The High Seas

Under the law as it exists today submarines and vessels and aircraft engaged in surveillance of submarines have an absolute and unfettered right to navigate under, on, and over the high seas. So far as the surface of the high seas and the water column beneath them are concerned, freedom of navigation is recognized in the Geneva Convention on the High Seas of 1958,1 which does no more than codify customary international law in this respect. Warships, including submarines, are declared in the Convention to have “complete immunity from the jurisdiction of any State other than the flag State.”2

The navigation of warships and merchant ships alike is regulated by the “Regulations for Preventing Collisions at Sea”[1] which are annexed to the Final Act of the International Conference on Safety of Life at Sea of 1960.[2] These rules of the road, to which the United States and the Soviet Union are both parties, are given effect through national legislation of the maritime powers.[3] Nothing in these Regulations precludes tracking of submarines. Indeed, the recent Agreement between the United States and the U.S.S.R. on the Prevention of Incidents on and over the Sea,[4] recognizes the legitimacy of such surveillance in the following provision:

Ships engaged in surveillance of other ships shall stay at a distance which avoids the risk of collision and also shall avoid executing maneuvers embarrassing or endangering the ships under surveillance. Except when required to maintain course and speed under the Rules of the Road, a surveillant shall take positive early action so as, in the exercise of good seamanship, not to embarrass or endanger ships under surveillance.[5]

Notwithstanding this general freedom of navigation, subject to the Rules of the Road, the Black Sea is closed to submarines of non-Black Sea Powers as a consequence of restrictions on transit through the Turkish Straits imposed by the Montreux Convention.[6] Soviet doctrine regards certain seas as “closed” or “regional” seas, to which submarines and other warships of non-littoral states should be denied entry.[7] The Black Sea, the Baltic Sea, the Sea of Okhotsk, and the Sea of Japan are the areas generally referred to. Butler suggests that the growing naval importance of the Soviet Union may account for diminished emphasis on the doctrine of the closed sea, which would offer other states an opportunity to exclude Soviet warships from areas of the high seas.[8]

There have from time to time been proposals for the demilitarization of particular oceans, such as the Mediterranean and the Caribbean. The most recent of these is the proposal of Sri Lanka (or Ceylon as it was then called) that the Indian Ocean be declared a “peace zone to be used exclusively for ‘Peaceful purposes.’”[9] This would involve the following measures concerning warships:

Warships and ships carrying war-like equipment will exercise the right of transit but may not stop other than for emergency reasons of a mechanical, technical or humanitarian character. The use of the sea-bed area by submarines, except for reasons of a mechanical, technical or humanitarian nature, is to be prohibited. There will be a prohibition on naval manoeuvres, naval intelligence operations and weapons tests in the area.

Opposition to the proposal led to a very much watered down resolution of the General Assembly,[10] which, while declaring the Indian Ocean as “a zone of peace,” did little more than call upon the great Powers to enter into negotiations with the littoral states of the Indian Ocean to ensure that warships and military aircraft not use the Indian Ocean for any use or threat of force against the littoral or states in violation of the Charter. The last has not heard of this proposal, which is again on the agenda of the present session of the General Assembly.

One ofthe principles adopted by the General Assembly in January 1971 to guide the work of the U.N. Sea-Bed Committee, declares that:

The area [of the sea-bed and ocean floor and the subsoil thereof] shall be reserved exclusively for peaceful purposes without prejudice to any measures which have been or may be agreed upon in the context of international negotiations undertaken in the field of disarmament and which may be applicable to a broader area. One or more international agreements shall be concluded as soon as possible in order to implement effectively this principle and to constitute a step towards the exclusion ofthe sea-bed, the ocean floor and the subsoil thereof from the arms race.[11]

By that time the Treaty on the Prohibition of Emplacement of Nuclear Weapons and Other Weapons of Mass Destruction on the Sea-Bed and the Ocean Floor and in the Subsoil Thereof[12] had already been negotiated; it was shortly thereafter opened for signature and signed by sixty-two states.[13] The matter of the “Peaceful Uses of the Ocean Space: Zones of Peace and Security” is one of the many items on the agenda of the diplomatic conference on the law of the sea convening in 1973. At the present time, the proposed texts dealing with this issue[14] are little more than reiterations of the principle quoted above.

But the area of what is universally accepted as high seas has been steadily diminished by the encroaching claims of coastal states to sovereignty or jurisdiction over portions of the seas.

  • [1] Approved by the International Conference on Safety of Life at Sea, London, May 17 to June 17,1960, 16 U.S.T. 794, T.I.A.S. No. 5813.
  • [2] Final Act of the International Conference on Safety of Life at Sea, signed in London, June 17,1960, published for Intergovernmental Maritime Consultative Organization (1960).
  • [3] In the case of the United States, Pub. L. 88—131, 77 Stat. 194, 33 U.S.C. §§ 1051 ff.
  • [4] Signed at Moscow, May 25, 1972, T.I.A.S. No. 7379.
  • [5] Art. III, para. 4.
  • [6] Convention concerning the Regime of the Straits, signed at Montreux, July 20, 1936, arts.10—18, 173 L.N.T.S. 213. Special provisions are made with respect to the submarines of Black SeaPowers (art. 12). In time of war in which Turkey is not a belligerent, warships enjoy completefreedom of navigation through the Straits (art. 19). The matter is left to the discretion of Turkeywhen that country is a belligerent (art. 20). See F. A. Vali, The Turkish Straits and NATO 46—47(1972).
  • [7] W. E. Butler, The Soviet Union and the Law of the Sea 116—133 (1971).
  • [8] Id. at 132-133.
  • [9] Letter from the Permanent Representative of Ceylon to the Secretary-General, Oct. 1, 1971,U.N. Doc. A/8492 (1971).
  • [10] Gen. Ass. Res. 2832 (XXVI), Declaration of the Indian Ocean as a zone of peace, U.N. Doc.A/RES/2832 (XXVI) (1972).
  • [11] Gen. Ass. Res. 2749 (XXV), Declaration of Principles Governing the Sea-Bed and the OceanFloor, and the Subsoil thereof, beyond the Limits of National Jurisdiction, U.N. Doc. A/RES/2749(XXV) (1971).
  • [12] 63 Dep’t State Bull. 365 (1970); annex to Gen. Ass. Res. 2660 (XXV), U.N. Doc. A/RES/2660(XXV) (1970).
  • [13] 64 Dep’t State Bull. 288 (1971).
  • [14] See Comparative Table of Draft Treaties, Working Papers and Draft Articles prepared by theSecretariat, p. 30, U.N. Doc. A/AC.138/L.10 (1970); and Draft Report of Sub-Committee I, Aug.11, 1972, p. 13, U.N. Doc. A/AC.138/SC.I/L. 18/Add. 3 (1972). The latter records an additionalproposal prohibiting the activities of all nuclear submarines in the Area and in the sea-bed of otherStates.
 
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