan 
or Yemen during a recommended ceasefire. It "Decide[d]" that if this resolution 
were rejected, or later repudiated or violated, "the situation . . . [would] be recon- 
sidered with a view to action under Chapter VII," i.e., for possible measures involv- 
ing force. This, the Council's first attempt to define and regulate warfighting/ 
war-sustaining material, was only recommendatory. The only decision was for 
further action if the parties rejected the resolution's terms. Later resolutions "Or- 
der[ed]" a cease-fire, "Decide[d]" the belligerents' responsibility under the cease- 
fire, and "Decide[d]" on an armistice. After a recommendatory call upon the 
belligerents for a ceasefire late in 1948, the Council "Reaffirm [ed]" its prior "or- 

67S 

der" for ceasefire and obeying armistice agreements. These were binding in na- 
ture. When fighting broke out again in 1951, the Council called upon parties for a 
ceasefire, reminding them of Chapter VI obligations to settle disputes by peaceful 
means. In September 1951 Resolution 95 "not[ed] . . . present practice of 
[Egypt's] interfering with the passage through the Suez Canal of goods destined for 
Israel" and "[found] further that such practice [was] an abuse of the exercise of the 
right of visit, search and seizuref.]" The Resolution "Further [found] that the 
practice in the prevailing circumstances cannot be justified on the ground that it is 
necessary for self- defence [,]" and noted that 

. . . restrictions on the passage of goods through the Suez Canal to Israel ports are 
denying to nations at no time connected with the conflict in Palestine valuable 
supplies required for their economic reconstruction, and that these restrictions 
together with sanctions applied by Egypt to certain ships which have visited Israel 
ports represent unjustified inferference with the rights of nations to navigate the seas 
and to trade freely with one another, including the Arab States and Israel[.] 

The Resolution concluded by "Call[ing] upon Egypt to terminate the restrictions 
on the passage of international commercial shipping and goods through the Suez 
Canal wherever bound and to cease all interference with such shipping beyond 
that essential to the safety of shipping in the Canal itself and to the observance of. . . 
conventions in force." Because it ended with a recommendatory "call" upon 
Egypt under Article 40, the Resolution could not be considered binding. However, 
the Resolution declaration that seizures in the Canal abused traditional rules had 
evidentiary weight as to a norm. Resolution 101 (1953) similarly "[found] that 
the retaliatory action at Qibya taken by . . . Israel on 14-15 October 1953 and all 
such actions constitute^ violations of the ceasefire, the armistice] and the Char- 

679 

ter " Israel was censured. In 1955 Israel was "Condemned] for a similar at- 

tack as inconsistent with [the armstice] and under the . . . Charter." The next 
year an attack on Syria was "Condemned]" after Israel experienced interference 



166 The Tanker War 



c g I 

using Lake Tiberias by Syria in violation of the armistice. In 1962, after ex- 
changes of fire between Syria and Israel, Resolution 171 "call[ed] upon the two 
Governments ... to comply with their obligations under . . . the Charter by refrain- 
ing from the threat as well as the use of force." The Council reaffirmed its prior res- 
olution condemning retaliatory breaches of the armistice, and determined that 
Israel's attack on March 16-17 was "a flagrant violation of that resolution." A 
"grave Israel military action" in southern Hebron against Jordan in 1966 earned 
Israel a censure. The Council "Emphasize[d] . . . that . . . military reprisal cannot be 
tolerated and that, if . . . repeated, the . . . Council [would] consider further and 
more effective steps as envisaged in the Charter to ensure against the repetition of 
such acts. 

When the 1967 war broke out, the Council called upon the belligerents for a 
ceasefire and ceasing military activities, on the model of the opening of the Korean 
War. Later resolutions "Demand[ed]" a ceasefire and observance of it. Reso- 
lution 237 only "Recommend[ed]" compliance with the Third Convention, but 
Resolution 242 "Affirm[ed] . . . the necessity . . . [f]or guaranteeing freedom of navi- 

f\R7 

gation through international waterways in the area[.]" ' Resolutions 248 and 256 
condemned the "large-scale and massive" or "large scale and carefully planned" at- 
tacks on Jordan in response to Jordanian violations of the ceasefire in 1968. A 
1969 resolution condemned similar "preplanned" Israeli air attacks on Jordanian 
population centers as a "flagrant" violation of the Charter and the cease-fire resolu- 
tions. It repeated a previous resolution's warning, that the Council would meet 
again "to consider further and more effective steps as envisaged in the Charter to 

689 

ensure against repetition of such attacks." 

The 1 973 war precipitated a Council call for ending hostilities and a ceasefire. 

In 1981, while Iraq was heavily committed in its war with Iran, Israeli aircraft 
struck an Iraqi nuclear facility near Baghdad. Israel claimed a right of anticipatory 
self-defense in that the facility was manufacturing nuclear weapons to be used 
against Israel. Upon Iraq's complaint, the Council cited Charter Article 2(4) 
and "[sjtrongly condemned] the military attack by Israel in clear violation of the 
Charter . . . and the norms of international conduct." The Council called upon Is- 
rael to refrain from any such acts or threats in the future and stated that Iraq was 
entitled to "appropriate redress, responsibility for which has been acknowledged 
by Israel." 693 

In 1982, the Council "[d]emand[ed] that . . . Israel lift immediately the blockade 
of the city of Beirut ... to permit the dispatch of supplies to meet the urgent needs 
of the civilian population and allow the distribution of aid" by UN agencies and 
nongovernmental organizations, particularly the ICRC. The resolution referred to 
other resolutions citing the 1949 Geneva Conventions and "regulations attached 
to the Hague Convention of 1907." 694 



World Public Order 167 



c. Rhodesia: 1965-79. The Rhodesia decolonization process, which included em- 
bargo and maritime interdiction before Zimbabwe independence was assured, be- 
gan with General Assembly action. Assembly resolutions noted "a threat to 

freedom, peace and security in Africa," and called upon States to refrain from ren- 

695 
dering assistance to Rhodesia. Rhodesia unilaterally declared independence, 

and the Assembly "[i]nvite[d]" the United Kingdom to implement the Assembly 

resolutions and "Recommend[ed that] the . . . Council . . . consider [the] situation 

r »696 

as a matter of urgency. 

Condemning the independence declaration, the Council first "[d]ecide[d] to 
call upon all States ... to refrain from rendering any assistance to this illegal re- 

697 

gime." Resolution 217 called upon the UK Government to quell the rebellion 
and "to take all other appropriate measures which would prove effective in elimi- 
nating the authority of the usurpers . . ." The Council also called upon States to de- 
sist from providing arms to Rhodesia and to break economic relations, "including 
an embargo on oil and petroleum products." Continuance of the rebellion was de- 

698 

termined to be "in time a threat to international peace and security." Thereafter 

699 
the United Kingdom declined to intercept Beira-bound tankers. The Council 

then passed Resolution 221, which "[c]all[ed] upon" Portugal to deny pier and 
pumping facilities and "[c]all[ed] upon all States" to divert their vessels "reason- 
ably believed to be carrying oil destined for . . .Rhodesia which may be en route for 
Beira." The Council also "[c]all[ed] upon" the United Kingdom "to prevent, by 
the use of force if necessary, the arrival at Beira of vessels reasonably believed to be 
carrying oil destined for . . . Rhodesia." Specific authority was given to arrest and 
detain Joanna V upon departure from Beira if she discharged petroleum cargo 
there. The United Kingdom acted upon this resolution, stopping possible 

701 

blockade runners. 

A month later the Council, "Acting in accordance with Articles 39-41" of the 
Charter, determined the Rhodesia situation was a threat to international peace and 
security. The Council "Decid[ed] that . . . Members . . . shall prevent:" 

(a) The import into their territories of asbestos, iron ore, chrome, pig-iron, sugar, 
tobacco, copper, meat and meat products and hides, skins and leather origi- 
nating in . . . Rhodesia and exported therefrom after the date of the present 
resolution; 

(b) Any activities by their nationals or in their territories which promote or are 
calculated to promote the export of these commodities from . . . Rhodesia and 
any dealings by their nationals or in their territories in any of these commodi- 
ties originating in . . . Rhodesia and exported therefrom after the date of the 
present resolution, including in particular any transfer of funds to . . .Rhodesia 
for such activities or dealings; 

(c) Shipment in vessels . . . of their registration of any of these commodities origi- 
nating in . . . Rhodesia and exported therefrom after the date of the present 
resolution; 



168 The Tanker War 



(d) Any activities by their nationals or in their territories which promote or are 
calculated to promote the sale or shipment to . . . Rhodesia of arms, ammuni- 
tion of all types, military aircraft, military vehicles, and equipment and mate- 
rials for the manufacture and maintenance of arms and ammunition in . . . 
Rhodesia; 

(e) Any activities by their nationals or in their territories which promote or are 
calculated to promote the supply to . . . Rhodesia of all other aircraft and motor 
vehicles and of equipment and materials for the manufacture, assembly, or 
maintenance of aircraft and motor vehicles in . . . Rhodesia; the shipment in 
vessels . . . of their registration of any such goods destined for . . . Rhodesia; 
and any activities by their nationals or in their territories which promote or 
are calculated to promote the manufacture or assembly of aircraft or motor ve- 
hicles in . . . Rhodesia; 

(f) Participation in their territories or territories under their administration or in 
land or air transport facilities or by their nationals or vessels of their registra- 
tion in the supply of oil or oil products to . . . Rhodesia; notwithstanding any 
contracts entered into or licenses granted before the date of the present 
resolution[.] 

Members were "[r]emind[ed]" of obligations under Article 25; the resolution also 

702 

"[c]all[ed] upon" them to carry out "this decision of the . . . Council.'" 

Resolution 253 followed in 1968; "[reaffirming its determination that the . . . 
situation in . . . Rhodesia constitute[d] a threat to international peace and security 
[and ajcting under Chapter VII of the Charter . . .," the Council "[d]ecide[d] that . . . 
Members . . . shall prevent": 

(a) The import into their territories of all commodities and products originating 
in . . . Rhodesia and exported therefrom after the date of this resolution 
(whether or not the commodities or products are for consumption or process- 
ing in their territories, whether or not they are imported in bond and whether 
or not any special legal status with respect to the import of goods is enjoyed by 
the port or other place where they are imported or stored); 

(b) Any activities by their nationals or in their territories which would promote 
or are calculated to promote the export of any commodities or products 
from . . . Rhodesia; and any dealings by their nationals or in their territories in 
any commodities or products originating in . . . Rhodesia and exported there- 
from after the date of this resolution, including . . . transfer of funds to . . . 
Rhodesia for the purposes of such activities or dealings; 

(c) The shipment in vessels ... of their registration or under charter to their na- 
tionals . . . of any commodities or products originating in . . . Rhodesia and ex- 
ported therefrom after the date of this resolution; 

(d) The sale or supply by their nationals or from their territories of any commodi- 
ties or products (whether or not originating in their territories, but not in- 
cluding supplies intended strictly for medical purposes, educational 
equipment and material for use in schools and other educational institutions, 
publications, news material and, in special humanitarian circumstances, 
food-stuffs) to any person or body in . . . Rhodesia or to any other person or 






World Public Order 169 



body for . . . any business carried on in or operated from . . . Rhodesia, and any 
activities by their nationals or in their territories which promote or are calcu- 
lated to promote such sale or supply; 
(e) The shipment in vessels . . . of their registration, or under charter to their na- 
tionals, . . . of any such commodities or products which are consigned to any 
person or body in . . . Rhodesia, or to any other person or body for the purposes 
of any business carried on in or operated from . . . Rhodesia[.] 

Members were again reminded of Article 25 obligations. The Council established 

703 

a Committee to receive reports and obtain information. In 1970 the Council 
"[d]ecide[d]," in accordance with Article 41, "that Members would inter alia, 
sever all trade and transportation ties with Rhodesia; the Council" "[r]equest[ed]" 
the UK government to rescind all trade, etc., agreements with Rhodesia and 
"[R]equest[ed]" that Members "take all possible further action under Article 41 of 
the Charter [i.e., options not involving the use of force], . . . not excluding any . . . 
measures provided in that Article[.]" 

In 1972 Resolution 314 deplored the failure of States to abide by the embargo 
sanctions and declared that any national legislation to the contrary "would under- 

705 

mine sanctions and would be contrary to the obligations of States." In 1973 
Resolution 333 "[c]all[ed] upon" States to enact legislation "providing for the im- 
position of severe penalties" for evasion or breach of sanctions. It also 

5. Requested] States, in the event of their trading with South Africa and Portu- 
gal, to provide that purchase contracts with those countries should clearly 
stipulate, in a manner legally enforceable, the prohibition of dealing in goods 
of . . . Rhodesian origin; likewise, sales contracts with these countries should 
include a prohibition of resale or re-export of goods to . . . Rhodesia; 

6. Call[ed] upon States to pass legislation forbidding insurance companies under 
their jurisdiction from covering air flights into and out of . . . Rhodesia and in- 
dividuals or air cargo carried on them; 

7. Call[ed] upon States to undertake appropriate legislative measures to ensure 
that all valid marine insurance contracts contain specific provisions that no 
goods of . . . Rhodesian origin or destined to . . . Rhodesia shall be covered by 
such contracts; 

8. Call[ed] upon States to inform the Committee established in pursuance of reso- 
lution 253 (1968) on their present sources of supply and quantities of chrome, 
asbestos, nickel, pig iron, tobacco, meat and sugar, together with the quanti- 
ties of these goods they obtained from . . . Rhodesia before the application of 
sanctions. 706 

The economic noose was tightened further in 1976 by Resolution 388, decided un- 
der Chapter VII of the Charter, that Members would ensure that their nationals 
and persons in their territories did not insure: 



170 The Tanker War 



(a) Any commodities or products exported from . . . Rhodesia after the date of the 
present resolution in contravention of . . . resolution 253 (1968) which they 
know or have reasonable cause to believe to have been so exported; 

(b) Any commodities or products which they know or have reasonable cause to 
believe to be destined or intended for importation into . . . Rhodesia after the 
date of the present resolution in contravention of resolution 253 (1968); 

(c) Commodities, products or other property in . . . Rhodesia of any commercial, 
industrial or public utility undertaking in . . . Rhodesia, in contravention of 
resolution 253 (1968)[.] 

The Council also decided that 

. . . Member States shall take appropriate measures to prevent their nationals and 
persons in their Territories from granting to any commercial, industrial or public 
utility undertaking in . . . Rhodesia the right to use any trade name or from entering 
into any franchising agreement involving the use of any trade name, trade mark or 
registered design in connexion with the sale or distribution of any products, 
commodities or services of such an undertaking^] 707 

The same approach (graduated embargo, Committee reporting system) under 

708 

Chapter VII of the Charter was employed with respect to South Africa. 

709 

Majority rule came in 1979, and the sanctions were lifted that year. 

The General Assembly also played a role in the transition to Zimbabwe. Besides 

710 711 

passing nonbinding resolutions within its sphere, the Council cited the As- 
sembly's prior law-declaring resolutions, e.g., the Declaration on Granting of In- 

712 

dependence to Colonial Countries and Peoples. 

d. India-Pakistan: 1965, 1971. The 1965 naval war was part of a renewed conflict be- 
tween India and Pakistan. The Security Council, as in other situations, "[c]all[ed]" 
upon the belligerents to take steps for a cease-fire and to respect the frontier line at 

713 

issue. The 1971 war was over so quickly that Council Resolution 307 only noted 
the Pakistani agreement to a cease fire and "[d]emand[ed]" compliance with it. 

e. Falklands/Malvinas: 1982. Two Council resolutions impacted this relatively 
brief conflict. Resolution 502 was stronger than many initial responses to a crisis. 
Finding "a breach of the peace," the Council "[d]emand[ed]" immediate cessation 
of hostilities and withdrawal of Argentine forces from the Falklands/Malvinas and 

"[c]all[ed] on . . . Argentina and the United Kingdom ... to seek a diplomatic solu- 

715 
tion . . . and to respect fully the purposes and principles of the Charter." The sec- 
ond resolution "[u]rge[d]" parties to cooperate with the Secretary-General's good 
offices efforts. 

/. The Iran-Iraq Conflict and the Tanker War, 1980-88. As Charter era conflicts 
went, the Iran-Iraq war was a long, eight-year affair with heavy losses all around. 



World Public Order 171 

717 

Security Council action was relatively minimal: 17 resolutions in that time. 
Several bear upon the Tanker War and the law of naval warfare. 

718 

Resolution 479 (September 23, 1980, issued shortly after the war began) 
"[c]all[ed] upon" the belligerents to refrain immediately from further use of force 
and to settle the dispute "by peaceful means and in conformity with international 
law," echoing Charter Article 33. The resolution"[w]rg£[<i]" Iran and Iraq to accept 
mediation, conciliation, resort to regional agencies or arrangements or other 
peaceful means. It "[c]all[ed] upon" States to exercise restraint and to refrain from 
anything to further escalate and widen the conflict. The Secretary-General's offer 

719 

to suggest good offices was supported. Although it did not mention freedom of 
navigation, Japan and the United States stressed the primary importance of that 

720 

principle. Iraq accepted Resolution 479, denying it had any territorial ambi- 

721 

tions; Iran rejected it, demanding condemnation of Iraqi aggression. In Octo- 
ber, however, Iraq rejected a UN good offices offer to allow 70 merchantmen 
trapped in the Shatt al-Arab by the war to depart under a UN or perhaps an ICRC 

722 

flag; Iran accepted the proposal. 

Nearly two years later, Resolution 514 again u [c]all[ed]for" 2l ceasefire and bel- 
ligerent forces' withdrawal. The Council "[d]ecid[ed] to dispatch a team of [UN] 
observers to verify, confirm and supervise the ceasefire and withdrawal." Con- 
tinuing Secretary-General mediation efforts was "[u]rge[d]." Other States were 
again asked to abstain from action that might contribute to continuation of the 

723 

conflict. An October 4, 1982 resolution was in the same vein, and welcomed a 
"part[y's]" (Iraq's) acceptance of Resolution 514's terms and "call[ed] upon the 
other [Iran] to do likewise[.]" 

Resolution 540 (1983) deplored mutual destruction of civilian lives, cities, 
property and economic infrastructures. The Council condemned violations of hu- 
manitarian law, particularly that stated in the First through the Fourth Conven- 
tions, and called for "cessation of all military operations against civilian targets, 
including city and residential areas[.]" Resolution 540 "[a]ffirm[ed]" 

. . . the right of free navigation and commerce in international waters, call[ed] on 
all States to respect this right and also call[ed] upon the belligerents to cease 
immediately all hostilities in the region of the Gulf, including all sea-lanes, navigable 
waterways, harbour works, terminals, offshore installations and all ports with direct 
or indirect access to the sea, and to respect the integrity of the other littoral States[.] 

It also "[c]a//[^] upon both parties to refrain from any action that [might] endan- 
ger international peace and security as well as marine life in the region of the 
Gulf." 725 

In June 1984 Resolution 552 responded to a letter from the GCC States (Bah- 

77 ft 

rain, Kuwait, Oman, Qatar, Saudi Arabia, UAE) complaining of Iranian acts of 
aggression on the freedom of navigation to and from their ports. Although Iran 



172 The Tanker War 



justified its attacks on reaction against aid to Iraq by States in the region and on 
other bases, the Council heard States and the Arab League's complaints concern- 

727 

ing ship attacks and the right of freedom of navigation, and passed Resolution 
552. The Council, 

Noting that Member States pledged to live together in peace with one another as 
good neighbours in accordance with the Charter . . . , 

Reaffirming the obligations of Member States with respect to the principles and 
purposes of the Charter, 

Reaffirming also that all Member States are obliged to refrain in their international 
relations from the threat or use of force against the territorial integrity or political 
independence of any State, 

Taking into consideration the importance of the Gulf region to international peace 
and security and its vital role to the stability of the world economy, 

Deeply concerned over the recent attacks on commercial ships en route to and from 
the ports of Kuwait and Saudi Arabia, 

Convinced that these attacks constitute a threat to the safety and stability of the 
area and have serious implications for international peace and security, 

1. Call[ed] upon all States to respect, in accordance with international law, the 
right of free navigation; 

2. Reaffirmed] the right of free navigation in international waters and sea lanes 
for shipping en route to and from all ports and installations of the littoral 
States . . . not parties to the hostilities; 

3. Call[ed] upon all States to respect the territorial integrity of the States . . . not 
parties to the hostilities and to exercise the utmost restraint and to refrain 
from any act which may lead to a further escalation and widening of the 
conflict; 

4. Condemned] the recent attacks on commercial ships en route to and from the 
ports of Kuwait and Saudi Arabia; 

5. Demand[ed] that such attacks should cease forthwith and that there should be 
no interference with ships en route to and from States . . . not parties to the 
hostilities; 

6. Decide[ed] in the event of non-compliance with the present resolution, to meet 
again to consider effective measures . . . commensurate with the gravity of the 
situation ... to ensure the freedom of navigation in the area[.l 

The Council requested the Secretary-General to report on progress in implement- 

728 

ing the resolution. 

Resolutions 540 and 552 had no lasting effect. In February 1986 Resolution 582 
"[d]eplore[d] . . . escalation of the conflict, especially . . . attacks on neutral shipping 
or civilian aircraft, the violation of international humanitarian law and other laws 
of armed conflict and, in particular, the use of chemical weapons contrary to . . . the 
Geneva Protocol." It also "[c]all[ed] upon . . . Iran and Iraq to observe an immediate 
cease-fire, a cessation of all hostilities on land, at sea and in the air," to withdraw 
their forces behind their borders, and called upon the belligerents to submit the 
conflict to mediation or other peaceful settlement methods. The now-familiar 



World Public Order 173 



provision, calling upon other States to refrain from escalating or widening the con- 

729 

flict, was also included. Resolution 588 (October 1986) expressed alarm over the 
continuing and intensifying conflict and called upon the belligerents to imple- 

730 

ment Resolution 582. 

Resolution 598 (July 1987) again "[d]eplore[d] . . . attacks on neutral shipping or 
civilian aircraft, the violation of international humanitarian law and other laws of 
armed conflict and, in particular, the use of chemical weapons contrary to . . . the 
1925 Geneva Protocol[.]" Citing Articles 39 and 40 of the Charter, the Council 
"[a]ct[ed]" "[d]emand[ing] that. . . Iran and Iraq observe an immediate cease- 
fire " Other States were admonished not to escalate or widen the war. The Secre- 
tary-General was requested to explore, in consultation with the belligerents, en- 
trusting an impartial body with inquiring into responsibility for the conflict and a 

731 

report to the Council. This was the first time the Council cited Chapter VII of 
the Charter (threats to the peace, etc.) during the war. Iraq accepted Resolution 598 

732 

almost immediately. The European Community, the Arab League, NATO 
countries and the GCC passed resolutions supporting Resolution 598, the GCC 
urging the Security Council to implement it. The US Secretary of State and other 

733 

foreign ministers referred to the binding nature of Resolution 598. 

During 1987 a UN naval force was discussed; Italy and the United States had 
supported the idea, the United Kingdom was unenthusiastic, and the United 
States was willing to consider it but only if a collective action concept was spelled 
out clearly. The United States would not support a UN force replacing US and 
US-aligned forces. The idea got nowhere. 

735 

Resolution 612 again condemned chemical warfare in May 1988. Iran ac- 

736 

cepted Resolution 598 in August 1998, and a ceasefire ended hostilities. Subse- 
quent resolutions, 1988-91, condemned use of chemical weapons, called upon 
States to control export of such to the belligerents, established the UN Iran-Iraq 
Military Observer Group (UNIIMOG) to supervise the ceasefire, and disbanded 

737 

UNIIMOG in 1991 with intensification of the crisis over Kuwait. 

g. Appraisal of Security Council Lawmaking. Security Council intervention with 
binding or recommended norms affecting war at sea has been episodic and often 
limited. There are several reasons for this. 

Use of the veto, at first largely by the USSR and later by other permanent Coun- 

738 

cil members (France, Great Britain, United States), has affected lawmaking for 
some maritime conflicts. Permanent members filed vetoes on these maritime inci- 
dents or wars: Corfu Channel, 1947; Korean War; Arab-Israeli conflicts; India- 

739 

Pakistan, 1971; Rhodesia; Falklands/Malvinas. In some cases, Council agenda 
items have been withdrawn, or the problem has disappeared with time. Time 
has been a critical factor in some, but not all, modern conflicts; the Arab-Israeli 
Six-Day War and the 1971 India-Pakistan conflict are two examples where military 



1 74 The Tanker War 



action was over within weeks. Even though the Council may be "organized . . . 
to function continuously," perhaps with the most modern telecommunications 
facilities, the relatively rapid pace of events can outstrip deliberation, debate and 
resolution negotiations and drafting. 

Whether the Council can consider a matter depends on discretion of UN Mem- 
bers (whether Council members or not), countries that are not UN Members, the 
General Assembly, or the Secretary-General, in bringing matters involving inter- 
national peace and security to the Council's attention. The Council can initiate its 
own investigation, but that involves discretion before acting on a resolution. 
The Secretary-General could perhaps report through his or her inherent power as 
head of the UN Secretariat. And while this list may seem impressive, there is 
nothing to stop individual States from attempting to settle a dispute by means 
other than Council action, perhaps by negotiations with agreement that the issue 
not be presented to the Council, or referral to a regional organization, the latter of 
which occurred during the Cuban Missile Crisis. 

The implications of a veto may have influenced the relative strength of resolu- 
tions. For example, the Korean War resolutions were only recommendatory in na- 
ture. More recently, however, the Council has demonstrated the capacity to 
approve decisions under Articles 25 and 48, at least where permanent members 

"7 A O *7 A C\ 

concur with the action, must abstain, or choose to abstain. The latter has oc- 
curred occasionally in situations related to armed conflict or the potential for 

750 

armed conflict. 

A more serious problem has been the language of resolutions. Obviously, if a 
resolution recommends certain action, that course is optional with UN Members. 

751 

There have been many affecting the law of naval warfare. Equally obviously, if 
the Council "decides" that a State "shall" take certain action, that resolution is 

752 

mandatory. There have been few of these. Is a resolution "calling upon" Mem- 

753 

bers mandatory? Respectable authority has differed on the point, and the record 
of compliance is mixed. For example, the United Kingdom complied when called 
upon to interdict tankers during the Rhodesia transition, but the record is 

equally clear that Iran largely ignored Council calls during the Tanker War, per- 

755 
haps until forced to comply by outside pressures. (To be sure, Iran accepted Res- 

756 

olution 598 after prior Iraqi acceptance of it, with a resulting ceasefire. Iraq's 

757 

"acceptance" record of these resolutions was better, but "accepting" them con- 
noted their nonmandatory nature to the belligerents. In the near term, immedi- 
ately after passage of a call for action, about the only sure method is to observe what 
States do with the call for action and whether they appear to respond out of a sense 
of legal obligation. This choice, like Council decisions that are clearly mandatory 

758 

under the Charter, is not an option for a military commander. A commander 
must await the executive decision to comply with the call, and how Council calls 
for action and decisions will be implemented, since they are frequently imprecise, 



World Public Order 175 



and deliberately so, as the Council is addressing a congery of over 180 countries 
with widely varying resources. 

Since the UN's earliest days Council resolutions have been involved with 

759 

maritime and law of naval warfare issues. Although nearly all of these resolu- 
tions have not carried the binding authority of decisions under Articles 25 and 48, 
they do have a sort of "soft law" weight, which when implemented over an undeter- 
mined amount of time, may ripen into custom, the oldest source of international 

7f>0 

law. Moreover, to the extent that the Council can act in relative concert and in 
confidence that there will be no veto threat, the future may see more strongly 
worded resolutions that are nonmandatory in nature, or decisions that bind all UN 
Members. The result in the future is that these resolutions, general as they often 
are, may dictate the content of naval warfare in the case of Council decisions, or be 
informed by it, much as self-defense considerations may be informed by the con- 
tent of naval warfare. 

2. Making the Rules and Stating the Principles: The General Assembly 

The Charter gives the General Assembly only recommendatory powers in the 
international peace and security arena, and then only to the extent that the Council 
is not seized of a matter. Two practices have developed: recommendations un- 
der the Uniting For Peace (UFP) Resolution, and concurrent action with the Secu- 
rity Council. 

a. The UFP Resolution. When the Soviet Union returned to the Council and be- 
gan vetoing resolutions connected with the UN Command in Korea's prosecut- 
ing that war, the United States led passage of the UFP Resolution, which provides 
that if the Council, 

because of lack of unanimity of the permanent members, fails to exercise its 
primary responsibility for the maintenance of international peace and security . . . 
where there appears to be a threat to the peace, breach of the peace, or act of 
aggression, the . . . Assembly shall consider the matter immediately with a view to 
making appropriate recommendations to Members for collective measures, 
including, in the case of a breach of the peace or act of aggression, the use of armed 
force when necessary, to maintain or restore international peace and security. 

The Resolution also established a Collective Measures Committee (CMC) to re- 
port to the Assembly. On at least five occasions after the Korean War, the Coun- 
cil resolved to call emergency Assembly sessions, or refer claims to it. Egypt's 
nationalizing the Suez Canal (1956), revolt in Hungary (1956), Lebanon (1958), 

765 

the Congo crisis (1960), and the India-Pakistan war (1971). Although it was ar- 
gued that UFP was not legitimate under the Charter, most find for its legality; East 



176 The Tanker War 



and West have invoked it in referring disputes from the Council to the Assem- 
bly. 766 

UFP was employed in several cases. Assembly Resolution 498 found the PRC 
had committed aggression during the Korean War. Resolution 500 recom- 
mended a weapons and strategic materials embargo directed at the PRC and North 

HC.Q 

Korea. Resolution 997, voted by the Assembly during Britain, France and Is- 
rael's 1956 Suez Canal intervention, did not determine that a threat to or breach of 
the peace had occurred but did note that these States' forces had penetrated, or 
were operating against, Egyptian territory. They were urged to withdraw forces 

769 

and cease hostilities. 

Castenada, Higgins and others have analyzed these situations, along with those in 

770 

Hungary and the Congo. Castenada argues for development of a new customary 

771 

law arising from acquiescence of UN Members. Whether these five examples of 
conflict can amount to a new found custom is, of course, highly debatable. 
Castenada formulates this system of rules from the UFP experience; it is typical of 
arguments for Assembly lawmaking: 

1. The . . . Council, having determined that there is a threat to the peace, a breach 
of the peace, or an act of aggression, may recommend the adoption of enforce- 
ment measures, including the use of armed force, on behalf of the United Na- 
tions, and directed against states or de facto governments, without following 
the procedures and observing the requirements established in Chapter VII of 
the Charter for . . . armed force. This means that members can make available 
to the Council armed forces in accordance with procedures different from the 
special agreements contemplated in Article 43; that plans for the use of such 
armed forces need not be drawn up with the assistance of the Military Staff 
Committee, as provided in Article 46; and that the strategic direction of 
armed forces made available for enforcement action need not necessarily be 
the responsibility of the . . . Committee, as set forth in Article 47. 

2. The . . . Assembly can recommend, when there is lack of unanimity among the 
Permanent Members . . ., and when there has arisen in the Assembly's opinion 
a threat to the peace, breach of the peace, or act of aggression, the adoption of 
enforcement measures, including . . . armed force in the event of an armed at- 
tack or an act of aggression, on behalf of the United Nations and directed 
against states or de facto governments, also without observing the procedures 
and requirements of Chapter VII for . . . armed force. 

3. Both the . . . Council and the . . . Assembly may decide, without a previous de- 
termination that a threat to or breach of the peace or an act of aggression ex- 
ists, to create a United Nations military force to carry out nonenforcement 
functions, without complying with . . . Chapter VII for the use of armed force; 
and they may recommend — but may not legally require — that members con- 
tribute contingents to establish it. The functions of a United Nations Force 
may range from mere observation and supervision to the undertaking of typi- 
cally military operations, such as engaging in battle with armed groups for . . . 
destroying them as combat units, as occurred in the Congo. 



World Public Order 177 



Up to the present [1969] there has not been a single instance in the practice of the 
United Nations that could serve as a legal basis for a new rule authorizing the... 
Assembly to recommend the use of armed force, without the legal support of the 
Uniting for Peace Resolution, even for nonenforcement purposes. 



The legal effect of the new rule, per se, is the broadening of the competence of both the 
Council and the Assembly to act in a manner different from that originally 
contemplated in the Charter. The degree to which this competence was enlarged is 
indicated by the three principles suggested above. It is possible to speak of a legal 
effect because there has been a modification of a pre-existent legal situation, 
although, from a different point of view, the change in the competence of the organs 
constitutes not the effect but the very content of the new rule created by the practice 
of the Organization. 

The second effect is of a diverse nature. Actually, it is a question here of a legal 
effect directly produced by the resolutions adopted by the . . . Council or . . . Assembly 
on the basis of the customary rule created by their practice, rather than a direct effect 
of that rule as such. This effect consists in the temporary suspension of the Charter 
obligation of members to refrain from the use of force against any state, in conformity 
with Article 2(4). That certain Council or Assembly recommendations concerning 
the use of force should have as an effect the suspension of the Charter obligation not 
to use it, is a consequence of the new rule created by the practice of the organs. ^ 

While this statement is useful, it is submitted that Castenada errs in two respects. 
First, it remains clear after the 1990-91 Gulf War that the Council may also "de- 
cide" on the use of force and authorize its agent — the Coalition in the Gulf 

773 

War — to proceed. Moreover, it is highly questionable whether the Assembly 
may "decide" — in the sense of the Charter, Articles 25 and 48 — on anything, such 
that States would be compelled to obey its commands. If the Castanada view is 
accepted, that States' acquiescence is enough to create a customary norm, that may 

775 

be true. However, that is not what the Charter says, and any international agree- 
ments that conflict with the Charter are trumped by the latter. Treaties, of 
course, have been a regular feature of peacekeeping operations, whether under 

777 

UFP authority or the Council. 

Moreover, most commentators and courts have said recommendatory resolu- 
tions can only restate or evidence customary law. Even Castenada has this view for 

778 

declaratory resolutions. The Assembly has promoted many LOAC-related 
norms through the years; some state rules of law, some do not (at least according to 

779 

some countries), and some are purely aspirational. 

b. Concurrent Action with the Council. In several cases the Assembly and the 

7X0 

Council have issued resolutions during crises or conflicts. Where a Council de- 

• • 781 
cision adopts a norm stated in an Assembly or Council recommendation, it be- 
comes a binding rule of law. Where a nonbinding Council resolution adopts such a 
norm, it is further evidence of customary law, unless, of course, the original 



178 The Tanker War 



resolution declared custom, in which case the Council resolution also restates a 

782 
customary rule. 

c. Appraisal for the Tanker War. The Council was seized of the Iran-Iraq war from 

702 

the beginning; therefore, the Assembly had no jurisdiction over the conflict. 
However, countries involved in a Council-seized conflict may try to bring matters 

784 

before the Assembly, which should reject consideration of them. 

The Assembly did promote projects whose subject is applicable to the Tanker 
War, notably the Third UN Conference on the Law of the Sea (UNCLOS III) 

785 

which created the LOS Convention. The same procedure was followed for the 
Conventional Weapons Convention and its Protocols, a product of ICRC confer- 
ences. The Council, by citing and incorporating by reference freedom of naviga- 
tion, the law of armed conflict, and occasionally specific treaties, e.g., the 1925 

787 

Geneva Gas Protocol or the 1 949 Geneva Conventions, thereby gave further evi- 
dence of these agreements or customary law as norms. Since no binding Article 25 
or 48 decisions incorporated them, these bodies of law did not become mandatory 
norms, but Council citation increased the strength of their applicability. Although 
the issue is not free from doubt, Resolution 598 may have clarified the debate as to 
the status of Article 40-based resolutions calling for action, which may be binding 

788 

if the views of the US Secretary of State and other foreign ministers are correct. 

3. The Constitutive Process of Decisionmaking in the Charter Era. 

Sub-Parts B.l and B.2 of this Chapter have sketched development of norms of 
conduct by the Council and the Assembly. This Sub-Part examines the methodol- 
ogy of implementation of these norms by the Organization and by regional organi- 
zations, also contemplated by the Charter. 

a. Implementation: Original Intent and Trends. The Charter contemplates that 
UN Members will agree to make armed forces, assistance and facilities, including 
rights of passage, available to the Council so that it can maintain international 

789 • • 790 /-> 

peace and security. These agreements have not materialized. The Charter 
also provides for a Military Staff Committee (MSC) to plan for applying armed 
force when the Council directs. The MSC consists of permanent Council mem- 
bers' chiefs of staff and would have strategic direction of forces at Council dis- 

791 

posal. Owing to the Cold War and other factors such as the lack of Article 43 

792 

agreements, the MSC atrophied. 

793 
Alternatives to the Charter system have been suggested or implemented. 

One was the "agency" principle, by which the Council has requested a State or a 
group of States to take leadership and command of an operaton on the Council's 
behalf. The United States had this role in Korea, the United Kingdom for Rhode- 
sia, and a Coalition in the 1990-91 Gulf War. UFP-based operations have used a 



World Public Order 179 

795 

Collective Measures Committee for data reporting and dissemination. Some 
peacekeeping operations have been given to the Secretary-General for leader- 

796 

ship. In interdiction/embargo operations for Rhodesia, South Africa, and Iraq 

in the 1990-91 Gulf War, the Council appointed a Committee to review these pro- 

797 
cesses. 

No peacekeeping forces were active in the Gulf area during the 1980-88 war; 
UNIIMOG served after the ceasefire and until the 1990-91 Gulf War. 798 The Sec- 
retary-General reported on the conflict, at Council direction, but did not administer 

799 r 

forces. Neither the Council nor the Assembly authorized forces' intervention 
similar to the situation in Korea, Rhodesia or Kuwait. The Iran-Iraq conflict and 
its Tanker War component were governed by traditional inter-State relations and 
the law of self-defense. 

b. Regional Arrangements Under the Charter. Article 52 permits regional arrange- 
ments or agencies to deal with matters relating to maintaining international peace 
and security "appropriate for regional action." Members of these arrangements or 
agencies should "make every effort to achieve pacific settlement of local disputes" 
through these institutions before referring claims to the Council. The Council 
must encourage developing pacific settlement of regional disputes through these 
institutions, whether a matter is referred to the Council or a regional institution 
first. The Council can use these arrangements or agencies for enforcement un- 

801 

der Council authority. It must be kept informed of action taken "or in contem- 
plation" by regional institutions, as distinguished from post-attack reporting 

802 

required in self-defense situations. 

What constitutes an Article 52 regional arrangement or agency has not been re- 
solved; the Arab League, the OAS and the Organization of African Unity 

80S 8ft6 

(OAU) qualify. Not all regional organizations are Article 52 dispute resolu- 
tion agencies; those whose function is self-defense get authority from Article 51 's 

807 

inherent right of collective self-defense provision. There has been use of Article 
52 as an alternative to Council or Assembly dispute resolution. For example, the 
United States referred the Cuban Missile Crisis issue to the OAS, obtained a reso- 
lution denouncing introduction of the missiles, and proceeded with quarantine. 

808 

As Article 54 requires, the Council was notified. A regional organization resolu- 

809 

tion was also used in the Grenada crisis. 

810 

Four organizations, one with Article 52 status (the Arab League), the GCC, 

811 812 813 

which may have that status, theWEU, and the ICO, which may also have 
that status, were involved in the Tanker War. Although hampered from time to 
time by internal dissension, the Arab League Summits' resolutions condemned 
freedom of navigation violations and urged resolution of the conflict by the 
parties. The Arab League governor-general appeared before the Council in con- 
nection with debate on Council Resolution 552, brought by the GCC States, 



180 The Tanker War 

814 

complaining of attacks on freedom of navigation to and from their ports. The 
GCC played an active role in the war, evolving from an internal security organiza- 

815 

tion to promoting joint action for mutual security. The WEU, concerned with 

81 ft 

European security, was cover for several States' Gulf maritime operations. The 

817 

ICO attempted to serve as a mediator, particularly through GCC support. 

Other regional organizations that could be said to have dispute resolution capa- 

818 

bility today, e.g., the European Community, passed resolutions but were not in- 

819 

volved because the Tanker War occurred outside their geographic competence. 
Other governmental organizations not enjoying Article 52 status, e.g. the Group of 

820 

Seven, also passed resolutions in connection with the war. None of these made 
law for the conflict, but their "soft law" status further evidences the strength of 
claims they advanced, e.g., freedom of navigation in the Gulf. 

c. The Work of Nongovernmental Organizations and the Tanker War. The princi- 
pal nongovernmental organization contributing to the law of the Tanker War was 
the International Committee of the Red Cross (ICRC), a Swiss corporation that 
sponsored conferences leading to 1977 Protocols I and II to the 1949 Geneva Con- 

821 

ventions. The ICRC also sponsored conferences leading to adoption of the Con- 

822 

ventional Weapons Convention and its protocols in 1980. The Security Council 
cited to the law of armed conflict generally and to the Geneva Conventions specifi- 

oil 874. 

cally, the work of the ICRC was cited in a Council resolution. ' Early in the war 
Iran accepted and Iraq rejected a proposal to move, under the Red Cross or UN 

875 

flag, 70 ships caught in the Shatt by opening hostilities. The standards of 
ICRC-sponsored treaties had impacted norms applicable to the war, regardless of 
citation by the Council. 

The International Transport Workers Federation (ITF), International Cham- 
ber of Shipping (ICS) and the International Shipping Federation (ISF) expressed 
concerns over attacks on merchant shipping, and these were transmitted to 

827 

belligerents by the UN Secretary-General. 

Part C. Maritime Neutrality in the Charter Era 828 



"There is nothing new about revising neutrality; it has undergone an almost 
istant pi 
lieved that 



829 

constant process of revision in detail," Jessup concluded in 1936. He also be 



. . . nothing could be more fallacious than the attempt to test the application of 
rules of neutrality by the principles of logic. Since they are products of compromise 
and of experience, logic has found practically no place in their development and 
cannot properly be used in their application. 830 

Over half a century into the Charter era, little would change these observations. 

Oil 

New considerations have appeared, including the Charter itself; the process of 



World Public Order 181 



analyzing the law of neutrality defies a straightforward, positivist, black-letter ap- 
proach. Indeed, principles of neutrality for maritime warfare have been seen to be 

832 

less rigid, from an historical perspective, than those for air or land warfare. 

833 

Some assert that neutrality is in "chronic obsolescence." A major reason, ac- 
cording to those who say that future applications of the law of neutrality will be 
minimal, is the argument that the Charter has ended the rights and duties of the 

834 

old law of neutrality. Another argument is that since the Charter has outlawed 
war, therefore there can be no state of war, and therefore there is no need for a 
law of neutrality. (The latter position might be considered in light of the Pact of 

837 

Paris (1928), which outlawed aggressive war. World War II began a decade 
later.) 

Many others, reflecting State practice and claims in the Charter era, have 
maintained that the law of neutrality continues to exist. The San Remo Manual rec- 

838 

ognizes maritime neutrality. The 1992-96 International Law Association Con- 
ferences received reports from its Committee on Maritime Neutrality, and the 

839 

1998 ILA conference accepted the Committee's final report. Individual re- 
searchers assert that neutrality remains a valid legal concept, albeit modified by 
the impact of the Charter and other considerations. 

Like the reports of Mark Twain's passing, accounts of the demise of neutrality 
in the Charter era have been greatly exaggerated, as the ensuing analysis 
demonstrates. 

The law of neutrality before World War II and the Charter era has been traced in 

841 

detail by Jessup, his associates and others, more analysis is needlessly repetitive. 
However, two groups' research during 1919-39 is worthy of note, particularly for 
their collection and summary of State practice. They had considerable impact on 
State practice as the war widened but before it became global in 1941 with entry of 
the United States and other American countries into the war. 

1. Neutrality, 1928-41, and in the Charter Era; "Non-Belligerency" 

In 1928 the Pact of Paris was concluded. Subject to later agreements such as the 

842 

Charter, the Pact remains in force today. The understanding concerning the in- 
herent right of of self-defense under the Pact applies in the Charter era and can be 
claimed today, subject to principles of necessity, proportionality, and for anticipa- 

843 

tory self-defense, a situation admitting of no other alternative. Neutrality prin- 
ciples also carried forward into the Charter era, subject to modification by Charter 
law and the usual processes of change in the law Jessup saw in 1936. 

The Pact did not address the neutrality issue, although other agreements 

845 

contemporaneous with it stated the term without defining it, except for the Ha- 
vana Convention on Maritime Neutrality, with eight American countries party, 
including the United States, and the five-State 1938 Nordic Rules of Neutral- 

847 848 

ity, not a formal treaty but published in the LNTS series. 



182 The Tanker War 



The ILA 1934 meeting approved the Budapest Articles of Interpretation of the Pact 
of Paris. They provide in part: 

(1) A signatory State cannot, by denunciation or non-observance of the Pact, re- 
lease itself from its obligations thereunder. 

(2) A signatory State which threatens to resort to armed force for the solution of 
an international dispute or conflict is guilty of a violation of the Pact. 

(3) A signatory State which aids a violating State thereby itself violates the Pact. 

(4) In the event of a violation of the Pact by a resort to armed force or war by one 
signatory State against another, the other States may, without thereby commit- 
ting a breach of the Pact or of any rule of International Law, do all or any of the 
following things: — 

(a) Refuse to admit the exercise by the State violating the Pact of belligerent 
rights, such as visit and search, blockade, etc.; 

(b) Decline to observe towards the State violating the Pact the duties pre- 
scribed by International Law, apart from the Pact, for a neutral in rela- 
tion to a belligerent; 

(c) Supply the State attacked with financial or material assistance, including 
munitions of war; 

(d) Assist with armed forces the State attacked. 

(5) The signatory States are not entitled to recognise as acquired de jure any terri- 
torial or other advantages acquired de facto by means of a violation of the Pact. 

(6) A violating State is liable to pay compensation for all damage caused by a vio- 
lation of the Pact to any signatory State or to its nationals. 

(7) The Pact does not affect such humanitarian obligations as are contained in 
general treaties.... 849 

850 851 

Although some States and commentators said when the Articles were ap- 
proved that no State had adopted them as policy, in 1941 the US Congress heard 
former Secretary of State Stimson's testimony on the pending Lend-Lease Bill; he 

852 

interpreted the Articles as an authoritative statement of the law. He echoed 
views of Secretary of State Cordell Hull and Attorney General Robert H. Jackson 
on the point, that since Axis nations had breached the Pact of Paris, the United 

853 

States could resort to self-defense. Besides self-defense, under the Budapest Arti- 
cles States could adopt a status of nonbelligerency, i.e., decline to observe neutrality 
toward a Pact violator. States could supply a State that was a target of a Pact violator 

854 

with "financial or material assistance, including munitions of war." (Put 
differently, Pact parties could engage in reprisals involving force or other modali- 
ties or retorsions. In the Charter era, reprisals involving use of force by States not 
party to a conflict are inadmissible. In the pre-Charter era assisting victims of 
aggression or armed attacks was styled as nonbelligerency, an intermediate step 
between neutrality and belligerency.) 

The Lend-Lease Bill was enacted. Congress, by enacting Lend-Lease in this 

857 

context, can be said to have stated US practice at that time, and the Budapest Ar- 
ticles as part of that practice. It is submitted that when the Allies and other neutrals 



World Public Order 183 



accepted Lend-Lease through bilateral agreements, they ratified and accepted this 

oco 859 

practice. The 1940 UK-US destroyers-for-bases agreements were also exam- 

Qf.r) 

pies of the United States' assuming nonbelligerent status. These, however, were 
only bilateral arrangements, although the US general pro-Allied stance was then 
apparent. 

The United States was not the only country to assume a nonbelligerency pos- 
ture during 1939-45. For example, Norway's November 1939 charter arrangement 
for 1 .5 million tons of tankers with Britain favored the United Kingdom against 
the Axis. Others officially or unofficially adopted policies tending to favor one side 
or the other, sometimes before becoming belligerents (e.g., Italy, which supported 
Germany, or American States participating in US Lend-Lease agreements before 
declaring war) and in other cases staying out of the war but keeping nonbellig- 
erent status (e.g., Spain). This World War II practice tends to add support for 
recognizing nonbelligerency as an intermediate position, under international law, 
between neutrality and belligerency. 

The ILA was not the only group of scholars in the interwar years with a view 
that there could be gradations or stages between belligerency and neutrality. The 
1939 draft Harvard Aggression Convention differentiated among aggressors; de- 
fending and co-defending States, entitled to all rights of self-defense; and "sup- 
porting States," entitled to discriminate against an aggressor by other than armed 
force. A supporting State was entitled to "rights which, if it were neutral, it would 
have against a belligerent." An aggressor retained its duties to those entitled to 
neutrality status. Other States would have had these rights under Articles 12 and 
13: 

A State which is not an aggressor, a defending State, a co-defending State, or a 
supporting State, does not, in its relations with the aggressor, have the duties which, 
if it were neutral, it would have to a belligerent, but, against the aggressor, it has the 
rights which, if it were a neutral, it would have against a belligerent. 



Subject to . . . Article 7 and 8, a State which is not an aggressor, a defending State, a 
co-defending State, or a supporting State, has, in its relations with a defending State, a 
co-defending State or a supporting State, the duties which, if it were neutral, it would 
have to a belligerent; and has against those States the rights which, if it were a neutral, 
it would have against a belligerent. 86 ^ 

The Comment to the "supporting State" definition elaborates on the term in the 
Draft Convention: 

. . . "[Supporting State" is used in a special way. A "supporting State" might give 
to a defending State even greater assistance than was given by a "co-defending State" 
but it would do so without use of armed force. 

The action taken by a supporting State to assist a defending State would take the 
form of some kind of discrimination against the aggressor or in favor of the defending 



184 The Tanker War 



State. The State may take such action and assume such status for a variety of reasons 
but presumably its reasons will include a desire to deter, restrain or even perhaps to 
punish an aggressor. The discriminatory action may take the form of economic or 
financial embargoes directed against the aggressor. It might be restricted to a 
withdrawal of diplomatic and consular representatives from that State or to 
participation in the determination that the State violated its obligation not to resort 
to force. It might not take the form of any measures directly against an aggressor but 
might rather be in the form of aid — financial, economic or otherwise — to the 
defending State. 

Recitations of State and League of Nations practice demonstrates that there was 
support among States, great and small, for the form of nonbelligerency not involv- 
ing direct use of force. In effect, the Draft Convention's definition of supporting 
State comes close to the armed neutralities of the Seventeenth and Eighteenth 
Centuries and the Napoleonic Wars when neutrals cooperated to get cargoes 

9.f\l 

through. This was also almost precisely the circumstance of the United States in 
the destroyers-bases deal, its convoy operations in the North Atlantic before en- 

869 870 

try into World War II, and Lend-Lease. It was the US posture during the 

871 

Tanker War when it convoyed neutral merchantmen to and from Kuwait. The 
same was true for States other than belligerents that accompanied or escorted mer- 
chantmen flying flags of States other than the belligerents, regardless of who was 

872 

the aggressor during the Tanker War. At least one commentator has stated that 
the Budapest Articles principle of aid against an aggressor, or its correlative of sup- 

873 

porting State action under the Draft Convention, applies in the Charter era. 

Most recent commentators say there is no intermediate position between bel- 
ligerency and neutrality, i.e., there is no legal foundation, or perhaps need, for 
nonbelligerency. Unlike the Harvard Draft Convention view, nonbelligerents can 

874 

claim no rights from that status. However, the problem may lie more in defining 
neutrality, according to Tucker. If neutrality is defined as non-participation in 
hostilities, i.e., as a belligerent or nonbelligerent, a non-participant neutral incurs 
belligerent responses only when, and to the extent, favoritism is shown. Belliger- 

875 

ents can respond by non-force reprisals or retorsions. If it is assumed that the 
United States and others connected with Gulf commerce in the Tanker War fa- 
vored one belligerent over the other, (e.g., Iraq over Iran), Iran could impose pro- 
portional non-force reprisals after due notice and opportunity for correction 
necessary in the situation. Iraq could do the same, and either could employ 
retorsions too. Iran could not, even under this theory of neutrality, move 
straightway, without notice, to forcible response, e.g., attacks on and destruction of 

877 

neutral shipping. 

Besides the US position before entry into World War II and its stance during the 
Iran-Iraq war, nearly every conflict of reasonable duration during the Charter era 
has involved situations of nonbelligerency in maritime warfare. This was true for 

878 

the Korean War, with its UN law overtones. It was also true for the Arab-Israeli 



World Public Order 185 



879 • 880 

conflicts. The India-Pakistan conflicts were less clear on the point. The 
United States materially assisted the United Kingdom in the Falklands/Malvinas 
war, supplying fuel and intelligence; the United States and other countries, 

881 

through economic sanctions, also indirectly assisted the United Kingdom. 
Moreover, if the view is taken that negative preferences for one belligerent over an- 
other, e.g., cutting off arms supplies to one side as opposed to aiding one belligerent 
while embargoing the other, amounts to nonbelligerency, during the Tanker War 
many States had nonbelligerent status: France, most of the Arab States, and the 
USSR. The United Kingdom, with its 1987 export credit agreement with Iraq de- 
spite its asserting even-handed strict neutrality, might be said to fall into this cate- 

882 
gory. 

Regardless of the commentators' position, the record of armed conflicts since 

World War II has been that if the confrontation is of any length, States may declare 

and practice strict neutrality, declare neutrality and act as nonbelligerents, or do 

883 

nothing, perhaps ignoring (or being unaware of) the situation. The law of neu- 
trality has been applied in the Charter era, perhaps not consistently, and claims for 
a right to act as a nonbelligerent, i.e., favoring one or more belligerents at the ex- 
pense of others, persist. 

Is nonbelligerency a violation of the law of neutrality, or a status without legal 
standing between the traditional roles of neutrality and belligerency? The re- 
sponse today lies not in the traditional analyses, stretching back centuries, but in 
the developing norms under the Charter. The old principles of neutrality have 

884 

been modified by the advent of the Charter. The same is true for nonbellig- 
erency, where an overlay of Charter law helps define these situations and can give 
them legitimacy, not as an exception to traditional rules of neutrality, whether 

885 

stated in treaties or custom, but as application and interpretation of the Charter. 

Responses to aggressors can include proportional reprisals not involving use of 
force and retorsions, and States that are not belligerents whose interests have been 

oo/r 

damaged by belligerent action can invoke these, along with state of necessity. 
These alternatives remain as options in the Charter era, and taking such actions 
could demonstrate favoritism for one belligerent because of actions taken against 
the other. In effect, the actor State would have the appearance of being a nonbellig- 
erent by so acting. 

Examples from recent conflicts illustrate the point. During the Falklands/ 
Malvinas War, States in Europe attempted to isolate Argentina economically, 
most likely in violation of international obligations. These reprisal actions were 
justified against the aggressor in that war. If actions of the United States and other 
countries supplying economic assistance, intelligence and other information to 

887 

the United Kingdom would be deemed unlawful, those actions were also appro- 
priate nonforce reprisals under Rio Pact mutual security for Argentina's violation 
of territorial integrity. Governments' actions to convoy, escort or offer protection 



186 The Tanker War 



to neutral ships not carrying warfighting/war-sustaining goods to belligerent ports 

888 

during the Tanker War were retorsionary in nature. These were unfriendly acts 
directed toward a belligerent thought to have violated international law. 

In essence, the principles of law applicable to the intermediate status between 
belligerency and neutrality need not necessarily depend on development of a cus- 
tomary practice recognized as law however the trend may seem to have been since 
1939 and continuing into the Charter era, or upon resolution of the debate among 
the commentators. The Charter-governed norms apply to fill the void to permit 
non-force reprisals and retorsions by neutrals that might have evoked claims of 
nonbelligerency before 1945, neutrals that retain an inherent right of self-defense. 
Moreover, principles of treaty-based informal self-defense arrangements, which 
also continue in the Charter era, permit responses by States not party to a conflict 
involving use of force, provided other criteria, e.g., necessity and proportionality, 

889 

are met. One problem with informal self-defense arrangements, like the prob- 
lem of aid to a country which is a target of aggression, is the stance the purported 
aggressor may take. If the purported aggressor says, rightly or wrongly, that the 
target is the aggressor, then the aiding State may subject itself to claims, and worse, 
of aiding the aggressor. Another problem with relatively clandestine material aid, 
or with informal self-defense, is notice. Although security treaties sometimes are 
not published, many are, and all can see who is aligned with whom. This is not the 
case with clandestine aid to a target or informal collective self-defense agreements. 
These kinds of transactions carry with them the same kinds of risks of misinter- 
pretation and accusations when States act pursuant to them without notifying 
other States of the reasons for their actions. States so acting must take these factors 
into account when assisting target States pursuant to these modalities. 

2. The Law of Neutrality in the Context of UN Action Under the Charter 

Sub-Part C.l has demonstrated that neutrality, primarily as practiced in the 
Nineteenth Century, has been modified in the Charter era, although the general 
concept of neutrality remains. The further question is the impact that UN actions, 
particularly by the Security Council, may have on this corpus of law. As recited ear- 
lier, decisionmaking options under the Charter, and practice under the Charter, 
demonstrate that there has been and will be ample room for claims of neutrality or 
nonbelligerency. 

First, although the Council may make legally-binding decisions under Articles 
25 and 48 of the Charter, and therefore may obligate UN Members under Articles 
41-42 to take action that might be inconsistent with traditional neutrality princi- 
ples, the Council also may make nonbinding "call[s] upon" Members under Arti- 
cles 40-41. It also may make nonbinding recommendations under Articles 39-40. 
These recommendations have no more force of law, unless they restate custom, 



World Public Order 187 



general principles or treaty-based norms, than General Assembly recommenda- 

890 

tions under Articles 10-11, 13 and 14. 

Thus, Council decisions may compel a State to behave inconsistently with tra- 
ditional neutrality practice, either in requiring what would otherwise be belliger- 

OQ1 

ent acts or in restricting rights traditionally enjoyed by neutrals. Article 50, 
invoked by the Council for States affected by the Council-directed embargo of Iraq 

892 

during the 1990-91 Gulf War, allows it to consult with States finding themselves 
with "special economic problems" arising from carrying out Council-decided pre- 
ventive or security measures. Thus even if Jordan and like-status States would 
have lost some or all of their rights and duties as neutrals through initial Council 
decisionmaking in that war, an Article 50 reprieve could have restored some or all 
of these rights and duties. Council action under Article 50 could result in greater 
rights, or lesser duties, than under the traditional law of neutrality. 

Second, Council decisions when first taken may include exemptions that 
would, in effect, allow reversion to traditional neutrality law. For example, sea and 
air embargoes against Iraq in the 1990-91 war and against the former Yugoslavia 
beginning in 1991 had exemptions for medical supplies, humanitarian supplies, 
and foodstuffs notified to the Council's Sanctions Committee, which includes rep- 

893 

resentatives from all Council members. To that extent, and except when other- 
wise controlled by other effects of Council decisions — e.g., the Committee — the 
traditional law of neutrality would apply to such shipments. This exception has 
been most apparent when the Council has decided to embargo only a single com- 

894 

modity — e.g., petroleum, weapons or military equipment — followed by recom- 
mendations on, calls for, or decisions on, enforcement. In that situation the law of 
the resolution would apply to selected commodities, while neutrality rules would 
be in force as to other goods if armed conflict is involved. Thus far that situation 
has not arisen. The classic case was Rhodesia ( 1 965) which did not involve interna- 
tional armed conflict, and only selective enforcement as to one commodity, petro- 

895 
leum. y As to commodities not stated in a selective Council decision, neutrality 

principles would apply. If Article 42 measures approve use of force for some cir- 
cumstances but not for others, and use of force is appropriate in those other cir- 

896 

cumstances, the law of neutrality will apply in those circumstances. y For 
example, if the Council decides on an air-land campaign against an aggressor, with 
no decision on maritime aspects of the crisis, the maritime law of neutrality applies 
to maritime aspects of the situation to the extent that the Council decision's impact 
does not overlap into maritime issues. An example might be air flights over the 
seas. If an air-land related resolution is in force, it would apply to ocean overflights 
to and from the affected State, except as to purely maritime-oriented flights, e.g., 
helicopter resupply from ship to ship. 

