Military uses of the Sea (Natalino Ronzitti)

MILITARY USES OF THE SEA

Natalino Ronzitti

18.1 Introduction

The oceans offer several opportunities for military users, ranging from hard security to soft security. The former involves navies’ mobility, capability of self-defence, and exercise of sea power for a number of reasons, including military action or simply showing the flag to assert a claim, countering other States’ excessive claims and the use of the sea in wartime. The latter is related to maintaining law and order in the oceans or to implement coastal States’ jurisdiction, such as the fight against illegal immigration, drug trafficking and vindicating coastal States laws beyond the territorial sea. Other naval activities, such as the fight against terrorism and piracy, fall between the two main uses of the sea. The present chapter is devoted only to ‘hard security’. Soft security is dealt elsewhere in this volume as well as those activities that fall between, like terrorism and piracy. This does not mean that some reference is to be made to them, mainly when their relevance becomes a topic for hard security.

18.2 Military Uses

18.2.1Warships: Definition

Oceans may be used for multiple purposes, such as leisure, fishing, transportation, and commerce. Military purposes are one of the possible uses of the oceans. The main military users are navies. Hence the importance to define warships and their status.

The United Nations Convention on the Law of the Sea 1982 (UNCLOS)¹ restates in its Article 29 the definition of warship given by Article 8, para. 2 of the Convention on the High Seas 1958 (HSC).² According to the definition

warship means a ship belonging to the armed forces of a State bearing the external marks distinguishing such ships of its nationality, under the command of an officer duly commissioned by the government of the State and whose name appears in the appropriate service list or its equivalent, and manned by a crew which is under regular armed forces discipline.

There is another category of vessels which is not defined by the UNCLOS even though their regime is similar to that of warships in many respects: naval auxiliaries and other government ships operated for non-commercial purposes. In the commentary of the United Nations Convention on Jurisdictional Immunities of States and Their Property 2004³, the following examples are given under Article 16, para. 2: police patrol boats, custom inspection boats, hospital ships, oceanographic ships, training vessels and dredgers, owned and operated by a State and used or intended for use in government non-commercial service.

A commercial vessel may be transformed into a warship. The pertinent rules are embodied in the Hague Convention No. VII of 1907 relating to the conversion of merchant ships into warships. For this purpose, the merchant ship should be placed under direct authority, control, and responsibility of the flag State, bear the external marks which distinguish the warships of the nationality of the flag State, and be under a commander in the service of the State and duly commissioned. The crew must be subject to military discipline and the converted warship, which should appear in the list of warships, must observe in its operation the laws and customs of war. The law dictates a procedure which has been drafted for wartime. The rules of the Hague Convention may in principle be applied also in peacetime, even though it is extremely improbable that States would have recourse to the conversion of merchant ships given the contemporary complexity of warships.

Sunken warships are no longer considered to be warships since they are lacking the element of ‘flottabilité’ (navigability). However, they remain State property unless abandoned, and are still entitled to sovereign immunity.⁴

18.2.2 Innocent passage through the territorial sea

Both the Convention on the Territorial Sea and the Contiguous Zone 1958 (Territorial Sea Convention)⁵ and the UNCLOS allow the innocent passage through the territorial sea but do not specify whether warships may engage the passage. However since both Conventions contain rules on measures which may be taken against warships violating the rules on passage, they will be deprived by their purposes if the passage is denied: the Territorial Sea Convention embodies Article 23 applicable to warships and Articles 30–31 of UNCLOS dictate rules for warships. It is controversial whether the passage of warships is made conditional upon the consent of the coastal State, or only previous notification is required. The existence of a right of passage of warships according to the customary international law is likewise controversial. The point was not clarified by the International Court of Justice (ICJ) in its judgment on the Corfu Channel case referred below, since the Court dictum refers only to the right of passage through an international strait but does not consider the right of passage through territorial waters.

