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Foreign Warships and Immunity for Espionage

Published online by Cambridge University Press:  27 February 2017

Ingrid Delupis
Ingrid Delupis*
Affiliation:
The London School of Economics and St. Antony’s College, Oxford
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Extract

On October 27, 1981, a Soviet submarine 137 surfaced in Swedish internal waters, well inside the military protection area of the naval base of Karlskrona. The submarine had grounded on a shoal and was unable to move without assistance. The Swedish Government refused a request from the USSR to salvage the ship itself and demanded that, in return for assistance by Swedish vessels, the commander submit to interrogation by Swedish authorities. The Soviet Union acceded to this by a formal agreement. The submarine was eventually escorted out of Swedish territorial waters.

Type
Research Article
Information
American Journal of International Law , Volume 78 , Issue 1 , January 1984 , pp. 53 - 75
Copyright
Copyright © American Society of International Law 1984

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References

1 For a survey of relevant events, see Utrikesfrägor 1981 (Stockholm 1982); and Report by the Constitutional Council (KU), Konstitutionsutskottet Granskningsbetänkande 1981/ 82:35, at 12 et seq.

2 See KU, Report, supra note 1, for pronouncements by Swedish Prime Minister Falldin on March 16, 1982, at 129; by the Chancellor of Justice on Jan. 26, 1982, at 164 el seq.; and by the Ombudsman of Justice on March 11, 1982, at 170 et seq. Cf. statement by the Swedish Minister of Justice in the Swedish Parliament, Snabbprotokoll Frän Riksdagsdebatterna, No. 145, 1981–82; and pronouncements by the Adviser to the Swedish Ministry of Foreign Affairs, Bo Johnson, KU, Report, supra note 1, at 143 et seq.; and in U-137—Folkrätt och neutralitetspolitik i tillämpning, Kungl. Krigsvetenskapsakademiens handlingar och tidskrift, No. 2,1982, at 85 et seq.

3 E.g., Berg, , Das sowjetische U-Boot in schwedischen Hoheitsgewässern, Fragen der Immunität fremder Kriegsschiffe, 42 Zeitschrift für Ausländisches Öffentliches Recht und Völkerrecht 316 (1982)Google Scholar; Dolzer, , Heine Immunität für Spionageschiffe, Frankfurter Allgemeine Zeitung, Nov. 6, 1981 Google Scholar.

4 Utrikesfrågor 1982, at 91 (Stockholm 1983).

5 The Schooner Exchange v. M’Faddon, 11 U.S. (7 Cranch) 116(1812); The Alexander, [1906] 1 H.K.L.R. 122, 129, 130.

6 See King, , Jurisdiction over Friendly Foreign Armed Forces, 36 AJIL 539 (1942)CrossRefGoogle Scholar; King, , Further Developments concerning Jurisdiction over Friendly Foreign Armed Forces, 40 id. at 257 (1946)Google Scholar; Barton, , Foreign Armed Forces: Immunity from Supervisory Jurisdiction, 26 Brit. Y.B. Int’l L. 380, 387 (1949)Google Scholar; Barton, , Foreign Armed Forces: Immunity from Criminal Jurisdiction, 27 id. at 186 (1950)Google Scholar; Barton, , Foreign Armed Forces: Qualified Jurisdictional Immunity, 31 id. at 341 (1954)Google Scholar, on international agreements and the Visiting Forces Acts. On immunities of UN troops, see 1 R. Higgins, United Nations Peacekeeping 277, 287–89, 377–78, 382–84, 563–65; 2 id. at 129–30, 212; 3 id. at 72, 128, 201–02, 207; 4 id. at 48–49, 154–56, 203, 215–16 (1969–81).

7 Barton, Qualified Immunity, supra note 6, at 341.

8 Barton, Supervisory Jurisdiction, supra note 6, at 412. For various incidents, see 2 G. Hackworth, Digest of International Law 405 et seq. (1941).

