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The Gulf of Sidra Incident

Published online by Cambridge University Press:  27 February 2017

Yehuda Z. Blum
Yehuda Z. Blum*
Affiliation:
Hebrew University, Jerusalem
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Extract

The clashes in the Gulf of Sidra (off the coast of Libya) between the navies of the United States and Libya in the last week of March 1986 have brought to the fore once again some legal problems surrounding the Libyan claims regarding the juridical status of the body of water in question.

Type
Current Developments
Information
American Journal of International Law , Volume 80 , Issue 3 , July 1986 , pp. 668 - 677
Copyright
Copyright © American Society of International Law 1986

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References

1 See English translation of the article (prepared by UN Secretariat) in National Legislation and Treaties Relating to the Law of the Sea 14, UN Doc. ST/LEG/SER.B/16 (1974).

2 Note from Libyan Ministry for Foreign Affairs, dated Nov. 29, 1955, received by UN Secretariat, Laws and Regulations on the Regime of the Territorial Sea 32, UN Doc. ST/LEG/SER.B/6 (1957) (emphasis added).

3 The text of the Libyan announcement was provided to the UN Secretariat by the Permanent Mission of Libya to the United Nations in a Note Verbale of Oct. 19, 1973 and reproduced in National Legislation and Treaties Relating to the Law of the Sea 26–27, UN Doc. ST/LEG/SER.B/18 (1976).

4 Contemporary Practice of the United States, 68 AJIL 510–11 (1974); 1974 Digest of United States Practice in International Law 293–94.

The United States has also protested subsequent Libyan regulations aimed at implementing the Libyan proclamation of 1973. Referring to the Libyan navigational regulations, effective June 1, 1985, the Permanent Representative of the United States to the United Nations, in a communication dated July 10, 1985 and addressed to the Secretary-General, stated, inter alia:

Regulation 10 of the . . . [Libyan] notice to mariners requires that vessels strictly comply with directives pertaining to the so-called prohibited zones. . . . Zone C, as specified in regulation 10, lies within the Gulf of Sidra.. . . The United States reiterates its rejection of the Libyan claim that the Gulf of Sidra constitutes internal waters . . . and, accordingly, the United States rejects as an unlawful interference with the freedoms of navigation and overflight and related high seas freedoms, the Libyan claim to prohibit navigation in Zone C or elsewhere in the Gulf of Sidra.

UN Law of the Sea Bull., No. 6, October 1985, at 40.

5 Fisheries case (UK v. Nor.), 1951 ICJ Rep. 116 (Judgment of Dec. 18).

6 Art. 4(1), Territorial Sea Convention, Apr. 29, 1958, 15 UST 1606, TIAS No. 5639, 516 UNTS205; Art. 7(1), 1982 UN Law of the Sea Convention, opened for signature Dec. 10, 1982, reprinted in United Nations, the Law of the Sea: United Nations Convention on the Law of the Sea (UN Pub. Sales No. E.83.V.5).

7 Art. 4(2) of the 1958 Territorial Sea Convention; Art. 7(3) of the 1982 UN Convention. This provision closely follows the dictum of the ICJ in the Anglo-Norwegian Fisheries case where the Court ruled that’ ‘the drawing of base-lines must not depart to any appreciable extent from the general direction of the coast.” 1951 ICJ Rep. at 133. The Court also referred to “the close dependence of the territorial sea upon the land domain. It is the land which confers upon the coastal State a right to the water off its coasts.” Id.

8 On the concept of “historic bays” in general, see Strohl, M., The International Law of Bays 251–331 (1963)Google Scholar; Bouchez, L., The Regime of Bays in International Law 199–239 (1964)Google Scholar; Blum, Y., Historic Titles in International Law 241–81 (1965)Google Scholar. Of the most recent studies on this topic, see Goldie, , Historic Bays in International Law—An Impressionistic Overview , 11 Syracuse J. Int’l L. & Com. 211 (1984)Google Scholar.

9 Under Articles 7(2) of the 1958 Territorial Sea Convention and 10(2) of the 1982 UN Convention, a “bay,” for the purposes of those articles, must be a “well-marked indentation” that constitutes “more than a mere curvature of the coast” and whose area is “as large, or larger than, that of a semi-circle whose diameter is a line drawn across the mouth of that indentation.” If one were to apply the semicircular area rule to the Gulf of Sidra, it would apparently not qualify as a “bay,” since the length of the closing line (the diameter of the circle) is about 300 miles, and the area of the required semicircle thus roughly 35,000 square miles. The water area enclosed by the Libyan line, however, is only about 22,000 square miles.

10 Article 7(6) of the 1958 Territorial Sea Convention states that those provisions “shall not apply,” etc.

11 See also to this effect M. Strohl, supra note 8, at 252, where he states that “it can probably be demonstrated that the universal application of. . . [the] rule [regarding the maximum closing line of 24 miles], as well as that of the semi–circular area rule, might be repugnant to the interests of the littoral State in the case of a particular bay, without significantly benefiting the whole aggregate of States.” See also the UN Secretariat study Juridical Regime of Historic Waters, including Historic Bays, UN Doc. A/CN.4/143 (1962), reprinted in [1962] 2 Y.B. Int’l L. Comm’n at 1, 2, UN Doc. A/CN.4/SER.A/1962/Add.1.

