Table of Contents:

Contiguous zone

Whilst not all states claim a contiguous zone some states, such as China, India, Iran, and North Korea, also claim that their contiguous zone is a security zone. The United States challenges these claims as more than article 33 of the 1982 Convention pennits in regard to regulating fiscal, immigration, sanitation and customs matters.[1] The considerations for the use of force and the freedom of navigation however are little different to that for the EEZ. Whilst the contiguous zone is closer to the coast, it is still within international waters. High seas freedoms apply subject to having due regard to the sovereign rights of the coastal state within the contiguous zone.

High seas

Article 86 of the 1982 Convention effectively defines the high seas as:

all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State.

National self-defence

Even if the 1982 Convention makes clear that no state may subject the high seas to its sovereignty, the inherent right of national self-defence against armed attack, recognised in article 51 of the UN Charter, is not limited by the maritime zones. The preamble to the 1982 Convention in any event makes clear that it is meant to implement the Purposes and Principles of the UN Charter, article 87 states that the ‘freedom of the high seas is exercised under the conditions laid down by this Convention and other rules of international law’, and article 301 effectively restates article 2(4) of the UN Charter. As stated in the Enrica Lexie Award:

Thus, under the Charter of the United Nations, the use of force is not completely prohibited if it is consistent with the Charter and with other rules of international law. This means that pursuant to Article 301 of the Convention, the use of force is not completely excluded on the high seas.[2]

An exercise of national self-defence on the high seas can be a means of protecting a state’s existing sovereignty rather than extending it. A coastal state would need, however, to justify the use of force in a place that is very likely to be more than 200 nautical miles from its coastline. As the high seas are that part of the seas beyond the exclusive economic zone, there is no other basis for a coastal state to use force against foreign warships on the high seas.

Asserting navigation

Conversely, could a warship or military aircraft use force to assert navigation on the high seas? This would most likely take the form of an action in self-defence. There should be no objection to clearing mines or other obstructions impeding navigation, as the high seas are not subject to the sovereignty of any state. Further, the laying of indiscriminate mines would be contrary to the obligation on states to have due regard to other users of the high seas under article 87 and the status of the high seas as being reserved for peaceful purposes under article 88 as well as the customary international law prohibition on laying mines which interfere with neutral shipping, as discussed in Chapter 1. A warship or task group should be able to defend itself anywhere on the high seas as an exercise of unit self-defence, as discussed in Chapter 2. If it is necessary to use lethal levels of force just in order to exercise the freedom of navigation, however, then it is likely that the situation has reached the thr eshold for the application of the law of aimed conflict. Using lethal force against vessels, aircraft, shore bases, offshore platforms or even submerged acoustic devices in order to prevent further attacks would completely change the legal basis for using force, as discussed in Chapter 3.

Escort

The freedom of navigation and overflight on the high seas means that there should be no impediment to the conduct of escort operations on the high seas. Outside of the Falklands/Malvinas War of 1982, which was subject to the law of naval warfare,[3] there have been escort operations to protect merchant shipping in the Gulf, as discussed in the Introduction and Chapter 2, and also from piracy off the coast of Somalia between 2008 and 2012 The limitations here are those already discussed in respect of the EEZ. Escorts are to have due regard to other users of the high seas and to use force only where it is necessary in self-defence and only to the extent that it is necessary and proportional.

The Fisheries Jurisdiction Case (UK v Iceland)

The Cod Wars between the United Kingdom and Iceland are a very good example of escort operations on the high seas. Iceland progressively extended its fisheries zone to 12 nautical miles in 1958, 50 nautical miles in 1972 and then 200 nautical miles in 1975. In each extension British, but also West German, fishing vessels were denied access to fishing grounds which they had fished for centuries. Three separate ‘Cod Wars’ then ensued upon each extension of the Icelandic fisheries zone. They involved British warships escorting British trawlers to prevent Icelandic fisheries patrol vessels apprehending the trawlers or driving them out of the zone. In the second and third Cod Wars in the 1970s Iceland actually deployed cutting equipment in order to sever the trawl from the trawler. This involved the patrol vessels passing close behind the trawlers with the towed cutting equipment.[4] Royal Nary frigates engaged hi close quarters manoeuvring to block, shoulder or ram the Icelandic patrol vessels so as to prevent them cutting the British trawls. There were casualties, and both Icelandic and British vessels suffered damage sufficient in some cases to make them unseaworthy. Television reporting at the time clearly shows a British warship informing an Icelandic fisheries patrol vessel that it had authority to return fire should the Icelandic vessel fire upon a British trawler.

It would have been helpful if the International Court of Justice case had been able to address these use of force issues. It did not as the United Kingdom withdrew this aspect of its case as part of its negotiations with Iceland. The case therefore focused on the legality of Iceland’s fisheries zone, rather than its enforcement of it. Ironically, this aspect of the controversy was soon overtaken by the advent of the exclusive economic zone in the 1982 Convention. There is therefore no authoritative legal treatment of the use of force issues involved. British use of force did not assist the outcome of the dispute, which clearly favoured Iceland. The sense of a stronger state using force against a weaker state seemed to make the Icelanders determined enough, in the midst of the Cold War, to threaten to withdraw from NATO and deal with the Soviets. This led Britain to compromise. Whilst therefore, arguably, British use of force may not have been successfill in achieving its ami, there is still the question of whether it was lawfill.