9 Barton, Criminal Jurisdiction, supra note 6, at 186; Barton, Qualified Immunity, supra note 6, at 341.

10 2 Wengler, W., Völkerrecht 961 (1964)Google Scholar; cf. id. at 1152; 1 Guggenheim, P., Lehrbuch des Völkerrechts 479 (1948)Google Scholar; 1 Oppenheim, L., International Law §445, at 847 (8th ed. Lauterpacht 1955)Google Scholar; 2 G. Hackworth, supra note 8, at 408; cf. Hall, W., A Treatise on International Law 250 (8th ed. 1924)Google Scholar.

11 1 Hyde, C., International Law, Chiefly as Interpreted and Applied by the United States 820 (2d rev. ed. 1945)Google Scholar.

12 Id. at 821 n.2. Cf. note 25 infra.

13 See the Tampico Incident, 2 G. Hackworth, supra note 8, at 420–21. For further state practice, see note 25 infra. Cf. Curtis, , The Law of Hostile Military Expeditions as Applied by the United States, 8 AJIL 1 (1914)Google Scholar. For exceptions entailing individual responsibility for war crimes, see text at notes 51 and 99 infra.

14 See, e.g., The St. Albans Claim (1864), 4 Moore, J., History and Digest of International Arbitrations to Which the United States has Been A Party 4042 (1898)Google Scholar.

15 Apart from the general textbooks, see Steinert, K., Die Internationalrechtliche Stellung des Schiffes im Fremden Küstenmeer im Frieden (1970)Google Scholar; Feine, G., die Völkerrechtliche Stellung der Staatsschiffe (1921)Google Scholar; Böger, M., Die Immunität der Staatsschiffe (1928)Google Scholar; Brittin, B., International Law for Seagoing Officers 87 (1956)Google Scholar.

16 34 Institutde Droit International, Annuaire 741 (1928), Article 15 of the “Stockholm Rules” adopted at the session in Stockholm. For identification of a “warship,” note the “designed usage” test under Article 3 of the Brussels Convention referred to in note 19 infra. Cf. §10 of the UK Act referred to in note 33 infra. It is also relevant if the ship is listed as commissioned by the navy in a register of the flag state or in annual publications such us Jane’s List of Fighting Vessels. Cf. GoffJ. in 1° Congreso del Partido, [1977] 1 Lloyd’s L.R. 536, 551, 553–54.

17 For discussions in the Institute in 1897, see 4 Annuaire 275 et seq. (1897–1904); on the older law, see, e.g., 1 Calvo, C., Le Droit International Théorique et Pratique 554 (3d ed. 1887)Google Scholar; W. Hall, supra note 10, at 237–50.

18 See, e.g., Colombos, C., International Law of the Sea 262 (6th ed. 1967)Google Scholar; L. Oppenheim, supra note 10, at 450. The notion of extraterritoriality (the ship as a “floating portion” of the flag state) referred to by Oppenheim in this paragraph has since been abandoned.

19 The rules have also been laid down in Article 3 of the Brussels Convention of 1926 for the Unification of Certain Rules relating to the Immunity of State-Owned Vessels, 1 LNTS 199, and in Article 30 of the European Convention on State Immunity of 1972, Gr. Brit. TS No. 74 (Cmnd. 7742). The Brussels Convention, which has been ratified by only a few states, codifies the general rule of immunity of warships, though it goes further than general international law in other respects and then only creates law between the contracting parties; I Congreso del Partido, [1981] 3 W.L.R. 328. Cf. The Charente Case, 1942 NYTT Juridiskt Arkiv 1. For other conventional regulations, see Article 32 of the 1982 Law of the Sea Convention, UN Doc. A / CONF.62/122 (1982).

20 The Constitution, [1879] 4 P.D. 39. Cf. Art. 3(2) of the Brussels Convention of 1926, note 19 supra.

21 The Alexander, [1906] 1 H.K.L.R. 122, 129, 130.

22 In the exceptional case of Chung Chi Cheung v. The King, 1939 A.C. 797, the coastal state (the colony of Hong Kong) assumed jurisdiction over the murder of the British captain by a Chinese cabin boy of British nationality on board a Chinese vessel. The accused and the victim were thus of the nationality of the host state; and the vessel, often referred to as a “warship,” was a Chinese customs cruiser.

