United nations mandated naval interdiction operations in the territorial sea?

International and Comparative Law Quarterly

Volumn 51, Issue 2, 2002, Pages 249-278

  Mclaughlin, Rob ^a  

^a Royal Australian Navy   (Australia)

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[No Author keywords available]

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EID: 85010387884     PISSN: 00205893     EISSN: 14716895     Source Type: Journal    
DOI: 10.1093/iclq/51.2.249     Document Type: Article

References (200)

1. JF Williams, quoted in George P Politakis, ‘UN-Mandated Naval Operations and the Notion of Pacific Blockade: Comments on Some Recent Developments’ (1994) 6 African Journal of International and Comparative Law 173 at 198.
2. Jane Gilliland Dalton, ‘The Influence of Law on Seapower in Desert Shield/Desert Storm’ (1993) 41 Naval Law Review 27 at 30
3. DP O'Connell provides a thorough and nuanced analytical account of belligerent—as opposed to League of Nations or UN mandated—blockade operations conducted by navies since 1918—see, DP O'Connell, The Influence of Law on Seapower (Manchester: Mancherster University Press, 1975; chs 8–10).
4. For a similar account of the belligerent conduct of blockades, extending back into the 1800s, see Thomas David Jones, ‘The International Law of Maritime Blockade—A Measure of Naval Economic Interdiction’ (1983) 26 Howard Law Journal 759
5. see also Lois Fielding, Maritime Interception and UN Sanctions: Resolving Issues in the Persian Gulf War, the Conflict in the Former Yugoslavia, and the Haiti Crisis (London: Austin & Winfield 1997, 19–31). As my focus is upon interdiction operations in the context of UN Charter Chapter VII peace support operations, I will examine only UN-mandated naval interdictions. This body of operational experience is distinct—both legally and practically—from the law and practice of ‘belligerent’ blockades, such as those of the Napoleonic Wars, the First and Second World Wars, the Vietnam War, and the Iran-Iraq War. The belligerent form of blockade is more properly understood as an aspect of the Law of Naval Warfare and the Law of Neutrality, not as part of the Law of UN Charter Chapter VII Peace Support Operations.
6. The aim of naval interdiction is, ultimately, to put pressure on the target state by engaging in varying levels of ‘economic and operational strangulation’ —Jones, Maritime Interception and UN Sanctions: Resolving Issues in the Persian Gulf War, the Conflict in the Former Yugoslavia, and the Haiti Crisis, 762.
7. The practical importance of the concept of naval blockade was even more significant prior to railways, when shipping accounted for closer to 100 per cent of world trade. ‘Blockade law’ is clearly a product of several hundred years of custom—see Jones, Maritime Interception and UN Sanctions: Resolving Issues in the Persian Gulf War, the Conflict in the Former Yugoslavia, and the Haiti Crisis, 761.
8. Quoted in Fielding, Maritime Interception and UN Sanctions: Resolving Issues in the Persian Gulf War, the Conflict in the Former Yugoslavia, and the Haiti Crisis, 9–10.
9. Politakis, Maritime Interception and UN Sanctions: Resolving Issues in the Persian Gulf War, the Conflict in the Former Yugoslavia, and the Haiti Crisis, 200–1
10. The migration of meaning in such dualist concepts is a slow process, however, and periods in which both ‘meanings’ still hold significance will always exist. Thus despite the early twentieth-century tendency to define it as a measure of peaceful diplomatic coercion, blockade has always maintained an independent legal ‘existence’ as a weapon of war—see, for example, the thread of belligerency linking the Paris Declaration Respecting Maritime Law 1856 (‘Privateering is and remains, abolished; The neutral flag covers enemy's goods, with the exception of contraband of war
11. Blockades, in order to be binding, must be effective, that is to say, maintained by a force sufficient really to prevent access to the coast of the enemy’), the London Declaration 1909 (further regulating the law and conduct of blockade)
12. Louise Doswald-Beck (ed), San Remo Manual on International Law Applicable to Armed Conflicts at Sea (Cambridge: Cambridge University Press, 1995) (at paras 92–104, which update blockade law and practice in order to govern—for example—means other than ‘surface ships lying just off the coast’, such as submarines etc).
