AmericanAdmiraltyBooks2: THE ENDURING PRINCIPALS OF MARITIME INTERNATIONAL LAW

THE ENDURING PRINCIPLES OF MARITIME INTERNATIONAL LAW

An E-Book derived from THE AMERICAN ADMIRALTY BUREAU'S GUIDE TO THE ENDURING PRINCIPLES OF INTERNATIONAL MARITIME LAW ISBN 1-879778-28-9, copyright 1996 redeveloped under derivative rights 2013. Scroll down to read on line.

This book is now a print on demand product of Helios Ruehls, Inc Marine Division for information on the purchase of the printed product E mail aabmain@aol.com

SYMBOLS OF MARITIME INTERNATIONAL LAW

Image result for Images of the oar mace of admiralty

Image sources: U.S. Govt.

Depicted above are a judge's gavel, the port side view of the USCGC EAGLE, training ship of the U.S. Coast Guard one of the oldest dedicated maritime law enforcement agencies in the world, and an example of the "Oar Mace of Admiralty" The Oar Mace, symbol of admiralty law was once carried held aloft as the English Courts of Admiralty entered in solemn procession into the court room. The same oar mace sadly led the procession of the execution party for condemned pirates to the special gallows established for such displays off the beach just beyond the high tide mark. Of course admiralty was not the first contributor to the growing body of international law. The early Greek city states had codes between and among themselves that amounted to "international law" that dealt with things more mundane and land based than the subjects of admiralty law. But as early as the Roman empire we find maritime subjects being addressed in the context of more than one nation state.

Once as a Coast Guard reservist I was assigned to deliver the annual training lecture on international law for our junior officers. I started the class by asking if anyone could define "international law". I was amazed by the responses coming from young college educated men which included some lawyers. Most simply didn't believe there was any such thing as international law. Korea wasn't that far behind us and Vietnam had just come to a regrettable conclusion. Everyone was focused on the the refusal of the various communists regimes to follow the Geneva Convention's Rules for the treatment of Prisoners of War. Yes everyone in the class had heard of "International Conventions" but their focus had been on the violation of the POW conventions. The group thinking was basically, what kind of a law is it that no one follows and breaks with total immunity? Personally I found that response from officers holding naval rank quite surprising despite the recent history of Communists abuses of the Geneva Conventions.

I reminded the class as mariners that in our harbor, outside of the class room door that week end ships of every nation showed exactly the same red, green and white navigation lights, with the same screening for arc of visibility, and the same nominal ranges as every other. Why was that? Coincidence? Hardly, the world's maritime nations have long agreed on ship lighting, sound signals, right of way rules, and rules to avoid collision in international waters via strictly enforced international conventions (treaties designed to be signed by multiple nations). Even a few nations that never signed the conventions none the less carried identical "running lights" because once enough nations had signed the conventions most national and international tribunals would accept the convention provisions as the 'traditional rule of international law." I asked the class why it is that airplanes fly in and out of airports all around the world and communicate with the towers in English, how did one language become accepted as the international language of commercial aviation? Once again via international convention. Why does your letter to friends in Europe , Africa, Asia , or Australia get right to their mailbox despite being mailed from the United States with postage purchased here; the international postal conventions.

Murder and burglary are against the law in every jurisdiction in the world. None the less these laws are ignored and murders and burglaries are happening in virtually every jurisdiction in the world all of the time. In some big American cities not one in five of such crimes ever results in a prosecution. Yet no one would argue that murder and burglary are not crimes having been decriminalized due to weak enforcement efforts. And so it is with the public law of nations. Some times it is clear that the violators are one jump ahead of enforcement efforts but the law still exists, it is sometimes formally codified as in the case of the international conventions, it exists as searchable precedent for many questions where there is no convention. Enforcement is most efficient in those cases such as the international rules to avoid ship collisions where the nations that signed the conventions then incorporate the rules into their own national legal systems. In other areas such as the Prisoner of War Conventions , and Rules of Armed Conflict Conventions the enforcement apparatus is not that clear cut or universally available. But it exists, war criminals were executed by international tribunals at the end of World War II. There have been some successful prosecutions of war criminals by international and national tribunals ever since.

We so often invoke "international law" in our opinion posts that we felt we should take some pains to inform our readers both naval and maritime professionals and general readers and water sportsmen alike of some of the basic and enduring principals of maritime international law. We thought we'd start with a series of posts. We will appreciate your comments as these proceed. If the majority are enjoying the posts and looking forward to them we will continue, if not we may move the discussion to one of our special interest pages, probably admiralty law after we've published a sufficient amount of material to constitute an effective introduction to the subject.

If you would like to read up on the subject we recommend :

AMERICAN ADMIRALTY BUREAU'S GUIDE TO THE ENDURING PRINCIPLES OF MARITIME INTERNATIONAL LAW by R.F. Bollinger ISBN 1-8799778-28-9.

This short paper back book is available at a very reasonable print on demand price from the the marine division of Helios Ruehls , Inc E mail aabmain@aol.com for information on obtaining a print copy. Our price (subject to change has been about $35 dollars we checked Amazon and they had only one used text in stock and were asking over $300. We have found this often to be the case with all of the publications of the American Admiralty Bureau Guides and Commentators. They are out of copyright and thus thought to be out of print. Some university presses have republished them as hard bound volumes for rather expensive prices. However every volume ever published is still available as a spiral bound soft cover print on demand book from the marine division of Helios Ruehls,i nc generally for under $45. Some of the Commentators are being updated by the original editor on line here in our AUTHORITATIVE LITERATURE section and may be read free on line. Helios Ruehls,Inc. Marine Division intends to update the American Admiralty Bureau's publications over time and has purchased exclusive derivitative rights . Helios Ruehls, Inc. Marine Division is the only publisher with exclusive access to the original authors and editors whoo have derivitative rights under copy right law.

Next installment, we will explore the definition and subdivisions of international law. Please watch for, read and comment on this series as it evolves.

Johnas Presbyter, Editor

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Hans Gieng's statute of "lady Justice", Bern Switzerland 15 1543

SO WHAT IS INTERNATIONAL LAW ANYWAY?

Glad you asked! International law is the system of rules generally observed and considered binding in the relations between nation states. It is sometimes referred to as the "law of nations". This system of rules and principles is well organized and can often be effectively cited as to sources much like national domestic law. It is based on treaty, custom, precedent and "...consensus of opinion as to justice and moral obligation , which civilized nations recognize as binding upon them in mutual dealings and relations." (Source: Black's Law Dictionary)

The Oar Mace of Admiralty

INTERNATIONAL LAW MAY BE SUBDIVIDED INTO AT LEAST THREE DISTINCT AREAS OF STUDY:

For convenience in this review we will subdivide International Law into three subdivisions. These are:

Public International Law (Law of Nations)
Private International Law ( Law of relations between commercial organizations and individuals contracted across international borders)
International Law of Utilities ( International regulation of postal activities, air and seaways, telecommunications, etc.) What we refer to as "International Utility Law impacts greatly on maritime activity. For example shipboard communications are heavily impacted by international telecommunications law, shipboard waste disposal is affected by international pollution accords. Mineral exploitation on the Outer Continental Shelves and deep seabed mining are subjects of such law. All three of these areas are of great importance in maritime activity. Maritime professionals must be concerned with the Public Law of Nations as these spell out such concepts as privileges and immunities of naval and merchant marine personnel, the law of armed conflict, boundaries between the high seas and the territorial seas, and many other issues of daily concern in maritime activity. The commercial shipping and naval communities are also impacted by Private International Law which governs the flow of international cargoes, contracts, and insurance. Shipboard communications as noted earlier are affected greatly by international telecommunications law. Shipboard waste disposal is affected by international pollution accords. Mineral exploitation on the Outer Continental shelves and the deep sea beds are subjects of international convention. SOME HISTORICAL BACKGROUND: The concept of International Law is not recent. The communications, transport, and weaponry advances of modern times have added immensely to the system's perceived importance, growth, and codification. The continuing developments in these areas in the twenty first century will continue to generate further growth in the system. However, the system has been around since ancient times. The Early Egyptians had treaties recognizing the soverignity of neighboring states. These agreements contained detailed arrangements for immigration, refugees, diplomatic exchanges, and some trade matters. One of the earliest examples of a "Law of armed Conflict" was the Code of Manu on the Indian subcontinent which may have been written as early as 500 B.C.. The Greek city states operated in close proximity to each other and were economically interdependent. Consequently, they devised a rather detailed system of formal rules governing their many mutual interests. Many modern ideas of International Law originated with these city states. The Greeks appear to be the first to embrace concise and codified methods of treaty interpretation. They provided for arbitration, and for the exchange and immunity of ambassadors. Much of what we call Public International Law evolved from the early Greek city state practices. By the early twentieth century International Law had expanded to government, public, and private international concerns. Freedom of the seas became an established concept after years of enforcement largely by English speaking navies. Postal, and later submarine cable agreements were established. Extradition treaties became widespread. By the early twentieth century people and products moved in a predictable and orderly manner across national borders, in times of peace. Unfortunately , issues related to war and peace such as sovereignty, national self determination, and national self defense were insufficiently developed to prevent two world wars and almost a half century of "Cold War". The emerging post cold war era and its attendant, but as yet unclear "New World Order" will of necessity spur development in these areas. One area that we see emerging is actually very old. China simply does not accept the existing World legal system for the high seas which establishes a relatively narrow band of 12 miles off of adjacent coastal states as the territorial sea of the coastal state. Adjacent coastal states also exercise certain limited rights and responsibilities subject to the innocent passage of world shipping in coastal bands that extend rarely more than 200 miles from a base line associated with the mainland. In these areas the adjacent coastal state is recognized as having the exclusive right to erect fixed platforms and permanently moored vessels for the exploitation of minerals and benthic (bottom dwelling) fisheries. The adjacent coastal state is also expected to assume responsibility for the enforcement of migratory ocean fish species treaties in that zone. But China claims a "closed sea", usurping islands and recognized water territories of its neighbors. Their position is little different from that of Spain in the 1400s through the early portions of the 1700s. Spain was at war with England and various allies for over 50 years at one point whole fleets were sunk and thousands of naval personnel killed on both sides before Spain agreed to the current legal regime. Will China have to be brought to alignment with accepted international law the same way? So far their only response to world pressure has been to shift most of their aggressive naval activity to its new super sized Coast Guard. Their Coast Guard muscles their neighbors aside instead of their Navy and now they point at the activity and tell anyone who will listen that they are "effectively administering" the areas. This would signal that china while aggressively attempting to steal territory from neighbors is more interested in perverting the existing law than making a stand on a long ago defeated concept. Tomorrow we'll examine the sources of International Law. Let us have your comments on this series please. Are you finding this of interest or should we switch it over our legal pages? ------------------------------------------------------------------------------------------------------------------------
SOURCES OF MARITIME INTERNATIONAL LAW

The Western World is basically divided into states having civil legal systems or common law systems. Under the civil code systems the law is defined by formal codes. Judges are bound by the letter of the code and basic principles of equity. In civil code states judges try for consistency in decisions through a principle referred to in some jurisdictions as "jurisprudence constance." Under this system, a judge is not bound by previous decisions of other justices including appellate justices although he will take such decisions into consideration. A judge always may be guided by the letter of the code and basic principles of equity.

Under the common law system, found inmost English speaking nations, the law is found in statutes passed by legislative bodies and the decisions of the judges are recorded under a principle known as Stare Decisis. The principle of stare decisis lends much more strength of precedent to decisions of judges, especially those at the final appellate level. Thus the rules for transactions not addressed by statute, and to some degree, defined "principles of equity" , appear in the recorded decisions of magistrates; "the common law".

Louisiana is the only civil law state in the American union. However because it is in the American union its system is sort of hybrid. There exists a very formal and concise civil code and a system of "jurisprudence constance". However, many maritime matters are heard in the Federal courts of the region where the common law and stare decisis prevails. Yet the Federal courts decide many maritime cases based on Louisiana law, custom, and practice.

Non-Western nations, such as some Islamic states, may have theocratic legal systems. In these nations religious leaders play a major judicial role. What would be cannon law in the West actually forms part of the civil and criminal law of the state. Such theocratic states have both formally codified and unwritten or "judge made" law. There are numerous other examples of non-Western systems but the idea of civil codes and common law illustrates the basic problem of all legal systems. Legal systems comprehensively must embrace the sum total of rules that apply to activity governed, but it is usually impossible to contain them all in writing. The chief difference between civil law and common law jurisdictions is the formality and weight given to the non-legislated law.

International law, whether public, private, or "utility", shares this problem with other legal systems. Being a world system it appears to be a blend of common law and civil code processes. However, like both of the more common systems of national law, International Law is largely codified. This means that the law can be found, identified, and quoted. There are instruments of international law.

The sources or instruments of International Law are:

Custom
Publicists
Court Decisions
International Instruments

International Instruments can be further subdivided into:

Conventions
Executive Agreements
Treaties
Diplomatic Correspondence

Custom as a source of International Law , where not clearly observable in practice, can usually be found in the work of publicists. Publicists are authors of written works on International Law who have been recognized by reference in court decisions. The sources of court decisions in International law are national and international. Standing international judicial bodies such as the International Court of Justice in the Hague, publish decisions that are highly valued as precedent. Ad hoc internationally sponsored arbitration courts and boards also publish decisions on an irregular basis. These decisions also are highly valued as precedent.

Unfortunately, the world seems divided over how forceful these decisions are. All responsible states agree the published decisions of these tribunals are important. Yet, virtually no nation views the decisions as controlling in all cases.

Also viewed as significant but not controlling are the decisions of national courts when these courts deal with international subjects. Yet, these decisions take on added weight when there is broad agreement on an issue among a majority of national courts.

International instruments include conventions, executive agreements, treaties, and diplomatic correspondence. Conventions are agreements between at least several states in the form of a multilateral treaty regulating some matter of common interest. In the maritime sector the submarine cable conventions serves as a typical example.

Agreements between heads of government , that are not ratified by the legislative branch, are called "executive agreements".

Treaties are formal instruments in the nature of a contract between sovereign states and are generally ratified by their legislative branches.

The "state departments" of various nations publish position papers on unsettled issues of international concern. When a fair number of states publish their opinions and a majority reflect consensus, that consensus may ultimately receive international sanction as declaratory of the principle involved. In citing such consensus, international tribunals refer to these state department publications as "diplomatic correspondence".

