International Law for Seagoing Officers, 7th Edition

By Craig H Allen

The seventh edition of this Blue and Gold Series book brings clarity and context to international law for the seagoing professional. This book is the only work that addresses the international law of the sea from the perspective of the United States.

For those who operate on, under and over the sea, international law can sometimes be as complex as it is important. Written by the same former seagoing officer and maritime law professional who authored the current edition of Farwell’s Rules of the Nautical Road, this book was designed to bring clarity and context to international law for the seagoing professional. Following an introduction to public international law and a short history of the law of the sea, the book describes the rules that apply in ports and in the adjacent maritime zones, including the territorial sea, exclusive economic zone, archipelagic waters, and the high seas.  A highlight of the book are the chapters that focus on subjects of greatest interest to the seagoing professional, including military and intelligence activities in the maritime domain, maritime law enforcement activities and the use of force at sea. The appendices include the text of the 1982 UN Convention on the Law of the Sea and the U.S. Senate’s “understandings” of key provisions of the convention. Whether an academy cadet, a midshipman, a seasoned commanding officer, or master mariner, readers of this thorough and timely book will be rewarded with a far greater understanding of the international laws that govern ships and mariners at sea.

New in this edition: 

• Over a dozen new cases by courts and arbitration panels interpreting UNCLOS, including the South China Sea dispute between the Philippines and China.
• Coverage of Commercial Seafarer protections under Maritime Labor Convention.
• Global Responses to the Mediterranean Migrant Crisis.
• Coverage of the law protecting our vital submarine cables. 
• Expanded coverage of unmanned and autonomous vessels and aircraft. 
• Coverage on vessel health safety and quarantine measures applicable in the COVID-19 Pandemic. 
• A new chapter surveying issues the U.S. Senate should consider in any decision regarding ratification of UNCLOS. 
• A new appendix setting out the U.S. Navy and Coast Guard policies on sovereign immunity of government vessels and aircraft. 

• Language: English
• Publisher: Naval Institute Press
• Release date: Nov 15, 2022
• ISBN: 9781682478615

Book preview

Cover: International Law for Seagoing Officers by Craig H. Allen Sr.

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General Naval Tactics

International Law for Seagoing Officers

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NavCivGuide

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Principles of Naval Engineering

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Surface Warfare Officer’s Department Head Guide

Watch Officer’s Guide

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INTERNATIONAL

LAW

FOR

SEAGOING OFFICERS

7TH EDITION

CRAIG H. ALLEN SR.

NAVAL INSTITUTE PRESS

Annapolis, Maryland

Naval Institute Press

291 Wood Road

Annapolis, MD 21402

© 2022 by the U.S. Naval Institute

All rights reserved. No part of this book may be reproduced or utilized in any form or by any means, electronic or mechanical, including photocopying and recording, or by any information storage and retrieval system, without permission in writing from the publisher.

Library of Congress Cataloging-in-Publication Data

Names: Allen, Craig H., 1951– author.

Title: International law for seagoing officers / Craig H. Allen, Sr.

Description: 7th Edition. | Annapolis, Maryland : Naval Institute Press, 2022. | Series: Blue & gold professional library | Includes bibliographical references and index. | Summary: The seventh edition of this Blue and Gold Series book brings clarity and context to international law for the seagoing professional. This book is the only work that addresses the international law of the sea from the perspective of the United States—Provided by publisher.

Identifiers: LCCN 2022021514 | ISBN 9781682478400 (hardcover)

Subjects: LCSH: Law of the sea. | Harbors—Law and legislation. | Contiguous zones (Law of the sea) | Economic zones (Law of the sea) | Territorial waterrs. | Sea-power. | War, Maritime (International law) | United Nations Convention on the Law of the Sea (1982 December 10) | BISAC: LAW / Maritime | HISTORY / Military / Naval

Classification: LCC KZA1145 .A43 2022 | DDC 341.4/5—dc23

LC record available at https://lccn.loc.gov/2022021514

Print editions meet the requirements of ANSI/NISO z39.48–1992 (Permanence of Paper).

Printed in the United States of America.

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First printing

CONTENTS

List of Figures and Tables

List of Acronyms

Preface to the Seventh Edition

Acknowledgments

CHAPTER 1. Introduction to International Law

CHAPTER 2. Historical Development of the Law of the Sea

CHAPTER 3. Baselines and Maritime Boundary Delimitation

CHAPTER 4. Internal Waters, Canals, and Ports

CHAPTER 5. The Territorial Sea, Contiguous Zone, International Straits, and Archipelagic Waters

CHAPTER 6. The Exclusive Economic Zone

CHAPTER 7. The Continental Shelf and International Seabed

CHAPTER 8. The High Seas and Enclosed/Semi-enclosed Seas

CHAPTER 9. Status of Vessels and Aircraft

CHAPTER 10. Marine Stewardship and International Law

CHAPTER 11. Maritime Law Enforcement

CHAPTER 12. Military Activities in the Maritime Domain

CHAPTER 13. Use of Force in the Maritime Domain

CHAPTER 14. State Responsibility, Remedies, and Countermeasures

CHAPTER 15. Dispute Resolution Forums and Procedures

CHAPTER 16. The United States and the Accession Decision

APPENDIX A. Glossary

APPENDIX B. Charter of the United Nations

APPENDIX C. United Nations Convention on the Law of the Sea

APPENDIX D. U.S. Senate Committee on Foreign Relations Draft Declarations, Understandings, and Conditions, 2007