Third world countries continue to assert that passage is subject to the consent or previous notification of the coastal State. A number of States have changed their position. In this connection the practice of the Union of Soviet Socialist Republics (USSR) is of paramount importance. At the time of ratification of the 1958 Territorial Sea Convention, the Soviet Union and a number of socialist countries entered a reservation according to which the transit of warships was made conditional upon the consent of the coastal State. However on 23 September 1989 the Soviet Union and United States (US) signed a common declaration stating that all ships, including warships, enjoy the right of innocent passage through territorial waters in time of peace.⁶ Since then the right of passage through territorial sea without prior notification/authorization has gained currency in State practice. This right is enjoyed by all warships without any distinction as to armament and means of propulsion. Submarines are required to navigate on the surface and to show their State flag. According to a number of authorities a norm of customary international law allowing the passage of warships through territorial waters is already in existence or at least in progress. The number of States subjecting the passage to their consent or prior notification is being reduced.

18.2.3Innocent passage through international straits

Article 16 (4) of the 1958 Territorial Sea Convention grants a right of passage in straits used for international navigation connecting two parts of open sea or one part of the high seas and the territorial sea of a foreign State. Passage cannot be suspended. Overflight is not allowed without the consent of the riparian State/States, unless specifically granted as stated by the 1979 Peace treaty between Egypt and Israel which preserves the right of navigation for all flags through the strait of Tiran and the Gulf of Aqaba, the waterway allowing the entry into the Israeli port of Eilat.

Freedom of passage is enjoyed both by merchant vessels and warships, and this rule—as far as straits connecting two parts of open seas are concerned—is a codification of customary international law, as can be inferred from the Corfu Channel Case, where the Court clearly stated that straits used for international navigation are open both to merchant and military vessels.⁷

The UNCLOS, while introducing the regime of transit passage for straits connecting two parts of the open seas or two Exclusive Economic Zones (EEZ(s)) or an EEZ and the high seas, maintains the regime of innocent passage with no suspension for international straits connecting the territorial sea and the open seas or the territorial sea and the EEZ (Art. 45).

18.2.4Transit passage through international straits and archipelagic waters

The UNCLOS is very innovative as far as the passage through international straits connecting two parts of open seas or two EEZs or an EEZ with the open seas, since it grants transit passage (Art. 38).

The transit passage allows more navigational rights than the innocent passage since it allows: a) a unimpeded right of transit for both civilian ships and warships; b) the right of overflying the straits with civilian or military aircraft; c) the right of submarines to a submerged passage along all the waters of the strait. Ships and aircraft in transit should refrain from any threat or use of force and in general from any activity not directly connected with the normal mode of operation of ships and aircraft. Normal mode of operation for warships means that they may transit singularly or in squadron. Aircraft carriers are allowed to transit and aircraft on board may take off and deck during the transit.⁸

The right of transit passage was inserted because of the necessity of mobility of fleets and was promoted by the then superpowers. It serves their interest and it is recognized together with other military navigational rights by the US, even though they are not party to UNCLOS.

The Strait of Gibraltar is subject to the law of transit passage, which means that every vessel, including warships, has an unimpeded right of transit, and submarines may transit the strait submerged. There is also a right of overflight as proved during the US air bombing of Libya on 15 April 1986. The US aircraft coming from British bases overflew the Strait of Gibraltar since their continental allies denied them transit right over their territories.

The two States bordering the Strait of Gibraltar, Spain and Morocco, tried to resist the stipulation of transit passage at the III Law of the Sea Conference. However, subsequent practice shows that the two States acquiesced in the right of transit passage, including overflight, as proven by the declaration issued at the time of the overflight of US aircraft in 1986.⁹

As far as the Strait of Hormuz is concerned, the only waterway allowing the entry in the Persian Gulf, it should be subject to the regime of transit passage. However, one of the States bordering the Strait, Iran, is not party to UNCLOS and does not recognize the regime of transit passage as belonging to customary international law. Consequently Iran claims that its territorial waters lying in the Strait are only subject to the regime of innocent passage and warships are admitted to passage only after their duly notification to the Iranian authorities. In time of crisis Iran threatened to close the Strait or at least the part belonging to its territorial waters. During the Iran–Iraq war (1980–1988) Iran firstly declared that it would leave the Strait open to navigation. Subsequently it changed its policy and declared the part lying within its territorial waters as a war zone, obliging neutral States to navigate along the coastal belt lying under Oman’s sovereignty. Threats by Iran to close the Strait of Hormuz are often repeated but not implemented.

