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The Regime of Straits and National Security: An Appraisal of International Lawmaking

Published online by Cambridge University Press:  27 February 2017

W. Michael Reisman
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Extract

The United States military potential may be viewed in two interlocking dimensions. The first is nuclear deterrence: the maintenance of a posture designed to deter other states with nuclear military potential from nuclear adventures. The second is comprised of nuclear and more conventional capabilities, designed to communicate to the widest spectrum of adversaries a capacity and willingness to exercise coercion in different settings in order to protect vital national interests.

Type
Research Article
Information
American Journal of International Law , Volume 74 , Issue 1 , January 1980 , pp. 48 - 76
Copyright
Copyright © American Society of International Law 1980

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References

1 Regarding the impacts of norms on naval activity, see Knight, The Law of the Sea and Naval Missions, 103 U.S. Naval Institute Proceedings 34 (1977); Osgood, U.S. Security Interests in Ocean Law, in A. Hollick & R. Osgood, New Era of Ocean Politics 75 (1974); Hill, U.S. Law of the Sea Position and its Effect on the Operating Navy: A Naval Officer’s View, 3 Ocean Dev. & Int’l L.J. 341 (1976). For a more extreme view, see O’Connell’s remarks in Britain and the Sea (Papers and Records of a Conference at the Royal Naval College, Greenwich, September 12–14, 1973); O’Connell, International Law and Contemporary Naval Operations, 44 Brit. Y.B. Int’l L. 19 (1970).

2 Some perspectives are offered in Pickett, , Airlift and Military Intervention, in The Limits of Military Intervention 137 (Stern ed. 1977)Google Scholar.

3 Statement delivered before the Committee on the Peaceful Uses of the Seabed and the Ocean Floor Beyond Limits of National Jurisdiction on March 23, 1971, quoted in Lapidoth, Freedom of Navigation—Its Legal History and its Normative Basis, 6 J. Mar. L. & Com. 259–72 (1975). Where goals are stated in functional terms, it is important to test the institutional arrangements for their realization functionally, for in conventional terms, there may appear to be inequalities. Functional goals may be fulfilled when one state exercises virtual plenary jurisdiction in waters within 12 miles of its coast, while another, whose coasts front on a strait, may enjoy considerably less jurisdiction. The test here is not formal equality but whether the goal is approximated.

4 I do not minimize the substantial interests of coastal states in establishing regimes to deal effectively with the increasingly intensive and potentially noxious uses of their coastal waters. Young writes, “No underinsured, ill-equipped, ill-navigated, chartless, flag-of-convenienoe-registered 250,000 ton tanker can ever be ‘innocent’ in the English Channel or the Malacca Strait, or, should it find itself there, in the Canadian Arctic.” Young, New Laws for Old Navies: Military Implications of the Law of the Sea, 16 Survival 262, 265 (1974). Obviously, an acceptable regime must protect those interests, but unless it is compatible with minimum order requirements, no interests will survive. In many circumstances, it should be plain that coastal interests may be enhanced by not enlarging coastal competence: see note 48 infra. In other circumstances, organizational and normative design may accommodate freedom of navigation and coastal interest, e.g., in absolute liability standards, insurance schemes, and punitive damages. See, e.g., the statement of John R. Stevenson before Subcommittee II of the Seabed Committee, July 28, 1972, UN Doc. A/AC.138/SC.II/SR.37, at 2 (1972), cited in Knight, Issues before the Third UN Conference, 34 La. L. Rev. 155, 184 (1974). For an earlier discussion, see Lauterpacht, E., Freedom of Transit in International Law, 44 Grotius Society Transactions 313, esp. 319–20 (1958–59)Google Scholar.