23 Art. 20, Stockholm Rules, supra note 16.

24 243 F. 419, 420–21 (E.D. Pa. 1917).

25 For example, in the case of subsequent submarine incidents in Swedish waters during 1982. Cf. numerous overflight incidents by military aircraft. Czechoslovakia was not prepared to accept the explanation of distress of United States Air Force planes forced to land in Czechoslovakia in June 1951, since it “seemed doubtful that the overflight of Czech territory was again due to accident” after there had been, in a short space of time, 116 similar incidents. 65 Rev. Générale Droit Int’l Public 108, 109 (1961). For other state practice, see, e.g., the “involuntary” landing of a German zeppelin in France in 1913, 20 id. at 395 (1913); a German airplane’s forced landing due to “fog” in France, id. at 398; and for more recent cases, the U.S. C-17 in Yugoslav airspace owing to “hazards of navigation in bad weather,” 15 Dep’t State Bull. 415 (1946); Turkish “inexperienced” pilots in Bulgarian airspace in 1948, 65 Rev. Générale Droit Int’l Public 102 (1961); the British plane that deviated off course “due to bad weather” into Albanian airspace in 1957, id. at 98; the Egyptian planes that flew into Beihan airspace in 1965 owing to “pilot’s error,” [1965] 2 British Practice in International Law 146; the Saudi Arabian plane that entered Israeli airspace owing to a “defective compass” in 1976, N.Y. Times, April 14, 1976. For other incidents, see 2 G. Hackworth, supra note 8, at 304 et seq.

26 The Schooner Exchange v. M’Faddon, 11 U.S. (7 Cranch) at 141.

27 The Santissima Trinidad, 20 U.S. (7 Wheaton) 283, 353 (1822).

28 W. Hall, supra note 10, at 158.

29 Wheaton, H., Elements of International Law, pt. 2, ch. 2, para. 9Google Scholar.

30 For a summary of the practice of European states in this field, see Delupis, I., International Law and the Independent State 102 et seq. (1974)Google Scholar; and the survey by the International Law Commission, [1980] 2 Y.B. Int’l L. Comm’n, pt. 2, at 137 et seq., UN Doc. A/CN.4/SER.A/ 1980/Add.1. Cf. Sinclair, I., The Law of Sovereign Immunity: Recent Developments, 167 Recueil des Cours 113, 119(1980 II)Google Scholar.

31 See the express provision in § 1603(d) of the U.S. Foreign Sovereign Immunities Act, 28 U.S.C. §§1330, 1602–1611 (1976). See further Higgins, , Certain Unresolved Aspects of the Law of State Immunity, 29 Neth Int’l L. Rev. 265, 267–68 (1982)Google Scholar.

32 See the English cases The Philippine Admiral, 1977 A.C. 373; Trendtex Trading Corp. v. Central Bank of Nigeria, 1977 Q.B. 529; I Congreso del Partido, [1981] 3 W.L.R. 328; for the United States, see Victory Transport Inc. v. Comisaria General de Abastecimientos y Transportes, 336 F.2d 354 (2d Cir. 1964); Pan Am. Tankers Corp. v. Republic of Vietnam, 296 F. Supp. 361 (S.D.N.Y. 1969); National Am. Corp. v. Federal Republic of Nigeria, 420 F. Supp. 954 (S.D.N.Y. 1976), 425 F. Supp. 1365 (S.D.N.Y. 1977); International Ass’n of Machinists v. OPEC, 477 F. Supp. 553 (CD. Cal. 1979). See also Nonresident Petitioner v. Central Bank of Nigeria, No. 318 0 186/ 75 (District Court, Frankfurt, Dec. 2, 1975), reprinted in 16 ILM 501 (1977).

