263

LAW OF NAVAL WARFARE William O. Miller

Today I am going to ~peak to you coercive mcasures, has been generally about a problem area which has been diseusscd in thc contcxt of thesc two till! ~uhject of much discussion among extremcs. Using this rationale, the spe­ publicists, that is, whether or not ex­ cific usc o[ [oree at sea in a given isting rules of naval warfare arc su[­ situation can be characterized as legal or fieirnt to meet the needs of eurnmt illegal, depending upon the exif;tenec of naval opl·rations. Stated in another way, a state'of war. Such thin king ha~ 1)(:en do existing rules of international la·w criticized by many as obviously unsatis­ have real rr.levance to prescn t an II fore­ faetory, sinec, on the contemporary sl'I'ablc USl:S of naval force in situations sel:ne, states sometimes pl:reeive a need often characterized as short o[ war'? In to exercise some limitcd degrec of force d,·aling with this suhject it is not my at sea which they find difficult to intent to offer solutions, but I do hope justify under a pl'acI:timc mgime, ImL to stimulate your thinking on this sub­ yet find themselves unwilling to dedan: jl·l·t, 01\1' I ronsidl'r I:xtremdy important a fitate of war. However, to simply fiay to the operation o[ l'onlemporary naval that currl'nt situations involving po::;::;ible for(,l·s. use of naval force lIlay not fit neatly MOf':t traditional inh:rnational law into one or the other of these tradi­ puhlieisls have approadlCd their subject tional eategories docs not adequately set hy fil:lling up two ollVio\H; categories forth the true nature of the problem. within whi(·h to di~(:u!i.<; international Nor does it neeessarily II:ad to the It·gal rull:s-the laws of "war" and the conclusion that new rules arc rc:quired. laws of "pcaee." The legitimacy of the This, then, is the broad question usc of naval power, as with othcr which is Lo be examined here, i.e., 264 wlwther there is a need for a new st:l of attelllpt to limit 1111: dfeds of eomhaL rilles of naval warfare to apply in at sea as much as possible boLh as Lo the: sitllations which arc neithcr "war" nor area of the conflicL and as Lo Lhe "peace" in the classic scnse. parLieipanLs; LhaL is, Lo circumscribe the I mllst add an aside at this point, eon flicL so LhaL it did noL spill over Lo primarily because I know that when one affect any more than necessary Lhe is first exposcdto international law, and rights of sLatcs who wcre not parLies. fL particularly to the "laws of war," qucs· was in this conLexL that the greaL body tions arise along the following lincs: of law regarding bellig(:rent and neuLral • Is not war simply a. malll'r of till: rights al1(J duti(:s as WI: know il today stronger or more operationally all"pt urm;c::* nation winning a victory through skillful NeutraliLy is a cone!!!,L in LrudiLional application of force'? internaLional law which arises only • If this is truc, are there really any when a state of war exisLs beLween Iwo "laws of war" or is it just an :\(:adelllie or more other sLates. Traditional law exercise of lawyers and politicians'? gave belligerenL righLs and obligaLions to • On the other side of the coin, if the parLies to a war. For those staLes not rational men now agrcI! that war is a purLicil'aLing, the law provid(:d corre­ destructive force which must bl: ahan­ sponding neuLral obligations m\(.1 rights. doned as an instrulllent of national The exiSLence of a legal sLaLe of war poliey, why should rules for the I:on­ broughL Lhese rights and obligaLions inLO duct of war be formulated at all'? exisLell(:e. I will not attempt to dcal specifically NI'II traliLy is defincd under Lrudi­ with these ,!uestions bllt will briefly tional international law as the nonpar­ comment on the nccessity to formulate ticipuLion of a statc in a war bc:Lwel:n rules for the conduct of war. other states. The Icgal signifie:lI1cI: of There arc two basic principles which such nonl'arLicipation is thaL iL brings guide ;IIlY inquiry into the rilles of inLo opera Lion numerous rules whose warfare. These arc the principles of purpose is the regulation of relaLions miliLary n,:cessity and the principle of between neutrals and bdliw~rents, pro­ humanitarianism. The sp,!