13. See generally, J Ashley Roach, ‘The Law of Naval Warfare at the Turn of Two Centuries’ (2000) 94:1 American Journal of International Law 64 at 69–72
14. see also John Reeve, ‘The Rise of Modern Naval Strategy c.1580–1880’, in David Stevens and John Reeve (eds), Southern Trident: Strategy, History and the Rise of Australian Naval Power (Sydney: Allen & Unwin, 2001), 14, who records the long history of blockade as a weapon of war, particularly during the Napoleonic era—‘Blockade, not fleet action, was the main strategic weapon of the eighteenth-century Royal Navy. As Brian Lavery has observed, for every hour in battle, weeks and months were spent on blockade. This was demanding work which wore down ships and men. But it undermined the morale and seamanship of the French while effectively denying them a naval strategy.’
15. UNSC Resolution 217 (1965) on The Question of Southern Rhodesia; para 8.
16. The Question of Southern Rhodesia, para 1.
17. UNSC Resolution 221 (1966) on The Question of Southern Rhodesia, paras 1, 5.
18. See generally, Fielding, The Question of Southern Rhodesia, 240.
19. Jochen Frowein underlines this issue in his commentary on UN Charter Art 42 and its reference to ‘blockade’, when he notes that the Art 42 ‘concept of a blockade is not to be understood in a technical law-of-war sense. At issue is rather the effective sealing-off of particular coasts or land areas through a military action. An example of a measure constituting a blockade [in the Art 42 sense]—without determining here whether it was undertaken pursuant to Art 42—was the inspection of tankers which could have had oil for Rhodesia on board, carried out by the British navy on the basis of SC Res 221 of 9 Apr 1966’ (the Beira Patrol). He also cites the Kuwait blockade (UNSC Resolution 661) as another example of a UN mandated ‘blockade’ which is not, in the technical law-of-war sense, a ‘blockade’ —See Jochen Frowein, ‘Arts 39–43’, in Bruno Simma (ed), The Charter of the United Nations: A Commentary (Oxford: Oxford University Press, 1994), 605–39, at 632.
20. As Lois Fielding notes, there is a need for ‘flexibility in the assessment of lawfulness’ of new types of naval operations, and new forms of traditional naval operations such as interdiction. Fielding goes on to quote WL Martin's advocacy ‘against measuring the legality of innovative naval operations against a set of rigid defining criteria’ —Fielding, The Charter of the United Nations: A Commentary, 9.
21. Malcolm N Shaw, International Law, 4th edn (Cambridge: Cambridge University Press, 1997), 854.
22. WL Martin quoted in, Fielding, International Law, 10.
23. Charter of the United Nations (1945), Art 40.
24. Nigel D White, ‘The UN Charter and Peacekeeping Forces: Constitutional Issues’, International Peacekeeping, vol 3, no 4, Winter 1996, 52–3. Founded in an examination of the basis of the ONUC mandates and UNSC Resolution 161, 27 Feb 1961 on the Congo, White argues convincingly that ‘it would be best to summarise ONUC's actions as having as their constitutional basis the enforcement of provisional measures under Art 40 …’. This position is not unchallenged, however.
25. Jochen Frowein, ‘Arts 39–43’, 619, for example, argues that Art 40 should not be viewed as an authority for the deployment of peacekeeping forces, because Art 42 is the general authority for UNSC uses of force, of which peacekeeping forces are one subset. He does recognise, however, that a range of scholars—citing Rosalyn Higgins and Oscar Schachter—and even the then UN Secretary-General during the Congo Crisis, have made persuasive arguments supporting the UNSC's capacity to create peacekeeping forces using its Art 40 authority and powers.
26. Similarly, Boutros Boutros-Ghali, An Agenda for Peace, Department of Public Information, United Nations, New York, 17 June 1992 (UN Doc A/47/277-S/24111); para 44, indicates that peacekeeping forces can be created under Art 40.
27. For a brief discussion of the ONUCA (UN Observer Group in Central America) monitoring operation, see Sally Morphet, ‘UN Peacekeeping and Election Monitoring’, in Adam Roberts and Benedict Kingsbury (eds), United Nations, Divided World: The UN's Roles in International Relations, 2nd edn (Oxford: Clarendon Press, 1994), 183–239.