33 See the U.S. Foreign Sovereign Immunities Act, supra note 31; and the UK State Immunity Act 1978, ch. 33, the latter implementing the European Convention of 1972, supra note 19.

34 See I. Delupis, supra note 30, at 116–19. Cf. Schermers, , L’Immunité devant le droit pénal en particulier en ce qui concerne l’infraction aux règies de la circulation, in Hommages Van Bennelen 174(1965)Google Scholar.

35 But see United States v. Coplon, 84 F. Supp. 472 (S.D.N.Y. 1949), 88 F. Supp. 915 (S.D.N.Y. 1950), where action was taken against a diplomat for espionage activities before he was accredited by a host state. Note that espionage is one of the typical reasons given for expelling diplomats. See Tunkin, in [1958] 1 Y.B. Int’l L. Comm’n 148, UN Doc. A/CN.4/SER.A/1958. If the power to expel diplomats is abused and, for example, used in unwarranted cases, some claim that the sending state may “retaliate” by expelling another (innocent) diplomat; this is at least the Soviet view. See UN Conference on Diplomatic Intercourse and Immunity, UN Doc. A/CONF.20/ C.l/SR. 13/17, at 102 (1961). Occasionally, such “retaliation” may be taken to “prove” that the diplomat expelled first was innocent, too. For a recent example of the retaliation practice, see the expulsion of the Naval Attache, Captain Bruce Richardson, from Moscow following the declaration of Naval Attaché Zotov in London as a persona non grata in December 1982. The Times (London), Dec. 24 and Dec. 6, 1982.

36 I. Delupis, supra note 30, at 118. For a recent example, note the immunity of the premises of the USSR Trade Delegation in London with regard to payment of local rates. The Times, Jan. 14, 1983. Eventually, a writ was served in February 1983.

37 See Rex v. Rose, 1946–47 C.R. 107, affd, [1947] 88 C.C.C. 114, and the other cases in the aftermath of the Gouzenko affair. Gouzenko was a cipher clerk at the Soviet Embassy in Ottawa. To secure a right of asylum he handed over secret papers to the Canadian Government and by these papers several spies in Canada could be tracked down. See Canada Report of The Royal Commission (June 26, 1946). Cf. the Case of Wolf von Igel, 1916 Foreign Relations of the United States, Supp. at 807; 4 G. Hackworth, supra note 8, at 517; and Rex v. A.B. (Kent), [1941] 1 K.B. 454.

38 See Article 24 of the Vienna Convention on Diplomatic Relations of 1961, 500 UNTS 95, 23 UST 3227, TIAS No. 7502, codifying the general rules.

39 See Rex v. Rose and other cases cited in note 37 supra.

40 Wright, War Criminals, 39 AJIL 271 (1945).

41 Higgins, supra note 31, at 275.

42 1 . Delupis, , Finance and Protection of Investments in Developing Countries 89 (1973)Google Scholar.

43 Underhill v. Fernandez, 168 U.S. 250, 251 (1897). See also Banco Nacional de Cuba v. Sabbatino, 307 F.2d 845 (2d Cir. 1962).

44 I. Delupis, supra note 42, at 90.

45 E.g., Alfred Dunhill of London, Inc. v. Republic of Cuba, 125 U.S. 682 (1976). On the act of state doctrine and extraterritorial effect of nationalizations, see I. Delupis, supra note 42, at 92 et seq.

46 See the second Hickenlooper Amendment of 1964 to the Foreign Assistance Act, 22 U.S.C. §2370e(2) (1964); for amendment only, 78 Stat. 1013.

47 Wright, supra note 40, at 271.

48 See, however, text at notes 34–35 supra on the erosion of immunity for private acts of diplomats in many countries.

49 Wright, supra note 40, at 271; and text at note 99 infra.

50 See the Eichmann trial and the comments on applicable law by P. Papadatos, The Eichmann Trial 33 (1964).

51 See the Nuremberg and Tokyo trials and, for example, commentaries of Jackson, R., The Nürnberg Case (1947)Google Scholar; Keenan, J. & Brown, B., Crimes against International Law (1950)Google Scholar; Appelman, J., Military Tribunals and International Crimes (1954)Google Scholar. For potential limits to jurisdiction for war crimes, see dissenting judgment of Mr. Justice Murphy, in In re Yamashita, 327 U.S. 1, 25–47 (1945)Google Scholar.