<:ific rules of viding certain righLs and obligaLions for warfare both on land and on the sea, boLh parLies:H The principlc of imJlur­ whieh haVI! LII:lm g':n,:rally agrcl:d IIpon ti:llily holds LhaL a neutral Rlal(! is for the (llIst J 00 years, have sough t Lo required to fulfill iL'l obligations uud bring these two conel:l'ts into balancI!. enforee its rights in an equal mannc:r The essential thrust of tlles(: rulc:s for Loward all hdligc:rl'nLs. warfare aL sea has been to reserve for AILhough the rules of IwutraliLY W('n: Lhe beiligerenL, wiLhin the bOlll.HJs of violatud on a large scale during both humanitarianism, the right to attack thosc objects which were reeogni"a:d as legitimate military objectives. It also 'lONWII' 10-2, 'l'I1I! Law of N"pal lI'"r/t.re is a generally accurate summary or the tradi­ provided the belligerent with the right Lional rules or naval warrare. It is premised on to use such force as may be necessary to Ihe "war" and "peacc" categorizations or attain his objective, while at the same classical writers, Basic to this traditional time providin~ proteetion-as was physi­ treatment arc the concepts or belligrrenL and cally possible under the eireulllstmH:es­ ncutral righls which, in theory, lIeatly lak(:s into account both participants and nOllpartici­ to noneombat:mts who JlJay lu!eonw pan Is in a ronflit:t. involved and 10 survivors of thl' m:tion. ""lOThc bulk or Ihl:s(' nlles,as thl'y n'la'" to Also, it is p;enerally agrel'd that the maritime: warrare: arc sl'l rorth in the \Iagur. IlJaJor political purpOSI: of LI\(' tradi­ COllvl'lIlion 011 til(' IUghts and Dntil:s or tional law of naval warfan: was to N('utrall'()wl:l"S in Mariti'lIl! War, 265

World War J and World War II, the j 907 on cargo. BIoekar.lr·, by its nature, in­ Haglll: Conventions on the Rights and volves not only interference on the high Duties of Neutral Powers in Land and s(:as with vessels flying til(! enemy's flag, Maritime Warfare, to which the United but also with vessels flying the flag of States and the U.S.S.R. arc partieg, still neutral states. One of the most funda­ stateg the basic law of neu tral-belliger­ mental considerations in bloekade is ent rc\utionship. Generully these rules that it applics to belligerent and neutral provide for: vessels alike; hence, one of its rcstric­ • inviolability of neutral territory or tions is on the othcrwise legally un­ territorial waters from hostilities; restricted rip;ht of neutral states to trade • no usc of neutral territory as a with whomsoever they wish. In light of belligerent base of operations for filling this fact, it is not surprising that neutral out of ships or other combatant foree~ states insisted that the enforcement of a or as a warship sanctuary for longer blockade must be in accordance with than a stated period; strict and clear rules. For the traditional • no usc of neutral territory for the close-in blockadc to be lawful it must transshipment of belligerent troops or be: war supplies; • enforced by sufficient ships to be • a neutral is not bound, however, effective (i.e., to create a substantial rigk to prevent the export or transit for use of apprehension for any would-be of ei ther belligeren t or war ma terial. blockade runner); Up to and including WW 11, it was • enforced impartially against all customary on the outbreak of a state of ships, belligerent and neutral alike; war for nonparticipating states to issue • commenced with proper notifica­ proclamations of neutrality, although tion; and such is not required. In both WW I and • it must not bar access to neutral WW II the United States did issue such ports or coastlines. declarations, and hefore WW II, in a The last requirement has virtually series of neu trality acts frolll ]935 precluded uge of traditional hloekad(! in Ihrough 19:19, we adually h~gi:;lall'd our 1II0dl"rn warfan', sinee tIl(! d(~JlI()ynwnl neu trality. Stringent adherence to the of the bloc:kading force close ill tu tlw belligerent-neutral rights and duties blockaded area is often impossible frum method of establishing rules for warfare an operational vi(!wpoint, and geo­ follows logically from the "war"­ graphical considerations make it dif­ "peace" dichotomy upon which such fieult in many regions to .hloekade rules are premised. Perhaps the hest farther at sea and still not intc:rfc:n! with example of this is the sct of rules innocent neutral shipping or bar access applicable to naval blockade. to neu tral ports. Traditional or close-in