28. Hilaire McCoubrey and Nigel D White, The Blue Helmets: Legal Regulation of United Nations Military Operations (Aldershot: Dartmouth, 1996), 51.
29. White, The Blue Helmets: Legal Regulation of United Nations Military Operations, 53
30. see also Elgin Clemens, ‘No Peace to Keep: Six and Three Quarters Peacekeepers’, (1993) 26:1 New York University Journal of International Law and Politics 107. Clemens argues for a new form of ‘Chapter Six-and-three-quarters’ peacekeeping with more robust Rules of Engagement than normal ‘Blue Helmet’ deployments enjoy, but ‘only after a Chapter Seven force has either silenced or significantly reduced the gunfire’ —at 140.
31. Charter of the United Nations (1945), Art 41.
32. Alfred H.A. Soons, ‘A “New” Exception to the Freedom of the High Seas: The Authority of the UN Security Council’, in TD Gill and WP Heere (eds), Reflections on Principles and Practice of International Law (The Hague, Kluwer Law International, 2000), 208.
33. Bardo Fassbender, ‘The United Nations Charter As Constitution of the International Community’ (1998) 36:3 Columbia Journal of Transnational Law 529 at 614
34. see also, Soons, Columbia Journal of Transnational Law, 208.
35. Politakis notes this issue—Politakis, Columbia Journal of Transnational Law, 191–3.
36. Soons, Columbia Journal of Transnational Law, 213.
37. See UNSC Resolution 787 (1992) on The Former Republic of Yugoslavia; para 12
38. UNSC Res 820 (1993) on The Former Republic of Yugoslavia; para 29
39. UNSC Res 875, 16 Oct 1993 on Haiti; para 1
40. UNSC Res 917, 6 May 1994 on Haiti; para 10
41. see also Soons, UNSC Res, 213.
42. Politakis, UNSC Res, 206.2
43. Charter of the United Nations (1945); Art 42.
44. Shaw, Charter of the United Nations, 859.
45. Politakis, Charter of the United Nations, 196.
46. Soons, Charter of the United Nations, 213
47. see, eg, UNSC Resolutions 787 (1992) and 820 (1993) on The Former Republic of Yugoslavia
48. UNSC Resolutions 875 (1993), and 917 (1994) on Haiti.
49. UNSC Resolution 665, 25 Aug 1990 on The Situation in Iraq and Kuwait; para 1.
50. Higgins, quoted in Politakis, The Situation in Iraq and Kuwait, 196—my italics.
51. Benedetto Conforti, ‘Non-Coercive Sanctions in the United Nations Charter: Some Lessons from the Gulf War’, (1991) 2 European Journal of international Law 110 at 113. Conforti argues that Art 41 measures should also be available for implementation by UN forces ‘preventively’, and not only—as is currently the case (with the preventive deployment to Macedonia being the exception)—after breaches of international law have already been committed. Under UNSC Resolution 795 of 11 Dec 1992, the UNSC authorised a preventive deployment of UNPROFOR forces to assist in stabilising Macedonia in order to prevent its disintegration.
52. This force then handed over to the tailored UNPREDEP (UN Preventive Deployment) force on 31 Mar 1995— see Snezana Trifunovska, ‘Preventive Peacekeeping and the Case of the Former Yugoslav Republic of Macedonia’, International Peacekeeping, vol 4, nos 1–2, (1997) 6
53. see also Burns, ‘Preventive Deployment and Diplomacy in Practice’, 42–5
54. S.T. Ostrowski, ‘Preventive Deployment of Troops as Preventive Measures: Macedonia and Beyond’ (1997–1998) 30 New York University Journal of International Law and Politics 793.
55. Ruth Lapidoth quoted in Politakis, New York University Journal of International Law and Politics, 196
56. see also Dalton, New York University Journal of International Law and Politics, 31–46.
57. Dalton, New York University Journal of International Law and Politics, 40.
58. New York University Journal of International Law and Politics, 43.
59. Politakis, New York University Journal of International Law and Politics, 191.
60. See generally Vera Gowlland-Debbas, Collective Responses to Illegal Acts in International Law: United Nations Action in the Question of Southern Rhodesia (London: Martinus Nijhoff Publishers, 1990).