APPENDIX E. U.S. Navy and Coast Guard Sovereign Immunity Policies

Index

FIGURES AND TABLES

FIGURES

FIGURE 1. Legal Boundaries of the Oceans and Airspace

FIGURE 2. A Juridical Bay

FIGURE 3. Maritime Features

FIGURE 4. Straight Baseline across a Deeply Indented Coast

FIGURE 5. Straight Baseline across Fringing Islands

FIGURE 6. Archipelagic Baselines

FIGURE 7. Strait of Hormuz

FIGURE 8. Strait of Gibraltar

FIGURE 9. The Role of Maritime Security Operations

TABLES

TABLE 1. LOS Convention Restrictions on Surveys, Intelligence Collection, and Research Activities

TABLE 2. Coastal State Jurisdiction to Conduct Pollution Investigations

TABLE 3. Actions by the Senate Committee on Foreign Relations on the LOS Convention

ACRONYMS

PREFACE TO THE SEVENTH EDITION

This book was first published in 1956 to bring clarity and context to international law for the seagoing professional. Whether that professional is an academy midshipman or cadet, a seasoned commanding officer or master mariner, or an attorney advising one, the authors’ hope has been, over the years, that the reader will find the book both accessible and useful.

The late Burdick H. Brittin, a retired captain in the U.S. Navy, wrote the first edition of International Law for Seagoing Officers in 1956. Brittin, who served as both a line officer and a judge advocate, distinguished himself as a naval officer early in his career. Just one month after reporting to his first destroyer, he and three other ensigns on board the USS Aylwin (DD 355), moored in Pearl Harbor on 7 December 1941, swiftly got the ship under way on that fateful Sunday morning with less than half the crew aboard, engaging enemy planes while still steaming out of the harbor. The destroyer’s late-arriving commanding officer and executive officer commandeered a whale boat and attempted to rejoin the ship after it had cleared the harbor but were unable to board until the following day. Brittin later saw combat in the Coral Sea, Midway, Kwajalein, Saipan, Guam, Okinawa, the Battle of the Philippine Sea, and the Aleutian Islands. By the end of the war, Brittin had collected thirteen battle stars and had been awarded the Purple Heart and Silver Star, the latter awarded for his conspicuous gallantry and intrepidity as executive officer of the USS Kidd (DD 661) when, although seriously wounded during a kamikaze attack on the destroyer, he took command in the heat of battle after the commanding officer was disabled. In the storied legal career that followed Brittin’s early years as a line officer, he was appointed the first director of the Navy Judge Advocate General Corps’ International Law Division and served on the U.S. delegation to the 1958 and 1982 law of the sea conferences as an adviser to the International Law Commission, as vice chair of the Council on Ocean Law, and as a member of the senior advisory committee of the Woods Hole Oceanographic Institution and the Ocean Science Policy Committee of the National Academy of Sciences.

Captain Brittin authored five editions of this book. In the foreword to the fifth edition, published in 1986, Elliott Richardson, former U.S. ambassador-at-large and chief U.S. delegate to the Third UN Conference on the Law of the Sea, observed that nonfiction books don’t keep going into new editions if they aren’t useful. He described this book as a reliable source of guidance for those whose concerns with ocean space require a firm grasp of the rights and obligations that flow from the principles governing its use.

Much has changed since Richardson penned his 1986 foreword: the Cold War ended (or, more accurately, paused), the Iron Curtain fell, and the Soviet Union dissolved. President Ronald Reagan and Secretary of the Navy John Lehman’s six-hundred-ship Navy was allowed to shrink to fewer than three hundred ships, and although in Battle Force 2045, published in 2020, Secretary of Defense Mark Esper set a goal of a five-hundred-ship Navy—with as many as two hundred forty of them unmanned or optionally manned—serious questions remain regarding the nation’s ability and will to fund, build, crew, maintain, supply, and integrate a fleet that large.

While the Soviet fleet temporarily disappeared, the last decade of the twentieth century and the first two decades of the twenty-first witnessed the rapid buildup of the Chinese navy, coast guard, and militia fleet and the return of Russia. Their expansion was such that Advantage at Sea, the 2020 maritime strategy issued by the chiefs of the three sea services (USN/USMC/USCG), declared, Optimism that China and Russia might become responsible leaders contributing to global security has given way to recognition that they are determined rivals. The 2020 strategy proved prescient when in 2022 Russia invaded Ukraine, and China, usually a vocal supporter of state sovereignty, remained mostly silent, at least in the early weeks after the invasion.

Another change arose from the South China Sea arbitration brought by the Philippines against China, which resolved a number of questions regarding national claims in that vital sea. On 13 July 2020, Secretary of State Mike Pompeo announced that in light of the arbitrators’ decision rejecting China’s nine-dash line claim to the South China Sea, the United States was abandoning its longstanding neutral position on the dispute. The updated U.S. position was later documented in the U.S. Department of State’s Limits in the Seas No. 150, released in January 2022.

The threats to the rules-based global order posed by revisionist regimes in China and Russia are joined by the disquieting conjunction of unpredictable regimes and nuclear weapons and missile programs in North Korea and Iran. In the wake of al Qaida’s attacks on the World Trade Center and Pentagon on 11 September 2001, the United States implemented a multitude of new maritime security measures, stood up two new combatant commands (Northern Command and Africa Command, later joined by Cyber Command and Space Command), and established the Department of Homeland Security. It launched Operation Noble Eagle to protect the homeland, embarked on Operation Enduring Freedom and Operation Iraqi Freedom to vastly expand the military’s global reach, and elevated the operations tempo of maritime security operations for more than a decade. Naval forces from NATO and even China, India, Japan, and Pakistan were dispatched to the African coast in response to a surge in piracy in the greater Indian Ocean. A variety of autonomous and semiautonomous unmanned vehicles (some armed) now ply the world’s airspaces and waters. As many of the world’s traditional fisheries collapsed, catcher fleets shifted to the furthest reaches of the Southern Ocean and began harvesting unexploited species. An emerging green mandate requires vessels to comply with routing measures to protect the environment and marine mammals and has imposed restrictions on sonar usage, waste emissions, and toxic and greenhouse gas emissions. Climate change is progressively reducing the Arctic ice cap, opening that hitherto no-man’s sea to seasonal surface navigation and resource exploitation.