blockade had Conversely, under traditional rules, as its basis thc bdligcrent right to. establishmcnt of a belligerent hloc:kadl' embargo sea eOlllmcrce to and from its would generate corresponding neutral cncmy-to stop the flow of thos(~ goods, rights and obligations for nonpartici­ both inward and outward, which cn­ pants ill the conflict. A neutral must: hancc thc enemy's warmaking effort. I310ckade was originally conceived and • require ships flying its flag to executed as thc maritime countcrpart of rcspcet the blockade; sicgc and sought the total prohibition of • require its ships to navigate so as maritime COllllllunication with all or a not to unreasonably interfere with the designated portion of the enemy's coast­ blockading force; and line. Its focus was on ships, unlike thc • otherwise to freely navigate its law of contraband where thc focus was ships in the area of the blockade. 266 Two major factors which charac­ large.scale war zones, through whieh teri;-a:d warfare over the first half of this transit by an encmy or a neutral ship century have rendered literal adhcrence was made extrcmely hazardous by the to these detailed rulcs difficult, if not use of mines and submarines. These impossible, to achieve. First, the scope policies represented major departures of objectives sought by states at war from the traditional law in that they expanded dram:ltieally over what it had utilized extensive resLricLion of access to been in the 19th century. And secondly, neutral porLs and subjected ships aL­ the dramatic advances in technology tempting to breach the blockade to during these years geometrically in­ destruction without warning rather than creased eaeh country's ahility to pursue to capture and condemnation ill pri",l:. its national objectives. World Wars rand In sum, the maritime interdiction prm:­ II illustrated beyond doubt, if ever there tiees during WW 1 ami WW 11 JIlI:an 1 was a doubt, that the amount of force almost total control of, instead of mini­ which a state will employ in warfare mal interference with, neutral eom­ varies in direct proportion to the scope mercc. of the objective sought to be aehieved. The WW II experiencc illustrates thaL It should have surprised no one that in a eonniet situaLion where the objec­ when the conflict objective reaehcd the tives of the participants are very broad, point of "unconditional surrender"-or, the commitment to such objectives may if you wish, of national survival-that force parLieipants to reeasl tradiLional the scales which seek to regulate eon­ rules of naval warfare Lo allow tIll: lliet would be weighted most heavily on exercise of thal degrce of force dcem(:d the side of military necessity. Considera­ essential. tions of humanitarianism, whether we An excellent example of this poinl is like it or not, simply took a back seal. the submarine. The impacl of iLs cal'u­ Thm~, history would s(~em to sU{rgl'st bilitil!s should hav(: hem) ul'parl'n L dur­ that states will accept fewer and fewer ing the First World War. AfLer its early restmints in the form of law as their lise againsl surface warships, Germuny national objectives beeollle more signifi­ turll(!d her sulnnarines primarily ugainsl cant to them. merchant shipping, sinking more than I think this can be illustrated quite II million tons of Allied and neutral well by the actions of all belligerents at shipping. Yet efforts IwLween Lhe: wars, sca during World Wars I and Il, for in ainied at eSLablishing rules for the usc: of each of these conflicts both sides the submarine, ignored the technology adopted a type of maritime in Lerdiction of the new weapoll. AfLer unsuccessful which they felt was essential in a war of attempLs to ban usc of the suhmarine total dimensions, where not only the entirely, rules were codified as "interna­ military but the eeonomie base of the tional law" with n'speet Lo the: sub· enemy became a It:gitimate military nwrin(! ill tht: London Naval Tn~aty of objective. Thesc measures involved 1930 whieh provided: closing and patrolling large areas of the In their action wilh regard to high seas, hundreds of miles from the merchant ships, submarines must enemy's coastline, with a view toward conform to the rules of interna­ prohibiting all maritimc intercourse tional law to which surface vessels with the enemy. arc subject. In practice the Germans even sank In parLieular, except in eases of neutral ships, without warning, by the persisLent refusal to stop Oil being usc of unrestricted suhmarine warfare. duly summoned, or of active resis­ British, and later United States, hloek­ tance to visit and search, a war­ ades of Germany were enforced by ship, whether surface ve!'sel or 267

