THE GULF OF SIRTE INCIDENT (UNITED STATES v. LIBYA) AND INTERNATIONAL LAW

in The Italian Yearbook of International Law Online
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THE GULF OF SIRTE INCIDENT (UNITED STATES v. LIBYA) AND INTERNATIONAL LAW

in The Italian Yearbook of International Law Online

References

  • 1 See RousSEAU, "Cronique des faits internationaux", 78 RGDIP (1974), p. 1177 if. 2 See New York Times of 21 August 1981, especially the article "Over the Gulf of Sidra", and the Corriere della Sera of 20 and 21 August, p. i. See also ADAM, "L'incidente del golfo della Sirte", 64 Rivista (1981), p. 1025 ff.

  • 3 These threats caused a strong reaction on the part of Italy. In a note issued on 2 September 1981 the Government declared that the Libyan threats were grave, totally inadmissible and inconsistent with the policy of good neighborhood persued by Italy in the Mediterranean, adding that Italy would oppose any unilatetal attempt to alter the political and military balance in the area. See 45 Rellnt (1981), No. 37, p. 785 ff. For further comments on Qaddafi's speech and Italian reactions, sea ibidem, p. 773 ff. The Italian note was accompained by a request for explanation from the Libyan ambassador in Rome as well as by statements on the part of the Italian Defence Minister, Lagorio, concerning the actual limits of implementation of Qaddafi's threats. The unusually strong Italian reaction was in turn followed by some Libyan diplomatic steps intended to water down the seriousness of Qaddafi's threats and to clarify that Tripoli simply wanted to assert its right to take defen- sive action in the event that United States or NATO bases in the Mediterranean were used against Libya. See RelInt, cit., p. 77q. f. 4 See Keesing's, 13 November 1981, p. 3II82 f., and Nations Unies, Revue de la semaine, 1981, n. 33, p. 2 f.

  • 5 For an account of Libyan expropriations of American interests and of litigations following thereupon, see Vorr MEHREN and KOURIDES, International Arbitrations between States and Foreign Private Parties: the Libyan Nationalizations Cases, 75 AJIL (1981), p. ¢76 ff. Official notes of protest from the US Government are quoted at p. 486 f. 6 On the circumstances leading to the expulsion of Libyan diplomats see 75 AJIL (1981), p. 937 and 84 RGDIP (1980), p. 1117 f., and 85 (1981), p.878 f. 7 For an account and analysis of the Gulf of Tonkin incident and of other instances of State practice in this field, see 0' CONNELL, The Influence of Law on Sea Power, Manchester, In75, 97 fuzz 103 ff., 124ff. 8 On the legislative history and practical impact of this resolution, see Fxnrrex and WEISBAND, Foreign Policy by Congress, New York - Oxford, 1979, pp. 68-82.

  • 9 The note is reprinted in Digest of United States Practice in International Law, 1974, p. 293 ff. It appears that the Italian Government also contested the legality of the closing of the Sirte in a note delivered to the Libyan charge d'affaires in Rome. See the written reply of Mr. Bensi, Under-Secretary for Foreign Affairs, to a question posed by Mr. Birindelli, M. P., reprinted in 2 Yearbook (1976), p. 422 f. 10 ICJReports, 1951, p. 116 and 132. 11 This Article reads as follows:

  • i. This Article relates only to bays the coasts of which belong to a single State. 2. For the purposes of these Articles a bay is a well-marked indentation whose pene- tration is in such proportion to the width of its mouth as to contain landlocked waters and constitute more than a mere curvature of the coast. An indentation shall not, however, be regarded as a bay unless its area is as large as, or larger than, that of the semi-circle whose diameter is a line drawn across the mouth of that indentation. 3. For the purpose of measurement, the area of an indentation is that lying between the low-water mark around the shore of the indentation and a line joining the low-water marks of its natural entrance points. Where, because of the presence of islands, an inden- tation has more than one mouth, the semi-circle shall be drawn on a line as long as the sum total of the lengths of the lines across the different mouths. Islands within an indentation shall be included as if they were part of the water areas of the indentation. 4. If the distance between the low-water marks of the natural entrance points of a bay does not exceed twenty-four miles, a closing line may be drawn between these two low-water marks, and the waters enclosed thereby shall be considered as internal waters. 5. Where the distance between the low-water marks of the natural entrance points of a bay exceeds twenty-four miles, a straight baseline of twenty-four miles shall be drawn within the bay in such a manner as to enclose the maximum area of water that is possible with a line of that length. 6. The foregoing provisions shall not apply to so-called "historic" bays, or in any case where the straight baseline system provided for in Art. 4 is applied. 12 See Traitér multilateraux pour lesquels le Secretaire General exerce les fonctions de Depositaire, New York, 1980, p. 565 ff.

  • 13 This presupposes that we do not attach the prima facie value of generally applicable rules to codification treaties such as the Geneva Conventions, but we rather treat them as normal conventions valid only for the contracting parties, unless it is otherwise shown, that is, by reference to State practice, that they coincide with customary rules. This approach is con- sistent with the decision of the ICJ in the North Sea Continental Shelf case (ICJReports, 1960, p. 3 ff.) regarding Art. 6 of the Geneva Convention on the continental shelf. In legal literature this approach is followed by most authors. See, for all, CONFORTI, Lezioni di diritto internazionale, 2nd ed., Napoli, 1982, p. 39 ff. and the literature therein contained. Contra, SCHWARZENBERGER, The Inductive approach to Internatiorzal Law, London, 1965, p. 34 ff. and BAxTER, "Treaties on Custom", 129 Hague Recueil (1970), I, p. 36 ff. D'AMATO, 'Treaties as a Source of General Rules of International Law", Harvard International Law Club Bulletin (1962), No. 3, p. 27 ff.; IDEM, "Manifest Intent and the Generation by Treaty of Customary Rules of International Law", 64 AJIL (1970), p. 892 ff. 14 See supra, note 9. 15 This doctrine involves that "a bay or gulf can only be territorial if it is not so large that when compared with the land surrounding it, it cannot be considered to be a part of it". GROTIUS, De Jure Belli ac Pacis, II, Chap. m, Sect. 8. 16 See VATTEL, Le droit des gens, 1754, I, Chap. 23 For early critique of this view, see FAUCHILLE, Traite de droit international public, Paris, 1925, I, Part 2, p. 372. 17 This criterion was adopted in an early American case, Commonwealtb v. Peters, 12 Met. 387, of 1847 in which it was held that the waters of a bay were territorial because they were "not so wide but that persons and objects on the other side can be discerned by the naked eye by persons on the opposite side". 18 The six-mile rule, that is, twice the width of the territorial sea generally accepted at the time, is upheld, among others, by FiORE, Il diritto internazionale codifzcato, Torino, 1915, Sect. 275; LAUTERPACHT, Oppenheim's International Law, 8th ed., London, 1961, I, p. 505; COLOMBOS, The International Law of the Sea, 4th ed. repr., London, 1961, p. 152; JESSUP, The Law of Territorial Waters and Maritime Jurisdiction, New York, 1927, p. 358. For the ten-mile rule, Huxs'r, "The Territoriality of Bays", 3 BYIL (1922-23), p. 42 ff., as well as the literature referred to in BoucHEZ, The Regime of Bays in International Law, Leyden, 1964, p. 106, and S'TROHL, 1 he International Law of Bays, The Hague, 1963, Chapters IV and V. Some authors exclude the existence of a general rule concerning the distance of closing lines in bays; among them: GIULIANO, I diritti e gli obblighi degli Stati, Padova, 1956, p. 25Jr; Schwarzenberger, International Law, 3rd ed., London, 1957, I, p. 328; Suy, "Les golfes et les baies en droit international public", Friedens-\X�arte, 1957, p. i f.;

