ELECTRONIC RECONNAISSANCE FROM
THE HIGH SEAS AND INTERNATIONAL LAW
Oliver J.
Lissilzyn
The controv('rsy he tween the United SLateR and the North Korean auLhorities ('onsl'qlH:nt upon the seizure by the laLL('r of U.S,S. Pueblo on 2:~ January I ')(IB revolved in part around lJul'stions of facl. Th,~ North Korl'an aulhorili,!S ael'us('d Ill!' !'hip or delilll'r:1t,'ly in-truding into the L!'rritorial s,'a c1ainu'd by them (apparently 12 miles in widLh): the United StaL!'s dl'nied thaL the ship had approached the North Korl'an ('oast so c1osl'ly, A t no Lillie, ael'ording to published data, have the NorLh Kon'an authorities asserted the right to seize Lhe ship on the ground that it had been ('Ilgagcd in eleels lInie reconnaissance of North Korl'a while n'maining on the high t'cas. Abstenlion from making such a claim of right corn-sponds to Ill(' pa\l('rn of ('O/Hlud follow,'d in ,'0111-par:1hlt- silualilln~ hy Ih,- Sodd Ilnioll.' Tlll'rt- i~. fllrllll'rmort'. no availahlt,
,·\,i-eI"III'"
Ihat lilt, Nmlh (\01"'0111 alllhorili,'~ hav,' formally I'w,'lainwd or c'~lahli~I\I'd oul~i(!t, IIII' L!'rrilorial S"iI "laimc,(1 h\'them a contiguous zone for security control of navigation.
I t has, nevertheless, been suggested that there may he a Lrend in interna-lional law loward Ih,' emergl'ncc~ of a righl 10 prodaim ilnd cnforl'e on Ihl' hi:dl s,'as ('olltiguous zonl's of un-I'pl'(:i fit'd ex ten L for the: prcven tion or control of electronic reconnilissance by ron'ign vesspls, including warships.2 Al-though furl her IcdlJlologieal proh'l'CSS mily make sueh reconnaissance less and less usci'ul, its utility cannot
uc
said to have already disappeared. Consequently, it seems appropriate to consider the extent, if any, to which such a trend has actuillly manifestl'd itself.I t is conCl'ivahle that under interna-lional law a ('oastal staL!' could have at le'a,,1 Ilm'l' killel!' of rip:hls d"!'ip:nl'cI to "lIahl" il 10 pn'\','111 or 1'IIIIIrol fllf('ip:1I ,'It'c'l rOlli,' \'I"'lIl1l1ai:-::-:anl'I' fro II I aeljlll'l'lIl
art'a~ of Iht' high ~t'as:
Fir:-:I. tlu: righL 10 prodaim COII-tiguous zones in whieh il could forhid
The opinions shared in this paper are those of the author and do not necessarily reflect the views and opinions of the U.S. Naval War College, the Dept. of the Navy, or Dept. of Defense.
all vessels, including foreign warships, to engage in electronic reconnaissance of any kind, with a concomitant right to enforce such prohibition by seizure and forfeiture of the offending ship and, possibly, imposition of criminal penal-ties upon the ship's personnel. I n the
Pueblo incident, the North Korean authorities seem to have, in fact, eo me close to enforcing the policy underlying such a possible right, without publicly enunciating or justifying it.
Second, the right to proclaim con-tiguous zones in which the collection of information about the coastal state by electronic means would be regarded as a violation of international law by the state engaged in such collection, but without the right to seize the foreign ships concerned.
Third, the rip:ht to punish individuals, ineluding members of foreign armed forces, for engaging in ·forbiddcn elec-tronic reconnaissance, in a contiguous zone of the high seas, when such indi-viduals are apprehended within the terri-torial jurisdiction of the offended state. Such a right, hy itself, would probably be the least dfective safeguard of the intrn'st of tht' coastal stall' in con-trolling elrclronic reconnais:::'\Il('t'. II could be combined, howevt'r, with the second type of po !'Sible right:::.