5 For general background, see Green, P., Deadly Logic : The Theory of Nuclear Deterrence (1966)Google Scholar; Jones, R., Nuclear Deterrence: A Short Political Analysis (1968)Google Scholar; Kahn, H., Thinking About The Unthinkable (1962)Google Scholar; Legault, A., The Dynamics of the Nuclear Balance (1974)Google Scholar; Maxwell, S., Rationality in Deterrence (1968)Google Scholar; Morgan, P., Deterrence: A Conceptual Analysis (1977)Google Scholar; Rosecrance, R., Strategic Deterrence Reconsidered (1975)Google Scholar; George, A. & Smoke, R., Deterrence in American Foreign Policy: Theory and Practice (1974)Google Scholar. For historical and comparative perspectives, see Naroll, R., Military Deterrence in History: A Pilot Cross-Historical Survey (1974)Google Scholar.

6 On submarine warfare, see Rathjens & Ruina, Trident, in The Future of the Seabased Deterrent 66 (Tsipis, Cahn, & Feld, eds., 1973); Hill, Maritime Power and the Law of the Sea, 17 Survival 70 (1975); Garwin, Antisubmarine Warfare and National Security, in Progress in Arms Control? Readings from Scientific American 82–94 (Russett & Blair, eds. 1979), and see the editors’ Introduction, id. at 30–31; R. H. Smith, ASW—The Crucial Naval Challenge, 98 U.S. Naval Institute Proceedings 126–41 (1972); Scoville, Missile Submarines and National Security, 226 Scientific Am. 18 (1972), reprinted in Russett & Blair eds., this note supra; Polmar & Paolucci, Sea-Based “Strategic” Weapons for the 1980’s and Beyond, 104/5 U.S. Naval Institute Proceedings 98 (1978); Hoist, The Navies of the Superpowers: Motives, Forces, Prospects, in Power at Sea, II: Superpowers and Navies 4 (Adelphi Papers No. 123, 1976).’ For a more popular presentation, see Stanford, The Deadly ‘Move to Sea,’ N.Y. Times Magazine, September 21, 1975.

7 Kissinger’s Critique, The Economist (London), February 3, 1979, at 17, 18. The development was anticipated almost 20 years ago by Dr. Oskar Morgenstern:

The United States can make its force invulnerable by hardening. . . . But this has the simple consequence that these sites will come under correspondingly heavier attack. Their locations in the United States . , . are perfectly known to the enemy. With modern missile technology it is easy to nullify any degree of hardening by the dispatch of more missiles with more and more powerful nuclear warheads. Hardened bases draw heavier fire, mostly ground bursts producing deadly fall-out that spreads throughout the continent. . . .

Morgenstern, Effective and Secure Deterrence, The Oceanic System, [1960] RCAF Staff C.J., reprinted in Polmar & Paolucci, supra note 6, at 107.

8 The major vulnerability of airpower is that it must get off the ground. Land-based missiles may become unacceptably vulnerable in the next decade as the USSR’s throw-weight increases. To counter this development, defense specialists seek to increase the number of launch points, which, in turn, incites public resistance in the neighborhoods where siting is projected. SLBM’s do not present these problems; moreover, they often traverse shorter distances, making them more effective and advantageous.

Thus, Morgenstern, with extraordinary prescience, argued:

Indeed, we must go further and place the major part of the retaliatory force outside our country . . . on the vast expanses of the world’s oceans, in fact under the waters. We then combine through the use of nuclear-powered, missile-firing Polaris submarines the tremendous advantages of mobility with invisibility; and we can distribute individual units randomly, thereby makng surprise attack on any even remotely substantial part of that force impossible. I call this the Oceanic System of Defense.

Morgenstern, supra note 7, at 107.

9 H. Lasswell, World Politics and Personal Insecurity 40 (1935; Free Press Paperback, 1965). See also E. Luttwak, the Political Uses of Seapower 1–38 (1974). Young, supra note 4, argues at 266 that “probably no naval vessel can now count on being freely allowed passage through straits in time of trouble, whatever the small print of the relevant convention might say.” The comparative certainty of that statement will be affected by the normative regime that results; the latter will certainly influence the degree of freedom of passage in noncrisis periods, when the military instrument continues to be important.