  • QUADRI, Diritto internazionale pubblico, 5th ed., Napoli, 1968, p. 681 f. For a precedent supporting the view of these authors, see the judgment of the Permanent Curt of arbitration of the September 1910 in the North Alantic Fisheries case (ScoTT, Hague Court Reports, 1916. p. 141 ff.) finding that no obligatory rule of international Law existed on the matter. 19 The report is published as an annex to Addendunt to the Second Report on the Regime of the Territorial Sea by FRANROIS, Special Rapporteur, 18 May 1953, YILC (1953)- II, p. 75 ff. 20 Cf. YILC (i956), II, p. 40, 43, 52, 58 f. 21 Ibidem, p. 80 f1. and 9i, 94.

  • 22 See Traitgs multilateraux, cit., p. 567 ft. � The letter is printed in WHITEMAN, op. cit., p. 230 f. 24 See, particularly, United States v. Florida concerning the delimitation of "Florida Bay" which according to the Special Report could not be regarded as claimed by Florida, as a juridical bay in its entirety, but could be qualified as such only with respect to its eastern portion that is "...east of a closing line running southwesterly from East Cape of Cape Sable to Knight Key in the Florida Keys, at a distance of approximately 24 geographical miles". Reported in Digest of United States Practice, cit., p. 286 ff. For other United States precedents on bays, see United States v. California, 381 US 139 (1964) and United States v. Louisiana, 394 US 11 (ig6g). 25 The text is reproduced in 19 ILM (1980), p. 1129 ff., at p. 1149.

  • 26 Para. i of Art. 4 reads: "In localities where the coastline is deeply intended and cut into, or if there is a fringe of islands along the coast in its immediate vicinity, the method of straight baselines joining appropriate points may be employed...". z7 Cf. Art. 4 para. 2.

  • � Cf. Art. 4 parma. 4. 29 Art. 4 para. 2. Reference to economic interests as one of the relevant factors justifying the employment of straight baselines was contained also in the 1951 ICJ decision on the Anglo-Norwegian Fisheries. Here the Court, in discussing the traditional fishing rights of the inhabitants of Norway over the contested areas, said that "such rights, founded on the vital needs of the population and attested by very ancient and peaceful usage, may legitimately be taken into account in drawing a (base) line...". ICJ Reports, 1951, p. 116 ff., at p. i¢z. 3° For State practice concerning liberal interpretation of the straight baseline method, see: WHITEMAN, Digest, cit., p. 137ff. and PEARCY, "Geographical Aspects of the Law of the Sea", Annals of the Association of American Geographers (1959), p. i ff. and 11. With respect to this practice the representative of Malta, Pardo, in the 2nd Stlb-Committee of the Sea-Bed Committee stated that in 1973 it "... had resulted in probably over one million square kilometers of what had been territorial waters and high seas in 1958 being claimed as internal waters". The same representative referred in his speech to the possibility that

  • in the near future further enclosure of the sea areas by means of baselines could bring the area appropriated by this means to the figure of 30-35% of ocean space. See Doc. A/AC. 138/SC. II/SR. 7�, p. 8 f. 31 On this decree, see infra, para. 4 and note 41. 3z See Art. 14 of the Geneva Convention, as well as Art 19 para. 2 of the Draft Convention which enumerated the following activities as incompatible with the innocent character of the passage: "a) Any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal State...; b) Any exercice or practice with weapons of any kind; c) Any act aimed at collecting information to the prejudice of the defence or security of the coastal State.... e) The launching, loading or taking on board of any aircraft; f ) The launching, loading or taking on board of any military device...