But the statement that a state con-ceivahly could have certain rights under international law docs not imply that it
already has them or that there is a trend toward the emergence of such rights or that it is desirable for them to exist. Rules of international law usually re-flect an accommodation of several in-terests and rest on a consensus which can be formally manifested in a treaty or inferred from uniformities in the practice of states. What, then, arc the relevant existing or emerging rules?
The most authoritative, though not uniwr:::ally hinliin~ in u formal !'('m;p, guidi'S to the rdevanl inlernational law of the sea today art' two (; 1'l1(wa Con-venlions on the Law of thl' Spa
concluded in 195B-tlll' Convention 011
the Territorial Sea and the Contiguous Zone and the Convention on the High Seas.3 Not all states-or even a majoritr of states-are parties to these treaties. In particular, North Korea, which is not recognized as a state by a large number of states, is not entitled to become a party to either of these conventions.s Nevertheless, since many of the provi-sions of these treaties represent rules generally accepted by the international community, they are an appropriate starting point for an analysis of the relevant content of international law and of trends in it.
Directly relevant to the question of establishment of contiguous zones for security purposes is article 24 of the Convention on the Territorial
Sea
and thl' Contiguous Zone, which reads as follows:1. In a zone of the high seas contiguous to its territorial sea, the coastal state may exercise the control necessary to:
(a) Prevent infringement of its customs, fiscal, immigration or :-:anitary n'~lIlations within its 1er-ritory or tcrriturial s('a:
(II) Punish ill frillW'JII('llt of the ahove regulations commiLled within its territorial sea.
2. The contiguous zone JIIay not extend beyond twelve miles from the basrline from which the breadth of the territorial sea is measured.
3. Where the coasts of two states are opposite or adjacent to each other, neither of the two states is entitled, failing agreement hetwet'n them to the contrary, to ex teml its contiguolls ZOl1l1
h('-yond the median linc l'vcry point of which is (~quidistant from the
frolll which the hn'adth of thl' LerriLoriul ~eas of Llw Lwo sLuLes is mcasured.
IL will he noLed Lhut "!:ccurity" is not onr of the specified purpo~es for which contiguous zones may bc established. The omission is deliberate. The draft articles prepared by thc International I,aw Commission which formed the husis of the work of the
1958
Confer-ence on the Law of the Sea contained a provision similar to the first two sec-tions of the finally adopted text of article 24.It
did not contain lIny men-tion of "sl'l'uritv" but al!:o olllilled till' word "imllli~r~tion.'·6 A t the Con-ft'rencr, Poland proposed that pllrll~raphI of the arLicle he replacrd
hy
the following text: "In a zone of the high sl'as contiguous to its territorial sea, the coastal state Illay take the measures necessary to prevent and punish in-fringcmcnts of its customs, fiscal or sunilary r~ulations, and violations of its security. "In thc First CommiLlee of the
Con-fl'rc~nce, whl're urnendments required only a simple majority, the Polil:'h pro-pOl:'al was adopted, aftrr lillie reportrd
di8cu~8ion, hy a votr of ~~3 to ~7, with 15 ahstentions.s But in the ph'nury IIIrcting, whrrl~ u t\>'o-thirds majority was ncccssary, the proposal failed of adoption, receiving 40 votes against 27 nrgative votes, with nine ahstcntiom:. I nsh'ad, the Conferencc adopted, by ()() votes to none, with ]:3 lIbstentions, a (I.S. propo~al which became thc text of urticle 24.9 Again, there was virtually no rrportrd discu~!:ion, and the name~
of the statt!S voting for and against the proposal are not listrd.