International Law is a rapidly evolving system. It appears more similar to the common law than to civil law in the complexity of its sources and codification. It is, however, well codified, ancient in origin, growing in volume, detail, force, and importance. One of its oldest, most effectively codified, and enforced areas is maritime international law. So hopefully we have disabused you of any notion that International law is just some sort of pipe dream. In our next exploration we will start to examine important areas of International law from the maritime view point starting with the concept of sovereignty.

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THE CONCEPT OF SOVEREIGNTY IN MARITIME INTERNATIONAL LAW

INTRODUCTION:

Navies exist to protect, defend, and project sovereignty. Legitimate mariners work for a sovereign state. Sovereign states, in cooperation with other sovereign states, establish the international order. Under the orders of the sovereigns, navies enforce International Law. Navies, coast guards, and merchant fleets are the creatures of the sovereigns. None but sovereign states may have these. So "men of warsmen" and coast guardsmen are in the business of protecting, defending, and projecting sovereignty while merchant men carry the commerce of the sovereigns. Now there are certain other types of vessels out there on the ocean, some are pursuing scientific research, or exploring for or extracting oil, or engaged in fishing, but all must be registered with a sovereign nation, fly its flag and carry its papers. There are no exceptions, non governmental organizations like Green Peace must have their ships registered with some nation. In the recent case of the Green Peace's ARCTIC SUN, now in the custody of the Russian Border Guards the ship was registered in the Netherlands. By operation of customary international law ships without a national identity are "stateless". Stateless ships are illegal and automatically suspected of being engaged in piracy or the slave trade.

Every properly commissioned naval vessel on earth has, under international law the right, duty, and obligation of "close approach" in order to detect and suppress piracy and the slave trade, which we assure you are both alive and operating today.

For much of the nineteenth through the first half of the twentieth century, most of the enemies that sea service personnel faced were in the service of their sovereigns. Prior to the development of steam ships and radio, sailors often faced international outlaws in the form of pirates, and in some cases ,virtual pirate states. Today, after more than a century, sailors in some parts of the world, face enemies that are not sponsored by legitimate sovereigns. Marine terrorism and piracy have been on the rise since the early 1990s. Terrorism is often supported through quasi state-like organizations and clandestinely sponsored by cooperating states. The pirate state similar to the old Barbary Coast princedoms is still with us today, though more careful to conceal its links to the actual outlaws.

Legitimate sailors in the service of a sovereign deal with other sailors in the service of a belligerent sovereign in one fashion; and with pirates and terrorists in quite another. It behooves all mariners to understand this concept of sovereignty.

What then is sovereignty? Sovereignty is a characteristic of nations, often referred to in International law as "states". The use of the term "state" connotes the governmental aspect of nationhood, as opposed to the cultural implications of the word "nation". Given that some less than fully sovereign geopolitical entities are referred to as "states", such as the various "states" of the United States, Mexico, and Brazil, some writers refer to "nation states" to distinguish the difference. Most instruments of International Law, when they refer to "states" mean "nation states".

So "state" in International law is a permanently organized society, effectively governed within a fixed territory. Within that territory such government and people are free from the control of any other state, and free to pursue the rights, duties and obligations of states imposed by International Law.

A state must have a government although it exists independently of the government of the moment. States are not extinguished by a change of ruling parties, constitutions, or even violent revolution. Government like organizations exist in the world such as the PLO, yet these are not states, though they aspire to be. A prime requisite of a sovereign state is that it must possess territory. The territory may encompass an entire continent such as Australia, or a golf course sized parcel within a surrounding urban area like the Vatican. Under International Law the size of the territory is not important to the concept of sovereignty . It is the definiteness of the territory that counts. Control must be exercised within the territory. Other sovereigns must know where the states control begins and ends. States may gain or lose territory without losing their sovereignty .

One way to lose territory is to fail to exercise control over a portion that is coveted by other sovereigns. Hence an important activity of many navies and coast guards in the world is sovereignty patrol.

This is the source of the problems in the China seas that we so often address in our series of posts titled "HOW FAR WILL THE DRAGON SWIM ? " China covets the exclusive economic zones and island territories of its neighbors which in fact are clearly defined in the international instrument called the United Nations Convention of the Law of the Sea and routinely patrolled by Philippine, Japanese, and Vietnamese navies and coast guards. When the dispute started in the 1980s China simply opened fire on and killed sixty some odd unarmed Vietnamese sailors for the offense of planting the Vietnamese flag on a semi submerged reef within their recognized EEZ. At the time Vietnam was rather friendless in the world and China paid no price for these senseless murders. By the way we have links to that video elsewhere on this web site. China exhibited more caution when bullying the Philippines and Japan. Increasingly China in recent years relied on the law enforcement vessels of its various maritime agencies to dash in and engage in "presence" activities within their neighbors waters, with drawing on the approach of the forces of the true sovereigns. Recently they combined a number of these maritime law enforcement agencies into the world's larges "Coast Guard" and gave the resulting fleet the title of the Chinese Coast Guard. The Chinese Coast Guard competes daily with the navies and coast guards of Japan, the Philippines, Vietnam and others to demonstrate that China exercises "effective control" over the China Seas from the mainland of China right up to the western beaches of the Philippine main islands. Out in the international waters between the actual recognized territorial seas of China and her neighbors the Chinese Coast Guard routinely meets and greets international shipping, welcoming them by voice radio to the "territorial waters of China and announcing that they will be escorting their "guests " for a while. The message is just plain silly in terms of existing international law but all navies and coast guards as explained earlier have the "right of close approach" so few contest the activity of the Chinese vessel. These escort activities are routinely video taped and recorded. China has filed a law suite with the UN's sea tribunal actually claiming the entire China Seas and all of their smaller and mostly uninhabited islands regardless of which recognized exclusive economic zone or even territorial sea they may be found in. China is grasping at legal straws in international tribunals while trying to somewhat gently muscle her neighbors out of their lawful watery territories. The Dragon is attempting to "prove" that she and not her neighbors have "effective control" and thus the community if nations should recognize China as sovereign over the entire China Seas.

This is an argument that China simply can not win. First simply because a nation uses a more powerful coast guard to out maneuver the naval services of an internationally recognized sovereign does not convert the activity from conquest, a now universally condemned method of acquiring territory. When a nation has recognized soverignity over an area and provides services and law enforcement it is not for a neighbor state to judge the adequacy of the "effective control". Under international law sovereigns are to be left undisturbed within their recognized boundaries, the test of effective administration is not the military ability to hold their turf against all aggression. All nations signatory to the UN Charter and that includes China have agreed to not engage in war except in self defense. More over the resulting international law plainly states that military conquest , in the event that war does happen does not transfer permanently sovereignty or title over territory. Under today's international law of war or armed conflict military occupation is seen as temporary. China leaders simply don't understand present international law or think they can get around it without incurring wide spread international condemnation and enforcement action. They appear to be simply pushing relatively gently until they feel they have the naval power to simply take what they want. What is happening is a costly naval arms race as Japan, the Philippines, and even India build up their navies in response. The U.S. has started to redeploy its forces concentrating more effort in the Pacific. If China's mischief continues at some point the U.S. will enter the naval arms race and build back up its Pacific fleet. When China's day of reckoning comes she is unlikely to be facing a single power. The net result of this present maritime foolishness is likely to be economic ruin and regime change for China.

We will continue this series after the On Line Boat Show coming up tomorrow and lasting through the week end. When we resume we will examine the Limits of Sovereignty, another concept of existing maritime international law that China either doesn't understand or intends to deliberately ignore.
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THE LIMITS OF SOVEREIGNTY

SOVEREIGNTY MAY NOT BE EXTENDED OVER THE COMMONS

The "commons"of mankind would include but not be limited to the high seas and the deep seabeds beyond the continental; shelves. At the moment, by international agreement, the Antarctic continent operates as part of the commons , although sovereign claims upon this territory exist.There is not always agreement on where the commons begin at sea. The world's blue water navies expend considerable effort thwarting the sovereignty patrols of some nations attempting to assert sovereignty over some portion of the commons.

The traditional concept of sovereignty included the right of a state to resort to war whenever it was deemed necessary. Member states of the United Nations are limited in the right by their acquiescence to the UN charter.

Limits to sovereignty may be voluntary, imposed by International Law as in the recognition of the commons, or imposed by other sovereigns or organizations of sovereigns.

Among the imposed limits of sovereignty we observe :

. the neutralization of states

. the creation of dependent states such as suzerainties, protectorates, mandates, and trust territories.

States are typically neutralized by the actions of other states, generally by treaty. The neutralized state agrees to avoid all war except self defense while states signatory to the treaty agree to respect the inviolability of the territory of the neutralized state.

By contrast, neutral states voluntarily assume such status and may end it at will. A neutral state as distinguished from a neutralized state is under no obligation to maintain its neutral status. Other forms of imposed limits on sovereignty are becoming rare.

Suzerainty, the concept of a vassal states for the purpose of foreign affairs has virtually disappeared. This type of imposed limit existed in cloaked form for the nations of the now defunct Warsaw Pact. The last really open example was Egypt between 1840 and 1936 under British "guardianship".

Protectorates have been established from time to time by the United Nations in recent history. However, this status is transitional and protectorates generally expect to gain sovereignty at some point. Protectorates generally allow for a high degree of internal autonomy. This contrasts with Trust Territories established pursuant to Article 83 of the United Nations Charter. Despite the lessened degree of internal autonomy the goal is t0 progress the Trust Territory to eventual sovereignty.

ACQUIRING SOVEREIGNTY:

Sovereignty, in theory, may be acquired by effective settlement of essentially unoccupied land and the establishment of an accepted government enjoying the allegiance of the people. The evolution of new sovereigns from colonies of preexisting sovereigns has been either by violent revolution or by grant of the preexisting sovereign. I either case, the grant of sovereignty to a colony usually results in quick recognition by other sovereign states. However, recognition alone does not establish sovereignty.

Sovereignty is enhanced but not dependent upon recognition by other sovereigns. Recognition comes in a variety of forms and follows no set pattern. Recognition is mostly an instrument of national policy. Some states simply may have no interest in the existence of a particular state. Other states may have a particular interest in withholding recognition. For example, during the Cold War the United States refused to recognize Soviet sovereignty over the Baltic States. It refused to recognize the extinguishment of the preexisting states of Latvia, Lithuania, and Estonia. The United States moved relatively quickly to recognize the sovereignty of these states as they reemerged from Soviet control at the end of the Cold War.

Of all of the means of establishing sovereignty the most effective is effective settlement and governance. This is the essential reason why Argentina has no rel claim upon the Falklands. While there were many Spanish surnames among the original settlers with former residence in what is now called Argentina, the Falklands were settled under British license. British colonial agencies protected land claims, provided civil government, and the British navy protected the islands from invasion. As the colony prospered the people assumed more and more of the duties of daily governance but continued to rely on the protection of the British Navy and other British agencies. The people of the islands never revolted against British rule and when given the choice on free elections have always chosen to be British territory. Argentina's claim of a revolt nearly two centuries ago is a myth. What actually happened is that a handful of cowboys hired by the British government to tend to feral cattle in the hills refused payment ion sterling notes and demanded payment in gold. When the authorities refused to pay off in gold the cowboys decided to shoot up the small town on the largest of the islands. The populace made short work of them. They demanded gold not political autonomy. The Brits now have a second claim to Sovereignty over the Falklands beside historic effective settlement and administration, and the proven loyalty of the actual inhabitants. The British have now successfully defended the islands by force of arms.

EXTINGUISHMENT OF SOVEREIGNTY

Sovereignty once acquired by a state can be lost.

There are very few examples of sovereignty surrendered voluntarily; but it has happened. The Republic of Texas incorporated itself into the United States by treaty. Most states are extinguished, by annexation-sometimes bloodless, but usually by conquest.

Sovereignty can also be lost over a portion of territory where a region secedes from a state.

Secession in this sense can be peaceful as a result of a plebiscite or violent as by revolution.

Succession has another meaning in International law.

This word is closely associated with problems created by the extinguishment of sovereignty.

Succession refers to the assumption of sovereignty of an extinct state by another viable state.

As a general rule, a succeeding state will not automatically assume the treaty rights and obligations of the extinguished state. Property rights such as title to public assets, generally are assured by the new sovereign. When cession is by treaty, the succeeding state may assume general obligations for former treaties. There is no firm rule or expectation in this regard but a willingness to assume the obligations of the extinct state is often a factor in recognition.

TO BE CONTINUED: NEXT THE RIGHTS AND DUTIES OF STATES
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THE RIGHTS AND DUTIES OF STATES:

Nation states, then, are the authors, actors under, and subjects of International Law. The rights and duties of states are:

Equality:

Regardless of the size of its territory or population , each state enjoys equal access to international courts and organs of arbitration. Equality also means an equal voice relative to the the creation , codification, or restriction of rights and duties of states. Equality also refers to independence in its domestic affairs. A state may generally rely on its sovereignty in dealing with its own nationals. However, states that act in a manner to shock international standards of humanity invite intervention.

The right of independence in domestic affairs is tempered by international standards of individual human rights. Genocide, "ethnic cleansing", and the dispossession of groups within a state invite response by the international community by intervention.

Independence in Foreign Affairs

A state may decide for itself the type and extent of diplomatic relations it engages in with other states. The existence of an isolated state like Japan before Admiral Perry's visit is almost unthinkable today. It is entirely up to the individual state to determine its own foreign affairs. Each state has the inherent right to enter into treaties. the only limit on this right of soverignity is that the state may not enter a treaty whose provisions are contrary to International Law or violate treaties the state is bound to follow.

Continued Existence and Self Defense:

The law-abiding state is entitled to continued existence. This implies the right of self defense.

Self defense is not restricted to merely repelling attack. Other actions such as an arms build up in response to similar actions by an unfriendly sovereign are inherent in the right of self defense. However, "preventative war" is illegal. This must be carefully considered by states considering "preemptive strikes". The differences between "preventative war" and a "preemptive strike" are real. A state must make its case before and after the event.