Today’s maritime operators, whether naval or commercial, face a variety of threats, and not just from widely publicized types of piratical attacks. For example, the U.S. Maritime Administration’s 28 February 2022 threat advisory (MSCI2022-003) warned that, in the heavily traveled waters of the Persian Gulf, Strait of Hormuz, Gulf of Oman, Arabian Sea, Gulf of Aden, Bab el Mandeb Strait, Red Sea, and Western Indian Ocean, regional conflict, heightened military activity, and increased political tensions pose threats to merchant vessels. The advisory warns merchant vessels of attacks by armed unmanned aerial vehicles (UAVs); Iranian boardings, detentions, and seizures; limpet mine attacks; explosives-laden boat attacks; missile, rocket, and small arms attacks; navigation and communications disruptions; and piracy. It further states, The U.S. government is continually assessing the maritime security situation in the region to safeguard freedom of navigation; ensure the free flow of commerce; and protect U.S. vessels, personnel, and interests. Additionally, the international community, including the U.S., continues maritime security operations within this region.

One thing has not changed in the intervening years since the sixth edition was published: the United States is still not a party to the 1982 UN Convention on the Law of the Sea. As a nonparty to the global treaty that more than 160 other states have formally acknowledged as the rule set governing the oceans and seas, the United States and its vessels and aircraft occupy a sometimes confusing and often awkward outlier position. The effect of the U.S. position as a nonparty to the convention is emphasized throughout this book. At the same time, the book offers a pragmatic and reasoned approach for addressing the complexities this outlier position adds for all those who operate on, under, and over the sea.

Craig H. Allen Sr.

Judson Falknor Professor of Law Emeritus

University of Washington, Seattle

ACKNOWLEDGMENTS

Over the years, several experts have generously provided advice and/or agreed to review drafts of selected chapters of this book. Although I take full responsibility for any remaining errors or omissions, I want to acknowledge the invaluable contributions to the sixth edition by Captain Joe Baggett, JAGC, USN (Ret.), and later deputy director of the Navy’s Office of the Judge Advocate General, Code 10 International and Operational Law Division (now the National Security Law Division). I am also indebted to members of the Law Department of the U.S. Coast Guard Academy, including Captain Glenn Sulmasy (Ret.), Captain Russ Bowman, and Commander Chris Tribolet (Ret.), for their frequent professional exchanges with me on maritime law enforcement issues during my year as a visiting professor at the academy. I further acknowledge my debt to the expert faculty at the Stockton Center for International Law (formerly the International Law Department) at the U.S. Naval War College, including Professors Raul Pete Pedrozo, James Kraska, Dennis Mandsager, and Jack Grunawalt, and to Peter Dutton and his research team at the Naval War College’s China Maritime Studies Institute. I am also indebted to the staff judge advocate’s team at U.S. Indo-Pacific Command, especially Captain Stacy Pedrozo, for affording me the opportunity to participate in the annual International Military Operations and Law Conferences (MILOPS) and to Harry Scheiber and the other Berkeley Law team members supporting the Law of the Sea Institute conferences.

Finally, I owe a lasting debt to William T. Burke, a teacher, scholar, and mentor, who as a founding pioneer in interdisciplinary law and marine affairs studies introduced me to the law of the sea and inspired my generation to promote the public order of the oceans; to Bernard H. Oxman, Richard A. Hausler Professor of Law at the University of Miami School of Law, and Captain J. Ashley Roach, JAGC, USN (Ret.), for their invaluable scholarship and encouragement over the years; and to Thomas J. Cutler, Gordon England Chair of Professional Naval Literature at the U.S. Naval Institute, who has patiently guided me through the institute’s acquisition and publishing process for the last twenty years.

1

INTRODUCTION TO INTERNATIONAL LAW

Seagoing officers have long understood the importance of international law in their profession. When asked more than two centuries ago to describe the most desirable qualifications in a naval officer, Captain John Paul Jones included familiarity with the principles of international law because such knowledge may often, when cruising at a distance from home, be necessary to protect his flag from insult or his crew from imposition or injury in foreign ports.¹ In Command at Sea, Admiral James Stavridis and Rear Admiral Robert Girrier highlight the importance of international law to commanding officers and stress their obligation to report any violation of international law by U.S. citizens and foreign governments or nationals to their fleet commander, the Chief of Naval Operations, and the local ambassador or consul, via the defense or naval attaché.² Actual or even perceived disregard of the law can have consequences well beyond an insult to the flag. It should therefore come as no surprise that today’s U.S. Navy Regulations require all persons in the Department of the Navy to conform to international law.³ In fact, some sixty articles in the Navy Regulations relate in some degree to international law. Perhaps that is why international law was one of the first subjects taught at the Naval War College,⁴ whose instructors have long cautioned that failure to comply with international law ordinarily involves greater political and economic costs than does observance.⁵

As Captain Burdick Brittin repeatedly emphasized in the prior editions of this book, this is not a lawyer’s law book. Although it is hoped attorneys will find the book helpful, it is primarily intended for seagoing officers who will confront international law questions in their daily operations. It is also not intended to serve as a substitute for official service publications or advice by legal counsel. Happily, officers need no longer resolve the legal aspects of critical at-sea decisions alone. Since the time of Tocqueville,⁶ lawyers have answered the call to help keep the republic strong and true to its founding principles, which include respect for the rule of law. Naval battle groups and Navy–Marine Corps expeditionary groups now have ready access to their group’s deployed staff judge advocate. Additionally, the availability of instant global communications channels provides the commander or master at sea with ready access to expert legal counsel ashore. In applying that legal advice, however, it is important to bear in mind that international law merely sets the floor on prudent action. Just as policy and prudential considerations often dictate that rules of engagement limit the use of force to a greater extent than does international law, the wise seagoing officer will recognize that prudence and professionalism often dictate a course of conduct more exacting than the minimum international law would require.

