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Part Ii; Self Defense and the New Law of the Sea Regimes

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Part Ii; Self Defense and the New Law of the Sea Regimes PART II; SELF DEFENSE AND THE NEW LAW OF THE SEA REGIMES INTRODUCTION Admiral Bruce Harlow, USN Retired! Poulsbo, Washington It is a distinct pleasure for me to be here this afternoon to introduce a distinguished panel to you. I think the papers, commen- taries, aad discussion will be stimulating and will be of interest to all of you. I' ve had the pleasure of a personal association with the Law of the Sea Institute since its inception in Rhode Island in 1966. Believe me, that year is etched in my memory because as a somewhat idealistic lieutenant commander I presented a paper that damn near got me fired. Several weeks ago I reviewed the proceedings of that session for two reasons, One, I wanted to see the rate of survivorship of the charter members. I'm happy to report that membership does aot endanger your health, as evidenced by the large number of old fogies around here. The second reason to review the proceedings of that first meeting was to see if there was any relevance to the organization. I was frankly surprised when I looked at those proceedings to see how raaay of the thoughts and discussion points raised and reported in the pro- ceedings found their way into emerging customary law and indeed into provisions of the 1982 Convention. I think it is safe to say that over the years the Law of the Sea Institute has been one of the focal points for the discussion, albeit informal but authorititative, of important law of the sea issues. The organization has been relevant and I hope will maintain its relevance in the future. I' ve been frequently asked, "What is the role of the organization ia the post-negotiation phase? I think the contribution can be two- fold. One, to discuss means of effective and fair implementation of the balance envisioned in the navigation articles of the Convention. This morning, the issue was raised as to the relevance of the Convention absent the United States' signature or the Convention's foriaaBy coming into force. I believe its relevance is to be found more in the willing- ness aad desire of nation-states to abide by the provisions as a poten- tial blueprint for national conduct than in the issue of whether or aot the treaty corues into force. Second, equally important is to discuss the interface of these new regimes envisioned in the Convention with important maritime activities that relate to the Convention but that were certainly not discussed in the context of the negotiations. That is the thrust of the meeting this afternoon and indeed the entire week, I hope that the record of this meeting will likewise reflect emerging international law in the next twenty years as did the record of the first proceeding of the Institute. This morning we talked in terms of human rights, crime at sea, and other important issues. This afternoon, perhaps equaBy contentiously, we will talk in terms of national security and self-defense issues aad how they may relate to emerging law of the sea, not only in customary law, but as indicated in the balances envisioned in the 1982 Conven- tion. I can't think of a better group of panelists to stimulate this discussion and to lead it off. The first speaker is a close and dear friend of mine, Captain Richard Gruaawalt, USN Retired!. He is the Stockton Chair-holder at the Naval War CoBege, he has been counsel to the Chief of Naval Operations, and he has been deeply involved in national security I35 affairs aud maritime affairs for many years. He was Fleet Judge Advo- cate at CINCPAC, the unified command in the Pacific arena, and so has been not only at the Washington level but also at the field level, working with these intractable issues. The next speaker is a renowned author who has been involved in law of the sea issues for many years. He was a key advisor to the National Science Foundation beginning in the 1960s and indeed he was one of the key participants at the first Law of the Sea Institute meeting in l966. He and I have corresponded for years, and we' re still searching for agreement on some issues. Nonetheless, he's provided insights not only to me personally but indeed the United States Navy has come to expect an annual intervention on the part of Professor William Burke, flagging important issues and raising controversial subjects for the Navy to carefully think about. I am sure he will not disappoint the Navy or you this afternoon The next speaker is an international friend, The Honorable Colin Keating, Head, Legal Division, New Zealand Foreign Ministry. He played a vital role in the final phases of the Third United Nations Conference on the Law of the Sea as a member of the New Zealand delegation. He has