10 See generally, E. Luttwak, note 9 supra; McGwire, Changing Naval Operations and Military Intervention, in Stern ed., supra note 2, at 151; Feld, Military Demonstrations: Intervention and the Flag, id. at 197; Cable, J., Gunboat Diplomacy (1971)Google Scholar. In this respect, Pirtle’s comments would appear to miss the point. Obviously, the depth and breadth of straits make them susceptible to blockage or mining during intense belligerency: Patterson, Mining: A Naval Strategy, 23 Naval War C. Rev. 52 (1971). This vulnerability must be factored into calculations by all parties who may even discover a common interest in keeping the straits open in those periods. But a key concern of an appropriate maritime regime is to keep the straits maximally open in non- and prebelligerent situations: Pirtle, Transit Rights and U.S. Security Interests in International Straits: The “Straits Debate” Revisited, 5 Ocean Dev. & Int’l L.J. 492 (1978). In his emphasis on power alone, Pirtle, like Young (note 9 supra), would appear to misunderstand the general function of law in the power arena.

11 For an excellent discussion, see Kruger-Sprencel, F., The Role of NATO in the Use of the Sea and the Seabed (Woodrow Wilson International Center for Scholars Ocean Ser. No. 304, 1972)Google Scholar.

12 “Antisubmarine Warfare,” World Armaments and Disarmament, SIPRI Y.B. 1974, at 303, 304.

13 Id. at 304. These conclusions will not be accepted by American or Soviet strategists who view strategic forces as being not only deterrent, but also as war fighting; they will obviously desire to threaten the second-strike capabilities of the adversary, a sequence with which this article will not deal.

14 Professor Burke has argued that “[t]here appears to be a very insubstantial basis for concluding that the security position of the powers employing nuclear or other submarines would be materially prejudiced by requiring these craft to travel on the surface through straits or other parts of the territorial sea.” W. Burke, Contemporary Law of the Sea: Transportation, Communication and Flight 12 (Law of the Sea Institute Occasional Paper No. 28, Univ. of R.I., 1975). Burke implies in a footnote that the development of underwater surveillance systems makes undetected passage through straits improbable: if this is the case, there is cogency to his argument. But the works he cites to support his contention are at best ambivalent on this point and at worst directly contrary to it. After a discussion of all the surveillance systems designed to locate submarines, one of the cited works observes:

Acoustic countermeasures designed to confuse the sonar devices of an opponent seem to offer considerable opportunity for effective innovation. Torpedoes carrying recorded submarine sounds, which are now employed to test and practice the use of acoustic homing torpedoes, can be easily modified to spoof the sounds of a submarine in order to confuse even the most sophisticated passive sonar. Jamming of the large passive arrays with noise makers is relatively easy since, unlike the case of electromagnetic radiation, the relevant frequency band is rather limited and can be easily covered. Other counter-ASW measures include the reduction of the acoustic cross-section of submarines by using smaller hulls made of reinforced plastics and titanium, or using fuel cells (developed for space use) that will replace the cumbersome and relatively noisy reactor with a much quieter power crew; such power plants can give future hunter-killer submarines the speed and depth characteristics of the considerably larger and noisier nuclear-power craft.

Sipri, Tactical and Strategic Anti-Submarine Warfare “31 (1974).

But the piece continues, “In several countries work is going on to develop torpedo-countermeasure resistance (counter-countermeasures) and achieve sonar improvements that aim at neutralizing acoustic countermeasure efforts.” Once perfected, if not sooner, such efforts will probably result in still another round of countermeasures. To the same effect Pirtle contends that the operationalization of the Trident system, with its increased range and accuracy, will minimize the importance of straits passage for submarines. Pirtle, supra note 10, at 488. Like Burke, Pirtle does not address some of the considerations raised in the cited SIPRI studies. Neither considers that the common interests in the global deterrence system may require that both the United States and the USSR enjoy plenary navigation rights through straits.

Nor should changes in technology alone be invoked to devaluate straits for U.S. security. Adversaries may have or may acquire means for detecting submerged passage of U.S. vessels through straits, but that does not terminate the utility of a right of submerged passage. There are many actors who will not have that means of detection, and secrecy of passage may still have strategic value with regard to interactions with them.