A. THE SCOPE OF INTERNATIONAL LAW

International law can be defined as the body of rules of conduct, enforceable by external sanctions, that confers rights and imposes obligations primarily, though not exclusively, on sovereign states.⁷ This definition distinguishes rules or norms of behavior that are legally enforceable from those that are not, a distinction overlooked by some international relations texts, which often lump together all norms or rules of behavior without regard to those that are legally enforceable.

The study of international law typically begins with an examination of the history, theories, and sources of international law and its relationship to the domestic law of the individual states. An examination of the concept of the nation, or state, and the related concepts of territorial sovereignty and interstate relations usually follows. In the international context, sovereignty includes an internal dimension that defines the relationship of the state to the persons, objects, and activities within that state’s territory, and an external dimension that governs its foreign relations.⁸ An examination of sovereignty logically leads to a discussion of the nature and limits of the prescriptive and enforcement jurisdiction of states. International law depends for its validity both on the consent of states, as expressed in customs and treaties, and on the existence of an international community of states and individuals. An increasingly important element in any examination of international law is the principle of state responsibility for internationally wrongful acts.

Next for consideration in the study of international law is the status and role of nonstate actors, such as international organizations, corporations, and individuals, along with ships and aircraft, to the extent international law defines the status, rights, or obligations of each. Finally, any study of international law must consider the means and methods for resolving disputes and the rules governing the threat or use of force.

Moving beyond the general overview of public international law, specialized fields of international law include the law of the sea, human rights law, international humanitarian law (also known as the law of armed conflict or the law of war), international criminal law, international environmental law, international trade law, international litigation and arbitration, and the international legal regimes for Antarctica, outer space, and cyberspace. This volume for seagoing officers focuses primarily on the law of the sea, but several other international law topics are also included. For example, the chapter on maritime law enforcement raises questions on the jurisdiction of states, nationality, statelessness, international criminal law, the use of force, human rights, and state responsibility. Thus, while the book is tailored to the needs of the seagoing officer, those needs will often call for an examination of subjects beyond the law of the sea.

B. HISTORICAL BACKGROUND

The historical roots of international law run deep. As early as 1400 BCE, the pharaohs of Egypt and rulers of nearby areas entered into agreements that dealt with the recognition of state sovereignty. They also negotiated arrangements for handling refugees and immigrants. In 500 BCE, the Indian Code of Manu addressed the conduct of warfare and attempted (with little success) to establish norms for the treatment of prisoners of war and the use of poison and other inhumane weapons. The city-states of Greece, including Athens and Sparta, were so geographically limited that in many ways they depended on each other both economically and for defense against Persian invaders. As a result, these sovereign communities developed a keen awareness of their shared interests, and with this awareness came growth in the scope of the rules governing relations between states. Greek contributions to modern international law include elements of treaty law (methods of negotiation, interpretation, and conditions of termination), principles of international arbitration, the immunity of ambassadors, the right of asylum, and the rights and duties of aliens in foreign states.

Neither the era of Roman hegemony nor the period that followed the empire’s fracture and decline were conducive to developing international law. While it is true that Roman law, particularly Rome’s jus gentium—a theoretically universal law common to all, including non-Romans—would prove to have a significant influence on later international law theories, Roman hegemony left little room for a true system of international law based on the sovereign equality of states. The Holy Roman Empire and the system of feudalism that dominated Europe during the medieval period were likewise not favorable to international law. That changed during the Age of Exploration and the Renaissance. Scholars in England, France, Italy, Germany, and Spain contributed to international legal theory in the sixteenth and seventeenth centuries. One of the most noteworthy contributions was by the young Dutch lawyer Hugo Grotius (de Groot). Many view his De Jure Belli ac Pacis, published in 1625, as the seminal treatise on the early law of nations—what philosopher Jeremy Bentham later called international law.⁹ While the theoretical foundations provided by scholars of this era were important milestones in the development of international law, modern international law is often traced to 1648 and the Peace of Westphalia,¹⁰ which ended Europe’s bloody Thirty Years’ War and marked the rise of secular and semisecular European nation-states or principalities.

By the end of the nineteenth century, the law of nations had expanded even more. International efforts to compile uniform regulations for preventing collisions at sea date back to rules introduced in the 1860s by France, Great Britain, and the United States. Those early rules were modified at a conference of maritime nations in Washington, D.C., in 1889 and were adopted by the nations concerned. The international agreement on 13 October 1884, to adopt the meridian passing through the Observatory of Greenwich, England, as the global reference meridian for longitude and time calculations, resolved the crucial issue of international timekeeping. Before the agreement, there were thousands of time zones based on local solar observations. Today, marine charts display not only locations but also indicate the time zone of that location relative to Greenwich. Other accomplishments during this period include international treaties outlawing the scourge of slavery and slave trading. Concerns over infectious diseases and health led to international sanitation measures. Administrative procedures and agencies were established to facilitate the transmission of mail and telegraph messages throughout the world. The seas of the world were generally free for all to use, and canals connecting the great oceans were opened for international trade. Individuals and their property could move about freely in many foreign lands, and foreign vessels could expect to enjoy most of the same navigation rights as domestically flagged vessels. Extradition agreements ensured that persons who fled a country after committing a crime were returned to face justice.