submarine, may not sink or render permits the imp05ition and acceptance incapable of navigation a merchant of more restrain ts. Hence, con tcm­ vessel without having first placed porary practicc since WW II has tendcd passengers, crew, and ship's papers to blur traditional concepts of belligcr­ in a place of safety. For this cnt and ncutral rights and duties. Statcs purpose the ship's boats arc not have not formally insistcd on "bclliger­ regarded as a place of safety un­ cnt" rights and, accordingly, - thosc less the safety of the passengcrs states not IHlrtics to conflicts have not and crew is assured, in the cxisting had occasion to insist on "neutral" sea, and weather conditions, by rights. the proximity of land or the In contrast with the experienccs of presence of another vessel which World Wars I and II and as an illustra­ is in a position to take them on tion of the type of conflict. in which board. participants morc rcadily accept rc­ These provisions werc reaffirmed vcr­ straints in the form of law, I think we batim in the London Protocol of ] 936 can refer just bricfly to thc cxpcrienee and thereafter were acceded to by 48 in Vietnam. states. All of the naval powers, including When contrasted to the experienc(!S Germany, were bound by these rules at of World Wars I and II, the .Vit!lnam the outset of WW II. Clearly these affair provides some useful insights-in provisions ignored the submarine's pri­ the form of law-of the restraints the' mary technological asset as a clandes­ participants will aeccpt in today's con­ tine, surprise weapons system, and con­ flict situations. Regardless of the c\assi.e sequently they were bound to be ig­ definition of war accepted by interna­ nored. Submarines were unable to com­ tional law, there is no doubt that ply with these rules without sacrificing Vietnam has becn a conflict of major thcir primary capabilities as a naval proportions. Yet the objectives have weapon. The all-encompassing con­ always been limited, and thus we have straints of these rules. dmfted without witn($sed -tIl(! exercisc of signifieant ('onsirh'ration for the unique tedlllologi­ n:~trailll. Submarines have not be'(:n cal characteristics of the submarine and utili1.ed, and no blockade or minefields applied to a eonnict situation whie:h have been established around either sought to forcefully ohtain the: hroadest North or South Vi(:tnarn. In short, thc political objectives, virtually insurcd Victnam conflict has not resulted in the that they would not be followed. In parties excrcising those powers at sea point of fact, the probability of success­ which would be cxpeeted if the conflict fully obtaining adherence to other than were traditionally categorized as a war. the most general conflict rules in an Obviously, thc situation in Victnam has environment of total war is almost nil. not been, and is not now, a time of Toward the close ofWW II, however, p(~aee. Yet that conflict has been fough t a new factor was inserted into the in the maritime environment according equation with the development of to rulcs, primarily the peacetime rules atomic weapons. Total war, or the set forth in the 1958 Geneva Conven­ objective of reducing one's enemy to tions on the Law of the Sea. total submission, can well be a course of Operation Market Timc is an excel­ action which rcsults in mutual annihihl­ lent examplc. The peacetime rulc re­ lion. I t appears to me that our techno­ lating to the territorial sea holds that logical achievements have placed some such watcrs arc subject to the exclusive practical limit on the scope of objectives sovereignty of the coastal state. This has which can be sought through the use of hut ~)J)e exccption, and that is the right force. Having more limited objectives of foreign vesscls to engage ill innocent 268 passage through the territorial sea of a control virtually all threats that occur coastal state. The Geneva Convention within 12 miles of land. on the Territorial Sea and the Con­ One possible situation remains un­ tiguous Zone states