Diplomatic and Consular Roles:

All sovereign states have the "right of legation"

The right of legation refers to a state's right to send representatives to attend to their interests in other states, and to receive comparable representatives of other states. In the ancient world, legations or diplomatic missions were exchanged at times. The practice we observe in the modern world of permanent legations in foreign countries is of relatively recent vintage. It was not a very widespread practice until the latter years of the 19th century. Today it is a virtually indispensable norm.

Under the right of legation a state may exchange a variety of representatives. The representatives most commonly referred to in this context are diplomatic agents and consuls.

Diplomatic agents form the personnel of the diplomatic mission. The functions of the diplomatic missions include:

-Representing the sending state in the receiving state

-Protecting the sending state's interest

-Negotiating with the government of the receiving state

-Lawfully observing and reporting conditions in the receiving state

-Promoting friendly relations.

By contrast consuls are not diplomatic agents. Consuls are agents in the interest of the sending state's commerce, industry, and navigation. Consular agents need not be citizens of the sending or authorizing state. In a number of U.S. ports "honorary consuls" are local attorneys.

United States Naval officers and Coast Guard officers may be called upon to perform consular functions in foreign ports when there is no other U.S. consular agent.

Military and naval officers may also serves as military attaches. As such they are part of the diplomatic mission. The primary duty of the military attache is the lawful collection of information of military value. Additionally, he or she may have ceremonial or honorary duties assigned by t he head of mission. The military attache occasionally may be charged with protecting the rights of U.S. servicemen subjected to trial by a foreign court. Such situations are usually the subject of "status of forces' agreements.

To a large extent , the military attache and his staff may enjoy the privileges and immunities of diplomatic agents. The privileges and immunities of diplomatic agents are much more extensive than the privileges and immunities normally extended to other military personnel on foreign soil under "Status of Forces" agreements.

The privileges and immunities of diplomatic agents include:

Freedom of Transit: the right to transit the territory of a third party to reach the nation wher ethe mission is located.

Inviolability of Person: protection from personal assault, interference or arrest.

Inviolability of Domicile: protection of their residence from search and seizure.

Jurisdictional Immunities: protection from civil suits, witness duties, and criminal prosecution.

Exemption from taxes and customs duties.

The privileges and immunities of diplomatic agents apply without exception to the Chief of Mission. Generally the mission staff and their families are entitled to the same immunities as the Chief of Mission; however, practices vary from state to state and are largely based on reciprocity.

By contrast, consular officers with commercial duties are usually guided in their mission not by traditional diplomatic functions recognized in International Law but by the domestic law of the sending state. generally, the exchange of consuls is provided for in a bilateral treaty of commerce and navigation or a bilateral consular treaty or convention.

By U.S.domestic law, our consuls are authorized to receive the protests and declarations of ship masters, crews, passengers, and merchants who are U.S. citizens. U.S. consuls abroad are also charged with the care of American merchant ships stranded in their district and the relief of distressed American merchant seamen. To this end, U.S. consular officers, including naval officers acting in that capacity, may require masters of American merchant ships to return such seamen to the U.S. at no charge though the seaman may be required to work during passage. Consular officers, including naval officers acting in that capacity , may require U.s. masters of U.S. Merchant ships sold abroad to pay the crew's passage back to the United States. Consular officers, including naval officers acting in that capacity, are vested with the usual powers of a Notary Public.

It is important that junior naval and Coast Guard officers be familiar with consular duties because the Senior Officer Present Afloat (SOPA) may act as a consular officer when a regular consular officer is not present. This power is most often exercised in its notarial functions for a warship's own crew members with problems that require the authentication of documents. The most junior officer may find himself SOPA on a warship during peace time port visits if liable to duty as in-port Officer of the Deck.

An exemplary senior yeoman afloat will keep a formulary of typical U.S. notorial forms of attestation , bills of sale, powers of attorney, and affidavit formats to fulfill these needs. the notarial authority of commissioned officers is also recognized by statute in a number of U.S. states. This can provide a great savings, morale boost and convenience for crewmen.

Crew morale and emergency considerations aside, the SOPA occasionally may have to perform the commercial functions of a consular agent. This is especially true when working closely with merchant -manned sea lift forces. Naval officers are well -advised to acquaint themselves with the guidelines for consular officers found in the U.S. State Department's FOREIGN AFFAIRS MANUAL.

CONCLUSION:

In a maritime context, sovereignty is a primary concept of International law. It is the authority to impose custom duties and entrance and clearance requirements for merchant ships. Sovereignty is the underlying principle guiding the the privileges and immunities of warships and the duties and obligations of merchant ships. The naval professional is charged with projecting, protecting, and defending the concept of sovereignty of his own and allied nations and protecting the world's commons.

To be continued : Next the laws of territory and the commons
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TERRITORY AND THE COMMONS

INTRODUCTION:

Territory in International Law refers to the land and water areas, both surface and subsurface, and the air space over those areas which are subject to the sovereignty of a particular state.

A state must possess a national territory to qualify as a state in any legal sense. The territory may be minute such as the Principality of Monaco, but without territory the most government like organization may not be, nor exercise the rights of a state. This is way all organizations like the PLO or Al Qaeda can not field "soldiers" entitled to the protections of the Geneva convention. Those who bear arms for non governmental organizations are always legally either "unlawful combatants" at best or "terrorists". Such organizations may be governments in exile, international associations, or international political parties with aspirations of statehood over some specific territory; but until they acquire and control territory, they can not be sovereign.

Not all of the earth's surface is susceptible to incorporation into territory. A portion of the planet is recognized as the "commons' or common assets of all mankind. The commons of typical concern to maritime professionals includes the high seas and the deep seabeds. Naval professionals spend a great deal of time enforcing rights to the commons and defending the territorial sea from threats transported across the commons. Many legal professionals are engaged in defining the emerging international management regime over the deep seabeds. Legal professionals serving the marine oil and mineral industries must be concerned with the rapidly emerging law of the outer continental shelf and deep seabeds. Any understanding of such evolving law must begin with a framework of the established concepts concerning territory.

ACQUISITION OF TERRITORY:

The principle means of acquiring territory are:

-Occupation

-Cession

-Annexation

-Prescription

-Accretion

OCCUPATION

Territory may be lawfully acquired by effective and actual occupation. mere discovery and claim are

insufficient. If a territory is not suitable for occupation, a nation may exercise sovereignty over it by the exercise of effective governmental jurisdiction. For example, the U.S. never permanently occupied the Guano Islands of the Pacific. However, the U.S. discover, lay claim to, extract deposits from, and regulate activities on these islands. The U.S. claim to title was recognized and respected more on effective control and use than occupation.

In the Antarctic Today a number of states have territorial claims based on discovery. Exploitation for industrial or commercial purposes with the possible exception of ecotourism is temporarily banned from this international scientific reserve. The Antarctic continent is not firmly in the commons and could be subject to territorial claims. at the moment, all claimants including the U.S. have put their claims on hold and created, at least temporarily, an international scientific reserve. at this writing, the ultimate fate of the Antarctic remains undecided. By international agreement it could join the high seas and deep seabed in the "commons"; or territorial claims could ultimately be perfected. As a result of the uncertain status of the Antarctic, some of the manned science stations, especially those of Argentina, sometimes engage in bizarre activities. One of the more common practices is to winter over an entire family, including a pregnant wife, to insure a birth on the Antarctic continent. This type of activity coupled with the staging of elaborate cultural events appears aimed at perfecting a territorial claim through occupation if the ultimate fate of the continent is division into territories. The fate of the Antarctic continent will involve resolution of numerous points of the International Law of Territory and the evolving discipline of international environmental law.

Offshore oil and mineral industry platform technology has opened large areas of the outer continental shelves to virtual occupation. This in turn, has led to broader claims to territorial seas and a shrinkage of the commons of the high seas. This shrinkage has generated international interest in and attached importance to the growing concept of navigational servitudes. The outer continental shelves of the world vary from just a few miles to hundreds of miles in width. If claims of territorial seas can be held to 12 miles by international law, there will be a strong push for international surface navigation servitudes across all outer continental shelves. The deep seabeds have been addressed by treaty, even before the technology for exploiting them had been perfected. It appears the deep seabeds will remain in the commons. So, despite the perceived closure of the colonial era, watery and frozen parts of the globe still lend themselves to territorial claims by occupation.

To be continued : Next a discussion of means of territorial acqusition

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LAND AS A KEY TO TO THE CONCEPT OF TERRITORY

LAND:

As noted earlier , territory can encompass land, water areas , subsea areas, and air space. Land, however, is the key. Water, subsea, and air space territory are always described in terms of proximity to land territory. All forms of territory can be subject to servitudes. Servitudes, such as the right of innocent passage, are most common at sea and to a lesser extent in the air space. International servitudes are least common but do occur on land. International servitudes have been granted for railroads and even roads through sovereign territory. Land areas are the most common type of territory subject to lease. The conditions of a lease will vary with its length and purpose and the relationship between the contracting sovereigns.

Some leases grant only a right of use and virtually no sovereign control. Others grant near extra-territorial status and virtual soverign control over the lease area. The United States has a number of foreign naval bases under lease arrangement. The conditions of each lease vary. The personnel at these naval bases are the subjects of Status of Forces Agreements.

Status of Forces Agreements outline the jurisdictional regimeover foreign troops stationed on another sovereign's soil. Every U.S. officer stationed abroad should be familiar with the details of the Status of Forces agreement governing his unit. Naval and Coast Guard Senior and Master Chiefs are examined for knowledge of Status of Forces Agreements on their service -wide advancement exams. Any U.S. lawyer engaged for a cause of action involving a U.S. service member abroad should research the pertinent Status of Forces Agreement. This agreement may well determine which, if any foreign courts the service member has access to. This agreement can be a deciding factor even in domestic matters such as marriage, divorce, and inheritance. A basic familiarity with the local Status of Forces Agreement should be a requisite for even junior NCOs and Petty Officers. Such knowledge could prove vital to junior Petty Officers when on shore patrol. To naval and maritime legal professionals. Status of Forces Agreements are one of the most common concerns in the land based international law of territory.

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LAND AS A KEY TO TO THE CONCEPT OF TERRITORY

LAND:

THE TERRITORIAL SEA

Outside of the English speaking nations the concept of the TERRITORIAL SEA is one of the most commonly misunderstood or ignored concepts of international law. The issues going on now with China's refusal to abide by the United Nations Law of the Sea Convention UNCLOS) where it concerns territorial seas which are sovereign territory of the adjacent coastal state, and the collection of various agreed to servitudes that make up Outer Continental Shelf (OCS) waters and Exclusive Economic Zone (EEZ) waters is just the latest example of how this concept has not yet achieved universal acceptance despite the large number of nations that signed the UNCLOS convention and the number like the United States that are still not signatory but generally compliant.

For the maritime professional, the concept of the "territorial sea"versus the "high seas" is the single most important concept in international law. Policing the territorial sea of the United States is the daily concern of the U.S. Coast Guard. Challenging the extension of the territorial seas of other nations into the commons of the "high seas"is the daily concern of the U.S. and allied navies. The territorial sea is a primary concept relative to the enduring principles of the international law of territory as it applies to water areas.

THE TERRITORIAL SEA DEFINED:

The territorial sea is a portion of the seas within a definite maritime belt immediately adjacent to a state's coastline. The territorial sea is seaward of, and does not include ports, road-steads, rivers,most bays, some gulfs, straits, or sounds. Most coastal lakes, bays, and sounds and similar waters are not part of the territorial sea but rather are a part of a state's "internal waters". On internal waters a state exercises complete sovereignty identical to its powers over its land areas. Included in this sovereignty over internal waters is the power to completely exclude foreign ships. The territorial sea, by contrast, is subject to some international servitudes.

CONTENTION AT THE BOUNDARIES:

There is widespread international agreement on definitions, rights, and duties relative to the high seas and the territorial seas. The big bone of contention is the breadth of the territorial seas. There seems to be widespread agreement that the breath of the territorial sea is at least 3 miles. There is fairly widespread support in the international community for United Nations Convention On The Law Of The Sea (UNCLOS) definition of the territorial seas subject to certain exceptions at 12 miles , assuming free navigation of international straits is assured, and boundaries between coastal states separated by narrow seas are subject to negotiated or arbitrated settlement.

A few states still claim as their territorial sea as much as 200 miles off their coastlines. China is currently claiming parts of the sea as much as 930 miles from her nearest coast and less than 130 miles from her neighboring states and well within their UNCLOS recognized Exclusive Economic Zones. China is not alone in advocating a virtual closed sea, but is the only nation to do so without so much as a nod to the provisions of UNCLOS. By contrast Russia is using provisions of existing UNCLOS and OCS law to claim all of the Arctic Ocean as an extension of its own Continental Shelf. Russia's latest claim was turned down by the UN on the basis of insufficient scientific information. If Russia is ever successful in its arguments it would not win the Arctic Ocean as a territorial sea.

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RIGHTS AND DUTIES OF FOREIGN SHIPS IN THE TERRITORIAL SEA

The rights and duties of foreign ships within the territorial seas are as follows:

1. Innocent Passage: All merchant ships, yachts , non-combatant public vessels, research craft, and other surface surface navigators have the right of innocent passage through the territorial seas. Innocent passage rights do not depend on the purpose of the passageso long as as passage is lawful. Passage can be for transit through the territorial sea without entering internal waters. Passage is "innocent" and not to be disturbed so long as it is not prejudicial to the peace , good order, or security of the adjacent coastal state. Passage may include stopping or anchoring if necessary. Communication with "hovering vessels" may provide probable cause for suspicion that the passage is not innocent and justify boaarding.

2. The coastal state has an obligation to enforce international law within its territorial sea.

3. Foreign ships within the territorial sea may rely on the adjacent coastal state to publicize any known dangers of navigation.

4. The Coastal state, within its own territorial sea, has a right of preventative action against any acts prejudicial to its security. Under this custom vessels bound for internal waters are often boarded by customs and health officials while still in the territorial sea.

5. Innocent passage may not be disturbed in commercially navigable straits connecting parts of the high seas. Interference with innocent passage through international straits often results in serious naval confrontations.

6. Foreign ships transiting territorial seas must comply not only with international law but also the laws and regulations of the adjacent coastal state, including regulations for traffic safety, channel and channel marks protection, pollution, fishing and conservation laws.

7.Coastal states may only levy charges against foreign ships in their territorial sea for actual services rendered.