The third point is the relative infrequency of application of mandatory Council 
decisions. Of the hundreds of crises since 1945 that have involved a potential for 



188 The Tanker War 



armed conflict or actual conflict and which could be said to risk a "threat to the 

897 

peace, breach of the peace, or act of aggression," mandatory Council decisions 

898 

have governed only a handful. ' In terms of the potential for or actual warfare at 
sea, six crises have produced Council decisions: Rhodesia (1965), the Gulf War 
(1990-91), the disintegration of Yugoslavia (1991), Angola (1992), Liberia (1992) 

899 

and Haiti (1993). ' Even the Korean War evoked only Council calls or recom- 
mendations for action before the USSR vetoes, and thereafter General Assembly 

recommendations under the UFP Resolution. To be sure, some calls for action 

901 
and recommendations were well-supported, but they did not carry the force of 

decisional law. When the Council approves other than decisions, resulting resolu- 
tions, although confessedly highly persuasive and authoritatively stated from po- 
litical and policy perspectives, are nonetheless recommendatory as a matter of law. 
In the latter case — the overwhelming bulk of resolutions the Council has voted to 
date — there has been and will be full opportunity for the law of neutrality to oper- 
ate. Widespread compliance with calls for action or recommendations could even- 
tually mature into custom, but it is doubtful whether State practice under them 

902 
would be of sufficient duration, assuming States accept the action as law. (Sanc- 
tions practice against Iraq and the former Yugoslavia may be candidates for con- 
gealment into custom, however.) In any event, neutrality principles would exist 

903 

between the precipitating event, e.g., breach of the peace, and Council action. 

Even if the Council decides on action, the enforcement mechanism has not been 
the Military Staff Committee and special forces the Charter contemplates. 
Rather, it has often used an agency principle, choosing a State or group of States to 
respond to the crisis, with one nation perhaps chosen for a leadership role — the 
United States for Korea, the United Kingdom for Rhodesia, and a coalition for the 

905 

1990-91 Gulf War. In these situations agent State(s) might be involved in en- 
forcing the law of neutrality, even though there are overarching Council resolu- 
tions. Such was the case for Korea, where the US-declared blockade involved 
observing neutral vessel rights to visit nearby USSRports and a right of USSR war- 
ships to proceed to North Korean ports. In recently-ordered embargo opera- 

907 

tions, the Council has not designated a leader, resulting in confusion. 

The Security Council's Tanker War resolutions fell into the first and third cate- 
gories of exceptions, i.e., no State including the belligerents was obligated to obey a 
Council resolution, except through calls for action, demands, or recommenda- 
tions. Thus the principles of neutrality had full potential play for that war. Other 
conflicts, particularly the ongoing situation that began with the Gulf War of 
1990-91 and disintegration of the former Yugoslavia, demonstrate that gaps in 
Council decisions, or its methodology of taking action, leave copious opportuni- 
ties for applying neutrality principles. These principles may well not be the same 
as those before the Charter era, since actions in individual and collective self- 
defense must be factored in, but neutrality as a concept continues to exist. 



World Public Order 189 



Moreover, the Council appears to have approved sub silentio the concepts of neu- 
trality and perhaps nonbelligerency as well. International agreements concluded 
since 1945, including the 1949 Geneva Conventions, the most widely accepted 

908 

multilateral treaties of any, have continued to use the terms "neutral" and, more 

909 

rarely, "nonbelligerent." These conventions were cited by the Council during 
the Tanker War, and again during the 1990-91 Gulf War. The Council referred 

91 1 

to "states not party to the hostilities" in Tanker War Resolution 552. Further- 
more, there is nothing in practice under the Charter to indicate that earlier con- 

912 

ventions dealing with neutrality are invalid under the Charter. To the extent 

913 

that earlier treaties have crystallized into custom, they exist in that mode as a 

914 
valid source of law. 

3. Appraisal of Neutrality in the Charter Era 

Undeniably neutrality as a general concept has as much vitality today as in the 
pre-Charter era. The claim, that there is a customary right to assert an intermediate 
status of nonbelligerency between traditional neutrality and belligerency, may 
have been strengthened since 1945. The precedents in some cases are almost iden- 
tical with those in the last two centuries. Even if nonbelligerency cannnot be as- 
serted as a customary norm, the overlay of principles of retorsion, reprisals not 
involving use of force, and state of necessity, apply to support actions at variance 
with a practice of strict neutrality in the traditional sense. Because of options un- 
der the Charter for nonbinding resolutions by the Security Council and perforce 
the General Assembly, the potential for exceptions even with a binding Council 
decision, and the relative scarcity of Article 25/48 Council decisions, the opportu- 
nity for claims of neutrality — perhaps modified by the new nonbelligerency of the 
Charter era — remains large. "Far from being moribund, these traditional rights 
[of neutrality and self-defense] apply logically in conditions of limited wars" — the 
type of conflicts that have beset the planet since 1945 — "even more rigorously than 

915 

in conditions of total war." 

Part D. Sources of the Law, Principles of the Law of Treaties and 

Treaty Succession 

This Chapter has integrated Charter interpretation principles, notably the su- 
premacy of the Charter over treaties, the problem of custom or general princi- 

91 7 

pies of law contrary to the Charter, and the possibility that parts of the Charter 

918 

may restate jus cogens norms, however that concept may be defined. This Part 
examines principles of the law of treaties and treaty succession, with a closer re- 
view of the effect of war on treaties generally, and the relationship between the 
LOS Convention and the law of armed conflict. 



190 The Tanker War 



/. Principles of the Law of Treaties and Treaty Succession 

919 • 920 

Principles of treaty interpretation, treaty succession, and acquiescence in 

921 

or objection to custom have been noted. The possibility of coercion, e.g., threat 
or use of force contrary to Article 2(4) of the Charter, to which might be added vari- 

922 • 923 

ous forms of error or corruption, has been cited. (If a treaty is negotiated in 
connection with a State's aggression in violation of the Charter, i.e., an armistice or 

924 

surrender by the aggressor, coercion principles do not apply. Economic coer- 
cion, e.g. sanctions imposed as nonforce reprisal or retorsion, does not invalidate a 

925 

treaty either. If the Security Council decides on sanctions, or calls for them, 

926 

Charter law also trumps a target State's economic coercion claims.) 

Other assertions of the inapplicability of treaties can arise because of claims of 

927 • • 928 

material breach, impossibility of performance, or fundamental change of cir- 

929 930 r • 931 

cumstances. Desuetude and state of necessity may vitiate a treaty. In the 

view of some, unequal treaties can also negate a treaty's effectiveness. 

A treaty may be subject to severability. Part of it may remain in force, part may 

be suspended, part may be terminated, all may be suspended, or all may be termi- 

933 

nated, depending on the nature of the treaty's terms. 

Against these must be balanced the principle of pacta sunt servanda — treaties 

934 

should be observed. Moreover, even though a treaty may not be in force, per- 
haps because a State is not a party to it, it may restate a customary rule or a general 

935 

principle of law. These analyses must be considered in addition to the factoral 

936 

approach for sources of law. Whether these doctrines, e.g., fundamental change 
of circumstances, apply to a given situation, is determined in the United States by 

937 i r 

the executive and not the courts. In general, a military commander should refer 
these matters to an operational law specialist, who can check with higher author- 
ity; however, commanders should be aware of these doctrines' implications. 

2. War and Termination or Suspension of Treaty Obligations 

The Vienna Convention on the Law of Treaties takes no position on the effect of 

938 939 

war on treaties; the issue is left to customary rules. " War might possibly raise a 

claim of fundamental change of circumstances, or perhaps other bases, e.g., im- 
possibility of performance. 

Treaties establishing an international organization, such as the United Na- 

941 

tions, are not affected by conflicts of the parties. States may suspend a treaty's 
operation when they exercise the inherent right of individual or collective self-de- 

942 

fense in accordance with the Charter. If complying with a Council resolution 
dealing with action on threats to the peace, breaches of the peace or acts of aggres- 
sion conflicts with a treaty or a treaty requirement, States may suspend or end the 
treaty's operation to the extent treaty performance is incompatible with the resolu- 

943 

tion. The Institut de Droit International has stated that an aggressor shall not 
terminate or suspend operation of a treaty if it would benefit thereby. 



World Public Order 191 



There is no general rule as to when or which treaties continue in operation dur- 
ing armed conflict. A treaty may be subject to severability in this context, i.e., all 
of it may remain in force, part may be suspended, part may be terminated, all may 
be suspended, or all may be terminated. Treaties may provide for continued op- 

947 

eration during war; the Chicago Convention explicitly says so. Because of their 
nature or purpose, some treaties are regarded as operative during armed conflict, 

• i • • 948 

those governing humanitarian law or neutrality being prime examples. In other 
cases, e.g., the Treaty of Rome or NAFTA, a treaty may be suspended during armed 

949 

conflict or when a State's vital national interests are at stake. A treaty may de- 

950 

clare it does not apply during war. As noted above, these principles may well be 

951 
subject to the Charter's clause paramountcy. 

3. The LOS Conventions and the Law of Armed Conflict: 
"Other Rules " Clauses 952 

953 

The 1958 and 1982 LOS Conventions include clauses, sometimes over- 
looked in analysis or commentary, stating the rights under these treaties are sub- 

954 

ject to "other rules of international law" as well as terms in the particular 
convention. For example, LOS Convention, Article 87(1), which declares high 
seas freedoms, adds that "Freedom of the high seas is exercised under the condi- 
tions laid down by this Convention and by other rules of international law." The 
overwhelming majority of commentators — including the International Law Com- 
mission, a UN General Assembly agency of international law experts — has 
stated that the Conventions' other rules clauses refer to the law of armed con- 

956 

flict, a component of which is the law of naval warfare. Provisions such as Arti- 
cle 88 of the 1982 Convention state a truism, i.e., the high seas are reserved for 

957 

peaceful purposes. However, high seas usage can be subject to the LOAC, when 
Article 87(l)'s other rules clause is read with Article 88. As in the case of the 1958 
Conventions, 

That provision does not preclude . . . use of the high seas by naval forces. Their use 
for aggressive purposes, which would . . . violat[e] . . . Article 2(4) of the Charter . . . , is 
forbidden as well by Article 88 [of the 1982 Convention]. See also LOS Convention, 
Article 301, requiring parties, in exercising their rights and p[er]forming their duties 
under the Convention, to refrain from any threat or use of force in violation of the 
Charter. 958 

This analysis is buttressed by the Charter's trumping clause; no treaty, including 
the LOS conventions, can supersede the Charter. The peaceful purposes lan- 
guage in Article 88 and other Convention provisions cannot override Charter 
norms, such as those in Article 2(4), but also those in Article 51, i.e., the inherent 
right of individual and collective self-defense. Of course, naval forces of States 
not involved in armed conflict may use the oceans for military purposes, although 



192 The Tanker War 



these forces may be restricted in some maritime zones, e.g., the territorial sea. 
The other rules clauses in the LOS conventions come into force for States engaged 
in armed conflict. 

To the extent that the LOS conventions recite customary norms — and such is 

962 

the case for the High Seas Convention and the LOS Convention's navigational 
articles — the other rules clauses are part of custom and are therefore in force for 
countries not party to one or the other of the Conventions. For those States party to 
the 1958 Conventions or LOS Convention, the customary status of the other rules 
clause is doubly in force. The LOS conventions may inform, i.e., give content to 
gaps in the LOAC, much as the law of self-defense may be informed by the LOAC. 
The law of the sea also can inform the content of Charter law, e.g., Security Council 

965 

resolutions. 

The conclusion is inescapable that the 1958 Conventions' other rules clauses, 
carried forward into the 1982 Convention, means that these treaties' terms are sub- 
ject to the law of armed conflict, of which the law of naval warfare is a part. Since 
the High Seas Convention, parts of the other 1958 Conventions and the 1982 Con- 
vention's navigational articles are part of customary law, the other rules clause 
is also part of customary law governing oceans law during armed conflict. More- 
over, the other rules clauses can also inform, i.e., give content to, Charter law, e.g., 
Council resolutions and the law of self-defense. 

Part E. Conclusions 

The UN Charter has been invoked in many armed conflicts since the Charter 
was signed in 1945. In some ways this has changed options available to States. Un- 
der the majority view, a State cannot use reprisals involving use of force during 

time of peace. The doctrine of necessity, i.e., a State may take what action it 

969 
deems necessary for self-preservation, may be of questionable validity today. 

Article 103 of the Charter declares that all treaties are subject to it; whether cus- 

970 

tomary law is equally subject to the Charter is open to question. The Charter 

condemns armed attacks and aggression, and Article 51 permits self-defense 

971 
against armed attacks and aggression armee, in the French text. This permits re- 
sponses for attacks on merchant ships at sea, including those sailing independ- 

972 

ently, as most do. The Charter also permits the Security Council to make 

973 

binding decisions that have the force of treaty law for UN Members. The Coun- 
cil and the General Assembly may also call upon States for action, or recommend 
it; these resolutions have no intrinsic force but may restate law, and practice under 

974 

them may develop into custom. 

Article 5 1 preserves the inherent right of individual and collective self-defense; 
these options have the same content and scope today as they did before World War 

975 

II. States may respond in individual or collective anticipatory self-defense, so 
long as the response is necessary, proportional and admitting of no other option, as 






World Public Order 193 



976 

perceived by the decisionmaker at the time of response. States may also react, 
individually or collectively, in self-defense to attack or aggression, i.e., after the at- 
tack or aggression has occurred, so long as the response is necessary and propor- 

977 

tional. States also may respond with retorsions, i.e., action that is unfriendly but 

978 

lawful, or they may reply with reprisals not involving use of force. Rather than 

requesting Security Council action, States may also employ regional organizations 

979 
to maintain international peace and security. 

Besides Charter standards, an independent, customary norm of the right to 

980 

self-defense exists alongside Article 51. The right to self-defense may have;ws 

981 

cogens status today. Collective self-defense may be asserted through bilateral or 
multilateral treaties, but nothing in the Charter forbids more informal arrange- 

982 

ments. If Article 5 1 supersedes, through Article 103, treaty norms, e.g. those in 
the law of armed conflict, any Article 51 response should receive its content from 

983 

the LOAC. By parity of reasoning, any self-defense claims based on custom and 
not on Article 51 as part of a treaty, i.e., the UN Charter, should also receive their 

984 

content based on the LOAC. 

Besides the appealing symmetry of logic behind this approach, there are practi- 
cal policy reasons for following law of armed conflict standards in any self-defense 
claim. These are illustrated by the Tanker War. 

First, both Iran and Iraq claimed the other was guilty of aggression and that 
therefore the response was in self-defense. Even today, despite the opinion of some 
States through their reactions that Iran was the aggressor, the issue remains unre- 
solved, and may remain unresolved for a long time. However, the peripheral legal 
consequences flowing from the initial acts by these States in 1980 — e.g., attacks on 
merchant ships — had impact on third States, who had only one known standard to 
observe, i.e., the LOAC. Ultimately, only one State, Iran or Iraq, was guilty of ag- 
gression, and only one State, Iran or Iraq, could legitimately claim self-defense. 

985 

The aggressor was bound by LOAC standards. Since the issue was and is in 
doubt, the only standard for measuring self-defense was the LOAC. This was how 
the United States behaved with respect to destruction of Iran Ajr and the oil plat- 
forms and in convoy operations. The Iran Ajr crew was repatriated, following hu- 
manitarian law standards; oil platforms occupants were warned and given an 

986 

opportunity to leave, parallelling Hague IX. 

Second, this approach is congruent with the longstanding rule, in place long be- 
fore the Charter, that humanitarian law treaties or those governing neutrality re- 

987 

main in effect during war. As a theoretical matter, given Charter supremacy 
under Article 103, a State could act under Article 5 1 independently of these norms. 
The Security Council held the view that these standards should be observed, re- 
gardless of who had a legitimate self-defense claim, in its resolutions condemning 
attacks on civilian centers, merchant ships and in citing the Geneva Conventions 

988 

and the Geneva Gas Protocol. Any self-defense claim should be conditioned by 



194 The Tanker War 



LOAC standards and humanitarian law standards in particular, whether that 
self-defense claim is based on Article 51 as treaty law or whether it is grounded in 
custom. The policy, public relations and practical considerations are obvious; that 
is what States and people expect today, regardless of the niceties of legal analysis. 

Third, observing LOAC treaty norms in the context of Article 51, treaty-based 
self-defense claims is consistent with the policy of pacta sunt servanda, itself a policy 
of the Charter, Article 2(2). 989 

The law of neutrality remains in full force and vigor in the Charter era, albeit 
perhaps conditioned by Charter law in given situations. For example, a Security 

990 

Council decision could alter traditional contraband rules. Practice of States 
since World War II calls to mind the historic claims for the intermediate state of 
nonbelligerency, between neutrality and belligerency, although whether this has 
ripened into custom is an open question. It could be said that this practice amounts 
in some cases to informal collective self-defense, which is permitted under the 
Charter. In other situations a debate remains as to whether international law rec- 
ognizes an intermediate status between belligerency and neutrality. Most coun- 
tries, including the United States, say that there is no intermediate stage of 

991 

non-belligerency. 

Charter considerations apart, decisionmakers must continue to take into ac- 
count traditional principles of sources of law, treaty interpretation including the 

992 

impact of war, and treaty succession. The LOS conventions' other rules clauses 

993 

mean that the conventions are subject to the law of armed conflict. 

NOTES 



1. See, e.g., McDougal & Feliciano chs. 1,4; McDougal, Lasswell & Chen chs. 1,4-5; Myres S. McDouGALer 
al., Law and Public Order in Space ch. 1 (1963); McDougal et ai, The World Constitutive Process of Authoritative 
Decision, 19 J. Legal Educ. 253, 258-300, 403-15 (1967); Moore, Prolegomenon, n. 1. 35, 668-72; Suzuki, TheNew.n.l.iS, 
22-30; Walker, Sea Power, n. 1.35, 308. 

2. See e.g. McDougal et ai, Law and Public Order, n. 1, 94-95; McDougal & Burke 36; McDougal, Lasswell 
& Chen 161-62; see also Myers S. McDougal, The Hydrogen Bomb Tests, 49 AJIL 357-58 (1955); McDougal, et al, 
Theories, n. 1.35,202-03; McDougal et ai, The World, n. 1,256-57; Moore, Prolegomenon, n. 1.35,667; Suzuki, n. 1.35, 19, 
30-34; Walker, Sea Power, n. 1.35, 309. 

3. Id. at 309; see also McDougal, The Hydrogen, n. 2, 357-58. 

4. McDougal, Lasswell & Chen 465. 

5. See, e.g., nn. 11.215 and accompanying text. 

6. See, e.g., nn. 11.391, 414-19, 477-82 and accompanying text. 

7. See generally Philip C. Jessup, Transnational Law 2 (1956). 

8. Cf McDougal & Feliciano 339-40; NWP 1 - 14M Annotated HS.ln.4& fig. A5- 1 ; N WP 9A Annotated 1 5.1 n.3 
&fig. SF5-1. 

9. See generally Andreas F. Lowenfeld, International Litigation and the Quest for Reasonableness, 245 RCADI 9 
(1994). 

10. UN Charter, art. 103; see also Nicaragua Case, 1984 ICJ 440;Vienna Convention, art. 30(1); Simma 1119-23; 
Francis Deak, Neutrality Revisited, in Transnational Law in a Changing Society: Essays in Honor of Philip C. 






World Public Order 195 



Jessup 137, 143 (Wolfgang Friedmann et al. ed. 1972). The later-in-time rule of Vienna Convention, art. 59, states the 
same principle as to the Charter and pre-1945 treaties, but UN Charter, art. 103, says the Charter supersedes later 
treaties as well. To the extent that the Charter, and actions pursuant to it, would be considered customary law, 
undoubtedly the later custom would triumph on inconsistent customary obligations under the older treaties. 
Nicaragua Case, 1986 ICJ at 31-38, 91-135. Customary Charter law would also weight heavily in the balance under 
traditional source analysis, e.g., ICJ Statute, art. 38(1) and Restatement (Third) §§ 102-03, as to "new," post-Charter 
custom, whether derived from contrary State practice or from, e.g., restatements in international agreements or 
resolutions of international organizations. To the extent that Charter-stated norms have ascended tojus cogens status, 
they prevail. Commentators differ widely on the scope oijus cogens. See generally Vienna Convention, art. 64; T.O. 
Elias, The Modern Law of Treaties 177-87(1974); 1 Oppenheim §§ 2,642, 653; Restatement (Third) §§ 102r.n.6, 
323 cmt. b, 331(2), 338(2); Sinclair 17-18, 85-87, 94-95, 160, 184-85, 218-26, 246 (Vienna Convention, art. 64 
considered progressive development in 1984); Simma 1118-19; Grigorii I. Tunkin, Theory of International Law 98 
(William E. Butler trans. 1974); Levan Alexidze, Legal Nature of Jus Cogens in Contemporary Law, 111 RCADI 219, 
262-63 (1981); John N. Hazard, Soviet Tactics in International Lawmaking, 1 Denv. J. Intl L. & Pol. 9, 25-29 (1977); 
Eduardo Jimenez de Arechaga, International Law in the Past Third of a Century, 159 RCADI 1, 64-69 (1978); Walker, 
Integration and Disintegration 60, 63; Mark Weisburd, The Emptiness of the Concept of Jus Cogens, As Illustrated by the War 
in Bosnia-Herzegovina, 17 Mich. J. Int'l L. 1 (1995). Nicaragua Case, 1986 ICJ at 100-01 held UN Charter, art. 2(4) was 
customary law having the character of jus cogens. 

11. Nicaragua Case, 1986 ICJ 94. The decision has stimulated considerable criticism. Louis B. Sohn, The 
International Court of Justice and the Scope of the Right of Self-Defense and the Duty of Non-intervention, in International 
Law at a Time of Perplexity 869 n. 1 ( Yoram Dinstein et al. ed. 1 989). For a sampling, which as Sohn notes are mostly 
concerned with the interplay of fact and law in the case, see, e.g., American Society of International Law, Resolution of 
the Annual Meeting, Business Meeting, 1986 ASIL Proc. 1332, 134-37; Panel, World Court Jurisdiction and U.S. Foreign 
Policy in Latin America, id. 321; Editorial Comments, 1985 id. 79; Observations on the International Court of Justice's 
November 26, 1 984 Judgment on Jurisdiction and Admissibility in the Case of Nicaragua v. United States of America, id. 423; 
Nicaragua v. United States: Constitutionality of U.S. Modification of ICJ Jurisdiction, id. 682; Panel, Legal and Political 
Issues in the Central American Conflict, id. 40; Panel, Should the United States Reconsider Its Acceptance of World Court 
Jurisdiction?, id. 95; CM. Chinkin, Third-Party Intervention Before the International Court of Justice, 80 AJIL 495 (1986); 
Lloyd N. Cutler, Some Reflections on the Adjudication of the Iranian and Nicaragua Cases, 25 VJIL 432 (1985); Anthony A. 
D' Amato, The United States Should Accept by a New Declaration, the General Compulsory Jurisdiction of the World Court, 80 
AJIL 331 (1986); Michael J. Glennon, Nicaragua v. United States: Constitutionality of U.S. Modification of ICJ 
Jurisdiction, 79id. 373 (1985); Keith Highet, Evidence, the Court and the Nicaragua Case, 81 id. 1 (1987); Highet, Review 
Essay, id. 287 (1987); Highet, You Can Run But you Can't Hide — Reflections on the U.S. Position in the Nicaragua Case, 27 
VJIL 551 (1987); Christopher C. Joyner & Michael A. Grimaldi, The United States and Nicaragua: Reflections on the 
Lawfulness of Contemporary Intervention, 25id. 621 (1985); Jeanne J. Kirkpatrick, Law and Reciprocity, 1985 ASIL Proc. 
59; Letter to the Editor-in-Chief, 80 AJIL 942 (1986); Harold G. Maier, Appraisals of the ICJ's Decision: Nicaragua v. 
United States (Merits), 81 id. 11 (1987); John Norton Moore, The Secret War in Central America and the Future of World 
Order, 80 id. 43 (1986); Moore, The Secret War in Central America— A Response to James P. Rowles, 27 VJIL 273 (1987); 
Patrick M. Norton, The Nicaragua Case: Political Questions Before the International Court of Justice, id. 459 (1987); W. 
Michael Reisman, Has the International Court Exceeded its Jurisdiction? , 80 AJIL 128 (1986); James P. Rowles, "Secret 
Wars, " Self-Defense and the Charter — A Reply to Professor Moore, id. 968 ( 1 986); Craig L. Scott & Gary L. Carr, The ICJ 
and Compulsory Jurisdiction: The Case for Closing the Clause, 81 id. 57 (1986). 

12. By contrast, the US position was that the law of armed conflict (LOAC) should be applied during the conflict. 
See n. 11.84. 

13. Goodrich et al.; Ruth B. Russell & Jeanette E. Muther, a History of the United Nations Charter: The 
Role of the United States 1940-1945 (1958) are the best general contemporary accounts; see also Simma 2-23. 
Revisionist analyses, e.g., Robert C. Hildebrand, Dumbarton Oaks: The Origins of the United Nations (1990) 
have appeared, now that classified documents and private papers have been opened. 

14. Goodrich?/ al. ix summarizes practice through January 1, 1966. Simma's trend studies run through late 1993; 
see also Repertoire of Practice of the Security Council; Repertory of Practice of United Nations Organs; and Yearbook 
of the United Nations. Goodrich et al. ix. 

15. See McDougal, The Hydrogen, n. 2, 357-58. 

16. UN Charter, Preamble; see also Simma 45-48. 

17. Goodrich?/ al. 650; Simma 1 57-58. See also UN Charter, art. 110; Goodrich et al. 648-49; Simma 1 191-95. Id. 
art. 4 declares procedures by which new Members are admitted. See also Goodrich et al. 85-96; Simma 158-75. 



196 The Tanker War 



18. Compare S.C. Res. 552 (1984), in Wellens 473, with UN Charter, Preamble. Resolution 552 condemned 
Iranian attacks on commercial shipping en route to and from Gulf Cooperation Council ports during the Tanker War. 
See also n. 11.258 and accompanying text. 

19. Goodrich et al. 21; cf. Simma 48. 

20. Id., referring to UN GAOR, 5th Sess., 1st Comra, 362d mtg. 11 21 (Oct. 13, 1950); id. 300th plen. mtg., 1IH 91-92 
(Nov. 2, 1950), which approved the General Assembly's Uniting for Peace Resolution, G.A. Res. 377 (1950), in 45 AJIL 
Supp. 1 (1951) (UFP Resolution); see also Simma 48 and G. A. Res. 378, Duties of States in the Event of Outbreak of 
Hostilities, in Key Resolutions 2. 

21. Friendly Relations Declaration, in 9 ILM 1292 (1970); see also Simma 48. 

22. Jorge Castenada, Legal effects of United Nations Resolutions 81-1 16 (Alba Amoia trans. 1 969) (Korean 
war, 1957 Arab-Israeli war, Rhodesia). For another analysis of the UFP Resolution, see generally Walter L. Williams, 
Jr., Neutrality in Modern Armed Conflicts: A Survey of the Developing Law, 90 Mil. L. Rev. 9, 15 (1980). 

23. E.g., Definition of Aggression, in 69 AJIL 480, 483 (1975), incorporating by reference Friendly Relations 
Declaration. The AJIL Definition of Aggression version omits id., art. 3(d): 

Any of the following acts, regardless of a declaration of war, shall, subject to and in accordance with the provisions 
of article 2 [of the Resolution], qualify as an act of aggression. 

(d) An attack by the armed forces of a State on the land, sea or air forces, marine and air fleets of another State — 

Compare Definition of Aggression, art. 3, 69 AJIL at 482, with, e.g., the version in Julius Stone, Conflict Through 
Consensus 186, 188 (1977), or the draft version in UN General Assembly Special Committee on the Question of 
Defining Aggression,Reportofthe Working Group, UN Doc. A/AC.134/L.46,at4(1974),m 13 ILM 710, 713 (1974). The 
error has crept into secondary sources, e.g., Ahmed M. Rifaat, International Aggression 321, 324 (1974). 

24. GooDRiCH^a/. 28,citingDoc.644,I/l/34{l),6UNCI0446-47(1945);5^a/5oRussELL&MuTHER,n. 13,911. 

25. Goodrich ef al. 20; Simma 48. 

26. Id. 25-26; Certain Expenses of the United Nations, 1962 ICJ 151, 213-15 (Fitzmaurice, J., sep. opin.). Simma 
50-52 does not assign any priority to UN Charter, art. 1(1). 

27. UN Charter, art. 1(1). 

28. Goodrich et al. 28; compare UN Charter, art. 1(1), with id., arts. 2(7), 5, 39, 41-42, 50; see also n. 14 and 
accompanying text. 

29. Goodrich et al. 28, citing Doc. 644, n. 24, 453. 

30. UN Charter, art. 2(1); see also Simma 73-74. National sovereignty, although diminished and eroded in some 
situations, remains a fundamental principle of international law. LOS Convention, art. 157(3); Vienna Convention, 
preamble; S.S. Lotus (Fr. v. Turk.), 1927 PICJ (ser. A), No. 10, at 4, 18; S.S. Wimbledon (UK v. Ger.), 1923 id., No. 1, at 
15, 25; Friendly Relations Declaration, in 9 ILM 1292 (1970); U.N. Secretary-General, A n Agenda for Peace: Report of 
the Secretary-General on the Work of the Organization, UN Doc. A/47/277, S/24111 (1992), in 31 ILM 956, 959 (1992); 
Michael Akehurst, A Modern Introduction to International Law 21-23 (Brian Chapman ed., 3d ed. 1977); 
Brierly 45-49; Brownlie, International Law ch. 1 3; Mcnair 754-66; Goodrich et al. 36-40; Restatement (Third), 
Partl,ch. 1, Introductory Note , 16 &17; Simma 79-87; R.P. Anand, Sovereign Equality of States in International Law, 197 
RCADI 9, 22-51 (1986); BouuosBouiros-Ghah,Empowenng the United Nations, Foreign Aff. 89, 98-99(Winter 1992); 
Jonathan I. Charney, Universal, n. 1.32, 530; Gerald Fitzmaurice, The General Principles of International Law Considered 
from the Standpoint of the Rule of Law, 92 RCADI 1, 49-50 (1957); Louis Henkin, International Law: Politics, Values and 
Functions, 216 id. 9, 46, 130 (1989); Oscar Schachter, International Law in Theory and Practice, 178 id. 9, 32 (1982); 
Humphrey Waldock, General Course on Public International Law, 106 id. 1, 156-72 (1962). 

31. See nn. 47-157 and accompanying text. 

32. UN Charter, art. 1(2); see also Simma 53. 

33. Goodrich et al. 29-32; Russell & Muther, n. 13, 810-13. Views on the existence and scope of 
self-determination vary. See generally Advisory Opinion on Namibia, 1971 ICJ 14, 31; Western Sahara, 1975 ICJ 12, 
31-35, id. 116, 121-22 (Dillard,J.,sep. opin.); Friendly Relations Declaration, m 9 ILM 1292 (1970); Helsinki Accords, 
Principle 8, 14 ILM 1292, 1295 (1975); Brownlie, International Law 595-98; 1 Oppenheim §§ 85, 274; Rupert 
Emeison, Self-Determination, 65 AJIL 459 (1971); Robert Rosenstock, The Declaration of Principles of International Law 



World Public Order 197 



Concerning Friendly Relations: A Survey, id. 713, 730-33 (1971); Self -Determination, in Simma 56-72; Eisuke Suzuki, Self 
Determination and World Public Order, 16 VJIL 779 (1976). 

34. E.g., UN Charter, art. 1(2). 

35. G.A. Res. 1514 (I960), elevated by, e.g., S.C. Res. 232 (1966), H 4, in Wellens 128. 

36. Goodrich et al. 31-32. 

37. Covenant on Civil & Political Rights, art. 1; Covenant on Economic, Social & Cultural Rights, art. 1. 

38. G.A. Res. 1573 (1960), in Key Resolutions 177. 

39. Goodrich et al. 32. 

40. See Walker, State Practice 141 . 

41. S.C. Res. 202, 217 (1965); 221, 232 (1966); 253 (1968); 277, 288 (1970); 314, 318, 320 (1972); 333 (1973); 388 
(1976); 409 (1977); 437 (1978); 460 (1979); 463 (1980), in Wellens 125-50; see also nn.— and accompanying text. 

42. See Walker, State Practice 1 42 -43 . 

43. See n. 37 and accompanying text. 

44. See generally, e.g., nn. 11.218, 251 and accompanying text. 

45. S.C. Res. 540 (1983), in Wellens 451; see also nn. 11.216-18 and accompanying text. 

46. S.C. Res. 552 (1984), in Wellens 473; see also nn. 11.251-60 and accompanying text. 

47. Goodrich etal. 41-42, citing inter alia Inter- American Treaty of Reciprocal Assistance, Sept. 2, 1947, art. 2,62 
Stat. 1681, 700, 21 UNTS 77, 95 (Rio Treaty); Charter of the Organization of American States, Apr. 30, 1948, art. 20, 2 
UST 2394, 2420, 119 UNTS 3, 58; amended by Protocol, Feb. 27, 1967, art. 6, 21 id. 607, 662; Protocol, Dec.5, 1985, 21 
ILM 529 (1985) (OAS Charter); North Atlantic Treaty, n. 11.437, art. 1, 63 Stat. 2242, 34 UNTS 244; Treaty on 
Friendship, Co-operation & Mutual Assistance, May 14, 1955, arts. 3-4, 219 UNTS 3, 28 (Warsaw Pact), abrogated by 
Protocol, July 1, 1991; cf. Bowman & Harris 196 (11th Cum. Supp. 1995). See also Russell &MuTHER,n. 13,657-59. 
Not all countries, including the United States, are party to the 1985 OAS Protocol. Bowman & Harris 177 (1 1th Cum. 
Supp. 1995). For an OAS Charter composite text, see 33 ILM 985 (1995). 

48. Goodrich et al. 42-43; see also nn. 11.437-45 and accompanying text. 

49. S.C. Res. 479 (1980), in Wellens 449 (calling on Iran, Iraq to refrain from any further use of force and to settle 
their dispute by peaceful means and in conformity with principles of justice and international law); see also, e.g., these 
resolutions in the Arab-Israel conflicts, S.C. Res. 44 (1948), 344 (1973), 350 (1974), in id. 633, 682, 685; the 
India-Pakistan conflicts, S.C. Res. 21 1,215 (1965), in id. 428, 430; the Falklands-Malvinas war, S.C. Res. 502 (1982), in 
id. 594; Walker, State Practice 133-38, 143-45, 153-54. 

50. Goodrich et al. 43. 

5 1 . UN Charter, art. 2(4), incorporating by reference id., art. 1 . For analysis of Article 2(4)'s antecedents and the 
drafting of Article 2(4), see Bowett, Self-Defence ch. 2; Brownlie, use of Force 3-116; Goodrich et al. 44-45; 
Russell &MuTHER,n. 13, 110-12, 161-63,456-57,672-75; Simma 109-11; David K. Linnan, Self-Defense, Necessity and 
U.N. Collective Security: United States and Other Views, 1991 Duke J. Comp. & Int'l L. 57, 58-68. 

52. Bowett, Self-Defence 31-32; Brownlie, use of Force 113; Goodrich et al. 45-46; McDougal& Feliciano 
232-41 ; Stone 262-63; Gamal Moursi Badr, The Exculpatory Effect of Self-Defense in State Responsibility, 10 GA. J. Int'L 
&Comp.L. 1,10-14(1980); Linnan, Self-Defense, n. 51, 68-69; Claude Humphrey Meredith V/aldock, The Regulation of 
Force by Individual States in International Law, 8 1 RCADI 496-99 ( 1 952). See also Addendum to the Eighth Report on State 
Responsibility, UN Doc. A/CN.4/318/ADD. 5-7, in 2(1) Y.B. Int'l L. Common 13, 51-70 (1980), collecting other 
commentators' views. 

53. See nn. 158-630 and accompanying text. 

54. Bowett, Self-Defence 29; Brownlie, Use of Force 113; Philip C.Jessup, A Modern Law of Nations 135, 
168 (1956); McNair 216-18; Grigorii I. Tunkin, Co-Existence and International Law, 95 RCADI 1, 63-66 (1959). 
Nicaragua Case, 1986 ICJ 98-102, might be construed to go further, i.e., to elevate it to;u5 cogens status, as Tunkin, 
International Law in the International System, 147 RCADI 98 (1975) seems to do. 

55. Goodrich et al. 48-49 present the issue. 



198 The Tanker War 



56. Bowett, Self-Defence ch. 6 (discounting including "economic aggression" within the definition); 
Goodrich et al. 48; Rosalyn Higgins, The Development of International Law Through the Political Organs of 
the United Nations 176 (1963); McDougal & Feliciano 193-96. 

57. E.g., OAS Charter, n. 47, arts. 16-17, 2 UST 2394, 119 UNTS 56, as amended by Protocol, n. 47, art. 5, 21 UST 
622 (separate provisions denouncing economic or political coercion and condemning forcible occupation of 
territory). 

58. ELiAS,n. 10,170-76; Sinclair 177-81; Richard D. Kearney & Robert E. Dalton, The Treaty on Treaties, 64 AJIL 
495, 532-35 ( 1970); 6wf see Lung-Fong Chen, State Succession Relating to Unequal Treaties 42-49 (1974) (arguing 
for including economic or political pressure as grounds for treaty invalidity). Some States have tried to reinsert 
economic coercion by reservation or declaration; this has been opposed vigorously. Sinclair 65-68. 

59. Compare Vienna Convention, art. 52, with Vienna Convention on Law of Treaties Between States & 
International Organizations, Mar. 20, 1986, art. 52, 25 ILM 543, 572 (1986) (voiding treaties procured by force or 
threat of force in violation of the Charter's international law principles). The latter treaty is not in force but may restate 
customary law in some respects. Brownlie, International Law 11-13; 1 Oppenheim §§ 9 at 28, 10 at 33. 

60. Goodrich et al. 49-50; McDougal & Feliciano 194-95 nn.165-69. 

61. See n. 69 and accompanying text; Jordan J. Paust & Albert Blaustein, The Arab Oil Weapon — A Threat to 
International Peace, 68 AJIL 410 (1974) seem to have a contrary view. 

62. Definition of Aggression, 13 ILM 710 (1974); see also 2 Benjamin B. Ferencz, Defining International 
Aggression 1-53(1976); RIFAAT, n.23,ch. 15; Stone, Conflict, n. 23;BengtBroms, The Definition of Aggression, 154 
RCADI 299, 315-87 (1978). 

63. Charter of Economic Rights & Duties, G.A. Res. 3281 (1974), in 69 AJIL 484 (1974) (also referred to as New 
International Economic Order or NIEO). 

64. President Harry S. Truman, U.S. Participation in the U.N.: Report to Congress for the Year 1950, at 107 
(1950), in 5 Whiteman 740. See also Goodrich et al. 44-45; 298-99, citing Russell & Muther, n. 13, 670-72. 

65. Compare Definition of Aggression, n. 62, art. 1, 13 ILM 712, with UN Charter, art. 2(4). "State" includes 
groups of States and is used without prejudice to recognition issues or whether a State is a UN Member. Explanatory 
Note, 13 ILM 713. 

66. Definition of Aggression, n. 62, art. 2, 13 ILM 713. 

67. Id, art. 3, 13 ILM 713-14. 

68. Id., art. 4, 13 ILM 714. 

69. Id., art. 5(1), 13 ILM 714. Id., art. 7, 13 ILM at 714, says nothing in the Definition prejudices the right to 
self-determination, freedom and independence in the Friendly Relations Declaration. The latter does state, inter alia: 
"No State may use or encourage the use of economic, political or any other type of measures to coerce another State . . . 
to obtain from it the subordination of the exercise of its sovereign rights and to secure from it advantages of any kind." 
Friendly Relations Declaration, 9 ILM 1295 (1970). Although id. 11 3, 9 ILM 1297, declares that "The principles of the 
Charter . . . embodied in this Declaration constitute basic principles of international law . . . ," whether economic 
coercion is a Charter principle is open to question particularly when it had been rejected by the Vienna Convention 
negotiators and by subsequent practice under that Convention. See n. 59 and accompanying text. Law-stating 
resolutions, e.g., Friendly Relations, are no more than evidence of a source of international law. Assembly resolutions 
are not binding in and of themselves. UN Charter, arts. 10-11, 14; Brownlie, International Law 14, 698-99; 
Goodrich et al. 125-27, 144; 1 Oppenheim § 16; Restatement (Third) § 103(2)(d) & r.n.2; Simma 236-40. 

70. Compare NIEO, n. 63, art. 32, 69 AJIL 493, with Friendly Relations Declaration, 9 ILM 1295. 

71. Texas Overseas Petrol, v. Libyan Arab Repub., 17 ILM 1, 28-31 (Arb. 1978). 

72. See n. 60 and accompanying text. 

73. Charter practice supports either argument. Higgins, The Development, n. 56, 207-08. 

74. Corfu Channel (UK v. Alb.), 1949 ICJ 3, 36. 

75. S.C. Res. 242 (1967), in Wellens 669; see also Walker, State Practice 133-38. 

76. S.C. Res. 540 (1983), in Wellens 451; S.C. Res. 552 (1984), in Wellens 473 (also calling on States to respect 
territorial integrity of States not party to conflict); see also nn. 11.216-18, 250-59 and accompanying text. 

77. S.C. Res. 221, HH 4-5 (1966), in Wellens 127; see also Walker, State Practice 142-43. 



World Public Order 199 



78. Definition of Aggression, n. 62, arts. 1,3, 13 ILM 713-14, is largely concerned with aggression against land 
territory, but the catchall art. 4, id. at 714, covers floating territorial jurisdiction situations. For discussion of the 
"floating territorial" principle, see Restatement (Third) §§ 402, cmt. h & r.n.4; 502(2), cmt. d & r.n.3. 

79. See n. 20 and accompanying text. 

80. See nn. 96-97 and accompanying text. 

81. UN Charter, art. 51, 59 Stat. 1031, 1076. (English, French language versions; emphasis added). 

82. See nn. 207-88 and accompanying text. 

83. Sohn, The International Court, n. 11, 872-73. Linnan, Self-Defense, n. 51, 69 n.56, characterizes the language 
variance as "slightly different." Aggression can connote actions that do not involve force or the threat of the use of 
force, while "armed attack" has only one meaning. 

84. UN Charter, art. 111. 

85. Goodrich et al. 651; Simma 32-33, 1197-98 differs from this position. 

86. Goodrich et al. 343. 

87. Linnan, Self-Defense, n. 51, 79-84; but see Simma 30. The Convention can only be a guide, since it does not 
apply to treaties, i.e., the Charter, ratified before the Convention went into force. Vienna Convention, art. 4. The same 
is true for Vienna Convention on Law of Treaties Between States & International Organizations, n. 59, art. 4, 25 ILM 
548. 

88. Vienna Convention, arts. 31-32. 

89. Sinclair 1 14-15, listing three schools of thought. 

90. Jimenez de Arechaga, n. 10, 42. 

91. E.g., Myres S. McDougAl et al., Interpretation of Agreements and World Public Order (1967); but see 
Gerald Fitzmaurice, Vae Victis, or Woe to the Negotiators, 65 AJIL 358 (1971). Simma 35 says that "The interests and 
intentions of the founders remain secondary. Instead, the organizational purpose and the interests of the actual 
members gain the constitutive and decisive legal power and are the primary means for the solution of textual 
divergences." 

92. Jimenez de Arechaga, n. 10, 43. 

93. Id. 43-44. 

94. See nn. 207-88 and accompanying text. 

95. Vienna Convention, arts. 31(3)(b), 31(3)(c). 

96. Nicaragua Case, 1986 ICJ 102-03. 

97. Compare UN Charter, art. 1(1), 59 Stat. 1068, with id., art. 51, 59 Stat. 1076 (French version). 

98. "State" can mean a group of States and States that are not UN Members. Definition of Aggression, n. 62 art. 1 
& explan. note, 13 ILM 713. For analysis of the Resolution, see generally Dinstein ch. 5; 1-2 Ferencz, Defining, n. 62; 
Rifaat, n. 23; Stone, Conflict, n. 23; Broms, The Definition, n. 62, 299. 

99. Some Nuremberg judgments characterized the threat of force as an act of aggression. 2 Ferencz, n. 62, 27-30, 
citing inter alia Case 11, United States v. von Weizsaeker (Ministries Case), 14 Tr. War Crimes Before Nuremberg 
Milit. Trib. Under Control Council L. No. 10, at 314, 332; Broms, The Definition, n. 62, 341-44. 

100. Definition ofAggression,n. 62, art. 2, 13 ILM 71 3; see also 2 Ferencz, n. 62, 3 1-33; Broms, The Definition, n. 62, 
344-47 (prima facie culpability rule a compromise). 

101. Definition of Aggression, n. 62, art. 3, 13 ILM at 713. Some reprinted versions of art. 3 omit art. 3(d); compare 
id. with versions in 69 AJIL 482 (1975) and Rifaat, n. 23, 324; see also n. 23 and accompanying text. 

102. Nicaragua Case, 1986 ICJ 103, citing Definition of Aggression, art. 3(g), 13 ILM 713; Dinstein 130 (citing no 
authority but saying art. 3 is codified custom); Broms, The Definition, n. 62, 385-88, writing earlier, did not say Article 3 
restates custom. Broms chaired the UN committee that drafted the Definition. 2 Ferencz, n. 62, 50-53, does not 
suggest that Article 3 has passed into customary law. Definition critics argue that it does not state custom. See, e.g., 
Stone, Conflict, n. 23, ch. 9. Draft Code of Crimes Against Peace and Security of Mankind, art. 12, adopted 
Definition principles in 1988, but Report of the International Law Commission on the Work of its Fortieth Session, UN Doc. 
A/43/10 (1988), in 1988 Y.B. Intl L. Comm-n 1,71-73 (1990), says inter alia that Article 3 was "an instrument intended 



200 The Tanker War 



to serve as a guide" to the Security Council. There was no agreement on what might be included in a penal code. It may 
be, therefore, that Dinstein may be wide of the mark in including all of Definition, art. 3, as custom. Many provisions 
undoubtedly are. For commentary on the Nicaragua Case and its impact on the LOAC, see W. Michael Rhisman & 
James E. Baker, Regulating Covert Action 78-98 (1992). 

103. Definition of Aggression, n. 62, art. 4, 1 3 ILM 714. Dinstein 195-96 notes use of "armed attack" in the Hostage 
Case, n. 11.12, 1980 ICJ 29, 42; see also Nicaragua Case, 1986 id. 292 (Schwebel, J., dissenting). Unless the language, 
"invasion or attack . . . of the territory of another State, or any military occupation," in Definition of Aggression, art. 
3(a), 13 ILM 713, or the expression in id., art. 3(d), 13 ILM 713, concerning "attack ... on the land . . . forces ... of 
another State" (US Marines were among the US nationals held) includes this situation, assault on the US embassy, was 
a nonenumerated act of aggression contemplated by id., art. 4, 13 ILM 714. Rifaat, n. 23, 267, doubts whether the 
Council, charged by the Definition with defining acts of aggression, could denounce acts not involving use of force 
under the Definition, since Art. 1 is restricted to acts involving the use of force. It is submitted that the Council may 
also act on situations not involving use of force that are threats to the peace or breaches of the peace under the Charter. 
See UN Charter, arts. 25, 3 1 -42, 48, 50, 103; Stone, Conflict, n. 23,144; see also nn. 10, 65 1 -62 and accompanying text. 

104. The drafters meant to include this at Japan's insistence. Broms, The Definition, n. 62, 350-51, 365. 

105. However, unless they have surrendered, enemy warships may be attacked on the high seas and in territorial 
waters of their flag State, belligerent allies or the enemy. See Definition of Aggression, art. 3(d), 1 3 ILM 713 ("attack. . . 
on the... sea... forces"), supporting the view that neutral warships may not be attacked in territorial waters; see also 
Parts IV.B.l, IV.B.4, IV.C.4, IV.D.l, IV.D.3, IV.D.5, V.C.I, V.J.3, which inter alia recite the principle that a neutral 
warship has a right of self-defense if attacked in neutral waters or on the high seas. 

106. However, unless they have surrendered, enemy warships may be attacked on the high seas and in territorial 
waters of their flag State, belligerent allies or the enemy. See Parts IV.B.l, IV.B.4, IV.C.4, IV.D.l, IV.D.3, IV.D.5, 
V.C.I, V.J.3, which inter alia recite the principle that a neutral warship has a right of self-defense if attacked in neutral 
waters or on the high seas. 

107. Dinstein 197-98, citing Broms, The Definition, n. 62, 351. 

108. Dinstein 198, citing W.J. Fenrick, Legal Limits on the Use of Force by Canadian Warships Engaged in Law 
Enforcement, 18 CYBIL 113, 125-45 (1980). Dinstein adds that a US self-defense claim in the Mayaguez seizure was 
misplaced, citing Jordan J. Paust, The Seizure and Recovery of the Mayaguez, 85 Yale L.J. 774, 791,800(1976). But seen. 
137 and accompanying text. 

109. Compare Dinstein 197-98 with Broms, The Definition, n. 62, 350-51, 365. 

110. Rifaat, n. 23, 272; Stone, Conflict, n. 23, 166; see also LOS Convention, art. Ill; High Seas Convention, art. 
23; 1 Brown 135-38,258-59; 3 Nordquist 111 11 1.1-1 11.9(i); 2 O'Connell, Law of the Sea 1075-93 (hot pursuit). 

111. UN GAOR, 6th Coram, 1477th mtg., UN Doc. A.C.G.SR.1477, at 71 (1974) (remarks of Mr. Steel, UK 
delegate); see also Stone, Conflict, n. 23, 117. 

112. Compare Dinstein 198; Paust, n. 108, 795, 800, asserting US self-defense measures after Mayaguez's seizure 
were not justified. Dinstein 184 seems to contradict himself by saying, "At times, an armed attack [i.e., an act of 
aggression] occurs beyond the boundaries of all States [as when a] . . . battleship sinks a vessel [type unspecified] on the 
high seas." In 1965 Burundi characterized unjustified boarding and seizing of ships as aggression. UN Doc. A/AC. 914, 
at 3 (1965), cited in Bengt Broms, The Definition of Aggression in the United Nations 83 (1968). See also n. 108. 

113. Dinstein 129; Rifaat, n. 23, 270. 

114. Besides liners, which are protected under customary law, so long as they are not carrying warfighting or 
war-sustaining goods or persons, e.g., troops, these classes of merchant ships, even if flying an enemy flag, are likewise 
protected: hospital ships; small craft used for coastal rescue operations and other medical transports; cartel ships; 
vessels on humanitarian missions; ships carrying cultural property under special protection; scientific research or 
environmental protection vessels; coastal traders; coastal fishing ships; vessels designed or adapted exclusively for 
response to pollution incidents in the marine environment; ships that have surrendered; life rafts and life boats. They 
may lose protection if not used in their normal role, do not submit to identification and inspection when required, 
intentionally hamper combatant movements or do not obey orders to stop or move out of the way when required. 
NWP 1-14M Annotated 11 8.2.3; NWP 9A Annotated H 8.2.3; San Remo Manual 1111 47-48; see also Parts V.B.I, V.C.I, 
V.J.2, V.J.3. 

115. For an example of how worldwide communications route and reroute merchant ships as they sail 
independently, see Dominant Navig. Ltd. v. Alpine Shipping Co., 1982 AMC 1241 (Bauer, Arnold & Berg, arbs.). 

116. Definition of Aggression, n. 62, arts. 2, 4, 13 ILM 713-14. 



World Public Order 201 



117. Id., arts. 2, 3(c), 13 ILM 713. 

118. NWP1-14M Annotated HI! 7.7.4, 7.10; NWP9A Annotated HH7.7.4, 7.9; SanRemoManual 1111146(f), 151. 

119. For analysis of blockade, see Parts V.E., V.J. 3. 

120. Definition of Aggression, n. 62, art. 4, 13 ILM 714. 

121. E.g., Convention for Definition of Aggression, July 3, 1933, art. 2(3), 147 LNTS 67, 71-73 ("the aggressor in an 
international conflict shall . . . be . . . the first to . . . attack . . . the . . . vessels or aircraft of another State"), which Iran 
ratified; Convention for Definition of Aggression, July 4, 1933, art. 2(3), 148 id. 211, 215 (same); Convention for 
Definition of Aggression, July 5, 1933, Lith.-USSR, art. 2(3), 148 id. 79, 83 (same); Balkan Entente, Feb. 9, 1934, 
Protocol-Annex, 153 id. 153, 157; see also Broms, The Definition, n. 1 12, 26-27; Rifaat, n. 23, 91-93; Ann Van Wynen 
Thomas & A.J. Thomas, The Concept of Aggression in International Law 19-20 (1972); Broms, The Definition, n. 
62,312-14. 

122. See, e.g., Treaty of Non-Aggression & Pacific Settlement of Disputes, Jan. 21, 1932, Fin.-USSR, art. 1(2), 157 
LNTS 393, 396-97 (general policy statement). League of Nations Covenant, art. 10, denounced aggression generally 
without defining it, as does Saavedra Lamas Treaty, Oct. 10, 1933, 49 Stat. 3363, 3375, 163 LNTS 393, 405; see also 
Broms, The Definition, n. 112, 23-25; Rifaat, n. 23, 91-93; Broms, The Definition, n. 62, 312-14, for analysis of these 
and similar agreements. 

123. Compare Saadabad Pact, July 8, 1937, art. 4, 190 LNTS 21, 25 ("The following shall be deemed acts of 
aggression: . . . attack . . . on . . . vessels or aircraft of another State"), to which Iran and Iraq were original parties, with 
Convention for Definition of Aggression, July 3, 1933, art. 2(3), n.107, to which Iran was an original party; see also 
Broms, The Definition, n. 112, 27; Rifaat, n. 23, 91-92, 94-95. 

124. Stone 34, quoting 5 League of Nations Records of the Conference for the Reduction and Limitation of 
Armaments, Ser. D, at 31 (1933); compare Definition of Aggression, n. 62, arts. 3-4, 13 ILM 713-14. The 1933 USSR 
proposal was reintroduced during the UN study and is part of the Definition of Aggression preparatory works. 
McDougal & Feliciano 144, 168; Stone 46-47, 111, 115; Stone, Conflict, n. 23, passim; Thomas & Thomas, The 
Concept, n. 121, 34. 

125. Vienna Convention, art. 31(1); Restatement (Third) § 325(1) & cmts. a, b; Sinclair 119-26. 

126. See generally A.N. Yiannopoulos, Foreign Sovereign Immunity and the Arrest of State-Owned Ships: Need for an 
Admiralty Foreign Sovereign Immunities Act, 57 Tulane L. Rev. 1274, 1286, 1289-90 (1983). 

127. Letter of US Department of State Acting Legal Adviser Jack B. Tate to Acting Attorney General Philip B. 
Perlman, May 19, 1952, 26 Bulletin 984, 985 (1952) (Tate Letter). 

128. Id.. In 1920 the US Congress passed the Suits in Admiralty Act, 46 USC §§ 741-52 (1994), allowing suits 
against the government for claims arising out of US owned or operated commercial vessels; the Public Vessels Act, id. 
§§ 781-90 (1994), allowing claims for damage done by Navy or Coast Guard ships, followed in 1925. Congress enacted 
the Foreign Sovereign Immunities Act, 28 id. §§ 1330, 1332(a), 1391(f), 1441(d), 1602-1 1 (1994), declaring immunities 
of foreign government-owned ships and superseding case law and the Tate Letter, in 1 976; the Act has been amended 
since then. See generally Schoenbaum §§ 17-1, 17-3. 

129. See n. 115 and accompanying text. 

130. Harvard Draft Convention on Aggression, 33 AJIL Supp. 819, 827 n.l (1939). 

131. Id., art. 1(c), 33 AJIL Supp. 827 (defining aggression without elaborating examples); id., art. 1(h), 33 AJIL 
Supp. 827 (defining vessel to include aircraft). Although the Comment to art. 1(h) is unenlightening, art. l(c)'s citing 
of some of the agreements, nn. 121-22, shows the Harvard drafters were aware of the distinction and chose a broad 
"vessel" definition to include merchantmen. Draft Convention internal evidence supports this view. See, e.g., art. 2, 
Comment, 33 AJIL Supp. 886 ("hostility" to warships); art. 3, Comment, id. 886-87 ("warship" capture of "vessel"); 
art. 10, Comment, id. 902 (capture of "ship," further reference to "battleships"). 

132. Act of Chapultepec, Mar. 6, 1945, Part 1(3), 60 Stat. 1831, 1839; Rio Treaty, n. 47, art. 9, 62 id. 1702, 21 UNTS 
99; but see, e.g., Treaty of Brotherhood & Alliance, Apr. 14, 1947, Iraq-Transjordan, art. 5, 23 UNTS 147, 156-58, 
appearing to take the prewar USSR position; see also nn. 121-22 and accompanying text. 

133. See nn. 121-23 and accompanying text. 

134. Vienna Convention, arts. 34-38; Brownlie, International Law 11-15,622-25; 1 Oppenheim§§ 10, at 28; 11, 
at 32-36; 583; 589; 626-27; Restatement (Third) §§ 102(3) & cmts. f, i; 324; Sinclair 98-106. 

135. Walker, State Practice 137. 



202 The Tanker War 



136. O'Connell, Influence of Law 86-87, 87-86; 2 O'Connell, Law of the Sea 1099. 

137. 1975 Digest 13-15, 423-26, 766, 777-83, 879-86; Thomas E. Behuniak, The Seizure and Recovery of the S.S. 
Mayaguez.A Legal Analysis of United States Claims, 82 Mil. L. Rev. 41 (1978), 83 id. 59(1979); Christopher Greenwood, 
Comments in Dekker & Post 212, 214; Eleanor McDowell, Contemporary Practice of the United States Relating to 
International Law, 69 AJIL 861-63,874-79(1975); U.S. Recovers Merchant Ship Seized by Cambodian Navy, 72 Bulletin 
719 (1975); Walker, State Practice 146. Greenwood 214, analogizes The Red Crusader (Den. v. UK), 35 ILR 485 
(Comm'n of Enquiry, 1982) in the same category as the Mayaguez seizure. The Crusader case facts are different, 
however, in that the UK flag trawler was fired on, hit and visited, and crewmen were detained briefly, on grounds of its 
fishing on the Danish side of a Denmark-UK treaty line, for which Denmark conceded liability. Denmark withdrew 
charges of interference by H.M.S. Troubndge in the Danish warship's returning Crusader crew to their trawler; the 
Commission of Enquiry found that the Royal Navy made every effort to avoid recourse to violence between the Danish 
ship and the trawler, such "attitude and conduct [being] impeccable." 35 ILR 500. There was no self-defense claim, 
but as Greenwood notes, the incident is some evidence to support a view that States may use force to defend individual 
merchantmen — even single small fishing ships — flying their flag. 