Although the Polish proposal thus n'cl'ived a clear majority of the delega-tions voting (though not of the H7 dl'legations prrsrnt at the Conrt'renre), thr Im·k of a singlt' vote in oppo~ition t(} till'
U.S.
propol:'al suggesLs thut the I'l'ntinwnt in fu\'or of the Polil:'h pro-pm:al was not a~ I:'trong m: the numhl'r ofvo\('$ cast for it might indicate. This impression is furLher horne out by the failure of any stute, upon signing, raLify-ing, or acceding to the convention, to reserve its right to estahlish contiguous zones for security purposes, although numerous reservations have been en-tered to other provisions of the conven-tion.IO Nevertheless, it should be noted that numerous states, including Poland and the Republic of Korea, are not parties to the convention. 1 1 Some states, including Poland, have had provi-sions in their national legislation for &'eurity zones in the adjacent areas of the high St·US.I2 It cannot be said, thereforc, that article 24, in limiting contiguous zont'S to the purpos(~s stu ted in it, has dedared or estahlish(·d a rule clearly applicable to states which are not parties to the convcntion.I3 But the evidence dors not indicate any trend in state practice toward cxpanding or strengthening claims of right to establish contiguous zones for security purposes. In particular, the authorities of North Korea do not appear to have proclaimed any such zones.
t\rticll' 24 of the Convention on the Tt'rritorial Sea and the Contiguous Zone contains .lIlother rdt'vunt limitation. It statrs that n l!ontigllous zoue "uUly not \·x It'ntl ht~yontl twt,lvr milt,s fl'Om tlll~
hal'c1ine from which the hrcmlLh of tlll~
territorial sea is measured." This means that a state which claims a territorial sea of 12 miles-as do the North Korean authorities-may not have a contiguous zone at all. Although this limitation has also been criticized by some writers, 1 4 it appears to have encountered virtually no opposi Lion in the
1958
Con-ference.1s But it cannot he said to be ahsolutely clear that iL applies to states which are not parties to the convention. But even if the pro\'it'ions on566
foHow that they have a right to cnforce eontig;uous zones for security purpoi'es by seizing or otherwise interfering with foreign warships on the high seas. Article fl of the 195B Convention on the High Seas provides:
1.
Warships on the high seas have complete immunity from the jurisdiction of any state otherthan the flag state.
2. For the purposes of these articles, the term "warship" means a ship belonging to the naval forces of a state and bearing the external marks distinguishing warships of its nationality, under the command of an officer duly commissioned by the government and whose name appears in the Navy List, and manncd by a crew who are under regular naval disci-pline.
The term "high seas," furthermore, is defined in article L as meaning "all parts of tIll' sea that are not included in the tcrritorial sea or in the internal waters of a state." Since article
24
of tIlt' Convention on the Territorial Sea aIHI the Contiguous Zone refers to "a zonc of the high seas contiguous to ... terri-torial sea," it seems clear that the ahsolute immunity of warships provided in article fl of the Convention on the IIigh Seas extrnds to war:;hips within the contiguous zone of another state.This provision, moreover, mm;t he regarded as declaratory of general inter-national law and applicahle to aH states, regardless of their being parties to the convention. The Preamhle of the Con-vention on the lIigh Seas speaks of its provisions as heing "generally declara-tory of estahlished principles of interna-tional law." No such statrment appcars in <Illy of the othcr II)!)B Conventions on thc I.aw of the !-I('a. Arti('h' B,
llIon'over, was mlopll'd without di:-:l'('nl. and no :;tat(~ has mad(, any n':;crvation with rr:;pect to it.16
This view is supported uy the prac-tice of states. Dei'pite the tensions associated with the cold war and similar political conflicts, states have generally refrained from claiming the legal right to interfcre with foreign warships or aircraft outside their territorial seas or territorial airspace, even when there were grounds for helieving that the ships or aircraft were engaged in electronic reconnaissance in close proximity to the territory of the coastal state. Partieu-larly significant in this connection is the attitude of the Soviet Union in the U.N. Security Cou~cil debates concerning the shooting down hy Soviet planrs of U.S. Air l~orcc patrol aircraft. During such a ddlate in Scptemher
