Military-Legal Considerations in the Extension of the Territorial Sea

• Author: Lieutenant Commander Keith D. Lawrence
• Pages: 02

I. INTPIODUCTION A. GESERAL ZSTRODL'CTIOS

In 1960, when the nuclear-powered submarine Triton made Its submerged circumnavigation of the globe, it passed, submerged, through the Surigao Strait north of Xndanao in the Philippines, across the Mindanao Sea, through the Celebea Sea to the llakassar Strait between the ialands of Borneo and Celebes, and an south of Java. into the Indian Ocean. Had the unilateral claims of the Philippines' and Indonesia? to the waters within their respective archipelagos as internal wateis, the Philippine claim

*This article w e adapted from a thesis presented to The Judge Advocate

Generah School, E.S. Army, Charlattesrliie, Vlrglma. ivh:le the author was a member of the Tivelith Career Course. The opinions and eonclui~oni pre-sented herem are those of the author and do not mcessanl? represent the >iess of The Judge Advocate General's School or any other ga\.ernmen:al agene,.

*WSK, Assistant Legal Oseer iar Reimi, Staff, Commander Seriice Farce, C. S. Atlantic Fleer, B.A., 1051, K~llamette Emverslr); LL R , 1956.

.erntg. Member of the Bar of the State of Oregon. and of s Supreme Court, the United States Court of .h.ppeais. Sinth Circuit, the Emted Stares Diatrict Court, Dlitnct oi Hawan and the Unmd states Curtoms court.

L The Phiiipp.ne Yinistry of Fareign Affairs notified the United h-atlans Secretarial on Dec 12, 1955, that "all waters around, between and eonneetmg the different islands helongmg to the Phhppine Archipelago irrespective of

(19561.

On Feb 18, 1960, Indonesia pvblirhed It8 Regulatm in Lien of Act No. 4.

Clause 2 of Art. 1 claims as inland sea8 all those areas of the sea withm straight baselines "eonneetmg the outermost pants an the low eater mark of the outermost inlands or part of nueh lalands eompnsing Indonesian territory?' Addendun, to Supp. to Laws and Rsgiilotrmii on the Regime of the Territorial Sen, CN. DOC. KO.

A,CONF.19'5Addl, at 3 4 (1060).

In a nore rerbale dated Jan. 20, 1958, from the permanent mission of the Philippines to the Cmted Nanans, 2 YB.

IRT'L L.

Cahrhr. 69-70 (AICN.4i99) (19561, the Philippine representatm claimed 8s territorial sea ail of the ares designated by the Treaty of Paris of Dee. 10, 1898. This area forma a box of high sea around the islands, the boundary of which extends almost to Taiwan on the north and is as far as 300 mdei from Phihppine land in some sections.

*oo 880SB 47

of territorial iraters ere" beyond twlre miles: and Indonesia's claim to a territorial sea of ti

This IT an exanvie of only one of the numerous adverse effects that an inreriiaiionallj- recognized extension of territorial seas would impose. Arthur Dean. the chaxman of the Unlted States delegations at both the 195s and rhe 1960 Genera conferences an the law of the sea. has stated thai:

The desile of the Vmted States to m-alntsin B ielalirelg narrow term tarial sea and, more particularly to prevent any axtenmon to 12 m h

ieeognized .n .nterratmnal law but also on eomp commercial canrlderat.ani ''

The United States, of course, 16 b)- no means the only beneficiary of a nanow territorial sea. As two authorities have phrased it. the letention of narrow territorial sea limits is in the public interest of the "is-hale of mankind." It results in a "great net adrantage in community values." 10

It will be the purpose of this study to investigate some of the military considerations involved in an extension of the territorial

4 The Crlted Sra:es reiogmzes nelther the Indonesian nor the Philippine rial sea greater than three miles from the low water line. Genera Cnnfeirncr 07% the Law of the Sea TLe Fzg6t far 118, 54 Au. J. Irr'~ L. 761, at 566 (1960).I~IERVATIO\AL LAW 461 (8th ed.. Lautemaeht ed 19511.

baaed not merely on *he fact that the 3-mlle

6 Camenfm on the Territorial Sea and the Cantimoue Zone, .4pril 12,1961, art. 5, U.N.

Doc. Xo. A/CONF.lS/L.bZ (1968). Thls convention entered info farce on September 10, 1964, and had been ranfled by 23 ataten w of F'ebruar) 1965.

7 For an example aee Indanemn Regulatlan in Lieu of Act No. 4, art. 3, Supra note 2

DRLFT COX~ESTIOX ART. 12 HAWE CODZ~CATIOK

Caxwmn-CE 1830 (League of Xaf~on8 P i . Fo. C '1930 Y. 8); Convention on the Ter&ialSea and the Contlguoua Zone, art. 14 (61, mpra note 6.gDean, Fieidom of fbe Seas, 37 FOREIGN AFFAIRS 63, 89 (1966). lyICDOUDAL & BlnKE, THE PUBLIC ORDER OD TXE OCElN8 51-56 (1862).

