THE GULF OF INCIDENT ( v. ) AND INTERNATIONAL LAW by FRANCESCO FRANCIONI*

1. THE BACKGROUND

On the morning of 19 August 1981, while naval exercises were being carried out by the United States Sixth Fleet in the Gulf of Sirte, two Russian-built Su-22 aircrafts of the Libyan were shot down, following a brief engage- ment, by two American F-14 Tomcats from the aircraft carrier Nimitz. The incident was reported by American sources to have occurred in response to a Libyan attack about 60 miles off the Libyan coast in the air space above waters considered as international by the United States. Libya, on the contrary, maintained that the incident had occurred above Libyan waters. In fact, in a unilateral declaration of 10 October 1973, Lybia had proclaimed its full sover- eignty over the entire Gulf of Sirte and precisely within a straight line extending for approximately 300 miles between the two outermost points of Bengasi and Misurate at a latitudine of 32° 30' degrees north '. With regard also to the dynamics of the incident, the Libyan version was initially at variance with that of the United States inasmuch as it located the fight at a shorter distance from the coast (3c miles) and maintained that the US planes had opened fire first and that one of them had been shot down 2. This version, however, was modified in the of- ficial statements of subsequent days, particularly with respect to the crucial point of who had opened fire first: during the press conference held by Qaddafi in Addis Ababa on 21 August it was admitted that the Libyan war planes had attacked first "in order to protect the Libyan air space and territory". In the same press conference, and even more explicitly in his speech at on i September, the Libyan leader reiterated that the Gulf of Sirte was an integral part of Libyan territory and that its defence constituted an imperative of national

* Professor of International Law, University of Siena. This article is a revised version of a lecture delivered at Osgoode Hall Law School, Toronto, Canada, in October 1981. 1 See RousSEAU, "Cronique des faits internationaux", 78 RGDIP (1974), p. 1177 if. 2 See New York Times of 21 August 1981, especially the article "Over the ", and the Corriere della Sera of 20 and 21 August, p. i. See also ADAM, "L'incidente del golfo della Sirte", 64 Rivista (1981), p. 1025 ff. policy. The speech did not spare some ominous overtones with regard to the possibility that another incident such as the one that had just occurred in the Sirte might lead "to a bilateral war with the United States" and "cause the third world war", as well as the bombing of military installations of United States allies in the Mediterranean including 3. At a time when most of the attention of world public opinion was con- centrated on events taking place in, or concerning, continental Europe (the SS-20 missiles issue, the international implications of the Polish situation, the re- opening of the Madrid Conference on European security and cooperation), the Sirte incident was a sudden reminder of the continuing strategic importance of the Mediterranean beyond the purely regional interest of the bordering countries. The implications of the incidents with respect to a possible threat to international peace were immediately witnessed by the initiative taken by the US and Libyan governments to the effect of informing the Security Council of the situation 4. The United States, for its part, called also for an extraordinary meeting of the Atlantic Council of NATO countries in Brussels. These two initiatives, however, were not followed by a meeting of the Security Council or by any action or political evaluation of the incident on the part of the Atlantic Council. With regard particularly to the bilateral context of Libya-United States relationships, we must not forget that the Sirte incident was the climatic outcome of a series of events producing a high level of tension between the two countries. Among them we can mention the Libyan intervention in Chad in 1980 which met strong opposition by the American administration - an indirect supporter of Chad's dissenting movement operating from military bases in the Sudan. Qaddafi was held responsible by the Americans for destabilizing activities in Africa and at the same time he was the target of repeated accusations in many

3 These threats caused a strong reaction on the part of Italy. In a note issued on 2 September 1981 the Government declared that the Libyan threats were grave, totally inadmissible and inconsistent with the policy of good neighborhood persued by Italy in the Mediterranean, adding that Italy would oppose any unilatetal attempt to alter the political and military balance in the area. See 45 Rellnt (1981), No. 37, p. 785 ff. For further comments on Qaddafi's speech and Italian reactions, sea ibidem, p. 773 ff. The Italian note was accompained by a request for explanation from the Libyan ambassador in Rome as well as by statements on the part of the Italian Defence Minister, Lagorio, concerning the actual limits of implementation of Qaddafi's threats. The unusually strong Italian reaction was in turn followed by some Libyan diplomatic steps intended to water down the seriousness of Qaddafi's threats and to clarify that Tripoli simply wanted to assert its right to take defen- sive action in the event that United States or NATO bases in the Mediterranean were used against Libya. See RelInt, cit., p. 77q. f. 4 See Keesing's, 13 November 1981, p. 3II82 f., and Nations Unies, Revue de la semaine, 1981, n. 33, p. 2 f.