that "Passage is controlled under the J965 decree. That innocent so long as it is not prejudicial is the situation where a North Vietna­ to the peace, good order or security of llIese vessel, which is known by Lhc the coastal state." Sou th Vietnam, in its South Vietnamese to be a North Vietna­ ] 965 decree on sea surveillanel!, served mese vessel, is outside the 12-mile 7.0111: notice that its 3-mile territorial sea was and obviously carrying wI:apons Lo bl: going to be vigorously patrolled and used by the Vietcong against Lltt: South that vessels of any country "not e1early Vietnamese Government. NeiLher Lhe engaged in innocent passage are subject decree nor the 1958 Geneva Conven­ to visit and search and may be subject tions cover this type of siLuation. There to arrest and disposition ... in con­ is precedent, however, in current inLer­ formity with aeccpted principles of in­ national law for South VieLnam Lo act ternational law." It thereafter listed the against such a vessel should it become type of cargoes-war goods-which necessary. would be considered suspect. TIH:rdore, I rcfl:r to the basic right of every within the 3-miIe band of territorial state Lo Lake such actions aL sea as arc waters, peacetime rules were found to reasonable and necessary to proLect iLs be adequate to deal with the threat security interest against the hostilt: m:Ls posed. of other states. The old case of Lhe International law also, in the form of U.S.-flag ship Virgillius is fr':quenLly this same] 958 convention, provides for eited in support of this proposiLion. the cxereise of some degn!e of eouLrol This ship was sl:i~ed by the Spanish in the eontigu{)us ~one which can ex­ authorities in 187B while it was in Lhe tend a total of 12 miles from the process of LransporLing arms to Cuban baseline frolll which the tl:rritorial s(:a is insurgents. The British ship Dccrhoulld measurell. Within this 9-!IIil(! hand of was sei~ed by Spanish warships during waten; eonLiguous to till: South Vit:lna­ the Spanish Civil War for tlw san II: mese territorial sea, tlH: peacetime rules reasons, and during the Algerian war, provide that "the coastal state !IIay French warships stopped at leasL Lwo exercise that degree of eon trolneees~ii1ry ships-one a British and one a Yugoslav, to prevent infringement of its customs, boLh of which were suspecLed of tlte fiscal, immigraLion, or sanitation regula­ same offense. Although it has not been tions eommitLed within its terriLory or considered necessary, I Ldieve Lhat territorial sea." South Vietnam aceord­ these cases could be us(:d as prccI:dl:nt ingly provided that all vessds within iL<; for South Vietnlllll to sl:i~l: a ron:i~n contiguous ~one wew subjeet to visit veS~I'1 on the high sl'as whidJ illJnwdi· and search, and arrest where appropri­ atdy Lhn:atens Lheir seeuriLy during this ate, for violation of any of the ahove period of instabiliLY. regulations. It further provided that Lhe I do not suppose one should discuss entry of any person or goods through the rules rdating to the usc of Corce at oLher than reeogni~ed ports was for­ sl:a in a situation short of war without bidden by South Vietnamese ellstoms mentioning brielly the Cuban quanlll­ Hnt! immigration regulations and that tin e 0 I' 0 e Lober/Novl:Jnbl:r L962. the:;l: regulations wen: going to be Briefly, the lJuanllltiJJ(! m:tion involvnd stridly en forced. Thus, through sole Lhe dl:daratiol/ of 1:I:rLail/ areas of LIII: rdianee on the peacetime convention on high :;eas adjacent to Cuba in which all tI)(' terri torial sea and the contiguolls shipping suspected of being houI/d for ~one, So.uth Vietnam hm; been able to Cuban ports and of earrying cI:rLain 269 d':signat(:d contraband p;oods would 1)(: requirement of nil aetual state of war or suhj(:ctcd to visit and search. Ships helligen:ncy. found to bc carrying prohibitcd ~oods The basic ingredient, as I havc noted and bound for Cuba would be diverted e'l.rljer, was a political need to limit the from their intended port. A clearancc conflict both as to area and as to certificate procedure was cstablished participants, and I think it is clear that under which a ship at its port of the grcat bulk of the rules which we call departurc could be certified as innocen t rules of naval warfare really involvc this and thus would be permittcd to pass limitatioli and with it thc belligerent