8. Normally, the forces of the coastal state do not board a foreign merchant ship in the territorial sea for criminal investigative purposes or arrest for any crime that allegedly occurred aboard while the ship was in the territorial sea. The exceptions to this rule would be action upon the request by the ship's master or diplomatic authorities of the flag state, or if the crime disturbs the peace of the coastal state or its territorial waters .

9. Warships enjoy the rights of innocent passage. Submarines, however must remain on the surface and show their flags at all times.

10. A coastal state may expel from its territorial sea any warship that does not comply with or ignores requests to comply with regulations of the coastal state.

11. A coastal state may prescribe regulations for the showing of colors or the rendering of salutes by ships in its territorial sea. It is generally good maritime practice to show your national colors at all times in the territorial sea.

12. Man-made canals linking the high seas are viewed differently that straits in international law.
Such canals generally charge tolls and are subjects of multilateral treaties among the countries concerned. Transit may be legally denied to ships of nations belligerent to the canal owners, operators, or controlling interests.

To be continued: Next the Doctrine of Hot Pursuit

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HOT PURSUIT

HOT PURSUIT: Naval and Coast Guard Professionals are most often concerned with the doctrine of hot pursuit. However, in 1995 it had become a more frequent concern of admiralty lawyers working with commercial fishermen. Hot pursuit has been a factor in fishing vessel seizures on both sides of the U.S. -Canadian border. The doctrine of "hot pursuit" provides for pursuit of law violators who flee to the high seas. In the event of a violation of the coastal states law within its territorial sea, the forces of the coastal state may pursue a violating vessel and effect arrest on the high seas.

There are certain requirements, however, to entitle "hot pursuit". Commencement of the pursuit must be immediate. The pursuit must be continuous and must have started in the coastal states territorial sea or internal waters.

When small boats create mischief in the territorial sea and then flee to a mother craft outside the territorial sea, the mother ship is considered "constructively present" in the territorial sea. As a "constructively present" offender, a hot pursuit of her small craft may include the mother ship.

:Hot pursuit" may be by relay of vessels and air craft but visual or electronic contact must be maintained with the target. "Hot pursuit" must be terminated if the ship enters the territorial waters of another state. By U.S. law, Coast Guardsmen may pursue inbound maritime violators into U.S. internal waters and continue pursuit and effect arrest ashore in a form of domestic "hot pursuit".

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THE OTHER COMMONS:

THE OTHER COMMONS INCLUDE :

THE ELECTROMAGNETIC SPECTRUM

THE ATMOSPHERE

NEAR EARTH ORBITAL SPACE

THE ELECTROMAGNETIC SPECTRUM:

Somewhat related to the law of territory is the regulation of the electromagnetic spectrum. Each state closely regulates radio, radar, telecommunications, and other uses of the electromagnetic spectrum. However without cooperation between states one state's emissions would interfere with those of other nations to the point of electromagnetic anarchy. Realization of this fact has led to extensive, detailed, comprehensive and effective international regulation. This is particularly true in the case of radio transmissions. The various radio and telecommunications conventions are among the most universally and strictly observed of international laws. The utility of radio and telecommunications is totally dependent on this adherence. Every nation is dependent upon the cooperation of other nations in this regard. In the case of radio and telecommunications, states have sacrificed some of their sovereignty for the sake of order.

Most states maintain strict control over all transceivers within their borders. In the North Atlantic Treaty Organization (NATO) nations and elsewhere where forces of various nations have facilities there are usually radio -telecommunications agreements as part of t he basic agreement. In nations without such arrangements, ship commanders should insure that special arrangements have been made before operating transceivers. It behooves the communications officer and the senior radioman to know the rules in each nation visited.

Today the concerns of the commons of the electromagnetic spectrum are expanding into areas that might seem a mixed spectrum such as cyber space and the newly evolving concerns of acoustic space. There are few international or even national regulations for guidance yet in these areas. Cyber space is electromagnetic in nature. It exists across the radio spectrum that allows for computer to computer communications across vast distances including across national borders. There is a constant concern for "band width" in this area which limits the amount and speed of communications between computers. But cyber space also exists within computers fixed memories and storage devices and these can be reached by outside devices against the wills of the computer owners. Electronically stored information and operating instructions can be sabotaged from without. The law of nations is just starting to struggle with this concern.

The Acoustic realm begins in the electromagnetic realm with electronic transceivers that generate, receive, and interpret information that flows from the the generation of acoustic signals (sound) under water. When we began this technology we were not entirely aware that other species were already using the submarine acoustic environment to transmit and receive information, or that our use would interfere with their use and even interfere with our ability to exploit commercially some of the species that we use for food. There is concern about this split spectrum but little in the way of law. Navies around the world are becoming aware and limiting their sonar use especially around known whale grounds. Oil companies don't appear to be in concerned as yet , certainly not enough to limit or reduce their use of sonic equipment in the search for oil and gas reserves in the maritime environment. Oceanographic research is suffering somewhat both the awareness that we are disturbing the necessary communications and possibly the individual physicality of creatures from fish to marine mammals that use acoustic communications. Many scientific research vessels now self limit the use of acoustic sensing. In one instance this is not good. NOAA ships and others now often turn all manner of underwater sensors off when in the Exclusive Economic Zones of nations where there is not a formal agreement in place for oceanographic research. many nations now view oceanographic research, not long ago a corner stone right associated with freedom of the seas as a probable cover for oil and gas research, to give economic advantage to who ever is paying for the research. Consequently many vessels engaged in pure scientific research of potential benefit to the human race now turn their sensors off when entering anyone's EEZ. Keep in mind that the EEZs can be as wide as 200 miles from the coast line. In a place like the Gulf of Mexico there is very little of the "High Seas" that is not in someone's EEZ. Remember that the EEZ only confers limited exclusive economic rights to the adjacent coastal state, not sovereignty these are still the High Seas but now it is dangerous to assert one of the most important rights included in the concept of "Freedom of the Seas", a concept that thousands of English speaking sailors died for over the course of the last 400 years.

THE COMMONS OF THE ATMOSPHERE:

The atmosphere, as opposed to the air space over a territory is in the commons. The atmosphere provides the common breath for all life and, as a moving mass, respects no borders. One common concern of all nations relative to the atmosphere is weather prediction.

METEOROLOGY:

Weather observations and their dissemination can be a territory sensitive issue,but rarely so. All nations have a strong and mutual interest in the study and reporting of weather. International order is facilitated in this area by a specialized United Nations organization called the World Meteorological Organization (WMO). Most states are members of the WMO. There has never been a major dispute between WMO member states over the process of weather observation and reporting. Bridge team officers and ratings need rarely fear that taking weather observations will be viewed with suspicion in foreign ports with the exception of North Korea where the fact that there are other people on the planet is viewed e with suspicion. However, radio communication of such information, like all radio transmissions, must be in accordance with the regulations of the host state.

To Be continued; Next THE HIGH SEAS DEFINED
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THE HIGH SEAS DEFINED:

HIGH SEAS DEFINED:

The "high seas" is a term used to connote "international waters", or the "free seas" as distinguished from the territorial sea. Simply stated, the "high seas" are that portion of the oceans free of the sovereignty of any one state. in such areas all nations may navigate, fish (subject to certain conventions), lay submarine cables and pipelines, undertake scientific research, and over fly, with the exception of ADZs (Aircraft Defense Zones). The high seas are part of the "commons", that portion of the globe (and perhaps solar system) that is viewed as the common inheritance of mankind as opposed to the property of any state.

The commons, at this writing, appears to include the high seas, the deep seabed, the atmosphere (as distinguished from the air space); possibly the Antarctic continent (subject to unresolved territorial claims); and recently (by international convention), the moon circling the earth.

To place the high seas in the commons and to enumerate certain "freedoms of the seas" is not to say that the high seas are not and cannot become subject to international controls. Nothing precludes the family of nations from establishing conventions for the proper uses, or the creation of a comprehensive legal order over any of the commons. At this writing, there are many conventions in force and a strong and continuing movement towards a comprehensive legal order over the high seas. some of the most enduring principles of the high seas legal order are:

1. The mariner must know where the boundary between the high seas and the territorial sea of a coastal state is claimed.

It is at this claimed interface between the high seas and the territorial seas where the mariner must move with extreme caution. At this boundary, control shifts from customary international law and written international convention to the national law of the adjacent coastal state. The most vexing problem with this interface at the moment is the occasional lack of agreement about exactly where it is. The international community settled on 12 miles form a base line established along or parallel to the adjacent coastal state's coast line in the United Nations Convention on the Law of the Sea (UNCLOS). But not all nations have signed aboard UNCLOS, and the convention dealt with situations such as nations facing each other across narrow arms of the sea less than 24 miles wide by requiring negotiation or binding arbitration if negotiation didn't work. In many areas of the world these potentially contentious territorial limits are still being worked out. In other areas some nations can't seem to make the distinction between the controls one may assert under the limited servitudes granted to adjacent coastal states under concepts like migratory fish conventions, Exclusive Economic Zones and Outer Continental Shelf Conventions and exercise patrols in such a way as to interfere with the legitimate freedoms of the seas applicable to the shipping of all nations within these servitude zones.

U.S. policy is to influence international law in the direction of relatively narrow territorial sea and to deal with other regulatory needs of coastal states through more limited means. all U.S. mariners must know their mission when approaching the claimed boundary of a coastal state. If a coastal state's claimed boundary lies beyond the narrow band that the U.S. recognizes, a naval unit may have to enter the claimed zone against the will of the coastal state. The U.S. Navy did this routinely to demonstrate the illegality of Qaddafi's "Zone of Death" off of Libya in the 1980s. By contrast a merchant vessel would be entitled to innocent passage through the area even if the claim were ultimately recognized. a commercial fishing vessel fishing in the zone without permission of the coastal state would invite seizure. However, seeking permission to enter from the coastal state might invite U.S. sanctions against the U.S. fishing vessel owner. Thus the mariner needs to know where the boundary claimed by each coastal state is located and how the claim may affect what is recognized or tolerated relative to a given vessel's purpose or mission. Today, most problems are encountered with those states claiming over a 12 mile width to their territorial seas or treating their servitude areas as if they were territorial seas. Those claiming more than 12 miles are now a bit of a rarity while the second problem is growing with China, a very powerful nation being the worse violator, and being ineffectively challenged at the time of this writing.

2. Special purpose servitudes exist on the high seas and must be respected.

U.S. policy is that regulatory needs of coastal states on the high seas can be met through special and limited controls. such controls deal with issues such as pollution, customs enforcement, and fisheries management. These controls are viewed as legitimate servitudes upon the commons when:

a. They do not materially interfere with traditional surface navigation rights
b. enforcement measures are only undertaken with "probable cause"
c. Limited regulation is based on legitimate protective efforts for the commons and not as an extension or manifestation of claimed soverignity over any part of the high seas. Typically such special-purpose servitudes include;

SELF DEFENSE, FISHERIES, MINERAL RIGHTS, MINERAL EXPLORATION (OFTEN CONFUSED WITH OCEANOGRAPHIC RESEARCH), AND POLLUTION CONTROL

TO BE CONTINUED: Next a more in depth look at these servitudes.

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THE SERVITUDES THAT THE HIGH SEAS ARE SUBJECT TO:

As described in our previous installment the "High Seas" are subject to a variety of servitudes , generally administered by the adjacent coastal states. The first and oldest of these servitudes is the right of self defense. Coastal states at war need not wait for their enemies to enter their territorial sea to engage in combat.

SELF DEFENSE:

C.C. Hyde, an important commentator on International Law wrote "...a state may endeavor to prevent in times of peace or war, the commission of certain acts by foreign ships or the occupant thereof, at a distance of more than three maritime miles from its coast, without claiming that the place where they occur is a part of its domain..."

"Although without a sovereign, the high seas is, nevertheless, often times the scene of activities in which a state asserts the right to check or forbid the commission of a particular act. Yet that assertion ...does not necessarily or commonly purport to be a manifestation of dominion over waters, or control over them, but rather an interference with acts sought to be committed thereon."

Hydes premise is widely accepted in the international community. A nations right to carry legitimate self defense measures beyond its territorial sea is a recognized rule of international law. Therefore, the warship commander, officer of the deck, even the patrol boat coxswain must know what self defense measures are legitimate under this rule.

Basically there are two tests for legitimacy. First, the act the coastal state's forces seek to prevent must be a clearly recognizable threat to the security of the state. Second, the measures taken to repel the threat must be reasonable.

Based on this rule of law, Defensive Sea Areas have been recognized as a special servitude upon the high seas. Defensive Sea Areas parallel the idea of the Air Defense Identification Zones previously described. However , for a Defensive Sea Area to be lawful it can not be established or published in such a way as to deny entry of ships into the area, or in any other way appear to exercise sovereignty over any portion of the high seas.

THE FISHERIES SERVITUDES:

The freedom to fish the on the high seas is one of the most ancient provisions of the international maritime law. Yet, fishing has been the most common cause of conflict over ocean areas. In the second half of the twentieth century the international community experienced a growing awareness that the continuance of this right would require its regulation. This basic concept was first articulated in various international conventions signed in 1958. One of these was the Geneva convention on Fishing and conservation of the Living Resources of the High Seas. Article 1 of this convention expressed this growing consensus in these terms:

"1. All states have a right for their nationals to engage in fishing on the high seas, subject (a) to their treaty obligations, (b) to the interests and rights of coastal states as provided for in this convention; and (c) to the provisions contained in the following articles concerning conservation of the living resources of the high seas"

Since 1956 no universally accepted global fisheries regulatory scheme has evolved. Nonetheless, the principals embodied in the convention are incorporated in numerous bilateral and multilateral fishing treaties. Most regulation and management of the world's fish stocks is carried out under these treaties. The usual enforcement mechanism is through special purpose control by an adjacent coastal state or group of such states.

The exception to the growing consensus for limited fisheries management and enforcement zones is a very small number of coastal states which use fisheries enforcement as part of a program to extend their territorial sea out to 200 miles, and China's use of such a ruse to attempt to extend extend its territorial sea and / or EEZ across the length and width of the China Seas and parts of the territorial waters of Japan and the Philippines.