15 See generally Dean, The Geneva Conference on the Law of the Sea: What Was Accomplished, 52 AJIL 607 (1958). See also Slonim, The Right of Innocent Passage and the 1958 Geneva Conference on the Law of the Sea, 5 Colum. J. Transnat’l L. 96 (1966). Oddly enough, the U.S. delegation espoused a number of positions actually contrary to its interests. For example, it supported a subjective conception of innocent passage, and when it undertook its unsuccessful démarche for a 6-mile territorial sea, it did not insist on a straits exception. One can only speculate as to whether these were blunders or the result of an appraisal of the then political dependency of key straits states.

16 Convention on the Territorial Sea and the Contiguous Zone (1958), 15 UST 1606, TIAS No. 5639, 516 UNTS 205 [hereinafter referred to as “Territorial Sea Convention” without additional citation]. Convention on the High Seas (1958), 13 UST 2312, TIAS No. 5200, 420 UNTS 82 [hereinafter referred to as “High Seas Convention” without additional citation].

17 Third United Nations Conference on the Law of the Sea, Revised Informal Composite Negotiating Text for the Eighth Session, UN Doc. A/CONF.62/WP.10/Rev.1 (April 28, 1979), reprinted in 18 ILM 686 (1979). Research for this article was based on the Informal Composite Negotiating Text (ICNT) of 1977, but the provisions concerned are cited from the more recent ICNT/Rev.1, where only minor changes were made in them.

18 This article does not address the related issues of the adequacy to security concerns of the regimes for the exclusive economic zone and for archipelagos; some of the problems treated here arise in those regimes as well. For example, Articles 56 to 58 transform certainties about many inclusive high seas rights into grave questions with only the most general guidelines for decision (see, e.g., Article 59). Treatment of these matters must await an additional article.

19 On the unfortunate predilection for textualism in international legal interpretation, see, e.g., U.S. Nationals in Morocco case, [1952] ICJ Rep. 196, 199, and, most recently, Aegean Sea Continental Shelf case, [1978] ICJ Rep. 20 ff. The Vienna Convention’s codification in Articles 31 and 32 provides:

Article 31

General rule of interpretation

  • 1.

    1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

  • 2.

    2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:

    • (a)

      (a) any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty;

    • (b)

      (b) any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.

  • 3.

    3. There shall be taken into account, together with the context:

    • (a)

      (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;

    • (b)

      (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;

    • (c)

      (c) any relevant rules of international law applicable in the relations between the parties.

  • 4.

    4. A special meaning shall be given to a term if it is established that the parties so intended.

Article 32

Supplementary means of interpretation

Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:

  • (a)

    (a) leaves the meaning ambiguous or obscure; or

  • (b)

    (b) leads to a result which is manifestly absurd or unreasonable.

Vienna Convention on the Law of Treaties, May 22, 1969, UN Doc. A/CONF.39/27, reprinted in 63 AJIL 875 (1969), 8 ILM 679 (1969). On the issue of “special meanings” of terms and burden of proof, see Official Records, UN Conference on the Law of Treaties, Documents of the Conference 42, UN Doc. A/CONF.39/11/ Add.2 (1971). With regard to supplementary means of interpretation, note that Article 32 requires that the party seeking to adduce the supplement show that an interpretation without that material would be ambiguous, obscure, manifestly absurd, or unreasonable. That is a high threshold, indeed.

20 The records of UNCLOS summarize speeches on straits passage made on the record in the 1974 Caracas and 1975 Geneva sessions. Key statements on straits passage may be found in Volume 1 of the Official Records at pp. 59, 60, 63, 68, 71–72, 74, 75–76, 79, 80–81, 84, 85, 86, 87, 91, 92, 94, 96, 98, 99, 100–01, 104, 108, 110, 111, 113, 114–15, 116, 118, 119, 124, 125, 127, 128, 129, 131, 132, 135, 136, 137, 141, 142, 144, 146, 148, 151, 152, 153, 155, 159, 160, 168, 169, 172, 178, 187. In Volume II of the Official Records, key statements may be found at pp. 124—42.