52 Art. 29, Regulations respecting the Laws and Customs of War on Land annexed to Hague Convention IV of 1907, 36 Stat. 2277, TS No. 539.

53 Halleck, , Military Espionage, 5 AJIL 590, 598 (1911)Google Scholar.

54 Id. at 591.

55 Id.

56 6 G. Hackworth, supra note 8, at 304; 2 L. Oppenheim, supra note 10, at 424 (7th ed. 1952); W. Hall, supra note 10, at 651. Article 30 of the Hague Regulations, supra note 52, provides that a spy is entitled to a trial. But he will not enjoy any privileges of prisoners of war under the fourth Hague Convention or the 1929 Convention on Prisoners of War (6 UST 3316, TIAS No. 3364), now largely replaced by the 1949 Geneva Convention on Prisoners of War (75 UNTS 135, 6 UST 3316, TIAS No. 3364) and the Additional Protocols of 1977 (16 ILM 1391 and 1442 (1977)). Some say spies are merely “unprivileged” belligerents. Baxter, So-called “Unprivileged Belligerency”: Spies, Guerrillas, and Saboteurs, 28 Brit. Y.B. Int’l L. 323, 330 (1951). Some emphasize that a spy can be executed even if there is no municipal law on the matter. Halleck, supra note 53, at 590. Hyde finds that espionage is contrary to the laws of war. 3 C. Hyde, supra note 11, at 1865; and Hyde, , Aspects of the Saboteur Cases, 37 AJIL 88 (1943)CrossRefGoogle Scholar.

57 1 L. Oppenheim, supra note 10, at 862, para. 455. But spies do not have to stand trial before the courts of the offended state. This state may prefer to “expel” him although he does not have the status of a diplomat or a member of the armed forces entitling him to such treatment. Note, for example, the expulsion of Vladimir Chernov in January 1983 from London. Chernov was employed by the International Wheat Council in London and did not enjoy diplomatic immunity. See The Times, Jan. 13, 1983. Cf. the refusal to renew “accreditation” of Western journalists in Poland because of alleged espionage. Id.

58 1 L. Oppenheim, supra note 10, at 772, para. 455.

59 E. De Vattel, Le Droit Des Gens, bk. III, ch. X, §179.

60 See note 35 supra and accompanying text.

61 3 C. Hyde, supra note 11, at 1865.

62 Proceedings of a Board of General Officers respecting Major John André, Sept. 29, 1780, Philadelphia. See Halleck, supra note 53, at 596–97.

63 After trial, André was executed as a common spy on Oct. 2, 1780 by order of General Washington. Although André had acted as a spy, there were some foiled interstate negotiations about his release; the United States might have saved André from execution if the United Kingdom had given up Arnold, the traitor from whom André had obtained the secret papers, later concealed in his stockings. See Halleck, supra note 53, at 594–95.

64 The Shanks Case (1778), 12 Writings of Washington 14 (Bicentennial ed.); The Colbhart Case (1778), id. at 449, 450; The Clawson Case (1780), 19 id. at 23; The Farnsworth & Blair Case (1770), 13 id. at 139–40; The Bettys Case (1778), 15 id. at 364; The Smith Case (1778), id.; The Aherly & Weeks Case (1780), U.S. National Archives, War Dep’t, Revolutionary War Record, MS. No. 31521; The Loveberry Case (1780), id., MS. No. 31523; The Taylor Case (1777), 2 Public Papers of George Clinton 443 (1900); The Molesworth Case (1777), 7 Journals of the Continental Congress 210; The Palmer Case (1781), 9 Writings of Washington 56, note; The Strang Case (1781), 6 id. at 497, note; the Hicks Case (1781), 14 id. at 357; The Mason Case (1781), Hatch, L., Administration of the American Revolutionary Army 135 (1904)Google Scholar; and Van Doren, C., Secret History of the American Revolution 410 (1941)Google Scholar; The Ogden Case (1781), id.

