Claims Related to the Law of the Sea (LOS
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Chapter IV CLAIMS RELATED TO THE LAW OF THE SEA (LOS) ince World War II, States have attempted to negotiate multilateral agree S ments to delimit boundaries and use of the Earth's oceans and seas. There have been successes and failures. In 1958 four treaties-the High Seas, Continen tal Shelf, Territorial Sea and Fishery Conventions-were signed at the Geneva UN Conference on the Law of the Sea and are now in force for ratifying States.l Two years later attempts to delimit the territorial sea failed at Geneva.2 In 1982 an other agreement, the UN Convention on the Law of the Sea (LOS Convention), a comprehensive treaty covering subjects of the 1958 conventions and other princi ples, e.g., environmental protection, discussed in Chapter VI, was signed at Montego Bay, Jamaica after nearly a decade of negotiations; several principal ac tors, including the United States, elected not to sign due to problems with the Con vention's deep seabed mining provisions. The LOS Convention is now in force, but not for the United States and an increasingly smaller number of countries.3 Besides the LOS conventions, many other agreements, e.g., the ICAO Conven tion,4 impact LOS boundaries and ocean usage, not to mention State practice, the research of scholars,S and occasional judicial and arbitral decisions. This Chapter analyzes LOS issues relating to the Tanker War under three prin cipal topics: the relationship among the law of the UN Charter, the LOS and the law of armed conflict (LOAC), discussed in Part A. Part A also discusses issues re lated to treaty interpretation in these contexts. Part B analyzes LOS issues related to oceans use, and Part C discusses the status of vessels (merchantmen, warships, etc.) plying the oceans. A conclusion relates these claims to Tanker War issues in each Part, and a general conclusion, Part D, summarizes Tanker War LOS issues. Part A. The Charter, the LOS, and the Law of Armed Conflict (LOAC) The rule for the relationship between the law of the UN Charter as a treaty and the LOS as stated in treaties is simple. The Charter prevails.6 Similarly, to the ex tent that Charter norms or other norms have jus cogens status, these rules also pre vail? If an LOS norm is stated in a treaty, in custom or in general principles, and there is a conflicting customary or general principles norm parallelling the Char ter as a treaty, the analysis is less clear. If traditional modes of thinking about sources ofinternationallaw apply, a balancing process among these norms must be undertaken; it is conceivable that a non-Charter norm might prevail. 8 In terms of competition between the Charter and the LOS, however, this is largely a theoretical 242 The Tanker War issue, except insofar as the right of self-defense, other Charter norms, or manda tory decisions of the UN Security Council might supersede LOS treaty norms.9 1. The LOS and the LOAC The relationship between the LOS and the LOAC and its component, the law of naval warfare (LONW), is somewhat clear but less well known.10 Chapter III has discussed them in a context of general principles of UN Charter law and principles of treaty interpretation.ll They are repeated here for convenience in interpreting the law of the sea. The 1958 and 1982 LOS Conventions include clauses, sometimes overlooked in analysis or commentary, stating that rights under these agreements are subject to "other rules ofinternationallaw" as well as terms in the particular treaty. 12 For ex ample, LOS Convention, art. 87(1), which declares high seas freedoms, also says, "Freedom ofthe high seas is exercised under the conditions laid down by this Con vention and by other rules ofinternationallaw." Four conclusions can be stated. First, an overwhelming majority of commentators, including the International Law Commission, a UN General Assembly agency of international law experts,13 state that the other rules clauses in the LOS Conventions refer to the LOAC,14 which includes the law of naval warfare. Therefore, provisions such as LOS Con vention, art. 88, state a truism: The high seas are reserved for peaceful purposes,15 but high seas usage can be subject to the law ofarmed conflict, when Article 87(I)'s other rules clause is read with Article 88. As in the 1958 conventions, That provision does not preclude ... use of the high seas by naval forces. Their use for aggressive purposes, which would ... violat[ e] ... Article 2(4) of the [UN] Charter... , is forbidden as well by Article 88 [of the Convention]. See also LOS Convention, Article 301, requiring parties, in exercising their rights and p[ er]forming their duties under the Convention, to refrain from any threat or use of force in violation of the Charter.16 This analysis is buttressed by the Charter's