138. US interests beneficially owned Hercules, a tanker. The Supreme Court of the United States reversed Amerada 
Hess Shipping Corp. v. Argentine Republic, 830 F.2d 42 1, 423-24 (2d Cir. 1987) on sovereign immunity grounds. 488 
US 428 (1989). See also Walker, State Practice 153-55. Although cases have secondary source or evidentiary status for 
deriving international law, they can restate or reinforce customary norms. ICJ Statute, arts. 38(1), 59; Brownlie, 
International Law 19-24; 1 Oppenheim § 13; Restatement (Third) § 103. 

139. Richard R. Baxter, Treaties and Custom, 129 RCADI 25, 99-101 (1970). 

140. ICJ Statute, art. 38(1); Brownlie, International Law 24-25; 1 Oppenheim H 14; Restatement (Third) H 103. 

141. Stone 34, quoting 5 League of Nations, n. 124; see also n. 122 and accompanying text. 

142. Stone 211, quoting draft Act Relating to the Definition of the Aggressor, 1933. 

143. See nn. 130-31 and accompanying text. 

144. Bowett, Self-Defence, ch. 11; Brownlie, Use of Force, chs. 19-22; McDougal & Feliciano6i-62, 143-216; 

NICHOLAS NYIRI, THE UNITED NATIONS' SEARCH FOR A DEFINITION OF AGGRESSION (1989); THOMAS & THOMAS, THE 

CoNCEPT,n. 121; S.M. Schwebel, Aggression, Intervention and Self-Defence in Modern International Law, 136RCADI411 
(1972) were concerned with broader policy perspectives and not narrow definitional issues. 

145. But see Dinstein 197-98 citing inter aha Broms, The Definition, n. 62, 35 1 ; see also n. 95 and accompanying text. 

146. E.g., Thomas & Thomas, n. 121, 15, recall that under the last century's defensive alliances, "any first attack 
might constitute an aggression obligating other contracting states ... to come to the assistance of any state attacked 
who was also a contracting party." That absolute position has changed with the Charter era, although UN Charter, art. 
5 1 preserves the inherent right of individual and collective self-defense. See also nn. 289-302 and accompanying text. 

147. Broms, The Definition, n. 62, 351. 

148. McDougal & Feliciano 148-206; STONE/>as5tm; Stone, Conflict, n. 23, passim. Dinstein 129, citing Broms, 
The Definition, n. 62, 346, makes the graphic point that a few stray bullets across a border cannot be invoked as 
aggression: "[Responsibility for a war of aggression may be incurred by the target State, should it resort to 
comprehensive force in over-reaction to trivial incidents." 

149. See nn. 485-579 and accompanying text. For anticipatory self-defense, recognized by the United States and 
many States, a third limitation is there must be no means for deliberation. See nn. 586-616 and accompanying text. 
Some objects are disproportionate per se, i.e., are not targets in any case. See nn. 580-85 and accompanying text. 

150. See nn. 592-616, 646-49 and accompanying text. 

151. See nn. II. 338-41, 459-65 and accompanying text. 

152. See nn. 617-30 and accompanying text. 

153. Goodrich et al. 41. 

154. UN Charter, art. 2(3). 

155. Goodrich et al. 42. 

156. See nn. 47-49, 652 and accompanying text. 

157. Simma 99; see also nn. 61-69 and accompanying text. 



World Public Order 203 



158. See nn. 81-86 and accompanying text. 

159. UN Charter, art. Ill; see also nn. 85-86 and accompanying text. 

160. Treaty for Renunciation of War as an Instrument of National Policy, Aug. 28, 1928, arts. 1-2, 46 Stat. 2343, 
2345-46, 94 LNTS 57, 63 (Pact of Paris; also known as Kellogg-Briand Pact or Briand-Kellogg Pact). 

161. US identical notes to Australia etal, June 23, 1928, 22 AJIL Supp. 109 (1928). The Secretary had made nearly 
verbatim but unofficial remarks April 23, 1928 at an American Society of International Law annual meeting. A ddress of 
the Honorable Frank B. Kellogg, 1928 ASIL PROC. 141, 143. For acceptances of the US positions, e.g., 1928(1) FRUS 
107-24. See also Secretary Kellogg telegram to US Ambassador to France Myron T. Herrick, June 20, 1928, id. 90, 91 ; 
Sohn, The International Court, n. 11, 872-75; Henry L. Stimson, The Pact of Paris: Three Years of Development, 11 
Foreign Aff. i, vii-viii (Special Supp. 1932). 

162. UK note to the United States, May 19, 1928, 1928(1) FRUS 66, 67. 

163. Brownlie, Use of Force 236-37; see also 5 Hackworth 144-45. Most say the US action was "authentic and 
binding commentary on and interpretation of the . . . [Pact of Paris.]" Robert H. FerrelL, Peace in Their Time: The 
Origins of the Kellogg-Briand Pact 192-200 (1968); see also Alexandrov 58; 3 Hyde H 596A, 1683; David Hunter 
Miller, The Peace Pact of Paris: A Study of the Briand-Kellogg Treaty 111 (1928); Philip Marshall Brown, The 
Interpretation of the General Pact for the Renunciation of War, 23 AJIL 374, 377-78 (1929); but see Quincy Wright, The 
Interpretation of Multilateral Treaties, id. 94, 104 (1929); Wright, The Meaning of the Pact of Paris, 27 id. 39, 43 (1933). 

164. S.S. Lotus (Fr. v. Turk.), 1927 PCIJ, Ser. A, No. 10, at 4, 1 8-1 9; see also S.S. Wimbledon, 1923 id., Ser. A, No. 1, 
at 15, 25. 

165. E.g., Louis Henkin, International Law: Politics and Values 8-10 (1995). 

166. See UN Charter, art. 2(1) (United Nations is "based on the sovereign equality of all its Members"); see also n. 
30. 

167. See nn. 87-97 and accompanying text. 

168. Nicaragua Case, 1986 ICJ 102-03. 

169. Sohn, The International Court, n. 11, 872-73; see also Linnan, Self-Defense, n. 51, 63-64. 

170. Bowett, Self-Defence ch. 9; McDougal & Feliciano 140-43; Waldock, The Regulation, n. 52, 451; compare, 
e.g., Badr, The Exculpatory, n. 52, 10-14. 

171. Definition of Aggression, n. 62, art. 3(g), 13 ILM 713-14. 

172. Nicaragua Case, 1986 ICJ 103. 

173. See n. 83 and accompanying text. 

174. Definition of Aggression, n. 62, art. 3(c), 13 ILM 713; see also Parts V.E, V.J. 3. 

175. Cf Definition of Aggression, n. 62, art. 4, 13 ILM 714; see also Broms, The Definition, n. 112, 150. 

176. Nicaragua Case, 1986 ICJ 104. 

177. Id. 543 (Jennings, J., dissenting); id. 331-47 (Schwebel, J., dissenting). 

178. Id. 94, 103; see nn. 586-90 and accompanying text. 

179. ICJ Statute, arts. 38(1), 59; see also Restatement (Third) § 103. 

180. Definition of Aggression, n. 62, art. 6, 13 ILM 714. 

181. 2 Ferencz, n. 62, 45-46; Broms, The Definition, n. 62, 358. 

182. See nn. 591-616, 646-49 and accompanying text. 

183. Cf. Vienna Convention, arts. 31(3)(b), 31(3)(c), 31(4); see also nn. 80-81 and accompanying text. 

184. Jimenez de Arechaga, n. 10, 46. 

185. This brings us almost full circle for Article 51 analysis to treaty interpretation methods advocated by 
McDougal et ai, Interpretation, n. 91, and decried by Fitzmaurice, Vae Victis, n. 91, and perhaps Sinclair 114. 

186. Compare UN Charter, ch. VII, with Dumbarton Oaks Proposals for the Establishment of a General International 
Organization, ch. VIII § 13, in Russell & Muther, n. 13, 1019, 1024-26. 



204 The Tanker War 



187. Verbarim Minutes of 9th Preliminary Session, June 25, 1945, Doc. 1210, P/20 (1945), 1 UNCIO 612, 620 
(1945), approving Report of the Rapporteur of Commission I to Plenary Session, June 24, 1945, Doc. 1 179, 1/9(1), 6 id. 
245,247(1945). Commission I had approved the Report of the Rapporteur of Committee 1 to Commission I, June 13, 
1 945 , Doc. 944, 1/l/34( 1 ), id. 446, 459. See Verbatim Minutes of 5th Meeting of Commission I, June 24, 1 945, Doc. 1 1 87, 
1/1 3, id. 202, 204 (emphasis added), as McDougal & Feliciano 235-36 note. Bowett, Self-Defence 182 seems to infer 
that other Committees also considered the matter, but the Conference history shows these Committees were 
concerned with collective self-defense issues. See Russell & Muther, n. 13, 688-706. 

188. Nicaragua Case, 1986 ICJ 102-03. 

189. See, e.g., Hans Kelsen, The Law of the United Nations 797-98 (1950); 2 0ppenheimH 52aa, at 156; Josef L. 
Kunz, Individual and Collective Self-Defense in Article 51 of the Charter of the United Nations, 41 AJIL 872, 878 (1947); 
Robert W. Tucker, The Interpretation of War Under Present International Law, 4 Int'l L.Q. 11, 29-30 (1951). 

190. TIF 430-31(status of Czechoslovakia, USSR, Yugoslavia in doubt because of treaty succession issues); see also 
Symposium, State Succession; Walker, Integration and Disintegration. 

191. See nn. 160-63 and accompanying text. 

192. See nn. 160-63 and accompanying text. For States not participating in the conference that produced the Pact, 
see TIF 430-31, the published understandings as preparatory works are equally binding unless acceding States reject 
them. Restatement (Third) § 313 cmt. g; Report of the International Law Commission on the Work of Its Eighteenth 
Session, UN Doc. A/6309/Rev. 1 (1966) (ILC Rep.), in 1966(2) Y.B. Intl L. Comm'N 169, 172, 223, rejecting Territorial 
Jurisdiction of International Commission of the River Oder, 1929 PCIJ, Ser. A, No. 23, at 5, 41 (Aug. 2, 1929 Order) 
(preparatory work for disputed articles of Treaty of Versailles, June 28, 1919, 225 CTS 188, not admissible because 
three States did not participate in conference producing treaty). Since the Report is available as part of the Vienna 
Convention, this interpretation binds parties to the Convention. As a later authoritative statement, it prevails over 
River Oder. ICJ Statute, art. 38(l)(d); Restatement (Third) § 103. 

193. The Convention applies to agreements concluded after it enters into force for a party. Vienna Convention, art. 
4. However, to the extent the Convention restates custom, it may be used to analyze the Pact of Paris, n. 1 60. Brownlie, 
International Law 11-15; 1 Oppenheim §§10, at 28; 11, at 33; Restatement (Third) § 102(3) & cmt. i, r.n.5. 

194. See nn. 161-62 and accompanying text. 

195. Other correspondence occurred well before signature. See nn. 161-62 and accompanying text. 

196. It went into force July 24, 1929; the US ratification was in January 1929. 2 Bevans 732. 

197. Gerald Fitzmaurice, Law and Procedure of the International Court of Justice, 1951-4: Treaty Interpretation and 
Other Treaty Points, 33 BYBIL 203, 273 (1957); see also D.W. Bowett, Reservations to N on- Restricted Multilateral Treaties, 
48 id. 67, 72-73 (1976). Earlier commentators said the Pact self-defense notes were reservations if they would be 
deemed to interpret it. See n. 163 and accompanying text. 

198. See n. 163 and accompanying text (Kellogg, Stimson). 

199. See nn. 168, 189 and accompanying text. 

200. See n. 163 and accompanying text. 

201. See n. 160 and accompanying text. 

202. See nn. 98-1 10 and accompanying text. 

203. ICJ Statute, art. 38(1); Restatement (Third), §§ 102-03. 

204. See nn. 10, 54 and accompanying text. 

205. See generally Carin Kahgan, Jus Cogens and the Inherent Right to Self-Defense, 3 ILSA J. Int'L & Comp. L. 767, 
823-27 (1997). 

206. Cf ICJ Statute, art. 38(1); Restatement (Third), §§ 102-03. 

207. See nn. 79-95, 167-79 and accompanying text. 

208. Jean Combacau, The Exception of Self- Defence in U.N. Practice, in Anthony Cassesse, The Current Legal 
Regulation of the Use of Force 9, 25 (1986). 

209. S.C. Res. 487 ( 198 1 ), in Wellens 441 . Commentators continue to debate the legitimacy of Israel's anticipatory 
self-defense claim for the raid. See, e.g., Alexandrov 159-65; Timothy L.H. McCormack, Self-Defense in 
International Law: The Israeli Raid on the Iraqi Nuclear Reactor ch. 10 (1995); Combacau, n. 208, 17, 34 n. 23. 



World Public Order 205 



210. S.C. Res. 22 (1947), in Wellens 34. 

211. Corfu Channel (UK v. Alb.), 1949 ICJ 4, 30-31. 

212. Waldock, The Regulation, n. 52, 500; see also Alexandrov 122-23; Brownlie, Use of Force 285. 

213. Alexandrov 123; Brierly 424. 

214. Corfu Channel, 1949 ICJ 34-35; see also Alexandrov 123-24; Brierly 424-27; McCormack, n. 209, 133-34; 
Gerald Fitzmaurice, The General Principles of International Law Considered from the Standpoint of the Rule of Law, 95 
RCADI 5, 172 (1957); Waldock, The Regulation, n. 52, 500-02. 

215. Alexandrov 122. 

216. Albania entered the United Nations in 1955. Cf. S.C. Res. 109 (1955), in Wellens 847. 

217. See nn. 168, 189 and accompanying text. 

218. See generally S.C, Res. 42-44, 46, 48-50, 53-54, 56-57, 59-62, 66 (1948); 72-73 (1949); 89 (1950), in Wellens 
632-45; Alexandrov 125-27. 

219. See generally S.C. Res.38-39, 47, 51 (1948), in Wellens 415-20; Alexandrov 127-29. 

220. S.C. Res. 82-85 (1950), in Wellens 325-26. 

221. UFP Resolution, n. 20; see also Castenada, n. 22, 81-116, tracing the Resolution's influence in Assembly 
practice; Juraj Andrassy, Uniting for Peace, 50 AJIL 563 (1956). 

222. See generally HdwinC Hoyt, The United States Reaction to the Korean Attack: A Study of the Principles of the United 
Nations Charter as a Factor in American Policy-making, 55 AJIL 45 (1961). 

223. S.C. Res. 95 (1951), in Wellens 648; see also Alexandrov 130-31; Higgins, The Development, n. 56, 213; 
Combacau, n. 208, 21; Walker, State Practice 133-35. 

224. Higgins, The Development, n. 56, 213-15; 2 Oppenheim, § 231, at 547; Stone 643-44. The issue arose during 
the Tanker War; see nn. 11.491-92 and accompanying text. See also Parts V.E., V.J. 5. 

225. US Secretary of State John Foster Dulles news conference remarks, Feb. 5, 1957, 36 Bulletin 306 (1957). 

226. See generally 3 Whiteman 1 092-94; Leo Gross, Passage Through the Suez Canal of Israel-Bound Cargo and Israel 
Ships, 51 AJIL 530, 538-40, 559 (1957). 

227. 3 Whiteman 1092; Gross, Passage, n. 226, 561. 

228. Alexandrov 190-91; see also Bowett, Self-Defence 15, 104; Brownlie, Use of Force 297. 

229. Cable 186; 1 Edwin B. Hooper et al, The United States Navy and the Vietnam Conflict 351 (1976); 
Walker, State Practice 134. 

230. In 1958 Iceland unilaterally extended its zone limit from 4 to 12 miles. Regulations Concerning Fishing 
Limits Off Iceland, June 30, 1958, quoted in 4 Whiteman 1157-58. A 7-nation conference including Britain protested, 
announcing they would continue to fish in the 8-mile belt. Britain said it would send armed escorts to protect UK flag 
trawlers if necessary on July 4. Id. at 1 160, quoting N.Y. Times, July 21 , 1958, 12. The Royal Navy began to intervene to 
protect UK trawlers and crews, although other fishermen stayed outside the 12-mile limit. Iceland Ministry of 
Foreign Affairs, British Aggression in Icelandic Waters 5-13 (June 1959), quoted in 4 Whiteman 1163-69. UK trawlers 
voluntarily withdrew from the disputed area in 1960 pending the ongoing Geneva conference on the law of the sea. Id. 
1 174, citing US UK Embassy dispatch to US State Department, Apr. 29, 1960; N.Y. Times, May 1 3, 1960, 3; id. Aug. 12, 
1960, 2. The conference broke up, disagreeing over breadth of the territorial sea. Robert D. Powers & Leonard R. 
Handy, How Wide the Territorial Sea?, in Franklin 304. Exchange of Notes, Mar. 11, 1961, Ice.-UK, 397 UNTS 275, 
settled the Cod War. 

231. Alexandrov 191-92; Brownlie, Use of Force 297-98. 

232. O'Connell, The Influence 38-39, 123; 2 O'Connell, Law of the Sea 805-06; 4 Whiteman 1157-58, 
reprinting US Ambassador to France Amory Houghten to Secretary of State Dulles, Jan. 26, 1958; US Embassy to 
France telegram to Dulles, Nov. 6, 1959; Christian Science Monitor, Dec. 28, 1960, 2; 10 Keesing 15277 (1956); 1 1 id. 
16080, 16184 (1957); Anna van Zwanenberg, Interference with Ships on the High Seas, 10 ICLQ 785, 791 (1961); 2 von 
Heinegg, 100-01; Walker, State Practice 141; Robert C. F. Reuland, Note, Interference with Non-National Ships on the 
High Seas: Peacetime Exceptions to the Exclusivity Rule of Flag-State Jurisdiction, 22 Vand. J. Transnat'L L. 1161, 1218 
(1989). 

233. Combacau, n. 208, 19, 27, 35 n.36, 37 n.83; see also Walker, State Practice 145-46. 



206 The Tanker War 



234. See nn. 289-302, 308-26 and accompanying text. 

235. Combacau, n. 208, 27, 35 n.39, 37-38 nn.84-90. 

236. S.C. Res. 228 (1966), in Wellens 658. 

237. S.C. Res. 265 (1969), in id. 673. 

238. S.C. Res. 262 (1968); 270 (1969); 279-80, 285 (1970); 313, 316-17 (1972); 332, 337(1973); 347 (1974); 425 
(1978); 509, 515-18, 520 (1982), in id. 755-62, 764, 766-68. 

239. See generally Combacau, n. 208, 23. 

240. Id. 19, 35 n.35. 

241. Chaim Herzog, The War of Atonement: October 1973, at 263-64 (1975). 

242. Agreement Concerning Claims Arising from Damage to United States Ship "Liberty," Dec. 15 & 17, 1980, 
Israel-US, 32 UST 4434, 1268 UNTS 33; Cable 31, 75, 119, 194-95; James Ennes, Assault on the Liberty (1980); 
O'Connell, The Influence 127; Walter L. Jzcobsen, A Juridical Examination of the Israeli Attack on the Liberty, 36Nav. 
L. Rev. 1 (1986). 

243. O'Connell, The Influence 70-71, 83, 127-29. 

244. See generally Trevor Ambrister, A Matter of Accountability: The True Story of The Pueblo Affair 
(1970); Edward Brandt, The Last Voyage of the Pueblo (1969); Cable 25-32, 34, 63, 69, 86,195-96; Daniel V. 
Gallery, The Pueblo Incident (1970); O'Connell, The Influence 5-7, 65; F. Carl Schumaker, Jr. & George C. 
Wilson, Bridge of No Return: The Ordeal of the U.S.S. Pueblo (1971). 

245. See generally D.K. Palit, The Indo-Pakistan War 1971, at 145 (1972); P. Sharma, The Indo-Pakistan 
Maritime Conflict, 1965: A Legal Appraisal (1970); 2 von Heinegg, 30; Walker, State Practice 143-44. 

246. Panel, n. 11.84, 171 (Lagoni remarks), referring to G. A Res. 2162 (1966), UN GAOR, 21 st Sess., UN Doc. 
A/6316 (1967). 

247. Fred Greene, The Indian-Pakistan War and the Asian Power Balance, 25 NWC Rev. 16(No. 3, 1973). AUSNavy 
task force to facilitate evacuating US nationals from Bangladesh, formerly East Pakistan, arrived after hostilities were 
over. Palit, n. 245, 144-50; 2 von Heinegg, n. 11.177, 31; Walker, State Practice 145. The task force may have been 
deployed to deter India from "pushing to extremes" its victory over Pakistan. The USSR deployed an anti-carrier 
group. Cable 198-99. 

248. O'Connell, The Influence 86-87; 2 O'Connell, Law of the Sea 1099; Walker, State Practice 144-45. 

249. The United States resupplied Israel by air. Cable 200; 2 von Heinegg 29; Walker, State Practice 137. 

250. Fisheries Jurisdiction (UK v. Ice.), 1972 ICJ 12 (interim measures); 1973 id. 3; 1974 id. 4 (merits); Cable 
199-200. 

251. Theodor Meron, The Fishermen's Protective Act: A Case Study in Contemporary Legal Strategy of the United States, 
69 AJIL 290 (1975). The efficacy of the Act, 22 USC §§ 1971-80 (1994), is limited by a broader view the United States 
has taken of offshore jurisdictional claims, e.g., for the EEZ through the Fisheries Conservation and Management Act, 
16 id. §§ 1801-02 (1994), unless a seizure otherwise violates international law as recognized by the United States. A 
further proviso may broaden Act coverage. See Steven J. Burton, The 1 976 Amendments to the Fishermen's Protective Act, 
71 AJIL 740 (1977). 

252. D.P. O'Connell, International Law and Contemporary Naval Operations, 44 BYBIL 18, 73-75 (1970). 

253. Roach & Smith 79. 

254. Dennis Mandsager, The U.S. Freedom of Navigation Program: Policy, Procedure, and Future, in Liber Amicorum 
113. My destroyer, U.S.S. Hyman, sailed these waters duringa 1960-61 Mediterranean Sea deployment; the territorial 
sea limit then was generally 3 miles, and we were close enough to Africa to have the Commanding Officer point out the 
sandy shores of World War II battles (Benghazi, Tobruk). 

255. Cable 152, 206, 209; Casper Weinberger, Fighting for Peace 124-25 (1990); D.R. Neutze, The GulfofSidra: 
A Legal Perspective, 108 Proceedings 26 (No. 1, 1982); W. Hays Parks, Crossing the Line, 112 id. 40 (No. 11, 1986); 
Robert E. Stumpf, Air War with Libya, id. 42 (No. 8, 1986). 

256. See nn. 112-15 and accompanying text. 

257. Combacau, n. 208, 15-16, 19. See nn. IV.360 and accompanying text for analysis of Fon in the Los context. 



World Public Order 207 



258. See generally Hayes, Navy Rules, n. 11.341; O'Connell, Influence oh Law 169-80; Duncan, n. 11.341; 
Grunawalt, TheJCS, n. 11.341; Roach, Rules of Engagement, n. 11.341; Shearer, Rules of Engagement, n. 11.341. See nn. II. 
341-49, 391, 452-53 and accompanying text for descriptions of Tanker War ROE. 

259. S.C. Res. 502, 505 (1982), in Wellens 594-95; see also Combacau, n. 208, 19, 35-36 n.48; James F. Gravelle, The 
Falklands (Malvinas) Islands: A n International Law A nalysis of the Dispute Between A rgentina and Great Britain, 1 07 MIL. 
L. Rev. 5 (1985);Walker, State Practice 153-55. An OAS resolution urged belligerents to cease hostilities within the 
region the Rio Treaty, n. 47, defines, and to refrain from any act that might affect inter- American peace and security. 
The OAS advocated a truce and peaceful settlement. OAS Resolution I, Serious Situation in the South Atlantic, Apr. 
28, 1982, OAS Doc. OEA/Ser.F/II.20, Doc. 28/82 rev. 3 (1982), in 21 ILM 669 (1982). The European Community 
suspended imports from Argentina. E.C. Council Regulation 877/82 Suspending Imports of All Products Originating 
in Argentina, Apr. 16, 1982 O.J. (L 102) 1, E.C.S.C. Council Decision 82/228/ECSC Suspending Imports of All 
Products Originating in Argentina, Apr. 16, 1982, in id. 547-48 (1982), extended May 18, 1982, id. at 549-50. The 
United States suspended military exports, security assistance and export credits to Argentina. Statement Concerning 
Assistance to and Sales to Argentina, id. 682-84. An OAS resolution took an anti-UK and US position on May 29, 1982. Id. 
672-74. The EC and US measures were rescinded in June and July 1982. Id. 1210. See also John Norton Moore, The 
Inter-American System Snarls in Falklands War, 76 AJIL 830 (1982), arguing the OAS action was ultra vires. For accounts 
of the war, see 3 Cordesman & Wagner 283-361; Harry D. Train III, -<4n Analysis of the Falkland/ Malvinas Islands 
Campaign, 41 NWC Rev. 33 (No. 1, 1988). 

260. 3 Cordesman & Wagner 242-44; Max Hastings & Simon Jenkins, The Battle for the Falklands 105, 119, 
124-25, 133, 143, 147, 157 (1983); Martin Middlebrook, Operation Corporate: The Falklands War 97-98, 126 
(1985). 

261. Hastings & Jenkins, n. 260, 147, 157; Middlebrook, n. 260, 151; Fenrick, The Exclusion, n. 11.109, 109-12; 
Howard S. Levie, The Falklands Crisis and the Laws of War, in Alberto R. Coll & Anthony C. Arend, The Falklands 
War: Lessons for Strategy, Diplomacy and International Law 64-65 (1988); Levie, Means and Methods of Combat 
at Sea, 14 Syracuse J. Int'l L. & Com. 727, 735-38 (1988); Vojtech Mastny, The Soviet Union and the Falklands War, 36 
NWC Rev. 46, 49 (No. 3, 1983). 

262. See Argentine Republic v. Amerada Hess Shipping Corp., 488 US 428, 431-33 (1989), rev'g 830 F.2d 421, 423 
(2d Cir. 1987); Sally V. Mallison & W. Thomas Mallison, Naval Targeting: Lawful Objects of Attack, in Robertson 241, 
269. 

263. 3 Cordesman & Wagner 260; 2 O'Connell, Law of the Sea 1112. 

264. 3 Cordesman & Wagner 250-51, 334, 336. 

265. S.C. Res. 549 (1983), in Wellens 451. 

266. See nn. 11.88, 200, 227, 298, 303-05, 344-49, 368, 370, 391-95, 410, 451, 469-70, 522 and accompanying text. 

267. UN Charter, arts. 25, 48, 51. S.C. Res. 598 (1987), in Wellens 454, invoked UN Charter, arts. 39-40 and called 
on parties to end the war; it was hortatory, not mandatory as a decision would have been. See also nn. II. 376-78, 405, 
414-18, 454, 479, 482, 489, III. 651-62 and accompanying text. 

268. See nn. 11.89, 102-03, 109-10, 141-42, 199-201, 240, 255, 288, 301, 411, 420, 447, 520 and accompanying text. 
For further analysis of these and other wartime zones, see Parts V.F, V.J.6. 

269. S.C. Res. 540, 552 (1984), in Wellens 451, 473; see also nn. 11.216-18, 251-59 and accompanying text; Chapter 
VI. 

270. Combacau, n. 208, 32. 

271. See nn. 160-63, 190-206 and accompanying text. 

272. S.C. Res. 661 (1990), in Wellens 528; see also Walker, Crisis Over Kuwait 30-34. 

273. UN Charter, art. 27; see also Goodrich et al. 227-29; Simma 463-67. 

274. See generally Goodrich et al. 2 1 5-3 1 . 

275. UN Charter, art. 2(1); see also n. 30 and accompanying text. 

276. UN Charter, arts. 33(1) 36-41; compare the effects of mandatory decisions under id., arts. 25, 48; see also 
nn. — and accompanying text. 

277. UN Charter, arts. 10-12, 14; see also n. 69 and accompanying text. 



208 The Tanker War 



278. UN Charter, art. 35(1), authorizing States to bring a dispute to the Assembly's attention, subject to id., art. 
12(l)'s primacy rule. The Assembly may also bring disputes to the Council's attention. Id., art. 11(3). See also 
Goodrich et al. 270-77; Simma 527-31. 

279. This occurred during the 1990-91 Gulf War. The Council had been seized of the crisis since the August 1990 
invasion. Cf S.C. Res. 660 (1990), in Wellens 527. The Assembly steering committee rejected Iraq's attempt to bring 
the matter before it in November 1990. Walker, Crisis Over Kuwait 34. 

280. See n. 69 and accompanying text. 

281. G. A. Res. 378, n. 20. 

282. G.A. Res. 380 (1950), in Key Resolutions, 10. 

283. Friendly Relations Declaration, 9 ILM 1292 (1970). 

284. Other aspects of the Declaration are in similar vein, e.g., "Nothing in the foregoing paragraphs [relating to 
nonintervention] shall be construed as affecting the relevant provisions of the Charter relating to the maintenance of 
international peace and security." States have a duty to "co-operate with other States in the maintenance of 
international peace and security." The Declaration elaborates on the territorial integrity and sovereign equality of 
States, closing by reciting a disclaimer, "Nothing in this Declaration shall be construed as prejudicing in any manner 
the provisions of the Charter or the rights and duties of [Members] under the Charter or the rights of peoples under the 
Charter taking into account the elaboration of these rights in this Declaration. . . . The principles of the Charter . . . 
embodied in this Declaration constitute basic principles of international law[.]" Id., 9 ILM 1295-97. 

285. See n. 281 and accompanying text. The Assembly has approved measures related to self-defense, e.g., its 1951 
call for embargo on war materials and petroleum shipped to the PRC during the Korean War, but there was no attempt 
to define, expand or limit the concept except by inference. Practice under this resolution, if the embargo had 
continued long enough, could have ripened into custom. Restatement (Third), §103 & cmt. c. On the embargo, see 
Howard J. Taubenfeld, International Actions and Neutrality, 47 AJIL 377, 393-94 (1953). 

286. Panel I, n. 11.84, 171 (Lagoni remarks), referring to G.A. Res. 2162 (1966), UN GAOR, 21 st Sess., UN Doc. 
A/6316 (1967). 

287. G.A. Res. 37/37 (1982), in 83 Bulletin 80 (Jan. 1983); see also Jeane J. Kirkpatrick, Call for Soviet Withdrawal 
from Afghanistan, id. 78. 

288. G.A. Res. 38/7 (1983), UN GAOR, 38 th Sess., Supp. No. 47, UN Doc. A/38/47 (1985;. The United States said 
this was a lawful action under UN Charter, art. 52. See John Norton Moore, Grenada and the International Double 
Standard, 78 AJIL 145, 154-59 (1984); see also Christopher C. Joyner, Reflections on the Lawfulness of Invasion, id. 131, 
135-37,142(1984). 

289. George K. Walker, Anticipatory Collective Self-Defense in the Charter Era: What the Treaties Have Said, Liber 
Amicorum ch. 15, 31 Cornell Intl L.J. 321 (1998) analyzes these developments. 

290. North Atlantic Treaty, n. 11.437, arts. 5-6, 63 Stat, at 2243-44, 34 UNTS at 246, as modified by Protocol, n. 
11.437, art. 2, 3 UST 44, 126 UNTS 350; see also n. 11.437 and accompanying text. 

291. See n. 11.437 and accompanying text. 

292. Security Treaty, Sept. 1, 1951, art. 4, 3 UST 3420, 3423, 131 UNTS 83, 86 (ANZUS Pact), Suspended for New 
Zealand Sept. 1, 1986; see also Jacob Bercovitch, ANZUS in Crisis (1988); Frank P. Donni, ANZUS in Revision 
(1991); Thomas Durrell- Young, Australian, New Zealand, and United States Security Relations, 1951-1986 
(1992); W. David McIntyre, Background of the ANZUS Pact, chs. 9-10 (1995); Michael C. Pugh, The ANZUS 
Crisis, Nuclear Visiting and Deterrence (1989); Trevor R. Reese, Australia, New Zealand and the United 
States: A Survey of International Relations, chs. 2, 4 (1969); J.G. Starke, The ANZUS Treaty Alliance (1965); 
TIF 350; W. Keith Jackson & James W. Lamare, The ANZUS Conflict and New Zealand Politics, in International 
Crisis and Domestic Politics 53 (Lamare ed. 1991); Jock Phillips, New Zealand and the ANZUS Alliance: Changing 
National Self-Perceptions, in Australia, New Zealand, and the United States: Internal Change and Alliance 
Relations in the ANZUS States 183 (Richard W. Baker ed. 1991); James N. Rosenau, Peripheral International 
Relationships in a More Benign World: Reflections on American Orientations Toward ANZUS, in id. 203. 

293. See nn. 11.52-54, 84, 127-29, 133, 135-39, 207, 220, 242-43, 249, 285, 287, 306, 315-16, 326-27, 330-31, 350, 362, 
374, 418-19, 427-28, 442, 475, 534-35 and accompanying text. 

294. Warsaw Pact, n. 47, arts. 3-4, 219 UNTS 28; see also Neil Fodor, The Warsaw Treaty Organization: A 
Political and Organizational Analysis (1990); J. P. Jain, Documentary Study of the Warsaw Pact 1-39 (1973); 
Mark Kramer, The Soviet Union and Eastern Europe: Spheres of Influence, in Ngaire Woods, Explaining International 



World Public Order 209 



Relations Since 1 945 ch. 5 ( 1 996). The Pact dissolved in 1 99 1 . Protocol, Mar. 3 1 , 1991 , in Bowman & Harris 1 96 ( 1 1 th 
Cum. Supp. 1995). 

295. See nn. 11.93-95, 184-85, 192-94, 248, 256, 283-84, 405, 478, 538 and accompanying text. 

296. Arab Joint Defence Treaty, n. 11.31, to be distinguished from the treaty establishing the Arab League, Pact of 
League of Arab League States, n. 11.31; see also n. 11.31 and accompanying text. 

297. See nn. 303-07 and accompanying text. 

298. Simma706. 

299. See nn. 308-36 and accompanying text. 

300. Bowett, Self-Defence 205. 

301. See Walker, Anticipatory, n. 289, Part III. 

302. McDougal & Feliciano 248-53, in effect adopting the second theory of Bowett, Self-Defence 202-05; id. 
205-07; Kelsen, The Law, n. 189, 792; and Stone 245 believed the right of collective self-defense did not extend to a 
State wishing to associate itself in defending a State already acting in self-defense. Bowett's first theory, that the right 
of collective self-defense is based on the right of a "protector" of a group, i.e., a family, perhaps family servants, was also 
rejected by him. Bowett 200-02. Nevertheless, the theme has been seen in UN practice where the "agency" principle 
has been used. Cf. Walker, Crisis Over Kuwait 49. 

303. Goodrich et al. 357. 

304. Id. 356; see, e.g., Russell & Muther, n. 13, 102-09, 229-34, 472-76, 555-56, 693-706. 

305. See nn. 11.21-27, 159-72, 187-88, 192, 208-09,218, 248, 251-59, 262-63, 290-94, 315, 330, 382,415,478, 508, 534, 
543-45 and accompanying text. 

306. See, e.g., nn. 11.382, 386 and accompanying text. 

307. See also n. 11.31 and accompanying text. 

308. Goodrich et al. 357, citing early UN General Assembly committee and plenary session meetings. 

309. E.g., Rio Treaty, n. 47, art. 3, 62 Stat, at 1700, 21 UNTS 95; WEU Treaty, n. 11.388, art. 4, 19 UNTS 57, as 
modified by WEU Protocol I, n. 11.437, art. 3, 211 id. 346; North Atlantic Treaty, n. 11.437, art. 5, 63 Stat. 2249, 34 
UNTS 246; Arab Joint Defence Treaty, n. II. 31, art. 2, 1 57 BFSP 669-70, 49 AJIL Supp. 51 (1955); ANZUS Pact,n. 292, 
art. 4, 3 UST at 3423, 131 UNTS 86 (no explicit statement, see also sources n. 292); Southeast Asia Collective Defense 
Treaty, with Protocol, Sept. 8, 1954, art. 4, 6 UST 81, 83, 209 UNTS 28, 30 (SEATO Treaty); Warsaw Pact, n. 47, art. 4, 
219 UNTS 30, abrogated by Protocol, Mar. 31, 1991, Bowman & Harris 196 (1 1th Cum. Supp. 1995). The Arab Joint 
Defence Treaty, nominally covering the Gulf area, was never invoked because of internal dissension and perhaps 
other reasons. See nn. H.93-99, 184-85, 192-93, 248-58, 283-84, 405, 477, 538 and accompanying text. The Seato Treaty 
was defunct by 1980, as was Pact for Mutual Co-operation, Feb. 24, 1955, 233 UNTS 199 (Baghdad Pact). Iraq 
withdrew from the Pact before 1980. Leszek Buszynski, Seato: The Failure of an Alliance Strategy chs. 1-2 
(1983); Royal Institute of International Affairs, The Baghdad Pact: Origins and Political Setting (Feb. 
1956); Starke, n. 292, 221-26; George Modelski, SEATO; Its Function and Organization, in Modelski, Seato: Six 
Studies 8-45 (1964); Brian Holden Reid, The "Northern Tier" and the Baghdad Pact, in The Foreign Policy of 
Churchill's Peacetime Administration 1951-55, at 159-74 (John W. Young ed. 1988); Margaret Muryani 
Manchester, The Tangled Web: The Baghdad Pact, Eisenhower, and Arab Nationalism chs. 1-3 (1994) (unpublished 
Ph.D. dissertation, Clark University) (on file, Naval War College Library). 

310. See nn. 220-22, 281-84 and accompanying text. 

311. UN Charter, arts. 10-12, 14; see also n. 69 and accompanying text. 

312. See nn. 284-85 and accompanying text. 

313. Mutual Defense Treaty, Oct. 1, 1953, Repub. of Korea-US, 5 UST 2368, 238 UNTS 199; Mutual Defense 
Treaty, Dec. 2, 1954, Repub. of China-US, with US reservations, 6 id. 433, 248 UNTS 213, which the United States 
denounced in 1979 when the PRC was recognized. See generally Goldwater v. Carter, 444 US 996 (1979); J.A.S. 
Grenville & Bernard Wasserstein, The Major International Treaties Since 1945, at 109-13 (1987). 

314. Starke, n. 292, 98-99; see also nn. 292, 309 and accompanying text. 

315. See nn. 802-20 and accompanying text. 

316. Proclamation No. 3504, 3 CFR 232 (1959-63), referring to S.J. Res. 230, Pub. L. No. 87-733, 76 Stat. 697; 
October 23, 1962 resolution passed under Rio Treaty, n. 47, arts. 6, 8, 62 Stat. 1701, 21 UNTS 97, 99. See also Abram 



210 The Tanker War 



Chayes, The Cuban Missile Crisis (1974); Robert W. Divine, The Cuban Missile Crisis (197 1); Louis Henkin, How 
Nations Behave 279-306 (1979); Robert Kennedy, Thirteen Days: A Memoir of the Cuban Missile Crisis (1969); 
10 Whiteman 8-20, 874; Chayes, Law and the Quarantine of Cuba, 41 Foreign Aff. 550 (1963); Carl Q. Christol & C.R. 
Davis, Maritime Quarantine: The Naval Interdiction of Offensive Weapons and Associated Material to Cuba, 1962, 56 AJIL 
525, 527 (1963); W. Thomas Mallison, Limited Naval Blockade or Quarantine-Interdiction: National and Collective 
Defense Claims Valid Under International Law, 31 Geo. Wash. L. Rev. 355, 387-88 (1962); W. Thomas Mallison & Sally 
V. Mallison, A Survey of the International Law of Blockade, 102 Proceedings 44, 49-50 (No. 2, 1976); Brunson 
MacChesney, Some Comments on the "Quarantine" of Cuba, 57 AJIL 592, 593 (1963); Joseph B. McDevitt, The UN 
Charter and the Cuban Quarantine, 17 JAG J. 71 (1963); Myres S. McDougal, The Soviet-Cuban Quarantine and 
Self-Defense, 57 AJIL 557 (1963); McNeill, Neutral Rights, n. II. 354, at 633: John A. Meeker, Defensive Quarantine and 
the Law, 57 AJIL 515 (1963); William O. Miller , Collective Intervention and the Law of the Charter, NWC Rev. 71 (Apr. 
1970); Miller, Lawof Naval Warfare, id. 35 (Feb. 1972); Covey C. Oliver, International Law and the Quarantine of Cuba: 
Hopeful Prescription for Legal Writing, 57 AJIL 373 (1963); Walker, State Practice 141-42; Quincy Wright, The Cuban 
Quarantine, 57 AJIL 546, 554-56 (1963). 

317. E.g., McDougal, The Sovwt-Cuban, n. 316. 

318. A. V. Lowe, The Commander's Handbook on the Law of Naval Operations and the Contemporary Law of the Sea, in 
Robertson 109, 128, 137. 

319. See nn. 233-34 and accompanying text. 

320. North Vietnam and some commentators maintained the conflict was a civil war. See generally Stanley 
Karnow, Vietnam: A History (1983); Henkin, How, n. 316, 303-12; Richard R. Baxter,Jui in Bello Interno: The 
Present and Future Law, in Law and Civil War in the Modern World 518 (John Norton Moore ed. 1974); Office of 
Legal Adviser, US Department of State, The Legality of United States Participation in the Defense of Vietnam, in 1 The 
Vietnam War and International Law 583 (Richard A. Falk ed. 1968). 

321. Republic of Viet-Nam, Decree on Sea Surveillance, Apr. 27, 1965, 4 ILM 461 (1965), published the original 
Market Time defense zone. 2 Edward J. Marolda & Oscar P. Fitzgerald, The United States Navy and the 
Vietnam Conflict 518 (1986); 2 O'Connell, Law of the Sea 1097-99, 1122-23; O'Connell, The Influence 176-77, 
325; Fenrick, Legal Aspects, n.II 501,256; Fenrick, Military Objective, n. 11.202, 18; James A. Hodgman, Market Time in 
the Gulf of Thailand, in Frank Uhlig, Vietnam: The Naval Story 308 (1986); R.L. Schreadly, The Naval War in 
Vietnam, 1950-1970, in id. 274, 280-7. RVN and US naval forces interdicted southbound North Vietnamese military 
traffic; the RVN also operated a Junk Force, not part of its navy, to assist the operation. The Force performed other 
military tasks and in 1965 was incorporated into the RVN navy. 2 Marolda & Fitzgerald 118-20, 228-30, 309. 

322. In 1965 the US Joint Chiefs of Staff had considered and rejected a blockade of North Vietnam as being a 
belligerent act. 2 Marolda & Fitzgerald, n. 321, 1 18-20; Bruce A. Clark, Recent Evolutionary Trends Concerning Naval 
Interdiction of Seaborne Commerce as a Viable Sanctioning Device, 27 JAG J. 160 (1973); Ulrik Luckow, Victory Over 
Ignorance and Fear: The U.S. Minelaying Attack on North Vietnam, 35 NWC Rev. 17 (No. 1, 1982); Frank B. Swayze, 
Traditional Principles of Blockade in Modern Practice: United States Mining of Internal and Territorial Waters of North 
Vietnam, 29 JAG J. 143 (1977). 

323. 2 Marolda & Fitzgerald, n. 321, 320-25; 18 Keesing 25338 (1972). 

324. Lane C. Kendall, US. Merchant Shipping and Vietnam, in Uhlig, n. 321, 482, 491, 499-500. 

325. O'Connell, The Influence 110; Fenrick, Military Objective, n. 11.202, 256. 

326. Bowman & Harris 196; Buszynski, n. 309, ch. 6. 

327. See,e.g., nn. II. 81,95, 112-40, 159-71, 182, 194-98,242-47,249,263,267-68,284-87,294,319-20,419-20,475-78 
and accompanying text. 

328. This war was not the only example of unilateral or multilateral assistance without a formal defense treaty. E.g., 
there was unilateral US aid to Israel and other countries' assistance to Arab States during the Arab-Israeli wars. See nn. 
249, 253, 259 and accompanying text. 

329. See nn. 828-89 and accompanying text. 

330. See nn. 11.21-27, 60, 84, 93-94, 157, 159-72, 186-88, 192, 208-09, 218, 248, 251-60, 262-63, 271, 283-84, 290-94, 
315, 321, 330, 375, 378, 382, 405, 415, 437, 477-79, 508, 534, 538, 541-45 and accompanying text. 

331. See n. 11.456 and accompanying text. 

332. See nn. 11.447, 470 and accompanying text. 

333. Simma 706; see also nn. 11.167, 415 and accompanying text. 



World Public Order 211 



334. See, e.g., nn. 11.112-14, 313, 475-76 and accompanying text. 

335. See, e.g., nn. 11.83, 124, 126-28, 196-98, 242-47, 285-87, 316-20, 418-19; See also House Select Committee to 
Investigate Covert Arms Transactions with Iran and Saudi Arabia, H.R. Rep. No. 433, 100th Cong., 1st Sess. (1987); 
Senate Select Committee on Secret Military Assistance to Iran and the Nicaraguan Opposition, S. Rep. No. 216 (1987); 
Report of the President's Special Review Board (Tower Commission Report) (1987). 

336. See nn. 11.269, 360, and accompanying text. 

337. See nn. 308-28 and accompanying text. 

338. See generally Walker, Crisis Over Kuwait (agreements negotiated by US Secretary of Defense Dick Cheney, 
later Security Council resolutions). 

339. UN Charter, arts. 25, 48, 51, 103; see also nn. 10, 350-56, 652-62 and accompanying text. 

340. See generally San Remo Manual 68; Walker, Maritime Neutrality 142-48. 

341. E.g., NWP 1-14M Annotated n 7.1-7.2.2; NWP 9A Annotated Ml 7.1-7.2.2 (US position). 

342. See n. 259 and accompanying text. 

343. See generally Walker, Anticipatory, n. 289. 

344. See generally id., Parts I-III for examples uncovered in research on treaties from 1815-1945. 

345. E.g., Cable reports hundreds of maritime incidents since 1914; the actors most assuredly had other nations' 
informal backing in some of these. The historical record, 1815-1914, must have more. Many are shrouded in 
diplomatic reports, e.g., FRUS, or in detailed historical accounts; other recent examples probably are unpublished due 
to national security considerations. 

346. While the Covenant of the League of Nations, art. 18, required League Members to submit all agreements for 
publication, this requirement was soon ignored. Ferrell, n. 163,54-61. Countries, e.g. the United States, not League 
Members, were under no international obligation to submit treaties for League publication or to publish them in 
national series, although, e.g., the United States did publish most of its international agreements in the Statutes at 
Large or the Executive Agreement Series. Most League Members did, but there were exceptions, particularly as war 
clouds loomed in the late Thirties, and the League collapsed. See Walker, Anticipatory, n. 289, Part II. UN Charter, art. 
102 admonishes Members to submit treaties for registration; a consequence for nonfulfilment is that an unregistered 
treaty cannot be invoked before a UN organ, e.g., the Security Council or the ICJ. See Goodrich et al. 610-14; Simma 
1103-16. Security agreements are often not published. Restatement (Third) § 312 r.n.5 (1987). See also 1 USC § 
1 12a(b) (1994). National legislation may require publication of agreements or notifying the national legislature of all 
international agreements. See e.g., id § 112b (1994). 

347. Before the coming of the Covenant, treaties were often not published. Even so, their terms were leaked as an 
"engine . . . of publicity." A.J. P. Taylor, The Struggle for Mastery in Europe: 1848-1918, at 264 (1954). Many but 
not all agreements between 1648 and 1920 have been reprinted in the Consolidated Treaty Series. Walker, 
Anticipatory, n. 289, Part I reports some of the few omissions. 

348. Governments publish NOTMARs and NOTAMs for many purposes, including routine warnings of 
navigation hazards, e.g., floating derelicts, extinguished navigation aids, ere, besides warnings of high seas military 
exercises; war, exclusion or defense zones; warnings of other countries' proclamations of zones; or self-defense actions 
that might be taken upon approach of aircraft or ships, as the United States and other nations published them during 
the Tanker War. See nn. 11.89-90, 101, 141-42, 176, 224, 288, 305, 311, 346-48, 420, and accompanying text. 

349. See n. 348 and accompanying text. 

350. UN Charter, art. 51; see also Simma 676-77. 

351. Nicaragua Case, 1986 ICJ at 105, 121. 

352. Id. at 96-99. 

353. UN Charter, art. 51. 

354. See nn. 308-22 and accompanying text. 

355. Combacau, n. 208, 15-16. 

356. Higgins, The Development, n. 56, 207. 

357. United States v. Araki, Judgment of Int'l Mil. Trib. for the Far East (Nov. 4-12, 1948), in 1 The Tokyo 
Judgment: The International Military Tribunal for the Far East (I.M.T.F.E.) 29 April 1946-12 November 1948, at 382 



212 The Tanker War 



(B.V.A. Roling & C.F. Ruter eds. 1977); Nuremberg Judgment, 1 Tr. Maj. War Crim. Before Int'l Mil. Trib. 208, 
218-22, 41 AJIL 205, 207 (1947), citing US Secretary of State Daniel Webster letter to UK Ambassador Lord 
Alexander B. Ashburton, Aug. 6, 1 842, 2 Moore 41 1- 1 2; Webster letter to UK Minister Henry S. Fox, Apr. 24, 1843, in 
The Papers of Daniel Webster: Diplomatic Papers 58, 67 (Kenneth E. Shewmaker ed. 1983) (Caroline Case); see also 
R.Y. Jennings, The Caroline and McLeod Cases, 32 AJIL 82 (1938); Walker, A nticipatory, n. 289, Liber Amicorum 
385-86, 31 Cornell Int'l L.J. 357-59. Treaties negotiated from 1815 through 1945 had recognized a right of 
anticipatory self-defense. See id. 366-81, 31 Cornell Int'l L.J. 325-51. 

358. Compare, e.g., Nicaragua Case, 1986 ICJ 347 (Schwebel, J., dissenting); Alexandrov 296; Bowett, 
Self-Defence 187-93; Broms, The Definition, n. 112, 127; Hans Kelsen, Collective Security Under 
International Law 27 (Nav. War C. Int'l L. Stud., v. 49, 1957); McCormack, n. 209, 122-24, 238-39, 253-84, 302; 
McDougal & Feliciano 232-41 ; 1 Oppenheim § 127; Oscar Schachter, International Law in Theory and Practice 
152-55 (1991); Julius Stone, of Law and Nations: Between Power Politics and Hopes 3 (1974); Thomas & Thomas, 
The Concept, n. 120, 61-65; George Bunn, International Law and the Use of Force in Peacetime: Do U.S. Ships Have to 
Take the First Hit?, 39 NWC Rev. 69-70 (May-June 1986); Christopher Greenwood, Remarks, in Panel I, n. 11.84, at 
160-61; Linnan, Self-Defense, n. 51, 65-84; Lowe, The Commander's, n. 318, 127-30; James McHugh, Forcible Self-Help 
in International Law, 25 NWC Rev. 61 (No. 2, 1972); Rein Mullerson & David J. Schefter, Legal Regulation of the Use of 
Force, in Beyond Confrontation: International Law for the Post-Cold War Era 93, 109-14 (Lori Fisler 
Damrosch et al. ed. 1995); John F. Murphy, Commentary on Intervention to Combat Terrorism and Drug Trafficking, in 
Lori Fisler Damrosch & David J. Scheffer, Law and Force in the New International Order 241 (1991); W. 
Michael Reisman,/4 llocatmg Competences to Use Coercion in the Post-Cold War World: Practices, Conditions, and Prospects, 
in id. 25, 45; Horace B. Robertson, Jr., Contemporary International Law: Relevant to Today's World?, 45 NWC Rev. 89, 101 
(Summerl992); Robert F. Turner, State Sovereignty, International Law, and the UseofForcein Countering Low-Intensity 
Aggression in the Modern World, in Legal and Moral Constraints on Low-Intensity Conflict 43, 62-80 (Nav. War 
C. Int'l L. Stud., v. 67, Alberto Coll et al. ed. 1995); Waldock, The Regulation, n. 52, 496-99 (anticipatory self-defense 
permissible as long as principles of necessity observed); Walker, Anticipatory, n. 289 (anticipatory collective 
self-defense), with, e.g., Brownlie, Use of Force 257-61, 275-78, 366-67; Dinstein 182-89 (no right of anticipatory 
self-defense under UN Charter, art. 51, but there may be a right under customary international law); Henkin, 
International Law, n. 165, 121-22; Jessup, A Modern Law, n. 54, 166-67; O'Connell, The Influence 83, 171; 
RiFAAT,n. 23, 126; Simma 675-76; Tom Farer, Law and War, in 3 Cyril E. Black & Richard A. Falk, The Future of 
the International Legal Order 30, 36-37(1971); YuriM. Kolosov, Limiting the Useof Force: Self-Defense, Terrorism 
and Drug Trafficking, in Beyond Confrontation 233, 235; Kunz, Individual, n. 189, 878; Rainer Lagoni, Remarks, in 
Panel, n. 11.84, 162; Tucker, The Interpretation, n. 189, 29-30; see also Tucker, Reprisals and Self-Defense, 66 AJIL 586 
(1972) (States may respond only after being attacked). Dinstein 184-90 says a right of "interceptive" self-defense 
exists; see nn. 374-377 and accompanying text. 

359. E.g., the United States claims a right of anticipatory self-defense. NWP 1-14M Annotated HH 4.3.2-4.3.2.1; 
NWP 9A Annotated HH 4.3.2.-4.3.2.1. Iran recognized a right of reactive self-defense during the Tanker War; this was 
the USSR view. See n. 11.370 and accompanying text; Kolosov, Limiting, n. 358, 234. 

360. Compare, e.g., Alexandrov 296 (although anticipatory self-defense appropriate, Israel could not claim it in 
Iraqi nuclear reactor raid) with McCormack, n. 209, 1 22-44, 238-39, 253-84, 302 (anticipatory self-defense appropriate, 
Israel rightly claimed it for raid). 

361. Compare, e.g., Israel's claim of a right of anticipatory self-defense for the raid, Alexandrov 296; McCormack, 
n. 209, 122-44, 238-39, 253-84, 302, with S.C. Res. 487 (1981),m Wellens441-42, adopted unanimously, i.e., including 
the United States. Cf UN Charter, arts. 23(1), 27. The United States adheres to a right of anticipatory self-defense. 
NWP 1-14M Annotated 1H1 4.3.2-4.3.2.1; NWP 9A Annotated 1111 4.3.2-4.3.2.1; see also n. 359 and accompanying text. 
The US vote to condemn Israel meant that although anticipatory self-defense was a legitimate response, the Israeli 
action was not an appropriate exercise of that right under the circumstances. 

362. UN Charter, art. 51; see also nn. 158-206 and accompanying text. 

363. The parties declared it was not an issue. Nicaragua Case, 1986 ICJ 103. 

364. Compare, e.g., 1 D.P. O'Connell, International Law 25 (1970) (favoring anticipatory self-defense) with 
O'Connell, The Influence 83, 171 (then-current naval thinking was leaning toward the reactive view). Compare 
Kelsen, Collective, n. 358, 27 (anticipatory self-defense permitted), with Kelsen, The Law, n. 189, 791-93 (only 
reactive self-defense permitted). 

365. Cf, e.g., Goodrich et al. 342-53; Addendum to the Eighth Report on State Responsibility, 1980 2(1) Y.B. Int'l L. 
Comm'n 13, 66-70, UN Doc. A/CN.4P318/ADD.5-7. McCormack, n. 209, 122, says Goodrich etal. are among those 
with a reactive view because of a statement in id. 353, but reading id. 342-53 for UN Charter, art. 51, seems to have id. 
straddling the fence. San Remo Manual H 3, Commentary 3.2 says the Manual takes no position. 



World Public Order 213 



366. Bowett, Self-Defence 187, citing UN Doc. AEC/18/Rev. 1, at 24 (1946). 

367. Bowett, Self-Defence 187, citing General Assembly debates. 

368. Id. 

369. Definition of Aggression, arts. 3(c), 3(e), 13 ILM 713. 

370. Id., art. 4, 13 ILM 714; see also nn. 98-152 and accompanying text for further analysis of the Resolution. 

371. See nn. 80-86 and accompanying text. 

372. Dinstein 130 says all of Definition of Aggression, art. 3, 13 ILM 713, may be custom, and this would include 
blockade. Not all would go so far. See n. 102 and accompanying text. Many have considered blockading coasts as 
aggression in the League and Charter eras. Treaties listing acts of aggression include blockade. See, e.g., Convention 
for Definition of Aggression, July 3, 1933, art. 2(4), 147 LNTS 67, 256-57; Convention for Definition of Aggression, 
July 4, 1933, art. 2(4), 148 id. 211, 215; Balkan Entente, Feb. 9, 1934, Protocol-Annex, 153 id. 153, 157; Convention for 
Definition of Aggression, July 5, 1933, Lith.-USSR, art. 2(4), id. 79, 83; Saadabad Pact, July 8, 1937,art. 4, 190 id. 21, 25. 
UN Charter, art. 42, lists blockade as an option the Security Council may choose if nonforce alternatives are 
inadequate, an inference being that blockade is not open to UN Members unless in self-defense or with Council 
approval. Blockade was consistently in the USSR drafts enumerating acts of aggression. Julius Stone, Aggression 
and World Order 34-35, 46-77 (1958); Stone, Conflict, n. 23, chs. 2-3. 

373. See nn. 358-361 and accompanying text. 

374. Dinstein 190, citing Joyner & Grimaldi, n. 1 1, 659-60. 

375. Dinstein 190. 

376. Id. 190-91. Stone, Conflict, n. 23, 58, 199 n.3; Rosalyn Higgins, The Attitude of Western States Toward Legal 
Aspects of the Use of Force, in Cassesse, n. 208, 435, 443, characterize Israel's action as anticipatory self-defense. 

377. Dinstein 191; see also Ben Cheng, General Principles of Law as Applied by International Courts and 
Tribunals 90 (1983); nn. 617-30 and accompanying text. 

378. Compare S.C. Res. 487 (1981), in Wellens 441, with Dinstein 47, 186-87. 

379. See also nn. 242-43 and accompanying text. 

380. See n. 243 and accompanying text. 

381. See nn. 243, 248 and accompanying text. 

382. See nn. 259-64 and accompanying text. 

383. See nn. 11.338-41 and accompanying text. 

384. The same is true for some missile attacks. Eilat sank after two waves of them, and Stark survived two Exocet 
missiles; Sheffield may have been lost more due to her construction than the missiles. See nn. 11.338-42, III. 243, 259-64. 

385. Cf Philip C. Jessup, Should International Law Recognize an Intermediate Status Between Peace and War?, 48 
AJIL 98 (1954); Myres S. McDougal, Peace and War: Factual Continuum with Multiple Legal Consequences, 49 id. 63 
(1955); see also James Russell Lowell, The Present Crisis (1844), in 1 James Russell Lowell, Poetical Works 185, 190 
(1890). 

386. Horace B. Robertson, Modern Technology and the Law of Armed Conflict at Sea, in Robertson 362; Robertson, 
New Technologies and Armed Conflicts at Sea, 14 Syracuse J. Int'L L. 699 (1988) argues persuasively that it is futile to 
legislate weapons control through treaties because treaties will nearly always be irrelevant before the ink is dry. 