19;'4,
after i'urh an aireraft had hcen shot down oVI:r the Sea of Japan,No participant ..• asserted or ad-milled the right to shoot down
r
oreign reconnaissance aircraft over the high seas, no maLLer how closely it approached to the terri-torial sea. Vyshinsky, the Sovict representative, stated:I\Ir. Lodge said that tlw Soviet Unioll rcprl$rntative wm; ap-parently defcnding the right of the Sovict Union to shoot aireraft down ov('r the high seas. I f I\(' hm! not made his spc('ch in haste tl\('11
I alll sure 1\1r. Lodge would not have said that, for my whole argument on this question was concentrated on proving that the incident involving the Soviet and United States aircraft occurred over Soviet territory and not over the high Sl'ilS. It is tl\('rrfore
ahsurd to suggest that
I
could l)(~ defending tlw right of any State to shoot aircraft down over thc high seas.Very f:imilar was the dehate in Lhe Security Council in 1960 after a U.S. Air Force H.B-47 paLrol plane had been shot down by Soviet aircraft. Again, the Soviets charged the plane had intruded inLo Soviet airspace and disoheyed an order to land. None of the nations involved in the debate-including the U.S.S.R.-"claimed or admitted the ri~ht of a state to shoot down a foreign aircraft over the high seas, even if it flies within close proximity of the state's territory and even if it may he engaged in military reconnaissancc," although several representatives, including the SovieL, "suggested that flights close to the territorial sea of another counLry may be undesirahle as possihly leading to illcidl'nLs ..• " Indeed. LIlt' BriLish reprrsenLaLive, wiLhout conLradicLion, "expressly upheld the right to conduct such flights for reconnaissance purposes, and said that Soviet aircraft had engagcd in such flights wiLhout being shot down."!S And when North Korean forces shot down a U.S. Navy EC-121 n'connaissance aircraft in April 1969, once more the alle~aLion was that it had inLruded inLo North Korean airspace.! 9
IL Lhus appears Lhat the Sovietllnion and other Communist sLaLes or aUlhori-tics have never officially claimed a right 10 attack or inlerfere with forcign air-craft over the high seas in proximity to their coasts, on the ground that such aircraft was, or could he reasonably suspected of heing, engaged in clee-tronic reconnaissance. There is nothing to indicate, moreover, that foreign surface vessels, and particularly foreign warships, are in this respect considered to be different from forcign aircraft. And no staLe appears Lo have advanced the view that electronic reconnaissance from the high seas justifies an attack on Ihe ship or aircraft engagcd in iL as a matter of the coastal state's right of sci f-,Icfcn:::e.
The record furlllt'r indicalt's Ihal ~ovieL-hloc govcrnmenls do nol appear 10 IHlve eVl'r offil'ially ass"rled Ilwl
electronic reconnaissance from the high seas is a violation of in Lt'rnaLional law . In this conlleclion, it is also signifieanL that the Outer Space Treaty of 1967,2 0
which is largely a product of negotia. tions heLween the Soviet Union and Lhe United StaLes and to which both staLes arc parties, contains no prohibition of miliLary reconnaissance from outer space.
The analysis here presenLed, which indicates that there is no support in the official claims or views of states for the position that electronic reconnaissance from the high seas justifies an attack upon or interference with foreign ships or aircraft engaged in such reconnais-sance, is, of course, limited Lo the relaLions of sLaLl~S aL pc:we with em:h other. It is obvious that in time of war enemy warships and military aircraft on or over the high seas may be attacked, whether or not they arc engaged in reconnaissance. The question whether the relations between the United States and the NorLh Korean authorities in 196B and 1969 involved, despite the armi!;tice of I ()!'i;3, dements of hel-ligerency and Lherefore gave the laLLer a right to <tLLaek U.S. warships and air-craft engaged in c1eetronie reconnais-sance from Ihe high seas or airspace ahove the high s,~as is ouL:;ide the senpe of Lhis article. North Korean authorities do not appear to have claimed any such right in cOllneeLion wiLh the seizun~ of the U.S.S. Pueblo or the shooting down of the EC-12I.