THE OUTER CONTINENTAL SHELF (OCS)

As a legal concept, the OCS lying beyond the territorial sea, is a form of servitude under the high seas in favor of the adjacent coastal state. The OCS generally consists of the seabed adjacent to the coast, but outside the territorial sea to a depth of 200 meters or beyond that depth to the continental margin.

The United States proclaimed control of OCS seabed resources in 1945. Other nations quickly followed suit. This control of submerged resources of the OCS was exercised in such a way as not to change or interfere with international surface or air space navigation rights. The U.S. and coastal states following the U.S. lead did not claim an extension of the territorial sea or sovereignty over the waters of the OCS.

The evolving law of the OCS was first codified in the 1958 Geneva Convention on the Continental Shelf. This convention firmly establishes the principle that the exercise of jurisdiction over the resources of the OCS does not alter the legal status of area waters as high seas. This convention also establishes the right of coastal states to erect surface installations to exploit subsea resources and to establish safety zones up to a distance of 500 meters around such installations and provide a permanent means for warning of their presence. Installations may not be established in recognized sea lanes.

SEABEDS

The view of the United Nations is that the deep seabeds are "the common heritage of mankind". Thus this subsea realm beyond the Continental shelves is squarely in the international commons. Unfortunately, at this writing, the precise boundary between the continental shelves and the deep seabeds is not yet legally defined. Nonetheless, the international community has agreed to certain points about the region and codified these into international conventions and U.N. resolutions. The Chief Points of agreement are:

1. The deep seabeds are part of the "commons". All nations have rights to the resources of the deep seabeds including non-coastal states.

2. No weapons of mass destruction may be placed on the seafloor beyond the 12 miles from a coastal state's shoreline.

3. The deep seabeds are not subject to appropriation by any means by states or persons, natural or juridical nor may any sovereign rights be exercised over any part of the deep seabeds.

4. No state or person, natural or juridical, may claim, exercise or acquire rights with respect to the deep sea beds or its resources that are incompatible with an international regime to be established by the United Nations and the principles of the U.N resolution on the seabeds of December 1970.

5. All activities regarding the exploration and the exploitation of the resources of the deep seabed and other related activities shall be governed by the international regime to be established by the U.N.

6. The deep sea beds shall be open to use exclusively for peaceful purposes by all states, including non coastal states in accordance with the international regime to be established by the U.N.

7. all states shall conduct such activities as are now feasible in the deep seabeds in full accordance with the principals of the UN resolution of December 1070 and applicable rules of international law.

8. The exploration and exploitation of the deep seabeds shall be carried out for the benefit of mankind as a whole, including the non-coastal states, giving particular consideration to the interests and needs of the developing countries.

9. On the basis of the principles of the UN declaration of December 1970, an international regime shall be created applying to the deep seabed and its resources. This regime is to be established by international treaty of a "universal character generally agreed upon". The regime when established will will be charged with providing for the "safe development" and "rational management" of the deep seabeds and their resources and "for expanding opportunities in the use thereof and ensure the equitable sharing by states in the benefits derived therefrom, taking into particular consideration the interests and needs of the developing countries, whether land-locked or coastal".

10. The UN resolution of December 1970 requires states to "promote international co-operation in scientific research exclusively for peaceful purposes." However, "no such activity shall form the legal basis for any claims with respect to any part of the area (deep seabeds) or its resources."

11. The UN resolution of December 1970 requires states to take appropriate measures for and cooperate in the adoption and implementation of international rules, standards, and procedures for the prevention of pollution and environmental damage to the deep seabeds or adjacent coastal areas, and for the protection and conservation of the natural resources, flora, and fauna of the marine environment.

12. The UN resolution of December 1970 requires states engaged in deep seabed activities to "pay due regard to the rights and legitimate interests of coastal states in the region of such activities, as well as of all other states, which may be effected by such activities. Consultations shall be maintained with the coastal states concerned with respect to activities relating to the exploration of the area and the exploitation of its resources with a view to avoiding infringement of such rights and interests.

13. The UN resolution of December 1970 states that nothing in the resolution shall affect:
" (a) The legal status of waters superjacent to the area or that of the air space above these waters:
(b) The rights of coastal states with respect to measures to prevent, mitigate or eliminate grave and imminent danger to their coastline or related interests from pollution or threat thereof resulting from, or from other hazardous occurrences caused by any activities in the area, subject to the international regime to be established."

14. This resolution requires states undertaking activities on the deep seabeds to take responsibility to ensure "that activities in the area, including those relating to its resources whether undertaken by governmental agencies, or non-governmental entities or persons under its jurisdiction or acting on its behalf, shall be carried out in conformity with the international regime to be established". The same responsibility applies to international organizations and their members for activities undertaken by such organizations or on their behalf. Damage caused by such activities shall entail liability.

15. Finally, the UN resolution on the deep seabeds requires that disputes over activities on the deep seabeds be resolved by measures outlined in Article 33 of the UN charter and "such procedures for settling disputes as may be agreed upon in the international regime established."

So then, while a complete regime of international law for the deep seabeds has not been developed at this writing (October 2013) enduring principles of deep seabed law are emerging. The already identifiable principles of deep seabed law are emerging. The already identifiable principles of deep seabed law inform potential deep sea mining interest that caution is in order before capitalizing major projects. Clearly, international royalty and licensing arrangements lie in the future. Projects started before these arrangements are in place could be penalized. Naval weapons planners may assume that the deep seabeds are not eligible sites for weapons installments.

RESEARCH:

Freedom of scientific research on the high seas is a freedom of custom and tradition. At this writing , freedom of scientific research is not addressed by an effective international convention. This right has been strained in the second half of the twentieth century. Some coastal states have discouraged scientific research by non-nationals by a variety of methods within disputed areas in the territorial seas and the OCS. The driving motive for these actions appears to be concerns of the coastal states over development of ocean resources in areas adjacent to their clear jurisdictions while an international regime for the regulation of such development remains indistinct. United States policy has been to work towards codification and assurance of the right to perform scientific research.

POLLUTION CONTROL:

All signatory nations were required to draft regulations to prevent pollution of the seas by discharge of oil from ships and pipelines by Articles 24 and 25 of the 1958 Geneva High Seas Convention. One response of the U.S. to the problem and the convention mandate was the Water Quality Control act of 1970. More recently, in response to the EXXON VALDEZ accident, the U.S. has passed the Oil Pollution Act of 1990, referred to in maritime trade journals as "OPA 90".

Of these two significant anti -pollution acts OPA 90 has the most profound effect on international law. OPA 90 establishes a 60 mile pollution enforcement zone off the U.S. coast and requires U.S. Coast Guard enforcement of certain anti-pollution requirements even on foreign ships engaged in innocent passage. This particular provision of OPA 90 appears to be in conflict with past U.S. policy positions on the law of the sea. The U.S. has objected to and refused to sign international conventions that clearly gave coastal states control over pollution by ships not flying their national flag in adjacent international waters. Since 1958, international debate on the issue of how best to control ocean pollution has not settled the issue of whether ocean pollution control beyond the territorial seas should be enforced by an international agency or by granting special authority to adjacent coastal states. The absence of a formal agreement has led to unilateral action by numerous coastal states over U.S. objections.

The United States , by enforcing OPA 90, now joins the group of states who claim special anti pollution authority on parts of the high seas. The net result will prove interesting both for the U.S. Coast Guard and U.S. Navy afloat commanders. U.S. Coast Guard forces attempting to enforce OPA 90 in the 60 mile pollution enforcement zone may encounter resistance by ships of states not recognizing such controls. such states will be able to argue that the law itself is inconsistent with past U.S. policy on the issue.

Naval Commanders conducting exercises such as underway replenishment within someone's pollution control zone may find themselves facing coastal state enforcement vessels claiming a right to inspect. These vessels may also attempt to order the U.S. Naval vessels out of the zone so long as transfer of fuels or lubricants is in progress. Naval commanders refusal to cease the activity and leave the area based on freedom of the seas arguments will ring hollow in the face of OPA 90. Many coastal states claim pollution enforcement zones in excess of 60 miles. For example Canada has claimed a 100 mile Pollution Enforcement Zone since 1970.
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Now in fact few of these potential negative effects have happened after nearly two decades of OPA 90 enforcement and over 40 years of Canadian enforcement of a 100 mile pollution control zone. We believe that the lack of incidents and objections stems from enforcement policies and naval operational policies. Plain and simply the U.S. and Canada seem to limit enforcement t0 cases of probable cause such as ships in the zone with obvious overboard discharges. Few if any ships truly on "innocent passage" have been delayed by pollution enforcement actions. U.S. Navy ships engaged in replenishment at sea operations have generally either confined these activities ti places outside national declared pollution control zones or have been exercising with the actual forces of the adjacent coastal state. The issues are still there and still unresolved but the conflicting incidents are few and far between.

Given the failure to establish an effective international ocean pollution control system, the trend in customary international law appears to be toward greater acceptance of pollution control by adjacent coastal states. This development has the potential to dramatically affect where and how underway replenishment operations can take place and even the construction standards for certain naval auxiliaries such as fleet oilers.

The enduring principles of maritime international law relative to pollution control at this writing appear to be:

1. Agreement that pollution on the high seas must be controlled.

2. A growing tolerance for control by special adjacent coastal state authority.

3. The problems created by adjacent coastal state control relative to other freedom of the seas issues will fuel a drive towards formal codification of these controls.

To be continued: Next other high seas issues.

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THE HIGH SEAS-ISSUES OTHER THAN SERVITUDES

CLOSED SEAS:

From time to time various powers bordering on salt water seas connected to the greater mass of the high seas by relatively narrow straits or bay like "mouths" have claimed these as "closed seas". The old Soviet Union pressed this concept relative to the Black Sea and the Bosporus. Norway, Denmark, and Russia attempted to close the Baltic Sea early in the nineteenth century. The real reasoning for closed sea proposals is strategic military interests. The legal reason usually offered is that these seas are only used for transit to and from the adjacent coastal states. Such arguments never have been accepted internationally in principle or practice. The concept of a closed sea, while periodically claimed , is contrary to enduring principles of International Law. The Chinese claims to the China seas are unique in the history of such claims. China's neighboring states do not join her in any claim to the China Seas as a closed sea (ie Chinese territorial waters or in the alternative Exclusive Economic Zone) since China's claims run right up to the beach line of some of her neighbors. China is opposed in her territorial claims by most of her neighbors and her claims run counter not only to the traditional international law but to specific international conventions, some of which China is actually signatory to. China's claims are the most bold faced lawless attempt a closed seas ever seen in the history of this issue. The Chines claim is unprecedented. Prior the the Chinese claims, law suits, and illegal naval actions more recent history indicated that such claims die quietly when the perceived military necessity of the moment passes. However in the 1500s through the 1600s Great Britain fought for roughly 50 continuous years with other European powers in part over freedom of the seas. British victories during that era helped solidify the international precedents now associated with the traditional and codified freedoms of the seas. China appears to want to revisit the issue, an attitude so out of keeping with the rest of the world and its closest neighbors that the contest could once again become one of naval arms.

RULES TO AVOID COLLISION:

The international rules to avoid collision at sea are one of the best examples of well -codified and effectively enforced international law. The rules spelled out in international convention are adopted into the national law of most seafaring states and enforced with the full weight of the state's court system. This system is well known both to mariners ans admiralty legal professionals and needs no elaboration in this text.

THE LAW OF ARMED CONFLICT

The law of armed conflict , sometimes referred to as the "rules of war", are embodied in both international convention and customary international law. The law of armed conflict applies in any theater of war or armed conflict including combat on the high seas. While widely taught to department of Defense professionals, it is not as widely known among Coast Guardsmen and admiralty legal professionals. As it applies on the high seas, territorial waters, and air space, the law of armed conflict will not be discussed in detail here, but will be addressed in separate postings later in considerable detail.

SUMMARY:

Pollution control, fisheries management, the breath of the territorial sea, the deep seabeds, are all issues that have come to the fore in the last part of the twentieth century and as the second decade of the twenty first century nears mid way mark are still not fully resolved. These issues are being complicated by certain states unwilling to conform their seagoing practices to the enduring principals of maritime international law or even the accepted formal international conventions. These issues are interrelated and complex and eventually will be resolved against a backdrop of enduring principles of maritime international law as it relates to the high seas. The territorial sea since this work was first published in 1995 appears to be firmly fixed at 12 miles from the coastal base lines. Pollution control and fisheries management authorities of adjacent coastal states will likely extend far out to sea but in a manner that does not disrupt surface navigation without probable cause to suspect a violation. The rights of coastal states to the submerged resources of the outer continental shelf are established. Eventually the extreme legal as opposed to geological limit of the continental shelf will be defined, perhaps as a direct result of Russian claims and research in the High Arctic before the next decade is over.

Beyond the OCS, the deep seabed is established in the commons. an international regulatory system for the deep seabed is mandated but not yet established. Research rights are ripe to be addressed by international convention.

The nations of the world are presently facing momentous questions concerning the rational and equitable use of the world's oceans. But there is guidance and direction visible in the enduring principles of the law of the high seas.

TO BE CONTINUED; NEXT RULES FOR TERRITORIAL SEAS, INTERNAL WATERS, AND PORTS

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RULES FOR THE TERRITORIAL SEAS, INTERNAL WATERS, AND PORTS

INTRODUCTION:

Ships eventually move from the high seas through territorial seas and internal waters to port. Ships long have been a subject of international law. On approach to port through the territorial sea to the internal waters ships come under evermore increasing enforcement power of the coastal state. On the approach to port or near approach to the territorial sea, the naval commander or ship master must know how international law affects his ship.

International law concerns itself with the control of ship movements to avoid collision, the actions of ships at sea and in port, and ship operations in International Law establishes privileges, duties, and immunities for two basic classes of ships "merchant ships"(i.e. commercial vessels) and "warships" (naval vessels).

To understand the privileges, duties, and immunities of your ship you must first accurately categorize it as a "merchant ship" or "warship". This will be a fairly simple task unless you happen to serve on a NOAA (National Ocean and Atmospheric Administration) research or other public vessel.