TERRITORIAL SEA seas of the world from a legal viewpoint and, in so doing, to stress the necessity for considering the military implications thereof whenever policy regarding international agreements in this area is formulated.

The freedom now enjoyed by citizens of the United States and other nations of the free irorld can moat easily be lost by indifference to the military necessities of the nation. Specifically, what good, in the protection of the free world. is a strong Navy if, out of political expediency, its hands should be tied by agree-ments limiting its area of operation to such an extent that it can no longer act effectively?

The question 1s not aakea to belittle the beleagured politicians. It 1s raised simply to express the belief that It is not only proper but imperative that international policy makers. bath military and ci~-ilian, consider the adrerie effects which the extension of terntorial ~eas nould hare on the capability of their nation's armed forces to perform successfully their miwon of preserving freedom as a 'ray of life. Xr. Dean supplied emphasis for this point when, shortly after the 1958 Geneva Conference, he wrote that:

For navrgational purpo~ei . . [the extension of the terntonal seal uauid change a large Pacific area into a %enes of unconnected "laker" of high deas. Surface uardhipa and tiansports might operate ~n the Straits eanneeting the mernational bodies ai water. buc thir right vould not. I" the absence of B treaty, extend co an aircraft's nght to fly over them or to a rabmarme's r.ghr to opelare vnder the aurfaee of them I1

B. IXDOYESIAS EXAMPLES

In the foilowing discussion of these problems, a large number of examples will be taken from the conditions as they exist in Indonesia. This has been done intentionally to strers the magnitude of the combined effects in any one part of the world.

For the past several years, Indonesian policies and pronauncements have been of prime concern to United States diplomats working on Southeast Asian problems. Since December 13, 1967, Indonesia has unilaterally claimed not only a twelve-mile breadth far its territorial sea. but that this distance is measured seaward not from its coasts but from straight base lmes connecting spec- :> Dean, eupm note 9. at 90. I r Dean, of course, did not limlt the effect8 of an ertenrion of the territorial seas to the Pacific area.

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29 MILITARY LAW REVIEWified protruding points of the various islands in its archipelago.12 R'hen one considers that Indonesia is the world's largest archipelago,'* consisting af approximately 13,000 islands': spread across the waters for more than 1,100 miles from north to south and over 2,800 miles east to west, encompassing roughly 2,600,000 square miles of which only about 575,000 are land. the geographical magnitude of Its claim to territorial and inland waters becomes apparent. Its political-mhtary magmtude ls equally apparent from its position, both peograyhic and political. in Southeast .Xsia. It is here that many historic and important sea and air lanes run through and over the oceans and stralts which Indonesia now claims to be internal and terntorlal. Inasmuch as an extension of the territorial seas to tvell-e miles would make all of the passages through the Indonesian islands internal or territorial waters. recognition of and obedience to Indonesia's claim mould effectivel) close tie majoy gatenays to the Indian Ocean.

C. EXCLVSIOY OF FISHERIES PROELEMS

Indonesia. however. has not furnished an example of one of the problems that has beset conferences on the extension of terntonal seas: the problem of fishing nphts. That this has been a groblem in discussions in this area mdicates a confusion with regaid to the concept of territorial waters. This confusion mar best be classified as a failure to distinguish between a coastal state's national boundary designation an the seaward edge of the terntonal 368 and the r a i m ~ partial julladlctional nghtr which It may exercise in limited areas of the high seas.

In conformit>- to the doctrine of freedom of the seas, there has

16 A unilateral extension doer not I" ltielf bmd ather nations. In the AnglaSorwegian Fisheries Case [196l] I C.J. Rep. 132. the court summarized the rule by saying. "The delimitation of ies areas has always an international arpeet, it eannat be dependent merely upon the WII of the coastal State as expressed in ~ l r municipal law" The Knrted States, the United Kingdom. and st least 14 ather governments still regard the Indonesian waters as high sese, GRUT B ~ l ~ i l i

CEITUL OFFICE OF I I F O R ~ T ~ O R , T ~ E

TERMTDRUL

SEI 6

11960)

TERRIT'ORIAL SEA been no right to exclusive fishing areas in the high seas.11 Thus, in order to claim exclusive fishing rights it has been necemary to claim cc-extensive territorial seas. In 1966, however, at a meeting of the Sixth Committee of the United Kiatians, a new concept vr.as introduced when Canada proposed the creation of a contiguous zone for exclusive fishing beyond the three-mile rerritorial sea and which would extend to a limit of twlve miles.18 Canada again proposed this concepr at the 1968 Geneva Conference.lq At the 1960 Conference the Lnited States Joined Canada in proposing a six-mile terntorial sea and an additional six-mile exclusive fishing zone.2o This "six-plusbeen adopted by Senepal, South Africa, TunUruguayz1 and may well be on Its way to adoption by custom.

The right to exclusive fishing is one of those V ~ ~ ~ O U S

partial

jurisdictional rights which could well be exercised by a coastal state in specified areas of the...