It has been suggested thaL although "passive" electronic reconnaissance from the high seas may be permissible, a different rule mayor should <Ipply to "acLive" reconnaissance in which the observing ship or aircraft sends, for example, deceptive signals to create Lhe fal:,(, irnprcggion thaL iL ig within Lh(' tt'rritorial g,'a or air:'pal'e of thl' coastal ,;tal(' for tlw Jlurpo",' of ((·"tilll! tl\(' latkr's reaclion lilllt'.2 J Although Ihi:;
officially and publicly drawn by any state.
The suggcstion that there mayor should he a trend in international law toward making electronic reconnais-sance from the high seas unlawful, and permitting coastal states to establish contiguous zones to prevent it, is, in large part, based on the contention that such reconniassance operates unfairly against the smaller and weaker coastal states that do not have the capabilities to engage in similar reconnaissance activities off the coasts of the stronger states? 2 The record does not indicate
that such a trend is already under way. First, the fact that on certain occa-sions Some states or authorities (in-cluding the U.S.S.R. as well as North Korea) have actually attacked or inter-fered with foreign reconnaissance air-craft or vessels {as in the case of the U.S.S. Pueblo) over or on the high seas has no significance with respect to the development of a new rule of law in the light of their failure to admit such acts or attempt to justify them in legal terms. They have, indeed, sought in all such cases to create the impression, through official statements, that the foreign aircraft or ships had violated their sovereignty by intruding into their territorial airspace or territorial sea and that the acts of interference took place in such airspace or sea. The failure to claim a legal right of interference with foreign vessels or aircraft on or over the high seas in such situations shows that the coastal states or authorities con-cerned did not helieve that such a claim of right would be legally tenable or acceptable to the international com-munity or, perhaps, in their own best interests.
Second, the number of small states or entities that have committed such acts of interference appears to havl' been very small. The evilielll"e tlllll' fail~
to support the contention that small states in general have an interest in estahlishing a right to intl'rferl' with
foreign ships or airf'raft engngl'" in e leclronic reeonnai~$al1l'e off thl'ir coasts on or over the high seas.
Third, it is unlikely L1wt a new rule of law assumed to he beneficial to the smaller states
will
come into existence if the stronger states do not favor it. By hypothesis, the suggested rule would work to the disadvantage of the stronger states and therefore is not likely to gain their support.Fourth, there is no evidence that the international community today regards such a rule as desirable or that the sentiment in its favor is increasing.
There remains the question of the right of the coastal state to impose criminal penalties on membl~rs of crews of foreign reconnai:-::-:anel' ships mill air-craft for participation in intelligence gathering from the high seas if they arc subseqliently apprehended within the territory of the coastal state. One of the bases of criminal jurisdiction of states over aliens is the so-called "protective principle," which enables a state to prosecute and punish in its courts foreign nationals for eommiLLing nels abroad against iLs security. Although the scope of the principle is not well de-fincd and its employment in practice is relatively infrequent, its existence is wid('ly rccol-(niz('d in 111l~ Iill'ralur(' of international law and is ren.:ctl:d in a substantial number of provisions in na-tional pcnal laws. After World War
I,
the Frcnch Court of Cassation upheld its application in the French courts against foreign nationals such as a Spaniard who was convicted of a crime against French security committed during the war in Spain by maintaining correspondence with enemies of France.23 If this prin-ciple is interpreted broadly, it can be applied to persons engaging in intelli-gl'nce gathcring,by
electronic or otherIII l'.1I1 1', from the high SI'<l!' or lwen from
II\(' Il'rrilol"Y of anollll'r ~I:III'. Sill'" II
(dt'l'pile Llw Frt'l\l'h pn'Ceut'nls) mill un~uJlJlorlt'd hy eonsislenL !'lall' Jlme-lit·I'. In a world in whil"h all LIlt' I'lrollW'r Jl0\\'I'rl' havt' mainlainl'd for a lOll!! linll' largt' inlt'lIigt'nct'-galht'ring t'sluhlit'h-nwnls, a lihl'rul uJlpliealion of Lhe "pro-ll'l'liV!''' principlc would (~x pO!'e a suh-slanlial number of individuals lo erimi-nul pcnalties and would probably work to common disadvanlage.