12 Art. 7(4) of the 1958 Territorial Sea Convention; Art. 10(4) of the 1982 UN Convention.

13 Art. 7(5) of the 1958 Territorial Sea Convention; Art. 10(5) of the 1982 UN Convention.

14 Apr. 29, 1958, 13 UST 2312, TIAS No. 5200, 450 UNTS 82, In the 1982 Convention, Article 87(1) provides that “the high seas are open to all States,” while Article 89 states that “no State may validly purport to subject any part of the high seas to its sovereignty.”

15 See text at note 2 supra. The subsequent extension, in 1959, of Libya’s territorial sea from 6 to 12 miles (see note 1 supra and accompanying text) does not affect the method of delimitation of the territorial sea, namely, the principle that the territorial sea is measured—and very properly so—–from the coast, as stated explicitly in the 1955 Libyan Note.

16 This silence also has been remarked upon by Rousseau: “La doctrine récente ne range pas le golfe de la Grande Syrte . . . dans la catégorie des baies historiques soit reconnues par les Etats tiers, soit revendiquées par les Etats riverains. . . .” 78 Rev. Générale de Droit International Public 1177, 1178 (1974). Rousseau mentions in this connection particularly the silence of Strohl and Bouchez (both supra note 8), which he finds all the more remarkable in view of their extensive discussion of the status of the neighboring Gulf of Gabes.

17 1 United Nations Conference on the Law of the Sea, Official Records, Preparatory Documents 3–10, UN Doc. A/CONF. 13/37 (1958). Admittedly, the bays mentioned in that survey “are cited for the purpose of illustration,” id. at 3, and should not be considered as an exhaustive catalog. Nonetheless, it was pointed out in the Secretariat’s 1962 study on “Historic Waters, including Historic Bays,” supra note 11, at 5, that “it would be difficult to make useful additions” to that list.

In view of the 1973 Libyan announcement, note 3 supra, and the resulting incidents in the Gulf of Sidra (in particular, the incident of Aug. 19, 1981; see notes 21 and 22 infra), the present writer has included the Gulf of Sidra among the bays regarded as historic bays or claimed as such in the entry on “Historic Rights,” published in Encyclopedia of Public International Law, Instalment 7 at 120, 125 (R. Bernhardt ed. 1984).

18 The novel character of the Libyan claim seems to have been admitted implicitly even by the representative of Libya when he told the UN Security Council, on Mar. 27, 1986, that “[i]n 1973 Libya declared its historical and inalienable rights over the Gulf of Sidra.” UN Doc. S/PV.2670, at 31 (1986).

19 As has been pointed out by Charles De Visscher, “the regime of historic bays . . . is one application of effectivity by gradual consolidation of an objective situation. The historic bay is one in which sovereign rights have been effectively exercised by the riparian State . . . continuously and over a long period without opposition from . . . [other] States.” Theory and Reality in Public International Law 322 (rev. ed. trans. Corbett 1968) (emphasis added). See also De Visscher, C., Les Effectivités De Droit International Public 50–51 (1967)Google Scholar; Doehring, , Effectiveness , in Bernhardt, R. (ed.), supra note 17, at 70–74 Google Scholar.

20 See text at note 4 supra.

21 For a more detailed description of that incident and of its diplomatic repercussions, see 27 Keesing’s Contemporary Archives 31, 181–82 (1981). For the text of the U.S. protest transmitted to Libya on Aug. 19, 1981, and for the U.S. version of the incident as reported to the President of the United Nations Security Council, see UN Doc. S/14632 of that date. In the course of the incident, two Libyan aircraft were shot down by U.S. aircraft. It was revealed in 1981 that President Carter was understood in 1980 to have given a standing order to the U.S. Armed Forces not to cross the Libyan line, so as not to exacerbate the Iranian hostage crisis (Keesing’s Contemporary Archives, supra, at 31, 181), but

[t]he end of the hostages crisis and the arrival of President Reagan changed matters. And in August 1981 the administration decided to challenge Libya’s claim to the Gulf. This decision . . . did not represent a radical change in US policy; it was only a shift from the temporarily passive position adopted by President Carter as a result of the inordinate importance which he had given to the hostages crisis.

Booth, K., Law, Force and Diplomacy at Sea 175–76 (1985)Google Scholar.