387. Custom, although perhaps uncertain in parameters, has inherent flexibility and is likely to be a dominant 
future source of law. W. Michael Reisman, The Cult of Custom in the Late 20th Century, 17 Cal. W. Int'l L.J. 133 (1987); 
see also TheodorMeron, Human Rights and Humanitarian Norms as Customary Law 3-10 (1989). The law of naval 
warfare is mostly custom-based. San Remo Manual 61-62. Moreover, custom is not subject to treaty rules of 
construction, e.g., breach, fundamental change of circumstances, impossibility, etc. See nn. 927-29 and accompanying 
text. 

388. See nn. 357-65 and accompanying text. 

389. Id. 

390. See nn. 485-96, 521-28 and accompanying text. 



214 The Tanker War 



391. US UN Acting Permanent Representative Herbert S. Okun letter to President of UN Security Council, Apr. 
14, 1986, UN Doc S/18016/Rev. 1 (1986), quoted in 80 AJIL 632 (1986); Feature: U.S. Exercises Right of Self Defense 
Against Libyan Terrorism, 86 Bulletin 1-23 (June 1986); Geoffrey M. Levitt, Intervention to Combat Terrorism and Drug 
Trafficking, in Damrosch & Scheffer, n. 358, 224, 226-27, 230. Commentators differed on the legality of the strikes, as 
they had on the Vietnam War. Mullerson & Scheffer, nn. 358, 99. 

392. Although specific events are cited, refer to Part II. B for the full factual context. 

393. See n. 11.88 and accompanying text. 

394. S.C. Res. 479 (1980), in Wellens 449; see also n. 11.96 and accompanying text. 

395. UN Charter, arts. 25, 48; see also n. 652 and accompanying text. 

396. For analysis of war zones, defensive sea zones and similar ocean areas in terms of area, duration, notice, etc., see 
Part V.F; see also nn. 11.89, 103-04, 109-10, 141-42, 199-201, 240, 255, 288, 301, 411, 420, 447, 520 and accompanying 
text. 

397. LOS Convention, art. 2; Territorial Sea Convention, art. 1; see also Parts IV.B.4 and V.D.3 for analysis in the 
LOS context. 

398. See n. 309 and accompanying text. 

399. See nn. 11.21-27 and accompanying text. 

400. See nn. 11.31, III. 309 and accompanying text. 

401. Arab Joint Defence Treaty, n. 11.31, art. 2, 157 BFSP 669-70, 49 AJIL Supp. 51; see also nn. 309, 400 and 
accompanying text. 

402. UN Charter, arts. 2(4), 5 1 ; Definition of Aggression, art. 3(0, 1 3 ILM 714; nn. 50- 1 57 and accompanying text. 

403. See nn. 591-616 and accompanying text. 

404. See nn. 485-585 and accompanying text. 

405. Id. 

406. See nn. 11.21-27, 84, 159-72, 186-87, 192, 208-09, 218, 248, 251-59, 262-63, 290-94, 315, 330, 415, 478, 508, 532, 
543-45 and accompanying text. 

407. See nn. 308-36 and accompanying text. 

408. See n. II. 80 and accompanying text. 

409. See nn. 308-36 and accompanying text. 

410. See nn. 11.103, 201 and accompanying text. 

411. Definition of Aggression, art. 3(d), 13 ILM 713; see also nn. 98-152 and accompanying text. 

412. Definition of Aggression, art. 4, 13 ILM 714; see also nn. 103, 116, 120 and accompanying text. 

413. See Parts V.C.3, V.C.5, V.J.3. 

414. Iraq's navy was bottled up in the Shatt al-Arab for the duration of the war; her new frigates sat out the war in 
Italy, where they had been built. See n. 11.130 and accompanying text. Iraq could not conduct traditional maritime 
visit and search operations. Iran had a navy that was significant in size for Gulf operations. Both belligerents had 
land-based air attack capability. 

415. See n. 11.177 and accompanying text. 

416. See n. 11.177 and accompanying text. 

417. See Parts V.B.-V.D and V.J.2-4. 

418. UN Charter, art. 103; S.C. Res. 514, 522 (1982), 540 (1983), in Wellens 450-51; see also nn. 11.189, 216-17, III. 
10 and accompanying text. 

419. UN Charter, arts. 51, 103; S.C. Res. 479 (1980), 552 (1984), 582, 588 (1986), 598 (1987), 612, 619-20 (1988), 631, 
642 (1989), 651, 671, 676 (1990), 685 (1991), in Wellens 449-50, 452-60, 473-74; see also nn. 11.96, 258, 300, 308, 377, 
455, 486, 487, III. 10 and accompanying text. 

420. The United States published the warnings within days after releasing its report on the US Marine 
headquarters building bombing at Beiruit International Airport in 1983. See nn. 11.224-27 and accompanying text. 



World Public Order 215 



421. See n. 11.229 and accompanying text. The United Kingdom had declared a similar defensive bubble during 
the Falklands/Malvinas War. See nn. 259-64 and accompanying text. 

422. UN Charter, arts. 51, 103; see nn. 10, 158-288 and accompanying text. 

423. See Parts V.F.l.b-V.F.l.c, V.F.5, V.J.6. 

424. See n. 11.360 and accompanying text. 

425. See nn. 11.295, 361 and accompanying text. 

426. See n. 11.298 and accompanying text. 

427. See nn. II. 296-97 and accompanying text. 

428. See n. 11.299 and accompanying text. 

429. See n. 11.306 and accompanying text. 

430. This was the UK and apparently the French view. Other States, including the United States, saw the Tanker 
War as a traditional war, to which LOAC principles applied. See n. 11.84 and accompanying text. 

431. UN Charter, art. 103; see also n. 10 and accompanying text. 

432. Nyon Arrangement, H1I 1,4-7, and Nyon Supplementary Agreement, 1111 2-3, which also addressed attacks on 
merchantmen by submarines and surface ships, applied only to the Mediterranean Sea during the Spanish Civil War. 
The Nyon treaties permitted attacks on ships that attacked or might attack neutral merchant vessels and said nothing 
about the attacking ship's duties, referring to the London Protocol for standards. To that extent the Nyon treaties 
might be said to repeat whatever customary norms are in the London Protocol. 

433. London Protocol, art. 22; see also Parts V.C.I, V.C.5, V.J. 3 for analysis of the Protocol in the law of naval 
warfare context. 

434. TIF 429-30; Schindler & Toman 885. 

435. Turkey acceded to the Protocol in 1937, Schindler & Toman 885, long after the predecessor State, the 
Ottoman Empire, had been stripped of its Gulf territories through the League of Nations mandate system. The law of 
treaty succession could not apply to the GCC States; when Turkey became a Protocol party, these countries were not 
part of Turkey. 

436. UN Charter, art. 103; see also n. 10 and accompanying text. 

437. See n. 205 and accompanying text. 

438. The San Remo Manual does not consider the Charter supremacy issue, noting some participants challenged a 
view that the Charter applies during armed conflict, arguing that/ws adbellum rules apply only until outbreak of an 
armed conflict. "Once a State became engaged in armed conflict, it was argued, that State was subject only to the 
[LOAC] This is because the [LOAC] contains its own principles of necessity and proportionality," citing NWP 9 A, 
Annotated H 5.2. San Remo Manual 11 4, Commentary 4.3. All Manual participants accepted that "the fact that an act 
may be a necessary and proportionate measure . . . cannot justify it if it involves a violation of the laws of armed 
conflict.''/^. U 4, Commentaries 4.2(b), 4.3. If this means a Charter-based norm can be superseded by a norm based on a 
treaty governing the LOAC, however laudatory and beneficial to humanitarian standards the intention might be, the 
Commentary appears not to have taken UN Charter, art. 103 into account. If San Remo Manual, 11 4, Commentaries 
4.2(b), 4.3 mean the LOAC recited in treaties should be the same as a norm developed under UN Charter, art. 5 1, much 
as necessity and proportionality are customary limitations on the inherent right of self-defense, nn. 485-585 and 
accompanying text, the Manual is correct on the point. Whether the Charter as a treaty can supersede custom is 
debatable, and to that extent the ManualIs also correct. See n. 10 and accompanying text. If, on the other hand, Article 
51 restates a jus cogens norm, n. 205 and accompanying text, then LOAC norms can inform but cannot supersede it. See 
n. 10 and accompanying text. 

439. Commentators continue to debate the point. Compare, e.g., Mallison 106-23 (Protocol still a valid principle); 
Dieter Fleck, Comments on Howard S. Levie's Paper: Submarine Warfare: With Emphasis on the 1936 London Protocol, in 
Grunawalt 78, 83-84 (same); Howard S. Levie, Submarine Warfare: With Emphasis on the 1 936 London Protocol, in id. 28, 
59 (same, but States will find reasons to justify noncompliance); Sally V. Mallison & W. Thomas Mallison, The Naval 
Practices of Belligerents in World War II: Legal Criteria and Developments, in id. 87, 99-102 (Protocol still valid law, 
enhanced by Fourth Convention, art. 18[1] duty to search for survivors after battle at sea); Edwin I. Nowogugu, 
Commentary, in Law of Naval Warfare 353, 363-64 (Protocol still valid law); Horace B. Robertson, Jr., U.S. Policy on 
Targeting Enemy Merchant Shipping: Bridging the Gap Between Conventional Law and Practice, in Grunawalt 338, 343, 
352-53 (same, but inapplicable in most circumstances) with, e.g., Stone (Protocol violated in World War II, apparently 



216 The Tanker War 



no longer the law); Tucker 63-73 (same); W.J. Fenrick, Comments on Sally V. and W. Thomas Mallison's Paper: The 
Naval Practices of Belligerents in World War II: Legal Criteria and Developments, in Grunawalt 110, 116-18 (Protocol 
unworkable but should be incorporated in new principle of allowing attacks on neutral merchantmen if part of enemy 
war effort); Alex Kerr, International Law and the Future of Submarine Warfare, 81 Proceedings 1110 (Oct. 1955) 
(Protocol defunct); O'Connell, International Law, n. 252, 52 (Protocol no longer effective); James Service, Targeting 
Realities: Platforms, Weapons Systems and Capabilities, in Grunawalt 231, 238-40 (modern weapons systems make literal 
Protocol compliance unworkable; if observed, Protocol would in effect prolong a war). NWP 9A Annotated H 8.2.2.2, 
at 8-10, 8-12 says the Protocol continues to apply to surface ships but must be interpreted in light of current 
technology, and enemy merchantmen may be attacked and destroyed with or without warning if "integrated into the 
enemy's war-fighting/war-sustaining effort and compliance with the . . . Protocol would, under the circumstances . . . , 
subject the surface warship to imminent danger or otherwise preclude mission accomplishment." Id. H 8.3.1 applies 
these principles to submarine attacks, but id. H 8.4 does not as to air attacks. Id. 1111 7.5. 1 -7.5.2 say neutral ships acquire 
enemy character if they take direct part in hostilities on an enemy's side or operate directly under enemy control, 
orders, charter, employment or direction. See also NWP 1-14M Annotated HH 7.5. 1-7. 5. 2, 8.2. 2.2, 8.3. 1,8.4; Parts V.D, 
V.J.4. 

440. See Nicaragua Case, 1986 1CJ at 92-93. UN Charter, art. 2(6) requires the United Nations to "ensure that 
states . . . not Members ... act in accordance with [the] Principles [of the Charter] so far as may be necessary for the 
maintenance of international peace and security." Although the Security Council and the General Assembly have not 
referred to Article 2(6), their resolutions have declared law applicable to all States. Most commentators say Article 2(6) 
does not bind non-Members to Charter law. Vienna Convention, art. 38; Goodrich ef al. 58-60; Simma 134-39; contra, 
Kelsen, The Law, n. 189, 107. Article 2(6) is almost a dead letter today, since nearly all countries, Switzerland being a 
notable exception, are UN Members. However, the Nicaragua Case recognition of the possibility of an independent, 
parallel custom means that, unless Article 51 is given jus cogens status, there may be a different customary norm 
competing with, and perhaps offsetting, the Charter-based norm. If the independent norm has jus cogens status, it may 
negate the Charter norm. See n. 10 and accompanying text. 

441. San Remo Manual HH 60(g), 67(f); compare NWP 1-14M Annotated HH 8.2.2.2, at 8-10, 8-12; NWP 9A 
AnnotatedHH 8.2.2.2, at 8-10, 8-12. 

442. San Remo Manual HI 61, 68, referring to id. HH 38-46; compare NWP 1-14M Annotated 11 8.1.1; NWP 9A 
Annotated H 8.1.1. 

443. San Remo Manual HH 47-52. 

444. Id. HH 60(c), 60(g), 67(d); compare NWP 1-14M Annotated HH 7.5.1-7.5.2; 8.2.2.2, at 8-12; NWP 9A Annotated, 
HH 7.5.1-7.5.2; 8.2.2.2, at 8-12. 

445. Protocol I, preamble; San Remo Manual, H 6 & Commentary 6.1. The United States and other Gulf naval 
powers had the view that the Tanker War was a war in the traditional sense and that the LOAC, of which the law of 
naval warfare is a part, applied. See n. 11.84 and accompanying text. Chapter III concentrates on Charter principles; 
Chapter V addresses LOAC principles. See Parts V.A.-V.D., V.F.2, V.F.5, V.G, V.J.1-V.J.4, V.J.6-V.J.7 for analysis of 
these attacks. 

446. Cf nn. 11.97, 192 and accompanying text. 

447. See nn. 11.97, 192-93 and accompanying text. 

448. See, e.g., nn. 11.295, 344, 346-49, 350, 359, 361 and accompanying text. 

449. See n. 11.146 and accompanying text. 

450. See nn. 207-88, 308-36 and accompanying text. 

451. See, e.g., nn. 11.384, 437-40, 442, 454-56 and accompanying text. 

452. See 11.368-70 and accompanying text. 

453. See n. 11.430 and accompanying text. 

454. See nn. 11.393-399 and accompanying text. 

455. See n. 11.469 and accompanying text. 

456. See n. 391 and accompanying text. 

457. See nn. 11.394-96, 469 and accompanying text. 

458. See n. 11.449 and accompanying text. 

459. See n. 11.447 and accompanying text. 



World Public Order 217 



460. See nn. 308-36 and accompanying text. 

461. See n. 11.412 and accompanying text. 

462. See nn. 308-36 and accompanying text. 

463. See n. 11.386 and accompanying text. 

464. See nn. 308-36 and accompanying text. 

465. See nn. 11.391-92 and accompanying text. 

466. See n. 11.393-95 and accompanying text. 

467. See n. II.430and accompanying text. 

468. See n. 11.363 and accompanying text. 

469. See nn. 11.338-40 and accompanying text. 

470. See nn. 11.367 (warning shots), 11.410 and accompanying text. 

471. See nn. 11.364, 373, 391, 400, 406, 410-13, 434, 446, 463-64, 468-70, 472, 520 and accompanying text. 

472. See nn. 11.459-68 and accompanying text. 

473. See nn. 11.339, 468 and accompanying text. 

474. See, e.g., n. 11.410 and accompanying text. 

475. Necessity, proportionality and other qualifications of the right to self-defense are analyzed at nn. 485-590 and 
accompanying text. 

476. See Parts V.A.-V.D., V.F.2, V.F.5, V.G, V.J.1-V.J.4, V.J.6-V.J.7 

477. UN Charter, art. 2(1); S.S. Lotus (Fr. v. Turk.), 1927 PCIJ, Ser. A, No. 10, at 4, 18; see also n. 30 and 
accompanying text. 

478. See nn. 272-76, 282, 292 and accompanying text. 

479. See nn. 485-590 and accompanying text. 

480. Id. 

481. Id. 

482. See nn. 11.437-42, 454-56 and accompanying text. 

483. See nn. 11.437-41 and accompanying text. 

484. See nn. II. 446-53 and accompanying text. 

485. See n. 357 and accompanying text. 

486. Legality of Threat of Nuclear Weapons, 1996 (1) ICJ 226, 245; Nicaragua Case, 1986 ICJ 94; NWP 1-14M 
Annotated, H 4.3.2; NWP 9A Annotated H 4.3.2; Restatement (Third) § 905(1 )(a) & cmt. c, r.n. 3; San Remo Manual 
11 3 & Commentary 3.3. NWP 1-14M Annotated 1 4.3.2.1 departs from NWP 9A Annotated, stating that in today's 
world of modern lethal weapon systems, the Caroline Case formula for necessity, n. 357 and accompanying text, is too 
restrictive. Commentators have criticized the Caroline Case formula as outmoded. See, e.g., McDougal & Feliciano 
217-18; Lowe, The Commander's, n. 318, 127-30; Mallison & Mallison, Naval, n. 261, 263; Abraham D. Sofaer, 
Terrorism, The Law, and the National Defense, 126 Mil. L. Rev. 89 (1989). Others continue to espouse this aspect of 
anticipatory self-defense, however. See generally nn. 356-57 and accompanying text. For this reason, and because NWP 
1-14M Annotated was not published until after the Tanker War, analysis proceeds on the basis that the Caroline Case 
formulation of necessity was part of anticipatory self-defense requirements for the conflict. 

487. San Remo Manual H 4. 

488. See nn. 591-616 and accompanying text. 

489. See nn. 646-49 and accompanying text. 

490. Many States protested belligerents' actions during the Tanker War, and the belligerents protested actions by 
their opponent or third States. See, e.g., nn. 11.177, 225, 234, 333, 379, 432-33, 492 and accompanying text. 

491. E.g., the United States settled with Iraq for the Stark claims and with Iran for the Airbus tragedy. See nn. 
11.339, 468 and accompanying text. 



218 The Tanker War 



492. The United States invoked ICJ jurisdiction to resolve the Iran hostage situation, Hostage Case, n. 11.12, and 
Iran claimed against the United States for the Rostum attack and the Airbus tragedy, the latter being settled. See nn. 
11.395, 432-34, 468 and accompanying text. 

493. E.g., a State could keep a "ledger [for] an aggression of pin-prick attacks" and respond proportionally to all in 
the future. Dinstein 226; Roberto Ago, Addendum to Eighth Report on State Responsibility, UN Doc. A/CN.4/318 & Add. 
1 -4 1979(2)( 1 ) Y.B. Int'L L. Comm. 1 3, 69-70 (1981). Responding with force in self-defense that seems disproportionate 
to the latest prick carries a risk that a target of the response or others may argue the response is disproportionate and 
therefore an aggressive armed attack by the pricked State. Dinstein 225. "Genuine on-the-spot reaction [closes] the 
incident." Id. 214. This is wiser than accumulating them for future action, as Israel appears to have announced for 
SCUD attacks on it during the 1990-91 Gulf War. Whether a State collects such hurts for future action, or whether it 
approves immediate response, notice must be given clearly to the other State and the general international community 
to avoid counterclams of aggression, etc. If a response could be construed to apply to more than one prick, and is 
intended for a particular harm, that too should be underscored. The United States did this in thcSea Isle City response. 
See nn. 11.394-98 and accompanying text. 

494. E.g., the 1979-80 hostage situation involved several strategies: judicial and military (i.e., the aborted Tehran 
raid), Hostage Case, n. II. 1 2, 1 980 ICJ 3; diplomacy and claims resolution through arbitration, Declarations of Algeria 
Concerning Commitments and Settlement of Claims by the United States and Iran with Respect to Resolution of the 
Crisis Arising Out of Detention of 52 U.S. Nationals in Iran, with Undertakings & Escrow Agreement, Jan. 19, 1981, 

TIAS ,in 20 ILM 224 (1991); economic,*:/ Dames & Moore v. Regan, 453 US 654 (1981). Dames also shows that 

strategies may be carried out in different arenas. The case was litigated in the US national courts, as distinguished 
from judicial strategies in the ICJ Hostage Case, and by different levels of participants, i.e., private litigants invoking 
US courts' jurisdiction to attach Iranian assets, some in private hands and some State-owned. States were parties in the 
Hostage Case. Cf. ICJ Statute, art. 34. 

495. Oscar Schachter, The Right of States to Use Armed Force, 82 Mich. L. Rev. 1620, 1635 (1984); see also Dinstein 
202-03 who, id. 244-45, would inject a "beyond reasonable doubt" standard for armed bands crossing a border, perhaps 
reflecting Definition of Aggression, n. 62, art. 3(g), 1 3 ILM 714, cautionary language. Even if a heightened standard is 
appropriate to counter such aggression, it is not a requirement for responding to other acts of aggression. 

496. San Remo Manual 11 3, Commentary 3.3. 

497. Id. H 4, Commentary 4.3. 

498. Cf. id., citing NWP 9A Annotated 11 5.2, restating LOAC standards. See also id. 11 S6.2.5.2, which says US 
military tribunals have applied the same rules for a military necessity defense to individuals and nations. Military 
necessity allows measures necessary to compel an enemy's submission but does not permit destruction of life and 
property beyond the necessities of war. See 3 Hyde § 655; McDougal& Feliciano72, 528; NWP 1-14M Annotated H 
5.2; Stone 352. 

499. UN Charter, art. 103; see also n. 10 and accompanying text, particularly as to the potential role of customary 
norms in superseding the Charter. 

500. See n. 205 and accompanying text. 

501. Brownlie, Use of Force 305 ; Dinstein 214; see also Nyon Arrangement; Nyon Supplementary Agreement. 

502. See nn. 11.348, 350-52, 359, 361-62, 382, 393, 435, 437, 446-53, 471, 494, 498 and accompanying text. 

503. These acts might violate incidents at sea agreements (INCSEA), however, and give rise to a diplomatic claim. 
See nn. IV. 19, IV.22 and accompanying text. 

504. Dinstein 190; see also nn. 374-77 and accompanying text. 

505. See n. 378 and accompanying text. 

506. See Bunn, n. 358, 69-70. 

507. See Stone 352-53. 

508. See nn. 11.74-80 and accompanying text. 

509. See nn. 11.143, 178-79, 201-03, 215, 234-40, 248-60, 263, 269, 272-74, 288-89, 295, 300, 312, 323-24, 337, 343, 
362, 364, 373, 376, 378, 386, 93-94, 400, 403, 406, 412-13, 420-21, 429, 434, 446-53, 463-64, 470, 520-21 and 
accompanying text. 

510. See n. 493 and accompanying text. 

511. See nn. 617-30 and accompanying text. 



World Public Order 219 



512. McDougal & Feliciano 230. 

513. Nicaragua Case, 1986 ICJ 94; McDougal & Feliciano 231-41, citing inter alia T.J. Lawrence, The Principles 
of International Law 118 (2d ed. 1897); 1 John Westlake, International Law 300(1904); NWP 1-14M Annotated 
It 5.2; NWP 9A Annotated 11 5.2; San Remo Manual 1111 3, Commentary 3.3; 4, Commentary 4.3; Georg 
Schwarzenberger, The Fundamental Principles of International Law, 87 RCADI 195, 334 (1955). McDougal & 
Feliciano continue analysis by criticizing commentators' narrow views, e.g., Kunz, Individual, n. 189, on 
self-defense's scope in the Charter era, but regardless of a position taken on scope, necessity qualifies all self-defense 
claims. 

514. See nn. 11.224-27, 305, 345-47 and accompanying text. 

515. See nn. 521-85 and accompanying text. 

516. See nn. 11.368-72 and accompanying text. 

517. See nn. 11.264, 336, 354-55, 357, 374, 384-87, 437-42, 454-56 and accompanying text. 

518. In 1992 Iran sued the United States in the ICJ for the attacks on the oil platforms; in 1997 the Court held for 
jurisdiction. See nn. 11.432-34 and accompanying text. 

519. See n. 11.459-76 and accompanying text. 

520. See nn. 253-55 and accompanying text. 

521. Legality of Threat of Nuclear Weapons, 1 996 ( 1 ) ICJ 245 ; Nicaragua Case, 1 986 ICJ 94. Commentators agree, 
whatever their view on anticipatory self-defense or if the restrictive Caroline Case formulation of necessity is a 
component of anticipatory self-defense. See, e.g., Bowett, Self-Defence 269; Broms, The Definition, n. 1 12, 129-30; 
Dinstein 202-03; McDougal & Feliciano 241-44; NWP 1-14M Annotated H 4.3.2; NWP 9A Annotated H 4.3.2; 
Rifaat, n. 23, 127; Restatement (Third) § 905(l)(b) & cmt. d, r.n. 2; San Remo Manual 11 3 & Commentary 3.3; Ago, 
n. 493, 69-70; Christopher Greenwood, Self-Defence and the Conduct of International Armed Conflict, in International 
Law, n. 11, 273, 274; Waldock, The Regulation, n. 52, 463. 

522. NWP 1-14M Annotated 11 4.3.2; NWP 9A Annotated 11 4.3.2; San Remo Manual 11 4. 

523. Dinstein 129; see also San Remo Manual 111 3, Commentary 3.3; 4, Commentaries 4.1, 4.4-4.5. 

524. Dinstein 225-26; Higgins, The Development, n. 55, 201; Ago, n. 492, 69-70. 

525. Dinstein 225-26; Rifaat, n. 22, 270-71. 

526. Dinstein 215. 

527. San Remo Manual H 3, Commentary 3.3. 

528. UN Charter, art. 103; see also nn. 10, 205 and accompanying text. 

529. McDougal & Feliciano 228, 241-44. 

530. Id. 244; San Remo Manual 11 3, Commentary 3.3. 

531. See nn. 11.368-72 and accompanying text. 

532. See nn. 11.429-333 and accompanying text. 

533. Ago, n. 493, 69; see also McDougal & Feliciano 242; Christopher Greenwood, Report II: The Effects of the 
United Nations Charter on the Law of Naval Warfare 15-16 (1991), unpublished paper presented at International 
Institute of Humanitarian Law Round Table, Bergen, Norway, Sept. 1991 (copy in author's file). 

534. Waldock, The Regulation, n. 52, 464. 

535. Dinstein 232. He adds a parenthetical "(despite any ultimate lack of proportionality)" after id. Since he 
follows with Ago, n. 493, 69 ("It would be mistaken . . . what matters is the result to be achieved by the 'defensive' action 
and not the terms, substance and strength of the action itself), Dinstein 232 cannot be understood to mean that in 
all-out war proportionality goes overboard. What he undoubtedly means is that the key is not proportionality of 
response in terms of reaction force(s) but proportionality in terms of result achieved, i.e., "stopping or preventing the 
infringement." Ago 69; Waldock, The Regulation, n. 52, 464. 

536. Dinstein 233. 

537. Id. 234, citing Kunz, Individual, n. 189, 876. 

538. Accord, San Remo Manual, 11H 3, Commentary 3.3; 5, Commentary 5. 1 ; but see id. 11 5, Commentary 5.2. 



220 The Tanker War 



539. Dinstein 234. 

540. McDougal & Feliciano 231-32 , citing Judgment of International Military Tribunal for the Far East 964-66, 
976-78, 994-95; see also n. 357 and accompanying text. 

541. Dinstein 234, citing S.H. Amin, The Iran-Iraq Conflict: Legal Implications, 31 ICLQ 167, 186 (1982). 

542. Cf. UN Charter, art. 2(4), requiring respect for States' territorial integrity; see also nn. 47-157 and 
accompanying text. 

543. See nn. 11.97, 192 and accompanying text. 

544. See nn. 11.378, 484-502 and accompanying text. 

545. Cf. 0'Connell,TheInfluence65; Greenwood, Self-Defence, n. 521,273; Greenwood, .Report, n. 533, 20-27. 

546. Greenwood, Self-Defence, n. 521, 277; see also nn. 259-64 and accompanying text. 

547. O'Connell, The Influence 65; see also n. 244 and accompanying text. 

548. Iraq had ordered frigates in Italy; they were being built there as the war started. They sat out the war there. See 
n. 11.130 and accompanying text. 

549. McDougal & Feliciano 242; Ago, n. 493, 69; Greenwood, Report, n. 533, 16; Waldock, The Regulation, n. 52, 
464. 

550. See n. 259 and accompanying text. 

551. See nn. 591-616 and accompanying text. 

552. The Korean War and the 1990-91 Gulf War are notable exceptions. See nn. 11.501-14, 111.220-22, 281-84, 
310-13 and accompanying text. 

553. See nn. 220-22, 281-84, 310-13 and accompanying text. 

554. See nn. 235-43, 249 and accompanying text. 

555. See nn. 259-64 and accompanying text. 

556. See nn. 245-48 and accompanying text. 

557. See n. 550 and accompanying text. 

558. See nn. 533-38 and accompanying text. 

559. UN Charter, arts. 2(1), 2(3); see also nn. 30, 47-157 and accompanying text. 

560. See Walker, Crisis Over Kuwait 30 n. 27. 

561. San Remo Manual HH 3, Commentary 3.3 refutes this view; see also nn. 546-51 and accompanying text. 

562. See n. 11.457 and accompanying text. 

563. See nn. 11.224-17 and accompanying text. 

564. See nn. 11.367 (warning shots), 410 and accompanying text. The United States had concerns over attacks from 
Iranian speedboats. See nn. 11.364, 373, 391, 400, 406, 410-11, 434, 446, 463-64, 468-70, 472, 520 and accompanying 
text. 

565. See nn. 11.144, 177, 274-78, 422-23 and accompanying text. 

566. See nn. 11.491-92 and accompanying text. 

567. Cf nn. 11.178, 201-02, 234-40, 248,250-59, 263-64, 269, 272, 288-89, 295, 300, 304, 319, 334-35, 338-40, 355-58, 
364, 368, 373-74, 376-78, 391-92, 400, 406, 412-13, 420-21, 424, 429-31, 434, 446, 459-64, 468, 469, 518-23 and 
accompanying text. 

568. See nn. 11.115-16, 178, 231, 258, 309, 334, 336, 358, 393, 401, 406, 434 and accompanying text. 

569. UN Charter, art. 2(4); see also nn. 45-157 and accompanying text. 

570. UN Charter, art. 51; see also nn. 158-288 and accompanying text. 

571. See nn. 11.92, 103, 111-15, 121, 143, 178-83, 207, 210-14, 216, 232-35, 239-40, 279-80, 288, 306, 310, 313,457, 
473-76 and accompanying text. 

572. See nn. 11.210-14 and accompanying text. 



World Public Order 221 



573. See nn. 11.368-72 and accompanying text. 

574. See nn. 11.393-402 and accompanying text. 

575. See nn. 546-51 and accompanying text. 

576. See nn. 11.391-92. 429-33, 459-68 and accompanying text. 

577. See nn. 11.338-40 and accompanying text. 

578. See nn. 11.459-68 and accompanying text. 

579. See nn. 546-51 and accompanying text. 

580. See nn. 591-616 and accompanying text. 

581. Corfu Channel (UK v. Alb.), 1949 ICJ 5, 22. 

582. Now restated inter alia in LOS Convention, art. 38;5£etf/sonn.IV.522-619,V.70-71 and accompanying text. 

583. See generally, e.g., San Remo Manual HH 47-66; see also Parts V.C, V.D and V.G. 

584. Protocol I, preamble; San Remo Manual, 11 6 & Commentary 6. 1 ; see also nn. 485-579 and accompanying text. 

585. UN Charter, arts. 51,103; see also n. 10 and accompanying text. 

586. See n. 357 and accompanying text. 

587. See nn. 11.224, 305, 345-47, 391-92, 429-33, III. 420-23, 464, 514 and accompanying text. The same might be 
said about anticipatory self-defense incidents in Libya-US confrontations. See nn. III. 389-91 and accompanying text. 

588. See nn. 414-17 and accompanying text. 

589. See nn. 11.277, 282, 288, 295, 297, 306 and accompanying text. 

590. See nn. 11.459-68, III. 475, 519, 578 and accompanying text. 

591. Higgins, The Attitude, n. 376, 444. 

592. Ago, n. 493, 39. 

593. E.g., Gabeikovo-Nagymaros Project (Hung. V. Slovak.), 1997 ICJ 7, 54; Nicaragua Case, 1986 id. 127; Friendly 
Relations Declaration; Bowett, Self-Defence 13; Brierly 401-02; Brownlie, Use of Force 281; Goodrich et al. 
340-47; Higgins, The Development, n. 56, 217; 2 Oppenheim §§ 43; 52a, at 152-53; Simma 105; Stone 286-87; Ago, n. 
493, 42; Roberto Barsotti,Armed Reprisals, in Cassesse, n. 207, 79; D.W. Bowett, Reprisals Involving Recourse to Armed 
Force, 66 AJIL 20 (1972); Higgins, The Attitude, n. 376, 444; Tucker, Reprisals, n. 358, 586-87; cf. NWP 1-14M 
Annotated 11 6.2.3; NWP 9A Annotated H 6.2.3; contra, Dinstein 215-26; Lawrence T. Greenberg et al., Information 
Warfare and International Law 26-27 (1997). 

594. NWP 1-14M Annotated H 6.2.3.1, at 6-18; NWP 9A Annotated H 6.2.3.1, at 6-19. 

595. Corfu Channel (UK v. Alb.), 1949 ICJ 35; see also Higgins, The Development, n. 55, 216-17. 

596. Higgins, The Development, n. 56, 7-18; Higgins, The Attitude, n. 376, 444-45; see also, e.g., S.C. Res. Ill 
(1956), mWELLENS 653. 

597. Friendly Relations Declaration, n. 69. 

598. Higgins, The Attitude, n. 376, 445. 

599. Id., citing inter alia 1 Rosalyn Higgins, United Nations Peacekeeping 221-27 (1970); Richard B. Lillich, 
Economic Coercion and the International Legal Order, in Lillich, Economic Coercion and the New International 
Economic Order 73 (1979); Paust & Blaustein, n. 61. 

600. Air Service Agreement Between France & United States (Fr. v. US), 1 8 UNRI AA 41 7, 446 (Arb. 1978); Ago, n. 
493, 43. 

601. See nn. 259-64 and accompanying text. 

602. Responsibility of Germany for Acts Committed After 31 July 1914 & Prior to Portugal's Entry into the War 
(Port. v. Ger.), 2 UNRIAA 1037, 1047, 1056-57 (Arb. 1930) (Cysne Case); Ago, n. 493, 45-46. 

603. Ago, n. 493, 41, citing Responsibility of Germany for Acts Committed in Portuguese Colonies in the South of 
Africa (Port. v. Ger.) (Naulilaa Arbitration), 2 UNRIAA 1012, 1025-26 (Arb. 1928) (Naulilaa Arbitration); Cysne Case, 
n. 602; see also NWP 1-14M Annotated H 6.3.2.1; NWP 9A Annotated 11 6.2.3.1; Higgins, The Attitude, n. 376, citing 
Naulilaa Arbitration. 



222 The Tanker War 



604. See Parts V.A.I, V.C.I, V.E.I, V.F.l.b, V.F.2, V.G.2-V.G.3, V.J.I, V.J.3, V.J.5-V.J.7. 

605. See nn. 580-85 and accompanying text. 

606. UN Charter, arts. 25, 48, 103; Ago, n. 493, 43-44; see also n. 552 and accompanying text. 

607. UN Charter, art. 50, invoked by Jordan and other States during the 1990-91 Gulf War. See Walker, Crisis Over 
Kuwait 37-38. See also Goodrich et al. 341-42; Simma 659-61. 

608. UN Charter, art. 103; see also n. 10 and accompanying text. 

609. Ago, n. 493, 44 n. 194; see also, e.g., S.C. Res. 418 (1977), 558 (1984), 569 (1985), 591 (1986), in Wellens 98, 
227-28, 230 (embargo on arms sales to South Africa, followed by prohibition on UN Members' buying South African 
arms, etc.; Members urged to adopt measures, e.g., suspending new investment, prohibiting South African coin sales, 
restricting sports and cultural relations, suspending guaranteed export loans, prohibiting new contracts for nuclear 
facilities and computer equipment sales to South African army, police, etc.). A US response, after issuing executive 
orders, was Comprehensive Anti-Apartheid Act of 1986, 22USC§§ 5001-51 17 (1988). See also Nico Schrijver, The Use 
of Economic Sanctions by the UN Security Council: An International Law Perspective, in International Economic Law 
and Armed Conflict 123, 131-32 (Harry H.G. Post ed. 1994). 

610. Cable 63, 107-09, 193, noting an initial General Assembly resolution; O'Connell, The Influence 137-38, 
174-75, referring to S.C. Res. 221 (1965), 232 (1966), in Wellens 127-28; 16 Keesing 22525 (1968). After Zimbabwe 
became independent, S.C. Res. 460 (1979), in Wellens 148, ended the embargo and other restrictions. US executive 
orders complied with Council resolutions, but Congress later exempted US chrome ore exports, which under the US 
later-in-time construction rule took priority over Council resolutions and executive orders. Exec. Order No. 1 1 322, 3 
CFR 243 (1967 Compil.); Diggs v. Schultz, 470 F.2d 461, 465-67 (D.C Cir. 1972). Later legislation, 22 USC § 287c 
(1994) and Act of Mar. 18, 1977, 91 Stat. 22, conformed the United States to the Council resolutions by removing the 
chrome ore exception. See also Schrijver, n. 609, 129-30. 

611. UN Charter, art. 103, allows overriding agreements, e.g., Fourth Convention, art. 23, if it had applied, perhaps 
through inference from Corfu Channel (UK v. Alb.), 1949 ICJ 15; see also nn. 580-85 and accompanying text. For 
analysis of contraband and blockade rules, see Parts V.C.4, V.D.3-V.D.4, V.E, V.J.3-V.J.5. 

612. See generally Walker, Crisis Over Kuwait 30-40. 

613. S.C. Res. 665 (1990), in Wellens 530. 

614. S.C. Res. 670 (1990), in id. 534. 

615. Cf. Fourth Convention, cited in S.C. Res. 670 (1990), in id. 534. 

616. S.C. Res. 666 (1990), in Wellens 532. 

617. This Sub-Part first appeared as Walker, Anticipatory, n. 289, Liber Amicorum 393, 31 Cornell Int'l L.J. 
370-74. 

618. Nuremberg Judgment, n. 357,218-22,41 AJIL 207; United States v. Araki,n. 357, 382; see a/so McCormack,n. 
208, 254-56; Walker, Anticipatory, n. 289, Liber Amicorum 385-86, 31 Cornell Int'l L.J. 358; n. 357 and 
accompanying text. 

619. E.g., Alexandrov 163 appears to support his view that the 1981 Israeli raid on the Iraqi nuclear reactor could 
not be supported by self-defense because of a 1994 debate on imposing sanctions on North Korea rather than using 
force because of the danger of nuclear weapons. McCormack, n. 209, 98-99, derides a claim Israel had been given a 
necessary guarantee of security under the US Star Wars program, developed later in the Reagan Administration, was a 
reason why it may not have been necessary for Israel to bomb the reactor. In both cases the supposed precipitating 
event occurred after the 1981 raid. Of course, there may have been security-guarded debates over North Korea before 
1994, or security-covered Star Wars discussions in 1981 or earlier, but this is what the public record reveals as to these 
apparently anachronistic statements. The same kind of error-laden, after-the-fact justification or criticism can occur 
in self-defense situations, especially for anticipatory self-defense issues. 

620. Carl Von Clausewitz, On War 1 17-21 (Michael Howard & Peter Paret ed. & trans. 1976). 

621. Restatement (Third), § 313 cmt. b analyzes declarations and understandings: 

When signing or adhering to an international agreement, a state may make a unilateral declaration that does 
not purport to be a reservation. Whatever it is called, it constitutes a reservation in fact if it purports to 
exclude, limit, or modify the state's legal obligation. Sometimes, however, a declaration purports to be an 
"understanding," an interpretation of the agreement in a particular respect. Such a . . . declaration is not a 



World Public Order 223 



reservation if it reflects the accepted view of the agreement. But another contracting party may challenge the 
expressed understanding, treating it as a reservation which it is not prepared to accept. 
In relation to a multilateral agreement, a declaration of understanding may have complex consequences. If it 
is acceptable to all contracting parties, they need only acquiesce. If, however, some contracting parties share 
or accept the understanding but others do not, there may be a dispute as to what the agreement means, and 
whether the declaration is in effect a reservation. In the absence of an authoritative means for resolving that 
dispute, the declaration, even if treated as a reservation, might create an agreement at least between the 
declaring state and those who agree with that understanding. See [Restatement (Third), § 3 13(2)(c), dealing 

with reservations] However, some contracting parties may treat it as a reservation and object to it as such, 

and there will remain a dispute between the two groups as to what the agreement means. 

See also Vienna Convention, arts. 19-23, ILC Rep., n. 192, 189-90; Bowett, Reservations, n. 197, 69; nn. 192, 197 and 
accompanying text for reservations to multilateral agreements. 

622. The United States may ratify Protocol II, but the Reagan Administration expressed serious reservations to 
Protocol I and did not ask Senate advice and consent for it. President Reagan transmittal letter to US Senate, Jan. 29, 
1987; Secretary of State George P. Schultz letter of submittal to President Reagan, Dec. 13, 1986, in Message from the 
President of the United States Transmitting the Protocol II Additional to the Geneva Conventions of 1949, and 
Relating to the Protection of Victims of Noninternational Armed Conflicts, Concluded at Geneva on June 10, 1977, S. 
Treaty Doc. 100-2, 100th Cong., 1st Sess. (1987), in 26 ILM 561 (1987). 

623. Protocol I, art. 51. Id., art. 51(2) and 51(5) prohibitions on attacks on civilians, absent other considerations 
such as those civilians who take up arms, restate customary law. AFP 110-31 ch. 14; Bothe et al. 299 & n.3; NWP 
1-14M Annotated UU 6.2.3.2 (noting protections also under Fourth Convention, art. 33), 11.2 n.4, 11.3; NWP 9A 
Annotated 1111 6.2.3.2 (same),11.2 n.3, 11.3; 4 Pictet 224-29; San Remo Manual H 39; Stone 684-732; Matheson, 
Remarks 423, 426; William G. Schmidt, The Protection of Victims of International Armed Conflicts: Protocol I Additional to 
the Geneva Conventions, 24 Air Force L. Rev. 189, 225-32 (1984); Waldemar A. Soli, Protection of Civilians Against the 
Effects of Hostilities Under Customary International Law and Under Protocol I, 1 AM U.J. Int'L L. & Pol. 117, 130-31 
(1986). Civilians may not be used as human shields, nor may they be a subject of attacks intended to terrorize them, 
although otherwise legitimate attacks that may terrorize them are permissible. Specific intent to terrorize gives rise to 
liability. NWP 1-14M Annotated HH 11.2 (noting protections under Fourth Convention, arts. 28, 33), 11.3; NWP 9A 
Annotated 111 11.2 (same), 11.3; Hans-Peter Gasser, Prohibition of Terrorist Attacks in International Humanitarian Law, 
1985 Int'L Rev. Red Cross 200; Hague Air Rules, art. 22; Matheson 426; Schmidt 227. Article 51 rules of distinction, 
necessity and proportionality, with the concomitant risk of collateral damage inherent in any attack, generally restate 
custom. Bothe et al. 309-11, 359-67; Frits Kalshoven, Constraints on the Waging of War 99-100 (1987); 
McDougal & Feliciano 525; NWP 1-14M Annotated HH 5.2 & n.7, 8.1.2.1; NWP 9A Annotated HH 5.2 & n.6, 8.1.2.1; 
San Remo Manual 1111 39-42 & Commentaries; Stone 352-53; W.J. Fenrick, The Rule of Proportionality and Protocol I in 
Conventional Warfare, 98 Mil. L. Rev. 91, 125 (1982) (questioning whether proportionality is an accepted customary 
norm); Matheson 426; Results of the First Meeting of the Madrid Plan of Action Held in Bochum, F.R. G., November 1 989, 1 
BSFHV 170-71 (1991); Schmidt 233-38; Solf 131; G.J.F. van Hegelsom, Methods and Means of Combat in Naval 
Warfare, 8 BSFHV 1, 18-19 (1992). 

624. Protocol I, art. 52, states a general customary norm, except the prohibition on reprisals against civilians in art. 
52(1), for which there are two views. See generally Bother al. 320-27; Colombos §§ 510-11, 524-25, 528-29; NWP 
1-14M Annotated 1111 6.2.3 & n.36, 6.2.3.2 (protection for some civilians from reprisals under Fourth Convention, art. 
33), 8.1. 1 & n.9, 8.1.2 & n.12; NWP 9A Annotated UU 6.2.3 &n.33, 6.2.3.2 (same), 8.1. l&n.9, 8. 1.2 &n.l2 (US view that 
Protocol I, art. 52[ 1] "creates new law"); 2 O'Connell, Law of the Sea 1 1 05-06; 4 Pictet 131; Pilloud, Commentary 
IH 1994-2038; Matheson, Remarks 426; Frank Russo, Jr., Targeting Theory in the Law of Naval Warfare, 30 N AV. L. Rev. 
1, 17 n.36 (1992) (rejecting Protocol I, art. 52(2) applicability to sea warfare); Solf, Protection, n. 623, 131. 

625. Protocol I, art. 57, whose rules of distinction, necessity and proportionality, with concomitant risk of 
collateral damage inherent in any attack generally restate custom. See generally Bothe et al. 309-11; Kalshoven, 
Constraints, n. 623, 99-100; McDougal & Feliciano 525; NWP 1-14M Annotated 11 8.1.2.1 & nn. 19-20; NWP 9A 
Annotated 11 8.1.2.1 & nn.19-20; San Remo Manual UU 39-42 & Commentaries; Stone 352-53; Fenrick, The Rule, n. 
623, 125 (questioning whether proportionality accepted as custom); Matheson, Remarks 426; Results, n. 621, 170-71; 
Schmidt, The Protection, n. 623, 233-38; Solf, Protection, n. 622, 131; van Hegelsom, n. 622, 18-19. 

626. Belgium Declaration, May 20, 1986, in Schindler & Toman 706, 707; Italy Declaration, Feb. 27, 1986, in id. 
712; the Netherlands Declaration, June 26, 1977, in id. 713, 714; UK Declaration, Dec. 12, 1977, in id. 717; see also 
Bothe etal. 279-80, 310, 363; NWP 1-14M Annotated II 8.1.2.1 & n.19; NWP 9A Annotated H 8.1.2.1 & n.19. 

627. Mine Protocol, Oct. 10, 1980, art. 2(4), as amended May 3, 1995, art. 2(6); Incendiary Weapons Protocol, Oct. 
10, 1980, art. 1(3). The United States has ratified the Convention, Fragments Protocol, and the Mine Protocol; the 



224 The Tanker War 



Incendiary Weapons Protocol is not yet in force for the United States. TIF 452. Protocol on Blinding Laser Weapons, 
May 3, 1995, 35 ILM 1218 (1996) has been negotiated; id. and Fragments Protocol have no such provisions. 
Commentators for the Mine and Incendiary Weapons Protocols say little about these provisions; they state the 
obvious. See generally Burrus M. Carnahan, The Law of Land Warfare: Protocol II to the United Nations Convention on 
Certain Conventional Weapons, 105 Mil. L. Rev. 73 (1984); W.J. Fenrick, Comment, New Developments in the Law 
Concerning the Use of Conventional Weapons in Armed Conflict, 19 Cybil 229 (1981); Howard S. Levie, Prohibitions and 
Restrictions on the Use of Conventional Weapons, 68 St. John's L. Rev. 643 (1994); J. Ashley Roach, Certain Conventional 
Weapons Convention: Arms Control or Humanitarian Law?, 105 Mil. L. Rev. 1 (1984); Willam G. Schmidt, The 
Conventional Weapons Convention: Implication for the American Soldier, 24 Air Force L. Rev. 279 (1984). The United 
States declared it would not sign the Convention on Prohibition of Use, Stockpiling, Production & Transfer of 
Anti-personnel Mines & on their Destruction, Sept. 18, 1997, 36 ILM 1507 (1997). See generally William J. Clinton, 
Remarks on Landmines and an Exchange with Reporters, 33 Weekly Comp. Pres. Doc. 1356-59 (1997). Other States' 
actions indicate the Convention will go into force. The Clinton Administration pledged the United States will sign the 
Convention by 2006, but only if the Pentagon comes up with an alternate weapon, particularly for land mines in 
Korea. Steven Lee Myers, Clinton Agrees to Land-Mine Ban, but Not Yet, N.Y. Times, May 22, 1998, A3. 

628. Table A5-1, States Party to the Geneva Convention and Their Additional Protocols, NWP1-14M Annotated, 5-24 
lists 148 States party to Protocol I as of Oct. 15, 1997. The United States is not a party; see n. 622 . TIF 452 lists 56 
countries party to the Conventional Weapons Convention as of Jan. 1, 1996. Most are parties to its Mine and 
Incendiary Weapons Protocols. 

629. San Remo Manual 11 46(b) & Commentary 46.3; Second Protocol, art. 1(f); see also Ben Cheng, General, n. 
377, 90; Dinstein 191; McDougal & Feliciano 220. 

630. See n. 618 and accompanying text. 

631. Corfu Channel (UK v. Alb.), 1949 ICJ 35; Bowett, Self-Defence 10; Brownlie, Use of Force 46-47; 1 
Oppenheim § 126; Higgins, The Development, n. 56, 216; Ago, n. 493, 15-17. Legality of Threat or Use of Nuclear 
Weapons, 1996(1) ICJ 263, 266 (8-7 adv. op.), citing UN Charter, art. 51, could not decide whether a threat or use of 
nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defense, where a State's very survival 
is at stake. Legality of Use by a State of Nuclear Weapons in Armed Conflict, id. 66, 84 declined to rule on a World 
Health Organization advisory opinion request on the same subject. Judge Schwebel, dissenting in the Threat or Use 
case, wrote: "[F]ar from justifying the Court's inconclusiveness, contemporary events rather demonstrate the legality 
of the threat or use of nuclear weapons in extraordinary circumstances." citing inter alia a 1990-91 Gulf War situation. 
Id. 311, 323. For analysis of the opinions and governments' reactions, see generally Ved P. Nanda & David Krieger, 
Nuclear Weapons and the World Court chs. 6-8 (1998). 

632. Ago, n. 493, 15. 

633. Id. 17, citing Schwarzenberger, The Fundamental, n. 512, 192, 343. 

634. Ago, n. 493, 18. See also Gabcikovo-Nagymaros Project (Hung. v. Slovak.), 1997 ICJ 40-44 (customary law); 
Corfu Channel (UK v. Alb.), 1949 id. 35; M/V Saiga (St. Vincent & Grenadines v. Equat. Guinea), 38 ILM 1323, 
1351-52 (Int'l Tribunal for L. of Sea 1999) (customary law); Bowett, Self-Defence 10; Brownlie, International 
Law 46-47; Higgins, The Development, n. 56, 2 1 6; Helsinki Principle 2.1; International Law Commission, Report of 
the Commission on the Work of Its Thirty-Second Session, State Responsibility, art. 33, in 1980 (2)(2) Y.B. Intl L. 
Comm'n 26, 34(1981); 1 Oppenheim § 126; 2 id. § 326; San Remo Manual 11 22; Schwarzenberger, The Fundamental, at 
343. 

635. Compare, e.g., Bowett, Self-Defence 10; Brownlie, Use of Force 42-48 (no such doctrine exists), with, e.g., 
Ben Cheng, n. 377, 31,69; Ago, n. 493,48-49; Schwarzenberger, The Fundamental, n. 513, 343; cf 1 Oppenheim §§131 
n. 15, 354. However, in view of the ICJ and the LOS Tribunal opinions, n. 634, it is fairly clear that there is a customary 
doctrine of necessity today. 

636. LOS Convention, art. 221; Intervention Convention, art. 1(1); see also 4 Nordquist 1IH 221. 1-221. 9(h); 2 
O'Connell, Law of the Sea 1006-08; nn. VI. 163-72 and accompanying text. 

637. 1 Oppenheim § 354; Ago, n. 493, 28-29. Brownlie, Use of Force 376-77, 432 apparently approves intervention 
in this situation. See also 4 Nordquist 11 221.2; 2 O'Connell, Law of the Sea 1006-08; nn. VI. 163-72 and 
accompanying text. 

638. Russian Indem. (Russ. v. Turk.), Hague Ct. Rep. (Scott) 297 (Perm. Ct. Arb. 1912); Forests of Central 
Rhodope (Gr. v. Bulg.), 3 UNRIAA 1405 (Arb.), modified by parties' statements before League of Nations Council, 15 
League of Nations O.J., No. 1 1 (Part 1), at 1432 (1934); French Co. of Venez. R.R. (Fr. v. Venez.), 10 UNRIAA 285, 353 
(Arb. 1902); Oscar Chinn (UK v. Belg.), 1934 PCIJ, Ser. AB, No. 63, at 89, 1 12-14 (dictum) (Anziolotti, J., sep. opin.). 



World Public Order 225 



639. International Law Commission, n. 634, 34, 52; compare Ago, nn. 493, 51. 

640. See nn. 11.348, 412, 447-52, 469-70 and accompanying text. 

641. Third Convention, arts. 12-13; Convention for Unification of Certain Rules of Law with Respect to Collision 
Between Vessels, Sept. 23, 1910, arts. 8, 11,212 CTS 178, 183, not applicable to warships and State vessels. The United 
States is not a party to this treaty. See also NWP 1-14M Annotated H 3.2.1; 3 Pictet 128-42; n. IV.816 and 
accompanying text. 

642. See nn. 11.210-14 and accompanying text. 

643. See nn. 424-25 and accompanying text. 

644. See, e.g., Walker, Oceans Law 185-86. 

645. Brierly 399; William Edward Hall, A Treatise on International Law § 1 20 ( A.Pearce Higgins ed., 8th ed. 
1924); 2 Hyde § 588; Frits Kalshoven, Belligerent Reprisals 27 ( 197 1 ); 7 Moore § 1090, citing Hall 367 Q.B. Atley 
ed., 5th ed. 1904); Restatement (Third) § 905 & r.n. 8; Simma 104; Stone 288-89; Waldock, The Regulation, n. 52, 458. 
Close reading of these sources indicates there is ambiguity in use of the term; there is a view that retorsion includes 
illegal acts responding to prior illegal acts, see Restatement (Third), and that retorsion can only mean an unfriendly 
response to a prior unfriendly act, and by inference not to a prior illegal act, see Kalshoven. The former kind of 
responses, i.e., proportional illegal responses to a prior illegal act, have been included under reprisals. See nn. 591-616 
and accompanying text. Kalshoven'S limitation seems unfortunate and not in keeping with a Charter philosophy of 
resolving disputes by means other than law violation (e.g., nonforce reprisals) or use of force. See UN Charter, art. 33; 
n. 655 and accompanying text. Allowing a State to respond to a potentially illegal aggressive pin-prick, rather than 
condemning the respondent to use of force in proportional self-defense, would also be in line with the necessity 
requirement. See nn. 493, 510 and accompanying text. In a given situation it might only be necessary to invoke a 
retorsion (e.g., a high seas naval demonstration, 2 Hyde § 588, at 1659) rather than using force m,e.g., the territorial sea. 

646. Hall, n. 645, § 120; 7 Moore § 1090; 2 Oppenheim § 135. 

647. See nn. 11.224-27, 305, 345-48 and accompanying text. 

648. See nn. 11.147, 295, 348, 350-55, 359, 361-62, 437-41, 446-56, 469-71, 494-95, 498 and accompanying text. 

649. See nn. 11.365, 379-81 and accompanying text. However, Iran's maneuvers in neutral territorial waters 
violated the law of the sea and those States' rights under UN Charter, art. 2(4); see n. 11.365 and accompanying text and 
Parts IV.C and IV.D.3. 

650. UN Charter, arts. 4(2), 16-17, 25, 85(1); see generally Goodrich e/ a/. 85-96, 514-18; Simma 165-70, 293, 295-317, 
961-62; Namibia, 1971 ICJ 16, 37-38. 

651. ICJ Statute, art. 38(1) and Restatement (Third) § 102 list treaties as a primary source for international law. 
The Charter is a treaty, 59 Stat. 1031, as amended Dec. 17, 1963, 16 UST 1134, 557 UNTS 143; Dec. 20, 1965, 19 id. 
5450; Dec. 20, 1971, 24 id. 2225, and principles flowing from Council decisions pursuant to UN Charter, arts. 25, 48, 
103 are treaty law binding on all UN Members that override all treaties. W. Michael Reisman, The Constitutional Crisis 
in the United Nations, 87 AJIL 83, 87 (1993). 

652. See generally Goodrich et al. 207-1 1, 334-37; Simma 410-15. Decisions must be approved by 9 of the 1 5 Council 
members, including all permanent members, i.e., those holding veto power, e.g., the United States. UN Charter, arts. 
23(1), 27(3). See also Goodrich et al. 192-94, 215-31; Simma 394-95, 434-67. UN Charter, art. 37(2) gives the Council 
authority to decide on or recommend action to resolve a dispute endangering international peace and security; see also 
Goodrich et al. 284-87; Simma 553-56. 

653. UN Charter, arts. 36(1), 37(1), 38; see also Goodrich et al. 277-89; Simma 538-41, 547-52, 561-65. 

654. UN Charter, arts. 39-40; see also Goodrich et al. 293-310; Simma 606-21. It may encourage dispute resolution 
by a regional arrangement or agency. UN Charter, art. 52(3); Goodrich et al. 360-64. 

655. UN Charter, arts. 33(2), 40; see also Goodrich et al. 263-65, 302-10. Under Article 40 the Council may state 
provisional measures and call upon countries to comply with them. 

656. UN Charter, art. 41; see also Goodrich et al. 311-14; Simma 625. 

657. Sydney D. Bailey & Sam Daws, The Procedure of the UN Security Council 18-21, 236-37 (3d ed. 1998); 
Castenada, n. 22, 78-79; Goodrich et al. 263, 306; Simma 546, 560, 564, 614, 620, 623-28,513, contra, Kelsen, The Law, 
n. 189,929. 

658. UN Charter, arts. 39-51. 



226 The Tanker War 



659. Bailey & Daws, n. 657, 268-71; Simma 612-14. 

660. UN Charter, arts. 33-38; see also nn. 653-55 and accompanying text. 

661. Namibia, 1971 ICJ 16, 52-54; see also Bailey & Daws, n. 657, 268-69; compare Vienna Convention, arts. 31-32; 
see also nn. 88-95 and accompanying text. 

662. Bailey & Daws, n. 657, 263-67, discusses some of the possibilities. 

663. Sydney J. Bailey, The Procedure of the UN Security Council 246 (2 nd ed. 1988); see also Castenada, n. 22, 
78-81; contra, Kelsen, The Law, n. 189, 932. 

664. S.C. Res. 82 (1950), in Wellens 324. 

665. See nn. 653-55 and accompanying text. 

666. S.C. Res. 82 (1950), in Wellens 324. 

667. S.C. Res. 83 (1950), in id. 325. 

668. S.C. Res. 84 (1950), in id. 324. 

669. S.C. Res. 88 (1950), in id. 326. Although it "Resolve[d]" to remove the Korean matter from the agenda, S.C. 
Res. 90 ( 1 95 1 ), in id. 327, was probably a decision. S.C. Res. 85(1 950), in id. 326, was recommendatory in its concern for 
civilian suffering in Korea. 

670. See n. 763 and accompanying text. 

671. E.g., S.C. Res. 43, 46, 49 (1948), in Wellens 633, 635. 

672. S.C. Res. 50 (1948), in id. 636. 

673. Cf. San Remo Manual 1111 60(g), 67(f); NWP 1 -14M Annotated 11 8.2.2.2; NWP 9A Annotated H 8.2.2.2; see also 
Parts V.B-V.E and V.J.2-V.J.5. 

674. S.C. Res. 54, 56, 62 (1948), in Wellens 637-38, 641. 

675. S.C. Res. 66 (1948), 73 (1949), in id. 642-43. 

676. The only decisions confirmed the right of Arabs removed from their homes in the demilitarized zone to be 
returned to their homes. S.C. Res. 93, 95 (1951), in id. 646, 648. 