Tlw fm:l lhaL Lhe persons accur;cd of violuling lht' security of llw co.lslul sluLe hy e1l'dronie reconnaissance aded in llw prrformanct' of lheir oCficiul dUlies Ut' mililary personnel or government rlllployet's is anolher factor lo he con-!'idcred. There arc old preeedenls for the view lhuL soldier!' invading the Lcrrilory of anolher slale ill lime of peuce cannol bt' madc pcrsonully Iiablt' hy lhc lallcr for the acls of violence lhey eommiL in lhaL lerrilory pursuunl 10 ordt'rs;24 huL in rt't'clIL y('urs a numher of uirmen arriving in inlruding foreign military or !'lalt~ uireraft haVI' bc('n prosccull!d and punished for llw inlrut'ion wilhouL giving rir;e lo the complainl lhaL such exercise of jurisdiclion is unlawful solcly 011 the ground lhuL thcy had acled in the performance of official duly.25 All lhese cases, however, huve involved ehurges of inlrusion rUllwr lhan reconnuis..<;unce from the high seus. Tlwr(! uJlpears lo he no pn'e('denl for proseculion hy a t:ouslul slull! of foreign mililury or olher governmenl personnel for lhe latter lype of aCLivity. The law in lhis maller eannol hc rcgurtled Ut' wcIl sl'lllrd, hut lhc official stalus of such
569
personnel is .1 weip;hL in Lhe hulunee
ugainsL lhc rrasonublencss ulld lawful-ncss of such proseculion. Also, lhe possihilily of such proseculion ufler Lhe apprehension of the personnel con-cerncd wi thin the lerriLory of the coastal slale cannoL hc regarded us an rfft'clive !'aJl('lion uguinsl elt'dronic rt'connaist'unce. This is slill mlOlhl'r fa('[or 10 hl~ consith'rt'd in weighing mul haluneing LllI' inll'resls involvl'd. Apl'rt'ht'nsion of lilt' uceusI'd I'l'rsons wilhin the lerriLory of lhc coat'lul t'lale afll!r volunlary ('Illry inlo iL i!' noL likdy 10 III! u frl'lllll'nl ot'(:lIrn'lll:l', and LIlt! I'lllploynll'nl of Ilris hust! of jllrisdic:lion would he haplwzurd, lhrowing furllH'r doubL on ils reasonableness. All in all, it muy he concluded lhat inlernalionallaw docs and should prohibit proseculion by a coastal state of foreign military or other government personnel for elec-tronic reconnaissance from the high seas.
Allhough inlernalional law docs noL forbid eleclronic reconnaissance from the high seas and docs not empower the coastal slale lo inlerfere with foreign wurships or aircraft engaged in iL, such reeonnaissunce is likely lo IH~ resenLed hy co as luI slutes and Lo heigh len inLer-nuLionul tensions. I t should he resorled to, therefore, only if careful sludy indieules that ils co!'ts are substanlially oULweighed by ils benefils lo the staLe Lhat cnguges in iL. The Iwed for il may d('C\irw wilh the furlher dtwdo(lnlt'nL of olher means of sllryC'iIIanee "nd inldli-~t'n(·(' ~alh('rjn~.
FOOTNOTES
1. Sl'e, C.!!., Oliver
.1.
Li~ilzyn. "Tltl' Trcatment of Acrial Irltmdl!rs in Hcccntl'ral:tit:e and International Law," 1'lIe American Journal of International Law, October J 953, p. 559; OliverJ.
Lissitzyn, "Some Legal Implications of the U-2 and RB-47 Incidents," ibid., January 1962, p .. 135.2. Sec, e.g., the paper of I\lr. William E. Butler, in American Society of International Law, 63d Annual Meeling, April 1969, Proceedings, p. 7.