18.2.5Straits under a long-standing regime: The Dardanelles and other straits

Article 35c of UNCLOS preserves the navigation through straits under a long-standing regime regulated by a convention specifically devoted to the strait. The most celebrated example is the 1936 Montreux Convention regulating the passage through the Bosphorus and Dardanelles.¹⁰ The Convention distinguishes between commercial shipping and warships and between peacetime and wartime.

In time of peace all private flags enjoy freedom of navigation through the straits. They may be subject to sanitary control and to the payment of a fee.

As far as warships are concerned it is necessary to distinguish ships belonging to non-Black Sea States and ships belonging to Black Sea States.

The first category of ships may passage through the Turkish straits provided that they are light surface vessels. Submarines are thus excluded. Ships may be subject to the sanitary control of the Turkish authorities and to the payment of a fee. Moreover the total tonnage of all ‘foreign’ warships (ie belonging to States other than Turkey) passaging the Straits cannot exceed 15,000 tons and their number cannot exceed nine vessels. Previous notification is required.

The second category enjoy a more favourable treatment. Black Sea States have the right to passage through the Straits with warships over 15,000 tons provided they transit one at time. Submarines may transit provided they have been built or purchased outside the Black Sea and need to reach a State naval facility inside the Black Sea or need to exit from the Black Sea in order to be repaired. In both cases submarines may transit one at a time, but should emerge and transit during daytime. Black Sea States should notify the transit to the Turkish authorities. There is another limitation: the total tonnage of foreign warships operating in the Black Sea cannot exceed 45,000 tons.

There is no mention of aircraft carriers in the Montreux Convention. The majority of writers, however, are of opinion that the passage of this kind of ship is not allowed. In 1976 Turkey allowed the passage of the Soviet aircraft carrier Kiev capable of transporting 25–30 aircraft with vertical take-off and the same number of helicopters. In notifying the passage the Soviet Union referred to the Kiev as a cruiser equipped for anti-submarine warfare.

During the Georgia conflict (2008) Turkey did not authorize the passage of the US hospital ships Mercy and Comfort, the total tonnage of which amounted to 140,000 tons.

In time of war if Turkey is neutral, non-belligerent powers enjoy the freedom to use the straits in a manner equal to time of peace. Belligerent powers are forbidden to pass through the straits except in the case of an action undertaken under the League of Nations (which nowadays may be read United Nations) or a pact of mutual defence to which Turkey is party (eg the North Atlantic Treaty Organization (NATO)). If Turkey is at war the passage is left entirely to the discretion of Turkey.

18.2.6The exclusive economic zone

The rights of navigation and overflight both for commercial/military shipping and civil/military aircraft are guaranteed by Article 58, para. 1, of UNCLOS which recalls Article 87 where those rights are specifically mentioned as belonging to the freedom of the high seas. Problems are raised by military exercises carried out in a foreign EEZ. During the negotiation of UNCLOS a number of States tabled a proposal according to which military exercises in the EEZ should be authorized by the coastal State. However the proposal was not accepted. Article 19, para. 2, specifically forbids military exercises during the passage through the territorial sea. Should negotiating States prohibit military exercises within a foreign EEZ, they should have clearly affirmed the prohibition. One may conclude that military exercises are a manifestation of the freedom of high seas to which Article 58 refers.

At the moment of UNCLOS ratification a number of States, mainly third world countries, have issued a declaration stating that foreign military exercises are forbidden in their EEZ. These declarations were followed by the insertion of the prohibition in the legislation on EEZ.¹¹

The above claims were met by opposite declarations by Western countries made upon signature/ratification of UNCLOS or autonomously formulated in order to avoid any implied recognition of the claim.¹²

18.2.7The continental shelf

The continental shelf can be used for military purposes such as the emplacement of dormant mines or more innocent listening posts for submarine tracking. Third world countries are usually opposed to such uses of their continental shelves by foreign States and claim that the emplacement of such devices hampers their sovereign right to exploit the natural resources of the seabed. Even more innocent activities as charting and mapping raise their protests. There are no specific provisions in UNCLOS. On the one hand, Article 77 grants sovereign rights to the coastal State for exploring and exploiting continental shelf natural resources; on the other Articles 79 and 80 deal, respectively, with cable and pipelines and artificial islands, installations, and structures. They are civilian devices which are not comparable with military assets. The point is not explicitly regulated by UNCLOS and a possible conclusion is that military activities on the continental shelf fall within the freedom of the sea and are permitted in so far as they do not interfere with the right of exploration and exploitation granted to the coastal State. Extreme examples are always possible. For instance, building an artificial island to serve as a platform for military purposes, or laying an extensive minefield attached to the seabed compromising the capacity of the coastal State to exploit and explore its continental shelf, and constituting a danger for the preservation of marine environment would certainly be forbidden under Article 80.