677. S.C. Res. 95 (1951), in id. 648. 

678. Restatement (Third) § 103 (2)(d) & r.n. 2; see also n. 69 and accompanying text. 

679. S.C. Res. 101 (1953), in Wellens 650. 

680. S.C. Res. 106 (1955), in id. 651. 

681. S.C. Res. Ill (1956), in id. 653. 

682. S.C. Res. 171 (1962), in id. 657, referring to S.C. Res. Ill (1956), in id. 653. 

683. S.C. Res. 228 (1966), in Wellens 658. 

684. Compare S.C. Res. 233 (1967), in id. 666, with S.C. Res. 82 (1950), in id. 324. 

685. S.C. Res. 234-36 (1967), in id. 667. 

686. S.C. Res. 237 (1967), in id. 668. 

687. S.C. Res. 242 (1967), in id. 669. 

688. S.C. Res. 248, 256 (1968), in id. 670-71. 

689. S.C. Res. 265 (1969), in id. 673; compare S.C. Res. 248, n. 688. 

690. S.C. Res. 338-39 (1973), in Wellens 677; compare S.C. Res. 82 (1950), 233 (1967), in id. 324, 666. 

691. Introductory Note, id. 441. 

692. Cf UN Charter, art. 35(1). 

693. S.C. Res. 487 (1981), in Wellens 441. 

694. S.C. Res. 515 (1982), in id. 766. 

695. G.A. Res. 2012 (1965), in 4 ILM 161 (1966). 



World Public Order 227 



696. G.A. Res. 2024 (1965), in id. 166 (1966); see also UN Charter, art. 10; n. 69 and accompanying text. 

697. S.C. Res. 216 (1965), in Wellens 126. Previously the Council, noting the Assembly resolutions, had 
"[r]equest[ed]" the UK government to act to prevent a unilateral independence declaration. S.C. Res. 202 (1965), in id. 
125. 

698. S.C. Res. 217 (1965), in id. 126, formulated by US UN Permanent Representative Arthur Goldberg, "was 
generally acceptable only because nobody was sure what it meant" with the ambiguous "in time" qualification. 
Bailey, n. 663, 243. Simma 625 notes that Resolution 217 was nonmandatory because it did not invoke UN Charter, art. 
41. 

699. See Walker, State Practice 142-43. 

700. S.C. Res. 221 (1966), in Wellens 127. 

701. James Cable, Gunboat Diplomacy 1919-1979, 60, 126-27, 242-43, 246 (2 nd ed. 1981); O'Connell, The 
Influence 137-38, 174-75; 16 Keesing 22525 (1968); Walker, State Practice 142-43. 

702. States not UN Members (e.g., Switzerland) were "[u]rge[d]" to act in accordance with the embargo provisions. 
S.C. Res. 232 (1966), in id. 128. 

703. S.C. Res. 253 (1972), in id. 130; see also Simma 625. 

704. The resolution again urged States not UN Members to comply with its terms. S.C. Res. 277 ( 1 970), in Wellens 
133. 

705. S.C. Res. 314(1972), in id. 137, obviously aimed at, e.g., theByrd Amendment, exempting Rhodesian chrome 
ore imports from US legislation implementing the Council resolutions. S.C. Res. 320 (1972), in Wellens 139, cited the 
US deviation and urged compliance. The United States abstained on Resolution 320. See Wellens 140. In US law the 
Byrd exemption had force even though the United States was in default on its international obligations. Diggs v. 
Schultz, 470 F.2d 461, 465-67 (D.C. Cir. 1972). The chrome ore exception was removed by 1977 legislation. See 22 USC 
§ 287c (1988) and Act of Mar. 18, 1977, 91 Stat. 11. In other respects the United States complied with Council 
resolutions. Exec. Order No. 11322, 3 CFR 243 (1967 Compil.). 

706. S.C. Res. 333 (1973), in Wellens 140. 

707. S.C. Res. 388 (1976), in id. 142. S.C. Res. 409 (1977), in id. 143, forbade use or transfer of funds by Rhodesia or 
its offices or agents. 

708. Compare nn. 695-707 and accompanying text with, e.g., S.C. Res. 418 (1977) (arms embargo), 421 (1977) 
(appointment of reporting Committee), 569 (1982) (economic sanctions), 591 (1986) (expanded definition of arms, 
related material), in id. 218-19, 228, 230. 

709. S.C. Res. 460 (1979), in id. 148. 

710. Cf. UN Charter, arts. 10-11, 13-14; see also n. 69 and accompanying text. 

711. E.g., G.A. Res. 2283 (1968) in 7 ILM 1402 (1968); G.A. Res. 2379 (1968), in id. 1401 (1968). 

712. E.g., S.C. Res. 460, n. 709, citing G.A. Res. 1514, n. 35. 

713. S.C. 209-11, 214-15 (1965), in Wellens 427-30; see also nn. 245-46 and accompanying text. 

714. S.C. Res. 307 (1971), in Wellens 433; see also nn. 247 -48 and accompanying text. 

715. S.C. Res. 502 (1982), in Wellens 594. 

716. S.C. Res. 505 (1982), in id. 

111. This includes resolutions establishing UNIIMOG (UN Iran-Iraq Military Observer Group), continuing it 
until the 1990-91 Gulf War, and dealing with post-ceasefire issues. There were less than a dozen Security Council 
resolutions passed during the war, 1980-88. 

718. By then the Arab League and the European Community, regional organizations, had appealed to Iran and 
Iraq for a ceasefire. The Arab League is structured in two treaties, one for collective self-defense under UN Charter, 
art. 51, and the other as a regional arrangement under id., art. 52. See nn. 11.31, III. 800-17 and accompanying text. 

719. S.C. Res. 479 (1980), in Wellens 449; see also UN Charter, art. 33; nn. 11.96, 99 and accompanying text. 

720. See n. 11.98 and accompanying text. 

721. See n. 11.96 and accompanying text. 

722. See nn. 11.153-56 and accompanying text. 



228 The Tanker War 



723. S.C. Res. 514 (1982), in Wellens 450. 

724. S.C. Res. 522 (1982), in Wellens 45 1 . In September the Arab League had urged ending the war and complying 
with Council resolutions. Iran rejected the Saudi-sponsored peace plan. See nn. 11.192-94. 

725. S.C. Res. 540 (1983), in Wellens 451. In approving the resolution, the USSR said it would firmly oppose 
armed intervention in the Gulf for any reason, including protecting freedom of navigation. The GCC supported the 
resolution, the first time it had gone on record supporting the freedom of navigation principle. The United States, 
supporting the resolution, reemphasized its freedom of navigation policy when Iran threatened to restrict Gulf 
shipping or to close the Strait of Hormuz. See also nn. 11.216-18 and accompanying text. 

726. An Arab League Summit the same month had strongly condemned attacks on Kuwaiti and Saudi tankers. See 
nn. 11.250-56 and accompanying text. 

727. See nn. 11.252-55 and accompanying text. 

728. S.C. Res. 552 (1984), in Wellens 473. A GCC draft resolution would have branded Iran as an aggressor. See nn. 
11.258-59 and accompanying text. 

729. S.C. Res. 582 (1986), in Wellens 452; see also UN Charter, art. 33; n. 11.300 and accompanying text. 

730. S.C. Res. 588 (1986), in Wellens 453; see also n. 11.308 and accompanying text. 

731. S.C. Res. 598 (1987), in Wellens 454; see also UN Charter, art. 33; nn. 11.376-77 and accompanying text. 

732. See n. 11.377 and accompanying text. 

733. SiMMA621;nn. 11.378, 405,414-15 and accompanying text. 

734. See nn. 11.425-28 and accompanying text. 

735. S.C. Res. 612 (1988), in Wellens 456. 

736. See nn. 11.482-83 and accompanying text. 

737. S.C. Res. 619, 620 (1988); 631, 642 (1989), 651, 671, 676 (1990), 685 (1991), in Wellens 456-60; see also nn. 
11.484-87 and accompanying text. 

738. See Table 8: Vetoes in the Security Council, 16 February 1946-1 August 1997, Table 9, Summary of Vetoes in the 
Security Council 16 February 1946-August 1997, in Bailey & Daws, n. 657, 231-39. See also id. 201, 209-10. 

739. Table 14: Decisions and Vetoes by Security Council on Substantive Proposals Regarding Peace and Security, in 
Bailev, n. 663, 211; see also id. 209-10. 

740. Bailey, n. 663, 242. 

741. See nn. 240, 247-48 and accompanying text. 

742. UN Charter, art. 28(1); see also Goodrich et al. 232-33; Simma 472-75. 

743. As late as the 1990-91 Gulf War, technology available at the United Nations was less than robust. See generally 
Walker, Maritime Neutrality 161 n.35. 

744. UN Charter, arts. 11(3), 32, 34, 99; see also Goodrich et al. 127-29, 247-59, 265-70, 589-92; Simma 250-51, 
515-21, 1048-57. 

745. Goodrich et al. 592-93. 

746. UN Charter, arts. 33, 52; see also nn. 653, 800-20 and accompanying text. 

747. See nn. 663-68 and accompanying text. 

748. UN Charter, art. 27(3); see also Bailey & Daws, n. 657, 250-51; Goodrich et al. 229-31; Simma 455-62. 

749. Bailey & Daws, n. 657, 250-51; Goodrich et al. 230-31; Simma 447-55. 

750. See, e.g., n. 705. 

751. See nn. 664-68, 671-90, 694-707, 715-33 and accompanying text. 

752. UN Charter, arts. 25, 48; see also nn. 700-07 and accompanying text. 

753. See nn. 651-60 and accompanying text. 

754. See nn. 700-01 and accompanying text. 

755. See nn. 11.98, 153-56, 216-18, 250-59, 378, 405, 414-15, III.5-6, 10-12, 18 and accompanying text. 



World Public Order 229 



756. See nn. 11.482-83 and accompanying text. Iran also accepted UN good offices, and Iraq rejected them, early in 
the war for extricating 70 merchantmen trapped in the Shatt. See nn. 11.153-56 and accompanying text. 

757. See nn. 11.153-54, 193-95, 377, III.6, 9 and accompanying text. 

758. See nn. 651-60 and accompanying text. 

759. See n. 751 and accompanying text. 

760. See nn. 651-52 and accompanying text. 

761. See n. 585 and accompanying text. 

762. UN Charter, arts. 10-14; see also n. 69 and accompanying text. 

763. See Bailey & Daws, n. 657, 232. 

764. UFP Resolution, n. 20. 

765. See S.C. Res. 1 19-20 (1956), 129 (1958), 157 (1960), 303 (1971), in Wellens 31, 36, 69, 73, 432. 

766. Bailey, n. 663, 209, 264-65, (noting UK objections but saying sponsors' intention was that if the Council was 
unable to fulfil its primary responsibility, "the Assembly should be entitled to recommend enforcement measures," not 
order them, since UN Charter, art. 10 only allows nonmandatory Assembly recommendations); Castenada, n. 22, 
81-88 (Resolution not valid legally but valid from a political point of view); Higgins, The Development, n. 56, 175; 
Tucker, The Interpretations, n. 189, 33-38. 

767. G.A. Res. 498 (1951), in 13 Whiteman 575; see also Castenada, n. 22, 89-90. 

768. G.A. Res. 500 (1951), UN GAOR, 5 th Sess., Supp No. 20A, at 2, UN Doc A/1775/Add.l (1951); see also 
Castenada, n. 22, 90. 

769. G.A. Res. 997 (1956), in 3 Whiteman 1112, "repeatedly condemned the Soviet [Hungarian] military 
intervention in strong terms," once invoking UN Charter, art. 2(4), urging USSR forces' withdrawal; Castenada, n. 
22, 8-116; see also Higgins, The Development, n. 56, passim. 

770. G.A. Res. 1 127 (1956) "repeatedly condemned the Soviet [Hungarian] military intervention in strong terms," 
once invoking UN Charter, art. 2(4), urging USSR forces' withdrawal. Castenada, n. 22, 88-116; see also Higgins, The 
Development, n. 56, passim. 

771. Castenada, n. 22, 104-16; see also Higgins, The Development, n. 56, 175; n. — and accompanying text. 

772. Castenada, n. 22, 107-09 (footnotes omitted). 

773. Walker, Crisis Over Kuwait 29-44. 

774. UN Charter, arts. 25, 48; see also n. 652 and accompanying text. 

775. See n. 69 and accompanying text. 

776. UN Charter, art. 103; see also n. 10 and accompanying text. 

777. See generally, e.g., 1-4 Higgins, United, n. 599; United Nations, The Blue Helmets: A Review of United 
Nations Peacekeeping (2d ed. 1990); Peace-Keeping, n. 11.484, 565. 

778. Western Sahara, 1975 ICJ 12, 31-33; Texas Overseas Petrol, v. Libyan Arab Repub., 17 ILM 1, 28-31 (Arb. 
1977); Castenada, n. 22, ch. 17; Restatement (Third) § 103(2)(d) & cmt. c, r.n. 3; Schachter, International Law, n. 
358, 85-94; n. 69 and accompanying text. 

779. See, e.g., Final Act of Diplomatic Conference on Reaffirmation & Development of International 
Humanitarian Law Applicable in Armed Conflicts, June 10, 1977, 11 1, Schindler & Toman 605, 607-08. 

780. See, e.g., Castenada, n. 22, 88-100 (Korea, Congo); Higgins, The Development, n. 55, 222-37 '; Peace-Keeping, 
n. 11.484, 577. 

781. UN Charter, arts. 25, 48; see also n. 652 and accompanying text. 

782. See n. 533 and accompanying text. 

783. UN Charter, art. 12(1); S.C. Res. 582, 1 8 (1986), in Wellens 452, 453; see also Goodrich et al. 129-33; Simma 
254-62. 

784. E.g., the General Assembly properly rejected Iraqi overtures during the 1990-91 Gulf War while the Council 
was seized of the issue. Walker, Crisis Over Kuwait 34. 



230 The Tanker War 



785. G.A. Res. 3067 (1973), in 1 3 ILM 227 (1974). This was the procedure followed for the 1958 LOS Conventions. 
G.A. Res. 1105 (1957), in Franklin 255; see also Carl M. Franklin, Introduction, in id. 1, 2. 

786. Introductory Note to Final Act of UN Conference on Prohibitions or Restrictions on Use of Certain 
Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, Oct. 
10, 1980, Schindler & Toman 177. 

787. See nn. 725, 729, 735 and accompanying text. 

788. See n. 733 and accompanying text. 

789. UN Charter, art. 43. Id., art. 45 requires Members to have air force contingents available for urgent use. Id., art. 
44 provides that if a Member not represented on the Council is called on for forces, it would be allowed to participate in 
Council decisions concerning employment of its forces. See also Goodrich et al. 317-29; Simma 636-43. 

790. Goodrich et al. 319-24; Simma 639, 648. 

791. UN Charter, arts. 46-47; see also Goodrich et al. 329-33; Simma 643-51. 

792. Goodrich et al. 324, 332; Simma 648. 

793. Trygve Lie, the first UN Secretary-General, suggested a UN Guard Force recruited by the Secretary-General 
and placed at the disposal of the Council or Assembly. He later suggested an International Brigade for Korea and a UN 
Legion when the Assembly passed the UFP Resolution, n. 20. Goodrich et al. 324-25; TryGve Lie, in the Cause of 
Peace 192-93 (1954); Stephen M. Schwebel,/! United Nations "Guard" and a United Nations "Legion," in William N. 
Frye, A United Nations Peace Force 195 (1957). 

794. Walker, Crisis Over Kuwait 48-50. 

795. Castenada, n. 22, 57, 60, 90, 93-94, 96. 

796. Higgins, The Development, n. 56, 251-53. 

797. See nn. 703, 708, and accompanying text. 

798. See nn. H.484-87, III. 21 and accompanying text. 

799. The Secretary-General also attempted mediation and called on UN Members for new approaches. See nn. 
11.99, 190-91, 269, 376 and accompanying text..l57 

800. UN Charter, art. 52; see also Goodrich et al. 355-64; Simma 683-722; nn. 303-07 and accompanying text. 

801. UN Charter, art. 53; see also Goodrich et al. 364-68; Simma 730-38, 748-50. 

802. Compare UN Charter, art. 54 with id., art. 51; see also Goodrich et al. 368-69; Simma 753-57; nn. 350-56 and 
accompanying text. 

803. Pact of League of Arab States, n. 11.31. League members also belong to a regional self-defense organization 
authorized under UN Charter, art. 51. Treaty of Joint Defence & Economic Co-operation Between Arab States, with 
Military Annex, n. 11.31. See also Hassouna, n. 11.31, ch. 1; Khadduri, The Gulf War, n. 11.31, 140; MAcDoNALD.n. 
11.31; Simma 701; Bebr, n. 11.31, 181; Khadduri, The Arab League, n. 11.31; Walker, A nticipatory, n. 289, Liber 
Amicorum 388-89, 31 Cornell Int'l L.J. 363-64; nn. 11.31, III. 295-97, 307 and accompanying text. 

804. OAS Charter, n. 47. Like the Arab League, the OAS Charter has a UN Charter, art. 51 regional self-defense 
arrangement, the Rio Treaty, n. 47. For history of inter- American relations in the Pan American Union, OAS and Rio 
Treaty contexts, see generally M. Margaret Ball, The OAS in Transition (1969); Gordon Connell-Smith, The 
Inter-American System (1966); Goodrich^ al. 358-62; Simma 699-700; O. Carlos Stoetzer,The Organization of 
American States (2d ed. 1993); Ann Van Wynen Thomas & A.J. Thomas, The Organization of American States 
(1963); Charles G. Fenwick, The Inter-American Regional System: Fifty Years of Progress, 50 AJIL 18 (1965); Walker, 
Anticipatory, n. 289, Liber Amicorum 387, 31 Cornell Int'l L.J. at 360-61; see also n. 11.47 and accompanying text. 

805. Charter of Organization of African Unity, May 25, 1963, 479 UNTS 39; see also Bowman & Harris 277; 
Goodrich et al. 356, 358, 362-63; Simma 700. 

806. These have been considered for invitations to attend Assembly meetings. Goodrich et al. 356-57. 

807. E.g., NATO; see also n. 11.437 and accompanying text. 

808. Goodrich et al. 355-64. 



World Public Order 231 



809. Joyner, Reflections, n. 288, 135-38; Moore, Grenada, n. 288, 153-59; Kenneth W. Dam, US Deputy Secretary of 
State, Statement to House Committee on Foreign Affairs, Nov. 2, 1983, extracted in Marian Nash Leich, Contemporary 
Practice of the United States Related to International Law, 78 AJIL 200 (1984). 

810. See nn. 11.31, 111.295-97, 307 and accompanying text. 

811. Simma 706, see also nn. 11.21-31, 80, 84, 159-71, 111.298-99 and accompanying text. 

812. Simma 706; see also nn. 11.388-89, 437-45, 493, 539-40 and accompanying text. 

813. The ICO, formed by Charter of the Islamic Conference Organization, n. II. 1 57, is an inter-regional conference 
with 44 members in two continents, with dispute settlement authority. Id., arts. 2(b), 12,914 UNTS 111. Simma 706. 

814. See nn. 11.93-95, 184-85, 192-94, 248, 256, 283-84, 405, 477, 538 and accompanying text. 

815. See nn. II. 21-31, 80, 84, 159-71, 543-45, 111.298-99 and accompanying text. 

816. See nn. 11.388-90, 437-45, 493, 541-42, III.812 and accompanying text. 

817. See nn. 11.157, 170, 186, 208, 321, III.813 and accompanying text. 

818. See nn. 11.84, 93-94, 260, 271, 375, 378, 478-79, 541-42 and accompanying text. 

819. The Community voted to support Britain in the Falklands/Malvinas war by suspending imports from 
Argentina during the conflict; this came within its regional competence. See n. 259 and accompanying text. The EC 
treaty arrangements have been concerned primarily with European economic integration. See generally Treaty for 
Establishment of the European Economic Community, Mar. 15, 1957, 298 UNTS 3 (Treaty of Rome); Treaty 
Establishing the European Atomic Energy Community, Mar. 25, 1957, id. 167, which followed the pattern of 
European Coal & Steel Community Treaty & Convention, Apr. 18, 1951, 261 id. 140; Treaty Establishing Single 
Council & Single Commission of the European Communities, Apr. 8, 1965, in 4 ILM 776 (1965); Single European Act, 
Feb. 17 & 28, 1986, 25 id. 506 (1986); Maastricht Treaty, n. 11.437. The Maastricht Treaty has provisions for a common 
defense and foreign relations policy, although for now defense matters will be arranged through the WEU; see nn. 
11.388, 437 and accompanying text.. Maastricht Treaty, art. J, 31 ILM at 323-27; see also Declaration on Voting in the 
Field of the Common Foreign & Security Policy, Feb. 7, 1992, id. 369; Declaration on Practical Arrangements in the 
Field of the Common Foreign & Security Policy, Feb. 7, 1992, id. 370; Declaration on Use of Languages in the Field of 
the Common Foreign & Security Policy, Feb. 7, 1992, id. The Single European Act, art. 30, 25 id. at 517-18, also 
pledged EC members' support for formulating and implementing a European foreign policy. See also Marc Weller, The 
International Response to the Dissolution of the Socialist Federal Republic of Yugoslavia, 86 AJIL 659, 571-607 (1992); 
Walker, Integration and Disintegration 14-17. The Treaty of Amsterdam Amending Treaty on European Union, the 
Treaties Establishing the European Communities and Certain Related Acts, Oct. 2, 1997, 1997 O.J. 1, now being 
circulated for ratification, may be a step backward in implementing a common foreign and security policy. See 
generally Daniel T. Murphy, The European Union's Common Foreign and Security Policy: It Is Not Far from Maastricht to 
Amsterdam, 31 Vand. J. Transnatl L. 871 (1998). If the Treaty of Amsterdam is ratified as expected, provisions of all 
the treaties will be renumbered. See generally Consolidated Version of Treaty on European Union & Consolidated 
Version of Treaty Establishing the European Communities, Mar. 25, 1957, Feb. 7, 1992, Oct. 2, 1997, in 37 ILM 56 
(1998) (Consolidated Version); Youri Devuyst, Introductory Note, id. 

820. See nn. 11.84, 260, 378, 478-79 and accompanying text. 

821. Introductory Note, Schindler & Toman 605. 

822. Introductory Note, id. Ill . 

823. See nn. 11.216, 300, 308, 377, III.725, 729, 735 and accompanying text. 

824. S.C. Res. 582 H 4 (1986) (exchange of prisoners in cooperation with ICRC), in Wellens 452, 453. 

825. See nn. 11.153-56, III. 722 and accompanying text. 

826. See generally Chapters V- VI. 

827. National seafarer unions, in opposing arming merchantmen, also may have influenced national 
decisionmaking. See nn. 11.269, 359 and accompanying text. 

828. Portions of this Part were published as Walker, Maritime Neutrality in the Charter Era and were delivered as a 
paper in Panel on National Security at the 17th Annual Seminar, New National Perspectives on the Law of the Sea 
Convention, sponsored by the University of Virginia School of Law Center for Oceans Law and Policy, Washington, 
D.C., Mar. 19, 1993. 

829. Philip C. Jessup, Neutrality: Today and Tomorrow 156 (1936). 



232 The Tanker War 



830. Id. 16, quoting Philip C. Jessup & Francis Deak, Neutrality: The Origins xiii-xiv (1935). 

831. E.g., McDougal & FELiciANOch. 5; Nils orvik, The Decline of Neutrality 1914-1941 ch. 6(2ded. 1971); 
Williams, n. 22, consider a multifactor approach to neutrality law and its place in the LOAC. More conventional 
analyses include, e.g., Bowett, Self-Defence ch. 8; Brownlie, Useof FoRCEpassim ; Erik Castren, The Present Law 
of War and Neutrality ch. 3 (1954); Colombos chs. 16-21; Dinstein, chs. l.D, 6.D; Jurg Martin Gabriel, The 
American Conception of Neutrality After 1941 (1988); Morris Greenspan, The Modern Law of Land Warfare 
chs. 13-14 (1959); 3 Hyde, Tit. K; Kelsen, The Collective, n. 358, 154-71; Kelsen, Principles of International 
Law 154-73 (2d ed. Robert W. Tucker ed. 1967); NWP 1-14M Annotated, ch. 7; NWP 9A Annotated, ch. 7; 2 
O'Connell, Law of the Sea ch. 30; 2 Oppenheim, Part III; John F.L. Ross, Neutrality and International 
Sanctions: Sweden, Switzerland and Collective Security (1989); Stone chs. 13-19, 21; Tucker chs. 6-12; Michael 
Bothe, Neutrality at Sea, ch. 6 in Dekker & Post; Bothe, Neutrality in Naval Warfare: What Is Left of Traditional Law}, in 
Humanitarian Law of Armed Conflict: Challenges Ahead 387 (AstridJ.M. Delisson& Gerard J. Tanjaeds. 1971); 
Deak, Neutrality, n. 10, 137; Andrew Gioia, Neutrality and Non-Belligerency, in International Economic Law, n. 609, 
51; Gioia & Natalino Ronzitti, The Law of Neutrality: Third States' Commercial Rights and Duties, ch. 7 in Dekker & 
Post; Mark W. Janis, Neutrality, ch. 6 in Robertson; Titus Komarnicki, The Place of Neutrality in the Modern System of 
International Law, 80 RCADI 395 (1952); J.F. Lalive, International Organizations and Neutrality, 24 BYBIL 72 (1972); 
McNeill, Neutral Rights, n. 11.354; Patrick M. Norton, Between the Ideology and the Reality: The Shadow of the Law of 
Neutrality, 17 Harv. Int'l L.J. 249 (1976); Dietrich Schindler, Transformations in the Law of Neutrality Since 1945, in 
Humanitarian Law 367; Wiswall, Neutrality, n. 11.295. 7 Hackworth ch. 24; 11 Whiteman ch. 33 give more modern 
digest treatment. 

832. Castren, n. 831,427. 

833. Janis, n. 831, 148, citing NeillH. Alford, Jr., Modern Economic Warfare 326 (Nav. War C. IntlL. Stud. 
v. 56, 1 967); see also Norton, n. 831, 249, citing Richard R. Baxter, Humanitarian Law or Humanitarian Politics? The 1974 
Conference on Humanitarian Law, 16 Harv. Int'l L.J. 1,2 (1975) (Neutrality has had a "juridical half-life" since World 
War II.) 

834. Janis, n. 831, 148, citing C.G. Fenwick, Is Neutrality Still a Term of Present Law?, 63 AJIL 102 (1969). 

835. Cf UN Charter, preamble, arts. 2(3)-2(4); see also nn. 47-157 and accompanying text. 

836. Gabriel, n. 831, 69; see also Orvik, n. 831, 251-56. 

837. Pact of Paris, n. 160, arts. 1 -2, 46 Stat, at 2345-46, 94 LNTS at 63; see also nn. 160-63 and accompanying text. 

838. See San Remo Manual 68, Ml 13(d), 14-26, 29-32, 34-36, 67-71, 74-75, 86-88, 92-94, 99, 106, 109, 111,113-16, 
118-20, 122-24, 126-27, 130, 132-34, 146-58. 

839. International Law Association, International Committee on Maritime Neutrality, Neutrality and Naval 
Warfare (Michael Bothe, rptr.), in International Law Association, Report of the Sixty-Fifth Conference: Cairo, Egypt 
163 (1993); International Law Association, International Committee on Maritime Neutrality, Neutrality and Naval 
Warfare (Michael Bothe, rptr.) in International Law Association, Report of the Sixty-Sixth Conference: Buenos Aires, 
Argentina 570 (1994); International Law Association, International Committee on Maritime Neutrality, Neutrality 
and Naval Warfare (Michael Bothe, rptr.; Wolff Heintschel von Heinegg, alt. rptr.), in International Law Association, 
Report of the Sixty-Seventh Conference: Helsinki, Finland 367 (1996); Helsinki Principles, completed at the 1998 
ILA meeting in Taipei, Taiwan. For a critique of the Cairo report, see Walker, Maritime Neutrality. 

840. E.g., Colombos § 759; McDougal & Feliciano 197-436; 2 O'Connell, Law of the Sea 1141-42; Bothe, 
Neutrality at Sea, n. 831, 205; Thomas A. Clingan, Jr., Submarine Mines in International Law, in Robertson 351, 352 
(argument that neutrality no longer exists is specious); Gioia & Ronzitti, n. 831, 223; Lowe, The Commander's, n. 318, 
134-38; McNeill, Neutral Rights, n. 11.354, 642-43; Ronzitti, The Crisis, 6-12; Williams, n. 22, 47-48; Wiswall, 
Neutrality, n. 11.295, 619. Even commentators arguing that the force of the law of neutrality has been greatly 
diminished do not say it has disappeared in the Charter era. See, e.g., Alford, n. 833, 326; Janis, n. 83 1, 1 53; Norton, n. 
831,311. 

841. See, e.g., Jessup, Neutrality, n. 829; Jessup & Deak, n. 830; W. Alison Phillips & Arthur H. Reede, 
Neutrality: The Napoleonic Period (1936); Edgar Turlington, Neutrality: Its History, Economics and Law 
(1936). 

842. See Pact of Paris, n. 160; UN Charter, art. 103; TIF 430-31; nn. 160-63, 837 and accompanying text. 

843. See nn. 160-63 and accompanying text. 

844. See n. 829 and accompanying text. 



World Public Order 233 



845. E.g., Convention Relative to Treatment of Prisoners of War, July 27, 1929, arts. 69-70, 72-73, 77, 47 Stat. 202 1, 
2053-57, 118 LNTS 343, 385-86, superseded by Third Convention, arts. 4(b)(2), 10. The 1929 Convention also 
continued usage of the term as well as referring to "non-belligerents." 

846. Convention on Maritime Neutrality; TIF 434. See also Convention Regarding Rights of Neutrals at Sea, July 
22, 1854, 10 id. 1105, still in force among Nicaragua, Russia and the United States. TIF 431. 

847. Stockholm Declaration. 

848. Ove Bring, Commentary, in Law of Naval Warfare 839, 841. 

849. Budapest Articles of Interpretation: Final Text, arts. 1-7, in International Law Association, Report of the 38th 
Conference 67-68 (1935). 

850. E.g., Lord Chancellor Viscount Sankey, in 95 Pari. Deb., H.L. (5th ser.) cols. 1007, 1043. On the other hand, 
Secretary of State Stimson took the opposite view then. See Stimson, The Pact, n. 161, vii-viii. 

851. Jessup, Neutrality, n. 829, 121-23; Hersch Lauterpacht, The Pact of Paris and the Budapest Articles of 
Interpretation, 20 Trans. Grotius Socy 178 (1935). 

852. US Secretary of War Henry L. Stimson testimony, Jan. 29, 1941, Hearings Before the House Committee on 
Foreign Affairs on H.R. 1776 Regarding the Lend-Lease Bill, 77th Cong., IstSess. 89-90(1941). Stimson, ThePact, n. 161, 
vii-viii, expressed the same view in 1932; Quincy Wright, The Transfer of Destroyers to Great Britain, 34 AJIL 680, 
685-89 (1940), made an analogous argument after the 1940 destroyers-bases deal, citing Budapest Articles, n. 849, and 
the Harvard Draft Convention on Aggression, n. 130. 

853. US Secretary of State Cordell Hull testimony, Jan. 15, 1941, in id. 9-10; Robert H. Jackson, Address to the 
Inter-American Bar Association, 35 AJIL 349 (1941). 

854. Budapest Articles, arts. 4(b)-4(d), n. 849, 67. 

855. See nn. 396-417 and accompanying text. 

856. Lend-Lease Act, ch. 11, 55 Stat. 31. 

857. Brownlie, International Law 5, citing The Scotia, 81 US (5 Wall.) 170, 181-82 (1872). Most Lend-Lease 
agreements were not formalized until after the United States was at war with the Axis, but at least two were in force 
between the United States and countries at war with Axis States before then. Lend-Lease Agreement, Aug. 9, 1941, 
Neth.-US, 10 Bevans 140; Lend Lease Agreement, Nov. 21, 1941, Ice.-US, 58 Stat. 1455. Informal arrangements had 
undoubtedly already begun, e.g., with Great Britain. See Preliminary Agreement, Feb. 23, 1942, UK-US, arts. 1-2, 56 
id. 1433-34. See also Walker, Anticipatory Collective Self-Defense, in Liber Amicorum 379, 31 Cornell Int'l L.J. at 347, 
referring to Robert H. Sherwood, Roosevelt and Hopkins: an Intimate History 308, 310-11 (1950 rev. ed.) and an 
informal UK-US defense arrangement. 

858. Brownlie, International Law 5; 1 Oppenheim § 10, at 28. 2 id. § 292Aa, 639 says US practice was resurrected 
older custom that had not died out. The United States negotiated Lend-Lease agreements with States not at war with 
the Axis before it went to war. To the extent that these agreements benefited the United States after it was at war, and 
before the other State declared war, the other State became a nonbelligerent. Examples of nonbelligerent provisions 
included reciprocal commodity pledges and pledges to supply the United States with "defense articles, strategic or 
critical materials, or defense information." See, e.g., Lend-Lease Agreement, Oct. 1, 1941, Brazil-US, 5 Bevans 905, 
906-07. The United States had Lend-Lease agreements with 36 countries, including the USSR. See \3>id. 64. As citing 
Bevans indicates, some agreements were not published and were perhaps not available for consideration as practice 
until 1968-76, when 1-13 id. were published. 

859. Exchange of Notes, Sept. 2, 1940, UK-US, 54 Stat. 2405, 203 LNTS 201, supplemented by Agreement 
Relating to Defense of Newfoundland, Mar. 27, 1941, UK-US, 55 id. 1560. Bowett, Self-Defence 166 characterizes 
Lend-Lease and the destroyers-bases deal as violating international law in 1958 when he wrote. When viewed in the 
context of trends, particularly the law of self-defense as then stated, his view is not the law now, and Bowett might 
have concluded differently in 1958 if all Lend-Lease agreements had been published then. See n. 589 and 
accompanying text. 

860. McDougal & Feliciano 425. 

861. ORViK,n. 831, 194-215. 

862. Id. 587. 

863. See nn. 857-58 and accompanying text. 



234 The Tanker War 



864. Castren, n. 831, 450-51, listing Bulgaria, China, Hungary, Italy, Portugal, Romania, Spain and Turkey 
besides the United States, which pursued these policies, without stating which side Spain favored. Although 
Francisco Franco's Spain played both sides, throughout the war it supported the Axis, primarily Germany, providing 
ports for submarine support, infra-red, radar and sonar listening stations, the Blue Division for the USSR front, 
civilian labor in Germany, war material, credits and other services. These countries signed a Treaty of Friendship on 
March 31, 1939, and a Secret Protocol on February 12, 1943, which was not implemented; US Department of State, 
The Spanish Government and the Axis (1946); Paul Preston, Franco: A Biography, chs. 13-21. Italy later joined the 
Axis as a cobelligerent. 

865. Harvard Draft Convention on Aggression, arts. 1-2, 6, 10, 12-13. 

866. Id., Comment, 33 AJIL Supp. 879-85 (1939). See also id., Comment, 33 AJIL Supp. 902 (1939). Bowett, 
Self-Defence 161 says the Convention principles are de lege ferenda. 

867. Jessup, Neutrality, n. 829, 7, 160-62, 181, referring to Jessup & Dear, n. 830, 44, 109, 117, 160; Phillips & 
Reede, n. 841, ch. 4. The United States was among the maritime powers recognizing the 1780 armed neutrality; that of 
1 800 collapsed with the Danish fleet's defeat. Colombos § § 700-0 1 ; 2 Oppenheim § 290. Bilateral treaties, no longer in 
force, restated these principles during the 19th century. See, e.g., Treaty of Peace, Friendship, Commerce & 
Navigation, Dec. 12, 1828, Brazil-US, art. 22, 8 Stat. 390, 395; TIF 29. 

868. Wright, The Transfer, n. 852, 689, cited the Convention for legitimacy of the destroyers-bases deal, n. 859 and 
accompanying text. 

869. See generally 1 Samuel Eliot Morison, History of United States Naval Operations During World War 
II: The Battle of the Atlantic: September 1939-May 1943, at 56-113(1947). 

870. See n. 857 and accompanying text. 

871. See nn. 11.350-56, 447, 470-71 and accompanying text. 

872. See nn. 11.359-62 and accompanying text. 

873. Castren, n. 831,434,651. 

874. Tucker 199 n.5, citing Stone 383; Castren, n. 831,452; Dezk, Neutrality, n. 10, 153; Josef Kunz, Neutrality and 
the European War 1939-1940, 39 Mich. L. Rev. 747-54 (1941). 

875. Tucker 199 n.5. 

876. See nn. 591-616, 646-49 and accompanying text. 

877. See nn. 593-94 and accompanying text. 

878. E.g., McDougal & Feliciano 492, 499 (indirect aid to North Korea, PRC, the subjects of Security Council 
and General Assembly resolutions); Norton, n. 831, 263-67, 294. 

879. Norton, n. 831, 257-62, 295-97, 298-301, 304-05; Ronzitti, The Crisis 4. 

880. Norton, n. 831, 262-63. The short duration of the conflicts was a factor. 

881 . E.g., E.C. Council Regulation, n. 259; E.C.S.C. Council Decision, n. 259; Statement Concerning Assistance to and 
Sales to Argentina, n. 259; 3 Cordesman & Wagner 260-63, 270, 280-8 1, 331 -32; see also n. 259 and accompanying text. 

882. Gioia & Ronzitti, n. 831, 226-31. 

883. For a record of other conflicts through 1975, see Norton, n. 830, 268-75 (Vietnam, 27 civil wars); see also 
Castren, n. 831,452. 

884. To the extent that these older treaty obligations conflict with Charter obligations, the Charter prevails. Deak, 
Neutrality, n. 10, 143, citing UN Charter, art. 103. The later in time rule states the same principle for newer agreements 
to assist an aggression victim with aid. Vienna Convention, art. 30. To the extent that the Charter, and action pursuant 
to it, is considered customary law, or perhaps jus cogens, later custom or;us cogens would trump an inconsistent earlier 
customary obligation or perhaps an older treaty. See n. 10 and accompanying text. 

885. See n. 69 and accompanying text. 

886. See nn. 591-649 and accompanying text. 

887. See n. 259 and accompanying text. 

888. See nn. II. 147, 295, 348, 350-55, 361-62, 437-41 , 446-56, 469-7 1 , 494-95, 498, III. 648 and accompanying text. 

889. See nn. 485-590 and accompanying text. 






World Public Order 235 



890. Lalive, n. 831, 78-81; see also Castren, n. 831, 434; nn. 69, 651-52 and accompanying text. 

891. UN Charter, art. 2(5); Quincy Wright, The Outlawry of War and the Law of War, 47 AJIL 365, 371-72 (1953). 
Permanently neutral countries have supported UN action. Gabriel, n. 831, 132-33 (Swedish, Swiss economic aid 
and/or support during Korean War); Ross, n. 831, chs. 7-9 (Swedish, Swiss actions against Rhodesia). 

892. Jordan was the chief applicant, but 20 other States invoked UN Charter, art. 50. Schrijver, n. 609, 149-50; see 
also Walker, Crisis Over Kuwait 37-38. 

893. Compare S.C. Res. 661 (1990) (Iraq embargo), in Wellens 528, with S.C. Res. 757, 760 (1992), in 31 ILM 1453, 
1 46 1 ( 1 992) (former Yugoslavia embargo). S.C. Res. 665 ( 1 990), in Wellens 530, called for enforcing the Iraq embargo. 
S.C. Res. 670 (1990), in id. 534, directed an end to civil air commerce with Iraq, except for humanitarian cargoes. S.C. 
Res. 787 (1992), in 31 ILM 1481 (1992), expanded on S.C. Res. 724 (1991), in Wellens 51, and called on States to use 
individual and collective measures to halt inbound and outbound shipping to or from the former Yugoslavia. 
Economic sanctions have been imposed for the Angola, Haiti, Liberia, Libya and Somalia crises. A Sanctions 
Committee was appointed in all cases except Liberia. Schrijver, n. 609, 132-43, 151-54. 

894. S.C. Res. 724 (1991), in Wellens 51, decided on a limited embargo. The same procedure was followed for 
South Africa. S.C. Res. 418 (1977), 569 (1985), 591 (1986), in id. 218, 228, 230. Arms and other commodity embargoes 
were also imposed in the Angola, Haiti and Libya crises. Schrijver, n. 609, 129-32, 146-47; n. 708 and accompanying 
text. 

895. Rhodesia also illustrates the interplay of General Assembly and Security Council resolutions. See generally 
O'Connell, The Influence 137-38, 174-75; Schrijver, n. 609, 129-30; Walker, State Practice 142-43; nn. 695-707 and 
accompanying text. 

896. Castren, n. 831,435. 

897. UN Charter, art. 39; see also nn. 651-56 and accompanying text. 

898. "The unusual situation [contemplated by the Charter for applying the law of neutrality has] bec[o]me the 
rule — The originally anticipated interstitual situation in which assumption of a neutral status might be permissible 
under the Charter has arisen ... in every international armed conflict of the last three decades[, 1945-75]." Norton, n. 
831,252. 

899. See Shrijver, n. 609, 135-44; nn. 695-708, 893-95 and accompanying text. 

900. See nn. 763-73 and accompanying text. Williams, n. 22, 15, seems to overemphasize importance of the UFP 
Resolution process as a law-promulgating mechanism; see also McDougal & Feliciano 429-35. 

901 . See Taubenfeld, International, n. 285, 393-94 (relative success of General Assembly call for embargo against the 
PRC). 

902. North Sea Continental Shelf (W.Ger. v. Den., W.Ger. v. Neth.), 1969 ICJ 4, 43 (North Sea Continental Shelf 
Cases); Brownlie, International Law 5; 1 Oppenheim § 10, at 30-31; Restatement (Third) § 102 cmt. b & r.n. 2. 

903. Castren, n. 831, 433-34. 

904. UN Charter, arts. 43-47. The MSC was a Cold War casualty. See nn. 789-96 and accompanying text. 

905. Walker, Crisis Over Kuwait 48-50. 

906. Malcolm W. Cagle & Frank A. Manson, The Sea War in Korea 28 1 -83, 299-300, 304, 353-57, 370-73 (1957); 
James A. Field, Historyof United States Naval Operations: Korea 42, 54, 58-59, 61, 126, 158, 349, 395, 444 (1962); 
Walker, State Practice 126. 

907. See, e.g., Michael R Gordon, In Test of Serbia Embargo, U.S. Presses to Seize a Ship, N.Y. Times, Feb. 23, 1993. 
The UN command center for peacekeeping operations has been relatively spartan, running on a shoestring budget 
from the UN New York headquarters, although that could change. Nevertheless, when compared with modern 
national command centers, the Organization has a way to go and is likely to rely on the agency concept in the future. 
Gioia, Neutrality, n. 831, 14, says the Council cannot delegate powers to a single State. The record of Council practice 
appears to be otherwise. 

908. Cf. TIF 428-29. 

909. First Convention, art. 8 ("neutral powers"); Second Convention, arts. 11,16 (same; also "neutral warship or a 
neutral aircraft"); Third Convention, arts. 4(b)(2), 10 ("neutral or non-belligerent powers," "neutral power"); Fourth 
Convention, arts. 4, 9 ("neutral," "belligerent"); see also 1 Pictet 86-98; 2 id. 78-82, 112-16; 3 id.69-70, 121-22; 4 
idAS-Sl, 8-89. Moreover, Protocol I, arts. 2(a), 9(2), 22(2), 30(3), 37(l)(d), 39(1), 64(1) consistently uses phrases, <?.£., 
"neutral or other State not party to the conflict." See also Deak, Neutrality n. 10, 443; Norton, n. 83 1 , 254-56. "Neutral" 



236 The Tanker War 



or "neutrality" have been employed in post- World War II armistices and other settlements. See, e.g., Agreement 
Concerning Military Armistice in Korea, July 27, 1953, arts. 36-50, 4 UST 234, 248-53; Temporary Agreement 
Supplementary to Armistice Agreement in Korea, July 27, 1953, H 1, id. 346; Declaration on Neutrality of Laos, July 
18, 1962, 14 id. 1 105; Agreement on Ending the War & Restoring Peace in Viet-Nam, Jan. 27, 1973, art. 20, 24 uf. 115, 
130. 

910. S.C. Res. 540 (1984), 598 (1986), 666, 670, 674, 678 (1990), 686 (1991), in Wellens 451, 454, 531, 534-39, 
540-42; see also Walker, Crisis Over Kuwait 36-37. The Council also cited to them during the Yugoslavia crisis. See, e.g., 
S.C. Res. 764, 780 (1992), in 31 ILM 1465, 1476 (1992). 

911. S.C. Res. 552 (1984), in Wellens. 473. 

912. Norton, n. 831, 256, analyzing UN Charter, art. 103, points out that the then current 1976 TIF still listed the 
1907 Hague Conventions, replete with citations to neutrality, that the United States has ratified, and which is binding 
unless expressly superseded by later treaties. This is still the case. TIF 432-34. There have been few accessions since 
World War II. See Law of Naval Warfare 93-95, 111-13, 129-30, 149-50, 173-74, 193-94, a compilation during the 
Tanker War. State succession to treaties may mean the Conventions have more applicability than the Law of Naval 
Warfare lists would suggest. See generally Symposium, Treaty Succession; Walker, Integration and Disintegration. 

913. Nicaragua Case, 1986 ICJ at 31-38, 91-135; see also North Sea Continental Shelf Cases, 1969 ICJ 28-29, 36-45; 
Baxter, Treaties, n. 139, 36. Norton, n. 831, 256-57, argues that including neutrality rules in military manuals indicates 
the continued vitality of the concept. See also Brownlie, International Law 5. However, manuals' disclaimer clauses 
tend to blunt or eliminate their impact as evidence of custom. See, e.g., NWP 1-14M Annotated, at 1, 2; NWP 9A 
Annotated, Preface. 

914. See nn. 606 and accompanying text. 

915. O'Connell, Law of the Sea 1 142. 

916. UN Charter, art. 103; see also n. 10 and accompanying text. 

917. ICJ Statute, art. 38(1); Restatement (Third) §§ 102-03; see also n. 10 and accompanying text. 

918. See n. 10 and accompanying text. 

919. Vienna Convention, arts. 31-33; see also nn. 88-95 and accompanying text. 

920. See generally Symposium, Treaty Succession; Walker, Integration and Disintegration. 

921. See n. 1.33 and accompanying text. 

922. Vienna Convention, arts. 48-52; Fisheries Jurisdiction (UK v. Ice.) 1973 ICJ 14; Brownlie, International 
Law 243-45; Elias, n. 10, 166-67; Harvard Draft Convention on the Law of Treaties, art. 31, 29 Ajil Supp. 657, 663 
(1935); ILC Rep., n. 192,243-46; 1 Oppenheim §§ 638-41; Restatement (Third), Part 1 1 1, Introductory Note 147, § 338; 
Sinclair 17, 161, 172-73, 176-77; Herbert W. Briggs, Unilateral Denunciation of Treaties: The Vienna Convention and the 
International Court of Justice, 68 AJIL 51, 62-63 (1974); Walker, Integration and Disintegration 61-62. 

923. See nn. 58-59 and accompanying text. 

924. Vienna Convention, art. 75; see also ILC Rep., n. 192, 268; 1 Oppenheim § 641, at 1292; Walker, Integration and 
Disintegration 63. 

925. Elias, n. 10, 172-75; Sinclair 177-81; Kearney & Dalton, n. 58,532-35; Walker, Integration and Disintegration 
63. 



926. UN Charter, art. 103; see also nn. 58-59 and accompanying text. 



927. The breach must be material and go to the heart of the agreement. Vienna Convention, art. 60, reciting special 
rules for multilateral agreements; see also Gabcikovo-Nagymaros Project (Hung. V. Slovak.), 1997 ICJ 39 (art. 60 a 
customary norm); Jurisdiction of ICAO Council (India v. Pak.), 1972 id. 46, 67; Namibia, 1971 id. 4, 47; Brownlie 
International Law 622-23; 1978 Digest § 4, 741, 767; ILC Report, n. 191, 253-55; McNair ch. 36; 1 Oppenheim § 649; 
Restatement (Third) § 335; Sinclair, 20, 166, 188-90. 

928. Impossibility of performance can be invoked where the destruction of a certain object of the treaty occurs. 
Vienna Convention, art. 61 ; see also Gabcikovo-Nagymaros Project (Hung. v. Slovak.), 1997 ICJ 39 (art. 1 a customary 
norm); Brownlie, International Law 619; Elias, n. 9, 128-30; ILC Rep., n. 192, 255-56 (noting rarity of practice); 1 
Oppenheim § 650; Restatement (Third) § 336 & cmt. c, r.n. 3; Sinclair 190-92; Walker, Integration and Disintegration 
65-66. McNair 685 does not recognize a separate doctrine, but some of his examples are impossibility situations and 
might be cited as such. Some treaties, e.g., Treaty of Rome, n. 819, arts. 225-26, 298 UNTS at 88-89, require 



World Public Order 237 



renegotiation if unusual and unforeseen circumstances arise; see also Consolidated Version, n. 819, art. 299, in 37 ILM 
at 137; n. 819 and accompanying text. 

929. Fundamental change of circumstances under the Vienna Convention is different from the older rebus sic 
stantibus doctrine. See Vienna Convention, art. 62; see also Gabcikovo-Nagymaros Project (Hung. v. Slovak.), 1997 ICJ 
39 (art. 62 a customary norm); Fisheries Jurisdiction (UK v. Ice.), 1973 ICJ 3, 18 (same); Brownlie, International 
Law 620-21; ArieE. David, The Strategy of Treaty Termination ch. 1 (1975); Elias, n. 10, 119-28; ILC Rep., n. 
192, 257-58; 1 Oppenheim § 651; Restatement (Third) § 336; Sinclair 20, 192-96; Gyorgy Haraszti, Treaties and the 
Fundamental Change of Circumstances, 146 RCADI 1 (1975); Oliver J. Lissitzyn, Treaties and Changed Circumstances, 61 
AJIL 895 (1967); Walker, Integration and Disintegration 66-68. Some treaties have terms contemplating fundamental 
change of circumstances, e.g., Treaty of Rome, n. 819, arts. 225-26, 298 UNTS at 88-89; see also Consolidated Version, 
n. 819, arts. 298-99, in 37 ILM 137; n. 819 and accompanying text. 

930. Desuetude is the discontinuance of use of a treaty through an extended period of time. Mere time passage does 
not vitiate treaty obligations, however; treaty relationships have lasted for centuries. Brownlie, International Law 
617-18; McNair 516-18; Sinclair 163-64 (International Law Commission view that Vienna Convention, art. 54[b] 
covers desuetude); Richard Plender, The Role of Consent in the Termination of Treaties, 57 BYBIL 133, 138-45 (1986); 
Walker, Integration and Disintegration 72. For a US practice example, see 5 Hackworth § 506, at 302. Horace B. 
Robertson, Jr., Commentary, in Law of Naval Warfare 161, 169-70 considers Hague IX, analyzed in Part V.G.I, to be 
in desuetude except for its military objective principles. Similarly, Hague Declaration (XIV) Prohibiting Discharge of 
Projectiles & Explosives from Balloons, Oct. 1 8, 1907, 36 Stat. 2439, might be considered in desuetude. Both remain in 
force for the United States. TIF 433-34. 

931. The amorphous state of necessity doctrine, akin but different from military necessity, or the necessity 
component of self-defense, is similar to a claim of fundamental change of circumstances or impossibility; it focuses 
more on circumstances affecting existence of a State claiming excuse from nonperformance of a treaty. Walker, 
Integration and Disintegration 71; see also nn. 485-520, 631-44 and accompanying text. 

932. Brownlie, International Law 615-16; Lung-Fong Chen, State Succession Relating to Unequal 
Treaties 28-34(1974); 1 Oppenheim § 641, at 1292; Ramond L. Buell, The Termination of Unequal Treaties, 1927 Asil 
Proc. 90-91; Ingrid Detter, The Problem of Unequal Treaties, 15 ICLQ 1069 (1966); S. Prakash Sinha, Perspective of the 
Newly Independent States on the Binding Quality of International Law, 14 id. 121, 123-24 (1965); Walker, Integration and 
Disintegration 63-64. 

933. Vienna Convention, art. 44; Harvard Draft Convention on the Law of Treaties, n. 922, art. 35(c), at 665; 
Restatement (Third) § 338 cmt. e; Walker, Integration and Disintegration 70. 

934. UN Charter, art. 2(2); Vienna Convention, art. 26; Nicaragua Case, 1986 ICJ at 135-42; Texaco Overseas 
Petrol. Co. v. Libya, 17 ILM at 19; Vienna Convention on Succession of States in Respect of Treaties, Aug. 23, 1978, 
UN Doc. A/CONF.80/31 (1978), preamble, in 17 ILM 1488 (1978); Brownlie, International Law 616; ILC Rep., n. 
192, 211; Hans Kelsen, Pure Theory of Law 216 (Max Knight trans. 1967); 1 Oppenheim § 584; Restatement 
(Third) § 321; Wolfgang Friedmann, The Uses of "General Principles" in the Development of Law, 57 AJIL 279, 281 
(1963); Harvard Draft Convention on the Law of Treaties, n. 922, art. 20, at 661; Tariq Hassan, Good Faith in Treaty 
Formation, 21 VJIL 443, 480-81 (1981); Walker, Integration and Disintegration 58. 

935. Brownlie, International Law 5, 13-14; 1 Oppenheim § 10, at 28; Restatement (Third) § 102(3) & cmt. f. 

936. ICJ Statute, art. 38(1); Restatement (Third) §§ 102-03. 

937. Trans World Airlines v. Franklin Mint Corp., 466 US 243 (1984); see also Charlton v. Kelly, 229 US 447, 
474-75 (1913); Terlinden v. Ames, 184 US 270, 288, 290 (1902); United States ex rel. Saroop v. Garcia, 109 F.3d 165, 
170-71 (3d Cir. 1997); Restatement (Third) §§ 326, r.n. 2; 336, r.n. 1. 

938. Vienna Convention, art. 73; ILC Rep., n. 192, 267. Attempts to insert a provision failed during the 
Convention negotiations. Kearney & Dalton, n. 58, 557. 

939. Briggs, Unilateral, n. 922, 51. 

940. Restatement (Third) § 336 cmt. e & r.n. 4; see also n. 929 and accompanying text. 

941. Institut de Droit International, The Effects of Armed Conflicts on Treaties, Aug. 28, 1985, art. 6, 61(2) Annuaire 
278, 280 (1986); id., Regulations Regarding the Effect of War on Treaties, 1912, art. 2(1), in 7 AJIL 153 (1913); Walker, 
Integration and Disintegration 70. 

942. Institut, The Effects, n. 941, art. 7, 280-82; Walker, Integration and Disintegration 70. If the inherent right of 
self-defense under UN Charter, art. 51, is considered a jus cogens norm, it supersedes treaty and customary norms. 



238 The Tanker War 



Even if self-defense is not a jus cogens norm, id., art. 103 declares that the Charter, which includes art. 5 i, trumps other 
treaties. See n. 10 and accompanying text. 

943. Institut, The Effects, n. 941, art. 8, at 282; Walker, Integration and Disintegration 70. This restates the rule insofar 
as Council decisions under UN Charter, arts. 25, 48 are concerned. See also n. 652 and accompanying text. 

944. Institut, The Effects, n. 941, art. 9, at 282; see also Vienna Convention, art. 75. This is a correlative of the UN 
Charter, art. 103 rule imposed on States complying with Security Council decisions; see n. 10 and accompanying text. 
An aggressor cannot compound advantage gained by being an aggressor by wriggling out of treaty obligations. The 
principle parallels those stating that a party causing a treaty breach, or conditions giving rise to claims of fundamental 
change of circumstances or impossibility, cannot assert these claims to suspend or end a treaty. Vienna Convention, 
arts. 60(1 ), 60(2)(b), 60(2)(c), 61(2), 67(2)(b); see also nn. 927-29 and accompanying text. I.e., a party cannot benefit by 
its own wrong. Chorzow Factory (Pol. v. Ger.), 1927PCIJ,Ser. A, No. 9, at 4, 31. Commentators reflect the uncertain 
law on the issue, e.g., Brownlie, International Law 616-17. 

945. See nn. 938-44 and accompanying text. 

946. Vienna Convention, art. 44; see also nn. 938-44 and accompanying text. 

947. ICAO Convention, art. 89. 

948. Institut, The Effects, n. 941, arts. 3-4, at 280; Institut, Regulations, n. 941, art. 5, 7 AJIL 154; 5 Hackworth § 
5 1 3, at 383-84; 2 Oppenheim § § 99(2), 99(5); Harvard Draft Convention on the Law of Treaties, n. 922, art. 35(a), at 664; 
Louise Doswald-Beck & Sylvain Vite, International Humanitarian Law and Human Rights Law, 1993 Int'L Rev. Red 
Cross 94; G.G. Fitzmaurice, The Judicial Clauses of the Peace Treaties, 73 RCADI 255, 312 (1948); Cecil J.B. Hurst, The 
EffectofWaron Treaties, 2 BYBIL 37, 42 (1921); seealso Vienna Convention, art. 60(5); David Weissbrodt & Peggy L. 
Hicks, Implementation of Human Rights and Humanitarian Law in Situations of Armed Conflict, 1993 Int'l Rev. Red 
Cross 120; nn. 939-45 and accompanying text. 

949. Treaty of Rome, n. 819, arts. 223-26, 298 UNTS at 88-89; North American Free Trade Agreement, Dec. 8-17, 
1 992, arts. 2102(1 )(b)-02(c), 2204, TI AS— , in 32 ILM 289, 605, 702 ( 1 993) (NAFTA). Potentially a hemispheric treaty, 
NAFTA is subject to General Agreement on Tariffs & Trade, Oct. 30, 1947, 61(5,6) Stat., 55-61 UNTS (GATT). 
NAFTA, art. 103(1), 32 ILM at 297. GATT, art. 21, 61(5) Stat, at A63, 55 UNTS at 266, is like NAFTA, art. 2102, 32 
ILM at 699-700. Marrakesh Agreement Establishing the World Trade Organization, Apr. 1 5, 1994, art. 2, TIAS — , 33 
ILM 1 144 (1994), and General Agreement on Tariffs & Trade 1994, Apr. 15, 1994, arts. 1-2, TIAS— 33 ILM 1 154-55 
(1994), modifying GATT, do not amend its provisions dealing with war, ere. See also Amelia Porges, Introductory Note, 
id. 1125 (1994). See also nn. 819, 928-29 and accompanying text; VI. 76, 665 and accompanying text for NAFTA 
analysis in the maritime environmental law context. 

950. E.g., 1969 Civil Liability Convention, art. 3(1), supplemented by Protocol, Nov. 19, 1976, in 16 ILM 617 
(1977); see also 2 Hyde § 550, 1555-56. Protocol to Convention on Civil Liability for Oil Pollution Damage, May 25, 
1984, in 6 Benedict, Doc. 6-4A (1984 Civil Liability Convention Protocol); Protocol to Convention on Civil Liability 
for Oil Pollution Damage, Nov. 27, 1992, in id., Doc.6-4B, will further modify the Convention; neither is in force for 
the United States. Marrakesh Agreement Establishing the World Trade Organization, Apr. 15, 1994, art. 2, TIAS — , 
33 ILM 1144 (1994), and general Agreement on Tariffs & Trade 1994, Apr. 15, 1994, arts. 1-2, TIAS— ,33 ILM 1154-55 
(1994), modifying GATT, do not amend its provisions dealing with war, etc. See also Amelia Porges, Introductory Note, 
id. 1125 (1994). See also nn. VI. 14, 74 and accompanying text. 

