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The Exclusion Zone Device in the Law of Naval Warfare

Published online by Cambridge University Press:  09 March 2016

W.J. Fenrick
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Canadian Yearbook of International Law/Annuaire canadien de droit international , Volume 24 , 1987 , pp. 91 - 126
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Copyright © The Canadian Council on International Law / Conseil Canadien de Droit International, representing the Board of Editors, Canadian Yearbook of International Law / Comité de Rédaction, Annuaire Canadien de Droit International 1987

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References

1 O’Connell, D.P., “International Law and Contemporary Naval Operations,” (1970) 44 B.Y.I.L. 18–85.Google Scholar

2 O’Connell, D.P., The Influence of Law on Sea Power 3 (Manchester, 1975).Google Scholar

3 Bowman, M.E., Cordon Sanitaire: The Interaction of Law and Sea Power (unpublished L.L.M. thesis, George Washington University, 1983)Google Scholar and Gilchrist, S.F., “The Cordon Sanitaire: Is It Useful? Is It Practical,” (1982) 35 Naval War College Review (N.W.C.R.) 60–72.Google Scholar

4 In theory, a belligerent is a party to an armed conflict which has indicated it is in a state of war. In the past, nations often went to war without making a declaration of war. Formal declarations of war are now rare because of the restrictions on the use of force in the U.N. Charter. Parties to an international armed conflict may exercise belligerent rights even though they have not declared war: Baxter, R.R., “The Legal Consequences of the Unlawful Use of Force under the Charter,” (1968) 62 Amer. Soc. Int’l. L. Proc. 68–75.Google Scholar

5 The exact status of the exclusive economic zone defined in the 1982 Law of the Sea Convention is somewhat unclear. As it is an area where high seas freedoms apply, it is considered to be an area where warlike operations may occur. Rauch, E., 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 33–38 (Berlin, 1984).Google Scholar

6 The existence and content of the concept of neutrality is also unclear in the post-Charter era: Norton, P.M., “Between the Ideology and the Reality: The Shadow of the Law of Neutrality,” (1976) 17 Harv. Int’l L. J. 249–311.Google Scholar

7 Law of Naval Warfare, N.W.I.P. 10–2 at 4–6 (Washington, 1955 as amended).

8 Art. 5, Hague Convention XIII of 1907 Concerning the Rights and Duties of Neutral Powers in Naval War, in Schindler, D. and Toman, J., The Laws of Armed Conflict 855, 856 (2nd ed., Geneva, 1981).Google Scholar

9 Arts, 3 and 4, Hague Convention XI of 1907 Relative to Certain Restrictions with regard to the Exercise of the Right of Capture in Naval War, ibid., 731, 732–33, and Art. 22, 24, 25, 28, and 39, Geneva Convention (II) for the Amelioration of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, ibid., 333–54.

10 Garner, J.W., “War Zones and Submarine Warfare,” (1915) 9 Am. J. Int’l L. 594, 612–26Google Scholar, and “Destruction of Neutral Merchant Vessels,” (1916) 10 Am. J. Int’l L. 12–41.

11 Pearce Higgins, A., Studies in International Law and Relations 339–304 (Cambridge, 1928).Google Scholar

12 Garner, J.W., International Law and the World War, Vol. 1, at 351–52 (London, 1920).Google Scholar

13 Ibid., 333.

14 Ibid., 334.

15 Garner, op. cit. supra note 10, “War Zones,” at 594.

16 Garner, op. cit. supra note 13, at 337.

17 Guichard, L., The Naval Blockade, 1914–1918 (New York, 1930).Google Scholar

18 Malkin, H.W., “Blockade in Modem Conditions,” (1922–23) 3 B.Y.I.L. 86–98.Google Scholar

19 Captain Fryatt, the captain of an unarmed British merchant vessel, was condemned as an unlawful combatant for attempting to ram a German submarine and was executed by Germany in 1916. The view that Captain Fryatt was an unlawful combatant was not accepted outside Germany. Garner, op. cit. supra note 12, at 407–14.

20 Garner, op. cit. supra note 12, Vol. II, at 336–39, and Rauch, op. cit. supra note 5, at 86–87.

21 Hall, J.A., The Law of Naval Warfare 246–47 (2nd ed., London, 1921)Google Scholar; Hyde, C.C., International Law Chiefly as Interpreted and Applied by the United States 1948–52 (2nd rev. ed., Boston, 1951).Google Scholar

22 Garner, op. cit. supra note 12, at 352–53.

23 Ibid., 354.

24 Authorities are cited in Tucker, R.W., The Law of War and Neutrality at Sea 301–2 (Washington, 1957).Google Scholar

25 Mallison, W.T., Studies in the Law of Naval Warfare: Submarines in General and Limited Wars 36–47 (Washington, 1968).Google Scholar