65 See The Baker Case (1814), U.S. National Archives, War Dep’t, Judge Advocate General’s Office, Records of Court Martial, MS. No. 1–13; The Utley Case (1814), id., MS No. X-161 (Utley was acquitted); The Clark Case (1812), Military Monitor, No. 23, 1813, at 121, 122; and I. Maltby, Treatise on Court Martial and Military Law 35, 36 (1813) (Clark was released on the order of President Madison on the grounds that he was an American citizen; in 1862 Congress amended the internal law to include all persons, not merely aliens, in the statute regarding spies. See 12 Stat. 339, 340, ch. 25; and 12 Stat. 731, 737, ch. 75 (1862)); The Clifford Case, General Order [hereinafter cited as G.O.] No. 135, May 18, 1863; The Waller Case, G.O. No. 269, Aug. 4, 1863; The Yates & Casey Case, G.O. No. 382, Nov. 28, 1863; The Holton & Taylor Case, General Court Martial Order [G.C.M.O.] No. 93, May 13, 1864; The McGregory Case, G.C.M.O. No. 152, June 4, 1864; The Dodd Case, G.O. No. 3, Jan. 5, 1864. For further examples, see 2 W. Winthrop, Military Law and Precedents 1193 et seq. (1920).

66 However, under paragraph 101, “deception” of the enemy in general may be a “just means of hostility.”

67 For a view that it is not necessary to distinguish saboteurs from other spies, see Stone, J., Legal Controls of International Conflict 567 (1954)Google Scholar.

68 The Hogg Case, Dep’t of the Pacific, G.O. No. 52, June 27, 1865; The Beall Case, Dep’t of the East, G.O. No. 14, 1865; The Murphy Case, G.C.M.O. No. 107, April 18, 1866.

69 2 Moore, J., A Digest of International Law §179 (1906)Google Scholar.

70 On this case and its relevance to the law of self-defense, see note 110 infra and Jennings, The Caroline and McLeod Cases, 32 AJIL 80 (1938).

71 40 Brit. & Foreign St. Papers 1131 (1840–41).

72 1 Cobbett, P., Cases on International Law 80 (5th ed. 1931)Google Scholar.

73 223 F. 549 (D. Mass. 1915).

74 1 C. Hyde, supra note 11, at 822; Wright, supra note 40, at 271.

75 232 F. 819 (1st Cir. 1916).

76 317 U.S. 1 (1942). For criticism of this case, see Baxter, supra note 56, at 330.

77 317 U.S. at 46.

78 Id. at 31. The Court referred to the laws of war as incorporated in U.S. law and to espionage as an international “crime”; see endorsement of this conclusion by Hyde in the Saboteur Cases, supra note 56, and criticism by Baxter, supra note 56, at 330.

79 317 U.S. at 36–38 & n.12.

80 Airplanes may enjoy immunity under Article 3 of the ICAO (Chicago) Convention of 1944, 15 UNTS 295, 61 Stat. 1180, TIAS No. 1591.

81 Berg, supra note 3, at 317 et seq.

82 For a report on the case, see Hearing Before the Senate Comm. on Foreign Relations, 86th Cong., 2dSess. 115 et seq. (1960).