There may have been more case law on the use of force at sea since 1975 but the principles have remained essentially those discussed in this and previous chapters. Given the position that its trawlers were trying to exercise the freedom of fishing on the high seas and were being unlawfully prevented from doing so, it was lawfill for the United Kingdom to protect its trawlers. The Icelandic fisheries patrol vessels were sovereign immune as either warships or law enforcement vessels. It would not have been lawfill for the British warships to board or apprehend them. Boarding by boat often did not appear to be practically feasible in the sea conditions for either party anyway. The threat from the Icelandic vessels was not lethal so it would not have been lawful to use lethal force in response. Where Icelandic vessels were threatening to fire at British trawlers, however, it would have been proportionate for the British warships to return that fire in order to make the Icelanders desist, hi each case, nonetheless, it would not have been lawful to endanger life except to protect life, so the firing should only have been warning or disabling, not destructive. Close quarters manoeuvring at speed resulting in collision, whether to ram or shoulder, was clearly dangerous in the prevailing sea conditions. It would only have been lawfill for the British warships to have done so to prevent Icelandic close quarters manoeuvring to cut the trawls, given that this action was similarly dangerous. Otherwise, British warships would have been limited to interposing themselves between the Icelandic fisheries patrol vessels and the British trawlers. Doing more than this could only have been justified by the level of threat posed.[5]

The very public, and indeed televised, nature of this dispute, together with the relative restraint shown by both states, makes it a usefill illustration of the limits of the use of force in situations at sea where diplomacy is not yet effective, but there is no inclination to go to war. This leads to the final point on the obligations of restraint in areas at sea where there are disputed claims.

  • [1] Ibid, nil 30-32 2 Lose arts 33 and 58 3 See San Remo Manual rule 10; Klein, nil, 273-274; Rob McLaughlin, ‘Does the Law of Naval Warfare Apply to NIACs at Sea? Well, Sort of. . .’ in Dale Stephens and Matthew Stubbs (eds), The Law of Naval Warfare (Lexis Nexis, 2019) 321; see also See Dieter Fleck, ‘Rules of Engagement for Mantime Forces and the Limitation of the Use of Force Under the UN Charter’ (1988) 31 German Yearbook of International Law 165, 170-172 on the USS Pueblo seizure by North Korea on the high seas in 1968 and the Egyptian sinking of INS Eilat on the high seas in 1967 4 Preamble to the 1082 Convention
  • [2] 302, see n 15 regarding the facts. 2 By way of example, nuclear deterrence is premised on the risk of a retaliatory nuclear stake from submarines located in the furthest reaches of the oceans, Stephan Friihling, 'N-subs and Strategic Stability in Indo-Pacific’, Australian Naval Institute (online), 10 June 2019 https://navalinstitute.com.au/n-subs-and-sfrategic-stability-in-indo-pacificZ7utm_ source=mailpoet&utm_medium=email&utm_campaign=ani-e-newsletter-no-269-2-feb-2020 119 3 See San Remo Manual rule 92; see Ian Brownlie, International Law and the Use of Force by States (Oxford, 1963) 305-308, 367-368; D P. O’Connell (edited by LA. Shearer) The International Law of the Sea; Volume II (Clarendon, Oxford, 1984) 803-808 4 Article 88 should not, however, be taken as prohibiting military activities on the high seas, other than acts of aggression noting art 301, see Myron Nordquist, Satya Nandan and Shabtai Rosenne (eds), United Nations Convention on the Law of the Sea: Commentary Online, ‘Article 87: Freedom ofthe High Seas’, 72,85, ‘Article 88: Reservation of the High Seas for Peacefill Puiposes’, 87, 89-91 and ‘Article 301: Peaceful Uses of the Seas’, 153; Klein, nil, 48-54, 260-261
  • [3] San Remo Manual 182,197,223 2 International Chamber of Commerce, International Maritime Bureau, Piracy and Robbery Against Ships Report, 01 January - 30 September 2017,23 3 Fisheries Jurisdiction Case (Merits) (United Kingdom v Iceland), 25 July 1974,12. 4 Ibid. 15 5 Sverrir Steinsson, ‘The Cod Wars: a Re-analysis’ (2016) 25(2) European Security 256, 258-259; Gunther Hellman and Benjamin Herborth 'Fishing in the Mild West: Democratic Peace and Militarised Interstate Disputes in the Transatlantic Community’ (2008) 34(3) Review of International Studies 481,486-487 6 Fisheries Jurisdiction Case 14 7 Ibid. 50 8 1144 9 Ibid.
  • [4] Ibid. 2 www.youtube.com/watch?v=hvOKdd3Mqv8;www.youtube.com/watch?v=pI8m-aiA_j4; www.youtube.com/watch7vM3kxy8MzBxLk; www. youtube. com/watch?v=nrSekD901Zs 3 Hellman and Herborth, n 45 4 1150 5 Ibid. 6 Fisheries Jurisdiction Case 7 7 Ibid. 8 n45
  • [5] See Fleck, n 35, 169 2 Nicaragua Case 135 3 Noting ait 10 of Hague Convention XIII Concerning the Rights and Duties of Neutral Powers in Naval War (signed 18 October 1907)205 CTS (1907) 395 (Fr.) (entered into force 26
 
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