26 Schindler and Toman, op. cit. supra note 8, at 793–94.

27 Ibid., 795–97.

28 Documents of the London Naval Conference 1930 443 (London, 1930).

29 Ibid., in entirety.

30 Frank, W.G., “Naval Operations in the Spanish Civil War, 1936–39” (1984) 37 Naval War College Review 24–55.Google Scholar

31 O’Connell, op. cit. supra note 2, at 115–22.

32 Schindler and Tornan, op. cit. supra note 8, at 799–802.

33 Kalshoven, F., Belligerent Reprisals 115–60 (Leyden, 1971).Google Scholar

34 Mallison, op. cit. supra note 25, at 86–87.

35 The German Prize Ordinance of 1939, with a Commentary and Introductory Note by Professor H. A. Smith (1939) Cdn. D Hist. File 81/520/1540. The Athenia, an unarmed British passenger liner, was sunk by a German submarine on September 3, 1939, but it appears that this action was the responsibility of an inexperienced submarine commander who believed the Athenia was an armed merchant cruiser.

36 Exclusion zone declarations are contained in U.S. Naval War College, International Law Documents 1943 51–67 (Washington, 1945) and U.S. Naval War College, International Law Documents 1940 44–52 (Washington, 1942).

37 Bailey, T.A. and Ryan, P.B., Hitler vs. Roosevelt: The Undeclared Naval War 35–38 (New York, 1979).Google Scholar

38 Trials of the Major War Criminals before the International Military Tribunal, Vol. XVIII, at 328 (Nuremberg, 1948).

39 Bailey and Ryan, op. cit. supra note 37, at 38–40.

40 O’Connell, op. cit. supra note 2, at 162–64.

41 Blair, C., Silent Victory: The U.S. Submarine War against Japan (New York, 1975).Google Scholar

42 Testimony of Admiral Nimitz, Document Donitz— 100 in Trials, op. cit. supra note 40, Vol. XL, at 109–11.

43 Judgement of the International Military Tribunal for the Trial of German Major War Criminals 108–9 (London CMD 6946, 1946).

44 Smith, B.F., Reaching Judgment at Nuremberg 247–65, particularly 262 (London, 1977).Google Scholar

45 Judgment, op. cit. supra note 43, at 109.

46 Peillard, L., The Laconia Affair (New York, 1963)Google Scholar and Mallison, op. cit. supra note 25, at 137–39.

47 Robertson, H.B., “Submarine Warfare,” (1956) JAG Journal 3, 7.Google Scholar

48 Judgment, op. cit. supra note 43, at 109.

49 Trials, op. cit. supra note 38, Vol. XVIII, at 332–34.

50 Judgment, op. cit. supra note 43, at 112.

51 History of the United Nations War Crimes Commission 492 (London, 1948).

52 O’Connell, op. cit. supra note 1, at 52.

53 Mallison, op. cit. supra note 25, at 117–23.

54 There were two war crimes trials concerning submarine warfare held before German courts at Liepzig following the First World War. In the Dover Castle case, (1922) 16 Am. J. Int’l L. 704–8, the accused, a German submarine commander, was acquitted on a charge of sinking a British hospital ship on the basis of superior orders and a belief that his actions were a legitimate reprisal. In the Llandovery Castle case, (1922) 16 Am. J. Int’l L. 708–23, two German submarine officers were convicted for massacring the survivors of a torpedoed hospital ship. Their plea of superior orders was not accepted because “The killing of defenceless shipwrecked people is an act in the highest degree contrary to ethical principles.” Cameron, J., ed., The Peleus Trial (London, 1948).Google Scholar

55 Moehle Trial, 9 Law Reports of Trials of War Criminals (L.R.T.W.C.) 75–81.

56 Von Ruchteschell Trial, 9 L.R.T.W.C. 82–90.

57 The Second World War Awa Maru incident and aftermath may be a more accurate indication of future trends than the war crimes trials. The Awa Maru was a Japanese ship torpedoed by a U.S. submarine after it was given safe passage by American authorities. The submarine commander was court-martialed by American authorities and convicted of negligent performance of duties: Spear, R., “Let Pass Safely the Awa Maru ,” (1974) 100 U.S. N.I.P. 69.Google Scholar The approach taken in the Corfu Channel case may also be relevant: The Corfu Channel Case (Merits), in Churchill, R., Simmons, K.R., and Welch, J., eds., New Directions in the Law of the Sea, Vol. 4, at 286–319 (London, 1973).Google Scholar

58 Castren and Guggenheim as referred to in Whiteman, M.M., Digest of International Law, Vol. 10, at 607–8 (Washington, 1968).Google Scholar

59 Colombos, C.J. The International Law of the Sea 466 (4th rev. ed., London, 1961).Google Scholar

60 Tucker, R.W., The Law of War and Neutrality at Sea 302 (Washington, 1957).Google Scholar

61 Mallison, op. cit. supra note 25, at 91–93, and Sohler as referred to in White-man, op. cit. supra note 59, Vol. X, at 609.