22 See letter dated Aug. 20, 1981 from the representative of Libya and addressed to the President of the Security Council, UN Doc. S/14636, enclosing a letter from the Libyan Foreign Minister. In that letter, the Foreign Minister refers to the U.S. military maneuvers as part of “the campaign of terror and provocation waged by the United States of America.” While quoting the 1973 Libyan announcement to the effect that the Gulf of Sidra is claimed by Libya as “internal waters beyond which the territorial waters of the Libyan Arab Republic start,” the Foreign Minister somewhat strangely and incongruously maintains in his letter that the U.S. naval exercises “have taken place in an area in the Gulf of . . . Sidra, within the territorial waters of the Libyan Arab Jamahiriya.” W. (emphasis added). The shooting down of the Libyan aircraft was described by the United States as an act of self–defense. UN Doc. S/14632 (1981). It was denounced by Libya as “international terrorism.” UN Doc. S/14636 (1981). The Arab Group at the United Nations called it “aggression” and declared “its total solidarity with Libya.” See Annex to letter dated Aug. 21, 1981 from the representative of Algeria [Chairman of the Arab Group] to the President of the Security Council, UN Doc. S/14638/Rev.1 (1981). It is not without significance that “in February 1983, when Libyan aircraft again approached the US carrier Nimitz in approximately the same area of the Gulf of Sirte as that in which the 1981 incident had taken place, they turned tail without a shot having to be fired.” K. Booth, supra note 21, at 177 (citation omitted).

23 For the U.S. position regarding those incidents, see the statement in the Security Council of Ambassador Vernon Walters, UN Doc. S/PV.2668, at 18–22 (1986). For the Libyan position, see UN Doc. S/PV.2670, at 27–35 (1986).

24 Libya never became a party to the 1958 High Seas Convention; however, as was stated in the second preambular paragraph of that Convention, its provisions were adopted “as generally declaratory of established principles of international law,” and thus constituted a codification of international customary law relating to the high seas. See the first preambular paragraph of the Convention, supra note 14. As such, its provisions are also binding on those states that did not formally become parties to it. While Libya did sign the 1982 UN Law of the Sea Convention (it has not yet ratified it), the various questions arising in connection with the juridical status of the Gulf of Sidra have to be resolved on the basis of events antedating that Convention.

25 See, however, Rousseau, supra note 16, at 1179, who considers the Gulf of Sidra as a historic bay, despite his admission that doctrine has consistently refrained from including the Gulf in this category. Rousseau seems to proceed on the assumption that the assertions made in the Libyan announcement regarding the longtime, effective and uncontested jurisdiction of Libya over the Gulf of Sidra do indeed correspond to historic realities. In the author’s view, these Libyan assertions are totally unsubstantiated and Rousseau has taken them at face value without subjecting them to any critical scrutiny. If anything, the silence of the doctrine—and all the more the 1955 Note of the Libyan Foreign Ministry, supra note 2—is the strongest possible evidence that Libya did not claim any sovereign rights within the Gulf of Sidra (beyond the 6- or 12-mile limit of the territorial sea) prior to 1973, at which time it was already too late to raise new “historic” claims at the expense of the international community.

26 See Francioni, , The Status of the Gulf of Sirte in International Law , 11 Syracuse J. Int’l. L. & Com. 307, 311, 326 (1984)Google Scholar. At the same time, Francioni takes the view that “at least on an intertemporal basis, [the] principle [of reciprocity] would involve an obligation to respect the Libyan claim by those states whose own domestic legislation and international practice has proceeded to the assertion of similarly exceptional claims over their respective coasts.” Id. at 325.

For the meaning and scope of the concept of “opposability” in general, see J. Charpentier, La Reconnaissance en droit international et L’Évolution du droit des gens (1956).

27 See UN Docs. S/PV.2668–2671 (1986).

28 UN Doc. S/PV.2670, at 12 (1986).

29 UN Doc. S/PV.2669, at 32 (1986).

30 Id. at 33–35.

31 Id. at 38.

32 UN Doc. S/PV.2668, at 17 (1986).

33 Thus, e.g., Mr. Maxey asked the Soviet representative:

[D]oes the Soviet Union subscribe or not to the principle of freedom of navigation on the high seas, and does the Soviet Union support, or does it not support the claim which Libya has proclaimed in relation to the Gulf of Sidra? . . . One cannot have it both ways. The Soviet [Union] . . . continue[s] to wish to have it both ways, and the reasons . . . are clear enough to all of us.

UN Doc. S/PV.2670, at 73 (1986). The Soviet representative in his reply stubbornly evaded this issue. Id. at 73–74.

34 UN Doc. S/PV.2669, at 12 (1986).

35 UN Doc. S/PV.2670, at 51–52 (1986). In an obvious attempt to placate Libya, Mr. Maksoud then added: “But there is some logic to Libya’s claim. It may not be universally accepted logic, but it exists.” Id. at 53–55.

36 Id. at 43.

37 Id.

38 UN Doc. S/PV.2671, at 7 (1986).

39 UN Doc. S/PV.2670, at 72 (1986).

40 Suffice it to state here that even Canada’s claim, on historic grounds, to Hudson Bay (with an entrance of 50 miles) has not gone unchallenged. See Colombos, C., International Law of the Sea 186 (6th ed. 1967)Google Scholar; M. Strohl, supra note 8, at 233–50. In comparison, the closing line of the Gulf of Sidra claimed by Libya, as will be recalled, is 300 miles long.

41 K. Booth, supra note 21, at 89 (citations omitted).