So how do we class a public vessel? Under International Law the term "war ship" includes all vessels commissioned as a part of the naval forces of a state. Such vessels should be authorized to display a special flag (such as a naval ensign for some nations) or pennant (such as a commissioning pennant for U.S. vessels. To be a warship, a public vessel must also be commanded by an officer of the military forces of a state and crewed by sailors subject to military discipline. Thus a U.S. Navy ship flying the commissioning pennant would be a warship. U.S. Coast Guard cutters flying the Coast Guard ensign, including some smaller cutters with Chief Petty Officers as officer in charge would be "war ships". However, for most purposes of immunity, other state owned non- commercial vessels such as NOAA research ships or civilian-manned Military Sealift Command ships are treated somewhat like warships by most nations. However, these public vessels do not incur the duties nor enjoy all of the attendant rights of war ships. For example, most non-naval public vessels do not have the duty to suppress piracy nor the attendant right of close approach.

State owned ships used for commercial purposes are treated as "merchant ships" (i.e. "merchant men"). Despite state ownership, such vessels are totally subject to the soverignty of the port state. State-owned shipping line vessels must pass through customs and submit to all inspections of the port state.

TO BE CONTINUED: NEXT THE PRIVILEGES AND IMMUNITIES OF WAR SHIPS
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PRIVILEGES AND IMMUNITIES OF WARSHIPS

PRIVILEGES AND IMMUNITIES OF WAR SHIPS:

Warships, defined as strictly military vessels, have some unique duties imposed upon them by international law and enjoy certain privileges unique to their class. Customary international law and UN charter articles charge warships with the "suppression of piracy and the slave trade". This may sound like something out of the nineteenth century to non-mariners, but seafarers since the 1990s know that piracy in several forms is far from being suppressed and the slave trade is not unheard of in a few parts of world.

(1) SUPPRESSION OF PIRACY:

One major problem with the suppression of piracy is that there is too narrow a definition of piracy in both national and international law. Several hijackings of various cruise ships in the 1960s and 1980s, and the disappearance of the yacht PIRATE LADY illustrated the types of cases complicated by existing narrow definitions of the crime of piracy. In all of these incidents the vessels were forcibly seized by bandits who had embarked peacefully from the shore. The cruise ships were taken over by people posing as passengers. It is likely the yacht PIRATE LADY was taken over by people the crew regarded as guests.

These crimes imposed upon the ship's crew and passengers had all of the consequences of traditional piracy including sudden violent death. Yet these crimes lacked the element of "assailing banditry conducted from a vessel or aircraft and directed against another vessel or aircraft" to qualify the the crime clearly as piracy and invoke the severe repressive measures and universal authority to act authorized by national and international law.

International convention has defined piracy as any of the following acts:

"(1) Any illegal acts of violence, detention, or any act of depredation, committed for private ends by the crew or passengers of a private ship or a private aircraft, and directed :

(a) On the high seas, against another ship or aircraft:

(b) Against a ship, aircraft, persons or property in a place outside the jurisdiction of any state.

(2) Any act of voluntary participation in the operation of a ship or an aircraft with knowledge of facts making it a pirate ship or aircraft.

(3) Any act inciting or intentionally facilitating an act described in sub-paragraph 1 or sub-paragraph 2 of this article. "

Note that the official definition of piracy the assault must originate from another vessel or aircraft. So the pirates getting so much media attention (in 2013) off of Somalia are definitely pirates by anyone's definition. Yet so were the Green Peace operatives who boarded that Russian off shore oil rig, though eventually the piracy charge was reduced. At this writing (2013) as well as when this work was originally penned (1995) there is no shortage of traditional piracy in the form of assailing bandits who attack who attack ships from small craft off of Somalia, in certain straits, and at the entrance to some ports and in certain straits in Latin America and the Far East. However some of the most newsworthy incidents reported in the media as "piracy" were actually instances of "marine terrorism", a crime, along with ship hijacking that benefits from a narrow definition of piracy.

Marine terrorists are not the only group to benefit from this narrow definition of piracy. Many marine insurance policies include the "Inchemaree Clause". This clause, which includes "piracy" as a covered peril has been ruled to exclude from coverage numerous forms of non-assailing banditry. Particularly in the case of stolen recreational craft this clause, coupled with the narrow definition of piracy, often allows insurance companies to avoid payment for stolen boats despite "all risk" policy language on the cover documents. This illustrates that there are political and economic ramifications to the definition of and effective enforcement against piracy. Regardless of the outcome of the discussions over the definition of piracy, the warships of the world are charged with its suppression.

(2) SUPPRESSION OF THE SLAVE TRADE:

The best current information indicates that the sea borne trade in slaves is well suppressed. However, the smuggling of illegal aliens into certain countries at times features many conditions of the slave trade. The worlds warships have the duty to suppress both piracy and the slave trade. In order to carry out this duty , warships have the right of approach.

(3) RIGHT OF APPROACH

The right of approach may be exercised by a warship relative to a merchant vessel at any time in war or peace. The purpose of the right of approach is to allow warships to ascertain the true character of a vessel as being other than a pirate or slaver. within special enforcement zones the right of approach includes observation of other elements of a vessel's character, especially in the case of fishing vessels. In the territorial seas the right of approach covers all elements of a merchant vessel's character of concern to national law. On the high seas however, merchant shipping is not bound to heave to or await the approach of a warship. When a warship contacts a merchant vessel on the high seas, the merchant vessel is bound only to establish her identity and nationality by display of her name and national flag. If a warship stops and boards the merchant man and the action proves unjustifiable, compensation must be paid to the merchant ship owners. Sometimes an apology to the flag state must be made as well. The right of approach on the high seas is codified under International Law for the following circumstances:

(1) A vessel is suspected of piracy

(2) A vessel is suspected of being a slaver

(3) A vessel is flying false colors or refusing to show her flag

(4) A vessel is is suspected of interference with treaty rights

More limited rights of approach exist relative to protection of submarine cables on all parts of the high seas, and in certain parts of the high seas relative to fisheries law enforcement.

TO BE CONTINUED: NEXT WARSHIPS ENTERING TERRITORIAL SEAS, INTERNAL WATERS, AND PORT
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WARSHIPS ENTERING TERRITORIAL WATERS:

While warships enjoy the right of innocent passage through the territorial seas, coastal states have the right to exclude warships from internal waters and ports. However, it is customary for coastal states to allow for naval visits in peace time. Such visits, however, must be arranged through proper channels. The NATO states have extensive :naval visits agreements". These agreements expedite the port visit procedure and provide for arrangements through naval rather than diplomatic channels. In other than NATO states the usual procedure is to secure permission through regularly established diplomatic channels.

Once in port, officers of the deck need a through understanding of the immunities of warships. Some of these immunities are codified by international convention. Most, however, are the result of customary international law. Many of these immunities are widely agreed on. Others occasionally have been the subject of controversy.

THE SHIP'S IMMUNITY:

A warship, plainly and simply is not subject to the authorities of the host state. Police and port officials are not entitled to board without permission of the commanding officer. A commanding officer is never required to submit to a search of his ship.

The boats of a warship are entitled to the same immunities as the ship itself, a point every coxswain needs to bear in mind. The claim of immunity for the boat requires that the national ensign always be flown during daylight hours. Ships aircraft can become a more complex issue.
As long as they stay aboard the warship, they are part of the warship and share its immunity. Military aircraft, however, do not enjoy the same status as warships in and of themselves. Such immunity as military aircraft do enjoy is based solely on their status as state property. Consequently, if a ship's aircraft leaves the ship during a port visit its status as part of the ship may be considered diminished by some states.

The total immunity of a warship is no license for misbehavior. A visiting warship customarily follows all port regulations relative to speed, traffic control, sanitation and pollution controls. Enforcing these rules is by means of a complaint lodged through diplomatic channels by the host state. While in port, officers and junior officers of the deck, boatswain's mates of the watch, and coxswains should acquaint themselves with the rules that apply to their areas of responsibility, and should observe and enforce them.

TO BE CONTINUED; NEXT WARSHIP IMMUNITY AND ASYLUM SEEKERS

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WARSHIPS AND ASYLUM AN AMERICAN VIEW:

Since warships enjoy immunity from territorial sovereignty of the host state, they are sometimes targeted as a place of asylum by political refugees. Although a request for asylum can be a major prob;em for a commanding officer, the first respondent for the ship may be the officer of the deck, or even the junior officer of the deck. It is important that some knowledge of the rules of asylum be possessed down to the junior officer of the deck and liberty launch coxswain level. While such requests are now far less frequent since the end of the cold war, they can happen at any time in any foreign port. Naval regulations change from time to time and nothing that follows should be regarded as a report of up to date official naval instructions. But what does follow is based on regulations in force at the time of this writing and an understanding of the enduring underlying principals of the relevant international law.

(1) Temporary refuge shall be granted for humanitarian reasons only on extreme or exceptional circumstances where the life or safety of a person is put in danger, such as pursuit by a mob. When temporary refuge is granted, such protection shall be terminated only when directed by the Chief of Naval Operations or higher authority. Commanding officers do not have the authority to grant permanent asylum.

(2) Requests for asylum shall be referred to the U.S. Embassy, if one exists, in the foreign jurisdiction. Individuals requesting asylum shall be afforded temporary refuge only as outlined above.

(3) The Chief of Naval Operations (or Commandant of the Marine Corps if request is made through a Marine unit) be informed through the most expeditious means possible of all actions taken pursuant to any request for asylum and all attendant circumstances. The appropriate U.S. Embassy or consular post must be similarly informed.

(4) Naval personnel shall neither directly nor indirectly invite persons to seek asylum or temporary refuge.

The point to keep in mind in terms of the enduring principles of maritime international law is this: While the immunity of a warship is a settled point of international law, any implied right of a warship to grant asylum is a matter of controversy.

TO BE CONTINUED: NEXT THE STATUS OF A WAR SHIP'S CREW ABOARD AND ASHORE.
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THE WARSHIP'S CREW

While war ships and their boats enjoy immunity from the sovereign power of the host state while visiting foreign nations we've already seen how the ship's aircraft could lose the immunity of the ship if operated off the ship while in port. Air craft are viewed in international law as state property, treated with respect by host nations but not with the unusual immunity of the warship. An ambassador enjoys personal immunity from the sovereign power of the host state in his person and in his residence. Though we often call American sailors "blue jacket ambassadors" their personal status once ashore in a foreign port is about the same as any other tourist unless we have a "status of forces" agreement with the host nation. Sailors visit many places where we do not have "status of forces" agreements. Even where we do have them no status of forces agreements give U.S. military personnel immunity from the police powers of the host nation. So having described the immunity of the war ship the officers and crew arrived on let's now look at the status of the crew.

The status of a war ship's crew depends on whether they are aboard or ashore. If ashore, a warship's crewman's status is dependent on duty status. The warship's compliment (crew) is totally immune from the sovereignty of the host nation while on board. When crew members of a war ship are dispatched ashore in foreign territory on official business it is customary for the host state authorities to waive all jurisdiction over them. This is a point of customary, but not codified, international law.

The status of a warship's crew ashore is an unsettled point of International Law. The tendency today is for the host state to assume jurisdiction. This is modified somewhat in a number of foreign ports where U.S. forces are stationed or call with some frequency by "status of forces" agreements, treaty, or executive agreements.

Shore patrols should not be landed except with the consent of the host state. If landed, shore patrols should be unarmed. If a shore patrol is landed the host state can order their withdrawal at anytime. It is imperative that the officers or chiefs in charge of such a shore patrol fully instruct all members in the scope of their authority and their relations with foreign nationals and officials.

TO BE CONTINUED: NEXT THE LAW OF MERCHANT SHIPS

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MARITIME INTERNATIONAL LAW : THE LAW OF MERCHANT SHIPS:

MERCHANT SHIPS:
To maintain law and order on the high seas, international law requires that every ship plying the oceans have a nationality. The law of the flag state applies aboard. As ships approach a coastal state's areas of legitimate jurisdiction the demands for verification of nationality increase in frequency and detail. To be accorded recognition as a properly flagged ship, the flagging process must meet certain requirements. There must be a genuine link between the flag state and the ship. This link need not be that the crew consists of nationals of the flag state, but the officers and crew should be licensed and certified by the flag state. The flag state must exercise jurisdiction effectively in such areas as manning requirements, safety equipment, ship sanitation and health and similar matters. The flag state must provide the ship with documents proving her nationality. This is usually referred to as a "registry".

A ship may have only one registry at a time and may not change flags during a voyage or while in port except in the case of a bonafide change of ownership or registry. a ship possessing two registries or changing flags at her convenience is considered under international law to be a stateless ship and pirate suspect. Ships employed by international organizations may show both the organization flag and their national flag.

Once a merchant ship enters port she is completely subject to the law of the host state. A merchant ship, even a state-owned merchant ship (carrying cargo for hire and entering and clearing through customs) does not enjoy the privileges and immunities of a warship or non-commercial public vessel.

However, as a result of the practical necessities of shipping, a number of customary and enduring rules have evolved with respect to the exercise of jurisdiction over visiting merchant ships by local authorities. Generally local authorities leave to the ship's master and the flag state all matters of internal discipline so long as peace in the port is not affected. Sometimes this custom is codified between regular trading partners by consular convention. Pursuant to this customary practice, port states generally will not interfere with detention in custody of a merchant seaman aboard a merchant vessel for disciplinary infractions so long as the conditions of detention are humane and the detention is lawful under the laws of the port state.

Merchant ships have no ability to facilitate asylum. Should a merchant ship enter a port with a fugitive from the port state aboard, port state authorities have every right to board and take custody of the fugitive.

TO BE CONTINUED: NEXT THE INTERNATIONAL LAW OF PERSONS
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THE LAW OF PERSONS:

THE LAW OF PERSONS
As illustrated by the example of the fugitive, one of the basic principles of sovereignty is its jurisdiction over persons. Naval and maritime industry personnel often spend a great deal of time in foreign ports and territories. By international law a state, by virtue of its sovereignty, has exclusive jurisdiction over all persons within its boundaries. This jurisdiction is absolute over merchant mariners but may be modified in various ways relative to naval and diplomatic corps personnel. The modification of this jurisdiction is referred to as immunity. The immunity of the diplomatic officer is generally total while the immunity of the naval personnel is limited and varies from state to state based on treaty, convention, provisions, and status of forces agreements.