The scope of international law at the beginning of the twentieth century was indeed broad, and the subjects it covered were matters of mutual convenience. Agreements as to what the law should be in particular cases were relatively easy to reach until two world wars and a devastating and persistent global depression in the first half of the twentieth century exposed the limits of international law in addressing the most consequential questions of international relations. The devastation and suffering of that period shook the confidence of many in the historical approach to international relations and law and persuaded progressive reformers to enhance international law and make it more effective through the creation of international organizations. Although the first attempt, the League of Nations, failed to avert either the Great Depression or World War II, the United Nations and the family of international economic organizations that came out of the 1944 Bretton Woods Conference owe a considerable debt to the league’s pathbreaking role as a global international organization. The United Nations’ role in international relations and international law, including the law of the sea, is now pervasive.

C. THEORIES OF INTERNATIONAL RELATIONS AND INTERNATIONAL LAW

International law is best examined and understood through the lens of international relations theory. Few seagoing professionals would regard international law as an end in itself, nor would most legal theorists. Shortly after the founding of the United Nations post–World War II, the international jurist and law professor Philip Jessup wrote of the relationship between international law and international relations, The function of international law is to provide a legal basis for the orderly management of international relations.¹¹

International relations theory and international law theory have value in proportion to the degree to which they explain events and aid in modeling, shaping, and predicting future actions.¹² Such explanatory theories must be distinguished from normative prescriptions or personal preferences. The test for the explanatory international relations and international law theories described below is the extent to which the theory explains the actual practice of states—at least those states most relevant to the particular inquiry—and therefore aids in shaping and predicting future behavior. Theories are formulated, revised, or discarded when they no longer accurately describe state practice. Thus, some theories that prevailed during the first half of the twentieth century did not survive the Cold War, the short-lived new world order following the dissolution of the Soviet Union, or the more recent era of the war on terrorism and Russia’s 2022 invasion of Ukraine.¹³

1. International Relations Theories

International relations theorists typically characterize the global legal system as anarchic. In choosing that label they are not suggesting that it is necessarily chaotic, but rather that it is a horizontal system, in contrast to a hierarchical one. State sovereignty and equality are the central organizing principles of international relations.¹⁴ There is no higher power to impose order on sovereign states. Judge Max Huber explained in the Island of Palmas arbitration decision:

Sovereignty in the relations between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State. Territorial sovereignty … involves the exclusive right to display the activities of a State. This right has as corollary a duty: the obligation to protect within the territory the rights of other States, in particular their right to integrity and inviolability in peace and in war, together with the rights which each State may claim for its nationals in foreign territory.¹⁵

States undeniably remain the principal actors in the international system. The Charter of the United Nations protects the sovereignty of each state by expressly prohibiting states from using or threatening force against another state’s territorial integrity or political independence.¹⁶ Together with the noninterference norm, which prohibits interference in a state’s internal affairs, this nonaggression norm recognizes and requires respect for the state’s internal sovereignty.¹⁷

Several international relations theories have competed for acceptance over the years. A common classification divides the theoretical approaches into liberalism, idealism, and realism.¹⁸ Another approach to classifying international relations theories distinguishes between interest-based theories and norm-based theories.¹⁹ The norm-based theorists—while not completely dismissing the role of state interests in their relations—posit that international law significantly affects state behavior and that states do adhere to international law most of the time. Adherents to norm-based theories emphasize the influence of principled ideas, such as peace, prosperity, and the inherent rights of the individual. By contrast, interest-based theories generally posit that states can be viewed as unitary, rational actors that strive to further their own interests by employing the instruments of national power (diplomatic, information, military, and economic) to achieve their policy objectives.²⁰ Interest-based theories emphasize the state’s security and support the idea that its best guarantee is superior relative power,²¹ both individually and through either an effective balance of power or a collective defense approach. Adherents to interest-based theories discount, but do not dismiss, the effect of international law in international relations. A state pursuing security and its own economic and political interests might adopt the rhetoric of norms and values but will ultimately act to further its own interests. An interesting variation of the pure interest-based school holds that states do indeed act primarily in pursuit of their national interests, but they do so consistently with their national identity, which reflects values widely held within the state.²² In the United States those values include convictions regarding a constitutionally limited government, universal suffrage, and individual rights. Most Americans consider respect for the rule of law to be a core tenet of their national creed. It is perhaps no accident, therefore, that the nation’s oldest commissioned warship is named the USS Constitution and that newly commissioned officers swear to support and defend the Constitution of the United States against all enemies, foreign and domestic.

Grounded in a rational, utilitarian calculus, interest-based theories have long dominated the actual practice (if not the rhetoric) of international relations at the highest levels of government. Increasingly, however, even realists (and military planners) recognize that both force and legitimacy are essential elements of an effective national strategy. The principles of joint operations in U.S. joint doctrine list the nine traditionally accepted principles of warfare but add three more principles, including the principle of legitimacy,²³ tacitly recognizing that force without legitimacy engenders resentment and resistance, while legitimacy without the backing of a credible force is vulnerable to being overthrown.²⁴

2. International Law Theories

Law school and graduate courses in international law and international relations typically devote considerable attention to the theories of international law.²⁵ The three primary schools of thought in general jurisprudence are natural law, legal positivism, and legal realism.²⁶ International law jurisprudential theory adds international legal process, a specialized application of legal process theory. Another view with roots in the writings of Judge Philip Jessup posits the emergence of a transnational legal process.²⁷ As more fully developed by Yale professor Harold Koh, the concept transcends the traditional international law concepts to embrace a dynamic legal process model that downplays the central role of states in international law and the dichotomy between international law and domestic law (called municipal law by some writers) and between public law and private law.²⁸