61. UNSC Resolution 217, 20 Nov 1965 on Southern Rhodesia; para 1.
62. UNSC Resolution, para 4.
63. UNSC Resolution, para 5.
64. UNSC Resolution 217, 20 Nov 1965 on Southern Rhodesia, para 8.
65. UNSC Resolution, para 9.
66. UNSC Resolution 221, 9 Apr 1966 on Southern Rhodesia; para 1.
67. UNSC Resolution, para 5.
68. D.J. Harris (ed), Cases and Materials on International Law, 5th edn (London: Sweet & Maxwell, 1998), 965.
69. Politakis, Cases and Materials on International Law, 202–3
70. see also O'Connell's discussions of the Beira Patrol, particularly at O'Connell, Cases and Materials on International Law, 174–5.
71. Shaw, Cases and Materials on International Law, 859.
72. Frowein, ‘Arts 39–43’, 615–16.
73. Harris, ‘Arts 39–43’, 966.
74. See, however, Frowein, ‘Arts 39–43’, 624–5. Frowein argues that UNSC Resolution 221, because it expressly authorises the use of force, should be viewed as founded in Art 42, but he notes that this is probably not the generally held opinion on this Resolution and its implementation.
75. Politakis, ‘Arts 39–43’, 206.
76. ‘Arts 39–43’.
77. UNSC Resolution 221 (1966) on Southern Rhodesia, para 8.
78. Soons, UNSC Resolution, 217.
79. UNSC Resolution 661, 6 Aug 1990 on Iraq-Kuwait, para 3.
80. Dalton, UNSC Resolution, 33.
81. See Dalton for a full discussion of the diplomatic and legal analysis surrounding this issue of the Art 51—Resolution 661 interface with respect to the Iraq-Kuwait crisis—Dalton, UNSC Resolution, 34–44.
82. Frowein discusses the Art 42-Art 51 interface in the Kuwait situation in terms of its being a political requirement, reflective of the United States' desire to keep an Art 51 authority ‘intact’ as an alternative basis for military involvement in the Kuwait-Iraq conflict—Frowein, ‘Arts 39–43’, 634–5.
83. Robert Stephens Staley III, The Wave of the Future: The United Nations and Naval Peacekeeping, International Peace Academy Occasional Papers (Boulder: Lynne Rienner Publishers, 1992), 37–8.
84. UNSC Resolution 665, 25 Aug 1990, on Iraq-Kuwait, para 1.
85. See also Dalton, UNSC Resolution, 44–6
86. Shaw, UNSC Resolution, 861.
87. UNSC Resolution 665 (1990), on Iraq-Kuwait, para 1.
88. Dalton, UNSC Resolution, 44–5.
89. See also Soons, UNSC Resolution, 216.
90. UNSC Resolution 665 (1990), on Iraq-Kuwait, para 2.
91. UNSC Resolution, para 3.
92. See, eg, Michael Pugh et al, ‘Chronology of Relevant Circumstances’, in Michael Pugh (ed), Maritime Security and Peacekeeping: A Framework for United Nations Operations (Manchester: Manchester University Press, 1994), 261–2. The first Russian warships to be involved in the interdiction force were the Udaloy Class destroyer Admiral Vinogradov and a supporting tanker.
93. Politakis, Maritime Security and Peacekeeping: A Framework for United Nations Operations, 178.
94. Maritime Security and Peacekeeping: A Framework for United Nations Operations, 178–9.
95. By mid-Nov 1990, almost 150 warships were operating in and around the Gulf, and had intercepted 3,630 merchant vessels, boarding 417 and diverting 16—Staley, Maritime Security and Peacekeeping: A Framework for United Nations Operations, 38.
96. During the actual hostilities phase of the Gulf War, coalition forces challenged over 7,500 vessels, boarded and inspected more than 950, and diverted approximately 50 vessels carrying over one million tons of illegal cargo—John Astley III and Michael N. Schmitt, ‘The Law of the Sea and Naval Operations’ (1997) 42 Airforce Law Review 119 at 144–6.