trumping clause; no other treaty can supersede the CharterP Thus the peaceful purposes language in Article 88 and other LOS Convention provisions cannot override Charter norms, e.g., Article 2(4), but also those in Article 51, i.e., the inherent right ofindividual and collective self-defense.18 Second, there is no indication that the 1958 or 1982 LOS Convention drafters thought the other rules clauses referred to anything else, e.g., to a customary law of the environment. As discussed in Chapter VI, international environmental law was a gleam in academics' and futurists' eyes when the 1958 Conventions were signed; there was only a patchwork of international agreements touching the sub ject.19 There is no indication the International Law Commission, which drafted the 1958 treaties, considered environmental protection. By contrast, there was an Law of the Sea 243 established body oflaw, discussed in Chapter V, dealing with armed conflict situa tions, including naval warfare, at the time. Since the 1982 LOS Convention carried over the same language, it must be presumed that the same meaning attaches to the other rules clauses. Third, e.g., other agreements dealing with protection of the maritime environ ment include clauses exempting, or partially exempting their application during armed conflict or similar situations. Some speak of war, 20 others of armed conflict or a need to protect vital national interests.21 This includes the NAFTA.22 This tends to confirm the view ofapplying the law ofarmed conflict as a separate body of law in appropriate situations. To the extent that treaties dealing with the maritime environment do not have such clauses,23 such agreements must be read in the light of the LOS Conventions, which include such provisions. And to the extent that the 1958 LOS Conventions recite customary norms, and such is the case with the High Seas Convention,24 applying the LOAC as a separate body oflaw in appropriate sit uations as a customary norm must also be considered with LOAC treaties and other sources25 when analyzing these issues. Fourth, principles of the law of treaties, e.g., impossibility of performance;26 fundamental change of circumstances;27 desuetude, or lack of use of a treaty for a considerable time;28 or war, the last applying only to parties to a conflict;29 may suspend operation of international agreements during a conflict or other, similar emergency situations, or may terminate them. Outbreak of hostilities does not sus pend or terminate humanitarian conventions or treaties governing neutrality de signed to apply during armed conflict, however.30 The other side of the coin is pacta sunt servanda, 31 i.e., that treaties should be observed; a manifestation of this is that States signing treaties should not behave so as to defeat the treaties' object and purpose.32 The often amorphous law of treaty succession33 must be considered, particularly for older agreements, including those stating the LOAC, to the exten t that those treaties are not part of customary law today. If these agreements restate custom, and are subject to treaty succession principles with respect to a particular country, that country is doubly bound.34 The conclusion is inescapable that the other rules clauses of the 1958 Conven tions, provisions carried forward into the 1982 LOS Convention, mean that the LOS conventions' terms are subject to the LOAC, of which the law of naval war fare is a part. Since the High Seas Convention is generally considered a restatement of customary law,35 its other rules clauses are part of the customary law governing oceans law during armed conflict. Moreover, since many States consider the LOS Convention's navigational articles, which often copy 1958 conventions' terms, customary law,36 and since the navigational articles include other rules clauses, the case is strong that the LOS is governed by two bodies of rules: (1) the LOS as stated in the conventions, custom and subordinate treaties, etc., in non-armed con flict situations; (2) the LOAC, including the LONW, where LOAC rules apply. 244 The Tanker War Iraq's claim that the Kuwait Regional Convention and its Protocol did not ap ply when it struck the Nowruz oil facilities37 was without basis in law. Although the Convention might have been suspended between the belligerents, it continued to apply to relations between Iran, Iraq and third States, the latter of whom were not parties to the conflict, i.e., belligerents.38 To the extent the Nowruz attack re sulted in damage, including environmental harm, to States not party to the con flict, Iraq violated the Regional Convention and perhaps other environmental norms.39 Iraq might have claimed the Convention was suspended because of im possibility of performance,40 or maybe fundamental change of circumstances,41 but Iraq did not make these assertions.