951. UN Charter, art. 103; see also n. 10 and accompanying text. 

952. This analysis has been adapted from Walker, Oceans Law 190-92. 

953. Chapter IV analyzes the law of the sea, Chapter V analyzes the LOS in the context of naval warfare issues 
raised during the Tanker War, and Chapter VI analyzes the LOS and the law of naval warfare in the context of the 
maritime law of the environment. 

954. Compare, e.g., LOS Convention, preamble, arts. 2(3) (territorial sea), 19, 21, 31 (territorial sea innocent 
passage), 34(2) (straits transit passage), 45 (straits innocent passage), incorporation by reference of arts. 19, 21, 31, 
52(1) (archipelagic sea lanes passage), 58(1), 58(3) (EEZs), 78 (continental shelf; coastal State rights do not affect 
superjacent waters; coastal State cannot infringe or interfere with "navigation and other rights and freedoms of other 
States as provided in this Convention"), 87(1) (high seas), 138 (the Area), 303(4) (archeological, historical objects 
found at sea, "other international agreements and rules of international law regarding the protection of objects of an 
archaeological and historical nature"), with, e.g., High Seas Convention, art. 2; Territorial Sea Convention, art. 1. Two 
1958 LOS conventions do not have other rules clauses but state they do not affect status of waters above as high seas in 
Continental Shelf Convention, arts. 1, 3; or other high seas rights in Fishery Convention, arts. 1-8. 



World Public Order 239 



955. The General Assembly elects the 34 ILC members from government nominees. The ILC drafted the 1958 Los 
Conventions. Herbert W. Briggs, The International Law Commission (1969); Brownlie, International Law 
30-31 ; Schachter, International Law, n. 358, 66-69, 71-72; Briggs, Reflections on the Codification of International Law 
by the International Law Commission and by Other Agencies, 126 RCADI 233 (1969); R.Y. Jennings, The Progressive 
Development of International Law and Its Codification, 24BYBIL 301, 310-29(1947); Hersch Lauterpacht, Codification 
and Development of International Law, 49 AJIL 16 (1955); Shabtai Rosenne, The International Law Commission, 30 
BYBIL 104 (1960). 

956. ILC Report, n. 192, 267-68; 2 Schwarzenberger 376-77; Boleslaw Boczek, Peaceful Purposes Provisions of the 
United Nations Convention on the Law of the Sea, 20 ODIL 359 (1989); Briggs, Unilateral, n. 922, 5 1 ; Christol & Davis, n. 
316, 539-40; Davidson, n. 11.332, 178; Fenvick, Legal Aspects, n. 11.501, 245; Lowe, The Commander's, n. 318, 132; 
Bernard H. Oxman, The Regime of Warships Under the United Nations Convention on the Law of the Sea, 24 VJIL 809, 811 
(1984); Ronzitti, The Crisis 15; Russo, Neutrality at Sea, n. II. 1 12, 384; A.G.Y. Thorpe, Mine Warfare at Sea — Some 
Legal Aspects of the Future, 18 ODIL 255, 257 (1987); Wolfrum, n. 11.332, 391-92. Apparent dissenters include 2 
O'Connell, Law of the Sea 1112-13, referring to id. 747-69 in the context of nationality of merchant ships; Luan Low 
& David Hodgkinson, Compensation for Wartime Environmental Damage: Challenges to International Law After the Gulf 
War, 35 VJIL 405, 421 (1995), who discuss environmental protection obligations in the Los context but say nothing 
about the clauses, although id. elliptically seems to recognize the principle; Okorodudu-Fubara, n. 11.210,195-97; 
Elmer Rauch, The Protocol Additional to the Geneva Conventions for the Protection of Victims of International Armed 
Conflicts and the United Nations Convention on the Law of the Sea: Repercussions on the Law of Naval Warfare: Report to the 
Committee on the Protection of Human Life in Armed Conflict of the Society for Military Law of War 22-49a (July 1983) 
(manuscript in author's possession). 1 Brown 280, recognizing similar other rules clauses pertaining to high seas 
rights, declares: "[F]reedom of the high seas must be exercised under conditions ... in the Convention and by other 
unspecified rules of international law." 

957. LOS Convention, art. 88. Area use is reserved for peaceful purposes; marine scientific research must be for 
peaceful purposes. Id., arts. 141, 143(1), 147(2)(d), 155, 240(a), 242(1), 246(3). This analysis is not confined to art. 88. 
These conclusions apply to other peaceful purposes provisions in e.g., Antarctic Treaty, Dec. 1, 1959,art. 1(1), 12UST 
794, 795, 402 UNTS 71, 72; Treaty on Principles governing Activities of States in Exploration & Use of Outer Space, 
Including the Moon & Other Celestial Bodies, Jan. 27, 1967, 18 id. 2410, 2413-14, 610 UNTS 205, 207 (Space Treaty); 
ENMOD Convention, art. 3(1); Convention on International Maritime Satellite Organization, Sept. 3, 1976, art. 3(3), 
31 UST 1,4 (INMARSAT Organization shall act exclusively for peaceful purposes); Agreement Governing Activities 
of States on the Moon & Other Celestial Bodies, Dec. 5, 1979, art. 3(1), 1363 UNTS 3, 22. 

958. Restatement (Third) § 521, cmt. b, citing UN Charter, art. 2(4); UNCLOS, arts. 88, 301 and referring to 
Restatement (Third) § 905, cmt. g; accord, Legality of Threat of Nuclear Weapons, 1996 (1) ICJ 244; 3 Nordquist HIT 
87.9(i), 88.1 -88.7(d); Russo, Targeting, n. 624, 8; see also Helsinki Principle 1.2; Boczek, Peaceful, n. 956; Oxman, The 
Regime, n. 956, 8 14; John E. Parkerson, Jr., International Legal Implications of the Strategic Defense Initiative, 1 1 6 Mil. L. 
Rev. 67, 79-85 (1987). Bin Cheng, Studies in International Space Law 368, 413, 513-22, 528, 533, 650-52 (1997), 
arguing that the US and other States' view that the space treaties' peaceful purposes language means only a prohibition 
on aggression in space is wrong and that the treaties' peaceful purposes clauses mean no military use of space or space 
objects, concedes the clauses are not clear and need definition, perhaps in a future agreement. Nowhere, however, does 
Cheng consider the impact of UN Charter, art. 103 and the right of self-defense under id., art. 51. See also n. 959 and 
accompanying text. Nor does he adequately analyze contrary authority construing other peaceful purpose clauses; see 
nn. 956-57 and accompanying text. 

959. UN Charter, art. 103; see also n. 10 and accompanying text. 

960. Id., arts. 2(4), 51; see also nn. 47-590, 617-30 and accompanying text. 

961. 3 Nordquist H 87.1(i), citing LOS Convention, arts. 19(2)(b), 19(2)(f)> 52(2) (innocent passage). High Seas 
Convention, art. 2, has been interpreted to include freedoms to undertake scientific research, to explore or exploit 
high seas subsoil resources and to test nuclear weapons. See also Restatement (Third) § 521 cmt. b; n. 958 and 
accompanying text. 

962. Many but not all of the other 1958 LOS Conventions' terms reflect custom. See High Seas Convention, 
preamble, declaring it restates customary law; NWP 9A Annotated 11 1.1 at 1-2 n. 4; cf. 1 O'Connell, Law of the Sea 
385, 474-76. 

963. NWP 1-14M Annotated Part I H 1.1; Restatement (Third), Part V, Introductory Note, 3-5; cf. John Norton 
Moore, Introduction to 1 Nordquist xxviii; Bernard H. Oxman, International Law and Naval and Air Operations at Sea, in 
Robertson 19, 29; see also President Reagan, United States Ocean Policy, Mar. 10, 1983, 19 Weekly Comp. Pres. Doc. 383 
(Mar. 14, 1983); but see 1 O'Connell, Law of the Sea 48-49. O'Connell researched through 1978 using LOS 
Convention drafts but died before a final version was available. Ivan A. Shearer made changes and additions, 



240 The Tanker War 

publishing before the Convention was signed. Shearer, Editor 's Preface to id. vii. O'Connell's views may reflect views of 
the time before Restatement (Third) was published in 1987. In 1983 the United States claimed a 200-mile EEZ in 
accordance with the Convention. Proclamation No. 5030, 48 Fed. Reg. 10605 (Mar. 10, 1983). In 1988 it claimed a 
12-mile territorial sea in accordance with the Convention. Proclamation No. 5928, 54 id. Ill (Dec. 27, 1988). For 
territorial sea and EEZ analysis, see Parts IV.B.2, IV.B.4, IV.B.6, IV.D.2-IV.D.4. 

964. ICJ Statute, art. 38(1); Restatement (Third) §§ 102-03. 

965. See nn. 725-28 and accompanying text. 

966. See nn. 962-63 and accompanying text. 

967. See nn. 158-590, 617-30 and accompanying text. 

968. See nn. 593-94 and accompanying text. 

969. See n. 631 and accompanying text. 

970. See n. 10 and accompanying text. 

971. See nn. 79-103 and accompanying text. 

972. See nn. 104-57 and accompanying text. 

973. See nn. 650-61 and accompanying text. 

974. See nn. 69, 657 and accompanying text. 

975. See nn. 158-590, 617-30 and accompanying text. 

976. Id. 

977. Id. 

978. See nn. 591-616, 645-49 and accompanying text. 

979. See nn. 303-307, 800-17 and accompanying text. 

980. See nn. 168,199 and accompanying text. 

981. See nn. 10, 202-06 and accompanying text. 

982. See nn. 289-302, 308-36 and accompanying text. 

983. See n. 438 and accompanying text. 

984. See n. 440 and accompanying text. 

985. See nn. 445-47 and accompanying text. 

986. See nn. 448-68, V.677-78, VI.231-38 and accompanying text. 

987. See n. 948 and accompanying text. 

988. See nn. 10, 725, 729, 735, 823 and accompanying text. 

989. See n. 934 and accompanying text. 

990. See nn. V.697-709, VI.268-271 and accompanying text. 

991. See nn. 828-915 and accompanying text. 

992. See nn. 919-51 and accompanying text. 

993. See nn. 951-67 and accompanying text. 



Chapter IV 

CLAIMS RELATED TO THE LAW OF THE 

SEA (LOS) 

Since World War II, States have attempted to negotiate multilateral agree- 
ments to delimit boundaries and use of the Earth's oceans and seas. There 
have been successes and failures. In 1958 four treaties — the High Seas, Continen- 
tal Shelf, Territorial Sea and Fishery Conventions — were signed at the Geneva 
UN Conference on the Law of the Sea and are now in force for ratifying States. 
Two years later attempts to delimit the territorial sea failed at Geneva. In 1982 an- 
other agreement, the UN Convention on the Law of the Sea (LOS Convention), a 
comprehensive treaty covering subjects of the 1958 conventions and other princi- 
ples, e.g., environmental protection, discussed in Chapter VI, was signed at 
Montego Bay, Jamaica after nearly a decade of negotiations; several principal ac- 
tors, including the United States, elected not to sign due to problems with the Con- 
vention's deep seabed mining provisions. The LOS Convention is now in force, 
but not for the United States and an increasingly smaller number of countries. 
Besides the LOS conventions, many other agreements, e.g., the ICAO Conven- 
tion, impact LOS boundaries and ocean usage, not to mention State practice, the 
research of scholars, and occasional judicial and arbitral decisions. 

This Chapter analyzes LOS issues relating to the Tanker War under three prin- 
cipal topics: the relationship among the law of the UN Charter, the LOS and the 
law of armed conflict (LOAC), discussed in Part A. Part A also discusses issues re- 
lated to treaty interpretation in these contexts. Part B analyzes LOS issues related 
to oceans use, and Part C discusses the status of vessels (merchantmen, warships, 
etc.) plying the oceans. A conclusion relates these claims to Tanker War issues in 
each Part, and a general conclusion, Part D, summarizes Tanker War LOS issues. 

Part A. The Charter, the LOS, and the Law of Armed Conflict (LOAC) 

The rule for the relationship between the law of the UN Charter as a treaty and 
the LOS as stated in treaties is simple. The Charter prevails. Similarly, to the ex- 
tent that Charter norms or other norms have;ws cogens status, these rules also pre- 
vail. If an LOS norm is stated in a treaty, in custom or in general principles, and 
there is a conflicting customary or general principles norm parallelling the Char- 
ter as a treaty, the analysis is less clear. If traditional modes of thinking about 
sources of international law apply, a balancing process among these norms must be 
undertaken; it is conceivable that a non-Charter norm might prevail. In terms of 
competition between the Charter and the LOS, however, this is largely a theoretical 



242 The Tanker War 



issue, except insofar as the right of self-defense, other Charter norms, or manda- 
tory decisions of the UN Security Council might supersede LOS treaty norms. 

L The LOS and the LOAC 

The relationship between the LOS and the LOAC and its component, the law of 
naval warfare (LONW), is somewhat clear but less well known. Chapter III has 
discussed them in a context of general principles of UN Charter law and principles 
of treaty interpretation. They are repeated here for convenience in interpreting 
the law of the sea. 

The 1958 and 1982 LOS Conventions include clauses, sometimes overlooked in 
analysis or commentary, stating that rights under these agreements are subject to 

12 

"other rules of international law" as well as terms in the particular treaty. For ex- 
ample, LOS Convention, art. 87(1), which declares high seas freedoms, also says, 
"Freedom of the high seas is exercised under the conditions laid down by this Con- 
vention and by other rules of international law." Four conclusions can be stated. 
First, an overwhelming majority of commentators, including the International 

1 3 

Law Commission, a UN General Assembly agency of international law experts, 
state that the other rules clauses in the LOS Conventions refer to the LOAC, 
which includes the law of naval warfare. Therefore, provisions such as LOS Con- 
vention, art. 88, state a truism: The high seas are reserved for peaceful purposes, 
but high seas usage can be subject to the law of armed conflict, when Article 87( 1 )'s 
other rules clause is read with Article 88. As in the 1958 conventions, 

That provision does not preclude. . . use of the high seas by naval forces. Their use for 
aggressive purposes, which would. . . violat[e]. . . Article 2(4) of the [UN] Charter. . . , 
is forbidden as well by Article 88 [of the Convention]. See also LOS Convention, 
Article 301, requiring parties, in exercising their rights and p[er]forming their duties 
under the Convention, to refrain from any threat or use of force in violation of the 
Charter.^" 

This analysis is buttressed by the Charter's trumping clause; no other treaty can 

17 

supersede the Charter. Thus the peaceful purposes language in Article 88 and 
other LOS Convention provisions cannot override Charter norms, e.g., Article 
2(4), but also those in Article 5\,i.e., the inherent right of individual and collective 
self-defense. 

Second, there is no indication that the 1958 or 1982 LOS Convention drafters 
thought the other rules clauses referred to anything else, e.g., to a customary law of 
the environment. As discussed in Chapter VI, international environmental law 
was a gleam in academics' and futurists' eyes when the 1958 Conventions were 
signed; there was only a patchwork of international agreements touching the sub- 
ject. There is no indication the International Law Commission, which drafted 
the 1958 treaties, considered environmental protection. By contrast, there was an 



Law of the Sea 243 



established body of law, discussed in Chapter V, dealing with armed conflict situa- 
tions, including naval warfare, at the time. Since the 1982 LOS Convention carried 
over the same language, it must be presumed that the same meaning attaches to the 
other rules clauses. 

Third, e.g., other agreements dealing with protection of the maritime environ- 
ment include clauses exempting, or partially exempting their application during 

20 

armed conflict or similar situations. Some speak of war, others of armed conflict 

21 22 

or a need to protect vital national interests. This includes the NAFTA. This 
tends to confirm the view of applying the law of armed conflict as a separate body of 
law in appropriate situations. To the extent that treaties dealing with the maritime 

23 

environment do not have such clauses, such agreements must be read in the light 
of the LOS Conventions, which include such provisions. And to the extent that the 
1958 LOS Conventions recite customary norms, and such is the case with the High 
Seas Convention, applying the LOAC as a separate body of law in appropriate sit- 
uations as a customary norm must also be considered with LOAC treaties and 

25 

other sources when analyzing these issues. 

Fourth, principles of the law of treaties, e.g., impossibility of performance; 
fundamental change of circumstances; desuetude, or lack of use of a treaty for a 

28 • 2*9 

considerable time; or war, the last applying only to parties to a conflict; may 
suspend operation of international agreements during a conflict or other, similar 
emergency situations, or may terminate them. Outbreak of hostilities does not sus- 
pend or terminate humanitarian conventions or treaties governing neutrality de- 

30 

signed to apply during armed conflict, however. The other side of the coin is 
pacta sunt servanda, i.e., that treaties should be observed; a manifestation of this is 
that States signing treaties should not behave so as to defeat the treaties' object and 

32 33 

purpose. The often amorphous law of treaty succession must be considered, 
particularly for older agreements, including those stating the LOAC, to the extent 
that those treaties are not part of customary law today. If these agreements restate 
custom, and are subject to treaty succession principles with respect to a particular 
country, that country is doubly bound. 

The conclusion is inescapable that the other rules clauses of the 1958 Conven- 
tions, provisions carried forward into the 1982 LOS Convention, mean that the 
LOS conventions' terms are subject to the LOAC, of which the law of naval war- 
fare is a part. Since the High Seas Convention is generally considered a restatement 

35 

of customary law, its other rules clauses are part of the customary law governing 
oceans law during armed conflict. Moreover, since many States consider the LOS 
Convention's navigational articles, which often copy 1958 conventions' terms, 
customary law, and since the navigational articles include other rules clauses, 
the case is strong that the LOS is governed by two bodies of rules: (1) the LOS as 
stated in the conventions, custom and subordinate treaties, etc., in non-armed con- 
flict situations; (2) the LOAC, including the LONW, where LOAC rules apply. 



244 The Tanker War 



Iraq's claim that the Kuwait Regional Convention and its Protocol did not ap- 

37 

ply when it struck the Nowruz oil facilities was without basis in law. Although 
the Convention might have been suspended between the belligerents, it continued 
to apply to relations between Iran, Iraq and third States, the latter of whom were 

38 

not parties to the conflict, i.e., belligerents. To the extent the Nowruz attack re- 
sulted in damage, including environmental harm, to States not party to the con- 
flict, Iraq violated the Regional Convention and perhaps other environmental 

39 
norms. Iraq might have claimed the Convention was suspended because of im- 
possibility of performance, or maybe fundamental change of circumstances, 
but Iraq did not make these assertions. 

2. Relationship of the 1982 LOS Convention and Other LOS-Related Treaties 

Besides general rules of treaty construction applying to all international agree- 
ments, the 1982 LOS Convention has special rules for its relationship as a treaty 
with the 1958 conventions and other treaties dealing with LOS issues. 

For those States that are or become parties, the 1982 LOS Convention will re- 
place the 1958 conventions. Article 311(2), the general supersession provision 
for the LOS Convention, declares that the Convention does not alter existing 
rights "which arise from other agreements compatible with this Convention" and 
which do not affect enjoyment of other parties' rights or performance of their obli- 
gations under the Convention. States may also conclude agreements modifying 
or suspending operations of the LOS Convention, provided that the suspension or 
modification is not incompatible with effective execution of the object and pur- 
pose of the LOS Convention or its basic principles and do not affect enjoyment of 
other States' rights or performance of their obligations under the LOS Conven- 
tion. States that intend to conclude such an agreement must notify other LOS 
Convention parties of their intentions and the modification or suspension for 
which it provides. Rules for non-suspendable straits transit passage, and non- 
suspension of innocent passage in some straits, are examples of LOS Convention 
provisions that no single State may undercut. Article 31 1(3) forbids two or more 
States bordering a strait from trying to suspend straits transit or innocent passage, 
as provided by the Convention, through a treaty, an example of treaty action the 
LOS Convention forbids. 

The LOS Convention declares for its environmental norms in Part XII, which 
states many principles of maritime environmental law: 

1. The provisions of this Part are without prejudice to the specific obligations 
assumed by States under special conventions and agreements concluded previously 
which relate to the protection and preservation of the marine environment and to 
agreements which may be concluded in furtherance of the general principles set forth 
in this Convention. 



Law of the Sea 245 



2. Specific obligations assumed by States under special conventions, with respect 
to the protection and preservation of the marine environment, should be carried out 
in a manner consistent with the general principles and objectives of this 
Convention. 48 

This is a lex specialise i.e. a special rule, for the LOS Convention, Part XII, the prin- 

49 

cipal source for maritime environmental protection standards, which the LOS 
Convention allows for this and other articles varying its basic rules. The rule for 
no suspension of innocent passage for certain straits, e.g., those between the high 

seas and a foreign State's territorial sea, as distinguished from general innocent 

52 
passage rules allowing suspension under certain circumstances, is another exam- 
ple of lex specialis. 

As in the case of the Charter, there is the possibility that a parallel but contradic- 
tory custom or other source of law may develop alongside treaty-based norms. 
The developing customary norm might be the same as, and thereby strengthen, 
the treaty norm. If in opposition, custom can weaken or dislodge a treaty norm. 

However, no treaty, and probably no custom, can supersede the Charter, manda- 

57 58 

tory norms developed under it, ox jus cogens norms. 

3. The 1982 LOS Convention and the Tanker War 

Bahrain and Iraq ratified the LOS Convention in 1985, and Kuwait in 1986; 
many other countries, e.g., France and the UAE, were signatories, but other States 
with prominent roles in the Tanker War, e.g., the United Kingdom and the United 
States, were not signatories or parties during the Tanker War. Thus for some 
States there was an obligation not to defeat the object and purpose of the LOS Con- 
vention during at least part of the Tanker War. These countries also had the duty 
to comply with customary norms, perhaps restated in the 1 982 LOS Convention or 
the 1958 LOS conventions. Others were bound by the 1958 LOS conventions,^., 
the United Kingdom and the United States. These countries also had the obliga- 
tion to comply with customary norms, perhaps restated in the 1958 conventions or 

the LOS Convention. Still other countries were not party to any LOS treaty; how- 

f\~) 
ever, they were bound by customary rules the 1958 and 1 982 conventions restate. 

Most Persian Gulf coastal States were in the latter category. The ensuing analysis 

proceeds by analyzing and comparing the 1958 and 1982 LOS conventions as 

treaty law, to the extent that they applied as such, and seeks to supply customary 

rules where these are in accordance with or differ from the conventional law. 

Part B. Claims to Oceans Use 

Because most armed conflicts in which merchant ships are involved have oc- 
curred on the high seas, we begin by examining merchant ships' and warships' 
status on the "great common." This method takes the perspective of all seafarers 



246 The Tanker War 



except those who sailed from Persian Gulf ports. Mariners, whether aboard mer- 
chant vessels or men of war, that approach the Gulf from the Indian Ocean must 
traverse the high seas before they encounter special regimes, e.g., straits passage, 
the continental shelf, the contiguous zone, or the territorial sea. It is an analysis of 
derogation from the general to the specific, in terms of applicable law. 

1. Trends in Claims to Ocean Usages on the High Seas 

According to the High Seas Convention, the high seas include all parts of the sea 
(including subsurface water) not included in States' territorial or internal wa- 
ters. Beyond these broad exclusions, the LOS Convention, Article 88 says that 
the "high seas shall be reserved for peaceful purposes," which, as analyzed above, 
does not mean that navies cannot operate on the high seas. Stated as a positive rule, 
States may conduct naval operations on the high seas, subject to other LOS limita- 
tions, discussed below. Under Article 2(4) of the Charter, no State may use the high 
seas for aggressive purposes; this is in essence a cardinal principle of the Charter, 
along with the Article 5 1 inherent right to self-defense. LOS Convention, Arti- 
cle 89 declares: "No State may validly purport to subject any part of the high seas to 
its sovereignty." The LOS conventions declare that every State may sail ships on 
the high seas under its flag, and list certain rights, among others, with respect to 
the high seas: 

1. freedom of navigation; 

2. freedom of overflight; 70 

3. freedom to lay submarine cables and pipelines; 71 

4. freedom of fishing; 72 

5. freedom to build artificial islands and other installations permitted by 
international law; 73 

6. freedom to conduct scientific research. 74 

Both agreements say all States must exercise these rights with reasonable, or due, 

75 
regard for the interests of other States in their exercise of high seas rights. The 

LOS Convention adds that high seas users must have due regard for others' rights 
in those parts of the sea-bed ocean floor and subsoil beyond national jurisdictional 
limits, i.e., beyond the territorial sea, EEZ and continental shelf. All States, 
whether landlocked or not, may sail ships flying their flag on the high seas. War- 
ships and government ships on noncommercial service enjoy complete immunity 

77 

on the high seas from other than the flag State. 

78 
The clear trend, since the triumph of Hugo Grotius' open seas theory over 

79 

John Selden's closed sea concept, has been for freedom of navigation, particu- 
larly the high seas. Another pattern of claims since Grotius' era has been, however, 
limitation of that right. Succeeding Parts of this Chapter examine trends in these 
limitations, looking landward. 



Law of the Sea 247 



2. Trends in Claims of Restrictions on High Seas Rights: From Fisheries to the 
EEZ 

One class of claims on merchant vessels' and warships' rights to navigation on 
the high seas deals with coastal States' assertions to competence over belts of the 
high seas outward from the territorial sea for exclusive fishing rights. At first sub- 
ject to conflicting claims, if not outright violence on the high seas, the issue has 
been largely resolved by treaties in many areas of the world. Historically the Gulf 

80 

has been a primary source for pearls and there are offshore fishing areas. More re- 
cently, agreements have attempted to regulate offshore fishing areas. The US ex- 
perience with fishing issues may point toward problems and solutions for the Gulf 
and its seaward fishing zones and EEZs in particular. "[T]he fishery question has 
been the focal point of the whole problem of territorial waters from its very begin- 
ning." Riesenfeld wrote this in 1942; today doubtless he would amend this anal- 
ysis to include EEZ-related claims. 

a. From Fishery Claims to Sovereignty Claims to the EEZ Concept. The oldest 
claims for offshore use of the high seas surface and water column involve fishing, 
and from these came assertions of rights in offshore fishing zones, the continental 

83 

shelf, and EEZs. However, ocean fishing "has never been an unfettered right," 
and, as will be seen, neither have continental shelf or EEZ claims. Although more 
of historical interest in some respects, fishing rights claims analysis develops this 
thesis, and this sub-Part starts by examining fishing rights claims in US practice. 
The Treaty of Paris ending the American Revolution gave US fisherman access 

to the Grand Banks, other fishing areas off Newfoundland, the Gulf of St. Law- 

• 84 
rence, the Newfoundland coasts and other coasts off British North America. 

85 

France also had fishing rights in the area. These rights were not considered ces- 
sion of territory; therefore, no navigation rights were impaired. An 1818 Brit- 

87 

ish-US convention confirmed and refined fishing rights and liberties, and this 

88 

process continued in 1854. The Treaty of Washington, in effect 1873-85, again 

89 

confirmed these rights and approved reciprocal rights in US waters. In 1906 

90 
British-US notes relating to purse seining off Newfoundland were exchanged; 

this modus vivendi continued into 1912. A 1908 bilateral treaty, providing for an 
International Fisheries Commission, resulted in authority for restricted halibut 
and lobster fishing in territorial waters. 

In 1909 the two countries agreed to submit issues related to fishing in waters 
northeast of the United States to arbitration. The Permanent Court of Arbitra- 
tion decided in Britain's favor with respect to regulating the fishing industry 
subject to the 1818 Convention but held US fishermen could hire crews of non- 
inhabitants (i.e., Newfoundlanders). Although US fishermen had to report to local 
authorities if they landed to dry or cure fish, they could fish in certain local 



248 The Tanker War 



95 
Newfoundland and Magdalen Islands waters. A treaty later recited procedual 

rules and methods for future disputes that the Court had recommended. 

British-US bilateral agreements of 1923, 1930 and 1937, Britain acting for Can- 
ada for the latter two, established a Pacific coast International Fisheries Commis- 

97 

sion and regulated Pacific high seas halibut fishing. Similar 1930 and 1956 

98 

agreements later protected sockeye salmon. 

In none of these fishing rights claims and counterclaims was there any assertion 
of a right to regulate merchant ship or warship navigation except with respect to 
taking fish. The same trend may be observed in claims to hunt seals in the North 
Pacific and Arctic Oceans. 

Russian ukases of 1799 and 1821 gave the Russian-American Company Bering 
Sea whaling and fishing rights, along the northwest coast of America, and in other 
seas northeast of Russia. Russia also asserted a right to forbid approaches to Rus- 
sian lands closer than 100 miles. After British and US protests, Russia-US and 

99 

Britain-Russia treaties were ratified in 1 824 and 1825. The Russia-US agreement 
provided: "[I]n any part of the [Pacific] Ocean,. . . Citizens or Subjects of the high 
contracting Powers shall be neither disturbed nor restrained either in navigation, 
or in fishing, or in resorting to the coasts upon points which may not already have 
been occupied, for. . . trading with the Natives," subject to certain exceptions. 
Reciprocal rights to fish and to trade with natives were given, except for sale of fire- 

luni 

102 



arms, munitions of war and liquor. The 1 825 Britain-Russia treaty followed the 



pattern. 

The 1867 treaty selling Alaska to the United States ceded Russian land and wa- 
ter territory in North America, including the Aleutian Islands, to the United 
States. Although US legislation implementing the treaty would seem to have as- 
serted dominion over the Bering Sea, an 1 893 arbitral award held that only three 
marine miles offshore were subject to US sovereignty, and that US high seas sei- 
zures of British ships in the Bering Sea violated those ships' right of navigation. " 
The award established regulations for concurrent British-US jurisdiction over fur 
seal fishing in Bering Sea high seas areas. British and US legislation confirmed 
the award's regulations in 1894. Nothing in the award or a treaty establishing 

1 no 

the tribunal claimed to impair high seas navigation. 

Other governments' reactions to the 1893 regulations were mixed, but the only 
admitted claim of control related to seal fishing. In 1894, a Russia-US modus Vi- 
vendi confirmed reciprocal policing rights for regulating seal fishing. In 1902, 
pursuant to a protocol, an arbitrator found for the United States in the Cape Horn 
Pigeon case, where a Russian cruiser seized and detained a US-flag fishing vessel on 
the high seas when the Russian naval commander "had been in error in his suspi- 
cions that the bark was engaged in an illicit pursuit, and the Russian Government of- 

it? 
fered to pay a proper indemnity .... Similarly, in the James Hamilton Lewis, C.H 

White and Kate and Anna claims, where Russian seizures had been attempted on 



Law of the Sea 249 



the high seas for possible illegal fishing in Russian territorial waters, the award 
went to the United States. The arbitrator noted that absent a treaty there was no ju- 
risdiction for Russian naval commanders to seize US-flag vessels. ' The signifi- 
cance of these awards is that even as to seal fishing, which occurs when seals 
migrate on the open sea, there was no claim to restrict freedom of navigation be- 
yond a territorial sea without international agreement. 

A 1911 Britain-Japan-Russia-US agreement, limiting North Pacific high seas 
fur seal fishing, did not restrict navigation rights in these waters. A decade later, 
a treaty regularizing the Spitsbergen Archipelago's status under Norwegian sover- 
eignty declared fishing and hunting rights but imposed no limitations on free- 
dom of navigation; its Article 3 assured "nationals of all. . . Parties equal liberty of 
access and entry for any reason or object whatever to the waters, fjords and ports of 
the territories; subject to the observance of local laws and regulations, they [might] 
carry on. . . maritime and commercial operations on a footing of absolute equality." 
Transit rights were subject to Norwegian most-favored-nation treatment. Bi- 
lateral fishing agreements between the World Wars followed the same pattern of 
limiting fishing operations while expressly not restricting the general freedom of 

1 17 

navigation or not mentioning it at all. 

The 1931 and later multilateral conventions regulating whaling, although ap- 

118 
plying in territorial waters and on the high seas, imposed no limits on naviga- 
tional use of these waters. 

During the 1930's and until the outbreak of World War II, the United States ex- 
pressed concern to Japan over depletion of Pacific salmon fisheries near Bristol 
Bay, Alaska; initial proposed solutions included extension of the US traditional 

1 19 

three-mile territorial sea limit. During the war the United States considered 
linking territorial sea expansion (and therefore possible restriction of freedom of 
navigation) with limitations on fishing based on the continental shelf below the 

120 121 

water column. Eventually the linkage idea was discarded, and a US Fisheries 
Proclamation (September 28, 1945) asserted national jurisdiction to establish fish- 
eries conservation zones in high seas areas contiguous to US coasts, either for US 
fishermen's exclusive use or by international agreement with other States, with as- 
surance that the United States would recognize other States' proclamations on a 
reciprocal basis. However, "[t]he character as high seas of the areas in which such 
conservation zones [were] established and the right to their free and unimpeded 

122 

navigation [was] in no way thus affected." 

Despite these trends, three South American countries — Chile, Ecuador and 
Peru (CEP States) — took a claim to possible assertion of a 200-mile fisheries zone a 
step further, first by decrees in 1947 and 1950. The August 18, 1952 Declaration 
of Santiago on the Maritime Zone followed, proclaiming, "[E]ach [State] possesses 
sole sovereignty and jurisdiction over the area of sea adjacent to the coast of its own 
country and extending not less than 200 nautical miles from the said coast." The 



250 The Tanker War 



Declaration added: "[It] shall not be construed as disregarding the necessary re- 
strictions on the exercise of sovereignty and jurisdiction imposed by international 
law to permit the innocent and inoffensive passage of vessels of all nations through 
the zone " In 1954 the CEP States formalized the Declaration with a Supple- 
mentary Agreement to consult to uphold the 200-mile territorial sea, including de- 

1 25 

termining action to be taken if force were used against them. The United States 

1 -yc 

protested the executive decrees, and a 1953 Ecuador-US agreement on fishery 

127 

relations noted "differences in views" on the territorial sea. The international 
response to these expansive claims was immediate and strong. An Ecuadoran pro- 
posal, similar to the Declaration, was subjected to such "sweeping modifications" 

128 

that its impact was negated at the 1954 Inter-American Conference. Negotia- 
tions in 1955 led nowhere, and the 200-mile Santiago Declaration territorial sea 
belt, linked with fishing rights claims, remained in effect although protested by 

129 

the United States. By 1958, however, the CEP States had agreed to separate the 
territorial sea width and fishing control jurisdiction issues. Ecuador, e.g., contin- 
ued to adhere to the 200-mile Declaration jurisdiction but asserted only a 12-mile 
territorial sea. In 1966, however, Ecuador's presidential proclamation claimed a 
200-mile territorial sea; the United States does not recognize this claim. Other 

130 

claims exceeding LOS Convention limits persist; these too have been protested. 

The USSR, as successor to the tsarist regime with its propensity to claim wide 
territorial sea jurisdiction through asserting fishing control, distinguished be- 
tween territorial sea claims and fisheries regulation jurisdiction. A 1927 Soviet or- 
dinance asserted a 12-mile defensive limit of territorial waters; a 1935 ordinance 

132 

claimed a 1 2-mile fishing regulation jurisdiction. Repeating a pattern of an ear- 

133 

lier agreement, the USSR concluded the Barents Sea Pact with the United 
Kingdom in 1956, permitting fishing by UK vessels up to three miles from the 
Barents Sea coast. Following a decree restricting Sea of Okhotsk, western Be- 

135 

ring Sea and other contiguous North Pacific waters salmon fishing, the USSR 
signed a bilateral agreement with Japan to regulate salmon fishing in these wa- 
ters. As in the Barents Sea Pact, the treaty omitted territorial sea claims with a 
right of excluding shipping. 

Thus it was entirely consistent with customary international law that the 1958 
Fishery Convention implicitly recognized an unimpeded right of navigation in 
high seas areas potentially subject to fisheries conservation. Apart from treaty obli- 
gations, special interests and rights of coastal States, and special Convention provi- 

137 

sions, all States have a right to fish on the high seas. States must adopt 
provisions for their nationals who fish on the high seas, and must negotiate agree- 
ments with other users of high seas fisheries or arbitrate differences. Coastal States 

138 
are deemed to have special interests in areas off their shores. This agreement 

does not limit high seas navigation except insofar as fishing regulation is involved. 

The High Seas Convention, proclaiming separate high seas navigation and fishing 



Law of the Sea 251 

1 on 

freedoms, confirms this principle. The Territorial Sea Convention declares 
that passage is not innocent in the territorial sea if fishermen do not observe pub- 
lished coastal State regulations on territorial sea fishing. Coastal States may 
pass laws to prevent and punish infringement of customs, fiscal, or health regula- 
tions in their contiguous zone or territorial sea; these rules may also impact off- 
shore fishing. 

Decades after 1958 witnessed assertions of wider exclusive offshore fishing 
zones, two Cod Wars between Iceland and the United Kingdom, and an ICJ deci- 
sion holding that custom had crystallized into allowing coastal States to claim an 
exclusive 1 2-mile offshore fishing zone. The 1 976 US Fishery Conservation and 
Management Act, declaring a regulatory regime for a 200-mile area from territorial 
sea baselines and otherwise proclaiming a national right to regulate all but highly 
migratory fish species, did not assert a right to regulate high seas navigation. Al- 
though Title II provided for foreign fishing pursuant to existing or future agree- 
ments, no later US treaty has impinged on general overflight or navigation 
rights in fishing zones. In the Persian Gulf area, Iran proclaimed a 50-mile exclu- 
sive fishing zone in the Gulf of Oman and to the limits of its continental shelf 
boundary in 1973. The next year Saudi Arabia established an exclusive fishing 
zone with median lines as boundaries with other countries. 

The LOS Convention continues a theme of generally free navigation access to 
high seas fishing areas, but largely in the context of a claimed EEZ. Allowing the 
possibility of a 200-mile EEZ, the LOS Convention declares for general high seas 
freedoms including navigation and overflight, subject to a coastal State's right to 
explore and exploit natural resources of the water column, the seabed and subsoil; 
to establish artificial islands, installations and structures; to scientific research; 
and to protecting and preserving the coastal environment. The LOS Conven- 
tion EEZ is subject to the treaty's regime of peaceful uses of the high seas, invalid- 
ity of sovereignty claims for the high seas, navigation rights, status of ships, visit 
and search, hot pursuit, rights to lay submarine cables and pipelines, and suppres- 
sion of slavery, piracy, the drug traffic and unauthorized broadcasting, as well as 

148 

"other pertinent rules of international law," i.e. the law of armed conflict. As in 
the Fishery Convention, States with competing interests must give due regard to 

149 

other States' interests. This principle parallels the 1974 Fisheries Jurisdiction 
Case. Although it has been argued that the LOS Convention does not allow mil- 
itary exercises in the EEZ, and some States have claimed a right to bar military ac- 
tivities, it is submitted that the LOS Convention reference to high seas 
freedoms includes a right to use an EEZ for military exercises, subject to due re- 

152 

gard for coastal State interests. Even those who argue against this position con- 
cede that the LOS Convention permits unimpeded EEZ overflight. 

Islands capable of human habitation or economic life can have an EEZ, but 
rocks, low-tide elevations and human-made offshore installations such as oil 



252 The Tanker War 



derricks, etc., cannot. In those cases the EEZ is measured from shore baselines. 
A State's EEZ proclamation, while asserting regulatory rights over a 200-mile 
band of the sea and its bottom, cannot claim a right to regulate navigation outside 
the territorial sea. The presumption is that high seas freedoms prevail, subject to 
requirements of due regard for coastal State jurisdiction and sovereignty validly 
asserted, and, in appropriate situations, the LOAC, and in all cases the law of the 
Charter. High seas freedoms also prevail in high seas fishing areas as well, sub- 
ject to principles of due regard for others' high seas freedoms and, in appropriate 

situations, the LOAC, and in all cases the law of the Charter. The LOS Conven- 

157 
tion EEZ formula is customary law. 

b. Conclusions. Claims to use ocean resources, whether in the water column or on 

the seabed, may have begun as attempts to encroach upon the great common of 

. . . 158 . . 

high seas navigation rights. Episodic proclamations have claimed sovereignty 

159 
since then. However, today international law firmly declares merchantmen's 

and warships' rights to navigate those potentially resource-rich areas, subject to 
coastal States' rights to regulate activity that might impair those resources, e.g., en- 
vironmental damage, and subject to other limitations on high sea navigation, e.g., 
peaceful use. Fishing zones and general EEZs are subject to high seas freedoms 
for purposes of overflight and navigation by warships and merchant vessels alike. 
Warships and merchantmen must, however, have due regard for coastal State in- 
terests in the EEZ. 

c. High Seas Fisheries, EEZs, Pipelines, Freedoms of Navigation and Overflight, 
and the Tanker War. Among Persian Gulf States, Iran claimed a 50-mile fishery 
zone off its coasts, subject to median line boundaries in the Gulf. Qatar proclaimed 

1 f\7 

a 200-mile fishery zone, and the UAE were among 80 States claiming an EEZ. 
However, Iran is among four States forbidding foreign military exercises in her 
EEZ, a derogation unlawful under the LOS that the United States has protested. 
(Iran asserted this claim in 1993; it is not relevant for this analysis.) 

Insofar as the high seas parts of Gulf fishery zones or EEZs are concerned, there 
appears to be no record of impairment of usage by neutrals during the Tanker War. 
Belligerents and neutrals alike owed neutrals due regard for those neutrals' exer- 
cise of EEZ or fishing zone rights. To be sure, there is evidence of attacks on 
dhows, i.e., possibly fishing vessels operating in a proclaimed zone, on offshore oil 
facilities and on vessels that may have been servicing installations in a zone. 
Since these incidents are concerned as much with attacks on a ship engaged in nav- 
igation in the Gulf, analysis of the legitimacy of the attacks appears in Chapters III 
and V. Iraq attacked Iranian offshore installations, including pumping stations 
and other facilities. Iran attacked Iraqi facilities but also neutral countries' instal- 
lations. Insofar as these were a belligerent's attacks on its opponent, the LOAC 



Law of the Sea 253 



applied through the LOS other rules clauses, by then a customary as well as a treaty 
norm. On the other hand, attacks on neutrals' facilities were violations of the UN 

I fin 

Charter, art. 2(4). Chapter V discusses legitimacy of these attacks from an 
LO AC perspective; Chapter VI examines them in the context of the law of the mar- 
itime environment. Although pipelines necessarily led from the shores of Gulf 
States, e.g., Kuwait and Iran, to these countries' offshore pumping stations, there 
were no reports of attacks on the pipelines or any other submarine pipelines during 
the Tanker War. 

The United States responded to Iranian attacks on US-flagged tankers by de- 
stroying Iranian offshore platforms that were a source of the attacks and which 
may have been sites of legitimate EEZ activity under the LOS. This was a legiti- 
mate act of self-defense under Article 51 of the Charter; whether seen as a jus 

170 

cogens -protected right or as trumping the LOS. As explained in Chapter V, the 

171 

attacks were also proportional under the law of naval warfare; since there appar- 
ently was no appreciable environmental damage resulting from the attacks, no 
claim of environmental derogation was at stake. Thus to the extent that the at- 
tacks might not have enjoyed primacy as a jus cogens norm of the inherent right to 
self-defense or as a superior treaty norm under Charter Article 103, the United 
States had a customary right to respond in self-defense under the law of naval war- 
fare, which as part of the LOAC applied under the circumstances in derogation of 
LOS norms through the other rules clauses of the LOS conventions, which are 

173 

now customary law as well. In terms of behavior toward Gulf States not parties 
to the conflict, i.e., those that had proclaimed neutrality, the United States and 
other maritime powers that sent naval forces to the Gulf owed due regard for 
coastal State operations and installations in proclaimed EEZs or fishing zones. 
There is no evidence the United States or other powers did not show due regard for 
proclaimed EEZs or fishing zones; i.e., there do not appear to have been LOS viola- 
tions pertaining to fishing zones or EEZs. 

When the United States and other neutral countries launched aircraft, fixed- 
wing or helicopters, whether on training flights or to support protection of ship- 
ping, those aircraft were entitled to high seas freedom of overflight as long as due 

175 
regard was given high seas freedoms and rights of neutrals and belligerents 

alike. As between neutral air forces and other high seas users, neutral or belliger- 

1 nc. 

ent, the law of the sea governed, subject to the LOAC. When Iran attacked those 
aircraft, they or surface naval forces operating with them were entitled to respond 

177 

in proportional self-defense. 

Neutral warships also had freedom of navigation on the high seas of the Gulf, 

I JO 

subject to their obligation to give due regard to other countries' high seas rights 
and freedoms, whether the other country was a neutral or a belligerent. As in the 

1 7Q 

case of high seas overflights, the LOS governed, subject to the LOAC. When 
neutral surface naval forces engaged in freedom of navigation or naval maneuvers 



254 The Tanker War 



180 

(also legitimate under the law of the sea), were attacked, by fire from bellig- 
erents' aircraft or by belligerent surface naval forces, those surface naval forces 
could respond immediately in proportional self-defense. Thus it was lawful for the 
United States to attack Iranian aircraft, surface naval forces, and minelaying 
forces, e.g., Iran Ajr, in self-defense. It was also lawful to remove mines laid in the 

181 

high seas as a self-defense measure. Just because a neutral did not respond im- 
mediately in self-defense, as in the case of the Samuel B. Roberts, did not mean that 
a right of response did not exist. 

Belligerents also had rights of freedom of navigation and overflight. It was legit- 
imate, e.g., for Iran to conduct naval exercises on the high seas, as well as in its terri- 
torial waters, with due regard for others' high seas rights and freedoms, but not in 

182 

the Strait of Hormuz so as to obstruct or block navigation. It was legitimate for 
both belligerents to exercise freedom of overflight, as long as they gave due 

183 

regard for neutrals' high seas rights, on the way to attack targets of an opponent. 
Belligerents' exercise of high seas freedoms, like the exercise of these freedoms by 
neutrals, were qualified by the requirement that belligerence give due regard for 
neutrals' exercise of these freedoms. Belligerents' conduct under the LOS was also 

r 185 

qualified by the LOAC and other States' rights of proportional self-defense 

1 or 

where it applied. Thus Iran's Airbus had a right to overfly the Gulf as a civil air- 
liner. US forces, engaged in a surface and air naval action with Iranian speedboats 
at the time, were exercising a right of self-defense. If the U.S.S Vincennes honestly 
(but mistakenly) believed the Airbus was an attacking Iranian aircraft, and that a 
short-range surface-to-air missile was a proportional self-defense response, then 
the tragic shootdown was legitimate under self-defense principles. US compensa- 
tion to victims of the accident was made ex gratia, as was Iraqi compensation for the 

187 

Stark attack, i.e., there was no admission of fault by the United States. ' (There is 
nothing unusual about ex gratia payments; defendants in civil lawsuits include 
such a clause in settlement agreements every day, to the effect that any payment or 
other performance is not an admission of fault. Payment in either case does not ad- 
mit liability.) 

3. The Regime of the Continental Shelf in the Persian Gulf 

Claims relating to the offshore adjacent seabed and its subsoil began in the nine- 
teenth century with assertions of national jurisdiction over subterranean mines; 
these claims occasionally went beyond what a coastal State claimed for a territorial 

188 

sea. Other early assertions of rights to the adjacent waters' seabed and subsoil re- 
lated to claims to fishing rights, and these also sometimes went beyond territorial 

189 

sea^claims. Early writers disagreed as to whether the seabed surface beyond a 
territorial sea was equivalent to the high seas or appurtenant to the adjacent land 
and subject to effective occupation "subject only to no unreasonable interference 
in the free use of the high seas above." Great Britain claimed prescriptive rights 



Law of the Sea 255 



for offshore pearl fisheries near Ceylon (Sri Lanka) and in the Persian Gulf, and 
there were Australian and Tunisian claims to offshore sedentery fisheries, partly 

191 

based on municipal law. The only known early treaty dividing a continental 
shelf was the 1942 UK-Venezuela agreement for exploiting oil resources between 

Trinidad and Venezuela in the Gulf of Paria. The parties disclaimed claims to high 

192 
seas rights or to passage or navigation rights. 

a. Developments Since World War II. Contemporaneous with publishing a fisher- 

193 
ies jurisdiction claim, the United States issued another executive proclamation 

194 

in 1945, asserting jurisdiction and control over natural resources of the subsoil 
and seabed of the continental shelf beneath the high seas off the United States. The 
claim was subject to international agreements with adjacent nations "in accor- 
dance with equitable principles," and, equally importantly, the proclamation 
unequivocally asserted, "The character as high seas of the waters above the conti- 
nental shelf and their right to free and unimpeded navigation are in no way thus af- 
fected." Although national security had been advanced during World War II State 

195 

Department considerations of the proclamation, it asserted use and conserva- 
tion of shelf natural resources and "self-protection compelling] the coastal nation 
to keep close watch over activities off its shores. . . necessary for utilization of these 
resources" as rationales for the claim. The US Congress passed the Outer Conti- 
nental Shelf Lands Act (OCSLA) 197 and the Submerged Lands Act in 1953. 198 
OCSLA specifically provides that the Act should not be construed to affect high 

199 

seas fishing and navigation rights. 

A spate of continental shelf claims followed. While most States followed the 
US lead in not asserting jurisdictional rights over high seas areas to control naviga- 
tional or passage rights, a handful did claim, or would seem to have claimed, 
such: 201 Argentina; 202 the CEP States, Chile, 203 Ecuador 204 and Peru, 205 culmi- 

yOf. 707 70S 70Q 

nating in the Declaration of Santiago; El Salvador; Honduras; Mexico. 
In each of the latter cases the United States and other countries protested claims of 

210 

jurisdiction or right to regulate high seas freedoms, navigation or passage. As 
late as 1985 Chile and Ecuador asserted claims beyond 200 miles, which the United 

21 1 

States protested. 

During the early postwar era, Saudi Arabia and the United Kingdom, on behalf 
of certain Persian Gulf sheikdoms, proclaimed sovereignty over offshore conti- 

212 

nental shelves but only for exploitation purposes. In 1955 Iran proclaimed a 
continental shelf for the Gulf and the Gulf of Oman, but it did not purport to affect 

in 

superjacent waters or other States' installation of submarine cables. Iraq also 
claimed a continental shelf without a reservation like Iran's. Other Gulf States 
(Bahrain, Dubai and Sharjah of the UAE, Kuwait, Oman, Qatar) had continental 

2 1 S 

shelf claims and negotiated boundary treaties for these rights. Nevertheless, all 
Gulf States— Bahrain (1949, when under UK protection; 1958, 1971), Iran (1955, 



256 The Tanker War 



1958, 1968, 1969, 1971, 1974, 1975), Iraq (1957), Kuwait (1949, when under UK 
protection; 1965, 1968), Oman (1972, 1974), Qatar (1949, when under UK protec- 
tion; 1965, 1969), Saudi Arabia (1949, 1958, 1965, 1968), States of the UAE (1949, 
when under UK protection; 1968, 1969, 1971, 1975) — have asserted offshore sea- 
bed rights by unilateral proclamation (e.g., those of 1949) or by agreement with op- 
posite or adjacent countries. These treaty-defined areas end at an agreed meeting 
line in mid-Gulf for the most part or extend the coastal boundary seaward. 
The Continental Shelf Convention resolved definitional, dimensional and ju- 

717 

risdictional issues erupting after the US and other proclamations or treaties. 
The shelf is defined as adjacent submarine seabed and subsoil outside the territo- 
rial sea, to a depth of 200 meters or beyond that where superjacent waters' depth 
permit natural resources exploitation. Islands can have a continental shelf. 
Agreements must determine opposite States' boundaries; absent a treaty, the 
median line is the boundary, "unless another boundary is justified by special cir- 
cumstances." Similarly, agreements were to determine adjacent States' shelf 
boundaries, without which the line was to be "determined by. . . the principle of 
equidistance from the nearest points of the baselines from which the breadth of the 

219 

territorial sea of each State is measured." In 1965 the Restatement (Second), For- 

220 

eign Relations accepted Convention principles. The 1969 North Sea Continental 
Shelf Cases, however, concluded that the Convention's "special circumstances" 
rules had not yet crystallized into custom, in a controversy not covered by the Con- 
vention — being not between adjacent or opposite States — and where one State was 

221 
not then a treaty party. 

Although a coastal State has sovereign rights to explore and exploit shelf natu- 

222 

ral resources, which include both living and non-living resources, "rights of the 
coastal State. . . do not affect the legal status of the superjacent waters as high seas, 

223 

or. . . the airspace above these waters." Article 5(a) underscores this, declaring: 
"[EJxploration of the. . . shelf and the exploitation of its natural resources must not 
result in any unjustifiable interference with navigation, fishing or the conserva- 
tion of the living resources of the sea[.]" Exploration or exploitation cannot inter- 
fere with fundamental oceanographic or other scientific research whose results 
will be published. 

Certain special continental shelf uses — submarine cables or pipelines, artificial 

225 

installations, tunnelling — are subject to special rules. The High Seas Conven- 
tion declares the rights to lay submarine cables and pipelines are high seas usage 
rights, but that they are subject to the principle that these freedoms, and others rec- 
ognized by general principles of international law, must be recognized by States 
with "reasonable regard to the interests of other States in their exercise of the free- 

y?fi 727 

dom of the high seas." This is also a customary rule of international law. The 
Convention says that a coastal State many not impede other States' submarine ca- 
ble or pipeline laying, subject to the coastal State's rights to take reasonable 



Law of the Sea 257 



measures for exploiting its continental shelf and exploitation of the shelf s natural 

110 
resources. This is in effect a restatement of the High Seas Convention "reason- 
able regard" principle in the context of the continental shelf and pipelines or ca- 
bles that might cross the shelf. Similarly, the Shelf Convention provides that 
exploring the shelf or exploiting its resources "must not result in any unjustifiable 
interference with navigation, fishing or the conservation of the living resources of 
the sea, nor result in any interference with fundamental oceanographic or other 
scientific research carried out with the intention of open publication." 
"[Installations or devices [permitted on the shelf], nor the safety zones around 
them, may be established where interference may be caused to the use of recog- 

229 

nized sea lanes essential to international navigation." Subject to these limita- 
tions, coastal States may build, maintain or operate installations and other devices 
necessary to explore and exploit their shelf s natural resources. Coastal States may 
establish safety zones of up to 500 meters around these installations and devices 
and take, within these zones, measures necessary for their protection. All ships 
must respect these zones, which do not have the status of islands and therefore do 
not have a territorial sea around them. Coastal States must give due notice of instal- 
lation construction and maintain permanent means to warn of their presence. 

230 

Abandoned or disused installations must be removed. 

The LOS Convention made few changes relevant to high seas rights and free- 
doms issues. High seas navigation and other rights are not affected by a State's con- 
tinental shelf declaration of sovereign rights to explore and exploit its shelf; the 
superjacent water and air space are not affected, as in the Conventions, and a 

231 

coastal State cannot unduly interfere with these high seas rights and freedoms. 
The 200 meter depth-exploitability criteria were changed to a flat 200 nautical mile 

232 

limit, the EEZ limit, or the continental margin, whichever is greater, with a 

233 

maximum 350-mile seaward extension. The seabed and subsoil formula re- 
mained the same. Opposite and adjacent State claims must be resolved by 
"agreement on the basis of international law, as referred to in Article 38 of the [ICJ] 
Statute. . . to achieve an equitable solution." (Disputes relating to treaties already 
in force will be determined by the treaties' terms.) If there is no agreement, LOS 

235 

Convention dispute resolution procedures must be used. 

Coastal State exploration and exploitation rights are the same under the LOS 
Convention, and the same exploitable resources are listed. The 1958 treaty, 
however, placed the burden on scientific research installations or equipment to 
stay out of "established international shipping lanes" and to display appropriate 

237 

warning signals to ensure safety at sea. Research must not "unjustifiably inter- 
fere with other legitimate uses of the sea. . . and shall be duly respected in the course 
of such uses." The LOS Convention sets forth a full range of potential claims re- 
lating to conservation, environmental control and research for all ocean areas; 
these will be examined separately insofar as they pertain to Tanker War issues. 



258 The Tanker Wai 



As in the Shelf Convention, the LOS Convention provides for special uses of the 
::tinental shelf: submarine cables and pipelines, artificial islands and similar 
structures, drilling and tunneling 

En 1969 the ICJ had been reluctant to declare Continental Shelf Convention Ar- 
tides o 1 andc _ asdeclan -.shell boundaries;" by 1984, however, a 

Coon panel in the G id the LOS Convention continental shelf 

Dint at present with general international 
TheL'mtec tested a few States' legislation or proclamations. 

Ml 

i g . Chile a: extend jurisdiction beyond LOS Convention limits.""* 

b. Conclusions. Thus ct to obligations to avoid interfering unduly with shelf 

ex" D M exploitation, or to exerc i se safety it sea. the right of warships and 

merchant vessels to navigate the high seas water column covering the continental 

shelf continues una:- >y the LOS Convention, whether binding as a treaty or 

reflect errations such as the Santiago Declaration, 

unilateral pre uncements some treaties' to the contrary- notwith- 

Moreover, :he:e is nothing in the law of the sea conventions to bar a 

j State from using its continental shelf for placing its military installations 

there First, since a proclaimed shelf is subject to the coastal State's sovereignty for 

puj thee istal State has the inherent right of 

j ■ ^ 

self-defense under the Chi: .end those interests. Second, to the extent 

that the LOAC. which includes the law of naval warfare, might apply to a situation, 

those bodies ;: laa are >eparate from the LOS . The relationship between 

belligerents 1 operations in warns -rove a neutral's proclaimed continental shelf, 

or to use a neutral's shelf for emplacement of weapons directed against an opposing 

- ■ -~ 
bellicerer.:. is more complex; this is analyzed in Chapter V- 

The Seabed Anns Control Treaty forbids placing nuclear weapons, or other 
weapons of mass destruction, on these^r^i and ; :ean floor bevond 12 miles from 
the baseline bom which the territorial sea is measured.""*" The treaty does not de- 
fine weapons of mass destruction, nor does it covet weapons in the water column, 
as k nsj ai :r.zy nc not tethered I :he bottom, or other weapons, e.g., conventional 
mines, that are not a i : : mass ~e>:ruction. There are opposing positions on 

the point, but the foregoing appears to be the better view.""* From the LOS per- 
>::::.:. all the coastal State obtains with a proclaimed continental shelf is the 
tight :: expk re and exploit it for purposes stated in the law of the sea: the shelf is 
no: subject to an unlimited i : treignty claim. LOS freedoms apply to the water 
c .:mn: in any event other States' Charter rights to self-defense and LOAC options 
are separate from LOS principles." The Treaty recognizes the ditterence by stat- 
ing that its terms do not support or prejudice positions under the Territorial Sea 

mention and other as? sets :: die law of the se; . * Those placing such devices 
must have due regard for ^ coastal State's continental shelf rights, however."" 



Law of the Sea 259 



c. The Continental Shelf in the Persian Gulf and the Tanker War. The Persian 

253 
Gulf is a relatively narrow, shallow body of water. For all practical purposes, 

there is no deep seabed in the sense of the Continental Shelf Convention or the 
LOS Convention. There is no Area within the meaning of the LOS Convention. 
Since it is a basin without any continental slope or deep seabed, theoretically the 
Gulf has no continental shelf. There are no reports of excessive claims with 
respect to Gulf States' offshore sea floor claims. Disputes over offshore islands 
continue, however. 