97. This equated to an investigation rate of 30–40 merchant vessels and 5–10 consequent boardings daily—Staley, Airforce Law Review, 38.
98. In the two years following the war, the Resolutions 661 and 665 multinational naval force intercepted over 17,800 vessels, boarded approximately 7,400, and diverted 410 ships carrying contraband— Staley, Airforce Law Review, 41.
99. Soons, Airforce Law Review, 217–18.
100. This cachet of powers reflects those traditionally available to warships engaged in belligerent blockade—see, eg, O'Connell, Airforce Law Review, 171.
101. This list of powers exercisable when engaged in UN, or belligerent, interdiction operations, or in other inspection and policing type operations—such as fisheries surveillance—is also incorporated into the operational manuals of many navies—see, eg, Astley and Schmitt, Airforce Law Review, 144 at n 100
102. see the San Remo Manual; paras 118–24, regarding a belligerent's right to visit and search enemy merchant vessels during hostilities
103. see also Roach, San Remo Manual, 73.
104. Laura Silber and Allan Little, Yugoslavia: Death of a Nation (Harmondsworth: Penguin, 1997), 172–4.
105. Silber and Little, Yugoslavia: Death of a Nation, 175.
106. UNSC Resolution 713, 25 Sept 1991 on The Situation in Yugoslavia; para 6.
107. UNSC Resolution 724, 15 Dec 1991 on The Situation in Yugoslavia; para 5b.
108. See UNSC Resolution 749, 7 April 1992 on The Situation in Yugoslavia
109. see also Shaw, International Law, 868–9.
110. UNSC Resolution 757, 30 May 1992 on The Situation in the Former Republic of Yugoslavia; para 4a. The Resolution did, however, list a series of specific exceptions to this embargo with respect to trans-shipment through the Former Republic of Yugoslavia (para 6), and humanitarian aid (para 13f).
111. Fielding, The Situation in the Former Republic of Yugoslavia, 187–8, 242. As Fielding notes, Resolution 787 ‘provided the next step in the racheting up of pressure on Serbia and Montenegro’.
112. UNSC Resolution 787 (1992) on The Situation in the Former Republic of Yugoslavia, para 9.
113. The Situation in the Former Republic of Yugoslavia, para 12.
114. UNSC Resolution 820 (1993) on The Former Republic of Yugoslavia, para 22a-c
115. see generally Shaw, The Former Republic of Yugoslavia, 861–3.
116. Soons, The Former Republic of Yugoslavia, 218.
117. Harris, The Former Republic of Yugoslavia, 899
118. Dalton, The Former Republic of Yugoslavia, 51.
119. UNSC Resolution 820 (1993) on The Former Republic of Yugoslavia, para 28.
120. The Former Republic of Yugoslavia, para 29.
121. See generally Soons, The Former Republic of Yugoslavia
122. Fielding, The Former Republic of Yugoslavia, 262–4
123. Hampson, ‘Naval Peacekeeping’.
124. Politakis also raises this issue, but seemingly more in terms of explicit versus implied authorisations, rather than in the wider terms of a permissible versus not permissible paradigm. See, eg, Politakis, ‘Naval Peacekeeping’, 205.
125. Soons, ‘Naval Peacekeeping’, 219.
126. Silber and Little, ‘Naval Peacekeeping’, 269–71.
127. See also, eg, para 3 of Resolution 820, expressing ‘its grave concern at the refusal so far of the Bosnian Serb party to accept’ the interim peace plan, while ‘welcoming’ its acceptance by ‘two of the Bosnian parties’ —UNSC Resolution 820 (1993) on The Former Republic of Yugoslavia, paras 2–3.
128. See Soons, The Former Republic of Yugoslavia, 219 n 48.
129. The NATO/WEU/UN interdiction procedure was essentially the same as that employed during the Iraq-Kuwait interdiction operation. See, eg, Fielding, The Former Republic of Yugoslavia, 254–9.