  • 33 Cf. JESSUP, op. cit., p. 383; GIDEL, Le droit international public de la mer, Paris, 1932-34, III, p. 635; BouRQUIN, "Les baies historiques", in Melanges Souser-Hall, Paris, 1952, p. 43; BOUCHEZ, op. cit., p. 237 ff. with ample reference to literature and State practice. See also FLORIO, Baie storiche, NssDI, II, p. 200 ff.; LAURIA, 11 regime giuridico delle baie e dei golli, Napoli, 1970, p. i35 ff. � 422 US 184, 1975. The Supreme Court relied in this case on the criteria for determi- nation of the historical character of a bay which were stated in a letter sent by the legal advisor of the Department of State Maw to the Assistant Attorney Johnson and defined as follows: "(1) open, notorious and effective exercise of authority over the area by the State claiming the right; (2) continuous exercise of authority; (3) acquiescence of foreign nations in the exercise of authority". The Court held with respect to Nos. (i) and (3) that enforcement of fishing and wildlife regulation did not constitute sufficient display of authority for the purpose of a historic title; that acquiescence of foreign nations does not mean simply the absence of protest but required evidence that foreign nations knew or reasonably should have known that the claim over the bay was being asserted. 3s See supra, note 24. � Cfr. Art. 2 of the Colombian draft articles on the territorial sea, Third United Nations Conference on the Law of the Sea, Of ficial Records, New York, 1977, V, p. 202.

  • 37 For the Italian reactions see note 9. � Rectius larger than would be allowed under the 24-mine and semicircle rules. � See, for instance, for this view, GARCIA AMADOR, YILC (1955), I, p. am f. and Blum, Historic Titles in International Law, The Hague, 1965, p. 179 and 241 ff.

  • 40 For a comprehensive survey of State claims in this case, see Boucl-IEZ, op. cit., p. 215 ff., as well as Secretary General of the United Nations: Juridical Regime of Historic Waters, including Historic Bays, YILC (1962), II, p. 1 ff.; NORDQUIST, LAY and SIMMONS, New Directions in the Law of the Sea, London, 1980, VII and VIII. 41 Decree of the President of the Republic No. 816 of 26 April i977, published in GU No 305 of 9 November 1977. For a comment, see ADAM, "Un nuovo prowedimento in materia di linee di base nel mare territoriale italiano", 61 Rivista (1978), p. 470, espec. at p. 477 ff.; FONTANA, "Le linee di base del mare territoriale italiano", 1 II Revista marittima (i978), p. 77 ff.; FusILLO, in 3 Yearbook (1977), p. 570 ff. 42 It is hardly relevant to consider, as one commentator did (FONTANA, op. cit., p. 78 ff.), that in the XVI and XVII centuries the Italian populations settled around the gulf of Taranto defended those shores against Turkish invasions and attacks. This argument would apply to so many other stretches of the Italian coastline that its acceptance would lead to manifestly absurd consequences. 43 This bay was claimed as national waters by decision of the Council of Ministers of the Soviet Union of 20 July 1957. The United States protested on 12 August 1957 and again on 8 August 1958. Also France, Sweden, the United Kingdom, Holland, Germany and Japan protested. See ROUSSEAU, "Notes et commentaires. Extension des eaux territoriales sovietiques dans la baie de `'ladivostock", 62 RGDIP (I958), p. 63. See also BUTLER, The Soviet Union and the Law of the Sea, Baltimore, 1971, p. 108 ff. The Soviet Union replied on 7 January 1958 to the United States protest contesting the arguments and rejecting its conclusions; �i-IITLMAI�', op. cit., IV, p. 255 f.

  • 44 R.S.C. 1970 (ist Supp.), C. 2. For comments PHARAND, The Law of the Sea of the Arctic with special reference to Canada, Ottawa, 1973. 45 Cf. Art. 294 concerning particularly the admissibility of a pollution prevention zone in ice-covered areas. For the protest regarding the 1970 Canadian enactment, see CASTEL, International Law Chiefly as Interpreter and Applied in Canada, 3rd ed., Toronto, 1976, p. 801 ff. 46 ICJReports, 1974.

  • 47 This is a specific application of CONFORTI'S theory of reciprocity as one of the possible forms of peacefull self-defense ("forme non violente, o meglio non belliche, di autotutela"): see CONFORTI, Lezioni, cit., p. 270 f. and his express reference to reciprbcity as the governing rule in the case of straight baselines for the territorial sea or of closing lines for bays which do not conform to the criteria and standards of international law. 48 See BouCHEZ, op. cit., p. 221 f. 49 See supra, note 34.

