Abstract
The rules of international law governing the use of force at sea as a measure of law enforcement by coastal States were developed primarily by the decisions of international courts and tribunals and secondarily by a law-making treaty. Different rules apply to the threat or use of force in inter-State relations.
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Notes
- 1.
- 2.
Entered into force on 11 December 2001.
- 3.
Entered into force on 16 November 1994.
- 4.
II YBILC (1956) at p. 297.
- 5.
Sorensen 1958, p. 229 (cited in Whiteman’s Digest of International Law, vol. IV p. 869). State practice is in line with this description.
- 6.
Shearer 1986, p. 341. Professor Shearer participated in the Conference as a delegate.
- 7.
ICJ: Fisheries Jurisdiction (Spain v. Canada), Judgment (4 December 1998), para 80.
- 8.
Arbitral Tibunal: S.S. “I’m Alone” (Canada/United States of America), Award (30 June 1933).
- 9.
International Commission of Inquiry: Red Crusader Incident (Denmark/United Kingdom), Report (23 March 1962).
- 10.
Fisheries Jurisdiction (Spain v. Canada), supra n. 7.
- 11.
ITLOS: M/V “Saiga” (no. 2) (Saint Vincent and the Grenadines v. Guinea), Judgement (1 July 1999).
- 12.
I’m Alone, supra n. 8, p. 1617.
- 13.
Fitzmaurice 1936, p. 99.
- 14.
Red Crusader, supra n. 9, p. 485.
- 15.
O’Connell 1984, p. 1073.
- 16.
Poulantzas 2002, p. 237.
- 17.
In the earlier Fisheries Jurisdiction cases brought by the UK and Germany against Iceland, complaints were made of harassment by the Icelandic coastguard of British and German fishing vessels by actions such as cutting warps and ramming, leading in the view of the two Applicants to legal responsibility on the part of the Respondent. However, no complaint was made under Article 2.4. of the UN Charter, presumably because the two Applicants did not consider that provision to be relevant or applicable. ICJ: Fisheries Jurisdiction (United Kingdom v. Iceland), Judgment (2 February 1973), pp. 3 and 182.
- 18.
Fisheries Jurisdiction (Spain v. Canada), supra n. 7, pp. 432–466.
- 19.
Saiga (no. 2), supra n. 11, pp. 10–63.
- 20.
Ibidem, para 159.
- 21.
Ibidem, para 156.
- 22.
PCA/UNCLOS Arbitral Tribunal: Guyana v. Suriname, Award (17 September 2007).
- 23.
The arbitrators were Judge D. Nelson, Professor T. Franck, Dr K. Hossain, Professor I. Shearer and Professor H. Smit.
- 24.
Fietta 2008, p. 119; Colson and Smith (Eds), International Maritime Boundaries, vol. VI, p. 4236 (Report No. 3-10(Add.1)) and the survey by the present writer at p. 4119.
- 25.
Guyana v. Suriname, supra n. 22, para 410.
- 26.
Ibidem, para 439.
- 27.
The addition of the word “unavoidable” appears to depart from the formula in the Fish Stocks Agreement in the sense that the obligation to “avoid” the use of force in Article 22 is subject to some exceptions.
- 28.
Guyana v. Suriname, supra n. 22, paras 476 and 484.
- 29.
Ibidem, paras 479–482 and 486.
- 30.
For a survey, see Kwast 2008, p. 49.
- 31.
ICJ: Legality of the Threat or Use of Nuclear Weapons, Advisory Op. (8 July 1996), pp. 226–246.
- 32.
For example, the ICJ: Aegean Sea Continental Shelf (Greece v. Turkey), Order (11 September 1976).
- 33.
Treves 2006, p. 417.
- 34.
Letters dated 1 and 4 September 1980 from the Permanent Representative of Malta to the President of the Security Council, Security Council documents S/14140 and S/14147 (1980). According to Malta, Libya ordered the captain of the rig to cease operations, threatening force. Malta considered that the Libyan actions were a “use of force”, “unwarranted and provocative threats”, “menacing” and “illegal” (without further elaboration), arguing that they constituted a threat to regional and international peace, as well as an act of molestation. This incident in 1980 had some parallels with the incident between Suriname and Guyana. In this sense, the action off Suriname cannot be said to have been unprecedented: indeed, Libya went much further than Suriname in actually using force by mooring a warship against the rig. This Libyan action appears to have been an act of self-help, rather than a measure of law enforcement.
- 35.
The I’m Alone and Red Crusader cases can be said to belong to this category.
- 36.
Judge Treves was the President of the Seabed Disputes Chamber when it issued its Advisory Opinion (ITLOS: Responsibility and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area, Seabed Disputes Chamber, Advisory Op. (1 February 2011)).
- 37.
For instance, PCIJ: S.S. “Lotus” (France v. Turkey), Judgment (7 September 1927), concerning penal jurisdiction in collision cases was in effect reversed by international conventions, including today Article 97 UNCLOS.
- 38.
Themes examined in Anderson 2008, chapter 2, esp. pp. 40–43.
- 39.
Pellet 2006, p. 784.
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Anderson, D.H. (2013). Some Aspects of the Use of Force in Maritime Law Enforcement. In: Boschiero, N., Scovazzi, T., Pitea, C., Ragni, C. (eds) International Courts and the Development of International Law. T.M.C. Asser Press, The Hague, The Netherlands. https://doi.org/10.1007/978-90-6704-894-1_18
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