had direct involvement in many maritime issues, particularly those involving the Central and South Pacific and the Indian Ocean. He will speak to you today with regard to nuclear free zones. One of the best examples of effective diplomacy that I know of is Indonesia's program over several decades to obtain international recog- nition of its archipelagic claim. As a member of an informal discussion team, I visited Djakarta in 1969. I remember vividly the United States representative making the point that our government could see no way that we could recognize the Indonesian archipelagic claim, Here I am seventeen years later, acknowledging in public that an archipelagic claim undertaken consistent with the balances envisioned in the l9g2 Convention is consistent with customary international law. Quite an accomplishment.The chief architect of this program and, believe me, a person that you want to keep as your ally if you' re involved in mari- time affairs internationally, is with us this afternoon. He is Ambas- sador Hasjim Djalal, Chief, Research and Development Agency, Indonesian Foreign Ministry. Before our second commentary I will call Professor Burke back to the lecturn to tell us briefly about the impressions he gained from a recent trip to the People's Republic of China, Our second commentator is Mr. Gao Zhiguo, who has come to this country to study international law of the sea. Mr, Gao is a lawyer with the State Oceanic Administration in China, which deals with ocean issues. He has agreed to comment on Chinese attitudes on the law of the sea. Our final comment will be from Professor Van Dyke from the Univer- sity of Hawaii's School of Law. He will make some brief remarks to link this afternoon's session to the Institute workshop he chaired last winter. 136 BELLIGERENT AND NEUTRAL RIGHTS IN STRAITS AND ARCHIPELAGOES Captain Richard Jack Grunawalt, USN Ret.! Stockton Professor of International Law U,S. Naval War College Newport, Rhode Island I want to talk with you this afternoonabout an issuethat you regular practitioners in the area of the law of the sea probably do not have an opportunity or a need to spend too much time with. That is the generalarea of the law of armed conflict as it applies at sea, parti- cularly the law of neutrality. Our missionduring this conferenceis to take a look and try to discern, with respect to the law of the sea, what lies ahead. What does the future hold? I think that the crystal ball is perhapsmost clouded in the relationship between the emerging law of the sea and traditional concepts of the law of armed conflict, Nations involved in the law of armed conflict are very often struggling for their very existence as sovereign entities. Conse- quently, the rules that have been developed over the centuries with respect to the law of armed conflict have had to be fashioned with that thought in mind, They have to accommodate the fundamental interests and concernsand requirementsof belligerents.Indeed the whole law of neutrality is essentially one of a balancing of interests. Whereasthe law of the sea, as it is contemporarily reflected in the navigational articles of the l982 Convention, outlines a balance between the inter- ests and requirements of coastal nations on the one hand and those of the internationalcommunity of oceanusers on the other,so, too, in the law of neutrality do we have a balance of interests. But in this instance it is between the fundamental requirements and interests of neutral nations and those of belligerents. What are the basic purposesthat underlie the law of neutrality? I think we would generallyagree that the fundamentalpurposes are I! to contain, if possible,the spreadof hostilities among nations, ! to the degreepossible, to limit the impact of an ongoingconflict on those nations that are not so engaged, and ! to attempt to protect and preserve neutral commerce at sea as much as is reasonable, given an ongoing conflict in that arena. The balance of interests that Fve described is generally re- flected in a system of reciprocal rights aud responsibilities of neu- trals and belligerents. Basically the rights of a neutral during armed conflict involve a right to claim the inviolability of neutral terri- tory, which traditionally includes the territorial sea. A neutral also has the right to expect minimum impact on its neutral commerce at sea during armed conflict. Conversely, a neutral bears certain duties that flow from those rights. One is the duty to abstain from the conflict itself, and second is the duty to remain impartial toward the belli- gerents on either side of an ongoing conflict, A belligerent simply has the reverse of that coin. Its rights include the right to insist that neutrals actually abstain from armed conflict and remain impartial toward its adversary and itself.
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