  • 50 In the case of the closing of the gulf of Aqaba in 1967 there were only verbal reactions by the United States President L. Johnson (see LATIF ZEIDAN, in 35 REgDI (1979)), p. 2 ff., who maintains that this gulf has constitued closed Arab waters since immemorial time). Similarly in 1958 the United States chose to follow a prudent line in asserting transit rights through Indonesian straits. The transit was effected through Lombok strait for which Indonesia appeared to feel a lesser threat to its claimed territorial sovereignty. The same attitude was shown by the British Royal Navy in 1964 when it carefully avoided the Sunda strait due to repeated proclamations by the Indonesian Government that such transit would have been considered a threat to the territorial integrity of Indonesia. For these and other cases on the subject, see 0' CONNELL, op. cit., p. 107 ff. sl The Corfu Channel Case (Merits), United Kingdom v. Albania, ICJReports, i9.I9. It is to be observed, however, that while the Court found Albania responsible for the failure to take appropriate action to prevent to explosion of mines, by no means did it condone the act of self-help carried out by the United Kingdom. The Court affirmed in this regard: "Between independent States, respect for territorial sovereignty is an essential foundation of international relations. The Court recognizes that the Albanian Government's complete failure to carry out its duties after the explosion and the dilatory nature of its diplomatic notes are extenuating circumstances for the action of the United Kingdom Go- vernment. But to ensure respect for international law, of which it is the organ, the Court must declare that the action of the British navy constituted a violation of Albanian sove- reignty". With respect to the issue of innocent passage, the Court stated that: "... in principle international law does not allow a State to assemble a large number of warships in the territorial waters of another State and to carry out minesweeping in those waters". Ibidem, p. 33 ff. For critical comments on this judgment, FITZMAURICE, "The Law and Procedure of the International Court of Justice: General Principles and Substantive Law", 27 BYIL (1950), p. 3of. 52 The "tuna war" has involved several incidents in which United States fishing vessels have suffered coercive measures and fines by Latin American countries (Peru, Ecuador, Colombia, Chile) claiming a 200-mile exclusive fishing control zone in the Pacific. The United States has pursued a policy of protesting and of indemnifying national vessels in case of fines, reserving for itself the right to claim back the relative sums at inter-governmental level.

  • See WIEGAND, "Seizure of United States Fishing Vessels: the Status of the Wet War", San Diego Law Review (1969), p. 428ff. This dispute would logically appear to be bound to come to an end because of the assertion on the part of the United States of a zoo-mile fishing zone by the 1976 Fishery Conservation and Management Act (16 USCA Sect. 1801) which allows foreign fishing on the basis of reciprocity. 53 For examples of incidents which occured with Libya, see below note 61. With Tunisia, incidents involving use of force against Italian fishing vessels have increased in number after the expiration in 1979 of the Italo-Tunisian agreement on fisheries. For an example of such incidents see the article "Motopeschereccio italiano sequestrato dai tunisini nel canale di Sicilia davanti ad una nave da guerra", in Corriere della Sera, cf. 20 November 1981. For the treaty relations on the matter see ScovAZZi, "La pesca nelle acque comprese tra Italia e Tunisia", 78 Rivista (1975), p. 731 ff., and, by the same author, "L'accordo di pesca italo-tunisino del 19 giugno 1976", ibidem (1976), p. 761 if. 54 Cf. the letters sent by Libya and the United States to the President of the Security Council in Nations Unies, Revue de la Semaine, cit., and the article by HoLT, former chief of staff of the US Senate Foreign Relations Committee, in the Christian Science Monitor of 2 September 1981, with the title "The Libyan Incident: More than Meets the Eye?". It is unfortunate that reports over the incident so often confused such different notions as breadth of the territorial sea, 200-mile economic zone and straight-baseline method. This confusion, which appeared in the press (see for instance Corriere della Sera of 20 August 1981, p. i) and also in some United States statements, caused clarifications on the part of Tripoli to the effect of recalling that the Libyan territorial sea is 12 miles and that only in the Gulf of Sirte such limit is pushed outward by effect of the 1973 drawing of the closing line. See 45 RelInt, cit., p. 772. 55 The presence of submarines in the vicinity of the Sixth Fleet is mentioned in the Pentagon statement issued after the incident. Corriere della Sera of 21 August 1981, p. i.