3. U.S. Treaties, etc., United Slales Trealies and Olller Inlernational Agreements,
4. As of 1 January 1969, 39 statcs have ratified or acceded to the Convention on the Territorial Sea and the Contiguous Zone, and 43 states have ratified or acceded to the Convention on the High Seas. Sec U.S. Treaties in Force, 1969, p. 31O-31l.
5. Sl'e articles 26 and 2f1 of the Convcntion on the Tl'rritorial Sea and thl' Contiguous Zone and articles :11 and 33 of the Convention on the High Seas. North Korea has not bren invitcd by the United Nations General Assembly to become a party to either of these conventions under these articlcs.
6. Yearbook of the International Law Commission, 1956, v_ II, p. 264. The latter word was insertcd at the Conference.
7. U.N. Conference on the Law of the Sea, 1st, 195f1, Officinl RI'(·ords. A/CONF.I :1/:19 (Geneva: 19511), v. III, p. 107,232. The Repuhlie of Korea and Yugo~lavia proposed the insrrtion of the words "or security" in paragraph 1 of the Commis..<ion's draft. Ibid., p. 107,226.
fl. Ibid., p. Ull. The states voting for and against the proposal are not listed in the Official Records.
9. Ibid., A/CONF.13/3f1, v. II, p. 40, 126.
10. For the texts of all reservations and objections to thcm src Multi/ateml Trl'{l/il's in Respect of Which till! Sl?creLary-General Performs Dl'positary Functions: Ust of SiglllltUT('." Ratifications, Accessiolls, etc. as at 31 December 1968, ST/LEG/SEILD/2 (New York: lJnitl'd Nations, 1969), p. 3:34-33f1.
11. Yugoslavia, which favored the addition of the word "security" in article 2'~, has ratifil'd the convention without any reservation. Ibid.
12. As of 1959, the list of such statl'S inl'lud<-d Argentina, Chill'. Ecuador. EI Salvador, Grl'ec(', lIonduras, Iran, Bl'puhlie of Korl'a, Poland, Saudi Arahia, V(·Jl(·.mda, aJl(1 Yu~o~lavi •• : and, less cIl'arly, Frlllll'e, J{'.II1:lIIh., and thl' U.S.S.IL Unill'd Nalions I..·gislalivl· S,·ri.·,., /m,'.' 111 .. 1
Rl'gu/aliolls 011 till! Rrgime of rim /ligl, S'·II .• (N('w York: IJnih'(1 Nalions, "Hil). v. 1.1'. ;'1, hI.
()7, 7], 7:1, 110, 111, 117, 1 16, l:lI, 1:1·1·;ibitl., Supp/emellt ..• (N('w York: Ullih'd Nalions, 1(1;"1), espc('i:1IIy p. 23, 24, 27, 211, :10. Of these states, only Rumania, U.S.S.R., Vl'nezuria, :lIId Yugoslavia had hy I
.r
anllary ] 969 become parties to thl' Conv(mlion on the 1't'rritorial Sl'a .1I:d the Contiguous Zone. U.S. TTI'alie .• in [loree, 11)()I), p. :111. Communist China apP"ars 10 havl' established several limited "military security" areas or thl' like on tlw hi~h seas :Illjacent to its territory in which the movements of foreign vessels are forbidden or restricted. SI'C '1':10 CIIl'n~,"Communist China and the Law of the Sra," The American Journal of Intl'rnatiollal Law, January 1969, p.17, 64-(,5.
l:1. Cf., in this connection, the judgment rendered by the Jntemational Court of Justice in 11)('9 in the North Sea Continental Shelf Cases We{/eral RepulJlic of Gerlllany v. Nl'tlil'rlam/s), Tl'ported in Illtemational [,aw Materials, 1\1ay 1969, p. :HO, in which the Court hdd Germany, not a party to the 195f1 Convention on the Continental Shelf, not bound by a rule set forth in lhat eonvl'ntion. The omission of "sceurity" from the list in artielc 24 has bel'n criticized by 8Om(' wril('rs. See, e.g., i\lyres S. McDougal and William T. Burke, The Public Order of tTle Oceans (New Haven: Yale University Press, 1962), p. 590-591, 604--(,07.