During the Kosovo war in 1999, NATO aircraft still carrying weapons on board after having accomplished their mission discharged them in the Adriatic before landing at the Italian base in Aviano. The practice of ‘jettison areas’ raised protests from Croatia, since the weapons were discharged on its continental shelf and caused casualties among Italian fishermen. However, neither NATO nor the US accepted any responsibility. The weapons were cleared away by a NATO squadron, which claimed that the sweeping operation was a mere exercise and was not the result of any duty of reparation for an illegal act.¹³ It is open to inquiry, however, whether NATO’s attitude is in conformity with the general obligation, stemming from customary international law, to pay due regard to the marine environment, even in case of belligerency.¹⁴

18.2.8The high seas

The freedom of the high seas includes a number of rights which are exemplified by Article 87 of UNCLOS. The list therein stated is not conclusive. Freedom of navigation and overflight are obviously the most important as far as military uses of the seas are concerned. Problems arise when the content of these freedoms should be spelled out. They are qualified by the obligation to take due account of the interests of the other States exercising the same freedoms, and by the rights conferred by the UNCLOS provisions on the Area (ie the seabed and ocean floor beyond the national jurisdiction).

Article 87 lists two liberties which may have a military significance among the freedoms of the high seas: the laying of cables and pipelines and the construction of artificial islands and other installations. The former should be installed taking into account the provisions on the continental shelf if they lie on that part of sea and the consent of the coastal State should be sought for the delineation of their course (Art. 79); the latter should be in line with the provisions of the EEZ, which reserves any emplacement to the coastal State (Art. 60), and with the relevant provisions of international law. In this connection Article 89 should be considered and the installation of artificial islands should not become a means for claims of sovereignty of the part of the high seas where they are floating.

Warships on the high seas enjoy a complete immunity and are only subject to the jurisdiction of the flag State (Art. 95). They cannot be boarded and are not subject to any exception that the law foresees for private shipping. For instance, by definition, a warship cannot commit an act of piracy unless the crew has mutinied (Art. 102). Article 221 on the prevention of pollution for accidents on the high seas cannot be applied to warships.

Usually the relevant law relating to interference with foreign warships on the high seas should be found in the law of self-defence, naval interdiction and other forceful measures which may be lawfully exerted in time of peace. All these issues will be considered below.

18.3 Naval Interdiction: Blockade and Quarantine

The blockade is a measure of warfare which may be employed during an international armed conflict. Although no longer as frequent as during the 18th and 19th centuries, it has not become totally obsolete. Modern examples are the controversial blockade by the United States of the port of Haiphong (1972) during the Vietnam War, the blockade by Israel of the Lebanon coast in 2006 and the blockade by Israel of the Gaza strip, which is still in existence at the time of writing. During the NATO intervention against the Federal Republic of Yugoslavia in 1999, the United States proposed the blockade of the port of Bar, but the proposal was not endorsed by France and Italy as they deemed it required authorization by the UN Security Council (UNSC). Blockade is often an example of asymmetric warfare in that it is not easy to enforce a blockade against a powerful adversary, with the blockading force running the risk of being exposed to missile fire from the coastal State. Under the UNSC Resolution 1973 (2011) States were allowed to inspect vessels to impede weapons delivery to Libya. However the NATO fleet cruising off the Libyan coast did not establish a blockade in a proper meaning since it was only tasked to visit and search vessels suspected to transport military equipment.

According to the 1909 London Declaration, a blockade, in order to be lawful, has to be effective (ie maintained by a naval force able to impede the entry or exit of vessels via the blockaded coast); non-discriminatory (ie enforced against all flags, even those belonging to the blockading State); and duly notified by diplomatic means or by the commander of the blockading force, since all States should know the existence of the blockade. Merchant vessels in breach of blockade may be captured and adjudicated as a prize.