  • 56 For a discussion of what constitutes threat to use force see Secretary General of the United Nations, Report on the question of defining aggression, UN Doc. A/2211, p. 52, as well as the work of the ILC concluding, in the course of the preparation of a Draft Code of Offences against the Peace and Security of mankind, that the threat of force is an offence. A/CN. 4/SR. 109, para. io6. 57 Declaration of the President of the United States J. F. Kennedy of 22 October 1962, reprinted in WHITEMAN, op. cit., IV, p. 523 f.

  • 58 See supra, notes 50 and 52. 59 The United States note of protest reads as follows: "The United States Government protests to the Government of Libya the unprovoked attack against American naval aircraft

  • operating in international airspace approximately 60 miles from the coast of Libya... The American aircraft were participating in a routine naval exercise by United States Navy forces in international waters. In accordance with standard international practice, this exercise had been announced on 12 and 14 August through notices to airmen and mariners. Prior notification of air operations within the Tripoli FIR (Flight Information Region) had also been given. In ac- cordance with these notifications the exercises which began on 18 August will conclude at 17.00 GMT of 19 August. The Government of the United States views this unprovoked attack with grave concern. Any future attack against the United States forces operating in international waters and airspace will also be resisted with force if necessary" Reported in Keesing's, 13 November 1981, p. 31181. Libya rejected the American protest immediately. 60 See Keesing's, cit., p. 31182.

  • 61 The incidents include the shooting on the part of Libyan aircraft at the Italian boat Borghea at about 40 miles from the Libyan coast on 27 March 1973. Later in the same year the Italian corvette Di Cristofaro, while engaged in a surveillance mission near a fleet of fishing boats, was attacked by Libyan Mirages at a distance of 33 miles from the coast. The Libyan Prime Minister Jalloud presented his apologies to the Italian ambassador in Tripoli who accepted them. RousSFAU, "Chronique des faits internationaux", cit., p. 1175 t- 62 Particularly principles (a) and (b). The text of the Declaration is reprinted in UNJurY, 1970, p. 105 ff. � See cases referred to supra in notes 51 and 52 as well as the I'm Alone arbitration (1933-35), RIAA, III, 1609, and the decision of the Anglo-Danish Commission in the Red Crusader case. The latter established an absolute prohibition with regard to firing against foreign vessels with the intention to sink them even if this occurs in the course of a law enforcement operation in waters subject to national jurisdiction. Cfr. 35 IntLR. For com- ments on these cases: FEnrxicx, "Legal Limits on the Use of Force by Canadian Warships Engaged in Law Enforcement", 16 CanYIL (1980), p. II3 ff. and 131 fl.

  • 64 Such disparity between the Su-22 s and the F-14 s has been universally acknowledged in the comments on the incident. The F 14 is described as the most advanced combat aircraft in the world, with a speed twice that of sound and a capacity for shooting six of its 14 missiles at the same time while keeping track of 24 targets simultaneously. 65 Cfr. Sunday T'imes of London of 23 August as well as the article "Over the Gulf of Sidra", cit.

  • � We refer to the submission by Libya and Tunisia of their dispute over the delimi- tation of their continental shelf to the International Court of Justice and to the prospect of submission of a similar dispute between Libya and Malta to the same Court. The United States on its part signed an agreement with Canada on 29 March 1979 on the basis of which the question of delimiting the lateral boundaries of the gulf of Maine was referred to the International Court of Justice. Although at the time of the writing of this paper dlis agreement was not implemented, it is quite likely that the question will be referred to a chamber of the Court without further delay.

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