The Law of Naval Exclusion Zones A Thesis Submitted for the Degree of Doctor of Philosophy Daryl A. Mundis LL.M., The London School of Economics and Political Science, University of London M.I.A., School of International and Public Affairs, Columbia University J.D., Columbia Law School B.A., Manhattanville College University of London The London School of Economics and Political Science Law Department May 2008 Abstract Abstract The present work examines naval exclusion zones, with particular emphasis on the jus in bello applicable to such zones. The issues presented by the establishment and use of naval exclusion relate to many aspects of the law of the sea and naval warfare. Naval exclusion zones represent an important issue for national security policy makers, in that the use of such zones during armed conflicts at sea can limit the geographic scope of the conflict. While such zones may promote the principles enshrined in Article 51 of the UN Charter and discourage belligerents from waging naval warfare on a global scale, the use of such zones have the potential for disaster, in that naval commanders who mistakenly operate under the assumption that such zones are “free-fire zones” run the risk of unlawfully sinking hospital ships or other protected vessels. Moreover, naval exclusion zones have become increasingly common during modern naval conflicts, including the Falklands, Iran-Iraq and Persian Gulf Wars. Finally, even when used within the bounds of international law, naval exclusion zones still have the potential to disrupt commercial uses of the seas since they often cut across the claims of neutrals, potentially interfering with neutral commerce, oil exploration or fishing. This thesis traces the development of naval exclusion zones, with particular emphasis on the following: • The historical uses of such zones • The permissible threatres of naval operations under the modern law of the sea regime • The permissible scope of activity within such zones vis-à- vis belligerent warships and merchant vessels • The rights of neutrals in and around naval exclusion zones • The legality of such zones as analysed through the traditional sources of international law The thesis then concludes with recommendations for clarifying and strengthening the rules concerning the scope of permissible activity within such zones. Mundis 2 Declarations I hereby declare that the work presented in this thesis is my own. The copyright of this thesis rests with the author. Quotation from it is permitted, provided that full acknowledgement is made. This thesis may not be reproduced without prior written consent of the author. I warrant that this authorization does not, to the best of my belief, infringe the rights of any third party. I understand that in the event of my thesis not being approved by the examiners, this declaration will become void. I declare that my thesis consists of 90,847 words, excluding the bibliography and Appendix, in accordance with Regulation 4.1.2.(f), of the 2006/2007 MPhil/PhD Research Student Handbook of the Law Department. Daryl A. MUNDIS Dated this 15th Day of May 2008 The Hague The Netherlands Mundis 3 Acknowledgements Under ideal circumstances, writing a doctoral dissertation might be considered a difficult and lonely endeavour. When combined with a challenging career and parenthood, the task becomes even more challenging. Fortunately, I was able to count on the unfaltering support of Deborah Leipziger and my daughters, Natasha, Alexandra and Jacqueline, to see this challenge through to completion. Thanks also to Deborah for her helpful comments on various drafts. She undoubtedly knows more about naval warfare than she could have ever imagined possible—or useful! I will remain forever grateful to them for their patience and understanding as I pursued this dream. Of course, before these four ladies came into my life, I was always able to rely on my parents and step-parents, Carl and Colleen Mundis and Marilyn and Cornelius Wallace and Garry Beal, as well as my sister, Marla, for the intellectual, emotional and financial support that was the necessary foundation to get me to where I am today. I am also grateful for the support and encouragement of Michael, Fabia and David Leipziger. I remain indebted to you all for your unwavering support. I have also benefited tremendously from the support and encouragement of my supervisor, Professor Christopher J. Greenwood, Q.C. Despite my own periodic doubts about the wisdom of proceeding, Chris encouraged me to persevere, which is not surprising to anyone who knows him. Moreover, it was Chris who first planted the idea of this dissertation in my head more than eight years ago, when he was my LL.M. tutor. I found myself nearing completion of that degree, with no job in sight and my wife pregnant with our first child. Chris assisted me in developing this project and also helped me obtain funding. I am truly privileged to have studied under the tutelage of one of the world’s leading experts in the field. Shortly after being admitted into the PhD programme, Judge Gabrielle Kirk McDonald, then the President of the International Criminal Tribunal for the former Yugoslavia in The Hague, took a chance on hiring me. It has truly been a life-altering experience to work on the cutting edge of the intersection of international humanitarian and international criminal law. In addition to Judge McDonald, I have benefited tremendously from the opportunity to work for (and with) some truly outstanding colleagues, including Carla Del Ponte, David Tolbert (who was particularly supportive), Gavin Ruxton, Michael Johnson, Ken Scott, Mark Ierace, Dirk Ryneveld, Alan Tieger and Mark Harmon. They have all contributed in my development as an advocate. I must especially acknowledge William J. Fenrick, however. I had the good fortune to work for Bill, one of the world’s pre-eminent experts on the law of naval warfare, during my time at the ICTY, and his comments and criticisms on various drafts were always insightful and helpful. His friendship will be valued always. I have also been extremely fortunate in being on the trial teams in a number of different cases, including Fo ča, Keraterm , Gali ć, Hadžihasnovi ć & Kubura , Prli ć et al , and Deli ć. The experience gained in working on cases involving conduct of hostilities and command responsibility has been particularly rewarding and I will always cherish the friendships that I have made at this special institution. Behind any academic project, there are always librarians and university administrators who help in countless ways and I would be remiss if I failed to recognise these individuals for their assistance. Special recognition goes to Gary Meixner at the ICTY Library, who never once questioned why I occasionally presented him with requests for materials relating to naval warfare. In submitting this dissertation, I am grateful to all who have played a role—in whatever way, shape or form. The usual caveat applies: all errors, omissions, etc., remain mine and mine alone. Mundis 4 Table of Contents Abstract ............................................................................................................ 2 Declarations...................................................................................................... 3 Acknowledgements........................................................................................... 4 Abbreviations and Recurring Citations.......................................................... 9 Table of Cases................................................................................................. 20 Table of Treaties ............................................................................................ 23 Chapter 1 Introduction.................................................................................................... 28 I. Purpose and Methodology ................................................................................28 II. Issues Presented by Zones.................................................................................34 A. May NEZs be Established in EEZs?.................................................................34 B. What are the Applicable Legal Principles Within NEZs?...............................39 C. How do NEZs Affect Neutrals? ........................................................................39 D. How do NEZs Relate to Other Means and Methods of Naval Warfare?........39 E. What are the Legal Requirements for Establishing NEZs? ............................40 F. How Do NEZs Impact on Targeting Decisions?...............................................40 G. What are the Policy Considerations in Establishing NEZs? ...........................41 III. Note on Terminology.........................................................................................41 A. Armed Conflict at Sea.......................................................................................41 B. Warships and Military Aircraft .......................................................................42 IV. Note on Rules of Engagement...........................................................................43 V. Note on Military Manuals and Restatements...................................................44 VI. Note on Military Principles of Warfare ...........................................................46 Chapter 2 Naval Exclusion Zones: An Historical Survey.............................................. 49 I. Introduction and Definitions ............................................................................49