It would be a misnomer to refer to these pages as evidence of a “discussion”; they appear, rather, as a series of prepared and read statements, with no interaction between the speakers evident. To cite one example, at the 26th meeting of the Plenary on July 2, 1974, Mongolia, Yugoslavia, Tanzania, Mauritania, and India spoke in succession. Mongolia called for free passage through all international straits. Yugoslavia affirmed coastal jurisdiction “to effectively guarantee their security and to safeguard their legitimate interests”; “commercial navigation” for “permissible and legitimate purposes” should also be guaranteed. Tanzania then contended that the entire notion of freedom of the seas was outmoded, and Mauritania followed by calling for innocent passage through straits. The circle was closed by India which called for free passage. 1 Official Records 91–93 (1975).

Professor Burke, who has criticized commentators for construing the ICNT textually, concedes that there are no adequate legislative histories, and the records of different groups meeting in closed or secret meetings are not available. Burke, Submerged Passage Through Straits: Interpretations of the Proposed Law of the Sea Treaty Text, 52 Wash. L. Rev. 193, 202-03 (1977). The artful interpreter may, of course, pick and choose and cut and trim speeches from the meetings, but it is really quite difficult to see how this sort of record can help to illuminate a text. Off-the-record and secret meetings, in which transcripts may have been made, might indicate the actual line of consensus (if any), but the probative value of such records against the text and against the official record is a matter of question. As yet there is no systematic study of the theory and practice of the use of travaux in international interpretation. Thus, both lex lata and t he otiose but actually meager record of this draft impel the interpreter to the text. Even with adequate travaux, a construction contra legem rather than praeter legem is most difficult to sustain, especially during periods shortly after the text was accepted. For the special problems involved in construing statements in interest by the United States and inferring acquiescence by others, see note 63 infra.

21 See generally, McDougal, M. & Burke, W., Public Order of the Oceans 751 et seq. (1962)Google Scholar; Colombos, J., International Law of the Sea 64 (6th rev. ed. 1967)Google Scholar; for historical background, see Potter, P., the Freedom of the Seas (1924)Google Scholar; for military implications, see Deddish, The Right of Passage by Warships through International Straits, 24 Jag J. 79 (December 1969–January 1970).

22 Gidel, G., 1 Le Droit International Public de la Mer 236 (1932)Google Scholar; McDougal, M. & Burke, W., supra note 21, at 869 et seq; The S.S. Lotus, [1927] PCIJ ser. A, No. 10, at 25 Google Scholar; The Jessie, The Thomas F. Bayard, and the Pescawha (Great Britain v. United States), 1 Ann. Dig. 175, Reports: Neilsen’s 429 (1926); and see The Le Louis, [1817] 2 Dodson, [1853] Eng. Adm. R. 210.

23 [1949] ICJ Rep. 4, 29.

24 See note 19 supra.

25 For discussion of the waxing and then waning of the 3–mile rule, see S. Swarztrauber, The Three-Mile Limit of Territorial Seas (1972).

26 Fisheries Jurisdiction (Judgment), [1974] ICJ Rep. 3, 26.

27 See, in this regard, Arbitration between the United Kingdom of Great Britain and Northern Ireland and the French Republic on the Delimitation of the Continental Shelf, Decision of 30 June 1977, HMSO Cmnd. 7438, Misc. No. 15 (1978), reprinted in 18 ILM 397 (1979); and see especially the concurring opinion of Judge Briggs at 120 (ILM at p. 457).

28 “It no longer seems to be seriously doubted that a 12-mile territorial sea has been established by customary international law, or soon will be unless a trend develops toward even wider limits.” Burke, Submerged Passage, supra note 20, at 194 n.6.