The jurisdiction of a sovereign over all persons within its territory can sometimes come into conflict with the authority of the state to which a resident or visiting alien owes allegiance. For example, a U.S. shipping company employee, who is a U.S. citizen, working in a foreign branch office is subject to the jurisdiction of the host state based on his or her physical location within the host state. The same employee is personally subject to the jurisdiction of the United States. as a citizen of the U.S., this employee is subject to all U.S. law applicable to his or her person such as tax codes, the draft, and responsibility for crimes or torts committed in the U.S. at the same time this individual is also subject to all of the domestic laws of the host state that do not specifically exclude application to aliens.

The same U.S. employee is subject to the court system of the host state for all causes of action, both civil and criminal, that he may become party to. On the other hand, as a non-citizen, the civil jurisdiction of the host state either may not be available to him or may be effective for certain purposes such as divorce. On the opposite end of the marriage regime an American stationed working, or visiting abroad may be able to contract a marriage in the host state. However, the entry of the new spouse into the U.S. is wholly dependent on U.S. immigration law.

Coast Guardsmen involved in the suppression of the illegal drug trade occasionally have an interest in extradition. Extradition is the surrender of a suspected criminal by one state to another. The United States and most English speaking nations, especially Commonwealth members view crimes as territorial and punishable only where committed. Latin countries have a less uniform view on this matter. In all cases, extradition is a matter governed by treaty or convention.

Without a treaty or convention obligation, there is no duty for a state to surrender a fugitive to another state for trial. The United States is signatory to the Montevideo Convention of 1933, a multilateral treaty that includes many Latin American States. Unfortunately, under this convention, extraditionary practice is not uniform. A number of countries including the United States too reservations to the convention whereby the surrender of nationals of the surrendering state is optional. These exceptions generally have not been to the advantage of the United States in cases relating to anti-drug smuggling enforcement.

For an offense to be extraditable under customary international law it must be a felony in both states. Political and strictly military offenses usually are excluded from extradition treaties.

There are only four exceptions to the sovereignty of the state over persons. These are:

1. Sovereign immunity

2. The absolute immunity of a visiting head of state

3. Diplomatic immunity, and,

4. Where provided by treaty, consular immunity

The various partial immunities of warship crews do not flow from any of these well-established customs but from a different set of naval customs, treaties, and status of forces agreements. As a result of divergent sources of law, warship crew immunities by comparison; unlike sovereign, diplomatic and consular immunities are not nearly as uniform from state to state.

TO BE CONTINUED; NEXT AN IN-DEPTH LOOK AT STATUS OF FORCES AGREEMENT
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STATUS OF FORCES AGREEMENTS

STATUS OF FORCES AGREEMENTS

Status of Forces Agreements are a service-wide examination subject for senior and master chiefs and should be an area of concern for the entire commissioned officer corps any senior petty officer subject to shore patrol duty. Many U.S. status of forces follow the pattern of the North Atlantic Treaty Organization (NATO) Status of Forces Agreement. This agreement defines on a multilateral basis the jurisdictional arrangement of allied military personnel stationed in countries signatory to NATO. This agreement has provided the pattern for other similar agreements with various allied Pacific powers. A review of some of its key features provides insight into the general subject.

Article VII of the NATO Status of Forces Agreement spells out the jurisdictional regime. Its key features include:

"1. The military authorities of the sending state exercise within the receiving state all criminal and disciplinary jurisdiction conferred on them by by the law of the sending state over all persons subject to the military law of that state. (It should be noted, U.S. Supreme Court decisions rule that the U.S. military may not administer military law over its civilian employees in peace time, even when deployed on foreign soil.

2. The authorities of the receiving state shall have jurisdiction over members of a force or civilian component and their dependents and their dependents with respect to offenses committed within the territory of the receiving state and punishable by the law of that state.

3. The military authorities of the sending state shall have the right to exercise exclusive jurisdiction over persons subject to military law of that state with respect to offenses, including offenses relating to its security, punishable by the law of the sending state, but not by the law of the receiving state.

4. The authorities of the receiving state shall have the right to exercise exclusive jurisdiction over members of a force or civilian component and their dependents with respect to offenses, including offenses relating to the security of that state , punishable by its law but not by the law of the sending state. A "security offense" includes:

(a) Treason
(b) Sabbotage, espionage, or violation of any law relating to official secrets

5. In cases where the right to exercise jurisdiction is concurrent, the following rules apply:
(a) The military authorities of the sending state have the primary right to exercise jurisdiction over a member of a force or of a civilian component in relation to:
(i) Offenses solely against property or security of that state, or offenses solely against the person or property of another member of the force or civilian component of that state or of a dependent.
(ii) Offenses arising out of any act or omission done in the performance of official duty.

(b) In the case of any other offense, the authorities of the receiving state shall have the primary right to exercise jurisdiction.

(c) If the state having the primary right decides not to exercise jurisdiction it shall notify the authorities of the other state as soon as practicable. The authorities of the state having the primary right shall give sympathetic consideration for a request from the authorities of the other state for a waiver of its right in cases where that other state considers such waiver to be of particular importance.

6. The foregoing provisions of this Article shall not imply any right for military authorities of the sending state to exercise jurisdiction over persons who are nationals of or ordinarily resident in the receiving state, unless they are members of the force of the sending state.

7. (a) The authorities of the receiving and sending states shall assist each other in the arrest of members of a force or civilian component or their dependents in the territory of the receiving state and in handing them over to the authority which is to exercise jurisdiction in accordance with the above provisions.

(b) The authorities of the receiving state shall notify promptly the military authorities of the sending state of the arrest of any member of a force or civilian component or dependent.

(c) The custody of an accused member of a force or civilian component over whom the receiving state is to exercise jurisdiction shall, if he is in the hands of the sending state, remain with that state until he is charged by the receiving state.

8. (a) The authorities of the receiving and sending states shall assist each other in the carrying out of all necessary investigations into offenses and in the collection and production of evidence, including the seizure and, in proper cases , the handing over of objects connected with an offense; the handing over of such objects, may however be made subject to their return within the time specified by the authority delivering them.

(b) The authorities of the contracting parties shall notify one another of the disposition of all cases in which there are concurrent rights to exercise jurisdiction.

9. (a) A death sentence shall not be carried out in the receiving state by authorities of the sending state if the legislation of the receiving state does not provide for such punishment in a similar case.

(b) The authorities of the receiving state shall give sympathetic consideration to a request from the authorities for assistance in carrying out a sentence of imprisonment pronounced by the authorities of the sending state under the provisions of this Article within the territory of the receiving state.

10. Where an accused has been tried in accordance with the provisions of this Article by the authorities of one contracting party and has been acquitted, or has been convicted and is serving his sentence, or has been pardoned, he may not be tried again for the same offense within the same territory by authorities of another contracting party. However, nothing in this paragraph shall prevent the military authorities of the sending state from trying a member of its force for any violation of the rules of discipline arising from an act or omission which constituted an offense for which he was tried by the authorities of another contracting party.

11. Whenever a member of a force or civilian component or a dependent is prosecuted under the jurisdiction of the receiving state he shall be entitled-

(a) to a prompt and speedy trial;

(b) to be informed, in advance of trial , of the specific charge or charges made against him;

(c) to be confronted with witnesses against him;

(d) to have compulsory process for obtaining witnesses in his favor, if they are within the
jurisdiction of the receiving state;

(e) to have legal representation of his own choice for his defense or to have free or assisted
legal representation under the conditions prevailing for the time being in the receiving state;

(f) if he considers it necessary, to have the services of a competent interpreter; and

(g) to communicate with a representative of the government of the sending state and, when the
rules of the court permit, to have a representative present at his trial.

12. (a) Regularly constituted military units or formations of a force shall have the right to police any camps, or establishments or other premises which they occupy as a result of an agreement with the receiving state. The military police of the force may take all appropriate measures to ensure the maintenance of order and security on such premises.
(b) Outside these premises, such military police shall be employed only subject to arrangements with the authorities of the receiving state and in liaison with those authorities, and in so far as such employment is necessary to maintain discipline and order among the members of the force.

13. Each contracting party shall seek such legislation as deemed necessary to ensure the adequate security and protection within its territory of installations, equipment, property, records and official information of other contracting parties, and the punishment of persons who may contravene laws enacted for that purpose."

All of the foregoing not withstanding, the U.S. Supreme Court has declared that court-martial jurisdiction over civilians in peace time is unconstitutional. Thus, despite provisions to the contrary in Status of Forces Agreements, Department of Defense civilian personnel aboard are generally not subject to the Uniform Code of Military Justice (UCMJ) in other than time of declared war. Such personnel are generally subject to the courts of the receiving state, as provided in the Status of Forces Agreement. In war time the U.S. military retains the constitutional right to try civilian employees by court-martial. The Court of Military Appeals has interpreted "wartime" to mean only a war declared by congress.

CONCLUSION:

Upon the territorial seas, internal waters, and in ports, international law and regulation are very effectively enforced. The commercial ship master or naval commander entering this realm must have a general understanding of the privileges and immunities that apply to his class of vessel. If the vessel is a merchant vessel, very few privileges and immunities attach as the ship is totally subject to the receiving state. If the vessel is a warship, the ship itself is virtually immune as is the crew while aboard. When the warship's crew goes ashore the situation becomes more complex. The best guides to those complexities in most places where U.S. warships regularly call is the applicable status of Forces agreement, if one applies. The knowledge of status of forces agreements should not be confined to commanding and executive officers but should extend all the way to the senior petty officer level.

TO BE CONTINUED: NEXT THE START OF THE SUBJECTS ASSOCIATED WITH WAR AT SEA AND IN THE LITTORAL ZONE.
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THE LAW OF ARMED CONFLICT:

INTRODUCTION:

The rules of "war" as they pertain to most practical elements of concern to sailors, Coast Guardsmen, and marines are neatly contained in the U.S. Navy publication "The Law of Armed Conflict (NAVEDTRA 1112-A). This publication addresses practical concerns in both blue and brown water environments and to some degree addresses matters of land warfare as well. Here are some of the basics.

CERTAIN TARGETS, TACTICS, AND TECHNIQUES ARE FORBIDDEN:

In combat you may attack and kill "lawful combatants" possessed of the means and will to engage in combat. Lawful combatants are generally members of a military force or civilian personnel actually armed and engaged in hostilities. Notice that this definition of "lawful combatants" is different from the definition for "lawful combatants" used to determine who is eligible for prisoner of war (POW) status. To qualify for POW status personnel must be part of a national force, the definition in terms of who a force may engage under rules of engagement derived from the law of armed conflict is broad enough to include terrorists and international criminal organization members at certain times and places and when they use certain tactics, and show signs of military like organization. The State of Texas at this writing would like the Congress of the United States to declare the Mexican Drug Cartel the "ZETAS" and others to be eligible for engagement by U.S.military forces. The ZETAS originated with a group of Mexican Army special forces deserters and now exhibit military like tactics and weapons in their encroachments into the counties of Texas bordering the Rio Grande. So far the Congress has paid little or no attention to the request so the threat still has to be engaged by law enforcement officers operating under police type use of force policies. We do note that the State police forces of Texas have commissioned patrol craft with belt fed machine guns and equipped two companies of Texas Rangers in line with the weaponry and tactics usually associated with army recon units; but so far the Zetas officially have to be engaged by law enforcement agencies, tactics, and weapons. The law of armed conflict is designed on the assumption that the armed combatants designing area or operations specific rules of engagement based on the law, are engaged in an armed conflict authorized by their government. The enemy may well be a non state organization and determined to not follow any rules or extend any humanitarian consideration. Nonetheless nations engaging such outlaws with military force follow the law of armed conflict.

Under the law of armed conflict forbidden targets include all persons who are not "lawful combatants" for the purpose of targeting. The list of protected persons would include unarmed, unengaged civilians; chaplains, medical personnel, prisoners, surrendering combatants, combatants under or displaying a signal of surrender or white flag, ejected air crewmen, and others. Forbidden targets generally include certain classes of buildings such as churches and hospitals, vessels like hospital ships and certain rescue craft, and any buildings, vessels, or installations whose destruction is not militarily necessary.

Certain tactics are forbidden in that there limits on how a sailor, marine, or Coast Guardsman may engage the enemy. One example of a forbidden tactic is the use of a surrender signal to bring the enemy closer to an ambush.

Certain techniques are also forbidden. For example you may not modify your personal weapon to increase enemy suffering.

In summary the basics of the Law of Armed Conflict that must be mastered by every member of an armed force consists of a detailed knowledge of the forbidden targets,tactics, and techniques precluded by international law. Additionally, every member of a particular force element in a combat operation should know the rules of engagement. The rules of engagement are provided by military authorities for each operation and vary with the circumstances. However, all rules of engagement must conform to the Law of Armed Conflict.

TO BE CONTINUED; NEXT, LAW ENFORCEMENT OPERATIONS

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LAW ENFORCEMENT ACTIONS

LAW ENFORCEMENT ACTIONS:

LAw enforcement actions particularly under U.S. Coast Guard authority are subject to more severe limitations on the use of deadly force than those found under the Law of Armed Conflict. The Coast Guard Commandant's use of force policy guides Coast Guard and naval units on which Coast Guardsmen may be embarked in such operations. The Coast Guard Commandant's Use of Force Policy precludes firing at anyone who has not shown a weapon and the hostile intent to use it. The policy forbids firing at fleeing felons who have not used deadly force. Contrast this with the Law of Armed Conflict which allows pursuit and fire upon fleeing enemy forces unless or until they turn to surrender. The Commandant's Use of Force policy anticipates that Coast Guard law enforcement patrols may be subject to armed attack by military or paramilitary forces. The Commandant's policy incorporates the Law of Armed Conflict for such engagements. Upon the judgement of the senior commissioned officer present that an attack is by military or paramilitary forces, the Coast Guard personnel may repel such an attack in conformance with the Law of Armed Conflict. The most important change this shift would make in terms of Coast Guard tactics is that any opposing force member could be fired upon without sighting a weapon. Even suspected positions could be fired upon if fire would not carry to a prohibited target and the tactic is not prohibited by any relevant local Rules of Engagement.

Unfortunately, many Coast Guard patrol elements have no commissioned officer present. It is doubtful that anyone would prosecute a senior petty officer who adopted more aggressive tactics to repel an attack that came with military-like force. However, such a petty officer, without a ruling by a commissioned officer that the attack is military in or paramilitary in character would be ill advised to pursue, cut off, and ambush such attackers as allowed under the Law of Armed Conflict. Such a Coast Guard petty officer could pursue, cut off, confront, and attempt to arrest such attackers returning fire if fired upon or threatened with a weapon.