through the quarantine zone unin ter­ neu tral relationship. The same con­ rupted. siderations which gave risl: to thc tradi­ The quarantine differed from a tional laws of neutrality, particularly as blockade in that it: they rclate to sea wnrfnre, continue to • sought to ban only certain items bc givcn hced by policymakcrs today in of contraband goods, rather than all situutions short of wur. maritime intercourse; Thc major political considcration in n 20th ccntury Iimitcd wnr is the same as 8 used as methods of enforcem(:nt it was in the 17th and 18th centuries­ only visit, search, and diversion and did the need to limit the conflict, to kecp it not employ destruction without warn­ from unnccessarily spilling over to ing; nffcct nonpnrticipnnts. This has mcant, • sought to avoid the consequences in Victnam for cxamplc, that we do not of a formal statc of war. interfere with commcrce into North The quarantine actually bore a very Vil!lnmn, even though thut comlIwre(: close relationship to till: 01(1 law of has been essential to their conduct of contraband, undl:r whieh belligerents hostilities. claimed the right to prohibit the inflow We havc not insisted on belligerent of certain strategic goods into enemy rights ut sea because to do so would ports. involvc othcr major powers und broadl:n Them was obvious and elt:ar inter­ the scope of the eonf(iel. ference with the pcaeetime rights of the On thc other IUlnd, the Cuban situu­ Soviet Union and of Cuba to trad,: with Lion illustrates thut where LIII: ein:ulII­ whomsoever they pleased and to utilize ~taJlel:g un: right, a state will inHist, (:VI!II the !mas for th is purpose. As 1 indieatl:d ill a peacetime situation, .to whut was earlier, we havI: seen this type of inter­ trnditionully known liS 11 bc:lIigen:nt ference in modern times only in those right. The qucstion today reully i~ not a cast's where the objectives arc of the purely II!gul onc, und it never really wus. highest order. SIH:h was the case in The rules arc mcrely a reflcction of Cuba, of course. The stationing of nu­ the (Iolitieal renlitil:';. Und"l:r the old lmv, clear missiles a scant 90 miles frolll our if 01\1: wished to exen:ise belligen:nt shores was considered such a threat tlwt rights at sen, partieularly as th,:se rights we wcre willing to risk a broadening of eame to Le cx(:rcised in World Wars L our disputc with Cuba, even to the and 11, one had to m;~ume the risk of point of involving open conflict, if broadening the eonflieL, of making m:cessury, with the Soviet Union. I:ne:mil's out of nl'utrals. The Haml' iH think thesl: two illustrutions tnll' today. If a Htate wislws to utilizl: ,lcmHlIIHtratl: mtlll:r dl:arly that thl: baHic: foree at ~l'a, other than dir':t:lly against polil'y inl-(n:ilients whidl underlay thl: his auvI:rsary, he must run the risk of traditional laws of naval warfarc con­ bringing others into the hostilities. tinue to LII: opl:rative today. This is true: Except in eascs like thl: 1962 missill! even though we do not havI: the classic crisis, whcrc the nutionul seeurity is 270

thn~aterH:d, the poten tial risk is just too brom] progrlllll for prepllring lIdditional great today for a state to claim belliger­ l-TJ.tidl'lines for use by 1I11vlli forees in ent rights. !'ituations short of wlIr. So 1 will dOim Where cloes all this leave us? Whilc~ at hy silllply posing that (]um;tion to you. one tillle 1 was ready to eritieiy,e rather Is till' current war/pellce dic'hotoIllY, severely til(' war/peaee diehotomy, my and its rules for thc: rcgulation of views of late have lJ('(~n influ(~tl(:ed hy conflict lit sea, slItisfaetory for tlte what I see as a commendable stability conlc'lIIporar} c'nvironnIC'nL"? Or do in relations between stat.es which that navlli COJlIIIHIIII!c:rs lH:c'd somc:thillg nc:w dichotomy forces upon us. The reason to guide thelll ill situaliolls short of for this, of course, is the political war? I slIppose whllL I alii really asking realities which underlie that separa­ is, "Arc our presellt peaec:tilllc: rulc:s tion. adequate?" These questions have heen the suo­ Now that I haVe! rlli:-;c:d LIte '!uc::-;Lioll, jed of eonsiderable study for some time perhaps some of YOIl would likc: Lo now. These efforts are aimed lit trying suggesL some answers which could be of to determine whether there should he 1I assistallce to us. ----!p----