62 Smith, H.A., The Crisis in the Law of Nations 57–58, 64–66 (London, 1947),Google Scholar and Mallison, op. cit. supra note 25, at 93–96.

63 The late D. P. O’Connell was a prime exponent of the idea of a lex specialis for limited naval warfare although his position altered over time. A discussion of his varying positions is contained in Crawford, J., “The Contributions of Professor D. P. O’Connell to the Discipline of International Law,” (1980) 51 B.Y.I.L. 1, at 62–66.Google Scholar

64 Fenrick, W.J., Developments in the Law of Naval Warfare since World War II: The Potential Emergence of a Law of Naval Warfare for Limited Conflicts 53–91 (unpublished L.L.M. thesis, George Washington University, 1983).Google Scholar

65 In a letter to the London Times (April 7, 1982, at 5) Col. G. I. A. D. Draper observed, with reference to a suggestion in Parliament that a 200-mile zone be created: “This is a rather curious proposal. In time of armed conflict at sea, such a limit would restrict action by the Royal Navy to an extent not required by international law. In time of normality a 200-mile limit will be difficult to justify because such a claim for a territorial sea is not yet accepted in international law.”

66 “United Kingdom Materials on International Law 1982,” (1982) 53 B.Y.I.L. 556.

67 London Times, April 7, 1982, at 6.

68 Congressional Record, May 3, 1982, at S4431.

69 London Times, April 26, 1982, at 5.

70 Ibid., April 29, 1982, at 1.

71 Ibid.

72 Ibid., May 15, 1982, at 14.

73 Ibid., May 8; 1982, at 1.

74 Barston, R.P. and Birnie, P.W., “The Falkland Islands/Malvinas Conflict: A Question of Zones,” (1983) Marine Policy 14–24.CrossRefGoogle Scholar

75 London Times, May 8, 1982, at 1.

76 Ibid., April 10, 1982, at 1.

77 Ibid., April 30, 1982, at 1.

78 Ibid., May 12, 1982, at 1.

79 Morison, S.L., “Falklands (Malvinas) Campaign: A Chronology,” (1983) 109 United States Naval Institute Proceedings (U.S.N.I.P.) 119, at 124.Google Scholar

80 Law of Naval Warfare, op. cit. supra note 7, at 4–6. In the course of the war crimes trials conducted after the Second World War, the question of the status of such official publications as the British and United States military manuals arose on various occasions. Although the courts recognized these publications as “persuasive statements of the law” and noted that insofar as the provisions of military manuals are acted upon they mould state practice, itself a source of international law, it was nevertheless stated that since these publications were not legislative instruments they possessed no formal binding power. Hence, the provisions of military manuals which clearly attempted to interpret the existing law were accepted or rejected by the courts in accordance with their opinion of the accuracy with which the law was set forth.

81 Ibid., 5–8.

82 Tucker, op. cit. supra note 24, at 319–21.

83 Mallison, op. cit. supra note 25, at 129–32.

84 Colvin, R.D., “Aftermath of the Elath,” (1969) 95 U.S.N.I.P. 61,Google Scholar and O’Connell, D.P., “International Law and Contemporary Naval Operations,” (1970) 44 B.Y.I.L. 28–29.Google Scholar

85 One incident which generated a considerable amount of controversy during and after the conflict was the sinking of the ancient Argentine cruiser General Belgrano on May 2, 1982 by the British submarine Conqueror with the loss of more than 300 Argentine sailors. The General Belgrano and two destroyers were sighted several miles south of the TEZ on May 1 by the nuclear submarine HMS Conqueror. According to an Argentine account ( Scheina, R.L., “The Malvinas Campaign,” (1983) 109 U.S.N.I.P. 104, at 106 ),Google Scholar the mission of the Argentine force was to provide an early warning for the southern mainland and to be in a position to intercept any British reinforcements that might come from the Pacific. Its operating area was entirely outside the TEZ. At the time of sighting, Britain had indicated that it would attack Argentine warships in the TEZ and Argentine warships that threatened the British task force by penetrating its defensive bubble. It is clear that the Argentine force did not enter the TEZ and it is most unlikely it presented an immediate threat to the British task force as it would, presumably, have been attacked on sight if it had presented such a threat. The Conqueror’s, commanding officer reported the sighting to his superiors, a request for permission to sink the General Belgrano was considered by the British war cabinet on May 2, and such permission was granted.