29 One of the more alarming aspects of the straits debate has been the identification of those straits that are currently indispensable as the maximum number of straits likely to be indispensable in the future. Pirtle, for example, writes that “[a]lthough all straits serve the same navigation function, straits unrelated to ‘lifelines’ or military objectives can be factored out of the national security equation.” Supra note 10, at 487. This type of extrapolation represents the most primitive form of policy analysis and should be eschewed. The relative importance of different avenues of the oceans in the future will depend on technics, contexts, and needs which cannot be envisaged now. It should be clear that the prudent course is not to surrender any of these maritime highways if it can be avoided. Where they must be sacrificed, it is foolish to persuade ourselves of their triviality, since it induces us to concede them for less and less. For a persuasive statement, see Grandison & Myer, International Straits, Global Communications and The Evolving Law of the Sea, 8 Vand. J. Transnat’l L. 393, 414–15 (1975). But see U.S. Dep’t of State, Office of the Geographeh, Maps Relating to the Law of the Sea, No. 6, World Straits Affected by a Twelve– Mile Territorial Sea. See also Knight, The 1971 United States Proposals on the Breadth of the Territorial Sea and Passage Through International Straits, 51 Ore. L. Rev. 759, 772 (1972).

30 On innocent passage in general, see M. McDoucal & W. Burke, supra note 21, at 174 et seq; J. Colombos, supra note 21, at 132–35. See also Restatement (Second) of Foreign Relations $45; Fitzmaurice, The Law and Procedure of the International Court of Justice: General Principles and Substantive Law, 27 Brit. Y.B. Int’l L. 1, 28–29 (1950); Deddish, supra note 21. On Soviet theories, see Butler, W. E., Soviet Concepts of Innocent Passage, 7 Harv. Int’l L.J. 113, and The Soviet Union and the Law of the Sea 51–70 (1971)Google Scholar. See also Przetacznik, Freedom of ‘Navigation Through Territorial Sea and International Straits, 55 Rev. Droit Int’l Sciences Diplomatiques & Politiques 222, 299 (1977). Some useful though dated discussion of the customary right of innocent passage and its relevance to nonsignatories of the 1958 convention may be found in Donat-Pharand, Innocent Passage in the Arctic, 6 Can. Y.B. Int’l L. 3 (1968).

31 There is, unfortunately, no concise term to denote a passage that is “not innocent.” “Noxious” passage seems too strong in connotation, especially in the light of the criteria proposed by the ICNT. The interest in precision would appear to outweigh the interest in elegance. I will’ use the term “noninnocent” passage to designate passage that fails one of the tests of the 1958 convention or the ICNT.

32 Burke, Contemporary Law of the Sea, supra note 14, at 11.

33 Id. at 12.

34 This assumption, which would predispose the interpreter to construe restrictively coastal state competences to limit innocent passage, would appear to be unwarranted if the innocent passage provisions of the ICNT are compared with those of the 1958 convention. ICNT Article 19 introduces so many new limitations on innocent passage that the counter–assumption that the test intends to increase coastal state competence would appear to be the better working hypothesis.

35 Judgment No. 1 (Merits), [1923] PCIJ ser. A, No. 1.

36 Id. at 28.

37 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), [1970] 1CJ Rep. 16, 55 et seq.

38 On this, see Grandison & Meyer, supra note 29, at 419.

39 Burt, Madrid Bans Refueling for F–15’s on Visit to Saudis, N.Y. Times, Jan. 13, 1979, 51, at 3 (city ed.).

40 Art. VIII (2), Agreement in Implementation of Chapter VIII of the Agreement of Friendship and Cooperation between the United States and Spain, August 6, 1970, 21 UST 2259, TIAS No. 6977.

41 Pirtle, supra note 10, at 481.

42 Burke, Contemporary Law of the Sea, supra note 14, at 38. But compare his curious reversal in Submerged Passage, note 20 supra, at 209–10.

43 [1949] ICJ Rep. 4.

44 Geography outweighs use in this formula. Ironically, a tribunal could not compute the quantum of use of a strait which might have been intended to fulfill the use requirement so that it could internationalize the strait. Compare The Case of the Edisto and Eastwind, 57 Dep’t State Bull. 362 (1967); Pharand, Soviet Union Warns United States Against Use of Northeast Passage, 62 AJIL 927 (1968). The controversy, by no means settled, of the “innocence” of warships for passage purposes, will thus be transferred to many straits situations. See, in this regard, Przetacznik, supra note 30, at 302–15.