83 Lissitzyn, , Some Legal Implications of the U-2 and RB-47 Incidents, 56 AJIL 135–36 (1962)CrossRefGoogle Scholar.

84 Wright, , Legal Aspects of the U-2 Incident, 54 AJIL 836, 838 (1960)Google Scholar.

85 Berg, supra note 3, at 323.

86 On this, see Bucher, L., Pueblo and Bucher (1971)Google Scholar.

87 Id. at 5, 143.

88 Id. at 178, 181.

89 Id. at 234.

90 Id.

91 Id. at 220. The United States had to sign a document “admitting espionage” in order to have the crew released from North Korea. For the note, see 63 AJIL 682 (1969). For the protests of the United States, see 62 id. at 756 (1968). The crew was kept for nearly a year; the ship was never released. On the incident, see, e.g., Aldrich, , Questions of International Law Raised by the Seizure of the U.S.S. Pueblo, 63 ASIL Proc. 2 (1969)Google Scholar. On a similar mission, see Ennes, J., Assault on The Liberty (1979)Google Scholar (on the attack on the U.S. Navy intelligence ship Liberty at the Gaza Strip in 1967).

92 Berg, supra note 3, at 318.

93 6 G. Hackworth, supra note 8, at 304; 2 L. Oppenheim, supra note 10, at 328; W. Hall, supra note 10, at 650. But note that Hyde finds espionage contrary to the laws of war. 3 C. Hyde, supra note 11, at 1865.

94 The extent to which the power to prosecute a spy should be exercised may rest not with the courts but with the political branch of the government. See In re Yamashita, 327 U.S. at 49.

95 See the fourth Hague Convention of 1907, the 1929 Convention on Prisoners of War, and the 1949 Geneva Convention on Prisoners of War with Additional Protocols of 1977, supra note 56. A soldier in uniform may not even be subjected to interrogation. See the treatment of Captain Astiz during the recent Falkland crisis, who was protected by the Conventions in a “war-like” situation.

96 See, e.g., Wright, supra note 84, at 849. On the legality of spy satellites, see Woetzel, , Legal Aspects of Military Uses of Space in Soviet and American Eyes, in Space and Society 121, 126 (Taubenfeld, R. ed. 1964)Google Scholar; and Falk, , Space Espionage and World Order: A Consideration of the Samos- Midas Program, in Essays on Espionage and International Law 45 (Stanger, R. ed. 1962)Google Scholar; Senate Comm. on Astronautical and Space Sciences, Legal Problems of Space Exploration, S. Doc. No. 26, 87th Cong., 1st Sess. 1098 (1961); Zhukor, , Space Espionage, Plans and International Law, 1960 Int’l Aff. (Moscow) 53 Google Scholar.

97 Cohen-Jonathan, & Kovar, , L’Espionage en temps de paix, 1960 Annuaire Français Droit Int’l 239 CrossRefGoogle Scholar.

98 Leech, N., Oliver, C. & Sweeney, J., Cases and Materials on the International Legal System 264 (1973)Google Scholar. But many secret agents are not “trespassing.” The better view may be that espionage is illegal if it involves the presence of agents in another state’s territory.

99 E.g., Principles of International Law Recognized in the Charter and Judgment of the Nuremberg Tribunal, Report of the International Law Commission covering its Second Session, 5 UN GAOR Supp. (No. 12) at 11, UN Doc. A/1316 (1950). Principle VI provides:

The crimes hereinafter set out are punishable as crimes under international law:

a. Crimes against peace:

(i) Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances;

(ii) Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i).

b. War crimes:

Violation of the laws or customs of war which include, but are not limited to, murder, ill-treatment or deportation to slave-labour or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity;

c. Crimes against humanity:

Murder, extermination, enslavement, deportation and other inhuman acts against any civilian population, or persecution on political, racial or religious grounds, when such acts are done or such persecution is carried on in execution of or in connection with any crime against peace or any war crime.

Cf. Article 5 of the Tribunal for the Far East. Cf. also ILC Draft Article 19, [1980] 2 Y.B. Int’l L. Comm’n, supra note 30, pt. 2, at 32:

(a) a serious breach of an international obligation of essential importance for the maintenance of international peace and security, such as that prohibiting aggression;

(b) a serious breach of an international obligation of essential importance for safeguarding the right of self-determination of peoples, such as that prohibiting the establishment or maintenance by force of colonial domination;

(c) A serious breach on a widespread scale of an international obligation of essential importance for safeguarding the human being, such as those prohibiting slavery, genocide and apartheid;

(d) a serious breach of an international obligation of essential importance for the safeguarding and preservation of the human environment, such as those prohibiting massive pollution of the atmosphere or of the seas [Article 19(3)].