At the time of sinking, according to Argentine accounts, the General Belgrano was about 360 miles from the British task force and steaming away from it. The sinking may or may not have been politically unwise; the question here is whether or not it was legally objectionable. Britain did indicate it would attack Argentine warships in the TEZ and in the Defensive Bubble. It is unlikely the General Belgrano was in either of these areas. On the other hand, perhaps out of a justifiable abundance of caution, Britain reserved its right to take other unspecified measures in self-defence. There is no question that under the general law of naval warfare the General Belgrano was a legitimate object of attack and the fact that members of the crew would die in the attack would be unfortunate but irrelevant because they were combatants and getting sunk is a normal occupational hazard in wartime. It is unlikely that the situation is different for warships in a limited conflict. Viewed from a narrow perspective, the General Belgrano probably did not constitute a direct threat to the British task force when it was torpedoed. Viewed from a broader perspective, it may have constituted such a threat at a later point in the conflict and that alone would justify an attack upon it. On the same day as the attack on the General Belgrano by HMS Conqueror, the Argentine carrier 25 de Mayo attempted to launch an air strike against the British task force. Following the sinking, the Argentine surface navy essentially withdrew from the conflict. To the extent that the sinking caused the withdrawal, it may be that more lives were saved by it than caused by it. See Rice, D. and Gavshon, A., The Sinking of the Belgrano (London, 1984).Google Scholar

86 Young, R., “The Persian Gulf,” in Churchill, R., Simmonds, K.R., and Welch, J., eds., New Directions in the Law of the Sea, Vol. 3, at 231 (London, 1973).Google Scholar

87 Ramazani, R.K., The Persian Gulf and the Strait of Hormuz 7 (Alphen aan den Rijn, 1979).Google Scholar

88 Ibid., 9.

89 Daly, T.M., “The Enduring Gulf War,” (1985) 111 U.S.N.I.P. 148, 150.Google Scholar

90 U.S. Defense Mapping Agency and Hydrographie Center (DMAHTC) Special Warning No. 48, September 22, 1980.

91 DMAHTC Special Warning No. 50, October 7, 1980.

92 DMAHTC Special Warning No. 62, August 16, 1982.

93 R16 Persian Gulf Pilot (12th ed.), Supplement #1 corrected to June 23, 1984.

94 New York Times, May 20, 1984, at 1.

95 Daley, supra note 89, at 157. In January 1984 the United States established a 5-nautical mile defensive bubble around its naval forces in the Persian Gulf and indicated that it might take defensive measures against ships or aircraft penetrating the bubble without permission: Leich, M.N., “Contemporary Practice of the United States Relating to International Law,” (1984) 78 Am. J. Int’l L. 884–85.CrossRefGoogle Scholar

96 Danziger, R., “The Persian Gulf Tanker War,” (1985) 111 U.S.N.I.P. 160, 161.Google Scholar

97 Ibid., 163.

98 Ibid., 162.

99 U.N. Doc. S/16877, December 31, 1984, S/106877/Add. 1, January 22, 1985, and S/16877/Add. 2, December 31, 1985.

100 Danziger, supra note 96, at 163.

101 Ibid., 162.

102 Ibid., 166.

103 U.N. Doc. S/RES/540 (1983).

104 U.N. Doc. S/6585, May 25, 1984.

105 U.N. Doc. S/RES/552 (1984) June 1, 1984.

106 U.N. Doc. S/PV 2546, June 1, 1984, at 33.

107 O’Connell, D.P., “The Legality of Naval Cruise Missiles,” (1972) 66 Am. J. Int’l L. 785 CrossRefGoogle Scholar and Truver, S.C., “The Legal Status of Submarine Launched Cruise Missiles,” (1977) 103 U.S.N.I.P. 82,Google Scholar have both suggested that these missiles should be prohibited, at least in limited conflicts, because of the possibility they might strike innocent targets. Hays Parks, W., “Submarine Launched Cruise Missiles and International Law: A Response,” (1977) 103 U.S.N.I.P. 120,Google Scholar argues that the missiles are not illegal per se but must be employed with due regard to the rule of proportionality. The writer favours a rule of proportionality approach.

108 Vanvoukos, A., Termination of Treaties in International Law 271–73 (Oxford, 1955), contends that the London Protocol is no longer binding, but his only authorities are the Doenitz decision and the views of O’Connell expressed earlier in this text.Google Scholar

109 Mallison, op. cit. supra note 25, at 117–23.

110 Talbott, J.E., “Weapons Development, War Planning and Policy: The U.S. Navy and the Submarine,” (1984) 37 N.W.C.R. 53–71.Google Scholar

111 McDougal, M.S. and Schlei, N.A., “The Hydrogen Bomb Tests in Perspective: Lawful Measures for Security,” (1955) 64 Yale L.J. 648–710,CrossRefGoogle Scholar adopt a similar approach in assessing the legitimacy of temporary appropriation of a portion of the high seas. Also see McDougal, M., “The Hydrogen Bomb Tests and the International Law of the Sea,” (1955) 49 Am. J. Int’l L. 356.CrossRefGoogle Scholar