H. See McDougal and Burke.
15. \' enczlIcla, howeycr. ratified the eonVl'ulion "wilh I~"pr('sg n'~crvalion in Tl·gp.'I·1 of .•. parah'Taphs 2 and :1 of arlit'le 2·1· .•. " An~lraIia, Ihl' Ndl ... rlalllls. IIIl' lInih',1 King(lolII.lIIlll the llnilt'd Siall's ohjl'rlt'(llo Ihi~ n·~(·rvalioll. MII/li/IIII'ml Trl·llliI· ... p. :1:11-:1:111.
lb. lI.N. Confw'III'I' on Ihl' Law or 1I1l' Sl·a. I~I. A/CONF.I:I/·JI). v. ·1, 1'. ()7·ib; ibM .. A/CONI'·.l:I/:III, v. 2, p. 21. 51J-() 1; Multi/lIlI'TtI1 'fTl'lIliI· .. , p. :I J.II-:I'~2. In proposin~ Ihl~ provision which eventually hel~ame artit'le II. Ihe Intl'rnaLional Law~ Commif8ioll said: "The prilll'ipll' embodied in parab'Taph I is g('ner:.lIy :wI'('pll'd ill illlt'rnalional law," llllih~d Nalions, YI'lIrl"m/, of tlle Intrrnationlll taw (;olllllli .... ion, 1<)56, v. II, p_ 2110.
17. Oliver J- Lissitzyn, "Some Ll'gal Impliealions of the U-2 and thl' IW-4·7 lnci(kntg," '1711' American Journal of International Law, January 1962, p. 135, citing U.N. Security Council, Officinl Records, 9th Year, (,79th and 6f10th Meetings (10 September 1954), Does. S/P.V. 679, 6f10.
In. Ibid., citing U.N. Security Council, Officinl Records, 15th Year, 1.If10th to 1.11.13rd Meetings (22-26 July 19(0), Docs. S/P.V. nflO-flB3.
19. See, in general, U.S. Congress, House, Committee on Armed Services, Special Subcommittee on the U.S.S. Pueblo, Inquiry illto tlie U.S.S. Pucillo antI EC-121 Plane IncitIl!nt.~,
••• hack over 20 years and throughout the period of this administration ... , we have had a poliey of rl'eonnaissanee flights in the Sea of Japan similar to this flight. This year we have had already 190 of these flights without incident, without threat, without warning at all. . .. I have today ordered that thl'.$e flights be continued. They will be proteeted ... Ibid., p. 377.
20. U.S. Treaties, ctc., United States 1'reaties and Other International Agreements, v. XVIII, pt. 3, p. 24·10.
21. Sec, e.g., the remarks of Professor Roger Fisher, American Society of International Law, Proceedings, 1969, p. 23.
22. Sce, especially, the paper of l\lr. William E. Butler, in Proceedings, 1969, p. 7.
23. SCI', in gl'neral, William W. Bishop, .Jr., Intl'rnatiollal Dow: Case.~ and Materials, 2d cd. (Boston and Toronto: Little, Brown, 1962), p. 461-465, and sources there cited; American Law Institutl'. Re.~tatemellt, Sl'colld, Foreign Relations Laws of the United States (St. Paul: American Law Institute Puhlishers, 1965), p. 92-94.
24. Sec, especially, the cases discussed in Charles C. Hyde, International Law Chiefly as Inll'Tprl'ted ancI Applied by tile United States, 2d rev. ed. (Boston: Little, Brown, 1945), v. 1, p. 1120·1122.
25. For some eXillnples, sec Oliv('r J. Lissit7.yn, "The Treatment of Aerial Intruders in Reeent I'raeti('e and International Law," 1'111' .. Imerican Journal of International Law, Oetober 195a, p. 559,5(,5·566,5111-5115; Lissit7.yn, 1%2, p. 135-136. Cf. "Aerial Intrusion for Hostile Purposes," Tile American Journal of International I..aw, April 1956, p. 442.