Before examining the theoretical aspects of international law, it is helpful to briefly consider why, from a practical viewpoint, states agree to rules of international law and then adhere to them, even when compliance might conflict with the state’s short-term national interests. First, states adopt some international rules to promote uniformity. Uniformity is particularly important regarding international shipping and aviation safety standards and international telecommunications protocols. Second, states may consent to international rules to obtain reciprocity; that is, they might agree to limit their sovereignty in exchange for the promise of similar treatment by the reciprocating states. Examples include reciprocal trade agreements; treaties of friendship, commerce, and navigation; regional port state control agreements; and status of forces agreements.²⁹ Finally, some international goals can be achieved only through concerted action based on enforceable international rules. Examples include protecting the ocean commons from pollution and overfishing and addressing transborder threats, such as climate change, ocean acidification, and ozone depletion.

It is customary in any examination of the jurisprudence of international law to cite the works of early skeptics, such as John Austin,³⁰ who questioned whether international law really is law. The skeptic critique begins with the previously mentioned observation that the global legal system is anarchic because all states enjoy sovereign equality. There is no global sovereign—no global legislature, global executive, or international court that can compel a sovereign state to appear before it unless that state has consented to the court’s jurisdiction.³¹ Given those limiting attributes, international law necessarily operates differently from the domestic law of a sovereign state.

The actual effect of international law on states’ behavior in their international relations is disputed. At one extreme, some international relations theorists suggest that international law is the summum bonum (highest good) of international relations, having a paramount stature and pervasive effect on state behavior. At the opposite end are those, particularly the realists, who discount the role of international law in the conduct of international relations. They believe that state interests can be most effectively achieved through the exercise of mature judgment backed by robust instruments of national power, without the constraint of international rules that might prove inimical to the state’s interest in a given situation.³² Realists assert that because one state can never be certain of another state’s intentions, it would be culpable folly to rely on international law or the concept of collective security to safeguard the state. Some go so far as to label international law epiphenomenal³³—perhaps nothing more than an after-the-fact rationalization by states of their interest-based conduct. The critique of U.S. foreign policy during the post–World War II era by longtime U.S. diplomat George Kennan captures the realist school’s skeptical view of international law: I see the most serious fault of our past policy formulation to lie in something that I might call the legalistic-moralistic approach to international problems…. It is the belief that it should be possible to suppress the chaotic and dangerous aspirations of governments in the international field by the acceptance of some system of legal rules and restraints.³⁴

Not surprisingly, most legal scholars, lawyers, and judges put greater faith in international law’s ability to influence behavior, whether of individuals or states.³⁵ Legal empiricists respond to the skeptics by pointing out that whatever the theoretical limitations of international law, as a practical matter, most states follow most rules of international law most of the time;³⁶ and even when they depart from the rules of international law, they often attempt to excuse their departure with international law explanations. For seagoing officers, the debate is largely academic. Whatever the relative merits of the various theories, no seagoing officer would deny the influence of international law. The seagoing officer feels no less compelled to respect international law rules on state sovereignty and access to ports than to give way to a vessel restricted in its ability to maneuver under the collision prevention regulations. Echoing that pragmatic approach, scholar Hedley Bull concluded that the most compelling reason to classify certain international rules as law is that those most concerned with international relations, both public and private, consider them to be law.³⁷

Over the centuries, a recurring jurisprudential debate among legal scholars has focused on two possible theoretical bases for international law. The natural law theory (lex naturalis) was expounded in the first century BCE by the Roman Marcus Tullius Cicero, who argued, in sharp contrast to the Greek Sophists, that law does not, and cannot, begin with states. Rather, true law is right reason in agreement with nature. Although natural law was often derived from or associated with religious doctrine in its formative years, later proponents of natural law, among them Samuel von Pufendorf and Emmerich de Vattel, sought to ground it in secular principles.

According to natural law theory, law is universal, and we obtain knowledge of it deductively. Because it is universal and eternal, Cicero wrote, there will not be different laws at Rome and at Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and all times, and there will be one master and ruler, that is, God, over us all, for He is the author of this law, its promulgator, and its enforcing judge.³⁸ Natural law theory underpins the heroine’s defiance of the king in the Greek tragedy Antigone and is implicated in just war theories and some arguments for nullification and conscientious objector status. It is often associated with the Wilsonian school of international relations.³⁹ Natural law is also evident in the Declaration of Independence, with its appeal to the Laws of Nature and of Nature’s God. To adherents of the natural law approach, the law is not a mere handmaiden of international relations, nor does it spontaneously grow out of those relations unhinged from morality or principle. Rather, international law has an existence and a force separate from those relations.