Blockades aimed at starving the civilian population of the blockaded coast are forbidden. As can be implied from both Article 23 IV Geneva Convention and Article 70 Additional Protocol I, the effectiveness of the blockade is not frustrated by humanitarian actions. For instance, during the Israeli blockade of Lebanon (2006), Italy was permitted to evacuate its own and other countries’ nationals. Humanitarian action requires the consent of the blockading State.

If terrorists act at the order of the coastal State or are part of its governmental structure, the blockade is a lawful means for implementing an antiterrorist strategy, since it takes place within an international armed conflict.

The problem is whether a blockade may be employed against a non-State actor controlling a coastal territory. The precedents are related to insurgents’ communities and involve the relations between the constituted government and insurgents as well as those between the constituted government and third State. The most quoted precedent is that of the blockade of Confederate States by the United States during the American civil war (1861–1865). Modern examples include the blockade of Biafra’s ports by the Federal Government of Nigeria (1967). Usually it is admitted that the constituted government may blockade the ports in the hands of insurgents, but this implies a recognition of belligerency.

The very controversial example is the blockade of the Gaza strip by the Israeli navy in order to prevent the Palestinian Authority and now Hamas from reaching the open sea. On 3 January 2009 Israel proclaimed a formal blockade off the Gaza waters at 50 miles from the coast. There are precedents of blockade of ports controlled by insurgents, but the blockade of coasts controlled by non-State entities regarded by the blockading State as a terrorist organization is new. In this case the blockading State can invoke the right of self-defence, but the problem is that the blockade generally affects the rights of third countries since it is established against all flags. The Israeli blockade was challenged by a flotilla of six ships organized by a number of NGOs. On 31 May 2010 an Israeli commando intervened against a Turkish ship, the Mavi Marmara, causing a number of deaths and injuries. In that case the legal problems are twofold: the ships stopped and seized were 70 miles off the coast, and a blockade aiming at starving the civilian population is prohibited. The Israeli defence claim was that the flotilla attempted to breach the blockade and a belligerent is allowed to take action to impede it; moreover that humanitarian aid should be authorized by the blockading force. The international panel established by the UN Human rights Council took the stance that the blockade was illegal because it was held to be out of proportion in respect to the suffering caused to the civilian population and was considered a collective punishment forbidden by the Geneva Conventions.¹⁵

Recent practice (October 2010) includes the request by the African Union to the UNSC of a resolution authorizing the blockade of the Somalia coast and the establishment of a no-fly zone that would stop the shipment of weapons to rebels suspected of being infiltrated by Al-Qaida.

While blockade is a belligerent measure carried out in wartime, pacific blockade is a forceful measure adopted in time of peace. Usually such a measure is selective since it is enforced only against a number of flags and not against all ships. For instance in 1902 Germany, Italy, and UK blockaded the coast of Venezuela as a measure to recover the debts owned by the Latin-American State. Currently Such a blockade should be unlawful unless authorized by the UNSC.¹⁶

A blockade should be distinguished from a quarantine, such as the one established by the United States around Cuba in 1962 in order to impede the shipment of Soviet missiles to the Fidel Castro government. Eastern bloc ships suspected of transporting the missiles were diverted from their route. The quarantine was not a blockade since it did not seal Cuba’s coastline. Ships were allowed to sail from Cuba. The legitimacy of the Cuba quarantine is doubtful for it was not authorized by a UNSC but only an OAS resolution.

18.4 Insurgency and Civil War

During a civil war the constituted government usually takes measures against insurgents that may also involve naval actions.

The French Navy conducted naval operations aimed at intercepting weapons destined for Algerian rebels during the Algerian war of independence in the 1960s, visiting and searching third States vessels and seizing their cargo. Such actions are not easily justifiable if conducted on the high seas. The Yugoslav central government subjected the city of Dubrovnik to naval bombardment in 1991–2 and that action was considered unlawful in so far as it hit cultural property. As already recalled, Israel is also currently patrolling the waters off the Gaza Strip, thus preventing the Palestinian Authority and now Hamas from reaching the open sea.