Consequences for Submarines and ASW
Suggestions that have been made with respect to the establishment ofsanctuaries in which missile-launching submarines might conceal themselves contemplate two basic types of sanctuaries—those that might be established in the high seas and those that might be established in the territorial seas or coastal zones of the United States, the Soviet Union, or a third state.
The present international order of the oceans is such that it would be extremely difficult to set up in time of peace sanctuaries in the high seas to which only missilelaunching submarines of the Soviet Union or the United States might be admitted and from which all other warships and surveillance vessels, including those of third states, would be excluded.
It is true that individual states have in the past laid preemptive claims to the use of the high seas for a particular military purpose to the exclusion of other activities by other states. Areas of the sea have been appropriated for naval maneuvers and weapons testing, for example. The recovery of space missions has also been accomplished in areas from which other shipping has been warned off. However, these uses of the ocean have two significant characteristics which make them doubtful precedents for the establishment of permanent sanctuaries in the high seas. One is that they have been temporary. The other is that such a purported temporary appropriation of the high seas gives the state concerned no authority to exercise jurisdiction over the vessels of other states. A state may, of course, exclude vessels flying the flag of that state, and it may punish its nationals who refuse to respect the regulations that it has imposed. But a state establishing such a zone may not exercise jurisdiction over a foreign flag vessel, whether merchant ship or warship, except with the permission of the country whose nationality the ship possesses. The immunity of warships and other state-owned vessels used on noncommercial service is particularly strongly established in international law. It is for this reason that the presence of foreign vessels in nuclear test areas in the high seas, often deliberately sailed there by pacifist groups, has been a source of embarrassment to the states conducting those tests.
The preemptive use by a state on a permanent basis of extensive areas of the high seas as a sanctuary, under an international arrangement concluded by the United States (perhaps joined by the United Kingdom) and the Soviet Union would be looked upon as an infringement of the freedom of the seas. Third states would not feel themselves obliged to respect such an area.
If, on the other hand, sanctuaries were to be set up bilaterally by the United States and the Soviet Union and there were to be no attempts to exclude the vessels of third states, confusion and cheating would be the probable consequences. It would be difficult, for example, for the state whose sanctuary it might be to determine whether a hunter-killer submarine or an ASW vessel belonged to the other party to the arrangement or to a third state. In the former event, there would be a violation of the agreement through a penetration of the sanctuary by the warship of the other party, but in the latter event there would of course be no violation of the agreement.
The possibility of entry by vessels of third states, in the exercise of their right of free navigation, would permit cheating. Secret arrangements could be made for third states, not parties to the agreement, to conduct surveillance. Surveillance vessels of a party could be transferred to a third state or be surreptitiously registered under the flag of that state. This sort of arrangement might be forestalled through a prohibition on transfer of ASW vessels and equipment to third states, like the prohibition of transfer of ABM systems or their components in the Treaty between the United States and the Soviet Union on the Limitation of Anti-Ballistic Missile Systems.
If a sanctuary were to be established, it could be protected against entry and surveillance by the vessels of a particular third state only by that state’s becoming a party to the agreement establishing it or by the consent of that state otherwise given.
The establishment of a sanctuary for Soviet ballistic missile-carrying submarines off the coast of the Soviet Union and a sanctuary for United States ballistic missile-carrying submarines off the coast of the United States is the other major possibility that has been raised. If this were to be accomplished through a claim to a 200-mile territorial sea, a plausible legal basis might be laid for excluding foreign warships, including submarines, on the ground that, although warships have a right of innocent passage, areas of the territorial sea may be closed when that action is necessary for national security. However, a claim to a 200-mile territorial sea or defensive sea area or exclusive economic zone from which foreign warships might be excluded would run completely counter to the declared interest of the U.S.S.R. and of the United States to limit the maximum width of the territorial sea to twelve miles in order to secure the widest possible measure of freedom of navigation for warships and merchant ships. If the two states agreed to honor such coastal sanctuaries only in their mutual relations and not to exclude the vessels of third states, the same problems regarding the presence of surface ships and submarines would exist as in the case of high seas sanctuaries.
Such coastal sanctuaries might in theory be established in a 200-mile territorial sea or defensive zone off the coast of an allied third state. Thus, still speaking in theoretical terms, the United States, the Soviet Union, and the United Kingdom might agree to establish a sanctuary for United States ballistic missile-carrying submarines in a 200-mile zone off the coast of the United Kingdom, with the Soviet Union accorded a similar right in a coastal zone off Cuba. In such a case, much the same problems of law and policy would be created as might arise in the case of sanctuaries in the coastal areas of the two major nuclear powers.
Account must also be taken of the fact that some sanctuaries may come to exist de facto in the territorial seas or internal waters of some third states. Only states with advanced capabilities to detect submarines can assure themselves that foreign submarines are not violating their territorial sea.60a It is to facilitate the keeping of a watchful eye on submarines by the coastal state that they are required to navigate on the surface if they are admitted to the territorial sea. For the most part those very states that lack the ability to police their territorial seas and economic zones have been making the largest claims to what had hitherto been regarded as the high seas. Under the traditional rules of neutrality, they come under a positive obligation in time of war to assure that their waters are not used as a base for hostilities. If coastal states do not or cannot control their territorial seas, then a foreign state may cheat by sending submarines into those areas in violation of paper restrictions on entry. Other states may follow suit by sending in their own submarines. Surface and air detection activities, which are much more visible, may be more readily detected by the coastal state. The resulting situation may be that the coastal state is unable to keep out foreign submarines but is able to exclude surface and air activities directed to the surveillance of those submarines. A limited degree of sanctuary may thus
60a Witness the difficulties encountered in November 1972 by the Norwegian Government in determining the character of an unidentified object in the Sogne Fjord. After two weeks, the Norwegian Government announced that the object was a submarine. N. Y. Times, Nov. 26, 1972, p. 3, col. 1.
result, at least until the coastal state is given the means of detecting the submarines or actual assistance in doing so.
-  M.S. McDougal and N. A. Schlei, The Hydrogen Bomb Tests in Perspective: Lawful Measuresfor Security, 64 Yale L. J. 648 (1955); M.S. McDougal and W.T. Burke, The Public Order of theOceans 785—789 (1962). McDougal and Burke allude to the rejection at the Geneva Law of the SeaConference of 1958 of a Soviet proposal that the High Seas Convention contain a provision that “Nonaval or air ranges or other combat training areas limiting freedom ofnavigation may be established onthe high seas near foreign coasts or on international routes.” The Public Order of the Oceans at 786.
-  Convention on the High Seas, done at Geneva, April 29, 1958, arts. 2, 11, and 22, 13 U.S.T.2312, T.I.A.S. No. 5200, 450 U.N.T.S. 82.
-  Geneva High Seas Convention, arts. 8 and 9.
-  As guaranteed by Article 2 of the Geneva High Seas Convention.
-  Geneva High Seas Convention, art. 5, which in effect legitimates the use of flags of convenience.
-  Done at Moscow, May 26, 1972, Art. IX, 66 Dep’t State Bull. 918 (1972).