The positivist legal theory argues that international law is made by sovereign states, not discovered by a process of deduction. To the positivist, history, and in particular the innumerable religious wars, amply demonstrates the futility and perils of grounding international law on supposed universal moral principles. Positivists also point out that much of international law, including the law of the sea, has no obvious moral dimension. Consider, for example, the rules governing the negotiability of ocean bills of lading or internationally standardized fog signals for vessels. For positivists, the sovereignty of nation-states dictates that international law must be based on the consent of states rather than moral or religious belief.⁴⁰ States may give that consent expressly by ratifying a treaty, or implicitly through state practice coupled with acquiescence in the practice of other states, or both. The positivist theory finds judicial support in the decision by the Permanent Court of International Justice (PCIJ) in the S.S. Lotus case, a dispute arising out of France’s objection to Turkey’s exercise of jurisdiction over a French merchant marine officer involved in his ship’s fatal collision with a Turkish vessel on the high seas. There, the PCIJ explained, International law governs the relations between independent States. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law…. Restrictions upon the independence of States cannot therefore be presumed.⁴¹ What might be characterized as the freedom principle follows from the court’s decision. It posits that, as a corollary of sovereignty, states are presumed to be free under international law to exercise their governmental powers. The International Court of Justice (ICJ) reaffirmed the S.S. Lotus holding in its 2010 advisory opinion on Kosovo’s declaration of independence from the Republic of Serbia.⁴²

In the formative years of the American republic, a debate of sorts over the two international law theories took place between two distinguished justices of the U.S. Supreme Court—Chief Justice John Marshall and Associate Justice Joseph Story—and the subject was slavery. In an 1822 decision on the circuit court, Story relied on natural law theory to conclude that slavery violated the law of nations.⁴³ His reliance on natural law was overruled three years later, however, in the Supreme Court’s Antelope decision, with Marshall writing for the majority. The Antelope was a Spanish-flag vessel transporting nearly three hundred African slaves when it was seized by the Dallas, a cutter from the U.S. Revenue Cutter Service, while on patrol off the coast of Africa. The question before the court was whether the slave trade violated international law, at that time called the law of nations, and therefore justified the boarding. In apparent agreement with the moral basis for Story’s earlier decision, Marshall acknowledged that it will scarcely be denied that slavery is contrary to the law of nature. He held, however, that whatever might be the answer of a moralist to this question, a jurist must search for its legal solution in those principles of action which are sanctioned by the usages. After examining usage (i.e., state practice), Marshall ruled that, unlike piracy, slave trading did not violate the law of nations (at the time, but later changed by treaty) and that the U.S. cutter therefore had no right to search and seize the Spanish-flag Antelope.⁴⁴

Positivism, with its central proposition espousing the primacy of state consent, remains the dominant theory in international tribunals and U.S. courts. It derives from the sovereign equality of states. The 1969 Vienna Convention on the Law of Treaties (VCLT) recognizes that a treaty binds only those states that have consented to be bound. The persistent objector rule in customary international law similarly recognizes the consensual basis of customary international law by exempting the objector from the customary law rule. Nevertheless, natural law theory (and transcendent sectarian law) occasionally creeps back in, particularly with arguments for new peremptory (jus cogens) norms that bind states even without proof of consent, even though the VCLT makes it clear that peremptory norms are based on acceptance by the community of states as a whole. Additionally, some writers argue that the need to address some global issues is so pressing that action cannot rely on the requirement to gain individual states’ consent.⁴⁵

The role and influence of international courts differs in important respects from the role of their national counterparts, which are familiar to most readers (see chapter 15 on the role of international tribunals). Most disputes concerning law of the sea issues that make it to a court end up in one of a nation-state, not an international tribunal. This is in part because only a minority of states have consented in advance to the jurisdiction of the ICJ—among the five permanent members of the UN Security Council, only the United Kingdom has consented—or the International Tribunal for the Law of the Sea (ITLOS). International arbitration further reduces the number of cases that come before international courts. Finally, even when disputes are submitted to an international tribunal, the international legal system generally rejects the common law stare decisis approach, by which past judicial decisions serve as binding precedents in future cases, thus limiting the future effect of decisions by international courts.

D. SUBJECTS AND OBJECTS OF INTERNATIONAL LAW

International law historically distinguished the subjects of international law from its objects. Subjects have rights and obligations directly under international law; they are said to have international legal personality. States are the principal subjects of international law; indeed, states are the principal authors of international law and the only subjects with full international legal personality. Objects are distinguished from subjects in that international law applies to them only indirectly. They do not make international law; rather, international law acts on them. Although the distinction between international law subjects and objects continues to have some explanatory value in understanding the sources and effect of international law, the distinction has eroded in practice as entities and individuals formerly classified as objects have gained some aspects of international legal personality.

1. States

States are the fundamental and indispensable elements of international relations and international law. Indeed, without states—also referred to as nations, nation-states, and countries—there would be no need for international law.⁴⁶ History has demonstrated that states can be transient; city-states and even nation-states merge, former colonies gain independence, republics, like the Soviet Union and Yugoslavia, break up, and self-determination movements and power struggles tear states asunder. The combined effect of these events has been a steady climb in the number of states. In fact, UN membership has grown from an original 51 member states in 1945 to more than 190 today.

International law on states begins with the threshold question regarding the essential elements of statehood: What attributes must a polity have to qualify as a state? Following on that, are Taiwan, Monaco, and the Vatican City states?⁴⁷ How are new states created? Could entrepreneurs establish a new state on an offshore artificial island? What is the legal effect if some states or international organizations recognize a claimant, such as the Palestinian territories or Kosovo, as a state?

A four-part test is commonly applied to assess whether a given entity qualifies as a state. To be considered a state, the entity must have a permanent population, a defined territory, a government, and the capacity to enter into relations with other states.⁴⁸ Some theorists would apply a more demanding standard of effective control to the government element. Others would add a requirement that the putative state have a monopoly on the legitimate use of force within its territory, a condition increasingly relevant in this age of failing and failed states and the proliferation of armed groups.