45 See, in this regard, the pertinent remarks of Knight, supra note 29, at 772.

46 65 Dep’t State Bull. 266 (1971). Thus, John Stevenson in a statement to Subcommittee II of the Seabed Committee, July 28, 1972: “The United States and others have also made it clear that their vital interests require that agreement on twelve mile territorial sea be coupled with agreement on free transit of straits used for international navigation and these remain basic elements of our national policy which we will not sacrifice.” Supra note 4.

For an early review, see Ratiner, United States Ocean Policy: An Analysis, 2 J. Mar. L. & Com. 225, 263–64 (1971); Knight, supra note 29, at 773. See also Cundick, International Straits: The Right of Access, 5 Ga. J. Int’l & Comp. L. 107 (1975). Five years after the 1971 proposal, an official explained U.S. objectives as follows: “. . . what we seek is freedom of navigation (i.e., submerged transit) and overflight for the purpose of transit in straits connecting high seas to high seas. We oppose the restrictions of innocent passage in such straits. . . .” Letter of Stuart French, U.S. Department of Defense, to Senator John C. Stennis (Aug. 11, 1976), quoted in Burke, Submerged Passage, supra note 20, at 218–19.

47 UN Doc. A/CONF.62/C.2/L.10 (1973), at 189–90, Art. 2(e).

48 Much has been made of the coastal state’s interest in having submarines pass on the surface through straits. While concern for navigation and for rules of the road may be valid, there would appear to be no increment of coastal security in having submarines surface when proximate to the coastal state. Indeed, these arguments seem to be based on a misperception of the distinctive nature of the submarine’s function and a confusion of the submarine with surface vessels. Even if the transiting submarine were targeting sites within the coastal state, it would not have to approach the state, since the range of its missiles would permit it to stand off beyond territorial or straits waters. As for showing the flag, that traditional naval function can only be accomplished when the sub has surfaced. The likelihood that the submarine will become a target for nuclear or conventional attack and set off, theoretically, secondary nuclear explosions or radiation contamination increases with increased visibility to adversaries. From a security standpoint, the coastal state’s safety increases the less others know of the transiting submarine’s whereabouts. It is thus more likely that the coastal state’s demand for surface transit is based either on misunderstanding of the situation or the desire to increase its competence in order to augment power vis–à–vis the transiting state.

49 Pirtle, supra note 10, at 486.

50 Letter from Senator Barry Goldwater to the author, July 23, 1976.

51 Carter, The Outlook for the Territorial Sea and Navigation through Straits and on the High Seas, in Marine Technology Society, Law of the Sea Reports 135, 136 (1972).

52 Ibid.

53 Knauss, The Military Role in the Oceans and Its Relations to the Law of the Sea in Law of the Sea: A New Geneva Conference 77 (L. Alexander ed. 1972). But compare Goldblat, Law of the Sea and the Security of Coastal States in Law of the Sea: Caracas and Beyond 301 (Christy et al. eds. 1975).

54 Thus Professor Burke, writing in 1975, observed:

Another contention is that safety requires submerged transit. It seems rather late in the date to urge this seriously in view of the previously wide acceptance of a requirement for surface transit in the territorial sea, including acceptance by the major powers operating nuclear submarines. There may be substance to this point, but concern for safety can be satisfied in other ways more consonant with coastal interests than simply providing for unannounced submerged passage by large nuclear-powered vessels carrying nuclear weapons.

Contemporary Law of the Sea, supra note 14, at 12.

55 Burke argues on the basis of textual analysis that “Article 38 does not authorize the coastal state to determine what is a ‘normal’ mode of transit each time a vehicle approaches a strait.” Submerged Passage, supra note 20, at 214. That may be so, but the ICNT would appear to permit the coastal state to determine or participate in determining “normal mode” for classes of vessels and/or for specific time periods, e.g., periods of crisis.

56 Stevenson & Oxman, The Third United Nations Conference on The Law of the Sea, 69 AJIL 1, 15 (1975).

57 One would, in this regard, take exception to Professor O’Connell’s view that free transit would permit one

to go through using your sonar, with helicopters engaged in dunking sonar operations, with missiles unhoused, etc., etc., and doing a zig-zag pattern and the like, all of which one would assume you could do in the high seas but not in the territorial seas engaged in innocent passage.