130. Fielding, The Former Republic of Yugoslavia, 290.
131. The Former Republic of Yugoslavia, 286.
132. Politakis, The Former Republic of Yugoslavia, 182–5.
133. Shaw, The Former Republic of Yugoslavia, 403.
134. This sovereignty-minus nature of the regime might, however, occasionally be subject to a ‘re-accretion’ of coastal state sovereignty. See, eg, Passage Through the Great Belt (Finland v Denmark) (1991) ICJ Reps 12.
135. See also the most recent potential ‘bridge’ case— Fabio Spadi, ‘The Bridge on the Strait of Messina: “Lowering” the Right of Innocent Passage?’ (2001) 50 ICLQ 411.
136. Bernard H Oxman, ‘The Regime of Warships Under the United Nations Convention on the Law of the Sea’ (1984) 24:4 Virginia Journal of International Law 809 at 850.
137. See Rudiger Wolfrum, ‘The Legal Order for the Seas and Oceans’, in Myron H Nordquist and John Norton Moore (eds), Entry into Force of the Law of the Sea Convention (1994 Rhodes Papers), (The Hague: Martinus Nijhoff Publishers, 1995), 167, 174.
138. Indeed, for some scholars, the right of Innocent Passage is now part customary international law—see generally DP O'Connell, The International Law of the Sea (vol I), (ed Ivan Shearer), (Oxford: Clarendon Press, 1982), 263–89
139. R.R. Churchill and AV Lowe, Law of the Sea, 3rd edn (Manchester: Manchester University Press, 1988), 81–7.
140. As the ICJ observed in the Nicaragua Case (1986), the LOSC Innocent Passage regime ‘does no more than codify customary international law on this point’ — Nicaragua Case (1986) ICJ Reps. 13 at 111.
141. See also Charles E Pirtle, ‘Military Uses of Ocean Space and the Law of the Sea in the New Millennium’ (2000) 31:1–2 Ocean Development and International Law 7 at 19—Pirtle argues that the unqualified right of warships to a regime akin to Innocent Passage has been an accepted part of Western maritime practice since the early nineteenth century.
142. This raises the prospect of an existence parallel with, but separate to, its existence under treaty law—see Fassbender, ‘UN Charter as Constitution’, 590.
143. Delaying passage is permitted only under certain circumstances—in normal stopping and anchoring incidental to passage, as a result of force majeure, or to assist those in distress at sea. See also J Ashley Roach, art cit (1990) American Society of International Law (Proceedings of the Eighth Annual Meeting, Washington DC, 28–31 Mar 1990), 294
144. see also Astley and Schmitt, American Society of International Law, 132, where they discuss the ‘right of assistance entry to the Territorial Sea’, asserting that this customary right allows a passing warship to delay passage in another state's Territorial Sea, and to take such otherwise ‘prejudicial’ actions as launching helicopters, to render assistance to a distressed vessel whose location is known. Further, it may do so—but arguably only in the absence of a veto from the coastal state—with no further notice. However, because the coastal state has primary responsibility for search and rescue in its Territorial Sea, the warship must not launch aircraft to conduct a search unless it has the coastal state's permission.
145. Law of the Sea Convention 1984; Art 19(2)(a).
146. Some debate remains as to whether the Art 19(2) list is exhaustive or merely indicative. Geoffrey Kinley, ‘The Law of Self-Defence, Contemporary Naval Operations, and the United Nations Convention on the Law of the Sea’, in ED Brown and Robin R Churchill (eds), The UN Convention on the Law of the Sea: Impact and Implementation (Proceedings of the Law of the Sea Institute Nineteenth Annual Conference, 1985) (Honolulu: The Law of the Sea Institute, 1987), 13, eg, refers to this list of acts being inter alia, thus proposing that it is indicative only, rather than exhaustive.
147. Similarly, Shaw declares that Art 19(2) only lists examples of prejudicial acts—Shaw, The UN Convention on the Law of the Sea: Impact and Implementation, 404.
148. Taking the opposite view, however, the signatories to the 1989 Joint Statement by the US and the USSR on Uniform Interpretation of Rules of International Law Governing Innocent Passage declared that ‘Art 19 of the Convention of 1982 sets out in para 2 an exhaustive list of activities that would render passage not innocent’ —extracted in Harris, The UN Convention on the Law of the Sea: Impact and Implementation, 405–6.