For criticism of this formula, which does not propose any specific regime for such international “crimes” and which does not define particular crimes in any detail, see Reuter, in discussion on the draft article, then Article 18, in [1976] 1 id. at 245, UN Doc. A/CN.4/SER.A/1976. Note the use of the term “war crime” in Ex barte Quirin, supra note 76, meaning violation of the laws of war by spies and saboteurs.

100 Cohen-Jonathan & Kovar, supra note 97, at 250.

101 Notably, Article 41 of the Vienna Convention on Diplomatic Relations, supra note 38, codifying previous rules that “it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State. They also have a duty not to interfere in the internal affairs of that State.”

102 Cf. Article 19(2)(c) of the 1982 Convention on the Law of the Sea, supra note 19, which provides that passage of a foreign ship is not innocent if the ship engages in “collecting information to the prejudice of the defence or security of the coastal State.”

103 Cohen-Jonathan & Kovar, supra note 97, at 251–54.

104 See text at note 82 supra.

105 See text at note 69 supra.

106 But this principle affords no protection for war crimes. See notes 99 and 49–51 and accompanying text.

107 On this meaning of an act of state, see text at notes 41–47 supra.

108 So also Quéneudec, J., La Responsabilité Internationale de l’Etat Pour Les Fautes Personnelles de ses Agents 47 (1966)Google Scholar.

109 Some claim that the right of self-defense preempts the question of immunity: if a warship commits illicit acts, the coastal state is no longer concerned with jurisdiction but with self-defense. 1 C. CALVO, supra note 17, at 576. In this context, one could point to practical difficulties connected with a denial of immunity to warships that commit illicit acts. How could Albania, without a navy, have arrested the commanders and crew involved in the second mine-sweeping operations in the Corfu Straits to implead them in Albanian courts? On the Corfu Channel Case (UK v. Alb.), see 1949 ICJ Rep. 4 (Judgment of April 9).

110 See on this point discussion on Article 34 of the draft on state responsibility, in particular comments by Reuter, in [1980] 1 Y.B. Int’l L. Comm’n 235, UN Doc. A/CN.4/SER.A/1980. But note Article 51 of the UN Charter, which refers to the right of individual self-defense in the case of “armed attack.” See also The Caroline (1906), 2 J. Moore, supra note 14, at 412, on self-defense outside a state’s territory.

111 There has been considerable discussion about at what stage intrusions amount to “aggression.” The USSR failed to obtain a sufficient majority for a UN resolution condemning the U-2 flight as “aggression.” See 15 UN SCOR (880th-883d mtgs.), UN Docs. S/PV.880–883 (1960). Aggression probably involves “armed attack,” a purpose that the U-2 plane did not have.

112 On the general rule of proportionality, see The I’m Alone, 3 R. Int’l Arb. Awards 1609 (1929); and the Case concerning the Air Services Agreement of 27 March 1946, Arbitral Award of 9 December 1978, 54 ILR 304 (1979).

113 See on radar and other methods to detect submarines, O’Connell, D., The Influence of Law on Sea Power 74 el seq. (1975)Google Scholar.

114 1 L. Oppenheim, supra note 10, paras. 447, 450.

115 See Article 23 of the Geneva Convention on the Territorial Sea of 1958, 516 UNTS 205, 15 UST 1606, TIAS No. 5639, and Article 30 of the new Law of the Sea Convention, supra note 19. This is the only method available to coastal states under the Conventions in the case of violations of their laws by foreign warships.

116 IFKN 1982:756, which entered into force July 1, 1983.

117 Ubåtsskyddskommissionens Yttrande, April 1983.

118 Cf. Article 31 of the Law of the Sea Convention, supra note 19, laying down that the flag state is responsible for any loss or damage caused by noncompliance of warships with laws or regulations of a coastal state.