The international law test for statehood has been largely indifferent as to whether the putative state is secular or theocratic and whether it operates as a liberal democracy, an authoritarian monarchy, or an outright dictatorship. Other states and international organizations, however, increasingly do care. As a result, even if a putative state meets the four-part legal test for statehood, other states might refuse to offer it formal recognition or admit it to international organizations.⁴⁹ Similarly, following a change in an existing state’s government, the new government will not necessarily be recognized by other states, particularly if the new government came to power through extraconstitutional means, thus highlighting the distinction between recognition of a state and recognition of the current government of a state.⁵⁰

States have rights and obligations under international law.⁵¹ They are sovereign within their territory and may extend their jurisdiction to their nationals and to some activities outside their borders. Sovereignty represents the consolidation and concentration of governmental power in a single entity, especially the power to make and enforce laws to protect the state’s borders and its people, always subject to the relevant geographical limits.⁵² State sovereignty is protected by nonintervention and nonaggression norms.⁵³

The obligations of states are too often overlooked or ignored. A state is, of course, accountable to its nationals and owes its primary obligation to them, but it also has obligations to other states. Some of those obligations are set out in the UN Charter; others are prescribed by the treaties to which the state consents or in customary law, including the law of the sea. A state that breaches its obligation to other states bears international responsibility and may be required to make reparation or be subject to sanctions.

2. International Organizations

Sovereign states acting individually could conceivably achieve their desired level of domestic prosperity and order within their borders, but threats to national security often come from outside. No single state can effectively protect the global trade, transportation, and communications systems. The international order needed for national security and the global trade, transportation, and communications systems requires international law and international organizations. To provide a ready forum for consultation and cooperation, states have established several international intergovernmental organizations.⁵⁴ From an international law perspective, international organizations (IOs), including global IOs such as the United Nations, must be distinguished from world government.⁵⁵ World government advocates aspire to abolish individual state sovereignty and replace it with a single legislative, executive, and judicial authority whose powers would be paramount—a single superstate. With world government, there would be no need for international law.

Special-purpose IOs can be traced to the Universal Postal Union, established in 1874, and the International Telegraph (now Telecommunications) Union, founded in 1875. It is now well established that some IOs possess elements of international legal personality.⁵⁶ That development was recognized by the ICJ in Reparations for Injuries, a case involving a claim by the United Nations following the 1948 assassination of one of its diplomats.⁵⁷ The ICJ—in concluding in its advisory opinion that the United Nations had standing to assert a claim in its own capacity, as an international organization, even though the UN Charter itself conferred no such power—explained that an entity such as the United Nations might be a subject of international law even though it lacks the full measure of legal personality enjoyed by states. The court concluded, The subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights, and their nature depends upon the needs of the community. Throughout its history, the development of international law has been influenced by the requirements of international life, and the progressive increase in the collective activities of States has already given rise to action upon the international plane by certain entities which are not States.⁵⁸ Accordingly, IOs may assert claims under international law in their own name. Additionally, they may enter into treaties with states or other IOs and request advisory opinions from international tribunals. IOs and their member-states’ delegations and secretariat staffs are extended a measure of immunity equivalent to the diplomats of states.⁵⁹ IOs, like any organization, have their own rules binding on members. Those organizational norms, while not necessarily a source of international law, influence the behavior of states.

International organizations can be global or regional, and their competency can be general or specific, sometimes called functional. The United Nations is an example of an IO whose competency is global and general, while NATO and the Arctic Council are examples of regional organizations with specific, functional mandates. The distinction has more than theoretical importance. In approaching IOs whose charge is global and general, some theorists and jurists have argued that a liberal interpretation should be applied in construing the constitutive treaty that established the organization. That is, rather than strictly limiting the IO to the powers expressly enumerated in the treaty that established the organization, that constitutive treaty should be read to include by implication those powers necessary and proper for carrying out the enumerated powers. In the ICJ’s decision in the Reparation for Injuries advisory opinion, Judge Green Hackworth (of the United States) sharply criticized that argument, explaining that the United Nations is an organization of delegated and enumerated powers … [and that] Powers not expressed cannot be freely implied.⁶⁰ Hackworth’s critique notes that, unlike the U.S. Constitution, the UN Charter does not include a necessary and proper clause.⁶¹

The typical structure of an IO consists of an assembly comprising all member states, a smaller council elected by the members, one or more specialized committees, and perhaps a secretariat.⁶² Later chapters will introduce the concept of the competent international organization (CIO) under international law. International maritime law is often developed under the auspices of a CIO, such as the International Maritime Organization (IMO) or the International Labour Organization (ILO). Chapter 2 describes CIOs that play such a role in law of the sea issues. In response to the outbreak of the novel coronavirus (COVID-19) pandemic in 2019, international organizations took on added importance, as the IMO and ILO assumed the role of key diplomatic interventionists on behalf of seafarers affected by national responses to the pandemic.⁶³

The United Nations was established in 1945, with headquarters slated for New York City overlooking the East River. Selected articles of the UN Charter are reproduced in appendix B. The organization comprises six principal organs: the General Assembly, Secretariat, Security Council, Economic and Social Council, Trusteeship Council (now largely inactive), and International Court of Justice, the principal judicial organ of the United Nations, in The Hague.⁶⁴ UN membership is open to all peace-loving states, subject to voting rules set out in the organization’s charter. The General Assembly, consisting of all member states, is divided into six main committees,⁶⁵ along with several other standing and ad hoc committees. The assembly meets every autumn at UN headquarters in New York. All states have equal voting rights on assembly resolutions,⁶⁶ but funding responsibilities follow the common but differentiated responsibility rule, under which the United States funds nearly 20 percent of the UN budget. A simple majority vote is sufficient on most matters, giving a vote by the island state of Nauru, with a population of some ten thousand people, the same weight as a vote by China or India. Important matters must be approved by two-thirds of the assembly.⁶⁷

Most governments that participated in the drafting of the UN Charter opposed conferring on the organization legislative power to enact binding rules of international law. As a corollary, they rejected proposals to confer on the General Assembly the power to impose certain general conventions on states