149. See also Astley and Schmitt, The UN Convention on the Law of the Sea: Impact and Implementation, 131 who similarly assert that the Art 19(2) list of prejudicial acts is ‘exclusive’.
150. Françoise J Hampson, Naval Peacekeeping, in Pugh (ed), The UN Convention on the Law of the Sea: Impact and Implementation (Manchester: Manchester University Press, 1994), 199.
151. Thomas A Clingan, The Law of the Sea: Ocean Law and Policy (London: Austin & Winfield, 1994), 99.
152. Oxman, The Law of the Sea: Ocean Law and Policy, 853—my italics
153. Churchill and Lowe, The Law of the Sea: Ocean Law and Policy, 81–7
154. see also O'Connell, The Law of the Sea: Ocean Law and Policy, 271–4. O'Connell and Shearer note that modern attention and interpretation has ‘concentrated on the “innocence” rather than the right of passage’.
155. Oxman, The Law of the Sea: Ocean Law and Policy (1997) 36:1–2 Columbia Journal of Transnational Law 399 at 415
156. see also 426–8 where Oxman discusses the human rights implications of the LOSC's use of the phrase ‘recognised rights’ in the Law of the Sea Convention 1982, Art 230.
157. Law of the Sea Convention 1982, Art 21(1).
158. Law of the Sea Convention, Art 19(1).
159. Law of the Sea Convention, Art 19(2)(a).
160. UNSC Resolution 820 (1993) on The Situation in the Former Republic of Yugoslavia, para 28.
161. Dalton, The Situation in the Former Republic of Yugoslavia, 52—my italics.
162. The Situation in the Former Republic of Yugoslavia.
163. See generally Hampson, The Situation in the Former Republic of Yugoslavia.
164. Soons, The Situation in the Former Republic of Yugoslavia, 220.
165. Boutros-Ghali, The Situation in the Former Republic of Yugoslavia, Department of Public Information, United Nations, New York, 3 Jan 1995 (U Doc A/50/60-S/1995/1), para 33. The other two principles, he continues, are impartiality, and non-use of force.
166. Benedict Kingsbury, ‘Sovereignty and Inequality’ (1998) 9 European Journal of International Law 599 at 609–10.
167. European Journal of International Law, 623.
168. White, European Journal of International Law, 43.
169. Ramesh Thakur, ‘From Peacekeeping to Peace-Enforcement: The UN Operation in Somalia’, Journal of Modern African Studies, vol 32, no 3, Sept 1994, 394—my italics.
170. Mats R Berdal, ‘Military Aspects of UN Peacekeeping’, in Daniel Warner (ed), New Dimensions of Peacekeeping (Dordrecht: Martinus Nijhoff Publishers, 1995), 133.
171. Shaw, New Dimensions of Peacekeeping, 871.
172. See, eg, ‘Wars of Intervention: Why and When to Go In’, in The Economist, 6 Jan 2001, 17–19
173. Bruno Simma, The Economist (1999) 10 European Journal of International Law 1 at 6–14—Simma characterises NATO's actions in Kosovo as falling just on the wrong side of the distinction between legality and illegality in the use of force—‘only a thin red line separates NATO's action in Kosovo from international legality’.
174. See generally, Antonio Cassese, ‘Ex Iniuria Ius Ortur: Are We Moving Towards International Legitimation of Forcible Countermeasures in the World Community?’ (1999) 10 European Journal of International Law 23
175. Fernando Teson, Humanitarian Intervention: An Inquiry into Law and Morality, 2nd edn (New York, Transnational Publishers, 1997)
176. Fernando Teson, ‘Collective Humanitarian Intervention’ (1996) 17 Michigan Journal of International Law 323
177. Nigel White and Robert Cryer, ‘Unilateral Enforcement of Resolution 687: A Threat to Far?’ (1999) 29 California Western International Law Journal 243
178. Barry Benjamin, ‘Unilateral Humanitarian Intervention: Legalising the Use of Force to Prevent Human Rights Atrocities’ (1992–1993) 16 Fordham International Law Journal 120. The recent Kosovo intervention has provided a controversial, and provocative, backdrop to a wide scale recapitulation and progressive development of these differing views and approaches.