Insofar as the high seas parts of these offshore areas (which in a sense can be con- 
sidered continental shelves) are concerned, there appears to be no record of 
belligerents' impairing usage by neutral coastal States during the Tanker War. 
Belligerents and neutrals alike owed neutrals due regard for those neutrals' exer- 

756 

cise of continental shelf rights. To be sure, there is evidence of attacks on dhows, 
i.e., possibly vessels operating above a proclaimed shelf, or other vessels that may 

257 

have been servicing installations on a shelf. Since these incidents are concerned 
as much with attacks on a ship engaged in navigation in the Gulf, analysis of the le- 
gitimacy of the attacks appears in Chapters III and V. Iraq attacked Iranian off- 
shore installations that may have been connected with shelf operations, including 

258 

pumping stations and other facilities. Because these were attacks by a belliger- 
ent upon its opponent, the law of armed conflict applied through operation of the 

259 

LOS other rules clauses, by then a treaty and customary norm. Chapter V dis- 
cusses legitimacy of these attacks from an LOAC perspective, and Chapter VI ex- 

760 

amines them in the context of the developing law of the maritime environment. 

The United States responded to Iranian attacks on US-flagged tankers by de- 
stroying Iranian offshore platforms that were a source of the attacks and which 
may have been connected with shelf activities legitimate under the LOS. This 
was a legitimate act of self-defense under Article 5 1 of the Charter, whether seen as 
ajus cogens -protected right or as trumping the LOS. As explained in Chapter V, 
the attacks were also proportional under the law of naval warfare; since there 
was no appreciable environmental damage resulting from the attacks, no environ- 
mental derogation claim was at stake. Thus to the extent the attacks might not 
have enjoyed primacy as exercise of a jus cogens norm of the inherent right of 
self-defense or as a superior treaty norm under Article 103 of the Charter, the 
United States had a customary right to respond in self-defense under the law of na- 
val warfare, which as part of the LOAC applied under the circumstances in der- 
ogation of law of the sea norms through the other rules clauses of the LOS 

765 

conventions, which are now customary law as well. In terms of behavior toward 
Gulf States not parties to the conflict, i.e., those which had proclaimed neutrality, 
the United States and other maritime powers that sent naval forces to the Gulf 
owed due regard for their operations and installations in proclaimed continental 
shelves. There is no evidence that the United States or other powers did not do 



260 The Tanker War 



so; i.e., there appears to have been no violations of the law of the sea as it pertained 
to continental shelves in the Gulf. 

4. The Territorial Sea and the Contiguous Zone 

Commentators have traced States' claims to territorial seas from the Middle 
Ages through the 1958 LOS conference, the 1958 conventions, the unsuccessful at- 
tempts to establish a limit in 1 960 and thereafter. Aside from examining general 
claims patterns, with particular examination of the 1958 Conventions and 1982 
LOS Convention, those waters will not be navigated again. This Part also reviews 
principles of the contiguous zone. Claims going beyond the territorial seas, apart 
from the contiguous zone, however measured and for whatever purpose, have been 
addressed in previous parts, and that material will not be repeated here either. 

a. Analysis: From a Three-Mile Rule to a Twelve-Mile Norm Under the 1982 
LOS Convention. ". . . [B]y 1926, the three-mile limit was in every sense a rule of 

Jf.0 

international law," according to the commentators. However, even in the early 
part of this century there were exceptions. 

The trend had begun with Great Britain's Customs Consolidation Act of 1876, 
which asserted a one-league belt of waters in which England claimed a right to visit 

269 

and search all vessels. "Of all the factors influencing the growth of the three- 
mile rule — treaties, laws, court decisions, and writings of the experts — the. . . 
Act. . . probably went the furthest in establishing the three-mile limit as a rule in 

270 

the law of nations.'" (At the time, of course, Brittania ruled the waves, not only in 
terms of merchant fleet tonnage, but also because of the Royal Navy.) Two years 
later Britain asserted criminal jurisdiction over only one league of coastal waters in 

271 

the Territorial Waters Jurisdiction Act. The United States had claimed a 
three-mile territorial sea in 1793, when US Secretary of State Thomas Jefferson 

272 

wrote the British and French ministers to the United States. A year later Con- 
gress passed legislation asserting criminal jurisdiction; the United States had be- 

273 

come the first country to formally claim three miles. To be sure, the rest of the 
nineteenth century saw conflicting claims that spilled over into the twentieth cen- 
tury, but by 1901 the United States had formally reaffirmed three miles as its 

275 

territorial sea. Its short-lived Naval War Code of 1900 had similarly asserted a 
three-mile limit for armed conflict situations. Other States, bowing to British 

277 

diplomatic pressure, began to redefine their territorial belt as three miles. Arbi- 
trations and prewar treaties seemed to point the way to universal acceptance of the 

278 

norm. However, before 1926 there remained substantial dissent. Hague Con- 
vention VIII (1907) forbade laying mines within three miles of a neutral's coast, 
but the Second Hague Peace Conference failed to agree on a uniform general rule 

279 t • 

for naval warfare situations. Just before and during World War I important 
maritime powers, e.g., France, Italy, Russia, and other States asserted claims to 



Law of the Sea 261 



more than three miles." And although the International Law Association had 

281 

modified its stance by 1 924 to opt for a three-mile limit, the Institute of Interna- 
tional Law declared for the same limit but added that "International usage may 

282 

justify the recognition of an extent greater or less . . .." In 1927 the influential 
Harvard Research Draft supported a similar basic three-mile limit with an adjacent 
band of the high seas subject to customs, navigation, health or police regulations, 

283 

"or for [a State's] immediate protection." The 1930 First Act of the League of 
Nations Conference for the Codification of International Law could not agree on a 

284 

limit. Iran claimed a 6-mile territorial sea in 1934, recognizing a right of inno- 
cent passage for warships, including submarines navigating on the surface, except 
for vessels in a state of war, in which case the law of maritime neutrality would ap- 
ply. Iran also reserved the right to prohibit foreign ships from entering certain ter- 

285 

ritorial waters, i.e., "closed zones," for national security reasons. 

Bilateral agreements between the United States and its major trading partners, 
1924-30, to assist in US national prohibition law enforcement, carefully divided 
between those nations agreeing with the United States on the three-mile limit and 

IQf. 

those which reserved their position on the issue. 

After World War II certain Latin American States tried to fold claims for a wide 
continental shelf and EEZ into a territorial sea of the same breadth; the claims 

287 

were protested. The Soviet bloc and the People's Republic of China asserted 

288 

12-mile territorial sea claims during 1950-60. In 1951 the United Kingdom con- 
ceded Norway's historic claim to a four-mile limit in the Fisheries Case, which re- 

289 

solved a method of determining baselines. In 1949 Saudi Arabia declared a 

290 

6-mile territorial sea as part of its sovereignty. In 1955 the Philippines, and in 

291 

1 957 Indonesia, asserted a 1 2-mile territorial belt around their archipelagoes." In 

292 

1958 Saudi Arabia expanded its territorial sea claim to 12 miles. The 1958 Terri- 
torial Sea Convention failed to settle on a limit for the territorial sea, but declares 

293 

coastal State sovereignty over the belt of coastal waters and airspace. The next 

294 

year Iran claimed a 12-mile territorial sea. 

The Convention does, however, allow coastal States to declare a contiguous 
zone of up to 12 miles, subject to opposite States' agreeing on a dividing line (in the 
absence of which the median line from baselines forms the division), for: prevent- 
ing infringement of its customs, fiscal, immigration or health regulations within 
its territory or territorial sea, and for punishment of infringements of these regula- 

295 

tions committed within its territory or territorial sea. The contiguous zone is 
part of the high seas outside of the territorial sea under the Territorial Sea Conven- 
tion. Thus in the case of the United States, which had a 3-mile territorial sea in 
1958, the outer 9 miles of its 12-mile contiguous zone were high seas. The High 
Seas Convention provides for a right of hot pursuit from the zone if coastal State 
authorities have reason to believe a foreign ship has violated its customs, fiscal, im- 
migration or health laws in the coastal State's territory or territorial sea." Iran 



262 The Tanker War 



had proclaimed a 12-mile "zone of maritime supervision" when a 6-mile territorial 
sea was claimed in 1934; the claim was amended in 1959 to assert a 12-mile territo- 

299 

rial sea. ' Saudi Arabia had claimed a 6-mile contiguous zone for "maritime sur- 
veillance" relating to security, navigation and fiscal matters beyond its 6-mile 
coastal sea in 1949; this was expanded to a 12-mile contiguous zone, coincident 
with the Territorial Sea Convention limit, in 1958. However, just before the 1958 
UN LOS Conference, Saudi Arabia expanded its contiguous zone to 18 miles and 
its territorial sea to 12 miles. 

The Convention establishes methods for measuring baselines for the territorial 

301 

sea, and declares rules for innocent passage through the territorial sea. All 
States' ships enjoy a right of innocent passage through the territorial sea, subject to 
the Convention's other principles. Passage means navigation through the territo- 
rial sea for traversing that sea without entering internal waters, for proceeding to 
internal waters, or for making for the high seas from internal waters. Passage in- 
cludes stopping and anchoring, but only incident to ordinary navigation or if nec- 
essary because of force majeure or distress. Passage is innocent "so long as it is not 
prejudicial to the peace, good order or security of the coastal State." Such passage 
must take place in conformity with the Convention and "other rules of interna- 
tional law." Foreign flag fishing vessel passage is not considered innocent if these 
vessels do not observe published coastal State regulations designed to prevent 
these vessels from fishing in the territorial sea. Submarines must navigate on the 

302 

surface and show their flag, unless a State consents to submerged transit; no 
State has done so publicly. Aircraft do not have a right of innocent passage 
above the territorial sea, unless allowed to do so by the coastal State; most 
coastal States have agreed to allow commercial aircraft overflight, but not neces- 
sarily military or other State aircraft. Coastal States may not hamper innocent 
passage and must give appropriate publicity to dangers to navigation within their 

territorial seas of which they have knowledge. However, surface warships enjoy 

307 
a right of innocent passage. 

Coastal States may act to prevent passage that is not innocent. For ships pro- 
ceeding to internal waters, a coastal State may take necessary steps to prevent 
breaches of conditions to which admission of those ships to those waters is subject. 
Subject to a provision related to straits passage declaring that there can be no sus- 
pension of international straits passage, a coastal State may, without discrimina- 
tion among foreign-flag vessels, suspend temporarily innocent passage of these 
vessels in specified areas of its territorial sea if the suspension is necessary for pro- 
tection of the coastal State's security, and only after the suspension has been pub- 

308 

lished. How long a temporary suspension may be imposed is not clear, but it 

309 

cannot be factually permanent. Foreign-flag vessels in innocent passage must 
conform to coastal State regulations enacted in conformity with the Convention 
and "other rules of international law," as well as regulations relating to transport 



Law of the Sea 263 



310 



and navigation. The Convention also provides for charges on merchant ships 

31 1 

and criminal and civil jurisdiction over merchantmen. All of the foregoing ap- 
plies to government ships operated for commercial purposes, and all but the civil 
jurisdiction rules apply to government ships operated for non-commercial pur- 
poses. The Convention does not affect government ships' immunities enjoyed un- 

312 

der the Convention or "other rules of international law." If a warship does not 
comply with a coastal State's regulations on territorial sea passage and disregards a 
request for compliance, the coastal State may require that warship to leave the ter- 

313 

ritorial sea. 

A 1960 conference failed to resolve the issue of the width of the territorial sea; 
debate centered around a 6 or 12-mile belt, and a compromise of a 6-mile territorial 
sea coupled with a 6-mile fishing zone failed by one vote. The 1965 Restatement 

(Second) cautiously says that "A state does not violate the rights of another state by 

315 
setting the breadth of the territorial sea at three nautical miles," but otherwise 

generally confirms Convention principles. Whether the Iranian and Saudi 

317 

claims as of 1980 to 12-mile territorial seas were legitimate is debatable, but by 
the end of the war they were in the clear majority. 

The 1982 LOS Convention declares a 12-mile belt as the maximum claim over 

which a coastal State may claim sovereignty, including its airspace, seabed and 

318 
subsoil. The LOS Convention adopts Territorial Sea Convention baselines 

measuring methodology, adding provisions for low-tide elevations, mouths of 

rivers and reefs, and states that offshore installations and artificial islands are not 

319 
permanent harbor works in determining baselines near ports. The Restatement 

320 

(Third) takes the LOS Convention position on breadth of the territorial sea, not- 
ing that some countries, including the United States at that time (1987), might 

321 

claim less than 12 miles. 

In 1958, 9 of 75 coastal States had claimed a 12-mile territorial sea; 2 claimed 
over 12, and 45 asserted the traditional 3-mile limit. By 1965 26 of 85 coastal States 
claimed a 12-mile sea, 3 claimed over 12, and 32 claimed a 3-mile limit. A decade 
later the figures were: of 1 16 coastal nations, 54 claimed a 12-mile sea, 20 claimed 
more than 12 miles, and only 28 clung to the 3-mile limit. Within a year of the be- 
ginning of the Tanker War (1980) the numbers were: of 131 coastal States, 76 

32? 

claimed a 1 2-mile limit, 25 claimed more, and 23 held to a 3-mile limit. This was 
the trend as delegates began negotiating the 1982 LOS Convention in the Sev- 
enties. It continued as a trend as the Tanker War began in 1980. 

Besides permitting a 1 2-mile territorial sea claim, the 1 982 LOS Convention 
copies the Territorial Sea Convention contiguous zone provisions; its breadth has 
been expanded to 24 miles. The LOS Convention provides that at least the outer 
12 miles of a declared contiguous zone are subject to high seas freedoms of naviga- 
tion and overflight if a coastal State has declared a 12-mile territorial sea. If the lit- 
toral State has a territorial sea of less than 12 miles, it may declare a contiguous 



264 The Tanker War 

325 

zone of up to 24 miles, with the balance of the zone retaining high seas freedoms. 
The coastal State's right of hot pursuit from its contiguous zone under the LOS 
Convention follows High Sea Convention principles. The LOS Convention 
adds a new provision, permitting States to control traffic in archaeological or his- 
torical objects found at sea, stating a presumption that these objects' removal from 
a contiguous zone without coastal State approval results in an infringement within 

327 

coastal State territory or territorial sea of its contiguous zone-related laws. 

In 1983 the US Oceans Policy Statement recognized the rights of other States in 
waters off their coasts, as reflected in the LOS Convention, on the basis of reciproc- 
ity, i.e., if a coastal State recognized the US' and other countries' rights and free- 
doms in the waters of the coastal State. The United States would exercise and assert 
its navigation and overflight rights and freedoms on a worldwide basis consistent 
with the balance of interests reflected in the Convention. The United States would 
not acquiesce in other States' unilateral acts designed to restrict the international 
community's rights and freedoms in navigation, overflight and other related high 

seas uses. The United States continued to claim a 3-mile territorial sea, how- 

328 
ever. The result was that the United States would recognize other countries' 

329 

valid claims under the 1982 LOS Convention navigational articles. ' In that year, 
of 1 39 coastal States, 79 claimed a 1 2-mile territorial sea, the number claiming over 
12 miles had declined to 20, and those claiming a 3-mile limit stood at 25. " In 
1987 the Restatement (Third) recognized a 12-mile territorial sea. The next year 

the United States claimed a 12-mile territorial sea in accordance with the LOS 

332 
Convention. 

By 1989 the number of States claiming a 3-mile limit had declined to 10, among 

them Bahrain, Qatar and the UAE; a decade later it was down to 4. By 1989 Iran, 

Iraq, Kuwait and Saudi Arabia had joined the United States and 103 other States in 

333 

proclaiming a 12-mile territorial sea. " Whether a State was party to the LOS 
Convention or not, and many 12-mile claimants were by 1997, it is fairly safe to say 
the 12-mile limit had become a customary norm by the end of the Tanker War 
(1988), and more certainly so a decade later. A few countries — 19 in 1989 and 15 

335 

in 1997 — continued to assert territorial sea claims greater than 12 miles. These 

336 

were the subject of US and others' diplomatic protests. 

New rules for innocent passage was another major change between the Territo- 
rial Sea Convention and the LOS Convention. The basic right of innocent passage, 
the meaning of passage, and the rule that submarines must navigate on the surface 
unless there is coastal State consent that they remain submerged, remain the same, 
as do rights of protection for the coastal State, principles for charges for traversing 
the territorial sea and criminal and civil jurisdiction applicable to all ships, and the 
statement that with certain exceptions in the treaty, the Convention does not affect 
immunity of warships and government ships operated for non-commercial pur- 
poses. The rule — that if a warship does not comply with coastal State regulations 



Law of the Sea 265 



on territorial sea passage and disregards a request for compliance made to it, a 
coastal State may require that warship to leave the territorial sea — was also re- 
tained, the Convention adding that the offending war vessel must leave "immedi- 
ately." 337 

Principal innovations in the LOS Convention deal with defining innocent pas- 
sage; laws and regulations a coastal State may impose relating to innocent passage; 
providing for sea lanes, traffic separation schemes, foreign nuclear-powered ships 
and vessels carrying nuclear or other inherently dangerous or noxious substances; 
a coastal State's duties; definition of a warship; and flag State responsibilities for 
damage caused by a warship or a government ship operated for non-commercial 
purposes. 

As in the Territorial Sea Convention, the LOS Convention declares that pas- 
sage is innocent so long as it is not prejudicial to the coastal State's peace, good or- 
der or security. Such passage must take place in conformity with the Convention 
"and with other rules of international law," referring to the law of armed con- 

339 

flict. The LOS Convention enumerates activities during passage considered 
"prejudicial to the peace, good order or security" of the coastal State: 

(a) any threat or use of force against the sovereignty, territorial integrity or political 
independence of the coastal State, or in any manner in violation of the princi- 
ples of international law embodied in the Charter of the United Nations; 

(b) any exercise or practice with weapons of any kind; 

(c) any act aimed at collecting information to the prejudice of the defence or secu- 
rity of the coastal State; 

(d) any act of propaganda aimed at affecting the defence or security of the coastal 
State; 

(e) the launching, landing or taking on board of any aircraft; 

(f) the launching, landing or taking on board of any military device; 

(g) the loading or unloading of any commodity, currency or person contrary to 
the customs, fiscal, immigration or sanitary [i.e., health] laws and regulations 
of the coastal State; 

(h) any act of wilful and serious pollution contrary to [the] Convention; 

(i) any fishing activities; 

(j) the carrying out of research or survey activities; 

(k) any act aimed at interfering with any systems of communication or any other 

facilities or installations of the coastal State; 
(1) any other activity not having a direct bearing on passage. 340 

Most commentators say the list is exclusive. As under the Territorial Sea Con- 
vention, submarines transiting the territorial sea must navigate on the surface and 
show their ensign, and innocent passage does not include a right of overflight. 

A coastal State may adopt regulations, in conformity with the Convention and 
"other rules of international law," i.e., the LOAC, relating to innocent passage 
through the territorial sea with respect to safety of navigation and regulation of 
maritime traffic; protection of navigational aids and facilities and other facilities 



266 The Tanker War 



or installations; protection of cables and pipelines; conservation of the sea's living 
resources; prevention of infringement of the coastal State's fisheries laws; preser- 
vation of the coastal State's environment and prevention, reduction and control of 
pollution of the coastal State; marine scientific research and hydrographic 
surveys; and prevention of infringement of the coastal State's customs, fiscal, im- 
migration or health laws. These laws do not apply to foreign ship design, construc- 
tion, manning or equipment unless the laws give effect to "generally accepted 
international rules or standards." The coastal State must publicize these laws. For- 
eign ships in innocent passage must comply with these laws and all generally ac- 
cepted international regulations relating to prevention of collisions at sea. The 
Convention list of regulations is "exhaustive and inclusive." 

The Convention allows coastal States to require foreign ships exercising the 
right of innocent passage to use sea lanes and traffic separation schemes, where 
necessary for navigational safety. Tankers, nuclear-powered vessels and ships car- 
rying nuclear or other inherently dangerous or noxious substances or materials 
may be required to confine their passage to these sea lanes. A coastal State must in- 
dicate these sea lanes and separation schemes on publicized charts. Foreign nu- 
clear-powered vessels and ships carrying nuclear or other inherently dangerous or 
noxious substances must carry documents and observe special precautionary mea- 
sures established for them by international agreements while in innocent pas- 

348 
sage. 

The LOS Convention modified the coastal State's duties and obligations with 
respect to innocent passage. Besides declaring that a coastal State may not hamper 
innocent passage in form or fact, the Convention stated that in particular, in apply- 
ing the Convention or regulations adopted in conformity with the Convention, a 
coastal State may not "(a) impose requirements on foreign ships which have the 
practical effect of denying or impairing. . . innocent passage; or (b) discriminate in 
form or fact against ships of any State or against ships carrying cargoes to, from or 
on behalf of any State." As in the 1958 Convention, a coastal State must publicize 
any danger to navigation, of which it has knowledge, in its territorial sea. A coastal 
State may suspend innocent passage temporarily in specified areas of its territorial 
sea if suspension is necessary for protecting its security. This suspension may take 

349 

effect only after it has been published. 

If a warship or other non-commercial government vessel does not comply with 
legitimate coastal State regulation concerning innocent passage, the flag State 
bears responsibility for any loss or damage to the coastal State resulting from this 
non-compliance. 

Despite Territorial Sea Convention and LOS Convention articles according a 
right of warship unnanounced and unimpeded innocent passage, as of 1989, 43 
States, including Iran, claimed a right to control foreign-flag warship entry into 
their territorial seas, requiring prior authorization or permission, prior notice, or 



Law of the Sea 267 



352 

limits on numbers present at one time. Twenty-six States, including Iraq and 

353 

Oman, specifically recognized the right of warship innocent passage. 

By 1996 57 States had claimed contiguous zones of 4 to 24 miles, including Bah- 
rain, Iran, Iraq, Oman, Qatar, Saudi Arabia and the UAE. Although the Con- 
gress considered in 1991-92 legislation to extend the US contiguous zone to 24 

355 
miles, it failed to pass. In 1 999, however, the United States proclaimed a 24-mile 

contiguous zone, as reflected in the LOS Convention. The US proclamation stated 
that high seas freedoms, e.g., of navigation and overflight, apply in the zone and 
that the proclamation did not alter US or other States' rights and duties in the US 
EEZ. Two countries bordering the Persian Gulf were among 1 8 States asserting 
a right to include protecting national security interests; Iran did so in 1993 and 
Saudi Arabia at some earlier date. The United States and other countries have pro- 
tested most of these claims as not being within rights permitted under the Territo- 

357 
rial Sea Convention or the LOS Convention. These general security claims 

might be contrasted with the US defense zones of the early part of this century, 

358 
which limited or temporarily excluded navigation. The latter, promulgated de- 
cades before standards were stated in the LOS conventions, would still pass muster 
in most cases. 

The rules for baselines determinations are virtually the same under the 1958 

359 
and 1982 conventions. However, the measurement of them has caused numer- 

36ft 
ous diplomatic protests and US FON operations, the principal problem being 

declarations of straight baselines under the Territorial Sea Convention and the 
LOS Convention. If a country claims a territorial sea and a contiguous zone or 
other area, e.g., an EEZ, fishing zone or continental shelf based on erroneous calcu- 
lation of baselines pushing lines toward the high seas, the result may be that these 
areas' outer boundaries will encroach on what should be high seas under the 1958 
or 1982 conventions. There have been numerous cases where States have protested 

36? 

erroneous assertions of straight baselines. Of over 75 States and their dependen- 
cies in a 1996 list, 4 countries bordering the Persian Gulf, Iran, Oman, Saudi Ara- 
bia and the UAE, had baselines the United States considered miscalculated. 
However, only those of Iran, Oman and Saudi Arabia were declared before or dur- 

363 

ing the Tanker War. Since the Persian Gulf is so narrow, its coastal States when 
asserting claims to the continental shelf, etc., have been forced to divide sover- 
eignty or jurisdiction among them, and the only issues related to erroneous 
baseline claims involve territorial sea and contiguous zone claims that may be ex- 
cessive. If these claims were excessive, the result could be that a Persian Gulf 

365 

coastal State might claim policing authority in a contiguous zone area that is 
subject only to high seas law, such law perhaps being limited by legitimate EEZ, 

366 

continental shelf, etc., claims considerations. Similarly, a territorial sea claim 
that extends too far into the high seas could result in claims by the coastal State of 
improper activity in the disputed waters, with a counterclaim by the State of the 



268 The Tanker War 



flag of, e.g., a transiting warship that the area is high seas for navigational and other 
purposes, although perhaps limited by legitimate continental shelf, etc., claims 
considerations. 

b. Conclusions. A US movement toward ratifying the 1982 LOS Convention may 
mean that tangles of claims resulting from Territorial Sea Convention deficiencies 
will gradually be eliminated. However, issues of warship innocent passage, exces- 
sive baseline claims, excessive territorial sea and contiguous zone claims and dis- 
putes over whether the LOS Convention lists of activities for declaring passage 
prejudicial to coastal State peace, good order or security is exclusive, will continue 
to fuel debate on the meaning of the LOS Convention as it applies to the territorial 
sea and contiguous zone. 

c. The Territorial Sea, the Contiguous Zone, and the Tanker War. There were few 
LOS issues related to territorial sea or contiguous zone passage during the Tanker 
War. Although Iran purported to restrict the right of warship innocent passage in 
her territorial sea, there is no record of any incidents arising during the Tanker 
War; Iran's claim to assert national security as a basis for contiguous zone jurisdic- 
tion came over a decade after the conflict. There is no record of Saudi Arabia's 
claim of national security for her contiguous zone figuring in the war. Although 
many Persian Gulf States began the war with territorial seas of less than 12 miles, 
by the end of the conflict most had asserted a 1 2-mile belt as the 1982 LOS Conven- 
tion and customary law allow, and two (Iraq, Oman) had explicitly said warships 

369 

were entitled to innocent passage like merchantmen. Saudi Arabia proclaimed 
a safety corridor through her and GCC States' territorial sea, presumably with 
those States' authorization, to facilitate tanker traffic; there was nothing in the law 
of the sea forbidding this. Indeed, the LOS Convention allows establishment of sea 
lanes and traffic separation schemes. Similarly, Iran was free under the LOS to di- 
rect coastal convoying of its ships in its territorial sea as a means of controlling ter- 
ritorial sea traffic lanes and traffic separation. However, these convoys were 

subject to Iraqi attack under the LOAC if they were carrying war-fighting or 

370 
war-sustaining goods, e.g., oil. 

Two aspects of Iranian naval maneuvers deserve mention, however. When Iran 

371 

conducted naval maneuvers in Saudi territorial waters, Iran committed a clear 

377 

violation of the LOS Convention and a violation of the more general standard of 
the Territorial Sea Convention, i.e., which forbids "Passage. . . prejudicial to the 

373 

peace, good order or security of the coastal State." Given the Iranian track re- 
cord by then, these maneuvers were clearly prejudicial to Saudi Arabia under both 
the LOS Convention and the Territorial Sea Convention. The maneuvers, de- 
pending on their nature, also may have violated the law of naval warfare, appli- 
cable under the other rules clauses of the Territorial Sea Convention and the LOS 



Law of the Sea 269 



375 

Convention. On the other hand, to the extent that Iran proposed to conduct na- 
val maneuvers in its own territorial sea, whether part of territorial waters permit- 
ted under the LOS or high seas included within an excessive claim due to 

"inf. 

erroneous baseline claims, such military activity was allowable; its territorial 

377 

sea was under Iranian sovereignty. Only if Iran coupled these maneuvers with 
closure of its territorial sea more than temporarily, without equal treatment of all 

378 379 

seafarers, or without notice was Iraq's protest justified. The record does not 
show that any of this was the case. However, to the extent Iranian maneuvers may 
have affected traffic through the Strait of Hormuz, which was nearby, different cri- 

380 

teria, i.e., those for straits passage, were involved. 

5. Access to Ports, Roadsteads and Internal Waters 

"Among writers, the better line of authority supports the view that as a point of 

law, foreign merchant vessels in port are subject to the local jurisdiction On the 

other hand,. . . [other authorities] indicate that there are exemptions from the local 
jurisdiction as a matter of right, and not merely as a matter of courtesy or co- 

381 

mity." Similarly, territorial waters and ports are, "as a rule, open to men-of-war 
as well as to merchantmen of all nations, provided they are not excluded by special 

382 

international treaties or special Municipal Laws of the littoral States." Never- 
theless, "[t]he status of the waters in ports, harbors, roadsteads, and the mouths of 
rivers is. . . different from that of the waters of the maritime belt. . . ; for the former 

383 

are national or internal, and the latter territorial." While Oppenheim's treatise 
made these statements before the LOS conventions were negotiated, they are still 

384 

true. Modern port facilities are much more complex today, but principles gov- 
erning access to them are similar. 

The ensuing analysis examines the general right of access to internal waters (a 
collective term for ports, roadsteads, rivers and canals) for warships and merchant 
vessels under the law of the sea. Particular claims for protection of values {e.g., 
power, through attempts to assert jurisdiction over ships) will be noted. The geo- 
graphic arena for analysis ends, however, at the water's edge; no attempt will be 
made to explore manipulation of the wealth or other processes through devices 
such as customs duties, or access to the land through immigration. 

a. Analysis. Principles of relatively exclusive coastal State control of the territorial 

385 

sea apply to internal waters. They are part of the State's sovereign territory. In- 
ternal waters have been variously defined and titled, and in some cases national 
legislation whose primary impact is from the sea, e.g., the US Inland Rules of the 

387 

Nautical Road, governing signals and lights for transiting US navigable waters, 

388 

may require compliance while in coastal State territorial seas. The principal 
concern here is the arena of port facilities, "a place where ships are in the habit of 

389 

coming for the purpose of loading or unloading, embarking or disembarking;" 



270 The Tanker War 



roadsteads; and access to these, as through the territorial sea, internal waters and 
navigable rivers. "Internal waters," for purposes of this study, are, as stated in the 
Territorial Sea Convention, "Waters on the landward side of the baseline of the 
territorial sea;" this is also the 1982 LOS Convention definition. Since the 
outermost permanent harbor works forming an integral part of a harbor system are 
part of the coast, and the coast is the fundamental baseline, waters on the 
other side of the line are internal waters. Roadsteads, if normally used for loading, 
unloading and anchoring ships, and if wholly or partly outside the territorial sea's 

394 

outer limit, are included in the territorial sea. Thus roadsteads within the 
territorial sea and extending outward into the high seas create a jurisdictional 

395 

"bulge" in favor of the littoral State. On the other hand, if a roadstead is partly 

396 

within territorial and internal waters, the baselines approach operates to split it 

into two parts. The LOS Convention adds that offshore installations and artificial 

397 
islands are not considered permanent harbor works and therefore are not part of 

the territorial sea. Since the baseline division for rivers flowing into the sea is a 

398 
straight line across the mouth, all landward river waters are internal in nature, 

399 

except rivers forming a boundary or rivers declared open to all traffic by treaty. 
The Shatt al-Arab is an example of such a waterway. 

Early nineteenth century State practice permitted receiving, during peacetime, 

vessels of all countries into. . . ports, to whatever party belonging, and under whatever 
flag sailing, pirates excepted, requiring of them only the payment of the duties, and 
obedience to the laws while under their jurisdiction without adverting to. . . whether 
they had committed any violation of the allegiance or laws obligatory on them in the 
countries to which they belonged,. . . in assuming such a flag, or in any other 
respect. 401 

That is still the rule today. 

Schooner Exchange v. McFaddon restated the customary right of foreign war- 
ships to enter ports in time of peace unless local law closed the ports. Customary 
law once stated that during war enemy warships can be kept from ports by force, 
e.g., blocking access by obstructions that result in also barring neutral merchant 
traffic, but such obstructions should "be retained only as long as needed for bellig- 
erent purposes." If a channel for nonbelligerent shipping was left open, with 
designated hours for travel, then customary principles would be satisfied. To- 
day the LOS Convention allows closure of the territorial sea on a temporary basis, 
without discrimination in form or fact among foreign ships, if suspension is neces- 
sary to protect a coastal State's security and if the coastal State publishes notice of 
closure. Territorial sea closure under these circumstances necessarily impli- 
cates closure of a port within the territorial sea and those on the internal waters 
side of the line. The coastal State and the flag State of a transiting warship or 
merchantman retain their self-defense rights under these circumstances, the 



Law of the Sea 271 



coastal State its territorial interests and the vessel's flag State its interests in the 
ship 408 

The 1982 Convention also follows prior rules in the 1965 Transit Trade Con- 
vention governing landlocked States, i.e., those countries that have no seacoast, the 
Territorial Sea and High Seas Conventions, and the 1921 Freedom of Transit 
Convention, and principles in the GATT, art. V. Landlocked States have 
rights of access to and from the sea to exercise their rights under the law of the sea, 
including transit through countries (transit States) whose territory a landlocked 
State must use to access the sea. Landlocked and transit States must agree on terms 
of transit through bilateral, multilateral or regional agreements. Landlocked 
and transit States may agree upon overland pipelines in place of rail, road or water 
transport. Vessels flying a landlocked State flag must be treated equally in mari- 
time ports. Transit States, "in the exercise of their full sovereignty over their 
territory,. . . have the right to take all measures necessary to ensure that the rights 
and facilities provided for in this Part [of the LOS Convention] shall in no way in- 
fringe their legitimate interests." The Transit Trade Convention declares that 
it does not prescribe belligerents' and neutrals' rights and duties during war, say- 
ing that it continues in force during wartime "so far as such rights and duties [of 
belligerents and neutrals] permit." The Convention is also subject to the Char- 
ter. The LOS Convention and the 1958 LOS conventions achieve the same re- 
sult through application of the other rules clauses, which declare that the law of 
armed conflict applies in certain situations. To the extent that Trade Transit 
Convention, the LOS Convention and High Seas or Territorial Sea Convention 
provisions coincide, they reinforce customary law on the subject of access of land- 
locked States. 418 

The LOS Convention prevails over the Territorial Sea Convention for parties 

419 

to the LOS Convention; however, as noted above, many of its provisions are 
similar to or identical with the 1958 Convention, and therefore should be given 
similar or identical application. The LOS Convention also provides that it does 
not alter States' rights and obligations arising from other treaties compatible with 
it if they do not affect enjoyment of other States' rights and obligations under the 
Convention, nor does the Convention affect international agreements expressly 
permitted or preserved by it. Moreover, the LOS Convention must be consid- 
ered in connection with other sources. Similarly, the Territorial Sea Con- 
vention does not affect treaties already in force and must be considered in 
connection with custom and other sources. Therefore, examination of past 
trends in the law, with particular emphasis on US practice, is appropriate. 

States have exercised the option stated in Schooner Exchange to limit entry of 
foreign warships, particularly during times of crisis. In 1805, seven years before 
Exchange, the US Congress authorized the President to forbid entrance of a foreign 
armed vessel or its master upon proof that a trespass, tort or spoilation had been 



272 The Tanker War 



committed, or that vessels trading in US commerce had been interrupted or vexed. 
The legislation expired in 1807. In that year President Thomas Jefferson ex- 
cluded British vessels by proclamation because of the Chesapeake affair. In 1 820 
Congress forbade warship entry into all but designated major commercial ports ex- 

428 

cept in distress situations. The legislation expired two years later. During the 
Civil War President Abraham Lincoln directed that foreign warships would be 
treated on the basis of reciprocity accorded US warships abroad. (By 1 878, how- 
ever, the United States had declared an open-ports policy, reserving the right to 
ask foreign warships to leave if the law of nations or US treaties required depar- 
ture). Other States continued to claim exclusionary or regulatory rights, and 
by 1909 the United States, through the Navy Department General Board, could ex- 
cept certain ports from warship visits. Otherwise, no permission was required. i 

Besides customary claims of merchant ships' right to enter another State's ports 
to load or unload cargo, the United States and other nations have concluded bilat- 
eral agreements (for the United States, often in the form of peace, amity or friend- 
ship, commerce and navigation (FCN) treaties), usually guaranteeing reciprocal 
rights. The first for the United States came in 1778 with France, and the trend 
continued through the next two centuries. Warships were occasionally given ac- 
cess on the same terms as merchantmen. Often warships were not mentioned; 
sometimes they were given restricted access. Coastal trading, i.e., cabotage, was 
nearly always reserved for port State ships. Many agreements included most fa- 
vored nation (MFN) clauses, which grants all favors granted to others in the 
past or future, to other States. Other States have negotiated similar networks. 
In some situations, e.g., China, entry was restricted to designated Chinese ports, 
with nothing said about Chinese vessels trading in US ports. There is nothing 
in the record of the latter treaties to indicate that these agreements restricted entry 
for national security reasons; undoubtedly national policies of exclusion of for- 
eigners generally, and foreignors' ideas, were behind the Asian exclusion policies. 

438 
If one accepts the view that these "many hundreds of bilateral treaties" create a 

customary right, then by the early twentieth century a right of entry founded in 
custom existed, at least for merchantmen. The 1 982 LOS Convention would ex- 
clude MFN clause applicability to agreements with landlocked States for goods 
and people transiting countries to and from the sea. 

In 1898 an Institute of International Law resolution had provided that "As a 
general rule access to ports. . . is presumed to be open to foreign vessels." By 
1928 the Institute had changed its resolution to read, "as a general rule access to 
ports. . . is open to foreign vessels." Lowe, citing the rapporteur for the Institute, 
asserts the 1 928 formulation was de legeferenda. Nonetheless, if the proposition 
is accepted that the hundreds of bilateral agreements, and practice under them by 
1928, amounted to custom, which under traditional analysis when coupled with a 



Law of the Sea 273 



bilateral agreement between contending States overrides the secondary source of 
publicists, then today there is a basic right of peacetime entry. 

The 1923 Convention and Statute Concerning Regime of Maritime Ports pro- 
vided for free and equal access of all vessels, public and private, to parties' ports, 
subject to equality of usual port charges. The Convention does not apply "to 
warships or vessels performing police or administrative functions, or. . . exercising 
any kind of public authority, or. . . vessels which for the time being are exclusively 
employed for. . . Naval, Military or Air Forces of a State." The Convention also 
does not apply to fishing vessels, their catch, or cabotage. The Statute does not 
require admitting passengers or goods where health, security or municipal laws 
forbid such. States may suspend equality of treatment, but this is subject to 
World Court review. An "emergency affecting the safety of the State or the vital 
interests of the country may, in exceptional cases, and for as short a period as 
possible, involve a deviation from" equal treatment. Nor does the Convention 
prescribe belligerents' and neutrals' wartime duties, although the Convention 
"continue[s] in force in time of war so far as such rights and duties permit." 
These latter clauses are consistent with the LOS Convention and Territorial Sea 
Convention suspension and their "other rules" clauses. If they are not, the LOS 

• 454 i • 455 

Convention clause paramount or the later in time treaty construction rules 
would give primacy to the other rules clauses. The Ports Convention is also subject 
to the Charter and the right of self-defense. By 1999, 42 States were party, in- 
cluding Iraq since 1929; treaty succession principles may move the total up. 
The 1921 Barcelona Convention and Statute Concerning Freedom of Transit has 

458 

similar terms for vessel transit across the territory of its parties, which includes 
the territorial sea and inland waters. As of 1999 there were 33 parties, none of 

459 

which bordered the Persian Gulf; many are also Ports Convention parties. The 
Barcelona Convention is subject to the same considerations, e.g., the Charter, as 
the Ports Convention. 

The 1963 Mar del Plata Convention pledges parties' best efforts "to prevent un- 
necessary delays to vessels, passengers, crews, cargo and baggage in [administer- 
ing] laws relating to immigration, public health, customs and other provisions 
relative to arrivals and departures of vessels." The OAS Inter-American Port 
and Harbor Conference is charged with adopting standards and recommended 
practice for signatory States. If a State cannot comply, it must notify the OAS 
General Secretariat immediately. Although the Convention does not distin- 
guish between merchant ships and warships, its language appears to relate more to 
the former. No rules for suspension of territorial sea innocent passage, warships or 
armed conflict are stated, but under principles of treaty interpretation applicable 
to the Territorial Sea Convention and the LOS Convention, the latter's suspension 
provisions and other rules principles, as a matter of custom and treaty law, ap- 
ply. Likewise, the Charter applies in self-defense situations. Presently 12 



274 The Tanker War 



American States are party to this regional treaty, including the United States. 
To the extent its principles are consistent with the general LOS, the Convention 
reinforces them. 

The 1965 Convention on Facilitation of International Maritime Traffic repeats 

Af.0 

Mar del Plata pledges but excludes warships and pleasure yachts from cover- 
age. Allowing better treatment under national law or other treaties, the Conven- 
tion also permits "temporary measures. . . necessary to preserve public morality, 
order and security or to prevent the introduction or spread of diseases or pests af- 
fecting public health, animals or plants." Matters for which the Convention does 

470 

not provide are subject to national laws. No specific provisions declare when 
territorial sea innocent passage may be suspended, or the effect of armed conflict, 
but under principles of treaty interpretation applicable to the Territorial Sea Con- 
vention and the LOS Convention, these rules as treaty and customary law ap- 
ply. Likewise, the Charter applies in self-defense situations. Eighty States, 
including Iran and Iraq, are party to the Convention, Iraq's accession dating from 
1976. To the extent the Convention's principles are consistent with the general 
LOS, they reinforce them. 

The results of arbitral awards are consistent with LOS principles. The Saudi 
Arabia-ARAMCO arbitration (1958) confirmed that "according to a great princi- 
ple 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 re- 
quire." The Kronpnns Gustaf Adolf arbitration, considering Sweden-US bilat- 
eral agreements, noted the right of policing outbound wartime traffic stated in 
the treaties derogated from a general right of free navigation to and from ports, also 

477 

recited in the bilaterals. 

In 1945 Hyde said that there was a corresponding obligation upon each mari- 
time power not to deprive foreign vessels of commerce of access to all of its 

478 

ports. Similarly, the Institute of International Law returned to the subject in 
1957, declared for free access of commercial vessels, save in exceptional circum- 
stances "imposed by imperative reasons. . . . [I]t is consistent with general prac- 

479 

tice. . . to permit free access to ports and harbors by such vessels." Colombos 
thus aptly summarized competing claims for ports in 1967: 

(i) in time of peace, commercial ports must be left open to international traffic. The 
liberty of access to ports granted to foreign vessels implies their right to load and 
unload their cargoes; embark and disembark their passengers. . . . Freedom for 
foreign vessels to enter the ports of a State implies the right to load and unload goods; 
(ii) no port can ever be shut against a foreign ship seeking shelter from tempest or 
compelled to enter it in distress; (iii) purely military ports may be closed to all foreign 
warships or merchant vessels on the ground of justifiable precaution; (iv) entry of 
ships of war even into commercial ports may be subjected to certain restrictions both 
as regards the number of vessels allowed to enter and the length of their stay.480 



Law of the Sea 275 



481 

Whiteman took essentially the same position in 1 965 . The Restatement (Second), 
Foreign Relations said in 1965 that "In the case of vessels not in military service, the 
ports of a state are open to their visit without any prior notification, except where 

482 

the state has expressly provided otherwise." For military vessels, the Restate- 
ment said "notification of an intended visit is customary. It is not necessary that the 
coastal state expressly communicate. . . its consent to the visit [T]hat it does not 

483 

expressly prohibit the visit is sufficient consent." Although comments and re- 
porters' notes for these Restatement sections do not support these propositions, it is 
clear the Restatement drafters saw a general right of entry under international law 
for merchant ships and warships, subject to advance notice for the warship and a 
right of exclusion otherwise, presumably by international agreement or special no- 
tice from the littoral State, as in the case of quarantine for plague. O'Connell says 
there is no general port access right, arguing that if a State opens its ports, it must 
open them to all merchantmen, subject to usual rules pertaining to health, etc. A 
State may close its port or ports but must do so as to all ships. 

The Restatement (Third) takes no clear position on warship entry: "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 

485 

reasons, such as the security of the state or public health." The reporters' note 
does not mention warships, being content to say that "States may impose . . special 
restrictions on certain categories of ships[,]" citing Convention on Liability of Op- 
erators of Nuclear-Powered Ships and New Zealand's barring US nuclear-powered 
ships, i.e., US warships, from its ports. The likely Restatement position appears 
to be that merchantmen have an unfettered right to enter foreign ports, subject to 
principles of temporary closure for security and other reasons, and that there is a 
presumption that warships may also enter but subject to permission from the 
coastal State. (The Restatement (Third) is very clear, however, in saying that war- 

487 

ships have a right of innocent passage, as distinguished from right of entry into 
port without coastal State permission.) 

Recent United States bilateral agreements involving some former Soviet bloc 
States and the People's Republic of China (PRC) may evidence a trend toward less 
open access. Agreements with the PRC, Poland and the former USSR all provide 
for advance notice — 24 hours to four days — with respect to any merchant vessel 

488 

wishing to enter port. The agreements do not apply to warships or fishing ves- 

489 

sels. By clear implication, permission to enter any party's port requires advance 
notice and permission. 

The PRC and USSR Agreements designate ports for entry in each country, the 
PRC agreement stating that the list is subject to review. Notably absent from the 
lists are major ports related to defense installations — e.g., in the former USSR, 
Petropavlovsk and Vladivostok; in the United States for the former USSR, 
Charleston, South Carolina; all Rhode Island ports; Norfolk, Virginia area; San 



276 The Tanker War 



Diego, California; Pearl Harbor, Hawaii. However, some ports with nearby de- 
fense facilities are included: in the former USSR, Murmansk, Arkhangel'sk, 
Odessa, Leningrad (now St. Petersburg), Yalta, among 40 ports open; in the 
United States, Seattle and Newport, Rhode Island among ports open to the 
PRC 490 

These recent bilaterals reflect the present status of competing claims today for 
voluntary access to ports. There is a general right of access to ports for merchant 
ships to discharge or load cargo in time of peace. To the extent that the former 
USSR-US and PRC-US bilateral agreements list ports and thereby deny merchant 
vessels under their flags access to others without reason, the agreements could be 
said to violate general international law. However, because these are bilateral trea- 

491 

ties establishing special or local rules between States, affecting only them, there 
is no violation of international law. Special State interests — e.g., quarantine to pro- 
tect health, customs inspection to prevent smuggling, barring warships to ensure 
national security — may override the general claim of access for reasonable periods 
of time, and perhaps forever in the case of warships. For example, a quarantine ex- 
clusion could be imposed during the epidemic. Strict customs enforcement, dur- 
ing an actual or anticipated influx of illicit goods, might be required for years, e.g., 
in narcotics trafficking. Ships considered dangerous because of cargo (e.g., liquid 
natural gas, LNG) or propulsion system (e.g., nuclear power), may be regulated as 
to access. Ports might be barred to some or all foreign merchant or war vessel traffic 
because of national security concerns for greater or lesser periods of time, ranging 
from an indeterminate period of low-intensity conflict through defined periods of 
actual war to a few hours needed for critical fleet or other evolutions. Relief 
through access for vessels in distress or driven in by force majeure remains a univer- 
sal right with few, if any, restrictions. 

Thus voluntary access to ports by merchantmen stands as a right, with excep- 
tions depending on temporary circumstances such as incidence of infectious dis- 
ease necessitating quarantine precautions, or, in the situation of relative intensity 
of security interests ranging from low-level conflict (e.g., the now-concluded Cold 
War) to all-out protective exclusivity (e.g., for vital military installations or during 
a hot war) for military ships. However, the right of foreign-flag military vessels to a 
right of innocent passage, qualified as, e.g., in the case of submarines, as distin- 

493 

guished from port calls, remains a cardinal rule of international law. 

Thus far voluntary port entry has been considered; international law also pro- 
vides principles for entry in distress or due to force majeure. As Colombos stated in 
his 1967 summary of principles on ports entry, a general claim of right of entry 
for all vessels has been recognized for situations of entry in distress or due to force 
majeure. "If a ship is driven in by storm, carried in by mutineers, or seeks refuge for 

vital repairs or provisioning, international customary law declares that the local 

495 
state shall not take advantage of its necessity," Jessup wrote in 1927. 



Law of the Sea 277 



The customary claims developed through court decisions, at least as early as 
1 803 in England and 1 809 in the United States. French courts applied a simi- 

498 499 

lar principle. By 1820 the principle had been echoed in US legislation. ' The 
United States and other States began to include clauses in bilateral agreements, of- 
ten FCN treaties with MFN clauses, as a further assertion of the unqualified 
right of entry due to force majeure or distress from the eighteenth century onward. 
Early treaties often added enemy or piratical attacks as reasons to grant safe haven; 
agreements frequently pledged repair facilities availability or return of pirate- 
seized goods. These treaties usually were the same as those permitting free or 

502 

qualified entry into ports, or were in agreements touching upon such rights. 
The treaties did not discriminate against warships, and Schooner Exchange consid- 
ered immunity of a French privateer, the Balaou, driven into Philadelphia by bad 

503 

weather. Legal opinions within the British and US governments, instructions 
to their representatives and diplomatic correspondence of the era, further confirm 
that the bilaterals did, and do, articulate custom. Nineteenth century arbitra- 
tions took the same position. Current commentators also recognize the princi- 
pie. 506 

Ship and aircraft commanders have an obligation to assist those in danger of being 
lost at sea. This long recognized duty. . . permits assistance entry into the territorial 
sea or under certain circumstances aircraft without [coastal State permission]. . . to 
engage in bona fide efforts to render emergency assistance to those in danger or 
distress at sea. This right applies only when the location of the danger or distress is 
reasonably well known. It does not extend to entering the territorial sea or [its] 
airspace to conduct a search. Efforts to render assistance must be undertaken in good 
faith and not as a subterfuge.^ 7 

Prudence would suggest notifying the coastal State if possible, perhaps through 
national communications, and if the situation warrants and national notification 

508 

is not possible, notification by the entering vessel or aircraft. 

b. Conclusions. The Territorial Sea Convention and 1982 LOS Convention con- 
tributed little that is new to principles governing access to and from inland waters 
and ports, etc. The principal points of change or difference are that States can use 
their rights to temporarily suspend access to ports and inland waters through the 
LOS conventions' provisions for temporary suspension of innocent passage 
through the territorial sea, and there is a stated right of transit for landlocked 
States to and from the sea, subject to agreement with transit States and those 
State's rights to protect their "legitimate interests." The LOS conventions' pro- 
visions are subject to the LOAC, which includes the law of naval warfare, through 
the other rules clauses in particular situations, whether the LOS conventions ar- 
ticulate treaty or custom based norms. Other general treaty suspension doc- 
trines, e.g., impossibility of performance, fundamental change of circumstances or 



278 The Tanker War 



512 
armed conflict, might apply. UN Charter principles, e.g., the right of self-de- 

513 

fense, which trump treaty and perhaps customary norms, might apply. 

c. The Tanker War and Access to and from Inland Waters and Ports. Iraq became a 
de facto landlocked State early in the Tanker War, when Iran seized all of its coasts 
and effectively closed the Shatt al-Arab. However, no obligations under the 
LOS Convention arose because of closure by armed conflict; the LOS Conven- 
tion phrase "no sea-coast" means no physical sea-coast. Thus although States 
like Jordan, Kuwait, Saudi Arabia, Syria and Turkey negotiated transport of Iraqi 

goods, including Iraqi-originated oil to finance the war, through their territories 

517 
by road, air and pipeline means, there was no obligation under the law of the sea 

to conclude these agreements. To the extent that these materials contributed to the 

Iraqi war effort, and the LOS might be deemed to have applied, the LOAC gov- 

518 

erned through the conventions' other rules clauses. Any LOAC obligation was 
also subject to objection on grounds of treaty suspension: impossibility, funda- 

519 

mental change of circumstances and war. 

On the other hand, Iran's attempts to disrupt neutral traffic to and from neutral 

520 

Gulf ports violated general LOS principles of access to ports. Besides being a vi- 
olation of UN Charter, Article 2(4) insofar as the attacks violated or threatened 

neutrals' territorial integrity or political independence, the Security Council 

521 
passed a resolution condemning this action. The resolution was thus supportive 

of well-established law. 

6. Passage Through International Straits: The Strait of Hormuz 

522 
A major Tanker War issue was passage through international straits, e.g., the 

523 

Strait of Hormuz, a choke point vital for transporting oil from the Persian Gulf. 
This sub-Part examines straits passage under the law of the sea, with particular em- 
phasis on that waterway. 

Before the LOS Convention negotiations, the law of the sea was unsettled as to 
rights governing straits passage. The Territorial Sea Convention provides that 
"There shall be no suspension of the innocent passage of foreign ships through 
straits. . . used for international navigation between one part of the high seas and 
another part of the high seas or the territorial sea of a foreign state," thus tying 
most straits passage to concepts of territorial sea innocent passage and declared 

525 

nonsuspendable by Convention Article 1 6(4) in most cases. In 1 965 the Restate- 
ment (Second), Foreign Relations declared that innocent passage in straits between 
one high seas area and another high seas area "or the territorial sea of another state" 

526 

could not be suspended. 

At the same time other LOS issues were emerging. For example, territorial sea 

527 
claims asserted sovereignty beyond the traditional three-mile limit; questions 

arose as to the meaning of innocent passage under the Convention, particularly 



Law of the Sea 279 



528 

with respect to military aircraft and warships; States began claiming EEZs, for 

529 

which the 1958 Conventions stated no general rules; and States began asserting 
special status for archipelagic waters. Broadened territorial sea claims by Iran and 
the UAE, plus Iranian claims to Abu Musa and the Tunis and Iranian and Omani 

530 

baseline assertions, implicated the Strait of Hormuz during the Tanker War. 
The law of the sea as stated in large part in the 1982 Convention responds to 

these trends, recognizing six types of international straits and restoring the cus- 

531 
tomary law of international straits: 

(1) straits used for international navigation and not completely overlapped 
by the territorial sea; 

(2) straits used for international navigation connecting the high seas or an 
EEZ with the territorial sea of another country; 

(3) straits used for international navigation between one part of the high seas 
or an EEZ and another part of the high seas or an EEZ; 

(4) straits used for international navigation and connecting one part of the 
high seas or an EEZ with another part of the high seas or an EEZ, where 
the strait is formed by an island of the State bordering the strait and the 
mainland of that State; 

(5) straits used for international navigation and governed by treaties; or 

(6) straits used for international navigation in archipelagic waters. 

The Strait of Hormuz, connecting the Gulf with the Indian Ocean, today is in cate- 

532 

gory (3). To place the law governing the Strait of Hormuz in perspective, it may 
be useful to examine briefly the principles governing other kinds of straits, i.e., 
Cases (l)-(2),(4)-(6). 

a. Straits Connecting High Seas or EEZ Areas, 

Case (1). If a strait connecting a high seas area or EEZ with another high seas 
area or EEZ has a corridor of high seas completely through it, i.e., there is a band of 
navigable water over which no coastal State has claimed a territorial sea through- 
out the strait, that band of water is subject to the high seas LOS regime. High seas 
freedoms of overflight, navigation, etc., subject to high seas users' obligations to 

533 

observe due regard for others' exercise of freedom of the seas, apply. Nearly 50 of 
these straits existed in 1989 because littoral countries had not claimed as much as 

they might for their territorial seas under the LOS Convention, i.e., 12 miles or 

535 
24 miles at a strait's narrowest point if both coastal States claimed 12 miles. 

536 

Only 25 existed in 1997. The 1989 list included the Bahrain-Qatar Passage, and 

537 

perhaps waters around Abu Musa Island in the Gulf. (Iran occupied Abu Musa 

no 

before the beginning of the Tanker War, and whether the island is considered 
part of the UAE or Iran, there are enough waters around it and the Greater and 
Lesser Tunbs to support claims of high seas passage around them, between either 



280 The Tanker War 



539 
Iran or the UAE.) There are 60 straits where the narrowest passage is greater 

than 24 miles, none of which are in the Gulf, except for the possibility of waters 

around Abu Musa. Case (1) might be resolved differently by a strict reading of 

the Territorial Sea Convention and its nonsuspendable innocent passage regime 

for all straits except those covered by prior treaty, with attendant problems of 

defining innocent passage under the Convention. The 1958 Conventions also 

do not address EEZ issues. The LOS Convention resolves the Case (1) issue; if a 

high seas route with similar convenience with respect to navigational and 

hydrographical characteristics exists in the strait, straits passage special rules do 

not apply. General rules for, e.g., freedom of navigation or overflight, apply. If 

the high seas or EEZ corridor is not of similar convenience in navigational or hy- 

drological characteristics, transit passage principles apply. Before expanded 

territorial sea claims became admissible, the Strait of Hormuz would have fit 

within Case (1); its narrowest breadth is about 22 miles. 

Case (2). Where a strait connects high seas or EEZ waters with a coastal State's 

territorial waters, the territorial sea innocent passage regime applies, except 

that the right of innocent passage is not suspendable. The Bahrain-Saudi Ara- 

548 

bia Passage is among these "dead-end" straits. Here the LOS Convention coin- 
cides with the Territorial Sea Convention, except for the new LOS Convention 

549 

innocent passage definition and the 1958 Conventions' omission of EEZ rules. 
The innocent passage rules apply to straits connecting the high seas or an EEZ 
with an historic bay. 

Case (4). Where a strait connects a part of the high seas or an EEZ and another 
part of the high seas where an island of a coastal State and the coastal State's main- 
land forms the strait, the LOS Convention provides that territorial sea passage, i.e. 
innocent passage, applies, if a route to the high seas or EEZ seaward of the island is 
of equal convenience with regard to navigational and hydrographic characteris- 
tics. As in Case 2 dead-end straits, passage through these straits cannot be sus- 

552 
pended. The 1958 Conventions give no clear response to this kind of claim; 

presumably the Territorial Sea Convention's nonsuspendable innocent passage 

regime applies. There are no such straits in the Gulf. 

Case (5). The LOS Convention exempts longstanding treaty regimes govern- 
ing straits passage from treaty regimes; here the analysis is nearly the same under 
the Territorial Sea Convention. It subjects its rules to all prior treaties; the LOS 
Convention permits derogation only if a treaty is longstanding. Another kind of 
treaty that might govern straits passage would be a more recent treaty that is com- 
patible with the LOS Convention. No straits treaties apply to the Gulf. 

Case (6). The LOS Convention gives special rules for straits through archi- 
pelagic waters, which are substantially the same as innocent passage through inter- 
national straits, except that archipelagic innocent passage is suspendable, while 

ceo 

straits innocent passage is nonsuspendable. This situation might occur if a 



Law of the Sea 281 



strait under prior law becomes encapsulated in an LOS Convention-permitted ar- 
chipelago. There is no clear answer under the 1958 Conventions, but the Territo- 
rial Sea Convention general rule of nonsuspendable innocent passage in the 
absence of treaties, of which there are none, may apply. "' There are no claimed ar- 
chipelagos in the Gulf, and no island groups eligible for claims. 

Conclusions as to Cases (l)-(2), (4)-(6). The first and most important conclu- 
sion from the foregoing is that the Territorial Sea Convention, despite its omis- 
sions and ambiguities, when combined with the other 1958 Conventions' 
principles, and the LOS Convention, state a general policy of relative freedom of 
access through most straits, a high seas and EEZ regime in Case (1), straits through 
which there is high seas passage; Cases (2) and (4), nonsuspendable innocent pas- 
sage for dead-end straits and straits between an island and the mainland where 
there is an alternate high seas route around the island; Case (6), transit passage 
through archipelagic straits. For Case (5), straits governed by treaty regimes, the 
result is virtually the same under the 1958 Conventions and the LOS Convention; 
the treaty applies. The second is that the LOS Convention clarifies the law of 
straits while recognizing LOS developments, e.g., the EEZ. 