Britain and the Sea (Papers and Records of a Conference at the Royal Naval College, Greenwich, 1973), cited in Young, supra note 4. To the contrary, it would appear that the words “normal mode,” reasonably construed, would limit many of the operations in Professor O’Connell’s reductio. Compare Knight, supra note 29, at 773, especially the reference to “on-board activities.”

58 Despite Professor Burke’s assertion (Submerged Passage, supra note 20, at 208), it is difficult to see how the qualifications of ICNT Articles 38 and 39 could be as easily fulfilled by a submarine as a surface vessel. With regard to Article 38(1 )(c), for example, how can one tell if a passing submerged vessel is or is not preparing to cause injury?

59 Article 31(2)(a), UN Doc. A/CONF.39/27 (1969), Documents of the Conference, supra note 19, at 287, 293.

60 Controversy Concerning the Beagle Channel Region [Chile v. Argentina] (Santiago 1977).

61 See generally North Atlantic Coast Fisheries Arbitration (United States v. Great Britain), Hague Ct. Rep. (Scott) 141 (Perm. Ct. Arb. 1913), Permanent Court of Arbitration, North Atlantic Coast Fisheries Arbitration, Vols. 1–12 (Washington: GPO, 1913); Wimbledon, S.S., [1923] PCIJ ser. A, No. 1 Google Scholar; Rights of Passage, [1960] ICJ Rep. 6; for a survey of the literature, see O’Connell, D., 2 International Law 602 et seq. (2d ed. 1970)Google Scholar.

62 [1960] ICJ Rep. 6.

63 Goldwater letter, supra note 50. Professor Burke develops another conception of “understanding.” He sifts “comments, questions and proposals” about submerged passage and finds that these confirm, in his judgment, an understanding shared by participants that submarines would have a right of submerged transit through straits. Submerged Passage, supra note 20, at 205. There are many serious problems with this approach. The first, as mentioned, is that there is no record to speak of, but only fragments; how probative such a record would be is open to grave question. The second is that many of the statements that are available can be disqualified for interest. The fact that the United States, for example, continued to insist on its understanding of an equivocal text (see id. at 206) neither banishes the obvious equivocality of the text nor proves that others accepted the interpretation pressed by the United States. It simply proves that the text is equivocal and that the United States, unable to secure a text that clearly expressed its interest, had no choice but to say petulantly, “Well, this is what we mean.” Alas, the objective in this game is not to make statements, off the board, but to win the text that you need. Third, the acquiescence by others is derived essentially from the absence of evidence in the “record” that others did not object. Whatever the chairmen of individual committees may have thought, recent diplomatic history should demonstrate the peril of this course. In negotiations with the People’s Republic of China over Taiwan, the United States apparently satisfied itself with an understanding based on its own statement, which was not challenged by China. At a later stage, China “clarified” its position and the U.S. “understanding” dissolved. Despite all of the alleged “understanding” he tries to reconstruct, Professor Burke is still somewhat cautious about conclusions; in a single page, he shifts from an “unmistakable” right of submerged passage, to “little room for question,” and then “strongly suggests” (id. at 207). The ambivalence is important. The point of the present inquiry is not that submerged passage is excluded, but that it is not certain in the” text, and, in the absence of express confirmation, is unlikely to defeat coastal competences which are explicit and could be used to require surface passage and, in some circumstances, ban passage and overflight.

64 This hypothetical strategy is reminiscent of Boss Hague’s apothegm that an honest politician is one who stays bought. The notion that bilateral agreements with particular states are sound strategy for matters of the sort discussed here rests on the assumption that association of a state with one alliance or another is stable. Recent experience in Iran, Ethiopia, Afghanistan, Somalia, Vietnam, and China, to mention only a few, should demonstrate to both superpowers the advantages of a system of real rather than personal rights, for uses deemed to be of inclusive security concern.

65 U.S. Dep’t of State, Pub. No. 8954, The Camp David Summit (Near East and South Asian Ser. 88, 1978), cited from 17 ILM 1463, 1470 (1978).

66 W. Empson, Seven Types of Ambiguity (1930).