179. See, in particular, several of the submissions to the House of Commons Foreign Affairs Committee Kosovo Inquiry (Fourth Report, June 2000), particularly Ian Brownlie and CJ Apperley, ‘Kosovo Crisis Inquiry: International Law Aspects’ (2000) 49 International and Comparative Law Quarterly 878 (NATO actions were clearly not legal)
180. Christine Chinkin, ‘The Legality of NATO's Action in the Former Yugoslavia (FRY) Under International Law’ (2000) 49 ICLQ 910 (NATO actions not prima facie legal, and cumulative effect of arguments relating to UNSC knowledge and acquiescence, and the—admittedly controversial—doctrine of humanitarian intervention, whilst persuasive, still place the actions just on the wrong side of the thin line between legality and illegality)
181. Christopher Greenwood, ‘International Law and the NATO Intervention in Kosovo’ (2000) 49 ICLQ 926 (NATO actions were legitimate in accordance with an international legal right of humanitarian intervention)
182. Vaughan Lowe, ‘International Legal Issues Arising in the Kosovo Case’ (NATO actions not prima facie legally justified, but it is desirable that such a justification be allowed to emerge in customary international law).
183. See also Dino Kritsiotis, ‘The Kosovo Crisis and NATO's Application of Armed Force Against the Federal Republic of Yugoslavia’ (2000) 49 ICLQ 330.
184. White, ICLQ, 44–8.
185. Fielding, ICLQ, 100. The quote is from Fielding's 1991 interview with Michael Hinkley, United States Navy Judge Advocate General's Corps.
186. See also, Fassbender, ICLQ, 568, 581.
187. Note, however, that some scholars see this requirement for non-members to comply as binding for different reasons. Frowein, eg, argues that non-Member states are bound to a UNSC international peace and security resolution not by the fact of the UNSC's ‘deciding’ upon the Resolution, ‘but rather from the character of the underlying legal norm’ which the Resolution in question supports—Frowein, ‘Arts 39–43’, 627.
188. UNSC Resolution 757 (1992) on The Former Republic of Yugoslavia.
189. For their full argument, which is about declared neutrality in the context of UNSC mandated interdiction operations and UN Charter Arts 25 and 49, see, Astley and Schmitt, The Former Republic of Yugoslavia, 147—‘The dilemma vis-à-vis neutrality is that once the Security Council has acted, member States are obligated to “accept and carry out (its) decisions” and “join in affording mutual assistance in carrying out the measures (it has) decided on”’. Thus a fair argument can be made that a nation cannot simply declare itself neutral and sit by on the sidelines during Chapter VII operations.’
190. Fielding, The Former Republic of Yugoslavia, 263.
191. UNSC Resolution 1264, 15 Sept 1999 on East Timor, para 3.
192. UNSC Resolution 1264, 15 Sept 1999 on East Timor, preamble.
193. UNSC Resolution, para 4.
194. Dale Stephens, ‘INTERFET—Maritime Legal Issues’, paper presented at a conference on The Maritime Dimensions of East Timor, 14 June 2000, Canberra, ACT, Australia, 2.
195. Robin Warner, Interview, 18 June 2001.
196. Stephens, Interview, 2—my italics. In this situation, Indonesia was the third party, and the waters concerned were Archipelagic Waters, which have a character very similar, although not identical to, that of a Territorial Sea.
197. UNSC Resolution 1264 (1999) on East Timor, para 5.
198. Warner, UNSC Resolution, paper presented at a conference on The Maritime Dimensions of East Timor, 14 June 2000, Canberra, ACT, Australia; 1—my italics.
199. paper presented at a conference on The Maritime Dimensions of East Timor, 2–3—my italics. It is important to note this distinction: The Exchange of Notes should properly be characterised as a confirmation and more detailed elucidation of the access rights inherent in the UNSC Resolution, not as the genesis or instrument of conferral of these rights.
200. See also, for a wider discussion of the issue of East Timor's prospective maritime boundaries—Victor Prescott, ‘The Question of East Timor's Maritime Boundaries’, IBRU Boundary and Security Bulletin, vol 7, no 4, Winter 1999–2000, 72–81.