Only Case (1), concerning the Bahrain-Qatar Passage and waters around Abu 
Musa; Case (2), concerning the Bahrain-Saudi Arabia Passage; and Case (3), the 
Strait of Hormuz; apply to the Gulf. There is no record of claims regarding restrict- 
ing passage, etc., around Abu Musa or through the Passages. The Tanker War in- 
volved navigation and other passage through the Strait of Hormuz, and therefore 
the question of transit passage under the law of the sea as stated in the LOS 
Convention. 

b. Passage Through the Strait of Hormuz. As a technical point of law, it is possible 
to argue that two regimes governed passage through the Strait of Hormuz during 
the 1980-88 Tanker War. 

(i) High Seas Passage Through Hormuz? The Strait is about 22 miles wide at its 
narrowest points. If a view is taken that the maximum territorial sea claim admissi- 
ble under the LOS was three miles, the position of the United States until 1983, 
when the conflict had been raging for about three years, navigation, overflight, 
warship activity, etc., within the Strait was subject to LOS high seas principles 
in the middle 1 6 miles of the Strait and territorial sea principles within the terri- 
torial seas of Iran, Oman and the UAE. Under this analysis, the Strait presented a 
Case ( 1 ) scenario. There is no record of claims to this effect. Analysis now exam- 
ines passage under Case (3), passage from a high seas area or EEZ through a strait to 
another high seas area or EEZ on the other end of a strait. 



282 The Tanker War 



(ii) Case (3): Strait of Hormuz Transit Passage and the Tanker War. If the Ter- 
ritorial Sea Convention nonsuspendable innocent passage rule for straits used in 
international navigation is combined with limitations on territorial sea inno- 
cent passage in the Convention, it is clear that a coastal State may not temporarily 
suspend passage in a strait for security reasons as it might for territorial sea inno- 
cent passage. Passage in either case does not mean entry into internal waters. 

It does mean stopping and anchoring incident to ordinary navigation or if ren- 

569 
dered necessary by force majeure or distress. 

The general definition of innocent passage in the Territorial Sea Convention, 

"Passage is innocent so long as it is not prejudicial to the good order or security of 

570 

the coastal State,"" leaves open a question of whether innocent passage is totally 

571 r 

equated to straits passage under the Convention, and therefore whether transit- 
ing fishermen engaged in fishing that is not contrary to coastal State regulations 

572 
are in innocent passage. ' The Convention also leaves open issues of whether 

flight (particularly by military aircraft) through the strait, forbidden without prior 

573 

permission under the general territorial sea innocent passage regime, or whether 
transiting submarines must navigate on the surface and show their ensign unless 
prior permission has been granted. There were also questions of whether weap- 
ons practice (no matter how innocuous, such as topside loading machine drills); 
launching, landing or taking aboard aircraft (including, e.g., aircraft involved in 
mail delivery or medical evacuation cases); launching, landing or taking aboard 

any military device; or electronic interference with coastal State facilities (e.g., 

575 
while tuning radars) could be conducted. There can be issues related to jurisdic- 
tion over merchantmen, rules applying to State-owned commercial shipping, and 
whether a coastal State can ask a transiting warship to leave the strait of the coastal 
State for failure to comply with its otherwise legitimate territorial sea regula- 

576 

tions. Because the Territorial Sea Convention is subject to the law of armed con- 

577 578 

flict in situations where the LOAC applies, and to the right of self-defense, 
an anomolous result is that naval forces may transit a strait under those circum- 
stances without regard to Convention rules. A further possible result is that strict 
insistence on the Convention by a coastal State or third States could result in more 
assertions of unnecessary claims under these principles, with attendant counter- 

579 r 580 

claims of violations of the Charter or the law of naval warfare. These are 

581 
hardly the kinds of results the Convention drafters contemplated. 

For Case 3 straits, those used for international navigation and connecting a part 

of the high seas or an EEZ with another part of the high seas or an EEZ and which 

582 

include most strategically important straits including Hormuz, the LOS Con- 
vention provides that all ships and aircraft enjoy a right of unimpeded transit 

583 

passage. Transit passage means exercise of the freedoms of navigation and over- 
flight solely for continuous and expeditious transit of the strait between one part of 
the high seas or EEZ and another part of the high seas or EEZ. Continuous and 



Law of the Sea 283 



expeditious transit includes strait passage to enter, leave or return from a country 

584 

bordering the strait, subject to that country's conditions for entry. Transit pas- 
sage exists throughout the strait, including its approaches, and not just a territorial 

585 
sea overlapped area. These approach areas are high seas or EEZ areas, for which 

586 

high seas freedoms apply, and are therefore not subject to a territorial sea inno- 
cent passage or straits transit passage regime. Activity not an exercise of transit 

587 

passage is subject to other LOS Convention provisions, including the law of 

588 
armed conflict through the Convention's other rules clauses. The LOS Conven- 

589 

tion transit passage rules are also subject to the Charter. During early LOS Con- 
vention negotiations Saudi Arabia advocated the rules eventually adopted; Iran 

590 

supported regulated passage and a special regime for the Gulf. 

While in transit passage, ships (including warships) and aircraft (including 
military aircraft) must: proceed without delay through or over the strait; refrain 
from activities other than those incident to their normal modes of continuous and 
expeditious transit unless they experience/ore^ majeure or distress; refrain from a 
threat or use of force against the sovereignty, territorial integrity or political inde- 
pendence of straits-bordering States in violation of the Charter; and otherwise 

591 
comply with LOS Convention transit passage rules. Ships in transit passage 

must also comply with generally accepted SOLAS standards and international 

regulations, procedures and practices for preventing, reducing and controlling 

592 

pollution from ships. Aircraft in transit passage must observe ICAO-estab- 
lished Rules of the Air as applicable to civil aircraft; State aircraft, e.g., military air- 
craft, "will normally comply" with these and will always operate with due regard 
for aviation safety. They must monitor air control and distress frequencies as- 
signed by the competent internationally designated air traffic control author- 

593 
ity. There is, of course, unquestionably a right of warship transit through and 

military aircraft overflight of these straits, unlike the rule against territorial sea 

594 

overflight where warships, like all vessels have innocent passage rights. Ocean- 

ographic research or surveys cannot be conducted without bordering States' prior 

595 
authorization. In terms of normal mode of transit under the LOS Conven- 
tion, this means submarines and other undersea vehicles may transit sub- 

597 
merged; for today's submersibles, that is their normal operational mode. Sur- 
face vessels may steam in formation, zig-zag, or deploy aircraft incident to normal 

598 

modes of operation; they may use, e.g., radar for navigation but not for attack. 
They must not threaten bordering States' sovereignty, territorial integrity or po- 

i • • 599 c- 

htical independence. There is no requirement of prior notification of intent to 
exercise straits transit passage by aircraft or warships. 

Bordering States may designate sea lanes and prescribe traffic separation 
schemes for straits if necessary to promote safe navigation and must publicize 
these after approval by a competent international organization, i.e., IMO. Vessels 
in transit passage must respect these lanes and schemes. Hormuz was among 



284 The Tanker War 



major straits subject to a traffic separation scheme during the Tanker War. 
States bordering straits may prescribe rules relating to transit passage for safety of 
navigation and regulating traffic; preventing, reducing and controlling pollution; 
prevention of fishing and stowing fishing gear; loading or unloading goods, cur- 
rency or persons in violation of a coastal State's customs, fiscal, immigration or 
health laws, and must publicize them. If a strait is bordered by two or more 
countries, those countries may cooperate through agreements to establish naviga- 
tional and pollution prevention, reduction or control devices. However, these 
rules may not discriminate in form or fact among foreign ships or in application 
have the practical effect of denying, hampering or impairing the right of transit 
passage. This differs from territorial sea innnocent passage, which can be sus- 
pended temporarily; rules for straits cannot stop transit passage, even tempo- 
rarily. This principle applies to dangers to navigation that a coastal State must 
publicize. ' Vessels in transit passage must comply with these rules, and the 
country of a State aircraft registered under its flag, or of a vessel registered under its 
flag, bears international responsibility for loss or damage to coastal States from vi- 

f\C\l 

olating these rules. 

c. Conclusions. During and before the Tanker War there were threats from Iran to 
close the Strait. The United States and other countries rightly resisted these 
claims, insisting on the right of freedom of transit through the Strait for all ships or 

/TAO 

aircraft entering or leaving the Gulf. If the Strait had a strip of high seas through 
it (Case 1), under no circumstances could a coastal State lawfully close it. If the 
Strait is considered under the LOS Convention straits transit passage regime (Case 
3), no coastal State could close it either. 

Iran delivered a diplomatic note concerning transit of the Strait in 1987. The 
United States asserted that the right of transit passage was a customary norm, a 
correct interpretation. There were no other coastal State claims to limit warship 
or military aircraft transit; under the LOS Convention regime, States bordering 
straits may not limit passage of these platforms, which were entitled to transit the 
Strait in their normal mode, subject to LOS Convention rules on transit passage, 
which might include submarines transiting submerged and formation steaming 
by surface combatants. Although the record is sparse as to exactly where warships 
began escorting or convoying tankers, since this was also a normal mode of opera- 
tion and a proper defensive measure, convoying, escorting or accompanying 
through the Strait would have been permissible. Iran's traffic management 
scheme for the upper Gulf required merchant ship notification before coming 
close to its ports. The LOS did not require prior notification of straits passage 
by any merchantman, and certainly not by any warship or State aircraft; there is 
no indication in the record that this was required, however. Strait of Hormuz 



Law of the Sea 285 



traffic separation schemes did not figure in the war, except insofar as they may 
have channeled shipping, making it easier to attack ships. 

The belligerents attacked neutral-flag vessels in or near the Strait, including its 
traffic separation schemes. It was permissible for warships to defend them- 
selves, and to come to the aid of stricken merchantmen, under these circum- 
stances. Thus it was lawful for the Vincennes and other US warships to defend 
themselves from Iranian speedboat and air attacks. It would also have been 
proper for neutral navies, including those of Oman and the UAE, to remove mines 
and conduct other mine countermeasures in the Strait, so long as they did not im- 
pede straits transit passage and, in the case of navies of States bordering the Strait, 
giving adequate notice of their operations to remove these menaces to neutral navi- 
gation. 619 

Part C. Nationality of Ships, Cargo and Other Interests 

Ownership, financing and use of merchant ships has been a complex business 
for centuries. Ownership of cargo aboard vessels in bulk (e.g., oil, cement, 

{.JO 

grain), break-bulk (e.g., bagged goods, crates), perhaps stowed on deck (e.g. 
earth-moving equipment, railway locomotives), or containerized, and sub- 
ject to freight charges or other liens, has become a complex business. This Part be- 
gins by examining transnational aspects of ship and cargo ownership and issues 
arising during the Tanker War before proceeding to development of trends in 
claims on the public international law plane. 

Warships have always been under State registry, but even here lines can be less 
than clear. Privateering, where States commission private vessels to attack enemy 
shipping, was a practice that ended only in the mid-nineteenth century. In- 
creasingly today, governments own or charter vessels that are merchant vessels in 
appearance and use. Some, although seeming to be merchant ships in function, 
serve warships as naval auxiliaries, e.g., tankers, cargo carriers, and refrigerator 

(TIC 

ships. Still others serve military purposes, such as troopships, but may be con- 
trolled by a country's institutions other than its navy. Other government vessels 
with a law enforcement mission may be operated by government departments 
other than its navy, e.g., the US Coast Guard, or local governments may operate 
craft like police or fire boats. In some cases these functions may be combined with 
naval forces. Dividing lines can be far from bright, especially for States with mini- 
mal coasts or maritime forces. This Part ends by examining these principles, with 
analysis of the Tanker War "reflagging" debate. 

1. Defining "Ships" 

There is no general definition of "ship" in the law of the sea, even in the 1958 
conventions and the LOS Convention. The 1962 amendments to the 1954 Oil Pol- 
lution Convention say that a ship is "any sea-going vessel of any type whatsoever, 



286 The Tanker War 



including floating craft, whether self-propelled or towed by another vessel, mak- 
ing a sea voyage," and the MARPOL 73/78 definition is similar: "a vessel of any 
type whatsoever operating in the marine environment. . . including] hydrofoil 
boats, air-cushion vehicles[ACVs], submersibles, floating craft and fixed or float- 
ing platforms." The 1986 Ship Registration Convention defines a ship as "any 
self-propelled sea-going vessel used in international seaborne trade for the trans- 
port of goods, passengers, or both " Here the definition might be said to ex- 

no 

elude warships, since they do not carry passengers or goods as a general rule. 
General as they are, the 1962 and the MARPOL 73/78 definitions are more inclu- 

629 

sive and have been accepted by most seafaring States, although MARPOL's 
reference to fixed platforms might raise some seafarers' eyebrows. National legisla- 
tion occasionally supplies varying definitions, most of which are in accordance 

nn 

with the Convention statement. 

631 

Definition of a merchant ship under the law of the sea has fared similarly; 
there is no agreed definition except by way of exclusion: merchant ships are any 
privately or publicly owned vessels that are not warships or are otherwise in gov- 
ernment public service, e.g., police or fire boats and therefore entitled to sovereign 

63? 

immunity, engaged in commercial activity. The law of naval warfare has much 
to say about merchant ships and cargoes, but those principles apply in appropriate 
situations through the LOS conventions' other rules clauses and will be ana- 
lyzed for the Tanker War in Chapter V. 

2. Ownership in Merchant Ships and Cargoes; Crews; Insurance 

Individuals have owned ships since the earliest times; even today ownership of 
pleasure boats, some of which may be as large as small commercial vessels, is likely 
to be in an individual. Since one person might not be able to advance enough capi- 
tal to buy and outfit a ship, a practice of joint venture, i.e., ownership of shares in 

63S 

ships, perhaps for the voyage or longer, developed. Some of British North 

636 

America's colonial charters reflect this kind of business relationship. Begin- 
ning in the nineteenth century, concurrent with evolving business forms on land, 

637 

the corporation came to be the dominant modality for vessel ownership. Even 
command economies have used the corporate form, i.e., State-owned trading com- 

638 

panies. " By the opposite token, free enterprise-based nations have owned and op- 
erated ships, usually through corporations. Countries with government-owed 
shipping fleets included many Gulf States during the Tanker War: Iran, Iraq, Ku- 
wait, Qatar, Saudi Arabia and the UAE among them. Vessels may travel inde- 
pendently as tramp steamers, picking up cargo at one port, discharging it at 
destination, and picking up another cargo for a third port, etc., or along regular 
routes as liners. Today most US shipping operates as liners, but many tramp 
steamers still transit the oceans. Shipping corporations may cluster in one of 
over 350 liner conferences to set carriage rates for certain routes and manage 



Law of the Sea 287 



sailings efficiently. This can result in noncompetitive pricing and competition be- 
tween conference and non-conference shipping companies, however. Associations 
of shipowners also may influence decisions, particularly those in the political 
arena. Corporations may own many ships; they may establish each vessel in a 
subsidiary corporation for tax and liability minimization. 

A vessel owner may "rent" a ship to others through a "charter party" or char- 
ter. An owner can charter only part of a ship, but usually an owner lets the 
whole vessel by one of three methods: demise or bareboat charter, time charter, or 
voyage charter. In a demise or bareboat charter, "the charterer takes over the ship, 
lock, stock and barrel, and mans her with his own people." In a time charter, the 
owner's people continue to work the ship, and the owner retains possession; the 
charterer buys the vessel's carrying capacity for a fixed time to go anywhere. 
The other non-demise arrangement, the voyage charter, is a contract for hire of the 
ship for one or more voyages. It is probably the most common form. Subcharter- 
ing to another party, for part or all of the ship or the time, may occur unless prohib- 
ited by a charter party. Brokers in major maritime centers, e.g., London or New 
York, carry on "fixture" of a ship under a charter far from the ship, its owner or the 
charterer. Today an owner may telex or radio a vessel to give directions on its use 
after a charter has been fixed. 

Today charters are standardized documents. Usually a nondemise charter in- 
cludes a "safe ports" clause, allowing a master (an employee of the owner) the op- 
tion of discharging the charterer's cargo at a port that is safe to enter. For 
example, if a charterer directs a master to proceed to a port with a bar across the in- 
let, the master can refuse and go to another port; the owner can claim damages. 
"Safe port" also means political dangers to the vessel's safety; development of an 
armed conflict situation can affect these private contracts. A safe port clause does 
not apply after a vessel's arrival. However, if a port becomes unsafe after a charterer 
nominates it, the charterer must nominate another if that port is reasonable under 
the circumstances. Reasonable deviation is permitted in proceeding to a nomi- 
nated port, and doctrines of frustration of performance or commercial im- 
practability, perhaps caused by armed conflict or requisition clauses in the charter, 
may end a charter. Governments may charter ships instead of requisitioning 
them during wartime. If government cargo is stowed on a vessel that carries pri- 
vately held goods as well, there is the possibility of multiple ownership interests, 
the vessel owner, the charterer, the subcharterers, and consignors and consignees 
of the goods. 

The holder of a mortgage or other financing device on a ship is another im- 
portant ownership interest. Although nearly all maritime States have national leg- 
islation governing ship mortgages, many (but not the United States) are parties 
to multilateral conventions establishing rules for ownership of mortgages by per- 
sons that are nationals of States other than that of the registry of the ship. Other 



288 The Tanker War 



provisions of national law may condition transfer of mortgage interests from a na- 
tional of a registry State on mortgage registry State approval or accord lower lien 
priorities for a foreign-owned ship mortgage, which may be given parity or near 
parity with mortgages held by nationals of the ship of registry. A ship, regis- 
tered in State A may be subject to a mortgage in State B whose trustee is a State C 
national, with ownership in a State D corporation, whose shareholders may be na- 
tionals of States E, F, G, etc. When the possibility of fleet mortgages — a security 
interest in several vessels of different flags with a common owner — is contem- 
plated, the issue becomes even more complex. When States guarantee or insure 
ship financing, as the United States may under federal legislation, yet another 
participant — this time a sovereign nation — may have potential interests. Under 
these kinds of financing arrangements, a vessel owner may appear to be in some re- 
spects a lessee (charterer in maritime terminology) and the financing institution 
may appear to be the owner of the vessel. Whatever the issues as to who are 
proper owners, charterers or others who can limit liability under treaties or na- 
tional law, the variety of financing arrangements add to the complexity of deter- 
mining ownership interests under the Intervention Conventions and perhaps 
issues of nationality of the ship for law of the sea issues. 

Transnational arrangements for carriage of goods at sea are equally complex. 
While ordinarily a military commander or the commander's lawyer will not be 
concerned with the nuances of these transactions, except incident to visit and 
search, the following illustrates the complexity of trade by sea and the possible 
multitude of private parties, and therefore the countries potentially involved. 

Seller and buyer of goods sign a contract of sale. If the transaction is F.O.B. 
(Free on Board), it may be either a shipment contract or a destination contract. If 
the former, perhaps stated F.A.S. (Free Along Side a named vessel), a seller places 
the cargo with a carrier at a designated point or ship; the buyer bears the risk dur- 
ing transit. (Doubtless a buyer will buy insurance.) If it is an F.O.B. destination 
contract, the seller bears the risk of transit and tenders delivery at port of arrival. 
The alternative, C.I.F. (Cost, Insurance, Freight), obligates a seller to buy insur- 
ance and pay freight to the carrier; these are added to costs for the buyer's price at 
destination. 

The buyer may obtain a letter of credit from a bank, by which the bank promises 
to honor the seller's draft if the buyer submits shipping documents for the goods, 
i.e., the shipment's negotiable bill of lading, invoice and insurance contract. The 
letter is forwarded through the seller's bank for payment on submission of the doc- 

cnc\ 

uments. A buyer may have credit arrangements to finance the letter of credit or 
to finance sale of the goods. Although these transactions are technically independ- 
ent of the sales contract or the contract of carriage, they are linked to the sales con- 
tract, and participants in letter of credit transactions — usually banks — also have 
interests in safe, timely and orderly carriage of cargo on the seas. Today 



Law of the Sea 289 



multimodal transportation using containers is very common, the result being that 
many land-based companies under different ownerships (and therefore different 
national interests) may be involved if goods do not arrive or arrive damaged, 
perhaps because of military action at sea. 

Whether cargo is sent F.O.B. (perhaps F.A.S. for ocean transit), F.O.B. destina- 
tion, or C.I.F., risk of loss during shipment must fall on a shipper or a carrier. As 

f\T) 

noted earlier in the context of direction of shipping, carriage of goods by sea in- 
volves many ownership interests regulated by the customary, treaty and national 
law of admiralty. Most such arrangements are covered by the COGSA Convention 
as supplemented by more recent treaties. These standards may be incorporated 
in a private contract, e.g., a charter party. 

Clauses in contracts of carriage or affreightment may affect ownership interests 
in freight charges for transportation and hence ownership interests in transport- 
ing the goods. For situations related to armed conflict, these include fire, perils of 
the sea, acts of war, acts of public enemies, arrest or restraint of princes {i.e., re- 
straints by governments), seizure under legal process, riots or civil commotions, 
saving life or property at sea, and deviation. Although armed conflict may trig- 
ger invocation of the war exception, the peripheral impact of armed conflict may 
cause ships to deviate from planned courses, or they may be tied up in port due to 
departure restrictions or domestic unrest resulting from armed conflict, etc. Thus, 
armed conflict can result in private parties' raising claims against other private 

parties, all of which may hail from different countries, and governments in these 

fnf\ 
countries may hear from affected parties, who may urge measures affecting the 

conflict, ranging from entry into the conflict to less coercive measures. The result 

is that cargo interests or others, faced with a carrier claim of exemption under 

COGSA, may look elsewhere, perhaps to their insurers, perhaps to the country that 

(Jin fCTZ. 

allegedly caused them harm, but possibly to their governments for espousal, 
if the ultimate cause of their loss is cognizable and compensable under interna- 
tional law. This was the basis of claims for the Stark and Vincennes attacks, al- 
though injury and death claims were primarily involved. 

Besides these claims related to cargo carriage, a ship owner is also concerned 
with claims related to illness, injury or death of mariners aboard the ship. At the 
least, an owner must pay maintenance, cure and wages; all States recognize the 
principle that injured or sick merchant seamen are entitled to food and lodging, 
medical services and unearned salary for the remainder of the voyage, plus burial 
expense, if death, injury or illness occurs while enrolled as a seaman on a ship. 
States may accord other relief for injured seamen or mariners who die at sea. In 
the United States and many industrialized countries, maritime workers (mariners, 
shipyard employees, and stevedores who work the docks) are heavily unionized; 
the unions themselves can be potent forces for claims involving members, as some 
countries discovered during the Tanker War. 



290 The Tanker War 



Passengers and others involved in maritime-related business, e.g., oil platform 
workers, may claim for injuries or death under maritime law, perhaps augmented 

/TOT 

by national legislation. The same can happen when there is loss or damage to 
civil aircraft. While these claimants might be content with claims against other 
private parties who allegedly harm them, there is a possibility of claims against an 
allegedly offending State or perhaps requests for espousal by their govern- 
ments. 684 

Overarching these primary claims is a potential for insurance coverage and 
subrogation to an insured's claims, i.e., where an insurance company steps in an 
insured party's shoes, a common procedure for property damage claims under US 
law. Participants in the marine insurance field may be of entirely different nation- 
alities than the insured ship owner, charterer or cargo interests. UK underwriters, 
usually operating from Lloyd's syndicates, have dominated the field, but 
other nationals or their companies may be involved. ' Reinsurance, where a rein- 
surer agrees to indemnify another insurance company against risks assumed by it 

689 

on insurance in favor of a third party, (e.g., vessel owner, charterer or cargo in- 
terests), may introduce more potential claimants (a reinsurer as ultimate subrogee) 
for a maritime law claim. Today three kinds of marine insurance are written. Hull 
insurance covers a vessel or a fleet, ships' machinery and certain collision liabili- 
ties plus general average and salvage charges. Cargo insurance protects a ship- 

691 

per. Protection and indemnity (P & I) insurance covers nearly everything not 
under a hull policy, including personal injury, illness and death of those aboard 
ship; other collision liability; pollution liability; omnibus coverage for new risks 
not within the express provisions in use. P & I is underwritten through "clubs" of 
insurers, most of which are in the United Kingdom. UK P & I clubs have insured 

692 

about 65 percent of the world's shipping. Although ownership interests can in- 

693 

sure nearly everything, and can buy an "all risks" policy, war risk insurance is 
written separately because of the "free of capture and seizure" (F C & S) clause in 
typical policies. Thus insureds must buy a separate policy and pay an additional 
premium for war risk. 

Obtaining insurance or writing it are voluntary acts. Owner interests can elect 
to operate ships uninsured because of high premium costs, but they are foolish to 
do so because of the high risk of personal liability beyond the value of the vessel, as- 
suming that the ship or cargo survives the mishap for imposition of maritime liens, 
because of the possibility of failure of limitation of liability. Insurers can elect to 
charge relatively high premiums when the risks are high, e.g., projected transit of a 
dangerous zone of the ocean, or choose not to write policies at all for certain 
risks, e.g., war. Today all oceangoing vessels carry basic war risk insurance. The re- 
sult has been that States have war risk insurance legislation for coverage "when- 
ever it appears. . . that such insurance adequate for the needs of the water-borne 
commerce of the United States cannot be obtained on reasonable terms and 



Law of the Sea 291 



conditions from companies . . .," as the US legislation has had it. Recognizing 

697 

growing use of flags of convenience, legislation may permit coverage for these 
vessels besides nationally registered ships; cargoes on both national-flag and flag 

698 

of convenience ships; and personal injury, death or detention of crews. Other 

699 

maritime risks may be covered as well. The government may provide reinsur- 
ance coverage to spread commercial carrier risk. Private coverage, if available, 

701 

may continue. The result is that governments may become subrogated to claims 
caused by war situations besides their building and operating, chartering or requi- 

702 

sitioning vessels during crisis. 

3. Nationality of Merchant Vessels 

The foregoing sub-Part has analyzed the plethora of government and private in- 
terests that may claim in transactions involving merchant ships. This sub-Part an- 
alyzes trends in claims to ships' nationality in international law. Jurisdiction over 

703 
such ships in, e.g., territorial waters, has been mentioned separately. 

Bilateral agreements, often in the form of FCN treaties, of the late eighteenth 
century, and continuing through the nineteenth into this century, provided for 
mutual recognition of each State's ships as national vessels if the master produced 
a passport, sea letter or other sufficient document issued by competent national au- 
thority. Although early treaties stated this requirement as a wartime measure, 
perhaps requiring periodic renewal of papers, later agreements were more general 

705 

and not so limited. When bilateral treaties began to include MFN clauses to 
grant each party the highest favor any other treaty partner of either held, the prac- 

706 

tice and necessity of including sea letter clauses declined. Occasional treaties re- 

707 

cited requirements for these documents. In 1906 Moore said these papers 
should be included: passport, sea letters, charts, bill of health, bill of sale or owner- 

708 

ship certificate, manifest, charter party, bills of lading, and invoices. A few 
agreements also based vessels' nationality on the crew's composition and the mas- 
ter's nationality, perhaps with a statement that national recognition was suffi- 

709 
cient. US Prohibition Era bilateral antismuggling treaties also infer a need for 

710 

ship's papers. To the extent these treaties had common or similar terms, it can 
be argued that they point to establishing a customary norm for determining the na- 

71 1 

tionality of a vessel. Treaty succession principles applied their terms to other 

712 
countries in some cases. 

Early admiralty cases upheld the presumptive validity of bills of sale or similar 

documentation for vessels and therefore the nationality of the ship. By the 

71 5 

mid-nineteenth century these papers were required to be aboard neutral ships. 
The flag, Moore wrote in 1906, was only "prima facie evidence, on the high seas, 

71 ft 

that the nationality of the ship corresponds to that of the flag." 

In 1873 a Spanish man-of-war overtook 5.5. Virginius on the high seas; Virginius 

717 

was accused of carrying arms and insurgents to Cuba, then a Spanish possession. 



292 The Tanker War 



Virginius had been registered fraudulently as a US vessel, as later investigation 
showed; her real owners were Cubans resident in New York. The United States 

710 

protested Virginius' seizure; Spain admitted an international law violation for 
having taken the ship on the high seas while flying a US ensign and carrying US 
registry papers. 

In 1896 the International Law Institute adopted a recommendation that na- 

771 

tionalities of captain and crew should not be criteria of a ship's nationality. The 
1905 Montijo arbitration rejected the argument that a ship could not be considered 
a US vessel because only a third of her crew was American, a violation of US law. 

72? 

That was a domestic matter for the United States, the arbitrator ruled. The Per- 
manent Court of Arbitration in the 1 905 Muscat Dhows Case held a State was free to 

773 

decide which ships could fly its flag and to prescribe rules for the privilege. 
"What that case reveals is that there is no unique connection between the national 
identity of a ship for jurisdiction purposes and the flying of a flag." Even though 
the dhows flew a French flag, they were Muscati manned and could be claimed as 
Muscat vessels. 

Although bilateral treaties continued to provide for mutual recognition of 

725 

ships' papers to establish nationality, advent of flags of convenience — vessels 
nominally registered under certain States' municipal legislation but beneficially 
owned by other States' nationals — in the early twentieth century challenged the 
basic principle of exclusively national decisionmaking as to which vessels could fly 

Uft 777 

a State's flag. Adopting another State's flag was nothing new, but a general 
practice came into vogue with attempts to evade Prohibition and in sale of US and 

728 

other flag vessels incident to World War I demobilization. 

The 1927 Lotus Case reiterated the principle that a vessel has a nationality con- 

729 

ferred on it by a State and is subject to the authority of the flag it flies. 

Multilateral agreements following World War I began to vindicate establishing 
nationality by ship's papers with the flag as a symbol. The 1 928 Convention on Pri- 
vate International Law (Bustamante Code), 730 1929 SOLAS, 731 1930 Load Line 

732 733 

Convention and 1 948 SOLAS echoed these principles. Given widespread ac- 
ceptance in multilateral agreements, these principles began to reflect custom. 

In 1953 the US Supreme Court repeated the traditional national determination 
principle: 

Perhaps the most venerable and universal rule of maritime law relevant to our 
problem is that which gives cardinal importance to the law of the flag. Each State 
under international law may determine for itself the conditions on which it will grant 
its nationality to a merchant ship, thereby accepting responsibility for it and 
acquiring authority over it. Nationality is evidenced to the world by the ship's papers 
and its flag. The United States has firmly and successfully maintained that the 
regularity and validity of a registration can be questioned only by the registering 
State. 735 



Law of the Sea 293 



Two years later the Nottebohm Case articulated the "genuine link" test for deter- 
mining nationality for espousal purposes in a dual-national situation. 

The 1958 High Seas Convention repeats traditional principles that every State 
may fix conditions for granting nationality to ships, registering them and granting 
the right to fly its flag. Nodding to Nottebohm, the Convention requires that a "gen- 
uine link" must exist between a ship and the State of registry; a State must exercise 
jurisdiction and control in administrative, technical and social matters over its 
flagged vessels. A State must issue documentation to vessels under its flag. Except 
for bona fide transfers of ownership or registry changes, a ship may not shift flags in 
port or on the high seas. Ships sailing under two or more States' flags may not as- 

737 

sert them to any other State and may be assimilated to a Stateless vessel. 

The ICJ, however, in rendering its advisory opinion on the Constitution of the 
Maritime Safety Committee of IMCO, stated that the phrase "largest ship-owning 
nations" in the IMCO Convention meant registered tonnage, and not beneficially 

738 

owned tonnage, thereby supporting a view that registry, and not metaphysical 
linkage, controls for purposes of nationality of ships. 

Other multilateral agreements restate the familiar nationality rule, e.g., 1960 
SOLAS, 739 1 974 SOLAS, 740 and marine pollution conventions; 741 they key State 
responsibility to ships entitled to fly the flag, or in some cases ships operating un- 
der a party's authority, fundamentally the High Seas Convention rule. Commenta- 
tors also recognized the principle of national decisionmaking to determine a ship's 
nationality. Boczek also claimed, "[T]he practice of registering ships has be- 
come universal and it is an established rule of international law that all maritime 
States make registration a formal condition of their nationality, the only exception 
being small craft. . . not intended for long-distance navigation." Issuing a docu- 
ment to evidence registration "is also universal." The Convention on Facilita- 
tion of International Maritime Traffic confirms this view. 

The 1982 LOS Convention follows the High Seas Convention's theme with ad- 
ditional requirements for flag States. The genuine link concept is preserved, to- 
gether with requirements for jurisdiction over administrative, technical and social 
matters in vessels. The LOS Convention also requires registry of all vessels, ex- 
cept small craft, flying a State's flag, and mandates flag State responsibility for 
safety at sea through adequate manning, construction and safety equipment, and 
signalling to communicate and prevent collisions. If another State has clear 
grounds to believe a flag State is not exercising proper jurisdiction and control 
over a ship, the other State may report the facts to the flag State, which must inves- 

748 

tigate the matter and take appropriate action. 

The 1986 Ship Registration Convention elaborates on the LOS Convention. 
Few States are party to it, but they include two Gulf States (Iraq, Oman), which rat- 
ified after the Tanker War. After declaring that ships have the State's national- 

7S 1 

ity whose flag they are entitled to fly, the Convention requires that parties must 



294 The Tanker War 



have a competent, adequate national maritime administration to manage and con- 

752 

trol vessels flying their flags. Registration requirements are stated with particu- 

753 
larity. Although the Registration Convention does not mention genuine link, it 

lays down specific rules for nationality. First, a State's national laws may provide 
for ownership rules, which must "include appropriate provisions for participation 
by the State or its nationals as owners of ships flying its flag or in the ownership of 
such ships and for the level of such participation." These laws must "be sufficient 
to permit the flag State to exercise effectively its jurisdiction and control over ships 
flying its flag." Alternatively, States may "observe the principle that a satisfac- 
tory part of the complement" of a ship be flag State nationals, domiciliaries or law- 
ful permanent residents. This goal must be considered in the light of available 
seafarers meeting the criterion, "sound and economically viable operation of [the 

flag State's] ships," and other international agreements. This alternative must be 

755 
applied on a ship, company or fleet basis. Other nationals may serve on a State's 

ships, but its own nationals, domiciliaries or permanent residents should be given 
opportunity for education and training in maritime work. 

Under either alternative, a registry State must ensure that a shipowning com- 
pany, or a subsidiary, is established "and/or has its principal place of business 
within its territory in accordance with its laws and regulations." If a company is 
not a flag State-established enterprise or does not have its principal place of busi- 
ness there, a flag State national — either a natural or juridical person, e.g., a corpora- 
tion — in a management or representative capacity must be available for legal 
process. Moreover, a flag State must ensure that those accountable for or managing 

757 

a ship are financially responsible as to potential tort liability and crew wages. 
Registration and documentation requirements are detailed; there are provi- 

758 

sions for bareboat charterers. The Convention encourages joint ventures to 

759 

enlarge developing States' national shipping industries and protecting labor- 

760 

supplying nations' interests. IMO and other international organizations may 

761 

assist in implementation. 

Because of low acceptance since 1 986 and its emergence during the Tanker War, 
the Registry Convention does not represent customary law. Its confirming LOS 

76? 

Convention rules, which build on the High Seas Convention's, i.e., means that 
although the LOS requires a genuine link between a registry State and a ship, reg- 
istry details must be left to that country. 

763 

Few claims with respect to separate chartering interests ' have been asserted. 
In 1921 the United States allowed US charter interests to fly the national ensign at 
the masthead and a Chinese ensign at the stern, despite US Navy concerns about 
identification. Chinese municipal law permitted the practice. This practice 
would have tended to run afoul of High Seas Convention and LOS Convention 

765 

rules for single flags from ships. The Ship Registration Convention permits a 
State to register a vessel bareboat chartered-in, for the time of the charter, and to 



Law of the Sea 295 



allow the vessel to fly its flag. This would not have violated the rule against two 
flags, for the chartered ship will be registered in only the chartering-in State. 
States may espouse charterer claims like other claims. The intervention 
conventions require charter interests to be consulted if possible; certain limita- 
tion of liability treaties may equate some charterers with owners for private civil li- 

770 

ability purposes, even as a charterer may be equated with an owner when cargo 

771 

interests claim for damage during transit. 

4. Warships; Other Public Vessels 

The definition of a warship under the law of the sea and the law of naval warfare 
are nearly identical today. Thus whether a warship operates under the LOS or the 
LOAC, to which the LOS is subject under the other rules clauses of the LOS con- 

772 

ventions or customary law, the analysis results are the same. The first defini- 
tions of warships were published in the law of naval warfare. 

Hague VII, announcing rules for conversion of merchantmen into warships, 
was the first general treaty to state rules that would apply to converted vessels: 

... A merchant ship converted into a war-ship cannot have the rights and duties 
accruing to such vessels unless it is placed under the direct authority, immediate 
control and responsibility of the Power whose flag it flies. . . . Merchant ships [so] 
converted. . . must bear the external marks which distinguish the war-ships of their 
nationality. . . . [Its] commander must be in the service of the State and duly 
commissioned by the competent authorities. His name must [be] on the list of the 
officers of the fighting fleet. . . . The crew must be subject to military discipline. 

Vessels so converted must observe the law and customs of war; belligerents must 

773 

announce conversion as soon as possible. The Convention, although all States 

have not ratified it, restates customary law except perhaps as to where conver- 

775 
sion must take place, today a moot issue because of merchantmen's size and 

complexity, which demands conversion in a shipyard and not on the high seas as 

occurred with the C.S.S. Alabama during the Civil War. 

The 1913 Oxford Manual of Naval War defined "War-ships [as] Constituting 

part of the armed force of a belligerent State and, therefore, subject as such to the 

laws of naval warfare. . . which, under the direction of a military commander and 



manned by a military crew, carry legally the ensign and the pendant of the national 

777 119k 

navy," plus ships converted as warships, the customary rule of that time. 
In 1916 the US Secretary of State published this definition of a warship: 



A belligerent warship is any vessel which, under commission or orders of its 
government imposing penalties or entitling it to prize money, is armed for the 
purpose of seeking and capturing or destroying enemy property or hostile neutral 
property on the seas. The size of the vessel, strength of armament, and its defensive or 
offensive force are immaterial.^ 9 



296 The Tanker War 



The 1930 London Naval Treaty did little to help definition. Although carefully 
categorizing ships usually considered men of war, e.g., capital ships or battleships, 
aircraft carriers, cruisers, destroyers, minelayers, etc., including "special vessels," 

yon 

e.g., yachts, tenders, transports, depot ships, etc., as "naval combatant vessels' 
did not clarify whether these were warships or not. The 1 936 London Naval Treaty 
categories for vessels usually considered warships was a second effort at particular- 

781 

ity by again describing existing combatant vessels; naval auxiliaries were ex- 

782 

eluded from classification as men of war. The 1936 Montreux Convention, 

78 3 

regulating Turkish Straits passage, followed this formula. 

Forty years and two World Wars involving major maritime conflict later, the 
1958 High Seas Convention defined "warship" as 

a ship belonging to the naval forces of a State and bearing the external marks 
distinguishing warships of its nationality, under the command of an officer duly 
commissioned by the government and whose name appears in the Navy List, and 
manned by a crew. . . under regular naval discipline. "784 

785 
This represents the customary rule. It is repeated, nearly verbatim, in the 1962 

70/T 

Convention on Liability of Operators of Nuclear Ships, the 1972 INCSEA 

787 788 

Agreement and the 1977 Panama Canal neutrality treaty. Except for referring 
to vessels "belonging to the armed forces of a State," thereby recognizing present 
realities of unified armed services, e.g., the Canadian Forces, or that military ser- 

789 

vices other than navies may operate warships (e.g., the US Coast Guard). The 

LOS Convention followed virtually the same language in 1982, but for all ocean ar- 

790 ii i-ii 791 

eas. " Nuclear and conventionally powered warships have identical status; 

792 

there is no requirement that a warship be armed. Title to sunken or wrecked 

793 
warships and military aircraft remains in the State whose flag they flew. J Under 

the law of the sea, warships, wrecked, sunken or in service, enjoy sovereign immu- 
nity from authorities of States other than the flag State. In wartime situations, to 
the extent the LOS continues to apply, e.g., between a belligerent and a neutral, 
LOS immunity rules continue to apply, including title to sunken vessels or air- 

795 

craft. On the other hand, operation of the other rules clauses as between 
belligerents during war means that attacking and capturing an opponent's warship 
or military aircraft vests title immediately in the captor. This includes wrecked or 

sunken warships or aircraft if successfully recovered or otherwise brought into an 

796 
opponent's possession, 

Protocol I, Article 43(1), one of that treaty's few provisions applying to naval 

797 

warfare, is more general, applying to all armed forces but echoing the LOS 
definition: 

The armed forces of a Party to a conflict consist of organized armed forces, groups and 
units which are under a command responsible to that Party for the conduct of its 



Law of the Sea 297 



subordinates, even if that Party is represented by a government or an authority not 
recognized by an adverse Party. Such armed forces shall be subject to an internal 
disciplinary system which, inter alia, shall enforce compliance with the rules of 
international law applicable in armed conflict. 798 

Undoubtedly the LOS Convention rule is a customary norm for the law of the sea 
today. However, as Swarzenberger and others have pointed out, the LOS def- 

801 

inition is subject to the LOS treaties' other rules clauses, the result being that in 
the future the definition of a warship for law of naval warfare purposes may chart a 
different course than the LOS definition. For example, States could invoke and 
build gloss on Protocol I, art. 43, or apply Article 43 as a base for a customary norm 
if they are not party to the Protocol, the present case for the United States. For now, 

802 

however, the definitions have merged for the LOS and the LOAC. The definite 
trend of the law is that if a ship meets the LOS warship definition, regardless of its 
size, means of propulsion and armament or lack of it, it is a warship. 

Although the LOS conventions have mentioned other ships owned or perhaps 

803 

operated under charter by or for States for public purposes, no definitional 
claims have been asserted, beyond statements that they may be totally immune 
from other States' jurisdiction on the high seas. These issues should be differen- 

805 

tiated from the law of naval auxiliaries, which applies during wartime. On the 
other hand, there were issues related to State-owned commercial vessels, e.g., tank- 
ers owned by governments such as Kuwait. In general the law of the sea applies the 
same rules for these ships as for privately owned merchantmen. 

The LOS Convention also provides that the genuine link and single-flag re- 
quirements do not prejudice the issue of vessels "employed on the official service 
of the United Nations, its specialized agencies or the International Atomic Energy 
Agency, flying the flag of the organization." The High Seas Convention includes 

807 

similar provisions. Protocol I forbids flying the UN flag unless "authorized by 

808 

that Organization." The UN flag has been flown on several occasions; when em- 
ployed in peacekeeping operations, in practice it has been flown alone after agree- 

809 

ments with the Host Country, i.e., the State supplying the platform(s) or unit(s). 
Protocol I also prohibits improper use of the red cross, red crescent, and red lion 

810 

and sun, the inference being that it can be used with ICRC permission and by 
agreement of State(s) concerned. 



5. Ocean Transit in Company; Warship Formation Steaming; Convoys 

Although as a general rule, merchantmen of any size travel independently, al- 
beit in the case of liners on predetermined paths through the seas, or on prescribed 
routes, perhaps on the high seas as a matter of private initiative, or through straits 

Oil 

or the territorial sea at coastal State direction, small ships, e.g. fishing vessels, 
may proceed in convoy for mutual assistance in case of casualties or heavy weather. 

on 

They may operate together for commercial purposes, e.g., fishing. Warships 



298 The Tanker War 



may also steam independently, which is the usual situation in the case of subma- 
rines. However, for safety and mutual protection, warships may proceed in com- 
pany, often in formation as ordered by the force commander. The law of the sea 
does not restrict these freedoms of the seas, even in the case of warships steaming in 

813 

formation in straits, except that all oceans users must have due regard for others' 

814 

LOS rights. By extension of this analysis, the law of the sea, as distinguished 

from the law of armed conflict, applicable in certain situations through the LOS 

815 
other rules clauses, does not forbid or qualify the right of "mixed company" us- 
age of the oceans, i.e., when merchant ships and warships travel together in con- 
voys for reasons of safety and perhaps protection by the warship(s). Royal 
Navy warships accompanied and attempted to protect UK flag trawlers fishing be- 

818 

yond the three-mile territorial sea limit off Iceland during the First Cod War, 
for example. Convoy principles in armed conflict situations are different, how- 

819 

ever. 

6. The Tanker War: Analysis 

Even today the record is less than clear and full as to the identity of transna- 
tional claimants involved in the Tanker War. Civil litigation and government-es- 

820 821 

poused claims may proceed for years in the future. It is certain, however, that 
there were significant claims during the war. Merchant shipping losses, and the 

822 

deaths and injuries of merchant mariners, were the highest since World War II, 
there were claims arising from attacks by and on naval vessels, some of them defen- 

823 824 

sive in nature, and the environment suffered. There were also questions in- 
volving the nationality of ships. 

The clear inference from the LOS conventions and customary law is that as 
long as a new registry State has a genuine link to a vessel through compliance with 
the new State's registry requirements for ship safety, etc., and there is ownership of 
the vessel, perhaps beneficial ownership through corporate shares, in nationals of 
the new registry State, LOS requirements are satisfied. The LOS leaves registra- 
tion details to the new registry State. It may be presumed that reflagging Kuwaiti- 
registered tankers to US registry satisfied the LOS basic requirements. Proper US 

825 
registration procedures were followed, and US nationals served as masters. It 

was also appropriate for US and other navies to convoy, escort or accompany mer- 
chantmen, exercising a right of proportional self-defense if the merchant ships 
were attacked or threatened with attack. 

Neutrals also observed the rule of rescuing persons in danger of being lost at sea 
when they picked up survivors of attacks on merchantmen or naval vessels (e.g., 
IranAjr), whether flying the same or another flag, people on offshore platforms, or 
at least one aviator who went down at sea. (In many cases the record is silent on in- 
dividual rescue efforts, but available sources indicate neutrals, including warships 



Law of the Sea 299 



and merchant vessels, attempted to perform rescues commensurate with their 

827 

ships' safety, as the rule allows.) 

Late in the war Iran used speedboats to attack tankers and other ships exercis- 
ing freedom of navigation in the Strait of Hormuz and the Persian Gulf These 
boats apparently exercised in naval maneuvers. Crew surviving neutrals' self-de- 
fense responses were repatriated to Iran as the 1949 Geneva Conventions provide. 
Presumably other speedboaters Iraq may have captured were treated as prisoners 

828 

of war and repatriated at the war's end. It is not clear, from the available record, 

829 

whether these vessels met the customary definition of warships. Although their 
personnel were perhaps imbued with a spirit of suicide not unlike World War II 
kamikaze and other pilots and midget submarine crew, the boats themselves appear 
to have been warships. 

On at least one occasion when the reflagged tankers were ready to leave Kuwait, 

commercial tug crews refused to man tugs to accompany them. US Navy volun- 

830 
teers manned the tugs, which were equipped with minesweep gear. The record 

is not clear whether the tugs met two standards of the definition of a warship, i.e., 

under the command of an officer duly commissioned by the United States, or 

whether the tugs bore external marks distinguishing ships of the United States. 

831 

Probably the crews were under US military discipline. Nor can it be determined 

832 

whether the tugs were government ships used for non-commercial purposes; 
they may have been privately owned but manned by military personnel, or they 
may have been State-owned by Kuwait but operated for commercial towage. If pri- 
vately owned but crewed by military personnel of a nationality other than the 

833 

owner(s), this would make the tugs subject to the LOS genuine link principle. If 
owned by Kuwait, the issue is whether they were operated for commercial pur- 
poses or whether they were used for noncommercial purposes. The available re- 
cord does not give an answer. The nature of the minesweep gear aboard the tugs is 

834 

not clear either; this is a law of naval warfare issue. Based on the scanty record, it 
may be presumed that it was admissible under international law to man the tugs 
under the circumstances. If the tugs were commercial in nature, having a foreign 
crew made no difference; merchantmen the world over sail with crews of mixed 
nationalities. If the tugs were non-commercial, owned by Kuwait, it was the busi- 
ness of Kuwait to determine who would man them. The tugs did not become war- 
ships because they were operated by US Navy personnel, however. 

Early in the war it was proposed evacuating merchant ships trapped in the Shatt 

83S 

al-Arab under the UN or ICRC flag. Iraq rejected this. The UN flag proposal fol- 

836 

lowed UN practice in seeking affected parties' agreement. When this was not 
forthcoming, the proposal died. The ICRC flag proposal also required affected par- 

837 

ties' agreement, and when this was not forthcoming, this proposal also died. 

838 

Merchant shipping losses, and claims arising from dislocations during the 

839 840 

war, were many. In many instances owners' losses were covered by insurance. 



300 The Tanker War 



841 

There is always a possibility of government espousal, where the genuine link 

842 

issue will arise. Thus far there appear to be no such claims. 

Although there were charter interests afloat in the Gulf during the Tanker War, 

843 

e.g., USSR tanker charters to Kuwait, there appear to have been no published 
claims in connection with losses to charter interests. In many instances these may 
have been subrogated to insurance carriers, although there is the possibility of 

845 

espousal for these claims as well. 

Aside from possible subrogation claims in connection with pollution interven- 
tion or private claims, no separate identification of insurance claims with, or apart 
from, the vessel have been noted. Insurance rates for war risk and other coverage 
rose spectacularly during the war, predicated on shipping losses, which were the 

QAf. 

heaviest since World War II. Insurance and cargo claims usually follow the law 

847 

of the flag, although States may espouse nationals' claims here as in other situa- 

848 
tions. National cargo preference legislation may direct that certain cargoes, e.g., 

849 

military supplies, be carried only in vessels flagged under that State. ' In that cir- 
cumstance the flag of cargo and ship will coincide. The cabotage trade of most 
States is restricted to carriage in national bottoms; this is often confirmed by trea- 

850 

ties. Although it would not necessarily be true, in many cases nationality of the 
ship and its cargo will coincide. This would be particularly true with respect to pe- 
troleum products, e.g., crude oil from Valdez, Alaska, bound for US refineries. 
This might be contrasted with Persian Gulf oil lift, which was almost never in cab- 
otage. Tanker convoys may have proceeded along the Saudi or Iranian coasts, but 
these were not engaged in coastal trade, at least as far as the record shows. The oil 

851 

was for world trade. Local oil shipments, e.g., from northern to southern Iran, 

852 
went by pipeline. 

853 
There seems to be no record of government-espoused claims for cargo or in- 
surance interests. Nor does the record reveal the extent of claims by banks and 
other holders of ship mortgages; since vessels are almost invariably mortgaged, 
usually to the hilt, undoubtedly these claims figured in economic losses of the war 

854 

to the extent not covered by insurance. As the record of claims after any crisis, 

855 

economic dislocation or war shows, there was and is potential for espousal of 
these claims. 

There was heavy loss of life and injury to merchant seamen during the war from 

857 

belligerents' attacks on neutral shipping. Others may have been injured or may 

858 
have died because of Iranian attacks on neutrals' offshore oil pumping facilities. 

There were 290 deaths in the Vincennes- Airbus tragedy, and the United States 

859 

compensated victims' families. There may have been deaths or injuries result- 
ing from other mistaken defensive actions, e.g., the United States' firing on fishing 

860 

vessels or dhows. There were deaths and personal injuries among the U.S.S. 
Stark and U.S.S. Samuel B. Roberts crews. Other military personnel from neu- 
tral countries may have been hurt or may have died because of belligerents' 



Law of the Sea 301 



war-related actions. There probably were deaths or injuries connected with US de- 
fensive attacks on oil platforms, and there were deaths or injuries connected 
with US defensive attacks on IranAjr and other Iranian vessels or aircraft, notably 
the speedboats. In the Vincennes- Airbus and Stark cases, governments paid 
compensation, the United States in the Vincennes incident and Iraq for Stark 

QC.A 

deaths and injuries. Transnational litigation may resolve other death and per- 
sonal injury claims, particularly for the merchant mariners, or parties may be com- 
pensated through espousal. In many cases insurance may protect owners, 

Qf.fi 

charterers, etc., from personal liability for these claims. Governments may com- 
pensate their military personnel or their survivors under national law for active 
service injury or death, and these sums might be added to espoused claims. 

The record is sparse as to proceedings involving these claims, and their amount 
and number, other than those involving Stark, Vincennes and the Rostum 
platforms. 

Part D. General Conclusions and Appraisal for the Law of the Sea 

The Tanker War was a long conflict, eight years from the first shots and four 
years of more intensive war at sea. It produced nearly every conceivable issue re- 
lated to the law of the sea, the law of armed conflict, and law under the UN Charter. 
Chapter III analyzed Charter law in the Tanker War, and Chapter V will discuss 
LOAC issues. 

The Tanker War began while LOS Convention negotiations were underway. 
When the war ended in 1988, the ratification process was underway, but not 
enough countries had ratified the treaty for it to be effective as an international 
agreement. Some Tanker War participants had ratified the LOS Convention by 
1988, however. For these States, there was an obligation not to defeat the treaty's 
object and purpose besides their duties under customary law (which might include 
customary rules restated in the LOS Convention) and perhaps the 1958 LOS con- 
ventions, if they were party to them. Other countries, e.g., the United Kingdom 
and the United States, were not signatories or parties to the LOS Convention dur- 
ing the war but were parties to the 1958 LOS conventions. These countries were 
also bound by the customary law of the sea, including custom restated in the LOS 
Convention. Some States, including many Persian Gulf nations, were party to 
none of the LOS conventions. Nevertheless, these countries were bound by the 
customary law of the sea restated in the conventions, as well as other customary 
norms. The Tanker War era, 1980-88, was a time of transition for the law of the sea, 
requiring analysis of every issue under custom and five LOS conventions, in addi- 
tion to other special LOS-related agreements. 



302 The Tanker War 



1. High Seas Freedoms: Navigation and Overflight 

Neutral countries' warships and military aircraft, whether launched from air- 
craft carriers or the land, had freedom of navigation or overflight in the Gulf, sub- 
ject to the LOS norms limiting those freedoms, e.g., due regard for others' exercise 
of these high seas freedoms, and the LOAC when it applied. Similarly, belligerents 
in their relations with neutrals had high seas freedoms of overflight and naviga- 
tion, again subject to LOS norms limiting those freedoms, e.g., due regard for neu- 
trals' exercise of high seas freedoms, and the LOAC when it applied. In all cases, as 
between treaty-based norms and the U.N. Charter, the Charter prevailed. One ex- 
ample of this was the Airbus tragedy. Iranian aircraft had Gulf overflight rights, 
but the United States had a right to respond (in this case, in error) in self-defense 
when its warship appeared threatened by what was mistakenly perceived to be an 
incoming Iranian military aircraft. 

In terms of customary LOS norms, the same principles were at stake, unless one 
takes the view that a separate customary Charter-based norm at variance from 
principles under the Charter was at issue, or that the customary Charter-based 
norm had been elevated to jus cogens status and therefore prevailed over custom or 
treaty-based rules. There is no evidence of claims involving these issues. 

During the Tanker War belligerents interfered with neutrals' freedom of navi- 
gation through indiscriminate mining. Moreover, although it was an LOAC issue 
because they chose to fire indiscriminately on neutral merchantmen or neutral 
military aircraft in many instances, belligerents also violated neutrals' high seas 
rights of freedom of navigation and overflight. It was proper under the law of 
self-defense for neutral military forces (air, surface warships) to respond propor- 
tionally to attacks on warships, merchantmen flying the warship's flag, or (if re- 
quested, under a theory of informal self-defense) merchant ships flying other 
neutrals' flags, if the merchant vessels had not acquired enemy character through, 
e.g., carrying war-fighting or war-sustaining goods for the opposing belligerent 
pursuant to that belligerent's direction or control as discussed in Chapter V. 

Belligerents could announce and conduct naval maneuvers in Gulf high seas ar- 
eas so long as they observed due regard for neutrals' high seas freedoms. Similarly, 
neutrals could announce and conduct these maneuvers, so long as they observed 
due regard for others' high seas freedoms, whether the other States were neutrals or 
belligerents. 

2. EEZs, Fishing and the Continental Shelf in the Persian Gulf 

There appear to have been no claims of LOS violations regarding Gulf EEZs, 
fishing or continental shelf zones. (As a technical matter, the Gulf does not have a 
continental shelf as defined in the law of the sea; there is no continental slope to the 
deep abyss.) All States, neutral or belligerent, continued to have high seas free- 
doms of navigation and overflight through these areas claimed by neutrals, subject 



Law of the Sea 303 



to limitations imposed by the LOS regime, e.g., due regard or the equivalent for 
rights of coastal States in their EEZ, fishing or continental shelf operations. There 
were one or two attacks by neutrals on neutral fishing vessels operating legiti- 
mately in these areas when these craft were mistaken for attacking belligerent 
forces. As in the Airbus case, the response was in self-defense to a mistakenly per- 
ceived threat. The LOAC governed belligerents' attacks on an opponent's offshore 
facilities, as analyzed in Chapter V. Belligerents' attacks on neutrals' offshore facil- 
ities were governed by Charter-based law, i.e., Article 2(4). Similarly, the US de- 
struction of Iranian offshore platforms was a self-defense response to attacks 
launched or directed from those and other platforms on innocent neutral 
merchantmen. 

3. The Territorial Sea and Contiguous Zone in the Persian Gulf; Entry into 
Neutral Ports 

During the Eighties more and more States shifted from traditional three-mile 
territorial sea claims to more expansive sovereignty claims, up to and beyond the 
12-mile limit the LOS Convention would allow. There were also claims to offshore 
contiguous zones. These claims in some cases exceeded LOS limits, in terms of 
breadth (particularly under the 1958 Territorial Sea and similar customary re- 
gimes) and because of baselines declarations that did not always square with LOS 
definitions. None of these claims figured in the sea war, however. 

Territorial sea usage did, however. Iran could use its territorial sea as well as the 
high seas for naval maneuvers. Iran could suspend territorial sea innocent passage 
temporarily for security reasons in connection with these maneuvers. It could use 
its territorial sea for coastal convoys of tankers under the LOS regime. (As Chapter 
V will point out, the LOAC allowed attacks on its warships during these maneu- 
vers and attacks on the convoys if they carried war-fighting or war-sustaining 
goods.) However, Iran could not permanently bar territorial sea innocent passage, 
even as it could not permanently bar transit passage through the Strait of Hormuz. 

Saudi Arabia could legitimately proclaim territorial sea safety corridors to facil- 
itate neutral tanker traffic. It was unlawful for Iran to use neutrals' territorial seas 
for naval maneuvers; this was a violation of neutrals' territorial integrity under the 
Charter, Article 2(4). It was also unlawful for belligerents to attack neutral ports or 
attempt to frustrate entry into or egress from neutral ports, and the UN Security 
Council was fully justified in denouncing this behavior. The LOS principle, which 
is congruent with Article 2(4) and LOAC principles regarding neutrals, was 
thereby strengthened and reinforced. 

4. Passage Through the Strait of Hormuz 

As noted, the Tanker War began while LOS Convention negotiations were 
on-going. When the war ended in 1988, the ratification process was underway. 



304 The Tanker War 



During the Eighties more and more States shifted from traditional three-mile ter- 
ritorial sea claims to more expansive sovereignty claims, up to and beyond the 
12-mile limit the LOS Convention would allow. This had important ramifications 
for the law of straits passage. If three miles was all a coastal State could claim, the 
Strait of Hormuz had a narrow band of high seas through which ocean traffic could 
exercise freedoms of navigation and overflight under the 1958 LOS conventions' 
high seas regime. On the other hand, if the LOS Convention territorial sea defini- 
tion was the law and 12 miles could be claimed, the territorial seas of Iran and the 
UAE could (and did) totally overlap, so that the LOS Convention straits transit 
passage regime applied. Claims of Iraq and neutrals, e.g., the United States, that 
Iran could not deny straits passage under either regime were well-founded in inter- 
national law. This