TO BE CONTINUED: NEXT, MORE DETAILED RULES ON THE LAW OF ARMED CONFLICT
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MORE DETAILED RULES ON THE LAW OF ARMED CONFLICT

As stated earlier , the practical aspects of the Law of Armed Conflict deal with forbidden targets, tactics, ans weapons. Let's examine these in more detail.

TARGETS:

Among human beings ONLY LAWFUL COMBATANTS ARE PROPER TARGETS, again as previously mentioned, "lawful" in this sense means engaged directly in combat for targeting purposes "lawful combatants" may be "lawful" in the sense that they are proper members of nation state military forces, or they may be "unlawful" as in terrorists or other combatants taking to arms for reasons other than the orders of a national sovereign.

Sea services personnel should not assume everyone in uniform is a lawful combatant for targeting purposes. All persons participating in military operations or activities are considered combatants. All others are not considered combatants. While uniformed military personnel are combatants, their uniformed medical and religious personnel must be considered non-combatants. The presence of non combatant uniformed personnel aboard an otherwise permitted target such as a combatant ship or boat does not preclude attack upon a target. However, sniping at corpsmen or stretcher bearers in the field would be prohibited.

Guerrillas often mix with civilians and dress in civilian cloths complicating the task of sorting out the combatants from the non-combatants. However, armed civilians attacking your position certainly are considered combatants.

Non combatants must not be attacked. Non-combatants include not only enemy civilians, medical personnel, and chaplains but also prisoners of war, and enemy shipwrecked, sick, and wounded personnel. To quote the Law of Armed Conflict (NAVEDTRA 112-A:

"Humane treatment of non-combatants mat produce valuable information or active support for you, and can deny support for the enemy. Mistreatment only serves the interest of the enemy.

TO BE CONTINUED: NEXT, Destruction and your mission, protected property, medical symbols, forbidden tactics.
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LIMITS OF DESTRUCTION; PROTECTED PROPERTY, SYMBOLS,AND FORBIDDEN TACTICS:

YOU MAY NOT CAUSE DESTRUCTION BEYOND THE REQUIREMENTS OF YOUR MISSION

Undefended villages, towns, or cities, civilian vessels that are not part of an enemy's force structure may not be attacked. However, civilian vessels serving the enemy's war effort are legitimate targets of attack. Enemy troops, equipment and supplies encountered in a village or city may be engaged. However if a patrol receives fire from one building in an urban area, fire may be returned to the source only. You may not level a town or village under most circumstances. To quote from the Law of Armed Conflict (NAVEDTRA 112-A):

\ "The rule is that you should not create more destruction than necessary to accomplish your mission. When you use firepower in a populated area you must attack only the military target."

YOU MAY NOT ATTACK PROTECTED PROPERTY

Protected property includes buildings dedicated to cultural or humanitarian purposes such as churches, hospitals, clinics, schools, orphanages, or museums. These places remain protected so long as the enemy does not use them for military operations.

YOU MAY NOT FIRE UPON MEDICAL SYMBOLS SUCH AS THE RED CROSS OR RED CRESCENT

Generally such symbols will be red with a white background. You are obligated to learn to recognize the symbols employed by your enemy,

FORBIDDEN TACTICS

NEVER HIDE BEHIND MEDICAL SERVICE SYMBOLS. Never mark your position or yourself with a medical service emblem unless you have been designated to perform only medical duties.

THINK TWICE ABOUT FIRING AT A PARACHUTE

Air crewmen abandoning a plane have protected status, similar to shipwrecked sailors. You may not fire on a parachute of an air crewman. Paratroopers on the other hand are legitimate combatants and may be fired upon while still in the air.

DO NOT FIRE AT SHIPWRECKED ENEMY PERSONNEL IN THE WATER AND TO THE MAXIMUM EXTENT POSSIBLE UNDER THE CIRCUMSTANCES, TAKE CARE OF THOSE LEFT TO THE MERCY OF THE SEA.

NEVER ALTER YOUR WEAPON OR AMMUNITION TO INCREASE ENEMY SUFFERING.

The weapons and ammunition issued to you are in full accordance with the Law of Armed Conflict. This law does not allow you to alter the weapon or the ammunition and forbids such ammunition as "dum dum" rounds or hollow point ammunition

TO BE CONTINUED: NEXT, THE ENEMY IN YOUR HANDS.
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THE ENEMY IN YOUR HANDS

THE ENEMY IN YOUR HANDS:

When enemy personnel fall into your hands you have a number of obligations under various conventions. First and foremost you must let enemy personnel surrender. It is unlawful to fire on an enemy who has signaled surrender. Compliance with the Geneva Convention requires that you TREAT ALL CAPTIVES AND DETAINEES HUMANELY. Acts of reprisal or revenge against any captive is unlawful. You may not use coercion in questioning captives. You must, to the best of your ability provide medical care for sick and wounded captives. While you must take from captives weapons, and items of military or intelligence value such as maps and military documents, you may not take personal property from captives. Only a commissioned officer may order money taken from a captive. When this is done a receipt must be issued to the captive. The Geneva Convention also forbids taking personal property from enemy dead or their mutilation. The convention also provides that while POWs may perform some work, they may not be required to work in support of the war effort or under any conditions that endanger their health. Most especially, captives may not be used as a shield, or for mine and bobby trap removal, or as bearers of ammunition and heavy gear.

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YOU IN THE HANDS OF THE ENEMY

YOU IN THE HANDS OF THE ENEMY:

Should you fall into enemy hands in combat as a marine, sailor or coast guardsman you are a "Prisoner of war" with certain rights and duties spelled out under the Geneva Convention and U.S. military law. Should you fall into enemy hands as a merchant mariner participating in or supplying a military operation you may be a "prisoner of war" or a "detainee" depending on your ship's and your personal relationship with the Department of Defense. Medical and religious personnel are "detainees". Under international law "detainees" such as medical personnel may only be required to work at medical duties. Detainees other than military detainees such as merchant men may also be exempt from certain U.S. military law governing the behavior of "prisoners of war". For example, detainees other than a military detainee may not be under an obligation to attempt escape. However, all U.S. maritime personnel whether detainee or prisoner of war are well advised to know and follow their duties under U.S. and international law and to keep faith with their fellow prisoners. Under U.S. and international law all captives and detainees have specific rights and obligations.

TO BE CONTINUED: Next, specific rights and obligations of American POWs and detainees.
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YOUR SPECIFIC RIGHTS AND DUTIES AS A PRISONER OF WAR

Under U.S. and International law all "captives and detainees" have the following rights and obligations:

1. You are bound to provide your captors your name, rank, and identification number. Note you are obligated to give your rank not your rating. Thus naval personnel would identify themselves as a "Petty Officer Second Class" vice "Gunner's Mate Second Class". On some classes of naval ships the enemy may be very interested in questioning certain ratings. Merchant marine personnel indicate whether they are "certified seamen" or "licensed officers". If pressed, revelation of ratings or specifics of a license is not prohibited for merchant marine personnel.

2. All U.S. captives and detainees are required by U.S. law to avoid answering questions to the utmost of their ability.

3. Captors are obligated by international law to allow you to communicate the fact of your capture to U.S. authorities and your family in writing.

4. Captors are obligated by the Geneva Convention to allow visitation and inspection of POW camps by "supervising powers", that is neutral states and international humanitarian organizations such as the International Red Cross.

5. Captors are obligated by the Geneva Convention to treat captives and detainees humanely, refrain from the use of coercion in questioning, provide medical care for sick and wounded captives, and respect the personal property of captives and the rules for assignment of work captives.

6. Captives and detainees are obligated by U.S. law to keep faith with each other, back up the senior military prisoner as commander, maintaining a chain of command between and among the captives and detainees.

7. Captives and detainees are obligated by U.S. law to avoid making statements detrimental to the U.S. or admitting to any sort of crime. Under international law an admission to a "war crime" can be used to change the status of a prisoner of war or detainee to a criminal. Such prisoner may be legally removed from a POW camp , housed within the captor's criminal prison system, tried, imprisoned, or executed. It is always worth resisting any attempt to get you to make damaging statements of any sort.

8. Military captives and detainees are obligated by U.S. law to try and escape and/or assist others in trying to escape. Under international law, however, escape may not involve violence. However, peaceful evasive escape is recognized under international law as obligation of military personnel. Captors may not punish escape attempts beyond humane disciplinary measures such as isolated or higher security level confinement, withholding of true privileges but not humane basics.

9. U.S. law requires the senior military member of any U.S. group and /or detainees to take charge and speak for the group. all junior military personnel are obligated to back up their senior to the utmost of their ability. Non-military detainees should also submit to this "chain of command". If isolated from a military group, non -military prisoners should retain the "chain of command" from their merchant ship if applicable, or in a mixed civilian group elect a leadership system. If remixed with military prisoners later, any civilian group should subordinate itself to the senior allied military prisoner.

10. Commissioned officers may resist assignment of other than administrative work by captors. Non-commissioned officers may resist any but supervisory work. Such resistance helps maintain the internal prisoners chain of command and frustrates enemy efforts at destroying the chain of command and gaining a higher level of control over the prisoners. Such resistance is allowed under international law and encouraged under U.S. military law.

11. Military captives may not accept parole or special favors from the enemy. Detainees are well-advised to follow this policy as well with the possible exception of early repatriation.Non-military detainees, thought not critical to a war effort, may be repatriated at times prior to the cessation of hostilities. If early repatriation involves "strings" and "conditions" detainees are advised to avoid it.

12. All captives and detainees should recall that they are U.S. military members and/ or citizens and will be held accountable upon repatriation for their behavior while a prisoner.

Enemy civilians that fall under your control must, by international and national law be protected from acts of violence, threats, and insults. Enemy civilians may be moved or resettled if urgently required for military reasons. In any such move, action must be taken to insure their safety. The Geneva Conventions forbid retaliating against civilians for actions of enemy military personnel. Military personnel may not confiscate non-military items.

JUNIOR PERSONNEL SHOULD REMEMBER THAT YOU CANNOT BE ORDERED TO COMMIT A CRIME. YOU MAY USE FORCE TO PREVENT A WAR CRIME BUT DEADLY FORCE IS JUSTIFIED ONLY TO PROTECT LIFE AND ONLY UNDER CONDITIONS OF EXTREME NECESSITY AS A LAST RESORT. REPORT ANY CRIMINAL ACT IMMEDIATELY THROUGH YOUR CHAIN OF COMMAND.

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POSTSCRIPT

Much of admiralty and maritime law is in fact a reflection of national codification and enforcement of international maritime convention obligations. Often, in our experience in maritime claims, we found that research beyond national law and regulation into underlying conventions brought to light applicable codes and standards useful to resolution of the claim, recognizable by the court, but not found in national law or regulation or incorporated by reference. As Coast Guardsman working in inspections with a large Captain of the Port Office , we had at least occasional need of consular services, and occasionally local consular offices were a source of complaint. At that level the entire inspection work force from junior petty officers to lieutenant commanders needed an understanding of the privileges and immunities of war ships and merchant men. Those of us who advanced as enlisted Coast Guardsmen to the Senior Chief Petty Officer level had to answer advancement examination questions on Status of Forces Agreements. Surely every maritime attorney or paralegal, every junior Navy or Coast Guard officer, and many senior petty officers and Marine Corps commissioned and non commissioned officers need a fundamental working knowledge of maritime international law.

The purpose of this book has been to provide an introduction to well established enduring principles of Maritime International Law. Once this primer has been completed a maritime professional should study the particulars of the concepts, and conventions most important to the particular work he or she is engaged in. To assist you in locating such works a suggested reading list follows.

   AAB RECOMMENDED





     AAB RECOMMENDED
   AAB RECOMMENDED

THE ENDURING PRINCIPALS OF MARITIME INTERNATIONAL LAW

THE ENDURING PRINCIPLES OF MARITIME INTERNATIONAL LAW

SYMBOLS OF MARITIME INTERNATIONAL LAW

SO WHAT IS INTERNATIONAL LAW ANYWAY?

INTERNATIONAL LAW MAY BE SUBDIVIDED INTO AT LEAST THREE DISTINCT AREAS OF STUDY:

SOURCES OF MARITIME INTERNATIONAL LAW

THE CONCEPT OF SOVEREIGNTY IN MARITIME INTERNATIONAL LAW

INTRODUCTION:

THE LIMITS OF SOVEREIGNTY

SOVEREIGNTY MAY NOT BE EXTENDED OVER THE COMMONS

THE RIGHTS AND DUTIES OF STATES:

TERRITORY AND THE COMMONS

LAND AS A KEY TO TO THE CONCEPT OF TERRITORY

LAND:

LAND:

RIGHTS AND DUTIES OF FOREIGN SHIPS IN THE TERRITORIAL SEA

HOT PURSUIT

THE OTHER COMMONS:

THE OTHER COMMONS INCLUDE :

THE HIGH SEAS DEFINED:

THE SERVITUDES THAT THE HIGH SEAS ARE SUBJECT TO:

THE HIGH SEAS-ISSUES OTHER THAN SERVITUDES

RULES FOR THE TERRITORIAL SEAS, INTERNAL WATERS, AND PORTS

PRIVILEGES AND IMMUNITIES OF WARSHIPS

WARSHIPS AND ASYLUM AN AMERICAN VIEW:

THE WARSHIP'S CREW

THE LAW OF PERSONS:

STATUS OF FORCES AGREEMENTS

THE LAW OF ARMED CONFLICT:

LAW ENFORCEMENT ACTIONS

LAW ENFORCEMENT ACTIONS:

MORE ON THE LAW OF ARMED CONFLICT:

LIMITS OF DESTRUCTION; PROTECTED PROPERTY, SYMBOLS,AND FORBIDDEN TACTICS:

YOU MAY NOT CAUSE DESTRUCTION BEYOND THE REQUIREMENTS OF YOUR MISSION

THE ENEMY IN YOUR HANDS

THE ENEMY IN YOUR HANDS:

YOU IN THE HANDS OF THE ENEMY

YOU IN THE HANDS OF THE ENEMY:

YOUR SPECIFIC RIGHTS AND DUTIES AS A PRISONER OF WAR

POSTSCRIPT

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